[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



     RELEASE OF CRIMINAL DETAINEES BY U.S. IMMIGRATION AND CUSTOMS 
                    ENFORCEMENT: POLICY OR POLITICS?

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 19, 2013

                               __________

                            Serial No. 113-5

                               __________

         Printed for the use of the Committee on the Judiciary




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

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
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                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel










                            C O N T E N T S

                              ----------                              

                             MARCH 19, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, 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..................................................     3

                                WITNESS

The Honorable John Morton, Director, U.S. Immigration and Customs 
  Enforcement
  Oral Testimony.................................................    11
  Prepared Statement.............................................    13

          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
Prepared Statement of the Honorable Trey Gowdy, a Representative 
  in Congress from the State of South Carolina, and Member, 
  Committee on the Judiciary.....................................     5
Prepared Statement of the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................     6
Material submitted by the Honorable Darrell E. Issa, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................     8
Material submitted by the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    21
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................    41
Material submitted by the Honorable Trey Gowdy, a Representative 
  in Congress from the State of South Carolina, and Member, 
  Committee on the Judiciary.....................................    47
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................    60
Material submitted by the Honorable Tom Marino, a Representative 
  in Congress from the State of Pennsylvania, and Member, 
  Committee on the Judiciary.....................................   131
Material submitted by the Honorable Hakeem Jeffries, a 
  Representative in Congress from the State of New York, and 
  Member, Committee on the Judiciary.............................   136
Material submitted by the Honorable Ted Poe, a Representative in 
  Congress from the State of Texas, and Member, Committee on the 
  Judiciary......................................................   147

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Doug Collins, a 
  Representative in Congress from the State of Georgia, and 
  Member, Committee on the Judiciary.............................   152

 
     RELEASE OF CRIMINAL DETAINEES BY U.S. IMMIGRATION AND CUSTOMS 
                    ENFORCEMENT: POLICY OR POLITICS?

                              ----------                              


                        TUESDAY, MARCH 19, 2013

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 1:10 p.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Coble, Smith, Bachus, 
Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, 
Marino, Gowdy, Labrador, Holding, DeSantis, Rothfus, Conyers, 
Scott, Watt, Lofgren, Jackson Lee, Johnson, Gutierrez, Bass, 
Richmond, DelBene, Garcia, and Jeffries.
    Staff present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Dimple Shah, Counsel; Kelsey Deterding, Clerk; (Minority) Perry 
Apelbaum, Staff Director & Chief Counsel; Danielle Brown, 
Parliamentarian; and Tom Jawetz, Counsel.
    Mr. Goodlatte. The Judiciary Committee will come to order.
    And without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    I want to take the opportunity of this full Committee 
gathering to make Members aware of our new policy regarding 
participation in Subcommittee hearings. At the beginning of the 
Congress, I was asked whether Members who are not a Member of a 
Subcommittee would be allowed to participate in Subcommittee 
hearings. After giving it some thought, I have come up with 
what I think to be a reasonable solution that will allow our 
Members some level of participation without overburdening the 
Subcommittees.
    A Member who is not a Member of a Subcommittee but is a 
Member of the full Committee may attend a hearing and sit on 
the dais. That Member may also ask questions of the witnesses 
but only if yielded time by an actual Member of the 
Subcommittee who is present at the hearing. I would ask that 
Members who intend to participate in this fashion let the 
majority staff know as far in advance of the hearing as 
possible so that we may prepare accordingly. And it will remain 
the policy of the Committee that we do not allow Members to 
participate in our hearings who are not Members of the 
Judiciary Committee.
    We welcome everyone to today's hearing on the ``Release of 
Criminal Detainees by the U.S. Immigration and Customs 
Enforcement: Policy or Politics?''
    And I will recognize myself for an opening statement.
    On March 1, the sequestration deadline required that 
certain Federal agencies and departments to reduce their budget 
to avoid violating mandated spending caps established under the 
Budget Control Act of 2011. The Office of Management and Budget 
told them to ``reduce risks and minimize impacts on the 
Agency's core mission in service of the American people.'' DHS 
instead politicized sequestration by deciding to release 
detained criminal and illegal immigrants that are a priority 
for removal from the United States. This decision directly 
contradicts ICE's mission to promote homeland security and 
public safety through the enforcement of our immigration laws.
    Those released by ICE include: illegal immigrants convicted 
of or charged with theft, identity theft, forgery, and simple 
assault; illegal immigrants who had been arrested and charged 
with crimes because, under policy guidelines issued by the 
Director, illegal immigrants who are charged with a crime are 
not considered to be dangerous or criminal until they have been 
convicted; repeat immigration offenders, despite memos issued 
by the Director that these are enforcement priorities; and 
recent border-crossers, also one of the Director's enforcement 
priorities.
    Among those released was an illegal criminal immigrant who 
spent nearly 3 years in a detention center in Georgia. 
According to the New York Times, this illegal immigrant became 
an illegal immigrant when he overstayed a visa in 1991. He was 
detained in 2010 when he violated probation for a conviction in 
2005 of assault, battery, and child abuse, charges that sprang 
from domestic disputes with his ex-wife. He was transferred to 
ICE custody and has been contesting an existing order of 
deportation for over 3 years now.
    During oral testimony at House Appropriations last week, 
Director Morton confirmed that the Agency released 2,228 
detainees from detention. Of these, 629 were criminals and 
1,599 were non-criminals.
    However, Mr. Morton did not provide a breakdown of the non-
criminals. We do not know how many were charged with crimes but 
not yet convicted, are absconders, had existing orders of 
removal, or are criminal gang members. Additionally, Mr. Morton 
did not think that any of the individuals released were 
national security concerns.
    Simultaneously, DHS claimed that all the released illegal 
immigrants are at low priorities and have not committed serious 
crimes. This is inconsistent with the fact that both Secretary 
Napolitano and Director Morton have repeatedly indicated that 
the Agency detains only ``the worst of the worst illegal 
immigrants in light of their inability to detain, deport, and 
remove all the illegal immigrants the Agency encounters based 
on a lack of financial resources.''
    Irresponsible decisions to release detained illegal 
immigrants unreasonably and unnecessarily put the public at 
risk. The question remains: Are these individuals being 
released based on legitimate budgetary concerns or because 
sequestration gave the Obama administration a political reason 
to release deportable aliens? Surely other budgetary 
considerations could have come first such as cutting 
expenditures for conferences, detailees, or international 
travel.
    Releasing criminal and illegal immigrants on their own 
recognizance provides them little incentive to report to 
authorities and subject themselves to deportation. As we have 
learned from hard experience, many of them will simply abscond 
and become fugitives. Furthermore, recidivism rates are 
extremely high for any incarcerated population. The Director 
has already indicated that ICE has had to re-apprehend 4 out of 
the 10 of those criminal immigrants released for more severe 
crimes. To make matters worse, many of these individuals 
released lack the money, family, support, and the ability to 
get a job, not just because they are present in violation of 
the law, but because they have a criminal record. This release 
is a recipe for disaster that is irresponsible and unjustified.
    Ultimately, these nonsensical actions demonstrate the 
inability and lack of desire on behalf of the Administration to 
enforce the law even against illegal immigrants convicted of 
serious crimes. To make matters worse, they undermine the good 
will necessary to develop a common sense, step-by-step approach 
to improving our immigration laws.
    At this time, it is my pleasure to recognize the Ranking 
Member of the Committee, the gentleman from Michigan, Mr. 
Conyers, for his opening statement.
    Mr. Conyers. Thank you, Chairman Goodlatte.
    Ladies and gentlemen of the Committee, the title of today's 
hearing, the ``Release of Criminal Detainees by U.S. 
Immigration and Customs Enforcement: Policy or Politics?'', is 
really somewhat misleading.
    First, we have learned at a recent hearing before the 
Homeland Security Appropriations Subcommittee that 72 percent 
of the people released had no criminal record at all. Another 
21 percent had convictions for one or two misdemeanors only. 
Unless Director Morton, whom we welcome here today, tells us 
something different, this means that 93 percent of the people 
released by ICE were non-criminals or low, low level offenders.
    Second, the title of the hearing asks whether this was 
motivated by policy or politics. From my investigations, I do 
not believe it was either.
    I do not believe it was policy because we have no reason to 
think that someone sat down and decided to release thousands of 
detainees without reason. Remember, this Agency over the past 5 
years has consistently set deportation and detention records.
    I also do not believe this is about politics. The 
President's top legislative priority is enacting comprehensive 
immigration reform. I share the President's goal. The American 
people share the President's goal. And I know a growing 
majority of Members of Congress support that goal. This 
discussion does not advance that goal. So I do not see how it 
could be motivated by politics.
    So why did the Agency release more than 2,000 people from 
custody in February? Based on what we have learned, it seems 
that it was motivated by overzealous use of detention in late 
2012, combined with poor communication between the people in 
charge of ICE's budget and the people in charge of its 
enforcement operations.
    Why do I say that? Because ICE is funded by appropriations 
to detain an average of 34,000 people per day over a fiscal 
year. That comes out at a daily cost of about $122 per bed. But 
from October through December of 2012, ICE regularly detained 
well over 35,000 people per day. ICE nearly hit 37,000 
detainees on some days. Not only did this mean ICE was paying 
more for detention beds but it was paying more overtime, more 
fuel costs for additional transportation, and more of 
everything else required for detention. These secondary costs 
brought the real cost of detention closer to $164 per person 
per day and explain why ICE was maybe $100 million in the red.
    ICE tried to put the brakes on all of that spending when 
its chief financial officer figured out that the Agency was 
burning through its money faster than its budget would allow. 
In early January, the Agency was on pace to run out of money 
for custody operations by March 9, more than 18 days before the 
continuing resolution expired on March 27. ICE seems to have 
had no choice but to release some detainees to bring its 
spending in check.
    And so I would like to put this in the record that we need 
to really move with great care in terms of the assertions that 
were made to me in this misleading title.
    And I thank the Chairman for allowing me to make this 
statement.
    Mr. Goodlatte. I thank the gentleman from Michigan, and 
without objection, the remainder of his statement and the 
opening statements of all other Members will be made a part of 
the record.
    [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
    The title of today's hearing, the--``Release of Criminal Detainees 
by U.S. Immigration and Customs Enforcement: Policy or Politics?'', is 
somewhat misleading.
    First, we learned at a recent hearing before the Homeland Security 
Appropriations Subcommittee that 72% of the people released had no 
criminal record at all. Another 21% had convictions for one or two 
misdemeanors only.
    Unless Director Morton tells us something different today, that 
means 93% of the people released by ICE were non-criminals or low-level 
offenders.
    Second, the title of the hearing asks whether this was motivated by 
policy or politics, but I don't believe it was either.
    I don't believe it was policy, because we have no reason to think 
someone sat down and decided to release thousands of detainees without 
a reason. Remember: this agency over the past 5 years has consistently 
set deportation and detention records.
    I also don't believe this is about politics. The President's top 
legislative priority is enacting a comprehensive immigration reform. I 
share the President's goal. The American people share the President's 
goal. And I know a growing majority of Members of Congress support that 
goal. This discussion does not advance that goal, so I don't see how it 
could be motivated by politics.
    So why did the agency release more than 2,000 people from custody 
in February? Based on what we have learned, it seems this was motivated 
by the over-zealous use of detention in late 2012 combined with poor 
communication between the people in charge of ICE's budget and the 
people in charge of its enforcement operations.
    Why do I say that? Because ICE is funded by appropriations to 
detain an average of 34,000 people per day over a fiscal year. That 
comes at a
    daily cost of about $122
    per bed. But from October through December of 2012, ICE regularly 
detained well over 35,000 people per day. ICE nearly hit 37,000 
detainees on some days.
    Not only did this mean ICE was paying for more detention beds, but 
it was paying for more overtime, more fuel costs for additional 
transportation, and more of everything else required for detention. 
Those secondary costs bring the real cost of detention closer to $164 
per person per day and explain why ICE was maybe $100 million in the 
red.
    ICE tried to put the brakes on all of that spending when its Chief 
Financial Officer figured out that the agency was burning through its 
money faster than its budget would allow. In early January, the agency 
was on pace to run out of money for Custody Operations by March 9--more 
than 18 days before the Continuing Resolution expires on March 27. ICE 
seems to have had no choice but to release some detainees to bring its 
spending in check.
    Third, I want to remind everyone that Congress funds cost-effective 
alternatives to detention for a reason. We should place good candidates 
into alternatives to detention whenever possible and not just when we 
are forced to do so by budgetary constraints.
    It should tell us something that in a three-week period, Director 
Morton identified more than 2,000 detainees who would not pose any 
danger to the public if they were released.
    Not one of these people was required by law to be in detention. 
And, 93% were non-criminals or low-level offenders who probably never 
served prison time for their criminal convictions. We need to ask 
ourselves what they were doing in immigration detention in the first 
place if cost-effective alternatives are at our disposal.
    I hope Director Morton will explain whether it makes sense, from a 
law enforcement perspective or from the perspective of fiscal 
responsibility, to require him to keep a certain number of people in 
custody on any given day.

          We don't require the Bureau of Prisons to maintain a 
        minimum average daily population.

          We don't require the U.S. Marshals Service to 
        maintain a minimum average daily population.

          And I have yet to find a state or local law 
        enforcement agency that sets such requirements.

    It makes no sense that we would require ICE to maintain a minimum 
average daily population.
    I hope we can reconsider this apparent mandate in the future and I 
thank Director Morton for his testimony today.
                               __________

    [The prepared statement of Mr. Gowdy follows:]
  Prepared Statement of the Honorable Trey Gowdy, a Representative in 
Congress from the State of South Carolina, and Member, Committee on the 
                               Judiciary
    Mr. Chairman, thank you for calling this hearing. There are several 
things that have people vexed. This Administration claims it only 
detains the ``worst of the worst.'' Recently, this Administration 
released some detainees from detention claiming it did not have 
adequate funding to exercise the preeminent function of government, 
which is public safety.
    So, initially we have to examine that oft-repeated Administration 
talking point that it only detains the ``worst of the worst.'' If that 
is true, it necessarily follows that some of those ``worst of the 
worst'' were recently released.
    Just so we are clear, the Administration claims it released 
hundreds of detainees when in reality the Administration released 
thousands of detainees. Some of those detainees released were Level 1 
offenders, which means they were aggravated felons. Many of those 
released were Level II detainees, which means they were repeated 
offenders.
    So against the backdrop of knowing that some ``worst of the worst'' 
detainees were released, including aggravated felons we must examine 
who made the decision to release these detainees. Did Secretary 
Napolitano make this decision? Did she know about the decision ahead of 
time? Did she set the parameters of a danger assessment to decide who 
should be released and who should not be released? If she didn't make 
the decision herself precisely what kind of decision is important 
enough that she would actually be aware of it. If releasing thousands 
of detainees isn't worth troubling her with, what is?
    Why were the releases ordered in the first place? Secretary 
Napolitano contends she found herself between ``a rock and hard place'' 
so the only alternative was to release thousands of detainees. Frankly, 
Mr. Chairman, that explanation strains credibility.
    ICE was funded at the level to maintain 34,000 beds, which is 
enough to avoid this recent detainee release. An additional $240 
million was available that could have been used to detain these 
aggravated felons and repeated offenders that were released. ICE could 
have asked for permission to move money from less vital services to 
more vital services. For instance, did ICE consider reducing funding 
for training, for travel, for conferences, for printing, for 
promotional materials, for government vehicles? Those are not my 
suggestions Mr. Chairman. In the interest of giving credit where credit 
is due, those were recommendations from the President himself.
    Was releasing detainees really the only option at your disposal? 
Couldn't cut anything else? Nowhere else to turn, nothing else to do, 
except release detainees from custody?
    I will tell you, Mr. Chairman, that it appears as if the decision 
to release detainees was a political determination rather than a 
monetary one. It appears as if the release of detainees was part of a 
sequester campaign that included the fictional firing of teachers, meat 
inspectors being laid off, the closing of the White House for tours and 
now the release of aggravated felons. This is a concerted, curious 
effort to persuade the public that nothing whatsoever could be cut in 
government.
    It would be advisable in the future Mr. Chairman if the time spent 
trying to persuade the public that mayhem was about to break loose had 
been spent figuring out how better to protect the public from mayhem 
that was previously detained.
    Today's witness, Director John Morton explained, that some of those 
released were really low-risk detainees including those with drunk 
driving convictions, theft convictions, and ``simple assault and 
battery'' convictions.
    I appreciate Mr. Morton's prior service as a prosecutor. I do. But 
I disagree with any assessment of low-risk that includes recidivists.
    For those of us that have had to explain to parents, or spouses or 
loved ones, how a recidivist drunk driver was allowed back on the 
street, back into a vehicle, back behind the wheel under the influence 
of drugs or alcohol only to drive drunk again and kill or seriously 
injure a member of the innocent motoring public. That isn't low risk.
    Some of those released because of this public relations stunt gone 
wrong are going to reoffend. Some are going to abscond and fail to 
report for their removal hearing. There are going to be consequences 
for this decision and today we are going to find out who made this 
decision and why. Because public safety is the most important function 
government has. And it should never be jeopardized for political 
expediency.
                               __________

    [The prepared statement of Ms. Lofgren follows:]
 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
  Congress from the State of California, and Member, Committee on the 
                               Judiciary
    We have all read the recent stories about ICE's decision to release 
varying numbers of detainees from custody in a short period of time. As 
information began to percolate up from communities around the country, 
we have heard many different versions of what happened.
    Some stories suggested the detainees had already been granted bond 
by an Immigration Judge, but had been unable to come up with the 
necessary funds. Others said that thousands of detainees with criminal 
convictions-and some with gang ties-were released without any regard 
for public safety.
    Last week we learned from Director Morton that 2,228 detainees were 
released in February on account of budgetary constraints. 72% had no 
criminal history, and an additional 21% had misdemeanor convictions 
only. Director Morton testified then that to his knowledge none of the 
detainees posed a danger to the public or had gang ties.
    We also heard different stories regarding the budgetary constraints 
that led to the releases. The first explanation that came out had to do 
with the impending sequester. Secretary Napolitano recently testified 
before the Senate that sequestration would mean a decrease in detention 
bed space. That explanation is certainly plausible. Across-the-board 
spending cuts that force us to take a thoughtless approach to our 
spending with undoubtedly lead to cuts that are imprecise.
    But as it turns out, that is not the whole story. Under the 
continuing resolution that expires later this month, ICE is funded at a 
level to sustain an average daily detainee population of 34,000. But 
months into the current fiscal year, with the sequester looming, and 
the expiration of the current CR on the horizon, ICE was exceeding its 
average daily population by more than 2,000 beds per day. This means 
ICE's detention bed costs--as well as the secondary costs of paying 
officers, fuel charges, and the like--were outpacing the approved 
spending plan.
    ICE's Enforcement and Removal Operations (ERO) was burning through 
its funds for custody operations at an unsustainable pace by early 
January. Without reducing costs or raiding other accounts for 
unobligated funds, ERO was looking at running out of money for custody 
operations 18 days before the end of the CR.
    So why didn't ICE reprogram funds to cover the shortfall created by 
ERO's overspending? Director Morton testified last week that doing so 
would have been like robbing Peter to pay Paul. Taking funds from 
another account--such as the money budgeted for Homeland Security 
Investigations--would have meant taking Special Agents off the streets 
and interfering with their criminal investigations.
    Faced with that reality, ICE officials decided on an approach in 
which they would identify detainees for release. These detainees should 
not be subject to mandatory detention, should not pose a danger to the 
public, and should be released on orders of supervision or into formal 
Alternatives to Detention programs.
    As ICE was already far surpassing the 34,000 detention-bed average, 
a temporary reduction in detainees would keep the agency on track to 
meet that average by the end of the current fiscal year. That is what 
ICE did.
    ERO's detention efforts throughout the Fall and early Winter were 
setting new records and were entirely unsustainable in light of the 
CR--especially as the now-realized threat of the sequester loomed. They 
had to reduce spending.
    Aside from these reductions, I propose that we spend some time this 
morning talking about the so-called ``34,000 detention-bed mandate'' 
that is a big reason for the controversy before us. As we know, our 
appropriations acts now require ICE to ``maintain a level of not less 
than 34,000 detention beds.''
    There is some disagreement about the exact meaning of this phrase. 
The agency and some appropriators believe this means that over an 
entire fiscal year, the average daily population in detention must be 
no lower than 34,000 beds. Other appropriators seem to believe this 
means that on any given day, ICE must have no fewer than 34,000 people 
in custody.
    Either way, both sides see it as a mandate to keep people in 
detention without regard to any other factors. To me, the requirement 
has always meant nothing more than that at a given time, 34,000 
detention beds must be available for use by ICE should the agency need 
them. That is the clearest way to read the language itself, and it 
makes more sense than any other interpretation.
    From a law enforcement perspective--where detention decisions are 
based on need, not arbitrary mandates--that would make a lot more 
sense. The same is true if you were to think of it from the perspective 
of fiscal responsibility. I suppose that is why the Heritage Foundation 
encourages a much wider use of cost-effective alternatives to detention 
for appropriate candidates.
    Policy or politics? I don't really think it was either. Based on 
what we now know, the releases were the product of poor budgetary 
practices combined with the kind of record-setting enforcement efforts 
that we have come to expect from ICE.
                               __________

    Mr. Issa. Mr. Chairman?
    Mr. Goodlatte. Yes?
    Mr. Issa. I would ask unanimous consent that along with the 
Ranking Member's insertion, that the order of the Office of the 
President, the executive order of January 14, be placed in the 
record next to it.
    Mr. Goodlatte. Without objection, it will be placed in the 
record.
    [The information referred to follows:]



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________

    Mr. Goodlatte. We welcome our only witness today, Director 
John Morton of U.S. Immigration and Customs Enforcement. And I 
will begin by introducing him, but first, Director Morton, if 
you would please rise and be sworn in.
    [Witness sworn.]
    Mr. Goodlatte. Let the record show that the witness 
answered in the affirmative.
    And we welcome you again. John Morton is Director of 
Immigration and Customs Enforcement at the U.S. Department of 
Homeland Security. Immigration and Customs Enforcement is the 
second largest investigative agency in the Federal Government 
and charged with enforcing the Nation's immigration laws and 
investigating the illegal movement of people and goods into, 
within, and out of the United States.
    Prior to Director Morton's appointment by President Obama, 
he spent 15 years at the Department of Justice and served in 
several positions, including Assistant United States Attorney, 
Counsel to the Deputy Attorney General, and acting Deputy 
Assistant General of the Criminal Division.
    Director Morton received a law degree from the University 
of Virginia School of Law.
    And, Director Morton, you are welcome to proceed with your 
testimony.

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

    Mr. Morton. Good afternoon, Chairman Goodlatte, Mr. 
Conyers, Members of the Committee.
    While much has been made of ICE's recent reduction in 
detention levels, the truth is that the reduction was a direct 
result of ICE's efforts to stay within its budget in light of 
the continuing resolution and the possibility, now a reality, 
of sequester.
    As the Committee knows, we do not have a traditional 
appropriation for fiscal year 2013. Rather, ICE is funded 
through a continuing appropriation at fiscal year 2012 levels 
through next Wednesday, March 27, and we do not yet know what 
Congress will provide ICE for the remaining 6 months of the 
fiscal year.
    Additionally, as of March 1, we are living under a 
sequester of 5 percent of our annual funds, a reduction just 
shy of $300 million. Thus, while the expiring CR provides ICE 
budget authority to maintain an average of 34,000 detention 
beds, sequestration has, in turn, reduced those same funds by 5 
percent, a reduction that if left unchanged by Congress, will 
affect ICE's ability to maintain our average daily population 
going forward.
    Despite these challenges, ICE continues to produce 
impressive enforcement results. During the first 5 months of 
the 6-month CR--that is, the portion without sequestration--we 
were solidly on pace to maintain an average level of 34,000 
beds. Indeed, on the last full week of that period, our average 
annual daily population was 33,925 beds. Mr. Chairman, this is 
the highest level of detention ICE has ever maintained over the 
first 5 months of any fiscal year in history.
    This comes on the heels of ICE maintaining 34,260 beds over 
last fiscal year and having removed 409,000 illegal immigrants, 
225,000 of whom were criminals, again the highest levels in all 
categories we have ever achieved.
    At times during this fiscal year, we have maintained well 
over 34,000 beds due in part to increased support we have given 
the Border Patrol along the Southwest border. On October 2, 
2012, for example, we had an actual level of 36,036 beds in 
use. With budget authority that only supports 34,000 beds, we 
obviously could not maintain such highs over the year. So we 
had to temporarily lower our detention to levels below 34,000 
to ensure that at the end of the CR we remained within budget.
    This need to lower our detention levels was heightened by 
three factors.
    First, two of the funds we use to maintain detention space 
did not receive the funds expected. The Breached Bond Fund, in 
particular, had a projected shortfall of $20 million for the 
fiscal year.
    Second, 4 months into the fiscal year on January 18, 2013, 
we were maintaining an average daily excess of 630 beds over 
34,000. Had we continued to operate at this level, we would 
have faced a yearlong shortfall of $128 million.
    Finally, our immigration enforcement expenses for 
transportation and overtime exceeded our CR budget by $16 
million.
    In the context of a known full-year budget, we can usually 
address these sorts of issues over the balance of the fiscal 
year. This year, however, we only had 6 months of known funding 
and uncertain levels thereafter. Therefore, ERO, in 
coordination with the chief financial officer, decided to 
temporarily reduce our detention levels at the end of the CR to 
stay within budget. To do this, ERO released some detained 
aliens to other forms of supervision on a weekly basis 
throughout the month of February. Local ERO offices were 
instructed to focus on aliens who were not subject to mandatory 
detention and who did not pose a significant threat to public 
safety.
    Everyone released for budget reasons remained in removal 
proceedings. From February 9 through March 1, on average, we 
released over 700 aliens a week to this end. Contrary to some 
reports, those released for budget reasons did not include 
thousands of criminals who posed a significant risk to public 
safety. Indeed, 70 percent of those released had no criminal 
record at all. The remaining 30 percent were either 
misdemeanants or other criminals whose prior conviction did not 
pose a violent threat to public safety.
    During this period, most of our field offices released on 
average fewer than 15 detainees each week. Five larger offices 
released an average of 92 detainees per week. In total, we 
released 2,228 aliens over a 3-week period in February for 
solely budgetary reasons, bringing our year-to-date detention 
average on the last full week prior to sequester to 33,925, 
99.8 percent of 34,000.
    Of the 2,228 individuals released, 629 had a past criminal 
conviction. 460 were level 3 offenders, our lowest 
classification; 160 were level 2 offenders, our medium 
classification; only 9 were level 1 offenders--excuse me--8. We 
are reviewing all of these cases as they progress and will 
detain or adjust the conditions of release as necessary. 
Indeed, as the Chairman has already noted, there are only four 
level 1 offenders on release.
    In short, there are no mass releases of dangerous criminals 
underway or any planned for the future, just efforts to live 
within our budget. We will continue to do our level best over 
the remaining 6 months of the year to maintain strong detention 
levels, subject to the requirements of the sequester and 
whatever funding Congress provides us at the end of the month.
    Thank you.
    [The prepared statement of Mr. Morton follows:]



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    Mr. Goodlatte. Thank you, Director Morton.
    I will recognize myself to begin the questioning.
    Of the more than 2,200 detainees that have been released so 
far, several hundred are criminal aliens who have been 
convicted of crimes such as theft, fraud, and other crimes 
perpetrated on people in our society. Was the decision to 
release detained illegal and criminal immigrants a unilateral 
decision made by you?
    Mr. Morton. It was a decision made by the career officials 
in the Agency, and in particular, Mr. Mead and our chief 
financial officers. I support their decision completely, and to 
the extent that your question asks was it made by anybody 
outside of the Agency, the answer is a categorical no.
    Mr. Goodlatte. Did you coordinate with any officials at DHS 
headquarters in making the decision to release potentially 
dangerous illegal immigrants?
    Mr. Morton. None whatsoever.
    Mr. Goodlatte. Do you even have the authority to act 
unilaterally with respect to releasing thousands of detained 
illegal immigrant aliens?
    Mr. Morton. Well, first of all, the answer is yes. The 
authority, by statute, rests with me and the officers of 
Agency. In fact, other than the Secretary, we are the only 
individuals in the department with that authority.
    Mr. Goodlatte. And you are saying that a decision to 
release 2,200 people for this purpose, whatever the purpose may 
have been, whether it is to save money or for other reasons, 
had no communications with the higher department to which ICE 
is an agency that you report.
    Mr. Morton. That is correct. These decisions were made 
inside the Agency for budgetary reasons.
    Mr. Goodlatte. I have in front of me a memorandum dated 
December 8, 2010 that you submitted to Secretary Napolitano 
under the subject matter, expanding expedited removal to felons 
unlawfully in the United States, where you set forward the 
purpose of making that request, the background for making the 
request, your discussion about the request, and at the bottom, 
your recommendation below which is a signature line for the 
approval of the Secretary. Is that standard procedure for you 
and others in agencies within the Department of Homeland 
Security for making decisions regarding changes in policy at 
the department?
    Mr. Morton. That was a recommendation to the Secretary 
about possible ways to streamline removal efforts, and that one 
had to do with expedited removal. So that was specific.
    Mr. Goodlatte. I understand, but why would the decision in 
that case have required you to make that request of the 
Secretary and the decision here to release onto our streets, as 
opposed to the expedited removal and deportation, 2,200-plus 
people? In fact, we have seen documents that suggest that the 
plans are to release several thousand more onto our streets 
without any approval from Secretary Napolitano.
    Mr. Morton. The regulatory authority for expedited removal 
is set by the Secretary, not by the Agency, unlike detention 
releases. ICE has the exclusive detention authority within the 
department.
    Mr. Goodlatte. So you are saying that if you want to 
increase the deportation of people outside the country and 
expedite that, you have to seek the approval of the Secretary, 
but if you want to release the same people back onto the 
streets of the United States where they can commit more crimes, 
you do not have to seek the Secretary's approval for that 
purpose.
    Mr. Morton. No, that is not what I am saying. I am saying 
that if I wish to change the rules for expedited removal, I 
have to go to the Secretary with that proposal. That authority 
does not rest exclusively with the Agency. And that was about a 
very specific statutory and regulatory power that is not held 
exclusively by ICE.
    Mr. Goodlatte. I understand that with the exception of 
custody operations, ICE was operating under the presidential 
budget, not at the budget set by Congress under the continuing 
resolution. As a result, all the other accounts in ICE carried 
a balance of $240 million for the year and $120 million for the 
past 6 months. Additionally, your CFO indicated that ICE 
carried forward $100 million to $120 million in user fee 
balances.
    Can you tell us why ICE did not ever submit a reprogramming 
request to Appropriations which can be handled at the Committee 
level rather than releasing detained illegal immigrants? Is it 
not true that both ICE and DHS could issue reprogramming 
requests to cover the costs of these released detainees?
    Mr. Morton. We can seek reprogramming requirements. That is 
absolutely true, Mr. Chairman. And we did not in this instance.
    I am trying to live within the appropriations that Congress 
gives us. Our single largest appropriation is for custody 
operations. And we were trying to live within our budget, 
recognizing that we had to go the full year. We did not have a 
full-year appropriation. We only had 6 months. Sequester was 
coming, and we play it very tight to the vest in every 
operation that we did other than custody operations where it 
was important enough and we operated at a level above what we 
were appropriated for much of the fiscal year. And I did not 
want to rob Peter to pay Paul. My view is that we need to 
maintain the operations of the Agency. I do not want to 
furlough people, and I need to make rational judgments across 
the PPA's that we are given by the Appropriations Committee.
    Mr. Goodlatte. The Appropriations Committee is very used to 
dealing with excess expenditures necessitated by changed 
circumstances and do respond and do respond quickly to those 
requests.
    But I am pleased that you acknowledged that you could have 
done that and dipped into surplus funds from fees or from other 
funds carried over from other operations of the department 
rather than releasing criminal aliens onto our streets.
    And I will ask unanimous consent to enter the following 
documents in the record: a letter to Secretary Napolitano from 
Senator Grassley and I requesting specific information on the 
detainees released as a result of sequestration. We expect ICE 
to respond to this request for information.
    A letter from the Pinal County Sheriff, Paul Babeu, stating 
that on February 23, 2013, Immigration and Customs Enforcement 
processed and released 207 illegal immigrants from the ICE Eloy 
facility in Arizona on this date alone. Of the 207, a total of 
48 had been charged or convicted with either manslaughter, 
child molestation, aggravated assault, weapon offenses, 
forgery, drug offenses, or other serious crimes.
    And third, a memo from Director Morton to Secretary 
Napolitano requesting the expansion of expedited removal to 
felons unlawfully in the United States, which I referred to 
earlier.
    Without objection, those will be made a part of the record.
    [The information referred to follows:]


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                               __________

    Mr. Goodlatte. My time has expired.
    And I now recognize the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    The Agency, Director Morton, has been accused of releasing 
thousands of detainees from its custody to score political 
points in advance of sequestration. But based on what we have 
learned over the past week, it looks more like ICE was forced 
to tighten its belt beginning in January because it had been 
spending excessively throughout the fall to detain thousands of 
people more per day than its budget would allow.
    Can you put some further explanation onto this assertion?
    Mr. Morton. Yes, Mr. Conyers. Let me just start out by 
setting the context here. There are about 350,000 people in 
immigration proceedings at any given time. The vast majority of 
those people are not detained, and that is by statutory design, 
that is, congressional design. Congress has directed the Agency 
to detain certain individuals by mandate. Those cases are known 
as mandatory detention. There are certain criminals and certain 
non-criminals that we must detain. And the rest of the system 
is designed for consideration of release on conditions. The 
Agency has that power, and it is also overseen by immigration 
judges who may redetermine the Government's initial decisions 
by ICE.
    So the idea that, simply because a person is in the country 
unlawfully or they have a criminal conviction, they are 
detained is not true. In fact, the use of detention is the 
exception to the rule, given the number of people that are in 
proceedings. There are 350,000 people at any given time. We 
have resources on the very best of days for about 34,000 to 
35,000 people, and many of those people are not even in formal 
immigration proceedings. They are border cases through 
expedited removal.
    So we have to manage our budget, and our levels go up and 
down. Sometimes we are above 34,000; sometimes we are below. 
Sometimes we do not have enough space to take a particular 
person into detention, so we place them on an alternative to 
detention, a bracelet, a monitor or they have to call in. They 
are on an order of supervision. They have a bond. 150,000 
people are on bonds right now in immigration proceedings. Some 
of them have criminal convictions; some of them do not. And 
that is by statute. That is by congressional design. It is 
exactly like the criminal justice system. In fact, the 
detention system for immigration actually has mandates that you 
do not see in the criminal justice system.
    Mr. Conyers. That is a very thorough explanation that I 
find quite reassuring.
    You have been doing an outstanding job as Director for how 
long now?
    Mr. Morton. I am about to come to the end of my fourth 
year. I will be the longest serving head of the agency ICE has 
ever had.
    Mr. Conyers. Well, that is great.
    Can you explain how during the months of October, November, 
and December ICE was detaining 2,000 or 3,000 more people on 
any given day than it could afford through its budgetary 
circumstances to detain?
    Mr. Morton. Yes, sir. So at the end of last year, we were 
operating at a very high operational tempo, in large part 
because one of the things I have tried to do: provide the 
Border Patrol much greater detention support. And so, for 
example, we are detaining on any given day 6,000 to 7,000 
people in Texas for the Border Patrol, and we are then formally 
removing them through the ICE powers instead of simply 
voluntary returns.
    That meant that at the end of the fiscal year, we were 
operating at quite a high level of detention, 36,000. If we had 
had full-year funding, we could have adjusted over time to make 
sure that we ended the year at 34,000 on average using whatever 
funds that we had. This particular year, we had a CR, and 2 to 
3 months into that CR, it became clear that we were not going 
to have a good sense of what the remaining funding would be for 
the year, and it also became clear that sequester might, in 
fact, be a reality for us. And we had to do, as you said, some 
belt tightening. It meant releasing certain people so that we 
could live within our budget.
    Everybody remained in proceedings. Everybody is on some 
form of supervision. Our intent is still to remove them from 
the United States. We are reviewing all of the cases 
continually. If we made a mistake or there are new 
circumstances that suggest that somebody should come back into 
our custody, they will. And as the Chairman has already noted, 
we have made a handful of decisions already to return people to 
our custody, both level 1 and level 2 offenders.
    Mr. Conyers. Thank you very much.
    I have been permitted one quick question as my time has 
expired. But we are only a few days away from the end of the 
CR, and we are more than 2 weeks into sequestration. Can you 
tell us any more about your budgetary outlook today?
    Mr. Morton. I cannot, Mr. Conyers. I obviously hope that 
Congress passes a budget for ICE by March 27. I understand 
where some of the concerns come from. I understand that people 
wonder about some of the releases. I recognize that we are 
dealing in an extraordinary circumstance, where we had a CR for 
6 months. We have a mandate from Congress to have a certain 
level of appropriated beds, and on top of that, we have a 
sequester from this very same United States Congress that says 
reduce your budget by 5 percent. And our single largest 
appropriation of $2 billion is for custody operations.
    The next largest appropriation we have is for domestic 
investigations, and when I say domestic investigations, I mean 
operations along the Southwest border to go after drug dealers, 
alien smugglers, child pornographers, child exploitation. That 
is when I talk about robbing Peter to pay Paul. These are very 
real decisions that we have to make at the Agency, and we do 
the very best we can in a circumstance where our funding is 
uncertain at best.
    Mr. Conyers. Thank you, Director Morton, and thank you, 
Chairman, for the additional time.
    Mr. Goodlatte. I thank the gentleman.
    The Chair now recognizes the former Chairman of the 
Committee, the gentleman from Texas, Mr. Smith, for 5 minutes.
    Mr. Smith. Thank you, Mr. Chairman.
    Director Morton, under the Immigration and Nationality Act, 
aliens not subject to mandatory detention may be released on 
bond if, one, they do not pose a danger and, two, are likely to 
appear for any future proceeding.
    In addition to immigration law, you have the Office of 
Management and Budget directive to avoid actions that would, 
``raise life, safety, or health concerns.''
    Under the document you gave us marked ``sensitive 
material,'' you say that you released 629 individuals in the 
criminal category. 159 of those individuals had either been 
convicted of or charged with a felony or multiple misdemeanors. 
Do you not consider those individuals to be a threat to the 
safety of the American people?
    Mr. Morton. I am, obviously, concerned about people who 
engage in criminal offenses in the United States while here 
unlawfully. That is why I have placed----
    Mr. Smith. But are the individuals who have been charged or 
convicted with a felony or multiple misdemeanors not a threat 
to the American people?
    Mr. Morton. That is too simple a representation. If I 
might, Mr. Smith, let me give you a real example of one of the 
level 1 offenders we have released.
    Mr. Smith. No. You are changing the subject on me. Do you 
want to answer my question or would you prefer not to?
    Mr. Morton. It depends on the case. Generally speaking, I 
think that criminal offenders should be the Agency's highest 
priority, but people have different circumstances. If you have 
a 40-year-old conviction, then that is different.
    Mr. Smith. Let me answer the question--let me answer the 
question on behalf of the American people. I think the American 
people think that your releasing individuals convicted or 
charged with a felony or multiple misdemeanors is a threat to 
their safety.
    Now, these individuals whom you did release--did they all 
post bond?
    Mr. Morton. Not all of them. The law allows us to release 
people on various types of supervision.
    Mr. Smith. What percentage were released on bond?
    Mr. Morton. I do not know the percentage. We are working to 
have an exact breakdown. We put about 180 individuals on the 
highest form of release, which is alternatives to detention.
    Mr. Smith. I understand that.
    Let me follow up on a point that the Chairman made a while 
ago and that was his question about why you did not use the 
user fees in your reserve account which amounts to tens of 
millions of dollars and why you did not request from the 
appropriators the permission to reprogram. Your response was 
you wanted to live within your budget. But that does not have 
anything to do with living within your budget. If you redirect 
those funds to prevent you from releasing these individuals, 
you would still live within your budget. You are not asking for 
more money. You are just asking to transfer money from one 
department or account to another, and I do not understand why 
you did not do that if that would have enabled you to--
prevented you from having to release these, I would call it, 
dangerous individuals.
    Mr. Morton. So there are two issues. There is one using the 
funds that we were appropriated, and then the user fees of some 
unobligated balances.
    Mr. Smith. Right.
    Mr. Morton. We are----
    Mr. Smith. Whether you spend those fees or not has nothing 
to do with whether you balance your budget. That is the point. 
You could have used those fees and still claimed to balance 
your budget.
    Mr. Morton. No. We could have sought a reprogramming from 
the Committees.
    Mr. Smith. Why did you not?
    Mr. Morton. Because as I said, we want to live within the 
budget we were given. Our goal----
    Mr. Smith. But even if you had used those other funds, you 
would have been living within the budget and you might have 
done a whole lot to protect the American people from dangerous 
individuals.
    Mr. Morton. No. I did not want to rob Peter to pay Paul 
from within the Agency's budget.
    Mr. Smith. Yes, I know. But that is my point. You are 
taking from one and putting it to another. That is not spending 
additional money. Robbing Peter to pay Paul is not going 
outside your budget. It is using the same amount of money. But 
we are going to disagree on that. I just think that you did not 
actually answer the question.
    Last year, you all requested, I think, detention beds for 
1,200 fewer than Congress provided. If you need more detention 
space, why did you not request more detention beds?
    Mr. Morton. So the President's budget asked for 32,800 
detention beds.
    Mr. Smith. Right. Congress provided 1,200 more, the 34,000.
    Mr. Morton. And it also asked for an increase in 
alternatives to detention with language that would have allowed 
us to go back and forth, and supplement the hard beds, if we 
needed.
    Mr. Smith. If funding were not a consideration, how many 
detention beds could you use?
    Mr. Morton. Well, funding obviously is a consideration. We 
are at the highest level we have ever had----
    Mr. Smith. I know. The question was how many would you need 
if you wanted to provide total safety to the American people.
    Mr. Morton. I am not trying to be difficult. You can only 
answer that question if you factor in alternatives to detention 
and how quickly can we move people through the system.
    Mr. Smith. No, that was not my question. Do you have any 
idea, any concept of how many beds you would need if you were 
to satisfy all demands?
    Mr. Morton. If I were to satisfy all demands----
    Mr. Smith. Legitimate demands.
    Mr. Morton. If I were to satisfy all demands, you would be 
looking at an ICE with a budget that would be unsustainable. As 
you and I know----
    Mr. Smith. No, no. How many beds would you need?
    Mr. Morton. How many beds would I need to detain and remove 
11 million people from the United States or more?
    Mr. Smith. No. That was not my question. How many do you 
need to do to fulfill your job. In other words, you have 
34,000. How many more would you need?
    Mr. Morton. I mean, again that begs the question of what is 
my job and is my job to remove every single person who is here 
in the United States----
    Mr. Smith. Mr. Chairman, I do not think I am getting a 
direct answer. So I am afraid I will have to yield back.
    Mr. Goodlatte. The gentleman yields back.
    At the beginning of the hearing, I was not under the 
impression that the Chairman of the Subcommittee on Immigration 
and the Ranking Member had opening statements. In fact, they 
did and they both graciously agreed to put those in the record. 
But I wanted to jump ahead to recognize them in thanks for 
their forbearance on their statements. So I will now recognize 
the gentlewoman from California, Ms. Lofgren, for 5 minutes.
    Ms. Lofgren. Well, thank you, Mr. Chairman, and I agree 
that it was more important to go directly to the testimony than 
to hear our opening statements.
    I think part of the problem here, the confusion was the 
Secretary of Homeland Security's statement, and I think the way 
it was taken was not that there was an overspending problem in 
the custody element but that somehow this was in reaction to 
the discussion of sequester. And then people felt, well, you 
know, we are being threatened, and if we go through sequester, 
then this will happen. And it just created a very bad 
impression. And I think that is part of what we are trying to 
deal with here, a misimpression that was created by that 
statement.
    If I understand--the Appropriations Committee gets, I 
think, almost constant reports on how many people are in 
detention and removal, and we have access to them as well. They 
give the number of people in custody who have gone through the 
system, not just the people who are in custody at midnight, 
which I think reflects the numbers that you gave to us in 
looking at this. And I would ask unanimous consent to put these 
into the record.
    Mr. Goodlatte. Without objection, so ordered.
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                               __________
    Ms. Lofgren. For example, for September 30, it was 35,271. 
For October 31, it was 36,233. So as a matter of fact, you 
could go through. It was in excess of 34,000 every single day 
there was a report. And so it looks to me like you had an 
overspending problem that needed to be corrected.
    Here is the question. In our use of alternatives to 
immigration detention, is our standard substantially different 
than what is being used in State courts with people who are 
actually arrested for crime? For example, in Santa Clara 
County, we release people on ankle bracelets all the time 
because we need them to appear and the failure to appear rate 
is low. Is our standard much different than a locality?
    Mr. Morton. It is not. We have a system that Congress has 
designed that operates just like the criminal justice system. 
There are decisions that have to be made as you go through 
immigration proceedings which, by the way, are not penal. They 
are administrative--as to whether or not someone should be 
detained. The Agency has a fair amount of discretion to set 
that initially, and then it is reviewed by judges, just as in 
the criminal justice system, who can set bond, can order you 
released, and in fact, do. That is the norm of the system is 
most people are released.
    Might I just say one thing on your comment with regard to 
the Secretary?
    Ms. Lofgren. Sure.
    Mr. Morton. The Secretary was talking about the potential 
effects of sequester. Obviously, that was a consideration for 
us. She was entirely correct in suggesting that sequester would 
have a significant effect on our ability to maintain the 
detention levels that had been appropriated to us. And again, I 
think she was trying to express the real concern----
    Ms. Lofgren. Well, if I may, I am not suggesting any ill 
motive on her part. I just think the way it was reported 
created a lot of suspicion, and that is why we are here trying 
to dispel those suspicions if there are facts to support that.
    You know, one of the things that I am mindful of--we know 
from the Department of Justice that the single most common 
Federal felony prosecution in America today--what do you think 
it is? It is not drugs. It is reentry after removal. That is a 
felony conviction. And it is the most commonly prosecuted 
Federal offense in the system. Obviously, we are not for people 
reentering after removal, but if that is the felony conviction, 
it certainly poses a different type of concern than if somebody 
is convicted of a crime of violence or something of that 
nature.
    Do you have the stats on if there were felons released, was 
it reentry after removal? Do you have the data on that?
    Mr. Morton. We do. There were some immigration offenses, 
though not many. Most of the level 2s were either multiple 
misdemeanants or non-violent felons who did not qualify for an 
aggravated felony. Even of the four level 4s that are on the 
street, Ms. Lofgren, they are cases that are really 
challenging. I tried to give Mr. Smith an example and if I 
might give you an example.
    One individual who was released in Arizona has a conviction 
for theft offenses and drug offenses, and at first glance you 
might say, okay, what is ICE doing? That individual is 68 years 
old. They are a lawful permanent resident, and they have been a 
lawful permanent resident for 44 years, and an immigration 
judge made a determination that that person was not a danger to 
the community. And that just goes to show you these are hard 
calls that have to be made on a case-by-case basis, and that is 
exactly what we have done.
    Ms. Lofgren. Alright.
    Just one final question. The fee account has been 
mentioned, and you indicated you did not want to rob Peter to 
pay Paul. What use are those fees going to be made to, and 
could you not have taken the Operation in Our Sites funding and 
put it instead into detention?
    Mr. Morton. So two things are going on. When I say that I 
do not want to rob Peter to pay Paul, I do not want to look to 
the other large appropriations to maintain detention funding 
above and beyond the appropriation that is given to us. Why? 
For very simple reasons. Our biggest appropriation is custody 
operation. Our second biggest appropriation is domestic 
investigation. And to put that into context, that means going 
after child pornographers, drug dealers, alien smugglers, 
export control violations, and that is an important part of the 
Agency's work.
    Ms. Lofgren. So you could have gone after the Operation in 
Our Sites funds.
    Mr. Morton. I could have moved funds from our 
investigations, including those that you had some concern 
about. Yes, I could have. I did not elect to do that.
    The user fees are historical unobligated balances, and we 
are considering how to deal with that. They have certain 
restrictions on how they can be spent. They are not dedicated 
solely to detention funding, and that is something that we want 
to explore.
    Ms. Lofgren. I see my time has expired. I thank the 
Chairman and yield back.
    Mr. Goodlatte. I thank the gentlewoman.
    And the gentleman from South Carolina, the Chairman of the 
Immigration Subcommittee, Mr. Gowdy, is recognized for 5 
minutes.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Morton, I will tell you from this vantage point, it 
does look like the decision to release detainees was a 
political determination and not a monetary determination. It 
appears to me that the release of detainees was part of a 
sequester campaign that included the fictional firing of 
teachers, the closing of the White House for student tours, the 
displacement of meat inspectors, and now we are going to 
release some aggravated felons onto the street.
    Now, I have counted six times you have said you did not 
want to rob Peter to Paul. I do not want Peter or Paul to rob 
one of our fellow citizens because you guessed wrong on who to 
release.
    So what is a level 1 violator?
    Mr. Morton. A level 1 offender--first, I obviously disagree 
with your characterization about these being political----
    Mr. Gowdy. Well, that is fine. You can use your time to 
disagree with my characterization. Do not use mine.
    What is a level 1 violator?
    Mr. Morton. With regard to level 1 offenders, they are 
aggravated felons, as defined by Congress.
    Mr. Gowdy. And how many were released?
    Mr. Morton. There are four presently.
    Mr. Gowdy. How many were released?
    Mr. Morton. Eight were released. We have four presently.
    Mr. Gowdy. And what went wrong with the other four?
    Mr. Morton. What is that?
    Mr. Gowdy. Why were there eight released and only four 
currently?
    Mr. Morton. So two were released when the computer records 
were not correct, and we went back and we looked at them and we 
brought them back in. One was a mistake.
    Mr. Gowdy. What kind of mistake?
    Mr. Morton. Just where the instructions to the field were 
not carried out correctly.
    Mr. Gowdy. Alright. So if it is $122 a day to house four 
level 1 aggravated felons, then releasing them saves you what? 
About $600 a day?
    Mr. Morton. Each day. That is right.
    Mr. Gowdy. You cannot find $600 anywhere else in your 
budget?
    Mr. Morton. We make determinations on a case-by-case basis. 
We have got to----
    Mr. Gowdy. Can you find $600 somewhere else in your budget?
    Mr. Morton. The question is whether that $600 is well spent 
on those people or someone else, and when it comes to somebody 
who has been a 44-year lawful permanent----
    Mr. Gowdy. I am not talking about the 44. Was he a level 1?
    Mr. Morton [continuing]. And they are 68 years old----
    Mr. Gowdy. Was he a level 1? Was he a level 1, Mr. Morton?
    Mr. Morton. He is a level 1 offender.
    Mr. Gowdy. He was one of the four that you released?
    Mr. Morton. Yes, he is released. That is right.
    Mr. Gowdy. Mr. Morton, who made the decision to release 
detainees as part of your effort to comply with sequestration?
    Mr. Morton. The determination was made by Mr. Mead, the 
Executive Associate Director for Enforcement and Removal 
Operations, in consultation with the chief financial officer.
    Mr. Gowdy. Who is John Sandweg?
    Mr. Morton. Mr. Sandweg works for the Secretary.
    Mr. Gowdy. Were there any conversations with him?
    Mr. Morton. Not that I am aware of.
    Mr. Gowdy. Were there any conversations with the Secretary?
    Mr. Morton. Not that I am aware of. I think the Secretary 
has noted that she was surprised and regretted the timing of 
notification, and I agree with that.
    Mr. Gowdy. If the release of aggravated felons does not 
rise to the level of something that the Secretary of the 
Department of Homeland Security should know about, what does 
rise to the level?
    Mr. Morton. Listen, we release people every day, and the 
idea that we are going to review every single person that is 
released----
    Mr. Gowdy. Do you release thousands of people every day?
    Mr. Morton. We release thousands of people every month. We 
operate in a system--we had 470,000----
    Mr. Gowdy. But you do not blame it on sequestration, do 
you, Director Morton?
    Mr. Morton. What is that?
    Mr. Gowdy. You do not blame it on sequestration when you 
release the others. It is not part of this strategy to get the 
public fired up that mayhem is upon us, that we are closing the 
White House for tours, that we are firing teachers in West 
Virginia. We are going to have to release level 1 aggravated 
felons because of sequestration.
    Mr. Morton. First of all, that was never said. And the 
system allows for the release on supervision of people going 
through immigration proceedings. We are not detaining people 
for penal reasons, solely for purposes of removal. And as I 
have said, the vast majority of people in proceedings by 
statutory design are not mandatory detention----
    Mr. Gowdy. Who are level 2 violators, offenders?
    Mr. Morton. They are either multiple misdemeanants or 
felons that Congress has defined as something other than----
    Mr. Gowdy. And DUI would be a misdemeanor. Right?
    Mr. Morton. DUI----
    Mr. Gowdy. First offense? How about second offense?
    Mr. Morton. It depends on State law, but most times----
    Mr. Gowdy. Well, how about the States where you release 
people? Did you release any recidivist drunk drivers?
    Mr. Morton. Yes.
    Mr. Gowdy. How many?
    Mr. Morton. I do not have the exact number, but we have 
released many individuals who had DUI offenses.
    Mr. Gowdy. Repeat offender DUI.
    Mr. Morton. Repeat offender DUIs. Most of them were single 
offenders, but some would be DUIs. I would note for the record, 
Mr. Gowdy, Congress has not provided that a DUI is a ground of 
removal. In fact, most misdemeanors are not a ground of 
removal. It is the Agency, by Agency policy, that factors that 
in. I cannot order you removed for having committed a DUI----
    Mr. Gowdy. No, you cannot, Director, but you certainly can 
request a programmatic rescheduling so you can move money 
around. And this notion that you do not want to rob Peter to 
pay Paul--you could have easily done that. You could have found 
$600 to keep these level 1 violators from being released and do 
not act like you could not have.
    With that, Mr. Chairman, I would ask unanimous consent to 
move in a document titled ``Addressing CR Issue through March 
31st and Sequestration'' from U.S. Immigration and Customs 
Enforcement.
    Mr. Goodlatte. Thank you.
    Without objection, so ordered.
    [The information referred to follows:]


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                               __________

    Mr. Goodlatte. The Chair now recognizes the gentleman from 
Virginia, Mr. Scott, for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Director Morton, there is a belief around here that budget 
cuts have nothing to do with your ability to perform your 
responsibilities. In fact, tax cuts have nothing to do with the 
budget. And so you have to just work with us on this.
    Is there an appropriate ratio for safety between staff and 
detainees?
    Mr. Morton. Yes.
    Mr. Scott. And if there is a budget cut, how does that 
affect that ratio?
    Mr. Morton. Well, obviously, we have to maintain the 
facilities with the appropriation that we have. Were we to 
furlough individuals, that would affect our ability to 
apprehend and detain and remove people safely. I have indicated 
that my intention is to not furlough any of our officers.
    Mr. Scott. Well, if you have less budget, you will have 
less people, and therefore, you can retain fewer people. Is 
this arithmetic?
    Mr. Morton. It is. The basic arithmetic is the single 
largest appropriation that Congress gives us is for custody 
operations, and the sequester directs us to take a 5 percent 
cut to that custody operations. That is roughly $110 million. 
And I cannot find that level of resource----
    Mr. Scott. Well, I think what some are trying to tell you 
is that you can maintain a ratio with less money. But if you 
have less money, you have less people, and therefore you can 
detain fewer detainees. And we are talking arithmetic. It is 
not philosophy.
    A lot of the focus on the people released has been on their 
prior offenses. Can you explain to me what the recidivism 
rate--what the crime rate for those who have been released has 
been?
    Mr. Morton. So far, I am not aware of any recidivism. 
Obviously, we are reviewing all of these cases. We maintain----
    Mr. Scott. Excuse me. Of all the people you have released, 
how many crimes have been committed?
    Mr. Morton. None that I am aware of so far. Obviously, it 
is a short period of time. We constantly review that.
    Mr. Scott. Well, criminal courts let people out on bail, 
and obviously some commit crimes. But you are unaware of any 
that have committed crimes?
    Mr. Morton. Out of these 2,228, no. Listen, Mr. Scott, 
obviously we release people every day on some form of 
supervision. The statute provides that. Can I promise that 
every single one of those people is going to behave all year 
long? I cannot. We make the best judgments that we can.
    Mr. Scott. You cannot do it any more than a criminal court 
can promise that people let out on bail----
    Mr. Morton. Of course, not. I was a Federal prosecutor for 
many years before I came to the immigration enforcement 
business, and the exact same decisions are made. In fact, the 
immigration law is a little stronger. We have mandates in 
immigration law where in the criminal justice system there are 
only presumptions for certain detention cases.
    Mr. Scott. A suggestion has been made that your travel and 
entertainment budget would be sufficient to offset some of 
this. How much is your budget for travel and entertainment?
    Mr. Morton. It is a tiny fraction of what would be 
necessary to cover this.
    Mr. Scott. So you could not cover these expenses by 
reducing travel and entertainment?
    Mr. Morton. No. And we are doing that as part of the 
sequester. We have gone to mission critical only. No 
conferences. Our training is mission critical. The entire 
budget of the Agency, outside of domestic investigations and 
ERO, is $633 million, out of $5.8 billion. The math simply will 
not work with that remainder.
    Mr. Scott. And you have talked about a 68-year-old. Is the 
cost of detaining a 68-year-old, including health care, more or 
less than the average $122 a day?
    Mr. Morton. Well, I would say I do not know this particular 
68-year-old, but generally speaking, obviously we have some 
additional health considerations with people who are older.
    Mr. Scott. Thank you, Mr. Chairman. I yield back.
    Mr. Goodlatte. I thank the gentleman.
    The gentleman from Alabama, Mr. Bachus, is recognized for 5 
minutes.
    Mr. Bachus. Thank you.
    Director Morton, one thing that disturbs me is this thing 
that I was supplied by ICE. It says, detention release is 
solely for budget reasons. Why would it not say detention 
reasons based solely on national immigration detention policy?
    Mr. Morton. We are trying to be clear and accurate with 
everybody as to the releases that were for budget reasons only. 
We are releasing people all of the time, and I do not want 
people to think that we are mixing in people one way or the 
other. Again, the system calls for release every day.
    Mr. Bachus. Okay. My point is this says that these 2,600 
individuals were released solely for budget reasons.
    Why would you have not looked at 26,000 individuals in 
detention and found--it could have been 10,000 that you could 
have released? I mean, you should never release someone for 
budget reasons, solely for budget reasons. Would you not agree 
with that?
    Mr. Morton. No. We have to manage our budget every year.
    Mr. Bachus. Something more important than budgets is the 
immigration detention policy. I mean, that is what you are here 
to enforce, not to incarcerate people. You are here to try to 
determine how many people should be detained.
    Mr. Morton. No. My principal job is, on the immigration 
side--and people forget that there is a lot about ICE that is 
not about immigration enforcement. But focusing on the 
immigration enforcement, my job is to do the best I can to 
remove people who are here unlawfully from the United States, 
not to detain them, to remove them.
    Mr. Bachus. Right, okay. I think the immigration policy of 
the United States is to--as far as detention goes, is to detain 
people where there is not a reasonable alternative. Would you 
agree with that?
    Mr. Morton. Generally, that is the way the statute is set 
up.
    Mr. Bachus. Or you mentioned mandatory detentions also. But 
out of that 26,000--what I am saying you said these detention 
releases were made for budget reasons, and there is really no 
threat to public safety as a result of those.
    Mr. Morton. I said that----
    Mr. Bachus. Or very little.
    Mr. Morton [continuing]. We focused the releases on those 
people that we felt posed the least--the threat to public 
safety was not a significant risk.
    Mr. Bachus. But why?
    Mr. Morton. But what you are getting at is--if your 
question is do I have enough people, do I have enough resources 
to detain and remove 11 million people, the answer is no.
    Mr. Bachus. No, no. My question is perhaps are you 
overusing detention.
    Mr. Morton. At the beginning of the year, we were 
maintaining a higher level of detention than we were 
appropriated for over an annual----
    Mr. Bachus. No, no. Let's not talk about dollars and cents. 
Let's talk about individuals who are being detained. Surely 
instead of doing a cost analysis, why do you not do a risk 
assessment on that population, those being detained? How many 
of them could be released to family members? How many of them 
periodically would check in, even some maybe GPS? Although I 
would think that there are ties with the United States. You 
know, we have got some that have been adopted as children. I do 
not think they are going to run away. Are some of those 
mandatory detentions that you could recommend to Congress they 
not be?
    I am just saying it looks to me like maybe there is an 
overuse of detention by this Administration. Now, I know that 
totally--would you agree? Okay. If these people are not public 
safety risks, if they are not violent, if they do not have a 
criminal history, if they are not repeat offenders, if they are 
going to show up for proceedings, why are they detained at all? 
I mean, surely out of this 26,000, you could have found 3,000 
or 4,000 that--are there not 3,000 or 4,000 that would not----
    Mr. Morton. I think your basic sentiment, which is 
detention should be made based on risk of flight and----
    Mr. Bachus. Well, public policy, and that ought to be risk 
of flight, you know, violent offenders. I consider DUI's--I 
would say DUI.
    But what I am saying--this almost to me is that you are 
saying we have got too many people in detention.
    Mr. Goodlatte. Would the gentleman yield?
    Mr. Bachus. Yes.
    Mr. Goodlatte. In the report prepared by the Committee 
staff, there is a statistic in there that shows that 770,000 
people who were released did not return for their deportation--
--
    Mr. Bachus. I understand that, but I would say this. You 
could look at most of those people and there are predictors of 
whether you----
    Mr. Goodlatte. We are trying to deport them. If you release 
them and they never show up for their deportation proceeding, 
they are probably not getting deported.
    Mr. Bachus. Well, what I am saying--and I am not arguing, 
but if I accept--and I think most of these people are probably 
not going to go back. If they do go back, they are coming back 
legal or illegal.
    What the Chairman is saying is that 40 percent of those 
people that are not detained in the first place do not reappear 
for their removal hearing. And you know, include someone that 
does not show up--you know, maybe detain them. But if they were 
never released or if they were released and showed back up and 
they are not a flight risk and they are not a threat to public 
safety--and I will go to budget now--why are we spending $164 a 
day on it? I am just saying----
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Bachus. This maybe is not the message here, but maybe 
there is an overuse of detention.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Goodlatte. The time of the gentleman has expired.
    The Chair recognizes the gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Let me thank you very much to the Chairman 
and Ranking Member for this informational hearing.
    Director Morton, I have always thought of your basic 
commitment to the security of this Nation and might I say that 
I appreciate the work that your office does, the work that you 
all do in Washington, D.C. And I know that if I might use a 
certain American phraseology, you are caught between a rock and 
a hard place.
    So I would like to pointedly just restate what I thought 
you said and that is you are responding to the sequester, which 
is an across-the-board 5 percent cut, which resulted in $110 
million that you had to address, and that most of your 
appropriations comes into the custodial appropriations.
    So I am going to answer my own question. Then I am going to 
pose it to you. Obviously, we need a policy change that 
balances the responsibilities of ICE between custodial and 
other work, which then generates the employment or the FTE's 
that you may need to do other things, human trafficking, issues 
that I am very interested in.
    But I also appreciate the fact that in the recent order of, 
I guess a year, the executive emphasized to your office to 
prioritize individuals who could be, in essence, at a lower 
priority for detainment.
    So when we mention this issue of detaining persons, I think 
it is important to note that you are following a policy 
supported somewhat by law that either Congress has set over the 
years through immigration policy. I think that should be clear.
    So let me ask some specific questions. One, there are about 
771 that you released in the State of Texas, 240 in Houston. 
Can you give me a sense of what the offenses of those 
individuals were? It is my first question. I will let you 
answer that, along with any comment on the policy. And I am 
going to interrupt you because I have some other questions if 
you do not mind. Thank you.
    Mr. Morton. On Houston, there were 134 non-criminals and 
then there were no level 1 offenders whatsoever in Houston or 
the State of Texas. That is true for almost every State 
represented here today. In fact, that is true for most level 2s 
as well. In Houston, we had 59 level 3 and 47 level 2.
    With regard to your comment on the policy and the statute, 
you are right. At any given moment, about a half to two-thirds 
of the people that we detain are mandatory detention. Congress 
has just told us people in these categories must be detained. 
And the rest are discretionary. And that has largely built up 
over time to be a policy focused on criminal offenders, recent 
border entrants, or people who have seriously gamed the system.
    Again, you have to look at people's individual 
circumstances. It is why immigration enforcement is so 
challenging. It is very easy to make simple statements about 
non-criminals, simple statements about criminals. But then you 
realize sometimes a criminal can mean somebody who is 28 years 
old and they have committed a terrible sexual assault, and 
sometimes it can mean somebody who is 68 years old, has been 
here for 44 years, is a lawful permanent resident, people who 
have children. And that is why it is challenging, and our 
officers have to make those decisions every day, the best they 
can on the facts they have, and you cannot make sweeping 
generalizations or determinations either by statute or by 
policy.
    Ms. Jackson Lee. Well, the question has become bipartisan, 
Director Morton, on this issue of whether we are detaining too 
much. I appreciate both the Chairman and the Ranking Member, I 
am going to offer that we do a bipartisan bill that further 
assists you in codifying what was done by an executive order 
because my next line of questioning is, as someone who deals 
with these issues, I am concerned about detaining people that, 
frankly, obviously are being hurt.
    For example, a young man by the name of Marco--and I would 
like to get a response--was someone who was held for 4 months. 
He was innocent. Nothing more than he was someone who came here 
and not being documented, had not done any offense. He was 
here, left behind. His father was deported. He was the only 
support for his family. He is being held. We spent 4 months 
holding him. No offense, nothing.
    Another woman was a victim of domestic violence, and she 
had been denied asylum and refugee status. We held her while 
she was trying to get bond counsel.
    My question to you is--as you well know, the American Civil 
Liberties Union are in our offices about these individuals. 
They are probably level 0 to a certain extent in terms of not 
being offensive.
    Can you just tell me how you can work better on these kinds 
of cases and work better with the ICE regional offices which, 
with all of their great service, sometimes detains, detains, 
detains?
    Mr. Morton. I am happy to look into the two particular 
cases, and I will ask the staff to do that.
    The broader challenge is using the resources that Congress 
gives us for detention as wisely as we can. And a big part of 
the answer, frankly, I think is comprehensive immigration 
reform. You are right. The Agency is between a rock and a hard 
place a lot of times. We are charged with removing 11 million 
people from the United States and that number is obviously 
beyond our capability and appropriations to carry out, and for 
many of the very long-term residents, frankly it does not make 
any sense either as a matter of policy.
    So what do we do? We take the appropriations that we get, 
which is enough for about 400,000 removals a year, and we try 
to focus those removals as best we can on priorities that make 
sense for the country.
    Mr. Goodlatte. The time of the gentlewoman has expired.
    Ms. Jackson Lee. Thank you.
    Mr. Goodlatte. We have a vote pending, but we are going to 
try to get one more question in, and so the Chair recognizes 
the gentleman from Virginia, Mr. Forbes, for 5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Morton, you have testified that the decision to release 
this 2,228 individuals was yours and yours alone, that you had 
no suggestion, conversation, memo, order, or communication of 
any kind from anyone outside the Agency. Is that your testimony 
here today?
    Mr. Morton. That is right.
    Mr. Forbes. Once you have made a decision of that 
magnitude, did you communicate that to the Secretary, anyone on 
behalf of the Secretary, to OMB, anyone working for OMB, or 
anyone at the White House or working for the White House after 
that?
    Mr. Morton. No. The----
    Mr. Forbes. Just yes or no, Mr. Morton. I do not have much 
time.
    Mr. Morton. The answer to that is no. And I have said I 
regret both with regard to----
    Mr. Forbes. That is alright. I just need the facts on that.
    The other thing that Mr. Gowdy pointed out, the reason this 
is so suspicious is not just the act, but the timing of the 
act. We know that OMB had issued gag orders on many agencies 
not to talk about sequestration. We know the Department of 
Defense had that. And you issued this decision in February when 
the campaign to talk about sequestration was undertaken by the 
President.
    But I want to take you back to December and November of 
2012. You bragged about the fact you have been there for 4 
years. As you know, sequestration was passed in August of 2011. 
You had a year or so to look at that. Every mathematical fact 
and statistic that you have would have been exactly the same in 
November and December. In fact, no one in this room knew that 
sequestration was going to be postponed from January 1 to March 
1 until January 1.
    Why did you not make this decision in November or December 
of last year?
    Mr. Morton. First of all, the principal decisions were made 
by the career officials. It was not my personal decision.
    Mr. Forbes. Why did they not make them in November or 
December of last year?
    Mr. Morton. I supported and approved this decision, but the 
decision itself was made by the people who run----
    Mr. Forbes. But why did they not do it last year? All the 
same statistics, all the same monetary budgetary issues, 
everything was present last year that was present in February 
of this year, and yet you waited to February to make that 
decision.
    Mr. Morton. Where are we? We are at an average of 34,000 
beds.
    Mr. Forbes. You were at the same averages last year.
    Mr. Morton. That is right, but it goes up and down all of 
the time.
    Mr. Forbes. No, no. But that projection was the same last 
year. You are not in a cyclical point in December where you 
could not project this was going to be the same kind of 
forecast, could you?
    Mr. Morton. Last year, we had a full-year appropriation----
    Mr. Forbes. I am talking about December of last year, Mr. 
Morton. You had the same exact appropriations that you are 
looking at now.
    Mr. Morton. December of the fiscal year prior to this one.
    Mr. Forbes. Of 2012. Let me move on because the bottom line 
is you do not have an answer for that.
    Let me ask you this question and see if you have an answer 
for this one. On the individuals, this 2,228 people you 
released, were any of them members of a violent criminal gang?
    Mr. Morton. I think there are two cases, at least one that 
I know of, that when we went back and looked at the 
information, there was a gang affiliation. That person is----
    Mr. Forbes. Do you ask the individuals that you are 
detaining whether they are members of a violent criminal gang 
or not?
    Mr. Morton. We try wherever we can to----
    Mr. Forbes. No, no. That is not my question. I mean, is 
that part of your questioning? Do you have that information on 
the people that you released?
    Mr. Morton. I do not know if we ask each and every person 
we detain.
    Mr. Forbes. So then you cannot really answer for the 2,228. 
All you can say is that you know that two of these individuals 
had a gang affiliation, but you do not know whether any of the 
other 2,228 had a gang affiliation or not?
    Mr. Morton. I cannot speak to every person we detain. No, I 
cannot.
    Mr. Forbes. So then it is possible that we released someone 
who was here illegally who had been charged or convicted with a 
crime and could have voluntarily been part of a violent 
criminal gang. You would not know that.
    Mr. Morton. On the convictions, yes, we would.
    Mr. Forbes. I said charged or convicted.
    Mr. Morton. Yes. So I am saying on convictions, we would. 
On just general gang affiliation, I cannot say that we would 
know----
    Mr. Forbes. Let me ask you this question. On the aggravated 
felonies that you talked about, I am looking at the list here, 
and I am just running through a couple of them. But no one on 
that list was charged or convicted with murder, rape, or sexual 
abuse of a minor, were they?
    Mr. Morton. They were not.
    Mr. Forbes. Was anyone charged or convicted of illicit 
trafficking in a controlled substance?
    Mr. Morton. There were some with drug offenses. The 
individual I mentioned earlier who is 68 and a lawful permanent 
resident.
    Mr. Forbes. Were any of them involved in child pornography?
    Mr. Morton. Not of the ones that I am aware of that were 
released, no.
    Mr. Forbes. So of the 2,228, you can testify that none of 
them were involved in child pornography?
    Mr. Morton. To the best of knowledge, I can testify the 
answer is no.
    Mr. Forbes. Well, to the best of your knowledge just means 
that you do not have any knowledge of it now. Have you reviewed 
that or can you testify that none of them were?
    Mr. Morton. I can tell you that I have reviewed the 
summaries of all 2,228. I have not looked at the actual 
conviction records personally on such a number. I have not 
looked at every----
    Mr. Forbes. Can you answer me this question? Because my 
time is about out. What time frame are these individuals to 
report back where somebody can actually lay eyes on them and 
say that we know that they are complying? Give us those time 
frequencies and what percentage of them have started reporting 
back.
    Mr. Morton. It depends on what sort of release you are put 
on. If you are on ATD, it can be as often as every week, and 
plus you have your bracelet. So it is constant monitoring. If 
you are on an order of supervision, it can depend. It can be 
monthly. It can be weekly. It can be quarterly. The same is 
true of an order of recognizance. Obviously, with a bond, you 
are dealing with a financial obligation that you must address. 
There is some combination of the two, too. We have the power 
to----
    Mr. Forbes. So some of them you have as far as----
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Forbes. I will yield back.
    Mr. Goodlatte. I thank the gentleman.
    Director Morton, we will have to stand in recess for a 
vote. So the Committee will reconvene as soon as the votes 
conclude.
    [Recess.]
    Mr. Goodlatte. The Committee will reconvene.
    And the Chair recognizes the gentleman from Georgia, Mr. 
Johnson, for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Morton, in your department's 2012 and 2013 budget 
requests, did you oppose the inclusion of statutory language 
mandating ICE to maintain a level of at least 34,000 detention 
beds per day or per night?
    Mr. Morton. The President's budget did call for a lower 
number, 32,800, and called for a level of flexibility that was 
ultimately not adopted by the Appropriations Committee.
    Mr. Johnson. Now, is the 34,000 detention beds that were 
passed or were mandated by this Congress--are those mostly in 
the private, nonprofit prison system?
    Mr. Morton. It is a mix of----
    Mr. Johnson. It is not private, nonprofit, but private, 
for-profit prison system.
    Mr. Morton. Yes, sir. It is a mix. We run a very small 
number of facilities ourselves.
    Mr. Johnson. How many beds?
    Mr. Morton. I would say maybe in our facilities a maximum 
of a couple of thousand.
    Mr. Johnson. So you have got 32,000-plus that are housed in 
private, for-profit, corporate-run prison facilities. Is that 
correct?
    Mr. Morton. Not entirely. We also contract with State and 
local governments.
    Mr. Johnson. If those beds are unfilled, is there still a 
requirement that the Federal Government pay the private 
contractor?
    Mr. Morton. Yes. Many of our contracts require a minimum 
floor, and then depending on the particular contract, obviously 
if we use more of the minimum floor, we pay for that as well. 
We do our very best not to have empty beds.
    Mr. Johnson. It is kind of like you want to fill the beds 
up so that you will not be paying for something that you are 
not using. Is that not correct?
    Mr. Morton. That is correct. Obviously, if Congress 
appropriates us money, we need to make sure that we are 
spending it on what it was appropriated for.
    Mr. Johnson. And so we got a guaranteed payment to private, 
nonprofit corporations like Correction Industries of America, 
among others. Excuse me. Yes, Corrections Corporation of 
America, which is the largest private prison company in the 
country.
    Now, you do, in law, have the flexibility to provide 
alternatives to detention to certain classes of detainees. Is 
that not correct?
    Mr. Morton. Yes, sir.
    Mr. Johnson. You have the right to release them on bond.
    Mr. Morton. Yes, sir.
    Mr. Johnson. And that is in fact what you did with the 
2,228 persons that were released, which is the subject of this 
hearing. Correct?
    Mr. Morton. That is right, and we do that every day with 
other people as well.
    Mr. Johnson. Now, how much does a detention bed cost per 
day?
    Mr. Morton. It depends on where you are in the country, but 
on average, we calculate it is $122 a day.
    Mr. Johnson. I have heard reports of up to $166 a day for 
housing, health care costs, and guard costs.
    Mr. Morton. That is correct, particularly if we are, for 
example, in the Northeast. If you are detaining people in New 
York City, it obviously costs a lot more than it costs to 
detain somebody elsewhere.
    Mr. Johnson. Well, using the average $166 a day times 
34,000 detainees, we are guaranteeing to the private prison 
industry about $5.6 million per day--$5.6 million per day. Are 
you familiar with that?
    Mr. Morton. Well, again, I would note that there are other 
partners that we work with. We have State and local governments 
that provide us and then we do have some of our own contracted 
detention facilities. But do we have a dedicated appropriation 
for those beds? Yes.
    Mr. Johnson. It is about $5 million a day.
    Are you familiar with the ALEC group, the American 
Legislative Exchange Council, which proposes State laws that 
enable States to fill the prison beds that we are discussing 
today?
    Mr. Morton. I am not, sir.
    Mr. Johnson. You are not? But you would not be surprised if 
Corrections Corporation of America was a member of ALEC, along 
with thousands--70 percent of the legislators in the country. 
Would you be surprised to learn that?
    Mr. Morton. I am just not aware of that particular group. I 
am aware of----
    Mr. Johnson. So you are unaware of a mandate from 
corporations to the Federal Government to supply them with a 
fixed number of beds--i.e., profit--per day. And we do not even 
monitor these private corporations in terms of the health, 
safety, and well-being of the detainees.
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    The Chair recognizes the gentleman from Iowa, Mr. King, for 
5 minutes.
    Mr. King. Thank you, Mr. Chairman, and thanks, Director, 
for your testimony here.
    I am looking at some numbers that I heard earlier in the 
testimony, 2,228 detainees released, and of those, 1,599 non-
criminals. Can you tell me if any of the non-criminals had 
orders of removal?
    Mr. Morton. I do not believe so, but we can check. But my 
initial assessment would be they do not.
    Mr. King. And of the 629 criminals, how many of those had 
orders of removal?
    Mr. Morton. I do not believe any of them had final orders 
of removal, although there was one case that involved somebody 
who had very severe mental issues, and that one person may have 
had an order and is the subject of some litigation that we are 
involved in.
    Mr. King. Could you tell me how many of the 1,599 non-
criminals and the 629 criminals fit under the category of 
mandatory detention?
    Mr. Morton. None of the individuals that the field was 
directed to release could be mandatory detention. As I noted 
earlier, in further review, we have determined that there were 
some cases released that should have been mandatory detention 
when we looked at the record, and we pulled those in. But as a 
general rule, obviously a mandatory detention case must be 
detained.
    Mr. King. That is roughly 8 or 10? That is the kind of 
number we are talking about that may have been mandatory 
detention that were released?
    Mr. Morton. There will be four out of the level 1 offenders 
that we brought back in, and there will be--out of the level 
2s, I think there will be less than a few dozen brought back in 
for a variety of reasons.
    Mr. King. But you would not have granted a release of 
anyone knowingly in the list of those who were mandatory 
detainees?
    Mr. Morton. No. That would be unlawful.
    Mr. King. So, therefore, that list that I heard from Mr. 
Forbes, murder, rape, sexual abuse, drug trafficking--you said 
a yes to drug trafficking. Would that not fit under the 
category of mandatory detainees?
    Mr. Morton. So there is some drug offenses--so, for 
example, possession--that are not mandatory detention in every 
case. Drug trafficking, depending on the State law----
    Mr. King. There were no drug traffickers released?
    Mr. Morton. Not that I am aware of.
    Mr. King. Okay, and no firearms traffickers either that you 
know of or----
    Mr. Morton. No firearms traffickers.
    Mr. King. Or money launderers?
    Mr. Morton. No money launderers.
    One point to be clear on. Separate from these budgetary 
releases, there are times when we must release someone with a 
serious criminal record based on a Supreme Court case that says 
that if the Government is unable to remove people, we may not 
detain them indefinitely.
    Mr. King. Not making that the issue, though, it is your 
position--and I hear it here clearly--that you would not 
knowingly release anyone who is a mandatory detainee other than 
giving deference to the Supreme Court case.
    Mr. Morton. Yes.
    Mr. King. And with the request of the letter that was 
issued by Chairman Goodlatte and Senator Grassley for the list 
and the details of those who fit within those categories I have 
mentioned of the 2,228, you will provide that at their request?
    Mr. Morton. We have already provided a summary to the 
Committee, and we are happy to continue to work on further 
details. Just to give some flavor to it, Mr. King, occasionally 
we will deal with someone who has terminal cancer or, you know, 
there is an extraordinary circumstance. But generally, when the 
Congress says that something is mandatory, we view it as 
mandatory.
    Mr. King. Well, I appreciate that.
    And when you looked at your options of releasing these 
2,228 into the streets of which 629 are criminals, what was the 
rationale? If you needed to free up your budget, why did you 
not just go ahead, those who were adjudicated with deportation, 
remove them, or accelerate that process so you could remove 
them and relieve your budget in that fashion, release people 
into the streets of their home country rather than into the 
streets of our home country?
    Mr. Morton. We are doing everything we can to remove 
people. So I do not believe there were any removal cases that 
were ready to go that we delayed on.
    Mr. King. But why did you not accelerate that as another 
option rather than releasing people into the streets?
    Mr. Morton. We go as fast as we can. I am not aware of any 
power that we had to accelerate----
    Mr. King. Did you consider that as something you might want 
to develop, an ability to accelerate the removal so that you 
could free up your budget and not release people into the 
streets?
    Mr. Morton. Well, I am a supporter of trying to make sure 
that immigration proceedings proceed in a timely fashion. We 
have number of proceedings that take too long, and if we were 
to be able to shorten them, I think we could----
    Mr. King. Let me just ask you. If an ICE agent encounters 
an individual that is unlawfully in the United States, let's 
say, within a jail and that individual is guilty of less than 
three misdemeanors, can they arrest that person and place him 
in a deportation? How would your management deal with an ICE 
agent like that?
    Mr. Morton. So if the person has less than three 
misdemeanors, with some exception for drug offenses, most 
misdemeanors are not an independent ground for removal. Now, if 
they are here unlawfully, however, that is a ground of removal, 
and we obviously take into account----
    Mr. King. Do you encourage your agents to do that?
    Mr. Morton [continuing]. Misdemeanor offenses.
    Mr. King. Do you encourage your agents?
    Mr. Goodlatte. The time of the gentleman has expired. I 
will allow the gentleman to answer the question and then we 
will move on.
    Mr. Morton. We focus on criminal offenders. It depends on 
what the underlying record is. I mean, in your scenario where 
someone has three misdemeanor convictions, generally the 
presumption would be we take a serious look at that person for 
removal
    Mr. King. Thank you, Director.
    Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    It is my understanding the gentlewoman from California has 
a unanimous consent request.
    Ms. Lofgren. Yes, Mr. Chairman. I would like unanimous 
consent to place into the record statements from nine groups, 
including the Lutheran Immigration and Refugee Service.
    Mr. Goodlatte. Without objection, those statements will be 
made a part of the record.
    [The information referred to follows:]


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                               __________
    Mr. Goodlatte. And the Chair is now pleased to recognize 
the gentleman from Illinois, Mr. Gutierrez, for 5 minutes.
    Mr. Gutierrez. Thank you, Mr. Chairman.
    Good to have you, Director Morton.
    I just want to follow up on these deportations. So how many 
people were deported in the last calendar year?
    Mr. Morton. About 409,000 people.
    Mr. Gutierrez. Can you tell us about the last 4 years, 
deportations during the last 4 years, just general numbers?
    Mr. Morton. General numbers, just a little bit shy of 
400,000 on average every year.
    Mr. Gutierrez. On average each year.
    And how is that in relationship to the previous 4 years in 
terms of actual number of deportations?
    Mr. Morton. Significantly increased.
    Mr. Gutierrez. Significantly increased. So since you got 
the job 4 years ago, deportations have significantly increased, 
and we can demonstrate that through actual numbers.
    Mr. Morton. Yes, particularly for criminal offenders where 
we have focused most of our effort.
    Mr. Gutierrez. And what is the reason you believe that you 
have been able, in spite of the cost for many of us, to be able 
to achieve that significant increase in deportations?
    Mr. Morton. The Congress of the United States provides us 
resources to enforce the law. My job as the head of the Agency 
is to see that those resources are well spent, and Congress has 
provided us resources that----
    Mr. Gutierrez. Let me ask you something, Mr. Morton.
    Mr. Morton [continuing]. We can remove about 400,000 people 
a year.
    Mr. Gutierrez. Sorry to interrupt you.
    So when you started at this job, how many local police 
departments, governmental agencies had a relationship under 
Secure Communities and the Federal Government?
    Mr. Morton. When I first started, very few.
    Mr. Gutierrez. How many today?
    Mr. Morton. Today Secure Communities is in every 
jurisdiction of the United States.
    Mr. Gutierrez. In every jurisdiction of the United States.
    So during the last 4 years, you have expanded heretofore an 
almost unknown program, which really is to gather, would you 
not agree, many of the people that you subsequently put in 
deportation proceedings?
    Mr. Morton. The Secure Communities program? Yes. And the 
criminal justice system now allows us a window to that system 
in a way that was never possible before.
    Mr. Gutierrez. So we give you money. So you have to have 
34,000. Do you feel you have to have 34,000 people in custody 
every night in a bed? Do you feel you have to have that number?
    Mr. Morton. We have to maintain, on average, 34,000 beds 
from a budget perspective, and obviously we are not going to 
have empty beds. Some beds we actually put more than one 
person----
    Mr. Gutierrez. But you relayed to us that 40 to 45 percent 
of everybody currently in some kind of proceeding is not, in 
the definition of the Federal Government, a criminal. Is that 
correct? You gave us a number--and I have tried to calculate--
that about 40 to 45 percent--there were 350,000 people 
approximately where? Define where the 350,000 people are.
    Mr. Morton. In removal proceedings.
    Mr. Gutierrez. In removal proceedings.
    And you also suggested that about 40 percent of them had 
committed no criminal violation. Is that correct?
    Mr. Morton. That is right. I think the number is probably 
higher than that even.
    Mr. Gutierrez. Very good.
    But in spite of the fact that they have not committed any 
criminal violation, we still have astonishingly high, record-
breaking numbers of deportations.
    Mr. Morton. The Congress of the United States----
    Mr. Gutierrez. And Secure Communities has gone from a few 
parts of the United States to everywhere in the United States 
of America.
    Mr. Morton. That is right.
    Mr. Gutierrez. I think to me that demonstrates the need for 
comprehensive immigration reform. The separation of families 
and the destruction of families. The fact is you will deport 
1,400 people today. You will deport 1,400 people tomorrow and 
the next day and the next day and the next day until we do 
comprehensive immigration reform. 250 to 300 American citizen 
children are going to be left today because of your actions and 
those of your department without a mom or a dad. The fact is 
there are thousands of children in foster care and in 
proceedings of termination of their parental rights. There are 
4 million American citizen children who--I have to tell you, 
Mr. Morton--many times you do not take into consideration as 
you deport their parents from the United States.
    As a matter of fact, everybody likes to talk about the 
President's order on deferred action, something that I praise 
and was happy to hear about. But the fact is, is it not true, 
that you will still deport the parents of those that have 
gained deferred action?
    Mr. Morton. Deferred action covers the children.
    Mr. Gutierrez. But not their parents.
    Mr. Morton. It does not cover their parent.
    Mr. Gutierrez. So we have an executive order that covers 
the children, but does not cover the parent. Again, we cover 
the children but not the parents and the corrosive effect that 
this has.
    I will just end with this because the Chairman is so good, 
and I am going to try to stay right on the number. And that is 
just to say, look, you should have released those 70 percent of 
those people a long time ago, according to your own statements 
that you issued in the summer of 2011 on prosecutorial 
discretion. I hope you will use more prosecutorial discretion 
not less prosecutorial discretion so as this Congress finally 
gets to the work of comprehensive immigration reform we will 
have fewer families that we need to heal.
    Thank you so much, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    The Chair recognizes the gentleman from Texas, Mr. Gohmert, 
for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I am grateful to the witness for being here even though 
I am looking at you through the reporter there. Thank you.
    I just got a message from my friend, the Governor of Texas, 
Rick Perry, indicating that they sort of feel like it would be 
a good idea that if you are going to release previously 
convicted criminals, people who are at a high risk for repeat 
offenses, and that would include multiple DWI's, that they 
would really like to know that you are about to release those 
people in their State so they can give their law enforcement a 
heads up.
    Playing football back in high school as a quarterback, the 
linemen had sometimes what was known as a lookout block. If 
they screwed up so bad a guy got by them, they would at least 
have the decency to turn around and yell ``look out.'' That was 
a lookout block. They did not get their lookout. They did not 
get the block. They did not get the lookout in Texas.
    Are there some requirements that you notify the State and 
local authorities or State or local authorities when you allow 
criminals and suspected criminals to go free from detention?
    Mr. Morton. There are no blanket notification requirements.
    Mr. Gohmert. So unless we put it in the law, you do not 
even give a lookout, here come these folks.
    Mr. Morton. Generally speaking, the notification that we 
will give is, where we can, through the victim notification 
system. Remember, we are not part of the----
    Mr. Gohmert. The victim notification, but not necessarily 
to the local law enforcement or the Governor's office.
    Mr. Morton. That is correct.
    Mr. Gohmert. Because I can assure you if you notify the 
Governor's office, they are going to let the local law 
enforcement know. That would be a good place to start, but it 
sounds like we are going to need to put that in the law.
    Well, I tell you I was staggered to hear my friend, Zoe 
Lofgren, from California talk about the greatest number of 
convictions, of Federal convictions, that this Administration 
has are for Federal, which is a felony, reentry after 
deportation. I was staggered to hear that. And, Mr. Morton, if 
there is anything that comes out of this hearing that shocks 
the conscience, it is that the number one biggest problem in 
this Administration of a Federal felony nature is the reentry 
by deported illegal immigrants after they have been deported.
    Now, as a district judge in Texas, it was an ongoing 
problem. I had one guy with nine DWI's, never would be 
deported, was constantly reported to the Federal authorities. 
This is when Bill Clinton was President. And finally he hit 
somebody again and he came before my court because that bumped 
it up to being a felony. So I understand it.
    And as I have asked before, when people testify, yes, we 
took him to the border and released him, I often want to know 
did you stick around long enough to watch them come across the 
border, or did you immediately drive away after you had dropped 
him off. This is a huge problem.
    And I am just curious. With each one of these Federal 
felony convictions, it means we are paying for a prosecutor. We 
are paying for law enforcement to get these people and then a 
prosecutor. We are paying for a defense attorney for them. We 
are paying for the offices for the prosecutor, the offices for 
the law enforcement, the offices for the judges, the offices 
for the appellate courts. And the number one conviction is for 
Federal felony reentry after they have been deported.
    When I start thinking about that fact, it becomes pretty 
clear the best thing this Administration could do for this 
country is secure the border so they do not have to keep re-
catching the people that have already been deported. To heck 
with how much a wall costs or drone coverage, whatever it 
takes, your Administration--and this message should go up to 
the President. This Administration should do everything they 
can to secure the border so that the number one source of 
convictions is no longer felony reentry after you have deported 
people.
    And then you think about the money that would be saved by 
those who do not have their house burglarized by criminals that 
have been deported and have come back in, people who have not 
been raped or cars that are not damaged in traffic accidents by 
criminals that have been deported. But we do not secure our 
borders so they come right back in.
    So if any message comes out of this, I would implore you, 
please send a message to this Administration. You want to save 
money, Mr. President? You want to save money, Secretary 
Napolitano? Secure the border and we will have all the savings 
they will ever need. And I appreciate your doing that, if you 
will. Would you pass a message on such as that?
    Mr. Morton. I would be happy to note your statements here 
today.
    Mr. Goodlatte. The Chair thanks the gentleman from Texas 
and recognizes the gentlewoman from California, Ms. Bass, for 5 
minutes.
    Ms. Bass. Thank you very much, Mr. Chair.
    I wanted to follow actually my colleague, Mr. Guiterrez, 
some of the questions and comments he was raising. I actually 
come from an area in Los Angeles that is very, very concerned 
about Secure Communities and the number of detentions that were 
non-criminal. So maybe you could respond a little bit to that 
in terms of why people were detained if there were not criminal 
charges.
    And in addition, I wanted to ask you about the children. He 
made reference to the children whose parents are deported and 
the ones that are put in the foster care system. Specifically, 
I wanted to know what happens to them, but I also wanted to 
know a name of a person in your office that I can have ongoing 
communication about the children who wind up in foster care.
    Mr. Morton. So we will follow up with you after the hearing 
for a name. We are actually working on a policy trying to 
address with Health and Human Services this sort of issue of 
what do you do with U.S. citizen children when you remove the 
parents and they have to go into--if they are left here, they 
go into the child welfare system.
    With regard to Secure Communities, we have implemented 
Secure Communities nationwide, in every jurisdiction. There are 
frequent criticisms and allegations that we are using it to 
identify a lot of non-criminal offenders. That I do not think 
is entirely fair. It is a very sensible program. We are trying 
to focus our resources on the criminal justice system.
    Occasionally someone will be charged with a criminal 
offense and they have also been deported from the country 
before or they also have an outstanding final order. 
Technically that person is a non-criminal offender because they 
have yet to be convicted. But I do not think it is reasonable 
to expect the Agency to ignore the fact that they are in the 
country here unlawfully, or they have an outstanding final 
order that they ignored. And in those circumstances, when we 
identify them through Secure Communities, we will place a 
detainer on those individuals and we will seek to remove them 
from the country.
    Ms. Bass. In Los Angeles, what was happening was raids, you 
know, raids of workplaces. And I do not know how a decision is 
made about that.
    Mr. Morton. Well, I am not aware of raids, as you would 
describe them, in the last 4 years. The Secretary instituted a 
new policy for worksite enforcement that has us focused first 
and foremost on criminal violations by the employers, 
heightened audits, and an effort to work with the business 
community to encourage voluntary use of E-verify, which we have 
done. Last year we had over 3,000 I-9 audits, which was the 
highest level in the Agency's history. And we have generally 
not pursued the very large-scale administrative raids you saw 
previously.
    Ms. Bass. You know, I want to give you an example. I was in 
Miami, Florida with the Foster Youth Caucus, and we were 
visiting a residential facility for foster youth. And I am from 
Los Angeles. And on that day, they were getting four kids from 
Los Angeles who were being sent to Miami to be in residential 
care. And I guess my concern is that for those parents that do 
wind up deported, their children could get lost in our system 
when they could have relatives who are here legally.
    Mr. Morton. We do everything we can to ensure that the 
children, if they are not going to go home with the parents, 
are in an appropriate custodial situation. This is a very 
challenging area. Most of the people that we are talking about, 
most of the parents, are criminal offenders. Some of the damage 
has been done long before ICE takes custody of them and the 
person has been incarcerated for quite some time and a 
challenging family relationship now exists. And obviously, 
simply having a child is not a basis for staying in the country 
lawfully.
    Ms. Bass. Oh, sure.
    Mr. Morton. You have committed an offense.
    Ms. Bass. Yes, and I am definitely referring to the ones 
that were not.
    But if I could follow up, if I could have my staff follow 
up with yours to get someone who is looking at that policy with 
DHS, I would definitely like to be included in that.
    Mr. Morton. Yes, ma'am. We will do so.
    Ms. Bass. Thank you.
    Mr. Goodlatte. I thank the gentlewoman.
    The Chair recognizes the gentleman from Pennsylvania, Mr. 
Marino, for 5 minutes.
    Mr. Marino. Thank you, Chairman.
    Director, welcome.
    Mr. Morton. Thank you.
    Mr. Marino. Director, you hit the news quite a bit over the 
last couple of weeks. And it has been reported that you stated 
that there would be 2,228 illegal immigrants from local jails 
that would be released for various reasons. I think you 
followed up saying there may be more released as well.
    My question to you is--you know, that was accurate, and I 
am sure you were responding to precise figures. But do you not 
think you should have followed up by explaining to the American 
people we do this on a regular basis and we do release 
individuals, thousands of them, over several months given the 
fact that the way it was presented, either you were directed to 
or you did a little grandstanding on let's make this sound as 
painful as ever per the sequestration? Now, why would you not 
follow up and explain to the American people we do this on a 
regular basis?
    Mr. Morton. As I have said before, I do regret the timing 
in notification. We should have, as an Agency, done a better 
job of communicating what we were doing and why we were doing 
it, both in terms of communications to our oversight committees 
and generally.
    Mr. Marino. And I do not hold you totally responsible for 
that. I know you said that you did not have any communications, 
but I reached down into my heart and then I find it hard to 
believe that some kind of a wink and a nod was not said across 
the board that let's make this sound as painful as possible, 
whether it is in your department, the Justice Department, or 
Homeland Security or somewhere else. I do have a problem with 
that.
    Also, I received a letter. I am from Pennsylvania, 
northeast Pennsylvania. I have 15 counties. One of my counties 
is Pike County, and they house illegal immigrants. They do a 
great job. They have been recognized for this. And as the 
letter states--it is dated March 1, 2013 from the commissioners 
of Pike County. And I am just going to very carefully read two 
sentences.
    As you may know, on behalf of the Department of Homeland 
Security, Immigration and Customs Enforcement, immigration 
detainees have been housed in Pike County correctional facility 
since 1996. And the fact that in stark contrast, these 
numbers--and they go through to tell the numbers of how many 
they house and how many they are housing. Detainees housed in 
Pike County has been steadily declining since before the 
beginning of this year.
    And you said as high as $164 per day to keep an illegal in 
prison in some situations. In Pike County, it costs $82.50 a 
day. They do a great job and they really have the cost down. 
Why not take advantage, more advantage of facilities like this 
and particularly in Pike County who built a whole new facility 
just to house these individuals?
    Recently the number of detainees has decreased, as I stated 
to you. But can you account for the decrease since before the 
beginning of the year of detainees?
    Mr. Morton. Why do we not follow up with you on Pike 
County?
    Mr. Marino. I would appreciate that.
    Mr. Morton. We run over 250 different facilities.
    Mr. Marino. And I know that. Listen, when someone is asking 
me do I know everything that is going on in Congress, I have to 
say, no, I do not know everything that is going on in Congress. 
And as one prosecutor to another, I know your responsibilities 
are great.
    Here is another question I have for you if I have time. 
Have you approached the United States attorneys in the 
respective districts and informed them that these people were 
going to be released, or were you told not to inform them? Did 
you have any communications with informing them or not 
informing them? Because I would find it hard to believe that 
you did not get some push back from U.S. attorneys on this.
    Mr. Morton. No, we have not notified the United States 
attorneys' offices of the releases, non-criminal or criminal. 
But remember, all of these people have been convicted and have 
served their time. We are talking about detention solely for 
removal purposes. We are not a penal institution.
    Mr. Marino. I understand that, but do you not think it 
would hurt morale? I was a former U.S. attorney. I know what my 
staff went through. I know how hard they worked. I know how 
they followed these cases through. And then just to simply 
release these individuals, it has got to be a morale-buster. I 
know I would have pushed back had I known about it, if I were 
the U.S. attorney. So you are saying there was no communication 
there?
    Mr. Morton. No. All I can say is I think from the U.S. 
attorneys' community perspective, we are prosecuting a record 
number of cases with them. We are removing a record number of--
--
    Mr. Marino. Okay, I understand that, sir. My time is 
limited.
    Have you ever received any notification from up the chain 
that we do not want you picking up any more illegals in this 
country?
    Mr. Morton. Let me be clear on this. These releases are 
solely a determination by the Agency----
    Mr. Marino. I understand that. I clearly understand that. 
But the question was have you received any direction from up 
the chain not to detain any more illegal aliens in this 
country.
    Mr. Morton. No.
    Mr. Marino. I yield back. Thank you, sir.
    Mr. Goodlatte. I thank the gentleman.
    The Chair recognizes the gentleman from Louisiana, Mr. 
Richmond, for 5 minutes.
    Mr. Richmond. Thank you, Mr. Chairman, and thank you to the 
witness.
    As I sit here and ponder my questions and I look at the 
title, the ``Release of Criminal Detainees by U.S. Immigration 
and Customs Enforcement: Policy or Politics?'', it begs the 
question whether the hearing itself is policy or politics 
because I have yet to hear someone ask if we are so worried 
about the releases, how much do you need so you do not have to 
release people. And you made these releases based on sequester.
    If we were asking and we wanted to know what do you need as 
we do a CR and other things to keep Government going, what do 
you need so that you do not have to release anybody.
    Mr. Morton. I get asked this question all of the time, and 
it gets back to a recognition that the Agency is asked to do 
far more than Congress appropriates or could rationally 
appropriate to the Agency. We are in a situation where there 
are 11 million people, on average, who are here unlawfully, and 
the Agency has resources to remove about 400,000 a year, which 
is less than 4 percent. And it is why, at the end of the day, I 
think bipartisan efforts to come to some level of comprehensive 
immigration reform is the thoughtful way out. The Agency is 
never going to be able to detain and remove everybody as a 
matter of budget, nor does it make sense as a matter of policy.
    Mr. Richmond. And as the Agency head, how do you plan and 
budget for a Government that is operating 60 and 80 days at a 
time, almost like a drunk frat house planning the next party?
    Mr. Morton. It is very difficult. Listen, I am the head of 
the Agency. I accept all of the criticism of the Agency on its 
behalf. But I will say we could have done a better job of 
notifying the Committees and explaining what we were doing. 
Let's be frank, however, we are dealing with a situation in 
which we had a 6-month CR, a sequestration imposed on top of 
that, and as of right now, I do not know what my budget will be 
for the next 6 months of the year. And the career men and women 
are doing the best job they can to use the funds that we have 
been given wisely in an awfully unique budget environment.
    Mr. Richmond. And I am glad you brought up the fact that 
you are dealing with the CR's because it has been suggested 
that this is on you. But let's just take the time since I have 
been here the last 3 years. Was it your idea to pass a 14-day 
continuing resolution? Was it your idea to pass a 21-day 
continuing resolution or a 7-day or a 168-day or a 4-day, a 45-
day, a 28-day, a 1-day continuing resolution and a 6-day? How 
do you adequately plan and run the Government or a branch of 
Government with CR's that go for that short amount of time? How 
do you adequately budget for that?
    Mr. Morton. It is very difficult. We err on the side of 
being conservative, as we have here, to make sure we are not 
deficient at the end of any given continuing resolution. It is 
difficult. We are a very large operation. We are taking in over 
400,000 people a year, and it has to go on for the full year. 
And when you are in an environment where you do not know what 
your budget is going to be, when the various marks in the House 
or the Senate are different, when you are looking at 
sequestration, it is a challenge. And you do your best under 
the circumstances to come up with the right answer.
    Mr. Richmond. As you went through the releases and as you 
sit here today, do you think that your department went through 
the necessary due diligence to make sure that the people who 
were released posed the least threat to our citizens and our 
constituents?
    Mr. Morton. The instructions to the field were clear. These 
decisions were made by career professionals in the field. So we 
did do the necessary due diligence in the sense of giving out 
good instructions. But we are going to follow through. This is 
not something that was done one day. We will continue to review 
these releases. If we made a mistake, we will take the person 
back into custody. I do not claim perfection for the Agency in 
each and every action it makes over a year. And we have made 
releases on the best judgments we could, on the record that was 
available, and if we get it wrong upon review, we will take the 
person back into custody. We will put them on a different level 
of detention. We are doing that now.
    Mr. Richmond. Thank you, Mr. Chairman. I yield back.
    Mr. Goodlatte. I thank the gentleman.
    And the Chair recognizes the gentleman from Idaho, Mr. 
Labrador, for 5 minutes.
    Mr. Labrador. Thank you, Director Morton. I actually had 
the privilege of working with ICE for 15 years as an 
immigration lawyer. We were on the other side, but I know what 
a difficult job you have and what a difficult job the men and 
women in your office have.
    I do have a question. Was it your idea--just to follow up 
on the questions. Was it your idea to not pass a budget for 4 
years?
    Mr. Morton. Obviously, budget decisions rest with the 
Congress of the United States.
    Mr. Labrador. I just want to remind the people on the other 
side that it has not been this house who has not passed a 
budget, that it was the Senate that has not passed a budget in 
4 years. But that is neither here nor there.
    The gentleman from Pennsylvania asked you a line of 
questions. And the question today, was it policy or was it 
politics--can you at least understand why this question is 
being raised? I think you have acknowledged a little bit that 
you made some mistakes. Can you understand why this question is 
being raised?
    Mr. Morton. I have acknowledged that our notification of 
what we were doing with our Committees of oversight could have 
been better, and I take full responsibility for that as the 
Agency head. The buck stops with me.
    Mr. Labrador. So you said the decisions were made by career 
officers, but you just told us that you had instructions to the 
field. Why were those instructions sent to the field?
    Mr. Morton. So the underlying decisions were made by career 
officers, both in the budget office and in ERO. Instructions 
were given to the field on how to carry out the releases, make 
sure they are non-mandatory----
    Mr. Labrador. So these were not field officers. These were 
career officers in the----
    Mr. Morton. At headquarters.
    Mr. Labrador. At headquarters in Washington. I just want to 
make that clear that this was not field officers making 
decisions. They were getting instructions from your office. Is 
that correct? Okay.
    Now, your budget in 2009 was $4.9 billion. Your budget in 
2010--it was $5.3 billion. Your budget in 2011 was $5.4 
billion, and your budget in 2012 was $5.5 billion. So in the 
last 4 years, your budget has actually been raised by at least 
10 percent. Is that correct?
    Mr. Morton. That is correct.
    Mr. Labrador. So you are coming here and telling us that 
because you have to cut 5 percent of your budget, you cannot do 
the job that you were doing in 2009, 2010. Is that what you are 
telling us?
    Mr. Morton. No. I am telling you that we are operating at 
an all-time high both in terms of detention and the removals 
that we have----
    Mr. Labrador. But you just testified that in 2009 and 2010, 
you were detaining about--you were deporting about 400,000 a 
year. You were taking credit, which I think you should, for the 
high numbers of deportation, and you had a budget that was 
actually less than what your sequestration budget is going to 
be.
    Mr. Morton. No. Our removals last year were the highest 
ever.
    Mr. Labrador. Yes, but in the last 4 years, you have 
averaged 400,000 deportations, removals. Is that not correct?
    Mr. Morton. I did.
    Mr. Labrador. And you did it with a budget that was 
bigger--actually smaller than the budget we are talking about 
right now with the 5 percent cut.
    Mr. Morton. I gave you an average for the year--for the 4 
years. If I were to give you each year, it would be 
substantially less.
    Mr. Labrador. So again, in 2009, you had 4.9 which is 
substantially less than what you have right now even with 
sequestration. In 2010, you had 5.3, which is about what you 
are going to have, and you were able to do your job.
    Now, as a practitioner, I had an opportunity to work with 
people in detention quite a bit. I had thousands and thousands 
of clients. And when I look at these numbers, 2,228 were 
released, and you sent out this paper that says detention 
releases solely for budget reasons. But you are telling me that 
1,599 of them had no criminal convictions. Is that correct?
    Mr. Morton. That is correct.
    Mr. Labrador. So was that not something that you were going 
to do anyway, release the majority of these people regardless 
of your budget constraints?
    Mr. Morton. No.
    Mr. Labrador. They were in removal proceedings. Correct?
    Mr. Morton. They are in removal proceedings. We do detain 
non-criminal immigrants who are, nonetheless, removable from 
the United States.
    Mr. Labrador. And if they ask for a release, you make a 
determination, regardless of what the budget is, whether they 
should be released or not.
    Mr. Morton. An immigration judge makes that decision.
    Mr. Labrador. But your field officers have the authority to 
release these aliens. Correct?
    Mr. Morton. That is correct. We have some discretionary 
authority ourselves, and then our determinations are reviewed 
by immigration judges. There are many instances in which we 
seek to detain somebody and an immigration judge, as you know, 
disagrees with us and orders us to release the person. And 
there are also cases that I referred to earlier where, as a 
matter of court ruling, we must release people, the Zadvydas 
case in particular.
    I will just tell you, in addition to these 2,228 budget 
releases, we released about 150 individuals for special 
circumstances. The overwhelmingly largest group were people who 
were unremovable, Vietnamese, Cubans, people we could not get 
travel documents----
    Mr. Labrador. My concern--I think Mr. Marino said it 
correctly. The way you went about this policy actually scared 
America instead of making America feel safe because I know you 
release people every single day, and it seems odd to me that 
since your single largest appropriation is for custody and 
detention, that you did not request reprogramming. And if 
detention is the single largest appropriation, then it follows 
that it is the highest priority of Congress. And if it is the 
highest priority of Congress and you know this, then why would 
you not ask for us to do something about this for reprogramming 
instead of trying to scare the American people and saying that 
because of sequestration, we have to release these people that 
you have the authority to release and have done in the past.
    Mr. Morton. Obviously, I do not agree that we were trying 
to scare America. We were trying to maintain our budget. And 
again, we were at the highest level of detention we have ever 
had and the highest level of removals we have ever had. We 
release people all of the time pursuant to statute, and we got 
to make good judgments with the resources we have on how we go 
about doing that. And that is what we are doing every day. We 
are going to continue to do it for the rest of the year. We 
will try to maintain whatever detention levels Congress 
provides. And it is not so simple when the largest 
appropriation we have is custody operations, and the next 
largest is criminal investigations.
    Mr. Goodlatte. The time of the gentleman has expired.
    Director Morton, we still have four more Members who want 
to ask questions. So we have a vote on. We will recess. The 
gentleman from----
    Mr. Marino. Mr. Chairman, a point of order.
    Mr. Goodlatte. Do you have a unanimous consent request?
    Mr. Marino. Could I have this letter entered as part of the 
record?
    Mr. Goodlatte. Can you identify it for the record?
    Mr. Marino. Yes. It is the Pike County Commissioners, Pike 
County, Pennsylvania. The commissioners sent me a letter on 
some of my questioning pursuant to why Pike County illegal 
immigrant levels are down.
    Mr. Goodlatte. Okay, thank you. And without objection, that 
will be made a part of the record.
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    Mr. Goodlatte. The Committee will stand in recess until 
immediately after these votes.
    [Recess.]
    Mr. Goodlatte. The Committee will reconvene and the Chair 
recognizes the gentleman from New York, Mr. Jeffries, for 5 
minutes.
    Mr. Jeffries. Thank you very much, Mr. Chair.
    You know, I am a new Member here, and I think I am 
generally a pretty optimistic type of person. But oftentimes, 
many of the themes that we have seen over the last several 
months within this institution--and I do not doubt the 
sincerity of several of our friends on the other side of the 
aisle. But many of the themes that we see that have been 
articulated suggest that the sky is falling, and so we are in 
the midst right now of debating what many of us view as a very 
draconian budget, that we are told if it does not get passed, 
the need for such austerity measures are designed to prevent 
the great United States of America from becoming Greece or 
Spain and perhaps something worse. The sky is falling.
    We also on the Subcommittee had a hearing that I believe 
was entitled ``The Obama Administration's Regulatory War on the 
Economy,'' very ominous because the sky apparently is falling, 
notwithstanding the fact that this Administration has created 
about 6 million private sector jobs.
    And today there is a theme advanced by some--again, I am 
not questioning the good faith of any Member's views, but the 
theme is that criminals have been unleashed on the American 
public. And the question that has been posed is, is this policy 
or is this politics?
    Now, I would note parenthetically that I believe in my 
reading of the Twenty-Second Amendment, Barack Obama is 
constitutionally prohibited from even running for office again 
because he was elected and re-elected. I am not sure how 
politics could even make their way into this discussion from 
the electoral context.
    But putting that aside, the issue of whether criminals have 
recklessly been unleashed on the American public is an 
interesting one. And I gather about 2,228 people are at issue 
in terms of the release from detention. Is that correct, Mr. 
Director?
    Mr. Morton. That is correct, sir.
    Mr. Jeffries. And that release took place between February 
9 and March 1. Is that correct?
    Mr. Morton. That is correct.
    Mr. Jeffries. And I believe you testified earlier today 
that there is no evidence, as far as you know, that any single 
one of those individuals, more than 2,000, who was released has 
engaged in criminal activity subsequent to that release. Is 
that correct?
    Mr. Morton. Not that I am aware of. That is correct.
    Mr. Jeffries. Now, of course, that is not to say that 
someone may not engage in some form of destructive behavior at 
some point. These things are very difficult to predict 
scientifically. I am certain that your Agency--and under your 
leadership, you have attempted to do it to the best of your 
ability, as prosecutors and judges and people all throughout 
the American criminal justice system attempt to do.
    But if I just might for a moment go through some of the 
releases that took place at the field offices. It is my 
understanding that about 342 detainees were released from the 
Phoenix field office. Is that correct?
    Mr. Morton. Yes. Arizona had 1 level 1, 30 level 2s, 91 
level 3s, and 122 non-criminal.
    Mr. Jeffries. Thank you. I do not know what is going on 
with this microphone.
    Any evidence that a crime wave was unleashed on the people 
of Phoenix, Arizona?
    Mr. Morton. No. As I said earlier, we only have one level 1 
offender on release in Arizona, and that individual is 68 years 
old and a lawful permanent resident for 44 years.
    Mr. Jeffries. Okay. There is no documented evidence that 
the people of Phoenix, Arizona have been ravaged subsequent to 
the release of these individuals, is there?
    Mr. Morton. There is no indication of a crime wave. We are, 
obviously, going to pay attention to every single case, and as 
I said, if a case needs to have a different outcome, we will 
make that outcome.
    Mr. Jeffries. 341 people were released from the San Antonio 
area. Any evidence that a crime wave has taken place subsequent 
to that release?
    Mr. Morton. Not that I am aware of. We had no level 1 
offenders released in the State of Texas at all.
    Mr. Jeffries. Okay. San Antonio was number 2.
    Miami, number 4, 225 folks. Any evidence of a crime wave 
unleashed on the people of Miami?
    Mr. Morton. So far, we have had no evidence of serious 
misconduct.
    Mr. Jeffries. And lastly, Chicago I believe was number 7 on 
the list. And I would note, interestingly enough, that--and I 
would like to ask unanimous consent, Mr. Chair, that an article 
in the Washington Post stated ``Chicago's murder rate is 
finally falling. Can that keep up?'' That that be entered into 
record.
    Mr. Goodlatte. Without objection, so ordered.
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    Mr. Jeffries. And this article notes that in January of 
2013, prior to the release of these people who, I guess in the 
view of some, threatened the well-being of the American 
public--there were 43 homicides, which is at the high end. 
February, interestingly enough, saw a huge drop. Only 14 
homicides, the lowest monthly total since 1957. Now, I am not 
suggesting there is a correlation between that low total and 
the release of these individuals. But any evidence that the 
people of Chicago, number 7 on the list, have been forced to 
endure a massive crime wave as a result of the release of 
detainees?
    Mr. Morton. No, sir.
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Jeffries. Thank you.
    Mr. Goodlatte. The gentleman from North Carolina, Mr. 
Holding, is recognized for 5 minutes.
    Mr. Holding. Director Morton, it is good to see you. We 
worked together when we were both in the Department of Justice 
during the Bush administration, and I congratulate you on your 
promotion in the Obama administration. You always had a 
reputation for intelligence and professionalism and hard work 
during the times that I worked with you, and it is good to see 
you here today.
    I want to follow up a little bit on some questions that Mr. 
Marino asked you earlier.
    I assume all these detainees that were released are in 
various Federal districts. They either came from various 
Federal districts or were held in various Federal districts. 
And I understand it is your testimony that you did not consult 
with individual United States attorneys in those Federal 
districts when you were releasing detainees that would have 
come from them. Is that correct?
    Mr. Morton. That is correct, although most of the detainees 
that we receive on the criminal side are coming from State and 
local custody, just the sheer volume.
    Mr. Holding. If I may interrupt--you know, the United 
States attorney is the chief Federal law enforcement in the 
district, and they would be your attorneys in each one of the 
Federal districts. Correct? You seek guidance from the United 
States attorney's office?
    Mr. Morton. On criminal prosecution matters? Of course.
    Mr. Holding. And on civil matters.
    Mr. Morton. Yes, although they do not get involved in 
administrative removal matters.
    Mr. Holding. But they would. For instance, if you had an 
EEOC claim or some sort of claim within your Agency, it would 
be the United States attorney's office who would be your 
lawyers and give you advice.
    Mr. Morton. They would, indeed. And I am a strong supporter 
of the United States attorney's office.
    Mr. Holding. During my tenure as a United States attorney, 
we worked very closely with ICE. All Federal law enforcement 
struggles with funding and struggles with covering their 
mission with the amount of dollars that they have to do it. And 
I think the motto throughout the law enforcement family is that 
we just have to do more with less. One of the ways we were 
always able to work well together is because the RAC's and the 
SAC's from ICE and other Federal agencies kept us well informed 
as to what was going on.
    I must say I find it incredibly unfortunate that you were 
not consulting with your individual United States attorneys 
when you made a decision of this nature. You know, the chief 
Federal law enforcement officer is charged with enforcing the 
laws within the district, the Federal laws. And for you to be 
releasing detainees is unfortunate.
    But moving on to budgetary questions, you know, I 
understand that with the exception of the custody operations, 
ICE was operating under the presidential budget, not the budget 
set by Congress under the continuing resolution. And as a 
result, all of the other accounts in ICE carried a balance of 
$240 million for the year and $120 million for the past 6 
months. And additionally, your CFO indicated that ICE carried 
forward $100 million to $120 million in user fee balances.
    Again, all Federal law enforcement is juggling and 
struggling to cover their core missions.
    So why didn't ICE ever submit a reprogramming request to 
the appropriations rather than releasing detained illegal 
immigrants?
    Mr. Morton. With regard to the appropriations outside of 
the custody operations, we were pursuing a conservative 
approach. The reason we were pursuing a conservative approach 
is because we did not know what our budget would be for the 
rest of the year, and those funds are what is going to allow us 
to operate at a substantial level in those accounts for the 
rest of the year. And I did not want to move monies out of the 
other accounts. And again, the biggest one we have is domestic 
investigations. I want to make sure we are doing everything we 
can on child pornographers and drug traffickers and alien 
smugglers possible.
    With regard to the user fee balance, we would have to get a 
reprogramming authority to use those funds. They are not 
available to us except for a very small amount, and there are 
restrictions on how they are used. And we are considering, as 
part of how we are going to deal with sequestration and 
whatever budget we get from Congress in the remaining 6 months 
of the year, using those user fee balances if we can get 
approval for them.
    I will just note I understand we are below 34,000 right now 
in terms of our detention levels, but on average we have 
maintained during the non-sequestration portion of this CR an 
average balance of 33,925. The Agency was right where it needed 
to be in terms of what Congress asked of it.
    Mr. Holding. Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    The gentleman from Florida, Mr. Garcia, is recognized for 5 
minutes.
    Mr. Garcia. How are you doing, Director?
    So I have got a few quick questions I want to ask you.
    Several times you have made reference to robbing Peter to 
pay Paul. In real terms, what does it mean? Give me some 
examples of the kind of investigations and programs that you 
might need to cut to maintain 34,000 beds and still comply with 
sequester?
    Mr. Morton. Thank you.
    ICE does two things. We are part of the immigration 
enforcement system, the administrative system, along with CBP 
and CIS. And we are also the principal criminal investigator 
for the Department of Homeland Security. In fact, we are the 
second largest criminal investigative agency in the Government. 
We have more special agents than we do immigration enforcement 
officers. And that work is important work. We are out there 
every day investigating border crimes, transnational crimes, 
child exploitation, and that work is critical to homeland 
security and to national security. We are the second largest 
Federal contributor to the Joint Terrorism Task Forces in the 
country outside of the FBI itself. Important work, needs to go 
on, and in my view we should not take and divert resources from 
domestic investigations to the detention budget if that would 
mean fewer child exploitation cases, fewer special agents on 
the streets, fewer drug trafficking cases.
    Mr. Garcia. ICE has a mandate to maintain 34,000 detainees. 
How many individuals do you safely feel can be released under 
alternative detention?
    Mr. Morton. Well, the alternative detention program has an 
enormous amount of promise, and there is a very high rate of 
appearance for the full-service model. So long-term I think it 
is something that Congress should pay a lot of attention to, 
and I think it could help with some of the budget challenges 
that the Committee and other Committees are wrestling with.
    The trick with alternatives to detention is to make sure 
that the case is heard quickly. The average cost of 
alternatives to detention on a full-service model is $7 a day 
compared to as much as $122 a day for detention. However, if 
the case takes much, much longer to be heard and decided, 
eventually you lose the benefit of that much lower rate.
    Again, I think it is an important form. It was started back 
in 2002 during the Bush administration. It makes sense, 
assuming we can get the cases on ATD heard quickly.
    Mr. Garcia. Director, part of the----
    Ms. Lofgren. Mr. Chairman, there is something wrong with 
the microphones here.
    [Pause.]
    Mr. Garcia. So there was made an allusion that for some 
reason you were doing this for political machinations. So I 
want to give an example because we had something happen because 
of budgetary reasons which have nothing to do with you. And 
there is a video we wanted to run. Do we have that?
    [Video shown.]
    Mr. Garcia. Director, the reason I showed that is because I 
want the Members of this Committee to understand that you are 
doing a tough job under circumstances you did not plan for. We 
clearly did not expect to be here, and it is our responsibility 
as the Congress to find a way past this and to find agreement 
among ourselves.
    What you are doing you are doing, I would imagine, to make 
sure you can carry out the duties and responsibilities of your 
office. Correct?
    Mr. Morton. That is exactly right.
    Mr. Garcia. There was an allusion made you did this same 
work last time and deported 400,000. You were about at the same 
number the year before that and I think the year before that. 
Correct?
    Mr. Morton. That is right.
    Mr. Garcia. I would assume that the first 400,000 were a 
little bit easier than the second 400,000, than the third 
400,000, I would imagine.
    Mr. Morton. It is a challenge for us. We are trying to 
prioritize our efforts on those that make the most sense.
    Mr. Garcia. Thank you. I will yield back the balance of my 
time.
    Mr. Goodlatte. I thank the gentleman.
    And the Chair recognizes the gentleman from Ohio, Mr. 
Jordan, for 5 minutes.
    Mr. Jordan. Thank you, Mr. Chairman.
    Mr. Garcia, Director, said that there was no way you could 
plan for this and what was shown to us in the video. Why could 
you not plan for this?
    Mr. Morton. The challenge this year has been that we have 
had a 6-month CR. As you know, on March 27, our funding is 
going to run out. I trust that the Congress of the United 
States----
    Mr. Jordan. I am talking about sequester. When did 
sequester become law?
    Mr. Morton. The sequester took effect on March 1.
    Mr. Jordan. No, but when was it passed?
    Mr. Morton. The sequester has been around for quite some 
time, obviously.
    Mr. Jordan. August 2, 2011, 20 months ago. So the statement 
that you could not plan for it--I mean, it seems to me you got 
20 months to plan for it.
    When did your Agency start planning for sequester?
    Mr. Morton. Obviously, I think we, like most people, hoped 
that sequester would not become reality.
    Mr. Jordan. You cannot plan on hopes. You got to decide. 
The law said August 2. It said on January 1, 2013, the 
sequester is going to happen. You got a 2-month reprieve on 
that. It took place March 1. When did you start planning for 
what everyone knew the law said? Or is it the practice at ICE 
not to plan and make decisions based on the law of the land and 
say, oh, we hope it is not going to happen? When did you start 
planning?
    Mr. Morton. On the contrary. We are doing what the law 
requires in a very uncertain environment.
    Mr. Jordan. No, that is not the question. When did the 
folks at ICE--when did you start planning for a law that was 
enacted on August of 2011? Did you start August 3, 2011? Did 
you start sometime in 2012? Did you start March 2, 2013? When 
did you start?
    Mr. Morton. Remember, most of these releases were due to 
the CR.
    With regard to sequestration, we began to plan in earnest 
at the beginning of this year.
    Mr. Jordan. So you waited until January of 2013?
    Mr. Morton. We waited until January, 2013----
    Mr. Jordan. So when did you make the decision to release 
the 2,228 detainees? When was that decision made?
    Mr. Morton. Well, the discussions on that have been ongoing 
since the beginning of this year. The actual----
    Mr. Jordan. More importantly----
    Mr. Morton [continuing]. Decisions were made----
    Mr. Jordan. Well, let me cut in here. I only got 5 minutes.
    When did you decide that you were going to release the 629 
who were criminals?
    Mr. Morton. The instructions went out on February 9.
    Mr. Jordan. February 9. And is that the same time you made 
the decision to release the 10 level 1 felons?
    Mr. Morton. The 8 level 1 felons----
    Mr. Jordan. Or 8 level 1 felons?
    Mr. Morton [continuing]. Yes--were part of that overall 
decision.
    Mr. Jordan. And do you think maybe if you would have 
started planning sometime before this year--you had 20 months 
to get ready for it--do you think maybe we would not have to 
release 2,228 detainees, 629 who were criminals, 8 who were 
level 1 felons? But do you not think that is maybe a question 
the American people would ask? Maybe if you started planning 
for this, when it actually became the law, maybe we would not 
have to let 8 felons on the street.
    Mr. Morton. Congress asked us to maintain an average of 
34,000 beds over the period of the CR without sequestration, 
and we did exactly that.
    Mr. Jordan. You keep saying the CR, but in your testimony, 
you said both CR and sequestration had an impact on this 
decision.
    Mr. Morton. That is right. The sequestration resulted in a 
reduction of $300 million to ICE's budget.
    Mr. Jordan. And that is my point. You knew that was going 
to happen on August 2, 2011. If you maybe planned for it, maybe 
you would not have to release 8 level 1 felons on the street.
    Mr. Morton. I do not think that----
    Mr. Jordan. You just said a few minutes ago that you did 
not start planning for this until a few months ago.
    Mr. Morton. I disagree with your characterization that 
everyone felt that that was going to happen.
    Mr. Jordan. Did you not just say January of this year is 
when you started planning for the sequester?
    Mr. Morton. I disagree with your characterization that back 
in 2011, everyone felt that sequestration was going to happen--
--
    Mr. Jordan. I am not asking how you felt. I am asking what 
was the law of the land. And is it the practice for the 
Director of ICE to say, you know, what? We are not going to pay 
attention to what the law of the land says. We are going to 
wait because we think it might not happen. We are going to wait 
and not start to implement this, not start to plan for this 
until January of 2013, some 18 months later.
    Mr. Morton. We have to make good judgments and balance many 
uncertainties, one of which was sequester. Another was the CR, 
and another----
    Mr. Jordan. Who makes the final decision? Who made this 
decision to let the 8 felons back on the street? Is that your 
decision or is that someone else in the Department who makes 
that decision?
    Mr. Morton. No. The actual decisions on each case were made 
in the field.
    Mr. Jordan. In the field. What does that mean?
    Mr. Morton. That means by our local field officers.
    Mr. Jordan. Do you have to sign off on that?
    Mr. Morton. I do not.
    Mr. Jordan. Mr. Chairman, I yield back.
    Mr. Goodlatte. Will the gentleman yield? Would the 
gentleman from Ohio yield to me?
    Mr. Jordan. I forgot to do that. I would be happy to yield.
    Mr. Goodlatte. Thank you.
    I just want to make the point that when you talk about the 
CR causing problems for you, you got the funding that you 
requested to be able to maintain the mandate of 34,000 beds as 
a result of that.
    Now, you have a 5 percent cut moving forward from March the 
first to the end of this year. That 5 percent cut, if you were 
to apply it--and I do not think you should apply it equally 
across the entire budget of your department, that you could 
make keeping criminal aliens in detention a priority. But 
assuming you went ahead with your decision, a 5 percent 
reduction of 34,000 would be a reduction of about 1,700 people. 
Now, you have already reduced it by 2,200, and we have a 
document that has already been admitted into the record that 
shows a plan to reduce it down to an average daily population 
of 28,248.
    So this is well beyond what sequestration would require you 
to do, even assuming your policy objective of spreading your 
costs evenly across the entire department. I would not do that. 
I would look into these excess funds you have in other areas 
and use those to keep people in there and not release them onto 
the streets. If you need to work it down a little bit over 
time, wait until you have got people who have been processed 
through the system and been deported rather than putting them 
back out on the streets in the country.
    But it is now an opportunity for, I think, the gentleman 
from Pennsylvania, Mr. Rothfus, to ask his questions. He is 
recognized for 5 minutes.
    Mr. Rothfus. Thank you, Mr. Chairman.
    And thank you, Director Morton, for being here today, and 
thanks for the hard work that you are doing at ICE and all the 
men and women are working for this country there.
    A few questions I am trying to track down. Your written 
testimony stated that every individual released was placed on 
an alternative form of ICE's supervision. Is there a standard 
protocol for the level 1 offenders to have a certain type of 
alternative form of supervision?
    Mr. Morton. No, although generally a level 1 offender will 
receive more attention than someone else. Again, it is a case-
by-case determination.
    Mr. Rothfus. What kind of things would you be doing with a 
level 1 offender once they are released?
    Mr. Morton. Well, let me give you some examples. We would 
determine do they have any United States citizen children, how 
old are they, how long have they been in the United States.
    Mr. Rothfus. Are these individuals given an ankle bracelet, 
something like that?
    Mr. Morton. Some of them may have an ankle bracelet. Some 
of them may have a bond. It depends----
    Mr. Rothfus. So there is no standard protocol for a level 1 
offender.
    Mr. Morton. No. The law allows us to pursue various forms 
of supervision.
    Mr. Rothfus. You testified on March 14 before the 
Appropriations Committee's Homeland Security Subcommittee that 
there were 10, not 8--that there were 10 level 1 offenders that 
were released. Can you explain the discrepancy in your 
testimony today?
    Mr. Morton. Yes, I can. So that is correct. We testified 
that there were 10. As it turned out, when we reviewed every 
single one of the level 1 offender cases, two of the cases 
involved misclassification in the computer system and their 
criminal record was less severe than initially thought, and 
they were reclassified as level 2 offenders.
    Mr. Rothfus. So you had eight level 1 offenders, four of 
whom have been apprehended.
    Mr. Morton. Four of whom are in our custody and four of 
whom remain----
    Mr. Rothfus. Do you know where the other four are?
    Mr. Morton. I do, indeed.
    Mr. Rothfus. And why are they level 1 offenders, do you 
know?
    Mr. Morton. I do. So there was the gentleman that I 
referred to earlier who was released in Arizona. He had 
convictions for theft offenses and drug offenses. He is 68 
years old and has been in the country as a lawful permanent 
resident for 44 years, and an immigration judge found he was 
not a danger to the community.
    There were two other releases from Illinois, larceny and 
criminal trespass. The individual has three United States 
children, one with a degenerative eye disease. An immigration 
judge found he too was not a danger to the community. The 
second Illinois case involved an immigration offense and 
misdemeanor offenses. He is 55 years old and has been in the 
country 34 years.
    And the California case involved burglary, vandalism, and a 
DUI. He is a 23-year resident. Both parents are naturalized 
United States citizens, and he is on ATD with GPS monitoring 
24/7.
    Mr. Rothfus. Now, you testified that you had no 
communication with DHS leadership prior to the release of the 
individuals. Is that correct?
    Mr. Morton. That is correct.
    Mr. Rothfus. Did anyone at ICE have any discussion with 
anybody at DHS leadership?
    Mr. Morton. Not that I am aware of.
    Mr. Rothfus. Any discussion that you or anybody at ICE 
would have had with anybody at the Department of Justice?
    Mr. Morton. Not that I am aware of.
    Mr. Rothfus. Any discussion that you or anybody at ICE 
would have had a discussion with somebody at the White House?
    Mr. Morton. Not that I am aware of.
    Mr. Rothfus. Did you or anyone at ICE receive any talking 
points or messaging points from the White House on how to 
handle budget issues with respect to sequestration?
    Mr. Morton. We have certainly received instructions from 
the Office of Management and Budget on planning, how to execute 
sequestration were it to come to pass.
    Mr. Rothfus. In fiscal year 2012, it looks like the 
appropriation that was allocated for custody operations was 
just over $2 billion, $2,500,000,000.
    Mr. Morton. Yes, sir.
    Mr. Rothfus. Under the CR, that number is continued into 
fiscal year 2013 to at least March 27, irrespective of the 
sequester. The President requested $1.9 billion about for 
fiscal year 2013 for custody operations. Is that correct?
    Mr. Morton. Yes, sir.
    Mr. Rothfus. Looking at the fiscal year 2012 number of 
$2,500,000,000, 5 percent of that number is $102 million. So 
that is the number I think we are looking at today with respect 
to your concerns of custody--we were talking about $300 
million, but the number is really $102 million in the context 
of custody operations. Correct?
    Mr. Morton. For custody operations, it is a little over 
$100 million.
    Mr. Rothfus. And you have already discussed that there is 
$120 million sitting out there in user fees that is being held.
    Mr. Morton. There is an unobligated balance in one of the 
user fees. It does not provide for spending in direct terms for 
custody operations, but it does allow--it could be used for 
some custodial----
    Mr. Rothfus. How many meetings did you have with your CFO 
with respect to how to get through the budget----
    Mr. Morton. Excuse me. I did not----
    Mr. Rothfus. How many meetings have you had with your CFO 
with respect to trying to work your way through this budget 
process?
    Mr. Morton. Oh, numerous.
    Mr. Rothfus. And when did those meetings start?
    Mr. Morton. So the meetings have been ongoing for the last 
couple of weeks to make sure that we deal with sequester as it 
plays out. Obviously, we are still waiting on our funding for 
the next 6 months, and we want to make sure that we end the 
year here on March 27 within the appropriations directions that 
we have, less the money for sequester.
    Mr. Rothfus. I yield back, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    The gentleman from Texas, Mr. Poe, is recognized for 5 
minutes.
    Mr. Poe. Thank you, Mr. Chairman.
    I think I am last. So your day is done with Congress as 
soon as I am through, I believe.
    I want to go through the basics again. This decision was 
not made by the President. It was not made by the Secretary of 
Homeland Security, and this decision was not made by you. Is 
that correct?
    Mr. Morton. That is right. The decision was made by the 
career officials in ERO and in discussion with the CFO.
    Mr. Poe. So the financial folks made this decision 
basically.
    Mr. Morton. And the operational people responsible for it.
    Mr. Poe. And the people that have been released--you know 
who these people are. Is that correct? The 2,000-plus. We know 
who these people are.
    Mr. Morton. We as in the Agency.
    Mr. Poe. You.
    Mr. Morton. Yes.
    Mr. Poe. Could you furnish the names and country of origin 
to the Chairman?
    Mr. Morton. We----
    Mr. Poe. Could you do that or not? Either yes or no.
    Mr. Morton. Well, with the exception of personal 
identifying information that by law we are restricted from 
giving, we are providing----
    Mr. Poe. But that does not include their names or----
    Mr. Morton. We are happy to provide a summary of the cases, 
individual cases, and to the extent----
    Mr. Poe. Let me reclaim my time. I reclaim my time. You can 
give the names and the country of origin. You can do that. 
Correct?
    Mr. Morton. Do we know who these individuals are?
    Mr. Poe. Yes.
    Mr. Morton. Yes, sir.
    Mr. Goodlatte. If the gentleman would yield.
    Mr. Poe. Yes, I will.
    Mr. Goodlatte. I would just inform the Director. The 
Privacy Act does not apply to----
    Mr. Morton. I understand if the full Committee or the 
Chairman makes a request. I understand that.
    Mr. Poe. So the answer to my question is, yes, you can 
supply the names of the people and the country of origin to the 
Chairman if he requests. It is a simple question. You can do 
that.
    Mr. Morton. If the full Committee were to request it, yes.
    Mr. Poe. So the decision was made by the financial folks.
    Now, my question to you is this. Do you understand, do you 
see that the way this was handled could scare the American 
public? I mean, have you got that message yet, or do you think 
that occurred? I will tell you it occurred in my district. It 
could not have been handled worse by allowing, all of a sudden, 
the press to know 2,000 people that are being detained are 
being released by your Agency, and you did not know about it. 
So I think it could not have been handled worse. I am not 
saying it was done on purpose to scare the people. I am saying 
the result occurred that way, that it did have the effects of 
scaring the American public.
    I sent Secretary Napolitano a letter. She just, of course, 
did not respond. I gave you a copy of the letter last week or 
your staff. I would like for you to respond to these questions. 
I would like this letter filed for the record. I ask unanimous 
consent. Mr. Chairman, I ask unanimous consent.
    Mr. Goodlatte. Without objection, they will be made a part 
of the record.
    [The information referred to follows:]


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                               __________

    Mr. Poe. Thank you.
    We have heard a lot about people being released, released, 
released. And 40 percent do not come back for whatever reason. 
They do not show up for their deportation hearing--many of 
those people. Because of budget restraints, because there is 
not enough room in the inn, the determination is made you are 
released until your deportation hearing, which may be a year 
from now or even longer, and 40 percent just do not show up.
    Now, I was a judge in Texas for 22 years. I tried only 
felony cases. If I had a 40 percent non-return of people who 
were released on bond or pretrial release, they would have had 
me in jail for that.
    So it seems to me we operate under a system where Border 
Patrol and ICE I think do a good job capturing folks, and then 
all of a sudden, they are released. And then they go to capture 
40 percent of them again because they do not show up for their 
deportation hearing.
    My question to you is this. Since this financial officer 
made this decision--and you did not make the decision, the 
Secretary of Homeland Security did not make this decision--can 
the financial officer just decide--do you think he has or she 
has the legal authority to release 30,000 of them? Do they have 
the legal authority? If they had legal authority to release 
2,000, does the financial officer have the legal authority to 
release 20,000 or 30,000? You are a lawyer. Can you answer that 
question?
    Mr. Morton. I can. First, just to be clear, it was not the 
chief financial officer. It was the operational leaders of ERO 
in consultation with the chief financial officer.
    Mr. Poe. Can this group of people who released the 
individuals that you did not know about--can they just release 
20,000? Do they have the legal authority to do that?
    Mr. Morton. The people who are mandatory detention must be 
detained.
    Mr. Poe. That is not most of these people, though, is it?
    Mr. Morton. The 2,228 individuals by definition the 
instructions were they could not be subject to mandatory 
detention. About two-thirds of the people in our custody right 
now are subject to mandatory detention and would need to be 
detained. Your scenario where we would release 30,000 people is 
not possible because the law directs us to----
    Mr. Poe. So they could release a third of them, though.
    Mr. Morton. We could release those people----
    Mr. Poe. In theory, you could release about a third of 
them, which is about 10,000.
    Mr. Morton. Those individuals that the law provides 
discretion for.
    Mr. Poe. It is a simple yes or no. Do you believe that your 
Agency has the legal authority without judicial intervention, 
Federal judge, immigration judge--without judicial 
intervention, do you have the legal authority to release that 
one-third, 10,000? Either you do or you do not.
    Mr. Morton. We have the legal authority to release people 
not subject to mandatory detention.
    Mr. Poe. And that is a scary thought.
    I yield back.
    Mr. Goodlatte. I thank the gentleman.
    Director Morton, I want to thank you. You have given 4 
hours of your time, and I know it has not been your favorite 
experience.
    But I will tell you that I am very concerned with how this 
has been handled. To me, here in the Congress, we are in the 
midst of a very concerted effort on both sides of the aisle, a 
bipartisan effort, to address the kind of immigration reform 
that many people in this country think that we need to have and 
that you struggle with the problems of our current system every 
day.
    Ms. Lofgren. Mr. Chairman?
    Mr. Goodlatte. In the midst of this process, for the 
release, without any notification to the Congress of 2,200 
criminal aliens, or a portion of which were criminal aliens, 
and the planned release, according to documentations here of 
several thousand more, is not helpful when one of the critical 
issues that we are going to have to deal with in the Congress 
is how to convince the American people that if we make the kind 
of immigration reform that is being discussed, that we provide 
legal status to millions of people--how will we convince them 
that this problem will not reset itself, it will not reoccur. 
What changes can we make? What guarantees can we give the 
public that our immigration laws will be enforced and we will 
not have millions of people not lawfully in the country?
    Now, you have limited resources to address that and we 
certainly understand that. You have been given a mandate by the 
Congress to retain 34,000 people, and to say that lower level 
officials can automatically, not based upon individual 
circumstances of the people being detained, but based upon 
spending measures and the available funds, make this decision 
without ever even consulting with you, without ever even your 
consulting with the Secretary of Homeland Security, without 
ever considering that if the Congress has a mandate and you 
need the funds to meet the mandate, you should come to the 
Appropriations Committee and ask for the reprogramming of funds 
that are available and accessible for you to do that.
    I think that given the set of circumstances we are in, it 
is an unfortunate set of circumstances that we find ourselves 
in, and this has not been helpful to that process because we 
have got to build the confidence of the American people that if 
we do comprehensive immigration reform in some way, shape, or 
form, we are going to address the enforcement side of this just 
as aggressively as we enforce the reforming of our legal 
immigration system and the reforming of what we do with people 
who are not lawfully here right now.
    And I know the gentlewoman from California wanted me to 
yield to her, and I will do that.
    Ms. Lofgren. I thank the gentleman for yielding.
    I think this has been a useful hearing getting the facts 
out. I do not disagree that this could have been handled in a 
better way. I think it raised alarms that were unnecessarily 
raised.
    But the issue of a 40 percent failure rate, failure to 
appear rate, has been raised. That is from a 2007 IG report, 
and I am wondering if we could ask the department to report 
what is the current FTA rate, not right this minute, but 
subsequent to the hearing.
    Mr. Goodlatte. I think that is a fine request. We think 
there is more recent data, but we would also ask the Director, 
if that data is available for a more recent period than 2007, 
to provide that to us, if it is available to you. And if we 
have additional information, we will provide that to you as 
well.
    I thank the gentlewoman for her question.
    And I thank the Director again for his participation here 
today.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the Director or 
additional materials for the record.
    And with that, this hearing is adjourned.
    [Whereupon, at 4:56 p.m., the Committee was adjourned.]
















                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Material submitted by the Honorable Doug Collins, a Representative in 
   Congress from the State of Georgia, and Member, Committee on the 
                               Judiciary


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