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



 
                    DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 19, 2012

                               __________

                           Serial No. 112-136

                               __________

         Printed for the use of the Committee on the Judiciary


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



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                       COMMITTEE ON THE JUDICIARY

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

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              

                             JULY 19, 2012

                                                                   Page

                           OPENING STATEMENTS

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

                                WITNESS

The Honorable Janet Napolitano, Secretary, U.S. Department of 
  Homeland Security
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     4
Material submitted by the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Member, Committee on the Judiciary.............................    42

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................    80
Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Member, Committee on the Judiciary.............................   246
Response to Questions for the Record from the Honorable Janet 
  Napolitano, Secretary, U.S. Department of Homeland Security....   253


                    DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                        THURSDAY, JULY 19, 2012

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

    The Committee met, pursuant to call, at 10:13 a.m., in room 
2141, Rayburn Office Building, the Honorable Lamar Smith 
(Chairman of the Committee) presiding.
    Present: Representatives Smith, Sensenbrenner, Coble, 
Gallegly, Goodlatte, Lungren, Chabot, Forbes, King, Franks, 
Gohmert, Poe, Chaffetz, Gowdy, Ross, Adams, Quayle, Amodei, 
Conyers, Nadler, Scott, Watt, Lofgren, Waters, Pierluisi, and 
Chu.
    Staff Present: (Majority) Richard Hertling, Staff Director 
and Chief Counsel; Travis Norton, Counsel; Holt Lackey, 
Counsel; David Lazar, Clerk; (Minority) Perry Apelbaum, Staff 
Director and Chief Counsel; Danielle Brown, Counsel; David 
Shahoulian, Counsel; and Tom Jawetz, Counsel.
    Mr. Smith. The Judiciary Committee will come to order. 
Without objection, the Chair is authorized to declare recesses 
of the Committee at any time.
    We welcome everyone to this hearing, and especially 
Secretary Napolitano, and appreciate her giving us the time 
today.
    I will recognize myself for an opening statement, and then 
the Ranking Member.
    Welcome, again, Secretary Napolitano, to today's oversight 
hearing of the Department of Homeland Security. DHS is 
responsible for the enforcement of America's immigration laws. 
But under the current Administration, the department seems 
instead to work to undermine those laws, and it has actively 
worked to make sure that many others do not enforce our 
immigration laws either.
    Obama administration officials recently decided to grant 
amnesty under the guise of ``deferred action,'' and also work 
authorization, to potentially millions of illegal immigrants. 
This unprecedented decision ignores the rule of law that is the 
foundation of our democracy. In exercising its responsibility 
to see that the laws are faithfully executed, the Executive 
Branch does have the power of prosecutorial discretion on a 
case-by-case basis, but this authority cannot be used to 
systematically dismantle our immigration laws.
    More than a century and a half ago, the Supreme Court noted 
that the President's constitutional power to enforce our laws 
does not imply that they can forbid their execution. President 
Obama understood this when he admitted last year that, quote, 
``There are laws on the books that Congress has passed'' so the 
Administration cannot ``just suspend deportations through 
executive order.''
    But President Obama has broken this promise to the American 
people. This Administration's decision to grant administrative 
amnesty on a mass scale ignores the rule of law and the 
separation of powers.
    The Administration's amnesty agenda is a win for illegal 
immigrants, but a loss for Americans. When illegal immigrants 
are allowed to live and work in the U.S., unemployed American 
workers have to compete with illegal immigrants for scarce 
jobs. With 23 million Americans unemployed or underemployed, 
this amnesty only makes their lives harder.
    The Obama administration's amnesty is also a magnet for 
fraud. Many illegal immigrants will falsely claim that they 
came to the U.S. as children, and this Administration refuses 
to take the steps necessary to check whether their claims are 
true or not.
    Time and again, the Department of Homeland Security has 
gone out of its way to avoid the enforcement of immigration 
laws. The Department of Homeland Security's policy of non-
enforcement will continue to cost innocent Americans their 
jobs.
    As Secretary of Homeland Security, Madam Secretary, you, 
like all Americans, also must be extremely concerned about the 
recent disclosure of national secrets. The methods and sources 
of intelligence we use to protect homeland security must be 
kept strictly secret. When these secrets leak and become public 
knowledge, American lives are threatened.
    Recent damaging leaks include operational details of the 
Bin Laden raid, specifics about how we conduct cybersecurity, 
and information about drone strikes. Because of these leaks, 
our enemies now know how we will hunt them, which will only 
make the hunt more difficult.
    Homeland security depends on our ability to keep secrets 
from those who would attack our homeland. When these secrets 
leak and become public knowledge, our people and our national 
interests are put in jeopardy. When our enemies know our 
secrets, American lives are in danger.
    The government's ability to keep national security secrets 
depends on identifying the causes of the recent leaks and 
putting a stop to them. That is why I have asked to interview 
senior officials who may have information on how these secrets 
become public.
    The Department of Homeland Security has a responsibility to 
deter and prevent terrorists from attacking the United States. 
To do this, we must protect the details of our intelligence-
gathering.
    That concludes my opening statement. And the gentleman from 
Michigan, the Ranking Member, is recognized for his.
    Mr. Conyers. Thank you, Mr. Chairman.
    And welcome, Madam Secretary.
    I want to remind you, I meant to do it off the record, but 
I want to remind the Chairman that his opinion is his own, but 
the facts are not, the ones that he controls. And I am keeping 
a record, I want to announce to him, of all of the things that 
I think are serious misstatements of fact, which I will be 
taking either to the floor or publishing otherwise. I think I 
mentioned this to you before----
    Mr. Smith. I am sure you did.
    Mr. Conyers. So I think you have given me some work to do 
already.
    And I would like to say to all the Members of this 
Committee, I want this to be a civil hearing in which we 
exchange views, make criticisms, voice opinions. But I would 
like it to be done in keeping with the reputation of the House 
Judiciary Committee, so that we don't get out of control. And I 
am sure the Chairman will agree with me on that.
    I welcome you, Madam Secretary. And I had some issues about 
some security incidents in Detroit. And I would like not to 
take up our time talking about them here, but I would be 
looking forward to it, because Detroit, of course, the Detroit-
Windsor Tunnel, is the largest commercial border crossing in 
North America, and these threats are of concern both to our 
country and to Canada as well.
    Now, the other couple of things that I wanted to commend 
you on is the fact that we have improved border security. And 
having listened to some of my colleagues, I thought that the 
border security on the southern end of our country was in bad 
shape. But border security is more secure than it has ever been 
before, I think due to increased border enforcement efforts.
    And unauthorized border crossings are at a 40-year low. We 
haven't seen border apprehension numbers this low since 1972. I 
commend Homeland Security for that.
    And if there are other insights that you would like to 
share with us today, and we have time, I would like to do it. 
If not, I would like to get more information from you or your 
staff.
    At the same time, immigration removals have been at an all 
time high, just short of 400,000 last year. And what is more 
impressive is the makeup of the numbers.
    For the first time ever, persons with criminal convictions 
made up more than half of those removals, and more than 90 
percent met the Administration's enforcement priorities, which 
includes recent border crossers and repeat violators.
    And so even in the critical shortage of funds and 
personnel, I think that the strategies of your department are 
effective and are taking hold. The policy in ICE, in 
consultation with the Civil Rights and Civil Liberties Office, 
has developed a new policy designed to protect victims of 
domestic violence and other crimes, and to ensure that they are 
reported.
    The Dream Act, a conservative-created idea, which I 
support, has been very effective. And young people brought to 
this country through no fault of their own, and this is 
popularly accepted among our citizenry, are given, if they go 
into service and graduate and do a few other things that 
indicate they want to be good Americans like the rest of us, 
are given a special way to achieve their dream of citizenship.
    And so I thank you for coming back again. And I will put 
the rest of my statement in the record, and thank the Chairman 
for his generosity with the time.
    Mr. Smith. Without objection.
    Thank you, Mr. Conyers.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Twenty years ago, the Supreme Court decided in Quill Corp. v. North 
Dakota that it was too difficult for a remote seller to comprehend 
every tax law in every state and locality in which it may sell 
something. In its view, states needed to simplify their sales tax laws 
so remote sellers could understand them easily. Otherwise, these 
complicated sales tax laws burdened interstate commerce.
    The Supreme Court decided that without simplification, a remote 
seller would not have to collect sales taxes in a state in which it 
does not have a substantial presence, or in its view, a physical 
presence.
    But the court did clearly state that Congress is better suited to 
determine whether a remote seller must collect and remit sales taxes.
    It is past time for Congress to make that determination and we 
should do so now particularly in light of the many technological 
advances that have occurred since the Court rendered its decision 20 
years ago.
    For example, because of these technological advances, smartphones 
can tag a photo with the date, time, and most relevant, the precise 
location through GPS, where the photo was taken, no matter where it was 
taken.
    Clearly, technology has eliminated the burdens a remote seller 
would have had in 1992. And technology has made it easier for Congress 
to act now. Doing so will accomplish several important goals.
    By addressing the Quill decision, Congress will ensure competitive 
equity among retailers.
    The Internet allows consumers to comparison shop quickly before 
making a final purchase. Oftentimes, a consumer can walk into a brick 
and mortar store, check the price of the item, ask the salesperson a 
few questions, and then take out a smartphone to find a cheaper price 
online.
    The online retail price is generally lower because many Americans 
do not have to pay any sales tax, which can make a significant 
difference in the final purchase price, ranging anywhere from 3 to 12% 
of the price of the item.
    This gives out-of-state retailers who operate online a clear 
advantage. They can charge the same basic pre-tax price as a local 
retailer for a pair of designer jeans or a video game console, but the 
price the consumer actually pays is lower because they do not collect a 
sales tax.
    It is obvious why savvy consumers, especially in this cost-
conscience environment, would take advantage of such considerable 
savings.
    This also explains why the percentage of online sales and the total 
amount of online sales continue to increase.
    Competitors should compete on things other than sales tax policy. 
For those arguing for more of a free market, they should support 
eliminating any competitive advantage based on sales tax policy.
    Uncollected sales taxes also have a negative impact on local 
communities, including retailers, and local and state governments.
    Fewer purchases at local retailers translate to fewer local jobs. 
Main Street retailers, local mom-and-pop stores, and even big-box 
retailers suffer when they lose customers because they have to collect 
a sales tax while online retailers do not.
    Lower sales at local retailers also translate to lower revenue for 
local and state governments. Sales taxes constitute a significant state 
and local revenue source.
    For example, the Census Bureau estimates that nearly one third of 
state and local revenues are derived from general sales and use taxes.
    With ever increasing online sales, states and local governments 
anticipate huge revenue losses as a result of uncollected sales and use 
taxes.
    For example, the Michigan Department of Treasury estimates that 
total revenue lost to e-commerce and mail order purchases will total 
$872 million during fiscal years 2012 and 2013.
    The impact of such lost revenue is reflected in

      forced cutbacks to public education programs, such as 
sports, after-school enrichment programs, and extracurricular 
activities,

      delapidated roads and bridges not being repaired, and

      reductions in critical services, such as police and 
firefighter protection.

    Just last week, the State Budget Crisis Task Force, which is led by 
Paul Volcker and Richard Ravitch, released a report on the plight of 
states.
    In its report, the task force recommended that Congress should 
grant states the authority to collect sales taxes on online sales. 
Doing so would help states address their budgetary problems.
    Otherwise, states will have to cut services further. Or, replace 
the erosion of sales taxes by increasing taxes in other areas, 
something anti-tax advocates would surely oppose.
    Fortunately, Congress can ensure a level playing field and address 
state revenue issues by passing bipartisan supported legislation that 
would allow states to require remote sellers to collect and remit sales 
taxes.
    H.R. 3179, the ``Marketplace Equity Act of 2011,'' introduced by my 
colleagues, Representatives Steve Womack and Jackie Speier would grant 
that much-needed authority.
    I introduced similar legislation, H.R. 2701, the ``Main Street 
Fairness Act.''
    Our colleagues on the other side of the Capitol, Senators Mike 
Enzi, Dick Durbin, and Lamar Alexander, introduced S. 1832, the 
``Marketplace Fairness Act.''
    Although each of the three bills take different approaches, they 
each would accomplish the same goal: leveling the playing field between 
retailers and online sellers by granting that essential authority.
    Today's hearing focuses on H.R. 3179, a bipartisan bill that would 
simplify collection rules and increase compliance. As a result, it 
would ensure fairness and provide a national solution.
    This bill would neither impose a national sales tax nor lead to any 
new taxes. Consumers already owe sales and use taxes on the goods and 
services they purchase; however, many do not pay it voluntarily.
    The business community has worked tirelessly on this issue and 
supports this bill. Big-box retailers, such as Walmart, Best Buy, and 
JC Penney, and small businesses, such as Michigan-based Marshall Music 
and the National Association of College Stores, are urging Congress to 
act and pass much-needed legislation.
    Even giant online retailer Amazon.com, which has benefitted from 
not having to collect sales taxes in many states, supports Congress 
acting.
    Other supporters of this legislation include at least a dozen 
governors--both Democratic and Republican--as well as the National 
Governors Association. In addition, the National Conference of State 
Legislatures, and the National League of Cities, along with many 
organizations also urge Congress to pass legislation addressing this 
issue.
    I believe that Congress should pass legislation that promotes 
economic efficiency and helps our states and local governments maintain 
financial support for public education, health, and safety.
    The Marketplace Equity Act and the other legislative proposals that 
I mentioned accomplish these goals.
    I thank Chairman Smith for holding this very important hearing and 
I urge the Chairman to markup this bill at the next scheduled markup.
                               __________

    Mr. Smith. Our witness today is Janet Napolitano, Secretary 
of the United States Department of Homeland Security.
    Sworn in on January 21, 2009, Ms. Napolitano is the third 
Secretary of DHS. Prior to becoming Secretary, Ms. Napolitano 
was in her second term as Governor of Arizona. Before becoming 
Governor, Ms. Napolitano served as attorney general of Arizona 
and as U.S. Attorney for the District of Arizona.
    She is a 1979 graduate of Santa Clara University, where she 
won a Truman Scholarship and was the university's 
valedictorian. She received her Juris Doctorate from the 
University of Virginia School of Law in 1983.
    Before entering public office, Ms. Napolitano served as a 
clerk for Judge Mary M. Schroeder on the U.S. Court of Appeals 
for the Ninth Circuit and practiced law in Phoenix, Arizona.
    Secretary Napolitano, we look forward to your testimony 
today, and please begin.

 TESTIMONY OF THE HONORABLE JANET NAPOLITANO, SECRETARY, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

    Ms. Napolitano. Thank you, Chairman Smith and Ranking 
Member Conyers and Members of the Committee.
    I am pleased to join you today to address the homeland 
security issues that fall within the Committee's jurisdiction.
    Just as a parenthetical, this is now my 40th time 
testifying before either the Senate or the House.
    Today, nearly 11 years after the 9/11 attacks, America is 
stronger and more secure, thanks to the work of the men and 
women of DHS and our Federal, State, local, tribal, and 
territorial partners across the homeland security enterprise.
    Every day, more than 230,000 DHS employees ensure the 
safety and security of the American people in jobs that range 
from law enforcement officers and agents to disaster response 
coordinators, from those who make sure our waterways stay open 
to commerce, to those who make sure our skies remain safe. The 
men and women of DHS are committed to our mission, and I thank 
each one of them for their service.
    Now as I have said many times, homeland security begins 
with hometown security. As part of our commitment to strengthen 
hometown security, we have worked to get information, tools, 
and resources into the hands of State, local, tribal and 
territorial officials and first responders. And this has led to 
significant advances.
    We have made great progress in improving our domestic 
capabilities to detect and prevent terrorist attacks against 
our citizens, our communities, and our critical infrastructure. 
We have increased our ability to analyze and distribute threat 
information at all levels.
    We have invested in training for local law enforcement and 
first responders of all types in order to increase expertise 
and capacity at the local level. And we have supported and 
sustained preparedness and response capabilities across the 
country through more than $36 billion in Homeland Security 
grants since 2002.
    As the Committee knows, we also have made substantial 
advances in securing our Nation's borders and enforcing the 
immigration laws. And at the same time, we have worked to 
streamline and facilitate the legal immigration process.
    In my time, I would like to discuss our efforts with 
respect to immigration consistent with the Committee's 
jurisdiction over this important, indeed, essential, issue for 
our country.
    As Ranking Member Conyers noted, over the past 3 and a half 
years, this Administration has deployed unprecedented levels of 
personnel, technology, and resources to protect our Nation's 
borders. These efforts have achieved significant results, and 
illegal immigration attempts are at their lowest levels since 
1971.
    This decrease in apprehensions of those seeking to enter 
the country illegally, one of the best indicators of illegal 
immigration attempts, is combined with increases seizures in 
drugs, weapons, cash, and contraband.
    To secure our Nation's Southwest border, we have continued 
to deploy unprecedented amounts of manpower, resources, and 
technology, while expanding our relationships and partnerships 
with Federal, State, tribal, territorial and local partners, as 
well as with the Government of Mexico.
    Simply put, the Obama administration has undertaken the 
most serious and sustained action to secure the Southwest 
border in our Nation's history. This includes increasing the 
number of Border Patrol agents nationwide from approximately 
10,000 in 2004 to more than 21,000 today, with nearly 18,500 
boots on the ground and air coverage border-wide along the 
Southwest border.
    We also have worked, and continue to work, to enforce and 
administer our immigration laws in a cohesive way that is 
smart, effective, and that maximizes the resources that 
Congress has given us to do this important job.
    Our priorities are to enhance public safety, national 
security, border security, and the integrity of the immigration 
system, while respecting the rule of law and staying true to 
our history as a Nation of immigrants.
    We carry out these priorities by focusing our resources on 
the identification and removal of criminal aliens, repeat 
immigration violators, recent border entrants, and those who 
otherwise pose a threat to public safety or national security.
    To this end, we have expanded the use and frequency of 
investigations and programs that track down criminals and other 
public safety and national security threats on our streets, in 
our neighborhoods, and in our jails.
    These efforts have achieved historic results, including the 
removal of 216,000 convicted criminals in 2011, the highest 
number ever. This year, we will remove the highest number of 
aggregated felons ever.
    Furthermore, these efforts are enhanced by our use of 
prosecutorial discretion, including my June 15 announcement 
regarding the availability of deferred action for individuals 
who came to the United States as children.
    These policies promote the efficient use of our resources, 
ensuring that we do not divert them away from the removal of 
convicted criminals by pursuing the removal of young people who 
came to this country as children, and who have called no other 
country home. Implementation of the deferred action process is 
underway, and we will be ready to accept applications on August 
15.
    Additionally, we have made numerous improvements to our 
administration of immigration benefits and services, continuing 
our tradition as a welcoming Nation to new immigrants, 
businesses, students, and those seeking refuge and asylum.
    In conclusion, this department has come a long way, and in 
the nearly 11 years since 9/11, to enhance protection of the 
United States and engage our full range of partners in this 
shared responsibility.
    Together, we have made significant progress to strengthen 
our borders, enforce our immigration laws, and improve and 
streamline our immigration processes and systems.
    But we are aware of challenges that remain. Threats against 
our Nation, whether by terrorism or otherwise, continue to 
exist and to evolve. And DHS must continue to evolve as well.
    We continue to be ever-vigilant to protect against threats 
to our Nation, while promoting the movement of goods and 
people, and protecting our essential rights and liberties.
    I thank the Committee for your attention as we work 
together to keep the country safe, and I am looking forward to 
your questions. Thank you.
    [The prepared statement of Ms. Napolitano follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Smith. Thank you, Madam Secretary. I will recognize 
myself for questions.
    And let me go first to the subject I mentioned in my 
opening statement a minute ago, and that is the subject of the 
leaks that I feel and so many others feel have endangered our 
national security and actually put American lives at risk.
    As you know, there is bipartisan concern for those leaks. 
You had the Chairs of the House Intelligence Committee and the 
Senate Intelligence Committee both saying that the extent of 
these leaks are broader, deeper, more dangerous than any we 
have seen in recent years.
    Have you had the opportunity to talk to the President and/
or his national security advisers about these leaks and how to 
prevent them in the future?
    Ms. Napolitano. Mr. Chairman, I have spoken with the head 
of the DNI about the leaks. He is leading an investigation, as 
you know, but I too take these very seriously. They do endanger 
homeland security.
    Mr. Smith. Okay. And according to media reports, and we are 
talking about in this case the New York Times and the AP, it 
was high-level Administration officials who were the source of 
these leaks. Have you taken any action yourself to try to find 
out more about how they occurred and why high-level 
Administration officials were involved?
    Ms. Napolitano. No, I have not myself, Mr. Chairman. But 
others are looking into the source of the leaks.
    Mr. Smith. Well, speaking of the others looking into it, do 
you favor the appointment of, say, a special counsel to 
investigate these leaks? And let me say before you answer that, 
when we had the incident of a single leak during the last Bush 
administration, that President was willing and did appoint a 
special outside counsel.
    Would you support such an outside counsel being appointed 
because of these recent leaks?
    Ms. Napolitano. Mr. Chairman, there are a number of 
individuals that are looking into the source of the leaks. I 
don't know that appointing yet another one would add anything 
of value.
    Mr. Smith. Well, let me explain why I think it would, very 
quickly. What the Administration has done is to appoint 
individuals to investigate itself. And I am not sure how much 
confidence the American people will have that that is going to 
be an objective or in-depth investigation where the 
Administration is, as I say, investigating itself.
    It would be far more credible for the Administration to 
appoint a special counsel, an outside party to get to the 
bottom of the leaks. So I am disappointed the Administration 
has not been willing to do that.
    Let me go now to the subject of the Administration trying 
to implement some of the Dream Act provisions without a vote of 
Congress, but go to the way that is being implemented.
    Will individuals who have pending Dream Act applications be 
eligible for advanced parole? I mentioned this to you earlier, 
but it is my understanding they would eligible. Do you have any 
reason to think otherwise?
    Ms. Napolitano. This is not an advanced parole program. 
This is a deferred action, case-by-case----
    Mr. Smith. Right, I know it is not an advanced parole 
program, but would individuals be eligible to receive that 
status, who would be considered under these provisions?
    Ms. Napolitano. There may be particular individuals, Mr. 
Chairman, but the program is designed to be a case-by-case 
analysis only for deferred action.
    Mr. Smith. Okay, but individuals might be considered for 
advanced parole?
    Ms. Napolitano. Again, there are so many individual factors 
that go into each case that I don't want to make a categorical 
answer.
    Mr. Smith. I am not saying that all would, but you said 
that some individuals might be. That is of some concern to me 
because if they get that status, that is going to enable them 
to get lawful permanent status, which is the path to 
citizenship.
    So if you go down that road, as I think you may be going, I 
think we need to be aware of the consequences of those actions.
    Ms. Napolitano. Mr. Chairman, if I might respond to that?
    Mr. Smith. Sure.
    Ms. Napolitano. The factors that go into this are the 
factors laid out in my memorandum to our department heads on 
June 15th. This is clearly a deferred action, case-by-case 
analysis.
    Mr. Smith. Right.
    Ms. Napolitano. There may be factors independent of and 
separate from----
    Mr. Smith. I know it is case-by-case, but individuals, I 
think, will be eligible. And that will put them on the path to 
citizenship.
    Next question: Are the parents of individuals, of those who 
receive Dream Act amnesty, would they be eligible for 
prosecutorial discretion, the parents of the individuals?
    Ms. Napolitano. They will not be eligible for deferment, 
deferred action, pursuant to my June 15 memorandum. They may 
independently be subject to an exercise of prosecutorial 
discretion, should they have a case before ICE----
    Mr. Smith. Okay.
    Ms. Napolitano [continuing]. For example.
    Mr. Smith. And last question is this: DHS does not 
currently plan to require Dream amnesty applicants to provide a 
certified school transcript. It seems to me that that is the 
only way to prove that those individuals were in the country 
and are eligible under some of these provisions. Do you plan to 
require applicants to provide that certified school transcript 
or not?
    Ms. Napolitano. Mr. Chairman, we are still working through 
the details on some of that. Our plan is to accept different 
types of documents and to----
    Mr. Smith. Right.
    Ms. Napolitano [continuing]. Enhance our fraud prevention 
efforts.
    Mr. Smith. How can you still be working through those 
details when I understand over 1,000 individuals have already 
been granted status under these provisions?
    Ms. Napolitano. We are working through the details of how 
someone who is applying through CIS, what records they have to 
produce.
    ICE already had several individuals in their removal 
proceedings and have looked at those.
    Mr. Smith. And is it true about 1,000 individuals have 
already been approved under the Dream Act?
    Ms. Napolitano. About 1,000 have been approved for deferred 
action, yes.
    Mr. Smith. And we still don't know the details about 
whether transcripts are going to be required or not?
    Ms. Napolitano. Well, school transcripts, residency 
records, medical records, anything to show residency, age, what 
have you.
    Mr. Smith. Right.
    Ms. Napolitano. And then we will evaluate on a case-by-case 
basis those documents----
    Mr. Smith. So the certified school transcripts may or may 
not be required?
    Ms. Napolitano. I think that is fair to say.
    Mr. Smith. Okay. Thank you, Madam Secretary.
    And the gentleman from Michigan, Mr. Conyers, is recognized 
for his questions.
    Mr. Conyers. Thank you, Chairman Smith.
    Thank you, Secretary Napolitano.
    I wanted to start off with these threats at the border 
crossing in Detroit and Windsor. Is there any comment you can 
make about that at this point?
    Ms. Napolitano. Excuse me, I am sorry?
    Mr. Conyers. About the bomb threats that shut down the 
Ambassador Bridge in Detroit and Windsor for about 5 hours, and 
they are of national concern and, of course, in my locality.
    Do you have any information you can share with us at this 
point on that?
    Ms. Napolitano. Congressman, let me just say that the FBI 
has an open and active investigation there. We are providing 
all assistance necessary. We take this very seriously. And we 
are also looking, quite frankly, operationally at how long the 
closures were, to see whether there are ways to more swiftly 
clear a bridge or a tunnel for the lawful commerce that needs 
to go back and forth.
    Mr. Conyers. Thank you.
    Now, the Chairman of this Committee mentioned amnesty twice 
only. That was much less than he usually does. But the Dream 
Act, can you help us clear up this notion of some kind of 
deferred amnesty being involved in this, please?
    Ms. Napolitano. It is not amnesty. What this is, is it is 
really the development that we have been looking at over the 
last several years of how do we clear out the backlog of non-
priority cases, so that we can focus on criminals, recent 
border crossers, repeat violators. And this particular group 
has strong equities for it.
    As we went through the case-by-case analysis of the 
existing backlog, it became clear to me that we needed to do 
something in addition to that. And that resulted in the 
conclusion to offer 2-year deferred action, case-by-case 
analysis, subject to renewal.
    Mr. Conyers. What about the recent Arizona case? The court 
opinion gave us some strong support for the executive branch to 
exercise prosecutorial discretion. Do you have any comments 
that you can share with us about that matter?
    Ms. Napolitano. The Supreme Court, I think, validated the 
fact that the Federal Government ultimately has the discretion 
in enforcing and choosing how to enforce the Nation's 
immigration laws. And I think their language is very strong.
    If you go back through precedent, you have Reno v. The Arab 
American Anti-Discrimination League. You have Chaney v. 
Heckler. And ultimately, you have Article II, Section 3 of the 
Constitution, reaffirming that the executive has discretion in 
terms of who to prosecute and who to prioritize resources for. 
In this case, criminals, recent border violators, and repeat 
violators.
    Mr. Conyers. Now, our Subcommittee on Crime issued a 
subpoena for information related to individuals who are 
arrested, identified by ICE for removal, but never taken into 
ICE custody. And I have been told you produced nearly 250,000 
individuals satisfying the subpoena, and you continue to 
provide additional information.
    How is that coming along? That was a sort of--we don't 
normally have Subcommittees issuing subpoenas, but, oh well, 
you know.
    Ms. Napolitano. We intend and have been trying to comply 
with the subpoena and to provide the documents. A lot of the 
requests are for documents in formats other than how we 
maintain the documents, which adds an additional level.
    I think we just received another request, I want to say in 
mid-July. We intend to comply with that.
    Mr. Conyers. I have other questions, but I will be 
submitting them to you and will be putting them in the record.
    Thank you, Chairman Smith.
    Mr. Smith. Thank you, Mr. Conyers.
    The gentleman from Wisconsin, Mr. Sensenbrenner, is 
recognized.
    Mr. Sensenbrenner. Thank you very much.
    Madam Secretary, first of all, let me compliment you for 
trying to soften me up by revealing that you are a Packers fan. 
I commend you for your very good judgment on that.
    Now, one of the biggest problems we have is visa overstays. 
And I have seen estimates that up to 40 percent of the illegal 
immigrants in the country enter the country legally and did not 
leave before their visas expired.
    What kind of figures do you have about visa overstays? And 
what plans do you have to track down those who overstay their 
visas, as well as whether we should have some type of exit 
check when people leave the country?
    Ms. Napolitano. Let me break that into two parts. On the 
visa overstays, based on numbers from U.S.-VISIT, we could have 
has as many as 1.6 million. So last year, I directed that we 
had to go back, we had to identify those visa overstays, if 
they were indeed overstays, and evaluate their status and make 
referrals to ICE.
    We found in that evaluation that half of those were not--
they actually had left the country, and we just hadn't matched 
the records appropriately.
    A number of others actually weren't overstays. They had 
changed their status.
    But we have made referrals to ICE. We have done background 
checks on all of them, against law enforcement and national 
security databases, the whole universe, and we are current now.
    With respect to an exit system, we have given the Congress, 
in May, our plan on how we get to a biometric exit system for 
the country. We begin with what we call enhanced biographic, 
using data that we previously didn't have all in one place that 
you could easily search. But we have given that plan, and our 
intent is to move forward.
    Interestingly, one of our new projects is with Canada. We 
are going to match with Canada their entry data for land entry. 
So even if we don't have a lane or an ability to mark our exit 
data at the land border, we will take their entry data and put 
it in our system.
    Mr. Sensenbrenner. Okay. Thank you.
    Now that gets me to the story that appeared yesterday in a 
CNS report that said that the TSA approved flight training for 
25 illegal aliens at a Boston area flight school that was owned 
by another illegal alien, according to a GAO study. The illegal 
alien flight school attendees included eight who had entered 
the country illegally and 17 who had overstayed their allowed 
period of admission to the United States, according to an audit 
by the GAO.
    And the story goes on to say that there were over 25,000 
foreign nationals in the FAA airman registry that were not on 
the TSA AFSP database, and, consequently, had not been vetted. 
Now, this sounds like a 9/11 deja vu, and I am wondering that 
the Department of Homeland Security is going to do to make sure 
that everybody who is in a flight school is properly vetted, if 
they are a foreign national.
    Ms. Napolitano. Yes, I think that report referred to a 
several year old matter, which obviously is of concern. But we 
took steps in 2010 to make sure that all foreign students who 
are in this country applying to fight school are vetted, and 
that has been in place. And we intend to confirm that.
    We have been doing it for 2 years. I think what the GAO 
said, well, you don't have a written thing that says--we agree 
you have been doing it, but you need a written MOA. So we are 
going to put that together.
    Mr. Sensenbrenner. And how long will that take?
    Ms. Napolitano. Oh, we will do it very quickly. I think the 
flight schools, we want to make sure we are very tight there, 
for obvious reasons.
    Mr. Sensenbrenner. Okay. The story also said that the GAO 
did not provide the full number of individuals who are not 
properly vetted. Do you have numbers on how many of these folks 
were not properly vetted?
    Ms. Napolitano. Well, all I can say is that foreign 
students are vetted, and they have been being vetted for 
several years. If they apply to the FAA for a license, there is 
a re-vetting that goes on. And then the FAA database is 
routinely pinged against our national security and criminal 
databases.
    Mr. Sensenbrenner. Okay, thank you very much.
    I yield back the balance of my time.
    Mr. Smith. Thank you, Mr. Sensenbrenner.
    The gentleman from New York, Mr. Nadler, is recognized.
    Mr. Nadler. Thank you.
    Madam Secretary, 5 years ago, Congress passed the 9/11 
Commission Implementation bill, which mandated that, by this 
month, all maritime cargo containers must be scanned before 
they are loaded onto ships bound for the United States.
    When we wrote the law, we recognized that 100 percent 
scanning would be difficult to achieve overnight, which is why 
we gave DHS 5 years to comply and allowed for extensions of the 
deadline in certain cases. We assumed that 100 percent scanning 
would be phased in, and that the department would make a good-
faith effort to try to comply with the law.
    Unfortunately, DHS just recently granted itself a 2-year 
extension for all ports, citing obstacles that, from what we 
can tell, the department never even tried to overcome. Your 
letter to Congress explaining the extension repeats a lot of 
the same objections we heard 5 years ago, which Congress 
rejected at that time.
    You have repeatedly said that you prefer a layered approach 
in scanning 100 percent of high-risk cargo. I don't think 
anybody would have a problem with that, as long as the 
department's efforts don't stop with the high-risk cargo. 
Checking just the cargo you think is high risk is inadequate. 
Scanning 100 percent of all cargo should be the ultimate goal.
    The department takes a 100 percent scanning approach at 
airports. If we pat down and scan grandmothers and 4-year-olds, 
because we must check 100 percent at airports, why shouldn't 
the same principle hold true for maritime containers, which, as 
many security experts have noted, could more easily contain 
nuclear weapons?
    That is the law, and that is what you should be working to 
achieve. I am concerned that DHS simply decided it did not 
agree with the law and has never made any good faith effort to 
resolve the potential challenges.
    DHS has justified extending the deadline for 100 percent 
scanning by citing technological and operational barriers. Yet 
there are port operators and security companies that want to 
work with the department on implementing the law and that tell 
us that the department won't even talk to them.
    DHS claims the cost of implementing the mandate is $16 
billion, but that assumes that the Government would pay to 
acquire, maintain, and operate the equipment when, in fact, 
there is nothing in the law that says that cost has to be borne 
by taxpayers.
    The cost per container, and a container contains an average 
of $66,000 worth of goods, has been estimated at $10 to $20 per 
container, which is a trivial cost. We all pay a $5 passenger 
security fee for airline tickets.
    So my questions are, why does DHS continue to resist even 
trying to comply with the law and to achieve the scanning that 
the law requires? And will you commit to work with us in good 
faith in moving forward to make progress toward the mandate 
that Congress passed into law 5 years ago of scanning 100 
percent of cargo containers before they are put onto ships 
bound for American ports?
    Ms. Napolitano. Representative, in my view, we have made a 
good faith effort to comply with the law. We have conducted 
pilot projects abroad. We have met with commercial carriers. We 
have met with foreign governments who would have to give us the 
ability to install things abroad.
    There has been extensive research done on this, and it was 
done by us, and it was done by my predecessor, but we did it 
independently.
    We both came to the same conclusion, that the goal is the 
right goal. How we get there----
    Mr. Nadler. The goal of 100 percent scanning is the right 
goal?
    Ms. Napolitano. The goal of safe delivery of containers 
into U.S. ports is----
    Mr. Nadler. Excuse me. Congress decided that a layered high 
risk--a layered approach of inspecting only high-risk cargo, 
and, for that matter, inspecting even all of it once it is 
here, was not sufficient. That is a decision that Congress 
made. It is the law. It is not up to the department to change 
that view.
    Ms. Napolitano. Well, Congressman, we have a very extensive 
program, including not just phased in but the container 
security initiative, the global supply chain initiative and 
others.
    Mr. Nadler. All of which Congress knew about and decided 
was not sufficient. And Congress decided, and the President 
signed into law, a law that says you must implement 100 percent 
scanning as quickly as practicable within 5 years.
    And yet you have decided or the department decided that 
that is not practical, which is not your decision. That is 
Congress' decision. And you are making no attempt, and you have 
made no real attempt, as far as we can tell, to implement the 
law.
    Ms. Napolitano. Well, Congressman, you and I are just going 
to have to disagree on that. But furthermore, we continue to 
improve efforts to inspect containers, to have trusted 
shippers, to have trusted----
    Mr. Nadler. But isn't it true that under 4 percent of 
containers are now inspected before they get here?
    Ms. Napolitano. Say that again, please?
    Mr. Nadler. Isn't it true, I forget whether it is 2 percent 
or 4 percent of containers are inspected before they get there?
    Ms. Napolitano. It probably depends on the particular port.
    Mr. Nadler. But, nationally, it is under 4 percent?
    Ms. Napolitano. Again, I can't give you that number.
    Mr. Nadler. Well, my information is that it is under 4 
percent, and that leaves it 96 percent short.
    Mr. Smith. The gentleman's time has expired. Thank you, Mr. 
Nadler.
    The gentleman from California, Mr. Gallegly, is recognized.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    And welcome, Madam Secretary.
    This is a very important hearing. It is been an issue I 
have been involved with for 25 years here in the Congress, and 
it never seems to get any easier.
    I would like to make a unanimous consent request that, 
because of the amount of time that we have here this morning, I 
know that we have the opportunity to submit questions. My 
unanimous consent would be that the questions that I submit to 
the Secretary be responded to, hopefully within a period of 30 
days, and that I would have, under unanimous consent, the 
opportunity to, for the record, have a response to the 
questions that were asked, that were responded back to by the 
Secretary.
    Mr. Smith. Without objection.
    Mr. Watt. Mr. Chairman, I reserve the right to object.
    Mr. Smith. The gentleman from North Carolina.
    Mr. Watt. Can the gentleman explain what he is requesting?
    Mr. Gallegly. Well, I appreciate the opportunity to respond 
to my good friend from North Carolina.
    I don't intend to ask any trick questions. I am not asking 
for questions. And, for the record, you will find that the 
questions will not be something that requires a great deal of 
research or whatever.
    It is really more on policy and trying to understand the 
policy on some of these issues, and I would like to--sometimes 
we get responses that really aren't complete. And I would just 
like to say, in my opinion, I accept or disagree on it, just 
for the record.
    Mr. Watt. Mr. Chairman, I have some serious reservations 
about what the gentleman is proposing.
    First of all, I assume he is proposing a set of rules for 
himself that does not apply to all other Members. His 
intentions may be absolutely good, but I don't have the same 
level of confidence in all of the other Members having the same 
set of intentions, first of all.
    Second, it seems to me that each of us has the opportunity 
to have dialogue with the Secretary and members of the 
Administration by calling them, having dialogue with them on 
their own.
    And it seems to me, to set up this procedure, which is 
inconsistent with the Committee Rules, is something that is 
unnecessary.
    I am happy to listen to the gentleman, but I am trying to 
keep from objecting, but----
    Mr. Gallegly. Well, I appreciate the gentleman's comments. 
And I certainly don't disagree with your statement about the 
Committee as a whole and me individually. I can completely 
accept that. I appreciate your kind remarks.
    Mr. Watt. I appreciate the gentleman acknowledging what I 
said.
    Mr. Gallegly. The issue here is that I don't intend this to 
be a precedent. This is not a special thing. That is why we 
have unanimous consent policy here, on the floor, wherever.
    And I have never asked for this before. We have a very 
limited amount of time. There is a tremendous amount on the 
agenda here. And I would just like to ask some simple, 
straightforward issues, particularly having to do with criminal 
immigrants, but not limited to, and have an opportunity to 
just, for the record, respond to it.
    It would be totally consistent with everything that we are 
doing here, only giving the Secretary an opportunity to have a 
little time to put these things together. And that is the whole 
purpose of having this hearing.
    Mr. Smith. We have had a good discussion on this subject.
    Does the gentleman from North Carolina object to the 
unanimous consent request?
    Mr. Watt. Let me continue to reserve, first, just to be 
clear on why I am intending to object, because, I mean, I think 
all of us are frustrated by the 5-minute rule. We are all 
frustrated by the short time that the record is kept open for 
responses from the Administration.
    A better route to cover that, from my opinion, Mr. 
Chairman, would be to extend the time for us to have this kind 
of back and forth from the shorter period that we have been 
having it to a longer period, so that people can go back and 
forth. But I think I am inclined to object to----
    Mr. Gallegly. Mr. Chairman, may I respond?
    I think that everybody on this Committee, particularly 
those like my good friend Mel Watt, Bobby Scott, and others, 
over the 25 years, some of us 20 years that we have served on 
this Committee, as it relates to the amount of time that 
Members have taken respectively, that the portion that I have 
taken in relation to my good friend Mr. Watt and others is not 
even a tiny blip on the radar screen.
    Mr. Watt. And for that reason, I am having real trouble 
objecting to the gentleman, because I know his intentions are 
good. But I really think we would be setting a bad precedent, 
if we did this.
    And for that reason, I must object, Mr. Chairman.
    Mr. Smith. Okay. The gentleman from California is 
recognized for 5 minutes to ask questions.
    Mr. Gallegly. Thank you very much. And while I understand 
Mr. Watt's objection, I am disappointed. But life will go on.
    My questions, however, will probably be a little more 
complex. After the hearing, I will submit some questions.
    Madam Secretary, does the DHS plan to give authorization to 
all the people who are exempt from the deportation under--the 
exempt deportation under the executive order of June 15th? And 
further, approximately how many illegal immigrations as a 
result of that will receive work permits?
    Ms. Napolitano. Clarification, there is no executive order, 
per se. This is a memorandum from myself, as the Secretary, to 
the component heads of the Department of Homeland Security, 
setting out the deferred action program.
    The answer is yes, they will be able to apply for work 
authorization.
    Mr. Gallegly. Okay, and again, we keep saying we don't want 
to talk about amnesty or whatever, but at least on a temporary 
basis this is a de facto amnesty on a temporary basis. My 
interpretation. We are all entitled to that. If you are allowed 
to stay when you are here illegally, you get to stay.
    Now, how many illegals would be given work permits?
    Ms. Napolitano. Well, again, they can apply for work 
authorization. They are going to have to meet the standards for 
being eligible for work authorization, but the linkage between 
deferred action and work authorization application goes back to 
the 1980's, that is a long-standing----
    Mr. Gallegly. Whatever the requirements are, is it going to 
be two or three people or 200,000 or 300,000 people?
    You know, we have 300 or 400 people out of work in the 
country now.*
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    *Mr. Gallegly amended this statement to ``13 or 14 million people 
out of work.''
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    Ms. Napolitano. Yes, Congressman, and there are--if I might 
back up a moment, because this was an issue that I thought 
about deeply before I wrote my memorandum, because jobs for 
Americans are very important.
    My conclusion was, and we probably differ on this, but my 
conclusion was there are lots of different ways to stimulate 
job creation. Some of them are before the Congress now, but we 
shouldn't balance the American economy on the backs of children 
who were brought here mostly----
    Mr. Gallegly. Madam Secretary, with all due respect, 
because of the time and with the help of my good friend, Mr. 
Watt, I really would like to have some succinct answers, just 
out of respect for time.
    How many people as a result of this that are illegal in 
this country will be able to work in this country while we have 
14 million Americans citizens that are without work?
    Do you have just an approximate number?
    Ms. Napolitano. I think, Congressman, I try to keep my 
answers succinct and I think----
    Mr. Gallegly. Just a number would be fine.
    Ms. Napolitano. I can tell you there is no real estimate. I 
have seen----
    Mr. Gallegly. Could be a million?
    Ms. Napolitano. We don't know.
    Mr. Gallegly. Okay, you have answered my question.
    Is it true that work site enforcement, we talk about 
border, border, border, but we don't talk about the 12, 14, 16, 
18, 22 million people that are here illegally already in the 
country. Is it true that work site enforcement is down 70 
percent over the past 3 years?
    Ms. Napolitano. Well, that answer is partially true. If I 
might explain, it is down from like 5,000 to 1,500.
    In juxtaposition, we have been able to remove 100,000 more 
felons from the country than we were before, and the number of 
I-9 audits, civil sanctions, debarments is up.
    Mr. Gallegly. Well, if you had increased the number of 
worksite enforcements, or if you had have left it, instead of 
reducing it 70 percent, I would assume that that exponentially 
would even be a better situation.
    Ms. Napolitano. Well, even if we had not made any 
adjustments for our priorities for criminals, border crossers, 
et cetera, you are still talking about a maximum of 5,000 cases 
in the past. Better trade off to say go after the employers 
themselves, through I-9s and other audits, and then go after 
the criminal.
    Mr. Gallegly. I couldn't agree with you more about going 
after employers.
    Two quick questions. This is a yes or no. Is it true that 
ICE agents are now instructed not to detain or remove illegals 
during a work site enforcement action? Yes or no, please.
    Ms. Napolitano. It doesn't permit a yes or no answer. The 
answer is, it depends.
    Mr. Gallegly. Okay, you have answered my question.
    Getting back to Mr. Sensenbrenner's question having to do 
with visas and visa overstays, we, I think, accept the fact 
that a large percentage of people that illegally come to this 
country, maybe 40 percent, never cross the southern border. In 
fact, the people that were the perpetrators of 9/11 were visa 
overstays.
    Now, having said that, to date, DHS has established visa 
security units at 19 locations with a presence in only 15 
countries. However, ICE has identified 50 high-risk posts.
    Why then does the Administration's proposed budget reduce 
funding for the visa security program for FY 2012?
    Ms. Napolitano. Yes, difficult choices had to be made, 
given the constraints of the Budget Control Act.
    We have other things that we can do to make sure that visa 
applicants are vetted against our criminal and national 
security databases. So while it is nice to have visa security 
program officers in different places, it is not something that 
is essential to the national security.
    Mr. Gallegly. Thank you very much.
    I see my time has expired, Mr. Chairman.
    And I still like you, Mel.
    Mr. Smith. Thank you, Mr. Gallegly.
    The gentleman from Virginia, Mr. Scott, is recognized.
    Mr. Scott. Thank you, Mr. Chairman.
    Madam Secretary, if the gentleman from California has 
follow-up questions with your agencies, do you anticipate any 
difficulty that he or any other Member might have in getting 
appropriate responses and clarifications to those follow-up 
questions?
    Ms. Napolitano. We endeavor to do our best to respond and 
to do so in a timely manner.
    Mr. Scott. Thank you.
    You have talked about the student visas, the student----
    Ms. Napolitano. Deferred action.
    Mr. Scott. Deferred action. August 15th, you indicated 
would be the application date. When would they expect to get 
some kind of documentation, and what would that documentation 
allow them to do?
    Ms. Napolitano. We anticipate that we will have guidance by 
the 1st of August. What we anticipate is, within a short period 
of after they send in their applications, they will receive an 
acknowledgement that their application is complete, and is 
ready to be processed.
    They will get a number, and the number will enable them to 
track their matter as it goes through the adjudicatory process.
    Mr. Scott. Well, will they be able to get on an airplane?
    Ms. Napolitano. Yes.
    Mr. Scott. With that or with the subsequent documentation?
    Ms. Napolitano. They will be input into the system. And the 
idea then is that deportation or any removal action would be 
stayed until we complete the adjudicatory process.
    Mr. Scott. Thank you.
    Can you give us the status of your department 
implementation to PREA, the Prison Rape Elimination Act, and 
whether or not your regulations will be the same as those in 
the Department of Justice?
    Ms. Napolitano. They will meet PREA standards. They will 
not be identical because our facilities are different.
    But we have already issued new standards for prison rape 
elimination, including a zero tolerance policy. We are 
following up very strongly on all allegations that are made, 
and we are going to be issuing guidelines or standards that 
meet the PREA. But they will be different than DOJ, because our 
facilities are different.
    Mr. Scott. Following up the comments from the gentleman 
from New York on port security, I understand that there is 
technology where the container trucks can drive through a 
scanner and essentially get scanned while the truck is going 
15, 20 or more miles per hour. Is that----
    Ms. Napolitano. No, the current truck scanners that we use, 
say, for example, at the border where we have thousands of 
trucks cross every day, the trucks that go through, I think it 
is 3 miles per hour.
    Mr. Scott. Is there any reason why that can't be universal? 
Why you can't do 100 percent?
    Ms. Napolitano. One hundred percent of what? Trucks or 
containers or?
    Mr. Scott. Container trucks leaving a port.
    Ms. Napolitano. Representative, I think that requires a 
longer answer than time permits. I will try to be succinct. We 
will get you some material on that, but the fact of the matter 
is that seaborne containers go through a whole different 
layered process of security that is different than land-borne 
trucks.
    Mr. Scott. What portion of containers are scanned in 
foreign ports before they leave, coming to America?
    Ms. Napolitano. It depends on the port, but, again, we use 
a risk targeting system to identify high-risk cargo.
    And high-risk cargo, let me discuss that for a moment, 
because what it means is that we have a process for certifying 
trusted shippers, trusted forwarders, others that are moving 
containers all the time to the United States and doing some 
random checking there.
    And then when we have containers that don't meet those 
kinds of standards, what we do to make sure that those 
containers are safe before they enter a U.S. port.
    Mr. Scott. I guess the final question I have in the few 
seconds I have left, can you talk about the agency's use of the 
Federal Prison Industry program?
    Ms. Napolitano. We use FPI under contract. I believe we use 
them here in D.C.
    Mr. Scott. What do you mean by ``use''?
    Ms. Napolitano. I believe we have a contract with them. Is 
there a particular issue that I can help you with?
    Mr. Scott. Yes, Federal Prison Industry is a program that 
we want to maximize the use of, because you have prisoners 
there getting job training, using the Prison Industry program 
for management purposes, encouraging them to be more likely to 
get a job when they get out.
    A lot of agencies, because of other complications, that 
Prison Industry program is not being fully utilized, and we 
wanted to make sure that the Department of Homeland Security 
was fully using the program, so that we get the best benefit. 
The utilization, the number of people in prison under the 
program has been declining over the past few years.
    Ms. Napolitano. My understanding is that we are, but I will 
be happy to verify that for you.
    Mr. Smith. Okay, thank you, Mr. Scott.
    The gentleman from Virginia, Mr. Goodlatte, is recognized.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Madam Secretary, you have made several references to 
responding to requests from this Committee, including requests 
in writing in a timely fashion. You last appeared before this 
Committee on October 26 of last year. And following that 
hearing, as required by the Rules of the Committee, a number of 
questions were submitted to the Committee and transmitted to 
you in a timely fashion, and the answers to those questions 
rolled in at 11:26 p.m. last night.
    Do you regard that 9-month time period to answer questions 
as being timely?
    Ms. Napolitano. Representative, obviously not, although it 
is before this hearing.
    Mr. Goodlatte. What good is that to us----
    Ms. Napolitano. If I can----
    Mr. Goodlatte. 11:26 p.m. last night. That is supposed to 
help the Members of the Committee prepare for this hearing?
    Ms. Napolitano. If I might, Representative. I would need to 
go back. Sometimes we are asked--we have responded and 
Committee Members don't, for whatever reason, don't get the 
response. And as they prepare for hearings, their staff asks us 
for new copies of that. I would need to look into that.
    In addition, I would like to remind the Committee, we try 
to be timely. But we have well over 100 Committees and 
Subcommittees that are submitting questions to us.
    Mr. Goodlatte. And your statement today that you answered 
these in a timely fashion is not rebutted by your failure to 
answer the questions until 9 months after the last hearing----
    Ms. Napolitano. Again----
    Mr. Goodlatte. Just a few hours before this hearing?
    Ms. Napolitano. Again, Representative----
    Mr. Goodlatte. Let me go on to a question.
    Ms. Napolitano. Well, you made a statement, I think----
    Mr. Goodlatte. No, Madam Secretary.
    Ms. Napolitano. Mr. Chairman?
    Mr. Goodlatte. We have asked and----
    Ms. Napolitano. Mr. Chairman?
    Mr. Goodlatte [continuing]. Answered that question.
    Ms. Napolitano. Mr. Chairman, may I get an opportunity to 
answer the question?
    Mr. Goodlatte. You have already answered it once.
    Mr. Conyers. Can we have regular order, Chairman?
    Mr. Goodlatte. I would definitely like regular order.
    Ms. Napolitano. Representative, I just wanted to clear up--
what I said was that we often are in the situation where we are 
resending answers to questions that were sent well before as 
staff prepare for hearings. If that didn't happen here----
    Mr. Goodlatte. That is not the case here, Madam Secretary.
    Ms. Napolitano. Well, if that is what you want us to look 
into, I would be happy to look into it.
    Mr. Goodlatte. We want you to answer the questions in a 
timely manner. That is what we want.
    Ms. Napolitano. Fair enough.
    Mr. Goodlatte. In your testimony, you state that homeland 
security begins with hometown security, and that you have 
worked to get information, tools, and resources into the hands 
of State, local, tribal, and territorial officials. How does 
canceling your 287(g) agreements in Arizona, and refusing to 
enter into them in my State of Virginia, aid hometown security? 
When you take that resource away from local law enforcement, 
can you really claim that you are working to help hometown 
security?
    Ms. Napolitano. Absolutely. The 287(g) agreements that are 
task force, not in the jails, which are very productive, but 
the task forces, the ones your refer to, are remarkably 
unproductive and very expensive.
    Of the six of the seven Arizona agreements we had on the 
task forces, they had produced zero removals in 2 years. The 
only one that was doing anything was the Department of Public 
Safety, and we already have a task force with them. They were 
fine with our cancellation.
    It costs us per removal on a 287(g) almost 10 times as much 
through Secure Communities or through the 287(g) jail model. We 
are moving to the more efficient models.
    Mr. Goodlatte. I would like to know why it is that you will 
not utilize local law enforcement to apprehend individuals that 
are illegally in the United States and then promptly move to 
remove them from his country? That is not what is happening in 
Virginia, I can assure you. It is absolutely not what is 
happening.
    Ms. Napolitano. If I might, Representative, one of the 
things we have done to replace those ineffective 287(g) task 
forces is the great expansion of Secure Communities in the 
jails themselves, the program where we refer fingerprints both 
to the criminal database and to the immigration database.
    And you will see that our ability to apprehend and remove 
criminals from the country has actually gone up dramatically 
because of that.
    Mr. Goodlatte. Madam Secretary, does this mean, your 
criticism of 287(g) and your cost analysis, does this mean that 
you will remove from the Department of Homeland Security's 
website the section that refers to 287(g) success stories?
    Ms. Napolitano. You know there may be some success stories, 
but when you look at the numbers, they----
    Mr. Goodlatte. Why are you touting them if they are success 
stories in a program that you think is otherwise flawed?
    Ms. Napolitano. I would say I would tell the people who are 
working the website, take it down.
    Mr. Goodlatte. Yes, you----
    Ms. Napolitano. It doesn't work. The program is expensive, 
and it doesn't work the way Congress intended.
    Mr. Goodlatte. According to the GAO, over time, Federal 
surveys have consistently found that the Department of Homeland 
Security employees are less satisfied with their jobs than the 
government-wide average. Out of 240 components ranked by the 
Federal Employee Viewpoint Survey throughout the Government, 
ICE ranked 222; FEMA ranked 231; TSA ranked 232; and a category 
collectively called ``All other components'' ranked 224.
    You have a serious morale problem that has only gotten 
worse since you have taken over. I think you would agree that 
low morale in these positions has the potential to impact how 
effectively these public servants do their job.
    What is the cause of this morale problem? Are there any 
morale problems due to the policies implemented by this 
Administration that prevent agents from doing their jobs? And 
what are you doing to address these serious morale problems?
    Ms. Napolitano. Yes, the morale issue is one that I am 
quite concerned about. We want our employees--good morale, they 
are effective, they are well trained. We have looked into those 
numbers.
    We have determined that one of the real sources was that 
our first line or mid-level supervisors were promoted without 
training on how to actually be a supervisor. That caused a lot 
of discontent.
    There are other reasons as well. I meet regularly now, 
Representative, with our component heads and have directed 
them, in turn, to take all action necessary to do what we must 
to try to bring that morale up.
    We also brought in some experts from OPM to help us, and 
other places. And we have looked at other departments that were 
able to go from low to high. And techniques or things that they 
did from a management standpoint, we intend to deploy those as 
well.
    Mr. Goodlatte. Mr. Chairman, my time is expired. I do have 
additional questions, which I will submit to the Chairman in 
writing, and I am sure that he will submit them to you.
    And, Madam Secretary, I hope you will answer them in a real 
timely fashion, not 9 months after we submitted them, like the 
last time. Thank you.
    Ms. Napolitano. I understand your point.
    Mr. Smith. Thank you, Mr. Goodlatte.
    Madam Secretary, what do you consider to be timely? Thirty 
days? Two weeks?
    Ms. Napolitano. Some it is 30. Some it is 60. It depends on 
the question. Some requires multiple departments. Some requires 
new sorts of information that we haven't collected before.
    Mr. Smith. So 60 at the outset, if multiple departments 
were to be involved in the response?
    Ms. Napolitano. I would commit that we will aim to 60, yes.
    Mr. Smith. And shorter time for----
    Ms. Napolitano. And if we have to have more, we will tell 
you why.
    Mr. Smith. Okay, thank you, Madam Secretary.
    The gentleman from North Carolina, Mr. Watt, is recognized.
    Mr. Watt. Thank you, Mr. Chairman.
    And I think this last exchange may illustrate the concern 
that I was expressing about the gentleman from California's 
unanimous consent request. I was feeling really bad about it 
until we got into this exchange, and the responses of the 
Secretary make it clear that putting the Administration or any 
of these departments in a 30-day straitjacket, as the unanimous 
consent request would have done, is just not viable, although I 
fully support the Administration responding to our oversight 
and responding to legitimate questions that are raised.
    I also want to express my gratitude for your cutting back 
on the 287(g) program. I think it was the least successful, 
biggest abomination of any program that I have observed in our 
local communities, to turn local law enforcement away from 
their primary responsibilities into, many cases, just absolute 
witch hunts, doing something that is the primary responsibility 
of the Federal Government.
    In fact, it so biased me against ICE, it is hard for me to 
say something nice about it. So now I have to go and say 
something nice about it.
    Ms. Napolitano. Can I write it down?
    Mr. Watt. Yes. Actually, I think the efforts that you have 
made in the area that Mr. Goodlatte and I are involved in, in 
the intellectual property area, of dealing with counterfeit 
goods and things online, I think while there have been some 
problems, obviously, I think ICE has done a commendable job.
    And to acknowledge the fact that there can be successes and 
failures at the same time, I have already acknowledged some of 
the failures, but I will just point out the success in North 
Carolina that led to arrests and charges of trafficking in 
counterfeit drugs, specifically Cialis and Viagra pills that 
were circulating that were counterfeit in North Carolina. And 
ICE did an exceptionally good job.
    Now, having said that, without even asking a question, let 
me say that I also applaud the Administration's decision 
regarding the young people who are here under the Dream Act 
category, so to speak. If anybody, regardless of what your 
position is on immigration, if anybody deserves to be treated 
as if they were not criminals it is kids who were brought here 
at 1 month, 2 years, have no connection to the country from 
which they were brought, had no responsibility for bringing 
themselves into this country.
    Their parents, if you consider them irresponsible or 
renegades, we certainly shouldn't pass that along to their 
children. The only place that they know as home has been the 
United States of America. If anybody deserves the benefit of 
this policy, it is these young people.
    And I don't know how anybody can argue with that. I just 
hope you get this program implemented and all the rules in 
place quickly, so that these kids can get into a normal 
pattern.
    They have been educated here. The notion that we would 
invest all of this money in them and then send them back to a 
country that they had no connection to just seems to me to be 
absolute folly. And so I want to publicly applaud the 
Administration and you, Madam Secretary, for this change in 
policy.
    And I hope that at some point we will get around to setting 
up some additional rational immigration policies to set up a 
comprehensive immigration policy in our country, to get them 
out of this temporary status that you have been able to justify 
for them.
    With that, Mr. Chairman, maybe I will submit some questions 
and give them 30 to 60 to 90 days to respond also.
    And I do want to encourage you to respond to Mr. Goodlatte 
and my friend from California there, their questions, as timely 
as you can.
    Mr. Chairman, I yield back.
    Mr. Smith. Thank you, Mr. Watt.
    The gentleman from Ohio, Mr. Chabot, is recognized for his 
questions.
    Mr. Chabot. I thank the Chairman.
    And, Madam Secretary, just a few questions. I am trying to 
see around Mr. Chaffetz's head here, but it is all right.
    I would like to ask about how our Customs and Border Patrol 
is handling counterfeit products coming into our country. 
Intellectual property in the United States is responsible for 
spurring new industry and developing useful technology and 
creating jobs. And I know we are all focused on how we can get 
more jobs in this country.
    However, many bad actors are replicating trademarked 
American goods and then shipping them back to the United States 
for sale here. These fake products have a negative impact on 
the economy and, in fact, can be dangerous, oftentimes, to the 
health and safety of the American people.
    The Customs and Border Patrol agents, they generally make 
the first contact when these shipments are coming into the 
country, and it is critical that your officers are able to 
communicate valuable information with the rights holders, the 
actual company here that would be producing legitimate 
products, not the fake products that are coming in.
    Those are the best individuals who are suited to 
authenticate the products, to make that they are actually real 
or that they are fake.
    And that is why Congressman Poe, Ted Poe from Texas, and I 
have introduced the Foreign Counterfeit Protection Act, which 
is H.R. 4216.
    And I was wondering, perhaps your staff may have brought 
that to your attention, or if you are at all familiar with the 
legislation, and, if so, whether we can count on your support 
for it.
    Ms. Napolitano. Well, I am not directly familiar with the 
legislation, but I am familiar with the issue, which is when we 
find counterfeit products, there had been, this is what I have 
been told, a pre-existing legal opinion that we were barred 
from telling the actual holder of the trademark about the 
infringing product.
    My understanding is also that that has been revised and 
changed, so that that barrier no longer exists.
    Mr. Chabot. Yes, and that is the very issue, and it has 
been improved somewhat. There are still some problems with it. 
We would like to work with you on that, because, as I said, it 
is very critical to creating jobs and protecting the rights of 
the people here that are actually producing the legitimate 
products.
    I was encouraged to see that your agency issued an interim 
regulation, that is probably what you were referring to, in 
April, to allow your officers to share information about 
suspected counterfeits to the trademark owner to help CBP 
determine if the product is, in fact, counterfeit or not.
    However, I am concerned about the interim. it has a 7-day 
waiting period, whereby importers are given the opportunity to 
demonstrate that the merchandise does not bear a counterfeit 
mark. And if the impostor demonstrates this, then there can be 
no meaningful disclosure to the trademark owner and the product 
will not be denied entry.
    While I understand that your agency came up with this 
procedure as a way to protect the interests of grey market 
importers, I am concerned that, thus far, your agency has 
unwittingly created potentially a giant loophole for the most 
unscrupulous of counterfeiters. What makes you think that a 
person willing and able to create, for example, a fake product 
that looks real will not use the 7-day period to produce phony 
documents and fake certificates in an attempt to show that the 
counterfeits are genuine?
    And CBP might not be able to seek help from one source who 
knows for sure whether the product or documents are real and 
that is the owner of the trademark.
    This new procedure, whereby the deference is to the 
importer and not the trademark holder, invites, I think, 
potentially, that type of deception creating a loophole, as I 
indicated, to actually usher counterfeits into the country. So 
we would certainly appreciate your looking into that.
    Ms. Napolitano. Yes, I think that is a very fair point, and 
I will be happy to not only look at it, but work with you on 
this problem.
    Mr. Chabot. Okay. And, then, finally, Madam Secretary, I 
would like to turn now to another recent issue with 
counterfeits coming across the border.
    In the latest attempt to essentially rip off U.S. 
trademarks, it appears that certain foreign criminals have 
found a new approach, that of counterfeit coupons. Last week, 
there was a police raid in Arizona where police confiscated $2 
million worth of assets in a home-based business, which was 
responsible for producing and distributing counterfeit coupons 
on websites, affecting more than 40 U.S. consumer product 
manufacturers, including a company based in my district, that 
is Proctor & Gamble.
    And I will wrap it up quickly here, because I know I am 
almost out of time.
    The alleged leader of the operation, Robin Ramirez, is 
accused of bringing in these coupons from overseas in large 
quantities and selling them on her website for 50 percent of 
the face value. Police said the scope of this investigation has 
an economic impact in the hundreds of millions of dollars in 
losses, and I would just ask you to please look into that 
matter and make sure your agency is doing everything possible 
to, again, protect our businesses here so that we can actually 
create jobs.
    Ms. Napolitano. Yes, I am happy to do so.
    Mr. Chabot. Thank you very much.
    Mr. Smith. Thank you, Mr. Chabot.
    Does the gentleman from Virginia have a unanimous consent 
request?
    Mr. Goodlatte. Yes, Mr. Chairman. I would ask that the 
printout that we have here from the department's website, under 
the ICE section entitled ``287(g) success stories,'' which has 
printed out six pages of very, very small print, scores of 
success stories with regard to the 287(g) program, be made a 
part of the record.
    Mr. Smith. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Smith. Thank you, Mr. Goodlatte.
    The gentlewoman from California, Ms. Lofgren, is 
recognized.
    Ms. Lofgren. Thank you, Mr. Chairman. Before asking any 
questions, I would like to ask unanimous consent to put some 
material in the record.
    Some have questioned the Secretary's legal authority to set 
immigration enforcement priorities and exercise prosecutorial 
discretion on a case-by-case basis. And so I would like to 
enter into the record the Supreme Court's recent decision that 
explains immigration officials have broad discretion, including 
whether it makes sense to pursue removal at all; a memorandum 
by the Congressional Research Service analyzing the Secretary's 
memorandum; a May 28, 2012, letter from 100 law professors to 
our President addressing the executive's authority to grant 
administrative relief; a November 4, 1999, bipartisan letter 
establishing prosecutorial discretion as well-established and 
well-grounded in case law; and a November 17, 2000, memorandum 
by then INS Commissioner Doris Meissner laying out the 
authority for exercising prosecutorial discretion.
    Mr. Smith. Okay, without objection.*
---------------------------------------------------------------------------
    *The submissions referred to are inserted in the Appendix. See 
pages 80 to 209.
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    Ms. Lofgren. I would also ask unanimous consent to put in 
the record statements from the faith community, including the 
Evangelical Immigration Table, the U.S. Catholic Conference of 
Bishops, the Evangelical Lutheran Church in America, and the 
Hebrew Immigrant Aid Society, in support of the President's 
Dream Act announcement.
    Mr. Smith. Okay, without objection.**
---------------------------------------------------------------------------
    **The submissions referred to are inserted in the Appendix. See 
pages 210 to 228.
---------------------------------------------------------------------------
    Ms. Lofgren. As well as letters from labor leaders in 
support of the President's Dream Act announcement.
    Mr. Smith. Okay, without objection.***
---------------------------------------------------------------------------
    ***The submissions referred to are inserted in the Appendix. See 
pages 229 to 245.
---------------------------------------------------------------------------
    Mr. Smith. The gentlewoman is recognized for 5 minutes for 
questions.
    Ms. Lofgren. Thank you, Mr. Chairman.
    I am mindful that we are joined today in this hearing by 
Eliel Acosta, who was brought to the United States, by her 
parents to the United States, when she was 3 years old; Hareth 
Andrade, who was only 8 when he was brought to the United 
States; Excy Cuardado, who was only 3 when he was brought to 
the United States; Karen Vallejos, who was just 5 years old 
when she brought to the United States.
    These are wonderful young people who have achieved great 
things in their education. Every time I go to speak to a 
school, whether it is people getting their Ph.D. in Physics or 
whether it is a law school or whether it is a high school, some 
young person will come up and say, ``I am a Dream Act kid.''
    And of all of the people who deserve our consideration, it 
is these young people. So I would like to thank you, Secretary 
Napolitano, for the action that you have taken to allow these 
young people I think of as de facto Americans--I mean, this is 
their country, but the papers aren't in order--for taking the 
step that you did that will allow them to live normal lives 
until we get our act together here in Congress. Thank you very 
much for that.
    Ms. Napolitano. Thank you, Representative.
    Ms. Lofgren. I would like to note that, in the process of 
getting our act together, the House did, in fact, pass the 
Dream Act in December of 2010, and it got 55 ``yes'' votes in 
the Senate. But because of their crazy rules, we couldn't get 
60 votes to pass it.
    So, hopefully, we will have an opportunity, once again, to 
pass that Dream Act, and also to reform the law top-to-bottom. 
It does need reform in so many different ways.
    I have a concern that I would like to raise about the 
implementation of the applications, and it is not about your 
department, it is about people who would prey on young people.
    Every time there is announcement, there are unscrupulous 
people who will go and try and charge people, notary publics 
who will say you need to pay us this or that, and I am hopeful 
that the department will take some steps.
    I mean, there is no reason why a de facto American who is 
an 18-year-old kid on the honor roll needs to go pay some fee 
to a lawyer or to a notary public or anybody else to get this 
application underway.
    Have you thought about some efforts we might make to make 
sure that unscrupulous people don't take advantage in this 
situation?
    Ms. Napolitano. Representative, yes, and the whole issue 
of, say, notarios fraud, which has been a perennial problem in 
immigration, we are trying to address it in a couple of ways: 
outreach, working with different faith-based and advocacy 
groups, and with student groups and others. The application 
itself is available online. It will be based on existing 
application forms. There will be a fee associated with the 
application, as I think all of us understand.
    Ms. Lofgren. That is fine.
    Ms. Napolitano. But we are going to do that, and then I am 
going to reach out to the Justice Department themselves to see 
if, through the U.S. Attorneys' Office, they can help us in 
this regard.
    Ms. Lofgren. I am glad to hear that, and I think it is 
something that Members themselves can help on in their own 
communities.
    Now, I wanted to talk a little bit about the history of the 
Dream Act, because, for many years, we worked together on this. 
And I will never forget the late Paul Gillmor, who was a very 
conservative man. There are many things we didn't agree on.
    But he called me and described a young man in his little 
town in Ohio who was the valedictorian of the high school. He 
was the quarterback on the football team. And he went to go get 
a document, and it was only then that he was told that he 
wasn't born in the United States.
    He said, ``Well, I will straighten this out. I will go down 
to the Government, and have the Government straighten this 
out.'' So he went down the day before Christmas, and they put 
him in handcuffs, and the little town was outraged.
    And Congressman Gillmor understood. He did a private bill, 
but he also understood this issue in a way what was visceral. 
And that conservative Republican put his name on the Dream Act 
as a cosponsor.
    So I am hopeful that as we move forward, we can get the 
kind of consensus that we once had on this issue, and that we 
are able to do the right thing, not only for these young 
people, but for our country, because they are a part of a rich 
future for our country.
    Thank you, Madam Secretary.
    Mr. Smith. Okay. Thank you, Ms. Lofgren.
    The gentleman from Virginia, Mr. Forbes, is recognized.
    Mr. Forbes. Thank you, Mr. Chairman.
    Madam Secretary, thank you for being here. And I think we 
all know that there are two issues here. One is whether the 
substance of what is being done is appropriate. And the second 
one is that, at least up until a short period of time ago, many 
of us felt we were still a Nation of laws. And we want to make 
sure that we do what we do in a legal manner.
    I know it is always dangerous to put too much credence in 
the words that our elected officials say, but I want to come 
back to something the Chairman said earlier, because this is 
what the President said.
    He said, with respect to the notion that I can just suspend 
deportation through executive order, that is just not the case, 
because there are laws on the books that Congress has passed. 
And went on and said, there are enough laws on the books by 
Congress that are very clear in terms of how we have to enforce 
our immigration system, that, for me, through simply an 
executive order, to ignore those mandates would not conform 
with my appropriate role as President.
    That he said on March 28, 2011.
    Now my first question for you, so that we can understand, 
to your knowledge, were there any laws that changed between 
March 28, 2011, and today that would change what the President 
said?
    Ms. Napolitano. No.
    Mr. Forbes. Do you feel that the President was inaccurate 
at what he stated on March 28, 2011?
    Ms. Napolitano. Well, I think, Representative, I think it 
is important to understand what actually occurred here.
    Mr. Forbes. No, I am just asking what the President stated 
on March 28, 2011, regarding an executive order. Was he correct 
in that statement on that date?
    Ms. Lofgren. Would the gentleman yield?
    Mr. Forbes. I will when I finish my time.
    Ms. Napolitano. As a general matter, yes.
    Mr. Forbes. So as a general matter, he was correct? No laws 
have changed since that time.
    Now, I notice that you said that the memorandum that you 
issued was not an executive order, per se. I don't know. I am 
just harking back to my old law school days and kind of the 
bible that we had was Black's Law Dictionary.
    And I look at executive order and the definition there. It 
says, ``An order issued by or on behalf of the President, 
regarding a constitutional provision, law or treaty.''
    Was this memorandum that you issued issued on behalf of the 
President or under the authority of the President?
    Ms. Napolitano. It was under my authority as the Secretary, 
setting the priorities for the enforcement of the Nation's 
immigration laws in an effort to deal not only with these 
compelling cases, but the continued effort to clear the backlog 
to deal with the more serious----
    Mr. Forbes. Is it your opinion, Madam Secretary, that the 
authority that you issued this under as your authority has 
greater authority than the President of the United States?
    Ms. Napolitano. I think, as Representative Lofgren has put 
in the record, there is a lot of authority going far back about 
the ability of a prosecutor to set priorities.
    Mr. Forbes. That is not my question, though, in all due 
respect. And I appreciate prosecutorial discretion when 
prosecutors are able to do that on a case-by-case basis.
    My question is a very simple one: Do you feel that you have 
greater authority than the President of the United States on 
this matter?
    Ms. Napolitano. Well, this is a case-by-case determination. 
This is a case-by-case determination designed very carefully to 
be seated clearly within prosecutorial discretion precedents. 
It is not----
    Mr. Forbes. Madam Secretary, the President announced this 
policy from the Rose Garden. And I know you are saying that 
this was issued by you. But it was the President that announced 
the policy as President of the United States.
    Black's Law Dictionary says very clearly, if an order is 
issued by or on behalf of the President regarding a 
constitutional provision, law, or treaty.
    Are you saying this was issued not in conjunction with the 
President of the United States? You didn't have consultation 
with him about issuing this?
    Ms. Napolitano. This decision came from the Department of 
Homeland Security. The President, obviously, approved of the 
decision, which is what he announced at the Rose Garden. But 
the decision had already been announced that morning by myself.
    Mr. Forbes. But the President announced the policy. The 
President is the one who appointed you, is that not correct?
    Ms. Napolitano. That is true.
    Mr. Forbes. And you take your authority directly from the 
President and the appointment he made; is that not correct?
    Ms. Napolitano. And the Constitution and laws of the United 
States, that is true.
    Mr. Forbes. And you hold a constitutionally directed 
office. Can you tell me what part of Article 2 endows your 
authority?
    Ms. Napolitano. I would go to Section 3, which is the 
obligation to carry out the laws faithfully, to execute the 
laws.
    Mr. Forbes. And once again, it is, as I understand it, the 
President of the United States, you don't dispute the fact that 
he was correct when he said he didn't have authority as 
President of the United States to issue an order to do what you 
have now issued as Secretary of Homeland Security, but you feel 
that you have that authority and that capability to do.
    Ms. Napolitano. We are well-seated in the law; that is 
correct, Representative.
    Mr. Forbes. And again, do you concede that the President 
did not have the authority to issue the order that you issued; 
correct?
    Ms. Napolitano. That is not what I said. I said an 
executive order from the President was not involved.
    Mr. Forbes. But the President didn't have authority--could 
not have issued an executive order, according to what you said 
and what the President said, correct?
    Ms. Napolitano. Could he have waved a magic wand and by 
huge category just said, everybody is home-free? No. Can a 
prosecutor's office say, on a case-by-case basis, we are going 
to defer action? Yes.
    Mr. Forbes. Could he have issued an----
    Ms. Napolitano. Yes.
    Mr. Forbes. Executive order to do what you did?
    Ms. Napolitano. Yes.
    Mr. Forbes. Mr. Chairman, thank you.
    Mr. Smith. Thank you, Mr. Forbes.
    The gentlewoman from California, Ms. Waters, is recognized.
    Ms. Waters. Thank you very much,
    I yield to Ms. Lofgren 30 seconds.
    Ms. Lofgren. Thank you.
    I just wanted to--the President's statement has been 
quoted, but only partially, because the rest of the statement 
is: Now what we can do is prioritize enforcement since there 
are limited enforcement resources and say we are not going to 
go chasing after this young man or anybody else who has been 
acting responsibly and would otherwise qualify for legal status 
if the Dream Act passed.
    So I think that rest of the statement is important.
    I thank the gentlelady for yielding.
    Ms. Waters. Thank you very much.
    Reclaiming my time, first, Madam Secretary, I am pleased 
that you are here. And I want to congratulate you. I don't care 
who did deferred action, whether it was you or the President. I 
am just pleased that it was done. It is the right thing to do. 
It is the fair thing to do. And I happily got on the telephone 
and called many of my friends to tell them, who were feeling so 
at risk having been brought to this country at a very early age 
and then finding that they could not participate fully.
    So again, thank you, thank you, thank you.
    Now, having said that, I want to ask you about the H-1B 
visa program. We have a GAO report entitled, ``Reforms Are 
Needed to Minimize the Risks and Costs of Current Program.'' 
You know, there is conflict in opinions, I guess even in the 
President's jobs panels about this program.
    But I am concerned about what is said in this report. For 
example, and I am going to read directly from it: Restricted 
agency oversight and statutory changes weaken protections for 
U.S. workers. Elements of the H-1B program that could serve as 
worker protections such as requirement to pay prevailing wages, 
the visas temporary status, and the cap itself, are weakened by 
several factors. First, program oversight is fragmented and 
restricted.
    It goes on to talk secondly about the H-1B program lacks a 
legal provision for holding employers accountable to program 
requirements when they obtain H-1B workers through a staffing 
company.
    And it describes these staffing companies.
    And thirdly, statutory changes made to the H-1B program 
have, in combination and in effect, increased the pool of H-1B 
workers beyond the cap and lowered the bar for eligibility.
    Here is my concern. You know, I know that we try sometimes 
to have all things all ways in this country when we are trying 
to help people and companies, et cetera. We have an employment 
program in America. We have some serious education problems.
    We are told by those who try to protect the program and 
expand the program that we have occupations that are 
desperately needed to do some of the jobs that are needed, 
perhaps in Silicon Valley and some other places. And they have 
to look to importation of workers to do that.
    But also, some of us maintain that many of these companies 
have the kind of campuses that should include more training, 
more development. And we want our education system to put more 
people in the STEM pipeline and all of that.
    So, with these kind of concerns, what can you do to ensure 
that the oversight that is needed is done? And those of us here 
at this level of Government making public policy, we have to 
weigh in on whether or not we want to continue to support, 
expand, or what have you.
    But what role do you play in this oversight?
    Ms. Napolitano. Representative, I think I am not personally 
familiar with that GAO report, but I will follow up, and we 
will follow up with you on what we have done in response and 
pursuant to the recommendations in it.
    Ms. Waters. Thank you very much. I look forward to it.
    I yield back the balance of my time.
    Mr. Smith. Thank you, Ms. Waters.
    The gentleman from Iowa, Mr. King, is recognized.
    Mr. King. Thank you, Mr. Chairman.
    And thank you, Madam Secretary, for your testimony here 
today. A number of curiosities have arisen, listening to your 
responses. And one of them is, did you have discussions with 
President Obama with regard to the policy within the June 15 
memorandum prior to the issuing that decision?
    Ms. Napolitano. I did not.
    Mr. King. Or with members of the White House that would 
have direct access to the President?
    Ms. Napolitano. I informed the White House prior to the 
release of the memorandum that that was my intent to do so. But 
the internal meetings that we worked on and how we developed 
the program started in early May.
    Mr. King. Does that mean that your staff had communications 
with White House staff with regard to this, and you had a sense 
that the President supported this decision?
    Ms. Napolitano. Yes, they raised no objection to my intent 
to prioritize cases in the fashion that we have.
    Mr. King. Were you surprised when you issued the memorandum 
that the President had a press conference scheduled within 
hours?
    Ms. Napolitano. No.
    Mr. King. That was coordinated with the DHS and the White 
House?
    Ms. Napolitano. I don't think it was coordinated, but it is 
a major announcement as to how we are prioritizing immigration 
enforcement, and it is appropriate for the President to speak 
to it.
    Mr. King. And you pointed out Article II, Section 3 in the 
Constitution, and thought I had that memorized, and I looked it 
up, and I think I did. ``He shall take care that the laws be 
faithfully executed.'' I believe that is the section you are 
referring to when you assert your responsibility under the 
Constitution.
    Ms. Napolitano. That is one of them, yes. A primary one, 
yes.
    Mr. King. And if Congress is going to direct--Congress 
writes the laws, the President has been clear on that. I think 
you agree with the statement the President made, even though it 
is uncomfortable to see that contradiction today.
    But if Congress is to write a law that directs the 
executive branch to take care that the laws be faithfully 
executed, how would we write that bill if we wanted those laws 
enforced that you have decided now will not be.
    Next question will be behind this one.
    Ms. Napolitano. Well, I can't speculate as how you would 
write that, but I would simply say, based on my history as a 
prosecutor, there are lots of laws on the books within the 
framework of which prosecutors make----
    Mr. King. We understand prosecutorial discretion here. 
There have been many discussions on it. When I look through the 
reference to prosecutorial discretion on the June 15 memo, I 
see it mentioned four times in here.
    I see the individual basis mentioned six or seven times. It 
looks like almost as if this is written anticipating the 
constitutional objection that I assure you I will bring.
    There is a separation of powers. And the executive branch 
cannot legislate by executive order, by memorandum. I accept 
Mr. Forbes' definition of executive order. But we cannot allow 
the Article II executive branch legislate by executive order, 
we must stand and assert this legislative authority that we 
have.
    And as I read this memorandum, you say in it, only the 
Congress acting through its legislative authority can confer 
these rights. But yet you have directed the director of USCIS 
to issue work permits for people who fit within four classes.
    This isn't an individual directive. It establishes four 
classes within it. And it directs USCIS to issue a work permit 
that does not exist.
    And our visas and work permits are creations of Congress, 
not the executive branch.
    And I would ask you, will you rescind this before we have 
to take this to court?
    Ms. Napolitano. Representative, I will not rescind it. It 
is right on the law. It is the right policy. It fits within our 
prosecutorial priorities. And although it came out of the 
Department of Homeland Security, let me say that President is 
foursquare behind it, embraces this policy as the right thing 
to do.
    Mr. King. The President, foursquare in front of the 
Constitution, challenged it by myself and many Members of this 
Congress, we have to assert this authority. The Founding 
Fathers envisioned that each branch of Government would 
carefully protect the authority vested within this 
Constitution. And when you cross those lines and those bounds, 
and there is a whole list of things that have been done by this 
President, this one is the most clear.
    I accepted the prosecutorial discretion when it dealt with 
individuals. I do not when it deals with groups of people that 
are created by a memorandum. And I do not when it deals with a 
work permit that is ordered to be issued that doesn't exist in 
the United States Code. And that is the province of Congress.
    So I thank you for being here today, but we will see each 
other down the line in litigation.
    Mr. Smith. Thank you, Mr. King.
    The gentleman from Puerto Rico, Mr. Pierluisi.
    Mr. Pierluisi. Thank you, Mr. Chairman.
    Welcome, Madam Secretary. Before I address the topic that I 
would like to discuss, let me welcome the young Hispanics who 
are here with us this morning.
    And let me tell you, what you have seen, you have seen 
Secretary Napolitano standing firm on the deferred action 
policy that the Federal Government is about to implement. That 
means that your dreams are very much alive.
    And now, Secretary, as you probably expected, I want to 
raise the same issue with you this morning that we discussed 
the last time you appeared before the Committee, namely the 
drug-fueled public safety crisis in Puerto Rico.
    First, I want to express my profound gratitude to you and 
your team for traveling to Puerto Rico last week in order to 
investigate the situation first hand and to meet with Governor 
Fortuno and myself. I think our meetings were positive and 
productive, and I hope you agree.
    On Tuesday, I wrote you a letter, following up on your 
visit. In addition to thanking you for your visit, I noted that 
your presence in Puerto Rico underscored the Federal 
Government's commitment to working with local law enforcement 
to enhance and expand our efforts to combat drug trafficking 
and related violence on the island.
    I said that I was heartened to hear you declare that Puerto 
Rico's public safety crisis has your full attention. And that 
our motto moving forward will be, let's fix this.
    I also expressed agreement with your statement that the 
definition of success should be significant and sustained 
reduction in the number of homicides committed on the island.
    I think we all recognize the need to act with a sense of 
urgency in light of the severity of the situation. In my 
letter, I strongly endorsed your plan to promptly develop a law 
enforcement strategy specifically tailored for Puerto Rico and 
the neighboring U.S. Virgin Islands.
    I believe this strategy will ensure that our efforts are as 
well coordinated and effective as possible and will help to 
identify gaps in the current approach that can be filled.
    I respectfully ask that this strategy be coordinated with 
the Department of Justice since DOJ personnel are working side 
by side with your men and women on the front lines of this 
fight.
    Finally, I note that any meaningful strategy will require a 
reasonable allocation of personnel and resources, whether on a 
temporary or an enduring basis. In the 5-year period between 
2007 and 2011, the number of homicides nationwide fell by 20 
percent. Yet in that same period, the number of murders in 
Puerto Rico rose by over 55 percent.
    Nevertheless, the Federal law enforcement footprint on the 
island has not evolved in the face of these profoundly changed 
circumstances.
    It is my fervent hope that the forthcoming law enforcement 
strategy will be action-oriented, and will recognize that an 
enhanced Federal response is required, if we are to be 
successful in this shared endeavor.
    So, Madam Secretary, I just want to give you the 
opportunity to tell me and my fellow Members of this Committee 
in broad terms how you envision moving forward on this issue.
    And I thank you again.
    Ms. Napolitano. Well, thank you, Representative.
    Yes, I went to Puerto Rico, because I am troubled by a 
number of things in terms of the crime situation there, but the 
homicide rate being twice that of Mexico is a real eye opener.
    And so on my return, I have already met internally with our 
staff. We have appointed an internal person to help coordinate. 
We will reach out to DOJ and, in particular, to the U.S. 
Attorney in Puerto Rico, who is very familiar with the local 
situation.
    So I think it is going to take all of us working together 
to get a handle on this and get that crime rate down, but that 
is what our intent is.
    Mr. Pierluisi. Thank you so much. I yield back.
    Mr. Smith. Thank you, Mr. Pierluisi.
    The gentleman from Texas, Mr. Gohmert, is recognized.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank you, Madam Secretary, for being here.
    When you were here before, back in October, we discussed 
Mr. Elibiary, and the week before he had been online using the 
secret security clearance that you had given him when you 
placed him on the Homeland Security Advisory Council. And he 
had used that to access the State and local intelligence 
community of interest classified material database and 
downloaded material. And we had information that he had shopped 
that, trying to claim Texas was Islamaphobes because they were 
concerned about radical Islamists.
    But since that time, you told me personally at that time 
that you were going to look into it. You weren't going to 
appoint somebody, you, yourself, were going to look into it.
    So what did you find out?
    Ms. Napolitano. I found out that the statements that have 
been made in that regard are false. They are misleading and 
objectionable. And I think they are wrong.
    Mr. Gohmert. Okay, then, madam, you need to know that you 
have people who are lying in your department, because Texas 
Department of Public Safety has been told the investigation was 
done. He did access the classified information with his own 
private computer. He did download the documents that we knew he 
did. And the one thing they could not confirm, because they 
didn't talk to the reporter or the people that he shopped the 
story to, they couldn't confirm that he shopped the story.
    But are you saying before this Congress, right now, that as 
Secretary of Homeland Security, that it is a lie that Mohamed 
Elibiary downloaded material from a classified website using 
the secret security clearance you gave him? Are you saying that 
is a lie?
    Ms. Napolitano. I am saying that isn't accurate. That is 
correct.
    Mr. Gohmert. All right, what is inaccurate about that?
    Ms. Napolitano. A number of things.
    First of all, we have several people on the Homeland 
Security Advisory Committee who aren't Muslim. They have been 
helping law enforcement for a long time. Mr. Elibiary himself 
was recognized by the FBI for his----
    Mr. Gohmert. I didn't say anything about that. So if you 
could confine your answer to what I said and what you find 
misleading in it.
    Ms. Napolitano. Well, one of the things I find misleading 
is that he somehow downloaded classified documents.
    Mr. Gohmert. So you are saying that the State and local 
intelligence community of interest database is not classified?
    Ms. Napolitano. I am saying that he, as far as I know, did 
not download classified documents, and I----
    Mr. Gohmert. Now one of the games that gets played 
sometimes by people who come up here and testify is that they 
have somebody not provide them adequate information so that 
they can come in here and say, so far as I know, not to my 
knowledge, that kind of thing, and they obscure the truth.
    Has Elibiary's status on the Homeland Security Advisory 
Council changed?
    Ms. Napolitano. No.
    Mr. Gohmert. It did not bother you that he accessed 
information?
    Ms. Napolitano. He accessed some information. What bothers 
me, quite frankly, are the allegations that are made against 
anyone who happens to be Muslim.
    Mr. Gohmert. Well, the allegations are not because he is 
Muslim. You follow me around the world. You see me hugging 
Muslims around the world, because the ones I hug are our 
friends.
    And this Administration seems to have a hard time 
recognizing members of terrorist groups who are allowed into 
the White House. You are aware of that happening, aren't you?
    Ms. Napolitano. Absolutely not.
    Mr. Gohmert. So, all right. The evidence speaks for itself. 
Obviously, you are kept in the dark on a lot of these things.
    Ms. Napolitano. Representative----
    Mr. Gohmert. Are you aware of what the Freedom and Justice 
Party is in Egypt?
    Ms. Napolitano. Representative----
    Mr. Gohmert. Are you aware of what the Freedom and Justice 
Party is in Egypt?
    Mr. Conyers. Mr. Chairman, could we have regular order?
    Mr. Gohmert. It is a simple question. It does not afford an 
interruption.
    Is she aware of what the Freedom and Justice Party is in 
Egypt?
    Mr. Smith. Would the Secretary respond to the question?
    Ms. Napolitano. Yes.
    Mr. Gohmert. Are you aware that Mr. Elibiary's foundation 
that has had their charter pulled because they failed to 
provide the information that the Government requires to keep 
their 501(c)(3) status? Are you aware that that was, before the 
501(c)(3) status was pulled, called the Freedom and Justice 
Foundation?
    Ms. Napolitano. Representative, I am not going to get into 
a debate about some of the----
    Mr. Gohmert. I am asking you if you know simple fact.
    Ms. Napolitano. I would like to--I would like to----
    Mr. Gohmert. You say you are not going to get into debate. 
I don't want to debate. This is a question and answer.
    Are you aware of that being the name of his foundation that 
has now had the 501(c)(3) status pulled?
    Ms. Napolitano. The insinuation that I----
    Mr. Gohmert. Could you answer the question? There is no 
insinuation.
    Mr. Conyers. Mr. Chairman, can we have regular order?
    Mr. Smith. I will allow the witness to answer the question, 
yes.
    Mr. Gohmert. Please, answer just the question.
    Ms. Napolitano. Representative, with all respect, I believe 
you are insinuating that I and members of my staff----
    Mr. Gohmert. I am not insinuating anything. I am asking a 
direct question.
    Ms. Napolitano. Well, Mr. Chairman----
    Mr. Gohmert. You are not answering the question----
    Mr. Conyers. Mr. Chairman----
    Mr. Gohmert. The question is very simple. Were you aware of 
his Freedom and Justice Foundation----
    Mr. Smith. Let me say to the gentleman from Texas, I don't 
think that he is going to get a different answer.
    Mr. Gohmert. Then I would ask the assistance of the 
Chairman to direct the witness to answer the question as asked.
    It is very simple. It is yes or no. Was she aware, or was 
she not?
    Mr. Smith. We will give the witness an opportunity to give 
a final answer, yes.
    Ms. Napolitano. Mr. Chairman, I would just like to say for 
this Committee, which is a----
    Mr. Gohmert. That does not sound like a yes or no. It is 
nonresponsive.
    Mr. Conyers. Mr. Chairman, regular order.
    Mr. Gohmert. It will not be given on my time.
    Mr. Smith. Madam Secretary, if you will----
    Mr. Gohmert. An answer that is non-responsive.
    Mr. Smith. Okay, the answer may be non-responsive.
    Madam Secretary, do you have anything to add?
    Ms. Napolitano. Mr. Chairman, I didn't know this was a 
court with rules of evidence. I was hoping I could explain my 
answer.
    Mr. Smith. Do you want to proceed to do just that?
    Ms. Napolitano. Thank you, Mr. Chairman.
    Mr. Gohmert. Mr. Chairman, my question was a yes or no----
    Mr. Conyers. Mr. Chairman, regular order.
    Mr. Gohmert. Anything but a yes or no answer is----
    Mr. Smith. We will allow the witness to answer the 
question.
    Mr. Gohmert. And the reason there are rules of evidence is 
so witnesses just don't go off on a lark----
    Mr. Conyers. Mr. Chairman, can we have regular order?
    Mr. Smith. The gentleman's time has expired.
    Does the witness have anything to add?
    Ms. Napolitano. Yes.
    This Committee has a long and proud tradition. These kinds 
of insinuations demean the Committee. The insinuation that I or 
my staff would allow someone who is a terrorist to infiltrate--
--
    Mr. Gohmert. I have not insinuating that Elibiary----
    Mr. Conyers. Mr. Chairman, regular order.
    Mr. Gohmert. He is very nice gentleman. I met him a couple 
of times. He is a nice guy.
    Mr. Smith. Let me say to the gentleman from----
    Mr. Gohmert. There is no such insinuation.
    Mr. Smith. We will have regular order.
    Mr. Gohmert. The Secretary of Homeland Security----
    Mr. Smith. We will have regular order.
    Mr. Conyers. Mr. Chairman?
    Mr. Gohmert [continuing]. To come in here and make such an 
allegation that----
    Mr. Conyers. Mr. Chairman, can we have regular order?
    Mr. Smith. The Committee will be in order. I understand the 
frustration of the gentleman from Texas, but I don't believe he 
is going to get a different answer and the gentleman's time has 
expired.
    Mr. Conyers. And he is out of order, too.
    Mr. Smith. The gentleman from Texas, Mr. Poe, is 
recognized.
    Mr. Poe. Thank you, Mr. Chairman.
    Madam Secretary, thank you.
    Are you familiar with these people or these cases, the Lois 
Decker case in New York, Ashton Cline-McMurray case in 
Massachusetts, the Binh Thai Luc case in California? Are you 
familiar with those names?
    Ms. Napolitano. I may know of them by different 
descriptors.
    Mr. Poe. Let me briefly go through these, and I want to 
talk about specifically criminals.
    As a former judge and prosecutor, as you were, crime is 
something that none of us like, but let's center in on some 
criminals in the United States that are still here, that don't 
go home when they are supposed to.
    Lois Decker was a grandmother and a mother in New York when 
she was murdered, a 73-year-old mother murdered by a citizen of 
Bangladesh, was illegally in the United States. He was a 
convicted felon.
    The system worked. While in prison, he was ordered back to 
Bangladesh. He never went back, because Bangladesh wouldn't 
take him.
    He gets out of prison. He murders Lois Decker, a 73-year-
old grandmother, steals her car and some other things.
    Ashton Cline-McMurray, 16-year-old child coming home from a 
football game was murdered by--or was beaten by an individual 
from Cambodia. Same situation. Never went back when he was 
supposed to.
    Binh Luc from California was sent to prison for armed 
robbery, gets out of prison. He was ordered to go back to 
Vietnam. They never took him back. He gets out. He murders five 
people in San Francisco.
    We have this recurring issue of criminals committing crimes 
from foreign countries. The law requires they go back home. 
They don't take them back.
    We actually have a law that says there is supposed to be 
some diplomatic--diplomatic visas are supposed to be rejected 
for people who don't go back.
    In my investigation of the law, I can only find one time 
since the law was written that one country was sanctioned for 
failure to take back lawfully convicted criminals from their 
country by denial of visas, and that was Ghana. It happened and 
they took back 112 after we sanctioned them.
    The way I understand the law, your department is to let the 
State Department know that these countries are stonewalling the 
system, I think gaming the system, won't take back their 
lawfully convicted--I mean, why would they take them back? They 
have enough criminals of their own. May as well leave them in 
the United States. Make them our problem.
    But I only see one case, and that was several years ago.
    But getting to the concern I have, why isn't that happening 
more often that the country is sanctioned by diplomatic visas 
for failure to take back lawfully convicted felons, when, if I 
read the law, it is a requirement? It says shall take back, or 
visas will be denied to these countries, diplomatic visas or 
other kinds of visas.
    And I don't see that happening, even though the law says 
shall. Information from you to the State Department, the State 
Department is supposed to reject the visas. It isn't happening.
    Can you help us out with that, and tell us how we can solve 
this problem?
    Ms. Napolitano. Representative, you have really identified 
two problems. One is a Supreme Court precedent called Zadvydas, 
which says we cannot hold people indefinitely, that there is a 
time limit on that. And the other is the practical problem that 
there are few countries in the world to which we seek to remove 
individuals who would refuse to accept them.
    The State Department is well aware of this. I think how 
they are proceeding and the moves they are making is something 
that you should address to them, but they are well aware of the 
problem.
    Mr. Poe. Well, what I hear from the State Department is, 
they are passing the buck. They say they don't get the 
information from you, the countries that are non-compliant. 
That is the answer I get from them, so that is why I am asking 
you the question.
    Are you furnishing them, the State Department, the 
information of these countries who refuse to take their 
citizens back? The issue of a 6-month detention is not what I 
am concerned about. That is the law. I understand that. We 
can't keep them in jail. They served their time.
    That is not the issue. The issue is they get out. And then 
they are our problem.
    The State Department gives me the information they don't 
get the information from you. Is your department getting that 
information to State about noncompliant countries?
    Ms. Napolitano. Well, we must be, because the State 
Department is indeed taking action and issuing demarches and 
other things to some of these countries. The diplomatic tools 
they are using is something you should address to them. But 
they must be getting information, because they are moving.
    Mr. Poe. Do you know of any other country that has been 
sanctioned and we refused to give them visas because of their 
noncompliance with----
    Ms. Napolitano. I do not know of any.
    Mr. Poe. Other than Ghana?
    Ms. Napolitano. I do not know of any.
    Mr. Poe. I have more questions, but I will submit them for 
the record, Mr. Chairman, because I know you won't let me keep 
talking.
    Mr. Smith. Thank you, Mr. Poe.
    The gentleman from Utah, Mr. Chaffetz, is recognized.
    Mr. Chaffetz. Thank you.
    Thank you, Madam Secretary. I appreciate you being here. 
Certainly, 40 appearances is an impressive number. We do 
appreciate you being here.
    I want to talk very quickly, if I can. I actually sponsored 
a bill, H.R. 3012. It is Fairness for High-Skilled Immigrants 
Act, which got rid of the per country cap limitations. And we 
passed that out of this Committee. We passed it out of the 
House. It is now awaiting action in the Senate.
    I just wanted to confirm that the Administration's view on 
removing the per country caps and the appointment-based green 
card side was something that the Administration would be okay 
with.
    Ms. Napolitano. I will have to look into that. But that 
sounds right. But let me verify that.
    Mr. Chaffetz. Okay. I want to move now to the Southwest 
border, because I am concerned about--the President, yourself, 
the attorney general, have all said that the Southwest border 
is more secure than it has ever been before.
    In Operation Fast and Furious, the Government purposely 
allowed nearly 2,000 weapons to get into the hands of the drug 
cartels. How many of those weapons were detained at the border? 
Do you have any----
    Ms. Napolitano. I couldn't answer that.
    Mr. Chaffetz. My understanding is that there hasn't been 
one single gun from Operation Fast and Furious apprehended by 
the Homeland Security or any other law enforcement, other than 
the two weapons that were found at the scene at the death of 
Brian Terry.
    Am I wrong in that?
    Ms. Napolitano. I just can't answer that. I don't know.
    Mr. Chaffetz. Let me ask you this, you know one of the 
things that has been touted, as you look at the different 
sectors around the country and the protection that we are 
trying to provide this country, the Tucson sector is by far the 
most problematic.
    My question for you is, if the number of detentions is 
going up, does that mean that the border is more secure? Or if 
the number of detentions at the border is going down, does that 
mean that the border is more secure? Which one is it?
    Ms. Napolitano. It is down. And let me explain.
    Mr. Chaffetz. I know it is down, but does that mean it is 
more secure, or would more apprehensions indicate that it is 
more secure?
    Ms. Napolitano. No, the way it works is that--and this has 
been historically done because these are difficult things to 
measure with absolutes. But the apprehension numbers are used 
as a proxy for how many are attempting. We actually thing that 
we are now picking up almost everybody who is trying to cross 
that border illegally. And we can look at that, because we are 
looking at crime numbers in Phoenix, stash house numbers in 
Phoenix, other kinds of indicias to whether illegal immigrants 
are trying to get into the interior of the country.
    Mr. Chaffetz. In Phoenix, the crime rate between 2008 and 
2009 was actually up 6 percent. So to claim it is actually more 
secure--I look at Nogales. You look at their crime rate from 
2009 to 2010.
    Now Nogales is the biggest city right on the border in the 
most problematic sector. You look at 2009 to 2010, the total 
number of offenses recorded is up 92 percent.
    Ms. Napolitano. Well, if I might, since I know the Arizona 
situation very, very well and pay a lot of attention to it, the 
Phoenix violent crime rate, kidnappings, stash houses, the 
other things associated with the illegal immigrant trade, way 
down; violent crime rate, way down.
    Nogales, actually, I would be interested in that number, 
because it doesn't correspond to any other number for Nogales I 
have seen. And it doesn't correspond to what the sheriff tells 
us.
    Mr. Chaffetz. Well, this is from the Nogales Department of 
Police. Let me read some numbers: 2009 to 2010, burglary up 82 
percent, thefts up 113 percent, thefts from auto up 132 
percent, grand theft auto up 70 percent, aggravated assaults up 
76 percent, assaults up 81 percent, and damage to property up 
81 percent. It doesn't sound like this is the most secure 
border that we have ever had.
    Ms. Napolitano. Well, I will tell you this, knowing Nogales 
as I do, there are probably a number of reasons for that. And I 
would challenge the accuracy of those numbers, for a number of 
reasons.
    Why don't you send me a question, and I will be happy to 
answer it for you.
    Mr. Chaffetz. That would be great.
    Do we have operational control of the border yet?
    Ms. Napolitano. I think this Southwest border is as secure 
as it has been in decades.
    Mr. Chaffetz. What percentage of the border is secure?
    Ms. Napolitano. Well, I would say that we have the ability 
to move men, materiel, and air cover through the entire 
Southwest border.
    Mr. Chaffetz. But we haven't yet recovered a single gun 
from Fast and Furious even though we purposely gave the drug 
cartels 2,000 weapons.
    This is the concern, and I would appreciate the ongoing 
dialogue, because I would disagree with the analysis that it is 
more secure than ever when you have places like Nogales with 
increasing crime rates.
    Mr. Smith. Would the gentleman yield?
    Mr. Chaffetz. Yes.
    Mr. Smith. Madam Secretary, I wanted to follow up on a 
couple of things you just said in response to the gentleman 
from Utah's questions.
    The Government Accounting Office last year said that only 
40 percent of the border was under operational control.
    Ms. Napolitano. Yes, that----
    Mr. Smith. Do you disagree with that?
    Ms. Napolitano. Yes, and it is--unfortunately, it gets into 
government-ese and different----
    Mr. Smith. Okay, Well, government--I have great faith in 
the Government Accounting Office. They are objective. They are 
not under the thumb of the Administration.
    Ms. Napolitano. Yes.
    Mr. Smith. But the other thing I wanted to make sure I 
heard correctly, you said that you thought that virtually 
everybody crossing the border illegally was being picked up?
    Ms. Napolitano. In some areas, yes.
    Mr. Smith. Oh, in some areas. I don't think you made that 
clear a while ago,
    Ms. Napolitano. Okay.
    Mr. Smith. Because believe me, in South Texas, the Border 
agents I talk to still think that two to three to four 
individuals are getting across the border illegally for every 
one apprehended.
    Ms. Napolitano. Well, Mr. Chairman, I think the head of the 
CBP or Border Patrol would be happy to provide you with a 
briefing. But this is the first time we have been able--we have 
enough manpower and materiel, first time where we can actually 
get ahead of changing traffic. And so we are surging in South 
Texas.
    Mr. Smith. In what areas do you think you are picking up 
virtually everybody coming across the border illegally?
    Ms. Napolitano. Oh, I would have to give you a list, but at 
least one of the Arizona sectors, I think we are getting 
virtually everybody.
    And it is certainly more than one in three, which was the 
typical statistic used in the past.
    Mr. Smith. Okay. For you to say you are picking up 
virtually everybody certainly is not true. South Texas, I doubt 
that it is true. Southern California----
    Ms. Napolitano. We are putting a lot of effort into South 
Texas now, Mr. Chairman.
    Mr. Smith. Well, as they say, I am going to rely on the 
testimony of the Border Patrol agents.
    I thank the gentleman----
    Mr. Chaffetz. Mr. Chairman, to suggest that we are picking 
up--that there is no illegal immigration going on in Arizona is 
a joke. An absolute joke.
    Ms. Napolitano. Mr. Representative, that is not an accurate 
summation of what I said. I said, in one of the sectors, I 
think we are getting virtually all. I did not say----
    Mr. Chaffetz. In Yuma?
    Ms. Napolitano. Yuma sector, I think we are getting 
virtually all. I think the Tucson sector is a very active 
sector.
    But when I compare the numbers in Tucson sector now to what 
they were a few years ago, there is almost no comparison. It is 
night and day.
    Mr. Smith. Okay.
    Mr. Chaffetz. I wish I had more time, but----
    Mr. Smith. Please submit numerous questions.
    The gentleman from South Carolina, Mr. Gowdy, is 
recognized.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Good afternoon, Madam Secretary.
    You mentioned the term prosecutorial discretion eight times 
in a two and a half page memo, so I want to ask you about that 
phrase, because it was important enough to use multiple times.
    And prosecutors do have a lot of discretion. We have the 
discretion, as you know, whether to indict; when to indict; in 
some states, when to call the case for trial; to sentence 
bargain; to charge bargain.
    But I am interested in whether or not there are any limits 
to prosecutorial discretion, because I can tell you, Madam 
Secretary, I had to prosecute a lot of cases where I disagreed 
with the underlying law. I never understood or agreed with the 
disparity in cocaine base and cocaine powder. The entire time I 
prosecuted drug cases, I never agreed with the sentencing 
disparity. It never entered my mind to subordinate the 
legislative intent with my own.
    And I would say the people who think that they benefit from 
these episodic exceptions to the administration of law equally 
to be careful. Today it may benefit you; tomorrow it may not.
    And with respect, their defense is not--this Administration 
or even your department--their defense is the fact that we are 
a Nation of laws and not a Nation of men or women, a Nation of 
laws.
    So let me ask you this. If the DEA administrator decided 
that he thought marijuana should not be criminalized, does he 
have the ability, the power, the authority to no longer 
prosecute marijuana cases?
    Ms. Napolitano. Well, I think there are plenty of examples 
around the country where marijuana cases, particularly low-
level, personal possession cases, are not being prosecuted at 
all, even though the law is still on the books.
    Mr. Gowdy. I asked if the DEA administrator had the 
authority to, by memo, say we are not going to prosecute 
marijuana cases anymore, because we do not agree with the 
criminalization of marijuana?
    Ms. Napolitano. Well, I think the DEA administrator has the 
right as part of prosecutorial discretion to say what cases 
will be prioritized and what will not be, and how those lower 
priority cases will in fact be handled. That is what happened 
here.
    Mr. Gowdy. I am not talking about case-by-case, because the 
truth is, Madam Secretary, you already had the authority to 
decide case-by-case.
    In other words, there was no need for your memo. This memo 
gave you no more authority than you had before you drafted it, 
which leads some of us to conclude that it was a political memo 
and not a law enforcement or a legal one.
    Can you understand the skepticism of some of us? You 
already had the authority to decide on a case-by-case basis. So 
why publicize it, why announce it to the world, unless it was 
for political purposes?
    Ms. Napolitano. Well, in fact, it is the outgrowth of 
several years. And one of the things that--there was a 2010 
memo on our priorities. There was a 2011 memo on prosecutorial 
discretion.
    Then we began going case-by-case through the 350,000 cases 
already in the backlog. We found that, in doing so, that wasn't 
enough to really clear out and get out of the huge backlog that 
we have in lower priority cases.
    This memo takes the lowest of the low-priority cases, young 
people not of their own volition, they are already invested----
    Mr. Gowdy. I am familiar with the policy.
    Ms. Napolitano. This is the way we are going to handle 
this.
    Mr. Gowdy. I am familiar with the policy, and my response 
to that is, if you are so right on the policy, then you ought 
to be able to convince the people who pass the laws, that that 
is a legislative issue. It is not an executive branch issue.
    I am sure that you prosecuted 924(c) cases when you were 
the U.S. Attorney, and certainly your staff did. That is an 
example of Congress saying to the judge, you have no discretion 
when it comes to sentencing. It is going to be 60 months for a 
garden variety 924(c) regardless of whether or not you think 
that ought to be the sentence.
    And my guess is, I don't know this, my guess is when you 
were the U.S. Attorney in Arizona, if a judge departed too far 
below the guidelines, you would appeal that judge, because that 
was outside his or her discretion.
    My question to you is, what is our remedy, as lawmakers, as 
legislators, when you ignore laws that have been passed?
    What is our remedy? To cut off the funding? To direct to 
you, you have to prosecute this category of cases, because the 
explanation that I have heard is one of resources, that we 
don't have the resources to prosecute this category of case?
    And, Madam Secretary, tomorrow it may be another category 
of case, and then the day after another category of case. So, 
at first blush, it strikes me, it takes as many resources to 
identify whether your memo applies or not as it would to 
prosecute the case. How long have they been in the country? 
What is their educational background? What is their age? 
Whether or not they have a record of serious misdemeanors?
    All of that requires resources, your agency's resources. So 
it strikes me as--I am not going to use the word----
    Mr. Lungren [presiding]. The gentleman's time has expired. 
The witness can answer the question.
    Ms. Napolitano. Well, I think you and I clearly disagree on 
what discretion means and how it can be applied.
    But on the resource question, as I mentioned earlier, there 
will be a fee associated with the process and the adjudication 
of the process. So this is not anticipated to come out of 
taxpayer funds.
    Mr. Lungren. The gentleman's time has expired.
    The gentlelady from California, Ms. Chu, is recognized for 
5 minutes.
    Ms. Chu. Thank you.
    Madam Secretary, first of all I want to commend ICE's 
intellectual property enforcement work, particularly through 
Operation In Our Sites. These efforts are protecting American 
consumers and intellectual property owners from fakes and 
dangerous goods, including counterfeit drugs that are sold 
online by criminal enterprises, as well as copyright infringing 
works, such as movies and TV shows that are created by my 
constituents in my district in Southern California.
    And you have had some investigations that have been very 
important for our area; for instance, an investigation last 
year which led to prison sentences for owners of a Los Angeles 
jewelry store who illegally imported and sold counterfeit 
designer jewelry, some of which tested positive for hazardous 
levels of lead. In fact, the lab tests showed that there was 
nearly 20 times the amount lead deemed safe by the Consumer 
Product Safety Commission for handling by children. And, 
despite that, these items were labeled lead-free. So you really 
solved and were able to attack a terrible problem there.
    I also want to applaud you for the announcement with regard 
to our Dream Act students who were brought here by their 
parents and came here without documentation through no fault of 
their own, and to have grown up in the United States and want 
to contribute to this country.
    In fact, we have Dream Act students right here in the 
audience. This means a lot them. The policy will help to ensure 
that we don't focus our limited taxpayer resources on 
individuals who don't pose a threat to our country and who want 
to give their heart to this country that they call home.
    And my question has to do with immigration courts. As a 
long-time prosecutor, you know that you can't enforce a law and 
prosecute people effectively if you can't get on the court's 
dockets. Our immigration court system is incredibly backlogged. 
Right now, there are more than 300,000 pending cases.
    If you are an ICE trial attorney in Phoenix who is trying 
to remove someone who is a high enforcement priority, you are 
going to have to wait until the year 2018 to get a court date 
for the merits.
    In El Paso, you have to wait until the year 2016 to even 
get into the court for a master calendar hearing to set a 
schedule for the case. That doesn't make sense.
    Can you describe what DHS is doing to fix up this problem 
and how your recent Dream Act memorandum will help you clear up 
this backlog?
    Ms. Napolitano. Representative, we have been addressing 
that. It is really a question for DHS and the Department of 
Justice. But we have been addressing it through offering 
administrative closure to low-priority cases that are caught in 
the backlog.
    We have been able to offer closure, I think, to about 8 
percent of those cases. And, then, by what is coming into the 
immigration court system, making sure that those are the public 
safety cases, the criminals, the recent border crosses, the 
repeat violators, those are the ones that we prioritize. And 
just as we can prioritize, we can deprioritize, that those get 
our full attention.
    Ms. Chu. Let me also ask about the historical precedent to 
prioritize. When Director Morton first issued his enforcement 
priorities and prosecutorial discretion memos, some critics 
attacked the memos as unconstitutional and in violation of the 
separation of powers doctrine. These same attacks have 
continued in the wake of your memo on deferred action for Dream 
Act students.
    I wonder if you could respond to this claim and describe 
for us some of the historical precedent for issuing guidance 
such as this.
    Ms. Napolitano. Well, there is a lot of historical 
precedent going back decades. I mentioned a few of the key 
cases, Chaney v. Heckler. There is a case, Reno v. Arab-
American Anti-Discrimination league.
    And the recent Arizona decision of this Supreme Court is 
very clear that, in the immigration field, we possess and 
should possess enormous discretion on how to actually enforce 
the laws.
    Ms. Chu. In fact, doesn't Chapter 6 of the U.S. Code, 
Section 202, specifically direct you to establish national 
immigration enforcement policies and priorities?
    Ms. Napolitano. That is true.
    Ms. Chu. And, in Congress' annual appropriation bills, have 
we not directed you to prioritize the removal of serious 
criminal aliens and fund programs that specifically target such 
populations?
    Ms. Napolitano. Yes, you have.
    Ms. Chu. And, aside from Congress' direction, hasn't DHS 
and INS before issued similar guidance about the use of 
prosecutorial discretion?
    Ms. Napolitano. That is right. Doris Meissner, when she was 
the commissioner of then-INS, issued a very lengthy memo filled 
with all of the then existing legal precedent. That memo was 
cited by Julie Myers, who was the director of ICE before our 
Administration took over.
    So there is a long track record here of how we do this.
    And, again, I think it is important to emphasize, what we 
are trying to do is to increase the proportion not only those 
we remove from the country, the absolute number, but those of 
them who are convicted criminals, recent border violators, or 
repeat violators of our Nation's immigration laws.
    Ms. Chu. Thank you.
    Mr. Lungren. The time of the gentlelady is expired.
    And the gentleman from Arizona, Mr. Franks, is recognized 
for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Thank you, Secretary Napolitano, for being here.
    Madam Secretary, both the 9/11 Commission report and the 
2011 bipartisan report by Senators Lieberman and Collins on the 
Fort Hood massacre found that a major failure of the national 
security apparatus in those instances, to quote their 
materials, ``was the failure to acknowledge the true enemy 
explicitly as violent, Islamist extremism.''
    The DHS former top intelligence officer, Charlie Allen, 
noted that the U.S. Intelligence community doesn't even have, 
quote, ``the minimum essential requirements,'' unquote, for how 
to collect information about violent Islamist extremism.
    Madam Secretary, as you know, Sun Tzu said that if you 
cannot identify your enemy, you cannot defeat him. Multiple 
agencies knew that Major Hasan was communicating with terrorist 
leader Awlaki, yet the Fort Hood massacre was deemed by this 
Administration, quote, ``workplace violence.''
    And political extremists don't recognize political 
correctness. And political correctness seems so extreme inside 
this Administration that the Attorney General, Eric Holder, 
came before this Committee and, after being asked numerous 
times, refused to acknowledge to our Chairman that radical 
Islam could be a, quote, ``factor'' in terrorism threats.
    And I think this kind of political correctness is killing 
Americans. Agents inside this Administration have told Members 
of this Congress that they are often afraid to identify the 
terrorist enemy and his ideology when the enemy cloaks himself 
in religion.
    So my question is this: If an agent inside your agency 
needs to identify the next Fort Hood shooter and that agent 
says that the terrorist is by a jihadist ideology, is that 
agent going to be punished?
    Ms. Napolitano. No.
    Mr. Franks. And I have your word on that?
    Ms. Napolitano. We look at that--we look at varying 
ideologies, but the notion that we won't say terrorist or 
Islamist is not accurate.
    Mr. Franks. And an agent won't be punished for opining the 
same.
    Ms. Napolitano. I wake up in the morning thinking about how 
to protect this country, and I go to bed at night thinking 
about how to protect this country, And that is from individuals 
who seek to harm us of a variety of ideologies, but Islamist or 
radical violent Islamist is certainly one.
    Mr. Franks. Okay, well, I have a letter dated October 19th, 
2011, from multiple organizations, including several unindicted 
co-conspirators in the Holy Land Foundation trial. This is, of 
course, the largest terror-financed trial in U.S. history.
    And this letter is addressed to you, to Attorney General 
Holder, and to Leon Panetta. And it demands a, quote, 
``purge,'' unquote, of all counterterrorism training materials 
on the grounds that some of the materials reflected poorly on 
Islam. Now, within days, the Administration commenced an 
unprecedented nationwide purge of its counterterrorism 
materials.
    And an investigation into the FBI purge reveals that 
radical Islamist ideology is being purged along with 
information about mainstream Islam without distinction. 
Essentially, political correctness at the behest of unindicted 
co-conspirators is prevailing over the recommendations of the 
9/11 report and the bipartisan Senate report on Fort Hood.
    Has your agency also purged counterterrorism training 
materials along with the internal discussions that reference 
radical Islamist ideology and practice?
    Ms. Napolitano. Not that I am aware of, no.
    Mr. Franks. Have you had any discussions with anyone in 
White House about the contents of that letter?
    Ms. Napolitano. No, I haven't.
    And let me just say, there are lots of training materials 
out there, so we are constantly revising and improving based on 
the intelligence we get and receive and how that is analyzed as 
to what are the evolving threats against the United States. But 
that is not a purge; that is just evolution of training 
materials.
    Mr. Franks. Are you aware of the purge within the FBI?
    Ms. Napolitano. No, I am not.
    Mr. Franks. The materials, you are not aware of that?
    Ms. Napolitano. No, I am not.
    Mr. Franks. All right. Well, thank you for coming by today 
and I appreciate your answering the questions.
    Ms. Napolitano. You bet.
    Mr. Lungren. The gentleman yields back his remaining time.
    And the gentleman from Arizona, Mr. Quayle, is recognized 
for 5 minutes.
    Mr. Quayle. Thank you, Mr. Chairman.
    Thank you, Madam Secretary, for being here.
    I want to go back to what you said the fee for the process 
that is going to be starting in August and the fact that it is 
not going to cost American taxpayers.
    Isn't it true that there is also going to be a fee-waiver 
process as well, so that there is going to be some people who 
we waive to actually pay the fee so that it will actually cost 
American taxpayers?
    Ms. Napolitano. The decision on that is not yet final, but 
I don't anticipate there will be a broad fee-waiver process.
    Mr. Quayle. But there will be a fee-waiver option.
    Ms. Napolitano. There may be a slight exception in 
particular of very deserving cases, but we anticipate this will 
be a fee-borne process.
    Mr. Quayle. Okay, so there could possibly be a fee waiver 
in certain instances.
    Ms. Napolitano. For a person of compelling--but let me 
say--let me be very clear. We have not yet decided this or how 
to articulate it, and I don't want the expectation out there by 
the applicants that there is going to be a broad fee-waiver 
process. There is not.
    Mr. Quayle. Okay, that would be more discretion on the part 
of DHS.
    Ms. Napolitano. On a very hardship basis.
    Mr. Quayle. So you mentioned that the memo that you put on 
shortly after the Supreme Court ruling was a process of many 
memos, the Morton memos that came out 1 or 2 years ago and now 
it is your memo.
    I think that one of things that is concerning to a lot of 
us when you are talking about discretion is what is the next 
memo that is going to be coming out in terms of waiving or not 
allowing the actual prosecution of certain laws that are on the 
books?
    I mean, is it going to be the next memo that comes out not 
just from you, but some other, that they are not going to 
enforce a different law that is on the books?
    And what my friend from South Carolina was trying to get at 
was what is our remedy as legislators? Do we have to, in every 
single law that we pass, that we pass through the Congress and 
the President signs, do we have to add a clause that says we 
really mean it, you have to actually enforce these laws? 
Because the discretion that you are talking about just seems 
like this means that the laws that are written and that are 
actually signed by the President don't really mean anything if 
they actually have the discretion to disregard them.
    So what can we do, as legislators, to make sure that we get 
the laws that are passed actually fully enforced by the 
executive branch?
    Ms. Napolitano. You know, Representative, I have been an 
executive my whole career, so it is really hard for me get into 
that legislative mindset. I will leave that for you.
    But I will say we are enforcing the laws. We have removed 
more people from this country than any prior Administration 
over a similar time period. In fact, I get criticized for that 
on a regular basis.
    But in the constitution of what is in there, we removed 
more criminals, border crossers, repeat violators. Ninety 
percent-plus last year are in those priorities. That is going 
to increase.
    And so I think it is totally within discretion about how 
you take the laws and say, look, you don't give us--no law 
enforcement agency has unlimited resources. We all have to make 
decisions. You would be hard-pressed to find a U.S. Attorneys' 
Office that takes a check cashing case, even though there is a 
Federal statute about it. It is a resource question.
    Mr. Quayle. Do we have to say, look, this law, it is 
mandatory, you have to enforce it. Is that the route we are 
going to go? Because that seems to be--I mean, judges aren't 
allowed to waive the mandatory minimums that are put in place 
by the legislatures, even in State or Federal.
    And so this is what I am trying to get at, is that, when we 
have a situation where an executive branch does not actually 
enforce the laws but provides waivers or deferments or whatever 
you want to call it, we have a situation where the executive 
branch becomes all-powerful. And you can waive or not enforce 
any law that is on the books.
    And that completely and totally destroys the constitutional 
framework of our country of separate but co-equal branches of 
Government. And so I guess that is where we are going to have 
to go.
    But I want to jump really quickly, because my time is 
limited, to 287(g) that you were talking about earlier.
    Director Morton was also testifying last week, and you were 
saying that there were no removals for the Arizona 287(g) task 
force programs in the last 2 years?
    Ms. Napolitano. For six of them.
    Mr. Quayle. For six of them?
    And which numbers--there were seven of them? Is that what--
--
    Ms. Napolitano. I think--and we could give you the actual 
numbers. They are not a secret.
    Mr. Quayle. But, I mean, the word ``removal'' is very 
specific in terms of you guys and ICE actually removing the 
person. But that doesn't necessarily mean that an illegal 
immigrant was found by that agency that was a part of the task 
force and was handed over to ICE but then isn't actually 
removed.
    So, I mean, in 2010, the DPS, 112 illegal aliens were 
processed with ICE; 74 were processed in 2011.
    How many of those--I mean, maybe you will have to give me 
the answer. How many of those were actually removed, even 
though they were actually processed through ICE?
    Because I have noticed that you used the same word that Mr. 
Morton does as well, but that doesn't get to the crux of how 
effective are local and State agencies actually apprehending 
illegal immigrants who are committing other crimes and then 
giving them to ICE, because then ICE has that discretion that 
they had been using?
    Ms. Napolitano. Well, I think the goal of ICE----
    Mr. Lungren. The time of the gentleman has expired, but the 
witness may answer that question.
    Ms. Napolitano. Thank you, Mr. Chairman.
    You know, our goal is to remove those people who have been 
committing crimes in the country. So that is why we use removal 
as the key number.
    I think one of the other comparisons you might make, 
Representative, is between those task forces--and they are 
hugely expensive, and I will give you that breakout as well, 
compared to Secure Communities, which we have in all border 
States, in all the jurisdictions, where we have literally found 
thousands of criminals and aggravated felons.
    So from an administrative, management, cost-effective way 
of doing this, Secure Communities is so much better.
    Mr. Quayle. All right. Thank you.
    Mr. Lungren. The gentleman from South Carolina--or North 
Carolina, Mr. Coble.
    Mr. Coble. I will hold you harmless for that, Mr. Chairman.
    Mr. Lungren. Well, you haven't been here that long, so I am 
still getting to know you.
    You are recognized for 5 minutes.
    Mr. Coble. Thank you, Mr. Chairman.
    Madam Secretary, good to have you back on the Hill.
    The distinguished gentleman from South Carolina, Madam 
Secretary--mentioned, or discussed prosecutorial discretion 
with you. Let me ask you this, Madam Secretary.
    What are you all at Homeland Security doing to assure that 
the new prosecutorial discretion policies do not result in the 
release of 17-year-old alien gang members into our communities?
    Ms. Napolitano. Well, the use of discretion in the deferred 
action program, a gang member would not qualify.
    Mr. Coble. I can put that in the bank, right?
    Ms. Napolitano. If there is an arrest for a felony or a 
serious misdemeanor, that person does not--and there is a 
criminal record and other indication that this is a gang 
member, no, that person won't qualify.
    Mr. Coble. I thank you for that.
    Madam Secretary, I am going to insert my oars into 
geographic waters that are far extended from my district. 
Sometimes that can be a harmful exercise, but I am told that 
Cook County, Illinois, is a so-called sanctuary jurisdiction 
that does not cooperate with ICE to deport immigrants who have 
been arrested. Chicago, I am furthermore informed, is currently 
experiencing a massive wave of gang-related homicides.
    Might not better cooperation between the county and ICE to 
deport illegal immigrant gang members help or assist alleviate 
the murder crisis in Chicago?
    Ms. Napolitano. Yes.
    Mr. Coble. That is a hypothetical, I will admit.
    Ms. Napolitano. Yes, I agree.
    Mr. Coble. All right. Let me go back to the alien minors.
    What is being done, Madam Secretary, to ensure that 
unaccompanied alien minors interdicted at the border, who turn 
out to be gang members, are not released into our communities?
    Ms. Napolitano. Well, again, there is guidance and 
supervision in the field as to that. There is a consequence 
delivery system, as I will explain in detail for you, or have 
someone explain for you. But it would be our total intention to 
make sure our agents pick that person up.
    Mr. Coble. I thank you. I think I have time for one more 
question. ICE has found that the membership of violent 
transnational gangs is comprised largely of foreign-born 
nationals. Is it not better to deport gang members before they 
are caught committing major crimes, not after?
    Now, in 2005, the House passed legislation authored by Mr. 
Sensenbrenner to allow for the deportation of all alien gang 
members. Would you support such legislation?
    I don't think it ever got passed in the Senate.
    Ms. Napolitano. Yes, I am not familiar with it, 
Representative, so I am reluctant to comment on it.
    Mr. Coble. Could you get back to me on that?
    Ms. Napolitano. Yes.
    Mr. Coble. I would appreciate that.
    Mr. Chairman, I think my time is about to expire. Thank 
you. I yield back.
    Mr. Lungren. The gentleman yields back.
    And the gentlelady from Florida, Mrs. Adams, is recognized 
for 5 minutes.
    Ms. Adams. Thank you, Mr. Chairman.
    Madam Secretary, we meet again, and I am going to ask you 
some very similar questions as to the last time we spoke.
    I know, in December, you responded to my requests on how 
many people had been deported under Section 243(d), and I 
believe that your letter said that is the last step in getting 
countries to repatriate and to be used only after diplomatic 
efforts have failed. You also conceded that the Administration 
has yet to invoke these sanctions.
    That was December. Now we are here in July. Have they 
invoked any? Have you recommended any to the Department of 
State?
    Ms. Napolitano. Well, again, I think----
    Ms. Adams. Just a yes or a no. I mean, I have sat here all 
day, and I have listened to the filibustering. I think yes or 
no. Have you recommended any to the Department of State?
    Ms. Napolitano. Again, the information as to which 
countries are not working with us----
    Ms. Adams. I will take that as a no. We will move on, 
because I have a lot of questions.
    Ms. Napolitano [continuing]. To the State Department, and 
it is up to them to make----
    Ms. Adams. Secretary, with all due respect, I want to get 
answers to my questions, not answers you want to give me. So a 
simple yes or no is what I was asking you. If you want to go 
into further detail, I would love to have you respond in a 
letter to get further into it, but a yes or no was perfectly 
satisfactory on a question, have you or have you not submitted 
any persons to the Department of State under 243(d)?
    Ms. Napolitano. I will get back to you in writing.
    Ms. Adams. Thank you.
    Now, is it true that Agent Terry was shooting a beanbag gun 
the night he was killed?
    Ms. Napolitano. I will get back to you in writing.
    Ms. Adams. Okay. We are going to go that route. That is 
fine.
    Is it true--do you have policies and procedures for your 
law enforcement officers on how to respond to active shooters?
    Ms. Napolitano. I will get back to you in writing.
    Ms. Adams. So you are planning not to answer any of my 
questions the rest of this afternoon?
    Ms. Napolitano. If you want an either yes or no----
    Mr. Conyers. Mr. Chairman?
    Ms. Napolitano [continuing]. And won't let me explain----
    Mr. Conyers. Mr. Chairman----
    Ms. Napolitano. [continuing]. I will have to explain in 
writing.
    Ms. Adams. Well, let me ask you this.
    Mr. Conyers. I think that this proceeding----
    Mr. Lungren. Let's have regular order. Regular order.
    Mr. Conyers. Yes, could we have regular order, please?
    Ms. Adams. Thank you.
    I am in possession of what is called ``How to Respond to an 
Active Shooter.'' How to respond: An active shooter is an 
individual actively engaged in killing or attempting to kill 
people in a confined and populated area typically through the 
use of firearms.
    I sent a letter, once I had heard about this, because it 
was reported all over the news. Fox reported that DHS officials 
maintained that the active shooter course was designed for all 
employees, civilian and law enforcement officers, and no one 
should rush into a situation where they or others around them 
could get hurt.
    Here is something from some of the Border Patrol agents: 
All immigration law enforcement officers have been required to 
watch the video.
    And when I asked, you said they are not designed to mandate 
law enforcement actions. However, they are your training. Are 
they not your training materials?
    Ms. Napolitano. They are training materials for civilians. 
Law enforcement observe them for situational awareness. Our use 
of force policies are consistent with all of Federal law 
enforcement. They are in writing, and we will supply them to 
you.
    Ms. Adams. Thank you very much. Because the letter I 
received just said they are not mandated. And I have real 
concerns when we have a Border Patrol agent who may or may not 
have been shooting a beanbag up against a very high-powered 
weapon. We have this who says that you are only to shoot back 
when your life is threatened. And as a law enforcement officer 
who was sworn to protect my community, if I was out and about, 
even off-duty, and someone were to start shooting in a 
populated area, or nonpopulated, but threaten someone's life, 
not my own, but threatening other people's lives, I was 
required to act to stop the aggression and save those lives.
    So I just wanted to make sure that this is not something 
that you are telling your armed law enforcement officers to do, 
to run away and hide?
    Ms. Napolitano. They were told about it and went to the 
training so they were situationally aware. But the use of force 
policy is that which is consistent across Federal law 
enforcement.
    Ms. Adams. Well, again, maybe you need to get your public 
information officer that information, because they were quoted 
as saying it was for all, law enforcement and civilian 
employees. It was a policy.
    Ms. Napolitano. For different purposes.
    Ms. Adams. I also look forward to getting your information 
back on 243(d) and how many times you have recommended someone 
be deported under that.
    As you know, these are violent criminals who have served 
time, and because their country refuses to take them back, they 
are released into our communities to create and commit more 
violent crimes.
    You know, I am very concerned that we have an option and it 
has yet to be employed when we have people being murdered by 
the very people that had threatened them, done time in jail, 
and because their country wouldn't take them back, were 
released into the community to kill their victim.
    And my time has expired. I yield back.
    Mr. Lungren. The gentlelady's time has expired.
    I am the last questioner, because I had to be in another 
meeting, is me.
    And so, Madam Secretary, thank you for appearing before us. 
We have had opportunities to have conversation before on the 
other Committee, Homeland Security. And I appreciate your work 
and your time.
    I must just say, though, as someone who has been involved 
in immigration law for 30-some years, who is the ranking 
Republican who carried the Simpson-Mazzoli bill, believing that 
we had a balance between legalization at that time and 
enforcement, and then sorely disappointed at the failure of 
enforcement ever since, it is very important what we do, and 
what message it sends, not only to those who are directly 
affected, but to those who would see how we act and perhaps 
take advantage of that.
    And that is why it bothers me a great deal--I will just put 
this on the record. It bothers me a great deal that the 
President had an opportunity for almost 3 and a half years to 
work on efforts for immigration reform, 5 months before an 
election decides to announce this particular policy.
    And you come before us, and you tell us that we can't tell 
you all the details of the policy because they haven't worked 
them out. Normally, you work out what the details are, and then 
you declare your policy if in fact the intention is to have it 
work and not just make a political statement.
    And that is just my observation. And so it is a 
disappointment to me, I will tell you. But I understand----
    Ms. Napolitano. I think I disagree with you Representative.
    Mr. Lungren. I would presume that you do.
    Ms. Napolitano. I assume you know I would disagree, but let 
me simply say that this was the evolution of a process that 
began in 2010.
    Mr. Lungren. I understand that.
    Let me ask you this, if the Congress gave you additional 
funding and directed that it only go toward removal and 
deportation cases, would you then alter your position on 
prosecutorial discretion? Because as I understand it, a great 
deal of what you have stated your policy to be is a consequence 
of limited budgets and, therefore, the necessity to establish 
priorities.
    Ms. Napolitano. So you are saying if you give me an 
unlimited pocketbook, would I take it back? Is that the 
question?
    Mr. Lungren. No, that is not my question. And I know you 
know that was not my question.
    My question was, if we gave you additional funding, 
directed that you use those funds toward removal and 
deportation cases, would you still come up here and testify 
that the Administration would have the same policy as it 
announced in terms of the memorandum and the President's 
announcement at the White House?
    Ms. Napolitano. Yes, and the reason is there are plenty of 
criminals, border crossers, and repeat violators, more than 
enough for us to remove from the country. So you can give us 
more money, we will take it, but we are going to put it into 
the----
    Mr. Lungren. Even if we gave you enough money to cover 
those people that are included in the prosecutorial discretion 
decision?
    Ms. Napolitano. Representative, I think that is so unlikely 
that it is hard to answer the question.
    Mr. Lungren. Well, I guess you don't want to answer the 
question about whether it is about resources or because you 
happen to disagree with the underlying law.
    And I can understand you disagree with the underlying law, 
but that, it seems to me, is not the basis upon which to hide 
behind a prosecutorial discretion, a definition where it is not 
a case-by-case authority. It is, in fact, a broad category that 
has been established.
    There has been a statement here that, because we are 
covering this group of individuals who, through no fault of 
their own, came to the United States, it is in fact almost 
imperative we do that. My question is, is anybody at fault for 
them coming to the United States?
    Ms. Napolitano. It depends.
    Mr. Lungren. Well, does your policy include not only, and I 
know you don't call it amnesty, so we will not call it that. 
Let's say it is a refusal to take action under the law with 
respect to this category of individuals.
    What does it do with respect to the individuals who brought 
them here illegally? Are they also covered by prosecutorial 
discretion?
    Ms. Napolitano. They may be covered by prosecutorial 
discretion, but they are not covered by the deferred action 
memorandum.
    Mr. Lungren. So what would we believe then? Individuals 
that are covered by this, with respect to the quote, unquote, 
``Quasi Dream ACT'' deportation, deferment, or whatever you 
want to call it. And does that extend to their relatives as a 
matter of policy?
    Ms. Napolitano. No.
    Mr. Lungren. So that parents would not be covered by this, 
so the students would stay in the United States, but the 
parents would be subjected to deportation?
    Ms. Napolitano. Well, they would be reviewed under a 
different standard, if their case came into ICE. And that would 
be the prosecutorial discretion memo of last June.
    Mr. Lungren. So the likelihood is they would not be?
    Ms. Napolitano. If they had a felony or a serious 
misdemeanor on their record, they would be a priority case. 
They would be removable.
    Mr. Lungren. One last question, because my time is rapidly 
depleting here.
    Yesterday, we had testimony by a TSA representative in 
another Subcommittee about the issue of pilot licensing or 
pilot lessons, and the question of checking people before they 
are able to do that.
    And it was brought up by the representative of TSA that, 
currently, you do not match the list of those who want to apply 
for pilot lessons with the no-fly list. And that seemed to be 
incongruous that on a no-fly list I couldn't get on a 
commercial aircraft, but I could, in fact, go to a pilot 
training program and not be stopped from doing that, because it 
is not checked against that list.
    Ms. Napolitano. Representative, let me take the opportunity 
to offer a classified briefing to you. The plain fact of the 
matter is, there are lots of different ways someone on the no-
fly list would not be in a position to get a pilot's license. 
But I think I need to go in a classified----
    Mr. Lungren. Okay, I understand.
    But the statement was made on the record yesterday that 
they are not checked against the no-fly list, period. And that 
is disturbing, if that is the case.
    Ms. Napolitano. The TSA representative may not have been 
aware of all the other things that occur.
    Mr. Lungren. I appreciate that very much.
    I have so many more questions to ask you, but my time is 
up. And I know you would love to be here and enjoy our time 
some more, but, alas, that is not possible.
    So we thank you for your testimony today. I know that there 
are questions that will be submitted to you in writing, and I 
know you will endeavor, as you have stated on the record, to 
get those to us in a timely fashion, as we define timely here.
    And without objection, all Members have 5 legislative days 
to submit additional written questions for the witness or 
additional materials for the record.
    Mr. Lungren. And this hearing is adjourned.
    [Whereupon, at 12:55 p.m., the Committee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Material submitted by the Honorable Zoe Lofgren, a Representative in 
  Congress from the State of California, and Member, Committee on the 
                               Judiciary


























































































































































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 Material submitted by the Honorable Trent Franks, a Representative in 
   Congress from the State of Arizona, and Member, Committee on the 
                               Judiciary
















                                

     Response to Questions for the Record from the Honorable Janet 
      Napolitano, Secretary, U.S. Department of Homeland Security

































































                                 
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