[Senate Hearing 114-875]
[From the U.S. Government Publishing Office]
S. Hrg. 114-875
OVERSIGHT OF THE ADMINISTRATION'S
CRIMINAL ALIEN REMOVAL POLICIES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
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DECEMBER 2, 2015
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Serial No. J-114-43
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
52-543 WASHINGTON : 2025
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, Republican 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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OPENING STATEMENTS
Page
Grassley, Hon. Charles E......................................... 1
Sessions, Hon. Jeff.............................................. 2
WITNESSES
Rosenblum, Marc R................................................ 35
Prepared statement........................................... 48
Responses to written questions............................... 93
Saldana, Sarah R................................................. 4
Prepared statement........................................... 64
Responses to written questions............................... 97
Thompson, Jonathan F............................................. 33
Prepared statement........................................... 73
Vaughan, Jessica M............................................... 31
Prepared statement........................................... 82
APPENDIX
Items submitted for the record:.................................. 493
OVERSIGHT OF THE ADMINISTRATION'S
CRIMINAL ALIEN REMOVAL POLICIES
----------
WEDNESDAY, DECEMBER 2, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:31 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley [presiding], Sessions, Cornyn,
Cruz, Flake, Durbin, Klobuchar, Franken, and Blumenthal.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. I welcome the witness to come to the
table, and I will introduce you in just a moment. I usually
wait for a Ranking Member, but I was told I could go ahead at
this point.
Several years ago--by the way, I have a very short
statement and a longer one I am going to put in the record, and
I am going to have a shorter statement because I want Senator
Sessions to have a longer time to speak.
Several years ago, the Obama administration promised,
quote, ``We are focusing our limited resources and people on
violent offenders and people convicted of crimes--not just
families,'' end of quote.
But although there has been more funding for enforcement in
2015, the President's promise goes unfulfilled and many
criminals remain in our communities.
When will enough be enough? Even those with violent
criminal histories aren't being removed, as promised, to the
extent they should be, and American citizens are paying the
price while law enforcement officers are instructed to look the
other way.
The administration says it does not have the resources to
enforce the law against all undocumented criminals, but a lack
of resources doesn't seem to be the problem. It is a lack of
will, and the policies of this administration prove that.
When first preparing for this hearing, several
administration officials informed this Committee that they were
unable to testify because the hearing wasn't, quote, ``in
response to a particular crisis,'' end quote.
Congressional oversight is not contingent upon any crisis.
It's the constitutional responsibility of all of us. And when
you listen to the testimony today, I hope you'll keep in mind
that there are 179,027 undocumented criminals with final orders
of removal at large in the United States today, thousands of
victims, and many of the agencies' own officers who are unable
to do the job they signed up to do. Do we still think then that
there is no crisis?
[The prepared statement of Chairman Grassley appears as a
submission for the record.]
Chairman Grassley. I reserve the remainder of my time, as I
said, and call on Senator Sessions. And if somebody comes from
the minority, we'll do them before we introduce our witness.
OPENING STATEMENT OF HON. JEFF SESSIONS,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Senator Grassley, for your
strong leadership of this Committee and for your commitment to
oversight and ensuring that our agencies who work for the
American people respond appropriately to America's
congressional representatives.
You framed the questions well. While we all know that the
Obama administration is removing fewer total aliens than it did
a few years ago, the focus of today will be on the dramatic
fall in the removal of criminal aliens from the interior of the
United States, an alarming development and something that runs
contrary to the direct claims of this administration.
Countless times over the last 5 Fiscal Years, members of
the administration have made public statements about the need
to focus limited enforcement resources on criminal aliens
first. It admits normal enforcement of routine removal cases
has fallen significantly, but it asserts our policies to remove
criminal aliens is strengthened.
On May 10, 2011, the President said, quote, ``We are
focusing our limited resources on--people on violent offenders
and on people convicted of crimes, not just folks who are
looking to scrape together an income.''
Just a little over a year ago, November 20th, the President
announced, he said, quote, ``We are going to keep focusing
enforcement--keep focusing enforcement resources on actual
threats to our security felons not families, criminals not
children.''
Thus, the contention is that they had to stop normal
enforcement and create executive amnesty programs such as
Deferred Action for Parents of Americans and Lawful Permanent
Residents, DAPA, for lack of resources. ``Since we cannot
possibly remove everyone,'' the administration has said, ``and
Congress rejects my proposals for reform, I will do it anyway
by Executive order and allow, for example, four million DAPA
beneficiaries to stay in the United States and give them work
permits, Social Security numbers, access to Federal and State
benefits, and focus only on removing criminals and other high-
priority aliens.''
As we will establish today, not only are total removals
down, but the number of removals of criminal aliens from the
interior of the United States, the so-called priority, has
decreased significantly. The reason for this decrease is not
because there are fewer criminal aliens in the United States
today they--than there were just a few years ago. There are
hundreds of thousands of known criminal aliens in the United
States.
In addition, new crimes are committed every day by criminal
aliens, so while we are not seeing a decrease in crimes
committed across this country, we are seeing a decrease in
removals of criminal aliens, and it is not that the
administration has fewer resources than they did in years past.
To the contrary, the amount of funding available for the
detention and removal of aliens has increased steadily while
criminal deportations have plummeted.
The administration does substantially less with
substantially more. Under the law passed by Congress, any
person found unlawfully in the United States is subject to
removal. Anyone unlawfully in the United States is subject to
removal. They do not have to commit a crime. And those who
enter unlawfully and then commit crimes are surely a higher
priority for removal.
There's never a reason to allow a dangerous criminal to
enter, live, or remain in the United States. No parent should
ever have to bury a child because their Government failed to
keep violent criminals out of the country or failed to deport
them once it discovered them.
Protecting the lives of innocent Americans is one of the
most basic duties of the Federal Government. Our goal should be
to keep 100 percent of criminal aliens out of the United States
and then to promptly remove all such criminal aliens from the
interior of the United States if identified.
There is nothing wrong or controversial about such a
policy. Indeed, the President and his team say this is what
they are vigorously doing. But is it true?
In late July, the Senate Judiciary Committee heard
testimony from grieving family members who lost loved ones to
criminal alien violence. The whole Nation watched, really, Mrs.
Susan Oliver, Mr. Michael Ronnebeck, Mr. Jim Steinle--Kate's
father--Mr. Brian McCann, and Laura Wilkerson. More
importantly, we heard their moving calls for action. Their
stories represent a very small sample of tragic events that
happen every single day in the country.
So, this failure cannot continue. The American people have
pleaded with Congress and its Presidents to create a uniform,
fair, and lawful system of immigration that serves their
interests, protects their security, a policy in which the
United--which this Nation can take pride. But the politicians
and officials for decades have promised to do that to get
elected but have failed to do so. Even the obvious need for the
removal of criminal aliens, which the administration deems is
needed and just, is just not happening.
So, once again, I would like to thank the witness. She is
an experienced prosecutor. Senator Cornyn thinks you are a very
good prosecutor. So, we are glad to have you here, and----
Director Saldana. That is because I----
[Laughter.]
Senator Sessions. You will have to work hard to dig up
something on him. Thank you, Mr. Chairman.
Chairman Grassley. Before I introduce you, I would like to
swear you in. Do you affirm that the testimony you are about to
give before this Committee will be the truth, the whole truth,
and nothing but the truth, so help you God?
Director Saldana. I do.
[Witness is sworn in.]
Chairman Grassley. Thank you.
I would like to give a short introduction, but for
everybody that would like to have a full biography, I would
invite you to go to our Committee website that has such a
biography of Director Saldana.
Sarah Saldana is the Director of U.S. Immigration and
Customs Enforcement, commonly referred to as ``ICE.'' Director
Saldana was nominated by President Obama and confirmed by the
Senate in December last year. Previously, she served as the
U.S. Attorney for the Northern District of Texas and, as you
just heard, served very well there, and served also as
Assistant U.S. Attorney for the Northern District of Texas and
worked in private practice. I am ready for your opening
statement.
STATEMENT OF THE HONORABLE SARAH R. SALDANA,
DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, WASHINGTON, DC
Director Saldana. Thank you, sir. Before I begin that, I
just wanted to thank you personally. I had all my senior
leadership from across the country, 26 offices across the
country, field office directors, senior attorneys, our special
agents in charge of our Homeland Security Investigations unit
in last week to Maryland--actually, the week before last, I
think--and you were asked by our folks to provide a video in
support of our overall mission and our efforts. And they got a
great kick out of it. I just wanted to thank you for taking the
time to do that.
Chairman Grassley. Thank you.
Director Saldana. Thank you, Chairman Grassley--if I may
proceed now?
Chairman Grassley. Yes.
Director Saldana [continuing]. Ranking Member Leahy, I
believe may be here later, and distinguished Members of the
Committee. I appreciate the opportunity to testify today.
As the Secretary and I have both stated and as the
Senator--Senator Sessions has mentioned, it is the
administration's objective and my objective personally to focus
on a smart and effective enforcement of our immigration laws.
This--this was very similar to my focus as a United States
attorney and an assistant United States attorney before that
where I had to make difficult decisions over 10 years on which
cases we could prosecute, which areas we would prosecute them
in. I had 100 counties, 100,000 square miles to cover, and over
2,000 Federal laws to enforce. So, we could not take each and
every case, and we are approaching our mission similarly at
ICE.
I will tell you I took this job last year, over Senator
Cornyn's admonitions, because I wanted to lead this
extraordinary group of women and men at Immigration and Customs
Enforcement who have a very significant law enforcement
mission, which is what I wanted to continue doing, which I
began as a United States attorney. And I had the small hope, I
think I shared with you, Senator Cornyn, that I could bring
even a somewhat rational voice to a set of issues that are just
chock full of highly charged, often misapprehended by so many
people in the country, and yet of such great importance to the
country.
Bottom line, those individuals who pose a threat to public
safety or who are apprehended crossing the border recently,
illegally, are our enforcement priorities. These priorities
were set forth by the Secretary a little bit more than a year
ago, and they guide our enforcement efforts, everything we do,
cradle to grave, at Immigration and Customs Enforcement. I know
most of you all are familiar with our priorities. Priority one
focuses on border security, national security, public safety.
Priority two includes those people who have committed
significant and repeated misdemeanors, and those who are
apprehended unlawfully in the country after January 1, 2014.
That was--to intended to stop the flow. And priority three
focuses on those individuals who have been issued a final order
of removal after that same date.
So, with these priorities as our guide, we are gaining
ground in our efforts to remove dangerous criminal aliens from
the interior of the country.
Despite overall apprehensions on the border declining, as
you pointed out, Senator Sessions, and perhaps not
surprisingly, our removal numbers are lower than they have been
in recent years, but we are removing at a greater proportion of
dangerous criminals in our overall removals, thereby achieving
the President's objective of trying to get the most dangerous
criminals out from our midst.
In 2015, 98 percent--I'm really proud of these numbers--98
percent of all removals aligned to one of the three enforcement
priorities. Of the roughly 235,000 removals we had in 2015, 59
percent, almost \2/3\, were convicted criminals, reflecting a
3-point increase over 2014. That's proportionately. I know the
numbers are, as you say, Senator Sessions, but that is
proportionately. When we drill down even further and look at
interior removals only, those not apprehended at or near the
border, that figure relative to the total jumps to 91 percent
are criminals.
With respect to all aspects of our interior enforcement,
including the transfer of undocumented immigrants from State or
local custody, we focus on convicted criminals and individuals
who threaten public safety and are working with approximately
3,000 State and local law enforcement agencies to take custody
of dangerous individuals and convicted criminals, including
felons, significant repeat misdemeanors, criminal gang
participants, before they are released into the community.
Of course, this Committee very well knows that there are
also times when, despite our best efforts--and I will assure
you there's no one sitting on their laurels at Immigration and
Customs Enforcement, including the Director. We are very
actively continuing to pursue criminal aliens, but they do,
despite our best efforts, get released from our custody. We
cannot remove any undocumented immigrant--and this is really
important. Really important. I want this Committee certainly
but the American public equally important to understand that
ICE doesn't willy nilly release people. We have to have a final
order of removal from the immigration court and appropriate
travel documents to the country of origin of that particular
foreign national.
In addition, let us not forget the Zadvydas decision, which
limited our ability to remove and detain removable aliens. It
restricts the amount of time an individual can be held in post-
order custody, 6 months typically, and then thereafter, unless
there is a showing that removability is likely. Whether it is a
result of protracted appeals or refusal of a country to accept
its nationals back, this decision accounts for somewhere
between 30,000 and 40,000 convicted criminal alien released in
recent years. That number has dropped significantly over time,
and this remains a key objective, to keep that number going
down.
I mentioned one aspect of our interior enforcement,
including the transfer of undocumented immigrants from State
and local custody. We use our Priority Enforcement Program, or
PEP, to expand our access to these dangerous criminals.
You know, the United States Government ironically faces
daily criticism for not being flexible in its enforcement or
going about its administration. PEP is an example where we are
flexible. We are not a one-size-fits-all solution but, rather,
an approach that works with State and local governments,
something that was very important to me, Senator Cornyn, when I
was in Dallas working with 100 counties and 100 sheriffs, that
we have a good relationship with State and local law
enforcement, and that we tailor our program to community safety
needs and to develop process to fit the needs of that specific
jurisdiction, ensuring that we remove as many convicted
criminals as we can without damaging trust with local
communities. This trust is critical so communities feel secure
reporting crimes, thereby making everyone safer. We are going
to continue working with these jurisdictions. I do have some
good numbers with respect to in the first 6 months of PEP, the
number of jurisdictions who have previously not cooperated with
us who are doing so now. It's over 50 percent at this point.
And each day our objective is to conduct our interior
enforcement strategy in a way that supports community policing.
I think it is an encouraging sign that, for example,
counties like Los Angeles, which--which the deputy and I
personally work very hard to speak to their local elected
officials and try to get them back to the table have done so.
Riverside, Alameda, San Diego, Fresno, San Mateo, Sonoma, and
Monterey in California, a State that, with Texas, has so many
undocumented immigrants, PEP is allowing ICE to reestablish
these crucial local relationships that are so important.
Again, thank you for the opportunity to testify. You have
my commitment to work with each Member of your Committee to
forge a strong and productive relationship currently and in the
future. I appreciate it.
[The prepared statement of Director Saldana appears as a
submission for the record.]
Chairman Grassley. Before I ask questions, I want to
announce that after I ask my questions, Senator Sessions is
going to take over. And then I was told I could go ahead
without a Ranking Member being here, but if any of you have the
responsibility of speaking as a Ranking Member, I would be glad
to defer to you before I ask questions.
Okay. On June the 29th of this year, the Department
requested a reprogramming of $113 million from your agency for
immigration enforcement to the DHS--and, by the way, that's
what this question is about, but I have an introduction before
I ask you this specific question.
Yet less than a month later, you testified before this
Committee about how ICE employees must every day exercise
prosecutorial discretion and focus the agency's limited
resources--and the words ``limited resources'' were yours--in
order to ensure the deportation of removals of--I am sorry,
just a minute here.
Well, anyway, we have the removals of criminal aliens for
FY 2015 were down 22 percent from FY 2014 and down 38 percent
from FY 2012. And then removals of criminal aliens from the
interior of the country as opposed to the border for FY 2015
were down 27 percent from 2014 and down 53 percent from 2012.
And yet you willingly gave away $100 million despite your
repeated complaints about how you're doing the best you can
with limited resources.
So, my question is: How do you justify this reprogramming?
And how many additional criminal aliens could have been taken
off the American streets without $113 million that you don't
now have in your budget?
Senator Durbin. Microphone.
Chairman Grassley. Yes.
Director Saldana. I am sorry. Thank you. I think the number
you stated is out of our $6-plus billion budget. We can always
use resources. I am not familiar specifically with--I think
these are dollars that went to the Department, stayed within
our Department, and its overall border security and public
safety mission. But as you know, our bed numbers, which have
been typically holding at 34,000, 35,000 in prior years, were
down this past year. And as a result, we had some excess
dollars.
And, mind you, it's not--our effort at--I appreciate every
dollar we get. Our effort with respect to our mission overall
is removal. It is not detention or holding people
unnecessarily. We make these decisions on filling the beds. We
made our decisions throughout the year as judiciously as
possible, and we still ended up with some excess money. And the
Department has an overall public safety mission and border
security mission that could have used that, and I trust did
wisely.
Chairman Grassley. Going back to your testimony before this
Committee in July, you said that your agency ``welcomes''--
quote, ``welcomes any 287(g) partners,'' end quote. You then
conceded that there had indeed been a decrease in 287(g)
participation, but you said, quote,``It's not because of U.S.
Immigration and Customs Enforcement not wanting that
partnership. It is because jurisdictions have either withdrawn
or are not coming to the table anymore,'' end of quote.
And yet in response to a question for the record on this
subject, the Department revealed that there are ten
jurisdictions in seven States with applications that have been
pending for years. One has been pending since 2008, seven have
been pending since 2010 or 2011, and two have been pending
since 2012.
How can you say then that the decrease in 287(g) program
participation is, quote, ``because jurisdictions have either
withdrawn or are not coming to the table anymore,'' end of
quote, when there are ten jurisdictions whose applications have
been pending for years?
Director Saldana. You know, Senator, that the Secretary--
the third time is the charm. I will do it next time.
You know, Senator, that the Secretary looked from the first
day that he came on board, has been looking at every aspect of
our immigration enforcement efforts, and 287(g) is one of them.
We had this whole upheaval with respect to Secure Communities,
lots of litigation, got bogged down in things, and we needed to
move forward. That is why we came up with PEP--PEP with respect
to those jurisdictions that were not coming back to the table.
But we are currently considering whether or not it makes sense
at this point, now that we have six months under our belt of
PEP, to expand 287(g), and the Secretary and I will be
discussing that further.
Chairman Grassley. Okay. Well, then, when would you plan to
adjudicate along the lines of what you just said you are
looking at? Then that will be my last question.
Director Saldana. We are actually in the midst of it right
now.
Chairman Grassley. Okay. I think the Senator from Minnesota
was here before you were. The Senator from Minnesota, and then
I am going to turn it over to Senator Sessions.
Senator Franken. Thank you, Mr. Chairman.
Director Saldana, welcome, and thank you for coming today.
Before I turn to my questions, I would like to draw your
attention to two letters that I sent to ICE and to DHS, one
joined by 18 of my colleagues on the question of whether ICE is
interfering with the ability of mothers and children held in
family detention centers to access legal representation. Many
of us have argued that the administration should end the
presumptive detention of these families, the vast majority of
whom are fleeing conflict and violence in their own countries
and are seeking asylum here. But in the meantime, it is
absolutely necessary that ICE and its contractors not hinder
the ability of families to access pro bono counsel.
I have yet to receive a response to these letters. Will you
commit to me today that you will take a look into this matter
and provide me with the requested information?
Director Saldana. Of course. And may I share with you a
couple of points in that regard right now?
Senator Franken. Sure.
Director Saldana. And, mind you, sir, we have like 500
congressional inquiries any given year. That's not an excuse,
but I apologize for any delay in it. We are actually improving
in our turnaround time, and we are going to keep working at
that.
You are familiar, I am sure, with the California district
court decision, Judge Gee's decision in the Flores case, which
has significantly impacted our dealing with processing
undocumented immigrants, particularly family units, children
and unaccompanied children. We are appealing that decision, but
in the interim, the judge gave us until October 23d to come
into compliance with its principal elements and it overall, and
we have done so.
What has impacted us most is we are now from the time a
person is booked in to the time we--with respect to family
units, the judge has imposed more or less a 20-day requirement
as long as we are dealing expeditiously--we might have to take
longer than that, but we are actually meeting that. We
essentially have turned the family detention as a result of
that decision--once again, we are appealing it because we
believe it has impacted our flexibility that we need in
enforcing our immigration laws. But we are complying with that
decision, and it essentially has turned us from detention with
respect to family units into essentially processing folks,
getting the biometric data, getting them physical examinations,
medical examinations, getting them off in an orderly manner,
and that turnaround is about 20 days. It had averaged before
this decision about 60 days, although there were some that were
much longer than that.
Before that, I had issued a directive in May of several
things I wanted done with--this was my fifth month on the job,
and I directed our field office directors and everybody out
there and assured the American public that we were doing some
things to take a close look at family detention. Again, Judge
Gee's order has impacted that to some degree, but I was asking
for more reviews of why people were staying in custody beyond
90 days and periodic reviews thereafter. That is not happening
anymore under Judge Gee's decision.
I set up a family advocacy advisory group, a member of
which is here with us today, Mr. Rosenblum, and it is a star-
studded list of people in the area of detention and family
units and social services and enforcement, a cross-section of
those. I keep getting complimented on the category, the caliber
of the people represented there who are going to be helping us
in an advisory capacity as we move along family detention
issues top to bottom, including legal access.
I'm a lawyer. As a prosecutor, I much preferred having a
lawyer on the other side than having a pro bono representation
because we could get along and move the case forward. I
believe----
Senator Franken. Pro bono representation are lawyers.
Director Saldana. No, that is what I am saying. So, I
prefer to have a lawyer, even in this context. Our lawyers
prefer to have lawyers on the other side, and I want to ensure
legal access to our folks. And we have done some things
already, including additional space, making sure everybody
understands the rules of the road, and working in constant
communication with our working groups, so we have an advocacy
working group, including the ACLU and ALA, who are talking to
us about what they need more with respect to legal access.
So, yes, I look forward to pulling your letter and making
sure we get you a more timely response, but I at least wanted
to make those points to you.
Senator Franken. Okay. Well, thank you. My time has
expired. But I appreciate your getting--reading those and
getting back to me on them. Okay. Thank you very much. Thank
you, new Mr. Chairman.
Senator Sessions [presiding]. All right. Thank you.
Senator Cornyn, I yield to you, our Whip, and then we will
yield to Senator Durbin next. If you need to go, you have got a
short period of time.
Senator Cornyn. Thank you, Mr. Chairman.
Assistant Secretary Saldana, thanks for being here, and you
know of my regard for you and for your professionalism and the
way you have discharged your responsibilities as United States
attorney. You are right, I did warn you before you took this
job that not only was it very difficult because of the
complexity involved, but you would be instructed by your
superiors on the basis of politics what laws to enforce and
which laws not to enforce. And so, I have some sympathy with
your challenge, but no sympathy for the administration's
failure to enforce the law.
Sanctuary cities, which we have talked about quite a bit,
where all we are asking for local law enforcement to do is to
share information and to honor Federal detainers and the like,
an effort to reform that--that situation in light of the Kate
Steinle case out in San Francisco was blocked by our friends
across the aisle, something that, I think, was a big--big
mistake to do.
You alluded to the detention policies with regard
particularly to the unaccompanied minors or those who are with
a single adult, and I know you are constrained by some of the
litigation that's gone on. But the fact is, as I have discussed
with Secretary Johnson and you, that if there is no consequence
associated with entering the United States illegally and you
will be simply processed, as you said you are doing now, and
then released, then there is no deterrence, and people will not
return for their court-ordered removal hearing.
So, as, I think, a number of us have tried to communicate,
both to you and Secretary Johnson and to the President himself,
this failure to--this perception that the President is not
dedicated to enforcing the laws that Congress has passed, as
perhaps most egregiously evidenced by the executive action, has
undermined public confidence in the Federal Government's
ability to enforce or willingness to enforce our immigration
laws on the book. And what it has done is to undermine our
ability to actually fix what I think you and I both would agree
is broken in our immigration laws, because public confidence
has dissipated.
But I just want to give you--give you, ask you one question
about unaccompanied minors. We are starting to see another
uptick from Central America, and we realize the circumstances
under which those children and their families are fleeing. And
I previously commented that I think that it's hard to imagine
how bad things must be before a mother or a father would put a
minor child in the hands of transnational criminal
organizations and be smuggled from Central America up on the
back of the beast through Mexico and into the United States,
many of whom would be assaulted, robbed, killed, or injured,
perhaps fatally.
But, I think, one of the things that concerns me the most
about the current situation is there is no comprehensive
background check for the sponsors for these unaccompanied
minors. And we found out as a result of whistleblowers coming
forward that some of these children are being put not only in
the custody of non-citizens, but people with criminal records,
some of which are evidence involvement in trafficking and other
crimes, and potentially subjecting these children to
exploitation or worse.
And, I know--I think, I know you as a person of strong
conscience and very professional, as I said earlier, but
doesn't that bother you that the U.S. Government would be
placing children in the hands of people with criminal records
and people who have not been adequately screened and who may,
in fact, be continuing the exploitation of these children that
are, we know, supported by some of these transnational criminal
organizations that are engaged in illegal smuggling and human
trafficking?
Director Saldana. Of course, Senator. Of course it bothers
me. I have learned, as you--I have read, as you have learned,
about those allegations that are being made. I just--I do
remind you--if you are soliciting my opinion, I have given it
to you. But I do remind you that ICE has--is not in the
children placement business. We turn over any children that are
apprehended by CBP or ourselves to----
Senator Cornyn. Health and Human Services.
Director Saldana [continuing]. Health and Human Services.
They are the ones who place the children and who have the
policies with respect to that.
I am going to look further into this just because I am at
least interested as an American citizen and ask questions about
that and see if there is anything we could do to help. But it
is more--these questions and what can be done about it are more
appropriately, I think, directed toward the Department of
Health and Human Services.
Senator Cornyn. Well, you happen to be the witness today,
so I was asking you. I understand Health and Human Services'
role in all this, but I don't think it is very satisfactory to
the American people to have Federal officials, whether they be
politicians or whether they be appointed officials, say,
``That's not my job, and I am not going--I'm not responsible.''
So, I do appreciate your willingness to look into this
further, and I hope we can have more of a conversation about
this and how do we get to the bottom of this. But to me, it
demonstrates, just like the sanctuary cities situation, where
many of the criminals who are not removed as a result of
sanctuary cities' policies, in fact, prey on and exploit the
very minority communities that we say we are trying to protect.
And here these children are being exploited and preyed upon
perhaps by human traffickers and others who would exploit them
as a result of policies that we view, perhaps some people view
as beneficent or helpful to them, in fact, trapping them in an
unspeakable situation. So, I look forward to our continued
conversation.
Director Saldana. Thank you.
Senator Sessions. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. And thank you very
much for your testimony.
On June 27, 2013, on the floor of the United States Senate,
we passed a comprehensive immigration reform bill with 68
votes, a bipartisan bill. Senator Flake and I sat for months
working on the details of that bill. I thank him for that. And
I thank him for our effort to pass this bill.
Many of the people who are critical of this administration
today voted against that bill, voted against comprehensive
immigration reform. One of the requirements under our bill was
for those who are undocumented in the United States who wish to
continue to reside here and work here come forward and face a
criminal background check. Would that help us root out the
criminals who are among the undocumented population so they
could be deported? You need to turn on your microphone again.
Director Saldana. It makes eminent sense, Senator. As I
said, as a United States attorney, I enforced 3,000 laws. Here
is the compendium of laws that currently comprise the
Immigration and Naturalization Act that bound us to our
processes that we engage in. It is extraordinary even for a
lawyer with 30 years of experience that I am, that I have, and
so I would hope that, despite public communications that I have
heard, that we still go forth and forward with immigration
reform because this is--hearing a bit here and a bit there is
just not going to get us there.
Senator Durbin. And, clearly, with an estimated 11 million
undocumented, comprehensive immigration reform required them to
come forward and face a criminal background check in order to
continue to reside in this country and to work this in country.
And I hear your testimony that that would have been a real step
forward in making America safer. It was opposed by many of
those who are questioning you today on this panel. It also
would have made a dramatic new investment in border security
between the United States and Mexico. Some of us thought it was
excessive. We voted for it in order to get a bipartisan
majority. We are spending roughly now $3.6 billion a year on
border security. The immigration reform bill that was opposed
by several Members of this panel would have increased that to
$46 billion from $3.6. It would have increased the number of
Border Patrol agents from the current 20,000 to 38,000 Border
Patrol agents. We wouldn't have had to build Mr. Trump's wall.
We were basically going to achieve with that bill verification
of the background of people in the United States, criminal
background, and we would have had a much stronger border
security, and yet many of those who are criticizing you today
voted against that, which is very difficult to understand.
Let me ask you this question, if I can. There's going to be
testimony from a witness in the next panel suggesting that the
number of people being deported by your agency has gone down,
though the evidence of crime has gone up. How do you respond to
that?
Director Saldana. As I said in my opening, that is true.
About two-thirds of our people in our national docket, sir,
come from CBP apprehensions, those at the border and ports of
entry, about two-thirds of them. They are down significantly.
Senator Durbin. Wait a minute. Let me stop you. Why are
they down significantly?
Director Saldana. Well, I would--you know, I guess beauty
is in the eye of the beholder, but I would say it's because of
effective enforcement and the fact that we have sent a message
that you should not cross the border.
Senator Durbin. Fewer people are trying to cross the
border. Is that what you are saying?
Director Saldana. Yes, if the number of apprehensions,
which I believe is a rational argument, it represents--is
proportionate to the number that are trying to come across, are
reflective of the number that are trying to come across then,
yes, they are down. And so, I trust that our message has gotten
across.
Senator Durbin. So, two-thirds of those deported are
apprehended at or near the border, and you're saying fewer are
coming across the border, so there are fewer being deported.
Director Saldana. Yes. I think the CBP number is down
dramatically.
Senator Durbin. I have a minute left, and I will just say
that when Secretary Johnson asked for my vote for the
Department of Homeland Security, I said to him, ``Not unless
you promise that you will come to Broadview, Illinois, on any
Friday morning.'' He did. He brought his son with him. I wanted
him to meet with those who were about to be deported, and their
families. And I will tell you, among them are some people who
should have been deported, with no question. But among them as
well were families being broken up because the mother was
undocumented and the rest of the household were American
citizens. When you have young people who were apprehended and
deported with no criminal record whatsoever, that to me was a
waste of our resources.
Tell me where your focus is in terms of ICE deportation
when it comes to distinguishing between criminals and children,
between felons and families.
Director Saldana. The Secretary's priorities announcement
November 20th of last year make very clear what and reflect
what the President has talked about, and that is, not breaking
up families.
What is more effective for immigration enforcement--the
removal of a mother and two children who are causing no harm to
a community or a convicted child molester? That is where we are
focused, and that is what we are continuing to do. And I am
pleased with the numbers. Even though overall removals are
down, again, the reasons for it, I believe--but I'm pleased
with the numbers, the percentages of apprehensions and removals
of criminals.
Senator Durbin. Thank you.
Senator Sessions. Thank you.
Well, to rehash the bill, I would just note that the
association--the head of the ICE Officers Association, Chris
Crane, and the USCIS, Customs and Immigration Service Council
of Law Officers, said this about that bill, ``This is an anti-
public safety bill and an anti-law enforcement bill. We urge
all lawmakers to oppose final cloture and vote today to oppose
the bill.'' They issued that statement on the day it came up
for a vote.
They went on to say, quote, ``ICE officers and USCIS
adjudications officers have pleaded with the lawmakers not to
adopt this bill but to work with us on real, effective reforms
for the American people. That's who we represent--the American
people.''
They go on to say, ``The Schumer-Rubio-Corker-Hoeven
proposal will make Americans less safe, will assure more
illegal immigration, especially visa overstays,'' and so forth.
It goes on further.
I just would say that this was not a solution. We hear the
talking points about the comprehensive bill, but when you read
the details, these officers were correct. And I would note that
as a result of the denial of the ICE officers' rights and
duties to enforce the law effectively, they sued your
predecessor, Mr. Morton, in Federal court for denying them the
right to conduct lawful activities. And they have also been
reported they have the lowest morale of any agency in the
Federal Government. Now, with----
Director Saldana. I think, sir, that they have lost that at
the Fifth Circuit, I know for sure, and I don't think it has
gotten much----
Senator Sessions. Well, it is a very unusual lawsuit--I
have never heard one--where law officers sue their supervisors
for claiming they block them from doing their duty. It just
shows how badly the situation is and how little enforcement.
With regard to the budget, you made reference to turning
back $113 million that you did not spend under the FY 2015
budget. Do you know how much ICE received for detention,
removal, and transportation of aliens?
Director Saldana. I can't give you the number off the top
of my head. It is 34,000 beds.
Senator Sessions. Well, it is $3,431,000,000, according to
the numbers I have. I would just note that it is my
understanding that the $113 million came from that specific
account, which was for detention, removal, and transportation
of aliens.
According to the information we have obtained, in 2011 your
agency, ICE, removed 150,000 criminal aliens from the interior.
In 12--in FY `12, it dropped to 135,000. In FY `13, it dropped
to 110,000; in FY `14, to 86,000; in FY `15, this year, we
believe the number is only around 63,000. Do you agree with
that, those numbers?
Director Saldana. Of criminal removals, they sound about
right.
Senator Sessions. Well, that is a dramatic reduction by far
more than half. So, you are actually removing half of--less
than half as many criminal aliens as you were in just 2011.
[Poster is displayed.]
Director Saldana. And as I----
Senator Sessions. You are turning back money that you were
given for that very purpose.
Director Saldana. Well, sir, a big portion of that is
detention, which doesn't necessarily get us to removal every
time. But as I said earlier, I am heartened--I would like my
hand on every criminal alien who is in the country illegally
and to be able to remove him. This is what I have done as a
prosecutor, and this is what I did as a United States attorney.
Neither I, nor the women and men who work for ICE would let go
of a criminal alien if they had a basis for a final order
removal and the ability to remove them. So----
Senator Sessions. Well, you know, did you make the decision
about what kind of criminal offenses qualify for removal? Or
was that made before you or above you?
Director Saldana. No, sir. That is in the statute, sir. The
Senate, the Congress----
Senator Sessions. No, it is not in the statute that you are
using discretion to say that there have to be more than two
misdemeanors or a felony before you will basically remove
people. Other people that are here that commit major traffic
offenses and so forth, if they are here illegally, are not
being removed. Isn't that right?
Director Saldana. The removal--the only thing I was saying
with respect to the statute is the group of people that can be
removed are defined there. Yes, the Secretary and myself as now
the Director of ICE are focusing on those in the November 20th
memorandum, those three priorities I mentioned in my opening
statement, which are mostly criminals. And, again, sir, once
again, 59 percent of all of those that were removed were
criminal aliens. That is a record-breaking percentage of the
people that we remove.
Senator Sessions. Well, forgive me if that doesn't make me
feel good, because the numbers are dropping dramatically. So,
you are dropping down on other removals, and you are defining
upward what you consider to be criminal, and you're saying it
makes up a larger percentage of the very much smaller pie.
Isn't that correct?
Director Saldana. Yes, sir, but all I ask you to do is to
give the American public some perspective here. We're talking
about apprehensions being down substantially. I would like to
think--and I believe truly--that that is a reflection of
effective enforcement, that people trying to cross the border
are going down. So, if the numbers are going down, it also
reflects the numbers of apprehensions and the largest part of
our apprehensions are from border and----
Senator Sessions. Well, over a number of years we forced a
good bit more expense and hired a good number of more agents,
and I trust we have seen a reduction of attempts. We've made it
somewhat harder. But the difficulty, as Senator Cornyn said, is
when you accept people other than Mexicans and allow them to be
released in the country pending some sort of deporting
situation, then you are encouraging there. I really worry about
that.
My time is up. I believe it's Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you, Ms. Saldana, for your very difficult work and your hard
work.
I'm a former prosecutor, and I worked with law enforcement
for eight years in that job, and obviously we had cases where
we worked with Federal authorities on deportation. And could
you talk about the Priority Enforcement Program in terms of the
coordination with law enforcement? What do you think the
strengths are? What do you think could be changed to make it
better?
Director Saldana. Well, it is--and let me make sure we
understand. We work with about 3,000 jurisdictions across the
Nation. We have identified somewhere in the neighborhood of
300-plus who had at the beginning of this Priority Enforcement
Program not been cooperating with Immigration and Customs
Enforcement in connection with apprehensions of individuals
from----
Senator Klobuchar. Different jurisdictions around the
country.
Director Saldana. Yes, undocumented immigrants there.
So, we have set out, everyone, top to bottom, the Secretary
has assured and charged us with the mission to set out to work
with those State and local non-cooperating jurisdictions, and
as I said earlier, we've made tremendous progress. We have
about--56 percent of those jurisdictions have now come back to
the table. That represents about 76 percent, I think, of all
our previously declined detainers. That is tremendous progress
in that six months.
Senator Klobuchar. Over what--in six months.
Director Saldana. Yes. We are going to keep going at that.
We are going to keep going at that. Even with those
jurisdictions that have not come forward, we are going to
continue working toward that objective. But as I said earlier,
it is essential to our mission, not only our immigration
mission but let us not forget I have Homeland Security
Investigations as well, HSI, on the investigative effort, 6,000
agents there. They need the help of State and local government.
We need good, sound relationships. We do not need to be at
loggerheads with one another. So, that is what we are working
toward.
Senator Klobuchar. I always used to say that victims of
crime or their family did not care who handled their case,
whether it was local or State or Federal. They just wanted us
to get the job done. And I think the worst thing is when people
are fighting with each other over whose jurisdiction it is. So,
I appreciate that.
Senator Durbin touched on this, but I just keep harkening
back to the comprehensive reform and the money we had in there,
as he pointed out, for more--much more law enforcement at the
border and their help with adjudicating cases and other things.
That was a major piece of the bill in addition to having an
orderly process for a very, very lengthy path to citizenship as
well as making it more straightforward for legal immigrants. We
have a huge--in our State, as Senator Franken knows, we'll have
a case where someone will come in legally to work at a dairy,
and then they bring their--want to bring their spouse in. They
are allowed to, but then their spouse cannot work for 7 years
in a town where the unemployment rate is one percent.
So, could you go through on the immigration side in terms
of your jurisdiction just how--more particularly than when
Senator Durbin asked the question, just how this would help you
to do your job if we were to pass a comprehensive bill?
Director Saldana. Well, I have mentioned some of the
obstacles that we have to our enforcement. We cannot have
removals of the people we are focused on without a final order
of removal. We have got courts that are--that have very few
judges compared to a two-million-plus docket, national docket.
There are two-million-plus undocumented immigrants on that
docket and very few courts to handle it.
We have a current state of laws that is just very difficult
to work with and truly takes an expert to navigate, never mind
persons who lack the sophistication.
So, it is just essential to have all these jurisdictions
working with us, and as I said--and I think, by the way,
Senator, I should apologize. I think I reversed the percentages
on----
Senator Klobuchar. Yes, I saw there was action behind you.
They did not want to----
Director Saldana. Yes, they are very angry with me back
there because----
Senator Klobuchar. There was just a flurry of action and--
--
Director Saldana. It was----
Senator Klobuchar. Okay. So, what is the correct percentage
so we can make them happy and get it on the record and not be
subject to a Washington Post fact checker?
Director Saldana. Of those 300-plus jurisdictions, about 76
percent, in terms of raw numbers of jurisdictions, have come to
the table, and that----
Senator Klobuchar. Have come to the table to work with you
on these priorities and getting people----
Director Saldana. Well, it translates into raw--into
numbers of 56 percent of those previously declined are now
being honored.
Senator Klobuchar. Right.
Director Saldana. In some form or fashion.
Senator Klobuchar. And it is 76 percent of----
Director Saldana. Of the jurisdictions.
Senator Klobuchar [continuing]. The jurisdictions--got it.
Is that correct? Yes? Okay, good. There is a lot of head
nodding. Thank you very much.
Director Saldana. Thank you, Senator.
Senator Franken. Very at odds with what you said earlier. I
am joking.
Senator Klobuchar. Yes, he is kidding. All right. Thank you
very much. Thank you, Mr. Chairman.
Senator Sessions. Thank you. Senator Flake.
Senator Flake. Thanks. Ms. Saldana, in a hearing earlier
this year, in July, I believe, you testified that the Law
Enforcement Notification System, or LENS, had been deployed in
11 States. You expressed confidence that it could be deployed
in all States by the end of the year. Where do we stand now?
Director Saldana. Senator Flake, thank you so much for
asking me that question. We're at 100 percent. We got every--we
have got all 50 jurisdictions on board, and we are
communicating with those States on a daily basis.
Senator Flake. How is that going? How have they received
it?
Director Saldana. Well, of course, they would like us to--
the local sheriffs would like us to communicate directly with
them. But this is really the process--by going through a
central data base with the State government, we rely on them to
then notify the local jurisdictions, like counties and cities.
Senator Flake. Right. As you know, we had the case in
Arizona of Mr. Soloman--Mr. Altamirano where he was released
and then murdered somebody soon after his release. He posted a
$10,000 bond after his immigration hearing, which means that he
became obligated to report to ICE upon demand. At that time his
most recent criminal offense hadn't triggered his obligation to
report that demand. It was a problem there. He was released
from ICE custody on January 7, 2013. He was arrested for a
murder that took place on January 22nd of this year. During
that time he received two injunctions against him, but there
was no communication apparently between the agencies here.
On May 28th of this year, in response to a letter that I,
along with Chairman Grassley, wrote, you stated, ``There's no
systematic process for State and local authorities to notify
ICE with an injunction or an order of protection that is
served.'' If ICE had been aware of those two civil injunctions
against Altamirano, would ICE have taken any action?
Director Saldana. Every decision we make, sir, is based on
all the facts and circumstances. Those are material facts, and
if we had known that, it might have altered the decision. I
can't tell you, looking back now, whether it would have or not.
That would be speculation. But it's certainly something we
would have very much taken into account.
Senator Flake. Under the LENS program, is there a way that
you obtain this information if somebody has injunctions against
them?
Director Saldana. It doesn't go the other way. LENS just
goes from Federal to--with respect to our released, to State
and locals.
Senator Flake. All right. So, we have no way right now
unless there is an effort at the local level to inform you?
Director Saldana. Well, also, I have asked all our people--
and I will tell you that was part of the disturbing facts that
got my attention on this matter. But I have asked all our field
office directors, I got them all on the video telephone
conference, and I said, ``Let us look at every flag, every
possibility.'' In this case, we did not know about those
injunctions, but, ``I want you to run down where you have a
question,'' because I think the offense there that he was
convicted of was facilitation of a burglary, which is a wobbler
offense and could have been reduced to a misdemeanor.
So, we said--I have told them any flag that you see, take
the time to run it down and let's get all the information we
can. We are continuing to work with local jurisdictions to try
to do better.
Senator Flake. So, there is nothing preventing you from
putting such a notification system in place where the
information goes the other way? Could that be required of ICE?
Or would you need enabling legislation to require that kind
of----
Director Saldana. To require State and locals to report to
us? We have criminal data bases. What we don't have is these
orders necessarily which are, you know, family matters as
opposed to criminal data.
Senator Flake. All right. In July, you stated you would
follow-up with us. We asked the number of denied DACA requests
that have resulted in deportations. My office has not received
any of these numbers that you said that you would give. Do you
have any of those numbers today?
Director Saldana. I do not, Senator. I--that was July?
Senator Flake. Yes.
Director Saldana. I will have to pull that and get that--
that is probably going to be a manual search. Maybe it has
already begun. I will get you a status on that as soon as I
can.
Senator Flake. Okay. We would appreciate it. If there is a
reason we cannot get these numbers, please let us know. But,
otherwise, we would like to get them.
Director Saldana. Yes, sir.
Senator Flake. So, we have not received those yet.
You mentioned that effective enforcement is the key to
reducing border apprehensions. I think we all recognize that.
One such program that's been very effective in Arizona is
Operation Streamline, particular in the Yuma Sector, the zero
tolerance approach. But we hear that DOJ--ICE is pulling back
on implementation of that program.
How does that square with the recognition that effective
enforcement actually helps in this regard, but when we have
something that has been by all accounts an effective--an
effective deterrent to apprehensions or border crossing, yet we
are pulling back on it?
Director Saldana. Well, Operation Streamline involves a
streamlined prosecution.
Senator Flake. Right.
Director Saldana. And that's obviously the U.S. attorneys
and the Department of Justice who have control over that. You
know, I'm not sure what the Department's formal stance is on
that, but as I understand it, I don't think Operation
Streamline, at least of years past, did not distinguish on the
status of the immigrant or the facts and circumstances related
to that person.
So, if it doesn't meet our priorities, that would probably
not be in our view an effective measure. Again, sir, with the
focus being on criminals and serious prior offenders, dangers
to the community, a reflection of dangers that represent
dangers to public safety, if Operation Streamline in a
particular area--I do not know how it operated in Yuma, but if
it just included any Mom or Pop, I think without distinguishing
further, I think under our current priorities that would not be
included.
Senator Flake. Thank you. Thank you, Mr. Chairman.
Senator Sessions. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. Welcome, Director
Saldana. I know you're familiar with the Jean Jacques case, and
I hope that your able staff has informed you about some of the
questions I have regarding Jean Jacques. As you know, he is
alleged to have murdered a 25-year-old young woman in Norwich,
Connecticut, Casey Chadwick. After his release from prison,
having served 15 years for attempted murder, ICE failed to
deport him as it should have done. I've asked for an
investigation by the Inspector General. I hope that you will
support and cooperate with an investigation.
Director Saldana. Absolutely. I understand Inspector
General Roth has--that you sent that referral to him.
Senator Blumenthal. I have written to Inspector General
Roth, along with two of my colleagues, Senator Murphy and
Congressman Courtney, asking for an IG investigation. To my
knowledge, I have not received a response, but I hope for your
support and cooperation.
Director Saldana. Absolutely. We will do that.
I would just say, just like any of these situations where
you have somebody assaulted or injured--or murdered, worse--it
is tremendously disturbing. I mentioned earlier, Senator, and I
think we briefed you. We have had at least some briefings with
your staff on this particular matter. As disturbing as it is,
this is one of the consequences of that Zadvydas decision,
where we cannot detain someone without end. We--the Zadvydas
decision requires us, even in post-custody--a post-order
situation, to release a person if there is no legitimate basis
for believing somebody will be able to be removed. Without a
travel document to Haiti, this person would not have been able
to be removed.
Your questions have been directed to what efforts did we
make, and we did make some efforts. We did not----
Senator Blumenthal. Well, if I may--if I may just
interrupt, number one, I have been totally dissatisfied with
the briefings that we have received. The information has been
completely inadequate. It has changed over time. And even now I
feel that we have not received the full story, which is why I
asked for the IG investigation.
But, number two, it isn't a question of whether he had to
be released. It's a question of what was done to deport him and
why he is not back in Haiti and Casey Chadwick still alive.
That is the real question here. And I accept your statement
that some efforts were made, but they were abysmally and
abhorrently inadequate, and much more could have been done in
my view. And I believe that the Inspector General investigation
will demonstrate factually that much more should and could have
been done. And I also want to know what broader problems this
particular failing may reflect.
Director Saldana. As I said, sir, we will cooperate with
that investigation. I know it leaves you dissatisfied, the
explanation. I think that your concern is couldn't you have
gone to the country and tried to make some efforts there
locally. We did try to find family members of this person. We
could not locate them.
Senator Blumenthal. He was picked up on a boat coming from
Haiti. Is that correct?
Director Saldana. That may be, sir. I just--I am not sure
how he was apprehended.
Senator Blumenthal. And without meaning to compare the two,
the administration has said that information is gleaned from
various sources about refugees coming into this country, and I
accept that representation that there are means to verify the
origins of a person without necessarily some document in that
person's hands. And that could have been done here.
Director Saldana. And, you know, I won't argue with you on
how much more could have been done. I will tell you that we
have to rely on the country to accept those travel documents
and to put them in a form that they will accept their national
back. That is the frustration we have, is that there are a
whole bunch of countries with which we have been trying to work
to turn them around on this issue, to get us travel documents
for these people. Haiti does not have, apparently, the
interest, the resources to assist us in doing that. And so, we
can't just drop them off without the country being in a
position to accept them, and that is what--I am as frustrated
as you are with some of these countries that we have those
difficulties.
Senator Blumenthal. Well, apart from what Haiti is or is
not willing to do, I maintain--and I think the Inspector
General investigation will affirm--that much more could have
been done by ICE. But if that's a problem, why haven't you come
to the Congress? Why haven't you gone to the State Department?
Haiti receives a lot of aid from this country, and it ought to
be held accountable.
Director Saldana. I have personally been to the State
Department and met with one of our representatives there that
helps us with respect to these recalcitrant countries. We are
making all kinds of efforts. The State Department can be most
helpful in this, and I am hoping that we can turn around some
of these countries.
Senator Blumenthal. Which other countries have failed to
cooperate?
Director Saldana. Oh, there are a bunch of them, sir. I can
certainly provide you the list. China comes to mind.
Senator Blumenthal. Can you give me some examples?
Director Saldana. China comes to mind. India. There are
quite a few. The list is long. You can probably imagine some of
them. Those that have very unstable governments, those that
have cold relationships with us, many of those countries are
not cooperating with us. But I can certainly provide you a
current list.
Senator Blumenthal. I would appreciate a list, and I would
appreciate an answer as to what efforts have been made with
those countries, in the first instance by ICE, and also by any
other agency of our Government, to change those practices that
resist taking back criminals who commit murder in our
communities or other crimes, because they have no business
being here, and they give a bad name to all of the programs
that you administer. They undermine the credibility and
legitimacy of our entire immigration effort.
So, I look forward to the investigation report from the
Inspector General, and I want to thank you for being here and
answering my questions. I know that you are newer to this
agency, and I commend your efforts in Texas as a law enforcer
and your efforts here to improve the performance of ICE. So, I
want to thank you for being here today.
Director Saldana. Thank you, Senator.
Senator Sessions. Thank you, Senator Blumenthal. That was a
very excellent line of questioning.
I remember our former colleague Senator Specter proposed
legislation that dealt with China, and other countries, and
both when he was a Republican and a Democrat, I believe, and
his proposal was that we stop admitting--first, we stop
admitting any government officials other than the Ambassador as
long as they refused to take back people. We could cutoff aid.
We could--it is an essential part of immigration system
worldwide that Nations work together, so it cannot be accepted
that Nations refuse to take back criminals that have left their
country after they have been convicted. That's a part of
basic--and if they refuse to do that, then we have the ability
to push back.
So, I would think I would appreciate it if you would
consider, as Senator Blumenthal suggested, legislation, if
that's needed. And I believe, frankly, that you have plenty of
powers that could move the needle on this anyway. And, finally,
this is a long-term problem, and it's costing us hundreds of
millions of dollars. Would you not agree, Ms. Saldana?
Director Saldana. Yes, sir, and it has been----
Senator Sessions. Hundreds of agents and time and efforts
to go forward with this. So, I think it is something that we
need to fix, and I appreciate you raising it.
Senator Blumenthal. And, Mr. Chairman, if I can just add, I
make these points as a long-time and passionate supporter of
immigration reform, providing a path to earned citizenship for
the 11 million people who now are in the shadows, providing
more H-1B visas as well as eliminating the abuses in that
program; H-2B visas, agricultural workers, I helped to lead the
effort in the sessions previously when we successfully
advocated for long-term immigration reform in the United States
Senate, and there was an overwhelming bipartisan majority in
favor of it, and, unfortunately, it was never voted on in the
House.
But we can disagree even on this panel as to overall
immigration reform, but this kind of glaring gap in enforcement
and protection of our citizens I think deserves immediate
attention. And I continue to be an advocated of comprehensive
immigration reform. Thank you, Mr. Chairman.
Senator Sessions. Thank you. And, Ms. Saldana, is it not
true that this refusal to take people back also raises the
Zadvydas question, puts you in a position where you have to
release people because you can't hold them any longer?
Director Saldana. That is right, and that is the case here.
Senator Sessions. So, it's a big issue. You need--you need
to go to the Cabinet Member, Mr. Johnson, and Mr. Johnson needs
to go to his boss, the President of the United States, and say,
``We can't--this is unacceptable, and we are going to have to
come up with a policy to deal with these countries,'' in my
opinion. That's my suggestion. And let us know if you have
legislation you would like to see proposed.
Director Saldana. I appreciate that.
Senator Sessions. Now, the administration has claimed that
Congress only appropriates enough resources to remove the
approximately 400,000 aliens in the fiscal year--in one fiscal
year. Yet in 2014, ICE removed only 315,000. That includes
interior removals and border protection, Border Patrol
removals, after they are apprehended near the border. In FY
2015, the number of removals was only 235,000, of which only
63,000, as we noted before, were criminal aliens, people who
committed crimes, like in San Francisco with Kate Steinle and
Senator Blumenthal's example. That's a--that's a dramatic drop
from the 150,000 criminals removed in 2011.
So, do you know what your budget for removal and detention
was in 2011? I have the number.
Director Saldana. Back in 2011? No, I do not, sir.
Senator Sessions. $2.6 million--billion.
Director Saldana. Billion.
Senator Sessions. And what about this year? It has gone up
to $3.4 billion, as we noted. So, even though inflation is up
and the budget deficits are high, Congress found a considerable
amount of extra money for you. You didn't spend it all, and you
removed far fewer persons. So, my question to you is not what
happened at the border, not what is happening there, but our
focus today is primarily on the removal of criminal aliens, and
there still remains something like 11 million people here
illegally, people enter the country illegally every day, and
illegally--those undocumented aliens here in our country are
committing crimes every day. It seems to me that that is an
unacceptable decline in prosecutors and removals.
Director Saldana. As I said earlier, sir, again, we're
affected by the apprehensions at the border and ports of entry.
That's a substantial number. But we are also affected by
changing demographics, the fact that we have an increase in
these families, there are all kinds of levels of due process
that are afforded them by the statute, by the courts, and that
tend to delay removals, and that's why we are working so hard
on this PEP effort, is to try to make sure that we are reaching
as many jurisdictions as we can. Even though the number is
large right now, we want them all.
Senator Sessions. Well, I thought your answer to Senator
Flake's excellent question about Operation Streamline was not
adequate, and I also believe your answer to Senator Grassley's
questions about 287(g), that has dropped from 71 agreements
with local law enforcement to 31, is very troubling and
unacceptable, and we have to have better cooperation with local
law enforcement, and we need to see what works at the border.
The American people want--they're tired of arguing over means
and problems. They want to see some actions and some positive
results.
Senator Cruz, I yield to you.
Senator Cruz. Thank you, Senator Sessions.
Ms. Saldana, welcome. The last hearing we had that you
testified, we discussed in 2013 how the Obama administration
had released over 104,000 criminal illegal aliens. At that
hearing, you misstated that number by a factor of over two.
And, indeed, in 2013, we discussed how the Obama administration
released 193,000 illegal aliens with homicide convictions, 426
sexual assault convictions, 303 kidnapping convictions, 1,075
aggravated assault convictions, 1,160 stolen vehicle
convictions, 9,187 dangerous drug convictions, 16,070 drunk or
drugged driving convictions, and 303 flight escape convictions.
At that hearing, I asked you how many murderers and rapists
here illegally was the Obama administration releasing, and you
did not know.
Director Saldana. I think you asked for it the day before?
Senator Cruz. Yes.
Director Saldana. Yes. I did not know that specific number
for the day before.
Senator Cruz. So, let me ask you, in the several months
since that last hearing, how many murderers here illegally has
the administration released?
Director Saldana. Well, you missed the part, sir, earlier
when I discussed the fact--when you say the Obama
administration released, and I presume you are talking about
ICE and the agency that enforces the immigration laws. You
missed my testimony earlier where I discussed that two-thirds
of these releases for 2015 were not within the control of ICE.
The immigration courts--we don't play in this sandbox alone.
The immigration courts are a big part of that.
Senator Cruz. Ms. Saldana, I asked a specific question. How
many murderers has the administration released?
Director Saldana. In the last year--let me give it to you
by FY 2015--I believe that are homicide-related--that is not
just murder; that is negligent homicide, et cetera--there are
about 197, I believe.
Senator Cruz. One hundred and ninety-seven in the last
year. How about sexual assaults?
Director Saldana. Sexual assaults, we have a chart broken
down by crimes, sir. I do not have that chart with me, but we
can certainly provide it to you.
Senator Cruz. And does that include drunk driving? Do you
know how many drunk driving----
Director Saldana. Yes, it does.
Senator Cruz. Well, since the hearing last July, the
administration has released information that indicates it's
even worse than what we discussed in July. In particular,
Senator Sessions and I, along with several other Senators on
this Committee, sent a letter to Secretary Johnson asking about
ICE's so-called Priority Enforcement Program. And in response
to that letter, you, on behalf of the Secretary, sent us a
letter on October 26, 2015, a letter that, without objection, I
would like to introduce into the record.
Senator Sessions. It will be made part of the record.
[The information appears as a submission for the record.]
Senator Cruz. In that letter the administration made a
number of rather stunning admissions. That letter indicated
that at the end of FY 2015, there are 918,369 non-detained
illegal aliens who were present in the United States or on
their own recognizance, have been ordered to leave the country
by a final order of removal, but haven't done so. That means
there are essentially almost one million known illegal aliens
who have been ordered to leave that haven't done so and are
living freely here. Why is ICE not deporting those one million
illegal aliens?
Director Saldana. You also missed, Senator, that part of my
answer before when I talked about this issue. We have a number
of obstacles in our way to remove people. We cannot remove
people without a final order of removal and----
Senator Cruz. All of those had final orders of removal.
Director Saldana. May I finish?
Senator Cruz. I am just pointing out that the first
obstacle you listed is not relevant to the 918,369 that have
final orders of removal.
Director Saldana. May I finish?
Senator Cruz. Please do.
Director Saldana. A final order of removal and appropriate
travel documents. I just do not believe, sir--you are from the
great State of Texas where we understand the real world, and I
can't believe you would think that either, I myself, who have
spent 10 years, even before I came here, as a United States
attorney and assistant United States attorney in Texas running
down every criminal I could and putting them in prison for as
long as I could based on the justification of the crime, that
you would think that the women and men of ICE or myself would
turn their backs on the deportation of a criminal alien who
needed to be removed. We are removing every one we can under
the law. This law provides for a lot of due process and a lot
of avenues for requesting relief. Every decision we make can be
looked at by an immigration judge and reversed or enhanced or
decreased. It is not just--there are so----
Senator Cruz. Ms. Saldana, with respect, what you are
saying there consists of non-sequiturs. Your first response was
you needed a final order of deportation, which we have over
900,000 who have already received that. And I will tell you, I
speak over and over again to ICE agents, to Border Patrol
officers, who are demoralized, who are dispirited by the
political leadership of the Obama administration that doesn't
let them do their jobs. Over and over again, in the State of
Texas, I speak to brave men and women that are risking their
lives to keep us safe.
Let's look further. You said we should not impugn the
willingness to enforce the law, the roughly one million illegal
aliens that have orders of deportation that you have not
deported, but that is not just that. Beyond that, of the 36,007
criminal illegal aliens that ICE freed from custody in FY 2013,
1,000 of them have gone on to commit new crimes. So, these are
criminal illegal aliens, released from custody that have
committed new crimes. Of those 1,000, how many of those have
been deported?
Director Saldana. I don't have that number readily at hand.
I can run that down for you, sir, and get it to you.
Senator Cruz. Between FY 2009 and FY 2015, the Obama
administration released 6,151 criminal aliens who were
specifically convicted of a sexual offense. Why is ICE
releasing any illegal aliens who have been convicted of a
sexual offense?
Director Saldana. Sir, you missed that part of my testimony
earlier. Before your arrival here, I explained clearly that
about two-thirds of the folks who have been released--you keep
referring to the Obama administration releasing them. That is
really a mischaracterization and is misleading to the public.
About two-thirds of those were either under the Zadvydas United
States Supreme Court decision, which we cannot--we follow the
law and the Supreme Court, and----
Senator Cruz. Excuse me a second. You said you followed the
law. Help me understand then why President Obama has issued
executive amnesty refusing to follow the law. Which one is it?
Does the administration follow the law, or if the President
disagrees with the law, does he say he will ignore it?
Director Saldana. You and I have a disagreement with
respect to that constitutionality. You know----
Senator Cruz. But I----
Director Saldana. You know that the Department of Justice
has issued a--an opinion with respect to that. And I will tell
you this, sir: I--you also missed my testimony that there is--
there is a complex act here that does not leave us a whole lot
of room for--I mean, every--probably every illegal alien could
be removed, but that is 12 million people, or 15 million,
depending on what estimate you look at. I don't think anybody
who thinks that we can go about rounding up people with a $6.5
billion budget, as generous as that is and as grateful as I am
for it, believes that we can go and do that under that budget.
There are reasons to make wise and smart and effective
immigration priorities, which the Secretary announced last
November 20th. We're going about it in a smart way. We are not
sacrificing children when we can remove a criminal alien.
Any criminal alien that has not been removed, I feel fairly
confident there is a very good explanation that comes under
this very statute that the Senate and the House has left us
with. I have called for and will continue until I leave--the
day I leave this office, to ask, beg you all to consider
comprehensive immigration reform, not just finish----
Senator Cruz. Ms. Saldana, Ms. Saldana----
Director Saldana [continuing]. One aspect or the other----
Senator Cruz. I recognize that politically the
administration supports amnesty for people who are here
illegally. The American people don't agree with the
administration on that. You are charged with following the law,
the law that Congress has actually passed, not the policy views
of President Obama that contradicts the law.
Now, you mentioned a minute ago that ICE could deport the
12 million people here illegally. Why is it not doing so? Why
is it not enforcing the law?
Director Saldana. I haven't run the numbers, sir, but I
believe the Congressional Budget Office has, and we're talking
about billions and billions of dollars to do that. That is
not----
Senator Cruz. Ms. Saldana----
Director Saldana [continuing]. Practical and that is, quite
frankly, not very smart.
Senator Cruz. Okay. It is not smart to enforce Federal law
that requires those here illegally to be deported. Ms. Saldana,
let me ask you, when Bill Clinton----
Director Saldana. You are playing games with words, Senator
Cruz, and I am trying to help the American public and this
Committee----
Senator Cruz. By ignoring the law?
Director Saldana [continuing]. Understand my job----
Senator Cruz. You are not helping the American public by
ignoring the law, and----
Director Saldana. I cannot----
Senator Cruz. Let me ask you a question, Ms. Saldana. You
said it is not very smart and it is impractical to enforce the
law. How many aliens----
Director Saldana. That is not what I said.
Senator Cruz. How many aliens did the Bill Clinton
administration deport?
Director Saldana. I don't know, sir. I didn't work with
that administration.
Senator Cruz. Well, let me answer the question for you. In
eight years, the Bill Clinton administration deported
12,290,905. Now, is it the position of the Obama administration
that the Bill Clinton administration was not very smart because
it deported 12 million people?
Director Saldana. Is it the position of the--are you
serious about this question?
Senator Cruz. You just said it is not very smart to use
ICE's resources to follow Federal law and deport criminal
aliens who are here illegally?
Director Saldana. You are misrepresenting my testimony.
Senator Cruz. Well, then, you tell me what you said was not
very smart.
Director Saldana. What I said was we cannot--just as a
United States attorney I could not enforce 3,000 laws,
including Migratory Fowl Act, with 100 attorneys covering
100,000 square miles. You know North Texas and my
jurisdictions, and 100 counties. I had to make tough decisions.
Did I want every person who had broken one of those 3,000
Federal laws to be punished accordingly? Yes, I did. But I----
Senator Cruz. Ms. Saldana----
Director Saldana. But I have to make----
Senator Cruz [continuing]. If the Clinton administration
could enforce the laws and deport over 12 million people with a
smaller budget than your budget, why is the Obama
administration unable or unwilling to enforce the law and do
the same?
Director Saldana. I beg to differ with you, sir, but this
administration is enforcing the law, and it is enforcing in a
very smart way with respect to the resources that we have.
Senator Cruz. And, Ms. Saldana, if this administration is
enforcing the law, what should President Obama say to Kate
Steinle's parents? What should President Obama say to Kate
Steinle's father, who held his daughter in his arms and heard
her last words, ``Help me, Daddy?''
Director Saldana. I don't know what the Obama
administration would do, but I met with Jim and Brad Steinle. I
met with them and was extraordinarily impressed by them. They
expressed their views and feelings to me. I listened. I admired
their stamina and their ability, in their moments of mourning
and grief, to be able to articulate to me what a beautiful
person she was and how they would like to see some changes,
which is exactly how I opened this testimony. I would like to
see changes to the entire immigration system code, which is--
supports a system that is broken and that just is not
effective. And yet we don't seem to be getting that agreement
from Congress.
Senator Cruz. And, Ms. Saldana, when you met with the
Steinle family, did you apologize to them on behalf of the
President for his supporting policies that have created
sanctuary cities across this country that led directly to the
murder of their daughter?
Director Saldana. I disagree with you that that's a
statement of fact, and I did not express that.
Senator Cruz. So, you did not apologize.
Director Saldana. I did express my condolences for their
loss.
Senator Cruz. But condolences are one thing. Apologizing
for the direct consequences of the failures of the Obama
administration policies are another. I'm curious. After meeting
with Kate Steinle's family, do you now support Kate's law, the
legislation I introduced to prevent another young women like
Kate Steinle from being murdered from an aggravated felon
reentering this country over and over and over again and being
welcomed into a sanctuary city like San Francisco?
Director Saldana. I support a whole restructuring of this
statute, sir. That's what I support. I do not believe that
piecemeal efforts here and there, Band-aids placed on this
massive problem, is going to do it without comprehensive
immigration reform.
Senator Cruz. So, Ms. Saldana----
Director Saldana. I would like to see you support that.
Senator Cruz. Ms. Saldana, I want to understand your
testimony correctly. Are you saying, no, you do not support
Kate's law?
Director Saldana. I have--you also missed my testimony as
to why I cannot support an effort to--I believe that is the one
that increases the----
Senator Cruz. It is a mandatory minimum of five years----
Director Saldana. Right.
Senator Cruz [continuing]. For an aggravated felon who
illegally reenters this country, just like the murderer who
murdered Kate Steinle.
Director Saldana. The last time I checked, there was very
close to a majority of illegal aliens in our current prisons,
and I think you are very much aware of the state of our current
prisons and the fact that they are busting at the seams. I do
not believe----
Senator Cruz. So, your position is there is not room----
Director Saldana. I do not believe----
Senator Cruz [continuing]. In prison for aggravated felons
and murderers?
Director Saldana. I do not believe that increasing the
minimum penalty is going to be the most effective thing. The
most effective thing to do with our immigration laws is to
reform the entire code.
Senator Cruz. So, I want to make sure that I understand the
answer to your question. Your answer, if I understand it
correctly, is no, you do not support Kate's law. Is that
correct?
Director Saldana. I do not support just putting a Band-aid
on the issue. I think we ought to have the backbone----
Senator Cruz. Ms. Saldana, you are a very experienced
lawyer. You know how not to answer a question. I am asking a
very simple yes or no. Do you support Kate's law?
Director Saldana. I have already answered, sir.
Senator Cruz. Is your answer no?
Director Saldana. I have already answered, sir.
Senator Cruz. You--all right. All right. You want to play
games, that--that's fine. I will say an administration that
refuses to follow the law, that releases murderers, rapists,
violent criminals, that has roughly one million illegal aliens
subject to orders of deportation, and yet you say you can't
enforce the law, there is a reason the American people are so
frustrated with law enforcement officials that are charged with
protecting them who refuse to do their duty. And I will say on
behalf of thousands of ICE officers and agents and on behalf of
thousands of Border Patrol agents, who are frustrated out of
their minds at a political administration that will not let
them enforce the laws, the American people are ready for
leaders that take seriously the obligation to protect this
country.
Senator Sessions. Ms. Saldana----
Senator Franken. Mr. Chairman.
Senator Sessions. Yes.
Senator Franken. I came at the beginning of----
Senator Sessions. Yes, you did.
Senator Franken. And I had my 5 minutes, and I just feel
that, you know, we just had 13-minute question and answer that
I think that in some ways was a kind of a little bit of a
display, and I was wondering if I could have some time to do
some other questioning.
Senator Sessions. Absolutely. As a matter of fact, you
indicated you did not desire to ask any questions, but you----
Senator Franken. No. I did.
Senator Sessions. That is all right. Good.
Senator Franken. I did.
Senator Sessions. I recognize the Senator----
Senator Franken. My time was up. When my time was up, I
yielded because my time was up.
Senator Sessions. But I would just say I thought it was a
very, very effective elucidation of facts, and if the witness
had answered directly, it would not have gone on so long. So, I
recognize Senator Franken.
Senator Franken. I guess I would just ask--the event in San
Francisco was a tragedy, and we have a system that, if we read
all this testimony, there are--there are limited resources. I
will check on this 12 million statistic from the Clinton
administration. I'm not sure--I don't know where the Senator
got that. He is leaving now because he has had his time here.
But it doesn't seem like that is an accurate statistic. And so,
that's why I was saying it was a bit of a display. Can we get
some kind of where that statistic came from--I mean, I know he,
Senator Cruz, knows where he pulled that statistic from, but is
there anybody on your staff here--but the point is that we are
going to hear testimony after this in the second panel about
the use of resources and about the challenges that you have.
We were talking about when we did the sentencing about, you
know, retroactive sentence reduction, Senator Cruz did the same
kind of thing where he said that, you know, one of these people
is going to be released and murder somebody, and you will have
blood on your hands. And it's a tactic that basically says that
in this country that we have, where 300 awful tragedies happen,
and choices are made with the resources we have, and sanctuary
cities are sanctuary cities for a reason, because they believe
that when people--that when people in the community feel like
they can say--they can go to the police and say something
without fear of them themselves being deported, that it makes
the community safer.
So, you know, you might ask--just as well ask Senator Cruz,
Do you--do you apologize to someone who is in a city that is
not a sanctuary city, where people don't feel safe to come
forward, and, therefore, criminals are running on the street
and they murder somebody? There're real choices that are made
here, and it just seems really an unfair tactic to take an
event that was incredibly tragic and take it so out of context.
So, we're going to have other witnesses--I do not want to
ask you to speak to what we just saw unless you would like to.
Director Saldana. Well, I would. As I said, I spent 10
years in law enforcement before I arrived at this agency, and I
don't know which persons he has spoken to, but everywhere I
have been--and I have been to quite a few cities. We have got
26, essentially, communities out there with areas of
responsibility that cover the entire country. And I see people
who are at their desks hard at work and who appreciate being
able to go after the worst of the worst under the current
priorities and who don't complain about what they can't do and
are very pleased for what they can do.
I am--I am here to do a job, and I am very disappointed--
not that it matters--that we are here, rather than trying to
make my agency better, more effective--I want to work with
anyone on either side of the aisle who has ideas to help us to
do so. But that was not helpful, and that's what I am here to
do. I would invite Senator Session, Senator Cornyn, anybody,
and Senator Flake I know has already spent many hours on this,
but if we have got something constructive to suggest, I am here
all ears.
Senator Franken. Thank you.
Senator Sessions. Well, we do have something to suggest.
Let's just forget all the other actions of the administration
not to enforce the law that has demoralized the ICE officers
that you lead. There is no doubt about that. They sued Mr.
Morton because they said his policies were blocking them from
doing their duty. I have never heard of anything such as that.
So, when we have the situation of Kate Steinle, that shouldn't
have happened. And this administration should have been on San
Francisco or found out if they committed any errors in that
happening, just like Senator Blumenthal's example. When a
person comes and commits an attempted murder and serves 15
years in jail, has no roots in this country, you ought to be
sure he is deported. The law gives you that authority. And that
is your responsibility. Ms. Saldana, you just can't sit here in
this office and pretend that you do not control events. You are
going to have to assert yourself, and you are going to have to
make sure these countries take back these people. You are going
to have to make sure your officers are on top of these cities
that aren't cooperating. And I'm not sure in Senator
Blumenthal's case where there was any problem with the locals
cooperating or not. And you have to be sure why didn't somebody
pick this up and deport this person. That's all I am saying to
you.
We see this. We've seen that criminal deportations have
dropped 58 percent over a few years while all others have been
dropping, too. But you said this is our priority. They dropped
roughly 90,000, more than half, while your budget has gone up.
So, people aren't happy about this. We want some productivity.
Let me ask you this, one final question. This, I think,
gets to the heart of some of the issues we have here and the
frustrations that we have here. The President has issued two
Executive amnesties, in 2012 and 2014. Under both of these
programs, illegal immigrants, people who are undocumented, in
the country improperly, can obtain work permits, photo IDs, and
Social Security numbers. So, let's say we have an open job for
a forklift operator in Alabama, and it pays $15 an hour. Two
applicants apply. The first is an American citizen; the second
applicant entered the country illegally and has received a
Presidential ID and work permit. Who has more right to that
job--the American citizen or the person who entered the country
unlawfully?
Director Saldana. Well, once a person is given lawful
status, sir, I leave it to the employer to decide who has the
more right to that job based on their qualifications.
Senator Sessions. And so, the President then declares that
those people have the same right, and do you support that?
Director Saldana. I support the employer having the right
to make a decision between people who are lawfully in the
country, whether a citizen or by other lawful means, to be able
to make the decision on who to select and get that job.
Senator Sessions. And are you aware that the Immigration
and Nationality Act, INA, says that people who are unlawfully
here are not able to work in America?
Director Saldana. I am familiar with that provision, sir,
in general.
Senator Sessions. So, the President just declares, despite
the law, you have the same right to work. Will he be sued? If
the employer says, ``I want to hire the citizen, I do not want
to hire a foreign person that came to the country illegally,
despite what the President says,'' does he have that right?
Director Saldana. Sir, we are mixing apples and oranges.
You are assuming that there is no lawful status--lawful status.
I think you have already referred, or the Senator referred to
it, Senator Cruz, as ``amnesty.'' We have a fundamental
disagreement with respect to that, and I don't know that it
serves any purpose----
Senator Sessions. So, you support the President's power to
declare people without lawful work status lawful, even though
the court has so far ruled otherwise.
Director Saldana. The lower court, the district court?
Senator Sessions. Yes.
Director Saldana. Yes, and I think you understand, sir,
because you certainly have familiarity with this. There are
avenues of appeal, and we are appealing that decision. I
support the President and I support the Department of Justice
opinion, lengthy and thorough and complete, that said that what
he did was lawful and what the Secretary did last November 20th
was lawful and constitutional.
Senator Sessions. Well, the judge in a very long opinion
did not agree to that, and we do need to go into the next
panel. Thank you for your patience.
Director Saldana. Thank you, sir.
Senator Sessions. But I just would say the reason this is
important is because this is a national issue of importance to
the American people. You are at the center of this. You are
getting directions from above, I know that, but we expect the
highest performance out of your office and your supervisors.
Director Saldana. And, quite frankly, sir, I am working
every day very long hours to do that.
Senator Sessions. Thank you very much.
[Pause.]
[Witnesses are sworn in.]
Senator Sessions. First we have Jessica Vaughan, director
of Policy Studies for the Center for--Center for Immigration
Studies, where she has worked since 1992. Prior to joining the
center, she served as a Foreign Service Officer with the State
Department. Next, Ms. Vaughan, do you want to do your opening
statement now? Thank you for your contribution to these
discussions.
STATEMENT OF JESSICA M. VAUGHAN,
DIRECTOR OF POLICY STUDIES, CENTER
FOR IMMIGRATION STUDIES, WASHINGTON, DC
Ms. Vaughan. Good afternoon, and thank you for the
opportunity to testify. This is certainly an area that is ripe
for congressional oversight because the Obama administration is
truly causing harm with its relentless efforts to undermine
immigration enforcement, with the result that literally
hundreds of thousands of criminal aliens remain here in
defiance of the law and in a position to harm others.
I just today want to summarize some of the latest official
statistics on immigration enforcement and criminal alien
removals and then discuss some of the reasons for these trends
and also what this means for public safety in our communities.
To put it bluntly, right now immigration enforcement is in
a state of collapse. Total deportations from the interior--and
that is factoring out the CBP apprehensions--have drastically
declined and now are about one-third of what they were just 3
years ago, from about----
Senator Sessions. You say CBP. That is the Border Patrol at
the border.
Ms. Vaughan. Yes, and also----
Senator Sessions. You take those out.
Ms. Vaughan. And the legal ports of entry also. They catch
people sometimes coming in as impostors and so on. So, that is
down from about 200,000 in 2012 to about 72,000 in 2015.
Criminal deportations, which, as you noted, are supposed to
be the highest priority and have been the near exclusive
enforcement focus of the Obama administration, have also
dropped by about half since 2012. Last year, ICE managed to
deport just over 63,000 criminal aliens from the interior out
of an estimated criminal alien population of more than 2
million. Arrests of gang members--and we are talking about
illegal aliens involved in gangs like MS-13, 18th Street, the
Surenos--again, something that is supposed to be a top
priority, these arrests have dropped by more than half, from
4,600 in 2012 to 1,600 in 2014.
What is the reason for this decline? It's not for lack of
funds, as we have discussed. Congress has been responsive to
the public support for enforcement and provided a reasonable
amount of funding, especially for programs to remove criminal
aliens. It is not because there are fewer criminal aliens to
arrest. The size of the illegal immigrant population has not
declined and actually seems to be increasing. ICE has estimated
that there are about two million criminal aliens living in the
country today. It's not because criminal aliens are hard to
find. This decline has occurred at a time when ICE has more
resources and better systems to identify criminal aliens than
ever before, including the universal interoperability with the
national fingerprint sharing system that was known as Secure
Communities. In recent years, agents have been encountering
record numbers of criminal aliens. The decline in criminal
alien deportations can be traced to a series of policies that
have been implemented by the Obama administration with the
specific goal of dismantling a fairly effective system of
immigration enforcement so that only the most egregious
criminals and immigration scofflaws are subject to immigration
enforcement, the so-called worst of the worst. The problem is
that this overprioritization allows a lot of the worst to stay
in our communities and continue causing problems.
Enforcement has been suppressed in several ways. First of
all, the prioritization scheme that restricts ICE officers and
who they can process for deportation and when and allows
exemptions for a long list of things like having family members
here. And the latest iteration of this is the PEP program that
has drawn so much criticism from law enforcement agencies.
Second, they've suppressed the use of important tools like
detainers, the accelerated forms of due process that avoid the
need for long, drawn-out proceedings in the immigration courts,
and partnerships with local law enforcement agencies. The
result of these policies is that ICE officers end up ignoring
perhaps as many as half of the criminal aliens that they
encounter, or more.
For example, one sheriff up in the Northeast gave me a list
of all of the illegal aliens that have been booked into his
jail since the beginning of 2014, and there are 62 of them on
this list. These 62 criminal aliens racked up 225 criminal
charges, anywhere between 1 and 11 charges apiece. About two-
thirds of them were violent. We are not talking about traffic
offenders or, you know, people who fail to appear for some kind
of civil court thing. We are talking about attempted murder,
rape, aggravated assault, and so on. Twenty of them had
committed sex crimes of some kind, and this sheriff sends a
letter to ICE every time an illegal alien is booked into his
jail. And, of course, ICE would get the Secure Communities
alert. But in the last two years, ICE has only issued detainers
on 5 out of these 62 offenders. He says, ``We have to beg the
Federal Government to do its job.'' That is a local sheriff
begging the Federal Government to come take custody of
criminals in his jails who are deportable. This is happening
all over the country.
The administration's narrow prioritization policies have
led ICE to release criminal aliens at an alarming rate. Last
year, just over 30,000 convicted criminal aliens were freed
back to the streets. The cumulative number of released criminal
aliens that were once in ICE custody but who are now at large
is up to 357,000. And, meanwhile, the resources that Congress
has provided for their removal are going unused.
Congress has given ICE the resources to maintain a daily
detention capacity of 34,000, but the administration has let
almost one-fifth of this capacity go unused, even as it
released criminal aliens every day.
The administration has declined to take action against the
sanctuary jurisdictions that have set free more than 10,000
criminal aliens that ICE was seeking to deport last year. It
allows other countries to refuse to take back its criminal
deportees, and now under PEP it is allowing local governments
to dictate when ICE will issue detainers and which types of
criminal aliens will be targeted, creating a patchwork of
hundreds of different deportation policies around the country.
This is deliberate abdication of the Federal Government's
responsibility to enforce immigration laws and one that
subjects American communities to unnecessary harm from
criminals who should not be here to begin with and who could be
removed but are instead allowed to remain and victimize more
people. Thank you.
[The prepared statement of Ms. Vaughan appears as a
submission for the record.]
Senator Sessions. Thank you. Thank you, Ms. Vaughan.
Next we have Mr. Jonathan Thompson, who is executive
director of the National Sheriffs' Association. Our national
chairman. He previously served as Director of External Affairs
for the Department of Homeland Security's Federal Emergency
Management Agency, also previously served as Deputy Assistant
Secretary of Defense for Public Affairs. Mr. Thompson, thank
you and welcome.
STATEMENT OF JONATHAN F. THOMPSON,
EXECUTIVE DIRECTOR, NATIONAL SHERIFFS'
ASSOCIATION, ALEXANDRIA, VIRGINIA
Mr. Thompson. Mr. Chairman, thank you, Ranking Member
Franken, thank you as well. I want to talk to you briefly today
and summarize my remarks and hope that my complete statement
will be put into the record.
I am Jonathan Thompson, and as you said, I am the executive
director for the National Sheriffs' Association, and we
represent more than 3,000 sheriffs nationwide, from the
smallest rural parish to the largest urban county.
In my conversations with sheriffs across the country, it
has become clear the administration's criminal alien removal
policies are putting sheriffs in an untenable position and, in
the words of Deputy Chief Henry of Pinal County, Arizona, the
current immigration policies are institutionalizing systemic
national security defense issues.
In light of these words, let me be clear about one thing.
Sheriffs support the goal of removing criminal aliens from this
country, and they stand ready to assist our Federal partners in
preserving our national security. But sheriffs will not act
outside the bounds of the Constitution, nor will they ignore
their oaths of office. Any policy advanced by this
administration must be unquestionably legal and, within both
those contexts, constitutional. Otherwise, I must ask this:
Which law do you want sheriffs to break?
Unfortunately, the constitutionality of the key element of
the Priority Enforcement Program is at best unclear. There've
been no legal opinions from the Department of Justice nor from
any State Attorneys General. Disagreement has come from across
the political spectrum. Attorneys all over the country have
taken different interpretations leading to a patchwork of local
ordinances, State laws, and policy directives. Sheriffs are
left with few options in responding to PEP, each with
significant risks to public safety and serious liability
questions. This is unacceptable.
Sheriffs have one simple request: The President should
instruct the Attorney General to put forth a written legal
opinion on the constitutional questions surrounding PEP. To
continue ignoring the question only furthers the view of some
that the President does not support State and local law
enforcement.
It is also imperative that the Congress continue its act of
oversight of the Department of Justice to ensure this legal
opinion is issued.
In the meantime, I would like to call to your attention,
specifically the Davis-Oliver Act, introduced by you, Mr.
Chairman, and Congress Gowdy of the House, which NSA supports.
The bill would strengthen information sharing between DHS and
the FBI's National Crime Information Center data base by
requiring the inclusion of immigration violators, give State
and local law enforcement some immigration powers while also
requiring them to share biological, biographical, biometric,
and other identifying information about the immigration
violators with Federal authorities, and create clear guidelines
for a criminal alien's custody transfer from a State or local
agency to the Federal Government.
Senator, we commend you and Congressman Gowdy for the
introduction of this bill. We thank you very much. The bill
does not negate, however, that immigration enforcement is a
Federal responsibility--not a State one, not a local one. Too
few criminal aliens are deported each year, and the priorities
for deportation are simply too narrow. Even worse, some
criminal aliens otherwise subject to removal end up back into
our communities for lack of travel--travel documentation or
bureaucratic excuses.
In August of this year, the Arizona Sheriffs' Association
issued a statement highlighting three violent criminal aliens
released by ICE in the State, despite convictions of crimes
including aggravated assault, kidnapping, and murder. These are
violent crimes and violent criminals who should be deported,
not allowed to terrorize our neighborhoods.
I am critical of the criminal alien removal policies put
forward by this administration, but I want to emphasize that
the many employees at DHS and ICE and CBP and elsewhere are
committed to this mission of removing dangerous criminal
aliens. I and the sheriffs of this country recognize that those
individuals are equally hampered by these policies, and I
applaud the efforts of local field offices and the work--that
work each and every day to collaborate with sheriffs.
If Sheriff Ted Kamatchus of Marshall County, Iowa, were
here, he would tell you that he works very well with his
localized field office. He would also tell you, however, that
it is the administration's responsibility to help sheriffs
better identify potentially dangerous aliens to ensure
detention and removal processes are consistent and to establish
policies that do not unduly burden our local jails or endanger
our communities.
I again encourage this Committee and the Congress to take
meaningful steps. I am gratified to be here to help you in that
process, and we stand ready to do so, Mr. Chairman.
[The prepared statement of Mr. Thompson appears as a
submission for the record.]
Senator Sessions. Thank you. Dr. Marc Rosenblum is deputy
director of the U.S. Immigration Program at the Migration
Policy Institute. He's also associate professor in political
science at the University of New Orleans. Previously, Dr.
Rosenblum worked at the Congressional Research Service and as a
Council of Foreign Relations Fellow detailed to the office of
Senator Kennedy, our former colleague. He also served as a
member of President Obama's immigration policy team in 2009.
So, Dr. Rosenblum, we would be glad to hear your opening
statement.
STATEMENT OF MARC R. ROSENBLUM, PH.D.,
DEPUTY DIRECTOR, U.S. IMMIGRATION PROGRAM,
MIGRATION POLICY INSTITUTE, WASHINGTON, DC
Dr. Rosenblum. Thank you, Chairman Sessions, Ranking Member
Franken. Thank you for the opportunity to testify today. I will
also summarize my comments and request that my full statement
be included in the record.
Senator Sessions. It will be.
Dr. Rosenblum. Thank you.
The United States has implemented increasingly forceful
measures to combat illegal immigration since the mid-1980s,
mostly by tightening border security, but also through programs
to identify, detain, and deport unauthorized immigrants from
within the United States. Recently, these investments have paid
off as the U.S. unauthorized population has declined by more
than a million people since 2007.
As Director Saldana described, interior enforcement
presents a number of challenges because unauthorized immigrants
are dispersed and, therefore, hard to locate. Unlike at the
border, there is no controlled space to conduct enforcement,
and agents have more limited authority. Interior enforcement is
also expensive because it is labor-intensive and time-
consuming.
In light of these challenges, Congress and successive
Presidents have for decades sought to target enforcement
resources on certain groups of removable non-citizens
identified as high priorities for deportation. In authorizing
legislation and appropriations bills and in formal and informal
executive branch policies, Congress and Presidents of both
parties have consistently focused on the same basic list of
priorities: national security threats, convicted criminals,
border crossers, and repeat crossers.
Even with clearly articulated enforcement priorities, DSH
faces tradeoffs in designing its interior enforcement strategy.
Most importantly, there is a fundamental tension between the
quantity and the quality of deportations. With finite resources
ICE can target unauthorized immigrants who are easy to locate
and deport, but this means less focus on others who may
difficult to locate but who are enforcement priorities for
national security, public safety, or other reasons.
Costs per deportation across different ICE programs
illustrate this tension. Of ICE's four main enforcement
programs, the National Fugitive Operations Program is the most
targeted as it sends teams of agents into the community to
pursue specific high-priority cases. NFOP is also the most
expensive interior enforcement program, averaging over $4,000
per arrest compared to less than $1,000 per arrest for the less
focused Criminal Alien Program.
Tougher interior enforcement also must be weighed against
potential public safety tradeoffs. Many law enforcement
agencies have actively cooperated with ICE due to the perceived
public safety benefits of such cooperation. But hundreds of
other communities have limited their role in immigration
enforcement because it reduces community trust in the police
and takes resources away from core law enforcement
responsibilities. My organization estimates that more than 5.9
million unauthorized immigrants, 53 percent of the unauthorized
population, live in such jurisdictions. This is the main reason
the current administration ended the Secure Communities Program
and redesigned its approach to Federal local cooperation
through the Priority Enforcement Program.
Stricter immigration control can also inflict damage on
American families and communities, as many unauthorized
immigrants are deeply integrated within the United States.
Seventy-nine percent of unauthorized immigrants have lived in
the U.S. at least 5 years, and 39 percent have children here,
most of whom are U.S. citizens. Policymakers, therefore, must
weigh how to best pursue their enforcement mission while also
limiting potential harms to the well-being of immigrant
workplaces and neighborhoods. They also must ensure that civil
and constitutional rights of all U.S. residents are protected.
There is little debate whether DHS or any law enforcement
agency should set enforcement priorities or even about which
unauthorized immigrants should be the highest priorities for
deportation. But real disagreements exist about these deeper
tradeoffs. How important is it maximize the total number of
removals, and the number of interior removals in particular,
versus focusing resources on high-priority cases and exercising
discretion in other cases?
Deportation data from the last decade show that even as
this administration continues to remove immigrants in record
numbers, DHS' answer to this question has changed over time.
Deportations increased especially rapidly between 2003 and
2009, but a shrinking share of deportees had criminal
convictions, and a rising share fell completely outside of DHS'
core enforcement priorities. Forty-seven percent of interior
removal cases in 2008 had no criminal record at all.
Recently, enforcement has focused more narrowly on high-
priority cases. Although interior removals fell by about 50,000
between 2009 and 2013, the number of criminals deported
increased by 10,000. By 2013--this is the last year that we
have detailed records for, but I can talk more about more
recent years as well. By 2013, serious criminals accounted for
68 percent of interior removals and non-criminals just 13
percent. Border removals, another top priority, increased by
100,000 in these years. As a result, 99 percent of all removals
in 2013 fell within one of DHS' enforcement priority
categories.
In closing, DHS has not only established more specific
enforcement priorities; it has by and large been successful in
implementing its goals. Thank you again, and I would be happy
to answer any questions.
[The prepared statement of Dr. Rosenblum appears as a
submission for the record.]
Senator Sessions. All right. Do you want to go first?
Senator Franken. You can go first, Chairman. You are the
Chairman. You decide.
Senator Sessions. Thank you. You've been very patient,
Senator Franken, and I appreciate that.
Senator Franken. Well, I admire the Chairman very much.
Senator Sessions. I know you care about these issues, and I
appreciate your attention to them.
Mr. Thompson, what Ms. Vaughan said strikes me as being
very troubling for your members when she says this individual
had 62 situations of aliens being arrested for 225 charges,
many of them violent charges and so forth, and only five of
those would ICE they accept--would accept for removal. Isn't it
true that, as you understand the law, they must deport criminal
aliens? And do you feel like that if the Federal Government is
going to take over immigration, which apparently it is and has
the legal right to do, it ought to follow through and follow
the law?
Mr. Thompson. Absolutely, sir. The answer to your first
question is yes, I do have that belief. The trick on this one
is that someone is arrested and put into a county jail. They
are fingerprinted. Those fingerprints are shuttled off to the
great divide in Washington and elsewhere. A hit comes back on
an NICS program and says that person is here, detain them. An
electronic document is forwarded to a sheriff's office in many
places, and sometimes it is just a fax, and it says, ``Please,
we are requesting that you detain this person.'' They have
reason to believe he falls into one of these--these categories.
Sir, as you know all too well, that is a clear violation of
what the Supreme Court said we have to do or we can do. A
sheriff cannot, cannot violate the Constitution by saying,
``Okay, we'll hold that person until you either come and get
him or until you send us a Federal warrant.''
This is a terrible situation for our Nation to be in. I
believe--this is me personally. I believe it is either
politically naive, ignorance, or just incompetence that we're
seeing. But I do believe it is a political calculus. I really
do believe that. And as I sat here and I listened to the
Director, I was--I was shaken. And as I listened to these
statistics and as I talk to sheriffs across this country, every
day there are dozens and dozens, if not hundreds or thousands
of these requests that come through that say, ``Hold this
person,'' and they cannot in good faith do so. They must
release these people.
And yet--and yet we still have more money going to ICE; we
have more officers at ICE who are hamstrung and whose hands are
tied, and it is the communities that are at risk here, sir. The
communities.
Senator Sessions. Just a simple question. I have asked this
of law enforcement officers. I often ask it at town halls. What
happens if a person recklessly driving has an accident, the
officer approaches and finds out the individual is illegally in
the country? I ask what happens. At the town halls, people say
will you turn them over to the Feds for deportation? If you
talk to the officers, they say they will not even pay attention
unless there are multiple numbers with multiple serious
offenses. Is that true?
Mr. Thompson. That is absolutely the case.
Senator Sessions. So, the average sheriff's deputy doing
his duty, not spending Federal taxpayers' money----
Mr. Thompson. That is correct.
Senator Sessions [continuing]. But in protecting the local
citizens, when he finds somebody, they won't even come and get
him.
Mr. Thompson. That is correct, sir.
Senator Sessions. Ms. Vaughan, well, how would you comment
on the detainer situation? Have you given any thought to that
and how that might be solved?
Ms. Vaughan. I have. First, I need to say that the Code of
Federal Regulations is very clear on this. It says that when a
local law enforcement officers receives a detainer from ICE,
that they shall maintain custody of that individual for no more
than 48 hours after they--but it does say--you know, the
expectation is that they would maintain custody of him.
Congress has given ICE the authority to issue these detainers,
and the expectation is that they should be complied with. And
more than 90 percent of the sheriffs in the country do comply
without any problem. They want to comply. Even police chiefs in
self-described sanctuary jurisdictions tell me and have
testified that they comply fully with all ICE detainers that
are issued.
So, it's not a question of them being, you know, you know
illegal or unconstitutional. You know, they are an accepted,
lawful instrument for ICE to use in getting custody of people
that they would like to pursue for deportation.
So, the problem is that the Obama administration has
introduced some confusion into this by changing decades of
interpretation of the regulations and the authority that they
have from Congress to issue detainers, and all of a sudden said
that these are just requests; whereas, before, they were always
considered obligatory for law enforcement agencies to respond
to.
And, of course, you know, a sheriff would always honor a
detainer request from the U.S. Marshals or from the U.S.
Military Police or a probation office. If one of those agencies
issued a request for them to hold someone, they wouldn't think
twice about it. It is just the fact that it is immigration
enforcement that makes it political and controversial.
So, you know, I think--and the administration's policy was
done without any legal foundation and over the objections of
their very senior career people at that agency. So, to the
extent that there is any confusion on this, in my opinion, the
Obama administration has instigated that confusion with the
goal of exposing the sheriffs to legal action. And it could
have been solved with the anti-sanctuaries bill that you wrote
and introduced. So, that's the answer. I mean, there is
immunity; 287(g) officers have immunity. That same immunity
could be offered to any law enforcement officers who receives a
detainer from ICE.
Senator Sessions. Well, my time is up on that, but it is
something we do need to solve. Briefly, could ICE issue the
detainer before the person is due to be released and wouldn't
they then be willing to turn the person over when his term is
up, or even before?
Mr. Thompson. Oftentimes they do provide the detainer
before they are due to be released, and----
Senator Sessions. That can solve the problem.
Mr. Thompson. It can solve a part of the problem. But the
biggest part of the problem is that after that timeline, over
90 percent of the time there is no ICE officer there to collect
that individual, there is no Customs and Border Patrol officer
there to collect that individual, the sheriff can no longer
hold that individual. They must be released.
Senator Sessions. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Dr. Rosenblum, I would like to stay for a moment on the
tradeoff that you mentioned and the relationship between
immigration enforcement and public safety. One of the main
differences between the Priority Enforcement Program, PEP, and
its predecessor, Secure Communities, is that PEP limits certain
forms of cooperation between DHS and local law enforcement
agencies. In your view, how does the PEP program work within
this tension? And how does it enhance public safety? What is
the purpose of this?
Dr. Rosenblum. So, thank you, Senator. As you know, the PEP
program relies on the exact same information sharing between
FBI and DHS to allow DHS to identify potentially removable non-
citizens who get arrested. What PEP--I think PEP tries to
respond to two different problems that Secure Communities
encountered. One was that Secure Communities, especially in its
early years, a majority of the people who were deported as a
result of Secure Communities either had never committed a crime
or had only committed very minor offenses. That was true for
the first 3 or 4 years of the program, and that is a lot of
what generated such a broad backlash against the program in
communities around the country. And it is not just San
Francisco and New York that objected to Secure Communities. It
was hundreds of cities and towns and States around the country.
I mean Wichita, Kansas; Atlanta--you know, these are not
bastions of liberalism that found Secure Communities
problematic.
So, the main thing that PEP does is it says we are only
going to take custody of people who come in through the
criminal justice system if they have committed a serious crime.
So, it limits it to people who have committed felonies or
serious misdemeanors or multiple misdemeanors, instead of
someone who just gets pulled over for a driving offense,
because that is what generated a lot of the backlash.
And then it also allows communities to sort of negotiate
with DHS, here is what our community is comfortable with,
because many police chiefs, you know, the Major Chiefs
Association that represents all the large city police and many
other professional police organizations and individuals have
argued that to have the Federal Government mandate that local
police work hand in glove with DHS compromises the efforts by
those police departments to have strong relationships with
their immigrant communities, to have community trust, to do
community policing, so then immigrants are unable to report
crimes, they are unable to, you know, cooperate with
investigations. So, many jurisdictions around the country have
weighed the pros and cons and found that they would rather have
more limited cooperation, and that is what PEP sort of aims
for.
Senator Franken. Is there any data about public safety
using one approach versus another?
Dr. Rosenblum. Well, we do not really have data on PEP
because it has only been in existence for about six months.
There have been a couple of big studies of Secure Communities
that found that as the Secure Communities program was rolled
out in counties around the country, it had no discernible
impact on crime. So, Secure Communities has never really
operated as a crime control program. It has always been an
immigration enforcement program.
Senator Franken. Okay. Well, I just meant sanctuary cities
versus non, and whether that--the whole point is to build trust
within the community and whether, you know, on a macro level
what effect has that had. Has there been any data regarding
that?
Dr. Rosenblum. I have not seen that data.
Senator Franken. Okay. Some of my colleagues have argued
that the decrease in ICE removals that we have recently seen
stands as evidence that the administration is simply deporter--
deporting fewer people or that it is uninterested in enforcing
our immigration laws. What's accountable for these falling
interior removal numbers? And what does it say about the
overall state of enforcement, the subject of this hearing?
Dr. Rosenblum. Well, when you look at the overall numbers,
the overall removal numbers remain at record-high levels. The
last year that we have complete data for is 2014. In 2014,
there were 418,000 formal removals from the United States. The
Obama administration has removed over 400,000 every year
since--well, every year since 2010 or so, I guess, and every
year of the Obama administration has been--there have been more
formal removals than in any year of the Bush administration or
any prior administration.
What we have seen with the falling interior numbers is a
sharp increase in the border removals, and a number of ICE
agents have been shifted to the border, partly to respond to
the child migration surge because we have seen this big
increase in children and families coming from Central America,
and those cases are much more difficult to adjudicate. Almost
all of those cases end up in a formal removal proceeding rather
than, you know, an expedited removal. So, ICE has surged some
resources there and also s urged some resources to combat the
smugglers that are at the heart of a lot of those Central
American flows.
But when you look at the bottom-line numbers and if we want
to evaluate the state of immigration security, the two most
important numbers are unauthorized immigrants in the U.S. are
down by a million since 2007--it is a sustained drop. It is the
first time we have ever seen a drop in the unauthorized
population. After 40 years of increases, we have now seen a 7-
year drop. And border apprehensions have also had a sustained
drop. When you subtract out asylum claimants and unaccompanied
children, when you look at traditional and authorized
immigrants at the border, if you look at the number of Mexicans
apprehended at the border, those are also at 40-year lows and
the Mexican numbers have continued to drop year after year. You
know, 7 years after the Great Recession, we are still seeing
fewer apprehensions, which reflects increased border security.
Senator Franken. I'm out of time. May I ask your indulgence
to ask one more question? And I think it is probably a short
answer.
Senator Cruz in his questioning cited the number of 12
million deportations during the Clinton administration. You
were just saying that there are more deportations in each of
the years of the Obama administration and under previous
administrations. My math head says there is some--it does not
compute.
Senator Sessions. That is pretty good math. He majored in
mathematics at MIT.
[Laughter.]
Dr. Rosenblum. There is an apples and oranges----
Senator Franken. What did you just say?
Senator Sessions. Didn't you major in math?
Senator Franken. No, I did not major in math, and I did not
go to MIT. But other than that----
[Laughter.]
Senator Franken. I was good at math. I was good at math.
But, I mean, it does not--12 million over 8 years is a million
and a half every----
Senator Sessions. Even I could understand the problem.
Senator Franken. Okay.
Senator Sessions. But he is good at math.
Dr. Rosenblum. I believe that. I think Senator Cruz was
talking about border returns, so during the 1990s, throughout
the Clinton years and the early Bush years, we had huge volumes
of border apprehensions because there was--you know, the state
of border security was not as good as it is now. And 95 percent
or more of the people apprehended at the border were turned
around on border returns. So, over the course of the Clinton
administration, there probably were about 12 million--I do not
think it was actually quite that high, there would have been
close to 12 million border apprehensions over the course of
those 8 years--not quite that high, so his numbers are probably
a little off, but almost all of them would have been turned
around at the border. The number of removals, formal returns--
formal deportations and removals over the course of the full 8
years of the Clinton administration were probably between
400,000 and 500,000 for 8 years, so about 1 year of the Obama
administration.
Senator Franken. So, in other words, the numbers--he was
doing apples and oranges.
Dr. Rosenblum. Yes.
Senator Franken. Which is formal removals versus turnaways
at the border.
Dr. Rosenblum. Right. The formal removals prior to--you
know, prior to the Bush administration, the highest number of
formal removals ever was in the low hundreds of thousands.
Senator Franken. Okay. I just--when he brought that up, I
just went, ``Something is not right there.'' Thank you, Mr.
Chairman, for your indulgence, and thank you to all of you for
your service.
Senator Sessions. What did happen is that ICE, when their
numbers began to plummet, started counting border removals as
part of their removals, and it was a misrepresentation, and
deliberate to hide the weakness that was occurring. What we do
know is that the administration asked for enough money to do
400,000 aliens a year, they said. Yet in 2014 the removed only
315,000, in 2015 only 235,000. And only 63 of those were
criminal aliens that have been removed, and they are probably
counting border removals in those numbers, I guess.
But, Ms. Vaughan, you've done some--you've written a paper
about this. Would you just like to briefly comment on that, on
this discussion?
Ms. Vaughan. Sure. First of all, I want to say that on the
issue of the chilling effect, there actually are some excellent
studies that have been done on this about whether or not
cooperation of local law enforcement agencies compromises
community policing, and it is, you know, pretty clear that this
concept of some kind of chilling effect is a myth. It is not
supported by the Government data, law enforcement data,
academic surveys, or the actual experiences of law enforcement
people. So, there is a lot of information available on that.
But with respect to the deportations, what Senator Cruz was
referring to are all deportations, which includes anyone
deported by ICE or the Border Patrol. So, he was counting
apples and oranges against, you know, the apples and oranges
count of that same count of deportation under the Obama
administration. And I would have to check the exact numbers,
but that I believe is entirely consistent with what the
Department of Homeland Security's Office of Immigration
Statistics has reported in their annual yearbook.
So, I think it is pretty accurate, and you are right, what
the Obama administration did differently was that they started
taking Border Patrol cases which would formally have been
counted as returns and processing them as a removal so that
they would pump up artificially the number of removals, which
is one form of deportation. So, when you are talking about just
counting removals, you are not counting all deportations.
Senator Sessions. Well, Ms. Vaughan, let's follow-up on
that a little bit. If Mexicans attempt to cross the border
unlawfully, then they can be stopped at the border and
immediately sent back. Is that correct?
Ms. Vaughan. The most accelerated way to do it is through
expedited removal, yes.
Senator Sessions. Expedited removal is the----
Ms. Vaughan. Unless they want to prosecute them for reentry
after deportation.
Senator Sessions. But when--but when people come from
Central America, with or without children, they can claim
asylum; they cannot be immediately--apparently we take the view
they can--cannot be immediately sent back to Mexico. So, then
they are in the United States, and what I am hearing is that
they turn themselves in to the Federal officers and say, ``Take
care of me.'' And what's happening frequently? Do you know what
happens?
Ms. Vaughan. Yes. See, from what I hear from Border Patrol
agents is that they turn themselves in to the Border Patrol,
and the Border Patrol is required to turn--well, under the
current interpretation of what's required, the Border Patrol is
told to turn the families and children over to the Office of
Refugee Resettlement and process them as unaccompanied minors
or with the families they are offered the opportunity to apply
for asylum and then are released to appear at a court hearing
at some time years in the future. So, they are offered a very
generous form of due process when they could be processed
through expedited removal, just like any other recent border
crosser. But the choice is being made to allow them to have a
hearing rather than use expedited removal.
Senator Sessions. This, in effect--self----
Ms. Vaughan. And usually that asylum claim comes later on
in the process once they----
Senator Sessions. My understanding, my criticism of the
administration when we had the huge flow, increase, was that
you are sending a message to Central America that all you have
got to do to get into the country is come in and turn yourself
in. So, they claim they spent money on ads in Central America
and they did things like that, but they did not change the
policy. And now we are having another surge again now, and I
see one of the top officers stated that you normally see a
decline in the flow at this time of the year, but it is still
increasing. It is not declining.
And so, what's your opinion with regard to the necessity of
having a clear immigration policy so that before somebody
leaves their home, spends a lot of money, places themselves at
risk, and tries to get into the United States, don't they need
to know that they are likely to be apprehended and will, in
fact, be deported? And if we do that consistently, we could
have a plummeting of the attempts? Is that right?
Ms. Vaughan. Yes, what the new arrivals are telling the
Border Patrol is that they came because they knew they would be
allowed to stay. So, if we want to change that incentive, the
policy has to change. They are getting text messages and, you
know, messages on Facebook and so on with pictures of the
notice to appear, what they called a ``permiso,'' and sending
it back to their friends and family in their home country.
That's what the Border Patrol intelligence has learned. That--
people are coming because they know they will be allowed to
stay, and until that changes, they are going to keep coming.
Senator Sessions. And so, it doesn't--especially for people
in the underdeveloped world, they do not pay any attention to
the law on the books. They want to know what is going to
happen. And what's going to happen is under current
circumstances they are going to be turned over to the law
enforcement officers, placed in some secure place and held in--
to family members or others if they get into the country, and
this is going to only accelerate the problem. Mr. Thompson, are
you familiar with the 287(g)?
Mr. Thompson. I am familiar with it.
Senator Sessions. I remember when that got started. I
worked with the Bush administration on it. They were a little
slow. You know, they get nervous if you let local law
enforcement have any role to play, so they have to have a big
training program before anybody can even--they can arrest the
mayor of the town, a local 22-year-old police officer, but he
cannot arrest somebody who is illegally in the country until he
has had a long-term training program by the--but, anyway, that
is what we agreed to, and the bill was passed, and they added
quite a number of 287(g) contracts or programs, which
essentially taught the local law enforcement what they could do
and how they could do it and how they could cooperate to
identify particularly dangerous criminals.
I'm amazed that it has declined by half--more than half, it
appears, in the last few years. And certainly it should have
been made--the Department, I think, should have sought to have
it nationwide in almost every jurisdiction.
Mr. Thompson. It is staggering because that number is going
to go even lower, contrary to what I think you heard earlier.
There are two principal problems for local law enforcement, in
particular sheriffs, to participate in 287(g):
Number one is cost. It is an exorbitant cost to the jail
operations because they have to convert their facilities to
meet the PREA requirements, Prison Rape Elimination Act. As you
know, Senator, that is an enormous burden, a financial burden
on a small county of one, two, three deputies----
Senator Sessions. Did that use to be the situation?
Mr. Thompson. Pardon me?
Senator Sessions. Was that originally the situation?
Mr. Thompson. It was not. It became part of PREA----
Senator Sessions. I remember Alabama was one of the first
States to get approved for that.
Mr. Thompson. That is probably correct. That PREA cost can
be staggering to a small community. If you look at the border
counties alone from Texas all the way to California, with the
exception of maybe San Diego County, the cost to become PREA
compliant would bankrupt that sheriff. You are talking about--
--
Senator Sessions. Thank you for sharing that. I did not
know that that was a problem.
Mr. Thompson [continuing]. New facilities. You are talking
about new facilities, new beds, new clothes, new security
camera systems, new training. The training alone for a new
deputy to understand the ICE programs, it requires--I believe
it is 14 days away from their office to be compliant in the ICE
training procedures. It is a staggering cost to these small
counties, yet in the 287(g) program, there are very limited
funds to reimburse these counties for that--those costs.
Senator Sessions. Often they have to pay their own expense
for the training.
Mr. Thompson. Absolutely. Absolutely.
Senator Sessions. Go ahead.
Mr. Thompson. So, I was sitting here, and I was listening
to the $113 million discussion, and my head almost exploded.
Give us the money. Give it directly to sheriffs, and we will
put it right into 287(g) requirements. We will take those
dollars, and sheriffs will be glad to help the Federal
Government.
Senator Sessions. That is fabulous. The sheriffs and the
police have some incentive because if you have got a bad
person, you want them removed from the country, not just
released again into the streets. But I thought the Federal
Government should spend more money to help this, and I thought
the training program was awfully long. Do you remember how long
it----
Mr. Thompson. I believe it is 14 business days.
Ms. Vaughan. It could be 5 weeks.
Senator Sessions. Five weeks.
Mr. Thompson. Five weeks. I am sorry.
Senator Sessions. I think that is right. So, I mean, I do
not know. That is a lot of training----
Mr. Thompson. That is a staggering cost.
Senator Sessions [continuing]. Just to learn a few--who to
call basically and how to handle yourself.
Mr. Thompson. Let me just read you--in February, March,
April--in May I was down in Cochise County, Arizona. Cochise
County is one of the most remote counties of this country. It
is also one of the highest transit points in the Nation for
illegal immigrants. Sixteen sheriff's deputies. If those
deputies participated in the ICE 287(g) program, they have to
be out of that office to understand--they have to meet the
training requirements, plus that cost is borne not by ICE but
by that county. ICE contributes certain dollars to it. They
might pay the lodging costs. They might pay the air fare. But
those deputies area not doing their job. They are now out at
training. So, a sheriff has to pay overtime to cover that loss.
So, in these remote counties, it is a back-breaking, a
financial back-breaking exercise.
Just a point. We met last week with the head of ERO, Tom
Homan, and this was one of the issues we have got to fix. And I
think there is a solution there. I believe there is a solution
there, and we will work with them, whatever it takes. But to
hear $113 million is returned and reprogrammed because they
didn't spend it, when sheriffs are going broke, the counties
are going broke along the border, send us the money. Send it
directly. Do not give it to the Governor. Send it directly to
the sheriffs.
Senator Sessions. I think that is good advice. Now, Ms.
Vaughan, you said there are two million criminal aliens in the
country. It seems to me that if the administration utilized
expanded 287(g), they would have identified many of those,
instead of being released, and could have ensured they were
deported, and now they may be committing other crimes on a
regular basis, victimizing other people. Is that a legitimate
concern?
Ms. Vaughan. It most definitely is a concern, and about
half of those criminal aliens are at large. And that's an
estimate that ICE came up with once the Secure Communities
program got rolling.
The problem is not so much finding criminal aliens, because
with that interoperability they get an alert when a fingerprint
is taken of somebody who matches within the DHS data bases.
Now, of course, the problem is also that many of the illegal
aliens who are here committing crimes are not known to DHS yet
because they--you know, if they crossed the border illegally,
they were not apprehended by the Border Patrol. No one has
taken their fingerprints. There is nothing to match it to. And
in some places, I was told by a jail supervisor in Harris
County, Texas, a few years ago--he ran their 287(g) program,
and he said about 50 percent of the criminal aliens in that
jail were not identified through fingerprints, that it requires
an interview with the alien to determine that they are here
illegally. And so, you know, more is required than just
matching fingerprints, and that is why it is such a problem
with some of these sanctuary jurisdictions now, blocking ICE's
access to the jails because now nobody has any idea who these
people are, where they are from, whether they are removable.
So, that is a real public safety and security vulnerability.
And if they are released on top of it, they have the ability to
go about their criminal activity, and they do reoffend. ICE
officials will tell you off the record that they believe about
50 percent of criminal aliens who are released for one reason
or another, whether it is by sanctuaries or because of
prioritization policies, will go on to reoffend.
Senator Sessions. Well, I am not surprised. That is about
the recidivist rate we have, anyway.
Well, thank you all. This is an important issue. I do
believe truly that we are undermining deliberately the
effectiveness of our immigration laws. This is encouraging
people to come to America unlawfully, to not comply and wait
their time, making a mockery of those who patiently wait and
try to do it the right way, denying the American people the
right to choose and select people by law that improve--serve
the national interests and who will most likely prosper in our
country instead of not prosper. And it's just a very bad thing.
And the President has no right, because the legislation he
wanted to pass did not pass, to carry on in this fashion. And I
think this today demonstrated the failure of our system when
the one area that we were promised was going to be aggressively
pursued was criminal aliens. And that is plummeting also. So,
there is nothing really working effectively.
So, I thank you all for testifying. The record will remain
open for one week. The hearing is adjourned.
[Whereupon, at 5:11 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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A P P E N D I X
to
OVERSIGHT OF THE ADMINISTRATION'S
CRIMINAL ALIEN REMOVAL POLICIES
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-114shrg52543/pdf/CHRG-
114shrg
52543-add1.pdf
Miscellaneous submission for the record:
Saldana, Sarah R., Letter........................................ 2