[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE ADMINISTRATION'S DECISION
TO DEPORT CRITICALLY ILL.
CHILDREN AND THEIR FAMILIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND CIVIL LIBERTIES
OF THE
COMMITTEE ON OVERSIGHT
AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 30, 2019
__________
Serial No. 116-70
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: http://www.govinfo.gov
http://www.oversight.house.gov or
http://www.docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-307 PDF WASHINGTON : 2020
--------------------------------------------------------------------------------------
COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Acting Chairwoman
Eleanor Holmes Norton, District of Jim Jordan, Ohio, Ranking Minority
Columbia Member
Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts Virginia Foxx, North Carolina
Jim Cooper, Tennessee Thomas Massie, Kentucky
Gerald E. Connolly, Virginia Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California James Comer, Kentucky
Katie Hill, California Michael Cloud, Texas
Debbie Wasserman Schultz, Florida Bob Gibbs, Ohio
John P. Sarbanes, Maryland Ralph Norman, South Carolina
Peter Welch, Vermont Clay Higgins, Louisiana
Jackie Speier, California Chip Roy, Texas
Robin L. Kelly, Illinois Carol D. Miller, West Virginia
Mark DeSaulnier, California Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands W. Gregory Steube, Florida
Ro Khanna, California Fred Keller, Pennsylvania
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
David Rapallo, Staff Director
Candyce Phoenix, Chief Counsel
Amy Stratton, Clerk
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
------
Subcommittee on Civil Rights and Civil Liberties
Jamie Raskin, Maryland, Chairman
Wm. Lacy Clay, Missouri Chip Roy, Texas, Ranking Minority
Debbie Wasserman Schultz, Florida Member
Robin L. Kelly, Illinois Thomas Massie, Kentucky
Jimmy Gomez, California Mark Meadows, North Carolina
Alexandria Ocasio-Cortez, New York Jody Hice, Georgia
Ayanna Pressley, Massachusetts Michael Cloud, Texas
Eleanor Holmes Norton, District of Carol D. Miller, West Virginia
Columbia Frank Keller, Pennsylvania
C O N T E N T S
----------
Page
Hearing held on October 30, 2019................................. 1
Witnesses
Mr. Ken Cuccinelli, Acting Director, U.S. Citizenship and
Immigration Services, U.S. Department of Homeland Security
Oral Statement................................................... 8
Mr. Matthew Albence, Acting Director, U.S. Immigration and
Customs Enforcement, U.S. Department of Homeland Security
Oral Statement................................................... 10
Written opening statements and statements for the witnesses are
available on the U.S. House of Representatives Document
Repository at: https://docs.house.gov.
Index of Documents
----------
Documents listed below are available at: https://docs.house.gov.
* Statement, Lawyers Community for Civil Rights in Boston;
submitted by Rep. Pressley.
* Statement, American Immigrant Lawyers Association; submitted
by Rep. Pressley.
* Letter, Interfaith Immigration Coalition; submitted by Rep.
Raskin.
* Letter, New York Legal Assistance Group; submitted by Rep.
Raskin.
* Letter, Boundless Processing Delays.
* Letter, Boundless Cover Letter regarding Cuccinelli.
THE ADMINISTRATION'S DECISION
TO DEPORT CRITICALLY ILL
CHILDREN AND THEIR FAMILIES
----------
Wednesday, October 30, 2019
House of Representatives
Subcommittee on Civil Rights and Civil Liberties
Committee on Oversight and Reform
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:06 a.m., in
room 2154, Rayburn Office Building, Hon. Jamie Raskin,
(chairman of the subcommittee) presiding.
Present: Representatives Raskin, Clay, Wasserman Schultz,
Kelly, Gomez, Ocasio-Cortez, Pressley, Norton, DeSaulnier,
Cooper, Maloney, Roy, Massie, Cloud, Miller, Keller, and
Grothman.
Mr. Raskin. Good morning, everyone. Thank you all for
joining us here today. The subcommittee will come to order.
Without objection, the chair is authorized to declare a recess
of the committee at any time.
Today's hearing will examine the administration's decision
to deport children with critical illnesses, a decision that was
recently reversed following public outrage and pressure from
this subcommittee.
I will now recognize myself for five minutes to give an
opening statement and then I will turn to the ranking member.
We are here to get to the bottom of the administration's
mysterious campaign to deport critically ill children and their
families.
It appears that this policy has, thankfully, been reversed
after Congress and the American people rose up in an outcry at
the cold inhumanity on display in this policy.
I am going to treat this hearing as not only in honor of
the memory of our late beloved chairman, Elijah Cummings, but
as a hearing in direct pursuit of a policy objective that was
close to his heart.
The threatened deportation of sick children was such an
outrage to Chairman Cummings that his very last official act
before his death was to issue subpoenas to hold the
administration to account.
On Wednesday, in the waning hours of his life, through all
of his pain and difficulty, Chairman Cummings recognized the
indelible stain that this policy would leave on our Nation and
he made holding the government accountable his final official
act, and we now have a sacred obligation to follow through on
his subpoenas to make sure that we defend some of the most
vulnerable people on the planet--sick children who have come as
strangers to our land to seek medical assistance.
So, to our witnesses today, I want to be clear. This
subcommittee intends to follow through on Chairman Cummings'
promise to unearth the truth behind this policy and his desire
to ensure that the policy is truly reversed and that our
government treats people in this category with the dignity that
they deserve.
Not only do we owe that to our late beloved chairman, but
we owe it to Maria Isabel Bueso, to Jonathan Sanchez, to Serena
Badia and all of the immigrants whose health and whose lives
were threatened by the policy implemented by USCIS.
USCIS must explain, first, what the current policy is on
deferred action. It cannot keep the process shrouded in secrecy
while these kids wait to hear their fate.
If we could go to the slide. On September 18, Acting
Secretary of Homeland Security Kevin McAleenan ordered the
acting director, Mr. Cuccinelli, who is with us here today, to,
quote, ``ensure that effective immediately USCIS resumes its
consideration of non-military deferred action requests on a
discretionary case-by-case basis.'' It is unclear whether USCIS
has actually granted relief to anyone since reversing course.
He further ordered USCIS to, quote, ``ensure that the
procedure for considering and responding to deferred action
requests is consistent throughout USCIS and that discretionary
case-by-case deferred action is granted only based on
compelling facts and circumstances.''
What exactly does this mean? What is the problem that USCIS
is trying to fix? What changes are being considered? Will any
outside stakeholders be consulted?
We want to have maximum transparency to ensure that USCIS
is not imposing unreasonable requirements on immigrants who
deserve our attention and our mercy.
In the meantime, USCIS should explain what will happen to
people whose prior deferrals have expired while their renewals
are still under review.
We have heard from the family of a 12-year-old boy with an
incurable condition that could cause him to bleed to death if
he is not treated correctly.
Both of his parents applied in March to renew their
deferrals but have been waiting for months without any decision
at all. His father's deferral expired in August. His mother's
deferral expires in January.
Without a deferral, neither parent would be authorized to
stay or work in the United States, threatening their ability to
support and care for their sick son.
So, what does USCIS recommend families like his do while
the agency is trying to decide how to reinstate deferred
action? How many more people are stuck in this kind of limbo
and what will we do to protect them?
We want basic answers to these questions and we come here
not in any kind of ``gotcha'' spirit. We just want to deal with
a very serious problem that was brought to our committee.
The ongoing confusion regarding deferred action reflects
the same kind of chaos that apparently produced this policy in
the first place and that prompted our last hearing and for
which the administration I hope today will provide us answers.
What little we have been able to learn about how this
policy came to be indicates that it was undertaken in haste
without any effort to ascertain what its health and life-
threatening effects would be on the people affected.
At our hearing in September, we heard the compelling
stories of people who were directly harmed by the policy.
Isabel Bueso, a 24-year-old woman suffering from a rare
disease, testified that deportation would be, quote, ``a death
sentence for me.''
She told us, ``I want to live. I am a human being with
hopes and dreams in my life.''
Jonathan Sanchez is a 16-year-old suffering from cystic
fibrosis, which is a disease that affects people in my family.
Jonathan Sanchez told us that upon learning he was facing
deportation, he broke down in tears, pleading, quote, ``I do
not want to die. I don't want to die. If I go back to Honduras
now I will die.''
In his words, quote, ``It is incredibly unfair to kick out
sick kids who are in the hospital or at home taking treatments
and who are just trying to have better opportunities to live.''
It is obvious from the testimony that USCIS either did not
realize what the real-world implications of its policy would be
or it knew and decided to go ahead anyway.
Either reality, I think, would be damning. But the effects
on Maria and Jonathan would have been entirely foreseeable if
USCIS had sought public feedback before instituting the new
policy.
According to the USCIS, it failed to consult a single
external stakeholder before jeopardizing these families. Making
matters worse, USCIS did not even issue any public announcement
about the policy or provide any guidance to people in Maria and
Jonathan's situation, or any of the critically ill children and
their families about what would come next and what they should
be done.
Why not? What was the reason for the secrecy and the
surprise? Is it USCIS's practice to implement massive policy
shifts like this without providing public notice?
Sadly, the threatened deportation of sick kids is just one
example of this administration's mistreatment of immigrant
children. It is not the only one.
USCIS in particular has engaged in a pattern of developing
policies that endanger children.
Since, Mr. Cuccinelli, you took office, USCIS has
eliminated automatic citizenship for some children of U.S.
soldiers stationed overseas, introduced new barriers for
immigrant kids fleeing domestic abuse in their home countries,
and rolled out a public charge rule that has scared many
parents into removing their children from the Central Health
and Nutrition Services.
Each of these acts is an affront to the central tenet of
Chairman Cummings' philosophy, that children are the living
messengers that we send forward to a future that we ourselves
will never see.
The last hearing that Chairman Cummings attended was our
September 11 hearing on this issue. Treating children with
dignity was so important to him that he made a point to come
down from Baltimore, despite his advanced failing health.
At that hearing, Elijah said, quote, ``I really do think
that we are in a moral situation. People are striving to live.
They are trying to breathe the air of our country. They are
trying to be better. They are trying to be healthy.''
Chairman Cummings, who himself was striving to live at that
moment, trying to be healthy, wanted these children to have the
same access to medical treatment that he did.
We will honor the chairman's memory and the humanity of all
those seeking deferred action by remaining vigilant, conducting
rigorous oversight, and working to guarantee that this
administration treats immigrants with the dignity they deserve.
I welcome today's witnesses--Mr. Cuccinelli, Mr. Albence.
We are delighted that you came today. But we want to make sure
that we see no further bureaucratic stonewalling and confusion
on these matters.
We want clarity. We are here for answers and we will not
stop until we get them. We thank you for coming and I am now
delighted to recognize the distinguished ranking member of our
committee, Mr. Roy.
Mr. Roy. Thank you, Mr. Chairman.
Thank you, Mr. Cuccinelli, Mr. Albence. Thank you for
coming up here and visiting with us today.
I will reiterate what I said in a hearing last week, that,
obviously, our continued prayers are with the family of
Chairman Cummings and with his staff.
We, obviously, had a great event here in the Capitol last
week and I am honored to participate in that and we will
continue to move forward in this committee carrying forward the
chairman's legacy and wanting to do what is right and to be
better, right.
I do want to say one thing as we head into this, that--and
it will not surprise the chairman that I will raise this issue,
that currently there are two depositions going on and those
depositions are--or, at least, two are scheduled today. One, I
think, is going on now in another part of the Capitol and it is
impossible for me to be in two places at once.
So, I am sitting here as the ranking member of the
subcommittee and I want to carry out my duties to do that, and
I am unable to go hear that and then I am unable to go easily
see transcripts.
I am unable to easily catch up on what I am missing because
we are carrying out the duties of our day. I don't think that
is the right way to carry out things.
I know there is going to, apparently, be a vote tomorrow on
something on this process. But I would just suggest that this
is part of the problem in real time.
So, anybody watching this, this is the problem with this
current broken process.
Here I am sitting. There are very few members here, at
least in our side of the aisle. I would also note that I would
say my prayers and well wishes to Mr. Hice, whose father passed
away yesterday, and so I know he is not able to join us today.
But I don't think this is the way we should be conducting
those kinds of inquiries.
Today, we have a hearing titled, ``The Administration's
Decision to Deport Critically Ill Children and Their
Families.'' I would take issue with that title.
I do not believe that is what the administration was
seeking to do. I think that we are talking about a process
change and that we ought to get to that.
This is a topic that involves deferred action requests for
people not lawfully present seeking to stay for sympathetic
reasons. And this is not the first. We have had the hearing you
mentioned on 9/11.
But to be clear, deferred action is not a program. Deferred
action is a decision, right? It is a decision, and it is a
judgment call reserved for those with prosecutorial powers. We
ought to treat it that way, and then we ought to have a
discussion about policy changes if there are any to be had for
anybody who is here and has overstayed a visa or is sitting
here and is in a situation that the chairman described.
We are just dealing with a policy change that would have
taken USCIS out of a role it has no real underlying authority
to carry out, if I understand it correctly, and it would then
leave prosecutorial decision-making to those who actually have
that power.
At the time of the first hearing, USCIS had already
announced that it would evaluate pending claims subject to an
internal policy change.
USCIS also sent a letter to the committee the day before
the hearing noting that individuals who had sent deferred
action requests to USCIS after August 7 were not under imminent
threat of removal.
It is my understanding that none of the deferred action
individuals had been targeted for deportation, and in a letter
sent to the committee on September 19, the chairman notes, it
is returning to the deferred action process that was in place
on August 6.
So, for better or worse, no one is being treated any
differently than they were on August 6. I think what we have
here is a question about how to have the right policy.
Each and every one of us have sympathy for anyone who is
sick living in uncertainty. But we need real solutions.
No one here, no one in the administration, wants anyone to
not be able to get treatment or be treated unfairly or to live
in uncertainty.
But we have got to deal with the real world where we have
got people here who lose status and then we have got to figure
out what to do with that.
Perpetuating a stay here over your visa and beg for
intermittent two-year deferrals that are not really rooted in
law and seek deferred action from those who don't actually
prosecute and then actually leave them in additional limbo,
that is not a good policy.
Yet, that is the existing policy. If Congress wants a
different visa class or otherwise to solve the problem, it
should act. This is something I beat the drum on many issues.
Congress wants to solve problems, Congress should act.
Congress has the power to make policies. This isn't about
``gotcha'' politics. We should all seek a system rooted in
sound policy.
I would remind my Democratic colleagues that this reality
was at the root of the SCOTUS decision regarding the so-called
DAPA class and in the current debate on the DACA class.
With respect to approving status for people who overstay
their existing visas, we have deferred action which, by
definition, is prosecutorial discretion. That is what we are
talking about here.
We can't defer--we can't give a status to a group of people
in the name of prosecutorial discretion.
For perspective, this hearing involves a situation that
affects, roughly, 900 current people and the policy is
currently at the status quo ante.
But let us think about what is actually happening right
now. Border Patrol agents along the southern border encountered
a million people trying to illegally enter the country this
year. A million.
Today we are talking about 900 and it is very important for
each of those 900. But that number--the specific number is
977,509. OK. Plus inadmissibles, there were 1.148 million
enforcement actions by CBP.
So, just putting in perspective the numbers, we are talking
about 900 versus 851,000 that we are talking about here in
apprehensions.
We are not talking in this hearing about the 224 pounds of
fentanyl seized crossing our southern border this last fiscal
year, and one little sugar packet of fentanyl would kill
everybody in this room and we have got 224 pounds of it that
come across our border.
We are not having a hearing about the 1,700 inbound weapons
CBP intercepted this year, up 300 percent from last year.
We are not talking about the fact that CBP apprehended
1,200 gang members from 20 different gangs. There are, roughly,
576,000 immigrant fugitives in the United States today--
576,000.
Over half a million people who have been given a final
order of removal by a judge and they are still wandering around
the United States.
According to ICE, they have seen a double digit drop in
criminal arrests this year due to the volume of personnel and
resources they have had to deploy to the border.
This is where we have interior enforcement and we have real
problems. Our border is porous and vulnerable to crimes by
cartels and traffickers who are taking advantage of migrants.
Traffickers abuse children as props for asylum. There were
473,000 family units this year. This is the highest on record.
We could discuss the 5,400 recorded cases of fraud from
alleged family units and the children who are being exploited
as a golden ticket to come to the United States.
Let us talk about those migrants getting abused today on
the journey through Mexico. We had 50,000 apprehensions in
September--50,000.
We are talking about the numbers being down. Why? Because
they were down from over 100,000 in May.
Yet, that is the reality of what is happening on our border
right now today. But we are not having hearings on that.
We are having a hearing on something that has no
discernible difference from where it was on August 6. I
understand the concern of the chairman about some of the
questions about the policies.
But we are talking about something that has been largely
addressed with respect to the concern that the majority has,
and if we want to have a conversation about the policy, let us
sit around a round table and figure out what we can do to have
legislation that might address some of those concerns.
Let us talk about the other things we could do--fixing
asylum, catch and release Flores, TBPRA. All these are things
that we could fix on one piece of paper in one day if we had
the will to do it.
We could fund ICE and Border Patrol properly. We could fund
ICE at the level that President Obama asked for, upwards of a
billion dollars that he asked for to deal with the
unaccompanied alien children that were coming in 2014 to 2015.
Yet, we only got $200 billion for ICE in June after
demanding to get a supplemental vote and that $200 billion was
constrained and not able to be used.
This hearing today is about an issue that affects 900
people for whom we have great sympathy and we ought to address
the issue.
But on an average day this year, that is three times less
than the total number of crossing during one Border Patrol
shift. Think about that. One Border Patrol shift.
Today, CBP apprehends, roughly, 1,400 migrants a day. On an
average day in May that number was 5,000.
If the chairman wants to address the facts that these
deferrals are not actual programs and are prosecutorial
discretion, let us discuss that and figure out a system that
will work and that we can work together to try to figure that
out.
But I would love to do that in the context of our very,
very broken immigration system and border security.
Thank you, Mr. Chairman.
Mr. Raskin. Mr. Roy, thank you for your very thoughtful
remarks and, as always, I am very eager to work with you and
all of our colleagues on comprehensive immigration reform.
But you correctly delineate what the object of today's
hearing is, which is to focus on this question and we are going
to do it and I think--I am very hopeful we will get the answers
that we need and we can move on to work on other stuff.
There are several members of the committee who have come
today both out of their interest in the subject but also in a
tribute to Chairman Cummings.
So, without objection, I would waive them on. Mr. Rouda and
Mr. Cooper and Mr. DeSaulnier are members of the broader
committee who are joining those of us on the subcommittee,
including Ms. Kelly and Mr. Gomez, who have arrived over here.
Also thank you, Mr. Roy, for telling us about Mr. Hice's
father. I was not aware of that. Our prayers and our thoughts
go out to him. It seems like we are just going to too many
funerals these days. But we are sending him the strength and
encouragement.
All right. With that, I want to formally welcome our
witnesses today: Ken Cuccinelli, who is the acting director of
the U.S. Citizenship and Immigration Services at Homeland
Security--welcome, Mr. Cuccinelli--and Matthew Albence, who is
the acting director of the U.S. Immigration and Customs
Enforcement, ICE, at the U.S. Department of Homeland Security.
If the witnesses would kindly rise and raise their right
hands, I will being by swearing you in.
[Witnesses were sworn.]
Mr. Raskin. Then let the record show the witnesses have
answered in the affirmative.
Thank you. You may be seated. Please speak directly into
the microphones. Without objection, any written statements you
brought with you or that you decide to provide will be made
part of our record.
With that, Mr. Cuccinelli, you are now recognized to give
an oral presentation of your testimony.
STATEMENT OF KEN CUCCINELLI, ACTING DIRECTOR, U.S. CITIZENSHIP
AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Cuccinelli. Good morning, Chairman Raskin, Ranking
Member Roy, and distinguished members of the subcommittee.
First, I want to express my condolences on the passing of
Chairman Cummings and I appreciate his dedication to
representing the people of Maryland's 7th District for 23
years.
My name is Ken Cuccinelli. I am the acting director of the
United States Citizenship and Immigration Services. USCIS
administers the Nation's lawful immigration system.
The agency's mission is to safeguard the integrity and
promise of that system by efficiently and fairly adjudicating
requests for immigration benefits while protecting Americans,
securing the homeland, and honoring our values.
I can see--I can tell you that I am extremely proud of the
work and professionalism I see every day by the employees at
USCIS in service to America.
In Fiscal Year 2019 just ended, USCIS achieved many of
President Trump's goals to make our immigration system work
better for America.
As an agency, we have tirelessly worked hand in hand with
our fellow DHS components to answer President Trump's call to
address the ongoing crisis at our southern border.
We have taken significant steps to mitigate the loopholes
in our asylum system, particularly in the absence of
congressional action, combating fraudulent and frivolous
claims, and strengthening the protections we have in place to
preserve humanitarian assistance for those truly eligible for
it.
The workload USCIS faces each year is staggering. In Fiscal
Year 2019, we adjudicated nearly 7 million requests for
immigration benefits, a 14 percent increase over the previous
fiscal year, and that is with only a two percent increase in
fee income, demonstrating improved cost effectiveness even as
we face many challenges.
This workload represents the full spectrum of immigration
benefits that our law provide to those seeking to come to the
United States temporarily or permanently, and those who seek to
become citizens of this Nation.
Last year, USCIS naturalized 833,000 new U.S. citizens, the
most in more than a decade.
Deferred action is the exercise of discretion to defer
removal action on a case-by-case basis against an alien for a
certain period of time. Deferred action is not an immigration
benefit or specific form of relief. It does not provide lawful
immigration status and does not excuse any past or future
periods of unlawful presence.
Importantly, deferred action can be terminated at any time
at the agency's discretion. Historically, USCIS does not
receive many nonmilitary non-DACA deferred action requests.
For the past few years, USCIS has received approximately a
thousand such requests annually. Some of these requests are for
family support or medical issues.
This has frequently been incorrectly reported or
mischaracterized by the media and some in Congress as a medical
deferred action program.
To be clear, DHS does not and has never administered a
medical deferred action program. Only Congress can provide
permanent immigration relief to an entire class of aliens.
Deferred action is a practice in which the secretary
exercises enforcement discretion to notify an alien of the
agency's decision to forebear from seeking the alien's removal
for a designated period of time.
However, USCIS does not enforce orders of removal. Thus, to
better align USCIS with its mission of administering our
Nation's lawful immigration system, on August 7, USCIS
determined that its field offices would no longer accept non-
military requests for deferred action.
This redirection of agency resources did not affect DACA,
which remains in effect according to the nationwide injunction
while cases go through the court system.
It also did not affect other deferred action requests
processed at USCIS service centers under statute or other
policies, regulations, or court orders.
On September 2, USCIS announced that the agency would
reopen previously pending non-military deferred action
requests.
Further, on September 18, Acting Secretary McAleenan
directed USCIS to resume consideration of non-military deferred
action requests on a discretionary case-by-case basis except as
otherwise required by an applicable statute, regulation, or
court order.
The acting secretary further directed USCIS to ensure that
the procedure for considering and responding to deferred action
requests is consistent throughout USCIS and that discretionary
case-by-case deferred action is granted only based on
compelling facts and circumstances.
All cases that were denied around August 7, 2019, have now
been reopened and are being considered pursuant to the acting
secretary's September 18 directive.
And that concludes my statement. Thank you.
Mr. Raskin. Thank you very much.
Mr. Albence, you are recognized for five minutes.
STATEMENT OF MATTHEW ALBENCE, ACTING DIRECTOR, U.S. IMMIGRATION
AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Albence. Good morning, Chairman Raskin, Ranking Member
Roy, and distinguished members of the subcommittee.
I also want to express my condolences on the passing of
Chairman Cummings.
As you know, on September 11, 2019, ICE testified on this
matter before this committee. At the time of that hearing, the
ICE witness, the Acting Executive Associate Director for
Enforcement and Removal Operations, Tim Robbins, stated that he
was not aware of anyone at ICE being involved in the decision
to end the program.
He further explained that ICE lacks any program or
mechanics to consider affirmative deferred action requests, but
described a variety of ways that ICE does utilize its
discretion as appropriate on a case-by-case basis throughout
the immigration enforcement process.
Contrary to claims made by this committee and the media
about the willingness to answer questions during that hearing,
the only questions our witness declined to answer regarding--
regarded--possible future actions being considered by the
acting secretary of Homeland Security and questions relating to
internal USCIS issues of which he had no knowledge.
And as the committee is aware, within a few days of the
hearing, Acting Secretary McAleenan directed USCIS to resume
consideration of nonmilitary deferred action requests on a
discretionary case-by-case basis.
In addition to our previous testimony, ICE provided several
responses to several follow-up questions from that hearing to
the committee in a letter on September 24, 2019.
In another letter dated October 15, 2019, DHS further
clarified that ICE had no part in USCIS's previous decision.
So, even though ICE's discretionary abilities are not at issue
here today and as USCIS has resumed consideration of these
requests--a process in which ICE is not involved--I am here
today and prepared to answer questions you may have regarding
ICE's role or, more specifically, lack thereof in this matter.
However, I want to clearly state that I believe this
continued repetition of inaccurate information does a
tremendous disservice to the dedicated professional men and
women of ICE, and just as importantly, does a disservice to the
American public, who deserve transparency and facts regarding
the operation of their government.
In a day and age when individuals are committing violent
acts on ICE offices and making threats against ICE officers,
agents, employees, and their families, to continue to suggest
that ICE had some role in this process is not only inaccurate,
as confirmed by the information already provided to this
committee, but also irresponsible.
So, I am here today to defend the men and women of ICE and
to, once again, set the record straight.
I look forward to your questions.
Mr. Raskin. Thank you much for your testimony, both of you,
and at this point, having permitted the several members to join
the subcommittee on the dais who wanted to be with us today--
Messrs. Rouda, Cooper, and DeSaulnier--we will move to the
five-minute questioning portion and I will recognize myself for
five minutes first.
Mr. Cuccinelli, threatening to deport sick kids was an
appalling thing and it was public revulsion at this prospect
which assembled us in our first hearing on it, and we were very
glad that the administration reversed course and decided not to
pursue that policy.
But I want to ask you, what exactly is the policy in place
for processing these requests now? I understand this compelling
facts and circumstances standard that has been enunciated.
Do we--are you considering being in the country for
purposes of receiving necessary medical treatment to be a
compelling fact and circumstance?
Mr. Cuccinelli. Mr. Chairman, the acting secretary returned
us, essentially, to the process we were in before August 7 and
I would note that there is no program. That is part of the
challenge here.
This is about withholding action, not undertaking a formal
process. It is about withholding action, in fact, and the--you
saw what the acting secretary wrote with respect to his phrase
compelling facts and circumstances. That is the only what I
would call substantive commentary that has been distributed to
our work force in terms of reopening these cases and how to
process them. Otherwise, everything has continued as it was
before.
Mr. Raskin. OK. So, as I understand it, there were at least
424 families whose deferred action requests were pending on
August 7. They were denied.
That is when they were told to--that if they didn't leave
the country they should report for possible deportation. But
then they were automatically reopened after the reversal of the
policy.
Can you tell me how many of those requests of those 424
families have been approved at this point?
Mr. Cuccinelli. I can't relate to the specific 424 and
those were ones given notice around August 7. There were over
700 cases pending at that time.
But we have completed as of earlier this week and since the
reopening 41 cases was the last number I heard at the beginning
of the week. But I have no----
Mr. Raskin. Forty-one cases where people were granted----
Mr. Cuccinelli. No. That is where I was going, Mr.----
Mr. Raskin. Oh.
Mr. Cuccinelli. I have no idea whether those 41--how they
relate to the 424 who got--who were among those who got notices
on August 7.
Mr. Raskin. OK. I got to say this is an occasion for some
frustration because we requested a lot of documents on this and
I think we received one document, which was, basically, the
statement that you had received about compelling facts and
circumstances.
So, we don't know what is going on there but we are cheered
that there was a formal reversal of the policy. But--and I
understand that there is no formal program but there was a
policy of allowing people in this situation to stay in the
country.
Then it appeared there was a reversal of that policy and
that we were going to summon these people essentially for
deportation proceedings.
Then there was congressional and public outrage I think of
a bipartisan character. That policy was reversed.
But we want to make sure that what was going to take place
on a sweeping and categorical level is not taking place at a
less visible ad hoc level. We want to make sure that the prior
policy really is reinstituted.
So, is that your sense of what is going to happen with
these 424 people? I mean, do we have to have a hearing on each
of these cases? I guess that is what I am asking you.
Mr. Cuccinelli. Well, of course, we don't testify about
individual cases and--but I understand that you would like to
see more written material.
But we gave you, in response to one of the letters, the
entire universe of what is written on this topic and it didn't
even cover one side of one page because this is a pure process
question in terms of how USCIS handles this internally.
You know, for other things, standards are laid out. They
are discussed. They are--but we don't have a law here. We don't
have a regulation. This isn't taking action. It is withholding
action.
So, beyond the secretary's statement about grants only on
compelling facts and circumstances, which I can't even compare
to anything before August 7 because no equivalent existed
before August 7, that is the only--that is the only item that
has been added to the--to the materials or information that an
adjudicating officer might reference.
Mr. Raskin. And the way I would treat that is that the
policy before was that cases of people being in the country to
receive medical treatment established a compelling reason to be
here and these are all compelling facts and circumstances.
That is certainly the way that I would understand it and it
is the way that I am interpreting. I think I speak for a lot of
my colleagues in saying that we would not want this to be the
occasion for the creation of a new bureaucratic narrowing of
the possibilities for people to be in the country to continue
the medical treatment that they were here to get.
Let me--well, my time is up and I am going to go ahead and
recognize Mrs. Maloney. But we will come back around because we
definitely have some more details that we want to get out of
this situation. Thank you.
Mrs. Maloney, you are recognized or five minutes.
Oh. OK. Then I will recognize Mr. Roy.
OK. And we will pass it down.
Mr. Keller. Thank you, Mr. Chairman, and thank you,
gentlemen, for being here today.
It is certainly a sensitive issue when we are talking about
individuals that have medical problems and it is always--we
always want to make sure that we handle things properly.
So, I just want to make sure that, for the record,
everything is straight. We are talking about deferred action,
which means we are deferring taking action against people that
may or may not be in the country here or overstaying a visa or
something like that.
Is that correct?
Mr. Cuccinelli. Well, they are here illegally----
Mr. Keller. OK.
Mr. Cuccinelli [continuing]. Thus, the request for the
deferred action.
Mr. Keller. OK. So, it is a request for deferred action.
And the rules currently under the law, you are just enforcing
the law that is currently on the books?
Mr. Cuccinelli. That is correct.
Mr. Keller. OK. You are not making--you are not making law
or anything else? You are just enforcing what is on the books?
Mr. Cuccinelli. That is correct.
Mr. Keller. So, when people received letters that said, if
you are not in the country legally you need--you need to show
up or you may--did the letter say may be? Action may be taken?
Mr. Cuccinelli. That is right.
Mr. Keller. So, the word ``may'' was in there?
Mr. Cuccinelli. It is.
Mr. Keller. OK. So, it wasn't saying this was actually
going to happen; it was going to say this may happen?
Mr. Cuccinelli. Correct. At the end of that time period,
and they were--they were form letters adopted from other usage
in the agency, is pretty standard language, and at the end of
that time period adjudicating officers would then revisit the
case about issuing an NTA or not.
Mr. Keller. So, in other words, if I was a person that
would have gotten one of those letters, I could have shown up
and made my case and I wouldn't necessarily have been forced to
leave the country?
Mr. Cuccinelli. Well, I mean, it could be the case that the
NTA is not issued. But, you know, we--of course, we never
really reached that point in this process with the--with the
initial August 7 shutdown of this process because it was
reopened less than a month later.
Mr. Keller. OK. But, again, I don't think it was any
person's intent to make people leave that had a medical problem
as opposed to making sure that the people that were here
actually had a decision made to let them stay by the U.S.
Government.
Mr. Cuccinelli. Well, it would have taken USCIS out of the
prosecutorial role of exercising prosecutorial discretion,
which is what deferred action is.
It would not have replaced it with anything else and it
is--and, you know, had it rolled forward then it would have
been considered in the normal course following on those
letters.
Mr. Keller. OK. So, in other words, what really needs to
happen is we, as Congress, should set up some kind of law. I
mean, I keep hearing program and everything else.
It is not really a program. It is just the fact that we are
not taking action on something that we should be.
Mr. Cuccinelli. That is absolutely correct and, I mean,
there is an equivalent in the State Department context. There
is B-2 visa.
People can come visit temporarily for medical purposes.
They have a whole process set up for that. It is temporary, and
that is established pursuant to law passed by Congress.
What we are talking about today is not--is not based on
law. It is not based on regulation. It is--it is much like the
executive creating law by deciding how to use deferred action,
an inherent prosecutorial--a prosecutorial authority to achieve
a goal, and if there is a goal in which Congress agrees should
be achieved and they pass a law to it, I promise you we will
implement that law.
Mr. Keller. OK. I think that is an important distinction,
that you are not trying to do anything other than enforce the
laws of our Nation and if we, as Congress, think that that law
needs to be changed and we make the changes, you will abide by
the changes.
Mr. Cuccinelli. Absolutely. Absolutely.
Mr. Keller. OK. Again, when we are doing a discretionary
case-by-case scenario, I think that doesn't lead to any
certainty for the people trying to enforce our law or for the
people that need to come here and get treatment.
Mr. Cuccinelli. Well, it is not--even deferred action is
not durable. It can be revoked at any time, and it isn't an
immigration status. So, it is--because it doesn't have a legal
foundation it is a very uncertain course for people to be on.
Mr. Keller. I mean, deferred action--I mean, we can defer
many things and it doesn't--it doesn't necessarily make them
legal, and I guess that is the point I want to say.
I could--we could decide we want to not enforce IRS law and
not collect taxes from a certain amount of people and defer
their taxes.
That doesn't mean they still don't owe them. It doesn't
mean they are following the law. And I guess the point I would
say for this committee rather than--rather than replowing the
ground that we have already plowed--the decision has been
changed--I would suggest that we give the administration and
the individuals trying to enforce our law the tools they need
and [that] Congress act on this rather than wasting time on
other things.
I yield back. Thank you.
Mr. Raskin. Thank you, Mr. Keller.
I now recognize Ms. Kelly, the gentlelady from Illinois,
for her five minutes of questioning.
Ms. Kelly. Thank you, Mr. Chair.
Ms. Albence, I want to understand ICE's role in this
process. USCIS didn't notify the public about this disastrous
decision they made in August.
To add to the confusion, once the public found out through
media reports, USCIS claimed that ICE would be handling medical
deferred action requests, going forward.
At the time, ICE said it was never informed of this hand-
off. According to press reports, ICE was, quoted, ``blindsided
by the move from USCIS'' and ICE was, quote, ``scrambling to
respond.''
Mr. Albence, was that true? Were you blindsided?
Mr. Albence. Yes. As we have put in writing back to the
committee, there were some discussions over the years with
regard to this process. But the ultimate decision and anything
contemporaneous with that decision was made by CIS.
Ms. Kelly. And when and how did you find out about the
decision?
Mr. Albence. I want to say that my chief of staff for
public affairs brought it to my attention.
Ms. Kelly. And when was that?
Mr. Albence. I don't have the exact date. It is going to be
when it hit the media. It would have been the day that we put
out that statement. So, I think that maybe the 25 or 27 of
August. But I am not exactly sure.
Ms. Kelly. So, that was the first time you learned that
USCIS was telling the press that ICE would be taking over
deferring action requests?
Mr. Albence. I believe so, yes.
Ms. Kelly. OK.
We know from USCIS's written responses to the subcommittee
on September 24 that the agency has been discussing ending
deferred action since October 2017.
In those same responses, when asked about collaboration
with ICE, USCIS wrote, ``We can confirm that discussions did
take place prior to August 7, 2019.'' So, which is it? Was ICE
blindsided by this decision or had ICE been involved in
planning this for months or even years?
Mr. Albence. Well, without getting too far into the
deliberative process, as I mentioned, there were discussions
that were held under prior leadership of both agencies with
regard to this process but that there had--nothing had been
settled on that or agreements with regard to how that would go
forward or be implemented, and those, largely, fell off the map
until this reappeared when CIS moved forward on their own.
Ms. Kelly. So, you were aware of prior discussions. Was
anyone at ICE aware of the exact discussions?
Mr. Albence. Again, without getting into the deliberative
process, we discussed lots of different programs and issues.
There were discussions as to whether or not this would be a
good idea.
These were not discussions or decisions that we were
involved with, and then, as I mentioned, it kind of just fell
off the map.
There was nothing recent with regard to those type of
discussions.
Ms. Kelly. OK. Do you want ICE to assume responsibility for
deferred action from USCIS?
Mr. Albence. So, I think the secretary has already spoken
to that. But to that comment and to, as our witness testified a
few weeks ago, ICE does not have a process or a mechanism to
affirmatively adjudicate or provide any sort of deferred
action.
ICE exercises prosecutorial discretion throughout the
enforcement continuum with regard to who to arrest, who to
detain, and then, ultimately, if a judge orders somebody
removed, who actually gets removed.
So, we do have a process on the back end of that--of that
where somebody could file for a stay of removal if so ordered
by an immigration judge. But that is where our prosecutorial
discretion lies, and rightly so.
Ms. Kelly. Have you discussed this with the acting
secretary?
Mr. Albence. We may have had one----
Ms. Kelly. Or with USCIS?
Mr. Albence. I mean, I have spoken with the acting
director, certainly, after the--after the fact. I probably was
in one meeting with the acting secretary.
But, largely, we have been removed from this process since
it went forward because it was not something that ICE was
involved in.
Ms. Kelly. And what are your recommendations?
Mr. Albence. My recommendations are that it remains with
the agency that is better equipped to adjudicate applications.
Ms. Kelly. OK. At any point in time has ICE considered
implementing a deferred action process similar to the one at
USCIS where an immigrant can proactively seek relief before
entering deportation proceedings?
Mr. Albence. Not a--not a proactive program. We will
utilize deferred action in certain instances, for example, if
there is a witness that we need in a criminal investigation or
somebody that is cooperating with a criminal investigation that
we are working or that another law enforcement agency has
requested us to.
But, again, it is only in conjunction with our law
enforcement mission.
Ms. Kelly. And is ICE playing any role in the USCIS review
and updating of this policy that----
Mr. Albence. No.
Ms. Kelly [continuing]. The acting secretary ordered?
Mr. Albence. No, ma'am.
Ms. Kelly. Do you agree with the decision to order
critically ill children to leave the country within three days
or face deportation?
Mr. Albence. OK. I don't think that is what the letter
said. What the letter required them to do is respond and I
deferred it to Mr. Cuccinelli.
But the letter required them to respond within 33 days to
make a determination as to whether or not a notice to appear
would be filed.
A notice to appear is only the beginning part of that
process. That begins the immigration court process. Ultimately,
nobody can be removed from this country absent a removal order
from an immigration judge.
So, that is where ICE steps in at the back end of that
process were somebody to be--have their case evaluated on a
case-by-case basis if somebody files a stay.
But if somebody has a significant humanitarian concern, a
medical issue to that sort, that is when ICE can execute its
prosecutorial--excuse me, exercise prosecutorial discretion and
grant that stay.
Ms. Kelly. I know I am past my time, but here is a letter
that says within 33 days of the date. So, not what you are
saying.
Mr. Albence. No, it says 33 days with the date, report to
CIS for determination as to whether or not a notice to appear
will be issued.
That notice to appear is not a removal order. That notice
to appear is what starts the immigration court process.
Again, ultimately, only an immigration judge except in
certain circumstances that would not be relevant here have the
ability to issue a ruling.
Mr. Raskin. Thank you, Mr. Albence.
The gentlelady's time has expired. But I know this is going
to become an issue. So, I do want to read that sentence just so
we are all on the same page here.
This was sent to the--in this case, Maria Isabel Buesa
Barrera, but it was the exact same letter that went out to
hundreds of people. This is what caused the controversy and the
crisis in the first place.
``You are not authorized to remain in the United States. If
you fail to depart the United States within 33 days of the date
of this letter, USCIS may issue you a notice to appear and
commence removal proceedings against you with the immigration
court. This may result in your being removed from the United
States and found ineligible for a future visa or other U.S.
immigration benefits.''
So, that is what was sent to critically ill children. That
is what caused the crisis. Again, we are delighted that there
was a decision to reverse this new policy with Mr. Cuccinelli.
There was no program in place but there was a policy of not
pursuing these. I think for the reason that it was implicit in
something that our colleague, Mr. Roy, said, which is this is a
very tiny number of people compared to the whole universe of
people who are actual immigrants to the country, and most of
them are here precisely to get medical treatment.
So, I am going to--Mr. Roy has passed this round and I am
going to recognize Mrs. Maloney for her five minutes.
Mrs. Maloney. I want to thank the chairman for focusing on
this important issue, and this is one of several hearings that
he has initiated on the subject, and I would like to ask
Director Cuccinelli about the standards to be applied to
deferred action programs.
I want to make sure that he understands that to many
families this is, literally, a life and death issue. Many
people, some on the other side of the aisle, have indicated
that they are not here legally but many are here legally and
they are under deferred action, yet they are being threatened
with deportation.
Sitting in the front row behind you is Nicholas Espinoza,
and he travelled here today to try to save his daughter's life.
She is seven years old and her name is Julia, and there she is,
Julia, fighting for her life.
She is in a special treatment program at Seattle's
Children's Hospital because she has had most of her lower
intestine removed and needs a full team of doctors to keep her
alive.
Julia is a U.S. citizen but her parents are not. Her mother
is her nurse. Deferred action has allowed Julia's mom to stay
in this country but her deferral expired in September. Her
father helps support her, too.
His deferral expired three days ago and they have both
applied for renewal this June but still have not heard about
their cases. It has not been decided, and Julia's doctors say
that if she leaves this country and goes back to her home
country she will die.
This gives her parents three options. I would say she only
has three: stay in the United States with their daughter, even
though their deferrals have expired; leave the country and
leave their daughter behind without any family to take care of
her; or take their daughter home, at which point her doctors
say she would surely die.
So, I want to politely and respectfully ask you, Mr.
Cuccinelli, to look at Mr. Espinoza. He is right behind you.
Mr. Espinoza, raise your hand so he can see you. Look him
straight in the eye and, as a professional, ask him which of
those options he should choose.
Mr. Cuccinelli. Madam Chairman, Dan Renaud was representing
USCIS at the last hearing and one of the things he said that I
think humanizes the agency--and I don't mean my, I mean the
employees of the agency's position--in many cases is that the
hardest cases we have to deal with are the kinds of ones we are
talking about today.
They are cases where it is possible that the law calls for
a very sympathetic person, or family in this case----
Mrs. Maloney. Reclaiming my time, because I don't have much
time.
We had many people here in our hearings that were brought
to this country by American scientists because they wanted to
study their disease so that we could possibly save their lives
and have medical research that could save the lives of many
other people.
I feel it is a very human decision, but I think it is
terribly wrong to deport someone who has come here legally--in
this case, she is here legally. But I would like to ask you
what would you decide if it was your child, if you are talking
about humanizing the situation?
Mr. Cuccinelli. Any parent does whatever they can to care
for their children and----
Mrs. Maloney. Well, then getting back to the specifics, can
you say here today that Julia's parents will not be penalized
for staying in the U.S. while they fight for the renewal of
their request to stay here, which is pending?
In other words, if you put a human face on it, this policy
has a devastating effect on people and if this administration
claims that it has been reversed, they need to tell people
clearly in writing to all the professionals in the government
and to the people that are here exactly what this means in real
time and what their real possibilities are.
I find this language discretionary--case-by-case basis.
What does this mean? Can you get back in writing to me how does
USCIS define it?
My time is up, but I would like to see in writing how you
define this exactly for the purpose of----
Mr. Cuccinelli. We do not. That is the answer. I know you
all don't like that answer. This is not an action, a program,
or policy. It is the withholding of action.
Madam Chairman, you just described what might make an
excellent individual standard in a piece of legislation. People
coming here and doing scientific studies and getting medical
care sounds to me like it would make an excellent piece of
legislation. We don't have that. We don't have that.
Mrs. Maloney. Well, simply put--simply put, one last
question.
Will we be applying exactly the same standard to deferred
action, going forward, as the agency used in the past? Yes or
no.
Mr. Cuccinelli. We did not explain--we did not pose any
standards other than the case-by-case decision, which then goes
up functionally to four regional directors who are career
employees and they talk to one another primarily to make sure
that they are implementing this process consistently across the
country.
But there are no standards we have given them other than
what you see here from the acting secretary of the language of
compelling facts and circumstances because we don't have a
legal basis to do so. We would welcome that from you all but we
do not----
Mrs. Maloney. Well, have you written guidance?
Mr. Raskin. The gentlelady's----
Mrs. Maloney. Have you provided training?
I yield back.
Mr. Raskin. Thank you. The gentlelady's time has expired.
Thank you for your answer to that.
There was one question embedded in the gentlelady's
thoughtful line of questions, which was what would your
recommendation be to people in this situation. I heard you to
say that parents will do--that all parents, legitimately, will
do whatever they can for their kids and I take that to mean
that they should continue to stay and have their children
treated.
Mr. Cuccinelli. Well, of course, all of you know I can
neither give them legal advice nor will we sit here at a table
in front of you and decide individual cases, accepting full
well how sympathetic the case is, which is exactly why we use
the kind of compelling facts and circumstances language that
the secretary did.
But if you are looking for me to decide a case here, I
cannot do that, and I believe you all know I cannot do that.
Mr. Raskin. OK. Thank you.
I am now pleased to recognize our distinguished colleague
from Massachusetts, Ms. Pressley, for her five minutes of
questioning.
Ms. Pressley. Thank you very much, Mr. Chairman.
This hearing has been a long time coming, and there was
some commentary from my colleague across the aisle saying that
we have better things to work on and should not be wasting our
time.
I never want us to lose sight of the impact on real
people's lives when we are talking about policy and that is, in
fact, why the American people sent us here. So, we are not
wasting our time.
Gentlemen, it is disappointing that it took the threats of
subpoenas to bring you before our committee today. In a moment
I will turn more to your actions but, first, I want to center
the families that have been impacted by this egregious policy
shift, families like my constituents, the Sanchez family, and
Serena Ibinez and her mom, Conchita. I told them when I met
them that I would fight for their children as if they were my
own and I intend to honor that.
Sixteen-year-old Jonathan Braley came before this committee
and shared his story. He spoke of how cystic fibrosis has
ravaged his body and, in fact, the tragic death of his younger
sister in Honduras, who suffered similarly.
The reckless actions of your agency that have put his
variability to receive life-preserving medical care at risk are
just unconscionable.
For 83 days, Mr. Chairman--nearly three months now--we have
been demanding answers out of this administration.
Mr. Cuccinelli, you testified that you understand that we
want more paperwork but you simply don't have it. None of us
here--we are in government--we don't want more paperwork.
But what we do want are real answers and justice for these
families and a peace of mind, and they deserve that and their
children deserve that.
So, for nearly three months we have been demanding answers
out of this administration for its horrendous and calloused
efforts to deport our critically ill immigrant neighbors and
their families.
And while I am relieved that the policy has been reversed,
these families and the American people deserve answers. They
deserve the certainty that they will be able to remain in this
country.
So, I would like to thank the brave families like these and
countless others who, despite the traumatic and imminent fear
of deportation and having to fight a life-threatening illness,
stepped up and spoke out to shine a light on this injustice as
well as the attorneys and the advocacy organizations.
I would also--I would like to request unanimous consent to
include statements for the record from the Lawyers Community
for Civil Rights in Boston as well as the American Immigrant
Lawyers Association.
Mr. Raskin. Without objection, they will be entered into
the record.
Ms. Pressley. Thank you.
Now, gentlemen, your agencies have still failed to turn
over a single document in response to our letter, and even in
response to the subpoenas that our forever chairman--may he
rest in power--Elijah Cummings signed in his last official act
before his transition.
It is shameful but consistent. So, I hope that you can
answer the questions that I have.
USCIS and ICE have continuously refused to identify who
made the decision to end consideration of deferred action at
USCIS.
I can only assume it is because no one wants to put their
name on such a disastrous, cruel, and un-American policy, and
the government officials who made that decision ought to be
held to account.
Mr. Cuccinelli, I remind you that you are under oath before
us today. Who made the decision that USCIS would stop accepting
and processing deferred action requests on August 7?
Mr. Cuccinelli. That was my decision as the acting
director.
Ms. Pressley. And you stand behind that decision?
Mr. Cuccinelli. That decision has been reversed.
Ms. Pressley. The reversal, yes. OK.
But today, those families have received no notification
confirming the reversal of that. Can you tell me why that is?
Mr. Cuccinelli. I think they have. We are a paper agency
when it comes to matters like this. So, when case are closed,
literally, a physical file is wrapped up and mailed to a
storage facility. So, when we reopen cases, we literally have
to----
Ms. Pressley. I am sorry. Sorry, I am running out of time.
I apologize. I have to----
Mr. Cuccinelli. I am just trying to answer the question.
Ms. Pressley. No, I apologize, sir. I just have to reclaim
my time.
So, Mr. Cuccinelli, would it be fair to say then that you
are not aware of some of the most consequential decisions and
policies coming out of your agency, since initially you said
you did not know that it was coming?
Mr. Cuccinelli. I did not say that today.
Ms. Pressley. Earlier today in your testimony. OK.
Yes or no, Mr. Cuccinelli, did anyone at the White House
play a role in this decision?
Mr. Cuccinelli. This was an agency decision solely and
other than discussion within the Department of Homeland
Security----
Ms. Pressley. So, reclaiming--I am sorry.
Did Stephen Miller play a role in this decision or not?
Mr. Cuccinelli. So, I am not going to get into specific
commentary back and forth. But I made this decision. The only
discussions had over the course of the----
Ms. Pressley. So, I am sorry. Again, for the record----
Mr. Cuccinelli [continuing]. Over the--yes, this is for the
record.
Ms. Pressley. Mr. Cuccinelli, I understand----
Mr. Cuccinelli. And as you noted, I am under oath. So, I
want to be completely truthful and I can't do that if I can't
be completely----
Ms. Pressley. Yes, you are under oath. So, I--so then this
is very easy to answer. So, yes or no----
Mr. Cuccinelli. I am not going to just answer the way you
want me to answer. I am going to give you an honest and
accurate answer.
Ms. Pressley. No. No. I am asking you to answer yes or no.
Was the president involved in this decision?
Mr. Cuccinelli. We cannot, as you well know, talk about
content of discussions with the White House.
Ms. Pressley. I am sorry, but you just said that you made
the decision.
Mr. Cuccinelli. Yes.
Ms. Pressley. OK. So, was the president involved, yes or
no? That should be simple.
Mr. Cuccinelli. I made this decision alone.
Ms. Pressley. Was Stephen Miller----
Mr. Raskin. The gentlelady's time has expired. Thank you
very much.
And we will go now to Mrs. Miller.
Mrs. Miller. Thank you, Chairman Raskin.
Mr. Raskin. Mrs. Miller, you are recognized for five
minutes.
Mrs. Miller. Thank you. We have a crisis on our border.
This year, to date, we have had over 850,000 total
apprehensions on our southern border. I commend and thank
President Trump for stepping up and taking action, while my
colleagues across the aisle have refused to appropriately and
adequately address this crisis.
During our last hearing on this topic, I posed a question
to Mr. Homan regarding all of the rhetoric surrounding the
crisis at our southern border, and now I want to propose it--
pose it to you.
Director Cuccinelli and Director Albence, has all of this
rhetoric helped move the ball forward on solving our Nation's
larger immigration issues?
Mr. Cuccinelli. Madam Congresswoman, I cannot say that that
is the case. Certainly there is extraordinary public interest
in this subject, and so you expect a certain amount of rhetoric
back and forth, but when it gets in the way of constructive
discussions--and, in fact, it has, to some degree, in the very
subject we are here talking about, deferred action, which we
have focused on in the case, in medical cases--but I keep
hearing reference to medical-deferred action, which does not
exist, by way of example of inaccuracy, and that doesn't help
the public discussion. And the hotter the rhetoric gets, the
harder it is for people to step back and have a constructive
discussion, even about our disagreements, and how to implement
our agreements.
So, you know, the thrust of your question is hard to argue
with, and I think all of us own some piece of that, but yet at
USCIS we just keep pressing forward to do the best job we can,
whatever that environment is.
Mrs. Miller. Thank you. Mr. Albence?
Mr. Albence. You are right in stating that we do have a
border security crisis, both in terms of illegal aliens but
also in terms of opioids and other contraband that is being
smuggled into and out of this country. ICE has, and DHS, has,
frankly, made clear, for many weeks now, that ICE was not
involved in this process. Yet here I sit, while we have a
tremendous crisis at the border, tremendous opioid crisis. Last
year we seized--Mr. Roy, you mentioned several hundred pounds--
we seized 11,700 pounds of fentanyl. We have communities that
are suffering greatly from the scourge of this drug.
I am more than willing--and I probably have testified in
front of Congress more than anybody from ICE within the past
two to three years--I am more than willing to come and speak
about anything that my agency does, and I am proud to do so.
But when I am dragged into an issue that has nothing to do with
what my agency does, it does take away--research, as I am sure
you understand, preparation for a hearing, and paperwork, and
time. I will also say that we did provide our documentation
with regard to the subpoenas to DHS prior to the deadline that
was established by this committee.
Mrs. Miller. Well, as you may know, my district is ground
zero with the opioid crisis, so it is very important to me. How
has the strategy proposed by our President helped curb the flow
of the illicit drugs?
Mr. Albence. So, we have worked diligently, both
domestically and internationally, with regard to trying to
address the opioid crisis. As I mentioned, we seized more
than--almost 12,000 pounds last year. That is a significant
increase over the prior year. We initiated more cases into
narcotics smuggling organizations.
We have expanded our border enforcement security teams to
69 this year, focusing a lot on the international mail
facilities, because we know that a lot of the precursors and
the material necessary to create these opioids is coming from
overseas, often from China. So, we have dedicated the resources
to where we think we will have the most impact. Obviously, if
Congress gives us more resources we can certainly do more.
Mrs. Miller. Just as an aside, I even noticed, a year or so
ago, in my neighborhood, all of a sudden there were all of
these personnel surrounding a house, waiting on a mail
delivery. So, it happens everywhere.
In your opening statement you also mentioned threats and
violent attacks on ICE officers, personnel, and their families.
Can you shed some light on that?
Mr. Albence. It is unfortunate, and I think a lot of the
danger that is being unnecessarily placed on our personnel
stems from misinformation or vilification or disgusting terms
that are used to describe sworn Federal law enforcement
agencies and other Federal civil servants. We have seen
instances over the past several months with officers being
assaulted. We had--thankfully, nobody was hurt, but we had an
individual shoot into one of our buildings at night, where our
command center was, where we had officers working on getting
criminal aliens out of the communities.
This heightened rhetoric--and I have testified in front of
Congress before about this--needs to--if Congress does not
like, or those in Congress do not like the laws that we
enforce, they have every ability to change them. But we are
not, as sworn law enforcement officers, in a position to pick
and choose what laws we should enforce. And I wouldn't think
Congress would want the Executive branch to override their
decisions as to the laws they pass.
Mr. Raskin. Thank you. The gentlelady's time has expired.
Thank you for your questioning.
By the way, Mr. Albence, I appreciate very much more answer
to Mrs. Miller. ICE is here because of answers that were
provided on September 24 by USCIS, which said that ICE had
participated in discussions leading up to the original
decision. We are still trying to get to the bottom of the
decision, and that is why we are here. We want to make sure
that we have clarity as to what the policy is and we can figure
out how this took place.
With that I go to Mr. Gomez for questioning for five
minutes.
Mr. Gomez. Mr. Chairman, thank you so much, and thank you
for clarifying that. I was about to do that but you beat me to
it.
Mr. Albence, I think Democrats would agree that we want you
to focus on preventing illegal drugs from entering this
country, making sure that people that shouldn't be here are not
here, people who are--and illegal guns. That is why we are
having this discussion, because all of a sudden instead of
focusing on that we are--this--there was a focus on kids who
were terminally ill, right, these chronic illnesses that needed
to be here. So, that is why we do want you to focus on the
other stuff.
You mentioned that there was a discussion, and you couldn't
get into how--you couldn't get into who was in the discussion,
involved in the discussion, regarding deferred action. Could
you tell me how far back the discussion, at least, started?
Mr. Albence. It would have been--I don't have the exact
dates, obviously. I wasn't party to it. But it would have been
three ICE directors ago and one CIS director ago.
Mr. Gomez. How--it is hard to keep track how many directors
this Administration has gone through, but how many months?
Mr. Albence. Pushing probably a year and a half to two
years.
Mr. Gomez. OK. So, about when this Administration--2018?
Mr. Albence. I would say probably 2018.
Mr. Gomez. 2017. OK.
Mr. Albence. Not 1917. 1918.
Mr. Gomez. 1918? OK. Thank you. I just wanted to get
clarification on that.
I want to go into, just quickly, into the questions. Mr.
Cuccinelli, you apparently sent an email to the American
Immigration Lawyers Association saying, quote, ``USCIS field
offices are informing the public of the change in person and on
individual basis,'' end quote. This seems to be the approach
that has led to panic and confusion, and I believe it was not
acceptable.
Mr. Cuccinelli, according to a recent news report, you
personally decided that it was not necessary to notify the
public. Is that true?
Mr. Cuccinelli. Congressman, it is our typical practice,
when we change a process that doesn't have--that isn't based in
regulation or law, to not do public notification.
Mr. Gomez. So, that is--that----
Mr. Cuccinelli. So, that is the rationale for having done
it on a case-by-case basis.
Mr. Gomez. So, you did not notify the public. OK. Why
didn't you think it was necessary? Because of the--it was just
a process? That is it? That is the way you did it, even though
it was dealing with people's lives?
Mr. Cuccinelli. Well, sir, everything we do deals with
people's lives, and, you know, in various ways. And--but as I
said, typically when we are changing a process and not changing
legal standards or something else of that nature, guidance to
adjudicators, for instance, then we do not have public
announcements.
Mr. Gomez. Your agency's September 24 response to this
subcommittee you said that you did not notify the public
because this was merely a, quote, ``operational change,'' which
is kind of what you are saying again.
Mr. Cuccinelli. Yes, sir.
Mr. Gomez. Do you really think telling critically ill
children and their families they have 33 days to leave the
country or face deportation is merely an operational change?
Mr. Cuccinelli. Well, you are referencing the form letters
that got sent out, and the reality is that they weren't----
Mr. Gomez. Don't tell me that it wasn't----
Mr. Cuccinelli [continuing]. Facing--do you want me to
answer the question?
Mr. Gomez. I have it right here. I have it right here.
Mr. Cuccinelli. I know you do.
Mr. Gomez. OK. What does it say?
Mr. Cuccinelli. It says you may get an NTA. That is what it
says.
Mr. Gomez. No, it says very clearly you are not authorized
to remain in this country. If you fail to depart the United
States within 33 days of this letter, the U.S. may issue--may,
but it is pretty scary. I mean----
Mr. Cuccinelli. In the case----
Mr. Gomez [continuing]. What happens if the IRS sent you a
letter saying, hey, if you don't report to the IRS we might
begin to audit you. Would you be concerned about that?
Mr. Cuccinelli. I would certainly pay attention to it. Yes,
I would.
Mr. Gomez. Exactly.
Mr. Cuccinelli. Perhaps it would help if you all knew that
when anyone presents to USCIS, seeks a benefit, and does not
obtain some status that has them at least not here illegally--
--
Mr. Gomez. I am going to reclaim my time----
Mr. Cuccinelli [continuing]. We--we----
Mr. Gomez [continuing]. Because I have a few more
questions.
Mr. Cuccinelli [continuing]. We give them a similar letter.
Mr. Gomez. Let me ask you a few more questions. Did you
approve this policy without even bothering to figure out how
you would implement it?
Mr. Cuccinelli. No.
Mr. Gomez. No, you did not. So, what was your plan to
notify people requesting deferred action, in the general
public, if they knew that USCIS would stop considering deferred
action requests?
Mr. Cuccinelli. Oh, as you noted earlier, our plan was to
notify them one at a time, individually and directly.
Mr. Gomez. That was the plan. So, you had no plan but you
did?
Mr. Cuccinelli. That was the plan.
Mr. Gomez. Was to notify them.
Mr. Cuccinelli. Yes.
Mr. Gomez. But then you also stated that the function would
be transferred over to----
Mr. Cuccinelli. No, no, no, no, no, no. No, sir. That is a
dramatic mischaracterization, and I think it is how ICE got
dragged into this in the first place. There was never any
suggestion, anywhere, by anyone, that we were going to transfer
some affirmative application process for deferred action over
to ICE. That has never, ever been the case.
Mr. Gomez. But Mr. Albence just testified that he was first
notified by a public affairs officer that learned about it
through the press. That was not correct?
Mr. Cuccinelli. It is not transferring this to ICE. ICE has
their own discretionary authority, which Mr. Albence described.
We were, to put it in simple terms, ceasing use of this
discretionary authority----
Mr. Gomez. So----
Mr. Cuccinelli [continuing]. Which dates all the way back
to INS.
Mr. Gomez. When you decided to reverse the policy, why
didn't you choose to issue a new--like a news alert, a public
release, something that said that was being reversed?
Mr. Raskin. The gentleman's time has expired. You may
answer the question.
Mr. Cuccinelli. Yes. If you are referring to the
Secretary's reversal, we did do that.
Mr. Gomez. On the--regarding the September----
Mr. Raskin. He is referring to the initial policy.
Mr. Cuccinelli. Well, I thought I heard reversal.
Mr. Gomez. Your full policy reversal on September 18?
Mr. Cuccinelli. Yes, sir. That was publicly announced.
Mr. Gomez. OK. I don't have that.
Mr. Raskin. OK. The gentleman's time has expired. We will
come to----
Mr. Gomez. Thank you so much.
Mr. Raskin. Thank you. We will come to Mr. Roy for five
minutes of questioning.
Mr. Roy. Thank you, Mr. Chairman. Mr. Albence, it is--falls
under ICE for removal proceedings. Correct?
Mr. Albence. That is correct.
Mr. Roy. Mr. Cuccinelli, let me ask you a question. Has
Congress, this august body, created a status for individuals
who overstay visa or come here illegally?
Mr. Cuccinelli. No.
Mr. Roy. Is there a law directing USCIS to give status to
any of the individuals we are talking about here today, that
Congress has made clear and put into law?
Mr. Cuccinelli. No.
Mr. Roy. My colleagues mention a compelling reason to be
here as a standard of some sort. Is that a visa category?
Mr. Cuccinelli. No, and it is very difficult to talk about
at a policy level, about how it would affect any particular
case, because by definition it is case by case.
Mr. Roy. Is it a status?
Mr. Cuccinelli. No.
Mr. Roy. Is it as a human being, as a Christian, or as
someone of faith, or of, you know, looking at someone through
the eyes of a human being, something that is concerning, a
compelling reason to be here?
Mr. Cuccinelli. Sure.
Mr. Roy. Somebody who is sick.
Mr. Cuccinelli. Sure. Absolutely.
Mr. Roy. Is anything in the letter that was sent on August,
whatever it was, 7, factually untrue?
Mr. Cuccinelli. No.
Mr. Roy. Was it legally correct?
Mr. Cuccinelli. Yes.
Mr. Roy. Might people quibble over tone----
Mr. Cuccinelli. Oh, sure.
Mr. Roy [continuing]. But it was factually correct?
Mr. Cuccinelli. Sure.
Mr. Roy. Now you said you made a decision to change
procedures.
Mr. Cuccinelli. Yes.
Mr. Roy. My perception of the procedures, that I can try to
figure out the policy, which is what Congress should
theoretically be in the job I am doing, if one overstays a visa
or comes here illegally, and you face a health issue and you
are getting care--in the process that you were here, you had
status, you were here legally--or you had status and you were
getting care and now you are overstaying your visa, and the
process, really, is essentially to go to USCIS and to beg for
some sort of intermittent, two-year deferral from an entity,
USCIS, without it being really rooted in any law that Congress
has put forward, and you seek deferred action from, in essence,
ICE, by way of a USCIS letter, when USCIS doesn't actually
prosecute and, therefore, you are effectively leaving these
individuals in limbo. Do I have roughly the characterization
correct?
Mr. Cuccinelli. Yes, and it might help people to
understand, the reason I said this goes back to INS days, back
in INS, the same person, as a regional director, had the
prosecutorial authority that ICE now manages, and the USCIS
authority, at the same time. That was all in one person.
When INS was broken up, in the initial distribution of
authorities, this was just given to the three agencies, and I
don't think with much consideration of what is the difference
between CBP, ICE, and USCIS, as it relates to something like we
are talking about.
Mr. Roy. So, in trying to clarify the procedures, were
you--can you clarify why you were trying to clarify those
procedures?
Mr. Cuccinelli. So, several years ago the President
indicated, publicly, that he wanted us to stop utilizing
essentially expanding the law to provide benefits that aren't
provided by Congress or by regulation, and that has been an
ongoing process at USCIS. There are lots of little things that
have already taken place, all publicly known. This is along
those lines, which is why I understand Francis Cissna, then the
director, all the way back at the end of 2017, in conversations
with field leadership, determined that this was one of those
types of, just descriptively, authorities, and to start working
to back out of utilizing that authority because it wasn't
appropriate for USCIS' mission.
Mr. Roy. Isn't this at the core of the questioning here,
right? I mean, on so many levels I get frustrated that Congress
doesn't act. I get frustrated that Congress doesn't act with
respect to the authorization of the use of military force.
Eighteen years after we passed the first on in 2001, we have
men and women enlisting into the military who were not alive
when we passed that authorization of force.
In the spring I introduced legislation called the Article
One Act, that would have national emergency declarations expire
after a year. I happen to believe that regardless of who is in
the White House, Congress should reclaim its authority.
Congress should act. Congress should do what we are supposed to
do, which is pass laws and then hold you all accountable for
carrying out those laws.
And it strikes me that part of the problem we have here, in
this case, but also with things like DACA and DAPA, right, so
let's--you know, in terms of whoever is in the White House--it
doesn't matter to me--like let's have clarity in the law, and
let's not expect bureaucrats, respectfully, those in the
agencies, to be making policies on the margins of the law that
Congress passes.
So, if we have, in the case of DAPA and DACA, which when I
was the first assistant attorney general of Texas we litigated,
and it went to the U.S. Supreme Court, the question was whether
or not conferring status and benefits to a class of individuals
is something you could plausibly say is actually prosecutorial
discretion. It is ridiculous for Congress to be building a
policy on the back of asking bureaucrats to make those
decisions when we hold the pen, and we could decide what laws
we want to put in place. Would you agree with that?
Mr. Cuccinelli. Yes. You are not building a policy. You are
telling us to implement a policy. You are not giving us
standards. You are asking us for standards that don't exist in
law. And as I said earlier, pass a law. I promise you we will
implement it.
Mr. Raskin. All right. The gentleman's time has expired. I
want to thank Mr. Roy for his thoughtful comments.
I want to--I do want to say I concur with a lot of your
sentiments about Article I and the exercise of congressional
power. On the DACA question, the House of Representatives has
passed the Dream Act and it is over in the Senate, so we are
waiting for Senate action. So, it takes two to tango here in
the U.S. Congress. It is not just the House side. It is the
Senate as well, in order to have effective Article I action.
With that I will recognize Ms. Wasserman Schultz for her
five minutes of questioning.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Cuccinelli, under your leadership USCIS has actually
bragged about systematically restricting legal immigration, and
I think it is important for us all to be clear about what you
have been aiming to accomplish. My constituents, Americans
across the country, are not fooled by this Administration's
specious attempts to distinguish between documented and
undocumented immigration. You and Mr. Trump don't want anyone
who looks or talks differently than Caucasian Americans to be
allowed into this country.
Mr. Cuccinelli. That is false.
Ms. Wasserman Schultz. I am sorry. Please don't interrupt
me, and I would like the time to----
Mr. Cuccinelli. That is defamatory.
Ms. Wasserman Schultz. Excuse me. There is nothing
defamatory about it, and----
Mr. Raskin. The gentlelady controls the time and the
witness will get a chance to respond.
Ms. Wasserman Schultz. Thank you very much. You want to
block all immigration and make life harder for immigrants, and
you have demonstrated that you will pursue this heinous white
supremacist ideology at all costs, even if it means making
critically ill children your collateral damage in the process.
And this goes to a comprehensive pattern of harm at USCIS under
your leadership.
In August, you announced the Administration's new public
charge rule, for example, which would deny legal status to
immigrants who use social services. Mr. Cuccinelli, has USCIS
done any analysis of how many children may stop receiving
critical services due to fear of losing legal status under this
rule? I would like you to answer that question please.
Mr. Cuccinelli. After declaring that I am not a white
supremacist, that you alluded----
Ms. Wasserman Schultz. You have had white supremacist----
Mr. Cuccinelli. Nor is the President.
Ms. Wasserman Schultz. OK. Facts matter.
Mr. Cuccinelli. Yes, they do. Yes, they do. Truth matters.
Ms. Wasserman Schultz. That is why I am stating them here.
Mr. Cuccinelli. Yes, no. You certainly are----
Ms. Wasserman Schultz. Please answer the question. Please
answer the question.
Mr. Cuccinelli [continuing]. You are certainly----
Ms. Wasserman Schultz. How many children----
Mr. Cuccinelli [continuing]. Cloaked in legislative
privilege, but that means you can get away with not telling the
truth.
Ms. Wasserman Schultz. Reclaiming my time. How many
children may stop receiving critical services due to fear of
losing legal status under this rule? Yanking social services.
Mr. Cuccinelli. You are asking a public charge.
Ms. Wasserman Schultz. That is right.
Mr. Cuccinelli. I don't have that information in front of
me.
Ms. Wasserman Schultz. Does anyone behind you have the
information?
Mr. Cuccinelli. We came to talk about deferred action
today.
Ms. Wasserman Schultz. I am able to ask any question I
would like in your jurisdiction.
Mr. Cuccinelli. That is fine, but I----
Ms. Wasserman Schultz. You have a policy----
Mr. Cuccinelli [continuing]. Am here to accommodate what
the subcommittee wants.
Ms. Wasserman Schultz. No. Reclaiming my time. You are the
head of USCIS, and you are going to tell me that you
established a policy on the public charge rule and you don't
know how many children, off the top of your head, it affected?
Did you not think it through before you insisted that----
Mr. Cuccinelli. That rule----
Ms. Wasserman Schultz.--was the policy?
Mr. Cuccinelli [continuing]. That rule is 1,000 pages long,
ma'am.
Ms. Wasserman Schultz. It is a pretty--so, you know, when
you are talking about affecting children, one would think that
someone in your position, if you were going to establish such a
heinous policy, with such far and significant reach, and
potentially harm thousands of children, that you would know how
many children it would affect.
Mr. Cuccinelli. So----
Ms. Wasserman Schultz. You don't know?
Mr. Cuccinelli [continuing]. The--what you refer to as
heinous policy is a 1986 law----
Ms. Wasserman Schultz. OK. I am not asking you for a
commentary----
Mr. Cuccinelli [continuing]. Passed on----
Ms. Wasserman Schultz.--On the policy.
Mr. Cuccinelli [continuing]. A wildly bipartisan basis.
Ms. Wasserman Schultz. OK. But you have implemented a
policy that yanks social services and denies the ability----
Mr. Cuccinelli. It denies nothing.
Ms. Wasserman Schultz.--of children legal status to
immigrate here if they are going to use social services. In
fact, advocates have reported that immigrant families are
terrified and that some have already dropped their children
from essential programs, like Medicaid and Temporary Assistance
for Needy Families.
When you announced this rule you were asked whether it was
consistent with the poem under the Statue of Liberty, which
reads, quote, ``Give me your tired, your poor, your huddled
masses yearning to breathe free.'' In response you said the
poem was only referring to people coming from Europe, and
people coming from Europe would not be a public charge.
Mr. Cuccinelli. I did not say that.
Ms. Wasserman Schultz. That is what you said.
Mr. Cuccinelli. That is not what I said.
Ms. Wasserman Schultz. Do you think--well, it certainly was
the implication.
Mr. Cuccinelli. No, no, no. It is what you would like to
broadcast, but that is----
Ms. Wasserman Schultz. No, no. I----
Mr. Cuccinelli [continuing]. Absolutely inaccurate.
Ms. Wasserman Schultz.--I heard you say it. I heard you
defend it. And I want to know whether you think our immigration
policies should treat immigrants from Europe differently from
other immigrants from other parts of the world.
Mr. Cuccinelli. No.
Ms. Wasserman Schultz. And is the purpose--you don't think
so?
Mr. Cuccinelli. Correct.
Ms. Wasserman Schultz. So, then I am not sure why you made
that statement----
Mr. Cuccinelli. Well, I didn't.
Ms. Wasserman Schultz.--because it certainly made it seem
like----
Mr. Cuccinelli. You--you--you----
Ms. Wasserman Schultz. You did. You said the poem----
Mr. Cuccinelli [continuing]. You appended your own--your
own piece----
Ms. Wasserman Schultz. No, no, no.
Mr. Cuccinelli [continuing]. To the end of that.
Ms. Wasserman Schultz. You said the poem was only referring
to people coming from Europe. There is no doubt about that.
Mr. Cuccinelli. You added, to the end----
Ms. Wasserman Schultz. And--and----
Mr. Cuccinelli [continuing]. Of the statement----
Ms. Wasserman Schultz.--and the implication was that people
from Europe were not likely to be a public charge.
Mr. Cuccinelli. No, it was not.
Ms. Wasserman Schultz. Is this--were you attempting to shut
down the American dream for immigrants who may not be rich or
white, with this policy?
Mr. Cuccinelli. No. Obviously.
Ms. Wasserman Schultz. OK. We are the wealthiest country on
earth. Surely we can live up to the spirit of Lady Liberty and
open our arms to immigrant families who just want to make a
better for their children, and not yank the rug out from under
them, as you have, with this heinous public charge policy, and
the intimidation tactics that you have used to make sure that
people understand that they are not welcome here if they are
brown or if they need help.
Mr. Cuccinelli. That is false.
Ms. Wasserman Schultz. Thank you. I yield back the balance
of my time.
Mr. Cuccinelli. That is utterly false.
Ms. Wasserman Schultz. It is not false.
Mr. Raskin. The lady is----
Ms. Wasserman Schultz. The time is not yours.
Mr. Cuccinelli. With the law back to----
Ms. Wasserman Schultz. Thank you. I yield back the balance
of my time.
Mr. Raskin. The lady has yielded back her time.
Ms. Wasserman Schultz. And the witness does not have the
floor.
Mr. Raskin. I will now recognize Mr. Clay, the gentleman
from Missouri, for his five minutes of questioning.
Mr. Clay. Thank you, Mr. Chair, and thank you for
conducting this hearing. The American Academy of Pediatrics, or
AAP, represents over 67,000 pediatricians across the country.
After USCIS decided to deport critically ill children, AAP
wrote a letter to you, Acting Director Cuccinelli, and to
Acting DHS Secretary Kevin McAleenan, about the decision.
AAP wrote, and I quote, ``We implore you to reverse this
decision so that countless children and their families can
continue to apply for deferred action. For some children, this
is a matter of life and death.''
Mr. Cuccinelli, have you read that letter?
Mr. Cuccinelli. Yes, sir.
Mr. Clay. Turn on your mic for me, please.
This subcommittee received 15 more letters from state
chapters of the American Academy of Pediatrics in advance of
our hearing in September. These letters include truly
heartbreaking stories of children and families thrown into fear
for their lives because of this situation. Doctors in
Massachusetts reported that the family of a 10-year-old who had
been blinded by eye cancer had been ordered to leave the
country, along with the family of a seven-year-old suffering
from severe epilepsy.
Mr. Cuccinelli, did you know about either of those--these
cases, when USCIS decided to end deferred action?
Mr. Cuccinelli. Congressman, we don't read individual cases
when making a procedural decision like that, so the answer to
your question is no.
Mr. Clay. Did you think about maybe these kids needed some
life-saving medical attention, that they could only get here,
in this country?
Mr. Cuccinelli. Well, Congressman, we knew that as a
practical matter they had come to us seeking deferred action
affirmatively. They were not in removal proceedings. None of
the cases we have talked about before USCIS were in removal
proceedings. None were threatened with deportation. I have
heard ICE people say that they were not on--you know, none of
these people would be on any targeted list. So, when we
withdrew from the exercise of deferred action in these
circumstances, we knew that deferred action continued to be
available to every single one of these sympathetic families.
Mr. Clay. OK. Listen to this. Pediatricians in Indiana
reported that parents of at least two infants in a neonatal
intensive care unit received letters from USCIS, telling them
to leave the country within 33 days. Imagine that. You have
just had a child that is so sick she is in NICU. At the moment,
your child's health should be the only thing you have to worry
about. The U.S. Government orders you to pack up and leave the
country.
Mr. Cuccinelli, did you know about these cases before USCIS
decided to end deferred action?
Mr. Cuccinelli. My answer is the same as the earlier
examples.
Mr. Clay. Which is?
Mr. Cuccinelli. We do not look at particular cases when
making process decisions.
Mr. Clay. So, you don't care.
Mr. Cuccinelli. No, you asked----
Mr. Clay. No, I am asking.
Mr. Cuccinelli. You bet I care.
Mr. Clay. Do you care that----
Mr. Cuccinelli. You bet I care.
Mr. Clay [continuing]. Somebody is in a----
Mr. Cuccinelli. You bet I do.
Mr. Clay [continuing]. In a----
Mr. Cuccinelli. And it would be great----
Mr. Clay [continuing]. Neonatal intensive care unit, about
to die?
Mr. Cuccinelli [continuing]. If we had a law--if you cared
enough to pass a law, we would enforce it.
Mr. Clay. Let me ask you this. What would you recommend
those parents do when they receive that letter?
Mr. Cuccinelli. What, what most----
Mr. Clay. What should they do?
Mr. Cuccinelli [continuing]. What--what we expected most of
them to do was very little, candidly. We send a lot of those
letters out, and not in circumstances like we are talking
about.
Mr. Clay. What do you expect them to do? Do you want them
to leave the country? Pack up their stuff? Take their sick
child and go?
Mr. Cuccinelli. Either that or make their case in the
immigration process, where it is appropriate to do so----
Mr. Clay. All in the middle of----
Mr. Cuccinelli [continuing]. To stay.
Mr. Clay [continuing]. All in the middle of them being
there trying--hoping and praying that they save their child's
life?
Mr. Cuccinelli. Which is why deferred action continues to
exist elsewhere----
Mr. Clay. How cruel. How cruel. Really? Really? I don't
believe this. I yield back.
Mr. Raskin. Thank you. The gentleman's time has expired.
Thank you for your questions, Mr. Clay.
Mr. Grothman has joined us and would like to waive on to
the committee, and without objection we will waive him on to
the committee, or to the subcommittee, for purposes of
questioning.
Mr. Grothman, you are recognized now for five minutes.
Mr. Grothman. First of all, I would like to thank you for
all the business you--all the work you do. I have been down on
the border myself. I know some of the challenges that, you
know, you guys are dealing with, with the illegal immigrant
population, and I think it is very underappreciated, I think,
given some of the stories I have heard. While I respect law
enforcement, in general, there a few people who have to deal
with as much as you folks do.
Mr. Albence, in your opening statement you mentioned
violent attacks and threats on ICE offices and personnel and
their families. Could you elaborate on that a little bit?
Mr. Albence. Certainly. We had an individual, and
unfortunately has yet to be caught, that fired a weapon into
one of our facilities where we had officers working. We have
had protest groups lay our buildings under siege, threatening
individuals at work there, aggressive actions against them,
many of whom--we have to remember, many of the people that work
for us are not law enforcement officers. We have attorneys. We
have mission support specialists, many of whom served their
country and their government 30, 40, 50 years, and have done
nothing but honorable work that entire time.
I think reckless language used to denigrate them as
individuals, and the service that they have done, only serves
to heighten and stir into action some people who might not be
of a right mind.
Mr. Grothman. How is this committee's insistence on
continuing hearings on this issue impacting you?
Mr. Albence. Well, as I mentioned previously, and as DHS
has made clear, this was not anything that was involved in the
decision on this process. It was CIS'. It is a CIS process that
they made the decision on, as Mr. Cuccinelli himself has
spoken, that this is his decision.
As you can understand, with an agency 20,000 strong,
enforcing more than 400 criminal laws, things that serve as
distraction, you know, are very difficult for us to try to keep
focused on the very important tasks we have, whether it is with
regard to getting criminal aliens out of our communities,
whether it with regard to the opioid and fentanyl epidemic,
whether it is dealing with child predators and sexual
exploitation. And even with all this, the dedicated men and
women of ICE show up every day and do the best that they can
for this country and uphold the oath that they took.
Mr. Grothman. I am sure the vast majority of people from my
district respect what you are trying to do, and I think it is
very tragic when other people go after you.
I will give you another question. You have been in the news
a lot lately, talking about sanctuary cities, the harm they
cause American families, both citizens and immigrants. I think
the issue would be better explored by the Oversight Committee,
the House Oversight Committee overall. Would you agree?
Mr. Albence. I would welcome help from anyone in Congress
that would like to give it to us.
Mr. Grothman. Can you speak to the harms that sanctuary
cities cause to us, cause to American citizens, in general?
Mr. Albence. Certainly. And we had our EID testify, I
believe, in front of the Senate Judiciary a few weeks ago.
There are, every day, right now, as we speak, convicted
criminal aliens that are walking out the front doors of jails
because we have jurisdictions that will not cooperate with us.
Unfortunately, many of these individuals will go out and commit
further crimes. Those are preventable crimes. Those are
preventable victims. And, unfortunately, we have more
jurisdictions that are choosing not to cooperate with us,
choosing to put politics over public safety, and putting their
communities in harm's way, rather than remembering why we are
here, as law enforcement officers, and that is to keep every
community safe and every person within that community.
Mr. Grothman. Yes. Just horrible. I sometimes think of it
as like my--sometimes these people who don't like putting
criminals in jail. They don't live anywhere where the criminals
live. It is all fine and good to send criminals out----
Mr. Albence. It is hard for me to understand sometimes,
where you have a jurisdiction which just arrested this exact
same individual for a criminal violation, enforcing the laws
that they were sworn to uphold, yet when we come to take
enforcement action against that exact same individual,
sometimes hours later, to enforce the laws that we are sworn to
uphold, we are prevented from doing so.
Mr. Grothman. Well, I think--my guess is part of the
answer, the people who prevent you from doing so live in the
nicer parts of the communities, where they don't have to worry
about the crimes being committed.
But at a Senate Judiciary Committee last week, one of our
colleagues seemed confused about detainers and sanctuary cities
and that ICE was looking for local law enforcement to detain
innocent people. Could you set the record straight, or maybe
kind of educate some of these Congressmen on what is going on?
Mr. Albence. So, just like another law enforcement agency,
when we lodge and detain, or we do so based on probable cause,
most of the individuals against whom we lodge and detain are
convicted criminals. On the civil immigration enforcement side,
70 percent of the people that we arrest come out of state jails
and prisons. Ninety percent of the people that we arrest--and
this has been consistent for the better part of the last
decade--are a convicted criminal, have a pending criminal
charge.
Then two smaller buckets within that 90 percent are
individuals who have been deported previously and illegally re-
entered, which is a Federal felony and one which we prosecute
aggressively, almost 7,000 times in 2018, and those that are
immigration fugitives, those who have their day in immigration
court, gone through the entire court process, and now have
avoided complying with that order. We have more than 576,000
immigration fugitives, a number that grows every day.
Mr. Raskin. Thank you, Mr. Albence. The gentleman's time
has expired. I now recognize the vice chair of the committee,
Ms. Ocasio-Cortez, for her five minutes of questioning.
Ms. Ocasio-Cortez. Thank you, Mr. Chair. Mr. Cuccinelli, I
just wanted to confirm something that I had heard earlier with
my colleague from Massachusetts. Did I hear correctly that it
is your testimony today that you were the individual who made
the decision to end deferred action?
Mr. Cuccinelli. Yes. I'm the acting director when we
implemented this, and I am responsible for that.
Ms. Ocasio-Cortez. OK.
Mr. Cuccinelli. So, at that time it is my decision.
Ms. Ocasio-Cortez. So, it was your decision.
Mr. Cuccinelli. Yes, ma'am.
Ms. Ocasio-Cortez. OK. Thank you. I actually greatly
appreciate that, because we have been trying to get to the
bottom of that question for quite some time, and I am sure it
will help us in future examinations of this issue.
Mr. Cuccinelli, in your agency's September 24 response to
this committee, you stated that USCIS did not engage external
stakeholders to solicit feedback on the anticipated
consequences of your policy change. Why didn't you do that?
Mr. Cuccinelli. For something like this, where we are
changing a process and we are not operating off of a legal or
regulatory foundation, it is not a common practice--I am not
aware of any other instances where we would seek that kind of
input.
Ms. Ocasio-Cortez. So, you did not consider the impact your
decision would have on critically ill children before making
this decision?
Mr. Cuccinelli. We understood that even with USCIS backing
out of the role of affirmatively granting deferred action in a
limited number of cases, that that opportunity still existed
within the entire DHS system.
Ms. Ocasio-Cortez. I see. Mr. Cuccinelli, in August you
told Fox News that you, quote, ``see USCIS as a vetting agency,
not a benefits agency.'' But Congress created USCIS separate
from ICE and CBP to serve immigrants. In fact, it is USCIS' own
policy manual that explains that Congress created the agency
to, quote, ``focusing exclusively on the administration of
benefit applications.''
So, Mr. Cuccinelli, USCIS is a benefits agency. Why do you
consider it not to be one?
Mr. Cuccinelli. So, perhaps the best way to put that is
that I would characterize us as a vetting agency first, but
also a benefits agency, because you all in Congress have laid
out a whole lot of different benefits that we adjudicate for
immigrants and potential immigrants to this country. So, that
is part of our business and mission, and my phrasing is to
emphasize the role we also play, as an element of Department of
Homeland Security, in ensuring the safety and security and
integrity of both the country and that immigration system.
Ms. Ocasio-Cortez. So, Mr. Cuccinelli, I think what is
tough here is that--and while I respect that Congress hasn't
done its job, in many respects, in defining immigration policy,
it has been a failure for a very long time, for Congress to be
able to define a lot of policies correctly. But we still have
created a mission for USCIS through which the agency can
interpret the spirit of this law. It says right here, in USCIS'
website, the agency's core values are defined as integrity,
respect, innovation, and vigilance. And there is a reason that
USCIS is separate from ICE and CBP. I don't understand how
deporting critically ill kids is consistent with any of these
values.
Mr. Cuccinelli, do you believe that you treated children
with cancer, cystic fibrosis, and other diseases with the
dignity and courtesy of the mission of this agency, when you
decided, in secret, to end consideration of deferred action and
ordered them to leave the country within 33 days or face
deportation?
Mr. Cuccinelli. Yes, there was nothing secret about what we
did. Because it was a process change, we made individual
notifications. But you, yourself, just referred to the ability
to view the mission and the spirit, and it is one chain after
another. There is no law or regulation in any of that. So, we
do the best we can, fulfilling our role and limiting ourselves
to our role, particularly when there is continuing avenue----
Ms. Ocasio-Cortez. Right, but----
Mr. Cuccinelli [continuing]. Recourse for these folks.
Ms. Ocasio-Cortez [continuing]. But you have discretion in
your role. So, here is the thing that I can't figure out, is
that you have thousands, tens of thousands, hundreds of
thousands of cases, if not millions.
Mr. Cuccinelli. Millions.
Ms. Ocasio-Cortez. Millions of cases in this country. And
you decided to prioritize the deportation of critically ill
kids, and I am trying to figure out why.
Mr. Cuccinelli. So, we did not do that. We have gone
through----
Ms. Ocasio-Cortez. Out of all the--but you did--out of all
of the----
Mr. Cuccinelli [continuing]. The process----
Ms. Ocasio-Cortez [continuing]. Reclaiming my time.
Reclaiming my time, with respect.
Mr. Cuccinelli. Well, so you asked a question----
Ms. Ocasio-Cortez. But with respect----
Mr. Cuccinelli [continuing]. And I should answer the
question.
Ms. Ocasio-Cortez [continuing]. With respect, and I will
give you a moment. I will give you a moment. With respect. When
you make this decision, at a time, at a specific time, you are
making this decision with--at the cost of other decisions. So,
why did you make this decision to deport critically ill kids
before almost all the other decisions that you had to make as
an agency?
Mr. Cuccinelli. So, we didn't decide----
Mr. Raskin. The gentlelady's time has expired. You can go
ahead and answer the question.
Mr. Cuccinelli [continuing]. We didn't decide to deport
anyone. We made the decision at the end of a long road that
predates me coming into my current position, and discussions
across DHS. But it was on August 7 and I was the director, so
at that point it is my decision.
One of the things that Dan Renaud testified to, from USCIS,
at the last hearing, is that, to your point, there are
tradeoffs, as you note, quite correctly, and handling 1,000 of
these cases absorbs resources, which, by the way, we are not
paid for, that would otherwise deal with approximately 2,000
naturalization cases. Now we did more naturalizations last year
than the whole decade. Nonetheless, there are still more
pending, and we--I hear from many of you all, legitimately,
about concerns about backlogs in some areas. We have improved
in many areas.
But we have limited resources, and this is an undertaking
by USCIS that was and is going on, that has never been assigned
by Congress, that has never been part of a regulation, and the
authority to grant the same relief continues to exist even had
USCIS not continued to participate in the way that we now do
again.
Mr. Raskin. Thank you, Mr. Cuccinelli. The gentlelady's
time has expired.
The gentlelady from the District of Columbia, Eleanor
Holmes Norton, is recognized for her five minutes of
questioning.
Ms. Norton. I want to thank Chairman Raskin for really this
very necessary, I must say painfully necessary, hearing.
Of course, today's witnesses had not only the hearing
before, because they said they were in the midst of ongoing
discussions with DHS to resolve it, and now, of course, they
say it has been resolved, so why in the world should we come to
Congress, apparently not understanding the role of Congress,
and making sure that a matter does not reappear of this kind.
Mr. Cuccinelli, you sent a letter to Chairman Raskin, the
date was September 19, informing him that DHS Secretary
McAleenan had--and here I am quoting--``directed you USCIS to
open consideration of non-military deferred requests,'' sick
children of the kind under investigation today, ``on a
discretionary, case-by-case basis.''
Now DHS has provided the committee with a September 18 memo
from the acting secretary to you, providing the same directive.
Why was the decision made to reverse the policy on deferred
action--to defer action on a case-by-case basis, when it came
to these sick children?
Mr. Cuccinelli. That was not a change, Congresswoman
Norton. It was always case-by-case. Deferred action, by
definition, is a case-by-case consideration.
Ms. Norton. But there was a category.
Mr. Cuccinelli. No, ma'am, and there was no medical
deferred action. You sort of implied in your comment that this
was just about people seeking medical concerns, and----
Ms. Norton. Sick children. Sick children. We are interested
in the sick children.
Mr. Cuccinelli. Well, they are among--they are among those.
We also get ADHD filings, and we have filings for people who
are getting older, and that is their basis for their claim.
Ms. Norton. So, you----
Mr. Cuccinelli. So----
Ms. Norton [continuing]. So, there was no directive
whatsoever to reverse the policy to case-by-case, and we did
not understand the policy to be anything--to be case-by-case
before. So, you are telling us it has always been case-by-
case----
Mr. Cuccinelli. Yes.
Ms. Norton [continuing]. Is your testimony.
Mr. Cuccinelli. Yes.
Ms. Norton. Obviously, you have to look at every case, but
we are looking at the category of sick children. I want to--I
am asking you because of a decision that directly conflicts
with the recommendation your agency reportedly prepared for the
acting Secretary just 10 days prior to reversal. And I am
referring to a memo that was apparently prepared by your policy
and strategy chief, for a September 9 meeting with Secretary
McAleenan.
You were selected to lead that meeting. Are you familiar
with that memo?
Mr. Cuccinelli. I don't have it memorized but I am familiar
with what you are referring to.
Ms. Norton. The USCIS has not produced that memo for us,
but the press reports indicated that the memo recommended that
the Secretary revoke USCIS authority to grant requests for
deferred action. Reportedly it said, in here--here is the quote
from the memo--``runs counters to the President's agenda to
enforce our existing laws and potentially contrary to his goal
of making sure aliens are self-sufficient,'' end quote.
Mr. Cuccinelli, did you direct your policy and strategy
chief to send that memo that I just quoted from?
Mr. Cuccinelli. Well, we certainly did send a memo with
recommendations to the Secretary before he made his ultimate
decision. It included six or seven, as I recall, different
alternatives.
Ms. Norton. Did you agree with that recommendation, that
the authority of USCIS to grant deferred action requests should
be revoked? Particularly I am interested, even as to these sick
children.
Mr. Cuccinelli. It was a broader comment that, with the
breakup of INS, this authority was appropriate for the
prosecutorial arms of the Department of Homeland Security.
Ms. Norton. So, you did not think that, even with respect
to sick children?
Mr. Cuccinelli. Not--and not appropriate for USCIS. So, it
wasn't--we didn't--it wasn't just related to this category.
And, of course, you mentioned sick children, which I, and I am
sure everyone else at USCIS are very sympathetic to, but that
is a category. That is exactly the kind of thing we would look
for in legislation as a category. We do not have the power or
authority to create a categorical grant of a benefit.
Ms. Norton. Mr. Chairman, I just want to indicate that, of
course, there is administrative authority to create categories,
but if they need legislation maybe we need to tell them what
they already know.
I thank you very much, Mr. Chairman.
Mr. Raskin. The gentlelady yields back, and perhaps you
could pursue this with Ms. Norton, who is the chair of the EOC,
so she knows administrative law and policy very well. But it is
an interesting conversation.
Let's see. We come now to Mr. DeSaulnier. He recognized for
five minutes of his questioning.
Mr. DeSaulnier. Thank you, Mr. Chairman. Mr. Cuccinelli, it
is a little difficult for me to sit here and listen to you say
it is the Congress' responsibility, when this Administration
has, and the President has publicly said that the second
article of the Constitution tells--gives him the authority to
do whatever he wants. And the amount of discretion that you
have tried to--the Administration, I should say--in this field,
have been challenged in court. The courts have so far upheld
things like funding of the border wall, separation of children.
So, you are an attorney. I assume you believe in
precedence. Deferred action started in the early 1970's, I was
told, in the Nixon administration. There have been iterations
all along, allowing for discretion, administrative discretion.
And now suddenly you say the Congress needs to act.
I would like--as I said at the last hearing--the historical
perspective, at least in the last five sessions, Senate Bill
744, the so-called Gang of Eight bill, four Republicans, four
Democrats, passed out of the House with bipartisan support, led
by Senators Schumer and Durbin and McCain and Rubio. Then it
got over here and we are told now, through articles in the
press and interviews by Mr. Bannon, that he and others went to
elements of the Republican caucus, and I am not privy to this,
but argued that that bill should never come up, because it was
a good wedge issue for politics. So, it never came up.
Recently, last session, Will Hurd, a very well-respected
Republican member, and Pete Aguilar, introduced a very similar
bill. Again, the speaker never brought it up.
So, any member is free to put a piece of legislation in and
let the public see what it is, and I would encourage my
colleagues on the other side to do that, and I would be happy
to work with them. But this context that it is everyone's fault
defies what we have been told in the press, about the dynamics
in the other caucus.
So, having said that, I want to turn my attention
specifically to one case. You have talked about process, and
you have been very dispassionate about it. Mr. Renaud, who was
here last time, in the case of Isabel Bueso, who has become--
the family has become dear friends--they came here legally, by
the way. They were here legally, under a tourist visa. They
were invited to the United States under a Federal program, to
be part of a medical trial that has kept her alive.
She was seven years old when she came here from Guatemala.
She is now 24. Her doctor, a very well-respected doctor at the
University of California at San Francisco children's facility
in Oakland, says if she goes back to Guatemala she will die,
because she can't get the weekly treatment she gets.
So, you said all of these people were here legally. In this
case, at least, that is not the truth. Now maybe we can argue
some of the parameters of that, but I want to read the letter
that she got, as I understand it, at your direction from the
field office director in San Francisco.
``Dear Ms. Bueso, thank you for the request for deferred
action for U.S. Citizenship and Immigration Services field
offices. No longer considered deferred action request, except
those made according to the U.S. Department of Homeland
Security policies for certain military members. The evidence of
record shows that when you submitted your request you were
lawfully present in the United States,'' so even your
department recognizes, contrary to your earlier comments, that
she was here legally. ``Your period of authorized stay has
expired. You are not authorized to remain in the United States.
If you fail to depart the United States within 33 days of the
date of this letter, USCIS may issue a notice to appear and
commence removal proceedings against you in the immigration
court.''
So Ms. Bueso, she was asked at the last meeting how did she
take this when she received this letter. She was at the
hospital, receiving treatment, her mom gave her the letter, and
she told us that she vomited, that she was so upset they had to
take----
So, how can you, as dispassionately as you describe this,
Ms. Renaud said--I am not finished, and there is a process
here, and it is Congress' process--he said, Mr. Grothman, and
he wouldn't answer my questions, but questions of Mr. Grothman,
he said, ``Oh, there would have been a file. We would have
known about her. We would have pulled the file and that should
have gone up the chain of command.'' So, did you ever hear
about Isabel Bueso before you made this direction?
Mr. Cuccinelli. Before this was decided? No, sir.
Mr. DeSaulnier. Did you ever think of the consequences for
people like her? Did you ever think that with all the other
things you have to do--and I respect that, and I also respect
the fact that Congress needs to come together. But you still
have consequences, and as the record shows, multiple
administrations--and she was--she, in her case, was approved
for deferred action by your administration. So, all of a sudden
things changed. She is here, she is under a program, she is
saving people's lives, Americans' lives and others, under a
much-respected American Federal Government program, and then
she gets this letter. You are responsible for that. Would you
care to respond?
Mr. Cuccinelli. When we withdrew on August 7 from granting
affirmative requests for deferred action, we knew that that
authority continued to exist, and anyone who would have
received such a letter could have or would have been in the
process where they could also get it from a more appropriate
source other than us.
And as Mr. Renaud, who you referenced, also said that day,
the adjudicator who would have been dealing with a particular
case, I believe is what Mr. Renaud was referring to, would have
known about it. That doesn't mean that all however many hundred
cases are all known at any given time by a regional director or
the head of field operations or myself, at any given time. And
usually only a small portion of them are ever learned about.
Mr. Raskin. The gentleman's time has expired, and I am
going to recognize Mr. Cloud now. He has just arrived.
Mr. Cloud. Thank you, Chairman. I apologize for tardiness.
I have been in the SCIF. I would like to yield time to Mr. Roy.
Mr. Roy. I thank my friend from friend from Texas. I would
have been in the SCIF, but we have had competing circumstances
here. So, I would just ask a couple quick questions. Mr.
Cuccinelli, I have heard a few of my colleagues and other side
of the aisle, particularly my colleague from New York, talk
about benefits. Can you clarify for the record here whether or
not there is or is not a benefit being conferred, or are we
talking about, in essence, a discretion, a prosecutorial
discretion, choice, as to how we handle these cases?
Mr. Cuccinelli. Well, deferred action is a prosecutorial
discretion.
Mr. Roy. Right.
Mr. Cuccinelli. And we are not a prosecuting agency. The
closest thing to that is simply issuing an NTA that starts a
process that puts you into the prosecutorial process. We do not
participate in that. That is where deferred action has
historically existed and been appropriate, and, frankly, it is
inherent in that authority. It is not inherent in our authority
at USCIS.
Mr. Roy. Right. Also, you touched on this a little bit ago,
the cost of adjudicating DACA applications, applications like
we are talking about here, these deferred actions, not just
DACA and DAPA, but these deferred action cases, the cost of
adjudicating those, and what that means in terms of diverting
resources from naturalization applications. You mentioned that
before. Can you reiterate how important that is in the
decision-making in a world of limited resources?
Mr. Cuccinelli. Yes, and I didn't mean to suggest that the
people doing this would automatically spend 100 percent of that
time on naturalizations.
Mr. Roy. Right.
Mr. Cuccinelli. I was just trying to give the subcommittee
a point of reference. And the Congresswoman correctly alluded
to the fact that there are tradeoffs. If we are doing this, we
are not doing something else. And we, like any other agency,
struggle to keep up with our workload, but unlike most agencies
of the Federal Government, we are 96-plus percent fee funded by
part of the immigrant community we serve, and we have to
operate on what amounts to a balanced budget function year to
year. So, we don't have the opportunity to come financially
flexed to absorb more work that hasn't been assigned by
Congress or by law or regulation in some way.
Mr. Roy. One more clarifying question, and then I want to
yield back to my colleague from Texas. One of my colleagues
referenced something about people who are here legally getting
wrapped into this, and I just want to clarify for the record
that that is not the case, correct? I mean, when we go back to
the letter and question in August, all that has been done, all
that was attempting to be done, was noticing folks who were
here who did not have status.
Mr. Cuccinelli. Right.
Mr. Roy. And then Congress has not produced a status for
you to give, that this was a letter clarifying their status.
Mr. Cuccinelli. That is right. And just understand, you
could have a situation where someone is coming back for a
repeat deferred action request, and they do it within the two-
year time period that is traditionally, though there is no
requirement that it be two years, granted. It can also be the
duration of treatment if we can identify that. And at that
point in time, they will at least be under the then-existing
deferred action grant.
Mr. Roy. OK.
Mr. Cuccinelli. So, you know, however you would like to
phrase that.
Mr. Roy. I would yield to my colleague from Texas.
Mr. Cloud. Thank you. I only have about one minute left,
but could you tell me what law authorizes USCIS to grant
deferred action to any immigrant who is here illegally?
Mr. Cuccinelli. Well, there is no specific law that does
that. This is a derived authority granted to the Secretary for
use specifically in case-by-case circumstances that came when
INS was broken up and, you know----
Mr. Cloud. So, to be clear, the USCIS does not have a
formally established medical deferred action program? Is that
correct?
Mr. Cuccinelli. Absolutely not, never has and it is never
existed in the Department of Homeland Security or its
predecessor, INS, as far as I know.
Mr. Cloud. And would you say that it is being treated as if
it were a formally established program?
Mr. Cuccinelli. Certainly a lot of the discussion sort of
assumes a program that a lot of people use the medical deferred
action title for. And, you know, there are other reasons people
request deferred action other than medical. They are perfectly
good human reasons, sympathetic reasons why we are talking
about the medical, but other requests are made as well.
Mr. Cloud. OK. And how many requests for medical
departments do you receive each year?
Mr. Cuccinelli. If you count not just the requester, but
family members who might be requesting to stay to be with
another family member for medical reasons, probably in the 500,
to 600, to 700 range.
Mr. Cloud. And do you feel you have to appropriately deal--
--
Mr. Cuccinelli. Well, I mean, we can do the work, but then
we are not doing other work that is legally assigned. I mean,
that is the tradeoff.
Mr. Cloud. Thank you, Chair.
Mr. Raskin. Thank you very much, Mr. Cloud. OK. We are
going to do one other round just to clean up some questions
that are lingering and any member who would like to do a few
more. I am going to start with the gentlelady from
Massachusetts, Ms. Pressley. You are recognized for five
minutes.
Ms. Pressley. Thank you, Mr. Chairman. And, again, our
forever chairman, Elijah Cummings, reminded us that the charge
of this committee is to be in efficient and effective pursuit
of the truth. So, I am encouraged that today we made some
progress in that regard, and I want to thank you under oath for
your honesty, Mr. Cuccinelli, in taking responsibility for that
decision to reverse the policy. I want to ask you, it was
previously mentioned on the record that your Agency had done
analysis to ascertain what would be the impact of such an
abrupt policy change. Do you believe that your Agency did
enough analysis to assess that impact?
Mr. Cuccinelli. I am sorry if I was unclear earlier. We
didn't do any separate studies, for instance, like we might
when preparing a regulation or something. It was an internal
discussion, not what I would characterize as a study.
Ms. Pressley. Well, given that it was an abrupt policy that
stood to impact, quite literally, the lives of critically ill
children, in hindsight, do you think that you should have done
some analysis?
Mr. Cuccinelli. Well, I do think if in the ``I had it to do
over again category'' that I would not have applied it to
people then pending, if for no other reason than to ease the
information out and to not surprise them with a change in
circumstances. That would be the main thing I would do
differently.
Ms. Pressley. All right. Mr. Cuccinelli, it has been widely
reported that the Office of Legal Counsel at the Department of
Justice determined that you were not eligible to serve as
acting secretary of Homeland Security under the Vacancies
Reform Act and the Homeland Security Act. It has also been
reported that the director of the Presidential Personnel Office
at the White House has accepted this decision and briefed the
President accordingly. Do you accept the decision of the
Department of Justice and the President Personnel Office that
you are ineligible to serve as acting secretary?
Mr. Cuccinelli. I am not privy to anything you just
described, and so I cannot answer that question.
Ms. Pressley. Well, it is public record, but, you know,
just could you give me your visceral response?
Mr. Cuccinelli. As you may know, my last government post
was Virginia state government, and I am no expert. I know areas
of the law very well, but I don't know them all, and one I
don't know very well is Federal employment law, including
things like the Vacancies Act and so forth. And I have not
studied it or looked at it.
Ms. Pressley. Sure, but, again, the Department of Justice
and the Presidential Personnel Office have ruled that you are
ineligible to serve as acting secretary. So, if asked to serve
contrary to the law, will you decline?
Mr. Cuccinelli. I would not do anything contrary to the
law. If I understood something to be contrary to the law, I
wouldn't do it.
Ms. Pressley. All right. Very good. If President Trump
chooses either of you to replace Acting Secretary McAleenan,
will you commit to keeping deferred action protections in place
at USCIS? And this is for both Mr. Cuccinelli and Mr. Albence.
Mr. Cuccinelli. I don't think it is appropriate to comment
forward like that. I told you just here what I would
characterize, I will call it a mistake because it was, to apply
this retroactively in particular. I do think the underlying
philosophy was correct, and I also understand that deferred
action that remains available for all the people even had the
USCIS policy going forward. But I cannot tell you going forward
what I would advise some other secretary to do or what they
would do, or even if I were the secretary.
Ms. Pressley. Well, that is disappointing because this is--
--
Mr. Cuccinelli. I understand, ma'am.
Ms. Pressley. Mr. Cuccinelli, respectfully, you have
accepted responsibility for making this egregious policy
reversal. You have also expressed regret, and just now you use
the word ``mistake.'' So, I am not sure why it is challenging
for you to just offer if you are the acting secretary, would
you keep the deferred action protections in place at USCIS.
Mr. Cuccinelli. I don't expect to see any change regardless
of who the secretary is unless the program itself changes
dramatically.
Ms. Pressley. Reclaiming my time. Mr. Albence, your
response?
Mr. Albence. I mean, first, I don't think there is any
reason to speculate that I might be the acting secretary
because I don't see that happening.
Ms. Pressley. Would you keep the policy in place, sir? Yes
or no.
Mr. Albence. I would certainly look at any decision going
forward. I support the decision that acting secretary McAleenan
made.
Ms. Pressley. Reclaiming my time. In closing, I just want
to remind my colleagues here today to not lose sight of why we
are here, the families and their critically ill children, whose
lives are on the line. We have talked a lot about process, but
this isn't about process. It is about people, and we should
never forget that. Thank you, and I yield.
Mr. Raskin. The gentlelady yields back. Thank you for your
comments. Mr. Roy, anything? The gentleman from Texas, Mr.
Cloud, is recognized for five minutes.
Mr. Cloud. Thank you, Chairman. Mr. Cuccinelli, you started
to get into the lack of resources to do what you are legally
mandated to do. Could you speak to that?
Mr. Cuccinelli. Wow, I could use a lot more than five
minutes on that, Congressman. You know, I will start with what
I think is the highest-profile backlog we have, which I would
say is accurately characterized as a backlog, and that is
asylum cases. Over half of them are over two years old, and I
am referring to affirmative asylum cases. There are two ways to
claim asylum. The Department of Justice, if they were here,
would be talking about defensive asylum claims in immigration
proceedings. We deal with affirmative asylum claims. We have
about 340,000 cases pending. As soon as I arrived, I began the
work to plan and execute, and we are in the middle of
executing, a massive hiring campaign for asylum officers to
start attacking that backlog more effectively.
The main problem in attacking that backlog effectively is
the crisis at the border. We broke records again for credible
fear interviews last year, just to use one example, reasonable
fear interviews associated with the MPP Program. The same
people are doing that work, and none of what I just described
to you, Congressman, is paid for. None of it. So, when we
construct our fees, we have to build into those things what we
do charge for, the cost of the things that we don't charge for,
typically humanitarian work of a variety of forms.
Mr. Cloud. OK. You mentioned that this program is not
formally established. Could you speak to what the process for
formally establishing it would be? Who is----
Mr. Cuccinelli. Well, I mean, really the only avenue is
legislation. This authority, as I said, was around in INS days,
and that was when prosecutorial authority in a region was
residing in the same person who was responsible for all of our
visa work, the benefits that I was talking with the
Congresswoman about earlier. Within the division of INS, those
authorities were divided, but it appears, looking back, I
wouldn't even call it a solution. The almost knee-jerk reaction
was just to assign the same authority to all three agencies,
even though we don't have prosecutorial responsibilities.
Mr. Cloud. Right. Since USCIS is using your own discretion
to provide deferred action, can you speak to some of the common
illnesses that are normally granted deferred action for medical
treatment?
Mr. Cuccinelli. I am sorry, the common what?
Mr. Cloud. Some of the common medical illnesses that you
see that are granted.
Mr. Cuccinelli. So, I have to say my information is
anecdotal. Obviously we have been talking about this, as you
all have, over the course of the last several months. So, I
pulled a selection of cases, for instance, just to review at
random to see what the cases look like, so to get an idea of
what adjudicators' workload was associated with these and what
they had to do and contend with, and it runs the gamut. I mean,
it runs from the kind of cancer and cystic fibrosis we have
heard about today.
Obviously among the most sympathetic types of situations
you can imagine, there are two things that look to me, even
though I don't decide these cases, rather patently abusive. I
use the ADHD example. Really? Just not in the same league. You
know, people claiming getting older. And I also mentioned
earlier a good number of them are not medical. They are other
claims as to reasons they want to stay. And candidly, the cases
we talked about here, even though we can't decide a case
sitting at this table, are the ones that you would think are
most likely to be found by a career employee, and that is who
decides these, to use the Secretary's language, compelling
facts and circumstances. But I can't sit here and prejudge them
even favorably, even though I am sympathetic to them.
Mr. Cloud. And you mentioned that really when this comes
down to it, it is our job to manage the resources and give you
direction on them. Could you explain what is the best thing
that we could do when it comes to what your job is? You talk
about the limited resources to do all these things.
Mr. Raskin. The gentleman's time has expired. Please answer
the question.
Mr. Cuccinelli. OK. I mean, don't make us guess, you know.
Congresswoman Norton referenced category of sick children, and
she said ``category.'' If it is a category, you all should be
assigning it to us. Of course the Supreme Court is going to
take up DACA on November 12, and it follows the pattern of the
DAPA that Ranking Member Roy mentioned. Can the executive
branch use these inherent authorities that Congress hasn't
given any direction on to create categorical grants of
benefits? It is the position of this Administration that we
cannot do that.
We will use the authorities we do have that are
discretionary on a case-by-case basis. Nonetheless, at the
beginning of this process on August 7, it was understood that
the authority to grant this relief would continue to exist at a
different point in the process, and I know people don't
necessarily want to. They would rather go to USCIS than ICE.
But the fact of the matter is that that is the appropriate and
historically appropriate, getting outside the Federal
Government, place for prosecutorial discretion. And that is
with a prosecutorial agency.
Mr. Raskin. Thank you very much. I am going to recognize
Mr. DeSaulnier for five minutes of further questioning.
Mr. DeSaulnier. Thank you, Mr. Chairman. You have mentioned
waiting for legislative action, even though it is clear you
have the discretion, or the precedent is there for discretion.
So, what I would suggest to you, and I would like a response, I
have a private bill for Isabel. It is in Judiciary right now.
We are looking for support. We have had comments from legal
experts. If there ever was an example of a need for a private
bill, this is it.
So, I would ask in the interim for this specific case, that
as she goes through, and I am being told by her attorney some
of the questions are different than the last 4 times she went
through this, that you would work with us because I assume you
don't want to be back in the position where she is on the cover
of national magazines, she is in the New York Times as example,
even though she may be a little bit different. So, that is one.
And then Ms. Pressley and I are working with the committee,
are looking for Republicans to work with, to tailor a bill for
this group of people that would help them. And in a normal
functioning relationship between both parties in Congress and
the Administration, we would be trying to work on something
knowing that they would be give and take. So, within that
context, I hope and I would like some kind of response from
you, that you have the discretion to at least work with us to
see if we can provide legislative remedy for this group of
people, and specifically for this person.
Mr. Cuccinelli. Well, I don't necessarily agree with your
initial comment about precedent and our authority. We will
absolutely work with you, and I want to make it very clear. We
don't even have to agree with what you are doing to be willing
to help you do it correctly and craft it correctly. We will do
that and bring subject matter experts to help you do that. We
would be glad to do that.
Mr. DeSaulnier. Well, I am grateful for the help. It sounds
a little patronizing, but I will accept that.
Mr. Cuccinelli. Well, no, I mean----
Mr. DeSaulnier. We will give you help in return.
Mr. Cuccinelli [continuing]. I say it that way simply
because the nature of some of the discussions, you know, people
can have the opposite impression. It is not intended to be
patronizing at all. It is intended to, you know, to point out
that is a function we----
Mr. DeSaulnier. Accepted. Accepted. That was my Irish sense
of humor. So, in the process of how all this developed, you
issued what came to be the letter. You were going to eliminate
deferred actions. There was this big public response. We had a,
I thought, very bipartisan hearing here. And then there was
discussion within the Administration about what you should do
about it. There is a memo that the press has got a hold of that
was given to you by your policy director suggesting that you
shouldn't backtrack, that you should keep it as you originally
were going to do. Is that true? And did you have an opinion at
that time? And clearly at that time--that was after our
hearing--you knew about Isabel and some of these other cases.
So, did you support the Acting Secretary's decision to change
the policy on deferred action?
Mr. Cuccinelli. Yes, I thought it was particularly critical
to get the question decided. And as I view our role when
advising something like that, we gave him a wide variety of
options, presented those to him. With respect to my earlier
comments, to Congresswoman Pressley where I noted that I did
think it was a mistake to implement this on a retroactive
basis, I freely concede that. But philosophically, it is
appropriate or more appropriate for this authority to rest with
the prosecutorial element of the Department of Homeland
Security, which is not USCIS, and that these folks would still,
while under different circumstances, be able to avail
themselves of that.
Mr. DeSaulnier. OK. So, in this specific case, and this is
for both of you, they are in limbo. They are in a legal
bureaucratic limbo, the boyos. Dad keeps working. And by the
way, there was no public charge here. They paid for their
insurance to be part of the program. They are taxpayers. They
are beneficial to the economy and the community. Isabel went
and got a degree with honors from Cal State East Bay. So, how
do we work to help them through this process until we get to
the point where either she can get her deferred action in this
bureaucratic limbo?
Mr. Cuccinelli. Well, we have, as you know, reopened these
cases. And I speak to timelines for particular cases, but I do
know that we have commenced deciding them. I mean, we are
getting through some of the work. We have seen an uptick in
filings, I would note for you, since this public discussion
began, and which that is behind the boyos in that they were
already in the pipeline, if you will, so theirs would not be
affected by that uptick. But I can't speak to exactly how long
it would take for each of those cases to be decided. I can
check it separately when we leave here----
Mr. DeSaulnier. In the idea of working together, and I
would be willing to help you in this regard, not being
patronizing hopefully, they are in this situation. It is a
practical situation. If we could work to assure them they were
going to have their due process as you currently outline it.
Mr. Cuccinelli. Right.
Mr. DeSaulnier. And if there is a gap in there, we are
going to work through until the decision-making. And then if we
could work on legislation that would be permanently correct, at
least for this group of people or for her, that is what I would
like to hear.
Mr. Cuccinelli. Yes, we would be glad to do each one of
those things.
Mr. DeSaulnier. All right. Appreciate it. Yield back, Mr.
Chairman.
Mr. Raskin. Thank you very much. The gentleman from
Kentucky, Mr. Massie, is recognized for five minutes.
Mr. Massie. Thank you, Mr. Chairman, and thank you for
having a hearing on this important topic. I want to thank the
witnesses for showing up and dispelling the misinformation that
has been out in the press and the false narratives that we have
heard for the last several weeks and months.
Before I yield time to the ranking member here, I just want
to lament that the full committee, this committee is right now
simultaneously conducting a bogus impeachment process three
stories underground beneath the Capitol Visitor Center in a
closed room. You have to go through three doors to get there,
and a lot of my colleagues who would like to be here today are
down there, both on the Democratic side and the Republican
side. So, I just want to say I think it is a shame that that is
simultaneously happening. Not just that it is happening out of
the view and sight and sound of the American public, but that
it is happening at the same time as this important hearing.
With that, I would like to yield the balance of my time to the
ranking member, Chip Roy.
Mr. Roy. I thank my friend from Kentucky. I have made that
similar point before you were able to join, and I will make it
again. I agree with you. We shouldn't be having these things
concurrently. This is too important an issue, and this has been
happening on a regular basis. Last week I had to do the same
thing on a different hearing where I was unable to participate
in the depositions that are going on on this important matter
in a way that, as I will reiterate, it is very difficult to get
transcripts, even for those of us on the committee.
You are trying to figure out how to go get information for
a thing that is occurring right now that I can't physically be
present for, and now I want to go try to figure out what I
missed, and I can't do it in an easy fashion. And any of my
colleagues who aren't on the committee can't do it. Now again,
some of this may get remedied tomorrow. Not sure. But I happen
to believe that the House Rules indicate that the records of
this body are the possession of each and every member, and we
are supposed to be able to have access to those records and
have an open process to be able to go see this information. And
it is, I think, critically important for the American people to
know that this is what has been going on and that we can't have
the kind of full debate that we ought to have.
I do want to just come back one thing, and at a little bit
of risk of repetition, but it is, I think, really important
because I appreciated some of the comments from my friend and
colleague from California that maybe we could work with you all
and try to figure out how to solve any of the issues here from
a policy perspective as a legislative body, act as a Congress
to solve the issue.
In carrying out the action that Mr. Cuccinelli carried out,
and you can jump in here because I don't speak for you, but I
will characterize it in this way. One might say the letter
could have been written a different way or maybe we could have
carried it out a different way, and this is what has been
discussed. And Mr. Cuccinelli has said that, you know, maybe he
hoped to have done it differently. But it has highlighted an
issue, an issue that has been lingering where my colleague use
the word ``limbo.'' Even with the letter from USCIS, you are in
limbo. There is status given, right?
And, Mr. Cuccinelli, am I correct about that? In other
words, USCIS gives a letter that basically says, here, you got
a letter. Hey, we, USCIS, who have no authority to say whether
or not ICE is going to exercise their prosecutorial discretion,
we are giving you a letter that sort of says you might be okay
for a couple of years. Is that roughly correct?
Mr. Cuccinelli. Roughly, yes.
Mr. Roy. And can you cleanup my roughness?
Mr. Cuccinelli. I mean, that deferred action can be revoked
at any time.
Mr. Roy. Right.
Mr. Cuccinelli. And in circumstances where there might be a
reason for someone to be in removal proceedings, ICE and USCIS
talk about those individual cases. They are rare, but they do
happen, and we coordinate our efforts.
Mr. Roy. And, again, going back to the beginning, was
anyone being targeted, any one of these families in question,
targeted for removal after said letter went out?
Mr. Cuccinelli. No.
Mr. Roy. So, putting aside whatever----
Mr. Cuccinelli. Absolutely not, no.
Mr. Roy. So, acknowledging the concerns of the families
receiving the letters, I think everyone acknowledges the
concern of how that was received. And we are all guilty of
doing a lot of stuff in a fast-paced environment, like getting
out and executing, and then going well, maybe we could have
executed that better. But the question becomes the letters go
out as a process matter. None of these families were being
targeted for removal to the best of your knowledge?
Mr. Cuccinelli. Well, not to the best of my knowledge, no.
Mr. DeSaulnier. Would the gentleman----
Mr. Roy. Mr. Albence, to the best of your knowledge?
Mr. Albence. No, I mean, we wouldn't even know they
existed. Even that grant of deferred action is not something
that would have come to our attention when USCIC does that, so
we don't even know these people exist.
Mr. Roy. OK.
Mr. DeSaulnier. Would the gentleman yield just for a
second?
Mr. Roy. I would be happy to.
Mr. DeSaulnier. I appreciate the tone. I think the caveat
would be precedent. We have heard there is a long precedent in
the evolution of deferred action. And in this case, this
family, they have been approved four times before, including by
this Administration. So, I am agreeing with you, but from their
perspective, the precedent was what it was.
Mr. Cuccinelli. I see. May I address that?
Mr. Roy. Yes, sir.
Mr. Cuccinelli. So, now understanding what you may have
meant by ``precedent'' a little better, Congressman, it is
important to realize each review is a fresh review. And
particularly in medical circumstances, those evolve, of course,
and those would be reviewed anew each time. So, perhaps I
misunderstood your use of the word ``precedent'' previously.
Mr. DeSaulnier. Maybe we just disagree on perspective. From
their perspective, previously their attorneys had said you do
this and this is the likely outcome. So, you do need to go
through the process.
Mr. Cuccinelli. Right.
Mr. DeSaulnier. What changed was the unilateral decision to
get rid of all deferred action, so that changed the precedent
is my point.
Mr. Cuccinelli. OK. Understood. Now I understand what you
mean better.
Mr. Roy. And the last point I will make, and I am over my
time, but then I won't try to take any additional time after
Mr. Massie----
Mr. Raskin. Please take your time, Mr. Roy.
Mr. Roy. It would just be to say the precedent we are
talking about is a, in my view, flawed precedent. In other
words, it is a kind of patched-together circumstance to deal
with a population who is inherently in limbo, and it is not
affirmatively set out, and so I get a little frustrated. Your
tone, this has been great. Some, nameless they may be, come
here to bluster about the evils of what has transpired here and
to try to impute to Mr. Cuccinelli or to any other members of
DHS a desire to create harm for people as opposed to have a
system where the rule of law means something.
Mr. Cuccinelli. May I suggest sort of a rhetorical
question?
Mr. Raskin. By all means.
Mr. Cuccinelli. Just a thought exercise. So, an obvious way
to think about this isn't case-by-case. It is asking the
question for each person, where do you draw the line? How do
you do that?
Mr. Raskin. Thank you, Mr. Cuccinelli for that because that
goes right to my closing thoughts here, and I want to start by
thanking all the members of the committee for a very productive
conversation. I want to thank both of you for participating,
for educating us and participating in what, I think, has been a
constructive process. I want to thank you particularly, Mr.
Cuccinelli, for expressing regret about the mistake that was
made in what you said was the retroactive application of a
shift in the presumption, I think, and I thank you for that.
I do want to pose a question about that though, and
obviously it caused great anguish among the families that were
affected, and I assume that moved you. I know you to be a man
with a heart, and so you were moved by what you saw. And, you
know, this may have looked like it was sort of easy pickings in
terms of going over a whole series of administrative policies
where, you know, one could just tighten the leash in some way,
but suddenly it caused a major furor because of the anguish and
pain that was effected for the families.
But what does that mean about going forward given that, you
know, the compelling facts and circumstances, standard that you
are operating under? You said there are certain things that
look clear. We apparently all have a consensus about cancer,
cystic fibrosis, leukemia, very serious diseases that we have
heard about from people coming forward. On the other end, I
think you said--this was almost humorous--aging, that somebody
was actually granted deferred action because they were aging?
Mr. Cuccinelli. Oh, I didn't say they were granted.
Mr. Raskin. Oh, I see. OK.
Mr. Cuccinelli. I just said we see those applications.
Mr. Raskin. But would it be your intention, because I did
look at the question of where your authority comes from. It is
not a totally made-up of authority. I think that in the June
2003 delegation to the Bureau of Citizenship and Immigration
Services from the Secretary of Homeland Security, P was the
authority to grant voluntary departure and deferred action.
Mr. Cuccinelli. Yes.
Mr. Raskin. So, you do have that delegation of authority.
Presumably you could operate it either on kind of a more
arbitrary case-by-case, everybody make up their own rule
standard, or what it seems like you are trending toward now,
which is to develop certain categories that would strike
everybody as commonsensical medical compelling need, versus,
you know, people want to be here to age in place, you know, in
the United States. Is that you are thinking, that you would try
to develop----
Mr. Cuccinelli. So----
Mr. Raskin [continuing]. Some directives for the people who
actually make these decisions?
Mr. Cuccinelli. OK. So, a couple of points, Mr. Chairman.
First of all, the authority site there in the Homeland Security
Act is how you trace this back statutorily. It goes to the
secretary, but the purpose of deferred action is it is
inherently a prosecutorial discretion, thus my descriptions
here today. So, and what you point to in the statute doesn't
provide, other than case-by-case consideration, doesn't provide
guidance or categories.
Mr. Raskin. OK. Can I pause you there?
Mr. Cuccinelli. Yes.
Mr. Raskin. And then maybe it is a question for Mr.
Albence. Would you pursue deportation of people who had been
granted deferred action for a medical purpose? So, do you know
of any cases where that has happened, and do you have any
intention in the future of doing that?
Mr. Albence. I am not aware of any cases in which that
would happen.
Mr. Raskin. OK. Fair enough.
Mr. Albence. Excuse me. I am not aware of any case in which
that has happened.
Mr. Raskin. Got you.
Mr. Albence. I will not say that there is somebody that
could have been granted medical deferred action, gets involved
in some sort of----
Mr. Raskin. I got you. Somebody could commit a crime while
they were here on deferred action for medical reasons.
Mr. Albence. Exactly.
Mr. Raskin. I got you for that. So, but is it your thought,
Mr. Cuccinelli, that you would try to elaborate and specify
what some of these circumstances are?
Mr. Cuccinelli. No, sir. To be clear, from the acting
secretary, Secretary McAleenan, it is to continue it as a case-
by-case. What we do internally is try, and I heard some
comments a little different than this, is to maintain
consistency. And the way we do that is that the 4 people who
are regional directors, sort of at the top of decision chains
in the field, talk together about these cases periodically as
they feel the need--those are not conversations I participate
in--about cases to make sure that similarly situated people end
up with similar outcomes, whether it is grants or denials. But
that is just for consistency. It doesn't introduce any
standards or measuring stick, if you will, to provide guidance
as to how these may come out. We don't have any basis to do
that.
Mr. Raskin. OK. All right. Well, we might have a difference
of opinion about that, whether your authority would include
that.
Mr. Cuccinelli. I understand.
Mr. Raskin. The only point I would make, and I appreciate
what you just said about at least trying to develop
consistency. But the point I would make is just when we say
that there is a case-by-case method of decision-making, that
just means that each of the facts is treated on their own their
own presentation, but there still need to be rules and
standards applied for the decisionmaker to decide how the
decision is to be made.
Mr. Cuccinelli. And I think that is the nub, you know.
Mr. Raskin. Yes. Well, okay. Let me just shift to another
question in my role as chair of the subcommittee. We have got
to just get on top of the discovery here, which I think we
should be able to complete in relative short order. And again,
we feel strongly about this in general because Congress as the
lawmaking branch of government has the authority to receive any
information we want in order to make the laws that we want to
make. You properly chide us for not having comprehensively
overhauled immigration law, but we can only do it if we get the
information about everything that we need.
Mr. Cuccinelli. I can provide you an update on that.
Mr. Raskin. OK. If you could that would be great, and
specifically with respect to a couple of things. One is the
memo that was written on September 9 from Kathy Kovarik, which
was announced to us, but we have never seen it. So, that is one
thing that I know we would very much like to get. That was one
of the things that Chairman Cummings signed the subpoena for.
The other thing is that you received from Mr. McAleenan on
September 18 his directives with respect to this matter. And he
asked you for a memo 30 days after the date, and that passed a
week or two ago, discussing your implementation of these
directives. I don't know whether you brought that with you or
you have----
Mr. Cuccinelli. I did not. That was just a simple update,
but that is what----
Mr. Raskin. So, if we could have that, that would be
terrific just because we don't have any update about anything
that has happened at this point.
Mr. Cuccinelli. So, to be clear, the document request, we
are still in litigation. The plaintiffs have not dropped their
cases.
Mr. Raskin. Oh.
Mr. Cuccinelli. So, our----
Mr. Raskin. Of course, but that has nothing to do with
Congress. I mean, the Supreme Court has been clear about that.
Mr. Cuccinelli. Well, please let me finish.
Mr. Raskin. Yes.
Mr. Cuccinelli. What it does have to do with is we have to
review our materials to know our own position. So, we are doing
all of that gathering of documents and review now, so all of
what we can provide we certainly will.
Mr. Raskin. OK. This is one area of the law that I actually
know very well, that anyone's requirement to comply with a
congressional subpoena request for information is not stayed in
any way by virtue of the existence of other legal proceedings
or litigation, and we can get you all of the case authority on
that. So, in other words, we can't wait for cases to be
decided, appealed, removed, you know, and so on.
Mr. Cuccinelli. I didn't mean to suggest that.
Mr. Raskin. Yes.
Mr. Cuccinelli. It complicates our own review of materials
as we gather them.
Mr. Raskin. OK. Well, again, let me just restate. We would
at least like an answer from you today if you can tell us. When
will you be able to comply with the subpoena that Chairman
Cummings signed on the day that he died? It is dated, you know,
several hours before he lost his life, so I feel very strongly
about this. Do you know when you will be able to comply?
Mr. Cuccinelli. I know we are working to comply. I can't
tell you sitting here now. I would have to revisit it, and I
didn't do this this morning before I came. I would have to
revisit with the review team back in the office.
Mr. Raskin. OK. Can you tell me when you will be able to
tell me when you can comply?
Mr. Cuccinelli. Well, we can at least give you at least an
estimate by the end of today.
Mr. Raskin. OK. If you could tell us by the end of the day,
we can get on a timetable. We want and we need that
information. Mr. Albence, can you also comply with that
timetable? Could you tell us by the end of the day when you
would----
Mr. Albence. So, I can't answer that question. We provided
our material to the Department on October 20, so at this point
it is undergoing departmental review. It is outside of ICE's
hands. Obviously our material is much more limited than what
Mr. Cuccinelli has or expected to be. So, they are reviewing it
for deliberative and privileged information, and then when they
are done with that review, I am sure they will release it.
Mr. Raskin. OK. Very good. All right. Good. All right.
Well, actually, are there people with you today who can just
tell us when that would be?
Mr. Albence. No, it is with the Department. These are all
ICE people, so it is with Department general counsel, so that
would be the entity that would have to answer that question. I
could ask him and see when they think they will have it
cleared, but----
Mr. Raskin. OK. If you could get back to me.
Mr. Albence. I asked yesterday and got an ``unknown date
yet,'' so.
Mr. Raskin. OK. If you could get back to us as promptly as
possible. OK. Let's see. We have some letters for the record
that I want to admit, without objection. Let's see. We have
letters from several disability organizations, the Interfaith
Immigration Coalition and the New York Legal Assistance Group,
discussing the consequences of these policy changes for
children who benefit from deferred action. I ask unanimous
consent that these letters be entered into the hearing record.
Without objection, they will be entered.
Mr. Raskin. OK. And finally, Mr. Cuccinelli, I am seated in
Mr. Cummings' chair, and so I am mindful of his extraordinary
career and the fact that he always told us we are here to help
people. And I have got an opportunity with you here to just ask
you about one other case that I have been unable to get an
answer from the Department about, and so I wonder if you would
indulge me by just listening to this.
OK. It regards the case of an Afghan national whose name is
Muhammad Kamran, and he was a U.S. military interpreter for us
in the Afghan war. He fled Afghanistan with his family under
threat by the Taliban and was unable to seek entry to the U.S.
on a special immigrant visa, so he sought entry under
humanitarian parole. He was denied as a matter of discretion.
To the best of our knowledge, he served this country faithfully
and admirably for nearly a decade as an interpreter for U.S.
military operators, who have written letters in his support and
in his defense.
Since fleeing to Pakistan where he is still in hiding with
his family, he has been beaten up multiple times by Pakistani
police. Last week, he was arrested by the Pakistani military.
Advocates for him in the U.S. report that he has been tortured,
although he has finally been released, but he was subjected to
torture while he was being held. So, as the result of
bipartisan advocacy, we have members on both sides of the aisle
who have been working for him. His case for humanitarian parole
was reopened, but on August 1, we were informed by you that he
was again denied on a discretionary basis with the addition of
the phrase ``lack of credibility,'' but there was no
explanation of what that meant, and we have been denied the
ability to have a classified briefing on the matter.
I am very concerned that Mr. Kamran will be killed or he
will be disappeared in Pakistan by the forces that are against
him, and the same fate may await him and his young daughters.
So, I would like it if you would be able to get clarification
for the basis of this denial. If there are real facts there
that show that he or his young children are a security risk,
then by all means, please let us know. We don't want security
risks entering the country, but this is a guy who served our
country with everything that he had, putting his life at risk.
We have Republican and Democratic members who are asking you to
take a look at it.
Would you be willing to clarify his case for us? Would you
be willing to provide a briefing for us on the status of the
Special Immigrant Visa Program as it relates to wait times for
processing and the dropoff that which has been radical of
acceptance of former interpreters who served with us in combat
zones. Would you be willing to work with us to see that there
is justice in this case?
Mr. Cuccinelli. So, with respect to the individual case, I
presume there is no privacy waiver from the individual, so I
would have to find out what I am allowed to share. You know, we
operate within privacy restrictions ourselves, but I am happy
to go determine that and turn back around and re-contact you--
--
Mr. Raskin. Please do. I mean, his advocates----
Mr. Cuccinelli [continuing]. With a result.
Mr. Raskin. Yes, his advocates are asking us to do whatever
we can to save his life from their perspective. He is someone
who served with the Afghan government and with our country
faithfully, honorably. The people who worked with him over
there are asking us to take a look at his case. We know that
there has been a dramatic drop in the numbers of interpreters
who have been admitted to the country, and if that is just part
of a general tightening of ability of people to get in, I don't
think it is fair. If there is some reason that he shouldn't be
admitted, then by all means, please show us that evidence. But
if you would be willing to meet with us or have someone from
your staff come and meet with us, then I think we would be
doing a little bit of fairness in the spirit of Chairman
Cummings.
Mr. Cuccinelli. So, let me see how much detail I am
permitted to share, and whatever the answer to that is, I will
let you know, report back.
Mr. Raskin. OK.
Mr. Cuccinelli. And then we can go from there in terms of
share what we can.
Mr. Raskin. I appreciate that. And if there is anything
else, Mr. Roy?
Mr. Roy. I will just say I thank the chairman for the last
10 or 15 minutes, 20 minutes in particular, not to say anything
about the forum, but of the back and forth and give and take
and the conversations with our colleague from California about
how to move forward. So, I appreciate that.
Mr. Raskin. And I appreciate very much the participation,
as always, of the ranking member. I understand from my staff
that he has signed a privacy waiver release, Mr. Kamran has, so
that is something that presumably we could meet about. You can
double check with your people.
Mr. Cuccinelli. That will be very significant.
Mr. Raskin. I want to thank all of the witnesses today for
your testimony. I know you have got important business to
attend to, so we thank you very much.
Without objection, all members will have five legislative
days within which to submit additional written questions for
the witness of the chair, which will be forwarded to the
witnesses for response. I ask you to please respond as quickly
as possible if anybody has any followup questions. Mr.
DeSaulnier, I want to thank you for your endurance.
The hearing is now adjourned.
[Whereupon, at 12:46 p.m., the subcommittee was adjourned.]
[all]