[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ASYLUM ABUSE: IS IT OVERWHELMING
OUR BORDERS?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 12, 2013
__________
Serial No. 113-56
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
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
RAUL LABRADOR, Idaho SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas JOE GARCIA, Florida
GEORGE HOLDING, North Carolina HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
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DECEMBER 12, 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 Zoe Lofgren, a Representative in Congress from the
State of California, and Member, Committee on the Judiciary.... 3
The Honorable Jason Chaffetz, a Representative in Congress from
the State of Utah, and Member, Committee on the Judiciary...... 6
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 7
WITNESSES
Michael J. Fisher, Chief of the U.S. Border Patrol, Customs and
Border Patrol
Oral Testimony................................................. 25
Lori Scialabba, Deputy Director, U.S. Citizenship and Immigration
Services
Oral Testimony................................................. 26
Daniel H. Ragsdale, Deputy Director, Immigration and Customs
Enforcement
Oral Testimony................................................. 27
Joint Prepared Statement....................................... 30
Ruth Ellen Wasem, Specialist in Immigration Policy, Congressional
Research Service
Oral Testimony................................................. 45
Prepared Statement............................................. 47
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 10
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 68
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 75
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 173
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 184
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 200
Material submitted by the Honorable Jason Chaffetz, a
Representative in Congress from the State of Utah, and Member,
Committee on the Judiciary..................................... 204
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 212
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 220
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 224
ASYLUM ABUSE: IS IT OVERWHELMING
OUR BORDERS?
----------
THURSDAY, DECEMBER 12, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:16 a.m., in room
2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Sensenbrenner, Coble,
Smith of Texas, Chabot, Forbes, King, Franks, Gohmert, Jordan,
Poe, Chaffetz, Marino, Gowdy, Labrador, Farenthold, Collins,
DeSantis, Conyers, Scott, Lofgren, Jackson Lee, Johnson, Chu,
Deutch, Gutierrez, and Garcia.
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. Good morning. The Judiciary Committee will
come to order. And without objection, the Chair is authorized
to declare recesses of the Committee at any time.
I will begin with my opening statement. The United States
of America is extremely hospitable to immigrants, asylees, and
refugees. Our Nation's record of generosity and compassion to
people in need of protection from war, anarchy, natural
disaster, and persecution is exemplary and easily the best in
the world.
We have maintained a robust refugee resettlement system,
taking in more United Nations designated refugees than all
other countries combined. We grant asylum to tens of thousands
of asylum seekers each year. We expect to continue this track
record in protecting those who arrive here in order to escape
persecution.
Unfortunately, however, because of our well-justified
reputation for compassion, many people are tempted to file
fraudulent claims just so they can get a free pass into the
United States. The system becomes subject to abuse and fraud
when the generous policies we have established are stretched
beyond imagination by the Administration.
It also becomes subject to abuse when people seek to take
advantage of our generosity and game the system by identifying
and exploiting loopholes. Unfortunately, some advocacy groups
have undertaken a strategy of staging public violations of
immigration laws in a brazen attempt to politicize the issue of
immigration reform.
They somehow seem to believe that this is productive. It is
just the opposite. In one example, the so-called Dream 9 and
Dream 30 voluntarily crossed the border and returned to their
home countries with orders of deportation. Just days later,
pursuant to their plan, they were apprehended by Border Patrol
and claimed that they had a credible fear of returning to the
very country to which they just intentionally self-deported.
Political stunts like these demonstrate the ineffectiveness
of the asylum process and damage credible claimants. Unlawful
or inadmissible aliens caught along the border or at ports of
entry can claim a credible fear of persecution in order to seek
a hearing before an immigration judge.
Over the past several years, credible fear claims have been
granted at ever-growing rates. Currently, data provided by the
Department of Homeland Security shows that USCIS makes positive
credible fear findings in 92 percent of all cases decided on
the merits. Not surprisingly, credible fear claims have
increased 586 percent from 2007 to 2013, as word has gotten out
as to the virtual rubberstamping of applications.
Not only is the rise in credible fear claims concerning,
the Administration is contributing to undermining our asylum
system by failing to follow current law as it pertains to the
asylum process. Pursuant to the Immigration and Nationality
Act, arriving aliens are subject to mandatory detention,
whether they are found to have credible fear or not, until it
is determined whether they have legitimate asylum claims.
This crucial requirement is designed to prevent aliens from
being released into our communities and then disappearing into
the shadows. The detention standard was enacted precisely
because large numbers of arriving aliens were absconding after
claiming asylum and being released.
Under the statute and corresponding regulations, under
limited circumstances, parole from detention is available to
meet a medical emergency or if it is a necessary for a
legitimate law enforcement objective. However, these standards
have been watered down by the current Administration via
executive fiat. A December 8, 2009, policy directive issued by
former ICE Director Morton provides that any arriving alien who
has been found to have a credible fear and can establish
identity and argue that they are not a flight risk or a danger
to the community should be released by ICE.
This is inconsistent with the statute that requires
detention except in very limited circumstances. And not
surprisingly, the timing of this memo appears to correlate with
the uptick of credible fear claims in recent years.
As a result of these lax detention standards and ease of
being found to have a credible fear, claims have increased
dramatically in recent years. The stellar efforts of our Border
Patrol agents are in vain if the aliens they apprehend are
simply released into our communities. Once released, many of
these aliens, particularly those with meager or invented claims
of asylum, simply melt into the population.
Critics allege that the purpose is not to obtain asylum,
but rather to game the system by getting a free pass into the
United States and a court date for which they do not plan to
show up. Accounts indicate that aliens being coached in the
asylum process and that aliens are being taught to use certain
terms to ensure that they have--that they are found to have a
credible fear. According to critics, many of these claims are
often an orchestrated sham.
In addition to this alarming trend, the House Judiciary
Committee recently obtained an internal CBP memo that states
many people claiming a credible fear of persecution at our
ports of entry have a direct or indirect association with drug
trafficking and other illegal activity, such as human
smuggling. Since there are intelligence gaps and loopholes in
the system, the asylum process is often being abused by
individuals who would otherwise be subjects of interest or
subjects of criminal investigations.
Once these unscrupulous individuals falsely claim a
credible fear of persecution, there is virtually no
investigation by U.S. authorities. Because the Obama
administration refuses to detain most of them, criminals and
those who pose national security threats are then able to live
and work in the U.S. for many years before their cases are ever
heard by immigration judges.
Ultimately, the Administration is demonstrating its
inability and lack of desire to enforce the law. The threat of
infiltration by criminal elements and cartels is putting the
American public at risk. These decisions are neither prudent
nor wise. To make matters worse, they undermine the confidence
in a secure border necessary to develop a common sense, step-
by-step approach to improving our immigration laws.
I look forward to getting to the bottom of this disturbing
problem today, and it is now my pleasure to recognize the
Ranking Member of the Immigration and Claims Border Security
Subcommittee, the gentlewoman from California, Ms. Lofgren, for
her opening statement.
Ms. Lofgren. Thank you, Mr. Chairman.
Five years ago, I became part of an increasingly rare
process in the House of Representatives. A large bipartisan
group of lawmakers met once or twice a week, sometimes more
often, to try and devise a plan to fix our broken immigration
system. And although the process went on hiatus for much of the
last Congress, we renewed our efforts last fall and worked hard
until just a few months ago when several Republicans in the
group, for whom I have a great deal of respect, announced their
departure from the group.
That process may not have borne fruit, not yet at least,
but at least it was something. I am afraid that when it comes
to immigration, the work this Committee has done over the past
year has not moved the ball forward. Hope springs eternal,
however. And when I return for the next session in January, I
will come ready to work.
But back to today's topic. Before I address the question
put to us by the title of this hearing, I think it is important
to review how our current expedited removal and credible fear
processes came about and what they are.
In 1996, Congress enacted the Illegal Immigration Reform
and Immigrant Responsibility Act. I voted against the bill in
committee. I voted against it on the floor, and I voted against
it when it came out of conference. I believed then, as now,
that the bill was a mean-spirited bill that would do drastic
damage to immigrants and our immigration system.
And one of the most pernicious aspects of that law was the
creation of expedited removal, which allows people apprehended
at our ports, along the borders, and in some cases, in the
interior, to be deported with little due process.
As Congress recognized at that time, expedited removal
posed the real danger that bona fide asylum seekers would be
summarily removed from the country to face persecution and
torture abroad. In an effort to prevent that unacceptable
outcome, the law required that every person subject to
expedited removal be screened to determine whether they
expressed a fear of returning to their home country.
If so, the law required that except in very limited
circumstances, they be detained until a trained asylum officer
could interview them and determine whether or not they
possessed a credible fear of persecution. We defined ``credible
fear'' at that time to mean that there is a ``significant
possibility, taking into account the credibility of the
statements made by the alien in support of the alien's claim
and such other facts as are known to the officer, that the
alien could establish eligibility for asylum.''
This is a lower standard than the ``well-founded'' fear
standard that applies to a final decision on the merits of an
asylum claim, and that was our intention. We understood that it
can be nearly impossible to demonstrate a well-founded fear of
persecution just days after arriving in the country, and
setting the bar too high would lead to unconscionable results.
After the bill became law, we heard a wave of complaints
regarding the effect that expedited removal was having on
asylum seekers. And just 2 years later, Congress enacted the
International Religious Freedom Act of 1998, and we established
the U.S. Commission on International Religious Freedom, an
independent body whose commissioners are appointed by the
President and congressional leadership of both parties.
In that very first authorizing statute, Congress asked the
Commission to study the impact of expedited removal on people
fleeing persecution. The Commission issued its study in 2005
and concluded that because of expedited removal ``and its
serious flaws, the United States' tradition of protecting
asylum seekers--not to mention those asylum seekers' lives--
continues to be at risk.''
One of the most striking findings had to do with ICE's
practice of paroling people out of detention. Policy guidance
clearly authorized parole after an applicant had demonstrated a
credible fear, had also established his or her identity, had
also showed that he or she posed neither a flight risk nor a
danger to the community.
But while one ICE field office paroled 97.7 percent of
applicants, another paroled just 0.5 percent. So it was
recommended by the Commission that the issuance of regulations
be undertaken to promote consistency.
Now I want to turn to the question of today's hearing,
``Asylum Abuse: Is it Overwhelming our Borders?'' Let us
analyze that.
First, are our borders overwhelmed? By historical measures,
the answer is clearly no. Although we have seen an increase in
attempted border crossings along our Southwest border over the
past 2 years, this is an increase from what appears to be a 40-
year low just 2 years ago.
And given the increases we have made in manpower and
infrastructure at the border, there is no way to argue that
they are more overwhelmed today than they have been for much of
our recent history.
Second, are some parts of our border overwhelmed? I hope to
learn more about that today. But there is no question that we
have seen a sharp increase in people expressing the fear of
being returned to their home countries. There were 5,369 claims
of credible fear in fiscal year 2009; more than double that
number, 13,880, in fiscal year 2012; and nearly triple that
number, 36,035, in this past fiscal year.
Still, to keep things in perspective, only a small fraction
of the people apprehended at and between our ports express such
fear, and the overwhelming majority of people subject to
expedited removal are removed from the country in a short
period of time.
So the final part of the question is whether the recent
increase is a result of asylum abuse? And the truth is we don't
know yet. We can't yet know. The cases that are driving the
increase in fiscal year 2013 have largely not yet been
adjudicated by the immigration courts.
As this Committee has documented time and time again, the
case backlog in our courts, caused primarily by inadequate
investment in new judges, support personnel, and facilities, is
preventing cases from being resolved in an acceptable
timeframe. We do know a few things, however.
The increase in credible fear claims is being driven by
people from Central America. Sixty-five percent of the claims
in fiscal year 2013 came from Guatemala, Honduras, and El
Salvador. Although claims by Mexicans have increased, Mexicans
still make up only 7 percent of all credible fear claims.
Also, more than three-quarters of the claims are coming
from people apprehended between the ports, not at the ports.
Since people apprehended between the ports are not eligible for
parole under the parole directive issued by ICE in 2009, this
provides strong evidence that the directive itself is not
drawing people to come here.
Something is, in fact, going on. The number of people
claiming credible fear of persecution or torture definitely
increased in the last 2 years. But whether that is the result
of better fear screenings, efforts to defraud the system, or a
brewing refugee crisis in the Western Hemisphere is something
we still need to explore. Prejudging that question, I believe,
is dangerous and unwise.
I look forward to learning from our witnesses, and I thank
each of them for appearing today, and I yield back, Mr.
Chairman.
Mr. Goodlatte. The Chair thanks the gentlewoman and is now
pleased to recognize the Chairman of the Subcommittee on
Immigration and Border Security, Mr. Gowdy of South Carolina,
for his opening statement.
Mr. Gowdy. Thank you, Mr. Chairman.
I want to thank you for your work on this issue, and I want
to yield my time to my friend from Utah, Mr. Jason Chaffetz,
who has done remarkable work on this issue, both on Judiciary
and Oversight and Government Reform.
Mr. Chaffetz?
Mr. Chaffetz. I thank the Chairman. I thank you, Mr. Gowdy
and Chairman Goodlatte, for allowing this hearing to happen.
This is a problem, and it is an abuse, and I am glad we are
addressing it.
Today, we are going to examine the threats to our Nation's
border caused by the abuse of the credible fear process. In a
reflection of the Obama administration's undermining of the
enforcement of our immigration laws, these credible fear
claimants almost always get approved and are released into our
communities.
As a result, the integrity of our immigration system is
compromised, and potential threats to our communities and
national security are able to legally live and work here. When
their asylum claims are ultimately denied, they simply add to
the fugitive population here in the United States. This is all
the more troubling because we have received reports that
Mexican drug cartel members are abusing the credible fear
process to bypass regular immigration checks in order get into
the country.
Thereafter, they expand their human and drug smuggling
operations in the United States, and once here, some of these
cartel members even engage in the same violent feuds that
supposedly caused them to flee Mexico in the first place. DHS
has confirmed some of these reports but has refused to provide
us with the documentation they admit exists that details them.
According to reports, cases show that two women made claims
of asylum utilizing credible fear process, and 3 months later
were apprehended at the Border Patrol checkpoint with more than
$1 million in cocaine. One of the women was allegedly married
to a cartel boss.
Information provided by DHS also details cartel hit squad
members who entered the United States after claiming they
feared violence when they fell out of grace with their
employers. And yet in another case two families involved in
drug trafficking came to the United States, claiming credible
fear of persecution, then began targeting each other once they
were here. It is outrageous that dangerous criminals are gaming
the system by claiming they have a credible fear of persecution
when often they have been the perpetrators of violence
themselves.
To make matters worse, the availability of heroin and
methamphetamine in the United States is on the rise due in part
to an ever-evolving entrepreneurial spirit of the Mexican drug
cartels, according to a new study released by the DEA.
According to this report, the amount of heroin seized at the
southern U.S. border has increased 232 percent between 2008 and
2012, apparently as the result of greater Mexican heroin
production and growing incursion by Mexican drug traffickers
into the United States market.
Homeland security officials claim they screen everyone who
makes a credible fear claim and try to identify and detain
those who could be dangerous to the community. Clearly,
whatever they are doing, it is ineffective. And as Chairman
Goodlatte explained, it might be more effective if they adhered
to the actual statute and not legislated from the executive
branch.
It seems amazing to me that the Department of Homeland
Security has not apparently sought to determine, one, why
credible fear claims have risen from about 5,000 in 2008 to
almost 36,000 in 2013 or, two, why the rate that USCIS finds
aliens have established credible fear currently is at almost 92
percent. Ninety-two percent are getting a rubberstamp. They are
getting the golden ticket to come to the United States of
America.
What can be done administratively or statutorily to address
this ongoing and escalating abuse to our system? While DHS has
not yet provided insight into the causes or potential
resolution of the crisis surrounding the level of credible fear
applications, there are likely culprits.
The low threshold for establishing a credible fear, ICE's
recent liberalization of the ``mandatory detention policy for
inadmissible aliens'' who meet this low threshold, inadequate
training for asylum officers, and institutional incentives to
approve applications, something I am deeply concerned about--
many of these abuses could be halted by the Administration
itself.
If word got out that bogus credible fear claims were not
being rubberstamped and the claimants rewarded with almost
certain release into the United States and work authorization,
the vast increase in claims would quickly abate.
However, if the Administration is not willing to take these
steps, I am prepared to pursue necessary legislation to do the
same. In the end, it doesn't matter how many aliens are
apprehended along the border if apprehension itself becomes the
golden ticket to the country.
When I visited Phoenix with Mr. Bentivolio and I went to
the ICE office, we talked about the number of credible fear
claims that were happening in the region. If you claim asylum
in the Phoenix office and they assign you a court date, the
court date you are going to get right now is in 2020. In the
meantime, you are going to get free education, free healthcare,
and you are probably going to get a work permit.
That is not right, Mr. Chairman. I am glad you are holding
this hearing today. I appreciate the time, and I yield back.
Mr. Goodlatte. The Chair thanks the gentleman and is now
pleased to recognize and welcome back the Ranking Member of the
Judiciary Committee, who has been on a mission to help our
country pay our respects to the people of South Africa and in
memory of a great international leader and fighter for freedom,
Nelson Mandela.
And I will have another comment after your remarks. So I am
happy to recognize the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
And we have a couple of our other Members that were on that
memorial trip with me, and we are very happy to be back and
with the Committee.
Now last month, I observed that the very first hearing this
Committee held in the 113th Congress was the need for
immigration reform. It made sense. One day after the election,
the Speaker of the House, Mr. Boehner, called for a
``comprehensive approach'' to immigration reform, as he said
it, ``long overdue.''
A few months later, the Republican National Committee
recognized that the party ``must embrace and champion
comprehensive immigration reform.'' And I agree with both
statements.
So here we are on the last full day of the first session of
the 113th Congress, and so far, we have yet to see any real,
decisive action in the House. Yes, we have had 14 hearings on
the issue, considered 4 bills, each one less effective than the
one before it, in Committee. But even in Committee, we have yet
to consider critical parts to reform.
We have seen no bill for the Dreamers. We have seen no bill
providing a way for the 11 million people living in our
communities, working in our fields and factories, attending our
churches and schools to get right with the law and earn
citizenship. They are still in the shadows.
In fact, the only bill pending in the House that does these
things is H.R. 15, which currently has 193 cosponsors.
Throughout the year, I have been moved by the presence of
immigrant children, Dreamers, who have attended our hearings,
visited our offices, and held events of their own around the
country.
I have listened to faith leaders, business leaders, labor
leaders explain the fierce urgency of enacting common sense
immigration reform. And for the past month, just steps from
where we sit today, advocates for immigration reform have
abstained from all food for weeks on end in order to keep the
Nation's hunger for immigration reform at the forefront of our
work here in Washington.
And despite all of that, our final hearing for 2013 is yet
another hearing that will leave the impression that when
Republicans on this Committee think of immigrants, they think
first of criminals or fraudsters or gang members.
The issue we will address today is not unimportant. We know
that the number of people seeking asylum at our borders has
increased over the last 2 years. In some places, the increase
has been quite dramatic. It is important that we figure out why
this is happening because only after we do that we can figure
out how to deal with it in a responsible way.
But that is not all we have to do. Fixing our broken
immigration system still lies ahead for the House. All year
long, the majority has said that they want to take their time
to do things right and approach immigration reform one piece at
a time.
Now I agree that we should be deliberative, but let us not
fool ourselves. This issue isn't new. We have been working to
fix our broken system for over a decade now. The debates we are
having in this Committee are debates we had going back as far
as 1996, and then in 2005, and then throughout the last
Congress, the 112th.
And we know that this much is true. Families, businesses,
and communities all around this country are counting on us to
do a lot more in 2014 than just hold another 14 hearings.
And so, I stand ready to do the work that needs to be done.
Let us begin the second session by bringing up H.R. 15. And if
not, let us consider some of the Republican bills that I
understand may be the works. Let us just do something. Because
doing nothing is no more an option for us than it is for the
families that are being torn apart each and every day.
And I thank the Chairman, and I yield back any time that
may be remaining.
Mr. Goodlatte. The Chair thanks the gentleman. In fact, the
Chair wants to take this opportunity on the occasion of our
last hearing of this year and the first session of this
Congress to thank all the Members for the hard work they have
put into this Committee.
The Committee has held a total of 16 full Committee
hearings, 48 Subcommittee hearings, has passed 26 bills through
the Committee and 27 bills through the House. Now you may
wonder how we could pass 26 through the Committee and 27
through the House. The reason for that is there are a few, a
small number of bills that went directly to the floor without
Committee consideration and several others that the Committee
shares jurisdiction with other Committees.
But that is a record of accomplishment. And to the point
raised by the gentleman from Michigan, the Committee will in
the new year continue work in a very deliberative manner, but a
very serious manner understanding that immigration reform is
needed, and it will be a top priority.
So I would encourage the Members to take the fact that we
are holding the final hearing of the year on this subject as a
sign of continued work, but also as a sign that we continue to
learn of new problems that need to be addressed, including,
unfortunately, the leaked memo which displays that the
Administration knew far more about the nature of this problem
and how it relates to criminal drug enterprises and, therefore,
needs to be addressed as a part of our effort to do immigration
reform and cover all aspects of immigration reform, including
enforcement, appropriate legal immigration reforms, and finding
the appropriate legal status for those who are not here
lawfully today.
So, with that, I will ask unanimous consent to enter into
the record the following items: Immigration and Customs
Enforcement memo, entitled Parole of Arriving Aliens Found To
Have a Credible Fear of Persecution or Torture; USCIS Asylum
Division data through fiscal year 2013; and a news article
indicating that Border Patrol agents are being ordered to stand
down when encountering drug smugglers, human smugglers, and
traffickers.
Without objection, those will be made a part of the record.
[The information referred to follows:]
__________
__________
__________
Mr. Goodlatte. And at this time, we will turn to our
witnesses. We are very delighted to have all of our witnesses
here today. And if you would all rise, I will begin by swearing
you in.
[Witnesses sworn.]
Mr. Goodlatte. Let the record reflect that all of the
witnesses responded in the affirmative.
Thank you, and I will begin to introduce our witnesses.
Please be seated.
Ms. Lori Scialabba, currently serves as the Deputy Director
of U.S. Citizenship and Immigration Services, a position that
she has held since May of 2011. Prior to being appointed Deputy
Director, she served as the Associate Director of Refugee,
Asylum, and International Operations.
Prior to joining the Department of Homeland Security, Ms.
Scialabba served as chairman of the board of immigration
appeals in the Executive Office for Immigration Review and the
Department of Justice. She received her bachelor's degree in
1982 from the University of Maryland and her juris doctorate in
1985 from Memphis State University.
Mr. Daniel H. Ragsdale currently serves as the Deputy
Director for Immigration and Customs Enforcement, the principal
investigative agency of the Department of Homeland Security. In
this capacity, he also serves as the agency's chief management
officer, overseeing the Office of Management and
Administration.
Mr. Ragsdale joined the former U.S. Immigration and
Naturalization Service's General Counsel Office in 1996 and
served as an attorney in New York, New York, as well as Tucson
and Phoenix, Arizona. He received an undergraduate degree from
Franklin and Marshall College and a J.D. from Fordham
University School of Law.
Mr. Michael J. Fisher is the Chief of the U.S. Border
Patrol and a member of the Senior Executive Service. In this
role, he is responsible for planning, organizing, coordinating,
and directing enforcement efforts designed to secure our
Nation's borders. Chief Fisher entered on duty with the U.S.
Border Patrol in June 1987 as a member of Class 208. His first
duty assignment as a Border Patrol agent was at the Douglas
Station in the Tucson sector.
Chief Fisher earned a bachelor's degree in criminal justice
and a master's degree in business administration. He is also a
graduate of the Senior Executive Fellows Program at the John F.
Kennedy School of Government at Harvard University.
Ms. Ruth Wasem is the specialist in immigration policy at
the Congressional Research Service, U.S. Library of Congress.
In this capacity, she has researched, written, and presented
for the U.S. Congress on immigration and social welfare
policies.
She is also an adjunct professor of public policy at the
Lyndon B. Johnson School of Public Affairs, University of
Texas, where she teaches graduate courses on immigration
policy. Ms. Wasem earned her master's and doctorate degrees in
history at the University of Michigan and received her
baccalaureate degree from Muskingum University.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I ask that each witness
summarize his or her testimony in 5 minutes or less. To help
you stay within that time, there is a timing light on the
table.
When the light switches from green to yellow, you will have
1 minute to conclude your testimony. When the light turns red,
it signals that the witness' 5 minutes have expired.
Welcome again to all of you. And Ms. Scialabba--oh, I am
sorry. We are going to go first to Mr. Fisher.
TESTIMONY OF MICHAEL J. FISHER, CHIEF OF THE
U.S. BORDER PATROL, CUSTOMS AND BORDER PATROL
Mr. Fisher. Chairman Goodlatte, Ranking Member Conyers,
distinguished Members of the Committee, it is a privilege and,
indeed, an honor to appear before you today to discuss U.S.
Customs and Border Protection's efforts to secure the borders.
As this Committee is aware, the mission of the United
States Border Patrol is to reduce the likelihood of attack to
the United States while providing safety and security to its
citizens against dangerous people seeking entry into the United
States to do us harm.
In the process of fulfilling this mission obligation, we
employ a risk-based approach. Simply stated, we assess threats
and vulnerabilities in order to deploy our greatest
capabilities and resources against the highest risk. We execute
this mission in a number of ways, not the least of which is
through the predominant use of information and intelligence.
It was one of these field intelligence reports that was the
focus of an article that appeared in the Washington Times last
month, describing a potential emerging threat and vulnerability
surrounding the credible fear process. The report was authored
by the Unified Command within the Alliance to Combat
Transnational Threats, also called the ACTT, in El Paso, Texas.
The ACTT has been in existence for a few years and is
designed and structured to foster integrated operations. ACTT
members include Federal, State, and local stakeholders from a
number of sectors, the majority being law enforcement. As with
most field intelligence reports, the dissemination within the
ACTT community was wide, as designed, and labeled for official
use only.
This is common practice to not only protect sources and
methods, but to preserve the interagency information in the
event of criminal prosecution, which, in many cases, is the
desired end state. It is too early for me to assess either the
potential emerging threat or vulnerability from the single
report. However, as we continue to collect against the illicit
networks, as well as the identified intelligence gaps described
in the report, and as we broaden our analytical effort, we will
be--we will be in a better position to assess both.
Chairman Goodlatte, Ranking Member Conyers, and again,
distinguished Members of this Committee, thank you for the
opportunity to testify today. I look forward to answering your
questions.
Mr. Goodlatte. Thank you, Mr. Fisher.
Now we will turn to Ms. Scialabba.
----------
TESTIMONY OF LORI SCIALABBA, DEPUTY DIRECTOR,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Ms. Scialabba. Thank you, Chairman Goodlatte, Ranking
Member Conyers, and distinguished Members of the Judiciary
Committee----
Mr. Goodlatte. You may want to pull the microphone a little
closer to you.
Ms. Scialabba. Oh, sure. It makes my eyes cross.
[Laughter.]
Mr. Goodlatte. Sorry.
Ms. Scialabba. Thank you for the opportunity to testify at
today's hearing, alongside with my colleagues from Customs and
Border Protection and Immigration and Customs Enforcement.
As you mentioned, I'm Lori Scialabba, Deputy Director of
U.S. Citizenship and Immigration Services, and my testimony
today will focus on how USCIS supports U.S. efforts related to
border security while upholding our refugee protection
obligations.
The United States has a long and proud history of providing
humanitarian protection. We are signatories to the 1967
protocol relating to the status of refugees, which bars
contracting states from returning refugees to their countries
of feared persecution.
Our obligations under the protocol are primarily
implemented through our Nation's asylum process, which involves
proceedings under two tracks, one in which an individual
applies for asylum affirmatively with a USCIS asylum officer
and the other in which an individual seeks asylum before an
immigration judge with the Department of Justice. At the
borders, individuals who wish to apply for asylum are initially
processed through the expedited removal program, which will be
the subject of the remainder of my testimony.
Prior to the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, all individuals
apprehended attempting to enter the United States unlawfully
were placed in full proceedings before an immigration judge.
These proceedings were time consuming and resource intensive.
Individuals in such proceedings were generally not detained.
The 1996 reforms allowed for the expedited removal of
individuals seeking admission at air, land, and sea ports of
entry without proper documentation. In 2004, the Department of
Homeland Security implemented regulations expanding expedited
removal to apply to individuals apprehended close to a U.S.
border shortly after an illegal entry.
All individuals placed in expedited removal proceedings are
subject to mandatory detention and prompt return to their
countries of origin. In creating this new removal process,
however, Congress was mindful of the United States treaty
obligations relating to the status of refugees and created a
screening process known as credible fear to prevent persons
from being returned to a country in which they would be
persecuted or tortured.
The USCIS Asylum Division administers the credible fear
program. The credible fear screening is the third stage of the
expedited removal process for individuals who express a fear of
return or indicate an intention to apply for asylum. They are
first encountered and placed into expedited removal by CBP.
They are then detained by ICE, pending their credible fear
interviews.
USCIS is the third agency to encounter the individual in
the expedited removal process. USCIS conducts a credible fear
interview to determine whether there is a significant
possibility that the individual will be found eligible for
asylum or withholding of removal. This determination does not
confer any immigration benefit. It is simply a screening
process employed.
The final decision on asylum eligibility rests with an
immigration judge. Credible fear interviews are conducted by a
USCIS asylum officer while the individual is detained by ICE.
Asylum officers comprise a professional cadre within USCIS,
dedicated full time to the adjudication and screening of
protection claims. They are extensively trained in national
security issues, the security and law enforcement background
check process, eligibility criteria, country conditions,
interview techniques, making proper credibility determinations,
and fraud detection.
During the credible fear interview, individuals are
questioned regarding their biographic information, their fear
of persecution or torture, and whether there are concerns that
may make them ineligible for asylum.
USCIS conducts security checks, including biographic and
biometric checks. USCIS coordinates with ICE and other law
enforcement authorities as appropriate if there are reasonable
grounds to believe that an individual may have engaged in
criminal activity or is a security risk.
While information relating to asylum seekers is sensitive
and generally protected from disclosure, regulations and
policies allow for USCIS to share information with law
enforcement agencies for investigative and intelligence
purposes, which is done routinely. As CBP and ICE have already
encountered the individual early in the expedited removal
process, they have also already conducted security checks on
the individual. ICE relies on its security checks to inform any
decision to release the individual from custody.
If USCIS determines the individual does have a credible
fear, he or she is subject to removal--does not have a credible
fear, he or she is subject to immediate removal unless the
individual requests a limited review of USCIS's credible fear
finding by an immigration judge. And an immigration judge can
overrule our decision. If the immigration judge agrees with the
USCIS that the individual does not have a credible fear, then
the individual is removed.
And I see my time is almost up. So I will thank you for the
opportunity.
Mr. Goodlatte. Thank you.
Mr. Ragsdale, welcome.
----------
TESTIMONY OF DANIEL H. RAGSDALE, DEPUTY DIRECTOR, IMMIGRATION
AND CUSTOMS ENFORCEMENT
Mr. Ragsdale. Good morning. Chairman Goodlatte, Ranking
Member Conyers, and distinguished Members of the Committee, on
behalf of the men and women of the U.S. Immigration and Customs
Enforcement, thank you for the opportunity to appear today to
discuss the role ICE plays in protecting border security.
ICE's primary mission is to promote homeland security and
the public safety through the criminal and civil enforcement of
the Federal laws governing border control, customs, trade, and
immigration. ICE is the principal investigative arm of the
Department of Homeland Security.
ICE has two primary operating components, the Office of
Homeland Security Investigation and the Office of Enforcement
and Removal Operations. ERO's primary role is to enforce our
Nation's immigration laws in a way that impacts public safety
and border security. HSI is responsible for investigating and
referring for criminal prosecution crimes related to human
smuggling, trafficking, narcotics and weapons smuggling,
counterproliferation, commercial fraud, child exploitation,
among others.
ICE also relies on a team of nearly 1,000 attorneys to
fulfill its civil and criminal enforcement missions. In
addition, ICE's Office of Professional Responsibility promote
security and the integrity of ICE's workforce through
investigating allegations of misconduct.
Over the past 4 years, ICE has focused its resources on the
rule of individuals who fit within our enforcement priorities.
These priorities include people who are risks to national
security, public safety, such as convicted criminals, recent
illegal border crossers, and those who have struck immigration
controls.
Through this focus, ICE has been able to help ensure our
public safety and seen solid success in enforcing this Nation's
immigration laws. These successes could not be achieved without
the implementation of smart, effective, and efficient policies
and our close working relationship with our DHS partners in
order to meet our goals.
For instance, 44 percent of the ICE detainees in our
custody came from CBP. Our joint efforts are critical to the
Nation's border security. As discussed by ICE's partners in
their statements, individuals who are apprehended while
attempting to unlawfully enter the United States and who
indicate a fear of persecution or torture and an intent to
apply for asylum are detained by ICE until they can present
their claim to a specially trained USCIS asylum officer, who
conducts a detailed screening for potential asylum eligibility.
In December 2009, former Director John Morton issued a
revised directive on the parole of arriving aliens found to
have a credible fear of persecution or torture to ensure
transparent and consistent parole determinations for arriving
aliens seeking protection in the United States. Under this
policy, aliens who arrive in the United States at a port of
entry and who are found to have a credible fear of persecution
or torture are considered for parole.
While our procedures reflect the sound public policy
position of favoring parole in positive credibility of fear
cases, ICE takes its law enforcement responsibilities seriously
and carefully considers each and every parole decision and
balances with a need to protect public safety.
As tactical requirements ebb and flow, we have redoubled
our efforts to be nimble and collaborative as we respond to
changing operational needs. We have put policies and
infrastructure in place to do just that.
For example, ICE targets and investigates the most
dangerous transnational human smuggling organizations through
the Illicit Pathways Attack Strategy, or IPAS. ICE designed
this program to build, balance, integrate its authorities and
resources, both foreign and domestic, in a focused,
comprehensive manner to target, disrupt, and dismantle
transnational organized crime.
In fiscal year 2013 alone, to address the crime of human
smuggling and the additional threat it brings to border
security, ICE arrested approximately 2,700 alien smugglers,
obtained indictments and convictions against 3,600 individuals,
and initiated almost 2,000 smuggling investigations.
In addition to combating transnational human smuggling
organizations, we also target individuals and organizations who
attempt to gain legal status in the United States through
fraudulent means or identity theft. To combat these criminal
threats, ICE has established 19 document and benefit fraud task
forces throughout the U.S.
As a result of these task forces, combined with our
investigative efforts, in fiscal year 2013, we made over 1,500
criminal arrests for immigration fraud, identity theft, an
increase of approximately 20 percent since 2009.
In sum, ICE remains committed to a detention policy that
ensures violent priority aliens remain in custody while
managing limited resources by providing effective alternatives
for nonpriority aliens, commensurate with the risk they
present. Current parole procedures for asylum seekers help ICE
making custody determinations on a case-by-case basis while
focusing both on protecting against threats to public safety
and maintaining control of the Nation's borders.
Thank you for the opportunity to testify, and I look
forward to the questions you may have.
[The joint prepared statement of the U.S. Department of
Homeland Security follows:]
__________
Mr. Goodlatte. Thank you, Mr. Ragsdale.
Ms. Wasem, welcome.
TESTIMONY OF RUTH ELLEN WASEM, SPECIALIST IN IMMIGRATION
POLICY, CONGRESSIONAL RESEARCH SERVICE
Ms. Wasem. Thank you.
Chairman Goodlatte, Ranking Member Conyers, and
distinguished Members of the Judiciary Committee, I am honored
to be testifying this morning on behalf of the Congressional
Research Service.
My summary will provide a backdrop on your basic question:
Is asylum abuse overwhelming our borders? In summation, there
are three avenues--I'll reiterate a bit of what Lori had
testified on--three avenues to receive asylum.
The first avenue is the affirmative, when a foreign
national who is in the United States and not involved in any
removal proceeding applies for asylum with a USCIS immigration
officer. The second route, a defensive application is when a
foreign national is in removal proceedings and asserts a claim
for asylum as a defense to that removal proceeding before an
immigration judge. And the third avenue, which is the principal
topic of this morning's hearing, is the credible fear review,
which is triggered when a foreign national arriving without
proper documentation is placed in expedited removal and
expresses a fear of persecution.
In this last instance, the foreign national is then put in
the second path I mentioned, the defensive path, and goes
before an immigration judge. In all of these instances, to be
eligible for asylum, the foreign national must demonstrate a
well-founded fear of persecution that if returned home, they
will be persecuted based upon one of five characteristics--
race, religion, nationality, membership in a particular social
group, or political opinion.
The credible fear threshold is--means that there is a
significant possibility that the foreign national could
establish eligibility for asylum under one of those five
enumerated grounds I just listed.
These avenues and the standards for asylum are based on a
substantial legislative history, three I want to mention. The
Refugee Act of 1980, which codified the definition from the
Refugee Protocol of 1967 in the Immigration Act.
Secondly, the Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996, which made substantial changes to
the asylum process. And among the most significant of those
changes are the provisions which created expedited removal and
added the credible fear review process. The '96 law also
requires mandatory detention of foreign nationals in expedited
removal while they seek their credible fear determination.
Thirdly, the REAL ID Act of 2005, which established express
standards for proof for asylum seekers.
Now I'm going to turn to some--a brief summary of some of
the statistical trends that I found in preparing this
testimony. Three points. Overall, asylum trends are down.
Credible fear claims are up. And a handful of countries are
driving these increases.
Let's look at Figure 1, where you can see that since the
mid '90's, both the affirmative and the defensive asylum claims
have decreased. There was a slight increase since 2010, but the
numbers have not yet reached the levels of the earlier years.
As you can also see from Figure 1 in my testimony, the
number of asylum cases approved has remained rather steady,
except for an uptick in the early part of this century.
Otherwise, the number of cases approved by both the immigration
judges and the asylum officers and USCIS remains relatively the
same.
This next chart, of course, is where you see the big surge.
Since--in the past year, since 2013, there has been a more than
doubling of individuals expressing credible fear during
expedited removal.
Figure 7 reveals that a handful of countries are driving
this increase. El Salvador, Guatemala, and Honduras, and to a
lesser extent, Mexico, India, and Ecuador. All but India are
Western Hemisphere countries. This trend is similar when you
look at the acceptance of the credible fear cases.
Let me conclude by making this observation. An increase in
asylum or credible fear claims, in and of itself, does not
signify an increase in abuse of the asylum process any more
than a reduction in asylum claims in credible fear would
signify a reduction in abuse. While the current levels of
asylum and credible fear do not yet approach that of two
decades ago, the question for today is whether they have risen
to a level that might strain the system that is designed to
both protect refugees and control our borders.
I'm happy to answer your questions.
[The prepared statement of Ms. Wasem follows:]
__________
Mr. Goodlatte. Thank you, Ms. Wasem.
We will now begin questioning. Mr. Ragsdale, this appears
to be creating a sense of deja vu with regard to many of us.
Under the Department of Homeland Security Secretary Chertoff,
catch and release became notorious. This was the name of the
DHS practice of apprehending non-Mexican aliens along the
southern border, giving them a notice to appear in immigration
court, and releasing them into the United States.
Secretary Chertoff complained that, ``When a non-Mexican is
caught trying to enter the U.S. across the Southwest border
today, he has an 80 percent chance of being released
immediately because we have nowhere to hold him. Of course, he
will be charged as an immigration law violator, and he will
likely fail to appear at his immigration hearings.''
Chertoff then announced a plan to end catch and release
once and for all. He stated that, ``When a large number of
Brazilians began illegally crossing the Southwest border, we
responded in July 2005 with 'Operation Texas Hold 'Em.' We
prioritized the existing space, dedicated bed space, and began
detaining and removing all of the illegal Brazilians we
apprehended.
``The word spread surprisingly swiftly. Within the first 30
days, the operation had already begun to deter illegal border
crossings by Brazilians. In fact, the number of Brazilians
apprehended dropped by 50 percent. After 60 days, the rate of
Brazilian illegal immigration through this sector was down 90
percent, and it is still significantly depressed all across the
border.
``In short, we learned that a concentrated effort of
removal can actually discourage illegal entries by non-Mexicans
on the Southwest border.''
This seems to me to be the solution to the credible fear
crisis. Why doesn't DHS simply utilize Secretary Chertoff's
strategy, eliminate the incentive to make an abuse of credible
fear claim, and end this growing problem?
Mr. Ragsdale. Thank you for the opportunity to answer that
question.
I was actually an attorney in Arizona during that--the
Brazilian initiative, and I was part of the litigation strategy
before the Executive Office for Immigration Review that worked
successfully there. I was also detailed to the department in
2005 and '04 to work on the Secure Border Initiative team with
the former Secretary and came up with that strategy.
Mr. Goodlatte. It seems like it would be a good one. Why
aren't we doing it now?
Mr. Ragsdale. Well, we actually are doing it now. We're
doing it actually in what I'd say is a very smart way. The
difference that we see today is if you look at the ICE
detention capacity, we are making smart decisions to detain
criminal aliens first.
Mr. Goodlatte. Sir, the problem is one not just of criminal
aliens, but of people who are making false claims simply to
enter the United States. And Secretary Chertoff did not make
that distinction. They detained every Brazilian.
We just heard from Ms. Wasem that El Salvador, Guatemala,
and Honduras have the highest numbers of these credible fear
claims, and it would seem to me extremely appropriate to
identify people who are apprehended from those countries making
credible fear claims, of detaining all of them so that there is
not this problem. And word gets back to those countries, as it
did back to Brazil, if you try this, it is not going to work.
That would be the thing that would drive down asylum
claims, as it did. And now they are back up, as you can see,
and growing rather rapidly because there is not an effective
policy dealing with all people making credible fear claims.
Mr. Ragsdale. Well, there is a balance here. We certainly
understand that the use of expedited removal has allowed DHS to
remove more people more quickly than immigration proceedings
before an immigration judge, by far. So it is a very effective
enforcement tool.
The balancing technique----
Mr. Goodlatte. If that is the case, why is it that ICE has
requested fewer beds for detention in 2012 and 2013 than they
have previously?
Mr. Ragsdale. Well, detention is only one piece of the
puzzle. I think from what we've certainly heard from
everybody's testimony today is a need to increase immigration
court capacity, more officers to work the detention process, it
is a wider approach than just detention.
Simply detaining someone with the same hearing capacity
would lead to----
Mr. Goodlatte. Well, we certainly agree there should be
greater hearing capacity. But if you detain people from a
particular country that is showing this rapid spike up, one of
two things are going to happen. You are either going to find
out that there is no uptick in the amount of--in the basis for
credible fear claims. Or you are going to find out that there
is something going on in that country that might justify that.
But by doing that, you are going to find out. If you simply
release them into the interior of the country, as was occurring
back then, it is occurring again today, most of them do not
ever show up for their hearings.
Mr. Ragsdale. Well, we are certainly working, from our
chief counsel offices, with the Executive Office for
Immigration Review to prioritize dockets. We are certainly
doing everything we can to litigate those cases effectively
before the Executive Office for Immigration Review. And when an
immigration judge makes a decision and a removal order is
entered, we are certainly making every effort to remove them.
The answer is simply here it is a blended approach. The
Executive Office for Immigration Review is a big player here,
and the other point I should make is once a credible fear is
found and an NTA is issued, an immigration judge has
jurisdiction to set bond in those cases. So even if an
immigration officer at ICE sets a bond decision, an immigration
judge may redetermine it.
Mr. Goodlatte. My time has expired. I am going to ask you
one more question. Currently, there is a 92 percent grant rate
for credible fear cases. How many of these aliens are
eventually granted asylum by an immigration judge, handled on
the merits?
Mr. Ragsdale. Well, again, Executive Office for Immigration
Review are the right place to get that statistic. If you look
at the----
Mr. Goodlatte. All right. Let me ask you another one. Of
those cases that were denied, how many are removed, and how
many have absconded?
Mr. Ragsdale. Again, the Executive Office for Immigration
Review is----
Mr. Goodlatte. If you don't have these numbers and you are
making policy regarding whether or not you should detain people
when they come in or release them, why don't you have those
numbers? It would seem to be me to be of great interest to ICE
to know what is happening down the line.
And I certainly understand that we can get those numbers
from other places, but ICE should have those numbers and should
be making their policy decisions on that basis. It would
otherwise seem to be a key question in determining whether
credible fear is becoming a superhighway of abuse.
Mr. Ragsdale. Well, I'm aware of the numbers. What I would
suggest to you is those are two different legal standards. The
asylum standard, as we've heard, is a higher standard where the
credible fear standard, because of the very powerful
enforcement tool in expedited removal, is only a significant
likelihood that a successful asylum claim could be made.
So ICE does not look behind a CIS adjudication on a
credible fear. We take that decision and get the person in
front of an immigration judge.
Mr. Goodlatte. On a case-by-case basis, that, of course, is
the appropriate thing to do. But in terms of looking at trends
of abuse along our border, considering that it is ICE attorneys
that handle the EOIR dockets, they should know, your agency
should know, you should know, as someone engaged in formulating
this policy, what is going on so that you can take appropriate
measures to stop it.
That is not happening, and it is disturbing.
My time has expired. I will turn now to the Ranking Member,
the gentleman from Michigan, for his opening question.
Mr. Conyers. Thank you. I appreciate the witness'
testimony.
I wanted to let our Committee know that we have three
asylees that are present at the hearing. A refugee from
Eritrea, Mr. Tesfatsion. A ``Mr. E,'' so fearful of his
relationships with his government in Ethiopia that he will not
use his full name, spent 6 months in detention before he was
released and granted asylum by an American----
Mr. Goodlatte. The Chair would ask the Ranking Member to
suspend for a moment. We have two individuals in the audience
who are standing. There is no basis for doing so. Members of
the audience must behave in an orderly fashion, or else they
will be removed from the hearing room.
And that will serve as your warning that under Rule 11 of
the House rules, the Chairman of the Committee may punish
breaches of decorum and order by censure and exclusion from the
hearing. I apologize to the gentleman for the interruption.
Mr. Johnson. Would the gentleman--point of order?
Mr. Goodlatte. The gentleman will state his point of order.
Mr. Johnson. Do the rules prohibit a spectator from
standing up as--and not saying anything, not making any
gestures, no signs. Just standing up when they were recognized
by a Member during that Member's presentation? Is that a breach
of decorum under the rules?
Mr. Goodlatte. It is not if they are subsequently
recognized by the Ranking Member.
The gentleman may proceed.
Mr. Johnson. Well, if I may, Mr. Chairman? Didn't the two
gentlemen who stood, weren't they recognized?
Mr. Goodlatte. We are about to find that out from the
Ranking Member. And the gentleman may proceed.
Mr. Johnson. But it is okay. It is okay for them, if
recognized by a Member here, to stand up?
Mr. Goodlatte. For a brief time, that is correct.
Mr. Johnson. It would not be a breach of decorum?
Mr. Goodlatte. The Ranking Member will proceed.
Mr. Conyers. Thank you.
Mr. Johnson. Thank you.
Mr. Conyers. Mr. Chairman, I hope this will not come out of
my 5 minutes. I appreciate the gentleman greatly for that.
But I just wanted to mention them. There is nothing
profound about them standing up or not. But I wanted to mention
that they are here. Mr. Tesfatsion from Eritrea, and the
Ethiopian refugee who can't use his full name, and I don't want
him to stand up. Pedro from Equatorial Guinea. And I will put
something about them--I ask unanimous consent to put a small
statement about each of the three----
Mr. Goodlatte. Without objection, they will be made a part
of the record.
[The information referred to follows:]
----------
Mr. Conyers. And I thank the Chairman, and I thank my
friend from Georgia as well.
I wanted to concentrate on the whole question of whether
there are instances in which a person, Mr. Ragsdale, who
demonstrated credible fear, established her identity and proved
that she poses neither a danger to the community nor risk of
flight would be granted parole conditioned on the posting of a
bond.
Mr. Ragsdale. First, I should probably clarify the policy
that we are talking about from former Director Morton in 2009
applies only to what are called arriving aliens. So those are
aliens that arrive at a port of entry and are considered for
parole. Those folks would either be detained or could be
paroled by an immigration officer.
Folks who arrive between a port of entry and are found to
have a credible fear are considered for release under a
different section of the Immigration and Nationality Act, and
those folks could, in fact, be considered for a bond, both by
ICE and by an immigration judge.
Mr. Conyers. Thank you very much.
Are there people who remain in your custody after a grant
of parole because they are unable to post such a bond?
Mr. Ragsdale. If we've determined or an immigration judge
has determined that a particular number of a bond is
appropriate to guarantee appearance, you know, obviously, that
is subject to the decision from either the judge or from the
field office director.
Mr. Conyers. Thank you.
And now, last, are you familiar with any cases of persons
who established credible fear but were denied parole and were
ultimately granted asylum after spending months in your
custody?
Mr. Ragsdale. Again, every case on detention is made on the
individual facts.
Mr. Conyers. Sure.
Mr. Ragsdale. So there may be a case that ICE did detain
someone while the process went on, and that may be totally
appropriate. The decision to grant protection is--either rests
with USCIS or an immigration judge, not with ICE.
Mr. Conyers. All right. Dr. Wasem, we appreciate your being
with us today. As you know, the bulk of the credible fear
claims that were made in fiscal 2012 and 2013 were made by
people from El Salvador, Honduras, and Guatemala. In your
testimony, you looked at some of the apprehension and credible
fear data pertaining to these people and suggest that the
latest increase may represent a different pattern in migration.
Could you expand on that a bit?
Ms. Wasem. I'd be happy to, Ranking Member Conyers.
In the written testimony, I took a look at apprehensions as
well to try to better tease out what is going on with this
uptick. And I observed that in 2005, which is on the chart,
there were very high apprehensions as well of individuals from
Guatemala and El Salvador.
But we did not have the same level of credible fear
requests then. And so, it--and then the patterns went down
again, as Figure 9 in my testimony shows. So, clearly,
something different is happening. I have subsequently also been
able to take a look at some additional credible fear data by
country in terms of the rate of being approved or not approved,
but passing that first credible fear----
Mr. Conyers. What is that something different that may be
happening?
Ms. Wasem. It could be--account for several things. The
percentage of credible fear found for Salvadorans and
Guatemalans and Hondurans has gone up since 2008. Even when
you--when you just look at the percentage of people asking,
there has been change in the number who are being passed on as
in that review process.
So, earlier, a lower percentage of, say, Salvadorans, it
was closer to 40 percent in 2008, were determined to meet a
significant possibility. So that first level of review that
USCIS is doing is showing a higher percentage. So something is
going on. It could be in-country conditions. It could be things
happening in Mexico. It could be our policy changes.
It could be a number of different things, but it's not--
everything isn't moving in the same direction with the other
patterns. There is some interactive effects----
Mr. Conyers. Okay.
Ms. Wasem [continuing]. That warrant further analysis.
Mr. Conyers. Thank you very much.
Director Ragsdale, a number of background and security
checks must be completed before a credible fear interview can
take place, of course, and I understand that many of those same
checks are performed when ICE takes custody of the person and
before the parole determination is made.
Can you describe some of these checks that might be
revealed? And if ICE encounters information, what action does
ICE typically take, and would you have to go to court to
prevent a person who appeared to be a risk before you can keep
them from getting out of your jurisdiction?
Mr. Ragsdale. So we sort of come to this process sort of
after both our partners in Customs and Border Protection and
Citizenship and Immigration Services has run a lot of those
same checks. Those are obviously criminal history checks. They
are checks related to terrorism screening databases. They're
based on biometrics. They're based on biographics. So we sit
here with a very unified approach on how we do those record
checks.
If someone came to a port of entry, and there was
derogatory information, and they were an arriving alien, we
would make the decision whether or not to keep that person in
our custody. If the person is found to have a credible fear and
has arrived between a port of entry, we would set an
appropriate bond or no bond, and then that person would be able
to seek redetermination from an immigration judge.
Mr. Conyers. Now last question, sir. Director Scialabba, is
there any circumstances under which you sometimes feel you
can't get the information that you need, and what are your
alternative recourses?
Ms. Scialabba. No, I wouldn't say there is any
circumstances where we feel like we can't get information. We
actually receive information from CBP, as well as ICE, when
we're doing credible fear interviews. We also do the interview.
So we're actually talking to the person that is in front of us,
finding out what their story is, whether they have any kind of
history that may indicate there is any kind of criminal
activity involved and those sorts of things.
No. I don't feel like we don't get the information we need.
I think there may be circumstances sometimes where there may be
an ongoing investigation somewhere, and that information has
not yet been put into databases that we check.
And if that's the situation, then we don't really have
access to that information unless one of our colleagues from
CBP or ICE may have that information and provide that to us.
Mr. Conyers. Thank you.
Thank you, Mr. Chairman.
Mr. Goodlatte. The Chair recognizes the gentleman from
North Carolina, Mr. Coble, for 5 minutes.
Mr. Coble. Thank you, Mr. Chairman.
Good to have you witnesses with us today.
Ms. Scialabba, DHS indicated 97.8 percent of Indian
claimants found--were found to have a credible fear of
persecution. I am told that there is little political turmoil
in India. Could this be irregular, or do you think those
figures are correct?
Ms. Scialabba. Sir, I believe the figures are correct.
Credible fear really is a screening process. They aren't all
political persecution claims that are made. Sometimes they're
related to particular social groups. It could be related to
inheritance, caste issues that are in India. So they're not all
political, but the percentage is correct.
Mr. Coble. And I am furthermore told that part of the
problems plaguing India now result from socioeconomic reforms.
Could it be that many of the Indians are fleeing poverty in
lieu of persecution?
Ms. Scialabba. It's possible--I mean, that is a
possibility. The screening process that we do, the credible
fear screening process has a fairly low standard. It's just a
screening process to determine whether or not there's a
significant probability that an immigration judge may find
asylum.
When the person goes before the immigration judge, that's
when really the full panoply of issues and the story that the
person may have is actually determined, and at that point, we
also have a nice trial attorney who will cross-examine the
person and get more information other than what we do in terms
of this credible fear screening.
Mr. Coble. I thank you for that. Well, what sort of
training do USCIS officers receive on country conditions?
Ms. Scialabba. Our officers have extensive training in
terms of their initial training for asylum. They also have
extensive training on credibility determinations.
For country conditions, our officers have 4 hours a week,
where they are provided additional information. So if somebody
is handling particular cases from a particular country, they
will receive information on those country conditions. We also
have access to the State Department documents on country
conditions as well.
Mr. Coble. I thank you for that.
Mr. Fisher, what do you think might be the reasons for the
dramatic increase in applicants arriving at ports of entry,
claiming credible fear, A? And B, how do you think DHS could
best deal with this issue?
Mr. Fisher. Thank you for the question.
I think, first, those that are coming to the ports of entry
and in between the ports of entry, for that matter, we need
more information. We need more requests, specific requests for
information during the initial encounters that CBP officers
make at the port of entry, and Border Patrol agents make
between the ports of entry to fill some of those intelligence
gaps right now. Generally, what happens when the credible fear
claim is made within our custody, we generally turn that over
to ICE ERO and then on to CIS for their interview process.
So we have to be able to get more information to be real
specific in terms of any potential vulnerabilities or the
extent to which it may be exploited as it relates to our
security risk.
Mr. Coble. I thank you for that, Mr. Fisher. Let me ask you
another question.
Does the spike in credible fear claims give rise to a
particularized concern relating to our national security, and
is it well documented that some of the illegal aliens
arriving--let me get this question--arriving at our border and
claiming credible fear or persecution or have been affiliated
with criminal enterprises, such as drug cartels, in their home
country?
What is being done to address these concerns?
Mr. Fisher. Thank you again for that question. Very
insightful, sir.
I would tell you that generally when we see a spike in any
activity, any anomaly, we first set the conditions that, one,
it is, in fact, a risk at some level until proven otherwise. So
we take that affirmative step.
And then, two, we work with the intelligence community,
with our partners within law enforcement to make sure that
we're gathering all available information. Not just those that
are contained in the databases so much, but as mentioned on the
panel, investigative files. We want to figure out who is
pending investigations, who's open investigations with one of
our partners, whether it's the FBI or the DEA.
And information is the key for us. The more we're able to
get information about these illicit networks, the better we are
to be able to assess risk.
Mr. Coble. I thank you, Mr. Fisher.
Mr. Chairman, I see that my amber light appears. So I will
yield back.
Mr. Goodlatte. The Chair thanks the gentleman and
recognizes the gentleman from Virginia, Mr. Scott, for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Ms. Wasem, if someone files a claim, how do you know before
you have heard it whether it is a bona fide claim or a
fraudulent claim?
Ms. Wasem. If someone files a claim before you've heard it?
Mr. Scott. Right. You can't know. Is that right?
Ms. Wasem. That's--the credible fear standard, usually the
final determination is when you go before a judge or an asylum
officer, you have to provide evidence. This is some of the
stuff that was in the REAL ID Act in 2005 was establishing what
evidence is necessary to make that determination.
So the credible fear screening, if that's--is--is a first
cut of whether you have a significant possibility of being
eligible under asylum, but it's not a complete review of the
process.
Mr. Scott. Now some people will win, and some people will
lose. What portion of the claims that are lost are differences
of opinion, and how many are outright fraud?
Ms. Wasem. I have no idea.
Mr. Scott. If you--I think you mentioned in the handful of
the countries that are driving the numbers, the portion of the
claims that are actually bona fide is high or low?
Ms. Wasem. Oh, let me be more clear in terms of
particularly what I had said earlier with Ranking Member
Conyers' question. First, you have there has been an increase
in the first pass at credible fear reviews, and then they go to
the immigration judges.
Mr. Scott. How long does that take?
Ms. Wasem. And the judges then make the final
determination. They're----
Mr. Scott. How long does that--how long does that take?
Ms. Wasem. I'm sorry?
Mr. Scott. How long does that take?
Ms. Wasem. Oh, it varies from where you're at in the
country and the system. But it can take some time to get a
court date, and I think several people have mentioned the
delays in getting a court date for that. But the individual,
when they--what I've observed with the defensive cases, and
this would be Figure 5 in my written testimony, is you can see
there has been an increase in Salvadorans, Guatemalans, and
Indians, for example, in getting actual approvals from the
Executive Office immigration judges.
But it's still a very small percent. We're talking 2
percent of all the approvals are from these countries, which
have begun to surge. And I expect we won't know for another
year or two, as those cases work through, whether--in order to
be able to even evaluate the credible fear review process.
Mr. Scott. What kind of evidence is presented? Is this an
adversarial process where both sides are represented? Or does
the person just----
Ms. Wasem. When you go before the judges, yes. The credible
fear review is not.
Mr. Scott. Who is on the other side?
Ms. Wasem. In credible fear, it's the individuals from the
USCIS asylum office. It's an asylum officer for credible fear.
By the time you get before an immigration judge, it's a formal
proceeding, and it's part of removal.
Mr. Scott. If you win before a judge, is that a permanent
determination or for a specific time?
Ms. Wasem. If you are granted asylum, any grant of asylum,
whether it's done by an immigration judge or by a USCIS asylum
officer, puts you in a conditional status, and after a year,
you can become a legal permanent resident of the United States.
Mr. Scott. Okay.
Ms. Wasem. So that final determination is a significant
one.
Mr. Scott. I yield the balance of my time to the gentlelady
from California.
Ms. Lofgren. Thank you.
I--I have been crunching the numbers, and I think it is
important that as we proceed that it be fact based, not
anecdotally based. And taking a look, Mr. Ragsdale, at the
numbers that we got prior to the hearing, I am correct, I
believe, that the parole directive applies only to people who
presented themselves at a port of entry. And it does not apply
to the three-quarters of the people who are found to have
credible fear after being apprehended by the Border Patrol
between the ports of entry.
So when you take a look at the parole directive, it
actually establishes an affirmative obligation on ICE to
consider parole for all arriving aliens who demonstrate a
credible fear of persecution or torture. That is correct, isn't
it?
Mr. Ragsdale. That is correct.
Ms. Lofgren. So if you look at the data, it seems to me
that in the year since the parole directive was implemented,
ICE has only made parole determinations for maybe two-thirds of
the people who were granted credible fear after arriving at a
port of entry. And if you go through the data, and maybe we can
do this after the hearing, it looks to me that from the data
you have given us, that parole is granted in about 75 percent
of the cases.
And since ICE may only be considering parole for two-thirds
of the people eligible, the grant rate is actually closer to 50
percent. And since 75 percent of the people who claim credible
fear are not even eligible for parole under the directive
because they were apprehended by Border Patrol, the actual
percentage of people found to have a credible fear who received
a grant of parole is like 12 or 13 percent.
Mr. Ragsdale. That's right. So I can just put that in a
little bit larger context. Roughly, in the last year, we've had
about 220,000 book-ins, we call them, from CBP. Only about
18,000 of those were from the ports of entry. Only about 6,000
of those are folks that have claimed credible fear.
So the number of folks compared to people apprehended
between the ports of entry, as opposed to at the ports of
entry, it is a fraction.
Ms. Lofgren. Mr. Scott's time has expired. So I will get my
own.
But I would like to ask unanimous consent to put the
following statements into the record from the Center for
Victims of Torture, the Evangelical Immigration Table, Human
Rights First, Immigration Equality, Lutheran Immigration and
Refugee Services, the Hebrew Immigrant Aid Society, the U.S.
Commission on International Religious Freedom, the National
Immigration Forum, the CAIR Coalition, the National Immigrant
Justice Center, the American Immigration Lawyers Association, a
letter signed by 118 national, State, and local organizations
and 27 legal experts underscoring the importance of the asylum,
the U.S. Conference of Catholic Bishops, and the United Nations
High Commissioner for Refugees.
Mr. Goodlatte. Without objection, they will be made a part
of the record.
[The information referred to follows:]
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Mr. Goodlatte. The Chair now recognizes the gentleman from
Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I thank the witnesses for your testimony.
First, I would like to turn to Mr. Ragsdale and follow up
on a question, and that is that how many who claim credible
fear fail to appear before an immigration judge? I know you
testified that you are aware of that number. What is it?
Mr. Ragsdale. I am. It's a blended number, which is why
it's difficult to calculate. In other words, there are not
year-to-year distinct datasets.
So, in other words, someone that arrives this year gets a
hearing in front of an immigration judge, and it varies in city
to city based on the docket, may not see an immigration judge
for a final decision or failure to appear for their hearing
until years later. So that data is, in fact, maintained by the
Executive Office for Immigration Review.
Mr. King. When you draw a conclusion as to that data that
you are aware of, what is that conclusion that you draw?
Mr. Ragsdale. It is somewhere around 20 percent.
Mr. King. Twenty percent fail to appear?
Mr. Ragsdale. Correct.
Mr. King. That is interesting. I remember John Ashcroft
testifying before this Committee on a broader group of those
who failed to appear, and his number that day some years ago
was 84 percent are alien absconders. And so, that is a number I
will want to examine more deeply. I appreciate your response.
I would like to go with Mr. Fisher and ask you are your
apprehensions at the--well, I want to ask some questions about
drug interdiction at the border. Are those numbers up or down
over the last, say, 5 years in your experience?
Mr. Fisher. Over the last 5 years, depending upon marijuana
versus cocaine, methamphetamines, we've seen up and down in
both of those categories.
Mr. King. Okay. Well, let me just point this to marijuana
itself. Are those numbers up or down on balance over the last 5
years?
Mr. Fisher. They are up, sir.
Mr. King. Okay. And generally speaking, if you had to talk
about the aggregate of drugs, are there more or less drugs
coming across the border?
Mr. Fisher. I think if you compared previous 10 years
versus the last 5 years, generally those numbers would be up as
well.
Mr. King. Still up. And the value of the drugs coming
across the border, up or down?
Mr. Fisher. Um, probably up as well, yes.
Mr. King. Okay. The value of the drugs are up. The
transport of drugs across the border are up. What about the
tragic deaths in the desert of those who attempt to come into
the United States and don't make it through to beyond the
desert, Arizona and Texas in particular. Are those numbers up
or down?
Mr. Fisher. Recently, over the last couple of years, those
numbers are down.
Mr. King. They are down.
Mr. Fisher. Yes, sir.
Mr. King. How many would you say are lost in the desert?
What would that number be over the last year?
Mr. Fisher. I don't have the specific numbers with me, sir,
but I'm happy to get that to you after the hearing.
Mr. King. It seems to me that I have seen some numbers that
showed us desert numbers in around 250 that now over the last
year or so have grown to perhaps as high as 450. Does that
comport with your understanding?
Mr. Fisher. That sounds about ballpark, sir. I'd have to
take a look at the actual end of year report for '13 and make--
--
Mr. King. To me, then, those numbers would be up. I ask
these questions this way because if there is equal or more
drugs coming across the border and if the value of those
drugs--or the volume of those drugs essentially are equal or
more, if there are fewer people that are losing their lives in
the desert trying to come into the United States, then I would
just ask this question. Are your apprehensions at the border up
or down, say, over the last 5 years?
Mr. Fisher. Over the last 5 years, again, if you're looking
at the comparative back in the '90's, they are down. If you'll
look just over the last 2 years, fiscal year 2012 and 2013, and
do the comparative, we're slightly up.
So, for instance, if you're comparing fiscal year 2012
apprehensions with fiscal year 2013 apprehensions, we were up
approximately 16 percent end of last year.
Mr. King. Okay. I am looking at numbers here that show
2004, 1,164,000 apprehensions at the border; '05, 1,189,000;
and in '06, 1,089,000. '07, it went to 876,000. And then it
began to go down, according to this Border Patrol record I
have, from 723,000 in '08 to 556,000 in '09, 463,000 in '10,
340,000 in '11, and 364,000 in '12.
That would tell me that approximately one-third of the peak
apprehensions between '04 and '05 are what actually the product
of a large Border Patrol that we have now, roughly the same
amount of drugs being interdicted, no reduction that I can see
in the loss of lives in the desert.
So I am troubled by the overall picture of this, and I
would just make this point. It seems as though there is a
decision made by this Administration that they are going to
target the resources. It is a decision to target the resources
the most effectively as possible at those persons who pose the
most risk to Americans. That is, I think, consistently the
policy that we have heard from this Administration.
However, I am wondering what that picture would have been
if we would have had a Rudy Giuliani broken window philosophy,
and we had had people come from the Administration before this
Committee and the Appropriations Committee and say this is what
we need for resources to fully enforce the law, to fully
control the border, to fully have enough beds to adjudicate, to
send a message to everyone who is in this universe of 35,000 or
1-plus million that we are going to enforce the law.
It seems to me that would be the most effective thing that
we can do, and it looks to me like we are having less
interdictions at the border, and that might indicate less
aggressiveness at the border if we are picking up as many drugs
and if we are losing as many or more people in the desert.
That is my overall view on this. I appreciate your
testimony, yield back the balance of my time.
Mr. Goodlatte. The Chair thanks the gentleman and
recognizes the gentlewoman from California, Ms. Lofgren, for 5
minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
I think it is important, in addition to being fact-driven
on this, that we touch base also with the reason why we have an
asylum system and why we have a refugee program. And that is
because America is a beacon of hope for the rest of the world.
I actually--in addition to being Ranking Member on the
Immigration Subcommittee, I am one of the bipartisan co-chairs
of the Refugee Caucus here in the House of Representatives, co-
chaired by our colleague Chris Smith from New Jersey, who is
well recognized as a human rights activist. It is important
that we have--that we continue to be that beacon of freedom and
that we should not lose sight of that.
I think we ought to have some concern about this fact. If
you come and escape torture, you make your claim of asylum, the
first thing that happens to you is you get thrown in jail in
the United States and you stay there usually for a very long
time.
We have some examples here, and I will just mention one. A
Tibetan man who was detained and tortured by the Chinese
because of his advocacy for freedom in Tibet. Detained for
about a year in our custody when he made his asylum plea.
A Baptist woman from Burma who was denied parole, even
though she had proof of her identity, and was paroled only
after 25 months in detention.
A man from Uganda who was arrested and tortured by police
because of his sexual orientation, who was held in detention
for 1 year before he was granted political asylum.
An Afghani man who came to the United States after being
targeted by the Taliban as a U.S. loyalist because he provided
translation services for our soldiers in Afghanistan. Despite
establishing a credible fear of prosecution, he was detained
for more than a year before he was granted asylum. So I think
we have some soul searching to do on how we treat legitimate
asylum seekers in this country.
I think we also need to have these facts in place. I mean,
there have been assertions that the credible fear process
somehow confers some kind of protective status on the
undocumented, and that is not true. I mean, you are subject to
criminal investigation and prosecution if that is warranted.
That somehow Government officials and counterterrorism agencies
don't have access to the asylum information. That is not
correct. That individuals who are security threats or flight
risks are eligible for release from detention. That is not so.
That somehow extensive background and security checks aren't
required for this credible fear determination. And finally,
that there is some basis for asserting that these credible fear
claims are fraudulent. We don't even know that because they
haven't been adjudicated before the courts at this time.
In terms of, you know, no one believes it is proper for a
person not to appear in court. I do not. None of the Members
believe that. But I think it is important to take a look at the
actual data, and if you take a look at the reports we have
gotten from the Department of Justice, the number of failure to
appear is going down. The percentage is going down.
In 2008, the FTA rate was 10.3 percent, and in 2009, it was
6.5 percent. In fiscal year 2010 and 2012, it was 5 percent. So
is 5 percent acceptable? No. But it is on the right trajectory
on what is happening. I think that we ought to keep that in
mind.
Finally, I do think that the--you know, there are lies,
darned lies, and statistics. But we need to take a look at
whether we are comparing apples to apples. And when you take a
look, and maybe I could ask you, as Deputy Director of USCIS,
the numbers, the 90 and 92 percent that we keep hearing about,
it seems to me that that may not be accurate because we are not
counting the withdrawn applications, and there are plenty--
there are people--I have seen cases where people who are
actually probably valid asylees are so distressed by prolonged
detention that they give up and go back to where they are from.
So it looks to me that it is more on the nature of about 80
percent. Would you say that is correct?
Mr. Goodlatte. The time of the gentlewoman has expired.
Without objection, Ms. Scialabba will have 1 minute to respond
to the question.
Ms. Scialabba. That is correct. Ninety-two percent are the
number of credible fear interviews we do. However, there are a
percentage of those people who will withdraw at some point, and
I think the--I think the actual credible fear interviews that
we do that go forward is about 84 percent.
We are tracking the withdrawals now. We are keeping those
statistics separate.
Ms. Lofgren. I would just note that I think--Mr. Chairman,
I would like to ask unanimous consent to put into the record a
letter from the Department of Justice to our colleague, Mr.
Chaffetz, that has some of the statistics that I have referred
to here.
Mr. Goodlatte. Without objection, that will be made a part
of the record.
[The information referred to follows:]
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Mr. Goodlatte. And I will also ask unanimous consent to
make a part of the record information provided to the Committee
that shows that since 1996, nearly 800,000 nondetained aliens
in removal proceedings simply became fugitives and did not
report for future hearings.*
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*The information referred to is not reprinted in this hearing
record but can be accessed at http://www.cis.org/Immigration-Courts.
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The Chair now recognizes the gentleman from Arizona, Mr.
Franks, for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I was moved by some of the comments in your
opening statement that pointed out that the United States has
always been a very compassionate country that is committed to
trying to be a place of refuge and relief for those that are
fleeing genuine persecution, those that are genuinely in danger
in their countries for a variety of reasons. And I think that
is laudable and notable, and that is really the centerpiece of
why we are all here today is that we are discussing this notion
of making sure that America continues to be that last best
hope, that bastion of freedom.
But I will suggest to you that if, indeed, we allow that
process to be abused, if we do not scrutinize between those who
are genuinely persecuted and genuinely trying to seek a way to
escape deadly or lethal persecution from those who would use it
as strictly a facade to gain entrance into this country, then
those that we disserve the most are those that are genuinely
persecuted. Because that process inevitably leads to people
that are persecuted not being able to find any sort of refuge.
And I would really want to emphasize that because I am
afraid, Mr. Chairman, that the process is being abused. And Mr.
Fisher, I would just point to you. From your testimony, it
appears that you do not have any conclusions why we are seeing
now 36,000 credible fear applications in a single year, which
is up from just 5,000 in 2008.
And perhaps it looks to me like the word has gotten out
that credible fear claims might be a good way to get into the
country, and not only is the abuse of credible fear process
weakening our borders. It weakens the purpose of having these
exceptions, and it increases the chances of those who are truly
persecuted and not being able to escape. But it also appears
that the Administration may be engaged in a sort of a wholesale
effort to degrade our border security.
Shawn Moran, the vice president of the National Border
Patrol Council, the Border Patrol union, states that the Border
Patrol management has begun the practice of ordering Border
Patrol agents to stand down and cease pursuing drug smugglers,
human smugglers and traffickers, and illegal aliens. He has
warned that this process could lead to illegal aliens with
possible terrorist connections entering the country.
And so, I guess my first question, Mr. Fisher, is to you.
Has any such stand-down policy or any effort made to try to
diminish the practice of trying to diminish our law enforcement
there at our border, has any stand-down policy like that been
issued to Border Patrol agents?
And if not, what do you think the Border Patrol Council or
the Border Patrol unions are really talking about here?
Mr. Fisher. Absolutely not, to your question, Congressman.
And I don't know the motives and the context by which the union
member would have made those statements.
Mr. Franks. So they are just--this is just a false claim
that there is no such indication either on the basis of budget
concerns or on the basis of some other motivation that these
efforts should be diminished or not as intense as before?
Mr. Fisher. I have not written any directive nor have I
signed any policy which would increase the risk to this country
as it relates to our ability to continue to go after people
that would do harm to this country once they've made an entry.
Mr. Franks. And you know of no one on any level that has
participated in any way in that regard. Correct?
Mr. Fisher. I'm talking, sir, in terms of my direct command
and control with the Border Patrol agents. That is not my
policy, nor have I signed any directives----
Mr. Franks. Any oral comments to that effect to anyone? Any
oral or verbal statements to the agency in general or the
people that are kind of on the ground in general to that
effect?
Mr. Fisher. Sir, not that I'm aware of.
Mr. Franks. Well, that is a good answer.
Well, I guess, Mr. Chairman, I would just revert then to my
original point that, indeed, if you do not know why--and you
have said earlier, the other gentleman, that you have these
numbers, but you haven't told them to us--why we are seeing
this enormous increase in credible danger claims. And if you do
not know why that is the case, then I would just suggest to you
that if our goal here is to serve the cause of human freedom,
we have two bases.
We have to make sure that the flagship of human freedom is
not weakened somehow by the process, and that being America.
And secondly, we have to make sure that we know the difference
between those who are truly, lethally persecuted and those who
are not. And I would suggest to you that the numbers indicate
that we are missing that mark pretty profoundly.
And with that, Mr. Chairman, I would yield back.
Mr. Goodlatte. The Chair thanks the gentleman and
recognizes the gentlewoman from Texas, Ms. Jackson Lee, for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, thank you for holding this
hearing. I think whenever we can reinforce the truth, it is a
very crucial hearing.
I thank the Ranking Member as well for his cooperation.
And I think the Chairman knows that as I start every
hearing that addresses the ladies and gentlemen that are before
us and we get into this area, I always offer that a scheme, a
structure, such as comprehensive immigration reform truly will
be part of the matrix that will help us move toward an
effective structure that all of you can abide by.
Let me thank you for your service as well, even in light of
our still struggling with the final results of comprehensive
immigration reform.
Let me also say that this issue of asylum addresses the
most vulnerable people in the world, people who are coming,
fleeing persecution, some leaving family members behind, some
escaping barely with their lives, and looking over their
shoulder and seeing the bloodshed of those family members or
friends or communities left behind. And I truly believe in the
message of the Statue of Liberty, which ultimately had the
welcoming of those who were coming to this country for
opportunity. But it still stands as a very important symbol for
those who are fleeing persecution.
And I might just to put in the record a list of moments
when the United States needed to open its doors mostly, and in
some instances, we did. In some, we did not. I start with the
1930's. World War II created a massive refugee crisis, and U.S.
immigration policy restricts the acceptance of Jewish refugees
fleeing Nazi persecution. I think we would have wanted to
reconsider our interpretation of what we did in that instance.
In 1948, the United States increases immigration quotas,
accepting large numbers of refugees and displaced persons from
Europe. Some many, many years later after, of course, the
horrific, horrific, catastrophic Holocaust.
Then, of course, the 1990's, the residual impact of civil
war in Central America continues the Central American migration
to the United States. We can document the violence during that
time.
2005, Iraqis associated with the United States Government
faced political persecution during the conflict in Iraq. The
United States slowly began accepting Iraqi refugees in larger
numbers.
And there were other times as well. And so, I would like
this hearing not to move away from the idea of what asylum is
all about, and as a member of the U.S. Congressional Human
Rights Commission, I can tell you that we face these crises all
the time.
So I quickly want to ask questions of just an overall
question that when we look at the landscape of asylum seekers
that may utilize credible fear, and we take the number 100
percent in terms of looking at the world, not only South and
Central America, let me ask all of you, is there an epidemic of
people using credible fear not legitimately?
So would you say 70 percent of the people coming use
credible fear, and it is not true? Ms. Scialabba?
Ms. Scialabba. Thank you, Congresswoman.
Ms. Jackson Lee. And I just need a yes or no answer. This
is just a--would you say that the dominant number of people
coming in use credible fear inappropriately?
Ms. Scialabba. I don't think that's the purpose of the
credible fear interview. But, no, I wouldn't say that they're
using it inappropriately.
Ms. Jackson Lee. Mr. Ragsdale?
Mr. Ragsdale. It's a little outside of my area of
expertise, but I don't think the numbers would support that
conclusion.
Ms. Jackson Lee. Mr. Fisher?
Mr. Fisher. Congresswoman, it is out of my area of
expertise, and I could not make a judgment at that point.
Ms. Wasem. Congresswoman, given that the--many of the
uptick is still in the court system, I don't think we can
answer that question with any definitive data.
Ms. Jackson Lee. Well, I think that--let me just--well, you
are in the GAO. The question is generically whether or not if
you took 100 percent of those seeking asylum, and they raised--
they raise it in the courtroom, they raise the credible fear.
Is the credible fear being offered by that asylum seeker, is
100 percent of the people using it inappropriately? I think
that is a----
Ms. Wasem. Well, obviously, there are--excuse me. There is
a portion of the individuals who have already worked through
the credible fear and then the defensive process who ultimately
obtained asylum. We don't know exactly how many there are, but
that data suggests that not all of them are abusing the system
or the courts would not have granted them asylum.
Ms. Jackson Lee. I think that is the basic point that we
want to emphasize that we don't have an epidemic of abuse that
can be documented. If you can't document the other way, you
cannot document that there is an epidemic of abuse.
If I can just get an additional second for one question,
Mr. Chairman? I would like to again go to the purpose of the
credible fear process is not to identify meritorious asylum
claims or to weed out claims that might not succeed before the
immigration court. Isn't the credible fear process designed to
weed out clearly non-meritorious, frivolous cases?
Isn't it to also, in light of the limited purpose that the
credible fear process is meant to serve, when we jeopardize the
lives of bona fide asylum seekers if we were to raise the
standard, that's a very important point?
And if you would answer that, Ms. Scialabba?
Mr. Goodlatte. The gentlewoman's time has expired, but
without objection, the gentlewoman----
Ms. Jackson Lee. Thank you.
Mr. Goodlatte. - will be given 1 minute to answer the
question.
Ms. Jackson Lee. So raising the standard, would that be a
problem? And then, isn't the credible fear process designed to
weed out clearly non-meritorious, frivolous cases, and wouldn't
it be a problem to raise the standards, hurting other people
just to try and weed out what may be an undocumented fear?
Ms. Scialabba. I think the standard was carefully thought
out when the legislation was passed. There is a lower standard
that's manifestly unfounded that we do not use. We use the
standard of significant possibility because we don't want to
take the risk that somebody who has a legitimate claim to
asylum or torture--we also look at the Convention against
Torture as well as asylum--would be returned to their country
and be persecuted or tortured.
Ms. Jackson Lee. So you see no reason to raise the
standard? That is what I am trying to--to make it harder?
Ms. Scialabba. No, I--I think that standard was carefully
thought through when it was enacted.
Mr. Goodlatte. The time of the gentlewoman has expired. The
Chair recognizes the gentleman from Texas, Mr. Gohmert, for 5
minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
Ms. Scialabba and Mr. Ragsdale, do you, as Deputy
Directors, take an oath before you assume your office?
Mr. Ragsdale. I took an oath the day I became a Federal
employee.
Mr. Gohmert. But as Deputy Director, did you take an oath
to become--to assume that role?
Mr. Ragsdale. I didn't take another oath. In other words, I
took the oath that I accepted when I joined Federal service.
Mr. Gohmert. Yes. Ms. Scialabba?
Ms. Scialabba. I also took an oath when I joined Federal
service. I've renewed that oath several times. I don't think it
was necessary. But--because I've been in Federal service my
entire career, but I've renewed it several times, yes.
Mr. Gohmert. Okay, and that is an oath to follow the
Constitution, correct, protect and defend? Correct?
Mr. Ragsdale. Yes.
Mr. Gohmert. And you understand under Article I, Section 8
that the Congress is given the power to make the law when it
comes to issues regarding immigration, naturalization, those
type of things. Correct?
Ms. Scialabba. That's correct.
Mr. Ragsdale. Yes.
Mr. Gohmert. Okay. Thank you.
Because I have before me, and I will read for you, it is
from the Uniform--or from the United States Code, Volume 8,
Section 1225, and this is under the Section B, entitled Asylum
Interviews. And under subparagraph (ii), Referral of Certain
Aliens, it says, ``If the officer determines at the time of the
interview that an alien has a credible fear of persecution
within the meaning of clause (v), the alien shall be detained
for further consideration of the application for asylum.''
I don't see anything other than ``shall'' and ``be'' as the
verb there, ``shall be detained,'' the verbal clause there as
to what actions can be taken. So since the Congress established
that someone shall be detained, what law that Congress passed
in accordance with Article I, Section 8 does--do your services
rely on to avoid, and particularly you, Mr. Ragsdale, do you
rely on to not follow the law that says ``shall be detained''?
What law can you cite for me that avoids that ``shall be
detained'' mandatory language?
Mr. Ragsdale. So I am familiar with that section of the
act. It's my understanding--and again, I certainly rely on my
lawyers to tell me this. We do detain people during the
credible fear process to find out whether or not our sister
agency makes a finding that there is, in fact, a credible fear.
I think this also has to be put into some context here.
Mr. Gohmert. Well, that is not my question about context. I
am asking about the law because I am real concerned about it.
We had people sitting right where you are who talked about this
Administration making up its own laws, refusing to follow the
Constitution, refusing to follow their oath in enforcing the
law and faithfully executing the law. So I am trying to find
out when you take action, what law are you following?
Could it be some memo, a memo from ICE Director John Morton
that says, hey, you know, if they establish their identity,
pose no flight risk or danger, have a credible fear, you know,
go ahead and release them? Is that what you rely on, Director
Morton's memo to overcome United States law and the
Constitution?
Mr. Ragsdale. Well, as the ranking career person, right, I
follow the agency, the Administration's policy. I will say
there's another section of the Immigration and Nationality Act
from 1952 that does, in fact, recognize parole in certain
circumstances, and I would posit that as the section that's
being followed here.
Mr. Gohmert. I would posit for you----
Ms. Lofgren. Would the----
Mr. Gohmert [continuing]. As a Member of Congress, and I am
not yielding--that when there is a conflict between the law and
a policy of an agency, the policy of the agency has to give way
to the law as passed by Congress. It is a very discouraging
aspect of this Administration that we seem to be having this
problem a lot.
And when the people who are charged with enforcing the law
do not, they make up their own policies despite the law, then
as one person said, then the general population gets the
message they don't have to follow the law either.
I see my time has expired. Thank you.
Ms. Lofgren. Mr. Chairman, I would like to ask unanimous
consent that the gentleman be given an additional 20 seconds so
he might yield it to me.
Mr. Gohmert. My time is expired. I'm not asking any more
time.
Mr. Goodlatte. The Chair would recognize----
Ms. Lofgren. I ask unanimous consent----
Mr. Goodlatte. The Chair will recognize the gentleman from
Georgia, and the gentlewoman can place her request to----
Ms. Lofgren. I would like to ask unanimous consent to put
the Section 212(d)(5)(A) and Section 214(f) of the Immigration
and Nationality Act into the record, disproving all of the
comments just made by my colleague from Texas.
Mr. Goodlatte. The first part of that will be made a part
of the record. Without objection----
Mr. Gohmert. Yes, I would object to that being part of the
record, that ``disproving what her colleague just said,''
because it does not disprove what her colleague said. There is
objection.
Mr. Goodlatte. But the statutory provision will be made a
part of the record.
[The information referred to follows:]
__________
Mr. Johnson. I believe it speaks for itself.
Mr. Goodlatte. Without objection, that will be done. And
now the gentleman from Georgia is recognized for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
I believe that our whole detention--immigration, detention
setup is just a way for private industry to make money, and I
will--I will deal with it like this. Are you, Mr. Ragsdale,
familiar with the term the ``detention bed mandate?''
Mr. Ragsdale. I am familiar with that term, yes, as it
relates to----
Mr. Johnson. And that's a term that came about in part due
to the 2014 budget that was approved by this fiscally
conservative, debt and deficit-reducing, Republican-controlled
Congress, i.e., the Appropriations Committee that granted $147
million above what the Department of Homeland Security
requested to maintain what amounts to an arbitrary quota of
34,000 detention beds that American taxpayers are going to pay
for, regardless of whether or not they are filled.
Is that correct?
Mr. Ragsdale. There is a section in the appropriations law
that requires us to maintain 34,000 beds. That's correct.
Mr. Johnson. And it is something that you never requested?
This was done for the purpose of detaining more immigrants.
Isn't that correct?
Mr. Ragsdale. Well----
Mr. Johnson. Yes or no?
Mr. Ragsdale. More detentions happen when there is more
funded beds. That's correct.
Mr. Johnson. And prisons are a task or a--prison--we need
prisons to imprison people who need to be there, but our
Government is--our Federal Government as well as many States
have been on a trek to privatize the prison system. Isn't that
correct?
Mr. Ragsdale. There are commercial providers for detention
services, yes.
Mr. Johnson. About 50 percent of all detainees are held in
private detention centers. And now if we want to reduce the
debt and the deficit, but at the same time, we are increasing
spending for the detention of immigrants, that is inconsistent,
don't you think, Mr. Fisher?
Isn't that inconsistent, those ideals inconsistent?
Mr. Fisher. Well, sir, with respect, again outside of my
area, but----
Mr. Johnson. Well, no, no, no. Just I mean, that doesn't--
that doesn't take any specific knowledge. That is just a matter
of common sense.
I mean, seems to me if you want to cut the budget, you want
to cut food stamps. But yet, last year alone, we appropriated
nearly $18 billion to immigration enforcement agencies, Mr.
Fisher. That is about 24 percent higher than the $14.4 billion
total allocation for law enforcement agencies across the board,
including FBI, DEA, U.S. Marshals, and ATF.
So, in other words, we have--I mean, we spend more money on
homeland security, ICE, and detention and immigration
enforcement than we do for FBI, DEA, U.S. Marshals, and ATF
combined. Did you know that?
Mr. Fisher. Stated that way, sir, no.
Mr. Johnson. Yes, well, I mean, that is the facts. Now
while we are detaining, because we do detain these asylum
seekers, do we not, Mr. Ragsdale? We detain them until they are
granted parole, and we detain them for on average of 550 days.
Isn't that correct?
Mr. Ragsdale. Well, I'm not----
Mr. Johnson. Until they are granted parole?
Mr. Ragsdale. I'm not sure precisely what number you're
talking about there. As we've already heard this morning,
aliens who arrive at or between ports of entry who----
Mr. Johnson. Well, let me get it to--let me get it like
this. How many day--how many months in general do we detain
asylum seekers before we are able to make an assessment as to
whether or not they qualify for asylum?
Mr. Ragsdale. So it varies on a case-by-case basis. CIS has
done some very helpful work in expediting the credible fear
process. That is now done in a number of days.
The Executive Office for Immigration Review is the
responsible party for making ultimate decisions on defensive
asylum claims, and that is a longer process.
Mr. Johnson. Mr. Chairman, it is clear to me that it is all
about the money. I yield back.
Mr. Gowdy [presiding]. The gentleman from Georgia yields
back.
The Chair would now recognize the gentleman from Texas,
Judge Poe.
Mr. Poe. Thank the Chairman.
I want to make it clear that I think that the concept of
asylum is something that the country needs to do. Although I
think it appears now that that is being abused by some specific
individuals and by probably some groups. Otherwise, this chart
wouldn't look like what it looks like.
The word has gotten out here is a way you can make a joke
of the American law. And that just irritates me. So I want to
talk about that group, not the legitimate folks who come to
America for the reasons that we have America.
The reports that the drug cartels, when they get in a
conflict south of the border, they tell their folks that are in
the conflict, go to America, seek asylum, heat is off, you can
come back. We will let you know when it is time to come back.
Have you heard of that report? Any of you.
The Chief?
Mr. Fisher. Congressman, thank you for that question.
As a matter of fact, the intelligence report that I was
referencing coming out of El Paso did have early collection
that that, in fact, was happening.
Mr. Poe. Thank you. And being from Texas, that--drug
cartels are the enemy of the country. That is why we need more
border security is because of them, the criminal threat to the
United States. Not because of some of the other reasons maybe
that people talk about. That is what concerns me as a Member of
Congress and a former judge, border security, we have to go
after these people, these bad guys, these criminals.
The hypothetical question, and so I am just looking for an
answer here. Can a person claim asylum when the person is not
just crossing the border, and you guys catch them, but
somewhere else? Let us say they are in Oklahoma for some
reason. I will use Oklahoma.
And they are stopped for speeding. A person, we don't know
this because we don't do a background check sometimes on people
from foreign countries because we don't get that information.
We don't know anything about this person. We will never know
anything about the person, but there is no criminal record that
we have.
They have been in the country who knows how long. They are
stopped by the Oklahoma Highway Patrol for speeding. They seek
asylum the moment that they are stopped. Does the law say that
is a bona fide asylum seeker, and they treat it through that
route?
They are in Oklahoma. They are not anywhere close to the
border. They aren't even close to the Texas border.
Ms. Scialabba. I'll answer that question. A person who is
stopped like that who doesn't have proper documentation would
be issued a notice to appear and appear before an immigration
judge. They would not be part of the expedited removal process.
They wouldn't receive a credible fear interview.
If they were here legally----
Mr. Poe. No, they are not here legally.
Ms. Scialabba. Okay. If they're here illegally, then the
way that it would be--the only way they could apply for asylum
is if they're placed into removal proceedings before an
immigration judge.
Mr. Poe. I couldn't hear you.
Ms. Scialabba. If they're here illegally, the only way they
could apply for asylum is if they're placed in removal
proceedings before an immigration judge. They would make that
application.
Mr. Poe. But they have claimed credible fear as soon as
they are stopped by the police.
Ms. Scialabba. At that point, they cannot. Credible fear
does not apply in that situation.
Mr. Poe. Okay. Is there a----
Ms. Scialabba. It only applies----
Mr. Poe. Let me--may I ask the question? Does the law
require that that be claimed a certain distance from the
border? That is my question.
Ms. Scialabba. Expedited removal only applies 100 air miles
from the border if the person hasn't been present for more than
14 days. And at the----
Mr. Poe. Talking about an asylum seeker. They are talking
about an asylum seeker. Does that--does the law say they have
to be within 100 miles of the border or 25, or does it make a
difference?
Ms. Scialabba. Oh, no. It does not, not in terms of who can
apply for asylum, no, sir.
Mr. Poe. That is the question. So the question, the answer
to the question is you can be an asylum seeker when you are
stopped in Oklahoma or Idaho or New York. You don't have to be
anywhere close to the border, and we don't really know, since
there is no criminal record, that the person, how long they
have been in the country.
My question is very simple. Don't you think we ought to
change the law that asylum seekers, when crossing the border,
ought to be seeking asylum rather than, oh, by the way, I am an
asylum seeker now that you caught me? You think that might be a
good change to the law to prevent abuses?
Ms. Scialabba. Well, a person has to----
Mr. Poe. Do you think that might be a good change of the
law to prevent abuses or no?
Ms. Scialabba. No, I do not.
Mr. Poe. Well, I think it should be.
And the last question I have is, are there any organized
groups that you know of that are helpful or responsible for
this spike in the numbers other than possibly the drug cartels
who are gaming the law, as they have always done? That is my
last question for the Chair.
Mr. Fisher. Congressman, I will take that. As we get more
and more information about illicit networks, as they change
their tactics, techniques, and procedures, they are, in fact,
looking for areas of vulnerability, and in particular, as the
report indicated, as it relates to credible fear, we have seen
that as well.
Mr. Poe. All right. I thank the Chair.
Mr. Gowdy. Thank you, Judge Poe.
The Chair would now recognize the gentleman from Utah, Mr.
Chaffetz.
Mr. Chaffetz. Thank you.
And I would like to concur with Judge Poe's concern and
belief that we do need an asylum process. We want people who
come legally, lawfully. We have a rich heritage with this. But
what is unconscionable, what we cannot stand for are people
that abuse the system.
My understanding, Mr. Ragsdale, is that there are
approximately 872,000 people, aliens, who remain in the United
States despite final orders of removal. That would be an
accurate number. Correct?
Mr. Ragsdale. We have a different number. We have our
fugitive backlog at about 460,000.
Mr. Chaffetz. So somewhere between--we will to after this
hearing share documents. But it is by the hundreds of thousands
of people that are supposed to be removed from this country.
They have orders from the Government to deport, and they don't.
We can get into the whole lack of an entry/exit program. We
have hundreds of thousands of people that are not--I think that
is a crisis. I think that is a huge problem, especially when
ICE is going to have less beds and less officers. Let us talk
about this.
I am very curious, on page 6 of your joint testimony, it
says asylum officers also ensure that the Federal Bureau of
Investigation--well, let me go to this first. I guess it is to
USCIS. How many asylum officers do we have in this Nation?
Ms. Scialabba. There are currently 270.
Mr. Chaffetz. So there is 270 people that are supposed to
take care of this 35,000-plus number, right?
Ms. Scialabba. Yes.
Mr. Chaffetz. Has that number, the 272, has that increased
over the last 5 years, or pretty much the same?
Ms. Scialabba. It has increased, and we're in the process
of hiring 100 more asylum officers.
Mr. Chaffetz. How much time does that asylum officer take
in interviewing somebody?
Ms. Scialabba. Are you referring to a credible fear
interview or an asylum----
Mr. Chaffetz. Yes, yes.
Ms. Scialabba. For an credible fear interview, it's
probably about 20 minutes is the interview. But prior to that,
they would review all of the documentation that was accumulated
and taken by the Border Patrol----
Mr. Chaffetz. Okay. So they get about 20 minutes on
average.
Ms. Scialabba. On the actual interview.
Mr. Chaffetz. On the actual interview, right. And we heard
in the Oversight Committee about how overworked a lot of these
people are. But page 6 of the testimony, joint testimony,
``Asylum officers also ensure that the Federal Bureau of
Investigation name check and fingerprint checks have been
initiated.''
And I am curious about the word ``initiated.''
Ms. Scialabba. They're generally initiated by CBP or ICE.
Oftentimes, those responses aren't back yet when we're doing
the credible fear interview, but they would be back before
there was any kind of determination made in terms of release or
parole.
Mr. Chaffetz. So can you assure us that 100 percent of the
people who are ultimately--who are released have been given an
FBI--not just given or initiated, but they have completed the
FBI background check and the fingerprint check?
Mr. Ragsdale. So our policy requires that to happen. That's
exactly right. And what I would also say is whether it's CBP,
ICE, or CIS, at the various points, CBP would run all of those
record checks at the time of apprehension. CIS would perform
those same record checks at the time of the interview, and we
would perform those same record checks for a third time before
a release decision is made.
Mr. Chaffetz. So nobody is released prior to those being
completed?
Mr. Ragsdale. We know as much about them as we possibly
can.
Mr. Chaffetz. Let me go back to parole. I am interested in
the idea of parole. I am not an attorney, and my colleague Trey
Gowdy says I am just bragging about that. But let me understand
parole.
How many people do we have that track--how many people are
on parole? You are tracking them, right? ICE tracks them?
Mr. Ragsdale. Well, there are three agencies here, and all
three agencies have parole authority. It comes up in different
circumstances. From the ICE perspective, we could be talking
about parole from custody, which is a different thing than
parole at a port of entry.
Mr. Chaffetz. How many----
Mr. Ragsdale. We could also be talking about parole on
behalf of another law enforcement organization, which we do
also at ICE.
Mr. Chaffetz. How many? What is that grand total?
Mr. Ragsdale. I would have to get you that number.
Mr. Chaffetz. Do you have any idea of the estimate? I mean,
you are supposed to be tracking them, right? So you supposedly
have their names. How many people are on parole within this
system?
Mr. Ragsdale. I don't want to speculate and give you the
wrong number, but we will certainly get you that correct
number.
Mr. Chaffetz. How long until I get that number?
Mr. Ragsdale. We will do it with alacrity.
Mr. Chaffetz. Can you give me a date?
Mr. Ragsdale. Sir, I will give it to you in a week.
Mr. Chaffetz. Thank you.
When they go on parole, what sort of checks or backgrounds,
or do they have to check in? Explain that process to me of
being on parole.
Mr. Ragsdale. Well, it depends on the circumstance. So for
someone who is in immigration proceedings and who is paroled
from custody, they will have a hearing in front of an
immigration judge, and the immigration court will determine
their appearance schedule.
Mr. Chaffetz. So in my case of Phoenix, where they don't
get a date for 7 years, they would be in a parole status. What,
what sort of----
Mr. Ragsdale. So I think we've heard several times today
that immigration court hearing capacity is an issue.
Mr. Chaffetz. It is a problem.
Mr. Ragsdale. It's something outside of my control, but I
certainly would agree that it is something that bears
examination.
Mr. Chaffetz. But I want to know how many people you have
tracking them, what you do to track them?
Mr. Ragsdale. We have about 5,000 officers in all--5,600
officers in all of ERO. So it is a small number considering the
overall volume, whether it's your number or mine.
Mr. Chaffetz. Do you have anybody who is dedicated to
following somebody on parole?
Mr. Ragsdale. We have folks that manage the docket, and
again, we cannot make a demand to remove somebody until an
immigration judge decides their case.
Mr. Chaffetz. Do you have--sorry, Mr. Chairman, but I----
Mr. Gowdy. The gentleman from Utah is woefully over time.
Mr. Chaffetz. Do you have anybody that tracks these people?
Mr. Ragsdale. Yes, we do.
Mr. Chaffetz. How many?
Mr. Ragsdale. We will get you a fulsome answer on that
question.
Mr. Chaffetz. On that same date, a week from now?
Mr. Ragsdale. Yes.
Mr. Chaffetz. Thank you, Chairman.
Mr. Gowdy. I thank the gentleman from Utah.
The Chair would now recognize my friend from Illinois, Mr.
Gutierrez?
Mr. Gutierrez. Thank you, Mr. Chairman.
I just want to talk a little bit about the asylum process,
and first, I want to say that we are talking about credible
fear and the President not enforcing the law and dangerous
members of the drug cartels roaming our streets. I think it is
important the Committee really, I believe, the last legislative
day should be looking at a holistic approach of this within the
confines of deportations and legalization, legal immigration,
and including our asylum system.
But I want to say that I think one of the things we need to
focus on is the United States is still the international beacon
of freedom for those facing oppression around the world. And
people come here to take advantage of that, as well they
should. That is what we want them to do. That is a very
important job that we are doing.
And so, I want to thank everybody for doing that important
job. Now we have to figure out who the people are that are
trying to take advantage.
And I am sure there are people that take advantage of the
food stamp program, but we are not going to let people go
hungry. I am sure there are people who are taking advantage of
unemployment compensation, but we are not going to tell
somebody when they are unemployed we are not going to help them
get back on their feet.
I am sure there are people that take advantage of it, but
you know what, fundamentally, this is a necessary program that
we need to improve upon. The fact that it could take somebody 7
years, lots of cases get decided well before 7 years. Depending
on some jurisdictions, it is a year, 2, maybe 3 years at the
out.
The 7-year is like the outlier. It is like, you know, the
one case that sticks out there like a sore thumb. It doesn't
usually----
Mr. Chaffetz. Will the gentleman yield?
Mr. Gutierrez. Sure.
Mr. Chaffetz. We are talking about the Phoenix office.
Mr. Gutierrez. I understand that. But----
Mr. Chaffetz. That is only three judges.
Mr. Gutierrez. What I am trying--and as you will soon see,
Mr. Chaffetz, I am going to get to that point. So I just want
to put in for the record that this is really outliers these 7
years, right? It is not happening that way in the City of
Chicago. It is not happening that way in a lot of
jurisdictions.
Now, in all of the jurisdictions it is taking too long. So
I think Mr. Chaffetz's question is a much more important
question that we need to answer. It is great that you have a
little under 300 people looking at asylum, and you are going to
hire 100 more. The fact is we need to double it. Shouldn't be
taking 1, 2, 3 years after.
And I just want to say that as a member of the majority
party in the sense that my President got elected, the guy I
voted for got 5 million more votes than the guy you voted for.
Nobody here, I can call them and somehow just some magic wand
and I get somebody an asylum. I mean, there is a very rigorous
process that has been taking care.
And I understand that the majority party wants to look at
this, but I assure you, they do background checks. You got to
go to the FBI. And even after that, I think what you are going
to find that you are not going to find evidence that anything
other--even after they have established that and have gone on
background checks, they have got to prove that they are not a
flight risk.
That means some people are a flight risk. Certainly that
happens, but you have got to prove. I mean, I have worked on
these cases. I have got to find a mom, a dad. I have got to
find an uncle. I have got to find somebody, and we have to know
who they are.
It is not like, oh, okay, we are doing a background check,
but we really don't know. We didn't find you were a bad person.
No, we have to not only find out that you are not a bad person,
we have to actually know who you are.
And I would just think that maybe we might want to take,
Mr. Chairman, some other measures so that we can reduce the
number of people that don't show up to the cases. But let us
remember, right, 75, 80 percent of the people do show up after
they are released and do pursue the asylum claim. And they
assume it, process it through the ultimate legal avenues that
they have before them.
So, I mean, let us try to put this in the focus that 8 out
of 10 actually apply. They go through the process. They are
either successful, or they are not successful. And that it
takes too long.
There are things we can agree on. It takes too long. So let
us come back, and let us hire many more people so you don't
have 7 years in the Phoenix office, and we don't have 2 or 3.
It shouldn't be taking.
And there won't be time today, but I think if we really
looked into this, Mr. Chairman, what we are going to find, we
are going to find hundreds, thousands of people who stay in
jail, year in and year out, because they cannot prove if they
are released. Yes, I knew I was going to find a strategy to
use. But people do stay in jail for years until their asylum
process. So that is an unfair process.
So I think what we might want to look at is in the new
year. And since the little yellow light is out, and the
Chairman has always been so good to me, and we are in--we are
going into a new year in 2014, I just want to say that, look,
my hope is that next year, we can come back. We can look at
this.
Maybe they need ankle bracelets, Mr. Chairman. Maybe we
need other monitoring processes to help them. So when they are
released, we can monitor the folks. Maybe there are other
avenues. But let us make sure that if somebody really fears
death that America is still a safe beacon for them to be here.
And I look forward. Merry Christmas to you guys, and great
holidays. And I really look forward in 2014 to working with
you, Mr. Chaffetz, and you, Mr. Chairman, and everybody on both
sides of the aisle.
Thank you. I have established some great friendships with
you all, and it has been a good year for me, and I want to say
thank you.
Mr. Gowdy. Well, speaking just personally, I want to extend
the same to you. And what a pleasure it has been to work with
you for this past year.
And the Chair will now recognize himself for 5 minutes. Mr.
Ragsdale, I am not going to spend my 5 minutes debating
statutory construction with you. There is a statute that says
``shall be detained.'' That just does not strike me as being an
ambiguous statute.
To my friend from California's point, there is another
statute, which is much more narrowly drawn. In fact, it is so
narrowly drawn, it says ``to meet a medical emergency or
necessary for legitimate law enforcement objective.'' I think
you will agree that is much more narrowly drawn than ``shall be
detained.''
So, since I know you agree with that, what percentage of
those that are apprehended at the border are detained versus
paroled?
Mr. Ragsdale. Last year, we had about 220,000 book-ins from
CBP.
Mr. Gowdy. What percentage would be detained versus
paroled?
Mr. Ragsdale. Of the 220,000 book-ins, it looks like about
25,000 were paroled, about 10 percent.
Mr. Gowdy. So, of that 25,000, you mean all of them can
meet that very precise exception, medical emergency or
necessary for legitimate law enforcement objective?
Mr. Ragsdale. Well, and so, again, if you're talking about
parole, in other words, 212(d)(5) parole, and I certainly don't
want to debate statutory construction with the Chair, but
urgent humanitarian needs and significant public benefit is a
balance. The needs of the individual and versus the needs in
terms of us balancing our resource requirements.
If we look at 460,000----
Mr. Gowdy. Does the ``shall be detained'' statute contain
that same balancing?
Mr. Ragsdale. Well, so there has been a fair amount of
litigation about what ``shall'' means. We see it in the Ninth
Circuit. We see it in the California. Believe me----
Mr. Gowdy. Yes, and no disrespect to my friends from
California, but you are going to have to cite me something
other than the Ninth Circuit. I don't doubt that the Ninth
Circuit can't define ``shall.'' I do not doubt that for a
second.
The rest of the country does know what ``shall'' means. So,
because I am not going to debate statutory construction with
you, I want to ask you this. Of those who are paroled, I prefer
the phrase ``bond,'' but paroled, is there is a bond? Is it a
surety bond? Is it a PR bond? What ensures that they will come
back?
Mr. Ragsdale. So immigration bonds are posted in a variety
of ways. They're normally cash bonds. Again, if it's someone
who has been apprehended between a port of entry, found to have
a credible fear, is issued a notice to appear----
Mr. Gowdy. Who determines that credible fear?
Mr. Ragsdale. The Citizenship and Immigration Services.
Mr. Gowdy. I have seen juries struggle for weeks and months
to determine credibility. How long does it take them to
ascertain whether or not someone is credible?
Mr. Ragsdale. I would have to defer to my colleague at CIS.
Mr. Gowdy. Well, while you are deferring, I want to ask you
about a memo that was produced to the Committee
surreptitiously. This was a form that was being completed by an
agent, and a supervisor wrote this at the bottom of the form,
``We are not investigating potential fraud. We are adjudicating
asylum claims.''
Do you agree with me that that is an oxymoronic statement?
Mr. Ragsdale. I'm not familiar with that document.
Mr. Gowdy. No, but you are familiar with the sentence
because I just read it to you. ``We are not investigating
potential fraud. We are adjudicating asylum claims.''
Ms. Lofgren. Would the Chairman yield for a question?
Mr. Ragsdale. I think inherent in the adjudication is
detecting fraud.
Mr. Gowdy. Pardon me?
Mr. Ragsdale. I would say inherent in the adjudication is
detecting fraud.
Mr. Gowdy. So would I. So would I. So why would a
supervisor----
Ms. Lofgren. A parliamentary inquiry, Mr. Chairman. What
document are you referring to, and does all the Members of
the----
Mr. Gowdy. A document has been produced to me and another
Member of the Committee in confidence.
Ms. Lofgren. Would it be possible to share that document
with other Members of the Committee?
Mr. Gowdy. I will be happy to ask the source of the
document whether or not he has any objections to that. I do
not. I am not going to endanger the confidentiality of this
whistleblower, and I know that my friend from California would
not ask me to do so.
What I do find it striking that a supervisor is saying that
we are not in the business of investigating fraud. We are here
to adjudicate asylum claims.
Mr. Johnson. Mr. Chairman?
Mr. Gowdy. That just strikes me as being an oxymoronic
statement.
Mr. Johnson. Mr. Chairman, you are an attorney.
Mr. Gowdy. Correct.
Mr. Johnson. Proud attorney, I am sure, notwithstanding the
comments that were made earlier by Mr. Chaffetz. But I know
that you understand that rank hearsay, just hearsay on top of
hearsay, copies of stuff, it is just not good, reliable
evidence to----
Mr. Gowdy. Well, reclaiming my time, Mr. Johnson, I am
happy to run through whatever exception to the hearsay analysis
you want me to go through. But you and I both know that there
are last time I counted 24 different exceptions to the hearsay
rule. So----
Mr. Johnson. And this----
Mr. Gowdy.--I will be happy to debate with you some other
time. You are welcome to ask for a second round of questions,
but I am not going to spend my time debating hearsay exceptions
with the gentleman from Georgia.
What I am going to ask, Mr. Ragsdale, is this. What is the
punishment for falsely asserting that you have a credible fear?
What is the sanction? What is the disincentive for asserting it
when it is not true?
Mr. Ragsdale. An immigration judge can make a frivolous
asylum finding when they get to the ultimate asylum
adjudication.
Mr. Gowdy. And the sanction is what? That you are not going
to benefit from your false assertion? Is there anything else--
--
Mr. Ragsdale. Or have immigration benefit, for that matter.
Mr. Gowdy. So if you weren't going to win if you told the
truth and you are not going to win if you don't tell the truth,
what is the punishment? What is the disincentive for that chart
right there?
Mr. Ragsdale. Well----
Mr. Gowdy. Because you and I both know the cartels are a
lot more dangerous now than they were 5 years ago.
Mr. Ragsdale. Let me make it clear that we spend 25 percent
of our criminal investigative hours on narcotics cases. We take
that very seriously. It is the biggest piece of our
investigative portfolio. So we are, like I say, very much
concerned about the drug cartels.
Mr. Gowdy. Well, tell me, walk me through that. Walk me
through that credibility assessment then.
Somebody says that I have a credible fear of the cartel.
You could run an FBI check. I don't think the FBI keeps crime
stats in Mexico or Guatemala or Honduras. So how do you do it?
Mr. Ragsdale. What I'm saying----
Mr. Gowdy. Well, walk me through it. You brought it up.
Walk me through it, Mr. Ragsdale. Walk me through your
investigation of credibility when you can't use U.S. law
enforcement to do the investigation for you.
Mr. Ragsdale. We do not do the adjudication for credible
fears. Citizenship----
Mr. Gowdy. Are you familiar with the process that is used?
Mr. Ragsdale. I'm not an asylum officer. I've never done
it.
Mr. Gowdy. So you are not familiar with how they determine
credibility?
Mr. Ragsdale. I am familiar with the idea of credibility.
As noted before, I am an attorney. I certainly know, as a
prosecutor and a State prosecutor, you are well familiar with
the concept. I certainly want, as a career law enforcement
person, to want people to tell us the truth. I will tell you
that we could prosecute folks for 1001, if that's what you're
asking me.
Mr. Gowdy. Well, of course not. Because you and I both know
that is not going to happen, and that is my point. There is no
disincentive for claiming it, even if it is not true.
Mr. Ragsdale. The Immigration and Nationality Act does
provide for a sanction. It is a frivolous asylum finding. That
is the statute.
Mr. Gowdy. Which means what? That you are not going to be
successful? Well, you weren't going to be successful if you
told the truth.
Mr. Ragsdale. For that or any other immigration benefit for
the rest of your life.
Mr. Gowdy. If you fail to show up on bond or what is called
parole in the statute, is that any negative inference with
respect to the subsequent hearing on the merits?
Mr. Ragsdale. Immigration judges are the ones who are the
fact finders and deciders of hearings after----
Mr. Gowdy. I am asking you. I am asking you, and if you
don't know, that is fine. Is it something an immigration judge
can take into consideration that a person failed to keep their
appointed court date?
Mr. Ragsdale. An immigration judge could take everything
into consideration.
Mr. Gowdy. Do they take that into consideration?
Mr. Ragsdale. Sir, I'm not an immigration judge. I
couldn't--I would be speculating.
Mr. Johnson. Mr. Chairman, I have waited patiently, as the
red----
Mr. Gowdy. Mr. Johnson, with all due respect, had you not
interrupted me, the red light would not have come on. So I am
going to handle it the way I want to handle it. And if you
would like a second round of questions, I am happy to entertain
that.
Mr. Johnson. Yes, I would.
Mr. Gowdy. Be delighted to. I would now recognize the
gentlelady from California for a second round of questions.
Ms. Lofgren. Thank you.
I would like to note just a couple of legal points. Section
208 of the Immigration and Nationality Act, 208(c)(6) provides
in the case of frivolous applications that the alien ``shall be
permanently ineligible for any benefits'' under the chapter,
which I think is a disincentive for proceeding. And I would
like also to mention in terms of statutory construction, it is
important to read the entire sentence in the--in Section
235(b)(1)(B)(iii)(IV).
``Any alien subject to the procedures under this clause
shall be detained,'' but only ``pending a final determination
of credible fear of persecution.''
And so, it is not a permanent incarceration mandate. It is
a mandate prior to the credible fear determination, and I have
heard no indication that that is not being adhered to. So I
think it is important to have those facts on the record.
You know, I want to get back to the reason why we have
asylum in this country, and I would ask unanimous consent to
place in the record information from the United States
Holocaust Memorial Museum, chronicling the voyage of the St.
Louis, one of the most shameful chapters in American history,
where the German transatlantic liner, the St. Louis, traveled
to Havana, where they were turned away. And then to Miami,
where they were refused admission, and ultimately nearly all of
the Jews who were on that liner perished in the Holocaust.
That is not to say that inquiry into the process is
impermissible, but it is that legacy that leads us to make sure
that we have an asylum system that actually works, that
continues to be a beacon of freedom.
I think all of us are affected by matters on which we have
worked, and I cannot help but recalling an asylum application
that I weighed in on in the late 1990's. An individual who had
been a pilot in the Afghanistan air force, and he had, I
believe, a credible fear. And ultimately, he was denied asylum
and returned to Afghanistan where he survived about 1 week
before the Taliban executed him.
So there are real consequences for giving short shrift to
the claims of asylum for individuals who show up on our shores
seeking freedom.
Now looking at, if I may, Ms. Scialabba, the--we don't know
the answer to what is going on in Honduras. The spike is
primarily El Salvador, Guatemala, and Honduras. We know from
our friends on the Foreign Affairs Committee, and Mr. Chairman,
it might actually be a good idea to have some joint hearings
with the Foreign Affairs Committee because this is their area
of expertise on what is going on around the rest of the world.
But there is at least some evidence has come to me that
there is tremendous upheaval going on in Honduras today. And I
am wondering if you have any information, either from the
initial decisions that are being made on some of these cases or
from research that the agency has done, what upheaval or is
there upheaval that is contributing to this spike from those
countries?
Ms. Scialabba. Thank you, Congresswoman.
I can tell you what the claims are that we're seeing, and
they generally do involve fear of cartels, sometimes fear of
the government. Sometimes it's domestic abuse. Sometimes it's
political opinion that the basis is. But a lot of it is based
on criminal activity and people being targeted by cartels, by
gangs, by corrupt officials, and we also see the domestic
violence claims.
We also see some sexual orientation claims. I think those
are the majority of--they fall into basically four categories
for the most part of the claims that we're seeing.
Ms. Lofgren. I see that my time has expired, Mr. Chairman.
I yield back.
Mr. Gowdy. I thank the gentlelady from California.
Before I recognize the gentleman from Utah, I just want to
read the--since we are now under the rule of completeness,
reading the entire statute and all relevant provisions, ``If
the officer determines at the time of the interview that an
alien has a credible fear of persecution, the alien shall be
detained for further consideration of the application for
asylum.''
With that, I would recognize the gentleman from Utah, Mr.
Chaffetz.
Mr. Chaffetz. Thank you, Mr. Chairman.
So, Mr. Ragsdale, when somebody is going in for that final
adjudication process, they have claimed asylum, and the judge
rules that they are not going to be granted asylum. Do you or
do you not take them into custody and deport them?
Mr. Ragsdale. Well, it depends on whether or not it's a
final order of removal.
Mr. Chaffetz. If it's a final order of removal and they are
there in the court, do you take that person, if they happen to
show up, do you take them into detention and deport them?
Mr. Ragsdale. So in the very rare circumstance that someone
gets a final order of removal from an immigration judge, we
would make every effort to take that person into custody at
that time.
Mr. Chaffetz. Immediately, right there?
Mr. Ragsdale. Assuming it was a final order, yes.
Mr. Chaffetz. And if they--if they have been denied asylum,
how do you go out and find that person, and what percentage of
these people are you able to actually detain and deport?
Mr. Ragsdale. So if you say they've been denied asylum, and
they are pursuing an appeal?
Mr. Chaffetz. Yes. Oh, no, no. They gone through all--they
have exhausted their legal remedy. They have been ordered to be
deported. Is it your primary responsibility to find and deport
those people?
Mr. Ragsdale. Yes, we have a national fugitive operations
program, and that is their function.
Mr. Chaffetz. And we have hundreds of thousands of people
on this list. Correct?
Mr. Ragsdale. Correct.
Mr. Chaffetz. And this is the problem. If hundreds of
thousands of people who would just ignore the law, they ignore
the judge, they are supposed to be deported, they thumb their
nose at us, and they just continue on here. That is the
problem.
Let us talk about USCIS. When somebody gets an opportunity
to have their case adjudicated, they are claiming asylum. They
have been, okay, let us go to the next step. In my case in
Phoenix, it is going to take 7 years before they go to a judge.
They can apply for a work permit. Correct?
Ms. Scialabba. After 150 days, they can file an
application. We have 30 days then to adjudicate it.
Mr. Chaffetz. And what percentage of people that apply for
a work permit do you grant a work permit to?
Ms. Scialabba. In most cases, they get the work
authorization if they're outside that timeframe.
Mr. Chaffetz. So, Mr. Chairman, they come here. They get
detained. They see a judge. They get a court date, which, in
the case of Phoenix, is some 7-plus years, and then they
essentially get free education, free healthcare. They can apply
for work permit.
You tell me the overwhelming majority are going to get a
work permit, and then they can compete for--there is no
limitation on what job they can get. Correct?
Ms. Scialabba. Let me clarify what I said because I made it
a general statement, and it's a little bit more complicated
than that. If you're talking about an affirmative asylum
application, we have a timeframe, and we work with EOIR to do
those within 180 days. Do they all get done in 180 days so the
person doesn't get work authorization? No, not necessarily.
I was talking in terms of a defensive claim. If it goes
directly to the immigration judge and the court hearing is
going to be that far out, then, yes, it's likely they're going
to get work authorization.
Mr. Chaffetz. Because there is such a backlog we just go
ahead, and so you see the perverse incentive, Mr. Chairman. The
perverse incentive is you can claim asylum in the country. We
have embassies and consulates. You can walk into there and
claim asylum. Correct? Correct?
Ms. Scialabba. Not exactly. No, that's not exactly how it
works.
Most of our refugee applications come through UNHCR. You
could go into an embassy and say that you want to have a
refugee adjudication. It's highly unlikely. It's rare.
Mr. Chaffetz. But the perverse incentive here is come here
illegally. Claim asylum. And then guess what? You are going to
get free education, free healthcare, and you are going to apply
and, most likely, odds are you are going to get a work permit.
Ms. Scialabba. Well----
Mr. Chaffetz. Instead of--instead of the person who tries
to come here legally and lawfully isn't willing to break the
law. There is a backlog. There is a line. I advocate for more
legal immigration. I want to fix legal immigration. It is not
working.
But that person is suddenly now working in the United
States of America with this work permit.
Ms. Scialabba. I think I would also point out that quite a
few people who apply for asylum actually did come into the
country legally, not illegally. Probably half of the people who
apply for asylum did enter----
Mr. Chaffetz. Do you have any statistic that backs that up?
Ms. Scialabba. I believe we do, and we can provide those to
your staff.
Mr. Chaffetz. Let me also understand. You were trying to
distinguish the difference between somebody who is at a port of
entry and the points in between, that one was going to go
through parole. The other was going to go through a different.
Can you explain that again to me, the difference?
Mr. Ragsdale. And I apologize for a less than clear answer.
There are different sections of law that the Immigration and
Nationality Act allows for consideration for custody. One is
under one section of the law. Another is under a different
section of law. So while the terms ``parole'' and ``bond'' are
used sort of in a vernacular, there are actually some legal
distinctions in those sections.
Mr. Chaffetz. We need some help understanding that because
we're trying to look back at the law. I would ask unanimous
consent to enter into the record the U.S. Immigration and
Customs Enforcement memo issued on December 8, 2009, Parole of
Arriving Aliens Found To Have a Credible Fear of Prosecution or
Torture,* along with the record of determination, parole
determination worksheet.
---------------------------------------------------------------------------
*This material was submitted for the record earlier by Mr.
Goodlatte (R-VA) and can be found on page 10.
---------------------------------------------------------------------------
Mr. Gowdy. Without objection, with respect to that document
and the document that Ms. Lofgren from California asked a UC on
earlier.
[The information referred to follows:]
__________
__________
Mr. Chaffetz. Thank you. My time has expired. So I yield
back.
Mr. Gowdy. The Chair will now recognize the gentleman from
Georgia, Mr. Johnson.
Mr. Johnson. Thank you.
My colleague from Utah makes some excellent points about
the bottlenecks that are created which result in more people
being held in detention centers because the system is backed
up. We don't have enough immigration judges, and we don't have
enough asylum officers. I believe he has made those points.
And those points are correct, is that right, Mr. Ragsdale?
Mr. Ragsdale. I can't give specifics as those are two
agencies by which I'm not employed. But I will say that for ICE
and for the DHS enforcement arms generally, immigration court
capacity is a concern.
Mr. Johnson. Well, let me ask Mr. Fisher, it does go to the
benefit of the private prison industry is when we have the
bottleneck caused by not having enough immigration judges and
not having enough asylum officers. Does that sound reasonable
to you?
Mr. Fisher. Yes, sir. But again, that's out of my area of
expertise as a----
Mr. Johnson. I understand. I understand.
Mr. Fisher. Yes, sir.
Mr. Johnson. I understand. Well, Mr. Chairman, Americans
are overwhelming in support of a path to citizenship. We all
agree that strong enforcement has its place in a balanced
approach to comprehensive immigration reform. But a path to
citizenship is critical to reform.
This week, I proudly took part in the Fast for Families
campaign. By fasting, I stood alongside my Democratic
colleagues on this Committee who are following the examples of
Martin Luther King, Jr., Mahatma Gandhi, and Nelson Mandela, as
we address what has become a moral crisis in our society here
in America.
You know, this is not about drug cartels. It is not about
the rules of legislative construction or the rules of evidence,
or even the rule of completeness. This is about a moral dilemma
that we face in this country. Are we going to continue to
sacrifice the liberty of immigrants, mostly from south of the
border or from Africa, Hispanics and Black folks, being feasted
upon by the private prison industry?
Are we going to continue to let that scenario line the
pockets of the corporate bosses, or are we going to do
something that is humane, justice--humane, just, and consistent
with America's belief in due process? That is where we are
right now.
Now we have talked about a bottleneck caused by background
checks, and I will note that Edward Snowden's background check
was done by a private contractor. The person who killed the
folks over at the Navy Yard, background checks done by private
industry.
Have we outsourced the background and security checks that
we do for asylum seekers to the private sector, anyone on the
panel?
Ms. Scialabba. I'll answer for USCIS. No, we do not.
Mr. Ragsdale. And I'll answer for ICE. No, we do not.
Mr. Johnson. Do you have enough folks that are running
those background and security checks employed at your agencies?
Ms. Scialabba. I'll answer for USCIS. It's the actual
officer who's going to do the credible fear interview or the
asylum application who runs--who checks and runs those
background checks.
Mr. Johnson. Now, Mr. Fisher, your agency has the least to
do with asylum applications out of the three agencies here. Do
you--you don't do any background checks as Border Patrol.
Correct?
Mr. Fisher. That is not correct, sir.
Mr. Johnson. You do?
Mr. Fisher. Yes, sir.
Mr. Johnson. Do you do them and pass it on to the asylum
seekers--or the asylum officers?
Mr. Fisher. The records themselves?
Mr. Johnson. Yes.
Mr. Fisher. We complete post arrest, including biographic
and biometric information. We run federated queries that reach
out and touch multiple databases to identify the individual and
to ascertain at some level the risk.
Mr. Johnson. But you do not make any determination about
whether or not an asylum seeker has actually established a case
of fear, of credible fear?
Mr. Fisher. That is true.
Mr. Johnson. All right. I will yield back the balance of my
time.
Mr. Gowdy. I thank the gentleman from Georgia.
The Chair will now recognize the gentleman from Illinois,
Mr. Gutierrez.
Mr. Gutierrez. Could you please pronounce your last name
for me? Not that I am going to get it right, but I am going to
try.
Ms. Scialabba. Scialabba.
Mr. Gutierrez. Scialabba, okay. So, Deputy Director
Scialabba, let me ask you a few questions, and Mr. Ragsdale,
you chime in if you think you can be helpful, anyone who thinks
they can be helpful.
So how many people petition a year for asylum? How many
people petition come----
Ms. Scialabba. Asylum and not credible fear?
Mr. Gutierrez. No. Well, make a credible fear application?
Ms. Scialabba. Last, during 2013, there were 36,000 people
who applied, requested credible fear interviews.
Mr. Gutierrez. Okay. And then, of those who applied for
credible fear interviews, how many were paroled?
Ms. Scialabba. That I will refer to my ICE colleague on.
Mr. Ragsdale. It's approximately 25,000.
Mr. Gutierrez. About 25,000. So the remainder stay
imprisonment until their cases are----
Mr. Ragsdale. They were either detained or if a negative
credibility--excuse me, a negative finding was found, they were
removed.
Mr. Gutierrez. They were removed. Okay. So you have 36,000,
25,000 move forward in the process. I am just trying to figure
out because I am talking to Mr. Chaffetz, and we are trying to
figure out what is happening numerically.
Ms. Scialabba. We found credible fear in 30,000 cases. Some
of those probably withdrew before they went before the
immigration judge. Others will have gone before the immigration
judge. In terms of their custody, it will depend on whether
they came in at a port of entry or whether they came in between
the ports of entry.
At the port of entry, we can parole them. If they came in
between the ports of entry, we could set a--I'm speaking for
ICE, sorry. They could set a bond, or the immigration judge can
set a bond, and then they can be released that way.
Mr. Gutierrez. But before--well, you know what, we are
really going to need to have some, Mr. Chairman, some----
Ms. Lofgren. Would----
Mr. Gutierrez. Yes?
Ms. Lofgren. Would the gentleman yield for a question?
Because, Mr. Ragsdale, I am mystified by your answer on the
parole. Because we got the information from ICE dated December
5th, which was last week, that indicates that the total
approvals were 2,467 for year 2013.
Mr. Ragsdale. Approvals of?
Ms. Lofgren. Parole.
Mr. Ragsdale. So of the 25,000 roughly, about 12,000 were
released on bond. About 8,000 released on their own
recognizance, and about 4,390 were released on parole. So it
sort of depends, and the only thing I could sort of----
Ms. Lofgren. Well, why would the agency have given us the
number of 2,467 if it was 4,000?
Mr. Ragsdale. Well, I certainly apologize for the
discrepancy. I'm not familiar precisely with what you're
looking at, but we will certainly make sure that's clear to
you.
Ms. Lofgren. I thank the gentleman for yielding.
Mr. Gutierrez. Yes, and I think--Mr. Chairman, I think, I
was talking to Mr. Chaffetz, and I think we are going to need
some more information so that we can get some specific. Because
I don't think, I could be wrong, that--so you treat Mexicans
and other nationals differently? Anybody can answer.
Mr. Ragsdale. No.
Mr. Gutierrez. No? There is not other than Mexicans and
Mexicans as you are looking at them in terms of categorizing
those that apply for asylum?
Mr. Ragsdale. They make--if they make--apply for
protection.
Mr. Gutierrez. Apply for protection there is no difference?
Mr. Ragsdale. Not that I'm aware of.
Mr. Gutierrez. Really? Okay.
Mr. Chaffetz. Will the gentleman yield?
When I went to the Eloy detention facility, when I was down
on the border, you have two categories of how you recognize
them--OTMs, other than Mexicans, and Mexicans. It was pretty
clear that somebody that was detained by the Border Patrol
would, in many cases, be deported immediately, within, say, an
hour or so in some cases back across the border. But if they
were OTMs, a little different process they are going to go
through.
Mr. Gutierrez. And I have heard the same thing, and we are
not--with no hostility toward you, if you could help us?
Mr. Ragsdale. Just Mexico is a unique country. They can be
removed physically by ground transportation.
Mr. Gutierrez. I understand, but there is a difference. You
do categorize them differently----
Mr. Ragsdale. Their rights under the law are identical.
Mr. Gutierrez [continuing]. Those who are Mexican and
Mexican nationals and others.
Mr. Ragsdale. Their rights under the law to apply for
protection are exactly the same.
Mr. Gutierrez. I understand their rights under the law are
protected the same. Then why don't you just treat them all the
same? Why do you categorize them differently?
First you are saying that you don't categorize them
differently, but all my information is that you do categorize
them differently. And the moment you categorize somebody
differently, you are kind of undermining their rights. I mean,
I would rather be in the general category than in a category of
people that really get shipped back rather quickly and get
denied.
I mean, if you were to take--let me just ask you a
question. If you were to take Mexican national vis-a-vis
nationals from India, Pakistan----
Mr. Chaffetz. Africa.
Mr. Gutierrez.--Africa, name the country, are you telling
me that there is no difference in the percentage of denials
between Mexicans and other nationalities?
Mr. Ragsdale. When you're saying ``denials,'' do you mean--
--
Mr. Gutierrez. People who aren't found with credible fear.
People who never get asylum. People who are just said, adios,
go back where you came from. The denial rate is no different?
Mr. Ragsdale. The denial rate for Mexicans, I would
suspect, is higher.
Mr. Gutierrez. Thank you. So I would like to know the
number. So you see, my point is, first of all, we are talking
about drug cartels, and the drug cartels the last time I read
are from Mexico. And they only represent 7 percent, right, of
all of those who are applying for credible--what is the
percentage?
Ms. Scialabba. It's 7 percent.
Mr. Gutierrez. Seven percent. So now we are only talking
about 7 percent of the totality of them. And we do know that
they go through rigorous background checks. You are not going
to release them until the FBI does a background check on them.
I think the Chairman makes a good point. Maybe we need to
have some--so you have no relationship in checking on somebody
with another country in terms of checking whether these people
are criminals? You have no way?
Mr. Ragsdale. These are domestic law enforcement data.
Mr. Gutierrez. These are domestic law enforcement. Well,
maybe we should begin to look at that.
Mr. Ragsdale. Well, so there certainly is some information
that we share from our international affairs program. There are
some biometrics that are shared with the governments of
Honduras, El Salvador, and Guatemala. There is some
information.
But the NCIC query, the TECS query----
Mr. Gutierrez. What you are saying is the Drug Enforcement
Agency of the United States and the Justice Department of the
United States and those of us in the Federal Government that
are fighting drugs and crime----
Mr. Ragsdale. Those records are checked.
Mr. Gutierrez. Excuse me?
Mr. Ragsdale. Those records are checked.
Mr. Gutierrez. Those records are checked. Good. And we are
not checking with our counterparts in other countries?
Mr. Ragsdale. Not every country has the same systems.
Mr. Gutierrez. Not every country. How about Mexico? Let us
try one country.
Mr. Ragsdale. We share some information with Mexico.
Mr. Gutierrez. That is what I always understood up until--I
mean----
Ms. Lofgren. Would the gentleman yield?
Mr. Gutierrez. Yes.
Ms. Lofgren. It mainly depends on the political
relationship we have with the foreign country. I mean, we share
terrorism information with Russia.
Mr. Gutierrez. Because----
Ms. Lofgren. And quite a few other things.
Mr. Gutierrez. Thank you, Mr. Chairman. And we are going to
conclude. Because here is what I find astonishing. We do--I
mean, the success against a drug cartel, in great measure, is
due to the intelligence services of the United States of
America in identifying where they are at and locating them for
the Mexican government. That is just a fact.
And when the new government, the new government was just
brought in, they were quite astonished at the level of
cooperation that exists between our intelligence services, our
law enforcement services, including others, and I don't want to
say anymore because, you know, then all of a sudden you are
giving away state secrets. But I have read this stuff in
Newsweek and Time.
Here is my point. I think, Mr. Chairman, we can make good
points. It is taking too long, and we should try to figure out
those that are taking advantage of the system. I don't believe
personally that drug dealers and members of the drug cartel are
showing up at our border and saying, voila, why don't you check
me out?
I think they have other avenues to enter the United States
through other mechanisms other than checking in with you,
including a flight to Canada and coming through the border that
is virtually unchecked on the northern part.
So, having said that, I think also, though, I want to just
emphasize what Congresswoman Lofgren said. You know, people are
coming here. We have got to design a system that doesn't cause
their ultimate death because we are the beacon of hope. We are
the place where people come to seek refuge.
So I think you are making good points. I think, together,
we can put monitoring systems. We can do other checks and
balances so that the majority. But let us just establish it is
only 7 percent from Mexico. So I don't want headlines tomorrow,
right, all of these drug cartels.
And it is really not about the drug cartels. Most of this
has nothing to do with the drug cartel. And it is really people
trying to get credible fear.
And I do want you to come back with information about
Mexicans and other than Mexicans because I understand they are
all the same, but they are treated differently statistically.
And I would like to know why a claim from a Salvadoran
national, a Honduran national, or a Guatemalan national is
treated differently than one of a Mexican national.
Because I am going to tell you something. From all of the
information we receive here, whether through the Intelligence
Committee or through other sources of information, it is
virtually dangerous in many of those places equally. I wouldn't
want to dial 911 and expect the police to show up.
Thank you very much, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Illinois.
The Chair would now recognize the gentlelady from
California.
Ms. Lofgren. Thank you, Mr. Chairman.
I would like unanimous consent to put in this document that
explains the legal authority, both in terms of case law as well
as statutory authority for parole, as well as you and I have--I
think have a great working relationship, suggests that we might
sit down at some point after this and go through the section of
law. Because I think if we do, we will come to a meeting of the
minds.
Mr. Gowdy. Yes, ma'am.
Mr. Chaffetz. What is--pardon me. But what is the source of
this document that interprets the law for us?
Ms. Lofgren. It is from the U.S. Immigration and Customs
Enforcement. It is a recitation of the statutes as well as the
cases.
Mr. Chaffetz. That would be great.
Mr. Gowdy. Without objection, I will look forward to
working with the gentlelady from California, as I always do.
[The information referred to follows:]
__________
Mr. Goodlatte. I will recognize myself for the final round
of questions. And I was listening to my friend from Illinois
talk just a few moments ago, and my friend from Utah, who,
although they sit on different sides of the aisle, both strike
me as incredibly compassionate people who don't want anyone who
is being persecuted to not be able to avail themselves of the
protections and the freedoms of this country.
No one has ever accused me of being compassionate.
Nonetheless, I did introduce a bill that if you--that there
will be no foreign aid to any country that discriminates on the
basis of religion or who denies equal access to education based
on gender. Now that bill has zero chance of passing, but I say
that just to say I don't want anyone who is under a legitimate
threat of being persecuted because of a belief to have to stay
where they are.
But I also don't like fraud. And when I see that chart,
what that chart requires me to accept is that the world is
twice as dangerous in 2013 as it was in 2012. Because the
numbers are more than double for 2013 than 2012, and that
strains credibility.
If you are just watching C-SPAN at home, which means you
have nothing better to do. But if you are watching this hearing
at home, you just know intuitively that the world is not twice
as dangerous as it was in 2012. So what explains the spike?
What explains it?
Could any part of it be fraud? Could any part of it be that
the message has gotten out that if you utter these talismanic
words, regardless of the authenticity, that you are going to be
better off?
I have heard about Honduras, and I have heard about
Guatemala. The numbers are also up in India, Nepal, Bangladesh,
China. So if the word has gotten out that you can game the
system, which, by the way, also undercuts the legitimacy of
legitimate claims. It is just not that it divert resources. It
undercuts the legitimacy of people who are being persecuted.
So we ought to--if we can agree on nothing else, and there
are days I don't think that we can. But we ought to be able to
agree that we don't want people gaming the system, and we don't
want fraud.
Mr. Ragsdale, are you familiar with the Dream 9 or the
Dream 30?
Mr. Ragsdale. I am familiar with them, yes.
Mr. Gowdy. Okay.
Mr. Ragsdale. Not personally, but I have obviously----
Mr. Gowdy. Can you help me explain, if I am asked when I go
back home, how would you voluntarily leave this country with
its protections and its safeties, cross the border to make a
political statement, and already have your paperwork drafted by
a lawyer where you are asserting a credible fear? How is that
successful?
How can you be credibly fearful of returning to a country
that you just voluntarily returned to? How does that work?
Mr. Ragsdale. Again, ICE does not make credible fear
determinations. That is done by CIS. So we cannot look behind
that decision.
Mr. Gowdy. Who should I ask?
Mr. Ragsdale. What I can report to you is statistics.
Mr. Gowdy. I don't want statistics. I want--I want to know
how I can explain how people who leave this country to make a
political statement and then want to hide behind this, how do I
explain that?
Ms. Scialabba. There are situations where people will
return to the country that they are originally from, and then
they will experience some sort--the people that you're talking
about initially were not asylum applicants. They had deferred
action under the childhood arrival provision.
Mr. Gowdy. Oh, I know that. How long were they out of the
country?
Ms. Scialabba. Not--well, it varies. Case by case, it
varies.
Mr. Gowdy. What was the shortest amount of time they were
gone?
Ms. Scialabba. Oh, honestly, I don't know off the top of my
head.
Mr. Gowdy. Well, just give me a good guess. I am not going
to hold you to it.
Ms. Scialabba. Maybe a week.
Mr. Gowdy. A week? So in the course of a week, you can
develop a credible fear claim. And by the way, you actually
developed it before you ever left because you had your attorney
prepare the paperwork.
Ms. Scialabba. That I'm not aware of. But let me----
Mr. Gowdy. Well, I am just telling you. It undercuts the
credibility of people who have legitimate claims when you
demagogue it and you politicize it.
Ms. Scialabba. Well, I can give you two examples of cases
that came, that did that, went back to Mexico, and I'm not
advocating that they should have done that. But went back to
Mexico and came back. And the claim was for one was based on
sexual orientation. So that is a legitimate on which the claim
of credible fear----
Mr. Gowdy. I am not debating the legitimacy of that. I am
debating the logic of returning to a country that you are so
fearful of that you want to permanently stay in another
country. I am just telling you it strains logic, and it strains
credibility, and it smacks of making a political point.
Is that chart accurate?
Ms. Scialabba. Yes, it's accurate.
Mr. Gowdy. All right. Is the world twice as dangerous in
2013 as it was in 2012?
Ms. Scialabba. I think you will see, if you look at the
history of credible fear, that the nationalities will change on
a regular basis and the fluctuations will change on a regular
basis.
Mr. Gowdy. Well, I am looking at it. I am looking. I don't
see any fluctuation that even approaches 2013 juxtaposed with
2012.
Ms. Scialabba. It does not. It does not.
Mr. Gowdy. Okay. So what do you explain the spike in 2013?
Is there any chance it could be that we have figured out if you
just utter this talismanic phrase, you are going to be better
off?
Ms. Scialabba. Well, I will tell you we have been working
closely with ICE and CBP because we are concerned with the
large number of people who are claiming credible fear. But the
stories that we're hearing and that they're telling us do rise
to the low level that's required for credible fear referral.
It's only a screening process.
Mr. Gowdy. Okay. And I want you to tell me, as an old
washed up prosecutor, how you analyze credibility.
Ms. Scialabba. Our asylum officers are trained on
credibility. You have to look at what the story that they're
telling you, whether it's consistent, whether it's detailed,
and whether it has a nexus to one of the five grounds for
asylum. Persecution----
Mr. Gowdy. What kind of investigation do you do?
Ms. Scialabba. We do all the background checks.
Mr. Gowdy. Well, but it is tough to do a background check
if you haven't been convicted of a crime. I mean, what are you
going to check? A credit history?
Ms. Scialabba. No. We check the FBI fingerprints----
Mr. Gowdy. Okay. I haven't been convicted of a crime.
Ms. Scialabba. We do TECS checks as well, which is a
database from CBP.
Mr. Gowdy. How long does this investigation last? How long
does the interview last?
Ms. Scialabba. These are checks, not investigations.
Mr. Gowdy. Okay. How long does a check last?
Ms. Scialabba. We are not an investigative agency.
Mr. Gowdy. How long does a check last?
Ms. Scialabba. The checks are run through the databases.
They're pretty quick.
Mr. Gowdy. I am just telling you. I don't know whether you
were a prosecutor in a former life or not. I can just tell you
this. It is really tough to assess credibility. Some people
can't do it in weeks or months.
I hope--I would love to see a program that Luis Gutierrez
and Jason Chaffetz and Zoe Lofgren and Louis Gohmert all agree
is being done so well and that there is so much of an interest
in ferreting out fraud that we don't have to have this hearing
again. But I can just tell you, when you see a spike like the
one from 2013 to 2012, it is impossible to explain to the
people we work for anything other than someone has figured out
how to game the system. Can you appreciate that?
Ms. Scialabba. I can appreciate that.
Mr. Gowdy. All right. Thank you.
On that note of conciliation, Mr. Chaffetz?
Mr. Chaffetz. I will be brief. Thank you, Mr. Chairman.
Going back to those people that are going through this
assessment and checking, their performance evaluation--these
asylum officers, their performance evaluation, is any part of
their performance evaluation based on the number of approvals
or disapprovals?
Ms. Scialabba. No, it is not. And all cases are reviewed by
a supervisor.
Mr. Chaffetz. How many supervisors are there?
Ms. Scialabba. Seventy-five supervisors.
Mr. Chaffetz. Is any part of their performance evaluation
based on how long they have to take on each case?
Ms. Scialabba. No. I mean, we--no, it's not. We have
requirements on how quickly we want to move cases through the
process, but someone's rating is not based on the number of
cases that they are doing or not doing. We have goals. We
definitely have goals.
Mr. Chaffetz. In your ideal world, how long should it take
to move a case through the system, and what is the reality of
how long it is actually taking?
Ms. Scialabba. Which system are you referring to?
Mr. Chaffetz. Well, the one you just referred to.
Ms. Scialabba. Expedited removal?
Mr. Chaffetz. Yes, sure. That one.
Ms. Scialabba. Expedited removal. On average, it's about 19
days before a case is referred to us for a credible fear
interview. We're doing them within 8 days. We do the interview
for credible fear and then refer the case back to ICE.
Mr. Chaffetz. And is there a goal that you said you are
going to add 100 new officers or 100 new people to this. I am
trying to get the metric that says this is how big the backlog
is.
Ms. Scialabba. We don't have a backlog on credible fear.
Where we're suffering is in the affirmative asylum process
because we've devoted the resources to the credible fear
process.
Mr. Chaffetz. So how, again, you are hiring 100 new people,
and you have 270, did you say?
Ms. Scialabba. Two hundred seventy, yes.
Mr. Chaffetz. So what is the backlog or why--I think I
understand why. But I want to hear from you, why are you hiring
100 new people where 270 was insufficient?
Ms. Scialabba. Because we were devoting people who would
normally be doing affirmative asylum applications to the
credible fear process because of the spike that you're seeing
there of people applying for credible fear. And we need to add
the asylum officers to stay current with the affirmative asylum
process also.
Mr. Chaffetz. Do you meet with all of these people in
person?
Ms. Scialabba. Which?
Mr. Chaffetz. When you are interviewing. You are trying to
assess--going to Mr. Gowdy's point, when you are trying to
assess somebody's credibility, do you meet with all of these
people in person?
Ms. Scialabba. On the credible, you're referring to
credible fear?
Mr. Chaffetz. Yes.
Ms. Scialabba. No, we don't meet. We do V-tel, we do in-
person, and we also do telephonic.
Mr. Chaffetz. So you are assessing somebody's credibility
on the telephone?
Ms. Scialabba. In some instances, yes.
Mr. Chaffetz. And how long is that interview going on?
Ms. Scialabba. Those interviews are about 20 minutes. It's
a screening process. It's not a process to determine whether
someone is actually going to get asylum. It's to determine
whether there's a significant possibility that they could get
asylum from an immigration judge.
Mr. Chaffetz. And this is the concern, Mr. Chairman and to
the other Members of this panel, 20-minute telephone
conversation we are assessing them, and in many cases, we are
allowing them to stay here for 7 years. They get a work permit.
They can get free education, free healthcare. I mean, all these
benefits for simply touching base here.
I yield back. I appreciate this hearing. It has been a
fruitful dialogue.
One last encouragement. We need metrics. Metrics that we
can work on the same pages. This has been an ongoing problem
with Homeland Security, to get metrics that we can all look at,
not dispute. We just need your ongoing help. Just please help
us with that so we get--we want to get it right, but we need
the metrics to do so.
Appreciate the Chair, and appreciate this hearing and yield
back.
Mr. Gowdy. The gentleman from Utah yields back.
I will give my friends on the other side the same amount of
time. It seemed longer, but I think he only took 5 minutes. So
I am going to divide it. However Mr. Johnson and Mr. Gutierrez
want to use it, and I am done. So----
Mr. Johnson. All right. Thank you, Mr. Chairman.
The majority is arguing here that the credible standard of
fear--the credible fear standard, which is set by statute, is
too low. And they are also arguing that because of an alleged
spike in the number of claims of credible fear, then there must
be something that the Obama administration has to do with that.
In other words, this is Obama's fault that we are having a
spike in these credible fear asylum claims.
Now it is true that this fear found rate is higher than it
has been since fiscal year 2006, when it was also 83 percent.
It is 83 percent now. It is an 83 percent figure now. It was 83
percent in fiscal year 2006, was it not, Ms. Wasem?
Ms. Wasem. I believe that's correct.
Mr. Johnson. And matter of fact, fiscal year 2000, the
credible fear rate was 93 percent of the cases. Is that
correct?
Ms. Wasem. I do not have the 2000 data.
Mr. Johnson. Well, according to my data, it was a 93
percent rate. And in fiscal year 2001, the rate was 94.5
percent, and it only dropped below 90 percent after 2005, and
that is attributable probably to two things. One, there was a
policy change that stopped placing Cubans arriving at land
ports of entry into expedited removal. And second, the 2004
REAL ID Act contained changes in asylum law that made asylum
harder to obtain.
And as a result, this decreased the percentage of cases in
which asylum officers were able to find a significant
possibility that the alien could establish eligibility for
asylum under Section 208. But, and I will say also that when
one looks around the world, take India, for example, one of my
colleagues from the other side cited. The rapes of women, does
that contribute to these requests for asylum?
Syria, the displacement of so many people, hundreds of
thousands of people. South Sudan, Somalia, Central African
Republic, Democratic Republic of Congo, all of these fights
that are going on, Egypt.
And at this point, I will yield the balance of my time to
Mr. Gutierrez.
Mr. Gutierrez. Thank you, Mr. Chairman.
And I just want to make sure we work with Mr. Chaffetz
because I believe he is correct that when you finally are
granted asylum, you do have special provisions for education
and for healthcare once you are granted so that you can
integrate. But I would like to see--I don't think you just show
up at the border, get a credible fear and that somebody gives
you Blue Cross Blue Shield and a Pell grant. That is just not
happening.
But I do think at the end of the process that is happening,
as well as it should as established by law. I would like to
look at that. And I do think, Mr. Chairman, we have a
responsibility. I love this program. I want this program, and I
know you want--you have dedicated your public lives to this
program. I want it to work.
And if you see something wrong in a program and you don't
attack it, then you are really not safeguarding the program.
You are really not demonstrating your true love for the program
and its principles. And too many people's lives are at stake to
let a few people who are, you know, as whatever, using the
system for their own personal gain.
Thank you, Mr. Chairman.
Mr. Gowdy. Thank the gentleman from Illinois.
This concludes today's hearing. I want to say thank you to
all the witnesses for attending, for your testimony, for your
comity with each other and with the Committee.
Without objection, all Members will have 5 legislative days
to submit additional questions for the witnesses or additional
materials for the record.
With that, the hearing is adjourned.
[Whereupon, at 1:24 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
__________
Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Member, Committee on the
Judiciary