[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]

                        TO DEPORT CRITICALLY ILL.
                      CHILDREN AND THEIR FAMILIES



                               BEFORE THE


                                 OF THE

                         COMMITTEE ON OVERSIGHT
                               AND REFORM

                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                            OCTOBER 30, 2019


                           Serial No. 116-70


      Printed for the use of the Committee on Oversight and Reform


                  Available on: http://www.govinfo.gov
                    http://www.oversight.house.gov or

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
38-307 PDF                  WASHINGTON : 2020                     

            CAROLYN B. MALONEY, New York, Acting Chairwoman

Eleanor Holmes Norton, District of   Jim Jordan, Ohio, Ranking Minority 
    Columbia                             Member
Wm. Lacy Clay, Missouri              Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts      Virginia Foxx, North Carolina
Jim Cooper, Tennessee                Thomas Massie, Kentucky
Gerald E. Connolly, Virginia         Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois        Jody B. Hice, Georgia
Jamie Raskin, Maryland               Glenn Grothman, Wisconsin
Harley Rouda, California             James Comer, Kentucky
Katie Hill, California               Michael Cloud, Texas
Debbie Wasserman Schultz, Florida    Bob Gibbs, Ohio
John P. Sarbanes, Maryland           Ralph Norman, South Carolina
Peter Welch, Vermont                 Clay Higgins, Louisiana
Jackie Speier, California            Chip Roy, Texas
Robin L. Kelly, Illinois             Carol D. Miller, West Virginia
Mark DeSaulnier, California          Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan         Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands   W. Gregory Steube, Florida
Ro Khanna, California                Fred Keller, Pennsylvania
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan

                     David Rapallo, Staff Director
                     Candyce Phoenix, Chief Counsel
                          Amy Stratton, Clerk

               Christopher Hixon, Minority Staff Director

                      Contact Number: 202-225-5051

            Subcommittee on Civil Rights and Civil Liberties

                    Jamie Raskin, Maryland, Chairman
Wm. Lacy Clay, Missouri              Chip Roy, Texas, Ranking Minority 
Debbie Wasserman Schultz, Florida        Member
Robin L. Kelly, Illinois             Thomas Massie, Kentucky
Jimmy Gomez, California              Mark Meadows, North Carolina
Alexandria Ocasio-Cortez, New York   Jody Hice, Georgia
Ayanna Pressley, Massachusetts       Michael Cloud, Texas
Eleanor Holmes Norton, District of   Carol D. Miller, West Virginia
    Columbia                         Frank Keller, Pennsylvania
                        C  O  N  T  E  N  T  S

Hearing held on October 30, 2019.................................     1


Mr. Ken Cuccinelli, Acting Director, U.S. Citizenship and 
  Immigration Services, U.S. Department of Homeland Security
Oral Statement...................................................     8
Mr. Matthew Albence, Acting Director, U.S. Immigration and 
  Customs Enforcement, U.S. Department of Homeland Security
Oral Statement...................................................    10

Written opening statements and statements for the witnesses are 
  available on the U.S. House of Representatives Document 
  Repository at: https://docs.house.gov.

                           Index of Documents


Documents listed below are available at: https://docs.house.gov.

  * Statement, Lawyers Community for Civil Rights in Boston; 
  submitted by Rep. Pressley.

  * Statement, American Immigrant Lawyers Association; submitted 
  by Rep. Pressley.

  * Letter, Interfaith Immigration Coalition; submitted by Rep. 

  * Letter, New York Legal Assistance Group; submitted by Rep. 

  * Letter, Boundless Processing Delays.

  * Letter, Boundless Cover Letter regarding Cuccinelli.

                        TO DEPORT CRITICALLY ILL
                      CHILDREN AND THEIR FAMILIES


                      Wednesday, October 30, 2019

                   House of Representatives
   Subcommittee on Civil Rights and Civil Liberties
                  Committee on Oversight and Reform
                                                   Washington, D.C.

    The subcommittee met, pursuant to notice, at 10:06 a.m., in 
room 2154, Rayburn Office Building, Hon. Jamie Raskin, 
(chairman of the subcommittee) presiding.
    Present: Representatives Raskin, Clay, Wasserman Schultz, 
Kelly, Gomez, Ocasio-Cortez, Pressley, Norton, DeSaulnier, 
Cooper, Maloney, Roy, Massie, Cloud, Miller, Keller, and 
    Mr. Raskin. Good morning, everyone. Thank you all for 
joining us here today. The subcommittee will come to order. 
Without objection, the chair is authorized to declare a recess 
of the committee at any time.
    Today's hearing will examine the administration's decision 
to deport children with critical illnesses, a decision that was 
recently reversed following public outrage and pressure from 
this subcommittee.
    I will now recognize myself for five minutes to give an 
opening statement and then I will turn to the ranking member.
    We are here to get to the bottom of the administration's 
mysterious campaign to deport critically ill children and their 
    It appears that this policy has, thankfully, been reversed 
after Congress and the American people rose up in an outcry at 
the cold inhumanity on display in this policy.
    I am going to treat this hearing as not only in honor of 
the memory of our late beloved chairman, Elijah Cummings, but 
as a hearing in direct pursuit of a policy objective that was 
close to his heart.
    The threatened deportation of sick children was such an 
outrage to Chairman Cummings that his very last official act 
before his death was to issue subpoenas to hold the 
administration to account.
    On Wednesday, in the waning hours of his life, through all 
of his pain and difficulty, Chairman Cummings recognized the 
indelible stain that this policy would leave on our Nation and 
he made holding the government accountable his final official 
act, and we now have a sacred obligation to follow through on 
his subpoenas to make sure that we defend some of the most 
vulnerable people on the planet--sick children who have come as 
strangers to our land to seek medical assistance.
    So, to our witnesses today, I want to be clear. This 
subcommittee intends to follow through on Chairman Cummings' 
promise to unearth the truth behind this policy and his desire 
to ensure that the policy is truly reversed and that our 
government treats people in this category with the dignity that 
they deserve.
    Not only do we owe that to our late beloved chairman, but 
we owe it to Maria Isabel Bueso, to Jonathan Sanchez, to Serena 
Badia and all of the immigrants whose health and whose lives 
were threatened by the policy implemented by USCIS.
    USCIS must explain, first, what the current policy is on 
deferred action. It cannot keep the process shrouded in secrecy 
while these kids wait to hear their fate.
    If we could go to the slide. On September 18, Acting 
Secretary of Homeland Security Kevin McAleenan ordered the 
acting director, Mr. Cuccinelli, who is with us here today, to, 
quote, ``ensure that effective immediately USCIS resumes its 
consideration of non-military deferred action requests on a 
discretionary case-by-case basis.'' It is unclear whether USCIS 
has actually granted relief to anyone since reversing course.
    He further ordered USCIS to, quote, ``ensure that the 
procedure for considering and responding to deferred action 
requests is consistent throughout USCIS and that discretionary 
case-by-case deferred action is granted only based on 
compelling facts and circumstances.''
    What exactly does this mean? What is the problem that USCIS 
is trying to fix? What changes are being considered? Will any 
outside stakeholders be consulted?
    We want to have maximum transparency to ensure that USCIS 
is not imposing unreasonable requirements on immigrants who 
deserve our attention and our mercy.
    In the meantime, USCIS should explain what will happen to 
people whose prior deferrals have expired while their renewals 
are still under review.
    We have heard from the family of a 12-year-old boy with an 
incurable condition that could cause him to bleed to death if 
he is not treated correctly.
    Both of his parents applied in March to renew their 
deferrals but have been waiting for months without any decision 
at all. His father's deferral expired in August. His mother's 
deferral expires in January.
    Without a deferral, neither parent would be authorized to 
stay or work in the United States, threatening their ability to 
support and care for their sick son.
    So, what does USCIS recommend families like his do while 
the agency is trying to decide how to reinstate deferred 
action? How many more people are stuck in this kind of limbo 
and what will we do to protect them?
    We want basic answers to these questions and we come here 
not in any kind of ``gotcha'' spirit. We just want to deal with 
a very serious problem that was brought to our committee.
    The ongoing confusion regarding deferred action reflects 
the same kind of chaos that apparently produced this policy in 
the first place and that prompted our last hearing and for 
which the administration I hope today will provide us answers.
    What little we have been able to learn about how this 
policy came to be indicates that it was undertaken in haste 
without any effort to ascertain what its health and life-
threatening effects would be on the people affected.
    At our hearing in September, we heard the compelling 
stories of people who were directly harmed by the policy. 
Isabel Bueso, a 24-year-old woman suffering from a rare 
disease, testified that deportation would be, quote, ``a death 
sentence for me.''
    She told us, ``I want to live. I am a human being with 
hopes and dreams in my life.''
    Jonathan Sanchez is a 16-year-old suffering from cystic 
fibrosis, which is a disease that affects people in my family.
    Jonathan Sanchez told us that upon learning he was facing 
deportation, he broke down in tears, pleading, quote, ``I do 
not want to die. I don't want to die. If I go back to Honduras 
now I will die.''
    In his words, quote, ``It is incredibly unfair to kick out 
sick kids who are in the hospital or at home taking treatments 
and who are just trying to have better opportunities to live.''
    It is obvious from the testimony that USCIS either did not 
realize what the real-world implications of its policy would be 
or it knew and decided to go ahead anyway.
    Either reality, I think, would be damning. But the effects 
on Maria and Jonathan would have been entirely foreseeable if 
USCIS had sought public feedback before instituting the new 
    According to the USCIS, it failed to consult a single 
external stakeholder before jeopardizing these families. Making 
matters worse, USCIS did not even issue any public announcement 
about the policy or provide any guidance to people in Maria and 
Jonathan's situation, or any of the critically ill children and 
their families about what would come next and what they should 
be done.
    Why not? What was the reason for the secrecy and the 
surprise? Is it USCIS's practice to implement massive policy 
shifts like this without providing public notice?
    Sadly, the threatened deportation of sick kids is just one 
example of this administration's mistreatment of immigrant 
children. It is not the only one.
    USCIS in particular has engaged in a pattern of developing 
policies that endanger children.
    Since, Mr. Cuccinelli, you took office, USCIS has 
eliminated automatic citizenship for some children of U.S. 
soldiers stationed overseas, introduced new barriers for 
immigrant kids fleeing domestic abuse in their home countries, 
and rolled out a public charge rule that has scared many 
parents into removing their children from the Central Health 
and Nutrition Services.
    Each of these acts is an affront to the central tenet of 
Chairman Cummings' philosophy, that children are the living 
messengers that we send forward to a future that we ourselves 
will never see.
    The last hearing that Chairman Cummings attended was our 
September 11 hearing on this issue. Treating children with 
dignity was so important to him that he made a point to come 
down from Baltimore, despite his advanced failing health.
    At that hearing, Elijah said, quote, ``I really do think 
that we are in a moral situation. People are striving to live. 
They are trying to breathe the air of our country. They are 
trying to be better. They are trying to be healthy.''
    Chairman Cummings, who himself was striving to live at that 
moment, trying to be healthy, wanted these children to have the 
same access to medical treatment that he did.
    We will honor the chairman's memory and the humanity of all 
those seeking deferred action by remaining vigilant, conducting 
rigorous oversight, and working to guarantee that this 
administration treats immigrants with the dignity they deserve.
    I welcome today's witnesses--Mr. Cuccinelli, Mr. Albence. 
We are delighted that you came today. But we want to make sure 
that we see no further bureaucratic stonewalling and confusion 
on these matters.
    We want clarity. We are here for answers and we will not 
stop until we get them. We thank you for coming and I am now 
delighted to recognize the distinguished ranking member of our 
committee, Mr. Roy.
    Mr. Roy. Thank you, Mr. Chairman.
    Thank you, Mr. Cuccinelli, Mr. Albence. Thank you for 
coming up here and visiting with us today.
    I will reiterate what I said in a hearing last week, that, 
obviously, our continued prayers are with the family of 
Chairman Cummings and with his staff.
    We, obviously, had a great event here in the Capitol last 
week and I am honored to participate in that and we will 
continue to move forward in this committee carrying forward the 
chairman's legacy and wanting to do what is right and to be 
better, right.
    I do want to say one thing as we head into this, that--and 
it will not surprise the chairman that I will raise this issue, 
that currently there are two depositions going on and those 
depositions are--or, at least, two are scheduled today. One, I 
think, is going on now in another part of the Capitol and it is 
impossible for me to be in two places at once.
    So, I am sitting here as the ranking member of the 
subcommittee and I want to carry out my duties to do that, and 
I am unable to go hear that and then I am unable to go easily 
see transcripts.
    I am unable to easily catch up on what I am missing because 
we are carrying out the duties of our day. I don't think that 
is the right way to carry out things.
    I know there is going to, apparently, be a vote tomorrow on 
something on this process. But I would just suggest that this 
is part of the problem in real time.
    So, anybody watching this, this is the problem with this 
current broken process.
    Here I am sitting. There are very few members here, at 
least in our side of the aisle. I would also note that I would 
say my prayers and well wishes to Mr. Hice, whose father passed 
away yesterday, and so I know he is not able to join us today.
    But I don't think this is the way we should be conducting 
those kinds of inquiries.
    Today, we have a hearing titled, ``The Administration's 
Decision to Deport Critically Ill Children and Their 
Families.'' I would take issue with that title.
    I do not believe that is what the administration was 
seeking to do. I think that we are talking about a process 
change and that we ought to get to that.
    This is a topic that involves deferred action requests for 
people not lawfully present seeking to stay for sympathetic 
reasons. And this is not the first. We have had the hearing you 
mentioned on 9/11.
    But to be clear, deferred action is not a program. Deferred 
action is a decision, right? It is a decision, and it is a 
judgment call reserved for those with prosecutorial powers. We 
ought to treat it that way, and then we ought to have a 
discussion about policy changes if there are any to be had for 
anybody who is here and has overstayed a visa or is sitting 
here and is in a situation that the chairman described.
    We are just dealing with a policy change that would have 
taken USCIS out of a role it has no real underlying authority 
to carry out, if I understand it correctly, and it would then 
leave prosecutorial decision-making to those who actually have 
that power.
    At the time of the first hearing, USCIS had already 
announced that it would evaluate pending claims subject to an 
internal policy change.
    USCIS also sent a letter to the committee the day before 
the hearing noting that individuals who had sent deferred 
action requests to USCIS after August 7 were not under imminent 
threat of removal.
    It is my understanding that none of the deferred action 
individuals had been targeted for deportation, and in a letter 
sent to the committee on September 19, the chairman notes, it 
is returning to the deferred action process that was in place 
on August 6.
    So, for better or worse, no one is being treated any 
differently than they were on August 6. I think what we have 
here is a question about how to have the right policy.
    Each and every one of us have sympathy for anyone who is 
sick living in uncertainty. But we need real solutions.
    No one here, no one in the administration, wants anyone to 
not be able to get treatment or be treated unfairly or to live 
in uncertainty.
    But we have got to deal with the real world where we have 
got people here who lose status and then we have got to figure 
out what to do with that.
    Perpetuating a stay here over your visa and beg for 
intermittent two-year deferrals that are not really rooted in 
law and seek deferred action from those who don't actually 
prosecute and then actually leave them in additional limbo, 
that is not a good policy.
    Yet, that is the existing policy. If Congress wants a 
different visa class or otherwise to solve the problem, it 
should act. This is something I beat the drum on many issues.
    Congress wants to solve problems, Congress should act. 
Congress has the power to make policies. This isn't about 
``gotcha'' politics. We should all seek a system rooted in 
sound policy.
    I would remind my Democratic colleagues that this reality 
was at the root of the SCOTUS decision regarding the so-called 
DAPA class and in the current debate on the DACA class.
    With respect to approving status for people who overstay 
their existing visas, we have deferred action which, by 
definition, is prosecutorial discretion. That is what we are 
talking about here.
    We can't defer--we can't give a status to a group of people 
in the name of prosecutorial discretion.
    For perspective, this hearing involves a situation that 
affects, roughly, 900 current people and the policy is 
currently at the status quo ante.
    But let us think about what is actually happening right 
now. Border Patrol agents along the southern border encountered 
a million people trying to illegally enter the country this 
year. A million.
    Today we are talking about 900 and it is very important for 
each of those 900. But that number--the specific number is 
977,509. OK. Plus inadmissibles, there were 1.148 million 
enforcement actions by CBP.
    So, just putting in perspective the numbers, we are talking 
about 900 versus 851,000 that we are talking about here in 
    We are not talking in this hearing about the 224 pounds of 
fentanyl seized crossing our southern border this last fiscal 
year, and one little sugar packet of fentanyl would kill 
everybody in this room and we have got 224 pounds of it that 
come across our border.
    We are not having a hearing about the 1,700 inbound weapons 
CBP intercepted this year, up 300 percent from last year.
    We are not talking about the fact that CBP apprehended 
1,200 gang members from 20 different gangs. There are, roughly, 
576,000 immigrant fugitives in the United States today--
    Over half a million people who have been given a final 
order of removal by a judge and they are still wandering around 
the United States.
    According to ICE, they have seen a double digit drop in 
criminal arrests this year due to the volume of personnel and 
resources they have had to deploy to the border.
    This is where we have interior enforcement and we have real 
problems. Our border is porous and vulnerable to crimes by 
cartels and traffickers who are taking advantage of migrants.
    Traffickers abuse children as props for asylum. There were 
473,000 family units this year. This is the highest on record.
    We could discuss the 5,400 recorded cases of fraud from 
alleged family units and the children who are being exploited 
as a golden ticket to come to the United States.
    Let us talk about those migrants getting abused today on 
the journey through Mexico. We had 50,000 apprehensions in 
    We are talking about the numbers being down. Why? Because 
they were down from over 100,000 in May.
    Yet, that is the reality of what is happening on our border 
right now today. But we are not having hearings on that.
    We are having a hearing on something that has no 
discernible difference from where it was on August 6. I 
understand the concern of the chairman about some of the 
questions about the policies.
    But we are talking about something that has been largely 
addressed with respect to the concern that the majority has, 
and if we want to have a conversation about the policy, let us 
sit around a round table and figure out what we can do to have 
legislation that might address some of those concerns.
    Let us talk about the other things we could do--fixing 
asylum, catch and release Flores, TBPRA. All these are things 
that we could fix on one piece of paper in one day if we had 
the will to do it.
    We could fund ICE and Border Patrol properly. We could fund 
ICE at the level that President Obama asked for, upwards of a 
billion dollars that he asked for to deal with the 
unaccompanied alien children that were coming in 2014 to 2015.
    Yet, we only got $200 billion for ICE in June after 
demanding to get a supplemental vote and that $200 billion was 
constrained and not able to be used.
    This hearing today is about an issue that affects 900 
people for whom we have great sympathy and we ought to address 
the issue.
    But on an average day this year, that is three times less 
than the total number of crossing during one Border Patrol 
shift. Think about that. One Border Patrol shift.
    Today, CBP apprehends, roughly, 1,400 migrants a day. On an 
average day in May that number was 5,000.
    If the chairman wants to address the facts that these 
deferrals are not actual programs and are prosecutorial 
discretion, let us discuss that and figure out a system that 
will work and that we can work together to try to figure that 
    But I would love to do that in the context of our very, 
very broken immigration system and border security.
    Thank you, Mr. Chairman.
    Mr. Raskin. Mr. Roy, thank you for your very thoughtful 
remarks and, as always, I am very eager to work with you and 
all of our colleagues on comprehensive immigration reform.
    But you correctly delineate what the object of today's 
hearing is, which is to focus on this question and we are going 
to do it and I think--I am very hopeful we will get the answers 
that we need and we can move on to work on other stuff.
    There are several members of the committee who have come 
today both out of their interest in the subject but also in a 
tribute to Chairman Cummings.
    So, without objection, I would waive them on. Mr. Rouda and 
Mr. Cooper and Mr. DeSaulnier are members of the broader 
committee who are joining those of us on the subcommittee, 
including Ms. Kelly and Mr. Gomez, who have arrived over here.
    Also thank you, Mr. Roy, for telling us about Mr. Hice's 
father. I was not aware of that. Our prayers and our thoughts 
go out to him. It seems like we are just going to too many 
funerals these days. But we are sending him the strength and 
    All right. With that, I want to formally welcome our 
witnesses today: Ken Cuccinelli, who is the acting director of 
the U.S. Citizenship and Immigration Services at Homeland 
Security--welcome, Mr. Cuccinelli--and Matthew Albence, who is 
the acting director of the U.S. Immigration and Customs 
Enforcement, ICE, at the U.S. Department of Homeland Security.
    If the witnesses would kindly rise and raise their right 
hands, I will being by swearing you in.
    [Witnesses were sworn.]
    Mr. Raskin. Then let the record show the witnesses have 
answered in the affirmative.
    Thank you. You may be seated. Please speak directly into 
the microphones. Without objection, any written statements you 
brought with you or that you decide to provide will be made 
part of our record.
    With that, Mr. Cuccinelli, you are now recognized to give 
an oral presentation of your testimony.


    Mr. Cuccinelli. Good morning, Chairman Raskin, Ranking 
Member Roy, and distinguished members of the subcommittee.
    First, I want to express my condolences on the passing of 
Chairman Cummings and I appreciate his dedication to 
representing the people of Maryland's 7th District for 23 
    My name is Ken Cuccinelli. I am the acting director of the 
United States Citizenship and Immigration Services. USCIS 
administers the Nation's lawful immigration system.
    The agency's mission is to safeguard the integrity and 
promise of that system by efficiently and fairly adjudicating 
requests for immigration benefits while protecting Americans, 
securing the homeland, and honoring our values.
    I can see--I can tell you that I am extremely proud of the 
work and professionalism I see every day by the employees at 
USCIS in service to America.
    In Fiscal Year 2019 just ended, USCIS achieved many of 
President Trump's goals to make our immigration system work 
better for America.
    As an agency, we have tirelessly worked hand in hand with 
our fellow DHS components to answer President Trump's call to 
address the ongoing crisis at our southern border.
    We have taken significant steps to mitigate the loopholes 
in our asylum system, particularly in the absence of 
congressional action, combating fraudulent and frivolous 
claims, and strengthening the protections we have in place to 
preserve humanitarian assistance for those truly eligible for 
    The workload USCIS faces each year is staggering. In Fiscal 
Year 2019, we adjudicated nearly 7 million requests for 
immigration benefits, a 14 percent increase over the previous 
fiscal year, and that is with only a two percent increase in 
fee income, demonstrating improved cost effectiveness even as 
we face many challenges.
    This workload represents the full spectrum of immigration 
benefits that our law provide to those seeking to come to the 
United States temporarily or permanently, and those who seek to 
become citizens of this Nation.
    Last year, USCIS naturalized 833,000 new U.S. citizens, the 
most in more than a decade.
    Deferred action is the exercise of discretion to defer 
removal action on a case-by-case basis against an alien for a 
certain period of time. Deferred action is not an immigration 
benefit or specific form of relief. It does not provide lawful 
immigration status and does not excuse any past or future 
periods of unlawful presence.
    Importantly, deferred action can be terminated at any time 
at the agency's discretion. Historically, USCIS does not 
receive many nonmilitary non-DACA deferred action requests.
    For the past few years, USCIS has received approximately a 
thousand such requests annually. Some of these requests are for 
family support or medical issues.
    This has frequently been incorrectly reported or 
mischaracterized by the media and some in Congress as a medical 
deferred action program.
    To be clear, DHS does not and has never administered a 
medical deferred action program. Only Congress can provide 
permanent immigration relief to an entire class of aliens.
    Deferred action is a practice in which the secretary 
exercises enforcement discretion to notify an alien of the 
agency's decision to forebear from seeking the alien's removal 
for a designated period of time.
    However, USCIS does not enforce orders of removal. Thus, to 
better align USCIS with its mission of administering our 
Nation's lawful immigration system, on August 7, USCIS 
determined that its field offices would no longer accept non-
military requests for deferred action.
    This redirection of agency resources did not affect DACA, 
which remains in effect according to the nationwide injunction 
while cases go through the court system.
    It also did not affect other deferred action requests 
processed at USCIS service centers under statute or other 
policies, regulations, or court orders.
    On September 2, USCIS announced that the agency would 
reopen previously pending non-military deferred action 
    Further, on September 18, Acting Secretary McAleenan 
directed USCIS to resume consideration of non-military deferred 
action requests on a discretionary case-by-case basis except as 
otherwise required by an applicable statute, regulation, or 
court order.
    The acting secretary further directed USCIS to ensure that 
the procedure for considering and responding to deferred action 
requests is consistent throughout USCIS and that discretionary 
case-by-case deferred action is granted only based on 
compelling facts and circumstances.
    All cases that were denied around August 7, 2019, have now 
been reopened and are being considered pursuant to the acting 
secretary's September 18 directive.
    And that concludes my statement. Thank you.
    Mr. Raskin. Thank you very much.
    Mr. Albence, you are recognized for five minutes.


    Mr. Albence. Good morning, Chairman Raskin, Ranking Member 
Roy, and distinguished members of the subcommittee.
    I also want to express my condolences on the passing of 
Chairman Cummings.
    As you know, on September 11, 2019, ICE testified on this 
matter before this committee. At the time of that hearing, the 
ICE witness, the Acting Executive Associate Director for 
Enforcement and Removal Operations, Tim Robbins, stated that he 
was not aware of anyone at ICE being involved in the decision 
to end the program.
    He further explained that ICE lacks any program or 
mechanics to consider affirmative deferred action requests, but 
described a variety of ways that ICE does utilize its 
discretion as appropriate on a case-by-case basis throughout 
the immigration enforcement process.
    Contrary to claims made by this committee and the media 
about the willingness to answer questions during that hearing, 
the only questions our witness declined to answer regarding--
regarded--possible future actions being considered by the 
acting secretary of Homeland Security and questions relating to 
internal USCIS issues of which he had no knowledge.
    And as the committee is aware, within a few days of the 
hearing, Acting Secretary McAleenan directed USCIS to resume 
consideration of nonmilitary deferred action requests on a 
discretionary case-by-case basis.
    In addition to our previous testimony, ICE provided several 
responses to several follow-up questions from that hearing to 
the committee in a letter on September 24, 2019.
    In another letter dated October 15, 2019, DHS further 
clarified that ICE had no part in USCIS's previous decision. 
So, even though ICE's discretionary abilities are not at issue 
here today and as USCIS has resumed consideration of these 
requests--a process in which ICE is not involved--I am here 
today and prepared to answer questions you may have regarding 
ICE's role or, more specifically, lack thereof in this matter.
    However, I want to clearly state that I believe this 
continued repetition of inaccurate information does a 
tremendous disservice to the dedicated professional men and 
women of ICE, and just as importantly, does a disservice to the 
American public, who deserve transparency and facts regarding 
the operation of their government.
    In a day and age when individuals are committing violent 
acts on ICE offices and making threats against ICE officers, 
agents, employees, and their families, to continue to suggest 
that ICE had some role in this process is not only inaccurate, 
as confirmed by the information already provided to this 
committee, but also irresponsible.
    So, I am here today to defend the men and women of ICE and 
to, once again, set the record straight.
    I look forward to your questions.
    Mr. Raskin. Thank you much for your testimony, both of you, 
and at this point, having permitted the several members to join 
the subcommittee on the dais who wanted to be with us today--
Messrs. Rouda, Cooper, and DeSaulnier--we will move to the 
five-minute questioning portion and I will recognize myself for 
five minutes first.
    Mr. Cuccinelli, threatening to deport sick kids was an 
appalling thing and it was public revulsion at this prospect 
which assembled us in our first hearing on it, and we were very 
glad that the administration reversed course and decided not to 
pursue that policy.
    But I want to ask you, what exactly is the policy in place 
for processing these requests now? I understand this compelling 
facts and circumstances standard that has been enunciated.
    Do we--are you considering being in the country for 
purposes of receiving necessary medical treatment to be a 
compelling fact and circumstance?
    Mr. Cuccinelli. Mr. Chairman, the acting secretary returned 
us, essentially, to the process we were in before August 7 and 
I would note that there is no program. That is part of the 
challenge here.
    This is about withholding action, not undertaking a formal 
process. It is about withholding action, in fact, and the--you 
saw what the acting secretary wrote with respect to his phrase 
compelling facts and circumstances. That is the only what I 
would call substantive commentary that has been distributed to 
our work force in terms of reopening these cases and how to 
process them. Otherwise, everything has continued as it was 
    Mr. Raskin. OK. So, as I understand it, there were at least 
424 families whose deferred action requests were pending on 
August 7. They were denied.
    That is when they were told to--that if they didn't leave 
the country they should report for possible deportation. But 
then they were automatically reopened after the reversal of the 
    Can you tell me how many of those requests of those 424 
families have been approved at this point?
    Mr. Cuccinelli. I can't relate to the specific 424 and 
those were ones given notice around August 7. There were over 
700 cases pending at that time.
    But we have completed as of earlier this week and since the 
reopening 41 cases was the last number I heard at the beginning 
of the week. But I have no----
    Mr. Raskin. Forty-one cases where people were granted----
    Mr. Cuccinelli. No. That is where I was going, Mr.----
    Mr. Raskin. Oh.
    Mr. Cuccinelli. I have no idea whether those 41--how they 
relate to the 424 who got--who were among those who got notices 
on August 7.
    Mr. Raskin. OK. I got to say this is an occasion for some 
frustration because we requested a lot of documents on this and 
I think we received one document, which was, basically, the 
statement that you had received about compelling facts and 
    So, we don't know what is going on there but we are cheered 
that there was a formal reversal of the policy. But--and I 
understand that there is no formal program but there was a 
policy of allowing people in this situation to stay in the 
    Then it appeared there was a reversal of that policy and 
that we were going to summon these people essentially for 
deportation proceedings.
    Then there was congressional and public outrage I think of 
a bipartisan character. That policy was reversed.
    But we want to make sure that what was going to take place 
on a sweeping and categorical level is not taking place at a 
less visible ad hoc level. We want to make sure that the prior 
policy really is reinstituted.
    So, is that your sense of what is going to happen with 
these 424 people? I mean, do we have to have a hearing on each 
of these cases? I guess that is what I am asking you.
    Mr. Cuccinelli. Well, of course, we don't testify about 
individual cases and--but I understand that you would like to 
see more written material.
    But we gave you, in response to one of the letters, the 
entire universe of what is written on this topic and it didn't 
even cover one side of one page because this is a pure process 
question in terms of how USCIS handles this internally.
    You know, for other things, standards are laid out. They 
are discussed. They are--but we don't have a law here. We don't 
have a regulation. This isn't taking action. It is withholding 
    So, beyond the secretary's statement about grants only on 
compelling facts and circumstances, which I can't even compare 
to anything before August 7 because no equivalent existed 
before August 7, that is the only--that is the only item that 
has been added to the--to the materials or information that an 
adjudicating officer might reference.
    Mr. Raskin. And the way I would treat that is that the 
policy before was that cases of people being in the country to 
receive medical treatment established a compelling reason to be 
here and these are all compelling facts and circumstances.
    That is certainly the way that I would understand it and it 
is the way that I am interpreting. I think I speak for a lot of 
my colleagues in saying that we would not want this to be the 
occasion for the creation of a new bureaucratic narrowing of 
the possibilities for people to be in the country to continue 
the medical treatment that they were here to get.
    Let me--well, my time is up and I am going to go ahead and 
recognize Mrs. Maloney. But we will come back around because we 
definitely have some more details that we want to get out of 
this situation. Thank you.
    Mrs. Maloney, you are recognized or five minutes.
    Oh. OK. Then I will recognize Mr. Roy.
    OK. And we will pass it down.
    Mr. Keller. Thank you, Mr. Chairman, and thank you, 
gentlemen, for being here today.
    It is certainly a sensitive issue when we are talking about 
individuals that have medical problems and it is always--we 
always want to make sure that we handle things properly.
    So, I just want to make sure that, for the record, 
everything is straight. We are talking about deferred action, 
which means we are deferring taking action against people that 
may or may not be in the country here or overstaying a visa or 
something like that.
    Is that correct?
    Mr. Cuccinelli. Well, they are here illegally----
    Mr. Keller. OK.
    Mr. Cuccinelli [continuing]. Thus, the request for the 
deferred action.
    Mr. Keller. OK. So, it is a request for deferred action. 
And the rules currently under the law, you are just enforcing 
the law that is currently on the books?
    Mr. Cuccinelli. That is correct.
    Mr. Keller. OK. You are not making--you are not making law 
or anything else? You are just enforcing what is on the books?
    Mr. Cuccinelli. That is correct.
    Mr. Keller. So, when people received letters that said, if 
you are not in the country legally you need--you need to show 
up or you may--did the letter say may be? Action may be taken?
    Mr. Cuccinelli. That is right.
    Mr. Keller. So, the word ``may'' was in there?
    Mr. Cuccinelli. It is.
    Mr. Keller. OK. So, it wasn't saying this was actually 
going to happen; it was going to say this may happen?
    Mr. Cuccinelli. Correct. At the end of that time period, 
and they were--they were form letters adopted from other usage 
in the agency, is pretty standard language, and at the end of 
that time period adjudicating officers would then revisit the 
case about issuing an NTA or not.
    Mr. Keller. So, in other words, if I was a person that 
would have gotten one of those letters, I could have shown up 
and made my case and I wouldn't necessarily have been forced to 
leave the country?
    Mr. Cuccinelli. Well, I mean, it could be the case that the 
NTA is not issued. But, you know, we--of course, we never 
really reached that point in this process with the--with the 
initial August 7 shutdown of this process because it was 
reopened less than a month later.
    Mr. Keller. OK. But, again, I don't think it was any 
person's intent to make people leave that had a medical problem 
as opposed to making sure that the people that were here 
actually had a decision made to let them stay by the U.S. 
    Mr. Cuccinelli. Well, it would have taken USCIS out of the 
prosecutorial role of exercising prosecutorial discretion, 
which is what deferred action is.
    It would not have replaced it with anything else and it 
is--and, you know, had it rolled forward then it would have 
been considered in the normal course following on those 
    Mr. Keller. OK. So, in other words, what really needs to 
happen is we, as Congress, should set up some kind of law. I 
mean, I keep hearing program and everything else.
    It is not really a program. It is just the fact that we are 
not taking action on something that we should be.
    Mr. Cuccinelli. That is absolutely correct and, I mean, 
there is an equivalent in the State Department context. There 
is B-2 visa.
    People can come visit temporarily for medical purposes. 
They have a whole process set up for that. It is temporary, and 
that is established pursuant to law passed by Congress.
    What we are talking about today is not--is not based on 
law. It is not based on regulation. It is--it is much like the 
executive creating law by deciding how to use deferred action, 
an inherent prosecutorial--a prosecutorial authority to achieve 
a goal, and if there is a goal in which Congress agrees should 
be achieved and they pass a law to it, I promise you we will 
implement that law.
    Mr. Keller. OK. I think that is an important distinction, 
that you are not trying to do anything other than enforce the 
laws of our Nation and if we, as Congress, think that that law 
needs to be changed and we make the changes, you will abide by 
the changes.
    Mr. Cuccinelli. Absolutely. Absolutely.
    Mr. Keller. OK. Again, when we are doing a discretionary 
case-by-case scenario, I think that doesn't lead to any 
certainty for the people trying to enforce our law or for the 
people that need to come here and get treatment.
    Mr. Cuccinelli. Well, it is not--even deferred action is 
not durable. It can be revoked at any time, and it isn't an 
immigration status. So, it is--because it doesn't have a legal 
foundation it is a very uncertain course for people to be on.
    Mr. Keller. I mean, deferred action--I mean, we can defer 
many things and it doesn't--it doesn't necessarily make them 
legal, and I guess that is the point I want to say.
    I could--we could decide we want to not enforce IRS law and 
not collect taxes from a certain amount of people and defer 
their taxes.
    That doesn't mean they still don't owe them. It doesn't 
mean they are following the law. And I guess the point I would 
say for this committee rather than--rather than replowing the 
ground that we have already plowed--the decision has been 
changed--I would suggest that we give the administration and 
the individuals trying to enforce our law the tools they need 
and [that] Congress act on this rather than wasting time on 
other things.
    I yield back. Thank you.
    Mr. Raskin. Thank you, Mr. Keller.
    I now recognize Ms. Kelly, the gentlelady from Illinois, 
for her five minutes of questioning.
    Ms. Kelly. Thank you, Mr. Chair.
    Ms. Albence, I want to understand ICE's role in this 
process. USCIS didn't notify the public about this disastrous 
decision they made in August.
    To add to the confusion, once the public found out through 
media reports, USCIS claimed that ICE would be handling medical 
deferred action requests, going forward.
    At the time, ICE said it was never informed of this hand-
off. According to press reports, ICE was, quoted, ``blindsided 
by the move from USCIS'' and ICE was, quote, ``scrambling to 
    Mr. Albence, was that true? Were you blindsided?
    Mr. Albence. Yes. As we have put in writing back to the 
committee, there were some discussions over the years with 
regard to this process. But the ultimate decision and anything 
contemporaneous with that decision was made by CIS.
    Ms. Kelly. And when and how did you find out about the 
    Mr. Albence. I want to say that my chief of staff for 
public affairs brought it to my attention.
    Ms. Kelly. And when was that?
    Mr. Albence. I don't have the exact date. It is going to be 
when it hit the media. It would have been the day that we put 
out that statement. So, I think that maybe the 25 or 27 of 
August. But I am not exactly sure.
    Ms. Kelly. So, that was the first time you learned that 
USCIS was telling the press that ICE would be taking over 
deferring action requests?
    Mr. Albence. I believe so, yes.
    Ms. Kelly. OK.
    We know from USCIS's written responses to the subcommittee 
on September 24 that the agency has been discussing ending 
deferred action since October 2017.
    In those same responses, when asked about collaboration 
with ICE, USCIS wrote, ``We can confirm that discussions did 
take place prior to August 7, 2019.'' So, which is it? Was ICE 
blindsided by this decision or had ICE been involved in 
planning this for months or even years?
    Mr. Albence. Well, without getting too far into the 
deliberative process, as I mentioned, there were discussions 
that were held under prior leadership of both agencies with 
regard to this process but that there had--nothing had been 
settled on that or agreements with regard to how that would go 
forward or be implemented, and those, largely, fell off the map 
until this reappeared when CIS moved forward on their own.
    Ms. Kelly. So, you were aware of prior discussions. Was 
anyone at ICE aware of the exact discussions?
    Mr. Albence. Again, without getting into the deliberative 
process, we discussed lots of different programs and issues. 
There were discussions as to whether or not this would be a 
good idea.
    These were not discussions or decisions that we were 
involved with, and then, as I mentioned, it kind of just fell 
off the map.
    There was nothing recent with regard to those type of 
    Ms. Kelly. OK. Do you want ICE to assume responsibility for 
deferred action from USCIS?
    Mr. Albence. So, I think the secretary has already spoken 
to that. But to that comment and to, as our witness testified a 
few weeks ago, ICE does not have a process or a mechanism to 
affirmatively adjudicate or provide any sort of deferred 
    ICE exercises prosecutorial discretion throughout the 
enforcement continuum with regard to who to arrest, who to 
detain, and then, ultimately, if a judge orders somebody 
removed, who actually gets removed.
    So, we do have a process on the back end of that--of that 
where somebody could file for a stay of removal if so ordered 
by an immigration judge. But that is where our prosecutorial 
discretion lies, and rightly so.
    Ms. Kelly. Have you discussed this with the acting 
    Mr. Albence. We may have had one----
    Ms. Kelly. Or with USCIS?
    Mr. Albence. I mean, I have spoken with the acting 
director, certainly, after the--after the fact. I probably was 
in one meeting with the acting secretary.
    But, largely, we have been removed from this process since 
it went forward because it was not something that ICE was 
involved in.
    Ms. Kelly. And what are your recommendations?
    Mr. Albence. My recommendations are that it remains with 
the agency that is better equipped to adjudicate applications.
    Ms. Kelly. OK. At any point in time has ICE considered 
implementing a deferred action process similar to the one at 
USCIS where an immigrant can proactively seek relief before 
entering deportation proceedings?
    Mr. Albence. Not a--not a proactive program. We will 
utilize deferred action in certain instances, for example, if 
there is a witness that we need in a criminal investigation or 
somebody that is cooperating with a criminal investigation that 
we are working or that another law enforcement agency has 
requested us to.
    But, again, it is only in conjunction with our law 
enforcement mission.
    Ms. Kelly. And is ICE playing any role in the USCIS review 
and updating of this policy that----
    Mr. Albence. No.
    Ms. Kelly [continuing]. The acting secretary ordered?
    Mr. Albence. No, ma'am.
    Ms. Kelly. Do you agree with the decision to order 
critically ill children to leave the country within three days 
or face deportation?
    Mr. Albence. OK. I don't think that is what the letter 
said. What the letter required them to do is respond and I 
deferred it to Mr. Cuccinelli.
    But the letter required them to respond within 33 days to 
make a determination as to whether or not a notice to appear 
would be filed.
    A notice to appear is only the beginning part of that 
process. That begins the immigration court process. Ultimately, 
nobody can be removed from this country absent a removal order 
from an immigration judge.
    So, that is where ICE steps in at the back end of that 
process were somebody to be--have their case evaluated on a 
case-by-case basis if somebody files a stay.
    But if somebody has a significant humanitarian concern, a 
medical issue to that sort, that is when ICE can execute its 
prosecutorial--excuse me, exercise prosecutorial discretion and 
grant that stay.
    Ms. Kelly. I know I am past my time, but here is a letter 
that says within 33 days of the date. So, not what you are 
    Mr. Albence. No, it says 33 days with the date, report to 
CIS for determination as to whether or not a notice to appear 
will be issued.
    That notice to appear is not a removal order. That notice 
to appear is what starts the immigration court process.
    Again, ultimately, only an immigration judge except in 
certain circumstances that would not be relevant here have the 
ability to issue a ruling.
    Mr. Raskin. Thank you, Mr. Albence.
    The gentlelady's time has expired. But I know this is going 
to become an issue. So, I do want to read that sentence just so 
we are all on the same page here.
    This was sent to the--in this case, Maria Isabel Buesa 
Barrera, but it was the exact same letter that went out to 
hundreds of people. This is what caused the controversy and the 
crisis in the first place.
    ``You are not authorized to remain in the United States. If 
you fail to depart the United States within 33 days of the date 
of this letter, USCIS may issue you a notice to appear and 
commence removal proceedings against you with the immigration 
court. This may result in your being removed from the United 
States and found ineligible for a future visa or other U.S. 
immigration benefits.''
    So, that is what was sent to critically ill children. That 
is what caused the crisis. Again, we are delighted that there 
was a decision to reverse this new policy with Mr. Cuccinelli.
    There was no program in place but there was a policy of not 
pursuing these. I think for the reason that it was implicit in 
something that our colleague, Mr. Roy, said, which is this is a 
very tiny number of people compared to the whole universe of 
people who are actual immigrants to the country, and most of 
them are here precisely to get medical treatment.
    So, I am going to--Mr. Roy has passed this round and I am 
going to recognize Mrs. Maloney for her five minutes.
    Mrs. Maloney. I want to thank the chairman for focusing on 
this important issue, and this is one of several hearings that 
he has initiated on the subject, and I would like to ask 
Director Cuccinelli about the standards to be applied to 
deferred action programs.
    I want to make sure that he understands that to many 
families this is, literally, a life and death issue. Many 
people, some on the other side of the aisle, have indicated 
that they are not here legally but many are here legally and 
they are under deferred action, yet they are being threatened 
with deportation.
    Sitting in the front row behind you is Nicholas Espinoza, 
and he travelled here today to try to save his daughter's life. 
She is seven years old and her name is Julia, and there she is, 
Julia, fighting for her life.
    She is in a special treatment program at Seattle's 
Children's Hospital because she has had most of her lower 
intestine removed and needs a full team of doctors to keep her 
    Julia is a U.S. citizen but her parents are not. Her mother 
is her nurse. Deferred action has allowed Julia's mom to stay 
in this country but her deferral expired in September. Her 
father helps support her, too.
    His deferral expired three days ago and they have both 
applied for renewal this June but still have not heard about 
their cases. It has not been decided, and Julia's doctors say 
that if she leaves this country and goes back to her home 
country she will die.
    This gives her parents three options. I would say she only 
has three: stay in the United States with their daughter, even 
though their deferrals have expired; leave the country and 
leave their daughter behind without any family to take care of 
her; or take their daughter home, at which point her doctors 
say she would surely die.
    So, I want to politely and respectfully ask you, Mr. 
Cuccinelli, to look at Mr. Espinoza. He is right behind you.
    Mr. Espinoza, raise your hand so he can see you. Look him 
straight in the eye and, as a professional, ask him which of 
those options he should choose.
    Mr. Cuccinelli. Madam Chairman, Dan Renaud was representing 
USCIS at the last hearing and one of the things he said that I 
think humanizes the agency--and I don't mean my, I mean the 
employees of the agency's position--in many cases is that the 
hardest cases we have to deal with are the kinds of ones we are 
talking about today.
    They are cases where it is possible that the law calls for 
a very sympathetic person, or family in this case----
    Mrs. Maloney. Reclaiming my time, because I don't have much 
    We had many people here in our hearings that were brought 
to this country by American scientists because they wanted to 
study their disease so that we could possibly save their lives 
and have medical research that could save the lives of many 
other people.
    I feel it is a very human decision, but I think it is 
terribly wrong to deport someone who has come here legally--in 
this case, she is here legally. But I would like to ask you 
what would you decide if it was your child, if you are talking 
about humanizing the situation?
    Mr. Cuccinelli. Any parent does whatever they can to care 
for their children and----
    Mrs. Maloney. Well, then getting back to the specifics, can 
you say here today that Julia's parents will not be penalized 
for staying in the U.S. while they fight for the renewal of 
their request to stay here, which is pending?
    In other words, if you put a human face on it, this policy 
has a devastating effect on people and if this administration 
claims that it has been reversed, they need to tell people 
clearly in writing to all the professionals in the government 
and to the people that are here exactly what this means in real 
time and what their real possibilities are.
    I find this language discretionary--case-by-case basis. 
What does this mean? Can you get back in writing to me how does 
USCIS define it?
    My time is up, but I would like to see in writing how you 
define this exactly for the purpose of----
    Mr. Cuccinelli. We do not. That is the answer. I know you 
all don't like that answer. This is not an action, a program, 
or policy. It is the withholding of action.
    Madam Chairman, you just described what might make an 
excellent individual standard in a piece of legislation. People 
coming here and doing scientific studies and getting medical 
care sounds to me like it would make an excellent piece of 
legislation. We don't have that. We don't have that.
    Mrs. Maloney. Well, simply put--simply put, one last 
    Will we be applying exactly the same standard to deferred 
action, going forward, as the agency used in the past? Yes or 
    Mr. Cuccinelli. We did not explain--we did not pose any 
standards other than the case-by-case decision, which then goes 
up functionally to four regional directors who are career 
employees and they talk to one another primarily to make sure 
that they are implementing this process consistently across the 
    But there are no standards we have given them other than 
what you see here from the acting secretary of the language of 
compelling facts and circumstances because we don't have a 
legal basis to do so. We would welcome that from you all but we 
do not----
    Mrs. Maloney. Well, have you written guidance?
    Mr. Raskin. The gentlelady's----
    Mrs. Maloney. Have you provided training?
    I yield back.
    Mr. Raskin. Thank you. The gentlelady's time has expired. 
Thank you for your answer to that.
    There was one question embedded in the gentlelady's 
thoughtful line of questions, which was what would your 
recommendation be to people in this situation. I heard you to 
say that parents will do--that all parents, legitimately, will 
do whatever they can for their kids and I take that to mean 
that they should continue to stay and have their children 
    Mr. Cuccinelli. Well, of course, all of you know I can 
neither give them legal advice nor will we sit here at a table 
in front of you and decide individual cases, accepting full 
well how sympathetic the case is, which is exactly why we use 
the kind of compelling facts and circumstances language that 
the secretary did.
    But if you are looking for me to decide a case here, I 
cannot do that, and I believe you all know I cannot do that.
    Mr. Raskin. OK. Thank you.
    I am now pleased to recognize our distinguished colleague 
from Massachusetts, Ms. Pressley, for her five minutes of 
    Ms. Pressley. Thank you very much, Mr. Chairman.
    This hearing has been a long time coming, and there was 
some commentary from my colleague across the aisle saying that 
we have better things to work on and should not be wasting our 
    I never want us to lose sight of the impact on real 
people's lives when we are talking about policy and that is, in 
fact, why the American people sent us here. So, we are not 
wasting our time.
    Gentlemen, it is disappointing that it took the threats of 
subpoenas to bring you before our committee today. In a moment 
I will turn more to your actions but, first, I want to center 
the families that have been impacted by this egregious policy 
shift, families like my constituents, the Sanchez family, and 
Serena Ibinez and her mom, Conchita. I told them when I met 
them that I would fight for their children as if they were my 
own and I intend to honor that.
    Sixteen-year-old Jonathan Braley came before this committee 
and shared his story. He spoke of how cystic fibrosis has 
ravaged his body and, in fact, the tragic death of his younger 
sister in Honduras, who suffered similarly.
    The reckless actions of your agency that have put his 
variability to receive life-preserving medical care at risk are 
just unconscionable.
    For 83 days, Mr. Chairman--nearly three months now--we have 
been demanding answers out of this administration.
    Mr. Cuccinelli, you testified that you understand that we 
want more paperwork but you simply don't have it. None of us 
here--we are in government--we don't want more paperwork.
    But what we do want are real answers and justice for these 
families and a peace of mind, and they deserve that and their 
children deserve that.
    So, for nearly three months we have been demanding answers 
out of this administration for its horrendous and calloused 
efforts to deport our critically ill immigrant neighbors and 
their families.
    And while I am relieved that the policy has been reversed, 
these families and the American people deserve answers. They 
deserve the certainty that they will be able to remain in this 
    So, I would like to thank the brave families like these and 
countless others who, despite the traumatic and imminent fear 
of deportation and having to fight a life-threatening illness, 
stepped up and spoke out to shine a light on this injustice as 
well as the attorneys and the advocacy organizations.
    I would also--I would like to request unanimous consent to 
include statements for the record from the Lawyers Community 
for Civil Rights in Boston as well as the American Immigrant 
Lawyers Association.
    Mr. Raskin. Without objection, they will be entered into 
the record.
    Ms. Pressley. Thank you.
    Now, gentlemen, your agencies have still failed to turn 
over a single document in response to our letter, and even in 
response to the subpoenas that our forever chairman--may he 
rest in power--Elijah Cummings signed in his last official act 
before his transition.
    It is shameful but consistent. So, I hope that you can 
answer the questions that I have.
    USCIS and ICE have continuously refused to identify who 
made the decision to end consideration of deferred action at 
    I can only assume it is because no one wants to put their 
name on such a disastrous, cruel, and un-American policy, and 
the government officials who made that decision ought to be 
held to account.
    Mr. Cuccinelli, I remind you that you are under oath before 
us today. Who made the decision that USCIS would stop accepting 
and processing deferred action requests on August 7?
    Mr. Cuccinelli. That was my decision as the acting 
    Ms. Pressley. And you stand behind that decision?
    Mr. Cuccinelli. That decision has been reversed.
    Ms. Pressley. The reversal, yes. OK.
    But today, those families have received no notification 
confirming the reversal of that. Can you tell me why that is?
    Mr. Cuccinelli. I think they have. We are a paper agency 
when it comes to matters like this. So, when case are closed, 
literally, a physical file is wrapped up and mailed to a 
storage facility. So, when we reopen cases, we literally have 
    Ms. Pressley. I am sorry. Sorry, I am running out of time. 
I apologize. I have to----
    Mr. Cuccinelli. I am just trying to answer the question.
    Ms. Pressley. No, I apologize, sir. I just have to reclaim 
my time.
    So, Mr. Cuccinelli, would it be fair to say then that you 
are not aware of some of the most consequential decisions and 
policies coming out of your agency, since initially you said 
you did not know that it was coming?
    Mr. Cuccinelli. I did not say that today.
    Ms. Pressley. Earlier today in your testimony. OK.
    Yes or no, Mr. Cuccinelli, did anyone at the White House 
play a role in this decision?
    Mr. Cuccinelli. This was an agency decision solely and 
other than discussion within the Department of Homeland 
    Ms. Pressley. So, reclaiming--I am sorry.
    Did Stephen Miller play a role in this decision or not?
    Mr. Cuccinelli. So, I am not going to get into specific 
commentary back and forth. But I made this decision. The only 
discussions had over the course of the----
    Ms. Pressley. So, I am sorry. Again, for the record----
    Mr. Cuccinelli [continuing]. Over the--yes, this is for the 
    Ms. Pressley. Mr. Cuccinelli, I understand----
    Mr. Cuccinelli. And as you noted, I am under oath. So, I 
want to be completely truthful and I can't do that if I can't 
be completely----
    Ms. Pressley. Yes, you are under oath. So, I--so then this 
is very easy to answer. So, yes or no----
    Mr. Cuccinelli. I am not going to just answer the way you 
want me to answer. I am going to give you an honest and 
accurate answer.
    Ms. Pressley. No. No. I am asking you to answer yes or no. 
Was the president involved in this decision?
    Mr. Cuccinelli. We cannot, as you well know, talk about 
content of discussions with the White House.
    Ms. Pressley. I am sorry, but you just said that you made 
the decision.
    Mr. Cuccinelli. Yes.
    Ms. Pressley. OK. So, was the president involved, yes or 
no? That should be simple.
    Mr. Cuccinelli. I made this decision alone.
    Ms. Pressley. Was Stephen Miller----
    Mr. Raskin. The gentlelady's time has expired. Thank you 
very much.
    And we will go now to Mrs. Miller.
    Mrs. Miller. Thank you, Chairman Raskin.
    Mr. Raskin. Mrs. Miller, you are recognized for five 
    Mrs. Miller. Thank you. We have a crisis on our border. 
This year, to date, we have had over 850,000 total 
apprehensions on our southern border. I commend and thank 
President Trump for stepping up and taking action, while my 
colleagues across the aisle have refused to appropriately and 
adequately address this crisis.
    During our last hearing on this topic, I posed a question 
to Mr. Homan regarding all of the rhetoric surrounding the 
crisis at our southern border, and now I want to propose it--
pose it to you.
    Director Cuccinelli and Director Albence, has all of this 
rhetoric helped move the ball forward on solving our Nation's 
larger immigration issues?
    Mr. Cuccinelli. Madam Congresswoman, I cannot say that that 
is the case. Certainly there is extraordinary public interest 
in this subject, and so you expect a certain amount of rhetoric 
back and forth, but when it gets in the way of constructive 
discussions--and, in fact, it has, to some degree, in the very 
subject we are here talking about, deferred action, which we 
have focused on in the case, in medical cases--but I keep 
hearing reference to medical-deferred action, which does not 
exist, by way of example of inaccuracy, and that doesn't help 
the public discussion. And the hotter the rhetoric gets, the 
harder it is for people to step back and have a constructive 
discussion, even about our disagreements, and how to implement 
our agreements.
    So, you know, the thrust of your question is hard to argue 
with, and I think all of us own some piece of that, but yet at 
USCIS we just keep pressing forward to do the best job we can, 
whatever that environment is.
    Mrs. Miller. Thank you. Mr. Albence?
    Mr. Albence. You are right in stating that we do have a 
border security crisis, both in terms of illegal aliens but 
also in terms of opioids and other contraband that is being 
smuggled into and out of this country. ICE has, and DHS, has, 
frankly, made clear, for many weeks now, that ICE was not 
involved in this process. Yet here I sit, while we have a 
tremendous crisis at the border, tremendous opioid crisis. Last 
year we seized--Mr. Roy, you mentioned several hundred pounds--
we seized 11,700 pounds of fentanyl. We have communities that 
are suffering greatly from the scourge of this drug.
    I am more than willing--and I probably have testified in 
front of Congress more than anybody from ICE within the past 
two to three years--I am more than willing to come and speak 
about anything that my agency does, and I am proud to do so. 
But when I am dragged into an issue that has nothing to do with 
what my agency does, it does take away--research, as I am sure 
you understand, preparation for a hearing, and paperwork, and 
time. I will also say that we did provide our documentation 
with regard to the subpoenas to DHS prior to the deadline that 
was established by this committee.
    Mrs. Miller. Well, as you may know, my district is ground 
zero with the opioid crisis, so it is very important to me. How 
has the strategy proposed by our President helped curb the flow 
of the illicit drugs?
    Mr. Albence. So, we have worked diligently, both 
domestically and internationally, with regard to trying to 
address the opioid crisis. As I mentioned, we seized more 
than--almost 12,000 pounds last year. That is a significant 
increase over the prior year. We initiated more cases into 
narcotics smuggling organizations.
    We have expanded our border enforcement security teams to 
69 this year, focusing a lot on the international mail 
facilities, because we know that a lot of the precursors and 
the material necessary to create these opioids is coming from 
overseas, often from China. So, we have dedicated the resources 
to where we think we will have the most impact. Obviously, if 
Congress gives us more resources we can certainly do more.
    Mrs. Miller. Just as an aside, I even noticed, a year or so 
ago, in my neighborhood, all of a sudden there were all of 
these personnel surrounding a house, waiting on a mail 
delivery. So, it happens everywhere.
    In your opening statement you also mentioned threats and 
violent attacks on ICE officers, personnel, and their families. 
Can you shed some light on that?
    Mr. Albence. It is unfortunate, and I think a lot of the 
danger that is being unnecessarily placed on our personnel 
stems from misinformation or vilification or disgusting terms 
that are used to describe sworn Federal law enforcement 
agencies and other Federal civil servants. We have seen 
instances over the past several months with officers being 
assaulted. We had--thankfully, nobody was hurt, but we had an 
individual shoot into one of our buildings at night, where our 
command center was, where we had officers working on getting 
criminal aliens out of the communities.
    This heightened rhetoric--and I have testified in front of 
Congress before about this--needs to--if Congress does not 
like, or those in Congress do not like the laws that we 
enforce, they have every ability to change them. But we are 
not, as sworn law enforcement officers, in a position to pick 
and choose what laws we should enforce. And I wouldn't think 
Congress would want the Executive branch to override their 
decisions as to the laws they pass.
    Mr. Raskin. Thank you. The gentlelady's time has expired. 
Thank you for your questioning.
    By the way, Mr. Albence, I appreciate very much more answer 
to Mrs. Miller. ICE is here because of answers that were 
provided on September 24 by USCIS, which said that ICE had 
participated in discussions leading up to the original 
decision. We are still trying to get to the bottom of the 
decision, and that is why we are here. We want to make sure 
that we have clarity as to what the policy is and we can figure 
out how this took place.
    With that I go to Mr. Gomez for questioning for five 
    Mr. Gomez. Mr. Chairman, thank you so much, and thank you 
for clarifying that. I was about to do that but you beat me to 
    Mr. Albence, I think Democrats would agree that we want you 
to focus on preventing illegal drugs from entering this 
country, making sure that people that shouldn't be here are not 
here, people who are--and illegal guns. That is why we are 
having this discussion, because all of a sudden instead of 
focusing on that we are--this--there was a focus on kids who 
were terminally ill, right, these chronic illnesses that needed 
to be here. So, that is why we do want you to focus on the 
other stuff.
    You mentioned that there was a discussion, and you couldn't 
get into how--you couldn't get into who was in the discussion, 
involved in the discussion, regarding deferred action. Could 
you tell me how far back the discussion, at least, started?
    Mr. Albence. It would have been--I don't have the exact 
dates, obviously. I wasn't party to it. But it would have been 
three ICE directors ago and one CIS director ago.
    Mr. Gomez. How--it is hard to keep track how many directors 
this Administration has gone through, but how many months?
    Mr. Albence. Pushing probably a year and a half to two 
    Mr. Gomez. OK. So, about when this Administration--2018?
    Mr. Albence. I would say probably 2018.
    Mr. Gomez. 2017. OK.
    Mr. Albence. Not 1917. 1918.
    Mr. Gomez. 1918? OK. Thank you. I just wanted to get 
clarification on that.
    I want to go into, just quickly, into the questions. Mr. 
Cuccinelli, you apparently sent an email to the American 
Immigration Lawyers Association saying, quote, ``USCIS field 
offices are informing the public of the change in person and on 
individual basis,'' end quote. This seems to be the approach 
that has led to panic and confusion, and I believe it was not 
    Mr. Cuccinelli, according to a recent news report, you 
personally decided that it was not necessary to notify the 
public. Is that true?
    Mr. Cuccinelli. Congressman, it is our typical practice, 
when we change a process that doesn't have--that isn't based in 
regulation or law, to not do public notification.
    Mr. Gomez. So, that is--that----
    Mr. Cuccinelli. So, that is the rationale for having done 
it on a case-by-case basis.
    Mr. Gomez. So, you did not notify the public. OK. Why 
didn't you think it was necessary? Because of the--it was just 
a process? That is it? That is the way you did it, even though 
it was dealing with people's lives?
    Mr. Cuccinelli. Well, sir, everything we do deals with 
people's lives, and, you know, in various ways. And--but as I 
said, typically when we are changing a process and not changing 
legal standards or something else of that nature, guidance to 
adjudicators, for instance, then we do not have public 
    Mr. Gomez. Your agency's September 24 response to this 
subcommittee you said that you did not notify the public 
because this was merely a, quote, ``operational change,'' which 
is kind of what you are saying again.
    Mr. Cuccinelli. Yes, sir.
    Mr. Gomez. Do you really think telling critically ill 
children and their families they have 33 days to leave the 
country or face deportation is merely an operational change?
    Mr. Cuccinelli. Well, you are referencing the form letters 
that got sent out, and the reality is that they weren't----
    Mr. Gomez. Don't tell me that it wasn't----
    Mr. Cuccinelli [continuing]. Facing--do you want me to 
answer the question?
    Mr. Gomez. I have it right here. I have it right here.
    Mr. Cuccinelli. I know you do.
    Mr. Gomez. OK. What does it say?
    Mr. Cuccinelli. It says you may get an NTA. That is what it 
    Mr. Gomez. No, it says very clearly you are not authorized 
to remain in this country. If you fail to depart the United 
States within 33 days of this letter, the U.S. may issue--may, 
but it is pretty scary. I mean----
    Mr. Cuccinelli. In the case----
    Mr. Gomez [continuing]. What happens if the IRS sent you a 
letter saying, hey, if you don't report to the IRS we might 
begin to audit you. Would you be concerned about that?
    Mr. Cuccinelli. I would certainly pay attention to it. Yes, 
I would.
    Mr. Gomez. Exactly.
    Mr. Cuccinelli. Perhaps it would help if you all knew that 
when anyone presents to USCIS, seeks a benefit, and does not 
obtain some status that has them at least not here illegally--
    Mr. Gomez. I am going to reclaim my time----
    Mr. Cuccinelli [continuing]. We--we----
    Mr. Gomez [continuing]. Because I have a few more 
    Mr. Cuccinelli [continuing]. We give them a similar letter.
    Mr. Gomez. Let me ask you a few more questions. Did you 
approve this policy without even bothering to figure out how 
you would implement it?
    Mr. Cuccinelli. No.
    Mr. Gomez. No, you did not. So, what was your plan to 
notify people requesting deferred action, in the general 
public, if they knew that USCIS would stop considering deferred 
action requests?
    Mr. Cuccinelli. Oh, as you noted earlier, our plan was to 
notify them one at a time, individually and directly.
    Mr. Gomez. That was the plan. So, you had no plan but you 
    Mr. Cuccinelli. That was the plan.
    Mr. Gomez. Was to notify them.
    Mr. Cuccinelli. Yes.
    Mr. Gomez. But then you also stated that the function would 
be transferred over to----
    Mr. Cuccinelli. No, no, no, no, no, no. No, sir. That is a 
dramatic mischaracterization, and I think it is how ICE got 
dragged into this in the first place. There was never any 
suggestion, anywhere, by anyone, that we were going to transfer 
some affirmative application process for deferred action over 
to ICE. That has never, ever been the case.
    Mr. Gomez. But Mr. Albence just testified that he was first 
notified by a public affairs officer that learned about it 
through the press. That was not correct?
    Mr. Cuccinelli. It is not transferring this to ICE. ICE has 
their own discretionary authority, which Mr. Albence described. 
We were, to put it in simple terms, ceasing use of this 
discretionary authority----
    Mr. Gomez. So----
    Mr. Cuccinelli [continuing]. Which dates all the way back 
to INS.
    Mr. Gomez. When you decided to reverse the policy, why 
didn't you choose to issue a new--like a news alert, a public 
release, something that said that was being reversed?
    Mr. Raskin. The gentleman's time has expired. You may 
answer the question.
    Mr. Cuccinelli. Yes. If you are referring to the 
Secretary's reversal, we did do that.
    Mr. Gomez. On the--regarding the September----
    Mr. Raskin. He is referring to the initial policy.
    Mr. Cuccinelli. Well, I thought I heard reversal.
    Mr. Gomez. Your full policy reversal on September 18?
    Mr. Cuccinelli. Yes, sir. That was publicly announced.
    Mr. Gomez. OK. I don't have that.
    Mr. Raskin. OK. The gentleman's time has expired. We will 
come to----
    Mr. Gomez. Thank you so much.
    Mr. Raskin. Thank you. We will come to Mr. Roy for five 
minutes of questioning.
    Mr. Roy. Thank you, Mr. Chairman. Mr. Albence, it is--falls 
under ICE for removal proceedings. Correct?
    Mr. Albence. That is correct.
    Mr. Roy. Mr. Cuccinelli, let me ask you a question. Has 
Congress, this august body, created a status for individuals 
who overstay visa or come here illegally?
    Mr. Cuccinelli. No.
    Mr. Roy. Is there a law directing USCIS to give status to 
any of the individuals we are talking about here today, that 
Congress has made clear and put into law?
    Mr. Cuccinelli. No.
    Mr. Roy. My colleagues mention a compelling reason to be 
here as a standard of some sort. Is that a visa category?
    Mr. Cuccinelli. No, and it is very difficult to talk about 
at a policy level, about how it would affect any particular 
case, because by definition it is case by case.
    Mr. Roy. Is it a status?
    Mr. Cuccinelli. No.
    Mr. Roy. Is it as a human being, as a Christian, or as 
someone of faith, or of, you know, looking at someone through 
the eyes of a human being, something that is concerning, a 
compelling reason to be here?
    Mr. Cuccinelli. Sure.
    Mr. Roy. Somebody who is sick.
    Mr. Cuccinelli. Sure. Absolutely.
    Mr. Roy. Is anything in the letter that was sent on August, 
whatever it was, 7, factually untrue?
    Mr. Cuccinelli. No.
    Mr. Roy. Was it legally correct?
    Mr. Cuccinelli. Yes.
    Mr. Roy. Might people quibble over tone----
    Mr. Cuccinelli. Oh, sure.
    Mr. Roy [continuing]. But it was factually correct?
    Mr. Cuccinelli. Sure.
    Mr. Roy. Now you said you made a decision to change 
    Mr. Cuccinelli. Yes.
    Mr. Roy. My perception of the procedures, that I can try to 
figure out the policy, which is what Congress should 
theoretically be in the job I am doing, if one overstays a visa 
or comes here illegally, and you face a health issue and you 
are getting care--in the process that you were here, you had 
status, you were here legally--or you had status and you were 
getting care and now you are overstaying your visa, and the 
process, really, is essentially to go to USCIS and to beg for 
some sort of intermittent, two-year deferral from an entity, 
USCIS, without it being really rooted in any law that Congress 
has put forward, and you seek deferred action from, in essence, 
ICE, by way of a USCIS letter, when USCIS doesn't actually 
prosecute and, therefore, you are effectively leaving these 
individuals in limbo. Do I have roughly the characterization 
    Mr. Cuccinelli. Yes, and it might help people to 
understand, the reason I said this goes back to INS days, back 
in INS, the same person, as a regional director, had the 
prosecutorial authority that ICE now manages, and the USCIS 
authority, at the same time. That was all in one person.
    When INS was broken up, in the initial distribution of 
authorities, this was just given to the three agencies, and I 
don't think with much consideration of what is the difference 
between CBP, ICE, and USCIS, as it relates to something like we 
are talking about.
    Mr. Roy. So, in trying to clarify the procedures, were 
you--can you clarify why you were trying to clarify those 
    Mr. Cuccinelli. So, several years ago the President 
indicated, publicly, that he wanted us to stop utilizing 
essentially expanding the law to provide benefits that aren't 
provided by Congress or by regulation, and that has been an 
ongoing process at USCIS. There are lots of little things that 
have already taken place, all publicly known. This is along 
those lines, which is why I understand Francis Cissna, then the 
director, all the way back at the end of 2017, in conversations 
with field leadership, determined that this was one of those 
types of, just descriptively, authorities, and to start working 
to back out of utilizing that authority because it wasn't 
appropriate for USCIS' mission.
    Mr. Roy. Isn't this at the core of the questioning here, 
right? I mean, on so many levels I get frustrated that Congress 
doesn't act. I get frustrated that Congress doesn't act with 
respect to the authorization of the use of military force. 
Eighteen years after we passed the first on in 2001, we have 
men and women enlisting into the military who were not alive 
when we passed that authorization of force.
    In the spring I introduced legislation called the Article 
One Act, that would have national emergency declarations expire 
after a year. I happen to believe that regardless of who is in 
the White House, Congress should reclaim its authority. 
Congress should act. Congress should do what we are supposed to 
do, which is pass laws and then hold you all accountable for 
carrying out those laws.
    And it strikes me that part of the problem we have here, in 
this case, but also with things like DACA and DAPA, right, so 
let's--you know, in terms of whoever is in the White House--it 
doesn't matter to me--like let's have clarity in the law, and 
let's not expect bureaucrats, respectfully, those in the 
agencies, to be making policies on the margins of the law that 
Congress passes.
    So, if we have, in the case of DAPA and DACA, which when I 
was the first assistant attorney general of Texas we litigated, 
and it went to the U.S. Supreme Court, the question was whether 
or not conferring status and benefits to a class of individuals 
is something you could plausibly say is actually prosecutorial 
discretion. It is ridiculous for Congress to be building a 
policy on the back of asking bureaucrats to make those 
decisions when we hold the pen, and we could decide what laws 
we want to put in place. Would you agree with that?
    Mr. Cuccinelli. Yes. You are not building a policy. You are 
telling us to implement a policy. You are not giving us 
standards. You are asking us for standards that don't exist in 
law. And as I said earlier, pass a law. I promise you we will 
implement it.
    Mr. Raskin. All right. The gentleman's time has expired. I 
want to thank Mr. Roy for his thoughtful comments.
    I want to--I do want to say I concur with a lot of your 
sentiments about Article I and the exercise of congressional 
power. On the DACA question, the House of Representatives has 
passed the Dream Act and it is over in the Senate, so we are 
waiting for Senate action. So, it takes two to tango here in 
the U.S. Congress. It is not just the House side. It is the 
Senate as well, in order to have effective Article I action.
    With that I will recognize Ms. Wasserman Schultz for her 
five minutes of questioning.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    Mr. Cuccinelli, under your leadership USCIS has actually 
bragged about systematically restricting legal immigration, and 
I think it is important for us all to be clear about what you 
have been aiming to accomplish. My constituents, Americans 
across the country, are not fooled by this Administration's 
specious attempts to distinguish between documented and 
undocumented immigration. You and Mr. Trump don't want anyone 
who looks or talks differently than Caucasian Americans to be 
allowed into this country.
    Mr. Cuccinelli. That is false.
    Ms. Wasserman Schultz. I am sorry. Please don't interrupt 
me, and I would like the time to----
    Mr. Cuccinelli. That is defamatory.
    Ms. Wasserman Schultz. Excuse me. There is nothing 
defamatory about it, and----
    Mr. Raskin. The gentlelady controls the time and the 
witness will get a chance to respond.
    Ms. Wasserman Schultz. Thank you very much. You want to 
block all immigration and make life harder for immigrants, and 
you have demonstrated that you will pursue this heinous white 
supremacist ideology at all costs, even if it means making 
critically ill children your collateral damage in the process. 
And this goes to a comprehensive pattern of harm at USCIS under 
your leadership.
    In August, you announced the Administration's new public 
charge rule, for example, which would deny legal status to 
immigrants who use social services. Mr. Cuccinelli, has USCIS 
done any analysis of how many children may stop receiving 
critical services due to fear of losing legal status under this 
rule? I would like you to answer that question please.
    Mr. Cuccinelli. After declaring that I am not a white 
supremacist, that you alluded----
    Ms. Wasserman Schultz. You have had white supremacist----
    Mr. Cuccinelli. Nor is the President.
    Ms. Wasserman Schultz. OK. Facts matter.
    Mr. Cuccinelli. Yes, they do. Yes, they do. Truth matters.
    Ms. Wasserman Schultz. That is why I am stating them here.
    Mr. Cuccinelli. Yes, no. You certainly are----
    Ms. Wasserman Schultz. Please answer the question. Please 
answer the question.
    Mr. Cuccinelli [continuing]. You are certainly----
    Ms. Wasserman Schultz. How many children----
    Mr. Cuccinelli [continuing]. Cloaked in legislative 
privilege, but that means you can get away with not telling the 
    Ms. Wasserman Schultz. Reclaiming my time. How many 
children may stop receiving critical services due to fear of 
losing legal status under this rule? Yanking social services.
    Mr. Cuccinelli. You are asking a public charge.
    Ms. Wasserman Schultz. That is right.
    Mr. Cuccinelli. I don't have that information in front of 
    Ms. Wasserman Schultz. Does anyone behind you have the 
    Mr. Cuccinelli. We came to talk about deferred action 
    Ms. Wasserman Schultz. I am able to ask any question I 
would like in your jurisdiction.
    Mr. Cuccinelli. That is fine, but I----
    Ms. Wasserman Schultz. You have a policy----
    Mr. Cuccinelli [continuing]. Am here to accommodate what 
the subcommittee wants.
    Ms. Wasserman Schultz. No. Reclaiming my time. You are the 
head of USCIS, and you are going to tell me that you 
established a policy on the public charge rule and you don't 
know how many children, off the top of your head, it affected? 
Did you not think it through before you insisted that----
    Mr. Cuccinelli. That rule----
    Ms. Wasserman Schultz.--was the policy?
    Mr. Cuccinelli [continuing]. That rule is 1,000 pages long, 
    Ms. Wasserman Schultz. It is a pretty--so, you know, when 
you are talking about affecting children, one would think that 
someone in your position, if you were going to establish such a 
heinous policy, with such far and significant reach, and 
potentially harm thousands of children, that you would know how 
many children it would affect.
    Mr. Cuccinelli. So----
    Ms. Wasserman Schultz. You don't know?
    Mr. Cuccinelli [continuing]. The--what you refer to as 
heinous policy is a 1986 law----
    Ms. Wasserman Schultz. OK. I am not asking you for a 
    Mr. Cuccinelli [continuing]. Passed on----
    Ms. Wasserman Schultz.--On the policy.
    Mr. Cuccinelli [continuing]. A wildly bipartisan basis.
    Ms. Wasserman Schultz. OK. But you have implemented a 
policy that yanks social services and denies the ability----
    Mr. Cuccinelli. It denies nothing.
    Ms. Wasserman Schultz.--of children legal status to 
immigrate here if they are going to use social services. In 
fact, advocates have reported that immigrant families are 
terrified and that some have already dropped their children 
from essential programs, like Medicaid and Temporary Assistance 
for Needy Families.
    When you announced this rule you were asked whether it was 
consistent with the poem under the Statue of Liberty, which 
reads, quote, ``Give me your tired, your poor, your huddled 
masses yearning to breathe free.'' In response you said the 
poem was only referring to people coming from Europe, and 
people coming from Europe would not be a public charge.
    Mr. Cuccinelli. I did not say that.
    Ms. Wasserman Schultz. That is what you said.
    Mr. Cuccinelli. That is not what I said.
    Ms. Wasserman Schultz. Do you think--well, it certainly was 
the implication.
    Mr. Cuccinelli. No, no, no. It is what you would like to 
broadcast, but that is----
    Ms. Wasserman Schultz. No, no. I----
    Mr. Cuccinelli [continuing]. Absolutely inaccurate.
    Ms. Wasserman Schultz.--I heard you say it. I heard you 
defend it. And I want to know whether you think our immigration 
policies should treat immigrants from Europe differently from 
other immigrants from other parts of the world.
    Mr. Cuccinelli. No.
    Ms. Wasserman Schultz. And is the purpose--you don't think 
    Mr. Cuccinelli. Correct.
    Ms. Wasserman Schultz. So, then I am not sure why you made 
that statement----
    Mr. Cuccinelli. Well, I didn't.
    Ms. Wasserman Schultz.--because it certainly made it seem 
    Mr. Cuccinelli. You--you--you----
    Ms. Wasserman Schultz. You did. You said the poem----
    Mr. Cuccinelli [continuing]. You appended your own--your 
own piece----
    Ms. Wasserman Schultz. No, no, no.
    Mr. Cuccinelli [continuing]. To the end of that.
    Ms. Wasserman Schultz. You said the poem was only referring 
to people coming from Europe. There is no doubt about that.
    Mr. Cuccinelli. You added, to the end----
    Ms. Wasserman Schultz. And--and----
    Mr. Cuccinelli [continuing]. Of the statement----
    Ms. Wasserman Schultz.--and the implication was that people 
from Europe were not likely to be a public charge.
    Mr. Cuccinelli. No, it was not.
    Ms. Wasserman Schultz. Is this--were you attempting to shut 
down the American dream for immigrants who may not be rich or 
white, with this policy?
    Mr. Cuccinelli. No. Obviously.
    Ms. Wasserman Schultz. OK. We are the wealthiest country on 
earth. Surely we can live up to the spirit of Lady Liberty and 
open our arms to immigrant families who just want to make a 
better for their children, and not yank the rug out from under 
them, as you have, with this heinous public charge policy, and 
the intimidation tactics that you have used to make sure that 
people understand that they are not welcome here if they are 
brown or if they need help.
    Mr. Cuccinelli. That is false.
    Ms. Wasserman Schultz. Thank you. I yield back the balance 
of my time.
    Mr. Cuccinelli. That is utterly false.
    Ms. Wasserman Schultz. It is not false.
    Mr. Raskin. The lady is----
    Ms. Wasserman Schultz. The time is not yours.
    Mr. Cuccinelli. With the law back to----
    Ms. Wasserman Schultz. Thank you. I yield back the balance 
of my time.
    Mr. Raskin. The lady has yielded back her time.
    Ms. Wasserman Schultz. And the witness does not have the 
    Mr. Raskin. I will now recognize Mr. Clay, the gentleman 
from Missouri, for his five minutes of questioning.
    Mr. Clay. Thank you, Mr. Chair, and thank you for 
conducting this hearing. The American Academy of Pediatrics, or 
AAP, represents over 67,000 pediatricians across the country. 
After USCIS decided to deport critically ill children, AAP 
wrote a letter to you, Acting Director Cuccinelli, and to 
Acting DHS Secretary Kevin McAleenan, about the decision.
    AAP wrote, and I quote, ``We implore you to reverse this 
decision so that countless children and their families can 
continue to apply for deferred action. For some children, this 
is a matter of life and death.''
    Mr. Cuccinelli, have you read that letter?
    Mr. Cuccinelli. Yes, sir.
    Mr. Clay. Turn on your mic for me, please.
    This subcommittee received 15 more letters from state 
chapters of the American Academy of Pediatrics in advance of 
our hearing in September. These letters include truly 
heartbreaking stories of children and families thrown into fear 
for their lives because of this situation. Doctors in 
Massachusetts reported that the family of a 10-year-old who had 
been blinded by eye cancer had been ordered to leave the 
country, along with the family of a seven-year-old suffering 
from severe epilepsy.
    Mr. Cuccinelli, did you know about either of those--these 
cases, when USCIS decided to end deferred action?
    Mr. Cuccinelli. Congressman, we don't read individual cases 
when making a procedural decision like that, so the answer to 
your question is no.
    Mr. Clay. Did you think about maybe these kids needed some 
life-saving medical attention, that they could only get here, 
in this country?
    Mr. Cuccinelli. Well, Congressman, we knew that as a 
practical matter they had come to us seeking deferred action 
affirmatively. They were not in removal proceedings. None of 
the cases we have talked about before USCIS were in removal 
proceedings. None were threatened with deportation. I have 
heard ICE people say that they were not on--you know, none of 
these people would be on any targeted list. So, when we 
withdrew from the exercise of deferred action in these 
circumstances, we knew that deferred action continued to be 
available to every single one of these sympathetic families.
    Mr. Clay. OK. Listen to this. Pediatricians in Indiana 
reported that parents of at least two infants in a neonatal 
intensive care unit received letters from USCIS, telling them 
to leave the country within 33 days. Imagine that. You have 
just had a child that is so sick she is in NICU. At the moment, 
your child's health should be the only thing you have to worry 
about. The U.S. Government orders you to pack up and leave the 
    Mr. Cuccinelli, did you know about these cases before USCIS 
decided to end deferred action?
    Mr. Cuccinelli. My answer is the same as the earlier 
    Mr. Clay. Which is?
    Mr. Cuccinelli. We do not look at particular cases when 
making process decisions.
    Mr. Clay. So, you don't care.
    Mr. Cuccinelli. No, you asked----
    Mr. Clay. No, I am asking.
    Mr. Cuccinelli. You bet I care.
    Mr. Clay. Do you care that----
    Mr. Cuccinelli. You bet I care.
    Mr. Clay [continuing]. Somebody is in a----
    Mr. Cuccinelli. You bet I do.
    Mr. Clay [continuing]. In a----
    Mr. Cuccinelli. And it would be great----
    Mr. Clay [continuing]. Neonatal intensive care unit, about 
to die?
    Mr. Cuccinelli [continuing]. If we had a law--if you cared 
enough to pass a law, we would enforce it.
    Mr. Clay. Let me ask you this. What would you recommend 
those parents do when they receive that letter?
    Mr. Cuccinelli. What, what most----
    Mr. Clay. What should they do?
    Mr. Cuccinelli [continuing]. What--what we expected most of 
them to do was very little, candidly. We send a lot of those 
letters out, and not in circumstances like we are talking 
    Mr. Clay. What do you expect them to do? Do you want them 
to leave the country? Pack up their stuff? Take their sick 
child and go?
    Mr. Cuccinelli. Either that or make their case in the 
immigration process, where it is appropriate to do so----
    Mr. Clay. All in the middle of----
    Mr. Cuccinelli [continuing]. To stay.
    Mr. Clay [continuing]. All in the middle of them being 
there trying--hoping and praying that they save their child's 
    Mr. Cuccinelli. Which is why deferred action continues to 
exist elsewhere----
    Mr. Clay. How cruel. How cruel. Really? Really? I don't 
believe this. I yield back.
    Mr. Raskin. Thank you. The gentleman's time has expired. 
Thank you for your questions, Mr. Clay.
    Mr. Grothman has joined us and would like to waive on to 
the committee, and without objection we will waive him on to 
the committee, or to the subcommittee, for purposes of 
    Mr. Grothman, you are recognized now for five minutes.
    Mr. Grothman. First of all, I would like to thank you for 
all the business you--all the work you do. I have been down on 
the border myself. I know some of the challenges that, you 
know, you guys are dealing with, with the illegal immigrant 
population, and I think it is very underappreciated, I think, 
given some of the stories I have heard. While I respect law 
enforcement, in general, there a few people who have to deal 
with as much as you folks do.
    Mr. Albence, in your opening statement you mentioned 
violent attacks and threats on ICE offices and personnel and 
their families. Could you elaborate on that a little bit?
    Mr. Albence. Certainly. We had an individual, and 
unfortunately has yet to be caught, that fired a weapon into 
one of our facilities where we had officers working. We have 
had protest groups lay our buildings under siege, threatening 
individuals at work there, aggressive actions against them, 
many of whom--we have to remember, many of the people that work 
for us are not law enforcement officers. We have attorneys. We 
have mission support specialists, many of whom served their 
country and their government 30, 40, 50 years, and have done 
nothing but honorable work that entire time.
    I think reckless language used to denigrate them as 
individuals, and the service that they have done, only serves 
to heighten and stir into action some people who might not be 
of a right mind.
    Mr. Grothman. How is this committee's insistence on 
continuing hearings on this issue impacting you?
    Mr. Albence. Well, as I mentioned previously, and as DHS 
has made clear, this was not anything that was involved in the 
decision on this process. It was CIS'. It is a CIS process that 
they made the decision on, as Mr. Cuccinelli himself has 
spoken, that this is his decision.
    As you can understand, with an agency 20,000 strong, 
enforcing more than 400 criminal laws, things that serve as 
distraction, you know, are very difficult for us to try to keep 
focused on the very important tasks we have, whether it is with 
regard to getting criminal aliens out of our communities, 
whether it with regard to the opioid and fentanyl epidemic, 
whether it is dealing with child predators and sexual 
exploitation. And even with all this, the dedicated men and 
women of ICE show up every day and do the best that they can 
for this country and uphold the oath that they took.
    Mr. Grothman. I am sure the vast majority of people from my 
district respect what you are trying to do, and I think it is 
very tragic when other people go after you.
    I will give you another question. You have been in the news 
a lot lately, talking about sanctuary cities, the harm they 
cause American families, both citizens and immigrants. I think 
the issue would be better explored by the Oversight Committee, 
the House Oversight Committee overall. Would you agree?
    Mr. Albence. I would welcome help from anyone in Congress 
that would like to give it to us.
    Mr. Grothman. Can you speak to the harms that sanctuary 
cities cause to us, cause to American citizens, in general?
    Mr. Albence. Certainly. And we had our EID testify, I 
believe, in front of the Senate Judiciary a few weeks ago. 
There are, every day, right now, as we speak, convicted 
criminal aliens that are walking out the front doors of jails 
because we have jurisdictions that will not cooperate with us. 
Unfortunately, many of these individuals will go out and commit 
further crimes. Those are preventable crimes. Those are 
preventable victims. And, unfortunately, we have more 
jurisdictions that are choosing not to cooperate with us, 
choosing to put politics over public safety, and putting their 
communities in harm's way, rather than remembering why we are 
here, as law enforcement officers, and that is to keep every 
community safe and every person within that community.
    Mr. Grothman. Yes. Just horrible. I sometimes think of it 
as like my--sometimes these people who don't like putting 
criminals in jail. They don't live anywhere where the criminals 
live. It is all fine and good to send criminals out----
    Mr. Albence. It is hard for me to understand sometimes, 
where you have a jurisdiction which just arrested this exact 
same individual for a criminal violation, enforcing the laws 
that they were sworn to uphold, yet when we come to take 
enforcement action against that exact same individual, 
sometimes hours later, to enforce the laws that we are sworn to 
uphold, we are prevented from doing so.
    Mr. Grothman. Well, I think--my guess is part of the 
answer, the people who prevent you from doing so live in the 
nicer parts of the communities, where they don't have to worry 
about the crimes being committed.
    But at a Senate Judiciary Committee last week, one of our 
colleagues seemed confused about detainers and sanctuary cities 
and that ICE was looking for local law enforcement to detain 
innocent people. Could you set the record straight, or maybe 
kind of educate some of these Congressmen on what is going on?
    Mr. Albence. So, just like another law enforcement agency, 
when we lodge and detain, or we do so based on probable cause, 
most of the individuals against whom we lodge and detain are 
convicted criminals. On the civil immigration enforcement side, 
70 percent of the people that we arrest come out of state jails 
and prisons. Ninety percent of the people that we arrest--and 
this has been consistent for the better part of the last 
decade--are a convicted criminal, have a pending criminal 
    Then two smaller buckets within that 90 percent are 
individuals who have been deported previously and illegally re-
entered, which is a Federal felony and one which we prosecute 
aggressively, almost 7,000 times in 2018, and those that are 
immigration fugitives, those who have their day in immigration 
court, gone through the entire court process, and now have 
avoided complying with that order. We have more than 576,000 
immigration fugitives, a number that grows every day.
    Mr. Raskin. Thank you, Mr. Albence. The gentleman's time 
has expired. I now recognize the vice chair of the committee, 
Ms. Ocasio-Cortez, for her five minutes of questioning.
    Ms. Ocasio-Cortez. Thank you, Mr. Chair. Mr. Cuccinelli, I 
just wanted to confirm something that I had heard earlier with 
my colleague from Massachusetts. Did I hear correctly that it 
is your testimony today that you were the individual who made 
the decision to end deferred action?
    Mr. Cuccinelli. Yes. I'm the acting director when we 
implemented this, and I am responsible for that.
    Ms. Ocasio-Cortez. OK.
    Mr. Cuccinelli. So, at that time it is my decision.
    Ms. Ocasio-Cortez. So, it was your decision.
    Mr. Cuccinelli. Yes, ma'am.
    Ms. Ocasio-Cortez. OK. Thank you. I actually greatly 
appreciate that, because we have been trying to get to the 
bottom of that question for quite some time, and I am sure it 
will help us in future examinations of this issue.
    Mr. Cuccinelli, in your agency's September 24 response to 
this committee, you stated that USCIS did not engage external 
stakeholders to solicit feedback on the anticipated 
consequences of your policy change. Why didn't you do that?
    Mr. Cuccinelli. For something like this, where we are 
changing a process and we are not operating off of a legal or 
regulatory foundation, it is not a common practice--I am not 
aware of any other instances where we would seek that kind of 
    Ms. Ocasio-Cortez. So, you did not consider the impact your 
decision would have on critically ill children before making 
this decision?
    Mr. Cuccinelli. We understood that even with USCIS backing 
out of the role of affirmatively granting deferred action in a 
limited number of cases, that that opportunity still existed 
within the entire DHS system.
    Ms. Ocasio-Cortez. I see. Mr. Cuccinelli, in August you 
told Fox News that you, quote, ``see USCIS as a vetting agency, 
not a benefits agency.'' But Congress created USCIS separate 
from ICE and CBP to serve immigrants. In fact, it is USCIS' own 
policy manual that explains that Congress created the agency 
to, quote, ``focusing exclusively on the administration of 
benefit applications.''
    So, Mr. Cuccinelli, USCIS is a benefits agency. Why do you 
consider it not to be one?
    Mr. Cuccinelli. So, perhaps the best way to put that is 
that I would characterize us as a vetting agency first, but 
also a benefits agency, because you all in Congress have laid 
out a whole lot of different benefits that we adjudicate for 
immigrants and potential immigrants to this country. So, that 
is part of our business and mission, and my phrasing is to 
emphasize the role we also play, as an element of Department of 
Homeland Security, in ensuring the safety and security and 
integrity of both the country and that immigration system.
    Ms. Ocasio-Cortez. So, Mr. Cuccinelli, I think what is 
tough here is that--and while I respect that Congress hasn't 
done its job, in many respects, in defining immigration policy, 
it has been a failure for a very long time, for Congress to be 
able to define a lot of policies correctly. But we still have 
created a mission for USCIS through which the agency can 
interpret the spirit of this law. It says right here, in USCIS' 
website, the agency's core values are defined as integrity, 
respect, innovation, and vigilance. And there is a reason that 
USCIS is separate from ICE and CBP. I don't understand how 
deporting critically ill kids is consistent with any of these 
    Mr. Cuccinelli, do you believe that you treated children 
with cancer, cystic fibrosis, and other diseases with the 
dignity and courtesy of the mission of this agency, when you 
decided, in secret, to end consideration of deferred action and 
ordered them to leave the country within 33 days or face 
    Mr. Cuccinelli. Yes, there was nothing secret about what we 
did. Because it was a process change, we made individual 
notifications. But you, yourself, just referred to the ability 
to view the mission and the spirit, and it is one chain after 
another. There is no law or regulation in any of that. So, we 
do the best we can, fulfilling our role and limiting ourselves 
to our role, particularly when there is continuing avenue----
    Ms. Ocasio-Cortez. Right, but----
    Mr. Cuccinelli [continuing]. Recourse for these folks.
    Ms. Ocasio-Cortez [continuing]. But you have discretion in 
your role. So, here is the thing that I can't figure out, is 
that you have thousands, tens of thousands, hundreds of 
thousands of cases, if not millions.
    Mr. Cuccinelli. Millions.
    Ms. Ocasio-Cortez. Millions of cases in this country. And 
you decided to prioritize the deportation of critically ill 
kids, and I am trying to figure out why.
    Mr. Cuccinelli. So, we did not do that. We have gone 
    Ms. Ocasio-Cortez. Out of all the--but you did--out of all 
of the----
    Mr. Cuccinelli [continuing]. The process----
    Ms. Ocasio-Cortez [continuing]. Reclaiming my time. 
Reclaiming my time, with respect.
    Mr. Cuccinelli. Well, so you asked a question----
    Ms. Ocasio-Cortez. But with respect----
    Mr. Cuccinelli [continuing]. And I should answer the 
    Ms. Ocasio-Cortez [continuing]. With respect, and I will 
give you a moment. I will give you a moment. With respect. When 
you make this decision, at a time, at a specific time, you are 
making this decision with--at the cost of other decisions. So, 
why did you make this decision to deport critically ill kids 
before almost all the other decisions that you had to make as 
an agency?
    Mr. Cuccinelli. So, we didn't decide----
    Mr. Raskin. The gentlelady's time has expired. You can go 
ahead and answer the question.
    Mr. Cuccinelli [continuing]. We didn't decide to deport 
anyone. We made the decision at the end of a long road that 
predates me coming into my current position, and discussions 
across DHS. But it was on August 7 and I was the director, so 
at that point it is my decision.
    One of the things that Dan Renaud testified to, from USCIS, 
at the last hearing, is that, to your point, there are 
tradeoffs, as you note, quite correctly, and handling 1,000 of 
these cases absorbs resources, which, by the way, we are not 
paid for, that would otherwise deal with approximately 2,000 
naturalization cases. Now we did more naturalizations last year 
than the whole decade. Nonetheless, there are still more 
pending, and we--I hear from many of you all, legitimately, 
about concerns about backlogs in some areas. We have improved 
in many areas.
    But we have limited resources, and this is an undertaking 
by USCIS that was and is going on, that has never been assigned 
by Congress, that has never been part of a regulation, and the 
authority to grant the same relief continues to exist even had 
USCIS not continued to participate in the way that we now do 
    Mr. Raskin. Thank you, Mr. Cuccinelli. The gentlelady's 
time has expired.
    The gentlelady from the District of Columbia, Eleanor 
Holmes Norton, is recognized for her five minutes of 
    Ms. Norton. I want to thank Chairman Raskin for really this 
very necessary, I must say painfully necessary, hearing.
    Of course, today's witnesses had not only the hearing 
before, because they said they were in the midst of ongoing 
discussions with DHS to resolve it, and now, of course, they 
say it has been resolved, so why in the world should we come to 
Congress, apparently not understanding the role of Congress, 
and making sure that a matter does not reappear of this kind.
    Mr. Cuccinelli, you sent a letter to Chairman Raskin, the 
date was September 19, informing him that DHS Secretary 
McAleenan had--and here I am quoting--``directed you USCIS to 
open consideration of non-military deferred requests,'' sick 
children of the kind under investigation today, ``on a 
discretionary, case-by-case basis.''
    Now DHS has provided the committee with a September 18 memo 
from the acting secretary to you, providing the same directive. 
Why was the decision made to reverse the policy on deferred 
action--to defer action on a case-by-case basis, when it came 
to these sick children?
    Mr. Cuccinelli. That was not a change, Congresswoman 
Norton. It was always case-by-case. Deferred action, by 
definition, is a case-by-case consideration.
    Ms. Norton. But there was a category.
    Mr. Cuccinelli. No, ma'am, and there was no medical 
deferred action. You sort of implied in your comment that this 
was just about people seeking medical concerns, and----
    Ms. Norton. Sick children. Sick children. We are interested 
in the sick children.
    Mr. Cuccinelli. Well, they are among--they are among those. 
We also get ADHD filings, and we have filings for people who 
are getting older, and that is their basis for their claim.
    Ms. Norton. So, you----
    Mr. Cuccinelli. So----
    Ms. Norton [continuing]. So, there was no directive 
whatsoever to reverse the policy to case-by-case, and we did 
not understand the policy to be anything--to be case-by-case 
before. So, you are telling us it has always been case-by-
    Mr. Cuccinelli. Yes.
    Ms. Norton [continuing]. Is your testimony.
    Mr. Cuccinelli. Yes.
    Ms. Norton. Obviously, you have to look at every case, but 
we are looking at the category of sick children. I want to--I 
am asking you because of a decision that directly conflicts 
with the recommendation your agency reportedly prepared for the 
acting Secretary just 10 days prior to reversal. And I am 
referring to a memo that was apparently prepared by your policy 
and strategy chief, for a September 9 meeting with Secretary 
    You were selected to lead that meeting. Are you familiar 
with that memo?
    Mr. Cuccinelli. I don't have it memorized but I am familiar 
with what you are referring to.
    Ms. Norton. The USCIS has not produced that memo for us, 
but the press reports indicated that the memo recommended that 
the Secretary revoke USCIS authority to grant requests for 
deferred action. Reportedly it said, in here--here is the quote 
from the memo--``runs counters to the President's agenda to 
enforce our existing laws and potentially contrary to his goal 
of making sure aliens are self-sufficient,'' end quote.
    Mr. Cuccinelli, did you direct your policy and strategy 
chief to send that memo that I just quoted from?
    Mr. Cuccinelli. Well, we certainly did send a memo with 
recommendations to the Secretary before he made his ultimate 
decision. It included six or seven, as I recall, different 
    Ms. Norton. Did you agree with that recommendation, that 
the authority of USCIS to grant deferred action requests should 
be revoked? Particularly I am interested, even as to these sick 
    Mr. Cuccinelli. It was a broader comment that, with the 
breakup of INS, this authority was appropriate for the 
prosecutorial arms of the Department of Homeland Security.
    Ms. Norton. So, you did not think that, even with respect 
to sick children?
    Mr. Cuccinelli. Not--and not appropriate for USCIS. So, it 
wasn't--we didn't--it wasn't just related to this category. 
And, of course, you mentioned sick children, which I, and I am 
sure everyone else at USCIS are very sympathetic to, but that 
is a category. That is exactly the kind of thing we would look 
for in legislation as a category. We do not have the power or 
authority to create a categorical grant of a benefit.
    Ms. Norton. Mr. Chairman, I just want to indicate that, of 
course, there is administrative authority to create categories, 
but if they need legislation maybe we need to tell them what 
they already know.
    I thank you very much, Mr. Chairman.
    Mr. Raskin. The gentlelady yields back, and perhaps you 
could pursue this with Ms. Norton, who is the chair of the EOC, 
so she knows administrative law and policy very well. But it is 
an interesting conversation.
    Let's see. We come now to Mr. DeSaulnier. He recognized for 
five minutes of his questioning.
    Mr. DeSaulnier. Thank you, Mr. Chairman. Mr. Cuccinelli, it 
is a little difficult for me to sit here and listen to you say 
it is the Congress' responsibility, when this Administration 
has, and the President has publicly said that the second 
article of the Constitution tells--gives him the authority to 
do whatever he wants. And the amount of discretion that you 
have tried to--the Administration, I should say--in this field, 
have been challenged in court. The courts have so far upheld 
things like funding of the border wall, separation of children.
    So, you are an attorney. I assume you believe in 
precedence. Deferred action started in the early 1970's, I was 
told, in the Nixon administration. There have been iterations 
all along, allowing for discretion, administrative discretion. 
And now suddenly you say the Congress needs to act.
    I would like--as I said at the last hearing--the historical 
perspective, at least in the last five sessions, Senate Bill 
744, the so-called Gang of Eight bill, four Republicans, four 
Democrats, passed out of the House with bipartisan support, led 
by Senators Schumer and Durbin and McCain and Rubio. Then it 
got over here and we are told now, through articles in the 
press and interviews by Mr. Bannon, that he and others went to 
elements of the Republican caucus, and I am not privy to this, 
but argued that that bill should never come up, because it was 
a good wedge issue for politics. So, it never came up.
    Recently, last session, Will Hurd, a very well-respected 
Republican member, and Pete Aguilar, introduced a very similar 
bill. Again, the speaker never brought it up.
    So, any member is free to put a piece of legislation in and 
let the public see what it is, and I would encourage my 
colleagues on the other side to do that, and I would be happy 
to work with them. But this context that it is everyone's fault 
defies what we have been told in the press, about the dynamics 
in the other caucus.
    So, having said that, I want to turn my attention 
specifically to one case. You have talked about process, and 
you have been very dispassionate about it. Mr. Renaud, who was 
here last time, in the case of Isabel Bueso, who has become--
the family has become dear friends--they came here legally, by 
the way. They were here legally, under a tourist visa. They 
were invited to the United States under a Federal program, to 
be part of a medical trial that has kept her alive.
    She was seven years old when she came here from Guatemala. 
She is now 24. Her doctor, a very well-respected doctor at the 
University of California at San Francisco children's facility 
in Oakland, says if she goes back to Guatemala she will die, 
because she can't get the weekly treatment she gets.
    So, you said all of these people were here legally. In this 
case, at least, that is not the truth. Now maybe we can argue 
some of the parameters of that, but I want to read the letter 
that she got, as I understand it, at your direction from the 
field office director in San Francisco.
    ``Dear Ms. Bueso, thank you for the request for deferred 
action for U.S. Citizenship and Immigration Services field 
offices. No longer considered deferred action request, except 
those made according to the U.S. Department of Homeland 
Security policies for certain military members. The evidence of 
record shows that when you submitted your request you were 
lawfully present in the United States,'' so even your 
department recognizes, contrary to your earlier comments, that 
she was here legally. ``Your period of authorized stay has 
expired. You are not authorized to remain in the United States. 
If you fail to depart the United States within 33 days of the 
date of this letter, USCIS may issue a notice to appear and 
commence removal proceedings against you in the immigration 
    So Ms. Bueso, she was asked at the last meeting how did she 
take this when she received this letter. She was at the 
hospital, receiving treatment, her mom gave her the letter, and 
she told us that she vomited, that she was so upset they had to 
    So, how can you, as dispassionately as you describe this, 
Ms. Renaud said--I am not finished, and there is a process 
here, and it is Congress' process--he said, Mr. Grothman, and 
he wouldn't answer my questions, but questions of Mr. Grothman, 
he said, ``Oh, there would have been a file. We would have 
known about her. We would have pulled the file and that should 
have gone up the chain of command.'' So, did you ever hear 
about Isabel Bueso before you made this direction?
    Mr. Cuccinelli. Before this was decided? No, sir.
    Mr. DeSaulnier. Did you ever think of the consequences for 
people like her? Did you ever think that with all the other 
things you have to do--and I respect that, and I also respect 
the fact that Congress needs to come together. But you still 
have consequences, and as the record shows, multiple 
administrations--and she was--she, in her case, was approved 
for deferred action by your administration. So, all of a sudden 
things changed. She is here, she is under a program, she is 
saving people's lives, Americans' lives and others, under a 
much-respected American Federal Government program, and then 
she gets this letter. You are responsible for that. Would you 
care to respond?
    Mr. Cuccinelli. When we withdrew on August 7 from granting 
affirmative requests for deferred action, we knew that that 
authority continued to exist, and anyone who would have 
received such a letter could have or would have been in the 
process where they could also get it from a more appropriate 
source other than us.
    And as Mr. Renaud, who you referenced, also said that day, 
the adjudicator who would have been dealing with a particular 
case, I believe is what Mr. Renaud was referring to, would have 
known about it. That doesn't mean that all however many hundred 
cases are all known at any given time by a regional director or 
the head of field operations or myself, at any given time. And 
usually only a small portion of them are ever learned about.
    Mr. Raskin. The gentleman's time has expired, and I am 
going to recognize Mr. Cloud now. He has just arrived.
    Mr. Cloud. Thank you, Chairman. I apologize for tardiness. 
I have been in the SCIF. I would like to yield time to Mr. Roy.
    Mr. Roy. I thank my friend from friend from Texas. I would 
have been in the SCIF, but we have had competing circumstances 
here. So, I would just ask a couple quick questions. Mr. 
Cuccinelli, I have heard a few of my colleagues and other side 
of the aisle, particularly my colleague from New York, talk 
about benefits. Can you clarify for the record here whether or 
not there is or is not a benefit being conferred, or are we 
talking about, in essence, a discretion, a prosecutorial 
discretion, choice, as to how we handle these cases?
    Mr. Cuccinelli. Well, deferred action is a prosecutorial 
    Mr. Roy. Right.
    Mr. Cuccinelli. And we are not a prosecuting agency. The 
closest thing to that is simply issuing an NTA that starts a 
process that puts you into the prosecutorial process. We do not 
participate in that. That is where deferred action has 
historically existed and been appropriate, and, frankly, it is 
inherent in that authority. It is not inherent in our authority 
    Mr. Roy. Right. Also, you touched on this a little bit ago, 
the cost of adjudicating DACA applications, applications like 
we are talking about here, these deferred actions, not just 
DACA and DAPA, but these deferred action cases, the cost of 
adjudicating those, and what that means in terms of diverting 
resources from naturalization applications. You mentioned that 
before. Can you reiterate how important that is in the 
decision-making in a world of limited resources?
    Mr. Cuccinelli. Yes, and I didn't mean to suggest that the 
people doing this would automatically spend 100 percent of that 
time on naturalizations.
    Mr. Roy. Right.
    Mr. Cuccinelli. I was just trying to give the subcommittee 
a point of reference. And the Congresswoman correctly alluded 
to the fact that there are tradeoffs. If we are doing this, we 
are not doing something else. And we, like any other agency, 
struggle to keep up with our workload, but unlike most agencies 
of the Federal Government, we are 96-plus percent fee funded by 
part of the immigrant community we serve, and we have to 
operate on what amounts to a balanced budget function year to 
year. So, we don't have the opportunity to come financially 
flexed to absorb more work that hasn't been assigned by 
Congress or by law or regulation in some way.
    Mr. Roy. One more clarifying question, and then I want to 
yield back to my colleague from Texas. One of my colleagues 
referenced something about people who are here legally getting 
wrapped into this, and I just want to clarify for the record 
that that is not the case, correct? I mean, when we go back to 
the letter and question in August, all that has been done, all 
that was attempting to be done, was noticing folks who were 
here who did not have status.
    Mr. Cuccinelli. Right.
    Mr. Roy. And then Congress has not produced a status for 
you to give, that this was a letter clarifying their status.
    Mr. Cuccinelli. That is right. And just understand, you 
could have a situation where someone is coming back for a 
repeat deferred action request, and they do it within the two-
year time period that is traditionally, though there is no 
requirement that it be two years, granted. It can also be the 
duration of treatment if we can identify that. And at that 
point in time, they will at least be under the then-existing 
deferred action grant.
    Mr. Roy. OK.
    Mr. Cuccinelli. So, you know, however you would like to 
phrase that.
    Mr. Roy. I would yield to my colleague from Texas.
    Mr. Cloud. Thank you. I only have about one minute left, 
but could you tell me what law authorizes USCIS to grant 
deferred action to any immigrant who is here illegally?
    Mr. Cuccinelli. Well, there is no specific law that does 
that. This is a derived authority granted to the Secretary for 
use specifically in case-by-case circumstances that came when 
INS was broken up and, you know----
    Mr. Cloud. So, to be clear, the USCIS does not have a 
formally established medical deferred action program? Is that 
    Mr. Cuccinelli. Absolutely not, never has and it is never 
existed in the Department of Homeland Security or its 
predecessor, INS, as far as I know.
    Mr. Cloud. And would you say that it is being treated as if 
it were a formally established program?
    Mr. Cuccinelli. Certainly a lot of the discussion sort of 
assumes a program that a lot of people use the medical deferred 
action title for. And, you know, there are other reasons people 
request deferred action other than medical. They are perfectly 
good human reasons, sympathetic reasons why we are talking 
about the medical, but other requests are made as well.
    Mr. Cloud. OK. And how many requests for medical 
departments do you receive each year?
    Mr. Cuccinelli. If you count not just the requester, but 
family members who might be requesting to stay to be with 
another family member for medical reasons, probably in the 500, 
to 600, to 700 range.
    Mr. Cloud. And do you feel you have to appropriately deal--
    Mr. Cuccinelli. Well, I mean, we can do the work, but then 
we are not doing other work that is legally assigned. I mean, 
that is the tradeoff.
    Mr. Cloud. Thank you, Chair.
    Mr. Raskin. Thank you very much, Mr. Cloud. OK. We are 
going to do one other round just to clean up some questions 
that are lingering and any member who would like to do a few 
more. I am going to start with the gentlelady from 
Massachusetts, Ms. Pressley. You are recognized for five 
    Ms. Pressley. Thank you, Mr. Chairman. And, again, our 
forever chairman, Elijah Cummings, reminded us that the charge 
of this committee is to be in efficient and effective pursuit 
of the truth. So, I am encouraged that today we made some 
progress in that regard, and I want to thank you under oath for 
your honesty, Mr. Cuccinelli, in taking responsibility for that 
decision to reverse the policy. I want to ask you, it was 
previously mentioned on the record that your Agency had done 
analysis to ascertain what would be the impact of such an 
abrupt policy change. Do you believe that your Agency did 
enough analysis to assess that impact?
    Mr. Cuccinelli. I am sorry if I was unclear earlier. We 
didn't do any separate studies, for instance, like we might 
when preparing a regulation or something. It was an internal 
discussion, not what I would characterize as a study.
    Ms. Pressley. Well, given that it was an abrupt policy that 
stood to impact, quite literally, the lives of critically ill 
children, in hindsight, do you think that you should have done 
some analysis?
    Mr. Cuccinelli. Well, I do think if in the ``I had it to do 
over again category'' that I would not have applied it to 
people then pending, if for no other reason than to ease the 
information out and to not surprise them with a change in 
circumstances. That would be the main thing I would do 
    Ms. Pressley. All right. Mr. Cuccinelli, it has been widely 
reported that the Office of Legal Counsel at the Department of 
Justice determined that you were not eligible to serve as 
acting secretary of Homeland Security under the Vacancies 
Reform Act and the Homeland Security Act. It has also been 
reported that the director of the Presidential Personnel Office 
at the White House has accepted this decision and briefed the 
President accordingly. Do you accept the decision of the 
Department of Justice and the President Personnel Office that 
you are ineligible to serve as acting secretary?
    Mr. Cuccinelli. I am not privy to anything you just 
described, and so I cannot answer that question.
    Ms. Pressley. Well, it is public record, but, you know, 
just could you give me your visceral response?
    Mr. Cuccinelli. As you may know, my last government post 
was Virginia state government, and I am no expert. I know areas 
of the law very well, but I don't know them all, and one I 
don't know very well is Federal employment law, including 
things like the Vacancies Act and so forth. And I have not 
studied it or looked at it.
    Ms. Pressley. Sure, but, again, the Department of Justice 
and the Presidential Personnel Office have ruled that you are 
ineligible to serve as acting secretary. So, if asked to serve 
contrary to the law, will you decline?
    Mr. Cuccinelli. I would not do anything contrary to the 
law. If I understood something to be contrary to the law, I 
wouldn't do it.
    Ms. Pressley. All right. Very good. If President Trump 
chooses either of you to replace Acting Secretary McAleenan, 
will you commit to keeping deferred action protections in place 
at USCIS? And this is for both Mr. Cuccinelli and Mr. Albence.
    Mr. Cuccinelli. I don't think it is appropriate to comment 
forward like that. I told you just here what I would 
characterize, I will call it a mistake because it was, to apply 
this retroactively in particular. I do think the underlying 
philosophy was correct, and I also understand that deferred 
action that remains available for all the people even had the 
USCIS policy going forward. But I cannot tell you going forward 
what I would advise some other secretary to do or what they 
would do, or even if I were the secretary.
    Ms. Pressley. Well, that is disappointing because this is--
    Mr. Cuccinelli. I understand, ma'am.
    Ms. Pressley. Mr. Cuccinelli, respectfully, you have 
accepted responsibility for making this egregious policy 
reversal. You have also expressed regret, and just now you use 
the word ``mistake.'' So, I am not sure why it is challenging 
for you to just offer if you are the acting secretary, would 
you keep the deferred action protections in place at USCIS.
    Mr. Cuccinelli. I don't expect to see any change regardless 
of who the secretary is unless the program itself changes 
    Ms. Pressley. Reclaiming my time. Mr. Albence, your 
    Mr. Albence. I mean, first, I don't think there is any 
reason to speculate that I might be the acting secretary 
because I don't see that happening.
    Ms. Pressley. Would you keep the policy in place, sir? Yes 
or no.
    Mr. Albence. I would certainly look at any decision going 
forward. I support the decision that acting secretary McAleenan 
    Ms. Pressley. Reclaiming my time. In closing, I just want 
to remind my colleagues here today to not lose sight of why we 
are here, the families and their critically ill children, whose 
lives are on the line. We have talked a lot about process, but 
this isn't about process. It is about people, and we should 
never forget that. Thank you, and I yield.
    Mr. Raskin. The gentlelady yields back. Thank you for your 
comments. Mr. Roy, anything? The gentleman from Texas, Mr. 
Cloud, is recognized for five minutes.
    Mr. Cloud. Thank you, Chairman. Mr. Cuccinelli, you started 
to get into the lack of resources to do what you are legally 
mandated to do. Could you speak to that?
    Mr. Cuccinelli. Wow, I could use a lot more than five 
minutes on that, Congressman. You know, I will start with what 
I think is the highest-profile backlog we have, which I would 
say is accurately characterized as a backlog, and that is 
asylum cases. Over half of them are over two years old, and I 
am referring to affirmative asylum cases. There are two ways to 
claim asylum. The Department of Justice, if they were here, 
would be talking about defensive asylum claims in immigration 
proceedings. We deal with affirmative asylum claims. We have 
about 340,000 cases pending. As soon as I arrived, I began the 
work to plan and execute, and we are in the middle of 
executing, a massive hiring campaign for asylum officers to 
start attacking that backlog more effectively.
    The main problem in attacking that backlog effectively is 
the crisis at the border. We broke records again for credible 
fear interviews last year, just to use one example, reasonable 
fear interviews associated with the MPP Program. The same 
people are doing that work, and none of what I just described 
to you, Congressman, is paid for. None of it. So, when we 
construct our fees, we have to build into those things what we 
do charge for, the cost of the things that we don't charge for, 
typically humanitarian work of a variety of forms.
    Mr. Cloud. OK. You mentioned that this program is not 
formally established. Could you speak to what the process for 
formally establishing it would be? Who is----
    Mr. Cuccinelli. Well, I mean, really the only avenue is 
legislation. This authority, as I said, was around in INS days, 
and that was when prosecutorial authority in a region was 
residing in the same person who was responsible for all of our 
visa work, the benefits that I was talking with the 
Congresswoman about earlier. Within the division of INS, those 
authorities were divided, but it appears, looking back, I 
wouldn't even call it a solution. The almost knee-jerk reaction 
was just to assign the same authority to all three agencies, 
even though we don't have prosecutorial responsibilities.
    Mr. Cloud. Right. Since USCIS is using your own discretion 
to provide deferred action, can you speak to some of the common 
illnesses that are normally granted deferred action for medical 
    Mr. Cuccinelli. I am sorry, the common what?
    Mr. Cloud. Some of the common medical illnesses that you 
see that are granted.
    Mr. Cuccinelli. So, I have to say my information is 
anecdotal. Obviously we have been talking about this, as you 
all have, over the course of the last several months. So, I 
pulled a selection of cases, for instance, just to review at 
random to see what the cases look like, so to get an idea of 
what adjudicators' workload was associated with these and what 
they had to do and contend with, and it runs the gamut. I mean, 
it runs from the kind of cancer and cystic fibrosis we have 
heard about today.
    Obviously among the most sympathetic types of situations 
you can imagine, there are two things that look to me, even 
though I don't decide these cases, rather patently abusive. I 
use the ADHD example. Really? Just not in the same league. You 
know, people claiming getting older. And I also mentioned 
earlier a good number of them are not medical. They are other 
claims as to reasons they want to stay. And candidly, the cases 
we talked about here, even though we can't decide a case 
sitting at this table, are the ones that you would think are 
most likely to be found by a career employee, and that is who 
decides these, to use the Secretary's language, compelling 
facts and circumstances. But I can't sit here and prejudge them 
even favorably, even though I am sympathetic to them.
    Mr. Cloud. And you mentioned that really when this comes 
down to it, it is our job to manage the resources and give you 
direction on them. Could you explain what is the best thing 
that we could do when it comes to what your job is? You talk 
about the limited resources to do all these things.
    Mr. Raskin. The gentleman's time has expired. Please answer 
the question.
    Mr. Cuccinelli. OK. I mean, don't make us guess, you know. 
Congresswoman Norton referenced category of sick children, and 
she said ``category.'' If it is a category, you all should be 
assigning it to us. Of course the Supreme Court is going to 
take up DACA on November 12, and it follows the pattern of the 
DAPA that Ranking Member Roy mentioned. Can the executive 
branch use these inherent authorities that Congress hasn't 
given any direction on to create categorical grants of 
benefits? It is the position of this Administration that we 
cannot do that.
    We will use the authorities we do have that are 
discretionary on a case-by-case basis. Nonetheless, at the 
beginning of this process on August 7, it was understood that 
the authority to grant this relief would continue to exist at a 
different point in the process, and I know people don't 
necessarily want to. They would rather go to USCIS than ICE. 
But the fact of the matter is that that is the appropriate and 
historically appropriate, getting outside the Federal 
Government, place for prosecutorial discretion. And that is 
with a prosecutorial agency.
    Mr. Raskin. Thank you very much. I am going to recognize 
Mr. DeSaulnier for five minutes of further questioning.
    Mr. DeSaulnier. Thank you, Mr. Chairman. You have mentioned 
waiting for legislative action, even though it is clear you 
have the discretion, or the precedent is there for discretion. 
So, what I would suggest to you, and I would like a response, I 
have a private bill for Isabel. It is in Judiciary right now. 
We are looking for support. We have had comments from legal 
experts. If there ever was an example of a need for a private 
bill, this is it.
    So, I would ask in the interim for this specific case, that 
as she goes through, and I am being told by her attorney some 
of the questions are different than the last 4 times she went 
through this, that you would work with us because I assume you 
don't want to be back in the position where she is on the cover 
of national magazines, she is in the New York Times as example, 
even though she may be a little bit different. So, that is one.
    And then Ms. Pressley and I are working with the committee, 
are looking for Republicans to work with, to tailor a bill for 
this group of people that would help them. And in a normal 
functioning relationship between both parties in Congress and 
the Administration, we would be trying to work on something 
knowing that they would be give and take. So, within that 
context, I hope and I would like some kind of response from 
you, that you have the discretion to at least work with us to 
see if we can provide legislative remedy for this group of 
people, and specifically for this person.
    Mr. Cuccinelli. Well, I don't necessarily agree with your 
initial comment about precedent and our authority. We will 
absolutely work with you, and I want to make it very clear. We 
don't even have to agree with what you are doing to be willing 
to help you do it correctly and craft it correctly. We will do 
that and bring subject matter experts to help you do that. We 
would be glad to do that.
    Mr. DeSaulnier. Well, I am grateful for the help. It sounds 
a little patronizing, but I will accept that.
    Mr. Cuccinelli. Well, no, I mean----
    Mr. DeSaulnier. We will give you help in return.
    Mr. Cuccinelli [continuing]. I say it that way simply 
because the nature of some of the discussions, you know, people 
can have the opposite impression. It is not intended to be 
patronizing at all. It is intended to, you know, to point out 
that is a function we----
    Mr. DeSaulnier. Accepted. Accepted. That was my Irish sense 
of humor. So, in the process of how all this developed, you 
issued what came to be the letter. You were going to eliminate 
deferred actions. There was this big public response. We had a, 
I thought, very bipartisan hearing here. And then there was 
discussion within the Administration about what you should do 
about it. There is a memo that the press has got a hold of that 
was given to you by your policy director suggesting that you 
shouldn't backtrack, that you should keep it as you originally 
were going to do. Is that true? And did you have an opinion at 
that time? And clearly at that time--that was after our 
hearing--you knew about Isabel and some of these other cases. 
So, did you support the Acting Secretary's decision to change 
the policy on deferred action?
    Mr. Cuccinelli. Yes, I thought it was particularly critical 
to get the question decided. And as I view our role when 
advising something like that, we gave him a wide variety of 
options, presented those to him. With respect to my earlier 
comments, to Congresswoman Pressley where I noted that I did 
think it was a mistake to implement this on a retroactive 
basis, I freely concede that. But philosophically, it is 
appropriate or more appropriate for this authority to rest with 
the prosecutorial element of the Department of Homeland 
Security, which is not USCIS, and that these folks would still, 
while under different circumstances, be able to avail 
themselves of that.
    Mr. DeSaulnier. OK. So, in this specific case, and this is 
for both of you, they are in limbo. They are in a legal 
bureaucratic limbo, the boyos. Dad keeps working. And by the 
way, there was no public charge here. They paid for their 
insurance to be part of the program. They are taxpayers. They 
are beneficial to the economy and the community. Isabel went 
and got a degree with honors from Cal State East Bay. So, how 
do we work to help them through this process until we get to 
the point where either she can get her deferred action in this 
bureaucratic limbo?
    Mr. Cuccinelli. Well, we have, as you know, reopened these 
cases. And I speak to timelines for particular cases, but I do 
know that we have commenced deciding them. I mean, we are 
getting through some of the work. We have seen an uptick in 
filings, I would note for you, since this public discussion 
began, and which that is behind the boyos in that they were 
already in the pipeline, if you will, so theirs would not be 
affected by that uptick. But I can't speak to exactly how long 
it would take for each of those cases to be decided. I can 
check it separately when we leave here----
    Mr. DeSaulnier. In the idea of working together, and I 
would be willing to help you in this regard, not being 
patronizing hopefully, they are in this situation. It is a 
practical situation. If we could work to assure them they were 
going to have their due process as you currently outline it.
    Mr. Cuccinelli. Right.
    Mr. DeSaulnier. And if there is a gap in there, we are 
going to work through until the decision-making. And then if we 
could work on legislation that would be permanently correct, at 
least for this group of people or for her, that is what I would 
like to hear.
    Mr. Cuccinelli. Yes, we would be glad to do each one of 
those things.
    Mr. DeSaulnier. All right. Appreciate it. Yield back, Mr. 
    Mr. Raskin. Thank you very much. The gentleman from 
Kentucky, Mr. Massie, is recognized for five minutes.
    Mr. Massie. Thank you, Mr. Chairman, and thank you for 
having a hearing on this important topic. I want to thank the 
witnesses for showing up and dispelling the misinformation that 
has been out in the press and the false narratives that we have 
heard for the last several weeks and months.
    Before I yield time to the ranking member here, I just want 
to lament that the full committee, this committee is right now 
simultaneously conducting a bogus impeachment process three 
stories underground beneath the Capitol Visitor Center in a 
closed room. You have to go through three doors to get there, 
and a lot of my colleagues who would like to be here today are 
down there, both on the Democratic side and the Republican 
side. So, I just want to say I think it is a shame that that is 
simultaneously happening. Not just that it is happening out of 
the view and sight and sound of the American public, but that 
it is happening at the same time as this important hearing. 
With that, I would like to yield the balance of my time to the 
ranking member, Chip Roy.
    Mr. Roy. I thank my friend from Kentucky. I have made that 
similar point before you were able to join, and I will make it 
again. I agree with you. We shouldn't be having these things 
concurrently. This is too important an issue, and this has been 
happening on a regular basis. Last week I had to do the same 
thing on a different hearing where I was unable to participate 
in the depositions that are going on on this important matter 
in a way that, as I will reiterate, it is very difficult to get 
transcripts, even for those of us on the committee.
    You are trying to figure out how to go get information for 
a thing that is occurring right now that I can't physically be 
present for, and now I want to go try to figure out what I 
missed, and I can't do it in an easy fashion. And any of my 
colleagues who aren't on the committee can't do it. Now again, 
some of this may get remedied tomorrow. Not sure. But I happen 
to believe that the House Rules indicate that the records of 
this body are the possession of each and every member, and we 
are supposed to be able to have access to those records and 
have an open process to be able to go see this information. And 
it is, I think, critically important for the American people to 
know that this is what has been going on and that we can't have 
the kind of full debate that we ought to have.
    I do want to just come back one thing, and at a little bit 
of risk of repetition, but it is, I think, really important 
because I appreciated some of the comments from my friend and 
colleague from California that maybe we could work with you all 
and try to figure out how to solve any of the issues here from 
a policy perspective as a legislative body, act as a Congress 
to solve the issue.
    In carrying out the action that Mr. Cuccinelli carried out, 
and you can jump in here because I don't speak for you, but I 
will characterize it in this way. One might say the letter 
could have been written a different way or maybe we could have 
carried it out a different way, and this is what has been 
discussed. And Mr. Cuccinelli has said that, you know, maybe he 
hoped to have done it differently. But it has highlighted an 
issue, an issue that has been lingering where my colleague use 
the word ``limbo.'' Even with the letter from USCIS, you are in 
limbo. There is status given, right?
    And, Mr. Cuccinelli, am I correct about that? In other 
words, USCIS gives a letter that basically says, here, you got 
a letter. Hey, we, USCIS, who have no authority to say whether 
or not ICE is going to exercise their prosecutorial discretion, 
we are giving you a letter that sort of says you might be okay 
for a couple of years. Is that roughly correct?
    Mr. Cuccinelli. Roughly, yes.
    Mr. Roy. And can you cleanup my roughness?
    Mr. Cuccinelli. I mean, that deferred action can be revoked 
at any time.
    Mr. Roy. Right.
    Mr. Cuccinelli. And in circumstances where there might be a 
reason for someone to be in removal proceedings, ICE and USCIS 
talk about those individual cases. They are rare, but they do 
happen, and we coordinate our efforts.
    Mr. Roy. And, again, going back to the beginning, was 
anyone being targeted, any one of these families in question, 
targeted for removal after said letter went out?
    Mr. Cuccinelli. No.
    Mr. Roy. So, putting aside whatever----
    Mr. Cuccinelli. Absolutely not, no.
    Mr. Roy. So, acknowledging the concerns of the families 
receiving the letters, I think everyone acknowledges the 
concern of how that was received. And we are all guilty of 
doing a lot of stuff in a fast-paced environment, like getting 
out and executing, and then going well, maybe we could have 
executed that better. But the question becomes the letters go 
out as a process matter. None of these families were being 
targeted for removal to the best of your knowledge?
    Mr. Cuccinelli. Well, not to the best of my knowledge, no.
    Mr. DeSaulnier. Would the gentleman----
    Mr. Roy. Mr. Albence, to the best of your knowledge?
    Mr. Albence. No, I mean, we wouldn't even know they 
existed. Even that grant of deferred action is not something 
that would have come to our attention when USCIC does that, so 
we don't even know these people exist.
    Mr. Roy. OK.
    Mr. DeSaulnier. Would the gentleman yield just for a 
    Mr. Roy. I would be happy to.
    Mr. DeSaulnier. I appreciate the tone. I think the caveat 
would be precedent. We have heard there is a long precedent in 
the evolution of deferred action. And in this case, this 
family, they have been approved four times before, including by 
this Administration. So, I am agreeing with you, but from their 
perspective, the precedent was what it was.
    Mr. Cuccinelli. I see. May I address that?
    Mr. Roy. Yes, sir.
    Mr. Cuccinelli. So, now understanding what you may have 
meant by ``precedent'' a little better, Congressman, it is 
important to realize each review is a fresh review. And 
particularly in medical circumstances, those evolve, of course, 
and those would be reviewed anew each time. So, perhaps I 
misunderstood your use of the word ``precedent'' previously.
    Mr. DeSaulnier. Maybe we just disagree on perspective. From 
their perspective, previously their attorneys had said you do 
this and this is the likely outcome. So, you do need to go 
through the process.
    Mr. Cuccinelli. Right.
    Mr. DeSaulnier. What changed was the unilateral decision to 
get rid of all deferred action, so that changed the precedent 
is my point.
    Mr. Cuccinelli. OK. Understood. Now I understand what you 
mean better.
    Mr. Roy. And the last point I will make, and I am over my 
time, but then I won't try to take any additional time after 
Mr. Massie----
    Mr. Raskin. Please take your time, Mr. Roy.
    Mr. Roy. It would just be to say the precedent we are 
talking about is a, in my view, flawed precedent. In other 
words, it is a kind of patched-together circumstance to deal 
with a population who is inherently in limbo, and it is not 
affirmatively set out, and so I get a little frustrated. Your 
tone, this has been great. Some, nameless they may be, come 
here to bluster about the evils of what has transpired here and 
to try to impute to Mr. Cuccinelli or to any other members of 
DHS a desire to create harm for people as opposed to have a 
system where the rule of law means something.
    Mr. Cuccinelli. May I suggest sort of a rhetorical 
    Mr. Raskin. By all means.
    Mr. Cuccinelli. Just a thought exercise. So, an obvious way 
to think about this isn't case-by-case. It is asking the 
question for each person, where do you draw the line? How do 
you do that?
    Mr. Raskin. Thank you, Mr. Cuccinelli for that because that 
goes right to my closing thoughts here, and I want to start by 
thanking all the members of the committee for a very productive 
conversation. I want to thank both of you for participating, 
for educating us and participating in what, I think, has been a 
constructive process. I want to thank you particularly, Mr. 
Cuccinelli, for expressing regret about the mistake that was 
made in what you said was the retroactive application of a 
shift in the presumption, I think, and I thank you for that.
    I do want to pose a question about that though, and 
obviously it caused great anguish among the families that were 
affected, and I assume that moved you. I know you to be a man 
with a heart, and so you were moved by what you saw. And, you 
know, this may have looked like it was sort of easy pickings in 
terms of going over a whole series of administrative policies 
where, you know, one could just tighten the leash in some way, 
but suddenly it caused a major furor because of the anguish and 
pain that was effected for the families.
    But what does that mean about going forward given that, you 
know, the compelling facts and circumstances, standard that you 
are operating under? You said there are certain things that 
look clear. We apparently all have a consensus about cancer, 
cystic fibrosis, leukemia, very serious diseases that we have 
heard about from people coming forward. On the other end, I 
think you said--this was almost humorous--aging, that somebody 
was actually granted deferred action because they were aging?
    Mr. Cuccinelli. Oh, I didn't say they were granted.
    Mr. Raskin. Oh, I see. OK.
    Mr. Cuccinelli. I just said we see those applications.
    Mr. Raskin. But would it be your intention, because I did 
look at the question of where your authority comes from. It is 
not a totally made-up of authority. I think that in the June 
2003 delegation to the Bureau of Citizenship and Immigration 
Services from the Secretary of Homeland Security, P was the 
authority to grant voluntary departure and deferred action.
    Mr. Cuccinelli. Yes.
    Mr. Raskin. So, you do have that delegation of authority. 
Presumably you could operate it either on kind of a more 
arbitrary case-by-case, everybody make up their own rule 
standard, or what it seems like you are trending toward now, 
which is to develop certain categories that would strike 
everybody as commonsensical medical compelling need, versus, 
you know, people want to be here to age in place, you know, in 
the United States. Is that you are thinking, that you would try 
to develop----
    Mr. Cuccinelli. So----
    Mr. Raskin [continuing]. Some directives for the people who 
actually make these decisions?
    Mr. Cuccinelli. OK. So, a couple of points, Mr. Chairman. 
First of all, the authority site there in the Homeland Security 
Act is how you trace this back statutorily. It goes to the 
secretary, but the purpose of deferred action is it is 
inherently a prosecutorial discretion, thus my descriptions 
here today. So, and what you point to in the statute doesn't 
provide, other than case-by-case consideration, doesn't provide 
guidance or categories.
    Mr. Raskin. OK. Can I pause you there?
    Mr. Cuccinelli. Yes.
    Mr. Raskin. And then maybe it is a question for Mr. 
Albence. Would you pursue deportation of people who had been 
granted deferred action for a medical purpose? So, do you know 
of any cases where that has happened, and do you have any 
intention in the future of doing that?
    Mr. Albence. I am not aware of any cases in which that 
would happen.
    Mr. Raskin. OK. Fair enough.
    Mr. Albence. Excuse me. I am not aware of any case in which 
that has happened.
    Mr. Raskin. Got you.
    Mr. Albence. I will not say that there is somebody that 
could have been granted medical deferred action, gets involved 
in some sort of----
    Mr. Raskin. I got you. Somebody could commit a crime while 
they were here on deferred action for medical reasons.
    Mr. Albence. Exactly.
    Mr. Raskin. I got you for that. So, but is it your thought, 
Mr. Cuccinelli, that you would try to elaborate and specify 
what some of these circumstances are?
    Mr. Cuccinelli. No, sir. To be clear, from the acting 
secretary, Secretary McAleenan, it is to continue it as a case-
by-case. What we do internally is try, and I heard some 
comments a little different than this, is to maintain 
consistency. And the way we do that is that the 4 people who 
are regional directors, sort of at the top of decision chains 
in the field, talk together about these cases periodically as 
they feel the need--those are not conversations I participate 
in--about cases to make sure that similarly situated people end 
up with similar outcomes, whether it is grants or denials. But 
that is just for consistency. It doesn't introduce any 
standards or measuring stick, if you will, to provide guidance 
as to how these may come out. We don't have any basis to do 
    Mr. Raskin. OK. All right. Well, we might have a difference 
of opinion about that, whether your authority would include 
    Mr. Cuccinelli. I understand.
    Mr. Raskin. The only point I would make, and I appreciate 
what you just said about at least trying to develop 
consistency. But the point I would make is just when we say 
that there is a case-by-case method of decision-making, that 
just means that each of the facts is treated on their own their 
own presentation, but there still need to be rules and 
standards applied for the decisionmaker to decide how the 
decision is to be made.
    Mr. Cuccinelli. And I think that is the nub, you know.
    Mr. Raskin. Yes. Well, okay. Let me just shift to another 
question in my role as chair of the subcommittee. We have got 
to just get on top of the discovery here, which I think we 
should be able to complete in relative short order. And again, 
we feel strongly about this in general because Congress as the 
lawmaking branch of government has the authority to receive any 
information we want in order to make the laws that we want to 
make. You properly chide us for not having comprehensively 
overhauled immigration law, but we can only do it if we get the 
information about everything that we need.
    Mr. Cuccinelli. I can provide you an update on that.
    Mr. Raskin. OK. If you could that would be great, and 
specifically with respect to a couple of things. One is the 
memo that was written on September 9 from Kathy Kovarik, which 
was announced to us, but we have never seen it. So, that is one 
thing that I know we would very much like to get. That was one 
of the things that Chairman Cummings signed the subpoena for.
    The other thing is that you received from Mr. McAleenan on 
September 18 his directives with respect to this matter. And he 
asked you for a memo 30 days after the date, and that passed a 
week or two ago, discussing your implementation of these 
directives. I don't know whether you brought that with you or 
you have----
    Mr. Cuccinelli. I did not. That was just a simple update, 
but that is what----
    Mr. Raskin. So, if we could have that, that would be 
terrific just because we don't have any update about anything 
that has happened at this point.
    Mr. Cuccinelli. So, to be clear, the document request, we 
are still in litigation. The plaintiffs have not dropped their 
    Mr. Raskin. Oh.
    Mr. Cuccinelli. So, our----
    Mr. Raskin. Of course, but that has nothing to do with 
Congress. I mean, the Supreme Court has been clear about that.
    Mr. Cuccinelli. Well, please let me finish.
    Mr. Raskin. Yes.
    Mr. Cuccinelli. What it does have to do with is we have to 
review our materials to know our own position. So, we are doing 
all of that gathering of documents and review now, so all of 
what we can provide we certainly will.
    Mr. Raskin. OK. This is one area of the law that I actually 
know very well, that anyone's requirement to comply with a 
congressional subpoena request for information is not stayed in 
any way by virtue of the existence of other legal proceedings 
or litigation, and we can get you all of the case authority on 
that. So, in other words, we can't wait for cases to be 
decided, appealed, removed, you know, and so on.
    Mr. Cuccinelli. I didn't mean to suggest that.
    Mr. Raskin. Yes.
    Mr. Cuccinelli. It complicates our own review of materials 
as we gather them.
    Mr. Raskin. OK. Well, again, let me just restate. We would 
at least like an answer from you today if you can tell us. When 
will you be able to comply with the subpoena that Chairman 
Cummings signed on the day that he died? It is dated, you know, 
several hours before he lost his life, so I feel very strongly 
about this. Do you know when you will be able to comply?
    Mr. Cuccinelli. I know we are working to comply. I can't 
tell you sitting here now. I would have to revisit it, and I 
didn't do this this morning before I came. I would have to 
revisit with the review team back in the office.
    Mr. Raskin. OK. Can you tell me when you will be able to 
tell me when you can comply?
    Mr. Cuccinelli. Well, we can at least give you at least an 
estimate by the end of today.
    Mr. Raskin. OK. If you could tell us by the end of the day, 
we can get on a timetable. We want and we need that 
information. Mr. Albence, can you also comply with that 
timetable? Could you tell us by the end of the day when you 
    Mr. Albence. So, I can't answer that question. We provided 
our material to the Department on October 20, so at this point 
it is undergoing departmental review. It is outside of ICE's 
hands. Obviously our material is much more limited than what 
Mr. Cuccinelli has or expected to be. So, they are reviewing it 
for deliberative and privileged information, and then when they 
are done with that review, I am sure they will release it.
    Mr. Raskin. OK. Very good. All right. Good. All right. 
Well, actually, are there people with you today who can just 
tell us when that would be?
    Mr. Albence. No, it is with the Department. These are all 
ICE people, so it is with Department general counsel, so that 
would be the entity that would have to answer that question. I 
could ask him and see when they think they will have it 
cleared, but----
    Mr. Raskin. OK. If you could get back to me.
    Mr. Albence. I asked yesterday and got an ``unknown date 
yet,'' so.
    Mr. Raskin. OK. If you could get back to us as promptly as 
possible. OK. Let's see. We have some letters for the record 
that I want to admit, without objection. Let's see. We have 
letters from several disability organizations, the Interfaith 
Immigration Coalition and the New York Legal Assistance Group, 
discussing the consequences of these policy changes for 
children who benefit from deferred action. I ask unanimous 
consent that these letters be entered into the hearing record.
    Without objection, they will be entered.
    Mr. Raskin. OK. And finally, Mr. Cuccinelli, I am seated in 
Mr. Cummings' chair, and so I am mindful of his extraordinary 
career and the fact that he always told us we are here to help 
people. And I have got an opportunity with you here to just ask 
you about one other case that I have been unable to get an 
answer from the Department about, and so I wonder if you would 
indulge me by just listening to this.
    OK. It regards the case of an Afghan national whose name is 
Muhammad Kamran, and he was a U.S. military interpreter for us 
in the Afghan war. He fled Afghanistan with his family under 
threat by the Taliban and was unable to seek entry to the U.S. 
on a special immigrant visa, so he sought entry under 
humanitarian parole. He was denied as a matter of discretion. 
To the best of our knowledge, he served this country faithfully 
and admirably for nearly a decade as an interpreter for U.S. 
military operators, who have written letters in his support and 
in his defense.
    Since fleeing to Pakistan where he is still in hiding with 
his family, he has been beaten up multiple times by Pakistani 
police. Last week, he was arrested by the Pakistani military. 
Advocates for him in the U.S. report that he has been tortured, 
although he has finally been released, but he was subjected to 
torture while he was being held. So, as the result of 
bipartisan advocacy, we have members on both sides of the aisle 
who have been working for him. His case for humanitarian parole 
was reopened, but on August 1, we were informed by you that he 
was again denied on a discretionary basis with the addition of 
the phrase ``lack of credibility,'' but there was no 
explanation of what that meant, and we have been denied the 
ability to have a classified briefing on the matter.
    I am very concerned that Mr. Kamran will be killed or he 
will be disappeared in Pakistan by the forces that are against 
him, and the same fate may await him and his young daughters. 
So, I would like it if you would be able to get clarification 
for the basis of this denial. If there are real facts there 
that show that he or his young children are a security risk, 
then by all means, please let us know. We don't want security 
risks entering the country, but this is a guy who served our 
country with everything that he had, putting his life at risk. 
We have Republican and Democratic members who are asking you to 
take a look at it.
    Would you be willing to clarify his case for us? Would you 
be willing to provide a briefing for us on the status of the 
Special Immigrant Visa Program as it relates to wait times for 
processing and the dropoff that which has been radical of 
acceptance of former interpreters who served with us in combat 
zones. Would you be willing to work with us to see that there 
is justice in this case?
    Mr. Cuccinelli. So, with respect to the individual case, I 
presume there is no privacy waiver from the individual, so I 
would have to find out what I am allowed to share. You know, we 
operate within privacy restrictions ourselves, but I am happy 
to go determine that and turn back around and re-contact you--
    Mr. Raskin. Please do. I mean, his advocates----
    Mr. Cuccinelli [continuing]. With a result.
    Mr. Raskin. Yes, his advocates are asking us to do whatever 
we can to save his life from their perspective. He is someone 
who served with the Afghan government and with our country 
faithfully, honorably. The people who worked with him over 
there are asking us to take a look at his case. We know that 
there has been a dramatic drop in the numbers of interpreters 
who have been admitted to the country, and if that is just part 
of a general tightening of ability of people to get in, I don't 
think it is fair. If there is some reason that he shouldn't be 
admitted, then by all means, please show us that evidence. But 
if you would be willing to meet with us or have someone from 
your staff come and meet with us, then I think we would be 
doing a little bit of fairness in the spirit of Chairman 
    Mr. Cuccinelli. So, let me see how much detail I am 
permitted to share, and whatever the answer to that is, I will 
let you know, report back.
    Mr. Raskin. OK.
    Mr. Cuccinelli. And then we can go from there in terms of 
share what we can.
    Mr. Raskin. I appreciate that. And if there is anything 
else, Mr. Roy?
    Mr. Roy. I will just say I thank the chairman for the last 
10 or 15 minutes, 20 minutes in particular, not to say anything 
about the forum, but of the back and forth and give and take 
and the conversations with our colleague from California about 
how to move forward. So, I appreciate that.
    Mr. Raskin. And I appreciate very much the participation, 
as always, of the ranking member. I understand from my staff 
that he has signed a privacy waiver release, Mr. Kamran has, so 
that is something that presumably we could meet about. You can 
double check with your people.
    Mr. Cuccinelli. That will be very significant.
    Mr. Raskin. I want to thank all of the witnesses today for 
your testimony. I know you have got important business to 
attend to, so we thank you very much.
    Without objection, all members will have five legislative 
days within which to submit additional written questions for 
the witness of the chair, which will be forwarded to the 
witnesses for response. I ask you to please respond as quickly 
as possible if anybody has any followup questions. Mr. 
DeSaulnier, I want to thank you for your endurance.
    The hearing is now adjourned.
    [Whereupon, at 12:46 p.m., the subcommittee was adjourned.]