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






                    DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 26, 2011

                               __________

                           Serial No. 112-111

                               __________

         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














                            C O N T E N T S

                              ----------                              

                            OCTOBER 26, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2

                               WITNESSES

The Honorable Janet Napolitano, Secretary, Department of Homeland 
  Security
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Judy Chu, a Representative in 
  Congress from the State of California, and Member, Committee on 
  the Judiciary..................................................    53
Material submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Committee on the Judiciary.........................    67

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions from the Honorable Janet 
  Napolitano, Secretary, Department of Homeland Security.........    97

 
                    DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                      WEDNESDAY, OCTOBER 26, 2011

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to call, at 10:07 a.m., in room 
2141, Rayburn Office Building, the Honorable Lamar Smith 
(Chairman of the Committee) presiding.
    Present: Representatives Smith, Conyers, Nadler, 
Sensenbrenner, Scott, Coble, Lofgren, Gohmert, Quigley, Poe, 
Chu, Chaffetz, Griffin, Jackson Lee, Gowdy, Johnson, Adams, 
Marino, Pierluisi, Quayle, Gallegly, Deutch, Issa, Sanchez, 
King, and Forbes.
    Mr. Smith. The Judiciary Committee will come to order. 
Without objection, the Chair is authorized to declare recesses 
of the Committee at any time.
    This morning, we welcome Secretary Janet Napolitano to the 
Committee for an oversight hearing on the Department of 
Homeland Security. The Department of Homeland Security was 
created to protect our country from terrorist attacks, enforce 
Federal immigration laws and provide disaster response and 
assistance.
    DHS also performs important law enforcement functions 
related to intellectual property and child pornography.
    As we begin today's hearing, I'd like to pose two 
questions. First, how effectively has DHS secured our borders? 
The nonpartisan Government Accounting Office has found that 
only 44 percent of the Southwest border is under the 
operational control of the Border Patrol. Nearly 450,000 
illegal immigrants enter the U.S. each year.
    Meanwhile, Mexican drug cartels are out of control and the 
violence threatens to spill over into the U.S.
    The Administration needs to do more to secure the borders 
and protect the American people. Some have claimed what are 
supposedly the largest number of removals in history. However, 
even President Obama has said the statistics put out by DHS 
are, quote, ``A little deceptive.'' And a study by the 
Washington Post found that the Administration has inflated its 
removal numbers.
    My second question is how effectively has DHS protected 
jobs for American workers. With the unemployment rate over 9 
percent, jobs are scarce, and millions of American families 
have been hurt.
    According to the Pew Hispanic Center, 7 million people are 
working in the U.S. illegally. These jobs should go to legal 
workers, and securing these jobs for American workers and legal 
immigrants should be a priority of the Federal Government.
    Each time DHS arrests, detains or deports an illegal 
worker, it creates a job opportunity for an American worker. 
Worksite enforcement actions open up jobs for unemployed 
American workers.
    Unfortunately, worksite enforcement has plummeted under 
this Administration. Administrative arrests fell by 77 percent 
from 2008 to 2010. Criminal arrests fell by 60 percent, 
criminal indictments fell by 57 percent and criminal 
convictions fell by 66 percent.
    With millions of Americans unemployed, it is hard to 
imagine a worse time to cut worksite enforcement efforts by 
more than half. It is true that DHS has increased the number of 
audits of companies' employment eligibility verification forms.
    However, these audits are of questionable benefit. The GAO 
has found that, quote, ``ICE officials told us that because 
fine amounts are so low, the fines did not provide a meaningful 
deterrent. The amount of fines may be, in the opinion of some 
ICE officials, so low that they believe that employers view the 
fines as a cost of doing business, making the fines an 
ineffective deterrent,'' end quote.
    And what happens to illegal workers when ICE declines to 
arrest them? They go down the street and knock on the door of 
the next employer and take jobs away from American workers.
    DHS has also signaled that it may grant administrative 
amnesty to potentially hundreds of thousands of illegal 
immigrants currently in removal proceedings and to many others 
who have yet to be placed in proceedings. But we know that when 
this Administration issues deferred action to illegal 
immigrants, it routinely grants 90 percent of them work 
authorization.
    How can DHS justify granting work authorization to illegal 
immigrants when so many American citizens don't have jobs? 
Twenty- three million Americans who are unemployed or can't 
find full-time work must wonder why this Administration puts 
illegal immigrants ahead of them.
    Citizens and legal immigrants should not be forced to 
compete with illegal workers for scarce jobs. The 
Administration should put the interests of American workers 
first.
    That concludes my opening statement, and the gentleman from 
Michigan, the Ranking Member of the full Committee, Mr. 
Conyers, is recognized for his opening statement.
    Mr. Conyers. Thank you, Chairman Smith, and Members of the 
Committee. I join with you in welcoming the Secretary of the 
Department of Homeland Security.
    And I wanted to start out by reminding everybody on the 
Committee that we had some hearings about all these jobs that 
immigrants are taking. What was it, in Alabama and Georgia? And 
nobody wanted the jobs. They couldn't get--they can't get 
anybody for the jobs.
    And if there's anybody on the Committee that thinks that, 
among the millions of unemployed, that they are looking for 
stoop labor, please see me immediately after this hearing so I 
can put that misunderstanding to rest.
    The heart of this hearing, from my point of view, is to ask 
this one question. Who would say that the Immigration and 
Customs Enforcement (ICE)--that their time and resources are 
better spent raiding kitchens and fields to deport busboys and 
farm workers who've been working here for years to support 
their families, usually, rather than targeting those convicted 
of serious crimes or repeat offenders? And I think within the 
resources of this very important agency, we will get the answer 
to that.
    Now, 2 months ago, the Immigration Subcommittee of the 
Judiciary held a hearing on the Chairman's bill, H.R. 2497. I 
always loved the title of this bill--``Hinder the 
Administration's Legalization Temptation Act, acronym HALT.
    Now, 2 weeks ago, that same Subcommittee met again to 
conduct oversight with the director of Immigration and Customs 
Enforcement, John Morton, and in both hearings, my conservative 
friends of the Judiciary leveled essentially the same 
criticism--that the President of the United States refuses to 
enforce our immigration laws and is dead set on legalizing 
hundreds of thousands of undocumented immigrants with the 
stroke of a pen, and it was called back-door--a back-door 
amnesty strategy, and I'll be waiting carefully to see if I 
hear that phrase raised again.
    And, of course, this is incorrect. Earlier this year, 
Director Morton of ICE issued a series of memoranda identifying 
Immigration and Custom Enforcement's priorities, providing 
guidance on how ICE employees should exercise discretion to 
carry out those priorities. The memos aren't surprising and I 
hope that they aren't controversial to anyone.
    Given the resources limited that he has, ICE intends to 
prioritize, from my understanding of the hearing, the removal 
of people who threaten our safety--such as terrorists, such as 
criminals--before focusing on people who pose no such threat. 
And I will be carefully listening for any objection to that 
that might occur.
    Now, no agency or department can do it all. They have to 
make choices, and I will probably--we will have some of these 
choices that the Secretary has to make. The Department of 
Homeland Security and the Department of Justice are working 
together putting these enforcement priorities into action on a 
department-wide basis, and these actions couldn't have come 
soon enough.
    Our immigration courts are backed up--we know that--that 
deportation hearings are being set for, get this--for 2014. And 
the Department of Homeland Security would act to alleviate this 
embarrassment just makes good common sense.
    And so I close, Mr. Chairman, that--asking us to look at 
this. Remember, this is the Judiciary Committee of the House of 
Representatives, and remember that in the two-and-a-half years 
of this Administration, we have deported a record one million 
individuals, one--over a million individuals, something that I 
do not--I'm not bragging about that, don't get me wrong--
increased worksite enforcement and targeted employers who break 
the law by conducting I-9 audits, levying fines, bringing 
criminal charges, push for the national expansion of Secure 
Communities, despite some opposition from some state 
governments or local law enforcement and even some advocacy 
groups, and finally increase criminal prosecution of 
immigration offenses so much that a legal reentry after 
deportation is now the most prosecuted Federal felony in the 
country.
    So I'm happy to see Ms. Napolitano here and welcome her, as 
does all of us on the Committee, for the discussions that will 
follow this morning, and thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Conyers.
    Our witness today is Janet Napolitano, Secretary of the 
United States Department of Homeland Security.
    Sworn in on January 21, 2009, Janet Napolitano is the third 
Secretary of DHS. Prior to becoming Secretary, Ms. Napolitano 
was in her second term as governor of Arizona. While serving as 
governor, she became the first woman to chair the National 
Governors Association and was named one of the top five 
governors in the country by Time magazine. Ms. Napolitano also 
was the first female attorney general of Arizona and served as 
U.S. Attorney for the district of Arizona.
    Ms. Napolitano was born in New York City and grew up in 
Pittsburgh, Pennsylvania and Albuquerque, New Mexico. She is a 
1979 graduate of Santa Clara University, where she won a Truman 
Scholarship and was the university's first female 
valedictorian.
    She received her Juris Doctor from the University of 
Virginia School of Law in 1983. Before entering public office, 
Ms. Napolitano served as a clerk for Judge Mary M. Schroeder on 
the U.S. Court of Appeals for the Ninth Circuit, and practiced 
law in Phoenix.
    We welcome you today, look forward to your testimony, and 
please proceed.

    TESTIMONY OF THE HONORABLE JANET NAPOLITANO, SECRETARY, 
                DEPARTMENT OF HOMELAND SECURITY

    Ms. Napolitano. Well, thank you. Thank you, Chairman Smith 
and Ranking Member Conyers and Members of the Committee for the 
opportunity to testify this morning.
    Today, I would like to update the Committee on the progress 
we are making, particularly with respect to our efforts to 
prevent terrorism and enhance security, secure and manage our 
borders and enforce and administer our Nation's immigration 
laws, and I think I will begin there.
    The Obama Administration's approach to immigration 
enforcement has been widely discussed among those who like to 
debate the topic, including Members of this Committee.
    Our policies have been simultaneously described as engaging 
in a mean-spirited effort to blindly deport record numbers of 
illegal immigrants, and alternatively described as 
comprehensive amnesty that ignores our responsibility to 
enforce the immigration laws.
    These opposing views are both incorrect, and it is my hope 
that moving forward we can have a civil and fact-based dialogue 
about immigration enforcement.
    And here are the facts. Overall, in fiscal year 2011, ICE 
removed or returned nearly 397,000 individuals, the largest 
number in the agency's history. Ninety percent of these 
removals fell within one of our priority categories, and 55 
percent, or more than 216,000, of those removed were convicted 
criminal aliens--an 89 percent increase in the removal of 
criminal aliens from fiscal year 2008.
    And this includes more than 87,000 individuals convicted of 
homicide, sexual offenses, dangerous drugs or driving under the 
influence. Of those we removed without a criminal conviction, 
more than two-thirds in fiscal year 2011 fell into the priority 
categories of recent border crossers or repeat immigration law 
violators.
    Now, as part of the effort to continue to focus on high-
priority cases, ICE, in partnership with DOJ and across the 
Department of Homeland Security, has implemented policies to 
ensure those enforcing the immigration laws make appropriate 
use of the discretion they already have in deciding the types 
of individuals prioritized for removal from the country.
    This policy will help immigration judges, the Board of 
Immigration Appeals and the Federal courts to focus on 
adjudicating high-priority removal cases more swiftly and in 
greater numbers, enhancing ICE's ability to remove convicted 
criminals.
    It will also promote border security, as it sharpens ICE's 
focus on recent border entrants and allows for the expansion of 
ICE operations along the Southwest border.
    We have also stepped up our efforts against employers who 
knowingly and repeatedly hire illegal labor and have taken 
action to identify visa overstays and to enhance refugee 
screening and also to combat human trafficking.
    Additionally, since 2009, we have carried out major reforms 
to the immigration detention system. These reforms ensure the 
health and safety of the detainees in our custody and allow ICE 
to maintain a significant, robust detention capacity to carry 
out serious immigration enforcement.
    So as I hope this makes clear, we cannot on the one hand be 
on the verge of removing for the third consecutive year a 
record-breaking number of unlawful individuals from the 
country, with the highest number of criminal removals in 
history, and at the same time be abrogating our law enforcement 
responsibilities.
    Similarly, exercising discretion with more speed and better 
prioritization than at any time in history, protecting victims 
of domestic violence, engaging in worksite enforcement rather 
than workforce raids, is not cosmetic tinkering. It is real 
change with real results, and vesting discretion in our 
immigration enforcement officers and immigration lawyers is not 
amnesty. It is a prioritization system that begins with finding 
and removing individuals who are criminals and repeat 
offenders.
    Now, at the same time, our officers have the legal 
responsibility to remove unlawful individuals from the country. 
They will also do so according to our priorities but they will 
also do their job. This Administration is committed to making 
sure that we have a southern border that is safe, that is 
secure, that is open for business.
    We are more than 2 years into our Southwest Border 
Initiative, and based on previous benchmarks set by the 
Congress, it is clear that the additional manpower, technology 
and infrastructure we have added are working. Apprehensions 
have decreased 36 percent along the Southwest border over the 
past 2 years and are less than one-third of what they were at 
their peak.
    And we have matched decreases in apprehensions--and 
apprehensions are a rough way to estimate how many are 
attempting to immigrate--we have matched decreases in 
apprehensions with increases in seizures of drugs, cash and 
weapons. Violent crime in United States border communities has 
remained flat or has fallen in the past decade.
    And then finally, U.S. Citizenship and Immigration 
Services--USCIS--continues to improve our ability to provide 
immigration benefits and services to those legally eligible in 
a timely and efficient manner by streamlining and modernizing 
our operations.
    Our priorities are common sense. They enhance public 
safety. They help secure the border. They promote the integrity 
of the immigration laws.
    Yet, I think we all can recognize that more is required to 
fully address our Nation's immigration challenges. President 
Obama is firm in his commitment to advance immigration reform, 
and I personally look forward to working with the Congress in a 
bipartisan way to achieve this goal and to continue to set 
appropriate benchmarks for our success in the future.
    So I want to thank this Committee for its support of our 
mission to keep America safe.
    I want to thank the men and women who are working day and 
night to protect and defend our country, often at great 
personal risk. And I look forward to a dialogue with this 
Committee on these important issues, or any other issues you 
wish to raise.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Napolitano follows:]
    
    
                               __________

    Mr. Smith. Thank you, Ms. Napolitano.
    I'm going to recognize myself for questions and then other 
Members will be recognized.
    Ms. Napolitano, my first question is this. DHS currently 
declines to detain many criminal immigrants that are now held 
in our local jails and the result of that is that they are 
released into our communities.
    The Congressional Research Service says that under this 
Administration over half of the criminal immigrants identified, 
300,000-plus have been released. Yet, when I ask what crimes 
these released criminals have been charged with, DHS responded 
that ICE does not track this data.
    So we don't even know what crimes were committed by the 
criminal immigrants that DHS refused to detain. I am just 
wondering if that is the case. Do we in fact not determine what 
crimes have been committed and do we not know what crimes were 
committed by those individuals that DHS refuses to detain?
    Ms. Napolitano. Well, Mr. Chairman----
    Mr. Smith. It seems so incredible that we would be 
releasing individuals without even knowing what crimes they 
might have committed. But I hope there is a good answer.
    Ms. Napolitano. Yeah. Mr. Chairman, I don't know the--I'm 
not personally familiar with the CRS study that you reference. 
But we detain and have beds at the number that the Congress 
funds, which is roughly around 34,000 beds, and there are 
decisions made about----
    Mr. Smith. But my question wasn't about the number released 
or the beds. It was about do you know the crimes that were 
committed by those that you refuse to detain.
    Ms. Napolitano. Well, I will look into that, Mr. Chairman. 
I will assume, because of my work with ICE and in this field 
over the past several decades, that detention decisions are 
made just as they are made in normal criminal prosecutions--
based on public safety and based on risk of flight.
    Mr. Smith. But you don't know whether you know the crimes 
that were committed or not?
    Ms. Napolitano. I don't know exactly how they track but I 
will find out for you.
    Mr. Smith. Okay. My information, incredibly enough, is that 
you don't know what crimes were committed and these individuals 
are still being released, in effect.
    A second question is this--that I wrote you in August 
requesting to be provided a list of the immigrant criminals 
that DHS has declined to detain. Your staff at ICE and DHS have 
been cooperative and I appreciate their assistance. I was told 
that DHS has generated a list of names that being cleared 
before it was given to me.
    Instead, a letter I received yesterday from DHS's assistant 
secretary for legislative affairs contained no names whatsoever 
but simply summary statistics about the Secure Communities 
Program. To me, this was not a good faith response. And so, I 
am just wondering what happened to the promised cooperation?
    And I would like a commitment from you that by 10 a.m. next 
Monday I get the information that I was promised and I would 
like to be delivered by that time. And can I get a commitment 
from you now that I will get that information?
    Ms. Napolitano. I will look into that, Mr. Chairman.
    Mr. Smith. You will what?
    Ms. Napolitano. I said I will look into that, Mr. Chairman.
    Mr. Smith. Okay. Well, let me say to you that it has been 2 
months since I requested this information. We've had a good 
relationship with your staff. I was told that the list was 
available, had to be cleared, and now suddenly the list has 
apparently disappeared.
    And if I am not given that list as I understood to be 
promised that list, I will have no choice but to issue a 
subpoena. So I hope we can get that list.
    Let me go on to my next question, and you have heard me 
mention this in my opening statement. Now, worksite enforcement 
has dropped 70 percent over the past 2 years. ICE agents are 
instructed not to detain or remove most illegal immigrants 
found working illegally in the U.S. These illegal immigrants 
can simply walk down the street, knock on the door of another 
employer and take another job away from an unemployed American 
worker.
    At an Immigration Subcommittee hearing 2 weeks ago, ICE 
Director John Morton stated that illegal workers not detained, 
quote, ``can obviously continue to try to find employment,'' 
end quote.
    So my question is why does the Administration allow illegal 
workers to take jobs away from unemployed American workers? Why 
do you allow these individuals to walk down the street? Why 
don't you make an effort to detain them and remove them and 
send them home?
    Ms. Napolitano. Well, let me--let me, if I might, address 
the numbers and then go to--to the detention. First of all, if 
you only look at the numbers in terms of percentages, you are 
right. The percentage has dropped in terms of workers who are 
being put into removal proceedings. But the base number is very 
small.
    I mean, between 2008, before this Administration, to fiscal 
2011 you are talking about a reduction from between around 
5,000 worker removals to 1,500.
    You have to look at that in conjunction with the increase 
in criminal alien removals, which we have increased almost 
100,000 over the same period.
    Mr. Smith. Right. Again, I am not talking about criminal 
immigrants. I'm talking about----
    Ms. Napolitano. I know you are not but I--I am making this 
point because, because we have prioritized and because we are 
removing more criminal aliens, you are going to see more of 
those in detention because they are more serious offenders.
    Mr. Smith. Yeah. That--that----
    Ms. Napolitano. With respect to the individuals who we find 
at worksites, that is really not a case of----
    Mr. Smith. Madam Secretary, that really--that was not 
responsive to my question and you didn't answer my question, 
which was why does the Administration intentionally allow these 
illegal workers to walk down the street and take other jobs 
from Americans. Why aren't they being detained? Why aren't they 
being removed?
    Ms. Napolitano. They are being handled the way they have 
always been handled, Mr. Chairman.
    Mr. Smith. No. The previous Administration did a lot better 
job at worksite enforcement than this Administration. As you 
just admitted----
    Ms. Napolitano. Well, I would just have to respectfully 
disagree.
    Mr. Smith. You--you admitted a while ago that my statistics 
were right--it is down 70 percent since the last 
Administration.
    Ms. Napolitano. That is right. And as I tried to explain--
let me say it again. If you actually look at the numbers, yes, 
you are right if you only look at 70 percent. But it is a small 
part of removal operation, and in exchange for that 3,500 
diminution, we have increased the removals of criminal aliens 
who are a danger to public safety and I pointed that out.
    Mr. Smith. I understand that, and my time has expired. But 
we are still talking about thousands of individuals taking jobs 
away from American workers.
    Ms. Napolitano. Not necessarily, but we can discuss that 
further.
    Mr. Smith. Okay.
    The gentleman from Michigan, Mr. Conyers, is recognized.
    Mr. Conyers. Can I yield to Jerry Nadler?
    Mr. Smith. And the gentleman yields to the gentleman from 
New York, Mr. Nadler.
    Mr. Nadler. Thank you.
    Madam Secretary, there are many and serious problems with 
respect to immigrant detention. I want to focus on the repeated 
transfers of detainees between ICE facilities.
    According to a June 2011 report by Human Rights Watch, 
there were about 2 million detainee transfers between 1998 and 
2010, often over long distances that required the use of 
airplanes. Almost half of all detainees were moved at least 
twice.
    These transfers lead to inefficient removal hearings and 
cost $366 million in transportation alone, facts that should 
concern my friends on the other side of the aisle, among 
others.
    And the problems seem to be growing. Transfers tripled 
between 2004 and 2009. Now, moving detainees away from where 
they live impedes their ability to retain counsel, often on a 
pro bono basis.
    Since they are often moved when their removal hearing is 
already underway the entire process bogs down, and detainees 
lose access to evidence as well as friends and family, which 
makes it difficult to show to a court in a bond hearing that 
they are not a flight risk, and this results sometimes in 
unnecessary and costly detention.
    Now, DHS and ICE seem to recognize that a transfer policy 
needs reform. In August of 2009, ICE Director Morton announced 
a series of changes, including the creation of an Office of 
Detention Policy and Planning to revise transfer policy.
    In October 2009, Special Advisor to ICE, Dora Schriro, 
recommended that detainees who are represented by counsel 
should not be transferred outside the area unless there are 
exigent health or safety reasons, and when this occurs the 
attorney should be notified promptly.
    In July of last year, ICE adopted an online locater--
locater system so counsel, friends and family could at least 
locate detainees. Despite these steps, however, there still has 
not been a comprehensive change to detainee transfer policy.
    Now my questions. Madam Secretary, do you agree that we 
need to change to the policies which lead to the repeated 
transfer of detainees so that we can finally protect their due 
process rights and improve the efficiency of our immigration 
courts?
    Ms. Napolitano. Representative Nadler, there are a number 
of reasons why we want to limit transfers of detainees--the 
cost, efficiency, access to counsel, access to family members. 
The practical problem we confront is that we don't always have 
detention beds where we have detainees and that causes there to 
be movement.
    One of the things we are doing through our Office of 
Detention Policy is trying to contract for more beds in some of 
our higher intensity areas so that we can limit the number of--
of movement among our detainees.
    Mr. Nadler. Do you have any estimate of when the new 
policies to appropriately limit the transfers will be in place?
    Ms. Napolitano. Well, it is our policy now to limit 
transfers. I think the question really is when will we have 
contracts for more beds, and as soon as we can get them we will 
get them.
    Mr. Nadler. So until you have contracts for more beds you 
cannot really limit transfers?
    Ms. Napolitano. Well, we limit them as much as we can.
    Mr. Nadler. Do budget cuts negatively impact your ability 
to adopt a more humane and cost-effective transfer policy?
    Ms. Napolitano. The Congress gives us a certain amount of--
of money. We have to operate as efficiently as possible within 
the scope of that appropriation. We cannot remove 10 million 
people from this country. We have to make choices. We have to 
prioritize.
    But it that conjunction, yes. If we don't have the money to 
move and if, more importantly, the Justice Department, the 
marshals, everybody else involved in the system doesn't have 
the ability to--to manage that it--it is a problem.
    Mr. Nadler. Thank you. Among many problems relating to 
these transfers one that struck me was the impact it has on 
detainees' ability to be represented by counsel.
    A June--a recent June report from Human Rights Watch says, 
and I quote, ``Attorneys with decades of experience told us 
that they had--that they had not once received prior notice 
from ICE of an impending transfer. ICE often relies on 
detainees themselves to notify attorneys. But the transfers 
arise suddenly and detainees are routinely prevented from or 
are otherwise unable to make the necessary call. As a result, 
attorneys have to search the online detainee locator for their 
clients' new locations. Once a transferred client is found, the 
challenges inherent in conducting legal representation across 
thousands of miles can completely sever the attorney-client 
relationship. This is especially true when the same person is 
transferred repeatedly.''
    That's the quote. Now, this is all very problematic, 
obviously. Can you commit to me and to the Committee that you 
will take whatever the steps necessary to try to reduce 
significantly detainee transfers far away from counsel? In 
other words, the location of counsel should be one of the 
major--should be a determinant in--in who gets transferred to 
where. Can this be a part of ICE's new policy on detainee 
transfers?
    Ms. Napolitano. I think it should be one of the factors 
taken into account and--and I do think, you know, the--the fact 
that we now have a locator when we didn't have one before, it 
sounds like a simple thing but given the number of people who 
run through the immigration system in a given year, it--it was 
a difficult IT thing to--to get done because it is a fast-
moving system.
    But that will help counsel as well.
    Mr. Nadler. And--and would you agree that it would be a 
better practice and policy to at least notify counsel when his 
or her client has been transferred and not make them look 
around on the online system?
    Ms. Napolitano. Well, I think to the extent possible we 
should do that.
    Mr. Smith. And the gentleman's time has expired.
    Mr. Nadler. Thank you.
    Mr. Smith. And the gentleman from Wisconsin, Mr. 
Sensenbrenner, is recognized.
    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    Madam Secretary, it is no secret that you don't like the 
REAL ID Act and you have given numerous statements and speeches 
that you would like to see the REAL ID Act repealed and in its 
place put something called PASS ID on the books.
    Well, that is not going to happen. The suggestion didn't 
get off the ground in the last Congress and it has not gotten 
off the ground in this Congress.
    The current exemption or extension that the DHS has given 
on REAL ID To the states is now January 15th, 2013. Are you 
going to extend it again?
    Ms. Napolitano. Representative Sensenbrenner, first of all, 
I cannot take sole credit for opposing REAL ID. When I was 
involved with the National Governors Association it was 
bipartisan and uniform amongst all the governors that the--the 
line in the appropriations bill that was REAL ID did not 
appropriately incorporate concerns of state officials on how 
you actually implement, and was an unfunded mandate.
    That being the case, we did work with the governors on PASS 
ID and, unfortunately, for whatever reasons the Congress 
decided they didn't want to take that up. It would have been 
better to do so. Now we have a bill the governors still are 
uncomfortable with implementing. They have budget constraints 
of their own.
    But we agree with the goal of the bill, and the goal of the 
bill, of course, is to have a more secure, particularly, 
driver's license. So we are working with the states and a 
number of them--I think 22 now--are almost at the point where 
they would meet REAL ID. Others are along the way.
    Mr. Sensenbrenner. Are you going to--are you going to drop 
the boom on the states that refuse to comply or can't comply as 
of January 15th, 2013? Meaning that the non-compliant driver's 
license, can that be used to enter Federal buildings, nuclear 
power plants, get on a planes during the TSA inspection or is 
there going to be a further delay in this?
    Ms. Napolitano. Representative Sensenbrenner, I can't say 
right now. There's a--a year between now and then to work with 
the states. I think the governors generally agree with the goal 
of REAL ID. It's just how you get there.
    Mr. Sensenbrenner. Well, they are not going to get 
unilateral revenue sharing out of the Congress on this. So they 
can increase the cost of driver's licenses, as my state has. 
But your REAL ID rules review in your shop only consists of 
three professional staff members and one administrative support 
person.
    And as there are more documents that are submitted by the 
states that are not in compliance, how do you expect to get 
through that paperwork with just four people working on it?
    Ms. Napolitano. Well, Representative Sensenbrenner, if we 
need to put some more people on that project we will. I have 
not been informed that we need to do so.
    Mr. Sensenbrenner. Mm-hmm. Now, I'm getting back to the 
question that I asked and I don't think you answered--as the--
if states are out of compliance on January 15th, 2013, are DHS 
personnel going to be instructed not to accept noncompliant 
identification to get into the Federal facilities or to get on 
a plane?
    Ms. Napolitano. Well, Representative Sensenbrenner, I--I 
really don't like to speculate on things that could happen over 
a year from now. I am going to work with the states. We will 
work with the states and bring them into compliance if we can.
    Mr. Sensenbrenner. Okay. When are you going to start 
informing the states of how and when REAL ID will be enforced?
    Ms. Napolitano. Well, we--we stay in regular contact with 
the governors primarily through the NGA about REAL ID. And I 
suspect when they have their winter meeting here in January 
that will be one of the topics that we take up with them.
    Mr. Sensenbrenner. Well, the 9/11 Commission was very firm 
in saying that we had to have secure ID after looking at the--
the IDs that the 19 hijackers were able to get for themselves. 
And the longer this Administration and the governors that don't 
want to do this delay this, the more risk the American public 
has on a terrorist that wants to commit a major act of 
terrorism.
    And I spent a lot of time during my chairmanship to try to 
prevent that from happening. This is still a hole in the system 
that can be exploited and it is not due to a lack of 
congressional action, for once.
    It is due to a lack of implementation by DHS and it is due 
to a lack of will by the governors in providing for the safety 
and security of their driver's licenses.
    I am not for a national ID card. But the longer this goes 
on, if there is a major terrorist attack because REAL ID has 
not been implemented for whatever reason, there will be a huge 
push here for a national ID card.
    So I think it is in the interest of everybody to make sure 
that REAL ID is implemented the way it was written and passed 
in 2005.
    Thank you.
    Mr. Smith. Thank you, Mr. Sensenbrenner. The gentleman from 
Virginia, Mr. Scott, is recognized.
    Mr. Scott. Thank you. Madam Secretary, the Alabama law that 
was recently passed allows Alabama to inquire into immigration 
status. Is the Department of Homeland Security working with 
Alabama in helping them implement that law?
    Ms. Napolitano. Representative Scott, could you--is your 
microphone----
    Mr. Scott. Alabama has--Alabama's immigration law allow--
allows Alabama officials to inquire as to immigration status. 
Is the Department of Homeland Security working with Alabama to 
help them implement that law?
    Ms. Napolitano. Not in that sense. We have been working 
with the Department of Justice on its challenge to that law.
    Mr. Scott. Okay. And is there any way that--and how would 
that law affect Hispanic citizens?
    Ms. Napolitano. It--you know, I don't know the answer to 
that question right now. The law has just gone into effect.
    Mr. Scott. Well, I mean, you--you would have to assume that 
Hispanic citizens would be adversely affected because they 
would have to be showing ID about everywhere they go, other--
a--a situation that other citizens would not have to do.
    Ms. Napolitano. I think that should be a real concern. You 
are correct.
    Mr. Scott. The Prison Rape Elimination Act--has that been 
applied to ICE facilities?
    Ms. Napolitano. Yes. We have a zero tolerance policy for 
sexual harassment or misconduct by detention officers, be they 
those who are actual public employees or--or contracted.
    Mr. Scott. And how--how are we doing on that? Have there 
been any complaints of sexual harassment and illegal sexual 
activity?
    Ms. Napolitano. Yes, there are--there are complaints. And 
when there--there are, the instruction is that they are to be 
explored and they are to make sure that if there needs to be 
corrective action taken, whatever that may be under the 
circumstances, that is to be done.
    Mr. Scott. How are we doing in that--in that area?
    Ms. Napolitano. My understanding is that we are being very 
firm in this area and that we are dealing with those complaints 
expeditiously.
    Mr. Scott. Are you familiar with the Frontline expose from 
a few weeks ago?
    Ms. Napolitano. Yes.
    Mr. Scott. Was that accurate?
    Ms. Napolitano. No.
    Mr. Scott. Could you give an update on the TSA work with 
religious groups as far as how people with religious dress can 
get through security?
    Ms. Napolitano. We are working--you know, the--the issue 
for us is what to do with those who wear--who have bulky 
clothing on, and particularly bulky head gear, and this can 
affect particular religious groups and religious beliefs. We 
have a process that we follow that I think has accommodated 
both religious group beliefs and our security needs.
    But we continue to have ongoing dialogue as--as I think we 
should.
    Mr. Scott. Within ICE, do you have detainees with mental 
illness that causes problems, like people who are incompetent 
that stay in ICE kind of limbo indefinitely?
    Ms. Napolitano. Given the number of people that we have in 
detention at any given time and over the course of a year, we--
I am certain we have some detainees who have mental health 
issues as well as detainees who--of course, who have physical 
health issues.
    Mr. Scott. Now, what is done for those that are kind of in 
limbo--those who are mentally incompetent that just kind of sit 
there indefinitely?
    Ms. Napolitano. Well, one of the things that we are trying 
to do by the prioritization process and by reviewing the cases 
currently on the master docket is to speed up the time by which 
those in detention can actually have their cases heard. That is 
one of the impetuses behind the case-by-case review.
    Mr. Scott. And--and do we have people kind of in limbo that 
are there indefinitely?
    Ms. Napolitano. Well, there are people in limbo in the 
immigration system generally, and the fact that there are 
people in limbo is one of the reasons why we hope at some point 
in time the Congress could take up the overall immigration 
system and immigration reform.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Scott.
    The gentleman from North Carolina, Mr. Coble?
    Mr. Coble. Thank you. Thank you, Mr. Chairman. Madam 
Secretary, good to have you on the Hill. Good to have you with 
us.
    Do you, Madam Secretary, agree with President Obama's 
statement that removal numbers are deceptive and what--do you 
know what he meant by that?
    I am thinking he may have been referring to voluntary 
returns.
    Ms. Napolitano. No. I think what he was referring to, if I 
recall the context of that quotation, Representative, was that 
overall removal numbers are up.
    As I said, we removed 397,000 people last year, more than 
ever before, but he was explaining that you also have to look 
at what comprise--what was in that number and he was referring 
to the fact that we have greatly increased the number of 
criminal aliens that are removed within the context of the 
overall number.
    Mr. Coble. So voluntary returns would not have been part of 
his statement on that?
    Ms. Napolitano. I don't believe so, no.
    Mr. Coble. Over the length, Madam Secretary, of the Bush 
Administration, I am told that yearly removals went up in 
excess of 90 percent. Will the current Administration come 
close to this rate of increase?
    Ms. Napolitano. I would have to check those numbers. My 
under--I don't know where those numbers come from.
    Mr. Coble. And I don't recall my source. If you will get 
back to us on that, I would appreciate that.
    Ms. Napolitano. Yes, sir.
    Mr. Coble. Yesterday--well, strike that. Last week, you 
told Senator Durbin that it cost in the neighborhood of $23,000 
to $30,000 to annually remove one person. Earlier this year, 
however, ICE provided the Judiciary Committee with data 
indicating a total cost of removal of $12,198.
    So the disparity is significant. Have you seen ICE's 
immigration enforcement lifestyle unit cost report?
    Ms. Napolitano. I don't know whether I have seen that 
report. The number I gave was what it cost to go through the 
entire removal including through the court system, and that is 
an estimate, of course.
    I don't know whether the ICE number was with respect to 
ICE's part of that only. So we will--we will get back to you on 
that as well.
    Mr. Coble. I would be appreciative to you if you do that. 
Now, again, and I'm going to blank on my source, I don't recall 
where I read this or heard it, but I have heard that DHS might 
consider reopening cases in which aliens with final orders of 
removal have already been removed from the United States.
    Is there any credence to that?
    Ms. Napolitano. That would be news to me.
    Mr. Coble. Okay. If you could check that out.
    Ms. Napolitano. I--yes. I don't--I don't think that is 
accurate.
    Mr. Coble. Okay. Might DHS reopen cases in which final 
orders of removal have already been removed? You say this is 
not known to you?
    Ms. Napolitano. No.
    Mr. Coble. Okay. Last week, again, during your appearance 
before the Senate Judiciary Committee you testified that absent 
unusual circumstances, cases with final removal orders will not 
be reopened.
    If you would, Madam Secretary, elaborate on what would 
constitute an unusual circumstance.
    Ms. Napolitano. Oh, it is hard to say, Representative. 
There are so many human factors that go into immigration. There 
are so many--so many variations in the cases.
    It--one might be where someone is needed to come back to be 
a witness in another ongoing and unrelated criminal prosecution 
and where the Department of Justice asks us to bring someone 
back.
    Mr. Coble. Prosecutorial discretion is already being 
exercised as it has always been by the officers and agents on 
the front lines who are closest to the facts of the cases 
involved.
    Let me put a two-part question to you. Why do DHS and 
Department of Justice bureaucrats in Washington have to go back 
and double-check the work and expertise of those front-line law 
enforcement professionals?
    Ms. Napolitano. Well, Representative--and I have led large 
prosecution offices many times, both as a U.S. Attorney and an 
attorney general, and it is important to the field for 
fairness, for consistency to have guidance as to what the 
prosecutorial priorities are and that is exactly what we have 
been doing.
    We have a big field, lot of agents out there. You are 
right, they have a lot of expertise, but their expertise--and 
they like this. It puts their cases--they know where they stand 
and where our priorities are--puts them into an overall 
framework.
    Mr. Coble. I thank you, Madam. Mr. Chairman, I see my red 
light is illuminating so I yield back.
    Mr. Smith. Thank you, Mr. Coble.
    The gentlewoman from California, Ms. Lofgren?
    Ms. Lofgren. Thank you, Mr. Chairman, and thank you, Madam 
Secretary, for being here with our Committee.
    I want to touch first on a cyber security issue. DNSSEC, 
which is the Domain Name System Security Extensions, was 
ordered--deployed across the Federal Government in 2008 by OMB, 
and in 2010, the White House said that the DNSSEC for the 
Internet's root zone was a major milestone for Internet 
security.
    On the Homeland Security website, DNSSEC is quoted as being 
of critical importance to securing a Federal Internet domain. 
So here's my question. Do you think it is important that U.S. 
government policies toward the Internet should preserve the 
effectiveness of DNSSEC and other authentication technologies 
for a cyber security point of view?
    Ms. Napolitano. Yes.
    Ms. Lofgren. Thank you very much.
    I want to get into the immigration issue, the detention 
issue.
    Last week, the ACLU filed a lawsuit--Doe v. Neveleff--
accusing ICE of failing to protect female detainees from sexual 
assault by a private prison guard at Hutto Detention Facility.
    Nine women are specifically identified as being--having 
been sexually assaulted by a guard when he transported them out 
of the facility during a release process without appropriate 
supervision and that countless others may have been assaulted.
    In April this year, the National Immigrant Justice Center 
filed a complaint with your Office for Civil Rights and Civil 
Liberties alleging serious mistreatment of 13 gay and 
transgender detainees, alleging sexual assault by guards and 
fellow detainees, denial of medical care, use of long-term 
solitary confinement, and 36 of my colleagues brought this 
complaint to your attention and to the attorney general earlier 
this year and I understand it is still under review.
    Now, going back to Mr. Scott's question about the rape--
Prison Rape Elimination Act--it is my understanding that the 
Department of Justice has specifically excluded immigration 
detention facilities from their proposed rule. They seem to be 
relying on ICE's detention standards on sexual abuse, but those 
are not mandatory. They lack the force of law.
    So I am wondering if, by your answer to Mr. Scott, you are 
agreeing that that Prison Rape Elimination Act ought to, in 
fact, be imposed on detention standards--in ICE detention.
    Ms. Napolitano. Well, let me answer in two parts. One is 
that I would obviously have to look at the act but--before 
making a blanket agreement. But going to the problem that--that 
we are trying to address, which is if there is inappropriate, 
wrong or criminal conduct, and it can be in some circumstances 
criminal, by officers against detainees, that needs to be dealt 
with and it needs to be dealt with efficiently, firmly and 
quickly and that--and we have a zero tolerance policy for that 
conduct.
    Ms. Lofgren. Well, you inherited an awful mess when--in 
terms of detention when you came in. There were a lot of 
stories in the--in the New York Times, the Washington Post. 
There were deaths in detention, and you brought in an expert to 
try and put some order to it. There was a report that was a 
pretty good report and it doesn't look to me, but I guess this 
is a question, that we have actually implemented that report 
fully.
    Can you address that?
    Ms. Napolitano. Well, I would say we have implemented good 
measures of that report and we use it as our guidepost. We did 
create a separate office within ICE to deal solely with 
detention.
    We eliminated a number of the contractors that we were 
dealing with and consolidated facilities.
    Ms. Lofgren. Well, let me do this. Let me--I see my yellow 
light on. I don't want to be rude but I know the Chairman's 
going to gavel me down. Perhaps I can follow up with some of 
the detailed questions I have with you.
    I have a final question on how we are going to interact 
with the new Alabama law. As you know, their new law makes it a 
felony for an undocumented person to engage in any business 
transaction with a government entity.
    What that means is if you had a mother who is undocumented 
and she gets a library card for both of her U.S. citizen 
children, she committed two felonies.
    Under our detention and removal priorities, that woman who 
got two library cards would be the worst of the worst to be 
deported. How are we going to deal with that Alabama law in our 
priorities in Mr. Morton's memo?
    Ms. Napolitano. Well, the scenario you depict is not within 
our priorities and it is--you know, the purpose of the 
litigation we have undertaken is--the underlying principle is 
that it is for the Federal Government to set immigration law 
enforcement priorities.
    Ms. Lofgren. So we will look beyond the mere conviction?
    Ms. Napolitano. We will look at the cases individually, 
yes, as we will in other states as well.
    Ms. Lofgren. Very good.
    Ms. Napolitano. Not just in Alabama.
    Ms. Lofgren. Very good. Thank you very much.
    Mr. Smith. Thank you, Ms. Lofgren.
    The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and thank you, 
Secretary, for being here.
    Just for my own edification, did the president get any 
information or guidance from you or anyone in your department 
before his decision to support the ouster of President Mubarak 
and also to assist the rebels in Libya?
    Ms. Napolitano. He did not get any information from me or 
my department, to my knowledge.
    Mr. Gohmert. You didn't give any guidance on that at all--
nobody from your--Homeland Security did that?
    Ms. Napolitano. No.
    Mr. Gohmert. Okay. Did the President get any information or 
guidance from Homeland Security before his decision to pull out 
the troops from Iraq or a drawdown in Afghanistan? Do you 
assist in that at all or anybody from your department?
    Ms. Napolitano. Again, these are not matters really within 
the purview of the Department of Homeland Security.
    Mr. Gohmert. Okay. So they were considered completely 
unrelated to our own homeland security?
    Ms. Napolitano. Well, you can--Homeland Security covers so 
many fields that I wouldn't--that what I would say simply is, 
if the question is were we involved in that----
    Mr. Gohmert. Well, the question was as it was.
    Ms. Napolitano [continuing]. Was I involved in that 
decision.
    Mr. Gohmert. Did you provide information that would have 
been utilized in any of those decisions?
    Ms. Napolitano. Not that I--not that I know of.
    Mr. Gohmert. Okay. Last year, Admiral Mullen said that--his 
words--the national debt is the single biggest threat to our 
national security. We have millions of people coming into this 
country on visas, some illegally, who come in and get health 
care and leave without paying. It is an ongoing problem.
    We now are seeing that there will be Americans who are not 
getting health care as quickly as they need or that they need 
because it appears we are moving to rationed care. So it should 
be a very important issue.
    We have inquired of the State Department about the 
applications for visas. They tell us that there is no provision 
in the application that indicates whether they have been 
diagnosed with any condition--heart problems, cancer, 
pregnancies, needed surgeries--on the application for a visa. 
So that is not considered at all when people come in.
    We are also told by the State Department that even though 
the spouse's name is on the application, they don't normally 
ever check the spouse's name on the terrorist watch list before 
deciding to approve the benefits of a visa.
    Do you think that would be a good idea to check the 
spouse's name on the terrorist watch list or do you concur that 
there is just not time and it is not worth it?
    Ms. Napolitano. Well, I can't answer because I haven't seen 
what the State Department responded to or what they----
    Mr. Gohmert. Well, I am just--that wasn't my question to 
you. My question to you is would it be a good idea to check the 
spouse is on the terrorist watch list.
    Ms. Napolitano. Well, I think that one of the--the things 
that we have been able to do over the past several years is to 
unify databases, unify search engines in such a way that those 
kinds of security checks can be more easily done.
    Mr. Gohmert. But if they don't do the checks it is a 
problem, isn't it?
    Ms. Napolitano. It could be a problem. But, again, I don't 
know about that.
    Mr. Gohmert. Thank you. All right. Let me move on.
    Do--do you make the final decision as to who is put on your 
Countering Violent Extremism Working Group?
    Ms. Napolitano. We have an individual in the department who 
is the lead on CVE and so----
    Mr. Gohmert. Okay. Do you--are you consulted at all on who 
is put on that working group?
    Ms. Napolitano. I have not been, no.
    Mr. Gohmert. All right.
    Are you aware that the president of ISNA, Imam Magid, is a 
member of that working group, correct?
    Ms. Napolitano. I can't answer that. I don't know whether 
that is an accurate statement or not.
    Mr. Gohmert. Okay. Well, you can go look at your own 
website and find the documentation. He has been on your working 
group, the Countering Violence--Violent Extremism. Do you know 
how many of the members of your Countering Violent Extremism 
are members of Muslim Brotherhood?
    Ms. Napolitano. Again, since I--I am not involved in the 
appointment but if I might--if I might just----
    Mr. Gohmert. Well, let me--my time is running out, so I 
really don't have time but----
    Ms. Napolitano [continuing]. If I might elaborate on my 
answer.
    Mr. Gohmert [continuing]. But I have got a very serious 
question that needs to be confronted.
    Ms. Napolitano. Well, I would be happy to look into that.
    Mr. Gohmert. Are you familiar with Mohamed--are you 
familiar with----
    Ms. Napolitano. Sir--sir, I would like the ability to 
expand on my answer, if that is all right with you.
    Mr. Gohmert. I don't have time. I am running out and I 
can't be filibustered.
    Ms. Napolitano. Well, okay.
    Mr. Gohmert. But let me ask you, Mohamed Elibiary is--was a 
member of the working group. You promoted him, and it said 
there--I have got articles here that say you swore him in as a 
member now of your, let's see, the Homeland Security Advisory 
Group. He has apparently been given a secret clearance. Do you 
know, Mr. Elibiary?
    Ms. Napolitano. Yes.
    Mr. Gohmert. OK. Were you aware he had a secret clearance?
    Ms. Napolitano. I believe everybody on the Homeland 
Security Advisory Council ultimately gets a secret clearance 
because of the materials they would get.
    Mr. Gohmert. Would you be surprised if they--well, I don't 
have time. But were you aware that he spoke at the big event in 
Texas honoring the Ayatollah Khomeini?
    Ms. Napolitano. I am not aware of all the places he has 
spoken.
    Mr. Smith. The Chairman's time has expired.
    Mr. Gohmert. But may I--if I could just have 15 seconds. 
This is critical.
    Secretary, were you aware that a week ago today, from his 
home computer he accessed the SLIC database, got information 
off and has been shopping a story to national media on 
Islamophobia directed at the governor of Texas and the security 
folks there in Texas? Were you aware of that?
    Ms. Napolitano. No.
    Mr. Smith. Thank you, Mr. Gohmert.
    Mr. Gohmert. I'm telling you it happened. Do we need to 
appoint somebody or will you have that investigated yourself, 
and if so, by whom?
    Ms. Napolitano. Well, since I don't know the facts, I will 
have to look into the facts.
    Mr. Gohmert. So you will be the one to make that call?
    Ms. Napolitano. We will have somebody, and it will be 
myself or someone.
    Mr. Gohmert. Does it concern you at all that it happened? I 
am telling you it happened.
    Mr. Smith. The gentleman's time has expired.
    Mr. Gohmert. Okay. Doesn't come----
    Mr. Smith. The gentleman from Illinois, Mr. Quigley, is 
recognized.
    Mr. Quigley. Thank you, Mr. Chairman.
    Thank you, Madam Secretary, for being here today.
    As you know, I am the sponsor of the Secure Travel and 
Counterterrorism Partnership Program Act, which would allow you 
to bring additional eligible countries into the visa waiver 
program by modifying the primary qualifying criteria for entry. 
I am doing that with many others, including Mr. Chaffetz, from 
this Committee.
    On Wednesday, October 5th, the House Homeland Security 
Subcommittee on Counterterrorism and Intelligence held a 
hearing on what DHS is doing regarding security and safety for 
international travel.
    At that hearing, Mr. Heyman testified and spoke to the 
issue of the visa waiver program and said that it would be--he 
thought it would be terrific to expand visa waiver.
    He didn't have the technical specifications about the 
department's data capabilities, but he did say that any changes 
would be rolled over--rolled out over a period of time and they 
would allow DHS to meet the necessary requirements.
    What I have been telling folks about why I support this 
program is that it is not your father's visa waiver program--
that your agency and others have been working hard to increase 
the security in this program and how it would perform under 
existing programs and additional in countries.
    I was hoping that you might speak about what the department 
is doing, the work on this data and what we might be seeing in 
the coming weeks and months that would increase our knowledge 
about who is coming and going under existing programs and under 
countries like Poland that, I think, should have been part of 
this program for a long time.
    Ms. Napolitano. Well, Representative Quigley, we would like 
to provide not only technical assistance on review of that but 
support. You know, Poland's been an ally of ours for a long 
time. They are--they are--we have a very good relationship with 
Poland. So that is, I think, would be a good thing for the 
United States to do.
    With respect to visa waiver generally, one of the things, 
as I was explaining earlier, we have been able to do over the 
past several years is to really make our data systems, both 
biographic and biometric, much more robust in a way that gives 
us a lot of the security features of the old visa--of visas 
without necessarily having a visa issued.
    Part of this, of course, is what we have done to 
incorporate ESTA with respect to flights leaving for the United 
States. Part of it has to do, again, with uniting CBP databases 
with TSA databases in a way they weren't united prior to 2009.
    Mr. Quigley. I think you testified earlier to the Senate 
about some of this, and you were stressing biographic 
information and the new research that is being done and the new 
work you are doing, why that is as important or more important 
or more feasible than biometrics. Could you focus on that for a 
minute?
    Ms. Napolitano. That is right. Well, biometric, as we have 
looked at it, particularly for exit, is extraordinarily 
expensive. And what we have found is by greater use of much 
more robust biographic data, we really get to 99 percent of 
what you would have with a very expensive biometric system.
    Mr. Quigley. In--in a nutshell, can you explain to those 
new to this issue why countries that participate in a visa 
waiver program, especially under this new information you are 
requiring, actually makes us safer?
    Ms. Napolitano. Well, because part of the agreement to 
engage or be a visa waiver country, part of that agreement is 
also the agreement to sign other agreements; for example, one 
called the PCSC--the Preventing and Combating Serious Crime--
which relates to the exchange of criminal history databases.
    So in exchange for a visa waiver, there are other 
agreements that we get from the countries in the program.
    Mr. Quigley. Very good.
    Thank you, Mr. Chairman. I yield back.
    Mr. Smith. Thank you, Mr. Quigley.
    The gentleman from Texas, Mr. Poe, is recognized.
    Mr. Poe. Thank you, Mr. Chairman.
    Thank you for being here, Madam Secretary.
    The GAO has reported that 44 percent of the border is 
somewhat secure. Fifty-six percent is not secure. Do you agree 
with that statistic?
    Ms. Napolitano. No, and I don't think that is exactly what 
they said, and I have testified to this several times, 
Representative. They were using the phrase ``operational 
control,'' which is a term of art within the Border Patrol.
    It is actually somewhat misleading because it doesn't 
capture not--not just the--the Border Patrol, but the 
technology and infrastructure that goes along with it. So it is 
not an accurate statement.
    Mr. Poe. So what would you say is secure? So it is not an 
accurate statement?
    Ms. Napolitano. It is not an accurate statement, no.
    Mr. Poe. All right. So who controls the other 56 percent if 
we don't have operational control?
    Ms. Napolitano. No. We--we have--we have the responsibility 
for that entire border, as you know. It includes a----
    Mr. Poe. So who controls it?
    Ms. Napolitano [continuing]. Amount of manpower and 
technology and infrastructure we have put down at the border. 
It is a very different border than it was even three or 4 years 
ago.
    Mr. Poe. I agree. It is worse.
    The Iranians, apparently, think our border is less secure 
than we do. Otherwise, they wouldn't have gone to Mexico to 
work with supposedly the Zetas to smuggle in explosives into 
the United States.
    What do the Iranians know about the cross-border traffic of 
the Zetas or other drug cartels that we are missing? In my 
opinion, the Zetas, other drug cartels, have--they have access 
to the United States. They have access back to Mexico.
    So it seems like the Iranians, obviously, know something 
about the--the lax border than we do.
    The Bureau of Prisons says that 27 percent of the people in 
the Federal penitentiary--27 percent--are foreign criminal 
aliens. That means they are illegally in the United States when 
they commit a felony. All of those 27 percent--a fourth of the 
population in the Federal penitentiaries--got here some way, 
and they got here illegally, according to the statistics of the 
Bureau of Prisons.
    And if the border is so secure--let me give you some 
insight as to the Texas border where I have been numerous times 
in areas that aren't exactly as safe as you claim.
    The sheriffs--on any given day, we will call the sheriffs 
in the border jails and say, how many people are in your jail 
that are foreign nationals? Not criminal aliens--foreign 
nationals.
    The most recent one is a--I have the border counties--and 
the average is about 34.5 percent of the people in Texas border 
jails are from foreign countries. Now, these are cross-border 
criminals. These are people who come in the United States, many 
of them commit their crimes and then they go back to where they 
came from--into Mexico--unless they are caught by local law 
enforcement.
    These aren't people in jail with immigration violations. 
Based on your experience, do you think 34 percent is a high 
number of foreign nationals in anybody's jail?
    Ms. Napolitano. Well, I--I----
    Mr. Poe. I mean, either you do or you don't.
    Ms. Napolitano. Listen----
    Mr. Poe. I am listening. You listen. Answer the question. 
You're a lawyer. You know to answer the question and not just 
ramble so that the time expires.
    Do you think 34.5 percent of the people in jail being from 
foreign countries is a high number or not?
    Ms. Napolitano. The border communities in Texas, Arizona, 
New Mexico and California have either had violent crime rates 
the same or decreasing in the last 5 years, and dramatically 
so. They are listed--El Paso, Austin, San Diego--among the 
safest communities in the United States. We have, and that does 
not mean----
    Mr. Poe. Reclaiming my time. Sorry. Reclaiming my time.
    I'm not talking about specific towns--El Paso. The crime is 
in between the ports of entry. It is not necessarily in 
Brownsville or San Diego or in the city of El Paso. The crime 
is in between. The jails are occupied by 34 percent foreign 
nationals.
    My question is simple. Do you think that is a high number? 
Either you do or you don't.
    Ms. Napolitano. Well, that is one of the--if that is 
accurate--and I don't know that it is accurate--if it is 
accurate, it is one of the reasons we installed Secure 
Communities in the border jails first.
    Mr. Poe. Let me ask you another question.
    The 20-point deferred prosecution memo that came out--Mr. 
Morton testified that there was White House input on that. Do 
you agree with his statement when he testified before us that 
there was White House input on the 20 points deferred 
prosecution?
    Ms. Napolitano. Well, I think the memo was prosecutorial 
discretion, not deferred prosecution.
    Mr. Poe. That's correct. I'm sorry. Prosecution discretion.
    Ms. Napolitano. And--well, because immigration involves two 
major agencies--DHS and DOJ--it is entirely appropriate, and 
yes, there was coordination with the White House.
    Mr. Poe. Do you know of statutory authority, not court 
authority, statutory authority for deferred prosecution? 
Congress, that is us, Congress passing laws allowing for 
deferred prosecution, or prosecutorial discretion. I'm sorry. 
Prosecutorial discretion.
    Ms. Napolitano. Well, there--you know, you forget Congress. 
You go back to Article 2, Sections 1 and 3 of the Constitution.
    Mr. Poe. Well, of course, the Constitution does say that 
the--Congress is to be responsible for naturalization and 
making the laws on naturalization, not the Executive Branch. So 
if you want to quote the Constitution you might want to----
    Ms. Napolitano. Well, the----
    Mr. Poe [continuing]. Read that section as well.
    Ms. Napolitano [continuing]. Section in the--Article 2, 
Section 3 says, ``The Executive Branch shall make sure the laws 
are carried out.'' And that has been interpreted by the U.S. 
Supreme Court and by statute to mean----
    Mr. Poe. What's the statute?
    Ms. Napolitano. That the Executive Branch has prosecutorial 
discretion.
    Mr. Poe. I didn't ask you about the Heckler case. You 
noticed I didn't ask you about that. I am asking about 
constitutional, legislative, statutory authority to ignore 
portions of the law based on a memo. Is there statutory 
authority to do that?
    Ms. Napolitano. Well, there----
    Mr. Poe. The Constitution does say that the----
    Ms. Napolitano. Wait.
    Mr. Poe. Wait a minute. I'm talking.
    Ms. Napolitano. Yes.
    Mr. Poe. The Constitution does say that the Executive 
Branch is to enforce the law of the land--carefully enforce the 
law of the land--and it seems to me the Executive Branch is 
giving a pass to a lot of folks under the guise of 
prosecutorial discretion. I will yield back my time.
    Mr. Smith. Okay. The gentleman's time has expired. Which--
--
    Ms. Napolitano. Mr. Chairman--Mr. Chairman, may I--may I 
respond or----
    Mr. Smith. Yeah.
    Ms. Napolitano [continuing]. Would you like me to wait?
    Mr. Smith. Madam Secretary, please respond to the question. 
Sure.
    Ms. Napolitano. Yeah. I would--I would simply say that 
prosecutorial discretion by prosecutors, by immigration has 
been enforced and--and done by Republican and Democratic 
administrations, and it makes sense.
    Mr. Smith. Okay. And let me also add and say to the 
gentleman from Texas that the GAO study that he referred to 
which found that only 44 percent of the border was under 
operational control found that only 15 percent of the border 
was under actual control. So it is a lot less than might--than 
many people might think.
    The gentlewoman from California, Ms. Chu, is recognized.
    Ms. Chu. Thank you, Mr. Chair.
    Madam Secretary, I want to thank you for moving forward 
with clearer guidelines for ICE officers to use prosecutorial 
discretion on these immigration cases. And I think, in fact, 
that it uses our available resources to target those who need 
it the most, which is serious felons, drug traffickers, and 
others who would do America harm.
    This is just common sense. We should be using our scarce 
taxpayer dollars not to deport students but to primarily 
convict--to deport those convicted of violent felonies who pose 
a threat to public safety. And though some say that you are 
doing something new here, I know that all law enforcement 
bodies set priorities and that our immigration enforcement 
agencies are not different.
    Republicans and Democrats have called for more discretion 
and your agency under both Republican and Democratic 
administrations have issued policies on, and required the use 
of, prosecutorial discretion. And, in fact, as a long-time 
prosecutor, you know better than most that you can't enforce 
the law and prosecute if you can't get it on the court's 
docket.
    Our immigration court system is incredibly backlogged. More 
than 300 cases--300,000 cases are pending at any time and 
immigration judges are scheduling hearings for 2014. So it 
makes sense that you are now reviewing that backlogged docket 
to--to sort through the cases.
    And isn't it right that Code 6 USC 202 specifically directs 
you to establish national immigration enforcement policies and 
priorities? And in Congress' annual appropriations bills, have 
we not directed you to repeatedly prioritize the removal of 
serious criminal aliens, and funded programs that specifically 
target such--such populations?
    And, in fact, in this effort could you tell me how it 
enhances your ability to swiftly remove people who are a 
priority to the agency?
    Ms. Napolitano. Well, the answer is yes. Congress has given 
such direction. I don't know the exact number of the citation 
but I think that is accurate.
    What we are doing is--is if you--if you think about the 
immigration system in segments, the segment is who is being 
picked up for removal and that is where we are prioritizing our 
enforcement efforts.
    So you get operations like Cross Check, where we picked up 
thousands of criminal fugitives just a--a couple of weekends 
ago. Then we have the--the 300,000 or so cases already on the 
master docket, and it turns out those aren't prioritized at 
all. And so you get these never-ending court dates that just 
get pushed back and back and back, as you referenced.
    What we are doing is going through those to make decisions 
as to which should come first in order to facilitate the 
movement of the--the detainee docket through the removal 
process and to facilitate the removal of criminal aliens from 
the country. It is one of the reasons why we are going to 
continue to see those numbers go up.
    Ms. Chu. And why is this not amnesty and not a free pass?
    Ms. Napolitano. I--I couldn't hear you with the bell. 
Excuse me?
    Ms. Chu. Why is--is your effort toward prosecutorial 
discretion not an amnesty, as some claim, and not a free pass?
    Ms. Napolitano. Oh, it is--it is clearly not. Yeah, it is 
what law enforcement does on a routine basis, which is to 
evaluate cases on their facts and make decisions as to which 
one merit the use of the government's resources.
    Ms. Chu. Thank you for that.
    I'm going to turn toward a different topic and it is on 
TSA--TSA and the racial profiling issue. First, I'd like to ask 
unanimous consent that this letter from the Sikh Coalition can 
be entered into the record expressing their current concerns 
about the treatment by TSA.
    [The information referred to follows:]
    
    
    
                               __________

    Ms. Chu. Well, this year marked the 10th anniversary of 9/
11, yet South Asians continue to be the victim of 
discrimination. And here in the Judiciary Committee I heard the 
anguished testimony of Sikh Americans who are pulled out of 
lines at airports just because they were wearing a turban. They 
were put in glass cages on display like some animal--pulled 
into rooms and interrogated for hours where even their babies 
were searched, yet no Sikh has ever committed a terrorist 
attack in the United States.
    But when Sikhs complain about this racial profiling, there 
have just been a--a lack of response from the TSA, and when 
guidelines are passed down many times they are ignored. Both 
TSA and the Department of Homeland Security claim to have a 
robust complaint and redress system.
    However, the experience for Sikh travelers have been 
woefully inadequate. Complaints oftentimes go unanswered for 
several months. And, in fact, there was an instance of one 
complaint that I looked at where their response took 6 months 
and it basically said you don't have any documentation.
    Now, we met with Administrator Pistole and he said that 
they are going to have a review of the complaint system. I 
wanted to know what the status is of that review. We have 
waited for 3 months for some kind of system to be put into 
place that--that would be more timely.
    Ms. Napolitano. Yes, there is that review, and our Civil 
Rights and Civil Liberties group has been looking into the--
that issue specifically. We have greatly reduced the time it 
takes to address complaints. We do have outreach to the Sikh 
and other communities.
    I would suggest, however, that, you know, we are very 
respectful of the Sikh community and--and work with them on a 
number of areas. The issue from a TSA security perspective is 
if there is bulky headgear or bulky clothing, the current 
technology cannot ascertain whether there may be something in 
it of an--that is explosive and they have to find some way to 
clear that passenger.
    Mr. Smith. The gentlewoman's time has expired. Thank you, 
Ms. Chu.
    The gentleman from Utah, Mr. Chaffetz?
    Mr. Chaffetz. Madam Secretary, thank you for being here.
    You said you disagreed with the GAO analysis of the 
percentage of the border that is secure. What percentage of the 
border do you think is secure?
    Ms. Napolitano. Well, I think that having lived and worked 
on that border----
    Mr. Chaffetz. I'm just looking for a number. I got to go 
very quickly.
    Ms. Napolitano [continuing]. And having lived and worked on 
that border most of my--my life, I say it is as secure as it 
has ever been. But it is an ongoing project.
    Mr. Chaffetz. Like what--do you have a percentage? You 
don't have a percentage?
    Ms. Napolitano. Well, I would say it is very secure, Mr. 
Chaffetz. [Laughter.]
    Mr. Chaffetz. Okay. When did you first speak with Eric 
Holder about ``Fast and Furious?''
    Ms. Napolitano. I don't believe I have ever spoken with 
Eric Holder about ``Fast and Furious.''
    Mr. Chaffetz. How many--how many agents--since you have 
taken office, how many of your agents have been killed in the 
line of duty?
    Ms. Napolitano. Oh, too many.
    Mr. Chaffetz. Do you know the--do you have any number?
    Ms. Napolitano. Well, I would--I would have to double-check 
but I would say at least 12.
    Mr. Chaffetz. How many guns from ``Fast and Furious'' 
operation were detected crossing the border?
    Ms. Napolitano. I do not know.
    Mr. Chaffetz. How many guns from ``Fast and Furious'' were 
seized at the border?
    Ms. Napolitano. I do not know.
    Mr. Chaffetz. Why is it that an operation that big and that 
important and that much in the news you don't have the details 
of?
    Ms. Napolitano. Well, Representative, as you know, it was 
an ATF operation.
    Mr. Chaffetz. In 2009, we know of two incidences where ICE 
ceased investigating at the request of the ATF.
    Are there any other instances where you were asked--your 
department, your agency, was asked not to pursue cases that 
potentially had a conflict with ``Fast and Furious?''
    Ms. Napolitano. In the wake of your investigation of ``Fast 
and Furious'' I have been made aware of those two ICE 
instances. I don't think I have been made aware of any others.
    Mr. Chaffetz. Let me go to testimony that you had last 
week. Last week you were with Senator Grassley. You were asked 
about communication with Mr. Burke regarding ``Operation Fast 
and Furious.'' Question from Senator Grassley: ``Have you had 
some communications?''
    Your response, and I will read it very quickly: ``No, not 
about 'Fast and Furious.' When Agent Terry was killed it was 
December 14th. I went to Arizona a few days thereafter to meet 
with FBI agents and assistant U.S. Attorneys who were actually 
going to look for the shooters. At the time, nobody had done 
forensics on the guns and 'Fast and Furious' was not 
mentioned.''
    You went on to say, ``But I wanted to be sure that those 
responsible for his death were brought to justice and that 
every DOJ resource was brought to bear on the topic. So I did 
have conversations and it would have been December of '09--I 
think you meant December of '10 about the murder of Agent 
Terry. But at the point in time, nobody knew about ``Fast and 
Furious'' so that is a different question.''
    And yet, we have documents that show, and this is a quote, 
``an urgent firearms trace requested by ATF agents on the scene 
to determine that these firearms came from 'Fast and 
Furious'.''
    Why is that you, as the Secretary of Homeland Security with 
one of your agents dead on the scene, did not get briefed about 
``Fast and Furious?''
    Ms. Napolitano. I do not know.
    Mr. Chaffetz. How is that acceptable? Do you think that 
they withheld that information from you or is it your 
responsibility to actually find that information?
    Ms. Napolitano. Well, I think the focus, Representative 
Chaffetz, is we had a dead agent, and a dead agent killed in a 
very rugged area of Arizona. And the number-one thing that was 
on my mind when I went out there was to make sure that the 
appropriate resources were being dedicated to that 
investigation.
    Mr. Chaffetz. But you have guns from ``Fast and Furious'' 
that are found on the scene. You testified here just last week 
that there was no knowledge of ``Fast and Furious'' at the 
time--that the--you went out of your way to say that the 
forensics were not done. And yet, that is not true. That is not 
true.
    Ms. Napolitano. I am not going to comment on that. I don't 
know the document to which you refer. What I can say and what I 
think is fairly clear from the context is I was speaking to my 
knowledge at the time and I did not know about ``Fast and 
Furious.''
    Mr. Chaffetz. Did you direct or was there any direction 
from your department and agency to allow the guns to go across 
the border that were involved in ``Fast and Furious?''
    Ms. Napolitano. ``Fast and Furious'' was an ATF operation.
    Mr. Chaffetz. So you--if your agents detected weapons going 
south across the border, you'd just let them go because it was 
an ATF operation?
    Ms. Napolitano. As the two incidents you refer to--the two 
ICE incidents--I think, reveal, is when they ran gun--picked up 
guns and ran them or asked ATF to E-trace them, ATF came back 
and said these are part of a larger operation--stand down.
    After the second incident in which that occurred, that 
matter was taken by the ASACs to the assistant U.S. Attorney, 
which is common. That happens in the field. And the assistant 
U.S. Attorney said that the ATF operation would take 
precedence.
    Mr. Chaffetz. So was it the Department of Homeland 
Security's policy to allow guns to go south into Mexico if they 
were involved in ``Fast and Furious?''
    I'm looking for a yes or no.
    Ms. Napolitano. No.
    Mr. Chaffetz. How is it that you can make the claim that 
the border is now more secure than ever and yet the Obama 
Administration purposely allows more--nearly 2,000 guns to be 
released, knowing that they are going to go to Mexico, with 
hundreds of people killed by those weapons--two dead U.S. 
agents--and yet you don't even know if we have detected even 
one of those guns?
    In fact, on January 14th, you did detect somebody in New 
Mexico. There were eight guns found. They didn't even run a 
trace on them and you let those guns go into Mexico. I find 
that absolutely stunning.
    And for you to have two dead agents and to have never had a 
conversation with Eric Holder about ``Fast and Furious'' and 
about this is totally unacceptable. Totally unacceptable.
    I'll yield back.
    Mr. Smith. The gentleman's time has expired.
    The gentleman from----
    Ms. Napolitano. Mr. Chairman, I know Representative 
Chaffetz has his opinion on this matter, as his--as the tone of 
his question reveals, but I simply would suggest that no one 
takes the deaths of agents more seriously than I, and also, 
that one of the reasons that we have not directly dealt with 
the attorney general on this is he very quickly and 
appropriately put this matter in the hands of the inspector 
general.
    Thank you.
    Mr. Smith. And the gentleman from Arkansas, Mr. Griffin?
    Mr. Griffin. Thank you, Mr. Chairman.
    Madam Secretary, I want to talk to you about the memo that 
has been raised earlier here today--the Morton memo from June, 
and the part of it, in particular, entitled, ``Factors to 
Consider When Exercising Prosecutorial Discretion.''
    I--I am certainly familiar with the concept of 
prosecutorial discretion. In my experience, that has been more 
of a bottom-up discretion exercised by individual prosecutors.
    That having been said, when I look at the list of factors 
and the degree of specificity in that list, it strikes me that 
whether intended in this--to be this or not, it strikes me that 
it is a roadmap for retaining illegal immigrants.
    And it seems to me you could look at this list and meet a 
few of these categories and have a good chance at being pushed 
to the bottom of the prosecutorial list. That is particularly 
so when I--when I look at the draft memo that--that referred to 
the DREAM Act that came out of U.S. Citizenship and Immigration 
Services last year.
    And I understand we have had assurances that that draft 
memo was just a draft and parts of it were not included in the 
Morton memo.
    But my question is, looking at the extensive nature of the 
list of factors to consider, in your experience as a prosecutor 
have you ever seen or are you aware of other memos like this in 
the context of other crimes--for example, in the context of 
Federal crimes at the Department of Justice, or any other 
crime?
    Are you familiar with memos this extensive that lay out 
with this specificity what prosecutorial discretion is? Because 
I have never seen such detail and I would be interested to hear 
your view on that.
    Ms. Napolitano. Well, the Department of Justice has the 
whole U.S. Attorneys manual, which is to guide the exercise of 
prosecutorial discretion and it is pretty thick.
    Mr. Griffin. Sure.
    Ms. Napolitano. So there's a lot there. And also, 
Representative, there is a November, I think, 2000--I have to 
go back and check the date out--I want to say 19--it's a Doris 
Meissner memo that lays out the exercise of prosecutorial 
discretion in immigration cases and specifies what a 
significant Federal interest is in that connection. That memo 
has in turn been cited by subsequent directors, either of INS 
or ICE, as recently as Julie Myers in the previous 
Administration.
    Mr. Griffin. Sure. I would--I will say a couple of things. 
The U.S. Attorneys manual certainly lays out broadly for 
individual prosecutors guidance for them as they prosecute 
cases. This, I have--I have never seen and I would--I would 
like if you--if you can point to other guidance with this 
specificity, I would love to see it, particularly when these 
factors consider things like whether the person subject to 
prosecutions spouse suffers from an illness. That seems 
extraordinary when you are deciding whether to prosecute 
someone for a criminal act.
    Ms. Napolitano. If I might explain.
    Mr. Griffin. Yes.
    Ms. Napolitano. Here's--here's what can happen in the 
immigration context. You have a U.S. citizen spouse who is very 
ill and requires home care, and the issue is do you deport 
someone who has been taking care of that U.S. citizen spouse, 
and then put that spouse into much more expensive health care 
or do you allow the spouse to stay in country.
    Mr. Griffin. Sure. Sure.
    Ms. Napolitano. So those are the kinds of scenarios that 
need to be adjudicated or looked at on a case-by-case basis.
    Mr. Griffin. If you take this list, you can--you can see a 
lot of--you can come up with a number of--of different 
individual circumstances. Certainly most prosecutors know, in 
my experience, the difference between prosecuting a petty thief 
and a terrorist and without the specificity here.
    I could make the case that certain aspects of the DREAM Act 
are implemented in here--not--not verbatim. But when you read 
all of the policy documents that relate to this stuff, it is--
it is not difficult to see that this, in my opinion, and a lot 
of people in my--in the 2nd Congressional District of 
Arkansas--in our opinion, this looks like--more like a policy 
document.
    And let me say a couple things. I am running out of time 
here. If you look over at the--the ICE union issued a press 
release in response to this. These are union members.
    They said, quote, ``Unable to pass its immigration agenda 
through legislation, the Administration is now implementing it 
through agency policy and bypassing Congress.''
    Now, this is a union agreeing with me, which doesn't happen 
a lot. But on this particular instance, I would welcome your 
comments.
    Ms. Napolitano. Well, I would say we are not bypassing the 
Congress, much as we would like the Congress to address these 
issues and, in fact, would invite that kind of engagement. What 
we are is suggesting or--or giving guidance to the field.
    By the way, I met yesterday in Chicago with all of the area 
directors for ICE in this area and--and we went through and 
talked about the operations that are going on and how they are 
going to impact public safety and how we want to guide our 
resources. And this is a group that is fully engaged. They get 
it.
    Mr. Griffin. Let me--let me real quickly mention a couple 
of things.
    It--it seems to me that a lot of what we see in terms of 
state legislation in Arizona and Alabama and--and Florida and--
and Virginia and other states that is passed to address 
immigration issues, it seems to me that that is simply the 
states' reaction to what they see as the Federal Government's 
failure to do its job on the border. Not just in this 
Administration--in Administration after Administration, 
including the one that I served in--the last one.
    And it seems to me if--if the Federal Government was truly 
securing the border, you would not have to deal with this--with 
a lot of these state laws that are percolating up to address 
what folks back in the states see as the Federal Government's 
failure to do its job. And, again, it goes across 
Administration. But I have one quick question--unrelated 
question.
    Mr. Smith. The----
    Mr. Griffin. May I have a----
    Ms. Napolitano. Could I--may I--and I would like an ability 
to respond to that, if I might.
    Mr. Smith. The----
    Mr. Griffin. Mr. Chairman, may I have a quick----
    Mr. Smith. The gentleman's time has expired. Let--we will 
let the Secretary respond to your question.
    Ms. Napolitano. Thank you, Mr. Chairman.
    I would suggest, first of all, that much of the information 
about the border that is distributed is not in fact accurate 
and one of the things I am trying to do is get--get the 
accurate information to the Congress and invite anyone from the 
Congress to come to the border.
    But, secondly, in my judgment, I think a number of the 
states are acting because the Congress has failed to act.
    Mr. Smith. Thank you, Mr. Griffin.
    The gentlewoman from Texas, Ms. Jackson Lee, is recognized.
    Ms. Jackson Lee. Secretary, thank you so very much for 
sharing your time with the Judiciary Committee this morning, 
recognizing the challenges of multi-jurisdiction for Homeland 
Security.
    I wanted to compliment you on one aspect of your very 
august resume and that is that you are a graduate of the 
University of Virginia Law School, one of the best law schools 
in the Nation. I happen to have passed through there a couple 
of years. And so I just wanted to make note about our fellow or 
common law school and I hope it served you well, as it did me.
    Let me raise some questions and repeat what I heard you say 
in your opening statement--that 90 percent of the deportations 
are priority deportations, as I understood your testimony.
    Ms. Napolitano. For fiscal year '11.
    Ms. Jackson Lee. Fiscal year '11. Fifty-five percent were 
criminal aliens. Is that----
    Ms. Napolitano. That's true.
    Ms. Jackson Lee [continuing]. About the right number? And 
it looks as if you said that two-thirds were without--were 
recent border crossers or repeat violators. Is that accurate?
    Ms. Napolitano. Two-thirds of the remaining 45 percent fell 
within those categories.
    Ms. Jackson Lee. All right. So I think if we look--and the 
reason why I want to clarify this because many of us who have 
been advocating for a comprehensive approach to immigration 
might take offense to the recitation by the Administration that 
they have done more than Bush, Clinton, et cetera, in 
deportations.
    We might take offense because we believe that it might have 
an impact on the people we believe could readily be, if you 
will, legalized or given some status through a comprehensive 
approach.
    But when you look at these numbers and you clarify them, 
many of us would not have a disagreement that this is the 
appropriate approach to take.
    So I just want to make sure these numbers--I want to recite 
them into the record. And I want to ask the question, is the 
Administration stepping away from its commitment to 
comprehensive immigration reform?
    Ms. Napolitano. Not at all. The President wants it. I would 
like to see it and stand ready to work with the Congress on a 
moment's notice on it.
    Ms. Jackson Lee. Before I go into my questions about 
comprehensive immigration reform, let me pose a question on our 
detention facilities, which you have overlapping jurisdiction.
    I have worked through my years on this Committee--in 
Judiciary--on trying to improve those Committees--excuse me, 
those facilities, particularly as it relates to women and 
children.
    We have made some progress. We passed legislation where 
there are facilities that address the question of women and 
children waiting for deportation, putting families together. It 
has come to our attention that we have had some incidences at 
the detention facilities impacting--I read an article. I read a 
news line on assaults by officers in those facilities.
    Are you aware of that, and if not, what kind of procedures 
are in place to protect those incarcerated who are non-
criminal, who are waiting for action through the court or 
waiting for action in deportation? They include families and 
children, and particularly women.
    Ms. Napolitano. Well, as I explained earlier, we have a 
zero tolerance policy for any of--any misconduct of that 
nature. There is a grievance process. There is a process by 
which we will immediately deal with officials who are--or 
officers who are found to have committed that kind of conduct.
    We are constantly auditing or--or reviewing, particularly 
the facilities that we contract with--we have reduced the 
number of contractors--but to improve the conditions of 
detention.
    Ms. Jackson Lee. Well, could I ask you as--whether or not 
you are ensuring sufficient attentiveness and staffing to 
ensure the highest level of protection of those non-criminal--
well, everybody should be protected but certainly those non-
criminal families, children who are waiting on a civilian or a 
non-criminal processing.
    Ms. Napolitano. I think that we are.
    Ms. Jackson Lee. Okay. Let me proceed with--and I would ask 
if I could follow up after the fact either with your office 
directly or--on a specific questions in our region in Texas. 
But I want to go to the Morton Amendment that seems to have 
caused so much attention.
    And part of it is--delineates and--and let me say that I 
claim a--a good relationship with unions from--from all over 
the sectors and including the union that my colleague just 
mentioned. But we can have differences of opinion, and I 
appreciate prosecutorial discretion. It is used all the time.
    One aspect of his delineation, and I think it should be 
noted, the memo includes factors--the length of time a person 
has lived in the United States, the circumstances of arrival, a 
child that has come, military services by a person, the 
strength of ties and contributions to the community, the 
strength of ties to the home county conditions, and whether the 
person has a U.S. citizen or lawful permanent resident parent, 
child, or spouse.
    Do you think that is unreasonable? You have been an 
attorney general for the state. You've prosecuted. Do you think 
that is an unreasonable, if you will, framework, and ties the 
hands of prosecutors in making an appropriate decision on 
behalf of the people of the United States?
    Ms. Napolitano. No. I think that is an important factor to 
consider given that the Congress gives us the resources only to 
remove about 400,000 a year.
    Mr. Smith. The gentlewoman's time has expired.
    Ms. Jackson Lee. Mr. Chairman? Mr. Chairman? Mr. Chairman? 
The last gentleman--I had one last question. The last gentleman 
went on and on on the red light and you allowed that 
gentleman----
    Mr. Smith. Most Members have been granted an extra 30 to 45 
seconds----
    Ms. Jackson Lee. Well, I would--I would appreciate it----
    Mr. Smith [continuing]. And you--you reached that limit 
like all the others. But we will be happy for you to ask 
another question.
    Ms. Jackson Lee. I thank you so very much, Mr. Chairman.
    There have been a number of legislative initiatives 
introduced by Members of Congress upwards of 175, 200 on 
comprehensive immigration reform. I want to defend the Congress 
in the sense that there is a body politic of those of us in the 
House and the Senate that desire comprehensive immigration 
reform.
    I would like to just point to one Save America 
Comprehensive bill--there was the Ortiz bill--but, in 
particular, access to legalization where you have a process for 
those who have been here to access legalization.
    Is that still a--a readily acceptable approach to look at 
that would answer some of the concerns of our colleagues that 
have been mentioned here?
    These are individuals that are working, paying taxes. 
Wouldn't that be an aspect of what we might look at if we ever 
got to comprehensive immigration reform?
    Ms. Napolitano. Yes, but with a clarification I think 
because these terms get--get confused. Access to legalization 
versus access to citizenship--that's something I think that 
would have to----
    Ms. Jackson Lee. Two distinct points.
    Ms. Napolitano. Yeah.
    Ms. Jackson Lee. And so the legalization is giving them 
status while they pay fines and look at how they would process 
citizenship. Is that my understanding?
    Ms. Napolitano. That--that is a--yes. That is a common use 
of the word ``legalization.''
    Ms. Jackson Lee. Still in discussion and still----
    Mr. Smith. The gentlewoman's time has expired.
    Ms. Jackson Lee. Thank you.
    Mr. Smith. The gentleman from South Carolina, Mr. Gowdy, is 
recognized.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Madam Secretary, you were both a state and Federal 
prosecutor. Did you ever approve or sanction investigations 
that allowed gun walking?
    Ms. Napolitano. No. Not to my knowledge.
    Mr. Gowdy. Why would you not allow gun walking?
    Ms. Napolitano. Well, I don't think the--those matters or 
those kinds of investigations were ever presented to me.
    Mr. Gowdy. But had they been presented to you, there is a 
reason you don't allow contraband cash and guns to walk. As a 
former Federal and state prosecutor, can you give us those 
reasons?
    Ms. Napolitano. Well, I--I don't like to speculate. You 
know, every case is different.
    Mr. Gowdy. I am not asking you to speculate.
    Ms. Napolitano. Every prosecutor makes different decisions 
and I don't believe I was ever presented with that decision.
    Mr. Gowdy. So you can't think of any reasons not to let 
contraband walk outside the care, custody, and dominion of a 
law enforcement officer?
    Ms. Napolitano. Well, I think in the common context when 
you--in drug cases or firearms cases or whatever, when you are 
trying to work the case up, you know, from the low level to the 
higher levels and--and put somebody more--the more serious 
criminal off the streets, often times you let contraband get 
into the hands of others.
    Mr. Gowdy. And then you immediately interdict it and arrest 
them? I have done it--did it for 16 years, Madam Secretary. You 
never let drugs, cash or guns walk. You immediately interdict 
them.
    When do you learn of ``Fast and Furious'' for the first 
time?
    Ms. Napolitano. I learned of it after the death of Agent 
Terry.
    Mr. Gowdy. And when did you learn that gun walking was part 
of ``Fast and Furious?''
    Ms. Napolitano. I would say sometime between his death and 
the early spring.
    Mr. Gowdy. To your knowledge, is every--has anyone ever 
communicated or did anyone communicate with Mexican authorities 
that guns were being allowed to cross our border into Mexico in 
contravention of their gun laws?
    Ms. Napolitano. I can only speak for communications that I 
know of and I know of no such communications.
    Mr. Gowdy. When you were the United States Attorney in 
Arizona, did you make routine use of proffers, 5K1.1s and Rule 
35s?
    Ms. Napolitano. Sure.
    Mr. Gowdy. So there is no prohibition in the District of 
Arizona from using the same investigatory and prosecutorial 
tools that we use in every other district?
    Ms. Napolitano. Not that I know of.
    Mr. Gowdy. So there is no reason that this, quote, ``gun-
trafficking case'' could not have been handled like it is 
handled in all the other states?
    Ms. Napolitano. I am not commenting to this one. I am not 
second-guessing ``Fast and Furious.'' It is under investigation 
now.
    Mr. Gowdy. Everyone else has second-guessed it. The 
attorney general has said there were problems. The President 
has said there were problems.
    So I am not asking you to say anything they haven't already 
said. Do you agree there were problems with ``Fast and 
Furious?''
    Ms. Napolitano. I thought you were asking a much more 
specific question. But what I would say is obviously there were 
problems with ``Fast and Furious.''
    Mr. Gowdy. What were those problems?
    Ms. Napolitano. Well, obviously, you don't want to let guns 
with the kind of firepower that--that we now know were involved 
to get out of your--your control.
    Mr. Gowdy. Is firepower the only reason you don't allow 
guns to walk?
    Ms. Napolitano. Well, there is--there is a number of them. 
But--but if you want to cross-examine me about it----
    Mr. Gowdy. I am not cross-examining you, Madam Secretary. I 
am asking you about ``Fast and Furious.'' I am asking you when 
you knew about it.
    Ms. Napolitano. Well, what I am explaining to you--what I 
am explaining to you is that the case itself and the matter in 
which it was handled is under the jurisdiction of the Inspector 
General. But, obviously, from a--from a what-we-know 
perspective, yeah, there were--there were problems. Absolutely.
    Mr. Gowdy. When you were the United States Attorney in the 
District of Arizona did you ever have Title 3 cases?
    Ms. Napolitano. T-3s? Yes.
    Mr. Gowdy. And those applications were approved by whom?
    Ms. Napolitano. The court.
    Mr. Gowdy. And, ultimately, before they got to the court 
they had to be approved by the Department of Justice, correct?
    Ms. Napolitano. Well, yes.
    Mr. Gowdy. So for the Department of Justice to contend in a 
Title 3 OCDETF case that they did not know about ``Fast and 
Furious'' would be disingenuous at best, correct?
    Ms. Napolitano. I just am not going to comment to that. I 
don't know those specifics. That was not within the Department 
of Homeland Security.
    Mr. Gowdy. Well, let me--I am asking you as a former 
prosecutor who did T-3 cases. The Department of Justice has to 
approve those applications, correct?
    Ms. Napolitano. That is the procedure, yes.
    Mr. Gowdy. And in those applications is a narrative or 
summary of the case?
    Ms. Napolitano. That is correct, yes.
    Mr. Gowdy. So someone at the Department of Justice had to 
know about ``Fast and Furious'' for the T-3 to ever have been 
approved, correct?
    Ms. Napolitano. I--I just can't comment. I don't know that 
there was a T-3 approved in ``Fast and Furious.''
    Mr. Gowdy. If there were a T-3 approved in ``Fast and 
Furious'', and there were, the Department of Justice would had 
to have known about it, correct?
    Ms. Napolitano. I am going to leave that for your own 
investigation, sir. I am just not going to comment or go beyond 
what I know, and what I know is that after the death of Agent 
Terry, it--the ``Fast and Furious'' label became apparent and 
we become knowledgeable about it.
    Obviously, there were problems with the operation. 
Obviously, it did not succeed and--and the Inspector General 
has that under investigation right now. From a law enforcement 
perspective--from a law enforcement perspective, yes, ``Fast 
and Furious'' is very troublesome.
    Mr. Gowdy. Mr. Chairman, if I might, could have just an 
additional 30 seconds, which may be the custom this morning.
    Mr. Smith. Without objection.
    Mr. Gowdy. Madam Secretary, my point on ``Fast and 
Furious'' is that there weren't just problems. It was flawed 
from its inception. Any investigation that countenances gun 
walking across the border is flawed in its inception.
    So what I take offense at is when the attorney general and 
others on the other side of the aisle say that only when 
problems became apparent that--this investigation was a problem 
from the very beginning. I am going to ask you one final 
question because you mentioned twice this was an ATF 
investigation.
    It was, in fact, an OCDETF investigation, which means what, 
as a former U.S. Attorney?
    Ms. Napolitano. Well, it means--and now you are into 
something I really don't know anything about. I don't know 
whether it is OCDETF, whether it was handled by an AUSA. I--I 
really don't know that.
    Voice. Would the gentleman yield?
    Mr. Gowdy. If it were OCDETF, then there would be more than 
one Federal law enforcement agency involved, correct? That is 
by definition.
    Ms. Napolitano. I just can't comment to that. I just don't 
know the answer to that.
    Mr. Gowdy. Okay. Fair enough.
    Mr. Smith. The gentleman's time has expired.
    The gentleman from Georgia, Mr. Johnson, is recognized.
    Mr. Johnson. Thank you.
    And Secretary Napolitano, I think you have done an admiral 
job here this morning. It is always impressive to see a long 
table and a big room with a bunch of men, mostly seated, ready 
to question one solo witness down there and that witness has no 
control--just has to respond to the questions, sometimes the 
insinuations, sometimes which can border or which can be 
political in tone and totally inappropriate.
    But you have endured through this process. It is, in fact, 
part of your job, and I know it is not probably one of the most 
pleasant aspects of the job but you have acquitted yourself 
well before this Committee and I appreciate your service to the 
Nation.
    And I am not going to blame every problem that exists as 
far as immigration or, you know, Federal law enforcement--I am 
not going to blame that on you or make you responsible or 
appear to be responsible for that nor will I infer that the 
Obama Administration is immune to the normal problems that crop 
up in the course of the Federal Government's dealings. I mean, 
you are going to have some mistakes made. You are going to have 
some bad choices made. You are going to have some good things 
done, too. Those things should be pointed out.
    But I will say that you weren't the Secretary of Homeland 
Security in 1999. Department of Homeland Security itself wasn't 
created until 3 years later. But back in 1999, we also saw 
Members of Congress express frustration with the INS about the 
issue of prosecutorial discretion.
    As we have heard today when Chairman Smith led a bipartisan 
letter to Attorney General Janet Reno and the INS Commissioner 
Doris Meissner on that topic, he specifically urged the INS to 
use prosecutorial discretion to avoid unfairness and, quote, 
``and unjustifiable hardship,'' end quote.
    The following year, according to Anthony Lewis' op-ed in 
the United--excuse me--in the New York Times, Chairman Smith 
complained that the INS was spending its time on cases that cry 
out--that, quote, ``on cases that cry out for compassion,'' end 
quote, instead of focusing resources on, quote, ``hardened 
criminals or hardened criminal aliens,'' end quote.
    Now, I would like to enter both the letter and the op-ed* 
into the record. Is that permissible?
---------------------------------------------------------------------------
    *The Committee did not receive the op-ed referred to in time for it 
to be included in this printed record.
---------------------------------------------------------------------------
    Mr. Smith. Without objection that will be made a part of 
the record.
    [The information referred to follows:]
    
    
    
                               __________

    Mr. Smith. But I would also like to say to the gentleman 
from Georgia that he might want to put the contents of those 
letters in context. They were generally referring to legal 
immigrants or legal--and also was referring to not making 
general categories of individuals eligible but for going 
through on a case-by-case basis.
    So I wouldn't want the gentleman to give a misimpression to 
anybody about the contents of those letters.
    Mr. Johnson. Certainly, and no intent to do that, Mr. 
Chairman. And the letter and the article will speak for 
themselves and you have made--you have duly noted your position 
for the record.
    And I look at the immigration laws that were creating 
unfairness and injustice in 1999 and they look like the same--
they look like the same laws that we are dealing with today. 
Small wonder that the need for prosecutorial discretion has not 
diminished during that period.
    You have spoken about the need for prosecutorial discretion 
in order to meet smart law enforcement priorities, but what 
about the cases that, quote, ``cry out for compassion,'' to use 
Chairman Smith's words?
    Ms. Napolitano. Well, thank you and thank you for your--
your opening comments, and I would simply say that nothing in--
in Director Morton's memo suggests a categorical amnesty for 
any group. What it suggests is that there be a case-by-case 
evaluation of the individual circumstances in--there are very 
clear cases that require immediate deportation.
    There are very clear cases where we know the Nation's 
public safety is involved. We have repeat violators. We have 
fugitives. But there are other cases that are different in 
context and kind, and part of having a--a reasonable 
immigration system is the ability to look at those.
    Mr. Johnson. Thank you. And I will yield the balance of my 
time.
    Mr. Smith. Thank you, Mr. Johnson.
    We will now go to the gentlewoman from Florida, Mrs. Adams.
    Mrs. Adams. Thank you, Mr. Chair, and thank you, Secretary.
    I have been sitting listening with great interest as a law 
enforcement officer for so many years. I have to tell you I was 
interested in hearing what you said about Alabama and that you 
were part of that. And you have said over and over again, 
including this morning, that you don't have the funds so you 
have to prioritize.
    So why not accept states' help to be a force multiplier for 
your agency?
    Ms. Napolitano. Well, we--we do in what--and--and let me 
tell you, the most important way that states help us right now 
and localities is through Secure Communities. That is an 
important tool, as we have now been able to expand it, to help 
us identify criminal aliens in the Nation's jails and prisons.
    Mrs. Adams. And I listened as many of my colleagues asked 
questions and the one in particular, Representative Gohmert, 
had said something and I was watching your reaction, and I was 
surprised that you didn't say if, in fact, that is a problem 
that we need to look into it and, you know, has something been 
compromised and is someone shopping a story.
    That concerns me that you didn't step up and say, we will 
put national security over any type of politics and I will look 
into it. Will you commit to look into what Representative 
Gohmert brought up earlier? Yes or no.
    Ms. Napolitano. Well, I apologize. I don't remember 
specifically what he brought up, but, yes, if there are 
national security issues or important policy issues involved 
then, obviously, we would.
    Mrs. Adams. Well, I want to make sure that we are doing our 
national security above politics at all times. I am really----
    Ms. Napolitano. Of course.
    Mrs. Adams.--I--I believe that wholeheartedly.
    Ms. Napolitano. Of course.
    Mr. Smith. Would the----
    Mrs. Adams. I heard someone else say----
    Mr. Smith. Will the gentlewoman yield for just a moment?
    Mrs. Adams. I will in just a minute. I want to get through 
my questions.
    I heard someone else ask you about limbo indefinitely but, 
in fact, isn't it true that if they are in a deportation status 
and their home country will not accept them that you release 
them back into the communities----
    Ms. Napolitano. Well, there----
    Mrs. Adams [continuing]. Based on a ruling?
    Ms. Napolitano. Yeah. There is a Supreme Court case called 
Zadvydas, which is a due process case, which, if--if the home 
country cannot accept or will not accept, gives us about a 6-
month detention period.
    Mrs. Adams. And, in fact, some of these people have come 
back into the communities and committed heinous crimes--truly 
heinous--like Huang Chen, who killed a young woman, I believe, 
after China had refused to repatriatize him. Is that true? And 
if I remember reading this correctly, they still have not 
located her heart and lungs.
    So, I mean--and another one who killed a police officer in 
Ft. Myers after being released back into the community because 
their home country would not take them.
    You know, Section 243(d) of the Immigration Nationality Act 
requires a government to sanction countries that refuse to 
repatriate by suspending issuance of immigrant or nonimmigrant 
visas or both to nationals of the country until it takes the 
aliens back.
    You--now it is DHS--is supposed to order or give the 
country that refuses back--take back its aliens to the 
Secretary of State shall order that the visas to its citizens 
be suspended.
    How many have you recommended, under Section 243(d)?
    Ms. Napolitano. We have not. What we have done is work with 
their countries that systemically refuse to accept their aliens 
back.
    Mrs. Adams. So you are telling you have not done any?
    Ms. Napolitano. Not that I am aware of.
    Mrs. Adams. And so we could possibly have----
    Ms. Napolitano. I don't know if we are talking about the 
same thing. I am having a----
    Mrs. Adams. Well, it says that these are people who were 
pending removal but their home countries aren't taking them.
    Ms. Napolitano. All right.
    Mrs. Adams. You have the ability to recommend that they--
you know, upon notification by the Attorney General now given 
by DHS that a country refuses to take back its aliens, the 
Secretary of State shall order that further visas to its 
citizens be suspended.
    I asked you how many times have you recommended and how 
many times has that happened.
    Ms. Napolitano. I would have to look into that.
    Mrs. Adams. It seems to me, Madam Secretary, that if you 
are not willing--you said just a minute ago you had not, now 
you are going to look into it. I have listened to that all 
morning long.
    I have been amazed at some of the answers given, knowing 
that you were coming before this Committee. You have got deaths 
of agents in ``Fast and--``Fast and Furious.''
    You have Iran planning to come across our borders because 
they see what, apparently, your agency does not--that we have 
an open border, and you have deaths of our citizens and law 
enforcement officers based on people being--not because their--
their own home countries won't take them but because they are 
being released into our country after committing crimes.
    And you are telling me you don't know now--at first you 
said you hadn't done it, now you don't know if you had 
recommended that there be some kind of diplomacy pushed forward 
on these countries because----
    Ms. Napolitano. Well----
    Mrs. Adams. Now, let me finish.
    Ms. Napolitano. Excuse me, Representative. I just want to 
make sure we are being clear because in this Committee, I think 
it--I am trying to provide as accurate information as I can.
    Mrs. Adams. Correct.
    Ms. Napolitano. What I am suggesting to you is that we have 
been working through the State Department with some of the 
countries that routinely refuse to accept illegal aliens back. 
But I don't know for other diplomatic reasons whether the State 
Department has actually suspended visas.
    Mrs. Adams. Okay. Tell me this. Has DHS sought or 
obtained--has DHS sought or obtained any legal opinion that, 
for some reason, DHS need not comply with this duly enacted 
statute?
    Ms. Napolitano. I am not sure. Again, that is kind of a 
``gotcha'' question. What I am saying is that we are working 
and have been working with the State Department with some of 
the countries that routinely refuse to take back criminal 
aliens.
    Mrs. Adams. Madam Secretary, with due respect, that is not 
a ``got you.'' These are statutes, and what I have heard from 
my Committee Members is that they have been asking you several 
times have you been complying with statutes or is there a 
statute that you can rely on for not complying to statute.
    So well, I will ask respectfully if you will get me that 
number--how many times. Since you do not have that number now--
you said at first, no, you didn't do it--now you don't know--I 
will be more than happy for us to put it in writing so that 
there will be no misinformation or misunderstanding. And I 
yield back.
    Mr. Smith. The gentlewoman's time has expired.
    The gentleman from Puerto Rico, Mr. Pierluisi, recognized 
for his questions.
    Mr. Pierluisi. Thank you, Mr. Chairman.
    Madam Secretary, I would first like to applaud you for 
crafting a common sense policy of exercising discretion over 
which immigration cases to prosecute. But I would now like to 
address the department's drug interdiction work in the 
Caribbean region, particularly Puerto Rico.
    Many experts, including the U.S. Attorney in Miami, have 
recognized that as the Federal Government curtails the flow of 
drugs across our Southwest border, drug trafficking 
organizations are increasingly turning to the Caribbean as an 
alternate means to get their products to end users in the--in 
the U.S.
    According to estimates provided to my office, approximately 
80 percent of the South American cocaine that arrives in Puerto 
Rico is subsequently transported to the U.S. mainland, and the 
20 percent of cocaine that remains in Puerto Rico for local 
consumption is the primary cause of the island's unacceptably 
high number of murders.
    I know you share my view that from the Federal Government's 
perspective the violent death of an American citizen in Puerto 
Rico is of no less consequence than the violent death of any 
American citizen, be it in Florida, New York, or any other 
state.
    ICE has made several high-profile drug arrests on the 
island over the past year. But I remain concerned that ICE and 
other DHS component agencies are not devoting sufficient 
resources to address the surge in drug trafficking through 
Puerto Rico.
    I, thus, have a couple questions for you. First, how has 
DHS responded to the balloon effect I just described whereby 
drug traffickers are shifting part of their operations from the 
Southwest border to the Caribbean? Have you increased the 
personnel and assets you are deploying in the Caribbean?
    You know, I am a former AG in Puerto Rico and I know very 
well that this is like a moving target. You need to make sure 
that your resources are well placed. But you cannot just leave 
one area unprotected because they just go there.
    The second question--and I just want to know whether you 
have given additional attention and resources to Puerto Rico 
and the--and the Caribbean region. The second question I have 
is the following. It is related.
    Most of the drugs entering Puerto Rico come from the 
Dominican Republic these days. But there has been a surge as 
well entering the island from the east coast, particularly from 
the smaller Caribbean islands, and I understand that it takes 
the Coast Guard over an hour to respond to a suspected incoming 
drug shipment in the eastern part of the island and that CBP's 
presence in the area is minimal.
    Again, what is the department doing in terms of CBP 
resources, Coast Guard resources? So, again, first question is 
in general--are you taking a look at our area and devoting 
additional resources as you should in terms of protecting our 
borders? This is the southernmost border, and secondly, eastern 
Caribbean--what is happening over there? Because I am 
concerned.
    Ms. Napolitano. Yes, Representative. First, I think this 
is--I don't want to make too big a point of this but I think it 
is important to note that the--that the fact that drug 
trafficking has moved into the littorals, into--into the area 
you suggest, I think, is evidence of the fact that the 
Southwest border is actually been fortified to a large degree 
so and--and now the traffickers are having to move.
    Mr. Pierluisi. I agree.
    Ms. Napolitano. We are looking at that. We are looking at 
do we have the right amount of Coast Guard assets already 
deployed there--do we need to change the number and also the 
kinds of vessels we have. We have a BEST team now in Puerto 
Rico.
    We--we--we will evaluate and continue to evaluate whether 
we have the right number of agents associated with that. We are 
working with the OCDETF unit down there, among other things. 
But the answer to your question is, yes, I am aware of it, yes, 
I share your concern, and yes, we are looking at our 
deployments there.
    Mr. Pierluisi. Okay. I have met with Attorney General 
Holder to go over the details of--of this situation in the 
past, and I would really appreciate it if you would give me the 
time to sit down with you and get to the specifics at some 
point in the near future.
    Ms. Napolitano. We will make sure you get briefed.
    Mr. Pierluisi. Thanks.
    Mr. Smith. Thank you, Mr. Pierluisi.
    The gentleman from Arizona, Mr. Quayle, is recognized.
    Mr. Quayle. Thank you, Mr. Chairman, and thank you, Madam 
Secretary.
    I just want to get some clarification. Earlier you 
testified that Congress has only appropriated about $400,000--I 
mean, 400,000 deportations. Is that based on the $23,000 number 
for--that you state is the cost for--after, you know, arrest, 
removal and deportation?
    Ms. Napolitano. I would have to check.
    Mr. Quayle. So you----
    Ms. Napolitano. But it is a--it is a commonly used number. 
It has been the same for several years and it is the number 
referred to in the Appropriations bill.
    Mr. Quayle. It is the number--they--so the Appropriations 
bill actually has 400,000?
    Ms. Napolitano. May not be in the bill but in some of the 
supporting materials in the Committee.
    Mr. Quayle. Because usually it is just the--the actual 
dollar amount, right? Okay.
    Ms. Napolitano. Exactly right. So I think it is in some of 
the materials provided to the Committee.
    Mr. Quayle. Okay. Because I am trying to--earlier Mr. Coble 
was talking to you about the discrepancy between the ICE number 
and the number that you have used in--in testimony where you 
were saying it is $23,000 to $30,000 per actual person who is 
deported.
    And ICE basically said--they said it was about $12,500, and 
I appreciate that you are going to get us the information in 
where that discrepancy is. But when you were speaking earlier, 
you said kind of just off the top of your head that maybe the 
ICE one doesn't actually include the amount that could be used 
in--for trial. Is that right?
    Ms. Napolitano. Well, it may not include the Justice 
Department factors in there, and I will just have to look into 
that for you.
    Mr. Quayle. Okay. Because--because what I am trying to make 
it clear or get a clear understanding is that last week when 
you testified before the Senate Judiciary Committee, you stated 
that the number was $23,000 to $30,000 and that was only for 
what DHS has and that excluded the Department of Justice.
    So is the $23,000 to $30,000 with Department of Justice or 
not?
    Ms. Napolitano. We will get back to you on that.
    Mr. Quayle. Okay.
    Ms. Napolitano. I just--I want to be very clear on that----
    Mr. Quayle. Yeah.
    Ms. Napolitano. Because obviously you all want to--want to 
make some points with those numbers. So you need to have the 
accurate numbers.
    Mr. Quayle. Yeah. We are--we are just trying to figure out 
exactly where the cost breakdown is----
    Ms. Napolitano. Indeed.
    Mr. Quayle [continuing]. And that--and that is because--I 
would also like, if you could, kind of--if that number came 
from internal computations of the actual breakdown in the 
costs--if you could tell us that.
    Is that actually from internal computations or did you get 
it from external sources?
    Ms. Napolitano. I will find out for you. It may be--it 
could be a number of sources----
    Mr. Quayle. Okay.
    Ms. Napolitano [continuing]. Internal, OMB, Appropriations 
Committee. A lot of people have input into what is appropriated 
there.
    Mr. Quayle. Because when we were looking into this--because 
that number just kind of jumped out at me when--when it was--
when it was stated, and we called over and they said that that 
number actually came from the Center for American Progress, 
which is a liberal think tank that has been pushing the--the 
high costs of deportations.
    And I would hope that DHS would be more reliant on their 
actual internal numbers rather than relying on an external 
think tank. So if you could get some clarification on that as 
well.
    Ms. Napolitano. Right. But I think your point, and--and I 
think it is important for--for this Committee in particular--
the Judiciary Committee--the immigration system crosses Federal 
agencies and, indeed, it crosses branches of government, and 
one of the things--because we have never addressed 
comprehensively immigration in the Congress, what gets lost in 
there is what the total cost of the system is.
    Gets divided between different Appropriations 
subcommittees. It gets divided, you know, some here the--what--
what DOJ gets, what we get, et cetera. So one of things I think 
would be beneficial is to look at the system as a whole.
    Mr. Quayle. Well, I--I--I appreciate that, but I think the 
other thing that we are looking at is that as Administration 
officials and you as well have said that you don't have the 
resources to be able to actively and pursue deportation just 
because the money is not really there and you said that there 
is only 400,000 people that you can actually deport.
    Ms. Napolitano. Yeah, I understand the point you all----
    Mr. Quayle. So I am just trying to say, you know, the 
breakdown of cost and make sure that we are actually doing this 
in an efficient manner. I think that that is extraordinarily 
important, especially when we are in these tough budgetary 
times.
    Ms. Napolitano. Indeed.
    Mr. Quayle. And switching topics, I was just wondering and 
this has nothing to do with any specific state law but as we 
are looking Federal Government and Federal budget restraints 
and the problems that the Federal Government is having to live 
within its means and we don't have the resources, as some have 
said, to actually enforce our immigration laws. They are just 
making it more difficult.
    If certain states want to actually act as force 
multipliers, shouldn't we be looking to them and--and actually 
embracing that to be able to enforce those immigration laws?
    Ms. Napolitano. Well, I think it is important to recognize 
that what is involved here is who sets the immigration 
priorities for the country, and that is a Federal 
responsibility.
    Mr. Quayle. Absolutely.
    Ms. Napolitano. Now--now, we do work with states and 
localities. The primary way we do it now is through Secure 
Communities. And as you have heard in earlier conversation from 
some of the members, we--we--we have been criticized by some 
communities that don't want to participate in Secure 
Communities but I believe it is an essential tool moving 
forward to help us direct our prosecutorial resources.
    Mr. Quayle. Okay. Great. Thank you, Madam Secretary. I 
yield back.
    Mr. Gallegly. The gentleman from Florida, Mr. Deutch?
    Mr. Deutch. Thank you, Mr. Chairman. Madam Secretary, thank 
you for being here. Thanks for the fruitful exchange.
    I am concerned with the Department of Homeland Security's 
formula that is used to determine the tier status of urban-area 
security initiatives for purposes of receiving funding.
    Specifically, I am extremely concerned with the application 
of the department's formula to the Miami-Fort Lauderdale UASI 
in the state of Florida.
    The Miami-Fort Lauderdale UASI encompasses Palm Beach, 
Broward, Miami-Dade and Monroe counties, including the district 
I represent.
    The Miami-Fort Lauderdale UASI has more than 5.6 million 
residents living throughout--throughout these counties' 
population with the highest level of density and diversity.
    There are more than a hundred municipalities, four 
international airports, large convention centers, numerous 
sports venues that host major sporting events and other 
critical utility and water infrastructure.
    It is also home to agriculture, banking, health care and 
other major industries. Moreover, the U.S. Southern Command 
Homestead Air Reserve Base, U.S. Coast Guard operations at Air 
Station Miami and Station Miami Beach, the National Access 
Point Center for the Americas, Turkey Point Nuclear Power Plant 
and the National Hurricane Center are located in the Miami-Fort 
Lauderdale UASI.
    It also covers more than 300 miles of coastline. An 
extensive coastline is very porous and is a risk for drug and 
arms trafficking and other threats. Many large cruise ships 
dock at Port Everglades in Fort Lauderdale and the Port of 
Miami, both of which are located in the Miami-Fort Lauderdale 
UASI.
    In fact, Port Everglades is the home port of more cruise 
ships than any other port in the world. These cruise ships 
transport thousands of families and crew members in and out of 
the United States.
    In addition, Miami-Fort Lauderdale UASI is a gateway to 
South America and Central America for business, tourism and 
international trade. Millions of people and commerce cross the 
border through south Florida airports and ports.
    In fact, the Port of Miami, Madam Secretary, imports and 
exports more than 7.8 million tons of cargo annually to more 
than a hundred countries and 250 ports around the world, and 
Port Everglades, Florida ranks as the 12th leading container 
port in the Nation, exporting to and importing from more than 
150 ports in 70 different countries.
    The port is also the primary storage and distribution 
center for refined petroleum products for all of south Florida, 
supplying nearly one-fifth of entire state's energy 
requirements, ranging from propane and gasoline and diesel and 
jet fuel.
    Yet, despite being major centers of economic security and 
tourism activity, the Miami-Fort Lauderdale UASI inexplicably 
does not qualify for Tier One funding out of the Department of 
Homeland Security's current funding formula.
    Because the Miami-Fort Lauderdale UASI does not qualify for 
Tier One funding, it will have its funding for the upcoming 
year dramatically reduced, cut almost in half--reduced by $8 
million from $17 million down to $9 million.
    The Department of Homeland Security's funding formula is 
limited to accounting for legal and border crossings. This 
formula, therefore, does not include the more than 300 miles of 
coastline, four international airports and several cruise ship 
ports that are located within the Miami-Fort Lauderdale UASI.
    Several questions--shouldn't these air and water entry 
points in the U.S. be considered with legal and border 
crossings by the department in its formula?
    And it is my understanding that the Secretary of Homeland 
Security has the discretion to expand the number of UASIs that 
are included in Tier One funding. In fact, there has been 
expansion recently. Currently, 11 UASIs are eligible for Tier 
One funding.
    And so for the reasons that I have laid out, for the safety 
and security of the millions of Americans who live in, do 
business in and visit south Florida, I would urge you in the 
strongest possible terms that you expand the Tier One funding 
to include Miami-Fort Lauderdale UASI.
    I would welcome any response now or following this 
Committee meeting.
    Ms. Napolitano. Well, I would make two points. One is the--
the reduction in Tier One identification was in part a reaction 
to Congress's reduction--significant reduction in UASI funding 
overall, and the question presented to us and to me was whether 
we just dole out smaller amounts of money or do we continue to 
fully fund at prior year levels the Tier One locations.
    We made the decision to--to--to restrict the number of 
locations so that we could fully fund the Tier Ones.
    Tier Ones are evaluated by risk and consequence. So 
national elements such as you described--coastline, nuclear 
reactors, critical infrastructure, economic impact--are all 
taken into account.
    As I recall, when we made the decision to cut back and then 
to identify Tier One, Tier Two, there was a clear delineation 
from an evaluative standpoint between the top 10, and 11 was 
virtually identical to 10, so top 11 and those below it, and 
that is--that is where Miami was.
    If--if Congress puts more money into UASI or goes back to 
prior year levels, we can reconsider that decision.
    Mr. Deutch. But--but the decision--the decision to expand 
Tier One is a decision made by your office.
    Ms. Napolitano. That is correct.
    Mr. Deutch. And, in fact, Tier One has been expended in the 
past not just to include----
    Ms. Napolitano. When there was money, yes.
    Mr. Deutch. I understand, but the further--and I--I also 
understand the decisions Congress makes about funding, but 
the--it is the decision of the Department of Homeland Security 
to keep the Tier One funding the same and slash dramatically 
the funding to the Miami-Fort Lauderdale UASI.
    Ms. Napolitano. I think that the reason, Representative, is 
because the evaluation of risk and consequence did not put the 
Miami UASI into the Tier One status.
    Mr. Deutch. I would urge you to reconsider the--and--and 
realize the--the risk and consequences involved in the 
decision.
    I yield back. Thank you, Madam.
    Mr. Gallegly. Time of the gentleman has expired.
    Mr. Issa?
    Mr. Issa. I thank you, Mr. Chairman.
    Madam Secretary, back in February, I recall that you and I 
were on the phone and on another important issue, but it had to 
come to a premature end or come to an end because you had to 
attend a memorial service for Jamie Zapata.
    Do you remember that conversation?
    Ms. Napolitano. I don't remember the conversation. I do 
remember the murder of Jamie Zapata.
    Mr. Issa. But I won't forget it because it was sort of just 
at a point in which ``Fast and Furious'' obviously was becoming 
a major issue, both with Senator Grassley and with my Committee 
next door.
    Since that time, we have done a lot of work and I--I want 
to run you through some questions that concern me that fall 
within your lane.
    One of them is earlier today, you have repeatedly said that 
this was an ATF operation. Out of concern for the investigatory 
process and the prosecutions that are ongoing, we have--we have 
avoided interviewing Lane France. Do you know Lane?
    Ms. Napolitano. I do not.
    Mr. Issa. Do you know he works for you? He is an ICE agent 
that was part of the ``Fast and Furious?''
    Ms. Napolitano. I know there was a field agent assigned to 
a task force--this is all things I have learned in the wake of 
your investigation--assigned to a task force for deconfliction 
purposes in the wake of the two ICE matters that were resolved 
by the AUSA to be within the context of ATF.
    Mr. Issa. Well, it is--it is our judgment that he likely 
was very aware that there was gun walking going on, had that 
information. The question is, when you assign somebody like 
that, do you have a flow of information back to your department 
so that your--somebody in your department could have, should 
have or would have known about the operation?
    Ms. Napolitano. Representative, we have hundreds of 
operations and--and thousands of agents on a daily basis. So to 
my knowledge, the fact that an agent was assigned somewhere 
about some matter would not necessarily come to----
    Mr. Issa. So----
    Ms. Napolitano [continuing]. Even--even to ICE 
headquarters, much less to DHS headquarters.
    Mr. Issa. Okay. So I guess I am going to make an assumption 
here and that is that it is a fire and forget. You send----
    Ms. Napolitano. Pardon?
    Mr. Issa [continuing]. You send these people over there.
    Ms. Napolitano. I'm sorry. I couldn't hear you. Sorry----
    Mr. Issa. Fire and forget, kind of like the missile that 
you just send off and it looks for heat, and if it hits 
something so be it, even if it is one of the friendly aircraft.
    Ms. Napolitano. Oh, I don't think that is a----
    Mr. Issa. Well, let's go through this.
    Ms. Napolitano. Accurate----
    Mr. Issa. You--you testified that in December, you became 
aware of ``Fast and Furious.''
    Ms. Napolitano. I said after the death of Agent Terry, yes.
    Mr. Issa. Okay. And the details you became aware of 
basically after our investigation began, putting those details 
out.
    Ms. Napolitano. I became aware, as I testified here and in 
other Committees, after the death of Agent Terry and--and knew 
some of the details and the name ``Fast and Furious'' certainly 
no later than March.
    Mr. Issa. Okay. You testified here today that you--you 
haven't talked to Eric Holder about this.
    Ms. Napolitano. That is correct.
    Mr. Issa. And he testified here that he only knew about it 
a few weeks before the interview he had in May here before this 
Committee and that he basically heard about it in the 
newspaper.
    So you have two dead agents that worked for you--one north 
of the border, one south of the border--and particularly in the 
case of Brian Terry, he was gunned down with two weapons from 
``Fast and Furious.''
    It has been months, and you tell me that you are not--you 
were not--you were not doing it because of an IG investigation. 
Well, let's go through a few questions here, Madam Secretary.
    Ms. Napolitano. Well, wait--wait just a minute.
    Mr. Issa. No, no. No, wait----
    Ms. Napolitano. Wait just--wait just a minute.
    Mr. Issa. Let me finish my question.
    Ms. Napolitano. Wait just a minute.
    Mr. Issa. Madam Secretary, let me finish my question.
    Ms. Napolitano. Go ahead, but that insinuation is not an 
accurate----
    Mr. Issa. Your--Madam Secretary, you--you--we could have 
the record read back. It would take a few minutes but----
    Ms. Napolitano. No, it is the insinuation I am objecting 
to. But go ahead and ask your question.
    Mr. Issa. Look, the--you said because of an IG 
investigation you were not having further investigation, except 
you became aware of this in December. The IG investigation 
began in February.
    For 3 months, you had a dead Border Patrol agent and there 
was no IG investigation. What did you do between December and 
February to find out about ``Fast and Furious'' since a--and we 
can give you the documents, happily. We would get you the 
unredacted ones if we could. You get them from other parts of 
government.
    You--people on the ground knew those were ``Fast and 
Furious'' weapons found at the scene within hours. So it wasn't 
something that wasn't known. It was known at the time.
    The question is, a Homeland Security employee is gunned 
down, two weapons found at the scene part of ``Fast and 
Furious.'' Agents on the ground know that it is ``Fast and 
Furious'' before Brian Terry was laid to rest.
    Three months go by, and now--and today you told us about an 
IG investigation. My question is, first of all, do you have an 
IG and are you going to have your IG look into what happens 
when you segund agents and they are aware of gun running or, 
sorry, gun walking and do nothing? Is that appropriate for you 
to have your IG investigate? Yes or no, please.
    Ms. Napolitano. Well, that--I think I--that question merits 
a lengthier response and I am glad to give it to you.
    Mr. Issa. I will look--I will look forward to that in 
writing. But back to the basic question. You knew about--when 
Brian Terry was gunned down you knew, in fact, he was gunned 
down.
    People on the ground knew that he was gunned down with 
``Fast and Furious'' weapons. Three months went by. What did 
you do between--between December and February to find out the 
details about his loss of life, and aren't you outraged here 
today that you--if you were not informed that you were not 
informed that weapons allowed to walk into drug dealers' 
cartels' hands had killed one of your agents and during those 3 
months they kept it from you?
    Ms. Napolitano. I think your insinuation that----
    Mr. Issa. Ma'am, please answer the question. Don't--don't--
please don't talk in terms of insinuation.
    Ms. Napolitano. Mr. Chairman, may--may I have the 
opportunity to answer, please?
    Mr. Gallegly. Madam Secretary, I--if you would try to 
succinctly answer his question, and then if you would like to 
elaborate the Chair will give you the time.
    Ms. Napolitano. Well, what--let me make a suggestion, if I 
might, because he is--the representative is combining a lot of 
different things. If he would give me his questions I will be 
happy to respond in writing.
    Mr. Issa. Well, the one question I would like a succinct 
answer to is, you became aware that Brian Terry had been gunned 
down. People on the ground at that time knew they were ``Fast 
and Furious'' weapons. That was December.
    Between December and February of 2011, what did you do to 
discover further the conditions around his death, one? And then 
the second question, which was equally straightforward, aren't 
you here today furious that the Justice Department--not ATF, 
the Justice Department--withheld from you the knowledge of 
``Fast and Furious'' during this entire period of time, 
including one in which you had an agent dead?
    Ms. Napolitano. I think we all should be outraged at the 
death of Agent Terry, and I think the first thing is to 
recognize who actually killed him, and that our number-one 
priority was to make sure the shooters were found--some had 
gone back into Mexico--and that the FBI was in charge of that 
investigation.
    Several days, as quickly as I could get to Arizona after 
his death, I met with the FBI, their agents in charge. I met 
with the AUSA who was going to conduct that investigation, and 
that was my number-one concern--that those responsible for the 
shooting death of Agent Terry were brought to justice, and that 
is what I was being kept apprised of.
    I will be--I would be happy to answer your other questions 
in writing.
    Mr. Issa. Ma'am, we will be glad to follow up in writing, 
and I thank the Chairman for his indulgence.
    Mr. Gallegly. The time of the gentleman has expired.
    Ms. Sanchez?
    Ms. Sanchez. Thank you.
    Madam Secretary, we appreciate your presence today before 
the Committee, and as you can see, there is a broad range of 
questions that people can ask.
    Ms. Napolitano. I have noticed that.
    Ms. Sanchez. And you are asked to be an expert on--on each 
and every one of them and to know information at the tip of 
your fingertips, which I know is not always possible.
    Earlier in--we appreciate the effort nonetheless--earlier, 
you mentioned the Secure Communities program and it is 
principally that program that I want to discuss with you.
    Studies by the Warren Institute showed that 93 percent of 
those identified through Secure Communities were Latino as of 
2010, and given the scope of Secure Communities that number 
seems a bit--well, not a bit--it seems alarmingly high to me 
and hard to explain simply by saying, you know, with sample 
size or mathematical variance.
    Many of my constituents, for example, look at that number 
and conclude that the Secure Communities program may be 
inadvertently encouraging local law enforcement officials to 
racially profile against the Latino community. And I am not 
suggesting that this is overt encouragement or even conscious 
activity on behalf of local law enforcement but that number 
does really trouble me.
    I am wondering if, perhaps, you have a way to explain the 
93 percent figure and what steps DHS has taken or could 
possibly take to address the concerns that are raised.
    Ms. Napolitano. Right, and, again, we get into these 
numbers things and you have to look at the period evaluated and 
the sample and all that.
    But I think, more fundamentally, what we have done is 
through our Civil Rights and Civil Liberties unit established 
monitoring of the numbers--as we now have enough communities 
that are in the program that you are starting to get a 
substantial number--to monitor those numbers to see whether any 
are out of kilter with criminal prosecutions generally in an 
area and if statistically there are significant variances to 
have the ability to go in and actually look at A files or 
things of that nature to see what underlies the numbers.
    So--and this is intended to be a very transparent process. 
We do not intend to keep those numbers secret. They will be--
they will be put or posted when they become available with 
appropriate explanation.
    Ms. Sanchez. Okay. But can you understand the concern 
that--that folks might hesitate to cooperate with local law 
enforcement if, you know, this perception, you know, backed by 
the initial figures, lead people to suspect that certain 
communities are, in fact, being racially profiled?
    Ms. Napolitano. I can understand that concern.
    I can also understand that we have--we have Secure 
Communities now in enough jurisdictions to know how you work 
with Secure Communities, how police departments continue their 
relationship with the local community, how you use neighborhood 
policing in the right way with respect to Secure Communities. 
There are best practices that are developed that are being 
shared.
    So I understand the concern. What I am suggesting is that 
we need to continue to watch it, to watch the numbers, to do it 
in a statistically valid way, to be able to make those numbers 
transparent, and then to work with and share best practices 
among all of the jurisdictions now using the program.
    Ms. Sanchez. Okay. Following up on that, when U.S. citizens 
or legal residents are administratively arrested under the 
Secure Communities program, approximately how long are they 
detained for?
    Ms. Napolitano. Well, under the new detainer form they 
cannot be detained longer than 48 hours.
    Ms. Sanchez. And during that process, what information are 
they given and are they allowed to contact counsel or their 
families during that process?
    Ms. Napolitano. There is a--there is a whole--there is a 
new detainer form that we have put into place. It is in 
English. It is also one available in Spanish--I think other 
languages as well. It has numbers to call and all sorts of 
information on it. We could get you a copy of it.
    Ms. Sanchez. It would be helpful because, you know, part of 
the concern is that if legal permanent residents or citizens 
are somehow arrested under this or taken into custody, I should 
say, under this program that they would be able to communicate 
with family and----
    Ms. Napolitano. Well, they are not arrested, if I might, 
under Secure Communities. Secure Communities only comes into 
play after an arrest and a booking, and what Secure Communities 
is is a data-sharing agreement between us and the FBI to check 
fingerprints not just against criminal databases but against 
immigration databases.
    So it is not like there is a Secure Communities task force 
out there arresting people. It is an after the--after the 
booking process.
    Ms. Sanchez. I understand. I misspoke, but my concern being 
that there could be legal permanent residents or citizens that 
are caught up in this and not--they don't have an opportunity 
to contact family or counsel to sort of----
    Ms. Napolitano. No, that--I don't think so and the reason 
is if--if--one of the things we run them through is IDENT and 
if there is an IDENT match and it shows that they are LPRs or 
citizens, we stop right there. So nothing else happens.
    Ms. Sanchez. So there is never an incidence in which--in 
which a legal permanent resident or a citizen could be 
accidentally deported because of a program in which they have 
been picked up?
    Ms. Napolitano. Look, I--we deal with so many and, of 
course, it would be outrageous to have that kind of a 
situation. But what I am suggesting is--what I am suggesting--
--
    Ms. Sanchez. And I would suggest that that has happened in 
the past.
    Ms. Napolitano. Well, there have been instances in the 
past, but under this program once an IDENT match is made and 
the IDENT match reveals that this person is a citizen or--or a 
lawful permanent resident, that is it. It is done. We don't put 
any detainer or anything on that individual.
    The local authority may hold them under whatever criminal 
law they may have violated but we will not be putting a 
detainer on them.
    Mr. Gallegly. Time of the gentlelady has expired.
    Mr. King?
    Mr. King. Mr. Chairman, I would like to yield to the 
gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr.--thank you, Steve. Secretary, 
since you seemed a little fuzzy about Elibiary, let me make 
sure you leave here understanding. He was a featured speaker at 
the tribute to the great Islamic visionary, Ayatollah Khomeini, 
December 11th of 2004.
    You had him on your Countering Violent Extremism working 
group. You promoted him and from your own website, Secretary 
Napolitano swears in Homeland Security Advisory Council 
members. You swore him in and according to your testimony here 
today that is where he got the security clearance.
    He has written glowingly of Kotbi, on whom Osama bin Laden 
relied heavily for his barbarism justification. He has written 
against the trial and conviction of the Holy Land Foundation's 
funding of terrorism.
    He has still remained in this Homeland Security Advisory 
Council and now he has accessed a week ago the state and local 
intelligence community database.
    He took documents that said ``For Official Use Only'' and 
shopped them with national media. It appears not only is our 
security being compromised--a secure system--but he is using it 
to help his friend politically, the President.
    I have got one question and it is not a ``got you'' 
question. There is nothing confusing about it. Before you came 
in here today, were you given information about Elibiary using 
the state and local intelligence committee the--community 
database and taking information he downloaded and shopping it 
to the media?
    Ms. Napolitano. No.
    Mr. Gohmert. If anyone from Homeland Security, your staff, 
advised anyone else that you were briefed last night they would 
be wrong. Is that correct?
    Ms. Napolitano. Yes.
    Mr. Gohmert. Thank you.
    Thank you, Mr. King. I yield back.
    Mr. King. Thank you, and reclaiming my time.
    Thanks for your testimony, Madam Secretary. It just caught 
my attention when you responded to the gentleman from Texas, 
Mr. Poe, and this--the discussion about prosecutorial 
discretion, and you referenced Article II, Section 3 of the 
Constitution.
    Could you expand on that a little bit and about how Article 
II, Section 3, grants prosecutorial discretion?
    Ms. Napolitano. Well, Article II, Section 3, says that the 
executive branch shall take care to faithfully execute the laws 
of the United States, and then when you read the U.S. Supreme 
Court authorities interpreting that Cheeney or Haney, whatever, 
and then Reno v. Arab American Anti-Discrimination League is 
the one that is specific to immigration, that is taken and put 
into the analysis of how you exercise discretion or the source 
of discretion----
    Mr. King. Well, thank you----
    Ms. Napolitano [continuing]. In the immigration context.
    Mr. King. And I expected that would be your response. I 
just wanted to make the point that the Constitution doesn't say 
so. You can make those references to those--those cases and I 
won't take issue with that. But it does say, ``He shall take 
care that the laws be faithfully executed.''
    I would also point out in the President--the President's 
oath, ``I will faithfully execute the office of president of 
the United States,'' by extension that oath then applies to his 
officers that also take that oath. Would that not be correct?
    Ms. Napolitano. That is true.
    Mr. King. Okay. Then I just wanted to clarify that. It 
isn't so much an issue. It is this--that when--when we see the 
litigation that is coming forward against Alabama, Arizona and 
it looks like any state that wants to pass immigration laws, 
the executive branch is litigating that through the courts.
    Now, if they are successful--if Eric Holder is successful 
in scrubbing these immigration laws from the states--that 
leaves then the Federal Government with the exclusive authority 
to enforce immigration law, does it not?
    Ms. Napolitano. Well, again, as I've referenced several 
times, when we have partnerships like Secure Communities, that 
indeed helps us focus the exercise of that discretion.
    Mr. King. Then let me restate my question.
    If the attorney general is successful in the litigation 
that he has initiated on these states that have passed 
immigration laws, rather than the Secure Communities component 
of this or the 287(g) component of this, there would be then no 
latitude for states to pass immigration laws that they would 
enforce at their discretion.
    Ms. Napolitano. There would be no latitude for states to--
to make--pass laws that change Federal immigration policy.
    Mr. King. I don't think that is--I will disagree with that. 
But rather than dig down into that and burn up our time, I will 
just make this point--that it looks to me that the 
Administration is going down the path of shutting down all 
state legislation on immigration regardless of whether it goes 
beyond the mirroring the Federal law, which is what Arizona was 
designed to do, and that in the end it takes away the authority 
of the states to do that--to do immigration enforcement.
    I will take you also to some other data that Judge Poe 
addressed and that is the 34-and-a half-percent of foreign 
nationals that are occupying the jails on the border states. 
Are you familiar with a GAO study that is March 2011 criminal 
alien statistics and it addresses the--okay. Then I have it in 
my hand and I will reference it.
    In it, it has data in there that shows that we have 25,064 
arrests of criminal aliens for homicide.
    Now, that covers some years, I will admit, but I would put 
that up against the losses that we have had on the southern 
border--25,064 in arrests for homicide generally means at least 
one grave, and that generally that are--those are Americans 
that are--that are killed at the hands of criminal aliens.
    And so when I heard you reference the 34,000 beds and that 
is all that Congress gives you to work with and you have to use 
prosecutorial discretion in order to utilize those beds to the 
best of your ability, what I don't remember hearing--and I have 
been here 9 years--is a request from the Administration, first, 
to look at all of the assets that are deployed on the southern 
border.
    It wouldn't be just your department, obviously. I am going 
to suggest that that ranges in the area of $12 billion across 
that southern border--about $6 million a mile. I have yet to 
hear anybody put all those assets together and make the ask how 
many prison beds, how many prosecutors, how many judges--how do 
we actually get 100 percent enforcement on that border so we 
can begin to save some of these 25,064 lives.
    Have you put together any kind of a proposal that would 
actually rearrange the assets so that we could bring 100 
percent enforcement rather than letting drug smugglers go 
because we don't have the prosecutors or having to do, if it is 
something you are reluctant to do, this administrative amnesty 
that we call it and this discretion that you call it? Have you 
put that package together?
    Ms. Napolitano. Well, I am going to take the--your--this in 
two bites. Number one, under our policy, somebody who is 
accused of homicide would be detained and would be a priority 
case and we would have created room on the master docket to 
move that case through and--and we would get that case after 
the person served his sentence for the--for the homicide.
    Mr. King. But they might released into society under 
Zadvydas, wouldn't they?
    Ms. Napolitano. Secondly, as I mentioned earlier, one of 
the things I think it is important for this Committee to look 
at is the entire immigration system from where we get 
investigation to prosecution to--to incarceration and then 
potentially--and then to the removal.
    And each one of those crosses different Federal agencies. 
So we have a comprehensive Southwest border strategy we use 
with ICE and CBP, to some degree CIS. We have moved ICE 
resources down to the border. We have moved detention beds down 
to the border.
    We have more resources at the Southwest border than have 
ever existed before. But that is not to say that the Congress 
in its own organization doesn't have the ability to look at it 
overall.
    Mr. King. What are the sum total of the assets and what is 
asked of this Congress to give you all the tools you need to 
give a hundred percent enforcement on the border?
    Mr. Gallegly. The time of the gentleman has expired but I 
will allow you to answer that question and then we will move 
on.
    Ms. Napolitano. I think the best way to answer it is to say 
that we believe that with the asks we have made for--
particularly for CBP at the border and--and the movement of ICE 
resources to the border that from the DHS perspective we have 
been able to greatly improve and secure that border.
    Mr. Gallegly. Time of the gentleman has expired.
    Mr. Goodlatte?
    Mr. Goodlatte. Thank you, Mr. Chairman. Madam Secretary, 
welcome. The U.S. Border Patrol agents that are employees of 
the Department of Homeland Security and under your jurisdiction 
have tough, tough jobs. They are out there in the middle of the 
night trying to track down illegal aliens and drug smugglers, 
weapon smugglers and other contraband and so on.
    They are fired at, sometimes with weapons provided by other 
government agencies, sometimes wounded, sometimes killed. I 
wonder if you could comment on a court decision that came down 
in the case of the prosecution of one of your agents, a Jesus 
E. Diaz, Jr., who was sentenced last week to 2 years in prison 
for what could best be described--in fact, how the Washington 
Times described as improperly lifting the arms of a handcuffed 
15-year-old drug smuggling suspect who was--that is a common 
technique used by law enforcement to force people to the ground 
to control them is to--is to lift their arms to force them down 
onto the ground if they are struggling, attempting to escape 
and so on.
    This was--this prosecution apparently took place at the 
behest of the Mexican government and was conducted by the same 
U.S. Attorney's office that prosecuted two agents not under 
your watch but under the previous Administration for having 
shot at another drug smuggler. They were subsequently granted a 
pardon or had their sentences commuted by President Bush. You 
may recall those two agents.
    Are you familiar with this case involving Jesus Diaz?
    Ms. Napolitano. I am not familiar with that decision.
    I can agree, however, with your beginning statements that 
our Border Patrol agents have very difficult jobs under very 
difficult physical circumstances and they do. It is a 24/7 job 
and they are doing a remarkable job down at the border.
    Mr. Goodlatte. This case has been pending for--for a few 
years now, and that seems a pretty serious sanction--two years 
in prison. Both your Inspector General's office and the Office 
of Professional Responsibility at ICE cleared this agent of any 
wrongdoing but nonetheless he was subsequently prosecuted.
    The Law Enforcement Officers Advocates Council, an 
organization that obviously looks out for the interests of 
people who are doing these dangerous jobs, says that this was a 
totally improper prosecution of this individual, and you are 
not at all familiar with this?
    Ms. Napolitano. I am not.
    Mr. Goodlatte. Would you look into this and report back to 
the Committee and let us know what your thoughts are about this 
prosecution of one of your agents?
    Ms. Napolitano. I would be happy to review the decision.
    Mr. Goodlatte. I would appreciate that.
    Let me ask you this. If you are not familiar with this, how 
often do you meet with Attorney General Holder?
    Ms. Napolitano. Oh, it varies. Not that often, really, in 
the context of things.
    Mr. Goodlatte. Do you think it would be helpful, in light 
of the ``Fast and Furious'' debacle, in light of prosecutions 
like this one, that that department of the government ought to 
be informing your department on a more regular basis of what 
they are undertaking so that you can be better informed and be 
outspoken in representing the interests of your agents and the 
responsibilities of your department?
    Ms. Napolitano. Well, sir, I think I am outspoken in the 
interests of my agents and I do think there will be lots of 
lessons learned from ``Fast and Furious.''
    Mr. Goodlatte. But if you are not informed, if you don't 
know about these incidents----
    Ms. Napolitano. Well----
    Mr. Goodlatte [continuing]. And if you don't know about 
``Fast and Furious'' and it went on for a long period of time 
and you are not informed, how can you be effective?
    Ms. Napolitano. You know, what is the question?
    Mr. Goodlatte. The question is, shouldn't you have closer 
communications with the other principal law enforcement agency 
of the Federal Government so that you can know what is going on 
when your agents are being endangered by their allowing weapons 
to walk, when your agents are being prosecuted by their U.S. 
Attorneys?
    If pressure was put on our government by the Mexican 
government to do this prosecution of one of your agents, don't 
you think you or somebody in your department should have been 
informed of that, either by the Secretary of State or by the 
Attorney General or somebody involved in this kind of cross-
border politics where drug smugglers here--here for the second 
or third time?
    I am aware of a prosecution of a--of a deputy in Texas as 
well for attempting to stop drug smugglers. And yet, the people 
who are getting prosecuted aren't the drug smugglers in these 
cases--they are the people who are trying to enforce the law.
    Ms. Napolitano. Well, as I said earlier, I think my number-
one interest when we had a dead agent, Agent Terry, was to get 
the shooters--to get those who killed him, some of whom had 
fled into Mexico. And I think that was----
    Mr. Goodlatte. I think that is a--that is a--that is a 
laudable goal, Madam Secretary, but it was too late. The fact 
of the matter is there needs to be better communication so 
somebody can say, ``Whoa, this is a crazy idea. You are giving 
guns to drug smugglers that are going to come back and be used 
to kill my agents.''
    Ms. Napolitano. And it--and, Representative, it--it will 
be, and I think this Committee has to avoid a rush to judgment 
here. But it seems to me that there will be lessons learned 
from this and there very well may be changes in the field as a 
result of this.
    The question you asked me, however, was how often I met 
with Attorney General Holder, and I was saying in the context 
of things, given his schedule, my schedule, the myriad 
responsibilities we each have, not that frequently.
    Mr. Goodlatte. I hope that you will make an effort to--if I 
might have leeway to ask----
    Mr. Gallegly. Without objection.
    Mr. Goodlatte. One more question.
    You have indicated you will investigate this matter with 
regard to Jesus Diaz Jr., one of your Border Patrol agents, who 
is now facing 2 years in prison.
    If the prosecution in this case--if the conviction is not 
overturned on appeal, will you recommend to President Obama 
that he pardon Agent Diaz? If you find--if you find, as your 
Inspector General found and as the ICE Office of Professional 
Responsibility found, that there was no wrongdoing on his 
part--if you find that to be indeed the case, would you 
recommend to the President that he protect your agent?
    Ms. Napolitano. You know, Representative, I don't play 
what-ifs. I will be happy to review the case and get back to 
you.
    Mr. Goodlatte. Thank you.
    Mr. Gallegly. Time of the gentleman has expired.
    For the record, you--you made a commitment you would review 
this officer's prosecution, and I would request----
    Ms. Napolitano. I said I would review the decision.
    Mr. Gallegly. The decision. You would--you would review the 
decision. Further, would you make a commitment to this 
Committee that you would respond in writing to Mr. Goodlatte 
and also to the Committee your--your assessment of your review?
    Ms. Napolitano. We will get back to the Committee, yes, 
sir.
    Mr. Gallegly. I will take that as a yes.
    Ms. Napolitano. We will get back to the Committee, yes, 
sir.
    Mr. Gallegly. Mr. Marino?
    Mr. Marino. Good afternoon, Madam Secretary.
    First of all, I want to state that I have the utmost 
respect for the ICE agents. I am a former district attorney and 
U.S. Attorney, and I kind of look at us as colleagues, based on 
our experiences, and some of the best people that I have ever 
worked with, and they extraordinary circumstances which they 
work under. So I do have a total respect for those individuals.
    You raised an issue concerning Zadvydas--the Zadvydas case, 
which I think in----
    Ms. Napolitano. Zadvydas?
    Mr. Marino. Zadvydas.
    Ms. Napolitano. Yeah.
    Mr. Marino. Yeah. Excuse me. That within, what is it, 60 
days----
    Ms. Napolitano. Six--six months.
    Mr. Marino. Six months--they would be released if nothing 
is done. Does that just pertain to removal from the country or 
if they have committed a crime----
    Ms. Napolitano. No. I think it is a--it is a due process 
removal case.
    Mr. Marino. So if there is a crime committed by an 
individual who is here illegally----
    Ms. Napolitano. They still serve their sentence.
    Mr. Marino. They still serve the sentence.
    Ms. Napolitano. Yeah.
    Mr. Marino. Do--do you see a problem with that 6-month time 
period whereby you may not, in conjunction with the U.S. 
Attorney's office, have the time to get that prosecution 
completed?
    Ms. Napolitano. Well, I think it--it--it--I think we have 
to be guided by the Supreme Court and when it says that you 
have to--to move, you have to move. I mean, you have to--you 
have to meet the timelines they set.
    Mr. Marino. You stated earlier that Congress needed to act 
more so when it comes to immigrations. Could you explain to me 
what should Congress be doing pursuant to enforcement?
    Ms. Napolitano. Well, one of the areas where I think 
Congress should--should look at enforcement is--is in terms of 
employers. Right now, it is very difficult to getting a felony 
case against employers. The fines are too low to be an--a 
deterrent.
    The employers are the magnet for much of the illegal 
immigration that goes on. So that, I think, is an area that 
deserves examination.
    Mr. Marino. Good. And I prosecuted one of those cases as 
a--as a U.S. Attorney and we did, in fact, send hundreds of 
illegals back but we went after the employers. I would like to 
see more of that because you are right--it is the magnet.
    May I ask you a question and if you would care to share it 
with me? Do you support total amnesty?
    Ms. Napolitano. No.
    Mr. Marino. Okay. Now, you stated earlier--and I don't play 
gotcha so I am just paraphrasing this--that we as prosecutors 
we have slight differences or variations on our discretion on 
why we prosecute a case and why we do not prosecute other 
cases.
    Do you--do you agree with me that there is just not a 
strict line to follow?
    Ms. Napolitano. I think that is accurate.
    Mr. Marino. I am going to go back to the factors for 
considering prosecutorial discretion and give me your input, 
give me your feeling on something like this when--there's a 
list of them and I have not seen a list like this as a 
prosecutor pursuant to other crimes, at least federally. And I 
have had the manuals on my desk and I didn't memorize them by 
any stretch of the imagination, but I have gone through them.
    But do you have any problems with--I am just going to 
rattle off three or four, and you have heard one of these--when 
a person has a U.S. citizen permanent resident spouse, child or 
parent, whether the person is a primary caretaker of a person 
with a mental or physical disability, minor or seriously ill 
relative, whether the person or the person's spouse is pregnant 
or nursing, and finally, whether the person or the person's 
spouse suffers from severe mental or physical illness.
    I am not familiar with any other Federal crimes code that 
applies such strict parameters before enforcing the law. Can 
you help me out here?
    Ms. Napolitano. Well, I--no, I think--here is what we are 
doing, and I think what Director Morton is correctly doing is 
saying, look, we want to prioritize those who are criminals, 
those who are fugitives, those who are repeat violators, those 
who we are capturing at the border, those who raise national 
security interest.
    And so in terms of planning our operations and where we 
want to put our manpower and the like, those are the things 
that really affect the public safety in our community.
    And by deploying Secure Communities, among other things, we 
are now seeing the composition of the numbers--of the numbers 
deported--change, and the composition is changing to reflect 
that we are deporting more criminals than ever before.
    Now, with respect to others who don't fit in those 
priorities, they are not given amnesty. But there are some 
factors to take into consideration, and I think that the memo 
is merely an effort to elucidate some of those factors.
    Mr. Marino. So you don't see this as a--as a strict 
guideline. You are looking at this as all right, the prosecutor 
or the--is the prosecutor because he or she is qualified, they 
are put in there in that responsible position, they have--they 
do have that discretion?
    Ms. Napolitano. That is right, and one of the things that 
we have done is speak with the lawyers--OPLA, the lawyers who 
handle these matters--and treat them like AUSAs who have 
discretion to look at a number of factors----
    Mr. Marino. And as was...
    Ms. Napolitano [continuing]. Just as they would in--in any 
other kind of a criminal case.
    Mr. Marino. And as was stated by the commissioner who 
participated in this, this isn't an invitation to violate or 
ignore the law.
    Ms. Napolitano. Not at all. It is--it is to enforce the law 
in a smart and effective way.
    Mr. Marino. Yeah. I have just a couple other questions. I 
will get through these quickly.
    And I trust that you as a law enforcement colleague, as I 
said before I believe we have some type--something in common as 
being prosecutors--are going to keep politics out of when it 
comes to enforcing immigration laws.
    Ms. Napolitano. That is correct.
    Mr. Marino. We just--we just--both sides, we have to keep 
the political arena very far from us, particularly when it 
comes to immigration.
    Ms. Napolitano. That is right, and one of the things, you 
know, the--the insinuation of politics has--has been made by 
others, and I would remind the Committee--and I actually have 
the testimony--when I testified in the Senate in--in the spring 
of '09, not too long after I had become the Secretary of 
Homeland Security--I said specifically that we were going to 
focus on criminal aliens and that we were going to prioritize 
within the immigration universe.
    And there was no question raised at that time as to whether 
that was proper or not. And that is really--we have done what I 
said we would do 2 years ago.
    Mr. Marino. Mr. Chairman, do I have a couple minutes here?
    Mr. Gallegly. Would you please make it brief?
    Mr. Marino. I will make it brief.
    Mr. Gallegly. A few minutes over so if you just have one--
--
    Mr. Marino. Okay.
    Mr. Gallegly [continuing]. Question. We have two more 
witnesses. It has been a long morning.
    Mr. Marino. Okay. I have--I would never criticize you on a 
political aspect at all. I know how tough the job is. As a 
prosecutor, I am very familiar with it.
    Let's switch gears here for a moment. Let's talk about FEMA 
for 1 second. We had quite a disaster in Pennsylvania where I 
am from, the 10th Congressional District. Many communities were 
destroyed. People just lost their homes.
    One of the questions I raised in Homeland Security is do 
you feel that FEMA has to or is there some way that we in 
Congress can give FEMA the authority to step into a state when 
FEMA feels it is necessary even before a governor ask for that 
help?
    Ms. Napolitano. Well, in reality, that is what happens 
because one of the things we have been very successful at in 
terms of disaster management is when we see a disaster coming--
a hurricane, flooding, a weather system like an Irene, for 
example--is to pre-deploy resources and pre-declare disaster 
before the disaster even hits. It allows us to put, as I like 
to say, speed and mass on target.
    Mr. Marino. Right. Thank you.
    I yield back.
    Mr. Gallegly. The time of the gentleman is expired.
    At this point, I am going to yield myself 5 minutes in 
the--in the sequence that the Chairman had listed the speakers.
    I, first of all, apologize for coming in a little late. I 
have been in a classified briefing for an hour and a half this 
morning on some national security things or I would have been 
here. And I certainly want to associate myself with a couple of 
things that my good friend from Pennsylvania, Mr. Marino, 
alluded to.
    You have a very tough job. We all recognize that. And there 
are some very tough issues we are all dealing with, and I don't 
want to make your job more complicated and I think when I 
finish here, you will accept the fact that I have not done 
that.
    When I walked in, Ms. Chu from California, my good friend 
and colleague, was talking about the number of precious dollars 
we have to do the jobs that we have to deal with. As Chairman 
of the Immigration Subcommittee of this Committee, I have been 
working on immigration issues for 25 years and it seems to me 
that there are some issues that still boggle my mind how we are 
dealing with them.
    One, of course, is the issue, and there is not a simple 
answer to it and it can be spun any number of ways, but at a 
time when we have the millions and millions of people 
unemployed, that the President of the United States would put 
out an order to put on hold approximately 300,000 deportation--
people who are in the actual deportation process--and there 
have been millions and millions of dollars prosecuting these.
    Ms. Napolitano. Representative, that is not exactly what 
happened, but go ahead.
    Mr. Gallegly. Okay. Well, for the sake of--of--of brevity 
here I will--I will let you have some time and set the record 
straight.
    But however many they are we will set aside for a second. 
Are you aware of the earned income tax credit program or 
refunds?
    Ms. Napolitano. Yes.
    Mr. Gallegly. These are where individuals earn some money 
but not quite enough money to pay any income tax----
    Ms. Napolitano. It's a refundable tax credit.
    Mr. Gallegly [continuing]. And then at the end of the year 
they are eligible for a tax refund even though they paid no 
taxes.
    Are you also aware that last year there were 2.3 million 
people illegally working in this country? This is per the Obama 
Treasury Department's records--2.3 million people illegally 
working in this country that received over $4 billion in tax 
refunds, and this is a 4 percent increase over what illegal 
immigrants were receiving in tax refunds after paying no taxes 
over the past 5 years.
    Now, this is a matter of the record. I am not going to ask 
you to respond to that. However, you may or may not know the 
answer to this and if you don't know the answer to this I would 
like to see if you could get me the answer.
    Of the 300,000 or whatever this magic number is of people 
that are in the process of being deported, how many of those 
have received earned--these tax refunds? And also, of those 
that have received tax refunds, how many have any form of a 
criminal record?
    Ms. Napolitano. Well, first of all, I don't know the answer 
right off the top of my head, as you might anticipate, but the 
case-by-case review of the--of the cases ongoing is designed to 
make sure that we are moving priority cases through the 
detained docket to removal from the country. Those that have a 
criminal record are those that fit within the priority 
category.
    So what we are trying to do is clear the docket. Remember, 
the docket is setting cases in 2014 and 2015. So this is a 
docket that is really backlogged.
    Mr. Gallegly. Oh, I know--I know. Some of these cases that 
have been pending for five, 6 years----
    Ms. Napolitano. Indeed.
    Mr. Gallegly [continuing]. With just one--one----
    Ms. Napolitano. Continuance after another----
    Mr. Gallegly. Just one extension or continuance after 
another----
    Ms. Napolitano. That is----
    Mr. Gallegly [continuing]. Some arbitrarily and 
capriciously, in my opinion----
    Ms. Napolitano. Right.
    Mr. Gallegly. With the hopes that one day amnesty will 
solve all these problems and these cases will disappear.
    Ms. Napolitano. Well, I think what we are trying to do is 
reprioritize the cases that are in the system so that the most 
serious ones go first.
    Mr. Gallegly. Well, this gets back to the issue of--of what 
constitutes criminal and this--this--this prioritization is 
important. Is three drunk-driving arrests considered a 
criminal? Is it robbery? Is it assault? Is it burglary?
    How--how does that--you know, and maybe you could just give 
us some kind of a written assessment of how these priorities 
work. Because sometime when someone has been arrested at three 
drunk-driving arrests and then on the fourth time they kill 
somebody, we have case after case after case of these where 
they are still living and they have been in the deportation 
process.
    Ms. Napolitano. I--I--I agree with you. I think those--
those kinds of cases are the ones we want to put into detention 
and removal. I will be happy to describe for you level one, two 
and three and how that works.
    Mr. Gallegly. That--you want to just send that to the 
Committee in writing for me or you want to try to do it now?
    Ms. Napolitano. We can--we can provide--I think we have 
provided a briefing to staff already but we will get you 
something.
    Mr. Gallegly. And if you would, for my benefit and the 
Committee's benefit, send me an assessment--it may take a 
little time to put these together--of--of the number of people 
that have received income tax--this $4-plus billion in the last 
year--how many of those individuals have actually had a 
criminal record. To me, a criminal record is being put in jail 
for drunk driving.
    Ms. Napolitano. Okay.
    Mr. Gallegly. Okay.
    Ms. Napolitano. And if you could supply my staff with the 
Treasury report to which you are referring so that we can take 
a look at it, that would be helpful.
    Mr. Gallegly. We will be happy to get that to the 
appropriate person on your staff.
    I do appreciate the job you are doing. Don't always agree 
with everything you are doing but I do understand it is 
complicated and I hope that we can work together for the sake 
of the country.
    Ms. Napolitano. Indeed.
    Mr. Gallegly. Mr. Jordan?
    Mr. Forbes. Well, I think you meant me.
    But Madam Secretary, good news is I am last up for the----
    Mr. Gallegly. Randy Forbes, I am sorry. I didn't mean to 
slander you.
    Mr. Forbes. That is--that is okay. That is okay. 
[Laughter.]
    I wouldn't mind being Jim Jordan.
    Madam Secretary, I want to just continue, if you don't 
mind, with the discussion of what some people call 
administrative amnesty and I realize you call prosecutorial 
discretion and, as a courtesy, I will call it prosecutorial 
discretion.
    We talked about the fact you have limited resources but the 
reality is every prosecutor has limited resources. So that 
doesn't justify bad policies if they happen to be bad policies.
    I want to come back on some of the items in the memo and 
kind of elaborate on what Mr. Marino was talking about a little 
bit.
    Do you know of any situation where the violation of law a 
prosecutor would be correct in discriminating by prosecuting 
more people who were uneducated or had less education than 
those who had more education?
    Ms. Napolitano. Educational attainment in and of itself 
is--is--in an isolated--as an isolated factor is--is not a 
prosecutorial issue in that sense.
    Mr. Forbes. You talked about we should be prosecuting more 
employers perhaps, I think. Is that a fair representation?
    Ms. Napolitano. That is--and auditing more and debarring 
more and finding more. That is correct.
    Mr. Forbes. Would there be a situation where you think a 
prosecutor would ever be justified in discriminating against 
employers who had less education by prosecuting them more than 
by those who had more education?
    Ms. Napolitano. I think the things we look at are employers 
who are intentionally and repeatedly violating immigration law.
    Mr. Forbes. That is not my question. Madam Secretary, my 
question----
    Ms. Napolitano. It is an impossible question to answer.
    Mr. Forbes. Well, the reason I say it is one of the----
    Ms. Napolitano. Yeah. You obviously have a situation in 
mind.
    Mr. Forbes. I do.
    Ms. Napolitano. Why don't you just give me the situation?
    Mr. Forbes. Well, one of the criteria you have in your 
prosecutorial discretion is to look at persons who are pursuing 
education in the United States.
    So, effectively, by those people who couldn't afford to 
pursue that education, who might be undereducated or less 
educated, you are having a discrimination against them. The 
second----
    Ms. Napolitano. Well, I would--I would disagree and that is 
why I say it is important----
    Mr. Forbes. Well, I am just looking----
    Ms. Napolitano [continuing]. It is important to look at 
factors all together in context.
    Mr. Forbes. I am looking at the wording, Madam Secretary.
    Ms. Napolitano. That is what a case-by-case review means.
    Mr. Forbes. The other thing I would like to look at is 
this. You have got one of your criteria persons whose spouse 
are pregnant. Would there ever be another situation where 
someone who had violated the law you would think a prosecutor 
could prosecute more individuals who were unmarried or perhaps 
in same-sex marriages and therefore didn't have a spouse that 
was pregnant?
    Is there ever a situation where that would be justified?
    Ms. Napolitano. I think the prosecutorial discretion memo 
speaks for itself. It lists the categories. There are things 
that can be taken into context by trained agents, by trained 
attorneys, looking at all of the--all of the facts.
    Mr. Forbes. Madam Secretary, I am simply asking you is 
there any other law to which you would allow a prosecutor to 
say, if you have a pregnant spouse we are going to be less 
likely to prosecute you than if you don't have a pregnant 
spouse?
    Ms. Napolitano. You know, I think in being a former U.S. 
Attorney and attorney general and very familiar with county 
attorneys and district attorneys there are always situations 
where humane situations are taken into account.
    Mr. Forbes. Madam Secretary, are you telling me that if you 
have an employer that you want to go after that you think a 
prosecutor should be able to prosecute those individuals who 
are unmarried or perhaps do not have spouses that are pregnant 
more than those who have a pregnant spouse?
    Ms. Napolitano. You know, Representative, I just can't 
answer the question as you phrased it.
    Mr. Forbes. Madam Secretary, in all due respect to you, 
these are your policies that you have written or approved from 
your department, and what you have said in here is a prosecutor 
can discriminate in favor of people who have more education 
when you are talking about whether you are going to prosecute 
them for being in here illegally.
    But there is no crime anywhere where you would justify 
prosecutors saying, we are going to prosecute people with less 
education more than we do with more education. So it is a bad 
policy.
    There is no policy--there is no situation where you would 
look at an employer and say, well, if you have got a pregnant 
spouse we are not going to prosecute you for violating the 
immigration laws less than we prosecute somebody who might not 
have a pregnant spouse.
    And then when you look at the situation on somebody who has 
a spouse that has an illness, there is no situation that you 
can suggest to me where any agency in the country has said that 
you ought to be able to have prosecutorial discretion on 
somebody that has violated the law in case they have a spouse 
that might have an illness.
    And what I am going to ask you is give me the examples, if 
you can, of other such situations where prosecutorial 
discretion is there.
    Ms. Napolitano. Prosecutorial discretion is always there. 
There are always factors that are taken into account. And if I 
may finish, I think the way you have posited the question is 
determined to reach a particular result, and I just cannot 
answer it the way you have posited it.
    Mr. Forbes. Madam Secretary, in all due respect, you just 
don't want to answer the question because they are the policies 
you wrote. So, what I am going to ask you is this, the same way 
the Chairman did.
    Will you give me in writing a single situation where any 
agency in this country has given to their prosecutors a 
situation where they suggest that they use prosecutorial 
discretion and they use one of these criteria--either, one, you 
should prosecute less if somebody has an education, or that you 
should prosecute them less if their spouse--they have a spouse 
that is pregnant, or you should prosecute them less if they 
have a spouse who is ill?
    You can't say that here, I understand, because you don't 
know it, and the reason you don't know it is because it doesn't 
exist. But if you would go back and tell me, in writing, if it 
exists anywhere in the country. And Madam Secretary, it 
doesn't. And if it doesn't, then you ought to look at your 
policies and say maybe your policies aren't appropriate.
    Mr. Chairman, with that, I yield back.
    Mr. Gallegly. The time of the gentleman has expired.
    We have no further requests. It has been a long morning. 
You have been under the gun for almost three and a half hours 
now. I thank you for your testimony and I would like to thank 
all the Members that participated. I will allow, without 
objection, all Members to have 5 days to submit additional 
written questions for the witness or additional material for 
the record.
    And with that, the full Committee stands adjourned.
    Ms. Napolitano. Thank you, Mr. Chairman.
    [Whereupon, at 1:16 p.m., the Committee was adjourned.]






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