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





 
  OPEN BORDERS: THE IMPACT OF PRESIDENTIAL AMNESTY ON BORDER SECURITY

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

                                HEARING

                               before the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 2, 2014

                               __________

                           Serial No. 113-91

                               __________

       Printed for the use of the Committee on Homeland Security
                                     


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                     COMMITTEE ON HOMELAND SECURITY

                   Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas                   Bennie G. Thompson, Mississippi
Peter T. King, New York              Loretta Sanchez, California
Mike Rogers, Alabama                 Sheila Jackson Lee, Texas
Paul C. Broun, Georgia               Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice    Brian Higgins, New York
    Chair                            Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania         William R. Keating, Massachusetts
Jeff Duncan, South Carolina          Ron Barber, Arizona
Tom Marino, Pennsylvania             Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah                 Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi       Filemon Vela, Texas
Lou Barletta, Pennsylvania           Eric Swalwell, California
Richard Hudson, North Carolina       Vacancy
Steve Daines, Montana                Vacancy
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Mark Sanford, South Carolina
Curtis Clawson, Florida
                   Brendan P. Shields, Staff Director
                   Joan O'Hara, Acting Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                I. Lanier Avant, Minority Staff Director
                
                
                
                
                               (II)
                               
                               
                               
                
                
                
                
                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Chairman, Committee on Homeland 
  Security:
  Oral Statement.................................................     1
  Prepared Statement.............................................     3
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Ranking Member, Committee on 
  Homeland Security:
  Oral Statement.................................................     4
  Prepared Statement.............................................     5
The Honorable Sheila Jackson Lee, a Representative in Congress 
  From the State of Texas:
  Prepared Statement.............................................     7

                                Witness

Hon. Jeh Johnson, Secretary, U.S. Department of Homeland 
  Security:
  Oral Statement.................................................     8
  Prepared Statement.............................................    10

                             For the Record

The Honorable Sheila Jackson Lee, a Representative in Congress 
  From the State of Texas:
  Statement of Mary Meg McCarthy, Executive Director, National 
    Immigrant Justice Center.....................................    33
  Statement of the American Immigration Lawyers Association......    37
  Statement of Laura W. Murphy, Director, and Christopher 
    Rickerd, Policy Counsel, ACLU Washington Legislative Office; 
    Vicki B. Gaubeca, Director, and Brian Erickson, Policy 
    Advocate, the ACLU of New Mexico, Regional Center for Border 
    Rights; Christian Ramirez, Director, Southern Border 
    Communities Coalition; and Ryan Bates, Executive Director, 
    Michigan United, Rich Stolz, Executive Director, OneAmerica, 
    and Steve Choi, Executive Director, New York Immigration 
    Coalition, Northern Borders Coalition........................    39
    

                                Appendix

Questions From Honorable Susan W. Brooks for Honorable Jeh C. 
  Johnson........................................................    59


  OPEN BORDERS: THE IMPACT OF PRESIDENTIAL AMNESTY ON BORDER SECURITY

                              ----------                              


                       Tuesday, December 2, 2014

             U.S. House of Representatives,
                    Committee on Homeland Security,
                                                    Washington, DC.
    The committee met, pursuant to call, at 9:05 a.m., in Room 
311, Cannon House Office Building, Hon. Michael T. McCaul 
[Chairman of the committee] presiding.
    Present: Representatives McCaul, Smith, King, Rogers, 
Miller, Meehan, Duncan, Chaffetz, Palazzo, Barletta, Hudson, 
Brooks, Perry, Sanford, Clawson, Thompson, Sanchez, Jackson 
Lee, Higgins, Keating, Barber, Payne, O'Rourke, Vela, and 
Swalwell.
    Chairman McCaul. The Committee on Homeland Security will 
come to order.
    The committee is meeting today to hear testimony from 
Secretary Jeh Johnson on the administration's recent Executive 
Actions to grant temporary relief to millions of unlawful 
immigrants and the effect such actions will have on the 
security of our Nation's borders.
    I now recognize myself for an opening statement.
    Today we are here to talk about illegal immigration and the 
grave consequences of the administration's recent actions to 
bypass Congress. Immigration reform is an emotional and 
divisive issue; there is no doubt about that. But the 
President's unilateral actions to bypass Congress undermine the 
Constitution and threaten our democracy.
    Let me be clear: Our immigration system is broken, and we 
need to fix it. America has always stood proudly as a beacon 
for hope for millions who are seeking a better life, and we 
should work hard to keep it that way. But regardless of where 
you stand on this issue, there is a right way to do this and 
there is a wrong way, and, unfortunately, the President has 
taken the wrong way.
    In addition, the President has risked breaking something 
much more fundamental, and that is our democratic process. We 
are a Nation of laws. Yet this unprecedented Executive power 
grab undermines the principle that the people, not just one 
man, should be the ultimate decisionmakers in our country's 
most important political matters.
    This action also has poisoned the well here in Washington 
at a time when Americans desperately want their Government to 
work together. We are facing crucial challenges that require 
Congress and the White House to cooperate, from combating 
overseas threats to driving economic growth. By making an end-
run around Congress, the President has deliberately and 
willfully broken the trust that is needed between our branches 
of Government.
    The President knows the damage of these actions. In fact, 
he has said over 20 times in his Presidency that he did not 
have the authority to take Executive Action on immigration and 
that this is, ``not how democracy works.''
    He also said doing so will lead to a surge in more illegal 
immigration. He was right, and it will. History has proven that 
amnesty perpetuates a cycle of illegal entry into this country. 
This was true in the 1980s, and it has proven true under this 
administration's abuse of prosecutorial discretion--a power to 
decide when to prosecute law breakers and when not to, a power 
which should be used narrowly and carefully. This 
administration has done the opposite. They have taken a 
sweeping approach to prosecutorial discretion that makes a 
mockery of the law.
    The consequences are very real. This summer, the 
administration's refusal to enforce our immigration laws 
enticed at least 60,000 unaccompanied children to make the 
perilous journey to our borders. Many traveled to the United 
States under misinformation regarding the administration's 
granting of permisos. We can expect many, many more to do the 
same because of the President's recent actions.
    The lax interior enforcement policies adopted by this 
administration coupled with even the perception of amnesty 
become a powerful magnet that encourages more illegal 
immigration. We essentially tell citizens of other countries: 
``If you come here, you can stay. Don't worry, we don't deport 
you.''
    The reality on the ground is that, unless you commit 
multiple crimes, the chances of your being removed from this 
country are close to zero. This year, the U.S. Border Patrol 
apprehended almost 500,000 individuals along our Southern 
Border, but less than half were deported. Those who remained 
were given notices to appear before an immigration judge, with 
a court date years away, and released into the country. We know 
that the majority will never check back in with the 
authorities.
    If we don't think that message is making its way back to 
Mexico and Central America, we are simply fooling ourselves. We 
will see a wave of illegal immigration because of the 
President's actions.
    At its core, the President's unilateral amnesty plan is 
deeply unfair to the millions who are waiting in line to become 
a part of our great Nation, and it demonstrates reckless 
disregard for America's security. We have a formal immigration 
process for a reason: To promote fairness in allowing people to 
enter the United States and to keep those who will seek to do 
us harm outside of our borders.
    Sadly, the Department of Homeland Security is unprepared to 
handle the coming surge that the President's policies will 
incite. The Border Patrol's resources are already strained as 
immigrants pour across the border, making it difficult to 
identify smugglers, criminals, and potential terrorists.
    We need to reform our immigration laws, but we need to do 
it the right way, and that means starting the process in the 
lawmaking branch of our Government. Congress will address 
immigration reform, but we need to do so in an intelligent way 
and in keeping with the wishes of the American people. The 
majority of Americans do not agree with the President's 
Executive Actions. They want Congress to find a solution, one 
that begins with securing our borders.
    I look forward to hearing from the Secretary, and I hope 
that he will address the serious concerns Congress and the 
American people have about the President's decision. We cannot 
turn a blind eye to the real threats which these actions will 
bring to our country's doorstep.
    [The statement of Chairman McCaul follows:]
                Statement of Chairman Michael T. McCaul
                            December 2, 2014
    Today, we're here to talk about illegal immigration and the grave 
consequences of the administration's recent actions to bypass Congress. 
Immigration reform is an emotional and divisive issue; there is no 
doubt about that. But the President's unilateral actions to bypass 
Congress undermine the Constitution and threaten our democracy.
    Let me be clear: Our immigration system is broken, and we need to 
fix it. America has always stood proudly as a beacon of hope for 
millions who are seeking a better life. And we should work hard to keep 
it that way.
    But regardless of where you stand on this issue, there is a right 
way to do this, and there is a wrong way. And unfortunately the 
President has taken the wrong way.
    In addition, the President has risked breaking something much more 
fundamental: Our democratic process. We are a Nation of laws. Yet this 
unprecedented Executive power grab undermines the principle that the 
people--not just one man--should be the ultimate decision makers on our 
country's most important political matters.
    This action has also ``poisoned the well'' here in Washington at a 
time when Americans desperately want their Government to work together.
    We are facing crucial challenges that require Congress and the 
White House to cooperate, from combating overseas threats to driving 
economic growth. But by making an end-run around Congress, the 
President has deliberately and willfully broken the trust that is 
needed between our branches of Government.
    The President knows the damage of these actions. He has said over 
20 times in his Presidency that he did not have the authority to take 
Executive Action on immigration, and that this is ``not how democracy 
works.'' He also said doing so would, ``lead to a surge in more illegal 
immigration.'' He was right. It will.
    History has proven that amnesty perpetuates a cycle of illegal 
entry into this country. This was true in the 1980s and has proven true 
under this administration's abuse of ``prosecutorial discretion''--a 
power to decide when to prosecute lawbreakers and when not to, a power 
which should be used narrowly and carefully. This administration has 
done the opposite. They've taken a sweeping approach to prosecutorial 
discretion that makes a mockery of the law.
    The consequences are very real. This summer, the administration's 
refusal to enforce our immigration laws enticed at least 60,000 
unaccompanied children to make the perilous journey to our borders.
    Many travelled to the United States under misinformation regarding 
the administration granting of ``permisos.'' We can expect many, many 
more to do the same because of the President's recent actions.
    The lax interior enforcement policies adopted by this 
administration coupled with even the perception of amnesty become a 
powerful magnet that encourages more illegal immigration. We 
essentially tell citizens of other countries if you come here, you can 
stay--don't worry, we won't deport you. The reality on the ground is 
that unless you commit multiple crimes, the chances of your being 
removed from this country are close to zero.
    This year the U.S. Border Patrol apprehended 479,000 individuals 
along the Southern Border but less than half were deported. Those who 
remained were given notices to appear before an immigration judge, with 
a court date years away, and released into the country. We know that 
the majority will never check back in with authorities.
    If we don't think that message is making its way back to Mexico and 
Central America, we are simply fooling ourselves. We will see a wave of 
illegal immigration because of the President's actions.
    At its core, the President's unilateral amnesty plan is deeply 
unfair to the millions who are waiting in line to become a part of our 
great Nation, and it demonstrates reckless disregard for America's 
security. We have a formal immigration process for a reason: To promote 
fairness in allowing people to enter the United States and to keep 
those who will seek to do us harm outside of our borders.
    Sadly, the Department of Homeland Security is unprepared to handle 
the coming surge that the President's policies will incite. The Border 
Patrol's resources are already strained as immigrants pour across the 
border, making it difficult to identify smugglers, criminals, and 
potential terrorists.
    We need to reform our immigration laws, but we need to do it the 
right way. And that means starting the process in the lawmaking branch 
of our Government. Congress will address immigration reform. But we 
need to do so in an intelligent way, and in keeping with the wishes of 
the American people. The majority of Americans do not agree with the 
President's Executive Actions. They want Congress to find a solution--
one that begins with securing our borders.
    I look forward to hearing from the Secretary, and I hope he will 
address the serious concerns Congress and the American people have 
about the President's decision.
    We cannot turn a blind eye to the real threats which these actions 
will bring to our country's doorstep.

    Chairman McCaul. With that, the Chairman now recognizes the 
Ranking Member.
    Mr. Thompson. Thank you, Mr. Chairman, for holding today's 
hearing.
    I would like to thank Secretary Johnson for making the time 
to be here to discuss recently announced Executive Actions on 
immigration and border security. As well as your fifth 
appearance before this committee in your short 12-month period 
shows that you are accessible, and I appreciate it.
    Since 1956, Presidents have granted temporary immigration 
relief to impacted individuals on 39 separate occasions. 
Therefore, it would seem changes outlined by President Obama on 
November 20 are not outside the bounds of Presidential 
authority as provided under our Constitution.
    Approximately 11 million undocumented individuals are 
forced to hide in the shadows, even as they live and work in 
plain sight in communities big and small across our Nation. 
Time and again, the House Republican leadership has been 
unwilling to act to fix our broken immigration system.
    In the face of this crisis and the absence of Congressional 
action, the President acted in a measured way that is likely to 
improve both our Nation's security and economy. Specifically, 
the President announced an establishment of the Deferred Action 
for Parental Accountability program, which delays deportation 
for immigrants who have lived illegally in the United States 
for more than 5 years but have children who are citizens or 
have green cards.
    Contrary to messaging from those who disagree with the 
President and many of his policies unrelated to immigration, 
this deferred action does not provide relief to recent border 
crossers. If the applicant can pass a criminal background check 
and pay a fee, he or she could qualify for a work permit and 
avoid deportation for 3 years at a time. Approximately 4 
million immigrants are expected to qualify for this temporary 
relief.
    This approach to provide deferred enforcement in order to 
keep families intact in light of Congressional failure to 
provide such relief is not novel. The Family Fairness Program, 
implemented by President Reagan and expanded by President 
George H.W. Bush, provided deferred enforcement for close 
family members of individuals legalized by the Immigration 
Reform and Control Act.
    President Obama's directive rightly prioritizes the removal 
of undocumented individuals who have committed serious crimes, 
thus enhancing the safety of our communities.
    I am troubled by the extreme criticism and disdain that 
this temporary and limited set of actions has received by some 
in Congress. The concept of families with working parents and 
children who attend school is consistent with the values we all 
hold. Now, with the President's announcement, this value or 
fabric of America is now being called ``renegade'' and a basis 
for more illegal action.
    A fair criticism may be that vulnerable people in violence-
ridden communities in Central America will be misled by 
enterprising coyotes and smugglers about the scope of 
individuals covered by the President's action. I look forward 
to hearing from Secretary Johnson about planning efforts that 
are being rolled out in anticipation of such misinformation.
    We all know that recent border-crossers would not be 
covered. Even if there is an upsurge based on misinformation, 
Congress has made significant investment in personnel and 
equipment at the Southern Border that should ensure that DHS is 
able to effectively respond to any increases in attempted 
border crossings.
    Let me be clear: The President's Executive Actions are a 
good start. However, there are still many people whom I believe 
deserve such consideration but are left out. Specifically, I 
would point to agricultural workers. The President's Executive 
Action does not provide specific relief to an estimated 
quarter-million of those workers that might be eligible for 
some type of deferred action. More remains to be done to 
address the labor needs for America's farmers. Where the 
Executive Action remains silent, there is an opportunity for 
Congress to legislate.
    Let me close with two thoughts. To those who have said the 
President's actions do not represent the will of the American 
people, I say you need to listen better. Americans, by wide 
margins, believe our immigration system can be fixed in a fair 
and humane way that does not jeopardize our security.
    Second, to those in Congress who have embraced the idea of 
putting the Department of Homeland Security in budgetary limbo 
while ever other Federal agency is funded for fiscal year 2015, 
I say you should really think about the message that sends 
about Congress' commitment to homeland security.
    In closing, it is my hope that Congress will use this 
action as a starting point to legislate permanent fixes to our 
Nation's immigration system and further improve our border 
security. Mr. Chairman, I am willing to work with you 
throughout the remainder of this Congress and the next Congress 
to make these legislative changes happen.
    I yield back.
    [The statement of Mr. Thompson follows:]
             Statement of Ranking Member Bennie G. Thompson
    Since 1956, Presidents have granted temporary immigration relief to 
impacted individuals on 39 separate occasions; therefore, it would seem 
that changes outlined by President Obama on November 20 are not outside 
the bounds of Presidential authority, as provided under our 
Constitution.
    Approximately 11 million undocumented individuals are forced to 
hide in the shadows even as they live and work in plain sight in 
communities big and small across our Nation. Time and again, the House 
Republican Leadership has been unwilling to act to fix our broken 
immigration system. In the face of this crisis and the absence of 
Congressional action, the President acted in a measured way that is 
likely to improve both our Nation's security and economy.
    Specifically, the President announced an establishment of the 
Deferred Action for Parental Accountability Program--which delays 
deportation for immigrants who have lived illegally in the United 
States for more than 5 years but have children who are citizens or have 
green cards.
    Contrary to messaging from those who disagree with the President 
and many of his policies unrelated to immigration, this deferred action 
does not provide relief to recent border crossers. If the applicant can 
pass a criminal background check and pay a fee, he or she could qualify 
for a work permit and avoid deportation for 3 years at a time.
    Approximately 4 million immigrants are expected to qualify for this 
temporary relief. This approach--to provide deferred enforcement in 
order to keep families intact in light of Congressional failure to 
provide such relief--is not novel. The ``Family Fairness'' program 
implemented by President Reagan and expanded by President George H.W. 
Bush provided deferred enforcement for close family members of 
individuals legalized by the Immigration Reform and Control Act. 
President Obama's directive rightly prioritizes the removal of 
undocumented individuals who have committed serious crimes, thus 
enhancing the safety of our communities.
    I am troubled by the extreme criticism and disdain that this 
temporary and limited set of actions has received by some in Congress. 
The concept of families with working parents and children who attend 
school is consistent with values we all hold. Now, with the President's 
announcement this value or fabric of America is now being called 
renegade and a basis for more illegal action.
    A fair criticism may be that vulnerable people in violence-ridden 
communities in Central America will be misled by enterprising 
``coyotes'' and smugglers about the scope of individuals covered by the 
President's actions. I look forward to hearing from Secretary Johnson 
about planning efforts that are being rolled out in anticipation of 
such misinformation. We all know that recent border crossers would not 
be covered.
    Even if there is an upsurge based on such misinformation, Congress 
has made significant investments in personnel and equipment at the 
Southern Border that should ensure that DHS is able to effectively 
respond to any increases in attempted border crossings.
    Let me be clear, the President's Executive Actions are a good 
start. However, there are still many people whom I believe deserve such 
consideration but are being left out. Specifically, I would point to 
agricultural workers.
    The President's Executive Action does not provide specific relief 
to an estimated quarter million of these workers that might be eligible 
for some type of deferred action. More remains to be done to address 
the labor needs of America's farmers. Where the Executive Action 
remains silent, there is an opportunity for Congress to legislate.
    Let me close with two thoughts. To those who have said that the 
President's actions do not represent the will of the American people, I 
say, you need to listen better. Americans, by wide margins, believe our 
immigration system can be fixed in a fair and humane way that does not 
jeopardize our security.
    Second, to those in Congress who have embraced the idea of putting 
the Department of Homeland Security in budgetary limbo while every 
other Federal agency is funded for fiscal year 2015, I say ``you should 
really think about the message that sends about Congress' commitment to 
homeland security.''
    In closing, it is my hope that Congress will use this action as a 
starting point to legislate permanent fixes to our Nation's immigration 
system and further improve our border security. Mr. Chairman, I am 
willing to work with you throughout the remainder of this Congress and 
next Congress to make these legislative changes happen.

    Chairman McCaul. I thank the Ranking Member. Other Members 
are reminded that statements may be submitted for the record.
    [The statement of Hon. Jackson Lee follows:]
               Statement of Honorable Sheila Jackson Lee
                            December 2, 2014
    Good morning and welcome. I would like to begin by thanking 
Chairman McCaul and Ranking Member Thompson for agreeing to convene 
this full committee hearing entitled, ``Open Borders: The Impact of 
Presidential Amnesty on Border Security.''
    This is a very important matter, and as Ranking Member of the 
Homeland Security Border and Maritime Security Subcommittee, as well 
the Representative of the 18th Congressional District of Texas centered 
in Houston and located 300 miles from the Southwest Border. I 
appreciate your leadership in addressing the Department of Homeland 
Security's (DHS) efforts to secure our Nation's borders. Enhancing 
public safety along the Southwest Border remains an enormous priority 
for my Congressional district and the State of Texas.
    I would like to also welcome our distinguished witness: Jeh 
Johnson, Secretary of the Department of Homeland Security.
    The President has taken steps pursuant to his legal authority to 
fix our Nation's broken immigration system. The Executive Action 
prioritizes the deporting of felons, not families, and requires certain 
undocumented immigrants to pass a criminal background check and pay 
their fair share of taxes as they register to temporarily stay in the 
United States without fear of deportation.
    The President's actions will streamline legal immigration to boost 
our economy and will promote naturalization for those who qualify.
    The Executive Actions taken by the President will strengthen border 
security by adding 20,000 more Border Patrol Agents; crack down on 
companies who hire undocumented workers; create an earned path to 
citizenship for undocumented immigrants who pay a fine and taxes, pass 
a background check, learn English and go to the back of the line; and 
boost our economy and keeps families together by cutting red tape to 
simplify our legal immigration process.
    The estimated number of undocumented immigrants in this country 
grew to a high of about 12.2 million in 2006, dropped to around 11.3 
million, and has stopped growing for the first time since the 1980s.
    The number of apprehensions, along our Nation's Southern Border has 
declined significantly; with the number now less than a third of what 
it was 12 years ago and today has reached the lowest level since the 
1970s.
    Immigration reform is good for the Nation and the economy. The 
benefit of immigration to the United States is evident in our National 
history. Immigrants represent the majority of our Nation's PhDs in 
math, computer science, and engineering, and over one-quarter of all 
U.S.-based Nobel laureates over the past 50 years were foreign-born.
    Immigrants are also more than twice as likely as native-born 
Americans to start a business in the United States. They have started 1 
of every 4 American small businesses and high-tech start-ups, and more 
than 40 percent of Fortune 500 companies were founded by immigrants or 
their children.
    The President is asking Congress for a common-sense comprehensive 
immigration reform bill. This committee has already done this in a 
collegial bipartisan way when we drafted H.R. 1417, Border Security 
Results Act, which was passed by the Full Homeland Security Committee 
in May of 2013, and placed on the House Calendar where it has yet to be 
taken up for full House consideration. This bill would go a long way in 
addressing concerns regarding border security.
    The President is offering a common-sense beginning, but only 
Congress can complete the work of comprehensive immigration reform.
    This Executive Action is not a grant of amnesty for those who have 
entered the country unlawfully. It is an opportunity for the United 
States to create a stable environment for undocumented persons to come 
out of the shadows.
    By the authority vested in the office of the President of the 
United States by the Constitution and the laws of this great Nation 
President Obama issued an order to modernize and streamline the U.S. 
immigration system, by directing that the following occur:
   Four million undocumented immigrants with no criminal record 
        and who have lived in the United States for at least 5 years 
        may now apply for a program that allows them to work and 
        protects them from deportation, but does not create a path for 
        legal residency or citizenship;
   An additional 1 million people may seek protection from 
        immediate deportation;
   Through expansion of the existing program for ``Dreamers,'' 
        which President Obama announced previously will no longer be 
        limited by age;
   No changes to the status of farm workers;
   None of the 5 million immigrants who are expected to have 
        their status in the United States altered will receive any 
        legal protections such as Government subsidies for health care 
        under the Affordable Care Act; and
   Children who are American citizens but whose parents are 
        undocumented will have access to Health Insurance, Medicaid, 
        food stamps etc. These benefits will not extend to their non-
        citizen parents.
    President Obama's actions do not create a path to citizenship nor 
do they give legal status to undocumented persons, only Congress can do 
that. President Obama's action on immigration is not new.
    President Obama's actions fall within the scope of his 
Constitutional authority to prioritize Federal resources to focus on 
real threats to our Nation. Executive authority has been used by 
Presidents Dwight D. Eisenhower, Ronald Reagan, and George W. Bush to 
address deficiencies in how the Nation can best address the complex 
issue of immigration when Congress was unwilling or unable to provide a 
legislative solution.
    Past Presidents have used their prosecutorial discretion authority 
to address immigration problems. President Obama has decided to use his 
Presidential prosecutorial discretion to prioritize Federal resources 
as they relate to removal of undocumented persons. Congress only 
provides enough funding to the Department of Homeland Security for 
about 400,000 deportations of undocumented persons each year.
    President Obama's action does not create a path to citizenship nor 
does it prohibit Congress from acting or prevent the next President to 
issue another order to change the prosecutorial discretion outlined by 
this Executive Order.
    Over a year ago, the Senate passed S. 744, Border Security, 
Economic Opportunity, and Immigration Modernization Act and referred it 
to the House for Consideration.
    Today's hearing will allow Members of the committee to receive 
information on what the Department of Homeland Security has done to 
protect our Nation's borders and address the limited resources 
available for identifying undocumented persons for removal.
    I look forward to Secretary Johnson's testimony. Thank you Mr. 
Chairman and I yield back the balance of my time.

    Chairman McCaul. We are pleased here today to have 
Secretary Jeh Johnson back to the committee. As always, we may 
not agree on all the issues, but we do so with civility.
    Mr. Johnson, as many of you know, has a distinguished 
record, both at the Department of Defense and at the Department 
of Justice, and we appreciate your service with the Department 
of Homeland Security.
    With that, you are recognized for an opening statement.

STATEMENT OF HONORABLE JEH JOHNSON, SECRETARY, U.S. DEPARTMENT 
                      OF HOMELAND SECURITY

    Secretary Johnson. Thank you, Chairman McCaul, Ranking 
Member Thompson, committee Members here.
    Let me begin by saying, in the same vein as the Chairman's 
remarks, we won't always agree, we have not always agreed, but 
I do appreciate the friendship and the collegiality that we 
enjoy between individual Members of this committee and their 
staffs and me and my staff.
    This is the 12th time I have testified before Congress in 
11 months, the fifth time before this committee. I feel like I 
know a number of you well.
    On November 20, the President announced a series of 
Executive Actions to begin to fix our immigration system. The 
President views these actions as a first step toward reform of 
the system and continues to count on Congress for the more 
comprehensive reform that only legislative changes can provide.
    The actions we took will begin to fix the system in a 
number of respects.
    To promote border security for the future and to send a 
strong message that our borders are not open to illegal 
migration, we prioritize the removal of those apprehended at 
the border and those who came here illegally after January 1, 
2014, regardless of where they are apprehended.
    We also announced the next steps to strengthen our border 
security efforts as part of our Southern Border Campaign 
Strategy, which I first announced earlier this year.
    To promote public safety, we made clear that those 
convicted of crimes, criminal street gang members, and National 
security threats are also priorities for removal.
    To promote accountability, we encourage those undocumented 
immigrants who have been here for at least 5 years, have sons 
or daughters who are citizens or lawful permanent residents, 
and do not fall into one of our enforcement priorities to come 
out of the shadows, get on the books, and pass National 
security and criminal background checks. After clearing all 
their background checks, these individuals are eligible for 
work authorization and will be able to pay taxes and contribute 
more fully to our economy.
    The reality is that, given our limited resources, these 
people are not--and have not been for years--priorities for 
removal. It is time we acknowledge that and encourage them to 
be held accountable. This is simple common sense.
    To rebuild trust with State and local law enforcement which 
are no longer honoring ICE detainers, we are ending the 
controversial Secure Communities Program as we know it and 
making a fresh start with a new program that fixes existing 
problems.
    To promote U.S. citizenship, we will enable applicants to 
pay the $680 naturalization fee by credit card and expand 
citizenship public awareness.
    To promote the U.S. economy, we will take administrative 
actions to better enable U.S. businesses to hire and retain 
qualified, highly-skilled foreign-born workers.
    The reality is that for decades Presidents have used 
Executive authority to enhance immigration policy. President 
Obama views these actions as a first step toward the reform of 
the system and continues to count on Congress for the more 
comprehensive reform that only changes in law can provide. I 
would like to add to that: I, too, would welcome the 
opportunity to work with Members of this committee on 
comprehensive immigration reform legislation.
    I recommended to the President each of the Homeland 
Security reforms to the immigration system that he has decided 
to pursue. These recommendations were the result of extended 
and candid consultations I had with the leadership of 
Immigration and Customs Enforcement, Customs and Border 
Protection, and U.S. Citizenship and Immigration Services. 
Along the way, I also spoke with members of the workforce who 
implement and enforce the law to hear their views. In my own 
view, any significant change in policy requires close 
consultation with those who administer the system.
    We also consulted a wide range of stakeholders, including 
business and labor leaders, law enforcement officers, religious 
leaders, and Members of Congress from both sides of the aisle. 
We also consulted with the Department of Justice, and we 
received a formal written opinion from the Justice Department's 
Office of Legal Counsel concerning enforcement prioritization 
and deferred action, and that opinion has been made public.
    Thank you for your attention to these remarks. I look 
forward to your questions.
    [The prepared statement of Secretary Johnson follows:]
               Prepared Statement of Hon. Jeh C. Johnson
                            December 2, 2014
    Thank you Chairman McCaul, Ranking Member Thompson, and committee 
Members for the opportunity to testify today.
    On November 20 President Obama announced a series of Executive 
Actions to begin to fix our immigration system. The President views 
these actions as a first step toward reform of the system, and 
continues to count on Congress for the more comprehensive reform that 
only legislative changes can provide.
    The actions we took will begin to fix the system in a number of 
respects.
    To promote border security for the future, and to send a strong 
message that our borders are not open to illegal migration, we 
prioritize the removal of those apprehended at the border and those who 
came here illegally after January 1, 2014, regardless of where they are 
apprehended. We also announced the next steps to strengthen our border 
security efforts as a part of our Southern Border Campaign Strategy, 
which I first announced earlier this year.
    To promote public safety, we make clear that those convicted of 
crimes, criminal street gang members, and National security threats are 
also priorities for removal.
    To promote accountability, we encourage those undocumented 
immigrants who have been here for at least 5 years, have sons or 
daughters who are citizens or lawful permanent residents, and do not 
fall into one of our enforcement priorities, to come out of the 
shadows, get on the books, and pass National security and criminal 
background checks. After clearing all their background checks, these 
individuals are eligible for work authorization and will be able to pay 
taxes and contribute more fully to our economy. The reality is that, 
given our limited resources, these people are not priorities for 
removal--it's time we acknowledge that and encourage them to be held 
accountable. This is simple common sense.
    To rebuild trust with State and local law enforcement which are no 
longer honoring ICE detainers, we are ending the controversial Secure 
Communities program as we know it, and making a fresh start with a new 
program that fixes existing problems.
    To promote U.S. citizenship, we will enable applicants to pay the 
$680 naturalization fee by credit card and expand citizenship public 
awareness.
    To promote the U.S. economy, we will take administrative actions to 
better enable U.S. businesses to hire and retain qualified, highly-
skilled foreign-born workers.
    The reality is that, for decades, Presidents have used Executive 
authority to enhance immigration policy. President Obama views these 
actions as a first step toward the reform of the system, and continues 
to count on Congress for the more comprehensive reform that only 
changes in law can provide.
    I recommended to the President each of the Homeland Security 
reforms to the immigration system that he has decided to pursue. These 
recommendations were the result of extended and candid consultations I 
had with the leadership of Immigration and Customs Enforcement (ICE), 
Customs and Border Protection (CBP) and U.S. Citizenship and 
Immigration Services (USCIS). Along the way, I also spoke with members 
of the workforce who implement and enforce the law to hear their views. 
In my own view, any significant change in policy requires close 
consultation with those who administer the system. We also consulted a 
wide range of stakeholders, including business and labor leaders, law 
enforcement officers, religious leaders, and Members of Congress from 
both sides of the aisle. We also consulted with the Department of 
Justice, and we received a formal, written opinion from the Justice 
Department's Office of Legal Counsel concerning enforcement 
prioritization and deferred action, and that opinion has been made 
public.
    Here is a summary of our Executive Actions:
    Strengthening border security. Our Executive Actions emphasize that 
our border is not open to future illegal migration and that those who 
come here illegally will be sent back, unless they qualify for some 
form of humanitarian relief under our laws. The reality is that, over 
the last 15 years spanning the Clinton, Bush, and Obama 
administrations, much has been done to improve border security. But, 
through the Executive Actions announced last week, we can and will do 
more.
    Today, we have unprecedented levels of border security resources--
personnel, equipment, and technology--along our Southwest Border. This 
investment has produced significant positive results. Apprehensions 
have declined from over 1.6 million in 2000 to around 400,000 a year--
the lowest rate since the 1970s. According to Pew Research, the number 
of undocumented immigrants in this country grew to a high of 12.2 
million in 2007 and has remained, after a slight drop, at about 11.3 
million ever since. That means this population has stopped growing for 
the first time since the 1980s, and over half of these individuals have 
been in the United States for 13 years.
    Without a doubt, we had a setback this summer. We saw an 
unprecedented spike in illegal migration into South Texas--from 
Guatemala, Honduras, and El Salvador. And as everyone knows, it 
consisted of large numbers of unaccompanied children and adults with 
children. We responded with more security and law enforcement 
resources; more processing centers; more detention space; more Border 
Patrol Agents in the Rio Grande Valley; more prosecution of criminal 
smuggling organizations; an aggressive public message campaign; 
engagement of Central American leaders by the President and the Vice 
President; and increased interdiction efforts by the government of 
Mexico. And, since the spring, the numbers of unaccompanied children 
crossing the Southern Border illegally have gone down considerably: 
May-10,578; June-10,620; July-5,499; August-3,138; September-2,426; 
October-2,529.
    However, we are not finished with the work of securing our border. 
We can and will do more--that's a critical component of the President's 
Executive Actions.
    We will build upon the border security infrastructure we put in 
place last summer. We announced several days ago the opening of another 
detention facility for adults with children in Dilley, Texas, that has 
the capability to detain over 2,000 individuals. At the same time, we 
will close the smaller, temporary facility for adults with children at 
Artesia, New Mexico. We are developing a ``Southern Border Campaign 
Strategy'' to fundamentally alter the way in which we marshal resources 
to the border under the direction of three new Department task forces. 
They will follow a focused risk-based strategy, with the overarching 
goals of enforcing our immigration laws and interdicting individuals 
seeking to illegally cross land, sea, and air borders. These actions 
are designed to send a clear message: In the future, those who attempt 
to illegally cross our borders will be sent back.
    Creating new and clearer enforcement prioritization policies.--This 
new policy will also have a strong border security component to it, in 
addition to prioritizing for removal public safety and National 
security threats. Virtually every law enforcement agency engages in 
prosecutorial discretion. With the finite resources an agency has to 
enforce the law, it must prioritize use of those resources. To this 
end, DHS will implement a new and clearer enforcement and removal 
policy. The new policy places: (i) Top priority on National security 
threats, convicted felons, criminal gang participants, and illegal 
entrants apprehended at the border; (ii) second-tier priority on those 
convicted of significant or multiple misdemeanors and those who entered 
or re-entered this country unlawfully after January 1, 2014--regardless 
of whether they are apprehended at the border--or significantly abused 
the visa or visa waiver programs; and (iii) the lowest priority are 
those who are non-criminals but who have failed to abide by a final 
order of removal issued on or after January 1, 2014.
    Giving people the opportunity to be held accountable.--The reality 
is that, undocumented immigrants who have been in this country for 
years, raising American families and developing ties to the community. 
Many of these individuals have committed no crimes and are not 
enforcement priorities. It is time that we acknowledge this as a matter 
of official policy and encourage eligible individuals to come out of 
the shadows, submit to criminal and National security background 
checks, and be held accountable.
    We will therefore offer, on a case-by-case basis, deferred action 
to individuals who: (i) Are not removal priorities under our new 
policy, (ii) have been in this country at least 5 years, (iii) have 
sons or daughters who are U.S. citizens or lawful permanent residents, 
and (iv) present no other factors that would make a grant of deferred 
action inappropriate. The reality is that our finite resources will not 
and should not be expanded to remove these people. We are also amending 
eligibility for the Deferred Action for Childhood Arrivals (DACA) 
program. At present, eligibility is limited to those who were under 31 
years of age on June 15, 2012, entered the United States before June 
15, 2007, and were under 16 years old when they entered. We will amend 
eligibility for DACA to cover all undocumented immigrants who entered 
the United States before the age of 16, not limited to those born after 
June 15, 1981. We are also adjusting the cut-off date from June 15, 
2007 to January 1, 2010 and expanding the period of work authorization 
from 2 years to 3 years.
    President Obama's administration is not the first to undertake such 
actions. In fact, the concept of deferred action is an established, 
long-standing administrative mechanism dating back decades, and it is 
one of a number of similar mechanisms administrations have used to 
grant temporary immigration relief for humanitarian and other reasons. 
For example, Presidents Reagan and Bush authorized Executive Action to 
shield undocumented children and spouses who did not qualify for 
legalization under the Immigration Reform and Control Act of 1986. This 
``Family Fairness Program'' used a form of relief known at the time as 
``indefinite voluntary departure,'' which is similar to the deferred 
action authority we use today.
    Fixing Secure Communities.--We will end the Secure Communities 
program as we know it. The overarching goal of the program is a good 
one, but it has attracted wide-spread criticism in its implementation 
and has been embroiled in litigation. Accordingly, we will replace it 
with a new ``Priority Enforcement Program'' that closely and clearly 
reflects DHS's new top enforcement priorities. The program will 
continue to rely on fingerprint-based biometric data submitted during 
bookings by State and local law enforcement agencies but will, for the 
most part, limit the circumstances under which DHS will seek an 
individual in the custody of State and local law enforcement--
specifically, only when an individual has been convicted of certain 
offenses listed in Priorities 1 and 2 of our new enforcement priorities 
outlined above.
    Pay reform for ICE ERO officers.--We will conduct an expeditious 
review of personnel reforms for Immigration and Customs Enforcement 
(ICE) officers engaged in removal operations, to bring their job 
classifications and pay coverage in line with other law enforcement 
personnel, and pursue regulations and legislation to address these 
issues.
    Extending the provisional waiver program to promote family unity.--
The provisional waiver program we announced in January 2013 for 
undocumented spouses and children of U.S. citizens will be expanded--to 
include the spouses and children of lawful permanent residents, as well 
as the adult children of U.S. citizens and lawful permanent residents. 
At the same time, we will clarify the ``extreme hardship'' standard 
that must be met to obtain the provisional waiver.
    Supporting military families.--We will work with the Department of 
Defense to address the availability of parole-in-place and deferred 
action, on a case-by-case basis, for the spouses, parents, and children 
of U.S. citizens or lawful permanent residents who seek to enlist in 
the U.S. Armed Forces.
    Increasing access to U.S. citizenship.--We will undertake options 
to promote and increase access to naturalization and consider 
innovative ways to address barriers that may impede such access, 
including for those who lack resources to pay application fees. To 
enhance access to U.S. citizenship, we will: (i) Permit the use of 
credit cards as a payment option, and (ii) enhance public awareness 
around citizenship. USCIS will also include the feasibility of a 
partial fee waiver as part of its next biennial fee study.
    Supporting U.S. business and high-skilled workers.--Finally, DHS 
will take a number of administrative actions to better enable U.S. 
businesses to hire and retain qualified, highly-skilled foreign-born 
workers. For example, because our immigration system suffers from 
extremely long waits for green cards, we will amend current regulations 
and make other administrative changes to provide needed flexibility to 
workers with approved employment-based green card petitions.
    Overall, the Executive Actions the President announced last week 
will not only bolster our border security, they will promote family 
unity, increase access to U.S. citizenship, grow and strengthen the 
competitiveness of the U.S. economy, and create jobs, particularly in 
the high-skilled labor sectors.
    Again, the President views these actions as a first step toward the 
reform of our immigration system and he continues to count on Congress 
for the more comprehensive reform that only legislative changes can 
provide. In the mean time, we will use our Executive authority to fix 
as much of our broken immigration system as possible.
    I look forward to answering your questions.

    Chairman McCaul. I thank the Secretary.
    The Chairman recognizes himself for 5 minutes for 
questions.
    I would have to echo again, in my opening statement, there 
is a right way to do this and a wrong way. Obviously, I 
disagree with the President's approach in this case. Presidents 
Reagan and Bush worked with the Congress. Congress passed 
legislation that the Presidents were implementing--a very 
strong distinction from the case that we have today.
    My question--I have several questions. One, first, is the 
President said over 20 times that he did not have the legal 
authority to do this, to take this Executive Action, and that 
this is not how a democracy works. Do you agree with that prior 
statement?
    Secretary Johnson. Chairman, I know from 30 years as a 
lawyer that when someone paraphrases remarks from somebody I 
want to see the full Q&A, I want to see the full context to 
know exactly what the person said.
    I have looked at various excerpts of remarks by the 
President concerning his legal authority to act, and I do not 
believe that what we have done is inconsistent with that. In 
fact, we spent a lot of time with lawyers, and we spent a lot 
of time with DOJ's Office of Legal Counsel. They wrote what is, 
in my judgment, a very thoughtful 30-page public opinion on the 
available legal authority to act to fix----
    Chairman McCaul. I have no doubt about your actions after 
the election on this issue, but I will say I will be happy to 
provide you with the written statements that I have personally 
read to your office. It is confusing, and it poses a bit of 
hypocrisy, I think, to the American people because then, after 
the election, he reversed his course. After the election, he 
says that now he does have the legal authority to move forward.
    So who should we believe--the President before the election 
who said he didn't have legal authority to take this action or 
the President after the election who says that he does have the 
authority to take this Executive Action?
    Secretary Johnson. Congressman, what I know is we spent 
months developing these reforms, and we spent a lot of time 
with lawyers--very close consultation with lawyers. There were 
some things that they told us they thought we did not have the 
legal authority to do, which is reflected in the OLC opinion, 
and there are things they told us very clearly that we did have 
the legal authority to do.
    The analysis was very thoughtful, very time-consuming, and 
very extensive. I am satisfied, as a lawyer myself and the 
person who has to come here and defend these actions, that what 
we have done is well within our existing legal authority.
    Chairman McCaul. Note, I have no doubt with respect to your 
integrity, but I think the timing of these statements makes it 
look more political to me, that this is a political decision 
rather than a policy decision. I know you have run this through 
all the legal traps, but I think that what we are concerned 
about are these prior statements that he didn't have legal 
authority and now he does. So perhaps he wasn't following the 
correct legal advice at one juncture or the other.
    Did he get the right political or legal advice before the 
elections or after? Because he has changed his tune on this, 
and I think that is what is so confusing to Members of Congress 
and the American people about the authenticity of this 
President's decision.
    Secretary Johnson. Well, you refer to timing. I originally 
received an assignment to look at our authority to take 
Executive Action in the spring, and we began to develop reforms 
in the spring. We were urged by many in Congress to wait, and 
so we waited until the summer. We got to the summer; we were 
urged then to wait till late summer, which we did.
    Once we knew the Speaker was not going to be able to 
marshal the votes in the House of Representatives for reform, 
we decided we were going to act in late summer. Then we were 
urged to wait till after the mid-terms, which we have done.
    So we have waited a considerable amount of time, more 
than----
    Chairman McCaul. My time is limited. I know you have, but 
it has undermined our Constitutional principles and our 
democracy by bypassing Congress.
    He also stated earlier that this could lead to a surge in 
more illegal immigration. Do you agree with that statement by 
the President?
    Secretary Johnson. No. In fact, we prioritize recent 
illegal migrants. We prioritize those who came here illegally 
after January 1, 2014.
    I intend to highlight that fact wherever I go. In fact, I 
am going to our new detention facility in Dilley, Texas, week 
after next to highlight the fact that we have expanded our 
detention capability and recent arrivals illegally are 
priorities for removal. I intend to go to the country of Mexico 
to work with them on their own interdiction efforts.
    So, wherever I go, I intend to highlight the fact that 
these new reforms prioritize recent illegal entrants.
    Chairman McCaul. Again, I just look at history. In 1986, 
the amnesty law was passed, and it led to a wave of illegal 
immigration. I look at DACA. I had 60,000 children, 
unaccompanied, crossing my border in Texas through the Rio 
Grande Valley sector.
    As a result of DACA, you can't deny that the traffickers 
are going to message this, now this Executive Action, and 
exploit it. I have had high-level people in the State 
Department tell me this. They are worried about this being 
taken down to the Central American countries and exploited, and 
we are going to see a surge and a wave of illegal immigrations.
    I am telling you, it is going to happen. This Department 
needs to be ready for that, to protect the Nation from it, 
because it is coming. In my judgment, there is no question 
about it.
    The last question is on fraud. Twenty percent of DACA 
applications are denied as fraudulent. We saw that after 1986. 
The 1993 World Trade Center bomber, one of them, had fraudulent 
documentations exploiting the 1986 amnesty law.
    What are you going to do to verify that these people are 
not fraudulently entering the country, including what could be 
security threats to the country?
    Secretary Johnson. Congressman, that is something that I, 
too, am concerned about. Fraudulent applications have the 
potential to undermine the whole process. So, in the 
implementation, in the planning for the implementation, I want 
to be sure that we take a hard look at best practices to avoid 
fraudulent applications, fraudulent misuse of the program. That 
is a priority of mine.
    Chairman McCaul. Well, we look forward to working with you 
on that.
    With that, now the Chairman recognizes the Ranking Member 
for questions.
    Mr. Thompson. Thank you, Mr. Chairman.
    Mr. Secretary, there are striking similarities between 
President Obama's Executive Action and those similar actions 
taken by President Reagan and President George H.W. Bush on 
addressing this.
    Your statement to this committee is that the Department of 
Justice has provided authority by which the President is 
acting. Are you comfortable with that? Or did you participate 
after the issuance of that authority in the development of a 
recommendation to the President?
    Secretary Johnson. Yes, sir.
    Let me add this. Whenever I assess a legal question, both 
as a lawyer for the Department of Defense and now as a Cabinet 
Secretary, and the viability of a legal issue, I welcome a 
thorough opinion like the one we have from OLC, but I also ask 
myself, could I defend that action before a committee of 
Congress if called upon to do so? I am fully comfortable that 
we have the legal authority to push forward these reforms in 
particular.
    Specifically with regard to deferred action, that is an 
authority that Presidents have used for decades, as you have 
been pointed out, in various different forms. That is noted in 
the OLC opinion. So I am fully comfortable that deferred action 
is an inherent Executive branch authority that can and should 
be used from time to time, and we have done so here.
    Mr. Thompson. Well, I would like to add to that, in those 
other actions, Congress had not moved forward, and that was why 
President Reagan and George H.W. Bush did pursue the Executive 
Order route, because of the inaction of Congress.
    So, while there are differences of opinion, I don't think 
there is a question that we have not done our job as Members of 
Congress, and the problem gets worse. Those 11 million people 
who are here we have to address.
    Another issue that I am concerned about, Mr. Secretary: The 
Department's Unity of Effort. How will the Southern Border 
campaign address the challenges around that?
    Secretary Johnson. The Southern Border campaign strategy 
that we are developing is an initiative to bring to bear all of 
the Department's resources in a particular region of the 
country on border security. We are, in my judgment, too 
stovepiped in that approach. CBP ICE, CIS, FEMA, the Coast 
Guard, we are too stovepiped, and we need to bring a more 
comprehensive strategic approach to it.
    So what we are doing is creating two regional task forces--
Joint Task Force West, Joint Task Force East--to focus on 
maritime border security in the Southeast, to focus on border 
security in the Southwest. I expect to announce the new leaders 
of those task forces very soon, and we are developing a time 
line for getting this done.
    I issued, as part of these various directives here, a 
directive devoted toward the Southern Border campaign strategy 
and set forth here what the goals and lines of effort are to 
be.
    As you know, I think we have received a lot of bipartisan 
support for this effort, and I intend to move forward with it.
    Mr. Thompson. A comment has been made about the number of 
undocumented children coming in recent years. Your Department 
requested supplemental funding to address the needs to work 
with that. Congress did not give you the money.
    Can you continue to maintain the level of support to 
address that issue if Congress continues to refuse to give you 
the money necessary to do that job?
    Secretary Johnson. It will be very difficult.
    We have as part of our fiscal year 2015 budget request a 
request for an additional $750 million. Most of that will go to 
expanded detention capability and resources. We set that up in 
response to the spike in illegal migration last summer, and we 
want to maintain that and we want to add to it.
    So I referred to the new detention facility in Dilley, 
Texas, a moment ago. That is a capacity for up to 2,400 spaces. 
We need to pay for that. But it is a vital aspect of our 
Southern Border security, in my view.
    Frankly, I am disappointed that the Congress has not 
supported us in that vital border-security effort. I hope the 
Congress will act to fund that and to fund the expanded 
flights, the repatriation, that we have developed since last 
summer. We need to pay for these things. I know every Member of 
this committee wants to support and enhance border security, so 
I am urging that Congress act on my request so we can pay for 
it.
    Mr. Thompson. I yield back, Mr. Chairman.
    Chairman McCaul. The Chairman recognizes the gentleman from 
Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Secretary, what do you project to be the number of 
people coming across the border illegally this year?
    Secretary Johnson. The number of people crossing the border 
illegally each year?
    Mr. Smith. Yes. Total number this year, what do you 
project?
    Secretary Johnson. Fiscal year 2014, I believe that total 
apprehensions, which are an indication of total attempts to 
cross the border illegally, is about 479,000, 477,000.
    Mr. Smith. How many people will succeed in actually 
entering without being apprehended, would you guess?
    Secretary Johnson. There is a calculation that is something 
in excess of that number. You add, as I am sure you know, 
apprehensions plus turn-backs plus what we call got-aways, and 
you get an estimate for total illegal migration.
    Mr. Smith. Right.
    Secretary Johnson. I believe--but I would be happy to 
provide this number to you, what our Border Patrol's best 
estimate is--but I believe it is some percentage in excess of 
the 477,000, 479,000.
    Mr. Smith. Right. That is what I have heard. Over half a 
million people will succeed in coming into the United States 
illegally this year.
    If you were to succeed in achieving your goal of 
operational control of the border, what would you like to get 
that number down to? From half a million to what?
    Secretary Johnson. Well, very clearly, sir, I would like to 
see that number come down. In fiscal year 2000, we had 1.6 
million apprehensions----
    Mr. Smith. Right. If I may interrupt you for a minute, what 
are your metrics in determining whether the border is secure or 
not?
    Secretary Johnson. Well, the Border Patrol has metrics, and 
I have asked that they improve upon that. I recently issued a 
directive----
    Mr. Smith. Right.
    Secretary Johnson [continuing]. To better define our border 
metrics and how we should define----
    Mr. Smith. Are there any metrics----
    Secretary Johnson [continuing]. Border security. So that is 
a work in progress, sir.
    Mr. Smith. So you don't have the metrics today to determine 
whether the border is secure?
    Secretary Johnson. The Border Patrol does have metrics, 
which I believe I have shared with various Members of this 
committee. I have asked that they refine that, and they are in 
the process of doing that.
    Mr. Smith. Okay. So, again, I don't think that we have the 
metrics we need to determine whether the border is security or 
not.
    Let me read a sentence from page 3 of your statement today. 
``Our Executive Actions emphasize that our border is not open 
to future illegal immigration and that those who come here 
illegally will be sent back unless they qualify for some form 
of humanitarian relief under our laws.''
    Is it true, though, that the Department of Homeland 
Security is already releasing illegal immigrants from ICE 
custody or not?
    Secretary Johnson. I am sorry. What was the last part of 
that question?
    Mr. Smith. Is the Department releasing illegal immigrants 
now from ICE custody instead of sending them home?
    Secretary Johnson. I believe that we have a number of those 
who are released on bond, if I understand your question. 
Through a directive, I recently asked ICE to have a higher-
level approval authority for when that happens.
    Mr. Smith. But, again, to put that in simple language, ICE 
is releasing individuals who are in the country illegally, 
which is contrary to your statement that they would be sent 
home.
    It also seems to me contradicting your statement is the 
fact that very few individuals who have entered the country 
illegally who have not, in your terms, committed other serious 
crimes are going to be sent home. It is going to be a very, 
very small fraction; it may be 1 or 2 percent.
    So I don't think your statement here is true, to say that 
those who come here illegally will be sent back. It is actually 
a very small subset of those who come into the country 
illegally.
    Secretary Johnson. Well, let me say two things, sir.
    During the summer, we dramatically reduced the repatriation 
time for adults from 33 down to 4 days.
    Mr. Smith. Yeah.
    Secretary Johnson. We have built added detention space for 
family units, which I am hoping this Congress will support.
    Mr. Smith. That is nice, but that is not answering my 
question. Once again, you are not going to be sending people 
back home just because they are in the country illegally. In 
fact, I think you have just admitted ICE is already releasing 
individuals who could be returned home but are not being 
returned home.
    Furthermore, I think you are also releasing individuals who 
have been convicted of crimes in the United States and putting 
them back out on our streets and in our communities.
    Do you want to estimate how many thousands of people are 
being released who are criminal aliens? In the last several 
years, I think it totaled 30,000 people. Do you have any idea 
what it might be this year?
    Secretary Johnson. The issue of release of those convicted 
of crimes is one that I have focused on for the last several 
months. So what I have directed to ICE is that there be a 
higher-level approval authority for a circumstance when 
somebody with a criminal record is released from immigration 
detention on bond.
    I have also directed that a release of somebody with a 
criminal record should not occur because of fiscal constraints, 
and we will find a way to pay for that.
    Mr. Smith. I hope you can improve the situation because, as 
I say, right now you are releasing criminal aliens and you are 
releasing individuals who should be sent home. I don't think 
that is the way our laws should be enforced.
    Thank you, Mr. Chairman. Yield back.
    Chairman McCaul. The Chairman now recognizes the gentlelady 
from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman and to the Ranking Member, 
again, let me thank you for this hearing. This is the important 
work of the United States Congress, is unbiased fact-finding.
    Secretary, again, thank you for your service and the 
importance of your related service in the Department of Defense 
and, as well, your knowledge and work with the U.S. Department 
of Justice.
    I, frankly, believe that we can clarify the President's 
comments, and he was, in fact, extremely consistent. I have a 
series of questions.
    As I understand the Executive Order, it does not confer 
immigration status, nor does it confer a pathway to 
citizenship. Is that correct?
    Secretary Johnson. Correct.
    Ms. Jackson Lee. In my interpretation, the President's 
remarks over the years has been his lack of authority to confer 
immigration status or citizenship--my interpretation, but I 
think it would be documented by his words. You are telling us 
today that in the Executive Order you nor the President has 
done that.
    Secretary Johnson. Deferred action does not grant legal 
status in this country.
    Ms. Jackson Lee. Or a pathway to citizenship.
    Secretary Johnson. Or a green card or a pathway to 
citizenship.
    Ms. Jackson Lee. Let me move on, Mr. Secretary, to put into 
the record these words: ``A comprehensive approach [to 
immigration reform]''--and that is in parens--``is long 
overdue, and I am confident that the President, myself, and 
others can find common ground to take care of this issue once 
and for all.'' Now, those were the words of Speaker Boehner, 
which I took literally, in 2012.
    To date, this Congress has not placed--this House has not 
placed on the floor of the House one single immigration bill 
that responds to what I thought were welcoming words by the 
Speaker. We have not had an up-or-down vote.
    In this committee, which I want to congratulate, the 
Chairman and the Ranking Member have worked in a bipartisan 
manner, my subcommittee Chairwoman and myself, and we have 
passed H.R. 1417, a border-security legislative initiative. It 
has never seen a day on the floor of the House to provide an 
up-or-down vote.
    My questions and concerns would be our interpretation. 
President Reagan signed into law in 1986 a bill that many 
people tried to muffle their words but they use the word 
``amnesty.'' I would make the argument that President Reagan 
saw a humanitarian crisis and decided to act. In the Phoenix 
case in 2012, Justice Roberts said that Presidents, in addition 
to the Executive Order, have a right to humanitarian relief.
    So let me pursue this questioning regarding the DACA and 
the issue that this may work to cause border crosses as a 
result of this announcement.
    Could you just quickly point out that DACA relief deals 
with existing persons here in the United States? One other 
aspect is to expand the time frame from 2 to 3 years. Could you 
quickly answer that?
    Why don't I just give you this other question so that we 
won't be delayed with respect to the other question?
    I have always thought Secure Communities have had a legal 
and political issue. You have streamlined Secure Communities. 
Let me say that my law enforcement officers locally have said 
it is problematic. So, in your prioritization of terrorists and 
others, you have streamlined that.
    I would like to also indicate in your new facility that I 
am very interested in in Dilley, Texas, that it will be 
accommodating and with the right kinds of resources for family 
and children.
    If you would answer those questions, Mr. Secretary.
    Secretary Johnson. Yes, ma'am.
    The current DACA program is for those who have been here 
since June 2007, which is almost 7 years--over 7 years. You 
have to have been here over 7 years, come here under age 16, 
and have been born after 1981.
    We revised the criteria by rolling back the cut-off from 
2007 to 2010, we removed the birthday limitation from post-1981 
to any time, and we have made the eligibility for the temporary 
period 3 years instead of 2 years.
    With regard to the Dilley facility that we are opening up, 
I have sent my own staff, my own lawyers, down there to ensure 
that the conditions are adequate for family units. That is 
something that I am committed to ensuring.
    Ms. Jackson Lee. Secure Communities that you have 
streamlined, which have really rounded up mothers and fathers 
and people who have are no threat to the United States of 
America.
    Secretary Johnson. I support the goal of Secure 
Communities. The goal of Secure Communities is to get at 
criminals so they can be put in removal----
    Ms. Jackson Lee. Absolutely.
    Secretary Johnson. The program, as you know, was becoming 
legally and politically controversial, mayors and Governors 
signing laws and executive orders prohibiting their law 
enforcement from working with ours on this. So I want to fresh 
start so that we can better enforce public safety and removing 
criminals.
    Ms. Jackson Lee. I thank you.
    Mr. Chairman, as I yield back, I just want to say that, in 
an article in our local newspaper, a mother who had used a 
nanny for a number of years who had been in this country for 13 
years, dependent, as many mothers across America are, on child 
care in the house, she was celebrating--not politically, 
Democrats, Republicans--the opportunity for her nanny to become 
in some way statused to stay in this country and to do good 
work and to protect her children.
    I yield back.
    Chairman McCaul. The Chairman recognizes Mr. Rogers from 
Alabama.
    Mr. Rogers. Thank you, Chairman.
    Thank you, Mr. Johnson, for your service and for being 
here.
    Earlier this year, you testified before this committee when 
we had a bunch of younger people coming across the border 
illegally. During that hearing, I asked you, when we were 
talking about the reason why they wouldn't be removed within 24 
hours like we do adult illegal aliens coming across the border, 
you made the point of saying, statutorily, the Government is 
required to allow these children to go through or these younger 
people to go through a hearing process and that that had to be 
complied with.
    My inquiry to you was: Aren't these exigent circumstances? 
You said yes. I said, well, under those circumstances, can't 
the President write an Executive Order that would allow you to 
go ahead and remove those younger people like we do adults? You 
said the President doesn't have that authority to ignore a 
statute by Executive Order.
    Isn't it true that our current statutory law requires that 
these people that are covered under this Executive Order be 
removed from the country?
    Secretary Johnson. I recall that exchange, and I recall 
that the particular words, ``extraordinary circumstances'' or 
``exigent circumstances,'' whatever was in the law, could not 
be read as broadly as to permit voluntary departure and 
basically obviate the entire statute. That was the reading of 
the statute that I had at the time.
    I do not believe, to the extent this is your question, that 
that is inconsistent with anything we have done and announced 
week before last.
    Mr. Rogers. I disagree with you. The statue is very clear 
at present that these illegals who are in this country are to 
be removed once they are located.
    My next question: You talked about how the people are going 
to be defined under this Executive Order, by being here a 
certain number of years or the age or whatever. How do you 
determine that how they are presenting themselves is accurate?
    For example, if they say, ``I have been here 7 years,'' how 
do you get them to prove it, and how do you know that the way 
they prove it is valid?
    For example, if they say, ``Well, I have been living at 
this address for the last 7 years, and here is the power bill 
over that period of time,'' and the power bill is in another 
person's name, and they say, ``Look, but I rent from that 
person,'' and that person says, ``Oh, yeah,'' and it is a 
complete fabrication, how do you prove the residency is 
accurate when they present themselves to you?
    Secretary Johnson. Good question. The onus will be on the 
applicant to demonstrate that they have lived in this country 
continuously for the 5-year period. So the onus is on the 
applicant to come forward with something that satisfies the 
immigration officer, the examining officer, that they have, in 
fact, lived in this country.
    I do not believe that that will be as simple as, you know, 
``Take my word for it.'' There will have to be some sort of 
documented proof. That will be developed in the implementation 
process by CIS.
    Mr. Rogers. Well, I think you acknowledged from an earlier 
question, this is an area that is going to be wrought with 
fraud. All sorts of lies and exploitation are going to be 
driven to this point. I think it is going to be impossible for 
you all to be able to determine who, in fact, qualifies under 
this very broad and illegal Executive Order.
    Let me ask you this question: Do you think that the people 
that are going to fall into this category are going to be able 
to draw Medicare and Social Security and other public benefits?
    Secretary Johnson. People who qualify for deferred action 
are lawfully present, but they do not have a lawful status like 
lawful permanent resident or citizen. One of the virtues, I 
think, of accountability is you give people a work 
authorization and then they pay taxes on the books. Part of the 
taxes they would pay, as I understand it, would be a deduction 
for Social Security.
    Mr. Rogers. So the answer is, yes, they will be able to 
qualify----
    Secretary Johnson. They will not be eligible for public 
benefits of the type that most people would receive----
    Mr. Rogers. But Medicare and Social Security, they would.
    Secretary Johnson. You would generally, as I understand it, 
be eligible, if you are around long enough, to get back what 
you put in, what you invested originally, but not----
    Mr. Rogers. So the answer is yes.
    Secretary Johnson [continuing]. The normal public benefits 
we would think of.
    Mr. Rogers. Well, participating in Medicare and Social 
Security, both of which are struggling financially through 
solvency, to have this added burden I think is irresponsible.
    Now, you made a point about being given documentation for a 
work permit. Is that accurate? This program will issue 
affirmatively a document to an illegal saying they have a legal 
status of some sort?
    Secretary Johnson. As a separate matter, those who apply 
for deferred action can also apply for a work authorization, 
which is not a green card. It is a separate form of work 
authorization that the Secretary of Homeland Security has the 
authority to provide.
    Mr. Rogers. But it will be a legal status of some sort.
    Secretary Johnson. They can be considered lawfully present 
in the country, just like the DACA kids.
    Mr. Rogers. Do you know how much it will cost for the 
Department of Homeland Security to establish and carry out that 
program of providing that documentation? How expensive will it 
be for you?
    Secretary Johnson. Well, the program will be fee-driven. An 
applicant has to pay a fee. I believe that we are contemplating 
that the fee be $460 per applicant, which is what it is for 
DACA. USCIS is a fee-based organization. It pays for itself.
    Mr. Rogers. Great. Thank you very much.
    I yield back.
    Chairman McCaul. Mr. Keating from Massachusetts.
    Mr. Keating. Thank you, Mr. Chairman. Thank you for having 
the hearing.
    Thank you, Mr. Secretary.
    The title of today's hearing is ``Open Borders: The Impact 
of Presidential Amnesty on Border Security.''
    Before this hearing gets too far, let me be very direct, 
Mr. Secretary. Is this amnesty?
    Secretary Johnson. No. No, in my judgment.
    Mr. Keating. Not legally, and is it even functionally 
amnesty?
    Secretary Johnson. The current situation amounts to 
amnesty. We want people to be accountable, to come out of the 
shadows, get on the books, and pay taxes for the 3-year period 
of deferred action.
    Mr. Keating. Thank you, Mr. Secretary.
    I have another question. Does this represent a permanent 
solution, this Executive Action, in your opinion?
    Secretary Johnson. No.
    Let me say again, I would welcome the opportunity to work 
with the Members of this committee who I know are interested in 
immigration reform on both sides of the aisle. Unfortunately, 
since I have been in office, we have not had a willing partner 
in the House of Representatives.
    But I continue to want to work with Members of this 
committee and Members of the House and Members of the Congress 
on a comprehensive immigration reform piece of legislation. 
Because you are correct; this is not a permanent solution. But 
it is in our existing legal authority to issue to fix the 
broken system, and we feel that we had no choice.
    Mr. Keating. Mr. Secretary, General Barry McCaffrey served 
as a witness during a border-security hearing before this 
committee in the last Congress, and he unequivocally said that 
the lack of comprehensive immigration reform is a direct threat 
to our National security.
    Would you comment on that, please?
    Secretary Johnson. Part of comprehensive immigration reform 
that was passed by the Senate enhanced border security--more 
resources, more technology, more surveillance. I support that, 
and I agree with that. I am hoping that the Congress will act 
on our pending request for added border security on the 
Southwest Border in response to last summer's spike.
    Border security is integral to National security. So I 
agree with that, sir.
    Mr. Keating. Okay.
    I know that there are some limitations on what you can say, 
and most of the Members of this committee have been briefed in 
a Classified manner on this issue. But can you enlighten us and 
the members of the public, too, as to some of the means that 
have been implemented in terms of border security, particularly 
use of satellites to a greater extent and use of military 
assets that we have that we no longer need that can be 
surplussed and used on the border?
    Secretary Johnson. When I go down to the border, the 
Southern Border, and I talk to our Border Patrol about what 
they need, they almost always tell me more vehicles, more 
surveillance, more technology.
    We are moving in the direction of a risk-based strategy to 
border security, homeland security, aviation security, because 
we now have the capability to surveil high-risk areas of the 
border. So we need to continue in that direction. We need more 
technology. That includes aerial surveillance as well as mobile 
surveillance on the ground and a number of other things.
    We have made considerable investments, Congressman, over 
the last 15 years, which has shown some good results, but I 
believe that we can do better and we should continue to do 
better in this regard.
    Mr. Keating. I am disappointed we do not have a vote in the 
House at this stage on the Senate bill or a bill like that.
    But let me ask you another question, my last question. That 
is, there was some discussion by Members that asked you 
questions in terms of your ability to send people back. Can you 
be clear about your fiscal resources to do that right now, what 
you are capable of? Are you capable of sending everyone back?
    If we are really serious about this, how much do we need to 
fund your agency so that we can do what the Members of this 
committee are asking you to do?
    Secretary Johnson. Well, the answer to that question is 
reflected in our current budget request.
    Let me say this. I know that there are some contemplating 
some form of short-term CR for the Department of Homeland 
Security to get us to March. That is, in my judgment, a very 
bad idea for Homeland Security, because during that period of a 
CR we cannot engage in new starts. We have some Homeland 
Security priorities that need to be funded now.
    For example, we are back in a Presidential election cycle. 
I cannot hire new Secret Service agents until I get an 
appropriations bill passed by this Congress, not another CR for 
a couple of months. I cannot continue to fund our enhanced 
detention capability in Texas with another CR that gets me to 
March.
    I need the help of Congress to support and build upon 
border security, which I believe all of you support. So I am 
urging that we act on our current appropriations request now 
for the purpose and for the sake of border security and 
homeland security.
    Mr. Keating. Thank you, Mr. Secretary, for those direct 
answers.
    I yield back.
    Chairman McCaul. The Chairman recognizes Mrs. Miller from 
Michigan.
    Mrs. Miller. Thank you very much, Mr. Chairman.
    Good morning, Mr. Secretary. I appreciate your attendance 
here this morning.
    Obviously, there is a huge divide, certainly in Congress 
and I think out there in the heartland as well, about whether 
or not this is a Constitutional overreach by the President.
    Just listening to your testimony and I read through your 
testimony last night and hearing the answers to some of the 
questions, you obviously had a very heavy, heavy, heavy 
reliance on the OLC's opinion, their 33-page opinion that they 
issued in here through Mr. Holder's Department of Justice.
    I wrote a note when you said that they were very, very 
thorough, but yet it seems to me that the questions that you 
did ask them were specifically tailored. The three questions 
that you asked the OLC were very specific in nature. Perhaps 
there were some questions that you could have asked that you 
did not.
    But I would just--could you tell us the process in which 
you actually asked these three specific questions of the OLC? 
Because I see some of the States are going to be suing. I am 
sure this is going to be a question that is probably determined 
by the courts, and your department had such a heavy reliance on 
them.
    Secretary Johnson. Well, I know from my days at the 
Department of Defense, and now, that the way we typically work 
with OLC is to put to them specific questions. Do we have the 
authority to do X? Do we have the authority to target XYZ 
military objective, for example? So we developed the two or 
three most significant questions that would be part of this 
Executive Action package to be put to OLC for them to consider. 
They came back with this very thorough opinion. I will say 
that, as a lawyer myself, and as someone who has been a lawyer 
for a Government agency, I am fully comfortable with what is in 
here because I know that at the end of the day I am going to 
have to be the one here to defend it.
    Mrs. Miller. Well, if I could, in 2012, when this 
administration created the DACA policy, there is nothing that 
we could find of any opinion from the OLC regarding that. It 
just would seem to be sort of a glaring oversight from there. 
Is there such a memo? If there is such a memo, I guess we would 
like to see that.
    Secretary Johnson. I can only speak to 2014, and we wanted 
to be thorough, so----
    Mrs. Miller. But certainly as you were looking at this you 
would have asked OLC, was there ever a memo in regards to DACA? 
You never asked that question?
    Secretary Johnson. I am not aware of one. Based on 
everything I have asked and been told, I am not aware of one. I 
have not seen one. I wanted to be thorough this time around, 
though.
    Mrs. Miller. Yeah. We think there was a glaring omission 
about that as well. Again, in regards to the OLC, and this will 
be determined in the courts, I think, since, I mean, I 
certainly believe this was a Constitutional overreach by this 
administration. As I say, it appears that some of the States 
are going to court on that.
    I was also taking notes here, Secretary, as you mentioned 
about the fees, a $460 fee. I did some quick math, it is 
probably not right, but times 4 million, $1.84 billion. I am 
just wondering because, again, the OLC is saying you need to do 
it, guarantee it in an individualized case-by-case review, is 
what they are saying. So some of the questions even this 
morning were talking about the limited amount of resources that 
you have.
    So you are going to do 4 million case-by-case reviews. How 
in the world are you going to pay for this? I mean, really, is 
that going to be enough? I mean, right now you have a couple of 
dozen field stations. I am not quite sure of the mechanics of 
actually doing a case-by-case review. I think that will be such 
an important, critical component for the Department so that you 
are not just doing a free-for-all and just rubber stamping and 
really taking a look at all of this. So how do you envision 
that all unfolding as you do a case-by-case review of over 4 
million individuals?
    Secretary Johnson. Well, we have an implementation period, 
a start-up time of 6 months. DACA was 60 days. We determined 
that for this one we needed 6 months to make sure that we get 
it right. We know from the DACA experience that the program, if 
the fee is set at the right level, will pay for itself. So the 
fee for DACA was $460 per applicant, and that is the same fee 
that we will be charging here.
    With regard to the number 4 million, let me say this: 4.1 
million is the estimated potential class of those who would be 
eligible. Not all of those will come forward, as the DACA 
experience shows. The estimated potential class of DACA kids is 
over a million, but the number of those who are actually 
enrolled is somewhere about 600,000 or 700,000. Then of those 
who come forward, some will not qualify because they didn't 
survive the background check or for some other reason; they 
didn't establish proof of living here for 5 years. So the 
number 4.1 is the estimate of the total potential class, but 
not all of those will be enrolled in the program.
    Mrs. Miller. Thank you very much. I think my time has 
expired here.
    Thank you, Mr. Chairman,
    Chairman McCaul. Thank you.
    The Chairman recognizes Mr. Barber from Arizona.
    Mr. Barber. Thank you, Mr. Chairman, for convening this 
hearing.
    Thank you, Mr. Secretary, for being with us today. I want 
to start by just saying how much I appreciate, and I think I am 
joined by other Members on both sides of the aisle of this 
committee, how much I appreciate the forthrightness with which 
you approach the questions and the concerns that we have and 
the leadership you have provided to the Department over almost 
the last year.
    As you know, Mr. Secretary, you visited my district within 
a month of your appointment, your confirmation, and you saw 
first-hand and you heard first-hand from people who live along 
the border, work along the border, what their main issue is. 
They are concerned about people coming here illegally seeking 
work, but they are even more concerned about the traffic of 
drug smugglers and the potential violence that comes with them.
    That is one of the reasons I cosponsored, along with many 
Members of this committee, the Border Security Results Act, 
which passed unanimously here--it is important to stress 
unanimously in this committee--and has yet to be brought to the 
floor. I also cosponsored with almost 200 other Members H.R. 
15, a bipartisan bill that would include the Border Security 
Results Act and the immigration provisions of the Senate bill 
which bipartisan passed the Senate.
    I have said from Day 1 that Congress needs to act, and we 
have failed in our responsibility to act to secure the border 
and to fix the broken immigration system. Because of that 
failure, unfortunately Executive Action has been taken. I 
believe it should be done in concert with Congress, but we have 
failed on our side of the bargain. I fully support the McCain-
Flake bill which is sitting there ready for us to take up.
    Could you, Mr. Secretary, initially my first question is, 
could you address how the Executive Action comports with the 
McCain-Flake bill, particularly as it regards both border 
security and immigration? I know it is not comprehensive, it 
can't be. But to what extent was that bill a template for 
action that can be taken and must be taken to secure the border 
and to fix the system?
    Secretary Johnson. Well, the Executive Actions that we have 
taken are no substitute for S. 744, which does a number of 
things, including an earned path to citizenship. That is what 
is contemplated in the bill. We do not have Executive authority 
to provide an earned path to citizenship. We do have Executive 
authority to provide deferred action for those who have been 
here for years, similar to the bill, who have not committed any 
crimes and who have basically become integrated members of the 
American society, to offer them the opportunity to be 
accountable. That is not citizenship. That is not lawful 
permanent residence. It is simply you are deemed lawfully 
present in the country for a period of time.
    We also are, through Executive Actions, enhancing border 
security in a number of ways. But, again, border security is 
something that is not cost-free. So we have reprioritized 
recent illegal entrants, which we plainly have the authority to 
do, but I need help with resources. I need help on the Southern 
Border in Arizona, in Texas, New Mexico, for added detention 
capability, added surveillance capability, added vehicles, 
added equipment, and I am hoping the Congress will support me 
on that.
    I received your letter about the Eastern Border along 
Arizona, and I plan to, if you will have me, come back early 
next year to Arizona. I owe the ranchers another visit. I want 
to come back to Arizona now with the benefit of a year's 
experience in the job to talk more about border security and 
see what we can do.
    Mr. Barber. I appreciate your willingness to come back and 
look forward to having you there.
    Let me just focus in my remaining time on the issue of 
border security. I think the answers, from my experience, 
having worked on this issue for Congresswoman Giffords and in 
my own right, is pretty straightforward: Border Patrol Agents 
at the border, not 10, 15, 20 miles back under the defense-in-
depth strategy, which I think has failed in that area; more 
horse patrols in the rugged territory; aerostats that will 
allow us to have radar looking down into the mountains to see 
where the smugglers are coming from; more mobile surveillance 
systems at the border. I hope that your task force that you 
have established, the western task force, will look at these 
strategic options and include stakeholders, such as ranchers, 
business people, residents of the communities there, as well as 
others, to make sure we get it right going forward. Thank you.
    Secretary Johnson. Congressman, I can affirm for you, when 
I talk to the Border Patrol myself the one thing they mention 
always, aerostats. So I believe that is a border security 
priority.
    Mr. Barber. Thank you, Mr. Secretary.
    Thank you, Mr. Chairman. I yield back.
    Chairman McCaul. The Chairman recognizes the gentleman from 
South Carolina, Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. Thanks for holding 
this hearing.
    It comes as no surprise that I disagree with the President 
and what he has done with this Executive Action. It is not as 
much the issue of immigration and dealing with undocumented 
workers as it is what he actually did. I think he crossed a 
line with the Constitutional separation of powers. But I hear a 
lot of doublespeak in his speech and in the words that I have 
heard today. I will give you an example. The President said in 
his November 20 speech about this unconstitutional Executive 
Action that, ``Undocumented workers broke our immigration laws, 
and I believe that they must be held accountable.'' That is 
directly from his speech. ``Felons, not families. Criminals, 
not children. Gang members, not a mom who is working hard to 
provide for her kids. We will prioritize, just like law 
enforcement does every day.''
    But in The Hill publication, May 2014, it documented that 
DHS released 68,000 illegal immigrants with criminal 
convictions. ``Immigration and Customs Enforcement officials 
last year released 68,000 illegal immigrants with criminal 
convictions.'' That comes from an end-of-year ``Weekly 
Departures and Detentions Report.'' How do you reconcile, Mr. 
Secretary, what the President said with the actions of the 
agency?
    Secretary Johnson. Well, with regard to those who are 
released from immigration detention, this is something I have 
worked on myself. First of all, there is a Supreme Court case, 
Zadvydas v. Davis, which you may have heard of, which mandates 
that after 6 months if the person is not going to be 
repatriated in the foreseeable future, we have to let them go 
unless----
    Mr. Duncan. So why aren't we repatriating these people?
    Secretary Johnson. Well, that is something that requires a 
willing partner on the other end, which I have had 
conversations with the State Department about to further 
encourage countries to take these people back faster. But if I 
may----
    Mr. Duncan. We had a hearing in the Foreign Affairs 
Committee about that last week, and countries should take 
these. I mean, they are required to take these back. I didn't 
mean to interrupt you.
    Secretary Johnson. If I could finish my sentence, yes, 
thank you. So a number of releases are mandated by law and 
Supreme Court jurisprudence. A number of releases are ordered 
by an immigration judge.
    With regard to the instances where an immigration official 
who works for me releases somebody with a criminal record, what 
I have recently directed is that the approval for that be at a 
higher level of the ICE field officer. I want to know that we 
are applying a consistent standard to those circumstances 
because they may jeopardize public safety. I have also directed 
that a person should not be released because of reasons for 
fiscal constraint, which is what we faced when we had 
sequestration in fiscal year 2013. We will find a way to pay 
for it if we believe somebody should not be released for 
reasons of public safety.
    Mr. Duncan. I think some reports came out, Mr. Secretary, 
that sequestration really had nothing to do with the release of 
folks last year. I could go back and find the documents.
    Let me ask you this. At the end of the year of 2014, how 
many criminal aliens have been released? What will your year-
end ``Weekly Departures and Detention Report'' show for 2014?
    Secretary Johnson. I believe it is less than fiscal year 
2013. Fiscal year 2013, I believe, was 36,000. I think the 
number for fiscal year 2030 will be about 30,000, and I think 
it should be lower.
    Mr. Duncan. So about 30,000, plus or minus, criminal aliens 
have been released?
    Secretary Johnson. Pursuant to legal requirements, orders 
of a judge, I believe it should be lower, which is why I have 
enhanced the approval authority. I have raised the approval 
authority for that.
    Mr. Duncan. I think one of the biggest problems with 
getting any kind of immigration issues passed through the 
United States Congress is a lack of trust of the American 
people in the administration to enforce the laws. They have 
told me, and I know my colleagues have heard it on both sides 
of the aisle, why would you pass another law when the 
administration fails to enforce the current laws that are on 
the books? Why pass another one that is not going to be 
enforced either?
    Then you hear about 68,000 criminal illegal aliens that 
have been released, that further erodes the trust of the 
American people. The American people want to see border 
security. They want to see deportations. They want to see 
enforcement of the law. When they see that 50 percent, 50 
percent, 49 percent I will give you that, of the illegals in 
this country are visa overstays, these are people that we are 
not chasing a footprint in the desert. We know who they are. We 
have got their name. They have had an interview at a consulate 
or an embassy. They came here on a visa. We know who they are. 
That is low-hanging fruit for enforcement.
    So I ask you this: How many of the visa overstays are 
granted immunity through the President's action? Any?
    Secretary Johnson. Off-hand I don't know. I don't know the 
answer to that. Congressman, I will say this, though. I would 
like to see this Congress pass a bill. I would like to work 
with Congress on passing a bill. The President has said that 
would be his preference. The problem is we have no partner in 
Congress.
    Mr. Duncan. I think Congress can pass a bill when the 
American people start regaining trust in the administration to 
actually do their job and enforce the laws that are already on 
the books. I yield back.
    Chairman McCaul. Chairman recognizes Mr. O'Rourke from 
Texas.
    Mr. O'Rourke. Thank you, Mr. Chairman.
    Mr. Secretary, I want to begin by thanking you for your 
accountability. You mentioned that you have been before 
Congress 13 times in the 12 months you have been here, 5 times 
before this committee. Your responsiveness to our requests and 
our questions and your commitment to transparency, I think 
there is a long way to go still within the Department, but in 
the last 12 months we have seen more transparency than we have 
seen in years, and so I really appreciate that.
    Through you I want to thank the President for this very 
difficult decision that he made, a very imperfect decision by 
its very nature, a temporary way to address some of the 
fundamental problems that require a legislative response. But I 
think the status quo is untenable. As you and others have said, 
it amounted to effective amnesty, and we are going to gain some 
accountability, and we are going to bring families and people 
who are working in our communities out of the shadows.
    In a community like mine, El Paso, where 25 percent of the 
population are immigrants, more than 40 percent of the kids who 
live in my community are raised by parents who are immigrants, 
this is going to be a boon. It is going to make us more secure, 
a city that is already the safest city in America today, and I 
tell people not in spite of the number of immigrants who there, 
but in large part because of them. So on behalf of the people I 
represent, I want to thank you and I want to thank the 
President.
    I do, however, want to address an issue that Congressmen 
Smith and Duncan brought up, and that is the release of 
convicted criminals. Senator Cornyn and I wrote a letter to ICE 
and have yet to receive a response, almost a month ago, with 
important questions about the status of those who have been 
released, where they are, how we improve our working with local 
law enforcement so that our police and sheriff's departments 
know when these criminals are released and are able to track 
them and account for them. So I would just appreciate your 
commitment to getting me and Senator Cornyn a response to that.
    Secretary Johnson. One of the things I have directed when 
it comes to releases of those with criminal records is that we 
notify local law enforcement when that happens. I think that 
should be done. I will personally look for your letter, from 
you and Senator Cornyn, and make sure it is responded to 
promptly if it hasn't been already.
    Mr. O'Rourke. Thank you.
    Secretary Johnson. But I will look to make sure. We have a 
general rule of responding within 14 days to Members of 
Congress.
    Mr. O'Rourke. Mr. Secretary, I would like to make a point 
and try to turn it into a question about the President's 
response to our immigration system thus far. I feel like there 
has been this implicit political bargain where there is going 
to be stepped-up enforcement and deportations. I believe this 
President has deported more people from this country than any 
President prior, 2 million at this point, and unfortunately in 
many cases that is breaking up families, which this current 
action I think will help reduce. I think the bargain was that 
in return we were going to be able to gain the trust of both 
parties in Congress and be able to pass meaningful immigration 
reform. That obviously has not happened.
    So I am concerned about some comments that you have made 
and the President has made about stepping up border security, 
about prioritizing the deportation of recent arrivals. I spent 
some time in Artesia, the family detention center there, which 
really has effectively become a deportation machine. I think we 
are short-cutting due process, and I think we threaten to 
return families and have returned families and children into 
some very dangerous situations. Certainly there are those who 
should be deported, but certainly there are those who qualify 
for asylum in our country, and I think we need to honor that 
process. So when you mentioned the facility in Dilley, Texas, I 
want to make sure in our effort to satisfy security concerns we 
don't shorten due process for those.
    Then when it comes to border security, you and others have 
said the border has never been more secure. We are spending $18 
billion a year, 20,000 Border Patrol Agents. In the El Paso 
Sector, the average agent apprehends 4.5 people a year, not in 
a week, not in a month, but for the entire year. So when we 
talk about stepping up border enforcement and this Southern 
Border Campaign Strategy, I would like to know what that means 
for my community. Is that simply repositioning resources along 
the border, as my colleague Congressman Barber said, moving the 
Border Patrol up to the line of the border instead of being set 
back, or are you asking for ultimately more Border Patrol 
Agents, more walls, more of these militarization measures, 
which I think show us that we have a problem with diminishing 
returns right now. You mentioned 1.6 million apprehended in 
2000, not even 500,000 this year. At what point do we have 
enough security on the border?
    Secretary Johnson. First of all, I have been to Artesia 
myself. That facility there, it is being closed. I want to make 
sure that we have adequate ability for effective attorney-
client communications. We made some enhancements there, but it 
is being closed in lieu of a larger facility in Dilley, Texas, 
as I mentioned earlier. I want to make sure that the conditions 
of detention there are adequate and meet the appropriate 
standards.
    I believe that added detention capability on the Southern 
Border, and some disagree with me, is essential to border 
security, and it is essential to border security going forward 
in the future. It is correct that apprehensions are way down 
from where they were 15 years ago, resources are way up. But I 
believe we can do better. So I am not going to sit here and 
declare we have a secure border. We can do better. I think we 
know how to do better. The Congress and the Executive branch 
together can spend the time and effort to do better on border 
security. We have made great strides, but there is more to do.
    Our Southern Border campaign plan is not simply 
repositioning assets. It is to bring a more strategic, 
consolidated approach toward how we secure our border, bringing 
to bear the assets across my Department, not in a stovepipe 
fashion, but in a more coordinated way, region by region, so 
that there is one person in the Southwest who is responsible 
for bringing to bear all of the assets of my Department on 
border security in Arizona, New Mexico, and in Texas.
    Chairman McCaul. The gentleman's time has expired.
    The Chairman now recognizes the incoming Chairman of 
Government Reform and Oversight. Congratulations. Mr. Chaffetz.
    Mr. Chaffetz. Thank you. I thank the Chairman for holding 
this hearing.
    Mr. Secretary, I thank you for being here. I hope you are 
able to convey the love and gratitude for the men and women who 
serve in the Customs and Border Patrol, the ICE Agents who put 
their lives on the line every day for this country. We thank 
them for their service.
    My question for you, Mr. Secretary, is: What do you say to 
someone who believes the President took action to change the 
law?
    Secretary Johnson. We did not change the law. We acted 
within the law.
    Mr. Chaffetz. Can you play the clip?
    This is from November 25. This is the President in Nevada 
talking about this.
    [Video shown. President Obama: ``But what you are not 
paying attention to is the fact that I just took an action to 
change the law.'']
    Mr. Chaffetz. So you say he didn't change the law, but the 
President says he changed the law.
    Secretary Johnson. We acted within existing law. We acted 
within our existing legal authority. Listen, I have been a 
lawyer 30 years. Somebody plays me an eight-word excerpt from a 
broader speech, I know to be suspicious. Okay? That was very 
nice.
    Mr. Chaffetz. It says, I am going to read it back, ``Now, 
you are absolutely right that there have been a significant 
number of deportations. That is true. But what you are not 
paying attention to is the fact I just took action to change 
the law.''' So that is point No. 1.
    Point No. 2, the way the change in the law works, and he 
goes on. He is pretty clear, and he is the President of the 
United States. This is why we have a hard time believing that 
Homeland Security is doing the right thing. I think the 
gentleman from South Carolina made a very good point.
    Let me move to something else real quickly. You and I had 
an interaction the last time you were here about these four 
people with ties to a terrorist organization were caught 
illegally crossing the border into Texas in September. You said 
they would be deported. Did you deport them?
    Secretary Johnson. No, not at this point.
    Mr. Chaffetz. What is the disposition of those four people?
    Secretary Johnson. Two are detained. The two others were 
released by the judge. Not my preference. They were released by 
the judge, and they fled to Canada, and they are seeking asylum 
in Canada.
    Mr. Chaffetz. So you told the world that you were going to 
deport these four people with ties to a terrorist organization. 
That is not what happened. Two of them were released----
    Secretary Johnson. They are in deportation proceedings. An 
immigration judge released two of the four, and they fled to 
Canada. My intent is that they be deported, but two of them are 
in Canada seeking asylum.
    Mr. Chaffetz. Where did these two, where were they 
anticipated going, and where did they actually go?
    Secretary Johnson. I am not sure of their exact 
whereabouts, sir.
    Mr. Chaffetz. But they are currently being held in Canada?
    Secretary Johnson. That is my understanding.
    Mr. Chaffetz. Are you going to ask that they be brought 
back to the United States?
    Secretary Johnson. I don't generally get involved in 
individual immigration cases.
    Mr. Chaffetz. But these people had ties to a terrorist 
organization.
    Secretary Johnson. I think, as we talked about this last 
time, there is some question about whether their affiliation is 
with what one should consider a terrorist organization.
    Mr. Chaffetz. It is a terrorist organization designated by 
the State Department, correct?
    Secretary Johnson. They are or were a member of the Kurdish 
Workers Party.
    Mr. Chaffetz. That is designated by the State Department as 
a terrorist organization, correct?
    Secretary Johnson. I refer you to the State Department.
    Mr. Chaffetz. That is the accurate statement.
    Mr. Secretary, this is the problem, you come and you say, 
you tell the world that you are going to deport these four 
people tied to terror. These are terrorists. You don't. They 
get released. My understanding is they go to Arizona. They go 
to the State of Washington. They cross illegally into Canada. 
They each put up $25,000 bonds. Doesn't that beg a lot of 
questions about what you are doing in deporting criminals? 
These people have terrorist ties.
    I am getting tired of the Democrats with this righteous 
indignation saying that we can't find a Congress we can work 
with. Well, the first 2 years of the Obama administration the 
Democrats had the House, the Senate, and the Presidency, and 
they did nothing on immigration. I sat on the subcommittee. 
They brought Stephen Colbert in to testify. That is how bad it 
was.
    The country made a change. We actually passed an 
immigration bill. It was my bill. Nearly 390 people voted for 
it. It is as bipartisan as it gets. Worked on high-skilled 
immigrants. Dealt with family-based visas. Took the per-country 
cap from 7 percent to 15 percent. It went to the United States 
Senate under Harry Reid. It had nothing happen to it. Nothing.
    So I want to continue to work with this administration. 
There is common ground that can be had. But the President and 
the record is clear. When they had the chance with the House, 
the Senate, and the Presidency, they didn't even introduce a 
bill into the committee, let alone bring it through the 
process.
    I appreciate the time. Yield back.
    Chairman McCaul. The Chairman recognizes Mr. Vela.
    Ms. Jackson Lee. Mr. Chairman, may I offer something into 
the record?
    Chairman McCaul. Yes. The gentlelady is recognized.
    Ms. Jackson Lee. Thank you, Mr. Chairman. There are three 
articles or letters or statements emphasizing the approach of 
the President in deporting felons and not families. One is from 
the National Immigrant Justice Center, dated December 2, 2014; 
from the American Immigration Lawyers Association, dated 
December 2, 2014; and from the Southern Border Communities 
Coalition and the ACLU, dated December 2, 2014. I ask unanimous 
consent to submit these statements into the record.
    Chairman McCaul. Without objection, so ordered.
    [The information follows:]
Statement of Mary Meg McCarthy, Executive Director, National Immigrant 
                             Justice Center
                            December 2, 2014
    Chairman McCaul, Ranking Member Thompson, and Members of the 
Committee on Homeland Security: Drawing upon our vast experience 
working with children and families from Mexico and Central America, 
Heartland Alliance's National Immigrant Justice Center (NIJC) submits 
this testimony to demonstrate that the reason families and children are 
coming to the United States is to escape violence and is not related to 
the President's Executive Action. Pervasive violence and the absence of 
the rule of law in Central America drive migrants to the United States 
in search of safe haven.
    While the President's Executive Action will provide security to 
millions of families with deep roots in the United States, 
unfortunately it puts those fleeing recent violence in Central America 
at greater risk. NIJC welcomes President Obama's recent announcement to 
expand eligibility for the Deferred Action for Childhood Arrivals 
(DACA) program and to extend eligibility for deferred action to parents 
of U.S. citizens and lawful permanent residents to allow them to 
contribute to our communities and economy. This temporary relief should 
allow the administration to refocus immigration enforcement on those 
who pose a National security threat or risk to public safety,\1\ not 
those who come to our borders seeking refuge.
---------------------------------------------------------------------------
    \1\ Memorandum from Secretary Jeh Johnson, ``Policies for the 
Apprehension, Detention, and Removal of Undocumented Immigrants,'' Nov. 
20, 2014, http://www.dhs.gov/sites/default/files/publications/
14_1120_memo_prosecutorial_discretion.pdf.
---------------------------------------------------------------------------
    This testimony will discuss lessons learned from the arrivals of 
children and families from Central America during 2014, including the 
root causes of migration, the need for greater due process protections, 
and the need for improved accountability and oversight of the 
Department of Homeland Security's (DHS) border screening process.
    NIJC is an NGO dedicated to safeguarding the rights of noncitizens. 
With offices in Chicago, Indiana, and Washington, DC, NIJC advocates 
for immigrants, refugees, asylum seekers, and survivors of human 
trafficking through direct legal representation, policy reform, impact 
litigation, and public education. NIJC and its network of 1,500 pro 
bono attorneys provide legal representation to approximately 10,000 
noncitizens annually, including thousands of unaccompanied children. 
NIJC is the largest legal service provider for unaccompanied children 
detained in Illinois, conducting weekly legal screenings and legal 
rights presentations, which provide an overview of the child's legal 
rights and responsibilities in the immigration system, at nine Chicago-
area shelters. Through our direct legal services, we have heard of the 
horrors that force children to leave their parents behind and make 
treacherous journeys in hope of finding refuge in the United States.
    i. violence forces children and families to flee central america
    Growing violence and danger in home countries is the primary reason 
children and families are fleeing their countries and seeking safety in 
the United States. The majority of these new arrivals are from the 
Northern Triangle countries of El Salvador, Guatemala, and Honduras, 
are among the most dangerous countries in the world, particularly for 
women and children. In 2011, El Salvador had the highest rate of 
gender-motivated killing of women in the world, followed by Guatemala 
(third-highest) and Honduras (sixth-highest).\2\ In addition, children 
in these countries face pervasive violence, persecution, and abuse.\3\ 
El Salvador led the world in child murders in 2012 with 27 children 
murdered per 100,000 population.\4\ Overall, the region has the highest 
rate of child homicides in the world.\5\
---------------------------------------------------------------------------
    \2\ Geneva Declaration on Armed Violence and Development, Global 
Burden of Armed Violence 2011, Oct. 2011, http://
www.genevadeclaration.org/fileadmin/docs/GBAV2/GBAV2011_- CH4_rev.pdf.
    \3\ See e.g., Kids in Need of Defense (KIND)/Center for Gender and 
Refugee Studies (CGRS), A Treacherous Journey: Child Migrants 
Navigating the U.S. Immigration System, http://www.usccb.org/about/
migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf; U.S. 
Conference of Catholic Bishops (USCCB), Mission to Central America: The 
Flight of Unaccompanied Children to the United States, 2014, http://
www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-
FINAL-2.pdf; Women's Refugee Commission, Forced from Home: The Lost 
Boys and Girls of Central America, 2012, http://
womensrefugeecommission.org/forced-from-home-press-kit; United Nations 
High Commissioner for Refugees (UNHCR), Children on the Run, 2014, 
http://www.unhcrwashington.org/children/reports.
    \4\ United Nations International Children's Emergency Fund 
(UNICEF), Hidden in Plain Sight: A statistical analysis of violence 
against children, Sept. 2014, http://files.unicef.org/publications/
files/Hidden_in_plain_sight_statistical_analysis_EN_3_Sept_2014.pdf, p. 
36.
    \5\ Id.

``One of those children is Alex, a 13-year-old boy and NIJC client who 
was murdered for refusing to join a gang in Guatemala. A year after his 
murder, his friend Oscar (pseudonym) fled to the United States to 
escape gang violence. For the past two years, the same gang that killed 
Alex had been threatening to kill Oscar if he did not join the gang. 
Initially, the gang tried to force Oscar to do things he did not want 
to do, like use drugs. As time went on, their efforts to force Oscar to 
join the gang escalated, but Oscar could not go to the police for help 
because the gang threatened to kill his family. Oscar decided to leave 
after a friend told him that the gang had set a date and time to kill 
him. He came to the United States to seek refuge with his father, who 
---------------------------------------------------------------------------
has lived in the United States for nearly 10 years.''

    Oscar is one of many children targeted by gangs who cannot obtain 
police protection because violence in these countries is perpetrated 
with impunity. For instance, over the past 3 years, 48,947 people were 
murdered in the Northern Triangle, where the total population is just 
over 30 million inhabitants. Countries achieved convictions in 2,295 of 
those homicide cases, representing a regional impunity rate of 95 
percent for homicides over that 3-year period.\6\ In 2012, Honduras had 
the highest homicide rate in the world with 90.4 homicides per 100,000, 
El Salvador had the fourth-highest homicide rate with 41.2 homicides 
per 100,000, and Guatemala had the fifth-highest homicide rate with 40 
homicides per 100,000.\7\ Alliances between drug-trafficking 
organizations and local gangs have increased the efficiency and 
frequency of violence in this region.\8\ The DHS's own statistical 
analysis has shown that children and families are fleeing the countries 
in Latin American with the highest rates of homicides and the most 
dangerous security conditions.\9\ Additionally, impoverished Latin 
American countries with lower rates of violence and homicide, such as 
Nicaragua, are not sending large numbers of children.\10\
---------------------------------------------------------------------------
    \6\ Chavez, S. & Avalos, J., The Northern Triangle: The Countries 
That Don't Cry for Their Dead, INSIGHT CRIME--ORGANIZED CRIME IN THE 
AMERICAS, April 2014, http://www.insightcrime.org/news-analysis/the-
northern-triangle-the-countries-that-dont-cry-for-their-dead.
    \7\ United Nations Office on Drugs and Crime (UNODC), Global Study 
on Homicide, 2013, http://www.unodc.org/documents/gsh/pdfs/
2014_GLOBAL_HOMICIDE_BOOK_web.pdf.
    \8\ U.S. Conference of Catholic Bishops (USCCB), Mission to Central 
America: The Flight of Unaccompanied Children in the United States, p. 
4, November 2013, http://www.usccb.org/about/migration-policy/upload/
Mission-To-Central-America-FINAL-2.pdf.
    \9\ See Tom K. Wong, Statistical Analysis Shows that Violence, Not 
Deferred Action, Is Behind the Surge of Unaccompanied Children Crossing 
the Border, CENTER FOR AMERICAN PROGRESS, 2014, https://
www.americanprogress.org/issues/immigration/news/2014/07/08/93370/
statistical-analysis-shows-that-violence-not-deferred-action-is-behind-
the-surge-of-unac- companied-children-crossing-the-border.
    \10\ Id.
---------------------------------------------------------------------------
  ii. children and families fleeing violence are not included in the 
                      president's executive action
    Central American migration patterns are not tied to U.S. 
immigration policy making. The relief provided by DACA is unavailable 
to anyone who has entered the United States since January 1, 2010. The 
qualifications for DACA, whether under the 2012 directive or the more 
recent November 20, 2014 announcement, require continuous residence in 
the United States for at least 5 years.\11\ Historic trends further 
corroborate this argument. The increase in child migration to the 
United States began in October 2011, more than 6 months prior to 
President Obama's announcement of the DACA program. Furthermore, a 
recent Federal court decision cited a steady increase over the past 8 
years in the number of individuals with prior removal orders expressing 
a fear of persecution.\12\
---------------------------------------------------------------------------
    \11\ U.S. Citizenship and Immigration Services, Consideration of 
Deferred Action for Childhood Arrivals (DACA), October 2014, http://
www.uscis.gov/humanitarian/consideration-deferred-action-childhood-
arrivals-daca; Memo from DHS Secretary Jeh Johnson, Nov. 20, 2014, 
Exercising Prosecutorial Discretion with Respect to Individuals Who 
Came to the United States as Children and with Respect to Certain 
Individuals Who Are the Parents of U.S. Citizens or Permanent 
Residents, http://www.dhs.gov/sites/default/files/publications/
14_1120_memo_deferred_ac- tion.pdf.
    \12\ See Alfaro Garcia et al. v. Johnson et al., No. 14-cv-01775, 
slip op at 18 (N.D. Cal. Nov. 21, 2014) (denying Government's motion to 
dismiss and granting class certification).
---------------------------------------------------------------------------
    If a perceived change in immigration policy was fueling the current 
migration, there would be comparable numbers of immigrant children from 
other regional countries besides El Salvador, Guatemala, and Honduras, 
but this has not been the case. In addition, the United States is not 
the only country seeing an increase in refugees from these three 
countries. The United Nations High Commissioner for Refugees (UNHCR) 
has documented a 712 percent increase in the number of asylum 
applications from Salvadoran, Honduran, and Guatemalan citizens to 
Mexico, Panama, Nicaragua, Costa Rica, and Belize from 2008 to 
2013.\13\ These numbers demonstrate that the current crisis is a 
regional problem caused by country conditions in the sending countries, 
rather than a perceived change in immigration policies in the United 
States.
---------------------------------------------------------------------------
    \13\ UNHCR, Unaccompanied Minors: Humanitarian Situation at U.S. 
Border http://www.unhcrwashington.org/children.
---------------------------------------------------------------------------
    iii. customs and border protection needs greater oversight and 
                             accountability
    NIJC and its partners have documented reports of abuses by Customs 
and Border Protection (CBP) for years, most recently in two civil 
rights complaints on abuse of children in CBP custody and the unjust 
deportation ofindividuals with fear of persecution in their home 
countries. These complaints demonstrate the need for greater oversight 
and accountability of CBP.
    In June of 2014, NIJC and several partner organizations filed a 
mass complaint on behalf of 116 children who were abused and mistreated 
while in CBP custody.\14\ The complaint documents how CBP agents 
verbally and physically abused children in custody, denied access to 
necessary medical care to children as young as 5 months old, 
confiscated and withheld legal documents and personal belongs, and 
strip-searched and shackled children in three-point restraints during 
transport.
---------------------------------------------------------------------------
    \14\ See Complaint to the Department of Homeland Security, Office 
of Civil Rights and Civil Liberties and Inspector General, Re: Systemic 
Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border 
Protection, June 11, http://immigrantjustice.org/sites/
immigrantjustice.org/files/
FINAL%20DHS%20Complaint%20re%20CBP%20Abuse%20of%20- 
UICs%202014%2006%2011.pdf.

``D.G. is a 16-year-old girl who fled to the United States from Central 
America. Shortly after CBP arrested her, officials mocked her and asked 
her why she did not ask the Mexicans for help. When they searched her, 
officials violently spread her legs and touched her genital areas 
forcefully, making her scream. D.G. was detained with both children and 
adults. She describes the holding cell as ice-cold and filthy, and says 
the bright fluorescent lights were left on all day and night. D.G. 
became ill while in CBP custody, but when she asked to see a doctor, 
officials told her it was ``not their fault'' that she was sick and 
ignored her. CBP officials did not return all of D.G.'s personal 
belongings when she was released.''\15\
---------------------------------------------------------------------------
    \15\ Id. at pp. 8-9.

    D.G. is one of many children whose abuse was documented in NIJC's 
complaint. These types of abuses occurred in clear violation of 
standards on the treatment of children and American values. The volume 
and consistency of the complaints overall indicates long-standing, 
systemic problems with CBP policy and practices that require increased 
training on working with children and improved oversight by independent 
entities.
    In addition, NIJC and nine other organizations recently filed a 
civil rights complaint on behalf of nine men and women who were 
unjustly deported by CBP Officers to countries where they faced 
persecution.\16\ Under the 1951 Convention Relating to the Status of 
Refugees (Refugee Convention) and the 1967 Protocol Relating to the 
Status of Refugees (Refugee Protocol), the United States is required to 
recognize as refugees anyone with a ``well-founded fear'' of 
persecution in their home countries, to accord refugees certain legal 
rights, and to refrain from returning them to countries where their 
safety would be threatened.\17\ The United States ratified the Refugee 
Protocol \18\ and in 1980, the United States enacted the Refugee Act to 
ensure compliance.\19\ These obligations were also codified into the 
CBP Field Inspector's Manual. Despite this, NIJC and its partners 
across the country see many individuals who are either denied a chance 
to express fear of return or are ignored, and consequently sent back to 
places where their lives are threatened.
---------------------------------------------------------------------------
    \16\ See Complaint to the Department of Homeland Security, Office 
of Civil Rights and Civil Liberties and Inspector General, Re: 
Inadequate U.S. Customs and Border Protection (CBP) screening practices 
block individuals fleeing persecution from access to the asylum 
process, Nov. 13, 2014, http://immigrantjustice.org/sites/
immigrantjustice.org/files/FINAL%20DHS- 
%20Complaint%20re%20CBP%20Abuse%200f%20UICs%202014%2006%2011.pdf.
    \17\ ``No Contracting State shall expel or return (`refouler') a 
refugee in any manner whatsoever to the frontiers of territories where 
his life or freedom would be threatened on account of his race, 
religion, nationality, membership of a particular social group or 
political opinion.'' Convention Relating to the Status of Refugees 
[hereinafter ``Refugee Convention''], art. 33-1, 189 UNTS 150.
    \18\ Although the United States did not sign the Convention, the 
Protocol includes by reference the rights and duties set forth in the 
Convention. Refugee Protocol art. 2 (``The States Parties to the 
present Protocol undertake to apply Articles 2 to 34 inclusive of the 
Convention to Refugees as hereinafter defined.'') The Protocol expanded 
these rights and duties to all refugees, whereas the Convention only 
applied to those displaced by the Second World War and its aftermath. 
Hereinafter, this statement cites to specific articles of the 
Convention when discussing the Protocol.
    \19\ INS v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987) (citing the 
abundant evidence of an intent to conform the definition of ``refugee'' 
and our asylum law to the United Nation's Protocol to which the United 
States has been bound since 1968).

``R.S.C. is a woman from Guatemala who sought protection in the United 
States due to repeated persecution on account of her status as an 
indigenous woman. R.S.C. was harassed, abused, and raped on four 
occasions before fleeing her country for the first time in January 
2014. She was deported twice from the United States and consequently 
suffered additional persecution in Guatemala. The first time she came 
to the United States, she tried to express her fear of return, but 
Border Patrol agents told her, `Don't talk. These are all lies. Stop 
speaking . . . All Guatemalans are telling the same lies.' Upon her 
return to Guatemala, she was drugged, raped, and impregnated.\20\ She 
returned to the United States in April 2014 seeking safety, and was 
again denied an opportunity to express her fear of return and was 
deported within days. She came to the United States for a third time 
with her 8-year-old son in July 2014, and they were placed in detention 
at the Artesia Family Residential Center in Artesia, New Mexico. 
Because CBP previously deported R.S.C., she is legally barred from 
applying for asylum and can only seek `withholding of removal,' a much 
more limited form of protection with a higher burden of proof and no 
guarantee of permanency. Her son, however, is eligible to apply for 
asylum. As of the date of this writing, R.S.C. and her son remain 
detained while her removal proceedings are on-going.''
---------------------------------------------------------------------------
    \20\ Supra note 16 at page 18.

    R.S.C. is one of many who have been denied asylum protections due 
to inadequate screening by CBP Agents.\21\ In addition to the nine 
complainants in NIJC's complaint, six legal service providers in Texas, 
California, and Arizona also provided statements showing that the 
complainants' experiences are not isolated incidents, but symptoms of 
systemic failures that result in permanent and life-threatening harm to 
hundreds--potentially thousands--of asylum seekers.
---------------------------------------------------------------------------
    \21\ Bekiempis, Victoria, ``Is U.S. Customs and Border Protection 
Kicking Out Refugees?'' Newsweek, Nov. 15, 2014, http://
www.newsweek.com/us-custom-sand-border-protection-kicking-out-refugees-
284433.
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                          iv. recommendations
    Recent immigration from the Northern Triangle of Central America 
has been driven by violence and persecution and without addressing root 
causes in countries of origin, the trend that will likely continue. The 
increase in recent arrivals at the border may appear correlated in time 
with the availability of immigration relief for others with long-
standing ties in the United States, but no causation between new 
arrivals and Executive Actions has been credibly established. Based on 
its experience and expertise, NIJC makes four recommendations that urge 
DHS to focus its attention on improvements at the border that promote 
due process and respect for the dignity of asylum seekers, including 
unaccompanied immigrant children:
    (1) End family detention.--Because persecution is the main driver 
        of migration for mothers and children from Central America, DHS 
        should not use family detention as a deterrent nor signal that 
        asylum seekers will be swiftly deported. Families should 
        receive individualized custody determinations, particularly 
        once they have established a credible fear of persecution, and 
        be considered for alternatives to detention, including bond, 
        release on recognizance or orders of supervision, and 
        community-based alternatives.
    (2) Improve training of CBP Officers to ensure their understanding 
        and compliance with existing law and procedure--including 
        directives in the agency's own manual--with respect to the 
        treatment of asylum seekers who are apprehended at the border 
        or a point of entry.\22\
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    \22\ See 8 U.S.C.  1225(b)(1)(A)(ii); 8 CFR 235.3(b)(4); CBP 
Inspector's Field Manual, supra, note 36, at 113-14.
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    (3) Promote clear information domestically and abroad on the 
        parameters of recent Executive Action on immigration.--Instead 
        of seeking to deter asylum seekers from seeking safe haven in 
        the United States, DHS should focus its effort on providing 
        clear information through popular media in Spanish and 
        indigenous languages, on the eligibility criteria for deferred 
        action.
    (4) Ensure that children are treated fairly and humanely at the 
        border.--CBP must ensure that children are not held in their 
        custody for more than 72 hours (and ideally not more than 24 
        hours) and promulgate binding short-term detention standards 
        that apply to those held in CBP facilities.
                                 ______
                                 
       Statement of the American Immigration Lawyers Association
                            December 2, 2014
    The American Immigration Lawyers Association (AILA) is the National 
association of immigration lawyers established to promote justice, 
advocate for fair and reasonable immigration law and policy, advance 
the quality of immigration and nationality law and practice, and 
enhance the professional development of its members. AILA has over 
13,000 attorney and law professor members.
    On November 20, 2014, President Obama announced a package of 
reforms to the immigration system. AILA welcomes this plan which, for 
the most part, provides critically-needed changes to many aspects of 
our broken system. Almost 2 decades have passed since a major reform 
was enacted to the country's immigration laws, and despite efforts in 
recent years, Congress has been unable to complete the task. Though the 
Senate passed a comprehensive bill in 2013, the House has not yet 
passed any bills, including a border security bill that was passed by 
the Homeland Security Committee. In the absence of legislation, it 
would be irresponsible for the President to wait and do nothing while 
American families, businesses, and communities languish under the 
current system.
                            border security
    The President's announcement calls for additional border security 
measures at a time when the border has never been more secure. In the 
past decade, the Department of Homeland Security (DHS) has deployed 
unprecedented amounts of personnel, resources, and technology to secure 
the Nation's borders. Last year, in our report ``Border Security: 
Moving Beyond Past Benchmarks,'' AILA urged lawmakers to stop the 
massive expenditure of resources on border security. AILA is 
disappointed that the President highlighted the plan in the 2013 Senate 
bill to add 20,000 more Border Patrol but offered no explanation for 
such an incredible increase. Until DHS provides justification for the 
need for such resources, this request for a dramatic increase in border 
personnel appears to be an unnecessary and wasteful expenditure of 
taxpayer resources.
    AILA also opposes the planned surge in resources to the border that 
began this summer in response to the spike in families and 
unaccompanied children fleeing violence in the Northern Triangle in 
Central America. The surge included a massive expansion in family 
detention in gross violation of U.S. asylum and humanitarian law. It is 
undeniable that the violence in Guatemala, Honduras, and El Salvador 
has reached crisis proportions. Through AILA's volunteer project which 
provides legal representation for hundreds of families now detained in 
Artesia, NM, AILA has found that these families qualify for asylum at 
extremely high rates. Immigration judges have rendered decisions in 10 
asylum cases where the mothers and children were represented by AILA 
attorneys, and in all 10 of those cases, the judges granted asylum. 
America is not confronted with a border security problem but a 
humanitarian crisis that affects the entire region. The crisis demands 
a humanitarian response not a deterrence-driven, border lockdown.
    In the coming weeks and months, there will almost certainly be 
efforts to blame the continuing flow of unaccompanied minors and 
families fleeing violence in Central America on the President's two 
newly-announced deferred action programs (Deferred Action for Childhood 
Arrivals and Deferred Action for Parental Accountability). Such claims 
came during the summer despite the overwhelming evidence that what 
drove the surge in families and children to our country was the 
violence in those Central American countries. It is important to 
recognize that the United States has not seen large numbers of refugees 
from other extremely poor countries, such as Nicaragua, because 
Nicaragua has not experienced the same levels of uncontrollable 
violence.
    Finally, the President's announcement, as of yet, includes nothing 
to address the grave and long-standing concerns about the lack of 
oversight and accountability of Border Patrol. Reports persist of 
Border Patrol abuses--including the excessive use of force resulting in 
civilian deaths at the border--deplorable detention conditions, 
racially-motivated arrests, coercive interrogation tactics, and the 
denial of access to asylum and the right to counsel. AILA recommends 
that the committee turn greater attention to these problems that are 
likely to grow more severe once DHS adds even more Border Patrol Agents 
to the Southern Border.
                      amnesty and legal authority
    The President's announcement has already engendered partisan debate 
and controversy. Many have alleged that his actions amount to a grant 
of amnesty. It is AILA's judgment that the President has acted well 
within his legal authority and that the deferred action programs do not 
constitute an amnesty. Unlike the 1986 amnesty President Reagan signed 
into law, deferred action does not confer formal legal status to the 
individual but merely a reprieve from immigration law enforcement, 
specifically deportation. Moreover the grant is temporary, so those 
granted the status could be at risk of deportation if the status 
expires. Finally, deferred action, by itself, does not provide a path 
to a green card or citizenship.
    The Executive branch's authority to grant deferred action is 
derived from the Federal immigration statute and regulations as well as 
the long-standing principle of prosecutorial discretion used by every 
law enforcement agency. It is common practice for law enforcement 
agencies and their individual officers to decide how and to what extent 
to pursue a particular case based on established priorities. A law 
enforcement officer who declines to pursue a case against a person has 
favorably exercised prosecutorial discretion. In a 1999 letter, 28 
Republican and Democratic Members of Congress (including the Chair of 
the Judiciary committee at that time, Lamar Smith) called for 
prosecutorial discretion in immigration enforcement: ``The principle of 
the prosecutorial discretion is well-established.''
    Prosecutorial discretion ensures the smart use of finite 
enforcement resources. DHS cannot possibly deport everyone who is 
living unauthorized in the United States. Such a mass deportation is 
not only completely unrealistic but also an unwise policy choice as it 
would gravely fracture American society, negatively impact businesses, 
and hurt the economy. For these very reasons, Republican and Democratic 
leaders have spoken against the idea of deporting over 11 million 
undocumented immigrants. DHS and every other enforcement agency must 
choose priorities. Keeping America safe by focusing on those who 
present real threats to our National security and public safety is the 
right focus.
    In the past 50 years, Republican and Democratic presidents have 
designated various groups of people for temporary relief from 
immigration enforcement by granting deferred action or using a similar 
tool. In 1990, President Bush provided blanket protection from 
deportation for up to 1.5 million unauthorized spouses and children of 
immigrants, about 40 percent of the total unauthorized population at 
the time. Other Presidents have provided temporary protection to 
victims of domestic violence, the family members of military service 
members, widows and widowers, as well as people from specific countries 
or regions such as Cuba, Haiti, Southeast Asia, or the Persian Gulf.
    Deferred action is a vital tool that has been used historically to 
protect vulnerable populations. If DHS could not grant deferred action 
it would be unable to ensure that victims of domestic violence, sexual 
assault, human trafficking, and other crimes are protected from 
deportation while their applications for protections under the Violence 
Against Women Act (VAWA) are processed.
           why is it necessary for the president to act now?
    In the absence of reform, the immigration system has become 
increasingly broken and is failing American families, businesses, and 
communities. Nation-wide polling has shown that Americans want major 
reform. A January 2014, Fox News poll showed that 68 percent of 
Americans supported allowing illegal immigrants to remain the country 
and eventually qualify for citizenship if they meet certain 
requirements like paying taxes, learning English, and passing a 
background check. After the November 2014 election, Edison Research, 
which does exit polling for the consortium of major news networks, 
found that 57 percent of voters preferred that ``illegal immigrants 
working in the U.S.'' be offered legal status instead of deportation.
    AILA hears daily from businesses that cannot hire workers and are 
stymied by the slow and dysfunctional operations of the immigration 
system. Every day families are kept separated because of long backlogs 
in the visa system. Now 11.5 million people are living in the country 
without legal status. Most have families and jobs but cannot work 
legally and must exist in the shadows. These individuals are also 
subject to immigration enforcement and deportation. In the past several 
years, DHS has deported hundreds of thousands of parents of U.S. 
citizens--approximately 23 percent of all deportations--causing painful 
separations of families.
    America's immigration system is in urgent need of reform. AILA 
supports the enactment of legislation, the only way to provide lasting 
change. Until that happens AILA applauds the efforts of the President 
and DHS to improve the system and implement reforms to the fullest 
extent permitted by law. AILA welcomes the opportunity to work with 
Congress and the President to make our system better for America.
                                 ______
                                 
Statement of Laura W. Murphy, Director, and Christopher Rickerd, Policy 
    Counsel, ACLU Washington Legislative Office; Vicki B. Gaubeca, 
Director, and Brian Erickson, Policy Advocate, the ACLU of New Mexico, 
    Regional Center for Border Rights; Christian Ramirez, Director, 
   Southern Border Communities Coalition; and Ryan Bates, Executive 
Director, Michigan United, Rich Stolz, Executive Director, OneAmerica, 
  and Steve Choi, Executive Director, New York Immigration Coalition, 
                       Northern Borders Coalition
                            December 2, 2014
                            i. introduction
    For nearly 100 years, the American Civil Liberties Union (ACLU) has 
been our Nation's guardian of liberty, working in courts, legislatures, 
and communities to defend and preserve the individual rights and 
liberties that the Constitution and the laws of the United States 
guarantee everyone in this country. The ACLU takes up the toughest 
civil liberties cases and issues to defend all people from Government 
abuse and overreach. With more than a million members, activists, and 
supporters, the ACLU is a Nation-wide organization that fights 
tirelessly in all 50 States, Puerto Rico, and Washington, DC, for the 
principle that every individual's rights must be protected equally 
under the law, regardless of race, religion, gender, sexual 
orientation, disability, or National origin. The ACLU's Washington 
Legislative Office (WLO) conducts legislative and administrative 
advocacy to advance the organization's goal of protecting border 
residents' and immigrants' rights, including supporting a roadmap to 
citizenship for aspiring Americans.
    The ACLU of New Mexico's Regional Center for Border Rights (RCBR) 
stands with border communities to defend and protect America's 
Constitutional guarantees of equality and justice for all families. The 
RCBR works in conjunction with ACLU affiliates in California, Arizona, 
Texas, Michigan, Washington, and New York, as well as advocates 
throughout the border region who comprise the Southern Border 
Communities Coalition (SBCC) and the Northern Borders Coalition (NBC). 
SBCC brings together more than 60 organizations from San Diego, 
California, to Brownsville, Texas, to ensure that border enforcement 
policies and practices are accountable and fair, respect human dignity 
and human rights, and prevent loss of life in the region. NBC is a 
union of organizations along the Northern Border working to stand up 
for civil and human rights together. The Coalition helps build shared 
strategies amongst members to address new border challenges, and 
collaborates with partners in the Southwest to share best practices. 
The ACLU, SBCC, and NBC submit this statement to provide the committee 
with an appraisal of the civil liberties implications of border 
security proposals.
    The ACLU, SBCC, and NBC oppose exorbitant spending on border 
enforcement, spending which is taking place without thoughtful 
consideration of current community and security needs. Current 
proposals to throw money, personnel, and equipment at the border would 
exacerbate the problems border communities face with militarization 
today and ignore that:
   Deployment of additional border security resources along the 
        U.S.-Mexico border would not be rooted in true border security 
        needs. Over more than a decade, the U.S. Government has built a 
        massive and comprehensive enforcement regime that has produced 
        the most enforced border in U.S. history. Adding more resources 
        would not only be wasteful and unnecessary, but would also be 
        at odds with the top-of-the-charts safety, economic vitality, 
        and diversity of border communities.
   Overall, border-wide apprehensions by U.S. Customs and 
        Border Protection (CBP) are at their lowest levels in 40 years 
        and net migration from Mexico at zero. This summer's migration 
        of families and children fleeing violence in Central America 
        and turning themselves in was correctly identified by CBP 
        leadership as a humanitarian matter.
   Spending, with particular emphasis on the Southwest Border, 
        has increased dramatically over the last decade with no 
        commensurate accountability measures, resulting in civilian 
        deaths at the hands of CBP personnel, unnecessary migrant 
        deaths in the desert, and many other civil and human rights 
        abuses on both our Nation's Southern and Northern Borders.
    The U.S. Government cannot afford to throw money down the border-
security drain, particularly because this spending has also damaged 
quality of life in border communities. The committee must not, without 
transparent and broad-ranging metrics, uncritically adopt the erroneous 
conventional wisdom of inadequate border security. Suggesting in a 
vacuum of information that more border enforcement resources are needed 
lacks fiscal responsibility and fails to give due attention to the true 
needs of border communities suffering from a wasteful, militarized 
enforcement regime. Moreover, justifying the additional deployment of 
border enforcement resources and family detention as an appropriate 
response to a humanitarian crisis in Central America contradicts our 
core values of compassion and justice for scared mothers and children.
    The ACLU, SBCC, and NBC urge the committee to focus its efforts on 
ensuring that future border security is conducted humanely and in 
accordance with best police practices. Legislation should bring greater 
oversight and accountability--not war equipment or more boots on the 
ground--to CBP: Our Nation's largest law enforcement agency.
   i. border-security proposals must reject the misguided, wasteful 
  approach of the senate's corker-hoeven ``border surge'' amendment. 
   instead, congress should end the abusive militarization of border 
                              communities.
a. The ``Mini-Industrial Complex'' of Border Spending
    The committee has to this point, commendably, not followed the 
severely-misguided approach incorporated last year in Senate Bill 744's 
``surge'' of border security resources. Such proposals ignore the fact 
that border security benchmarks of prior proposed or enacted 
legislation (in 2006, 2007, and 2010) have already been met or 
exceeded.\1\ In the last decade, the United States has relied heavily 
on enforcement-only approaches to address migration, using deterrence-
based border security strategies that have continued and expanded to 
record levels under the Obama administration:
---------------------------------------------------------------------------
    \1\ Chen, Greg and Kim, Su. ``Border Security: Moving Beyond Past 
Benchmarks,'' AMERICAN IMMIGRATION LAWYERS ASSOCIATION, (Jan. 30, 
2013), available at: http://www.aila.org/content/
default.aspx?bc=25667143061.
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   CBP has become an interior law enforcement agency through 
        its vast claimed authority to patrol within 100 miles of all 
        land and sea borders, an unnecessary overreach based on 
        outdated regulations issued in the 1950s.
   Because of ``zero-tolerance'' initiatives like Operation 
        Streamline, the Department of Homeland Security (DHS) now 
        refers more cases for Federal prosecution than the Department 
        of Justice's (DOJ) law enforcement agencies. Under President 
        Obama, immigration-related Federal prosecutions have reached 
        record levels at tremendous cost to U.S. taxpayers. Federal 
        prisons are already more than 30 percent over capacity, due in 
        large part to indiscriminate prosecution of individuals for 
        crossing the border without authorization, often to rejoin 
        their families.\2\ The majority of those sentenced to Federal 
        prison in 2013 were Latinos, who are now held in large numbers 
        in substandard private prisons.\3\
---------------------------------------------------------------------------
    \2\ Carson, E. Ann. U.S. Department of Justice, BUREAU OF JUSTICE 
STATISTICS, ``Prisoners in 2013'' (Sept. 2014), available at: http://
www.bjs.gov/content/pub/pdf/p13.pdf.
    \3\ U.S. Sentencing Commission, 2013 ANNUAL REPORT, Chapter 5, 
available at http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2013/
2013_Annual_Report_Chap5_0.pdf; see also ACLU of Texas and ACLU, 
Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private 
Prison System. (June 2014), available at https://www.aclu.org/sites/
default/files/assets/060614-aclu-car-report-on- line.pdf.
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   Since 2003, the U.S. Border Patrol has doubled in size and 
        now employs more than 21,400 agents, with about 85 percent of 
        its force deployed at the U.S.-Mexico border. So many Border 
        Patrol Agents now patrol the Southern Border that if they lined 
        up equally from Brownsville to San Diego, they would stand in 
        plain sight of one another. This number does not include the 
        thousands of other DHS officials, including CBP Office of Field 
        Operations officers and one-fourth of all Immigration and 
        Customs Enforcement (ICE) personnel deployed at the same 
        border. It also does not include 651 miles of fencing, 333 
        video surveillance systems, and at least 10 drones for air 
        surveillance.
    From a fiscal perspective, from fiscal year 2004 to fiscal year 
2012, the budget for CBP increased by 94 percent to $11.65 billion, a 
leap of $5.65 billion; this following a 20 percent post-9/11 increase 
of $1 billion.\4\ By way of comparison, this jump in funding more than 
quadrupled the growth rate of NASA's budget and was almost 10 times 
that of the National Institutes of Health. For fiscal year 2015, the 
administration's budget request for CBP was about $12.8 billion.\5\ 
U.S. taxpayers now spend more on immigration enforcement agencies ($18 
billion) than on the FBI, DEA, ATF, U.S. Marshals, and Secret Service--
combined.
---------------------------------------------------------------------------
    \4\ Michele Mittelstadt et al., ``Through the Prism of National 
Security: Major Immigration Policy and Program Changes in the Decade 
since 9/11.'' (Migration Policy Institute, Aug. 2011), 3, available at 
http://www.migrationpolicy.org/pubsFS23_Post-9-11policy.pdf.
    \5\ Department of Homeland Security. ``Budget-in-Brief: Fiscal Year 
2015,'' available at http://www.dhs.gov/sites/default/files/
publications/FY15BIB.pdf.
---------------------------------------------------------------------------
    CBP's spending runs directly counter to data on recent and current 
migration trends and severely detracts from the true needs of border 
security. Much attention has been paid to increased apprehensions of 
children and families in south Texas, many of whom are fleeing terrible 
violence in Central America. When analyzed border-wide and over time, 
however, migrant apprehensions remain lower than at any time since the 
1970s. Between 2000 and 2010, apprehensions by the Border Patrol 
declined more than 72 percent to about 463,000. In fiscal year 2013, 
Border Patrol apprehended almost 421,000 illegal crossers in total--
fewer than in 2010 and an equivalent of less than two apprehensions a 
month per agent.\6\
---------------------------------------------------------------------------
    \6\ U.S Border Patrol, ``Nation-wide Illegal Alien Apprehensions 
Fiscal Years 1925-2013,'' available at: http://www.cbp.gov/sites/
default/files/documents/U.S.%20Border%20Patrol%20- 
Fiscal%20Year%20Apprehension%20Statistics%201925-2013.pdf.
---------------------------------------------------------------------------
    The costs per apprehension vary per sector, but are generally at an 
all-time high. The Yuma, Arizona sector, for example, has seen a 95 
percent decline in apprehensions since 2005 while the number of agents 
has tripled. Each agent was responsible for interdicting fewer than 7 
immigrants in 2013, contributing to ballooning per capita costs: Each 
migrant apprehension at the border now costs five times more, rising 
from $1,400 in 2005 to over $7,500 in 2011.\7\
---------------------------------------------------------------------------
    \7\ Immigration Policy Center, Second Annual DHS Progress Report. 
(Apr. 2011), 26, available at http://www.immigrationpolicy.org/sites/
default/files/docs/2011_DHS_Report_041211.- pdf.
---------------------------------------------------------------------------
    The Committee should heed House Appropriations Committee Chairman 
Hal Rogers' warning about the irrationality of border spending: ``It is 
a sort of a mini industrial complex syndrome that has set in there. And 
we're going to have to guard against it every step of the way.''\8\ The 
committee's data-driven, bipartisan approach to border security, as 
embodied by H.R. 1417, the Border Security Results Act, is an 
improvement over proposals like the Corker-Hoeven ``border surge.'' 
However, H.R. 1417's narrow focus on border security remains misplaced 
at a time when border enforcement is at an all-time high and continues 
to have a detrimental impact on border communities. It also sets flawed 
benchmarks in seeking a 90 percent ``illegal crossing effectiveness 
rate'' across the Southwest Border without contemplating a thorough 
study of border needs, particularly greater oversight and 
accountability and cross-border economic exchange.
---------------------------------------------------------------------------
    \8\ Ted Robbins, ``U.S. Grows An Industrial Complex Along The 
Border.'' NPR (Sept. 12, 2012), available at http://www.npr.org/2012/
09/12/160758471/u-s-grows-an-industrial-complex-along-the-border.
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b. Congress Must Expand Oversight and Accountability to Mitigate CBP 
        Corruption and Abuse.
    Unprecedented investment in border enforcement without 
corresponding oversight mechanisms has led to an increase in human and 
civil rights violations, traumatic family separations in border 
communities, and racial profiling and harassment of Native Americans, 
Latinos, and other people of color--many of them U.S. citizens and some 
who have lived in the region for generations. Corruption and criminal 
conduct have also plagued the dramatically and recklessly expanded CBP 
force, which, as reported by Politico Magazine, had nearly one CBP 
Officer or Agent arrested for misconduct every single day from 2005 to 
2012.\9\ Politico Magazine's exposee of CBP closely examines the now 
well-documented deficiencies in CBP's use-of-force policy and practice, 
which have led the agency to become one of our Nation's ``deadliest'' 
and most ``out-of-control'' law enforcement agencies. Since January 
2010, at least 31 individuals have died from lethal force by CBP 
Officers and Agents. These cases include 14 individuals who were U.S. 
citizens and 6 individuals who were shot and killed while standing in 
Mexico--three of whom were teenagers, ages 15, 16, and 17.
---------------------------------------------------------------------------
    \9\ Graff, Garrett M. ``The Green Monster: How the Border Patrol 
became America's most out-of-control law enforcement agency,'' POLITICO 
MAGAZINE (Nov./Dec. 2014), available at http://www.politico.com/
magazine/story/2014/10/border-patrol-the-green-monster-112220.- 
html#.VHdurlfF8Wk.
---------------------------------------------------------------------------
    In numerous cases individuals were shot multiple times, including 
through the back, such as Jose Antonio Elena Rodriguez who was struck 
by at least eight bullets--all but one in the back--across the border 
fence in Nogales, Sonora by agents responding to alleged rock 
throwing.\10\ Also among the most well-known cases is that of Anastasio 
Hernandez Rojas who--by the happenstance of a witness video-- was shown 
to be handcuffed and prostrate on the ground, contrary to the agency's 
incident reporting, when dozens of agents beat and Tased him to death. 
The San Diego coroner classified Mr. Hernandez's death as a homicide, 
noting in addition to a heart attack: ``several loose teeth; bruising 
to his chest, stomach, hips, knees, back, lips, head and eyelids; five 
broken ribs; and a damaged spine.'' Both of these cases, and many more, 
illustrate common shortcomings in policy and practice that were 
criticized in an audit of CBP's use-of-force incidents conducted by the 
Police Executive Research Forum (PERF) and publicly released on May 30, 
2014.
---------------------------------------------------------------------------
    \10\ Skoloff, Brian. ``Border Patrol Shot Mexican Teen Jose Antonio 
Elena Rodriguez 8 Times: Autopsy,'' ASSOCIATED PRESS (Feb. 8, 2013), 
available at http://www.huffingtonpost.com/2013/02/08/border-patrol-
shot-mexican-teen-jose-antonio-elena-rodriguez-autopsy_n_2646191.- 
html.
---------------------------------------------------------------------------
    The Arizona Republic documented more than 46 deaths for which CBP 
is responsible since 2004-2005, and, as noted by the Republic in 
December 2013, in ``none of [these] deaths has any agent or officer 
been publicly known to have faced consequences--not from the Border 
Patrol, not from Customs and Border Protection or Homeland Security, 
not from the Department of Justice, and not, ultimately, from criminal 
or civil courts.''\11\ Former head of CBP Internal Affairs James F. 
Tomsheck has flagged at least a quarter of 28 lethal force cases as 
``highly suspect,'' and alleged that ``Border Patrol officials have 
consistently tried to change or distort facts to make fatal shootings 
by agents appear to be `a good shoot' and cover up any wrongdoing.'' 
Perhaps most alarmingly of all, Tomsheck said he believes that 
thousands of employees hired by CBP during the agency's unprecedented 
expansion after 9/11 are potentially unfit to carry a badge and 
gun.\12\ Lack of accountability for these unprofessional and dangerous 
personnel mars the reputations of officers and agents who conduct 
themselves properly.
---------------------------------------------------------------------------
    \11\ Crosby, Cherrill. ``Change occurring after Republic's border 
investigation,'' ARIZONA REPUBLIC (Aug. 4, 2014), available at: http://
www.azcentral.com/story/news/politics/investigations/2014/08/02/border-
force-republic-investigation-change/13534935/.
    \12\ Becker, Andrew. ``Removal of border agency's internal affairs 
chief raises alarms, ``CENTER FOR INVESTIGATIVE REPORTING (June 12, 
2014), available at: http://cironline.org/reports/removal-border-
agencys-internal-affairs-chief-raises-alarms-6443.
---------------------------------------------------------------------------
    CBP's failure to establish an institutional culture of 
accountability has far-reaching consequences for border communities, 
beyond excessive force. Numerous administrative complaints, legal 
claims, and reports documenting wide-spread CBP abuse in short-term 
custody facilities detail physical and verbal abuse, denial of medical 
care, failure to provide sufficient food and water, overcrowding, 
exposure to extreme temperatures, denial of communication with family 
and consular or legal support, failure to return personal belongings at 
the moment of repatriation, and use of coercion to pressure individuals 
into signing away legal rights. One New Mexican, Jane Doe, was held for 
hours by CBP officials who subjected her to repeated, invasive searches 
at a port of entry in El Paso, TX and subsequently a local hospital. 
After hours of humiliating searches she never consented to and which 
turned up no contraband, Ms. Doe was released with a hospital bill.\13\
---------------------------------------------------------------------------
    \13\ Planas, Roque. ``Woman's Lawsuit Alleges Horrifying Abuse By 
Border Officers, Including Cavity Searches And Forced Bowel 
Movements,'' HUFFINGTON POST (Mar. 6, 2014), available at http://
www.huffingtonpost.com/2014/03/06/border-cavity-search_n_4907225.html.
---------------------------------------------------------------------------
    CBP operates in an antiquated 100-mile zone extending toward the 
interior from any land or sea border, a distance that has no statutory 
basis and originated without scrutiny 60 years ago in now-outdated 
regulations.\14\ The area includes two-thirds of the U.S. population, 
entire States like Florida and Maine, as well as almost all of the 
country's top metropolitan areas. This zone has converted CBP, 
particularly Border Patrol, into an interior enforcement agency that 
widely roams border communities.
---------------------------------------------------------------------------
    \4\ See ACLU, The Constitution in the 100-Mile Border Zone (2014), 
available at https://www.aclu.org/immigrants-rights/constitution-100-
mile-border-zone.
---------------------------------------------------------------------------
    By setting up interior checkpoints and conducting roving patrols 
many miles from the border, CBP does little to further border security 
goals but much to harm the quality of life of those who live and work 
in the border region. This includes communities like Arivaca, AZ, where 
residents have petitioned for the removal of one of three interior 
checkpoints that surround their community and have documented daily 
encounters between residents and agents. Their report found that Latino 
motorists were more than 26 times more likely to be asked to show 
identification, and 20 times more likely to be sent to secondary 
inspection.\15\ But even non-Latino residents like Clarisa Christiansen 
and her children live in fear of the Border Patrol after agents pulled 
her over on a rural stretch of road near her house, threatened to cut 
her out of her seatbelt with a knife, and slashed her tires--all 
because she asked to know the reason agents stopped her.\16\
---------------------------------------------------------------------------
    \15\ Echevarri, Fernanda. Group Alleges Border Patrol is Racial 
Profiling at Arivaca Checkpoint, NATIONAL PUBLIC RADIO (Oct. 20, 2014), 
available at: https://www.azpm.org/p/top-news/2014/10/20/47393-group-
alleges-border-patrol-is-racial-profiling-at-arivaca-checkpoint/.
    \16\ See video at ACLU website ``Border Communities Under Siege,'' 
available at https://www.aclu.org/border-communities-under-siege-
border-patrol-agents-ride-roughshod-over-civil-rights.
---------------------------------------------------------------------------
    Northern Border residents have reported Border Patrol Agents 
conducting roving patrols near schools and churches and asking 
passengers for their documents on trains and buses that are traveling 
far from border crossings. The ACLU of Washington State brought and 
settled a class-action lawsuit to end the Border Patrol's practice of 
stopping vehicles and interrogating occupants without legal 
justification. One of the plaintiffs in the case was an African-
American corrections officer and part-time police officer pulled over 
for no expressed reason and interrogated about his immigration status 
while wearing his corrections uniform.\17\
---------------------------------------------------------------------------
    \17\ Complaint available at http://www.aclu-wa.org/sites/default/
files/attachments/2012-04-26--Complaint_0.pdf.
---------------------------------------------------------------------------
    To expand border resources--particularly Border Patrol staffing--
would badly worsen CBP's accountability crisis and compound the damage 
caused by prior hiring binges. It would also run contrary to the 
reality of border communities, which are safe,\18\ diverse, and 
economically critical to this country. Our communities are forced to 
endure regular aggression, hostility, and intimidation from a 
significant percentage of CBP Officers and Agents. Border residents, 
like any community, should not have to live with fear and mistrust of 
law enforcement.
---------------------------------------------------------------------------
    \18\ See, e.g., Frances Burns, ``Rep. Cuellar: Texas cities on the 
Mexican border have less crime.'' UPI (Nov. 19, 2014) (quoting 
Congressman Cuellar: ``Many people characterize the southern border as 
being unsafe but today's numbers paint a very different picture.''), 
available at http://www.upi.com/Top_News/US/2014/11/19/Rep-Cuellar-
Texas-cities-on-the-Mexican-border-have-less-crime/3971416406308/.
---------------------------------------------------------------------------
    Border communities are a vital component of the half-trillion 
dollars in trade between the United States and Mexico, and the damaging 
effects of militarization on them must be addressed by serious 
oversight and accountability reforms to CBP. While the Federal 
Government has the authority to control our Nation's borders and 
regulate immigration, CBP officials must do so in compliance with 
National and international legal norms and standards.
    As employees of the Nation's largest law enforcement agency, CBP 
officials should be trained and held to the highest law enforcement 
standards. Systemic, robust, and permanent oversight and accountability 
mechanisms for CBP must be the starting point for any discussion on 
border security:
   Equipping all CBP personnel with body-worn cameras;\19\
---------------------------------------------------------------------------
    \19\ See ACLU, ``Strengthening CBP with the Use of Body-Worn 
Cameras.'' (June 27, 2014), available at https://www.aclu.org/criminal-
law-reform/strengthening-cbp-use-body-worn-cameras.
---------------------------------------------------------------------------
   Implementing enforceable custody standards;
   Reforming DHS complaint systems to provide a transparent, 
        uniform process for filing complaints;\20\ and
---------------------------------------------------------------------------
    \20\ See ACLU et al., Recommendations to DHS to Improve Complaint 
Processing (2014), available at https://www.aclu.org/sites/default/
files/assets/14_5_5_recommendations_to_- 
dhs_to_improve_complaint_processing_final.pdf; see also American 
Immigration Council, No Action Taken: Lack of CBP Accountability in 
Responding to Complaints of Abuse (2014), available at http://
www.immigrationpolicy.org/special-reports/no-action-taken-lack-cbp-
accountability-responding-complaints-abuse.
---------------------------------------------------------------------------
   Rolling back the antiquated 100-mile zone.
    Such improvements would create a legacy of CBP reform that would 
improve the quality of life and restore trust for this and future 
generations of border residents.
                               conclusion
    Congress should transform border enforcement in a manner that is 
fiscally responsible, respects and listens to border residents before 
defining their communities' needs, and upholds Constitutional rights 
and American values. The ACLU, SBCC, and NBC commend the House 
Committee on Homeland Security for its past commitments to define 
border security with precision before funneling more resources. We urge 
the committee to prioritize reduction of CBP abuses in the currently-
oppressive border and immigration enforcement system which has cost 
more than $250 billion in today's dollars since 1986.\21\
---------------------------------------------------------------------------
    \21\ Robbins, supra.

    Chairman McCaul. I want to remind the Members of this 
committee that the Secretary has 30 minutes left, so if you can 
keep your remarks as short as possible.
    With that, Mr. Vela.
    Mr. Vela. Mr. Secretary, if I had known we could have 
played clips, I was reminded of a scene from Cheech and Chong 
with the background music of coming to America. If anybody had 
an interest they can probably find it on YouTube. But I, too, 
want to thank you for your accessibility since having taken 
office, and I just want to say that since we have been dealing 
with you and your staff we have seen marked changes and 
progress between communications between this committee and 
yours.
    I think with respect to the idea of border security, you 
were asked about metrics, the fact is, is that this committee 
in a fully bipartisan fashion almost a year ago passed a border 
security bill that would have established those metrics, and we 
have yet to see it on the House floor. We have 2 weeks left 
before the end of the year. If that bill was brought to the 
House floor, you would have a border security bill by the end 
of the year.
    With respect to the issue of a permanent solution in the 
context of immigration, the fact of the matter is, is our 
choices are very stark in my view. There are those who believe 
that of the millions of people who have been working here in 
our construction sites, our hotels, our restaurants, and all 
across this country, that what we ought to do is rope them up 
and send them back. There are those who believe that we ought 
to develop a pathway to citizenship and a legalization process. 
What I strongly object to--and remember that I agree we need 
border security. That is why I voted on the bill that passed 
this committee--what I strongly object to is the idea that the 
legalization process ought to be conditioned on border 
security, because to me if you define border security as making 
sure that we prevent people from coming here in the future, I 
don't see what that has to do with the people that are already 
here.
    I also cringe when I hear the word border crisis because in 
my view what we are talking about is three separate crises that 
are interrelated. That is the crisis of drug smuggling, human 
smuggling, and illegal migration. The fact is, is that those 
are crises that do not end or begin at the border. They begin 
with economic conditions in Mexico and Central America and 
issues of cartel violence in Central America and Mexico as 
well, and they end with our demand for drugs on this side of 
the border as well as the fact when you consider the fact that 
over a thousand cities across this country, FBI statistics 
shows that there is a cartel presence.
    So I really believe that if we are ever going to really 
address the root causes of those three issues, that we really 
have to start talking about issues of economic development in 
Mexico and Central America and addressing cartel violence. With 
that in mind, what I would ask, and this may be coming from 
left field because I know it is more of a Department of Justice 
matter, in the last year the former governor of Tamaulipas, 
Mexico, was indicted in the Southern District of Texas and an 
extradition order has been issued by the Federal judge down in 
Brownsville, and I would just ask that you do whatever you can 
with respect to the other department heads to see if we cannot 
bring this gentleman to justice. Because when we talk about 
drug smuggling, we talk about human smuggling, the fact of the 
matter is, it is not the coyotes making the money, it is the 
people at the top.
    I yield the rest of my time.
    Secretary Johnson. Congressman, may I respond?
    Chairman McCaul. Yes, sir.
    Secretary Johnson. Just briefly. I have this thought 
listening to you, Congressman. Negotiating and arriving at an 
acceptable piece of legislation that addresses our immigration 
system in a comprehensive way, in my judgment, should not be 
that hard. I have in my private law practice negotiated the 
most complex civil settlements ever on Wall Street. I believe 
that if we could just strip away the emotion and the politics 
on this issue and you brought me the right group of Members of 
the House of Representatives, I could negotiate a bill with 
you, and I am issuing that invitation again. I believe we could 
do it. It should not be that difficult.
    Chairman McCaul. Thank you.
    The Chairman now recognizes Mr. Barletta.
    Mr. Barletta. Thank you, Mr. Chairman.
    Mr. Secretary, some people say that our economic security 
is National security. Nearly 20 million Americans woke up this 
morning either unemployed or underemployed. Now, the President 
didn't mention these Americas when he announced his plan to 
grant de facto amnesty and work permits to up to 5 million 
illegal immigrants. He didn't discuss the competition this 
would create for them or the impact it would have on their 
pocketbooks. Your series of memoranda outlining this policy for 
him didn't mention them either.
    To address this problem and protect the American worker, I 
introduced legislation prior to the President's announcement 
that would make clear that illegal immigrants benefiting from 
his Executive amnesty are not authorized to work in the United 
States. When it comes to illegal immigration, the conversation 
is always about the illegal immigrant, not about the people 
that it will affect. You see, Mr. Secretary, I don't think it 
is fair, especially around the holidays, to put illegal 
immigrants ahead of the American worker.
    Secretary Johnson, the President keeps saying that his 
Executive Action will boost the economy. So tell me, how will 
adding at least 5 million new competitors to the workforce make 
it easier for the unemployed Americans to find a job?
    Secretary Johnson. Congressman, the fact is, as I am sure 
you know, that we have lots of undocumented in this country 
working off the books. If that is not apparent, then I suggest 
you spend some time in a restaurant here in the Washington, DC, 
area to see it for yourself. What we want to do is encourage 
those people to get on the books, and I will provide them a 
work authorization so that they may legally continue in the 
employment they now have.
    Mr. Barletta. But how does that make it easier for the 
American worker? We keep talking about the illegal immigrant. 
Here we go again talking about the illegal immigrant and how we 
can make it easier for them. How does this help the American 
worker who can't find work and can't provide for his family? 
Who is fighting for them? Why don't we talk about the American 
worker and what this will do to them, not what it will do for 
the illegal immigrant?
    Secretary Johnson. Well, the economy is getting better, as 
I am sure you know. The question of U.S. jobs, American jobs, 
is in my view a separate issue. What I want to do----
    Mr. Barletta. So adding 5 million more competitors for 
these jobs will make it easier?
    Secretary Johnson. If I may finish my sentence. The 
estimate is that the potential class is up to 4 million. Not 
all of those will apply. The goal is to encourage these people 
who are now working off the books, and we do have undocumented 
immigrants in this country working off the books, to get on the 
books, pay taxes into the Federal Treasury pursuant to a work 
authorization. The assessment is that that will not impinge 
upon American jobs with American workers.
    Mr. Barletta. Mr. Secretary, is it true that the illegal 
immigrants who were granted amnesty will not need to comply 
with the Affordable Care Act?
    Secretary Johnson. Those who are candidates for and are 
accepted into the deferred action program will not be eligible 
for comprehensive health care, ACA.
    Mr. Barletta. So therefore an employer may have a decision 
to make: Do I keep the American worker and provide health 
insurance or pay a $3,000 fine or do I get rid of the American 
worker and hire someone who I do not have to provide health 
insurance and I won't get fined? Is that a possibility?
    Secretary Johnson. I don't see it that way.
    Mr. Barletta. You don't think any employers will see it 
that way?
    Secretary Johnson. I don't think I see it that way, no. No, 
sir.
    Mr. Barletta. Following the 9/11 Commission report, the 
Commission staff issued a report on terrorist travel that made 
connections between enforcement of our immigration laws and 
National security. On Page 98 of that report it describes how 
terrorists would benefit from any form of amnesty. The report 
recognized that terrorists in the 1990s, as well as the 
September 11 hijackers, needed to find a way to stay in or 
embed themselves in the United States if their operational 
plans were to come to fruition. This tells us what we all know, 
that terrorists want two things. They want to get into this 
country, and then they want to stay here.
    Mr. Secretary, does the President's Executive Action 
facilitate just that by not heeding the advice of the 9/11 
Commission and its staff, and how can this administration 
justify its Executive Actions on immigration when it directly 
contradicts their findings?
    Secretary Johnson. The reality is that we have an estimated 
11.3 million undocumented in this country. From my Homeland 
Security perspective and from the perspective of someone whose 
principal mission is counterterrorism, I want to see those 
people come out of the shadows. I want to encourage people----
    Mr. Barletta. But you did testify in the last hearing----
    Secretary Johnson. If I may finish my sentence. I want 
people to submit to criminal background checks and come out of 
the shadows. The problem we have right now is we have 11 
million people in this country and we do not know who they are 
from the perspective of what you just read from that 9/11 
Commission report. We are vulnerable. I want people to come out 
of the shadows----
    Mr. Barletta. Mr. Secretary, you testified at the last 
hearing, and you agreed with me and your words were, most 
criminals do not subject themselves to criminal background 
checks.
    Secretary Johnson. I want as many as possible to submit to 
criminal background checks.
    Mr. Barletta. Thank you, Mr. Chairman.
    Chairman McCaul. Let me just say to the remaining Members, 
due to the time constraints of the Secretary, we are going to 
limit questioning to 3 minutes by unanimous consent. Without 
objection, so ordered.
    The Chairman now recognizes Mr. Swalwell from California.
    Mr. Swalwell. Mr. Secretary, does the number 2,577,516 mean 
anything to you?
    Secretary Johnson. It sounds familiar. I am not sure why it 
sounds familiar.
    Mr. Swalwell. Would it surprise you to learn that according 
to the American Immigration Council this is the number of 
immigrants granted temporary relief by Republican Presidents 
over the last 50 years?
    Secretary Johnson. That is news to me. That is a big 
number.
    Mr. Swalwell. Would it surprise you that not a single 
person who has sat on this dais with me, particularly among my 
GOP colleagues, made a single public statement criticizing any 
Executive Actions taken by any Republican Presidents with 
respect to immigration?
    Secretary Johnson. I am not sure what to say.
    Mr. Swalwell. Our Chairman has brought up a number of times 
that we have a bipartisan bill, something that I admire, that 
he was able to shepherd through this committee, yet it has not 
come to the floor for a vote. It is frustrating to me that we 
are bringing you here to criticize the President's actions, yet 
Speaker Boehner has a bill that addresses border security that 
has not been brought to the floor. I believe that in many ways, 
by silencing both sides of this issue by not allowing a vote, 
the Speaker in many ways is taking his own Executive Action 
that refuses to allow people who oppose immigration reform and 
those who support it to even be a voice of their district and 
take a vote.
    So with that in mind, I want to know, among the 11.3 
million undocumented immigrants, do you know, Mr. Secretary, 
how prioritizing felons over families for deportation, what 
that will do to make us safer as opposed to what we have been 
doing prior?
    Secretary Johnson. Well, the guidance that I issued is 
guidance in clearer terms that spells out exactly the types of 
offenses that are priority 1s, priority 2s. When we did our 
review, we found that there was a fair amount of ambiguity in 
the existing guidance that needed to be cleaned up because 
there was a lot of misunderstanding in the field that led to 
some of the cases of heartache that we all hear about. So the 
guidance is clearer.
    With that is a restart of the Secure Communities Program. 
Secure Communities is intended to get at criminals who are 
undocumented in jail. But there is a lot of resistance now to 
Secure Communities. So an integral part of this promoting 
public safety is a fresh start on the Secure Communities 
Program.
    The last thing I will say is when we talk about a bill, I 
believe the Speaker's desire for comprehensive immigration 
reform is genuine. I will say again that I am interested in 
working with Members of this committee, Members of the House of 
Representatives on a piece of legislation or pieces of 
legislation that addresses our system in a comprehensive way, 
in a way that our Executive Actions cannot reach.
    Mr. King [presiding]. The time of the gentleman has 
expired.
    The gentleman from Florida, Mr. Clawson.
    Mr. Clawson. Thank you for coming today, Mr. Secretary. I 
am not going to harangue you or badger you, and I will ask you 
to be quick with me so we can get right to what I want to know 
in all sincerity.
    In previous meetings that I have been here, I have been 
told a little bit of what you have said today, which we need 
more resources. Eight billion dollars is the backlog of CapEx 
for ports and so forth, as I understand. Going to spend $800 
million on new ports in the next 5 years, some of your border 
folks have told us. But when we ask for operational data to 
know what the bang for the buck is for the taxpayer, we really 
get very little data. If I was a board member and you and I 
were back in our previous lives, I would say, how can I say 
okay to more resources and more effort, more taxpayer 
involvement, when I don't know the return on investment for the 
CapEx and I don't know what the operational effectiveness is 
other than really macro data? Can you shed any light on that? 
Am I missing the boat here?
    Secretary Johnson. Well, I will shed light on my commitment 
to more transparency. I think part of the problem we have is 
lack of coherent data. So one of the things I directed in the 
Executive Actions that we issued week before last is I directed 
the Office of Immigration Statistics to create the capacity to 
collect, maintain, and report to the Secretary data reflecting 
the numbers of those apprehended, removed, returned, or 
otherwise repatriated, by any component of DHS. I also intend 
that this data be part of a package of data released by DHS to 
the public annually.
    So I am sympathetic to what you are saying, and I would 
like to see us in addition to this develop metrics for how we 
define border security so that the Congress and the public 
understands what we are driving for.
    Mr. Clawson. But I just don't know how much bang for the 
buck we are getting for the taxpayer dollar. So in addition to 
how many people we are capturing and how many are getting 
through, what is the return on investment for the money we are 
spending? It is hard for me to say yes or no to what is being 
asked if I don't know how well we are spending the current 
money and the money that has been----
    Secretary Johnson. I would encourage you, if you haven't 
already, to look at the speech I gave on border security in 
October to a think tank called CSIS, where I laid out a lot of 
the investment and a lot of the data concerning apprehensions 
of illegal immigrants to get at a clearer picture of what you 
are getting on the return on your investment.
    Mr. Clawson. Any data that would help us understand how 
well the Department is working will make it easier for us to be 
open-minded to working together as you say. Thank you.
    Secretary Johnson. There is a misapprehension that things 
are as worse as they have ever been. In fact, apprehensions of 
illegal immigrants is a fraction of what it used to be, in 
large part because of the investment that this Congress has 
made in border security we are seeing a return on investment. I 
think we can do better, but we have invested a lot in 
surveillance, personnel, as the Chairman knows and others, over 
the last 15 years, and we have seen a return on investment. 
Apprehensions used to be 1.6 million. They are now down to 
between 400,000 and 500,000. But I believe we can do better.
    Mr. King. The time of the gentleman has expired.
    The gentlelady from California is recognized.
    Ms. Sanchez. Thank you, Mr. Chairman.
    Thank you, Secretary, for being before us. I had the 
pleasure of working with you when you were over at the Defense 
Department, and I am glad you are staying on at Homeland 
because this is a very, very critical time. I am worried, being 
double-hatted sitting on Defense and Homeland, I am worried 
about threats from ISIS and terrorists and coming into our 
country or being embedded in our country or some would say 
mentoring candidate or what have you, but here we are. We are 
here to protect America and to protect Americans. So thank you 
for the work that you and all the people who work in your 
Department do on our behalf.
    I want to go back to something that you said, the whole 
issue of having background checks on people, because I live in 
California. We have a lot of people there who for whatever 
reason don't have the right documents to be in our country. 
Some actually would qualify and have qualified under our 
programs, under the legal, but if they have to wait 10 years 
away from a loved one because they have to wait outside of the 
country, they have probably broken that and they have decided 
to stay and live those 10 years here with their loved one or 
their child rather than do what we do to them, which is to push 
them out for 10 years. There are people who just--it has taken 
too long. The backlog is just so long for some of these people 
to get through the process even though they qualify under 
everything.
    So I am thrilled that we are going to get good people who 
are our deacons in our churches, they are PTA moms, to come 
forward, to give us their data, to give us their fingerprints, 
to pay a fine, and to say, let us work, let us go on with our 
lives here, especially if they have USA-born children or legal 
residents. I am thrilled that the President understands that.
    But I am even more thrilled about it because that allows 
these limited resources that we have to be trained on the 
people that I really want to go after, and that is these 
terrorists and these threats to our country. A lot of people 
say, well, you are Hispanic, Loretta, so you care about the 
Latino community. I have to tell you, I have got one of the 
largest Asian populations in the Nation. I have got Romanians. 
I have got all sorts of people who have come from other 
countries, many of them working, some of them paying taxes, but 
many of them working and wanting to get on an even footing here 
in the United States.
    So I just want to thank you, Mr. Secretary, because I know 
that you sat down and you took a look and you used your lawyer 
skills and everybody else's skills to sit down and figure out 
how do we make sure that the limited resources we have are 
trained on the bad guys, not on the people who are really part 
of our American family? So I just want to thank you.
    Mr. King. Time of the gentlelady has expired.
    Gentleman from South Carolina.
    Mr. Sanford. Thank you, Mr. Chairman.
    Mr. Secretary, delighted to be with you again. I have but 3 
minutes, I am going to try and ask three quick questions, and 
therefore I would ask for your brevity if possible.
    First question is, I mean, fundamentally a question about 
fairness, which is I think one of the things that a lot of 
people struggle with on the notion of the President's Executive 
and unilateral action is that it will put a lot of families 
from around the world in essence in a second-class bus. My 
question to you would be: Is it fair to those families who have 
been waiting in the queue in terms of immigration to go behind 
a bunch of folks that in essence will get favorable status 
based on the Executive Action?
    Secretary Johnson. Well, that is not what we have done, 
sir. Through Executive Action we cannot grant citizenship, we 
cannot put somebody in the head of the line for citizenship, 
and we are not granting lawful permanent residence. Deferred 
action is simply for a period of time a determination that 
someone should be lawfully present in the country, which is a 
significantly lower form of status.
    Mr. Sanford. Fair enough, but it is de facto citizenship in 
that they are able to live here, work here, raise families 
here, et cetera. I will quickly move on to the second question.
    Secretary Johnson. In fact, they already are.
    Mr. Sanford. What is that?
    Secretary Johnson. In fact they already are.
    Mr. Sanford. They are, but they don't have the legal claim 
to our entitlement system that they now will. I mean, if you 
look at our entitlement system, it is $18 trillion in the hole, 
and most of them are based on being lawfully present in this 
country to be eligible for entitlements. So, I mean, how do you 
say to that family in Mississippi who has been struggling to 
make it, our entitlement system is based in paying for the 
whole of your life, you get to the retirement age, and then you 
begin to collect, what do you say to that family, your 
retirement system, your health care system as it is provided by 
Government will be less financially solvent than it would have 
been based on this unilateral action? What would you say in 
terms of fairness there?
    Secretary Johnson. I would say that the people we are 
talking about are already here. They have been here for years. 
They have become integrated members of society, and I want them 
to come forward----
    Mr. Sanford. But they are not going to collect Social 
Security or Medicare----
    Secretary Johnson [continuing]. And contribute to the tax 
base of this country.
    Mr. Sanford. But they won't collect the way they will, and 
the question is: Do you get more than you give? The Wall Street 
Journal had a very interesting editorial within the last 2 
weeks on that very point. I see I am down to 34 seconds.
    The last question is, in your opening statements, a lot of 
the attributes that you defined could be handled perfectly by 
work permits. Why not just do work permits rather than this de 
facto sort of quasi-citizenship that comes with this Executive 
Action?
    Secretary Johnson. Work authorization is something the 
Secretary of Homeland Security has the authority to give by 
statute to someone who has been granted deferred action, so 
that is what we did.
    Mr. Sanford. I see I have 3 seconds, Mr. Chairman. I would 
go for a second question, but don't have it.
    Mr. King. You guys speak more slowly than we do.
    The gentlelady from New York, Ms. Clarke.
    Ms. Clarke. Thank you, Mr. Chairman.
    There was a statement made earlier by the gentleman from 
South Carolina, Mr. Duncan, that I know was a gross 
generalization about the American people as it relates to the 
Executive Order issued by President Obama. So for the record, 
overwhelmingly the Americans in my district laud and support 
what President Obama has done, and they have your back.
    I want to ask Secretary Johnson, the President's Executive 
Action was certainly a step in the right direction, and for 
many it speaks to the moral, social, and family-related reasons 
that will have a positive effect on our civil society.
    However, I want to get to the economics of this, because it 
has been raised by a number of colleagues and particularly Mr. 
Barletta. It was estimated recently by the Center for American 
Progress that this Executive Action will raise an additional $3 
billion in payroll taxes in the first year alone, and $22.6 
billion over 5 years as workers and employers get on the books 
and begin paying taxes for the first time. Even individual 
States will gain from this. Do you believe that the economic 
factors like these should play a role in determining our 
immigration policy?
    Second, the issue of Securing the Cities. The program 
fingerprints individuals booked in State and local jails and 
submitted electronically to the FBI for criminal background 
checks. It allows ICE to identify potentially removable 
individuals. The question is, the program has been 
controversial, both legally and politically, as you know. It is 
my understanding that the Priority Enforcement Program, which 
will replace Securing the Cities under the administration's 
plan, will rely on the same technology as Securing the Cities 
but would focus on individuals in State and local custody who 
have been convicted of felonies and significant misdemeanors. 
Please explain how PEP will maintain the biometrics collection 
and background checks under Securing the Cities while also 
addressing important concerns raised by the courts, advocates, 
and local communities about Securing the Cities.
    Secretary Johnson. Well, you characterized it accurately. 
To address the legal concerns that are arising in litigation we 
are no longer going to be putting detainers on people. Instead 
we will have request for notification. A detainer in litigation 
has often, and the court determines that State and local law 
enforcement did not have the legal authority to hold that 
person simply because of a detainer when they would have 
otherwise released them. So in place of that, we are going to 
have request for notification so that we are notified before 
the individual is released, unless we have probable cause to 
tell the NYPD, for example, that the person is undocumented and 
will be removed.
    I agree with your question about, should economics play a 
role in immigration policy? I am not an economist. I will refer 
you to the President's Council of Economic Advisors' analysis 
which was issued week before last on the impact of our 
Executive Actions on the economy.
    Ms. Clarke. Thank you.
    Mr. King. The time of the gentlelady has expired, and I now 
recognize myself for the purpose of questioning.
    Secretary, it is good to see you today. Thank you for being 
here.
    Let me begin my questioning on a positive note. I was in a 
meeting the other night with a number of Republicans from New 
York who strongly opposed the Executive Order, but several of 
them went out of their way to say they had dealt with you as a 
lawyer and they have the highest regard for your integrity and 
professionalism. Totally unsolicited, they made a point of 
saying that first. I agreed with them.
    Secretary Johnson. It goes downhill from here. Thank you.
    Mr. King. Downhill, yeah.
    No, I am opposed to the Executive Order for a number of 
reasons. We can discuss, you know, the legal merits of it, but 
I am influenced greatly by the Youngstown Sheet and Tube case, 
where Justice Jackson--where the Court struck down the 
Executive Action by President Truman, and he was saying that 
Executive Action in questionable cases must be scrutinized with 
caution. Because he said, what is at stake is the equilibrium 
established by a Constitutional system.
    That is what I see here as being--apart from all the 
legalities, which I think are significant, is the fact that, 
for the American people to have faith in the Government, they 
should feel that there is good faith coming from both sides.
    In this case, we had the President time and again saying he 
did not have the power to do this. We have the fact that any 
time over the last 6 years the President could have issued this 
Executive Order, the fact that he did not issue the Executive 
Order until after the elections were over.
    If the President felt there was a consensus among the 
American people, then this should have been part of the 
campaign debates. That is how in a democracy people express 
their views. The fact is, they were virtually silent on this 
issue throughout the campaign. The campaign is over, 
Republicans win both houses, and then the President issues this 
order.
    I would say that if the President is sincere about wanting 
legislation and if he believes he has the right to issue this 
order, why didn't he say he realizes things have changed in the 
Congress, he disagrees with the fact that the House did or did 
not act, and set a deadline of July 1, and as of July 1 he 
could issue his Executive Order, we could take what action we 
want against it, whether it is legislative, whether it is 
appropriations-wise?
    But during that 6 months, the President would have an 
opportunity to frame the National debate on trying to come to 
an immigration bill. He would be able to focus attention on it. 
Then you would have seen Republicans in the House and the 
Senate being in a position where they would have to deal with 
the President.
    Then if July 1 comes along and there is no--I am using that 
as an arbitrary date; it could be any date--then the President 
could issue the Executive Order, and the American people could 
decide who was right and who was wrong. Congress could take 
what action it felt it had to. The President, through you, 
could go ahead and implement the order.
    So I just feel--and I use these words advisedly--that there 
was bad faith in issuing the Executive Order at this time. If 
we are trying to get the confidence of the American people, 
this is not the way to do it.
    Secretary Johnson. I guess, in response, Chairman, I would 
say we did do that. We did exactly that. We said we were going 
to do this in the spring, and the President decided to wait 
over the summer to see whether the Congress would act.
    The Speaker, whose desire for immigration reform I believe 
is genuine, had hoped that he could get immigration reform 
through the House of Representatives. That did not happen. The 
President said he would wait. The Speaker told him, we are not 
going to get a bill.
    Then we decided to wait until after the mid-terms, even 
further, and here we are. We have done a lot of waiting. We 
waited for several years, sir.
    Mr. King. I just think the President's Executive Order--
again, the impression it would leave is he is trying to undo 
the impact of the election. If he felt that strongly about it, 
he should have issued it before the campaign.
    But my time has expired, and I am not trying to end your 
discussion. Again, my respect for you.
    Now my friend from New Jersey, Mr. Payne.
    Mr. Payne. Thank you, Mr. Chairman.
    Mr. Secretary, always a pleasure to see you here. I want to 
say that I am also delighted that you will be staying on at 
Homeland Security. I think that you, in your time there, have 
brought that organization together tighter and more efficient. 
For that, I thank you.
    It is my understanding that this Executive Order--this 
Executive Action will only last for 2 years under the Obama 
administration, and it is not clear what will happen to the 
millions who are affected under DACA and now DAPA when the 
administration is over. This creates a lot of uncertainty, in 
my opinion, and underscores the need for Congressional action 
to clear up and fix this broken immigration system.
    So, in your opinion, what will happen to the children and 
parents who are being encouraged now to come out of the shadows 
in 2 years if nothing happens?
    Secretary Johnson. Well, the nature of Executive Action is 
that the next Executive can undo it. I would hope that that 
would not happen here. Administration to administration, we do 
not typically undo administrative Actions, Executive Orders, 
particularly where you are affecting in what I think would be a 
rather harsh manner the lives of people who are here in this 
country.
    So my hope is, first, over the next 2 years, there is 
legislation that, in effect, addresses the same phenomenon in 
the same way. But in the absence of that, my hope is that these 
Executive Actions are sustained as good Government policy.
    Going forward--I want to emphasize this--going forward, 
those apprehended who came here illegally January 1, 2014, 
under our existing policy, are priorities for removal and will 
not be eligible for deferred action going forward. So there is 
a clear demarcation between those who have been here for years 
and those who would think to come here in the future illegally. 
Those people will be priorities.
    Mr. Payne. How can Congress help ensure that these millions 
of people are not encouraged to go back into the shadows in 2 
years?
    Secretary Johnson. Support us through legislation.
    Mr. Payne. So it is really time Congress stood up and 
helped fix this problem rather than throwing darts at the 
administration.
    Secretary Johnson. That is my hope. I believe that it is a 
solvable problem legislatively, and I believe that if we can 
remove the emotion and the politics we can achieve it. There 
are several Members of this committee who I believe I could 
work with on a comprehensive solution legislatively.
    Mr. Payne. Thank you, Mr. Secretary.
    I yield back.
    Chairman McCaul [presiding]. The Chairman recognizes Mr. 
Meehan.
    Mr. Meehan. Thank you, Mr. Chairman.
    Thank you, Secretary, for being here. You know I have a 
great deal of respect for you. You are an attorney. But I have 
some fundamental disagreements with a couple of the points that 
were made, and I just need your articulation on this.
    You are the one who said somehow somebody may be--what you 
are doing is creating an opportunity for them to lawfully be 
here in the country. Now, I think it is an unquestioned point 
that, as the law stands today, anybody who illegally enters the 
United States is a deportable alien. That is the Congressional 
intent.
    But what has happened by this directive is the President 
has stepped into the authority of Congress, the Constitutional 
authority, to determine that, under the existing law, you have 
identified that somebody will lawfully be here so long as 
they--using prosecutorial discretion, they won't be deported if 
they are not a threat to National security, aren't a threat to 
public safety, or aren't a threat to border security.
    How can you create a class of people who are beyond 
prosecution and not be violating the Constitutional separation 
of powers in which Congress has clearly articulated its intent?
    Secretary Johnson. Well, first, during the period of 
deferred action--that is what it is, deferred action--you can 
lose membership in that program if you commit a crime, for 
example.
    Mr. Meehan. But you can also have a lawfully articulated 
ability under the President's directive to be here if you 
don't. That is an expression of a Constitutional protection 
that does not exist except for the President's overreach of 
prosecutorial discretion.
    Secretary Johnson. Congressman, this type of action has 
existed in one form or another going back decades. It was 
exercised in the Reagan and Bush administrations----
    Mr. Meehan. No, Mr. Secretary, I will not allow you to go 
there. It was exercised after authorized activity by the 
Congress in which they were continuing to----
    Secretary Johnson. To protect a class of people that the 
Congress did not.
    Mr. Meehan. No, but the Congress already clearly 
articulated an intent to include those, and there was the 
fulfilling of Congressional intent. Here, you have created a 
class of people in contravention of Congressional intent.
    Secretary Johnson. Well, first of all, an assessment of 
deferred action will be made on a case-by-case basis.
    Now, if I may, sir, the way I look at it is this. I know 
you will appreciate this. When I was an assistant United States 
attorney, we used to--and I am sure this was true in your 
office when you were a U.S. attorney--we used to enter into 
deferred prosecution agreements with individuals. You committed 
a crime, or you may have committed a crime, you have been 
charged, but if you, in effect, behave for the next 6 months, 
12 months, a year, whatever, we are going to defer 
prosecution----
    Mr. Meehan. I understand that. My time is limited.
    Secretary Johnson. That is, in effect, what we are doing 
here.
    Mr. Meehan. We all understand prosecutorial discretion. 
This changes that, however, which creates a class of people, 
despite prosecutorial discretion, who may be here because the 
President created that category, not Congress. That is a clear 
violation of the Constitutional principles. Apart from our 
desire to work together, he is acting in a capacity beyond 
where he has the ability to do so.
    Secretary Johnson. Sir, I respectfully disagree.
    Mr. Meehan. On what basis?
    Secretary Johnson. They are present--they are lawfully 
present in this----
    Mr. Meehan. Lawfully? How are they lawfully here when the 
intention of Congress was very clear, they can be deportable? 
It doesn't mean they will be deportable----
    Secretary Johnson. But, sir----
    Mr. Meehan [continuing]. But now you are saying----
    Secretary Johnson [continuing]. The Congress has not given 
me the resources to deport 11 million people.
    Mr. Meehan. I appreciate that fact.
    Secretary Johnson. That does not exist. They are here.
    Mr. Meehan. That is prosecutorial discretion----
    Secretary Johnson. So, if I may----
    Mr. Meehan [continuing]. If they are not lawfully here.
    Secretary Johnson. If I may----
    Mr. Meehan. We are choosing--every speeder on 95 could be 
stopped, but we can't stop everyone, but that doesn't mean that 
they aren't going over the speed limit. Your level says there 
is no speed limit.
    Secretary Johnson. If I may finish my sentence. They are 
here. From my Homeland Security perspective, I want them to 
come forward and get on the books and receive a work 
authorization----
    Mr. Meehan. Mr. Secretary, they are here, but you said they 
were lawfully here. Under Congressional intent, they are not 
lawfully here. Yet the President has created that category out 
of whole cloth.
    Secretary Johnson. This is a form of Executive Action that 
was not invented in this administration. It goes back decades, 
sir.
    Mr. Meehan. Secretary, it was. I am sorry to disagree with 
you.
    Chairman McCaul. The gentleman's time has expired.
    Mr. Meehan. I will work with you, but I disagree with you.
    Chairman McCaul. Mr. Perry from Pennsylvania.
    Mr. Perry. Thank you, Mr. Chairman.
    Mr. Secretary, appreciate your service.
    Is there a forged document system present that has been 
operating for some time that allows illegal immigrants to avoid 
the law?
    Secretary Johnson. I am sorry. What was your question?
    Mr. Perry. Is there a forged document system present in 
some form around the border, where people that would come here 
illegally obtain Social Security numbers and other documents 
that provide them access to America to----
    Secretary Johnson. In other words, a criminal network that 
provides false----
    Mr. Perry. Whatever you want to call it. Is there one 
present?
    Secretary Johnson. I would imagine that there is, sir.
    Mr. Perry. Is using forged documents to gain access to the 
Nation, employment, social services, et cetera, would we 
consider that lawful?
    Secretary Johnson. I do not believe so, no.
    Mr. Perry. Okay. I would agree with you.
    What is the DHS estimate for those here illegally, 
including those with terrorist affiliations or motives, who 
have used falsified documentation to gain access to our Nation 
and the other things I described?
    Secretary Johnson. I don't have that number off-hand, but I 
can get it for you.
    Mr. Perry. You have a number?
    Secretary Johnson. Well, if there is such an estimate, I 
will undertake to get it to you.
    Mr. Perry. Okay. Listen, I am sure there is an estimate. I 
am sure it is just an estimate, because they are unlawful. But 
I will also say that we have written your office on several 
occasions requesting information and have not gotten any 
answers. So I am just concerned about the ability or your 
willingness to give us those answers.
    But let me just cite a couple examples for you.
    We have Major League Baseball players who have become MVPs, 
made millions of dollars, and after the fact we found out as 
Americans that they weren't here lawfully and used forged 
documents. These are very high-profile people.
    An individual in California, deported three times, came 
back on the fourth time and shot a police officer dead.
    You have an individual that was residing in North Carolina, 
came up to Baltimore, kidnapped a 13-year-old girl and raped 
her. That person was here illegally and deported on numerous 
occasions and used falsified--all have used falsified 
documents.
    To that end, Mr. Secretary, my question is: How will your 
Department screen these folks, including background checks, to 
ensure the security of the citizens of America? Especially when 
people that don't, you know, recognize or respect the law, 
terrorists, people with terrorist ties and affiliations or 
motives that won't use proper documentation and won't come 
forward, how can we as the American citizens be confident that 
this plan to screen up to 5 million people that came here 
knowingly unlawfully, in many cases--in many cases, not all, 
but many--how can we have any confidence, based on those 
examples that I have already cited, any confidence that your 
agency and that this policy is going to work?
    Secretary Johnson. Based on the experience that we had with 
the program 2 years ago, I believe that we will be vigilant in 
terms of looking for fraud in the application process.
    The other part of my answer to your question, sir, is, 
through our reprioritization, I want to get at the criminals. I 
want clearer guidance so that our ERO enforcement workforce has 
the ability and the capability and the resources and the time 
to go after the type of individuals that you cite.
    Mr. Perry. We want that, too, but, with all due respect, 
Mr. Chairman, I have no confidence and I don't think the 
American people have any confidence that that is going to work. 
We appreciate, you know, your hope. We appreciate that with the 
resources being targeting to those individuals, maybe it could 
be better. But I see no plan and you have given me no plan at 
this point with any specific metrics or anything like that.
    We have been working on this for years. None of us want 
these people in our community. I have two daughters. Heaven 
forbid one of them falls prey to something like that, and I can 
come to you and say, ``Well, what did you do about it?'', and 
you said, ``Well, we hoped for better.'' Mr. Secretary, that is 
just not an adequate answer.
    Secretary Johnson. Well, that would not be----
    Mr. Perry. Thank you, Mr. Chairman. I yield back.
    Secretary Johnson. That would not be an accurate 
characterization of my answer either.
    I am happy to brief you and other Members of this committee 
on the implementation plan that CIS has put together. We have 
spent considerable time on it.
    If you let me know the last time you sent me a letter that 
was unanswered and the date, I will be sure that it is 
answered.
    Mr. Perry. Thank you.
    Chairman McCaul. Thank you, Mr. Secretary. Let me just say 
that I don't envy your position right now, but it has been a 
productive hearing. I think you have been forthright in your 
answers. It is a very emotional, divisive issue that I hope we 
can resolve in the Congress.
    I can tell you this committee--and I think the Ranking 
Member feels the same way--we are committed to passing in the 
next Congress a border security bill, and we look forward to 
working with you on that.
    Thanks for being here.
    Secretary Johnson. Thank you.
    Chairman McCaul. This hearing stands adjourned.
    [Whereupon, at 11:16 a.m., the committee was adjourned.]


                            A P P E N D I X

                              ----------                              

 Questions From Honorable Susan W. Brooks for Honorable Jeh C. Johnson
    Question 1. In your testimony you said, ``We encourage those 
undocumented immigrants who have been here for the last 5 years, have 
sons or daughters who are citizens or lawful permanent residents, and 
do not fall into one of our enforcement priorities to come out of the 
shadows, get on the books, and pass National security and criminal 
background checks.'' In this context, please explain what you mean 
exactly when you say to ``get on the books''?
    Answer. Response was not received at the time of publication.
    Question 2. Under the current law and before the Executive Order, 
where did undocumented immigrants fit into the pipeline of those 
immigrants waiting to become citizens the legal way?
    Now under the Executive Order, where do undocumented immigrants who 
are lawfully present fit into the pipeline of those currently waiting 
to become citizens the legal way?
    Answer. Response was not received at the time of publication.
    Question 3. From where is USCIS getting the funds to carry out this 
Executive Order?
    Will resources be diverted away from those going through the legal 
process of becoming a citizen to carry out this Executive Order?
    Answer. Response was not received at the time of publication.