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






   DOES ADMINISTRATION AMNESTY HARM OUR EFFORTS TO GAIN AND MAINTAIN 
                   OPERATIONAL CONTROL OF THE BORDER?

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON BORDER AND
                           MARITIME SECURITY

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 4, 2011

                               __________

                           Serial No. 112-47

                               __________

       Printed for the use of the Committee on Homeland Security
                                     




      Available via the World Wide Web: http://www.gpo.gov/fdsys/

                                _____

                  U.S. GOVERNMENT PRINTING OFFICE
73-358 PDF                WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop SSOP, Washington, DC 
20402-0001





                     COMMITTEE ON HOMELAND SECURITY

                   Peter T. King, New York, Chairman
Lamar Smith, Texas                   Bennie G. Thompson, Mississippi
Daniel E. Lungren, California        Loretta Sanchez, California
Mike Rogers, Alabama                 Sheila Jackson Lee, Texas
Michael T. McCaul, Texas             Henry Cuellar, Texas
Gus M. Bilirakis, Florida            Yvette D. Clarke, New York
Paul C. Broun, Georgia               Laura Richardson, California
Candice S. Miller, Michigan          Danny K. Davis, Illinois
Tim Walberg, Michigan                Brian Higgins, New York
Chip Cravaack, Minnesota             Jackie Speier, California
Joe Walsh, Illinois                  Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania         Hansen Clarke, Michigan
Ben Quayle, Arizona                  William R. Keating, Massachusetts
Scott Rigell, Virginia               Kathleen C. Hochul, New York
Billy Long, Missouri                 Janice Hahn, California
Jeff Duncan, South Carolina
Tom Marino, Pennsylvania
Blake Farenthold, Texas
Robert L. Turner, New York
            Michael J. Russell, Staff Director/Chief Counsel
               Kerry Ann Watkins, Senior Policy Director
                    Michael S. Twinchek, Chief Clerk
                I. Lanier Avant, Minority Staff Director
                                 ------                                

              SUBCOMMITTEE ON BORDER AND MARITIME SECURITY

                Candice S. Miller, Michigan, Chairwoman
Mike Rogers, Alabama                 Henry Cuellar, Texas
Michael T. McCaul, Texas             Loretta Sanchez, California
Paul C. Broun, Georgia               Sheila Jackson Lee, Texas
Ben Quayle, Arizona, Vice Chair      Brian Higgins, New York
Scott Rigell, Virginia               Hansen Clarke, Michigan
Jeff Duncan, South Carolina          Bennie G. Thompson, Mississippi 
Peter T. King, New York (Ex              (Ex Officio)
    Officio)

                      Paul Anstine, Staff Director
                   Diana Bergwin, Subcommittee Clerk

            Alison Northrop, Minority Subcommittee Director













                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Candice S. Miller, a Representative in Congress 
  From the State of Michigan, and Chairwoman, Subcommittee on 
  Border and Maritime Security:
  Oral Statement.................................................     1
  Prepared Statement.............................................     3
The Honorable Henry Cuellar, a Representative in Congress From 
  the State of Texas, and Ranking Member, Subcommittee on Border 
  and Maritime Security..........................................     5
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Ranking Member, Committee on 
  Homeland Security..............................................    11

                               Witnesses

Chief Michael J. Fisher, Border Patrol, Customs and Border 
  Protection, Department of Homeland Security:
  Oral Statement.................................................    14
  Prepared Statement.............................................    16
Kumar C. Kibble, Deputy Director, Immigration and Customs 
  Enforcement, Department of Homeland Security:
  Oral Statement.................................................    20
  Prepared Statement.............................................    22
Ruth Ellen Wasem, Ph.D., Specialist in Immigration Policy, 
  Congressional Research Service:
  Oral Statement.................................................    27
  Prepared Statement.............................................    28

                             For the Record

The Honorable Henry Cuellar, a Representative in Congress From 
  the State of Texas, and Ranking Member, Subcommittee on Border 
  and Maritime Security:
  Letter.........................................................     7
  Slide..........................................................    10
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Ranking Member, Committee on 
  Homeland Security:
  Bill Excerpt...................................................    12
  Slide..........................................................    41
The Honorable Sheila Jackson Lee, a Representative in Congress 
  From the State of Texas
  Article........................................................    47

 
   DOES ADMINISTRATION AMNESTY HARM OUR EFFORTS TO GAIN AND MAINTAIN 
                   OPERATIONAL CONTROL OF THE BORDER?

                              ----------                              


                        Tuesday, October 4, 2011

             U.S. House of Representatives,
                    Committee on Homeland Security,
              Subcommittee on Border and Maritime Security,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:02 a.m., in 
Room 311, Cannon House Office Building, Hon. Candice S. Miller 
[Chairwoman of the subcommittee] presiding.
    Present: Representatives Miller, McCaul, Quayle, Rigell, 
Duncan, Cuellar, Jackson Lee, Clarke, and Thompson.
    Mrs. Miller. I am going to call the committee to order. 
Before I start my, I guess, sort-of more formal opening 
statement, I think we need to congratulate the men and women of 
our terrorist community for their outstanding work on 
capturing--or, excuse me, killing the terrorist, Anwar al-
Awlaki, last week. It was certainly wonderful, wonderful news 
for everyone who is a fighter for freedom; it was a big blow to 
the enemies of freedom, al-Qaeda.
    Being from Detroit, we were aware of his involvement with 
the Christmas day bomber, and the Times Square bomber, and so 
many others. Many people have said that he was a greater threat 
to our country, actually, than Osama bin Laden. So I think we, 
since we all sit on the Homeland Security Committee, we should 
recognize the death of this very vile terrorist removes a huge, 
enormous threat from our Nation.
    Securing our Nation's border is certainly one of the 
principal responsibilities of the Federal Government, and it is 
foremost on this subcommittee's agenda. Over the last 9 months 
this year we have examined the concept of operational control 
at a number of our committee meetings, and really what it means 
in terms of how secure or how open our border actually is.
    As the Border Patrol points out correctly, we have a 
layered approach to border security that begins at the border, 
but it doesn't end at the border. Interior checkpoints, bus, 
and other transportation checks are also very valuable tools to 
reduce the number of illegal aliens that enter the country.
    The last line of defense, as we work to control the 
integrity of the border, is interior enforcement, and this 
hearing is intended to examine the impact of the 
administration's recent decision to more leniently apply 
prosecutorial discretion and how it will affect the Border 
Patrol's ability to gain and maintain operational control of 
the border. I am very concerned--I know others are, as well--
that the message that this administration is sending will lead 
to strains on the Border Patrol's resources as potential 
illegal immigrants may surge across the border, making it much 
more difficult for the Border Patrol.
    What is troubling is that the administration has offered 
literally hundreds of thousands of illegal aliens 
administrative amnesty through a series of memos and letters. 
The Department of Homeland Security and the Department of 
Justice have decided to review every single case in the removal 
pipeline to weed out non-criminals and criminal aliens who 
haven't committed the most serious crimes, and then 
indefinitely close and ignore those cases that don't meet that 
threshold.
    I think when you have the potential to administratively 
close hundreds of thousands of removal cases it sends a 
message, and that message is clear: That if you make it past 
the border you are scot-free and that you can stay here despite 
breaking our immigration laws unless you commit a serious 
crime, and even then there is no guarantee that these illegal 
aliens will be deported and sent back to their home. So this 
action by the administration is clearly administrative amnesty.
    Certainly, I am a strong supporter of Secure Communities, a 
program that removes thousands of dangerous criminals from our 
streets every year. I certainly congratulate the men and women 
of ICE for the excellent work that they do to remove criminals, 
visa violators, and certainly recent border-crossers.
    I would remind my colleagues that every single person who 
crosses the border illegally has, in fact, committed a crime, 
and we cannot send the message that unless you break the social 
contract and commit serious crimes we will not bother with the 
effort to deport you. We are either a Nation of laws or we are 
not, and telling illegal aliens that we are really not looking 
for them unless they commit additional serious crimes is a 
mistake, I believe, and will only serve to encourage more 
illegal immigration, and again, as a result, will make the job 
of Border Patrol agents charged with defending the Nation that 
much harder.
    Our country has made a series of mistakes, I think, when it 
comes to immigration reform, without serious border security 
and serious interior enforcement. In every instance where we 
have either offered amnesty or even had a serious policy 
discussion about it people have responded and a surge of 
illegal aliens cross the border to take advantage. We saw that 
in 1986; we saw it again in 2006; we saw it in 2007.
    Instead of offering incentives for people to break the law 
we should be making it more difficult to cross the border and 
even harder to get a job once they are here illegally. Doing 
anything else, I think, is less a slap in the face to honest 
immigrants who do the right thing, who wait in line, who fill 
out the paperwork, pay the associated fees, learn English, and 
become naturalized according to our laws.
    Administration officials like to point to the number of 
apprehensions as an indicator of the success of their 
enforcement efforts, but I think this comparison is a bit 
disingenuous, because really the poor state of the American 
economy is a driving force behind the current low apprehension 
numbers and the lack of people trying to cross the border. 
Telling the American people that the border is more secure than 
ever--I don't believe that. I think the reality is--in fact, 
according to the Mexican Migration Project, nearly 97 percent 
of all the illegal immigrants who try to cross the border 
eventually succeed, which is a startling number.
    Estimates do vary, but we do have somewhere in the 
neighborhood of 11 million to 12 million illegal aliens living 
in the United States and we remove only 400,000 each year. So 
the already low prospect of being deported is now being further 
reduced by this administration's misguided attempts to 
circumvent the legislative process.
    If the President wants to change the law he needs to submit 
a proposal to Congress. Article 2, Section 3 of the 
Constitution states that the President shall take care that the 
laws be faithfully executed. Not enforcing key aspects of the 
law is not consistent with that section of the Constitution.
    We need to have a strategy to secure the border and for 
administration officials to be honest and candid with the 
Congress about the resources that it needs. But unfortunately, 
we get insufficient answers and an administration that 
circumvents the legislative process to grant administrative 
amnesty to thousands of illegal aliens.
    I think it is past time that we come up with a plan to 
secure our border instead of sending signals that make gaining 
and maintaining operational control of our borders even more 
difficult. I certainly look forward to hearing the testimony of 
all of our witnesses and appreciate them all coming today as we 
talk about operational control of our borders.
    [The statement of Mrs. Miller follows:]
           Prepared Statement of Chairwoman Candice S. Miller
                            October 4, 2011
    Securing the Nation's border is one of the principal 
responsibilities of the Federal Government, and is foremost on this 
subcommittee's agenda. Over the past 9 months, we have examined the 
concept of Operational Control and what that means in terms of how 
secure or open the border really is.
    As the Border Patrol rightly points out, we have a layered approach 
to border security that begins at the border, but does not end there. 
Interior checkpoints, bus and other transportation checks are also 
valuable tools to reduce the number of illegal aliens that enter the 
country. The last line of defense as we work to control the integrity 
of the border is interior enforcement.
    This hearing is intended to examine the impact of the 
administration's recent decision to more leniently apply prosecutorial 
discretion and how it will affect the Border Patrol's ability to gain 
and maintain operational control of the border. I am concerned that the 
message this administration is sending may lead to strains on the 
Border Patrol's resources as potential immigrants may surge across the 
border, making it more difficult for the Border Patrol to identify 
smugglers, criminals, and potential terrorists.
    What is troubling is that this administration, under the guise of 
lacking resources, has offered hundreds of thousands of illegal aliens 
administrative amnesty through a series of memos and letters. Now, I'm 
sure that you'll hear them take issue with that term. But the 
Department of Homeland Security and Department of Justice have decided 
to review every single case in the removal pipeline to weed out non-
criminals, and criminal aliens who haven't committed the most serious 
crimes and then indefinitely close and ignore those cases that don't 
meet their threshold, I am honestly not sure what else to call it.
    And what about those people whose cases are closed? They will not 
be removed, and will probably receive work authorization from the 
Citizenship and Immigration Services. So, if they aren't being deported 
and they have the potential to work legally in the United States that 
sounds an awful like amnesty to me!
    When you have the potential to administratively close hundreds of 
thousands of removal cases it sends a message and that message is 
crystal clear: If you make it past the border, you are scot-free and 
can stay here, despite breaking our immigration laws, unless you commit 
a serious crime. Even then there is no guarantee that those illegal 
aliens will be deported and sent back to their home.
    I continue to be a strong supporter of Secure Communities, a 
program that removes thousands of dangerous criminal from our streets 
every year. I congratulate the men and women of ICE for the excellent 
work that they do to remove criminals, visa violators, and recent 
border crossers. Contrary to some critics, they do a good job at just 
that. But this is just half of the story.
    I would like to remind my colleagues that every single person who 
crosses the border illegally has committed a crime, and we cannot 
ignore that fact or sweep it under the rug. We cannot send the message 
that unless you break the social contract and commit serious crimes, we 
will not bother with the effort to deport you.
    Either we are a Nation of laws or we are not--it is just that 
simple. Telling illegal aliens that we are not really looking for them 
unless they commit additional serious crimes is a tragic mistake and 
will only serve to encourage more illegal immigration, and as a result, 
will make the job of Border Patrol agents charged with defending the 
Nation that much harder.
    Taking a look at the series of mistakes we have made when it comes 
to immigration reform without serious border security and serious 
interior enforcement makes my head spin. In every instance where we 
have either offered amnesty, or even had a serious policy discussion 
about it, people have responded--and a surge of illegal aliens cross 
the border to take advantage.
    We saw that in 1986 and we saw it again in 2006 and 2007. Instead 
of offering incentives for people to break the law we should be making 
it more difficult to cross the border and even harder to get a job once 
they are here illegally. Doing anything less is a slap in the face to 
honest immigrants who do the right thing, wait in line, fill out paper 
work, pay the associated fees, learn English, and become naturalized 
according to the law.
    Administration officials like to point to the number of 
apprehensions as an indicator of the success of their enforcement 
efforts, but this comparison obscures the truth--the poor state of the 
American economy is the driving force behind the current low 
apprehension numbers and the lack of people trying to cross the border.
    Telling the American people that the border is more secure than 
ever is, at best, a disservice; the reality is that, according to the 
Mexican Migration Project, nearly 97% of illegal immigrants who try to 
cross the border eventually succeed.
    I'm not sure about you, but that isn't what I call a country that 
has control of its borders.
    Estimates vary, but we have somewhere in the neighborhood of 11-12 
million illegal aliens living in the United States, and we remove only 
400,000 each year, so the already low prospect of being deported is now 
being further reduced by this administration's misguided attempts to 
circumvent the legislative process. If the President wants to change 
the law, then he needs to submit a proposal to Congress.
    Last time I checked, Article II Section 3 of the Constitution 
states that the President ``shall take care that the laws be faithfully 
executed.'' Not enforcing key aspects of the law is not consistent with 
that section of the Constitution.
    What I have continually called for is a strategy to secure the 
border and for administration officials to be honest and candid with 
Congress about their resource needs, but instead we get more of the 
same--insufficient answers and an administration that circumvents the 
legislative process to grant administrative amnesty to thousands of 
illegal aliens.
    It is well past time that we come up with a plan to secure the 
border instead of sending signals that make gaining and maintaining 
operational control even more difficult. I look forward to hearing from 
our witnesses how lax enforcement may hinder efforts to gain 
operational control of the border.



    Mrs. Miller. At this time the Chairwoman would recognize 
the Ranking Member, Mr. Cuellar, for his opening statement.
    Mr. Cuellar. Thank you so much, Madam Chairwoman, for 
holding this meeting.
    First of all, I have a housekeeping matter. I believe the 
House rules call that witnesses are supposed to turn in their 
testimonies 48 hours before. I understand that our friend, 
Chief Fisher, turned his testimony at 8:43 p.m. Is that 
correct? Who would know that? Is that correct? Okay.
    Again, I would ask the witnesses to turn their testimony in 
on time. I believe last time a Chief was here, officially was 
with us, he said he had about 250 Border Patrol agents that 
could be on the border but he had them at headquarters; I don't 
know if they can help him put this little testimony together, 
but I would ask that we adhere by the rules on testimony.
    Madam Chairwoman, I would like to start off with the 
hearing with some basic figures related to illegal immigration 
in the United States. There are currently an estimated 11.2 
million undocumented aliens in this country.
    At present, ICE has the resources to remove approximately 
400 undocumented aliens annually. You do not have to be a 
mathematician to see that there is an enormous discrepancy 
between the scale of illegal immigration issue and the 
resources available to address this.
    Faced with this reality, ICE has made a reasonable decision 
to prioritize its resources to remove undocumented aliens who 
pose a threat to National security, public safety, or our 
immigration system first and foremost. When I come from this 
kind of smart use of limited resources is called good 
Government.
    After all, wouldn't you rather remove someone with 
potential ties to terrorism before an elderly person? Why 
wouldn't you remove a gang member before you remove a pregnant 
woman? Why wouldn't you remove someone with a history of DUI 
before a child?
    This kind of prioritization should be common sense. If the 
use of prosecutory discretion is unique neither to the current 
administration nor to ICE. Past administrations have made 
similar choices when faced with circumstances.
    Members, I would ask you to take a look at--there is the 
list of memos that have been turned in since 1979--I believe 
July 15, 1976 to the present time--both under Democrat and 
Republican administrations that have used prosecutorial 
discretions--both Democrats and Republicans, even under the 
last administration, my friend, George Bush. Law enforcement 
officials have used this--and one more thing, before I go--move 
from the--from this memos--there is also a letter dated 
November 8, 1999, signed by Democrats and Republicans--in fact, 
some Members from this committee--that are asking for 
prosecutorial discretion. Let me give you a list of some 
Members that you might recognize: Henry Hyde, Lamar Smith, Bill 
Burton--I mean, Bill Barriz--you have Brian Bilbray, Nathan 
Deal, David Dreier, James McGovern, James Sensenbrenner, and 
Sam Johnson--I don't see Michael McCaul; you weren't here in 
1999--Lincoln Diaz-Balart, and I go on.
    [The information follows:]
    
    
    
    Mr. Cuellar. These are Members, both Democrats and 
Republicans, and some folks that are taking a very strong 
position against prosecutorial Members. This is a letter sent 
off to Janet Reno and to Doris Meissner, the commissioner of 
INS at that time, dated November 8, 1999, that are asking for 
prosecutorial discretion. Again, I would ask you--I would be 
happy to share the copies of the memos both under the Bush 
administration, Reagan administration, all the way down to the 
Jimmy Carter administration.
    As I mentioned, law enforcement agencies around the 
country, both Federal, State, and local, utilize the 
enforcement tool--this enforcement tool to ensure that they get 
the worst of the worst off our streets. There is a certain 
irony to the fact that ICE's commitment to removing 
undocumented aliens has been called into question when this 
administration has removed more undocumented aliens annually 
than any of its predecessors.
    Members, I would ask you to take a look at the PowerPoint 
up there, and you will see, from 2001 we were removing criminal 
aliens that were removed from the United States at about 
73,000--a little bit over 73,000. In 2008, the last year of the 
Bush administration, we removed 105,266.
    [The information follows:]
    

    
    Mr. Cuellar. Then you move into 2009, 2010, 2011, under the 
Obama administration. In 2009, 131,840--you can see a jump from 
the past administration--that were actually removed. In 2010, 
168-plus that were actually removed, a jump from the prior 
administration. In 2011 you have 202,169 that were actually 
removed.
    In fact, if we keep going, in 2001, in 3 years we would 
remove more criminal aliens than the last 8 years under the 
Bush administration. This includes, again--and this includes, 
also, numbers when you look at--including the undocumented 
aliens--not only criminal aliens, but undocumented aliens, 
also.
    Recently, as part of ICE Operation Cross Check, DHS 
announced the identification and arrest of over 2,900 convicted 
criminal aliens; 1,600 of them were--that were arrested were 
murderers, kidnappers, drug traffickers, child predators, 
rapists, gang members, and convicted sex offenders. This is a 
fundamental example of smart, focused, effective immigration 
enforcement that we have.
    I would ask that during this substantial budget cuts that 
we look and allow ICE to continue to exercise their law 
enforcement discretion to place priority on identifying, 
arresting, and removing immigration fugitives. I certainly want 
to commend, Madam Chairwoman, the work of our ICE folks, and 
certainly Director Morton, for the work that he has done.
    Finally, the last thing I would just make to conclude is, 
as a Member, again, from the border I would have to denote 
that--note that I disagree with the title of today's hearing. 
The hearing title implies that there is amnesty for border 
crossing when, in fact, we continue to have a zero tolerance 
policy. In fact, in the Laredo area of the Border Patrol and 
the Del Rio area, it used to be that people that would cross 
would be sent back, but under a 1954 law we are now saying that 
they would have to spend some time in a detention--in jail--for 
doing that. That is something that we just started doing in 
Texas.
    Finally, the border crossing and immigration violators are 
specifically prioritized for removal under the ICE policy. 
Again, we would have to be careful from using amnesty, because 
if not, I am afraid that we could cause a possible magnet 
effect of this member--of this border security, and then this 
misinformation would say, ``You know what, in the United States 
there is some amnesty involved,'' so we would have to be very 
careful.
    I do not believe in amnesty. I don't believe that what 
Ronald Reagan and the Democrats did in 1986 created amnesty. I 
don't agree with that.
    I certainly want to thank Madam Chairwoman for having this 
hearing so we can talk about this important issue, and 
certainly want to thank all the witnesses for being here today. 
I yield back the balance of my time.
    Mrs. Miller. The Chairwoman now recognizes the Ranking 
Member of the Full Committee, the gentleman from Mississippi, 
Mr. Thompson, for his statement.
    Mr. Thompson. Thank you very much, Madam Chairwoman. I 
appreciate the hearing. I appreciate our witnesses who are also 
here today.
    But let me start by addressing the title of today's 
hearing, ``Does Administrative Amnesty Harm Our Efforts to Gain 
and Maintain Operational Control of the Border?'' I find it 
curious that a practical, risk-based approach to removal of 
undocumented aliens would be characterized by my friends across 
the aisle as administrative amnesty. This is not a legal term, 
but a political one.
    Typically, the smart and efficient use of Government 
resources garner bipartisan praise and support in this town. 
What is ICE doing under the Obama administration that is 
different than what it or its predecessor, INS, did under 
previous administrations?
    ICE is prioritizing its limited resources to ensure that 
the agency removes undocumented aliens who pose a danger to 
National security or a risk to public safety, along with recent 
illegal entrants. Currently, ICE only has the resources 
necessary to remove approximately 400,000 undocumented aliens.
    Madam Chairwoman, I would like to offer for the record a 
copy of the Homeland Security appropriations measure where 
every Member of this subcommittee voted for this very same 
program to the tune of $1.6 billion.
    Mrs. Miller. Without objection.
    [The information follows:]

H.R. 2017 EH

                U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT


                         Salaries and Expenses

            For necessary expenses for enforcement of 
        immigration and customs laws, detention and removals, 
        and investigations; and purchase and lease of up to 
        3,790 (2,350 for replacement only) police-type 
        vehicles; $5,522,474,000 (increased by $1,000,000) 
        (reduced by $1,000,000) (increased by $1,000,000) 
        (reduced by $5,000,000) (increased by $5,000,000), of 
        which not to exceed $7,500,000 shall be available until 
        expended for conducting special operations under 
        section 3131 of the Customs Enforcement Act of 1986 (19 
        U.S.C. 2081); of which not to exceed $15,000 shall be 
        for official reception and representation expenses; of 
        which not to exceed $2,000,000 shall be for awards of 
        compensation to informants, to be accounted for solely 
        under the certificate of the Secretary of Homeland 
        Security; of which not less than $305,000 shall be for 
        promotion of public awareness of the child pornography 
        tipline and activities to counter child exploitation; 
        of which not less than $5,400,000 (increased by 
        $1,000,000) shall be used to facilitate agreements 
        consistent with section 287(g) of the Immigration and 
        Nationality Act (8 U.S.C. 1357(g)); and of which not to 
        exceed $11,216,000 shall be available to fund or 
        reimburse other Federal agencies for the costs 
        associated with the care, maintenance, and repatriation 
        of smuggled aliens unlawfully present in the United 
        States: Provided, That none of the funds made available 
        under this heading shall be available to compensate any 
        employee for overtime in an annual amount in excess of 
        $35,000, except that the Secretary, or the designee of 
        the Secretary, may waive that amount as necessary for 
        National security purposes and in cases of immigration 
        emergencies: Provided further, That of the total amount 
        provided, $15,770,000 shall be for activities to 
        enforce laws against forced child labor, of which not 
        to exceed $6,000,000 shall remain available until 
        expended: Provided further, That of the total amount 
        available, not less than $1,600,000,000 shall be 
        available to identify aliens convicted of a crime who 
        may be deportable and aliens who may pose a serious 
        risk to public safety or National security who may be 
        deportable, and to remove them from the United States 
        once they are judged deportable, of which $194,064,000 
        shall remain available until September 30, 2013: 
        Provided further, That the Assistant Secretary of 
        Homeland Security for U.S. Immigration and Customs 
        Enforcement shall report to the Committees on 
        Appropriations of the Senate and the House of 
        Representatives, not later than 45 days after the end 
        of each quarter of the fiscal year, on progress in 
        implementing the preceding proviso and the funds 
        obligated during that quarter to make such progress: 
        Provided further, That the Secretary shall prioritize 
        the identification and removal of aliens convicted of a 
        crime by the severity of that crime: Provided further, 
        That the funding made available under this heading 
        shall maintain a level of not less than 34,000 
        detention beds through September 30, 2012: Provided 
        further, That of the total amount provided, not less 
        than $2,750,843,000 is for detention and removal 
        operations, including transportation of unaccompanied 
        minor aliens: Provided further, That of the total 
        amount provided, $10,300,000 shall remain available 
        until September 30, 2013, for the Visa Security 
        Program: Provided further, That none of the funds 
        provided under this heading may be used to continue a 
        delegation of law enforcement authority authorized 
        under section 287(g) of the Immigration and Nationality 
        Act (8 U.S.C. 1357(g)) if the Department of Homeland 
        Security Inspector General determines that the terms of 
        the agreement governing the delegation of authority 
        have been violated: Provided further, That none of the 
        funds provided under this heading may be used to 
        continue any contract for the provision of detention 
        services if the two most recent overall performance 
        evaluations received by the contracted facility are 
        less than ``adequate'' or the equivalent median score 
        in any subsequent performance evaluation system: Pro-[ 
        . . . ]

    Mr. Thompson. That constitutes, in its form, less than 4 
percent of the estimated illegal alien population in the United 
States. Unless and until Congress appropriates sufficient funds 
for ICE to apprehend and remove every undocumented alien in the 
country we should support the agency's efforts to focus its 
limited resources on removing those undocumented aliens who 
pose the greatest threat to our Nation.
    Indeed, on the topic of appropriations, as I have already 
said, the Republican homeland security appropriation bill, 
approved by the House this session, cuts rather than increases 
ICE's budget. All but one of the Republican colleagues on this 
subcommittee voted in favor of those cuts.
    As I said before, Madam Chairwoman, our Republican 
colleagues tend to talk tough when it comes to homeland 
security and immigration enforcement, but rarely do they put 
their money where their mouth is.
    Also, it is worth noting that under the current 
administration ICE has removed more criminal aliens and more 
aliens total than under the Bush administration or any other 
prior administration, Democrat or Republican. Only in 
Washington, DC, could those kinds of figures somehow be spun as 
amnesty.
    Ironically, the last real amnesty was championed by 
President Ronald Reagan, a hero to many of my Republican 
colleagues. Yet, today it appears that even the largest number 
of removals of undocumented immigrants in our Nation's history 
is not enough to satisfy some.
    With that, Madam Chairwoman, I would like to welcome our 
distinguished panel of witnesses. I look forward to hearing 
them today, and I am certain that they will provide the Members 
of this subcommittee valuable insight into the complex issue of 
immigration enforcement.
    I yield back the balance of my time.
    Mrs. Miller. I thank the gentleman for his comments. Other 
Members of the committee are reminded that opening statements 
might be submitted for the record.
    I am going to introduce all three of our guests, and then 
we will start with the chief.
    Chief Michael Fisher was named the chief of the U.S. Border 
Patrol in May of last year. He started his duty along the 
Southwest Border in 1987, in Douglas, Arizona.
    He successfully completed the selection process for the 
Border Patrol Tactical Unit, BORTAC, in 1990, and was later 
selected as field operations supervisor for the tactical unit. 
Following this, he served as the deputy chief patrol agent for 
the Detroit sector, and as an assistant chief patrol agent in 
Tucson, Arizona.
    We welcome you, Chief.
    Deputy Director Kibble is the deputy director for U.S. 
Immigration and Customs Enforcement, also known as ICE, of 
course. Prior to this assignment, Mr. Kibble served in several 
key leadership roles at ICE headquarters.
    His field assignments included service as a group 
supervisor and assistant special agent in charge of the 
metropolitan Los Angeles, California area. He also served as 
the special agent in charge of HSI's regional field office, in 
Denver, responsible for 17 offices in Colorado, Montana, Utah, 
and Wyoming.
    Dr. Ruth Ellen Wasem is a specialist in immigration policy 
with the Congressional Research Service, CRS, Library of 
Congress, and in that capacity she has written reports for 
Congress that provide research and policy analysis on a range 
of immigration subjects, including on asylum, family and 
employment-based permanent immigration, naturalization, non-
immigrant admissions, non-citizen eligibility for public 
assistant ends, as well as visa policy. Dr. Wasem completed her 
doctorate in history at the University of Michigan, and she 
also has an M.A. in history from the University of Michigan.
    So we welcome all of you. As you heard from our opening 
statements, there is rather a divergence of opinion on the 
committee here, of whether or not this is administrative 
amnesty and whether or not the policy recently adopted by the 
administration is the proper way to proceed.
    One of our, obviously, biggest functions of Congress is to 
provide Congressional oversight into your various agencies and 
departments as well as the policy that comes from the Executive 
Branch, and so that really is the purpose of the committee 
today.
    With that, we would have the floor to Chief Fisher, and 
again, welcome you back to the committee, and look forward to 
your testimony, sir.

 STATEMENT OF CHIEF MICHAEL J. FISHER, BORDER PATROL, CUSTOMS 
     AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY

    Chief Fisher. Thank you.
    Chairwoman Miller, Ranking Member Cuellar, and 
distinguished Members of the subcommittee, it is, indeed, my 
privilege and honor to appear before you again today. The 
border is a far different place today than it was when I began 
my career with the Border Patrol. I have personally witnessed 
the evolution of the border over the past 24 years, both in 
terms of additional resources applied against the threat as 
well as changes in the smugglers' tactics and their attempts to 
exploit our border.
    In fiscal year 2011, just ending, the Border Patrol made 
approximately 340,000 arrests, compared to 10 years ago, when 
the number of arrest totaled approximately 1.6 million. 
Although we have seen positive indicators of a more secure 
border our work continues, and that work will not end as long 
as those who seek to enter this country illegally.
    With the assistance of Congress, we have seen unprecedented 
influx of resources, and as a result we are currently at a 
pivot point in our strategic thinking. The Border Patrol 
remains committed to carrying out the laws enacted by Congress 
to the fullest extent possible. Our commitment to border 
security and that mission will not waiver.
    We know from experience that targeted enforcement works. 
Over the past few years we have developed effective strategies 
to disrupt and dismantle smuggling organizations and their 
distribution networks, leading to a safe border.
    Operations and initiatives, such as Operation Streamline, 
the Alien Transfer Exit Program, the Mexican Interior 
Repatriation Program, and the Operation Against Smugglers 
Initiative on Safety and Security, are focused on delivering 
targeted consequences to those offenders, thus breaking the 
smuggling cycle. Collectively, they represent the consequence 
delivery system that aids the overarching effort to improve the 
safety and security of our border, evidenced by reductions in 
both recidivism and reapprehension this past year.
    Understanding the greatest risk lies along our border is 
critical to our flexibility in addressing these risks. As CBP 
applies targeted enforcement to areas of evolving threat, 
mobile response capability is critical through timely and 
effective resolution.
    Now, CBP does not own the corner market in our National 
security efforts. We have learned that it requires a whole-of-
Government approach and law enforcement, each with our own 
duties, responsibilities, jurisdictional authorities, and at 
all levels of Government.
    We have gained a greater appreciation for the 
differentiation between mere collaboration and operational 
integration with our Federal, State, local, Tribal, and 
international partners. The key to a safe and secure border 
lies in the strength of joint planning and execution towards 
common objectives. Our path forward and our strategy will be 
risk-based.
    We will increasingly depend on information and intelligence 
to describe the intent and capabilities of the opposition, 
defining the threat while continuously accessing our border 
vulnerabilities. We will train and deploy the workforce to be 
more mobile, agile, and flexible against all threats.
    Thank you for the opportunity to testify today. I look 
forward to your questions.
    [The statement of Chief Fisher follows:]
                Prepared Statement of Michael J. Fisher
                            October 4, 2011
                              introduction
    Chairwoman Miller, Ranking Member Cuellar, and distinguished 
Members of the committee, it is a privilege and an honor to appear 
before you today to discuss U.S. Customs and Border Protection's (CBP) 
efforts to secure our Nation's borders. I am Michael J. Fisher, Chief 
of the United States Border Patrol (USBP).
    As America's front-line border agency, CBP's priority mission is to 
protect the American public, while facilitating lawful travel and 
trade. To do this, CBP has deployed a multi-layered, risk-based 
approach to enhance the security of our borders while facilitating the 
flow of lawful people and goods entering the United States. This 
layered approach to security reduces our reliance on any single point 
or program that could be compromised. It also extends our zone of 
security outward, ensuring that our physical border is not the first or 
last line of defense, but one of many.
                  overview of border security efforts
    Over the past 2 years, the Department of Homeland Security (DHS) 
has dedicated historic levels of personnel, technology, and resources 
to the Southwest border. We have more than doubled the size of the 
Border Patrol since 2004; tripled the number of Border Liaison Officers 
working with their Mexican counterparts; doubled personnel assigned to 
Border Enforcement Security Task Forces; and began screening southbound 
rail and vehicle traffic for the illegal weapons and cash that are 
helping fuel the cartel violence in Mexico. CBP also received approval 
from the U.S. Department of Transportation's Federal Aviation 
Administration to increase the miles of airspace available for Unmanned 
Aircraft System (UAS) operations, enabling CBP to deploy UASs from the 
eastern tip of California extending east across the border into Texas--
covering the entire Southwest border for the first time. Further, in 
January of this year, CBP's operational airspace along the Northern 
border expanded by nearly 900 miles, allowing CBP UAS operations from 
the Lake-of-the-Woods region in Minnesota, to the vicinity of Spokane, 
Washington.
    In addition, we have now constructed 650 miles of fencing out of 
nearly 652 miles where Border Patrol field commanders determined it was 
operationally required along the Southwest border, including 299 miles 
of vehicle barriers and 351 miles of pedestrian fence. We have also 
improved our technological capabilities, including the installation of 
remote video surveillance cameras in the Detroit and Buffalo Sectors, 
among other technologies.
    Further, the Southwest border security supplemental legislation 
(based on the administration's recommendations) was signed into law in 
August 2010. It provided DHS additional capabilities to secure the 
Southwest Border at and between our ports of entry and to reduce the 
illicit trafficking of people, drugs, currency, and weapons. 
Specifically, this bill provided funding for improved tactical 
communications systems along the Southwest border; two additional CBP 
unmanned aircraft systems; 1,000 new Border Patrol agents; 250 new CBP 
officers at ports of entry; and two new forward operating bases to 
improve coordination of border security activities.
    In addition, President Obama recently authorized the extension of 
the use of 1,200 National Guard troops through December 31, 2011 at the 
Southwest border to contribute additional capabilities and capacity to 
assist law enforcement agencies, and as a bridge to longer-term 
enhancements while the administration brings new assets online and 
pursues additional people, technology, and infrastructure dedicated to 
effective border management and security. These National Guard troops 
are providing Entry Identification Teams and criminal investigation 
analysts in support of these efforts. That support is allowing DHS to 
bridge the gap and hire the additional agents to support Southwest 
Border enforcement efforts, and the Departments of Defense and Homeland 
Security agreed to equally fund the National Guard deployment's cost. 
However, Congress did not approve DHS' reprogramming requests, and the 
Department of Defense has covered the full cost of this National Guard 
support.
                      whole-of-government approach
    Our overarching border security efforts require a whole-of-
Government approach that emphasizes the importance of joint planning 
and intelligence sharing. In recent months, we have taken additional 
steps to bring greater unity to our enforcement efforts, to expand 
coordination with other agencies, and to improve response times. In 
February, we announced the Arizona Joint Field Command--an 
organizational realignment that brings together Border Patrol, Air and 
Marine, and Field Operations under a unified command structure to 
integrate CBP's border security, commercial enforcement, and trade 
facilitation missions to more effectively meet the unique challenges 
faced in the Arizona area of operations.
    Another example of our collaborative efforts along the Southwest 
Border is the Alliance to Combat Transnational Threats (ACTT) in 
Arizona. The ACTT is enforcement collaboration, established in 
September 2009, which leverages the capabilities and resources of more 
than 60 Federal, State, local, and Tribal agencies in Arizona and the 
Government of Mexico to combat individuals and criminal organizations 
that pose a threat to communities on both sides of the border. Through 
ACTT, we work with our international, Federal, State, local, and Tribal 
law enforcement partners to increase collaboration; to enhance 
intelligence and information sharing; and to develop coordinated 
operational plans that strategically leverage the unique missions, 
capabilities, and jurisdictions of each participating agency. Since its 
inception, ACTT has resulted in the seizure of more than 2.2 million 
pounds of marijuana, 8,200 pounds of cocaine, and 2,700 pounds of 
methamphetamine; the seizure of more than $18 million in undeclared 
U.S. currency and 343 weapons; over 16,000 aliens denied entry to the 
United States at Arizona ports of entry due to criminal background or 
other disqualifying factors; and approximately 342,000 apprehensions 
between ports of entry.
    In partnership with DEA, and with support from the Department of 
Defense, DHS has achieved initial operational capability for the new 
Border Intelligence Fusion Section (BIFS) as part of the El Paso 
Intelligence Center. This new section will integrate and synthesize all 
available Southwest border intelligence from Federal, State, local, and 
Tribal partners to create a common intelligence picture to support 
border enforcement activities on the Southwest border. By disseminating 
real-time operational intelligence to our law enforcement partners in 
the region, BIFS will streamline and enhance coordinated Federal, 
State, local, and Tribal operations along the border. Additionally, we 
are continuing to work with Mexico to develop a cross-border 
communications network that will improve our ability to coordinate law 
enforcement and public safety issues.
    Along the Northern Border, CBP has established the Operational 
Integration Center (OIC), located at Selfridge Air National Guard Base 
in Harrison Township, Michigan. The OIC is a demonstration project 
aimed at enhancing border security and situational awareness for CBP 
and its mission partners along a critical area of the Northern Border 
by integrating personnel and technology. In terms of personnel, the OIC 
allows for a collaborative work area and communications capabilities 
for all components of CBP, the U.S. Coast Guard, other DHS entities, 
Federal law enforcement agencies, State and local law enforcement, and 
appropriate Canadian agencies. The OIC brings together information 
feeds, including radar and camera feeds, blue force tracking, database 
query from databases not previously available to CBP, remote sensor 
inputs, Remote Video Surveillance Systems, and Mobile Surveillance 
Systems feeds, and video from various POE, tunnel and local traffic 
cameras. This personnel and technology integration may serve as a model 
for technology deployments on the Northern Border.
    CBP is engaged with several National initiatives which all 
contribute to the border security mission. Our officers and agents 
provide support to the Integrated Border Enforcement Teams (IBET) which 
operates as intelligence-driven enforcement teams comprised of U.S. and 
Canadian federal, state/provincial and local law enforcement personnel. 
By incorporating integrated mobile response capability (air, land, 
marine), the IBETs provide participating law enforcement agencies with 
a force multiplier--maximizing border enforcement efforts. Our 
personnel additionally provide manpower to Border Enforcement Security 
Task Force (BEST) units, multi-agency teams which collaborate to 
identify, disrupt, and dismantle criminal organizations which pose 
significant threats to border security.
    In addition to these efforts, Operation Stonegarden (OPSG) grants 
are available and designed to support State, local, and Tribal law 
enforcement agencies that are involved in border security. While the 
grants themselves are managed by the Federal Emergency Management 
Agency, the participating agencies are required to submit operations 
orders to the Border Patrol. The Border Patrol is responsible for 
ensuring that all operations funded by this grant have a direct nexus 
to border security.
    CBP has also partnered with State and local law enforcement for 
certain outbound operations at POEs. Over the years, the personnel at 
the POEs along the Southwest Border have developed good working 
relationships with State and local law enforcement agencies. State and 
local law enforcement officers are a tremendous asset to CBP. They act 
as force multipliers, bringing their knowledge of the community, and 
their understanding of local criminal elements. Joint outbound 
operations target proceeds, firearms, ammunition, stolen vehicles, and 
fugitives.
    Additionally, a Processing, Exploitation, and Dissemination cell 
has been established at the Air and Marine facilities in Riverside, 
California, and Grand Forks, North Dakota, to provide essential 
information to law enforcement across the Nation--increasing 
understanding of evolving threats and providing the foundation for law 
enforcement entities to exercise targeted enforcement in the areas of 
greatest risk. This intelligence-driven approach prioritizes emerging 
threats, vulnerabilities and risks, greatly enhancing our border 
security efforts.
    Building on a legacy initiative, in 2005, CBP created a robust 
Information Sharing Environment known as ``BigPipe'', which links 
equipped CBP aviation assets, via the internet and information sharing 
protocols, to Federal, State, local, and Tribal law enforcement 
agencies in order to provide near-real time video and sensor data--
enhancing the situational awareness of officers across the law 
enforcement community. Additionally, BigPipe is used extensively by 
numerous Federal, State, local, and Tribal agencies during warrant 
presentations, controlled deliveries, search and rescue, and 
surveillance operations.
                      consequence delivery system
    CBP conducts operations along the entirety of the nearly 2,000 
miles of border between Mexico and the States of California, Arizona, 
New Mexico, and Texas. The ability of the Border Patrol, U.S. 
Immigration and Customs and Enforcement (ICE), our strategic partners, 
and the judicial system to impose consequences on those entering the 
United States illegally varies greatly between each State, judicial 
district, and Border Patrol sector.
    To break the smuggling cycle and deter a subject from attempting 
further illegal entries or participating in a smuggling enterprise, CBP 
has developed, with the support of ICE, a new Consequence Delivery 
System (CDS) that guides management and agents through a process 
designed to uniquely evaluate each subject and identify the ideal 
consequences to deliver to impede and deter further illegal activity.
    The CDS uses a combination of criminal and administrative 
consequences developed by the Border Patrol, and implemented with the 
assistance of ICE, targeting specific classifications of offenders, 
effectively breaking the smuggling cycle along the border of the United 
States. This allows the U.S. Border Patrol to match the individual and 
the consequence in the most effective and efficient way.
     overview of repatriation and criminal prosecution consequences
    Standard criminal prosecutions are the traditional means for 
imposing consequences on aliens who have committed criminal acts. 
Aliens entering the United States without being lawfully admitted are 
subject to prosecution for illegal entry. If an alien has been 
previously ordered removed, they are amenable to a felony charge of 
reentry after removal. Criminal prosecutions are essential to border 
security operations; however the volume of border-related illegal 
activity restricts the percentage of criminal cases that the Border 
Patrol is able to process within the criminal justice system. Due to 
limitations imposed by the labor, detention costs, and the expense of 
criminal prosecutions and administrative proceedings, repatriation is 
often the preferred consequence.
    The following initiatives represent examples of the Consequence 
Delivery System that aids the overarching effort to improve the safety 
and security of the border:
   Operation Against Smugglers Initiative on Safety and 
        Security (OASISS) is a bilateral, criminal prosecution 
        agreement between the United States and Mexico. Since 2005, 
        this program allows for Mexican citizens found smuggling aliens 
        in the United States to be prosecuted by the government of 
        Mexico.
   Streamline is a criminal prosecutions program targeting 
        individuals who illegally enter the United States through 
        defined geographic locations. Consequences are imposed through 
        consistent application of criminal sanctions to reduce illicit 
        cross-border activity. Streamline is a multi-agency effort that 
        relies heavily upon the collaborative efforts of CBP, the U.S. 
        Magistrate, the Federal Judiciary, the U.S. Attorney's Office, 
        the U.S. Marshals Service, ICE, and the Executive Office of 
        Immigration Review.
   Efficient Immigration Court Hearings: CBP is working with 
        EOIR to increase the efficiency of immigration court hearings 
        by placing aliens apprehended along the border in removal 
        proceedings in courts close to the border, eliminating the need 
        to acquire detention space to hold an alien while awaiting an 
        appearance before an Immigration Judge. The judge's Order of 
        Removal establishes that the subject cannot apply to legally 
        re-enter the United States for a period of 10 years. Subjects 
        re-arrested are amenable to be charged criminally with a 
        felony, Illegal Re-entry after Deportation.
   Alien Transfer Exit Program (ATEP) repatriates aliens into 
        regions far from their entry location to disrupt future 
        coordination with smugglers after their arrest and removal. 
        ATEP is designed to disrupt the smuggling cycle that often 
        reunites removed aliens with their hired smugglers to attempt 
        another illegal entry.
   Mexican Interior Repatriation Program (MIRP) is a joint CBP 
        and ICE effort. The program removes Mexican nationals to the 
        interior of Mexico on a voluntary basis, away from high-risk 
        areas of the Sonora Desert, where temperatures spike and 
        exposure-related deaths peak during summer months. The 
        objective of the program is to save lives and disrupt the human 
        smuggling cycle. At-risk aliens are identified for 
        participation by factors that include age, physical condition, 
        and travel status.
   Expedited removal proceedings are initiated against aliens 
        who are present without admission and encountered by an 
        immigration officer within 100 air miles of the U.S. border, 
        and not physically present in the United States for the 14-day 
        period immediately before their arrest. Aliens processed for 
        expedited removal procedures are not detained pending a hearing 
        before an immigration judge, but are immediately processed for 
        a formal administrative removal order. If an alien 
        expeditiously removed returns illegally, he may be considered 
        for criminal prosecution (Illegal Re-entry after Removal).
   Reinstatement of Removal provides the ability to reinstate a 
        previously executed removal order with respect to aliens who 
        illegally reenter the United States. If an alien is found to 
        have reentered the United States after removal, the prior order 
        of removal is reinstated from its original date and is not 
        subject to review. In most cases, it is not necessary to detain 
        aliens processed for reinstatement pending a hearing before an 
        immigration judge. Reinstatement does not preclude criminal 
        prosecution in accordance with local procedures and guidelines. 
        Much like expedited removal, reinstatement of a final order is 
        an efficient means for immigration officers to remove aliens 
        who fit within this category from the United States without 
        referral to an immigration judge.
   Voluntary Return is used at the discretion of Border Patrol 
        agents and their supervisors to allow an alien to depart 
        voluntarily from the United States in lieu of being subject to 
        removal proceedings. Eligible aliens may prefer to seek 
        voluntary return rather than undergo formal removal 
        proceedings. Voluntary return reduces processing time for 
        agency personnel, while at the same time allowing the alien to 
        avoid the potential penalties attached to formal removal 
        proceedings.
   Warrant of Arrest/Notice to Appear is used when Border 
        Patrol agents make an arrest and the alien is to be detained in 
        DHS custody pending a hearing before an immigration judge. 
        Generally speaking, whenever an alien is detained for formal 
        immigration proceedings, the commitment of labor, and resources 
        involved in the removal process are significantly higher.
    We know from experience that targeted enforcement works. Collective 
understanding of where the greatest risks lie along our borders is 
critical to our flexibility in addressing these risks. As CBP applies 
targeted enforcement to areas of evolving threat, mobile response 
capability is critical to timely and effective resolution. This mobile 
response capability must actively engage all CBP components and our 
partners in order to ensure proper synchronization and effectiveness.
               impact of immigration enforcement efforts
    Over the past 2 years, the administration has established clear 
priorities that govern how DHS uses its immigration enforcement 
resources. These priorities focus resources on enhancing border 
security and identifying and removing criminal aliens, those who pose a 
threat to public safety and National security, individuals recently 
apprehended at the border while illegal entering, repeat immigration 
law violators, and other individuals prioritized for removal. While 
additional work remains, DHS has made tremendous progress in its effort 
to focus resources on these enforcement priorities.
    In light of law enforcement priorities and limited resources, ICE 
has implemented policies that call for the utilization of prosecutorial 
discretion, when appropriate, in order to enhance the allocation of 
resources devoted to the removal of priority aliens. As a result of 
these policies, ICE has been able to increase its support of Border 
Patrol operations along the Southwest Border. The detention beds and 
immigration agents that are provided by ICE ERO enhance Border Patrol's 
ability to apply consequences through the CDS which have the greatest 
deterrent effect on individuals apprehended at the border after 
illegally crossing. ICE's focus on I-9 audits has eliminated many of 
the jobs that served as magnets, drawing people to illicitly cross the 
border. Equally important is the deterrent effect provided by ICE's 
prioritization of recent border entrants, criminal offenders, and 
repeat immigration law violators.
    The strategic reallocation of resources to the Southwest Border and 
prioritization of recent border entrants, convicted criminals, and 
repeat immigration law violators has helped CBP continue to drive down 
illicit cross border traffic. There is no doubt that the historic 
results achieved by the Border Patrol along the Southwest Border are 
due, in part, to the assistance of ICE and the establishment of these 
policies.
                               conclusion
    Chairwoman Miller, Ranking Member Cuellar, and distinguished 
Members of the committee, thank you for this opportunity to testify 
about the work of U.S. Customs and Border Protection, and our efforts 
in securing our borders.
    I look forward to answering your questions at this time.

    Mrs. Miller. Thank you very much, Chief.
    Mr. Kibble.

STATEMENT OF KUMAR C. KIBBLE, DEPUTY DIRECTOR, IMMIGRATION AND 
      CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY

    Mr. Kibble. Good morning, Chairman Miller, Ranking Member 
Cuellar, and distinguished Members of the subcommittee. On 
behalf of Secretary Napolitano and Director Morton, thank you 
for the opportunity to address you today regarding ICE's 
mission to promote homeland security and public safety through 
the criminal and civil enforcement of Federal laws governing 
border control, customs, trade, and immigration.
    The men and women of ICE do this every day by carrying out 
ICE's role in protecting the borders through smart and 
effective immigration enforcement; securing and managing our 
borders against illicit trade, travel, and finance; and 
preventing terrorism and enhancing National security. In the 
last 2.5 years we have made unprecedented strides across our 
agency, and as a result, we have made communities across 
America, and Americans around the world, safer and more secure.
    There has been much discussion in recent months about the 
administration's approach to immigration enforcement. The 
administration's policies have been alternatively described as 
either an unprecedented effort to deport record numbers of 
individuals arbitrarily, or as an administrative amnesty that 
ignores the Government's responsibility to enforce immigration 
laws. Both characterizations are inaccurate.
    Over the past few years, ICE has worked to develop guidance 
to help focus immigration enforcement efforts on our highest 
priorities: Promoting public safety, border security, and the 
integrity of the immigration system. This approach has yielded 
impressive results.
    In fiscal year 2010, ICE removed a record 195,772 criminal 
aliens, more than any other year in history, and 81,000 more 
criminal removals than in fiscal year 2008. Nearly 50 percent 
of the aliens we removed in fiscal year 2010 have been 
convicted of crimes.
    This trend has continued. We will again have removed a 
record number of criminal aliens from the country in this most 
recent fiscal year, 2011.
    This prioritized approach will also continue to enhance 
ICE's historic partnership with Customs and Border Protection. 
This partnership includes the dedication of ICE resources to 
the apprehension and detention of recent border-crossers.
    The record-setting results achieved along the Southwest 
Border are attributable, in part, to this unprecedented 
partnership. Notably, this process will allow DHS to free up 
additional resources that can be shifted to the Southwest 
Border to aid and, again, promote border security.
    As I have stated, the administration has established the 
identification and removal of public safety and National 
security threats as a top priority. To aid in this effort, we 
have expanded the use of Secure Communities, which identifies 
individuals arrested and booked into jail for a violation of a 
State or local criminal offense, convicted criminals, gang 
members, and other enforcement priorities in our jails and 
prisons.
    Since its inception in 2008, more than 97,600 aliens 
convicted of crimes, including more than 35,500 convicted of 
aggravated felony offenses, were removed from the United States 
after identification through Secure Communities. These removes 
significantly contributed to a 71 percent increase in the 
overall percentage of convicted criminals removed by ICE.
    In March 2009 the administration launched the Southwest 
Border Initiative, to bring unprecedented focus and intensity 
to the Southwest Border security. In support of this 
initiative, ICE has targeted considerable resources at the 
Southwest Border to investigating transnational crime stemming 
from and resulting in the interdiction of contraband, such as 
firearms, ammunition, bulk cash currency, stolen vehicles, 
human smuggling, and the detection of tunnels and other border 
crime at and between ports of entry along the Southwest Border.
    Since 2006, DHS has leveraged the Border Enforcement 
Security Taskforce, or BEST, model, which combines Federal, 
State, Tribal, local, and foreign law enforcement and 
intelligence resources to synchronize efforts to combat 
emerging and existing threats. Thus far, in fiscal year 2011, 
ICE-led BESTs have made almost 1,600 criminal arrests, seized 
over 200,000 pounds of narcotics, and more than $11 million in 
U.S. currency and monetary instruments. Some 733 defendants 
have been convicted thus far in this most recent fiscal year.
    Enforcing our immigration priorities and obligations is 
neither simple nor easy, and we are committed to getting it 
right. We all agree that we need fair, consistent, and 
enforceable immigration laws that encourage the free flow of 
commerce while respecting both security and the rights of 
individuals.
    While we are committed to being smart and tough with our 
enforcement, it remains the administration's position that 
Congress needs to take up immigration reform. We look forward 
to working with Congress to this end.
    Thank you, again, for the opportunity to appear before you 
today. I am proud of the work our ICE teams do each and every 
day to help strengthen and secure our homeland, and we are 
engaging in record-breaking immigration enforcement strategies.
    I appreciate your interest in this issue and your continued 
support of ICE, and I will be pleased to answer any questions 
you may have.
    [The statement of Mr. Kibble follows:]
                 Prepared Statement of Kumar C. Kibble
                            October 4, 2011
                              introduction
    Chairman Miller, Ranking Member Cuellar, and distinguished Members 
of the subcommittee: On behalf of Secretary Napolitano and Director 
Morton, thank you for the opportunity to address you today regarding 
U.S. Immigration and Customs Enforcement (ICE). As the investigative 
arm of the Department of Homeland Security (DHS), ICE's primary mission 
is to promote homeland security and public safety through the criminal 
and civil enforcement of Federal laws governing border control, 
customs, trade, and immigration. The men and women of ICE do this every 
day by carrying out ICE's role in: (1) Protecting the borders through 
smart and effective immigration enforcement; (2) securing and managing 
our borders against illicit trade, travel, and finance; and (3) 
preventing terrorism and enhancing National security.
    We are effectively managing our resources by carrying out our 
responsibilities in a smart, fair, and efficient manner. In the last 
2\1/2\ years, we have made unprecedented strides across our agency, and 
as a result, we have made communities across America, and Americans 
around the world, safer and more secure. I welcome this opportunity 
today to share with you our successes and our opportunities as we move 
into a new year.
Protecting the Borders Through Smart and Effective Immigration 
        Enforcement
    There has been much discussion in recent months about the 
administration's approach to immigration enforcement. The 
administration's policies have been alternatively described as either 
an unprecedented effort to deport record numbers of individuals 
arbitrarily, or as an administrative amnesty that ignores the 
Government's responsibility to the enforce immigration laws. Both 
characterizations are inaccurate. The administration's policy guidance 
governing immigration enforcement makes this clear, as does its 
enforcement record. ICE has worked to develop guidance to help focus 
ICE's enforcement efforts on our highest priorities, including: Aliens 
who pose dangers to National security or risks to public safety; recent 
illegal entrants; repeat violators of immigration law; and aliens who 
are fugitives from justice or otherwise obstruct immigration controls.
    This approach has yielded results. DHS has produced record 
immigration enforcement. In fiscal year 2010, ICE removed a record 
195,772 criminal aliens, more than any other year in history, and 
81,000 more criminal removals than in fiscal year 2008. Nearly 50 
percent of the aliens we removed in fiscal year 2010 had been convicted 
of criminal offenses. Removing these individuals helps to promote 
public safety in communities across the country. We expect that this 
trend will continue, and that this fiscal year, we will again remove a 
record number of criminal aliens from the country.
    Of those we removed in 2010 who lacked criminal convictions, more 
than two-thirds were either recent border entrants or repeat 
immigration law violators. As such, and unlike ever before, an 
overwhelming majority of the aliens removed fell into one of ICE's 
enforcement priorities. In fact, the number of individuals removed who 
could not definitively be placed into at least one of the priority 
categories--for example, those who were not immigration fugitives, 
repeat immigration law violators, or removed at the border--dropped 
from more than 19 percent in 2008 to less than 10 percent in 2010. We 
expect to see similar results in fiscal year 2011 as well.
            Prosecutorial Discretion
    DHS must ensure that our immigration enforcement resources are 
focused on the removal of those who constitute our highest priorities, 
specifically individuals who pose threats to public safety such as 
criminal aliens and National security threats, as well as repeat 
immigration law violators, recent border entrants, and fugitives from 
justice or those who otherwise obstruct immigration controls. There are 
a significant number of cases currently pending before U.S. Department 
of Justice (DOJ) immigration courts, many of these will take years to 
resolve. Tens of thousands more are pending review in Federal courts. 
Each of these cases costs taxpayers thousands of dollars, and those 
involving low-priority individuals divert resources and attention from 
high-priority cases. Due to the fiscal limitations, the expenditure of 
significant resources on cases that fall outside of DHS enforcement 
priorities hinders our public safety mission by consuming litigation 
resources and diverting resources away from higher-priority 
individuals.
    Prosecutorial discretion has always been exercised in order to 
prioritize the use of immigration enforcement resources. The 
Immigration and Naturalization Service under the Department of Justice 
and later ICE under DHS has used discretion on a case-by-case basis 
where we feel it has been appropriate and responsible to do so, and 
where it enhances our ability to meet our priorities. In keeping with 
this practice, DHS and DOJ have recently established an interagency 
working group to implement existing guidance regarding the appropriate 
use of prosecutorial discretion in a manner consistent with our 
enforcement priorities.
    This interagency working group will work to determine that 
immigration judges, the Board of Immigration Appeals, and the Federal 
courts are focused on adjudicating high-priority cases more swiftly by 
relieving pressure on the judicial system by identifying very low-
priority cases and on a case-by-case basis, setting those cases aside. 
This will allow for additional DHS resources to be focused on the 
identification and removal of those individuals who pose the greatest 
threats. In part, this process will accelerate the removal of high-
priority aliens from the country. At no point will any individuals be 
granted any form of ``amnesty.'' There will be no reduction in the 
overall levels of enforcement and removals--only a more effective way 
of marshaling our resources towards our highest-priority cases and 
thus, increasing the number of criminal aliens and repeat immigration 
violators removed from the country.
    Likewise, it will enhance ICE's historic partnership with U.S. 
Customs and Border Protection (CBP). Over the past few years, ICE has 
worked closely with CBP to increase efforts to prevent illicit trade 
and travel across our borders. This partnership includes the dedication 
of ICE officers, agents, and detention facilities to the apprehension 
and detention of recent border-crossers. The record-setting results 
achieved along the Southwest Border are attributable, in part, to this 
unprecedented partnership. Notably, this process will allow DHS to free 
up additional resources that will be dedicated to the Southwest Border.
            Secure Communities
    As I have stated, the administration has established the 
identification and removal of public safety and National security 
threats as a top priority. To aid in this effort, we have expanded the 
use of the Secure Communities program, which identifies individuals 
arrested and booked into jail for a violation of a State or local 
criminal offense, convicted criminals, gang members, and other 
enforcement priorities in our jails and prisons.
    ICE has acknowledged that it faced challenges in rolling out the 
Secure Communities program initially, including in explaining how the 
program works and which entities are required to participate. 
Nevertheless, Secure Communities has proven to be one of our best tools 
to help focus our immigration enforcement resources on our highest 
enforcement priorities, including convicted criminals and egregious 
immigration law violators, and ICE remains fully committed to the 
program.
    Since its inception on October 27, 2008, through September 18, 
2011, more than 97,600 aliens convicted of crimes, including more than 
35,500 convicted of aggravated felony offenses were removed from the 
United States after identification through Secure Communities. These 
removals significantly contributed to a 71 percent increase in the 
overall percentage of convicted criminals removed by ICE, with 81,000 
more criminal alien removals in fiscal year 2010 than in fiscal year 
2008. As a result of the increased focus on criminals, removals of non-
criminals fell by 23 percent during the same time period. In addition, 
over 25,000 aliens who were previously removed and reentered or who 
failed to leave the United States following the issuance of a final 
order of removal, deportation or exclusion, who are also DHS 
enforcement priorities, were removed through Secure Communities over 
the past 2 years.
    Earlier this year, as part of the administration's continued 
commitment to smart, effective immigration enforcement, ICE announced 
key improvements to the Secure Communities program. They included:
   Establishing a task force, comprised of law enforcement, 
        State and local government officials, prosecutors, and 
        immigration advocates, as part of the Homeland Security 
        Advisory Council to develop recommendations on how to improve 
        Secure Communities so that it can better focus on identifying 
        and removing individuals who pose true public safety threats. 
        ICE is currently reviewing recommendations submitted by the 
        Task Force;
   Developing a new policy to protect victims of and witnesses 
        to crimes, to ensure that the crimes continue to be reported 
        and prosecuted;
   Revising the detainer form that ICE sends to local 
        jurisdictions to emphasize long-standing guidance that State 
        and local entities are not to detain an individual for more 
        than 48 hours pursuant to the detainer;
   Working with the DHS Office for Civil Rights and Civil 
        Liberties (CRCL) on regular and in-depth statistical monitoring 
        of the program;
   Creating a series of training sessions in collaboration with 
        CRCL designed primarily for use by front-line State and local 
        law enforcement agency personnel to address civil rights and 
        civil liberties issues that may be relevant when Secure 
        Communities is activated for a jurisdiction; and
   Agreeing to a protocol for CRCL to take the lead in 
        investigating complaints of alleged civil rights violations for 
        jurisdictions where Secure Communities is activated.
    We are confident these changes will aid in our continued efforts to 
strengthen and improve Secure Communities. We will continue to expand 
Secure Communities to additional jurisdictions, and we look forward to 
Nation-wide deployment by the end of 2013. We will also continue to 
examine the program's effectiveness and invest in additional training 
and education efforts.
            Worksite Enforcement
    As part of its immigration enforcement efforts, ICE has been 
pursuing a comprehensive worksite enforcement strategy to deter 
unlawful employment and drive a culture of compliance with the Nation's 
immigration-related employment laws. The administration is focused on 
conducting criminal investigations and prosecuting employers who 
exploit or abuse their employees and those who have a history of 
knowingly and repeatedly employing an illegal workforce.
    Our strategy has been designed to: (1) Penalize employers who hire 
illegal workers; (2) deter employers who are tempted to hire illegal 
workers; and (3) encourage all employers to take advantage of easy to 
use and well-crafted compliance tools.
    The success of our approach is evident in the statistics. As of 
September 17, 2011, ICE has initiated 3,015 investigations, which is 
154 percent more than in all of fiscal year 2008. In fiscal year 2010, 
ICE arrested 196 employers for criminal worksite-related immigration 
violations, surpassing the previous high of 135 arrests in fiscal year 
2008. So far in fiscal year 2011, ICE has also issued a record 2,393 
notices of inspection, a more than a 375 percent increase from the 
number issued in all of fiscal year 2008. This year, ICE has issued 331 
final orders totaling $9 million in fines levied on employers compared 
to 18 final orders issued totaling $675,000 in fiscal year 2008. In 
addition, fiscal year 2010 worksite investigations resulted in a record 
$36.6 million in judicial fines, forfeitures, and restitutions.
    Enforcing our immigration priorities and obligations is neither 
simple nor easy, and we are committed to getting it right. We all agree 
that we need fair, consistent, and enforceable immigration laws that 
encourage the free flow of commerce while respecting both security and 
the rights of individuals. We are committed to making changes within 
the immigration system that make sense and are achievable. While we are 
committed to being smart and tough with our enforcement, it remains the 
administration's position that Congress needs to take up immigration 
reform. We look forward to working with Congress to this end.
Securing and Managing our Borders Against Illicit Trade, Travel, and 
        Finance
            Southwest Border Initiative
    In March 2009, the administration launched the Southwest Border 
Initiative to bring unprecedented focus and intensity to Southwest 
Border security, coupled with a reinvigorated, smart, and effective 
approach to enforcing immigration laws in the interior of our country. 
In support of this initiative, ICE has targeted considerable resources 
at the Southwest Border to address the activities associated with 
transnational criminal organizations, including the interdiction of 
contraband such as firearms, ammunition, bulk cash currency, stolen 
vehicles, human smuggling, and the detection of tunnels and other 
border crime at and between ports of entry along the Southwest Border. 
Under this initiative, ICE has doubled the personnel assigned to Border 
Enforcement Security Task Forces (BESTs); increased the number of 
intelligence analysts along the Southwest Border focused on cartel 
violence; and quintupled deployments of Border Liaison Officers to work 
with their Mexican counterparts. At the end of the third quarter of 
fiscal year 2011, ICE deployed special agents to high-risk locations, 
including Tijuana and Monterey, Mexico. ICE so far this year has 
initiated 9,748 investigations along the Southwest Border, and is on 
pace to surpass fiscal year 2010 totals.
    Additionally, with the aid of $80 million provided in the 2010 
Southwest Border supplemental appropriations, ICE has deployed 241 
special agents, investigative support personnel, and intelligence 
analysts to the border. Indeed, ICE now has one-quarter of all its 
special agents assigned to the Southwest Border, more agents and 
officers along the border than ever before.
            Border Enforcement and Security Task Forces (BESTs)
    In fiscal year 2011, ICE also continued to bolster border security 
through the efforts of its BESTs, which bring together Federal, State, 
local, territorial, Tribal, and foreign law enforcement. Thus far in 
fiscal year 2011, ICE-led BESTs have made 1,565 criminal arrests, 814 
administrative arrests, and obtained 757 indictments; seized 200,278 
pounds of illegal drugs and $11.4 million in U.S. currency and monetary 
instruments. Some 733 defendants have been convicted thus far in fiscal 
year 2011.
            Illicit Finance Investigations
    One of the most effective methods for dismantling transnational 
criminal organizations is to attack the criminal proceeds that fund 
their operations. In coordination with public and private partners, ICE 
works to seize illicit proceeds derived from and used for criminal 
activities, and to shut down the mechanisms used to retain and transfer 
these funds by countering bulk cash smuggling within the U.S. 
financial, trade, and transportation sectors targeted by criminal 
networks.
    ICE's bulk cash smuggling investigations are coordinated through 
the ICE-led Bulk Cash Smuggling Center, from which we provide real-time 
operational and tactical support to Federal, State, and local officers 
involved in bulk cash smuggling seizures. In 2010, ICE, in partnership 
with the Drug Enforcement Administration, utilized the El Paso 
Intelligence Center (EPIC) to tackle bulk cash smuggling. This 
partnership ensures improved collaboration across the Federal 
Government for bulk cash smuggling investigations 24 hours a day, 7 
days a week.
            International Partners and Cooperation
    ICE works closely with our international partners to disrupt and 
dismantle transnational criminal organizations. As part of these 
efforts, ICE currently maintains nine vetted units world-wide. These 
units are composed of highly-trained host country counterparts that 
have the authority to investigate and enforce violations of law in 
their respective country. Because ICE officials working overseas do not 
possess law enforcement or investigative authority in host countries, 
the use of vetted units enables ICE to dismantle, disrupt, and 
prosecute transnational criminal organizations while respecting the 
sovereignty of the host country.
    In fiscal year 2010, Transnational Criminal Investigative Units 
(TCIUs) in Mexico, Colombia, and Ecuador played a central role in 
Operation Pacific Rim--an ICE-led investigation that dismantled one of 
the most powerful and sophisticated bulk cash and drug smuggling drug 
trafficking organizations in the world. As a result of international 
cooperation, this operation resulted in ten guilty pleas, 21 
indictments, and 22 arrests along with seizures totaling over $174 
million in currency, 3.8 tons of cocaine, $37 million in criminal 
forfeitures, and $179 million in property. During 2011, two more TCIUs 
became operational and ICE plans to expand additional TCIUs in fiscal 
year 2012.
Preventing Terrorism and Enhancing National Security
    As the largest investigative arm of DHS, ICE enhances National and 
border security by interrupting the illicit flow of money, merchandise, 
and contraband that supports terrorist and criminal organizations. As 
of the end of the third quarter of fiscal year 2011, ICE has seized 
$363 million in currency, 1.4 million pounds of narcotics and other 
dangerous drugs, and $272 million worth of contraband and other illegal 
merchandise. In addition, ICE agents and officers responded to 1.1 
million inquiries and calls for assistance from other Federal, State, 
and local law enforcement agencies through ICE's Law Enforcement 
Support Center (LESC).
    ICE leads efforts in National security investigations through 
interconnected programs that prevent criminals and terrorists from 
using our Nation's immigration system to gain entry to the United 
States. This includes: Investigating terrorist organizations and their 
actors; preventing criminal and terrorists from obtaining U.S. visas 
overseas; preventing criminal and terrorist organizations from 
acquiring and trafficking weapons and sensitive technology; and 
identifying and removing war criminals and human rights abusers from 
the United States, while protecting children from exploitation.
            Joint Terrorism Task Force (JTTF)
    The FBI-led JTTFs are a part of a joint counterterrorism 
partnership between U.S. law enforcement agencies. Since 2007, ICE 
agents assigned to JTTFs have initiated 5,564 cases, resulting in 
approximately 1,119 criminal arrests and 2,010 administrative arrests. 
In fiscal year 2011, ICE special agents in Louisville, Kentucky, 
assisted in a JTTF investigation which ultimately led to the arrest of 
Waad Ramadan Alwan and Mohanad Shareef Hammadi. Both of these Iraqi 
refugees were indicted on Federal terrorism charges, as well as the 
murder of a U.S. person engaged in official duties. They both had 
allegedly conspired to have money and weapons shipped to Iraq to 
support the activities of al-Qaeda. In fiscal year 2012, ICE will 
continue to collaborate with our law enforcement colleagues through the 
FBI-led JTTFs.
            Visa Security Program
    The Visa Security Program (VSP) deploys ICE special agents to 
diplomatic posts world-wide to conduct visa security activities and 
identify potential terrorists or criminal threats before they reach the 
United States. By working closely with the Department of State, this 
program enhances National security by providing an additional level of 
review of persons of special interest before they enter the United 
States. ICE conducts visa security operations at 19 high-risk visa 
adjudication posts in 15 countries.
            Counter-proliferation Investigations
    ICE leads the U.S. Government's efforts to prevent foreign 
adversaries from illegally obtaining U.S. military products and 
sensitive technology, including weapons of mass destruction and their 
components. In fiscal year 2011, ICE initiated 1,780 new investigations 
into illicit procurement activities, made 583 criminal arrests, 
obtained 419 indictments, achieved 262 convictions, and made 2,332 
seizures valued at $18.9 million.
    In 2010, ICE, in coordination with the World Customs Organization 
(WCO), launched ``Project Global Shield,'' an unprecedented 
multilateral law enforcement effort aimed at combating the illicit 
cross-border diversion and trafficking of precursor chemicals used by 
terrorist and other criminal organizations to manufacture improvised 
explosive devices by monitoring their cross-border movements. On March 
22, 2011, Global Shield was endorsed by the WCO Enforcement Committee 
and converted from a pilot project to a permanent program. It currently 
has 83 participating countries and has led to 19 arrests, 24 seizures, 
and chemical seizures totaling over 33 metric tons.
            Human Trafficking and Human Smuggling Investigations
    ICE works with our interagency and international partners to extend 
our borders and disrupt and dismantle international human smuggling and 
trafficking networks and organizations along their entire routes. ICE 
holds the directorship of the Human Smuggling and Trafficking Center 
(HSTC), an interagency information and intelligence fusion center and 
clearinghouse. The HSTC was established to facilitate the broad 
dissemination of anti-smuggling and trafficking information and help 
coordinate the U.S. Government's efforts against human smuggling, human 
trafficking, and criminal facilitation of terrorist mobility.
    In 2010, ICE's Office of Intelligence established its Human 
Trafficking Unit to develop intelligence and identify potential human 
trafficking investigative targets. In the coming fiscal year, ICE plans 
to expand coordination with the Departments of Justice and Labor to 
initiate additional investigations of human trafficking violations.
    Sadly, a significant number of human trafficking victims are 
children. ICE takes these cases very seriously. ICE's ``Operation 
Predator'' targets and investigates human smugglers and traffickers of 
minors, as well as child pornographers, child sex tourists and 
facilitators, criminal aliens convicted of offenses against minors, and 
those deported for child exploitation offenses who have returned 
illegally. Since its launch in 2003, Operation Predator has resulted in 
the arrest of over 13,594 sexual predators, of which 10,975 were non-
citizens.
    In fiscal year 2012, ICE will expand operations of our Child 
Exploitation Section by establishing the Child Exploitation Center and 
deploying Child Sex Tourism Traveler Jump Teams to conduct 
investigations of U.S. citizens traveling in foreign counties for the 
purpose of exploiting minors. ICE will also continue working to end 
human trafficking and smuggling alongside the Department's ``Blue 
Campaign''--a DHS initiative to combat human trafficking through 
enhanced public awareness, victim assistance programs, and law 
enforcement training and initiatives.
                               conclusion
    Thank you so much for the opportunity to share with you the good 
work of Immigration and Customs Enforcement. I'm proud of the work our 
ICE teams do each and every day all around the world to help strengthen 
and secure our homeland; we're engaging in record-breaking immigration 
enforcement strategies, and I am confident we will continue to do so. 
ICE's broad authority to enforce the Nation's trade, travel, finance, 
and immigration laws has made American communities safer. On behalf of 
the men and women of ICE, I thank you again for the opportunity to 
testify on these efforts. I would now welcome any questions you may 
have.

    Mrs. Miller. Thank you very much, Mr. Kibble.
    The Chairwoman now recognizes Dr. Wasem, and we appreciate 
your attendance here today, Doctor.

STATEMENT OF RUTH ELLEN WASEM, PH.D., SPECIALIST IN IMMIGRATION 
             POLICY, CONGRESSIONAL RESEARCH SERVICE

    Ms. Wasem. Chairwoman Miller, Ranking Member Thompson and 
Ranking Member Cuellar, and Members of the committee, I am 
honored to be testifying before you today on behalf of the 
Congressional Research Service. This morning I will summarize 
my written testimony, which I would like to submit for the 
record, with three themes: The features of U.S. immigration law 
that are especially pertain today's hearing, the factors that 
drive unauthorized migration, and the relevance of the recent 
Department of Homeland Security memorandum upon prosecutorial 
discretion.
    U.S. immigration law specifies a complex set of numerical 
limits and preference categories that reflect the principles of 
family reunification, workers with needed skills, protection of 
refugees, and diversity of origin. The law also provides for 
temporary admission of foreign nationals, such as tourists, 
students, and workers. In addition to the provisions in the law 
over who and how many may be admitted, the law establishes a 
system of immigration authorities, tools, and procedures to 
control unauthorized migration and to enforce the law against 
those who violate it.
    Immigration law further targets special categories of 
foreign nationals for exclusion and removal. Among these 
targeted categories are criminal aliens and those who pose 
National security risks.
    The 1986 Immigration Reform and Control Act was the last 
major law that allowed unauthorized aliens living in the United 
States to legalize their status. As you can see from Figure 1, 
the estimated number of unauthorized resident aliens has 
steadily increased since then, peaking in 2007.
    The research points to various factors that have 
contributed to the increase in unauthorized resident aliens 
over the past 2 decades as well as the recent leveling off in 
these trends. Unauthorized migration is generally attributed to 
the push-pull of job opportunities in the United States in 
contrast to the lack of opportunities in sending countries. 
Accordingly, the recession that began in December 2007 may have 
curbed unauthorized migration, particularly because the sectors 
that traditionally rely on unauthorized aliens--construction, 
services, and hospitality--have been especially hard hit.
    The number of aliens apprehended in the United States 
offers another perspective on the dynamics of unauthorized 
migration. Figure 2 compares apprehension data with the number 
of Border Patrol agents and the unemployment rate.
    While it appears that apprehensions are correlated with the 
number of agents and with unemployment levels over the past 
decade, the empirical evidence to support a causal link with 
either labor market demands or border enforcement has not been 
demonstrated. Other contributing factors are in my written 
testimony.
    All unauthorized aliens are potentially removable. Figure 3 
shows that formal removals have grown from 30,000 in 1990 to 
over 387,000 in 2010. Since its enactment in 1952, the 
Immigration Nationality Act has given the attorney general, and 
more recently, the Secretary of Homeland Security, 
prosecutorial discretion in exercising the power to remove 
foreign nationals.
    As early as 1975, agencies have issued guidance on this 
that have been driven by humanitarian concerns, resource 
limitations, and enforcement priorities. The backdrop of these 
memos provide historical context for the latest memorandum.
    In the 2011 memorandum, the guidelines included National 
security or risks to public safety, recent illegal immigrants, 
and fugitives or other aliens who obstruct immigration 
controls. The 2011 June memo, Director Morton details 18 
specific factors to be considered in weighing prosecutorial 
discretion.
    Now, in addition to citing factors that might prioritize 
the removal proceeding, he also lists factors that might halt a 
removal proceeding. Some of these would include an alien has an 
immediate relative in the U.S. military, the alien is a 
caretaker of someone with physical or mental disabilities, or 
the alien has strong ties to the community.
    It is also useful to point out what the Morton memorandum 
does not do. They do not give anyone legal immigration status. 
They do not provide an employment authorization. They do not 
prevent the reopening of a removal case at a later date.
    In closing, the relevance of the memorandum on 
prosecutorial discretion may be viewed through the lens of a 
changing environment. Despite the recent drop, the sheer size 
in the unauthorized population has grown substantially in the 
past 2 decades.
    State and local governments are playing an increasing role 
in enforcing immigration law. Congressionally-mandated programs 
as well as technological advances have led to dramatic 
improvements in the identification of removable aliens. These 
dynamics serve to expand the pool of removable aliens at a time 
when the financial resources of the Federal Government are 
especially pressed.
    This concludes my formal testimony, and I look forward to 
your questions.
    [The statement of Ms. Wasem follows:]
                 Prepared Statement of Ruth Ellen Wasem
                            October 4, 2011
    Chairwoman Miller, Ranking Member Cuellar, and Members of the House 
Homeland Security Subcommittee on Border and Maritime Security, I am 
honored to be testifying before you today on behalf of the 
Congressional Research Service. This morning I will discuss some of the 
key features of U.S. immigration law that pertain to this hearing, the 
factors that drive unauthorized migration to the United States, and the 
relevance of the recent Department of Homeland Security (DHS) memoranda 
on prosecutorial discretion.
    Four major principles underlie U.S. immigration policy: The 
reunification of families, the admission of immigrants with needed 
skills, the protection of refugees, and the diversity of admissions by 
country of origin. The Immigration and Nationality Act (INA) specifies 
a complex set of numerical limits and preference categories that give 
priorities for immigration reflecting these principles. Typically, 
about 1 million new legal permanent residents are recorded each year. 
The INA also provides for the admission of various categories of 
foreign nationals, who are admitted for a temporary period of time and 
a specific purpose. They include a wide range of categories, including 
tourists, students, business people, and workers.\1\
---------------------------------------------------------------------------
    \1\ Customs and Border Protection inspectors tallied 163 million 
temporary admissions of foreign nationals to the United States during 
2009. CRS Report RL31381, U.S. Immigration Policy on Temporary 
Admissions, by Ruth Ellen Wasem.
---------------------------------------------------------------------------
    In addition to the system of categories, priorities and numerical 
limits that govern who and how many may be admitted, the INA 
establishes a system of immigration authorities, tools, and procedures 
to control unauthorized migration and to enforce the law against those 
who violate the provisions governing legal entry. The law further 
targets special categories of foreign nationals for exclusion and 
removal from the United States. These categories include criminals 
(e.g., aggravated felons, human traffickers, and alien smugglers) and 
those that pose National security risks (e.g., terrorists, subversives, 
and other threats to National security).\2\
---------------------------------------------------------------------------
    \2\ These criteria include: Health-related grounds; criminal 
history; security and terrorist concerns; public charge (e.g., 
indigence); illegal entrants; and aliens previously removed. INA  
212(a). CRS Report RL32480, Immigration Consequences of Criminal 
Activity, by Michael John Garcia; CRS Report R41104, Immigration Visa 
Issuances and Grounds for Exclusion: Policy and Trends, by Ruth Ellen 
Wasem.
---------------------------------------------------------------------------
    The last major law that allowed unauthorized aliens living in the 
United States to legalize their status was the Immigration Reform and 
Control Act (IRCA) of 1986 (Pub. L. 99-603). Figure 1 presents the 
estimate of 3.2 million unauthorized resident aliens in 1986. As 
expected after the passage of IRCA, the estimate for 1988 dropped to 
1.9 million.\3\ The estimated unauthorized resident alien population 
grew to 3.4 million in 1992 and to 5.0 million (subsequently revised to 
5.8 million) in 1996.\4\ By the close of the decade, the estimated 
number of unauthorized alien residents reached 8.5 million.\5\ The 
estimated number of unauthorized resident aliens had risen to 9.3 
million by 2002.\6\ During the first decade after IRCA, researchers 
projected that the net growth in unauthorized aliens had averaged about 
500,000 annually; analyses done during the early 2000s estimated the 
average growth at 700,000 to 800,000 unauthorized alien residents 
annually.\7\
---------------------------------------------------------------------------
    \3\ Karen Woodrow and Jeffrey Passel, ``Post-IRCA Undocumented 
Immigration to the United States: An Analysis Based on the June 1988 
CPS,'' in Undocumented Migration to the United States, by Frank D. 
Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 1990).
    \4\ Annual Estimates of the Unauthorized Immigrant Population 
Residing in the United States and Components of Change: 1987 to 1997, 
by Robert Warren, Office of Policy and Planning, U.S. Immigration and 
Naturalization Service, September 2000.
    \5\ U.S. Congress, House Committee on the Judiciary, Subcommittee 
on Immigration and Claims, Hearing on the U.S. Population and 
Immigration, August 2, 2001.
    \6\ The Urban Institute, Undocumented Immigrants: Facts and 
Figures, by Jeffrey Passel, Randy Capps, and Michael Fix, January 12, 
2004.
    \7\ Jeffrey S. Passel and D'Vera Cohn, Trends in Unauthorized 
Immigration: Undocumented Inflow Now Trails Legal Inflow, Pew Hispanic 
Center, October 2, 2008. 


    The calculated number of unauthorized alien residents peaked in 
2007, when there were estimated 12.4 million unauthorized alien 
residents in the United States. The estimates made from both the 
Current Population Survey (CPS) and the American Community Survey (ACS) 
indicated that the number dropped in 2008 and in 2009 before leveling 
off in 2010.\8\
---------------------------------------------------------------------------
    \8\ Jeffrey S. Passel and D'Vera Cohn, Unauthorized Immigrant 
Population: National and State Trends, 2010, Pew Hispanic Center, 
February 1, 2011.
---------------------------------------------------------------------------
    The research points to various factors that have contributed to the 
increase in unauthorized resident aliens over the past two decades as 
well as a leveling off of these trends. Historically, unauthorized 
migration is generally attributed to the ``push-pull'' of prosperity-
fueled job opportunities in the United States in contrast to limited or 
nonexistent job opportunities in the sending countries.\9\ Accordingly, 
the economic recession that began in December 2007 may have curbed the 
migration of unauthorized aliens, particularly because sectors that 
traditionally rely on unauthorized aliens, such as construction, 
services, and hospitality, have been especially hard-hit.
---------------------------------------------------------------------------
    \9\ CRS Report RL32982, Immigration Issues in Trade Agreements, by 
Ruth Ellen Wasem.
---------------------------------------------------------------------------
    Some researchers maintain that lax enforcement of employer 
sanctions for hiring unauthorized aliens facilitated the ``pull'' for 
many years and that the ratcheting up of work site enforcement in 2007 
and 2008, along with increased investments in border security, has 
subsequently mitigated the flow.\10\ Trend data suggest a correlation, 
but it remains difficult to demonstrate this element empirically, 
especially because the increased worksite enforcement and removals were 
coincident with the housing downturn and the onset of the economic 
recession.\11\
---------------------------------------------------------------------------
    \10\ CRS Report R40002, Immigration-Related Worksite Enforcement: 
Performance Measures, by Andorra Bruno.
    \11\ Steven Camarota and Karen Jensenius, A Shifting Tide: Recent 
Trends in the Illegal Immigrant Population, Center for Immigration 
Studies, July 2009.
---------------------------------------------------------------------------
    Although most policy makers have assumed that tighter border 
enforcement reduces unauthorized migration, some researchers have 
observed that the strengthening of the immigration enforcement 
provisions may have inadvertently increased the population of 
unauthorized resident aliens. This interpretation, generally referred 
to as a caging effect, argues that increased penalties for illegal 
entry, coupled with increased resources for border enforcement 
disrupted the historical pattern of a circulatory movement of migratory 
workers along the Southern Border; this in turn raised the stakes in 
crossing the border illegally and created an incentive for those who 
succeed in entering the United States to stay.\12\
---------------------------------------------------------------------------
    \12\ Wayne Cornelius, ``Death at the Border: Efficacy and 
Unintended Consequences of U.S. Immigration Control Policy,'' 
Population and Development Review, vol. 27, no. 4 (December 2001); 
Wayne Cornelius, ``Evaluating Recent U.S. Immigration Control Policy: 
What Mexican Migrants Can Tell Us,'' in Crossing and Controlling 
Borders: Immigration Policies and Their Impact on Migrants' Journeys, 
ed. Mechthild Baumann, Astrid Lorenz, and Kerstin Rosenhow (Farmington, 
MI: Budrich Unipress Ltd, 2011); Thomas J. Espenshade, ``Undocumented 
Migration to the United States: Evidence from a Repeated Trials 
Model,'' in Undocumented Migration to the United States, by Frank D. 
Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 1990); 
Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and 
Mirrors: Mexican Immigration in an Era of Economic Integration (Russell 
Sage Foundation, 2002). 



    Data on the number of aliens apprehended entering the United States 
offers another perspective on unauthorized migration. Figure 2 compares 
apprehension data with the number of Border Patrol agents and with the 
unemployment rate. While it appears that apprehensions are correlated 
to the number of agents and unemployment levels over the past decade, 
the empirical evidence to support a causal link with either labor 
market demands or strengthened border enforcement policies has not been 
demonstrated.\13\
---------------------------------------------------------------------------
    \13\ For further discussion see: CRS Report R41237, People Crossing 
Borders: An Analysis of U.S. Border Protection Policies, by Alison 
Siskin.
---------------------------------------------------------------------------
    Political instability or civil unrest at home is another element 
that traditionally has led people to risk unauthorized migration.\14\ 
Asylum seekers who enter the United States illegally have always been 
included in the estimates of the unauthorized alien population. Asylum 
seekers have become a smaller share of the unauthorized alien 
residents, however, and do not account the overall trends in the 
unauthorized resident aliens in recent years.\15\
---------------------------------------------------------------------------
    \14\ For a summary of this research, see Commission for the Study 
of International Migration and Cooperative Economic Development, 
Unauthorized Migration: An Economic Development Response, Appendix E, 
July 1990.
    \15\ Not all humanitarian migrants are eligible for asylum or 
refugee status, and roughly 30% of all asylum cases in recent years 
have been approved. The legal definition of asylum in the INA is 
consistent with the refugee definition, which specifies that a refugee 
is a person who is unwilling or unable to return to his country of 
nationality or habitual residence because of a well-founded fear of 
persecution on account of race, religion, nationality, membership in a 
particular social group, or political opinion. CRS Report R41753, 
Asylum and ``Credible Fear'' Issues in U.S. Immigration Policy, by Ruth 
Ellen Wasem.
---------------------------------------------------------------------------
    The inadequacies in the current system of legal immigration is 
sometimes cited as another factor contributing to the growth in 
unauthorized alien residents.\16\ There are statutory ceilings that 
limit the type and number of immigrant visas issued each year, which 
create wait-times for visas to become available to legally come to the 
United States.\17\ The Immigration Amendments of 1990 cut the number of 
skilled and unskilled employment-based legal permanent residents from 
27,000 to 10,000 annually, leading some to argue that the remainder of 
this migrant flow shifted from legal to illegal pathways to work in the 
United States. Family members sometimes risk staying in the United 
States on an expired temporary visa or entering the United States 
illegally to be with their family while they wait for the visas to 
become available. It remains difficult, however, to correlate these 
factors or to guarantee that increasing the levels of legal migration 
would absorb the flow of unauthorized migrants.\18\ The recent increase 
in the number of aliens formally removed from the United States 
annually might also have had a chilling effect on foreign nationals 
weighing the risk of illegal presence if they would ultimately be 
eligible to immigrate.\19\
---------------------------------------------------------------------------
    \16\ U.S. Congress, Senate Committee on the Judiciary, Subcommittee 
on Immigration, Refugees and Border Security, Comprehensive Immigration 
Reform in 2009, Can We Do It and How? 111th Cong., 1st sess., April 30, 
2009.
    \17\ CRS Report RL32235, U.S. Immigration Policy on Permanent 
Admissions, by Ruth Ellen Wasem.
    \18\ U.S. Congress, Senate Committee on the Judiciary, Subcommittee 
on Immigration, Refugees and Border Security, Comprehensive Immigration 
Reform in 2009, Can We Do It and How? 111th Cong., 1st sess., April 30, 
2009.
    \19\ Office of Immigration Statistics, Immigration Enforcement 
Actions: 2010, Department of Homeland Security, June 2011, http://
www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-
2010.pdf. 



    Figure 3 shows that formal removals have grown from 30,039 in 1990 
to 387,242 in 2010. Since 2001, formal removals have increased by over 
100%. The trends for direct returns at the border and voluntary 
departures (i.e., permitting aliens to leave the United States on their 
own recognizance and at their own expense) within the interior in 
Figure 3 resemble that of apprehensions over the same period as 
depicted in Figure 2.
    All unauthorized aliens (i.e., aliens who have entered without 
permission or violated the terms of their visas) are potentially 
removable. The INA specifies six broad classes of foreign nationals who 
are removable, including persons who:
   are inadmissible at time of entry or violate their 
        immigration status;\20\
---------------------------------------------------------------------------
    \20\ All aliens must satisfy to DHS inspectors upon entry to the 
United States that they are not ineligible for admission under the 
grounds for inadmissibility specified in INA  212. These include 
health-related grounds, criminal history, National security and 
terrorist concerns, becoming a public charge, seeking to work without 
proper labor certification, illegal entry and immigration law 
violations, lack of proper documents, ineligibility for citizenship, 
and aliens previously removed.
---------------------------------------------------------------------------
   commit certain criminal offenses (e.g., crimes of moral 
        turpitude,\21\ aggravated felonies,\22\ alien smuggling);
---------------------------------------------------------------------------
    \21\ Moral turpitude is not easily defined under immigration law. 
Some argue that the flexibility in the term allows for changing social 
norms.
    \22\ The definition of aggravated felony (defined in INA  
101(a)(43)) includes over 50 types of crimes. In addition, an alien 
convicted of an aggravated felony is conclusively presumed to be 
deportable (INA  238(c)). Misdemeanors at the State level may be 
aggravated felonies under the INA.
---------------------------------------------------------------------------
   fail to register (if required under law) or commit document 
        fraud;
   are security risks (such as aliens who violate any law 
        relating to espionage, engage in criminal activity which 
        endangers public safety, partake in terrorist activities, or 
        assisted in Nazi persecution or genocide);
   become a public charge within 5 years of entry;\23\ or
---------------------------------------------------------------------------
    \23\ So few aliens have been deported under these grounds since 
1980, that DHS does not report the number.
---------------------------------------------------------------------------
   vote unlawfully.
    Foreign nationals who are removed are subsequently subject to bars 
to reenter the country.\24\
---------------------------------------------------------------------------
    \24\ There is a 5-year bar to admissibility for aliens who have 
been subjected to expedited removal or those ordered removed when 
trying to enter the United States. There is a 10-year bar for admission 
for those who were ordered deported. There is a 20-year bar for those 
who have been previously removed, and those convicted of an aggravated 
felony are permanently inadmissible. INA  212(a)(9)(A).
---------------------------------------------------------------------------
    In removal proceedings an immigration judge from the Department of 
Justice's Executive Office for Immigration Review determines whether a 
foreign national is removable. The courts have ruled that removal 
proceedings are civil not criminal proceedings.\25\ The proceeding 
commences when the person is issued a notice to appear (NTA) which can 
be issued by a variety of DHS personnel including Border Patrol 
officers in Customs and Border Protection (CBP), asylum officers and 
adjudicators in U.S. Citizenship and Immigration Services (USCIS), and 
investigators and detention officers in Immigration and Customs 
Enforcement (ICE).\26\
---------------------------------------------------------------------------
    \25\ Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, 
Immigration Law and Procedure. Newark: LexisNexis, vol 6.
    \26\ 8 C.F.R.  239.1(a).
---------------------------------------------------------------------------
    In 1986, Congress made deporting aliens who had been convicted of 
certain crimes an enforcement priority. IRCA required the Attorney 
General ``In the case of an alien who is convicted of an offense which 
makes the alien subject to deportation . . . [to] begin any deportation 
proceeding as expeditiously as possible after the date of the 
conviction.''\27\ Between 1988 and 1996, Congress enacted a series of 
measures, including the Illegal Immigrant Reform and Immigrant 
Responsibility Act of 1996 (Pub. L. 104-208), expanding the definition 
of aggravated felons and created additional criminal grounds for 
removal.\28\
---------------------------------------------------------------------------
    \27\ Pub. L. 99-603,  701.
    \28\ Anti-Drug Abuse Act of 1988 (Pub. L. 100-690); Immigration Act 
of 1990, Pub. L. 101-649 (1990); Immigration and Nationality Technical 
Correction Act of 1994, Pub. L. 103-416 (1994); Antiterrorism and 
Effective Death Penalty Act of 1996, Pub. L. 104-132 (1996); Illegal 
Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-
208, Div. C (1996).

 TABLE 1.--REMOVALS OF CRIMINAL ALIENS AND NON-CRIMINAL ALIENS, 2001 TO
                                  2010
------------------------------------------------------------------------
                                                                Percent
         Fiscal Year              Criminal      Non-Criminal    Criminal
------------------------------------------------------------------------
2001.........................          73,298         115,728         39
2002.........................          73,429          91,739         44
2003.........................          83,731         127,367         40
2004.........................          92,380         148,285         38
2005.........................          92,221         154,210         37
2006.........................          98,490         182,484         35
2007.........................         102,394         216,988         32
2008.........................         105,266         254,529         29
2009.........................         131,840         263,325         33
2010.........................         168,532         218,710         44
------------------------------------------------------------------------
Source: DHS Office of Immigration Statistics Yearbook, 2010, Table 38.

    The number of criminal aliens who have been removed has risen 
sharply in recent years. According to the DHS Office of Immigration 
Statistics presented in Table 1, the number of criminal aliens removed 
from the United States has gone from 73,298 in 2001 to 168,532 in 2010. 
These numbers constitute a 138% increase in the removal of criminal 
aliens over the past decade. Criminal aliens made up 44% of all 
removals in 2010, the largest portion of removals since 2002.
    Since its enactment in 1952, the Immigration and Nationality Act 
has given the Attorney General and more recently the Secretary of 
Homeland Security prosecutorial discretion to exercise the power to 
remove foreign nationals. In 1959, a major textbook of immigration law 
wrote, ``Congress traditionally has entrusted the enforcement of its 
deportation policies to executive officers and this arrangement has 
been approved by the courts.\29\ Generally, prosecutorial discretion is 
the authority that an enforcement agency has in deciding whether to 
enforce or not enforce the law against someone. In the immigration 
context, prosecutorial discretion exists across a range of decisions 
that include: Prioritizing certain types of investigations; deciding 
whom to stop, question, and arrest; detaining an alien; issuing a 
notice to appear (NTA); granting deferred action; agreeing to let the 
alien depart voluntarily; and executing a removal order.
---------------------------------------------------------------------------
    \29\ Charles Gordon and Harry N. Rosenfield, Immigration Law and 
Procedure, Albany, New York: Banks and Company, 1959, p. 406.
---------------------------------------------------------------------------
    As early as 1975, the former Immigration and Naturalization Service 
(INS) issued guidance on a specific form of prosecutorial discretion 
known as deferred action, which cited ``appealing humanitarian 
factors.'' The INS Operating Instructions said that consideration 
should be given to advanced or tender age, lengthy presence in the 
United States, physical or mental conditions requiring care or 
treatment in the United Sates, and the effect of deportation on the 
family members in the United States. On the other hand, those INS 
Operating Instructions made clear that criminal, immoral, or subversive 
conduct or affiliations should also be weighed in denying deferred 
action.\30\ It is especially important to note that not all 
prosecutorial discretion decisions to halt removal proceedings result 
in a grant of deferred action to the foreign national.
---------------------------------------------------------------------------
    \30\ Shoba Sivaprasad Wadhia, ``The Role of Prosecutorial 
Discretion in Immigration Law,'' Connecticut Public Interest Law 
Journal, Spring 2010.
---------------------------------------------------------------------------
    In an October 24, 2005 memorandum, then-ICE Principal Legal Advisor 
William Howard cited several policy factors on needs to exercise 
prosecutorial discretion. One factor focused on institutional changes, 
as he wrote,

``Gone are the days when INS district counsels . . . could simply walk 
down the hall to an INS district director, immigrant agent, 
adjudicator, or Border Patrol officer to obtain the client's permission 
to proceed . . . Now the NTA-issuing clients might be in different 
agencies, in different buildings, and in different cities from our 
own.''

    Another issue Howard raised was resources, as he pointed out that 
the Office of Principal Legal Advisor (OPLA ) was ``handling about 
300,000 cases in the immigration courts, 42,000 appeals before the 
Board of Immigration Appeals (BIA or Board) and 12,000 motions to re-
open each year.'' He further stated:

``Since 2001, Federal immigration court cases have tripled. That year 
there were 5,435 Federal court cases. Four years later, in fiscal year 
2004, that number had risen to 14,699 Federal court cases. Fiscal year 
2005 Federal court immigration cases will approximate 15,000.''\31\
---------------------------------------------------------------------------
    \31\ William J. Howard, Principal Legal Advisor, U.S. Immigration 
and Customs Enforcement, Prosecutorial Discretion, memorandum to all 
Office of the Principal Legal Advisor Chief Counsel, October 24, 2005.

    Howard offered examples of the types of cases to consider for 
prosecutorial discretion, such as someone who had a clearly approvable 
petition to adjust to legal permanent resident status, someone who was 
an immediate relative of military personnel, or someone for whom 
sympathetic humanitarian circumstances ``cry for an exercise of 
prosecutorial discretion.''\32\
---------------------------------------------------------------------------
    \32\ William J. Howard, Principal Legal Advisor, U.S. Immigration 
and Customs Enforcement, Prosecutorial Discretion, memorandum to all 
Office of the Principal Legal Advisor Chief Counsel, October 24, 2005.
---------------------------------------------------------------------------
    In November 2007, then-DHS Assistant Secretary Julie L. Myers 
issued a memorandum in which she clarified that the replacement of the 
``catch and release'' procedure with the ``catch and return'' policy 
for apprehended aliens (i.e., a zero-tolerance policy for all aliens 
apprehended at the border) did not ``diminish the responsibility of ICE 
agents and officers to use discretion in identifying and responding to 
meritorious health-related cases and caregiver issues.'' Myers 
referenced and attached a November 7, 2000, memorandum entitled 
``Exercising Prosecutorial Discretion,'' which was written by former 
INS Commissioner Doris Meissner in 2000.

``Like all law enforcement agencies, the INS has finite resources, and 
it is not possible to investigate and prosecute all immigration 
violations. The INS historically has responded to this limitation by 
setting priorities in order to achieve a variety of goals. These goals 
include protecting public safety, promoting the integrity of the legal 
immigration system, and deterring violations of the immigration law. It 
is an appropriate exercise of prosecutorial discretion to give priority 
to investigating, charging, and prosecuting those immigration 
violations that will have the greatest impact on achieving these 
goals.''

    Meissner further stated that prosecutorial discretion should not 
become ``an invitation to violate or ignore the law.'' She concluded by 
citing the ``substantial Federal interest'' principle governing the 
conduct of U.S. Attorneys when determining whether to pursue criminal 
charges in a particular instance, and claimed that this principle was 
pertinent to immigration removal decisions as well. According to the 
memorandum, immigration enforcement officers ``must place particular 
emphasis on the element of substantiality. How important is the Federal 
interest in the case, as compared to other cases and priorities?''\33\
---------------------------------------------------------------------------
    \33\ Doris Meissner, Commissioner of the Immigration and 
Naturalization Service, Exercising Prosecutorial Discretion, memorandum 
to regional directors, district directors, chief patrol agents, and the 
regional and district counsels, November 7, 2000.
---------------------------------------------------------------------------
    The backdrop of the Meissner, Howard, and Myers memoranda provide 
historical context for the recent memoranda on prosecutorial discretion 
written by ICE Director John Morton. In March 2011, Morton published 
agency guidelines that define a three-tiered priority scheme that 
applies to all ICE programs and enforcement activities related to civil 
immigration enforcement.\34\ Under these guidelines, ICE's top three 
civil immigration enforcement priorities are to: (1) Apprehend and 
remove aliens who pose a danger to National security or a risk to 
public safety, (2) apprehend and remove recent illegal entrants,\35\ 
and (3) apprehend aliens who are fugitives or otherwise obstruct 
immigration controls.
---------------------------------------------------------------------------
    \34\ ICE's mission includes the criminal and civil enforcement of 
Federal laws governing border control, customs, trade, and immigration; 
see ICE, ``ICE Overview: Mission,'' http://www.ice.gov/about/overview/. 
Laws governing the detention and removal of unauthorized aliens 
generally fall under ICE's civil enforcement authority, while laws 
governing the prosecution of crimes, including immigration-related 
crimes, fall under ICE's criminal enforcement authority. Also see 
Hiroshi Motomura, ``The Discretion That Matters: Federal Immigration 
Enforcement, State and Local Arrests, and the Civil-Criminal Line,'' 
UCLA Law Review, vol. 58, no. 6 (August 2011), pp. 1819-1858.
    \35\ The memorandum does not define ``recent illegal entrants.'' 
DHS regulations permit immigration officers to summarily exclude an 
alien present in the United States for less than 2 years unless the 
alien expresses an intent to apply for asylum or has a fear of 
persecution or torture; and DHS policy is to pursue expedited removal 
proceedings against aliens who are determined to be inadmissible 
because they lack proper documents, are present in the United States 
without having been admitted or paroled following inspection by an 
immigration officer at a designated port of entry, are encountered by 
an immigration officer within 100 miles of the U.S. border, and have 
not established to the satisfaction of an immigration officer that they 
have been physically present in the United States for over 14 days.
---------------------------------------------------------------------------
    In his June 17, 2011 memorandum, Morton spells out 18 factors that 
are among those that should be considered in weighing prosecutorial 
discretion. The factors included those that might halt removal 
proceedings, such as whether the person's immediate relative was 
serving in the military, whether the person was a caretaker of a person 
with physical or mental disabilities, or whether the person had strong 
ties to the community. The factors Morton listed also included those 
that might prioritize a removal proceeding, such as whether the person 
had a criminal history, whether the person poses a National security or 
public safety risk, whether the person recently arrived in the United 
States and how the person entered.

``This list is not exhaustive and no one factor is determinative. ICE 
officers, agents and attorneys should always consider prosecutorial 
discretion on a case-by-case basis. The decisions should be based on 
the totality of the circumstances, with the goal of conforming to ICE's 
enforcement priorities.''

    The Morton memoranda would halt removal proceedings on those 
foreign nationals that are not prioritized for removal.\36\
---------------------------------------------------------------------------
    \36\ John Morton, Director of Immigration and Customs Enforcement, 
Exercising Prosecutorial Discretion Consistent with the Civil 
Immigration Enforcement Priorities of the Agency for Apprehension, 
Detention, and Removal of Aliens, memorandum to field office directors, 
special agents in charge, and chief counsels, June 17, 2011.
---------------------------------------------------------------------------
    It is also useful to point out what the Morton memoranda do not do. 
They do not:
   give an unauthorized alien a legal immigration status;
   entitle an alien to employment authorization;
   alter the target on the number of aliens to be removed;
   count as time toward cancellation of removal; or
   prevent re-opening a removal case at later date.
    It is possible that the guidance of the memoranda, along with the 
procedures described in a subsequent letter Secretary Janet Napolitano 
wrote August 18, 2011, might provide a system or structure that would 
lead to greater consistency in the use of prosecutorial discretion. The 
interagency working group that Secretary Napolitano is establishing 
with the Department of Justice is charged with reviewing (on a case-by-
case basis) the files of persons currently in removal proceedings and 
issuing guidance on the appropriate consideration necessary to meet the 
enforcement priorities.\37\ The Task Force on Secure Communities 
recently recommended that DHS ensure that its personnel exercise 
prosecutorial discretion systematically.\38\ Whether this interagency 
working group will provide such a structure to do so remains to be 
seen.
---------------------------------------------------------------------------
    \37\ The Honorable Secretary Janet Napolitano, letter to the 
Honorable Senator Dick Durbin, August 18, 2011.
    \38\ Homeland Security Advisory Council, Task Force on Secure 
Communities Findings and Recommendations, September, 2011.
---------------------------------------------------------------------------
    The relevance of these memoranda on prosecutorial discretion may be 
viewed through the lens of a changing environment. The sheer size of 
the unauthorized population has grown substantially, despite a recent 
drop in both the unauthorized resident alien population and the 
apprehensions of illegal aliens. State and local governments are 
playing an increasing role in enforcing immigration law.\39\ As a 
result of Congressionally-mandated programs as well as technological 
advances, there have been dramatic improvements in the identification 
of removable aliens. These dynamics serve to expand the pool of 
removable aliens at a time when the financial resources of the Federal 
Government are especially pressed.
---------------------------------------------------------------------------
    \39\ CRS Report R41221, State Efforts to Deter Unauthorized Aliens: 
Legal Analysis of Arizona's S.B. 1070, by Kate M. Manuel, Michael John 
Garcia, and Larry M. Eig.
---------------------------------------------------------------------------
    This concludes my formal testimony, and I look forward to your 
questions.

    Mrs. Miller. Thank you very much, Dr. Wasem.
    I appreciate the testimony of all of our witnesses today, 
and I know there has been some consternation about the title of 
our hearing, and I would say this, as I have listened to all of 
your testimony: I don't think anybody disagrees with the 
concept, certainly, of removing criminal aliens from the United 
States. We are all very, very much in support of that.
    I think the problem that many of us have as we categorize 
this as administrative amnesty is allowing all others who have 
not actually committed a crime not to--I mean, any other crime 
other than entering the country illegally, which is a crime, 
obviously, that there would be no efforts, really, because of 
resources, as I am understanding it, to deport them, or remove 
them, or what have you.
    I would just mention, first of all, in regards to the 
dictionary's definition of amnesty, whether or not this is 
amnesty when you have--if you are going to deport 400,000 and 
leave the other whatever is left out of 11-12 million or more 
illegals here, ``the act of any authority, such as government, 
by which pardon is granted to a large group of individuals; the 
excusing of an offense without enacting a penalty; a release 
from the legal penalties of an offense.''
    I believe that that is the definition of what the 
administration is doing here in regards to administrative 
amnesty, and there has been a huge outcry around the country, 
of course, about the administration's policy in regards to 
this.
    I would also note, and I am sure we are going to get into 
this today as we question, whether or not the resources that 
you have are adequate. I understand, believe me, in strict 
budgetary constraints that we all have, of what the financial 
condition of the country is. But it is for the agencies to tell 
the Congress what kind of resources are actually necessary, and 
it is for us to prioritize when we do our appropriations 
process. Just say you don't have enough resources, we need to 
know what kind of resources are necessary, and that is one of 
the things this committee has been trying to get at, certainly 
this year, of what kind of resources actually are necessary, 
because it is a Constitutional responsibility of the Congress 
to secure our borders.
    I believe that the American people--the majority of the 
American people--have demonstrated over and over that they have 
the political will to secure our borders, and it is for the 
Congress to work together with the agencies, I believe, to make 
sure that we can do the very best job that we can to secure our 
borders.
    Talking about prioritizing, I know that there have been 
some comments made about not putting enough in the budget for 
this. I would just mention--I have got the numbers here for the 
fiscal year 2012 budget--in regard to ICE's removal operations, 
the House-passed appropriation bill is in conflict with--which 
was mentioned a little bit earlier here, actually mirrored the 
President's request in all by categories.
    Actually, for custody operations, the House plussed-up by 
almost $27 million, which was for 600 additional detention 
beds, and then we also plussed-up the Secure Communities by 
another $10 million. So I think we are putting our money where 
our mouth is in regards to prioritizing for border security.
    Again, I would say, if we are only going to remove those 
who have actually committed a crime, you know, we think about 
9/11, for instance. That is why this committee even came into 
existence, as a reaction to 9/11.
    Four of the 9/11 hijackers were here on extended--or, 
excuse me, overstayed visas, but yet, they had no criminal 
background at all; they had never done anything other than 
overstay their visa, and so they were here illegally, although 
they hadn't gone out and assaulted somebody on the street 
corner. I think that leads us to why we are concerned about 
this administrative amnesty, how we can be proactive as a 
Nation; reactive, after something happens.
    I would also point out just the cost of illegals on States 
and local governments, was mentioned, I think, by the doctor, 
about the States and the localities are picking--the 
municipalities are picking up so much of the expense. I have 
seen some numbers as high as, you know, $10 billion to $15 
billion of additional cost that the States and local 
governments are absorbing because the Federal Government is 
really not doing the jobs that we should do as adequately as we 
can do.
    So, in regards to this particular policy, I guess my 
question for both the chief and Mr. Kibble, were your two 
agencies involved in determining that this would be the new 
policy, and do you completely support it? Do you have any 
consternation with it that you may be willing to talk about on 
the record, or--were you involved with this policy? Is this 
something that you think is the best path forward in securing 
our borders?
    Mr. Kibble. Chairwoman Miller, as in policy formulation in 
other areas, this was not developed in isolation within ICE, 
speaking for ICE. It was a collaborative process including the 
Department of Homeland Security and the White House, as well.
    There were a couple--if I could just address a couple of 
the points you had mentioned before, I do think it is important 
to clarify that the prioritization does not--is not limited to 
just criminal aliens. We are looking to promote public safety, 
border security, and the integrity of the immigration system.
    So if you look at our annual data, roughly 50 percent of it 
are criminal alien removals, but then by definition, about half 
of them are not. We are looking at repeat immigration 
violators. We are targeting recent border entrants.
    With respect to National security threats, we are also--
have programs that we have established in response to 9/11 to 
address those concerns. So it really is taking these 
resources--these 400,000 removals that we have--and trying to 
maximize and use each and every one of them to the maximum 
extent we can to promote public safety.
    To your question in terms of whether I agree with it, I 
think every law enforcement agency around the world exercises 
discretion, because there is a recognition we have a finite 
amount of resources and we all want to do the maximum we can to 
promote a public good. So I do agree with this idea of smartly 
and effectively approaching immigration enforcement, and again, 
making every one, to the maximum extent we can, making every 
one of those 400,000 removals count.
    Mrs. Miller. So your testimony is that ICE, as an agency, 
was involved with determining this particular path forward as 
an administrative policy and that you are completely on board 
with it?
    Mr. Kibble. That is correct, ma'am. It was done in 
collaboration with the Department of Homeland Security and the 
White House, as well. With respect to the--again, I am a strong 
supporter of exercising discretion and operating in a 
prioritized way.
    Mrs. Miller. Chief.
    Chief Fisher. Chairwoman, any time that you can take a 
look--and again, from the Border Patrol, it is certainly CBP's 
perspective, what this does is this allows us and gives us 
additional detention spaces. When you look at prioritizing 
those cases--and by the way, when you look at the prosecutorial 
discretion memo that Director Morton signed, certainly we 
continue to work with ICE and to find out what, if any, changes 
that we are looking at between the ports of entry, and I will 
tell you one: As we are working through this right now, it is 
going to allow us more detention capability for those entrants 
that we apprehend between the ports of entry, and from a 
prioritized enforcement standpoint we do support that.
    Mrs. Miller. Just a question for Dr. Wasem. Last Wednesday 
the President made some press because he was talking to an 
audience about this particular policy and he said that the 
statistics are a little deceptive, I think in order to play 
down the significance of the number of removals, perhaps, under 
his administration. I am not sure why he said the statistics 
are a little deceptive, but as a statistician, or as you have 
gone through the research, et cetera, do you think the 
statistics are a little deceptive?
    I guess I would also ask you, in regards to amnesty that, 
for instance, as we mentioned, back in 1986, and you saw this 
huge spike, do you think that this policy will--that we will 
look at another spike as a result of this?
    Ms. Wasem. Let me speak to your first--your second question 
first, and that is, any time there is a magnet effect, and when 
we have seen it in history, it is hard to measure that in 
contrast to the ability to measure apprehensions, or the 
unemployment rate, or other economic and demographic data. So 
it has always been one of the unmeasurables, that it is 
difficult to sort out the extent to which it has made a 
difference. Often, when we see something that we could argue is 
a magnet effect, it is coincidental with other factors and 
forces at play, whether they are economic, or factors in the 
sending countries, like devaluation of the peso, or natural 
disasters.
    So while most social scientists would recognize that there 
can be magnet effects, a lot of it hinges on what is going on 
in the sending countries and how aware they are, and how much 
they understand the sending policy. Sometimes it could be a 
misunderstanding of a policy that could create this. So it is 
not something that can be empirically demonstrated.
    I must confess that I did not hear the President's speech 
that you are referring to, so I don't feel able to respond to 
that question, if you----
    Mrs. Miller. Okay. I understand that. That is fine.
    At this time, the Chairwoman will recognize the Ranking 
Member, Mr. Cuellar.
    Mr. Cuellar. First of all, let me just, again, refer to 
this letter of November 4, 1999, that is signed by, again, 
Henry Hyde, Lamar Smith, a series of very prominent 
Republicans, David Dreier, and other folks, including Nathan 
Deal, which, by the way, has the toughest immigration law. He 
also signed this letter.
    It goes on, and they are asking for prosecutorial 
discretion. In fact, there they say the principle of 
prosecutorial discretion is well established, and then they go 
on why the need for prosecutorial discretion.
    In fact, if you look at ICE power--authority--comes in 
under the Homeland Security Act of 2002, where they gave you 
the exclusive authority to prosecute all removal proceedings. 
So you got that from the 2002 law.
    Also, the Supreme Court has recognized that the exercise of 
discretion is generally not subject to questioning or review, 
and agents--agencies' decision not to prosecute or enforce, 
whether it is civil or criminal, is committed to the agencies' 
absolute--and I emphasize, absolute discretion. This is the 
Heckler v. Chaney case--U.S. Supreme Court's 1985 case that we 
have.
    Also, as Ranking Member Thompson mentioned a few minutes 
ago, when we passed the homeland security bill--the 
appropriation bill--specifically, there was $1.6 million that 
was provided to identify aliens convicted of crime who may be 
deportable and who may pose a serious risk of public safety or 
National security issues. They didn't say everybody; they just 
said that is the work.
    In fact, it goes on, Members--and we all voted for this, or 
at least the ones that voted for it; I think I voted against 
it--that the Secretary shall, ``prioritize the identification 
and removal of aliens of--convicted of a crime by severity of 
that crime.'' So you all, everybody voted--or at least the ones 
that voted for this, you voted for this particular bill. So I 
think to come back now and say, there is no--you know, we 
shouldn't be doing this, we should have all voted no on that 
homeland security and moved on at that time.
    Mr. Kibble, let me ask you, $1.6--what is your cost--
billion dollars, let us assume that bill would have passed, you 
would follow the appropriation bill, right, to follow and say, 
``Go after the more--aliens with criminal records,'' is that 
correct?
    Use your mike, yes.
    Mr. Kibble. I am sorry, sir.
    We have been operating under the 2010 appropriations 
language that directs us to expend $1.5 billion, focused on the 
identification, apprehension, and removal of criminal aliens. 
Just to put that in perspective, the enforcement and removal 
operations component within ICE is the principal agency that 
affects civil immigration enforcement. That represents, you 
know, better than half of the resources that have been devoted 
to immigration enforcement--that component----
    Mr. Cuellar. How much does it cost to remove one alien--
identify--ICE?
    Mr. Kibble. For ICE resources it costs roughly $10,000. We 
have brought that down----
    Mr. Cuellar. Right. $10,000, and let us assume that the 
appropriation bill that got passed this year, this one--I know 
it is still in the Senate--$1.6 billion--it went up from $1.5 
billion to $1.6--taken it costs you $10,000, how many aliens 
could you--criminal aliens could you deport using those 
numbers, roughly?
    Mr. Kibble. Roughly, we are still at about an overall 
population of about 400,000 removals, and we anticipate that 
within those resources with--being able to maintain detention 
space at a roughly 33,400 beds, that we will be able to 
continue to increase the criminal aliens removed within that 
overall population of roughly 400,000.
    Sir, just to kind of make a point, the record-breaking 
immigration enforcement we have done over several years--and I 
am proud of the folks that have done this--this has continued 
into fiscal year 2011. We are continuing to break records 
moving in excess of 200,000 criminal aliens in this just most 
recent fiscal year concluded.
    Mr. Cuellar. The next three--I mean, if you continue for 
your 3 years that would match the 8 years that the prior 
administration had in removing criminals and you keep going at 
the pace that you are going?
    Mr. Kibble. It has been several years, now, of record-
breaking immigration enforcement.
    Mr. Cuellar. Okay.
    I have a question for Ms. Wasem. You did some research on 
amnesty. When was the only time we really have had amnesty in 
the United States that you are aware of?
    Ms. Wasem. Well, the major legalization legislation passed 
in 1986. There are a variety of other smaller----
    Mr. Cuellar. The President was----
    Ms. Wasem. That was President Ronald Reagan.
    Mr. Cuellar. Okay. All right.
    I have no further questions.
    Mrs. Miller. Thank you very much.
    Just before I recognize the gentleman from Mississippi, I 
hadn't seen this letter that my Ranking Member keeps referring 
to, and we are going to make sure all the Members of the 
committee do get a copy of this. But I would just note one 
thing on the letter that is being referenced: We are talking 
about removing criminal aliens, but as you read the letter it 
is talking, actually, about removal proceedings against legal 
permanent residents--legal permanent residents, not criminal 
aliens. I would just mention that.
    At this time I would recognize the gentleman from 
Mississippi, Mr. Thompson.
    Mr. Thompson. Thank you very much.
    Mr. Kibble, you indicated that it costs ICE about $10,000 
per alien to be deported. It has been factored in that the 
overall cost to the Federal Government is about $23,000 per 
alien.
    I put on the map--on the screen--that if there are 11 
million unauthorized aliens, and if it costs $23,000 per alien, 
that will cost us to eradicate the problem about $257.6 
billion. For the sake of comparison, what is ICE's total annual 
budget?
    Slightly less than $6 billion.
    [The information follows:]
    

    
    Mr. Kibble. Yes, sir.
    Mr. Thompson. Okay. Given the reality of slightly less than 
$6 billion coupled with the potential to solve the problem, so 
what is your driving factor in deciding to exercise 
prosecutorial discretion?
    Mr. Kibble. The key thing, sir, is to, again, use the 
400,000 or so removals that we are resourced to complete in a 
given year and to use those in a way that is going to remove 
public safety threats from our communities, promote border 
security through partnership with Customs and Border Protection 
in targeting recent border violators, and also responding and 
restoring to the integrity of the immigration system, for those 
folks that are immigration fugitives, that are defying an order 
of removal or that are gaming the system through fraud.
    So using those resources--those finite resources that are 
available to us, in this past fiscal year 90 percent of our 
overall removals fell within those priorities--90 percent. 
Roughly 54 percent of that 400,000 were criminal alien 
removals. But again, our priorities extend broader than just 
criminal aliens.
    Mr. Thompson. Chief, in the application of ICE's 
prosecutorial discretion, has that harmed or helped CBP's 
ability to perform its stated responsibilities?
    Chief Fisher. Congressman, it has helped us because it has 
allowed additional beds that would--we would require under a 
consequence delivery system, so it has helped.
    Mr. Thompson. So your testimony is that ICE's use of 
prosecutorial discretion has allowed you to have more beds 
available to do your job?
    Chief Fisher. Yes, Congressman. In those areas where that 
has been implemented--and again, because this is an enforcement 
process, any time that we can, subsequent to our arrests--and 
by the way, just for clarification, when we are talking about 
prosecutorial discretion, Border Patrol agents are still and 
will continue to arrest everybody that enters this country 
illegally. There is no discretion there. I just want to make 
sure that we understand that correctly.
    Subsequent to the arrest, when we look at final disposition 
following the consequence delivery system, to the extent that 
we have additional bed spaces either for the consequence 
delivery system or for final disposition, that helps out our 
ability to control the border, and that is our intent.
    Mr. Thompson. Dr. Wasem, you have reviewed the history of 
prosecutorial discretion. Have you seen the application of this 
both during Democratic and Republican administrations? If so, 
have you found the application to be different?
    Ms. Wasem. In the memorandum and guidance that I have 
reviewed from 1975 forward, certain themes are common 
throughout: The humanitarian concerns, the resource issues, and 
other enforcement priorities. The main thing that struck me 
about the latest set of memorandum is the specificity, in that 
it lists 18 factors. Now, those factors fit in the broader 
categories that the earlier memos mentioned, but it is--the 
level of specificity is a little different.
    Also, the August letter that Secretary Napolitano sent to 
Senator Durbin proposed as a structure that would be reviewing 
the process. That actually reminded me a bit, as a response to 
something that I referenced in my written testimony, that 
William Howard wrote about in his 2005 memo and how things had 
changed organizationally from the days when it was Immigration 
and Naturalization Service and everybody was in the same agency 
to one of the issues they were facing in 2005, where people 
were in different agencies and different parts of the country.
    So whether or not the Napolitano letter is really going 
back to what it was like under one agency by putting something 
at the Departmental level or whether it is going to take us in 
new directions really remains to be seen. It is too soon to 
tell.
    Mr. Thompson. Thank you very much.
    I yield back, Madam Chairwoman.
    Mrs. Miller. The Chairwoman now recognizes the gentleman 
from Texas, Mr. McCaul.
    Mr. McCaul. Thank you, Madam Chairwoman.
    Let me first just commend the ICE agents who every day put 
their lives on the line, and particularly those serving under 
very dangerous conditions in Mexico.
    To the Ranking Member, I agree, we need more resources. I 
think, you know, we talk to our friend, Judge Ricardo Hinojosa, 
and he will tell you that not only do we need more agents, we 
need more judges and prosecutors.
    As a former Federal prosecutor, I understand the concept of 
prosecutorial discretion. It is nothing new. Prosecutors 
exercise it every day, and they have to. You have to look at 
violent crime versus non-violent crime. So I understand all 
that.
    What I was confused about is when this policy came out and 
it caused some controversy--I think a lot of my constituents 
view it as an amnesty program; I think most of my constituents 
do not agree with amnesty--but what was confusing was the New 
York Times reports that administration officials said, in 
commenting on this new policy, that those who qualify for 
relief can apply for admission to work in the United States and 
will probably receive it.
    So call this whatever you want, but when administration 
officials say that through the New York Times, it appears to me 
that the administration is saying, ``Look, if you are a 
noncriminal alien we are just going to allow you to stay in the 
United States, and beyond that, we will let you apply for work 
permits.'' So it has the appearance of the administration in a 
back-door way is pushing a guest worker or amnesty program, 
call it what you want, but allowing illegal aliens to stay in 
the country and apply for work permits.
    So, Mr. Kibble, I asked, in a prior hearing, a Homeland 
Security official this very question, and he couldn't answer 
it. Can you tell me if this is the policy of this 
administration?
    Mr. Kibble. Sir, as you acknowledged, the discretion is 
something that goes back decades. With respect to the 
particular application in this group, the working group that 
has been established, including both senior professionals from 
both the Department of Homeland Security and the Department of 
Justice are working on criteria to go through what amounts to 
roughly 300,000 active cases that are on the immigration court 
docket.
    As they look at--as they go through that they are going to 
be looking to exercise discretion, and we anticipate that it 
will be very narrow. We anticipate that it----
    Mr. McCaul. My time is a little--and I understand that. I 
understand prioritizing the criminal cases. As the Ranking 
Member said, we need to be careful about our messaging.
    Is it the policy of this administration to allow 
noncriminal aliens to stay in this country and apply for work 
permits?
    Mr. Kibble. No. That doesn't appropriately characterize the 
policy, sir. In fact, even once--through this process, if these 
cases--some of these cases that qualify for discretion, where 
we choose to exercise discretion are set aside, first off, it 
is done on a case-by-case basis--a case-by-case individual----
    Mr. McCaul. So those that you choose not to prosecute, are 
they allowed to stay in the country and apply for work permits?
    Mr. Kibble. They can certainly apply for work 
authorization, but there is no automatic grant of work 
authorization.
    Mr. McCaul. But it is the policy of this administration 
that they can stay in the country and possibly apply for work 
permits?
    Mr. Kibble. The policy focuses more on unclogging the 
immigration court docket so that we can accelerate our high-
priority----
    Mr. McCaul. You know, I get that. I understand all that. 
But it is the message that we are going to allow the non-
criminal alien to stay in the country and apply for work 
permits. I think that is the core issue with this new policy.
    I still haven't got a very clear answer to that. You know, 
if Mohamed Atta, the leader of the hijackers, who had a non-
criminal record--didn't have a criminal record, had overstayed 
his visa, if he was pulled over in a traffic stop would he be 
let go and allowed to stay in the country and apply for a work 
permit?
    Mr. Kibble. No, sir, because our priorities extend to non-
criminal immigration violators as well, so those presenting 
National security threats--again, if you just look at our 
removal numbers, roughly half of them are not considered 
criminal aliens----
    Mr. McCaul. So what would be the threshold for a--okay, you 
have got non-criminal and criminal. What is the threshold, 
then--he gets pulled over for a traffic stop. Is that enough to 
deport him? I don't think it is, under your policy.
    Mr. Kibble. Sir, I can't speak to that particular--I mean, 
every officer has been empowered with the ability to look at 
the merits of that particular case and exercise discretion at 
any point in the continuum. What we seek to do is to exercise 
it earlier, but I will tell you that our officers are very 
concerned about public safety, and in this case you pose a 
National security example. If we don't know what we have we may 
choose to move forward if we establish that the alien is 
potentially removable, arrest them, look at biometrics, 
continue to develop information and process that person for 
removal.
    Mr. McCaul. Let me just close by saying, you know, I am 
concerned about this from a National security standpoint, as 
well. I hope you factor that in in these cases.
    Last, again, I don't know who these administration 
officials were that said this, and I don't--I haven't got a 
clear answer whether this--that is the policy of this 
administration, but I think that kind of statement from this 
administration really calls into question this policy. 
Prosecutorial discretion is nothing new, as you and I have 
talked about, but to say that they can stay in the country and 
apply for work permits, that goes a whole step further, and 
actually goes around, I think, the will of the Congress.
    So with that, Madam Chairwoman, I yield back.
    Mrs. Miller. The Chairwoman now recognizes the gentleman 
from Michigan, Mr. Clarke.
    Oops. Excuse me. I am sorry.
    The Chairwoman now recognizes the gentleman from 
Mississippi, Mr. Thompson.
    Did you have your time?
    Mr. Thompson. Well, do you want me to go again?
    Mrs. Miller. No, okay, it is Mr. Clarke. I am sorry.
    You looked up----
    Mr. Clarke.
    Mr. Clarke. Yes, thank you, Madam Chairwoman. I yield my 
time from the gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. I think the gentleman yields his order 
rather than his time, Madam Chairwoman.
    Mrs. Miller. Gentlelady from Texas is recognized.
    Ms. Jackson Lee. I don't want Mr. Clarke to give up his 
time.
    But let me thank you very, very much for your presence here 
today. I am going to call each and every one of you a patriot. 
Thank you so very much for your service to this Nation.
    I have worked with all of you. I know your work, Doctor, 
and certainly have worked with Customs and Border Patrol and 
the Border Patrol separately, and, of course, ICE, over many, 
many years.
    Chief Fisher, I just want to ask you, do you have the 
necessary resources? I think we were reading an article about 
the efforts on the Southern Border; I know our Chairwoman comes 
from the Northern Border and work is necessary there, but it is 
intense work, is it not, Chief?
    Chief Fisher. Yes, it is.
    Ms. Jackson Lee. Are you further enhanced--it is not a 
perfect system, but are you further enhanced--I introduced a 
major amendment in about the mid--either 2000s--I am trying to 
remember when I have been on this committee, so I think it was 
in the mid- to early 2000s where we talked about helicopters, 
night goggles, computers, new equipment. You have received some 
of that, is that not correct?
    Chief Fisher. Yes, ma'am. That is----
    Ms. Jackson Lee. Does that enhance your ability to do the 
work--the night work--that is required when there was an 
intensity of individuals coming over? Does that enhance your 
work?
    Chief Fisher. Yes, ma'am, it has.
    Ms. Jackson Lee. Do you see a decided decline, partly, 
maybe, because of our economy--not saying a cessation of those 
coming, the kind of immigrants that have been coming for work 
that we have seen that have just been coming over either 
reunite with family or for work? Have you seen some of the 
impact of your work along with maybe the economy impacting 
those coming over?
    Chief Fisher. Yes, we have.
    Ms. Jackson Lee. But you see repeat offenders, I assume?
    Chief Fisher. Yes, we do.
    Ms. Jackson Lee. All right. Those repeat offenders, I 
think, are described as a felony now. I think the law, or the 
1996 laws describe those individuals as felons that keep coming 
back and forth. Is that----
    Chief Fisher. If, in fact, they have been formally removed 
on their--an earlier apprehension and they were formally 
removed, if we catch them a subsequent time and the U.S. 
attorney chooses to prosecute, that could be a felony, yes, 
ma'am.
    Ms. Jackson Lee. Could you use more resources, Chief?
    Chief Fisher. Certainly. But before we would say yes, we 
need more, and then the question is, well, what do you need, 
because of the infusion of resources, both in terms of 
personnel and in particular, technology, you know, one of the 
things that we are looking at now is two things in particular: 
No. 1, do we have the resources in the areas of highest risk? 
In other words, do we need to move some of those resources in 
areas where traditionally we didn't have the level of control 
which we do now?
    No. 2, how do we deploy those types of resources? You know, 
we look at the largest civilian air force, and the capabilities 
that CBP has, in particular, the field commanders within the 
Border Patrol, and, as you have mentioned, some of the 
technology, both in terms of the mobile surveillance systems, 
and the mobile surveillance capabilities, the unattended ground 
sensors, the fleers, all of those--the unmanned aerial 
surveillance systems that have come on within CBP--gives us a 
huge capability.
    Ms. Jackson Lee. Thank you, Chief, very much.
    Let me quickly, I appreciate the collaborative work between 
Chairwoman Miller and Ranking Member Cuellar, but we know that 
this is a ``get you'' hearing. This is an order that has come 
down from our leadership--the Republican leadership. It is to 
spend your time getting the President as we move toward 2012. 
Every committee has that responsibility, and this is another 
``get you.''
    My good friend from Texas, who I work with quite well, Mr. 
McCaul, has put on the record that we need more resources for 
our prosecutors and judges. He is absolutely right. The 
Southern district is overburdened with the number of 
immigration cases.
    But let me ask Mr. Kibble, who we have worked with, let me 
just put on the record very quickly that prosecutions for 
illegal reentry have jumped more than two-thirds since 2008. 
That is under the Obama administration. President Obama has 
already deported around 1.1 million immigrants--let me make it 
very clear--more than any President since Dwight D. Eisenhower.
    [The information follows:]
    

    
    Ms. Jackson Lee. Let me make that very clear: 1.1 million. 
Officials say the numbers will not decline, but at a time when 
the dynamics of a--immigrations are--goes on to say a lot of 
other things.
    Immigrations and Customs Enforcement spent $2.25 billion 
sending back 180,229 people. I think a lot of people would like 
that money to go for creating jobs.
    So, Mr. Kibble, let me just ask you, do you think that ICE 
is doing its job?
    Mr. Kibble. We are always looking for ways to improve and 
find more----
    Ms. Jackson Lee. Absolutely. Are you doing your job to the 
best of your ability now?
    Mr. Kibble. With the resources that are available we are 
breaking records in virtually every----
    Ms. Jackson Lee. Every single day. Would you use more 
resources under the mandate that is not an unintelligent 
mandate, which is to get rid of the criminal aliens? Would you 
do that if you had more money?
    Mr. Kibble. We could obviously do more with more, but we 
would still be operating with--in terms of priorities, because 
the violations so far outstrip the resources that are 
available.
    Ms. Jackson Lee. I just want to put this into the record, 
but I think this was utilized, it says $23,000 per alien, 11.2 
million unauthorized aliens, it would cost us $257.6 billion. 
Many of these are students and individuals who are here simply 
trying to access legalization.
    I further want to just comment, Madam Chairwoman, this is a 
letter that I signed that you mentioned that is on--I am not 
sure what your interpretation, but I will just say that this 
sentence clearly indicates that it was people writing to 
suggest, ``We write you because many people believe that you 
have the discretion to alleviate some of the hardships and we 
wish to solicit your views as to why you have been unwilling to 
exercise such authority in some of the cases that have 
occurred.''
    So, those of us who signed--Henry Hyde, now deceased, our 
esteemed Chairman of the Judiciary Committee, Barney Frank, 
Lamar Smith, my co-Ranking Member on the Immigration Committee, 
and Sheila Jackson Lee, and many others, were trying to say 
that you are wasting your monies on individuals that are just 
here versus getting the criminal aliens. That is what we wrote 
in 1999.
    I would yield back to the Chairwoman.
    Mrs. Miller. Thank the gentlelady.
    We all now have a copy of this letter that was written 12 
years ago, and I think we can all look at it and see what we 
see here. It says, removing criminal aliens, they brought that 
to the attention. In the second paragraph it says, ``However, 
removal proceedings against legal, permanent residents,'' and 
then they go on with the rest of the letter. So again, I wasn't 
here 12 years ago.
    But at this time--recognize the Ranking Member.
    Mr. Cuellar. Yes, if you don't mind, because I--let me 
clarify that letter.
    You know, first of all, they are talking about removals, 
they said in some cases. So they are talking about criminal 
aliens, but they said, but in some cases they may be legal, 
permanent residents who have had aggravated felonies. So they 
are even saying, let's go ahead and help these folks that have 
had felonies--felonies, felonies, felonies, felonies--and all 
this.
    Then they go on, you know, they have obtained jobs, they 
are self-sufficient, they have started families in the United 
States--by the way, this is a Republican saying this--so--and 
then they talk about--and this is a very important thing, is 
they goes on and I am--it goes on and they are saying, you 
know, there is widespread agreement that deportations were 
unfair and resulted in unjustifiable hardship. Not Democrats 
saying this, but Republicans.
    It goes on, we just ask why INS pursued removal in such 
cases when so many other more serious cases existed. Therefore, 
this is why they are asking a prioritization.
    Madam Chairwoman, just so everybody is clear about this 
letter, I would ask that--I would ask your permission and the 
committee's permission that I introduce this letter, dated 
November 4, 1999, into the record.*
---------------------------------------------------------------------------
    * The information has been submitted previously by Mr. Cuellar.
---------------------------------------------------------------------------
    Mrs. Miller. Absolutely, without objection----
    Voice. Would the gentleman yield?
    Mrs. Miller [continuing]. We are going to introduce it to 
the record because I think it is important that we--that 
everyone has an opportunity to read this--legal permanent 
residents.
    Voice. Would the gentleman yield?
    Mrs. Miller. At this time I am going to recognize--go on 
through our questions here, and we will have the second round 
if we need to.
    Voice. Okay.
    Mrs. Miller. I would recognize the gentleman from South 
Carolina, Mr. Duncan. We are recognizing in order of the 
Members who were present at the start of the hearing.
    Mr. Duncan. Okay. Thank you, Madam Chairwoman, and 
appreciate you having this particular hearing.
    I thank the witnesses for being here today for this very 
important topic.
    But as I sit here and I think, we should ask ourselves, why 
is this hearing on administrative amnesty so important, I want 
to applaud the Chairwoman for defining amnesty for us. I 
actually had looked it up on my iPad and was going to do that 
as well.
    But let me tell you, the folks that I represent in South 
Carolina fully recognize--fully recognize--what most Americans, 
I think, agree on, and that is that we have a serious illegal 
immigration problem in this country. We have heard today 
criminal versus noncriminal, but I scratch my head and think 
that are not all illegal immigrants who entered the sovereign 
Nation known as the United States of America not criminal in 
some aspect, because they have violated the sovereign laws of 
this Nation by entering this country through illegal means, or 
staying in this country beyond their visa, which is against the 
law?
    So at what point in time do we choose which laws we are 
going to enforce and which laws we are not going to enforce as 
a Nation? By us choosing not to enforce certain laws, does that 
not water down our legal system as a whole?
    Director Kibble, listening to the testimony and hearing Mr. 
McCaul ask you some questions about folks that are stopped with 
a traffic stop, and whether they are National security threats 
or other things, I wonder, President Obama's uncle was recently 
arrested on suspicion of driving under the influence, which was 
a crime. News reports indicate that he had a deportation order 
since 1992 but was never deported.
    I understand that Mr. Obama was freed from ICE recently 
under an order of supervision. If our deportation process is 
not robust enough to successfully deport someone with a 19-
year-old deportation order, why should Americans have any 
confidence that we can deport terrorists and criminals who pose 
a threat to public safety?
    Mr. Kibble. Sir, with respect to that particular case, DHS 
privacy rules limit what I can discuss on that. I know some of 
that was inappropriately and in an unauthorized way leaked to 
the media. That is a subject of a separate OIG investigation.
    However, there are some things I can confirm. He was 
referred to us by the local police. He had been entered into 
proceedings. As you indicated, he has been released and is 
under an order of supervision, and he is not being treated any 
differently than any other alien in similar circumstances as we 
continue to pursue the matter.
    But this is--I mean, the proceedings sometimes take an 
extended period of time to ultimately affect a successful 
removal.
    Mr. Duncan. I realize there are 12 to 20 illegal aliens in 
this country. That is a number that is thrown around. I believe 
we don't really know what the true number is.
    I know that it is very costly, as has been pointed out by 
the other side of this argument, that it would be very costly 
to round those up and send them home. I get that.
    But if we stop someone through normal law enforcement and 
we realize that they are here overstaying their visa, they are 
here illegally, they can't prove that they are here on a legal 
status, we have got that person. Why are we choosing not to 
deport them?
    Mr. Kibble. Sir, again, I mean, depending on the 
circumstances of the case, different officers may make 
different decisions in terms of when and how to exercise 
discretion based on----
    Mr. Duncan. But these are the easy ones. These are on the 
ones we know. We are not having to round them up out of the 
shadows. We are not having to go to the employers and check the 
immigration status of every one of their employees.
    This is somebody we have, we stop, we realize that they are 
here illegally. It is the easy--it is the low-hanging fruit, so 
to speak. Why not deport these guys?
    Mr. Kibble. We do remove a number of those, sir. I mean, I 
indicated before--first off, we have not reduced immigration 
enforcement in any way. As I have indicated previously, we are 
removing more people than ever in the history of our agency. On 
top of that, while 50 or so percent are criminal aliens, we are 
removing other folks that fall within these other areas that we 
are concerned about, that include immigration fugitives, recent 
border violators, and even though I say 90 percent of our 
overall removals are in prioritized areas, there is also 10 
percent for folks that do come across our radar because we are 
not going to ignore the law.
    Mr. Duncan. I thank you.
    I will yield back the balance of my time.
    Mrs. Miller. Thank the gentleman.
    The Chairwoman now recognizes Mr. Rigell, from Virginia.
    Mr. Rigell. Thank you, Madam Chairwoman.
    I join my colleagues today in thanking----
    Mr. Thompson. Madam Chairwoman, I think according to the 
rules of the committee, Ms. Jackson Lee is next. Mr. Clarke 
yielded his time to her, but----
    Mrs. Miller. He actually yielded his order, not his time.
    Mr. Thompson. He said he yielded his time. I mean, 
everybody was clear on that.
    Mrs. Miller. I will ask the parliamentarian, since I want 
to exercise my discretion and make sure everyone who is here 
got a chance to ask.
    According to the parliamentarian, my interpretation is 
correct. I am just trying to make sure that everybody who was 
seated here on time is getting their opportunity to ask their 
question, and certainly other Members will have their 
opportunity on a second line of questioning here.
    Mr. Thompson. The only thing I am trying to get clarity on, 
Madam Chairwoman, is Mr. Clarke was clear in yielding his time. 
It was his time----
    Mrs. Miller. His order.
    Mr. Thompson. Right. He yielded his 5 minutes to Ms. 
Jackson Lee. It was not Ms. Jackson Lee's time. It is now her 
time, according to the order and rules of committee.
    Now, you are the Chairwoman----
    Mrs. Miller. Well, I will ask the parliamentarian again. 
Which do you agree?
    I have got to ask my attorney here.
    Ms. Jackson Lee corrected Mr. Clarke and said he was 
yielding his spot in the order. The Chairwoman is going to 
exercise what I think are the rules of the committee and make 
sure that everybody has an opportunity to ask questions.
    At this time, I would recognize Mr. Rigell, from Virginia.
    Mr. Rigell. Thank you, Madam Chairwoman.
    I join my colleagues today in thanking ICE and the Border 
Patrol for the brave work that is being done. I join 
Congresswoman Lee in just referring to you as patriots. I 
believe that is true. So thank you.
    You know, an essential part of leadership and management is 
the allocation of limited resources, so the idea that we are 
providing judgment in this area does not at all surprise me. In 
fact, I think it is a good thing.
    Having said that, I think that to develop--to define and 
announce a specific plan that really nails down exactly why we 
are going to really go after and who we are not, I think it 
either by design or default is an unwise policy, and I will 
tell you why. Let us consider a town, for example, that is 
having fiscal stress, and it causes a sharp decrease in the 
amount of money that is being given or allocated to the police 
department.
    I think it would be unwise for the chief of police to come 
out and to be very specific on exactly what laws are not going 
to be enforced. Maybe, ``Okay, we are not going to give anybody 
a ticket 15 miles or under on speeding,'' for example. You 
know, we are really making clear here, I think, what is a safe 
haven. Again, either by design or default, I don't think that 
is a wise plan.
    Mr. Kibble, in light of that, I would like to ask you, sir, 
if--for a person who is outside of our borders presently who 
has an understanding of this new policy--and it is a change in 
direction, indisputably--do you think that this new policy 
either increases or decreases or has no effect on his or her 
likelihood to enter the country--and we are assuming this is a 
person who does not have a criminal background and has no 
criminal intent?
    Mr. Kibble. Sir, I would say that, you know, since 2009 we 
have already been exercising discretion and we have not seen 
flows across the border, although I will defer to Chief Fisher 
in terms of what he has observed. In fact, we have seen 
declines.
    But speaking directly to your point, one of our priorities 
is recent border violators, and when we talk about recent we 
define that--we think of that in terms of years, not months. So 
I think that right there clearly sends a message that if you 
are crossing--if you are attempting to cross the border you are 
not getting a free pass. You are going to remain a priority for 
us for years.
    Mr. Rigell. With respect, Mr. Kibble--and I have learned in 
my short time in Congress, I really don't like interrupting 
people, but this clock ticks and you only have 5 minutes, and 
you really want to make sure the point is made. I am not asking 
for, you know, metrics here, or the fact that we are sending 
more back than ever before. Those facts are not in dispute, and 
I applaud that progress.
    I am asking you to get into the mind of a person 
contemplating coming over illegally. My specific question was--
and I think I covered the universe of alternatives--does it 
increase, decrease, or have no effect on that person's 
mindset--their thinking that they may be able to, ``get away 
with it,'' or be able to stay in our country illegally?
    Mr. Kibble. Sir, and that was the point I was trying to 
make, is that because we are making clear that we are targeting 
people that if they cross the border--if they are not currently 
in the United States and they cross the border there is going 
to be a period of years where they are still on our radar and 
they are still a priority for us to go after them and remove 
them.
    Mr. Rigell. I appreciate I think a genuine attempt, on your 
part, to answer the question. I am not sure it was really 
answered there.
    Chief Fisher, let me ask you the same question, if I may. 
Does it affect the mind of the person contemplating coming to 
this country? Or, let's make it even easier. Let's just say a 
person is in this country illegally. When they hear of this 
policy--they are nonviolent; they are not a threat to public 
safety--does it increase, decrease, or have no effect on their 
mindset that they are concerned that they are going to be 
detained and possibly deported?
    Chief Fisher. For those individuals that are contemplating 
coming into this country illegally today, tomorrow, or next 
week, I can tell you they will be arrested. No classes of 
individuals will not be amenable to the level of discretion 
that we are discussing today. They are recent entrants, and 
although we are doing it on a case-by-case basis, border 
security between the ports of entry we take very seriously.
    We look at discretion and we look at the application of 
prioritizing bed spaces and case loads, that is different than 
our mission within the Border Patrol, sir.
    Mr. Rigell. I would submit to you that the only answer to 
those questions is absolutely yes, it does decrease their 
concern about entering our company--our country or staying in 
our country illegally. For that reason I don't think it is a 
wise policy.
    Thank you.
    Mrs. Miller. The Chairwoman now recognizes the gentlelady 
from Texas.
    Ms. Jackson Lee. Thank you very much, Madam Chairwoman.
    Thank you to my colleagues for their kindness and their 
indulgence.
    Since I was one of the Members who was there at the time of 
the 1999 signing and want to give the interpretation that I 
think is appropriate to the letter that was submitted by my 
Ranking Member, Mr. Cuellar, dated November 4, 1999. What you 
have to remember is that at that time there was a question 
about the deportation of individuals who had never been back, 
who had come here as babies, children. There was a sizable 
Polish community in Boston, Massachusetts, that was being 
unevenly, or how should I say--it was being heavily targeted. 
Many of these individuals had never been to Poland and had 
juvenile offenses that were now coming to fruition, and many of 
them now were being deported. We heard from the Polish 
community, and many of the signees on here were from that 
region.
    The sentence that is relevant, ``However, cases,'' and I 
would like to share this, ``cases of apparent extreme hardship 
have caused concern. Some cases may involve removal proceedings 
against legal, permanent residents who came to the United 
States when they were very young and many years ago committed a 
single crime at the lower end of the aggregated felony spectrum 
but have been law-abiding citizens every since, obtained and 
held jobs, and remained self-sufficient and started families in 
the United States.''
    So the issue was, these were legal, permanent residents, 
but what was happening with the new laws, because of the felony 
issue, if they were picked up they were being deported. They 
had families; they had never been back to Poland, or wherever 
else they might be sent--a somewhat similar analysis to where 
we are today.
    One paragraph, then, says, ``True hardship cases call for 
the exercise of such discretion, and over the past year many 
Members of Congress have urged the INS to develop 
guidelines''--notice the old terminology, INS--``to develop 
guidelines for the use of its prosecutorial discretion.''
    Mr. Kibble, what I understand the administration's policy 
is not a get out of jail key, as I understand it. It is to use 
the appropriate discretion to ensure that those who would do us 
harm, those who have offended the legal system, are your--those 
who are threats to society are your chief priorities. Is that 
my understanding?
    Mr. Kibble. That is correct, ma'am. It is to accelerate 
these high-priority removals through what is currently a 
clogged system due to some of the issues that have been raised 
earlier today, in terms of limited immigration judges and other 
resources.
    Ms. Jackson Lee. You do not make the law, and if, for 
example, we pass a comprehensive immigration law that provided 
access to citizenship and put people in a line that had no 
interest in doing anything but being part of this great 
society, which I call, still, this great Nation--for me this 
Nation has never missed a step or a beat; we are a great Nation 
with great democracy and great rights. You would follow that 
law, as well, if that was passed by the Congress, signed by the 
President of the United States?
    Mr. Kibble. Yes, ma'am. As a senior career official in the 
agency, our role is to take the laws and the policies that are 
handed to us and implement them in the most effective way we 
can.
    Ms. Jackson Lee. And to follow the law. So if there is an 
analysis that has been made that a college student that came 
here at age 2, graduated from high school, got accepted into a 
college because of various different State laws, that that may 
not be at the top of ICE's priority right now, based upon the 
interpretation that comes to you from the Government?
    Mr. Kibble. Yes, ma'am. Director Morton's memo of June 17 
clearly states, though, that we are going to look at a whole 
range of factors and consider the merits of each individual 
case, and then determine on a case-by-case basis, based on that 
analysis, whether someone should be afforded extended 
discretion. I should just say, ma'am, that does not confer 
legal status.
    Ms. Jackson Lee. I understand. We welcome that, but we also 
know that while you are doing that you achieve a lot of human 
resources in doing so. But we welcome that.
    Finally, I am sorry that Mr. Duncan had to bring up a 
connected relative of our President. I don't know how many 
other Members of Congress who come from immigrant backgrounds 
that may have had similar circumstances.
    Thank you for awarding the President of the United States 
both privacy, but also the recognition that nothing 
inappropriate occurred. Is that correct, sir, to your 
knowledge?
    Mr. Kibble. Again, I would say that this case is being 
treated no differently than any other case that we would handle 
with meeting these consistent circumstances.
    Ms. Jackson Lee. Okay.
    Then I would finally suggest, again, 1.1 million that have 
been picked up and deported by the Obama--President Obama 
administration, although the President has clearly said his 
position, as it is my position, to support comprehensive 
immigration reform I believe would be the solution to your task 
so that you could focus on issues.
    Finally, the cleric that was killed, I think it would be 
absurd to suggest that if he was stopped in a car that local 
police would not be sensitive enough to his connectedness that 
someone would not detain him. Would you think that would be a 
reasonable response?
    Mr. Kibble. Yes, ma'am, although in the particular case I 
think it was a reference to Awlaki, who is actually a U.S. 
citizen, so it would be a different context within the----
    Ms. Jackson Lee. Well, then you are absolutely right. It 
would be a different context. You would expect someone else to 
be dealing with his particular situation because he is a U.S. 
citizen. But if there was a non-U.S. citizen with connectedness 
like the U.S. cleric, now deceased, you would be able to find 
some way to detain that individual.
    Mr. Kibble. In the days after 9/11 we actually created 
programs specifically focused on those particular 
vulnerabilities and ensuring that we had a close lash-up with 
the Joint Terrorism Task Force in coordination with the 
National Counterterrorism Center and a whole range of other 
interagency efforts to make sure that we are guarding against 
National security threats.
    Ms. Jackson Lee. Well, let me thank you very much, again, 
for your service.
    I yield back. Thank you.
    Mrs. Miller. The Chairwoman now recognizes the gentleman 
from Arizona, the new father.
    Mr. Quayle. Thank you, Madam Chairwoman. Thank you for 
holding this hearing.
    I want to thank all our witnesses for being here today and 
want to echo the sentiments of how proud we are of the CBP men 
and women and the men and women of ICE. They do a great job.
    We have had a lot of talk about cost today, and one of the 
things that hasn't been mentioned is the cost of--how much cost 
illegal immigration puts on the U.S. Government. It is about 
$113 billion a year. The vast majority of it is actually taken 
up by State and local governments--about $84 billion, according 
to some reports.
    Now, the States and locals--in my State of Arizona we 
constantly have to try to come to Washington to get payback for 
the amount of funds that we use as State level from the Federal 
Government because of illegal immigration. We are inundated by 
this for a long time.
    So, we have talked in here that--illegal immigration, this 
is a Federal rule, because--we in Arizona know that because we 
tried to pass a law, or we passed a law, that was going to 
enforce the Federal law, but then we got sued by the DOJ. The 
problem here, as Mr. McCaul was kind of pointing out, is that I 
understand prioritization, but it is the grand scheme of things 
from the administration that gives some--especially in my home 
State of Arizona--pause, saying that we are not going to be 
enforcing our immigration laws and we are not going to be 
securing the border the way that we can by not allowing--having 
these big beacons for people to come in illegally.
    I think it points to what was noted in the New York Times 
piece, but also what the President has been saying, himself, 
saying that we are not--he said recently in a town hall format 
that we are not going to be going after young people who did 
nothing--who didn't break any other laws besides being here 
illegally. So that grander scheme of things shows that, you 
know, we will have an amnesty by administrative policy.
    For those of us in Arizona, that is a huge concern for us. 
It is a big concern also because as we have made great strides 
along the border, especially in the Yuma sector, but the Tucson 
sector still has a lot of work to be done, and the one thing 
that was actually great for the Yuma sector was Operation 
Streamline, and it showed that there was going to be teeth for 
people and repercussions for people who came across illegally.
    Now, we are talking about we are still going to have 
enforcement when people are coming across the border and we are 
going to continue to work on that, but one thing I wanted to 
ask you, Chief Fisher, because you said, you know, you take it 
seriously--and I know you guys do down there--but once they get 
inside and once they actually get past that first sector--and, 
Mr. Kibble, you were talking about once you are here for just a 
few years, or a couple, you are still on the radar--how do you 
know how long they have been in America if they came across 
illegally and we didn't apprehend them? We have no way of doing 
that.
    So, Chief, that is what--and Mr. Kibble, both--how do we 
know that once somebody is in the United States how long they 
will be? Because that is where you were saying if they are in 
for a short amount of time they would still be on the 
prioritization of deportation, but I don't know how you can 
actually determine how long somebody has been in here if they 
came in illegally and weren't apprehended actually at the 
border.
    Chief Fisher. Well, sir, the first point I would like to 
address in terms of the Streamline case, we are right now--40 
spots per day from Yuma are being allocated in the Yuma 
district for those cases in Tucson. I will also say that 
Streamline, as an independent program, it is a lot stronger 
within the consequence delivery system than as a stand-alone 
program because we are seeing reduced recidivism and 
reapprehension rates within the CBS. So I just wanted to at 
least--just so you know, we are taking some of those 
recommendations from this particular committee and moving 
forward with those. We have this year and we will continue next 
year.
    When we apprehend an individual at the border and we do our 
biometric checks, among other things, it tells us a lot about 
those individuals. For those very small percentage of 
individuals that we apprehend that have been in this country 
for an extended period of time, there is a formal process. We 
still do the biometrics; we have to identify who these 
individuals are, if, in fact, they have a criminal history, and 
we, on each one of those cases, work those with ICE to find out 
the final determination.
    Mr. Quayle. But there is no real way, if they don't have 
any past history of coming across the border, right, and they 
are actually inside the United States, past where the 
enforcement areas really are, and if they picked up, is there--
there is no real determination on how many years, how many 
months they have been in the United States illegally, correct?
    Mr. Kibble, do----
    Mr. Kibble. Sir, I mean, our officers and our 
investigators, I mean, will--if they have an encounter and 
someone meeting that category comes across their radar, I mean, 
that is part of pursuing the process because we don't know what 
we have and we may arrest them and we may continue to move them 
through the process until they demonstrate some sort of 
evidence that they have been here in a manner that perhaps 
takes them outside of our priorities.
    But even if they are outside of our priorities, we are not 
saying we are going to ignore the law, in terms of non-priority 
removals. As I mentioned earlier, 10 percent we are removing 
that aren't priorities.
    Mr. Quayle. You are right. You have said that, but the 
problem is that other officials, and including the President, 
has been saying other things--not that we are not just going to 
enforce the law, but we are just not going to go after people 
and we are not going to enforce it against a certain people who 
are here illegally. I know it is not what you are saying right 
now, but when the President and other administration officials 
do say that, I mean, that is--words matter, and that actually 
does provide a magnet for people because they realize, 
especially once the economy gets back roaring again, which I 
hope it does soon, we are going to see, as we have seen 
historically, an uptick in illegal crossings.
    Mr. Kibble. Sir, may I----
    Mr. Quayle. Yes, absolutely.
    Mr. Kibble. Speaking to the magnet point, again, we are not 
reducing immigration enforcement in any way, and I am sorry I 
am repeating myself, but I am proud of what my guys have done--
my guys and gals have done. I mean, we are breaking records, 
and again, in virtually every category.
    With respect to the magnet in particular, I haven't talked 
about worksite enforcement yet, but that is the motivator. That 
is what fuels a lot of illegal migration.
    We have been breaking records in that category as well. We 
have brought criminal charges against more than 200 employers, 
up from last year, which was a previous record. We have 
initiated 3,000 investigations. We have audited more businesses 
than we have before.
    All of that helps to address the magnet, in terms of trying 
to dry up those opportunities that fuel that migration.
    Mr. Quayle. I applaud that, and I think that you guys have 
been doing a great job. I just think that why this hearing was 
actually called was because of the concern that the overall 
narrative that has been coming out of the administration--not 
specifically, you know--I mean, you have been addressing this 
today, but the overall narrative is that--and with the magnet--
is that what is going across and what people are hearing is 
that if you can come across and get through where the Border 
Patrol agents are at the border and get into the United States 
and you just follow the law, except for that you broke the law, 
then you are going to be able to stay and we are not--and the 
United States Government is not going to--now, you are saying 
that obviously we are not going to be doing that, but that is 
just the message that has been getting out.
    Mr. Kibble. Sir, I do want to be clear, though. I mean, our 
focus, our emphasis is on the priorities. But the point I want 
to make is that when non-priority aliens that we encounter may 
come across our radar we are not just ignoring that.
    I mean, with each one of those 400,000 removals we want to, 
to the maximum extent possible, make each one of them count in 
terms of promoting public safety. If you think about a 40 to 60 
percent National recidivism rate on criminal offenders, it is 
no stretch to say that when we remove 200,000 aliens from our 
communities, from our country, we are preventing thousands of 
crimes. I think it just makes good sense to pursue a 
prioritized approach, as I think many have agreed, although----
    Mr. Quayle. Right. I think that the prioritization, we 
understand it, it is just the overall narrative that has been 
coming out of certain parts of the administration, it changes 
that dynamic from, ``Hey, we are going to go after this,'' to, 
it goes, ``We are not going to go after that.'' That is the 
thing that a lot of us have problems with. So thank you for 
your clarification.
    Thank you, Madam Chairwoman. I yield back.
    Mrs. Miller. I thank the gentleman.
    Let me, again, sincerely thank all of the witnesses for 
their testimony today. It has been a very interesting hearing. 
Obviously, as I said at the outset, we have some significant 
differences on the committee about whether or not this is 
administrative amnesty. My personal belief is it clearly is, 
and that in no way diminishes our respect for the brave men and 
women in the Border Patrol or in ICE and the work that you do 
all the time.
    I will just note that--because I know we brought this up 
when your--Mr. Morton has been here, in June of last year, as 
has been widely acknowledged, there was a vote of no confidence 
by the ICE union rank-and-file members with Mr. Morton. I also 
believe that--that is why I asked you specifically, Mr. Kibble, 
whether your testimony was that you had been actively involved 
in this policy and that ICE supports it--your rank-and-file, 
your union president actually testified in front of the 
Judiciary Committee recently--I won't go through his whole 
testimony here, but basically they don't like this policy, at 
least that was their testimony to another committee. So I would 
just mention that.
    Again, for the record, I have the letter that was referred 
to by my Ranking Member. We will put that in the record. There 
is a lot of--I will let people read it and determine what you 
think. We will use our own discretion as to what was meant 12 
years ago.
    But I will say that, obviously, that letter was written 
before 
9/11. This subcommittee, our last hearing was actually about 
visa overstays, and we are talking today about whether or not 
this new policy is going to incentivize those to cross the 
border illegally.
    I think--it is my opinion--that it will also incentivize 
those who really mean us harm, those that are not just coming 
here to advantage themselves economically. That is probably the 
biggest concern that I have about this, as I mentioned in my 
opening question or testimony that--opening statement, is that 
many of the 9/11 hijackers had overstayed visas.
    These are individuals who may want to have sleeper cells, 
what have you. Believe me, they are not going to be out being 
caught drunk driving, leaving a bar after 2 o'clock and 
assaulting some woman, or whatever.
    So that is a concern, because they won't be criminal--they 
won't have a criminal record. I think that there is just a big 
cause for concern there when you see that--we have heard 
different numbers, whether it is 40 percent, 47 percent--in the 
40 percentile--of all the illegals that are here in this 
country are on visa overstays, as well.
    Of course, the visas are going through the Department of 
State, and we had somebody, because of our oversight that we 
were doing in this subcommittee, as I think we were doing our 
job to talk about visa overstays, all of a sudden, I don't know 
whether it was coincidence, serendipity, the day of our 
committee hearing a fellow came from State and said that they 
now have a new policy, which is good, to take a look at these 
kinds of things. But there has been great consternation about 
this.
    Before we close the committee I would recognize my Ranking 
Member for any further comments.
    Mr. Cuellar. Yes. Thank you, Madam Chairwoman. Again, I 
appreciate the good working relationship that you and I have 
had, and of course, the Members all working in a bipartisan 
way.
    We do have a few differences, as you can tell today, on 
this particular issue, but I think we are all trying to achieve 
the same goal and trying to secure our country. I am also 
encouraged that my colleagues on the other side, the Majority, 
are reading the New York Times and quoting from the New York 
Times. I am also very encouraged that they are also listening 
to what the unions are saying, also.
    So I am very encouraged that we are at least looking at 
different perspectives. But in all seriousness, I just want to 
join the Madam Chairwoman in saying this, that we appreciate 
all three witnesses for being here.
    I, in particular, want to point out the work that ICE has 
done--the work that ICE has done. John Morton has, under very 
difficult circumstances, has really done a tremendous job in 
three--almost in 3 years doing more than, you know, the other 8 
years in the prior administration. I know it is hard, but 
again, if we give you $1.5 billion and then raise it up to $1.6 
we are going to still end up with 400,000 or so folks that we 
can deport, and that is what the resources are.
    So hopefully we will come together in a bipartisan way, and 
I know we do have a few differences but we are all trying to do 
the same thing.
    Madam Chairwoman, I thank you for all the courtesies.
    Mrs. Miller. Thank you, Ranking Member, very much.
    Again, we thank the witnesses, and certainly applaud and 
support the work that is done 24/7 by your departments and your 
brave men and women.
    Thank you, Doctor, for coming, as well, from CRS. You did 
very well today. Very interesting testimony.
    With that, the hearing record will be open for 10 days if 
any further questions come from any subcommittee Members here 
today. With that, thank you very much. The committee will be 
adjourned.
    [Whereupon, at 11:46 a.m., the subcommittee was adjourned.]

                                 
