[Senate Hearing 114-873]
[From the U.S. Government Publishing Office]
S. Hrg. 114-873
OVERSIGHT OF THE DEPARTMENT
OF HOMELAND SECURITY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 28, 2015
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Serial No. J-114-14
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-429 WASHINGTON : 2023
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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
C O N T E N T S
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APRIL 28, 2015, 10:03 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 1
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 3
WITNESSES
Witness List..................................................... 51
Johnson, Jeh, Secretary, U.S. Department of Homeland Security.... 5
prepared statement........................................... 52
QUESTIONS
Questions submitted to Secretary Johnson by:
Senator Grassley............................................. 100
Senator Lee.................................................. 114
Senator Cruz................................................. 61
Senator Flake................................................ 94
Senator Vitter............................................... 122
Senator Perdue............................................... 116
Senator Tillis............................................... 121
Senator Leahy................................................ 113
Senator Feinstein............................................ 90
Senator Schumer.............................................. 120
Senator Franken.............................................. 98
ANSWERS
Responses of Secretary Johnson:
Answer to Question 21........................................ 126
Exams Spending:.................................................. 139
Fraud Account Spending, Question 22 from Senator Cruz:........... 143
H-1B Spending:................................................... 144
USCIS Obligations Fiscal Year 2009-2015:......................... 145
USCIS Filing trends to QFR 23 compiled August, 20, 2015:......... 146
USCIS Filing trends to QFR 23 compiled August, 20, 2015:......... 152
H2B Approvals and Denials Fiscal Year 2013-Fiscal Year 2015:..... 158
Sacramento, California FFRMS Listening Session Attendees:........ 162
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Benny Martinex Statement 77
EPIC Intelligence Assessment 80
OVERSIGHT OF THE DEPARTMENT
OF HOMELAND SECURITY
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TUESDAY, APRIL 28, 2015
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:03 a.m., Room
226, Dirksen Senate Office Building, Hon. Charles E. Grassley,
Chairman, presiding.
Present: Senators Sessions, Cornyn, Cruz, Flake, Perdue,
Tillis, Schumer, Durbin, Whitehouse, Klobuchar, Franken, Coons,
and Blumenthal.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Chairman Grassley. Thank you, Mr. Johnson, for coming.
Oversight is a critical function and a constitutional
responsibility of our branch. Every year, this Committee tries
to invite the Secretary of Homeland Security to brief us on the
State of affairs at that Department. It is an opportunity to
question the administration's policies, as well as an
opportunity for the Department to take responsibility for its
actions.
It is a pleasure to have Secretary Johnson here. This is
the first opportunity for our Committee to question him
publicly since the President's executive action on immigration
announced in November.
Even though there is an injunction against the executive's
actions, we can still get a good idea of what to expect from
the enjoined programs based on the way the Department has
implemented the DACA program. It appears, for example, that
applications for deferred action are being rubber stamped,
evidenced by the fact that criminals and gang members are
receiving special benefit despite supposed policies against it.
Take, for example, the case of a DACA recipient in North
Carolina, Emmanuel Rangel-Hernandez, who is accused of
murdering four people. Last week, the Department admitted
Rangel-Hernandez had received DACA, despite his gang membership
which was known to adjudicators and despite being in
deportation proceedings.
The Agency response indicated a lap--lapse in the
processing of Rangel-Hernandez's application, however, it is
not yet clear who ultimately made the decision to approve the
application but we need to get to the bottom of it. We know
that the Agency has terminated 282 DACA requests because of
gang and/or criminal issues, so this appears to be a bigger
problem.
This tragedy compels the question, what background checks
are in place and are they adequate to ensure benefits are not
being provided to those who pose a threat to homeland and
public safety, and does this administration truly have a zero
tolerance policy for granting immigration benefits to criminals
and gang members, as suggested by the President?
The Committee will also want to hear from the Secretary
about the proposed expansion of DACA and why the Department
provided over 100,000 DACA work authorization extensions,
despite assurances that lawyers gave the Federal court that it
would not implement any aspect of the President's executive
action until February 18, 2015.
Whether discussing the 2012 DACA program or the 2014
executive actions, there remain questions about the legality of
the President's actions. There are also questions about how the
Department will fund the program and whether legal immigrants
will suffer due to the prioritization for benefits of people in
the country illegally.
The Secretary must also answer as to why this
administration is allowing people here illegally to be put on a
path to citizenship, which is clearly a constitutional
responsibility of Congress. This path to citizenship is
afforded through the administration's use of advanced pro
considering--encouraging DACA applicants to take advantage of.
This loophole will set a dangerous precedent that will
allow lawbreakers to obtain the benefits of lawful, permanent
residence and citizenship after showing a total disregard for
American law. One thing seem to be very clear: there is little
will or desire by the administration to enforce the laws on the
books and back up agents in the field who swear to uphold the
law.
The administration needs to answer for the release of
criminal aliens into the community. In Fiscal Year 2013, the
Department released from detention over 36,000 convicted
criminal aliens in removal proceedings or after they had been
ordered removed, and in 2014 it released 30,558 convicted
criminal aliens. They had convictions ranging from homicide,
sexual assault, kidnapping, to aggravated assault, to drunk
driving.
According to ICE statistics, 56.8 percent of the 30,558
releases in 2014 were purely discretionary. The remainder were
due to court mandates and the ability to obtain travel
documents. Why did the administration release almost 60 percent
of the criminals in their custody and what are they going to do
about it? I expect the Secretary to address that today.
I expect the Secretary to also address the problems of the
EB-5 immigrant investor program. Not only are these--there
gaping holes that risk our national security, there are serious
management problems that were highlighted by the Inspector
General. The IG laid out how preferential treatment was granted
to those well-connected.
It is very clear that the Secretary does not plan to hold
the former Director, who now sits in the number-two post,
accountable for his actions. Instead, it appears that the
violations of ethical conduct will go unpunished, all while
agents and adjudicators in the field are being reprimanded and
threatened if they do not get to yes and follow the President's
policies.
I would also like to hear Secretary Johnson's thoughts on
combatting an array of national security issues that the
country faces. The rise of ISIS, of course, presents a
significant threat to the homeland. This past weekend it was
reported that the Federal Government is actively investigating
an ISIS plot to commit a terrorist attack inside the United
States, perhaps by targeting uniformed personnel in California.
The Transportation Secretary and TSA alerted local law
enforcement to be on the lookout and to increase security.
Earlier this month, there were a number of arrests of American
citizens for their involvement with ISIS. The Justice
Department has also alleged that ISIS helped to train a man
from Ohio. The man had traveled to Syria and was directed to
return to the United States and commit a terrorist attack here.
Other individuals, including a Kansas man and two people in
New York, were allegedly inspired by ISIS propaganda. Numerous
other Americans have been arrested on the way to the airport as
allegedly attempting to travel to ISIS.
The President has downplayed the threat posed by ISIS, but
it reportedly has billions of dollars and controls significant
territory and is executing innocent men, women and children
across the Middle East, including Americans. This is obviously
a threat that requires a serious and sustained response to keep
our homeland safe.
Another threat I expect the Secretary to address is ever-
increasing risk of cyber attacks. News reports are filled with
shocking examples of the Federal Government's lack of
preparedness against the threat. It was reported this past
weekend that the President's unclassified email was hacked in
late 2014.
Defense Secretary Kerr recently disclosed that earlier this
year that Russian hackers accessed an unclassified Pentagon
computer network. Moreover, a recent Government Accountability
Office report found that DHS lacked a strategy for protecting
government buildings and access control systems from intrusion
by hackers.
Cyber security cannot be on the periphery of our national
security strategy any longer. It has to be at the center. There
are many issues to discussion today, and I thank the Secretary
for being here.
I am told that Senator Leahy cannot come, and I am willing
to call on anybody on that side of the aisle. Go ahead, Senator
Schumer.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. Thank you for choosing me, among all the
other choices, first. I appreciate that very much. [Laughter.]
I thank you, Mr. Chairman. Welcome, Secretary Johnson.
Secretary, it is always a pleasure to see you and speak with
you about the critical issues confronting our Nation. As a
fellow New Yorker, I am proud of the work you have done since
being confirmed. I think most Americans join me. You have done
a great job.
I think I can speak for our friends on both sides of the
aisle, you are always available, you are always candid, you ask
the right questions, you give answers when we answer questions,
so you are a credit to your Department and to the country. Your
depth and breadth in counter-terrorism and defense issues has
served the Department very well.
I want to tell you, you have a great staff. They hear from
me constantly. New York is a center, a terrorist target. New
York, we have all of the Sandy issues and defense issues, and
your staff is fabulous. I thank you for that.
We all know that DHS is tasked with an enormous range of
responsibilities, from guarding our borders and coastline to
administering immigration, responding when disaster strikes,
shielding the President, protecting our airports, securing the
homeland. It is a huge job.
In my State, from New York to Buff--New York City to
Buffalo and all along the northern border, the Department's
work directly impacts our economy as well as our security.
Whether it's the Peace Bridge in Buffalo, the JFK International
Airport, Hurricane Sandy relief efforts, DHS's work is vital to
New Yorkers and your dedicated civil servants who fill these
responsibilities are essential.
Unfortunately, we had an appropriations battle where we
fought from the beginning of the year and we emphasized time
and time again that 90 percent of DHS personnel would be
declared essential in the event of a Department-wide shut-down.
That meant they would have to work without pay unless Congress
got its act together.
It befuddled me how so many people could want to hold up
DHS funding when you have so many vital issues at stake
unrelated to immigration because the President would not do
what it wanted. It was hostage-taking at its worst, and I am
glad the Department did not shut down. I am relieved, too, that
you were able to keep your hands on the helm during those
difficult times.
I want to close by addressing two issues that my dear
colleague Senator Grassley has addressed. First, is ISIS and
terrorism. There are new terrorist threats. Believe me, as a
New Yorker who lived through 9/11, knew people who died, I know
that.
I would say this to my colleagues. With the new threats and
the changing threats, we ought to be taking our hat off to the
Secretary, his people, and all the people in the CIA, DoD, NSA
who do an amazing job. It is not an accident that, praise God,
we have not had a 9/11-like incident in America.
In fact, just about every--with the exception of Boston,
which was unique. Just about every major terrorist incident has
been thwarted ahead of time, as Senator Grassley talked about.
That is not an accident. That is not an accident.
I think that the men and women who work for you, CIA, DOD,
NSA and all the other agencies, FBI, deserve a tremendous
amount of credit. They are wonderful. They are like our
soldiers. They are wonderful civil servants. I have talked to
so many of them who are truly dedicated to preventing, God
forbid, another terrorist attack on our homeland. So I salute
them, and certainly questions should be asked, but let us not
forget to give a little praise where praise is due.
Second, on immigration. You know, I find it truly
befuddling about my colleagues from the other side of the
aisle. They cry out against a broken border. The bipartisan
immigration bill passed. Senator McCain and myself, the Gang of
8, does more to tighten up the border than any proposal made by
the other side. More than any.
We talk about a broken system but our colleagues are just
happy to let the status quo go on, where employers are allowed
to hire new illegals. Our bill stopped that with things taken
from Jeff Session's book, E-Verify and things like that. We get
a lot of complaints that the President is moving forward on
immigration but we have no activity, no solutions from the
other side of the aisle, only complaints. That is not
governing.
They are in the Majority, they have a responsibility to
start governing on this issue instead of just complaining when
the administration, because of the paralysis in Congress on
this issue, not caused by Democrats, blocks us from moving
forward.
I would just say you will hear a lot of those complaints,
but let us all bear in mind that this Senate, bipartisan, came
together on a solution that dealt with border, dealt with
illegals crossing the border, dealt with all of the issues we
faced. It had overwhelming support in the country. A majority
of Republicans supported the bill. But because of a hard right
few, we have been unable to pass a bill. That should be
constantly borne in mind as you will hear the criticisms that
you will hear today.
With that, Mr. Chairman, I yield the floor.
Chairman Grassley. Thank you.
Senator Schumer. I mean, the microphone. We are not on the
floor.
Chairman Grassley. Before I have you go ahead, stay seated,
but I would like to have you affirm that the testimony you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God.
Secretary Johnson. I do, sir.
Chairman Grassley. Thank you. Proceed.
STATEMENT OF HON. JEH JOHNSON, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY
Secretary Johnson. Thank you, Mr. Chairman. I want to thank
the members of the Committee for hearing me today. You have my
prepared statement. Let me just say a few things in the 5-
minutes that I have.
In my view, counter-terrorism needs to remain the
cornerstone of the Department of Homeland Security's mission.
It is the reason we were formed and it's the reason why I
accepted service as the Secretary for this Department.
In my view, the global terrorist threat has evolved to a
new phase. It is more complex, it is more decentralized. In
many respects, it is harder to detect. There are more groups
and we therefore need a whole-of-government approach to our
counter-terrorism efforts that includes very much so the
Department of Homeland Security. We have the phenomenon now of
foreign fighters who leave their home countries, go to places
like Iraq and Syria and return.
We need to track foreign fighters. We need to track foreign
fighters from countries for which we do not require a visa. My
staff is developing, as a follow-on to what we did last summer,
greater security measures that can be taken with regard to
travelers from those countries.
We continue to focus on aviation security. I want to build
pre-clearance capability on the front end of a flight into the
United States. We are working daily to do that. A lot of our
efforts continue to center around airport security. We directed
a number of things last week concerning airport security.
We are engaging State and local law enforcement, which in
my view, given the nature of the homeland threat which involves
the threat of the lone wolf, the independent actor--it's much
more important that we work with city police departments,
commissions--commissioners, State law enforcement as well.
We have our engagements in the community to counter violent
extremism. I personally traveled to places like Minneapolis,
Boston, Los Angeles, Chicago, Columbus, Ohio, to engage
community leaders about countering violent extremism. I am
pleased that the Congress is active in evaluating and voting on
cyber security legislation. It is one of my top priorities and
I'm happy to discuss that further.
We are doing a lot to enhance border security. We have
added resources, stemming from last summer. We have prioritized
those apprehended at the border. We have developed what I
briefed to some of you, the Southern Border Campaign Strategy,
which is a DHS-wide combined effort at border security on the
southern border.
As I reported last week, our numbers of apprehensions on
the Southern border midway through the Fiscal Year are down
considerably from where they were this time last year, and even
the year before that. Apprehensions are an indication of total
attempts to cross the border illegally and they are down
considerably, though I believe that there is more we can, and
should, do.
As all of you know, the President and I are interested in
reforming our immigration system. We announced a number of
executive actions that include deferred action for parents,
which is the subject of the litigation in Texas, but it
includes a number of other things as well: added border
security, the Southern Border Campaign Strategy, pay reform for
immigration enforcement personnel, and so forth.
We are ending the controversial Secure Communities program,
which led to a lot of resistance from State and local law
enforcement in an effort to get at the criminals who should be
removed from our country.
I am interested in enhancing public safety, I'm interested
in getting at the criminals, and so we are working with mayors,
Governors, county commissioners, sheriff's chiefs, to introduce
them to our new Priority Enforcement Program so that they will
work with us again in an effort to get at the criminals who
should be removed from this country.
I am sure we will have an opportunity to discuss the EB-5
program. There are a number of security enhancements I would
like to see for the EB-5 program. I wrote a letter to the
Chairman and the Ranking on that yesterday. We are doing a
number of things to reform the way we manage the Department to
make it a more effective and efficient place.
Last but not least, I want to thank the members of the
Senate for helping us fill the vacancies in our Department.
Over the last 16 months, we have had 12 Senate-confirmed
Presidential appointments to the Department, including myself.
Our nominee for Under Secretary for Management Russ Deyo,
was confirmed 2 weeks ago. I am very appreciative of the Senate
for that. Our nominee to be the new TSA administrator should be
announced shortly, perhaps even today.
I thank the Committee in advance for your time and
attention, and I am interested in building a more effective and
efficient Department of Homeland Security, and I appreciate the
support in doing that.
[The prepared statement of Secretary Johnson appears as a
submission for the record]
Chairman Grassley. I'm going to start with a statement on
Mr. Mayorkas that I don't expect you to respond to, but I want
you to know exactly how I feel about it.
In the Inspector General report on Mr. Mayorkas and the EB-
5 program, the Inspector General clearly laid out the evidence
against Mayorkas. The report explains how he intervened on
three particular cases, each of which had high-profile
political connections. Despite the outrage, it seems to me that
you have no intention of doing anything and plan to stick by
Mr. Mayorkas, even though he provided preferential treatment
and violated the very rules he wrote about ethical conduct.
It is no wonder that there is a morale problem at the
Department. Employees see leadership getting away with
violating the rules. Employees are given clear rules on
preferential treatment and how to adjudicate EB-5, yet when the
Director himself breaks those rules there's no recourse, and
then what are employees to think about that?
The only defense that I have seen so far on the
preferential treatment is the Agency gets pressure from Members
of Congress and from both sides of the aisle. I think that that
is comparing apples and oranges and it is no excuse. Members of
Congress aren't in a position to effect final decisions like a
Director.
Secretary Johnson, I think that it causes a loss of
credibility with many people that work within the Department.
It's a shame that there has been--it's been tolerated by you
and others in the administration. That's that statement.
I'll go to my first question. I want to ask you about Mr.
Rangel-Hernandez, a gang member that committed those murders I
referred to. According to your April 17th response to me and
Senator Tillis, Mr. Rangel-Hernandez's application should have
gone through several layers of review, including by U.S.
Citizenship and Immigration Services's Background Check Unit.
Because of his gang affiliation, the Department's
headquarters should also have reviewed the case. Thus, the
adjudicator would only be able to approve such an application
after a sign-off from Washington leadership. There was
obviously a lapse, but it's unclear who dropped the ball.
First question: why was Mr. Rangel-Hernandez approved for
deferred action, despite his known gang ties? In other words,
which office is responsible for approving the DACA applicant,
and was it the adjudicator, the Background Check Unit, or U.S.
CIS headquarters?
Secretary Johnson. Senator, the answer to the broader
question is----
Chairman Grassley. Microphone.
Secretary Johnson. The answer to the why question is
simply, he should not have received DACA. I believe, on
balance, DACA is a good program. I also believe that this case
is a tragic case and this individual should not have received
DACA. I cannot state that in stronger terms.
In reaction to that case, as I think you know, we have gone
back and we have retrained the entire workforce that deals with
these cases to make sure that they identify trouble signs, such
as suspected membership in criminal gangs. If you're a member
of a criminal gang, a known member of a criminal gang, you
should not be receiving DACA, you should be considered a
priority for removal.
We retrained the force and we've done a retrospective
review of every DACA case, every DACA participant, to see
whether there are any similar to this case. We've identified
some and we continue to evaluate this to make sure that we have
reduced situations like this to zero in the DACA program.
I'm interested in--I'm interested in deporting criminals,
sir, and that's one of the reasons why we have engaged in
things like Operation Cross-Check, which is interior
enforcement. This was an operation conducted several weeks ago
where we rounded up some 2,000 priorities for removal. So I am
interested in getting at the criminals, sir.
Chairman Grassley. Yes.
Secretary Johnson. This--this case is a tragic case and he
should not have received DACA.
Chairman Grassley. Do you know whether it was the
adjudicator or the Background Check Unit or the U.S. CIS
headquarters that made the mistake on Hernandez?
Secretary Johnson. I believe that the error occurred--and I
don't have the facts in detail, but I believe the error
occurred once he was referred to those who normally conduct the
background checks. I do not know the name of that unit, but I
believe the error occurred at that point.
Chairman Grassley. OK. Then you just talked about a zero
tolerance policy. I guess it would appear to me that you don't
have a zero tolerance policy, and you just told me you do have.
I guess in the future then we would expect things like this not
to happen?
Secretary Johnson. In the future I am interested in
deporting criminals, including those who've committed crimes
who are in the DACA program. They are priorities for removal.
Chairman Grassley. On April the 9th--and all this question
is, is can I have a response by May the 1st. On April the 9th,
I wrote you about another individual, I think it's pronounced
Jose Buroquez, in the country illegally, an alleged DACA
recipient that has been charged with suspicion of second-degree
murder in Tempe, Arizona. I have yet to receive a response.
Could you see that I get a response to that?
Secretary Johnson. I will. I will undertake to provide you
a prompt response, sir.
Chairman Grassley. Thank you.
It is clear to me that the Department no longer seems to
have a will to enforce immigration laws. I start with the
statistics of interior removals, plummeting from 237,000 Fiscal
Year 2009 to 102,000 Fiscal Year 2014. Saying that officers
were reassigned from the interior to the border, I don't
think--well, I guess I'd say a red herring. It doesn't explain
why interior removals had already declined by 44 percent
between 2009 and fiscal 2013, well above the surge.
What can the Committee expect with regard to removals in
the interior? Will they continue to decline, showing a
continued disregard for enforcement of the law?
Secretary Johnson. With the resources we have, sir, I'm
interested in focusing on criminals and recent illegal arrivals
at the border. We have prioritized criminals, we've prioritized
those who came into this country after January 1, 2014, and
we've prioritized those who were apprehended at the border.
That is one of the reasons why we have a new Priority
Enforcement Program where we want to work with law enforcement
to get at those who are behind bars. It's one of the reasons
why we have developed Operation Cross-Check, greater interior
enforcement against criminals. I'm interested in going after
the criminals.
One of the reasons I believe that the removal numbers are
down this year, and we are in the middle of the fiscal year, is
because lower apprehensions, so there's lower intake--lower
apprehensions, as I referred to in my opening remarks. There
are fewer people attempting to cross the Southern border and
there are fewer people apprehended.
The other reason, frankly, is because of all of the
resistance that we were receiving in State and local law
enforcement to the Security Communities Program. Something like
239 jurisdiction were resisting cooperating with us in our
enforcement activities, so we've developed a new program that I
believe removes the political and legal controversy with the
old program.
I am now personally engaging in conversations with mayors,
Governors, about the new program so that we can work together
again at interior enforcement against criminals, those who
represent public safety.
I also believe, sir, that one of the reasons the numbers
are not as high as they used to be when it comes to removals is
because of the changing character of the migrants. They are
increasingly from non-contiguous countries and the process of a
removal of someone from a non-contiguous country is more time-
consuming. You see greater claims for humanitarian relief, for
asylum, so it's not as simple as just sending somebody back
across the border.
Chairman Grassley. Senator Klobuchar.
Senator Klobuchar. All right. Thank you very much, Senator
Grassley. Thank you so much, Mr. Secretary. I think we've
talked about this in the last week and you are very aware of
what's happened in Minnesota, where six men from the Twin
Cities area were arrested for plotting to travel to the Middle
East to fight for ISIS.
Our U.S. Attorney there, as you know, is doing a good job,
as are our law enforcement officers on the Federal level, your
people. I think you also know that one of the reasons we're
able to make these cases is because of the relationship that
law enforcement has built over the years with the Somali
community, of which we are very proud, and been able to get
information and been able to bring these cases. I think that
gets forgotten sometimes.
Part of this is the effort that the--you mentioned you were
coming to Minnesota--I was with you then--the idea of fighting
extremism and the pilot program that is going on in Minnesota.
I would hope that this is a long-term priority of the
Department of Homeland Security.
One of the concerns that we have about the current state of
the program is that the grant programs that support the
extremism initiatives are not sufficiently focused on helping
the programs in the pilot cities. You mentioned the pilot
cities.
I was wondering if we can get some more funding, to be so
blunt, given that we have shown we are actually having these
problems? This pilot has been recognized. We did just get
$100,000 from the Justice Department, but it's kind of hard to
add to everything else we're doing with the prosecutions, and
that's what we're trying to pursue in the Twin Cities right
now.
Secretary Johnson. Senator, I agree wholeheartedly that our
so-called CVE engagements are fundamental to our overall
Homeland Security counter-terrorism efforts, which is why I am
spending a lot of my personal time doing it myself. As you
know, I came to Minneapolis some months ago.
I think it is important that we engage communities,
community leaders, the Islamic community in this country, and I
believe that through the good works of people like U.S.
Attorney Andy Luger there's been a lot of progress made in
building trust between community leaders, family members, and
law enforcement, even Federal law enforcement.
When I go to these communities myself, I recognize it's an
exercise in building trust. They want to talk to me about
profiling at the airports or some of their issues with how we
enforce our immigration laws, and I want to listen, I want to
learn from those experiences, but then I always have an ask, as
you know, which is that it's everybody's homeland security,
it's your public safety, it's your homeland security. Help us
with public safety.
Senator Klobuchar. OK. I'll--we can--I want to move on to
something else, but I do, again, want to put that pitch in. In
the past when I was in law enforcement and pilot programs were
set up, it usually came with some kind of funding that would
support the kinds of goals of the program.
Secretary Johnson. Yes.
Senator Klobuchar. I think that's very important if we want
to show that this works.
The second thing on U.S. Customs and Border Protection. As
you know, one of their key responsibilities is enforcing our
trade laws, including the antidumping and countervailing duty
orders. Particularly important in the Iron Range in Minnesota,
we have had 1,100 workers laid off. This is true to my heart,
this is where my grandpa worked, where my dad grew up. My
grandpa worked 1,500 feet underground in the mines his whole
life.
It appears that we could be doing more, just based on
talking to the White House, talking to people with various
Departments, with U.S. Customs to be checking these shipments
when they come on our shore. If they're filled with illegal
steel products, why can't we see it and call it as it is?
I think that sends just as strong a message as changing
statutes, which is very important, to make it easier to bring
these cases. I'd like to stop these things from getting on our
land to begin with if they're not supposed to be there. Could
you talk about the efforts that are going on with that right
now?
Secretary Johnson. Part of--part of what our mission is, is
promoting lawful trade and travel and combatting Customs fraud,
illegal dumping, as you referred to it, and so our CBP
personnel, as well as ICE Homeland Security Investigations, are
spending a lot of time dealing with fraud in connection with
our imports, exports, false statements, counterfeit items.
I think HSI in particular does a pretty good job when it
comes to tracking inappropriate, illegal shipments of things,
and we're also focused, frankly, on promoting lawful trade and
travel and we've had record numbers of imports, inspections
last year in that regard but our efforts need to be focused
on--on the items you referred to as well.
Senator Klobuchar. Right. We're going to be pursuing this
as we move along in the next month or so. But to me this could
get a lot of bang for the buck if we did a better job enforcing
the laws right when the shipments come in, and it just seems to
me it's pretty easy to find a bunch of steel rebar when we're
able to find drugs and smaller containers of things. If you've
got a whole shipment of steel, there's got to be a way to see
it and track it and figure it out. I think it would be a very
smart way of enforcing these laws.
The last thing I wanted to ask about was the U visas for
victims of domestic violence and trafficking. I know you're
supporting of comprehensive immigration reform, and we worked
on this as part of the bill that passed the Senate.
On the first day of the fiscal year, U.S. CIS filled its
limit of 10,000 visas. The Vermont Service Center, as an
example, is now processing U visa applications filed in March
2014 that will not leave the waiting list until Fiscal Year
2018. What are the ramifications of running out of these victim
visas so early?
Secretary Johnson. The ramifications, if demand exceeds
supply, obviously, is that a lot of people worthy of U visas
don't get them. I appreciate the efforts that were undertaken
in the comprehensive Senate bill to address this issue and I
hope we can re-address it at some point.
Senator Klobuchar. Yes. Again, I know this isn't your issue
from a policy standpoint because you're supportive, but I think
it's important for my colleagues to know that, in my experience
as a prosecutor, was that people would deliberately prey on
people and then tell them to shut up after they raped them
because they were going to report them, and that's why this U
visa program has been so successful to get people to come
forward who are victims who have documentation issues.
I'm hoping that we will be able to resolve this going
forward when we do pass some kind of comprehensive immigration
reform bill. I think people have to know the nationwide numbers
and what's happening, so thank you, Mr. Secretary, for your
work.
Chairman Grassley. Thank you, Senator Klobuchar.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman, and thank you
for your leadership. Secretary, good to have you with us.
First of all, on the comprehensive immigration bill, it was
not supported by the people and over a 10-year period the
number of green cards would increase from, lawfully then, 10
million people getting permanent residence, to 30 million
people getting permanent residence.
As to the enforcement situation, Senator Grassley offered a
bill that said, well, we want to see the border secure for 6
months before the amnesty occurs. That was rejected by the
Democrat Majority in the Senate.
Senator Cornyn had a bill that called for a commission to
certify and improve the border situation using Governors and
others. That was rejected and so that's part of the reason we
had such a difficult time.
Secretary Johnson, I believe Senator Grassley is correct to
say that we see a lack of will in your Department before you
took the office and from the President, frankly, on down.
He mentioned interior enforcement, 40 percent of the people
here unlawfully today came lawfully and refused to leave on
time. We have no real ability to deal with that and have not
taken steps required by law to deal with that.
The first day the President took office, he stopped work
site inspections and basically threatened agents never again to
do that. He canceled and effectively ended the 287-G program
that welcomes State officers to be trained by the Federal
officers to help them improve their situations and their
ability to help.
Sanctuary cities continue unabated. They don't even honor
your detainers. Won't even honor your detainers, and we need
to--why we would not push back against that utilizing financial
incentives, I don't know. Operation Streamline, that worked in
a number of border-sick sectors, has been cut back
dramatically, if not ended. True interior removals are much
lower than they have been.
The President's push for amnesty, his continual discussion
of it, is promise of amnesty and he's actually carrying out
executive amnesty after Congress refused, has increased
immigration unlawfully into the country. We have continued to
allow foreign countries to refuse to accept back people that we
are trying to deport. If they don't accept that, then they
should have other members, other citizens admitted here.
Morale in your Department is the lowest in the government.
Indeed, they even filed a lawsuit against your predecessor
because the Department was blocking them from carrying out
plain law. Deportations are down 41 percent over 3 years, 25
percent over last year; 160,000 criminal aliens are on the
streets.
You've announced a program to fly people from Central
American countries who apply for refugee and parole status in
those countries to the United States of America at the expense
of the U.S. taxpayers. All this has led, I believe, millions to
conclude if they come here illegally they'll be successful.
We've got to change that fundamentally. If you do that, I
believe we can make progress. In fact, I would note that you've
gotten a good bit more resources, although Border Patrol
numbers are beginning to slip again.
In Fiscal Year 2006, before the first big battle over
amnesty occurred, there were 12,000 agents, now there are 2,100
agents, although they've declined for the last 3 years, Border
Patrol agents. I don't--just can't say, Mr. Secretary, that you
have led, and the President and your predecessors, have led
effectively, demonstrating a will to do what the American
people want, which is a lawful system of immigration that
serves the national interest, one that we can be proud of.
We are not there yet and you need to do more, and you can
do more with the resources you have. If you need more resources
and legal changes, please let us know and I think Congress will
respond.
Let me ask you this, just some fundamental questions. How
many aliens with final orders of removal are currently in the
United States and have not been removed?
Secretary Johnson. I don't have the number sitting here
right now. I'm sure it is a large number, by your measure and
mine. It's an unacceptable number, but I know that there is a
huge backlog in our immigration enforcement efforts.
We need to prioritize those, in my judgment, who are public
safety threats in this tremendous backlog and those who have
come to this country illegal recently, which is why, in the new
priorities, we have put an emphasis on those who arrived here
after January 1, 2014. So going forward--priority.
Senator Sessions. Going forward, with regard to your
priority, I understand you need to prioritize. I can understand
that. A priority can become, in itself, an amnesty. A priority
can say huge numbers of people are not going to be deported.
What I hear you saying, and I think others could hear you say,
that if you don't commit a serious crime you're OK, you're not
going to be deported.
Let me ask you this. According to the Border Patrol
statistics in Fiscal Year 2014, 479,00 individuals were
apprehended at the Southwest border.
Secretary Johnson. Yes.
Senator Sessions. How many of those remain currently in the
United States?
Secretary Johnson. A lot have been removed, a lot were sent
back on an expedited basis last year. But as I said a moment
ago, a number of those are from non-contiguous countries and
they've asserted claims and been granted relief.
Senator Sessions. That isn't a problem. I think we need to
help you pass laws that would make that easier. How many of
those--easier to remove. How many of those are actually here,
having been released on bail, have not been deported, and have
gone someplace throughout the country? Do you not have the
numbers?
Secretary Johnson. Let me say two things. One, when we had
the spike last summer in the Rio Grande Valley, we expedited
the return flights to Central America, we reduced the turn-
around time from something like 30 days down to 4 days, and we
surge--surge resources. We turned them around quicker and we've
kept the resources on the Southern border so that----
Senator Sessions. I'm going to submit a written question.
My time is up.
Secretary Johnson [continuing]. The numbers remain low.
Senator Sessions. I'll submit a written question, but I
think you need to be able to tell us how many of those have
actually not been deported but have successfully entered the
country through that illegal process.
Secretary Johnson. Senator, that's a knowable number and
I'm happy to provide it to you, I just don't have it sitting
here.
Senator Sessions. Thank you.
Chairman Grassley. Thank you.
Senator Durbin.
Senator Durbin. Secretary Johnson, thanks for your
leadership at the Department of Homeland Security. You have a
tough job. Unfortunately, Congress has not made it any easier
for you. My friend and colleague from Alabama said what America
wants is a lawful system of immigration. Couldn't agree with
him more. Lawful. That suggests that Congress should pass a
law. Well, wouldn't that be novel?
We did pass a law in the Senate, 68:32, the Comprehensive
Immigration Reform Act. The House of Representatives refused to
call it up, or anything since. If we're going to have a lawful
system of immigration, perhaps we should have a law from
Congress, which has been opposed by most of the critics that
you're hearing today.
What the President has tried to do is to step in with a
broken immigration system and make it better. I don't know how
anyone can argue that we are a more secure homeland if we don't
know who's living here. What the President has said is that if
you are a young person brought here through no fault of your
own and have grown up in this country, through DACA, we'll give
you a chance on a temporary, renewable basis to submit yourself
to a criminal background check and to live in America without
fear of deportation. Temporary, renewable process, criminal
background check. Seems to me that's not only fair, but makes
our country more secure.
When Congress failed to pass a comprehensive immigration
law, the President said, of the 10 or 11 million undocumented
in this country, we are better off as a Nation to know who they
are, where they live, that they've submitted themselves to a
criminal background check, and that they're going to pay their
taxes while we're here.
I think most Americans would agree that makes us a more
secure Nation, but there are people who just loathe this notion
that the President would use his power as an executive, as
other Presidents before him, to try to make this a more secure
Nation.
I have a special interest in DACA, introduced the Dream Act
14 years ago, hearings in this Committee, called before
Congress as part of comprehensive immigration, passed, but
sadly the House of Representatives refused to even consider the
issue.
I'm concerned of reports that say that more than 11,000
Dreamers who applied to renew DACA in a timely manner have lost
their status because of delays in processing at your Agency,
through no fault of their own.
Can you tell me what the status is on applications for
renewal on DACA, Mr. Secretary?
Secretary Johnson. Yes, sir. We, as I'm sure you know,
encourage DACA participants, if they're renewing, to do that
months in advance of when their current authorization expires.
You're correct that a number were not issued their work
authorizations in time. I think you're right that the number's
about 11,000. Most who renewed, renewed timely and were able to
get their work authorizations on time.
I also know from the Director of CIS that we've set up a
hot-line, so to speak, for expedited treatment if somebody is
facing the lapse of their work authorization and they haven't
got a new one in time.
If that process is utilized, we will do our best to try to
turn that around in a timely manner, making sure that we've
appropriately assessed the renewal application. I do know there
is an expedited route to get a work authorization for lapses if
people know about it and they take advantage of it.
Senator Durbin. I thank you for that. As you might imagine,
I joined a number of Senators encouraging the President to
create the DACA program. My understanding is, some 600,000 have
successfully applied for that protective status on a temporary,
renewable basis and submitted themselves to criminal background
checks. I've met many of them and they're getting on with their
lives and on the path to making a great contribution to this
country.
It would certainly be helpful, with our broken immigration
system, if Congress stepped up to its responsibility too and
that we did something to enact the law, which would make us a
more secure Nation.
When it comes to our border, we not only have invested more
resources in protecting the border of the United States with
Mexico than ever in our history, it's one of the largest
Federal law enforcement agencies that we have in this country.
The comprehensive immigration reform, which many on the other
wide voted against, would have dramatically increased that
technology and manpower to protect the border.
In your opening statement you talked about a decline in
apprehensions at the border. Could you repeat that for the
record and suggest what that says about what we're doing at our
border?
Secretary Johnson. I think we have invest--well, I believe
that our investment in border security over the last 10, 15
years is showing results. We have more people, more technology
on the Southern border in particular now than in the history of
this Nation and I think that it is showing results.
In the year 2000, there were 1.6 million apprehensions on
the Southern border. That number in recent years has ranged
somewhere between 350,000 to, as Senator Sessions noted,
479,000 last year. That increase last year was due, almost
majority, to the spike in the Rio Grande Valley sector.
I expect that the number will be down considerably from
479,000. Longer term, our investment in border security is
showing good results. I believe that the downturn in the
numbers is due to that. I believe it's due to the fact that we
got the word out in Central America that there are no promisos,
like the Coyotes were spinning last summer.
You can see our public awareness campaigns posted at bus
stops in Guatemala City, for example. I believe that our law
enforcement efforts against the smugglers are showing good
results. All of this is in the face of an improving economy in
this country.
Normally, illegal migration is tied to the economic
conditions in this country. We have an improving economy, so
the pull factors are there. We are seeing a pretty marked
decreased in apprehensions this fiscal year. I looked at the
April numbers this morning and the April numbers are pretty
much consistent with the March numbers.
Senator Durbin. I just have a few seconds.
Secretary Johnson. Sure.
Senator Durbin. I want to close by saying that I believe
that when we are judged in the course of history on an
international basis the world will point to the humanitarian
crisis in Syria and ask every civilized nation on earth, what
did you do? Some nations have made an extraordinary sacrifice.
Turkey, Lebanon and Jordan have accepted huge numbers of
refugees and we've helped pay for their care.
The United States, in the last 4 years, has accepted 700
refugees from Syria. We can do more. We should do more. I hope
that there is an effort afoot in your Agency to find ways to
safely, safely bring in those refugees who are no threat to the
United States, but represent a true humanitarian challenge to
our country.
Chairman Grassley. Thank you, Senator Durbin.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Mr. Secretary, thank
you for joining us today. Thank you for your service.
I'd like to address two different topics. I want to start
with an issue you raised, which is ISIS and foreign fighters.
To the best of DHS's knowledge, about how many Americans have
traveled abroad to join up with ISIS?
Secretary Johnson. Senator, the way I--the way we calculate
that is, there are approximately--and this is the last time I
looked. It could be a little higher now--180 individuals who
have left to join the conflict in Syria and Iraq, or attempted
to leave. That number, as I said, is probably a little higher
by now but that's the number we've said publicly and I think
that that's a fairly accurate number. There's an unknown
factor, clearly, sir.
Senator Cruz. On the order of magnitude, 180 is a good
approximation?
Secretary Johnson. The last time I--the last time I saw a
number it was about that, but it's probably higher by now.
Senator Cruz. Chairman Grassley and I have joined together
in introducing legislation, the Expatriot Terrorist Act, that
provides that an American citizen who travels abroad and joins
ISIS and joins up with a foreign terrorist organization has in
so doing constructively forfeited his or her American
citizenship.
There is existing legislation on the book that provides for
other grounds for forfeiting your citizenship, [Video had
stopped] but right now joining a foreign terrorist organization
is not one of those.
In your judgment, would it be beneficial to have additional
tools to prevent U.S. citizens from using American passports to
come back to this country and potentially wage jihad and
attempt to murder American citizens here at home?
Secretary Johnson. Senator, I don't know that stripping
somebody of their American citizenship is--is the most
effective tool. I do believe that we need to enhance our
efforts to interdict those who are attempting [Video started up
again] to leave the country and prosecute them for material
support or deny them boarding, or deny them boarding on the
return flight or in some way investigate and apprehend them
before they can get on the flight or once they return.
We have spent a lot of time with our counter-terrorism
partners overseas and within the Department of Homeland
Security at better efforts to detect those who are engaging in
travel to Iraq and Syria, including broken travel. We spend a
lot of time in DHS and with law enforcement doing exactly that.
Senator Cruz. Although I guess the track record of
apprehending people when they're coming back is not what it
should be, if I recall correctly. The elder Tsarnaev brother
who carried out the Boston bombing, when he came back to
America, his return and his travel was not flagged, although it
was supposed to be. Is that correct?
Secretary Johnson. Very clearly, there were some lessons
learned from that case and we have done, I believe, a better
job at connecting the dots in reaction to that case.
Senator Cruz. Let's shift to a different topic, which is
the enforcement of the border. I am very concerned by the lack
of enforcement at the border, the lack of enforcement of our
immigration laws, and I'm very concerned on multiple levels:
No. 1, from the perspective of national security and dangerous
illegal immigrants being allowed to come into this country, and
No. 2, from the perspective of this administration not
enforcing the law.
Last week the Washington Times ran an article, the headline
of which was, ``Illegal Immigrant Deportations Plummet As
Amnesty Hampers Removal Efforts'', and it described that this
year, deportations have fallen by another 25 percent this year,
and indeed overall, deportations of those who are here
illegally are down 41 percent from 3 years ago.
Indeed, the article goes on to say, ``And the drop began
almost exactly at the beginning of President Obama's illegal
amnesty''. Mr. Secretary, how do you explain a 41 percent drop
in removals of aliens here illegally?
Secretary Johnson. A couple of things, sir. One, the
apprehensions are, in fact, lower on the southern border so the
intake is lower, this Fiscal Year in particular. Two, Secure
Communities. Secure Communities was a controversial program
that led to the enactment of restrictions, prohibitions, on
cooperating with our immigration enforcement personnel in a
number of different State and local municipalities, so forth.
Secure Communities was becoming so controversial that mayors,
governors were passing laws, ordinances that prevented
cooperating with us in our enforcement efforts.
We have ended the Secure Communities program, as I
mentioned, and put in its place a new program that I believe
will promote enforcement so that we can get at the criminals.
Secure Communities, in my judgment, is one of the reasons why
we are seeing those lower numbers, along with a few other
things, sir.
Senator Cruz. Mr. Secretary, you stated your interest just
a moment ago at getting at the criminals.
Secretary Johnson. Yes.
Senator Cruz. Which I guess is very much the same as the
President's purported justification for his illegal amnesty
program, that it would allow the focus of prosecutorial
resources on violent criminals. It strikes me there's a fairly
serious problem with that argument, which is namely that the
Department is not focusing its resources on violent criminals.
Indeed, the number of criminal aliens deported from the
interior has declined 23 percent since last year, and declined
39 percent since the peak in 2011. When it comes to violent
criminals, the Department is not stepping up its efforts.
Indeed, if you look to 2013, in 2013 the Department
released 36,007 criminal aliens with serious convictions. That
included 116 with convictions for homicide, 43 with convictions
for negligent manslaughter, 14 with convictions for voluntary
manslaughter, one with a conviction for something I classified
as ``homicide--willful kill public official gun'' and that
individual was released.
In addition to that, we had 15,635 criminal aliens who had
been convicted of drunk driving that were released back into
the population; 2,691 who had convictions for assault that were
released into the population.
Why is the Department releasing so many criminal aliens?
Second, can you tell this Committee, in the six and a half
years of the Obama administration's tenure, just how many
criminal aliens have been released, how many murderers, how
many rapists, how many people who have been convicted of
violent assault have been released into the population?
Secretary Johnson. Yes. As you pointed out, Senator, in
FY13 there were about 36,000 individuals convicted of a crime
who, once in our immigration system, were bonded out. That
number declined to about 30,000 in FY14, but in my judgment
that number is still too high.
In reaction to this situation I directed that we do a
number of things differently, including elevating the approval
for a circumstance where somebody who has been convicted of a
crime is released from immigration detention. It is the case
that some of these cases are due to releases by immigration
judges or by the Supreme Court jurisprudence in Zavado v.
Davis.
I do think we could do a better job, which is why I've
directed we elevate the approval level for that and that we no
longer release people for lack of space. That was an issue in
FY13, especially when we were dealing with sequestration.
We had a situation where we released a lot of people
because we were concerned we didn't have the space, and I've
directed that should not be an excuse for releasing somebody.
We should find the space. This is a problem I recognize exists,
and I'm interested in promoting public safety and that's why
I've directed these changes, sir.
Senator Cruz. Thank you, Mr. Secretary. I'll follow-up with
a written request for the information I asked for.
Secretary Johnson. Thank you.
Senator Cruz. Thank you.
Chairman Grassley. Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Before I begin
this morning, I think it's important to acknowledge the events
taking place in Baltimore right now. My heart goes out to the
family of Freddie Gray and to the city of Baltimore.
I understand that the events surrounding the death of Mr.
Gray are now the subject of an independent investigation and I
believe that a full and thorough accounting of the facts is a
necessary first step in helping to restore trust between police
officers and the community.
As we wait for the results of that investigation, as we all
work together to secure justice for Mr. Gray and his family, I
join Mr. Gray's family in urging all the protestors, or those
who do protest, to do so peacefully.
Secretary Johnson, cooperation between law enforcement
officers and the communities they serve remains the focus of
national attention. It seems that everyone agrees that racial
and ethnic profiling undermines trust in the authorities. That
causes resentment among the targeted groups.
I was pleased to see former Attorney General Holder's--I've
got to start saying that now--revisit DOJ's policies on
profiling and extend the ban on profiling to cover gender,
religion, sexual orientation, and gender identity.
I think this is a step in the right direction, but these
new guidelines do not apply to the TSA, Customs and Border
Protection, which are DHS agencies. These agencies are still
permitted to use profiling when screening airline passengers
and individuals crossing borders.
I understand that it is challenging to ensure public safety
while simultaneously building trust with communities who have
experienced profiling. Minnesota, as you know, ia a--has a
large community of Somalia Minnesotans, Somali-Americans, for
example, and I want to thank you for traveling to Minneapolis
last year and meeting with members of the Cedar Riverside
community to hear their concerns.
I continue to hear from members of the community who report
that they experience profiling, who are singled out for
additional screening and questioning at the Minneapolis-St.
Paul Airport so routinely that they prefer to drive to Chicago,
over 400 miles away, rather than fly out of their hometown.
Instead of fostering respect and cooperation, I worry that our
current practices are nurturing fear and resentment.
I'd like to know what steps, in your view, DHS can take to
ensure that we do a better job of protecting our security while
simultaneously respecting the dignities of those that are new
to our communities.
Secretary Johnson. Thank you for that question, Senator.
First of all, we looked pretty hard at whether we could sign on
to the DOJ non-profiling policy last year, or earlier this
year. We found that, given our different missions, that policy,
which was intended for law enforcement, didn't quite fit as we
have, as you pointed out, aviation security, border security.
Senator Franken. I understand.
Secretary Johnson. Administration of our immigration laws.
There is a general rule that we should not engage in racial
profiling. That is still the case. That was the case before,
that's the case now. Nationality, given the nature of our
mission, is taken into account, for example.
I've heard, just as you have heard from the Somali
community in Minneapolis, that because of the profiling that
they perceive occurs at the Minneapolis Airport, they prefer to
go to Chicago. I've heard the exact same thing. I asked TSA to
undertake an evaluation and a study of that. They have come
back to those in the community to address the concerns. I think
it, frankly, continues to be a work in progress. TSA knows my
view, that we should not profile at airports and we should not
make it the case that somebody would prefer to go to Chicago
versus Minneapolis, their own airport.
We've had, I think, some productive conversations with the
community along these lines, but I think it also probably
continues to be a work in progress and it's something that's on
my radar personally.
Senator Franken. Thank you for that response.
I understand that last night a court issued a decision that
needs to be evaluated regarding families in immigration
detention facilities, but I'd like to talk about that issue,
nonetheless.
In the past few years, the Department of Homeland Security
has significantly increased its use of family detention
centers, at an annual cost of nearly $2 billion. Family
detention centers often separate parents from their children.
Their recent expansion has led to complaints of poor
conditions, inadequate services, and physical dangers for those
detained.
Such allegations would suggest that family detention
centers pose long-term developmental challenges for immigrant
children and families. What is your view of the current family
detention system? Should the use of family detention facilities
be expanded or reduced in the future?
Secretary Johnson. Before we encountered the situation we
had in the Rio Grande Valley last summer, we had, among the
34,000 beds for immigration detention, only 95 for family
units, for members of families. In the face of what we were
dealing with last summer, which included a lot of families, we
expanded our detention space beyond 95 and we've opened several
new facilities which I believe are important to maintain.
I have personally visited several of them to ensure myself
that the conditions of confinement are appropriate. I know that
the very purpose of family unit space is to keep families
together so that you're not sending the parent in one direction
and a child in another. The very purpose of it is to keep the
families together. As you point out, there's a case or two
involving family detention, one in California and one in
Washington, DC.
As recently as yesterday and Friday, I have--and I continue
to evaluate whether our current policy is the appropriate one
for family units. I'm hearing a fair amount about issues with
family detention, and so I'm currently evaluating whether the
current policy is the best one. I'm pleased that the numbers of
family units crossing our border illegally is down considerably
from last year, and I want to continue to evaluate it and make
sure we're getting it right because I hear the issues being
raised by a number of people.
Senator Franken. Thank you. I'll ask further questions for
the record, or I'll submit them, rather.
Chairman Grassley. Senator Cornyn.
Senator Cornyn. Good morning, Secretary Johnson. The
Chairman said you have a very difficult job, and I think that's
an understatement. Notwithstanding the difficulties of the job
either that you have or that we have, all of us must be held
accountable for the way we discharge our responsibilities.
That's what this hearing is about.
It's particularly difficult to be effective when the
administration continues to sabotage its own efforts by
embracing unconstitutional policies like the President's
executive action. Twenty-two times, the President of the United
States said he didn't have the authority to do what he did, and
now we have, of course, as you know, an injunction, a
preliminary injunction in place, issued by a Federal District
judge in Brownsville. Obviously the stay is on appeal to the
Fifth Circuit.
I'd like to just refresh your memory, and ours, what the
court said when it issued the preliminary injunction. It said,
``This court finds that DAPA''--that's the name given to the
program, the executive action. ``The court finds that DAPA does
not simply constitute inadequate enforcement, it is an
announced program of non-enforcement of the laws that
contradicts Congress's statutory goals. DAPA does not represent
mere inadequacy, it is complete abdication.
The Department of Homeland Security has 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 actually acts to
thwart them.''
The court went on further and said, ``The Department of
Homeland Security Secretary is not rewriting the laws, he is
creating them from scratch.''
Finally, Judge Hanen said, ``The Department of Homeland
Security does not seek compliance with Federal law in any form,
but instead establishes a pathway for non-compliance and
completely abandons entire sections of this country's
immigration law.'' Close quote.
I know you disagree with Judge Hanen, and the courts will
finally decide the propriety of his judgment. And of course,
this is going to take some time, I would imagine, given the
fact that he's only issued a preliminary injunction and the
trial on the merits still remains. This could go back and forth
to the U.S. Supreme Court a couple of times before it's over
with.
But to me, beyond the unconstitutional act by the
administration in issuing this executive action, I agree with
Judge Hanen's characterization, that won't surprise you. I
think perhaps the larger tragedy is that the President has
poisoned the well in Congress and destroyed any trust
whatsoever between the executive branch and the Congress when
it comes to fixing our broken immigration system.
I know our friends who were on the Gang of 8, Senator
Schumer, Senator Durbin, said they have an answer. If the House
would simply just swallow whole hog the Gang of 8 bill, all the
problems would go away. The Constitution gives the House
authority to agree or not agree.
One thing I think we should have learned from this whole
exercise is that comprehensive immigration reform does not
work. That's what I've learned in the last 10 years, working to
try to fix our broken immigration system. We need to do what we
can where we can, and I still have not given up hope that we
can do that.
I will say the President's executive action poisoned the
well and made the congressional branch, the legislative branch,
so distrustful of the President's actions that it's going to be
very, very hard--much harder--than if the President had not
undertaken this action.
I'd like to ask you, do you regret the actions that you and
the administration have taken that have gotten us to this
point?
Secretary Johnson. No, I do not, Senator. I believe that
the undocumented population in this country, which at least
half of which has been here more than 10 years, has to be
reckoned with. We know they're here and they are not priorities
for removal.
I would note that in two places, Judge Hanen's opinion
refers to the fact that the Secretary has--he acknowledges--has
the authority and the discretion to engage in prosecutorial
discretion, prioritize who we should remove and who we should
not.
There are millions of people in this country who are not
priorities for removal. There are dozens of States that allow
them to have driver's licenses. There's one State that says
that an undocumented immigrant has the right to practice law.
In my judgment we have to deal with this population. You refer
to the fact that the President supposedly poisoned the well. We
took the action we took after waiting literally for years for
Congress to act. So----
Senator Cornyn. Do you think it's an excuse for the
President to act unconstitutional because the Congress doesn't
act quickly enough to suit him?
Secretary Johnson. I have what is in my judgment as a
lawyer a very, very thoughtful opinion from the Office of Legal
Counsel that we have the legal discretion to do what we did.
Unfortunately, Judge Hanen disagrees, but the case is on appeal
now.
Senator Cornyn. My guess is that it's going to take
literally long past the time that President Obama leaves office
before this matter is finally resolved by the courts, which
means that not only has the President poisoned the well for any
meaningful reform of our broken immigration laws during the
duration of his presidency, but it also will endure beyond his
presidency.
I'd like to ask you, in the short time remaining, you have
said on numerous occasions that we have good results in terms
of the number of people being detained at the border, last
year, 479,000. Don't you think it's a little premature to be
declaring victory when it comes to border security?
Let me ask you as well, I've always found it strange that
we count success when the number of people actually detained
goes down because it strikes me that it's an equal inference
that you may be doing a better job. The truth is, you may not
be doing as good a job and fewer people are being detained, yet
you believe that that represents a victory and the problem's
taken care of.
Secretary Johnson. Senator--Senator, I'm very definitely
not declaring victory when it comes to border security. In
virtually every statement I issue, like the one last week, I
say, here are the numbers, but we are not declaring mission
accomplished. I refer to what more I believe we can do to
strengthen border security, and that is reflected in our FY16
budget submission.
Senator Cornyn. Mr. Chairman, if I could just close on
this. We didn't have the time yet, but 57 percent of the
children who were--came across in the wave--the humanitarian
crisis last year were issued orders of removal in absentia,
which means they did not show up for their court hearings,
which to me means that they basically successfully navigated
our broken immigration system and they're going to stay here.
That's a problem we still haven't fixed and we still need to
address. Thank you.
Chairman Grassley. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
for having this hearing. Thank you for your service to our
Nation, Mr. Secretary.
I am very pleased to learn that the Department is
reevaluating its family detention policy. As you well know,
Judge Boseburg's opinion, in my view at least, requires it.
Also, many have objected to family detention policies,
including myself.
I'd like to work with you in devising and implementing
better policies. I think that these policies cannot only
provide for more humane and productive treatment of young
people when they come here, but also continue to have the
effect of perhaps providing for fewer people actually crossing
the borders and that's been the result, I think, of some of the
conscious decisionmaking and policymaking that the policy--that
the Department has adopted.
I'd like to ask you, what specific measures and steps you
contemplate in revising the family detention policies?
Secretary Johnson. The family detention issue is under
review in litigation in Washington, DC. There was an injunction
issued there with respect to a class of people who have made
credible fear claims. The issue in the case is whether somebody
can be held as a deterrent to mass migration. We're looking at
that case. We have a pending Motion for Reconsideration in the
case, but I'm continually evaluating whether such a policy is
necessary in the current climate.
There is another case in California right now where the
judge has given us 30 days to try to find an appropriate
settlement, and so I'm working with the lawyers beginning this
week on responding to the judge's request.
Overall, I think it's important for people to know that I'm
sensitive to family detention. I have personally visited
Artesia and Dilley, to satisfy myself that what we're doing is
the appropriate course. I believe that our expanded detention
capability, in the face of last year's situation, was the right
thing to do and I believe that it had an influence on our
overall efforts.
I think that overall we need to maintain this capability,
but I want--I want to continually evaluate and reevaluate the
policy because I hear the concerns raised by you and others,
sir.
Senator Blumenthal. Maintaining the capability is
expensive, isn't it?
Secretary Johnson. Yes, it is.
Senator Blumenthal. Detaining whole families can be a lot
less humane and productive than adopting other policies. Am I
right?
Secretary Johnson. Detaining whole families is indeed
expensive. It is a notable item in our FY16 budget request and
it can be a challenge. I believe that the capability is
important to our overall border security efforts, but I want to
make sure we have the policy right.
Senator Blumenthal. Let me ask you about access to legal
services. Is it the policy of the Department to permit and
enable lawyers to visit those facilities where folks are
detained?
Secretary Johnson. Yes. Yes.
Senator Blumenthal. In terms of providing counsel where
private attorneys can't do so, has the Department provided that
kind of resource?
Secretary Johnson. We do not, in immigration cases of this
nature, provide--provide counsel if one cannot be provided. We
do not guarantee counsel. We do promote access to counsel and
we do a number of things to put people in touch with lawyers
locally or those who are interested in representing
individuals, and I know we have made improvements in those
efforts since we began opening our family unit detention
capability last summer.
Senator Blumenthal. I know that it may not be the sole
responsibility of the Department of Homeland Security, but the
processing of visas in Central American countries, the
screening of people who want to come here, has begun. Is there
anything that can be done to expedite that effort? Because I
think it represents a real hope for stopping the flow of
unaccompanied minors and others who may come to this country
and then have to be sent back.
Secretary Johnson. A piece of advice that I received last
summer from the U.S. Conference of Catholic Bishops is in-
country screening. In other words, you can't lock the door and
not provide a legal safe pathway at the same time. That's what
we've done in the three Central American countries.
I'm disappointed that not more people are utilizing this,
and I believe that we need to promote the new program better. I
think this is a joint effort by us and the State Department and
the governments in the Central American countries. I've been
disappointed that not more parents in the U.S. are utilizing
this program to petition to get their kids here. So----
Senator Blumenthal. I would agree very wholeheartedly. I
was surprised at a hearing that was held here just last
Thursday, literally, to learn that only a small number of
parents so far are taking advantage of this program. In effect,
to use the rules that are available to them, they're the same
rules that would apply if their children came here but they can
use them in the country of origin.
Secretary Johnson. Right.
Senator Blumenthal. I hope that the Department will make
efforts, and the State Department obviously also has a role, to
spread awareness about this program.
Secretary Johnson. Thank you. Yes.
Senator Blumenthal. Thank you.
Thank you, Mr. Chairman. My time has expired. Thank you,
Mr. Secretary, for your service and for the service of the many
men and women who serve in the Department of Homeland Security
in this very diverse and difficult task that you have. Thank
you.
Chairman Grassley. Senator Tillis.
Senator Tillis. Thank you, Mr. Chair. Welcome, Secretary
Johnson. Thank you for being here and for your service.
I know that Senator Grassley, Chair Grassley, asked
questions about the Rangel-Hernandez case, so I will go back to
the record to see some of the specifics. I think that in your
answer you did mention that there have been some retraining,
revising the protocol--reviewing the protocol, revising it and
retraining so that we can avoid future instances of this, what
on its surface looks like negligent decisionmaking.
The question I had for you--or I have two questions. One, I
believe that Mr. Rangel-Hernandez's deferred status has been
rescinded a month or so ago. My question is, how many other
instances that have been identified in the audit or the review
that were similar to Mr. Rangel-Hernandez's, and what is the
current status of that review and the potential that others'
deferred status will also be rescinded in their disposition
after that?
Secretary Johnson. I know that there have been a handful of
others who have been identified in the same category. I do not
know the status of whether they have been rescinded or not, but
we can get that information to you, sir.
Senator Tillis. Yes. I would like to get that, and if
possible, and to the extent that the information is available
geographically, what we're talking about. If I have any other
instances in North Carolina, I'd like to know about it, but I'm
sure the other members would like to, would be interested as
well in each of their States.
I would like that, and particularly as we go through this
process, for those who were granted deferred status, if there
is a decision either because they've come up in the audit to
continue to allow them to have the deferred status or that it's
been rescinded, I'd like to get the information on both of
those.
Secretary Johnson. OK. We will look at that.
Chairman Grassley. Let me interrupt a second. Is there any
reason why you can't say, as I said in my opening statement,
that there's been 282 rescinded?
Secretary Johnson. Thank you for refreshing my
recollection. I believe that that is the correct number, yes.
Chairman Grassley. OK.
Secretary Johnson. I think that that is the correct number.
Chairman Grassley. I don't want to take time.
Secretary Johnson. I apologize for not being very good with
numbers.
Senator Tillis. Chairman, I'm glad you brought that up. The
question I'd have, does that mean it's an exhaustive list and,
in the opinion of the Department, there is no longer any need
for further review or are there other cases that are being
reviewed that may add to that 280 or so rescinded?
In other words, are there more or we've gone back and
identified potentially 280 that looked similar or had--had
characteristics similar to Mr. Hernandez's that warranted
rescinding their deferred status? Is that done? Are we done, or
are there more to look at?
Secretary Johnson. I believe that the review has been
completed. I could be wrong about that, but I believe the
review has been completed.
Senator Tillis. That would just lead to my next question
before I want to get on to the H2-B visa, a couple of questions
that I have. I asked the same question of representatives that
came to us from U.S. CIS and the State Department last week,
and that's why I think going back and confirming that these 280
are it. I'm looking to--I'm going to ask the same question of
you that I asked of the other two panelists last week.
Can you confidently and unequivocally say that in the
future the Agency will not make the same errors that were made
with Rangel-Hernandez, and that there were not any that should
be subject to rescinding, that the queue has been drained and
that the mistake that was made that allowed these folks to get
deferred action will not be repeated?
Secretary Johnson. I am confident that we have improved our
process so that if somebody with suspected criminal gang
membership is identified in the process, it's going to be
flagged and it's going to be given a lot of attention as a
result of this case.
Senator Tillis. It may or may not, affiliation with gang
membership, necessarily constitute a definitive reason for
rescinding their deferred status?
Secretary Johnson. Known membership in a criminal gang
should constitute a disqualifier.
Senator Tillis. OK. OK.
I'm going to move on to the H2-B program. Mr. Secretary, I
think that the Perez v. Perez case caused a little bit of a
problem, kind of a 2-week blip that for some reason adversely
affected my State, it may have affected others, particularly in
the seafood processing industry.
I guess the question I have for you really relates to
just--I want to go on the record--I have some things that are
North Carolina specific, so I don't necessarily want to tie up
the Committee time--with a couple of things. One would be, are
there any potentially unused visas that could potentially solve
some of the problem, the negative impact that's occurred in
North Carolina?
If the Department has any ideas on anything else that we
may be able to do to relieve them, it looks like this was
largely just the result of that 2-week period where visa
applications were not submitted. If you're prepared to speak on
it, I would appreciate to be enlightened.
Secretary Johnson. Yes, Senator. I have received a lot of
inquiries from Congress on H2-B visas from both sides of the
aisle. After the court's injunction we issued, on a temporary
basis, H2-B visas. The court and the litigants agreed to a stay
of the injunction so that we could do that.
My understanding is that when we did that we--we quickly
exhausted the number. Going forward, we have just issued a new
rule jointly by DHS and the Department of Labor that I believe
addresses this issue and addresses the lawsuit so that we can
continue going forward to issue H2-B visas.
Senator Tillis. Now, Mr. Secretary, that would apply going
into next year because it's my understanding we've already hit
the cap on H2-B visas for this year. So my other----
Secretary Johnson. Yes.
Senator Tillis. My other question: are there any other
things that we could do, given the unique circumstances of the
blip with Perez v. Perez? Are there any things that we may be
able to do to provide temporary relief until we move into next
year? I mean, some have talked about the potential for
temporarily increasing the cap or something else that may
still--for some of these seasonal industries, still provide
some relief. Has there been any discussion or anything you'd be
open to?
Secretary Johnson. I'd be open to a discussion about what
we can do temporarily to deal with this issue. I am interested
in having a more comprehensive discussion with Congress about
lifting a number of caps on green cards and addressing in a
more comprehensive way a number of things in which I think our
immigration system needs to be fixed through legislation, and
this very well could be one of them. I think that going forward
we have addressed the H2-B problem in a pretty aggressive,
vigorous way.
Senator Tillis. Thank you. My time has expired. I would
just like to state for the record, we're going to be calling
you all again because there--I'm going to be meeting with some
of the seafood processors this week. They're going to be coming
up from North Carolina.
I think it's the industry that's primarily been hit by the
H2-B program, in North Carolina, anyway, and I'd like to speak
with you all about anything that we can do to provide temporary
relief and hopefully avoid it going into the out years for the
program. Thank you.
Thank you, Mr. Chair.
Chairman Grassley. Senator Schumer, then Senator Flake.
Senator Schumer. Thank you, Mr. Chairman. Thank you,
Secretary.
Secretary, I was shocked and appalled--we've talked about
it on the phone--by the gun smuggling ring that operated out of
Atlanta, Georgia, in which criminals routinely abused loopholes
in the TSA system to bring loaded weapons right onto airplanes.
I know you shared my outrage when it was unveiled by our DA
in Brooklyn, Ken Thompson, and I applaud you for quickly acting
following the incident and ordering a top-to-bottom review.
Can you provide an update on security at our Nation's
airports, particularly the recent recommendations regarding TSA
activities? What changes can we expect, how long will it take?
Question one. I have a bunch of questions so I'm trying to move
through these quickly. How will you ensure that the new, as-
yet-unannounced TSA administrator is held accountable for
security at the Nation's airports?
Secretary Johnson. Good question. Senator, you said you
appreciated my candor at these hearings, so I have made a
public fact of the record number of firearms seized by TSA last
year. At screening points in carry-on luggage, you can imagine
my reaction when I found out that somebody's bringing loaded
weapons into the overhead compartments of commercial airplanes.
I was, to use your words, shocked and appalled, upset, and
I directed our TSA to work with the airline industry and to
work with airport security authorities to tighten up our
system. Our advisory committee came back with some
recommendations. I have endorsed them.
They include random, continuous, unpredictable screening of
airline and airport security airport employees at the sterile
checkpoints. If an airline or airport employee is going to fly,
they have to go through the TSA checkpoint. Continuous back--
criminal history background checks, and reducing the number of
access points. There were a number of recommendations made that
I have embraced.
Those are, in my judgment, the big four. I believe that our
nominee for TSA administrator is an excellent choice and I
believe that he will be very focused on aviation airport
security. I also believe his name will be announced sometime
this afternoon.
Senator Schumer. Oh. You don't want to let us in on the
secret? OK.
Just one question in regard to that quick answer. Wouldn't
it make sense that, wherever it's feasible--in some airports it
may not be--that whenever possible these employees go through a
screening the way the pilots do and the flight attendants do?
Secretary Johnson. You know, I asked myself that question
and I think that a one-size-fits-all approach to every airport
in this country is not----
Senator Schumer. I said wherever feasible, I didn't say
all.
Secretary Johnson. Atlanta is not Martha's Vineyard.
Senator Schumer. Right.
Secretary Johnson. There are 63,000 employees at the
Maynard-Jackson Airport in Atlanta. That's a small city. I
think that the appropriate, balanced way to go is random,
unpredictable, continuous screening of employees when they show
up.
The way it works in Atlanta, is there's a guardhouse at the
parking lot and you show an ID and then you drive on through. I
think that some form of continuous, random screening of those
people is the appropriate way to go.
Senator Schumer. Right. OK.
I have two questions on the northern border, separate, but
I'll ask you both so I can get them in before my time runs out.
One, is the Peace Bridge, another issue we've talked about
regularly. At my urging, Customs and Border Protection
instituted pilot projects. Your predecessor was very active in
helping that happen, as were you. We were thrilled to hear the
results last week. The pilot projects passed CBP's test with
flying colors.
They said that pre-inspection on the Canadian side will
reduce times and waits for commercial vehicles by as much as 75
percent. Will you commit to implementing the recommendations of
this report and starting talks with Canada to establish
permanent pre-inspection at the Peace Bridge? That's on that
one.
Then on the other end of our northern border up by
Plattsburgh, today I'm asking Customs and Border Patrol to
start a French-speaking program for officers at the Quebec
border. These officers are tasked with processing millions of
French-speaking visitors. They come to New York, they spend
their money, we love having them here.
Because we're hampered in French speaking, it slows the
border down and we get fewer visitors. Will you commit to
carefully considering my request for a task-based French-
language program for northern border agents, similar to the
Spanish program we have over on the southern border that Jeff
Flake is very familiar with? Those two questions.
Secretary Johnson. Last question first.
Senator Schumer. Yep. Sure.
Secretary Johnson. Last question first. I--I am not very
familiar with the Plattsburgh situation and I will look into
that, Senator, and I'm sure we will have a follow-up discussion
on it. I--I fully support Commissioner Kerlikowske's efforts to
restore and maintain pre-inspection on the Canadian side of the
Peace Bridge.
As you know, infrastructure--building the right
infrastructure for this is probably the biggest issue, and I
understand that we may have a resolution to that issue which I
think is very good.
Senator Schumer. Yes. The Peace Bridge is willing to put in
the $44 million to do it.
Secretary Johnson. Money talks, yes. I also believe that
privileges and immunities, as you and I have discussed, is
crucial. That is something that is important for the agreement
we signed for pre-clearance with the Canadians, but I also
believe legislation to implement that can be useful in the pre-
inspection context as well.
Senator Schumer. We just need you to get an MOU moving on
pre-inspection. Can you commit to getting that done as quickly
as possible?
Secretary Johnson. I will----
Senator Schumer. I know you need the Canadians to dance
with you, but they seem to be all right given how well you did
on pre-clearance.
Secretary Johnson. Whatever--whatever Commissioner
Kerlikowski and you have discussed and agreed to, I fully
support, sir.
Senator Schumer. Excellent. OK. Well, merci beaucoup.
[Laughter.]
Senator Sessions. Tres bien.
Senator Schumer. I actually had another question, but I was
so eager to say merci beaucoup I cut myself off. [Laughter.]
I'll add that question to the record, if there's no objection,
Mr. Chairman.
Senator Sessions. You can be sure there's no objection on
this side.
Senator Sessions. Senators Flake, Whitehouse, and Perdue.
Senator Flake. Thank you. Tough act to follow, let me tell
you.
I have made my concerns regarding Operation Streamline
known to the Department and to the Department of Justice. As
you're aware, Operation Streamline has been a very successful
zero tolerance policy that we have had on the border,
particularly in the Yuma sector. It's most in that sector a
tribute to the success at bringing that portion of the border
under control to Operation Streamline.
Yet, the U.S. Attorney's Office for Arizona has ordered
kind of a pull-back on that policy. I just toured the border,
toured Yuma and all along the border a couple of weeks ago and
there is a lot of concern there that, as word filters back,
that we don't have a zero tolerance policy anymore, that we're
going to start to see movement again.
There's a lot of concern in those communities along the
border that we're going to see an uptick. It won't take much.
As you know, word travels fast, as we learned in spades with
the unaccompanied minor issue that we had.
What can you tell me--let me just ask you, do you believe
that the program like Operation Streamline is an effective
deterrent to border crossing?
Secretary Johnson. I certainly believe that law enforcement
in general is an effective deterrent to illegal border
crossings. I've heard the same thing in Arizona about Operation
Streamline. As you know, Senator, I've visited with a number of
your constituents on the border.
In my judgment, what matters when it comes to illegal
migration on the southern border is that we cracked down on the
smugglers. With the Department of Justice, we ratcheted up our
efforts when it comes to prosecuting the coyotes last summer
because of the misinformation that they were putting out, and
with the Department of Justice we've made considerable headway
in the prosecution of the smuggling organizations.
I believe that has contributed to our overall efforts on
the southern border. I do note that the numbers overall of
apprehensions are down considerably on the southern border,
including in each of the--the Arizona sectors. That continues
to be a good thing, but I also believe that we need to continue
our efforts. I think that law enforcement in general is an
important part of that.
Whether that should include prosecuting the illegal
migrants, I think, should be made on a case-by-case basis. You
can't federally prosecute every single illegal migrant for a
felony prosecution. I think that those judgments have to be
made carefully and they ought to be made wisely because it's a
use of DOJ's resources.
Senator Flake. When you talk about going after the
smugglers, this--the effectiveness of that program, I would
submit, and those who are on the border would submit, is that
it does go after the smugglers because if smugglers lose those
who are in their charge for a week of detention, that's a big
deal and it makes them re-think and makes them direct their
focus elsewhere. That's been the history and that's why there's
such concern, that as word filters down that these prosecutions
aren't going to happen, then we're going to lose control again.
We can't afford to do that.
Are you aware of specifics of the Operation Streamline
changes? Is that what it is, just case-by-case basis, no
overriding policy of zero tolerance?
Secretary Johnson. I do know, from people in Arizona, that
they think very highly of Operation Streamline and they believe
that it contributed to overall border security in Arizona.
That's what they have told me.
I have to assume that the U.S. Attorney in Arizona is
continuing to prosecute, in certain cases, cases of illegal
entry or illegal reentry, but I don't know firsthand what the
U.S. Attorney's current policy is there.
Senator Flake. I would just note that Operation Streamline
was included in the 2012 to 2016 Border Patrol strategic plan,
so it's part of your Department's plan. I would hope that we're
working closely with Department of Justice to make sure that
their actions are in line with that plan, because like I said,
in certain sectors it's had great effect and we don't want to
lose that.
Let me turn, quickly, to an issue that Senator Grassley
raised, the so-called Quick Trip Murder detention of Mr.
Alamarano. This is a man who was charged with murder. We've not
yet received a response on this. As you know, he was charged--
I'm sorry, he was released, ICE failed to remove him. ICE said
that he was eligible for bond at $10,000, which he posted.
While out on bond, he reportedly had two injunctions issued
against him for complaints of harassment. One woman feared for
her life because he threatened to kill her ``plenty of times''
and pointed a gun at her boyfriend. Two years after his
release, 3 days after the second injunction was issued, he was
alleged to have committed this murder. Was ICE aware of these
civil injunctions against this man?
Secretary Johnson. I don't know whether officials at ICE
were aware of the civil injunctions, but as I said earlier,
Senator, that case is definitely a tragedy and that individual
should not have received DACA. He should not have been in the
DACA program. As a result of this case, we have retrained the
force, we've conducted a retroactive review. I don't know the
answer to your specific question.
Senator Flake. Excuse me. He wasn't in DACA. This wasn't
part of DACA, he was just slated for removal and then posted
bond.
Secretary Johnson. Sorry. OK.
Senator Flake. Is that correct?
Secretary Johnson. I'm sorry, Senator. I have my cases
confused.
Senator Flake. Right.
Secretary Johnson. I thought you were referring to another
individual.
Senator Flake. Yes.
Secretary Johnson. I don't know the answer to your specific
question.
Senator Flake. Is there--Do you have a policy where you
work with local law enforcement to find out if there are any
civil injunctions against individuals like this that post bond
that are out?
Secretary Johnson. I do know that those in removal
proceedings, when they're being evaluated for release, there
ought to be a background check conducted. There ought to be,
and there should be--and I believe there is--an evaluation of
risk of danger to the community, just like in the criminal
justice system.
Senator Flake. If there is some kind of procedure like
that, it failed miserably this time and I would just ask if ICE
had been aware that there were two injunctions against an
individual like this, would ICE have taken against him to
remove that?
Secretary Johnson. I don't know the answer to your specific
question, sir, but we will get you that.
Senator Flake. I'd like to find out if there is a policy
where there's some communication between local law enforcement
and ICE here with regard to civil injunctions against
individuals like this. Can you make me aware of that, and if
not, advise some kind of remedy for that?
Secretary Johnson. Yes. Yes.
Senator Flake. Thank you. I see my time is expired. I'd
just mention one thing, quickly: ports of entry staffing.
That's when we've committed to 2,000 new agents at the border,
Customs and Border Protection, CBP, the blue uniforms. CBP
officers. We've got to make sure that they're hiring.
I hear that that's going more slowly than we thought that
it should. Is there any plan to speed that up to make sure that
we have the staffing? We've got better infrastructure there
now. We've just got to make sure the staffing levels are there.
Secretary Johnson. The answer to your question is yes,
there is a plan to speed it up.
Senator Flake. Thank you. Thank you.
Chairman Sessions. [Presiding] Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Welcome, Secretary Johnson. Good to see you. First of all,
let me thank you for your work on immigration enforcement and
express my regret that we could not pass the bipartisan
immigration reform bill through Congress entirely that would
have, I think, made your job a lot clearer and simpler and
significant responsibility for the immigration mess that we're
in now lies with Congress, not with you, and with Congress for
failing to pass the Senate's bipartisan bill, which I was a
strong supporter of.
I would like to talk with you about cyber security. The
Majority Leader has announced that he's going to try to have
cyber week here on the Senate floor at some point. There's a
lot of activity in the House. We have bipartisan bills that are
pending on information sharing between Federal agencies and the
big communications providers, on agency public reporting of the
cyber threat, to increase public awareness, of coordinating
national notification when companies have data breaches, and on
updating some of the criminal penalties.
When we first were working on comprehensive cyber security
legislation, another main piece of this effort was on the
critical infrastructure piece. What I hear quite widely is that
the DHS-led framework process that has pulled together a great
number of critical infrastructure industry sectors is going
very well and that as a result of that there is no immediate
pressure for legislation in that area.
There may not be an immediate need for legislation in that
area, but of all the different areas that I mentioned where
there will be legislation, protecting our privately owned
critical infrastructure is probably the most significant
national security element.
I'm interested in getting your assessment of how that
framework process is going and when you think it might be
appropriate for Congress to begin looking at legislating in
that area. I expect that the executive process will yield
recommendations as to what should be done next, and I don't
know what timeframe you feel you are on toward that goal.
Secretary Johnson. Senator, as I'm sure you know, the
framework process was in lieu of any effort to legislate. I
share your assessment on what you're hearing, that the
framework process has been going well. It's been well received
in the private sector and it seems to be working pretty well. I
also want to applaud those in Congress who were active in cyber
security legislation.
I am largely very supportive of the bill that passed the
House last week, sponsored by Chairman McCaul and others. I
think that, frankly, some legislation is better than no
legislation and I think that information sharing between the
private sector and the government is crucial. Any efforts by
the Congress to promote and endorse that is crucial.
I also believe that a form of immunity limitations from
civil and criminal liability for those who share cyber threat
indicators with the Department is crucial, and I believe that a
national data breach notification requirement is also very
important. I'm pleased that we are active legislatively in
those areas. In terms of the----
Senator Whitehouse. That leaves us with critical
infrastructure.
Secretary Johnson. In terms of your precise question, I
haven't thought about it the way you've asked it. I'd want to--
I think it's a thoughtful question worth--worth--worthy of a
thoughtful answer. Let me consult. I'd like to consult my--my
NPPD community and get to a thoughtful answer to that.
Senator Whitehouse. OK. I do think that there is a
bipartisan sense that the framework process run by DHS has been
effective, has achieved significant national security goals,
and has enjoyed the support and cooperation of the private
sector. All of that is the good news part.
The question is, is it enough and is there a time when
really implementing on it will require action from Congress,
and how far out you see that coming, because obviously when
it's as important as a protection of critical infrastructure,
we want to be able to act pretty rapidly.
Being prepared if it's going to be next year, there's a lot
of conversation that has to take place on this issue. Again,
very strong bipartisan support, but it's not an easy one. A
preview of coming attractions would be very good.
My second question is in the same area. I'd like to ask
you, and maybe even urge you, to consider what the structure in
the executive branch for addressing our cyber security concerns
looks like. There's an awful lot of division and sequestration
in the old sense, not the budget sense, of effort within the
Department of Justice. It's divided into two separate sections,
criminal and national security. On the investigative side, it's
divided between FBI and Secret Service, with other agencies
having even smaller pieces.
If you look at the data, you have the NCCK, which is a very
well-regarded facility. The FBI has the NCIJTF. The
administration has just announced its, what are they calling
it, Cyber Threat Intelligence Integration Center. From the--
from our side of the legislative-executive divide, this looks a
lot like multiplicity and confusion.
When you consider the scope of the cyber threat, the fact
that we have an agency like DEA that is dedicated exclusively
to narcotics trafficking, and we have an agency like ATF that
is dedicated exclusively to alcohol, tobacco, firearms, and
bombs, and no specific dedication of a single agency to this
rapidly emerging and very persistent and dangerous cyber
threat, I just think we have more work to do to set up the
administrative structure that's going to allow us to be most
effective at doing this.
I'd urge you to consider that and to work with OMB and DOJ
to try to think 5 years ahead. Every 6 months, Mr. Secretary,
there's a new wrinkle in the administrative process for doing
this and some new announcement is being made about some new
agency or some new feature, and I think we need a long-term
strategy and I don't think we have it.
Chairman Sessions. Thank you, Senator Whitehouse. I would
share that concern. I know, as you know, the Defense Department
is conducting a major review of their cyber security
vulnerabilities. We're going to have to spend a lot of money on
that, but it goes throughout the entire government. The more we
coordinate our effort to learn how to technologically protect
our systems, I think we save money and make America a safer
place. Thank you for raising that.
Senator Whitehouse. Mr. Chairman, to echo your point, I
mean, on the military side they have Cyber Command and they
really have set up, you know, with two four-stars on the top of
it, a very coherent administrative structure for taking the
cyber issue and making sure that it's addressed in a direct and
comprehensive way.
If you take that clarity of structure in the military side
and you move it over and try to apply it to law enforcement,
it's very scattered. I know there are lots of turf issues and
all that kind of stuff, but it just doesn't look like we've got
it right yet. Thank you, Chairman.
Chairman Sessions. Thank you.
Secretary Johnson. Chairman, may I--may I comment, please?
Chairman Sessions. Yes, briefly. Then we'll go to Senator
Perdue.
Secretary Johnson. I understand.
Chairman Sessions. Yes.
Secretary Johnson. I'm looking forward to the Senator's
questions.
Chairman Sessions. All right.
Secretary Johnson. As the former lawyer for the United
States military, I think that it's the first time I've ever
heard anyone referred to the DOD structure as having clarity of
structure. That's--that's pretty good news.
Senator Whitehouse. On cyber, it does.
Secretary Johnson. Senator, I look at it this way. The
Department of Homeland Security, and specifically our NCCK, is
intended to be the interface--the primary interface of the
Federal Government with the private sector.
We have, as I think your question implies, a number of
different law enforcement agencies involved in investigating
cyber crime and a number of different agencies, including DOD,
NSA, Cyber Command, dealing with cyber security generally,
offensively and defensively.
I came in the office and I looked at all of that much the
same way you look at it and what I have committed to do with my
cyber security counterparts is--and I know them well. I've
known Jim Comey for 26 years. I know Mike Rogers because he
used to be my client. I know Jack Lew. The Commerce Department
wants a piece of this, too.
I have committed to my workforce and to them that we're
going to meet regularly, we're going to work together because
we don't want turf wars. Turf wars are counterproductive and
they don't serve anybody's interests, most of all the American
public's.
I believe that we can, and we should, and we are working
more effectively, better, and without the turf battles. A lot
of it, frankly, is due to personalities. If you have people at
the top of these agencies who know each other and trust each
other and work well together, we can minimize the confusion and
the inconsistency. I do recognize that there are a lot of
agencies involved in cyber security.
Chairman Sessions. Thank you. Senator Perdue.
Senator Perdue. Thank you, Mr. Chairman.
Mr. Secretary, I just want to say for the record how much I
appreciate your forbearance and courtesy earlier in our private
meetings and for your public service. It is a very difficult
mission you've been given.
In the spirit of oversight, I'd just like to ask a couple
of questions. Your predecessor, Secretary Napolitano, in 1913,
talked about visa overstays. A big part of--or a large
percentage of illegal immigrants in this country came in this
country legally and just overstayed their visa.
Can you give us an update on that report? I think you
mentioned something about this about a year ago as well. Can
you just give us an update on that report?
Secretary Johnson. I saw a preliminary report a while ago,
which in my judgment lacked fidelity, to be quite honest. I
told my people I wanted them to go back and look hard at this
issue and, even if it means consulting people on the outside,
let's give our best estimate at visa overstays. The work I've
seen so far has not been satisfactory, such that I am prepared
to give it to the Congress or to give it to the American public
as something I'm prepared to stand behind.
Senator Perdue. OK.
Secretary Johnson. Unfortunately, and I know this has taken
some time, it continues to be a work in progress, but I do want
to get to the right answer.
Senator Perdue. I appreciate that. Do you have--can you
give us a sense of when we might expect to see that?
Secretary Johnson. I ask that exact same question of my
people routinely and I'm told that we're getting closer.
Senator Perdue. I'll take that to be months and not years.
Is that reasonable?
Secretary Johnson. Yes, sir.
Senator Perdue. Thank you.
Without getting into politics, and again, in the spirit of
oversight, going back to this case in Texas on the immigration
issue, the executive amnesty issue, there's a conflict between
the injunction that the judge put on that and the actions of
the DHS and mainly the comments of the President.
Can you comment, given that the President seemed to
indicate that he was interested in being prepared and that
there were some 100,000 renewals done, I think, in the first 3
weeks. That upset the judge, he made a comment. The President
responded. Can you just give us some clarity about what exactly
the DHS is doing now in relation to that case and being
prepared for the outcome?
Secretary Johnson. In reaction to the injunction, which has
not been stayed, we have shut down our implementation of the
DAPA program and the expanded DACA program. We did that very,
very soon after the injunction became known to us, so we're in
compliance with the court order.
The things that we were trying to put in place, that we
were putting in place, will either be discontinued or they will
be diverted to some other use that we have, principally within
CIS. We're complying with the court's injunction because we
have to. There's no stay.
Senator Perdue. There's no--there's no ongoing preparation
for what you were doing originally or what were planning to do
originally under the original guidance?
Secretary Johnson. No. The--we--the implementation of the
program, which had begun after November 20, we've had to
suspend.
Senator Perdue. I see.
Let me go back to the gang member issue. I just want to ask
about a recent decision of the Fourth Circuit that involved
removing gang members under--under the INA. I'm sure that--
well, in that case, individual gang membership may constitute a
protected characteristic that can title--that can entitle the
individual to relief from removal or entitle them to asylum.
Basically, the rationale is like, if you're in MS-13, for
example, you might be in danger in your home country if you
claim that you renounce your gang membership, you turn State's
evidence, and now you can't go back. I think it's pretty
obvious that--that we could be set up for significant fraud
there. How do you interpret, you know, that ruling by the
Fourth Circuit and has it changed any of the procedures ongoing
in DHS?
Secretary Johnson. Senator, I have to confess, I'm not
familiar with that Fourth Circuit decision.
Senator Perdue. OK.
Secretary Johnson. Let me--if you don't mind, let me take
that question for the record for you.
Senator Perdue. Sure. That'll be great. We'll submit it in
writing. That would be great. I would appreciate that.
Last, can you give us an idea of how you go about
estimating the number of people that cross our southern
border.? I mean, I know that's--there is no accurate number,
and I know it was asked earlier today, but is there an
attempt--I know we have this--this big number called illegal
immigrants that we're monitoring, we've got this study you're
working on visa overstays.
In terms of the people that come in illegally, what are we
doing in DHS to sort of quantify that so you know how to deploy
resources? This is, again, just an oversight, not a political
question.
Secretary Johnson. We have apprehensions which, in the
judgment of the professionals, is an indicator of total
attempts to cross the border, and so the report I issued last
week talked about apprehensions. There is an attempt also to
measure what the Border Patrol calls turn-backs and get-aways.
That number is one that I think we can do a better job of
trying to quantify so that we get to total attempts to cross
the border.
I'm interested in getting to that number and so I've
consulted with outside experts, I've consulted with my own
people, about arriving at a way to measure total attempts.
There are various ideas out there, some of which are published.
The Council on Foreign Relations has done some good work in
this area, which includes surveys of people south of the border
and what their behavior might be.
I'm interested in more transparency in this and more
clarity when it comes to total attempts to cross the border. It
is--it is not an easy exercise and there is a certain unknown
factor when it comes to people who evade capture, who evade
apprehension, and so I'm interested in getting to a better,
clearer measurement of that. I agree with the sentiment of your
question.
Senator Perdue. When you get that information----
Secretary Johnson. In the absence of that, total
apprehensions I take as an indicator of total attempts to cross
the border. So that's something----
Senator Perdue. I appreciate your approach. I appreciate
your quantitative approach. When you get that information would
you share it with us at the appropriate time? We'll put that in
a written record question as well.
Senator Perdue. Again, thank you for your service.
Mr. Chairman, that's all I have.
Chairman Sessions. Thank you. Senator Perdue, here's an
article on March from, I believe, the Washington Times. Maybe
not. It said, talking about a House hearing on this question, a
Border Patrol agent, while testifying before--actually it was a
Homeland Security panel, Senator Johnson's committee--and
indicated that nearly 6 out of every 10 aliens who attempt to
infiltrate the United States through the U.S.---Mexico border
are not apprehended. That's his estimate.
He went on to say, ask any line agent in the field and he
or she will tell you, at best, we apprehend 35 to 40 percent of
the illegal immigrants coming, attempting to cross. This number
is even lower for drug smugglers who are much more adept at
eluding capture.
He said, quote ``'Agents who repeatedly report groups
larger than 20 face retribution. Management will either take
them out of the field and assign them to processing detainees
at the station or assign them to a fixed position in low-volume
areas as punishment', Caverra told the lawmakers. Needless to
say, agents got the message and now stay below this 20-person
threshold no matter the actual size of the group.''
Mr. Johnson, you're the head person of this entity. Have
you investigated this charge about agents being told not to
have more than 20, to report more than 20 if they see more than
20?
Secretary Johnson. I've heard of that allegation. I've
heard of that charge. I've looked into it. I don't have a
specific answer to that suggestion. I will say this, Senator. I
think that 6 out of 10 is too high an estimate, and I base that
on my own conversations with Border Patrol experts.
I will also tell you this, sir. I spend a lot of time
myself on the southern border with our men and women in uniform
in the Border Patrol because I want to hear directly from them
what they say is happening on the southern border. I'm not
interested in intermediaries.
Chairman Sessions. Have you met with Chris Crane, the head
of the ICE association?
Secretary Johnson. I've met with Mr. Crane, too.
Chairman Sessions. How many times?
Secretary Johnson. At least once in my headquarters office.
I invited him to come in and I believe there was probably at
least one other time as well.
Chairman Sessions. What about Mr. Palinkas on the U.S. CIS,
have you met with him?
Secretary Johnson. I don't recall that name but it's
entirely possible.
Chairman Sessions. The association. These are the top
people. You've got the lowest morale in the government in your
agency and the reason is because they know you're not serious
about supporting them in the mission that they've been given.
They filed a lawsuit against Secretary Napolitano, asserting
that they're being required not to follow the law.
Look, we've got a problem. I know--I'd like to have a nice
conversation here, but this administration has been
systematically seeking not to see the laws enforced. They're
focusing more and more on ameliorating the concerns of people
who enter the country illegally than they people--are that come
lawfully.
He also said this, Mr. Caverra did in his testimony: ``I
want to be crystal clear, the border is not secure. How can
this enormous gap exist between what you, DHS, tells you here
in Washington and what our agents know to the be the truth in
the field? Frankly, it is how you manipulate statistics.''
Close quote.
I think statistics are manipulated. You're saying we have
more removals, a big increase in removals, but you started
counting, I believe, before you took office. Ms. Napolitano
started counting the turn-arounds at the border as removals.
They had never been considered that before. Without those, you
haven't had an increase in removals.
In fact, you have a significant decline. I think you've
acknowledged, have you not, that those--that counting is a new
system of accounting that counts the apprehensions at the
border as removals. Answer--you admitted that or acknowledged
that to Mr. Culverson, the House member, in a House committee
meeting.
Secretary Johnson. I'm not sure what you're referring to,
sir, but I----
Chairman Sessions. He asked you this: ``More than half of
those removals''--I'm quoting Representative Culverson--``that
are attributed to ICE are actually a result of Border Patrol
arrests that wouldn't have been counted in prior
administrations.' Mr. Johnson: 'Correct' ''.
Secretary Johnson. Sir, I have learned from 30 years of
cross-examining witnesses that if I am to answer such a
question I think I'd want to see the Q&A before and after if
you don't mind, sir. [Laughter.]
Chairman Sessions. Look. Isn't it the truth? Haven't you
all--isn't there a new thing under the--in recent years to
start counting both, or you don't know?
Secretary Johnson. Sir, I do know this.
Chairman Sessions. You're the Secretary. You should know.
Did you change the standards? I've got a chart here somewhere
that show the actual numbers. Actual removals on the ICE chart
show Border Patrol numbers along with ICE. That increases the
numbers. It's about 300,000. Only 100,000 are what were
classically called removals previously.
Secretary Johnson. May I read you something?
Chairman Sessions. Yes.
Secretary Johnson. This is one of my--this is one of my
directives from November 20th. If you'll just bear with me a
second.
Chairman Sessions. The chart I just looked at was an ICE
chart in 2014, September 20, 2014, when you were in office.
Secretary Johnson. I've heard the suggestion of double
counting, and if there's double counting that obviously should
not happen. One of my directives from November 20 is I am
directing the Office of Immigration Statistics to create the
capability to collect, maintain, and report to the Secretary
data reflecting the numbers of those apprehended, removed,
returned, or otherwise repatriated by any component of DHS and
to report that data in accordance with the priorities set forth
above. I want our components to cooperate with this effort. I
intend for this data to be part of the package of data released
by DHS to the public annually. So I'm interested in getting
this----
Chairman Sessions. OK. I appreciate that, but let me tell
you what is happening. You can call this double counting or
not. Border Patrol apprehends people at the border and they're
sent back and they count those as their numbers. ICE used to
only count what they did from the interior. They count that,
plus the Border Patrol. That's the fact. Without those
additional numbers, they don't show the improvement the
Department has been declaring.
With regard to Streamline that you were asking about, this
is really important, Mr. Secretary. Secretary of Homeland
Security Janet Napolitano said, ``Operation Streamline has
proven effective''. It's a program where people, when they're
caught at the border, are actually prosecuted for the offense
of entering the country. They are convicted of misdemeanors.
They aren't kept in jail a long time, but they have a
conviction on their record. That was a belief that it might
deter more people from coming and it was the right thing to do
since it violates the law.
In the Dell Rio sector, after this was done, overall
apprehensions declined from 42,000 to 17,000. In 2008, Attorney
General Michael Mukasey said, ``The program has an unbelievable
return effect in the Yuma sector. From October through December
2008, the Department of Justice prosecuted over 1,200 cases.
As a consequence, apprehension rates dropped nearly 70
percent. What we see both statistically and anecdotally is that
when people who cross the border illegally are brought to face
the reality that they are committing a crime, even if it's just
a misdemeanor, that has a huge impact on their willingness to
try again and on the willingness of others to break the law
coming across the borders.
In Fiscal Year 2007, former Homeland Security Secretary
Chertoff noted that apprehension rates in Yuma dropped nearly
70 percent after Operation Streamline. Recently, the president
of the Border Patrol union for the Yuma sector, Brent
Orsoncroft, said, quote ``Operation Streamline is one of the
last strongholds we have as a deterrent.''
Have you talked to the Department of Justice to attempt to
restore this and actually expand it? If the number of people
who are coming has reduced, it would be even more effective and
more practical to initiate these kind of prosecutions. Now, you
have to defend your agents. These are crimes. I think you
should demand Department of Justice prosecute them.
Secretary Johnson. Senator, I speak to the Department of
Justice all the time about how we are enforcing our immigration
laws. I do know that our apprehension numbers are down this
year in every sector, including Arizona, including Texas.
In my view, that's a good thing and I think it's a good
thing as a result of a number of different efforts, including
our law enforcement efforts and our additional resources on the
southern border, our efforts at public messaging, the good help
we've received from the Central American governments, and from
the Government of Mexico. In fact, our apprehension numbers are
down.
Chairman Sessions. Why don't you continue this program that
everybody has bragged on so consistently as having a real
impact, as much as 50 percent reduction in attempts, in the
sectors where Streamline is utilized? Why don't you do that?
Secretary Johnson. Because I don't----
Chairman Sessions. Is there some reason you don't want to
do that?
Secretary Johnson. I don't know----
Chairman Sessions. It used to be done.
Secretary Johnson. I don't know that prosecuting every mom
with a young woman--with a young child crossing the border for
a Federal crime is the way to go. I do believe that the more
effective way to go is to focus on the smugglers, focus on the
coyotes who are bringing these people are across. Nobody
freelances.
Chairman Sessions. Right.
Secretary Johnson. They're all brought at the hands of a
criminal smuggling organization. I want to get at the source,
and that's what we're doing.
Chairman Sessions. Secretary Chertoff said it dropped
nearly 70 percent, others have said high numbers. Even
Secretary Napolitano has bragged on the program. Senator Flake,
on the border, and his predecessor Senator Kyl thought this was
one of the most effective things that's ever been done on the
border, and you've allowed it to stop. I guess you could blame
Attorney General Holder, but if you haven't complained about it
I don't see how you can blame him.
I'm sorry. Senator Coons, you've arrived. Thank you. I will
yield to you. Maybe the Secretary could respond if he's like
to. I don't mean to cut you off.
Secretary Johnson. My point is this, Senator. We work with
the Department of Justice all the time on the most effective
and efficient way to enforce our immigration laws. What we
determined to do last summer was to go after the smugglers.
Everybody who crosses is paying these smugglers thousands of
dollars per person to do this. They don't freelance. We've
determined to go after the coyotes, go after the smugglers, and
I think that that has made a difference, sir.
Chairman Sessions. I have no doubt. I don't know why you
waited so long. Secretary Coons.
Senator Coons. Thank you, Senator Sessions, and thank you,
Secretary Johnson, for your service and for your testimony
today, for the chance to continue our conversation on a number
of issues.
Let me first start with cyber security, as legislation is
being considered. The administration, if I understand
correctly, has issued a statement of policy supporting the
goals of cyber information legislation, but warning that more
needs to be done to protect the privacy of Americans so that
the current cyber security bill does not become a foreign
surveillance and intelligence bill.
Can you expand on that and talk a little bit about how you
view the Department of Homeland Security's proper role in
preventing personal user information from being shared with the
NSA or CIA?
Secretary Johnson. Through the proper--this is a balance.
Through the proper screening of PII, of cyber----
Senator Coons. Personally identifying information?
Secretary Johnson. Yes. Sorry. I don't normally use
acronyms. The proper screening of them, but in as near real-
time as possible because we also need speed. The inter-agency
wants and needs speed and we're developing systems now that can
screen out the personal identifiers, while getting the
information our inter-agency partners need.
I also know that cyber threat indicators, which is what
we're most interested in, rarely have what we would--what you
and I would consider personal identifiers in them, but if they
do, they should be screened out.
We're working on getting both the speed and limiting the
dissemination of personal identifiers from the agencies that
should--should not get them, and so that's a project that I'm
focused on, irrespective of whether or not Congress acts on
legislation, but I really hope that you do.
Senator Coons. Does the Agency currently have the resources
to do both of those, to screen out all the personally
identifying information and share appropriately----
Secretary Johnson. We're on a project right now at the
NCCK----
Senator Coons. Right.
Secretary Johnson [continuing]. to promote exactly that and
get us in a better place on exactly that.
Senator Coons. That's encouraging, and I appreciate your
ongoing focus. Privacy is a critical component of our security.
When you were last before our Committee June of last year
we discussed three topics specific to immigration and due
process, where I would like an update on where we are so far.
First, you recognized the legitimate law enforcement
concerns around enforcement actions happening near courthouses.
Immigration enforcement at or near a courthouse undermines
public safety and impedes access to justice by sending the
message that going to court is dangerous for those who might be
here in an undocumented status because it can lead to
deportation.
Has the Department clarified its procedures on courthouse
enforcement?
Secretary Johnson. Yes, we have a policy. I confess, I
haven't looked at it in a while but I know that ICE considers a
courthouse to be--and I'm not going to get the words exactly
right--protected space, or a special place. There are, and I
believe there should be, exceptions for genuine public safety
threats, but we do have a policy.
Senator CoonsT1. We also discussed----
Secretary Johnson. I can get you the exact policy, but we
do have a policy.
Senator Coons. I would appreciate----
Secretary Johnson. Yes.
Senator Coons [continuing]. some follow-up on that if we
could, Mr. Secretary.
We also discussed nighttime and lateral repatriation and
you said you were working with the Mexican government on this,
and acknowledged the DHS policy since 2004 has been against the
needless separation of families. I wondered if DHS had ceased
the practices of lateral and nighttime deportations and
repatriation.
Secretary Johnson. As a result of discussions that I had
with the Mexican government last year, we now have a steering
committee in place between the U.S. and the Mexican governments
to better coordinate repatriations to designated places at
designated hours. We do not have a policy of separating
families. I don't think that's a good idea. I want to
discourage that. We do not have--that is not part of our
policy.
Can I envision an exception or two for logistics reasons?
Yes. Since last year we have moved away from night
repatriations and we're working now with the Mexican government
much more effectively at identifying for them when we return
people, logistically working with them to do so in a more
controlled way.
Senator Coons. Thank you.
A third area on this general topic, we discussed previously
providing what are called the A files to immigrants facing
deportation so they don't have to spend time going through the
FOIA process.
You said you would look into that and I didn't know whether
DHS had begun to routinely provide A files to aliens in
deportation proceedings, something that we had agreed in that
previous exchange about it would be, frankly, in the interest
of justice and reduce the time and cost of deportation
proceedings.
Secretary Johnson. I do know--I do know we now have a--I do
know we now have a policy on that. We also have a policy
concerning congressional requests for A files. Sitting here,
I--maybe this is because it's--I've been here a while. But
sitting here----
Senator Coons. I recognize I am the last questioner, Mr.
Secretary.
Secretary Johnson [continuing]. I can't remember exactly
what the policy is, so let me get you that for the record.
Senator Coons. Please do. I'd appreciate both follow-up and
some clarity about what the Department needs to get us to a
place where you're following what I think is the appropriate
process here.
Secretary Johnson. OK.
Senator Coons. Let me move to U.S. v. Texas and the
executive actions. I'd like to get your response to some of the
factual----
Secretary Johnson. That one, I haven't forgotten about.
Senator Coons. I suspect you haven't. You may have had some
vigorous exchanges on that. I just wanted your response to the
factual findings and legal conclusions the Texas judge made in
blocking temporarily your efforts to use prosecutorial
discretion to enforce our law more sensibly, efficiently, and
justly.
The court ruled your directives would have foreclosed DHS
discretion to adjudicate each case on its merits. Did your
directives actually foreclose your discretion, and what about
that of DHS employees?
Secretary Johnson. As I noted earlier, in at least two
places Judge Hanen said in his opinion that the discretion of
the Secretary to decide how to devote his resources, where to
focus his resources, should be unquestioned. He did say that.
As part of--and the district judge seems to feel that the--
seems to believe that the policy is an across-the-board hands-
off for a whole class of people.
The way the new policy is set up and the way it's written--
and I wrote it--it's to be a case-by-case assessment of whether
somebody represents a threat to public safety, border security,
national security, and in fact there is written into the policy
something that did not exist in the old policy, the DACA
policy.
Among the criteria for consideration by an examining
officer is, in addition to has this person been in the country
5 years, do they have a child who's a citizen or lawful
permanent resident, does the applicant present any other
factors that, in the exercise of discretion, makes the grant of
deferred action inappropriate? That's an additional factor.
I want to encourage a case-by-case assessment of each
applicant to see whether or not they are appropriate for
prosecutorial discretion. I know that there's a lot of
disagreement in Congress, on this Committee, about the
appropriateness of deferred action.
I think back to when I was a prosecutor. We used to enter
into deferred prosecution agreements with individuals based on
a case-by-case assessment, and so I think this is an extension
of that. Is it a large extension? Yes. Is it a potentially
large pool of people? Yes. It is intended to be a case-by-case
judgment, and I think that that's part of the inherent
authority of the Secretary, of the executive branch and the
enforcement of our immigration laws.
Senator Coons. The court also ruled that the government
would not suffer any significant harm through delay, through
the impact of a temporary delay in your efforts. I just, if I
might, Mr. Chairman, would be interested in your answer to what
impact this delay is having on the government, on individuals
who would otherwise be qualified for deferred action, on our
economy, any observations you'd care to make about the impact
of delay.
Secretary Johnson. I know that there is a tremendous level
of disappointment in the community. There was a lot of
enthusiasm for the new program in the community; I saw it
myself personally in places like Chicago, Los Angeles.
The injunction requires us to turn on a dime and shut down
all of our implementation efforts which we have done, and I
believe that this period while the program is enjoined could
have a lasting impact on the overall success of the program
because the community is confused, there's uncertainty, there's
probably anxiety about going forward with something that's an
item in litigation.
I think it has created significant--a significant--
significant set-back to the overall success of the program and
it's, as long as the injunction's in place, a--a huge
uncertainty overhanging CIS's operations and ability to
function. The stay application is, I believe, last time I
looked, still pending with the Fifth Circuit, and we'll see how
they rule.
Senator Coons. Would the Chairman suffer through one more
quick question?
Chairman Grassley. OK.
Senator Coons. As we have discussed before, DHS assistance
to State and local law enforcement is critical to our work
together to combat terrorism and extremism to keep our
communities safe.
Secretary Johnson. Yes.
Senator Coons. I just wondered if you thought there were
any areas where you believed DHS assistance and support to
State and local law enforcement was deserving of our particular
attention, and I want to thank the Chairman for his indulgence
of my last question.
Secretary Johnson. I think that cooperation, information
sharing with State and local law enforcement, given how the
global terrorist threat is evolving, is becoming more and more
important. I mean, I think it's key that because of the threat
of the independent actor, the so-called lone wolf who is not
somebody that our intelligence community will necessarily
detect overseas, it's crucial that cops on the ground and local
law enforcement see what we see in terms of potential terrorist
threats to our country. We issued--we issue, almost on a weekly
basis now, joint intelligence bulletins to local law
enforcement. We issued a pretty significant one last week. I
was just with the Commissioner of Police of the city of Boston
yesterday talking about this exact issue, and I think it's got
to be the wave of the future in terms of working with--
partnering with State and local police, law enforcement.
Senator Coons. I appreciate your attention to that. I thank
you for your answer, and I thank the Chairman's forbearance for
that question. Thank you, Mr. Secretary.
Chairman Grassley. Senator Sessions.
Senator Sessions. Senator Coons, the 9/11 Commission issued
a number of recommendations, after that terrible day, when they
did their report. One of them was that we have a biometric
entry/exit system. We've had that in law for--since 2002. It is
not in effect today. We--you know if you do an i-Pad or i-
Phone, you just put your fingerprint on it and it reads it.
It's very practical for a person coming in an airport to
put their finger on. They have a visa for a certain number of
days, and when they exit they should go out and put their hand
on it and clock out. The exit visa has never been done.
Just last--and the 9/11 Commission says there's no way you
can have control over visas if you don't do that, which is
plainly true. So we've discussed it for years. It's a
requirement of law and it can be done. When can we expect it to
be done, Mr. Secretary?
Secretary Johnson. I'm sure you know, Senator, we have
biometric entrance--entry now for large classes of travelers.
I'd like to see us have biometric exit because I agree with
you, I think it promotes security. I think it is a good thing
to have. I know it's a 9/11 Commission recommendation. It also
involves a huge commitment in terms of resources to have this.
Senator Sessions. Let me ask you, so the 9/11 follow-up--
Commission follow-up report criticized the government. One of
the most severe criticisms was not implementing what they
recommended a decade ago.
Have you asked the Congress for any money? Have you laid
out a plan on what it would take to have an exit system and
asked for the resources to get it done?
Secretary Johnson. I believe that we have at some point,
and it's something that I would like to see get done.
Senator Sessions. I would hope you would send that. We'll
review the record and I definitely think so, that we should do
that, and I'm glad you would agree.
With regard to the sanctuary city problem, we've got major
cities--Los Angeles, Chicago--refusing to honor Federal
detainers on people who are in the country unlawfully, just
saying we don't apparently have any desire whatsoever to
support the government in having an effective immigration
system, and in fact we're going to sabotage it. Do you think
that--would you support legislation that would clarify ICE
detainers and make them mandatory?
Secretary Johnson. I don't believe that a Federal
requirement that the local sheriff or police chief respond
affirmatively to a detainer from the Federal Government is the
appropriate way to go. I do agree with the spirit of your
question, and that is why we have undertaken a very aggressive
effort to work with Los Angeles, Chicago, Philadelphia, New
York, San Francisco where I was last week, the State of
California where I was last week, on this exact issue because
one of the reasons I think that we are having difficulty
getting at the criminals is because of a lot of jurisdictions
who are putting barriers on their ability to cooperate with us.
I would agree with that.
Senator Sessions. I agree. I think it's an unbelievable
affront to law. It's an actual assertion that they are going to
sabotage law enforcement in their cities, and not only do they
have a different view about immigration, they're going to
sabotage the enforcement of plain law.
Your ICE director, a former prosecutor, Sarah Saldana, when
asked about the same question I asked you, if they shouldn't be
made mandatory on these cities, and she replied, thank you,
amen, yes. I understand after that she was apparently counseled
and she issued a retraction of that. Was that your discussion
with her? Did you direct that she should back off that
position?
Secretary Johnson. No, I wouldn't characterize it that way.
She did issue a written statement the next day correcting her
statement, which I believe accurately and honestly reflects her
own views. I do know Ms. Saldana well enough to know that I'm
not going to be able to get her to say something she doesn't
believe.
Senator Sessions. She works for you.
Secretary Johnson. Yes.
Senator Sessions. Agents are saying what and doing what you
tell them to do, even if it's in violation of the law.
What about this problem of countries that won't accept
repatriation or return of people who came illegally? Senator
Specter had legislation on that. His basic view was, which I
think you have the power to do now but would be mandatory, was
if a country does not take back people who entered into the
United States unlawfully, that they don't get to have any more
admissions. That'll send them a message and that'll end it. We
have been dealing with China, I think is our number-one
problem, the biggest problem.
Secretary Johnson. That was my exact conversation with the
Chinese 3 weeks ago.
Senator Sessions. I know that, and I know you perhaps made
a little progress. The Memorandum of Understanding, even with
China, seems to do little to actually fix this problem. It
essentially only provides two individuals from the Chinese
government to assist with repatriation efforts that involve
tens of thousands of Chinese nationals.
Congress has provided a mechanism already in law, Section
243(d) of the Immigration and Nationality Act, that permits you
to notify the Secretary of State of China or other countries--
and there are others--and in turn requires that the Secretary
of State of the United States to stop granting visas to
citizens and nationals of such countries.
Have you made any notification to any country that you
intend to execute such a plan if they don't accept back the
individuals who are to be deported?
Secretary Johnson. I do believe that we and the State
Department need to get with these countries and point out to
them that they're slow in taking back the people we need to
repatriate to them, and we have undertaken a campaign to do
exactly that. I don't necessarily believe that we ought to
suspend immigration travel from any of these countries because
of this particular issue. I think that that is probably not the
best way to go. I have had----
Senator Sessions. Why won't they take them back, Mr.
Secretary?
Secretary Johnson. Senator, I have had some very blunt
conversations with my Chinese counterparts about this exact
issue in Beijing when I was there 3 weeks ago, for example.
Senator Sessions. Forgive me if I don't think you're going
to have a big progress with China. I hope I'm wrong. It's
happening and it's been going on for a decade or more, and
people sitting in your chair have failed to execute and use the
powers they have.
All you have to do is tell China, if you want further
immigration to America you're going to have to take back these
individuals because it costs us a lot of money either to keep
them in detention, keep them taken care of, their medical
needs, or we released them on bail and they disappear into the
country and nobody's able to find them or deport them. It's
just an unacceptable thing. It's just a part of international
immigration policy that if an individual from a country comes
to the United States unlawfully, they should be able to be
deported.
With regard to the 287G program, it trains local law
enforcement to determine whether an individual they come up
against, maybe within the prison system is what Alabama did, to
find out if they're here unlawfully, to do it in a legal and
constitutional way, to be cooperative with the Federal
Government. It was a good program. It was expanded and
executed.
ICE touted it as a big success, but they're removed this
language from their website. Since January 2006, the 287G
program is credited with identifying more than 304,000
potentially removable aliens, mostly at local jails. ICE has
trained and certified more than 1,300 State and local law
officers to help enforce immigration law.
Last October, an ICE spokesman said this, that the 287G
program expand ICE's ability to initiate immigration
enforcement actions against criminal aliens and those who fall
within the ICE, civil immigration enforcement priorities.
As such, the program acts as a force multiplier for the
agency, it enhances public safety in participating
jurisdictions by identifying potentially dangerous criminal
aliens and ensuring they are removed from the United States and
not released back into their communities.
By the way, there was just a news report from Madison
County, Huntsville area, Prosecutor Bresard. An illegal alien
had been convicted of murdering a police officer. He was on the
ground, helpless, pleading for his life and he murdered him. He
committed suicide in prison. I just would say we've got to be--
if we really want to reduce those kind of incidents from
happening then we've got to use the tools that we have.
This administration, nevertheless, has systematically
dismantled the 287G program, canceling agreements for law
enforcement and slashing funding for the program, largely
because the amnesty advocates oppose it. They don't like it.
We have far too much action on behalf of this President and
the Secretary of Homeland Security responding to advocates for
illegal immigration than serving the lawful interests of the
people of the United States. It just is. Today, only 35
programs are existing. That's less than half of what it was. It
should have been expanded.
Tell me, do you believe it's a good program? Should it be
expanded or do you want to continue to see it wither on the
vine?
Secretary Johnson. I believe the 280C--287G program is a
good program in many respects. The biggest problem we have,
Senator, in terms of our ability to work with local law
enforcement in removing criminal immigrants was the Secure
Communities program. Two hundred thirty-nine jurisdictions--I
think I got that number right--were refusing to work with us or
were imposing limitations on the ability to work with us.
That's a big problem.
We ended the Secure Communities program and we replaced it
with a new program that I believe resolves the political and
legal controversy and it takes two to dance, so I'm now out
there, meeting with a lot of sheriffs, a lot of police chiefs,
a lot of Governors, and a lot of mayors to introduce them to
the new programs so that they will work with us again on
immigration enforcement.
Senator Sessions. I just talked to some sheriffs and
they're very willing to help. They're very critical of Homeland
Security and the Federal Government for not protecting their
communities. Even though some cities may refuse, others no
doubt would be willing to participate, and sheriff's
departments would.
Mr. Secretary, just the whole tenor of this, if anybody
understands what's happening, indicates that you're not
demonstrating a will to see the law be enforced.
Secretary Johnson. I disagree.
Senator Sessions. If you will do that effectively and if
you'll send a clear message and utilize the tools that you have
instead of undermining the tools that you have, I believe we
could have a dramatic improvement in the amount of the number
of people who attempt to enter unlawfully.
We could reduce dramatically visa overstays at very little
cost. Once the message gets out that you're not going to be
able to come to the United States unlawfully, fewer and fewer
people will attempt to come. I want----
Secretary Johnson. That's in fact what's happening, sir.
Senator Sessions. You are having a reduction, it appears,
at the border. We don't know how much. This agent says that for
every one apprehended, more than that gets by, particularly the
drug smugglers. So be it. We're going to have another surge,
according to your own agents, this summer from Central America,
it appears.
I would like to see--I don't think I'm being unfair about
this. I've watched this for a long time and I don't think I'm
being unfair. This President has been focused on reducing the
activities and the lawful jurisdiction of your agents. Their
morale is in the tank. They are not happy with what's going on
and the American people shouldn't either.
I think we should be stronger on Secure Communities. I
believe, Mr. Secretary, you are right, that's a good program. I
don't understand. It's almost, to me, like they don't
understand it or just refuse to participate in it.
To take a fingerprint from somebody who's in the country
unlawfully and send it to Homeland Security, maybe you would
identify someone who has a particularly violent history or
maybe you'll identify where they are in the future, if they're
arrested again at the border you'd have information and that
data. We do it for normal criminals. I support you on that. I
think you should not have backed down on it. I think it's a
very reasonable thing.
I'll let you wrap up in any way you would like, and the
record will remain open for 1 week for additional questions.
Secretary Johnson. Thank you, Senator. I do want to say
something in conclusion. I have discovered that as the leader
of an organization of 225,000 people, one of the ways to ensure
that we continue low morale is to continue to say publicly to
my workforce, you have low morale.
The other week there was a subcommittee on the House side
that wanted to have another hearing on low morale within DHS,
and they called one of my people as a witness and they got a
visit from me. I said, please stop telling my workforce you
have low morale. I don't believe that.
I think that there are a lot of good people in DHS that are
very dedicated to their mission at the airports, at the ports,
at the border. I've seen it myself. They work overtime for
public safety, for border security, for aviation security.
I visited with a woman in New Orleans who was almost killed
by a deranged man, who was shot in the arm and came to work the
next day. That's the level of her dedication in our Department.
We are on an aggressive campaign to improve the experience
of people in my workforce, more transparency in hiring,
promotions, mentoring experiences. I am thanking people for
their work. We brought back our Secretary's Awards ceremony.
Those who keep telling my workforce that you have low
morale are not helping, frankly, and I want to improve things
within the Department. I want to make it a better, more
efficient, effective place. I know you share that view,
Senator. I'm on an aggressive campaign to improve how our
workforce thinks about their very, very important mission, and
I'm hoping I get the support of Congress in that.
Senator Sessions. I don't think it's----
Secretary Johnson. One of the things we're doing, for
example, is pay reform for immigration enforcement personnel.
That's something I need Congress's help on, because one of the
things I hear from them is we're capped at GS-9, we need a pay
raise. I want to get them a pay raise. We've reformed pay for
overtime for our Border Patrol agents, and we want to do more
of that. So I'm looking for the support of Congress on that.
Senator Sessions. Look, it was before your time. I raised
the question with Secretary Napolitano over a series of years.
I asked her, for example, had she even met with Chris Crane,
the head of the Immigration/Customs Enforcement Officers
Association. She'd never met with him. I asked her every time
she came before the Committee and she refused to meet with him.
Their problem has not been pay, although I'm sure they'd like
to have more pay.
Their fundamental problem has been they're not being
supported. If they actually enforce the law and do what the law
says, they are told by their supervisors not to do so. You've
got this officer under oath before a committee recently in the
Senate saying that they're told not to report groups of 20 or
more people. That's the kind of--I've been hearing for years,
before you came.
I suggest that you need to be listening to the agents and
get on their side and try to help them fulfill their legal
obligation and your obligation. Instead, we're being led by a
President who is unlawfully giving amnesty to people who
entered the country by the millions, entered it illegally.
That's where we are. Thank you for your testimony.
Secretary Johnson. Senator, I met with----
Senator Sessions. I'll let you reply again.
Secretary Johnson. I've met with Chris Crane, but more
importantly I've met with hundreds of people that he represents
who are on the border, who work for me. I consider that to be a
fundamental part of my job as the leader of this organization.
Senator Sessions. I indicated to you when you came it was
going to be a difficult job. I believe what I shared with you
was, you're not going to be allowed to do what you're supposed
to do if you take this job. This President does not want to see
the immigration laws enforced. That's what's happened. The
officers know it. Everybody that studies it realizes that
you're not moving aggressively to help them end the illegal
immigration, and as a result we've got this difficult problem
out there.
You're a good man. You've got good abilities. I do believe
you care about your officers and you are right, we have a lot
of fine, talented people. There's just a level of frustration
out there that I hope you'll spend some time listening to and
see if you can't respond to.
Thank you very much.
Secretary Johnson. Thank you, sir.
Senator Sessions. Take care. We'll dismiss.
[Whereupon, at 12:55 p.m. the hearing was concluded.]
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