[Senate Hearing 109-749]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-749
 
         OVERSIGHT HEARING: U.S. REFUGEE ADMISSIONS AND POLICY

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

                                HEARING

                               before the

      SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 27, 2006

                               __________

                          Serial No. J-109-118

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Immigration, Border Security and Citizenship

                      JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                 Reed O'Connor, Majority Chief Counsel
                   Jim Flug, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    15
Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    69
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  parepared statement............................................    99

                               WITNESSES

Gavin, Rev. Kenneth, S.J., Vice Chair, Refugee Council USA, and 
  National Director, Jesuit Refugee Service/USA, Washington, D.C.    21
Horowitz, Michael J., Director, Project for Civil Justice Reform 
  and Project for International Religious Liberty, Hudson 
  Institute, Washington, D.C.....................................    18
Sauerbrey, Ellen R., Assistant Secretary, Bureau of Population, 
  Refugees and Migration, Department of State, Washington, D.C...     4
Scharfen, Jonathan R., Deputy Director, U.S. Citizenship and 
  Immigration Services, Department of Homeland Security, 
  Washington, D.C................................................     6

                         QUESTIONS AND ANSWERS

Responses of Rev. Kenneth Gavin, S.J. to questions submitted by 
  Senator Kennedy................................................    27
Responses of Michael J. Horowitz to questions submitted by 
  Senator Kennedy................................................    30
Responses of Ellen R. Sauerbrey to questions submitted by Senator 
  Kennedy........................................................    34

                       SUBMISSIONS FOR THE RECORD

Administrative proposal to resolve outstanding areas of 
  disagreement, memorandum.......................................    55
American Jewish community organization leaders, letter...........    60
Brand, Rachel L., Assistant Attorney General, Office of Legal 
  Policy, Department of Justice, Washington, D.C., statement.....    63
Faith-based community leaders and individuals, letter............    66
Gabaudan, Michel, Regional Representative for the United States 
  of America and the Caribbean, Office of the United Nations High 
  Commissioner for Refugees, Geneva, Switzerland, statement......    71
Gavin, Rev. Kenneth, S.J., Vice Chair, Refugee Council USA, and 
  National Director, Jesuit Refugee Service/USA, Washington, D.C.    78
Horowitz, Michael J., Director, Project for Civil Justice Reform 
  and Project for International Religious Liberty, Hudson 
  Institute, Washington, D.C.....................................    89
Sauerbrey, Ellen R., Assistant Secretary, Bureau of Population, 
  Refugees and Migration, Department of State, Washington, D.C...   101
Scharfen, Jonathan R., Deputy Director, U.S. Citizenship and 
  Immigration Services, Department of Homeland Security, 
  Washington, D.C................................................   106


         OVERSIGHT HEARING: U.S. REFUGEE ADMISSIONS AND POLICY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 27, 2006

                              United States Senate,
          Subcommittee on Immigration, Border Security and 
                   Citizenship, Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:59 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
Chairman of the Subcommittee, presiding.
    Present: Senators Cornyn, Brownback, and Kennedy.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Chairman Cornyn. This hearing before the Senate 
Subcommittee on Immigration, Border Security and Citizenship 
will come to order. I want to thank Chairman Specter for 
scheduling today's hearing, and, of course, I appreciate my 
Ranking Member, Senator Kennedy, for his enormous contributions 
to this hearing and on this subject.
    There is a great American tradition of providing safe haven 
for refugees, a tradition that dates back to the founding of 
our Nation. The United States accepts more refugees than any 
other country in the world. The refugee resettlement program 
advances our National interests and our democratic values. And 
let us not forget it saves lives.
    However, while the refugee ceiling remains at 70,000 the 
Government has not consistently been able to meet this 
threshold established by the President. One explanation often 
cited for the inability to meet this threshold is that 
legitimate refugees are barred because the definition of 
``terrorist activity'' is too broad. Under provisions of the 
Immigration and Nationality Act, refugees may be denied entry 
into the United States on terrorism grounds because they 
provided ``material support'' to terrorist organizations. Yet 
there are more than 10 million refugees around the world. I 
question whether the material support issue alone can account 
for the United States not achieving the capped goals. And so I 
look forward to hearing from our panelists about other 
obstacles to reaching the refugee admission, too.
    Finally, I believe it is important to examine how refugee 
assistance funds are spent by the Department of State. Many 
critics have asserted that in the past, the State Department 
has spent most of its refugee assistance funding on short-term 
needs, like food, medicine, and housing. Obviously, while these 
needs are critical, we must not lose sight of the long-term 
needs of the refugees, including education, skills development, 
and integration into the host country.
    With that, let me turn the floor over to Senator Kennedy 
for any opening statement he would like to make.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much, Senator Cornyn, for 
holding these hearings, and thank you for also your leadership 
on this Committee and on this issue. We welcome the opportunity 
to join with you in meeting with the Secretary of State 
recently and also with our panelists on that particular 
occasion. So we thank you very much for giving us a chance to 
have out in the open the refugee policy and the 
administration's position.
    The Committee has the important responsibility to analyze 
the conditions around the world affecting refugee protection 
and resettlement to help the U.S. refugee admissions program to 
respond more effectively to the challenges facing it. As the 
Chairman pointed out, each year countless refugees are forced 
to leave their countries, fleeing persecution. America has 
always been the haven for those desperate for such protections. 
At the very beginning of our history, the refugee Pilgrims, 
seeking religious freedom, landed on Plymouth Rock. Ever since, 
we have welcomed refugees. It has made us a better Nation, and 
refugees represent the best of American values. They have stood 
alone at great personal cost against hostile governments for 
fundamental principles like freedom of speech and religion. 
They have fled bombings, gunfire, torture, rape, genocide. And 
they have endured unspeakable misery and suffering.
    But they also bring with them the personal stories of hope 
and courage and triumph, and America offers them an opportunity 
for a new life, to live without fear, to go as far as their 
talent and energy allow, and we in turn are enriched by their 
presence.
    The estimated decline in the refugee population worldwide 
from 16.4 million in 2000 to 13.1 million is welcome news, but 
it is disturbing that more than 7 million refugees have been 
restricted to camps or isolated settlements for a decade or 
more--the warehousing issue. They are trapped in various places 
around the world--Burmese refugees in Thailand, Bhutanese in 
Nepal, Angolans in Zambia, Congo-Kinshasans in Namibia, 280,000 
Eritreans in the Sudan. Yet in this legislative year, which 
ends in a few days, the U.S. is expected to admit fewer than 
42,000 refugees in this fiscal year, even though the admissions 
target was set at 70,000. As a result, nearly 28,000 refugee 
slots have been wasted this year alone, and over the past 
decade the refugee admissions program has fallen behind in its 
admission goals by an average of 19,000 per year.
    The trend should not continue. It is contrary to America's 
heritage and history. It allows needless suffering of innocent 
refugees to persist. It gives an excuse to other countries to 
not do their part. Deserving refugees were available to fill 
most of these 28,000 slots. More than half slated to be filled 
by refugees who were otherwise eligible were excluded by their 
association with groups that are no threat to the United 
States. They have not been identified by the National 
Intelligence Director Negroponte or Secretary Rice or 
Counterterrorism Coordinator Crumpton as groups of concern. 
Many of the groups have common goals with the United States in 
opposing oppressive regimes, such as those in Burma and Cuba. 
Nevertheless, the administration applies the broad definition 
of ``terrorism'' to keep them out, and we are to hear today how 
the State Department and DHS intends to address this problem so 
we can admit more deserving refugees.
    There have been some positive changes in the refugee 
program, such as extending refugee admission to North Koreans 
and greater attention to stateless warehoused populations. We 
had a chance to review those at our meeting, and I commend the 
United Nations High Commissioner for Refugees and many refugee 
and humanitarian organizations for their extraordinary 
commitment to resolving these problems. I look forward to the 
testimony of the distinguished witnesses, particularly in the 
areas of funding refugee assistance and protecting Iraqi 
refugees for solutions for long-term refugees and the Darfur 
crisis. That is of special interest. And we understand--we had 
talked, I think, at the time of our meeting about some of the 
resources that were necessary to try and process some of the--
both immigration and refugees, and we understand that there 
might be some positive news about that, which hopefully we will 
hear about.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Kennedy.
    At this time we will make part of the record the opening 
statements of Senator Leahy and Senator Feingold, without 
objection.
    Our first witness is Hon. Ellen Sauerbrey, Assistant 
Secretary of the Department of State for Population, Refugees, 
and Migration. She was appointed to that position by President 
Bush on January 12, 2006. Before her appointment of Assistant 
Secretary, Ms. Sauerbrey served as U.S. Representative to the 
United Nations Commission on the Status of Women. In that 
capacity, she led the U.S. delegation to the Baltic Sea 
Conference on Women and Democracy in Estonia and has spoken at 
numerous international women's conferences.
    We also have with us Mr. Jonathan Scharfen, Deputy Director 
of U.S. Citizenship and Immigration Services at the Department 
of Homeland Security. He was appointed by Director Emilio 
Gonzalez on June 22, 2006. Before his appointment to that 
responsibility, to that job, Mr. Scharfen served in the United 
States Marine Corps and retired in August 2003 at the rank of 
Colonel following 25 years of active-duty service. Mr. Scharfen 
also previously served as Chief Counsel and Deputy Staff 
Director of the House International Relations Committee.
    I would like to ask you please to stand so I can administer 
the oath. Do both of you swear that the testimony you are about 
to give is the truth, the whole truth, and nothing but the 
truth, so help you God?
    Ms. Sauerbrey. I do.
    Mr. Scharfen. I do.
    Chairman Cornyn. Thank you very much. Please be seated.
    Let me start with Ms. Sauerbrey. We will be glad to hear 
your opening statement, please.

STATEMENT OF ELLEN R. SAUERBREY, ASSISTANT SECRETARY, BUREAU OF 
   POPULATION, REFUGEES AND MIGRATION, DEPARTMENT OF STATE, 
                        WASHINGTON, D.C.

    Ms. Sauerbrey. Thank you, Senators. I am very pleased to 
have the opportunity to participate in this afternoon's public 
hearing on the President's refugee admissions program for 2007. 
I want to tell you, I am very passionate about this program, 
and I share the passion that I heard from you. The 
administration is committed to maintaining a robust admissions 
program as an integral component of our effort to promote the 
President's freedom agenda and to champion human dignity 
globally. Though fiscal year 2006 has been a challenging year, 
there is a lot of good news to report about this very important 
humanitarian program.
    Among the best news is the fact that the worldwide 
population of refugees is indeed at its lowest level in 26 
years. By the end of 2005, the estimated refugee population 
worldwide had declined to 13 million; 8.7 million of those are 
under the care of the United Nations High Commissioner for 
Refugees, and most of the remainder is under the care of UNRA. 
Millions of Liberians, Afghans, Sudanese, Burundians, and 
others have been able to return to their homelands or have 
found permanent refuge in asylum locations.
    The President has proposed that the United States this year 
admit up to 70,000 refugees. We would allocate 50,000 of the 
refugee numbers among regions based on existing or identified 
caseloads. The unallocated reserve of 20,000 would be used as 
we identify and are in the process of identifying additional 
refugee populations for processing. I recently had the 
opportunity to visit three refugee hosting countries in 
Southeast Asia--Bangladesh, Malaysia, and Thailand--and saw 
very clear evidence of the need to extend the reach of our 
program to thousands of Burmese refugees who require 
resettlement if they are going to be able to end the limbo of 
living in these protracted situations.
    We come into this year with a healthy number of refugees, 
nearly 20,000, in advanced stages of resettlement processing. 
We are already working with our overseas partners to process 
several large new populations for the program such as 
Burundians in Tanzania, Eritrean Kunama in Ethiopia, as well as 
vulnerable Congolese in Burundi. The Humanitarian Resettlement 
program in Vietnam for those who were unable to apply to the 
Orderly Departure Program is now underway, and the first people 
accorded status under this program arrived in the United States 
in September, this month. While the international community is 
making some, although slow, progress in achieving agreement on 
durable solutions for the 106,000 Bhutanese in Nepal, having 
had several meetings on this, I am very hopeful that the coming 
year will end what has been a decade-long stalemate and produce 
concrete results with this population.
    The program continues to target diverse populations of 
refugees throughout the world. We are on track to admit about 
41,200 refugees this year representing over 60 nationalities. 
Interagency cooperation has never been more important to the 
sustaining of the successful implementation of this program. 
The Refugee Corps at the Department of Homeland Security's 
Citizenship and Immigration Services is working closely with 
the Department of State to adjudicate applications of those 
that are provided access to our program in more than 50 
locations around the globe.
    We continue to lead the world in refugee resettlement, 
accepting over 60 percent of the individuals referred by UNHCR 
in 2005 and admitting more refugees each year than all the rest 
of the world combined. Through multilateral and bilateral 
efforts and bilateral representations, we have been able to 
support UNHCR in promoting the expansion of countries that are 
engaged in resettlement. Brazil, Chile, Argentina, Spain, 
Ireland, and the United Kingdom are some of the nations that 
have joined in this important humanitarian work in recent 
years. We also continue to enhance UNHCR's ability to identify 
and refer refugees for resettlement by working with them to 
ensure that field offices have the resources that are necessary 
for them to carry out this important work.
    Our collaboration with NGOs is a critical part of our 
program. We have solicited and received ideas and benefited 
from the research of NGO colleagues regarding resettlement 
needs and priorities. We have also implemented a mechanism to 
allow NGOs engaged in refugee assistance overseas to refer 
compelling cases directly to us.
    I am also pleased to report that, having overcome some 
significant obstacles this year, we admitted the first nine 
North Korean refugees since the passage of the Human Rights 
Act. While we expect that most North Koreans seeking refuge 
will continue to resettle in the Republic of Korea, we are very 
happy to be contributing to this humanitarian effort and are 
working diligently to ensure that more will be admitted here in 
the coming year.
    It is clear that the program has felt the impact of post-
September 11th expansions in the scope of terrorism- related 
inadmissibility provisions of the Immigration and Nationality 
Act.
    As a result, the Departments of State, Homeland Security, 
and Justice have been engaged in efforts to exercise the 
inapplicability provision contained in the INA. This means that 
these amendments do not apply to refugee applications of 
individuals who pose no security threat to the United States 
and that we would otherwise want to admit.
    In consultation with the Secretary of Homeland Security and 
the Attorney General, the Secretary of State has twice invoked 
what has been referred to as the ``inapplicability authority,'' 
that is, the authority not to apply to particular groups or 
individuals the INA provision that bars those who provide 
material support to groups that are deemed ``terrorist 
organizations'' under the vast expansion of the definition in 
the law. The exercise of the inapplicability authority 
benefited Burmese Karen refugees in Thailand who supported 
groups that share U.S. goals and pose no security threat to the 
U.S. We continue to review other populations for similar 
consideration and expect that additional refugees will benefit 
from the use of this authority in the near future.
    Unfortunately, the inapplicability provision does not 
address other meritorious cases, such as Cuban anti-Castro 
freedom fighters, Vietnamese Montagnards who fought alongside 
of U.S. forces, and Karen who participated in resistance 
against brutal attacks on their families and friends by the 
Burmese regime. The administration is working on developing a 
solution to address these groups.
    The President's fiscal year 2007 budget request would 
support 70,000 admissions, and we urge Congress to fund the 
President's full request. Without a healthy appropriation, we 
will be unable to offer resettlement to thousands of refugees 
who are in desperate need of our help.
    The refugee resettlement program is an enormously important 
foreign policy tool. Its use can also promote acceptance of 
other durable solutions, such as repatriation and local 
integration. We are doing our best to ensure that the program 
is flexible and that we provide access to refugees for whom 
resettlement is the appropriate solution. It is the 
administration's view that important national security concerns 
and counterterrorism efforts are compatible with our historic 
role as the world's leader in refugee resettlement. We will 
continue to seek opportunities to strengthen these two 
important policy interests. We look forward to working with you 
and other concerned members of the Senate and House to restore 
the necessary balance between national security concerns and 
our Nation's legacy as a refuge for the persecuted.
    The United States' refugee admissions program has always 
been and remains a wonderful reflection of who we are as 
Americans: generous, compassionate, and immensely proud of our 
cultural diversity. As President Bush said, and I quote, ``All 
who live in tyranny and hopelessness can know: the United 
States will not ignore your oppression, or excuse your 
oppressors. When you stand for your liberty, we will stand with 
you.''
    Thank you for your continued support of this very important 
program. I look forward to answering your questions.
    [The prepared statement of Ms. Sauerbrey appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Madam Secretary. Thank you for 
that testimony and for your service.
    Mr. Scharfen, we would be glad to hear any opening 
statement you may care to make.

   STATEMENT OF JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, U.S. 
 CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND 
                   SECURITY, WASHINGTON, D.C.

    Mr. Scharfen. Thank you, Mr. Chairman and Senator Kennedy. 
I am honored to have this opportunity to discuss the 
President's proposal for refugee admissions in fiscal year 
2007. U.S. Citizenship and Immigration Services 
enthusiastically supports the proposed ceiling of 70,000 
refugee admissions for the upcoming fiscal year. We are 
committed to providing the staff and resources to meet the 
goals outlined in the Annual Report to Congress on Refugee 
Admissions.
    As part of the Department of Homeland Security, USCIS has 
responsibility for interviewing applicants for refugee 
resettlement, adjudicating their applications, and ensuring 
that necessary security checks are fully performed. For the 
first time this fiscal year, members of the newly formed 
Refugee Corps fulfilled this role for the USCIS. The 
establishment of the Refugee Corps is a major success for the 
U.S. Refugee Admissions Program as a whole, and USCIS in 
particular. Today, we have nearly 30 refugee officers on board, 
with others in the hiring pipeline. We are very grateful to 
members of this Committee and this Subcommittee for your 
steadfast support for this initiative from its conception to 
reality.
    USCIS is dedicated to preserving and promoting our National 
security. At the same time, we are deeply committed to 
continuing to provide protection to deserving refugees around 
the world and to upholding our tradition as a Nation of 
immigrants. Due to national security imperatives, legislation 
passed in recent years greatly expanded the definition of 
``terrorist activity'' and ``terrorist organizations'' for 
purposes of determining which foreign nationals may be admitted 
to this country. The legislative initiatives included a 
provision making aliens who provide ``material support'' to 
individuals or organizations that engage in terrorist activity 
inadmissible to the United States.
    The broad language of the terrorist activity provision in 
the Immigration and Nationality Act has had an impact on 
refugee admissions this year. However, the two recent exercises 
of the discretionary exemption authority contained in the INA 
by Secretary Rice for Burmese Karen refugees living in certain 
camps in Thailand show that the interagency process is capable 
of successfully addressing these challenges issues.
    For USCIS' part, we consider the first exercise of 
Secretary Rice's material support exempt authority for ethnic 
Karen Burmese refugees in Tham Hin Camp in Thailand to have 
been very successful. Our refugee officers who worked in the 
Than Hin Camp were able to explore all relevant facts and 
recommend sound decisions on the eligibility of refugee 
applicants on a case-by-case basis. We continue to work on an 
intra-agency basis to consider other groups that may be good 
candidates for future exercises of exemption authority.
    USCIS is committed to a strong partnership with its 
Federal, international, and nongovernmental partners to support 
a robust U.S. refugee resettlement program. We are equally 
committed to ensuring the integrity of our adjudications 
process. As such, we collaborate with our partners, including 
law enforcement and national security colleagues, and 
international and nongovernmental organizations to achieve our 
common objective: offering refuge to some of the most 
threatened populations around the world, while continuing to 
ensure the security of those who offer this refuge, the 
American people.
    I would be happy to respond to any questions you may have. 
One note I would like to add is that just recently we got word 
regarding our term employees, and if you are interested in 
asking questions about that, gentlemen, I will be ready to talk 
about USCIS the term employees issue that I think now both of 
you have been very interested in.
    Thank you very much. I look forward to your questions.
    [The prepared statement of Mr. Scharfen appears as a 
submission for the record.]
    Chairman Cornyn. Well, thank you, Mr. Scharfen. Rather than 
hold us in suspense, why don't you tell us about it?
    [Laughter.]
    Mr. Scharfen. Yes, sir.
    Chairman Cornyn. I know this is a subject of some concern 
to Senator Kennedy and myself in meeting with you and Secretary 
Sauerbrey and Secretary Rice. Could you fill us in?
    Mr. Scharfen. Yes, sir. Just last evening, we received word 
from the Office of Personnel Management that USCIS would have 
the authority to extend the employment of the term employees 
that we had working for USCIS. As you know, this is a matter of 
both authority and resources. What we have now is the authority 
to extend these terms. It is our intention to extend term 
employees until at least January 31st of 2007. This would 
affect 350 term employees, additional employees, and that is a 
rough calculation that we just did today. So that is an 
approximation. But that is our intent.
    We will have to then take a look at our internal funding. 
As you know, we are a fee-funded organization, and we will have 
to be making some shifts in our funds to be able to pay for 
those employees. But that is our intention, and we will do 
that.
    Chairman Cornyn. What would have been the consequences of 
failure to extend this term--
    Mr. Scharfen. I think we were concerned that we would lose 
some valuable experience and very good employees who are 
important for us to the USCIS in being able to maintain our 
current workload. And all projections are that our workload 
will either remain steady or increase.
    Senator Kennedy. Would the Senator just yield? What was the 
reduction of backlog to reduce that backlog of cases--I have 
not got the figures here, but I think it was something like 2.5 
million down to--
    Mr. Scharfen. Yes, sir. It--
    Senator Kennedy. It was still significant, but at least it 
was dramatic.
    Mr. Scharfen. It was dramatic, yes, sir. At one point in 
the year 2004 we had a backlog of 3.8 million, and we have 
reduced that backlog now to--
    Senator Kennedy. In terms of people waiting, I mean, that 
meant that the individuals and families were going to be 
waiting for a very considerable period of time, 18 months, even 
longer.
    Mr. Scharfen. Yes, sir. That is correct, sir, and the term 
employees were key to reducing that backlog and, as you point 
out, reducing that long wait list. We have not achieved that 6-
month goal in all categories, but we have in many.
    Chairman Cornyn. I know the President's goal and your goal 
is to bring that down to no longer than 6 months. And I think 
if there had not been the extension of the term allowing you to 
maintain these employees, it might have proven the maximum. I 
have heard in some quarters that no good deed goes unpunished. 
But in this instance, a good deed has been rewarded by 
providing the additional means to keep these term employees on 
there, continue to work down the backlog. As Senator Kennedy 
and I have worked, as have all our colleagues, on immigration-
related issues, we all know that your workload is going to do 
nothing but increase.
    Mr. Scharfen. Yes, sir.
    Chairman Cornyn. And we do not know exactly how or in what 
respects, but I think it is a virtual certainty that we are 
going to have to provide adequate resources through Citizenship 
and Immigration Services to process the large number of people 
that are going to need your services.
    Mr. Scharfen. Yes, sir, and I would be remiss not to point 
out that it took a lot of interest both within the executive 
branch and the legislative branch. Over 5 years we received 
appropriations, we received the authority to hire the term 
employees, and without that we would not have reduced the 
backlog. And so that is always appreciated.
    Chairman Cornyn. Secretary Sauerbrey, we have talked a 
little bit about really the challenges that the State 
Department and the Department of Homeland Security have in 
meeting the 70,000 cap that has been authorized. And, of 
course, what has been mentioned is the definition of 
``terrorist activity'' that bars the relocation, the 
resettlement of those who have either been combatants, who have 
been members of terrorist organizations as defined, or those 
who have provided material support.
    But it strikes me, looking at the numbers, that this 
definition and these bars cannot alone account for inability to 
meet that 70,000 cap. Could you expand just a little bit on 
what you believe the other factors are that are impeding 
resettlement up to that cap?
    Ms. Sauerbrey. Certainly, Senator. I appreciate the 
opportunity to do so.
    First of all, last year we were funded not for 70,000 but 
for 54,000, and our plan was based on the expectation of 
bringing in 54,000. We are actually bringing in, as I said, 
41,200. Most of the difference really has been because of the 
implications of material support. However, there are other 
factors, and I think perhaps Senator Kennedy referenced the 
large number of refugees around the world. And so we sometimes 
are asked, well, why don't you just go find some other 
refugees? And, indeed, we are looking for other caseloads that 
are not problematic. But we do make decisions based on 
vulnerability, and decisions are made well in advance of the 
time that a refugee actually arrives in the United States, the 
time that it takes from the identification of the caseload, 
working with the government, getting agreement that they will 
allow UNHCR do camp registration.
    For example, right now we have finally achieved agreement 
from Nepal to allow UNHCR to begin registering those Bhutanese 
refugees, which is hopefully a first step towards addressing 
this protracted situation. But my point being that it takes a 
long time to work through the process, getting them registered, 
going through the various security issues, DHS interviews, 
health processing, and so forth.
    So when material support hit us last year and affected--we 
had anticipated ninety-four--there are 9,400 refugees in the 
Tham Hin Camp. It was part of our resettlement program for this 
year. We had anticipated bringing the majority, if not all of 
those, to the United States. That population has largely 
disappeared.
    In addition, there are situations where countries, such as 
Cuba, decide to make it difficult for refugees that are 
processed and do not issue exit permits. So it is a combination 
of these sorts of factors that interfere, but the two big ones 
are funding and material support.
    Chairman Cornyn. Is it through that there is an unallocated 
reserve? Let's say over and above just the funding issue, which 
is a big issue, and we need to do better in Congress to meet 
those funding issues so that we can get closer to the cap. But 
is there an unallocated reserve kept in order to deal with 
unexpected emergencies, natural disasters and the like?
    Ms. Sauerbrey. Well, in this year's plan, we have 
identified a 50,000 number, and we have an unallocated reserve 
of the additional 20,000, and that was, frankly, in 
anticipation of material support waivers that would allow us to 
increase significantly, we hope, the numbers of Burmese 
refugees. But, yes, we can modify the program during the year 
to meet unexpected situations.
    Chairman Cornyn. And certainly I think Congress is capable 
of dealing with emergency situations that might result in an 
unexpected increase due to a natural disaster or the like, but 
obviously you have a challenging job.
    Let me ask you, Madam Secretary, the United States, of 
course, accepts more refugees than any other country. In fact, 
the United States accepts more than 60 percent of the 
individuals referred by the United Nations High Commissioner. 
And that is something we are all justly proud of. But what are 
the Department of State and the United Nations High 
Commissioner doing to encourage other countries to make refugee 
resettlement a high priority?
    Ms. Sauerbrey. I will be next week in Geneva trying to do 
exactly that, because the UNHCR Executive Committee will be 
meeting. We are currently funding a program in Latin America to 
try to build capacity on the part of three Latin American 
countries that have recently indicated willingness to accept 
refugees. And we are trying to help them to develop their 
ability to process and to have a resettlement program.
    We are constantly working with other countries to encourage 
them to join in this effort or increase the number of refugees 
that they are accepting. There really are only- -the only two 
countries that accept any large numbers besides the U.S.--and 
they are very small by contrast--are Australia and Canada. Most 
of the other countries take numbers in the hundreds, and so 
there is a lot of work to do to try to get other countries to 
step up to the plate.
    Chairman Cornyn. Mr. Scharfen, let me ask you, you talked a 
little bit about the Refugee Corps, the men and women who go 
out and help adjudicate these cases. And, of course, we know 
they are required to make difficult and complex decisions. For 
example, they have to determine whether refugee applicants have 
persecuted other individuals.
    What role did these individuals play in administering the 
material support waiver to refugees in the camp in Thailand? 
And can you share with us what you learned from that 
experience?
    Mr. Scharfen. Yes, sir. We did send our members--the USCIS 
members that did go to the Tham Hin Camp to process the Karen 
refugees were from our Refugee Corps. We sent five of the 
members there, and their experience was a good experience. They 
felt that they were able to apply the inapplicability 
provisions well in those circumstances, that the standards and 
criteria were clear to them; the process that was set up there 
with both the NGOs and the State Department worked well; and 
that they were trained well before they went.
    The USCIS provided training with the State Department and 
others here in Washington prior to going to the Tham Hin Camp. 
Once there, the Refugee Corps felt that the experience from 
start to finish was good. Approximately 80 percent of those 
interviewed qualified for refugee status. They were able to 
apply the inapplicability provisions to approximately 30 
percent of that population, and overall they thought that the 
interagency process leading up to the trip to Tham Hin was 
good. It provided them clear guidance, and they were well 
prepared to exercise their responsibilities there in Tham Hin, 
and they are looking forward to going off to Thailand for this 
next set as well.
    Chairman Cornyn. Let me ask one last question, and then I 
will turn it over to Senator Kennedy.
    Secretary Sauerbrey, some have suggested that the State 
Department needs additional authority, but I wanted to know 
from you whether you and perhaps Secretary Rice--I know we 
talked about this some informally at our meeting that Senator 
Kennedy and I mentioned earlier, but whether you believe that 
the waiver authority given to the Secretary that has been 
used--effectively, it sounds--whether that provides sufficient 
flexibility to deal with the issue.
    Ms. Sauerbrey. As I indicated in my testimony, Senator, the 
waiver authority has certainly helped a great deal. It does not 
cover all individuals; for example, in Tham Hin, about 1,000 
are on hold because they are either members of a group or 
identified as combatants.
    Chairman Cornyn. Okay. The waiver just deals with material 
support.
    Ms. Sauerbrey. The waiver only addresses material support.
    Chairman Cornyn. And not combatants or members. Are you 
suggesting that that waiver authority needs to be expanded?
    Ms. Sauerbrey. This is a pretty difficult and complex issue 
because it involves a number of Federal agencies that have 
different responsibilities. We have been working at an 
interagency level within the administration to try to find a 
solution and we will continue to do so.
    Chairman Cornyn. Thank you very much.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman.
    Madam Secretary, just to go over these figures quickly, as 
I understand the administration request--first of all, let me 
acknowledge that there are some former refugees here in the 
audience, as I understand, from Somalia, Liberia, Sierra Leone, 
Romania, maybe other countries. They are now staff at the 
Lutheran Social Services for the National Capital Area. The 
Lutheran Refugee Program is recognized as being just one of the 
really very top over the years. So I thank them for coming and 
thank them for their continuing commitment to the refugee 
community. And if they at the end of the day have some ideas or 
suggestions, we would certainly welcome having whatever 
comments that they would like to make. I am sure I speak for 
our Chairman and Senator Brownback. But we have staff here, and 
we would love to get them, and we will try to get to them 
personally.
    Now, Madam Secretary, just quickly on the figures, the 
administration requested 893 and you have got 783, and 893 was 
for 70,000 and then you got 42,000 for the 783. So just looking 
at the numbers, it does not look quite the sort of fit in terms 
of the numbers, you know, if you are doing a proportionality.
    Is there a comment you would like to make?
    Ms. Sauerbrey. If I can comment on what we are looking at 
currently--
    Senator Kennedy. I was looking at this last year. You know, 
we had authorized 70,000. We got 42,000. And one of the 
comments that you made was that the reduction of the Congress 
funding it, and as I understand it, the administration has 
requested 893, 893 million for 70,000, and you got 783, but you 
only got 42,000, and it looks like percentage-wise there is 
more of a drop there. I am just interested in what your 
comment--if you want to submit it later on for the record on 
it, if there is a way of understanding it a little better.
    Ms. Sauerbrey. Well, there are two parts to funding. We 
have the assistance and protection portion, which is the 
greater portion of our funds go for the kinds of things, Mr. 
Chairman, that you talked about--food, water, sanitation, 
health. The admissions program is the smaller piece of our 
funding, and it was the admission line that took the largest 
cut.
    Senator Kennedy. Okay. If you would just--I would be 
interested just for the record, because that is one we want to 
keep an eye on. We want to try and be helpful to you.
    Mr. Scharfen, I was interested, how did you get from the 
Marines into this work? Quickly.
    [Laughter.]
    Senator Kennedy. My time watcher over here, Senator 
Brownback--no, just kidding. But could you give us a minute or 
two on that.
    Mr. Scharfen. Yes, sir.
    Senator Kennedy. I commend you for it. It is obviously a 
commitment to public service and the country.
    Mr. Scharfen. Thank you. Both my Mom and Dad were career 
public servants. I was stationed--my last tour I was detailed 
as an active-duty Marine Colonel to the Clinton administration 
National Security Council. I then stayed on through the 
transition and stayed on with President Bush's administration, 
in both instances, as Deputy Legal Adviser to the National 
Security Council. From there I retired, and Mr. Hyde--we had 
been working on different pieces of legislation over the year 
in my capacity at the NSC, and he saw fit to offer me a 
position there.
    Senator Kennedy. Well, good for you.
    Mr. Scharfen. Thank you, sir.
    Senator Kennedy. Let me ask you about what DHS can do to 
correct the problem to allow bona fide refugees to come to the 
U.S. And what I am interested in is if you can provide us with 
a list of the groups that Homeland Security has determined are 
undesignated terrorist organizations and explain the 
administrative review process that led to those determinations. 
And does DHS consult closely with the intelligence community 
and other agencies to determine whether a group is an 
undesignated terrorist organization? If you want to provide 
that later on, or you can summarize it now.
    Mr. Scharfen. Yes, sir. It is an interagency process that 
does involve the intelligence agencies, the State Department, 
but I would feel more confident providing that to you in 
writing after this hearing.
    Senator Kennedy. I think this is part of the nub. You know, 
we are talking about waivers and we are talking about 
legislation and talking about the kind of coordination, and I 
think you have got the drift from the Chairman and myself 
about, you know, the interest that we have. I think we have 
gotten some good answers today and helpful answers. But I think 
if we got some accountability in these areas--because this 
material support does not only apply to refugees, it also 
applies to the asylum applicants as well. And as I understand, 
there are 500 or so asylum applicants that this applies to.
    Mr. Scharfen. That is correct, sir.
    Senator Kennedy. And these are people that may very well be 
in real considerable danger.
    Mr. Scharfen. Yes, sir. And those applications have been 
put on hold pending resolution of those issues, sir.
    Senator Kennedy. So they are not required--they don't go 
back. I think one of the points we want to get to is we do 
not--we have got the designation for next year. We are going to 
struggle and fight for the resources, and then we do not want 
to come back next year and find the same kinds of, you know, 
sort of challenges and problems that we have lost the 
opportunity to reach those numbers. I mean, that is in the back 
of our heads, at least mine. So we want to try and avoid it, 
and I think any suggestions and recommendations that you have 
that can help us on that, I would very much appreciate it.
    Mr. Scharfen. Yes, sir.
    Senator Kennedy. Let me mention the issue on what call the 
P-3s. These are the reunifications of the families, you know, 
the family reunification. I had that right here, the family 
reunifications. Here we go.
    At the present time, the administration has a list of 17 
nationalities to be eligible for the P-3 designation. That is 
the ability to bring in their children and their families. This 
is a big aspect of our immigration overall policy, the family. 
And we have dealt with this, trying to get the nuclear family, 
when we had the abuses on the immigration issues. But certainly 
bringing in children and immediate members of the family is a 
priority. And yet it does not apply. I do not know why we have 
to have a P-3 category. Why isn't it available to all the 
groups? Myself, I just do not understand that. Maybe there is a 
good reason for it.
    The UN High Commission and U.S. refugee agencies have urged 
the State Department to create a universal application of P-3. 
Now, this year, you have the Department taking Ivory Coast, 
Togo, and Liberia off the P-3 designation list.
    What is the story?
    Mr. Scharfen. I think that issue I might defer to Madam 
Secretary to answer, taking that country off the list, sir.
    Senator Kennedy. All right.
    Ms. Sauerbrey. We feel very strongly about family 
reunification, and it is indeed a major goal in our program. We 
ran into a situation in Liberia where, because of great changes 
in Liberia, there was great hope and most of the effort of all 
of the refugee program is to enable people to go home. We think 
most people really want to go home.
    What we were encountering was because of the P-3 
opportunity for resettlement for a small number, there were a 
lot of people that were waiting and not going home. So we were 
actually asked in that case by UNHCR, as well as the 
government, interested parts of the government--
    Senator Kennedy. Are you saying they had big, big families 
all of a sudden? Is that what you are--
    Ms. Sauerbrey. No. What I am saying is that because of the 
P-3--and, believe me, there is not a whole lot of understanding 
when we are doing refugee--when DHS CIS is there doing refugee 
resettlement adjudication, there is not a whole lot of 
understanding about who qualifies. So there were a lot of 
people who were simply sitting in the camp missing the 
opportunity to go home because they were thinking that this P-3 
adjudication process was going to allow them to be resettled to 
the United States.
    So we set a time where we allowed the continuing of the 
filing of the forms that would make them eligible, and we will 
restart the P-3 resettlement process, I believe in January. But 
we wanted to create a window that would allow those that needed 
to be thinking about repatriating to Liberia to proceed to do 
so.
    Senator Kennedy. I am just interested generally why we have 
that designation. We are talking about spouses, and we are 
talking about unmarried children under 21, I guess the older 
parents in some circumstances. I never could quite understand 
why we permit that if we are having the refugees from some 
countries and we do not do it for others, and why we--I just do 
not--I really have a difficult time understanding it.
    I would hope that maybe they would go back and take a look 
at it. The UN High Commissioner made the recommendations, the 
various voluntary agencies have made these recommendations, and 
I have never really heard at least a convincing argument to me 
why some countries should have that and other countries not. 
But if you could just take another look at that, I would very 
much appreciate it.
    I know my time is just about up. Could I ask just a moment 
about Darfur? If we have, you know, an overwhelming 
humanitarian kind of problem, it is a little different from 
what we have looked at and our jurisdiction generally in terms 
of refugees. But if there is anything--if the Chairman would 
just permit, if you could give us any kind of hope on this 
situation and give us some idea about any ways that we 
obviously can be helpful.
    Ms. Sauerbrey. This is a little bit out of my department, 
but let me just say I know that the State Department continues 
to work diligently to try to get acceptance for a UN force to 
come in. In the meantime, however, we have seen huge refugee 
flows into Chad as well as internally displaced persons in 
Darfur. We are committed--my office along with others in the 
State Department have committed very large resources to 
protection and assistance.
    One of our great concerns is the attacks that are happening 
with high frequency now on humanitarian workers, and one point 
I would like to make is if there is something I have learned 
very quickly in this position, it is to have tremendous respect 
for the people on the ground who are providing under very 
dangerous circumstances for the well- being of refugees and 
internally displaced persons.
    We are not able at this point to even be thinking about a 
resettlement program because UNHCR simply--it is a very 
dangerous environment, and UNHCR does not have the capacity, 
nor do we, to go in and try to do processing. But it is 
certainly going to be an issue for the future.
    Senator Kennedy. I thank the Chair.
    Chairman Cornyn. Thank you, Senator Kennedy. We have been 
joined by Senator Brownback, who is former Chairman of this 
Subcommittee, and who I know has a lot of interest and 
expertise in this subject, and recently traveled to refugee 
camps in Africa, I understand. Senator Brownback, we will turn 
the floor over to you.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thanks, Mr. Chairman. I do not know 
about the expertise, but I do have a lot of interest in it. And 
I appreciate you holding this hearing, and I appreciate Senator 
Kennedy's long-term interest in this topic for many, many years 
that he has worked on it. I appreciate that, and the people on 
his staff. Esther has, I know, worked on this a lot as well, 
and I appreciate all that effort and focus and intensity.
    Thanks very much for being here. I want to start off 
thanking you and applauding you for twice exercising 
discretionary authority on the Karen refugee population, 
bringing some of those residing in that camp. I visited that 
refugee camp, I guess it was in 2001, and they certainly need 
every bit of help that we can give. I hope you can continue to 
do that. This is a group that is stateless, that has predators 
all around it, traffickers for younger girls in particular, and 
they really need our help, and they do not have another option 
of a place to go. So to the degree you can continue to help 
them out, I would appreciate that.
    I also want to thank you for admitting the first refugees 
under the North Korean Human Rights Act, bringing some refugees 
into the country here.
    Having said that, I think the first group was like nine 
from North Korea, and the numbers I have seen or heard about--
and I do not know if anybody can verify any of these at all--is 
that you are looking at somewhere between 200,000 and 300,000 
North Korean refugees in northern China--stateless, a number of 
the women--the reports I am getting, almost all of the women 
are trafficked, sold into some form of sexual bondage in China. 
There is a generation of children now coming up in that 
situation where they are having children, and these children 
are also stateless and subject to the vagaries and the 
difficulties of being in that situation. I am hopeful we can 
admit a lot more North Korean refugees into the United States.
    I do now know if you have any thoughts that you can give 
about either of those population pools.
    Ms. Sauerbrey. Thank you, Senator. I just came back from 
visiting the Tham Hin Camp in Thailand--tremendously 
overcrowded, huge, huge problems there. I visited one of the 
other more remote camps as well. It certainly brings a driving 
compassion to wanting to help these people through 
resettlement, which is really the only option. They cannot go 
back to Burma. They are stateless, as you said. And Thailand, 
while it has been a generous host for almost 20 years for this 
population, is not willing to allow them to assimilate.
    So the only option is resettlement, and we are eagerly 
looking forward to expanding the resettlement program to other 
camps in Thailand, as well as to hopefully being able to close 
out the Tham Hin population in the next year to the degree that 
we can resolve some of the problems that we have encountered in 
trying to do so.
    As far as the North Koreans, as you know this presents very 
unique challenges because the huge number of them are in the 
PRC. The PRC does not recognize them as refugees. They refer to 
them as ``migrants,'' ``economic migrants.''
    I have had meetings--I was in Beijing about 2 months ago 
and had meetings with the Chinese at that time to urge them, 
No. 1, not to send North Koreans back to North Korea where they 
may be persecuted and tortured; second, to try to get the PRC 
to work more cooperatively with us for those that are in the 
PRC and indicating an interest in resettlement in the U.S.
    The other countries in the region that the North Koreans 
reach, as you know, this is a very sensitive issue. There is a 
great concern about creating a huge pull factor. So we do not 
talk publicly--
    Senator Brownback. I think Kim Jong Il has already created 
a great pull factor--or a push factor, I guess, on his part.
    Ms. Sauerbrey. There is no question, but I would be very 
happy to talk in a more classified setting about the efforts 
that we are making with other countries in the region. But we 
do not talk about that publicly because of the sensitivity and 
the issues of trying to get cooperation. But we will continue 
to work to try to bring additional North Koreans here. It is a 
high priority for the President as well as for my Bureau in the 
State Department.
    Senator Brownback. Looking at that particularly, the PRC 
has been very difficult to deal with on this. I have met with 
them, the administration officials have meet with them, about 
the refoulement that they are doing of North Korean refugees. 
That has created then this trafficking situation, because women 
come across the line, they are actually--and I am even told 
this, that some of the houses along the border, the owners have 
dogs to bark for when people come by to see if it is a female 
North Korean that they can capture and sell. They are captured 
like wild animals and sold for value. But then the women, once 
they are caught, they are told, ``You will do as I say, or I am 
turning you in to the Chinese authority. They are sending you 
back to North Korea, and you know what that means. That means 
you are going into the gulag, and you know what happens 
there.''
    And then they comply, and then the Chinese man that buys 
them tells them the same story: ``You are going to do what I 
say, and if you do not, I am turning you into the Chinese 
authority. They are shipping you back to North Korea. You are 
going to the gulag, and you know what happens there.''
    And so this very situation of refoulement where China does 
not comply with its own international obligations creates this 
entire trafficking pool of hundreds of thousands. Hundreds of 
thousands that are in. And I think it is past time for us 
talking to the Chinese. I think it is time for us to start 
talking about economic sanctions on them for violating their 
own agreements with the UNHCR, that we should do a type of 
approach where, if you are going to continue to refoule, then 
we are going to put forward systems where we can tax you and 
hit you economically on this, if you are going to continue to 
violate this in such a way that these people are being 
persecuted and killed.
    I hope the administration can join us on this. I know the 
President is deeply concerned about it.
    I would note one final thing, because my time is way over. 
I appreciate the 70,000 number, but we just have been averaging 
bringing in 41,000 refugee admission the past 4 years. We are 
not coming close to those numbers. And from what I have seen 
and the people I have talked to, there is no shortage of 
refugees around the world that we would not be hitting these 
numbers. And I would really urge you to redouble your efforts. 
I know it is difficult. I know we have a lot of security 
concerns to watch for. But there are huge populations that are 
absolutely persecuted and have no other option. And it gives 
them hope, and it makes us a better place. These people are 
resettled in the United States. I have hosted the North Korean 
refugees. They tell incredible stories, but it is an incredible 
story of human courage. And their persecution is just a direct 
hit into our system of saying, well, we ought to stand up for 
people that are in troubling circumstances, and the more people 
they can talk to, the more people they motivate. It is a 
blessing to us, and I really hope we can do more to do that and 
get more individuals in the United States, if for no other 
reason than for our own benefit here.
    Thanks for your work. Godspeed in it. I just think we need 
to do more, and particularly in some of these targeted 
populations that are in a horrific circumstance.
    Ms. Sauerbrey. Thank you, Senator. I appreciate everything 
that you have said and share your passion about it and just 
hope that the Senate mark, which is the President's request, 
will be what we are working with next year. As I indicated 
before you came in, Senator, we were only funded for 54,000, 
despite the fact that the President had asked for 70,000. And 
this year the Senate has a mark that will allow us to reach the 
President's goal. In addition to the fact that we now have the 
inapplicability provision for the Karen, this gives us great 
optimism that with these two things in place, we can indeed 
increase our numbers significantly.
    Senator Brownback. I hope you hit the number, because as an 
appropriator, when I see money appropriated and then if it is 
appropriated for 70,000 or even 54,000 and you only hit 41,000, 
I am thinking, well, I have got some money I can put somewhere 
else now. So you need to hit the number and use it, or it is 
going to be shifted somewhere, because people are always, you 
know, tracking for where can we move money around in this 
budget. That is the nature of what happens here.
    Ms. Sauerbrey. Had we not encountered the problem of 
material support this year, I think we would have reached our 
number of 54,000 that we were funded for. So now we hope that 
next year, because we do have the waivers for the camps in 
Thailand, that this will expand the pool that we have already 
got in the pipeline. So we hope that we can count on the 
funding to be able to reach the numbers.
    Senator Brownback. All right. Thanks, Chairman.
    Chairman Cornyn. Thank you, Senator Brownback. Let me 
extend my thanks to both of you again for being here today and 
for your service to the Nation and to people truly in need. 
Thank you very much.
    We will now move to the next panel, please.
    Father Gavin and Mr. Horowitz, thank you for being here 
today and for contributing to our knowledge on this important 
topic.
    Let me first introduce Mr. Horowitz, who will be the first 
member of the second panel. He is a Senior Fellow and Director 
at the Hudson Institute for Civil Justice Reform and Project 
for International Religious Liberty. Mr. Horowitz served as 
General Counsel for the Office of Management and Budget from 
1981 to 1985, and as an Associate Professor of Law at the 
University of Mississippi from 1965 to 1967. He served as 
Chairman of President Reagan's Domestic Policy Council on 
Federalism and was co-Chairman of the Cabinet's Council Working 
Group on Legal Tort Policy.
    We also have with us today Father Kenneth Gavin. Father 
Gavin serves as the National Director of the Jesuit Refugee 
Service/USA, in addition to serving as Vice Chair of the 
Refugee Council USA. Father Gavin has also served on the boards 
of numerous Catholic educational and service organizations. He 
has a Ph.D. in speech pathology from Northwestern University, a 
master's of divinity from Weston School of Theology, a master's 
of art in linguistics from the State University of New York, 
and last, but not least, an A.B. from Fordham University.
    Gentlemen, thank you for being with us today. Mr. Horowitz, 
let me turn to you first for any opening statement that you 
would care to give, and let me remind you to punch that little 
button at the bottom of your microphone, and if the light comes 
on, that means your microphone is working.

 STATEMENT OF MICHAEL J. HOROWITZ, DIRECTOR, PROJECT FOR CIVIL 
JUSTICE REFORM AND PROJECT FOR INTERNATIONAL RELIGIOUS LIBERTY, 
               HUDSON INSTITUTE, WASHINGTON, D.C.

    Mr. Horowitz. Thank you, Senator Cornyn. I am sorry Senator 
Kennedy is not here because I wanted to start off by saying I 
am a Marine also, except that I only made it to Lance Corporal 
E-3. I never got to Colonel, as the prior witness. And I think 
that is relevant because there is a lot of mock macho that does 
go on here on some of these immigration issues that I hope to 
address today that I hope that this Committee and many Senators 
will correct.
    I have been a frequent witness before Congress. I have 
never been more pleased to testify than I am today because of 
the symbolic and the real importance of the issue before this 
Committee.
    We have heard Secretary Sauerbrey say that she has not met 
her target largely because of the construction of the so-called 
material assistance issue and problem. Let me describe what it 
is.
    First, there is the determination made, to take a 
particular example, that members of the Hmong and Montagnard 
communities, no matter that they proved themselves eligible for 
refugee status on every ground, no matter that they are vetted 
individually on grounds of whether they will support 
terrorism--they have been involved in terrorism, have committed 
crimes. They pass ever test with flying colors, and they are 
deemed terrorists per se solely because their community fought 
on the side of the United States in the Vietnam War.
    Now, I do not believe that that construction is remotely 
called for under the statutes that Congress passed. But the 
fact of the matter is that there is that waiver authority, and 
we have seen it exercised in the case of the Karens, a very 
narrow band of them. This has gone on for 2 years, Mr. 
Chairman, and it is inexcusable that members who fought and 
died on the side of United States troops are deemed terrorists 
and excluded from the United States simply because they took 
our side. That surely is no way to enhance the national 
security of the United States, and Secretary Sauerbrey 
indicated and we know that there is clear authority, at least 
in some cases, to waive that for people who have given material 
support.
    I was troubled to hear Secretary Sauerbrey say that it is 
complex and difficult to get administration support for what I 
would regard as a technical amendment because, once again, the 
position that Ms. Sauerbrey says is complex is one that says 
that if you gave aid to the troops fighting on the side of the 
United States in Vietnam, why, then we can waive you in and not 
exclude you, no matter what else, no matter what other 
qualities you bring; but if you lifted a rifle and engaged in 
combat risking your life on the size of United States troops, 
why, we need a statutory amendment and it is a very complicated 
matter.
    I do not think it is a complicated matter, Senator, and I 
hope that the Senators, and particular conservative Senators, 
will hold the administration's feet to the fire on that issue.
    Now we get to the second issue, the so-called duress issue. 
We have case after case of people who paid ransoms because 
terrorists came in their community, stuck guns to the heads of 
their children, and threatened to rape them, and they paid 
modest ransoms. They are regarded as terrorists. And once 
again, they meet the test of refugees in every single 
particular. They pass every known test of whether or not they 
pose any security problems to the United States, whether they 
have associated with terrorists, whether they have committed 
crimes in their own countries. There is a whole host of tests, 
and there ought to be tests, particularly after 9/11, on an 
individual case. But what we have here is a per se 
determination that says the facts be damned. We do not care how 
qualified you are as a refugee. If you paid a ransom to stop 
your wife from getting shot, you are a terrorist.
    Now, I do not believe that the Congress of the United 
States passed legislation that posed a test that every single 
Member of Congress would have failed. I think the Supreme Court 
has made clear in a number of cases, to cite the Bailey 
decision, where given the circumstances where reasonable men 
must concede that they, too, would not have been able to act 
otherwise, a duress exception defense is implicit in the law. 
And yet the administration has refused to allow this, so that 
victims of terrorism are regarded as terrorists.
    Or to take the case of groups, as a letter from the Jewish 
community said, under the administration's definition people 
who fought in Warsaw against the Nazis would be regarded as 
terrorists, inadmissible to the United States whatever other 
virtues they had. As I say, I do not think we need to change 
the law, but even if one reads the law as Secretary Sauerbrey 
does, why have we waited for 2 years to give that same kind of 
exception to Montagnards, to Cubans, and to others that we have 
reluctantly given in a narrow band to the Karen?
    But the matter is even worse than that, Mr. Chairman, 
because when I discovered that this was going on, to my utter 
astonishment, I could not believe, because I do support and 
love the President and know where he comes from on these 
issues, that this was a position taken by the administration. I 
sat down with the refugee groups. There is, as you know, 
legislation from conservatives, from Congressman Pitts, there 
is Senate legislation to deal with this anomaly, to deal with 
this issue. But we all know what getting legislation passed at 
the end of session is like, and so I look to see if there 
weren't administrative solutions that could resolve, for the 
most part, all of these problems. And it turned out there were.
    And I work with the immigrant groups, and then I called up 
colleagues, former colleagues, friends of mine in the 
administration, and I said, ``How do you justify not holding 
hearings for 2 years on Montagnards to give them the waiver?'' 
And they said, ``We really can't.'' So what we did was put in 
an administrative determination that there would be a timely 
procedure for holding these hearings and determinations for 
waivers of groups that are not terrorists, that are freedom 
fighters, that would never be listed as terrorists by the 
Government in any other context.
    Then we got to the duress problem. I said, ``How can you 
deem a person to be a terrorist who simply paid a ransom to 
avoid the death of a spouse?'' Or we have the case of women who 
were repeatedly raped and who washed the clothes of the 
terrorists who raped them. They are denied refugee status.
    We have the case--I said, ``How can you possibly do it?'' 
They said, ``Well, the first problem is there is no definition 
of `duress.' It is too loose.'' So I sat down with the refugee 
groups, and you will see it, Mr. Chairman, in one of the 
attachments here entitled ``Administrative Proposal.'' And the 
refugee groups agreed to a definition that said that the 
applicant must show that he or she was faced with what a 
reasonable person would deem a threat of death or serious 
bodily harm.
    And they went further. They said that the applicant, even 
if they had the threat of bodily harm, the applicant must show 
that he or she acted necessarily and reasonably to avoid the 
threat.
    And they went further and said that there must be a finding 
that the person--that the fact finder must affirmatively 
determine that the refugee will not threaten the security of 
the United States. I said, ``Is that a tight enough 
definition?'' ``Well,'' they said, ``maybe it is.''
    But we have got another problem. ``We don't trust,'' they 
told me confidentially, ``some of these fact finders. They 
might just ignore the definition and give duress exceptions for 
these people.
    We went back to the drawing board. I said--and the refugee, 
the immigration groups have proposed a stroke-of- the-pen 
administrative solution that says that if a finding of duress 
is made, it must be, before it takes effect, reviewed on a 
timely basis by the home office at DHS.
    Every single security concern raised by the administration 
on the duress issue, which I think is built into the statute, I 
believe we have satisfied, and still there are some within the 
administration dragging their feet. And I will tell you, 
Senator, I have talked confidentially to members of the 
administration who are as upset as I am by the foot-dragging 
that is taking place. And one of the reasons I am so pleased to 
be at the hearing today is because I think United States 
Senators have the capacity to raise this issue at the level of 
the President. And I have no doubt whatever as to the decision 
the President would make on this administrative procedure or 
necessary changes in order to permit Montagnards and Hmong to 
come to the United States or to allow victims of terrorism not 
to be barred because they were victims of terrorism when they 
met every other test for a refugee.
    In the case of the Hmong, I found that--
    Chairman Cornyn. Mr. Horowitz, let me ask you to wind down 
your opening statement. We can get to some questions and 
answers.
    Mr. Horowitz. You bet. The only other--there are many other 
things I think that can be said here, but I would simply say 
that, as a conservative, this approach caricatures the kind of 
tough approaches that you have taken on many other issues and 
related issues. And I think it is incumbent on those of us who 
really want a robust policy dealing with the aftermath of 9/11 
to fight the hardest to take out policies of this kind, which 
are facts be damned, blanket use of--misuse of statute in order 
to deny refugee status to otherwise fully qualified people.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Horowitz appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Mr. Horowitz. Father 
Gavin, we would be glad to hear from you.

STATEMENT OF REVEREND KENNETH GAVIN, S.J., VICE CHAIR, REFUGEE 
COUNCIL USA, AND NATIONAL DIRECTOR, JESUIT REFUGEE SERVICE/USA, 
                        WASHINGTON, D.C.

    Rev. Gavin. Thank you, Mr. Chairman, for this opportunity 
to testify as Vice Chair of Refugee Council USA and as National 
Director of Jesuit Refugee Service/USA.
    Refugee Council USA, as you know, is a coalition of 23 
nongovernmental organizations dedicated to refugee protection. 
I have with me a copy of our annual report for this year, and I 
ask at this time that it be entered into the record, if 
possible.
    Chairman Cornyn. Certainly. Without objection.
    Rev. Gavin. Thank you.
    I am speaking today on behalf of my own organization as 
well as the agencies and Refugee Council USA who help resettle 
the majority of refugees that the United States admits each 
year. In this testimony, I will make logistical points about 
how he U.S. refugee program can be made more effective, but 
before I move on to statistics, I simply would like to reflect 
on the reality of the people affected by the program itself.
    Fear, hopelessness, and death are the options that most 
refugees face. I saw it firsthand in Malaysia the year before 
last, where I met with Chin refugees who had fled from severe 
religious persecution at the hands of the Burmese Government. 
After fleeing to Malaysia, these refugees found themselves in 
an equally precarious situation. Many of the 15,000 Chin in 
Malaysia live in sordid, plywood hovels in the shadow of the 
splendid rising city of Putrajaya, a city that they have helped 
to build with their own blood and sweat.
    As refugees, they now suffer abuse and threats at the hands 
of local police and unscrupulous employers. These refugees told 
me that their only hope for new lives lies in resettlement and 
a fresh start in a new country.
    Those of us who work with refugees know that each unfilled 
admission slot represents one person who needlessly continues 
to suffer because of our failures to offer a new home and a new 
life through resettlement. In this fiscal year, only 42,000 
refugees are likely to be admitted to the United States, 
leaving more than 28,000 admission slots unfilled. Refugee 
Council USA has consistently called for a target of 90,000 
admissions in the refugee program.
    There are many contributing factors to this devastating 
shortfall in the admissions numbers. The most ominous obstacle, 
as we have heard, for the refugee program is the material 
support inadmissibility bar, which has prevented thousands of 
deserving refugees from seeking protection in the United 
States.
    As my written testimony reflects, the Refugee Council USA 
community calls for a legislative solution to refine the 
statute of the material support bar. Too many refugees have 
been unjustly labeled as willful collaborators with terrorists 
rather than being justly recognized as the victims of 
terrorism. Too many refugees have had their cases put on hold 
because they support groups who have incorrectly been 
categorized as terrorist organizations, and too little has been 
done to reach out to these twice- persecuted people as 
prolonged interagency negotiations over waivers prevent the 
administration from taking swift and effective action for the 
many populations affected by material support.
    Rather than depend on this cumbersome waiver process, we 
call for an amendment to the material support statute itself. 
With this legislative change, the law will promote safety for 
the United States and safety for bona fide refugees who come 
here seeking safe haven.
    Additional obstacles to a more successful U.S. refugee 
program can also be removed through procedural and policy 
reforms. The State Department can treat the annual Presidential 
determination as a target rather than a ceiling, and it can 
make an effort to utilize the admissions numbers by lowering 
the number of rarely filled unallocated reserve positions.
    The State Department should also maintain at least a 3- 
month pipeline of refugees moving toward admission to allow for 
unseen delays in refugee movements during the year. Steps can 
be taken to protect especially vulnerable refugee children and 
to include more Priority 2 and Priority 3 groupings. And all 
processing may be expedited, thus allowing the refugee program 
to admit more vulnerable refugees every year.
    In recent years, the President's budget request has failed 
to include sufficient funds to admit the number of refugees set 
by the Presidential determination, and Congress has 
appropriated even less for refugee accounts. We recommend that 
the MRA account and the Office of Refugee Resettlement be 
funded at $980 million and $798 million, respectively, so that 
the refugee accounts do not continue to depend upon 
supplemental appropriations.
    All these changes should be made to increase the admissions 
numbers, which represent new lives for refugees by the 
thousands. The Chin in Malaysia deserve our help. They dared to 
hope for a better future, and it is in our power to offer them 
new life and new hope through an improved U.S. refugee program.
    Thank you very much for your attention.
    [The prepared statement of Reverend Gavin appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much, Father Gavin, for 
your opening statement.
    Everyone who has spoken so far agrees with the goals of our 
refugee policy, and we have identified some problems that 
Congress perhaps needs to revisit in order to achieve those 
goals. But let me just drill down a little bit more, first 
starting with you, Mr. Horowitz, about some of your concerns.
    If the Government has authority to waive material support, 
wouldn't that also include authority to cover duress, for 
example, the example you mentioned?
    Mr. Horowitz. I do not think anyone denies that the 
Government could create a duress defense on material support.
    Chairman Cornyn. My question is: Couldn't it be included in 
terms of a more--I will not call it a more expansive 
interpretation, but couldn't the--it seems to me that if you 
provide material support, you could do it under duress or you 
could do it voluntarily, but the term ``material support'' is 
broad enough to allow the Secretary to use the waiver. Is that 
not correct?
    Mr. Horowitz. Absolutely. I think when Congress passed it--
it is inconceivable to me that when Congress passed the 
material support provision, I cannot imagine that anybody in 
Congress thought that material support involved paying a ransom 
when there was a gun to the head of your child or you had been 
raped and imprisoned yourself and were forced to wash someone's 
clothes. That is simply done administratively within the 
administration. It is quite controversial within the 
administration. And I believe that if the Senate puts the wood 
to the administration and gets the issue directly to the 
President--and you have seen these letters. They come from Gary 
Bauer and David Saperstein, from the National Council of 
Churches and the Southern Baptist Convention. I have never seen 
such a grouping on an issue of this kind. I believe that the 
handful of people standing in the road saying no can be 
overridden. There are many in the administration hoping that 
you, Mr. Chairman, and your fellow Members of the Senate will 
simply insist that a duress defense can be used.
    And I say again the defense of duress does not excuse you 
from having to prove that you are a legitimate refugee or that 
you are not a threat to the United States to engage in 
terrorist activities on any other ground.
    Chairman Cornyn. Father Gavin, you mentioned a proposed 
change in the definitions that were first applied, I guess, in 
the REAL ID Act of what constitutes a terrorist organization or 
terrorist activity, particularly when we are at war and we 
have, I think we would all agree, valid national security 
interests in making sure we protect America at the same time we 
try to implement a reasonable and rational refugee policy.
    Could you explain to me why you do not believe that your 
concerns could be addressed through perhaps an expanded waiver 
authority that maybe to Mr. Horowitz's point was more 
rationally applied in a way that would achieve the goals that 
we all share?E
    Rev. Gavin. Right. I think that it is important for us to 
say that the Refugee Council is not supporting support of 
terrorists in our country.
    Chairman Cornyn. I did not understand you to say otherwise.
    Rev. Gavin. What we really wish to do is to create an 
interpretation and a legislation of material support that will 
allow terrorists to not enter our country, and yet allow all 
refugees who have a reasonable and valid right to the refugee 
resettlement program to enter. Our concern really with the 
current use of waivers for the material support issue is 
varied.
    To begin with, as we have already heard, the complexity of 
the interagency negotiations is something that obviously takes 
a good deal of time and sometimes more than even a year or two 
to create. And although we applaud the use of waivers, we 
realize that these waivers are not going to be able to be used 
easily for large numbers of refugee populations in the coming 
years.
    Second, there are going to be individual cases that the 
material support issue would apply to and smaller groups that 
will be very difficult to be able to extend the waiver to, just 
because of the complexity of time.
    Of course, then there are the issues of 20 percent of the 
Karen, 1,000 Karen in Tham Hin are not able at this point to 
pass the material support bar precisely because they served as 
combatants.
    There are 565 asylum cases here in the U.S. that are on 
hold precisely because of material support issues. The duress 
issue Mr. Horowitz has spoken to I think is clear.
    For all those reasons, in addition to the complexity issue, 
we feel that simply fiddling with the waiver itself is not 
adequate, and that we have to move towards a legislative 
solution.
    Chairman Cornyn. So far we have heard, just to summarize, 
that there is an issue of unallocated reserve that I know you 
addressed, Father Gavin, in your written testimony that the 
lack of funding as well as the challenges of applying the law 
that Congress passed barring those who provide material support 
to terrorist organizations. Let me ask you, Mr. Horowitz, are 
we doing enough to use our immigration laws and policies as 
instruments and tools to advance our foreign policy and 
national security goals? I am thinking in particular of the 
small number of North Korean refugees that, to use your words, 
``their presence has vividly informed millions of Americans 
about the nature of the Kim Jong Il regime.''
    Mr. Horowitz. Senator, I am here after taking the Red Eye 
back from meeting with the bravest people I have ever been in 
the same room with, in Los Angeles yesterday with leaders of 
the Korean-American community and leaders of the Underground 
Railroad movement. They have lots of ideas about what can be 
done and what to do. And I think there are many things that can 
be done. I will just raise one here.
    I think the UNHCR has gotten off a lot more easily than it 
ought to, at least in the case of North Korea. The North Korea 
Human Rights Act points to the fact that the UNHCR has the 
right to take China to binding international arbitration for 
its unlawful deportation of refugees. The UNHCR has not done so 
for fear of alienating China.
    I believe that we should be placing much greater pressure 
on the UNHCR to get at China, to take them to international 
arbitration, in order to increase the potential flow of North 
Korean refugees. One of the great keys is the UNHCR, and I 
think we ought to be taking tough tests with the new, with the 
incoming candidates for Secretary General of the United Nations 
to see that the UN takes a tougher position vis-a-vis China 
than it does. The North Korea Human Rights Acts calls the 
failure to take China to arbitration by the UNHCR an 
``abdication of its core responsibility.''
    A second area is an amendment that this Committee adopted, 
Mr. Chairman, the S visa exception, which says that if you can 
find--if people are prepared to defect with knowledge of 
weapons of mass destruction or terrorism from countries like 
North Korea and Iran, they and their families should get green 
cards. The administration has opposed such a provision, even 
though it was unanimously adopted by this Committee.
    What Senator Brownback said about national interest here--
and I would echo it--if we can get 1,000 North Korean refugees 
in, that is it, we educate the people of the United States 
about the nature of the regime and encourage them to take steps 
like the blacks did in bringing down the apartheid regime or 
like the Jewish community did under the leadership of Senator 
Jackson, they are precious assets for that reason. And while I 
think some in the administration have done well, I think we 
need to do a lot more in terms of the American national 
interest.
    Chairman Cornyn. You mentioned Iran, and the treatment of 
religious minorities there has, by all accounts, worsened 
considerably under President Ahmadinejad, who has expressed his 
wish, of course, to wipe Israel off the map and who has 
repeatedly denied the Holocaust.
    Do you anticipate an increase in the departure of religious 
minorities from Iran to participate in the U.S. refugee 
program? And if so, can you talk a little bit about what you 
think might be some of the ramifications of such a departure on 
U.S. foreign policy and national security interests?
    Rev. Gavin. Well, I think every time that safe harbor is 
created, every time we give out what, ounce for ounce, is the 
most precious resource in the world, a United States green 
card, to sufferers of persecution, we send out messages of 
hope. We tell those regimes that you cannot lock up your own 
people, that there are outlets and escapes. We bring to the 
world voices that tell the rest of the world about what is 
happened, and we thereby strengthen American national security 
interests.
    That was exactly the notion behind Jackson-Vanik, which 
people said could not be done, you could not do anything to the 
Soviet Union. That refugee policy was the policy that placed 
the first big cracks in the walls of the Soviet Union. Refugee 
policy does it time after time after time, and I hope that we 
are more welcoming than, in my judgment, we have been to many 
religious refugees. And I hope we send out the signal that, 
yes, we will be a haven for victims of religious persecution 
from Iran.
    Chairman Cornyn. Well, to both of you, I want to say thank 
you on behalf of the Subcommittee and to thank all of the 
witnesses for being here today and testifying at today's 
hearing.
    We are going to leave the record open until 5 p.m. on 
Wednesday, October the 4th, for members who perhaps were not 
able to be here today to submit additional documents into the 
record and perhaps even to ask questions in writing of any of 
the panelists.
    So, with that and our thanks, this hearing is adjourned.
    [Whereupon, at 4:33 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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