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

DEPARTMENT OF HOMELAND SECURITY

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

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

JULY 19, 2012

__________

Serial No. 112-136

__________

Printed for the use of the Committee on the Judiciary

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

U.S. GOVERNMENT PRINTING OFFICE
75-154 WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

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 JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel

C O N T E N T S

----------

JULY 19, 2012

Page

OPENING STATEMENTS

The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2

WITNESS

The Honorable Janet Napolitano, Secretary, U.S. Department of
Homeland Security
Oral Testimony................................................. 6
Prepared Statement............................................. 8

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 42

APPENDIX
Material Submitted for the Hearing Record

Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 80
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Member, Committee on the Judiciary............................. 246
Response to Questions for the Record from the Honorable Janet
Napolitano, Secretary, U.S. Department of Homeland Security.... 253

DEPARTMENT OF HOMELAND SECURITY

----------

THURSDAY, JULY 19, 2012

House of Representatives,
Committee on the Judiciary,
Washington, DC.

The Committee met, pursuant to call, at 10:13 a.m., in room
2141, Rayburn Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbrenner, Coble,
Gallegly, Goodlatte, Lungren, Chabot, Forbes, King, Franks,
Gohmert, Poe, Chaffetz, Gowdy, Ross, Adams, Quayle, Amodei,
Conyers, Nadler, Scott, Watt, Lofgren, Waters, Pierluisi, and
Chu.
Staff Present: (Majority) Richard Hertling, Staff Director
and Chief Counsel; Travis Norton, Counsel; Holt Lackey,
Counsel; David Lazar, Clerk; (Minority) Perry Apelbaum, Staff
Director and Chief Counsel; Danielle Brown, Counsel; David
Shahoulian, Counsel; and Tom Jawetz, Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
We welcome everyone to this hearing, and especially
Secretary Napolitano, and appreciate her giving us the time
today.
I will recognize myself for an opening statement, and then
the Ranking Member.
Welcome, again, Secretary Napolitano, to today's oversight
hearing of the Department of Homeland Security. DHS is
responsible for the enforcement of America's immigration laws.
But under the current Administration, the department seems
instead to work to undermine those laws, and it has actively
worked to make sure that many others do not enforce our
immigration laws either.
Obama administration officials recently decided to grant
amnesty under the guise of ``deferred action,'' and also work
authorization, to potentially millions of illegal immigrants.
This unprecedented decision ignores the rule of law that is the
foundation of our democracy. In exercising its responsibility
to see that the laws are faithfully executed, the Executive
Branch does have the power of prosecutorial discretion on a
case-by-case basis, but this authority cannot be used to
systematically dismantle our immigration laws.
More than a century and a half ago, the Supreme Court noted
that the President's constitutional power to enforce our laws
does not imply that they can forbid their execution. President
Obama understood this when he admitted last year that, quote,
``There are laws on the books that Congress has passed'' so the
Administration cannot ``just suspend deportations through
executive order.''
But President Obama has broken this promise to the American
people. This Administration's decision to grant administrative
amnesty on a mass scale ignores the rule of law and the
separation of powers.
The Administration's amnesty agenda is a win for illegal
immigrants, but a loss for Americans. When illegal immigrants
are allowed to live and work in the U.S., unemployed American
workers have to compete with illegal immigrants for scarce
jobs. With 23 million Americans unemployed or underemployed,
this amnesty only makes their lives harder.
The Obama administration's amnesty is also a magnet for
fraud. Many illegal immigrants will falsely claim that they
came to the U.S. as children, and this Administration refuses
to take the steps necessary to check whether their claims are
true or not.
Time and again, the Department of Homeland Security has
gone out of its way to avoid the enforcement of immigration
laws. The Department of Homeland Security's policy of non-
enforcement will continue to cost innocent Americans their
jobs.
As Secretary of Homeland Security, Madam Secretary, you,
like all Americans, also must be extremely concerned about the
recent disclosure of national secrets. The methods and sources
of intelligence we use to protect homeland security must be
kept strictly secret. When these secrets leak and become public
knowledge, American lives are threatened.
Recent damaging leaks include operational details of the
Bin Laden raid, specifics about how we conduct cybersecurity,
and information about drone strikes. Because of these leaks,
our enemies now know how we will hunt them, which will only
make the hunt more difficult.
Homeland security depends on our ability to keep secrets
from those who would attack our homeland. When these secrets
leak and become public knowledge, our people and our national
interests are put in jeopardy. When our enemies know our
secrets, American lives are in danger.
The government's ability to keep national security secrets
depends on identifying the causes of the recent leaks and
putting a stop to them. That is why I have asked to interview
senior officials who may have information on how these secrets
become public.
The Department of Homeland Security has a responsibility to
deter and prevent terrorists from attacking the United States.
To do this, we must protect the details of our intelligence-
gathering.
That concludes my opening statement. And the gentleman from
Michigan, the Ranking Member, is recognized for his.
Mr. Conyers. Thank you, Mr. Chairman.
And welcome, Madam Secretary.
I want to remind you, I meant to do it off the record, but
I want to remind the Chairman that his opinion is his own, but
the facts are not, the ones that he controls. And I am keeping
a record, I want to announce to him, of all of the things that
I think are serious misstatements of fact, which I will be
taking either to the floor or publishing otherwise. I think I
mentioned this to you before----
Mr. Smith. I am sure you did.
Mr. Conyers. So I think you have given me some work to do
already.
And I would like to say to all the Members of this
Committee, I want this to be a civil hearing in which we
exchange views, make criticisms, voice opinions. But I would
like it to be done in keeping with the reputation of the House
Judiciary Committee, so that we don't get out of control. And I
am sure the Chairman will agree with me on that.
I welcome you, Madam Secretary. And I had some issues about
some security incidents in Detroit. And I would like not to
take up our time talking about them here, but I would be
looking forward to it, because Detroit, of course, the Detroit-
Windsor Tunnel, is the largest commercial border crossing in
North America, and these threats are of concern both to our
country and to Canada as well.
Now, the other couple of things that I wanted to commend
you on is the fact that we have improved border security. And
having listened to some of my colleagues, I thought that the
border security on the southern end of our country was in bad
shape. But border security is more secure than it has ever been
before, I think due to increased border enforcement efforts.
And unauthorized border crossings are at a 40-year low. We
haven't seen border apprehension numbers this low since 1972. I
commend Homeland Security for that.
And if there are other insights that you would like to
share with us today, and we have time, I would like to do it.
If not, I would like to get more information from you or your
staff.
At the same time, immigration removals have been at an all
time high, just short of 400,000 last year. And what is more
impressive is the makeup of the numbers.
For the first time ever, persons with criminal convictions
made up more than half of those removals, and more than 90
percent met the Administration's enforcement priorities, which
includes recent border crossers and repeat violators.
And so even in the critical shortage of funds and
personnel, I think that the strategies of your department are
effective and are taking hold. The policy in ICE, in
consultation with the Civil Rights and Civil Liberties Office,
has developed a new policy designed to protect victims of
domestic violence and other crimes, and to ensure that they are
reported.
The Dream Act, a conservative-created idea, which I
support, has been very effective. And young people brought to
this country through no fault of their own, and this is
popularly accepted among our citizenry, are given, if they go
into service and graduate and do a few other things that
indicate they want to be good Americans like the rest of us,
are given a special way to achieve their dream of citizenship.
And so I thank you for coming back again. And I will put
the rest of my statement in the record, and thank the Chairman
for his generosity with the time.
Mr. Smith. Without objection.
Thank you, Mr. Conyers.
[The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary

Twenty years ago, the Supreme Court decided in Quill Corp. v. North
Dakota that it was too difficult for a remote seller to comprehend
every tax law in every state and locality in which it may sell
something. In its view, states needed to simplify their sales tax laws
so remote sellers could understand them easily. Otherwise, these
complicated sales tax laws burdened interstate commerce.
The Supreme Court decided that without simplification, a remote
seller would not have to collect sales taxes in a state in which it
does not have a substantial presence, or in its view, a physical
presence.
But the court did clearly state that Congress is better suited to
determine whether a remote seller must collect and remit sales taxes.
It is past time for Congress to make that determination and we
should do so now particularly in light of the many technological
advances that have occurred since the Court rendered its decision 20
years ago.
For example, because of these technological advances, smartphones
can tag a photo with the date, time, and most relevant, the precise
location through GPS, where the photo was taken, no matter where it was
taken.
Clearly, technology has eliminated the burdens a remote seller
would have had in 1992. And technology has made it easier for Congress
to act now. Doing so will accomplish several important goals.
By addressing the Quill decision, Congress will ensure competitive
equity among retailers.
The Internet allows consumers to comparison shop quickly before
making a final purchase. Oftentimes, a consumer can walk into a brick
and mortar store, check the price of the item, ask the salesperson a
few questions, and then take out a smartphone to find a cheaper price
online.
The online retail price is generally lower because many Americans
do not have to pay any sales tax, which can make a significant
difference in the final purchase price, ranging anywhere from 3 to 12%
of the price of the item.
This gives out-of-state retailers who operate online a clear
advantage. They can charge the same basic pre-tax price as a local
retailer for a pair of designer jeans or a video game console, but the
price the consumer actually pays is lower because they do not collect a
sales tax.
It is obvious why savvy consumers, especially in this cost-
conscience environment, would take advantage of such considerable
savings.
This also explains why the percentage of online sales and the total
amount of online sales continue to increase.
Competitors should compete on things other than sales tax policy.
For those arguing for more of a free market, they should support
eliminating any competitive advantage based on sales tax policy.
Uncollected sales taxes also have a negative impact on local
communities, including retailers, and local and state governments.
Fewer purchases at local retailers translate to fewer local jobs.
Main Street retailers, local mom-and-pop stores, and even big-box
retailers suffer when they lose customers because they have to collect
a sales tax while online retailers do not.
Lower sales at local retailers also translate to lower revenue for
local and state governments. Sales taxes constitute a significant state
and local revenue source.
For example, the Census Bureau estimates that nearly one third of
state and local revenues are derived from general sales and use taxes.
With ever increasing online sales, states and local governments
anticipate huge revenue losses as a result of uncollected sales and use
taxes.
For example, the Michigan Department of Treasury estimates that
total revenue lost to e-commerce and mail order purchases will total
$872 million during fiscal years 2012 and 2013.
The impact of such lost revenue is reflected in

forced cutbacks to public education programs, such as
sports, after-school enrichment programs, and extracurricular
activities,

delapidated roads and bridges not being repaired, and

reductions in critical services, such as police and
firefighter protection.

Just last week, the State Budget Crisis Task Force, which is led by
Paul Volcker and Richard Ravitch, released a report on the plight of
states.
In its report, the task force recommended that Congress should
grant states the authority to collect sales taxes on online sales.
Doing so would help states address their budgetary problems.
Otherwise, states will have to cut services further. Or, replace
the erosion of sales taxes by increasing taxes in other areas,
something anti-tax advocates would surely oppose.
Fortunately, Congress can ensure a level playing field and address
state revenue issues by passing bipartisan supported legislation that
would allow states to require remote sellers to collect and remit sales
taxes.
H.R. 3179, the ``Marketplace Equity Act of 2011,'' introduced by my
colleagues, Representatives Steve Womack and Jackie Speier would grant
that much-needed authority.
I introduced similar legislation, H.R. 2701, the ``Main Street
Fairness Act.''
Our colleagues on the other side of the Capitol, Senators Mike
Enzi, Dick Durbin, and Lamar Alexander, introduced S. 1832, the
``Marketplace Fairness Act.''
Although each of the three bills take different approaches, they
each would accomplish the same goal: leveling the playing field between
retailers and online sellers by granting that essential authority.
Today's hearing focuses on H.R. 3179, a bipartisan bill that would
simplify collection rules and increase compliance. As a result, it
would ensure fairness and provide a national solution.
This bill would neither impose a national sales tax nor lead to any
new taxes. Consumers already owe sales and use taxes on the goods and
services they purchase; however, many do not pay it voluntarily.
The business community has worked tirelessly on this issue and
supports this bill. Big-box retailers, such as Walmart, Best Buy, and
JC Penney, and small businesses, such as Michigan-based Marshall Music
and the National Association of College Stores, are urging Congress to
act and pass much-needed legislation.
Even giant online retailer Amazon.com, which has benefitted from
not having to collect sales taxes in many states, supports Congress
acting.
Other supporters of this legislation include at least a dozen
governors--both Democratic and Republican--as well as the National
Governors Association. In addition, the National Conference of State
Legislatures, and the National League of Cities, along with many
organizations also urge Congress to pass legislation addressing this
issue.
I believe that Congress should pass legislation that promotes
economic efficiency and helps our states and local governments maintain
financial support for public education, health, and safety.
The Marketplace Equity Act and the other legislative proposals that
I mentioned accomplish these goals.
I thank Chairman Smith for holding this very important hearing and
I urge the Chairman to markup this bill at the next scheduled markup.
__________

Mr. Smith. Our witness today is Janet Napolitano, Secretary
of the United States Department of Homeland Security.
Sworn in on January 21, 2009, Ms. Napolitano is the third
Secretary of DHS. Prior to becoming Secretary, Ms. Napolitano
was in her second term as Governor of Arizona. Before becoming
Governor, Ms. Napolitano served as attorney general of Arizona
and as U.S. Attorney for the District of Arizona.
She is a 1979 graduate of Santa Clara University, where she
won a Truman Scholarship and was the university's
valedictorian. She received her Juris Doctorate from the
University of Virginia School of Law in 1983.
Before entering public office, Ms. Napolitano served as a
clerk for Judge Mary M. Schroeder on the U.S. Court of Appeals
for the Ninth Circuit and practiced law in Phoenix, Arizona.
Secretary Napolitano, we look forward to your testimony
today, and please begin.

TESTIMONY OF THE HONORABLE JANET NAPOLITANO, SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY

Ms. Napolitano. Thank you, Chairman Smith and Ranking
Member Conyers and Members of the Committee.
I am pleased to join you today to address the homeland
security issues that fall within the Committee's jurisdiction.
Just as a parenthetical, this is now my 40th time
testifying before either the Senate or the House.
Today, nearly 11 years after the 9/11 attacks, America is
stronger and more secure, thanks to the work of the men and
women of DHS and our Federal, State, local, tribal, and
territorial partners across the homeland security enterprise.
Every day, more than 230,000 DHS employees ensure the
safety and security of the American people in jobs that range
from law enforcement officers and agents to disaster response
coordinators, from those who make sure our waterways stay open
to commerce, to those who make sure our skies remain safe. The
men and women of DHS are committed to our mission, and I thank
each one of them for their service.
Now as I have said many times, homeland security begins
with hometown security. As part of our commitment to strengthen
hometown security, we have worked to get information, tools,
and resources into the hands of State, local, tribal and
territorial officials and first responders. And this has led to
significant advances.
We have made great progress in improving our domestic
capabilities to detect and prevent terrorist attacks against
our citizens, our communities, and our critical infrastructure.
We have increased our ability to analyze and distribute threat
information at all levels.
We have invested in training for local law enforcement and
first responders of all types in order to increase expertise
and capacity at the local level. And we have supported and
sustained preparedness and response capabilities across the
country through more than $36 billion in Homeland Security
grants since 2002.
As the Committee knows, we also have made substantial
advances in securing our Nation's borders and enforcing the
immigration laws. And at the same time, we have worked to
streamline and facilitate the legal immigration process.
In my time, I would like to discuss our efforts with
respect to immigration consistent with the Committee's
jurisdiction over this important, indeed, essential, issue for
our country.
As Ranking Member Conyers noted, over the past 3 and a half
years, this Administration has deployed unprecedented levels of
personnel, technology, and resources to protect our Nation's
borders. These efforts have achieved significant results, and
illegal immigration attempts are at their lowest levels since
1971.
This decrease in apprehensions of those seeking to enter
the country illegally, one of the best indicators of illegal
immigration attempts, is combined with increases seizures in
drugs, weapons, cash, and contraband.
To secure our Nation's Southwest border, we have continued
to deploy unprecedented amounts of manpower, resources, and
technology, while expanding our relationships and partnerships
with Federal, State, tribal, territorial and local partners, as
well as with the Government of Mexico.
Simply put, the Obama administration has undertaken the
most serious and sustained action to secure the Southwest
border in our Nation's history. This includes increasing the
number of Border Patrol agents nationwide from approximately
10,000 in 2004 to more than 21,000 today, with nearly 18,500
boots on the ground and air coverage border-wide along the
Southwest border.
We also have worked, and continue to work, to enforce and
administer our immigration laws in a cohesive way that is
smart, effective, and that maximizes the resources that
Congress has given us to do this important job.
Our priorities are to enhance public safety, national
security, border security, and the integrity of the immigration
system, while respecting the rule of law and staying true to
our history as a Nation of immigrants.
We carry out these priorities by focusing our resources on
the identification and removal of criminal aliens, repeat
immigration violators, recent border entrants, and those who
otherwise pose a threat to public safety or national security.
To this end, we have expanded the use and frequency of
investigations and programs that track down criminals and other
public safety and national security threats on our streets, in
our neighborhoods, and in our jails.
These efforts have achieved historic results, including the
removal of 216,000 convicted criminals in 2011, the highest
number ever. This year, we will remove the highest number of
aggregated felons ever.
Furthermore, these efforts are enhanced by our use of
prosecutorial discretion, including my June 15 announcement
regarding the availability of deferred action for individuals
who came to the United States as children.
These policies promote the efficient use of our resources,
ensuring that we do not divert them away from the removal of
convicted criminals by pursuing the removal of young people who
came to this country as children, and who have called no other
country home. Implementation of the deferred action process is
underway, and we will be ready to accept applications on August
15.
Additionally, we have made numerous improvements to our
administration of immigration benefits and services, continuing
our tradition as a welcoming Nation to new immigrants,
businesses, students, and those seeking refuge and asylum.
In conclusion, this department has come a long way, and in
the nearly 11 years since 9/11, to enhance protection of the
United States and engage our full range of partners in this
shared responsibility.
Together, we have made significant progress to strengthen
our borders, enforce our immigration laws, and improve and
streamline our immigration processes and systems.
But we are aware of challenges that remain. Threats against
our Nation, whether by terrorism or otherwise, continue to
exist and to evolve. And DHS must continue to evolve as well.
We continue to be ever-vigilant to protect against threats
to our Nation, while promoting the movement of goods and
people, and protecting our essential rights and liberties.
I thank the Committee for your attention as we work
together to keep the country safe, and I am looking forward to
your questions. Thank you.
[The prepared statement of Ms. Napolitano follows:]

__________

Mr. Smith. Thank you, Madam Secretary. I will recognize
myself for questions.
And let me go first to the subject I mentioned in my
opening statement a minute ago, and that is the subject of the
leaks that I feel and so many others feel have endangered our
national security and actually put American lives at risk.
As you know, there is bipartisan concern for those leaks.
You had the Chairs of the House Intelligence Committee and the
Senate Intelligence Committee both saying that the extent of
these leaks are broader, deeper, more dangerous than any we
have seen in recent years.
Have you had the opportunity to talk to the President and/
or his national security advisers about these leaks and how to
prevent them in the future?
Ms. Napolitano. Mr. Chairman, I have spoken with the head
of the DNI about the leaks. He is leading an investigation, as
you know, but I too take these very seriously. They do endanger
homeland security.
Mr. Smith. Okay. And according to media reports, and we are
talking about in this case the New York Times and the AP, it
was high-level Administration officials who were the source of
these leaks. Have you taken any action yourself to try to find
out more about how they occurred and why high-level
Administration officials were involved?
Ms. Napolitano. No, I have not myself, Mr. Chairman. But
others are looking into the source of the leaks.
Mr. Smith. Well, speaking of the others looking into it, do
you favor the appointment of, say, a special counsel to
investigate these leaks? And let me say before you answer that,
when we had the incident of a single leak during the last Bush
administration, that President was willing and did appoint a
special outside counsel.
Would you support such an outside counsel being appointed
because of these recent leaks?
Ms. Napolitano. Mr. Chairman, there are a number of
individuals that are looking into the source of the leaks. I
don't know that appointing yet another one would add anything
of value.
Mr. Smith. Well, let me explain why I think it would, very
quickly. What the Administration has done is to appoint
individuals to investigate itself. And I am not sure how much
confidence the American people will have that that is going to
be an objective or in-depth investigation where the
Administration is, as I say, investigating itself.
It would be far more credible for the Administration to
appoint a special counsel, an outside party to get to the
bottom of the leaks. So I am disappointed the Administration
has not been willing to do that.
Let me go now to the subject of the Administration trying
to implement some of the Dream Act provisions without a vote of
Congress, but go to the way that is being implemented.
Will individuals who have pending Dream Act applications be
eligible for advanced parole? I mentioned this to you earlier,
but it is my understanding they would eligible. Do you have any
reason to think otherwise?
Ms. Napolitano. This is not an advanced parole program.
This is a deferred action, case-by-case----
Mr. Smith. Right, I know it is not an advanced parole
program, but would individuals be eligible to receive that
status, who would be considered under these provisions?
Ms. Napolitano. There may be particular individuals, Mr.
Chairman, but the program is designed to be a case-by-case
analysis only for deferred action.
Mr. Smith. Okay, but individuals might be considered for
advanced parole?
Ms. Napolitano. Again, there are so many individual factors
that go into each case that I don't want to make a categorical
answer.
Mr. Smith. I am not saying that all would, but you said
that some individuals might be. That is of some concern to me
because if they get that status, that is going to enable them
to get lawful permanent status, which is the path to
citizenship.
So if you go down that road, as I think you may be going, I
think we need to be aware of the consequences of those actions.
Ms. Napolitano. Mr. Chairman, if I might respond to that?
Mr. Smith. Sure.
Ms. Napolitano. The factors that go into this are the
factors laid out in my memorandum to our department heads on
June 15th. This is clearly a deferred action, case-by-case
analysis.
Mr. Smith. Right.
Ms. Napolitano. There may be factors independent of and
separate from----
Mr. Smith. I know it is case-by-case, but individuals, I
think, will be eligible. And that will put them on the path to
citizenship.
Next question: Are the parents of individuals, of those who
receive Dream Act amnesty, would they be eligible for
prosecutorial discretion, the parents of the individuals?
Ms. Napolitano. They will not be eligible for deferment,
deferred action, pursuant to my June 15 memorandum. They may
independently be subject to an exercise of prosecutorial
discretion, should they have a case before ICE----
Mr. Smith. Okay.
Ms. Napolitano [continuing]. For example.
Mr. Smith. And last question is this: DHS does not
currently plan to require Dream amnesty applicants to provide a
certified school transcript. It seems to me that that is the
only way to prove that those individuals were in the country
and are eligible under some of these provisions. Do you plan to
require applicants to provide that certified school transcript
or not?
Ms. Napolitano. Mr. Chairman, we are still working through
the details on some of that. Our plan is to accept different
types of documents and to----
Mr. Smith. Right.
Ms. Napolitano [continuing]. Enhance our fraud prevention
efforts.
Mr. Smith. How can you still be working through those
details when I understand over 1,000 individuals have already
been granted status under these provisions?
Ms. Napolitano. We are working through the details of how
someone who is applying through CIS, what records they have to
produce.
ICE already had several individuals in their removal
proceedings and have looked at those.
Mr. Smith. And is it true about 1,000 individuals have
already been approved under the Dream Act?
Ms. Napolitano. About 1,000 have been approved for deferred
action, yes.
Mr. Smith. And we still don't know the details about
whether transcripts are going to be required or not?
Ms. Napolitano. Well, school transcripts, residency
records, medical records, anything to show residency, age, what
have you.
Mr. Smith. Right.
Ms. Napolitano. And then we will evaluate on a case-by-case
basis those documents----
Mr. Smith. So the certified school transcripts may or may
not be required?
Ms. Napolitano. I think that is fair to say.
Mr. Smith. Okay. Thank you, Madam Secretary.
And the gentleman from Michigan, Mr. Conyers, is recognized
for his questions.
Mr. Conyers. Thank you, Chairman Smith.
Thank you, Secretary Napolitano.
I wanted to start off with these threats at the border
crossing in Detroit and Windsor. Is there any comment you can
make about that at this point?
Ms. Napolitano. Excuse me, I am sorry?
Mr. Conyers. About the bomb threats that shut down the
Ambassador Bridge in Detroit and Windsor for about 5 hours, and
they are of national concern and, of course, in my locality.
Do you have any information you can share with us at this
point on that?
Ms. Napolitano. Congressman, let me just say that the FBI
has an open and active investigation there. We are providing
all assistance necessary. We take this very seriously. And we
are also looking, quite frankly, operationally at how long the
closures were, to see whether there are ways to more swiftly
clear a bridge or a tunnel for the lawful commerce that needs
to go back and forth.
Mr. Conyers. Thank you.
Now, the Chairman of this Committee mentioned amnesty twice
only. That was much less than he usually does. But the Dream
Act, can you help us clear up this notion of some kind of
deferred amnesty being involved in this, please?
Ms. Napolitano. It is not amnesty. What this is, is it is
really the development that we have been looking at over the
last several years of how do we clear out the backlog of non-
priority cases, so that we can focus on criminals, recent
border crossers, repeat violators. And this particular group
has strong equities for it.
As we went through the case-by-case analysis of the
existing backlog, it became clear to me that we needed to do
something in addition to that. And that resulted in the
conclusion to offer 2-year deferred action, case-by-case
analysis, subject to renewal.
Mr. Conyers. What about the recent Arizona case? The court
opinion gave us some strong support for the executive branch to
exercise prosecutorial discretion. Do you have any comments
that you can share with us about that matter?
Ms. Napolitano. The Supreme Court, I think, validated the
fact that the Federal Government ultimately has the discretion
in enforcing and choosing how to enforce the Nation's
immigration laws. And I think their language is very strong.
If you go back through precedent, you have Reno v. The Arab
American Anti-Discrimination League. You have Chaney v.
Heckler. And ultimately, you have Article II, Section 3 of the
Constitution, reaffirming that the executive has discretion in
terms of who to prosecute and who to prioritize resources for.
In this case, criminals, recent border violators, and repeat
violators.
Mr. Conyers. Now, our Subcommittee on Crime issued a
subpoena for information related to individuals who are
arrested, identified by ICE for removal, but never taken into
ICE custody. And I have been told you produced nearly 250,000
individuals satisfying the subpoena, and you continue to
provide additional information.
How is that coming along? That was a sort of--we don't
normally have Subcommittees issuing subpoenas, but, oh well,
you know.
Ms. Napolitano. We intend and have been trying to comply
with the subpoena and to provide the documents. A lot of the
requests are for documents in formats other than how we
maintain the documents, which adds an additional level.
I think we just received another request, I want to say in
mid-July. We intend to comply with that.
Mr. Conyers. I have other questions, but I will be
submitting them to you and will be putting them in the record.
Thank you, Chairman Smith.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from Wisconsin, Mr. Sensenbrenner, is
recognized.
Mr. Sensenbrenner. Thank you very much.
Madam Secretary, first of all, let me compliment you for
trying to soften me up by revealing that you are a Packers fan.
I commend you for your very good judgment on that.
Now, one of the biggest problems we have is visa overstays.
And I have seen estimates that up to 40 percent of the illegal
immigrants in the country enter the country legally and did not
leave before their visas expired.
What kind of figures do you have about visa overstays? And
what plans do you have to track down those who overstay their
visas, as well as whether we should have some type of exit
check when people leave the country?
Ms. Napolitano. Let me break that into two parts. On the
visa overstays, based on numbers from U.S.-VISIT, we could have
has as many as 1.6 million. So last year, I directed that we
had to go back, we had to identify those visa overstays, if
they were indeed overstays, and evaluate their status and make
referrals to ICE.
We found in that evaluation that half of those were not--
they actually had left the country, and we just hadn't matched
the records appropriately.
A number of others actually weren't overstays. They had
changed their status.
But we have made referrals to ICE. We have done background
checks on all of them, against law enforcement and national
security databases, the whole universe, and we are current now.
With respect to an exit system, we have given the Congress,
in May, our plan on how we get to a biometric exit system for
the country. We begin with what we call enhanced biographic,
using data that we previously didn't have all in one place that
you could easily search. But we have given that plan, and our
intent is to move forward.
Interestingly, one of our new projects is with Canada. We
are going to match with Canada their entry data for land entry.
So even if we don't have a lane or an ability to mark our exit
data at the land border, we will take their entry data and put
it in our system.
Mr. Sensenbrenner. Okay. Thank you.
Now that gets me to the story that appeared yesterday in a
CNS report that said that the TSA approved flight training for
25 illegal aliens at a Boston area flight school that was owned
by another illegal alien, according to a GAO study. The illegal
alien flight school attendees included eight who had entered
the country illegally and 17 who had overstayed their allowed
period of admission to the United States, according to an audit
by the GAO.
And the story goes on to say that there were over 25,000
foreign nationals in the FAA airman registry that were not on
the TSA AFSP database, and, consequently, had not been vetted.
Now, this sounds like a 9/11 deja vu, and I am wondering that
the Department of Homeland Security is going to do to make sure
that everybody who is in a flight school is properly vetted, if
they are a foreign national.
Ms. Napolitano. Yes, I think that report referred to a
several year old matter, which obviously is of concern. But we
took steps in 2010 to make sure that all foreign students who
are in this country applying to fight school are vetted, and
that has been in place. And we intend to confirm that.
We have been doing it for 2 years. I think what the GAO
said, well, you don't have a written thing that says--we agree
you have been doing it, but you need a written MOA. So we are
going to put that together.
Mr. Sensenbrenner. And how long will that take?
Ms. Napolitano. Oh, we will do it very quickly. I think the
flight schools, we want to make sure we are very tight there,
for obvious reasons.
Mr. Sensenbrenner. Okay. The story also said that the GAO
did not provide the full number of individuals who are not
properly vetted. Do you have numbers on how many of these folks
were not properly vetted?
Ms. Napolitano. Well, all I can say is that foreign
students are vetted, and they have been being vetted for
several years. If they apply to the FAA for a license, there is
a re-vetting that goes on. And then the FAA database is
routinely pinged against our national security and criminal
databases.
Mr. Sensenbrenner. Okay, thank you very much.
I yield back the balance of my time.
Mr. Smith. Thank you, Mr. Sensenbrenner.
The gentleman from New York, Mr. Nadler, is recognized.
Mr. Nadler. Thank you.
Madam Secretary, 5 years ago, Congress passed the 9/11
Commission Implementation bill, which mandated that, by this
month, all maritime cargo containers must be scanned before
they are loaded onto ships bound for the United States.
When we wrote the law, we recognized that 100 percent
scanning would be difficult to achieve overnight, which is why
we gave DHS 5 years to comply and allowed for extensions of the
deadline in certain cases. We assumed that 100 percent scanning
would be phased in, and that the department would make a good-
faith effort to try to comply with the law.
Unfortunately, DHS just recently granted itself a 2-year
extension for all ports, citing obstacles that, from what we
can tell, the department never even tried to overcome. Your
letter to Congress explaining the extension repeats a lot of
the same objections we heard 5 years ago, which Congress
rejected at that time.
You have repeatedly said that you prefer a layered approach
in scanning 100 percent of high-risk cargo. I don't think
anybody would have a problem with that, as long as the
department's efforts don't stop with the high-risk cargo.
Checking just the cargo you think is high risk is inadequate.
Scanning 100 percent of all cargo should be the ultimate goal.
The department takes a 100 percent scanning approach at
airports. If we pat down and scan grandmothers and 4-year-olds,
because we must check 100 percent at airports, why shouldn't
the same principle hold true for maritime containers, which, as
many security experts have noted, could more easily contain
nuclear weapons?
That is the law, and that is what you should be working to
achieve. I am concerned that DHS simply decided it did not
agree with the law and has never made any good faith effort to
resolve the potential challenges.
DHS has justified extending the deadline for 100 percent
scanning by citing technological and operational barriers. Yet
there are port operators and security companies that want to
work with the department on implementing the law and that tell
us that the department won't even talk to them.
DHS claims the cost of implementing the mandate is $16
billion, but that assumes that the Government would pay to
acquire, maintain, and operate the equipment when, in fact,
there is nothing in the law that says that cost has to be borne
by taxpayers.
The cost per container, and a container contains an average
of $66,000 worth of goods, has been estimated at $10 to $20 per
container, which is a trivial cost. We all pay a $5 passenger
security fee for airline tickets.
So my questions are, why does DHS continue to resist even
trying to comply with the law and to achieve the scanning that
the law requires? And will you commit to work with us in good
faith in moving forward to make progress toward the mandate
that Congress passed into law 5 years ago of scanning 100
percent of cargo containers before they are put onto ships
bound for American ports?
Ms. Napolitano. Representative, in my view, we have made a
good faith effort to comply with the law. We have conducted
pilot projects abroad. We have met with commercial carriers. We
have met with foreign governments who would have to give us the
ability to install things abroad.
There has been extensive research done on this, and it was
done by us, and it was done by my predecessor, but we did it
independently.
We both came to the same conclusion, that the goal is the
right goal. How we get there----
Mr. Nadler. The goal of 100 percent scanning is the right
goal?
Ms. Napolitano. The goal of safe delivery of containers
into U.S. ports is----
Mr. Nadler. Excuse me. Congress decided that a layered high
risk--a layered approach of inspecting only high-risk cargo,
and, for that matter, inspecting even all of it once it is
here, was not sufficient. That is a decision that Congress
made. It is the law. It is not up to the department to change
that view.
Ms. Napolitano. Well, Congressman, we have a very extensive
program, including not just phased in but the container
security initiative, the global supply chain initiative and
others.
Mr. Nadler. All of which Congress knew about and decided
was not sufficient. And Congress decided, and the President
signed into law, a law that says you must implement 100 percent
scanning as quickly as practicable within 5 years.
And yet you have decided or the department decided that
that is not practical, which is not your decision. That is
Congress' decision. And you are making no attempt, and you have
made no real attempt, as far as we can tell, to implement the
law.
Ms. Napolitano. Well, Congressman, you and I are just going
to have to disagree on that. But furthermore, we continue to
improve efforts to inspect containers, to have trusted
shippers, to have trusted----
Mr. Nadler. But isn't it true that under 4 percent of
containers are now inspected before they get here?
Ms. Napolitano. Say that again, please?
Mr. Nadler. Isn't it true, I forget whether it is 2 percent
or 4 percent of containers are inspected before they get there?
Ms. Napolitano. It probably depends on the particular port.
Mr. Nadler. But, nationally, it is under 4 percent?
Ms. Napolitano. Again, I can't give you that number.
Mr. Nadler. Well, my information is that it is under 4
percent, and that leaves it 96 percent short.
Mr. Smith. The gentleman's time has expired. Thank you, Mr.
Nadler.
The gentleman from California, Mr. Gallegly, is recognized.
Mr. Gallegly. Thank you very much, Mr. Chairman.
And welcome, Madam Secretary.
This is a very important hearing. It is been an issue I
have been involved with for 25 years here in the Congress, and
it never seems to get any easier.
I would like to make a unanimous consent request that,
because of the amount of time that we have here this morning, I
know that we have the opportunity to submit questions. My
unanimous consent would be that the questions that I submit to
the Secretary be responded to, hopefully within a period of 30
days, and that I would have, under unanimous consent, the
opportunity to, for the record, have a response to the
questions that were asked, that were responded back to by the
Secretary.
Mr. Smith. Without objection.
Mr. Watt. Mr. Chairman, I reserve the right to object.
Mr. Smith. The gentleman from North Carolina.
Mr. Watt. Can the gentleman explain what he is requesting?
Mr. Gallegly. Well, I appreciate the opportunity to respond
to my good friend from North Carolina.
I don't intend to ask any trick questions. I am not asking
for questions. And, for the record, you will find that the
questions will not be something that requires a great deal of
research or whatever.
It is really more on policy and trying to understand the
policy on some of these issues, and I would like to--sometimes
we get responses that really aren't complete. And I would just
like to say, in my opinion, I accept or disagree on it, just
for the record.
Mr. Watt. Mr. Chairman, I have some serious reservations
about what the gentleman is proposing.
First of all, I assume he is proposing a set of rules for
himself that does not apply to all other Members. His
intentions may be absolutely good, but I don't have the same
level of confidence in all of the other Members having the same
set of intentions, first of all.
Second, it seems to me that each of us has the opportunity
to have dialogue with the Secretary and members of the
Administration by calling them, having dialogue with them on
their own.
And it seems to me, to set up this procedure, which is
inconsistent with the Committee Rules, is something that is
unnecessary.
I am happy to listen to the gentleman, but I am trying to
keep from objecting, but----
Mr. Gallegly. Well, I appreciate the gentleman's comments.
And I certainly don't disagree with your statement about the
Committee as a whole and me individually. I can completely
accept that. I appreciate your kind remarks.
Mr. Watt. I appreciate the gentleman acknowledging what I
said.
Mr. Gallegly. The issue here is that I don't intend this to
be a precedent. This is not a special thing. That is why we
have unanimous consent policy here, on the floor, wherever.
And I have never asked for this before. We have a very
limited amount of time. There is a tremendous amount on the
agenda here. And I would just like to ask some simple,
straightforward issues, particularly having to do with criminal
immigrants, but not limited to, and have an opportunity to
just, for the record, respond to it.
It would be totally consistent with everything that we are
doing here, only giving the Secretary an opportunity to have a
little time to put these things together. And that is the whole
purpose of having this hearing.
Mr. Smith. We have had a good discussion on this subject.
Does the gentleman from North Carolina object to the
unanimous consent request?
Mr. Watt. Let me continue to reserve, first, just to be
clear on why I am intending to object, because, I mean, I think
all of us are frustrated by the 5-minute rule. We are all
frustrated by the short time that the record is kept open for
responses from the Administration.
A better route to cover that, from my opinion, Mr.
Chairman, would be to extend the time for us to have this kind
of back and forth from the shorter period that we have been
having it to a longer period, so that people can go back and
forth. But I think I am inclined to object to----
Mr. Gallegly. Mr. Chairman, may I respond?
I think that everybody on this Committee, particularly
those like my good friend Mel Watt, Bobby Scott, and others,
over the 25 years, some of us 20 years that we have served on
this Committee, as it relates to the amount of time that
Members have taken respectively, that the portion that I have
taken in relation to my good friend Mr. Watt and others is not
even a tiny blip on the radar screen.
Mr. Watt. And for that reason, I am having real trouble
objecting to the gentleman, because I know his intentions are
good. But I really think we would be setting a bad precedent,
if we did this.
And for that reason, I must object, Mr. Chairman.
Mr. Smith. Okay. The gentleman from California is
recognized for 5 minutes to ask questions.
Mr. Gallegly. Thank you very much. And while I understand
Mr. Watt's objection, I am disappointed. But life will go on.
My questions, however, will probably be a little more
complex. After the hearing, I will submit some questions.
Madam Secretary, does the DHS plan to give authorization to
all the people who are exempt from the deportation under--the
exempt deportation under the executive order of June 15th? And
further, approximately how many illegal immigrations as a
result of that will receive work permits?
Ms. Napolitano. Clarification, there is no executive order,
per se. This is a memorandum from myself, as the Secretary, to
the component heads of the Department of Homeland Security,
setting out the deferred action program.
The answer is yes, they will be able to apply for work
authorization.
Mr. Gallegly. Okay, and again, we keep saying we don't want
to talk about amnesty or whatever, but at least on a temporary
basis this is a de facto amnesty on a temporary basis. My
interpretation. We are all entitled to that. If you are allowed
to stay when you are here illegally, you get to stay.
Now, how many illegals would be given work permits?
Ms. Napolitano. Well, again, they can apply for work
authorization. They are going to have to meet the standards for
being eligible for work authorization, but the linkage between
deferred action and work authorization application goes back to
the 1980's, that is a long-standing----
Mr. Gallegly. Whatever the requirements are, is it going to
be two or three people or 200,000 or 300,000 people?
You know, we have 300 or 400 people out of work in the
country now.*
---------------------------------------------------------------------------
*Mr. Gallegly amended this statement to ``13 or 14 million people
out of work.''
---------------------------------------------------------------------------
Ms. Napolitano. Yes, Congressman, and there are--if I might
back up a moment, because this was an issue that I thought
about deeply before I wrote my memorandum, because jobs for
Americans are very important.
My conclusion was, and we probably differ on this, but my
conclusion was there are lots of different ways to stimulate
job creation. Some of them are before the Congress now, but we
shouldn't balance the American economy on the backs of children
who were brought here mostly----
Mr. Gallegly. Madam Secretary, with all due respect,
because of the time and with the help of my good friend, Mr.
Watt, I really would like to have some succinct answers, just
out of respect for time.
How many people as a result of this that are illegal in
this country will be able to work in this country while we have
14 million Americans citizens that are without work?
Do you have just an approximate number?
Ms. Napolitano. I think, Congressman, I try to keep my
answers succinct and I think----
Mr. Gallegly. Just a number would be fine.
Ms. Napolitano. I can tell you there is no real estimate. I
have seen----
Mr. Gallegly. Could be a million?
Ms. Napolitano. We don't know.
Mr. Gallegly. Okay, you have answered my question.
Is it true that work site enforcement, we talk about
border, border, border, but we don't talk about the 12, 14, 16,
18, 22 million people that are here illegally already in the
country. Is it true that work site enforcement is down 70
percent over the past 3 years?
Ms. Napolitano. Well, that answer is partially true. If I
might explain, it is down from like 5,000 to 1,500.
In juxtaposition, we have been able to remove 100,000 more
felons from the country than we were before, and the number of
I-9 audits, civil sanctions, debarments is up.
Mr. Gallegly. Well, if you had increased the number of
worksite enforcements, or if you had have left it, instead of
reducing it 70 percent, I would assume that that exponentially
would even be a better situation.
Ms. Napolitano. Well, even if we had not made any
adjustments for our priorities for criminals, border crossers,
et cetera, you are still talking about a maximum of 5,000 cases
in the past. Better trade off to say go after the employers
themselves, through I-9s and other audits, and then go after
the criminal.
Mr. Gallegly. I couldn't agree with you more about going
after employers.
Two quick questions. This is a yes or no. Is it true that
ICE agents are now instructed not to detain or remove illegals
during a work site enforcement action? Yes or no, please.
Ms. Napolitano. It doesn't permit a yes or no answer. The
answer is, it depends.
Mr. Gallegly. Okay, you have answered my question.
Getting back to Mr. Sensenbrenner's question having to do
with visas and visa overstays, we, I think, accept the fact
that a large percentage of people that illegally come to this
country, maybe 40 percent, never cross the southern border. In
fact, the people that were the perpetrators of 9/11 were visa
overstays.
Now, having said that, to date, DHS has established visa
security units at 19 locations with a presence in only 15
countries. However, ICE has identified 50 high-risk posts.
Why then does the Administration's proposed budget reduce
funding for the visa security program for FY 2012?
Ms. Napolitano. Yes, difficult choices had to be made,
given the constraints of the Budget Control Act.
We have other things that we can do to make sure that visa
applicants are vetted against our criminal and national
security databases. So while it is nice to have visa security
program officers in different places, it is not something that
is essential to the national security.
Mr. Gallegly. Thank you very much.
I see my time has expired, Mr. Chairman.
And I still like you, Mel.
Mr. Smith. Thank you, Mr. Gallegly.
The gentleman from Virginia, Mr. Scott, is recognized.
Mr. Scott. Thank you, Mr. Chairman.
Madam Secretary, if the gentleman from California has
follow-up questions with your agencies, do you anticipate any
difficulty that he or any other Member might have in getting
appropriate responses and clarifications to those follow-up
questions?
Ms. Napolitano. We endeavor to do our best to respond and
to do so in a timely manner.
Mr. Scott. Thank you.
You have talked about the student visas, the student----
Ms. Napolitano. Deferred action.
Mr. Scott. Deferred action. August 15th, you indicated
would be the application date. When would they expect to get
some kind of documentation, and what would that documentation
allow them to do?
Ms. Napolitano. We anticipate that we will have guidance by
the 1st of August. What we anticipate is, within a short period
of after they send in their applications, they will receive an
acknowledgement that their application is complete, and is
ready to be processed.
They will get a number, and the number will enable them to
track their matter as it goes through the adjudicatory process.
Mr. Scott. Well, will they be able to get on an airplane?
Ms. Napolitano. Yes.
Mr. Scott. With that or with the subsequent documentation?
Ms. Napolitano. They will be input into the system. And the
idea then is that deportation or any removal action would be
stayed until we complete the adjudicatory process.
Mr. Scott. Thank you.
Can you give us the status of your department
implementation to PREA, the Prison Rape Elimination Act, and
whether or not your regulations will be the same as those in
the Department of Justice?
Ms. Napolitano. They will meet PREA standards. They will
not be identical because our facilities are different.
But we have already issued new standards for prison rape
elimination, including a zero tolerance policy. We are
following up very strongly on all allegations that are made,
and we are going to be issuing guidelines or standards that
meet the PREA. But they will be different than DOJ, because our
facilities are different.
Mr. Scott. Following up the comments from the gentleman
from New York on port security, I understand that there is
technology where the container trucks can drive through a
scanner and essentially get scanned while the truck is going
15, 20 or more miles per hour. Is that----
Ms. Napolitano. No, the current truck scanners that we use,
say, for example, at the border where we have thousands of
trucks cross every day, the trucks that go through, I think it
is 3 miles per hour.
Mr. Scott. Is there any reason why that can't be universal?
Why you can't do 100 percent?
Ms. Napolitano. One hundred percent of what? Trucks or
containers or?
Mr. Scott. Container trucks leaving a port.
Ms. Napolitano. Representative, I think that requires a
longer answer than time permits. I will try to be succinct. We
will get you some material on that, but the fact of the matter
is that seaborne containers go through a whole different
layered process of security that is different than land-borne
trucks.
Mr. Scott. What portion of containers are scanned in
foreign ports before they leave, coming to America?
Ms. Napolitano. It depends on the port, but, again, we use
a risk targeting system to identify high-risk cargo.
And high-risk cargo, let me discuss that for a moment,
because what it means is that we have a process for certifying
trusted shippers, trusted forwarders, others that are moving
containers all the time to the United States and doing some
random checking there.
And then when we have containers that don't meet those
kinds of standards, what we do to make sure that those
containers are safe before they enter a U.S. port.
Mr. Scott. I guess the final question I have in the few
seconds I have left, can you talk about the agency's use of the
Federal Prison Industry program?
Ms. Napolitano. We use FPI under contract. I believe we use
them here in D.C.
Mr. Scott. What do you mean by ``use''?
Ms. Napolitano. I believe we have a contract with them. Is
there a particular issue that I can help you with?
Mr. Scott. Yes, Federal Prison Industry is a program that
we want to maximize the use of, because you have prisoners
there getting job training, using the Prison Industry program
for management purposes, encouraging them to be more likely to
get a job when they get out.
A lot of agencies, because of other complications, that
Prison Industry program is not being fully utilized, and we
wanted to make sure that the Department of Homeland Security
was fully using the program, so that we get the best benefit.
The utilization, the number of people in prison under the
program has been declining over the past few years.
Ms. Napolitano. My understanding is that we are, but I will
be happy to verify that for you.
Mr. Smith. Okay, thank you, Mr. Scott.
The gentleman from Virginia, Mr. Goodlatte, is recognized.
Mr. Goodlatte. Thank you, Mr. Chairman.
Madam Secretary, you have made several references to
responding to requests from this Committee, including requests
in writing in a timely fashion. You last appeared before this
Committee on October 26 of last year. And following that
hearing, as required by the Rules of the Committee, a number of
questions were submitted to the Committee and transmitted to
you in a timely fashion, and the answers to those questions
rolled in at 11:26 p.m. last night.
Do you regard that 9-month time period to answer questions
as being timely?
Ms. Napolitano. Representative, obviously not, although it
is before this hearing.
Mr. Goodlatte. What good is that to us----
Ms. Napolitano. If I can----
Mr. Goodlatte. 11:26 p.m. last night. That is supposed to
help the Members of the Committee prepare for this hearing?
Ms. Napolitano. If I might, Representative. I would need to
go back. Sometimes we are asked--we have responded and
Committee Members don't, for whatever reason, don't get the
response. And as they prepare for hearings, their staff asks us
for new copies of that. I would need to look into that.
In addition, I would like to remind the Committee, we try
to be timely. But we have well over 100 Committees and
Subcommittees that are submitting questions to us.
Mr. Goodlatte. And your statement today that you answered
these in a timely fashion is not rebutted by your failure to
answer the questions until 9 months after the last hearing----
Ms. Napolitano. Again----
Mr. Goodlatte. Just a few hours before this hearing?
Ms. Napolitano. Again, Representative----
Mr. Goodlatte. Let me go on to a question.
Ms. Napolitano. Well, you made a statement, I think----
Mr. Goodlatte. No, Madam Secretary.
Ms. Napolitano. Mr. Chairman?
Mr. Goodlatte. We have asked and----
Ms. Napolitano. Mr. Chairman?
Mr. Goodlatte [continuing]. Answered that question.
Ms. Napolitano. Mr. Chairman, may I get an opportunity to
answer the question?
Mr. Goodlatte. You have already answered it once.
Mr. Conyers. Can we have regular order, Chairman?
Mr. Goodlatte. I would definitely like regular order.
Ms. Napolitano. Representative, I just wanted to clear up--
what I said was that we often are in the situation where we are
resending answers to questions that were sent well before as
staff prepare for hearings. If that didn't happen here----
Mr. Goodlatte. That is not the case here, Madam Secretary.
Ms. Napolitano. Well, if that is what you want us to look
into, I would be happy to look into it.
Mr. Goodlatte. We want you to answer the questions in a
timely manner. That is what we want.
Ms. Napolitano. Fair enough.
Mr. Goodlatte. In your testimony, you state that homeland
security begins with hometown security, and that you have
worked to get information, tools, and resources into the hands
of State, local, tribal, and territorial officials. How does
canceling your 287(g) agreements in Arizona, and refusing to
enter into them in my State of Virginia, aid hometown security?
When you take that resource away from local law enforcement,
can you really claim that you are working to help hometown
security?
Ms. Napolitano. Absolutely. The 287(g) agreements that are
task force, not in the jails, which are very productive, but
the task forces, the ones your refer to, are remarkably
unproductive and very expensive.
Of the six of the seven Arizona agreements we had on the
task forces, they had produced zero removals in 2 years. The
only one that was doing anything was the Department of Public
Safety, and we already have a task force with them. They were
fine with our cancellation.
It costs us per removal on a 287(g) almost 10 times as much
through Secure Communities or through the 287(g) jail model. We
are moving to the more efficient models.
Mr. Goodlatte. I would like to know why it is that you will
not utilize local law enforcement to apprehend individuals that
are illegally in the United States and then promptly move to
remove them from his country? That is not what is happening in
Virginia, I can assure you. It is absolutely not what is
happening.
Ms. Napolitano. If I might, Representative, one of the
things we have done to replace those ineffective 287(g) task
forces is the great expansion of Secure Communities in the
jails themselves, the program where we refer fingerprints both
to the criminal database and to the immigration database.
And you will see that our ability to apprehend and remove
criminals from the country has actually gone up dramatically
because of that.
Mr. Goodlatte. Madam Secretary, does this mean, your
criticism of 287(g) and your cost analysis, does this mean that
you will remove from the Department of Homeland Security's
website the section that refers to 287(g) success stories?
Ms. Napolitano. You know there may be some success stories,
but when you look at the numbers, they----
Mr. Goodlatte. Why are you touting them if they are success
stories in a program that you think is otherwise flawed?
Ms. Napolitano. I would say I would tell the people who are
working the website, take it down.
Mr. Goodlatte. Yes, you----
Ms. Napolitano. It doesn't work. The program is expensive,
and it doesn't work the way Congress intended.
Mr. Goodlatte. According to the GAO, over time, Federal
surveys have consistently found that the Department of Homeland
Security employees are less satisfied with their jobs than the
government-wide average. Out of 240 components ranked by the
Federal Employee Viewpoint Survey throughout the Government,
ICE ranked 222; FEMA ranked 231; TSA ranked 232; and a category
collectively called ``All other components'' ranked 224.
You have a serious morale problem that has only gotten
worse since you have taken over. I think you would agree that
low morale in these positions has the potential to impact how
effectively these public servants do their job.
What is the cause of this morale problem? Are there any
morale problems due to the policies implemented by this
Administration that prevent agents from doing their jobs? And
what are you doing to address these serious morale problems?
Ms. Napolitano. Yes, the morale issue is one that I am
quite concerned about. We want our employees--good morale, they
are effective, they are well trained. We have looked into those
numbers.
We have determined that one of the real sources was that
our first line or mid-level supervisors were promoted without
training on how to actually be a supervisor. That caused a lot
of discontent.
There are other reasons as well. I meet regularly now,
Representative, with our component heads and have directed
them, in turn, to take all action necessary to do what we must
to try to bring that morale up.
We also brought in some experts from OPM to help us, and
other places. And we have looked at other departments that were
able to go from low to high. And techniques or things that they
did from a management standpoint, we intend to deploy those as
well.
Mr. Goodlatte. Mr. Chairman, my time is expired. I do have
additional questions, which I will submit to the Chairman in
writing, and I am sure that he will submit them to you.
And, Madam Secretary, I hope you will answer them in a real
timely fashion, not 9 months after we submitted them, like the
last time. Thank you.
Ms. Napolitano. I understand your point.
Mr. Smith. Thank you, Mr. Goodlatte.
Madam Secretary, what do you consider to be timely? Thirty
days? Two weeks?
Ms. Napolitano. Some it is 30. Some it is 60. It depends on
the question. Some requires multiple departments. Some requires
new sorts of information that we haven't collected before.
Mr. Smith. So 60 at the outset, if multiple departments
were to be involved in the response?
Ms. Napolitano. I would commit that we will aim to 60, yes.
Mr. Smith. And shorter time for----
Ms. Napolitano. And if we have to have more, we will tell
you why.
Mr. Smith. Okay, thank you, Madam Secretary.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. Watt. Thank you, Mr. Chairman.
And I think this last exchange may illustrate the concern
that I was expressing about the gentleman from California's
unanimous consent request. I was feeling really bad about it
until we got into this exchange, and the responses of the
Secretary make it clear that putting the Administration or any
of these departments in a 30-day straitjacket, as the unanimous
consent request would have done, is just not viable, although I
fully support the Administration responding to our oversight
and responding to legitimate questions that are raised.
I also want to express my gratitude for your cutting back
on the 287(g) program. I think it was the least successful,
biggest abomination of any program that I have observed in our
local communities, to turn local law enforcement away from
their primary responsibilities into, many cases, just absolute
witch hunts, doing something that is the primary responsibility
of the Federal Government.
In fact, it so biased me against ICE, it is hard for me to
say something nice about it. So now I have to go and say
something nice about it.
Ms. Napolitano. Can I write it down?
Mr. Watt. Yes. Actually, I think the efforts that you have
made in the area that Mr. Goodlatte and I are involved in, in
the intellectual property area, of dealing with counterfeit
goods and things online, I think while there have been some
problems, obviously, I think ICE has done a commendable job.
And to acknowledge the fact that there can be successes and
failures at the same time, I have already acknowledged some of
the failures, but I will just point out the success in North
Carolina that led to arrests and charges of trafficking in
counterfeit drugs, specifically Cialis and Viagra pills that
were circulating that were counterfeit in North Carolina. And
ICE did an exceptionally good job.
Now, having said that, without even asking a question, let
me say that I also applaud the Administration's decision
regarding the young people who are here under the Dream Act
category, so to speak. If anybody, regardless of what your
position is on immigration, if anybody deserves to be treated
as if they were not criminals it is kids who were brought here
at 1 month, 2 years, have no connection to the country from
which they were brought, had no responsibility for bringing
themselves into this country.
Their parents, if you consider them irresponsible or
renegades, we certainly shouldn't pass that along to their
children. The only place that they know as home has been the
United States of America. If anybody deserves the benefit of
this policy, it is these young people.
And I don't know how anybody can argue with that. I just
hope you get this program implemented and all the rules in
place quickly, so that these kids can get into a normal
pattern.
They have been educated here. The notion that we would
invest all of this money in them and then send them back to a
country that they had no connection to just seems to me to be
absolute folly. And so I want to publicly applaud the
Administration and you, Madam Secretary, for this change in
policy.
And I hope that at some point we will get around to setting
up some additional rational immigration policies to set up a
comprehensive immigration policy in our country, to get them
out of this temporary status that you have been able to justify
for them.
With that, Mr. Chairman, maybe I will submit some questions
and give them 30 to 60 to 90 days to respond also.
And I do want to encourage you to respond to Mr. Goodlatte
and my friend from California there, their questions, as timely
as you can.
Mr. Chairman, I yield back.
Mr. Smith. Thank you, Mr. Watt.
The gentleman from Ohio, Mr. Chabot, is recognized for his
questions.
Mr. Chabot. I thank the Chairman.
And, Madam Secretary, just a few questions. I am trying to
see around Mr. Chaffetz's head here, but it is all right.
I would like to ask about how our Customs and Border Patrol
is handling counterfeit products coming into our country.
Intellectual property in the United States is responsible for
spurring new industry and developing useful technology and
creating jobs. And I know we are all focused on how we can get
more jobs in this country.
However, many bad actors are replicating trademarked
American goods and then shipping them back to the United States
for sale here. These fake products have a negative impact on
the economy and, in fact, can be dangerous, oftentimes, to the
health and safety of the American people.
The Customs and Border Patrol agents, they generally make
the first contact when these shipments are coming into the
country, and it is critical that your officers are able to
communicate valuable information with the rights holders, the
actual company here that would be producing legitimate
products, not the fake products that are coming in.
Those are the best individuals who are suited to
authenticate the products, to make that they are actually real
or that they are fake.
And that is why Congressman Poe, Ted Poe from Texas, and I
have introduced the Foreign Counterfeit Protection Act, which
is H.R. 4216.
And I was wondering, perhaps your staff may have brought
that to your attention, or if you are at all familiar with the
legislation, and, if so, whether we can count on your support
for it.
Ms. Napolitano. Well, I am not directly familiar with the
legislation, but I am familiar with the issue, which is when we
find counterfeit products, there had been, this is what I have
been told, a pre-existing legal opinion that we were barred
from telling the actual holder of the trademark about the
infringing product.
My understanding is also that that has been revised and
changed, so that that barrier no longer exists.
Mr. Chabot. Yes, and that is the very issue, and it has
been improved somewhat. There are still some problems with it.
We would like to work with you on that, because, as I said, it
is very critical to creating jobs and protecting the rights of
the people here that are actually producing the legitimate
products.
I was encouraged to see that your agency issued an interim
regulation, that is probably what you were referring to, in
April, to allow your officers to share information about
suspected counterfeits to the trademark owner to help CBP
determine if the product is, in fact, counterfeit or not.
However, I am concerned about the interim. it has a 7-day
waiting period, whereby importers are given the opportunity to
demonstrate that the merchandise does not bear a counterfeit
mark. And if the impostor demonstrates this, then there can be
no meaningful disclosure to the trademark owner and the product
will not be denied entry.
While I understand that your agency came up with this
procedure as a way to protect the interests of grey market
importers, I am concerned that, thus far, your agency has
unwittingly created potentially a giant loophole for the most
unscrupulous of counterfeiters. What makes you think that a
person willing and able to create, for example, a fake product
that looks real will not use the 7-day period to produce phony
documents and fake certificates in an attempt to show that the
counterfeits are genuine?
And CBP might not be able to seek help from one source who
knows for sure whether the product or documents are real and
that is the owner of the trademark.
This new procedure, whereby the deference is to the
importer and not the trademark holder, invites, I think,
potentially, that type of deception creating a loophole, as I
indicated, to actually usher counterfeits into the country. So
we would certainly appreciate your looking into that.
Ms. Napolitano. Yes, I think that is a very fair point, and
I will be happy to not only look at it, but work with you on
this problem.
Mr. Chabot. Okay. And, then, finally, Madam Secretary, I
would like to turn now to another recent issue with
counterfeits coming across the border.
In the latest attempt to essentially rip off U.S.
trademarks, it appears that certain foreign criminals have
found a new approach, that of counterfeit coupons. Last week,
there was a police raid in Arizona where police confiscated $2
million worth of assets in a home-based business, which was
responsible for producing and distributing counterfeit coupons
on websites, affecting more than 40 U.S. consumer product
manufacturers, including a company based in my district, that
is Proctor & Gamble.
And I will wrap it up quickly here, because I know I am
almost out of time.
The alleged leader of the operation, Robin Ramirez, is
accused of bringing in these coupons from overseas in large
quantities and selling them on her website for 50 percent of
the face value. Police said the scope of this investigation has
an economic impact in the hundreds of millions of dollars in
losses, and I would just ask you to please look into that
matter and make sure your agency is doing everything possible
to, again, protect our businesses here so that we can actually
create jobs.
Ms. Napolitano. Yes, I am happy to do so.
Mr. Chabot. Thank you very much.
Mr. Smith. Thank you, Mr. Chabot.
Does the gentleman from Virginia have a unanimous consent
request?
Mr. Goodlatte. Yes, Mr. Chairman. I would ask that the
printout that we have here from the department's website, under
the ICE section entitled ``287(g) success stories,'' which has
printed out six pages of very, very small print, scores of
success stories with regard to the 287(g) program, be made a
part of the record.
Mr. Smith. Without objection.
[The information referred to follows:]

__________
Mr. Smith. Thank you, Mr. Goodlatte.
The gentlewoman from California, Ms. Lofgren, is
recognized.
Ms. Lofgren. Thank you, Mr. Chairman. Before asking any
questions, I would like to ask unanimous consent to put some
material in the record.
Some have questioned the Secretary's legal authority to set
immigration enforcement priorities and exercise prosecutorial
discretion on a case-by-case basis. And so I would like to
enter into the record the Supreme Court's recent decision that
explains immigration officials have broad discretion, including
whether it makes sense to pursue removal at all; a memorandum
by the Congressional Research Service analyzing the Secretary's
memorandum; a May 28, 2012, letter from 100 law professors to
our President addressing the executive's authority to grant
administrative relief; a November 4, 1999, bipartisan letter
establishing prosecutorial discretion as well-established and
well-grounded in case law; and a November 17, 2000, memorandum
by then INS Commissioner Doris Meissner laying out the
authority for exercising prosecutorial discretion.
Mr. Smith. Okay, without objection.*
---------------------------------------------------------------------------
*The submissions referred to are inserted in the Appendix. See
pages 80 to 209.
---------------------------------------------------------------------------
Ms. Lofgren. I would also ask unanimous consent to put in
the record statements from the faith community, including the
Evangelical Immigration Table, the U.S. Catholic Conference of
Bishops, the Evangelical Lutheran Church in America, and the
Hebrew Immigrant Aid Society, in support of the President's
Dream Act announcement.
Mr. Smith. Okay, without objection.**
---------------------------------------------------------------------------
**The submissions referred to are inserted in the Appendix. See
pages 210 to 228.
---------------------------------------------------------------------------
Ms. Lofgren. As well as letters from labor leaders in
support of the President's Dream Act announcement.
Mr. Smith. Okay, without objection.***
---------------------------------------------------------------------------
***The submissions referred to are inserted in the Appendix. See
pages 229 to 245.
---------------------------------------------------------------------------
Mr. Smith. The gentlewoman is recognized for 5 minutes for
questions.
Ms. Lofgren. Thank you, Mr. Chairman.
I am mindful that we are joined today in this hearing by
Eliel Acosta, who was brought to the United States, by her
parents to the United States, when she was 3 years old; Hareth
Andrade, who was only 8 when he was brought to the United
States; Excy Cuardado, who was only 3 when he was brought to
the United States; Karen Vallejos, who was just 5 years old
when she brought to the United States.
These are wonderful young people who have achieved great
things in their education. Every time I go to speak to a
school, whether it is people getting their Ph.D. in Physics or
whether it is a law school or whether it is a high school, some
young person will come up and say, ``I am a Dream Act kid.''
And of all of the people who deserve our consideration, it
is these young people. So I would like to thank you, Secretary
Napolitano, for the action that you have taken to allow these
young people I think of as de facto Americans--I mean, this is
their country, but the papers aren't in order--for taking the
step that you did that will allow them to live normal lives
until we get our act together here in Congress. Thank you very
much for that.
Ms. Napolitano. Thank you, Representative.
Ms. Lofgren. I would like to note that, in the process of
getting our act together, the House did, in fact, pass the
Dream Act in December of 2010, and it got 55 ``yes'' votes in
the Senate. But because of their crazy rules, we couldn't get
60 votes to pass it.
So, hopefully, we will have an opportunity, once again, to
pass that Dream Act, and also to reform the law top-to-bottom.
It does need reform in so many different ways.
I have a concern that I would like to raise about the
implementation of the applications, and it is not about your
department, it is about people who would prey on young people.
Every time there is announcement, there are unscrupulous
people who will go and try and charge people, notary publics
who will say you need to pay us this or that, and I am hopeful
that the department will take some steps.
I mean, there is no reason why a de facto American who is
an 18-year-old kid on the honor roll needs to go pay some fee
to a lawyer or to a notary public or anybody else to get this
application underway.
Have you thought about some efforts we might make to make
sure that unscrupulous people don't take advantage in this
situation?
Ms. Napolitano. Representative, yes, and the whole issue
of, say, notarios fraud, which has been a perennial problem in
immigration, we are trying to address it in a couple of ways:
outreach, working with different faith-based and advocacy
groups, and with student groups and others. The application
itself is available online. It will be based on existing
application forms. There will be a fee associated with the
application, as I think all of us understand.
Ms. Lofgren. That is fine.
Ms. Napolitano. But we are going to do that, and then I am
going to reach out to the Justice Department themselves to see
if, through the U.S. Attorneys' Office, they can help us in
this regard.
Ms. Lofgren. I am glad to hear that, and I think it is
something that Members themselves can help on in their own
communities.
Now, I wanted to talk a little bit about the history of the
Dream Act, because, for many years, we worked together on this.
And I will never forget the late Paul Gillmor, who was a very
conservative man. There are many things we didn't agree on.
But he called me and described a young man in his little
town in Ohio who was the valedictorian of the high school. He
was the quarterback on the football team. And he went to go get
a document, and it was only then that he was told that he
wasn't born in the United States.
He said, ``Well, I will straighten this out. I will go down
to the Government, and have the Government straighten this
out.'' So he went down the day before Christmas, and they put
him in handcuffs, and the little town was outraged.
And Congressman Gillmor understood. He did a private bill,
but he also understood this issue in a way what was visceral.
And that conservative Republican put his name on the Dream Act
as a cosponsor.
So I am hopeful that as we move forward, we can get the
kind of consensus that we once had on this issue, and that we
are able to do the right thing, not only for these young
people, but for our country, because they are a part of a rich
future for our country.
Thank you, Madam Secretary.
Mr. Smith. Okay. Thank you, Ms. Lofgren.
The gentleman from Virginia, Mr. Forbes, is recognized.
Mr. Forbes. Thank you, Mr. Chairman.
Madam Secretary, thank you for being here. And I think we
all know that there are two issues here. One is whether the
substance of what is being done is appropriate. And the second
one is that, at least up until a short period of time ago, many
of us felt we were still a Nation of laws. And we want to make
sure that we do what we do in a legal manner.
I know it is always dangerous to put too much credence in
the words that our elected officials say, but I want to come
back to something the Chairman said earlier, because this is
what the President said.
He said, with respect to the notion that I can just suspend
deportation through executive order, that is just not the case,
because there are laws on the books that Congress has passed.
And went on and said, there are enough laws on the books by
Congress that are very clear in terms of how we have to enforce
our immigration system, that, for me, through simply an
executive order, to ignore those mandates would not conform
with my appropriate role as President.
That he said on March 28, 2011.
Now my first question for you, so that we can understand,
to your knowledge, were there any laws that changed between
March 28, 2011, and today that would change what the President
said?
Ms. Napolitano. No.
Mr. Forbes. Do you feel that the President was inaccurate
at what he stated on March 28, 2011?
Ms. Napolitano. Well, I think, Representative, I think it
is important to understand what actually occurred here.
Mr. Forbes. No, I am just asking what the President stated
on March 28, 2011, regarding an executive order. Was he correct
in that statement on that date?
Ms. Lofgren. Would the gentleman yield?
Mr. Forbes. I will when I finish my time.
Ms. Napolitano. As a general matter, yes.
Mr. Forbes. So as a general matter, he was correct? No laws
have changed since that time.
Now, I notice that you said that the memorandum that you
issued was not an executive order, per se. I don't know. I am
just harking back to my old law school days and kind of the
bible that we had was Black's Law Dictionary.
And I look at executive order and the definition there. It
says, ``An order issued by or on behalf of the President,
regarding a constitutional provision, law or treaty.''
Was this memorandum that you issued issued on behalf of the
President or under the authority of the President?
Ms. Napolitano. It was under my authority as the Secretary,
setting the priorities for the enforcement of the Nation's
immigration laws in an effort to deal not only with these
compelling cases, but the continued effort to clear the backlog
to deal with the more serious----
Mr. Forbes. Is it your opinion, Madam Secretary, that the
authority that you issued this under as your authority has
greater authority than the President of the United States?
Ms. Napolitano. I think, as Representative Lofgren has put
in the record, there is a lot of authority going far back about
the ability of a prosecutor to set priorities.
Mr. Forbes. That is not my question, though, in all due
respect. And I appreciate prosecutorial discretion when
prosecutors are able to do that on a case-by-case basis.
My question is a very simple one: Do you feel that you have
greater authority than the President of the United States on
this matter?
Ms. Napolitano. Well, this is a case-by-case determination.
This is a case-by-case determination designed very carefully to
be seated clearly within prosecutorial discretion precedents.
It is not----
Mr. Forbes. Madam Secretary, the President announced this
policy from the Rose Garden. And I know you are saying that
this was issued by you. But it was the President that announced
the policy as President of the United States.
Black's Law Dictionary says very clearly, if an order is
issued by or on behalf of the President regarding a
constitutional provision, law, or treaty.
Are you saying this was issued not in conjunction with the
President of the United States? You didn't have consultation
with him about issuing this?
Ms. Napolitano. This decision came from the Department of
Homeland Security. The President, obviously, approved of the
decision, which is what he announced at the Rose Garden. But
the decision had already been announced that morning by myself.
Mr. Forbes. But the President announced the policy. The
President is the one who appointed you, is that not correct?
Ms. Napolitano. That is true.
Mr. Forbes. And you take your authority directly from the
President and the appointment he made; is that not correct?
Ms. Napolitano. And the Constitution and laws of the United
States, that is true.
Mr. Forbes. And you hold a constitutionally directed
office. Can you tell me what part of Article 2 endows your
authority?
Ms. Napolitano. I would go to Section 3, which is the
obligation to carry out the laws faithfully, to execute the
laws.
Mr. Forbes. And once again, it is, as I understand it, the
President of the United States, you don't dispute the fact that
he was correct when he said he didn't have authority as
President of the United States to issue an order to do what you
have now issued as Secretary of Homeland Security, but you feel
that you have that authority and that capability to do.
Ms. Napolitano. We are well-seated in the law; that is
correct, Representative.
Mr. Forbes. And again, do you concede that the President
did not have the authority to issue the order that you issued;
correct?
Ms. Napolitano. That is not what I said. I said an
executive order from the President was not involved.
Mr. Forbes. But the President didn't have authority--could
not have issued an executive order, according to what you said
and what the President said, correct?
Ms. Napolitano. Could he have waved a magic wand and by
huge category just said, everybody is home-free? No. Can a
prosecutor's office say, on a case-by-case basis, we are going
to defer action? Yes.
Mr. Forbes. Could he have issued an----
Ms. Napolitano. Yes.
Mr. Forbes. Executive order to do what you did?
Ms. Napolitano. Yes.
Mr. Forbes. Mr. Chairman, thank you.
Mr. Smith. Thank you, Mr. Forbes.
The gentlewoman from California, Ms. Waters, is recognized.
Ms. Waters. Thank you very much,
I yield to Ms. Lofgren 30 seconds.
Ms. Lofgren. Thank you.
I just wanted to--the President's statement has been
quoted, but only partially, because the rest of the statement
is: Now what we can do is prioritize enforcement since there
are limited enforcement resources and say we are not going to
go chasing after this young man or anybody else who has been
acting responsibly and would otherwise qualify for legal status
if the Dream Act passed.
So I think that rest of the statement is important.
I thank the gentlelady for yielding.
Ms. Waters. Thank you very much.
Reclaiming my time, first, Madam Secretary, I am pleased
that you are here. And I want to congratulate you. I don't care
who did deferred action, whether it was you or the President. I
am just pleased that it was done. It is the right thing to do.
It is the fair thing to do. And I happily got on the telephone
and called many of my friends to tell them, who were feeling so
at risk having been brought to this country at a very early age
and then finding that they could not participate fully.
So again, thank you, thank you, thank you.
Now, having said that, I want to ask you about the H-1B
visa program. We have a GAO report entitled, ``Reforms Are
Needed to Minimize the Risks and Costs of Current Program.''
You know, there is conflict in opinions, I guess even in the
President's jobs panels about this program.
But I am concerned about what is said in this report. For
example, and I am going to read directly from it: Restricted
agency oversight and statutory changes weaken protections for
U.S. workers. Elements of the H-1B program that could serve as
worker protections such as requirement to pay prevailing wages,
the visas temporary status, and the cap itself, are weakened by
several factors. First, program oversight is fragmented and
restricted.
It goes on to talk secondly about the H-1B program lacks a
legal provision for holding employers accountable to program
requirements when they obtain H-1B workers through a staffing
company.
And it describes these staffing companies.
And thirdly, statutory changes made to the H-1B program
have, in combination and in effect, increased the pool of H-1B
workers beyond the cap and lowered the bar for eligibility.
Here is my concern. You know, I know that we try sometimes
to have all things all ways in this country when we are trying
to help people and companies, et cetera. We have an employment
program in America. We have some serious education problems.
We are told by those who try to protect the program and
expand the program that we have occupations that are
desperately needed to do some of the jobs that are needed,
perhaps in Silicon Valley and some other places. And they have
to look to importation of workers to do that.
But also, some of us maintain that many of these companies
have the kind of campuses that should include more training,
more development. And we want our education system to put more
people in the STEM pipeline and all of that.
So, with these kind of concerns, what can you do to ensure
that the oversight that is needed is done? And those of us here
at this level of Government making public policy, we have to
weigh in on whether or not we want to continue to support,
expand, or what have you.
But what role do you play in this oversight?
Ms. Napolitano. Representative, I think I am not personally
familiar with that GAO report, but I will follow up, and we
will follow up with you on what we have done in response and
pursuant to the recommendations in it.
Ms. Waters. Thank you very much. I look forward to it.
I yield back the balance of my time.
Mr. Smith. Thank you, Ms. Waters.
The gentleman from Iowa, Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman.
And thank you, Madam Secretary, for your testimony here
today. A number of curiosities have arisen, listening to your
responses. And one of them is, did you have discussions with
President Obama with regard to the policy within the June 15
memorandum prior to the issuing that decision?
Ms. Napolitano. I did not.
Mr. King. Or with members of the White House that would
have direct access to the President?
Ms. Napolitano. I informed the White House prior to the
release of the memorandum that that was my intent to do so. But
the internal meetings that we worked on and how we developed
the program started in early May.
Mr. King. Does that mean that your staff had communications
with White House staff with regard to this, and you had a sense
that the President supported this decision?
Ms. Napolitano. Yes, they raised no objection to my intent
to prioritize cases in the fashion that we have.
Mr. King. Were you surprised when you issued the memorandum
that the President had a press conference scheduled within
hours?
Ms. Napolitano. No.
Mr. King. That was coordinated with the DHS and the White
House?
Ms. Napolitano. I don't think it was coordinated, but it is
a major announcement as to how we are prioritizing immigration
enforcement, and it is appropriate for the President to speak
to it.
Mr. King. And you pointed out Article II, Section 3 in the
Constitution, and thought I had that memorized, and I looked it
up, and I think I did. ``He shall take care that the laws be
faithfully executed.'' I believe that is the section you are
referring to when you assert your responsibility under the
Constitution.
Ms. Napolitano. That is one of them, yes. A primary one,
yes.
Mr. King. And if Congress is going to direct--Congress
writes the laws, the President has been clear on that. I think
you agree with the statement the President made, even though it
is uncomfortable to see that contradiction today.
But if Congress is to write a law that directs the
executive branch to take care that the laws be faithfully
executed, how would we write that bill if we wanted those laws
enforced that you have decided now will not be.
Next question will be behind this one.
Ms. Napolitano. Well, I can't speculate as how you would
write that, but I would simply say, based on my history as a
prosecutor, there are lots of laws on the books within the
framework of which prosecutors make----
Mr. King. We understand prosecutorial discretion here.
There have been many discussions on it. When I look through the
reference to prosecutorial discretion on the June 15 memo, I
see it mentioned four times in here.
I see the individual basis mentioned six or seven times. It
looks like almost as if this is written anticipating the
constitutional objection that I assure you I will bring.
There is a separation of powers. And the executive branch
cannot legislate by executive order, by memorandum. I accept
Mr. Forbes' definition of executive order. But we cannot allow
the Article II executive branch legislate by executive order,
we must stand and assert this legislative authority that we
have.
And as I read this memorandum, you say in it, only the
Congress acting through its legislative authority can confer
these rights. But yet you have directed the director of USCIS
to issue work permits for people who fit within four classes.
This isn't an individual directive. It establishes four
classes within it. And it directs USCIS to issue a work permit
that does not exist.
And our visas and work permits are creations of Congress,
not the executive branch.
And I would ask you, will you rescind this before we have
to take this to court?
Ms. Napolitano. Representative, I will not rescind it. It
is right on the law. It is the right policy. It fits within our
prosecutorial priorities. And although it came out of the
Department of Homeland Security, let me say that President is
foursquare behind it, embraces this policy as the right thing
to do.
Mr. King. The President, foursquare in front of the
Constitution, challenged it by myself and many Members of this
Congress, we have to assert this authority. The Founding
Fathers envisioned that each branch of Government would
carefully protect the authority vested within this
Constitution. And when you cross those lines and those bounds,
and there is a whole list of things that have been done by this
President, this one is the most clear.
I accepted the prosecutorial discretion when it dealt with
individuals. I do not when it deals with groups of people that
are created by a memorandum. And I do not when it deals with a
work permit that is ordered to be issued that doesn't exist in
the United States Code. And that is the province of Congress.
So I thank you for being here today, but we will see each
other down the line in litigation.
Mr. Smith. Thank you, Mr. King.
The gentleman from Puerto Rico, Mr. Pierluisi.
Mr. Pierluisi. Thank you, Mr. Chairman.
Welcome, Madam Secretary. Before I address the topic that I
would like to discuss, let me welcome the young Hispanics who
are here with us this morning.
And let me tell you, what you have seen, you have seen
Secretary Napolitano standing firm on the deferred action
policy that the Federal Government is about to implement. That
means that your dreams are very much alive.
And now, Secretary, as you probably expected, I want to
raise the same issue with you this morning that we discussed
the last time you appeared before the Committee, namely the
drug-fueled public safety crisis in Puerto Rico.
First, I want to express my profound gratitude to you and
your team for traveling to Puerto Rico last week in order to
investigate the situation first hand and to meet with Governor
Fortuno and myself. I think our meetings were positive and
productive, and I hope you agree.
On Tuesday, I wrote you a letter, following up on your
visit. In addition to thanking you for your visit, I noted that
your presence in Puerto Rico underscored the Federal
Government's commitment to working with local law enforcement
to enhance and expand our efforts to combat drug trafficking
and related violence on the island.
I said that I was heartened to hear you declare that Puerto
Rico's public safety crisis has your full attention. And that
our motto moving forward will be, let's fix this.
I also expressed agreement with your statement that the
definition of success should be significant and sustained
reduction in the number of homicides committed on the island.
I think we all recognize the need to act with a sense of
urgency in light of the severity of the situation. In my
letter, I strongly endorsed your plan to promptly develop a law
enforcement strategy specifically tailored for Puerto Rico and
the neighboring U.S. Virgin Islands.
I believe this strategy will ensure that our efforts are as
well coordinated and effective as possible and will help to
identify gaps in the current approach that can be filled.
I respectfully ask that this strategy be coordinated with
the Department of Justice since DOJ personnel are working side
by side with your men and women on the front lines of this
fight.
Finally, I note that any meaningful strategy will require a
reasonable allocation of personnel and resources, whether on a
temporary or an enduring basis. In the 5-year period between
2007 and 2011, the number of homicides nationwide fell by 20
percent. Yet in that same period, the number of murders in
Puerto Rico rose by over 55 percent.
Nevertheless, the Federal law enforcement footprint on the
island has not evolved in the face of these profoundly changed
circumstances.
It is my fervent hope that the forthcoming law enforcement
strategy will be action-oriented, and will recognize that an
enhanced Federal response is required, if we are to be
successful in this shared endeavor.
So, Madam Secretary, I just want to give you the
opportunity to tell me and my fellow Members of this Committee
in broad terms how you envision moving forward on this issue.
And I thank you again.
Ms. Napolitano. Well, thank you, Representative.
Yes, I went to Puerto Rico, because I am troubled by a
number of things in terms of the crime situation there, but the
homicide rate being twice that of Mexico is a real eye opener.
And so on my return, I have already met internally with our
staff. We have appointed an internal person to help coordinate.
We will reach out to DOJ and, in particular, to the U.S.
Attorney in Puerto Rico, who is very familiar with the local
situation.
So I think it is going to take all of us working together
to get a handle on this and get that crime rate down, but that
is what our intent is.
Mr. Pierluisi. Thank you so much. I yield back.
Mr. Smith. Thank you, Mr. Pierluisi.
The gentleman from Texas, Mr. Gohmert, is recognized.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you, Madam Secretary, for being here.
When you were here before, back in October, we discussed
Mr. Elibiary, and the week before he had been online using the
secret security clearance that you had given him when you
placed him on the Homeland Security Advisory Council. And he
had used that to access the State and local intelligence
community of interest classified material database and
downloaded material. And we had information that he had shopped
that, trying to claim Texas was Islamaphobes because they were
concerned about radical Islamists.
But since that time, you told me personally at that time
that you were going to look into it. You weren't going to
appoint somebody, you, yourself, were going to look into it.
So what did you find out?
Ms. Napolitano. I found out that the statements that have
been made in that regard are false. They are misleading and
objectionable. And I think they are wrong.
Mr. Gohmert. Okay, then, madam, you need to know that you
have people who are lying in your department, because Texas
Department of Public Safety has been told the investigation was
done. He did access the classified information with his own
private computer. He did download the documents that we knew he
did. And the one thing they could not confirm, because they
didn't talk to the reporter or the people that he shopped the
story to, they couldn't confirm that he shopped the story.
But are you saying before this Congress, right now, that as
Secretary of Homeland Security, that it is a lie that Mohamed
Elibiary downloaded material from a classified website using
the secret security clearance you gave him? Are you saying that
is a lie?
Ms. Napolitano. I am saying that isn't accurate. That is
correct.
Mr. Gohmert. All right, what is inaccurate about that?
Ms. Napolitano. A number of things.
First of all, we have several people on the Homeland
Security Advisory Committee who aren't Muslim. They have been
helping law enforcement for a long time. Mr. Elibiary himself
was recognized by the FBI for his----
Mr. Gohmert. I didn't say anything about that. So if you
could confine your answer to what I said and what you find
misleading in it.
Ms. Napolitano. Well, one of the things I find misleading
is that he somehow downloaded classified documents.
Mr. Gohmert. So you are saying that the State and local
intelligence community of interest database is not classified?
Ms. Napolitano. I am saying that he, as far as I know, did
not download classified documents, and I----
Mr. Gohmert. Now one of the games that gets played
sometimes by people who come up here and testify is that they
have somebody not provide them adequate information so that
they can come in here and say, so far as I know, not to my
knowledge, that kind of thing, and they obscure the truth.
Has Elibiary's status on the Homeland Security Advisory
Council changed?
Ms. Napolitano. No.
Mr. Gohmert. It did not bother you that he accessed
information?
Ms. Napolitano. He accessed some information. What bothers
me, quite frankly, are the allegations that are made against
anyone who happens to be Muslim.
Mr. Gohmert. Well, the allegations are not because he is
Muslim. You follow me around the world. You see me hugging
Muslims around the world, because the ones I hug are our
friends.
And this Administration seems to have a hard time
recognizing members of terrorist groups who are allowed into
the White House. You are aware of that happening, aren't you?
Ms. Napolitano. Absolutely not.
Mr. Gohmert. So, all right. The evidence speaks for itself.
Obviously, you are kept in the dark on a lot of these things.
Ms. Napolitano. Representative----
Mr. Gohmert. Are you aware of what the Freedom and Justice
Party is in Egypt?
Ms. Napolitano. Representative----
Mr. Gohmert. Are you aware of what the Freedom and Justice
Party is in Egypt?
Mr. Conyers. Mr. Chairman, could we have regular order?
Mr. Gohmert. It is a simple question. It does not afford an
interruption.
Is she aware of what the Freedom and Justice Party is in
Egypt?
Mr. Smith. Would the Secretary respond to the question?
Ms. Napolitano. Yes.
Mr. Gohmert. Are you aware that Mr. Elibiary's foundation
that has had their charter pulled because they failed to
provide the information that the Government requires to keep
their 501(c)(3) status? Are you aware that that was, before the
501(c)(3) status was pulled, called the Freedom and Justice
Foundation?
Ms. Napolitano. Representative, I am not going to get into
a debate about some of the----
Mr. Gohmert. I am asking you if you know simple fact.
Ms. Napolitano. I would like to--I would like to----
Mr. Gohmert. You say you are not going to get into debate.
I don't want to debate. This is a question and answer.
Are you aware of that being the name of his foundation that
has now had the 501(c)(3) status pulled?
Ms. Napolitano. The insinuation that I----
Mr. Gohmert. Could you answer the question? There is no
insinuation.
Mr. Conyers. Mr. Chairman, can we have regular order?
Mr. Smith. I will allow the witness to answer the question,
yes.
Mr. Gohmert. Please, answer just the question.
Ms. Napolitano. Representative, with all respect, I believe
you are insinuating that I and members of my staff----
Mr. Gohmert. I am not insinuating anything. I am asking a
direct question.
Ms. Napolitano. Well, Mr. Chairman----
Mr. Gohmert. You are not answering the question----
Mr. Conyers. Mr. Chairman----
Mr. Gohmert. The question is very simple. Were you aware of
his Freedom and Justice Foundation----
Mr. Smith. Let me say to the gentleman from Texas, I don't
think that he is going to get a different answer.
Mr. Gohmert. Then I would ask the assistance of the
Chairman to direct the witness to answer the question as asked.
It is very simple. It is yes or no. Was she aware, or was
she not?
Mr. Smith. We will give the witness an opportunity to give
a final answer, yes.
Ms. Napolitano. Mr. Chairman, I would just like to say for
this Committee, which is a----
Mr. Gohmert. That does not sound like a yes or no. It is
nonresponsive.
Mr. Conyers. Mr. Chairman, regular order.
Mr. Gohmert. It will not be given on my time.
Mr. Smith. Madam Secretary, if you will----
Mr. Gohmert. An answer that is non-responsive.
Mr. Smith. Okay, the answer may be non-responsive.
Madam Secretary, do you have anything to add?
Ms. Napolitano. Mr. Chairman, I didn't know this was a
court with rules of evidence. I was hoping I could explain my
answer.
Mr. Smith. Do you want to proceed to do just that?
Ms. Napolitano. Thank you, Mr. Chairman.
Mr. Gohmert. Mr. Chairman, my question was a yes or no----
Mr. Conyers. Mr. Chairman, regular order.
Mr. Gohmert. Anything but a yes or no answer is----
Mr. Smith. We will allow the witness to answer the
question.
Mr. Gohmert. And the reason there are rules of evidence is
so witnesses just don't go off on a lark----
Mr. Conyers. Mr. Chairman, can we have regular order?
Mr. Smith. The gentleman's time has expired.
Does the witness have anything to add?
Ms. Napolitano. Yes.
This Committee has a long and proud tradition. These kinds
of insinuations demean the Committee. The insinuation that I or
my staff would allow someone who is a terrorist to infiltrate--
--
Mr. Gohmert. I have not insinuating that Elibiary----
Mr. Conyers. Mr. Chairman, regular order.
Mr. Gohmert. He is very nice gentleman. I met him a couple
of times. He is a nice guy.
Mr. Smith. Let me say to the gentleman from----
Mr. Gohmert. There is no such insinuation.
Mr. Smith. We will have regular order.
Mr. Gohmert. The Secretary of Homeland Security----
Mr. Smith. We will have regular order.
Mr. Conyers. Mr. Chairman?
Mr. Gohmert [continuing]. To come in here and make such an
allegation that----
Mr. Conyers. Mr. Chairman, can we have regular order?
Mr. Smith. The Committee will be in order. I understand the
frustration of the gentleman from Texas, but I don't believe he
is going to get a different answer and the gentleman's time has
expired.
Mr. Conyers. And he is out of order, too.
Mr. Smith. The gentleman from Texas, Mr. Poe, is
recognized.
Mr. Poe. Thank you, Mr. Chairman.
Madam Secretary, thank you.
Are you familiar with these people or these cases, the Lois
Decker case in New York, Ashton Cline-McMurray case in
Massachusetts, the Binh Thai Luc case in California? Are you
familiar with those names?
Ms. Napolitano. I may know of them by different
descriptors.
Mr. Poe. Let me briefly go through these, and I want to
talk about specifically criminals.
As a former judge and prosecutor, as you were, crime is
something that none of us like, but let's center in on some
criminals in the United States that are still here, that don't
go home when they are supposed to.
Lois Decker was a grandmother and a mother in New York when
she was murdered, a 73-year-old mother murdered by a citizen of
Bangladesh, was illegally in the United States. He was a
convicted felon.
The system worked. While in prison, he was ordered back to
Bangladesh. He never went back, because Bangladesh wouldn't
take him.
He gets out of prison. He murders Lois Decker, a 73-year-
old grandmother, steals her car and some other things.
Ashton Cline-McMurray, 16-year-old child coming home from a
football game was murdered by--or was beaten by an individual
from Cambodia. Same situation. Never went back when he was
supposed to.
Binh Luc from California was sent to prison for armed
robbery, gets out of prison. He was ordered to go back to
Vietnam. They never took him back. He gets out. He murders five
people in San Francisco.
We have this recurring issue of criminals committing crimes
from foreign countries. The law requires they go back home.
They don't take them back.
We actually have a law that says there is supposed to be
some diplomatic--diplomatic visas are supposed to be rejected
for people who don't go back.
In my investigation of the law, I can only find one time
since the law was written that one country was sanctioned for
failure to take back lawfully convicted criminals from their
country by denial of visas, and that was Ghana. It happened and
they took back 112 after we sanctioned them.
The way I understand the law, your department is to let the
State Department know that these countries are stonewalling the
system, I think gaming the system, won't take back their
lawfully convicted--I mean, why would they take them back? They
have enough criminals of their own. May as well leave them in
the United States. Make them our problem.
But I only see one case, and that was several years ago.
But getting to the concern I have, why isn't that happening
more often that the country is sanctioned by diplomatic visas
for failure to take back lawfully convicted felons, when, if I
read the law, it is a requirement? It says shall take back, or
visas will be denied to these countries, diplomatic visas or
other kinds of visas.
And I don't see that happening, even though the law says
shall. Information from you to the State Department, the State
Department is supposed to reject the visas. It isn't happening.
Can you help us out with that, and tell us how we can solve
this problem?
Ms. Napolitano. Representative, you have really identified
two problems. One is a Supreme Court precedent called Zadvydas,
which says we cannot hold people indefinitely, that there is a
time limit on that. And the other is the practical problem that
there are few countries in the world to which we seek to remove
individuals who would refuse to accept them.
The State Department is well aware of this. I think how
they are proceeding and the moves they are making is something
that you should address to them, but they are well aware of the
problem.
Mr. Poe. Well, what I hear from the State Department is,
they are passing the buck. They say they don't get the
information from you, the countries that are non-compliant.
That is the answer I get from them, so that is why I am asking
you the question.
Are you furnishing them, the State Department, the
information of these countries who refuse to take their
citizens back? The issue of a 6-month detention is not what I
am concerned about. That is the law. I understand that. We
can't keep them in jail. They served their time.
That is not the issue. The issue is they get out. And then
they are our problem.
The State Department gives me the information they don't
get the information from you. Is your department getting that
information to State about noncompliant countries?
Ms. Napolitano. Well, we must be, because the State
Department is indeed taking action and issuing demarches and
other things to some of these countries. The diplomatic tools
they are using is something you should address to them. But
they must be getting information, because they are moving.
Mr. Poe. Do you know of any other country that has been
sanctioned and we refused to give them visas because of their
noncompliance with----
Ms. Napolitano. I do not know of any.
Mr. Poe. Other than Ghana?
Ms. Napolitano. I do not know of any.
Mr. Poe. I have more questions, but I will submit them for
the record, Mr. Chairman, because I know you won't let me keep
talking.
Mr. Smith. Thank you, Mr. Poe.
The gentleman from Utah, Mr. Chaffetz, is recognized.
Mr. Chaffetz. Thank you.
Thank you, Madam Secretary. I appreciate you being here.
Certainly, 40 appearances is an impressive number. We do
appreciate you being here.
I want to talk very quickly, if I can. I actually sponsored
a bill, H.R. 3012. It is Fairness for High-Skilled Immigrants
Act, which got rid of the per country cap limitations. And we
passed that out of this Committee. We passed it out of the
House. It is now awaiting action in the Senate.
I just wanted to confirm that the Administration's view on
removing the per country caps and the appointment-based green
card side was something that the Administration would be okay
with.
Ms. Napolitano. I will have to look into that. But that
sounds right. But let me verify that.
Mr. Chaffetz. Okay. I want to move now to the Southwest
border, because I am concerned about--the President, yourself,
the attorney general, have all said that the Southwest border
is more secure than it has ever been before.
In Operation Fast and Furious, the Government purposely
allowed nearly 2,000 weapons to get into the hands of the drug
cartels. How many of those weapons were detained at the border?
Do you have any----
Ms. Napolitano. I couldn't answer that.
Mr. Chaffetz. My understanding is that there hasn't been
one single gun from Operation Fast and Furious apprehended by
the Homeland Security or any other law enforcement, other than
the two weapons that were found at the scene at the death of
Brian Terry.
Am I wrong in that?
Ms. Napolitano. I just can't answer that. I don't know.
Mr. Chaffetz. Let me ask you this, you know one of the
things that has been touted, as you look at the different
sectors around the country and the protection that we are
trying to provide this country, the Tucson sector is by far the
most problematic.
My question for you is, if the number of detentions is
going up, does that mean that the border is more secure? Or if
the number of detentions at the border is going down, does that
mean that the border is more secure? Which one is it?
Ms. Napolitano. It is down. And let me explain.
Mr. Chaffetz. I know it is down, but does that mean it is
more secure, or would more apprehensions indicate that it is
more secure?
Ms. Napolitano. No, the way it works is that--and this has
been historically done because these are difficult things to
measure with absolutes. But the apprehension numbers are used
as a proxy for how many are attempting. We actually thing that
we are now picking up almost everybody who is trying to cross
that border illegally. And we can look at that, because we are
looking at crime numbers in Phoenix, stash house numbers in
Phoenix, other kinds of indicias to whether illegal immigrants
are trying to get into the interior of the country.
Mr. Chaffetz. In Phoenix, the crime rate between 2008 and
2009 was actually up 6 percent. So to claim it is actually more
secure--I look at Nogales. You look at their crime rate from
2009 to 2010.
Now Nogales is the biggest city right on the border in the
most problematic sector. You look at 2009 to 2010, the total
number of offenses recorded is up 92 percent.
Ms. Napolitano. Well, if I might, since I know the Arizona
situation very, very well and pay a lot of attention to it, the
Phoenix violent crime rate, kidnappings, stash houses, the
other things associated with the illegal immigrant trade, way
down; violent crime rate, way down.
Nogales, actually, I would be interested in that number,
because it doesn't correspond to any other number for Nogales I
have seen. And it doesn't correspond to what the sheriff tells
us.
Mr. Chaffetz. Well, this is from the Nogales Department of
Police. Let me read some numbers: 2009 to 2010, burglary up 82
percent, thefts up 113 percent, thefts from auto up 132
percent, grand theft auto up 70 percent, aggravated assaults up
76 percent, assaults up 81 percent, and damage to property up
81 percent. It doesn't sound like this is the most secure
border that we have ever had.
Ms. Napolitano. Well, I will tell you this, knowing Nogales
as I do, there are probably a number of reasons for that. And I
would challenge the accuracy of those numbers, for a number of
reasons.
Why don't you send me a question, and I will be happy to
answer it for you.
Mr. Chaffetz. That would be great.
Do we have operational control of the border yet?
Ms. Napolitano. I think this Southwest border is as secure
as it has been in decades.
Mr. Chaffetz. What percentage of the border is secure?
Ms. Napolitano. Well, I would say that we have the ability
to move men, materiel, and air cover through the entire
Southwest border.
Mr. Chaffetz. But we haven't yet recovered a single gun
from Fast and Furious even though we purposely gave the drug
cartels 2,000 weapons.
This is the concern, and I would appreciate the ongoing
dialogue, because I would disagree with the analysis that it is
more secure than ever when you have places like Nogales with
increasing crime rates.
Mr. Smith. Would the gentleman yield?
Mr. Chaffetz. Yes.
Mr. Smith. Madam Secretary, I wanted to follow up on a
couple of things you just said in response to the gentleman
from Utah's questions.
The Government Accounting Office last year said that only
40 percent of the border was under operational control.
Ms. Napolitano. Yes, that----
Mr. Smith. Do you disagree with that?
Ms. Napolitano. Yes, and it is--unfortunately, it gets into
government-ese and different----
Mr. Smith. Okay, Well, government--I have great faith in
the Government Accounting Office. They are objective. They are
not under the thumb of the Administration.
Ms. Napolitano. Yes.
Mr. Smith. But the other thing I wanted to make sure I
heard correctly, you said that you thought that virtually
everybody crossing the border illegally was being picked up?
Ms. Napolitano. In some areas, yes.
Mr. Smith. Oh, in some areas. I don't think you made that
clear a while ago,
Ms. Napolitano. Okay.
Mr. Smith. Because believe me, in South Texas, the Border
agents I talk to still think that two to three to four
individuals are getting across the border illegally for every
one apprehended.
Ms. Napolitano. Well, Mr. Chairman, I think the head of the
CBP or Border Patrol would be happy to provide you with a
briefing. But this is the first time we have been able--we have
enough manpower and materiel, first time where we can actually
get ahead of changing traffic. And so we are surging in South
Texas.
Mr. Smith. In what areas do you think you are picking up
virtually everybody coming across the border illegally?
Ms. Napolitano. Oh, I would have to give you a list, but at
least one of the Arizona sectors, I think we are getting
virtually everybody.
And it is certainly more than one in three, which was the
typical statistic used in the past.
Mr. Smith. Okay. For you to say you are picking up
virtually everybody certainly is not true. South Texas, I doubt
that it is true. Southern California----
Ms. Napolitano. We are putting a lot of effort into South
Texas now, Mr. Chairman.
Mr. Smith. Well, as they say, I am going to rely on the
testimony of the Border Patrol agents.
I thank the gentleman----
Mr. Chaffetz. Mr. Chairman, to suggest that we are picking
up--that there is no illegal immigration going on in Arizona is
a joke. An absolute joke.
Ms. Napolitano. Mr. Representative, that is not an accurate
summation of what I said. I said, in one of the sectors, I
think we are getting virtually all. I did not say----
Mr. Chaffetz. In Yuma?
Ms. Napolitano. Yuma sector, I think we are getting
virtually all. I think the Tucson sector is a very active
sector.
But when I compare the numbers in Tucson sector now to what
they were a few years ago, there is almost no comparison. It is
night and day.
Mr. Smith. Okay.
Mr. Chaffetz. I wish I had more time, but----
Mr. Smith. Please submit numerous questions.
The gentleman from South Carolina, Mr. Gowdy, is
recognized.
Mr. Gowdy. Thank you, Mr. Chairman.
Good afternoon, Madam Secretary.
You mentioned the term prosecutorial discretion eight times
in a two and a half page memo, so I want to ask you about that
phrase, because it was important enough to use multiple times.
And prosecutors do have a lot of discretion. We have the
discretion, as you know, whether to indict; when to indict; in
some states, when to call the case for trial; to sentence
bargain; to charge bargain.
But I am interested in whether or not there are any limits
to prosecutorial discretion, because I can tell you, Madam
Secretary, I had to prosecute a lot of cases where I disagreed
with the underlying law. I never understood or agreed with the
disparity in cocaine base and cocaine powder. The entire time I
prosecuted drug cases, I never agreed with the sentencing
disparity. It never entered my mind to subordinate the
legislative intent with my own.
And I would say the people who think that they benefit from
these episodic exceptions to the administration of law equally
to be careful. Today it may benefit you; tomorrow it may not.
And with respect, their defense is not--this Administration
or even your department--their defense is the fact that we are
a Nation of laws and not a Nation of men or women, a Nation of
laws.
So let me ask you this. If the DEA administrator decided
that he thought marijuana should not be criminalized, does he
have the ability, the power, the authority to no longer
prosecute marijuana cases?
Ms. Napolitano. Well, I think there are plenty of examples
around the country where marijuana cases, particularly low-
level, personal possession cases, are not being prosecuted at
all, even though the law is still on the books.
Mr. Gowdy. I asked if the DEA administrator had the
authority to, by memo, say we are not going to prosecute
marijuana cases anymore, because we do not agree with the
criminalization of marijuana?
Ms. Napolitano. Well, I think the DEA administrator has the
right as part of prosecutorial discretion to say what cases
will be prioritized and what will not be, and how those lower
priority cases will in fact be handled. That is what happened
here.
Mr. Gowdy. I am not talking about case-by-case, because the
truth is, Madam Secretary, you already had the authority to
decide case-by-case.
In other words, there was no need for your memo. This memo
gave you no more authority than you had before you drafted it,
which leads some of us to conclude that it was a political memo
and not a law enforcement or a legal one.
Can you understand the skepticism of some of us? You
already had the authority to decide on a case-by-case basis. So
why publicize it, why announce it to the world, unless it was
for political purposes?
Ms. Napolitano. Well, in fact, it is the outgrowth of
several years. And one of the things that--there was a 2010
memo on our priorities. There was a 2011 memo on prosecutorial
discretion.
Then we began going case-by-case through the 350,000 cases
already in the backlog. We found that, in doing so, that wasn't
enough to really clear out and get out of the huge backlog that
we have in lower priority cases.
This memo takes the lowest of the low-priority cases, young
people not of their own volition, they are already invested----
Mr. Gowdy. I am familiar with the policy.
Ms. Napolitano. This is the way we are going to handle
this.
Mr. Gowdy. I am familiar with the policy, and my response
to that is, if you are so right on the policy, then you ought
to be able to convince the people who pass the laws, that that
is a legislative issue. It is not an executive branch issue.
I am sure that you prosecuted 924(c) cases when you were
the U.S. Attorney, and certainly your staff did. That is an
example of Congress saying to the judge, you have no discretion
when it comes to sentencing. It is going to be 60 months for a
garden variety 924(c) regardless of whether or not you think
that ought to be the sentence.
And my guess is, I don't know this, my guess is when you
were the U.S. Attorney in Arizona, if a judge departed too far
below the guidelines, you would appeal that judge, because that
was outside his or her discretion.
My question to you is, what is our remedy, as lawmakers, as
legislators, when you ignore laws that have been passed?
What is our remedy? To cut off the funding? To direct to
you, you have to prosecute this category of cases, because the
explanation that I have heard is one of resources, that we
don't have the resources to prosecute this category of case?
And, Madam Secretary, tomorrow it may be another category
of case, and then the day after another category of case. So,
at first blush, it strikes me, it takes as many resources to
identify whether your memo applies or not as it would to
prosecute the case. How long have they been in the country?
What is their educational background? What is their age?
Whether or not they have a record of serious misdemeanors?
All of that requires resources, your agency's resources. So
it strikes me as--I am not going to use the word----
Mr. Lungren [presiding]. The gentleman's time has expired.
The witness can answer the question.
Ms. Napolitano. Well, I think you and I clearly disagree on
what discretion means and how it can be applied.
But on the resource question, as I mentioned earlier, there
will be a fee associated with the process and the adjudication
of the process. So this is not anticipated to come out of
taxpayer funds.
Mr. Lungren. The gentleman's time has expired.
The gentlelady from California, Ms. Chu, is recognized for
5 minutes.
Ms. Chu. Thank you.
Madam Secretary, first of all I want to commend ICE's
intellectual property enforcement work, particularly through
Operation In Our Sites. These efforts are protecting American
consumers and intellectual property owners from fakes and
dangerous goods, including counterfeit drugs that are sold
online by criminal enterprises, as well as copyright infringing
works, such as movies and TV shows that are created by my
constituents in my district in Southern California.
And you have had some investigations that have been very
important for our area; for instance, an investigation last
year which led to prison sentences for owners of a Los Angeles
jewelry store who illegally imported and sold counterfeit
designer jewelry, some of which tested positive for hazardous
levels of lead. In fact, the lab tests showed that there was
nearly 20 times the amount lead deemed safe by the Consumer
Product Safety Commission for handling by children. And,
despite that, these items were labeled lead-free. So you really
solved and were able to attack a terrible problem there.
I also want to applaud you for the announcement with regard
to our Dream Act students who were brought here by their
parents and came here without documentation through no fault of
their own, and to have grown up in the United States and want
to contribute to this country.
In fact, we have Dream Act students right here in the
audience. This means a lot them. The policy will help to ensure
that we don't focus our limited taxpayer resources on
individuals who don't pose a threat to our country and who want
to give their heart to this country that they call home.
And my question has to do with immigration courts. As a
long-time prosecutor, you know that you can't enforce a law and
prosecute people effectively if you can't get on the court's
dockets. Our immigration court system is incredibly backlogged.
Right now, there are more than 300,000 pending cases.
If you are an ICE trial attorney in Phoenix who is trying
to remove someone who is a high enforcement priority, you are
going to have to wait until the year 2018 to get a court date
for the merits.
In El Paso, you have to wait until the year 2016 to even
get into the court for a master calendar hearing to set a
schedule for the case. That doesn't make sense.
Can you describe what DHS is doing to fix up this problem
and how your recent Dream Act memorandum will help you clear up
this backlog?
Ms. Napolitano. Representative, we have been addressing
that. It is really a question for DHS and the Department of
Justice. But we have been addressing it through offering
administrative closure to low-priority cases that are caught in
the backlog.
We have been able to offer closure, I think, to about 8
percent of those cases. And, then, by what is coming into the
immigration court system, making sure that those are the public
safety cases, the criminals, the recent border crosses, the
repeat violators, those are the ones that we prioritize. And
just as we can prioritize, we can deprioritize, that those get
our full attention.
Ms. Chu. Let me also ask about the historical precedent to
prioritize. When Director Morton first issued his enforcement
priorities and prosecutorial discretion memos, some critics
attacked the memos as unconstitutional and in violation of the
separation of powers doctrine. These same attacks have
continued in the wake of your memo on deferred action for Dream
Act students.
I wonder if you could respond to this claim and describe
for us some of the historical precedent for issuing guidance
such as this.
Ms. Napolitano. Well, there is a lot of historical
precedent going back decades. I mentioned a few of the key
cases, Chaney v. Heckler. There is a case, Reno v. Arab-
American Anti-Discrimination league.
And the recent Arizona decision of this Supreme Court is
very clear that, in the immigration field, we possess and
should possess enormous discretion on how to actually enforce
the laws.
Ms. Chu. In fact, doesn't Chapter 6 of the U.S. Code,
Section 202, specifically direct you to establish national
immigration enforcement policies and priorities?
Ms. Napolitano. That is true.
Ms. Chu. And, in Congress' annual appropriation bills, have
we not directed you to prioritize the removal of serious
criminal aliens and fund programs that specifically target such
populations?
Ms. Napolitano. Yes, you have.
Ms. Chu. And, aside from Congress' direction, hasn't DHS
and INS before issued similar guidance about the use of
prosecutorial discretion?
Ms. Napolitano. That is right. Doris Meissner, when she was
the commissioner of then-INS, issued a very lengthy memo filled
with all of the then existing legal precedent. That memo was
cited by Julie Myers, who was the director of ICE before our
Administration took over.
So there is a long track record here of how we do this.
And, again, I think it is important to emphasize, what we
are trying to do is to increase the proportion not only those
we remove from the country, the absolute number, but those of
them who are convicted criminals, recent border violators, or
repeat violators of our Nation's immigration laws.
Ms. Chu. Thank you.
Mr. Lungren. The time of the gentlelady is expired.
And the gentleman from Arizona, Mr. Franks, is recognized
for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Thank you, Secretary Napolitano, for being here.
Madam Secretary, both the 9/11 Commission report and the
2011 bipartisan report by Senators Lieberman and Collins on the
Fort Hood massacre found that a major failure of the national
security apparatus in those instances, to quote their
materials, ``was the failure to acknowledge the true enemy
explicitly as violent, Islamist extremism.''
The DHS former top intelligence officer, Charlie Allen,
noted that the U.S. Intelligence community doesn't even have,
quote, ``the minimum essential requirements,'' unquote, for how
to collect information about violent Islamist extremism.
Madam Secretary, as you know, Sun Tzu said that if you
cannot identify your enemy, you cannot defeat him. Multiple
agencies knew that Major Hasan was communicating with terrorist
leader Awlaki, yet the Fort Hood massacre was deemed by this
Administration, quote, ``workplace violence.''
And political extremists don't recognize political
correctness. And political correctness seems so extreme inside
this Administration that the Attorney General, Eric Holder,
came before this Committee and, after being asked numerous
times, refused to acknowledge to our Chairman that radical
Islam could be a, quote, ``factor'' in terrorism threats.
And I think this kind of political correctness is killing
Americans. Agents inside this Administration have told Members
of this Congress that they are often afraid to identify the
terrorist enemy and his ideology when the enemy cloaks himself
in religion.
So my question is this: If an agent inside your agency
needs to identify the next Fort Hood shooter and that agent
says that the terrorist is by a jihadist ideology, is that
agent going to be punished?
Ms. Napolitano. No.
Mr. Franks. And I have your word on that?
Ms. Napolitano. We look at that--we look at varying
ideologies, but the notion that we won't say terrorist or
Islamist is not accurate.
Mr. Franks. And an agent won't be punished for opining the
same.
Ms. Napolitano. I wake up in the morning thinking about how
to protect this country, and I go to bed at night thinking
about how to protect this country, And that is from individuals
who seek to harm us of a variety of ideologies, but Islamist or
radical violent Islamist is certainly one.
Mr. Franks. Okay, well, I have a letter dated October 19th,
2011, from multiple organizations, including several unindicted
co-conspirators in the Holy Land Foundation trial. This is, of
course, the largest terror-financed trial in U.S. history.
And this letter is addressed to you, to Attorney General
Holder, and to Leon Panetta. And it demands a, quote,
``purge,'' unquote, of all counterterrorism training materials
on the grounds that some of the materials reflected poorly on
Islam. Now, within days, the Administration commenced an
unprecedented nationwide purge of its counterterrorism
materials.
And an investigation into the FBI purge reveals that
radical Islamist ideology is being purged along with
information about mainstream Islam without distinction.
Essentially, political correctness at the behest of unindicted
co-conspirators is prevailing over the recommendations of the
9/11 report and the bipartisan Senate report on Fort Hood.
Has your agency also purged counterterrorism training
materials along with the internal discussions that reference
radical Islamist ideology and practice?
Ms. Napolitano. Not that I am aware of, no.
Mr. Franks. Have you had any discussions with anyone in
White House about the contents of that letter?
Ms. Napolitano. No, I haven't.
And let me just say, there are lots of training materials
out there, so we are constantly revising and improving based on
the intelligence we get and receive and how that is analyzed as
to what are the evolving threats against the United States. But
that is not a purge; that is just evolution of training
materials.
Mr. Franks. Are you aware of the purge within the FBI?
Ms. Napolitano. No, I am not.
Mr. Franks. The materials, you are not aware of that?
Ms. Napolitano. No, I am not.
Mr. Franks. All right. Well, thank you for coming by today
and I appreciate your answering the questions.
Ms. Napolitano. You bet.
Mr. Lungren. The gentleman yields back his remaining time.
And the gentleman from Arizona, Mr. Quayle, is recognized
for 5 minutes.
Mr. Quayle. Thank you, Mr. Chairman.
Thank you, Madam Secretary, for being here.
I want to go back to what you said the fee for the process
that is going to be starting in August and the fact that it is
not going to cost American taxpayers.
Isn't it true that there is also going to be a fee-waiver
process as well, so that there is going to be some people who
we waive to actually pay the fee so that it will actually cost
American taxpayers?
Ms. Napolitano. The decision on that is not yet final, but
I don't anticipate there will be a broad fee-waiver process.
Mr. Quayle. But there will be a fee-waiver option.
Ms. Napolitano. There may be a slight exception in
particular of very deserving cases, but we anticipate this will
be a fee-borne process.
Mr. Quayle. Okay, so there could possibly be a fee waiver
in certain instances.
Ms. Napolitano. For a person of compelling--but let me
say--let me be very clear. We have not yet decided this or how
to articulate it, and I don't want the expectation out there by
the applicants that there is going to be a broad fee-waiver
process. There is not.
Mr. Quayle. Okay, that would be more discretion on the part
of DHS.
Ms. Napolitano. On a very hardship basis.
Mr. Quayle. So you mentioned that the memo that you put on
shortly after the Supreme Court ruling was a process of many
memos, the Morton memos that came out 1 or 2 years ago and now
it is your memo.
I think that one of things that is concerning to a lot of
us when you are talking about discretion is what is the next
memo that is going to be coming out in terms of waiving or not
allowing the actual prosecution of certain laws that are on the
books?
I mean, is it going to be the next memo that comes out not
just from you, but some other, that they are not going to
enforce a different law that is on the books?
And what my friend from South Carolina was trying to get at
was what is our remedy as legislators? Do we have to, in every
single law that we pass, that we pass through the Congress and
the President signs, do we have to add a clause that says we
really mean it, you have to actually enforce these laws?
Because the discretion that you are talking about just seems
like this means that the laws that are written and that are
actually signed by the President don't really mean anything if
they actually have the discretion to disregard them.
So what can we do, as legislators, to make sure that we get
the laws that are passed actually fully enforced by the
executive branch?
Ms. Napolitano. You know, Representative, I have been an
executive my whole career, so it is really hard for me get into
that legislative mindset. I will leave that for you.
But I will say we are enforcing the laws. We have removed
more people from this country than any prior Administration
over a similar time period. In fact, I get criticized for that
on a regular basis.
But in the constitution of what is in there, we removed
more criminals, border crossers, repeat violators. Ninety
percent-plus last year are in those priorities. That is going
to increase.
And so I think it is totally within discretion about how
you take the laws and say, look, you don't give us--no law
enforcement agency has unlimited resources. We all have to make
decisions. You would be hard-pressed to find a U.S. Attorneys'
Office that takes a check cashing case, even though there is a
Federal statute about it. It is a resource question.
Mr. Quayle. Do we have to say, look, this law, it is
mandatory, you have to enforce it. Is that the route we are
going to go? Because that seems to be--I mean, judges aren't
allowed to waive the mandatory minimums that are put in place
by the legislatures, even in State or Federal.
And so this is what I am trying to get at, is that, when we
have a situation where an executive branch does not actually
enforce the laws but provides waivers or deferments or whatever
you want to call it, we have a situation where the executive
branch becomes all-powerful. And you can waive or not enforce
any law that is on the books.
And that completely and totally destroys the constitutional
framework of our country of separate but co-equal branches of
Government. And so I guess that is where we are going to have
to go.
But I want to jump really quickly, because my time is
limited, to 287(g) that you were talking about earlier.
Director Morton was also testifying last week, and you were
saying that there were no removals for the Arizona 287(g) task
force programs in the last 2 years?
Ms. Napolitano. For six of them.
Mr. Quayle. For six of them?
And which numbers--there were seven of them? Is that what--
--
Ms. Napolitano. I think--and we could give you the actual
numbers. They are not a secret.
Mr. Quayle. But, I mean, the word ``removal'' is very
specific in terms of you guys and ICE actually removing the
person. But that doesn't necessarily mean that an illegal
immigrant was found by that agency that was a part of the task
force and was handed over to ICE but then isn't actually
removed.
So, I mean, in 2010, the DPS, 112 illegal aliens were
processed with ICE; 74 were processed in 2011.
How many of those--I mean, maybe you will have to give me
the answer. How many of those were actually removed, even
though they were actually processed through ICE?
Because I have noticed that you used the same word that Mr.
Morton does as well, but that doesn't get to the crux of how
effective are local and State agencies actually apprehending
illegal immigrants who are committing other crimes and then
giving them to ICE, because then ICE has that discretion that
they had been using?
Ms. Napolitano. Well, I think the goal of ICE----
Mr. Lungren. The time of the gentleman has expired, but the
witness may answer that question.
Ms. Napolitano. Thank you, Mr. Chairman.
You know, our goal is to remove those people who have been
committing crimes in the country. So that is why we use removal
as the key number.
I think one of the other comparisons you might make,
Representative, is between those task forces--and they are
hugely expensive, and I will give you that breakout as well,
compared to Secure Communities, which we have in all border
States, in all the jurisdictions, where we have literally found
thousands of criminals and aggravated felons.
So from an administrative, management, cost-effective way
of doing this, Secure Communities is so much better.
Mr. Quayle. All right. Thank you.
Mr. Lungren. The gentleman from South Carolina--or North
Carolina, Mr. Coble.
Mr. Coble. I will hold you harmless for that, Mr. Chairman.
Mr. Lungren. Well, you haven't been here that long, so I am
still getting to know you.
You are recognized for 5 minutes.
Mr. Coble. Thank you, Mr. Chairman.
Madam Secretary, good to have you back on the Hill.
The distinguished gentleman from South Carolina, Madam
Secretary--mentioned, or discussed prosecutorial discretion
with you. Let me ask you this, Madam Secretary.
What are you all at Homeland Security doing to assure that
the new prosecutorial discretion policies do not result in the
release of 17-year-old alien gang members into our communities?
Ms. Napolitano. Well, the use of discretion in the deferred
action program, a gang member would not qualify.
Mr. Coble. I can put that in the bank, right?
Ms. Napolitano. If there is an arrest for a felony or a
serious misdemeanor, that person does not--and there is a
criminal record and other indication that this is a gang
member, no, that person won't qualify.
Mr. Coble. I thank you for that.
Madam Secretary, I am going to insert my oars into
geographic waters that are far extended from my district.
Sometimes that can be a harmful exercise, but I am told that
Cook County, Illinois, is a so-called sanctuary jurisdiction
that does not cooperate with ICE to deport immigrants who have
been arrested. Chicago, I am furthermore informed, is currently
experiencing a massive wave of gang-related homicides.
Might not better cooperation between the county and ICE to
deport illegal immigrant gang members help or assist alleviate
the murder crisis in Chicago?
Ms. Napolitano. Yes.
Mr. Coble. That is a hypothetical, I will admit.
Ms. Napolitano. Yes, I agree.
Mr. Coble. All right. Let me go back to the alien minors.
What is being done, Madam Secretary, to ensure that
unaccompanied alien minors interdicted at the border, who turn
out to be gang members, are not released into our communities?
Ms. Napolitano. Well, again, there is guidance and
supervision in the field as to that. There is a consequence
delivery system, as I will explain in detail for you, or have
someone explain for you. But it would be our total intention to
make sure our agents pick that person up.
Mr. Coble. I thank you. I think I have time for one more
question. ICE has found that the membership of violent
transnational gangs is comprised largely of foreign-born
nationals. Is it not better to deport gang members before they
are caught committing major crimes, not after?
Now, in 2005, the House passed legislation authored by Mr.
Sensenbrenner to allow for the deportation of all alien gang
members. Would you support such legislation?
I don't think it ever got passed in the Senate.
Ms. Napolitano. Yes, I am not familiar with it,
Representative, so I am reluctant to comment on it.
Mr. Coble. Could you get back to me on that?
Ms. Napolitano. Yes.
Mr. Coble. I would appreciate that.
Mr. Chairman, I think my time is about to expire. Thank
you. I yield back.
Mr. Lungren. The gentleman yields back.
And the gentlelady from Florida, Mrs. Adams, is recognized
for 5 minutes.
Ms. Adams. Thank you, Mr. Chairman.
Madam Secretary, we meet again, and I am going to ask you
some very similar questions as to the last time we spoke.
I know, in December, you responded to my requests on how
many people had been deported under Section 243(d), and I
believe that your letter said that is the last step in getting
countries to repatriate and to be used only after diplomatic
efforts have failed. You also conceded that the Administration
has yet to invoke these sanctions.
That was December. Now we are here in July. Have they
invoked any? Have you recommended any to the Department of
State?
Ms. Napolitano. Well, again, I think----
Ms. Adams. Just a yes or a no. I mean, I have sat here all
day, and I have listened to the filibustering. I think yes or
no. Have you recommended any to the Department of State?
Ms. Napolitano. Again, the information as to which
countries are not working with us----
Ms. Adams. I will take that as a no. We will move on,
because I have a lot of questions.
Ms. Napolitano [continuing]. To the State Department, and
it is up to them to make----
Ms. Adams. Secretary, with all due respect, I want to get
answers to my questions, not answers you want to give me. So a
simple yes or no is what I was asking you. If you want to go
into further detail, I would love to have you respond in a
letter to get further into it, but a yes or no was perfectly
satisfactory on a question, have you or have you not submitted
any persons to the Department of State under 243(d)?
Ms. Napolitano. I will get back to you in writing.
Ms. Adams. Thank you.
Now, is it true that Agent Terry was shooting a beanbag gun
the night he was killed?
Ms. Napolitano. I will get back to you in writing.
Ms. Adams. Okay. We are going to go that route. That is
fine.
Is it true--do you have policies and procedures for your
law enforcement officers on how to respond to active shooters?
Ms. Napolitano. I will get back to you in writing.
Ms. Adams. So you are planning not to answer any of my
questions the rest of this afternoon?
Ms. Napolitano. If you want an either yes or no----
Mr. Conyers. Mr. Chairman?
Ms. Napolitano [continuing]. And won't let me explain----
Mr. Conyers. Mr. Chairman----
Ms. Napolitano. [continuing]. I will have to explain in
writing.
Ms. Adams. Well, let me ask you this.
Mr. Conyers. I think that this proceeding----
Mr. Lungren. Let's have regular order. Regular order.
Mr. Conyers. Yes, could we have regular order, please?
Ms. Adams. Thank you.
I am in possession of what is called ``How to Respond to an
Active Shooter.'' How to respond: An active shooter is an
individual actively engaged in killing or attempting to kill
people in a confined and populated area typically through the
use of firearms.
I sent a letter, once I had heard about this, because it
was reported all over the news. Fox reported that DHS officials
maintained that the active shooter course was designed for all
employees, civilian and law enforcement officers, and no one
should rush into a situation where they or others around them
could get hurt.
Here is something from some of the Border Patrol agents:
All immigration law enforcement officers have been required to
watch the video.
And when I asked, you said they are not designed to mandate
law enforcement actions. However, they are your training. Are
they not your training materials?
Ms. Napolitano. They are training materials for civilians.
Law enforcement observe them for situational awareness. Our use
of force policies are consistent with all of Federal law
enforcement. They are in writing, and we will supply them to
you.
Ms. Adams. Thank you very much. Because the letter I
received just said they are not mandated. And I have real
concerns when we have a Border Patrol agent who may or may not
have been shooting a beanbag up against a very high-powered
weapon. We have this who says that you are only to shoot back
when your life is threatened. And as a law enforcement officer
who was sworn to protect my community, if I was out and about,
even off-duty, and someone were to start shooting in a
populated area, or nonpopulated, but threaten someone's life,
not my own, but threatening other people's lives, I was
required to act to stop the aggression and save those lives.
So I just wanted to make sure that this is not something
that you are telling your armed law enforcement officers to do,
to run away and hide?
Ms. Napolitano. They were told about it and went to the
training so they were situationally aware. But the use of force
policy is that which is consistent across Federal law
enforcement.
Ms. Adams. Well, again, maybe you need to get your public
information officer that information, because they were quoted
as saying it was for all, law enforcement and civilian
employees. It was a policy.
Ms. Napolitano. For different purposes.
Ms. Adams. I also look forward to getting your information
back on 243(d) and how many times you have recommended someone
be deported under that.
As you know, these are violent criminals who have served
time, and because their country refuses to take them back, they
are released into our communities to create and commit more
violent crimes.
You know, I am very concerned that we have an option and it
has yet to be employed when we have people being murdered by
the very people that had threatened them, done time in jail,
and because their country wouldn't take them back, were
released into the community to kill their victim.
And my time has expired. I yield back.
Mr. Lungren. The gentlelady's time has expired.
I am the last questioner, because I had to be in another
meeting, is me.
And so, Madam Secretary, thank you for appearing before us.
We have had opportunities to have conversation before on the
other Committee, Homeland Security. And I appreciate your work
and your time.
I must just say, though, as someone who has been involved
in immigration law for 30-some years, who is the ranking
Republican who carried the Simpson-Mazzoli bill, believing that
we had a balance between legalization at that time and
enforcement, and then sorely disappointed at the failure of
enforcement ever since, it is very important what we do, and
what message it sends, not only to those who are directly
affected, but to those who would see how we act and perhaps
take advantage of that.
And that is why it bothers me a great deal--I will just put
this on the record. It bothers me a great deal that the
President had an opportunity for almost 3 and a half years to
work on efforts for immigration reform, 5 months before an
election decides to announce this particular policy.
And you come before us, and you tell us that we can't tell
you all the details of the policy because they haven't worked
them out. Normally, you work out what the details are, and then
you declare your policy if in fact the intention is to have it
work and not just make a political statement.
And that is just my observation. And so it is a
disappointment to me, I will tell you. But I understand----
Ms. Napolitano. I think I disagree with you Representative.
Mr. Lungren. I would presume that you do.
Ms. Napolitano. I assume you know I would disagree, but let
me simply say that this was the evolution of a process that
began in 2010.
Mr. Lungren. I understand that.
Let me ask you this, if the Congress gave you additional
funding and directed that it only go toward removal and
deportation cases, would you then alter your position on
prosecutorial discretion? Because as I understand it, a great
deal of what you have stated your policy to be is a consequence
of limited budgets and, therefore, the necessity to establish
priorities.
Ms. Napolitano. So you are saying if you give me an
unlimited pocketbook, would I take it back? Is that the
question?
Mr. Lungren. No, that is not my question. And I know you
know that was not my question.
My question was, if we gave you additional funding,
directed that you use those funds toward removal and
deportation cases, would you still come up here and testify
that the Administration would have the same policy as it
announced in terms of the memorandum and the President's
announcement at the White House?
Ms. Napolitano. Yes, and the reason is there are plenty of
criminals, border crossers, and repeat violators, more than
enough for us to remove from the country. So you can give us
more money, we will take it, but we are going to put it into
the----
Mr. Lungren. Even if we gave you enough money to cover
those people that are included in the prosecutorial discretion
decision?
Ms. Napolitano. Representative, I think that is so unlikely
that it is hard to answer the question.
Mr. Lungren. Well, I guess you don't want to answer the
question about whether it is about resources or because you
happen to disagree with the underlying law.
And I can understand you disagree with the underlying law,
but that, it seems to me, is not the basis upon which to hide
behind a prosecutorial discretion, a definition where it is not
a case-by-case authority. It is, in fact, a broad category that
has been established.
There has been a statement here that, because we are
covering this group of individuals who, through no fault of
their own, came to the United States, it is in fact almost
imperative we do that. My question is, is anybody at fault for
them coming to the United States?
Ms. Napolitano. It depends.
Mr. Lungren. Well, does your policy include not only, and I
know you don't call it amnesty, so we will not call it that.
Let's say it is a refusal to take action under the law with
respect to this category of individuals.
What does it do with respect to the individuals who brought
them here illegally? Are they also covered by prosecutorial
discretion?
Ms. Napolitano. They may be covered by prosecutorial
discretion, but they are not covered by the deferred action
memorandum.
Mr. Lungren. So what would we believe then? Individuals
that are covered by this, with respect to the quote, unquote,
``Quasi Dream ACT'' deportation, deferment, or whatever you
want to call it. And does that extend to their relatives as a
matter of policy?
Ms. Napolitano. No.
Mr. Lungren. So that parents would not be covered by this,
so the students would stay in the United States, but the
parents would be subjected to deportation?
Ms. Napolitano. Well, they would be reviewed under a
different standard, if their case came into ICE. And that would
be the prosecutorial discretion memo of last June.
Mr. Lungren. So the likelihood is they would not be?
Ms. Napolitano. If they had a felony or a serious
misdemeanor on their record, they would be a priority case.
They would be removable.
Mr. Lungren. One last question, because my time is rapidly
depleting here.
Yesterday, we had testimony by a TSA representative in
another Subcommittee about the issue of pilot licensing or
pilot lessons, and the question of checking people before they
are able to do that.
And it was brought up by the representative of TSA that,
currently, you do not match the list of those who want to apply
for pilot lessons with the no-fly list. And that seemed to be
incongruous that on a no-fly list I couldn't get on a
commercial aircraft, but I could, in fact, go to a pilot
training program and not be stopped from doing that, because it
is not checked against that list.
Ms. Napolitano. Representative, let me take the opportunity
to offer a classified briefing to you. The plain fact of the
matter is, there are lots of different ways someone on the no-
fly list would not be in a position to get a pilot's license.
But I think I need to go in a classified----
Mr. Lungren. Okay, I understand.
But the statement was made on the record yesterday that
they are not checked against the no-fly list, period. And that
is disturbing, if that is the case.
Ms. Napolitano. The TSA representative may not have been
aware of all the other things that occur.
Mr. Lungren. I appreciate that very much.
I have so many more questions to ask you, but my time is
up. And I know you would love to be here and enjoy our time
some more, but, alas, that is not possible.
So we thank you for your testimony today. I know that there
are questions that will be submitted to you in writing, and I
know you will endeavor, as you have stated on the record, to
get those to us in a timely fashion, as we define timely here.
And without objection, all Members have 5 legislative days
to submit additional written questions for the witness or
additional materials for the record.
Mr. Lungren. And this hearing is adjourned.
[Whereupon, at 12:55 p.m., the Committee was adjourned.]

A P P E N D I X

----------

Material Submitted for the Hearing Record

Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Member, Committee on the
Judiciary

__________

Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Member, Committee on the
Judiciary

Response to Questions for the Record from the Honorable Janet
Napolitano, Secretary, U.S. Department of Homeland Security