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the judiciary committee will come to order without objection the chair is authorized to declare a recess of the committee any time. this morning we welcome secretary janet napolitano to the committee for an oversight hearing on the department of homeland security. the department of homeland security was created to protect the country from terrorist attacks and force federal immigration laws and provide disaster response and assistance. dhs also performs important law enforcement and related to intellectual property and child

pornography. as we begin with i would like to pose two questions first affect the half dhs secure nabors. the nonpartisan accounting office has found only 44% of the southwest border is under the operational control of the border patrol. nearly 450,000 illegal immigrants enter the u.s. each year. meanwhile mexican drug cartels are out of control and threatens to spill over into the u.s.. the administration needs to do more to secure the borders and protect the american people. some have claimed what are supposedly the largest number of renewals in history however even president obama said the statistics put out by dhs r. kunkel, a little deceptive and a study by "the washington post" found that the administration has inflated its removal numbers. my second question is how effectively has dhs protected jobs for american workers with

the unemployment rate over 9%, jobs are scarce and millions of american families have been hurt. according to the pew hispanic center come 7 million people are working in the u.s. illegally. these jobs should go to legal workers. and securing the jobs for american workers and legal immigrants should be a priority of the federal government. each time dhs deports a worker it creates a job opportunity for an american worker. worksite in force that actions open up jobs for unemployed american workers. unfortunately the work site in force because of a comedy that under this administration. administrative arrests fell by 70% in 2008 to 2010. grinnell arrests fell by 60% and indictment by 57% and criminal convictions fell by 66%. with millions of americans unemployed it is hard to imagine a worse time to cut worksite the enforcement efforts by more than

half. it is true that dhs has increased the number of companies, employment eligibility, verification forms. however these are questionable benefits. the gao found i.c.e. officials told us because the amounts are so low fines do not provide a meaningful deterrent. the amount of the fines bp in the opinion of some i.c.e. officials so low they believe that employers view them as a cost of doing business making the fines and an effective deterrent and what happens to the workers when it declines to arrest them they go down the street and not on the door to the next employer and take jobs away from american workers. dhs also signaled it may grant administrative amnesty to potentially hundreds of thousands of illegal immigrants currently in the removal proceedings and many of yours that have yet to be placed in proceeding. but we know that when this administration issues illegal immigrants and grants 19% of

them work authorization. how can dhs justify granting work authorization to illegal immigrants when so many american citizens don't have jobs? 23 million americans who are unemployed or can't find full-time work must wonder why this administration puts illegal immigrants ahead of them. citizens and legal immigrants shouldn't be forced to compete with illegal workers for scarce jobs. the administration should put the interest of american workers first. that concludes my opening statement, and the gentleman from michigan, the ranking member of the full committee, mr. conyers is recognized for his opening statement. >> thank you, chairman smith and members of the committee. i join with you in welcoming the secretary of the department of homeland security.

i wanted to start by reminding everybody on the kennedy that we have some hearings about all of these jobs that immigrants are taking what was it, in alabama and georgia, and nobody wanted jobs. they couldn't get -- they can't get anybody for the jobs. and if there is anybody on the committee that thinks among the millions of unemployed that they are looking for labor, please see me immediately after this hearing so i can put that misunderstanding to rest. in the harbor this hearing from my point of view is to ask this one question.

who would say that the immigration and customs enforcement i.c.e. that their time and resources are better spent reading kitchens and fields to deport busboys and farm workers who've been working here for years to support their families usually rather than targeting those convicted of serious crimes or repeat offenders, and i think within the resources of this very important agency we will get the answer to that. now two months ago, the immigration subcommittee of the judiciary held a hearing on the chairman's bill, h.r. 2497.

always loved the title of this bill. hinder the administration's legalization temptation act. acronym halt. two weeks ago that same subcommittee met again to conduct oversight with the director of immigration and customs enforcement john morton. both hearings my conservative friends of the judiciary level essentially the same criticism that the president of the united states refuses to enforce our immigration law and is dead set on legalizing hundreds of thousands of undocumented

immigrants with the stroke of a pen, and it was called back door amnesty strategy and i've been waiting carefully to see if i hear that phrase raised again. and of course this is incorrect. earlier this year director martin of spicy issued a series of memoranda identifying immigration and customs enforcement's priorities, providing guidance on how i.c.e. employees should exercise discretion to carry out of those priorities. the minow is not surprising, and i hope they are not controversial to anyone. given the resources limited that

he has, i.c.e. intends to prioritize, from my understanding of the hearing, the removal of people who threaten our safety, such as terrorists, such as criminals, before focusing on people who pose no such threat. and i will be carefully listening for any objection to that that might occur. no agency or department can do it all. they have to make choices, and we will have some of these choices that the secretary has to make. the department of homeland security and the department of justice are working together putting these enforcement

priorities into action on a department wide basis, and these actions couldn't have come soon be enough. our immigration courts are backed up. we know that. deportation hearings are being sent for, get this, for 2014, and the department of homeland security would act to alleviate this and there is it just makes good common sense. so i close, mr. chairman, that asking us to look at this remember this is the judiciary committee of the house of representatives, and remember that and the two and a half years of this administration we

have deported a record 1 million individuals, one over a million individuals, something that all i am not bragging about, don't get the long. increased worksite enforcement and targeted employers who break the law by conducting on a nine of its, levying a fine, bringing criminal charges pushed for the national expansion of secure communities despite some opposition from some state governments or local law enforcement and even some advocacy groups, and finally come increased criminal prosecution as immigration of france's so much that the illegal immigration after deportation is now the most prosecuted federal felony in the

country. so, i am happy to see ms. napolitano here and welcome her as does all of us on the committee for the discussion that will follow this morning. thank you, mr. truman. >> thank you mr. conyers. our witnesses janet napolitano, secretary of the united states department of homeland security. sorted january 21, 2005, janet napolitano is the third secretary of dhs. prior to becoming secondary common is the public, was in her second term as governor of arizona. while serving as governor she became the first woman to chair the national governors' association and was named one of the top five governors in the country by "time" magazine. ms. napolitano also was the first female attorney general of arizona and served as the u.s. attorney for the district of arizona.

ms. napolitano was born in new york city and grew up in pittsburgh pennsylvania and albuquerque mexico. she is a 1979 graduate of santa clara university where she won a truman scholarship and was a university's first valedictorian. she received a doctorate from the university of va school law in 1983. before entering public office, mr. pellicano served as a clerk for the judge mary m. schroeder on the u.s. court of appeals for the ninth circuit and practiced law in phoenix. we welcome you today and look for what your testimony and please proceed. >> thank you pachauri smith and ranking member conyers and members of the committee for the opportunity to testify this morning. today i would like to update the committee on the progress particularly with respect to the efforts to prevent terrorism and enhanced security secured manage our borders and in force and the minister the immigration law ways. and i think i will begin their.

the obama administration's approach to the immigration enforcement has been widely discussed among those who like to be be the topic including members of this committee. our policies have been simultaneously described as engaging in a mean-spirited and effort to deport record numbers of illegal immigrants, and alternatively described as comprehensive amnesty that it bores our responsibility to enforce the immigration laws. these opposing views are both incorrect and it's my hope that voting for what we can have a civil and at least dialogue about immigration enforcement. here are the facts. overall in the fiscal year 2011, i.c.e. removed or returned nearly 397,000 individuals. the largest number in the agency's history. 90% of the removals fell within one of our priority categories

and 55% or more than 216,000 were convicted criminal aliens, and 89% increase in the removal of criminal aliens from fiscal year 2008. and this includes more than 87,000 individuals convicted of homicide, sexual offenses, dangerous drugs or driving under the influence. of those we remove without a criminal conviction, more than two-thirds of the fiscal year 2011 fell into the prayer the categories of the recent border crossers or repeat immigration law violators. as part of the effort they continue to focus on high priority cases, i.c.e., in partnership with the doj and across the department of homeland security has implemented policies to ensure those enforcing the immigration laws appropriate use of the discretion they already have in

deciding the types of individuals prioritized for the removal from the country. this policy will help immigration judges, the board of immigration appeals and the federal courts to focus on and adjudicating high priority removal cases more swiftly and in greater numbers enhancing i.c.e.'s ability to remove convicted criminals. it will also promote border security as its sharpens i.c.e.'s focus on recent border entrance and allows for the expansion of i.c.e. operations along the southwest border. we have also stepped up our efforts against employers who knowingly and repeatedly hire illegal labor and have taken action to identify the overstays and enhance refuge she screening and also to combat human trafficking. additionally, since 2000 - we have carried out major reforms to the immigration detention system. these reforms assure the health and safety of the detainees in

our custody and allow i.c.e. to maintain a significant robust detention capacity to carry out serious immigration enforcement. .. now, at the same time our

officers have the legal responsibility to remove up lawful individuals from the country. they will also do so according to our priorities but they will also do their job. this administration is committed to making sure that we have a southern border that is safe, that is secure, that is open for business. we are more than two years into our southwest border initiative and based on previous bench marks set by the congress, it's clear that the additional manpower, technology and infrastructure we have added are working. apprehensions have decreased 36% along the southwest border over the past two years and are less than one-third of what they were at their peak. we have matched decreases in apprehensions. apprehensions a rough way how many are attempting to immigrate. we matched decreases in apprehension shuns with increases in drugs caches of

weapons. violent crime in united states border communities has remained flat or has fallen in the past decade. finally u.s. citizenship and services us, cis is continues to provide immigration benefits and services to those legally eligible in a timely and efficient manner by streamlining and modernizing our operations. our priorities are common sense. they enhance public safety, they help secure the border. they promote the integrity of the immigration laws. yet i think we all can recognize that more is required to fully address our nation's immigration challenges. president obama is firm in his commitment to advance immigration reform and i personally look forward to working with the congress in a bipartisan way to achieve this goal and to continue to set prepare rap -- appropriate benchmarks for our success in the future. i want to thing this committee for its support of

our mission to keep america safe. i want to thank the men and women who are are working day and night to pretech and defend our country often at great personal risk. and i look forward to a dialogue with this committee on these important issues or any other issues you wish to raise. thank you, mr. chairman. >> thank you, miss napolitano. i will recognize myself for questions and other members will be recognized. ms. napolitano, my first question is this. dhs declines to local jails. they are released into our communities. the congressional research service says, that under this administration over half of the criminal emmy grants identified 300,000 plus have been released. yet when i ask what crimes these released criminals have been charged with, dhs responded that i.c.e. does not track this data. so we don't even know what crimes were committed by the criminal immigrants that dhs

refused to detain. i'm just wonder if that's the case? do we in fact not determine what crimes have been committed and do we not know what crimes have been committed by those individuals that dhs refuses to detain? >> mr. chairman -- >> it seems so incredible we would be releasing individual without even knowing what crimes they might have committed but i hope there is a good answer? >> mr. chairman, i don't know, i'm not personally familiar with the crs study that you reference. >> right. >> but we detain and have beds at the number that the congress fund which is roughly around 34 thousand beds. there are decisions -- >> my question wasn't about the number released or the beds t was about, do you know the crimes that were committed by those that you refused to detain? >> well, i will look into that, mr. chairman. i will assume, because of my work with i.c.e. and in this field over the past several decades that detention

decisions are made just as they are made in normal criminal prosecutions based on public safety and based on risk of life. >> you don't know whether you know the crimes that were committed or not? >> i don't know exactly how they track but i'll find out for you. >> okay. my information incredibly enough is that you don't know what crimes were committed and these individuals are still being released in effect. second question this that i wrote you in august requesting to be provided list of immigrant criminals that dhs has declined to detain. your staff at i.c.e. and dhs have been cooperative and i appreciate their assistance. i was told that dhs has generated a list of names that was being cleared before it was given to me. instead a letter i received yesterday from dhs's assistant secretary for legislative affairs contained no names whatsoever but simply summary statistics about the secure communities program. do me this was not a good

faith response. so i'm just wondering what happened to the promised cooperation? i would like a commitment from you by 10:00 a.m. next monday i get the information that i was promise and i would like to be delivered by that time and can i get a commitment from you now that i will get that information? >> i'll look into that, mr. chairman? >> you will what? >> i said i will look into that. >> well, let me say to you it has been two months since i requested this information. we had a good relationship with your staff. i was told that the list was available, had to be cleared and now suddenly the list has apparently disappeared. and if i am not given that list as i understood to be promised that list, i will have no choice but to issue a so i hope we can get that list. let me go on to my next question. you heard me mention this in my opening statement. worksite enforcement dropped 70% over the past two years. "ice age"ents are instructed not to detain or remove most illegal immigrants found working illegally in the u.s. these illegal

immigrants can simply walk down the street, knock on the door of another employer and take another job away from an unemployed american worker. immigration suncommittee hearing two weeks ago, i.c.e. director john morton stated illegal workers not detained can obviously continue to try to find employment, end quote. my question is, why does the administration allow illegal workers to take jobs away from unemployed american workers? why do you allow these individuals to walk down the street? why don't you make an effort to detain them and remove them and send them home? >> well, let me if i might address the numbers and go to the detention. first of all, if you only look at numbers in terms of percentages, you are right, the percentage has dropped in terms of workers who are being put into removal proceedings but the base number is very small. i mean, between 2008, before this administration to fiscal 2011, you're talking

about reduction of from between around 5,000 worker removals to 1500. you have to look at that in con squngs with the -- conjunction with the increase in criminal alien removals which we increased almost 100,000 over the same period. >> again i'm not talking about criminal immigrants. i'm talking about -- >> i know you're not. but i'm making this point because we have prioritized and because we are removing more criminal aliens, you're going to see more of those in detention because they're more serious offenders. with respect to the individuals who we find at work sites -- >> madam secretary, that was not responsive to my question. and you didn't answer my question which was why does the administration intentionally allow these illegal workers to washing down the street and take other jobs from americans? why aren't they being detained? why aren't they being removed? >> they are being handled the way they have always been handled, mr. chairman. >> no.

the previous administration did a lot better job of worksite enforcement than this administration. >> well i would just have -- >> you admitted a while ago my statistics is right. down 70% since the last administration. >> that's right. as i tried to explain, let me say it again. if you actually look at the numbers, yes, you are right, if you only look at 70% but it's a small part of removal operation. and next change pour that 3500 diminution, we have increased the removals of criminal aliens who are danger to public safety and -- >> i understand that my time expired. still talking about thousands of individuals taking jobs away from american workers. >> not necessarily but we can discuss that further. >> okay. the gentleman, from michigan, mr. conyers is recognized? >> can i yield to jerry nadler. >> the gentleman yields to the gentleman from new york, mr. nadler. >> thank you. madam secretary there are many serious problems with respect to immigrant detention. i want to focus on repeated transfers of detainees

between heirs facilities. according to june 2011 report by human rights watch two million detainee transfers between 1998 and 2010. often over long distances require use of airplanes. half of all detainees were removed at least twice. these lead to inefficient removal hearings and cost $366 million in transportation alone, fact that should concern my friend on other side of the aisle among others. problems seem to be growing. transfers tripled between 2004 and 2009. now, moving detainees away from where they live impeeds ability to retain counsel often on pro bono basis since they are often removed when removal hearings are underway the entire process bogs down. detainees lose access to evidence as well as friend and family which makes difficult to show to a court in bond hearing they're not a flight risk. this results sometimes in unnecessary and costly detention. now dhs and i.c.e. seem to

recognize that a transfer policy needs reform. in august of 2009, i.c.e. director morton announced a series of changes including the creation of office of detention and policy and planning to revise transfer policy. in october 2009 special advisor to i.c.e. recommended that detainees represented by counsel should not be transferred outside the area unless there are exigent or safety reasons and when this occurs the attorney should be notified promptly. in july of last year i.c.e. locator system so counsel, friend and family could at least locate detainees. despite these steps there still has not been comprehensive change to detainee transfer policy now my questions. madam secretary do you agree we need a change to policies that lead to repeated transfer of detainees to protect due process rights and improve the efficiency of our immigration courts? >> representative nadler, there are a number about of reasons why we want to limit transfers of detainees.

the cost efficiency, access to counsel, access to family members. the practical problem we confront is that we don't always detention beds where we have detainees. and that causes there to be movement. one of the things we're doing, through our office of detention policy is trying to contract for more beds in some of our higher entinty areas so we -- intensity areas so we limit number of movement among our detainees. >> do you have any estimate new policies to appropriately limit transfers will be in place? >> well, it is our policy now to limit transfers. i think the question really is when will we have contracts for more beds? as soon as we can get them we will get them. >> until you have contracts for more beds you can not really limit transfers? >> well we limit them as much as we can. >> do budget cuts negatively impact your act to adopt a more humane and cost effective transfer policy?

>> the congress gives us a certain amount of money. we have to operate as efficiently as possible within the scope of that appropriation. we can not remove 10 million people from this country. we have to make choices. we have to prioritize. but in that conjunction, yes, if we don't have the money to move and if more importantly the justice department, marshals everybody else involved in the system doesn't have the ability to manage that, it is a problem. >> thank you. among many problems relating to these transfers one has struck me was impact it has on detainees ability to be represented by counsel. a june, recent june report from human rights watch says, and i quote, the attorneys with decades of experience told us they had not once received prior notice from i.c.e. of an impending transfer. i.c.e. often relies on detainees themselves to notify attorneys but the transfers arise suddenly and

detainees are routinely prevented from or otherwise unable to make the necessary call. as a result, attorneys have to search the online detainee locate for for their clients new location. once the transferred client is found challenge inherent conducting legal representation across houses of miles can completely sever the attorney/client representative. that is true when same person is transferred repeatedly. quote. that is problem. can you commit to my and the committee you will take whatever steps necessary to try to reduce significantly detainee transfers far away from counsel? in other words the location of counsel should be one of the major, should be determinant in who gets transferred or where? can this be a part of i.c.e.'s new policy on detainee transfers? >> i think it should be one of the factors taken into account. i do think, you know, the fact that we now have a locator when we didn't have

one before, sound like a simple thing but given the number of people who run through the immigration system in a given year, it was a difficult i-t thing to get done because it is a fast-moving system but that will help counsel as well. >> and would you agree that it will abetter practice and policy to at least notify counsel when his or her client is transferred? not make them look around on online system? >> well, i think to the extent possible we should do that. >> chairman's time has expired. >> thank you. >> the gentleman from wisconsin, is mr. sensenbrenner is recognized. >> thank you, mr. chairman. madam secretary no secret you don't like the real i.d. act and you've given numerous statements and speeches that you would like to see the real i.d. act repealed and in its place put something called pass i.d. on the books. that's not going to happen. the suggestion didn't get off the ground in the last

congress. and it has not gotten off the ground in this congress. the current exemption or, extension that dhs has given on real i.d. to the states is now january 15th, 2013. are you going to extend it again? >> representative sensenbrenner, first of all i can not take sole credit for opposing real i.d.. when i was involved with the national governors association it was bipartisan and uniform amongst all the governors that the line in the appropriations bill that was real i.d. did not appropriately incorporate concerns of state officials on how you actually implement and was an unfunded mandate. that being the case, we did work with the governors on pass i.d. unfortunately, for whatever reasons the congress decided they didn't want to take that up. it would have been better to do so. now we have a bill, the governors still are

uncomfortable with implementing. they have budget constraints of their own you. but we agree with the goal of the bill and the goal of the bill of course is to have a more secure, particularly driver's license. so we're working with the states in a number about of them, think 22 now are almost at the point where they would meet real i.d.. others are along the way. >> are you going, are you going to drop the boom on the states that refuse to comply or can't comply as of january 15th, 2013, meaning that the noncompliant driver's license can not be used to enter federal buildings, nuclear power plants, get on a plane during tsa inspection, or is there going to be further delay in this? >> representative sensenbrenner, i can't say right now. there's a year between now and then to work with the states. i think the governors generally agree with the goal of real i.d.. just how you get there.

>> well, they're not going to get unilateral revenue sharing out of the congress on this. so they can increase the cost of driver's license as my state has. but, your real i.d. rules review in your shop only consists of three professional staff members and one administrative support person and as there are more documents that are submitted by the states that are not in compliance, how do you expect to get through that paperwork with just four people working on it? >> well, representative sensenbrenner, if we need to put some more people on that project we will. i have not been informed that we need to do so. >> now, i'm getting back to the question that i asked and i don't think you anticipatesed. is that, if states are out of compliance on january 15th, 2013, are dhs personnel going to be instruct not to accept

noncompliant identification to get into the federal facilities or to get on a plane? >> well, representative sensenbrenner, i really don't like to speculate on things that could happen over a year from now. i'm going to work with the states. we'll work with the states and bring them into compliance if we can. >> okay. when are you going to start informing the states of how and when real i.d. will be inforced? >> we stay in regular contact with the governors, primarily through the nga, about real i.d.. i suspect when they have their winter meeting here in january, that will be one of the topics that we take up with them. >> well, the 9/11 commission was very firm in saying that we have to have secure i.d. after looking at the i.d.'s that the 19 hijackers were able to get for themselves and the longer this administration and the governors that don't want to do this delay this, the more

risk the american public has on terrorists that wants to commit a major act of terrorism. and i spend a lot of time during my chairmanship to try to prevent that from happening. this is still a hole in the system that can be exploited. and it's not due to a lack of congressional action for once. it is due to a lack of implementation by dhs, and it is due to a lack of will by the governors in providing for the safety and security of their driver's licenses. i'm not for a national i.d. card. but the longer this goes on, if there is a major terrorist attack because real i.d. has not been implemented for whatever reason, there will be a huge push here for a national i.d. card. so i think it's in the interest of everybody to make sure that real i.d. is

implemented the way it was written and passed in 2005. thank you. >> thank you, mr. sensenbrenner. gentleman from virginia, mr. scott is recognized. >> thank you, mr. chairman. madam secretary, the alabama law recently passed allowed alabama to inquire into immigration status. is the department of homeland security working with alabama in helping them implement that law? >> representative scott, could you, your mike -- >> alabama, alabama's immigration law, allows alabama officials to inquire as to immigration status. is the department of homeland security working with alabama to help them implement that law? >> not in that sense. we have been working with the department of justice on a challenge to that law. >> okay. is there any way that, and how would that law affect hispanic citizens?

>> you know, i don't know the answer to that question right now. the law has just gone into effect. >> i mean you would have to assume that hispanic citizens would be adversely affected because they would have to be showing i.d. about everywhere they go. other citizens, a situation that other citizens would not have to do. >> i think that should be a real concern, you're correct. >> the prison rape elimination act, has that been applied to i.c.e. facilities? >> yes. we have a zero tolerance policy for sexual harrassment or misconduct by detention officers, be they those who are actual public employees or contracted. >> and how are we doing on that? have there been any complaints of sexual harrassment and illegal sexual activity? >> yes, there are, there are complaints. and when there are, the instruction is that they are

to be explored and they are to make sure if there needs to be corrective action taken, what every that may be, under the circumstance, that's to be done. >> how are we doing in that area? >> my understanding is that we are being very firm in this area. and that we are dealing with those complaints expeditiously. >> are you familiar with the front line expose' from a few weeks ago? >> yes. >> was that accurate? >> no. >> could you give an update on the tsa work with religious groups as far as how people with religious stress can get through security? >> we are working, you know, the issue for us is what to do with those who wear, who have bulky clothing on and particularly bulky headwear. this can affect particular religious groups and religious beliefs. we have a process that we

follow that i think has accommodated both religious group beliefs and our security needs but we continue to have on going dialogues as i think we should. >> within i.c.e. do you have detainees with mental illness that causes problems like people who are incompetent that stay in i.c.e., kind of limbo indefinitely? >> given the number of people that we have in detention at any given time and over the course of a year, we, i'm certain we have some detainees who have mental health issues as well as detainees who of course who have physical health issues. >> what is done for those that kind of are in limbo, those mentally incompetent, that kind of sit there indefinitely? >> well one of the things we are trying to do by the prioritization process and by reviewing the cases

currently on the master docket is to speed up the time by which those in detention can actually have their cases heard. that's one of the impetuses behind the case-by-case review. >> and, do we have people kind of in limbo that are there indefinitely? >> well, there are people in limbo in the immigration system generally. and the fact that there are people in limbo is one of the reasons why we hope at some point in time the congress could take up the overall immigration system and immigration reform. >> thank you, mr. chairman. >> thank you, mr. scott. the gentleman from north carolina. >> thank you, mr. chairman. madam secretary, good to have you on the hill. good to have you with us.

do you, madam secretary, agree with president obama's statement that removal numbers are deceptive and, do you know what he meant by that? i am thinking he may have been referring to voluntary returns. >> no, i think what he was referring to, if i recall, the context of that quotation, representative, was that overall removal numbers are up. as i said we removed 397,000 people last year. more than ever before. but he was explaining that you also have it look at what, what comprised, what was in that number and he was referring to the fact that we have greatly increased the number of criminal aliens that are removed within the context of the overall number. >> well, so voluntary returns would not have been part of that statement? >> i don't know. >> okay. over the length of, madam secretary, of the bush administration i'm told that yearly removals went up in

excess of 90%. will the current administration come close to this rate of increase? >> i would have to check those numbers. my understanding, i don't know where those numbers come from. >> and i don't recall my source. if you will get back to us i would appreciate that. >> yes, sir. >> yesterday, well strike that. last week, you told senator durbin that it cost in the neighborhood of 23,000 to $30,000 to annually remove one. earlier this year however i.c.e. provided the judiciary committee with data indicating a total cost of removal of $12,198. so the disparity is significant. have you seen i.c.e.'s immigration enforcement lifestyle unit cost report?

>> i don't know whether i've seen that report. the number i gave was what it cost to go you there entire remofl, including through the court system that is an estimate of course. i don't know whether the i.c.e. number was with respect to i.c.e., i.c.e.'s part of that only. so we'll get back to you on that as well. >> i would be appreciative to you if you do that. now again, and i'm drawing a blank on my source, i don't recall where i read this or heard it but i've heard that dhs might consider reopening cases in which aliens with final orders of removal have already been removed from the united states. is there any credence to that? >> that would be news to me. >> okay. if you can check that out. >> yes. i don't, i don't think that's accurate.

>> okay. might dhs reopen cases in which final orders of removal have already been removed? you say this, knot known to you? this is unknown to you? >> no. >> okay. last week, again, when you, during your appearance before the senate judiciary committee, that unusual, that absent unusual circumstance, cases with final removal orders will not be reopened. if you would, madam secretary, elaborate what would constitute an unusual circumstance. . .

on the front lines closest to the facts of the cases involved. let me put a two-part question to you. why did dhs and bureaucrats in washington have to do a double check on the work and expertise of those frontline mac law enforcement professionals? >> well, representative, i have left large prosecution offices many times both as a u.s. attorney and an attorney general and it's important to the field for fairness, for consistency to have guidance as to what the prosecutorial priorities are and that's exactly what we've been doing. it's a big field, a lot of agents out there. you're right, they have a lot of expertise. their expertise and they like it, it puts their cases they know where they stand and where the priorities are, it puts them

into an overall framework. >> thank you. i see that my red light has eliminated so i will yield back. >> the gentleman from california. >> thank you mr. chairman and madame secretary for being here with our committee. i want to touch first on a cybersecurity issue. bns, which is the domestic security extension was ordered deployed across the federal government in 2008 by omb and in 2010, the white house said the bns root zone was a major milestone for internet security. on the homeland security website de ns sec is quoted as being of critical importance to securing the federal internet domain.

so here's my question. you think it's important that u.s. government policies towards the internet should preserve the effectiveness of the ns sec and other technology for cybersecurity point of view? >> thank you. >> thank you very much. i want to get into the immigration issue, the detention issue. last week aclu filed a lawsuit accusing i.c.e. failing to protect female detainees from sexual assault by a private prison guard at the detention facility. naim women are specifically identified as having been sexually assaulted by a guard when he transported them out of the facility during a release process without appropriate supervision and countless others may have been insulted. in april this year the national immigrant justice center filed a

complaint with your office for civil rights and civil liberties alleging seriousness treatment of 13 gay and transgendered detainee's, alleging sexual assault by guards and fellow detainees, denial of medical care, use of long term sali terrie confinement -- salter confinement. my colleagues brought this to your attention and the attorney general earlier this year and the understand it's still under review. going back to mr. scott's question about the present rate elimination act. it's my understanding the department of justice explicitly excluded immigration detention facilities from their proposed rule. they seem to be relying on i.c.e.'s detention standards on sexual abuse, but those are not mandatory. they lack the force of law. so i'm wondering if by your answer to mr. space you are

agreeing that that prison rape elimination act ought to in fact be imposed on detention standards and in i.c.e. detention. >> juan come i would obviously have to look at the act, but before making a blanket agreement, but going to the problem that we are trying to address which is if there is inappropriate wrong or criminal conduct it can be in some circumstances criminal by officers against detainees that needs to be dealt with and it needs to be dealt with efficiently, firmly and quickly, and we have a zero tolerance policy for that conduct. >> you inherited an awful mess in terms of detention. when you came in there were a lot of stories in "the new york times" and "washington post" there were in detention and you

brought in an expert to try to can't put some order to it. there was a report the was a pretty good report coming and it doesn't look to me that i guess this is a question that we have actually implemented in that report fully. can you address that? >> i would say we have implemented good measures of that report and we use it as our guide post. we did create a separate office within i.c.e. to deal with the tension. we eliminated a number of the contractors that we were dealing with -- >> let me do this, i see my yellow light on the. i don't want to be rude but i know the chairman is going to gavel me down. perhaps i can follow up with detailed questions i have. i have a final question on how we are going to interact with the new alabama law. as you know, the new law makes it a felony for an undocumented person to engage in any business transaction with a government entity. what that means is if you have a

mother who use on documented and she gets a library card from both of her u.s. citizenship from she committed to felonies. under our detention and removal priorities, the woman that got to library cards would be the worst of the worst to be deported. how are we going to deal with that alabama law and our priorities and the minow? >> the scenario you picked is not in our priority coming into the purpose of the litigation we have undertaken is the number one in principle it is for the federal government to set immigration law enforcement priorities. so we will look beyond the mere conviction? >> we will get the cases individually, guess as other states as well not just alabama. >> thank you to respect the gentleman from texas mr. gilbert.

>> thank you mr. truman and secretary for being here. just for my own edification, did the president get any information or guidance from you or anyone in your department before his decision to support for president mubarak and to assist the rebels and lydia? >> he did not get any information from me or my department to my knowledge. >> you didn't get any knowledge on that, nobody from the homeland security did that? >> no. >> okay. did the president get any information or guidance from homeland security before his decision to pull out the troops from iraq or drawdown in afghanistan? do you assist in that at all in your department? >> and, these are not matters in the purview of the department of homeland security.

>> so they were considered completely related to our own homeland security? >> homeland security covers so many fields that what i would say simply is if the question is where we involved -- was liable -- >> did you provide information that would of been utilized and any of those decisions? >> not that i know of. >> last year admiral mike mullen said the national debt is the biggest threat to security. we have many people coming to the country on visas, some of them illegally who come and get health care and leave without paying. it's an ongoing problem. we are now seeing that there will be americans who are not getting health care as quickly as the need because it appears we are moving to ration care. so it should be a very important issue. we have inquired of the state

department about the application for the visa. they tell us that there is no provision in the application that indicates whether they've been diagnosed with any condition, heart problems, cancer, pregnancy, needed surgery. on the application for the visa. so that isn't considered all when people come in. we are also told by the state department that even though the spouse's name is on the application, they don't normally ever check the spouse's name on the terrorist watch list before deciding to improve the benefits of a visa. do you think there would be a good idea to check the spouse's name on the terrorist watch list or do you concur that it's not worth it? >> i haven't seen with the state department responded to our --

>> that wasn't my question. my question to you is would it be a good idea to check the spouse of a terrorist watch list? one of the things we've been a will to the past several years is unified the databases and search engines in such a way that those kind of security checks can be more easily done. >> if they don't do the checks it is a problem isn't it? >> it could be a problem but -- >> let me move on. do you make the final decision who is put on the counter and violent extremism working group? >> we have an individual in the department who is the lead. >> are you consulted all on who is put in that working group? >> i have not been, mo. it's been a are you aware that the president is a member of the working group, correct? >> i can't answer that. i don't know whether that is an

accurate statement or not. >> you can go look at your own web site and find the documentation. she has been on your working group that countering violent extremism. do you know how many of the members of your accounting violent extremism are members of muslim brotherhood? >> again since i'm not involved in the appointment but if i might -- >> my time is running out, sallai -- >> i have a very serious question that needs to be confronted. are you familiar with -- >> i would like the ability to expand on my answer if that is all right with you. >> i don't have time. i'm running out, and i can't be filibustered. >> well, okay. >> let me ask you. mohammed was a member of the

working group. you promoted him and i have articles here that say use for him and as a member now of your e -- the homeland security advisory group. he has apparently been given a secret clearance. do you know him? >> yes. >> were you aware that he had a secret clearance? >> i believe it for but on the homeland security council gets a secret clearance. >> would you be surprised -- were you aware that he spoke at the big event in texas honoring of the ayatollah khomeini? >> i'm not aware of all the places he is spoken. >> of the time is expired. >> if i could have 15 seconds,

this is critical. were you aware that a week ago today from his home computer he access to the slic database, got information off and has been shopping a story to national media on islamophobia at the governor of texas and the folks there in texas; were you aware of that? >> no. >> i'm telling you what happened. do we need to appoint somebody or will you have that investigated yourself and if so, by whom? >> well, since i don't know the facts i will have to look into the facts. >> so you will be the one to make that call? >> we will have somebody -- it will be myself or someone. >> does it concern you at all that it happened? >> the gentleman's time is

expired. mr. quigley is recognized. >> thank you, mr. chairman. thank you, madame secretary for being here today. as you know, i and the sponsor of the secure travel and counterterrorism partnership program act which would allow you to bring additional country into the visa waiver program by modifying the the primary qualifying criteria for entry. doing that with many others including mr. shavit from the committee. on wednesday october 5th, the house homeland security subcommittee on counter terrorism and intelligence hold a hearing on with the dhs is doing regarding security and safety for international travel. at that hearing mr. heymann testified and spoke to the issue of the visa waiver program and said he thought it would be terrific to expand the visa waiver. he didn't have the technical specifications about the department capability.

but he did say that any changes will be rolled over, roll out over a period of time and they would allow the dhs to meet the necessary requirements. what i've been telling folks about why i support this program is it's not you're father's weisel waiver program that your agency and others have been working hard to increase the security in this program and how it would perform under existing programs and an additional countries. i was hoping that you might speak out about what the department is doing to work on this data and what we might be seeing in the coming weeks and months that would increase our knowledge about who is coming and going under existing programs and under countries like poland which i think should have been part of the program for a long time. >> welcome representative quickly, we would like to provide not only technical assistance on the review of that but support -- you know, poland

has been an ally of ours for a very long time. we have a good relationship with poland. so, that is i think would be a good thing for the united states to do. with respect to the visa waiver generally, one of the things that i would explain earlier, we have been able to do over the past several years is to really make our data systems both biometric more robust in a way that gives us a lot of the security features of the old visa without necessarily having a visa issued. part of it of course is what we have done to incorporate with respect to flights leaving for the united states. part of it has to begin with uniting cbp databases with the tsa databases in a way they were not united prior to 2009.

>> i think you testified earlier to the senate about some of this, and you were stressing by a graphic information to the work you are doing but more important or feasible biometrics could you focus on that for a minute? >> it's looked at particularly for exit. it is extraordinarily expensive and what we have found is by greater use of the biometric data we get to 99% of what you would have with a very expensive cliometrics system. >> in a notte shell can you explain to those new to the issue why countries that participate in the visa waiver program especially under this new information you will be requiring actually makes us safer? >> well because a part of the agreement to engage robie visa

waiver program, part of that agreement is also the agreement to sign other agreements, for a simple, one called the pcsc to the criminal history database. so, in exchange for the visa waiver there are other agreements that we get from the countries in the program. stomachs very good. i yield back. >> the gentleman from texas is recognized. >> thank you mr. chairman. thank you for being here, madam secretary. the gao has reported 40% of the border is somewhat secure, 56% is not secure. do you agree with that statistic? >> i don't think that's exactly what they've said and i've testified to this several times, representative. they were using the phrase operational control which is a term within the border control it's actually somewhat

misleading because it doesn't capture not just the border patrol but the technology and infrastructure that goes along with it. >> so it's not an accurate statement? >> it is not an accurate statement, no. >> who controls the other 56% if we don't have operational control? >> no, we have the responsibility for that entire border, as you know. it includes -- >> so who controls -- >> -- manpower and technology and infrastructure we have put down at the border. it's a very different order than it was even three or four years ago. >> i agree. it's worse. the iranians apparently think our border is less secure than we do. otherwise they wouldn't have gone to mexico or supposedly to smuggle explosives into the united states. what do the iranians know about the cross border traffic or the ever drug cartels that we are missing? in my opinion, the zetas have

access to the united states and back to mexico so it seems like the iranians obviously knows something about the border than we do. the bureau of prisons as the 27% of the people of the federal penitentiary, 27% are for an chameleons. it means they are illegally in the united states would commit a felony. all of those 27%, a fourth of the population of the federal penitentiaries got here some way and they got here illegally to the bureau of the statistics and if the borders so secure with me give you some evidence to the border where i have been numerous times in areas that aren't exactly as safe as you claim. the sheriff's on any given day we will call the sheriff's in the border jail and say how many people are in your jail that our nationals, not criminal aliens

that foreign nationals? >> the most recent one is to have the border counties and the average is about 34.5% of the people in the texas border jail or from foreign countries. now these are cross border criminals. these are people who come in the united states. many of them commit their crimes and go back where they came from and to mexico unless they are caught by the local law enforcement. these are people in jail with immigration violations. based on your experience do you think 34% is a high number of the foreign nationals in anybody's jeal? >> either you or you don't. >> listened. >> i am listening. you listen. answer the question. you know to answer the question and not just ramble so the time expires. do you think 34.5% of the people in jail from foreign countries is a high number or not?

>> the border communities in texas, arizona, new mexico and california have either violent crime rates the same or decreasing in the last five years and dramatically so. they are listed in el paso, austin, san diego along the safest communities in the united states. we have -- >> reclaiming my time, sorry, reclaiming my time. i'm not talking about specific towns. el paso. the crime is in between the ports of entry. it's not necessarily in brownsville were seen diego or in the city of el paso. it is in between. the jails are occupied by 34 per cent foreign nationals. my question is simple do you think that is a high number? either you do or you don't. >> well, if that's accurate -- and i don't know that it's accurate, if it is accurate, it's one of the reasons we

installed secure communities in the border jail's first. >> let me ask you another question. the 20 points deferred prosecution and defense that came out mr. northen testified that there was white house and put on that to you agree with his statement when you testified before that there was white house and put on the 20 points deferred of the prosecution? >> i think it was prosecutorial discretion. because immigration involves the major agencies, dhs and the doj it is entirely appropriate and there was coordination with the white house. >> do you know of statutory authority? not court authorities but statutory authorities for the deferred prosecution? >> congress is passing laws allowing for the deferred

prosecution. prosecutorial discretion, sorry. prosecutorial discretion. >> for the contras, but to order: to, section 1 and three of the constitution. >> of course the constitution does say that the congress is to be responsible for the naturalization and begin the law on the naturalization not the executive branch. if you want to quote the constitution and read that section -- >> article 2, section 3 says the executive branch shall make sure the laws are carried out and that has been interpreted by the u.s. supreme court and by statute to mean -- the executive branch has prosecutorial -- >> i didn't ask about the case, you notice i didn't ask about that. i am asking about constitutional legislative such additional authority to allow the portions of law based on a level. is the statutory authority to do that? the constitution does say -- >> with a minute. i'm talking. the constitution does say the executive branch is to enforce all of the land carefully and

forceful wall of the land and it seems to be the executive branch has given a path to a lot of folks under the guide of the prosecutorial discretion. i will yield back my time. >> mr. chairman, may i respond? >> please respond, sure. >> i would simply say prosecutorial discretion by prosecutors, by emigration has been enforced and then by republican and democratic administrations and it makes sense. >> okay. let me also add and say to the gentleman from texas the gao study he referred to which found that only 44% of the operational control found only 15% of the border was under actual control. so it's a lot less than many people might think. the gentleman from california is recognized. >> thank you, mr. chair.

madam secretary, i want to thank you for moving forward of what the guidelines for i.c.e. officers to use a prosecutorial discretion on these immigration cases, and i think in fact that it uses our available resources to target those which is serious felons, drug traffickers and others who would do america harm. this is just common sense. we sit be using our scarce taxpayer dollars not to deport students, but to primarily convict, to point those convicted of felonies to pose a threat to the public safety and some say that you are doing something new i know that all law enforcement bodies set priorities and that the immigration enforcement agencies are not different. republicans and democrats have called for more discretion in your agency under both republican and democratic administrations have issued policies on and acquired the use of prosecutorial discretion, and

in fact as a longtime prosecutor, you know better than most that you can't enforce the law and prosecute. our immigration court system is a credible the backlog at more than 300 cases, 300,000 cases are pending at any time and immigration judges are scheduling hearings for 2014. so it makes sense that you are now reviewing the backlog dhaka to sort through the cases and isn't it right that code directs you to establish national immigration enforcement policies and priorities and in congress and the appropriations bills have we not directed you to repeat and prioritize the removal of serious criminal aliens and federal programs that specifically target such populations? and in fact in this effort can

you tell me how it enhances your ability to remove people in priority to the agency? >> the answer is yes, congress has given such direction. i don't know the number of the citation, but i think that is accurate. what we are doing if you think about the immigration system in segments, the segment is who is being picked up for removal and that's where we are prioritizing our enforcement efforts see you get operations like a cross check where we pick up thousands of criminal fugitives just a couple of weekends ago. then we have the 300,000 or so cases already on the master dhaka it and it turns out those aren't prioritized all so you get these never ending court states that get pushed back and back as you've referenced. what we are doing is going through those to make decisions as to which should come first in order to facilitate the movement of the detainee dhaka at through

the removal process and it's one of the reasons why we are going to continue to see those numbers go up. >> why is this not amnesty and not a free pass? >> i couldn't hear you with the bell. excuse me? >> why is your effort towards the prosecutorial discretion not an amnesty of claim and not a free pass? >> it's clearly not. it's what law enforcement does on a routine basis which is to evaluate cases on the facts and make decisions as to which one is that the use of the government resources. >> thank you for that. i'm going to turn towards a different topic, and it's on tsa and the racial profiling issue. first i'd like to ask unanimous consent that this letter from the collision can be entered into the record expressing the current concerns about the

treatment by tsa. while this year marks the tenth anniversary of my 11, yet south asians continue to be the victim of discrimination, and here in the judiciary committee heard the testimony of a sikh americans who were pulled out of lines in airports just because they were wearing a turban. they were put in cages on display like some animal, pulled into rooms and interrogated for hours where even their babies were searched, yet nothing has ever committed a terrorist attack in the united states. but when they complain about the racial profiling, they're has been a lack of response from the tsa and when the guidelines are passed down many times they are ignored. both tsa and the the part of homeland security claim to have the complete and redress system however the experience for the travelers have been woefully inadequate, complaints oftentimes go unanswered for several months. and in fact, there was an

instance of one complete i looked at where the response to six months and basically said you don't have any documentation now we met with administrator pistol and he said they were going to have a review of the complete system. i want to know what the status is of that review. we've waited for three months for some kind of system to be put into place the would be more timely. >> yes, there is that review and our civil rights and civil liberties group has been looking into that issue specifically. we have greatly be used the time that it takes to address complaints. we do have outreach to the other communities. i would suggest, however, that we are very respectful of the community and work with them on a number of serious the issue from the tsa security perspective is if there is bulky

headgear or clothing the current technology cannot ascertain whether that maybe something in it that is explosive and they have to find some way to clear that passenger. some of the gentlewoman's time is expired. the gentleman from utah, mr. chavis. >> madam secretary, thank you for being here. you said you disagree with the gao analysis of the percentage of the border that secure. what percentage of the border do you think is secure? >> i think that having lived -- >> i'm just looking for a number. i have to go quickly. >> having lived and worked on the border post of my life i would say it is secure as it has always been. >> you don't have a percentage? >> well, i would say it is very secure. >> okay. when did you first speak with eric holder about fast and furious? >> i don't believe i've ever spoken with eric holder about fast and furious. >> how many agents, since you've taken office, how many of your agents have been killed in the line of duty?

>> too many. >> do you know slic you have any number? >> well, i would have to double check. but i would say at least 12. >> how many guns from tosk and furious operation were detected crossing the border? >> i do not know. >> how many guns from fast and furious were seized at the border? >> i do not know. >> why is it that an operation that big and that important and that much in the news you don't have the details on? >> welcome a representative, as you know, it was an atf operation. >> in 2009 we know of two instances where i.c.e. seized investigating at the request of the atf. are there any other instances where you were asked, in your department, your agency, was asked not to pursue cases that potentially have a conflict with

fast and furious? >> in the wake of your investigation of fast and furious i have been made aware of those instances. i don't think i've been made aware of any others. >> let me go to testimony that you had last week. last week you were with senator grassley. you asked about communication with mr. burke regarding operation tested furious. question for senator grassley have you had communications? your response and i will read it quickly not about fast and furious. when agent terrie was killed was december 14th. i went a few days after to meet with fbi and attorneys who were actually going to look for the shooters. at that time nobody had done for in six of the guns and fast and furious was not mentioned. he went on to say i wanted to be sure those responsible were brought to justice and every doj researcher is brought to bear the topic, so i did have conversations and it would have been december of own mind, i think to that december, ted, about the murder of agent terrie. but the point in time, nobody

knew about fast and furious so that's a different question. and yet, we have documents that show -- and this is a quote -- in urgent firearms trade requested by atf agents on the scene to determine that these firearms came from custody hearing is. why is it that you, as the secretary of homeland security with one of your agents dead on the scene, did not get briefed about fast and furious? >> i do not know. >> how is that acceptable? do you think they withheld that information or is it your responsibility to actually find the information? >> welcome i think the focus, representative chief it's come is we have a did agent and a dead agent killed in a very rugged area in arizona, and the number one thing that was on my mind when i went out there was to make sure that the appropriate resources were being dedicated to that investigation. >> but have guns from fast and furious on the scene. you testified here just last week that there was no knowledge of fast and furious at the time.

you went out of your way and -- deck that's not true. >> i'm not going to comment on that. i don't know the document to which you refer. what i can say i think it's clear from the context is i was speaking to my knowledge at the time and i did not know about fast and furious. >> did you direct -- was there any direction from your department and agency to allow the guns to go across the border that were involved in fasted furious? stood fast and furious was an atf operation. >> if your agent detected what is going south across the border you let them go because it was an atf operation? >> as the two incidents you referred to cover the two i.c.e. incidents, i think they reveal when they picked up guns and ran them or asked atf to trace them come atf came back and said these are part of a larger operation. stand down. after the second incident, in which that occurred, that matter was taken by the assistant u.s.

attorney which is common. that happens in the field. the u.s. attorney said that the atf operation would take precedence. -- the was it the department of homeland security's policy to allow guns to go south to mexico if they were involved in fast and furious? i'm looking for a yes or no. >> no. >> how was it you can make a claim the border is now more secure than ever come in and did the obama administration purposely allows literally to thousand guns to be released knowing that they're going to go to mexico with hundreds of people killed by those weapons, to did u.s. agents and yet you don't even know if we have detected one of those. in fact on june the worry 14th you did detect somebody in new mexico. there were eight guns found and they didn't run a trace on them and you let them go into mexico. i find that absolutely stunning. for you to have to did agents and never have a conversation with eric holder about fast and furious is totally unacceptable,

totally unacceptable. >> the gentleman's time is expired. >> mr. chairman i know representative chaffetz has his opinion on the matter as the tone of the question reveals, but i simply would suggest that no one takes the death of agents more seriously, and also, that one of the reasons that we have not directly dealt with the attorney general on this is he quickly and appropriately to this matter in the hands of the inspector general. thank you paris and the chairman from arkansas, mr. griffin. -- before mr. chairman. madam secretary, i want to talk to you about the memo that has been raised earlier here today. the memo from june and the point in particular factors to consider when exercising prosecutorial discretion. i'm certainly familiar with the concept of the prosecutorial discretion. in my experience that has been

more of a bottom-up discretion exercised by individual prosecutors. that having been said, when i look at the list of factors and the degree of specificity in that list, it strikes me that what they're intended to be this or not it strikes me that it is a road map retaining illegal immigrants coming and it seems to me you can look at this list and meet a few of these categories and have a good chance at being pushed to the bottom of the prosecutorial list. that is particularly so when i look at the draft memo that referred to the gerry that came out of u.s. citizenship and immigration services last year and understand we have had

assurances that a draft memo was just a draft and parts of it were not included in the martin memo. my question is looking at the extensive nature of the list of factors to consider in your experience as a prosecutor have you ever seen, or are you aware of other memos like this in the context of other crimes? for example, in the context of federal crimes of the department of justice or any other crime are you familiar with the memo this extensive that lay out with this specific cities what prosecutorial discretion is because i've never seen such detail and i would be interested to hear your view on that. the department of justice has the u.s. attorney manuel which is to guide the exercise yard

the prosecutorial discretion and it's pretty thick. so there's a lot of their come and also, representative, there is a november come i think -- i have to go back and check the date, i want to say 19 -- it is a memo that lays out the exercise of the prosecutorial discretion and immigration cases and specifies what a significant federal interest is in that connection. that memo has been cited by the subsequent directors of the on ns or i.c.e. as recently as julie miners and the previous administration. >> sure. i would say a couple things. the u.s. attorney manuel certainly leaves of brusquely for individual prosecutors the guidance for domestic prosecute cases. this i have never seen and i would like -- if you can point

to other guidance with this specificity i would like to see it particularly when these factors consider things like whether the person subject to prosecution's spouse suffers from an illness that seems extraordinary when you are deciding whether to prosecute someone for a criminal act. >> if i might explain. >> yes. >> here's what can happen in the immigration context. you have a u.s. citizen spouse who is very ill and requires home care, and the issue is do you deport someone who has been taking care of that u.s. citizen spouse and then put that spells an to the much more expensive health care and allow the spouse to stay in the country. those are the kind of scenarios that need to be adjudicated or

looked at on a case by case basis. >> if you take this list, you can come up with a number of different individual circumstances. certainly most prosecutors know in my experience the difference between prosecuting a petty thief and a terrorist without the specific city here. i can make the case that certain aspects of the dream act are implemented in here not verbatim, but when you read all of the policy documents that relate to this stuff it's not difficult to see if this in my opinion and a lot of people in the second congressional district of arkansas in our opinion this looks more like a policy document, and let me say a couple things. i'm running out of time here. if you look over at the i.c.e. union issued a press release in

response to this these are union members. they said, quote, unable to pass the immigration agenda through the legislation, the administration is now implementing it through agency policy event bypassing congress. now this is a union agreeing with the which doesn't happen now lot. but all in this particular instance i would welcome your comments. >> i would say we are not by passing the congress as much as we would like the congress to address these issues come and in fact would invite that kind of engagement. what we are is suggesting or giving guidance to the field. by the way i met yesterday in chicago with all the area directors for i.c.e. in this area and we went through and talked about the operations that are going on and how they are going to impact public safety and how they want to guide the resources. this is a group that is fully engaged.

they get it. >> let me mention a couple things. it seems to me that a lot of what we see in terms of state legislation and arizona and alabama and florida and virginia and other states that is the path to address immigration issues. it seems to me that that is simply the state's reaction to what they see as the federal government's failure to do its job on the order, not just in this administration, in administration after administration, including the one that i served in in the last one. it seems to me if the federal government was truly secure in the border you would not have to deal with a lot of the state laws barp circulating up to address what folks back at the state see as the federal government failure to do its job

and again, it goes across the administration. but i have one quick unrelated question -- >> i would like the ability to respond to that. >> the gentleman's time has expired. we will let the secretary respond to the question read >> i would suggest first of all that much of the information about the border that is distributed is not in fact accurate and one of the things i'm trying to do is get the accurate information to the congress and invite anyone from the congress to come to the border but secondly, in my judgment i think a number of the states are acting because the congress has failed to act. >> thank you. the gentleman from texas is recognized. >> thank you very much for sharing your time with the judiciary committee this morning. recognizing the challenges of multi jurisdiction for homeland security. i wanted to compliment you on

one aspect of your resume and that is yours graduate of the university law school. one of the best law schools in the country to become a nation. i happened to pass through very couple years and so i wanted to make no of our fellow or common law school and i hope it serves you well as it did for me. let me raise questions and repeat what i heard you say in your opening statement that 90% of the deportations are priority deportations as islanders to the customer. >> for fiscal year 11. >> 55% were criminal alien; is that about the right number? ander looks as if you said that two-thirds were recent border crossers or repeat violators is that accurate? >> two-thirds of the remaining 45% fell within the categories.

>> so i think if we look -- the reason i want to clarify this because many of us that have been advocating for a comprehensive approach to immigration right to defense to the recitation by the administration that they have done more than bush, clinton, it's a recommended deportation. we might take offense because we believe that it might have an impact on the people we believe could readily be, if you will, legalized or given some status through the comprehensive approach. but when you look at the numbers and clarify them many of us would not have a disagreement that this is the appropriate approach to take so i just want to make sure the numbers i want to recite them into the record and i would ask the question is the administration stepping away from its commitment to comprehensive immigration reform? >> not at all. the president wants it. i would like to stand ready to work with congress on a moment's notice.

>> before i go into my questions about the comprehensive immigration reform let me pose a question on the detention facility which you have overlapping jurisdiction. i have worked through my years on this committee and the judiciary on trying to improve the committees, those facilities particularly as it relates to women and children. we've made progress in the past legislation where there are facilities that address the question, women and children waiting for deportation putting families together. it's come to our attention that we have had incidents at the detention facilities impacting. i read an article already, on the assaults by officers in those facilities. are you aware of that and if not, what kind of procedures are in place to protect those incarcerated who are noncriminal who are waiting for action through the court or waiting for action in deportation? the input families and children in particular women.

>> as i explained earlier, we have a zero tolerance policy for any misconduct of that nature. there is a grievance process. there is a process by which we will immediately deal with officials or officers who've committed that kind of conduct. we are constantly auditing or reviewing particularly the facilities that we contract with. we've reduced the number of contractors but to improve the conditions of detention. >> could i ask whether or not you are ensuring sufficient attentiveness and staffing to insure the highest level of protection of those noncriminal -- of r. dee should be protected the dimond criminal families and children who are waiting on a civilian or noncriminal processing. >> i think we are. >> let me proceed with and i would ask if i can follow-up

after the fact even with your office directly or on a specific question in the region in texas but i want to go to the amendment that seems to have caused so much attention and part of it is delineates and let me say that i claim a good relationship with unions from all over the sectors including the union that my colleague just mentioned but we can have differences of opinion, and i appreciate the prosecutorial discretion that's used all the time. one aspect of his delineation and i think it should be noted the memo includes factors the land of time a person is in the united states and circumstances of a rifle military services by a person, the strength of the tie is a contribution to the community and strengthen ties to the home county commissions and whether the person has a u.s. citizen lawful parent child or spouse do you think that is unreasonable? you've been an attorney general

for the state and have prosecuted. do you think that is an unreasonable if you will framework that ties the hands of prosecutors making inappropriate decisions on behalf of the people in the united states? >> that is an important factor to consider given that the congress gives the resources only to remove about 400,000 a year. >> the gentleman's time is expired. >> mr. chairman. >> i have one last question. the gentleman went on and on on the red light and you allowed -- >> most members have been granted an additional 30 or 45 seconds. you have reached but like all the others but we would be happy for you to ask one more. >> thank you so much mr. chairman. there have been a number of legislative initiatives introduced by members of congress upwards of 175, 200 on the comprehensive immigration reform. i want to defend the congress in the sense that there is a body politic of those of us in the house and in the senate the

desire comprehensive immigration reform. i would like to just point to one save america comprehensive bill that was the ortiz bill but in particular come access the legalization where you have a process for those who have been here to access the legalization. is that still a readily acceptable approach to look at that would answer some of the concerns of our colleagues? these are individuals that are working, paying taxes will that be an aspect what we would look at if we ever got in the comprehensive immigration reform? >> yes. but with a clarification, i think because the terms get confused, access to legalization forces access to citizenship, that's something i think what -- >> two distinct points. so the legalization is giving them status while they pay fines and look at how they would process the citizenship. is that my understanding? >> that is, yes, that is a common sense word of the --

>> the time is expired. the gentle man from south carolina is recognized. >> now consider you for a state and federal prosecutor. did you ever approve or sanction investigations that allow the gun walking? >> no, not to my knowledge. spec what would you not allow gun walking? >> i don't think those matters or those kinds of investigations were presented to meet the estimate had they been presented to you there's a reason you don't allow contraband cash and guns to walk. as a former federal and state prosecutor, can you give us those reasons? >> well, i don't like to speculate. >> i'm not asking you to speculate to this but every prosecutor make different decisions and i don't believe i was ever presented with that decision. >> see you can't give any reason not to let contraband walk

outside of the custody and dominion of the law enforcement officer? >> well, i think and, in context in the drug cases or firearms cases or whatever when you are trying to work the case up from below level to the higher levels and put somebody more serious criminal law of the streets, oftentimes you let contraband get into the hands of others. >> and you immediately interdict and arrest them. i've done it for 16 years, madam secretary. you never let drugs, cash or guns walk. you immediately interdict them. when did you learn of the fast and furious for the first time? >> i learned of it after the death of agent terrie. >> when did you learn that the gun walking was part of fast and furious?

>> why was a sometime between his death and the early spring. >> to your knowledge has anyone ever communicated or did anyone communicate with mexican authorities that guns were being allowed to cross our border into mexico and contravention of their gun law? >> i can only speak for the communications the know of, and i know of no such communications. >> when your the united states attorney in arizona did you make your team use of proper rule 35's? >> sure. >> so there is no prohibition the district of arizona from using the same investigatory and prosecutorial tools to be jews and every letter district? >> not that i know of. spec there's no reason that this, quote, drug-trafficking case can be handled like it is handled all the other states? >> i'm not commenting to this one. i'm not second-guessing fast and furious. it's under investigation now. >> everyone else second guest. the attorney general said there were problems. so i'm not asking you to say

anything they haven't already said. do you agree there were problems with fast and furious? >> i thought you were asking me much more specific question. but what i would say is obviously there were problems with fast and furious. >> what were those problems? >> obviously you don't want to let guns with the kind of firepower that we now know were involved to get out of your country. it's been a gas-fired power the only reason you don't allow the guns what? >> there's a number of them if you to cross-examine the -- >> i'm not cross-examining. i am asking you about fast and furious we >> what i explaining to you is that the case itself and the matter in which it was handled is under the jurisdiction of the inspector general. but obviously from the what we know perspective there were problems. absolutely. >> you were the united states attorney in the district of arizona did you ever have the title of the cases? >> yes. >> and those were approved by whom?

>> the court. >> and ultimately before they got to the court they had to be approved by the the part of justice, correct? >> yes. >> for the department of justice to contend the title iii case that they didn't know about fast and furious would be disingenuous at best; correct? >> i just am not going to comment to that. i don't know the specifics. it wasn't within the department of homeland security. >> i am asking is a former prosecutor who did the cases the department of justice has to approve the supplications, correct? >> that is the procedure, yes. >> in those applications is a narrative or summary of the case. >> that is correct. some one of the department of justice had to know about fast and furious 43 to ever have been approved, connect? >> i can't comment. i don't know that there ever was a t3 approved. sprigg if there were a t3 approved and fast and furious, and there were, the departments of justice would have had to have known about it; correct? >> i'm going to leave that for your own investigation, sir.

i'm not going to go comment beyond what i know, and what i know is that after the death of agent terrie, the fast and furious legal became apparent and we became knowledgeable about it. obviously there were problems with the operation. obviously it did not succeed and the inspector general has that under investigation right now. from a law enforcement perspective, from a law enforcement perspective, yes, fast and furious is very troublesome. >> mr. chairman, if i could have just an additional 30 seconds, which may be the cost on this morning -- >> without objection. >> madam secretary, my point on fast and furious is that there were not just problems. it was called from the inception. in the investigation, the gun walking across the border is small in its inception. so what i take offense that is

when the attorney general and others on the other side of the aisle say that only when problems became apparent this investigation was a problem from the very beginning. i will ask one final question because you've mentioned twice this was a atf investigation. it was in fact a ocidef investigation which means what as a former u.s. attorney? >> welcome it means -- now you are into something i don't know anything about to be i don't know if a ocidef handled by an ausa i really don't know that. >> if it were then there would be more than one federal law enforcement agency involved, correct? >> i just can't comment to that. i just don't know the answer to that. >> fair enough. >> the gentleman's times expired. ..

>> that witness has no control and just has to respond to the questions, sometimes the insinuations, sometimes which can border, which can be political in tone, and totally inappropriate, but you have endured through this process. in fact, part of your job, and i know it's not probably one of the most pleasant aspects of the job, but you have acquitted yourself well before this committee, and i appreciate your service to the nation, and i'm

not going to blame every problem that exists as far as immigration or federal law., i'm not going to blame that on you or make you appear to be responsible for that nor will i infer that the obama administration is immune to the normal prospects that prop up in the courts of the federal government's dealing. i mean, there's going to be mistakes made and bad choices made, and some good things too. those things should be pointed out, but i will say that you in 1999, the department of homeland

security itself was not created until three years later, but back in 1999, we saw members of congress express frustration with the ins, about the issue of prosecute discretion, and when we heard today when chairman talked on that topic, he specifically urged the ins to use "unjustifiable hardship". the following year, according to anthony louis' op-ed in the "new york times," chairman smith complained that the ins was spending time on cases that cry out that, "on cases that cry out

for compassion." instead of focusing research on "hardened criminals or hardened criminal aliens." i'd like to enter both the letter and op-ed into the record. is that permissible? >> it will be made part of the record, but i want to say the gentleman from georgia might want to put the context of the letters in context. they were referring to legal immigrants or legal and also was referring to not making general categories of individuals, but going through on a case-by-case basis. i don't 79 -- to have a misimpression. >> and no intent to do that, mr. chairman, and the letter and the article will speak for themself, and you have made --

you have doily noted your position for the record, and i look at the immigration laws that we're creating unfairness and unjustice in 1999, and they look like the same -- they look like the same laws that we're dealing with today, small wonder that the need for prosecution discretion has not diminished during that period. you have spoken about the need for discretion in order to meet smart law enforcement priorities, but what about the cases that "cry out for compassion" to use chairman smith's words? >> well, thank you, and thank you for your opening comments, and i would simply say that nothing in the memo suggests a categorical amnesty for any group. what it suggests is that there

be a case-by-case evaluation of the individual circumstances and there are very clear cases that require immediate deportation, very clear cases where we know the nation's public safety evolved, there's repeat violaters, we have fugitives, but there are other cases that are different in context and kind and part of having a reasonable immigration system is the act to look at those. >> thank you, and i'll yield the balance of my time. >> thank you, mr. chairman johnson. we'll now go to the genten woman from florida, ms. adams. >> thank you, mr. chairman, and thank you, mr. secretary. i'm listening with great interest as being in law enforcement for four year, and

i'm interested in what you said about alabama and that you were part of that, and you said over and over again this morning you don't have the funds so you have to prioritize, so why not accept state's help to be a force multiplier for your agency? >> well, we do, and let me tell you the most important way that states help us right now and localities is through secure communities. that is ab important tool as we've been able to expand it to help us identify criminal aliens in the nation's jails and prisons. >> i listened as many of my colleagues asked questions, and the one in particular had said something, and i was watching your reaction, and i was surprised that you said, if, in fact, that's the problem, then we need to look into it, and, you know, had something been compromised, and if someone's dropping the story, that concerns me that you didn't step

up and say we'll put gnarl security over any type of politics, and i will look into it. will you commit to look into what was brought up earlier? yes or no? >> well, i apologize. i don't remember specifically what he brought up, but, yes, if there's national security issues or important policy issues -- >> we need national security above politics at all time. >> of course, of course. someone else said -- >> can you yield for just a moment. >> i will in a minute. i want to get through my questions. you talked about limbo indefinitely, but, in fact, isn't it true that if there's deportation status and their home country does not accept them, you release them back into the communities? >> well -- >> based on ruling 1234 >> there's a supreme court case which is a due process case which if the home country cannot accept or will not accept gives

us a six month detention period. >> and, in fact, some of the people have come back into communities commits heinous crimes like one who killed a young woman, i believe after china refused to repatriotize him, and they have still not located her heart and lungs, and so i mean, another one killed a police officer in fort myers after being released into the community because the home country would not take them. in section 243d of the nationality act requires the government to sanction countries that refuse to issue visas or both to nationals of the country until it takes the aliens back. you, now, dhs, is supposed to order or give the country that refuses to take back to the

secretary of state shall order that visas to its citizens be suspended. how many have you recommended under section 243d? >> oh, we have not -- what we have done is work with their countries that refuse to accept their aliens back -- >> so you tell me you have not done any? >> not that i'm aware of. >> and so we could possibly have -- >> if we're talking about the same thing. i'm having -- >> well, it says that these are people who were pending removal, but their home countries are not taking them, you have the ability to recommend that they, you know, upon notification by the attorney general now given by dhs that a country refuses to take back aliens, the secretary of state shall order further visas to the citizens to be sus

-- suspended. how many times has that happened? >> i have to look into that. >> it seems to me, madam secretary, you said you had not, and now you're looking into it, i listened to that all morning long, and i'm amazed with your answers knowing you're coming before this committee, you have death of agents in fast and furious, iran coming across the border because they see what you do not, that we have an open border, and we have death of our citizens and law enforcement officers based on people being -- not because their own home countries will not take them, but because they are relaced into our country after committing crimes, and you're telling me you don't know now -- first you said you hadn't done it, and now you don't know if you recommended there be a diplomacy push forward on the countries because now --

>> well -- >> let me finish. >> i want to be clear. in this comes, i'm trying to provide accurate information as i can -- >> correct. >> what i'm suggesting to you have we have been working through the state department with the countries that refuse to accept illegal aliens back, but i don't know for other reasons -- >> tell me this -- have they not dealt with this dually enacted statute? >> again, that's a got-you question. we're working with the state department with some of the countries that routinely refuse -- >> that's not a got-you. these are statutes. what i've heard from my members 1 they asked you several times have you been complying with statutes or is there a statute that you can rely on for not complying to statute.