[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS FOR 2016
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
_______
SUBCOMMITTEE ON HOMELAND SECURITY
JOHN R. CARTER, Texas, Chairman
JOHN ABNEY CULBERSON, Texas LUCILLE ROYBAL-ALLARD, California
RODNEY P. FRELINGHUYSEN, New Jersey DAVID E. PRICE, North Carolina
CHARLES J. FLEISCHMANN, Tennessee HENRY CUELLAR, Texas
ANDY HARRIS, Maryland MARCY KAPTUR, Ohio
CHRIS STEWART, Utah
DAVID YOUNG, Iowa
NOTE: Under Committee Rules, Mr. Rogers, as Chairman of the Full
Committee, and Mrs. Lowey, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
Valerie Baldwin, Kris Mallard, Laura Cylke,
and Anne Wake,
Staff Assistants
_______
PART 3
DEPARTMENT OF HOMELAND SECURITY
Page
Immigration and Customs Enforcement...
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Customs and Border Protection.........
81
Federal Emergency Management Agency...
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Printed for the use of the Committee on Appropriations
________
U.S. GOVERNMENT PUBLISHING OFFICE
96-904 WASHINGTON : 2015
COMMITTEE ON APPROPRIATIONS
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HAROLD ROGERS, Kentucky, Chairman
RODNEY P. FRELINGHUYSEN, New Jersey NITA M. LOWEY, New York
ROBERT B. ADERHOLT, Alabama MARCY KAPTUR, Ohio
KAY GRANGER, Texas PETER J. VISCLOSKY, Indiana
MICHAEL K. SIMPSON, Idaho JOSE E. SERRANO, New York
JOHN ABNEY CULBERSON, Texas ROSA L. DeLAURO, Connecticut
ANDER CRENSHAW, Florida DAVID E. PRICE, North Carolina
JOHN R. CARTER, Texas LUCILLE ROYBAL-ALLARD, California
KEN CALVERT, California SAM FARR, California
TOM COLE, Oklahoma CHAKA FATTAH, Pennsylvania
MARIO DIAZ-BALART, Florida SANFORD D. BISHOP, Jr., Georgia
CHARLES W. DENT, Pennsylvania BARBARA LEE, California
TOM GRAVES, Georgia MICHAEL M. HONDA, California
KEVIN YODER, Kansas BETTY McCOLLUM, Minnesota
STEVE WOMACK, Arkansas STEVE ISRAEL, New York
JEFF FORTENBERRY, Nebraska TIM RYAN, Ohio
THOMAS J. ROONEY, Florida C. A. DUTCH RUPPERSBERGER, Maryland
CHARLES J. FLEISCHMANN, Tennessee DEBBIE WASSERMAN SCHULTZ, Florida
JAIME HERRERA BEUTLER, Washington HENRY CUELLAR, Texas
DAVID P. JOYCE, Ohio CHELLIE PINGREE, Maine
DAVID G. VALADAO, California MIKE QUIGLEY, Illinois
ANDY HARRIS, Maryland DEREK KILMER, Washington
MARTHA ROBY, Alabama
MARK E. AMODEI, Nevada
CHRIS STEWART, Utah
E. SCOTT RIGELL, Virginia
DAVID W. JOLLY, Florida
DAVID YOUNG, Iowa
EVAN H. JENKINS, West Virginia
STEVEN M. PALAZZO, Mississippi
William E. Smith, Clerk and Staff Director
(ii)
DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS FOR 2016
________
Wednesday, April 15, 2015.
IMMIGRATION AND CUSTOMS ENFORCEMENT
WITNESS
SARAH R. SALDANA, DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT
Mr. Carter. Director Saldana, welcome to the subcommittee.
We are happy to have you here. I believe this is the first time
we have had a chance to visit with you and we are looking
forward to having you. Today's hearing is your first as
director of the Immigration and Customs Enforcement, ICE.
Director Saldana comes to this position from the great
State of Texas. She is a fellow Texan. We will try to be nice
to her. There she served as the U.S. Attorney for the Northern
District of Texas. Prior to that, she served as the Assistant
U.S. Attorney and prosecuted a variety of criminal cases
including human trafficking, public corruption, and bank and
mortgage fraud.
Director, you have a challenging job. Enforcing immigration
and customs laws and investigating and dismantling
transnational criminal organizations is not easy, but it is
essential. We look forward to working with you and the men and
women at ICE and encourage you to keep us as well informed as
you can of all operations.
All in all, the President's budget request for ICE is
pretty good. Overall, spending is at $6.3 billion which is $16
million below fiscal year 2015.
As required by law, the request includes $2.4 billion for
34,040 detention beds of which 31,280 are for adult detention
and 2,760 for families; $122 million is for alternatives to
detention to monitor an estimated 53,000 aliens, and funds
sufficient to cover the cost of 6,200 criminal investigators
and 5,800 deportation officers and immigration enforcement
agents.
Though these recommendations are sound, I have a few
concerns. First and foremost, the budget assumes funding for
100 percent staffing, yet, according to preliminary budget
analysis, the number of onboard investigative staff is far
lower than budgeted. Whether they can be hired before the end
of the fiscal year is questionable. In fact, I wonder whether
you can spend the funds appropriated in fiscal year 2015
appropriations package.
Next, I am pleased that the request assumes funding for
34,040 detention beds as mandated by law. I am surprised,
however, that the request for 2,760 family units is 972 units
lower than last year.
Last September, the Administration requested funds for
3,732 new family detention units and Congress provided
appropriations to that level. Reduction indicates a portion of
the funds provided in fiscal year 2015 are no longer necessary,
and we need to get to the bottom of this.
Before I turn to Ms. Saldana for her statement, the text of
which will be included in the record, I would like to recognize
the distinguished ranking member, Ms. Royal-Allard, for any
remarks that she may wish to make.
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Ms. Roybal-Allard. Thank you, Mr. Chairman.
And good morning, Director Saldana, and congratulations on
your confirmation as director. And welcome to your first
appearance before this subcommittee.
Of the fiscal year 2016 discretionary budget request for
U.S. Immigration and Customs Enforcement, $5.97 billion which
is a slight increase of $6.3 million above the fiscal year 2015
level, the total includes $345 million for 2,760 family
detention beds which is nearly 20 percent of the overall
detention budget. And this extremely costly proposition is one
of the issues which I will be asking you about this morning.
Also when the secretary testified before the subcommittee a
few weeks ago, I mentioned to him that the toughest mission for
the department is the enforcement of our immigration laws
because it exposes a tension among values we as Americans hold
dear such as obeying the law, protecting children, and keep
families together.
While I realize we cannot open our borders to everyone who
wants to come here for a better life, I do believe that it is
important to keep those values in mind. And this will help to
ensure that as we discuss your agency's immigration enforcement
mission, we do so in the context of ensuring individuals are
treated humanely and afforded due process under our laws.
ICE has many areas of responsibility where it deserves
credit for its performance. And I would just to like to
highlight a few of those.
Last year, ICE dismantled eight alien smuggling
organizations involving the arrest of 37 smugglers. ICE also
identified and provided assistance to 446 human trafficking
victims and more than 1,000 child exploitation victims. And
just last week, among other things, ICE announced the arrest of
19 individuals wanted for murder and 15 for rape.
As I mentioned earlier, however, there are areas where I
have significant concerns such as the exorbitant cost of family
detention beds. Other areas I would like to discuss have to do
with how ICE is making use of alternatives to detention and the
status of implementing and adhering to the agency's revised
enforcement priorities.
I also hope we will have time this morning to focus on your
important investigative missions, most of which are not
directly related to immigration enforcement, including human
trafficking and child exploitation.
So thank you again for being here and I look forward to our
discussion this morning.
[The information follows:]
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Mr. Carter. All right, Director. We now will recognize you
for a summation of what you have submitted to the committee in
approximately five minutes, if you can.
Ms. Saldana. Thank you, sir.
And I do not seem to have a working thing, but that is not
unusual, I guess. Somebody will hit me with a hammer or
something if----
Mr. Carter. Are you pushing the button? It should light up
green when you are ready to talk. Does it not work?
Ms. Saldana. Can you hear me? I mean, I do not think it is
going to be hard to hear me.
Mr. Carter. I think your mike is on.
Ms. Saldana. Okay. Thank you, sir.
You are right. This is my first appearance before this
committee. I was just with Judiciary Committee yesterday and we
had some lively conversation. I think I am prepared for you all
today. I will thank the Judiciary Committee later.
From my early days as an Assistant United States Attorney
just cutting my teeth on the immigration docket to the time
that I have spent here, a little bit short of four months as
the director of ICE, I have seen firsthand over these several
years the commitment, dedication, and hard work shown by the
agents, the international staff, the lawyers, mission support
staff, all our folks at ICE and am very, very proud to be
serving as the director.
I get kidded a lot about that, but I will tell you that
this is the place I should be right now in this critical moment
in our history.
As you all know, ICE has about 400 laws we have to enforce.
As a U.S. Attorney, I had about 3,000 plus that I had to
enforce in the North Texas area. I appreciate the importance of
the mission of ICE, Homeland Security, National Security,
enforcement of customs laws, smuggling activities,
transnational crime, and I know that you all do as well.
And I am really looking forward to a productive
relationship because that is why I am here is because I would
like to attempt in the short time I have to do the best I can
for the country and for this agency which I am very proud to
lead.
I am pleased with our 2016 budget submission of $6.28
billion. It is very much in line with the 2015 enacted budget
for which we are very, very grateful. Following years of
sustained and painful budget cuts as well as the threat of
sequestration and shutdowns, you all can imagine how difficult
it has been to manage our finances.
But now with this budget, I think it will strengthen our
financial footing to enable ICE to expand efforts that are core
to its mission including immigration, the transnational crime
and investigations you spoke about, Ranking Member Roybal-
Allard, and investment in information technology needed to meet
the security challenges of this 21st century.
These areas along with the improvement of morale at our
agency actually parallel my own goals for the agency. And I am
very much focused on cyber security and homeland investigations
and counter-terrorism work and focusing our efforts on those
people who are immigrants, undocumented immigrants in the
country who pose a threat to our communities.
So as the principal investigative arm of the department,
the Office of Homeland Security Investigations, we refer to it
as HSI, does criminal investigations to protect the United
States against terrorism and other criminals and to bring to
justice those seeking to exploit our customs and immigration
laws worldwide.
Notably in 2014, ICE investigations led to the disruption
or dismantlement of 520 transnational criminal organizations.
And I cannot tell you how impressed I am. I have now visited
one, two, three, four, five, six countries in the less than
four months that I have been onboard including going around the
world. I did go around the world on one trip and lived to tell
about it.
And I am just so impressed with our international people,
our attaches, our deputy attaches, and the tremendous support
they bring to our investigations. It is critical to have those
folks out there obviously as well as our domestic agents.
In connection with those investigations, we made more than
32,000 criminal arrests and seized more than 2.3 million pounds
of narcotics, 23,000 weapons, and $722 million in currency
aligned with our financial investigations.
The President's budget requests $1.99 billion for ICE to
continue these investigative efforts. Specifically the budget
increases domestic investigative capacity to hire special
agents and investigative support staff, an area that is very
critical.
And I do understand your concerns, Mr. Chairman, with
respect to the hiring and that is an area that is of utmost
importance to me. We are up and running and have interviews and
other things already in effect and I will be happy to fill you
in more detail.
The budget also requests $26 million, additional dollars
for human smuggling and human trafficking which is an area that
I prosecuted substantially when I was an Assistant United
States Attorney.
To prioritize the removal of those living unlawfully in the
United States, ICE devotes its resources to areas that hold the
highest risk to our communities.
In 2014, I think you have seen the numbers, we removed
316,000 individuals unlawfully present in the United States.
More than 213,000 of these were apprehended while or shortly
after attempting to cross our borders and 102,000 were
apprehended in the interior of the United States.
I should point out that 85 percent of those interior
removals were of immigrants previously convicted of criminal
offenses. That is an 18 percent increase over prior years, 2011
in particular, and it reflects the agency's renewed focus on
aggressively targeting and removing the worst criminal
immigrants, security threats, felons, gang members, and the
like.
This budget for 2016 requests $3.3 billion to deter illegal
entry into the United States with full funding for the 34,040
beds you mentioned, Mr. Chairman, including family units, 129
fugitive operation teams, a very important part of what we do,
and increased use of alternatives to detention that effectively
manage risk while also reducing the detention costs the ranking
member mentioned earlier.
Of course, the other side of this coin is the work of our
attorneys whose work is vital to moving cases along so that we
can remove people, so we can get a final order and a
disposition with respect to those people we want to see
removed. And the attorneys are vital in that.
With the new attorneys that we are requesting, we think we
can address their very heavy workloads and decrease the average
length of stay of detainees which, as you all know, can get
very expensive very quickly.
The 2016 President's budget also requests $73.5 million to
improve ICE's information technology infrastructure and
applications. It is old. In order to manage, I have to review
data all the time. In order to oversee our operations, you all
need to review data all the time. And this $73.5 million is
critical.
Due to reduced budgets and sequestration, ICE's capital
investment budget has decreased by 71 percent from a high of
$90 million in 2010 to $26 million this year.
Some of the systems are reaching the end of their life
while others need to be modernized to improve interoperability,
data sharing, and reporting capabilities to you and to the
American people. I cannot emphasize enough how critical
investing in our information technology is for our
investigative and enforcement capabilities.
I just want to conclude by thanking you for your continued
support and I am ready to answer any questions you may have.
[The information follows:]
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Mr. Carter. Well, thank you, Ms. Saldana, for that
summation. We appreciate it very much.
And I am going to start out by jumping off into a subject
that is weighing upon my heart pretty heavily and I would hope
most of the members, if not all the members of this
subcommittee.
It has been reported in the press to this committee that
30,558 individuals with criminal convictions were released into
the public arena in the United States of America. This is a
2014 release which follows a 2013 release which was a
discussion of this subcommittee last year of 36,000 criminal
aliens released, at which time we asked why did you not tell us
about this and why do you not tell us now about the nature of
these people.
We got that some months later after we requested it. We
wrote into our bill report language requiring the ICE to give
us that information prior to release. And, by the way, this has
been a policy, it is my understanding talking to prior staff
people, that has been around and we have asked for for a long
time.
If you are going to release known criminal offenders into
the public arena and into the neighborhoods of American
citizens, we think that this committee, who pays the bills,
should get that information prior to release. And we treat
report language as a direction from this committee for the
performance of the agency we direct.
This is not hard stuff. You read law books. If it is there
in print, you know what it says. I know you are new to the
game, but let me just tell you a pet peeve I have about the
entire Homeland Security Department.
I no longer have any sympathy for the excuse that, the
acting director was taking care of that before I got here. Half
the people in DHS are acting. It is a fatal flaw of this
department.
I have addressed this with Jeh Johnson and he agrees it is
fatal flaw. And I will have to give him some credit about
putting it in the fast track to get people to be the actual
people responsible for these agencies in place.
I am no longer going to accept the excuse that the acting
director should have taken care of this. No. You take all the
faults of the guy that was running ICE before you got there. We
expect to know this information.
Now, you are a Texan. You know that the NAFTA corridor is
the outlet for the entire eastern part of the United States,
and it runs right through our back yard. You went to school in
Kingsville. It runs right through your back yard.
The Texas people can see that we just put 30,000 criminals
that they know nothing about on that highway headed north. Now,
in reality, they are not all on that highway, but there is a
good number of them that are. They run right through my
hometown of Round Rock. And that corridor affects every Texan
in the whole State.
When people hear criminals are released, they get fearful
and they ask us to answer for that because we are their
representatives. And if the subcommittee that provides the
funding does not have the information, then none of the rest of
the Members of Congress have any source to go to to get the
information.
This is a critical error and I have a whole series of
questions I want to discuss with you about that. Let me start
here. You just kind of make a little note of this and I will go
by sections.
Are there national security concerns or law enforcement
sensitivities that prevent you or the department from giving us
this information? Why does the press get it before Congress
gets it?
As directed in the fiscal year 2015 House report, do you
intend to publish the information on your website as directed
by Congress and when? Let's start with those three questions.
Ms. Saldana. Okay. And, sir, when I took the oath for this
office, it was never my intention and it will not be my pattern
to blame others for the situation at ICE. I am here voluntarily
of my own free will and I intend to answer for the agency.
With respect to the information and the reporting, my boss,
Jeh Johnson, as you well know, is very demanding with respect
to our cooperation and providing of information to our
committees and Members of Congress. He has a very clear
directive to all of us that we should do that.
I will tell you that right now we are working on the very
report. I think maybe late last month, I issued a memorandum
and directive that would give me greater comfort because I have
the same concern. I do not want criminals who are threats to
our communities out there either.
But what I have asked for is I want more supervision of the
decisions that are made with respect to criminal releases just
so that we can rest assured that we are going about our process
and following it faithfully and consistently across the
country.
And one of the things that I addressed in there was the
communication with state and local government, obviously with
the Congress, but with state and local governments in
particular before we release a person with a serious criminal
history into the community. We are working on that.
I mentioned the technology money. So I know little about
IT. I just do not have that kind of brain. I am a lawyer after
all. But I do understand old and outdated information systems.
And as you can well imagine, we are getting lots and lots of
inquiries from, I do not know, the 92 or so committees that
oversee our operations and many of them have different aspects.
What we are trying to do is to create a system that can be
more responsive and we are on the task of the local and state
communications of releases. We are already in the test pilot
stage trying to make sure that we can communicate with the
state systems which in turn will provide information to the
local jurisdictions. And I believe those early tests are coming
back very successful.
In terms of expanding it nationally, it is going to take a
few more months in order for us to get that in a way that we
can push a button, provide that information to the state, and
bring it back so that people have an idea of who is going into
their communities that have a record of criminal history.
The estimate I have seen is at least through probably the
end of this calendar year before we can get that up and going,
but I know we are talking to particularly state information
system which we have in Texas and obviously the other states
have so that we can make our systems compatible so they can
speak to each other.
I am sorry. I do not know the technical jargon, but I do
understand systems speaking to each other and that is what we
are trying to accomplish. That is a big deal to me. That is a
big deal to me. I know it is a big deal to you, sir, and to the
other members of this committee. And I am going to be on it. I
am going to be on it from here until we get to the end of
actually making this a working system.
With respect to reporting to this committee, the people
behind me have very clear direction that this is a top priority
is communicating with congressional staff and with Members of
Congress and we have pedaled as fast as we can. I have seen it
when there is a response and a request and I think we have made
very good progress.
I think we have cut down the numbers, the turnaround time
on inquiries. And that is another thing I have my finger on the
pulse of. So that is where we are and I commit to you that we
will continue to do that. And I will stay on it until we get
good----
Mr. Carter. Well, Ms. Saldana, when I heard what you were
asked when you commented about--in fact, I made a little note
at the top of my page that I expected to hear, and I did, about
data. It is wonderful the new tools we have, but as far as we
are concerned, you can sit down with a pencil and a big chief
tablet and write us out a list of the people that are being
released from prison, because you cannot release them without
being able to inform somebody to turn them loose.
Somebody knows this information that works for ICE and they
have been directed by us, prior to the release and prior to
anything going to the press, that we get that information. I do
not care whether this comes on a computer. You can write it on
a big chief tablet and send it over here, but I expect it to be
here.
I think it is only fair that those of us who have to take
the major amount of heat that will come down, and it is coming
down right now in our communities across the United States. I
was a judge for 20 years. We did not have all these fancy
things. We used IBM Selectric typewriters and carbon paper at
one time in the courthouse. It is still available.
There is no excuse to just ignore this because our computer
does not work as fast as it needs to or does not accumulate the
information. You have human beings that are accumulating that
information, and they can send it to us.
Ms. Saldana. Let me be clear, Chairman. We are not ignoring
it. We are on this.
Mr. Carter. We do not have it.
Ms. Saldana. These are files. These are files with a bunch
of paper in them. They are stored centrally in archives in a
central location. We have to get them. Somebody, as you said,
has to get with a pencil and a tablet and go through and
respond to the different facts that you are asking for. So we
are on that.
Mr. Carter. Are you telling me that these people are
released without them informing you or the top echelon? Is this
field work that is done by individuals and they are just making
these releases without any central authority at all?
Ms. Saldana. That is part of that same directive I told you
about earlier. They are making decisions locally, but I have
asked for additional levels of review and that is the field
office director. The person who runs the enforcement and
removal operation locally has been told you need to sign off,
you or an assistant needs to sign off on this, that extra level
of supervision.
I have created a five or six-person panel of senior
managers who will look at the release and make sure we are
exercising to the extent we are exercising our discretion, and
this is not a court ordered release, that they review it as
well.
So, no, it is not happening in a vacuum, but we will get
that information to you.
Mr. Carter. Any people in that chain of command you just
mentioned should be able to give us the information. If it
comes in piecemeal that in the Rio Grande Valley we are turning
loose 10,000 and in Laredo we are turning loose 20,000. I do
not care how it comes down.
Ms. Saldana. Okay.
Mr. Carter. But we need to know it and know what the
criminal activity they were convicted of. You know, I was a
district judge. We tried felony DWIs and, one of the things
that kept you up at night is that drunks kill people in cars.
And you get a guy that has a felony DWI in Texas, he has
had probably five misdemeanors before he ever gets to see you,
even though he could have less to get there, but most of them
have about five or more. When you put them out on some kind of
release, you think you know who is going to get blamed when a
little kid gets run over by this drunk? It is going to be the
judge that turned him loose.
Well, we get blamed on this situation because we are the
guys that pay the bills. I just cannot impress upon you that I
am furious about the fact that we ask politely, then we put it
in writing and say you will do this, and it is not being done.
That encourages us to not be very kind to the agency.
I told Jeh Johnson and the former director that I think ICE
is one of the best law enforcement agencies in the country, and
they do not get any credit for it. But you are not going to get
credit if this committee gets down on you, I can promise you.
This subcommittee pays the bills, and we are responsible for
it.
What mechanisms does ICE use to ensure sexual predators
released from ICE custody meet the legal requirements to
register with local officials? If these releases are being made
like you described, really my concern doubles.
Has ICE determined whether sexual predators in ICE custody
are properly registered before releasing them to the public? It
is a requirement of the law of every State in the country, and
there is a federal register for sexual predators that I happen
to have written the legislation to put that in place. All that
is required because it is the way we keep track of a lot of
people who do a lot of harm to a lot of little kids.
Does ICE have an official process to inform local officials
that sexual predators are being released? If not, should a
formal process be instituted immediately? Should the law be
amended to require this formal process? If you will not do it
with any other, we will do that.
Ms. Saldana. That is the system I mentioned earlier that I
believe we can get off and running with the state databases
before the end of the year. I am very hopeful for that. Again,
this takes tuning up not only our machines but having them link
and work with the state machines as well. We are very much on
that and that includes all these criminals that are released,
not just the sexual predators.
Mr. Carter. But the sexual predators, in all 50 states, we
have specific requirements for registration of sexual
predators. And we have a national register.
Ms. Saldana. Right.
Mr. Carter. And if we are releasing people that should be
on those registers, then do not. You know, a lot of people in
this modern day and age, when they get ready to buy a house,
they check that list to see who their neighbors are. This is
important.
You have stated that you are concerned that releasing
criminal aliens could cause public safety concerns. I believe
the law enforcement officials should be notified when criminal
aliens convicted of violent offenses are released in local
communities.
Does ICE inform local law enforcement about violent
criminal aliens released in their communities? Are there
effective methods for getting this information to local law
enforcement? And you are telling me there are none? Is what you
are saying?
Ms. Saldana. No. Well, there is not a system----
Mr. Carter. You are trying to put it in place?
Ms. Saldana. We are trying to institutionalize it, but let
me not fail to mention that obviously we are in the field. Our
people are talking to state and locals all the time, sheriffs
to local officials. There is an informal communication with
respect to that. I want to see it institutionalized and that is
what we are trying to do is actually set up a system where it
happens every time we release somebody.
Mr. Carter. Well, you are a lawyer. There should at least
be something in writing to notify local law enforcement. If the
informal is running into a sheriff's deputy at the cafe and
say, oh, by the way, we turned loose a violent criminal, a
sexual predator over in your neighborhood, that is not the kind
of notice that should be available. You should be at least
giving them something in writing informing them, as we do
between counties and states these days, every day.
Finally, one of the reasons for the release we hear is the
Zadvydas Davis decision. How many serious criminal offenders
were released under a ruling of Zadvydas v. Davis decision
which prohibits ICE from detaining criminal aliens longer than
six months unless there is a reasonable assurance the
individuals will be expatriated to his or her country of origin
in the foreseeable future? How many of the criminal aliens
released in 2013 to 2014 were released under Zadvydas? What
countries are they from and why would the countries not take
them back?
That is very important, because if we have countries that
are not honoring bringing their people back, then as we deal
with the State Department budget and we deal with Foreign
Affairs' budgets, we have methods whereby we can get their
attention that, you know, if you think that we are going to
continue to provide foreign aid to your country when you will
not take back these people that are a burden upon our society
and they are and have been. By being incarcerated, they are a
burden on our society.
Ms. Saldana. And we provided that information for 2013. We
are in the process of gathering that for 2014, the breakdown by
countries. I can tell you that China is pretty much at the top
of the list.
Mr. Carter. We know China is at the top of the list, but we
have other questions. You know, Honduras and Guatemala and San
Salvador, that has been a big issue. We do not know whether
they are taking them back or not.
Ms. Saldana. They are, sir.
Mr. Carter. Well, that is good. But that is exactly the
kind of information that should be a current event for this
committee, not a after-the-fact report. The current event is
important to the communities that we represent.
Are there steps DHS and the State Department can take with
any of the nations to get them to encourage repatriation? You
got ideas, we are willing to do them. We are in this together,
but you have to share information with us.
Ms. Saldana. It is gratifying to hear that. I mean, that is
what I want.
Mr. Carter. Jeh Johnson knows that and I want you to know
it. But you have no idea how mad people get when they hear
about these releases. The reality is most of these releases are
totally appropriate. They would fit into any criminal justice
system that we operate under in the country, but that is not
what it sounds like. It sounds like ICE turned them loose. That
is what it sounds like.
Ms. Saldana. And I appreciate the fact that you are, I
presume, out there telling them that information and that is
why this information obviously is important.
Mr. Carter. You have dealt with locals. The local chief of
police gets a call. Hey, ICE turned people loose. How many of
them are coming our way? How many are coming to our town? The
sheriff gets that call. Local law enforcement, immediately as
it hits the paper, they want to know where these people are.
I will tell you, Texans think 95 percent of them are in our
State, and it could be that a lot of them are.
Ms. Saldana. It will be a good number. I do not know about
95 percent.
Mr. Carter. Yeah.
Ms. Saldana. Between California and Texas.
Mr. Carter. This is a crisis as far as this committee is
concerned in my opinion.
I will recognize Ms. Roybal-Allard.
Ms. Roybal-Allard. Thank you, Mr. Chairman.
Director Saldana, in addition to last year's influx of
unaccompanied children, there was a rapid growth in the number
of families crossing the border, usually mothers with one or
more children. And ICE responded by establishing a significant
number of new family detention beds.
In fact, the number of family beds will have gone from
around 85 at this time last year to what is expected to be more
than 3,100 by June. For fiscal year 2016, the budget proposes
$345 million for 2,760 family detention beds and that is
$125,000 per bed including care.
In addition to the high cost, many of us are concerned
about the prospect of so many families, especially children,
living in detention settings. Since there are less expensive
and more humane options such as alternatives to detention which
have proven to be successful in having people show up for their
court hearings, it seems that the real issue to be addressed is
the speed at which someone is able to have their case
adjudicated before an immigration judge.
So given that the $345 million proposed for family
detention next year is almost three-fourths of the entire
budget proposed for the immigration courts at DOJ, would it not
make more sense to use that money to address the immigration
backlog at DOJ?
Ms. Saldana. Well, you noticed, I am sure, Representative,
that we also asked for an increase in alternative detention
programming because we have found some success in that. I think
we have had a request before, but this is about the highest we
have asked for. So we are definitely looking at that and think
that is particularly appropriate for families.
As you know, there is a District Court decision that talks
about the fact that we should not use deterrents as a factor in
making decisions with respect to the families. And so we have
gone back and scrubbed prior cases and every person, adult or
family member, the decisions are being made on the basis of the
due process you talked about earlier.
Is a bond more appropriate for this individual? Do we need
to detain them? If there is a bond that is appropriate, what is
the appropriate amount to make sure that they appear in future
court proceedings?
So we are very sensitive to that. I agree with you. I made
it a point in month two to go to the Dilly family facility and
see for myself, because I am one of these trust but verify
people, that that facility--I do not know if you have had an
opportunity to visit it, but that is one of the three and the
largest of the three family facilities--is in my opinion top
notch.
It provides child care, infant care, child care, education,
medical facilities. I think the response time is within 12
hours someone has had a medical examination to see what their
needs are and the like. And I am very much satisfied that that
is appropriate.
I plan to go to Karnes because I have heard a lot about
Karnes. And I want again to see for myself. I think I have
planned a trip for that actually tomorrow or the day after. I
am going somewhere.
Ms. Roybal-Allard. Okay. Director Saldana, I think that my
question has to do more with the issue of if we need these
family detention beds and one of the primary reasons is that
the length of time it takes for a case to be adjudicated and we
are spending $125,000 per bed, you know, plus care, if it would
make more sense then given that the cost of the detention is
three-fourths that of the entire budget proposed for DOJ, would
it not make more sense then to use that money to help expedite
the adjudication of these cases? That is my----
Ms. Saldana. I cannot urge you more that we need both in my
view. We need more judges because that is actually the
underlying problem. I think the chairman mentioned that
earlier. We have got to move the process faster. We do not
detain because we get a kick out of it or it is something that
is good to do. We detain based on any decision that a federal
judge makes, for example, with respect to releasing someone
pending proceedings. And that is flight risk and safety issues.
So, yes, it could be a simplistic answer, but my view is
that we need those additional attorneys that I talked about.
DOJ, I do not know why I am speaking for DOJ other than it was
my prior department. DOJ needs those additional judges that
they are going to be requesting, I am sure, for 2016 so that we
can get those decisions that the families are asserting, their
request for relief made sooner rather than later. That will
save us on costs.
Right now we do not know how many families are going to be
coming or whether we will have anything close to what happened
last time. We have got the beds ready. That was our promise is
to have those beds ready if that happens again this year. We
will see.
I think we are just coming upon that part of the season
that there tends to be more migration towards this area. So I
would strongly suggest that both things need to be done.
Ms. Roybal-Allard. Okay. Let me go back. You mentioned the
bonds and I understand that the District Court has imposed a
preliminary injunction on the ICE policy of detaining families
seeking asylum without consideration of releasing them on bond.
Can you explain what the rationale was behind this policy
given that the bond is an incentive for ensuring that families
appear at immigration hearings?
Ms. Saldana. If we are talking about the District Court,
Washington, D.C. Court, that is not the ruling of the court.
The ruling of the court, as I understand it, it has been a
little while since I have looked at it, is that we cannot take
deterrents which is the reason we specified for detaining
families as one of the factors we were looking at is deterring
other families from coming through was not appropriate and we
are prohibited from doing that.
Ms. Roybal-Allard. This was the U.S. District Court?
Ms. Saldana. Right, in D.C.
Ms. Roybal-Allard. Right.
Ms. Saldana. And so, no. Bonds are afforded to families
just like any other adult that we look at. If we make the
decision that we do not need to detain them, we give them that
opportunity for a bond, again, to ensure their presence in the
future.
Ms. Roybal-Allard. Currently that is true based on the
decision. But prior to that, it is my understanding that
families that were seeking asylum were not given the
consideration of bond. And that leads me to the next part of my
question that there has been some complaints that, well, ICE
has begun to offer bond to some families, that the amount is
often set too high for families to afford.
So what is ICE's process in setting bond amounts and is the
affordability of the bond taken into account on a case-by-case
basis?
Ms. Saldana. It is definitely a case-by-case analysis of
the factors. The minimum bond that can be set is $1,500. I
would think even $1,500 for some families would be impossible
to meet, but that is a bottom-line figure. My understanding is
that we look at, again, it is a decision that is made on a
case-by-case basis, what bond amount will ensure this person
actually shows up.
You know, I do not have an example right now I can give you
and I would not talk about individual cases anyway, but
generally that is the approach. It is not let's set the bond so
they cannot make bond. It is let's set the bond based on a
number that will ensure they will appear in the future.
Ms. Roybal-Allard. Is there an appeal process?
Ms. Saldana. Absolutely.
Ms. Roybal-Allard. There is.
Ms. Saldana. It is on our Web site lower right-hand corner.
And also everybody has the right to appeal to an immigration
judge on the amount of bond that is imposed on an individual.
And many, many do, one of the reasons we have a half a million
person backlog in the immigration courts.
Ms. Roybal-Allard. You mentioned Karnes and some detainees
at the Karnes family residential center engaged in a hunger
strike to protest their detention while seeking asylum.
Do you know if the participants have been offered release
on bond and, if so, has the bond amount been set at a level
that they could afford and they are using it?
Ms. Saldana. All of the persons who come into our custody
are given a bond determination very quickly. And, yes, all of
them are.
One thing I strongly suggest, Congresswoman, is if you are
relying on the New York Times story that came out this weekend,
it is chock full of errors, not the least of which is that we
have barbed wires in our family detention center. And there are
about 16 or 18 other facts that are wrong there.
I have asked when I meet with nongovernmental
organizations, I have asked if you have a complaint, there is a
process on our Web site, but more importantly please get the
facts, information that we can look at, the names of people,
the dates events apparently occurred or are alleged to occur,
because facts are more important to me than assertions that are
just thrown out there willy-nilly.
We will look at anything that looks wrong and, as I say, I
personally am going to Karnes tomorrow apparently or the next
day and we will look into that. But, no, every person has an
opportunity for a bond determination if we believe there is not
obviously a recommendation of detention. Even our detention
decisions are often taken on a look by the immigration courts
are overturned.
Ms. Roybal-Allard. Okay. Just one final thing. It is my
understanding that there have been allegations of mistreatment
of hunger strikers at Karnes in retaliation for their protest
and the Office of Civil Rights and Civil Liberties has begun an
investigation.
Is that correct and can you provide any information on the
status of that investigation?
Ms. Saldana. I can do that in another setting for you.
Ms. Roybal-Allard. Okay.
Ms. Saldana. And we can talk about that.
Ms. Roybal-Allard. Okay. Thank you, Mr. Chairman. You have
been very generous with the time.
Mr. Carter. Mr. Frelinghuysen.
Mr. Frelinghuysen. Madam Secretary, good morning. I have
read that tens of thousands of people have been killed in
Mexico which borders Texas. And some of those people who have
been killed are U.S. law enforcement and other citizens.
You have been a prosecutor, so you have worked for the
Department of Justice. You have this new role which we
congratulate you on.
I am told, and tell me if I am wrong, that some of those
who perpetuated these crimes, heads of cartels actually have
domiciles in the United States, property in the United States.
As a resident of Texas, I would assume you would know that. And
what are we doing about it if that is the case?
Ms. Saldana. Well, I do not know when you refer to these
crimes and tens of thousands of law enforcement----
Mr. Frelinghuysen. Crimes involving the killing of tens of
thousands of people in Mexico to include some Americans.
Ms. Saldana. There are awful and large and well-established
drug cartels who have connections not only with homes----
Mr. Frelinghuysen. What I am asking is I understand that
some of the people who are involved in leadership positions are
domiciled in the United States. What are you doing in your
agency to prosecute or bring some of these people's behaviors
to public account?
Ms. Saldana. That is a big part of what Homeland Security
Investigations----
Mr. Frelinghuysen. So what are you doing? What is the role
of your agency relative to such people?
Ms. Saldana. That is gather----
Mr. Frelinghuysen. They come here, do they not, so they
must pass through your portals; is that right?
Ms. Saldana. Through our portals?
Mr. Frelinghuysen. Yes, your agency.
Ms. Saldana. Yes. Well, Customs and Border Protection. You
know, we have two sister agencies----
Mr. Frelinghuysen. Yeah. Okay.
Ms. Saldana [continuing]. Who worries about the borders and
is apprehending the people. In fact, the people they apprehend
constitute about 60 percent of the people ICE deals with.
Mr. Frelinghuysen. So what is your role relative to your
agency relative to these people?
Ms. Saldana. It is investigations and that is gathering
intelligence, interviewing witnesses, finding evidence. In
fact, that is the heart of what we do.
Mr. Frelinghuysen. So could you assure the committee that
you are actually doing it and what would be the likely
consequence of some of the investigations that have already
occurred?
Ms. Saldana. Well, I think some statistics----
Mr. Frelinghuysen. Where do we stand? Is it accurate that
there are people here in our country that have perpetuated
these crimes that are domiciled here that own great ranches and
properties here and transit back and forth on a regular basis?
Ms. Saldana. That is the case.
Mr. Frelinghuysen. What are we doing about it?
Ms. Saldana. Many of them are the subjects of
investigations not only by HSI, Homeland Security
Investigations, our folks because that is the heart of what we
do is transnational criminal activity, but also by other
agencies including the FBI and DEA. All of us are out there.
Mr. Frelinghuysen. So what product has come from those
investigations?
Ms. Saldana. I think I mentioned some statistics earlier.
Mr. Frelinghuysen. But have some of these people, and there
are not that many of them who have cached their behavior in
Mexico through, you know, their cartel activities making a lot
of money which the----Chairman, thank you for yielding. What
are you doing about it?
Ms. Saldana. Well----
Mr. Frelinghuysen. I know there are some shared
responsibilities, but what specifically? Would you acknowledge
that this exists----
Ms. Saldana. Oh, yes. I know that----
Mr. Frelinghuysen [continuing]. A situation, a domicile
like this?
Ms. Saldana. Not from my three months at ICE----
Mr. Frelinghuysen. Yeah.
Ms. Saldana [continuing]. But as a United States Attorney.
Mr. Frelinghuysen. So what has been done? What has been
done on it?
Ms. Saldana. For those who we have not captured--and we
have captured quite a few, and I am talking about the United
States, HSI cannot take credit for all of them.
Mr. Frelinghuysen. Yeah.
Ms. Saldana. But we captured quite a few. They are way up
there on the list of people to----
Mr. Frelinghuysen. Yeah. But, I mean, they are right here.
They transit back and forth.
Ms. Saldana. They go back and forth, sir.
Mr. Frelinghuysen. So we----
Ms. Saldana. They go back and forth.
Mr. Frelinghuysen [continuing]. We have captured, you know,
a dozen or----
Ms. Saldana. The United States, I cannot speak for the
United States. I think I mentioned earlier that we have
actually secured 2.3 million pounds of narcotics.
Mr. Frelinghuysen. Which is like, you know, in the overall
trade, you know, that is maybe a significant sum, but in
reality, this trade involves a lot more than just that amount.
Ms. Saldana. A lot.
Mr. Frelinghuysen. And the dollars involved are huge.
Ms. Saldana. A lot more. And as I said, that is part of our
request for increasing our Homeland Security Investigations
folks is because we want to be out there looking at these cases
and finding these people and gathering the evidence.
Mr. Frelinghuysen. Respectfully, these people and their
domiciles and locations generally I am told by people I hang
out with here, you know, people on the panel, sometimes these
people are well-known and we do not do anything to prosecute
them.
Ms. Saldana. Well, we get one shot at the prosecution, sir,
and we need to have the evidence in order to prosecute. We
cannot just assume or come to a federal jury with information
that they are suspicions, beliefs. We got to line up the
evidence and those cases tend to take quite a bit of
investigation.
Mr. Frelinghuysen. Well, with the chairman's permission, I
would like to see what your win-loss record is either through
your operation or the Department of Justice as to whether we
have actually been successful in apprehending any of these
people who bought substantial land holdings here and who
educate their children here and do all sorts of things that----
Ms. Saldana. Right.
Mr. Frelinghuysen [continuing]. They undeservedly get, you
know.
Ms. Saldana. I no longer have any control over the
Department of Justice information, but I can certainly provide
you the number of drug cartels. I think someone mentioned it
earlier----
Mr. Frelinghuysen. Yeah.
Ms. Saldana [continuing]. That we have actually broken----
Mr. Frelinghuysen. Yeah.
Ms. Saldana. If your specific question is, how many of the
drug cartel investigations we have had that we have found
people who have domiciles in the United States, I think we can
probably dig down and do some findings.
Mr. Frelinghuysen. Yeah. Well, it is sort of disturbing, I
think, considering the number of people that have been killed
across the border.
Well, thank you, Mr. Chairman.
Thank you, Madam Secretary.
Mr. Carter. Mr. Cuellar.
Mr. Cuellar. Mr. Chairman, thank you so much.
First of all, I want to associate myself to the comments
that the chairman made at the beginning about notice. I think
we should not be working in silos. I think we ought to be
working together and certainly that type of information to the
local communities is going to be important. If somebody is
going to be released in my neighborhood, I would like to know
about it. So I do want to associate myself to the comments that
the chairman made.
Also, I guess Rodney left already, but I think he has a
point and we can talk about it at another setting. To the point
that the chairman of Defense was talking about a few minutes
ago, that is at another setting. I would like to follow up on
those points about some of those folks living in the U.S.
because they know that the violence is not in the U.S., but
they do their work and they come over. And we can talk about
that.
Ms. Saldana. Okay. Thank you.
Mr. Cuellar. I do want to also mention my brother who is a
border sheriff, and I think John knows him very well, has done
some work with your folks on those online predators.
Ms. Saldana. Yes.
Mr. Cuellar. And they have done a great job working
together, so I just want to say Janet Ziella and the other
folks here have just done a great job on the online predators.
So I do want to say that to start off with.
I do want to point out something that I have been talking
to Chairman John Culberson, in fact just yesterday, the numbers
that we got at the end of 2014, the Executive Office of
Immigration Review that overviews the Nation's immigration
courts, they said they had about 429,520 cases pending.
I think a lot of the issues that we are talking about, I
know it is not--usually we talk about adding more officers on
the border, but if we add some of those judges, I think it can
move the backlog and it would really save the taxpayers a lot
of money.
And I have talked to the chairman there that has the power
on the Commerce and Justice and hopefully he would look at this
very carefully on that because we do need to have more judges.
And hopefully they can be placed at the border also on that
because I give you the numbers.
Ms. Saldana. Strategically?
Mr. Cuellar. Yes, strategically is the key, strategically.
I do want to say I am familiar with the Karnes facility,
familiar with the Dilley. I have not gone to Dilley. All I ask
you and I know my office has been working with you all about
having some nuns that wanted to go. I know the bishops were
there, Sister Mary Welch. I know there is some media from the
Valley that deal with a lot of this issue last summer and were
working with you that they want to go in and work with you. We
would appreciate it so there can be some sort of transparency
on it.
I know it is private contractors, but you all do the
oversight.
Ms. Saldana. Oh, yes. And I met with religious leaders and
I believe she was there at the Executive Office Building last
week. And they had already been there and their view is that we
should not detain any families. That is what they would prefer
to see and that is clear. They have made that clear to the
secretary and to me and we will----
Mr. Cuellar. And we----
Ms. Saldana. We are aware of that.
Mr. Cuellar [continuing]. Respectfully disagree. I think we
need to have detentions. Otherwise, you have open borders and I
think there has to be detention, but you need to have the
judges also and other factors and make sure there is no abuse
and, you know, the issues, you know, that people are treated
with respect and you all need to look at.
But as you go and open up more of those, assume there is
more of those detentions, the only thing I would ask you is to
keep the taxpayers' dollars in mind. This happened before you
came in. I think I called you before on this issue. And I think
it is the intergovernmental service agreement. It went to one
company.
The amount of dollars, I do not know if the committee is
familiar with it, it was a lot of money. I will put it that
way. And if you look at cost, it just went too much without
some sort of competition. I talked to your folks beforehand. I
respectfully disagree, but there has to be at least some sort
of competition so the taxpayer gets the best dollars if you are
going to build a huge facility like that. But now that it has
been done, I just ask you to save the taxpayer some dollars as
you are going through this process.
Finally, you know, the only thing I do want to mentioned, I
guess it is more of a statement than a question, but the
communication with people that provide you funding is
important. And as the chairman, I do want to finish on this. If
we ask you for something, I would ask you to respond to that as
soon as you can. You are new and you got a wonderful background
and very proud of you as one of the----
Ms. Saldana. Javelinas.
Mr. Cuellar [continuing]. Javelinas, yeah, from Texas A&I.
But I just ask that you all just keep us informed because the
worst thing that we want to see is we see this in newspaper and
especially we do your budget, your appropriations, a little
courtesy would go a long way for having a good working
relationship.
So no questions, but any thoughts on what I have just----
Ms. Saldana. Of course, no. As I mentioned earlier, that is
very important to me and I have made very clear to all our
staff here at headquarters that that is very much at the top of
the list, if not--towards the top of the list, not at the very
top of the list, is our communication and our responsiveness,
get the information as quickly as possible, balanced, though,
Congressman, against getting accurate information. We want to
report accurately and that is why sometimes it takes a little
time. We check and double check.
Mr. Cuellar. I just want to say thank you. I think you are
going to be a good director and we look forward to working with
you.
Ms. Saldana. Thank you, sir.
Mr. Cuellar. Thank you.
Mr. Carter. Thank you, Mr. Cuellar.
We are going in the order that people appeared here, so Mr.
Harris?
Mr. Harris. Thank you very much, Mr. Chairman. And thank
you, Madam Assistant Secretary for coming and appearing for us.
You know, ICE is kind of in the middle of a lot of the
discussion about the President's new policies. And I had the
opportunity to look over your biography and I take it you were
the U.S. Attorney in Texas. And I guess your role at that time
really was to help enforce law, is that right? Not policy? Is
that----
Ms. Saldana. To enforce the law.
Mr. Harris. Law, not policy, but law. And this, and you
know there is a critical distinction that is playing out in,
you know, Judge Hammond's opinion about what is going on
because, you know, the distinction is whether or not the
President's policy as implemented effectively has replaced the
law, which the President cannot do. I mean, I hope we all
should agree the President cannot replace the law. And you
know, your testimony on page three says, and correctly, that
ICE is charged with enforcing and/or administering the nation's
immigration laws.
Now I am going to read you a very disturbing transcript of
the President's immigration town hall meeting from February
25th, where he addresses the role of ICE. He says, ``We are now
implementing a new prioritization,'' and he is obviously
referring to the prioritization that is actually laid out on
the ICE website with regards to I guess Mr. Johnson's
memoranda. He says there are going to be some jurisdictions and
there may be individual ICE officials or border patrol who are
not paying attention to our new directives. He does not say the
law, he says the new directives. But they are going to be
answerable to the head of the Department of Homeland Security
because he has been very clear about what our priorities should
be.
A few moments later, and I have been in the military so I
understand what he is talking about, the President says, look,
the bottom line is that if somebody is working for ICE and
there is a policy and they do not follow the policy, there are
going to consequences to it. He goes on to say in the U.S.
military when you get an order you are expected to follow it. I
understand. I was in the military, and I understand what
getting an order is. It does not mean that everybody follows
the order. If they do not, they have got a problem. And the
same thing is going to be true with respect to the policies
that we are putting forward.
Now I read this to be that the President has directed ICE
to follow policy instead of law. Now I have got to ask you, is
your interpretation different? I mean, the President, I
understood, I was in the military. I knew what the consequence
was if I did not follow an order. It was not pleasant. I cannot
even imagine a person working for ICE reading this, thinking I
have to follow the policy. I do not have discretion. There is
no prioritization going to go on within these priorities. My
discretion is removed. I have to follow that policy under the
threat of the Commander in Chief in the case of the military,
or the head of the executive branch in the case of DHS, of
saying if they do not they have got a problem.
Now Madam Secretary, I have got to ask you, is this the way
ICE runs? Is ICE's purpose is to enforce policy, not law?
Ms. Saldana. It is to enforce the law. And I will tell you
that in the Secretary's November 20th memo, he made it very
clear that these are priorities. That these, but that every
individual who comes before Immigration and Custom Enforcement
officials for whom we are making a decision, whether to
apprehend, arrest, set bonds, whatever, is to be determined on
a case by case basis. And even, and there is a sentence here
that I, you know, I, people miss this all the time and I am not
exactly sure why. There is a sentence very clearly, these are
the cards that our officers carry with them so they have a
handy dandy little reference to keep in mind what the
priorities are. Sir?
Mr. Culberson. They are carrying those today?
Ms. Saldana. Yes. Yes. They have been since, you know, we
started, completed the training in early January on these new
priorities, which is when the executive actions went into
effect. But it says here if you encounter a priority alien who
you believe is not a threat to national security, or to
security, or public safety, or believe that a non-priority
alien's removal would serve as an important federal interest,
you should discuss this matter with your supervisor.
I personally met with every chief, we call them our lawyers
out there, chief counsels in all of the districts by video,
along with the directors, the field office directors, and I
said these are priorities. I made very clear, this exercise of
judgment on a case by case analysis, even if this person does
not meet a priority, and you believe or have reason to believe
that you, that that person is still, presents a public safety
threat, it is your responsibility. And this is what we are here
for, is to ensure that that person is taken into account and
then you meet with your supervisor to discuss it.
It also says the opposite, and that is if they, if they are
on here but you do not consider them a public safety threat, it
is a 72-year-old man who committed a crime in his teens and is
now before you and has never had another criminal record before
that but the felony falls within the priorities, you have the
ability to exercise your discretion on it.
You know there is a case in the Fifth Circuit that I
followed closely myself, which is the Crane case, that
challenged the ability of this kind of discretion, and the
court at least at the Fifth Circuit level has gone with us. I
am sure, that is still in litigation, we will see how it turns
out. But again, the reason that this becomes, is not replacing
the law is because this essentially memorializes what I did
every day as an Assistant United States Attorney and as the
U.S. Attorney. And that is exercise my discretion because I
could not enforce with our skimpy little budget 3,000-plus laws
that----
Mr. Harris. Sure. No, and I appreciate it. I appreciate
that. And I think that would be the right thing. The Crane
case, I take it, is the one that was ruled on just a week ago,
dismissed the lawsuit?
Ms. Saldana. Yes.
Mr. Harris. That was over standing, though. That was not
over an issue of, that was not over an issue of whether or not,
am I correct? I mean----
Ms. Saldana. I think you are, precisely, I think you----
Mr. Harris. Right, so----
Ms. Saldana [continuing]. Are more precise than I was.
But----
Mr. Harris. Correct. So legal standing really, I mean, we
know that has nothing to do with the basis of whether or not
the President's action was legal.
Ms. Saldana. But----
Mr. Harris. These plaintiffs did not have the ability to
have their case heard in court because of legal standing. So
let us just dispense with this supporting the President's
policy. So did the President get it wrong? Because I am going
to read it again. I am going to read it again. This is the
President of the United States. This is the person in charge of
the executive branch said if an individual ICE official is not
paying, and I am going to say, is not paying attention to our
new directives they are going to be answerable to the head of
DHS because he has been very clear about what our priorities
should be.
Ms. Saldana. The November 20th memo, and he was.
Mr. Harris. Right, a memo. So the President was not saying
that we are going to ask ICE to enforce the law. It is to
enforce the November 24th memo, is that right? Basically----
Ms. Saldana. Well, Congressman, you know, the law can be,
some of them can be very lengthy. I mean, I know this
personally. Reading them can give you a headache. But the law
is just that. It is not intended to cover how you go about your
business. I had as the United States Attorney, I served on the
Attorney General's advisory committee. We had to help United
States Attorneys flesh out what the law was through policies
from the Attorney General. You flesh out what the law is and
you try to abide by congressional----
Mr. Harris. Sure. Madam Assistant Secretary, and I am just
going to, because I have overspent my time here. But I am just
going to ask you about, I mean, that point. The fact of the
matter is the level three priority and, and this is from your,
I mean, I am, this is from your testimony. The third level of
priority are people who have actually had a final order of
removal against them. So someone made a legal finding that
these individuals are not here legally. Am I correct? That they
have violated the law and they are not here legally?
Ms. Saldana. That is initial, but all of these things can
be appealed. But yes. That is the initial finding.
Mr. Harris. Okay. So let us be honest. What the President
has said, we have individuals with legal findings against them,
have clearly been found to violate the law, and the new
directive says we are going to, instead of enforcing that law
which would result in their deportation we are going to follow
a directive or a policy? That, I mean look, I am a doctor, I am
not a lawyer. But to someone observing this says we have
already made a legal finding, and the new memorandum says we
are not going to follow the law, we are going to follow a
policy or a directive. And I have to tell you, as a member of
the legislative branch, I take that very seriously when the
executive branch says we have let the system run, we have made
a legal finding, and now we are going to disregard the law. We
are going to follow an executive branch policy or directive.
And I will tell you, that was a rhetorical question. You do not
have to answer that. Thank you very much, Assistant Secretary.
And I yield back.
Mr. Carter. Ms. Kaptur.
Ms. Kaptur. Thank you, Mr. Chairman. I apologize. I had
another hearing. I could not be here earlier. Secretary
Saldana, thank you so very much for being with us today. You
have a very hard job.
I come from the northern border with Canada in Northern
Ohio. And I wanted to ask your help in this issue of human
smuggling, particularly labor smuggling. I have spent a lot of
my career engaged in this issue, largely from countries, labor
from countries south of our, the southwestern part of our
country. And I am appalled. As I read your testimony and some
of the notes I have been given, your offices are dedicated to
identifying and apprehending priority aliens. My concern are
the contractors who bring them here.
Ms. Saldana. The smugglers.
Ms. Kaptur. The smugglers, on both sides of the border. And
I would cordially invite you to my home community of Toledo,
Ohio where we have an organization called the Farm Labor
Organizing Committee that was training a young man, 27 years
old, named Santiago Cruz, to go to the fields in Mexico and to
tell the farm workers that they did not have to come under
bondage. That they could come with a labor contract. That we
would receive them, even their families, we would educate their
children through Head Start while they were here. He was
murdered. He was murdered in Monterey. There has not been
prosecution at a level that there should be in that case, and
some of his murderers have never been found.
I went down to Monterrey. I have been in Congress a long
time. I went down to Monterrey, met with our counsel down
there. And I said, look, just in the area of agriculture, Ohio
receives at least 20,000 people a year who pick pickles and
they pick tomatoes, they do very hard work, pick strawberries.
I would not want to do that job. They should be coming, we
should have the same people every year if they want to come. We
should know who they are. And I want you to make Ohio a pilot.
We want to treat people like human beings, we respect their
work, and we respect them. Our government would not do it. And
this was not under the Obama administration, by the way. But I
have been looking for someone, someplace, in our government who
really cares about people, and people who work hard. And they
are being exploited.
I was down in the tobacco fields of North Carolina last
year. I met a man from Guatemala who had his finger cut off, no
health insurance. He owes $8,000 to one of these corrupt
coyotes who brought him across the border. And I just cannot
believe our country allows this to go on.
So I would like to cordially invite you or someone you send
to my district to meet with people who are trying to help, and
including me, and we have been thwarted at every turn. And I
just think that those that exploit this labor have more power
than we imagine, and I want to go after them. And I want a work
force that is treated fairly. We do not want to bring people in
as unidentifiable aliens and all the rest of this. We want to
know who they are, we want to treat them right, we want them to
have a contract. And we want the same people every year if we
can get them. Most of our farmers would like to have the same
people. They do not want this churning that is going on in the
labor force.
I do not know if you can help me but I am making a plea to
you. I would really appreciate the opportunity to have people
from our region explain what has been going on at our border
with people who travel very far and have rather grim prospects
because of the manner in which they have been treated. Do you
have any ability to deal with that labor smuggling issue?
Ms. Saldana. Of course. Of course. That is, and again, our
expertise is international. And when you cross the border,
either the northern border or the southern border, that is
where we come in and where we are pretty much the experts on
that transnational criminal activity.
You may have read about, or if not I will certainly provide
you more information, on Operation Coyote, which is our effort
to bring to justice the smugglers and this is where our
international team comes in so essentially. And that is they
give us information from the local countries where the
smugglers are and are inducing and seducing people to come up
to this, to the country--
Ms. Kaptur. They have to be among the cruelest people
alive.
Ms. Saldana [continuing]. On false pretenses. And you
remind me of a case I prosecuted involving a Korean smuggling
ring. Can you imagine thousands of miles, of carrying these
women to the United States, and actually telling them they
could get a job and an education here? And they brought them in
through Canada, actually. And had them, ended up working in a
bar to serve the pleasure of Korean businessmen when they were
in the city of Dallas on business. And one woman, the one who
actually revealed the scheme, jumped out of the second story
home of the smuggler, of the, and this is a large operation.
Obviously there is a person here but there is a person in Korea
also.
And again, as I say, this is part of the reason we are
requesting this additional money with respect to the smuggling
activity, the twenty, I think it is $26 million. Because we
have had good success on breaking the backs of some of these
smuggling organizations. And that is where our attaches are
really helpful in making our connections with intelligence and
other information in these countries.
So yes. I would actually personally, I do not want to send
anybody, I would actually like to go to Toledo and have some
further conversation.
Ms. Kaptur. We would warmly invite you. This has bothered
me for so many years. And I was so angry with our government
under former administrations. And we have a region that tries
to treat workers well. And we need your help. So I appreciate
that. I do not want to run you all over the world. But, you
know, when you are flying over the Great Lakes region, we will
welcome you.
Ms. Saldana. We will make a stop.
Ms. Kaptur. And thank you. Thank you very, very, very, very
much. And I will give you the name of a group your staff can
look through. It is called the Farm Labor Organizing Committee,
FLOC. I think its director is in the heritage of Cesar Chavez.
He is a great man. He has given his whole life to this issue.
And it should not be so hard. It just should not be so hard.
And these criminals that traffic in human beings in the 21st
Century, it is beyond belief.
Ms. Saldana. This Korean person who was the local smuggler
was an LPR, a legal permanent resident. And not only did we get
him ten years in prison, but we denaturalized him and sent him
back to Korea because of his involvement in this international
smuggling activity----
Ms. Kaptur. Well that----
Ms. Saldana [continuing]. With these young Korean women.
Ms. Kaptur. You will have the support from this member on a
coyote program.
Ms. Saldana. Thank you.
Ms. Kaptur. With the finest investigators and the finest
security people you can put to work. And again, we invite you
to, I would like you to hear directly from those that have been
involved in this. And that young man, his mother, I had to go
down to Mexico and be a part of a group to help her endure his
loss. It was, and to think that, you know, he was trying to
treat people fairly and well, and he was so young. And the
manner in which he was murdered and so forth was so brutal.
I just, I just also want to say that on the ICE front, and
I am sure my time is up. But in my region we are not like Mr.
Cuellar's district. You know, we are up north, we are on the
Great Lakes. And some of the ICE personnel that come up there
are rather inappropriate in the way that they follow people
around in our region in cities like Lorain, West Cleveland. I
do not know exactly what can be done about that. But it seems
to me that you have to be community sensitive also and we have
local attorneys willing to work with ICE at the local level to
try to support in the DACA and DAPA programs individuals who
many times are stopped and they, they did not do anything
wrong. They have green cards, they are here legally, and yet
they are followed. I do not know why all that happens. I think
it is just because it is such a difficult job. But it seems to
me that there could be a more appropriate community approach in
some of these places. And we will probably, if you are kind
enough to come to our region we will want to discuss that a
little bit with some of the victims of rather ham-handed
approaches to following individuals who should not be followed.
Ms. Saldana. Well I will tell you that it would be helpful
to get more information from you with respect to that. And I am
happy to meet with nongovernmental organizations, too, to talk
to them about----
Ms. Kaptur. Thank you.
Ms. Saldana [continuing]. Our new approach.
Ms. Kaptur. Thank you very much. And thank you, Mr.
Chairman, you have been generous with the gavel.
Mr. Carter. Thank you, Ms. Kaptur. Mr. Young is next but he
is willing to, because Mr. Stewart has a real crisis, yield to
Mr. Stewart. Mr. Stewart.
Mr. Stewart. Well, thank you Mr. Chairman. And I would not
call it a crisis but I do have another appointment. So thank
you, Mr. Young. Thank you for ceding your time. And I will be
brief. Madam Director, welcome. You have got kind of a tough
job. It is not one that I envy.
I want to tell you a little bit about my background because
it brings me to the topic, which I have a real emotional
attachment to, and that is before I came to Congress I was a
writer. One of the books I wrote was with Elizabeth Smart
telling her story of being captured and held. And that got me
involved with another community in the West who, and primarily
in Utah, but that is not the only place. But these guys will,
they are former Special Forces soldiers and other law
enforcement officials that pose as businessmen. They go to
foreign lands and involve, pretend to be involved in the
trafficking of children and they rescue these children. Dozens
at a time, last month something like 50 of them, young, young
girls, and in some cases boys, who are being sold into sex
trafficking.
The crisis that we faced last summer, to use a word that we
use often but I think it certainly applies here, are these
unaccompanied children that were crossing the border in numbers
we had just simply never seen before. And I would ask you, I
think I know the answer but I am going to say this and you can
say yes, that is about right. In 2012 the number of
unaccompanied children was 27,000 or something like that; 2013,
44,000; last summer, 68,000. Now I am not a mathematician, but
just doing it off the back of my head that is about a 60
percent increase every year. And I have two concerns and then I
will get to my question.
The first concern is I believe the administration's
policies fairly or unfairly create the impression that if these
young children can get to the border, not even cross the
border, in some cases surrender at the border, that they are
going to be allowed to stay here. And because we have not done
a great job of communicating and also having policies that I
think actually foster that misconception we are endangering the
lives of tens of thousands of young children.
But the primary thing I want to ask you is this. With this
human trafficking, do you know what percentage of these
unaccompanied children were involved in say drug cartels, were
involved or associated in some way, were being exploited, or
were sold or traded or given into some of these human
trafficking or these individuals who deal with the sex trade of
unaccompanied children?
Ms. Saldana. As you know, Congressman, the children from
Central America who comprise a large part of that group from
last year are treated differently than the typical undocumented
worker or illegal immigrant.
Mr. Stewart. You mean the OTMs? Is that what you are
talking about?
Ms. Saldana. Yes.
Mr. Stewart. Okay.
Ms. Saldana. And that was a large part of that. And that
is, again, a more expensive proposition when you are dealing
with someone from countries that are not on the border. They,
we, obviously we get as much information as we can. They are
treated completely different. We cannot expedite their removal.
We have to, we turn them over----
Mr. Stewart. Madam Director, for, because both of us have
just a little time, I really have a fairly simple question. Do
you know what percentage of them were involved with this trade
or forced into this trade?
Ms. Saldana. I cannot tell you the percentage or an exact
number right now, but I do know we glean that kind of
information.
Mr. Stewart. Do you have an idea? Could you give us your
best estimate?
Ms. Saldana. I do not want to speculate, sir. I really, I
really would rather try to find that information for you than
to just give you a number off the top of my head.
Mr. Stewart. Okay, do you think it is a large percentage?
Ms. Saldana. It will be a, I think it will be significant.
Mr. Stewart. Yes.
Ms. Saldana. I cannot say that, I do not want to quibble on
words. But----
Mr. Stewart. Okay. But it is not a meaningless, I mean,
heavens, if it is a few it is a lot.
Ms. Saldana. Yes, of course.
Mr. Stewart. And this is more than that. This is a, and I
am wondering what steps you are taking to try and, to try and,
A, you know, educate the American people what is happening
there, and B, what can we do to protect these children? Because
either way we are putting them in harm's way.
Ms. Saldana. Well one of the things I have personally done
in my three-plus months is I have been to Central America. I
did a round there and to Mexico City to meet with my
counterparts, the immigration officials there to make very
clear the President's view, the Secretary's view, and my own
view that this is, this is not a good thing. And that we would
like to work with them to come up with some programs to help
those governments deal with their children and keep them there.
The First Lady of Guatemala, for example, is the person who
deals mostly with the children, the child problem, of those
people that are coming to the north and she has programs in
place. And we met with the directors of those programs to
educate parents there in their countries, because this is what
you want first. You do not want them making that trek.
Mr. Stewart. Yes.
Ms. Saldana. And to, and to let them know it is, not only
is it dangerous but that we can provide you some fundamental
services.
Mr. Stewart. Yes.
Ms. Saldana. So we are working with all three governments,
Ecuador, Guatemala, and Honduras, and trying our best to----
Mr. Stewart. Well let me conclude with this. We are having
a nearly 60 percent increase going on three years, and probably
four years now. And I know this was not under your watch but it
is under this administration's watch, and we have to do better
than that. We cannot be in July and August, like we were last
year, completely unprepared and I think encouraging an activity
that is very destructive for these younger people.
Having said that, thank you for what you do. I hope you
understand why this is such a concern to the Americans. Mr.
Young, again, thank you for giving me your time. Mr. Chairman,
I yield back.
Mr. Carter. Mr. Young.
Mr. Young. Thank you, Mr. Chairman. Director Saldana, I
want to reread that quote from the President on February 25th
at Florida International University, when he said there may be
individual ICE officials or border patrol who are not paying
attention to our new directives. But they are going to be
answerable to the head of the Department of Homeland Security
because he has been very clear about what our priorities should
be. If somebody is working for ICE and there is a policy and
they do not follow the policy, there are going to be
consequences for it. What did you think about when he, the
President said that, when you learned about it? Did that
concern you at all? Did you have any, any red flags go up at
all?
Ms. Saldana. I am trying to be honest with you, sir. No. I
imagine you have staff that you expect to comply with your
directives and your policies. I imagine the typical employer in
the United States has employees who they expect to follow their
directives, their policies. I have got an employee manual this
big that says if you violate one of our employment policies,
here is the range of punishment you can have. So no, it did not
strike me as unusual.
Mr. Young. Well if I had policies or directives that were
contrary to the law, I would understand if they did not want to
follow them. And so I would expect them to follow the law
first. Don't you----
Ms. Saldana. And that is where you and I probably have a
fundamental disagreement.
Mr. Young. Oh, okay. Don't you see how some may in the DHS
personnel see, perceive that as perhaps a threat? Including
you, maybe, who simply want to obey the law?
Ms. Saldana. You know, a threat, I am here of my own
volition and will. I am just trying to help the United States
of America and our country on issues that are so divisive. It
does not worry me if somebody wants to fire me because I am not
doing what they want to do. I have a great state to return to
and a home there. So no, I am not threatened by it and I trust
our employees are not. They, I have spoken to many of them. I
plan to visit as many of our offices as I can to explain that
to them.
Mr. Young. Well, I mean, I think that the public record
contradicts that with some of your employees are feeling like
they are being retaliated against or threatened, lawsuits
perhaps. I want to just, I want to quote the President of the
National ICE Council Chris Crane, saying that the agency
leadership is, ``punishing law enforcement officers who are
just trying to uphold the U.S. law and willing to take away
their retirement, their job, their ability to support their
families in favor of someone who is here illegally and
violating our laws, either taking a disciplinary action or
threatening disciplinary action.''
Ms. Saldana. And I have met with Mr. Crane----
Mr. Young. That is serious.
Ms. Saldana. Yes, and I have met with Mr. Crane. We
actually have had positive meetings because we are both working
together to try to get our ERO people on a parity level with
respect to their employment, immigration enforcement agents and
deportation officers. And we accomplished, we hope we have
accomplished that.
But I am not going to get in the middle of pending
litigation. I cannot comment further on that. But I want to
work with Mr. Crane and with our labor partners to try to make
things better for employees. In the end, in the end the most
important thing in accomplishing our mission is our employees,
and that they feel like they have an ability to do their jobs
and for me to provide the tools they need for that. And I am
working very hard to do that.
Mr. Young. Well you mentioned the labor leaders as well.
And as you know, Chris Cabrera also has concerns as well with
Local 3307. And I am not going to get into his, what he has
been saying. But there are concerns out there, as you know.
But, you know, this also gets, this is serious stuff. And
this also gets down to I think the morale of the whole
department. And we have had these discussions with Secretary
Johnson as well. There seems to be just a real low, lowest in
the administration, I think, is the, at the Department of
Homeland Security. What are you doing to try to increase that?
And what are you doing to try to stand up and protect your
personnel who may feel intimidated here at times with policies
and directives when they believe they themselves are just
trying to uphold the Constitution and obey the law? How do you
support them? How do you help increase the morale there in this
very, very important agency? And you have a very important job
and I respect you immensely. I want what is best for this
country as well and for your employees.
Ms. Saldana. Thank you, sir. I have actually done a lot in
the three months that I have been there. I started with, as I
think I told you, the chiefs, but I also am trying to get to as
many offices as I can to meet with people and listen, just
listen, make notes, and come back and see what I can do about
concerns and complaints there are.
I have launched a professional development program where I
want to make sure that our people, as I said earlier, are given
the tools they need, the resources that you all have a lot to
do with in order to do their jobs. And so importantly that
information technology that they need to communicate with each
other and with local law enforcement.
We have a group, and I am exploring further the possibility
of having a group of field office directors, supervisors, and
other folks to come in regularly to visit with me so I can stay
in touch with the field and not get surrounded by this, what do
you call it? What do you call Washington, D.C.? How can I be
nice about this?
Mr. Young. The island surrounded by reality?
Ms. Saldana. Exactly. I need a touch of reality because
you, you can get knee deep in things that are not as important
as serving the American public. And so I am doing all of those
things, not for my own personal glory but because I think this,
this agency needs a lot of institutional practices, best
practices, that will stay even after I am long gone.
Mr. Young. Well I appreciate you being here today. And I
also appreciate your leadership. And I would just ask that
those folks within your agency, when they believe that they are
doing the right thing under the law and under the Constitution,
and they feel intimidated, that you stand up for them. And I
appreciate you being here today. Thank you, Mr. Chairman.
Mr. Carter. Thank you. Ms. Roybal-Allard.
Ms. Roybal-Allard. Sir, if I could just have----
Mr. Carter. She would like to be recognized for just a
moment.
Ms. Roybal-Allard. Thank you. Director, I just want to
clarify a point on your earlier response, on the relationship
between the law and the President's policies. The fundamental
disagreement to which you referred was whether the policies are
consistent with the law. And your position is that the
President's policies are entirely consistent with the law? Is
that correct?
Ms. Saldana. Oh, yes.
Ms. Roybal-Allard. Yes? Okay.
Ms. Saldana. Oh, yes. Of course. And again, I am not saying
this because I am a constitutional expert or anything like
that. But I do know that our, the Department of Justice scoured
the requests of, and the information submitted to them for a
General Counsel opinion on whether or not things they were
doing or proposing to do were within the confines of the law.
And they got a yay on some and they got a nay on others. And
that the President proceeded along with the Secretary to
proceed with the ones that were within the confines of the law.
I, that is all I know, is enforcing law. That is all I know.
Ms. Roybal-Allard. Okay, thank you, Mr. Chairman. Mr.
Culberson, thank you.
Mr. Carter. Mr. Culberson.
Mr. Culberson. Thank you. Madam Secretary, thank you very
much for being here today. Your budget request this year is for
$6.282 billion in discretionary funding and mandatory fee
authority that, as you say in your testimony, is in line with
the fiscal year 2015 enacted budget. How do you use for example
the discretionary portion of the funding that you receive from
the Congress?
Ms. Saldana. How?
Mr. Culberson. Yes, ma'am. For what different purposes
within the agency's operations do you use the discretionary
funding versus fees? Starting with the discretionary?
Ms. Saldana. Our----
Mr. Culberson. What type--ma'am?
Ms. Saldana. I am sorry, go ahead. Our core mission, and
that is, and I think I mentioned them a little earlier, the
enforcement part, the investigations, the international folks
that we have, the management and administration people who keep
us all in proper facilities, keep the phones working, and keep
us supplied with things.
Mr. Culberson. Right. What I was driving at is you use the
discretionary portion of the funding that you receive then
primarily for administrative functions in the----
Ms. Saldana. No, to accomplish our core mission.
Mr. Culberson. To accomplish your core mission. Are they
distributed----
Ms. Saldana. Supported by our administrative function.
Mr. Culberson. And what, what amount of the $6.282 billion
is discretionary versus mandatory fee?
Ms. Saldana. From what I see here it is six-point,
5.959637.
Mr. Culberson. Wait, wait, wait----
Ms. Saldana. $5,000,959,637.
Mr. Culberson. $5.959 billion is, where is that money
coming from?
Ms. Saldana. This is for 2016. This is the discretionary.
Mr. Culberson. Oh, $5.959 billion is discretionary money
that does not come from fees?
Ms. Saldana. Right. The fees part of it is included in the
$322,000 which comprises $6.28 billion together.
Mr. Culberson. Okay. So the fees are----
Ms. Saldana. Are very small.
Mr. Culberson. What, so the fees are only a very small
part. So your discretionary funding from, that of course comes
from Congress----
Ms. Saldana. It is how we run the agency.
Mr. Culberson [continuing]. Is the, is the overwhelming
majority of your funding?
Ms. Saldana. Right. Our sister agency, Citizenship and
Immigration Services, has a large part of its funding from
fees.
Mr. Culberson. Right.
Ms. Saldana. But we do not.
Mr. Culberson. Right. So what, what of your, so your
portion of discretionary funding you said is $5.959 billion,
and then the remainder is from fees. And the, and the, your
sister agency draws what portion of their funding from fees?
Ms. Saldana. Sir, I am sorry. I am having a hard enough
time with my own budget.
Mr. Culberson. Sure.
Ms. Saldana. I have not kept up with CIS.
Mr. Culberson. Now the funding, the card that you all have
there, that is, I would be very interested to see that.
Ms. Saldana. Would you like it?
Mr. Culberson. May I? Yes. Would you get that for me? Now
that is, your officers are using that today in the field to
help give them guidance on the----
Ms. Saldana. Yes, sir. It is essentially the November 20th
memorandum of the Secretary but reduced to a simple card.
Mr. Culberson. I see. So their, I have seen these before
and, you know, coming from Texas we work very closely together
with all our colleagues that have, live up and down the, and
represent folks up and down the river, and we have seen
something like this before. So this is to help your agents
enforce the November 20th directives?
Ms. Saldana. Right. In addition to all the training that we
have done and continue to do that was accomplished back in
January before we kicked off the program.
Mr. Culberson. Right. So they are, you are using this
today? Your officers in the field are using this today?
Ms. Saldana. Yes.
Mr. Culberson. And, and putting it into effect today?
Ms. Saldana. Right. And I have charged the field office
directors and all of the supervisors, you know, to be available
for questions. Obviously our legal, our OPLA people, our Office
of the Legal Advisors, are also available for questions.
Mr. Culberson. Right, proceeding to enforce, to continue to
enforce the November 20th----
Ms. Saldana. Right, that is just a shorthand way to carry
it in your pocket.
Mr. Culberson. Yes, no, I understand. What concerns me,
though, is that you are under an injunction. You cannot enforce
or follow through on the November 20th memorandum because the
district judge in South Texas, Judge Hanen, and it is before
the Fifth Circuit on Friday, you are under a temporary
injunction not to enforce the November 20th memorandum. But you
just told me your agents are in the field using this card to
enforce the November 20th memorandum.
Ms. Saldana. I think there may be some confusion. That
decision, Judge Hanen's decision? Is that what you are
referring to? Is, relates to extended DACA, the children, the
admissibility of children, and extended DAPA. That is a program
administered by Citizenship and Immigration Services, our
sister agency. We are very, our enforcement priorities were not
one bit affected by that decision. It was simply whether or not
the administration could proceed with extending DACA and
initiating the parents part of the it, the DAPA program.
Mr. Culberson. Mm-hmm.
Ms. Saldana. And that is CIS.
Mr. Culberson. Right. The only----
Ms. Saldana. Now we had----
Mr. Culberson. The home, your home, the homepage for
Homeland Security says, it says it does not affect the
December, excuse me, the 2012 DACA initiative, but it is, it
enjoins the November 20th memorandum.
Ms. Saldana. There were like eight or nine memorandums that
day.
Mr. Culberson. They were enjoined, right.
Ms. Saldana. No. No, no, sir. No. Just the one that dealt
with establishing a DAPA program with respect to the lawful
presence of parents----
Mr. Culberson. Mm-hmm.
Ms. Saldana [continuing]. Of undocumented immigrants, and
the extension of the DACA program which initially was just
limited to a certain number of people and it was proposed to be
expanded.
Mr. Culberson. Mm-hmm.
Ms. Saldana. That specifically is what was enjoined. The
way ICE, my agency, was affected was very, was very little with
respect to that. Because I think we had posters in our field
offices that said you may be able to qualify for this--
Mr. Culberson. Mm-hmm.
Ms. Saldana. [continuing]. You, here is information on
where to go at CIS. But we are enforcement.
Mr. Culberson. Yes, so you----
Ms. Saldana. We do not do administration of benefits like
CIS does.
Mr. Culberson. Mm-hmm.
Ms. Saldana. Which is what is at the heart of the, Judge
Hanen's decision.
Mr. Culberson. So you are not bound in any way by Judge
Hanen's decision in your opinion?
Ms. Saldana. We are with respect to those two or three
areas where we had posters up. We took them down, because we
did not want to be seen to be promoting the program with
respect, while the injunction is still being litigated. And it
is CIS that carries the brunt of that decision.
And the Secretary has clearly, has made very clear, and it
is on the website, that the enforcement aspect and the
priorities, and if you read the opinion you will find, are not
affected. We proceed with those.
Mr. Culberson. Mm-hmm. What, in the budget request you have
submitted to us is necessary obviously for you to fulfill your
mission to enforce the law. Have you, but you were saying
earlier that you felt you did not have enough funds to, to
enforce the law. You have to use your discretion, obviously, as
a prosecutor. Is the request then insufficient? I mean, I just
want, trying to get a handle on if you are prioritizing your
resources because you do not have enough, does the fiscal year
2016 budget request not----
Ms. Saldana. I am very, very pleased with it, sir. I would
not, it has some increases but it also reflects some
efficiencies that we have been able to accomplish with some
hard work. And I cannot take credit for that. It is the people
behind me who should.
Mr. Culberson. So your request would enable you to enforce
the law fully?
Ms. Saldana. Absolutely, sir.
Mr. Culberson. Okay. One final question. What is ambiguous,
if I do not see that it is ambiguous, the requirement that you
use not less than 34,000 detention beds? That is statutory in
the Homeland Security bill, mandatory--
Ms. Saldana. Yes, I have the language right here.
Mr. Culberson. Right.
Ms. Saldana. It says provided further that funding made
available under this heading shall maintain a level of not less
than--
Mr. Culberson. Is there anything about that that is
discretionary or optional?
Ms. Saldana. No. We have maintained that capacity.
Mr. Culberson. Right. But you are not using it. Right now
you are at about 26,000.
Ms. Saldana. Well that is dictated, sir, by the flow of
immigrants. As you know, Customs and Border----
Mr. Culberson. There is no shortage of folks coming over
the border illegally.
Ms. Saldana. Right. And we need to apprehend them and find
them. But what I am saying is, as you know at the border
apprehensions are down, the first line of defense is CBP, is
down about 24 percent. So that is going to obviously affect,
since we get about 60 percent of our beds from, or our
apprehensions from CBP, that is going to affect that. Plus we
are, it is seasonal. This is a seasonal flow. And we are just
getting to the warmer months where there is, the migration
patterns in the past have shown us there might be an increase
in migration.
Mr. Culberson. So is it not, is it optional for you to use
those 34,000 beds in your opinion?
Ms. Saldana. Optional? It is not optional to have them
available.
Mr. Culberson. But it is optional whether or not you use
them?
Ms. Saldana. It is not optional, sir. We have those, and we
will use them to the extent we make decisions that someone
needs to be detained. If you are asking me whether it is more
important to fill a bed than it is to do it right, I have to go
with doing it right. And that is----
Mr. Culberson. Right, I----
Ms. Saldana [continuing]. Make our decisions on the basis
of, just like the federal courts do----
Mr. Culberson. Yes. I will close with this, and I thank you
for the extra time, Mr. Chairman. But if it is not clear, I
mean, we as policy makers and statute drafters wrote this so it
is not ambiguous, it is not discretionary, it is not optional.
We want you to use 34,000 beds.
Ms. Saldana. That is absolutely----
Mr. Culberson. You have got plenty of demand.
Ms. Saldana. That is absolutely----
Mr. Culberson. You have plenty of demand. You----
Ms. Saldana. That is absolutely clear to me. But sir, we do
not detain people just for the heck of it.
Mr. Culberson. I know that. But you could----
Ms. Saldana. We detain people based on what the law tells
us, and that is is this person a flight risk? And is this
person a threat to public safety? And those are the decisions
that our very seasoned officers are out there making everyday.
Mr. Culberson. Mm-hmm.
Ms. Saldana. And from what I have seen and observed, they
are making the right decisions.
Mr. Culberson. Well I feel very confident you could find an
extra 9,000 criminal aliens that needed to be detained to fill
those beds in a heartbeat.
Ms. Saldana. We are working on that. That was part of what
Operation Cross Check was, is----
Mr. Culberson. But you feel like this is, does not require
to use the beds so I think perhaps the language might need a
little tweaking. Thank you.
Ms. Saldana. Well, that is not what I intended. I said it
is capacity. In my view it is there----
Mr. Culberson. Well, the President thinks statutes are
option and subject to his discretion, and he is obligated by
the Constitution to take care that the laws be faithfully
executed. He is clearly in violation of that.
You have told us you do not think this policy that the
President has issued is contrary to the law. We as policymakers
and legislators are here to-- the law enacted by Congress is
what the President and the agencies are to follow, not a policy
directive or a memorandum sent out by the head of an agency. It
is the law enacted by Congress that you and the President are
obligated to follow and there is just a fundamental
disagreement here.
And I think it is at the root of what has outraged the
country, quite frankly, from coast to coast is that the
President systematically and repeatedly refuses to enforce the
law as written, and you have just confirmed that for us today.
It is upsetting and concerning, because we in Texas feel the
brunt of this with the number of criminal aliens coming across
the border. The drug runners, the killers, the sex traffickers.
It is appalling and outrageous and no one is more worried about
it than the communities that, for example, our good friend
Henry Cuellar represents along the Rio Grande River.
Ms. Saldana. And that I have a home in.
Mr. Culberson. Nuevo Laredo is a ghost town, as you know.
It is a terrible situation. So we expect you to follow the law
as written and when something says, ``shall,'' it is not
optional.
Ms. Saldana. We----
Mr. Culberson. Thank you for your time.
Ms. Saldana. And I didn't say that, sir. I really said, in
my view----
Mr. Culberson. You feel like you do not need to use them?
Ms. Saldana. No, sir. We are working to use them. Every day
people are out there trying to find--particularly with respect
to persons with criminal records and those that meet our
priorities, we are trying to find those folks, if we are not
handed them to us by CBP.
To me, the important thing is to make the right decisions
as required by law as to whether we can detain someone or not.
The sole purpose and goal is not to fill a bed, it is to fill
it in the right way. That is my view.
Mr. Culberson. Thank you, Mr. Chairman.
Mr. Carter. I have a lot of things I would like to talk
about, but this is very disconcerting. In the world that I grew
up in, one of the things we prided ourselves in was an
independent executive department, we have an independent
legislative department, and we have an independent judiciary.
As part of the judicial system, you have prosecutors. Their job
is to prosecute those people charged with a crime by indictment
or by information, depending on what level of the court system
you are in. These are very simple.
I think it would be--and I will just bear it down to the
state level for just a moment, which mirrors the United States
Government supposedly-- I think it would be shocking for the
governor of the State of Texas to tell police officers and
sheriffs to make a decision as to whether or not to release
people based upon his directive. You shall release the
following people because these are people I do not think should
be arrested.
Now, follow me on this. You were a prosecutor, part of a
supposedly independent judiciary, but in reality what we are
saying here is it is not really independent. It is dependent
upon what the President directs how you should prosecute and
directs. I believe that there is discretion in a prosecutor's
office. It is the prosecutor's discretion; not the governor's
discretion, it is the prosecutor's discretion. Their decisions
are made upon and available to the court the seriousness of the
offense, the threat to public safety, and all of these things
which are commonsense things that we expect our law enforcement
and our prosecutors to have.
Yes, cops make certain decisions as who to arrest and who
not to arrest under certain circumstances, but not because
somebody directed them to ignore the law. Because we trust our
police officers to determine the exigent circumstances of the
arrest and what they are dealing with and to make those
decisions, not because the governor of the State of Texas tells
Officer Jones in Hosanna, Texas, I do not want you arresting
anybody for drug cases because I like to smoke marijuana.
I am making that up. But at some point in time varying the
way the system is supposed to work, the variations can be
carried to the ridiculous. And the trust that the American
people have in the government, especially the Federal
Government, is diminishing more in the last six years than it
has diminished in the history of the republic. Because what do
a bunch of people in the White House get to say about following
the law? The law, as far as the immigration law is concerned,
recent border crossings shall be detained.
Mr. Culberson. Absolutely.
Mr. Carter. Now, there is a reason for that. You know why
we detain people, you are a prosecutor. I bet you have made
speeches to your juries when you are talking to them. Putting
these people in prison, it deters others from doing it, it
punishes them for doing it, and it protects society. You made
those arguments every time you walked into the courtroom
almost, I almost guarantee it.
Now, that is what we expect. If we follow the logic of
directives from the White House into the judicial system of the
United States, telling you what laws you should and should not
enforce, not use your discretion to do it, no, that is
different. No, you shall do this because I told you to and
there will be consequences if you do not. That is different
than prosecutorial discretion or officer discretion. That is
being ordered at the risk of losing your job, losing your
pension, and losing other things. We are going to hurt you if
you do not do what I say.
We had a guy named King George we had some problems with on
those issues. I want someone to explain why that is different
than what it is supposed to be. This is not about the
Department right now, it is about the philosophical difference
in the view of the government. I run into people literally
every day that say, what are you going to do about the
lawlessness? You are an old judge, you stood for the law in our
county for 20 years, why are you not doing something about the
lawlessness in Washington?
Now, this is just prosecutor to a retired member of the
judiciary. What do you think about that? Because you see this
is the executive branch telling the judicial officers how to do
their job.
Ms. Saldana. I see this as--this is what is so profoundly
confusing to me, why we are ships passing in the night here on
this subject--I see this as an extension of what I did as the
United States Attorney. I knew I had so many millions of
dollars to protect almost 10 million people in North Texas in a
hundred counties, and that I had so many employees and that I
had 3,000-plus laws to enforce. In order to make sense out of
who has the possibility to hurt my community more, there were
people I would have loved for our folks to prosecute who we
just could not reach, I had to make decisions on prosecutorial
guidelines.
Mr. Carter. I agree with everything you are saying. You are
a prosecutor, but that ICE agent sitting out there, he is not a
prosecutor, he is a cop. Are we expanding now to the discretion
of enforcing the laws of the United States down to our law
enforcement officers? Does the constable in my local county
have the ability to make the decision that he is not going to
enforce the law and call it prosecutorial discretion?
At what point do we stop taking this from our created
constitutional system and putting it in the hands of the
individual? Because quite honestly, I do not think we want the
king making that decision, and I do not think we want cops
making that decision.
Ms. Saldana. This is not much different from what they have
done every day, Mr. Chairman. They have even before executive
action, we train them to use their best judgments with respect
to the people they find. And law enforcement, in the end, their
primary interest is protect the community. And the question is,
if you have only got so much money, how are you going to--where
are you going to focus your resources? It makes eminent sense
to me.
Mr. Carter. Then let them make those decisions, but do not
let the President of United States threaten their jobs, their
pensions, and their lives if they do not do it the way he wants
to do it. That is the problem we have got with this system. It
is none of his business how an ICE agent operates unless he is
operating outside the law, if you are saying the ICE agent gets
discretion. If a sheriff's deputy gets discretion, that is
between him and the sheriff, but it is not between him and the
county judge or the district judge telling him, ``sorry, Cop,
here is how I want you to make your arrest''. That is not the
way our system is supposed to work. That is my concern.
I want to get off that, but that is why people at home are
so upset and that is why a lot of us are upset.
Let's talk about your hiring challenges, because quite
honestly that money from this budget does not look like it is
going to get used and we are asking for more for the next
budget. We need to know how you expect that to work. If you are
not going to use that money for that purpose, are you going to
ask for us to move that money someplace else?
Ms. Saldana. Something that has gotten my attention and
that is exactly what you are talking about. The hiring, you
know, up until two months ago we were under the specter of
shutdown and sequestration, and it is not as if you can go out
and hire people under those circumstances. I am not sure who
would be interested in taking a job where they do not even know
if they are going to have one.
But what we did, though--and we are peddling as fast as we
can--what we did do is we started people in the pipeline.
Started interviewing, getting information, applications, geared
up our classes, geared up our classes in order to train people
before they hit the job, and we are working very hard at it. We
have got the balance of this year and then obviously we are
asking for these additional people the next year. I believe
very sincerely that with Oversight--and that is on me--that we
can get through that process, which is cumbersome in the United
States of America with federal employment. It just is,
especially with law enforcement officers who have special
security requirements, as it should be, and training that they
are required to have.
So the minute we knew we were going to have an
appropriation, we geared back up and I think we are going to be
prepared to meet our 2015 hiring. At least it may spill over a
little bit into 2016, but I believe we will get that all done
before the end of 2016. I think we will use that money and that
is why we are asking for it.
Mr. Carter. For hiring?
Ms. Saldana. Yes, sir. Those----
Mr. Carter. Just that what you are requesting is to make a
change. Because you have that ability to ask us to shift funds
to other programs.
Ms. Saldana. Okay.
Mr. Carter. If you are going to, we would like to know what
those are.
Ms. Saldana. Okay, sir. We will keep that in mind and we
will keep you apprised as quickly as we can as we see that
pattern developing.
Mr. Carter. I can understand the argument on the fiasco we
had a while back, and it wasn't my doing.
Ms. Roybal-Allard.
Ms. Roybal-Allard. Okay. Well, not to belabor the previous
discussion, I just want again to have some clarification.
I would agree with the chairman and other members of the
committee, if the decisions that we are talking about were
decisions that were just made in isolation and, you know, the
executive branch came up with an idea and then tried to enforce
it on ICE or any of the other agencies. But it is my
understanding that before these decisions are made, either
through executive order or whatever, is that they are fully
vetted through constitutional lawyers, through the Justice
Department, to make sure whether or not they fall within the
law of what the President can and cannot do.
So if that is not the case, then I would like some
information on why that has not happened. And I do not want it
necessarily right now. But my understanding that these
executive actions have been fully vetted, gone through Justice,
gone through constitutional lawyers, and in many cases the
decision has been said, no, you cannot do this and it has not
been done. Is----
Ms. Saldana. Yes, that is a 33-page opinion from the Office
of General Counsel and it is very thorough and complete. It
certainly satisfies me that those actions are within the law.
Ms. Roybal-Allard. And then I have another point of
clarification. When I asked the questions about did the hunger
strikers at Karnes and whether or not the participants had been
offered release on bond and I believe your response was that
they were given bond determination. And my understanding is
that bond determination can be, you know, no bond. And we have
staff that has met with several of the families that were
involved on these hunger strikes, about four families, and they
were not given a bond amount.
Ms. Saldana. Let's not put the cart before the horse. The
first decision is whether to detain or not. And if a decision
is made not to detain, then the opportunity for bond comes up.
Families are no different from adults, they have to satisfy the
person making the decision that they are not a flight risk or a
threat to the community.
I do not know the four specific families you are talking
about, but they might not have been given a bond opportunity if
the decision was made with respect to those two elements. But
they all know and many, many, many take advantage of our
detention decisions or our specific bond decisions they can
appeal to the court, the immigration courts, to lower the bond,
change the bond, remove the bond, and reverse the detention
decision for that matter.
So as I said, I am happy to visit with you about that. They
either fall into that category--I do not know the four in
particular you are talking about, but they either fall into
that category where a decision was made that they should be
detained and they did not appeal. But if the decision was made,
yes, you can be released, you are not a flight risk, but we
want you to appear in the future, we are going to set this
bond, that should have happened and that is--
Ms. Roybal-Allard. So some could be--like, for example,
these four were not offered bond. And maybe, I don't want to
take up the committee time now, but I would like to follow up--
--
Ms. Saldana. Absolutely.
Ms. Roybal-Allard [continuing]. On that as to what the
reasons were. Because, as I mentioned earlier, there were also
allegations of mistreatment and other things that I would like
to follow up with you on.
Ms. Saldana. Okay. Thank you, Congresswoman.
Ms. Roybal-Allard. Last November, the secretary issued a
memo directing the implementation of the Priority Enforcement
Program, which is intended to take the place of secure
communities, and the PEP program relies on the voluntary
cooperation of local law enforcement agencies.
My question is that, based on ICE efforts so far, have you
found that state and local jurisdictions are willing to provide
the advance notifications and, if not, what are the stumbling
blocks to their participation?
And then, finally, what is the current status of
implementing the program and when will it be fully implemented?
Ms. Saldana. I am very anxious. People have been working
around the clock, the forms, the requests for notification.
This is essentially a new form, as opposed to a detainer
request, I am told finalized. I mean, everyone, including NGO,
has had an opportunity to review them and make comments, and we
have been tweaking and changing. I think that will be imminent.
And our hope is that we can do a form--and we need those forms
before we go to the jurisdiction and say here is the form. I
mean, that has not stopped us from visiting with them. And the
secretary and I actually have made joint visits, at least one
joint visit, and we are spreading out across the country to
visit with folks. I think I made the offer with you to come to
your jurisdiction too. They are listening.
There is a long history, as you well know, with respect to
the secure communities program and the trust. And so we are
doing our best to try to work on that and build--rebuild trust.
So we are hopeful, we are hopeful of the jurisdictions, because
we all have the same interest in mind, bottom line, and that is
public safety. I am hopeful that the program will be kicked off
the ground formally before the end of the month.
Ms. Roybal-Allard. But is your experience that they are
more receptive to this than----
Ms. Saldana. We just started our campaign of going across
the country, but nobody has slammed the door on us.
Ms. Roybal-Allard. Okay. To ensure that under the PEP there
is going to be transparency with regards to ICE's request for
notification, will ICE include the immigration enforcement
priority that is the basis for the request?
Ms. Saldana. You know, as I was saying, people have been
reviewing that form and I know that was a subject of some
debate, and I cannot remember finally what it was. As soon as
we finalize that, we can certainly make it available to you. I
just cannot remember if we ended up with that in there or not.
Ms. Roybal-Allard. Okay. And, finally, last November's memo
from the secretary establishing the PEP indicated that
detainers would only be used in special circumstances, such as
when there is sufficient probable cause to find that the person
is a removable alien.
Is ICE still issuing detainers and who makes the
determination as to whether sufficient probable cause exists to
justify the use of the detainer?
Ms. Saldana. It is the officer. Some jurisdictions are
requesting that a federal judge get involved in these
decisions. I cannot even imagine with the way the courts are
overloaded as it is that a federal judge is going to want to
review an administrative civil enforcement decision to detain.
So that is a big stumbling block with some jurisdictions.
You might have asked another question that I have failed to
answer. Were there two or three questions there? I cannot
remember.
Ms. Roybal-Allard. There were several, but I think you may
have answered. I have already turned the page, so----
Ms. Saldana. Okay.
Ms. Roybal-Allard. During last year's hearing, I asked
about the status of expanding compliance with the 2011
Performance-Based National Detention Standards to more
facilities housing ICE detainees. And the deputy director
stated that he had asked ERO and the ICE CFO to develop an
execution plan that would take into account any increased per
diem costs associated with requiring detention facilities to
meet those standards.
What is the status of requiring detention facilities used
by ICE to adhere to the 2011 Performance-Based National
Detention Standards and do you expect to eventually get to 100-
percent compliance for all facilities housing ICE detainees,
including ICE facilities, contract facilities, and facilities
housing detainees under an inter-governmental agreement?
Ms. Saldana. Of course, with respect to our facilities that
we run ourselves, we are there and we are complying with those.
It is the contract, as you mentioned earlier, that is the
issue, because they have a contract that may run a period of
time that does not have that provision. We are obviously on top
of that. We are expecting them to generally comply, but we will
be sure to put that in the contract in the next go-around.
The last time I checked, Congresswoman, we were about at 60
percent or something of compliance among them and part of that
will be the people who we are going to have to renew their
contracts and put it in there. But it is something that is very
much reviewed. The standards that are applied, that is part of
our monitoring, review and auditing process. We are checking
all the time and making corrective action where there are
issues.
That is the status.
Ms. Roybal-Allard. Okay. Do you have a schedule as to when
you hope to have full compliance?
Ms. Saldana. I do not have one written now, but you know
what I can do is check into that executive action, that
execution plan you mentioned earlier, and see where we are and
provide that to you.
Ms. Roybal-Allard. Okay. And as contracts----
Ms. Saldana. Included.
Ms. Roybal-Allard [continuing]. Come up, that would have to
be included, they would not get a contract unless they were
compliant?
Ms. Saldana. Well, they would have to agree to come into
compliance, yes. We would not say to someone we refuse to----
Ms. Roybal-Allard. No, I know, but would there be then a
time line? In other words, you know, they can say, yes, we will
comply, give us the contract, and then just drag it out until
the end of that contract. So what would be the conditions under
which someone who was currently in violation of not meeting the
standards, what would be the time line in which they had to
until that contract would be revoked?
Ms. Saldana. We would probably have to make that decision
on a contract-by-contract basis, but it stands to reason that
we are going to be approaching that with this needs to be done
within a certain period of time. Negotiations are negotiations,
I cannot represent to you that it will be done within a month
of signing the contract, but it is certainly at the very
highest level of attention when it comes to our new contracts.
Ms. Roybal-Allard. So would those that are compliant, would
they have priority over those that were not yet compliant?
Ms. Saldana. Are you thinking there is a highly competitive
situation out there for people to run detention centers?
Because that really----
Ms. Roybal-Allard. They make a lot of money.
Ms. Saldana. Yeah, they do, but it does not--it is not
palatable to--we do not have people knocking down the doors to
come and run our facilities, unfortunately.
Ms. Roybal-Allard. Okay. That is fine.
Mr. Carter. All right. Well, I think that concludes this
hearing. Thank you for being here. We enjoyed visiting with
you, and we will be visiting with you again soon.
Ms. Saldana. Oh, I am sure. Thank you, sir.
Mr. Carter. Come see us.
We are adjourned.
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Thursday, April 23, 2015.
CUSTOMS AND BORDER PROTECTION
WITNESS
HON. R. GIL KERLIKOWSKE, COMMISSIONER, CUSTOMS AND BORDER PROTECTION
Mr. Carter. This hearing is called to order.
Good morning, everybody. I want to thank you for coming out
early this morning. Today, we welcome Gil Kerlikowske in his
second appearance before the subcommittee.
Commissioner Kerlikowske, welcome. We appreciate you being
here, and thank you for your willingness to serve DHS and our
country.
The fiscal year 2016 budget for Customs and Border
Protection is $13.4 billion, an increase of $803 million above
fiscal year 2015. This is the most substantial component
increase in the DHS budget, which funds vital national security
missions. It is a good budget. However, we are under very tight
budget constraints and must discuss prioritizing CBP's request.
Your budget request also assumes the addition of 2,000
additional CBP officers from fiscal year 2014. However, CBP is
having a fairly difficult time bringing on board the majority
of these officers. Currently, only 700 have been hired, leaving
over 1,200 to be brought on this fiscal year. You understand
the important national security role that CBP officers will
fill. We can't afford to delay their hiring, nor can we afford
to let funds expire.
Similarly, the Border Patrol has 852 agents below the
mandated 21,370 agents. This leaves the subcommittee concerned
that CBP isn't able to sustain the existing workforce, let
alone the mandated floor levels of agents. These are urgent
problems that we have to fix.
The request also includes a contingency of $79 million for
a potential surge of unaccompanied children. While we
understand the numbers are lower than last year--and we thank
God for that--we look forward to hearing your update on the
current estimate of UACs.
The request also includes numerous other increases,
including $85 million for nonintrusive detection equipment, $44
million for new fencing in Arizona, $79 million for facilities
sustainment, and $29 million of electronic visa information
system updates.
As many of you are aware, our top line numbers were
announced yesterday, which will make funding these and many
other requested increases very difficult. I look forward to
working with you over the next several weeks to prioritize
funding to the most needed programs.
Lastly, Commissioner, sovereign nations control and manage
their borders and sustain the integrity of their immigration
systems. These objectives are your duty, and I expect nothing
less from you and from the men and women that work with you in
CBP.
Now let's turn to Ms. Roybal-Allard, our distinguished
ranking member, for any remarks she may wish to make.
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Ms. Roybal-Allard. Thank you, Mr. Chairman.
And welcome, Commissioner, to our subcommittee.
The discretionary budget request for U.S. Customs and
Border Protection in fiscal year 2016 is $11.5 billion, an
increase of $685.5 million above the fiscal year 2015 level.
That is approximately 40 percent of the total discretionary
increase proposed for the Department as a whole, and the lion's
share of CBP's proposed increase is for the rising costs of
personnel.
Salaries and benefits, in fact, make up 70 percent of CBP's
total budget request compared to just over half the budget just
7 years ago. This trend is concerning because it makes it more
difficult for you to invest in the kinds of technologies on
which border security increasingly depends.
On the other hand, CBP has, for a variety of reasons,
struggled in hiring new agents and officers, including the
2,000 new CBP officers funded in the fiscal year 2014 bill. As
a result, the numbers of Border Patrol agents and CBP officers
are significantly below the required levels.
It is also worth noting that a significant portion of CBP
operations rely on user fees that have not been adjusted in
many cases for more than a decade. Without fee level
adjustments to account for rising costs, there is a growing gap
between fee collections and the operations they support, which
puts an even greater burden on discretionary funding.
I would also like to highlight that in recent years, the
Department has embraced the concept of risk management. While
we can't eliminate risk, we can be strategic about identifying
risk and targeting resources accordingly. That approach is
certainly inherent in the impressive work of CBP's National
Targeting Center, which I visited a few weeks ago. I hope we
can help CBP continue to improve on the good work already being
done there.
CBP also continues to make progress in improving
situational awareness at the border and in targeting better the
use of technology, personnel, and other resources based on
risk. In addition, the Secretary's Southern Border and
Approaches Campaign is taking the Department's border security
effort to a new strategic level, and CBP is, of course, a big
factor in that equation.
But I think CBP and the Department still have a major
challenge in communicating to Congress and the public what a
secure border looks like, what your plan is for achieving it,
and how long it will take. I feel certain that comprehensive
immigration reform is in our future, hopefully our near future.
But whenever it comes, it will be important to have a better
consensus definition of what constitutes border security.
I also have some ongoing concerns about the use of force
along the border, the treatment and care of unaccompanied
children, and ethics and integrity oversight that I will want
to discuss with you this morning.
So once again, I appreciate you joining us, and I look
forward to a productive discussion.
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Mr. Carter. Thank you, Ms. Roybal-Allard.
All right. Mr. Kerlikowske, we will recognize you for 5
minutes to summarize the information that you have submitted to
the committee, and then we will have a few questions.
OPENING STATEMENT: COMMISSIONER KERLIKOWSKE
Mr. Kerlikowske. Thank you, Chairman Carter and Ranking
Member Roybal-Allard and the members of the subcommittee. I
want to thank the members of the committee for the passage of
the spending bill for the remainder of this fiscal year. It
enables us to do a better job to execute the full scope of the
very broad mission we have, from providing the means to invest
in needed border technology to the flexibility to care for
unaccompanied children.
When I appeared last year, I had been Commissioner for
about 2 weeks. I am thankful to be here a year later and to
share some of the accomplishments that CBP has made and to
highlight how the administration budget will help us move
ahead.
I have been privileged in this last year to visit dozens of
our land, air, and sea ports of entry, our Border Patrol
stations, our forward-operating bases, and our air and marine
units. I have listened carefully to frontline personnel. I have
seen the challenges they face and how the resources that the
committee has provided have really translated into a more
efficient and effective workforce. And I have seen firsthand,
most importantly, how committed our employees are to our
mission, and I am proud to represent them at this table.
My first year was a combination of profound challenges.
Within the first week of being sworn in, I was down in McAllen,
Texas, to view firsthand the unprecedented number of
unaccompanied children and families crossing the Southwest
border, I think, as all of you have also. And I think since
then I have made about 10 more trips to McAllen.
In addition to the response at the border, the CBP officers
and the Border Patrol agents I saw demonstrated humanity and
compassion to those kids. CBP and our partners then launched an
awareness campaign in the three Central American countries
about not only the dangers, but the fact that if you do arrive
here that you will not be allowed to stay.
In the event of another surge, we are much better prepared
now than we were then, and this budget provides additional
resources for the safety of the children and the families in
our care.
And then we responded not long after that to the Ebola
crisis in West Africa. Working closely with the CDC Centers for
Disease Control and Prevention, we set up processes to funnel
travelers from the affected countries to five airports where
they get enhanced public health screening.
During events such as these, we also have the everyday
activities that the American people place their trust in us to
keep them safe. We are, as I often remind our people, we are
the guardians of the Nation's borders. As I stated a year ago,
to ensure that trust we must instill the highest levels of
transparency and accountability.
We have made progress in this by publishing a Use of Force
Policy handbook, establishing a formal incident review process,
and transitioning our Internal Affairs special agents into
criminal investigators. That increases our ability to
investigate misconduct.
The President's budget builds on these accomplishments and
provides $13.4 billion to enhance CBP's efforts in the three
areas. First, the budget enables us to advance our
comprehensive border security operations, deploying technology,
mobile video systems that many of you have seen, Department of
Defense repurposed equipment, such as aerostats and thermal
imaging. And the budget allows us to complete the
infrastructure tactical investments that are needed on the
Arizona border.
It enhances our capabilities for counterterror and
transnational crime by assisting CBP in building that
counternetwork capability, and it supports the Secretary's
Southern Border and Approaches Campaign, which I know all of
you are familiar with.
Lastly, the budget continued our efforts to enable lawful
trade and travel, and we are grateful for that appropriation.
As trade and travel increase and benefit the economy, we know
we have to get the right people in, and we have to get them in
safely. We have to get the right cargo in, and we have to move
it expeditiously.
The budget provides funding for these critical investments
in nonintrusive inspection devices and also to help improve
travelers' experiences through these innovative business
transformation initiative and the public-private partnership.
So thank you for having me today. I look forward to
answering your questions, Mr. Chairman.
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CUSTOMS AND BORDER PROTECTION OFFICERS: HIRING
Mr. Carter. Well, thank you, Commissioner. We are happy to
have you here.
I want to remind everybody that even though we are in a
closed room, for the young lady who is taking the record, we
need to be sure and have our microphones on when we talk.
Let me start off by talking about our hiring challenges. In
2014, Congress appropriated for 2,000 additional CBP officers.
Everybody that had asked for that was pretty happy. A lot of
the ports of entry had concerns. This brings our total to
23,775. However, CBP currently is 1,302 agents below the funded
levels.
I have about three questions here that you can answer. How
many officers will be on board by the end of this fiscal year?
Accounting for the increased attrition, will CBP be able to
have all 23,775 officers on by fiscal year 2016? And what is
CBP doing to address the slow rate of hiring of funded
positions?
Mr. Kerlikowske. We will fall short by the end of this
fiscal year, but I assure you that we have made great progress.
And even though only 700 have been hired now, we are really
moving much more rapidly to get those people on board. And we
appreciate and understand the fact that these are appropriated
dollars, that to the American public, when these folks get on
board, they get people through more quickly. And it actually,
as the research shows, makes money for this country by getting
them on board.
But two things occurred that were particularly problematic.
And you well know, Chairman, from our past history, when we
lowered our standards of hiring and did not properly vet
people, we made mistakes in who got hired. And we paid a price
for that, and we are continuing to pay a price for that.
So the company that did background screening through their
systems had a breach of security, and so everything was shut
down for actually a number of months. So that slowed everything
down.
The second part is that we don't hire anyone without being
polygraphed before they get on board. Finding the requisite
number of certified Federal polygraph examiners has been
particularly difficult. We have hired a number of people. We
have made sure that we are doing our very best to deploy them
and to have people. We have lots of applicants, and we are
screening them well through our hiring center. But both of
those things.
But I would tell you that there is a lot of light at the
end of the tunnel. We have moved much more rapidly. And even
though we have only hired 700, the deficit for both Border
Patrol agents and for our CBPOs [CBP officers] will certainly
be much less by the end of this fiscal year and certainly by
the end of the calendar year.
POLYGRAPH OPERATORS
Mr. Carter. Well, that is interesting, the polygraph
operators especially, because we have heard that story from you
and others in other hearings and places. And the question that
I never have been able to understand, is if there are not
enough polygraph people available to hire, and there are
people, for instance in Texas, the Texas Department of Public
Safety has a lot of polygraph operators, it might be you could
subcontract with them somehow.
I know from personal experience that there is a large
number of polygraph officers, Spanish-speaking polygraph
officers in the Rio Grande Valley, because they come up in
large numbers and train in Austin. As a young defense lawyer, I
learned an important lesson: If you have a client that,
although he speaks perfect English, he was raised in a Spanish-
speaking family, to get the best results you need a Spanish-
speaking polygraph operator. Because amazingly enough, even
though they would tell you they were not translating in their
brain, they are, and you will get an inconclusive.
I had a client that swore up and down he wasn't a thief. He
said: ``I might be a murderer, but I am not a thief.'' I
thought that was an interesting defense to take to a jury. So I
talked to the district attorney to let me go and have him
polygraphed and he came up inconclusive, which was not good for
me.
And then the operator said: ``Well, we have a bunch of
Spanish-speakers that are up here from the valley, let them run
him in Spanish.'' And he came out like gangbusters in Spanish,
which I got him a much better deal that way.
Mr. Kerlikowske. Your suggestions are ones that I certainly
explored because I had polygraph operators certainly when I was
the police chief in Seattle. Texas Department of Public Safety
has one of the best polygraph programs. And so I explored with
the Federal certified polygraph examiners why we couldn't
contract with or use them, and I thought that it would make a
great deal of sense.
I have run into a real stonewall with that organization
that keeps a very close hold. And I know that there are some
reasons why we can't do that, because DPS [Department of Public
Safety] in Texas is not certified in the Federal system. But I
am continuing to push that issue very strongly because I think
there are other ways to skin this cat.
BORDER PATROL AGENTS: ATTRITION
Mr. Carter. Well, maybe that is something we ought to look
into. Mr. Cuellar and I are both very familiar with what you
are talking about. So I will take a look at that issue.
Another concern, the Border Patrol is over 850 agents below
the mandated 21,370 floor. It is not news. It has been around
for a while. So the underexecution of agents is not due to
hiring up at a new level but sustaining the existing workforce.
What are we doing to address the hemorrhaging of agents from
the Border Patrol? And this isn't a new issue. This issue has
been around since I have been on this committee.
Which brings up a question that came up in the conversation
in the last 2 days in my office. My deputy chief of staff is a
former command sergeant major in the Army, and some people, not
including myself, have been discussing with Border Patrol
people who said that they wish they had better training. The
initial training is good, but there is not the continuing
training that we have in our professional Army, where
literally, every time you come off a mission you are retrained
for your next mission. It is a new training cycle every time
you transition.
I am not sure we can get to that level of training
proficiency, but there is basically, from what I understand,
very little continued training after the initial Border Patrol
training. And that might be something that builds that esprit
de corps which would hold our officers in. I don't know. But I
want you to think about that, and then whatever thoughts you
may have about what we can do for the hemorrhaging of the
Border Patrol.
And finally, that is over $180 million of appropriated
personnel funding. What has been happening to those funds?
Mr. Kerlikowske. So in the Border Patrol, attrition jumped,
it doubled. It is about 4.7 percent. There are a lot of reasons
for that. I think that one is that about a year ago, when
agents could retire, they could transfer their unused sick
leave toward their retirement. And that is no longer in place,
so people took advantage of that.
They also had the continuing issue of this, as you well
know, this Border Patrol Pay Reform Act and the use of
additional funds. We are quite pleased, of course, that
Congress passed the Border Patrol Pay Reform Act. We are in the
process of implementing it. At the same time, Fair Labor
Standards moneys and AUO [administratively uncontrollable
overtime] money is also having to be changed. So we are in that
process.
A number of Border Patrol agents who were looking for
transfers have moved over to Customs and Border Protection.
That is a benefit to us. But it also makes it particularly
difficult with the Border Patrol because we need to fill those
slots. And of course our focus was on the appropriated funds,
the $180 million, the amount of money that is not being used
for salaries because it is available.
So the Border Patrol has used a lot of that money for
technology. We will certainly provide you with the figures. But
because we will also be in the process of advertising, hiring,
screening, selecting people, some of that money is being
carried forward so that we can continue that hiring process to
make sure we get up to speed.
We have a lot of good applicants. We have a good system in
place now, provided there are no more security breaches. We
have a lot more polygraph operators on board. But I don't want
to come back to you a year later and say: Well, we have gotten
everybody hired, but perhaps we hired some people that
shouldn't have gotten on board. I would rather tell you that we
are not as far advanced in hiring as we should be, but I don't
want to get the wrong people into place.
Mr. Carter. I can't disagree with that. I agree with that.
But in turn, we can't sit on pots of money in a time when we
are scratching literally every penny out of these budgets to
make sure that we are giving you everything that you need. I am
a frontline troops guy, okay. I want to make sure the people
that are in harm's way have everything they need, because,
quite honestly, those of us that sit in the offices have to
rely upon them to be out there in the bush.
And having had a one-night experience with the Border
Patrol, that is not a very fun job. Everybody ought to go sit
out in the cane for a while and get a good impression of what
these guys and gals go through.
Well, that is something we need to be looking at very
closely, because if we are not going to use the money, then we
have to use it for something else.
Mr. Kerlikowske. Yeah.
Mr. Carter. All right. I guess my time is up.
Ms. Roybal-Allard.
UNACCOMPANIED CHILDREN: PREPAREDNESS
Ms. Roybal-Allard. Commissioner, CBP was challenged last
summer in managing the influx of unaccompanied children across
the Southwest border. Are you satisfied that CBP is fully
prepared to deal with a repeat of last summer's influx were it
to occur, including being able to address the full range of
needs of these children? And perhaps even more importantly, are
you confident that the Office of Refugee Resettlement is
prepared to accept custody of the children within 72 hours of
their apprehension by CBP?
Mr. Kerlikowske. Congresswoman, and certainly I appreciated
very much accompanying you on your visit to see that and to go
through that.
So, first, yes, I am fully confident that the Border Patrol
has much greater resources, is much more fully prepared to
address this issue with contracts in place for health care, for
food service, and for transportation that can be used, and an
additional processing center that was purchased and equipped.
I am also very grateful and will knock on wood that we are
down about 48 percent, about 17,500 apprehensions this year--or
``encounters'' is probably the better term--with unaccompanied
children. So that is down significantly from last year. We
watch it very carefully, we have good intelligence through
other means, and we are better prepared.
The Office of Refugee Resettlement through the Health and
Human Services [HHS] has taken this issue on. We work much more
closely with them. Their footprint was certainly not as large
as ours, and a lot of what is done through HHS is also done
through contracts. So my visibility on all of their
preparations is not as clear as for my own. But I am much more
confident that they are in a better position now, having
experienced what we all did last year, than today.
Ms. Roybal-Allard. And to what do you attribute those lower
numbers?
Mr. Kerlikowske. Well, one, it would be a mistake to pat
ourselves on the back for those lower numbers because we don't
know what the future will bring.
I think the aggressive campaign that we did with the
Department of State, from bus placards to overhead signs to
social media, saying that, one, it is dangerous, and two, if
you do arrive here illegally, you will be detained and you will
not be allowed to stay, has been a powerful message.
And I think that the fact that the President has met with
those three Presidents, and the Vice President has been down
there. Secretary Johnson has been full-throated in his
discussions with the heads of those countries also. And quite
frankly, the Government of Mexico is doing a remarkable job on
their border with Guatemala to reduce the problem of people
coming on the train.
UNACCOMPANIED CHILDREN: MEXICAN
Ms. Roybal-Allard. Okay. Speaking of Mexico, I would like
to ask a question about the unaccompanied Mexican children who
cross the border.
The Trafficking Victims Protection Act requires CBP to make
three determinations with regards to the unaccompanied Mexican
children. First, the child has not been a victim of
trafficking; the child does not fear returning to his or her
country of origin; and third, the child is able to make an
independent decision to return home.
If CBP cannot affirmatively make all three of these
determinations, the law requires CBP to treat them like
unaccompanied children from noncontiguous countries. In other
words, they must be transferred to the custody of the Office of
Refugee Resettlement. And in any case, the child can only
return home if they voluntarily withdraw their application for
admission.
I have been concerned that CBP may have a practice of
simply repatriating Mexican kids without the full evaluation
and allowing them to make an independent decision as the law
requires. What kind of assurance can you give that CBP is fully
following the requirements of the Trafficking Victims
Protection Act with respect to Mexican children?
Mr. Kerlikowske. The training that the Border Patrol agents
receive in the academy includes the training and the
requirement that they ask questions, whether or not the child
is afraid to return back to their home country, and so there is
a minimum of those three questions. The follow-up question is,
is there anything else that you want to tell me? In addition,
we have online training that the Border Patrol agents must take
so that they understand the settlement in the Flores v. Reno
case, and also understand the act on protection.
And I guess I have two feelings, and I know you have
expressed some issues about whether they are the best people to
do that, to ask that question. They are the first people that
these children encounter. Those questions are asked, and it is
a minimal number of children from Mexico who then say: No, I
don't want to return or I am afraid.
We know from the experience of last summer that lots of
children went to the Border Patrol agents in uniform and
approached them. So there wasn't a fear; there wasn't a concern
on their part. In fact, they felt that they would be protected.
But would we be willing also to look at other means of further
clarifying and asking those questions perhaps with other
individuals? I would be happy to explore that.
Ms. Roybal-Allard. Like with the Office of Refugee
Resettlement, would that be a consideration, of having them
look into this, talk to these children?
Mr. Kerlikowske. It would, and I would be happy to do that.
I think we just have to keep in mind two things: one, the size
of those Border Patrol stations, which are pretty busy; and
then also, the capacity of the Office of Refugee Resettlement.
But if you would like, I would be happy to explore that
further.
Ms. Roybal-Allard. Are there any records or any evidence
that you could point to, to substantiate the fact that Border
Patrol is, in fact, doing--I understand they get the training
and everything--but to actually show that these things are
taking place?
Mr. Kerlikowske. I will be happy to provide that. And I
think from the unannounced inspections that the inspector
general's office did last year to the Border Patrol stations,
those were things that were addressed and how are these kids
being treated.
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Ms. Roybal-Allard. Okay.
Mr. Carter. We are going to go in the order that people got
here.
Mr. Young.
DIRECTIVES
Mr. Young. Thank you, Mr. Chairman.
Commissioner, welcome.
I want to just bring up an issue that came up in our
subcommittee last week when Director Saldana was here. A quote
was given from the President that he gave on February 25 at
Florida International University. He was talking about the
Border Patrol, ICE agents, and their new directives, and for
those who aren't paying attention to the new directives and
they don't follow the policy, that there are going to be
consequences to that.
I brought that up to Director Saldana, and her response
regarding whether or not it is important to follow the law over
the directives. I said the law should be first, and she said
that she fundamentally disagreed with that. That was very
concerning to me and many members on the committee.
What is the priority, in your mind, directives or the rule
of law?
Mr. Kerlikowske. Well, I mean, for us, it is much more
complicated than that. We have a number of attorneys and a
number of people whom I have to work with on the President's
directives. And the advice and the decisions, given those
directives, were that they were within the law.
As you know, this is certainly on hold as the Court of
Appeals looks at this issue. But for all of the laws that the
Border Patrol agents enforce and for the 500 laws that our
Customs and Border Protection officers enforce, for many
Federal agencies, there are a number of directives that go
along with them about how to interpret and to utilize those
laws.
And so I would tell you that it is always our duty to
follow the law, but certainly the directives, as they have been
explained to me by legal staff, were within the law.
UNMANNED AERIAL VEHICLES
Mr. Young. My office is hearing from whistleblowers and
folks concerned who work for the Department of Homeland
Security, for ICE, for the Border Patrol about what the
President said and it sounding like a veiled threat in a way,
and that they are fearing retribution. Some believe that they
have received retribution. And I just want to make sure that
you stand up for them, and those that see the rule of law as
number one, that you look out for them. So thank you for
commenting on that.
I was down on the border. It was eye opening. It was a very
good education for not only myself, but I think anybody who is
going to make decisions up here regarding the border and
homeland security. The aerostats that I saw, I thought were a
great addition for helping. Can you talk about how the
aerostats have helped out, and what other UAVs you are using?
My understanding is that Chairman McCaul went over to
Afghanistan and saw those aerostats up in the sky and said
maybe we could use those on the border.
I hope you are working interagency-wise to find what other
agencies are using to help with the border. Can you comment on
that, the aerostats, how they are doing, do you plan to have
more, and how you are working with other agencies to find new
technologies?
Mr. Kerlikowske. Well, I think the aerostats have been well
received and have been in use, and they are repurposed from the
Department of Defense. They are expensive, as almost all the
technology is, but we have seen success, whether it is in the
Rio Grande Valley or certainly in other locations, by using
them.
The Department of Defense has been a great partner, along
with NORTHCOM, the Joint Task Force, and others in helping us
with night vision equipment, thermal imaging, and the
aerostats. The feedback from the Border Patrol is that the
aerostats do two things. One, they really expand situational
awareness. We just saw that in McAllen a few months ago with a
series of arrests of people smuggling drugs who then decided to
engage in a shootout with the Border Patrol. But that was
detected through an aerostat.
And I would love to be able to expand that. It is
expensive, and we have lots of technology needs because the
technology is a game-changer. The UAS, I believe, is
particularly helpful and important because they provide that
situational awareness, the VADER [Vehicle Dismount and
Exploitation Radar], the radar systems. And, again, the
imaging, the fact that they can be up to 12 hours at a time is
helpful.
TUNNEL DETECTION TECHNOLOGY
Mr. Young. And, of course, while we are watching from the
eye in the sky, there are things going on underground. Can you
talk about the technologies there that you are using? There are
some pretty sophisticated networks underground that they are
using to come into the homeland underground.
Mr. Kerlikowske. Yeah. And I think the weakest area of
technology that we have, is the ability to detect tunnels. We
have worked with DARPA [United States Defense Advanced Research
Projects Agency], and we have worked with other organizations
to find some level of tunnel detection.
Now, the vast majority of the tunnels are in Arizona and
California and mostly are used for smuggling drugs. But we
continue to struggle with what are the electronic systems that
could help us identify where the tunnels are. Right now it is
either human intelligence or a truck falls through a hole in
the ground by driving over. And there is probably something
more sophisticated out there in that area.
I think the motion detectors, the remote video surveillance
systems, such as the Scope trucks, using both infrared and
video, are all helpful. And a lot of those have been repurposed
from DOD.
SUGAR CANE
Mr. Young. And then just finally, underground, eye in the
sky, on the ground, we were in McAllen, Texas, and we went up
and down the Rio Grande River. On the American side, we saw
sugar cane, a lot of weeds, what are seen as an invasive
species of sugar cane that doesn't have much use. It seems to
me like there are some efforts to get rid of that so that we
can better watch our homeland. Can you comment on that?
Mr. Kerlikowske. You know, as you have and I have been on
the river a number of times and looked at the difficult
terrain, particularly when somebody crosses and then enters
into those high cane fields, how difficult it is. I was
actually unaware that that cane wasn't a commercial or
marketable sugar cane, but I would be happy to explore that and
learn more about that.
Mr. Young. Thank you. Thanks for your testimony and being
here.
Mr. Chairman.
Mr. Carter. Mr. Cuellar.
PROFESSIONALISM CAMPAIGN AND FENCES
Mr. Cuellar. Thank you, Mr. Chairman.
To start off, I want to associate myself again with the
chairman's comments on the officers. I think we appropriated
this back in 2013, fiscal year 2014, and we are still holding.
And you seem to equate that if we move faster, then you lower
the standards. I don't necessarily equate that if we move
faster you are going to lower the standards. So, again, I would
ask you, because, Laredo has the largest inland port, 12,000
trailers a day, and we really would like to have those move a
lot quicker also.
Second of all, I want to say that your folks in Laredo have
been doing a great job, that I am hoping we can expand this to
other ports of entry, and that is PRIDE Initiative. It is a
rider that we put in about professionalism. I will be in San
Diego. Those folks over there want it, I think they want it
everywhere, balance between security, but at the same time,
without having your men and women treat most of the people as
criminals, because they are not criminals. And we are talking
about the ports of entry, not outside the ports on that. So I
would ask you to just continue expanding that initiative. Your
folks in Laredo have done a great job.
The second thing is what the ranking member said. I just
want to mention that there is an agreement between the U.S. and
Mexico, before Border Patrol returns one of those unaccompanied
kids, they go to the Mexican consulate. The consulate will go
through the same questions that Border Patrol asked and then
they return it. So just keep in mind there is an agreement. We
will be happy to provide that to you if you don't have that.
The other question, and I have a series of questions, is
the fence. And I don't know what your latest numbers are, but
when I was on the Oversight of Homeland, to put 1 mile of
technology would cost about $1 million. To put 1 mile of
fencing, it would cost about $7.5 million per mile. So I would
ask you if you can update that. I am not a big supporter of a
fence. If anybody wants a fence, I would be happy to support a
fence around your hometown if you want that. But update those
numbers if you can, sir.
And the reason I am asking about that is because I know one
of our colleagues in Arizona was complaining, questioning how
you spent $730,000 for 60 feet of fencing, which works out to
about $12,166.66 per foot to fix a fence, and I think that is
just a little bit. And I saw the response that you all
provided. But I think over $12,000 to fix 1 foot of fencing is
just a little bit on that. So I would ask you to look at that.
And then does your Department--I know this has been a
question in Texas--does your Department also provide breakdowns
as to what Border Patrol catches, drugs, et cetera? I know that
the locals provide that. I assume the State of Texas has their
own numbers, because there has been a question that the State
of Texas doesn't break down. They put everything together on
this.
I will be happy to provide that information. But if you can
follow up on whether you break down, what you all catch,
whatever the State does in the State of Texas and whatever the
local folks. I know that my brother, who is a border sheriff,
knows what he catches, and he knows what DPS does, and he knows
what the other folks do, because everybody keeps their own
records.
Finally, the last thing, Mr. Chairman, I was talking to
Chairman Culberson on this, but also Mr. Carter, and I don't
want to put this out, but the details of the thresholds that
every sector has, what the U.S. attorneys.
Members, if you don't have a copy of that, I think it was
provided to the committee, but if you look at the thresholds,
every area has a different threshold throughout the Southern
border, which means if I was a bad guy and I know that the Feds
are not going to prosecute, I will go to certain areas and keep
it under those thresholds, whether it is cocaine, marijuana,
whatever it is.
We sometime, Mr. Chairman, we know need to go over this
particular situation because then the burden is put on the
local prosecutors on that.
So I know I gave you a series of questions. You can follow
up with some of them. Overall, I appreciate the good work that
you are all doing. I am glad that some of you all are starting
to look at some of the things. But quite honestly, some of us
are here longer than some of you all in your position. So on
issues like cane, we live in the cane. We don't just go in and
go out. We see that every day.
Your response, and I say the Department, was to put Spanish
wasps, to release them, that that would take care of it. It was
millions of dollars. There are folks on the border, like the
Texas Soil and Water Conservation, that can do that a lot
cheaper, they have been doing this for a long time, that can
get rid of that cane. But your folks said: No, they wanted to
work with USDA and put a Spanish wasp there.
That Spanish wasp has not been very successful because the
cane that I have seen and other members have seen, it hasn't
worked. And those bad guys are still using that for coverage.
So I know I gave you a couple of statements, and if you can
follow up on some of them with our office as soon as possible.
Mr. Kerlikowske. Can I respond to a couple things?
Mr. Carter. Yeah, you bet.
Mr. Kerlikowske. Thanks.
So one, I first very much appreciate the invitation, and it
was a great honor to be a part of the bridge ceremony in
Laredo. It was a wonderful opportunity to see people coming
together in the middle of the bridge.
I want to thank you particularly for your personal
involvement in the professionalism campaign. So this is a
campaign that exists in all of our ports to have our Customs
and Border Protection officers, those people in blue uniforms
who are, one, the frontline of making sure that people who try
to get into the country through the ports, through fraudulent
documents, who are wanted on warrants, et cetera, that they are
apprehended, that they don't get in. But they are also the
first ambassador that somebody sees when they enter the
country.
And I am always impressed when I hear someone tell me that
when I went to customs, they said welcome home or welcome back.
And this professionalism campaign is very good, and I attended
the one in Baltimore. But you going and actually speaking to
the CBPOs, I think is particularly heartening.
The fence issue in Arizona was actually a little over 200
feet of fence, and this was washed out through a microburst.
And the repair of the fence, 700-plus thousand dollars was
expensive, but there was also the removal of about 150,000
pounds of concrete and other things that actually caused that
disruption. So it was both things.
And I agree with you, sometimes the Federal Government
isn't the best place to enlist when you are looking to save
money on a particular project. But I didn't find this
particularly over the top when I was also informed about how
much debris, concrete debris had to be trucked and hauled out
of there. And I will be happy to give you more information on
fencing costs.
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Mr. Cuellar. Okay. Thank you, Chairman.
Mr. Carter. Thank you.
Mr. Frelinghuysen.
APPREHENSIONS: COUNTERTERRORISM CAPABILITIES
Mr. Frelinghuysen. Thank you, Mr. Chairman.
Good morning, Commissioner. Thank you for 40 years of
service in law enforcement. Also for having a good sense of
humor. I note the hour, and I am sure we appreciate your being
here on time. I was barely here on time.
Sort of following along with Mr. Young a little bit, his
line of questioning. First of all, Mr. Carter, and I serve on
the Defense Appropriations Committee, and actually I think I
know more about the Middle East border than at times I do my
own border.
As you look at our Southern border, and you look at things
happening in South America and Central America, we hear some
incredible figures about the death rate of killings in Mexico,
some figure of 45,000 people who have been killed, the power of
the cartels, a lot of activity. We only need a few bad people
to get through the process here. And I know part of your
statement relates to capabilities on counterterrorism.
What is your take on that part of your responsibility?
I know you have a working relationship, thank goodness. We
are pleased to hear positive comments about your working
relationship with the Department of Defense.
What is your take on that aspect of apprehending the people
who would do us the most harm?
Mr. Kerlikowske. And I think that we are at about 169,000
apprehensions so far this year, and although that is down from
the total numbers last year. That represents around 150
different countries. People often think it is going to be the
three Central American countries that were most problematic
last year, and Mexico, but the numbers of apprehensions of
people are from all over.
I think that one of the huge benefits that this Congress
has done with the United States Border Patrol is to increase
its numbers. It wasn't that many years ago that it was 7,000,
8,000, 9,000 people; today it is 20,000.
When someone is apprehended, it gives us the ability to
debrief them, to ask questions. So rather than leading 20
people into some level of detention after apprehension, we
could actually sit down and question and debrief them. And I
think that that is very helpful when it comes to people who
would do us harm greater than just entering the country
illegally. So I think that that is important.
The other key factor, I think, and the ranking member
mentioned it, having gone out to the National Targeting
Center--I would certainly welcome, and I think she has
expressed that to members of the committee, welcoming you to
visit--Our interaction, not just with the Department of Defense
through information technology, but with the National
Counterterrorism Center and other Federal agencies, is helpful.
And then the boots-on-the-ground issue, as I have spoken
with the chairman--The boots-on-the-ground issue is that our
Border Patrol agents are a part of those communities. They work
with local sheriff's departments. Texas Department of Public
Safety, Steve McCraw is held in high esteem by me personally,
and that relationship is very good.
TERRORIST ACTIVITIES, FUELING
Mr. Frelinghuysen. Do you subscribe to the notion that a
lot of what is happening in South America and Central America--
and I know you have certain responsibilities--that a lot of the
shakedowns and the activities of cartels--and this is sort of
in, I think, certainly open sources--that a lot of that might
be fueling some terrorist activities?
Mr. Kerlikowske. I think that there has been a lot of
research, and certainly during the time that I served as the
President's drug policy adviser and spent a lot of time on some
of these issues also-- We know that transnational organized
crime looks for lines of business just like any other business
and where they can make a profit.
We also know that terrorists need money and they need
financing, and the information that terrorist organizations
have engaged in illegal activity, everything from smuggling
cigarettes to used cars, those types of things are important.
And I think that the more emphasis we place on going after the
money, the more harm we can do to those organizations. So I
think you are right.
TUNNEL DETECTION TECHNOLOGY
Mr. Frelinghuysen. And lastly, getting sort of back to Mr.
Young's comments, I was surprised, and I know Chairman Carter
heard this in terms of the continent of Africa, the limited
ISR. And then I hear that it is also true for your area. I just
wondered what assets you are missing. I know you have a
relationship with the Department of Defense, DARPA, you are
using all sorts of technologies. But if you are impoverished, I
think it is important for all our committees to sort of know
what you need.
Mr. Kerlikowske. Well, I think, when I spoke with Mr.
Young, I think the tunnel detection technology could be
improved because that is a difficult area.
Mr. Frelinghuysen. Well, the technology actually exists. It
does exist. You just haven't had it. It hasn't been given to
you. Is that correct?
Mr. Kerlikowske. Well, actually, the tunnels that we have
been encountering that are much deeper, things like ground-
sensing radar and things like that, actually haven't been all
that successful. So working with our science and technology
counterpart at DHS, that would be one area that I would like to
do.
And, of course, the other is that a lot of the technology
needs to be updated and refreshed. The aerostats that you
mentioned, some had been sitting in a warehouse postwar for 5
or 6 years. That means when it comes out that the technology is
old, they need to be updated, et cetera. There is a cost there.
Mr. Frelinghuysen. You have brought it to our attention.
Thank you, Mr. Chairman.
Mr. Carter. Mr. Price.
CARGO SCREENING
Mr. Price. Thank you, Mr. Chairman.
Commissioner, welcome to the subcommittee. Thank you for
your good work.
I would like to focus today on some of your overseas
operations, both with respect to passenger preclearance and
cargo screening. Let me start with cargo screening.
As you well know, there is 100 percent requirement in the
law for the scanning of 100 percent of maritime cargo
originating in foreign ports prior to landing. For a variety of
reasons, good reasons, I think, from cost to technology to the
infrastructure at many harbors and ports, this requirement
seems like a distant reality.
So recognizing that, last year, the Secretary extended a
waiver on this requirement by 2 years. Now, I understood and
supported this waiver, but I have again been disappointed by
the Department's failure to take the longer view and to propose
a legitimate alternative to the 100 percent screening
requirement.
Last year's committee past report included language making
it clear that the subcommittee did expect CBP and the
Department to lead on this issue and to propose alternative
requirements that could realistically be achieved within the
next 2 years. We also required the Department to propose
medium- and long-term goals for increasing our scanning
capabilities at high-risk foreign ports.
So therefore, these questions. What is the status of
meeting these goals? Should we expect the Secretary to again
request a waiver to delay implementation of the requirement?
What are the technological hurdles that still need to be
overcome to ramp up the amount of cargo we screen overseas,
just setting aside the 100 percent figure? To the extent we can
and should be ramping overseas screening up, what are the
technological hurdles that need to be cleared? And are there
diplomatic or other hurdles that we may have underestimated?
Mr. Kerlikowske. So I know that the Secretary has made this
a high priority, and I know that his statements have been that
it is the law and that he should do everything possible to move
to the 100 percent scanning.
And it certainly involves, as you know, not only a complex
set of diplomatic issues. I visited Singapore, where we have
three people in our advance screening center over there to work
with Singaporean officials. Many of these ports, when I was at
the port in Cartagena--Many of these ports are also, of course,
privately owned. Unlike many ports here in the United States
that are operated by some level of government, these are
private ports, and so we have to work carefully and closely
with those organizations.
We are in now 40 countries. We have about 800 people
overseas. And that level of working with these counterparts in
the large ports in Germany and other places, Amsterdam, is
particularly helpful. Right now the screening is risk based,
who is the operator, where is this coming from.
I think you are familiar with the fact that we have Trusted
Traders that we have vetted carefully, and we have vetted their
personnel. Many other countries that have asked for our
assistance in developing those same kinds of programs where the
traders themselves, these shippers, I mean, they want safety
and security. They don't want a blemish on their organization
either. And they are working very hard to develop some
programs.
I certainly can't speak for the Secretary on whether or not
he will ask for the waiver, but I can also certainly say that
many of the barriers and the difficulties of 100 percent
scanning that have been testified to by previous Secretaries
still exist today, but progress is being made.
Mr. Price. Well, what I am implying in the way I asked the
question, I believe, is that this may well be a goal that is
not attainable and that there is going to need to be a thorough
reconsideration of the way we do this kind of screening. And
you described, and maybe I am going to ask you now to flesh out
just a little bit what you mean by a risk-based approach, which
has been the operative approach for these intervening years.
What we are looking for, I think, is some indication, some
plan of the future development of that approach or any other
approaches that, together with whatever overseas screening we
are able to do and choose to do, that comprehensively we have a
reliable plan going forward.
And that is what we have repeatedly asked for. It is not
that we are quibbling with these waivers, or at least I am not.
It is a matter of understanding the reason for the waivers, but
at the same time asking, short term and long term, what kind of
larger plan do we have and what might we expect in the future?
Mr. Kerlikowske. So I couldn't agree with you more that the
100 percent scanning would be incredibly difficult. And if
somebody had already come up with the plan and the proposal to
move forward, I think it would have been well presented to
Members of Congress. I think the system that is in place now is
a very good system, and our National Targeting Center for Cargo
is incredibly helpful.
When I think of the risk-based approach, I think, first of
all, who is the shipper. If shippers have subjected themselves
to incredible levels of vetting and scrutiny by the United
States Government about their employees and their processes and
their security, they can be trusted, and they can be trusted
more. There is still verification.
The second part is, when we look at the cargo coming in
through the National Targeting Center, what is the country of
origin, what other countries has the cargo been to or was
passing through, what is the manifest, who is the intended
receiver, and et cetera? And that gives us a huge ability.
These new freighters with 15,000, 16,000, 17,000 20-foot
equivalent containers are pretty amazing. We need to be able to
drill down into that information, and I think we are doing a
better job.
I think America's leadership with other countries on this
has been helpful. I will be with the World Customs
Organization. Next week, I will be in Africa on border security
issues in Kenya and several other countries. They really look
to the United States for policies, programs, training, and
equipment that not only make us safer, it makes their countries
safer.
Mr. Price. I expect my time has expired. Let me just say,
though, that I understand that this is quite far along and it
has been developed in a way that does greatly increase the
security. We have not, though, ever on this subcommittee gotten
the kind of response that we expected and needed to these
requests for you to flesh out the plans going forward.
And to get past this year-to-year waiver business, there
may well have to be waivers into the indefinite future, but
there also needs to be some assurance that we are operating in
a rational and comprehensive fashion so that we have a plan.
And maybe your practice is better than the kind of reports we
have received indicate. I suspect it is in some instances.
But I do urge you to take those requests seriously. I
expect they will be repeated in this year's bill.
Mr. Carter. Thank you, Mr. Price. And a good point.
Mr. Stewart.
AUTOMATED EXPORT SYSTEM: WEAPONS
Mr. Stewart. Commissioner, thank you. I appreciate your
many years of service. One of my favorite things to do is go
back to my district and to ride with some of the law
enforcement and police officers and see what they do. It is
very interesting work, but it is difficult work as well. So
thank you for that.
You should know that I am from the West. I represent Utah.
I grew up ranching. Still have the ranch in my family. I was a
military member. The Second Amendment is something that is
really quite important to me, as it is for millions of
Americans.
I am distressed at times by what I believe is an attempt by
this administration to suppress or to make more difficult
Second Amendment rights for Americans. And I have a question
regarding this, and I would like to begin with this premise:
That you and I would agree that there are sometimes lawful and
practical reasons why an American would want to travel
overseas, travel internationally with a weapon. Could we agree
on that?
Mr. Kerlikowske. Yes.
Mr. Stewart. For example, going on a safari, going to
Canada to hunt, whatever that might be.
In the past, this is relatively simple, and I have done
this. You fill out a form that you are familiar with, a 4457, I
guess, as I recall, and you had to enter the serial number, and
it was relatively easy to do.
But now there is a new protocol which, frankly, makes it
almost impossible for many Americans, without being deceitful,
without being dishonest, because now under the new CBP and ICE,
under the Automated Export System, you have to enter an EIN,
Employer Identification Number, which maybe you have one. I
would be surprised if you do. Some people do, but most don't.
And if you go to the IRS to get an EIN, you have to have a
reason, and one of them isn't because I want to travel to
Africa on a safari. They are all dealing with, ``I am creating
a business, I am hiring an employee,'' something in a business
structure.
Tell me why. This makes no sense at all, why we would have
this new protocol, and it requires people to be dishonest in
order to do something that is legal and lawful.
Mr. Kerlikowske. So the chairman brought this up to me when
I visited with him last Thursday, and then Senator Hoeven asked
me if I would visit with him yesterday on this. Until the
chairman brought this up with me, I actually was unaware of the
new protocol. I was well aware that if you wanted to travel
into Canada and go hunting, you filled out the form, the
Customs and Border Protection officer looked at your
identification, looked at the firearm to see that it matched,
and then you continued on your way.
Mr. Stewart. Could I comment on that quickly?
Mr. Kerlikowske. Sure.
Mr. Stewart. And that is if you are unaware, you need to go
back to your folks and say: Why wasn't I? Because there have
been a lot of people who have been working with your agency for
a long time now trying to raise this issue.
Mr. Kerlikowske. So I think that the part of this about,
one, we have a lot of protocols. We enforce laws for 47
different Federal agencies. Well over 500 laws, including the
Department of State. So I would tell you that I am not aware of
every FDA [Food and Drug Administration] regulation and every
Consumer Product Safety Commission regulation that our people
enforce.
I will tell you that when the chairman brought this up and
I met with Senator Hoeven yesterday, it made no sense to me to
continue down this path. By this afternoon we would be changing
our Web site and our information, and for this interim process
through the State Department, we would be continuing to take
the Form 4457 that you mentioned.
FIREARMS REGISTRY
Mr. Stewart. Great. So glad to hear that. And we will
follow up with you, if we could, to make sure that we have had
relief on this. It is really important to a lot of folks.
The second question I have and I think is ancillary to
this, and that this essentially collects firearm information
and creates, although through a backdoor, a registry of
firearms with their identifying numbers on those.
Do you keep that information, or is that information
destroyed?
Mr. Kerlikowske. I actually don't know about that Form
4457. I think the history had always been that people, whether
they were taking an expensive camera overseas from the United
States or a firearm or something else--The purpose of having
that information is that when you returned Customs would not
say: Well, you must have purchased that gun or that camera or
that something else overseas and now you should be declaring it
or you should be paying a duty on it.
So I understand some of the reasoning behind expensive
pieces of equipment. But I will certainly follow up with your
office on the records and how long they are kept.
Mr. Stewart. Okay. Thank you.
Could we agree that if we as American people wanted to
create a national gun registry, that would be appropriately
done through Congress in conjunction with the Executive? That
is a meaningful decision and that that is a congressional
prerogative?
Mr. Kerlikowske. I would agree that some type of national
gun registry, which I think would be probably incredibly
difficult to ever have, having spent a long time on gun issues,
is something that would go through Congress.
Mr. Stewart. Okay. And thank you for that. And that being
the case, then, you can understand why we would be concerned
that if this information is collected and if it is kept and
stored and available, again, it is essentially a backdoor way
to a gun registry--at least a partial gun registry--and why we
would be concerned about that.
So thank you, Commissioner. Once again, we will follow up
with you on that, and look forward to working with you.
Thank you, Mr. Chairman.
Mr. Carter. Thank you, Mr. Stewart.
By the way, the Commissioner's response was very quick when
we raised this issue with him last week.
Thank you, Commissioner. I appreciate your quick response.
Mr. Kerlikowske. Thank you.
Mr. Carter. Who is next? Mr. Fleischmann.
Mr. Fleischmann. Thank you, Mr. Chairman.
And good morning, Commissioner. I want to thank you for
your outstanding service. I was reading your resume, especially
in the National Drug Control Policy. I appreciate that very
much.
And I want to thank my colleague, Mr. Stewart, for raising
the issue about the gun registry issue. So just so that I can
be abundantly clear with my constituents, as of today we are
getting rid of the EIN and all that other stuff and we are
going back to the way that it was used to be.
Mr. Kerlikowske. So what I would make clear is that by this
afternoon--And some of this of course is on our Web site that
talks about the EIN. And this provision apparently has been in
existence for quite some time. We did not enforce that
particular section.
So, one, we will post the information that we will continue
with the process of using the form that the Congressman
described. But I will be involved in discussions with the
Department of State and others on that provision that requires
this because it needs to be reviewed.
BORDER SECURITY: ILLEGAL ENTRANTS WHO GOT AWAY
Mr. Fleischmann. Thank you. Thank you very much.
Commissioner, I also would like to thank you for the state
of the border briefings your agency has begun providing to this
subcommittee. This has been an effort to keep us updated on
your efforts to secure our border.
One of issues that has come up in these briefings is the
problem of, quote, unquote, got-aways, or persons crossing the
border illegally who are not apprehended or turned back into
Mexico. When we last spoke about this problem, we were not
given any kind of estimate as to the number of people who have
gotten away from the Border Patrol personnel.
Can you please provide us with that information now, as
well as an update on your efforts to reduce that number, sir?
Mr. Kerlikowske. I would certainly tell you that the number
of people who are apprehended is a pretty easy number to
calculate, whether it is at the border or at a checkpoint or
something else. The number of people who actually enter the
country that we could see and we were not able to apprehend is
certainly a bit more difficult when you are looking at that
formula. And then the number of people whom a Border Patrol
agent spots and then sees them turn back. And then there is
always the question of did they turn back and then reenter the
country of Mexico, or did they turn back and then use some
other route to try and get into the country?
The one, I think, particularly helpful part of all of that
is that those numbers and those observations come from the
Border Patrol agents, kind of the boots on the ground. So I
would tell you that we look at a variety of systems to try and
figure out and tell people if a border more secure, which I
think certainly it is more secure than in times past. But it is
a difficult dynamic. And I would be happy to follow up with
some more detail.
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Mr. Kerlikowske. But when I was a police chief, people
would ask: Is Seattle a safe city? And I would say: Well, gee,
how do you you know? Is it a safe city because we have a lot of
police officers, because the crime is lower, because we have
made more arrests? What is your definition of a safe city? I
think I run into the same problem when somebody says: What is a
secure border?
BIOMETRIC ENTRY/EXIT PROGRAM
Mr. Fleischmann. Thank you, sir.
I have got one last question. I would like to inquire about
the status of your work to establish a biometric entry/exit
program to track foreign nationals entering and leaving the
United States, and more importantly, identify individuals who
have overstayed their visas and remain in the country
illegally. This capability is critical to ensuring our Nation's
security.
What progress specifically is being made to develop an
implementation plan for the establishment of this system, and
when can this subcommittee expect to see a report on that
progress, sir?
Mr. Kerlikowske. And I would certainly invite you to visit.
We, along with our Science and Technology part of the
Department of Homeland Security, have a mock airport entryway
that has been built out in Maryland to try and identify what
would be the best biometric.
Now, there are lots of ways to leave this country. You can
walk out of the country, you can drive out, et cetera. So if
you are a foreign national and you are leaving the country
through Canada, Canada provides us that information as that
person enters. So that is helpful.
But the other part is that none of our airports were built
with an infrastructure in mind to have the same type of exit
that we have when you come into the country and go through
customs. So we have to look at what would be a biometric
system.
Airlines say that they would like to have 10 seconds per
passenger in order to board a plane. Finding a technology that
also can operate within that 10-second timeframe is darn hard.
And the last thing we want to do is stack up airlines any more
with people waiting to get on a plane, as I think you have all
experienced.
So we are working closely. The airlines are great partners.
There is a lot of new technology (passive iris scanning, facial
recognition types of things), and I would be happy to show you
some of that technology and try and figure out how we can do
that.
Mr. Fleischmann. Thank you, Commissioner.
Mr. Chairman, I yield back, sir.
Mr. Carter. Mr. Culberson.
BORDER SECURITY: SOUTHERN BORDER CROSSINGS
Mr. Culberson. Thank you, Mr. Chairman.
Commissioner, thank you for your service to the country all
these many years. You have been a dedicated law enforcement
officer, and appreciate all the good work you have done.
In just ballpark estimates, how about people do you
estimate cross the southern border, for example, between San
Diego and Brownsville in a month? Just ballpark.
Mr. Kerlikowske. I couldn't even--I mean, I know our
numbers of apprehensions on the southern border and the number
of people, but the number of people entering the country, we
have about a million people enter in through our ports of entry
per day in this country. We have lots of data and statistics.
Mr. Culberson. Right. But just a kind of ballpark estimate
based on your long experience, what would you estimate, every
30 days, how many people cross?
Mr. Kerlikowske. A lot.
Mr. Culberson. Of those that cross, thinking of them as,
say, out of every 100 that cross, for example, how many, out of
every 100, again, just ballpark estimate based on your long
experience--I have been on this wonderful subcommittee for
years, we have worked together for years on this, I know how
dedicated you are to this, but, again, just to try to get a
handle on it--every 100 that cross, how many do you think that
are actually detected, either visually or in some other way, by
the Border Patrol?
Mr. Kerlikowske. So, I mean, I think that when it comes to
illegal crossings, Pew and others have really worked pretty
hard to determine or to come up with a number of about 11
million people in the country that are here illegally, and that
is over a period of years.
I think that the Border Patrol works pretty hard to measure
what it calls its effectiveness rate in apprehensions. So
rather than try and provide you a number, I would tell you that
that long experience tells me, and having done the Southwest
Border Counternarcotics Strategy and been the author of three
of those during the time that I was at ONDCP [the Office of
National Drug Control Policy], that the technological resources
and the boots on the ground and the eyes in the air along the
southwest border today are far greater than ever before.
And my old friends and colleagues who are sheriffs and
police chiefs in El Paso and San Diego and others, many inland
cities would be quite happy to have the low crime rate that
those cities happen to have.
Mr. Culberson. So out of every 10 that cross, you think the
Border Patrol is detecting 3, 4, 5?
Mr. Kerlikowske. I am really hesitant to give you that
number, but I am also more than willing to have a further
discussion and to bring some of the Border Patrol experts with
me to sit down with you or your staff.
APPREHENSIONS: NUMBERS
Mr. Culberson. Of those that are detected, how many
actually have an encounter with a Border Patrol official?
Mr. Kerlikowske. The illegal apprehensions that a Border
Patrol agent sees and can actually apprehend, they all have a
direct encounter with that agent.
Mr. Culberson. Three out of 10, do you think, have an
interaction of some kind?
Mr. Kerlikowske. If it is any person who is being detained
or been apprehended, unless they escape, and we do have some of
that--unless they escape, they do have a direct encounter with
a Border Patrol agent.
Mr. Culberson. Right.
Mr. Kerlikowske. The numbers of those whom they actually
would see who then disappear back into Mexico, we see those
reports. I see those reports every single day in which there
has been an incursion, which we have apprehended somebody----
Mr. Culberson. Sure.
Mr. Kerlikowske [continuing]. And three others got away.
Mr. Culberson. Yeah. What I am driving at is, if your
agents encounter somebody at the border, they have an
opportunity to either speak to them, touch them, be able to
interact with them, is what I am talking about, 3, 4 out of 10
that cross?
Mr. Kerlikowske. Again, I am hesitant----
Mr. Culberson. Hard to say.
Mr. Kerlikowske [continuing]. Hesitant to give you that.
Mr. Culberson. How many do you think are actually taken
into custody out of every 10 that cross, 3 out of 10?
Mr. Kerlikowske. Again, I would probably defer back to that
first answer of dodging your question.
Mr. Culberson. Okay. Of those that are apprehended, how
many of those that you apprehend are actually taken into
custody?
Mr. Kerlikowske. Every one. If an agent can put his or her
hands on them or take them into custody, they are detained.
They are brought to a Border Patrol station, which actually has
lockup facilities, and then they are eventually transferred to
Immigration and Customs Enforcement. So they do have hands on.
Mr. Culberson. A hundred percent of the individuals that
cross illegally who are actually touched by an agent,
apprehended, are processed and taken down to a facility?
Mr. Kerlikowske. Yes, sir.
BED SPACE
Mr. Culberson. Have you ever had an agent request for bed
space been denied by ICE?
Mr. Kerlikowske. Not that I know of. The working
relationship with Director Saldana and Immigration and Customs
Enforcement is very good. They run the detention facilities,
either themselves or with other personnel. The new detention
facility in Dilley, Texas, I think has bed space for over 2,000
people. And I would know, especially on the unaccompanied
children, in a report that I get twice per week--I would know
if they ran out of bed space and we didn't have some place to
put them. And I haven't heard any complaint at all this year.
Mr. Culberson. So they have been able to handle everybody
you have asked them to take?
Mr. Kerlikowske. They take. Everybody whom we have asked
them to take they take.
NOTICES TO APPEAR
Mr. Culberson. How many individuals that are apprehended by
the officers at the border are given a--what is that form you
sign says: I agree to appear later.
Mr. Kerlikowske. Notice to appear.
Mr. Culberson. Yeah, NOTAMs.
Mr. Kerlikowske. Right. So we have notices to appear for
people. We actually work through Immigration and Customs
Enforcement, ICE, to do the notice to appear. But we work with
them because there are protocols. If somebody has a location
that they are going to be and they can appear, they can be
given that notice to appear. And I don't have that number.
Mr. Culberson. Sure. But, I mean, at the time of the
initial apprehension when the officer picks them up--
Mr. Kerlikowske. They get processed first.
Mr. Culberson. They get processed first.
Mr. Kerlikowske. So you would get brought to the Border
Patrol station. We want all of those biometrics. So we want
those fingerprints, we want that photograph, and we want that
information before a notice to appear would ever be issued.
Mr. Culberson. Okay. And then the individuals that are
given a notice to appear then, you have got folks that are
given a notice to appear, and others, for example, are taken to
be returned to Mexico and other sectors of the border?
Mr. Kerlikowske. They can be returned to another or to be--
--
Mr. Culberson. In other sectors or in that sector?
Mr. Kerlikowske. I think one of the goals has been,
particularly if it is individuals who have been--and we look at
recidivism. Has this person entered the country before and been
apprehended? We want to return them to some part of Mexico that
wasn't the place that they entered into the United States from
so that it is further away, and we believe that that disruption
is helpful.
Mr. Culberson. Okay. I just want to confirm, then, so what
you are saying is that if I go talk to any of the sectors up
and down the border between Brownsville and San Diego, 100
percent of the individuals actually touched by an officer on
the border are taken into custody.
Mr. Kerlikowske. I would tell you----
Mr. Culberson. Processed.
Mr. Kerlikowske [continuing]. That they are processed
because----
Mr. Culberson. Hundred percent.
Mr. Kerlikowske [continuing]. We need and want those
biometrics.
Mr. Culberson. Okay.
Mr. Kerlikowske. Right.
Mr. Culberson. Thank you.
Mr. Kerlikowske. Okay.
Mr. Culberson. Thank you, Mr. Chairman.
FUNDING REQUESTS, PRIORITIZING
Mr. Carter. It is back to me. We are going to try a quick
second round.
Well, we are back to the money, Commissioner. We talked
about this earlier. The 2016 budget request is over $850
million higher than the enacted level, given the limits of the
nondefense discretionary spending imposed by the Budget Control
Act. It is likely that the request will have to be cut and
proposed increases will have to be prioritized. You understand
that. We talked about it earlier.
What part of the $850 million are must-fund items and which
can be delayed? And can you prioritize your funding requests?
Mr. Kerlikowske. So I would tell you that our people, our
personnel. Even though the technology is incredibly important,
funding the personnel whom we have and continuing on, because
it is a labor-intensive business, that is particularly helpful.
The second part is the technology that needs to be improved
upon, particularly at ports of entry, is very important to us.
And I would assure you and certainly assure the committee staff
that as you work through this budget process, we will be happy
to prioritize and give you the information. But people and
technology.
Mr. Carter. That brings up a question we talked about
earlier, the fact that we probably are not going to spend the
money from last year, we are not going to reach that 2,000
number that we estimated. A lot of people tell me they are.
And we talked about how we don't want to build up slush
funds. I asked you how leftover appropriated money might be
spent and you said on technology and the people first, and I
agree with that 100 percent. People are the priority of law
enforcement, period, and technology is important.
When you make a budget request to use that money for other
things, is this committee informed that you are making requests
to spend that money in other ways than people when we bump up
against September?
Mr. Kerlikowske. If the money is within, for instance, the
Border Patrol, and the Border Patrol is going to spend it on
technology that will help in securing the border, I believe
that the committee is provided information. I don't think there
is a permission system because it is within the Border Patrol's
budget. If we wanted to use any of that money to spend on UAS
[unmanned aerial system] or air and marine, that would require
a reprogramming, and the committee would not only be informed,
but the permission would have to be granted.
But, I mean, last year the Border Patrol spent on those
kids about $16 million or $17 million on contracts for food and
transportation and healthcare stuff. In turn, they purchased,
the Border Patrol purchased better technology. And then we know
that the money going forward to hire and screen and pay those
polygraph examiners, because we are going to get to the goal of
having all of these people onboard. We have got great
applicants. We have got a lot of young people. We have got a
lot of veterans. I can assure you that I will get them onboard.
Mr. Carter. As you can see, in the good times we don't have
to pinch pennies. But right now with the system we are
operating under, we have intelligent discussions about this.
They go on forever. But the reality is, you have to play under
the rules you are given. That is the way the game has to be
played.
A concern that I have more and more is we don't want to
wake up and find that we are double paying for things. You need
technology, you have a technology column and you have a people
column. I don't see any objection to when you are bumping up
against deadlines you fund the technology needs.
But if we are trying to fund both, as an intelligent
committee getting an idea of our resources, then information
provided to us as to how that money would be spent seems to be
a good thing.
Mr. Kerlikowske. Yes, sir.
PRECLEARANCE: NEW LOCATIONS
Mr. Carter. Maybe that is asking too much, but I would hope
it is not. I would like to know, as you make those changes,
where our money is going so we can better plan for the next
year, when we have to do this kind of prioritizing. Hopefully,
life will get better sometime.
Second question, something we have some new information on.
We have some preclearance operations, the one we put in
initially at Abu Dhabi, and we signed an upgraded agreement,
recently, with Canada.
Can you discuss the Department's current negotiations with
interested foreign airports and the timeframe for new
preclearance operation locations? How does the Department plan
to pay for construction and staffing of new locations? Will
there be cost-sharing agreements with foreign entities? And do
you expect the U.S. airports to lose CBP officers, staffing, to
new preclearance locations? And, finally, how is the newly
signed agreement with Canada different from the previous?
Mr. Kerlikowske. So Secretary Johnson has made the
preclearance issue, because we work in conjunction also with
TSA [Transportation Security Administration], an important
issue. Certainly from a security standpoint, I think already in
Abu Dhabi with a year into this, there have been literally
hundreds of people whom we have recommended to the airline that
they be denied boarding, because if they did arrive in the
United States, they would not be considered admissible.
From a security standpoint, having people never get on that
airplane who shouldn't come here is a good thing. From the
airline standpoint, they see it as a good thing too because
they don't have to turn around and fill that seat with somebody
going back that they are required to do.
We have had letters of interest from over 25 airports
around the world that believe that preclearance would be
something that they would like to discuss further. That number
is being prioritized downward to those that have the
infrastructure, those that are most interested, and where it
could be most helpful to the United States.
So the preclearance issue I think is really a great step
forward on security. It is also a great step forward that when
people land at Dulles or JFK, they don't get in line. They
don't clog up the Customs line. They just pick up their bag and
go.
The last thing, and you are aware of this too from the
public-private partnerships and the work we are doing with
Southwest Airlines and others. Those countries in which we have
preclearance agreements pay 85 percent of the salary and
benefits of our people who are there. So whether it is in Abu
Dhabi or Ireland or Aruba, et cetera--not bad places, I guess,
to work--they are being paid. So we don't supplant anybody.
This is over and above.
Mr. Carter. Out of curiosity, I would be interested in that
list of people that have applied. Because, one of the questions
that came up from the carriers were when we made an agreement
with Abu Dhabi there weren't a lot of U.S. Carriers flying to
Abu Dhabi. My guess was that we would quickly hear from
European ports and others that would say: Put us on that list,
we are interested.
Mr. Kerlikowske. And you will also quickly hear, and I am
sure many staff have, from the airlines, the large United
States airlines, that the places we are discussing with all
have American flag carriers.
Mr. Carter. And that was the big issue. Thank you.
Ms. Roybal-Allard.
BORDER SECURITY: DEFINITION
Ms. Roybal-Allard. Before I ask my question, I want to make
two points. One is that the cost of purchasing technology, it
doesn't end there. We also have to factor in the maintenance
cost for that technology that is purchased, which I understand,
particularly if it is older technology that we get from DOD, is
often very, very costly.
The other point I would like to clarify is with regards to
the unaccompanied Mexican children. My question had to do with
whether or not CBP is following the requirements of U.S. law to
determine when these children should be returned. My colleague
Henry Cuellar mentioned the fact that we often work with the
Mexican consulate in returning these children, and I just want
to point out that I think that is wonderful, but it is not a
requirement of the law. It is something that is voluntary.
The question I have goes back to something that I mentioned
during my opening statement, and it has to do with the
definition of border security. In the simplest possible terms,
and with the understanding that the border can be dynamic, can
you describe the realistic end state capability that you
envisioned for border security and how long you expect that it
will take to achieve it?
Mr. Kerlikowske. One, I would tell you that going down to
the border and spending a lot of time there, it is very helpful
to get the feedback from trusted friends and colleagues whom I
have worked with in law enforcement across that entire
southwest border. So whether it was the former chief in
Brownsville or whether it is the sheriff in El Paso or others,
they give me a very realistic viewpoint of border security.
On top of that, we have lots and lots of technology and
lots of metrics that the Border Patrol uses to look at what
would be a secure border. A border that has lower risk? A
border in which we use that technology, for instance, to take a
look at where people are crossing?
I mean, as you well know, there are some very rugged parts
of that border. And, actually, when we look to see if there are
footprints or some attempt at tire tracks or discarded clothing
or any of those kinds of things, and you realize that if you
look at it day after day after day after day and you don't see
any attempt or any information about somebody crossing, that
gives the Border Patrol the opportunity to put their resources
where it is more useful.
I think the general feeling from ranchers and others is
that places like San Diego, El Paso, et cetera, that the
resources that are there from the Border Patrol have made a
significant difference. The concern is in some of the more
rural parts, and that is where the technology is, and the
fencing, the fencing being put only in certain locations. All
of those things.
I would be hesitant to tell you what I see. I see a much
more secure and safe border now as a result of all of these
things, including the support of Congress. But I would be
hesitant to tell you what is going to happen. I mean, when we
saw those kids last summer, people said: You have got a real
border security issue. I didn't see it as a border security
issue. I saw it as a border management issue. I mean, as you
know, they came across and looked for someone in a green
uniform. It wasn't somebody we were chasing through the cane
fields.
CRIMINAL MISCONDUCT ALLEGATIONS
Ms. Roybal-Allard. Last September, Secretary Johnson
delegated to CBP the authority to investigate allegations of
criminal misconduct by CBP personnel because, as you know,
there have been frustrations in the past that such allegations
have not resulted in serious investigations or consequences.
Can you tell us what the status is of transitioning to this
new authority, and how do you think the new authority will
change the way allegations of criminal misconduct are treated?
Mr. Kerlikowske. Well, I think the criminal misconduct
issue has been, as we go back a number of Commissioners, and at
the time that Customs and Border Protection was actually
created--existing investigators, even though they were
experienced and knowledgeable, were transferred to Immigration
and Customs Enforcement. And therefore at first there was
absolutely no or very limited internal affairs. Commissioner
Basham later was able to get more people. But it had been
turned down by other Secretaries.
So when I went to Secretary Johnson and said when I ran a
police department I had internal affairs and I could be held
very directly accountable for the levels of misconduct and
corruption within the Seattle Police Department. Not having
that authority and not having those resources was a significant
concern to me. He agreed with me and authorized, and we have
just now issued certification to, well over 100 internal
affairs investigators to have criminal law enforcement
authority. And we are continuing.
And we are very fortunate to have an advisory panel headed
by Commissioner Bratton at the NYPD [New York City Police
Department] and the former DEA [Drug Enforcement
Administration] Administrator, Karen Tandy, and a number of
others to give us advice on what else we should be doing.
I think we will be moving forward. Certainly the 100-plus
that we have now is not going to be adequate for a workforce of
60,000. And as we work through this budget issue--and I know
that the corruption issue is important to you--as we work
through this budget issue, I would very much like to have some
flexibility to be able the use some of our existing personnel
in Customs and Border Protection and some of our Border Patrol
agents who are knowledgeable, experienced investigators, to be
able to move them into those anticorruption, misconduct
investigating positions.
Ms. Roybal-Allard. Also the fiscal year 2015 House report
directed CBP to provide regular updates on its transition under
this new authority. When can we expect the first of those
updates?
Mr. Kerlikowske. I know that we had committed to, I think,
quarterly updates on how this is progressing, the number of
people whom we are bringing forward, I think. And I have seen a
number of reports that are as close to being ready to release
and to discuss with your staff as possible. So I would love to
give you the particular date that those things are due.
But as I think and I hope that all of you and your staffs
know, that any particular request, particularly when it comes
to--I just can't think of a time in which law enforcement is
under more scrutiny in this country at every level. It is
important that we keep you informed.
BODY-WORN CAMERAS
Ms. Roybal-Allard. Let me just ask one more question, and
that has to do with the findings of the evaluation of body-worn
cameras by the Border Patrol.
Could you just tell us what the current status is of CBP's
evaluation of the body-worn cameras and how the evaluation is
going? And when do you anticipate it to be completed?
Mr. Kerlikowske. So we purchased a number of body-worn
cameras and then took them to New Mexico to the training center
and let the people going through Border Patrol training try
them out and experience them, and then to actually see what
works and what doesn't work.
The second phase that we are in now is to move them to the
field. Unlike a city police department, the environment that
the Border Patrol agents work in is pretty rugged. So whether
it is International Falls in Minnesota or Blaine in Washington
State or Arizona or the Rio Grande Valley, these cameras have
to have a level of technology that can be used in those really
difficult environments. They are being tested in the field
right now in these different locations.
Ms. Roybal-Allard. Okay. Thank you.
Mr. Carter. Thank you, Ms. Roybal-Allard.
Just a quick aside comment on these body cameras, which I
understand why the public is wanting them and looking at them.
But from a standpoint of criminal justice system, it is going
to create a chain of evidence situation that is going to be
extremely expensive, because once that camera turns on, that is
evidence that is available to the defense and the prosecution
as to what happened at the scene of an incident.
The denying of that information to a defense attorney could
probably end up in a reversal of a case. Therefore, that is
going to have to be kept in the same chain of evidence which
all evidence that is accumulated by any officer. If you put a
camera on every police officer, every border patrolman,
everybody that enforces the law in the United States, there is
going to be a gigantic volume film library. Even digitalized,
it is going to be extremely expensive. We are talking trillions
of potential dollars in the United States every year.
I don't think anybody is talking about that, but some of us
that have to sit through that chain of evidence testimony in
the courtroom know that that is going to come down the line. I
think as we think about all this, and I know the good we are
trying to do, under our particular set of criminal laws and how
we operate is going to be a big accumulation of information
that is going to have to be stored someplace. Nobody has been
talking about that, but I meant to mention that to lots of
people because it is going to be very costly to store.
Mr. Culberson.
APPREHENSIONS: PROCESS
Mr. Culberson. You are bringing it up at the right time,
Mr. Chairman. The CJS Subcommittee that I got the privilege of
chairing, the White House has already asked about body cameras.
And we getting requests from, of course, all over the country
for body cameras.
And I asked the White House, if they would, to make the
request in the form of--let state law control, when, where, how
it is used and how the data is stored, and that the Federal
Government will only be responsible for paying for the
equipment itself and not the storage, for the exact problem you
just mentioned, because of the cost. I can't even imagine how
much data and how many servers and how much that cost is going
to be. Just incalculable.
And they agreed to do so, which I appreciate. So you will
shortly be seeing, I imagine, a press release from the White
House saying that they have asked to create a body camera
program that will follow those guidelines that I asked them to
do, and I appreciate that very much, that the Department of
Justice would follow our recommendation.
And that is that, again, the state law controls. So it will
be when you are in a state, district judge or state
authorities. The State legislature, in fact, in Texas right now
is designing standards for when, where, and how those body
cameras are to be used and how the datais going to be handled.
But the Federal money will only go to actually buy the camera
and not the data storage, not the service itself, because
otherwise it would just eat us up.
And it will be in the form of a pilot program. But state
law will control when it comes to those state officers.
Now, of course, Federal agents, obviously, that will be
under Federal, that will be our responsibility at the Federal
level. But as tight as money is, that is going to eat us up,
the cost of those servers and the data storage and who gets
access.
But if I could very quickly, Commissioner, to follow up on
the questions I asked earlier--and I thank you for the time,
Mr. Chairman--in my experience, I know in the judge's
experience, I am not aware that 100 percent of the people
intercepted by Border Patrol agents are processed. I am looking
forward to going down to the border and confirming that now you
have changed that.
So 100 percent of the people stopped by the Border Patrol,
touched by an officer, are taken down to be processed. If that
is the case, then, those 100 percent that are taken down to be
processed, when they are processed, what happens to them, out
of every 10?
Mr. Kerlikowske. So they are processed as far as the
biometrics. So fingerprints, photographs----
Mr. Culberson. Hundred percent of them are fingerprinted.
Ten-printed.
Mr. Kerlikowske. Yeah. They are ten-printed. When they get
apprehended and placed into custody and brought to that Border
Patrol station----
Mr. Culberson. Okay.
Mr. Kerlikowske [continuing]. All of those biometrics. So
that history, any identification, debriefing. We want to know
who was the smuggler involved. I mean, sometimes they are more
than willing to tell us. How did you get into the country?
Those kinds of questions are asked, along with that biometric,
facial, et cetera.
Then the decision is made as to whether or not they will be
given that notice to appear, working in conjunction with ICE,
or whether they will be detained or whether they will be sent
back home.
Mr. Culberson. And out of every 10, what percentage, 3 out
of 10 sent back, 4 out of 10 returned?
Mr. Kerlikowske. They go to Immigration and Customs
Enforcement after that. Immigration and Customs Enforcement
would be the party that would provide that information.
Mr. Culberson. No, I mean, just out of curiosity, at a
ballpark figure.
Mr. Kerlikowske. Right.
Mr. Culberson. I am not asking you for hard and fast, but
just based on your own experience and interaction with the
officers and the sector chiefs, as you were just discussing, 3
out of 10, 4 out of 10 are sent back in another sector?
Mr. Kerlikowske. When we return them back to Mexico, as we
have discussed--When we return them back to Mexico, we attempt
to turn them back at some place other than the place where they
crossed.
Mr. Culberson. Right. What percentage are returned?
Mr. Kerlikowske. And I don't know that percentage.
Mr. Culberson. Okay.
Mr. Kerlikowske. I don't.
Mr. Culberson. What percentage are sent to ICE?
Mr. Kerlikowske. We work with ICE, whether it is through a
notice to appear or whether it is to be remanded to custody at
an ICE detention facility. So ICE is the keeper of the
detention facility after we have process them. So that is what
happens.
Mr. Culberson. I appreciate your dilemma. You are a
professional. You have served this country very, very well for
many, many years. I understand your dilemma.
It is just something we have each got to personally bird
dog, Mr. Chairman, down on the border.
Mr. Kerlikowske. Thanks.
Mr. Carter. You through?
Mr. Culberson. Yeah. Very frustrating.
Mr. Carter. Mr. Price.
PRECLEARANCE: SECURITY ASPECTS
Mr. Price. Thank you, Mr. Chairman.
Commissioner, the chairman raised a number of questions I
intended to raise about the preclearance operations for
passengers at overseas airports.
Let me just ask you, though, to the extent you can in an
unclassified session, reflect on the security aspects of this.
The most obvious measurement is the one you hinted at, the
number of people apprehended who wouldn't be admissible. Is
that a factor at other airports besides Abu Dhabi? To what
extent has that been an experience more widely? Of course, the
other preclearance points are in very diverse areas. And what
else would you say about the security aspect of this?
Mr. Kerlikowske. We have had preclearance in Canada for
many, many years, and in other places. Those countries--I need
to make sure, because I received this note--I need to make
sure, they don't pay 85 percent of the salary and benefits. It
is only the new ones coming online, for example, Abu Dhabi. And
any new preclearance agreement they would continue to pay.
So I think that the dual security issue that is most
helpful about preclearance is, one, there is a TSA
representative also at that location. And so that person
getting ready to board that flight goes through a TSA-like
screening or analogous screening to what they would do if they
were boarding a flight in the United States.
The second thing is, then they go through the customs
system in the United States even though they are overseas. That
information is run against a variety of databases that would
lead to us making a determination as to whether or not we
should tell that airline that if that person was to arrive in
the United States, they would not be deemed admissible. The
airline then has to make a decision, of course, as to whether
or not to board them.
I think that that is an incredibly effective screening. It
is pushing the borders out.
Mr. Price. And it also relieves the enforcement and
probably the congestion burden at the U.S. end to the extent
these problems are caught early and don't become a problem then
at our border.
Mr. Kerlikowske. And when the person arrives, of course,
they pick up their luggage and go, just as if they were on a
domestic airline.
You know, the biggest complaint lately is when the people
are waiting. They have already cleared customs, but they are
waiting too long to get their baggage. But that is an airline
issue.
SEQUESTRATION CONTINGENCY PLANNING
Mr. Price. Let me ask you to reflect on the sequestration
experience and the ways we might avoid repeating that.
We are dealing in Appropriations subcommittees, all of
them, with a degree of uncertainty this year as to what our
ultimate allocation levels are going to be. We are initially,
unfortunately, constrained to mark up to sequestration levels.
That affects this subcommittee less than some others, given the
allocations approved by the committee yesterday. But,
nonetheless, it is constraining. And then we can hope for a
budget agreement that prevents sequestration coming into
effect.
So it is uncertain at what level you might have to deal
with this, at what point and to what degree you might have to
deal with this. But I know it was a problem before for CBP with
planning for more than $700 million in reductions, reducing
travel, training expenses, facilities upkeep, and so on,
anticipating furloughs. So we hope to avoid this.
On the other hand, we are still talking about funding
levels that are keyed to the unfortunate realities of the
Budget Control Act and the fact that as a sign of the failure
to address the real drivers of the deficit, namely tax
expenditures and mandatory spending, as a result of that
failure we are dealing with repeated reductions in appropriated
spending and the reality of sequestration one way or another.
Either we encounter the direct reality or we bake it into our
appropriations numbers.
Anyway, I wonder if you could reflect on that and what kind
of preparations, contingency planning it requires you to
undertake at this point.
Mr. Kerlikowske. When I came into this job, I certainly--
and during the confirmation process--I knew the issues around
security pretty well. Of course, you know that we are the
second-largest revenue collector for the United States
government after the IRS [Internal Revenue Service], and we
have this huge economic footprint for trade and travel.
Repeatedly, all of the groups that have talked to me from the
private sector said: The one thing that we really need from CBP
is consistency and predictability.
And of course we need that when it comes to a budget also.
Some of our budget folks are sitting in the back. The amount of
time and effort that is spent in preparing directives and
memorandums and contingency planning for whether or not we will
have a shutdown to whether or not we are going to have adequate
resources is a huge amount of time, and I think that that
creates some difficulties for us.
You know, I have lived, being a police chief, with city
councils and mayors, and this is the budget; this is how you
need to work within the chief financial constraints of that
particular city. But it is that lack of predictability and
understanding that, one, costs us a lot of time and planning;
and, two, makes our relationship with the people that drive the
economy of this Nation, the private-sector businesses, it makes
our relationship a bit more difficult.
We have a federally advised committee, a federally approved
advisory committee, some of the largest companies in the United
States. And I meet with them four times per year, and I will
have breakfast with them tomorrow. So traders, shippers,
importers, exporters, on and on and on. These are important
issues to them, and I know they are important issues to
certainly the members of this subcommittee.
Mr. Price. Thank you.
Thank you, Mr. Chairman.
Mr. Carter. Well, we are about to the last hour. I know
that Lucille has one additional question she will ask, and I
will recognize her for it.
COUNTER-NETWORK OPERATIONS
Ms. Roybal-Allard. As I mentioned earlier, I was able to
visit CBP's National Targeting Center a few weeks ago where I
had a very good briefing with the Deputy Commissioner and the
NTC staff. And I just want you to know that I was very, very
impressed by what I saw and by NTC's capability to manage risk
in both the passenger and the cargo environments.
Related to the NTC, we provided $4.5 million in the fiscal
year 2015 bill to help CBP establish a counter-network
operations capability. Understanding that there may be limits
as to how much you can say in an open hearing, what can you
tell us about how CBP is using these funds? And also with
regards to the fiscal year 2016 budget request for $14.7
million for NTC's counter-network capability, how would these
additional funds be used to further develop counter-network
operations?
Mr. Kerlikowske. The feedback from our people at the
targeting center is that they were unbelievably appreciative of
your visit and your willingness to learn and understand what
they were doing. And the targeting center for passengers and
cargo has been in existence for awhile, but we really didn't
have that comprehensive look at the use of a targeting center
with multiple agencies to go after smuggling networks. So we
can arrest the same 15- or 16-year-old 18 or 20 or more times
for smuggling human beings across the border in Mexico, but the
key is not to go after that 16-year-old who is doing it. The
key is to go after that network.
And so whether it is people like, well, General McChrystal
and Lieutenant General Flynn when they determined in order to
break a network, you have to counter a network; all of this is
based upon then technology and information. So being able to
transmit information to our Federal counterparts and not have
to do it on a phone call, but rather to do it, one,
instantaneously and through a pipe, those are the kinds of
things that that money is being spent on.
There are also some really good private-sector
organizations that have been dealing with this and have been
giving us some of this information. All of this I think really
will go to support the Secretary's Southern Border and
Approaches campaign, which is to knit together the Coast Guard,
ICE, and CBP to go after the networks and to break the backs of
these smuggling chains.
MIGRANT DEATHS: REDUCING AND PREVENTING
Ms. Roybal-Allard. Thank you.
Also the fiscal year 2015 report emphasized the importance
of reducing and preventing the deaths of migrants crossing the
southwest border in remote and inhospitable areas.
Have advancements in situational awareness in the
geospatial intelligence areas of the border also improved your
ability to detect those in distress in order to more quickly
provide assistance? And is the Border Patrol working with civil
society organizations to help reduce migrant deaths?
Mr. Kerlikowske. I have been at a number of those meetings
with the Border Patrol and those nongovernmental organizations
[NGOs] that provide the beacons or the alerts. I have met with
a number and actually got to recognize and appreciate the work
that our Border Patrol rescue people do, BORSTAR [Border
Patrol's Search, Trauma, and Rescue]. They are tremendously
helpful, the number of rescues and people. There are not more
than 4 or 5 hours that go by that I don't get some message on a
BlackBerry about the work that they are doing. And I meet
regularly with these nongovernmental organizations.
Crossing that border is incredibly dangerous. We have to
get that message out repeatedly in a variety of ways. But
people are still going to come to this country the same way and
for the same reasons that lots of other people want to come to
the country: Safety and security and economics and education
opportunities for their children. And so they are going to make
that dangerous journey. There shouldn't be a death penalty
involved in attempting to make that journey, and the Border
Patrol agents and the NGOs and the people whom I know and I
have worked with are just as committed to saving life as to us
enforcing the law.
Ms. Roybal-Allard. Okay. Thank you.
Mr. Kerlikowske. Thank you.
UNITY OF EFFORT
Mr. Carter. We have run out of time, but the Unity of
Effort that Secretary Johnson proposed in 2014, is something I
had a conversation with him about early on when he came
onboard, and I support it wholeheartedly. I think it is a great
use of resources. And I am assuming that CBP fits right in the
middle of that package.
Mr. Kerlikowske. That joint task force between Texas and
California is headed by Robert Harris from the Border Patrol.
Mr. Carter. Cutting through all these other questions as
you look forward on this stuff, because I think it is going to
be a good utilization of resources, I have always wondered why
you only have limited resources? When you have a surge coming
and you really need more planes, if there is a Coast Guard
station right down the road, why can't they send you some folks
up there to help you? We are all part of one Department. And,
so, I am very supportive of this.
As you look down the road and then move along, what other
spending issues might be coming up, when working with joint
task forces, that come to your mind. Share that information
with us, because we are going to be looking down the road at
this joint task force work that is going to happen. I am sure
there is going to be some costs involved. Some of them will be
shared between the agencies, but some of it we will have to
come up with. And so we would like to have your ideas because
you are an important part of our decisionmaking.
That is all. Thank you very much. This has been a very good
hearing, and we have enjoyed being with you. We will adjourn
this one and get ready for the next one.
Mr. Kerlikowske. Thank you, Chairman.
Mr. Carter. Thank you.
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Thursday, April 23, 2015.
FEDERAL EMERGENCY MANAGEMENT AGENCY
WITNESS
HON. W. CRAIG FUGATE, ADMINISTRATOR, FEDERAL EMERGENCY MANAGEMENT
AGENCY
Mr. Carter. All right. We are a little late getting
started, but we kind of ran over a little early. We will try to
move along a little faster. I call this hearing to order.
Welcome, Administrator Fugate, to talk to us today to discuss
the fiscal year 2016 FEMA budget requests, and, Administrator,
thank you for being here. And thank you for visiting with me
the other day. I appreciate that, and looking forward to
hearing from you.
FEMA has, as you know, a very important mission. You
support our citizens and first responders in their greatest
time of need. You build capabilities in order to prepare for,
protect against, respond to, and recover from a wide variety of
threats and hazards.
Since 1979, FEMA has had a single vision: A Nation
prepared. Administrator, you do that extremely well. We
appreciate that.
In 2014, FEMA responded to 45 major disaster declarations.
This number is down from 62 in 2013. The high water mark was 99
in 2011. However, there is also a significant amount of
recovery and mitigation work that continues from post
disasters, including Hurricane Sandy.
Your fiscal year 2016 budget request for $390 million above
the fiscal year 2015, despite large unspent balances. $340
million of requested increases is for the disaster relief fund.
I look forward to discussing whether the increase is
appropriate given the recent decrease in major disasters and
the substantial carryover balance from previous years.
Your budget request also includes significant increases
related to climate change initiatives such as a Climate
Resilience Task Force and requiring climate change to be
considered a developing pre-disaster mitigation plans. In a
shrinking budget environment, I would like to hear more about
how these initiatives meet the FEMA mission.
With respect to first responder grant funding, your fiscal
year 2016 budget includes a request to fund a consolidated
grant program which is not authorized. And this is the fourth
consecutive year you have proposed this grant program, a
proposal that has continually been denied by the Congress.
Also your funding request for grants is, once again, $300
million less than the amount appropriated in fiscal year 2015.
I look forward to hearing more about why the new grant
program is needed, and why the requested funding levels are
appropriate.
Before I end, I would like to extend my condolences to the
FEMA family for the untimely death of Deputy U.S. Fire
Administrator Glenn Gaines. Chief Gaines dedicated his career
to the mission of fire safety and rescue. We are proud of his
contributions at both the Federal and the local level.
Administrator, your written statement has been placed in
the record, and we will ask you to summarize that in about a 5-
minute period of time, but first I would like to recognize Ms.
Roybal-Allard, our distinguished ranking member, for her
opening remarks.
[The information follows:]
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Ms. Roybal-Allard. Good morning, Administrator. We
appreciate your joining us this morning to discuss FEMA's
proposed budget for fiscal year 2016.
FEMA's disaster response performance under your leadership
continues to earn plaudits around the country. On many levels
the agency has become more efficient, professional, and
effective under your watch.
There are still areas of concern, however, including recent
problems with the National Flood Insurance Program. It appears
that fraudulent damage assessments led to significant
underpayments to many homeowners following Hurricane Sandy. And
while FEMA's improper payment rate has been significantly
reduced since Hurricane Katrina, we still hear concerns about
individuals who receive debt letters from FEMA months or years
later.
The agency is requesting $11.2 billion, including $6.7
billion for major disasters under the Budget Control Act cap
adjustment. Excluding this major disaster funding, the request
totals $4.5 billion, $115.1 million or 2.6 percent above the
current year level. Despite the overall increase, I was
disappointed to again see a proposed $224 million reduction in
State and local discretionary grants, or a 17.6 percent. The
cut is actually $288 million, or 19 percent, when considering
discretionary State and local grants and training grants. The
cut to grant funding is once again paired with a proposal to
consolidate the State and local grants into a single national
preparedness grant program. But it isn't yet clear to me that
stakeholders' concerns with this program have been addressed.
Once again, the budget proposes a cut to the Emergency Food
and Shelter Program, and transferring it to the Department of
Housing and Urban Development. I was glad to see that the
budget proposes a significant increase for the pre-disaster
mitigation program as well as a major increase for flood
mapping.
Given the difficult funding environment that we face, I
hope we can still find a way to provide increases for both of
these valuable programs, and I look forward to a good
discussion this morning.
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Mr. Carter. All right. Administrator, we will recognize you
for 5 minutes.
Opening Statement: Administrator Fugate
Mr. Fugate. Thank you, Mr. Chairman. I appreciate you
recognizing Glenn Gaines. Glenn was a firefighter's
firefighter. I was fortunate enough to attend his funeral. His
home county, where he was fire chief laid him to rest with
honors. So I appreciate that and that recognition.
I also want to thank the chairman and the ranking member
and staff for the difficult part of budgets. Our job at the
administration within the resources we have is to make
recommendations to you in our budget. You have the unenviable
task of then trying to appropriate funds on the basis of all of
the conflicting priorities that you face. That process, though,
is the regular order of how it is supposed to work. And when we
have a budget that you have done that in and the President
signs into law, we have the stability to execute our mission.
And, again, we will present, you will appropriate, and we
will execute. And in that regular order, the taxpayer is best
served. That is something I think, again, I want to thank you
for each of the years that you have been chairman and going all
the way back to Congressman Price when he was chair, the work
that you do to try to put together a budget and meet all of the
different competing needs.
And then the last part I wanted to talk about was in our
mission, one of the things I heard early on was, you know, you
guys have a lot of programs. How is this all tied together?
What are you getting with this money? How are you
demonstrating? Where are you getting your efficiencies? And we
did not have a good story to tell. And we have been working on
that. And so we looked at our strategic plan. And what we try
to do now is, most strategic plans I think sometimes are what
we call a shelf document. We wrote it. It is submitted. They
passed it. And then you can't find anything else that you will
see referenced in that strategic plan.
We took a different approach. We are not going to write a
shelf document. We wrote what we thought is our mission. We
looked at being survivor centric. And this gets to some of the
challenges I am seeing in flood insurance. It wasn't survivor
centric. We are making those changes.
We have to go where disasters are. Just because it works in
Washington, D.C., does not mean it is going to work out in a
mudslide in Oso, West Virginia--or in Washington State--or down
in California with our drought or up in New Jersey when we are
dealing with Sandy. Things have to work where the disasters
occur and the people are.
You have to build your program around the worst-case
scenario, the catastrophic disasters. We saw what happened with
Katrina when you try to scale up. It didn't work. And disasters
do not come one at a time, as 2010 and 2011 showed us. We were
dealing with multiple disasters across the country. So you have
to build systems and build capability around those types of
events. Not what you are used to doing or the way you used to
do it.
You have got to build resilience into it. We are spending a
lot of money paying for losses that, quite honestly, I ask the
question: Why was that not insured? Why was it not insurable?
Why are we rebuilding it time and time again? And why is the
taxpayer seeming to be the insurer of last resort, yet nothing
is being done to reduce those losses in the future?
Then finally, probably one of the huge challenges that we
face that we are working on is internally as a crisis agency,
we tended to deal with our day-to-day management as by crisis
only. We never built the foundations to run an organization
that was built around catastrophic disaster response. And this
goes all the way back to hiring. If you are not hiring the
workforce to respond to catastrophic disasters, you are just
not going to be successful. If your IT [information technology]
systems aren't secure and resilient, they are not going to be
there when you need them. We are still having to use
spreadsheets to put together data from collection across
various grant platforms that don't talk to each other.
So we have to work on the foundation of FEMA, modernize
that, while reducing costs. And one of our examples is in the
austere budget we are working in, do I need nine office
buildings in the D.C. region? And the answer is no. We have
consolidated down--we are down--going down to three. We will
eventually get down to two. Pending any moves to St. Elizabeth,
we have significantly reduced our footprint because we would
much rather have our staff and our equipment to do our jobs
versus having offices with doors for everybody.
So we are taking those steps to move there, but everything
comes back to, Are we building, as a Nation, the capability to
manage and respond to catastrophic disasters and leveraging
resources at local, State, Federal level, private sector,
volunteers, and NGO [non-governmental organization], and
finally the public? Because although we use the term ``first
responder'' a lot to talk about the people with lights and
sirens, I have been to a lot of your States. I have been to a
lot of disasters. The first responder that I usually see is a
neighbor helping a neighbor, and we have to recognize that the
better prepared our communities are, the better our response
will be, the fewer lives we will lose, and the quicker we will
move into recovery.
So, Mr. Chairman, I am ready for your questions.
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DISASTER REQUIREMENTS FUNDING
Mr. Carter. Well, very good. That is a good summation and a
big picture.
Administrator, your budget requests $7.3 billion to fund
all known disaster requirements, including funding for new
events. Is it sufficient funding to address Hurricane Sandy
needs as well as other ongoing disaster requirements, including
projections for expected future disasters? I note that you
carried over almost $7 billion from fiscal year 2014 to 2015 to
include over $2 billion in base discretionary funds.
Why do you continue to ask for new appropriations when you
are carrying over significant funds from prior years? I think
that the balance in the DRF as of the first of this month is
$10.5 billion.
Mr. Fugate. Mr. Chairman, on the basis of the outstanding
work that is still to be done in Sandy and going all the way
back to Katrina, we are basing the request on the amount of
work that we are anticipating can get done. There are variables
there that as State and locals go through this process, their
timelines will drive when we are able to make those awards and
obligate those dollars. So as we continue to move forward, this
is based upon what we know are projects that are in the system,
projects that we know are coming online, as well as maintaining
the capability to deal with disasters outside of the known
world.
Part of this too is also ensuring that we maintain a
balance within the DRF, and that--Mr. Chairman, I want to
explain this, because I think when we talk about the balances
of the DRF, it is not just the disasters that have happened. It
is what could happen. And one of the things we learned after
2011 is if we don't maintain balances there for large systems,
we force Congress into going into supplemental funding
discussions oftentimes without a lot of the information about a
disaster. By maintaining a balance, and we have been working
with a balance of about $1 billion, and we have some
justification behind that, behind what it took to respond to
Sandy and what it could to respond to a large hurricane or
other event, it gives us the ability not to turn off previous
disaster work, which we have had to do before. It allows us to
respond to the immediacy and the immediate lifesaving needs and
individual assistance needs, and it gives Congress time to
deliberate a supplemental package if required once the facts
become known.
We saw early in the floods in Colorado that with this
balance, we were able to meet the needs without a supplemental,
although early on people thought it would require a
supplemental. As the facts bore out, you had fully funded us.
It had anticipated events of that size. We did not have to
disrupt any other work going on in previous disasters.
So again, Mr. Chairman, I will work with you and your staff
because this is a moving target. And, again, I don't want to
build large balances there that I don't justify, but I also
want to maintain a reserve in that balance so that if we do
face the next large-scale disaster, I am not having to come to
you for a supplemental before we have all the information or
potentially shut down recovery work going in previous
disasters. But as to what that balance should be, how much we
should be carrying over, I will work with you on that, but I
just want to make sure that as we do that, we keep in mind that
I am trying to also ensure that as a fiscal steward, I am not
placing you in the situation of looking at a supplemental early
into a disaster because I am running out of money, and we don't
have all the information to make the best determination of how
much we may need to manage that event.
HURRICANE KATRINA PROJECTS
Mr. Carter. Just out of curiosity, Katrina was over 10
years ago. Wasn't it?
Mr. Fugate. Yes, sir.
Mr. Carter. Do we still have projects we need to finish
following the Katrina disaster?
Mr. Fugate. Mr. Chairman, we still have projects we have
not finalized. I have been working with the mayor of New
Orleans, which has several of these large outstanding projects,
and he and I are in agreement that by June, if our staffs have
not hammered out the final agreements on that, he and I will
personally engage to get this resolved, and we are both of the
mind that this has taken far too long. And this is one of the
things that you helped us with the Sandy Recovery Improvement
Act. You gave us tools to hopefully head off some of these
open-ended obligations that never seem to get resolved,
particularly with Katrina at 100 percent. It has given us new
challenges as to trying to get to what is eligible versus what
else may be there that is getting, you know, looked at and
trying to separate out 10 years later what was actually caused
by Katrina and what wasn't so we fund what we have need to
fund.
Mr. Carter. That seems to be a bottomless pit of money. I
would like to see a grand total of how much we have spent on
Katrina, but I bet it is a figure that will curl your hair.
Mr. Fugate. From FEMA's side, Mr. Chairman, we will prepare
that, and I have a--I think a--what the boundary is for how
much more, but until I actually have final projects, I cannot
say for certainty what that final number is going to be. But
one of our largest projects, again, we are working with the
city--it is not even really a city project. It is a water and
sewer board project of trying to get to the final settlement on
that so we are not, you know, next year still talking about,
well, how much more will we be paying on Katrina? We will know
how much we are going to owe. It will be obligated. It may take
them several more years to draw all that down, but we will know
what that bill is.
[The information follows:]
Representative Carter. I would like to see a grand total of how
much we have spent on Katrina.
RESPONSE. As of April 30, 2015, FEMA has obligated $42.6B for
emergency and major declarations related to Hurricane Katrina.
WILDFIRES
Mr. Carter. Well, you know, I live in hurricane alley and
tornado alley, and, you know, we are all for getting help. But
that sure seems like a long time.
Let's talk a little bit about wildfires because this is
something we have a lot of in our State. Not in the big woods,
but out on the plains where they go 100 miles an hour and burn
up the whole panhandle.
Address what FEMA can and can't do under existing
authorities, and where is the line between Federal and State
responsibilities for wildfires, firefighting equipment, and
whether it is on Federal lands or on private lands.
Mr. Fugate. Well, because of the economy acts on Federal
lands, the authorized and appropriated agency is the U.S.
Forest Service. If it is on State lands or private lands or
individual landowners or municipal or government property, that
really comes down to the State. And one of the two programs
that we have--or actually the major divisions--is a program
called the Fire Management Grant Program, which is authorized
in the Stafford Act using DRF funds to support a State when
firefighting costs exceed their annualized routine cost.
Basically it is designed to deal with extraordinary wildfire
seasons. And it has provisions to pay for various aspects of
that, including staging, pre-staging equipment, the response
cost itself, and some of the other agencies that may be
required.
The other program would be a major Presidential disaster
declaration. Primarily, when we get into large impacts to
either individual assistance because of the number of homes
destroyed that weren't insured, or because of damages to
uninsured local or State property. But the--one requires the
President to approve, and that is the declaration for a major
disaster. The fire management grants were given that authority
to make those determinations in conjunction with a principal
adviser who is usually a forest service retiree that can assist
in that. But it is based upon the State's impact. States--
usually their State Forestry Commission or Division of Forestry
manage this. And it is based upon if it has exceeded, or is
exceeding their budget--what they normally do. We treat it
similar to snow where you have routine recurring fire expenses
when you have extraordinary cost, and you have events where you
have loss--significant loss of property or the potential for
that, then the fire management grants are awarded and then it
is a 75 percent cost share of the eligible cost.
Mr. Carter. Okay. Thank you.
Ms. Roybal-Allard.
DISASTER DECLARATION PROCESS
Ms. Roybal-Allard. Administrator Fugate, FEMA's current
process for making recommendations to the President for major
disaster declarations may not always consider all the relevant
factors, including localized impacts. Both the fiscal year 2015
House and Senate reports ask FEMA to review its disaster
declaration process and consider revising its criteria to more
effectively evaluate the need for Federal assistance.
Do you agree that improvements are needed in FEMA's
disaster declaration process? And if so, can you give us an
idea about the kind of changes FEMA is considering?
Mr. Fugate. Well, given my interaction with various Members
of Congress, I can tell you there are those that say I declare
too many disasters and those that say I don't declare enough.
And as a wise man once said, all disasters are local. So
California, Illinois, Florida, other States, New York, they
have large populations but also have small rural communities.
Oftentimes they find themselves at a disadvantage, because, in
many cases, people think disasters locally that are significant
should warrant a Presidential declaration, but when taken in
light of the State, State capabilities and State resources, we
oftentimes determine it did not reach the threshold. And I
guess this is the challenge of communication. Disasters are not
based upon the localized impacts. They are based upon the
ability of the State to manage those impacts. And when it
exceeds that capability, that is where you look at the Stafford
Act supporting it.
You do look at some of the trauma at local levels, but most
of the time this is really about the cost of rebuilding. It is
about the uninsured losses. And so as we looked at this on one
hand, I am also being told I declare too many disasters. So we
are looking at these factors. We are looking at more clarity in
that to give States a better idea what local factors we do look
at. We do look at trauma. We do look at disadvantaged
populations. But in taking in light against the size of a State
and the State resources, it is, again, a challenge. And I know
there has been several attempts to look at more rural areas of
large population states. Well, could we not do something
differently there? Again, we will work with Congress, but as we
see the Stafford Act, it is really based upon a Governor's
request and the State's capability, and what a State could do
in those situations with the resources they have before we go
to the Stafford Act.
HAZARD MITIGATION GRANTS
Ms. Roybal-Allard. Fire management grants tend to be
relatively small. And one awarded last week to the California
Department of Forestry and Fire Protection earlier this week
was just over $1 million. But they are extremely important to
wildfire-prone areas like California that regularly have
wildfires, such as the one that we experienced last week. This
is of even greater concern, especially for California, during
these times of drought.
We included a provision in the fiscal year 2015 bill that
authorized FEMA to provide hazard mitigation grants to the
recipients of fire management assistance grants. Given that the
fiscal year 2015 bill was enacted less than 2 months ago, can
you comment on how FEMA plans to implement this authority? And
will there be limitations or expectations related to how States
will use these hazard mitigation funds?
Mr. Fugate. Traditionally hazard mitigation funds have only
been made available in a major disaster declaration that the
President has authorized. So part of our challenge is going to
be the fact that we are now including hazard mitigation outside
of our Presidential disaster declaration and what are the
ramifications of that.
Once we have clear direction on that, I think as far as
administering what would be eligible, generally if we were in
this situation, we make hazard mitigation dollars available to
the Governor to disburse within the program, not even tied to
the hazards that caused it. Governors sometimes, because they
may have had an event but they have other things they want to
get to, have used their mitigation dollars--an example, they
may have floods, but they used the mitigation dollars to build
safe rooms for tornadoes.
So we give the States a lot of flexibility. We also allow
the Governor to determine where they are going to designate
those hazard mitigation dollars, if it is just for the counties
declared, if it is statewide. And within the program, I don't
think the issue of administering the grants is going to be
getting to the fact that we have not provided hazard mitigation
grant dollars outside of a major Presidential--we have never
provided them for fire management grants. We don't provide them
for the emergency declarations, which are also declared by the
President.
So this may increase the threshold and oversight required
to get fire management grants in the future if it is determined
that a--adding mitigation will treat this more as a--as an
event that requires the Presidential approval versus what we
can approve on our own.
EMERGENCY FOOD AND SHELTER PROGRAM
Ms. Roybal-Allard. Okay. The budget, again, proposes to
reduce funding for the Emergency Food and Shelter Program by
$20 million, or 16.7 percent. And, again, it proposes
transferring the funds and administrative responsibility for
the program to the Department of Housing and Urban Development.
We included language in the fiscal year 2015 statement
directing FEMA to develop both a plan for outreach to
stakeholders, and a transition plan prior to reproposing the
transfer of the program. Congress was, of course, late in
getting the fiscal year 2015 funding to you, but I hope that
you can still respond to my question regarding the statement
language.
First, can you remind us of the basic rationale for moving
the Emergency Food and Shelter Program over to HUD, and then
what kind of stakeholder outreach has been conducted? And do
you feel confident stakeholders, particularly the Emergency
Food and Shelter board, understand and are supportive of
transferring the program?
Mr. Fugate. Well, the reason why is straightforward.
Although the word is emergency, this program is for homeless
shelters and for food banks. Although we work with them in
disasters, it is not a core mission of FEMA. And so I have read
numerous reports from Congress and the General Accounting
Office that says agencies should avoid duplication of programs
that should be somewhere else that are better equipped or have
that as their core mission. So this is not saying that food
banks and shelters aren't important. We think they are. That is
why we recommend a transfer versus an elimination.
We have been doing outreach. Quite honestly, it is somewhat
flattering and disconcerting that a lot of the groups would
prefer to work with us. So I think there--it is who you know
versus what may happen in the future. But we think that HUD is
the appropriate agency. We have been working with HUD. I will
not tell you that everybody is in agreement on this, but we
have been doing outreach--you know, doing the outreach. We have
been talking to people. We have been explaining why we want to
do this. Because, again, it is not our core mission. We think
it is an important function. And we do work with these groups
in disasters.
But if you go back to why they were placed in FEMA, it is
more of an appropriations decision. And we think that, you
know, now that we know more about what the capabilities are,
what the program does, we think HUD is a better home for it
long term, closer to HUD's mission, groups they work with
through other parts of the grant programs.
So it is not a shirking of responsibility. And I am sure
there are some folks that because they work with FEMA a lot
would prefer it to stay with FEMA. I will, of course, do what
the Congress directs us to do with the appropriation.
Ms. Roybal-Allard. Okay. And just very quickly, is there a
plan in place for transitioning the program, and will it
continue to exist as a distinct program with this current
program structure?
Mr. Fugate. As I understand it, we are in discussions with
HUD. I would have to have staff get back to you. Last note I
saw was it was in their counsel's office. But we have continued
to work on this pending the decision from Congress where this
program is and to what level it is funded. But I will have
staff respond back to the details of where we are at in those
discussions.
[The information follows:]
Representative Roybal-Allard. Is there a plan in place for
transitioning the program with this current program structure?
RESPONSE. FEMA and HUD have jointly developed a draft transition
plan, and outreach strategy for engaging local stakeholders, in support
of the proposed transfer of the Emergency Food and Shelter Program
(EFSP) to HUD. HUD leadership is presently reviewing the transition
plan and FEMA and HUD look forward to briefing the House and Senate
appropriators when the plan is finalized. FEMA is keeping the National
Board apprised at the board's monthly meetings of all progress and
developments concerning the proposed transfer. FEMA and HUD leadership
continue to meet on elements required to successfully transfer the
program.
A separate working session, which includes representation from FEMA
and HUD, is being planned by the National Board by the end of June to
discuss the proposed transfer in FY16 and to review and analyze the
McKinney-Vento Act in terms of what authority may be needed to
permanently transfer the program for all out-years.
Mr. Carter. Mr. Frelinghuysen.
URBAN SEARCH AND RESCUE PROGRAM
Mr. Frelinghuysen. Thank you, Mr. Chairman.
Mr. Fugate, you have a well-deserved reputation for
evenhandedness. Thank you. And from time to time, I have
witnessed you fending off a lot of political action. And may I
say you have always done it in a very professional way. I just
wanted to thank you.
A burr under my saddle for quite a number of years is
something called New Jersey Task Force One. This is an urban
search and rescue team that was first--first non-New York group
to be on the site of that incredible disaster of September 11,
2001. I have repeatedly written, and certainly have since I
know that Secretary Johnson is one of my constituents, but I
have repeatedly written him and you and urged the committee to
designate that very professional team that has been at it for a
long time as one of your--as one of your teams, and I certainly
want to renew that plea today that those--that that team
continues to do a remarkable job.
And I note in the study that FEMA recently conducted a
exercise up in the New York/New Jersey area that related to
tanker cars on trains, and we have chemical alley up there, all
sorts of things that could be highly explosive, in the hands of
terrorists could be extremely dangerous to people in my region.
And I just would like to renew that plea because it is not as
if they aren't trained. And I am not sure--if you care to
respond, I would be happy to hear your comments.
Mr. Fugate. Well, because you have told me that I am
oftentimes not political and pretty straightforward, it is
really a funding issue. That team receives its funding probably
at the local level and with some of the Homeland Security
grants that come through this committee. If we made them a
Federal team, it will come out of the existing Federal dollars
for the urban search and rescue teams, and we would dilute
that. It has really more to do with the fact that we look at
those Federal--the teams we look as Federal as we do fund a lot
of their capabilities. We know there are a lot of other teams
out there that have similar capabilities that are funded with
the State and Homeland Security grants.
So it really would be as we, you know, would consider if
you added this team, would we see additional funds go into the
urban search and rescue program for that, or would we transfer
it out of the urban security funds, or how would we do that? So
this is less about, no, they are a team. We would utilize them
and have; through mutual aid from the Governors, these teams
are utilized. But it really becomes a funding issue. We are
capped at how many teams we have on the basis of. If we started
adding one more team, I am afraid that we will have a lot more
requests, and then it would come back to the appropriations
staff to work with us of how would we pay for additional
teams----
NATIONAL FLOOD INSURANCE PROGRAM
Mr. Frelinghuysen. Respectfully, a lot has happened since
2001. And there were very few teams back then. And you have
added substantial--your predecessors have added substantial
teams to the overall national network. And I do think sometimes
recognize somebody who has actually been doing the job earlier
on perhaps would have been better. But there has been a
substantial number of teams that have been added.
Let me just focus and let me thank FEMA for some remarkable
things you did in the wake of Hurricane Sandy.
Of course, there was a lot of consternation down here about
the cost. A lot of it related to, you know, the Katrina
experience, but on behalf of the people of New York, New
Jersey, and Connecticut, and certainly the chairman and his
predecessor and the committee staff, we are awfully grateful
for all of the things that have been done.
Could you focus just for a brief minute on some of the
litigation issues that relate to--that sort of give, not you,
but the program a bad name and a lot of the policyholders--
hopefully people take a look at what they subscribe to, but
could you talk a little bit about that as part of the overall
FEMA experience?
Mr. Fugate. Yeah. In running a flood insurance company, I
am afraid that what I have discovered is we were running a
program that put more emphasis at times on protecting the fund
than in servicing the policies. Almost all of the biases that I
have seen, and I think has led to a lot of these lawsuits, has
been the tendency to look at damages and put more risk on
overpayment than--I mean, putting more emphasis on not making
an overpayment because we would require the money back.
The issue is whatever is owed, we pay. So this is one of
the challenges. Why weren't these policies being fully
serviced, because it is not a factor to us? If it is eligible
damages, as the insurance policy, we would pay. But we think
the bias was because they would have to recoup any money they
overpaid, we intend to design a program that put more emphasis
on not making overpayments. And I think that has resulted in
setting up situations that result in the litigation we are
dealing with.
So my direction was pretty straightforward as soon as I
became aware of this. If we owe money, pay it. If we think it
is fraud, refer that for further investigation with the IG
[inspector general] or Justice. If we are going into the
litigation, and litigation costs are going to be, you know,
such that it is going to be more than what we are talking,
because these policies are capped at $250,000, then I said,
move to settle.
If there is no fraud there and we have honest
disagreements, and sometimes, looking at these policies, we
have set ourselves up in looking at what we are trying to
exclude as eligible damages and what isn't, it is very
difficult to get to those answers. So if we owe money, pay.
That is, I think, the hard thing for me to understand: why
we got in this situation. But I think it is because we weren't
putting our customer at the same level we were the fund, and
this goes back to being what we say survivor-centric. If we are
going to sell a policy, we need to service that policy and we
need to treat the policyholders in the same weight to their
eligibility as we do to making sure we are eliminating any
fraudulent claims.
But I think we spent too much time focusing on not making
overpayments than we were making sure we fully serviced those
policies.
Mr. Frelinghuysen. So the shift has been made to that
degree?
Thank you, Mr. Chairman.
Mr. Fugate. The shift has been made. The leadership has
been made. We are changing that program.
Mr. Frelinghuysen. Thank you.
Mr. Carter. They just sent a notice that our next vote is
about 5 minutes after 11:00, so we are going to try to get
through this round anyway. So we are going to hold it to 5
minutes.
Mr. Price.
LESSONS LEARNED
Mr. Price. Thank you, Mr. Chairman.
Welcome, Administrator. I was just observing you are
approaching your 6-year anniversary as the administrator of
FEMA. And you have heard many plaudits this morning on your
service, and I would like to add to those. You inherited an
agency that was in great need of attention, in great need of
reform, and by all accounts, you have had a lot of success in
shaping up the agency after a very difficult period.
I have appreciated personally your cooperation with this
committee and with our emergency planners and responders in
North Carolina. So I want to maybe ask a bigger-picture
question, the sort of thing you were getting at in your opening
statement, maybe elaborate that a bit. Your time as
administrator, what are some of the lessons we might derive
from that?
What kind of problems and challenges have required the most
of your time and energy? To what extent is the job done in
terms of shaping up the Agency's various components and
functions? What are the greatest challenges remaining? And to
give a little specificity to this, maybe you could relate this
to the strategic plan and the strategic planning process. To
whatever extent you can, give your answer in relation to the
objectives that you referred to in your opening statement, the
objectives that the agency has set out for itself.
Mr. Fugate. Well, with the management reforms and building
that foundation, I think, we are moving in the right direction,
but we are not going to be there quickly. And we are asking for
some resources in grants modernization, other things to get
there. But we have got to do a better job. We can't spend all
our time fixing problems we are creating because we can't even
hire people.
Our IT systems are out of date and not secure; our
procurement process was broken. We brought in new leaders. We
have been making changes, but we have also made and held all of
the senior leadership at FEMA accountable for management
changes; there is an ownership issue here. You just can't tell
your chief human capital officer to fix something if the rest
of the department always works around them or games the system.
Resiliency, this is probably one that I have the greatest
potential to annoy the most people on, and that is, whether you
think climate change is real or not. I have a bigger question
to ask: Why are we paying out billions and billions of dollars
on what anybody in the private sector would have insurance on?
I am not talking about debris, roads, or things like that,
but let's talk about fire stations, community centers, water
treatment plants, schools, a whole host of public
infrastructure that we only pay when there is no insurance. We
are paying a lot of money, because in many cases, insurance
isn't available. It is not affordable.
And we have oftentimes used mitigation dollars to rebuild,
but we always look at narrow slices of data in the last 100
years, and we still find it is not insurable. And so I think,
again, as we look at the disaster criteria, I want to look at
the threshold for disasters.
Right now, we go back to the first dollars if you hit the
threshold for the President-declared disaster. Tell me any
other insurance policy that goes back to your first dollar. You
always have a deductible. There is no deductible in this. It is
a 75/25 percent cost share. So we spend a lot of time on small
disasters that, quite honestly, are traumatic for local
communities, but much of the cost borne with that, outside of
the emergency response cost is what the uninsured losses are.
So we are trying to change that and go, if we rebuild
something--and we are doing this in New Jersey and New York--we
are trying to look at mitigation not just because of the past
data we have, but actually put enough into that to say, let's
build it to where it is insurable, and affordable, and have the
private sector manage future risk. We have not done a good job
in this Nation of setting the paying point for risk and making
sure that, as we make investments, we are not transferring risk
to the taxpayer that exceeds what we benefit from that.
I am not saying this is a zero-sum game. There will be some
things that make sense for the public to absorb that risk. But
in other cases, you look at how many times we go out to a
structure that we are rebuilding or spending significant sums
on that was not insured, and the rules say it should be insured
after we have done that; yet, we go back later and the answer
that we are getting is it was not affordable, it was not
available, and you pay again.
As a good steward, I think, yeah, that we should pay for
the first time. We should rebuild it, but then we should be
more stern and hold the accountability to ensure that risk
going forward, but that means we have to build it in a way that
it is insurable, that the insurance companies can make it
available, or it is going to price local governments out of
being able to do their basic function.
Mr. Price. Thank you.
Thank you, Mr. Chairman.
Mr. Carter. Dr. Harris.
FEDERAL FLOOD RISK MANAGEMENT STANDARD
Mr. Harris. Thank you very much. And, you know, before I
start, I do want to thank FEMA for obviously the extensive help
they have in my district, the eastern shore of Maryland, which
you are from Florida, driving through the lower shore of
Maryland looks like you are driving through the lower part of
Florida.
And that brings up one of the questions I have, which is
this new Federal Flood Risk Management Standard that was
promulgated by executive order in January. It is a little
troubling because the--you know, our bill last year
specifically said that none of the funds available in this act
or any other act should be used to implement, you know, a
Federal Flood Risk Management standard until the administration
is soliciting considered inputs from governments, mayors, and
other stakeholders.
As you know, that was passed late in the year. And on
January 30, the executive order was issued saying, ``The views
of governors, mayors, and other stakeholders were solicited and
considered as efforts were made to establish a new flood risk
reduction standard.'' Were you involved in that, in the
development of that standard for the executive order?
Mr. Fugate. Yes, from the standpoint of the mitigation,
senior leadership group that is part of the national response
framework.
Mr. Harris. And what were the mechanisms by which you
solicited? Because I am still trying to find a mayor in my
district whose input was solicited. And believe me, they have a
vested interest in what the FFRMS looks like because so much of
my district has now had an expanded definition because of the
BFE plus 2 or plus 3 definition. So how was that input
solicited?
Mr. Fugate. I would not be able to tell you, sir, because I
was involved--my staff was basically involved in what the
standard would be, not the outreach at that point. We have been
heavily involved since the executive order of doing outreach--
--
Mr. Harris. Let me just interrupt you for a second. From
the time the bill was passed until January 30, was your staff
paid to develop the FFRMS despite Congress' pretty clear
language that says no funds shall be spent without soliciting
input. So did your staff develop this without soliciting input?
It is a simple----
Mr. Fugate. I understand it is a simple question. Our staff
were working on the standard itself. There are other agencies
involved. We have been charged by the administration to go out
before this rule is finally implemented and do outreach, which
we have been doing across the Nation.
Mr. Harris. However, the executive order actually sets up a
timeline for implementation, so one could interpret the
executive order itself as implementation of the FFRMS, because
it specifically says FEMA, for instance, before implementation
is supposed to go and do this solicitation. So it sets up kind
of a circular argument. I mean, the executive order itself sets
up implementation. One could view that as implementation of the
new FFRMS. So this is simple because, you know, the
Antideficiency Act is pretty clear. When Congress says no funds
shall be used, it really means no funds shall be used.
And this administration has kind of a record on this. You
know, you are just one in a series of people to come before
this committee to address an issue of whether the
administration is adhering to the will of Congress spelled out
clearly in an appropriations bill.
So I am just going to ask it one more time. To your
knowledge, did anyone in FEMA spend money--and I will take it a
little bit further because right now----
Mr. Fugate. Sir, the answer is yes, we were committing
staff time at the direction of the administration to work on
this as part of our assigned duties.
Mr. Harris. Are your employees aware that this applies to
everyone not just--the Antideficiency Act applies to every
employee of the Federal Government, not just leadership? You
know, excuse can't be, well, my boss told me to, if you know
about this. Because my understanding is the section 404 is
covered, section 203 is covered, the flood mitigation
assistance program would be covered by changes to the FFRMS, so
I am going to ask you an additional question.
Are any of your employees in those sections, who handle
those sections, at this point in time, spending any money to
implement the new standard? That is, any planning, writing any
projected plans of what the effect would be on these programs?
Because this is the essence of what we do in an appropriation
limitation riders to say you can't spend a dime.
Are your employees in those programs, section 404, 203, and
the Flood Mitigation Assistance Program--because that is what
CRS has said, those are the FEMA programs that would come under
this new mitigation rule--are they spending money in any way,
shape, or form to develop a response to this new executive
order?
Mr. Fugate. Specifically, I cannot say yes or no. I would
have to go back to research that. I can tell you we are using
our funds to do the outreach and listening sessions across the
country. As far as what staff had taken steps on any
implementation, I would have to respectfully get back to you on
that, by those programs that you have listed.
[The information follows:]
Representative Harris: Are your employees in those programs,
section 404, 203, and the Flood Mitigation Assistance Program--because
that is what CRS has said, those are the FEMA programs that would come
under this new mitigation rule--are they spending money in any way,
shape, or form to develop a response to this new executive order?
RESPONSE: Consistent with the requirements set forth in section 749
of the Consolidate and Further Continuing Appropriations Act, 2015,
FEMA has solicited and is currently considering input received from
stakeholders during the public comment period for the revised
guidelines pertaining to the Federal Flood Risk Management Standard.
Mr. Harris. Well, I would appreciate that, that you get
back to me, because, again, section 749 in H.R. 83 is very,
very clear. It says no funds. So please get back to me if, in
fact, FEMA is, you know, coming before this committee to ask
for funds for next year and actually disregarding the intent of
the Appropriations Committee in this year's appropriations.
Thank you, Mr. Chairman. I yield back.
Mr. Carter. Mr. Cuellar.
GRANTS: PERFORMANCE MEASURES
Mr. Cuellar. Mr. Chairman, thank you so much.
Administrator Fugate, I appreciate you bringing your
training from the State level, and I think you have been doing
a good job, and I appreciate the good work that you and your
folks have been doing.
Members, one thing I would like to point out is, back in
2010, we passed a law that called for more strategic planning
on how we spend our dollars and make sure that we have
performance measures to look at that. And, in fact, if you look
at the Administrator's testimony, you will see a break down
where it has strategy No. 1, strategy No. 2 following that law,
so I appreciate the work that you are all doing.
My question is, for many years, I had--if we give grant
money to local communities, how do you measure the work that--
and we have been talking about this, I guess, almost for 5, 6
years. But how do you measure the work that if you give money
to somebody that they are following the measures or the
performance that we should instead of just giving money out?
Because we have given out billions of dollars over the years.
So what do we get for that bang of a dollar when we give them
to local communities?
Mr. Fugate. Thirteen lives saved just in one program. That
has happened this year through some of the fire grants that
were given to the Red Cross to place smoke detectors in
targeted areas using big data that we derived from our National
Fire Reporting Information System. It targeted our communities
that had underrepresentation, did not have fire and smoke
detectors, and have an unfortunately higher loss of life. We
tied that together, and Red Cross reported back there has been
13 saved since we have done that.
We use our fire or our threat hazard reduction reviews as
they report up, as well as our State preparedness reports, and
we can now show where States have built capacity in areas that
they identify were their shortfalls and are now shifting those
resources to the other areas of the 31 areas of categories that
we look at to build resiliency and preparedness across the
Nation.
We have, in a lot of cases, anecdotal cases where we can
show you because of investments in funds. One example, the
mudslide in Oso, Washington State, where the people that were
saved were saved with a helicopter that was equipped with a
hoist. And rescue equipment provided through Homeland Security
funds were--in many cases, the only people who survived were
those who were extracted by helicopter, that and the Coast
Guard did the saves. If that capability had not been there, we
would have lost more lives.
So we can go back to both point examples of where those
investments have been involved and responses have changed as
outcomes, as well as showing you the trend lines of how we are
moving and improving preparedness.
We also do this against the threats and hazards, and we do
this in your catastrophic planning as part of our strategic
plan. We know that we will never be a Nation that can fund one
agency to respond to catastrophic disasters. That has got to be
built up with State and local capabilities. The mutual aid, as
the Congressman from New Jersey points out about the urban
search and rescue team, we have to look at these as national
resources.
Whether or not we fund them directly, they are getting
built with these Homeland Security dollars. So it is the
capacity as a Nation, as we build local capabilities that are
shared through mutual aid, in what we do; we are seeing these
outcomes change.
UNACCOMPANIED CHILDREN: REIMBURSEMENT TO LOCAL COMMUNITIES
Mr. Cuellar. Well, I appreciate, because I think you are
one of the few folks that come before our appropriations and
follows that strategy-type of thinking, makes sure that we are
driven on performance. So thank you.
Second thing is, I certainly want to thank the chairman,
the ranking members, and the committee, because we added in
this current homeland appropriation bill that we just passed
just recently, language dealing with the unaccompanied kids,
what we would reimburse poor communities on the border that had
to deal with the kids coming in. There is some language there
that calls for reimbursements to local communities. We have got
to work with the State.
I know the State of Texas--and I am going by memory--has
from 2013, 2014 about $25 million. They haven't been drawn out
but they are saying it is all obligated, which I do question,
because it is 2013, 2014. 2015, I think--or the recent--the
last one that you all just announced, you sent another $22
million. I would ask you to please work with the State of
Texas, my colleagues there, to make sure that they understand
about talking about enforcing the law, that the law does say
that these moneys are to be used for reimbursement purposes for
the communities, the poor communities on the border that have
to deal with thousands of kids coming in.
Mr. Fugate. We will take that work with our grants folks,
and I will work back with your staff to make sure we are
getting the appropriate language when we are talking with our
State partners.
Mr. Cuellar. Yeah. And your folks have been fantastic. They
really have. I just want to make sure that the State of Texas,
when we talk about border security, that it also includes this
reimbursement on that. So thank you, Mr. Administrator, for the
good job that you are doing.
Mr. Carter. Thank you.
Mr. Fleischmann.
EMERGENCY MANAGEMENT PERFORMANCE GRANTS
Mr. Fleischmann. Thank you, Mr. Chairman.
Mr. Administrator, it is good to see you this morning.
Before I begin my questions, I do want to harken back to a time
when I was a freshman Congressman in 2011 and 2012. We had
tornadoes come through east Tennessee, my district; in fact, I
had been in office less than 4 years. And I want to commend and
thank you all at FEMA for the way that you responded. In the
first round of storms that were actually fatalities, and it was
a disaster like nothing I had ever personally experienced. And
FEMA was there and worked hard over the next several months to
reimburse the communities. So thank you. I really appreciate
your-all's efforts at that difficult time.
I wanted to ask you some questions this morning. Your
budget, sir, proposes level funding for the Emergency
Management Performance Grant Program, which is incredibly
popular among States, and has been crucial in my home State of
Tennessee. Your budget also proposes a number of funding
increases, sir, including a re-proposal of a new national
prepared grant program.
Given the current fiscal situations and the many needs
facing your agency, wouldn't it make sense for you to focus
resources on proven efficient programs like EMPG, which employs
a 50/50 cost share structure, and areas of highest need and
risk? And do you have any plans to eliminate the EMPG program
or any other current grant programs in an effort to shift
resources to these newer perhaps unproven programs, sir?
Mr. Fugate. The simple answer to your last question is no.
And probably what makes the Emergency Management Performance
Grants, I think, one of the best bargains for the Federal
taxpayer is, unlike a lot of other grants, there is a 50/50
cost share. So it is a shared responsibility to build
capability at State and local level.
It has been increased by this Congress over time to levels
that it had not been before. And, again, as we were dealing
with sequestration and other budgets, we have been working
hard. And I appreciate the staff here. This has been a grant
that has been shielded against some of the other reductions.
But, again, it is, as you point out, a good value. It has a
cost share match at the State and local level. So it is a
shared responsibility. And we have no intention of recommending
that grant losing its identity or being consolidated.
DISASTER WORKFORCE READINESS: PERFORMANCE MEASURES
Mr. Fleischmann. Thank you.
This past year, you implemented a system to measure the
readiness of your disaster workforce.
Mr. Fugate. Yes, sir.
Mr. Fleischmann. It is very similar to how DOD measures
readiness and capability to deploy. What led you to develop
this process, and how will it change how you train your staff,
equip disaster personnel in the future?
Mr. Fugate. We needed to target the drive, our investments
and justifications of budget. I just couldn't say, well, I need
25,000 people. Well, what kind of people do I need? Who do I
need? Do I really need 25,000? So we went back and did the data
analytics and responded to a large catastrophic disaster, or a
lot of other types of events. You know, we looked at 2011. We
looked at what it took to respond to Katrina, what it took to
respond to Sandy, and said, if you are going to build this, who
do you need, and how many people do you need in each category,
and what training do they need?
So we are now driving this by an events-driven scenario; we
are not just coming up with a number. We are also showing where
we have progress, where we have gaps, and where we need to make
investments both in training, equipment, and recruitment. And
it is based upon the idea that disasters don't come one at a
time, and we have to have the capability to begin that initial
response.
We can always add staff once we are in a response, but we
have to have core staff there to deal with the initial
response, and so this is what this number represents. It
represents being able to respond to a catastrophic event with
associated other activities that will be occurring to ensure
that we can provide that initial response coordination.
And it gives us very specifically, by category, a type of
person and numbers that we need to achieve that. Then it gives
us the measurement to say what progress we are making, and how
much we need to invest to get there so that we can come back,
as the appropriation staffer is saying, what is your
justification? I can show them what the justification is. And,
again, as part of this negotiated process, if I can't defend my
numbers or back them up, I don't deserve the funds.
DISASTER WORKFORCE READINESS: LEVELS
Mr. Fleischmann. Okay, sir. As a follow-up to that
question, then, we are currently at D-3 levels of readiness,
which means you can meet moderate to single significant
disaster staffing needs. When will you reach D-1, and will you
need additional funds to get up to a D-1 level of readiness?
Mr. Fugate. Well, D-1 would be optimized, and I am not sure
that it is both possible, just because of the nature of the
workforce, that we would get and maintain D-1. We will strive
for each category, but what I think is more practical is
getting us across the board to a D-2 category so we have that
overall ability to deal with it.
D-1, it is going to be hard to maintain that, but that is
what we shoot for. But I think more realistically, with the
resources we have and the time frames, our first goal is to
move us into a D-2 category by bringing up enough of those
scores to give us that capability.
Mr. Fleischmann. Thank you.
Mr. Chairman, I will yield back.
Mr. Carter. Mr. Culberson.
FEDERAL FLOOD RISK MANAGEMENT STANDARD
Mr. Culberson. Okay. Thank you.
Mr. Administrator, I appreciate you being here today. I
want to confirm my understanding is that FEMA did not consult
with the governors or mayors; the White House did that
consultation?
Mr. Fugate. I would not be able to speak on the White
House. I know what my staff were working on. My staff were
working on the technical pieces of working what degree of
elevation based upon elevation and how would we calculate that.
Mr. Culberson. And the executive order is, as Dr. Harris
said, does contain the implementation to language. And I also
wanted to make sure to bring this to the subcommittee's
attention, and you in particular, Mr. Chairman, that the way I
read this, Mr. Administrator, that the previous executive order
on the Federal Flood Risk Management standard was that those
areas that are subject to a 1 percent or greater chance of
flooding in any given year, it is essentially a 100-year flood?
Mr. Fugate. Yes.
Mr. Culberson. And as in a case with BlueCross, when--
excuse me, whatever the Medicare reimbursement rate is on a
particular service provided by a doctor, that tends to become
the benchmark by which BlueCross, Aetna, and private insurance
carriers then set their rates for what they are going to cover,
and how much they are going to charge for it.
Similarly, when FEMA does this and says this is what we
believe the area that we are going to classify as under, you
know, the Federal flood risk, that area then becomes subject to
insurance premiums that are set according to your standard, the
building codes, everything else, right?
Mr. Fugate. Yes, sir.
Mr. Culberson. And by this change, what they have done is
gone from 1 percent or greater chance of flooding, you have
changed that to .2 tenths of 1 percent. And is that a 1,000-
year flood or a 500? I think it is 500.
Mr. Fugate. It probably is 500. But the intention here is,
and, as my understanding is, and what we had agreed to in this,
this is only implying to Federal investment.
Mr. Culberson. Well, Federally-funded projects, however
just like I said with Medicare, when Medicaid reimburses at a
particular rate that makes the insurance----
Mr. Fugate. We made a firewall between distant flood
insurance. We are keeping this separate from flood insurance.
We are not changing that.
Mr. Culberson. Right. But----
Mr. Fugate. What we are saying is, if we are going to go
build a critical infrastructure and rebuild it, a lot of times
my cost-benefit analysis would not allow me to get to 2 to 3
feet, even if the locals wanted to, and we have had them flood
out time and time again. Because that 1 percent risk in a
coastal community in a storm surge usually gets wiped out.
So this was focused on where we make investments in
building with Federal dollars, Federal infrastructure or
Federal grants to bring them up to a higher standard. And in
some communities they already had this. In the city of New
Orleans, you have to build 3-feet above that even though your 1
percent risk is below that.
Mr. Culberson. Sure.
Mr. Fugate. They were having to fight Federal agencies to
comply with their own ordinances.
So this focus is, if we are going to spend Federal dollars,
we have got to build for the future. If we only do it 1 foot
above base flood elevation, that is a significant investment.
And if we get hit again, we are coming back for more money. We
are just trying to make an investment that is an incremental
cost increase in Federal dollars on Federal projects and
constructions to not have to come back when it floods the next
time. It is not tied to local ordinances. It is not tied to the
flood insurance. Those maps are tied to a different program.
Mr. Culberson. That may have been your intent, but I have
already met with homebuilders in Houston and they are very
alarmed by this, because it has already had the effect of
having their insurance carriers contact them about driving up
their insurance premiums, that it is going to drive up
insurance premiums for homeowners. I am just telling you this
is a fact.
Mr. Fugate. Because the only company that is writing flood
insurance for most of the country is the Federal Flood
Insurance Program----
Mr. Culberson. This is already happening.
Mr. Fugate [continuing]. We have not made--the notices they
are getting for flood insurance are a different program not
tied to this.
Mr. Culberson. This is already the conversations. These are
already happening right now, on the ground, right now. I can
tell you, the homebuilders are up in arms over there, and you
all are going to be hearing about it all over the country. And
their buildings codes are going to have to--they are already
being told you are going to probably have to change the way in
which you--you may have intended it only apply to Federally-
funded projects, but you are going to have to be
extraordinarily careful.
You have got two problems here: One, the administration
appears to be, Mr. Chairman, in violation of the specific
prohibition, as Dr. Harris pointed out; and then number two,
the way you have designed this is that you have just now--the
homebuilders just sat down with me on this and they are very
alarmed because they are going to have--they said essentially
what this does is put all of Texas south of I-10 and east of I-
35 in the floodplain. And it is going to drive up dramatically
the cost of building, of insurance. Homebuilders are absolutely
apoplectic over this, with good reason. And it doesn't appear
you followed what the appropriations bill and law requires you
to do.
And this is a dramatic change, Mr. Chairman.
And I notice also that it appears to be based on the
climate action plan prepared by the President's National
Security Council, which, of course to me, I wish he would pay
as much attention to ISIS and what is happening in the Middle
East as he has got his national security staff worrying about
climate action. But that, I digress.
But you have got two big problems here, and at least
important, Mr. Chairman, and the subcommittee, that you have
created a lot of problems that you say it may not have been
your intent, but you have created a lot of problems and I think
we are going to have to deal with, Mr. Chairman, to help
alleviate concern and costs among our homebuilders in the
private sector and, frankly, the State of Texas for that
matter.
Thank you, sir.
Mr. Carter. Thank you, Mr. Culberson.
And I am as concerned as Mr. Culberson about this issue. My
folks in my State are very concerned about it.
We have got a vote called. We have made it through a round
of questioning, and now we are going to adjourn this meeting.
Thank you for coming. As always, you do an excellent job of
communicating with this committee. Please continue to do that.
Mr. Fugate. Mr. Chairman, and, again, on the basis of the
concerns raised by several members about the Federal floodplain
management standard, I will have staff prepare briefings, and
we will sit down and have staff meet with members to go over
the concerns.
[The information follows:]
Representative Carter. And I am as concerned as Mr. Culberson about
this issue. My folks in my State are very concerned about it.
Administrator Fugate. Mr. Chairman, and, again, based upon the
concerns raised by several members about the Federal floodplain
management standard, I will have staff prepare briefings, and we will
sit down and have staff meet with members to go over the concerns.
RESPONSE. Deputy Associate Administrator Wright met with HAC staff
and Chairman Carter's staff on April 28, 2015.
I have already got one extension I have built into the
system, so I am trying to make sure we get everybody--
Mr. Carter. Well, floodplains really affect building in our
State. Thank you.
Mr. Fugate. Yes, sir.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
W I T N E S S E S
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Page
Fugate, W. C..................................................... 189
Kerlikowske, R. G................................................ 81
Saldana, S. R.................................................... 1
I N D E X
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Page
U.S. CUSTOMS AND BORDER PROTECTION (CBP)......................... 81
Apprehensions:
Counterterrorism Capabilities................................ 114
Numbers...................................................... 124
Process...................................................... 132
Automated Export System: Weapons................................. 118
Bed Space........................................................ 125
Biometric Entry/Exit Program..................................... 123
Body-Worn Cameras................................................ 131
Border Patrol Agents: Attrition.................................. 101
Border Security:
Definition................................................... 129
Illegal Entrants Who Got Away................................ 120
Southern Border Crossings.................................... 123
Cargo Screening.................................................. 116
Counter-Network Operations....................................... 135
Criminal Misconduct Allegations.................................. 130
Customs and Border Protection Officers: Hiring................... 100
Directives....................................................... 107
Firearms Registry................................................ 119
Funding Requests, Prioritizing................................... 126
Migrant Deaths: Reducing and Preventing.......................... 136
Notices to Appear................................................ 125
Opening Statement: Commissioner Kerlikowske...................... 86
Polygraph Operators.............................................. 100
Preclearance:
New Locations................................................ 128
Security Aspects............................................. 133
Professionalism Campaign and Fences.............................. 109
Sequestration Contingency Planning............................... 134
Sugar Cane....................................................... 108
Terrorist Activities, Fueling.................................... 115
Tunnel Detection Technology....................................108, 115
Unaccompanied Children:
Mexican...................................................... 103
Preparedness................................................. 103
Unity of Effort.................................................. 137
Unmanned Aerial Vehicles......................................... 107
Federal Emergency Management Agency (FEMA)....................... 189
Disaster Declaration Process..................................... 209
Disaster Requirements Funding.................................... 207
Disaster Workforce Readiness:
Levels....................................................... 221
Performance Measures......................................... 221
Emergency Food and Shelter Program............................... 211
Emergency Management Performance Grants.......................... 220
Federal Flood Risk Management Standard.........................216, 222
Grants: Performance Measures..................................... 218
Hazard Mitigation Grants......................................... 210
Hurricane Katrina Projects....................................... 208
Lessions Learned................................................. 214
National Flood Insurance Program................................. 213
Opening Statement: Administrator Fugate.......................... 194
Unaccompanied Children: Reimbursement to Local Communities....... 219
Urban Search and Rescue Program.................................. 212
Wildfires........................................................ 208
[all]