[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
RELEASE OF CRIMINAL DETAINEES BY U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT: POLICY OR POLITICS?
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MARCH 19, 2013
__________
Serial No. 113-5
__________
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
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 JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
----------
MARCH 19, 2013
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, 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.................................................. 3
WITNESS
The Honorable John Morton, Director, U.S. Immigration and Customs
Enforcement
Oral Testimony................................................. 11
Prepared Statement............................................. 13
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
Prepared Statement of the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Member,
Committee on the Judiciary..................................... 5
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 6
Material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 8
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 21
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 41
Material submitted by the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Member,
Committee on the Judiciary..................................... 47
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 60
Material submitted by the Honorable Tom Marino, a Representative
in Congress from the State of Pennsylvania, and Member,
Committee on the Judiciary..................................... 131
Material submitted by the Honorable Hakeem Jeffries, a
Representative in Congress from the State of New York, and
Member, Committee on the Judiciary............................. 136
Material submitted by the Honorable Ted Poe, a Representative in
Congress from the State of Texas, and Member, Committee on the
Judiciary...................................................... 147
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Doug Collins, a
Representative in Congress from the State of Georgia, and
Member, Committee on the Judiciary............................. 152
RELEASE OF CRIMINAL DETAINEES BY U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT: POLICY OR POLITICS?
----------
TUESDAY, MARCH 19, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 1:10 p.m., in room
2141, Rayburn Office Building, the Honorable Bob Goodlatte
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Coble, Smith, Bachus,
Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz,
Marino, Gowdy, Labrador, Holding, DeSantis, Rothfus, Conyers,
Scott, Watt, Lofgren, Jackson Lee, Johnson, Gutierrez, Bass,
Richmond, DelBene, Garcia, and Jeffries.
Staff present: (Majority) Shelley Husband, Chief of Staff &
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Dimple Shah, Counsel; Kelsey Deterding, Clerk; (Minority) Perry
Apelbaum, Staff Director & Chief Counsel; Danielle Brown,
Parliamentarian; and Tom Jawetz, Counsel.
Mr. Goodlatte. The Judiciary Committee will come to order.
And without objection, the Chair is authorized to declare
recesses of the Committee at any time.
I want to take the opportunity of this full Committee
gathering to make Members aware of our new policy regarding
participation in Subcommittee hearings. At the beginning of the
Congress, I was asked whether Members who are not a Member of a
Subcommittee would be allowed to participate in Subcommittee
hearings. After giving it some thought, I have come up with
what I think to be a reasonable solution that will allow our
Members some level of participation without overburdening the
Subcommittees.
A Member who is not a Member of a Subcommittee but is a
Member of the full Committee may attend a hearing and sit on
the dais. That Member may also ask questions of the witnesses
but only if yielded time by an actual Member of the
Subcommittee who is present at the hearing. I would ask that
Members who intend to participate in this fashion let the
majority staff know as far in advance of the hearing as
possible so that we may prepare accordingly. And it will remain
the policy of the Committee that we do not allow Members to
participate in our hearings who are not Members of the
Judiciary Committee.
We welcome everyone to today's hearing on the ``Release of
Criminal Detainees by the U.S. Immigration and Customs
Enforcement: Policy or Politics?''
And I will recognize myself for an opening statement.
On March 1, the sequestration deadline required that
certain Federal agencies and departments to reduce their budget
to avoid violating mandated spending caps established under the
Budget Control Act of 2011. The Office of Management and Budget
told them to ``reduce risks and minimize impacts on the
Agency's core mission in service of the American people.'' DHS
instead politicized sequestration by deciding to release
detained criminal and illegal immigrants that are a priority
for removal from the United States. This decision directly
contradicts ICE's mission to promote homeland security and
public safety through the enforcement of our immigration laws.
Those released by ICE include: illegal immigrants convicted
of or charged with theft, identity theft, forgery, and simple
assault; illegal immigrants who had been arrested and charged
with crimes because, under policy guidelines issued by the
Director, illegal immigrants who are charged with a crime are
not considered to be dangerous or criminal until they have been
convicted; repeat immigration offenders, despite memos issued
by the Director that these are enforcement priorities; and
recent border-crossers, also one of the Director's enforcement
priorities.
Among those released was an illegal criminal immigrant who
spent nearly 3 years in a detention center in Georgia.
According to the New York Times, this illegal immigrant became
an illegal immigrant when he overstayed a visa in 1991. He was
detained in 2010 when he violated probation for a conviction in
2005 of assault, battery, and child abuse, charges that sprang
from domestic disputes with his ex-wife. He was transferred to
ICE custody and has been contesting an existing order of
deportation for over 3 years now.
During oral testimony at House Appropriations last week,
Director Morton confirmed that the Agency released 2,228
detainees from detention. Of these, 629 were criminals and
1,599 were non-criminals.
However, Mr. Morton did not provide a breakdown of the non-
criminals. We do not know how many were charged with crimes but
not yet convicted, are absconders, had existing orders of
removal, or are criminal gang members. Additionally, Mr. Morton
did not think that any of the individuals released were
national security concerns.
Simultaneously, DHS claimed that all the released illegal
immigrants are at low priorities and have not committed serious
crimes. This is inconsistent with the fact that both Secretary
Napolitano and Director Morton have repeatedly indicated that
the Agency detains only ``the worst of the worst illegal
immigrants in light of their inability to detain, deport, and
remove all the illegal immigrants the Agency encounters based
on a lack of financial resources.''
Irresponsible decisions to release detained illegal
immigrants unreasonably and unnecessarily put the public at
risk. The question remains: Are these individuals being
released based on legitimate budgetary concerns or because
sequestration gave the Obama administration a political reason
to release deportable aliens? Surely other budgetary
considerations could have come first such as cutting
expenditures for conferences, detailees, or international
travel.
Releasing criminal and illegal immigrants on their own
recognizance provides them little incentive to report to
authorities and subject themselves to deportation. As we have
learned from hard experience, many of them will simply abscond
and become fugitives. Furthermore, recidivism rates are
extremely high for any incarcerated population. The Director
has already indicated that ICE has had to re-apprehend 4 out of
the 10 of those criminal immigrants released for more severe
crimes. To make matters worse, many of these individuals
released lack the money, family, support, and the ability to
get a job, not just because they are present in violation of
the law, but because they have a criminal record. This release
is a recipe for disaster that is irresponsible and unjustified.
Ultimately, these nonsensical actions demonstrate the
inability and lack of desire on behalf of the Administration to
enforce the law even against illegal immigrants convicted of
serious crimes. To make matters worse, they undermine the good
will necessary to develop a common sense, step-by-step approach
to improving our immigration laws.
At this time, it is my pleasure to recognize the Ranking
Member of the Committee, the gentleman from Michigan, Mr.
Conyers, for his opening statement.
Mr. Conyers. Thank you, Chairman Goodlatte.
Ladies and gentlemen of the Committee, the title of today's
hearing, the ``Release of Criminal Detainees by U.S.
Immigration and Customs Enforcement: Policy or Politics?'', is
really somewhat misleading.
First, we have learned at a recent hearing before the
Homeland Security Appropriations Subcommittee that 72 percent
of the people released had no criminal record at all. Another
21 percent had convictions for one or two misdemeanors only.
Unless Director Morton, whom we welcome here today, tells us
something different, this means that 93 percent of the people
released by ICE were non-criminals or low, low level offenders.
Second, the title of the hearing asks whether this was
motivated by policy or politics. From my investigations, I do
not believe it was either.
I do not believe it was policy because we have no reason to
think that someone sat down and decided to release thousands of
detainees without reason. Remember, this Agency over the past 5
years has consistently set deportation and detention records.
I also do not believe this is about politics. The
President's top legislative priority is enacting comprehensive
immigration reform. I share the President's goal. The American
people share the President's goal. And I know a growing
majority of Members of Congress support that goal. This
discussion does not advance that goal. So I do not see how it
could be motivated by politics.
So why did the Agency release more than 2,000 people from
custody in February? Based on what we have learned, it seems
that it was motivated by overzealous use of detention in late
2012, combined with poor communication between the people in
charge of ICE's budget and the people in charge of its
enforcement operations.
Why do I say that? Because ICE is funded by appropriations
to detain an average of 34,000 people per day over a fiscal
year. That comes out at a daily cost of about $122 per bed. But
from October through December of 2012, ICE regularly detained
well over 35,000 people per day. ICE nearly hit 37,000
detainees on some days. Not only did this mean ICE was paying
more for detention beds but it was paying more overtime, more
fuel costs for additional transportation, and more of
everything else required for detention. These secondary costs
brought the real cost of detention closer to $164 per person
per day and explain why ICE was maybe $100 million in the red.
ICE tried to put the brakes on all of that spending when
its chief financial officer figured out that the Agency was
burning through its money faster than its budget would allow.
In early January, the Agency was on pace to run out of money
for custody operations by March 9, more than 18 days before the
continuing resolution expired on March 27. ICE seems to have
had no choice but to release some detainees to bring its
spending in check.
And so I would like to put this in the record that we need
to really move with great care in terms of the assertions that
were made to me in this misleading title.
And I thank the Chairman for allowing me to make this
statement.
Mr. Goodlatte. I thank the gentleman from Michigan, and
without objection, the remainder of his statement and the
opening statements of all other Members will be made a part of
the record.
[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
The title of today's hearing, the--``Release of Criminal Detainees
by U.S. Immigration and Customs Enforcement: Policy or Politics?'', is
somewhat misleading.
First, we learned at a recent hearing before the Homeland Security
Appropriations Subcommittee that 72% of the people released had no
criminal record at all. Another 21% had convictions for one or two
misdemeanors only.
Unless Director Morton tells us something different today, that
means 93% of the people released by ICE were non-criminals or low-level
offenders.
Second, the title of the hearing asks whether this was motivated by
policy or politics, but I don't believe it was either.
I don't believe it was policy, because we have no reason to think
someone sat down and decided to release thousands of detainees without
a reason. Remember: this agency over the past 5 years has consistently
set deportation and detention records.
I also don't believe this is about politics. The President's top
legislative priority is enacting a comprehensive immigration reform. I
share the President's goal. The American people share the President's
goal. And I know a growing majority of Members of Congress support that
goal. This discussion does not advance that goal, so I don't see how it
could be motivated by politics.
So why did the agency release more than 2,000 people from custody
in February? Based on what we have learned, it seems this was motivated
by the over-zealous use of detention in late 2012 combined with poor
communication between the people in charge of ICE's budget and the
people in charge of its enforcement operations.
Why do I say that? Because ICE is funded by appropriations to
detain an average of 34,000 people per day over a fiscal year. That
comes at a
daily cost of about $122
per bed. But from October through December of 2012, ICE regularly
detained well over 35,000 people per day. ICE nearly hit 37,000
detainees on some days.
Not only did this mean ICE was paying for more detention beds, but
it was paying for more overtime, more fuel costs for additional
transportation, and more of everything else required for detention.
Those secondary costs bring the real cost of detention closer to $164
per person per day and explain why ICE was maybe $100 million in the
red.
ICE tried to put the brakes on all of that spending when its Chief
Financial Officer figured out that the agency was burning through its
money faster than its budget would allow. In early January, the agency
was on pace to run out of money for Custody Operations by March 9--more
than 18 days before the Continuing Resolution expires on March 27. ICE
seems to have had no choice but to release some detainees to bring its
spending in check.
Third, I want to remind everyone that Congress funds cost-effective
alternatives to detention for a reason. We should place good candidates
into alternatives to detention whenever possible and not just when we
are forced to do so by budgetary constraints.
It should tell us something that in a three-week period, Director
Morton identified more than 2,000 detainees who would not pose any
danger to the public if they were released.
Not one of these people was required by law to be in detention.
And, 93% were non-criminals or low-level offenders who probably never
served prison time for their criminal convictions. We need to ask
ourselves what they were doing in immigration detention in the first
place if cost-effective alternatives are at our disposal.
I hope Director Morton will explain whether it makes sense, from a
law enforcement perspective or from the perspective of fiscal
responsibility, to require him to keep a certain number of people in
custody on any given day.
We don't require the Bureau of Prisons to maintain a
minimum average daily population.
We don't require the U.S. Marshals Service to
maintain a minimum average daily population.
And I have yet to find a state or local law
enforcement agency that sets such requirements.
It makes no sense that we would require ICE to maintain a minimum
average daily population.
I hope we can reconsider this apparent mandate in the future and I
thank Director Morton for his testimony today.
__________
[The prepared statement of Mr. Gowdy follows:]
Prepared Statement of the Honorable Trey Gowdy, a Representative in
Congress from the State of South Carolina, and Member, Committee on the
Judiciary
Mr. Chairman, thank you for calling this hearing. There are several
things that have people vexed. This Administration claims it only
detains the ``worst of the worst.'' Recently, this Administration
released some detainees from detention claiming it did not have
adequate funding to exercise the preeminent function of government,
which is public safety.
So, initially we have to examine that oft-repeated Administration
talking point that it only detains the ``worst of the worst.'' If that
is true, it necessarily follows that some of those ``worst of the
worst'' were recently released.
Just so we are clear, the Administration claims it released
hundreds of detainees when in reality the Administration released
thousands of detainees. Some of those detainees released were Level 1
offenders, which means they were aggravated felons. Many of those
released were Level II detainees, which means they were repeated
offenders.
So against the backdrop of knowing that some ``worst of the worst''
detainees were released, including aggravated felons we must examine
who made the decision to release these detainees. Did Secretary
Napolitano make this decision? Did she know about the decision ahead of
time? Did she set the parameters of a danger assessment to decide who
should be released and who should not be released? If she didn't make
the decision herself precisely what kind of decision is important
enough that she would actually be aware of it. If releasing thousands
of detainees isn't worth troubling her with, what is?
Why were the releases ordered in the first place? Secretary
Napolitano contends she found herself between ``a rock and hard place''
so the only alternative was to release thousands of detainees. Frankly,
Mr. Chairman, that explanation strains credibility.
ICE was funded at the level to maintain 34,000 beds, which is
enough to avoid this recent detainee release. An additional $240
million was available that could have been used to detain these
aggravated felons and repeated offenders that were released. ICE could
have asked for permission to move money from less vital services to
more vital services. For instance, did ICE consider reducing funding
for training, for travel, for conferences, for printing, for
promotional materials, for government vehicles? Those are not my
suggestions Mr. Chairman. In the interest of giving credit where credit
is due, those were recommendations from the President himself.
Was releasing detainees really the only option at your disposal?
Couldn't cut anything else? Nowhere else to turn, nothing else to do,
except release detainees from custody?
I will tell you, Mr. Chairman, that it appears as if the decision
to release detainees was a political determination rather than a
monetary one. It appears as if the release of detainees was part of a
sequester campaign that included the fictional firing of teachers, meat
inspectors being laid off, the closing of the White House for tours and
now the release of aggravated felons. This is a concerted, curious
effort to persuade the public that nothing whatsoever could be cut in
government.
It would be advisable in the future Mr. Chairman if the time spent
trying to persuade the public that mayhem was about to break loose had
been spent figuring out how better to protect the public from mayhem
that was previously detained.
Today's witness, Director John Morton explained, that some of those
released were really low-risk detainees including those with drunk
driving convictions, theft convictions, and ``simple assault and
battery'' convictions.
I appreciate Mr. Morton's prior service as a prosecutor. I do. But
I disagree with any assessment of low-risk that includes recidivists.
For those of us that have had to explain to parents, or spouses or
loved ones, how a recidivist drunk driver was allowed back on the
street, back into a vehicle, back behind the wheel under the influence
of drugs or alcohol only to drive drunk again and kill or seriously
injure a member of the innocent motoring public. That isn't low risk.
Some of those released because of this public relations stunt gone
wrong are going to reoffend. Some are going to abscond and fail to
report for their removal hearing. There are going to be consequences
for this decision and today we are going to find out who made this
decision and why. Because public safety is the most important function
government has. And it should never be jeopardized for political
expediency.
__________
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Member, Committee on the
Judiciary
We have all read the recent stories about ICE's decision to release
varying numbers of detainees from custody in a short period of time. As
information began to percolate up from communities around the country,
we have heard many different versions of what happened.
Some stories suggested the detainees had already been granted bond
by an Immigration Judge, but had been unable to come up with the
necessary funds. Others said that thousands of detainees with criminal
convictions-and some with gang ties-were released without any regard
for public safety.
Last week we learned from Director Morton that 2,228 detainees were
released in February on account of budgetary constraints. 72% had no
criminal history, and an additional 21% had misdemeanor convictions
only. Director Morton testified then that to his knowledge none of the
detainees posed a danger to the public or had gang ties.
We also heard different stories regarding the budgetary constraints
that led to the releases. The first explanation that came out had to do
with the impending sequester. Secretary Napolitano recently testified
before the Senate that sequestration would mean a decrease in detention
bed space. That explanation is certainly plausible. Across-the-board
spending cuts that force us to take a thoughtless approach to our
spending with undoubtedly lead to cuts that are imprecise.
But as it turns out, that is not the whole story. Under the
continuing resolution that expires later this month, ICE is funded at a
level to sustain an average daily detainee population of 34,000. But
months into the current fiscal year, with the sequester looming, and
the expiration of the current CR on the horizon, ICE was exceeding its
average daily population by more than 2,000 beds per day. This means
ICE's detention bed costs--as well as the secondary costs of paying
officers, fuel charges, and the like--were outpacing the approved
spending plan.
ICE's Enforcement and Removal Operations (ERO) was burning through
its funds for custody operations at an unsustainable pace by early
January. Without reducing costs or raiding other accounts for
unobligated funds, ERO was looking at running out of money for custody
operations 18 days before the end of the CR.
So why didn't ICE reprogram funds to cover the shortfall created by
ERO's overspending? Director Morton testified last week that doing so
would have been like robbing Peter to pay Paul. Taking funds from
another account--such as the money budgeted for Homeland Security
Investigations--would have meant taking Special Agents off the streets
and interfering with their criminal investigations.
Faced with that reality, ICE officials decided on an approach in
which they would identify detainees for release. These detainees should
not be subject to mandatory detention, should not pose a danger to the
public, and should be released on orders of supervision or into formal
Alternatives to Detention programs.
As ICE was already far surpassing the 34,000 detention-bed average,
a temporary reduction in detainees would keep the agency on track to
meet that average by the end of the current fiscal year. That is what
ICE did.
ERO's detention efforts throughout the Fall and early Winter were
setting new records and were entirely unsustainable in light of the
CR--especially as the now-realized threat of the sequester loomed. They
had to reduce spending.
Aside from these reductions, I propose that we spend some time this
morning talking about the so-called ``34,000 detention-bed mandate''
that is a big reason for the controversy before us. As we know, our
appropriations acts now require ICE to ``maintain a level of not less
than 34,000 detention beds.''
There is some disagreement about the exact meaning of this phrase.
The agency and some appropriators believe this means that over an
entire fiscal year, the average daily population in detention must be
no lower than 34,000 beds. Other appropriators seem to believe this
means that on any given day, ICE must have no fewer than 34,000 people
in custody.
Either way, both sides see it as a mandate to keep people in
detention without regard to any other factors. To me, the requirement
has always meant nothing more than that at a given time, 34,000
detention beds must be available for use by ICE should the agency need
them. That is the clearest way to read the language itself, and it
makes more sense than any other interpretation.
From a law enforcement perspective--where detention decisions are
based on need, not arbitrary mandates--that would make a lot more
sense. The same is true if you were to think of it from the perspective
of fiscal responsibility. I suppose that is why the Heritage Foundation
encourages a much wider use of cost-effective alternatives to detention
for appropriate candidates.
Policy or politics? I don't really think it was either. Based on
what we now know, the releases were the product of poor budgetary
practices combined with the kind of record-setting enforcement efforts
that we have come to expect from ICE.
__________
Mr. Issa. Mr. Chairman?
Mr. Goodlatte. Yes?
Mr. Issa. I would ask unanimous consent that along with the
Ranking Member's insertion, that the order of the Office of the
President, the executive order of January 14, be placed in the
record next to it.
Mr. Goodlatte. Without objection, it will be placed in the
record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. We welcome our only witness today, Director
John Morton of U.S. Immigration and Customs Enforcement. And I
will begin by introducing him, but first, Director Morton, if
you would please rise and be sworn in.
[Witness sworn.]
Mr. Goodlatte. Let the record show that the witness
answered in the affirmative.
And we welcome you again. John Morton is Director of
Immigration and Customs Enforcement at the U.S. Department of
Homeland Security. Immigration and Customs Enforcement is the
second largest investigative agency in the Federal Government
and charged with enforcing the Nation's immigration laws and
investigating the illegal movement of people and goods into,
within, and out of the United States.
Prior to Director Morton's appointment by President Obama,
he spent 15 years at the Department of Justice and served in
several positions, including Assistant United States Attorney,
Counsel to the Deputy Attorney General, and acting Deputy
Assistant General of the Criminal Division.
Director Morton received a law degree from the University
of Virginia School of Law.
And, Director Morton, you are welcome to proceed with your
testimony.
TESTIMONY OF THE HONORABLE JOHN MORTON, DIRECTOR, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT
Mr. Morton. Good afternoon, Chairman Goodlatte, Mr.
Conyers, Members of the Committee.
While much has been made of ICE's recent reduction in
detention levels, the truth is that the reduction was a direct
result of ICE's efforts to stay within its budget in light of
the continuing resolution and the possibility, now a reality,
of sequester.
As the Committee knows, we do not have a traditional
appropriation for fiscal year 2013. Rather, ICE is funded
through a continuing appropriation at fiscal year 2012 levels
through next Wednesday, March 27, and we do not yet know what
Congress will provide ICE for the remaining 6 months of the
fiscal year.
Additionally, as of March 1, we are living under a
sequester of 5 percent of our annual funds, a reduction just
shy of $300 million. Thus, while the expiring CR provides ICE
budget authority to maintain an average of 34,000 detention
beds, sequestration has, in turn, reduced those same funds by 5
percent, a reduction that if left unchanged by Congress, will
affect ICE's ability to maintain our average daily population
going forward.
Despite these challenges, ICE continues to produce
impressive enforcement results. During the first 5 months of
the 6-month CR--that is, the portion without sequestration--we
were solidly on pace to maintain an average level of 34,000
beds. Indeed, on the last full week of that period, our average
annual daily population was 33,925 beds. Mr. Chairman, this is
the highest level of detention ICE has ever maintained over the
first 5 months of any fiscal year in history.
This comes on the heels of ICE maintaining 34,260 beds over
last fiscal year and having removed 409,000 illegal immigrants,
225,000 of whom were criminals, again the highest levels in all
categories we have ever achieved.
At times during this fiscal year, we have maintained well
over 34,000 beds due in part to increased support we have given
the Border Patrol along the Southwest border. On October 2,
2012, for example, we had an actual level of 36,036 beds in
use. With budget authority that only supports 34,000 beds, we
obviously could not maintain such highs over the year. So we
had to temporarily lower our detention to levels below 34,000
to ensure that at the end of the CR we remained within budget.
This need to lower our detention levels was heightened by
three factors.
First, two of the funds we use to maintain detention space
did not receive the funds expected. The Breached Bond Fund, in
particular, had a projected shortfall of $20 million for the
fiscal year.
Second, 4 months into the fiscal year on January 18, 2013,
we were maintaining an average daily excess of 630 beds over
34,000. Had we continued to operate at this level, we would
have faced a yearlong shortfall of $128 million.
Finally, our immigration enforcement expenses for
transportation and overtime exceeded our CR budget by $16
million.
In the context of a known full-year budget, we can usually
address these sorts of issues over the balance of the fiscal
year. This year, however, we only had 6 months of known funding
and uncertain levels thereafter. Therefore, ERO, in
coordination with the chief financial officer, decided to
temporarily reduce our detention levels at the end of the CR to
stay within budget. To do this, ERO released some detained
aliens to other forms of supervision on a weekly basis
throughout the month of February. Local ERO offices were
instructed to focus on aliens who were not subject to mandatory
detention and who did not pose a significant threat to public
safety.
Everyone released for budget reasons remained in removal
proceedings. From February 9 through March 1, on average, we
released over 700 aliens a week to this end. Contrary to some
reports, those released for budget reasons did not include
thousands of criminals who posed a significant risk to public
safety. Indeed, 70 percent of those released had no criminal
record at all. The remaining 30 percent were either
misdemeanants or other criminals whose prior conviction did not
pose a violent threat to public safety.
During this period, most of our field offices released on
average fewer than 15 detainees each week. Five larger offices
released an average of 92 detainees per week. In total, we
released 2,228 aliens over a 3-week period in February for
solely budgetary reasons, bringing our year-to-date detention
average on the last full week prior to sequester to 33,925,
99.8 percent of 34,000.
Of the 2,228 individuals released, 629 had a past criminal
conviction. 460 were level 3 offenders, our lowest
classification; 160 were level 2 offenders, our medium
classification; only 9 were level 1 offenders--excuse me--8. We
are reviewing all of these cases as they progress and will
detain or adjust the conditions of release as necessary.
Indeed, as the Chairman has already noted, there are only four
level 1 offenders on release.
In short, there are no mass releases of dangerous criminals
underway or any planned for the future, just efforts to live
within our budget. We will continue to do our level best over
the remaining 6 months of the year to maintain strong detention
levels, subject to the requirements of the sequester and
whatever funding Congress provides us at the end of the month.
Thank you.
[The prepared statement of Mr. Morton follows:]
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Mr. Goodlatte. Thank you, Director Morton.
I will recognize myself to begin the questioning.
Of the more than 2,200 detainees that have been released so
far, several hundred are criminal aliens who have been
convicted of crimes such as theft, fraud, and other crimes
perpetrated on people in our society. Was the decision to
release detained illegal and criminal immigrants a unilateral
decision made by you?
Mr. Morton. It was a decision made by the career officials
in the Agency, and in particular, Mr. Mead and our chief
financial officers. I support their decision completely, and to
the extent that your question asks was it made by anybody
outside of the Agency, the answer is a categorical no.
Mr. Goodlatte. Did you coordinate with any officials at DHS
headquarters in making the decision to release potentially
dangerous illegal immigrants?
Mr. Morton. None whatsoever.
Mr. Goodlatte. Do you even have the authority to act
unilaterally with respect to releasing thousands of detained
illegal immigrant aliens?
Mr. Morton. Well, first of all, the answer is yes. The
authority, by statute, rests with me and the officers of
Agency. In fact, other than the Secretary, we are the only
individuals in the department with that authority.
Mr. Goodlatte. And you are saying that a decision to
release 2,200 people for this purpose, whatever the purpose may
have been, whether it is to save money or for other reasons,
had no communications with the higher department to which ICE
is an agency that you report.
Mr. Morton. That is correct. These decisions were made
inside the Agency for budgetary reasons.
Mr. Goodlatte. I have in front of me a memorandum dated
December 8, 2010 that you submitted to Secretary Napolitano
under the subject matter, expanding expedited removal to felons
unlawfully in the United States, where you set forward the
purpose of making that request, the background for making the
request, your discussion about the request, and at the bottom,
your recommendation below which is a signature line for the
approval of the Secretary. Is that standard procedure for you
and others in agencies within the Department of Homeland
Security for making decisions regarding changes in policy at
the department?
Mr. Morton. That was a recommendation to the Secretary
about possible ways to streamline removal efforts, and that one
had to do with expedited removal. So that was specific.
Mr. Goodlatte. I understand, but why would the decision in
that case have required you to make that request of the
Secretary and the decision here to release onto our streets, as
opposed to the expedited removal and deportation, 2,200-plus
people? In fact, we have seen documents that suggest that the
plans are to release several thousand more onto our streets
without any approval from Secretary Napolitano.
Mr. Morton. The regulatory authority for expedited removal
is set by the Secretary, not by the Agency, unlike detention
releases. ICE has the exclusive detention authority within the
department.
Mr. Goodlatte. So you are saying that if you want to
increase the deportation of people outside the country and
expedite that, you have to seek the approval of the Secretary,
but if you want to release the same people back onto the
streets of the United States where they can commit more crimes,
you do not have to seek the Secretary's approval for that
purpose.
Mr. Morton. No, that is not what I am saying. I am saying
that if I wish to change the rules for expedited removal, I
have to go to the Secretary with that proposal. That authority
does not rest exclusively with the Agency. And that was about a
very specific statutory and regulatory power that is not held
exclusively by ICE.
Mr. Goodlatte. I understand that with the exception of
custody operations, ICE was operating under the presidential
budget, not at the budget set by Congress under the continuing
resolution. As a result, all the other accounts in ICE carried
a balance of $240 million for the year and $120 million for the
past 6 months. Additionally, your CFO indicated that ICE
carried forward $100 million to $120 million in user fee
balances.
Can you tell us why ICE did not ever submit a reprogramming
request to Appropriations which can be handled at the Committee
level rather than releasing detained illegal immigrants? Is it
not true that both ICE and DHS could issue reprogramming
requests to cover the costs of these released detainees?
Mr. Morton. We can seek reprogramming requirements. That is
absolutely true, Mr. Chairman. And we did not in this instance.
I am trying to live within the appropriations that Congress
gives us. Our single largest appropriation is for custody
operations. And we were trying to live within our budget,
recognizing that we had to go the full year. We did not have a
full-year appropriation. We only had 6 months. Sequester was
coming, and we play it very tight to the vest in every
operation that we did other than custody operations where it
was important enough and we operated at a level above what we
were appropriated for much of the fiscal year. And I did not
want to rob Peter to pay Paul. My view is that we need to
maintain the operations of the Agency. I do not want to
furlough people, and I need to make rational judgments across
the PPA's that we are given by the Appropriations Committee.
Mr. Goodlatte. The Appropriations Committee is very used to
dealing with excess expenditures necessitated by changed
circumstances and do respond and do respond quickly to those
requests.
But I am pleased that you acknowledged that you could have
done that and dipped into surplus funds from fees or from other
funds carried over from other operations of the department
rather than releasing criminal aliens onto our streets.
And I will ask unanimous consent to enter the following
documents in the record: a letter to Secretary Napolitano from
Senator Grassley and I requesting specific information on the
detainees released as a result of sequestration. We expect ICE
to respond to this request for information.
A letter from the Pinal County Sheriff, Paul Babeu, stating
that on February 23, 2013, Immigration and Customs Enforcement
processed and released 207 illegal immigrants from the ICE Eloy
facility in Arizona on this date alone. Of the 207, a total of
48 had been charged or convicted with either manslaughter,
child molestation, aggravated assault, weapon offenses,
forgery, drug offenses, or other serious crimes.
And third, a memo from Director Morton to Secretary
Napolitano requesting the expansion of expedited removal to
felons unlawfully in the United States, which I referred to
earlier.
Without objection, those will be made a part of the record.
[The information referred to follows:]
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__________
Mr. Goodlatte. My time has expired.
And I now recognize the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
The Agency, Director Morton, has been accused of releasing
thousands of detainees from its custody to score political
points in advance of sequestration. But based on what we have
learned over the past week, it looks more like ICE was forced
to tighten its belt beginning in January because it had been
spending excessively throughout the fall to detain thousands of
people more per day than its budget would allow.
Can you put some further explanation onto this assertion?
Mr. Morton. Yes, Mr. Conyers. Let me just start out by
setting the context here. There are about 350,000 people in
immigration proceedings at any given time. The vast majority of
those people are not detained, and that is by statutory design,
that is, congressional design. Congress has directed the Agency
to detain certain individuals by mandate. Those cases are known
as mandatory detention. There are certain criminals and certain
non-criminals that we must detain. And the rest of the system
is designed for consideration of release on conditions. The
Agency has that power, and it is also overseen by immigration
judges who may redetermine the Government's initial decisions
by ICE.
So the idea that, simply because a person is in the country
unlawfully or they have a criminal conviction, they are
detained is not true. In fact, the use of detention is the
exception to the rule, given the number of people that are in
proceedings. There are 350,000 people at any given time. We
have resources on the very best of days for about 34,000 to
35,000 people, and many of those people are not even in formal
immigration proceedings. They are border cases through
expedited removal.
So we have to manage our budget, and our levels go up and
down. Sometimes we are above 34,000; sometimes we are below.
Sometimes we do not have enough space to take a particular
person into detention, so we place them on an alternative to
detention, a bracelet, a monitor or they have to call in. They
are on an order of supervision. They have a bond. 150,000
people are on bonds right now in immigration proceedings. Some
of them have criminal convictions; some of them do not. And
that is by statute. That is by congressional design. It is
exactly like the criminal justice system. In fact, the
detention system for immigration actually has mandates that you
do not see in the criminal justice system.
Mr. Conyers. That is a very thorough explanation that I
find quite reassuring.
You have been doing an outstanding job as Director for how
long now?
Mr. Morton. I am about to come to the end of my fourth
year. I will be the longest serving head of the agency ICE has
ever had.
Mr. Conyers. Well, that is great.
Can you explain how during the months of October, November,
and December ICE was detaining 2,000 or 3,000 more people on
any given day than it could afford through its budgetary
circumstances to detain?
Mr. Morton. Yes, sir. So at the end of last year, we were
operating at a very high operational tempo, in large part
because one of the things I have tried to do: provide the
Border Patrol much greater detention support. And so, for
example, we are detaining on any given day 6,000 to 7,000
people in Texas for the Border Patrol, and we are then formally
removing them through the ICE powers instead of simply
voluntary returns.
That meant that at the end of the fiscal year, we were
operating at quite a high level of detention, 36,000. If we had
had full-year funding, we could have adjusted over time to make
sure that we ended the year at 34,000 on average using whatever
funds that we had. This particular year, we had a CR, and 2 to
3 months into that CR, it became clear that we were not going
to have a good sense of what the remaining funding would be for
the year, and it also became clear that sequester might, in
fact, be a reality for us. And we had to do, as you said, some
belt tightening. It meant releasing certain people so that we
could live within our budget.
Everybody remained in proceedings. Everybody is on some
form of supervision. Our intent is still to remove them from
the United States. We are reviewing all of the cases
continually. If we made a mistake or there are new
circumstances that suggest that somebody should come back into
our custody, they will. And as the Chairman has already noted,
we have made a handful of decisions already to return people to
our custody, both level 1 and level 2 offenders.
Mr. Conyers. Thank you very much.
I have been permitted one quick question as my time has
expired. But we are only a few days away from the end of the
CR, and we are more than 2 weeks into sequestration. Can you
tell us any more about your budgetary outlook today?
Mr. Morton. I cannot, Mr. Conyers. I obviously hope that
Congress passes a budget for ICE by March 27. I understand
where some of the concerns come from. I understand that people
wonder about some of the releases. I recognize that we are
dealing in an extraordinary circumstance, where we had a CR for
6 months. We have a mandate from Congress to have a certain
level of appropriated beds, and on top of that, we have a
sequester from this very same United States Congress that says
reduce your budget by 5 percent. And our single largest
appropriation of $2 billion is for custody operations.
The next largest appropriation we have is for domestic
investigations, and when I say domestic investigations, I mean
operations along the Southwest border to go after drug dealers,
alien smugglers, child pornographers, child exploitation. That
is when I talk about robbing Peter to pay Paul. These are very
real decisions that we have to make at the Agency, and we do
the very best we can in a circumstance where our funding is
uncertain at best.
Mr. Conyers. Thank you, Director Morton, and thank you,
Chairman, for the additional time.
Mr. Goodlatte. I thank the gentleman.
The Chair now recognizes the former Chairman of the
Committee, the gentleman from Texas, Mr. Smith, for 5 minutes.
Mr. Smith. Thank you, Mr. Chairman.
Director Morton, under the Immigration and Nationality Act,
aliens not subject to mandatory detention may be released on
bond if, one, they do not pose a danger and, two, are likely to
appear for any future proceeding.
In addition to immigration law, you have the Office of
Management and Budget directive to avoid actions that would,
``raise life, safety, or health concerns.''
Under the document you gave us marked ``sensitive
material,'' you say that you released 629 individuals in the
criminal category. 159 of those individuals had either been
convicted of or charged with a felony or multiple misdemeanors.
Do you not consider those individuals to be a threat to the
safety of the American people?
Mr. Morton. I am, obviously, concerned about people who
engage in criminal offenses in the United States while here
unlawfully. That is why I have placed----
Mr. Smith. But are the individuals who have been charged or
convicted with a felony or multiple misdemeanors not a threat
to the American people?
Mr. Morton. That is too simple a representation. If I
might, Mr. Smith, let me give you a real example of one of the
level 1 offenders we have released.
Mr. Smith. No. You are changing the subject on me. Do you
want to answer my question or would you prefer not to?
Mr. Morton. It depends on the case. Generally speaking, I
think that criminal offenders should be the Agency's highest
priority, but people have different circumstances. If you have
a 40-year-old conviction, then that is different.
Mr. Smith. Let me answer the question--let me answer the
question on behalf of the American people. I think the American
people think that your releasing individuals convicted or
charged with a felony or multiple misdemeanors is a threat to
their safety.
Now, these individuals whom you did release--did they all
post bond?
Mr. Morton. Not all of them. The law allows us to release
people on various types of supervision.
Mr. Smith. What percentage were released on bond?
Mr. Morton. I do not know the percentage. We are working to
have an exact breakdown. We put about 180 individuals on the
highest form of release, which is alternatives to detention.
Mr. Smith. I understand that.
Let me follow up on a point that the Chairman made a while
ago and that was his question about why you did not use the
user fees in your reserve account which amounts to tens of
millions of dollars and why you did not request from the
appropriators the permission to reprogram. Your response was
you wanted to live within your budget. But that does not have
anything to do with living within your budget. If you redirect
those funds to prevent you from releasing these individuals,
you would still live within your budget. You are not asking for
more money. You are just asking to transfer money from one
department or account to another, and I do not understand why
you did not do that if that would have enabled you to--
prevented you from having to release these, I would call it,
dangerous individuals.
Mr. Morton. So there are two issues. There is one using the
funds that we were appropriated, and then the user fees of some
unobligated balances.
Mr. Smith. Right.
Mr. Morton. We are----
Mr. Smith. Whether you spend those fees or not has nothing
to do with whether you balance your budget. That is the point.
You could have used those fees and still claimed to balance
your budget.
Mr. Morton. No. We could have sought a reprogramming from
the Committees.
Mr. Smith. Why did you not?
Mr. Morton. Because as I said, we want to live within the
budget we were given. Our goal----
Mr. Smith. But even if you had used those other funds, you
would have been living within the budget and you might have
done a whole lot to protect the American people from dangerous
individuals.
Mr. Morton. No. I did not want to rob Peter to pay Paul
from within the Agency's budget.
Mr. Smith. Yes, I know. But that is my point. You are
taking from one and putting it to another. That is not spending
additional money. Robbing Peter to pay Paul is not going
outside your budget. It is using the same amount of money. But
we are going to disagree on that. I just think that you did not
actually answer the question.
Last year, you all requested, I think, detention beds for
1,200 fewer than Congress provided. If you need more detention
space, why did you not request more detention beds?
Mr. Morton. So the President's budget asked for 32,800
detention beds.
Mr. Smith. Right. Congress provided 1,200 more, the 34,000.
Mr. Morton. And it also asked for an increase in
alternatives to detention with language that would have allowed
us to go back and forth, and supplement the hard beds, if we
needed.
Mr. Smith. If funding were not a consideration, how many
detention beds could you use?
Mr. Morton. Well, funding obviously is a consideration. We
are at the highest level we have ever had----
Mr. Smith. I know. The question was how many would you need
if you wanted to provide total safety to the American people.
Mr. Morton. I am not trying to be difficult. You can only
answer that question if you factor in alternatives to detention
and how quickly can we move people through the system.
Mr. Smith. No, that was not my question. Do you have any
idea, any concept of how many beds you would need if you were
to satisfy all demands?
Mr. Morton. If I were to satisfy all demands----
Mr. Smith. Legitimate demands.
Mr. Morton. If I were to satisfy all demands, you would be
looking at an ICE with a budget that would be unsustainable. As
you and I know----
Mr. Smith. No, no. How many beds would you need?
Mr. Morton. How many beds would I need to detain and remove
11 million people from the United States or more?
Mr. Smith. No. That was not my question. How many do you
need to do to fulfill your job. In other words, you have
34,000. How many more would you need?
Mr. Morton. I mean, again that begs the question of what is
my job and is my job to remove every single person who is here
in the United States----
Mr. Smith. Mr. Chairman, I do not think I am getting a
direct answer. So I am afraid I will have to yield back.
Mr. Goodlatte. The gentleman yields back.
At the beginning of the hearing, I was not under the
impression that the Chairman of the Subcommittee on Immigration
and the Ranking Member had opening statements. In fact, they
did and they both graciously agreed to put those in the record.
But I wanted to jump ahead to recognize them in thanks for
their forbearance on their statements. So I will now recognize
the gentlewoman from California, Ms. Lofgren, for 5 minutes.
Ms. Lofgren. Well, thank you, Mr. Chairman, and I agree
that it was more important to go directly to the testimony than
to hear our opening statements.
I think part of the problem here, the confusion was the
Secretary of Homeland Security's statement, and I think the way
it was taken was not that there was an overspending problem in
the custody element but that somehow this was in reaction to
the discussion of sequester. And then people felt, well, you
know, we are being threatened, and if we go through sequester,
then this will happen. And it just created a very bad
impression. And I think that is part of what we are trying to
deal with here, a misimpression that was created by that
statement.
If I understand--the Appropriations Committee gets, I
think, almost constant reports on how many people are in
detention and removal, and we have access to them as well. They
give the number of people in custody who have gone through the
system, not just the people who are in custody at midnight,
which I think reflects the numbers that you gave to us in
looking at this. And I would ask unanimous consent to put these
into the record.
Mr. Goodlatte. Without objection, so ordered.
[The information referred to follows:]
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__________
Ms. Lofgren. For example, for September 30, it was 35,271.
For October 31, it was 36,233. So as a matter of fact, you
could go through. It was in excess of 34,000 every single day
there was a report. And so it looks to me like you had an
overspending problem that needed to be corrected.
Here is the question. In our use of alternatives to
immigration detention, is our standard substantially different
than what is being used in State courts with people who are
actually arrested for crime? For example, in Santa Clara
County, we release people on ankle bracelets all the time
because we need them to appear and the failure to appear rate
is low. Is our standard much different than a locality?
Mr. Morton. It is not. We have a system that Congress has
designed that operates just like the criminal justice system.
There are decisions that have to be made as you go through
immigration proceedings which, by the way, are not penal. They
are administrative--as to whether or not someone should be
detained. The Agency has a fair amount of discretion to set
that initially, and then it is reviewed by judges, just as in
the criminal justice system, who can set bond, can order you
released, and in fact, do. That is the norm of the system is
most people are released.
Might I just say one thing on your comment with regard to
the Secretary?
Ms. Lofgren. Sure.
Mr. Morton. The Secretary was talking about the potential
effects of sequester. Obviously, that was a consideration for
us. She was entirely correct in suggesting that sequester would
have a significant effect on our ability to maintain the
detention levels that had been appropriated to us. And again, I
think she was trying to express the real concern----
Ms. Lofgren. Well, if I may, I am not suggesting any ill
motive on her part. I just think the way it was reported
created a lot of suspicion, and that is why we are here trying
to dispel those suspicions if there are facts to support that.
You know, one of the things that I am mindful of--we know
from the Department of Justice that the single most common
Federal felony prosecution in America today--what do you think
it is? It is not drugs. It is reentry after removal. That is a
felony conviction. And it is the most commonly prosecuted
Federal offense in the system. Obviously, we are not for people
reentering after removal, but if that is the felony conviction,
it certainly poses a different type of concern than if somebody
is convicted of a crime of violence or something of that
nature.
Do you have the stats on if there were felons released, was
it reentry after removal? Do you have the data on that?
Mr. Morton. We do. There were some immigration offenses,
though not many. Most of the level 2s were either multiple
misdemeanants or non-violent felons who did not qualify for an
aggravated felony. Even of the four level 4s that are on the
street, Ms. Lofgren, they are cases that are really
challenging. I tried to give Mr. Smith an example and if I
might give you an example.
One individual who was released in Arizona has a conviction
for theft offenses and drug offenses, and at first glance you
might say, okay, what is ICE doing? That individual is 68 years
old. They are a lawful permanent resident, and they have been a
lawful permanent resident for 44 years, and an immigration
judge made a determination that that person was not a danger to
the community. And that just goes to show you these are hard
calls that have to be made on a case-by-case basis, and that is
exactly what we have done.
Ms. Lofgren. Alright.
Just one final question. The fee account has been
mentioned, and you indicated you did not want to rob Peter to
pay Paul. What use are those fees going to be made to, and
could you not have taken the Operation in Our Sites funding and
put it instead into detention?
Mr. Morton. So two things are going on. When I say that I
do not want to rob Peter to pay Paul, I do not want to look to
the other large appropriations to maintain detention funding
above and beyond the appropriation that is given to us. Why?
For very simple reasons. Our biggest appropriation is custody
operation. Our second biggest appropriation is domestic
investigation. And to put that into context, that means going
after child pornographers, drug dealers, alien smugglers,
export control violations, and that is an important part of the
Agency's work.
Ms. Lofgren. So you could have gone after the Operation in
Our Sites funds.
Mr. Morton. I could have moved funds from our
investigations, including those that you had some concern
about. Yes, I could have. I did not elect to do that.
The user fees are historical unobligated balances, and we
are considering how to deal with that. They have certain
restrictions on how they can be spent. They are not dedicated
solely to detention funding, and that is something that we want
to explore.
Ms. Lofgren. I see my time has expired. I thank the
Chairman and yield back.
Mr. Goodlatte. I thank the gentlewoman.
And the gentleman from South Carolina, the Chairman of the
Immigration Subcommittee, Mr. Gowdy, is recognized for 5
minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Morton, I will tell you from this vantage point, it
does look like the decision to release detainees was a
political determination and not a monetary determination. It
appears to me that the release of detainees was part of a
sequester campaign that included the fictional firing of
teachers, the closing of the White House for student tours, the
displacement of meat inspectors, and now we are going to
release some aggravated felons onto the street.
Now, I have counted six times you have said you did not
want to rob Peter to Paul. I do not want Peter or Paul to rob
one of our fellow citizens because you guessed wrong on who to
release.
So what is a level 1 violator?
Mr. Morton. A level 1 offender--first, I obviously disagree
with your characterization about these being political----
Mr. Gowdy. Well, that is fine. You can use your time to
disagree with my characterization. Do not use mine.
What is a level 1 violator?
Mr. Morton. With regard to level 1 offenders, they are
aggravated felons, as defined by Congress.
Mr. Gowdy. And how many were released?
Mr. Morton. There are four presently.
Mr. Gowdy. How many were released?
Mr. Morton. Eight were released. We have four presently.
Mr. Gowdy. And what went wrong with the other four?
Mr. Morton. What is that?
Mr. Gowdy. Why were there eight released and only four
currently?
Mr. Morton. So two were released when the computer records
were not correct, and we went back and we looked at them and we
brought them back in. One was a mistake.
Mr. Gowdy. What kind of mistake?
Mr. Morton. Just where the instructions to the field were
not carried out correctly.
Mr. Gowdy. Alright. So if it is $122 a day to house four
level 1 aggravated felons, then releasing them saves you what?
About $600 a day?
Mr. Morton. Each day. That is right.
Mr. Gowdy. You cannot find $600 anywhere else in your
budget?
Mr. Morton. We make determinations on a case-by-case basis.
We have got to----
Mr. Gowdy. Can you find $600 somewhere else in your budget?
Mr. Morton. The question is whether that $600 is well spent
on those people or someone else, and when it comes to somebody
who has been a 44-year lawful permanent----
Mr. Gowdy. I am not talking about the 44. Was he a level 1?
Mr. Morton [continuing]. And they are 68 years old----
Mr. Gowdy. Was he a level 1? Was he a level 1, Mr. Morton?
Mr. Morton. He is a level 1 offender.
Mr. Gowdy. He was one of the four that you released?
Mr. Morton. Yes, he is released. That is right.
Mr. Gowdy. Mr. Morton, who made the decision to release
detainees as part of your effort to comply with sequestration?
Mr. Morton. The determination was made by Mr. Mead, the
Executive Associate Director for Enforcement and Removal
Operations, in consultation with the chief financial officer.
Mr. Gowdy. Who is John Sandweg?
Mr. Morton. Mr. Sandweg works for the Secretary.
Mr. Gowdy. Were there any conversations with him?
Mr. Morton. Not that I am aware of.
Mr. Gowdy. Were there any conversations with the Secretary?
Mr. Morton. Not that I am aware of. I think the Secretary
has noted that she was surprised and regretted the timing of
notification, and I agree with that.
Mr. Gowdy. If the release of aggravated felons does not
rise to the level of something that the Secretary of the
Department of Homeland Security should know about, what does
rise to the level?
Mr. Morton. Listen, we release people every day, and the
idea that we are going to review every single person that is
released----
Mr. Gowdy. Do you release thousands of people every day?
Mr. Morton. We release thousands of people every month. We
operate in a system--we had 470,000----
Mr. Gowdy. But you do not blame it on sequestration, do
you, Director Morton?
Mr. Morton. What is that?
Mr. Gowdy. You do not blame it on sequestration when you
release the others. It is not part of this strategy to get the
public fired up that mayhem is upon us, that we are closing the
White House for tours, that we are firing teachers in West
Virginia. We are going to have to release level 1 aggravated
felons because of sequestration.
Mr. Morton. First of all, that was never said. And the
system allows for the release on supervision of people going
through immigration proceedings. We are not detaining people
for penal reasons, solely for purposes of removal. And as I
have said, the vast majority of people in proceedings by
statutory design are not mandatory detention----
Mr. Gowdy. Who are level 2 violators, offenders?
Mr. Morton. They are either multiple misdemeanants or
felons that Congress has defined as something other than----
Mr. Gowdy. And DUI would be a misdemeanor. Right?
Mr. Morton. DUI----
Mr. Gowdy. First offense? How about second offense?
Mr. Morton. It depends on State law, but most times----
Mr. Gowdy. Well, how about the States where you release
people? Did you release any recidivist drunk drivers?
Mr. Morton. Yes.
Mr. Gowdy. How many?
Mr. Morton. I do not have the exact number, but we have
released many individuals who had DUI offenses.
Mr. Gowdy. Repeat offender DUI.
Mr. Morton. Repeat offender DUIs. Most of them were single
offenders, but some would be DUIs. I would note for the record,
Mr. Gowdy, Congress has not provided that a DUI is a ground of
removal. In fact, most misdemeanors are not a ground of
removal. It is the Agency, by Agency policy, that factors that
in. I cannot order you removed for having committed a DUI----
Mr. Gowdy. No, you cannot, Director, but you certainly can
request a programmatic rescheduling so you can move money
around. And this notion that you do not want to rob Peter to
pay Paul--you could have easily done that. You could have found
$600 to keep these level 1 violators from being released and do
not act like you could not have.
With that, Mr. Chairman, I would ask unanimous consent to
move in a document titled ``Addressing CR Issue through March
31st and Sequestration'' from U.S. Immigration and Customs
Enforcement.
Mr. Goodlatte. Thank you.
Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. The Chair now recognizes the gentleman from
Virginia, Mr. Scott, for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Director Morton, there is a belief around here that budget
cuts have nothing to do with your ability to perform your
responsibilities. In fact, tax cuts have nothing to do with the
budget. And so you have to just work with us on this.
Is there an appropriate ratio for safety between staff and
detainees?
Mr. Morton. Yes.
Mr. Scott. And if there is a budget cut, how does that
affect that ratio?
Mr. Morton. Well, obviously, we have to maintain the
facilities with the appropriation that we have. Were we to
furlough individuals, that would affect our ability to
apprehend and detain and remove people safely. I have indicated
that my intention is to not furlough any of our officers.
Mr. Scott. Well, if you have less budget, you will have
less people, and therefore, you can retain fewer people. Is
this arithmetic?
Mr. Morton. It is. The basic arithmetic is the single
largest appropriation that Congress gives us is for custody
operations, and the sequester directs us to take a 5 percent
cut to that custody operations. That is roughly $110 million.
And I cannot find that level of resource----
Mr. Scott. Well, I think what some are trying to tell you
is that you can maintain a ratio with less money. But if you
have less money, you have less people, and therefore you can
detain fewer detainees. And we are talking arithmetic. It is
not philosophy.
A lot of the focus on the people released has been on their
prior offenses. Can you explain to me what the recidivism
rate--what the crime rate for those who have been released has
been?
Mr. Morton. So far, I am not aware of any recidivism.
Obviously, we are reviewing all of these cases. We maintain----
Mr. Scott. Excuse me. Of all the people you have released,
how many crimes have been committed?
Mr. Morton. None that I am aware of so far. Obviously, it
is a short period of time. We constantly review that.
Mr. Scott. Well, criminal courts let people out on bail,
and obviously some commit crimes. But you are unaware of any
that have committed crimes?
Mr. Morton. Out of these 2,228, no. Listen, Mr. Scott,
obviously we release people every day on some form of
supervision. The statute provides that. Can I promise that
every single one of those people is going to behave all year
long? I cannot. We make the best judgments that we can.
Mr. Scott. You cannot do it any more than a criminal court
can promise that people let out on bail----
Mr. Morton. Of course, not. I was a Federal prosecutor for
many years before I came to the immigration enforcement
business, and the exact same decisions are made. In fact, the
immigration law is a little stronger. We have mandates in
immigration law where in the criminal justice system there are
only presumptions for certain detention cases.
Mr. Scott. A suggestion has been made that your travel and
entertainment budget would be sufficient to offset some of
this. How much is your budget for travel and entertainment?
Mr. Morton. It is a tiny fraction of what would be
necessary to cover this.
Mr. Scott. So you could not cover these expenses by
reducing travel and entertainment?
Mr. Morton. No. And we are doing that as part of the
sequester. We have gone to mission critical only. No
conferences. Our training is mission critical. The entire
budget of the Agency, outside of domestic investigations and
ERO, is $633 million, out of $5.8 billion. The math simply will
not work with that remainder.
Mr. Scott. And you have talked about a 68-year-old. Is the
cost of detaining a 68-year-old, including health care, more or
less than the average $122 a day?
Mr. Morton. Well, I would say I do not know this particular
68-year-old, but generally speaking, obviously we have some
additional health considerations with people who are older.
Mr. Scott. Thank you, Mr. Chairman. I yield back.
Mr. Goodlatte. I thank the gentleman.
The gentleman from Alabama, Mr. Bachus, is recognized for 5
minutes.
Mr. Bachus. Thank you.
Director Morton, one thing that disturbs me is this thing
that I was supplied by ICE. It says, detention release is
solely for budget reasons. Why would it not say detention
reasons based solely on national immigration detention policy?
Mr. Morton. We are trying to be clear and accurate with
everybody as to the releases that were for budget reasons only.
We are releasing people all of the time, and I do not want
people to think that we are mixing in people one way or the
other. Again, the system calls for release every day.
Mr. Bachus. Okay. My point is this says that these 2,600
individuals were released solely for budget reasons.
Why would you have not looked at 26,000 individuals in
detention and found--it could have been 10,000 that you could
have released? I mean, you should never release someone for
budget reasons, solely for budget reasons. Would you not agree
with that?
Mr. Morton. No. We have to manage our budget every year.
Mr. Bachus. Something more important than budgets is the
immigration detention policy. I mean, that is what you are here
to enforce, not to incarcerate people. You are here to try to
determine how many people should be detained.
Mr. Morton. No. My principal job is, on the immigration
side--and people forget that there is a lot about ICE that is
not about immigration enforcement. But focusing on the
immigration enforcement, my job is to do the best I can to
remove people who are here unlawfully from the United States,
not to detain them, to remove them.
Mr. Bachus. Right, okay. I think the immigration policy of
the United States is to--as far as detention goes, is to detain
people where there is not a reasonable alternative. Would you
agree with that?
Mr. Morton. Generally, that is the way the statute is set
up.
Mr. Bachus. Or you mentioned mandatory detentions also. But
out of that 26,000--what I am saying you said these detention
releases were made for budget reasons, and there is really no
threat to public safety as a result of those.
Mr. Morton. I said that----
Mr. Bachus. Or very little.
Mr. Morton [continuing]. We focused the releases on those
people that we felt posed the least--the threat to public
safety was not a significant risk.
Mr. Bachus. But why?
Mr. Morton. But what you are getting at is--if your
question is do I have enough people, do I have enough resources
to detain and remove 11 million people, the answer is no.
Mr. Bachus. No, no. My question is perhaps are you
overusing detention.
Mr. Morton. At the beginning of the year, we were
maintaining a higher level of detention than we were
appropriated for over an annual----
Mr. Bachus. No, no. Let's not talk about dollars and cents.
Let's talk about individuals who are being detained. Surely
instead of doing a cost analysis, why do you not do a risk
assessment on that population, those being detained? How many
of them could be released to family members? How many of them
periodically would check in, even some maybe GPS? Although I
would think that there are ties with the United States. You
know, we have got some that have been adopted as children. I do
not think they are going to run away. Are some of those
mandatory detentions that you could recommend to Congress they
not be?
I am just saying it looks to me like maybe there is an
overuse of detention by this Administration. Now, I know that
totally--would you agree? Okay. If these people are not public
safety risks, if they are not violent, if they do not have a
criminal history, if they are not repeat offenders, if they are
going to show up for proceedings, why are they detained at all?
I mean, surely out of this 26,000, you could have found 3,000
or 4,000 that--are there not 3,000 or 4,000 that would not----
Mr. Morton. I think your basic sentiment, which is
detention should be made based on risk of flight and----
Mr. Bachus. Well, public policy, and that ought to be risk
of flight, you know, violent offenders. I consider DUI's--I
would say DUI.
But what I am saying--this almost to me is that you are
saying we have got too many people in detention.
Mr. Goodlatte. Would the gentleman yield?
Mr. Bachus. Yes.
Mr. Goodlatte. In the report prepared by the Committee
staff, there is a statistic in there that shows that 770,000
people who were released did not return for their deportation--
--
Mr. Bachus. I understand that, but I would say this. You
could look at most of those people and there are predictors of
whether you----
Mr. Goodlatte. We are trying to deport them. If you release
them and they never show up for their deportation proceeding,
they are probably not getting deported.
Mr. Bachus. Well, what I am saying--and I am not arguing,
but if I accept--and I think most of these people are probably
not going to go back. If they do go back, they are coming back
legal or illegal.
What the Chairman is saying is that 40 percent of those
people that are not detained in the first place do not reappear
for their removal hearing. And you know, include someone that
does not show up--you know, maybe detain them. But if they were
never released or if they were released and showed back up and
they are not a flight risk and they are not a threat to public
safety--and I will go to budget now--why are we spending $164 a
day on it? I am just saying----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Bachus. This maybe is not the message here, but maybe
there is an overuse of detention.
Ms. Lofgren. Would the gentleman yield?
Mr. Goodlatte. The time of the gentleman has expired.
The Chair recognizes the gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Let me thank you very much to the Chairman
and Ranking Member for this informational hearing.
Director Morton, I have always thought of your basic
commitment to the security of this Nation and might I say that
I appreciate the work that your office does, the work that you
all do in Washington, D.C. And I know that if I might use a
certain American phraseology, you are caught between a rock and
a hard place.
So I would like to pointedly just restate what I thought
you said and that is you are responding to the sequester, which
is an across-the-board 5 percent cut, which resulted in $110
million that you had to address, and that most of your
appropriations comes into the custodial appropriations.
So I am going to answer my own question. Then I am going to
pose it to you. Obviously, we need a policy change that
balances the responsibilities of ICE between custodial and
other work, which then generates the employment or the FTE's
that you may need to do other things, human trafficking, issues
that I am very interested in.
But I also appreciate the fact that in the recent order of,
I guess a year, the executive emphasized to your office to
prioritize individuals who could be, in essence, at a lower
priority for detainment.
So when we mention this issue of detaining persons, I think
it is important to note that you are following a policy
supported somewhat by law that either Congress has set over the
years through immigration policy. I think that should be clear.
So let me ask some specific questions. One, there are about
771 that you released in the State of Texas, 240 in Houston.
Can you give me a sense of what the offenses of those
individuals were? It is my first question. I will let you
answer that, along with any comment on the policy. And I am
going to interrupt you because I have some other questions if
you do not mind. Thank you.
Mr. Morton. On Houston, there were 134 non-criminals and
then there were no level 1 offenders whatsoever in Houston or
the State of Texas. That is true for almost every State
represented here today. In fact, that is true for most level 2s
as well. In Houston, we had 59 level 3 and 47 level 2.
With regard to your comment on the policy and the statute,
you are right. At any given moment, about a half to two-thirds
of the people that we detain are mandatory detention. Congress
has just told us people in these categories must be detained.
And the rest are discretionary. And that has largely built up
over time to be a policy focused on criminal offenders, recent
border entrants, or people who have seriously gamed the system.
Again, you have to look at people's individual
circumstances. It is why immigration enforcement is so
challenging. It is very easy to make simple statements about
non-criminals, simple statements about criminals. But then you
realize sometimes a criminal can mean somebody who is 28 years
old and they have committed a terrible sexual assault, and
sometimes it can mean somebody who is 68 years old, has been
here for 44 years, is a lawful permanent resident, people who
have children. And that is why it is challenging, and our
officers have to make those decisions every day, the best they
can on the facts they have, and you cannot make sweeping
generalizations or determinations either by statute or by
policy.
Ms. Jackson Lee. Well, the question has become bipartisan,
Director Morton, on this issue of whether we are detaining too
much. I appreciate both the Chairman and the Ranking Member, I
am going to offer that we do a bipartisan bill that further
assists you in codifying what was done by an executive order
because my next line of questioning is, as someone who deals
with these issues, I am concerned about detaining people that,
frankly, obviously are being hurt.
For example, a young man by the name of Marco--and I would
like to get a response--was someone who was held for 4 months.
He was innocent. Nothing more than he was someone who came here
and not being documented, had not done any offense. He was
here, left behind. His father was deported. He was the only
support for his family. He is being held. We spent 4 months
holding him. No offense, nothing.
Another woman was a victim of domestic violence, and she
had been denied asylum and refugee status. We held her while
she was trying to get bond counsel.
My question to you is--as you well know, the American Civil
Liberties Union are in our offices about these individuals.
They are probably level 0 to a certain extent in terms of not
being offensive.
Can you just tell me how you can work better on these kinds
of cases and work better with the ICE regional offices which,
with all of their great service, sometimes detains, detains,
detains?
Mr. Morton. I am happy to look into the two particular
cases, and I will ask the staff to do that.
The broader challenge is using the resources that Congress
gives us for detention as wisely as we can. And a big part of
the answer, frankly, I think is comprehensive immigration
reform. You are right. The Agency is between a rock and a hard
place a lot of times. We are charged with removing 11 million
people from the United States and that number is obviously
beyond our capability and appropriations to carry out, and for
many of the very long-term residents, frankly it does not make
any sense either as a matter of policy.
So what do we do? We take the appropriations that we get,
which is enough for about 400,000 removals a year, and we try
to focus those removals as best we can on priorities that make
sense for the country.
Mr. Goodlatte. The time of the gentlewoman has expired.
Ms. Jackson Lee. Thank you.
Mr. Goodlatte. We have a vote pending, but we are going to
try to get one more question in, and so the Chair recognizes
the gentleman from Virginia, Mr. Forbes, for 5 minutes.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Morton, you have testified that the decision to release
this 2,228 individuals was yours and yours alone, that you had
no suggestion, conversation, memo, order, or communication of
any kind from anyone outside the Agency. Is that your testimony
here today?
Mr. Morton. That is right.
Mr. Forbes. Once you have made a decision of that
magnitude, did you communicate that to the Secretary, anyone on
behalf of the Secretary, to OMB, anyone working for OMB, or
anyone at the White House or working for the White House after
that?
Mr. Morton. No. The----
Mr. Forbes. Just yes or no, Mr. Morton. I do not have much
time.
Mr. Morton. The answer to that is no. And I have said I
regret both with regard to----
Mr. Forbes. That is alright. I just need the facts on that.
The other thing that Mr. Gowdy pointed out, the reason this
is so suspicious is not just the act, but the timing of the
act. We know that OMB had issued gag orders on many agencies
not to talk about sequestration. We know the Department of
Defense had that. And you issued this decision in February when
the campaign to talk about sequestration was undertaken by the
President.
But I want to take you back to December and November of
2012. You bragged about the fact you have been there for 4
years. As you know, sequestration was passed in August of 2011.
You had a year or so to look at that. Every mathematical fact
and statistic that you have would have been exactly the same in
November and December. In fact, no one in this room knew that
sequestration was going to be postponed from January 1 to March
1 until January 1.
Why did you not make this decision in November or December
of last year?
Mr. Morton. First of all, the principal decisions were made
by the career officials. It was not my personal decision.
Mr. Forbes. Why did they not make them in November or
December of last year?
Mr. Morton. I supported and approved this decision, but the
decision itself was made by the people who run----
Mr. Forbes. But why did they not do it last year? All the
same statistics, all the same monetary budgetary issues,
everything was present last year that was present in February
of this year, and yet you waited to February to make that
decision.
Mr. Morton. Where are we? We are at an average of 34,000
beds.
Mr. Forbes. You were at the same averages last year.
Mr. Morton. That is right, but it goes up and down all of
the time.
Mr. Forbes. No, no. But that projection was the same last
year. You are not in a cyclical point in December where you
could not project this was going to be the same kind of
forecast, could you?
Mr. Morton. Last year, we had a full-year appropriation----
Mr. Forbes. I am talking about December of last year, Mr.
Morton. You had the same exact appropriations that you are
looking at now.
Mr. Morton. December of the fiscal year prior to this one.
Mr. Forbes. Of 2012. Let me move on because the bottom line
is you do not have an answer for that.
Let me ask you this question and see if you have an answer
for this one. On the individuals, this 2,228 people you
released, were any of them members of a violent criminal gang?
Mr. Morton. I think there are two cases, at least one that
I know of, that when we went back and looked at the
information, there was a gang affiliation. That person is----
Mr. Forbes. Do you ask the individuals that you are
detaining whether they are members of a violent criminal gang
or not?
Mr. Morton. We try wherever we can to----
Mr. Forbes. No, no. That is not my question. I mean, is
that part of your questioning? Do you have that information on
the people that you released?
Mr. Morton. I do not know if we ask each and every person
we detain.
Mr. Forbes. So then you cannot really answer for the 2,228.
All you can say is that you know that two of these individuals
had a gang affiliation, but you do not know whether any of the
other 2,228 had a gang affiliation or not?
Mr. Morton. I cannot speak to every person we detain. No, I
cannot.
Mr. Forbes. So then it is possible that we released someone
who was here illegally who had been charged or convicted with a
crime and could have voluntarily been part of a violent
criminal gang. You would not know that.
Mr. Morton. On the convictions, yes, we would.
Mr. Forbes. I said charged or convicted.
Mr. Morton. Yes. So I am saying on convictions, we would.
On just general gang affiliation, I cannot say that we would
know----
Mr. Forbes. Let me ask you this question. On the aggravated
felonies that you talked about, I am looking at the list here,
and I am just running through a couple of them. But no one on
that list was charged or convicted with murder, rape, or sexual
abuse of a minor, were they?
Mr. Morton. They were not.
Mr. Forbes. Was anyone charged or convicted of illicit
trafficking in a controlled substance?
Mr. Morton. There were some with drug offenses. The
individual I mentioned earlier who is 68 and a lawful permanent
resident.
Mr. Forbes. Were any of them involved in child pornography?
Mr. Morton. Not of the ones that I am aware of that were
released, no.
Mr. Forbes. So of the 2,228, you can testify that none of
them were involved in child pornography?
Mr. Morton. To the best of knowledge, I can testify the
answer is no.
Mr. Forbes. Well, to the best of your knowledge just means
that you do not have any knowledge of it now. Have you reviewed
that or can you testify that none of them were?
Mr. Morton. I can tell you that I have reviewed the
summaries of all 2,228. I have not looked at the actual
conviction records personally on such a number. I have not
looked at every----
Mr. Forbes. Can you answer me this question? Because my
time is about out. What time frame are these individuals to
report back where somebody can actually lay eyes on them and
say that we know that they are complying? Give us those time
frequencies and what percentage of them have started reporting
back.
Mr. Morton. It depends on what sort of release you are put
on. If you are on ATD, it can be as often as every week, and
plus you have your bracelet. So it is constant monitoring. If
you are on an order of supervision, it can depend. It can be
monthly. It can be weekly. It can be quarterly. The same is
true of an order of recognizance. Obviously, with a bond, you
are dealing with a financial obligation that you must address.
There is some combination of the two, too. We have the power
to----
Mr. Forbes. So some of them you have as far as----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Forbes. I will yield back.
Mr. Goodlatte. I thank the gentleman.
Director Morton, we will have to stand in recess for a
vote. So the Committee will reconvene as soon as the votes
conclude.
[Recess.]
Mr. Goodlatte. The Committee will reconvene.
And the Chair recognizes the gentleman from Georgia, Mr.
Johnson, for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Morton, in your department's 2012 and 2013 budget
requests, did you oppose the inclusion of statutory language
mandating ICE to maintain a level of at least 34,000 detention
beds per day or per night?
Mr. Morton. The President's budget did call for a lower
number, 32,800, and called for a level of flexibility that was
ultimately not adopted by the Appropriations Committee.
Mr. Johnson. Now, is the 34,000 detention beds that were
passed or were mandated by this Congress--are those mostly in
the private, nonprofit prison system?
Mr. Morton. It is a mix of----
Mr. Johnson. It is not private, nonprofit, but private,
for-profit prison system.
Mr. Morton. Yes, sir. It is a mix. We run a very small
number of facilities ourselves.
Mr. Johnson. How many beds?
Mr. Morton. I would say maybe in our facilities a maximum
of a couple of thousand.
Mr. Johnson. So you have got 32,000-plus that are housed in
private, for-profit, corporate-run prison facilities. Is that
correct?
Mr. Morton. Not entirely. We also contract with State and
local governments.
Mr. Johnson. If those beds are unfilled, is there still a
requirement that the Federal Government pay the private
contractor?
Mr. Morton. Yes. Many of our contracts require a minimum
floor, and then depending on the particular contract, obviously
if we use more of the minimum floor, we pay for that as well.
We do our very best not to have empty beds.
Mr. Johnson. It is kind of like you want to fill the beds
up so that you will not be paying for something that you are
not using. Is that not correct?
Mr. Morton. That is correct. Obviously, if Congress
appropriates us money, we need to make sure that we are
spending it on what it was appropriated for.
Mr. Johnson. And so we got a guaranteed payment to private,
nonprofit corporations like Correction Industries of America,
among others. Excuse me. Yes, Corrections Corporation of
America, which is the largest private prison company in the
country.
Now, you do, in law, have the flexibility to provide
alternatives to detention to certain classes of detainees. Is
that not correct?
Mr. Morton. Yes, sir.
Mr. Johnson. You have the right to release them on bond.
Mr. Morton. Yes, sir.
Mr. Johnson. And that is in fact what you did with the
2,228 persons that were released, which is the subject of this
hearing. Correct?
Mr. Morton. That is right, and we do that every day with
other people as well.
Mr. Johnson. Now, how much does a detention bed cost per
day?
Mr. Morton. It depends on where you are in the country, but
on average, we calculate it is $122 a day.
Mr. Johnson. I have heard reports of up to $166 a day for
housing, health care costs, and guard costs.
Mr. Morton. That is correct, particularly if we are, for
example, in the Northeast. If you are detaining people in New
York City, it obviously costs a lot more than it costs to
detain somebody elsewhere.
Mr. Johnson. Well, using the average $166 a day times
34,000 detainees, we are guaranteeing to the private prison
industry about $5.6 million per day--$5.6 million per day. Are
you familiar with that?
Mr. Morton. Well, again, I would note that there are other
partners that we work with. We have State and local governments
that provide us and then we do have some of our own contracted
detention facilities. But do we have a dedicated appropriation
for those beds? Yes.
Mr. Johnson. It is about $5 million a day.
Are you familiar with the ALEC group, the American
Legislative Exchange Council, which proposes State laws that
enable States to fill the prison beds that we are discussing
today?
Mr. Morton. I am not, sir.
Mr. Johnson. You are not? But you would not be surprised if
Corrections Corporation of America was a member of ALEC, along
with thousands--70 percent of the legislators in the country.
Would you be surprised to learn that?
Mr. Morton. I am just not aware of that particular group. I
am aware of----
Mr. Johnson. So you are unaware of a mandate from
corporations to the Federal Government to supply them with a
fixed number of beds--i.e., profit--per day. And we do not even
monitor these private corporations in terms of the health,
safety, and well-being of the detainees.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
The Chair recognizes the gentleman from Iowa, Mr. King, for
5 minutes.
Mr. King. Thank you, Mr. Chairman, and thanks, Director,
for your testimony here.
I am looking at some numbers that I heard earlier in the
testimony, 2,228 detainees released, and of those, 1,599 non-
criminals. Can you tell me if any of the non-criminals had
orders of removal?
Mr. Morton. I do not believe so, but we can check. But my
initial assessment would be they do not.
Mr. King. And of the 629 criminals, how many of those had
orders of removal?
Mr. Morton. I do not believe any of them had final orders
of removal, although there was one case that involved somebody
who had very severe mental issues, and that one person may have
had an order and is the subject of some litigation that we are
involved in.
Mr. King. Could you tell me how many of the 1,599 non-
criminals and the 629 criminals fit under the category of
mandatory detention?
Mr. Morton. None of the individuals that the field was
directed to release could be mandatory detention. As I noted
earlier, in further review, we have determined that there were
some cases released that should have been mandatory detention
when we looked at the record, and we pulled those in. But as a
general rule, obviously a mandatory detention case must be
detained.
Mr. King. That is roughly 8 or 10? That is the kind of
number we are talking about that may have been mandatory
detention that were released?
Mr. Morton. There will be four out of the level 1 offenders
that we brought back in, and there will be--out of the level
2s, I think there will be less than a few dozen brought back in
for a variety of reasons.
Mr. King. But you would not have granted a release of
anyone knowingly in the list of those who were mandatory
detainees?
Mr. Morton. No. That would be unlawful.
Mr. King. So, therefore, that list that I heard from Mr.
Forbes, murder, rape, sexual abuse, drug trafficking--you said
a yes to drug trafficking. Would that not fit under the
category of mandatory detainees?
Mr. Morton. So there is some drug offenses--so, for
example, possession--that are not mandatory detention in every
case. Drug trafficking, depending on the State law----
Mr. King. There were no drug traffickers released?
Mr. Morton. Not that I am aware of.
Mr. King. Okay, and no firearms traffickers either that you
know of or----
Mr. Morton. No firearms traffickers.
Mr. King. Or money launderers?
Mr. Morton. No money launderers.
One point to be clear on. Separate from these budgetary
releases, there are times when we must release someone with a
serious criminal record based on a Supreme Court case that says
that if the Government is unable to remove people, we may not
detain them indefinitely.
Mr. King. Not making that the issue, though, it is your
position--and I hear it here clearly--that you would not
knowingly release anyone who is a mandatory detainee other than
giving deference to the Supreme Court case.
Mr. Morton. Yes.
Mr. King. And with the request of the letter that was
issued by Chairman Goodlatte and Senator Grassley for the list
and the details of those who fit within those categories I have
mentioned of the 2,228, you will provide that at their request?
Mr. Morton. We have already provided a summary to the
Committee, and we are happy to continue to work on further
details. Just to give some flavor to it, Mr. King, occasionally
we will deal with someone who has terminal cancer or, you know,
there is an extraordinary circumstance. But generally, when the
Congress says that something is mandatory, we view it as
mandatory.
Mr. King. Well, I appreciate that.
And when you looked at your options of releasing these
2,228 into the streets of which 629 are criminals, what was the
rationale? If you needed to free up your budget, why did you
not just go ahead, those who were adjudicated with deportation,
remove them, or accelerate that process so you could remove
them and relieve your budget in that fashion, release people
into the streets of their home country rather than into the
streets of our home country?
Mr. Morton. We are doing everything we can to remove
people. So I do not believe there were any removal cases that
were ready to go that we delayed on.
Mr. King. But why did you not accelerate that as another
option rather than releasing people into the streets?
Mr. Morton. We go as fast as we can. I am not aware of any
power that we had to accelerate----
Mr. King. Did you consider that as something you might want
to develop, an ability to accelerate the removal so that you
could free up your budget and not release people into the
streets?
Mr. Morton. Well, I am a supporter of trying to make sure
that immigration proceedings proceed in a timely fashion. We
have number of proceedings that take too long, and if we were
to be able to shorten them, I think we could----
Mr. King. Let me just ask you. If an ICE agent encounters
an individual that is unlawfully in the United States, let's
say, within a jail and that individual is guilty of less than
three misdemeanors, can they arrest that person and place him
in a deportation? How would your management deal with an ICE
agent like that?
Mr. Morton. So if the person has less than three
misdemeanors, with some exception for drug offenses, most
misdemeanors are not an independent ground for removal. Now, if
they are here unlawfully, however, that is a ground of removal,
and we obviously take into account----
Mr. King. Do you encourage your agents to do that?
Mr. Morton [continuing]. Misdemeanor offenses.
Mr. King. Do you encourage your agents?
Mr. Goodlatte. The time of the gentleman has expired. I
will allow the gentleman to answer the question and then we
will move on.
Mr. Morton. We focus on criminal offenders. It depends on
what the underlying record is. I mean, in your scenario where
someone has three misdemeanor convictions, generally the
presumption would be we take a serious look at that person for
removal
Mr. King. Thank you, Director.
Thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
It is my understanding the gentlewoman from California has
a unanimous consent request.
Ms. Lofgren. Yes, Mr. Chairman. I would like unanimous
consent to place into the record statements from nine groups,
including the Lutheran Immigration and Refugee Service.
Mr. Goodlatte. Without objection, those statements will be
made a part of the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. And the Chair is now pleased to recognize
the gentleman from Illinois, Mr. Gutierrez, for 5 minutes.
Mr. Gutierrez. Thank you, Mr. Chairman.
Good to have you, Director Morton.
I just want to follow up on these deportations. So how many
people were deported in the last calendar year?
Mr. Morton. About 409,000 people.
Mr. Gutierrez. Can you tell us about the last 4 years,
deportations during the last 4 years, just general numbers?
Mr. Morton. General numbers, just a little bit shy of
400,000 on average every year.
Mr. Gutierrez. On average each year.
And how is that in relationship to the previous 4 years in
terms of actual number of deportations?
Mr. Morton. Significantly increased.
Mr. Gutierrez. Significantly increased. So since you got
the job 4 years ago, deportations have significantly increased,
and we can demonstrate that through actual numbers.
Mr. Morton. Yes, particularly for criminal offenders where
we have focused most of our effort.
Mr. Gutierrez. And what is the reason you believe that you
have been able, in spite of the cost for many of us, to be able
to achieve that significant increase in deportations?
Mr. Morton. The Congress of the United States provides us
resources to enforce the law. My job as the head of the Agency
is to see that those resources are well spent, and Congress has
provided us resources that----
Mr. Gutierrez. Let me ask you something, Mr. Morton.
Mr. Morton [continuing]. We can remove about 400,000 people
a year.
Mr. Gutierrez. Sorry to interrupt you.
So when you started at this job, how many local police
departments, governmental agencies had a relationship under
Secure Communities and the Federal Government?
Mr. Morton. When I first started, very few.
Mr. Gutierrez. How many today?
Mr. Morton. Today Secure Communities is in every
jurisdiction of the United States.
Mr. Gutierrez. In every jurisdiction of the United States.
So during the last 4 years, you have expanded heretofore an
almost unknown program, which really is to gather, would you
not agree, many of the people that you subsequently put in
deportation proceedings?
Mr. Morton. The Secure Communities program? Yes. And the
criminal justice system now allows us a window to that system
in a way that was never possible before.
Mr. Gutierrez. So we give you money. So you have to have
34,000. Do you feel you have to have 34,000 people in custody
every night in a bed? Do you feel you have to have that number?
Mr. Morton. We have to maintain, on average, 34,000 beds
from a budget perspective, and obviously we are not going to
have empty beds. Some beds we actually put more than one
person----
Mr. Gutierrez. But you relayed to us that 40 to 45 percent
of everybody currently in some kind of proceeding is not, in
the definition of the Federal Government, a criminal. Is that
correct? You gave us a number--and I have tried to calculate--
that about 40 to 45 percent--there were 350,000 people
approximately where? Define where the 350,000 people are.
Mr. Morton. In removal proceedings.
Mr. Gutierrez. In removal proceedings.
And you also suggested that about 40 percent of them had
committed no criminal violation. Is that correct?
Mr. Morton. That is right. I think the number is probably
higher than that even.
Mr. Gutierrez. Very good.
But in spite of the fact that they have not committed any
criminal violation, we still have astonishingly high, record-
breaking numbers of deportations.
Mr. Morton. The Congress of the United States----
Mr. Gutierrez. And Secure Communities has gone from a few
parts of the United States to everywhere in the United States
of America.
Mr. Morton. That is right.
Mr. Gutierrez. I think to me that demonstrates the need for
comprehensive immigration reform. The separation of families
and the destruction of families. The fact is you will deport
1,400 people today. You will deport 1,400 people tomorrow and
the next day and the next day and the next day until we do
comprehensive immigration reform. 250 to 300 American citizen
children are going to be left today because of your actions and
those of your department without a mom or a dad. The fact is
there are thousands of children in foster care and in
proceedings of termination of their parental rights. There are
4 million American citizen children who--I have to tell you,
Mr. Morton--many times you do not take into consideration as
you deport their parents from the United States.
As a matter of fact, everybody likes to talk about the
President's order on deferred action, something that I praise
and was happy to hear about. But the fact is, is it not true,
that you will still deport the parents of those that have
gained deferred action?
Mr. Morton. Deferred action covers the children.
Mr. Gutierrez. But not their parents.
Mr. Morton. It does not cover their parent.
Mr. Gutierrez. So we have an executive order that covers
the children, but does not cover the parent. Again, we cover
the children but not the parents and the corrosive effect that
this has.
I will just end with this because the Chairman is so good,
and I am going to try to stay right on the number. And that is
just to say, look, you should have released those 70 percent of
those people a long time ago, according to your own statements
that you issued in the summer of 2011 on prosecutorial
discretion. I hope you will use more prosecutorial discretion
not less prosecutorial discretion so as this Congress finally
gets to the work of comprehensive immigration reform we will
have fewer families that we need to heal.
Thank you so much, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
The Chair recognizes the gentleman from Texas, Mr. Gohmert,
for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
And I am grateful to the witness for being here even though
I am looking at you through the reporter there. Thank you.
I just got a message from my friend, the Governor of Texas,
Rick Perry, indicating that they sort of feel like it would be
a good idea that if you are going to release previously
convicted criminals, people who are at a high risk for repeat
offenses, and that would include multiple DWI's, that they
would really like to know that you are about to release those
people in their State so they can give their law enforcement a
heads up.
Playing football back in high school as a quarterback, the
linemen had sometimes what was known as a lookout block. If
they screwed up so bad a guy got by them, they would at least
have the decency to turn around and yell ``look out.'' That was
a lookout block. They did not get their lookout. They did not
get the block. They did not get the lookout in Texas.
Are there some requirements that you notify the State and
local authorities or State or local authorities when you allow
criminals and suspected criminals to go free from detention?
Mr. Morton. There are no blanket notification requirements.
Mr. Gohmert. So unless we put it in the law, you do not
even give a lookout, here come these folks.
Mr. Morton. Generally speaking, the notification that we
will give is, where we can, through the victim notification
system. Remember, we are not part of the----
Mr. Gohmert. The victim notification, but not necessarily
to the local law enforcement or the Governor's office.
Mr. Morton. That is correct.
Mr. Gohmert. Because I can assure you if you notify the
Governor's office, they are going to let the local law
enforcement know. That would be a good place to start, but it
sounds like we are going to need to put that in the law.
Well, I tell you I was staggered to hear my friend, Zoe
Lofgren, from California talk about the greatest number of
convictions, of Federal convictions, that this Administration
has are for Federal, which is a felony, reentry after
deportation. I was staggered to hear that. And, Mr. Morton, if
there is anything that comes out of this hearing that shocks
the conscience, it is that the number one biggest problem in
this Administration of a Federal felony nature is the reentry
by deported illegal immigrants after they have been deported.
Now, as a district judge in Texas, it was an ongoing
problem. I had one guy with nine DWI's, never would be
deported, was constantly reported to the Federal authorities.
This is when Bill Clinton was President. And finally he hit
somebody again and he came before my court because that bumped
it up to being a felony. So I understand it.
And as I have asked before, when people testify, yes, we
took him to the border and released him, I often want to know
did you stick around long enough to watch them come across the
border, or did you immediately drive away after you had dropped
him off. This is a huge problem.
And I am just curious. With each one of these Federal
felony convictions, it means we are paying for a prosecutor. We
are paying for law enforcement to get these people and then a
prosecutor. We are paying for a defense attorney for them. We
are paying for the offices for the prosecutor, the offices for
the law enforcement, the offices for the judges, the offices
for the appellate courts. And the number one conviction is for
Federal felony reentry after they have been deported.
When I start thinking about that fact, it becomes pretty
clear the best thing this Administration could do for this
country is secure the border so they do not have to keep re-
catching the people that have already been deported. To heck
with how much a wall costs or drone coverage, whatever it
takes, your Administration--and this message should go up to
the President. This Administration should do everything they
can to secure the border so that the number one source of
convictions is no longer felony reentry after you have deported
people.
And then you think about the money that would be saved by
those who do not have their house burglarized by criminals that
have been deported and have come back in, people who have not
been raped or cars that are not damaged in traffic accidents by
criminals that have been deported. But we do not secure our
borders so they come right back in.
So if any message comes out of this, I would implore you,
please send a message to this Administration. You want to save
money, Mr. President? You want to save money, Secretary
Napolitano? Secure the border and we will have all the savings
they will ever need. And I appreciate your doing that, if you
will. Would you pass a message on such as that?
Mr. Morton. I would be happy to note your statements here
today.
Mr. Goodlatte. The Chair thanks the gentleman from Texas
and recognizes the gentlewoman from California, Ms. Bass, for 5
minutes.
Ms. Bass. Thank you very much, Mr. Chair.
I wanted to follow actually my colleague, Mr. Guiterrez,
some of the questions and comments he was raising. I actually
come from an area in Los Angeles that is very, very concerned
about Secure Communities and the number of detentions that were
non-criminal. So maybe you could respond a little bit to that
in terms of why people were detained if there were not criminal
charges.
And in addition, I wanted to ask you about the children. He
made reference to the children whose parents are deported and
the ones that are put in the foster care system. Specifically,
I wanted to know what happens to them, but I also wanted to
know a name of a person in your office that I can have ongoing
communication about the children who wind up in foster care.
Mr. Morton. So we will follow up with you after the hearing
for a name. We are actually working on a policy trying to
address with Health and Human Services this sort of issue of
what do you do with U.S. citizen children when you remove the
parents and they have to go into--if they are left here, they
go into the child welfare system.
With regard to Secure Communities, we have implemented
Secure Communities nationwide, in every jurisdiction. There are
frequent criticisms and allegations that we are using it to
identify a lot of non-criminal offenders. That I do not think
is entirely fair. It is a very sensible program. We are trying
to focus our resources on the criminal justice system.
Occasionally someone will be charged with a criminal
offense and they have also been deported from the country
before or they also have an outstanding final order.
Technically that person is a non-criminal offender because they
have yet to be convicted. But I do not think it is reasonable
to expect the Agency to ignore the fact that they are in the
country here unlawfully, or they have an outstanding final
order that they ignored. And in those circumstances, when we
identify them through Secure Communities, we will place a
detainer on those individuals and we will seek to remove them
from the country.
Ms. Bass. In Los Angeles, what was happening was raids, you
know, raids of workplaces. And I do not know how a decision is
made about that.
Mr. Morton. Well, I am not aware of raids, as you would
describe them, in the last 4 years. The Secretary instituted a
new policy for worksite enforcement that has us focused first
and foremost on criminal violations by the employers,
heightened audits, and an effort to work with the business
community to encourage voluntary use of E-verify, which we have
done. Last year we had over 3,000 I-9 audits, which was the
highest level in the Agency's history. And we have generally
not pursued the very large-scale administrative raids you saw
previously.
Ms. Bass. You know, I want to give you an example. I was in
Miami, Florida with the Foster Youth Caucus, and we were
visiting a residential facility for foster youth. And I am from
Los Angeles. And on that day, they were getting four kids from
Los Angeles who were being sent to Miami to be in residential
care. And I guess my concern is that for those parents that do
wind up deported, their children could get lost in our system
when they could have relatives who are here legally.
Mr. Morton. We do everything we can to ensure that the
children, if they are not going to go home with the parents,
are in an appropriate custodial situation. This is a very
challenging area. Most of the people that we are talking about,
most of the parents, are criminal offenders. Some of the damage
has been done long before ICE takes custody of them and the
person has been incarcerated for quite some time and a
challenging family relationship now exists. And obviously,
simply having a child is not a basis for staying in the country
lawfully.
Ms. Bass. Oh, sure.
Mr. Morton. You have committed an offense.
Ms. Bass. Yes, and I am definitely referring to the ones
that were not.
But if I could follow up, if I could have my staff follow
up with yours to get someone who is looking at that policy with
DHS, I would definitely like to be included in that.
Mr. Morton. Yes, ma'am. We will do so.
Ms. Bass. Thank you.
Mr. Goodlatte. I thank the gentlewoman.
The Chair recognizes the gentleman from Pennsylvania, Mr.
Marino, for 5 minutes.
Mr. Marino. Thank you, Chairman.
Director, welcome.
Mr. Morton. Thank you.
Mr. Marino. Director, you hit the news quite a bit over the
last couple of weeks. And it has been reported that you stated
that there would be 2,228 illegal immigrants from local jails
that would be released for various reasons. I think you
followed up saying there may be more released as well.
My question to you is--you know, that was accurate, and I
am sure you were responding to precise figures. But do you not
think you should have followed up by explaining to the American
people we do this on a regular basis and we do release
individuals, thousands of them, over several months given the
fact that the way it was presented, either you were directed to
or you did a little grandstanding on let's make this sound as
painful as ever per the sequestration? Now, why would you not
follow up and explain to the American people we do this on a
regular basis?
Mr. Morton. As I have said before, I do regret the timing
in notification. We should have, as an Agency, done a better
job of communicating what we were doing and why we were doing
it, both in terms of communications to our oversight committees
and generally.
Mr. Marino. And I do not hold you totally responsible for
that. I know you said that you did not have any communications,
but I reached down into my heart and then I find it hard to
believe that some kind of a wink and a nod was not said across
the board that let's make this sound as painful as possible,
whether it is in your department, the Justice Department, or
Homeland Security or somewhere else. I do have a problem with
that.
Also, I received a letter. I am from Pennsylvania,
northeast Pennsylvania. I have 15 counties. One of my counties
is Pike County, and they house illegal immigrants. They do a
great job. They have been recognized for this. And as the
letter states--it is dated March 1, 2013 from the commissioners
of Pike County. And I am just going to very carefully read two
sentences.
As you may know, on behalf of the Department of Homeland
Security, Immigration and Customs Enforcement, immigration
detainees have been housed in Pike County correctional facility
since 1996. And the fact that in stark contrast, these
numbers--and they go through to tell the numbers of how many
they house and how many they are housing. Detainees housed in
Pike County has been steadily declining since before the
beginning of this year.
And you said as high as $164 per day to keep an illegal in
prison in some situations. In Pike County, it costs $82.50 a
day. They do a great job and they really have the cost down.
Why not take advantage, more advantage of facilities like this
and particularly in Pike County who built a whole new facility
just to house these individuals?
Recently the number of detainees has decreased, as I stated
to you. But can you account for the decrease since before the
beginning of the year of detainees?
Mr. Morton. Why do we not follow up with you on Pike
County?
Mr. Marino. I would appreciate that.
Mr. Morton. We run over 250 different facilities.
Mr. Marino. And I know that. Listen, when someone is asking
me do I know everything that is going on in Congress, I have to
say, no, I do not know everything that is going on in Congress.
And as one prosecutor to another, I know your responsibilities
are great.
Here is another question I have for you if I have time.
Have you approached the United States attorneys in the
respective districts and informed them that these people were
going to be released, or were you told not to inform them? Did
you have any communications with informing them or not
informing them? Because I would find it hard to believe that
you did not get some push back from U.S. attorneys on this.
Mr. Morton. No, we have not notified the United States
attorneys' offices of the releases, non-criminal or criminal.
But remember, all of these people have been convicted and have
served their time. We are talking about detention solely for
removal purposes. We are not a penal institution.
Mr. Marino. I understand that, but do you not think it
would hurt morale? I was a former U.S. attorney. I know what my
staff went through. I know how hard they worked. I know how
they followed these cases through. And then just to simply
release these individuals, it has got to be a morale-buster. I
know I would have pushed back had I known about it, if I were
the U.S. attorney. So you are saying there was no communication
there?
Mr. Morton. No. All I can say is I think from the U.S.
attorneys' community perspective, we are prosecuting a record
number of cases with them. We are removing a record number of--
--
Mr. Marino. Okay, I understand that, sir. My time is
limited.
Have you ever received any notification from up the chain
that we do not want you picking up any more illegals in this
country?
Mr. Morton. Let me be clear on this. These releases are
solely a determination by the Agency----
Mr. Marino. I understand that. I clearly understand that.
But the question was have you received any direction from up
the chain not to detain any more illegal aliens in this
country.
Mr. Morton. No.
Mr. Marino. I yield back. Thank you, sir.
Mr. Goodlatte. I thank the gentleman.
The Chair recognizes the gentleman from Louisiana, Mr.
Richmond, for 5 minutes.
Mr. Richmond. Thank you, Mr. Chairman, and thank you to the
witness.
As I sit here and ponder my questions and I look at the
title, the ``Release of Criminal Detainees by U.S. Immigration
and Customs Enforcement: Policy or Politics?'', it begs the
question whether the hearing itself is policy or politics
because I have yet to hear someone ask if we are so worried
about the releases, how much do you need so you do not have to
release people. And you made these releases based on sequester.
If we were asking and we wanted to know what do you need as
we do a CR and other things to keep Government going, what do
you need so that you do not have to release anybody.
Mr. Morton. I get asked this question all of the time, and
it gets back to a recognition that the Agency is asked to do
far more than Congress appropriates or could rationally
appropriate to the Agency. We are in a situation where there
are 11 million people, on average, who are here unlawfully, and
the Agency has resources to remove about 400,000 a year, which
is less than 4 percent. And it is why, at the end of the day, I
think bipartisan efforts to come to some level of comprehensive
immigration reform is the thoughtful way out. The Agency is
never going to be able to detain and remove everybody as a
matter of budget, nor does it make sense as a matter of policy.
Mr. Richmond. And as the Agency head, how do you plan and
budget for a Government that is operating 60 and 80 days at a
time, almost like a drunk frat house planning the next party?
Mr. Morton. It is very difficult. Listen, I am the head of
the Agency. I accept all of the criticism of the Agency on its
behalf. But I will say we could have done a better job of
notifying the Committees and explaining what we were doing.
Let's be frank, however, we are dealing with a situation in
which we had a 6-month CR, a sequestration imposed on top of
that, and as of right now, I do not know what my budget will be
for the next 6 months of the year. And the career men and women
are doing the best job they can to use the funds that we have
been given wisely in an awfully unique budget environment.
Mr. Richmond. And I am glad you brought up the fact that
you are dealing with the CR's because it has been suggested
that this is on you. But let's just take the time since I have
been here the last 3 years. Was it your idea to pass a 14-day
continuing resolution? Was it your idea to pass a 21-day
continuing resolution or a 7-day or a 168-day or a 4-day, a 45-
day, a 28-day, a 1-day continuing resolution and a 6-day? How
do you adequately plan and run the Government or a branch of
Government with CR's that go for that short amount of time? How
do you adequately budget for that?
Mr. Morton. It is very difficult. We err on the side of
being conservative, as we have here, to make sure we are not
deficient at the end of any given continuing resolution. It is
difficult. We are a very large operation. We are taking in over
400,000 people a year, and it has to go on for the full year.
And when you are in an environment where you do not know what
your budget is going to be, when the various marks in the House
or the Senate are different, when you are looking at
sequestration, it is a challenge. And you do your best under
the circumstances to come up with the right answer.
Mr. Richmond. As you went through the releases and as you
sit here today, do you think that your department went through
the necessary due diligence to make sure that the people who
were released posed the least threat to our citizens and our
constituents?
Mr. Morton. The instructions to the field were clear. These
decisions were made by career professionals in the field. So we
did do the necessary due diligence in the sense of giving out
good instructions. But we are going to follow through. This is
not something that was done one day. We will continue to review
these releases. If we made a mistake, we will take the person
back into custody. I do not claim perfection for the Agency in
each and every action it makes over a year. And we have made
releases on the best judgments we could, on the record that was
available, and if we get it wrong upon review, we will take the
person back into custody. We will put them on a different level
of detention. We are doing that now.
Mr. Richmond. Thank you, Mr. Chairman. I yield back.
Mr. Goodlatte. I thank the gentleman.
And the Chair recognizes the gentleman from Idaho, Mr.
Labrador, for 5 minutes.
Mr. Labrador. Thank you, Director Morton. I actually had
the privilege of working with ICE for 15 years as an
immigration lawyer. We were on the other side, but I know what
a difficult job you have and what a difficult job the men and
women in your office have.
I do have a question. Was it your idea--just to follow up
on the questions. Was it your idea to not pass a budget for 4
years?
Mr. Morton. Obviously, budget decisions rest with the
Congress of the United States.
Mr. Labrador. I just want to remind the people on the other
side that it has not been this house who has not passed a
budget, that it was the Senate that has not passed a budget in
4 years. But that is neither here nor there.
The gentleman from Pennsylvania asked you a line of
questions. And the question today, was it policy or was it
politics--can you at least understand why this question is
being raised? I think you have acknowledged a little bit that
you made some mistakes. Can you understand why this question is
being raised?
Mr. Morton. I have acknowledged that our notification of
what we were doing with our Committees of oversight could have
been better, and I take full responsibility for that as the
Agency head. The buck stops with me.
Mr. Labrador. So you said the decisions were made by career
officers, but you just told us that you had instructions to the
field. Why were those instructions sent to the field?
Mr. Morton. So the underlying decisions were made by career
officers, both in the budget office and in ERO. Instructions
were given to the field on how to carry out the releases, make
sure they are non-mandatory----
Mr. Labrador. So these were not field officers. These were
career officers in the----
Mr. Morton. At headquarters.
Mr. Labrador. At headquarters in Washington. I just want to
make that clear that this was not field officers making
decisions. They were getting instructions from your office. Is
that correct? Okay.
Now, your budget in 2009 was $4.9 billion. Your budget in
2010--it was $5.3 billion. Your budget in 2011 was $5.4
billion, and your budget in 2012 was $5.5 billion. So in the
last 4 years, your budget has actually been raised by at least
10 percent. Is that correct?
Mr. Morton. That is correct.
Mr. Labrador. So you are coming here and telling us that
because you have to cut 5 percent of your budget, you cannot do
the job that you were doing in 2009, 2010. Is that what you are
telling us?
Mr. Morton. No. I am telling you that we are operating at
an all-time high both in terms of detention and the removals
that we have----
Mr. Labrador. But you just testified that in 2009 and 2010,
you were detaining about--you were deporting about 400,000 a
year. You were taking credit, which I think you should, for the
high numbers of deportation, and you had a budget that was
actually less than what your sequestration budget is going to
be.
Mr. Morton. No. Our removals last year were the highest
ever.
Mr. Labrador. Yes, but in the last 4 years, you have
averaged 400,000 deportations, removals. Is that not correct?
Mr. Morton. I did.
Mr. Labrador. And you did it with a budget that was
bigger--actually smaller than the budget we are talking about
right now with the 5 percent cut.
Mr. Morton. I gave you an average for the year--for the 4
years. If I were to give you each year, it would be
substantially less.
Mr. Labrador. So again, in 2009, you had 4.9 which is
substantially less than what you have right now even with
sequestration. In 2010, you had 5.3, which is about what you
are going to have, and you were able to do your job.
Now, as a practitioner, I had an opportunity to work with
people in detention quite a bit. I had thousands and thousands
of clients. And when I look at these numbers, 2,228 were
released, and you sent out this paper that says detention
releases solely for budget reasons. But you are telling me that
1,599 of them had no criminal convictions. Is that correct?
Mr. Morton. That is correct.
Mr. Labrador. So was that not something that you were going
to do anyway, release the majority of these people regardless
of your budget constraints?
Mr. Morton. No.
Mr. Labrador. They were in removal proceedings. Correct?
Mr. Morton. They are in removal proceedings. We do detain
non-criminal immigrants who are, nonetheless, removable from
the United States.
Mr. Labrador. And if they ask for a release, you make a
determination, regardless of what the budget is, whether they
should be released or not.
Mr. Morton. An immigration judge makes that decision.
Mr. Labrador. But your field officers have the authority to
release these aliens. Correct?
Mr. Morton. That is correct. We have some discretionary
authority ourselves, and then our determinations are reviewed
by immigration judges. There are many instances in which we
seek to detain somebody and an immigration judge, as you know,
disagrees with us and orders us to release the person. And
there are also cases that I referred to earlier where, as a
matter of court ruling, we must release people, the Zadvydas
case in particular.
I will just tell you, in addition to these 2,228 budget
releases, we released about 150 individuals for special
circumstances. The overwhelmingly largest group were people who
were unremovable, Vietnamese, Cubans, people we could not get
travel documents----
Mr. Labrador. My concern--I think Mr. Marino said it
correctly. The way you went about this policy actually scared
America instead of making America feel safe because I know you
release people every single day, and it seems odd to me that
since your single largest appropriation is for custody and
detention, that you did not request reprogramming. And if
detention is the single largest appropriation, then it follows
that it is the highest priority of Congress. And if it is the
highest priority of Congress and you know this, then why would
you not ask for us to do something about this for reprogramming
instead of trying to scare the American people and saying that
because of sequestration, we have to release these people that
you have the authority to release and have done in the past.
Mr. Morton. Obviously, I do not agree that we were trying
to scare America. We were trying to maintain our budget. And
again, we were at the highest level of detention we have ever
had and the highest level of removals we have ever had. We
release people all of the time pursuant to statute, and we got
to make good judgments with the resources we have on how we go
about doing that. And that is what we are doing every day. We
are going to continue to do it for the rest of the year. We
will try to maintain whatever detention levels Congress
provides. And it is not so simple when the largest
appropriation we have is custody operations, and the next
largest is criminal investigations.
Mr. Goodlatte. The time of the gentleman has expired.
Director Morton, we still have four more Members who want
to ask questions. So we have a vote on. We will recess. The
gentleman from----
Mr. Marino. Mr. Chairman, a point of order.
Mr. Goodlatte. Do you have a unanimous consent request?
Mr. Marino. Could I have this letter entered as part of the
record?
Mr. Goodlatte. Can you identify it for the record?
Mr. Marino. Yes. It is the Pike County Commissioners, Pike
County, Pennsylvania. The commissioners sent me a letter on
some of my questioning pursuant to why Pike County illegal
immigrant levels are down.
Mr. Goodlatte. Okay, thank you. And without objection, that
will be made a part of the record.
[The information referred to follows:]
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Mr. Goodlatte. The Committee will stand in recess until
immediately after these votes.
[Recess.]
Mr. Goodlatte. The Committee will reconvene and the Chair
recognizes the gentleman from New York, Mr. Jeffries, for 5
minutes.
Mr. Jeffries. Thank you very much, Mr. Chair.
You know, I am a new Member here, and I think I am
generally a pretty optimistic type of person. But oftentimes,
many of the themes that we have seen over the last several
months within this institution--and I do not doubt the
sincerity of several of our friends on the other side of the
aisle. But many of the themes that we see that have been
articulated suggest that the sky is falling, and so we are in
the midst right now of debating what many of us view as a very
draconian budget, that we are told if it does not get passed,
the need for such austerity measures are designed to prevent
the great United States of America from becoming Greece or
Spain and perhaps something worse. The sky is falling.
We also on the Subcommittee had a hearing that I believe
was entitled ``The Obama Administration's Regulatory War on the
Economy,'' very ominous because the sky apparently is falling,
notwithstanding the fact that this Administration has created
about 6 million private sector jobs.
And today there is a theme advanced by some--again, I am
not questioning the good faith of any Member's views, but the
theme is that criminals have been unleashed on the American
public. And the question that has been posed is, is this policy
or is this politics?
Now, I would note parenthetically that I believe in my
reading of the Twenty-Second Amendment, Barack Obama is
constitutionally prohibited from even running for office again
because he was elected and re-elected. I am not sure how
politics could even make their way into this discussion from
the electoral context.
But putting that aside, the issue of whether criminals have
recklessly been unleashed on the American public is an
interesting one. And I gather about 2,228 people are at issue
in terms of the release from detention. Is that correct, Mr.
Director?
Mr. Morton. That is correct, sir.
Mr. Jeffries. And that release took place between February
9 and March 1. Is that correct?
Mr. Morton. That is correct.
Mr. Jeffries. And I believe you testified earlier today
that there is no evidence, as far as you know, that any single
one of those individuals, more than 2,000, who was released has
engaged in criminal activity subsequent to that release. Is
that correct?
Mr. Morton. Not that I am aware of. That is correct.
Mr. Jeffries. Now, of course, that is not to say that
someone may not engage in some form of destructive behavior at
some point. These things are very difficult to predict
scientifically. I am certain that your Agency--and under your
leadership, you have attempted to do it to the best of your
ability, as prosecutors and judges and people all throughout
the American criminal justice system attempt to do.
But if I just might for a moment go through some of the
releases that took place at the field offices. It is my
understanding that about 342 detainees were released from the
Phoenix field office. Is that correct?
Mr. Morton. Yes. Arizona had 1 level 1, 30 level 2s, 91
level 3s, and 122 non-criminal.
Mr. Jeffries. Thank you. I do not know what is going on
with this microphone.
Any evidence that a crime wave was unleashed on the people
of Phoenix, Arizona?
Mr. Morton. No. As I said earlier, we only have one level 1
offender on release in Arizona, and that individual is 68 years
old and a lawful permanent resident for 44 years.
Mr. Jeffries. Okay. There is no documented evidence that
the people of Phoenix, Arizona have been ravaged subsequent to
the release of these individuals, is there?
Mr. Morton. There is no indication of a crime wave. We are,
obviously, going to pay attention to every single case, and as
I said, if a case needs to have a different outcome, we will
make that outcome.
Mr. Jeffries. 341 people were released from the San Antonio
area. Any evidence that a crime wave has taken place subsequent
to that release?
Mr. Morton. Not that I am aware of. We had no level 1
offenders released in the State of Texas at all.
Mr. Jeffries. Okay. San Antonio was number 2.
Miami, number 4, 225 folks. Any evidence of a crime wave
unleashed on the people of Miami?
Mr. Morton. So far, we have had no evidence of serious
misconduct.
Mr. Jeffries. And lastly, Chicago I believe was number 7 on
the list. And I would note, interestingly enough, that--and I
would like to ask unanimous consent, Mr. Chair, that an article
in the Washington Post stated ``Chicago's murder rate is
finally falling. Can that keep up?'' That that be entered into
record.
Mr. Goodlatte. Without objection, so ordered.
[The information referred to follows:]
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__________
Mr. Jeffries. And this article notes that in January of
2013, prior to the release of these people who, I guess in the
view of some, threatened the well-being of the American
public--there were 43 homicides, which is at the high end.
February, interestingly enough, saw a huge drop. Only 14
homicides, the lowest monthly total since 1957. Now, I am not
suggesting there is a correlation between that low total and
the release of these individuals. But any evidence that the
people of Chicago, number 7 on the list, have been forced to
endure a massive crime wave as a result of the release of
detainees?
Mr. Morton. No, sir.
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Jeffries. Thank you.
Mr. Goodlatte. The gentleman from North Carolina, Mr.
Holding, is recognized for 5 minutes.
Mr. Holding. Director Morton, it is good to see you. We
worked together when we were both in the Department of Justice
during the Bush administration, and I congratulate you on your
promotion in the Obama administration. You always had a
reputation for intelligence and professionalism and hard work
during the times that I worked with you, and it is good to see
you here today.
I want to follow up a little bit on some questions that Mr.
Marino asked you earlier.
I assume all these detainees that were released are in
various Federal districts. They either came from various
Federal districts or were held in various Federal districts.
And I understand it is your testimony that you did not consult
with individual United States attorneys in those Federal
districts when you were releasing detainees that would have
come from them. Is that correct?
Mr. Morton. That is correct, although most of the detainees
that we receive on the criminal side are coming from State and
local custody, just the sheer volume.
Mr. Holding. If I may interrupt--you know, the United
States attorney is the chief Federal law enforcement in the
district, and they would be your attorneys in each one of the
Federal districts. Correct? You seek guidance from the United
States attorney's office?
Mr. Morton. On criminal prosecution matters? Of course.
Mr. Holding. And on civil matters.
Mr. Morton. Yes, although they do not get involved in
administrative removal matters.
Mr. Holding. But they would. For instance, if you had an
EEOC claim or some sort of claim within your Agency, it would
be the United States attorney's office who would be your
lawyers and give you advice.
Mr. Morton. They would, indeed. And I am a strong supporter
of the United States attorney's office.
Mr. Holding. During my tenure as a United States attorney,
we worked very closely with ICE. All Federal law enforcement
struggles with funding and struggles with covering their
mission with the amount of dollars that they have to do it. And
I think the motto throughout the law enforcement family is that
we just have to do more with less. One of the ways we were
always able to work well together is because the RAC's and the
SAC's from ICE and other Federal agencies kept us well informed
as to what was going on.
I must say I find it incredibly unfortunate that you were
not consulting with your individual United States attorneys
when you made a decision of this nature. You know, the chief
Federal law enforcement officer is charged with enforcing the
laws within the district, the Federal laws. And for you to be
releasing detainees is unfortunate.
But moving on to budgetary questions, you know, I
understand that with the exception of the custody operations,
ICE was operating under the presidential budget, not the budget
set by Congress under the continuing resolution. And as a
result, all of the other accounts in ICE carried a balance of
$240 million for the year and $120 million for the past 6
months. And additionally, your CFO indicated that ICE carried
forward $100 million to $120 million in user fee balances.
Again, all Federal law enforcement is juggling and
struggling to cover their core missions.
So why didn't ICE ever submit a reprogramming request to
the appropriations rather than releasing detained illegal
immigrants?
Mr. Morton. With regard to the appropriations outside of
the custody operations, we were pursuing a conservative
approach. The reason we were pursuing a conservative approach
is because we did not know what our budget would be for the
rest of the year, and those funds are what is going to allow us
to operate at a substantial level in those accounts for the
rest of the year. And I did not want to move monies out of the
other accounts. And again, the biggest one we have is domestic
investigations. I want to make sure we are doing everything we
can on child pornographers and drug traffickers and alien
smugglers possible.
With regard to the user fee balance, we would have to get a
reprogramming authority to use those funds. They are not
available to us except for a very small amount, and there are
restrictions on how they are used. And we are considering, as
part of how we are going to deal with sequestration and
whatever budget we get from Congress in the remaining 6 months
of the year, using those user fee balances if we can get
approval for them.
I will just note I understand we are below 34,000 right now
in terms of our detention levels, but on average we have
maintained during the non-sequestration portion of this CR an
average balance of 33,925. The Agency was right where it needed
to be in terms of what Congress asked of it.
Mr. Holding. Thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
The gentleman from Florida, Mr. Garcia, is recognized for 5
minutes.
Mr. Garcia. How are you doing, Director?
So I have got a few quick questions I want to ask you.
Several times you have made reference to robbing Peter to
pay Paul. In real terms, what does it mean? Give me some
examples of the kind of investigations and programs that you
might need to cut to maintain 34,000 beds and still comply with
sequester?
Mr. Morton. Thank you.
ICE does two things. We are part of the immigration
enforcement system, the administrative system, along with CBP
and CIS. And we are also the principal criminal investigator
for the Department of Homeland Security. In fact, we are the
second largest criminal investigative agency in the Government.
We have more special agents than we do immigration enforcement
officers. And that work is important work. We are out there
every day investigating border crimes, transnational crimes,
child exploitation, and that work is critical to homeland
security and to national security. We are the second largest
Federal contributor to the Joint Terrorism Task Forces in the
country outside of the FBI itself. Important work, needs to go
on, and in my view we should not take and divert resources from
domestic investigations to the detention budget if that would
mean fewer child exploitation cases, fewer special agents on
the streets, fewer drug trafficking cases.
Mr. Garcia. ICE has a mandate to maintain 34,000 detainees.
How many individuals do you safely feel can be released under
alternative detention?
Mr. Morton. Well, the alternative detention program has an
enormous amount of promise, and there is a very high rate of
appearance for the full-service model. So long-term I think it
is something that Congress should pay a lot of attention to,
and I think it could help with some of the budget challenges
that the Committee and other Committees are wrestling with.
The trick with alternatives to detention is to make sure
that the case is heard quickly. The average cost of
alternatives to detention on a full-service model is $7 a day
compared to as much as $122 a day for detention. However, if
the case takes much, much longer to be heard and decided,
eventually you lose the benefit of that much lower rate.
Again, I think it is an important form. It was started back
in 2002 during the Bush administration. It makes sense,
assuming we can get the cases on ATD heard quickly.
Mr. Garcia. Director, part of the----
Ms. Lofgren. Mr. Chairman, there is something wrong with
the microphones here.
[Pause.]
Mr. Garcia. So there was made an allusion that for some
reason you were doing this for political machinations. So I
want to give an example because we had something happen because
of budgetary reasons which have nothing to do with you. And
there is a video we wanted to run. Do we have that?
[Video shown.]
Mr. Garcia. Director, the reason I showed that is because I
want the Members of this Committee to understand that you are
doing a tough job under circumstances you did not plan for. We
clearly did not expect to be here, and it is our responsibility
as the Congress to find a way past this and to find agreement
among ourselves.
What you are doing you are doing, I would imagine, to make
sure you can carry out the duties and responsibilities of your
office. Correct?
Mr. Morton. That is exactly right.
Mr. Garcia. There was an allusion made you did this same
work last time and deported 400,000. You were about at the same
number the year before that and I think the year before that.
Correct?
Mr. Morton. That is right.
Mr. Garcia. I would assume that the first 400,000 were a
little bit easier than the second 400,000, than the third
400,000, I would imagine.
Mr. Morton. It is a challenge for us. We are trying to
prioritize our efforts on those that make the most sense.
Mr. Garcia. Thank you. I will yield back the balance of my
time.
Mr. Goodlatte. I thank the gentleman.
And the Chair recognizes the gentleman from Ohio, Mr.
Jordan, for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Garcia, Director, said that there was no way you could
plan for this and what was shown to us in the video. Why could
you not plan for this?
Mr. Morton. The challenge this year has been that we have
had a 6-month CR. As you know, on March 27, our funding is
going to run out. I trust that the Congress of the United
States----
Mr. Jordan. I am talking about sequester. When did
sequester become law?
Mr. Morton. The sequester took effect on March 1.
Mr. Jordan. No, but when was it passed?
Mr. Morton. The sequester has been around for quite some
time, obviously.
Mr. Jordan. August 2, 2011, 20 months ago. So the statement
that you could not plan for it--I mean, it seems to me you got
20 months to plan for it.
When did your Agency start planning for sequester?
Mr. Morton. Obviously, I think we, like most people, hoped
that sequester would not become reality.
Mr. Jordan. You cannot plan on hopes. You got to decide.
The law said August 2. It said on January 1, 2013, the
sequester is going to happen. You got a 2-month reprieve on
that. It took place March 1. When did you start planning for
what everyone knew the law said? Or is it the practice at ICE
not to plan and make decisions based on the law of the land and
say, oh, we hope it is not going to happen? When did you start
planning?
Mr. Morton. On the contrary. We are doing what the law
requires in a very uncertain environment.
Mr. Jordan. No, that is not the question. When did the
folks at ICE--when did you start planning for a law that was
enacted on August of 2011? Did you start August 3, 2011? Did
you start sometime in 2012? Did you start March 2, 2013? When
did you start?
Mr. Morton. Remember, most of these releases were due to
the CR.
With regard to sequestration, we began to plan in earnest
at the beginning of this year.
Mr. Jordan. So you waited until January of 2013?
Mr. Morton. We waited until January, 2013----
Mr. Jordan. So when did you make the decision to release
the 2,228 detainees? When was that decision made?
Mr. Morton. Well, the discussions on that have been ongoing
since the beginning of this year. The actual----
Mr. Jordan. More importantly----
Mr. Morton [continuing]. Decisions were made----
Mr. Jordan. Well, let me cut in here. I only got 5 minutes.
When did you decide that you were going to release the 629
who were criminals?
Mr. Morton. The instructions went out on February 9.
Mr. Jordan. February 9. And is that the same time you made
the decision to release the 10 level 1 felons?
Mr. Morton. The 8 level 1 felons----
Mr. Jordan. Or 8 level 1 felons?
Mr. Morton [continuing]. Yes--were part of that overall
decision.
Mr. Jordan. And do you think maybe if you would have
started planning sometime before this year--you had 20 months
to get ready for it--do you think maybe we would not have to
release 2,228 detainees, 629 who were criminals, 8 who were
level 1 felons? But do you not think that is maybe a question
the American people would ask? Maybe if you started planning
for this, when it actually became the law, maybe we would not
have to let 8 felons on the street.
Mr. Morton. Congress asked us to maintain an average of
34,000 beds over the period of the CR without sequestration,
and we did exactly that.
Mr. Jordan. You keep saying the CR, but in your testimony,
you said both CR and sequestration had an impact on this
decision.
Mr. Morton. That is right. The sequestration resulted in a
reduction of $300 million to ICE's budget.
Mr. Jordan. And that is my point. You knew that was going
to happen on August 2, 2011. If you maybe planned for it, maybe
you would not have to release 8 level 1 felons on the street.
Mr. Morton. I do not think that----
Mr. Jordan. You just said a few minutes ago that you did
not start planning for this until a few months ago.
Mr. Morton. I disagree with your characterization that
everyone felt that that was going to happen.
Mr. Jordan. Did you not just say January of this year is
when you started planning for the sequester?
Mr. Morton. I disagree with your characterization that back
in 2011, everyone felt that sequestration was going to happen--
--
Mr. Jordan. I am not asking how you felt. I am asking what
was the law of the land. And is it the practice for the
Director of ICE to say, you know, what? We are not going to pay
attention to what the law of the land says. We are going to
wait because we think it might not happen. We are going to wait
and not start to implement this, not start to plan for this
until January of 2013, some 18 months later.
Mr. Morton. We have to make good judgments and balance many
uncertainties, one of which was sequester. Another was the CR,
and another----
Mr. Jordan. Who makes the final decision? Who made this
decision to let the 8 felons back on the street? Is that your
decision or is that someone else in the Department who makes
that decision?
Mr. Morton. No. The actual decisions on each case were made
in the field.
Mr. Jordan. In the field. What does that mean?
Mr. Morton. That means by our local field officers.
Mr. Jordan. Do you have to sign off on that?
Mr. Morton. I do not.
Mr. Jordan. Mr. Chairman, I yield back.
Mr. Goodlatte. Will the gentleman yield? Would the
gentleman from Ohio yield to me?
Mr. Jordan. I forgot to do that. I would be happy to yield.
Mr. Goodlatte. Thank you.
I just want to make the point that when you talk about the
CR causing problems for you, you got the funding that you
requested to be able to maintain the mandate of 34,000 beds as
a result of that.
Now, you have a 5 percent cut moving forward from March the
first to the end of this year. That 5 percent cut, if you were
to apply it--and I do not think you should apply it equally
across the entire budget of your department, that you could
make keeping criminal aliens in detention a priority. But
assuming you went ahead with your decision, a 5 percent
reduction of 34,000 would be a reduction of about 1,700 people.
Now, you have already reduced it by 2,200, and we have a
document that has already been admitted into the record that
shows a plan to reduce it down to an average daily population
of 28,248.
So this is well beyond what sequestration would require you
to do, even assuming your policy objective of spreading your
costs evenly across the entire department. I would not do that.
I would look into these excess funds you have in other areas
and use those to keep people in there and not release them onto
the streets. If you need to work it down a little bit over
time, wait until you have got people who have been processed
through the system and been deported rather than putting them
back out on the streets in the country.
But it is now an opportunity for, I think, the gentleman
from Pennsylvania, Mr. Rothfus, to ask his questions. He is
recognized for 5 minutes.
Mr. Rothfus. Thank you, Mr. Chairman.
And thank you, Director Morton, for being here today, and
thanks for the hard work that you are doing at ICE and all the
men and women are working for this country there.
A few questions I am trying to track down. Your written
testimony stated that every individual released was placed on
an alternative form of ICE's supervision. Is there a standard
protocol for the level 1 offenders to have a certain type of
alternative form of supervision?
Mr. Morton. No, although generally a level 1 offender will
receive more attention than someone else. Again, it is a case-
by-case determination.
Mr. Rothfus. What kind of things would you be doing with a
level 1 offender once they are released?
Mr. Morton. Well, let me give you some examples. We would
determine do they have any United States citizen children, how
old are they, how long have they been in the United States.
Mr. Rothfus. Are these individuals given an ankle bracelet,
something like that?
Mr. Morton. Some of them may have an ankle bracelet. Some
of them may have a bond. It depends----
Mr. Rothfus. So there is no standard protocol for a level 1
offender.
Mr. Morton. No. The law allows us to pursue various forms
of supervision.
Mr. Rothfus. You testified on March 14 before the
Appropriations Committee's Homeland Security Subcommittee that
there were 10, not 8--that there were 10 level 1 offenders that
were released. Can you explain the discrepancy in your
testimony today?
Mr. Morton. Yes, I can. So that is correct. We testified
that there were 10. As it turned out, when we reviewed every
single one of the level 1 offender cases, two of the cases
involved misclassification in the computer system and their
criminal record was less severe than initially thought, and
they were reclassified as level 2 offenders.
Mr. Rothfus. So you had eight level 1 offenders, four of
whom have been apprehended.
Mr. Morton. Four of whom are in our custody and four of
whom remain----
Mr. Rothfus. Do you know where the other four are?
Mr. Morton. I do, indeed.
Mr. Rothfus. And why are they level 1 offenders, do you
know?
Mr. Morton. I do. So there was the gentleman that I
referred to earlier who was released in Arizona. He had
convictions for theft offenses and drug offenses. He is 68
years old and has been in the country as a lawful permanent
resident for 44 years, and an immigration judge found he was
not a danger to the community.
There were two other releases from Illinois, larceny and
criminal trespass. The individual has three United States
children, one with a degenerative eye disease. An immigration
judge found he too was not a danger to the community. The
second Illinois case involved an immigration offense and
misdemeanor offenses. He is 55 years old and has been in the
country 34 years.
And the California case involved burglary, vandalism, and a
DUI. He is a 23-year resident. Both parents are naturalized
United States citizens, and he is on ATD with GPS monitoring
24/7.
Mr. Rothfus. Now, you testified that you had no
communication with DHS leadership prior to the release of the
individuals. Is that correct?
Mr. Morton. That is correct.
Mr. Rothfus. Did anyone at ICE have any discussion with
anybody at DHS leadership?
Mr. Morton. Not that I am aware of.
Mr. Rothfus. Any discussion that you or anybody at ICE
would have had with anybody at the Department of Justice?
Mr. Morton. Not that I am aware of.
Mr. Rothfus. Any discussion that you or anybody at ICE
would have had a discussion with somebody at the White House?
Mr. Morton. Not that I am aware of.
Mr. Rothfus. Did you or anyone at ICE receive any talking
points or messaging points from the White House on how to
handle budget issues with respect to sequestration?
Mr. Morton. We have certainly received instructions from
the Office of Management and Budget on planning, how to execute
sequestration were it to come to pass.
Mr. Rothfus. In fiscal year 2012, it looks like the
appropriation that was allocated for custody operations was
just over $2 billion, $2,500,000,000.
Mr. Morton. Yes, sir.
Mr. Rothfus. Under the CR, that number is continued into
fiscal year 2013 to at least March 27, irrespective of the
sequester. The President requested $1.9 billion about for
fiscal year 2013 for custody operations. Is that correct?
Mr. Morton. Yes, sir.
Mr. Rothfus. Looking at the fiscal year 2012 number of
$2,500,000,000, 5 percent of that number is $102 million. So
that is the number I think we are looking at today with respect
to your concerns of custody--we were talking about $300
million, but the number is really $102 million in the context
of custody operations. Correct?
Mr. Morton. For custody operations, it is a little over
$100 million.
Mr. Rothfus. And you have already discussed that there is
$120 million sitting out there in user fees that is being held.
Mr. Morton. There is an unobligated balance in one of the
user fees. It does not provide for spending in direct terms for
custody operations, but it does allow--it could be used for
some custodial----
Mr. Rothfus. How many meetings did you have with your CFO
with respect to how to get through the budget----
Mr. Morton. Excuse me. I did not----
Mr. Rothfus. How many meetings have you had with your CFO
with respect to trying to work your way through this budget
process?
Mr. Morton. Oh, numerous.
Mr. Rothfus. And when did those meetings start?
Mr. Morton. So the meetings have been ongoing for the last
couple of weeks to make sure that we deal with sequester as it
plays out. Obviously, we are still waiting on our funding for
the next 6 months, and we want to make sure that we end the
year here on March 27 within the appropriations directions that
we have, less the money for sequester.
Mr. Rothfus. I yield back, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
The gentleman from Texas, Mr. Poe, is recognized for 5
minutes.
Mr. Poe. Thank you, Mr. Chairman.
I think I am last. So your day is done with Congress as
soon as I am through, I believe.
I want to go through the basics again. This decision was
not made by the President. It was not made by the Secretary of
Homeland Security, and this decision was not made by you. Is
that correct?
Mr. Morton. That is right. The decision was made by the
career officials in ERO and in discussion with the CFO.
Mr. Poe. So the financial folks made this decision
basically.
Mr. Morton. And the operational people responsible for it.
Mr. Poe. And the people that have been released--you know
who these people are. Is that correct? The 2,000-plus. We know
who these people are.
Mr. Morton. We as in the Agency.
Mr. Poe. You.
Mr. Morton. Yes.
Mr. Poe. Could you furnish the names and country of origin
to the Chairman?
Mr. Morton. We----
Mr. Poe. Could you do that or not? Either yes or no.
Mr. Morton. Well, with the exception of personal
identifying information that by law we are restricted from
giving, we are providing----
Mr. Poe. But that does not include their names or----
Mr. Morton. We are happy to provide a summary of the cases,
individual cases, and to the extent----
Mr. Poe. Let me reclaim my time. I reclaim my time. You can
give the names and the country of origin. You can do that.
Correct?
Mr. Morton. Do we know who these individuals are?
Mr. Poe. Yes.
Mr. Morton. Yes, sir.
Mr. Goodlatte. If the gentleman would yield.
Mr. Poe. Yes, I will.
Mr. Goodlatte. I would just inform the Director. The
Privacy Act does not apply to----
Mr. Morton. I understand if the full Committee or the
Chairman makes a request. I understand that.
Mr. Poe. So the answer to my question is, yes, you can
supply the names of the people and the country of origin to the
Chairman if he requests. It is a simple question. You can do
that.
Mr. Morton. If the full Committee were to request it, yes.
Mr. Poe. So the decision was made by the financial folks.
Now, my question to you is this. Do you understand, do you
see that the way this was handled could scare the American
public? I mean, have you got that message yet, or do you think
that occurred? I will tell you it occurred in my district. It
could not have been handled worse by allowing, all of a sudden,
the press to know 2,000 people that are being detained are
being released by your Agency, and you did not know about it.
So I think it could not have been handled worse. I am not
saying it was done on purpose to scare the people. I am saying
the result occurred that way, that it did have the effects of
scaring the American public.
I sent Secretary Napolitano a letter. She just, of course,
did not respond. I gave you a copy of the letter last week or
your staff. I would like for you to respond to these questions.
I would like this letter filed for the record. I ask unanimous
consent. Mr. Chairman, I ask unanimous consent.
Mr. Goodlatte. Without objection, they will be made a part
of the record.
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Mr. Poe. Thank you.
We have heard a lot about people being released, released,
released. And 40 percent do not come back for whatever reason.
They do not show up for their deportation hearing--many of
those people. Because of budget restraints, because there is
not enough room in the inn, the determination is made you are
released until your deportation hearing, which may be a year
from now or even longer, and 40 percent just do not show up.
Now, I was a judge in Texas for 22 years. I tried only
felony cases. If I had a 40 percent non-return of people who
were released on bond or pretrial release, they would have had
me in jail for that.
So it seems to me we operate under a system where Border
Patrol and ICE I think do a good job capturing folks, and then
all of a sudden, they are released. And then they go to capture
40 percent of them again because they do not show up for their
deportation hearing.
My question to you is this. Since this financial officer
made this decision--and you did not make the decision, the
Secretary of Homeland Security did not make this decision--can
the financial officer just decide--do you think he has or she
has the legal authority to release 30,000 of them? Do they have
the legal authority? If they had legal authority to release
2,000, does the financial officer have the legal authority to
release 20,000 or 30,000? You are a lawyer. Can you answer that
question?
Mr. Morton. I can. First, just to be clear, it was not the
chief financial officer. It was the operational leaders of ERO
in consultation with the chief financial officer.
Mr. Poe. Can this group of people who released the
individuals that you did not know about--can they just release
20,000? Do they have the legal authority to do that?
Mr. Morton. The people who are mandatory detention must be
detained.
Mr. Poe. That is not most of these people, though, is it?
Mr. Morton. The 2,228 individuals by definition the
instructions were they could not be subject to mandatory
detention. About two-thirds of the people in our custody right
now are subject to mandatory detention and would need to be
detained. Your scenario where we would release 30,000 people is
not possible because the law directs us to----
Mr. Poe. So they could release a third of them, though.
Mr. Morton. We could release those people----
Mr. Poe. In theory, you could release about a third of
them, which is about 10,000.
Mr. Morton. Those individuals that the law provides
discretion for.
Mr. Poe. It is a simple yes or no. Do you believe that your
Agency has the legal authority without judicial intervention,
Federal judge, immigration judge--without judicial
intervention, do you have the legal authority to release that
one-third, 10,000? Either you do or you do not.
Mr. Morton. We have the legal authority to release people
not subject to mandatory detention.
Mr. Poe. And that is a scary thought.
I yield back.
Mr. Goodlatte. I thank the gentleman.
Director Morton, I want to thank you. You have given 4
hours of your time, and I know it has not been your favorite
experience.
But I will tell you that I am very concerned with how this
has been handled. To me, here in the Congress, we are in the
midst of a very concerted effort on both sides of the aisle, a
bipartisan effort, to address the kind of immigration reform
that many people in this country think that we need to have and
that you struggle with the problems of our current system every
day.
Ms. Lofgren. Mr. Chairman?
Mr. Goodlatte. In the midst of this process, for the
release, without any notification to the Congress of 2,200
criminal aliens, or a portion of which were criminal aliens,
and the planned release, according to documentations here of
several thousand more, is not helpful when one of the critical
issues that we are going to have to deal with in the Congress
is how to convince the American people that if we make the kind
of immigration reform that is being discussed, that we provide
legal status to millions of people--how will we convince them
that this problem will not reset itself, it will not reoccur.
What changes can we make? What guarantees can we give the
public that our immigration laws will be enforced and we will
not have millions of people not lawfully in the country?
Now, you have limited resources to address that and we
certainly understand that. You have been given a mandate by the
Congress to retain 34,000 people, and to say that lower level
officials can automatically, not based upon individual
circumstances of the people being detained, but based upon
spending measures and the available funds, make this decision
without ever even consulting with you, without ever even your
consulting with the Secretary of Homeland Security, without
ever considering that if the Congress has a mandate and you
need the funds to meet the mandate, you should come to the
Appropriations Committee and ask for the reprogramming of funds
that are available and accessible for you to do that.
I think that given the set of circumstances we are in, it
is an unfortunate set of circumstances that we find ourselves
in, and this has not been helpful to that process because we
have got to build the confidence of the American people that if
we do comprehensive immigration reform in some way, shape, or
form, we are going to address the enforcement side of this just
as aggressively as we enforce the reforming of our legal
immigration system and the reforming of what we do with people
who are not lawfully here right now.
And I know the gentlewoman from California wanted me to
yield to her, and I will do that.
Ms. Lofgren. I thank the gentleman for yielding.
I think this has been a useful hearing getting the facts
out. I do not disagree that this could have been handled in a
better way. I think it raised alarms that were unnecessarily
raised.
But the issue of a 40 percent failure rate, failure to
appear rate, has been raised. That is from a 2007 IG report,
and I am wondering if we could ask the department to report
what is the current FTA rate, not right this minute, but
subsequent to the hearing.
Mr. Goodlatte. I think that is a fine request. We think
there is more recent data, but we would also ask the Director,
if that data is available for a more recent period than 2007,
to provide that to us, if it is available to you. And if we
have additional information, we will provide that to you as
well.
I thank the gentlewoman for her question.
And I thank the Director again for his participation here
today.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the Director or
additional materials for the record.
And with that, this hearing is adjourned.
[Whereupon, at 4:56 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Doug Collins, a Representative in
Congress from the State of Georgia, and Member, Committee on the
Judiciary
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