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U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: 

PRIORITIES AND THE RULE OF LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 12, 2011 

Serial No. 112–66 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

OCTOBER 12, 2011 

Page 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 9 

WITNESSES 

John Morton, Director, U.S. Immigration and Customs Enforcement 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 13 

Chris Crane, President, National ICE Council 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 51 

David B. Rivkin, Jr., Partner, Baker & Hostetler, LLP, Washington, DC 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 60 

Ray Tranchant, Director, Advanced Technology Center, Tidewater Community 

College 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

Paul Virtue, Partner, Baker & McKenzie, LLP 

Oral Testimony ..................................................................................................... 71 

Prepared Statement ............................................................................................. 74 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 4 

Letter from Robert M. Morgenthau, of Counsel, Wachtell, Lipton, Rosen & 

Katz, submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 23 

Memorandum from John Morton, Director, U.S. Department of Homeland 

Security, submitted by the Honorable Ted Poe, a Representative in Congress from the State of Texas, and Member, Subcommittee on Immigration 

Policy and Enforcement ....................................................................................... 28 

Excerpted Material from hearing held on July 26, 2011 on the ‘‘HALT Act,’’ 

submitted by the Honorable Zoe Lofgren, a Representative in Congress 

from the State of California, and Ranking Member, Subcommittee on Immigration Policy and Enforcement .......................................................................... 89 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement/Memo of Janice Kephart, former Counsel, 9/11 Commission, National Security Director, Center for Immigration Studies .................. 100 

(1) 

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: PRIORITIES AND THE RULE OF LAW 

WEDNESDAY, OCTOBER 12, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 3:05 p.m., in room 

2141, Rayburn House Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, King, Gohmert, Poe, 

Gowdy, Ross, Lofgren, Jackson Lee, and Waters. 

Staff Present: (Majority) Dimple Shah, Counsel; Marian White, 

Clerk; and (Minority) Tom Jawetz, Counsel. 

Mr. GALLEGLY. Call to order the Subcommittee. 

Over the past year the Obama administration has made numerous announcements seeking to grant benefits to illegal immigrants 

and other removable immigrants without approval from Congress. 

These announcements are in defiance of both the constitutional 

separation of powers and the will of the American public. They are 

part of the Administration’s ongoing efforts to grant amnesty to illegal immigrants. 

From the onset this Administration has failed to adequately enforce our immigration laws. What makes this worse is that the supporters of the comprehensive or targeted amnesties for illegal immigrants have consistently failed to win approval from Congress or 

gain support from the American people. Since comprehensive immigration reform has failed to pass in the legislative branch, the 

Obama administration has now decided to implement various programs that will benefit potentially millions of illegal immigrants. 

What the President is doing is unfair to the 26 million American 

workers who are unemployed or underemployed. Amnesty is also 

unfair to those who are waiting to legally immigrate to the United 

States. 

These administrative decisions will only attract more illegal immigrants looking for the same opportunity and take more jobs from 

American workers. This policy makes no sense during a time of 

economic hardship and high unemployment. 

It is Congress’ job to create immigration policy and it is the 

President’s job to enforce it. The Administration’s discretionary 

power should be used only on a case-by-case basis in compelling 

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tion opened the door to the possible amnesty of 300,000 immigrants 

who are currently in the process of being deported. This is a clear 

abuse of discretion. 

I, along with other Members, have urged the Administration to 

reverse what we consider this misguided policy. 

At this point I would yield to the gentlelady, my friend from California, the Ranking Member, who agrees with me on almost everything. 

Ms. LOFGREN. Thank you, Mr. Chairman. It wasn’t long ago, just 

11 weeks, that this Subcommittee held a hearing on H.R. 2497, the 

HALT Act. That bill was a response to the series of ICE memos 

that laid out enforcement priorities and provided guidance on the 

use of agency discretion to best meet the priorities. 

At that hearing we examined the memos closely and we saw that 

they contained nothing new, nothing surprising. The memos are actually just common sense. 

We know that Congress has dramatically increased the resources 

available to enforce our immigration laws, broken as they are, and 

enforcement of those laws is at an all-time high, with respect to removals, criminal prosecution of immigration violation, worksite enforcements actions, fines, jail time and assets at the border. In fact 

as of 1 month ago the Administration had removed 1.06 million 

people from the country in just 21⁄2 years. At that pace the Administration will remove many more people in one term than President 

Bush removed in his full two terms, 8 years, as President. 

Still the reality is we don’t have the resources to remove all 11 

million undocumented immigrants even if we all agreed that that 

was a smart and humane response to the current situation. Given 

that we will always have limited resources, it just makes sense 

that we focus first on people who would do us harm, terrorists and 

serious criminals, before we turn our attention to the undocumented spouses of military personnel and innocent children who 

were brought here years ago through no fault of their own. 

My Republican colleagues call the ICE memos administrative or 

backdoor amnesty. That is hyperbolic and a little bit partisan because the rhetoric may work in some of these presidential debates 

but it isn’t really the truth. These memos setting immigration priorities are not unprecedented despite what some of my colleagues 

have said, and the HALT Act I believe is just more of a partisan 

attack. It sunsets at the end of the President’s first term and would 

deny him the same authority that every President has always had. 

The guidelines for the use of prosecutorial discretion date back 

to an INS General Counsel memo from 1976, a year after I graduated from law school. Additional memos have been issued in the 

intervening years in both Republican and Democratic administrations, and these earlier memos are the predecessors of the memos 

the majority is complaining about today. The majority never said 

anything about those earlier memos or the factors listed in those 

memos until now. 

The guidance that most closely resembles what ICE issued earlier this year came in November of 2000, from then INS Commissioner Doris Meissner. At the HALT Act hearing we reviewed the 

origins of the Meissner memo, but it is worth reviewing once more. 

3 

In 1999, a bipartisan group of 28 Members of Congress sent a 

letter to former Attorney General Janet Reno stressing the importance of prosecutorial discretion in the immigration context and 

asking her to issued necessary guidance. In that letter the Congressmen cited widespread agreement that some deportations were 

unfair and resulted in unjustifiable hardship, and they asked why 

the INS pursued removal in such cases when so many other more 

serious cases existed. They urged for a priority of enforcement resources, asking the Attorney General to develop INS guidelines 

that use prosectorial discretion similar to those used by U.S. attorneys. That letter was signed by the current Chair of Judiciary 

Committee, Mr. Smith, as well as many other very conservative 

Members of the House, including former Chair Henry Hyde, former 

Chair Jim Sensenbrenner, Brian Bilbray, Nathan Deal, Sam Johnson and David Dreier. 

During the hearing we had, Mr. Smith argued that his 1999 letter wasn’t relevant because that letter asked for discretion on a 

case-by-case basis and even then only for lawful permanent residents. But with respect to the first point it is baffling because, as 

Director Morton I am sure will tell us, the prosecutorial discretion 

memo says that ICE officers, agents and attorneys should always 

consider prosecutorial discretion on a, what, case-by-case basis. The 

decision should be based on the totality of the circumstances. And 

the requirement that had the discretion be exercised on a case-bycase basis is mentioned three times in the two memos under scrutiny. 

As to the second point, I have to say that any fair reading of 

Chairman Smith’s 1999 letter would show it is in no way limited 

to lawful permanent residents nor should it have been. I think that 

it is ironic that the Chairman’s 1999 letter really set in motion the 

chain of events that results in the memo we are discussing here 

today for a second time. 

However, I think there is an even deeper irony. The 1999 letter 

argues for discretion to consider hardship when initiating or terminating removal proceedings. But the letter fails to acknowledge 

that the 1996 changes to the immigration law that were championed by Chairman Smith were largely responsible for the cases 

of hardship featured in the letter. 

Since that time, we have done virtually nothing to reform our immigration laws, even though they are in need of it. Small wonder 

that we continue to have unjustifiable hardship and that we need 

to review these cases on a case-by-case basis. 

And I would ask unanimous consent for my entire statement to 

be submitted into the record. 

[The prepared statement of Ms. Lofgren follows:] 

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Mr. GALLEGLY. Without objection. I would just like to clarify my 

earlier statement; not always but I appreciate my good friend’s 

comments. And we will move along. We have some very distinguished members, witnesses on our panels today. Each of the witnesses’ written statements will be entered into the record in its entirety. And I would ask that each witness try to help us abide by 

the time limits so everyone will have an opportunity to ask questions and we will get to everyone today. 


70670A-5.eps
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Our first—I see the Chairman of the full Committee has arrived. 

Mr. Smith, do you have an opening statement? 

Mr. SMITH. Thank you, Mr. Chairman, I do. Sorry to be late, I 

am coming from another Committee hearing. 

Immigration and Customs Enforcement’s primary mission is to 

promote homeland security and public safety through criminal and 

civil enforcement of Federal immigration laws. ICE is also tasked 

with enforcement of U.S. intellectual property laws, and this Committee has jurisdiction over both. 

While I appreciate ICE’s intellectual property efforts, this Administration doesn’t often take enforcement of ICE’s immigration 

laws seriously enough. 

Congress has voted against amnesty for illegal immigrants several times in recent years. But this Administration seems committed to backdoor amnesty through administrative action even if 

it can’t get congressional approval. 

Over the past year the Obama administration intentionally allowed illegal immigrants to remain in the United States. 

For example, the Administration caved to pressure from liberal 

immigrant advocacy groups and announced ‘‘changes’’ to Secure 

Communities. This program keeps our neighborhoods safe by identifying illegal and criminal immigrants in police custody who have 

been arrested and fingerprinted. 

The changes made to Secure Communities open the door to allow 

illegal and criminal immigrants to avoid deportation. 

Specifically, Director Morton issued two memos to agency officials about how to exercise blanket prosecutorial discretion when illegal immigrants are apprehended. Such authority is acceptable 

when exercised responsibly on a case-by-case basis, but Administration officials are using this power in mass use and abusing this 

authority. 

Two months ago the Department of Homeland Security announced they will ensure that ‘‘appropriate discretionary consideration’’ be given to ‘‘compelling cases with final orders of removal.’’ 

According to the Administration, this review applies to 300,000 

pending removal cases. This means close to 300,000 illegal immigrants could stay and work legally in the U.S. Why does the Administration continue to put the interest of illegal immigrants 

ahead of unemployed Americans? 

The policies set forth in the ICE memos and DHS announcements claim to allow ICE to focus on immigration enforcement priorities. But that is just a slick way of saying they don’t want to enforce immigration laws. ICE has shown little interest in actually 

deporting illegal immigrants who have not yet been convicted of 

what they call ‘‘serious’’ crimes. 

With its memos and announcements, the Administration is sending an open invitation to millions of illegal immigrants. They know 

that if they come here illegally, they will be able to stay because 

immigration laws are not enforced. 

Administration officials continue to brag about their ‘‘record deportation numbers.’’ But several sources, including The Washington 

Post, claim the numbers are inflated. Even the President has stated that the numbers are ‘‘deceptive.’’ 

10 

The Obama administration has all but abandoned worksite enforcement efforts. Over the past 2 years worksite enforcement efforts fell 70 percent. Their lack of enforcement allows illegal immigrants to fill the jobs that should go to unemployed American workers. 

The Administration claims that they have increased the number 

of employer audits. But audits do little to discourage illegal hiring. 

And employers consider fines often to be just the cost of doing business. 

Even when there is worksite enforcement action this Administration rarely arrests the illegal workers. The workers are free to go 

down the street to the next employer, and unemployed Americans 

lose out on their jobs. 

While there have been successes in the area of intellectual property for ICE, the Obama administration is on the wrong side of the 

American people when it comes to enforcing immigration laws. 

According to a recent poll, two-thirds of the American people 

want to see our immigration laws enforced. But the Administration 

continues to put illegal immigrants ahead of the interests of unemployed Americans. 

Thank you, Mr. Chairman. I yield back. 

Mr. GALLEGLY. I thank the Chairman. As I started to introduce 

our first witness today on Panel I, Mr. John Morton is Director of 

the Immigration and Customs Enforcement, better known as ICE, 

at the U.S. Department of Homeland Security. ICE is the second 

largest investigative agency in the Federal Government. Prior to 

Mr. Morton’s appointment by the President, he spent 15 years at 

the Department of Justice and served in several positions, including Assistant U.S. Attorney, Counsel of the Deputy Attorney General and Acting Deputy Assistant Attorney General of the Criminal 

Division. 

Welcome, Mr. Morton. 

TESTIMONY OF JOHN MORTON, DIRECTOR, 

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 

Mr. MORTON. Good afternoon, Mr. Chairman, Ranking Member 

Lofgren, Chairman Smith, Members of the Subcommittee. Thank 

you very much for the invitation to testify before the Subcommittee 

on the subject of ICE’s recent enforcement efforts. 

Let me start briefly with our fiscal year 2011 highlights. While 

we are still verifying the final numbers, the preliminary results of 

ICE’s enforcement efforts for fiscal year 2011 are quite strong. I anticipate we will have removed about 397,000 people this past fiscal 

year with a continued emphasis on our highest priorities: Public 

safety, border security, and the integrity of the system. Indeed, 

over half of the individuals we removed this past year will have 

had a criminal conviction. The majority of the remainder will have 

been recent border violators, immigration fugitives, or illegal reentrants. 

A few points of particular interest for the Subcommittee: we 

maintained an average of 33,400 beds a day, the highest level of 

detention in our history and the first time we have largely met our 

congressionally mandated average of 33,400. This level of detention 

has allowed us to remove on the order of 216,000 offenders this 

11 

year, another record and an 89 percent increase over fiscal year 

2008. 

Pursuant to Congress’ direction to identify criminal offenders in 

the Nation’s jails for removal, we deployed the Secure Communities 

Program in nearly 1,600 jurisdictions in 43 States, including every 

county along the Southwest border, and assuming we receive continued funding for the program from Congress, I expect we will deploy Secure Communities nationwide by 2013, marking the first 

time we will have a truly comprehensive system to identify criminal offenders in our Nation’s jails and prisons. 

We have also created a permanent partnership with the Border 

Patrol to significantly improve the Border Patrol’s ability to deter 

illegal immigration along the Southwest border. Under this partnership Mexican nationals apprehended by the Patrol are transferred to ICE for detention and removal through a State other than 

the one in which they were apprehended. Our initial analysis suggests that this significantly disrupts smuggling flows. We have 

done about 37,000 of these lateral removals this year. 

In addition, our felony prosecutions for illegal reentry are at an 

all-time high, 10,000. And on the worksite enforcement front we 

have conducted nearly 2,500 audits, arrested 217 employers and 

managers, and levied $6 million in civil penalties, all enforcement 

records. We have also had another strong year in terms of criminal 

investigations, and I think it is very important for everyone to remember that ICE is deeply involved in criminal enforcement in addition to immigration enforcement. Indeed, as the Chairman mentioned, we are the second largest investigative agency in the entire 

Federal Government, behind only the FBI, and we investigate everything from child pornography and sex trafficking to export and 

import violations, drug trafficking, counterfeiting and piracy and 

transnational gangs. We have 7,000 special agents throughout the 

United States and 47 countries overseas. We made over 30,000 

criminal arrests this past fiscal year. 

A few words on prosecutorial discretion. On June 17th, I issued 

a memorandum to our senior managers providing guidance on the 

exercise of prosecutorial discretion. This, as Ms. Lofgren noted an 

earlier memorandum issued by the agency, is not a prelude to mass 

amnesty. They are not an effort to suspend enforcement of immigration laws. On the contrary, they are simply a straightforward 

effort to ensure that our limited enforcement resources are focused 

on the Department’s highest enforcement priorities; namely, national security cases, criminal and drug border violators and those 

who game the system. 

Even though the agency funding sought by the President a appropriated by the Congress is at an all-time high, DHS simply does 

not have the resources to charge, detain and remove all of the 

aliens in the country unlawfully. Instead, like any other law enforcement agency, we have to focus our resources and efforts on 

higher priority violators. This doesn’t mean that we are suspending 

enforcement for whole classes of individuals. We are not. We are 

simply exercising our discretion on a case-by-case basis in very low 

priority cases so that we can do more to remove criminals, secure 

the border and sanction those who game the system. This discreVerDate Aug 31 2005 14:13 Jan 18, 2012 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\101211\70670.000 HJUD1 PsN: 70670
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tion does not confer permanent status on anyone nor does it prevent the arrest, detention or removal of anyone where needed. 

Let me close by noting how proud I am of the work of the men 

and women of ICE this past year. Not only have they achieved numerous enforcement records, we have done so in the context of an 

unsettled national debate on immigration. As the Secretary recently noted speech at American University, DHS is often criticized 

of being either a mean spirited enforcer pursuing record levels of 

removal or a lax enforcer engaged in administrative amnesty. Neither criticism is true. Instead, we are simply trying to pursue a 

thoughtful set of enforcement priorities in the context of limited resources and a law that needs reform. 

With that, I thank you, Mr. Chairman. 

[The prepared statement of Mr. Morton follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Morton, and for 

watching the light. It gives us all a chance at the plate. 

Mr. Morton, you mentioned, I believe the first start of your statement, this year you have removed 397,000 illegal immigrants. 

Mr. MORTON. That is correct. 


JM-8.eps
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*The Subcommittee received the following reply from ICE in response to Mr. Gallegly’s question: 

ICE response: In fiscal year 2011, 499 Notices of Intent to Fine were issued. 

Mr. GALLEGLY. Can you give me your definition of removal? 

Mr. MORTON. Yes, the agency counts formal removal, that is, 

people removed pursuant to a formal order either issued by an immigration officer or by an immigration judge; and since the previous Administration we also count voluntary returns. 

Mr. GALLEGLY. Well, the thing I want to make sure that we are 

clear on is that, to start with, isn’t it true that without counting 

the voluntary returns the actual removal numbers dropped dramatically? 

Mr. MORTON. If you would remove voluntary returns from the 

total, obviously the total would be less. 

Mr. GALLEGLY. Those removed voluntarily, are they physically 

escorted out of the country or are they given a notice to just leave? 

Mr. MORTON. No. In most instances voluntary returns are under 

the control of the government. 

Mr. GALLEGLY. Does that mean that they are physically taken to 

the border or to the interior or put on the plane and verified that 

that is the case? 

Mr. MORTON. In most instances, yes, the law does allow both, 

particularly in the context of formal removal, people to be removed 

without being under—— 

Mr. GALLEGLY. You mean voluntarily? 

Mr. MORTON. Well, there is two. There is voluntary return and 

what is known as voluntary departure. Two different things, same 

basic concept. Certainly instances. 

Ms. LOFGREN. Mr. Chairman, that microphone is not working. I 

wonder if we could use—there is something wrong with it. 

Mr. GALLEGLY. Of the 397,000 removed—to me removed means 

they are no longer in country—of the 397,000, can you give me 

your best estimate of how many physically left the country and 

how many physically remained in the country at least without 

verification that they had left? 

Mr. MORTON. All of those individuals, Mr. Chairman, have been 

removed from the country under government control of one kind or 

another, departure has been verified. In most instances it was done 

literally under the government’s physical control; in certain instances they left on their own. 

Mr. GALLEGLY. On these job site—I was going to go back here 

and look—you cited numbers of how many actual job site inspections you did this year. 

Mr. MORTON. Yes, sir. 

Mr. GALLEGLY. And you mentioned how many employers had 

been fined. And I think you mentioned how many actual people 

had been removed. I want to make sure we get to that number removed and physically—how many employers were fined? 

Mr. MORTON. The total number of the fines was 6—a little over 

$6 million. 

Mr. GALLEGLY. How many individuals? 

Mr. MORTON. I don’t know the answer to that.* 

Mr. GALLEGLY. We have $6 million that we received in fines. 

Mr. MORTON. In civil penalties levied by the agency. 

22 

Mr. GALLEGLY. And how many did that represent in actual removals from the country? 

Mr. MORTON. We removed, we arrested about 1,500 workers from 

worksites this year. 

Mr. GALLEGLY. Of the 1,500 that were arrested, how many were 

removed? 

Mr. MORTON. Some of them are still in proceedings, so I can’t 

give you a hard answer on that because when we arrest somebody 

obviously we have to put them in immigration proceedings. 

Mr. GALLEGLY. You remember the Chipotle incident? 

Mr. MORTON. I do. 

Mr. GALLEGLY. And there were significant fines. 

Mr. MORTON. That case is still ongoing. 

Mr. GALLEGLY. Okay. How many people that were—I understand 

37 percent or some fairly significant percentage of the employees 

at the job site investigated were illegally working in the country; 

is that correct? 

Mr. MORTON. I need to be careful on that case because it is still 

ongoing, but, it would be better to pick another example. 

Mr. GALLEGLY. During that raid were these folks arrested or 

were they just cited and released? 

Mr. MORTON. Um, let me speak more generally, not speak to 

Chipotle if I can, Mr. Chairman, because that is an ongoing case. 

Mr. GALLEGLY. When you do a job site inspection and you determine in your inspection that the names and numbers don’t match, 

how many are cited and how many are taken into custody? 

Mr. MORTON. So the emphasis this year and in past years since 

this Administration has taken over has been on the inspection 

process and that we have increased tremendously. We continue to 

arrest workers that we encounter at work sites, but not at the 

same volume as we had before. 

Mr. GALLEGLY. Released and given a date to appear? 

Mr. MORTON. It depends on the availability of resources and detention space at that point. So—— 

Mr. GALLEGLY. One last question because my red light came on. 

Of the 397,000 that you know were physically removed from the 

United States, do you have any indication of any recidivism or any 

rearrest of the 397,000 that were removed? 

Mr. MORTON. Not with regard to those 397,000, but recidivism is 

a serious concern. We prosecuted 10,000 people this year for illegal 

reentry alone and that is obviously an incomplete figure. 

Mr. GALLEGLY. And of those 10,000 prosecuted how many subsequently removed? 

Mr. MORTON. All of them will be removed, many of them in Federal prison. 

Mr. GALLEGLY. Very good. Ms. Lofgren. 

Ms. LOFGREN. Before I ask my questions I would like to ask 

unanimous consent to place into the record a letter from Robert 

Morgenthau, who was the prosecutor in New York City for 35 years 

and prior to that a member of the U.S. Attorney’s Office in New 

York, on this issue. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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Ms. LOFGREN. As I read through the memo and recalling back to 

the time even before the Department of Homeland Security, it 

seemed to me that every law enforcement agency makes some decision about what is a priority and what isn’t. For example, today the 

Mayor of San Jose is quoted as saying there are people camping 

on the plaza in front of City Hall. That is against the municipal 

code but the police are now chasing down some murderers. They 

have got something else that is a higher priority than the camping 

violation. It seems to me that is kind of what you are doing here. 

I want to explore why that is necessary, and I remember when 

we had the Attorney General before us some time ago I asked him 

about staffing levels in the immigration—among the immigration 


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judicial ranks as well as prosecutors. It is my understanding, and 

I guess this is a question, not a statement, that more than 300,000 

cases are currently pending in the immigration docket and that immigration judges are now setting deportation hearings for the year 

2014; is that correct to your knowledge? 

Mr. MORTON. That is correct. 

Ms. LOFGREN. And so we have got a situation where we have got 

hundreds of thousands of people waiting and that is not a good situation from a law enforcement point of view. If some of those people are dangerous criminals, others may be the wives of American 

soldiers in Iraq, you would want to make a distinction between 

those two, isn’t that correct? 

Mr. MORTON. Of course. 

Ms. LOFGREN. I am concerned about the testimony of the union, 

and I just read the written testimony, so we will have a chance to 

explore it further with the union representative. But they suggest 

that there are down times where they could go out and just pick 

up anyone without regard to the priority. But isn’t it true that the 

arrest cost represents about 4 percent of the total cost of removal, 

removing an individual? 

Mr. MORTON. Yeah, so the point there is that ICE is but one operator of many in a very complex system that goes from a point of 

identification and arrest all the way through removal. Obviously 

you have the immigration judges, you have the Department of Justice’s role, you have CBP, you have CIS. All of these things come 

together in a fairly complicated way to form the immigration enforcement system. From our perspective, this is about how do we 

maximize the resources that Congress has appropriated. And in our 

experience in a given year we can remove about 400,000 people. 

And the question comes down to, who are those 400,000 going to 

be? And could you have an approach that said it is the first 

400,000 people you encounter on the street and they are here unlawfully, and you have the power and responsibility to enforce the 

law, so remove those first 400,000. 

We have taken a different approach, which is in a world where 

there are far more than 400,000 people that we could remove, we 

want to focus those limited resources on the ones that make most 

sense, and that is criminals, national security cases, people at the 

border, reentrants, people who are gaming the system, fugitives, 

fraudsters. 

Ms. LOFGREN. Now I want to explore further the kind of focusing 

in on the worst and the cost issues which can strain everything 

that government does. It is about $120 a day and if we are setting 

things for year 2014, it is a little shy of $200,000 that we are going 

to spend to hold somebody in custody for their hearing. So I am 

just wondering, certainly the drunk drivers and the criminals and 

the felons you are going to keep those people in custody, would that 

be correct, waiting for their hearing? 

Mr. MORTON. Yes, what you point out is if—because we can’t possibly hold somebody for 2 years for their hearing because it costs 

so much so we have a non-detained docket and we have a detained 

docket. The detained docket moves relatively quickly, roughly $120 

a day for detention, that doesn’t count officer salary and removal 

expenses. That moves fairly quickly. 

27 

On the other hand, the non-detained docket can take—as you 

have already noted, can go out to 2014, 2015 simply for the administrative hearing, let alone what happens in the Federal court system. So in that kind of setting we have got to prioritize our detention resources, our enforcement resources on those cases that we 

can move quickly. It is why it makes no sense to put somebody into 

detention who requires very expensive medical treatment or is terminally ill. It just doesn’t make sense, and that is what the prosecutorial discretion memo is about, is trying to make good calls and 

judgment when it comes to allocating very expensive and limited 

resources. 

Ms. LOFGREN. Thank you, Mr. Chairman. My time is up. 

Mr. GALLEGLY. I thank the gentlelady. Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. Thank you for being here, 

Mr. Morton. I am over here. I appreciate what ICE does. My 

nextdoor neighbor is an ICE agent, he works all the time. I admire 

him and all of you all for what you do. 

I have the 20 factors that you have issued through lawyers saying that they should consider all relevant factors including, but not 

limited to these 20 factors. I would like to make this part of the 

record, Mr. Chairman. I ask unanimous consent. 

Mr. GALLEGLY. Without objection. 

[The information referred to follows:] 

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70670C-1.eps
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Mr. POE. These 20 factors that should be considered, were you 

directed by the President to issue these guidelines? 

Mr. MORTON. No, this was—— 

Mr. POE. Who told to you issue these guidelines? 

Mr. MORTON. This was issued by me. 

Mr. POE. So you decided to issue these guidelines? 

Mr. MORTON. I did. 

Mr. POE. Was anyone in the White House—the questions are not 

that complicated. Did anyone in the White House direct you to 

issue these? 

Mr. MORTON. Again, if your question is was the White House and 

the Department involved in the formulation of this memorandum, 

the answer is yes. Who issued it? I issued it. 

Mr. POE. Who from the White House was involved in this then? 

Mr. MORTON. I don’t know all of the individuals who were involved. I do know the Director of Intergovernmental Affairs handled the principal policy review for—— 

Mr. POE. Who would that be? 

Mr. MORTON. That is a woman named Cecelia Munoz. 

Mr. POE. What is the statutory congressional authority for prosecutorial discretion? 

Mr. MORTON. The principal authority is actually a Supreme 

Court case. 

Mr. POE. So there is no legislative authority for prosecutorial discretion, correct? 

Mr. MORTON. I wouldn’t go so far as to say that. Congress routinely recognizes in our appropriation the need to prioritize. Indeed, in our most recent appropriation, which is 2010, there is an 

explicit instruction to us from the Appropriations Committee to 

prioritize certain cases over another. So Congress has long recognized this power and it is a bedrock principle of Federal law. 

Mr. POE. But there is no statutory authority that you can cite to 

me; it is a Supreme Court decision, correct? 

Mr. MORTON. It is, that is right. 

Mr. POE. Primarily Heckler. 

Mr. MORTON. Heckler v. Chaney. 

Mr. POE. I will read one statement to you in the Heckler decision. 

It says, prosecutorial discretion generally is nonreviewable, ‘‘except 

where the agency conscientiously and expressly adopts a policy 

that is so extreme that it represents an abdication of its statutory 

responsibilities.’’ That is in the case of Heckler v. Chaney. My opinion is that that comes into play in this case. 

There are 900,000 drunk drivers arrested in the United States 

a year, approximately, arrests. Would you agree with me or not if 

we decided, well, that is just so many people we just can’t get 

around to prosecuting all those drunk drivers, we are just going to 

use our discretion and prosecute only drunk drivers who kill people? Would that encourage drunk driving or would it diminish the 

drunk driving in this country? Do you think that would have any 

factor on anybody else out there who wants to drive drunk? 

Mr. MORTON. I think that analogy works only if you take it to 

an extreme, and I don’t think that is the case here. 

35 

*The Subcommittee received the following reply from ICE in response to Mr. Poe’s question: 

ICE response: ICE will provide the statistics to the Committee in April 2012. 

Mr. POE. I am just asking about drunk drivers. Do you that I 

would encourage more drunk driving if we just gave them all a 

pass? 

Mr. MORTON. I think—listen, Mr. Poe, I was a career Federal 

prosecutor. 

Mr. POE. I know your background. I just want you to answer my 

question. I only have limited time so don’t just keep talking so that 

we don’t get an answer. Do you think that would encourage—there 

are a lot folks who like to drink and drive and one reason they 

don’t do it is because somebody might just arrest them and put 

them in jail. But if we told them, hey, you are not going get arrested unless you kill somebody, that would encourage drunk driving in the United States, just like it would encourage, if you gave 

a pass on these 20 conditions of people who are here illegally, you 

can stay if your wife a pregnant for example. If we gave them a 

pass on all of that, that would encourage more people to come here 

and try to fit in one of these categories so if they got arrested they 

would meet the discretion of your office and let them go. 

That is my problem with this memo, and I think it encourages 

the unlawful conduct, whether you want to call it criminal or civil, 

it encourages people to come here and stay here illegally. So I 

would hope that Congress would deal with this issue. I think Congress has to legislatively deal with the issue of prioritizing if we 

do, rather than expecting the Director like yourself to decide who 

wins, who loses, who gets to stay, who is got to go home. 

I wish we had more time to talk, I yield back. 

Mr. MORTON. Could I just, Mr. Chairman, just address two quick 

points? On the question of statutory authority for prosecutory discretion I would refer you to Title VI, section 202, that does empower the Secretary of Homeland Security to set enforcement priorities and policies for the Department. 

And on your other point of if something is a pass, I agree if it 

gets to an extreme, yes, that could be the case, but that is not what 

we are doing here, none these people are—this is not about giving 

anybody who falls within a particular category a complete pass or 

pardon. 

Mr. POE. Well, if I may, one question, it is 300,000 people. That 

sounds like a lot of folks to me that we are talking about. 

Mr. MORTON. But a very important point is we are not going to 

be administratively closing 300,000 cases. All we have said is that 

we will review the pending docket for cases that might warrant 

prosecutorial discretion. I think it is going to be a far, far smaller 

number than 300,000. 

Mr. POE. In 6 months give us back the statistics. 

Mr. MORTON. Be happy to.* 

Mr. GALLEGLY. The Chair yields to the gentlelady from California, Ms. Waters—Ms. Jackson Lee of Texas. 

Ms. JACKSON LEE. Mr. Morton, this is an important hearing and 

I always take comfort or at least delight in acknowledging your 

prosecutorial background and history and also your heritage of understanding the history of immigrants and that immigrants by and 

36 

large come to the United States for better opportunity. And even 

in 2011 I think we still have the values that many around the 

world admire. 

So I think it is important that we have a thoughtful, firm and 

forceful policy. Needless to say, every time I have an opportunity 

I am going to suggest that we have comprehensive immigration reform. We are the instructors, we provide the guidance for the Administration, any Administration, whether it be Republican or 

Democrat, we certainly work together. But you cited a congressional provision that talks about discretion that is tied it our laws 

and I say our, the laws that are written by the United States Congress signed by the President of the United States. 

So we would be all better off if we had a road map such as the 

comprehensive immigration reform and allow people to access citizenship, and of course had a pathway for enforcement that dealt 

with the issues you deal with every day. 

Let me ask some pointed questions if you can give me some 

pointed answers. It has come to my attention that the present Administration, Mr. Obama’s administration, has deported over a million individuals. Can you answer that, sir? 

Mr. MORTON. To date, yes, that is right. 

Ms. JACKSON LEE. I understand that may be the largest number 

since a number of presidencies and Administrations, is that not 

correct? 

Mr. MORTON. It is. Our overall enforcement efforts are at their 

highest as we have ever had as an agency. 

Ms. JACKSON LEE. Are you using a lot of resources? When I say 

that, of course the ICE officers’ compensation, overtime, this takes 

a lot of money. 

Mr. MORTON. It does, our overall appropriation is $5.8 billion. 

For the enforcement and removal operations it is 2.8 billion, of 

which Congress directs us to spend $1.5 billion of that, over half 

of it, the identification and removal of criminal offenders. 

Ms. JACKSON LEE. And the memorandum that was written, do 

you consider it a thoughtful memorandum? 

Mr. MORTON. I do. 

Ms. JACKSON LEE. Do you at the same time as the memorandum 

was issued engage with your regional ICE officers, those who head 

the regional officers, engage them all the time and listen to either 

their concerns or their input on this policy and other policies? 

Mr. MORTON. Of course. 

Ms. JACKSON LEE. And does the memorandum have an open 

door, is there a key that is given that literally says leave all— 

leave, everyone, is that—you take keys to the detention centers and 

provide an open door or the jail houses, provide an open door for 

everyone to leave; is that what the memorandum says? 

Mr. MORTON. It doesn’t. 

Ms. JACKSON LEE. When your memorandum was issued, a family 

and those of us who feel passion for this issue see a lot of tragic 

stories. And one in particular was a gentleman who was in a detention facility in Houston who was crying when he heard the news 

on the television. Obviously he was not a criminal defendant. He 

was teacher who had been hauled away from his classroom. I have 

said to many others before you about my concern about raids and 

37 

that kind of thing. He was crying because he thought had he a opportunity. Unfortunately, someone decided to be swift on their actions and a man who taught for 20 years, whatever his misstep 

was, no past priors, et cetera—this was a teacher—was swished out 

of the detention center, and now he is in a different light and different position in terms of having to get him back. I would say to 

you that that aggravates me because I believe in a discretion situation that case could have been reviewed. 

So I ask the question of the vitality of our security under this 

memorandum. We just saw the tragedy regarding the Saudi ambassador. Do you feel in any way that you are diminishing our responsibility on the issue of criminal aliens or the protection of the 

homeland under this memorandum? 

Mr. MORTON. I don’t. National security and criminal offenders remain our highest priorities, as I think is very clear from our efforts 

to date. Whatever criticisms you may have of the agency, our focus 

on criminal offenders isn’t one of them. And we, as I mentioned in 

my opening remarks, will have removed about 216,000 criminal offenders this past fiscal year. That is by far the highest number of 

criminal offenders ever removed by the agency. We are going to remain focused on that, and again it is not something that—it is common sense, it is good policy, but it is not something that the agency 

cooked up out of thin air. It is a direction from the Congress to us 

in both our 2008 and 2010 appropriations. 

Mr. GALLEGLY. The time of the gentlelady has expired. Mr. Ross. 

Mr. ROSS. Thank you, Mr. Chairman. My tact on this is a little 

different. Back in Florida where I come from there was the case of 

Abel Arango, you may remember, the gentleman from Cuba who 

came over in the nineties and committed an armed robbery and 

was sentenced and because of the Supreme Court case in Zadvydas 

they couldn’t keep him for any longer than 6 months and he was 

released. Subsequently a couple of years later he shot and killed 

a police officer in Fort Myers, and they won’t take him back to 

Cuba. 

My concern about this is that you are obviously aware of these 

types of cases. In fact you are so much aware it is in one of your 

criteria factors to consider. It says one of the ones, probably the 

16th one, whether the person’s Nationality renders removal unlikely. So when you run across somebody whose Nationaliy, whether they be from Cuba or Iran or Cambodia or wherever, is it an 

automatic prosecutorial discretion because you can’t do anything 

with them anyway? 

Mr. MORTON. These are the hardest cases we have because, you 

know, we—the answer to your question is we err on the side of 

public safety. And so we will detain if the person is a big danger, 

even we can’t remove. But your point of do we get to a point where 

we have to release that person as a matter of Supreme Court law, 

the answer is yes, we do. I wish that weren’t the case, but that is 

the case, particularly with countries we have no diplomatic relations with. 

Mr. ROSS. When you do, do you put them under an order of supervision? 

Mr. MORTON. We do. 

Mr. ROSS. And how does that work; is it like probation? 

38 

Mr. MORTON. It is. We ask people to come in—some people that 

we will put on a form of intensive supervision, others that we order 

to come in and report. 

Mr. ROSS. If they violate the order, what is the downside? They 

are still not going to be deported, they will still be here. 

Mr. MORTON. That is right. We have an inability with certain 

countries to effect removal. Cuba, the example you give, is the 

prime one. 

Mr. ROSS. So what is the solution to that? 

Mr. MORTON. Well, With recalcitrant countries; that is; countries 

who delay but ultimately it is a constant push to try to get them 

to take their people back. It is diplomatic pressure. 

Mr. ROSS. What if we say we no longer allow visas from those 

countries, period? 

Mr. MORTON. The law provides for that and that is the most useful sanctions with countries with whom we have relations. Cuba, 

however, is different story. 

Mr. ROSS. How many of those would you say that are out there, 

of the total numbers that their countries won’t take them back? 

Mr. MORTON. There is about I would say 20 countries that are 

slow to take their nationals back and about four or five where it 

is close to impossible. Somalia, for example, a war torn country, it 

is next to impossible to carry out a removal to Somalia, extremely 

difficult. Cuba won’t take them back. Vietnam will not take people 

back. 

Mr. ROSS. And we continue to issue visas from those countries? 

Mr. MORTON. In limited circumstances we do. We have launched 

an initiative, however, with the State Department on this exact 

point, to get to the point where certain countries, if we can’t get 

an improvement, we are going to recommend to the State Department that visas cease to be issued. 

Mr. ROSS. Your memo with regard to the exercise of prosecutorial 

discretion, is that as a result of a declining amount of appropriation that your agency is receiving? What is it a function of? 

Mr. MORTON. No, our appropriation is at an all-time high. Both 

the President’s request and the Congress’ appropriation is at an 

all-time high. So it is not a function—— 

Mr. ROSS. You said it is the President’s request to exercise prosecutorial discretion. 

Mr. MORTON. No, the President’s budget request was the highest 

ever requested and Congress’ appropriation was the highest ever 

given. 

Mr. ROSS. But you have more cases than you have ever had. 

Mr. MORTON. That is right. But even with the appropriations we 

have, there are, depending on whose estimate you believe, there 

are between 10 and 11 million people here unlawfully. We can remove about 400,000. 

Mr. ROSS. If we had a more secure border, if we had a more secure border, it would limit the amount of cases logically that you 

would be having? 

Mr. MORTON. It would and I would note the Border Patrol’s apprehension this year would be around 330,000 along the Southwest 

border, which is the lowest number in a very long time, and that 

is why in my opening remarks I highlighted the partnership that 

39 

we formed with the Border Patrol to improve border security. So 

for the first time we are working hand in hand with the Border Patrol to detain and remove a number of people that they apprehend, 

to bring ICE’s power to bear along the border to improve border security. 

Ms. LOFGREN. Would the gentleman yield. 

Mr. ROSS. Yes. 

Ms. LOFGREN. I had a question on the assertion you made. In the 

case where you have someone who cannot be deported because the 

country of origin will not accept return and you have got them on 

a probation scheme and they violate probation, can’t you arrest 

them for the probation? 

Mr. MORTON. We can bring people back into detention, but we 

are going to come back, we are going to constantly face the same 

set of requirements. 

Ms. LOFGREN. What would it take to initiate a criminal prosecution in such cases? 

Mr. MORTON. We can initiate criminal prosecution where people 

fail to comply. It is possible, and we do do that on occasion. I 

should note that in a very limited—if you are a schizophrenic murderer who is a danger no matter what, we will go to the extraordinary length of detaining. Even under the Supreme Court precedent we can do that. But what it means is that ICE detains and 

we have people in our detention literally for year after year after 

year and many of the—— 

Ms. LOFGREN. I thank the gentleman for yielding. 

Mr. GALLEGLY. The time of the gentleman has expired. Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. There is so 

much to learn about this system as it relates to undocumenteds 

and how we handle them. As I understand it, there are nearly 

300,000 cases that are currently in removal proceedings, is that 

right? 

Mr. MORTON. The active docket at the Executive Office for Immigration Review is over 300,000 cases. 

Ms. WATERS. And if you did not set priorities and determine low 

priority, how long would it take you to take care of all these 

300,000 cases, to—I guess it would be to adjudicate them. 

Mr. MORTON. To adjudicate them—the adjudication is done at 

the Department of Justice but we are the prosecutors. For the nondetained docket the backlog is such that you are looking at many, 

many years before a non-detained case is heard and adjudicated. 

Ms. WATERS. Five years, 6 years, 7 years, 8 years, 9 years? 

Mr. MORTON. If you factor in the appeals to the Federal court 

which under the law can go all the way to the Supreme Court, it 

can take many, many years. 

Ms. WATERS. Now help me to understand. Meanwhile the taxpayers are paying the cost for retention of everybody in these removal proceedings. 

Mr. MORTON. The taxpayers pay for all removal proceedings, and 

for those detained they also pay for the cost of detention. 

Ms. WATERS. So in setting priorities what could happen to low 

priority cases, how would they be disposed of? 

40 

Mr. MORTON. Very low under—a few things, if they are on the 

non-detained docket they just take many, many, many years to be 

adjudicated. In the instance where we would exercise prosecutorial 

discretion and not put them in the proceedings at all and administratively close their case, they would be in a legal limbo. 

Ms. WATERS. It would be what? 

Mr. MORTON. In a legal limbo. They would have no status. They 

would simply be like many of the 11 million people who are here 

unlawfully without permanent status, but not a priority for immediate removal. 

Ms. WATERS. So how does—unless I missed something, how does 

determining that one falls in the low priority category, how does 

it help us to reduce the cost of the system and the time in the system? 

Mr. MORTON. What it does is it allows us to focus more of our 

limited resources on the high priority cases. We have more cases 

than we can handle. That is the fundamental challenge that we are 

facing. And when we prioritize our efforts on criminals and border 

cases and people who are gaming the system and don’t put as 

many low priority cases into the process, it is a zero sum game. We 

are able to remove more of the high priority cases. It comes at the 

expense of the low priority cases. 

Ms. WATERS. I don’t know if this has been discussed already. 

While we see that we have a problem with the numbers and how 

we are able to have the kind of proceedings that would do exactly 

what you want to do, dealing with the high priority cases, has 

there been discussion about expansion of the court to deal with 

these cases and what does it cost and who has demonstrated a willingness to pay that cost? 

Mr. MORTON. This has been the subject of quite a bit of discussion and you note a very important point, which is ICE is but one 

part of the removal process. The Department of Justice is a critical 

part of it. You obviously have to have immigration judges to hear 

the cases, and there aren’t sufficient resources to hear all of the 

cases that are in proceedings, which is why you have cases that go 

on for many, many years before they are even adjudicated as an 

administrative matter let alone go through the Federal court system for a hearing. But I would—although that is under the jurisdiction of this Committee, because the Department of Justice is 

under the jurisdiction of this Committee, the immigration judges 

and the adjudication function is not part of ICE or the Department 

of Homeland Security. 

Ms. WATERS. So have you heard any discussion at all from either 

side of the aisle about the expansion of resources to deal with? 

Mr. MORTON. I cannot speak to the Department of Justice’s appropriation. I just don’t know it well, so I don’t want to make a 

misstep there. I will tell you that we have been discussing with the 

Department of Justice a reallocation of their resources so that more 

of the Department of Justice judge time is focused on the detained 

docket so that we can remove more people who are detained, and 

those typically are the people that are—I think we would all share 

a view—the high priority cases; namely, criminal offenders and 

people who have reentered the country illegally, border cases. 

41 

Ms. WATERS. With the expansion of resources, for those people 

who don’t like the idea of setting priorities and determining the 

higher priorities and all of that, expansion of resources would be 

the alternative? 

Mr. MORTON. That is right. I mean if you are talking about expansion to all 11 million people here in the United States unlawfully, it is a considerable expansion of resources. ICE’s budget for 

enforcement and removal operations is about $2.5 billion for about 

400,000, and that is not to count the other resources at CBP, CIS 

or DOJ. 

Mr. GALLEGLY. The time of the gentlelady has expired. Ms. 

Lofgren for 30 seconds. 

Ms. WATERS. I yield. 

Ms. LOFGREN. I just wanted to briefly stand up for the immigration judges because they have a crushing caseload, and they—I 

know my former law partner in fact is—it is unbelievable workloads. I don’t want anybody to assume from this discussion the immigration judges are dogging it. I mean there just aren’t enough. 

If you compare the number of cases they are hearing with any 

other judge in any system you would see they are incredibly overloaded. I just thought it was important to note that. 

Mr. MORTON. I agree with that in full. 

Mr. GALLEGLY. I will stick with regular order. I can’t let that 

statement go without at least making a comment on it. A lot of this 

is self-inflicted with all due respect. I can give you list of cases that 

have been continued 9, 10, 11 times arbitrarily and that in and of 

itself is justice delayed and we know what that means. 

Ms. WATERS. Would the gentleman yield for a moment? 

Mr. GALLEGLY. This will be the last time we get out of order. 

Yes, I would yield. 

Ms. WATERS. You made a very serious accusation, you just 

said—— 

Mr. GALLEGLY. I didn’t make an accusation. I made a statement. 

Ms. WATERS. Okay, whatever, it was a statement, but your statement said that judges without due consideration arbitrarily make 

decisions to delay. 

Mr. GALLEGLY. Yes, that is correct. 

Ms. WATERS. That is what you are saying. 

Mr. GALLEGLY. That is correct. 

Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Director Morton, when you all conduct work site enforcement actions, and they are down 70 percent since the last Administration 

you seldom detain or remove the illegal workers. What is to keep 

them from walking down the street and getting another job? 

Mr. MORTON. First of all, I don’t completely agree with your initial statement. You are right that the number of administrative arrests is down considerably. The number of our work site inspections—— 

Mr. SMITH. I am going by administrative arrests because that, if 

it doesn’t occur, it allows individuals, as I just said, to walk down 

the street and get jobs. 

42 

What is to prevent under your policies where you don’t really remove or detain very many illegal workers, what is to keep them 

from walking down the street and getting another job? 

Mr. MORTON. They can obviously—as you note, they can continue 

to try to find employment but what our response to that is what 

is keeping them from doing that is we are going after employers 

hammer and tong. 

Mr. SMITH. You are going after employers but not the illegal 

workers. And as you just said they can get other employment. My 

point is those jobs should be going to unemployed Americans, not 

to illegal immigrants who happen to walk down the street. I assume you agree with that. 

Mr. MORTON. I think where you and I—the difference is that I 

am trying to figure out how best to allocate the 400,000 or so removals I have, and I think it is better to focus on the criminals. 

Mr. SMITH. That is not my question. I am simply pointing out the 

result of your policy is that a lot of unemployed Americans are not 

getting jobs that they otherwise might secure because illegal immigrants are walking down the streets and taking those jobs. 

Next question, do deferred action—under your memos as I understand it, thousands or perhaps hundred of thousands of illegal immigrants might be eligible for deferred action. To the extent that 

they are granted deferred action, aren’t they then eligible to get 

work authorization as well? 

Mr. MORTON. A few things, under the prosecutorial discretion 

memo, particularly for the cases in court, it would be a different 

form of prosecutorial discretion. That would be in the form of administrative closure. But to your basic point, my understanding is 

that present law under regulations does allow someone to apply for 

work authorization? 

Mr. SMITH. Isn’t it reasonable to assume that a lot of those individuals will be granted work authorization. 

Mr. MORTON. I don’t think so. I think it will be quite narrow. 

But, as you know, ICE does not grant work authorization. That 

power is with a different part of the Department of Homeland—— 

Mr. SMITH. Do you think it will be a very small percentage who 

are granted work authorization of the individuals who receive deferred action? 

Mr. MORTON. I think so. I think that is right. 

Mr. SMITH. Well, I hope you more than think, that you can make 

sure that—— 

Mr. MORTON. Again, we do not have that power. That is not my 

responsibility. But, from what I understand, you can apply, but it 

is on a case-by-case basis, and I don’t think CIS—— 

Mr. SMITH. I will take your word, and I hope you are right about 

a very small percentage that will get work authorization. Otherwise, they will be taking jobs that should go to unemployed Americans. 

My last question is this: When you have individuals who have 

been detained in local jails, you all are called and asked if you 

want to continue to detain them. Most of the time—or many 

times—you do not seek a detainer, and these individuals are released into our communities. Do you have an idea how many people 

are released because of that decision? 

43 

*The Subcommittee received the following replies in response to questions asked by Mr. 

Smith: 

Response: As discussed with Committee staff, DHS is in the process of responding to 

the Committee’s November 4, 2011, subpoena. To the extent possible, DHS will provide 

a response to the Chairman’s inquiries in its responses to the subpoena. 

and, 

Response: Please see DHS’s December 12, 2011, submission in response to the Committee’s November 4, 2011, subpoena. 

Mr. MORTON. First of all, I think in most instances, we try to detain, and that is why we have removed so many people. Are there 

instances in which, for whatever reason, we do not issue a detainer 

or we don’t follow through on a detainer? Of course, we don’t pick 

up every single person. Can I give you an exact number here 

today? No, but I am happy to try to figure that out for you. 

Mr. SMITH. If you could get that for me, that would be good. 

Another figure I would like for you to confirm for me, the GAO 

says that approximately 25 percent of all Federal prisoners are illegal immigrants. I assume that that figure is accurate. If so, it is 

very disturbing because that is about five times their proportion of 

the population. So if you will confirm the second figure and then 

get me the estimated number of individuals who are released back 

into our communities. I think it is going to be in the hundreds of 

thousands and perhaps more. But I will wait for your figure on 

that as well. 

Mr. MORTON. Might I offer—so just for the full context, I do 

think we have pretty good estimates on how many people are released from the prison system to the streets. That is different than 

a notice to ICE and then released. In many instances, we have no 

notice. 

Mr. SMITH. Do you know what that figure is? 

Mr. MORTON. I know that we have it. I think it is in the 

order—— 

Mr. SMITH. Do any of these people sitting behind you have the 

answer to the question? 

Mr. MORTON. I don’t think so. But we have a whole presentation 

on this. We spent a lot of time trying to figure it out because of 

our interest in secure communities, and I think we can give you a 

full—— 

Mr. SMITH. I look forward to that figure as well.* 

Thank you, Mr. Chairman. 

Mr. GALLEGLY. Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Director Morton, what input did the White House provide you in 

drafting the so-called prosecutorial discretion memos? 

Mr. MORTON. My principal interaction was with the Department 

of Homeland Security, so I did not have a regular interaction with 

the White House on this. 

Mr. GOWDY. Did you have an irregular interaction? 

Mr. MORTON. No. As I noted earlier, there was involvement by 

the White House in this. This is Administration policy. And, as 

such, obviously, there was coordination between the departments. 

Mr. GOWDY. So the memos would have been approved by the 

White House before you—— 

Mr. MORTON. The White House reviewed the memos. 

Mr. GOWDY. Who else did you talk to? 

44 

Mr. MORTON. The usual—folks at the Department of Homeland 

Security, the Secretary, and her senior staff. 

Mr. GOWDY. Any outside groups? 

Mr. MORTON. Me, personally, no. 

Mr. GOWDY. Do you have any knowledge of anyone—— 

Mr. MORTON. I don’t. This was Administration policy. This was 

developed by ICE, Department of—— 

Mr. GOWDY. Who developed it? 

Mr. MORTON. I did with the Secretary and the White House. 

Mr. GOWDY. Well, now I am confused. So it was you, the White 

House, and the Secretary that developed this policy and drafted the 

memo. Who at the White House helped you draft the memo? 

Mr. MORTON. No. We drafted the memo. And, as I indicated, this 

is Administration policy. There was involvement by the Department of Homeland Security and the White House. 

Mr. GOWDY. Were any outside groups, any immigrant right 

groups consulted? 

Mr. MORTON. Not to my knowledge. 

Mr. GOWDY. Did you consult special agents within ICE before 

you issued—— 

Mr. MORTON. This particular policy is largely focused on the enforcement and removal operations. But the answer to that question 

on individual special agents, no. Obviously, the leadership of the 

Homeland Security Investigations, yes. 

Mr. GOWDY. Why didn’t you pursue a legislative remedy? 

Mr. MORTON. I am not sure what you mean by that. 

Mr. GOWDY. Did you talk to any Members of Congress and ask 

them to change the law to help you order your priorities? 

Mr. MORTON. Well, Congress already gives us a fair amount in 

the way of instruction in our appropriation, as you may—— 

Mr. GOWDY. That is kind of my point. They did. And then it was 

ignored. 

Mr. MORTON. No. Congress, in fact, told us very clearly that we 

were to focus first and foremost on the identification and removal 

of criminal offenders and gave us a direction on—— 

Mr. GOWDY. Do you think that was to the exclusion of everyone 

else? 

Mr. MORTON. But that is not what we are doing. We remove— 

about half of the people we remove are criminals, and that is about 

what Congress told us to do. And the other half are noncriminals. 

Mr. GOWDY. Do you think the head of the Drug Enforcement Administration has the legal authority to decriminalize certain categories of drugs? 

Mr. MORTON. I don’t believe that the head of the Drug Enforcement Administration has the power to change a Federal law. 

Mr. GOWDY. Does she have the authority to just not pursue certain categories of drugs? 

Mr. MORTON. Whole classes and categories, no. Does Michele 

Leonhart have the authority to emphasize certain kinds of drug 

prosecutions over others? Absolutely. Does she have individual discretion? Absolutely. 

Mr. GOWDY. I am talking about just blanket immunity for certain 

categories of offenders. 

45 

Mr. MORTON. I don’t believe the DEA would ever assert that authority, and we certainly don’t. 

Mr. GOWDY. Do you think the Bureau of Prisons has the authority to release certain inmates that are near the end of their time 

or even if they are not near the end of their time because they have 

budget constraints? 

Mr. MORTON. I wouldn’t say for budget restraints. From my past 

life as a prosecutor, in fact, they do have authority with regard to 

people who are very elderly, but that is pursuant to Federal law. 

Mr. GOWDY. Right. You also have a memo about victims, witnesses, and plaintiffs. And if I understand that memo correctly, if 

you are a plaintiff in certain categories of civil litigation, you can 

escape prosecution and removal, is that correct? 

Mr. MORTON. Not escape, no. It is simply on whether or not we 

would put you into proceedings during the pendency of your litigation. It is not a pass on deportation. 

Mr. GOWDY. What if you were a defendant in a civil case? 

Mr. MORTON. It is primarily focused on litigants pursuing legitimate civil rights complaints. 

Mr. GOWDY. What if an American citizen has a legitimate complaint against someone who is a defendant in a civil case? 

Mr. MORTON. And we were seeking to remove that person and 

their presence was necessary? 

Mr. GOWDY. Yes. Is that covered by your memo? 

Mr. MORTON. The memo doesn’t specifically address that, although our practice—we will work with people to maintain someone in the country—— 

Mr. GOWDY. So your memo specifically addresses plaintiffs. 

Mr. MORTON. It does. 

Mr. GOWDY. And you say there might be an exception for civil 

defendants. 

Mr. MORTON. I am not sure what you are getting at. 

Mr. GOWDY. Well, what I am getting at is if one illegal immigrant sues another, can you avoid removal? Because then you have 

both a plaintiff and a—— 

Mr. MORTON. Under neither circumstance can you avoid removal. 

There is nothing in the memorandum that is about avoiding removal. It simply says, don’t put someone who is the immediate victim of a crime, a necessary witness to a crime— 

Mr. GOWDY. Or a plaintiff. 

Mr. MORTON [continuing]. Or someone who is a plaintiff in a legitimate civil rights suit. 

Mr. GOWDY. It is not just a civil rights suit. Is it not also landlords? 

Mr. MORTON. What is that? 

Mr. GOWDY. Is it just civil rights suits? It is not landlord-tenant 

disputes? 

Mr. MORTON. No. It could be a landlord-tenant—— 

Mr. GOWDY. Right. So it is not just civil rights. It is other forms 

of civil litigation as well. 

Mr. MORTON. That have to deal with vindicating personal rights 

that are recognized either by Federal or State law, that is right. 

Mr. GOWDY. What about a medical malpractice case? Would that 

be covered also? 

46 

Mr. MORTON. No. 

Mr. GOWDY. Why not? 

Mr. MORTON. Because that is not what we are trying to cover. 

Mr. GOWDY. What is the difference between landlord-tenant 

cases and personal injury cases? 

Mr. MORTON. This was largely focused on trying to allow people 

to vindicate important civil rights. 

Mr. GOWDY. Well, let me say this in conclusion, Mr. Chairman. 

Mr. Morton, I have great respect for what you do. I have great respect for your former job. The thing that disappoints me the most 

is, whether it is real or perceived, it is the politicization of the 

criminal justice system. That is what frustrates me. I hope that is 

not what is happening here. 

Mr. GALLEGLY. The time of the gentleman has expired. 

Mr. King. 

Mr. KING. Thank you, Mr. Chairman; and, Director, I appreciate 

your testimony here. 

Just to pick up a little bit, one of my curiosities that has emerged 

as I listen to your testimony and you talked about how the idea of 

prosecutorial discretion was developed by you, by the White House, 

and also by the Secretary. And so I would see that then as a new 

name at the White House, Cecilia Munoz. And also then I am going 

to say you, Cecilia Munoz, and Janet Napolitano would be the 

three principals I have in mind when I hear that testimony. 

What was the genesis of the idea? Did one of the three of you 

present this? Or where did it come from originally? 

Mr. MORTON. Well, first of all, it is important to remember the 

agency has issued prosecutorial discretion memoranda for as long 

as it has been around, including its predecessor agency. So the idea 

that this is something that we cooked up, is brand new, wouldn’t 

be fair. 

Mr. KING. Let me just suggest then—and I will pull this out of 

my memory. It seems about a year ago I remember reading news 

articles about the subject of this discretion, but it was addressed 

as the Department of Homeland Security looking to find a way to 

grant this as a blanket discretion rather than an individual discretion that you have spoken to today. Do you recall that dialogue 

being in the media roughly a year ago? 

Mr. MORTON. I do. It wasn’t about ICE in particular. But, yes, 

I do. 

Mr. KING. Then so taking you back to that period of time, I 

would say that might be something new to talk about, a blanket 

prosecutorial discretion proposal. But where did the genesis of that 

idea come from? 

Mr. MORTON. Well, I don’t think that there was ever discussions 

at the Department of Homeland Security at the secretarial level for 

blanket amnesty or—— 

Mr. KING. Nor from the White House, Cecilia Munoz? 

Mr. MORTON. Or from the White House that I am aware of. In 

fact, my understanding and my direct knowledge is that the Secretary is opposed to it. I am opposed to it, that we don’t support 

administrative amnesty. 

Mr. KING. There was a personality that was a driving force behind this concept. Is that yours? Or is it—you are a driving force 

47 

and then Cecilia Munoz came into this in that fashion? Or was it 

then initiated out of the White House and reflected back to you? 

Mr. MORTON. No. I felt that we needed to clarify our prosecutorial discretion memoranda to support the earlier memorandum 

that I issued on our civil enforcement priorities. But this is Administration policy; and, obviously, as such, this was important to the 

Secretary and the Department and to the White House. And as the 

Secretary’s letter—— 

Mr. KING [continuing]. Recognizes Administration policy, why? 

Mr. MORTON. The Secretary’s letter to the various Senators on 

this subject makes it clear that this Administration’s policy is 

about coming up with a set of rational enforcement priorities when 

it comes to immigration enforcement. And that is what this is all 

about. 

Mr. KING. Let me go in a little bit different way. And that is 

there was some discussion, questions from the other side about the 

resources needed to bring about enforcement. And your response 

was back to, if we were going to deport 11 or so million people, the 

resources that it would take. 

But if we were just going to apply the resources at the border 

so that every interdiction that we come across could actually be 

prosecuted, have you looked at the resources necessary to have the 

judges, the prosecutors, and the prison beds in order to follow 

through with an ability to do 100 percent enforcement on the 

southern border? 

Mr. MORTON. I have not, largely because the immediate responsibility for border control is with my sister agency, Customs and Border Protection. We support them with detention and administrative 

removal powers, but the basic responsibility is with CBP, not with 

ICE. 

Mr. KING. Yes. And, as you said, you support and you are in that 

area and they do look to you as a—let me just say your connection 

that has to do with the national policy standpoint. 

Have you come before Congress? Have you or are you aware of 

the Border Patrol asking for those resources to provide 100 percent 

enforcement on the border? I would think you would have to collaborate to come up with that number. 

Mr. MORTON. I have not testified or come before Congress on 

CBP’s appropriation. As I note in my earlier testimony, the President’s request for ICE’s budget is the highest it has ever been, and 

Congress has appropriated that money. 

Mr. KING. If we had the ability to actually leverage full enforcement at the border, then it would be actually a deterrent effect. 

Mr. MORTON. Absolutely. 

Mr. KING. And we hear some testimony that goes all over the 

map, but we know we are not interdicting half of those that come 

across. 

Another question: Illegal drugs that are interdicted at the border, 

are they up or down over the last 2, 3, 4 years? 

Mr. MORTON. I believe the seizures that CBP is making are up. 

Mr. KING. And deaths in the Arizona desert? 

Mr. MORTON. I can’t speak to that. That is really a CBP issue. 

I do know that CBP’s apprehensions along the border are at record 

lows. 

48 

Mr. KING. So I would just suggest this question is in my mind, 

and that is that there are two ways to interpret the interdictions 

of CBP on the border. One of them is that there are fewer people 

crossing the border, and the other one is that they are stopping 

fewer people that are crossing the border in similar numbers. And 

I would ask you if you would pay close attention to the volume of 

the drugs that are being interdicted at the border as a better indicator of how much illegal border crossing is going on and looking 

at the deaths in the Arizona desert as another measure on that, 

those things are not—they aren’t affected directly by whether or 

not there is a real focus on the interdiction at the border. I mean, 

the drugs are. The drugs are. And they are doing I think a lot of 

work to enforce the illegal drugs that are transported across the 

border. But I would suggest that that is a reliable indicator, and 

the deaths in the Arizona desert are a reliable indicator, and the 

interdictions of individuals just for border crossing may not be. 

Thank you, Mr. Director. 

Mr. GALLEGLY. The gentleman’s time has expired. 

Mr. Morton, thank you for your testimony today and thank you 

for coming in. I am sure we will be working together. At least as 

it relates to the issues you are dealing with, you have job security. 

At this time, we will call up the second panel. 

Mr. MORTON. Thank you, Mr. Chairman. 

Mr. GALLEGLY. Our witnesses on panel two: 

First, Mr. Chris Crane currently serves as the President of the 

National Immigration and Customs Enforcement Council, 118 

American Federation of Government Employees. He has worked as 

an immigration enforcement agent for the U.S. Immigration and 

Customs Enforcement, known as ICE, at the Department of Homeland Security since the year 2003. In his capacity as an immigration enforcement officer, he has worked in the criminal alien program for approximately 5 years and has also served as a member 

of the ICE Fugitive Operations Team. Prior to his service at ICE, 

Mr. Crane served for 11 years in the United States Marine Corps. 

Our second witness is Mr. David Rivkin. He is a partner at 

Baker & Hostetler here in Washington, D.C. Mr. Rivkin has a 

lengthy career, distinguished service under Presidents Ronald 

Reagan and George Herbert Walker Bush in the U.S. Department 

of Justice and the U.S. Department of Energy. He is a member of 

the Council on Foreign Relations. Prior to embarking on a legal career, Mr. Rivkin worked as a defense and foreign policy analyst. 

Mr. Rivkin earned his BSFS and M.A. at Georgetown University 

and his J.D. from Columbia. 

Our third witness is Mr. Ray Tranchant. Mr. Tranchant is currently a Director at the Advanced Technology Center for Tidewater 

Community College located in Virginia Beach. His advocacy to reform or enforce immigration laws has achieved national attention. 

Mr. Tranchant graduated from the United States Naval Academy 

and flew the F-4J and F-14A aircraft during multiple operations, 

including the Iranian hostage crisis and the war in Lebanon. After 

retirement, Mr. Tranchant became an educator in the public 

schools of Virginia and an adjunct professor at Cambridge College. 

Mr. Tranchant received his B.S. and master’s degree from Old Dominion University. 

49 

And our fourth witness today, Mr. Paul Virtue, is partner at 

Baker & McKenzie here in Washington. Prior to his law firm, he 

served as executive associate commissioner and general counsel of 

the U.S. Immigration and Naturalization Service. He also participated in drafting the immigration provisions of the North American 

Free Trade Agreement. Mr. Virtue earned his B.S. from West Virginia University and his J.D. from West Virginia University College of Law. 

Welcome, gentlemen. 

We have a situation here where we are likely to be called for 

votes in about a half hour, 35 minutes. So we will be particularly 

careful to try to stay within our time limits, and I appreciate all 

of you being here. 

Mr. Crane. 

TESTIMONY OF CHRIS CRANE, PRESIDENT, 

NATIONAL ICE COUNCIL 

Mr. CRANE. Good afternoon, Chairman Gallegly, Members of the 

Committee. 

While many of ICE’s policies and practices concerning—I have 

chosen to devote my time today discussing the best practices—— 

Mr. GALLEGLY. Mr. Crane, is your microphone on? 

Mr. CRANE. Thank you. Sorry about that. 

When I last testified before the Subcommittee on July 25, 2011, 

I reported, among other things, that ICE enforcement removal officers and agents in the field alleged that unwritten directives from 

ICE headquarters had been issued nationwide ordering officers not 

to arrest aliens unless it was confirmed that the alien had received 

a prior conviction for a criminal offense. Aliens who cannot be arrested included but were not limited to ICE fugitives who had been 

ordered deported by a Federal immigration judge as well as aliens 

who had illegally reentered the United States after deportation, a 

Federal felony. 

ICE officers and agents also allege that they were not permitted 

to arrest or even speak to confirmed or suspected illegal aliens encountered in the field during operations and were prohibited from 

running standard criminal records checks for wants and warrants. 

First, I would like to thank Chairman Smith and his staff for 

working with the union regarding this matter after the July 25th 

hearing. Chairman Smith provided us with the opportunity to 

bring officers forward as witnesses. We were also able to turn over 

several internal ICE documents which appear to not only verify 

that these activities did in fact take place but also named several 

senior level ICE managers allegedly involved in issuing the directives nationwide. 

Second, I would like to address the impact and effectiveness of 

these types of orders. I have never heard of any law enforcement 

agency in the Nation that prohibits its officers from even speaking 

to or interviewing individuals who are inside a house in which the 

officers are attempting to effect an arrest. From a law enforcement 

standpoint, what could be the possible benefit? The only purpose of 

an order such as this is to prevent officers from making arrests, 

which ICE leadership has allegedly stated is its goal. 

50 

However, these directives not only prevent the arrest of noncriminal aliens but also prevent the identification and arrest of 

very dangerous criminals, potentially individuals involved in terrorist activities. It not only prevents officers from talking to and arresting persons who may be wanted for crimes but also individuals 

who are being victimized and in need of assistance. 

Certainly anyone can see that these practices are contrary to effective law enforcement practice and place the public at risk. Many 

officers will tell you that the majority of their best arrests, the arrests that most benefit public safety, come from unintended encounters with criminal aliens in the course of looking for a different 

target in the field. 

Of course, these practices also place our officers at risk. Nothing 

that I could ever say here today can capture the dynamics as they 

unfold when a door opens and our officers enter a house that they 

have never been in before. It is dangerous. Officers don’t know who 

is in the house or what they are capable of doing. 

Problems often arise that require officers to remain in a house 

for extended periods. Officers on the scene must have the ability 

to provide for their own safety. They should never be prohibited 

from talking to people at the scene, conducting interviews as needed, running appropriate background checks, or even making additional arrests. 

In terms of better utilizing limited resources, these types of practices clearly do not achieve that goal. As discussed earlier, arrest 

numbers for serious offenders will fall well below the potential as 

ICE prohibitions on speaking to aliens or running criminal records 

checks in the field will prevent the identification and arrests of 

many of the serious offenders. Ordering officers to walk away from 

and not arrest ICE fugitives and prior deports who have been located in the field is obviously a blatant waste of officer resources 

and undermines ICE’s mission to enforce warrants of deportation 

and the Nation’s immigration laws. 

In conclusion, the inability of ICE officers and agents to perform 

their duties reaches far beyond the officer allegations that I have 

cited today. During the last 3 years, ICE officers and agents describe what many call a roller coaster of arrest authority that has 

changed from month to month, week to week, and, at times, from 

day to day. Officers, agents, and field managers express concern 

that effective law enforcement and public safety have taken a back 

seat to attempts to satisfy immigrants’ advocacy groups. 

We commend this Committee’s efforts to bring oversight to the 

activities of this troubled agency and unconditionally commit our 

resources to this or any future inquiries made by this honorable 

body. Thank you for allowing me to speak on behalf of ICE employees. 

This concludes my testimony, and I will answer any questions. 

[The prepared statement of Mr. Crane follows:] 

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Mr. GALLEGLY. Mr. Rivkin. 

TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER, 

BAKER & HOSTETLER, LLP, WASHINGTON, DC 

Mr. RIVKIN. Mr. Chairman, Members of the Committee, it is a 

pleasure to appear before you. 

I think we can all agree that no President, no Administration can 

hope to expel every undocumented alien present in the United 


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States now, which is perhaps upwards of 11 million individuals. 

Human and financial resources to identify, apprehend, process, and 

probably deport millions of illegal aliens have been lacking for 

years; and, to some extent, so has also been the case of political 

will to do so. Now, in this environment, immigration enforcement, 

entities in both Democrat and Republican administrations performed as well as they could, given the available resources. Still, 

I think records show that millions of illegal aliens have been deported over the years. While many of them were persons convicted 

of serious nonimmigration-related criminal offenses, most deportees 

were not in that category. 

The Administration’s new policy unveiled in various ways, in addition to the memos that were discussed earlier, a number of letters from Secretary Napolitano to different Members of Congress, 

in my view is fundamentally different from this imperfect enforcement record of previous Administrations. This Administration has 

basically stated that, henceforth, deportation efforts would be focused solely on aliens with nonimmigration-related criminal 

records and no enforcement resources will be expended on other 

types of cases. That means, of course, that undocumented individuals who have avoided apprehension at the border and have not 

been convicted of serious nonimmigration offenses arriving into the 

United States will no longer face the prospect of deportation. 

Far from merely prioritizing the use of limited resources, the Administration’s policy effectively rewrites the law. It means that the 

vast majority of undocumented aliens no longer need to fear immigration law enforcement. It applies even to illegal aliens who are 

now in deportation proceedings. 

Not to use defense of a term, but the President has, in effect, 

suspended operation of those laws with regard to a very large identifiable class of offenders. And my primary concern is not even the 

policy impact of that. But it clearly exceeds his constitutional authority and sets an extremely unfortunate record. 

Now we have heard a lot about enforcement priorities; and, of 

course, we all recognize that Federal agencies do establish enforcement priorities because of a lack of resources. And particularly the 

case with law enforcement agencies, they do exercise prosecutorial 

discretion and the President can properly inform the exercise of 

such discretion. But that authority is not boundless. 

While the President, for example, can legitimately decide in a 

post-9/11 environment most of the FBI’s limited resources should 

be dedicated to the investigation and prosecution of terrorism 

cases, he cannot very well decree that no enforcement resources 

whatsoever, for example, be allocated to securities fraud or counterfeiting. The reason for it is very simple. Because the executive 

branch has exclusive license to enforce Federal criminal laws on 

our constitutional system, the President to say so would effectively 

decriminalize securities fraud and counterfeiting, derogating from 

the Federal statutes. And of course that is fundamentally violative 

of the constitutional requirements the President has to take care 

of, that the laws be faithfully executed. 

And, by the way, the Framers did not include that imperative 

language by accident. Exactly 100 years before the Constitution 

came into effect in 1788, King James II of Britain was deposed in 

59 

large part because he claimed the legal right to suspend generally, 

or dispense with in individual cases, laws enacted by Parliament. 

The Framers knew this history very well and gave the President 

no discretion but to execute laws passed by Congress. 

And as the Supreme Court has stated in a case called Kendall 

v. United States in 1838—quite a long time ago—the power to dispense with laws enacted by Congress has no countenance for its 

support in any part of the Constitution. 

So, in my view, the Administration has effectively announced its 

intent to suspend and dispense with the immigration law. That 

suspension is every bit as broad as any attempted by the British 

monarchy and is equally illegal. The President is entitled to establish enforcement priorities, but his ultimate goal must be the implementation of a law enacted by Congress. If a President disagrees 

with this law, his sole recourse is to convince Congress to change 

it. 

Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Rivkin follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Rivkin. 

Mr. Tranchant. 


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TESTIMONY OF RAY TRANCHANT, DIRECTOR, ADVANCED 

TECHNOLOGY CENTER, TIDEWATER COMMUNITY COLLEGE 

Mr. TRANCHANT. Thank you. 

As I can tell, the current position on illegal immigration by the 

Obama administration—and I am gleaning this from press releases 

and all that I can read about it—is that there are three things. He 

is for amnesty with a secured border to slow down the flow; promotion of the DREAM Act that somehow translates to a 14th 

Amendment right for children; and amnesty with a path to citizenship that is undefined at this time. This all sounds like a plan with 

no details or like a wish list until another election. 

The American leadership must either continue to enforce the 

laws that the current executive branch selectively ignores or encourage a movement to change them. After all, laws are nothing. 

Enforcement is everything. 

Amnesty diminishes the allegiance of the immigrants who follow 

the legal process. It questions our approach to national security, increases crime, promotes tax evasion, and has public health challenges, of course. Currently, there are millions of people with no 

fingerprints on record, no IDs, birth records, health records, visas, 

passports. This causes confusion and worry during a great recession. 

During the Great Depression in 1932, more people left the country than immigrated. Hopefully, history doesn’t repeat itself again. 

It hurt the U.S. when my hero, Ronald Reagan, favored amnesty 

for illegal immigrants during the Cuban boat crisis in 1986. But let 

me finish. It caused all the havoc that Castro intended in a much 

smaller scale than today. Fidel cleaned out the jails and allowed 

Cubans to board boats, encouraged them to leave in a risky attempt to gain a better life 90 miles away. After all, times were 

tough in Cuba back then. There were a million immigrants that we 

took in in 1986, a number far less than the estimated 14 million— 

I disagree with the other figures—14 million today that seek amnesty. 

Once we waved that magic wand, they were not required to 

speak English. They did not have to have knowledge of our government. Reagan’s rationale then was covered under the 1980 Refugee 

Act. They were boat people. They were ‘‘refugees.’’ He couldn’t just 

let them die. I agree. If they were sent back to Cuba, who knows 

what would have happened. 

So in the past few years, former President Fox of Mexico promoted a similar move. He encouraged the northern part of Mexico 

to ‘‘seek their fortune’’ by crossing the border. Today, President 

Calderon is more cooperative with the United States—we know 

that from hearings—to stop the flow, but narco terrorism is his biggest challenge and ours as well. Last year, 3,000 Mexicans were 

murdered no more than 300 feet from the U.S. border. It gravely 

affects the United States as well, not to mention the Border Patrol 

agent who was shot and killed during the last Christmas holiday. 

These agents risk their lives daily protecting a broken system. I 

watch TV, just like you. I watch shows like Border Wars on Nat 

Geo and other reality shows, and I am shocked at how undermanned these people are. 

67 

Can the United States Government do a better job securing the 

border? Listen, sure it can. For example, take Area 51 in Nevada. 

It is a secure governmental site the size of a small state. I have 

seen it, and it is impenetrable. Unwelcome visitors there will be 

stopped and arrested in the name of national security. 

My parents were immigrants. They had to speak English for 

safety reasons in the factories and coal mines. They had to pass a 

citizenship test, stay out of trouble, have a public health record, 

birth record to verify their age and lineage, pay taxes on all their 

earnings, and had total buy-in on the American Dream. 

People who break in and come illegally don’t possess the same 

buy-in. I just don’t believe it. 

Immigration and Customs Enforcement continues to prioritize 

enforcement of the laws by the hottest crisis of the moment. They 

are getting support deporting more criminals, sure, but are still unable to keep on top of these numbers. 

My late daughter Tessa and her friend Allison Kunhardt were 

killed in Virginia Beach by a repeat DUI offender, an illegal with 

a fake driver’s license from Florida. He was handed off many times 

and was not a priority call to ICE for deportation. Tessa has a 

grandmother as well. Her name is Anita Carson from Chihuahua, 

Mexico. Tessa’s ‘‘Noni’’ was an immigrant who worked on B-17s 

during World War II in San Diego. And I will tell you this. She is 

appalled that migrants would get the same rights to citizenship by 

sneaking across the border. She is Hispanic. The Hispanics I know 

generally are concerned about their America as well and worry that 

the current Administration focuses on potential Hispanic boats and 

not about American Hispanic safety and prosperity. 

Once again, these and many more victims of crimes committed 

by illegals were lost in the justice system, sometimes invisible or 

awaiting under a deportation order. There are many, many more 

stories like this. In sanctuary cities, ICE doesn’t even get a call, 

which is another problem driven by politics. So how long will it be 

until America finds a fair solution to this? 

Just one mention, finally, Sunday, on November 6th, there will 

be a national day of remembrance for victims of illegal immigrants 

in cities all over America. The gatherings will pay homage to those 

who have lost their lives to the hands of illegal foreigners to show 

in silence in candlelight vigils that they will never be forgotten. 

I want to quote one thing before I close. In 1965, the United 

States Congress enacted a law that stopped putting a ceiling on immigration. 1965. It was in conjunction at the same time with the 

civil rights movement. After all, why would we put a limit on 

bringing people into our country? That was the whole idea of the 

law. 

And here is what Senator Kennedy said, God rest his soul: The 

bill will not flood our cities with immigrants. It will not upset the 

ethnic mix of our society. It will not relax the standards of admission. It will not cause American workers to lose their jobs. 

Well, I am sorry. He was wrong. So we are in a little bit of a 

pickle here, aren’t we? We can’t send them back. It costs too much 

to keep them. It costs $100 a day. Of course, a plane ticket would 

cost $200, wouldn’t it? Back home. 

Thank you, and I will answer any questions that you have. 

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[The prepared statement of Mr. Tranchant follows:] 


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Mr. GALLEGLY. Thank you Mr. Tranchant. 

Mr. Virtue. 

TESTIMONY OF PAUL VIRTUE, PARTNER, 

BAKER & McKENZIE, LLP 

Mr. VIRTUE. Thank you, Mr. Chairman, Ranking Member 

Lofgren, Members of the Subcommittee. Thank you for the opportunity to appear before you today to share my perspective on the 

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our Nation’s immigration laws. The views I express today and in 

my written testimony are my own. I am not speaking on behalf of 

my law firm or any of its clients. 

Having witnessed immigration enforcement firsthand from the 

Reagan administration to the Obama administration, I have to say 

that the emphasis on removal of noncitizens and the dedication of 

the officers responsible for immigration enforcement have never 

been higher. But even with the impressive statistics recited by Director Morton here today, immigration enforcement resources are 

not limitless. To get the most of those resources in terms of protecting the border, promoting national security, and ensuring public safety, the executive branch has to establish enforcement priorities. Every Administration has done so. 

The process of establishing enforcement priorities necessarily involves identifying characteristics that makes some cases a higher 

priority than others. There are trade-offs. For example, the decision 

by INS during the 1990’s to focus on the removal of aliens who 

have been convicted of crimes resulted in a lower priority and 

fewer resources being applied to work site enforcement operations. 

Even at the seemingly high rate of 400,000 removals per year 

that we heard today, judgments have to be made on a case-by-case 

basis and under reasonable guidelines to ensure that the goals of 

homeland security border protection and public safety are met. The 

uniform application of those guidelines law through enforcement 

decisions is, in my view, as important to good government as the 

authority to arrest, detain, charge, and remove noncitizens. 

The authority of law enforcement agencies to exercise discretion 

in deciding what cases to investigate and prosecute under existing 

civil and criminal law is fundamental to the American legal system. Every prosecutor and police officer in the Nation makes daily 

decisions about how to allocate enforcement resources based on 

judgments about which cases are the most egregious, which cases 

have the strongest evidence, which cases should be settled, and 

which cases should be brought forward to trial, for example. Border 

Patrol agents, immigration officers, and DHS attorneys must do 

the same every day. 

The Supreme Court has made it clear that an agency’s decision 

not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to the agency’s absolute discretion. 

In Heckler v. Chaney, the Supreme Court said: An agency generally cannot act against each technical violation of the statute it 

is charged with enforcing. The agency is far better equipped than 

the courts to deal with the many variables involved in the proper 

ordering of its priorities. Finally, we recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the executive branch not to 

indict, a decision which has long been regarded as the special province of the executive branch, inasmuch as it is the executive who 

is charged by the Constitution to take care that the laws be faithfully executed. 

On June 17 this year, John Morton, Director of Immigration and 

Customs Enforcement, issued two memoranda to agency personnel 

clarifying the role of prosecutorial discretion and immigration agenVerDate Aug 31 2005 14:13 Jan 18, 2012 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\101211\70670.000 HJUD1 PsN: 70670
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cy enforcement actions. Neither document represents in any respect a change to existing law or a departure from permissible policy but instead they clarify responsibilities inherent in the exercise 

of prosecutorial discretion. 

The first memorandum, entitled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities 

of the Agency for the Apprehension, Detention, and Removal of 

Aliens, builds upon and cites prior prosecutorial discretion guidance reaching back to 1976 and outlines the nature of prosecutorial 

discretion, the personnel in power to exercise that discretion, and 

both positive and negative factors to consider in deciding whether 

to proceed with immigration enforcement action. 

The second memorandum, which is essentially a reminder that 

the prosecution of certain victims, witnesses, and plaintiffs is 

against ICE policy. 

On August 18, 2011, in a letter to Senator Dick Durbin and 21 

other Senators, DHS Secretary Janet Napolitano announced a new 

process for implementation of the June 17, 2011, prosecutorial discretion memoranda. The letter included a background two-pager 

that summarized DHS efforts to date of establishing enforcement 

priorities and described the role of a new interagency working 

group tasked with reviewing individual cases in removal proceedings. 

None of these memoranda established categorical decision to refrain from enforcement, and each of them cites the need to make 

these decisions on a case-by-case basis. 

Thank you again for this opportunity. I welcome your questions. 

[The prepared statement of Mr. Virtue follows:] 

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Mr. GALLEGLY. Thank you, Mr. Virtue. 

Mr. Crane, in testimony that you made back on June 25 of this 

year, ICE union leaders issued a vote of no confidence in ICE Director John Morton. You state now that the ICE union remains 

more committed than ever in no confidence. Can you explain that 

in brief detail? 

Mr. CRANE. Yes, sir. I think there are a lot of issues that don’t 

necessarily pertain to this hearing, but I think there are probably 

things that maybe the Members should know. 

ICE is 208th in employee job satisfaction and morale. It is a horrific place to work. Retaliation is rampant. The treatment of U.S. 

citizens that work for that agency in terms of my experience is 

worse than what illegal aliens have ever alleged. I mean, literally, 

you know, acting like bullies to females, pregnant mothers, putting 

children in hospitals, you know, pregnant mothers. It is an ugly 

place to work. 

And Director Morton has done zero to make that change, to turn 

that around. It is just an awful place to work. 

Now in terms of measures such as this, there is definitely a feeling in the field amongst our officers and agents that he does not 

have our back, that his intentions are not to create an agency with 

the intention of having stronger law enforcement but, instead, catering to special interest groups. 

And if you look at practically every single significant enforcement 

policy ICE has put out in the last 3 years, the union has been excluded from every single policy. That means our officers and our 

agents and our employees, they are excluded from everything. Performance-based detention standards alone, the agencies worked on 

for 3 years, but they have refused to bring the union in to bring 

our expertise to the table; and the end result has been, 3 years 

later, we don’t have a performance-based detention standard. And 

the one that we do have is more dangerous perhaps than anything 

that we have had in the past. It places the lives of detainees at 

more risk as well as officers at more risk than our previous standards did. So we have a lot of reasons why we still stand behind 

that vote of no confidence. 

Mr. GALLEGLY. Thank you, Mr. Crane. 

Mr. Rivkin, the 3- and 10-year bars—something I am very well 

aware of from 1995—to the admissions of aliens who had formerly 

been in the U.S. illegally were designed to combat visa overstays 

and provide a real sanction for the violation of our immigration 

laws. The Administration is now trying to get around the 3- and 

10-year bars that were signed into law by President Clinton by 

simply paroling in place illegal immigrants with Green Card applications so they never have to leave the U.S. Do you consider this 

a blatant attempt by the Administration to disregard an act of Congress? 

Mr. RIVKIN.That is correct, Mr. Chairman. And, again, particularly undertaken in the broader context. 

And it is interesting—we had a lot of discussions again earlier 

about prosecutorial discretion. What troubles me the most on not 

just the memos but clear statements by the Administration that 

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ing the letter by Secretary Napolitano—no resources would be 

spent on lower-priority cases. 

And, again, it is easy to fix this problem. All the Administration 

would have to do is to step forward and say, no, it is not true. That 

could be done by the President. It could be done by Secretary 

Napolitano. We are going to spend most of our enforcement priorities on these high-priority cases, but enough would be spent on 

other categories. That is a legitimate prosecutorial discretion. 

Saying we will spend no resources—going back to my analogy 

about decriminalizing counterfeiting and securities frauds—saying 

we are going to spend no resources on lower-priority cases is not 

any kind of prosecutorial discretion I can recognize. It is a suspending power and is profoundly unconstitutional and very troubling. 

Mr. GALLEGLY. Thank you very much, Mr. Rivkin. 

Mr. Virtue, if you were at ICE, would you have approved the 

Morton memo? And why didn’t the Clinton administration issue 

such memos, opening up administrative amnesty to millions of illegal immigrants? 

Mr. VIRTUE. Mr. Chairman, I don’t necessarily agree with the 

premise that this is opening up amnesty for millions of illegal immigrants. There was a memorandum establishing parameters for 

prosecutorial discretion that was issued during the Clinton administration. It was issued by Commissioner Meissner in 2000, in fact, 

in response to a letter from Members of Congress, asking that such 

parameters be developed in order for discretion to be exercised in 

appropriate cases. 

Mr. GALLEGLY. Well, I see my red light is on, and I am going to 

respect it. But I have to respectfully question the definition of amnesty, with all due respect. 

Ms. Lofgren. 

Ms. LOFGREN. Yes. Thank you. 

I think I will take up where Mr. Gallegly left off. 

Mr. Virtue, you were—and it is good to see you again. I remember when you were with the Department and Ms. Meissner was the 

Commissioner and we had a lot of back and forth at the time, not 

always a positive one on the part of the Committee. 

But you have heard the testimony, that the suggestion is that no 

enforcement resources will be expended on these cases and, therefore, this is very different than past efforts that didn’t cause any 

problem. Is that your reading of Mr. Morton’s memo? 

Mr. VIRTUE. No, it is really not. I just respectfully disagree with 

that representation about the three memos, actually. But I just 

have to question why the Morton memo would include some 20 different factors for consideration if the decision had been made by 

the Administration simply to focus all resources on the removal of 

criminal aliens and none on any other removal actions. That could 

have been a one-page, a half-page memorandum. 

Ms. LOFGREN. In your written testimony, you talk about the 1996 

immigration law that expanded the grounds of removal and substantially eliminated the ability of immigration judges to grant a 

relief from removal on a case-by-case basis. Do you think it is fair 

to say that the elimination of the judicial authority to grant relief 

was responsible for the kinds of cases of so-called unjustifiable 

87 

hardship that was referenced in the letter, the bipartisan letter 

that Congressman Smith signed when you were general counsel? 

Mr. VIRTUE. Yes. I have no doubt about that, that it was, in 

fact—the restrictions were a product of the 1996 act that created 

exactly some of those compelling cases that we were being asked 

to address. 

Ms. LOFGREN. So it would be correct then—or you will tell me 

if this is incorrect—that the letter that Mr. Smith signed and Mr. 

Sensenbrenner signed asking the Administration when you were 

general counsel to issue prosecutorial discretion guidance was actually asking the Administration to use its inherent authority to alleviate unacceptable hardship that resulted from those 1996 

changes in the law? 

Mr. VIRTUE. Well, that is right. There would seem to have been 

a clear understanding on the part of Mr. Smith and the authors of 

the letter that the Administration did have—that the executive 

does have that prosecutorial discretion and that there are appropriate cases in which it should be exercised. 

Ms. LOFGREN. Now since I have been a Member of the Judiciary 

Committee the entire time I have been in Congress and certainly 

since 1996, I don’t recall that we have made any changes to the act 

that provides meaningful discretion to the immigration judges since 

the 1996 act. Are you aware of any? 

Mr. VIRTUE. No, I am not. 

Ms. LOFGREN. So the widespread agreement that some deportations were unfair and resulted in unjustifiable hardship—that is a 

direct quote from the letter—would not be changed in terms of 

what the judges could do about those cases. 

Mr. VIRTUE. No, that is right. The law simply hasn’t changed in 

that regard since 1996. 

Ms. LOFGREN. Now one of the things that I was interested in— 

and I am someone who has expressed concern, frankly, about the 

level of removals when we have failed to reform the system that 

everybody says is broken—and I think most people do—that it 

would be better instead of just barreling down on enforcement to 

actually fix the problems in the law that are creating some of these 

problems. 

But the memo actually talked about fairness to the immigrant— 

I mean the letter that Mr. Smith sent. But the memo that Mr. 

Morton sent doesn’t talk about fairness to the immigrant at all. It 

just talks about public safety and priorities from a law enforcement 

point of view. Isn’t that correct? 

Mr. VIRTUE. Yes. And that is my understanding of the purpose 

of the memo, was to exactly establish those priorities for—on the 

enforcement side. 

Ms. LOFGREN. So they would not actually—this memo wouldn’t 

be responsive to Mr. Smith’s request for leniency. It is actually a 

law enforcement priority memo. 

Mr. VIRTUE. Exactly. And in keeping with a relatively long tradition, dating back to 1976, of issuing such guidance to officers, yes. 

Ms. LOFGREN. Well, I think that is very helpful. 

I am just going to make one comment. I see my time is almost 

through, but I would like to ask unanimous consent to put into the 

record the transcript from our hearing on the HALT Act. 

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*The inserted material is excerpted from the printed record of the Subcommittee’s hearing 

held on July 26, 2011 on the ‘‘HALT Act.’’ The hearing, in its entirety, can be accessed at: 

http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg67575/pdf/CHRG-112hhrg67575.pdf. 

And I note that, at that time, Mr. Crane promised me twice to 

get me names of individuals in the Department who he had alleged 

had ordered the law not to be followed. 

I heard today in his testimony that he had had meetings—and 

I am calling them secret meetings because it was the first that I 

heard about them, was during the testimony with the majority. 

Honestly, since I was promised and we called over to the union 

yesterday to find out where was this information and was told it 

wasn’t forthcoming, I don’t believe you, Mr. Crane, because you did 

not live up to what you said you would do. And I would just ask 

the majority—not on the spot because, obviously, this isn’t the 

right forum—but if there is information that is being kept, that is 

inappropriate. And I would certainly hope that after this hearing 

we might have our counsels sit down and see what kind of secret 

documents have allegedly been provided. 

And with that, I yield back Mr. Chairman. 

Mr. GALLEGLY. Without objection, that will be part of the record 

of the hearing.* 

[The information referred to follows:] 

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Mr. GALLEGLY. Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

I would turn first to Mr. Crane and ask you, thinking of the exchange with Director Morton as the previous panel, do you know 

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that aren’t prosecuted due to a lack of prosecutors, judges, and 

prison beds? 

Mr. CRANE. I am sorry, sir. I had a problem hearing you. Could 

you repeat the question? 

Mr. KING. Yes. Do you know of cases that are essentially openand-shut made cases that are not prosecuted on the southern border because of a lack of the ability to prosecute, lack of judges, or 

a lack of prison beds? 

Mr. CRANE. Are you talking about criminal prosecution for entry 

and re-entry? 

Mr. KING. And also for illegal drug smuggling. 

Mr. CRANE. The drug smuggling, I can’t really speak to, sir. But 

as far as entry and illegal re-entry, absolutely. They don’t have the 

judges down there to support it, nor do we anywhere in the United 

States. 

If I may, most of the cases that Director Morton spoke of out of 

those—I believe he quoted 10,000 prosecutions that we did last 

year. At least in our district, it pretty much has to be an aggravated felon for us to prosecute them. So while any person that reenters the United States gets a felony and they can be prosecuted, 

we are not prosecuting those people. They are only convicted aggravated felons, for the most part. 

Mr. KING. And would you have an estimate as to what percentage we are prosecuting? 

Mr. CRANE. No, sir. 

Mr. KING. Does anyone have that data? 

Mr. CRANE. I do not, sir. 

Mr. KING. Does anyone have that data? 

Mr. CRANE. They are pretty stingy with the numbers for us. 

Mr. KING. I am going to suggest that that data has to exist, that 

we would have the interdiction numbers, and those interdiction 

numbers would be a strong indicator. 

I know that there are prosecutorial discretion cases involved 

here, too, a little bit off of what the primary subject has been. But 

I am boring in on this, that if we have such an ineffective prosecution that the perpetrators first get the message from ICE that if 

you aren’t a threat to—let’s say the political viability of the Administration is what it seems like to me—if you aren’t a threat, we are 

not going to prosecute you. If you are committing a felony, we likely don’t have the resources to prosecute you. So in both of these 

categories we hardly have any deterrent at all. 

Would you agree with that statement generally? 

Mr. CRANE. I absolutely agree with that. And, as I have said in 

my previous statements, when we go into jails oftentimes, illegal 

aliens approach us, volunteering, begging us to deport them from 

the United States because they know that they will avoid prosecution. They will avoid jail time. We will send them back to Mexico 

or Central America, South America, wherever they came from, and 

they will be back in our communities within a week or two committing the same crimes that they were before. That border is not shut 

down, I can promise you that, not when those folks are able to 

come back a week later and be in the middle of the United States, 

committing crimes and apprehended by the police again. 

93 

Mr. KING. And the deterrent effect. I remember standing in a 

border station on the Arizona border and asking the question, how 

many times do you see a unique individual come through here? The 

answer I got back was 37—actually, 38. We ran the numbers, and 

it came out of the database at 27 in either case, 27 times through 

the border and not having any enforcement. Does that number surprise you? 

Mr. CRANE. No, sir. Not at all. 

Mr. KING. Do you know of any bigger numbers than that? 

Mr. CRANE. I don’t know of any bigger numbers than that, but 

I definitely know about comparable numbers. I work on the interior 

of the country. We run the fingerprints. We get the recidivist hits. 

And they do. They come up with 20, 25 times that they have been 

apprehended at the border elsewhere and never even put into administrative proceedings and officially deported and only given voluntary removals. 

Mr. KING. Do you ever get the sense when you go to work each 

day that you are handed a shovel to dig a hole and then fill it back 

up and punch out and go home? 

Mr. CRANE. Yes, sir. 

Mr. KING. I appreciate those answers to that. 

And as the clock is ticking, I would just comment that my frustration is I don’t know how you have morale with that kind of a 

scenario if you can’t measure success. But I will turn to Mr. Rivkin; 

and thank you, Mr. Crane. 

I will turn to Mr. Rivkin, your testimony about the constitutional 

question of this discretionary amnesty or administrative amnesty 

that we have. And your arguments are very clear to me and I think 

strong, that it is unconstitutional. What would you think of the 

prospects of litigating this? 

Mr. RIVKIN. Unfortunately, most of the structural violations of 

separation of powers, I am not—it is not easy to gain standing. 

There are certainly insurmountable obstacles, but it doesn’t mean 

that that is the right way to behave. And, again, it sets a horrible 

precedent. 

Let me just say briefly again, in many respects, it is a self-inflicted wound. It is not just those documents that you were talking 

about which, with all due respect to Mr. Virtue, if you look at it, 

it clearly excludes more or less categorically whole segments of illegal alien population. 

But when you read in every major newspaper that the Administration has given briefings, combined with letters by Napolitano, to 

various immigration rights groups which basically say the following 

categories of people would not be deported, that is a remarkable— 

I cannot think of any other instance in our history that the Administration has acted—— 

You think about, can you have an environment section of the 

Justice Department say, because of resource constraints, we are 

not going to enforce the Clean Water Act, we are not going to enforce the Clean Air Act? That would be unprecedented. 

And, again, I would say the easiest way to fix it, at least in my 

opinion, is for the Administration to say, no, that is not what we 

are doing. We are going to deport individuals, maybe in small, 

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fewer numbers, who have not committed criminal—nonimmigration 

related criminal law violations. But they are not saying it. 

So, in some sense, with all due respect to everybody here, it is 

in the open. You don’t need to wait for a couple of years to see 

what the track record is. They are quite open about it, and I find 

it terribly disturbing. 

Mr. KING. I thank you, Mr. Rivkin. And just in short conclusion, 

I would say that I appreciate all the witnesses’ testimony and I 

would like to have time with Mr. Tranchant and we don’t have, but 

your story is compelling as is your testimony. Thank you all, gentlemen, and I yield back. 

Mr. GALLEGLY. I thank the gentleman. Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Tranchant, I was a prosecutor in my former life and I want 

to tell you how much my heart broke at your testimony. And the 

real cost is impossible to measure, as you so eloquently put it, and 

I will continue to think of you and your family. 

Mr. GOWDY. Mr. Crane, were you here when Director Morton testified? 

Mr. CRANE. Yes, sir. 

Mr. GOWDY. Were you given, as the White House was, an opportunity to provide input into the so-called prosecutorial discretion 

memos? 

Mr. CRANE. None, sir, whatsoever. We actually met with the 

agency the day before they released the memo and they didn’t even 

tell us it was coming out. So we heard about it from the news like 

everyone else. 

Mr. GOWDY. And what was the reaction of the line agents? 

Mr. CRANE. Well, I think it is the same as it is today, sir. There 

is still a lot of confusion in the field. I know that Director Morton 

said that he had discussed this with field office directors. But I can 

promise you that that information is not making it to most of the 

rank and file officers out in the field as to what exactly we are supposed to do with this memo and how we are supposed to enforce 

it. So overall a lot of confusion and frustration. 

Mr. GOWDY. I shared with him as I will with you, and I will also 

thank you for your service as I did him, you know, politics is in 

everything. You can’t—you can try to avoid it. You can run from 

it, but it is in almost everything. I just wonder if it is not too much 

to ask that we keep it out of the criminal justice system as best 

we can. It just strikes me that there is a political undertone to 

these memos. Am I wrong? Is it devoid of any politization; is this 

strictly a law enforcement resource priority issue or are there some 

political undertones that perhaps haven’t been addressed? 

Mr. CRANE. Well, as a union I can tell you on behalf of our officers and agents that we definitely believe this has political overtones. When you exclude your law enforcement officers, the folks 

that have the technical expertise in the field from, any kind of development of policies and you bring in special interest groups, 

which I know Director Morton said that groups weren’t brought in 

for this, or at least to his knowledge, but I know they have been 

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cies. We could be an important part of that. We could make that 

happen, but the Administration and Director Morton and Secretary 

Napolitano are not interested in that. And when we look at things 

like the discretionary—I’m sorry, the prosecutorial discretion 

memo, it is not good law enforcement, especially when you put it 

out in the field and don’t even tell us how to enforce it or give us 

any guidance. 

Mr. GOWDY. I want to ask you about two things specifically. I 

was struck that there was a second memo that carved out exceptions for certain categories of civil litigants. That struck me as— 

′′ironic’’ may not be the right word but I probably can’t use the 

right word in a public hearing. So let me ask you about part of 

your testimony. You created a fact pattern by which you could be 

executing a search warrant, executing an arrest warrant, and you 

are forbidden by policy from interacting with certain categories of 

people that are on the scene. 

Did I hear that correctly? Surely I did not. 

Mr. CRANE. That is correct, sir. Actually we did provide some internal documents to Chairman Smith. He had actually invited me 

during the last testimony to do that. He was concerned about protecting the identities of our agents that might come forward because of the fear of retaliation. 

I am sorry, I lost my train of thought there for a second. 

Mr. GOWDY. We are talking about the execution and search warrants and whether or not you can interact with certain categories 

of people who are present at suspected crime scenes or whether you 

are forbidden by policy from being able to do that. 

Mr. CRANE. Correct. Actually I have some statements written 

down on a piece of paper here that came from some of those documents. These are deputy associate directors, so they are at ICE 

headquarters, you know, top of the food chain. If the aliens you encounter are not criminals, they will not be arrested. I am telling 

you to walk away from a non-criminal fugitive—or am I telling to 

you walk away from a criminal or non-criminal fugitive reinstatement? Yes. Why are you wasting your time talking to everyone else 

in the house? Only targets will be arrested. There will be no collateral arrests of any sort. 

So when our officers go into the house at least during some of 

these operations they are being told, you will not talk to anyone in 

that house, you will get the target and you will get out. As I said 

in my testimony, that is where we make some of our most significant arrests with regard to public safety. I can’t tell you how many 

times we go in a house even to get a non-criminal and end up walking out with two serious bad guys because in the past we really 

had prosecutorial discretion and we had the ability to do our jobs 

and question people and talk to people. And by doing so, like every 

other law enforcement in the country can, we were able to identify 

far more serious bad guys than we could ever do just looking for 

simple targets. 

Mr. GOWDY. Thank you, Special Agent. Thank you, Mr. Chairman. 

Mr. GALLEGLY. Thank you, Mr. Gowdy. The gentleman from 

Tyler, Texas, Mr. Gohmert. 

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Mr. GOHMERT. Thank you, Chair. I just want to continue on that 

train of thought. With regard to information about instructions, if 

you go into a home to get someone, you are not to arrest anyone 

else in the home, was that information known in Arizona when 

they passed the law they did allowing local law enforcement to inquire of people whether or not—their legal status when they were 

detained for other reasons? Do you know when this first became 

public? 

Mr. CRANE. I do not know the answer to that, sir. 

Mr. GOHMERT. It seems like it ought to be a commendable thing 

when a State seeks to enforce the law. Because you know, the 

founding of the country was such that they thought people should 

be treated equally under the law, nobody was too good, nobody was 

too bad, everybody was to be treated equally under the law. And 

it seems like really we have degenerated into a Third World country where it is all about who you know. It is all about who is in 

power at the time as to who is going to be treated what way. And 

what disturbs me in the prosecutorial discretion, of course there is 

a million things that do, but particularly the term ‘‘the person’s 

criminal history, including arrests, prior convictions or outstanding 

arrests warrants.’’ All of you understand that just in that one little 

phrase there is one of the factors that could be utilized to use discretion. There are all kinds of scenarios, there is all kinds of room 

for abuse here and you are talking to a guy who is a former judge. 

And Mr. Tranchant, my heart has gone out to you. I had as a 

judge presiding over felonies one case where a guy was in the 

courtroom and he had been indicted for a felony for driving while 

intoxicated, and when we get around to his case, turns out he had 

many DWIs or DUIs in some jurisdictions. But he finally got to me 

after he hit somebody, thank God he didn’t kill them, and because 

he had been in jail so many times for DWI and had never been removed and because I am supposed to consider safety of the public, 

it seemed like he needed to be in prison, the man couldn’t stop 

himself from drinking and driving. So I sent him to prison. And it 

was a matter of months he was back in my courtroom for another 

felony DWI. And when I inquired through the interpreter how he 

got back so fast, he said he was taken to the Texas-Mexico border 

and ordered to walk across and he did. And he waited around on 

the other side until those folks left, and then he went around the 

bridge and came back across immediately, came back to our county 

and got drunk and drove again. 

Now, I am really curious who would ultimately, Mr. Crane, if you 

know, anybody else knows, make the kind of call, gee, there is only 

nine DWIs so let’s don’t go after this guy yet. I sent the man to 

prison and it was only after he went to prison that within I think 

it was like 3 months he said they came and got him out of prison, 

took him to the border and told him to walk across and then he 

comes back later. Who makes those calls? Well, he’s been in jail 

nine times, but now he is in prison so let’s go get him out of prison 

so he can come back down to their county down the road. Who 

makes those calls? Anybody know? 

Mr. CRANE. Those calls are made within the office generally by 

management officials. As officers we really don’t have that power, 

and it tends to be a roller coaster from week to week, month to 

97 

month as to whether or not we can actually apprehend them. I can 

tell you this. As officers we have been screaming bloody murder 

about this for years. We wasn’t every one of those guys at least put 

into proceedings for deportation. 

Mr. GOHMERT. Do you know how people are taken to the TexasMexico border when they are not put on a flight somewhere else? 

Have you seen those deportations take place? 

Mr. CRANE. Have I seen them take place at the border? 

Mr. GOHMERT. Yeah. 

Mr. CRANE. No, sir, I have not. I don’t work on the border. 

Mr. GOHMERT. Okay. Are you familiar with how it normally 

works on the border? 

Mr. CRANE. Yes. 

Mr. GOHMERT. How long to do they wait after someone is deported or taken to the border and sent across? Do you know how 

long they normally wait? 

Mr. MORTON. It varies with the individual. Some of them literally tell us, thanks for the paid vacation, I am going to go see 

my mom and then come back. Some say see you guys next week. 

So some of them turn right around that night and they come back, 

others literally stay for a couple of weeks and come back to the 

U.S. at their leisure. 

Mr. GOHMERT. I see my time has expired. 

Mr. GALLEGLY. The time of the gentleman has expired. I want 

to thank all the witnesses. And I particularly want to associate myself with the comments of Mr. Gohmert and Mr. Gowdy as it relates to you and your family, Mr. Tranchant. As a father of four 

and a grandfather of 10, I can’t imagine. And my thoughts and 

prayers are with you. 

Thank you all for your testimony today. Without objection, all 

Members will have 5 legislative days to submit to the Chair additional written questions for the witnesses which we will forward 

and ask that the witnesses respond to as promptly with their answers as they will be made a part of the record of the hearing. And 

without objection, all Members will have 5 legislative days to submit any additional material for inclusion in the record. 

Again, thank you for being here today and the Subcommittee 

stands adjourned. 

[Whereupon, at 5:18 p.m., the Subcommittee was adjourned.] 

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