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


 
 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: PRIORITIES AND THE RULE OF 
                                  LAW

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   IMMIGRATION POLICY AND ENFORCEMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 12, 2011

                               __________

                           Serial No. 112-66

                               __________

         Printed for the use of the Committee on the Judiciary


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



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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

           Subcommittee on Immigration Policy and Enforcement

                  ELTON GALLEGLY, California, Chairman

                    STEVE KING, Iowa, Vice-Chairman

DANIEL E. LUNGREN, California        ZOE LOFGREN, California
LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
TED POE, Texas                       MAXINE WATERS, California
TREY GOWDY, South Carolina           PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida

                     George Fishman, Chief Counsel

                   David Shahoulian, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            OCTOBER 12, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Elton Gallegly, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on 
  Immigration Policy and Enforcement.............................     1
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Ranking Member, Subcommittee on 
  Immigration Policy and Enforcement.............................     2
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     9

                               WITNESSES

John Morton, Director, U.S. Immigration and Customs Enforcement
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
Chris Crane, President, National ICE Council
  Oral Testimony.................................................    49
  Prepared Statement.............................................    51
David B. Rivkin, Jr., Partner, Baker & Hostetler, LLP, 
  Washington, DC
  Oral Testimony.................................................    57
  Prepared Statement.............................................    60
Ray Tranchant, Director, Advanced Technology Center, Tidewater 
  Community College
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68
Paul Virtue, Partner, Baker & McKenzie, LLP
  Oral Testimony.................................................    71
  Prepared Statement.............................................    74

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Ranking Member, 
  Subcommittee on Immigration Policy and Enforcement.............     4
Letter from Robert M. Morgenthau, of Counsel, Wachtell, Lipton, 
  Rosen & Katz, submitted by the Honorable Zoe Lofgren, a 
  Representative in Congress from the State of California, and 
  Ranking Member, Subcommittee on Immigration Policy and 
  Enforcement....................................................    23
Memorandum from John Morton, Director, U.S. Department of 
  Homeland Security, submitted by the Honorable Ted Poe, a 
  Representative in Congress from the State of Texas, and Member, 
  Subcommittee on Immigration Policy and Enforcement.............    28
Excerpted Material from hearing held on July 26, 2011 on the 
  ``HALT Act,'' submitted by the Honorable Zoe Lofgren, a 
  Representative in Congress from the State of California, and 
  Ranking Member, Subcommittee on Immigration Policy and 
  Enforcement....................................................    89

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement/Memo of Janice Kephart, former Counsel, 9/11 
  Commission, National Security Director, Center for Immigration 
  Studies........................................................   100


 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: PRIORITIES AND THE RULE OF 
                                  LAW

                              ----------                              


                      WEDNESDAY, OCTOBER 12, 2011

              House of Representatives,    
                    Subcommittee on Immigration    
                            Policy and Enforcement,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 3:05 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Elton 
Gallegly (Chairman of the Subcommittee) presiding.
    Present: Representatives Gallegly, Smith, King, Gohmert, 
Poe, Gowdy, Ross, Lofgren, Jackson Lee, and Waters.
    Staff Present: (Majority) Dimple Shah, Counsel; Marian 
White, Clerk; and (Minority) Tom Jawetz, Counsel.
    Mr. Gallegly. Call to order the Subcommittee.
    Over the past year the Obama administration has made 
numerous announcements seeking to grant benefits to illegal 
immigrants and other removable immigrants without approval from 
Congress. These announcements are in defiance of both the 
constitutional separation of powers and the will of the 
American public. They are part of the Administration's ongoing 
efforts to grant amnesty to illegal immigrants.
    From the onset this Administration has failed to adequately 
enforce our immigration laws. What makes this worse is that the 
supporters of the comprehensive or targeted amnesties for 
illegal immigrants have consistently failed to win approval 
from Congress or gain support from the American people. Since 
comprehensive immigration reform has failed to pass in the 
legislative branch, the Obama administration has now decided to 
implement various programs that will benefit potentially 
millions of illegal immigrants.
    What the President is doing is unfair to the 26 million 
American workers who are unemployed or underemployed. Amnesty 
is also unfair to those who are waiting to legally immigrate to 
the United States.
    These administrative decisions will only attract more 
illegal immigrants looking for the same opportunity and take 
more jobs from American workers. This policy makes no sense 
during a time of economic hardship and high unemployment.
    It is Congress' job to create immigration policy and it is 
the President's job to enforce it. The Administration's 
discretionary power should be used only on a case-by-case basis 
in compelling circumstances. In its most recent announcement 
the Administration opened the door to the possible amnesty of 
300,000 immigrants who are currently in the process of being 
deported. This is a clear abuse of discretion.
    I, along with other Members, have urged the Administration 
to reverse what we consider this misguided policy.
    At this point I would yield to the gentlelady, my friend 
from California, the Ranking Member, who agrees with me on 
almost everything.
    Ms. Lofgren. Thank you, Mr. Chairman. It wasn't long ago, 
just 11 weeks, that this Subcommittee held a hearing on H.R. 
2497, the HALT Act. That bill was a response to the series of 
ICE memos that laid out enforcement priorities and provided 
guidance on the use of agency discretion to best meet the 
priorities.
    At that hearing we examined the memos closely and we saw 
that they contained nothing new, nothing surprising. The memos 
are actually just common sense.
    We know that Congress has dramatically increased the 
resources available to enforce our immigration laws, broken as 
they are, and enforcement of those laws is at an all-time high, 
with respect to removals, criminal prosecution of immigration 
violation, worksite enforcements actions, fines, jail time and 
assets at the border. In fact as of 1 month ago the 
Administration had removed 1.06 million people from the country 
in just 2\1/2\ years. At that pace the Administration will 
remove many more people in one term than President Bush removed 
in his full two terms, 8 years, as President.
    Still the reality is we don't have the resources to remove 
all 11 million undocumented immigrants even if we all agreed 
that that was a smart and humane response to the current 
situation. Given that we will always have limited resources, it 
just makes sense that we focus first on people who would do us 
harm, terrorists and serious criminals, before we turn our 
attention to the undocumented spouses of military personnel and 
innocent children who were brought here years ago through no 
fault of their own.
    My Republican colleagues call the ICE memos administrative 
or backdoor amnesty. That is hyperbolic and a little bit 
partisan because the rhetoric may work in some of these 
presidential debates but it isn't really the truth. These memos 
setting immigration priorities are not unprecedented despite 
what some of my colleagues have said, and the HALT Act I 
believe is just more of a partisan attack. It sunsets at the 
end of the President's first term and would deny him the same 
authority that every President has always had.
    The guidelines for the use of prosecutorial discretion date 
back to an INS General Counsel memo from 1976, a year after I 
graduated from law school. Additional memos have been issued in 
the intervening years in both Republican and Democratic 
administrations, and these earlier memos are the predecessors 
of the memos the majority is complaining about today. The 
majority never said anything about those earlier memos or the 
factors listed in those memos until now.
    The guidance that most closely resembles what ICE issued 
earlier this year came in November of 2000, from then INS 
Commissioner Doris Meissner. At the HALT Act hearing we 
reviewed the origins of the Meissner memo, but it is worth 
reviewing once more.
    In 1999, a bipartisan group of 28 Members of Congress sent 
a letter to former Attorney General Janet Reno stressing the 
importance of prosecutorial discretion in the immigration 
context and asking her to issued necessary guidance. In that 
letter the Congressmen cited widespread agreement that some 
deportations were unfair and resulted in unjustifiable 
hardship, and they asked why the INS pursued removal in such 
cases when so many other more serious cases existed. They urged 
for a priority of enforcement resources, asking the Attorney 
General to develop INS guidelines that use prosectorial 
discretion similar to those used by U.S. attorneys. That letter 
was signed by the current Chair of Judiciary Committee, Mr. 
Smith, as well as many other very conservative Members of the 
House, including former Chair Henry Hyde, former Chair Jim 
Sensenbrenner, Brian Bilbray, Nathan Deal, Sam Johnson and 
David Dreier.
    During the hearing we had, Mr. Smith argued that his 1999 
letter wasn't relevant because that letter asked for discretion 
on a case-by-case basis and even then only for lawful permanent 
residents. But with respect to the first point it is baffling 
because, as Director Morton I am sure will tell us, the 
prosecutorial discretion memo says that ICE officers, agents 
and attorneys should always consider prosecutorial discretion 
on a, what, case-by-case basis. The decision should be based on 
the totality of the circumstances. And the requirement that had 
the discretion be exercised on a case-by-case basis is 
mentioned three times in the two memos under scrutiny.
    As to the second point, I have to say that any fair reading 
of Chairman Smith's 1999 letter would show it is in no way 
limited to lawful permanent residents nor should it have been. 
I think that it is ironic that the Chairman's 1999 letter 
really set in motion the chain of events that results in the 
memo we are discussing here today for a second time.
    However, I think there is an even deeper irony. The 1999 
letter argues for discretion to consider hardship when 
initiating or terminating removal proceedings. But the letter 
fails to acknowledge that the 1996 changes to the immigration 
law that were championed by Chairman Smith were largely 
responsible for the cases of hardship featured in the letter.
    Since that time, we have done virtually nothing to reform 
our immigration laws, even though they are in need of it. Small 
wonder that we continue to have unjustifiable hardship and that 
we need to review these cases on a case-by-case basis.
    And I would ask unanimous consent for my entire statement 
to be submitted into the record.
    [The prepared statement of Ms. Lofgren follows:]

    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Gallegly. Without objection. I would just like to 
clarify my earlier statement; not always but I appreciate my 
good friend's comments. And we will move along. We have some 
very distinguished members, witnesses on our panels today. Each 
of the witnesses' written statements will be entered into the 
record in its entirety. And I would ask that each witness try 
to help us abide by the time limits so everyone will have an 
opportunity to ask questions and we will get to everyone today.
    Our first--I see the Chairman of the full Committee has 
arrived. Mr. Smith, do you have an opening statement?
    Mr. Smith. Thank you, Mr. Chairman, I do. Sorry to be late, 
I am coming from another Committee hearing.
    Immigration and Customs Enforcement's primary mission is to 
promote homeland security and public safety through criminal 
and civil enforcement of Federal immigration laws. ICE is also 
tasked with enforcement of U.S. intellectual property laws, and 
this Committee has jurisdiction over both.
    While I appreciate ICE's intellectual property efforts, 
this Administration doesn't often take enforcement of ICE's 
immigration laws seriously enough.
    Congress has voted against amnesty for illegal immigrants 
several times in recent years. But this Administration seems 
committed to backdoor amnesty through administrative action 
even if it can't get congressional approval.
    Over the past year the Obama administration intentionally 
allowed illegal immigrants to remain in the United States.
    For example, the Administration caved to pressure from 
liberal immigrant advocacy groups and announced ``changes'' to 
Secure Communities. This program keeps our neighborhoods safe 
by identifying illegal and criminal immigrants in police 
custody who have been arrested and fingerprinted.
    The changes made to Secure Communities open the door to 
allow illegal and criminal immigrants to avoid deportation.
    Specifically, Director Morton issued two memos to agency 
officials about how to exercise blanket prosecutorial 
discretion when illegal immigrants are apprehended. Such 
authority is acceptable when exercised responsibly on a case-
by-case basis, but Administration officials are using this 
power in mass use and abusing this authority.
    Two months ago the Department of Homeland Security 
announced they will ensure that ``appropriate discretionary 
consideration'' be given to ``compelling cases with final 
orders of removal.'' According to the Administration, this 
review applies to 300,000 pending removal cases. This means 
close to 300,000 illegal immigrants could stay and work legally 
in the U.S. Why does the Administration continue to put the 
interest of illegal immigrants ahead of unemployed Americans?
    The policies set forth in the ICE memos and DHS 
announcements claim to allow ICE to focus on immigration 
enforcement priorities. But that is just a slick way of saying 
they don't want to enforce immigration laws. ICE has shown 
little interest in actually deporting illegal immigrants who 
have not yet been convicted of what they call ``serious'' 
crimes.
    With its memos and announcements, the Administration is 
sending an open invitation to millions of illegal immigrants. 
They know that if they come here illegally, they will be able 
to stay because immigration laws are not enforced.
    Administration officials continue to brag about their 
``record deportation numbers.'' But several sources, including 
The Washington Post, claim the numbers are inflated. Even the 
President has stated that the numbers are ``deceptive.''
    The Obama administration has all but abandoned worksite 
enforcement efforts. Over the past 2 years worksite enforcement 
efforts fell 70 percent. Their lack of enforcement allows 
illegal immigrants to fill the jobs that should go to 
unemployed American workers.
    The Administration claims that they have increased the 
number of employer audits. But audits do little to discourage 
illegal hiring. And employers consider fines often to be just 
the cost of doing business.
    Even when there is worksite enforcement action this 
Administration rarely arrests the illegal workers. The workers 
are free to go down the street to the next employer, and 
unemployed Americans lose out on their jobs.
    While there have been successes in the area of intellectual 
property for ICE, the Obama administration is on the wrong side 
of the American people when it comes to enforcing immigration 
laws.
    According to a recent poll, two-thirds of the American 
people want to see our immigration laws enforced. But the 
Administration continues to put illegal immigrants ahead of the 
interests of unemployed Americans.
    Thank you, Mr. Chairman. I yield back.
    Mr. Gallegly. I thank the Chairman. As I started to 
introduce our first witness today on Panel I, Mr. John Morton 
is Director of the Immigration and Customs Enforcement, better 
known as ICE, at the U.S. Department of Homeland Security. ICE 
is the second largest investigative agency in the Federal 
Government. Prior to Mr. Morton's appointment by the President, 
he spent 15 years at the Department of Justice and served in 
several positions, including Assistant U.S. Attorney, Counsel 
of the Deputy Attorney General and Acting Deputy Assistant 
Attorney General of the Criminal Division.
    Welcome, Mr. Morton.

              TESTIMONY OF JOHN MORTON, DIRECTOR, 
            U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

    Mr. Morton. Good afternoon, Mr. Chairman, Ranking Member 
Lofgren, Chairman Smith, Members of the Subcommittee. Thank you 
very much for the invitation to testify before the Subcommittee 
on the subject of ICE's recent enforcement efforts.
    Let me start briefly with our fiscal year 2011 highlights. 
While we are still verifying the final numbers, the preliminary 
results of ICE's enforcement efforts for fiscal year 2011 are 
quite strong. I anticipate we will have removed about 397,000 
people this past fiscal year with a continued emphasis on our 
highest priorities: Public safety, border security, and the 
integrity of the system. Indeed, over half of the individuals 
we removed this past year will have had a criminal conviction. 
The majority of the remainder will have been recent border 
violators, immigration fugitives, or illegal reentrants.
    A few points of particular interest for the Subcommittee: 
we maintained an average of 33,400 beds a day, the highest 
level of detention in our history and the first time we have 
largely met our congressionally mandated average of 33,400. 
This level of detention has allowed us to remove on the order 
of 216,000 offenders this year, another record and an 89 
percent increase over fiscal year 2008.
    Pursuant to Congress' direction to identify criminal 
offenders in the Nation's jails for removal, we deployed the 
Secure Communities Program in nearly 1,600 jurisdictions in 43 
States, including every county along the Southwest border, and 
assuming we receive continued funding for the program from 
Congress, I expect we will deploy Secure Communities nationwide 
by 2013, marking the first time we will have a truly 
comprehensive system to identify criminal offenders in our 
Nation's jails and prisons.
    We have also created a permanent partnership with the 
Border Patrol to significantly improve the Border Patrol's 
ability to deter illegal immigration along the Southwest 
border. Under this partnership Mexican nationals apprehended by 
the Patrol are transferred to ICE for detention and removal 
through a State other than the one in which they were 
apprehended. Our initial analysis suggests that this 
significantly disrupts smuggling flows. We have done about 
37,000 of these lateral removals this year.
    In addition, our felony prosecutions for illegal reentry 
are at an all-time high, 10,000. And on the worksite 
enforcement front we have conducted nearly 2,500 audits, 
arrested 217 employers and managers, and levied $6 million in 
civil penalties, all enforcement records. We have also had 
another strong year in terms of criminal investigations, and I 
think it is very important for everyone to remember that ICE is 
deeply involved in criminal enforcement in addition to 
immigration enforcement. Indeed, as the Chairman mentioned, we 
are the second largest investigative agency in the entire 
Federal Government, behind only the FBI, and we investigate 
everything from child pornography and sex trafficking to export 
and import violations, drug trafficking, counterfeiting and 
piracy and transnational gangs. We have 7,000 special agents 
throughout the United States and 47 countries overseas. We made 
over 30,000 criminal arrests this past fiscal year.
    A few words on prosecutorial discretion. On June 17th, I 
issued a memorandum to our senior managers providing guidance 
on the exercise of prosecutorial discretion. This, as Ms. 
Lofgren noted an earlier memorandum issued by the agency, is 
not a prelude to mass amnesty. They are not an effort to 
suspend enforcement of immigration laws. On the contrary, they 
are simply a straightforward effort to ensure that our limited 
enforcement resources are focused on the Department's highest 
enforcement priorities; namely, national security cases, 
criminal and drug border violators and those who game the 
system.
    Even though the agency funding sought by the President a 
appropriated by the Congress is at an all-time high, DHS simply 
does not have the resources to charge, detain and remove all of 
the aliens in the country unlawfully. Instead, like any other 
law enforcement agency, we have to focus our resources and 
efforts on higher priority violators. This doesn't mean that we 
are suspending enforcement for whole classes of individuals. We 
are not. We are simply exercising our discretion on a case-by-
case basis in very low priority cases so that we can do more to 
remove criminals, secure the border and sanction those who game 
the system. This discretion does not confer permanent status on 
anyone nor does it prevent the arrest, detention or removal of 
anyone where needed.
    Let me close by noting how proud I am of the work of the 
men and women of ICE this past year. Not only have they 
achieved numerous enforcement records, we have done so in the 
context of an unsettled national debate on immigration. As the 
Secretary recently noted speech at American University, DHS is 
often criticized of being either a mean spirited enforcer 
pursuing record levels of removal or a lax enforcer engaged in 
administrative amnesty. Neither criticism is true. Instead, we 
are simply trying to pursue a thoughtful set of enforcement 
priorities in the context of limited resources and a law that 
needs reform.
    With that, I thank you, Mr. Chairman.
    [The prepared statement of Mr. Morton follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Gallegly. Thank you very much, Mr. Morton, and for 
watching the light. It gives us all a chance at the plate.
    Mr. Morton, you mentioned, I believe the first start of 
your statement, this year you have removed 397,000 illegal 
immigrants.
    Mr. Morton. That is correct.
    Mr. Gallegly. Can you give me your definition of removal?
    Mr. Morton. Yes, the agency counts formal removal, that is, 
people removed pursuant to a formal order either issued by an 
immigration officer or by an immigration judge; and since the 
previous Administration we also count voluntary returns.
    Mr. Gallegly. Well, the thing I want to make sure that we 
are clear on is that, to start with, isn't it true that without 
counting the voluntary returns the actual removal numbers 
dropped dramatically?
    Mr. Morton. If you would remove voluntary returns from the 
total, obviously the total would be less.
    Mr. Gallegly. Those removed voluntarily, are they 
physically escorted out of the country or are they given a 
notice to just leave?
    Mr. Morton. No. In most instances voluntary returns are 
under the control of the government.
    Mr. Gallegly. Does that mean that they are physically taken 
to the border or to the interior or put on the plane and 
verified that that is the case?
    Mr. Morton. In most instances, yes, the law does allow 
both, particularly in the context of formal removal, people to 
be removed without being under----
    Mr. Gallegly. You mean voluntarily?
    Mr. Morton. Well, there is two. There is voluntary return 
and what is known as voluntary departure. Two different things, 
same basic concept. Certainly instances.
    Ms. Lofgren. Mr. Chairman, that microphone is not working. 
I wonder if we could use--there is something wrong with it.
    Mr. Gallegly. Of the 397,000 removed--to me removed means 
they are no longer in country--of the 397,000, can you give me 
your best estimate of how many physically left the country and 
how many physically remained in the country at least without 
verification that they had left?
    Mr. Morton. All of those individuals, Mr. Chairman, have 
been removed from the country under government control of one 
kind or another, departure has been verified. In most instances 
it was done literally under the government's physical control; 
in certain instances they left on their own.
    Mr. Gallegly. On these job site--I was going to go back 
here and look--you cited numbers of how many actual job site 
inspections you did this year.
    Mr. Morton. Yes, sir.
    Mr. Gallegly. And you mentioned how many employers had been 
fined. And I think you mentioned how many actual people had 
been removed. I want to make sure we get to that number removed 
and physically--how many employers were fined?
    Mr. Morton. The total number of the fines was 6--a little 
over $6 million.
    Mr. Gallegly. How many individuals?
    Mr. Morton. I don't know the answer to that.*
---------------------------------------------------------------------------
    *The Subcommittee received the following reply from ICE in response 
to Mr. Gallegly's question:

      ICE response: In fiscal year 2011, 499 Notices of Intent to 
      Fine were issued.
    Mr. Gallegly. We have $6 million that we received in fines.
    Mr. Morton. In civil penalties levied by the agency.
    Mr. Gallegly. And how many did that represent in actual 
removals from the country?
    Mr. Morton. We removed, we arrested about 1,500 workers 
from worksites this year.
    Mr. Gallegly. Of the 1,500 that were arrested, how many 
were removed?
    Mr. Morton. Some of them are still in proceedings, so I 
can't give you a hard answer on that because when we arrest 
somebody obviously we have to put them in immigration 
proceedings.
    Mr. Gallegly. You remember the Chipotle incident?
    Mr. Morton. I do.
    Mr. Gallegly. And there were significant fines.
    Mr. Morton. That case is still ongoing.
    Mr. Gallegly. Okay. How many people that were--I understand 
37 percent or some fairly significant percentage of the 
employees at the job site investigated were illegally working 
in the country; is that correct?
    Mr. Morton. I need to be careful on that case because it is 
still ongoing, but, it would be better to pick another example.
    Mr. Gallegly. During that raid were these folks arrested or 
were they just cited and released?
    Mr. Morton. Um, let me speak more generally, not speak to 
Chipotle if I can, Mr. Chairman, because that is an ongoing 
case.
    Mr. Gallegly. When you do a job site inspection and you 
determine in your inspection that the names and numbers don't 
match, how many are cited and how many are taken into custody?
    Mr. Morton. So the emphasis this year and in past years 
since this Administration has taken over has been on the 
inspection process and that we have increased tremendously. We 
continue to arrest workers that we encounter at work sites, but 
not at the same volume as we had before.
    Mr. Gallegly. Released and given a date to appear?
    Mr. Morton. It depends on the availability of resources and 
detention space at that point. So----
    Mr. Gallegly. One last question because my red light came 
on. Of the 397,000 that you know were physically removed from 
the United States, do you have any indication of any recidivism 
or any rearrest of the 397,000 that were removed?
    Mr. Morton. Not with regard to those 397,000, but 
recidivism is a serious concern. We prosecuted 10,000 people 
this year for illegal reentry alone and that is obviously an 
incomplete figure.
    Mr. Gallegly. And of those 10,000 prosecuted how many 
subsequently removed?
    Mr. Morton. All of them will be removed, many of them in 
Federal prison.
    Mr. Gallegly. Very good. Ms. Lofgren.
    Ms. Lofgren. Before I ask my questions I would like to ask 
unanimous consent to place into the record a letter from Robert 
Morgenthau, who was the prosecutor in New York City for 35 
years and prior to that a member of the U.S. Attorney's Office 
in New York, on this issue.
    Mr. Gallegly. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
                               __________

    Ms. Lofgren. As I read through the memo and recalling back 
to the time even before the Department of Homeland Security, it 
seemed to me that every law enforcement agency makes some 
decision about what is a priority and what isn't. For example, 
today the Mayor of San Jose is quoted as saying there are 
people camping on the plaza in front of City Hall. That is 
against the municipal code but the police are now chasing down 
some murderers. They have got something else that is a higher 
priority than the camping violation. It seems to me that is 
kind of what you are doing here.
    I want to explore why that is necessary, and I remember 
when we had the Attorney General before us some time ago I 
asked him about staffing levels in the immigration--among the 
immigration judicial ranks as well as prosecutors. It is my 
understanding, and I guess this is a question, not a statement, 
that more than 300,000 cases are currently pending in the 
immigration docket and that immigration judges are now setting 
deportation hearings for the year 2014; is that correct to your 
knowledge?
    Mr. Morton. That is correct.
    Ms. Lofgren. And so we have got a situation where we have 
got hundreds of thousands of people waiting and that is not a 
good situation from a law enforcement point of view. If some of 
those people are dangerous criminals, others may be the wives 
of American soldiers in Iraq, you would want to make a 
distinction between those two, isn't that correct?
    Mr. Morton. Of course.
    Ms. Lofgren. I am concerned about the testimony of the 
union, and I just read the written testimony, so we will have a 
chance to explore it further with the union representative. But 
they suggest that there are down times where they could go out 
and just pick up anyone without regard to the priority. But 
isn't it true that the arrest cost represents about 4 percent 
of the total cost of removal, removing an individual?
    Mr. Morton. Yeah, so the point there is that ICE is but one 
operator of many in a very complex system that goes from a 
point of identification and arrest all the way through removal. 
Obviously you have the immigration judges, you have the 
Department of Justice's role, you have CBP, you have CIS. All 
of these things come together in a fairly complicated way to 
form the immigration enforcement system. From our perspective, 
this is about how do we maximize the resources that Congress 
has appropriated. And in our experience in a given year we can 
remove about 400,000 people. And the question comes down to, 
who are those 400,000 going to be? And could you have an 
approach that said it is the first 400,000 people you encounter 
on the street and they are here unlawfully, and you have the 
power and responsibility to enforce the law, so remove those 
first 400,000.
    We have taken a different approach, which is in a world 
where there are far more than 400,000 people that we could 
remove, we want to focus those limited resources on the ones 
that make most sense, and that is criminals, national security 
cases, people at the border, reentrants, people who are gaming 
the system, fugitives, fraudsters.
    Ms. Lofgren. Now I want to explore further the kind of 
focusing in on the worst and the cost issues which can strain 
everything that government does. It is about $120 a day and if 
we are setting things for year 2014, it is a little shy of 
$200,000 that we are going to spend to hold somebody in custody 
for their hearing. So I am just wondering, certainly the drunk 
drivers and the criminals and the felons you are going to keep 
those people in custody, would that be correct, waiting for 
their hearing?
    Mr. Morton. Yes, what you point out is if--because we can't 
possibly hold somebody for 2 years for their hearing because it 
costs so much so we have a non-detained docket and we have a 
detained docket. The detained docket moves relatively quickly, 
roughly $120 a day for detention, that doesn't count officer 
salary and removal expenses. That moves fairly quickly.
    On the other hand, the non-detained docket can take--as you 
have already noted, can go out to 2014, 2015 simply for the 
administrative hearing, let alone what happens in the Federal 
court system. So in that kind of setting we have got to 
prioritize our detention resources, our enforcement resources 
on those cases that we can move quickly. It is why it makes no 
sense to put somebody into detention who requires very 
expensive medical treatment or is terminally ill. It just 
doesn't make sense, and that is what the prosecutorial 
discretion memo is about, is trying to make good calls and 
judgment when it comes to allocating very expensive and limited 
resources.
    Ms. Lofgren. Thank you, Mr. Chairman. My time is up.
    Mr. Gallegly. I thank the gentlelady. Mr. Poe.
    Mr. Poe. Thank you, Mr. Chairman. Thank you for being here, 
Mr. Morton. I am over here. I appreciate what ICE does. My 
nextdoor neighbor is an ICE agent, he works all the time. I 
admire him and all of you all for what you do.
    I have the 20 factors that you have issued through lawyers 
saying that they should consider all relevant factors 
including, but not limited to these 20 factors. I would like to 
make this part of the record, Mr. Chairman. I ask unanimous 
consent.
    Mr. Gallegly. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Poe. These 20 factors that should be considered, were 
you directed by the President to issue these guidelines?
    Mr. Morton. No, this was----
    Mr. Poe. Who told to you issue these guidelines?
    Mr. Morton. This was issued by me.
    Mr. Poe. So you decided to issue these guidelines?
    Mr. Morton. I did.
    Mr. Poe. Was anyone in the White House--the questions are 
not that complicated. Did anyone in the White House direct you 
to issue these?
    Mr. Morton. Again, if your question is was the White House 
and the Department involved in the formulation of this 
memorandum, the answer is yes. Who issued it? I issued it.
    Mr. Poe. Who from the White House was involved in this 
then?
    Mr. Morton. I don't know all of the individuals who were 
involved. I do know the Director of Intergovernmental Affairs 
handled the principal policy review for----
    Mr. Poe. Who would that be?
    Mr. Morton. That is a woman named Cecelia Munoz.
    Mr. Poe. What is the statutory congressional authority for 
prosecutorial discretion?
    Mr. Morton. The principal authority is actually a Supreme 
Court case.
    Mr. Poe. So there is no legislative authority for 
prosecutorial discretion, correct?
    Mr. Morton. I wouldn't go so far as to say that. Congress 
routinely recognizes in our appropriation the need to 
prioritize. Indeed, in our most recent appropriation, which is 
2010, there is an explicit instruction to us from the 
Appropriations Committee to prioritize certain cases over 
another. So Congress has long recognized this power and it is a 
bedrock principle of Federal law.
    Mr. Poe. But there is no statutory authority that you can 
cite to me; it is a Supreme Court decision, correct?
    Mr. Morton. It is, that is right.
    Mr. Poe. Primarily Heckler.
    Mr. Morton. Heckler v. Chaney.
    Mr. Poe. I will read one statement to you in the Heckler 
decision. It says, prosecutorial discretion generally is 
nonreviewable, ``except where the agency conscientiously and 
expressly adopts a policy that is so extreme that it represents 
an abdication of its statutory responsibilities.'' That is in 
the case of Heckler v. Chaney. My opinion is that that comes 
into play in this case.
    There are 900,000 drunk drivers arrested in the United 
States a year, approximately, arrests. Would you agree with me 
or not if we decided, well, that is just so many people we just 
can't get around to prosecuting all those drunk drivers, we are 
just going to use our discretion and prosecute only drunk 
drivers who kill people? Would that encourage drunk driving or 
would it diminish the drunk driving in this country? Do you 
think that would have any factor on anybody else out there who 
wants to drive drunk?
    Mr. Morton. I think that analogy works only if you take it 
to an extreme, and I don't think that is the case here.
    Mr. Poe. I am just asking about drunk drivers. Do you that 
I would encourage more drunk driving if we just gave them all a 
pass?
    Mr. Morton. I think--listen, Mr. Poe, I was a career 
Federal prosecutor.
    Mr. Poe. I know your background. I just want you to answer 
my question. I only have limited time so don't just keep 
talking so that we don't get an answer. Do you think that would 
encourage--there are a lot folks who like to drink and drive 
and one reason they don't do it is because somebody might just 
arrest them and put them in jail. But if we told them, hey, you 
are not going get arrested unless you kill somebody, that would 
encourage drunk driving in the United States, just like it 
would encourage, if you gave a pass on these 20 conditions of 
people who are here illegally, you can stay if your wife a 
pregnant for example. If we gave them a pass on all of that, 
that would encourage more people to come here and try to fit in 
one of these categories so if they got arrested they would meet 
the discretion of your office and let them go.
    That is my problem with this memo, and I think it 
encourages the unlawful conduct, whether you want to call it 
criminal or civil, it encourages people to come here and stay 
here illegally. So I would hope that Congress would deal with 
this issue. I think Congress has to legislatively deal with the 
issue of prioritizing if we do, rather than expecting the 
Director like yourself to decide who wins, who loses, who gets 
to stay, who is got to go home.
    I wish we had more time to talk, I yield back.
    Mr. Morton. Could I just, Mr. Chairman, just address two 
quick points? On the question of statutory authority for 
prosecutory discretion I would refer you to Title VI, section 
202, that does empower the Secretary of Homeland Security to 
set enforcement priorities and policies for the Department.
    And on your other point of if something is a pass, I agree 
if it gets to an extreme, yes, that could be the case, but that 
is not what we are doing here, none these people are--this is 
not about giving anybody who falls within a particular category 
a complete pass or pardon.
    Mr. Poe. Well, if I may, one question, it is 300,000 
people. That sounds like a lot of folks to me that we are 
talking about.
    Mr. Morton. But a very important point is we are not going 
to be administratively closing 300,000 cases. All we have said 
is that we will review the pending docket for cases that might 
warrant prosecutorial discretion. I think it is going to be a 
far, far smaller number than 300,000.
    Mr. Poe. In 6 months give us back the statistics.
    Mr. Morton. Be happy to.*
---------------------------------------------------------------------------
    *The Subcommittee received the following reply from ICE in response 
to Mr. Poe's question:

      ICE response: ICE will provide the statistics to the 
      Committee in April 2012.
    Mr. Gallegly. The Chair yields to the gentlelady from 
California, Ms. Waters--Ms. Jackson Lee of Texas.
    Ms. Jackson Lee. Mr. Morton, this is an important hearing 
and I always take comfort or at least delight in acknowledging 
your prosecutorial background and history and also your 
heritage of understanding the history of immigrants and that 
immigrants by and large come to the United States for better 
opportunity. And even in 2011 I think we still have the values 
that many around the world admire.
    So I think it is important that we have a thoughtful, firm 
and forceful policy. Needless to say, every time I have an 
opportunity I am going to suggest that we have comprehensive 
immigration reform. We are the instructors, we provide the 
guidance for the Administration, any Administration, whether it 
be Republican or Democrat, we certainly work together. But you 
cited a congressional provision that talks about discretion 
that is tied it our laws and I say our, the laws that are 
written by the United States Congress signed by the President 
of the United States.
    So we would be all better off if we had a road map such as 
the comprehensive immigration reform and allow people to access 
citizenship, and of course had a pathway for enforcement that 
dealt with the issues you deal with every day.
    Let me ask some pointed questions if you can give me some 
pointed answers. It has come to my attention that the present 
Administration, Mr. Obama's administration, has deported over a 
million individuals. Can you answer that, sir?
    Mr. Morton. To date, yes, that is right.
    Ms. Jackson Lee. I understand that may be the largest 
number since a number of presidencies and Administrations, is 
that not correct?
    Mr. Morton. It is. Our overall enforcement efforts are at 
their highest as we have ever had as an agency.
    Ms. Jackson Lee. Are you using a lot of resources? When I 
say that, of course the ICE officers' compensation, overtime, 
this takes a lot of money.
    Mr. Morton. It does, our overall appropriation is $5.8 
billion. For the enforcement and removal operations it is 2.8 
billion, of which Congress directs us to spend $1.5 billion of 
that, over half of it, the identification and removal of 
criminal offenders.
    Ms. Jackson Lee. And the memorandum that was written, do 
you consider it a thoughtful memorandum?
    Mr. Morton. I do.
    Ms. Jackson Lee. Do you at the same time as the memorandum 
was issued engage with your regional ICE officers, those who 
head the regional officers, engage them all the time and listen 
to either their concerns or their input on this policy and 
other policies?
    Mr. Morton. Of course.
    Ms. Jackson Lee. And does the memorandum have an open door, 
is there a key that is given that literally says leave all--
leave, everyone, is that--you take keys to the detention 
centers and provide an open door or the jail houses, provide an 
open door for everyone to leave; is that what the memorandum 
says?
    Mr. Morton. It doesn't.
    Ms. Jackson Lee. When your memorandum was issued, a family 
and those of us who feel passion for this issue see a lot of 
tragic stories. And one in particular was a gentleman who was 
in a detention facility in Houston who was crying when he heard 
the news on the television. Obviously he was not a criminal 
defendant. He was teacher who had been hauled away from his 
classroom. I have said to many others before you about my 
concern about raids and that kind of thing. He was crying 
because he thought had he a opportunity. Unfortunately, someone 
decided to be swift on their actions and a man who taught for 
20 years, whatever his misstep was, no past priors, et cetera--
this was a teacher--was swished out of the detention center, 
and now he is in a different light and different position in 
terms of having to get him back. I would say to you that that 
aggravates me because I believe in a discretion situation that 
case could have been reviewed.
    So I ask the question of the vitality of our security under 
this memorandum. We just saw the tragedy regarding the Saudi 
ambassador. Do you feel in any way that you are diminishing our 
responsibility on the issue of criminal aliens or the 
protection of the homeland under this memorandum?
    Mr. Morton. I don't. National security and criminal 
offenders remain our highest priorities, as I think is very 
clear from our efforts to date. Whatever criticisms you may 
have of the agency, our focus on criminal offenders isn't one 
of them. And we, as I mentioned in my opening remarks, will 
have removed about 216,000 criminal offenders this past fiscal 
year. That is by far the highest number of criminal offenders 
ever removed by the agency. We are going to remain focused on 
that, and again it is not something that--it is common sense, 
it is good policy, but it is not something that the agency 
cooked up out of thin air. It is a direction from the Congress 
to us in both our 2008 and 2010 appropriations.
    Mr. Gallegly. The time of the gentlelady has expired. Mr. 
Ross.
    Mr. Ross. Thank you, Mr. Chairman. My tact on this is a 
little different. Back in Florida where I come from there was 
the case of Abel Arango, you may remember, the gentleman from 
Cuba who came over in the nineties and committed an armed 
robbery and was sentenced and because of the Supreme Court case 
in Zadvydas they couldn't keep him for any longer than 6 months 
and he was released. Subsequently a couple of years later he 
shot and killed a police officer in Fort Myers, and they won't 
take him back to Cuba.
    My concern about this is that you are obviously aware of 
these types of cases. In fact you are so much aware it is in 
one of your criteria factors to consider. It says one of the 
ones, probably the 16th one, whether the person's Nationality 
renders removal unlikely. So when you run across somebody whose 
Nationaliy, whether they be from Cuba or Iran or Cambodia or 
wherever, is it an automatic prosecutorial discretion because 
you can't do anything with them anyway?
    Mr. Morton. These are the hardest cases we have because, 
you know, we--the answer to your question is we err on the side 
of public safety. And so we will detain if the person is a big 
danger, even we can't remove. But your point of do we get to a 
point where we have to release that person as a matter of 
Supreme Court law, the answer is yes, we do. I wish that 
weren't the case, but that is the case, particularly with 
countries we have no diplomatic relations with.
    Mr. Ross. When you do, do you put them under an order of 
supervision?
    Mr. Morton. We do.
    Mr. Ross. And how does that work; is it like probation?
    Mr. Morton. It is. We ask people to come in--some people 
that we will put on a form of intensive supervision, others 
that we order to come in and report.
    Mr. Ross. If they violate the order, what is the downside? 
They are still not going to be deported, they will still be 
here.
    Mr. Morton. That is right. We have an inability with 
certain countries to effect removal. Cuba, the example you 
give, is the prime one.
    Mr. Ross. So what is the solution to that?
    Mr. Morton. Well, With recalcitrant countries; that is; 
countries who delay but ultimately it is a constant push to try 
to get them to take their people back. It is diplomatic 
pressure.
    Mr. Ross. What if we say we no longer allow visas from 
those countries, period?
    Mr. Morton. The law provides for that and that is the most 
useful sanctions with countries with whom we have relations. 
Cuba, however, is different story.
    Mr. Ross. How many of those would you say that are out 
there, of the total numbers that their countries won't take 
them back?
    Mr. Morton. There is about I would say 20 countries that 
are slow to take their nationals back and about four or five 
where it is close to impossible. Somalia, for example, a war 
torn country, it is next to impossible to carry out a removal 
to Somalia, extremely difficult. Cuba won't take them back. 
Vietnam will not take people back.
    Mr. Ross. And we continue to issue visas from those 
countries?
    Mr. Morton. In limited circumstances we do. We have 
launched an initiative, however, with the State Department on 
this exact point, to get to the point where certain countries, 
if we can't get an improvement, we are going to recommend to 
the State Department that visas cease to be issued.
    Mr. Ross. Your memo with regard to the exercise of 
prosecutorial discretion, is that as a result of a declining 
amount of appropriation that your agency is receiving? What is 
it a function of?
    Mr. Morton. No, our appropriation is at an all-time high. 
Both the President's request and the Congress' appropriation is 
at an all-time high. So it is not a function----
    Mr. Ross. You said it is the President's request to 
exercise prosecutorial discretion.
    Mr. Morton. No, the President's budget request was the 
highest ever requested and Congress' appropriation was the 
highest ever given.
    Mr. Ross. But you have more cases than you have ever had.
    Mr. Morton. That is right. But even with the appropriations 
we have, there are, depending on whose estimate you believe, 
there are between 10 and 11 million people here unlawfully. We 
can remove about 400,000.
    Mr. Ross. If we had a more secure border, if we had a more 
secure border, it would limit the amount of cases logically 
that you would be having?
    Mr. Morton. It would and I would note the Border Patrol's 
apprehension this year would be around 330,000 along the 
Southwest border, which is the lowest number in a very long 
time, and that is why in my opening remarks I highlighted the 
partnership that we formed with the Border Patrol to improve 
border security. So for the first time we are working hand in 
hand with the Border Patrol to detain and remove a number of 
people that they apprehend, to bring ICE's power to bear along 
the border to improve border security.
    Ms. Lofgren. Would the gentleman yield.
    Mr. Ross. Yes.
    Ms. Lofgren. I had a question on the assertion you made. In 
the case where you have someone who cannot be deported because 
the country of origin will not accept return and you have got 
them on a probation scheme and they violate probation, can't 
you arrest them for the probation?
    Mr. Morton. We can bring people back into detention, but we 
are going to come back, we are going to constantly face the 
same set of requirements.
    Ms. Lofgren. What would it take to initiate a criminal 
prosecution in such cases?
    Mr. Morton. We can initiate criminal prosecution where 
people fail to comply. It is possible, and we do do that on 
occasion. I should note that in a very limited--if you are a 
schizophrenic murderer who is a danger no matter what, we will 
go to the extraordinary length of detaining. Even under the 
Supreme Court precedent we can do that. But what it means is 
that ICE detains and we have people in our detention literally 
for year after year after year and many of the----
    Ms. Lofgren. I thank the gentleman for yielding.
    Mr. Gallegly. The time of the gentleman has expired. Ms. 
Waters.
    Ms. Waters. Thank you very much, Mr. Chairman. There is so 
much to learn about this system as it relates to undocumenteds 
and how we handle them. As I understand it, there are nearly 
300,000 cases that are currently in removal proceedings, is 
that right?
    Mr. Morton. The active docket at the Executive Office for 
Immigration Review is over 300,000 cases.
    Ms. Waters. And if you did not set priorities and determine 
low priority, how long would it take you to take care of all 
these 300,000 cases, to--I guess it would be to adjudicate 
them.
    Mr. Morton. To adjudicate them--the adjudication is done at 
the Department of Justice but we are the prosecutors. For the 
non-detained docket the backlog is such that you are looking at 
many, many years before a non-detained case is heard and 
adjudicated.
    Ms. Waters. Five years, 6 years, 7 years, 8 years, 9 years?
    Mr. Morton. If you factor in the appeals to the Federal 
court which under the law can go all the way to the Supreme 
Court, it can take many, many years.
    Ms. Waters. Now help me to understand. Meanwhile the 
taxpayers are paying the cost for retention of everybody in 
these removal proceedings.
    Mr. Morton. The taxpayers pay for all removal proceedings, 
and for those detained they also pay for the cost of detention.
    Ms. Waters. So in setting priorities what could happen to 
low priority cases, how would they be disposed of?
    Mr. Morton. Very low under--a few things, if they are on 
the non-detained docket they just take many, many, many years 
to be adjudicated. In the instance where we would exercise 
prosecutorial discretion and not put them in the proceedings at 
all and administratively close their case, they would be in a 
legal limbo.
    Ms. Waters. It would be what?
    Mr. Morton. In a legal limbo. They would have no status. 
They would simply be like many of the 11 million people who are 
here unlawfully without permanent status, but not a priority 
for immediate removal.
    Ms. Waters. So how does--unless I missed something, how 
does determining that one falls in the low priority category, 
how does it help us to reduce the cost of the system and the 
time in the system?
    Mr. Morton. What it does is it allows us to focus more of 
our limited resources on the high priority cases. We have more 
cases than we can handle. That is the fundamental challenge 
that we are facing. And when we prioritize our efforts on 
criminals and border cases and people who are gaming the system 
and don't put as many low priority cases into the process, it 
is a zero sum game. We are able to remove more of the high 
priority cases. It comes at the expense of the low priority 
cases.
    Ms. Waters. I don't know if this has been discussed 
already. While we see that we have a problem with the numbers 
and how we are able to have the kind of proceedings that would 
do exactly what you want to do, dealing with the high priority 
cases, has there been discussion about expansion of the court 
to deal with these cases and what does it cost and who has 
demonstrated a willingness to pay that cost?
    Mr. Morton. This has been the subject of quite a bit of 
discussion and you note a very important point, which is ICE is 
but one part of the removal process. The Department of Justice 
is a critical part of it. You obviously have to have 
immigration judges to hear the cases, and there aren't 
sufficient resources to hear all of the cases that are in 
proceedings, which is why you have cases that go on for many, 
many years before they are even adjudicated as an 
administrative matter let alone go through the Federal court 
system for a hearing. But I would--although that is under the 
jurisdiction of this Committee, because the Department of 
Justice is under the jurisdiction of this Committee, the 
immigration judges and the adjudication function is not part of 
ICE or the Department of Homeland Security.
    Ms. Waters. So have you heard any discussion at all from 
either side of the aisle about the expansion of resources to 
deal with?
    Mr. Morton. I cannot speak to the Department of Justice's 
appropriation. I just don't know it well, so I don't want to 
make a misstep there. I will tell you that we have been 
discussing with the Department of Justice a reallocation of 
their resources so that more of the Department of Justice judge 
time is focused on the detained docket so that we can remove 
more people who are detained, and those typically are the 
people that are--I think we would all share a view--the high 
priority cases; namely, criminal offenders and people who have 
reentered the country illegally, border cases.
    Ms. Waters. With the expansion of resources, for those 
people who don't like the idea of setting priorities and 
determining the higher priorities and all of that, expansion of 
resources would be the alternative?
    Mr. Morton. That is right. I mean if you are talking about 
expansion to all 11 million people here in the United States 
unlawfully, it is a considerable expansion of resources. ICE's 
budget for enforcement and removal operations is about $2.5 
billion for about 400,000, and that is not to count the other 
resources at CBP, CIS or DOJ.
    Mr. Gallegly. The time of the gentlelady has expired. Ms. 
Lofgren for 30 seconds.
    Ms. Waters. I yield.
    Ms. Lofgren. I just wanted to briefly stand up for the 
immigration judges because they have a crushing caseload, and 
they--I know my former law partner in fact is--it is 
unbelievable workloads. I don't want anybody to assume from 
this discussion the immigration judges are dogging it. I mean 
there just aren't enough. If you compare the number of cases 
they are hearing with any other judge in any system you would 
see they are incredibly overloaded. I just thought it was 
important to note that.
    Mr. Morton. I agree with that in full.
    Mr. Gallegly. I will stick with regular order. I can't let 
that statement go without at least making a comment on it. A 
lot of this is self-inflicted with all due respect. I can give 
you list of cases that have been continued 9, 10, 11 times 
arbitrarily and that in and of itself is justice delayed and we 
know what that means.
    Ms. Waters. Would the gentleman yield for a moment?
    Mr. Gallegly. This will be the last time we get out of 
order. Yes, I would yield.
    Ms. Waters. You made a very serious accusation, you just 
said----
    Mr. Gallegly. I didn't make an accusation. I made a 
statement.
    Ms. Waters. Okay, whatever, it was a statement, but your 
statement said that judges without due consideration 
arbitrarily make decisions to delay.
    Mr. Gallegly. Yes, that is correct.
    Ms. Waters. That is what you are saying.
    Mr. Gallegly. That is correct.
    Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Director Morton, when you all conduct work site enforcement 
actions, and they are down 70 percent since the last 
Administration you seldom detain or remove the illegal workers. 
What is to keep them from walking down the street and getting 
another job?
    Mr. Morton. First of all, I don't completely agree with 
your initial statement. You are right that the number of 
administrative arrests is down considerably. The number of our 
work site inspections----
    Mr. Smith. I am going by administrative arrests because 
that, if it doesn't occur, it allows individuals, as I just 
said, to walk down the street and get jobs.
    What is to prevent under your policies where you don't 
really remove or detain very many illegal workers, what is to 
keep them from walking down the street and getting another job?
    Mr. Morton. They can obviously--as you note, they can 
continue to try to find employment but what our response to 
that is what is keeping them from doing that is we are going 
after employers hammer and tong.
    Mr. Smith. You are going after employers but not the 
illegal workers. And as you just said they can get other 
employment. My point is those jobs should be going to 
unemployed Americans, not to illegal immigrants who happen to 
walk down the street. I assume you agree with that.
    Mr. Morton. I think where you and I--the difference is that 
I am trying to figure out how best to allocate the 400,000 or 
so removals I have, and I think it is better to focus on the 
criminals.
    Mr. Smith. That is not my question. I am simply pointing 
out the result of your policy is that a lot of unemployed 
Americans are not getting jobs that they otherwise might secure 
because illegal immigrants are walking down the streets and 
taking those jobs.
    Next question, do deferred action--under your memos as I 
understand it, thousands or perhaps hundred of thousands of 
illegal immigrants might be eligible for deferred action. To 
the extent that they are granted deferred action, aren't they 
then eligible to get work authorization as well?
    Mr. Morton. A few things, under the prosecutorial 
discretion memo, particularly for the cases in court, it would 
be a different form of prosecutorial discretion. That would be 
in the form of administrative closure. But to your basic point, 
my understanding is that present law under regulations does 
allow someone to apply for work authorization?
    Mr. Smith. Isn't it reasonable to assume that a lot of 
those individuals will be granted work authorization.
    Mr. Morton. I don't think so. I think it will be quite 
narrow. But, as you know, ICE does not grant work 
authorization. That power is with a different part of the 
Department of Homeland----
    Mr. Smith. Do you think it will be a very small percentage 
who are granted work authorization of the individuals who 
receive deferred action?
    Mr. Morton. I think so. I think that is right.
    Mr. Smith. Well, I hope you more than think, that you can 
make sure that----
    Mr. Morton. Again, we do not have that power. That is not 
my responsibility. But, from what I understand, you can apply, 
but it is on a case-by-case basis, and I don't think CIS----
    Mr. Smith. I will take your word, and I hope you are right 
about a very small percentage that will get work authorization. 
Otherwise, they will be taking jobs that should go to 
unemployed Americans.
    My last question is this: When you have individuals who 
have been detained in local jails, you all are called and asked 
if you want to continue to detain them. Most of the time--or 
many times--you do not seek a detainer, and these individuals 
are released into our communities. Do you have an idea how many 
people are released because of that decision?
    Mr. Morton. First of all, I think in most instances, we try 
to detain, and that is why we have removed so many people. Are 
there instances in which, for whatever reason, we do not issue 
a detainer or we don't follow through on a detainer? Of course, 
we don't pick up every single person. Can I give you an exact 
number here today? No, but I am happy to try to figure that out 
for you.
    Mr. Smith. If you could get that for me, that would be 
good.
    Another figure I would like for you to confirm for me, the 
GAO says that approximately 25 percent of all Federal prisoners 
are illegal immigrants. I assume that that figure is accurate. 
If so, it is very disturbing because that is about five times 
their proportion of the population. So if you will confirm the 
second figure and then get me the estimated number of 
individuals who are released back into our communities. I think 
it is going to be in the hundreds of thousands and perhaps 
more. But I will wait for your figure on that as well.
    Mr. Morton. Might I offer--so just for the full context, I 
do think we have pretty good estimates on how many people are 
released from the prison system to the streets. That is 
different than a notice to ICE and then released. In many 
instances, we have no notice.
    Mr. Smith. Do you know what that figure is?
    Mr. Morton. I know that we have it. I think it is in the 
order----
    Mr. Smith. Do any of these people sitting behind you have 
the answer to the question?
    Mr. Morton. I don't think so. But we have a whole 
presentation on this. We spent a lot of time trying to figure 
it out because of our interest in secure communities, and I 
think we can give you a full----
    Mr. Smith. I look forward to that figure as well.*
---------------------------------------------------------------------------
    *The Subcommittee received the following replies in response to 
questions asked by Mr. Smith:

      Response: As discussed with Committee staff, DHS is in the 
      process of responding to the Committee's November 4, 2011, 
      subpoena. To the extent possible, DHS will provide a 
      response to the Chairman's inquiries in its responses to 
      the subpoena.
and,
      Response: Please see DHS's December 12, 2011, submission in 
      response to the Committee's November 4, 2011, subpoena.
    Thank you, Mr. Chairman.
    Mr. Gallegly. Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Director Morton, what input did the White House provide you 
in drafting the so-called prosecutorial discretion memos?
    Mr. Morton. My principal interaction was with the 
Department of Homeland Security, so I did not have a regular 
interaction with the White House on this.
    Mr. Gowdy. Did you have an irregular interaction?
    Mr. Morton. No. As I noted earlier, there was involvement 
by the White House in this. This is Administration policy. And, 
as such, obviously, there was coordination between the 
departments.
    Mr. Gowdy. So the memos would have been approved by the 
White House before you----
    Mr. Morton. The White House reviewed the memos.
    Mr. Gowdy. Who else did you talk to?
    Mr. Morton. The usual--folks at the Department of Homeland 
Security, the Secretary, and her senior staff.
    Mr. Gowdy. Any outside groups?
    Mr. Morton. Me, personally, no.
    Mr. Gowdy. Do you have any knowledge of anyone----
    Mr. Morton. I don't. This was Administration policy. This 
was developed by ICE, Department of----
    Mr. Gowdy. Who developed it?
    Mr. Morton. I did with the Secretary and the White House.
    Mr. Gowdy. Well, now I am confused. So it was you, the 
White House, and the Secretary that developed this policy and 
drafted the memo. Who at the White House helped you draft the 
memo?
    Mr. Morton. No. We drafted the memo. And, as I indicated, 
this is Administration policy. There was involvement by the 
Department of Homeland Security and the White House.
    Mr. Gowdy. Were any outside groups, any immigrant right 
groups consulted?
    Mr. Morton. Not to my knowledge.
    Mr. Gowdy. Did you consult special agents within ICE before 
you issued----
    Mr. Morton. This particular policy is largely focused on 
the enforcement and removal operations. But the answer to that 
question on individual special agents, no. Obviously, the 
leadership of the Homeland Security Investigations, yes.
    Mr. Gowdy. Why didn't you pursue a legislative remedy?
    Mr. Morton. I am not sure what you mean by that.
    Mr. Gowdy. Did you talk to any Members of Congress and ask 
them to change the law to help you order your priorities?
    Mr. Morton. Well, Congress already gives us a fair amount 
in the way of instruction in our appropriation, as you may----
    Mr. Gowdy. That is kind of my point. They did. And then it 
was ignored.
    Mr. Morton. No. Congress, in fact, told us very clearly 
that we were to focus first and foremost on the identification 
and removal of criminal offenders and gave us a direction on--
--
    Mr. Gowdy. Do you think that was to the exclusion of 
everyone else?
    Mr. Morton. But that is not what we are doing. We remove--
about half of the people we remove are criminals, and that is 
about what Congress told us to do. And the other half are 
noncriminals.
    Mr. Gowdy. Do you think the head of the Drug Enforcement 
Administration has the legal authority to decriminalize certain 
categories of drugs?
    Mr. Morton. I don't believe that the head of the Drug 
Enforcement Administration has the power to change a Federal 
law.
    Mr. Gowdy. Does she have the authority to just not pursue 
certain categories of drugs?
    Mr. Morton. Whole classes and categories, no. Does Michele 
Leonhart have the authority to emphasize certain kinds of drug 
prosecutions over others? Absolutely. Does she have individual 
discretion? Absolutely.
    Mr. Gowdy. I am talking about just blanket immunity for 
certain categories of offenders.
    Mr. Morton. I don't believe the DEA would ever assert that 
authority, and we certainly don't.
    Mr. Gowdy. Do you think the Bureau of Prisons has the 
authority to release certain inmates that are near the end of 
their time or even if they are not near the end of their time 
because they have budget constraints?
    Mr. Morton. I wouldn't say for budget restraints. From my 
past life as a prosecutor, in fact, they do have authority with 
regard to people who are very elderly, but that is pursuant to 
Federal law.
    Mr. Gowdy. Right. You also have a memo about victims, 
witnesses, and plaintiffs. And if I understand that memo 
correctly, if you are a plaintiff in certain categories of 
civil litigation, you can escape prosecution and removal, is 
that correct?
    Mr. Morton. Not escape, no. It is simply on whether or not 
we would put you into proceedings during the pendency of your 
litigation. It is not a pass on deportation.
    Mr. Gowdy. What if you were a defendant in a civil case?
    Mr. Morton. It is primarily focused on litigants pursuing 
legitimate civil rights complaints.
    Mr. Gowdy. What if an American citizen has a legitimate 
complaint against someone who is a defendant in a civil case?
    Mr. Morton. And we were seeking to remove that person and 
their presence was necessary?
    Mr. Gowdy. Yes. Is that covered by your memo?
    Mr. Morton. The memo doesn't specifically address that, 
although our practice--we will work with people to maintain 
someone in the country----
    Mr. Gowdy. So your memo specifically addresses plaintiffs.
    Mr. Morton. It does.
    Mr. Gowdy. And you say there might be an exception for 
civil defendants.
    Mr. Morton. I am not sure what you are getting at.
    Mr. Gowdy. Well, what I am getting at is if one illegal 
immigrant sues another, can you avoid removal? Because then you 
have both a plaintiff and a----
    Mr. Morton. Under neither circumstance can you avoid 
removal. There is nothing in the memorandum that is about 
avoiding removal. It simply says, don't put someone who is the 
immediate victim of a crime, a necessary witness to a crime--
    Mr. Gowdy. Or a plaintiff.
    Mr. Morton [continuing]. Or someone who is a plaintiff in a 
legitimate civil rights suit.
    Mr. Gowdy. It is not just a civil rights suit. Is it not 
also landlords?
    Mr. Morton. What is that?
    Mr. Gowdy. Is it just civil rights suits? It is not 
landlord-tenant disputes?
    Mr. Morton. No. It could be a landlord-tenant----
    Mr. Gowdy. Right. So it is not just civil rights. It is 
other forms of civil litigation as well.
    Mr. Morton. That have to deal with vindicating personal 
rights that are recognized either by Federal or State law, that 
is right.
    Mr. Gowdy. What about a medical malpractice case? Would 
that be covered also?
    Mr. Morton. No.
    Mr. Gowdy. Why not?
    Mr. Morton. Because that is not what we are trying to 
cover.
    Mr. Gowdy. What is the difference between landlord-tenant 
cases and personal injury cases?
    Mr. Morton. This was largely focused on trying to allow 
people to vindicate important civil rights.
    Mr. Gowdy. Well, let me say this in conclusion, Mr. 
Chairman. Mr. Morton, I have great respect for what you do. I 
have great respect for your former job. The thing that 
disappoints me the most is, whether it is real or perceived, it 
is the politicization of the criminal justice system. That is 
what frustrates me. I hope that is not what is happening here.
    Mr. Gallegly. The time of the gentleman has expired.
    Mr. King.
    Mr. King. Thank you, Mr. Chairman; and, Director, I 
appreciate your testimony here.
    Just to pick up a little bit, one of my curiosities that 
has emerged as I listen to your testimony and you talked about 
how the idea of prosecutorial discretion was developed by you, 
by the White House, and also by the Secretary. And so I would 
see that then as a new name at the White House, Cecilia Munoz. 
And also then I am going to say you, Cecilia Munoz, and Janet 
Napolitano would be the three principals I have in mind when I 
hear that testimony.
    What was the genesis of the idea? Did one of the three of 
you present this? Or where did it come from originally?
    Mr. Morton. Well, first of all, it is important to remember 
the agency has issued prosecutorial discretion memoranda for as 
long as it has been around, including its predecessor agency. 
So the idea that this is something that we cooked up, is brand 
new, wouldn't be fair.
    Mr. King. Let me just suggest then--and I will pull this 
out of my memory. It seems about a year ago I remember reading 
news articles about the subject of this discretion, but it was 
addressed as the Department of Homeland Security looking to 
find a way to grant this as a blanket discretion rather than an 
individual discretion that you have spoken to today. Do you 
recall that dialogue being in the media roughly a year ago?
    Mr. Morton. I do. It wasn't about ICE in particular. But, 
yes, I do.
    Mr. King. Then so taking you back to that period of time, I 
would say that might be something new to talk about, a blanket 
prosecutorial discretion proposal. But where did the genesis of 
that idea come from?
    Mr. Morton. Well, I don't think that there was ever 
discussions at the Department of Homeland Security at the 
secretarial level for blanket amnesty or----
    Mr. King. Nor from the White House, Cecilia Munoz?
    Mr. Morton. Or from the White House that I am aware of. In 
fact, my understanding and my direct knowledge is that the 
Secretary is opposed to it. I am opposed to it, that we don't 
support administrative amnesty.
    Mr. King. There was a personality that was a driving force 
behind this concept. Is that yours? Or is it--you are a driving 
force and then Cecilia Munoz came into this in that fashion? Or 
was it then initiated out of the White House and reflected back 
to you?
    Mr. Morton. No. I felt that we needed to clarify our 
prosecutorial discretion memoranda to support the earlier 
memorandum that I issued on our civil enforcement priorities. 
But this is Administration policy; and, obviously, as such, 
this was important to the Secretary and the Department and to 
the White House. And as the Secretary's letter----
    Mr. King [continuing]. Recognizes Administration policy, 
why?
    Mr. Morton. The Secretary's letter to the various Senators 
on this subject makes it clear that this Administration's 
policy is about coming up with a set of rational enforcement 
priorities when it comes to immigration enforcement. And that 
is what this is all about.
    Mr. King. Let me go in a little bit different way. And that 
is there was some discussion, questions from the other side 
about the resources needed to bring about enforcement. And your 
response was back to, if we were going to deport 11 or so 
million people, the resources that it would take.
    But if we were just going to apply the resources at the 
border so that every interdiction that we come across could 
actually be prosecuted, have you looked at the resources 
necessary to have the judges, the prosecutors, and the prison 
beds in order to follow through with an ability to do 100 
percent enforcement on the southern border?
    Mr. Morton. I have not, largely because the immediate 
responsibility for border control is with my sister agency, 
Customs and Border Protection. We support them with detention 
and administrative removal powers, but the basic responsibility 
is with CBP, not with ICE.
    Mr. King. Yes. And, as you said, you support and you are in 
that area and they do look to you as a--let me just say your 
connection that has to do with the national policy standpoint.
    Have you come before Congress? Have you or are you aware of 
the Border Patrol asking for those resources to provide 100 
percent enforcement on the border? I would think you would have 
to collaborate to come up with that number.
    Mr. Morton. I have not testified or come before Congress on 
CBP's appropriation. As I note in my earlier testimony, the 
President's request for ICE's budget is the highest it has ever 
been, and Congress has appropriated that money.
    Mr. King. If we had the ability to actually leverage full 
enforcement at the border, then it would be actually a 
deterrent effect.
    Mr. Morton. Absolutely.
    Mr. King. And we hear some testimony that goes all over the 
map, but we know we are not interdicting half of those that 
come across.
    Another question: Illegal drugs that are interdicted at the 
border, are they up or down over the last 2, 3, 4 years?
    Mr. Morton. I believe the seizures that CBP is making are 
up.
    Mr. King. And deaths in the Arizona desert?
    Mr. Morton. I can't speak to that. That is really a CBP 
issue. I do know that CBP's apprehensions along the border are 
at record lows.
    Mr. King. So I would just suggest this question is in my 
mind, and that is that there are two ways to interpret the 
interdictions of CBP on the border. One of them is that there 
are fewer people crossing the border, and the other one is that 
they are stopping fewer people that are crossing the border in 
similar numbers. And I would ask you if you would pay close 
attention to the volume of the drugs that are being interdicted 
at the border as a better indicator of how much illegal border 
crossing is going on and looking at the deaths in the Arizona 
desert as another measure on that, those things are not--they 
aren't affected directly by whether or not there is a real 
focus on the interdiction at the border. I mean, the drugs are. 
The drugs are. And they are doing I think a lot of work to 
enforce the illegal drugs that are transported across the 
border. But I would suggest that that is a reliable indicator, 
and the deaths in the Arizona desert are a reliable indicator, 
and the interdictions of individuals just for border crossing 
may not be.
    Thank you, Mr. Director.
    Mr. Gallegly. The gentleman's time has expired.
    Mr. Morton, thank you for your testimony today and thank 
you for coming in. I am sure we will be working together. At 
least as it relates to the issues you are dealing with, you 
have job security.
    At this time, we will call up the second panel.
    Mr. Morton. Thank you, Mr. Chairman.
    Mr. Gallegly. Our witnesses on panel two:
    First, Mr. Chris Crane currently serves as the President of 
the National Immigration and Customs Enforcement Council, 118 
American Federation of Government Employees. He has worked as 
an immigration enforcement agent for the U.S. Immigration and 
Customs Enforcement, known as ICE, at the Department of 
Homeland Security since the year 2003. In his capacity as an 
immigration enforcement officer, he has worked in the criminal 
alien program for approximately 5 years and has also served as 
a member of the ICE Fugitive Operations Team. Prior to his 
service at ICE, Mr. Crane served for 11 years in the United 
States Marine Corps.
    Our second witness is Mr. David Rivkin. He is a partner at 
Baker & Hostetler here in Washington, D.C. Mr. Rivkin has a 
lengthy career, distinguished service under Presidents Ronald 
Reagan and George Herbert Walker Bush in the U.S. Department of 
Justice and the U.S. Department of Energy. He is a member of 
the Council on Foreign Relations. Prior to embarking on a legal 
career, Mr. Rivkin worked as a defense and foreign policy 
analyst. Mr. Rivkin earned his BSFS and M.A. at Georgetown 
University and his J.D. from Columbia.
    Our third witness is Mr. Ray Tranchant. Mr. Tranchant is 
currently a Director at the Advanced Technology Center for 
Tidewater Community College located in Virginia Beach. His 
advocacy to reform or enforce immigration laws has achieved 
national attention. Mr. Tranchant graduated from the United 
States Naval Academy and flew the F-4J and F-14A aircraft 
during multiple operations, including the Iranian hostage 
crisis and the war in Lebanon. After retirement, Mr. Tranchant 
became an educator in the public schools of Virginia and an 
adjunct professor at Cambridge College. Mr. Tranchant received 
his B.S. and master's degree from Old Dominion University.
    And our fourth witness today, Mr. Paul Virtue, is partner 
at Baker & McKenzie here in Washington. Prior to his law firm, 
he served as executive associate commissioner and general 
counsel of the U.S. Immigration and Naturalization Service. He 
also participated in drafting the immigration provisions of the 
North American Free Trade Agreement. Mr. Virtue earned his B.S. 
from West Virginia University and his J.D. from West Virginia 
University College of Law.
    Welcome, gentlemen.
    We have a situation here where we are likely to be called 
for votes in about a half hour, 35 minutes. So we will be 
particularly careful to try to stay within our time limits, and 
I appreciate all of you being here.
    Mr. Crane.

             TESTIMONY OF CHRIS CRANE, PRESIDENT, 
                      NATIONAL ICE COUNCIL

    Mr. Crane. Good afternoon, Chairman Gallegly, Members of 
the Committee.
    While many of ICE's policies and practices concerning--I 
have chosen to devote my time today discussing the best 
practices----
    Mr. Gallegly. Mr. Crane, is your microphone on?
    Mr. Crane. Thank you. Sorry about that.
    When I last testified before the Subcommittee on July 25, 
2011, I reported, among other things, that ICE enforcement 
removal officers and agents in the field alleged that unwritten 
directives from ICE headquarters had been issued nationwide 
ordering officers not to arrest aliens unless it was confirmed 
that the alien had received a prior conviction for a criminal 
offense. Aliens who cannot be arrested included but were not 
limited to ICE fugitives who had been ordered deported by a 
Federal immigration judge as well as aliens who had illegally 
reentered the United States after deportation, a Federal 
felony.
    ICE officers and agents also allege that they were not 
permitted to arrest or even speak to confirmed or suspected 
illegal aliens encountered in the field during operations and 
were prohibited from running standard criminal records checks 
for wants and warrants.
    First, I would like to thank Chairman Smith and his staff 
for working with the union regarding this matter after the July 
25th hearing. Chairman Smith provided us with the opportunity 
to bring officers forward as witnesses. We were also able to 
turn over several internal ICE documents which appear to not 
only verify that these activities did in fact take place but 
also named several senior level ICE managers allegedly involved 
in issuing the directives nationwide.
    Second, I would like to address the impact and 
effectiveness of these types of orders. I have never heard of 
any law enforcement agency in the Nation that prohibits its 
officers from even speaking to or interviewing individuals who 
are inside a house in which the officers are attempting to 
effect an arrest. From a law enforcement standpoint, what could 
be the possible benefit? The only purpose of an order such as 
this is to prevent officers from making arrests, which ICE 
leadership has allegedly stated is its goal.
    However, these directives not only prevent the arrest of 
noncriminal aliens but also prevent the identification and 
arrest of very dangerous criminals, potentially individuals 
involved in terrorist activities. It not only prevents officers 
from talking to and arresting persons who may be wanted for 
crimes but also individuals who are being victimized and in 
need of assistance.
    Certainly anyone can see that these practices are contrary 
to effective law enforcement practice and place the public at 
risk. Many officers will tell you that the majority of their 
best arrests, the arrests that most benefit public safety, come 
from unintended encounters with criminal aliens in the course 
of looking for a different target in the field.
    Of course, these practices also place our officers at risk. 
Nothing that I could ever say here today can capture the 
dynamics as they unfold when a door opens and our officers 
enter a house that they have never been in before. It is 
dangerous. Officers don't know who is in the house or what they 
are capable of doing.
    Problems often arise that require officers to remain in a 
house for extended periods. Officers on the scene must have the 
ability to provide for their own safety. They should never be 
prohibited from talking to people at the scene, conducting 
interviews as needed, running appropriate background checks, or 
even making additional arrests.
    In terms of better utilizing limited resources, these types 
of practices clearly do not achieve that goal. As discussed 
earlier, arrest numbers for serious offenders will fall well 
below the potential as ICE prohibitions on speaking to aliens 
or running criminal records checks in the field will prevent 
the identification and arrests of many of the serious 
offenders. Ordering officers to walk away from and not arrest 
ICE fugitives and prior deports who have been located in the 
field is obviously a blatant waste of officer resources and 
undermines ICE's mission to enforce warrants of deportation and 
the Nation's immigration laws.
    In conclusion, the inability of ICE officers and agents to 
perform their duties reaches far beyond the officer allegations 
that I have cited today. During the last 3 years, ICE officers 
and agents describe what many call a roller coaster of arrest 
authority that has changed from month to month, week to week, 
and, at times, from day to day. Officers, agents, and field 
managers express concern that effective law enforcement and 
public safety have taken a back seat to attempts to satisfy 
immigrants' advocacy groups.
    We commend this Committee's efforts to bring oversight to 
the activities of this troubled agency and unconditionally 
commit our resources to this or any future inquiries made by 
this honorable body. Thank you for allowing me to speak on 
behalf of ICE employees.
    This concludes my testimony, and I will answer any 
questions.
    [The prepared statement of Mr. Crane follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Gallegly. Mr. Rivkin.

          TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER, 
             BAKER & HOSTETLER, LLP, WASHINGTON, DC

    Mr. Rivkin. Mr. Chairman, Members of the Committee, it is a 
pleasure to appear before you.
    I think we can all agree that no President, no 
Administration can hope to expel every undocumented alien 
present in the United States now, which is perhaps upwards of 
11 million individuals. Human and financial resources to 
identify, apprehend, process, and probably deport millions of 
illegal aliens have been lacking for years; and, to some 
extent, so has also been the case of political will to do so. 
Now, in this environment, immigration enforcement, entities in 
both Democrat and Republican administrations performed as well 
as they could, given the available resources. Still, I think 
records show that millions of illegal aliens have been deported 
over the years. While many of them were persons convicted of 
serious nonimmigration-related criminal offenses, most 
deportees were not in that category.
    The Administration's new policy unveiled in various ways, 
in addition to the memos that were discussed earlier, a number 
of letters from Secretary Napolitano to different Members of 
Congress, in my view is fundamentally different from this 
imperfect enforcement record of previous Administrations. This 
Administration has basically stated that, henceforth, 
deportation efforts would be focused solely on aliens with 
nonimmigration-related criminal records and no enforcement 
resources will be expended on other types of cases. That means, 
of course, that undocumented individuals who have avoided 
apprehension at the border and have not been convicted of 
serious nonimmigration offenses arriving into the United States 
will no longer face the prospect of deportation.
    Far from merely prioritizing the use of limited resources, 
the Administration's policy effectively rewrites the law. It 
means that the vast majority of undocumented aliens no longer 
need to fear immigration law enforcement. It applies even to 
illegal aliens who are now in deportation proceedings.
    Not to use defense of a term, but the President has, in 
effect, suspended operation of those laws with regard to a very 
large identifiable class of offenders. And my primary concern 
is not even the policy impact of that. But it clearly exceeds 
his constitutional authority and sets an extremely unfortunate 
record.
    Now we have heard a lot about enforcement priorities; and, 
of course, we all recognize that Federal agencies do establish 
enforcement priorities because of a lack of resources. And 
particularly the case with law enforcement agencies, they do 
exercise prosecutorial discretion and the President can 
properly inform the exercise of such discretion. But that 
authority is not boundless.
    While the President, for example, can legitimately decide 
in a post-9/11 environment most of the FBI's limited resources 
should be dedicated to the investigation and prosecution of 
terrorism cases, he cannot very well decree that no enforcement 
resources whatsoever, for example, be allocated to securities 
fraud or counterfeiting. The reason for it is very simple. 
Because the executive branch has exclusive license to enforce 
Federal criminal laws on our constitutional system, the 
President to say so would effectively decriminalize securities 
fraud and counterfeiting, derogating from the Federal statutes. 
And of course that is fundamentally violative of the 
constitutional requirements the President has to take care of, 
that the laws be faithfully executed.
    And, by the way, the Framers did not include that 
imperative language by accident. Exactly 100 years before the 
Constitution came into effect in 1788, King James II of Britain 
was deposed in large part because he claimed the legal right to 
suspend generally, or dispense with in individual cases, laws 
enacted by Parliament. The Framers knew this history very well 
and gave the President no discretion but to execute laws passed 
by Congress.
    And as the Supreme Court has stated in a case called 
Kendall v. United States in 1838--quite a long time ago--the 
power to dispense with laws enacted by Congress has no 
countenance for its support in any part of the Constitution.
    So, in my view, the Administration has effectively 
announced its intent to suspend and dispense with the 
immigration law. That suspension is every bit as broad as any 
attempted by the British monarchy and is equally illegal. The 
President is entitled to establish enforcement priorities, but 
his ultimate goal must be the implementation of a law enacted 
by Congress. If a President disagrees with this law, his sole 
recourse is to convince Congress to change it.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Rivkin follows:]

    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Gallegly. Thank you very much, Mr. Rivkin.
    Mr. Tranchant.

   TESTIMONY OF RAY TRANCHANT, DIRECTOR, ADVANCED TECHNOLOGY 
              CENTER, TIDEWATER COMMUNITY COLLEGE

    Mr. Tranchant. Thank you.
    As I can tell, the current position on illegal immigration 
by the Obama administration--and I am gleaning this from press 
releases and all that I can read about it--is that there are 
three things. He is for amnesty with a secured border to slow 
down the flow; promotion of the DREAM Act that somehow 
translates to a 14th Amendment right for children; and amnesty 
with a path to citizenship that is undefined at this time. This 
all sounds like a plan with no details or like a wish list 
until another election.
    The American leadership must either continue to enforce the 
laws that the current executive branch selectively ignores or 
encourage a movement to change them. After all, laws are 
nothing. Enforcement is everything.
    Amnesty diminishes the allegiance of the immigrants who 
follow the legal process. It questions our approach to national 
security, increases crime, promotes tax evasion, and has public 
health challenges, of course. Currently, there are millions of 
people with no fingerprints on record, no IDs, birth records, 
health records, visas, passports. This causes confusion and 
worry during a great recession.
    During the Great Depression in 1932, more people left the 
country than immigrated. Hopefully, history doesn't repeat 
itself again.
    It hurt the U.S. when my hero, Ronald Reagan, favored 
amnesty for illegal immigrants during the Cuban boat crisis in 
1986. But let me finish. It caused all the havoc that Castro 
intended in a much smaller scale than today. Fidel cleaned out 
the jails and allowed Cubans to board boats, encouraged them to 
leave in a risky attempt to gain a better life 90 miles away. 
After all, times were tough in Cuba back then. There were a 
million immigrants that we took in in 1986, a number far less 
than the estimated 14 million--I disagree with the other 
figures--14 million today that seek amnesty.
    Once we waved that magic wand, they were not required to 
speak English. They did not have to have knowledge of our 
government. Reagan's rationale then was covered under the 1980 
Refugee Act. They were boat people. They were ``refugees.'' He 
couldn't just let them die. I agree. If they were sent back to 
Cuba, who knows what would have happened.
    So in the past few years, former President Fox of Mexico 
promoted a similar move. He encouraged the northern part of 
Mexico to ``seek their fortune'' by crossing the border. Today, 
President Calderon is more cooperative with the United States--
we know that from hearings--to stop the flow, but narco 
terrorism is his biggest challenge and ours as well. Last year, 
3,000 Mexicans were murdered no more than 300 feet from the 
U.S. border. It gravely affects the United States as well, not 
to mention the Border Patrol agent who was shot and killed 
during the last Christmas holiday.
    These agents risk their lives daily protecting a broken 
system. I watch TV, just like you. I watch shows like Border 
Wars on Nat Geo and other reality shows, and I am shocked at 
how undermanned these people are.
    Can the United States Government do a better job securing 
the border? Listen, sure it can. For example, take Area 51 in 
Nevada. It is a secure governmental site the size of a small 
state. I have seen it, and it is impenetrable. Unwelcome 
visitors there will be stopped and arrested in the name of 
national security.
    My parents were immigrants. They had to speak English for 
safety reasons in the factories and coal mines. They had to 
pass a citizenship test, stay out of trouble, have a public 
health record, birth record to verify their age and lineage, 
pay taxes on all their earnings, and had total buy-in on the 
American Dream.
    People who break in and come illegally don't possess the 
same buy-in. I just don't believe it.
    Immigration and Customs Enforcement continues to prioritize 
enforcement of the laws by the hottest crisis of the moment. 
They are getting support deporting more criminals, sure, but 
are still unable to keep on top of these numbers.
    My late daughter Tessa and her friend Allison Kunhardt were 
killed in Virginia Beach by a repeat DUI offender, an illegal 
with a fake driver's license from Florida. He was handed off 
many times and was not a priority call to ICE for deportation. 
Tessa has a grandmother as well. Her name is Anita Carson from 
Chihuahua, Mexico. Tessa's ``Noni'' was an immigrant who worked 
on B-17s during World War II in San Diego. And I will tell you 
this. She is appalled that migrants would get the same rights 
to citizenship by sneaking across the border. She is Hispanic. 
The Hispanics I know generally are concerned about their 
America as well and worry that the current Administration 
focuses on potential Hispanic boats and not about American 
Hispanic safety and prosperity.
    Once again, these and many more victims of crimes committed 
by illegals were lost in the justice system, sometimes 
invisible or awaiting under a deportation order. There are 
many, many more stories like this. In sanctuary cities, ICE 
doesn't even get a call, which is another problem driven by 
politics. So how long will it be until America finds a fair 
solution to this?
    Just one mention, finally, Sunday, on November 6th, there 
will be a national day of remembrance for victims of illegal 
immigrants in cities all over America. The gatherings will pay 
homage to those who have lost their lives to the hands of 
illegal foreigners to show in silence in candlelight vigils 
that they will never be forgotten.
    I want to quote one thing before I close. In 1965, the 
United States Congress enacted a law that stopped putting a 
ceiling on immigration. 1965. It was in conjunction at the same 
time with the civil rights movement. After all, why would we 
put a limit on bringing people into our country? That was the 
whole idea of the law.
    And here is what Senator Kennedy said, God rest his soul: 
The bill will not flood our cities with immigrants. It will not 
upset the ethnic mix of our society. It will not relax the 
standards of admission. It will not cause American workers to 
lose their jobs.
    Well, I am sorry. He was wrong. So we are in a little bit 
of a pickle here, aren't we? We can't send them back. It costs 
too much to keep them. It costs $100 a day. Of course, a plane 
ticket would cost $200, wouldn't it? Back home.
    Thank you, and I will answer any questions that you have.
    [The prepared statement of Mr. Tranchant follows:]

    
    
    
    
    
    
    
    
                               __________

    Mr. Gallegly. Thank you Mr. Tranchant.
    Mr. Virtue.

              TESTIMONY OF PAUL VIRTUE, PARTNER, 
                     BAKER & McKENZIE, LLP

    Mr. Virtue. Thank you, Mr. Chairman, Ranking Member 
Lofgren, Members of the Subcommittee. Thank you for the 
opportunity to appear before you today to share my perspective 
on the important role prosecutorial discretion plays in the 
enforcement of our Nation's immigration laws. The views I 
express today and in my written testimony are my own. I am not 
speaking on behalf of my law firm or any of its clients.
    Having witnessed immigration enforcement firsthand from the 
Reagan administration to the Obama administration, I have to 
say that the emphasis on removal of noncitizens and the 
dedication of the officers responsible for immigration 
enforcement have never been higher. But even with the 
impressive statistics recited by Director Morton here today, 
immigration enforcement resources are not limitless. To get the 
most of those resources in terms of protecting the border, 
promoting national security, and ensuring public safety, the 
executive branch has to establish enforcement priorities. Every 
Administration has done so.
    The process of establishing enforcement priorities 
necessarily involves identifying characteristics that makes 
some cases a higher priority than others. There are trade-offs. 
For example, the decision by INS during the 1990's to focus on 
the removal of aliens who have been convicted of crimes 
resulted in a lower priority and fewer resources being applied 
to work site enforcement operations.
    Even at the seemingly high rate of 400,000 removals per 
year that we heard today, judgments have to be made on a case-
by-case basis and under reasonable guidelines to ensure that 
the goals of homeland security border protection and public 
safety are met. The uniform application of those guidelines law 
through enforcement decisions is, in my view, as important to 
good government as the authority to arrest, detain, charge, and 
remove noncitizens.
    The authority of law enforcement agencies to exercise 
discretion in deciding what cases to investigate and prosecute 
under existing civil and criminal law is fundamental to the 
American legal system. Every prosecutor and police officer in 
the Nation makes daily decisions about how to allocate 
enforcement resources based on judgments about which cases are 
the most egregious, which cases have the strongest evidence, 
which cases should be settled, and which cases should be 
brought forward to trial, for example. Border Patrol agents, 
immigration officers, and DHS attorneys must do the same every 
day.
    The Supreme Court has made it clear that an agency's 
decision not to prosecute or enforce, whether through civil or 
criminal process, is a decision generally committed to the 
agency's absolute discretion.
    In Heckler v. Chaney, the Supreme Court said: An agency 
generally cannot act against each technical violation of the 
statute it is charged with enforcing. The agency is far better 
equipped than the courts to deal with the many variables 
involved in the proper ordering of its priorities. Finally, we 
recognize that an agency's refusal to institute proceedings 
shares to some extent the characteristics of the decision of a 
prosecutor in the executive branch not to indict, a decision 
which has long been regarded as the special province of the 
executive branch, inasmuch as it is the executive who is 
charged by the Constitution to take care that the laws be 
faithfully executed.
    On June 17 this year, John Morton, Director of Immigration 
and Customs Enforcement, issued two memoranda to agency 
personnel clarifying the role of prosecutorial discretion and 
immigration agency enforcement actions. Neither document 
represents in any respect a change to existing law or a 
departure from permissible policy but instead they clarify 
responsibilities inherent in the exercise of prosecutorial 
discretion.
    The first memorandum, entitled Exercising Prosecutorial 
Discretion Consistent with the Civil Immigration Enforcement 
Priorities of the Agency for the Apprehension, Detention, and 
Removal of Aliens, builds upon and cites prior prosecutorial 
discretion guidance reaching back to 1976 and outlines the 
nature of prosecutorial discretion, the personnel in power to 
exercise that discretion, and both positive and negative 
factors to consider in deciding whether to proceed with 
immigration enforcement action.
    The second memorandum, which is essentially a reminder that 
the prosecution of certain victims, witnesses, and plaintiffs 
is against ICE policy.
    On August 18, 2011, in a letter to Senator Dick Durbin and 
21 other Senators, DHS Secretary Janet Napolitano announced a 
new process for implementation of the June 17, 2011, 
prosecutorial discretion memoranda. The letter included a 
background two-pager that summarized DHS efforts to date of 
establishing enforcement priorities and described the role of a 
new interagency working group tasked with reviewing individual 
cases in removal proceedings.
    None of these memoranda established categorical decision to 
refrain from enforcement, and each of them cites the need to 
make these decisions on a case-by-case basis.
    Thank you again for this opportunity. I welcome your 
questions.
    [The prepared statement of Mr. Virtue follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Gallegly. Thank you, Mr. Virtue.
    Mr. Crane, in testimony that you made back on June 25 of 
this year, ICE union leaders issued a vote of no confidence in 
ICE Director John Morton. You state now that the ICE union 
remains more committed than ever in no confidence. Can you 
explain that in brief detail?
    Mr. Crane. Yes, sir. I think there are a lot of issues that 
don't necessarily pertain to this hearing, but I think there 
are probably things that maybe the Members should know.
    ICE is 208th in employee job satisfaction and morale. It is 
a horrific place to work. Retaliation is rampant. The treatment 
of U.S. citizens that work for that agency in terms of my 
experience is worse than what illegal aliens have ever alleged. 
I mean, literally, you know, acting like bullies to females, 
pregnant mothers, putting children in hospitals, you know, 
pregnant mothers. It is an ugly place to work.
    And Director Morton has done zero to make that change, to 
turn that around. It is just an awful place to work.
    Now in terms of measures such as this, there is definitely 
a feeling in the field amongst our officers and agents that he 
does not have our back, that his intentions are not to create 
an agency with the intention of having stronger law enforcement 
but, instead, catering to special interest groups.
    And if you look at practically every single significant 
enforcement policy ICE has put out in the last 3 years, the 
union has been excluded from every single policy. That means 
our officers and our agents and our employees, they are 
excluded from everything. Performance-based detention standards 
alone, the agencies worked on for 3 years, but they have 
refused to bring the union in to bring our expertise to the 
table; and the end result has been, 3 years later, we don't 
have a performance-based detention standard. And the one that 
we do have is more dangerous perhaps than anything that we have 
had in the past. It places the lives of detainees at more risk 
as well as officers at more risk than our previous standards 
did. So we have a lot of reasons why we still stand behind that 
vote of no confidence.
    Mr. Gallegly. Thank you, Mr. Crane.
    Mr. Rivkin, the 3- and 10-year bars--something I am very 
well aware of from 1995--to the admissions of aliens who had 
formerly been in the U.S. illegally were designed to combat 
visa overstays and provide a real sanction for the violation of 
our immigration laws. The Administration is now trying to get 
around the 3- and 10-year bars that were signed into law by 
President Clinton by simply paroling in place illegal 
immigrants with Green Card applications so they never have to 
leave the U.S. Do you consider this a blatant attempt by the 
Administration to disregard an act of Congress?
    Mr. Rivkin.That is correct, Mr. Chairman. And, again, 
particularly undertaken in the broader context.
    And it is interesting--we had a lot of discussions again 
earlier about prosecutorial discretion. What troubles me the 
most on not just the memos but clear statements by the 
Administration that amount to a proposition that lower-priority 
cases--I am mostly citing the letter by Secretary Napolitano--
no resources would be spent on lower-priority cases.
    And, again, it is easy to fix this problem. All the 
Administration would have to do is to step forward and say, no, 
it is not true. That could be done by the President. It could 
be done by Secretary Napolitano. We are going to spend most of 
our enforcement priorities on these high-priority cases, but 
enough would be spent on other categories. That is a legitimate 
prosecutorial discretion.
    Saying we will spend no resources--going back to my analogy 
about decriminalizing counterfeiting and securities frauds--
saying we are going to spend no resources on lower-priority 
cases is not any kind of prosecutorial discretion I can 
recognize. It is a suspending power and is profoundly 
unconstitutional and very troubling.
    Mr. Gallegly. Thank you very much, Mr. Rivkin.
    Mr. Virtue, if you were at ICE, would you have approved the 
Morton memo? And why didn't the Clinton administration issue 
such memos, opening up administrative amnesty to millions of 
illegal immigrants?
    Mr. Virtue. Mr. Chairman, I don't necessarily agree with 
the premise that this is opening up amnesty for millions of 
illegal immigrants. There was a memorandum establishing 
parameters for prosecutorial discretion that was issued during 
the Clinton administration. It was issued by Commissioner 
Meissner in 2000, in fact, in response to a letter from Members 
of Congress, asking that such parameters be developed in order 
for discretion to be exercised in appropriate cases.
    Mr. Gallegly. Well, I see my red light is on, and I am 
going to respect it. But I have to respectfully question the 
definition of amnesty, with all due respect.
    Ms. Lofgren.
    Ms. Lofgren. Yes. Thank you.
    I think I will take up where Mr. Gallegly left off.
    Mr. Virtue, you were--and it is good to see you again. I 
remember when you were with the Department and Ms. Meissner was 
the Commissioner and we had a lot of back and forth at the 
time, not always a positive one on the part of the Committee.
    But you have heard the testimony, that the suggestion is 
that no enforcement resources will be expended on these cases 
and, therefore, this is very different than past efforts that 
didn't cause any problem. Is that your reading of Mr. Morton's 
memo?
    Mr. Virtue. No, it is really not. I just respectfully 
disagree with that representation about the three memos, 
actually. But I just have to question why the Morton memo would 
include some 20 different factors for consideration if the 
decision had been made by the Administration simply to focus 
all resources on the removal of criminal aliens and none on any 
other removal actions. That could have been a one-page, a half-
page memorandum.
    Ms. Lofgren. In your written testimony, you talk about the 
1996 immigration law that expanded the grounds of removal and 
substantially eliminated the ability of immigration judges to 
grant a relief from removal on a case-by-case basis. Do you 
think it is fair to say that the elimination of the judicial 
authority to grant relief was responsible for the kinds of 
cases of so-called unjustifiable hardship that was referenced 
in the letter, the bipartisan letter that Congressman Smith 
signed when you were general counsel?
    Mr. Virtue. Yes. I have no doubt about that, that it was, 
in fact--the restrictions were a product of the 1996 act that 
created exactly some of those compelling cases that we were 
being asked to address.
    Ms. Lofgren. So it would be correct then--or you will tell 
me if this is incorrect--that the letter that Mr. Smith signed 
and Mr. Sensenbrenner signed asking the Administration when you 
were general counsel to issue prosecutorial discretion guidance 
was actually asking the Administration to use its inherent 
authority to alleviate unacceptable hardship that resulted from 
those 1996 changes in the law?
    Mr. Virtue. Well, that is right. There would seem to have 
been a clear understanding on the part of Mr. Smith and the 
authors of the letter that the Administration did have--that 
the executive does have that prosecutorial discretion and that 
there are appropriate cases in which it should be exercised.
    Ms. Lofgren. Now since I have been a Member of the 
Judiciary Committee the entire time I have been in Congress and 
certainly since 1996, I don't recall that we have made any 
changes to the act that provides meaningful discretion to the 
immigration judges since the 1996 act. Are you aware of any?
    Mr. Virtue. No, I am not.
    Ms. Lofgren. So the widespread agreement that some 
deportations were unfair and resulted in unjustifiable 
hardship--that is a direct quote from the letter--would not be 
changed in terms of what the judges could do about those cases.
    Mr. Virtue. No, that is right. The law simply hasn't 
changed in that regard since 1996.
    Ms. Lofgren. Now one of the things that I was interested 
in--and I am someone who has expressed concern, frankly, about 
the level of removals when we have failed to reform the system 
that everybody says is broken--and I think most people do--that 
it would be better instead of just barreling down on 
enforcement to actually fix the problems in the law that are 
creating some of these problems.
    But the memo actually talked about fairness to the 
immigrant--I mean the letter that Mr. Smith sent. But the memo 
that Mr. Morton sent doesn't talk about fairness to the 
immigrant at all. It just talks about public safety and 
priorities from a law enforcement point of view. Isn't that 
correct?
    Mr. Virtue. Yes. And that is my understanding of the 
purpose of the memo, was to exactly establish those priorities 
for--on the enforcement side.
    Ms. Lofgren. So they would not actually--this memo wouldn't 
be responsive to Mr. Smith's request for leniency. It is 
actually a law enforcement priority memo.
    Mr. Virtue. Exactly. And in keeping with a relatively long 
tradition, dating back to 1976, of issuing such guidance to 
officers, yes.
    Ms. Lofgren. Well, I think that is very helpful.
    I am just going to make one comment. I see my time is 
almost through, but I would like to ask unanimous consent to 
put into the record the transcript from our hearing on the HALT 
Act.
    And I note that, at that time, Mr. Crane promised me twice 
to get me names of individuals in the Department who he had 
alleged had ordered the law not to be followed.
    I heard today in his testimony that he had had meetings--
and I am calling them secret meetings because it was the first 
that I heard about them, was during the testimony with the 
majority.
    Honestly, since I was promised and we called over to the 
union yesterday to find out where was this information and was 
told it wasn't forthcoming, I don't believe you, Mr. Crane, 
because you did not live up to what you said you would do. And 
I would just ask the majority--not on the spot because, 
obviously, this isn't the right forum--but if there is 
information that is being kept, that is inappropriate. And I 
would certainly hope that after this hearing we might have our 
counsels sit down and see what kind of secret documents have 
allegedly been provided.
    And with that, I yield back Mr. Chairman.
    Mr. Gallegly. Without objection, that will be part of the 
record of the hearing.*
---------------------------------------------------------------------------
    *The inserted material is excerpted from the printed record of the 
Subcommittee's hearing held on July 26, 2011 on the ``HALT Act.'' The 
hearing, in its entirety, can be accessed at: 
http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg67575/pdf/CHRG-
112hhrg67575.pdf.
---------------------------------------------------------------------------
    [The information referred to follows:]
  Excerpted Material from hearing held on July 26, 2011 on the ``HALT 
                                 Act''







                               __________

    Mr. Gallegly. Mr. King.
    Mr. King. Thank you, Mr. Chairman.
    I would turn first to Mr. Crane and ask you, thinking of 
the exchange with Director Morton as the previous panel, do you 
know of cases that are open-and-shut cases down in the near 
border area that aren't prosecuted due to a lack of 
prosecutors, judges, and prison beds?
    Mr. Crane. I am sorry, sir. I had a problem hearing you. 
Could you repeat the question?
    Mr. King. Yes. Do you know of cases that are essentially 
open-and-shut made cases that are not prosecuted on the 
southern border because of a lack of the ability to prosecute, 
lack of judges, or a lack of prison beds?
    Mr. Crane. Are you talking about criminal prosecution for 
entry and re-entry?
    Mr. King. And also for illegal drug smuggling.
    Mr. Crane. The drug smuggling, I can't really speak to, 
sir. But as far as entry and illegal re-entry, absolutely. They 
don't have the judges down there to support it, nor do we 
anywhere in the United States.
    If I may, most of the cases that Director Morton spoke of 
out of those--I believe he quoted 10,000 prosecutions that we 
did last year. At least in our district, it pretty much has to 
be an aggravated felon for us to prosecute them. So while any 
person that reenters the United States gets a felony and they 
can be prosecuted, we are not prosecuting those people. They 
are only convicted aggravated felons, for the most part.
    Mr. King. And would you have an estimate as to what 
percentage we are prosecuting?
    Mr. Crane. No, sir.
    Mr. King. Does anyone have that data?
    Mr. Crane. I do not, sir.
    Mr. King. Does anyone have that data?
    Mr. Crane. They are pretty stingy with the numbers for us.
    Mr. King. I am going to suggest that that data has to 
exist, that we would have the interdiction numbers, and those 
interdiction numbers would be a strong indicator.
    I know that there are prosecutorial discretion cases 
involved here, too, a little bit off of what the primary 
subject has been. But I am boring in on this, that if we have 
such an ineffective prosecution that the perpetrators first get 
the message from ICE that if you aren't a threat to--let's say 
the political viability of the Administration is what it seems 
like to me--if you aren't a threat, we are not going to 
prosecute you. If you are committing a felony, we likely don't 
have the resources to prosecute you. So in both of these 
categories we hardly have any deterrent at all.
    Would you agree with that statement generally?
    Mr. Crane. I absolutely agree with that. And, as I have 
said in my previous statements, when we go into jails 
oftentimes, illegal aliens approach us, volunteering, begging 
us to deport them from the United States because they know that 
they will avoid prosecution. They will avoid jail time. We will 
send them back to Mexico or Central America, South America, 
wherever they came from, and they will be back in our 
communities within a week or two committing the same crimes 
that they were before. That border is not shut down, I can 
promise you that, not when those folks are able to come back a 
week later and be in the middle of the United States, 
committing crimes and apprehended by the police again.
    Mr. King. And the deterrent effect. I remember standing in 
a border station on the Arizona border and asking the question, 
how many times do you see a unique individual come through 
here? The answer I got back was 37--actually, 38. We ran the 
numbers, and it came out of the database at 27 in either case, 
27 times through the border and not having any enforcement. 
Does that number surprise you?
    Mr. Crane. No, sir. Not at all.
    Mr. King. Do you know of any bigger numbers than that?
    Mr. Crane. I don't know of any bigger numbers than that, 
but I definitely know about comparable numbers. I work on the 
interior of the country. We run the fingerprints. We get the 
recidivist hits. And they do. They come up with 20, 25 times 
that they have been apprehended at the border elsewhere and 
never even put into administrative proceedings and officially 
deported and only given voluntary removals.
    Mr. King. Do you ever get the sense when you go to work 
each day that you are handed a shovel to dig a hole and then 
fill it back up and punch out and go home?
    Mr. Crane. Yes, sir.
    Mr. King. I appreciate those answers to that.
    And as the clock is ticking, I would just comment that my 
frustration is I don't know how you have morale with that kind 
of a scenario if you can't measure success. But I will turn to 
Mr. Rivkin; and thank you, Mr. Crane.
    I will turn to Mr. Rivkin, your testimony about the 
constitutional question of this discretionary amnesty or 
administrative amnesty that we have. And your arguments are 
very clear to me and I think strong, that it is 
unconstitutional. What would you think of the prospects of 
litigating this?
    Mr. Rivkin. Unfortunately, most of the structural 
violations of separation of powers, I am not--it is not easy to 
gain standing. There are certainly insurmountable obstacles, 
but it doesn't mean that that is the right way to behave. And, 
again, it sets a horrible precedent.
    Let me just say briefly again, in many respects, it is a 
self-inflicted wound. It is not just those documents that you 
were talking about which, with all due respect to Mr. Virtue, 
if you look at it, it clearly excludes more or less 
categorically whole segments of illegal alien population.
    But when you read in every major newspaper that the 
Administration has given briefings, combined with letters by 
Napolitano, to various immigration rights groups which 
basically say the following categories of people would not be 
deported, that is a remarkable--I cannot think of any other 
instance in our history that the Administration has acted----
    You think about, can you have an environment section of the 
Justice Department say, because of resource constraints, we are 
not going to enforce the Clean Water Act, we are not going to 
enforce the Clean Air Act? That would be unprecedented.
    And, again, I would say the easiest way to fix it, at least 
in my opinion, is for the Administration to say, no, that is 
not what we are doing. We are going to deport individuals, 
maybe in small, fewer numbers, who have not committed 
criminal--nonimmigration related criminal law violations. But 
they are not saying it.
    So, in some sense, with all due respect to everybody here, 
it is in the open. You don't need to wait for a couple of years 
to see what the track record is. They are quite open about it, 
and I find it terribly disturbing.
    Mr. King. I thank you, Mr. Rivkin. And just in short 
conclusion, I would say that I appreciate all the witnesses' 
testimony and I would like to have time with Mr. Tranchant and 
we don't have, but your story is compelling as is your 
testimony. Thank you all, gentlemen, and I yield back.
    Mr. Gallegly. I thank the gentleman. Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Tranchant, I was a prosecutor in my former life and I 
want to tell you how much my heart broke at your testimony. And 
the real cost is impossible to measure, as you so eloquently 
put it, and I will continue to think of you and your family.
    Mr. Gowdy. Mr. Crane, were you here when Director Morton 
testified?
    Mr. Crane. Yes, sir.
    Mr. Gowdy. Were you given, as the White House was, an 
opportunity to provide input into the so-called prosecutorial 
discretion memos?
    Mr. Crane. None, sir, whatsoever. We actually met with the 
agency the day before they released the memo and they didn't 
even tell us it was coming out. So we heard about it from the 
news like everyone else.
    Mr. Gowdy. And what was the reaction of the line agents?
    Mr. Crane. Well, I think it is the same as it is today, 
sir. There is still a lot of confusion in the field. I know 
that Director Morton said that he had discussed this with field 
office directors. But I can promise you that that information 
is not making it to most of the rank and file officers out in 
the field as to what exactly we are supposed to do with this 
memo and how we are supposed to enforce it. So overall a lot of 
confusion and frustration.
    Mr. Gowdy. I shared with him as I will with you, and I will 
also thank you for your service as I did him, you know, 
politics is in everything. You can't--you can try to avoid it. 
You can run from it, but it is in almost everything. I just 
wonder if it is not too much to ask that we keep it out of the 
criminal justice system as best we can. It just strikes me that 
there is a political undertone to these memos. Am I wrong? Is 
it devoid of any politization; is this strictly a law 
enforcement resource priority issue or are there some political 
undertones that perhaps haven't been addressed?
    Mr. Crane. Well, as a union I can tell you on behalf of our 
officers and agents that we definitely believe this has 
political overtones. When you exclude your law enforcement 
officers, the folks that have the technical expertise in the 
field from, any kind of development of policies and you bring 
in special interest groups, which I know Director Morton said 
that groups weren't brought in for this, or at least to his 
knowledge, but I know they have been for previous policies, 
that has been the environment that we have existed in, and it 
seems very evident to us that it is about satisfying those 
groups and not developing sound law enforcement policies. We 
could be an important part of that. We could make that happen, 
but the Administration and Director Morton and Secretary 
Napolitano are not interested in that. And when we look at 
things like the discretionary--I'm sorry, the prosecutorial 
discretion memo, it is not good law enforcement, especially 
when you put it out in the field and don't even tell us how to 
enforce it or give us any guidance.
    Mr. Gowdy. I want to ask you about two things specifically. 
I was struck that there was a second memo that carved out 
exceptions for certain categories of civil litigants. That 
struck me as--"ironic'' may not be the right word but I 
probably can't use the right word in a public hearing. So let 
me ask you about part of your testimony. You created a fact 
pattern by which you could be executing a search warrant, 
executing an arrest warrant, and you are forbidden by policy 
from interacting with certain categories of people that are on 
the scene.
    Did I hear that correctly? Surely I did not.
    Mr. Crane. That is correct, sir. Actually we did provide 
some internal documents to Chairman Smith. He had actually 
invited me during the last testimony to do that. He was 
concerned about protecting the identities of our agents that 
might come forward because of the fear of retaliation.
    I am sorry, I lost my train of thought there for a second.
    Mr. Gowdy. We are talking about the execution and search 
warrants and whether or not you can interact with certain 
categories of people who are present at suspected crime scenes 
or whether you are forbidden by policy from being able to do 
that.
    Mr. Crane. Correct. Actually I have some statements written 
down on a piece of paper here that came from some of those 
documents. These are deputy associate directors, so they are at 
ICE headquarters, you know, top of the food chain. If the 
aliens you encounter are not criminals, they will not be 
arrested. I am telling you to walk away from a non-criminal 
fugitive--or am I telling to you walk away from a criminal or 
non-criminal fugitive reinstatement? Yes. Why are you wasting 
your time talking to everyone else in the house? Only targets 
will be arrested. There will be no collateral arrests of any 
sort.
    So when our officers go into the house at least during some 
of these operations they are being told, you will not talk to 
anyone in that house, you will get the target and you will get 
out. As I said in my testimony, that is where we make some of 
our most significant arrests with regard to public safety. I 
can't tell you how many times we go in a house even to get a 
non-criminal and end up walking out with two serious bad guys 
because in the past we really had prosecutorial discretion and 
we had the ability to do our jobs and question people and talk 
to people. And by doing so, like every other law enforcement in 
the country can, we were able to identify far more serious bad 
guys than we could ever do just looking for simple targets.
    Mr. Gowdy. Thank you, Special Agent. Thank you, Mr. 
Chairman.
    Mr. Gallegly. Thank you, Mr. Gowdy. The gentleman from 
Tyler, Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Chair. I just want to continue on 
that train of thought. With regard to information about 
instructions, if you go into a home to get someone, you are not 
to arrest anyone else in the home, was that information known 
in Arizona when they passed the law they did allowing local law 
enforcement to inquire of people whether or not--their legal 
status when they were detained for other reasons? Do you know 
when this first became public?
    Mr. Crane. I do not know the answer to that, sir.
    Mr. Gohmert. It seems like it ought to be a commendable 
thing when a State seeks to enforce the law. Because you know, 
the founding of the country was such that they thought people 
should be treated equally under the law, nobody was too good, 
nobody was too bad, everybody was to be treated equally under 
the law. And it seems like really we have degenerated into a 
Third World country where it is all about who you know. It is 
all about who is in power at the time as to who is going to be 
treated what way. And what disturbs me in the prosecutorial 
discretion, of course there is a million things that do, but 
particularly the term ``the person's criminal history, 
including arrests, prior convictions or outstanding arrests 
warrants.'' All of you understand that just in that one little 
phrase there is one of the factors that could be utilized to 
use discretion. There are all kinds of scenarios, there is all 
kinds of room for abuse here and you are talking to a guy who 
is a former judge.
    And Mr. Tranchant, my heart has gone out to you. I had as a 
judge presiding over felonies one case where a guy was in the 
courtroom and he had been indicted for a felony for driving 
while intoxicated, and when we get around to his case, turns 
out he had many DWIs or DUIs in some jurisdictions. But he 
finally got to me after he hit somebody, thank God he didn't 
kill them, and because he had been in jail so many times for 
DWI and had never been removed and because I am supposed to 
consider safety of the public, it seemed like he needed to be 
in prison, the man couldn't stop himself from drinking and 
driving. So I sent him to prison. And it was a matter of months 
he was back in my courtroom for another felony DWI. And when I 
inquired through the interpreter how he got back so fast, he 
said he was taken to the Texas-Mexico border and ordered to 
walk across and he did. And he waited around on the other side 
until those folks left, and then he went around the bridge and 
came back across immediately, came back to our county and got 
drunk and drove again.
    Now, I am really curious who would ultimately, Mr. Crane, 
if you know, anybody else knows, make the kind of call, gee, 
there is only nine DWIs so let's don't go after this guy yet. I 
sent the man to prison and it was only after he went to prison 
that within I think it was like 3 months he said they came and 
got him out of prison, took him to the border and told him to 
walk across and then he comes back later. Who makes those 
calls? Well, he's been in jail nine times, but now he is in 
prison so let's go get him out of prison so he can come back 
down to their county down the road. Who makes those calls? 
Anybody know?
    Mr. Crane. Those calls are made within the office generally 
by management officials. As officers we really don't have that 
power, and it tends to be a roller coaster from week to week, 
month to month as to whether or not we can actually apprehend 
them. I can tell you this. As officers we have been screaming 
bloody murder about this for years. We wasn't every one of 
those guys at least put into proceedings for deportation.
    Mr. Gohmert. Do you know how people are taken to the Texas-
Mexico border when they are not put on a flight somewhere else? 
Have you seen those deportations take place?
    Mr. Crane. Have I seen them take place at the border?
    Mr. Gohmert. Yeah.
    Mr. Crane. No, sir, I have not. I don't work on the border.
    Mr. Gohmert. Okay. Are you familiar with how it normally 
works on the border?
    Mr. Crane. Yes.
    Mr. Gohmert. How long to do they wait after someone is 
deported or taken to the border and sent across? Do you know 
how long they normally wait?
    Mr. Morton. It varies with the individual. Some of them 
literally tell us, thanks for the paid vacation, I am going to 
go see my mom and then come back. Some say see you guys next 
week. So some of them turn right around that night and they 
come back, others literally stay for a couple of weeks and come 
back to the U.S. at their leisure.
    Mr. Gohmert. I see my time has expired.
    Mr. Gallegly. The time of the gentleman has expired. I want 
to thank all the witnesses. And I particularly want to 
associate myself with the comments of Mr. Gohmert and Mr. Gowdy 
as it relates to you and your family, Mr. Tranchant. As a 
father of four and a grandfather of 10, I can't imagine. And my 
thoughts and prayers are with you.
    Thank you all for your testimony today. Without objection, 
all Members will have 5 legislative days to submit to the Chair 
additional written questions for the witnesses which we will 
forward and ask that the witnesses respond to as promptly with 
their answers as they will be made a part of the record of the 
hearing. And without objection, all Members will have 5 
legislative days to submit any additional material for 
inclusion in the record.
    Again, thank you for being here today and the Subcommittee 
stands adjourned.
    [Whereupon, at 5:18 p.m., the Subcommittee was adjourned.]


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