[Senate Hearing 114-884]
[From the U.S. Government Publishing Office]
S. Hrg. 114-884
OVERSIGHT OF U.S. CITIZENSHIP AND
IMMIGRATION SERVICES: ENSURING AGENCY
PRIORITIES COMPLY WITH THE LAW
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION AND
THE NATIONAL INTEREST
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 3, 2015
__________
Serial No. J-114-4
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
47-426 WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont, Ranking
JEFF SESSIONS, Alabama Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
SUBCOMMITTEES ON IMMIGRATION AND THE NATIONAL INTEREST
JEFF SESSIONS, Alabama, Chairman
DAVID VITTER, Louisiana, Deputy CHARLES E. SCHUMER, New York,
Chairman Ranking Member
JEFF SESSIONS, Alabama PATRICK LEAHY, Vermont
DAVID PERDUE, Georgia DIANNE FEINSTEIN, California
CHUCK GRASSLEY, Iowa RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas AMY KLOBUCHAR, Minnesota
MICHAEL S. LEE, Utah AL FRANKEN, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
THOM TILLIS, North Carolina
Alvaro Bedoya, Majority Chief Counsel
Elizabeth Taylor, Minority Chief Counsel
C O N T E N T S
----------
MARCH 3, 2015, 2:44 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 4
WITNESSES
Witness List..................................................... 47
Moore, Joseph, Chief Financial Officer, U.S. Citizenship and
Immigration Services........................................... 6
Written Testimoney........................................... 48
Neufeld, Donald, Associate Director, Service Center Operations
Directorate, U.S. Citizenship and Immigration Services......... 8
Written Testimoney........................................... 48
Renaud, Dan, Associate Director, Field Operations Directorate,
U.S. Citizenship and Immigration Services...................... 10
Written Testimoney........................................... 48
QUESTIONS
Questions submitted to Moore by:
Senator Franken.............................................. 63
Majority..................................................... 64
Senator Sessions............................................. 77
Questions submitted to Neufeld by:
Senator Franken.............................................. 63
Majority..................................................... 64
Senator Sessions............................................. 77
Questions submitted to Renaud by:
Senator Franken.............................................. 63
Majority..................................................... 64
Senator Sessions............................................. 77
ANSWERS
Responses of Moore to questions submitted by:
Senator Sessions............................................. 77
Senator Franken.............................................. 140
Responses of Neufeld to questions submitted by:
Senator Sessions............................................. 77
Senator Franken.............................................. 140
Responses of Renaud to questions submitted by:
Senator Sessions............................................. 77
Senator Franken.............................................. 140
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Prepared Statement by Senator Grassley of Iowa............... 60
Letter from Leon Rodriguez to Chairman Sessions, February 26,
2015....................................................... 303
Submitted by Senator Session's Office:
Interim Report of The President's Task Force on 21st Century
Policing, March 2015....................................... 195
Letter from Senator Charles E. Grassley to Jeh Johnson of the
Department of Homeland Security, February 27, 2015......... 184
U.S. Citizenship and Immigration Services Letter, February
26, 2015................................................... 303
USCIS Responses to Questions in the January 22, 2015 Letter
from Senator Grassley, Senator Johnson and Senator Sessions 185
Submitted by Senator Lee's Office:
Application for Travel Document, Form I-131.................. 163
Congressional Research Service Parole Memorandum, December 5,
2014....................................................... 149
Deferred Action for Childhood Arrivals (DACA) letter,
February 13, 2015.......................................... 147
Department of Homeland Security Draft Memo, February, 26,
2010....................................................... 153
Instructions for Application for Travel Document, Form I-131. 168
The American Spectator--Immigration Doublespeak Article...... 181
Submitted by Senator Cruz's Office:
Chairman Cruz's Letter to Hon. Jeh Johnson, February 24, 2015 143
Leon Rodriguez Letter to Chairman Cruz, February 26, 2015.... 146
OVERSIGHT OF U.S. CITIZENSHIP AND
IMMIGRATION SERVICES: ENSURING AGENCY
PRIORITIES COMPLY WITH THE LAW
----------
TUESDAY, MARCH 3, 2015
United States Senate,
Subcommittees on Immigration and the National Interest
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 2:44 p.m., Room
226, Dirksen Senate Office Building, Hon. Jeff Sessions,
Chairman of the Subcommittee, presiding.
Present: Senators Cornyn, Lee, Cruz, Perdue, Tillis,
Schumer, Klobuchar, Franken, and Blumenthal.
OPENING STATEMENT OF HON. JEFF SESSIONS,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Chairman Sessions. The meeting will come to order. I
apologize. I came in the room there and saw there were three
minutes left on the vote. I had forgotten there was a vote
taken and that delayed me. I am very sorry.
Thank you all for being here. I want everyone to be able to
watch the hearing without obstruction. If people stand up or
block the view of those behind them or speak out of turn, it is
not fair or considerate to others and so officers will remove
those individuals.
Before we begin with opening statements, I want to explain
how we are going to proceed today.
Senator Schumer and I will give opening statements. Then we
will turn to the witnesses for their opening statements.
Following their statements, we will begin with the first round
of questions, in which each Senator will have five minutes.
After the first round, if any Senator wishes to continue with
questions, we will have a second round of questions.
With that, I will turn to my opening statement.
This is our first Subcommittee hearing of this Congress and
I intend that they will be fact-based. Congress and the
American people need to know the truth and to understand what
our laws say, how they are being carried out, why it is
failing, and how it can be fixed.
In this area, details are critical, to my mind. Talking
points without will or proper mechanisms or adequate funding
are mere vapors. They will not have any reality in the real
world. We want to improve this system and make it work in a
better way, work like the American people have a right to
expect it to work.
We have strong and able members of the committee. Our
Ranking Member, Senator Schumer, is able, diligent,
knowledgeable, and a strong advocate and an effective advocate.
We have worked together on things and had some disagreements,
immigration being one of them. I have always admired his skill
and ability and I am confident we will go forward effectively.
Senator Schumer, I would note that I do not expect any
controversial things to happen today and I know you have got
another something you have to do. If you wanted to do your
opening statement before mine, I would yield to that if that
would help you time-wise.
Senator Schumer. I have to be at three.
Chairman Sessions. I would like to thank the witnesses for
testifying today, for their diligent preparation. I appreciate
your taking the time to meet with me last week and answer some
of my questions.
On January 22, the Chairman of the Judiciary Committee,
Senator Grassley, and Chairman of Homeland Security and
Governmental Affairs Committee, Senator Johnson, and I wrote
Mr. Moore requesting, among other things, details of the costs
associated with implementing President Obama's November 2014
Executive Action.
Although the February 5th deadline came and went without
receiving a response, we did get one finally, thank you.
As the title of this hearing suggests, we are here to
conduct oversight of the United States Citizenship and
Immigration Service, CIS, as it is called. This is particularly
important because of the agency's unique funding structure
which allows it to spend the fees it collects without any say
from Congress, unless Congress explicitly legislates to that
effect. Basically CIS has had fees to spend, in some degree, as
they will, which has resulted in the latest little
confrontation.
If the executive branch followed the laws as enacted by
Congress, such a structure would probably be not much cause for
concern. However, President Obama has taken unilateral actions
to eliminate our current immigration laws and replace them with
his own executive amnesty. Contrary to law, the President's
policy grants illegal immigrants work permits, photo IDs,
access to trillions in Medicare and Social Security benefits
over time, up to $35,000 in tax cash credits, tax payments, and
ability to take any job in America.
I understand that the witnesses today cannot speak to the
policy questions behind the President's actions. That is beyond
your control as professional employees of the U.S. Government.
However, if these actions are permitted to stand, USCIS
will be implementing many of those policy changes. It will be
in your bailiwick, and will be spending money to do so.
USCIS has been processing applications for the President's
first Executive Amnesty in 2012. Deferred action for childhood
arrivals, or DACA, as of December 31, 2014, USCIS had approved
more than 95 percent of the people who applied. At one point,
in May 2013, the approval rate was 99.5 percent.
These extraordinarily high approval rates confirm the
claims of USCIS personnel who say the agency has become a
rubber stamp and case workers have no real discretion.
Ken Palinkas, the president of the Services Council, the
union representing 12,000 USCIS officers, said, quote, ``USCIS
adjudications officers are pressured to rubber stamp
applications instead of conducting diligent case review and
investigation,'' closed quote, and that investigations into red
flags, cases with problems, and denials are discouraged and
that, quote, ``USCIS has been turned into an approval
machine.''
Mr. Palinkas further states, quote, ``DHS and USCIS
leadership, political appointees, have intentionally
established an application project for DACA applicants that
bypasses traditional in-person investigative interviews with
trained officers. These practices were put in place to stop
proper screening and enforcement and guarantee that
applications will be rubber stamped for approval, a practice
that virtually guarantees widespread fraud and places public
safety at risk,'' closed quote.
This is a serious concern for us. After 9/11, Congress
required in-person interviews for all visa applications, except
those 14 and younger and older than 79, precisely because the
9/11 Commission felt that national security risks that are
associated with lack of in-person interviews.
Mr. Palinkas was quoted in the Washington Times, stating,
quote, ``I cannot see how you can grant anybody a benefit when
you have not even seen them and they have already broken the
law. It becomes almost comical that this is the way they are
proceeding,'' closed quote.
The President has instructed USCIS to implement far larger
executive amnesty that he estimates will cover up to five
million people.
A February 10 Washington Times article this year says,
quote, ``USCIS expects more than 800,000 applications in just
the first two and a half months, a 70 percent surge compared to
last year's total for the entire agency. Over the first 18
months or so, the agency will process more than four million
pieces of mail related to the larger part of the new amnesty,
according to contracting documents.''
Am I about finished here? Yes.
Senator Schumer. Oh, good. [Laughter.]
Chairman Sessions. I am trying to wrap this up.
Senator Schumer. I see a lot more pages over there.
Chairman Sessions. I can just feel Senator Schumer's
willingness to contribute to this discussion. [Laughter.]
In a budget briefing for staff, USCIS projected 1.9 million
filings in fiscal year 2015 and 1.2 million in 2016. Many
questions remain about how this costly amnesty, which has great
dangers, will be implemented. I hope we can get some of those
answers today.
I would like to emphasize my support for the officers,
agents, personnel of the U.S. Department of Homeland Security.
They have been poorly led, unfortunately. They have the lowest
morale of any group in America, any Federal agency.
I have tried to defend their interests. I have repeatedly
asked why their views have not been properly considered when we
write new laws and the Administration executives amnesty
proposals. They have not been listened to and that is a
mistake.
Once again, I would like to thank the witnesses for joining
us and appreciate your coming here and bringing the experience
and knowledge you have.
Chairman Sessions. Senator Schumer.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you. I really appreciate the
courtesy.
Jeff Sessions and I have disagreed repeatedly over
immigration, but it has not stood in the way of him being, in
the finest sense of the word, a southern gentleman. He always
has been and I very much appreciate that. Now, and I want to
congratulate him on the assumption of the chairmanship, as
well.
I want to thank our witnesses for being here today. We are
lucky to have very seasoned veterans of the agency they serve
before us today. Our witnesses are not policymakers, so we
cannot expect and I hope will not be asked to opine on matters
of policy. They can elucidate the intricate details of how an
agency as large and complicated as USCIS works. I look forward
to their testimony.
I know it is not commonplace for you to be called to
testify before a Congressional Subcommittee and you look at a
little nervous. Do not be. He does not bite. Someone else
here----
Chairman Sessions. Senator Schumer does, but I do not.
[Laughter.]
Senator Schumer. Anyway, but not them. In any case, the
topic, the oversight of USCIS, is important and appropriate
work for the subcommittee to take up.
I apologize, I will not be able to stay here. Prime
Minister Netanyahu is meeting with the House and Senate
leadership and I feel I have to be there.
Chairman Sessions and I may not agree about much when it
comes to immigration, but I feel confident we both believe our
immigration system is broken. There are no two ways about it.
It is a chorus we have repeated for years now and yet still
have been not able to address the major flaws in our system.
We have not done enough to reverse the tide of illegal
immigration and our legal immigration system is not calibrated
in a way that befits our modern economy. We turn away too many
hopeful immigrants who would create jobs in our country or fill
necessary posts in our high tech sector or our agriculture or
low-skilled labor market.
In the last Congress, as everyone here knows, we put
together a bipartisan bill that addresses both our illegal and
legal immigration problems.
As Chairman of the Subcommittee then, I was proud that the
bill passed through this subcommittee, then the Judiciary
Committee and then the full Senate with overwhelming bipartisan
support. I was frustrated to see it fail to even get an
opportunity for a vote in the House, where it surely would have
passed with significant Republican support.
Instead of passing the bipartisan compromise that would
have fixed our immigration system, some of my friends across
the aisle have preferred the status quo, a broken system, and
have been eager to criticize the system at every turn.
That is where we find ourselves today. Right now, as we
speak, USCIS and other agencies in DHS are in the crosshairs.
Perhaps today there is hope because it looks like we are
jerking back from the precipice right before going over.
The House is now voting on funding DHS, including USCIS,
and maybe they will learn from their folly and not do this
again.
What we saw was truly incredible. After the Senate passed a
full clean funding bill that would have finally ended this
governing by crisis, all the House could do is put is right
back where we were with a short stopgap measure. So hopefully
that will end.
The irony is that the very agency tasked with implementing
the executive actions that my colleagues have so obsessed with
would not have shut down anyway. That is the agency we are
discussing today, 96 percent of USCIS workers funded by fees,
not congressional appropriations.
You might ask what about the four percent. The added
twisted irony is that only one of the USCIS programs that would
have shut down is something my colleague and I came to agree
with, eVerify, which stops unscrupulous employers from hiring
undocumented workers and cutting everyone's wages. Two other
agencies that would have shut down are Immigration and Customs
Enforcement and Customs and Border Protection.
Essentially, to make a point about needing more immigration
enforcement, Republicans were willing to shut down immigration
enforcement.
We have a more appropriate venue for this fight--the
courts. That fight has already been taken up. And my friends
who will find problems with the performance of this agency have
an easy solution to that, as well. If you have problems with
the agency and want to make it better, let me make a
suggestion. Work with us on comprehensive immigration reform.
The Senate-passed bill from Congress, in my opinion, would
fix our broken immigration system. It is tough on our border,
tougher than anything I have heard the other side propose. They
say fix the border first. Our bill does that. It did not
matter. It provided an enormous boost to our economy. The CBO
said it would grow our GDP by over three percent. No Republican
tax cut, no Democratic spending bill would grow the economy
that much.
The bill was great for our economy, good for the country,
tough on the border, and certainly not amnesty, by any stretch.
It is supported by an unprecedented coalition of groups across
the entire political spectrum and it is what the American
people demand. It would increase fee-based funding of USCIS and
implement needed reforms to benefit our whole system, like
eliminating employment and family visa backlogs.
My view? The most the productive way we could use our time
here is start to work again on comprehensive immigration
reform. The best thing would be to pass the bipartisan bill,
support from a lot of the Republicans in the last Congress,
might even get more now.
Sadly, the chairman has called this hearing and I know he
will conduct it in a fair way, which I appreciate. I am sorry I
cannot be here, once again.
Thank you, Mr. Chairman.
Chairman Sessions. Thank you.
Would the witnesses please stand and raise your right hand?
[Witnesses are sworn in.]
Chairman Sessions. Thank you. You may be seated. First, we
have Joseph Moore. Mr. Moore is the Chief Financial Officer of
USCIS. This is the Customs and Immigration Service that is a
sister agency to the Border Patrol at the border and the ICE
offices who do interior enforcement, and they process the
applications of so many.
He has been with USCIS since the creation--present at the
creation, you were. As have all of today's witnesses, he has
been CFO since October 2012, but has been in immigration since
1995. Prior to his current position, Mr. Moore served as Chief
of the Office of Performance and Quality and Deputy Budget
Chief. Before joining USCIS, he worked at Immigration and
Naturalization Service at the Immigration Services Division.
Next, we have Mr. Donald Neufeld. He is the Associate
Director of Service Center Operations. He is responsible for
overseeing all activities at the four service centers located
in Texas, California, Nebraska, and Vermont. He served as
Acting Associate Director of Domestic Operations at USCIS and
has directed the California service center. He joined the
service in 1991.
Finally, we have Donald Renaud, Associate Director of the
Field Operations Directorate. He overseas more than 80 field
offices, four regional offices, the National Benefits Center,
the immigration investor program, and served as an immigration
professional since 1998.
Thank you all for being here.
Do you have an opening statement, do each of you? All
right. Please, Mr. Moore, if you can begin.
STATEMENT OF JOSEPH MOORE, CHIEF
FINANCIAL OFFICER, A U.S.
CITIZENSHIP AND IMMIGRATION SERVICES
Mr. Moore. Chairman Sessions, Ranking Member Schumer and
Members of the Subcommittee, my name is Joseph Moore. I am the
senior financial officer of U.S. Citizenship and Immigration
Services and the principal advisor to Director Leon Rodriguez
on all matters concerning the budget and financial management.
USCIS occupies a unique position within the Federal
Government's fiscal structure, as its operations are primarily
dependent upon fee-based revenues collected under three
specific fee accounts. These are the immigration examinations
fee account, the H-1B non-immigration petitioner account, and
the fraud prevention and detection account.
These three fee accounts provided more than $3 billion in
funding for USCIS and comprised approximately 96 percent of the
agency's fiscal year 2014 budget. The balance of USCIS funding
in fiscal year 2014 was provided by congressional
appropriations in the amount of $116 million and was used to
support the eVerify and Citizenship and Integration Grant
programs.
USCIS' three fee accounts were established under different
legislative authorities. This is important to note because the
H-1B and the fraud prevention and detection account fees were
established in statute such that USCIS cannot change these
fees.
Conversely, the immigration examinations fee account was
established by legislation, allowing USCIS to set and adjust
these fees through a notice of public rulemaking. Given the
unique fee-based funding structure supporting USCIS operations
I would like to briefly describe the specific authorities of
these three fee accounts.
First, the primary fee account supporting USCIS operations
is the immigration examinations fee account which Congress
established in 1988 by amending the Immigration and Nationality
Act to add Sections 286(m) and (n). These sections provide that
all adjudication fees collected shall be deposited into the
immigration examinations fee account and remain available until
expended and that such fees may be set at a level that recover
full operating costs, including those costs provided without
charge to asylum and refugee applicants or certain other
immigrants.
The immigration examinations fee account is a no-year
account possessing permanent indefinite appropriation
authority.
Second, the fraud prevention and detection account,
established in 2004 by amending the INA to add Section 286(v),
prescribes that a $500 fee be paid by an employer petitioning
for a beneficiary's initial grant of H-1B or L non-immigrant
classification and that a fee of $150 be paid by an employer
filing a petition on behalf of an H-2B worker.
All fee revenues deposited into the fee account remain
available until expended. The fraud prevention and detection
account is a no-year account possessing permanent indefinite
appropriation authority.
Third, the H-1B non-immigrant petitioner account,
established in 1998 by amendment the INA to add Section 286(s),
prescribes that certain employers who participate in the H-1B
program pay a $1,500 fee or $750 for those petitioners who
employ 25 or fewer full-time employees and that all fee
revenues deposited into the fee account remain available until
expended.
The H-1B non-immigrant petitioner account is a no-year
account possessing permanent indefinite appropriation
authority.
The decision to establish and charge fees for certain
immigration services is deeply routed in U.S. fiscal policy
dating back to at least the enactment of the INA in 1952.
However, the creation of the immigration examinations fee
account in 1988 most visibly and clearly signaled Congress
intent that Immigration and Naturalization Services be funded
by user fees rather than from annual appropriations.
By mandating that immigration services provided by the
Federal Government be administered through a system of specific
user fees, it was explicitly recognized that the provision of
these services were of a particular benefit to the individual
seeking the service above and beyond what is normally provided
to the general public.
Moreover, it was recognized that such user fees would
reduce the burden on the taxpayers by financing that portion of
Federal activity through the collection of user fees.
Since the creation of USCIS in 2003, the agency has relied
upon these fees to finance the majority of its operations. The
funding structure has proven to be a very effective mechanism
for financing USCIS operations that are often subject to
fluctuations in applicant demand. As these demands change, so
too does the fee revenue collected to support agency
operations.
Thank you for this opportunity to testify and I look
forward to receiving your questions.
[The prepared testimony of Mr. Moore appears as a
submission for the record]
Chairman Sessions. Thank you. Mr. Neufeld.
STATEMENT OF DONALD NEUFELD, ASSOCIATE
DIRECTOR, SERVICE CENTER OPERATIONS
DIRECTORATE, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES
Mr. Neufeld. Chairman Sessions, Ranking Member Schumer and
Members of the Subcommittee, my name is Donald Neufeld and I am
the Associate Director for the Service Center Operations
Directorate at U.S. Citizenship and Immigration Services.
Having served under every administration since President
Ronald Reagan, I appreciate and value the role USCIS plays in
protecting the homeland, supporting the economy--our economy
and providing humanitarian relief, and ensuring the orderly and
expeditious flow of legal immigration.
I very much appreciate the opportunity to appear before you
today to testify regarding the important work of the Service
Center Operations Directorate of USCIS. USCIS administers the
world's largest immigration system that includes more than 100
immigrant and non-immigrant visa classifications and more than
200 different forms and applications.
In fiscal year 2014, USCIS adjudicated nearly seven million
petitions and requests, including applications for
naturalization, applications for lawful permanent residence,
immigrant and non-immigrant visas petitions, requests for
humanitarian protection and parole, and requests for deferred
action, among others.
In order to administer the vast majority of benefits under
this system, USCIS maintains 83 field offices and a national
benefits center under its Field Operations Directorate and four
major service centers under its Service Center Operations
Directorate.
USCIS distributes responsibility for processing various
categories of applications and requests among its field offices
and service centers in order to achieve maximum efficiency,
reliability, consistency, and accuracy.
I have been asked to provide an update on USCIS' Service
Center Operations Directorate. The Service Center Operations
Directorate is comprised of a headquarters component in
Washington, DC and four service centers located in Dallas,
Texas, Laguna Niguel, California, Lincoln, Nebraska, and St.
Albans, Vermont.
Our current authorized staffing total is approximately
3,600 Federal employees, with contract support provided by
approximately 1,500 contractors.
The service centers are designed to adjudicate cases that
do not require face-to-face interactions with the public. Our
caseloads are generally high volume and include employment-
based non-immigrant visa petitions, such as H-1Bs, family and
employment-based immigrant visa petitions, employment-based
applications for adjustment of status, and multiple forms of
humanitarian protection, including temporary protected status,
protection under VAWA, and non-immigrant status for victims of
crimes and trafficking.
We also process requests for deferred action under the 2012
policy guidance on deferred action for childhood arrivals and
requests for deferred action related to the VAWA and U non-
immigrant programs.
In fiscal year 2014, service center employees processed a
total of nearly 4 million of these applications, petitions and
requests. As a matter of routine business operations, USCIS
continually monitors and projects workload and staffing levels
and makes resource allocations and decisions that take into
consideration statutory, regulatory and humanitarian factors.
Whenever USCIS receives a sudden or unexpected increase in
workload, we analyze the factors causing the surge and allocate
resources to minimize delays in any program, especially those
with statutory or urgent humanitarian requirements. By making
ongoing resource allocation decisions based on the current
landscape, all USCIS customers are given the attention and
service they deserve.
Recognizing the importance of providing immigration
services that support humanitarian, family reunification and
economic goals, we strive to do our work with the greatest
integrity and efficiency. We rely on USCIS' Fraud Detection and
National Security Directorate to assist us in closely
monitoring fraud trends and to provide training and assistance
to adjudicators in ferreting out fraud.
To recognize and address national security and public
safety threats, we conduct biographic and biometric background
checks and closely coordinate with law enforcement agencies as
appropriate.
We are steadfastly committed to ensure that immigration
benefits are not granted to individuals who pose a threat to
national security or public safety or who seek to defraud the
U.S. immigration system.
In closing, on behalf of USCIS Director Rodriguez and my
colleagues, I thank you, Chairman Sessions, Ranking Member
Schumer and members of the Subcommittee, for your interest in
our service center operations programs and for the opportunity
to share this information with you today.
I will be happy to address any questions or concerns you
may have.
[The prepared testimony of Mr. Neufeld appears as a
submission for the record]
Chairman Sessions. Thank you.
Mr. Renaud.
STATEMENT OF DAN RENAUD, ASSOCIATE
DIRECTOR, FIELD OPERATIONS DIRECTORATE,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Mr. Renaud. Chairman Sessions, Ranking Member Schumer,
Members of the Subcommittee, my name is Daniel Renaud and I am
the Associate Director for the Field Operations Directorate of
United States Citizenship and Immigration Services.
I learned at an early age the importance of public service.
My father retired after 30 years of Federal service and my
mother after almost 20 years. I learned that doing the business
of the government is an honorable profession and one that
improves the lives of every citizen of this country.
Those beliefs have been reinforced on a daily basis over
the past 26 years during my own Federal career, working beside
hundreds of immigration professionals, like the two with me
here today.
I am honored and privileged to lead the Field Operations
Directorate and its team of over 5,000 Federal employees who
are hard at work right now doing their job operating the
largest immigration service in the world, while upholding the
USCIS core values, integrity, respect, ingenuity, and
vigilance.
The dedicated employees in the Field Operations Directorate
focus on two distinct immigration benefits: adjudicating
requests for lawful permanent residence, commonly known as
green cards, and determining who is eligible to become a United
States citizen. The women and men of the Field Operations
Directorate understand and appreciate the significance of the
work we do and its impact on applicants and their families for
generations to come.
These are not benefits we grant lightly. Only after careful
review of eligibility guidelines and completion of full
security and public safety checks will a case be approved.
In a typical year, field operations adjust the status of
over half a million individuals to permanent residents on the
basis of a family relationship to a U.S. citizen or to a
permanent resident.
USCIS officers in the field conduct in-person interviews
with these applicants in 83 offices around the country.
Similarly, individuals seeking citizenship through the
naturalization process must appear in person before a USCIS
officer who conducts an examination of the applicant's case and
all available evidence and background security checks. All
applicants must take an oath of allegiance to the Constitution
and to the laws of the United States in order to obtain
citizenship. Typically, USCIS naturalizes over 700,000 persons
during the course of a year.
In addition to the 26 district and 83 field offices, the
Field Operations Directorate also includes components that
perform specialty functions. The National Benefits Center
located in Lee Summit, Missouri was established in the year
2000 to process cases filed pursuant to the Legal Immigration
Family Equity Act.
Over time, the responsibilities of the NBC have evolved and
the center now performs a number of operations that are
critical to support field offices. Among these operations are
scheduling cases for biometric collection and interview,
preparing cases for interview by conducting and recording the
results of required background checks, creating and
consolidating immigration case files, and shipping files to the
field offices for adjudication.
In 2014, the investor program office was consolidated under
the Field Operations Directorate and relocated from the
California service center to Washington, DC.
The IPO overseas adjudications of petitions for the EB-5
immigrant investor visa. The transfer of this workload to
Washington, DC allowed greater oversight of this important
program, while also providing USCIS the opportunity to leverage
expertise in the areas of financial transactions, economics,
business planning, intelligence, and other subjects necessary
for efficient and accurate adjudication.
Equally important, the relocation of the IPO allowed USCIS
to embed a team of experts from the Fraud Detection and
National Security Directorate and to enhance the security and
integrity of the program.
Today I hope to leave you with a better understanding of
the work done by the women and men of USCIS in fulfilling our
agency's mission. I hope that after today you share the pride
and appreciation that my colleagues and I have and the 18,000
immigration professionals that comprise this agency and in the
work they do each and every day.
In closing, on behalf of USCIS Director Rodriguez and my
colleagues, I thank you, Chairman Sessions, Ranking Member
Schumer and Members of the Subcommittee, for the opportunity to
share this information concerning USCIS Field Operations
Directorate with you today. I look forward to addressing any
questions or concerns you may have.
Chairman Sessions. Thank you very much.
Colleagues, if some of you have things you have to go to, I
will yield my time at the beginning. I just would want to note
that we have different perspectives around here.
My perspective is that the House of Representative fully
funded homeland security with their bill. They simply said you
could not use some of the money to carry out an extralegal
policy of executive amnesty that Congress had explicitly
rejected.
It was the Democratic Senators that blocked the Senate bill
from even coming to he floor and even having a chance to be
amended. They blocked funding for homeland security, number
one.
Number two, it has been repeatedly stated that this
immigration flow is an improvement to the economy. The
Congressional Budget Office studied that and what they found
was that per capita GDP went down. Yes, there would be some
increase in GDP to bring in 11 million more people, but per
person in America, their wealth, their share of the pie would
go down and go down for quite a long--two decades, I believe.
They also concluded that wages would go down. For the
average working American, wages would go down if the Gang of
eight bill had passed, and I am referring to that, and would be
down for over a decade. The last thing we need to be doing now
is executing a policy that pulls down wages of struggling
Americans, in my opinion.
Excuse me. If any of you want to go out of turn? I would be
glad to take my turn and then we will stay in sync.
Senator Tillis.
Senator Tillis. I will defer.
Chairman Sessions. All right. Very good. One of the things,
Mr. Moore, that you do not attempt to estimate, I do not think,
and have no numbers to estimate is the cost that might be
applied throughout the economy, particularly state and local
governments, for people who are provided legal status under
executive amnesty, such as California providing their health
benefit system to people who were declared legal under this
process are given status under this process.
You have made no attempt to consider those costs, have you?
Mr. Moore. Senator, we did not specifically address that
issue as part of our planning.
Chairman Sessions. You look at the fees and what you have
to do within your agency to process those applicants.
Mr. Moore. Yes. As the senior financial official, my role
is to look at programs and initiatives that are being proposed
and to determine internally what we believe the cost will be
and then establishing fees that will appropriate recover those
costs so that we do not impact other fee-paying customers.
We endeavor to establish fees that fully fund the various
programs.
Chairman Sessions. With regard to fees, I thought I
understood you to say Congress set those fees.
Mr. Moore. No. Congress gave us the original authorization
to establish fees, but we do that internally.
Chairman Sessions. The $85, I believe it is, for a--What?
Mr. Moore. Biometric.
Chairman Sessions. Biometric check. You get to set that,
whether you could be $100 or $75, if you chose.
Mr. Moore. Correct. We do cost accounting that allows us to
identify the actual costs associated with providing that
specific service.
Chairman Sessions. That represents--and all your fees then
represent accounting of the actual cost.
Mr. Moore. Actual costs associated with providing that
specific biometric service, yes.
Chairman Sessions. It is my understanding that USCIS does
not conduct in-person interviews of the DACA applicants, Mr.
Renaud, and have not been doing that. Is that correct?
Mr. Renaud. Thank you for the question, Senator. Typically,
we do not conduct in-person interviews. However, each DACA
requester is required to appear at an application support
center for their biometrics to be taken and their identity to
be confirmed.
Chairman Sessions. I'm aware of that, but many think that
is not adequate. For the normal legal applicant, though, you
do, you explained that your agents and your officers require
them to come in, to be interviewed personally before they get
legal status. Is that correct?
Mr. Renaud. Senator, in my statement, I think I mentioned
that--I think Mr. Neufeld mentioned that we collectively in
USCIS adjudicate approximately seven million applications a
year.
In field operations we adjudicate approximately 700,000
requests for U.S. citizenship, naturalization, and
approximately 500,000 adjustment of status applications to
permanent resident.
Chairman Sessions. Those are--they are done through person-
to-person interview, right?
Mr. Renaud. Senator, that is correct. Person-to-person
interviews, we interview approximately 1.2 million or slightly
fewer applications per year out of the seven million
applications.
Chairman Sessions. Experts have told me on that, a process
that does not have the person-to-person interview is really a
dangerous process and creates a lot of different dangers.
Just to go back, the President's deferred action for
childhood immigrants in 2012, you did not use person-to-person
interviews for those.
Mr. Renaud. Senator, there were certain instances, albeit
very few, that we did individual person-to-person interviews,
because----
Chairman Sessions. With regard to the new DACA, adults, you
do not plan--the policy is going to be not to do in-person
interviews of those; is it not?
Mr. Renaud. Senator, thank you for the question. Again, I
want to be clear on this. Any activity toward implementing
either expanded DACA or DAPA has ceased since the date of the
injunction. Some of the policy issues were being under review.
At the time of the injunction, there were not plans to
interview in person every requester for that.
Chairman Sessions. That is my understanding. There would
not be a plan to do person-to-person interviews. Not your
decision, somewhere else it has been made, which is contrary to
the normal process that you would go through to admit a person
lawfully and it creates, I think, a good deal of danger and
risk, as Mr. Palinkas, the union head of the officers, says,
that it would create great risk and undermine the ability to be
effective.
Senator Blumenthal, we are glad you are here. You get to
walk right in and take the floor.
Senator Blumenthal. Mr. Chairman, I have been here and I,
too, if any of our colleagues have other pressing issues, I
have to go to the Armed Services Committee. I am going to take
advantage of your calling on me. I was here earlier when you
gave your analysis of the situation with the Department of
Homeland Security funding.
I am not going to dispute you on the record at length
because I only have a limited amount of time, but I just do not
want my silence to be taken as agreement or assent. I have
great respect for the views of my friend and colleague and I am
just going to go straight to my question.
Let me ask you, all of you. What is the practical effect of
the Texas court decision? Has it disrupted ongoing efforts to
implement this program and, if so, how?
Mr. Renaud. Thank you, Senator. The practical effect is
that as of the date of the injunction, USCIS stopped any
implementation activity toward expanded DACA and the DAPA,
Deferred Action For Parents of Americans and Lawful Permanent
Residents.
Senator Blumenthal. Has that created, so far as you know,
confusion, anxiety, fear? I will just tell you, in my
experience in the State of Connecticut, the reaction has been
huge and it has caused panic, a lot of anxiety, fear,
uncertainty. You must be hearing it, as well.
Mr. Renaud. Senator, my understanding is that the
prospective requesters for deferred action are experiencing
that, yes.
Senator Blumenthal. Both parents, that is, potential
eligible applicants for DAPA, as well as the dreamers who would
be eligible under the extended DACA program; is that true?
Mr. Renaud. Yes, sir.
Senator Blumenthal. What would you do if either a stay is
granted or if the decision by the district court is overturned
on appeal? How quickly would it--obviously, the May date for
implementation of DAPA might be difficult unless a stay is
granted.
How quickly do you need to know so as to be able to proceed
on schedule?
Mr. Renaud. Senator, that is a very good question. I think
that we would look to general counsel to advise us on--to
advise the agency on how to proceed in light of some additional
court activity.
We know that we were approximately 90 days into the
implementation of deferred action for parents of Americans and
permanent residents and this was certainly interruptive by
virtue of the injunction, and we would need to reassess where
exactly we were.
Senator Blumenthal. Essentially, if applications are filed
in the interim, they would be considered one by one after the
program is reinstated, if, in fact, it is reinstated; is that
correct?
Mr. Renaud. Senator, I would say that is a likely outcome,
yes. But I apologize, I cannot foretell what may----
Senator Blumenthal. If the court returns the situation to
what it was before the decision, you would implement the
program.
Mr. Renaud. That is my understanding, sir.
Senator Blumenthal. You would consider those applications
one by one and you would see whether they met the criteria for
the program that the President has established.
Mr. Renaud. Again, speculating, I think that would be the
case. We would be----
Senator Blumenthal. Some of those applications might well
be rejected.
Mr. Renaud. That is correct.
Senator Blumenthal. Some would be accepted under the
existing criteria and standards, which involve an exercise of
discretion; am I correct?
Mr. Renaud. Senator, yes. If the question is does deferred
action represent an exercise of discretion, you are absolutely
correct, and that each application, were the program to be move
forward at some time, each application would be reviewed
individually based on the evidence in the file, based on
rigorous background checks, based on national security and
security checks--I am sorry--national security and public
safety checks, and then discretion would be administered to
determine whether we chose to offer deferred action or not.
Senator Blumenthal. Thank you. Thanks very much to all of
you for your testimony here today.
Thank you, Mr. Chairman.
Chairman Sessions. It will be Senators Perdue, Cruz, and
Tillis.
Senator Perdue. Thank you, Mr. Chairman.
Thank you guys for being here today. I just have a
practical question based on the volume of increased demand that
is coming at you.
As I understand, you have about 13,000 adjudicators right
now, 5,000 government contractors, and then I think you are in
the process of hiring 1,000 new employees for your new Crystal
City facility, if I understand that correctly.
According to recent press reports, the Administration
estimates that perhaps as many as 800,000 applicants will
arrive at your agency the first two and a half--a 70 percent
increase, as I understand.
I have a practical question about how you are going to
handle that volume. A report issued by your agency's Office of
Inspector General in 2007 stated that the USCIS workload system
was geared toward approval as opposed to denial of applications
and that adjudicators' performance reviews were based on the
number of applications processed. This means that the volume of
applications processed correlated with high performance rating.
The inspector general's report also noted how USCIS was
``drastically failing,'' quote-unquote, this is his term, not
mine, to comprehend how time pressure affected the case
officer's ability to make appropriate adjudicator decisions.
More recently, in 2014, Ken Palinkas, the president of the
National Citizenship and Immigration Services Council that
represents USCIS adjudicators, said that USCIS still maintains
a quota system that prioritizes speed over quality and
approvals over investigation.
I have a question about how you incent people, how you
manage the workload. I want to make sure that we do not have a
rubber stamp mentality based on the sheer amount of volume that
is coming at you, and I will throw that open to the panel.
I would like to hear--get your response to that.
Mr. Neufeld. I will jump in. Can you hear me? I guess I do
not need to push the button.
We are aware of that report and partly as a result of that
report, but also partly from our own assessment of the
situation, we initiated a quality workplace initiative--that is
what we call it--internally and among many things, the
principal focus of it was to focus on quality as the
incentivizer for our staff and to work that into the
performance work plans as opposed to the past emphasis, which
may have been an overemphasis on production, on counting cases
that folks produced.
I can tell you that for the last--I think it is going on
two years now, production metrics have been taken out of all of
our performance work plans, both for the officers in service
center operations and also for the Field Operations
Directorate.
Senator Perdue. The 1,000 new employees coming, how long
does it take to train adjudicators in that process? Are these
experienced people in the process?
Mr. Neufeld. I would defer to my colleague.
Mr. Renaud. Thank you. Thank you, Senator.
The 1,000 people you are referring to was the original
stated staffing for the center in Crystal City that, again, was
put on hold due to the injunction. At the time, we were
planning on hiring between 700 and 800 Federal employees. About
400 of those would have been adjudicators, would have been
decisionmakers on applications.
Typically, the--an adjudicator goes through a five-week
training course, basic training, where they are taught by
seasoned instructors, immigration law procedure, immigration
history, to get a good core, a good foundation from which they
can build a career.
After that is completed, they then go on to whatever
specific caseload that they will be working. There are
generally between two and four weeks of training, mentoring and
coaching that go on and then they are considered fully trained
or certified, and that was the plan that we would have
implemented in the center in Crystal City.
Senator Perdue. Right. I understand it is on hold. To put
that in perspective, in past years, how many people in an
average year would be trained in that process, USCIS?
Mr. Renaud. Senator, I apologize. I do not have that--I do
not have that number.
Senator Perdue. The point is this is an incrementally large
number compared to the average that you normally train in an
average year; is that correct?
Mr. Renaud. Senator, that would have been a--that would
have represented a surge in our training demand, yes.
Senator Perdue. Thank you, Mr. Chairman.
Chairman Sessions. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman.
Gentlemen, thank you for being here for this hearing. Mr.
Chairman, thank you for holding this hearing on this
exceptionally important topic.
I want to start by focusing on the question of DHS's
compliance with the ongoing court injunction. Following the
court order declaring executive amnesty, illegal, President
Obama told reporters that DHS would, quote, ``be prepared to
implement DAPA.'' He went on to say that, quote, ``preparatory
work for DAPA would continue,'' quote, ``because this is a big
piece of business,'' end quote.
Mr. Renaud, you said earlier that USCIS has stopped any
implementation of DAPA. That seems in conflict with what the
President told reporters. Was the President being accurate when
he said that preparatory work is continuing on DAPA to this
day?
Mr. Renaud. Senator, thank you for the question. I--You are
correct in your assessment of my testimony and I can testify
without any pause that USCIS is in full compliance with the
injunction and that at this time, all work toward the
implementation of DAPA is on hold.
Senator Cruz. Is preparatory work ongoing for DAPA?
Mr. Renaud. There is no work--to the best of my knowledge,
sir, there is no work going on toward the implementation of
DAPA.
Senator Cruz. With respect, I want to make sure that we are
not parsing words of work toward the implementation versus
preparatory work. The words that the President used were
preparatory work. If there is, indeed, something being done
that is called preparatory work, I would like to know what it
is.
Mr. Renaud. Thank you for the question, Senator. I am not
aware of any preparatory work being done with respect to DAPA,
and I do not mean to mince words. I apologize for that.
Senator Cruz. You mentioned that the plan was, I believe
you said, to hire 700 to 800 people to implement the DAPA
program. How many of those to date have been hired?
Mr. Renaud. As of the date of the injunction, we had, I
believe, one individual--one or two individuals who were onsite
who had been hired to serve permanently, effectively, in that
center. I believe that the paperwork to make--to essentially,
effectively, officially enter them onto duty had not been
completed. At this point, there are no permanent employees
assigned to the Crystal City facility and the one individual
who was effectively on detail there awaiting an enter-onto-duty
date has been reassigned.
There are no employees that were hired to work DAPA that
have come on board since the injunction that are still toward--
that are still--that are assigned to the Crystal City center.
Effectively, the answer to your question is zero.
Senator Cruz. You said no full-time employees. Is that
equally true for part-time employees?
Mr. Renaud. Yes. I am sorry. Why I make the distinction,
sir, is that we do have--we had a small number of individuals
who were detailed. I think we have three Federal employees who
were detailed to that center and their regular permanent jobs
are elsewhere.
Senator Cruz. Is hiring ongoing to fill those positions?
Mr. Renaud. Senator, thank you for the question. All hiring
activity has ceased. We had made tentative job offers to
approximately 360 individuals, about half of whom were veterans
of the military service, and all of those individuals are
awaiting final clearance and that final clearance has been put
on hold.
Senator Cruz. How much has been expended to date on the
Crystal City amnesty processing center?
Mr. Moore. Senator, we have spent very little preparing the
program. We have spent less than $11 million in total. That
includes the lease for the Crystal City facility, which was
around $7 million.
Senator Cruz. Are those payments ongoing?
Mr. Moore. The rent payments, the monthly rent payments are
ongoing because of the terms of the lease agreement.
Senator Cruz. Is that facility just empty right now or what
use is it being----
Mr. Moore. Yes. That facility is basically empty, not being
used.
Senator Cruz. What square footage are we talking about here
that is empty?
Mr. Moore. I cannot recall. I think it was a couple hundred
thousand square feet. It was a good-sized facility.
Senator Cruz. That space is not being used to carry out
USCIS' statutory mandates of processing legal immigrants who
are following the rules; is that correct?
Mr. Moore. Take that, Dan? No.
Mr. Neufeld. If I may, Senator. USCIS is assessing, given
that we spent 90 days trying to--working very diligently to
build that--the capacity in that center to process deferred
action for parents of Americans and LPR requests and we are
only two weeks or so into an injunction, we are at a point
where we are reassessing whether--the extent to which that
center will relieve some of the pressures that we see from both
a facility standpoint and a workload standpoint at our other
centers, and that decision is ongoing.
At this point, your supposition is correct. That center
remains empty the way we found it.
Senator Cruz. I would certainly encourage that assessment.
I would note that last week I sent a letter to Secretary
Johnson asking specifically any preparatory work or any
expenditures that were being made in violation of the
injunction. I received a letter back from Mr. Leon Rodriguez,
the Director.
With the Chairman's agreement, I would like to enter both
letters into the record.
Chairman Sessions. Without objection, they will be part of
the record.
Senator Cruz. Both Director Rodriguez's letter and your
testimony today indicate that no preparatory work is ongoing. I
just want to remind each of the three of you of the terms of
the injunction, because the injunction prohibits--enjoins the
United States from implementing, quote, ``any and all aspects
or phases of the DAPA program,'' which is exceptionally broad
language for an injunction, and that, by its express terms,
applies to all officers, agents and employees of the Federal
Government, meaning that each of the three of you are bound
individually by the terms of this injunction.
I am pleased by the testimony the committee is receiving
today, but I want to remind the witnesses that violating the
terms of the injunction could potentially subject any officer,
agent or employee to contempt of court.
That I hope--I hope the implementation or, rather, lack of
implementation continues consistent with the court order. I
will have additional questions on a second round, but I thank
each of you.
Chairman Sessions. Thank you, Senator Cruz.
I would offer for the record an answer that you provided to
us, Mr. Moore, I believe it is from you, that estimates the
Crystal City facility total cost to stand up facility,
$26,231,000. I would offer that into the record.
Chairman Sessions. I know you have not spent all that yet,
but that is what you estimate the costs to be.
Mr. Renaud, you talked about conducting rigorous background
checks, but the problem is that we don't--that is apparently
not going to be happening.
I think you meant for people who are currently applying to
be lawful residents and being processed under normal
procedures. I do not think that we could come close to saying
that that is going to be the status for those who are processed
under DAPA or DACA, for that matter.
People that apply for visas in foreign embassies, they have
to go to the embassy, do they not, Mr. Neufeld, and be
personally interviewed unless they have an unusual age or lower
age or something?
Mr. Neufeld. I believe that to be accurate, yes.
Chairman Sessions. We have got lawful immigrants that come
to Mr. Renaud and his staff, lawful immigrants that apply for a
visa in various countries around the world, they have to be
personally interviewed. Those who violated the law, entered the
country unlawfully, who now want to be rewarded for that action
by being given a legal status that ultimately most people think
the President would want to make permanent, and they would not
have to--they will be processed with less standards. Is that
not correct?
Mr. Renaud.
Mr. Renaud. Senator, I think what is important to
distinguish here is the difference between a status granting
benefit and a benefit that does not grant----
Chairman Sessions. I understand that there will be some
difference in status. You are right. But just on the question
of who gets the most scrutiny, the lawful requstor for legal
status, permanent residency, and those kinds of things, H-1B or
whatever, they would be undergoing more scrutiny than these
individuals. I think you could answer that yes.
Mr. Renaud. I do not--sir, I do not think I can
conclusively. I think that----
Chairman Sessions. How about most of them?
Mr. Renaud [continuing]. H-1Bs go through a different
process than would an applicant for permanent residence or an
applicant for citizenship.
We utilize a layered--layered approach to security checks
based on the status, right or privilege that one is applying
for and then we execute that in the proper amount based on the
status that they are, the status, right or approval that they
are applying for.
Chairman Sessions. I think it is fair to say that people
who enter into a process to get lawful status in the country,
lawful permanent residence, green cards or otherwise, at some
point are interviewed personally, and these individuals are
going to be given what I would say is certainly an indefinite
legal status, the right to work, and the right to participate
in Social Security, Medicare, the right to have tax credits,
checks from the U.S. Government, even for back years.
I think Mr. Palinkas is correct. He represents your
officers. He says that yes, we have an assembly line
adjudication process. I would like to ask you about that. He
says that instead of having one officer review the entire file
and be responsible for making an evaluation of whether this
person is admissible or not or approved under the program, that
there is an assembly line adjudication process that is going to
be implemented.
One person evaluating each section on the application and
the last person doing the actual final adjudication and
certification, that there are no errors in the process and the
person has complied.
This is dangerous. One section of an application cannot be
evaluated effectively, it seems to me and to Mr. Palinkas, in
isolation. You need to read the whole file and see what
happens, and this mentality also tends to remove individual
responsibility of the certifying officer because he can just
say somebody else did not pick up something in the file.
Do you agree with Mr. Palinkas that that is a less
effective process? Mr. Renaud.
Mr. Renaud. Senator, I absolutely appreciate the question
and I am very glad you asked it. I think there are a couple of
things that Mr. Palinkas and I disagree with.
One, I think that with respect to accountability--and what
you are describing is the would be process under DAPA--we
looked at--again, my role in this organization is to stand up
an operation in the most secure and effective way that I can
given the timeframes allocated.
Chairman Sessions. The money allocated.
Mr. Renaud. We looked at--that is correct, yes.
Chairman Sessions. You are to do the best job you can.
Mr. Renaud. Absolutely.
Chairman Sessions. I am not accusing you personally. I am
saying under the procedures that we have here, the pressure you
are under, you are not going to be able to do as good a job of
background evaluations and personal interviews as I think and I
think most Americans believe will happen. Right?
Mr. Renaud. Senator, I would respectfully disagree with Mr.
Palinkas. I believe that given that we were hiring
predominantly new adjudicators off the street, training them in
what under DAPA were largely mutually exclusive eligibility
grounds, using a system that would assign individual
accountability for each individual's part of the application
process that they were responsible for, and then having a
higher level adjudicator at the end of the process review that
and decide, on a discretionary basis, on an individual case-by-
case basis, we believe that we would do a better job of
ferreting out fraud.
We believe that we would do a better job of ensuring a
quality adjudication and we would do a better job of
eliminating a single point of failure.
Chairman Sessions. It is your testimony that on the normal
process of one person fully evaluating the entire record and
file, if there is sufficient money around, that is, this new
process of having less experienced people process individual
portions of the file and one person adjudicating at the end,
you believe that is a better process or just one you have to
use to accomplish the directions you have been given? That is
what it seems to me the truth is.
Mr. Renaud. I think that we looked at--we looked at this as
an opportunity to provide the most secure and effective and
complete and accurate adjudication process of these cases.
Chairman Sessions. Under the circumstances that you have.
Mr. Renaud. Yes, sir.
Chairman Sessions. It would not be as good as the process
you normally seek to use for processing cases apart from DACA
and DAPA.
Mr. Renaud. We--Senator, we certainly would have been in a
better place if we--we would be in a better place were we able
to use seasoned, experienced adjudicators. That much is
correct.
Chairman Sessions. Senator Cruz or Senator Lee? Senator
Lee.
Senator Lee. Thank you very much, Mr. Chairman.
Thanks to all of you for joining us and for all that you
do.
Mr. Renaud, I would like to start with you. Does your
directorate process applications for adjustment of status?
Mr. Renaud. Senator, my directorate processes primarily
family based adjustment of status applications, yes.
Senator Lee. Adjustment to status allows an alien who is
unlawfully present to officially get a green card, right? If
you adjust status, if you are unlawfully present in the United
States, you want to get a green card, you would have to have
your status adjusted before doing that.
Mr. Renaud. Senator, the term--adjustment of status for us
is a term of art. It represents--it describes someone who has
gone from other than an unlawful permanent resident to the
status of a permanent resident.
Senator Lee. Okay and one of he ways that you can--one of
the requirements for adjustment of status is that the person be
either admitted into the United States or paroled into the
United States. Is that accurate? Those are two ways that you
can adjust status.
Mr. Renaud. That is a requirement, yes.
Senator Lee. Typically, a person who crosses into our
border, who enters the United States without inspection does
not qualify for--does not satisfy that requirement, would that
be correct?
Mr. Renaud. Senator, typically, someone who is unlawfully
present in the United States in most cases would not be able to
adjust their status in the United States based on the equity,
the underlying equity that would afford them permanent
residence. They would need to go abroad and be consular
processed for permanent residence.
Senator Lee. Okay, if they went abroad and got consular
processed for permanent residence, that is one way of doing it.
Another way of doing it might be if they could somehow
secure advanced parole; is that right? If they were granted
advanced parole, that could allow them to change their status.
Mr. Renaud. Senator, if they were granted advanced parole,
departed the country and came back in parole status, that would
cure the inspected and admitted or inspected and paroled
criteria. They would still need the underlying basis for the
permanent resident status, such as an employment relationship--
I mean, employment offer, typically, or a family relationship.
Senator Lee. Okay, but assuming they have got the other
thing satisfied, the condition in which they find themselves
relative to their status by virtue of having entered without
inspection, that could that be cured by advanced parole.
Mr. Renaud. That is correct. Someone who has equity in the
United States that is a status granting equity of permanent
residence, they would be able to adjust status in the United
States if they were here on parole.
Senator Lee. USCIS, if I am not mistaken, treats advanced
parole as parole for purposes relevant to adjustment of status.
In other words, if you are granted advanced parole, that is
just as good as being granted parole upon entering.
Mr. Renaud. Senator, I think that is incorrect. I think
that we only treat it as parole if you actually do, in fact,
depart and then return and be paroled into the United States.
Senator Lee. Right. That is the whole concept of advanced
parole, at least what I am talking about, is being told prior
to your departure you leave, you come back, you will be treated
as parole. That gets us here. If you are granted advanced
parole, that takes care of that requirement.
Mr. Renaud. Senator, yes. If you are granted advanced
parole and then use that advanced parole, then you are paroled
in the United States and you are considered a person who has
been inspected and paroled into the United States. That is
correct.
Senator Lee. The government does not have unlimited power
under the immigration code to grant parole, does it? In fact,
its power is limited by Section 212(d)(5)(A) of the Immigration
and Nationality Act, which says that the Department of Homeland
Security may grant parole to an alien, quote, ``temporarily
under such conditions as he may prescribe, only on a case-by-
case basis for urgent humanitarian reasons or significant
public benefit.'' Those are two statutory terms of art found in
Section 212(d)(5)(A) of the Immigration and Nationality Act.
Urgent humanitarian reasons or significant public benefit.
Your agency has issued a form, I have got a copy of it
right here and you have got a copy of it in front of you. This
is Form I-131. It seems to me to depart from that statutory
standard. It seems to me to violate that standard.
Mr. Chairman, I am offering that form and the accompanying
instructions for the record.
Chairman Sessions. We will make it part of the record,
without objection.
Senator Lee. I have distributed copies of those
instructions, along with the form for the witness' benefit, and
I call your attention to the highlighted language on pages four
and five of the I-131 instructions.
Here is what it says. ``USCIS or U.S. Immigration and
Customs Enforcement has deferred action in your case as a
childhood arrival based on the guidelines described by the
Secretary of Homeland Security's memorandum issued on June 15,
2012. USCIS may, in its discretion, grant you advanced parole
if you are traveling outside the United States for educational
purposes, employment purposes, or humanitarian purposes.''
It goes on to say that educational purposes include, but
are not limited to, semester abroad programs or academic
research. Employment purposes include, but are not limited to,
overseas assignments, interviews, conferences or meetings with
clients.
I will ask you, Mr. Renaud, and I will extend the same
invitation to our other witnesses. Do any of you--does any one
of you see here educational purposes or employment purposes
anywhere in the statute, anywhere in Section 212(d)(5)(A) of
the Immigration and Nationality Act, which is the Federal
statute that governs when parole can be granted to an
inadmissible alien?
Do you see any of those words anywhere in the statute?
Mr. Moore. No.
Senator Lee. Mr. Neufeld is shaking his head. Mr. Renaud.
Mr. Renaud. I do not see the words on the piece of paper
you handed us.
Senator Lee. Do either of you believe that a meeting with a
client in a foreign country presents an urgent humanitarian
reason or a significant benefit to the American public?
Mr. Renaud. Senator, I think that these are--what is
important to know is that when we create forms and form
instructions, there is a review for legal sufficiency that both
Mr. Neufeld and Mr. Moore--well, all three, Mr. Neufeld, Mr.
Moore and I are--that is not our area of expertise. I am not
sure that I can answer your question.
Senator Lee. Okay, let us take a different approach,
because as I look it, I do not see anything in INA Section
212(d)(5)(A) that does that, nothing, nothing at all.
Let me just ask you--ask this in the form of a
hypothetical. Imagine an alien, a foreign national approaches a
border, a U.S. border. Imagine further that he is from a
country whose citizens need a visa to enter the United States.
The border guards ask him if he has a visa. He says, ``No, I do
not have a visa, but I have a business meeting in Houston. Can
I come in? I have got a business meeting. It is important to
me, that business meeting. Can I come in even though I do not
have a visa?''
Is there any chance that your agency or any part of the
Department of Homeland Security would accept that as a reason
to just parole him into the country?
Mr. Neufeld. I will jump in here. That determination would
not be made by any of the three of us. That would be made by
Customs and Border Protection.
Senator Lee. Okay and based on your understanding of the
law, based on your understanding of how those agencies operate,
those people within the appropriate agency operate, do you see
any likelihood that they would be granted advanced parole? I am
sorry. That they would be granted parole under the statutory
language that we are talking about.
Mr. Neufeld. I can say that I have not seen that in my
career with USCIS.
Chairman Sessions. Senator Lee, you are over.
Senator Klobuchar--I do not know if she wants to go right
now. If so, I will let you and you can have some of my time
next.
Senator Lee. Understood. Thank you.
Chairman Sessions. This is an important issue that Senator
Lee has spent a good deal of time researching and it relates to
the promise the President made that nobody would get
citizenship under this program, and it appears that they will.
Senator Klobuchar.
Senator Klobuchar. Thank you. Thank you very much. I have
some specific questions I am going to start out with about a
Minnesota issues. I know, Mr. Renaud, I do not know if you are
aware of what went on with the immigration office in
Bloomington, Minnesota.
Mr. Renaud. Yes, Senator, I am.
Senator Klobuchar. Good. The agency was incredibly helpful.
I think you heard that a number of us were working on this
because the space that was picked for the new location was not
actually--it had no bus route, nothing, and a number of the
people that go there take buses.
It was--now, you were willing to--your agency was willing
to say this is a problem and reopen it for bids on where it
would be; is that correct?
Mr. Renaud. Yes, Senator. My understanding is that mistakes
were made by GSA.
Senator Klobuchar. Yes. There is now a second search
underway to find a space that is appropriate. Do you know what
the status of that search is?
Mr. Renaud. Thank you for the question, Senator. My
understanding is that the General Services Administration has
briefed your staff in Minnesota and I believe here in D.C. that
we--the initial solicitation for bids in the central business
districts of St. Paul and Minneapolis did not yield sufficient
competition. My understanding is that in February, they
expanded the search area to, I believe, these city limits of
Minneapolis and St. Paul and they awaiting that process to move
forward.
Senator Klobuchar. As you know, it is now in Bloomington
and the office has about 28,000 visitors, processed 13,000
applications just in 2013. It is a pretty big place and I just
want to thank your agency for being willing to look at where it
could be relocated.
Mr. Renaud. Thank you, Senator. That staff does a wonderful
job. I appreciate your interest.
Senator Klobuchar. Then there is also another Minnesota
issue with the Form 19 address requirement. Are you aware of
this? This is Minnesota has an address confidentiality program
called Safe at Home and it is designed to help survivors of
domestic violence, sexual assault, stalking, or others who fear
their safety, maintain a confidential address, which is pretty
commonplace. We did that a lot when I was a prosecutor.
Part of the program allows participants to use a PO box
address assigned to them. However, changes to the Form 19,
which is the employment eligibility verification form, no
longer allows the individuals to use a valid PO Box address. I
think it affects several other states with these kinds of
programs, including Arizona, Virginia, Minnesota.
I was hoping that you could commit to reviewing this issue.
Is this in your department?
Mr. Renaud. I will certainly take the question, Senator.
Thank you for the question. I was not familiar with that. I
apologize for not being prepared for that question today and we
will certainly take it back and get back to you.
Senator Klobuchar. Right. I did not expect you to. I just
think it sounds like something we would normally do to protect
domestic violence victims. It must be a new reformed form. I am
hearing one of my colleagues mention another form. I am sure
you have a lot of forms and that is why I thought I would just
throw one out to see if you knew.
I think that it sounds like something maybe we can work on
so those states that have these confidentiality programs, maybe
they could get some kind of a waiver for the forms.
We will be in contact with you afterward.
Mr. Neufeld, there you are. In your previous positions with
USCIS, you have served as the director or the acting director
for service centers in California and Nebraska and Florida. In
your current position, you also oversee employees in border
states like Minnesota. You do not think of us, but we are
border State with Canada. Right? California and Texas, as well
as the inland locations of Nebraska and Vermont.
Could you talk about the different immigration needs in
those states? I know a little bit about it. I do not know if
you know, we have a part of Minnesota that is accessible only
through Canada, and there are 200 Minnesotans that live there.
In the winter, they can take snowmobiles over the ice but
in the summer they usually tend to drive through Canada to get
to Minnesota. It was a mapping error and so they are out there
on their own. But do you want to talk a little bit about some
of the Canadian border issues that you see emerging?
Mr. Neufeld. I will tell you, in my role as the center
director for those--for the California service center and
acting director for the Nebraska service center, first of all,
I was very happy to get to spend some time in the Midwest,
being a native Californian.
We--in our centers, we do not deal with the folks coming
into our offices. In other words, our jurisdiction, the
Nebraska service center may service folks from Florida or any
other part of the country, and the same thing with the other
centers. They typically do not divide up their jurisdictions.
Senator Klobuchar. You are saying that the California
people get as many Canadians as we do?
Mr. Neufeld. The California service center might get as
many folks from----
Senator Klobuchar. Because they are just moving there.
There are not any regional differences.
Mr. Neufeld. No. I think we are getting into an area--the
service centers will take applications from all over the
country.
Senator Klobuchar. I understand.
Mr. Neufeld. Migration patterns, folks are moving all over
the country and would imagine that in Minnesota, you are
probably seeing man more Canadians than we did when I lived in
California.
Senator Klobuchar. We will leave that for later. We just
always have issues on the northern border.
I will ask you about one more thing and that is that in
your testimony, you referred to the changes being made in
oversight of application reviews shifting away from a more
rigid production model toward a flexible system.
Of course, completing the review of applications in a
timely fashion is a primary concern. How has the shift in the
way you process the application improve the quality of the
reviewed being performed?
Mr. Neufeld. We are still assessing the outcome of this
change. What we have a lot of right now is anecdotal
information from our employees who say that they feel that they
have--they are relieved from the prior sense that they might
have had pressure to do a certain amount of work in a certain
amount of time.
We emphasize at every level that they should take the time
that they need to give a proper adjudication without any fear
for how that might translate into their performance.
Senator Klobuchar. Thank you very much.
Chairman Sessions. Thank you, Senator Klobuchar.
I guess, Mr Renaud, to follow-up on Senator Lee's
questions--he had to go to another meeting. Your form explains
the advanced parole program and would seem to allow an alien
unlawfully in the United States to get parole so long as he has
a client meeting of some kind outside the United States, say,
in Toronto or Mexico City and then wants to come back into the
country.
Under that process, does it not allow that an individual
would be able to then apply, having been lawfully admitted,
that applied for a green card?
Mr. Neufeld.
Mr. Neufeld. I will take that. Yes. Generally, to apply for
adjustment of status, to be eligible for adjustment of status,
you have to have been inspected and admitted or paroled.
Someone who had received advance parol, departed, was paroled
back, then they would satisfy that requirement and be eligible
if they had a basis for adjustment in the first place.
Chairman Sessions. Thank you. Of course, if you have a
green card, permanent status, then if you do not commit a
serious crime or a few other matters, you are on a guaranteed
path to apply for citizenship if you choose.
Mr. Neufeld. Once you have a green card, typically, if you
have five years of residence, then you are eligible to apply
for citizenship.
Chairman Sessions. Senator Cruz, if you would like to go
next?
Senator Cruz. Thank you very much, Mr. Chairman.
A couple of issues I want to address. One, I mentioned
before the letter from Director Rodriguez of February 26, 2015
that we have already entered into the Committee hearing record.
In that letter, Director Rodriguez stated that Secretary
Johnson reiterated his instruction in a memorandum to the heads
of the relevant DHS components in terms of how to comply with
the district court's order and I would like to ask the
witnesses here to provide that memorandum to the Committee to
be entered into the record so that the Committee can see the
written instruction that the component heads have been given.
Mr. Moore. Yes.
Senator Cruz. Thank you very much.
I want to shift topics to the question of fees and a couple
of different aspects of it. Number one, Mr. Moore, as I
understand it, USCIS's position is that various immigration
fees can be allocated. Let us set aside the district court
injunction for a moment.
Prior to the injunction, it was USCIS's position that
certain fees could be allocated to implement DACA and DAPA,
absent congressional authorization, and there are a variety of
fees, including the immigration examination fee account, the
immigration user fee account, the H-1B non-immigrant petitioner
account, the land border inspection fee account, the fraud
prevention and detection account, the premium processing fees,
and all of these are enumerated in Title 8 of the United States
Code, Section 1356.
The first question I would ask of you, Mr. Moore, is
roughly how much money does USCIS have at its disposal via the
immigration examination fee account and these other accounts
and fees?
Mr. Moore. Thank you for the question. Managing a fee-based
operation the size of USCIS is complex, with many different
fees. We have set as a condition of protection for us to retain
at least $600 million annually as our cash reserves. The one
thing that we recognize is that USCIS and in many ways operates
very much like a commercial enterprise.
We get money as it comes in and we have to manage our
expenses related to that. At the beginning of a year, when we
are anticipating spending up to $3 billion, much of that is
what we call anticipated collections.
As we are spending, we are taking in new fee revenue. Our
permanent indefinite appropriation allows us the authority to
immediately access those fee revenues. We still do work with
Treasury to get money warranted and with OMB to have
apportioned to us, but all of that happens quite seamlessly in
the immigration examinations fee account.
We have a very detailed operating plan that we use to
identify our agency spending. That operating plan ensures that
we are maintaining that reserve.
I want to just mention that the fee account, as I mentioned
in my opening statement, is subject to fluctuations, normal
course of business, and the fee structure allows for those
surges in workload to bring in fee revenue that allows us to
promptly address that.
Senator Cruz. How much money are we talking about?
Mr. Moore. In our reserves? As I said, we had last year, in
total, in our examinations fee account, about a $1 billion
carry over balance, and that was between premium processing,
about $734 million, and the balance--excuse me--non-premium
processing of $734,000 and about $460 million in premium.
Senator Cruz. You stated in a letter to the Chairman that
those funds can be used for the purpose of processing DAPA and
DACA. Do you see any statutory language whatsoever in Title 8
United States Code Section 1356 that allows those funds to be
used for those purposes?
Mr. Moore. Senator, thank you for that question. I defer to
our legal counsel to guide us on the lawfulness or the
appropriateness of programs and initiatives as far as expending
our immigration examinations fee account. And so I rely on
that----
Senator Cruz. You cannot point to any statutory language
here today; is that correct?
Mr. Moore. I am not qualified to make that kind of
determination. Again, I work with our legal counsel who gives
me advice and assures us that, in their view, it is legal.
If I am moving forward with authorizing spending within our
agency, I am doing so with the confidence that it is legal
action based on counsel that I am receiving.
Senator Cruz. I would note your legal counsel is apparently
authorizing you to spend money that is not authorized by
statute.
I would also note the position of USCIS that there is over
$1 billion in unregulated funds that is not subject to
Congress' authority and can be spent independent of the
appropriations process is something, it seems to me, Congress
should correct in this upcoming appropriations cycle so that
USCIS operates like any other agency of this government,
pursuant to appropriated funds and not with your own bank
account.
Let me shift to a different topic, with the Chairman's
indulgence.
One of my many concerns with the President's executive
amnesty, my first concern is that it is contrary to Federal law
and unconstitutional. As I noted earlier, a Federal district
court has agreed that it is contrary to law and has accordingly
enjoined it.
Another major concern is the question of fairness, that
executive amnesty benefits and, in fact, gives preferences to
those who are here illegally and it does so to the detriment of
legal immigrants, of those who have followed the law and come
here legally.
I am the son of a legal immigrant who, 58 years ago, came
here, applied to come here legally and ultimately received U.S.
citizenship.
It was reported in the Los Angeles Times that the DAPA
program was expected to cost between $324 million and $484
million over the next three years. Is that an accurate
projection?
Mr. Moore. Yes, sir. That is based on internal cost
estimates.
Senator Cruz. That means somewhere between $324 million and
$484 million that would otherwise be spent to aid the
processing of legal immigrants is not being spent for legal
immigrants. Their wait times are going up, the bureaucracy is
going up, their burdens are going up; is that accurate?
Mr. Moore. Senator, not quite. The fee associated with a
DACA expansion DACA applicant, $380 for the employment
authorization document, $85 for the biometrics, would--was part
of the filing requirement and we estimated that through those
requests with the associated fee that it would yield the kind
of revenue that you quoted. That we believe that the
individuals applying for deferred action would, in fact, pay
the cost of the program without us having to borrow from
others.
Senator Cruz. I am glad you brought that up because you
describe the $380 I-765 fee and the $85 biometric fee as
somehow a fee for DAPA, but is it correct that those apply to
everyone, not specially DACA or DAPA?
Mr. Moore. Those are the fees that are associated with the
DACA original----
Senator Cruz. They are not specifically DACA and DAPA, are
they? Are there non-DAPA or DACA applicants who pay those fees?
Mr. Moore. No, sir. Not in the combination--well, when I--
let me rephrase that. We package the Form IA-21D and the I-765
together as a filing requirement. Only DACA/DAPA applicants are
filing those documents as a package.
Senator Cruz. The I-765 is not paid by anyone who is not a
DAPA or DACA recipient.
Mr. Moore. No. The work authorizations are issued according
to other adjudicative actions, but they would pay that fee,
correct.
Senator Cruz. It goes back to what I said. Everyone is
paying that fee. That is not a special DACA/DAPA. And let me
just underscore this. For example, the I-140, the immigrant
petition for alien worker, is $580. That is someone coming here
legally to work. A DAPA or DACA person pays zero dollars.
They both pay the $360 and the $85, but in terms of the fee
for the application, someone following the law is penalized and
is paying, in that instance, $585 versus zero dollars. Is that
correct?
Mr. Moore. Senator, I think the--the DAPA and DACA
applicants, we are charging $365 or----
Senator Cruz. Everyone.
Mr. Moore. Excuse me--$380 to cover the cost of processing
their request. The individuals filing the I-140 are applying
for a separate benefit and they are paying an associated fee
for that. There is not an overlap.
Senator Cruz. Let us give another example, which is the----
Chairman Sessions. It is the same amount of money. It is
the same amount of money, right?
Mr. Moore. The same fee, I-765 fee is--correct. That is the
same fee across the board.
Senator Cruz. The I-526, the immigrant petition by an alien
entrepreneur, costs $1,500. If someone wants to come here,
start a business and create jobs, we say thank you very much,
write a check for $1,500. Someone who came here illegally,
broke our laws and is applying for DAPA or DACA, we charge them
zero dollars; is that correct?
Mr. Moore. We--Senator, we calculate our fees based upon
the level of effort that is required to review and process each
form type. We use activity-based costing to do so. If the cost
is much higher for that----
Senator Cruz. Let us give one more example, which is the I-
924, the application for regional center under the immigrant
investor pilot program.
The immigrant investor putting capital to work to create
jobs at a time when the lowest labor force participation since
1978, we charge that person $6,230 for the privilege of hiring
Americans and creating jobs.
Those who come here legally are being penalized and yet
those who come here illegally are facing a fee of zero dollars
to be allowed legal status.
Does that strike anyone on this panel as remotely fair?
Mr. Moore. Senator, we do charge a fee for the DACA/DAPA
program. It is not free. There is the----
Senator Cruz. The $380----
Mr. Moore. Yes.
Senator Cruz [continuing]. And the $85 are paid uniformly
by everyone. That is not a special fee for DACA and DAPA.
Mr. Moore. No, but it is a fee that they are paying.
Senator Cruz. They are paying one of the fees, but everyone
else coming legally pays an additional fee, except those here
illegally. I have to say I cannot think of any other fee
program, any rational fee program that allows those who break
the law to be exempt from paying a fee, but if someone is
foolish enough to actually try comply with our immigration
laws, to wait at home, to wait in line for years, sometimes
decades, we smack them with a fee of $1,500 or $6,200, but
those who are here illegally pay nothing.
That strikes me as a program that is indefensible to the
American people.
Thank you, Mr. Chairman.
Chairman Sessions. Thank you. Even the Gang of Eight bill
had a $1,000 fine or penalty before they could apply, in
addition to these same fees.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. As an advocate for
legal immigration and also the rule of law, those are not
inconsistent, I might add, it is a real shame we are here today
to investigate the department's attempts to circumvent our
Nation's immigration laws.
If we are going to fix our broken immigration system, we
first have to regain the trust of the American people and that
is a casualty I believe of what we have seen in the last year
or so.
They must believe that the Federal Government is actually
doing its job to secure the border. They must trust our
immigration laws will be fully enforced and that dangerous
criminal aliens will not be released from detention, and they
must trust that we will have an immigration system that is fair
and respectful to the millions of legal immigrants who wish to
enter the United States and pursue the American dream.
It bears noting, we are the most generous country in the
world when it comes to legal immigration. Sadly, the Obama
administration has violated this trust by attempting to
unconstitutionally grant legal status and work authorization to
millions of illegal immigrants in the United States without any
engagement with Congress.
The Obama administration's executive actions I believe are
illegal and we must and will continue to fight them at every
step. Fortunately, a majority of the states and at least one
Federal Judge agree.
As you know, Judge Andrew Hanen, on February 16, issued a
temporary injunction preventing USCIS from implementing the
President's illegal attempt to unilaterally grant legal status
and work authorization to more than four million immigrants.
I just want to refer to a couple of portions of Judge
Hanen's opinion. He said, quote, ``This court finds that DAPA
does not simply constitute inadequate enforcement, it is an
announced program of non-enforcement of the laws that
contradicts Congress' statutory goals.''
He went on to say, ``The Department of Homeland Security
does have discretion in the manner in which it chooses to
fulfill the expressed will of Congress. It cannot, however,
enact a program whereby it not only ignores the dictates of
Congress, but actively acts to thwart them.''
Continuing with Judge Hanen's opinion, he says, ``The
Department of Homeland Security does not seek compliance with
Federal law in any form, but instead establishes a pathway for
noncompliance and completely abandons entire sections of this
Nation's immigration laws.''
It is against this backdrop of illegality that we are here
today to conduct this important oversight hearing and talk
about the potential impact of President Obama's immigration
executive actions. In that connection, I wanted to ask--
perhaps, Mr. Renaud, you may be the person that could best
respond to these questions.
Under President Obama's executive actions, many criminals
who would have been considered--who have been convicted of
serious offenses would be allowed to receive deferred action
and employment authorization.
Based on my reading of the Department of Homeland
Security's directives, some illegal immigrants convicted of the
following crimes would be eligible for the program; for
example, child pornography possession, a state misdemeanor;
child abuse; assault; abduction; false imprisonment; voter
fraud; larceny; robbery; harassment; theft; reckless driving;
and distribution of alcohol to minors.
There are numerous other categories of criminal aliens who
would be eligible for President Obama's illegal deferred action
program because the department has announced that they will not
automatically consider them as removal priorities.
This is shocking and outrageous. Individuals that come to
the United States without authorization and who thereafter
commit serious crimes should not be rewarded with a legal
status and a work authorization, but they should be removed
immediately.
Will you commit today that USCIS will never grant deferred
action and work authorization to an individual who has been
convicted of one of the crimes I have listed?
Mr. Renaud. Senator, thank you for the question. What I
will commit to is that we will and faithfully do our jobs to
administer the immigration laws and policies of this country;
that we take our job seriously; and, that in the proposed
deferred action for parents of Americans and lawful permanent
residents, there were, in fact, more stringent eligibility
requirements than for permanent residents and they were
delineated, I believe, to include an ineligibility for a felony
conviction, for three or more misdemeanors, for a significant
misdemeanor.
Then on top of that you had a discretionary determination
based on a case-by-case review of whether that individual would
receive deferred action.
Senator Cornyn. Mr. Renaud, I know you are in a difficult
position working, as you do, for the field operations for U.S.
Citizenship and Immigration Services, but you did not answer my
question.
I asked you whether the people who committed the crimes
that I have listed would be eligible for deferred action and
work authorization.
Mr. Renaud. I have not reviewed--Senator, I have not
reviewed those crimes or evaluated whether they would or would
not qualify----
Senator Cornyn. You acknowledge that--whether you have
reviewed or not those specific crimes, are you aware that
people who previously would have been remove because of
criminal offenses would be eligible under deferred action
granted ostensibly by the President and given--made eligible
for work authorization?
Are you aware that there has been a change in policy in
terms of removal for some class or category of people who
commit crimes?
Mr. Renaud. Senator, you are outside my field of expertise.
I am not----
Senator Cornyn. I am asking you whether you are aware. If
you are telling me that you are not aware, that is a fair
answer, if you are not.
Mr. Renaud. I am aware of the enforcement memorandum that
was issued by the Secretary.
Senator Cornyn. Mr. Renaud, as part of the current deferred
action program, has USCIS ever granted deferred action and work
authorization to an individual that was convicted of one of
these crimes?
Mr. Renaud. Senator, I do not know the answer to that
question. I apologize.
Senator Cornyn. If evidence of fraud, criminal activity or
terrorism was revealed during the adjudication of a deferred
action application, will USCIS commit to turn over this
information to relevant law enforcement and national security
authorities?
Mr. Renaud. I can speak for the program which we have
ceased implementation of and I believe the answer is--I believe
the answer is yes, were there fraud or national security
concerns, we would cooperate with our colleagues at ICE.
Senator Cornyn. With evidence of fraud, criminal activity
or terrorism is revealed during the adjudication of a deferred
action application, you will commit to turning that information
over to law enforcement and national security authorities.
Mr. Renaud. Senator, I believe that is correct, yes.
Senator Cornyn. Thank you. I personally believe in zero
tolerance for criminal aliens convicted of domestic violence or
sexual abuse. However, under the President's executive action,
USCIS would be allowed to award these individuals with legal
status and work authorization if, quote, ``there are factors
indicating the alien is not a threat to national security or to
security or public safety and should not be, therefore, taken
as an enforcement priority.''
Can you explain why we should not, as a matter of national
policy, embrace a policy of zero tolerance to domestic violence
offenders and sexual predators?
Mr. Renaud. Senator, again, I apologize. I am not a
policymaker. I am not--I am not--I am not prepared nor am I
qualified to respond to that.
Senator Cornyn. Let me just ask, in conclusion, is there
any member of the panel who believes that people who commit
domestic violence or sexual abuse should be permitted to stay
in the country and is an eligible person for deferred action
and given a work authorization? Does anybody believe that that
should be the case as a matter of national policy?
Mr. Renaud. Senator, again, that is not within my official
purview. I just wanted to say, though----
Senator Cornyn. Mr. Neufeld, do you have an answer to that
question?
Mr. Neufeld. I would rather not express my personal policy
perspective.
Senator Cornyn. Mr. Moore, how about you?
Mr. Moore. This is a complex area that I am not qualified
to speak to.
Senator Cornyn. Mr. Chairman, I thank you for having this
hearing, but I hope that as part of our additional oversight
responsibilities, we will continue to delve in more deeply to
the consequences of the President's executive action, because I
think it was sold on the basis of being some sort of benign
gesture when, in fact, part of he consequences are that people
who have committed relatively serious criminal offenses have
been bumped ahead of the line from people who have been playing
by the rules and do not have similar criminal records, and I
think that is a matter that we need to look in further.
Chairman Sessions. I thank you, Senator Cornyn. Justice
Cornyn is very familiar with the law and has high ideals for
it. I think we should seek to meet those ideals.
I am going to offer for the record, relevant to what you
just said, a February 27 letter by Senator Grassley, the
Chairman of the Judiciary Committee, to Secretary Johnson, your
boss, in which he inquires about the murder of four individuals
in Charlotte, North Carolina, including a former contestant for
America's Next Top Model, by Mr. Rangel Hernandez, I believe.
He has been charged with those, first degree murder, and he
allegedly applied for and received--I am quoting from the
letter--``deferred action under the DACA.''
There was some indication that the file noted gang
affiliation possibly. Senator Grassley is asking about that. We
expect your boss to respond to that. A perfectly legitimate
question for the representatives of the United States.
This individual was approved for legal status in the United
States, even though he may have had gang affiliation, and now
has murdered--Senator Tillis, I should--four individuals.
I would offer that for the record. Without objection.
Chairman Sessions. Senator Tillis.
Senator Tillis. Senator Sessions, you actually helped me
set the context for the first question that I was going to ask.
It was about Mr. Hernandez, who has allegedly murdered four
people down in North Carolina, actually in my hometown.
The question I had is are the individuals being vetted and
getting to their background checks before we would provide any
type of status, including people deferred for deportation?
I am just trying to understand how something that, on its
face, seemed like it was obviously an area of concern, what
sort of vetting did he go through and what do others go through
when they are going through these processes?
Mr. Neufeld. I cannot speak to that case in particular, but
in general, the vetting process for DACA requesters consists of
biographic and biometric checks against the TECS system and
also with the FBI regarding the criminal history.
Senator Tillis. The--the checks you are going through
national data bases or State data bases.
Mr. Neufeld. Yes.
Senator Tillis. For whatever reason, that would not have
been identified with this particular person. I think we will
find out the specifics of that case. I also had a question and
it related to capacity.
Mr. Chairman, I understand, I had to go back to another
meeting, but I understand some of my questions were asked.
Chairman Sessions. Thank you for returning.
Senator Tillis. Yes, sir.
Chairman Sessions. We are glad you could come back.
Senator Tillis. It is an important subject.
With the actions that have been taken, which has increased
your caseload--and I know I understand that you are adding some
resources that are largely funded through the fees that you
collect, but what sort of impact do we have?
I think that the Center for Immigration Studies indicated
that USCIS issued 7.4 million permits to non-citizens. About a
third of those were individuals that were identified as
illegal, unqualified or ineligible aliens.
My question is if we have taken the department's capacity
to grant--grant that to some third that were considered
illegal, unqualified or ineligible, is that at the expense of
other people who would have been in the other two-thirds? In
other words, is the capacity being sapped to a certain extent
and was a backlog growing in other areas before these actions
were actually ordered?
Mr. Neufeld. I will take this, if that is all right. We
deal with surges in volumes all the time and so that is one of
the things that associate directors for both operational
directorates, we look at that all the time and we are
constantly looking at filing volumes that, receipt trends, what
our available resources are to deploy to deal with backlogs as
they arise.
With the DACA program, we had a ramp-up period of 60 days
to stand up this program to begin taking in applications and
requests and making decisions. The initial standup of that
program we took on with the existing workforce that we had. It
takes longer than 60 days typically to bring--hire new staff.
Yes, there is an initial impact when there is a surge that
you have not had a chance to really prepare for.
We did then begin the hiring process to acquire the
additional resources that we needed to not only deal with the
surge that we had experienced, but also with the backlogs that
had developed by redirecting some resources.
Senator Tillis. I know Senator Blumenthal mentioned that
maybe there is some concern and worries about those who are
affected by the court decision. Is there also a positive impact
that you have those resources freed up to draw down backlog of
other existing cases?
Mr. Neufeld. The resources that we have have not increased
yet for that program.
Senator Tillis. Presumably, since you are not processing
this population right now, it frees up capacity for what I
assume is some sort of a backlog.
Mr. Neufeld. We continue--in service center operations, we
do adjudicate the DACA requests that are based on the 2012
directive and those continue. We are not redirecting any
resources from there.
The DAPA program has not stood up yet. The expanded DACA,
we were preparing to hire to fill vacancies those additional
positions that we would need, but had not acquired those
additional positions. So they will not be redirected.
Senator Tillis. Thank you. I have another question here. I
guess the Administration claims using its powers of
prosecutorial discretion in order to grant blanket deferral
from deportation to undocumented individuals on a case-by-case
basis.
If that is the case, have there been any instances in which
an individual applying for deferred deportation status has met
the requirements for such deferral as outlined in the
President's 2012 action, but was not given deferral status?
Mr. Neufeld. The 2012 guidelines are just that. They are
guidelines for how to exercise the discretion for requests for
a deferred action. There are a number of criteria and some of
them are very straightforward. You have to be under the age of
31. You had to have been under the age of 16 when you first
arrived in the United States. Those are pretty clear-cut.
There are others, such as you cannot be a threat to
national security or public safety, those involve much more an
act of judgment and discretion on the part of the adjudicator.
Yes, we have denied requests for deferred action based on
an adjudicator's assessment about their potential threat on
public safety, as well as some cases that have come to our
attention in reviewing the requests where they meet all of
those--the guideline that are enumerated in the 2012 guidance.
Nonetheless, if, for example, we have cases where they had
committed fraud and requesting other immigration benefits and I
know that those cases have been denied as a matter of
discretion in reviewing the totality of the circumstances of
the applicant who is making the request.
Senator Tillis. Thank you. Thank you, Mr. Chairman.
Chairman Sessions. Thank you, Senator Tillis.
Senator Tillis. Mr. Chairman, I would just say I really do,
in the incident that has hit literally close to home here, I do
expect an answer back and join Mr. Grassley in his call for
getting more details, and appreciate him doing that.
Chairman Sessions. I know you are interested in it and I
did not realize or was not paying attention to your return. I
would have made reference to it.
This is the way I see it. You have asked to do more than is
physically possible for your agency to do. You are not going to
be able to process these cases in any effective way.
Mr. Palinkas is exactly right. I have been a Federal
prosecutor for 12 years--15 years. I know how the system works.
You just do not have the ability to do that. The Senator is
asking this question because it is true.
You say, well, in your minds, as good public servants, you
are going to do the best you can under the orders you have been
given, and I understand that. What I would say is, from the
perspective of this side of the desk, is that the President
should never have asked for that.
No President should demand amnesty, legal status, for
millions of people unlawfully in this country when there is no
sufficient staff to do the kind of background we have been
doing for people who apply lawfully.
I have just got to tell you, the President made a big
mistake here. That's where--this is just part of the
controversy. It is just part of it. Congress has no duty and no
responsibility to fund it and, indeed, we should block funding
and stop it.
Our colleagues have filibustered any bill that funded a
program that would have stopped this kind of funding. That is
how we got to this sad end where I guess we will go forward
with funding for the program, and now the court has stopped it.
It is a complicated mess.
I want to ask about, because my understanding--I guess, Mr.
Renaud or Mr. Neufeld, I will let you choose who to answer. My
understanding is that CIS collects biometrics, fingerprints,
the bread-and-butter of American law enforcement, fingerprints
from DACA applicants and runs an FBI fingerprint check through
the integrated automatic fingerprint identification system; is
that correct?
Mr. Neufeld. Yes.
Chairman Sessions. You do the fingerprint check. Among
other things and the time it takes to process somebody, that is
part of the $85; is that right?
Mr. Neufeld. That is correct.
Chairman Sessions. They have to be fingerprinted. Somebody
takes them in. They have some sort of question asked and that
is processed and sent off and then you get a report back and
somebody reads it and studies it. That is kind of the way it
works, right?
Mr. Neufeld. Yes.
Chairman Sessions. Is it not true that, as your standard
operating procedures on DACA notes, that participation by State
and local agencies in the FBI fingerprint system is not
mandatory. That those fingerprint checks do not contain records
from every jurisdiction.
Mr. Neufeld. I believe that is correct.
Chairman Sessions. This is on page 37 of your standard
operating procedure for DACA. I have got to tell you, this
Administration's actions at times take my breath away.
We got a report back yesterday or today from the President.
If he chooses this commission, task force on 21st century
policing, and they are supposed to tell us how to improve
policing in America.
One of the things they say in that report is the U.S.
Department of Justice should remove civil immigration
information from the FBI's National Information Center data
base.
Do you have any idea why that information should be removed
and cease to be collected as it has in the past from the FBI
data base?
Mr. Neufeld. I do not.
Chairman Sessions. Would it not be helpful when you are
prosecuting or investigating a case, Mr. Renaud, to know that
they have been arrested previously for entering the country,
somebody has?
Mr. Renaud. Senator, thank you for the question. I think a
couple of things I just want to make sure we are clear on.
One is we use the same IAFIS process for vetting of
fingerprints for a DACA recipient that we do for any other
individual that we fingerprint. Chairman Sessions. I understand
that.
Mr. Renaud. We use IAFIS, which is the FBI criminal
history, and we put them through IDENT, which is the Department
of Homeland Security history.
I do not know--I am not familiar with the paper you are
holding, but certainly----
Chairman Sessions. I am not happy with this report. I am
going to offer it for the record. It just came out yesterday, I
think, or today.
President's Task Force on 21st Century Policing, an
executive branch of this country's group is asking that we
remove immigration information. I think that is unthinkable. It
is just an example of a commitment to making sure law becomes
unenforceable.
The question. Regardless of that, isn't it helpful when you
run an NCIC check that you know whether or not a person has
been arrested one, two, three, four, five times previously for
immigration violations?
Mr. Renaud. Senator, I think irrespective of where we get
that information, that it is important information to have in
adjudication.
Chairman Sessions. I do not think there is any doubt about
it. The review also says, ``In the view of this task force,
whenever possible, State and local law enforcement should not
be involved in immigration enforcement,'' closed quote.
It is absolutely clear that a law officer can detain
somebody and turn them over to the Federal Government if they
have entered this country unlawfully, crossing our borders.
They can be detained a reasonable time to be turned over and we
have a 287G program designed to facilitate that that states
acted on. Alabama had their people trained. I think most states
did.
This President has abandoned it. President Bush was
reluctant at first, I think, but then they used it and liked
it. It makes sure that people are treated fairly and the
officers understand what the rights of this person are and how
to process it in a proper way.
They cannot deport somebody. They cannot prosecute
somebody. They can arrest somebody for a robbery on a military
base and hold them until the Federal people come and prosecute
them, even though they cannot prosecute them themselves.
I just want to tell you there are a lot of problems out
here that we are concerned about. What about name checks? That
is a different thing than the fingerprint checks and sometimes
it provides additional information. I understand that DACA
applicants are not being--that the FBI data system is not being
queried for name checks; is that right?
Mr. Renaud. Senator, as I mentioned a little bit earlier,
we do have a layered approach to security checks. Some of
that--the information that would be in a name check result
would show up in either an IDENT or a TECS check.
The answer to your question is much like many of our other
applicants, deferred action requesters, do not undergo
typically an FBI name check.
Chairman Sessions. All right. Look, we all have some
frustrations on this and I am not blaming you guys, but you are
public servants and we are asking questions and I would like to
follow through with some more of these just to get clear, in my
mind, how you are operating. I would appreciate that you try to
help us as quickly as we can to get to that.
Senator Tillis, did you have another round?
Let me ask this. You do not use name checks, which a lot of
police and law enforcement officers do in addition to a
fingerprint check when they are running an inquiry. Do you know
if the plan is with the DAPA applicants, that they would be
not--that a name check not be used for them?
Mr. Renaud. Senator, we run name checks on our status
granting benefits, particularly naturalization applications and
adjustment of status applications.
There are no other applications that I am aware of that we
routinely run FBI name checks.
Chairman Sessions. Which would mean that these DAPA are not
going to be run, right?
Mr. Renaud. That is correct, sir.
Chairman Sessions. I am concerned about the situation of
how you process the applications. Everybody that applies for
relief under DAPA, they are not going to come to Crystal City
to file their papers and be interviewed, right? Who will answer
that? Is that you, Mr. Neufeld?
Mr. Renaud. I think you got me again, sir.
Chairman Sessions. You are a busy man today. They are not
going to come to Crystal City, right?
Mr. Renaud. The plan before the injunction, you are
correct. They would apply--they would request deferred action
through the mail.
Chairman Sessions. They request it through the mail. Can
this be electronically transmitted or will it have to be in an
actual form of an original document mailed to Crystal City?
Mr. Renaud. We did not plan on initially providing
electronic filing or submission of evidence.
Chairman Sessions. Is that a firm decision or do you know?
You should know. Is that a firm decision?
Mr. Renaud. The firm decision of--prior to the injunction,
the firm decision was that if we were to go live in May with
deferred action for parents of Americans, we would not have
gone with electronic filing. It would have been predominantly a
paper adjudication.
Chairman Sessions. Would things like rent receipts or a
diploma of some kind filed in a postal envelope, mailed to you,
is that the kind of thing you would be looking at?
Mr. Renaud. Thank you for the question. I think that as
with many of our applications, when someone needs to establish
under the DAPA rubric, residence, for example, then we would--
to a certain extent, we would get what they would--what they
chose to submit.
We would typically try and put out information through our
website and other outreach that indicated to potential
requesters of what evidence would be most compelling and we
would also include that in training materials and in standard
operating procedures for our adjudicators.
Much of that work had not been done at the time of the--at
the time of the injunction. At this point, it is not going
forward.
Chairman Sessions. The individual sends you some documents.
How long, under the President's order, did you have to be in
the country before could claim the benefit of this? It is an
advantage if you came unlawfully longer ago than if you came
recently.
Mr. Renaud. The requirement in the Secretary's memo was
that they were present in the United States prior to I believe
1/1/2010. I think that is right.
Chairman Sessions. January 2010.
Mr. Renaud. Correct.
Chairman Sessions. It is January 2015, past. We are talking
about a number of years ago. They have got to prove they have
been here, correct?
Mr. Renaud. Senator, that is correct.
Chairman Sessions. Crystal City is going to evaluate the
documents.
Mr. Renaud. That is correct.
Chairman Sessions. What if it looks like it is a copy of a
high school diploma with a similar name? He applies as John R.
Smith and the diploma says John Smith. How do you evaluate
that? He says this showed I graduated from high school six
years ago or I entered the country and had a job six years ago
or I resided at this apartment six years ago. How do you decide
that? You do not see a person sitting across from you and you
cannot ask questions.
Mr. Renaud. Senator, through our training, through our
standard operating procedures, and through the expertise honed
over time with our adjudicators, they are trained to evaluate
evidence, to ferret out fraud, and to use their judgment in
determining whether someone has met the preponderance of
evidence standard to establish that they meet one or more of
the eligibility criteria.
It is a judgment call on the part of the----
Chairman Sessions. You remember the historic case about the
police officer search that turned up a bunch of drugs and he
said, ``Why did you search it,'' and he said, ``I had a psychic
feeling that there was an illegal activity going on.'' They
threw that out.
You have to be able to articulate what it is, right? If the
officer is feeling good that morning and he sees a Xerox copy
of a name with no middle initial or with a middle initial that
is different from the applicant, what do they do?
Mr. Renaud. My understanding, again, and the standard
operating procedures have not been written, but certainly we
would adjudicate eligibility under that particular criteria
based on the totality of the evidence, not one document and we
would use their--we would rely on their training and their
judgment to determine whether the preponderance of evidence is
met.
If they believe that there is some fraud or
misrepresentation, we have embedded--we would have embedded
fraud detection national security professionals who would have
been able to evaluate and more closely look for fraud and other
indicators on that document. This is what we are good at.
Chairman Sessions. You are hiring a bunch of people with no
experience, right, that are going to be reviewing parts of this
process. That is why I asked you about that earlier. That is
what Mr. Palinkas was expressing concerns about.
Mr. Renaud. We offer job--we offer jobs to--of the 329
selected, 162 of them were veterans. We think they have
experience. We hired the most experienced. We offer tentative
employment.
Chairman Sessions. Veterans of Homeland Security?
Mr. Renaud. No. Veterans from the United States military
and we believe that their judgment, with our training, we
believe that we would have been successful in implementing this
program to the best of our ability, sir.
Chairman Sessions. Second, look, I am just asking
questions. You did not set the policy. This is not going to
work. You know it and I know it. That is how the person
probably cleared here. Let us say there was evidence in North
Carolina of this individual that he was a gang member. Would
any of your adjudicators--are they going to go out and
investigate that before they give him legal status?
Mr. Renaud. Again, I am not going to comment----
Chairman Sessions. Just a yes or no, please. Are you going
to call people out to investigate that, interview witnesses?
Mr. Renaud. I do not know the answer to that question.
Chairman Sessions. The answer is no. You do not have any
staff to go do those interviews and you are not going to do
them. Are you doing any on DACA now in those kind of
circumstances?
Mr. Renaud. We have referred cases for interviews for DACA
and in certain cases, my understanding and perhaps Mr. Neufeld
could answer more definitely, is that we do coordinate with our
colleagues in ICE where there are particular issues regarding
public safety. Chairman Sessions. For the most part, you are
going to get an envelope with papers and you will run a
background check that may pick up criminal activity.
But Senator Cornyn pointed out what about a series of DUI--
say it is a DUI, a reckless driving and a marijuana possession.
Under your standards, would they be admissible?
Mr. Neufeld. I can speak--I have got experience with the
DACA program existing and that as my colleague noted, the
requirements--one of the requirements is not to have been
convicted of a felony, there misdemeanors, or a significant
misdemeanor. Generally speaking, DUI, you are out.
Chairman Sessions. DUI----
Mr. Neufeld. Yes.
Chairman Sessions. [continuing] Counts as being out. What
about marijuana possession, cocaine possession, plead to a
misdemeanor, cocaine sale charge, pled to a misdemeanor?
Mr. Neufeld. Sitting here today, I do not know how all of
those would measure up against the significant misdemeanor----
Chairman Sessions. Yes, you do.
Mr. Neufeld. No, I do not. I really do not. I would
actually think that--my gut would be that those would be
disqualifying, but I do not want to say definitively because I
am not 100 percent sure of that as I sit here.
Chairman Sessions. All right. Now, if a person--what if
somebody files a lawsuit against you guys and says the policy
says you have got to be convicted of a felony or serious
qualifying misdemeanor and this does not qualify?
Mr. Neufeld. Our attorneys tell us that this is a
completely discretionary program and so we can make these kinds
of calls without--not without fear that it will be litigated,
but that we will be ultimately successful in those litigations.
Chairman Sessions. I think, in general, what we are going
to find is--would you submit for the record how many
independent investigations are being done to determine DACA
qualification? Can you tell us how many?
Mr. Neufeld. I should be able to provide to you information
about the number of referrals to ICE that we have made. I could
not give you the outcome of those referrals.
Chairman Sessions. That would be of value. Of course, you
do not have any officers, Mr. Renaud, to investigate that. They
will be in Crystal City or whatever. They do not go to San
Diego or Miami to investigate an allegation about somebody.
Mr. Renaud. Senator, we do not have investigators.
Chairman Sessions. You do not have them. It is not your
fault. You just do not have them.
The standard is preponderance of the evidence. That is
about the lowest--that is the lowest legal standard. It just
means on a scale, you think it tilts this way; is that correct?
Preponderance of the evidence.
Mr. Renaud. Yes. Preponderance of evidence, to me, means
more likely than not.
Chairman Sessions. Really it is just more likely than not
is the classical legal definition; is that correct?
Mr. Renaud. I will not disagree with that.
Chairman Sessions. A person submits a document and they
assert that they have been in the country for six years and
they worked and they submit a W-2 form from three years ago and
a rental receipt from six years ago. What do you do then?
Mr. Neufeld. In the DACA context, if there was nothing in
between, we would probably issue a request for additional
evidence for the intervening years.
Chairman Sessions. Is it not pretty easy to--but a valid
rent receipt would be sufficient?
Mr. Neufeld. Not standing alone. In the context--considered
in context with other evidence, it could be helpful.
Chairman Sessions. All you have got to do is prove by a
preponderance of the evidence, more likely than not, he said he
was here and that is his rent receipt. You are not going to go
out and call the landlord, are you, to see if that is correct
or if he could identify the person, are you?
Mr. Neufeld. Not generally.
Chairman Sessions. No. That is not going to happen.
Mr. Neufeld. As I said----
Chairman Sessions. It is just too many people. You have
asked for too many processes and the person sitting here is not
an investigator. He is a veteran from the Army.
Mr. Neufeld. I want to be clear. We would not approve a
case simply on the basis of single rent receipt.
Chairman Sessions. What else would you look to have? What
would you normally expect would be strong documentation?
Mr. Neufeld. We would look to at least something to support
their presence every year that is required.
Chairman Sessions. They would have to be continuously in
the United States, not just here six years ago, returned for a
year and come back for four.
Mr. Neufeld. I believe in the DACA context, the requirement
for continuous presence is for the last--I am forgetting the
time period. For DACA, it is 2007 and onward. Then they have to
establish that they established a residence while under the age
of 16.
Chairman Sessions. What if the applicant came here, brought
a child, went back to their country, brought a 13 or 14-year-
old child. The 14-year-old child stayed with the uncle and
continuously received DACA benefits and now applies for their
parents to come. They would not be able to come unless they
were in the country, correct?
Mr. Neufeld. There is no provision for DACA recipients to
bring their parents.
Chairman Sessions. If they are here already, then they can
apply for status.
Mr. Neufeld. Excuse me. The parents?
Chairman Sessions. Yes.
Mr. Neufeld. For the injunction--well.
Chairman Sessions. Right.
Mr. Neufeld. Even in the DAPA context, they have to show--
and this is where I am getting out of my area--but they have to
show that they are parents of U.S. citizens or lawful permanent
residents. not DACA specific.
Chairman Sessions. The child was born here and the parents
returned and left the child with an uncle or brother or
something. Then if they are here, they have to prove they were
here for five--since 2010.
Mr. Renaud. Under DAPA, Senator, yes.
Chairman Sessions. What will you accept as proof of the
child's citizenship?
Mr. Renaud. We would--there are obviously a number of ways
that a child can become a citizen. We would look for--
generally, the best evidence of birth in the United States is a
civil registration of birth that is timely registered. We would
look to our own records to see if that child has naturalized or
become a citizen through a derivative status.
Chairman Sessions. How do you verify the birth certificate?
You will not see--the individual will not come there. You get a
document. Everybody would have to submit a birth certificate or
some other document. Every DAPA, every parent who is seeking a
benefit would have to submit a birth certificate of the child.
Mr. Renaud. Under DAPA, again, reminding that we have
stopped----
Chairman Sessions. Right. I know you have.
Mr. Renaud. At this point, I am speculating because these
rule and procedures--these procedures have not been written
yet, but typically, yes, we would--one of the eligibility
requirements under DAPA would have been that the deferred
action requester, the parent, would need to show that the--that
they had a child as of--as of November 20, I believe, who is a
citizen of the United States or a lawful permanent resident of
the United States and we would look for either evidence in our
own records or evidence that they could submit, such as a copy
of a permanent resident card for permanent resident status or
we would look for a birth certificate or evidence of
citizenship or naturalization.
Mr. Neufeld. That is similar to what we would do in a visa
petition context. If that child was over 21 and wanted to bring
in their parent under the existing statutes, they would submit
a petition and one of the pieces of evidence that we would
require would be evidence of citizenship of the child. We make
those kinds of----
Chairman Sessions. Let us say that an individual is not
your child and has the same last name and you submit that birth
certificate and you get a mailing and it says ``this is my
child's birth certificate''?
Mr. Renaud. Well, it would need to----
Chairman Sessions. Is that all it takes, when maybe it is
not their child?
Mr. Renaud. Senator, as with other immigrant--family based
immigration applications, it is--the burden of proof is on the
petitioner or the requester in the deferred action context to
establish that--to establish the facts.
A birth certificate showing--we would--we would look for--
if it was a U.S.-born child, we would look for a timely
registered civil document that showed the child's name and the
DACA requester's name as a parent. If one or more of those data
points were not--were not on the form or the form was not
timely registered, we would look for additional--we would
request additional evidence of relationship.
Chairman Sessions. Let us say you were here, a person or
adult had been here for a number of years, 10 years, but they
did not have a child born, but they mail in a packet to you
with a birth certificate and an affidavit.
Do you still have to submit an affidavit with that?
Mr. Renaud. They may.
Chairman Sessions. You do not even require it. You require
verification of the application?
Mr. Renaud. Senator, we do not find--I am not sure who the
affidavit is from or what it is saying. We prefer not to have
affidavits because we do not--I mean, it is not the most--it is
not the strongest piece of evidence that we can use to
establish eligibility.
Chairman Sessions. All right. They submit a birth
certificate and declare ``this is my child.'' In their
application, do they say this is the birth certificate of my
child and I certify I am telling you the truth under penalty of
perjury or they just submit it with a little handwritten note
that says ``this is my child's birth certificate''?
Mr. Renaud. Typically, although the form for DAPA has not--
is not finalized, most of our forms, DACA forms or other forms,
collect information and conceivably we would have collected--we
are planning to collect on the form the name of the requester,
the name of the child that they claim as the qualifying child,
and they would sign that under the penalties of perjury.
Chairman Sessions. All right. Is it your plan that they
would submit a birth certificate along with that?
Mr. Renaud. That would be my expectation, yes. For a child
born in the United States or, frankly, for a child born
anywhere, yes.
Chairman Sessions. Would it have to be a certified birth
certificate or can it be a copy of one?
Mr. Renaud. We generally accept copies.
Chairman Sessions. Would you take copies of a high school
diploma or an employment check, pay stub of some kind?
Mr. Renaud. Thank you for the question, Senator. We
typically require copies, but reserve the right to request
originals if we have questions about the authenticity of those
documents.
Chairman Sessions. The operating procedures, as I
understand it, on page eight, states that affidavits may be
used to show that someone meets the five-year continuous
residence requirement or to support a shortcoming in
documentation with respect to the brief, casual and innocent
departures during the five years of continuous presence.
A shortcoming in documentation can be filled with a--to
prove your five-year continuous residence can be filled with an
affidavit.
The evidence, if you have got an affidavit and you have got
some general supporting documentation, you are in, right?
Mr. Renaud. Senator, I am not sure what you are reading
from because the standard operating procedures for DAPA have
not been written.
Chairman Sessions. This is September 13, this is DACA. Yes,
DACA, excuse me, in 2012, your procedures. Is an affidavit in
itself preponderance of the evidence?
Mr. Renaud. In the DACA context, we accept any evidence
that anybody wishes to submit. We do not give much value in
general to affidavits, depending on what they are submitted
to--as evidence.
Chairman Sessions. You are in a predicament because the
President has directed under his order that they should be
approved if there is a preponderance of the evidence. You do
not have any lawyer that is cross-examining this document. You
do not have an investigator to go and look up and call back to
this company they claim to have worked for, right?
Mr. Neufeld. Generally speaking, no.
Chairman Sessions. You do not.
Mr. Neufeld. In the context that--I believe the context
that you are reading that in, the affidavit would be accepted
to explain a reason for a departure within the time period in
which they are required to have continuous physical presence.
Chairman Sessions. Otherwise there is no affidavit. Can you
say with certainty that the application for DAPA would be
verified under oath, under penalty of perjury, I sign on the--
Mr. Renaud. I think we--Senator, I did not mean to interrupt, I
apologize. I think that we can say with certainty that every
application submitted to USCIS requires the signature of the
moving party and that is signed under the penalties of perjury.
Does it have the language over the signature?
Mr. Renaud. I was just handed a form.
Chairman Sessions. I hate to be taking this time, but I
just think we in Congress need to understand, as I said at the
beginning, the details of all this.
I told my colleagues who offered the Gang of 8 bill I would
vote for their talking points. It was when we read the details
of the law that I could not support. Go ahead.
Mr. Renaud. I do not have the form, I just have the
instructions. Yes, I believe that there is a penalty of perjury
of statement. They certify that everything is truth--truthful
and accurate under the penalty of perjury and they sign under
that statement.
Chairman Sessions. Under DACA, which you have been
processing since 2012-2013, if you submit a false document or
you revealed, can you be prosecuted for that?
Mr. Renaud. Yes.
Chairman Sessions. If you submit a document that proves you
have lied to get government benefits or status in the United
States, under the policies, you are not supposed to report that
for prosecution, right?
Mr. Neufeld. We can share information with law enforcement
authorities regarding criminal offenses.
Chairman Sessions. Not including false documents to get
into the country or work that are revealed in this process,
correct? Are they not basically given amnesty from any false
documentation they may have used that you discover in this
process?
Mr. Neufeld. We typically would not refer cases to ICE if
the evidence was about, for instance, using a Social Security
number that did not belong to them.
Chairman Sessions. Thank you for this information. We are
obviously not at the bottom of it, but, Mr. Renaud and Mr.
Neufeld, at some point, there will be standard operating
procedures for DAPA formalized, correct? If this goes forward
and the court injunction is not sustained.
Mr. Neufeld. Yes.
Mr. Renaud. That is my understanding, yes.
Chairman Sessions. Would it be in writing?
Mr. Renaud. Yes. We put our standard--when we draft
standard operating procedures, they are in writing and they are
used as a training mechanism.
Chairman Sessions. You will make those available to the
Committee, yes?
Mr. Renaud. I would--I do not know what is usual and
customary, but we will follow all proper protocols.
Chairman Sessions. I think the U.S. Congress would be
entitled to know the policies that have been issued and I am
sure we will get that.
What I want the American people to know is the burden
placed on you is such that you will not be able to fulfill the
basic requirements that we expect to be fulfilled when a person
applies to come to the United States and it is less than we are
providing now for people to make legal applications.
In fact, people who have already violated the law are
getting less scrutiny than people who are applying to come.
Hundreds, millions are turned down on a yearly basis for one
reason or another, but yet if they had gotten through, past the
border or overstayed a visa and were going through this
process, they would likely be approved.
I think, as Senator Cruz says, we have got a double
standard here. We are indeed rewarding those who unlawfully
enter over people who come lawfully in a number of different
ways and I think it is dangerous in terms of national security.
As many of the law enforcement officers have told us, Chris
Crane at ICE, the head of the ICE Association, says this will
make us less safe. Mr. Palinkas says there is no way we can
process these applications objectively. It will make America
less safe.
That is the problem we have got. It is not so much your
problem, but the President started it and he has tried to
execute something that is not executable properly under the
current conditions, I think. We will just have to continue to
monitor it.
We will keep the record open for questions.
Senator Lee would like to enter into the record a leaked
2010 memorandum from the Department of Homeland Security that
discusses the use of advanced parole for illegal immigrants. It
is something he has spent a lot of time on and I think people
need to know things are not in accord with what the President
says, and Senator Grassley, our Judiciary Chairman, has
submitted his recommendations.
I thank all of you for coming. We are dismissed, I know you
are grateful to know.
[Whereupon, at 5:21 p.m., the hearing was concluded.]
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