[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
BORDER SECURITY OVERSIGHT, PART II: EXAMINING ASYLUM REQUESTS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 17, 2013
__________
Serial No. 113-48
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas MARK POCAN, Wisconsin
DOC HASTINGS, Washington TAMMY DUCKWORTH, Illinois
CYNTHIA M. LUMMIS, Wyoming ROBIN L. KELLY, Illinois
ROB WOODALL, Georgia DANNY K. DAVIS, Illinois
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on National Security, Homeland Defense and Foreign
Operations,
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida JOHN F. TIERNEY, Massachusetts
JOHN J. DUNCAN, JR., Tennessee Ranking Minority Member
JUSTIN AMASH, Michigan CAROLYN B. MALONEY, New York
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
TREY GOWDY, South Carolina JACKIE SPEIER, California
CYNTHIA M. LUMMIS, Wyoming PETER WELCH, Vermont
ROB WOODALL, Georgia MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan
C O N T E N T S
----------
Page
Hearing held on July 17, 2013.................................... 1
WITNESSES
Mr. Joseph E. Langlois, Associate Director, Refugee, Asylum and
International Operations Directorate, U.S. Citizenship and
Immigration Services
Oral Statement............................................... 4
Written Statement............................................ 6
BORDER SECURITY OVERSIGHT, PART II: EXAMINING ASYLUM REQUESTS
----------
Wednesday, July 17, 2013,
House of Representatives,
Subcommittee on National Security, Homeland
Defense, and Foreign Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:15 a.m. in
room 2247, Rayburn House Office Building, the Honorable Jason
Chaffetz [chairman of the subcommittee], presiding.
Present: Representatives Chaffetz, Mica, Amash, Gowdy,
Bentivolio, Kelly and Welch.
Staff Present: Daniel Bucheli, Majority Assistant Clerk;
Mitchell S. Kominsky, Majority Counsel; Laura L. Rush, Majority
Deputy Chief Clerk; Scott Schmidt, Majority Deputy Director of
Digital Strategy; Sang H. Yi, Majority Professional Staff
Member; Jaron Bourke, Minority Director of Administration;
Devon Hill, Minority Research Assistant; Jennifer Hoffman,
Minority Press Secretary; Peter Kenny, Minority Counsel; and
Brian Quinn, Minority Counsel.
Mr. Chaffetz. I would like to begin this hearing by stating
the Oversight Committee Mission Statement.
We exist to secure two fundamental principles. First,
Americans have the right to know that the money Washington
takes from them is well spent. Second, Americans deserve an
efficient and effective government that works for them.
Our duty on the Oversight and Government Reform Committee
is to protect these rights. Our solemn responsibility is to
hold government accountable to taxpayers because taxpayers have
a right to know what they are getting from the government.
We will work tirelessly in partnership with citizen
watchdogs to deliver the facts to the American people and bring
genuine reform to the Federal bureaucracy. This is the mission
of the Oversight and Government Reform Committee.
I want to thank everyone for being here today as we embark
on Border Security Oversight: Part II, Examining Asylum
Requests.
I would also like to welcome the members here, guests in
the audience and those watching on television.
Today's proceedings are second in a series of hearings
designed to assess U.S. border security efforts, as well as
challenges to obtaining operational control of our borders. On
June 27, 2013, the subcommittee received testimony from
officials at Customs and Border Protection, Immigration and
Customs Enforcement, and the Government Accountability Office.
During the hearing, the subcommittee learned of a variety
of emerging threats to U.S. border security. This ranged from
flaws in the government's issuance and administration of B1/B2
visas, the entry/exit program and the lack of an exit program
in this Country, the increasing number of OTMs, also known as
Other Than Mexicans, coming across the border, particularly the
southwest border, drug trafficking organizations' extensive use
of ultra light aircraft to successfully move narcotics and who
knows what else across the southwest border, as well as the
problem we have with tunneling and other types of innovative
ways that people are coming across the border.
This debate should also include an examination of potential
flaws in our immigration system, especially the processes and
procedures relating to asylum requests. We need to be able to
look at visa reform. We are told that 40 percent of the people
who are here illegally came here legally, but also need to look
at how asylum requests, and the surge that we are seeing in
that, are being processed and what we can do as a nation to
combat the fraud that may be out there and look seriously at
how we do this process.
The Immigration and Nationality Act, commonly known as INA,
codifies requirements that define the process and standards for
the adjudication of asylum requests. Throughout the years, some
alternations to the INA have been made through the Illegal
Immigrant Reform and Immigrant Responsibility Act of 1996, as
well as the Real ID Act of 2005. Both predate my participation
here in this Congress.
These laws are based on the notion that foreign nationals
seeking asylum in the United States must demonstrate a well
founded fear that if they return home, they will be persecuted
based on one of five characteristics: race, religion,
nationality, membership in a particular social group, or
political opinion.
It is important to welcome foreign nationals to the United
States who make legitimate claims about being persecuted or
tortured in their home country but also adhering to the U.S.
Code. To obtain asylum in the United States, applicants can
pursue their claims in two ways, through affirmative or
defensive process. We may get into the details and specificity
of those but at this time I will not go through the details of
trying to explain that.
USCIS estimates that it will receive a total of 28,679
credible fear requests in fiscal year 2013. This is a 434
percent increase over the last five years. The majority of
credible fear requests appear to be coming from countries such
as El Salvador, Honduras and Guatemala. Individuals from these
countries constitute roughly two-thirds of all credible fear
interviews in fiscal year 2013.
It has been reported by the New York Times that USCIS'
asylum request process has been exploited by potentially
thousands of fraudulent applications. As reported in the Times
in December 2012, 26 individuals spread across ten law firms
were indicted for helping Chinese immigrants submit false
asylum claims. These ten law firms were responsible for filing
more than 1,900 claims.
Even with such numbers fraudulent claims processed by these
law firms represent only a small portion of the potentially
fraudulent asylum requests. There have been major cases in
Sacramento, San Diego and most notably, what happened in the
Boston bombing situation, which we want to dive into at this
hearing today.
On April 2, myself and Congressman Bentivolio traveled,
along with committee staff, to Yuma and Nogales, Arizona to
assess the Federal Government's most recent efforts to secure
the border. I visited the Eloy Detention Facility in Arizona
and was briefed by prison and ICE officials. The committee
learned that individuals classified as OTMs, again also known
as Other Than Mexicans, accounted for 900-plus inmates from 60
different countries of the approximately 1,500 in the Eloy
Detention Facility alone. This is one of at least nine
facilities that we have in that area.
Based on our conversations with CBP officers in Yuma and
Nogales, there appears to be an increase in the trend of OTMs
moving across the southwest border. A significant portion of
the OTMs are coming from Latin America, including Guatemala and
Honduras, in addition to India and China and other notable
countries. The increase of OTMs appears to be correlated with
some of the potential weaknesses in the legal immigration
system.
All of these statistics, personal accounts and news reports
point to an alarming trend that suggests there may be serious
flaws in our legal immigration system, in addition to showing
where some of the newest threats may be emerging.
During my time there, I went to Phoenix where I learned
that people that are trying to go through the asylum process
were granted a court date. If you were to go through that
process now, I was told the court dates they would get would be
in 2020. That does not seem to work for anyone.
We have three administrative judges dealing with thousands
of cases on their dockets, something we may not be able to
directly deal with here in this hearing but it is another
component of how we fix legal immigration. Today, we hope not
only to discuss these potential flaws to the system, but
solutions to ensure a more efficient system. We are the
Oversight and Government Reform Committee.
I want to emphasize that I support and commend the hard
work and dedication of the law enforcement officers, those at
CBP, ICE, USCIS and the men and women who are working in the
offices from the administrative posts to those doing the
interviewing. Those do a very difficult but very important job.
I look forward to hearing from our witness and productive
conversation about improving the asylum application process. We
are pleased to have Mr. Langlois here. We were hoping he was
going to be here at our hearing on June 27 and are a little
disturbed that you were unable to attend that first hearing
``Due to a lack of sufficient notice to prepare and clear
testimony, as well as prepare a suitable witness, USCIS will be
unable to appear at the upcoming June 27 hearing on border
security.'' That is the note we got. We find that wholly
unacceptable but nevertheless, we are glad you are here today.
We are interested in hearing your testimony.
At this time, if any other members have opening remarks, I
would be happy to entertain those. If none, I would like to
remind members that they have seven days to submit opening
statements for the record.
We will now recognize Mr. Langlois. He is the Associate
Director for Refugee, Asylum and International Operations at
the U.S. Citizenship and Immigration Services.
Pursuant to committee rules, all witnesses will be sworn
before they testify. Please rise and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
[Witness responds in the affirmative.]
Mr. Chaffetz. Thank you. Let the record reflect the witness
answered in the affirmative. You may be seated.
We will now recognize you, Mr. Langlois, for five minutes
but feel free to take some extra time should you so choose.
From there, we will ask you some questions. The time is now
yours.
STATEMENT OF JOSEPH E. LANGLOIS, ASSOCIATE DIRECTOR, REFUGEE,
ASYLUM AND INTERNATIONAL OPERATIONS DIRECTORATE, U.S.
CITIZENSHIP AND IMMIGRATION SERVICES
Mr. Langlois. Chairman Chaffetz, Ranking Member Tierney and
other distinguished members of the subcommittee, thank you for
the opportunity to testify at today's hearing on border
security.
I regret that we were unable to accommodate the last
hearing request. I sincerely hope that this delay has not
impeded your ability to address this very important issue of
border security.
I am Joseph Langlois, the Associate Director of the
Refugee, Asylum and International Operations Directorate within
USCIS at the Department of Homeland Security. My testimony
today will focus on how USCIS supports US efforts related to
border security while upholding our refugee protection
obligations.
The United States has a long and proud history of providing
humanitarian protection. We are signatories to a 1967 protocol
relating to the status of refugees which bars contracting
States from returning refugees to their countries of feared
persecution. Our obligations under the protocol are primarily
implemented through our Nation's asylum process which involves
proceedings under two tracks: one, an individual applies for
asylum affirmatively with a USCIS asylum officer and two, an
individual seeks asylum before an immigration judge under the
Department of Justice.
In addition to the interior asylum process, the process
that is more directly tied to border management, is an
incredible fear screening process which will be the subject of
the remainder of my testimony.
Prior to the immigration reforms of 1996, all individuals
apprehended attempting to enter the United States unlawfully
were placed in full proceedings before an immigration judge.
These proceedings were time consuming and resource intensive.
Individuals in such proceedings were generally not detained.
The 1996 reforms allowed for the expedited removal of
individuals without proper documentation or those apprehended
close to a U.S. border shortly after an illegal entry. All
individuals placed in expedited removal proceedings are subject
to mandatory detention and prompt return to their countries of
origin.
In creating this new removal process, however, Congress was
mindful of the United States' treaty obligations to the status
of refugees and created a screening process known as credible
fear to prevent persons from being returned to countries in
which they would be persecuted or tortured. The USCIS Asylum
Division administers the credible fear program.
Persons subject to expedited removal who indicate a fear of
return are referred to a specially trained USCIS asylum officer
who conducts an in-person interview to determine whether there
is a significant possibility that the individual will be found
eligible for asylum or withholding of removal. This
determination does not confer any immigration benefit. It is
simply a screening process employed to identify potential
refuges. The final decision for asylum eligibility rests with
an immigration judge.
Credible fear interviews are conducted by USCIS while the
individual is detained. USCIS conducts security checks,
including biographic and biometric checks. If USCIS determines
an individual does not have a credible fear, he or she is
subject to immediate removal unless the individual requests a
limited review by an immigration judge of that decision.
Those found to have a credible fear are placed into removal
proceedings where an immigration judge ultimately adjudicates
any application for relief from removal. Simply put, they get
their day in court.
Credible fear's screening standard was purposely designed
to be a low threshold requiring only a significant possibility
that an individual may be found eligible for asylum or
withholding of removal. Historically, 87 to 98 percent of
individuals who are placed in expedited removal do not express
a fear and are not subject to the credible fear screening, a
small percentage of individuals placed in expedited removal who
do express a fear of return and are subject to the credible
fear screening. The majority can meet the low threshold that is
established before they get their day in court.
The expedited removal process is a critical tool for
effective border management. The credible fear screening
process supports the continued operation of these indispensable
border efficiencies by providing a mechanism that ensures U.S.
compliance with its international treaty obligations relating
to refugees.
Thank you for the opportunity to testify and I would be
happy to answer your questions.
[Prepared statement of Mr. Langlois follows:]
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Mr. Chaffetz. Thank you, Mr. Langlois.
I want to recognize myself for five minutes. Let's go
through some metrics first and then I want to get into another
thing.
How many people do you have that actually do these
interviews?
Mr. Langlois. Presently, we have approximately 270 asylum
officers that interview.
Mr. Chaffetz. How many cases do you have pending?
Mr. Langlois. With the credible fear process, we probably
have pending at any given point I would say 1,000 to 2,000
cases. We have a 14-day turnaround on our cases.
Mr. Chaffetz. How many are you going to be processing or
doing this year?
Mr. Langlois. We are on track to interview all cases that
are referred to us which would be approximately 29,000 cases in
the credible fear context.
Mr. Chaffetz. How much of an increase is that over the last
five years?
Mr. Langlois. That is an increase of approximately 400
percent as the newspaper account had it. The rates flow back
and forth. For example, we had 13,000 in 2001 but we hit a low
in 2009 of 5,300 and now we are up to, as I said, approximately
29,000.
Mr. Chaffetz. How much time does it take to go through one
particular case?
Mr. Langlois. An individual spends approximately an hour to
hour and a half interviewing. I would estimate an additional 45
minutes to an hour would be for documenting the case and the
decision, so I think a decision reasonably takes about two to
two and a half hours.
Mr. Chaffetz. Part of the justification for asylum is the
idea that there is some fear if they return. What happens when
someone actually does return to that area? Do you have any
visibility when somebody actually goes and returns to the
country?
Mr. Langlois. We are only returning individuals we
ascertain do not have either a credible fear or a well founded
fear.
Mr. Chaffetz. If they go through the process and are
granted asylum, is there any flashing red light that goes off
at any department or agency that says wow, this person said
they had some credible fear coming out of Russia, but now they
have gone back to Russia? Does any bell ring, does anybody get
a warning?
Mr. Langlois. Individuals that avail themselves of the
country that they said they feared, their asylum status can be
terminated under the statute. We do have referrals from CBP.
They are not great in number though.
Mr. Chaffetz. Is there a system in place for that to show
up on your radar screen?
Mr. Langlois. The individual entering the country returning
back to the United States would go through CBP at the
inspection point.
Mr. Chaffetz. So on the departure, there is no visibility
for you?
Mr. Langlois. That is my understanding.
Mr. Chaffetz. In the case of the Boston bombing situation
where you have the father of the two suspects wanting to return
and go to Russia, that didn't show up on anyone's radar screen?
Mr. Langlois. I am precluded due to confidentiality
regulations from discussing that case in this forum. We would
certainly be quite happy to provide you a briefing in a
confidential and classified setting concerning USCIS'
interactions with the Boston bombers.
I can speak in general, however, that individuals that do
return, they must return to their country of feared persecution
which they were granted asylum based on that fear to that
country, they can be subject to termination of asylum if they
avail themselves.
Mr. Chaffetz. You said it was a small number. How often
does that happen?
Mr. Langlois. I do not have that. I have a lot of
statistics but I do not have that statistic handy now. I can
certainly get that for the record.
Mr. Chaffetz. In two notable cases, one in New York
regarding the ten law firms and another one in California,
according to press reports, there could have been about 1,800
people that were put through that process. How many of those
have you re-interviewed since it came to light that they may
have been fraudulent?
Mr. Langlois. We are reviewing all cases. This is an
ongoing investigation. Arrests are still being made. We have
captured the data on who is associated with those law firms,
who the law firms represented. We are tracking them and we will
be examining each individual case. The prosecution is still
ongoing. We are in the evidence gathering stage.
Mr. Chaffetz. These did not happen last week. One case goes
back to 2003. How many of the 1,800 have you actually re-
interviewed?
Mr. Langlois. That is a figure that I do not have. I do
have that we have captured all of these cases. I can get that
figure back to you. Again, it is an ongoing investigation, so
we are looking for evidence coming from the individuals
themselves when they plead. That would be very good to have in
the termination.
Mr. Chaffetz. My time has gone past. Let me now recognize
the gentleman from Vermont, Mr. Welch, for five minutes.
Mr. Welch. Thank you, Mr. Chairman. Thank you for calling
this hearing. I am sorry I missed that trip with you; it
sounded pretty productive.
The Oversight Committee is particularly concerned with
issues of waste, fraud and abuse, as you know. Are there
credible concerns, as you see it, that terrorists and criminals
have fraudulently abused this process to gain asylum
protection?
Mr. Langlois. We take our responsibilities of detecting
fraud, deterring fraud, ensuring national security very
seriously.
Mr. Welch. I understand that. I know you do that and I
appreciate that you do it. Some people are concerned about it.
My question is whether, in your view, that is a valid concern
and what would be the basis that it is or isn't?
Mr. Langlois. I think it is a valid concern. With any
immigration benefit, we are very wary of individuals exploiting
the immigration benefit to do the Nation harm. We have a number
of things we do to take that into consideration when we proceed
with our adjudication of cases.
Mr. Welch. It is a tough thing. You have someone with an
asylum case. If they are to succeed in getting asylum, it means
they have to be able to convince us they really have a threat
that awaits them if they return home. On the other hand, there
are a lot of people who see that as an opportunity to try to
get in. How do you figure that out? It is a very tough
interview, I would imagine.
Mr. Langlois. It is a very difficult job to have. In the
affirmative context, we train our officers very well. We think
the best trained officer is the best defense against fraud and
addressing national security concerns. We have an approximate
hour and a half to two hour interview with each case, we run a
number of different security checks on them, we also study
country conditions and we have a system that if we do find they
commit fraud or there is a national security concern, we
immediately place that individual into removal proceedings
before an immigration judge as well as we liaise ICE, the FBI
and the U.S. Attorney to prosecute cases that are committing
fraud.
As an example, the chairman rightly illustrated the recent
New York case. We went to the FBI with that case and showed
them the evidence as well as ICE and began the ball rolling to
have that case prosecuted. It was a successful prosecution. We
have had many successful prosecutions of cases throughout my
tenure with the USCIS for the last 20 years. I would be happy
to provide those for the record.
Mr. Welch. Are there any provisions in the current law
that, in your view, could be amended so as to improve the
likelihood that you would not see as much abuse of the asylum
process to get the balance right? We want to have this Country
open to provide asylum to people who are eligible for it but
obviously, we do not want the system to be abused.
Mr. Langlois. I think the asylum core effectively utilizes
the present statutes in order to detect and deter fraud, as
well as address national security concerns.
Mr. Welch. How much evidence is there of this asylum
process having been abused?
Mr. Langlois. I guess it depends on your definition of
abuse. We have approximately a 45 percent approval rate in the
affirmative asylum context which means that we place 55 percent
of the individuals applying for asylum directly in removal
proceedings. I would not say that 55 percent are abusing the
process, but it would be a subgroup of that that we would
refer.
Mr. Welch. What would you say was the normal time between
application and completed adjudication?
Mr. Langlois. With the credible fear context, we are
dealing with a 14-day adjudication period. The vast majority of
cases are interviewed and adjudicated within 14 days of
referral. With the affirmative asylum process, for many, many
years, we had a very high success rate, 85-90 percent success
rate of 60-day turnaround.
We have begun to slip on that because asylum applications
have begun to increase. However, we have new officers coming
onboard who will be addressing that issue. We should be back to
60 days next year.
Mr. Welch. Thank you.
Mr. Chairman, I yield back.
Mr. Chaffetz. Thank you.
I now recognize the gentleman from Michigan, Mr.
Bentivolio, for five minutes.
Mr. Bentivolio. Thank you very much, Mr. Chairman. Thank
you for the opportunity to tour our poorest border as was
explained by ICE and the Border Patrol last time we had this.
I am rather new here in Congress and there seems to be a
lot of camouflage, lies, half truths and distortions on many
issues here on Capitol Hill. I learned a long time ago if you
are concerned about an issue and want full understanding, you
have to talk to people with boots on the ground. You have to
get into the trenches. That is exactly what we did and I would
like to thank you, Mr. Chairman, for giving me that
opportunity.
Sir, thank you for coming here today. I have just a few
questions. What percentage of those who must appear before the
courts actually show up for proceedings?
Mr. Langlois. That is a statistic I do not have. We place
people into removal proceedings. It is ICE that litigates the
case with the trial attorneys, with the Department of Justice,
so the Department of Justice, the Executive Office of
Immigration Review, would have those statistics.
Mr. Bentivolio. Let me see if I correctly understand this.
If somebody is picked up on the border, they just came through
the fence and claim asylum, what happens then? Where do they
go?
Mr. Langlois. The individual, if they are apprehended and
placed into expedited removal, is removed if they do not
express a fear. If they do express a fear, they are in
detention centers. The asylum officer interviews the individual
when they are in the detention center. We officially do this by
either sending individuals to the detention center or making
use of VTAL in order to gain efficiencies in the interview
process.
Mr. Bentivolio. What is VTAL?
Mr. Langlois. It is video conferencing. We have officers
there but we augment those officers by video conferencing some
of the interviews.
If we determine that the individual has a credible fear,
which is a low screening standard, it takes approximately 14
days to turn around that decision, the individual is placed
into removal proceedings. That individual is still detained.
USCIS gathers information based on the security checks as well
as the interview that ICE or the immigration judge utilize to
determine if the individual should remain in detention or get
paroled or a bond. It is ICE and the immigration court that
determines if the person remains in detention. USCIS gathers
information for that decision but we do not make that decision.
Mr. Bentivolio. So they go on the bond, on probation?
Mr. Langlois. Yes.
Mr. Bentivolio. What percentage of those never return?
Mr. Langlois. That would be an immigration judge statistic
coming from the Department of Justice.
Mr. Bentivolio. Do they all return? Do you have any general
idea? You are there.
Mr. Langlois. The no-show rate for the judges varies
considerably based on nationality, based on location, but for
their statistics, I would be more than happy to liaise with our
Office of Legislative Affairs to get those statistics from the
Department of Justice.
Mr. Bentivolio. I would appreciate that. You had a 400
percent increase in asylum requests?
Mr. Langlois. We had a 400 percent increase in the credible
fear requests. The asylum program, if you are attempting to
enter the United States, and you are apprehended and placed in
expedited removal, you are subject to credible fear screening
if you express a fear. That is one program.
The other program we manage is called the Asylum
Application Process. Individuals already in the United States
who are not in removal proceedings, can step forward
affirmatively and apply for asylum. We are on track this year I
think to get approximately 45,000 applications for the
Affirmative Asylum Program.
That contrasts with over 150,000 applications in 1995 prior
to the reform of the program. The numbers ebb and flow on
credible fear as well as the affirmative process. I would be
more than happy to submit statistics to show the ebbs and flows
of these numbers.
Mr. Bentivolio. What percentage of denials are overruled by
immigration judges?
Mr. Langlois. Again, these are statistics that would have
to come from the immigration judges, but it is a high number.
Mr. Bentivolio. I have one last question. Do you think
judges have too much discretion in determining asylum requests?
Mr. Langlois. I don't have an opinion on that. I read their
BIA decisions and I have seen that they adhere to the law.
Mr. Bentivolio. Thank you very much.
Thank you, Mr. Chairman. I yield back.
Mr. Chaffetz. Thank you.
I will now recognize the gentleman from Florida, Mr. Mica,
for five minutes.
Mr. Mica. Thank you.
Let me turn back to some of the Chairman's line of
questioning about the press reports. It looks like we have some
asylum mills, some law firms that are cashing in and processing
huge numbers of these asylum claims. Some of the figures are
disturbing. It looks like some of those firms have filed more
than 1,000 requests since 2006, charging a pretty hefty fee. It
also appears that in the California case that the Chairman also
referred to, you have coaching, charging high fees and also a
history of abuse of the system.
Have you taken any action against those firms to suspend
them and are you going back and reviewing some of their
requests more thoroughly?
Mr. Langlois. The answer to both of those questions would
be yes. We are actively involved in the detection of fraud,
especially on a large scale. We liaise very closely with ICE
and the FBI. As I stated, the chairman's reference to the case
in New York, we initiated that with the FBI. We gather
information with the Fraud Detection and National Security
Branch of USCIS and actively pursue these cases.
Mr. Mica. You are going back and looking. Are there any
firms that stand out that you found?
Mr. Langlois. The recent cases are up in New York. I don't
have in my head the other firms.
Mr. Mica. Are there firms with multiple fraudulent
applications?
Mr. Langlois. Yes.
Mr. Mica. Do you have the means to put them on suspension
or notice that you are not accepting their applications?
Mr. Langlois. Correct. They are disbarred.
Mr. Mica. Have you done that?
Mr. Langlois. The cases that are disbarred, we do not
accept them as the attorney in the case.
Mr. Mica. No, no, that is not what I am saying. Do they
have any restrictions then placed on them when you find
multiple offenses? Do you say, one, two, three strikes and you
are out. We are not taking your applications? Are you just
taking more of their applications and reviewing them?
Mr. Langlois. I think if an individual is disbarred, we are
not accepting the applications. I think it would take
disbarment to do that.
Mr. Mica. Have you disbarred any?
Mr. Langlois. It would not be my office that disbarred.
Mr. Mica. But you would be aware?
Mr. Langlois. Correct.
Mr. Mica. Are there firms that have been disbarred?
Mr. Langlois. Yes, there are firms that have been disbarred
and we have assisted in the incarceration of numerous
attorneys. I could give you the listing of all the cases that
we assisted in.
Mr. Mica. The main thing again is going after this. I noted
a disparity too in some of the young officers and the old
officers in one of the reviews we were provided with the
processing. I think the older officers, who are doing these
requests, only approved about 10 percent and the newer officers
approved much higher percentages, 70 to 80 percent. Are you
aware of that?
Mr. Langlois. I am aware of a study I believe was done by
Georgetown University that examined this question. They found
that individuals who began, had a higher approval rate than
individuals mid-career and then the approval rate came back up
again, actually. There was a slight aberration between the
middle group of folks that had been there and the middle term.
Mr. Mica. One of the more famous asylum cases is the family
of the Boston bombers. It looks like the father, Anzor, was
granted asylum back in 2002. That covered his wife and
children. I guess the one son who died had an opportunity to go
back to Chechnya. There is also a provision, I guess, either in
the law or some of the rules that if an applicant returns to a
country he or she is supposedly fleeing, there would be some
review. Is that still the case? What happened in this
particular case?
Mr. Langlois. As I mentioned previously, I am unable to
discuss this case due to confidentiality regulations. I would
be more than willing, of course, to discuss this in a different
forum, a classified forum, as well as with other partners of
USCIS so we could give you the information.
Mr. Mica. Let us not talk about the case. Let us talk about
the instance of an individual who seeks asylum and the children
go back to the country they are fleeing. What is the policy?
Mr. Langlois. An individual who returns to his country of
origin from which he was granted asylum, if he avails himself
of the opportunity of protection from that government, we can
terminate the individual's asylum status.
Mr. Mica. Thank you.
Mr. Chaffetz. I would now recognize the gentleman from
South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Can you tell me all the methods you use to determine
whether or not there is fraud in the assertion for an asylum
claim either affirmatively or defensively?
Mr. Langlois. I can certainly address the affirmative side.
The defensive side would have to be done by ICE and the
immigration judges because they control that procedure.
Mr. Gowdy. Let us do affirmative. You get an application
for asylum, what is within bounds and what is out of bounds in
terms of assessing the credibility of the claim?
Mr. Langlois. An individual will file for asylum, they are
immediately scheduled for a fingerprint appointment. We do not
interview any individual unless they submit their fingerprints
to us. When the individual arrives at the office, we verify,
based on one print, one to one, that is the individual who
actually submitted the fingerprint, so we have a check on that.
We submit the fingerprints to the FBI. We also do a name
check with the FBI.
Mr. Gowdy. That would be the credibility that the person
asserting asylum is in fact the person. What I am getting at is
the credibility of the assertions that underlie the asylum
claim in general. It is not an identification issue, this is a
weighing and balancing of the credibility of the claim made.
How do you adjudicate that?
Mr. Langlois. Often in our security procedures, we will
discover information that will contradict the information given
to us by the applicant and that can result in a finding of the
person not being credible and therefore referred to an
immigration judge to decide asylum.
Mr. Gowdy. A lack of credibility in other parts of the
application can impact as assessment of the credibility with
specific reference to the asylum. If a supervisor
hypothetically were to have said we are not investigating
potential fraud, we are adjudicating asylum claims, what does
that mean because I would think the two are hopelessly
interlocked?
Mr. Langlois. The two are.
Mr. Gowdy. If someone were to say we are not investigating
potential fraud, we are adjudicating asylum claims, you would
reject that assertion by a supervisor as being, at first blush,
nonsensical and secondarily, you concede they are hopelessly
interlocked?
Mr. Langlois. You have to have integrity in the asylum
program. You must deter fraud, you must detect fraud.
Mr. Gowdy. So every assertion made by the applicant is fair
game in terms of assessing whether or not the person is
credible?
Mr. Langlois. The assertions made by the applicant that are
material to the claim can be used in a credibility
determination.
Mr. Gowdy. Tell me the difference between material and in
material?
Mr. Langlois. Off the top of my head, I am drawing a blank.
Mr. Gowdy. You used the word ``material'' and that word I
have always found to be interesting. It is usually used
alongside the word ``relevant.'' I think I understand what
relevant means. I have really never understood what material
means because when you are talking about someone's credibility,
everything is material to that.
Tell me how an assertion over here which is demonstrably
false would not impact an assertion over here within the same
application?
Mr. Langlois. An individual that is making a false
statement concerning his or her age may not be material to the
claim.
Mr. Gowdy. Why not?
Mr. Langlois. If the individual's identity can be
established and if he can explain why he was trying to be seen
as being older rather than younger or younger rather than
older.
Mr. Gowdy. What would be a good reason to lie about your
age?
Mr. Langlois. An individual could lie about their age in
order to be an unaccompanied minor in front of an immigration
judge and therefore, get interviewed by an asylum officer
because they refer the case back to us.
Mr. Gowdy. How will you guarantee that their
disingenuousness is only confined to age?
Mr. Langlois. That is a very difficult endeavor.
Mr. Gowdy. How do you do it?
Mr. Langlois. We interview the individual for an extended
period of time.
Mr. Gowdy. How long is an extended period of time?
Mr. Langlois. One, two, three hours at some point.
Mr. Gowdy. How do you corroborate the assertions they have
made?
Mr. Langlois. We examine if all other testimony the person
gives is consistent and there is a plausible explanation for
his representation.
Mr. Gowdy. Who determines plausibility?
Mr. Langlois. It would be the asylum officer with 100
percent supervisory review. All decisions are reviewed by a
supervisor.
Mr. Gowdy. But you categorically reject a supervisor who
claims we are not investigating potential fraud, we are
adjudicating asylum claims because I find that statement to be
vexing.
Mr. Langlois. Correct.
Mr. Gowdy. You would categorically reject this?
Mr. Langlois. I believe that our duty is to adjudicate
asylum requests and at the same time, deter and detect fraud,
ensure national security, place individuals in removal
proceedings that are perpetrating fraud, liaise with
investigators who can prosecute individuals who commit fraud.
Mr. Gowdy. Can you make sure your supervisors know that?
Mr. Langlois. I will reiterate.
Mr. Gowdy. Please do because I am reminded of that
paraphrase by Frederick Nietzsche, I am not mad that you lied
to me, I am mad that I can't believe anything else you tell me.
The notion that you can lie in this compartment of life and you
have a lot of veracity in all other compartments just common
sense indicates otherwise and so does history.
I yield back, Mr. Chairman.
Mr. Chaffetz. Thank you.
I will now recognize myself for five minutes.
How many supervisors are there?
Mr. Langlois. I think we have probably 50 supervisors.
Again, I would have to check.
Mr. Chaffetz. What is the total number of cases that you
will go through? You have 270 agents. What is the total number
of cases they are going to go through in a year, this year,
projected?
Mr. Langlois. We are going to go through 29,000. Again,
these are estimates. I can certainly follow up with this. We
are going to go through 29,000 credible fear cases. In
addition, we are going to go through I would say maybe 30,000
affirmative requests, 25,000-30,000 affirmative requests.
Mr. Chaffetz. Those 270 people are going to essentially go
through 59,000 requests, is that fair to say?
Mr. Langlois. Yes, cumulative.
Mr. Chaffetz. The 59,000 cases are going to be 100 percent
reviewed by 50 people?
Mr. Langlois. Correct.
Mr. Chaffetz. How much time does that give each supervisor
to go through each case? Basically, they are just looking at
the documentation, right?
Mr. Langlois. They focus very much on the assessment.
Mr. Chaffetz. How much time does each supervisor spend on
each case?
Mr. Langlois. A supervisor supervises roughly six
individual asylum officers, asylum officers adjudicate
approximately 9 cases a week so that is 50 cases a week a
supervisor has.
Mr. Chaffetz. You have 50 people supervising 59,000 cases.
How many fraud investigators do you have?
Mr. Langlois. We have two FDNS officers at each asylum
office. I think the Los Angeles office has three. We have eight
asylum officers and probably have 17 FDNS officers. Again, I
will check the record on this.
Mr. Chaffetz. You have 17 fraud investigators going through
59,000 cases, in addition to the 1,800 cases from just the two
I mentioned?
Mr. Langlois. Correct.
Mr. Chaffetz. How many ongoing fraud investigations do you
have at this time?
Mr. Langlois. I will have to provide that number at a later
time. I do not have that number handy.
Mr. Chaffetz. If you had to guess, what would you guess?
Mr. Langlois. I could not guess, but we have had a number
of successful prosecutions.
Mr. Chaffetz. Affirmative cases, you said that 45 percent
approve, 55 percent are due for removal. Are these cases
immediately removed? If you came from Romania for instance, and
you are ordered to be removed, what would happen to you?
Mr. Langlois. Individuals we place into removal proceedings
get a de novo hearing in front of an immigration judge on that
asylum request.
Mr. Chaffetz. How long does it take to actually get before
a judge? If they are released on their own recognizance, you
can go, show up at this court date.
Mr. Langlois. In the affirmative context, the individuals
are not detained. In the credible fear context, individuals are
detained when we issue the credible fear decision. In the
affirmative context, it varies from locality to locality how
long the hearing is.
Mr. Chaffetz. When I hear the Phoenix cases, that they are
going to get a hearing, it has been denied. They said no. Your
investigator came to the conclusion this is denied, which
happens in 55 percent of the cases, but they are going to say,
I would like a hearing. That hearing in Phoenix, to my
understanding, is in 2020. Is that correct?
Mr. Langlois. Again, that is the immigration judges.
Mr. Chaffetz. Understood, it is outside your lane but you
are directly connected here.
Mr. Langlois. I have no reason to dispute it.
Mr. Chaffetz. You are telling me I have to go to the
Department of Justice to find out how many people actually show
up. What happens when they don't show up, they have been
ordered to be removed? Who has the jurisdiction, who has the
responsibility? Now we have to go find this person, track him
down and kick him out of the Country? Who does that?
Mr. Langlois. That would be ICE.
Mr. Chaffetz. Why is it when I talk to ICE, they say they
do not have jurisdiction to do that? Why does that happen?
Mr. Langlois. That I cannot answer.
Mr. Chaffetz. How many people are on that list that ICE is
supposed to remove?
Mr. Langlois. We put these individuals into proceedings. We
put them into removal proceedings.
Mr. Chaffetz. They are denied, 55 percent of the cases are
denied, then they have to go before a judge. In the meantime,
they are here for what could be, in the case of Phoenix, seven
years. What is their status during those seven years?
Mr. Langlois. They do not have status during those seven
years.
Mr. Chaffetz. But they can apply and get a work card,
correct?
Mr. Langlois. If the case is pending over 180 days, they
can apply for work authorization.
Mr. Chaffetz. To whom do they apply for work authorization?
Mr. Langlois. With USCIS.
Mr. Chaffetz. How many of those are given out each year,
work authorization forms? You have someone who has been denied
and now we are going to give them a working card.
Mr. Langlois. Technically, we find them not eligible for
approval and we refer the individual. Their application is
still pending in front of an immigration judge when we refer.
That is why the clock keeps on ticking on their application. We
have a very good record of adjudicating our cases within 60
days to give the judges the 120 days on their clock to finish
these cases.
Mr. Chaffetz. That is one of the concerns I guess this
committee needs to drive into because you are denying them,
they get in another line, we basically shuffle the paperwork
over to somebody else. They get free health care, free
education and get a worker card where they can go to work in
the United States and compete with an American who is a United
States citizen paying their taxes and they have to compete with
someone you have denied. How do we fix this? How do we fix
that? What is your recommendation to actually solve that
problem?
Mr. Langlois. The Asylum Division has been very successful
in adjudicating our cases within a very short time frame. We
have recently slipped. We are on track to get back on track due
to the hiring of new officers. We are going to train them very
well in the coming year. We will get back on track to our 60
days so they will not get work authorization if we complete the
case within 120 days.
Mr. Chaffetz. I guess the problem is when they get in this
other line as they do in Phoenix, it is going to be seven years
before they get to those cases and they may or may not ever
show up. Then someone has to try to chase down these people.
Are there hundreds of thousands of people in this category? How
many people fall into this category, tens of thousands of
people?
Mr. Langlois. That would be an Immigration Court statistic,
however, we do refer approximately 20,000 individuals to the
Immigration Court system a year.
Mr. Chaffetz. Those numbers are absolutely stunning.
How do you keep track of them in between the time you say
you are denied but you now need to go to court? Whose
responsibility is it to keep track of them between then and
they actually show up to the judge? How do you do that?
Mr. Langlois. We have a very good system to track the case
when it is filed with us and then when we file it on the court.
Mr. Chaffetz. But no one is paying attention to these
people.
Mr. Langlois. The immigration judges have a system in place
that is their case management system as well as the trial
attorneys, Office of Principal Legal Advisors in ICE also has
the A file and the case management system.
Mr. Chaffetz. Somehow, some way this committee is going to
find out from the Department of Justice how many of those
people are committing crimes, how many of those people are
committing the various crimes across the whole spectrum. There
is nothing more frustrating. They are here, they have been
denied, we are going to give them a court date but take years
to do it. No one is paying attention to them. It is so
frustrating.
My time has expired. I will now recognize the gentleman
from Michigan, Mr. Bentivolio, for five minutes.
Mr. Bentivolio. Thank you again, Mr. Chairman.
This is mind boggling. A person can come across the border,
get arrested, go to court, claim asylum and we have these 270
officers who can determine whether they are telling the truth
or not. I am getting the impression the only real evidence is
their word that they are going to be tortured or persecuted
unfairly in their home country, is that correct?
Mr. Langlois. No. The REAL ID Act specifically states that
we can require identity documents unless the individual is
deemed to be unable, it is unreasonable, I think, that the
individual would have those documents, so we do deny based on
the lack of documentation. However, there is an allowance for
exceptions to that rule in the REAL ID Act.
Officers do nine cases a week, so they have a good amount
of time, four hours, to dedicate to each individual case. If
they come up with complicated cases, we will slow down the
interviews so they can do less than nine cases a week, but we
do take care to thoroughly interview and vet asylum
applications.
Mr. Bentivolio. What do you mean by documentation? They
have a driver's license from their home country or they have a
passport or they have a newspaper article saying the police are
looking for them in their country and they are going to torture
them? I mean come on, what is credible evidence?
Mr. Langlois. Credible evidence can be testimony alone. The
law allows for that. However, an asylum officer can request
documents if they are reasonably available to the applicant.
Mr. Bentivolio. Reasonably available, you just left your
home country, you fled, so do they have a lawyer advising them
that when they sneak into the United States, they have to have
credible evidence like documents? I have a real problem with
this. You are taking people at their word.
When you said an officer must see if there is a plausible
case, is that a legal standard?
Mr. Langlois. No. The credible fear standard is a
significant possibility of establishing eligibility in the full
asylum hearing in front of an immigration judge. In the asylum
context, it is a well founded fear. That is the legal standard.
Mr. Bentivolio. If they are coming from a country where we
know there is some political or ethnic cleansing, that would be
credible evidence, right?
Mr. Langlois. Country conditions by reputable sources, the
Department of State, Human Rights Watch, can inform us of the
conditions in the Country and inform the adjudication of the
case.
Mr. Bentivolio. Out of 45,000 people, I think you said
45,000 cases, how many of those do you think are coming from a
country where there is something like that going on? Looking at
the daily reports for Eloy Prison, 60 different countries are
represented. Do you think there are 60 countries that are
having ethnic cleansing or something where someone has to
leave?
Mr. Langlois. Persecution is not only limited to ethnic
cleansing. The majority of individuals applying for asylum are
coming from countries where there are records of violence,
political persecution, persecution on account of race, and
persecution on account of religion, yes.
Mr. Bentivolio. Thank you very much, Mr. Chairman.
Mr. Chaffetz. Thank you.
I would now recognize the gentleman from Florida, Mr. Mica.
Mr. Mica. Thank you.
First of all, Mr. Chairman, even though the witness would
not provide us in open testimony what took place with the
Tsarnaev family and the return of Tamerlan, one of the children
who was killed after the terrorist attack in Boston, I would
like to ask the committee if we could obtain that information,
keep it out of the record, but share it with the members, if
possible?
Mr. Chaffetz. Yes, that is the intention.
Mr. Mica. I have additional questions I would like to
submit that also deal with that particular case because the
witness did testify that it is at least their current policy to
review those who return. I want to see what happened in that
case.
You are under some pressure to push these cases through. It
sounds like you have quite a few to process?
Mr. Langlois. Yes, we are limiting the affirmative cases to
18 cases a pay period. We have held steady with that rate with
the option of requesting more time if they can explain why they
need more time.
Mr. Mica. Some whistleblowers have told the committee that
some of those processing these asylum requests are not
intimidated but pushed to move them through the system as
quickly as possible. They feel there is inadequate time to
ensure the applications are accurate. Are you aware of that?
Mr. Langlois. I am aware that for a good number of years
individuals have questioned the 18 cases per pay period or 9
cases a week model. We have taken a look at it. We think it is
a reasonable caseload to do. We have to keep in mind that we
are spending money of other immigrants applying for benefits,
that is how the program is funded. We do think it is a good
balance and we have not increased that due to an increase in
applications.
Mr. Mica. I am doing a review with another subcommittee of
bonuses that are given to different agencies. Were bonuses
given to your asylum process workers?
Mr. Langlois. Yes, awards were given to asylum officers
when allowed.
Mr. Mica. What was that based upon? Was it based upon
production or was it based upon performance or rejection?
Mr. Langlois. It was based upon performance. We analyzed
the individual's quality of decisions, we analyzed the
individual's productivity rate and we also analyzed the
individual's timeliness.
Mr. Mica. Do you know the total amount of bonuses?
Mr. Langlois. Not offhand, but I could get that for you.
Mr. Mica. Will you provide that to us?
Mr. Langlois. Yes.
Mr. Mica. What is the maximum bonus that was given, do you
know?
Mr. Langlois. Off the top of my head, I don't, no.
Mr. Mica. You said you reject about 55 percent of these
applicants off the top and they are turned over to ICE?
Mr. Langlois. Correct.
Mr. Mica. You may not be aware but this is a case where ICE
officers are suing the Administration because the
Administration ordered a directive exercising prosecutorial
discretion and deferred action against aliens. Are you aware of
this pending case? You are sending these folks over here for
action. The ICE agents are saying that the Administration's
working contrary to the statutes and laws that exist in the
removal process.
Mr. Langlois. I have read newspaper accounts.
Mr. Mica. Have any of the ICE folks talked to you about
this?
Mr. Langlois. No, they have not. By regulation, we do not
exercise discretion in the issuance of the charging document.
Mr. Mica. You are aware that you are turning them over and
then there are problems with the final resolution of disposal
or return, right?
Mr. Langlois. Our regulation demands that we issue that.
Mr. Mica. Finally, we went round and round on the issue of
sequestration. We were told the end of the world was coming in
certain activities under DHS by the departing, I will not make
any comments about her or my opinion on her departure, but the
Secretary told us there was doom and gloom.
Can you tell us how sequestration affected you and what
directives you had from above as to how to proceed?
Mr. Langlois. USCIS is fee-funded for the vast majority of
our work. I am not a budget expert but we were funded at the
levels that were requested and approved in fiscal year 2013.
There was no change. There were restrictions on travel budgets
but that was not due to sequestration. That was mainly due to
making sure that we get the most for our money.
Mr. Mica. I know I am a little bit over but there were some
reports that certain folks were going to be released because of
sequestration and all of that. Are you aware of anything that
took place with that matter?
Mr. Langlois. Not in USCIS.
Mr. Chaffetz. Thank you.
I will now recognize the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Have you been able to think of any other categories where a
false representation could be considered immaterial?
Mr. Langlois. No, I have not but I would certainly be
willing to follow up. There are numerous court cases we could
cite that would outline the approach our officers are
instructed to take.
Mr. Gowdy. Do these court cases draw a distinction between
false representations as a part of the greater application or
specifically with respect to the credibility of the person
doing the assertions?
Mr. Langlois. Again, I really did not prepare in-depth for
this sort of analysis, but I would be more than happy to follow
up with an explanation and the court cases in order to
illustrate the instances that our officers are instructed on
what you can consider in a credibility determination, what is
allowable and what is within their discretion during the
examination.
Mr. Gowdy. Let us take a broader perspective. You think
there are court cases where courts have held that there are
certain misrepresentations that are immaterial?
Mr. Langlois. That is my understanding.
Mr. Gowdy. Immaterial even with respect to the issue of
credibility?
Mr. Langlois. Immaterial as far as the asylum request is
concerned.
Mr. Gowdy. Do you agree there is a difference between a
false representation seeking asylum and simply a mere failure
to prove your case?
Mr. Langlois. The burden of proof is on the applicant.
Mr. Gowdy. What is that burden, preponderance, clear and
convincing?
Mr. Langlois. Again, I would have to review the lesson
plans on asylum. It has been a while since I have adjudicated
the asylum cases.
Mr. Gowdy. The burden is on the person seeking asylum. It
is either preponderance, which is just slightly more likely
than not or clear and convincing. It certainly is not beyond
reasonable doubt?
Mr. Langlois. It is not clear and convincing. I do believe
it is preponderance.
Mr. Gowdy. For the audience, picture that set of scales and
just having a feather on one side, so it is slightly greater
than the other. You would agree, I am sure, there is a
difference between just overtly making false representations
and simply having a failure of proof?
Mr. Langlois. Right.
Mr. Gowdy. You could be right. You just do not have enough
proof to prove it. You would agree there is a difference?
Mr. Langlois. Yes.
Mr. Gowdy. What are the consequences for making an overtly
false application as opposed to someone who just cannot prove
it?
Mr. Langlois. Both individuals are placed into removal
proceedings if they do not establish their eligibility.
Mr. Gowdy. There is no disincentive. If you are going to
tell a story, tell it as big and wild as you can, right,
because there is no disincentive. If you are treating people
who make false representations exactly the same as you do
people who merely have a failure of proof, what is the
disincentive to go all out?
Mr. Langlois. The ICE trial attorney as well as ICE and the
FBI may choose to prosecute an individual for fraud.
Mr. Gowdy. How many of those prosecutions are you familiar
with?
Mr. Langlois. As I mentioned, we would certainly be willing
to give the committee, working with the Office of Legislative
Affairs, the listing of all of the successful prosecutions that
we have engaged in with U.S. attorneys.
Mr. Gowdy. Are you aware of any?
Mr. Langlois. Yes, the case most recently in New York that
netted about ten attorneys.
Mr. Gowdy. Would that be the affirmative use of asylum or
the defensive use of asylum?
Mr. Langlois. It is both.
Mr. Gowdy. To that point, have you noticed an increase in
applicants using asylum once they have secured competent legal
counsel?
Mr. Langlois. Individuals have the right to counsel at no
expense to the government.
Mr. Gowdy. I am actually well aware of that. My question
was a little narrower. Are you aware of any increase in the
application for asylum once that court-appointed or free
counsel is made available to them?
Mr. Langlois. Free counsel is not made available to
individuals.
Mr. Gowdy. Can you eventually get around to answering my
question? My question is simple. When lawyers get involved, do
you see the number of asylum applications go up, whether the
lawyers are free or paid for?
Mr. Langlois. We receive applications and they either have
a lawyer or they do not have a lawyer when we receive them.
Mr. Gowdy. Have you evaluated whether you are more likely
to get an asylum application if an attorney is involved?
Mr. Langlois. I have not evaluated that.
Mr. Gowdy. Can you do that for me?
Mr. Langlois. I do not know who is not applying. The only
analysis I can do is individuals who submit an asylum
application, I can run statistics on how many are represented
and how many are not represented. I could also look at that
over time.
Mr. Gowdy. Is that affirmative or defensive?
Mr. Langlois. Affirmative.
Mr. Gowdy. I am talking about defensive.
Mr. Langlois. That statistic is maintained by ICE and the
immigration courts.
Mr. Gowdy. You would not have access to it?
Mr. Langlois. I could get access to that and facilitate it
but they are not the statistics that I own or that the program
I manage owns.
Mr. Gowdy. I would be very interested in any court cases
where courts have held that misrepresentations are immaterial
on the issue of credibility. If you could forward those to me,
I would be very appreciative.
I yield back to the chairman.
Mr. Chaffetz. Thank you.
I will now recognize the gentlewoman from Illinois, Ms.
Kelly, for five minutes.
Ms. Kelly. Thank you, Mr. Chairman. Good morning.
The Refugee Asylum and International Operations Directorate
website states, ``We protect national security, combat fraud
and prevent ineligible individuals from immigrating to the U.S.
through careful screening, vigilant reviews and sound
adjudications.'' The Oversight Committee is particularly
concerned with issues of waste, fraud and abuse. Does the
asylum process threaten U.S. efforts to secure the border?
Mr. Langlois. The asylum actually enables the institution
of the expedited removal. Individuals in expedited removal,
after 1996 when the law was instituted, do not get access to
the immigration court system. It is an extremely efficient and
effective border control mechanism.
In order to have this, however, considerations for
individuals that fear persecution must be segregated out from
the immediate removal of the individual. America should not
return individuals to be persecuted because of their religious
beliefs, for example.
You have a very effective mechanism to quickly turn around
and send back to the country of origin individuals who are
trying to enter the Country illegally. The expedite rule has a
credible fear component that takes the individuals that express
a fear and makes sure they have a significant possibility of
being successful. Only those individuals get their day in
court.
We remove efficiently approximately about 225,000
individuals and only 25,000 or 26,000 move on to an immigration
judge. Prior to 1996, it would have been that entire group that
would have moved to an immigration judge. We believe that we
support securing our borders by enabling expedited removal to
be in existence.
Ms. Kelly. It does appear that the U.S. asylum process has
done well in promoting U.S. humanitarian values in protecting
the persecuted while preventing fraud and abuse and is
addressing national security concerns. Can you speak briefly
about the training the asylum officers receive?
Mr. Langlois. Certainly. As I mentioned previously, I think
a well trained asylum officer, a well equipped asylum officer
is our best defense against fraud, abuse and securing national
security. We have an approximately eight week asylum training
course that goes over national security concerns, credibility
determinations, interview techniques, screening procedures, and
efficient and effective use of country conditions to verify
claims or find claims that are not credible.
In addition to that, we have training of four hours a week
that is mandated in each asylum office to review common trends
of cases and review fraud patterns. We have two FDNS officers
in each office who conduct that training to highlight the
efforts we are taking against fraud.
I will mention, not to toot my own horn, the Asylum
Division's training is considered to be very good because other
countries have sent their asylum officers to attend our
training. The State of Israel sent people, South Africa sent
people, and Denmark sent people, and also Mexico, Canada and
also the Bahamas. UNACR has cooperated with them to have them
come to our training because they do consider it to be a model,
I would venture to say.
Ms. Kelly. Thank you so much.
I yield back the rest of my time.
Mr. Chaffetz. Thank you.
I would recognize myself.
In June 2011, I believe you were the recipient of an
independent analysis that was done with recommendations. This
was in response to the GAO which highlighted the deficiencies
that you had in training and detecting fraud. You are familiar
with this report?
Mr. Langlois. Yes.
Mr. Chaffetz. Is that something you can provide to the
committee?
Mr. Langlois. The GAO report?
Mr. Chaffetz. No, not the GAO report. You contracted a
study to determine the productivity standards. This study was
completed in June 2011.
Mr. Langlois. Research Triangle, I believe the report is.
Mr. Chaffetz. Can you provide that to this committee?
Mr. Langlois. I will certainly check with the Office of
Legislative Affairs in order to ascertain if we can provide
that, yes.
Mr. Chaffetz. They work for you, right?
Mr. Langlois. No, they do not. They work with my
organization.
Mr. Chaffetz. Who do you have to check with?
Mr. Langlois. The Office of Legislative Affairs.
Mr. Chaffetz. The Secretary's office, is that what you are
saying?
Mr. Langlois. No. I have to work with them to get you that
report.
Mr. Chaffetz. But you will give us that report?
Mr. Langlois. I believe that we can, yes.
Mr. Chaffetz. What is a reasonable time to give us this
report? We paid for it. We paid for this report. Why would you
not provide it to us?
Mr. Langlois. That I do not know.
Mr. Chaffetz. So you will provide it to this committee?
Mr. Langlois. I cannot commit what I do not know that I can
do.
Mr. Chaffetz. Why can't you commit, you have it? I paid for
it, so why can't we get it? I am looking for a yes. When you
have something that is paid for, that has been appropriated by
the United States Congress, it is a report and should be
provided to this Congress. We are asking for it. We need you to
provide it to us. Understood?
Mr. Langlois. Yes, understood.
Mr. Chaffetz. Did you implement the recommendations of that
report?
Mr. Langlois. No, we did not.
Mr. Chaffetz. Why not?
Mr. Langlois. We implemented five out of the GAO report.
Mr. Chaffetz. No, not the GAO report, the report they were
given. Why did you not implement this?
Mr. Langlois. We found fault in their analysis, basically.
Mr. Chaffetz. That is why you don't want to give it to us?
Mr. Langlois. I don't know. Did we refuse the report to you
in the past?
Mr. Chaffetz. I don't know that we have even had a hearing
on this in the past. I have only been in Congress five years.
This is the first time I am asking you. You are telling me a
definite maybe which is not good enough. That is why we will
continue to dwell on this for a moment.
Why did you not implement the recommendations?
Mr. Langlois. We disagreed.
Mr. Chaffetz. Why did you do the report if you disagreed?
Mr. Langlois. Because GAO wanted us to examine if our model
of assigning nine cases a week to asylum officers was a
reasonable number to be given to them. We had been assigning
nine cases for about a decade. We have a performance appraisal
system that looks at their quality.
Mr. Chaffetz. What was the recommendation?
Mr. Langlois. Their recommendation was that we should
assign cases at a lower rate.
Mr. Chaffetz. You just disagreed with that, so you didn't
implement it?
Mr. Langlois. Correct.
Mr. Chaffetz. That is something we want to look at.
Mr. Langlois. Okay.
Mr. Chaffetz. The Customs and Border Patrol, I want to make
sure I understand this right. Somebody applies for asylum, they
are granted asylum, then they go back to the country where they
said they were going to be persecuted or where they feared for
their life, then you say there is nothing in the system to
highlight that until they come back into the Country.
When they CBP officer is sitting there at the airport and
they are coming back from pick your country, does it actually
show up on their screen that this person has been granted
asylum from the country they visited?
Mr. Langlois. I believe their systems would indicate that
the individual was granted asylum, yes.
Mr. Chaffetz. But would it tell them which country they
were granted asylum from?
Mr. Langlois. That, I do not know. That would be in the CBP
system and inspections.
Mr. Chaffetz. I guess I am concerned that there is no
flashing red light that goes off on someone's desk that says
this is a potential problem. That may very well be the case
that happened in Boston and who knows what else.
Let me ask you this. On page six of your testimony, the
middle paragraph, the last sentence says ``Finally, the Asylum
Division is also piloting the screening of asylum information
against the National Counterterrorism Center's terrorism
holdings.''
Mr. Langlois. Correct.
Mr. Chaffetz. You are piloting, so you have this
comprehensive review but explain that to me. It scares me.
Mr. Langlois. We are very forward leaning and pioneering in
our security checks.
Mr. Chaffetz. You proved that to me. That is very self-
serving and very subjective. You got done touting how great
your training is. GAO disagrees with you. You get an
independent study and they disagree with you. You ignore their
findings. Now we are piloting something to check against the
National Counterterrorism Center. I believe that you believe it
but explain to us why it is true.
Mr. Langlois. We instituted a check with the Department of
Defense. We added a Department of Defense check against their
fingerprint holdings a few years ago. That was evidence, I
think, of pioneering and reaching out to various non-
traditional security screening. We reached out and now have
access to ABIS, their fingerprint database in the Department of
Defense.
We also made sure that we had implemented a system to check
the fingerprints against those fingerprints that were submitted
by them to make sure that it was the same person. We were
forced to do that. USCIS, in its entirety, is now doing that.
We reached out to the National Counterterrorism Center in
order to take our biographic data and run it through their
system to see if they have any information about these
individuals. The reason we call it a pilot is because we are
working out the computer in order to have it as a systematic
exchange and be required.
Mr. Chaffetz. When you submit the fingerprints to the FBI,
are you telling me that the FBI does not run this information
against the National Counterterrorism Center? You have to do
that independently?
Mr. Langlois. We are making sure that we get all of the
information. The other aspect of this is that it is piloting
because we are seeing if they are a duplication. We are being
very careful in our resources but we are reaching out to as
many partners as we can to get information.
We have also reached out to the Canadian government, the
Australian government, the British and New Zealand in order to
exchange fingerprints of asylum seekers with them to see if
they have any information that could be useful. We plan on
having 100 percent of our people checked against Canada
probably within the next year or two.
Mr. Chaffetz. How many people from Canada claim asylum?
Mr. Langlois. Individuals that are Canadian citizens, I
don't think claim asylum in the United States. It is
individuals from other countries that may be trying to game the
system by claiming asylum in both countries.
Mr. Chaffetz. When you give out bonuses, when you do
performance evaluations, what percentage of that evaluation is
done based on their ability to root out the fraud?
Mr. Langlois. That would be contained in the assessment of
the individual's quality adjudications. Fraud is a quality
element. It is part and parcel of the rating.
Mr. Chaffetz. The 400 percent surge in the last five years
that we talked about, to what do you attribute that? Your
officers are seeing these cases. Why is there such a massive
increase?
Mr. Langlois. I don't have a very good answer to that
question.
Mr. Chaffetz. Do you have a sense?
Mr. Langlois. It could be due to increased violence in
these countries. There are a lot of reports, including the
Department of State report, I think would indicate an increase
in violence. Newspaper accounts and, traditionally, Human
Rights reporting on it. We believe that is there but there is a
wide variety of factors that could be involved in this.
Mr. Chaffetz. Let me now recognize the gentleman from
Michigan, Mr. Bentivolio.
Mr. Bentivolio. I want to talk about the bonuses. Do you
have the prerequisites for a bonus? I heard you say there are a
lot of factors that determine how someone gets a bonus. Did I
understand that correctly?
Mr. Langlois. Yes, it is the performance rating of an
individual.
Mr. Bentivolio. Where do we get those performance ratings
Mr. Langlois. What was that?
Mr. Bentivolio. Where do I get a copy of those performance
ratings? It seems like every government agency has a bonus
program. I have asked two or three different agencies for those
prerequisites and I haven't gotten one yet.
Mr. Langlois. I do believe that we could give you our
performance appraisal.
Mr. Bentivolio. Can I have that in five days or two weeks?
Mr. Langlois. I would have to work with the Office of
Legislative Affairs but it seems a reasonable amount of time.
Mr. Bentivolio. What is the average bonus?
Mr. Langlois. It varies from year to year. Most of the
time, there is a cap on the bonuses as far as the overall
salary amount, so it is one or two percent of the overall
salaries that are out there. I would have to go back and check
on a year to year basis, but I don't think it exceeds $5,000,
is my last recollection but I could be wrong on that.
Mr. Bentivolio. I am going to have to go back to my
district and explain why we have the poorest border, we have
people claiming asylum that get to live in our Country and
work, take jobs from Americans for about seven years, and the
people that let them do it get bonuses for doing it. How is
that going to set with my constituents? They work hard and try
to get a bonus too but they are taxed more and more.
People are saying we have to spend more money on the
borders. How many Border Patrol employees do we have on the
border?
Mr. Langlois. That figure, I don't know but I heard it is
approximately 20,000.
Mr. Bentivolio. That is what I heard too, 20,000, 300 dogs,
million dollar pieces of high tech equipment. My dog can find
just about anything. You hide it and he will go find it. We
have Border Patrolmen telling me, if I had a dog, I would have
another officer that is in my vehicle to catch these people
that are jumping the border.
I talked to one illegal person who came to this Country
illegally who said, it is easier to go through the southern
border or the northern border, can't forget that one, than it
is to wait seven years to come to America legally. They would
rather take the chance and spend the money to come in illegally
through the southern border than go through the legal process.
Do you know how frustrating this is?
We are spending an awful lot of money for a secure border
and we are not getting it. If I buy a product and it doesn't do
what it is supposed to do, what I get to do? I take it back and
I will never buy that product again.
We are stuck with bureaucrats who aren't doing their job.
We are paying them a lot of money, even giving them bonuses. I
don't know about you but I have a real problem with that and so
do my constituents. I want it fixed and that is exactly what my
constituents are saying.
We are going to figure this out one bit at a time, one
small slice and we are going to fix it. I want your
recommendations as well because my constituents deserve better
from their government.
Thank you very much, Mr. Chairman. I appreciate the
opportunity to speak today.
Mr. Chaffetz. Thank you. I thank Mr. Bentivolio for his
passion and caring on this issue.
Let me wrap up with a few more questions and we will
conclude this hearing. I appreciate your being with us today.
Who participated in the drafting of your testimony?
Mr. Langlois. When I received notice that I was to appear
for the hearing on the 27th on I believe Friday the 14th, I
immediately began work with my staff on my testimony. From
there, I submitted it to the clearance process. I am not an
expert in the clearance process, but it entails going to the
USCIS Office of Chief Counsel, then it goes to the DHS Office
of General Counsel and after that, it goes to the department
level for review.
I believe after that it goes to other agencies to take a
look at it, but I would have to get back with the executive
secretariat to outline what the clearance process is. This is
the second time I am testifying so I am not very familiar with
the clearance process.
Mr. Chaffetz. I do appreciate this.
Is there anything else you want us to be aware of that
maybe we did not ask you? We don't know what we don't know. We
have spent some time diving into some areas but what other
areas do you think are appropriate that the Congress should be
looking at?
Mr. Langlois. In my view, when Congress considers
strengthening and securing the border, in the legislation keep
in mind that we do have obligations not to return individuals
that will be persecuted based on their religion, their
political beliefs, and so forth and that a mechanism,
regardless of what the legislation is on securing the border,
that the legislation permit us to honor our longstanding
tradition of being a country that provides sanctuary to
individuals that have a well founded fear of persecution or
that have been persecuted in the past.
I think it is a proud tradition and we should, of course,
as Congress did in 1996, they had the wisdom to enact some
stringent border controls but allow for these individuals to
seek protection in the United States. That would be my
strongest recommendation.
Of course in that there is a great responsibility that
falls on whoever is implementing that, to make sure we protect
against fraud, that we guard against fraud, that our
productivity is reasonable, that is a tough balance, and that
we ensure national security. That would be my recommendation.
Mr. Chaffetz. You mentioned other countries have come and
looked at how we did things. Have you gone and looked at how
other countries do anything?
Mr. Langlois. Yes. We have a number of forums in which we
participate that basically share best practices, procedures and
gain different insight into law. We have also sent individuals
to assist in the stand-up of the Israeli asylum system. The
UNACR was always interviewing the cases. The government wanted
to take it over and we sent people to assist them. We took a
look at their system and in that way, gained a lot of
knowledge.
Mr. Chaffetz. Is there any country in particular you would
highlight as someone who does it particularly well?
Mr. Langlois. I think it would be fair to say that this is
a very difficult endeavor. I think the European countries we
have looked at, I think the government of Israel at this point
we have learned quite a bit, Australia, Canada, yes, we have
cooperated and have learned quite a bit from all of those
countries.
Mr. Chaffetz. You would say those countries do it fairly
well?
Mr. Langlois. Yes.
Mr. Chaffetz. I want to be clear, as we conclude, that we
appreciate what the men and women on the front line are doing.
They have a very difficult job. They are given huge numbers
that are thrown their way, a great deal of expectations to
churn through cases.
My personal feeling is that there needs to be a mechanism
for both their productivity evaluation, their bonuses, the
other types of evaluation for rooting out and finding fraud,
not only in an individual case but trends; that we give them
the adequate time they need in order to root out that, not just
feel the pressure that we need to meet the 60 day threshold.
When we have a 400 percent increase in this category and we
did not have a 400 percent increase in the number of personnel,
rather than feeling the pressure of the time to get through the
60 days, it is better to get it right. We owe that to the
American people who are our citizens and are paying their
taxes.
I do hope there is a way and a mechanism that you
personally, as well as the agency as a whole, will stress and
will thank and reward on a regular basis those people who are
finding the problems within the system because they are out
there. People desperately want to skirt the system.
As Mr. Bentivolio pointed out, it is cheaper, faster and
less of a risk to come here illegally, make a fraudulent claim
than it is to go through the legal process. I think there is a
higher moral obligation to the people who are not willing to do
that, the people who want to come here legally and lawfully and
do get in line. I feel we are failing them and are rewarding
the people with free health care, free education, get a worker
card, get in the line, get in the middle of the bureaucracy,
the bureaucracy will take care of you here in America. That is
just not right. It needs fixing.
There are a lot of good things going on, there are a lot of
good men and women who are patriotic and are working hard. I
know federal employees are on the brunt of a lot of criticism
but, by and large, my experience is the overwhelming majority
do the right thing and they do it for the right reasons. They
are under-appreciated and I want them to know that the Congress
cares about what they are doing and how we do it.
We can always improve. When you are there, you have a
unique opportunity to make those improvements. We would
encourage you to do so.
I thank you for your testimony here and I thank you for
your service to our Country. You have been involved in this for
a very long time.
With that, we will now adjourn. Thank you.
[Whereupon, at 11:50 a.m., the subcommittee was adjourned.]