[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: PRIORITIES AND THE RULE OF
LAW

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

OCTOBER 12, 2011

__________

Serial No. 112-66

__________

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------

Subcommittee on Immigration Policy and Enforcement

ELTON GALLEGLY, California, Chairman

STEVE KING, Iowa, Vice-Chairman

DANIEL E. LUNGREN, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
TED POE, Texas MAXINE WATERS, California
TREY GOWDY, South Carolina PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida

George Fishman, Chief Counsel

David Shahoulian, Minority Counsel

C O N T E N T S

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OCTOBER 12, 2011

Page

OPENING STATEMENTS

The Honorable Elton Gallegly, a Representative in Congress from
the State of California, and Chairman, Subcommittee on
Immigration Policy and Enforcement............................. 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration Policy and Enforcement............................. 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 9

WITNESSES

John Morton, Director, U.S. Immigration and Customs Enforcement
Oral Testimony................................................. 10
Prepared Statement............................................. 13
Chris Crane, President, National ICE Council
Oral Testimony................................................. 49
Prepared Statement............................................. 51
David B. Rivkin, Jr., Partner, Baker & Hostetler, LLP,
Washington, DC
Oral Testimony................................................. 57
Prepared Statement............................................. 60
Ray Tranchant, Director, Advanced Technology Center, Tidewater
Community College
Oral Testimony................................................. 66
Prepared Statement............................................. 68
Paul Virtue, Partner, Baker & McKenzie, LLP
Oral Testimony................................................. 71
Prepared Statement............................................. 74

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration Policy and Enforcement............. 4
Letter from Robert M. Morgenthau, of Counsel, Wachtell, Lipton,
Rosen & Katz, submitted by the Honorable Zoe Lofgren, a
Representative in Congress from the State of California, and
Ranking Member, Subcommittee on Immigration Policy and
Enforcement.................................................... 23
Memorandum from John Morton, Director, U.S. Department of
Homeland Security, submitted by the Honorable Ted Poe, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration Policy and Enforcement............. 28
Excerpted Material from hearing held on July 26, 2011 on the
``HALT Act,'' submitted by the Honorable Zoe Lofgren, a
Representative in Congress from the State of California, and
Ranking Member, Subcommittee on Immigration Policy and
Enforcement.................................................... 89

APPENDIX
Material Submitted for the Hearing Record

Prepared Statement/Memo of Janice Kephart, former Counsel, 9/11
Commission, National Security Director, Center for Immigration
Studies........................................................ 100

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: PRIORITIES AND THE RULE OF
LAW

----------

WEDNESDAY, OCTOBER 12, 2011

House of Representatives,
Subcommittee on Immigration
Policy and Enforcement,
Committee on the Judiciary,
Washington, DC.

The Subcommittee met, pursuant to call, at 3:05 p.m., in
room 2141, Rayburn House Office Building, the Honorable Elton
Gallegly (Chairman of the Subcommittee) presiding.
Present: Representatives Gallegly, Smith, King, Gohmert,
Poe, Gowdy, Ross, Lofgren, Jackson Lee, and Waters.
Staff Present: (Majority) Dimple Shah, Counsel; Marian
White, Clerk; and (Minority) Tom Jawetz, Counsel.
Mr. Gallegly. Call to order the Subcommittee.
Over the past year the Obama administration has made
numerous announcements seeking to grant benefits to illegal
immigrants and other removable immigrants without approval from
Congress. These announcements are in defiance of both the
constitutional separation of powers and the will of the
American public. They are part of the Administration's ongoing
efforts to grant amnesty to illegal immigrants.
From the onset this Administration has failed to adequately
enforce our immigration laws. What makes this worse is that the
supporters of the comprehensive or targeted amnesties for
illegal immigrants have consistently failed to win approval
from Congress or gain support from the American people. Since
comprehensive immigration reform has failed to pass in the
legislative branch, the Obama administration has now decided to
implement various programs that will benefit potentially
millions of illegal immigrants.
What the President is doing is unfair to the 26 million
American workers who are unemployed or underemployed. Amnesty
is also unfair to those who are waiting to legally immigrate to
the United States.
These administrative decisions will only attract more
illegal immigrants looking for the same opportunity and take
more jobs from American workers. This policy makes no sense
during a time of economic hardship and high unemployment.
It is Congress' job to create immigration policy and it is
the President's job to enforce it. The Administration's
discretionary power should be used only on a case-by-case basis
in compelling circumstances. In its most recent announcement
the Administration opened the door to the possible amnesty of
300,000 immigrants who are currently in the process of being
deported. This is a clear abuse of discretion.
I, along with other Members, have urged the Administration
to reverse what we consider this misguided policy.
At this point I would yield to the gentlelady, my friend
from California, the Ranking Member, who agrees with me on
almost everything.
Ms. Lofgren. Thank you, Mr. Chairman. It wasn't long ago,
just 11 weeks, that this Subcommittee held a hearing on H.R.
2497, the HALT Act. That bill was a response to the series of
ICE memos that laid out enforcement priorities and provided
guidance on the use of agency discretion to best meet the
priorities.
At that hearing we examined the memos closely and we saw
that they contained nothing new, nothing surprising. The memos
are actually just common sense.
We know that Congress has dramatically increased the
resources available to enforce our immigration laws, broken as
they are, and enforcement of those laws is at an all-time high,
with respect to removals, criminal prosecution of immigration
violation, worksite enforcements actions, fines, jail time and
assets at the border. In fact as of 1 month ago the
Administration had removed 1.06 million people from the country
in just 2\1/2\ years. At that pace the Administration will
remove many more people in one term than President Bush removed
in his full two terms, 8 years, as President.
Still the reality is we don't have the resources to remove
all 11 million undocumented immigrants even if we all agreed
that that was a smart and humane response to the current
situation. Given that we will always have limited resources, it
just makes sense that we focus first on people who would do us
harm, terrorists and serious criminals, before we turn our
attention to the undocumented spouses of military personnel and
innocent children who were brought here years ago through no
fault of their own.
My Republican colleagues call the ICE memos administrative
or backdoor amnesty. That is hyperbolic and a little bit
partisan because the rhetoric may work in some of these
presidential debates but it isn't really the truth. These memos
setting immigration priorities are not unprecedented despite
what some of my colleagues have said, and the HALT Act I
believe is just more of a partisan attack. It sunsets at the
end of the President's first term and would deny him the same
authority that every President has always had.
The guidelines for the use of prosecutorial discretion date
back to an INS General Counsel memo from 1976, a year after I
graduated from law school. Additional memos have been issued in
the intervening years in both Republican and Democratic
administrations, and these earlier memos are the predecessors
of the memos the majority is complaining about today. The
majority never said anything about those earlier memos or the
factors listed in those memos until now.
The guidance that most closely resembles what ICE issued
earlier this year came in November of 2000, from then INS
Commissioner Doris Meissner. At the HALT Act hearing we
reviewed the origins of the Meissner memo, but it is worth
reviewing once more.
In 1999, a bipartisan group of 28 Members of Congress sent
a letter to former Attorney General Janet Reno stressing the
importance of prosecutorial discretion in the immigration
context and asking her to issued necessary guidance. In that
letter the Congressmen cited widespread agreement that some
deportations were unfair and resulted in unjustifiable
hardship, and they asked why the INS pursued removal in such
cases when so many other more serious cases existed. They urged
for a priority of enforcement resources, asking the Attorney
General to develop INS guidelines that use prosectorial
discretion similar to those used by U.S. attorneys. That letter
was signed by the current Chair of Judiciary Committee, Mr.
Smith, as well as many other very conservative Members of the
House, including former Chair Henry Hyde, former Chair Jim
Sensenbrenner, Brian Bilbray, Nathan Deal, Sam Johnson and
David Dreier.
During the hearing we had, Mr. Smith argued that his 1999
letter wasn't relevant because that letter asked for discretion
on a case-by-case basis and even then only for lawful permanent
residents. But with respect to the first point it is baffling
because, as Director Morton I am sure will tell us, the
prosecutorial discretion memo says that ICE officers, agents
and attorneys should always consider prosecutorial discretion
on a, what, case-by-case basis. The decision should be based on
the totality of the circumstances. And the requirement that had
the discretion be exercised on a case-by-case basis is
mentioned three times in the two memos under scrutiny.
As to the second point, I have to say that any fair reading
of Chairman Smith's 1999 letter would show it is in no way
limited to lawful permanent residents nor should it have been.
I think that it is ironic that the Chairman's 1999 letter
really set in motion the chain of events that results in the
memo we are discussing here today for a second time.
However, I think there is an even deeper irony. The 1999
letter argues for discretion to consider hardship when
initiating or terminating removal proceedings. But the letter
fails to acknowledge that the 1996 changes to the immigration
law that were championed by Chairman Smith were largely
responsible for the cases of hardship featured in the letter.
Since that time, we have done virtually nothing to reform
our immigration laws, even though they are in need of it. Small
wonder that we continue to have unjustifiable hardship and that
we need to review these cases on a case-by-case basis.
And I would ask unanimous consent for my entire statement
to be submitted into the record.
[The prepared statement of Ms. Lofgren follows:]

__________

Mr. Gallegly. Without objection. I would just like to
clarify my earlier statement; not always but I appreciate my
good friend's comments. And we will move along. We have some
very distinguished members, witnesses on our panels today. Each
of the witnesses' written statements will be entered into the
record in its entirety. And I would ask that each witness try
to help us abide by the time limits so everyone will have an
opportunity to ask questions and we will get to everyone today.
Our first--I see the Chairman of the full Committee has
arrived. Mr. Smith, do you have an opening statement?
Mr. Smith. Thank you, Mr. Chairman, I do. Sorry to be late,
I am coming from another Committee hearing.
Immigration and Customs Enforcement's primary mission is to
promote homeland security and public safety through criminal
and civil enforcement of Federal immigration laws. ICE is also
tasked with enforcement of U.S. intellectual property laws, and
this Committee has jurisdiction over both.
While I appreciate ICE's intellectual property efforts,
this Administration doesn't often take enforcement of ICE's
immigration laws seriously enough.
Congress has voted against amnesty for illegal immigrants
several times in recent years. But this Administration seems
committed to backdoor amnesty through administrative action
even if it can't get congressional approval.
Over the past year the Obama administration intentionally
allowed illegal immigrants to remain in the United States.
For example, the Administration caved to pressure from
liberal immigrant advocacy groups and announced ``changes'' to
Secure Communities. This program keeps our neighborhoods safe
by identifying illegal and criminal immigrants in police
custody who have been arrested and fingerprinted.
The changes made to Secure Communities open the door to
allow illegal and criminal immigrants to avoid deportation.
Specifically, Director Morton issued two memos to agency
officials about how to exercise blanket prosecutorial
discretion when illegal immigrants are apprehended. Such
authority is acceptable when exercised responsibly on a case-
by-case basis, but Administration officials are using this
power in mass use and abusing this authority.
Two months ago the Department of Homeland Security
announced they will ensure that ``appropriate discretionary
consideration'' be given to ``compelling cases with final
orders of removal.'' According to the Administration, this
review applies to 300,000 pending removal cases. This means
close to 300,000 illegal immigrants could stay and work legally
in the U.S. Why does the Administration continue to put the
interest of illegal immigrants ahead of unemployed Americans?
The policies set forth in the ICE memos and DHS
announcements claim to allow ICE to focus on immigration
enforcement priorities. But that is just a slick way of saying
they don't want to enforce immigration laws. ICE has shown
little interest in actually deporting illegal immigrants who
have not yet been convicted of what they call ``serious''
crimes.
With its memos and announcements, the Administration is
sending an open invitation to millions of illegal immigrants.
They know that if they come here illegally, they will be able
to stay because immigration laws are not enforced.
Administration officials continue to brag about their
``record deportation numbers.'' But several sources, including
The Washington Post, claim the numbers are inflated. Even the
President has stated that the numbers are ``deceptive.''
The Obama administration has all but abandoned worksite
enforcement efforts. Over the past 2 years worksite enforcement
efforts fell 70 percent. Their lack of enforcement allows
illegal immigrants to fill the jobs that should go to
unemployed American workers.
The Administration claims that they have increased the
number of employer audits. But audits do little to discourage
illegal hiring. And employers consider fines often to be just
the cost of doing business.
Even when there is worksite enforcement action this
Administration rarely arrests the illegal workers. The workers
are free to go down the street to the next employer, and
unemployed Americans lose out on their jobs.
While there have been successes in the area of intellectual
property for ICE, the Obama administration is on the wrong side
of the American people when it comes to enforcing immigration
laws.
According to a recent poll, two-thirds of the American
people want to see our immigration laws enforced. But the
Administration continues to put illegal immigrants ahead of the
interests of unemployed Americans.
Thank you, Mr. Chairman. I yield back.
Mr. Gallegly. I thank the Chairman. As I started to
introduce our first witness today on Panel I, Mr. John Morton
is Director of the Immigration and Customs Enforcement, better
known as ICE, at the U.S. Department of Homeland Security. ICE
is the second largest investigative agency in the Federal
Government. Prior to Mr. Morton's appointment by the President,
he spent 15 years at the Department of Justice and served in
several positions, including Assistant U.S. Attorney, Counsel
of the Deputy Attorney General and Acting Deputy Assistant
Attorney General of the Criminal Division.
Welcome, Mr. Morton.

TESTIMONY OF JOHN MORTON, DIRECTOR,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Mr. Morton. Good afternoon, Mr. Chairman, Ranking Member
Lofgren, Chairman Smith, Members of the Subcommittee. Thank you
very much for the invitation to testify before the Subcommittee
on the subject of ICE's recent enforcement efforts.
Let me start briefly with our fiscal year 2011 highlights.
While we are still verifying the final numbers, the preliminary
results of ICE's enforcement efforts for fiscal year 2011 are
quite strong. I anticipate we will have removed about 397,000
people this past fiscal year with a continued emphasis on our
highest priorities: Public safety, border security, and the
integrity of the system. Indeed, over half of the individuals
we removed this past year will have had a criminal conviction.
The majority of the remainder will have been recent border
violators, immigration fugitives, or illegal reentrants.
A few points of particular interest for the Subcommittee:
we maintained an average of 33,400 beds a day, the highest
level of detention in our history and the first time we have
largely met our congressionally mandated average of 33,400.
This level of detention has allowed us to remove on the order
of 216,000 offenders this year, another record and an 89
percent increase over fiscal year 2008.
Pursuant to Congress' direction to identify criminal
offenders in the Nation's jails for removal, we deployed the
Secure Communities Program in nearly 1,600 jurisdictions in 43
States, including every county along the Southwest border, and
assuming we receive continued funding for the program from
Congress, I expect we will deploy Secure Communities nationwide
by 2013, marking the first time we will have a truly
comprehensive system to identify criminal offenders in our
Nation's jails and prisons.
We have also created a permanent partnership with the
Border Patrol to significantly improve the Border Patrol's
ability to deter illegal immigration along the Southwest
border. Under this partnership Mexican nationals apprehended by
the Patrol are transferred to ICE for detention and removal
through a State other than the one in which they were
apprehended. Our initial analysis suggests that this
significantly disrupts smuggling flows. We have done about
37,000 of these lateral removals this year.
In addition, our felony prosecutions for illegal reentry
are at an all-time high, 10,000. And on the worksite
enforcement front we have conducted nearly 2,500 audits,
arrested 217 employers and managers, and levied $6 million in
civil penalties, all enforcement records. We have also had
another strong year in terms of criminal investigations, and I
think it is very important for everyone to remember that ICE is
deeply involved in criminal enforcement in addition to
immigration enforcement. Indeed, as the Chairman mentioned, we
are the second largest investigative agency in the entire
Federal Government, behind only the FBI, and we investigate
everything from child pornography and sex trafficking to export
and import violations, drug trafficking, counterfeiting and
piracy and transnational gangs. We have 7,000 special agents
throughout the United States and 47 countries overseas. We made
over 30,000 criminal arrests this past fiscal year.
A few words on prosecutorial discretion. On June 17th, I
issued a memorandum to our senior managers providing guidance
on the exercise of prosecutorial discretion. This, as Ms.
Lofgren noted an earlier memorandum issued by the agency, is
not a prelude to mass amnesty. They are not an effort to
suspend enforcement of immigration laws. On the contrary, they
are simply a straightforward effort to ensure that our limited
enforcement resources are focused on the Department's highest
enforcement priorities; namely, national security cases,
criminal and drug border violators and those who game the
system.
Even though the agency funding sought by the President a
appropriated by the Congress is at an all-time high, DHS simply
does not have the resources to charge, detain and remove all of
the aliens in the country unlawfully. Instead, like any other
law enforcement agency, we have to focus our resources and
efforts on higher priority violators. This doesn't mean that we
are suspending enforcement for whole classes of individuals. We
are not. We are simply exercising our discretion on a case-by-
case basis in very low priority cases so that we can do more to
remove criminals, secure the border and sanction those who game
the system. This discretion does not confer permanent status on
anyone nor does it prevent the arrest, detention or removal of
anyone where needed.
Let me close by noting how proud I am of the work of the
men and women of ICE this past year. Not only have they
achieved numerous enforcement records, we have done so in the
context of an unsettled national debate on immigration. As the
Secretary recently noted speech at American University, DHS is
often criticized of being either a mean spirited enforcer
pursuing record levels of removal or a lax enforcer engaged in
administrative amnesty. Neither criticism is true. Instead, we
are simply trying to pursue a thoughtful set of enforcement
priorities in the context of limited resources and a law that
needs reform.
With that, I thank you, Mr. Chairman.
[The prepared statement of Mr. Morton follows:]

__________

Mr. Gallegly. Thank you very much, Mr. Morton, and for
watching the light. It gives us all a chance at the plate.
Mr. Morton, you mentioned, I believe the first start of
your statement, this year you have removed 397,000 illegal
immigrants.
Mr. Morton. That is correct.
Mr. Gallegly. Can you give me your definition of removal?
Mr. Morton. Yes, the agency counts formal removal, that is,
people removed pursuant to a formal order either issued by an
immigration officer or by an immigration judge; and since the
previous Administration we also count voluntary returns.
Mr. Gallegly. Well, the thing I want to make sure that we
are clear on is that, to start with, isn't it true that without
counting the voluntary returns the actual removal numbers
dropped dramatically?
Mr. Morton. If you would remove voluntary returns from the
total, obviously the total would be less.
Mr. Gallegly. Those removed voluntarily, are they
physically escorted out of the country or are they given a
notice to just leave?
Mr. Morton. No. In most instances voluntary returns are
under the control of the government.
Mr. Gallegly. Does that mean that they are physically taken
to the border or to the interior or put on the plane and
verified that that is the case?
Mr. Morton. In most instances, yes, the law does allow
both, particularly in the context of formal removal, people to
be removed without being under----
Mr. Gallegly. You mean voluntarily?
Mr. Morton. Well, there is two. There is voluntary return
and what is known as voluntary departure. Two different things,
same basic concept. Certainly instances.
Ms. Lofgren. Mr. Chairman, that microphone is not working.
I wonder if we could use--there is something wrong with it.
Mr. Gallegly. Of the 397,000 removed--to me removed means
they are no longer in country--of the 397,000, can you give me
your best estimate of how many physically left the country and
how many physically remained in the country at least without
verification that they had left?
Mr. Morton. All of those individuals, Mr. Chairman, have
been removed from the country under government control of one
kind or another, departure has been verified. In most instances
it was done literally under the government's physical control;
in certain instances they left on their own.
Mr. Gallegly. On these job site--I was going to go back
here and look--you cited numbers of how many actual job site
inspections you did this year.
Mr. Morton. Yes, sir.
Mr. Gallegly. And you mentioned how many employers had been
fined. And I think you mentioned how many actual people had
been removed. I want to make sure we get to that number removed
and physically--how many employers were fined?
Mr. Morton. The total number of the fines was 6--a little
over $6 million.
Mr. Gallegly. How many individuals?
Mr. Morton. I don't know the answer to that.*
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*The Subcommittee received the following reply from ICE in response
to Mr. Gallegly's question:

ICE response: In fiscal year 2011, 499 Notices of Intent to
Fine were issued.
Mr. Gallegly. We have $6 million that we received in fines.
Mr. Morton. In civil penalties levied by the agency.
Mr. Gallegly. And how many did that represent in actual
removals from the country?
Mr. Morton. We removed, we arrested about 1,500 workers
from worksites this year.
Mr. Gallegly. Of the 1,500 that were arrested, how many
were removed?
Mr. Morton. Some of them are still in proceedings, so I
can't give you a hard answer on that because when we arrest
somebody obviously we have to put them in immigration
proceedings.
Mr. Gallegly. You remember the Chipotle incident?
Mr. Morton. I do.
Mr. Gallegly. And there were significant fines.
Mr. Morton. That case is still ongoing.
Mr. Gallegly. Okay. How many people that were--I understand
37 percent or some fairly significant percentage of the
employees at the job site investigated were illegally working
in the country; is that correct?
Mr. Morton. I need to be careful on that case because it is
still ongoing, but, it would be better to pick another example.
Mr. Gallegly. During that raid were these folks arrested or
were they just cited and released?
Mr. Morton. Um, let me speak more generally, not speak to
Chipotle if I can, Mr. Chairman, because that is an ongoing
case.
Mr. Gallegly. When you do a job site inspection and you
determine in your inspection that the names and numbers don't
match, how many are cited and how many are taken into custody?
Mr. Morton. So the emphasis this year and in past years
since this Administration has taken over has been on the
inspection process and that we have increased tremendously. We
continue to arrest workers that we encounter at work sites, but
not at the same volume as we had before.
Mr. Gallegly. Released and given a date to appear?
Mr. Morton. It depends on the availability of resources and
detention space at that point. So----
Mr. Gallegly. One last question because my red light came
on. Of the 397,000 that you know were physically removed from
the United States, do you have any indication of any recidivism
or any rearrest of the 397,000 that were removed?
Mr. Morton. Not with regard to those 397,000, but
recidivism is a serious concern. We prosecuted 10,000 people
this year for illegal reentry alone and that is obviously an
incomplete figure.
Mr. Gallegly. And of those 10,000 prosecuted how many
subsequently removed?
Mr. Morton. All of them will be removed, many of them in
Federal prison.
Mr. Gallegly. Very good. Ms. Lofgren.
Ms. Lofgren. Before I ask my questions I would like to ask
unanimous consent to place into the record a letter from Robert
Morgenthau, who was the prosecutor in New York City for 35
years and prior to that a member of the U.S. Attorney's Office
in New York, on this issue.
Mr. Gallegly. Without objection.
[The information referred to follows:]

__________

Ms. Lofgren. As I read through the memo and recalling back
to the time even before the Department of Homeland Security, it
seemed to me that every law enforcement agency makes some
decision about what is a priority and what isn't. For example,
today the Mayor of San Jose is quoted as saying there are
people camping on the plaza in front of City Hall. That is
against the municipal code but the police are now chasing down
some murderers. They have got something else that is a higher
priority than the camping violation. It seems to me that is
kind of what you are doing here.
I want to explore why that is necessary, and I remember
when we had the Attorney General before us some time ago I
asked him about staffing levels in the immigration--among the
immigration judicial ranks as well as prosecutors. It is my
understanding, and I guess this is a question, not a statement,
that more than 300,000 cases are currently pending in the
immigration docket and that immigration judges are now setting
deportation hearings for the year 2014; is that correct to your
knowledge?
Mr. Morton. That is correct.
Ms. Lofgren. And so we have got a situation where we have
got hundreds of thousands of people waiting and that is not a
good situation from a law enforcement point of view. If some of
those people are dangerous criminals, others may be the wives
of American soldiers in Iraq, you would want to make a
distinction between those two, isn't that correct?
Mr. Morton. Of course.
Ms. Lofgren. I am concerned about the testimony of the
union, and I just read the written testimony, so we will have a
chance to explore it further with the union representative. But
they suggest that there are down times where they could go out
and just pick up anyone without regard to the priority. But
isn't it true that the arrest cost represents about 4 percent
of the total cost of removal, removing an individual?
Mr. Morton. Yeah, so the point there is that ICE is but one
operator of many in a very complex system that goes from a
point of identification and arrest all the way through removal.
Obviously you have the immigration judges, you have the
Department of Justice's role, you have CBP, you have CIS. All
of these things come together in a fairly complicated way to
form the immigration enforcement system. From our perspective,
this is about how do we maximize the resources that Congress
has appropriated. And in our experience in a given year we can
remove about 400,000 people. And the question comes down to,
who are those 400,000 going to be? And could you have an
approach that said it is the first 400,000 people you encounter
on the street and they are here unlawfully, and you have the
power and responsibility to enforce the law, so remove those
first 400,000.
We have taken a different approach, which is in a world
where there are far more than 400,000 people that we could
remove, we want to focus those limited resources on the ones
that make most sense, and that is criminals, national security
cases, people at the border, reentrants, people who are gaming
the system, fugitives, fraudsters.
Ms. Lofgren. Now I want to explore further the kind of
focusing in on the worst and the cost issues which can strain
everything that government does. It is about $120 a day and if
we are setting things for year 2014, it is a little shy of
$200,000 that we are going to spend to hold somebody in custody
for their hearing. So I am just wondering, certainly the drunk
drivers and the criminals and the felons you are going to keep
those people in custody, would that be correct, waiting for
their hearing?
Mr. Morton. Yes, what you point out is if--because we can't
possibly hold somebody for 2 years for their hearing because it
costs so much so we have a non-detained docket and we have a
detained docket. The detained docket moves relatively quickly,
roughly $120 a day for detention, that doesn't count officer
salary and removal expenses. That moves fairly quickly.
On the other hand, the non-detained docket can take--as you
have already noted, can go out to 2014, 2015 simply for the
administrative hearing, let alone what happens in the Federal
court system. So in that kind of setting we have got to
prioritize our detention resources, our enforcement resources
on those cases that we can move quickly. It is why it makes no
sense to put somebody into detention who requires very
expensive medical treatment or is terminally ill. It just
doesn't make sense, and that is what the prosecutorial
discretion memo is about, is trying to make good calls and
judgment when it comes to allocating very expensive and limited
resources.
Ms. Lofgren. Thank you, Mr. Chairman. My time is up.
Mr. Gallegly. I thank the gentlelady. Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman. Thank you for being here,
Mr. Morton. I am over here. I appreciate what ICE does. My
nextdoor neighbor is an ICE agent, he works all the time. I
admire him and all of you all for what you do.
I have the 20 factors that you have issued through lawyers
saying that they should consider all relevant factors
including, but not limited to these 20 factors. I would like to
make this part of the record, Mr. Chairman. I ask unanimous
consent.
Mr. Gallegly. Without objection.
[The information referred to follows:]

__________
Mr. Poe. These 20 factors that should be considered, were
you directed by the President to issue these guidelines?
Mr. Morton. No, this was----
Mr. Poe. Who told to you issue these guidelines?
Mr. Morton. This was issued by me.
Mr. Poe. So you decided to issue these guidelines?
Mr. Morton. I did.
Mr. Poe. Was anyone in the White House--the questions are
not that complicated. Did anyone in the White House direct you
to issue these?
Mr. Morton. Again, if your question is was the White House
and the Department involved in the formulation of this
memorandum, the answer is yes. Who issued it? I issued it.
Mr. Poe. Who from the White House was involved in this
then?
Mr. Morton. I don't know all of the individuals who were
involved. I do know the Director of Intergovernmental Affairs
handled the principal policy review for----
Mr. Poe. Who would that be?
Mr. Morton. That is a woman named Cecelia Munoz.
Mr. Poe. What is the statutory congressional authority for
prosecutorial discretion?
Mr. Morton. The principal authority is actually a Supreme
Court case.
Mr. Poe. So there is no legislative authority for
prosecutorial discretion, correct?
Mr. Morton. I wouldn't go so far as to say that. Congress
routinely recognizes in our appropriation the need to
prioritize. Indeed, in our most recent appropriation, which is
2010, there is an explicit instruction to us from the
Appropriations Committee to prioritize certain cases over
another. So Congress has long recognized this power and it is a
bedrock principle of Federal law.
Mr. Poe. But there is no statutory authority that you can
cite to me; it is a Supreme Court decision, correct?
Mr. Morton. It is, that is right.
Mr. Poe. Primarily Heckler.
Mr. Morton. Heckler v. Chaney.
Mr. Poe. I will read one statement to you in the Heckler
decision. It says, prosecutorial discretion generally is
nonreviewable, ``except where the agency conscientiously and
expressly adopts a policy that is so extreme that it represents
an abdication of its statutory responsibilities.'' That is in
the case of Heckler v. Chaney. My opinion is that that comes
into play in this case.
There are 900,000 drunk drivers arrested in the United
States a year, approximately, arrests. Would you agree with me
or not if we decided, well, that is just so many people we just
can't get around to prosecuting all those drunk drivers, we are
just going to use our discretion and prosecute only drunk
drivers who kill people? Would that encourage drunk driving or
would it diminish the drunk driving in this country? Do you
think that would have any factor on anybody else out there who
wants to drive drunk?
Mr. Morton. I think that analogy works only if you take it
to an extreme, and I don't think that is the case here.
Mr. Poe. I am just asking about drunk drivers. Do you that
I would encourage more drunk driving if we just gave them all a
pass?
Mr. Morton. I think--listen, Mr. Poe, I was a career
Federal prosecutor.
Mr. Poe. I know your background. I just want you to answer
my question. I only have limited time so don't just keep
talking so that we don't get an answer. Do you think that would
encourage--there are a lot folks who like to drink and drive
and one reason they don't do it is because somebody might just
arrest them and put them in jail. But if we told them, hey, you
are not going get arrested unless you kill somebody, that would
encourage drunk driving in the United States, just like it
would encourage, if you gave a pass on these 20 conditions of
people who are here illegally, you can stay if your wife a
pregnant for example. If we gave them a pass on all of that,
that would encourage more people to come here and try to fit in
one of these categories so if they got arrested they would meet
the discretion of your office and let them go.
That is my problem with this memo, and I think it
encourages the unlawful conduct, whether you want to call it
criminal or civil, it encourages people to come here and stay
here illegally. So I would hope that Congress would deal with
this issue. I think Congress has to legislatively deal with the
issue of prioritizing if we do, rather than expecting the
Director like yourself to decide who wins, who loses, who gets
to stay, who is got to go home.
I wish we had more time to talk, I yield back.
Mr. Morton. Could I just, Mr. Chairman, just address two
quick points? On the question of statutory authority for
prosecutory discretion I would refer you to Title VI, section
202, that does empower the Secretary of Homeland Security to
set enforcement priorities and policies for the Department.
And on your other point of if something is a pass, I agree
if it gets to an extreme, yes, that could be the case, but that
is not what we are doing here, none these people are--this is
not about giving anybody who falls within a particular category
a complete pass or pardon.
Mr. Poe. Well, if I may, one question, it is 300,000
people. That sounds like a lot of folks to me that we are
talking about.
Mr. Morton. But a very important point is we are not going
to be administratively closing 300,000 cases. All we have said
is that we will review the pending docket for cases that might
warrant prosecutorial discretion. I think it is going to be a
far, far smaller number than 300,000.
Mr. Poe. In 6 months give us back the statistics.
Mr. Morton. Be happy to.*
---------------------------------------------------------------------------
*The Subcommittee received the following reply from ICE in response
to Mr. Poe's question:

ICE response: ICE will provide the statistics to the
Committee in April 2012.
Mr. Gallegly. The Chair yields to the gentlelady from
California, Ms. Waters--Ms. Jackson Lee of Texas.
Ms. Jackson Lee. Mr. Morton, this is an important hearing
and I always take comfort or at least delight in acknowledging
your prosecutorial background and history and also your
heritage of understanding the history of immigrants and that
immigrants by and large come to the United States for better
opportunity. And even in 2011 I think we still have the values
that many around the world admire.
So I think it is important that we have a thoughtful, firm
and forceful policy. Needless to say, every time I have an
opportunity I am going to suggest that we have comprehensive
immigration reform. We are the instructors, we provide the
guidance for the Administration, any Administration, whether it
be Republican or Democrat, we certainly work together. But you
cited a congressional provision that talks about discretion
that is tied it our laws and I say our, the laws that are
written by the United States Congress signed by the President
of the United States.
So we would be all better off if we had a road map such as
the comprehensive immigration reform and allow people to access
citizenship, and of course had a pathway for enforcement that
dealt with the issues you deal with every day.
Let me ask some pointed questions if you can give me some
pointed answers. It has come to my attention that the present
Administration, Mr. Obama's administration, has deported over a
million individuals. Can you answer that, sir?
Mr. Morton. To date, yes, that is right.
Ms. Jackson Lee. I understand that may be the largest
number since a number of presidencies and Administrations, is
that not correct?
Mr. Morton. It is. Our overall enforcement efforts are at
their highest as we have ever had as an agency.
Ms. Jackson Lee. Are you using a lot of resources? When I
say that, of course the ICE officers' compensation, overtime,
this takes a lot of money.
Mr. Morton. It does, our overall appropriation is $5.8
billion. For the enforcement and removal operations it is 2.8
billion, of which Congress directs us to spend $1.5 billion of
that, over half of it, the identification and removal of
criminal offenders.
Ms. Jackson Lee. And the memorandum that was written, do
you consider it a thoughtful memorandum?
Mr. Morton. I do.
Ms. Jackson Lee. Do you at the same time as the memorandum
was issued engage with your regional ICE officers, those who
head the regional officers, engage them all the time and listen
to either their concerns or their input on this policy and
other policies?
Mr. Morton. Of course.
Ms. Jackson Lee. And does the memorandum have an open door,
is there a key that is given that literally says leave all--
leave, everyone, is that--you take keys to the detention
centers and provide an open door or the jail houses, provide an
open door for everyone to leave; is that what the memorandum
says?
Mr. Morton. It doesn't.
Ms. Jackson Lee. When your memorandum was issued, a family
and those of us who feel passion for this issue see a lot of
tragic stories. And one in particular was a gentleman who was
in a detention facility in Houston who was crying when he heard
the news on the television. Obviously he was not a criminal
defendant. He was teacher who had been hauled away from his
classroom. I have said to many others before you about my
concern about raids and that kind of thing. He was crying
because he thought had he a opportunity. Unfortunately, someone
decided to be swift on their actions and a man who taught for
20 years, whatever his misstep was, no past priors, et cetera--
this was a teacher--was swished out of the detention center,
and now he is in a different light and different position in
terms of having to get him back. I would say to you that that
aggravates me because I believe in a discretion situation that
case could have been reviewed.
So I ask the question of the vitality of our security under
this memorandum. We just saw the tragedy regarding the Saudi
ambassador. Do you feel in any way that you are diminishing our
responsibility on the issue of criminal aliens or the
protection of the homeland under this memorandum?
Mr. Morton. I don't. National security and criminal
offenders remain our highest priorities, as I think is very
clear from our efforts to date. Whatever criticisms you may
have of the agency, our focus on criminal offenders isn't one
of them. And we, as I mentioned in my opening remarks, will
have removed about 216,000 criminal offenders this past fiscal
year. That is by far the highest number of criminal offenders
ever removed by the agency. We are going to remain focused on
that, and again it is not something that--it is common sense,
it is good policy, but it is not something that the agency
cooked up out of thin air. It is a direction from the Congress
to us in both our 2008 and 2010 appropriations.
Mr. Gallegly. The time of the gentlelady has expired. Mr.
Ross.
Mr. Ross. Thank you, Mr. Chairman. My tact on this is a
little different. Back in Florida where I come from there was
the case of Abel Arango, you may remember, the gentleman from
Cuba who came over in the nineties and committed an armed
robbery and was sentenced and because of the Supreme Court case
in Zadvydas they couldn't keep him for any longer than 6 months
and he was released. Subsequently a couple of years later he
shot and killed a police officer in Fort Myers, and they won't
take him back to Cuba.
My concern about this is that you are obviously aware of
these types of cases. In fact you are so much aware it is in
one of your criteria factors to consider. It says one of the
ones, probably the 16th one, whether the person's Nationality
renders removal unlikely. So when you run across somebody whose
Nationaliy, whether they be from Cuba or Iran or Cambodia or
wherever, is it an automatic prosecutorial discretion because
you can't do anything with them anyway?
Mr. Morton. These are the hardest cases we have because,
you know, we--the answer to your question is we err on the side
of public safety. And so we will detain if the person is a big
danger, even we can't remove. But your point of do we get to a
point where we have to release that person as a matter of
Supreme Court law, the answer is yes, we do. I wish that
weren't the case, but that is the case, particularly with
countries we have no diplomatic relations with.
Mr. Ross. When you do, do you put them under an order of
supervision?
Mr. Morton. We do.
Mr. Ross. And how does that work; is it like probation?
Mr. Morton. It is. We ask people to come in--some people
that we will put on a form of intensive supervision, others
that we order to come in and report.
Mr. Ross. If they violate the order, what is the downside?
They are still not going to be deported, they will still be
here.
Mr. Morton. That is right. We have an inability with
certain countries to effect removal. Cuba, the example you
give, is the prime one.
Mr. Ross. So what is the solution to that?
Mr. Morton. Well, With recalcitrant countries; that is;
countries who delay but ultimately it is a constant push to try
to get them to take their people back. It is diplomatic
pressure.
Mr. Ross. What if we say we no longer allow visas from
those countries, period?
Mr. Morton. The law provides for that and that is the most
useful sanctions with countries with whom we have relations.
Cuba, however, is different story.
Mr. Ross. How many of those would you say that are out
there, of the total numbers that their countries won't take
them back?
Mr. Morton. There is about I would say 20 countries that
are slow to take their nationals back and about four or five
where it is close to impossible. Somalia, for example, a war
torn country, it is next to impossible to carry out a removal
to Somalia, extremely difficult. Cuba won't take them back.
Vietnam will not take people back.
Mr. Ross. And we continue to issue visas from those
countries?
Mr. Morton. In limited circumstances we do. We have
launched an initiative, however, with the State Department on
this exact point, to get to the point where certain countries,
if we can't get an improvement, we are going to recommend to
the State Department that visas cease to be issued.
Mr. Ross. Your memo with regard to the exercise of
prosecutorial discretion, is that as a result of a declining
amount of appropriation that your agency is receiving? What is
it a function of?
Mr. Morton. No, our appropriation is at an all-time high.
Both the President's request and the Congress' appropriation is
at an all-time high. So it is not a function----
Mr. Ross. You said it is the President's request to
exercise prosecutorial discretion.
Mr. Morton. No, the President's budget request was the
highest ever requested and Congress' appropriation was the
highest ever given.
Mr. Ross. But you have more cases than you have ever had.
Mr. Morton. That is right. But even with the appropriations
we have, there are, depending on whose estimate you believe,
there are between 10 and 11 million people here unlawfully. We
can remove about 400,000.
Mr. Ross. If we had a more secure border, if we had a more
secure border, it would limit the amount of cases logically
that you would be having?
Mr. Morton. It would and I would note the Border Patrol's
apprehension this year would be around 330,000 along the
Southwest border, which is the lowest number in a very long
time, and that is why in my opening remarks I highlighted the
partnership that we formed with the Border Patrol to improve
border security. So for the first time we are working hand in
hand with the Border Patrol to detain and remove a number of
people that they apprehend, to bring ICE's power to bear along
the border to improve border security.
Ms. Lofgren. Would the gentleman yield.
Mr. Ross. Yes.
Ms. Lofgren. I had a question on the assertion you made. In
the case where you have someone who cannot be deported because
the country of origin will not accept return and you have got
them on a probation scheme and they violate probation, can't
you arrest them for the probation?
Mr. Morton. We can bring people back into detention, but we
are going to come back, we are going to constantly face the
same set of requirements.
Ms. Lofgren. What would it take to initiate a criminal
prosecution in such cases?
Mr. Morton. We can initiate criminal prosecution where
people fail to comply. It is possible, and we do do that on
occasion. I should note that in a very limited--if you are a
schizophrenic murderer who is a danger no matter what, we will
go to the extraordinary length of detaining. Even under the
Supreme Court precedent we can do that. But what it means is
that ICE detains and we have people in our detention literally
for year after year after year and many of the----
Ms. Lofgren. I thank the gentleman for yielding.
Mr. Gallegly. The time of the gentleman has expired. Ms.
Waters.
Ms. Waters. Thank you very much, Mr. Chairman. There is so
much to learn about this system as it relates to undocumenteds
and how we handle them. As I understand it, there are nearly
300,000 cases that are currently in removal proceedings, is
that right?
Mr. Morton. The active docket at the Executive Office for
Immigration Review is over 300,000 cases.
Ms. Waters. And if you did not set priorities and determine
low priority, how long would it take you to take care of all
these 300,000 cases, to--I guess it would be to adjudicate
them.
Mr. Morton. To adjudicate them--the adjudication is done at
the Department of Justice but we are the prosecutors. For the
non-detained docket the backlog is such that you are looking at
many, many years before a non-detained case is heard and
adjudicated.
Ms. Waters. Five years, 6 years, 7 years, 8 years, 9 years?
Mr. Morton. If you factor in the appeals to the Federal
court which under the law can go all the way to the Supreme
Court, it can take many, many years.
Ms. Waters. Now help me to understand. Meanwhile the
taxpayers are paying the cost for retention of everybody in
these removal proceedings.
Mr. Morton. The taxpayers pay for all removal proceedings,
and for those detained they also pay for the cost of detention.
Ms. Waters. So in setting priorities what could happen to
low priority cases, how would they be disposed of?
Mr. Morton. Very low under--a few things, if they are on
the non-detained docket they just take many, many, many years
to be adjudicated. In the instance where we would exercise
prosecutorial discretion and not put them in the proceedings at
all and administratively close their case, they would be in a
legal limbo.
Ms. Waters. It would be what?
Mr. Morton. In a legal limbo. They would have no status.
They would simply be like many of the 11 million people who are
here unlawfully without permanent status, but not a priority
for immediate removal.
Ms. Waters. So how does--unless I missed something, how
does determining that one falls in the low priority category,
how does it help us to reduce the cost of the system and the
time in the system?
Mr. Morton. What it does is it allows us to focus more of
our limited resources on the high priority cases. We have more
cases than we can handle. That is the fundamental challenge
that we are facing. And when we prioritize our efforts on
criminals and border cases and people who are gaming the system
and don't put as many low priority cases into the process, it
is a zero sum game. We are able to remove more of the high
priority cases. It comes at the expense of the low priority
cases.
Ms. Waters. I don't know if this has been discussed
already. While we see that we have a problem with the numbers
and how we are able to have the kind of proceedings that would
do exactly what you want to do, dealing with the high priority
cases, has there been discussion about expansion of the court
to deal with these cases and what does it cost and who has
demonstrated a willingness to pay that cost?
Mr. Morton. This has been the subject of quite a bit of
discussion and you note a very important point, which is ICE is
but one part of the removal process. The Department of Justice
is a critical part of it. You obviously have to have
immigration judges to hear the cases, and there aren't
sufficient resources to hear all of the cases that are in
proceedings, which is why you have cases that go on for many,
many years before they are even adjudicated as an
administrative matter let alone go through the Federal court
system for a hearing. But I would--although that is under the
jurisdiction of this Committee, because the Department of
Justice is under the jurisdiction of this Committee, the
immigration judges and the adjudication function is not part of
ICE or the Department of Homeland Security.
Ms. Waters. So have you heard any discussion at all from
either side of the aisle about the expansion of resources to
deal with?
Mr. Morton. I cannot speak to the Department of Justice's
appropriation. I just don't know it well, so I don't want to
make a misstep there. I will tell you that we have been
discussing with the Department of Justice a reallocation of
their resources so that more of the Department of Justice judge
time is focused on the detained docket so that we can remove
more people who are detained, and those typically are the
people that are--I think we would all share a view--the high
priority cases; namely, criminal offenders and people who have
reentered the country illegally, border cases.
Ms. Waters. With the expansion of resources, for those
people who don't like the idea of setting priorities and
determining the higher priorities and all of that, expansion of
resources would be the alternative?
Mr. Morton. That is right. I mean if you are talking about
expansion to all 11 million people here in the United States
unlawfully, it is a considerable expansion of resources. ICE's
budget for enforcement and removal operations is about $2.5
billion for about 400,000, and that is not to count the other
resources at CBP, CIS or DOJ.
Mr. Gallegly. The time of the gentlelady has expired. Ms.
Lofgren for 30 seconds.
Ms. Waters. I yield.
Ms. Lofgren. I just wanted to briefly stand up for the
immigration judges because they have a crushing caseload, and
they--I know my former law partner in fact is--it is
unbelievable workloads. I don't want anybody to assume from
this discussion the immigration judges are dogging it. I mean
there just aren't enough. If you compare the number of cases
they are hearing with any other judge in any system you would
see they are incredibly overloaded. I just thought it was
important to note that.
Mr. Morton. I agree with that in full.
Mr. Gallegly. I will stick with regular order. I can't let
that statement go without at least making a comment on it. A
lot of this is self-inflicted with all due respect. I can give
you list of cases that have been continued 9, 10, 11 times
arbitrarily and that in and of itself is justice delayed and we
know what that means.
Ms. Waters. Would the gentleman yield for a moment?
Mr. Gallegly. This will be the last time we get out of
order. Yes, I would yield.
Ms. Waters. You made a very serious accusation, you just
said----
Mr. Gallegly. I didn't make an accusation. I made a
statement.
Ms. Waters. Okay, whatever, it was a statement, but your
statement said that judges without due consideration
arbitrarily make decisions to delay.
Mr. Gallegly. Yes, that is correct.
Ms. Waters. That is what you are saying.
Mr. Gallegly. That is correct.
Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Director Morton, when you all conduct work site enforcement
actions, and they are down 70 percent since the last
Administration you seldom detain or remove the illegal workers.
What is to keep them from walking down the street and getting
another job?
Mr. Morton. First of all, I don't completely agree with
your initial statement. You are right that the number of
administrative arrests is down considerably. The number of our
work site inspections----
Mr. Smith. I am going by administrative arrests because
that, if it doesn't occur, it allows individuals, as I just
said, to walk down the street and get jobs.
What is to prevent under your policies where you don't
really remove or detain very many illegal workers, what is to
keep them from walking down the street and getting another job?
Mr. Morton. They can obviously--as you note, they can
continue to try to find employment but what our response to
that is what is keeping them from doing that is we are going
after employers hammer and tong.
Mr. Smith. You are going after employers but not the
illegal workers. And as you just said they can get other
employment. My point is those jobs should be going to
unemployed Americans, not to illegal immigrants who happen to
walk down the street. I assume you agree with that.
Mr. Morton. I think where you and I--the difference is that
I am trying to figure out how best to allocate the 400,000 or
so removals I have, and I think it is better to focus on the
criminals.
Mr. Smith. That is not my question. I am simply pointing
out the result of your policy is that a lot of unemployed
Americans are not getting jobs that they otherwise might secure
because illegal immigrants are walking down the streets and
taking those jobs.
Next question, do deferred action--under your memos as I
understand it, thousands or perhaps hundred of thousands of
illegal immigrants might be eligible for deferred action. To
the extent that they are granted deferred action, aren't they
then eligible to get work authorization as well?
Mr. Morton. A few things, under the prosecutorial
discretion memo, particularly for the cases in court, it would
be a different form of prosecutorial discretion. That would be
in the form of administrative closure. But to your basic point,
my understanding is that present law under regulations does
allow someone to apply for work authorization?
Mr. Smith. Isn't it reasonable to assume that a lot of
those individuals will be granted work authorization.
Mr. Morton. I don't think so. I think it will be quite
narrow. But, as you know, ICE does not grant work
authorization. That power is with a different part of the
Department of Homeland----
Mr. Smith. Do you think it will be a very small percentage
who are granted work authorization of the individuals who
receive deferred action?
Mr. Morton. I think so. I think that is right.
Mr. Smith. Well, I hope you more than think, that you can
make sure that----
Mr. Morton. Again, we do not have that power. That is not
my responsibility. But, from what I understand, you can apply,
but it is on a case-by-case basis, and I don't think CIS----
Mr. Smith. I will take your word, and I hope you are right
about a very small percentage that will get work authorization.
Otherwise, they will be taking jobs that should go to
unemployed Americans.
My last question is this: When you have individuals who
have been detained in local jails, you all are called and asked
if you want to continue to detain them. Most of the time--or
many times--you do not seek a detainer, and these individuals
are released into our communities. Do you have an idea how many
people are released because of that decision?
Mr. Morton. First of all, I think in most instances, we try
to detain, and that is why we have removed so many people. Are
there instances in which, for whatever reason, we do not issue
a detainer or we don't follow through on a detainer? Of course,
we don't pick up every single person. Can I give you an exact
number here today? No, but I am happy to try to figure that out
for you.
Mr. Smith. If you could get that for me, that would be
good.
Another figure I would like for you to confirm for me, the
GAO says that approximately 25 percent of all Federal prisoners
are illegal immigrants. I assume that that figure is accurate.
If so, it is very disturbing because that is about five times
their proportion of the population. So if you will confirm the
second figure and then get me the estimated number of
individuals who are released back into our communities. I think
it is going to be in the hundreds of thousands and perhaps
more. But I will wait for your figure on that as well.
Mr. Morton. Might I offer--so just for the full context, I
do think we have pretty good estimates on how many people are
released from the prison system to the streets. That is
different than a notice to ICE and then released. In many
instances, we have no notice.
Mr. Smith. Do you know what that figure is?
Mr. Morton. I know that we have it. I think it is in the
order----
Mr. Smith. Do any of these people sitting behind you have
the answer to the question?
Mr. Morton. I don't think so. But we have a whole
presentation on this. We spent a lot of time trying to figure
it out because of our interest in secure communities, and I
think we can give you a full----
Mr. Smith. I look forward to that figure as well.*
---------------------------------------------------------------------------
*The Subcommittee received the following replies in response to
questions asked by Mr. Smith:

Response: As discussed with Committee staff, DHS is in the
process of responding to the Committee's November 4, 2011,
subpoena. To the extent possible, DHS will provide a
response to the Chairman's inquiries in its responses to
the subpoena.
and,
Response: Please see DHS's December 12, 2011, submission in
response to the Committee's November 4, 2011, subpoena.
Thank you, Mr. Chairman.
Mr. Gallegly. Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Director Morton, what input did the White House provide you
in drafting the so-called prosecutorial discretion memos?
Mr. Morton. My principal interaction was with the
Department of Homeland Security, so I did not have a regular
interaction with the White House on this.
Mr. Gowdy. Did you have an irregular interaction?
Mr. Morton. No. As I noted earlier, there was involvement
by the White House in this. This is Administration policy. And,
as such, obviously, there was coordination between the
departments.
Mr. Gowdy. So the memos would have been approved by the
White House before you----
Mr. Morton. The White House reviewed the memos.
Mr. Gowdy. Who else did you talk to?
Mr. Morton. The usual--folks at the Department of Homeland
Security, the Secretary, and her senior staff.
Mr. Gowdy. Any outside groups?
Mr. Morton. Me, personally, no.
Mr. Gowdy. Do you have any knowledge of anyone----
Mr. Morton. I don't. This was Administration policy. This
was developed by ICE, Department of----
Mr. Gowdy. Who developed it?
Mr. Morton. I did with the Secretary and the White House.
Mr. Gowdy. Well, now I am confused. So it was you, the
White House, and the Secretary that developed this policy and
drafted the memo. Who at the White House helped you draft the
memo?
Mr. Morton. No. We drafted the memo. And, as I indicated,
this is Administration policy. There was involvement by the
Department of Homeland Security and the White House.
Mr. Gowdy. Were any outside groups, any immigrant right
groups consulted?
Mr. Morton. Not to my knowledge.
Mr. Gowdy. Did you consult special agents within ICE before
you issued----
Mr. Morton. This particular policy is largely focused on
the enforcement and removal operations. But the answer to that
question on individual special agents, no. Obviously, the
leadership of the Homeland Security Investigations, yes.
Mr. Gowdy. Why didn't you pursue a legislative remedy?
Mr. Morton. I am not sure what you mean by that.
Mr. Gowdy. Did you talk to any Members of Congress and ask
them to change the law to help you order your priorities?
Mr. Morton. Well, Congress already gives us a fair amount
in the way of instruction in our appropriation, as you may----
Mr. Gowdy. That is kind of my point. They did. And then it
was ignored.
Mr. Morton. No. Congress, in fact, told us very clearly
that we were to focus first and foremost on the identification
and removal of criminal offenders and gave us a direction on--
--
Mr. Gowdy. Do you think that was to the exclusion of
everyone else?
Mr. Morton. But that is not what we are doing. We remove--
about half of the people we remove are criminals, and that is
about what Congress told us to do. And the other half are
noncriminals.
Mr. Gowdy. Do you think the head of the Drug Enforcement
Administration has the legal authority to decriminalize certain
categories of drugs?
Mr. Morton. I don't believe that the head of the Drug
Enforcement Administration has the power to change a Federal
law.
Mr. Gowdy. Does she have the authority to just not pursue
certain categories of drugs?
Mr. Morton. Whole classes and categories, no. Does Michele
Leonhart have the authority to emphasize certain kinds of drug
prosecutions over others? Absolutely. Does she have individual
discretion? Absolutely.
Mr. Gowdy. I am talking about just blanket immunity for
certain categories of offenders.
Mr. Morton. I don't believe the DEA would ever assert that
authority, and we certainly don't.
Mr. Gowdy. Do you think the Bureau of Prisons has the
authority to release certain inmates that are near the end of
their time or even if they are not near the end of their time
because they have budget constraints?
Mr. Morton. I wouldn't say for budget restraints. From my
past life as a prosecutor, in fact, they do have authority with
regard to people who are very elderly, but that is pursuant to
Federal law.
Mr. Gowdy. Right. You also have a memo about victims,
witnesses, and plaintiffs. And if I understand that memo
correctly, if you are a plaintiff in certain categories of
civil litigation, you can escape prosecution and removal, is
that correct?
Mr. Morton. Not escape, no. It is simply on whether or not
we would put you into proceedings during the pendency of your
litigation. It is not a pass on deportation.
Mr. Gowdy. What if you were a defendant in a civil case?
Mr. Morton. It is primarily focused on litigants pursuing
legitimate civil rights complaints.
Mr. Gowdy. What if an American citizen has a legitimate
complaint against someone who is a defendant in a civil case?
Mr. Morton. And we were seeking to remove that person and
their presence was necessary?
Mr. Gowdy. Yes. Is that covered by your memo?
Mr. Morton. The memo doesn't specifically address that,
although our practice--we will work with people to maintain
someone in the country----
Mr. Gowdy. So your memo specifically addresses plaintiffs.
Mr. Morton. It does.
Mr. Gowdy. And you say there might be an exception for
civil defendants.
Mr. Morton. I am not sure what you are getting at.
Mr. Gowdy. Well, what I am getting at is if one illegal
immigrant sues another, can you avoid removal? Because then you
have both a plaintiff and a----
Mr. Morton. Under neither circumstance can you avoid
removal. There is nothing in the memorandum that is about
avoiding removal. It simply says, don't put someone who is the
immediate victim of a crime, a necessary witness to a crime--
Mr. Gowdy. Or a plaintiff.
Mr. Morton [continuing]. Or someone who is a plaintiff in a
legitimate civil rights suit.
Mr. Gowdy. It is not just a civil rights suit. Is it not
also landlords?
Mr. Morton. What is that?
Mr. Gowdy. Is it just civil rights suits? It is not
landlord-tenant disputes?
Mr. Morton. No. It could be a landlord-tenant----
Mr. Gowdy. Right. So it is not just civil rights. It is
other forms of civil litigation as well.
Mr. Morton. That have to deal with vindicating personal
rights that are recognized either by Federal or State law, that
is right.
Mr. Gowdy. What about a medical malpractice case? Would
that be covered also?
Mr. Morton. No.
Mr. Gowdy. Why not?
Mr. Morton. Because that is not what we are trying to
cover.
Mr. Gowdy. What is the difference between landlord-tenant
cases and personal injury cases?
Mr. Morton. This was largely focused on trying to allow
people to vindicate important civil rights.
Mr. Gowdy. Well, let me say this in conclusion, Mr.
Chairman. Mr. Morton, I have great respect for what you do. I
have great respect for your former job. The thing that
disappoints me the most is, whether it is real or perceived, it
is the politicization of the criminal justice system. That is
what frustrates me. I hope that is not what is happening here.
Mr. Gallegly. The time of the gentleman has expired.
Mr. King.
Mr. King. Thank you, Mr. Chairman; and, Director, I
appreciate your testimony here.
Just to pick up a little bit, one of my curiosities that
has emerged as I listen to your testimony and you talked about
how the idea of prosecutorial discretion was developed by you,
by the White House, and also by the Secretary. And so I would
see that then as a new name at the White House, Cecilia Munoz.
And also then I am going to say you, Cecilia Munoz, and Janet
Napolitano would be the three principals I have in mind when I
hear that testimony.
What was the genesis of the idea? Did one of the three of
you present this? Or where did it come from originally?
Mr. Morton. Well, first of all, it is important to remember
the agency has issued prosecutorial discretion memoranda for as
long as it has been around, including its predecessor agency.
So the idea that this is something that we cooked up, is brand
new, wouldn't be fair.
Mr. King. Let me just suggest then--and I will pull this
out of my memory. It seems about a year ago I remember reading
news articles about the subject of this discretion, but it was
addressed as the Department of Homeland Security looking to
find a way to grant this as a blanket discretion rather than an
individual discretion that you have spoken to today. Do you
recall that dialogue being in the media roughly a year ago?
Mr. Morton. I do. It wasn't about ICE in particular. But,
yes, I do.
Mr. King. Then so taking you back to that period of time, I
would say that might be something new to talk about, a blanket
prosecutorial discretion proposal. But where did the genesis of
that idea come from?
Mr. Morton. Well, I don't think that there was ever
discussions at the Department of Homeland Security at the
secretarial level for blanket amnesty or----
Mr. King. Nor from the White House, Cecilia Munoz?
Mr. Morton. Or from the White House that I am aware of. In
fact, my understanding and my direct knowledge is that the
Secretary is opposed to it. I am opposed to it, that we don't
support administrative amnesty.
Mr. King. There was a personality that was a driving force
behind this concept. Is that yours? Or is it--you are a driving
force and then Cecilia Munoz came into this in that fashion? Or
was it then initiated out of the White House and reflected back
to you?
Mr. Morton. No. I felt that we needed to clarify our
prosecutorial discretion memoranda to support the earlier
memorandum that I issued on our civil enforcement priorities.
But this is Administration policy; and, obviously, as such,
this was important to the Secretary and the Department and to
the White House. And as the Secretary's letter----
Mr. King [continuing]. Recognizes Administration policy,
why?
Mr. Morton. The Secretary's letter to the various Senators
on this subject makes it clear that this Administration's
policy is about coming up with a set of rational enforcement
priorities when it comes to immigration enforcement. And that
is what this is all about.
Mr. King. Let me go in a little bit different way. And that
is there was some discussion, questions from the other side
about the resources needed to bring about enforcement. And your
response was back to, if we were going to deport 11 or so
million people, the resources that it would take.
But if we were just going to apply the resources at the
border so that every interdiction that we come across could
actually be prosecuted, have you looked at the resources
necessary to have the judges, the prosecutors, and the prison
beds in order to follow through with an ability to do 100
percent enforcement on the southern border?
Mr. Morton. I have not, largely because the immediate
responsibility for border control is with my sister agency,
Customs and Border Protection. We support them with detention
and administrative removal powers, but the basic responsibility
is with CBP, not with ICE.
Mr. King. Yes. And, as you said, you support and you are in
that area and they do look to you as a--let me just say your
connection that has to do with the national policy standpoint.
Have you come before Congress? Have you or are you aware of
the Border Patrol asking for those resources to provide 100
percent enforcement on the border? I would think you would have
to collaborate to come up with that number.
Mr. Morton. I have not testified or come before Congress on
CBP's appropriation. As I note in my earlier testimony, the
President's request for ICE's budget is the highest it has ever
been, and Congress has appropriated that money.
Mr. King. If we had the ability to actually leverage full
enforcement at the border, then it would be actually a
deterrent effect.
Mr. Morton. Absolutely.
Mr. King. And we hear some testimony that goes all over the
map, but we know we are not interdicting half of those that
come across.
Another question: Illegal drugs that are interdicted at the
border, are they up or down over the last 2, 3, 4 years?
Mr. Morton. I believe the seizures that CBP is making are
up.
Mr. King. And deaths in the Arizona desert?
Mr. Morton. I can't speak to that. That is really a CBP
issue. I do know that CBP's apprehensions along the border are
at record lows.
Mr. King. So I would just suggest this question is in my
mind, and that is that there are two ways to interpret the
interdictions of CBP on the border. One of them is that there
are fewer people crossing the border, and the other one is that
they are stopping fewer people that are crossing the border in
similar numbers. And I would ask you if you would pay close
attention to the volume of the drugs that are being interdicted
at the border as a better indicator of how much illegal border
crossing is going on and looking at the deaths in the Arizona
desert as another measure on that, those things are not--they
aren't affected directly by whether or not there is a real
focus on the interdiction at the border. I mean, the drugs are.
The drugs are. And they are doing I think a lot of work to
enforce the illegal drugs that are transported across the
border. But I would suggest that that is a reliable indicator,
and the deaths in the Arizona desert are a reliable indicator,
and the interdictions of individuals just for border crossing
may not be.
Thank you, Mr. Director.
Mr. Gallegly. The gentleman's time has expired.
Mr. Morton, thank you for your testimony today and thank
you for coming in. I am sure we will be working together. At
least as it relates to the issues you are dealing with, you
have job security.
At this time, we will call up the second panel.
Mr. Morton. Thank you, Mr. Chairman.
Mr. Gallegly. Our witnesses on panel two:
First, Mr. Chris Crane currently serves as the President of
the National Immigration and Customs Enforcement Council, 118
American Federation of Government Employees. He has worked as
an immigration enforcement agent for the U.S. Immigration and
Customs Enforcement, known as ICE, at the Department of
Homeland Security since the year 2003. In his capacity as an
immigration enforcement officer, he has worked in the criminal
alien program for approximately 5 years and has also served as
a member of the ICE Fugitive Operations Team. Prior to his
service at ICE, Mr. Crane served for 11 years in the United
States Marine Corps.
Our second witness is Mr. David Rivkin. He is a partner at
Baker & Hostetler here in Washington, D.C. Mr. Rivkin has a
lengthy career, distinguished service under Presidents Ronald
Reagan and George Herbert Walker Bush in the U.S. Department of
Justice and the U.S. Department of Energy. He is a member of
the Council on Foreign Relations. Prior to embarking on a legal
career, Mr. Rivkin worked as a defense and foreign policy
analyst. Mr. Rivkin earned his BSFS and M.A. at Georgetown
University and his J.D. from Columbia.
Our third witness is Mr. Ray Tranchant. Mr. Tranchant is
currently a Director at the Advanced Technology Center for
Tidewater Community College located in Virginia Beach. His
advocacy to reform or enforce immigration laws has achieved
national attention. Mr. Tranchant graduated from the United
States Naval Academy and flew the F-4J and F-14A aircraft
during multiple operations, including the Iranian hostage
crisis and the war in Lebanon. After retirement, Mr. Tranchant
became an educator in the public schools of Virginia and an
adjunct professor at Cambridge College. Mr. Tranchant received
his B.S. and master's degree from Old Dominion University.
And our fourth witness today, Mr. Paul Virtue, is partner
at Baker & McKenzie here in Washington. Prior to his law firm,
he served as executive associate commissioner and general
counsel of the U.S. Immigration and Naturalization Service. He
also participated in drafting the immigration provisions of the
North American Free Trade Agreement. Mr. Virtue earned his B.S.
from West Virginia University and his J.D. from West Virginia
University College of Law.
Welcome, gentlemen.
We have a situation here where we are likely to be called
for votes in about a half hour, 35 minutes. So we will be
particularly careful to try to stay within our time limits, and
I appreciate all of you being here.
Mr. Crane.

TESTIMONY OF CHRIS CRANE, PRESIDENT,
NATIONAL ICE COUNCIL

Mr. Crane. Good afternoon, Chairman Gallegly, Members of
the Committee.
While many of ICE's policies and practices concerning--I
have chosen to devote my time today discussing the best
practices----
Mr. Gallegly. Mr. Crane, is your microphone on?
Mr. Crane. Thank you. Sorry about that.
When I last testified before the Subcommittee on July 25,
2011, I reported, among other things, that ICE enforcement
removal officers and agents in the field alleged that unwritten
directives from ICE headquarters had been issued nationwide
ordering officers not to arrest aliens unless it was confirmed
that the alien had received a prior conviction for a criminal
offense. Aliens who cannot be arrested included but were not
limited to ICE fugitives who had been ordered deported by a
Federal immigration judge as well as aliens who had illegally
reentered the United States after deportation, a Federal
felony.
ICE officers and agents also allege that they were not
permitted to arrest or even speak to confirmed or suspected
illegal aliens encountered in the field during operations and
were prohibited from running standard criminal records checks
for wants and warrants.
First, I would like to thank Chairman Smith and his staff
for working with the union regarding this matter after the July
25th hearing. Chairman Smith provided us with the opportunity
to bring officers forward as witnesses. We were also able to
turn over several internal ICE documents which appear to not
only verify that these activities did in fact take place but
also named several senior level ICE managers allegedly involved
in issuing the directives nationwide.
Second, I would like to address the impact and
effectiveness of these types of orders. I have never heard of
any law enforcement agency in the Nation that prohibits its
officers from even speaking to or interviewing individuals who
are inside a house in which the officers are attempting to
effect an arrest. From a law enforcement standpoint, what could
be the possible benefit? The only purpose of an order such as
this is to prevent officers from making arrests, which ICE
leadership has allegedly stated is its goal.
However, these directives not only prevent the arrest of
noncriminal aliens but also prevent the identification and
arrest of very dangerous criminals, potentially individuals
involved in terrorist activities. It not only prevents officers
from talking to and arresting persons who may be wanted for
crimes but also individuals who are being victimized and in
need of assistance.
Certainly anyone can see that these practices are contrary
to effective law enforcement practice and place the public at
risk. Many officers will tell you that the majority of their
best arrests, the arrests that most benefit public safety, come
from unintended encounters with criminal aliens in the course
of looking for a different target in the field.
Of course, these practices also place our officers at risk.
Nothing that I could ever say here today can capture the
dynamics as they unfold when a door opens and our officers
enter a house that they have never been in before. It is
dangerous. Officers don't know who is in the house or what they
are capable of doing.
Problems often arise that require officers to remain in a
house for extended periods. Officers on the scene must have the
ability to provide for their own safety. They should never be
prohibited from talking to people at the scene, conducting
interviews as needed, running appropriate background checks, or
even making additional arrests.
In terms of better utilizing limited resources, these types
of practices clearly do not achieve that goal. As discussed
earlier, arrest numbers for serious offenders will fall well
below the potential as ICE prohibitions on speaking to aliens
or running criminal records checks in the field will prevent
the identification and arrests of many of the serious
offenders. Ordering officers to walk away from and not arrest
ICE fugitives and prior deports who have been located in the
field is obviously a blatant waste of officer resources and
undermines ICE's mission to enforce warrants of deportation and
the Nation's immigration laws.
In conclusion, the inability of ICE officers and agents to
perform their duties reaches far beyond the officer allegations
that I have cited today. During the last 3 years, ICE officers
and agents describe what many call a roller coaster of arrest
authority that has changed from month to month, week to week,
and, at times, from day to day. Officers, agents, and field
managers express concern that effective law enforcement and
public safety have taken a back seat to attempts to satisfy
immigrants' advocacy groups.
We commend this Committee's efforts to bring oversight to
the activities of this troubled agency and unconditionally
commit our resources to this or any future inquiries made by
this honorable body. Thank you for allowing me to speak on
behalf of ICE employees.
This concludes my testimony, and I will answer any
questions.
[The prepared statement of Mr. Crane follows:]

__________

Mr. Gallegly. Mr. Rivkin.

TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER,
BAKER & HOSTETLER, LLP, WASHINGTON, DC

Mr. Rivkin. Mr. Chairman, Members of the Committee, it is a
pleasure to appear before you.
I think we can all agree that no President, no
Administration can hope to expel every undocumented alien
present in the United States now, which is perhaps upwards of
11 million individuals. Human and financial resources to
identify, apprehend, process, and probably deport millions of
illegal aliens have been lacking for years; and, to some
extent, so has also been the case of political will to do so.
Now, in this environment, immigration enforcement, entities in
both Democrat and Republican administrations performed as well
as they could, given the available resources. Still, I think
records show that millions of illegal aliens have been deported
over the years. While many of them were persons convicted of
serious nonimmigration-related criminal offenses, most
deportees were not in that category.
The Administration's new policy unveiled in various ways,
in addition to the memos that were discussed earlier, a number
of letters from Secretary Napolitano to different Members of
Congress, in my view is fundamentally different from this
imperfect enforcement record of previous Administrations. This
Administration has basically stated that, henceforth,
deportation efforts would be focused solely on aliens with
nonimmigration-related criminal records and no enforcement
resources will be expended on other types of cases. That means,
of course, that undocumented individuals who have avoided
apprehension at the border and have not been convicted of
serious nonimmigration offenses arriving into the United States
will no longer face the prospect of deportation.
Far from merely prioritizing the use of limited resources,
the Administration's policy effectively rewrites the law. It
means that the vast majority of undocumented aliens no longer
need to fear immigration law enforcement. It applies even to
illegal aliens who are now in deportation proceedings.
Not to use defense of a term, but the President has, in
effect, suspended operation of those laws with regard to a very
large identifiable class of offenders. And my primary concern
is not even the policy impact of that. But it clearly exceeds
his constitutional authority and sets an extremely unfortunate
record.
Now we have heard a lot about enforcement priorities; and,
of course, we all recognize that Federal agencies do establish
enforcement priorities because of a lack of resources. And
particularly the case with law enforcement agencies, they do
exercise prosecutorial discretion and the President can
properly inform the exercise of such discretion. But that
authority is not boundless.
While the President, for example, can legitimately decide
in a post-9/11 environment most of the FBI's limited resources
should be dedicated to the investigation and prosecution of
terrorism cases, he cannot very well decree that no enforcement
resources whatsoever, for example, be allocated to securities
fraud or counterfeiting. The reason for it is very simple.
Because the executive branch has exclusive license to enforce
Federal criminal laws on our constitutional system, the
President to say so would effectively decriminalize securities
fraud and counterfeiting, derogating from the Federal statutes.
And of course that is fundamentally violative of the
constitutional requirements the President has to take care of,
that the laws be faithfully executed.
And, by the way, the Framers did not include that
imperative language by accident. Exactly 100 years before the
Constitution came into effect in 1788, King James II of Britain
was deposed in large part because he claimed the legal right to
suspend generally, or dispense with in individual cases, laws
enacted by Parliament. The Framers knew this history very well
and gave the President no discretion but to execute laws passed
by Congress.
And as the Supreme Court has stated in a case called
Kendall v. United States in 1838--quite a long time ago--the
power to dispense with laws enacted by Congress has no
countenance for its support in any part of the Constitution.
So, in my view, the Administration has effectively
announced its intent to suspend and dispense with the
immigration law. That suspension is every bit as broad as any
attempted by the British monarchy and is equally illegal. The
President is entitled to establish enforcement priorities, but
his ultimate goal must be the implementation of a law enacted
by Congress. If a President disagrees with this law, his sole
recourse is to convince Congress to change it.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Rivkin follows:]

__________

Mr. Gallegly. Thank you very much, Mr. Rivkin.
Mr. Tranchant.

TESTIMONY OF RAY TRANCHANT, DIRECTOR, ADVANCED TECHNOLOGY
CENTER, TIDEWATER COMMUNITY COLLEGE

Mr. Tranchant. Thank you.
As I can tell, the current position on illegal immigration
by the Obama administration--and I am gleaning this from press
releases and all that I can read about it--is that there are
three things. He is for amnesty with a secured border to slow
down the flow; promotion of the DREAM Act that somehow
translates to a 14th Amendment right for children; and amnesty
with a path to citizenship that is undefined at this time. This
all sounds like a plan with no details or like a wish list
until another election.
The American leadership must either continue to enforce the
laws that the current executive branch selectively ignores or
encourage a movement to change them. After all, laws are
nothing. Enforcement is everything.
Amnesty diminishes the allegiance of the immigrants who
follow the legal process. It questions our approach to national
security, increases crime, promotes tax evasion, and has public
health challenges, of course. Currently, there are millions of
people with no fingerprints on record, no IDs, birth records,
health records, visas, passports. This causes confusion and
worry during a great recession.
During the Great Depression in 1932, more people left the
country than immigrated. Hopefully, history doesn't repeat
itself again.
It hurt the U.S. when my hero, Ronald Reagan, favored
amnesty for illegal immigrants during the Cuban boat crisis in
1986. But let me finish. It caused all the havoc that Castro
intended in a much smaller scale than today. Fidel cleaned out
the jails and allowed Cubans to board boats, encouraged them to
leave in a risky attempt to gain a better life 90 miles away.
After all, times were tough in Cuba back then. There were a
million immigrants that we took in in 1986, a number far less
than the estimated 14 million--I disagree with the other
figures--14 million today that seek amnesty.
Once we waved that magic wand, they were not required to
speak English. They did not have to have knowledge of our
government. Reagan's rationale then was covered under the 1980
Refugee Act. They were boat people. They were ``refugees.'' He
couldn't just let them die. I agree. If they were sent back to
Cuba, who knows what would have happened.
So in the past few years, former President Fox of Mexico
promoted a similar move. He encouraged the northern part of
Mexico to ``seek their fortune'' by crossing the border. Today,
President Calderon is more cooperative with the United States--
we know that from hearings--to stop the flow, but narco
terrorism is his biggest challenge and ours as well. Last year,
3,000 Mexicans were murdered no more than 300 feet from the
U.S. border. It gravely affects the United States as well, not
to mention the Border Patrol agent who was shot and killed
during the last Christmas holiday.
These agents risk their lives daily protecting a broken
system. I watch TV, just like you. I watch shows like Border
Wars on Nat Geo and other reality shows, and I am shocked at
how undermanned these people are.
Can the United States Government do a better job securing
the border? Listen, sure it can. For example, take Area 51 in
Nevada. It is a secure governmental site the size of a small
state. I have seen it, and it is impenetrable. Unwelcome
visitors there will be stopped and arrested in the name of
national security.
My parents were immigrants. They had to speak English for
safety reasons in the factories and coal mines. They had to
pass a citizenship test, stay out of trouble, have a public
health record, birth record to verify their age and lineage,
pay taxes on all their earnings, and had total buy-in on the
American Dream.
People who break in and come illegally don't possess the
same buy-in. I just don't believe it.
Immigration and Customs Enforcement continues to prioritize
enforcement of the laws by the hottest crisis of the moment.
They are getting support deporting more criminals, sure, but
are still unable to keep on top of these numbers.
My late daughter Tessa and her friend Allison Kunhardt were
killed in Virginia Beach by a repeat DUI offender, an illegal
with a fake driver's license from Florida. He was handed off
many times and was not a priority call to ICE for deportation.
Tessa has a grandmother as well. Her name is Anita Carson from
Chihuahua, Mexico. Tessa's ``Noni'' was an immigrant who worked
on B-17s during World War II in San Diego. And I will tell you
this. She is appalled that migrants would get the same rights
to citizenship by sneaking across the border. She is Hispanic.
The Hispanics I know generally are concerned about their
America as well and worry that the current Administration
focuses on potential Hispanic boats and not about American
Hispanic safety and prosperity.
Once again, these and many more victims of crimes committed
by illegals were lost in the justice system, sometimes
invisible or awaiting under a deportation order. There are
many, many more stories like this. In sanctuary cities, ICE
doesn't even get a call, which is another problem driven by
politics. So how long will it be until America finds a fair
solution to this?
Just one mention, finally, Sunday, on November 6th, there
will be a national day of remembrance for victims of illegal
immigrants in cities all over America. The gatherings will pay
homage to those who have lost their lives to the hands of
illegal foreigners to show in silence in candlelight vigils
that they will never be forgotten.
I want to quote one thing before I close. In 1965, the
United States Congress enacted a law that stopped putting a
ceiling on immigration. 1965. It was in conjunction at the same
time with the civil rights movement. After all, why would we
put a limit on bringing people into our country? That was the
whole idea of the law.
And here is what Senator Kennedy said, God rest his soul:
The bill will not flood our cities with immigrants. It will not
upset the ethnic mix of our society. It will not relax the
standards of admission. It will not cause American workers to
lose their jobs.
Well, I am sorry. He was wrong. So we are in a little bit
of a pickle here, aren't we? We can't send them back. It costs
too much to keep them. It costs $100 a day. Of course, a plane
ticket would cost $200, wouldn't it? Back home.
Thank you, and I will answer any questions that you have.
[The prepared statement of Mr. Tranchant follows:]

__________

Mr. Gallegly. Thank you Mr. Tranchant.
Mr. Virtue.

TESTIMONY OF PAUL VIRTUE, PARTNER,
BAKER & McKENZIE, LLP

Mr. Virtue. Thank you, Mr. Chairman, Ranking Member
Lofgren, Members of the Subcommittee. Thank you for the
opportunity to appear before you today to share my perspective
on the important role prosecutorial discretion plays in the
enforcement of our Nation's immigration laws. The views I
express today and in my written testimony are my own. I am not
speaking on behalf of my law firm or any of its clients.
Having witnessed immigration enforcement firsthand from the
Reagan administration to the Obama administration, I have to
say that the emphasis on removal of noncitizens and the
dedication of the officers responsible for immigration
enforcement have never been higher. But even with the
impressive statistics recited by Director Morton here today,
immigration enforcement resources are not limitless. To get the
most of those resources in terms of protecting the border,
promoting national security, and ensuring public safety, the
executive branch has to establish enforcement priorities. Every
Administration has done so.
The process of establishing enforcement priorities
necessarily involves identifying characteristics that makes
some cases a higher priority than others. There are trade-offs.
For example, the decision by INS during the 1990's to focus on
the removal of aliens who have been convicted of crimes
resulted in a lower priority and fewer resources being applied
to work site enforcement operations.
Even at the seemingly high rate of 400,000 removals per
year that we heard today, judgments have to be made on a case-
by-case basis and under reasonable guidelines to ensure that
the goals of homeland security border protection and public
safety are met. The uniform application of those guidelines law
through enforcement decisions is, in my view, as important to
good government as the authority to arrest, detain, charge, and
remove noncitizens.
The authority of law enforcement agencies to exercise
discretion in deciding what cases to investigate and prosecute
under existing civil and criminal law is fundamental to the
American legal system. Every prosecutor and police officer in
the Nation makes daily decisions about how to allocate
enforcement resources based on judgments about which cases are
the most egregious, which cases have the strongest evidence,
which cases should be settled, and which cases should be
brought forward to trial, for example. Border Patrol agents,
immigration officers, and DHS attorneys must do the same every
day.
The Supreme Court has made it clear that an agency's
decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to the
agency's absolute discretion.
In Heckler v. Chaney, the Supreme Court said: An agency
generally cannot act against each technical violation of the
statute it is charged with enforcing. The agency is far better
equipped than the courts to deal with the many variables
involved in the proper ordering of its priorities. Finally, we
recognize that an agency's refusal to institute proceedings
shares to some extent the characteristics of the decision of a
prosecutor in the executive branch not to indict, a decision
which has long been regarded as the special province of the
executive branch, inasmuch as it is the executive who is
charged by the Constitution to take care that the laws be
faithfully executed.
On June 17 this year, John Morton, Director of Immigration
and Customs Enforcement, issued two memoranda to agency
personnel clarifying the role of prosecutorial discretion and
immigration agency enforcement actions. Neither document
represents in any respect a change to existing law or a
departure from permissible policy but instead they clarify
responsibilities inherent in the exercise of prosecutorial
discretion.
The first memorandum, entitled Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and
Removal of Aliens, builds upon and cites prior prosecutorial
discretion guidance reaching back to 1976 and outlines the
nature of prosecutorial discretion, the personnel in power to
exercise that discretion, and both positive and negative
factors to consider in deciding whether to proceed with
immigration enforcement action.
The second memorandum, which is essentially a reminder that
the prosecution of certain victims, witnesses, and plaintiffs
is against ICE policy.
On August 18, 2011, in a letter to Senator Dick Durbin and
21 other Senators, DHS Secretary Janet Napolitano announced a
new process for implementation of the June 17, 2011,
prosecutorial discretion memoranda. The letter included a
background two-pager that summarized DHS efforts to date of
establishing enforcement priorities and described the role of a
new interagency working group tasked with reviewing individual
cases in removal proceedings.
None of these memoranda established categorical decision to
refrain from enforcement, and each of them cites the need to
make these decisions on a case-by-case basis.
Thank you again for this opportunity. I welcome your
questions.
[The prepared statement of Mr. Virtue follows:]

__________
Mr. Gallegly. Thank you, Mr. Virtue.
Mr. Crane, in testimony that you made back on June 25 of
this year, ICE union leaders issued a vote of no confidence in
ICE Director John Morton. You state now that the ICE union
remains more committed than ever in no confidence. Can you
explain that in brief detail?
Mr. Crane. Yes, sir. I think there are a lot of issues that
don't necessarily pertain to this hearing, but I think there
are probably things that maybe the Members should know.
ICE is 208th in employee job satisfaction and morale. It is
a horrific place to work. Retaliation is rampant. The treatment
of U.S. citizens that work for that agency in terms of my
experience is worse than what illegal aliens have ever alleged.
I mean, literally, you know, acting like bullies to females,
pregnant mothers, putting children in hospitals, you know,
pregnant mothers. It is an ugly place to work.
And Director Morton has done zero to make that change, to
turn that around. It is just an awful place to work.
Now in terms of measures such as this, there is definitely
a feeling in the field amongst our officers and agents that he
does not have our back, that his intentions are not to create
an agency with the intention of having stronger law enforcement
but, instead, catering to special interest groups.
And if you look at practically every single significant
enforcement policy ICE has put out in the last 3 years, the
union has been excluded from every single policy. That means
our officers and our agents and our employees, they are
excluded from everything. Performance-based detention standards
alone, the agencies worked on for 3 years, but they have
refused to bring the union in to bring our expertise to the
table; and the end result has been, 3 years later, we don't
have a performance-based detention standard. And the one that
we do have is more dangerous perhaps than anything that we have
had in the past. It places the lives of detainees at more risk
as well as officers at more risk than our previous standards
did. So we have a lot of reasons why we still stand behind that
vote of no confidence.
Mr. Gallegly. Thank you, Mr. Crane.
Mr. Rivkin, the 3- and 10-year bars--something I am very
well aware of from 1995--to the admissions of aliens who had
formerly been in the U.S. illegally were designed to combat
visa overstays and provide a real sanction for the violation of
our immigration laws. The Administration is now trying to get
around the 3- and 10-year bars that were signed into law by
President Clinton by simply paroling in place illegal
immigrants with Green Card applications so they never have to
leave the U.S. Do you consider this a blatant attempt by the
Administration to disregard an act of Congress?
Mr. Rivkin.That is correct, Mr. Chairman. And, again,
particularly undertaken in the broader context.
And it is interesting--we had a lot of discussions again
earlier about prosecutorial discretion. What troubles me the
most on not just the memos but clear statements by the
Administration that amount to a proposition that lower-priority
cases--I am mostly citing the letter by Secretary Napolitano--
no resources would be spent on lower-priority cases.
And, again, it is easy to fix this problem. All the
Administration would have to do is to step forward and say, no,
it is not true. That could be done by the President. It could
be done by Secretary Napolitano. We are going to spend most of
our enforcement priorities on these high-priority cases, but
enough would be spent on other categories. That is a legitimate
prosecutorial discretion.
Saying we will spend no resources--going back to my analogy
about decriminalizing counterfeiting and securities frauds--
saying we are going to spend no resources on lower-priority
cases is not any kind of prosecutorial discretion I can
recognize. It is a suspending power and is profoundly
unconstitutional and very troubling.
Mr. Gallegly. Thank you very much, Mr. Rivkin.
Mr. Virtue, if you were at ICE, would you have approved the
Morton memo? And why didn't the Clinton administration issue
such memos, opening up administrative amnesty to millions of
illegal immigrants?
Mr. Virtue. Mr. Chairman, I don't necessarily agree with
the premise that this is opening up amnesty for millions of
illegal immigrants. There was a memorandum establishing
parameters for prosecutorial discretion that was issued during
the Clinton administration. It was issued by Commissioner
Meissner in 2000, in fact, in response to a letter from Members
of Congress, asking that such parameters be developed in order
for discretion to be exercised in appropriate cases.
Mr. Gallegly. Well, I see my red light is on, and I am
going to respect it. But I have to respectfully question the
definition of amnesty, with all due respect.
Ms. Lofgren.
Ms. Lofgren. Yes. Thank you.
I think I will take up where Mr. Gallegly left off.
Mr. Virtue, you were--and it is good to see you again. I
remember when you were with the Department and Ms. Meissner was
the Commissioner and we had a lot of back and forth at the
time, not always a positive one on the part of the Committee.
But you have heard the testimony, that the suggestion is
that no enforcement resources will be expended on these cases
and, therefore, this is very different than past efforts that
didn't cause any problem. Is that your reading of Mr. Morton's
memo?
Mr. Virtue. No, it is really not. I just respectfully
disagree with that representation about the three memos,
actually. But I just have to question why the Morton memo would
include some 20 different factors for consideration if the
decision had been made by the Administration simply to focus
all resources on the removal of criminal aliens and none on any
other removal actions. That could have been a one-page, a half-
page memorandum.
Ms. Lofgren. In your written testimony, you talk about the
1996 immigration law that expanded the grounds of removal and
substantially eliminated the ability of immigration judges to
grant a relief from removal on a case-by-case basis. Do you
think it is fair to say that the elimination of the judicial
authority to grant relief was responsible for the kinds of
cases of so-called unjustifiable hardship that was referenced
in the letter, the bipartisan letter that Congressman Smith
signed when you were general counsel?
Mr. Virtue. Yes. I have no doubt about that, that it was,
in fact--the restrictions were a product of the 1996 act that
created exactly some of those compelling cases that we were
being asked to address.
Ms. Lofgren. So it would be correct then--or you will tell
me if this is incorrect--that the letter that Mr. Smith signed
and Mr. Sensenbrenner signed asking the Administration when you
were general counsel to issue prosecutorial discretion guidance
was actually asking the Administration to use its inherent
authority to alleviate unacceptable hardship that resulted from
those 1996 changes in the law?
Mr. Virtue. Well, that is right. There would seem to have
been a clear understanding on the part of Mr. Smith and the
authors of the letter that the Administration did have--that
the executive does have that prosecutorial discretion and that
there are appropriate cases in which it should be exercised.
Ms. Lofgren. Now since I have been a Member of the
Judiciary Committee the entire time I have been in Congress and
certainly since 1996, I don't recall that we have made any
changes to the act that provides meaningful discretion to the
immigration judges since the 1996 act. Are you aware of any?
Mr. Virtue. No, I am not.
Ms. Lofgren. So the widespread agreement that some
deportations were unfair and resulted in unjustifiable
hardship--that is a direct quote from the letter--would not be
changed in terms of what the judges could do about those cases.
Mr. Virtue. No, that is right. The law simply hasn't
changed in that regard since 1996.
Ms. Lofgren. Now one of the things that I was interested
in--and I am someone who has expressed concern, frankly, about
the level of removals when we have failed to reform the system
that everybody says is broken--and I think most people do--that
it would be better instead of just barreling down on
enforcement to actually fix the problems in the law that are
creating some of these problems.
But the memo actually talked about fairness to the
immigrant--I mean the letter that Mr. Smith sent. But the memo
that Mr. Morton sent doesn't talk about fairness to the
immigrant at all. It just talks about public safety and
priorities from a law enforcement point of view. Isn't that
correct?
Mr. Virtue. Yes. And that is my understanding of the
purpose of the memo, was to exactly establish those priorities
for--on the enforcement side.
Ms. Lofgren. So they would not actually--this memo wouldn't
be responsive to Mr. Smith's request for leniency. It is
actually a law enforcement priority memo.
Mr. Virtue. Exactly. And in keeping with a relatively long
tradition, dating back to 1976, of issuing such guidance to
officers, yes.
Ms. Lofgren. Well, I think that is very helpful.
I am just going to make one comment. I see my time is
almost through, but I would like to ask unanimous consent to
put into the record the transcript from our hearing on the HALT
Act.
And I note that, at that time, Mr. Crane promised me twice
to get me names of individuals in the Department who he had
alleged had ordered the law not to be followed.
I heard today in his testimony that he had had meetings--
and I am calling them secret meetings because it was the first
that I heard about them, was during the testimony with the
majority.
Honestly, since I was promised and we called over to the
union yesterday to find out where was this information and was
told it wasn't forthcoming, I don't believe you, Mr. Crane,
because you did not live up to what you said you would do. And
I would just ask the majority--not on the spot because,
obviously, this isn't the right forum--but if there is
information that is being kept, that is inappropriate. And I
would certainly hope that after this hearing we might have our
counsels sit down and see what kind of secret documents have
allegedly been provided.
And with that, I yield back Mr. Chairman.
Mr. Gallegly. Without objection, that will be part of the
record of the hearing.*
---------------------------------------------------------------------------
*The inserted material is excerpted from the printed record of the
Subcommittee's hearing held on July 26, 2011 on the ``HALT Act.'' The
hearing, in its entirety, can be accessed at:
http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg67575/pdf/CHRG-
112hhrg67575.pdf.
---------------------------------------------------------------------------
[The information referred to follows:]
Excerpted Material from hearing held on July 26, 2011 on the ``HALT
Act''

__________

Mr. Gallegly. Mr. King.
Mr. King. Thank you, Mr. Chairman.
I would turn first to Mr. Crane and ask you, thinking of
the exchange with Director Morton as the previous panel, do you
know of cases that are open-and-shut cases down in the near
border area that aren't prosecuted due to a lack of
prosecutors, judges, and prison beds?
Mr. Crane. I am sorry, sir. I had a problem hearing you.
Could you repeat the question?
Mr. King. Yes. Do you know of cases that are essentially
open-and-shut made cases that are not prosecuted on the
southern border because of a lack of the ability to prosecute,
lack of judges, or a lack of prison beds?
Mr. Crane. Are you talking about criminal prosecution for
entry and re-entry?
Mr. King. And also for illegal drug smuggling.
Mr. Crane. The drug smuggling, I can't really speak to,
sir. But as far as entry and illegal re-entry, absolutely. They
don't have the judges down there to support it, nor do we
anywhere in the United States.
If I may, most of the cases that Director Morton spoke of
out of those--I believe he quoted 10,000 prosecutions that we
did last year. At least in our district, it pretty much has to
be an aggravated felon for us to prosecute them. So while any
person that reenters the United States gets a felony and they
can be prosecuted, we are not prosecuting those people. They
are only convicted aggravated felons, for the most part.
Mr. King. And would you have an estimate as to what
percentage we are prosecuting?
Mr. Crane. No, sir.
Mr. King. Does anyone have that data?
Mr. Crane. I do not, sir.
Mr. King. Does anyone have that data?
Mr. Crane. They are pretty stingy with the numbers for us.
Mr. King. I am going to suggest that that data has to
exist, that we would have the interdiction numbers, and those
interdiction numbers would be a strong indicator.
I know that there are prosecutorial discretion cases
involved here, too, a little bit off of what the primary
subject has been. But I am boring in on this, that if we have
such an ineffective prosecution that the perpetrators first get
the message from ICE that if you aren't a threat to--let's say
the political viability of the Administration is what it seems
like to me--if you aren't a threat, we are not going to
prosecute you. If you are committing a felony, we likely don't
have the resources to prosecute you. So in both of these
categories we hardly have any deterrent at all.
Would you agree with that statement generally?
Mr. Crane. I absolutely agree with that. And, as I have
said in my previous statements, when we go into jails
oftentimes, illegal aliens approach us, volunteering, begging
us to deport them from the United States because they know that
they will avoid prosecution. They will avoid jail time. We will
send them back to Mexico or Central America, South America,
wherever they came from, and they will be back in our
communities within a week or two committing the same crimes
that they were before. That border is not shut down, I can
promise you that, not when those folks are able to come back a
week later and be in the middle of the United States,
committing crimes and apprehended by the police again.
Mr. King. And the deterrent effect. I remember standing in
a border station on the Arizona border and asking the question,
how many times do you see a unique individual come through
here? The answer I got back was 37--actually, 38. We ran the
numbers, and it came out of the database at 27 in either case,
27 times through the border and not having any enforcement.
Does that number surprise you?
Mr. Crane. No, sir. Not at all.
Mr. King. Do you know of any bigger numbers than that?
Mr. Crane. I don't know of any bigger numbers than that,
but I definitely know about comparable numbers. I work on the
interior of the country. We run the fingerprints. We get the
recidivist hits. And they do. They come up with 20, 25 times
that they have been apprehended at the border elsewhere and
never even put into administrative proceedings and officially
deported and only given voluntary removals.
Mr. King. Do you ever get the sense when you go to work
each day that you are handed a shovel to dig a hole and then
fill it back up and punch out and go home?
Mr. Crane. Yes, sir.
Mr. King. I appreciate those answers to that.
And as the clock is ticking, I would just comment that my
frustration is I don't know how you have morale with that kind
of a scenario if you can't measure success. But I will turn to
Mr. Rivkin; and thank you, Mr. Crane.
I will turn to Mr. Rivkin, your testimony about the
constitutional question of this discretionary amnesty or
administrative amnesty that we have. And your arguments are
very clear to me and I think strong, that it is
unconstitutional. What would you think of the prospects of
litigating this?
Mr. Rivkin. Unfortunately, most of the structural
violations of separation of powers, I am not--it is not easy to
gain standing. There are certainly insurmountable obstacles,
but it doesn't mean that that is the right way to behave. And,
again, it sets a horrible precedent.
Let me just say briefly again, in many respects, it is a
self-inflicted wound. It is not just those documents that you
were talking about which, with all due respect to Mr. Virtue,
if you look at it, it clearly excludes more or less
categorically whole segments of illegal alien population.
But when you read in every major newspaper that the
Administration has given briefings, combined with letters by
Napolitano, to various immigration rights groups which
basically say the following categories of people would not be
deported, that is a remarkable--I cannot think of any other
instance in our history that the Administration has acted----
You think about, can you have an environment section of the
Justice Department say, because of resource constraints, we are
not going to enforce the Clean Water Act, we are not going to
enforce the Clean Air Act? That would be unprecedented.
And, again, I would say the easiest way to fix it, at least
in my opinion, is for the Administration to say, no, that is
not what we are doing. We are going to deport individuals,
maybe in small, fewer numbers, who have not committed
criminal--nonimmigration related criminal law violations. But
they are not saying it.
So, in some sense, with all due respect to everybody here,
it is in the open. You don't need to wait for a couple of years
to see what the track record is. They are quite open about it,
and I find it terribly disturbing.
Mr. King. I thank you, Mr. Rivkin. And just in short
conclusion, I would say that I appreciate all the witnesses'
testimony and I would like to have time with Mr. Tranchant and
we don't have, but your story is compelling as is your
testimony. Thank you all, gentlemen, and I yield back.
Mr. Gallegly. I thank the gentleman. Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Tranchant, I was a prosecutor in my former life and I
want to tell you how much my heart broke at your testimony. And
the real cost is impossible to measure, as you so eloquently
put it, and I will continue to think of you and your family.
Mr. Gowdy. Mr. Crane, were you here when Director Morton
testified?
Mr. Crane. Yes, sir.
Mr. Gowdy. Were you given, as the White House was, an
opportunity to provide input into the so-called prosecutorial
discretion memos?
Mr. Crane. None, sir, whatsoever. We actually met with the
agency the day before they released the memo and they didn't
even tell us it was coming out. So we heard about it from the
news like everyone else.
Mr. Gowdy. And what was the reaction of the line agents?
Mr. Crane. Well, I think it is the same as it is today,
sir. There is still a lot of confusion in the field. I know
that Director Morton said that he had discussed this with field
office directors. But I can promise you that that information
is not making it to most of the rank and file officers out in
the field as to what exactly we are supposed to do with this
memo and how we are supposed to enforce it. So overall a lot of
confusion and frustration.
Mr. Gowdy. I shared with him as I will with you, and I will
also thank you for your service as I did him, you know,
politics is in everything. You can't--you can try to avoid it.
You can run from it, but it is in almost everything. I just
wonder if it is not too much to ask that we keep it out of the
criminal justice system as best we can. It just strikes me that
there is a political undertone to these memos. Am I wrong? Is
it devoid of any politization; is this strictly a law
enforcement resource priority issue or are there some political
undertones that perhaps haven't been addressed?
Mr. Crane. Well, as a union I can tell you on behalf of our
officers and agents that we definitely believe this has
political overtones. When you exclude your law enforcement
officers, the folks that have the technical expertise in the
field from, any kind of development of policies and you bring
in special interest groups, which I know Director Morton said
that groups weren't brought in for this, or at least to his
knowledge, but I know they have been for previous policies,
that has been the environment that we have existed in, and it
seems very evident to us that it is about satisfying those
groups and not developing sound law enforcement policies. We
could be an important part of that. We could make that happen,
but the Administration and Director Morton and Secretary
Napolitano are not interested in that. And when we look at
things like the discretionary--I'm sorry, the prosecutorial
discretion memo, it is not good law enforcement, especially
when you put it out in the field and don't even tell us how to
enforce it or give us any guidance.
Mr. Gowdy. I want to ask you about two things specifically.
I was struck that there was a second memo that carved out
exceptions for certain categories of civil litigants. That
struck me as--"ironic'' may not be the right word but I
probably can't use the right word in a public hearing. So let
me ask you about part of your testimony. You created a fact
pattern by which you could be executing a search warrant,
executing an arrest warrant, and you are forbidden by policy
from interacting with certain categories of people that are on
the scene.
Did I hear that correctly? Surely I did not.
Mr. Crane. That is correct, sir. Actually we did provide
some internal documents to Chairman Smith. He had actually
invited me during the last testimony to do that. He was
concerned about protecting the identities of our agents that
might come forward because of the fear of retaliation.
I am sorry, I lost my train of thought there for a second.
Mr. Gowdy. We are talking about the execution and search
warrants and whether or not you can interact with certain
categories of people who are present at suspected crime scenes
or whether you are forbidden by policy from being able to do
that.
Mr. Crane. Correct. Actually I have some statements written
down on a piece of paper here that came from some of those
documents. These are deputy associate directors, so they are at
ICE headquarters, you know, top of the food chain. If the
aliens you encounter are not criminals, they will not be
arrested. I am telling you to walk away from a non-criminal
fugitive--or am I telling to you walk away from a criminal or
non-criminal fugitive reinstatement? Yes. Why are you wasting
your time talking to everyone else in the house? Only targets
will be arrested. There will be no collateral arrests of any
sort.
So when our officers go into the house at least during some
of these operations they are being told, you will not talk to
anyone in that house, you will get the target and you will get
out. As I said in my testimony, that is where we make some of
our most significant arrests with regard to public safety. I
can't tell you how many times we go in a house even to get a
non-criminal and end up walking out with two serious bad guys
because in the past we really had prosecutorial discretion and
we had the ability to do our jobs and question people and talk
to people. And by doing so, like every other law enforcement in
the country can, we were able to identify far more serious bad
guys than we could ever do just looking for simple targets.
Mr. Gowdy. Thank you, Special Agent. Thank you, Mr.
Chairman.
Mr. Gallegly. Thank you, Mr. Gowdy. The gentleman from
Tyler, Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Chair. I just want to continue on
that train of thought. With regard to information about
instructions, if you go into a home to get someone, you are not
to arrest anyone else in the home, was that information known
in Arizona when they passed the law they did allowing local law
enforcement to inquire of people whether or not--their legal
status when they were detained for other reasons? Do you know
when this first became public?
Mr. Crane. I do not know the answer to that, sir.
Mr. Gohmert. It seems like it ought to be a commendable
thing when a State seeks to enforce the law. Because you know,
the founding of the country was such that they thought people
should be treated equally under the law, nobody was too good,
nobody was too bad, everybody was to be treated equally under
the law. And it seems like really we have degenerated into a
Third World country where it is all about who you know. It is
all about who is in power at the time as to who is going to be
treated what way. And what disturbs me in the prosecutorial
discretion, of course there is a million things that do, but
particularly the term ``the person's criminal history,
including arrests, prior convictions or outstanding arrests
warrants.'' All of you understand that just in that one little
phrase there is one of the factors that could be utilized to
use discretion. There are all kinds of scenarios, there is all
kinds of room for abuse here and you are talking to a guy who
is a former judge.
And Mr. Tranchant, my heart has gone out to you. I had as a
judge presiding over felonies one case where a guy was in the
courtroom and he had been indicted for a felony for driving
while intoxicated, and when we get around to his case, turns
out he had many DWIs or DUIs in some jurisdictions. But he
finally got to me after he hit somebody, thank God he didn't
kill them, and because he had been in jail so many times for
DWI and had never been removed and because I am supposed to
consider safety of the public, it seemed like he needed to be
in prison, the man couldn't stop himself from drinking and
driving. So I sent him to prison. And it was a matter of months
he was back in my courtroom for another felony DWI. And when I
inquired through the interpreter how he got back so fast, he
said he was taken to the Texas-Mexico border and ordered to
walk across and he did. And he waited around on the other side
until those folks left, and then he went around the bridge and
came back across immediately, came back to our county and got
drunk and drove again.
Now, I am really curious who would ultimately, Mr. Crane,
if you know, anybody else knows, make the kind of call, gee,
there is only nine DWIs so let's don't go after this guy yet. I
sent the man to prison and it was only after he went to prison
that within I think it was like 3 months he said they came and
got him out of prison, took him to the border and told him to
walk across and then he comes back later. Who makes those
calls? Well, he's been in jail nine times, but now he is in
prison so let's go get him out of prison so he can come back
down to their county down the road. Who makes those calls?
Anybody know?
Mr. Crane. Those calls are made within the office generally
by management officials. As officers we really don't have that
power, and it tends to be a roller coaster from week to week,
month to month as to whether or not we can actually apprehend
them. I can tell you this. As officers we have been screaming
bloody murder about this for years. We wasn't every one of
those guys at least put into proceedings for deportation.
Mr. Gohmert. Do you know how people are taken to the Texas-
Mexico border when they are not put on a flight somewhere else?
Have you seen those deportations take place?
Mr. Crane. Have I seen them take place at the border?
Mr. Gohmert. Yeah.
Mr. Crane. No, sir, I have not. I don't work on the border.
Mr. Gohmert. Okay. Are you familiar with how it normally
works on the border?
Mr. Crane. Yes.
Mr. Gohmert. How long to do they wait after someone is
deported or taken to the border and sent across? Do you know
how long they normally wait?
Mr. Morton. It varies with the individual. Some of them
literally tell us, thanks for the paid vacation, I am going to
go see my mom and then come back. Some say see you guys next
week. So some of them turn right around that night and they
come back, others literally stay for a couple of weeks and come
back to the U.S. at their leisure.
Mr. Gohmert. I see my time has expired.
Mr. Gallegly. The time of the gentleman has expired. I want
to thank all the witnesses. And I particularly want to
associate myself with the comments of Mr. Gohmert and Mr. Gowdy
as it relates to you and your family, Mr. Tranchant. As a
father of four and a grandfather of 10, I can't imagine. And my
thoughts and prayers are with you.
Thank you all for your testimony today. Without objection,
all Members will have 5 legislative days to submit to the Chair
additional written questions for the witnesses which we will
forward and ask that the witnesses respond to as promptly with
their answers as they will be made a part of the record of the
hearing. And without objection, all Members will have 5
legislative days to submit any additional material for
inclusion in the record.
Again, thank you for being here today and the Subcommittee
stands adjourned.
[Whereupon, at 5:18 p.m., the Subcommittee was adjourned.]

A P P E N D I X

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Material Submitted for the Hearing Record