U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

32–151 PDF 2007

S. HRG. 109–749

OVERSIGHT HEARING: U.S. REFUGEE ADMISSIONS

AND POLICY

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, BORDER 

SECURITY AND CITIZENSHIP

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

SEPTEMBER 27, 2006

Serial No. J–109–118

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

JOHN CORNYN, Texas, Chairman 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

REED O’CONNOR, Majority Chief Counsel 

JIM FLUG, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 15

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 69

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 2

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, parepared 

statement .............................................................................................................. 99

WITNESSES 

Gavin, Rev. Kenneth, S.J., Vice Chair, Refugee Council USA, and National 

Director, Jesuit Refugee Service/USA, Washington, D.C. ................................ 21

Horowitz, Michael J., Director, Project for Civil Justice Reform and Project 

for International Religious Liberty, Hudson Institute, Washington, D.C. ...... 18

Sauerbrey, Ellen R., Assistant Secretary, Bureau of Population, Refugees 

and Migration, Department of State, Washington, D.C. .................................. 4

Scharfen, Jonathan R., Deputy Director, U.S. Citizenship and Immigration 

Services, Department of Homeland Security, Washington, D.C. ..................... 6

QUESTIONS AND ANSWERS 

Responses of Rev. Kenneth Gavin, S.J. to questions submitted by Senator 

Kennedy ................................................................................................................ 27

Responses of Michael J. Horowitz to questions submitted by Senator Kennedy ....................................................................................................................... 30

Responses of Ellen R. Sauerbrey to questions submitted by Senator Kennedy . 34

SUBMISSIONS FOR THE RECORD 

Administrative proposal to resolve outstanding areas of disagreement, memorandum .................................................................................................................. 55

American Jewish community organization leaders, letter ................................... 60

Brand, Rachel L., Assistant Attorney General, Office of Legal Policy, Department of Justice, Washington, D.C., statement .................................................. 63

Faith-based community leaders and individuals, letter ....................................... 66

Gabaudan, Michel, Regional Representative for the United States of America 

and the Caribbean, Office of the United Nations High Commissioner for 

Refugees, Geneva, Switzerland, statement ........................................................ 71

Gavin, Rev. Kenneth, S.J., Vice Chair, Refugee Council USA, and National 

Director, Jesuit Refugee Service/USA, Washington, D.C. ................................ 78

Horowitz, Michael J., Director, Project for Civil Justice Reform and Project 

for International Religious Liberty, Hudson Institute, Washington, D.C. ...... 89

Sauerbrey, Ellen R., Assistant Secretary, Bureau of Population, Refugees 

and Migration, Department of State, Washington, D.C. .................................. 101

Scharfen, Jonathan R., Deputy Director, U.S. Citizenship and Immigration 

Services, Department of Homeland Security, Washington, D.C. ..................... 106

(1)

OVERSIGHT HEARING: U.S. REFUGEE 

ADMISSIONS AND POLICY 

WEDNESDAY, SEPTEMBER 27, 2006

UNITED STATES SENATE, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND

CITIZENSHIP, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:59 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, Chairman of the Subcommittee, presiding. 

Present: Senators Cornyn, Brownback, and Kennedy. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Chairman CORNYN. This hearing before the Senate Subcommittee on Immigration, Border Security and Citizenship will 

come to order. I want to thank Chairman Specter for scheduling today’s hearing, and, of course, I appreciate my Ranking Member, 

Senator Kennedy, for his enormous contributions to this hearing 

and on this subject. 

There is a great American tradition of providing safe haven for 

refugees, a tradition that dates back to the founding of our Nation. 

The United States accepts more refugees than any other country in 

the world. The refugee resettlement program advances our National interests and our democratic values. And let us not forget it 

saves lives. 

However, while the refugee ceiling remains at 70,000 the Government has not consistently been able to meet this threshold established by the President. One explanation often cited for the inability to meet this threshold is that legitimate refugees are barred because the definition of ‘‘terrorist activity’’ is too broad. Under provisions of the Immigration and Nationality Act, refugees may be denied entry into the United States on terrorism grounds because 

they provided ‘‘material support’’ to terrorist organizations. Yet 

there are more than 10 million refugees around the world. I question whether the material support issue alone can account for the 

United States not achieving the capped goals. And so I look forward to hearing from our panelists about other obstacles to reaching the refugee admission, too. 

Finally, I believe it is important to examine how refugee assistance funds are spent by the Department of State. Many critics 

have asserted that in the past, the State Department has spent 

most of its refugee assistance funding on short-term needs, like 

food, medicine, and housing. Obviously, while these needs are critVerDate 0ct 09 2002 11:13 Jan 29, 2007 Jkt 032151 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32151.TXT SJUD4 PsN: CMORC
2

ical, we must not lose sight of the long-term needs of the refugees, 

including education, skills development, and integration into the 

host country. 

With that, let me turn the floor over to Senator Kennedy for any 

opening statement he would like to make. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Senator Cornyn, for 

holding these hearings, and thank you for also your leadership on 

this Committee and on this issue. We welcome the opportunity to 

join with you in meeting with the Secretary of State recently and 

also with our panelists on that particular occasion. So we thank 

you very much for giving us a chance to have out in the open the 

refugee policy and the administration’s position. 

The Committee has the important responsibility to analyze the 

conditions around the world affecting refugee protection and resettlement to help the U.S. refugee admissions program to respond 

more effectively to the challenges facing it. As the Chairman pointed out, each year countless refugees are forced to leave their countries, fleeing persecution. America has always been the haven for 

those desperate for such protections. At the very beginning of our 

history, the refugee Pilgrims, seeking religious freedom, landed on 

Plymouth Rock. Ever since, we have welcomed refugees. It has 

made us a better Nation, and refugees represent the best of American values. They have stood alone at great personal cost against 

hostile governments for fundamental principles like freedom of 

speech and religion. They have fled bombings, gunfire, torture, 

rape, genocide. And they have endured unspeakable misery and 

suffering. 

But they also bring with them the personal stories of hope and 

courage and triumph, and America offers them an opportunity for 

a new life, to live without fear, to go as far as their talent and energy allow, and we in turn are enriched by their presence. 

The estimated decline in the refugee population worldwide from 

16.4 million in 2000 to 13.1 million is welcome news, but it is disturbing that more than 7 million refugees have been restricted to 

camps or isolated settlements for a decade or more—the 

warehousing issue. They are trapped in various places around the 

world—Burmese refugees in Thailand, Bhutanese in Nepal, Angolans in Zambia, Congo-Kinshasans in Namibia, 280,000 Eritreans 

in the Sudan. Yet in this legislative year, which ends in a few days, 

the U.S. is expected to admit fewer than 42,000 refugees in this fiscal year, even though the admissions target was set at 70,000. As 

a result, nearly 28,000 refugee slots have been wasted this year 

alone, and over the past decade the refugee admissions program 

has fallen behind in its admission goals by an average of 19,000 

per year. 

The trend should not continue. It is contrary to America’s heritage and history. It allows needless suffering of innocent refugees 

to persist. It gives an excuse to other countries to not do their part. 

Deserving refugees were available to fill most of these 28,000 slots. 

More than half slated to be filled by refugees who were otherwise 

eligible were excluded by their association with groups that are no 

3

threat to the United States. They have not been identified by the 

National Intelligence Director Negroponte or Secretary Rice or 

Counterterrorism Coordinator Crumpton as groups of concern. 

Many of the groups have common goals with the United States in 

opposing oppressive regimes, such as those in Burma and Cuba. 

Nevertheless, the administration applies the broad definition of 

‘‘terrorism’’ to keep them out, and we are to hear today how the 

State Department and DHS intends to address this problem so we 

can admit more deserving refugees. 

There have been some positive changes in the refugee program, 

such as extending refugee admission to North Koreans and greater 

attention to stateless warehoused populations. We had a chance to 

review those at our meeting, and I commend the United Nations 

High Commissioner for Refugees and many refugee and humanitarian organizations for their extraordinary commitment to resolving these problems. I look forward to the testimony of the distinguished witnesses, particularly in the areas of funding refugee assistance and protecting Iraqi refugees for solutions for long-term 

refugees and the Darfur crisis. That is of special interest. And we 

understand—we had talked, I think, at the time of our meeting 

about some of the resources that were necessary to try and process 

some of the—both immigration and refugees, and we understand 

that there might be some positive news about that, which hopefully 

we will hear about. 

Thank you, Mr. Chairman. 

Chairman CORNYN. Thank you, Senator Kennedy. 

At this time we will make part of the record the opening statements of Senator Leahy and Senator Feingold, without objection. 

Our first witness is Hon. Ellen Sauerbrey, Assistant Secretary of 

the Department of State for Population, Refugees, and Migration. 

She was appointed to that position by President Bush on January 

12, 2006. Before her appointment of Assistant Secretary, Ms. 

Sauerbrey served as U.S. Representative to the United Nations 

Commission on the Status of Women. In that capacity, she led the 

U.S. delegation to the Baltic Sea Conference on Women and Democracy in Estonia and has spoken at numerous international 

women’s conferences. 

We also have with us Mr. Jonathan Scharfen, Deputy Director of 

U.S. Citizenship and Immigration Services at the Department of 

Homeland Security. He was appointed by Director Emilio Gonzalez 

on June 22, 2006. Before his appointment to that responsibility, to 

that job, Mr. Scharfen served in the United States Marine Corps 

and retired in August 2003 at the rank of Colonel following 25 

years of active-duty service. Mr. Scharfen also previously served as 

Chief Counsel and Deputy Staff Director of the House International 

Relations Committee. 

I would like to ask you please to stand so I can administer the 

oath. Do both of you swear that the testimony you are about to give 

is the truth, the whole truth, and nothing but the truth, so help 

you God? 

Ms. SAUERBREY. I do. 

Mr. SCHARFEN. I do. 

Chairman CORNYN. Thank you very much. Please be seated. 

4

Let me start with Ms. Sauerbrey. We will be glad to hear your 

opening statement, please. 

STATEMENT OF ELLEN R. SAUERBREY, ASSISTANT SECRETARY, BUREAU OF POPULATION, REFUGEES AND MIGRATION, DEPARTMENT OF STATE, WASHINGTON, D.C. 

Ms. SAUERBREY. Thank you, Senators. I am very pleased to have 

the opportunity to participate in this afternoon’s public hearing on 

the President’s refugee admissions program for 2007. I want to tell 

you, I am very passionate about this program, and I share the passion that I heard from you. The administration is committed to 

maintaining a robust admissions program as an integral component of our effort to promote the President’s freedom agenda and 

to champion human dignity globally. Though fiscal year 2006 has 

been a challenging year, there is a lot of good news to report about 

this very important humanitarian program. 

Among the best news is the fact that the worldwide population 

of refugees is indeed at its lowest level in 26 years. By the end of 

2005, the estimated refugee population worldwide had declined to 

13 million; 8.7 million of those are under the care of the United 

Nations High Commissioner for Refugees, and most of the remainder is under the care of UNRA. Millions of Liberians, Afghans, Sudanese, Burundians, and others have been able to return to their 

homelands or have found permanent refuge in asylum locations. 

The President has proposed that the United States this year 

admit up to 70,000 refugees. We would allocate 50,000 of the refugee numbers among regions based on existing or identified caseloads. The unallocated reserve of 20,000 would be used as we identify and are in the process of identifying additional refugee populations for processing. I recently had the opportunity to visit three 

refugee hosting countries in Southeast Asia—Bangladesh, Malaysia, and Thailand—and saw very clear evidence of the need to extend the reach of our program to thousands of Burmese refugees 

who require resettlement if they are going to be able to end the 

limbo of living in these protracted situations. 

We come into this year with a healthy number of refugees, nearly 20,000, in advanced stages of resettlement processing. We are already working with our overseas partners to process several large 

new populations for the program such as Burundians in Tanzania, 

Eritrean Kunama in Ethiopia, as well as vulnerable Congolese in 

Burundi. The Humanitarian Resettlement program in Vietnam for 

those who were unable to apply to the Orderly Departure Program 

is now underway, and the first people accorded status under this 

program arrived in the United States in September, this month. 

While the international community is making some, although slow, 

progress in achieving agreement on durable solutions for the 

106,000 Bhutanese in Nepal, having had several meetings on this, 

I am very hopeful that the coming year will end what has been a 

decade-long stalemate and produce concrete results with this population. 

The program continues to target diverse populations of refugees 

throughout the world. We are on track to admit about 41,200 refugees this year representing over 60 nationalities. Interagency cooperation has never been more important to the sustaining of the 

5

successful implementation of this program. The Refugee Corps at 

the Department of Homeland Security’s Citizenship and Immigration Services is working closely with the Department of State to adjudicate applications of those that are provided access to our program in more than 50 locations around the globe. 

We continue to lead the world in refugee resettlement, accepting 

over 60 percent of the individuals referred by UNHCR in 2005 and 

admitting more refugees each year than all the rest of the world 

combined. Through multilateral and bilateral efforts and bilateral 

representations, we have been able to support UNHCR in promoting the expansion of countries that are engaged in resettlement. Brazil, Chile, Argentina, Spain, Ireland, and the United 

Kingdom are some of the nations that have joined in this important 

humanitarian work in recent years. We also continue to enhance 

UNHCR’s ability to identify and refer refugees for resettlement by 

working with them to ensure that field offices have the resources 

that are necessary for them to carry out this important work. 

Our collaboration with NGOs is a critical part of our program. 

We have solicited and received ideas and benefited from the research of NGO colleagues regarding resettlement needs and priorities. We have also implemented a mechanism to allow NGOs engaged in refugee assistance overseas to refer compelling cases directly to us. 

I am also pleased to report that, having overcome some significant obstacles this year, we admitted the first nine North Korean 

refugees since the passage of the Human Rights Act. While we expect that most North Koreans seeking refuge will continue to resettle in the Republic of Korea, we are very happy to be contributing 

to this humanitarian effort and are working diligently to ensure 

that more will be admitted here in the coming year. 

It is clear that the program has felt the impact of post-September 

11th expansions in the scope of terrorism- related inadmissibility 

provisions of the Immigration and Nationality Act. 

As a result, the Departments of State, Homeland Security, and 

Justice have been engaged in efforts to exercise the inapplicability 

provision contained in the INA. This means that these amendments do not apply to refugee applications of individuals who pose 

no security threat to the United States and that we would otherwise want to admit. 

In consultation with the Secretary of Homeland Security and the 

Attorney General, the Secretary of State has twice invoked what 

has been referred to as the ‘‘inapplicability authority,’’ that is, the 

authority not to apply to particular groups or individuals the INA 

provision that bars those who provide material support to groups 

that are deemed ‘‘terrorist organizations’’ under the vast expansion 

of the definition in the law. The exercise of the inapplicability authority benefited Burmese Karen refugees in Thailand who supported groups that share U.S. goals and pose no security threat to 

the U.S. We continue to review other populations for similar consideration and expect that additional refugees will benefit from the 

use of this authority in the near future. 

Unfortunately, the inapplicability provision does not address 

other meritorious cases, such as Cuban anti-Castro freedom fighters, Vietnamese Montagnards who fought alongside of U.S. forces, 

6

and Karen who participated in resistance against brutal attacks on 

their families and friends by the Burmese regime. The administration is working on developing a solution to address these groups. 

The President’s fiscal year 2007 budget request would support 

70,000 admissions, and we urge Congress to fund the President’s 

full request. Without a healthy appropriation, we will be unable to 

offer resettlement to thousands of refugees who are in desperate 

need of our help. 

The refugee resettlement program is an enormously important 

foreign policy tool. Its use can also promote acceptance of other durable solutions, such as repatriation and local integration. We are 

doing our best to ensure that the program is flexible and that we 

provide access to refugees for whom resettlement is the appropriate 

solution. It is the administration’s view that important national security concerns and counterterrorism efforts are compatible with 

our historic role as the world’s leader in refugee resettlement. We 

will continue to seek opportunities to strengthen these two important policy interests. We look forward to working with you and 

other concerned members of the Senate and House to restore the 

necessary balance between national security concerns and our Nation’s legacy as a refuge for the persecuted. 

The United States’ refugee admissions program has always been 

and remains a wonderful reflection of who we are as Americans: 

generous, compassionate, and immensely proud of our cultural diversity. As President Bush said, and I quote, ‘‘All who live in tyranny and hopelessness can know: the United States will not ignore 

your oppression, or excuse your oppressors. When you stand for 

your liberty, we will stand with you.’’ 

Thank you for your continued support of this very important program. I look forward to answering your questions. 

[The prepared statement of Ms. Sauerbrey appears as a submission for the record.] 

Chairman CORNYN. Thank you, Madam Secretary. Thank you for 

that testimony and for your service. 

Mr. Scharfen, we would be glad to hear any opening statement 

you may care to make. 

STATEMENT OF JONATHAN R. SCHARFEN, DEPUTY DIRECTOR, 

U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. SCHARFEN. Thank you, Mr. Chairman and Senator Kennedy. 

I am honored to have this opportunity to discuss the President’s 

proposal for refugee admissions in fiscal year 2007. U.S. Citizenship and Immigration Services enthusiastically supports the proposed ceiling of 70,000 refugee admissions for the upcoming fiscal 

year. We are committed to providing the staff and resources to 

meet the goals outlined in the Annual Report to Congress on Refugee Admissions. 

As part of the Department of Homeland Security, USCIS has responsibility for interviewing applicants for refugee resettlement, 

adjudicating their applications, and ensuring that necessary security checks are fully performed. For the first time this fiscal year, 

members of the newly formed Refugee Corps fulfilled this role for 

the USCIS. The establishment of the Refugee Corps is a major sucVerDate 0ct 09 2002 11:13 Jan 29, 2007 Jkt 032151 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32151.TXT SJUD4 PsN: CMORC
7

cess for the U.S. Refugee Admissions Program as a whole, and 

USCIS in particular. Today, we have nearly 30 refugee officers on 

board, with others in the hiring pipeline. We are very grateful to 

members of this Committee and this Subcommittee for your steadfast support for this initiative from its conception to reality. 

USCIS is dedicated to preserving and promoting our National security. At the same time, we are deeply committed to continuing 

to provide protection to deserving refugees around the world and 

to upholding our tradition as a Nation of immigrants. Due to national security imperatives, legislation passed in recent years 

greatly expanded the definition of ‘‘terrorist activity’’ and ‘‘terrorist 

organizations’’ for purposes of determining which foreign nationals 

may be admitted to this country. The legislative initiatives included a provision making aliens who provide ‘‘material support’’ to 

individuals or organizations that engage in terrorist activity inadmissible to the United States. 

The broad language of the terrorist activity provision in the Immigration and Nationality Act has had an impact on refugee admissions this year. However, the two recent exercises of the discretionary exemption authority contained in the INA by Secretary 

Rice for Burmese Karen refugees living in certain camps in Thailand show that the interagency process is capable of successfully 

addressing these challenges issues. 

For USCIS’ part, we consider the first exercise of Secretary Rice’s 

material support exempt authority for ethnic Karen Burmese refugees in Tham Hin Camp in Thailand to have been very successful. 

Our refugee officers who worked in the Than Hin Camp were able 

to explore all relevant facts and recommend sound decisions on the 

eligibility of refugee applicants on a case-by-case basis. We continue to work on an intra-agency basis to consider other groups 

that may be good candidates for future exercises of exemption authority. 

USCIS is committed to a strong partnership with its Federal, 

international, and nongovernmental partners to support a robust 

U.S. refugee resettlement program. We are equally committed to 

ensuring the integrity of our adjudications process. As such, we collaborate with our partners, including law enforcement and national 

security colleagues, and international and nongovernmental organizations to achieve our common objective: offering refuge to some of 

the most threatened populations around the world, while continuing to ensure the security of those who offer this refuge, the 

American people. 

I would be happy to respond to any questions you may have. One 

note I would like to add is that just recently we got word regarding 

our term employees, and if you are interested in asking questions 

about that, gentlemen, I will be ready to talk about USCIS the 

term employees issue that I think now both of you have been very 

interested in. 

Thank you very much. I look forward to your questions. 

[The prepared statement of Mr. Scharfen appears as a submission for the record.] 

Chairman CORNYN. Well, thank you, Mr. Scharfen. Rather than 

hold us in suspense, why don’t you tell us about it? 

[Laughter.] 

8

Mr. SCHARFEN. Yes, sir. 

Chairman CORNYN. I know this is a subject of some concern to 

Senator Kennedy and myself in meeting with you and Secretary 

Sauerbrey and Secretary Rice. Could you fill us in? 

Mr. SCHARFEN. Yes, sir. Just last evening, we received word from 

the Office of Personnel Management that USCIS would have the 

authority to extend the employment of the term employees that we 

had working for USCIS. As you know, this is a matter of both authority and resources. What we have now is the authority to extend 

these terms. It is our intention to extend term employees until at 

least January 31st of 2007. This would affect 350 term employees, 

additional employees, and that is a rough calculation that we just 

did today. So that is an approximation. But that is our intent. 

We will have to then take a look at our internal funding. As you 

know, we are a fee-funded organization, and we will have to be 

making some shifts in our funds to be able to pay for those employees. But that is our intention, and we will do that. 

Chairman CORNYN. What would have been the consequences of 

failure to extend this term—

Mr. SCHARFEN. I think we were concerned that we would lose 

some valuable experience and very good employees who are important for us to the USCIS in being able to maintain our current 

workload. And all projections are that our workload will either remain steady or increase. 

Senator KENNEDY. Would the Senator just yield? What was the 

reduction of backlog to reduce that backlog of cases—I have not got 

the figures here, but I think it was something like 2.5 million down 

to—

Mr. SCHARFEN. Yes, sir. It—

Senator KENNEDY. It was still significant, but at least it was dramatic. 

Mr. SCHARFEN. It was dramatic, yes, sir. At one point in the year 

2004 we had a backlog of 3.8 million, and we have reduced that 

backlog now to—

Senator KENNEDY. In terms of people waiting, I mean, that 

meant that the individuals and families were going to be waiting 

for a very considerable period of time, 18 months, even longer. 

Mr. SCHARFEN. Yes, sir. That is correct, sir, and the term employees were key to reducing that backlog and, as you point out, 

reducing that long wait list. We have not achieved that 6-month 

goal in all categories, but we have in many. 

Chairman CORNYN. I know the President’s goal and your goal is 

to bring that down to no longer than 6 months. And I think if there 

had not been the extension of the term allowing you to maintain 

these employees, it might have proven the maximum. I have heard 

in some quarters that no good deed goes unpunished. But in this 

instance, a good deed has been rewarded by providing the additional means to keep these term employees on there, continue to 

work down the backlog. As Senator Kennedy and I have worked, 

as have all our colleagues, on immigration-related issues, we all 

know that your workload is going to do nothing but increase. 

Mr. SCHARFEN. Yes, sir. 

Chairman CORNYN. And we do not know exactly how or in what 

respects, but I think it is a virtual certainty that we are going to 

9

have to provide adequate resources through Citizenship and Immigration Services to process the large number of people that are 

going to need your services. 

Mr. SCHARFEN. Yes, sir, and I would be remiss not to point out 

that it took a lot of interest both within the executive branch and 

the legislative branch. Over 5 years we received appropriations, we 

received the authority to hire the term employees, and without that 

we would not have reduced the backlog. And so that is always appreciated. 

Chairman CORNYN. Secretary Sauerbrey, we have talked a little 

bit about really the challenges that the State Department and the 

Department of Homeland Security have in meeting the 70,000 cap 

that has been authorized. And, of course, what has been mentioned 

is the definition of ‘‘terrorist activity’’ that bars the relocation, the 

resettlement of those who have either been combatants, who have 

been members of terrorist organizations as defined, or those who 

have provided material support. 

But it strikes me, looking at the numbers, that this definition 

and these bars cannot alone account for inability to meet that 

70,000 cap. Could you expand just a little bit on what you believe 

the other factors are that are impeding resettlement up to that 

cap? 

Ms. SAUERBREY. Certainly, Senator. I appreciate the opportunity 

to do so. 

First of all, last year we were funded not for 70,000 but for 

54,000, and our plan was based on the expectation of bringing in 

54,000. We are actually bringing in, as I said, 41,200. Most of the 

difference really has been because of the implications of material 

support. However, there are other factors, and I think perhaps Senator Kennedy referenced the large number of refugees around the 

world. And so we sometimes are asked, well, why don’t you just go 

find some other refugees? And, indeed, we are looking for other 

caseloads that are not problematic. But we do make decisions 

based on vulnerability, and decisions are made well in advance of 

the time that a refugee actually arrives in the United States, the 

time that it takes from the identification of the caseload, working 

with the government, getting agreement that they will allow 

UNHCR do camp registration. 

For example, right now we have finally achieved agreement from 

Nepal to allow UNHCR to begin registering those Bhutanese refugees, which is hopefully a first step towards addressing this protracted situation. But my point being that it takes a long time to 

work through the process, getting them registered, going through 

the various security issues, DHS interviews, health processing, and 

so forth. 

So when material support hit us last year and affected—we had 

anticipated ninety-four—there are 9,400 refugees in the Tham Hin 

Camp. It was part of our resettlement program for this year. We 

had anticipated bringing the majority, if not all of those, to the 

United States. That population has largely disappeared. 

In addition, there are situations where countries, such as Cuba, 

decide to make it difficult for refugees that are processed and do 

not issue exit permits. So it is a combination of these sorts of facVerDate 0ct 09 2002 11:13 Jan 29, 2007 Jkt 032151 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32151.TXT SJUD4 PsN: CMORC
10

tors that interfere, but the two big ones are funding and material 

support. 

Chairman CORNYN. Is it through that there is an unallocated reserve? Let’s say over and above just the funding issue, which is a 

big issue, and we need to do better in Congress to meet those funding issues so that we can get closer to the cap. But is there an 

unallocated reserve kept in order to deal with unexpected emergencies, natural disasters and the like? 

Ms. SAUERBREY. Well, in this year’s plan, we have identified a 

50,000 number, and we have an unallocated reserve of the additional 20,000, and that was, frankly, in anticipation of material 

support waivers that would allow us to increase significantly, we 

hope, the numbers of Burmese refugees. But, yes, we can modify 

the program during the year to meet unexpected situations. 

Chairman CORNYN. And certainly I think Congress is capable of 

dealing with emergency situations that might result in an unexpected increase due to a natural disaster or the like, but obviously 

you have a challenging job. 

Let me ask you, Madam Secretary, the United States, of course, 

accepts more refugees than any other country. In fact, the United 

States accepts more than 60 percent of the individuals referred by 

the United Nations High Commissioner. And that is something we 

are all justly proud of. But what are the Department of State and 

the United Nations High Commissioner doing to encourage other 

countries to make refugee resettlement a high priority? 

Ms. SAUERBREY. I will be next week in Geneva trying to do exactly that, because the UNHCR Executive Committee will be meeting. We are currently funding a program in Latin America to try 

to build capacity on the part of three Latin American countries that 

have recently indicated willingness to accept refugees. And we are 

trying to help them to develop their ability to process and to have 

a resettlement program. 

We are constantly working with other countries to encourage 

them to join in this effort or increase the number of refugees that 

they are accepting. There really are only- -the only two countries 

that accept any large numbers besides the U.S.—and they are very 

small by contrast—are Australia and Canada. Most of the other 

countries take numbers in the hundreds, and so there is a lot of 

work to do to try to get other countries to step up to the plate. 

Chairman CORNYN. Mr. Scharfen, let me ask you, you talked a 

little bit about the Refugee Corps, the men and women who go out 

and help adjudicate these cases. And, of course, we know they are 

required to make difficult and complex decisions. For example, they 

have to determine whether refugee applicants have persecuted 

other individuals. 

What role did these individuals play in administering the material support waiver to refugees in the camp in Thailand? And can 

you share with us what you learned from that experience? 

Mr. SCHARFEN. Yes, sir. We did send our members—the USCIS 

members that did go to the Tham Hin Camp to process the Karen 

refugees were from our Refugee Corps. We sent five of the members there, and their experience was a good experience. They felt 

that they were able to apply the inapplicability provisions well in 

those circumstances, that the standards and criteria were clear to 

11

them; the process that was set up there with both the NGOs and 

the State Department worked well; and that they were trained well 

before they went. 

The USCIS provided training with the State Department and 

others here in Washington prior to going to the Tham Hin Camp. 

Once there, the Refugee Corps felt that the experience from start 

to finish was good. Approximately 80 percent of those interviewed 

qualified for refugee status. They were able to apply the inapplicability provisions to approximately 30 percent of that population, 

and overall they thought that the interagency process leading up 

to the trip to Tham Hin was good. It provided them clear guidance, 

and they were well prepared to exercise their responsibilities there 

in Tham Hin, and they are looking forward to going off to Thailand 

for this next set as well. 

Chairman CORNYN. Let me ask one last question, and then I will 

turn it over to Senator Kennedy. 

Secretary Sauerbrey, some have suggested that the State Department needs additional authority, but I wanted to know from you 

whether you and perhaps Secretary Rice—I know we talked about 

this some informally at our meeting that Senator Kennedy and I 

mentioned earlier, but whether you believe that the waiver authority given to the Secretary that has been used—effectively, it 

sounds—whether that provides sufficient flexibility to deal with the 

issue. 

Ms. SAUERBREY. As I indicated in my testimony, Senator, the 

waiver authority has certainly helped a great deal. It does not 

cover all individuals; for example, in Tham Hin, about 1,000 are on 

hold because they are either members of a group or identified as 

combatants. 

Chairman CORNYN. Okay. The waiver just deals with material 

support. 

Ms. SAUERBREY. The waiver only addresses material support. 

Chairman CORNYN. And not combatants or members. Are you 

suggesting that that waiver authority needs to be expanded? 

Ms. SAUERBREY. This is a pretty difficult and complex issue because it involves a number of Federal agencies that have different 

responsibilities. We have been working at an interagency level 

within the administration to try to find a solution and we will continue to do so. 

Chairman CORNYN. Thank you very much. 

Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. 

Madam Secretary, just to go over these figures quickly, as I understand the administration request—first of all, let me acknowledge that there are some former refugees here in the audience, as 

I understand, from Somalia, Liberia, Sierra Leone, Romania, 

maybe other countries. They are now staff at the Lutheran Social 

Services for the National Capital Area. The Lutheran Refugee Program is recognized as being just one of the really very top over the 

years. So I thank them for coming and thank them for their continuing commitment to the refugee community. And if they at the 

end of the day have some ideas or suggestions, we would certainly 

welcome having whatever comments that they would like to make. 

I am sure I speak for our Chairman and Senator Brownback. But 

12

we have staff here, and we would love to get them, and we will try 

to get to them personally. 

Now, Madam Secretary, just quickly on the figures, the administration requested 893 and you have got 783, and 893 was for 

70,000 and then you got 42,000 for the 783. So just looking at the 

numbers, it does not look quite the sort of fit in terms of the numbers, you know, if you are doing a proportionality. 

Is there a comment you would like to make? 

Ms. SAUERBREY. If I can comment on what we are looking at currently—

Senator KENNEDY. I was looking at this last year. You know, we 

had authorized 70,000. We got 42,000. And one of the comments 

that you made was that the reduction of the Congress funding it, 

and as I understand it, the administration has requested 893, 893 

million for 70,000, and you got 783, but you only got 42,000, and 

it looks like percentage-wise there is more of a drop there. I am 

just interested in what your comment—if you want to submit it 

later on for the record on it, if there is a way of understanding it 

a little better. 

Ms. SAUERBREY. Well, there are two parts to funding. We have 

the assistance and protection portion, which is the greater portion 

of our funds go for the kinds of things, Mr. Chairman, that you 

talked about—food, water, sanitation, health. The admissions program is the smaller piece of our funding, and it was the admission 

line that took the largest cut. 

Senator KENNEDY. Okay. If you would just—I would be interested just for the record, because that is one we want to keep an 

eye on. We want to try and be helpful to you. 

Mr. Scharfen, I was interested, how did you get from the Marines 

into this work? Quickly. 

[Laughter.] 

Senator KENNEDY. My time watcher over here, Senator 

Brownback—no, just kidding. But could you give us a minute or 

two on that. 

Mr. SCHARFEN. Yes, sir. 

Senator KENNEDY. I commend you for it. It is obviously a commitment to public service and the country. 

Mr. SCHARFEN. Thank you. Both my Mom and Dad were career 

public servants. I was stationed—my last tour I was detailed as an 

active-duty Marine Colonel to the Clinton administration National 

Security Council. I then stayed on through the transition and 

stayed on with President Bush’s administration, in both instances, 

as Deputy Legal Adviser to the National Security Council. From 

there I retired, and Mr. Hyde—we had been working on different 

pieces of legislation over the year in my capacity at the NSC, and 

he saw fit to offer me a position there. 

Senator KENNEDY. Well, good for you. 

Mr. SCHARFEN. Thank you, sir. 

Senator KENNEDY. Let me ask you about what DHS can do to 

correct the problem to allow bona fide refugees to come to the U.S. 

And what I am interested in is if you can provide us with a list 

of the groups that Homeland Security has determined are undesignated terrorist organizations and explain the administrative review 

process that led to those determinations. And does DHS consult 

13

closely with the intelligence community and other agencies to determine whether a group is an undesignated terrorist organization? 

If you want to provide that later on, or you can summarize it now. 

Mr. SCHARFEN. Yes, sir. It is an interagency process that does involve the intelligence agencies, the State Department, but I would 

feel more confident providing that to you in writing after this hearing. 

Senator KENNEDY. I think this is part of the nub. You know, we 

are talking about waivers and we are talking about legislation and 

talking about the kind of coordination, and I think you have got the 

drift from the Chairman and myself about, you know, the interest 

that we have. I think we have gotten some good answers today and 

helpful answers. But I think if we got some accountability in these 

areas—because this material support does not only apply to refugees, it also applies to the asylum applicants as well. And as I understand, there are 500 or so asylum applicants that this applies 

to. 

Mr. SCHARFEN. That is correct, sir. 

Senator KENNEDY. And these are people that may very well be 

in real considerable danger. 

Mr. SCHARFEN. Yes, sir. And those applications have been put on 

hold pending resolution of those issues, sir. 

Senator KENNEDY. So they are not required—they don’t go back. 

I think one of the points we want to get to is we do not—we have 

got the designation for next year. We are going to struggle and 

fight for the resources, and then we do not want to come back next 

year and find the same kinds of, you know, sort of challenges and 

problems that we have lost the opportunity to reach those numbers. I mean, that is in the back of our heads, at least mine. So 

we want to try and avoid it, and I think any suggestions and recommendations that you have that can help us on that, I would very 

much appreciate it. 

Mr. SCHARFEN. Yes, sir. 

Senator KENNEDY. Let me mention the issue on what call the P–

3s. These are the reunifications of the families, you know, the family reunification. I had that right here, the family reunifications. 

Here we go. 

At the present time, the administration has a list of 17 nationalities to be eligible for the P–3 designation. That is the ability to 

bring in their children and their families. This is a big aspect of 

our immigration overall policy, the family. And we have dealt with 

this, trying to get the nuclear family, when we had the abuses on 

the immigration issues. But certainly bringing in children and immediate members of the family is a priority. And yet it does not 

apply. I do not know why we have to have a P–3 category. Why 

isn’t it available to all the groups? Myself, I just do not understand 

that. Maybe there is a good reason for it. 

The UN High Commission and U.S. refugee agencies have urged 

the State Department to create a universal application of P–3. 

Now, this year, you have the Department taking Ivory Coast, Togo, 

and Liberia off the P–3 designation list. 

What is the story? 

Mr. SCHARFEN. I think that issue I might defer to Madam Secretary to answer, taking that country off the list, sir. 

14

Senator KENNEDY. All right. 

Ms. SAUERBREY. We feel very strongly about family reunification, 

and it is indeed a major goal in our program. We ran into a situation in Liberia where, because of great changes in Liberia, there 

was great hope and most of the effort of all of the refugee program 

is to enable people to go home. We think most people really want 

to go home. 

What we were encountering was because of the P–3 opportunity 

for resettlement for a small number, there were a lot of people that 

were waiting and not going home. So we were actually asked in 

that case by UNHCR, as well as the government, interested parts 

of the government—

Senator KENNEDY. Are you saying they had big, big families all 

of a sudden? Is that what you are—

Ms. SAUERBREY. No. What I am saying is that because of the P–

3—and, believe me, there is not a whole lot of understanding when 

we are doing refugee—when DHS CIS is there doing refugee resettlement adjudication, there is not a whole lot of understanding 

about who qualifies. So there were a lot of people who were simply 

sitting in the camp missing the opportunity to go home because 

they were thinking that this P–3 adjudication process was going to 

allow them to be resettled to the United States. 

So we set a time where we allowed the continuing of the filing 

of the forms that would make them eligible, and we will restart the 

P–3 resettlement process, I believe in January. But we wanted to 

create a window that would allow those that needed to be thinking 

about repatriating to Liberia to proceed to do so. 

Senator KENNEDY. I am just interested generally why we have 

that designation. We are talking about spouses, and we are talking 

about unmarried children under 21, I guess the older parents in 

some circumstances. I never could quite understand why we permit 

that if we are having the refugees from some countries and we do 

not do it for others, and why we—I just do not—I really have a difficult time understanding it. 

I would hope that maybe they would go back and take a look at 

it. The UN High Commissioner made the recommendations, the 

various voluntary agencies have made these recommendations, and 

I have never really heard at least a convincing argument to me 

why some countries should have that and other countries not. But 

if you could just take another look at that, I would very much appreciate it. 

I know my time is just about up. Could I ask just a moment 

about Darfur? If we have, you know, an overwhelming humanitarian kind of problem, it is a little different from what we have 

looked at and our jurisdiction generally in terms of refugees. But 

if there is anything—if the Chairman would just permit, if you 

could give us any kind of hope on this situation and give us some 

idea about any ways that we obviously can be helpful. 

Ms. SAUERBREY. This is a little bit out of my department, but let 

me just say I know that the State Department continues to work 

diligently to try to get acceptance for a UN force to come in. In the 

meantime, however, we have seen huge refugee flows into Chad as 

well as internally displaced persons in Darfur. We are committed—

15

my office along with others in the State Department have committed very large resources to protection and assistance. 

One of our great concerns is the attacks that are happening with 

high frequency now on humanitarian workers, and one point I 

would like to make is if there is something I have learned very 

quickly in this position, it is to have tremendous respect for the 

people on the ground who are providing under very dangerous circumstances for the well- being of refugees and internally displaced 

persons. 

We are not able at this point to even be thinking about a resettlement program because UNHCR simply—it is a very dangerous 

environment, and UNHCR does not have the capacity, nor do we, 

to go in and try to do processing. But it is certainly going to be an 

issue for the future. 

Senator KENNEDY. I thank the Chair. 

Chairman CORNYN. Thank you, Senator Kennedy. We have been 

joined by Senator Brownback, who is former Chairman of this Subcommittee, and who I know has a lot of interest and expertise in 

this subject, and recently traveled to refugee camps in Africa, I understand. Senator Brownback, we will turn the floor over to you. 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thanks, Mr. Chairman. I do not know 

about the expertise, but I do have a lot of interest in it. And I appreciate you holding this hearing, and I appreciate Senator Kennedy’s long-term interest in this topic for many, many years that 

he has worked on it. I appreciate that, and the people on his staff. 

Esther has, I know, worked on this a lot as well, and I appreciate 

all that effort and focus and intensity. 

Thanks very much for being here. I want to start off thanking 

you and applauding you for twice exercising discretionary authority 

on the Karen refugee population, bringing some of those residing 

in that camp. I visited that refugee camp, I guess it was in 2001, 

and they certainly need every bit of help that we can give. I hope 

you can continue to do that. This is a group that is stateless, that 

has predators all around it, traffickers for younger girls in particular, and they really need our help, and they do not have another option of a place to go. So to the degree you can continue to 

help them out, I would appreciate that. 

I also want to thank you for admitting the first refugees under 

the North Korean Human Rights Act, bringing some refugees into 

the country here. 

Having said that, I think the first group was like nine from 

North Korea, and the numbers I have seen or heard about—and I 

do not know if anybody can verify any of these at all—is that you 

are looking at somewhere between 200,000 and 300,000 North Korean refugees in northern China—stateless, a number of the 

women—the reports I am getting, almost all of the women are trafficked, sold into some form of sexual bondage in China. There is 

a generation of children now coming up in that situation where 

they are having children, and these children are also stateless and 

subject to the vagaries and the difficulties of being in that situaVerDate 0ct 09 2002 11:13 Jan 29, 2007 Jkt 032151 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\32151.TXT SJUD4 PsN: CMORC
16

tion. I am hopeful we can admit a lot more North Korean refugees 

into the United States. 

I do now know if you have any thoughts that you can give about 

either of those population pools. 

Ms. SAUERBREY. Thank you, Senator. I just came back from visiting the Tham Hin Camp in Thailand—tremendously overcrowded, 

huge, huge problems there. I visited one of the other more remote 

camps as well. It certainly brings a driving compassion to wanting 

to help these people through resettlement, which is really the only 

option. They cannot go back to Burma. They are stateless, as you 

said. And Thailand, while it has been a generous host for almost 

20 years for this population, is not willing to allow them to assimilate. 

So the only option is resettlement, and we are eagerly looking 

forward to expanding the resettlement program to other camps in 

Thailand, as well as to hopefully being able to close out the Tham 

Hin population in the next year to the degree that we can resolve 

some of the problems that we have encountered in trying to do so. 

As far as the North Koreans, as you know this presents very 

unique challenges because the huge number of them are in the 

PRC. The PRC does not recognize them as refugees. They refer to 

them as ‘‘migrants,’’ ‘‘economic migrants.’’ 

I have had meetings—I was in Beijing about 2 months ago and 

had meetings with the Chinese at that time to urge them, No. 1, 

not to send North Koreans back to North Korea where they may 

be persecuted and tortured; second, to try to get the PRC to work 

more cooperatively with us for those that are in the PRC and indicating an interest in resettlement in the U.S. 

The other countries in the region that the North Koreans reach, 

as you know, this is a very sensitive issue. There is a great concern 

about creating a huge pull factor. So we do not talk publicly—

Senator BROWNBACK. I think Kim Jong Il has already created a 

great pull factor—or a push factor, I guess, on his part. 

Ms. SAUERBREY. There is no question, but I would be very happy 

to talk in a more classified setting about the efforts that we are 

making with other countries in the region. But we do not talk 

about that publicly because of the sensitivity and the issues of trying to get cooperation. But we will continue to work to try to bring 

additional North Koreans here. It is a high priority for the President as well as for my Bureau in the State Department. 

Senator BROWNBACK. Looking at that particularly, the PRC has 

been very difficult to deal with on this. I have met with them, the 

administration officials have meet with them, about the 

refoulement that they are doing of North Korean refugees. That 

has created then this trafficking situation, because women come 

across the line, they are actually—and I am even told this, that 

some of the houses along the border, the owners have dogs to bark 

for when people come by to see if it is a female North Korean that 

they can capture and sell. They are captured like wild animals and 

sold for value. But then the women, once they are caught, they are 

told, ‘‘You will do as I say, or I am turning you in to the Chinese 

authority. They are sending you back to North Korea, and you 

know what that means. That means you are going into the gulag, 

and you know what happens there.’’ 

17

And then they comply, and then the Chinese man that buys 

them tells them the same story: ‘‘You are going to do what I say, 

and if you do not, I am turning you into the Chinese authority. 

They are shipping you back to North Korea. You are going to the 

gulag, and you know what happens there.’’ 

And so this very situation of refoulement where China does not 

comply with its own international obligations creates this entire 

trafficking pool of hundreds of thousands. Hundreds of thousands 

that are in. And I think it is past time for us talking to the Chinese. I think it is time for us to start talking about economic sanctions on them for violating their own agreements with the UNHCR, 

that we should do a type of approach where, if you are going to 

continue to refoule, then we are going to put forward systems 

where we can tax you and hit you economically on this, if you are 

going to continue to violate this in such a way that these people 

are being persecuted and killed. 

I hope the administration can join us on this. I know the President is deeply concerned about it. 

I would note one final thing, because my time is way over. I appreciate the 70,000 number, but we just have been averaging 

bringing in 41,000 refugee admission the past 4 years. We are not 

coming close to those numbers. And from what I have seen and the 

people I have talked to, there is no shortage of refugees around the 

world that we would not be hitting these numbers. And I would 

really urge you to redouble your efforts. I know it is difficult. I 

know we have a lot of security concerns to watch for. But there are 

huge populations that are absolutely persecuted and have no other 

option. And it gives them hope, and it makes us a better place. 

These people are resettled in the United States. I have hosted the 

North Korean refugees. They tell incredible stories, but it is an incredible story of human courage. And their persecution is just a direct hit into our system of saying, well, we ought to stand up for 

people that are in troubling circumstances, and the more people 

they can talk to, the more people they motivate. It is a blessing to 

us, and I really hope we can do more to do that and get more individuals in the United States, if for no other reason than for our 

own benefit here. 

Thanks for your work. Godspeed in it. I just think we need to do 

more, and particularly in some of these targeted populations that 

are in a horrific circumstance. 

Ms. SAUERBREY. Thank you, Senator. I appreciate everything 

that you have said and share your passion about it and just hope 

that the Senate mark, which is the President’s request, will be 

what we are working with next year. As I indicated before you 

came in, Senator, we were only funded for 54,000, despite the fact 

that the President had asked for 70,000. And this year the Senate 

has a mark that will allow us to reach the President’s goal. In addition to the fact that we now have the inapplicability provision for 

the Karen, this gives us great optimism that with these two things 

in place, we can indeed increase our numbers significantly. 

Senator BROWNBACK. I hope you hit the number, because as an 

appropriator, when I see money appropriated and then if it is appropriated for 70,000 or even 54,000 and you only hit 41,000, I am 

thinking, well, I have got some money I can put somewhere else 

18

now. So you need to hit the number and use it, or it is going to 

be shifted somewhere, because people are always, you know, tracking for where can we move money around in this budget. That is 

the nature of what happens here. 

Ms. SAUERBREY. Had we not encountered the problem of material 

support this year, I think we would have reached our number of 

54,000 that we were funded for. So now we hope that next year, 

because we do have the waivers for the camps in Thailand, that 

this will expand the pool that we have already got in the pipeline. 

So we hope that we can count on the funding to be able to reach 

the numbers. 

Senator BROWNBACK. All right. Thanks, Chairman. 

Chairman CORNYN. Thank you, Senator Brownback. Let me extend my thanks to both of you again for being here today and for 

your service to the Nation and to people truly in need. Thank you 

very much. 

We will now move to the next panel, please. 

Father Gavin and Mr. Horowitz, thank you for being here today 

and for contributing to our knowledge on this important topic. 

Let me first introduce Mr. Horowitz, who will be the first member of the second panel. He is a Senior Fellow and Director at the 

Hudson Institute for Civil Justice Reform and Project for International Religious Liberty. Mr. Horowitz served as General Counsel for the Office of Management and Budget from 1981 to 1985, 

and as an Associate Professor of Law at the University of Mississippi from 1965 to 1967. He served as Chairman of President 

Reagan’s Domestic Policy Council on Federalism and was co-Chairman of the Cabinet’s Council Working Group on Legal Tort Policy. 

We also have with us today Father Kenneth Gavin. Father Gavin 

serves as the National Director of the Jesuit Refugee Service/USA, 

in addition to serving as Vice Chair of the Refugee Council USA. 

Father Gavin has also served on the boards of numerous Catholic 

educational and service organizations. He has a Ph.D. in speech pathology from Northwestern University, a master’s of divinity from 

Weston School of Theology, a master’s of art in linguistics from the 

State University of New York, and last, but not least, an A.B. from 

Fordham University. 

Gentlemen, thank you for being with us today. Mr. Horowitz, let 

me turn to you first for any opening statement that you would care 

to give, and let me remind you to punch that little button at the 

bottom of your microphone, and if the light comes on, that means 

your microphone is working. 

STATEMENT OF MICHAEL J. HOROWITZ, DIRECTOR, PROJECT 

FOR CIVIL JUSTICE REFORM AND PROJECT FOR INTERNATIONAL RELIGIOUS LIBERTY, HUDSON INSTITUTE, WASHINGTON, D.C. 

Mr. HOROWITZ. Thank you, Senator Cornyn. I am sorry Senator 

Kennedy is not here because I wanted to start off by saying I am 

a Marine also, except that I only made it to Lance Corporal E–3. 

I never got to Colonel, as the prior witness. And I think that is relevant because there is a lot of mock macho that does go on here 

on some of these immigration issues that I hope to address today 

that I hope that this Committee and many Senators will correct. 

19

I have been a frequent witness before Congress. I have never 

been more pleased to testify than I am today because of the symbolic and the real importance of the issue before this Committee. 

We have heard Secretary Sauerbrey say that she has not met her 

target largely because of the construction of the so-called material 

assistance issue and problem. Let me describe what it is. 

First, there is the determination made, to take a particular example, that members of the Hmong and Montagnard communities, 

no matter that they proved themselves eligible for refugee status 

on every ground, no matter that they are vetted individually on 

grounds of whether they will support terrorism—they have been involved in terrorism, have committed crimes. They pass ever test 

with flying colors, and they are deemed terrorists per se solely because their community fought on the side of the United States in 

the Vietnam War. 

Now, I do not believe that that construction is remotely called for 

under the statutes that Congress passed. But the fact of the matter 

is that there is that waiver authority, and we have seen it exercised in the case of the Karens, a very narrow band of them. This 

has gone on for 2 years, Mr. Chairman, and it is inexcusable that 

members who fought and died on the side of United States troops 

are deemed terrorists and excluded from the United States simply 

because they took our side. That surely is no way to enhance the 

national security of the United States, and Secretary Sauerbrey indicated and we know that there is clear authority, at least in some 

cases, to waive that for people who have given material support. 

I was troubled to hear Secretary Sauerbrey say that it is complex 

and difficult to get administration support for what I would regard 

as a technical amendment because, once again, the position that 

Ms. Sauerbrey says is complex is one that says that if you gave aid 

to the troops fighting on the side of the United States in Vietnam, 

why, then we can waive you in and not exclude you, no matter 

what else, no matter what other qualities you bring; but if you lifted a rifle and engaged in combat risking your life on the size of 

United States troops, why, we need a statutory amendment and it 

is a very complicated matter. 

I do not think it is a complicated matter, Senator, and I hope 

that the Senators, and particular conservative Senators, will hold 

the administration’s feet to the fire on that issue. 

Now we get to the second issue, the so-called duress issue. We 

have case after case of people who paid ransoms because terrorists 

came in their community, stuck guns to the heads of their children, 

and threatened to rape them, and they paid modest ransoms. They 

are regarded as terrorists. And once again, they meet the test of 

refugees in every single particular. They pass every known test of 

whether or not they pose any security problems to the United 

States, whether they have associated with terrorists, whether they 

have committed crimes in their own countries. There is a whole 

host of tests, and there ought to be tests, particularly after 9/11, 

on an individual case. But what we have here is a per se determination that says the facts be damned. We do not care how qualified you are as a refugee. If you paid a ransom to stop your wife 

from getting shot, you are a terrorist. 

20

Now, I do not believe that the Congress of the United States 

passed legislation that posed a test that every single Member of 

Congress would have failed. I think the Supreme Court has made 

clear in a number of cases, to cite the Bailey decision, where given 

the circumstances where reasonable men must concede that they, 

too, would not have been able to act otherwise, a duress exception 

defense is implicit in the law. And yet the administration has refused to allow this, so that victims of terrorism are regarded as terrorists. 

Or to take the case of groups, as a letter from the Jewish community said, under the administration’s definition people who fought 

in Warsaw against the Nazis would be regarded as terrorists, inadmissible to the United States whatever other virtues they had. As 

I say, I do not think we need to change the law, but even if one 

reads the law as Secretary Sauerbrey does, why have we waited for 

2 years to give that same kind of exception to Montagnards, to Cubans, and to others that we have reluctantly given in a narrow 

band to the Karen? 

But the matter is even worse than that, Mr. Chairman, because 

when I discovered that this was going on, to my utter astonishment, I could not believe, because I do support and love the President and know where he comes from on these issues, that this was 

a position taken by the administration. I sat down with the refugee 

groups. There is, as you know, legislation from conservatives, from 

Congressman Pitts, there is Senate legislation to deal with this 

anomaly, to deal with this issue. But we all know what getting legislation passed at the end of session is like, and so I look to see 

if there weren’t administrative solutions that could resolve, for the 

most part, all of these problems. And it turned out there were. 

And I work with the immigrant groups, and then I called up colleagues, former colleagues, friends of mine in the administration, 

and I said, ‘‘How do you justify not holding hearings for 2 years on 

Montagnards to give them the waiver?’’ And they said, ‘‘We really 

can’t.’’ So what we did was put in an administrative determination 

that there would be a timely procedure for holding these hearings 

and determinations for waivers of groups that are not terrorists, 

that are freedom fighters, that would never be listed as terrorists 

by the Government in any other context. 

Then we got to the duress problem. I said, ‘‘How can you deem 

a person to be a terrorist who simply paid a ransom to avoid the 

death of a spouse?’’ Or we have the case of women who were repeatedly raped and who washed the clothes of the terrorists who 

raped them. They are denied refugee status. 

We have the case—I said, ‘‘How can you possibly do it?’’ They 

said, ‘‘Well, the first problem is there is no definition of ‘duress.’ It 

is too loose.’’ So I sat down with the refugee groups, and you will 

see it, Mr. Chairman, in one of the attachments here entitled ‘‘Administrative Proposal.’’ And the refugee groups agreed to a definition that said that the applicant must show that he or she was 

faced with what a reasonable person would deem a threat of death 

or serious bodily harm. 

And they went further. They said that the applicant, even if they 

had the threat of bodily harm, the applicant must show that he or 

she acted necessarily and reasonably to avoid the threat. 

21

And they went further and said that there must be a finding that 

the person—that the fact finder must affirmatively determine that 

the refugee will not threaten the security of the United States. I 

said, ‘‘Is that a tight enough definition?’’ ‘‘Well,’’ they said, ‘‘maybe 

it is.’’ 

But we have got another problem. ‘‘We don’t trust,’’ they told me 

confidentially, ‘‘some of these fact finders. They might just ignore 

the definition and give duress exceptions for these people. 

We went back to the drawing board. I said—and the refugee, the 

immigration groups have proposed a stroke-of- the-pen administrative solution that says that if a finding of duress is made, it must 

be, before it takes effect, reviewed on a timely basis by the home 

office at DHS. 

Every single security concern raised by the administration on the 

duress issue, which I think is built into the statute, I believe we 

have satisfied, and still there are some within the administration 

dragging their feet. And I will tell you, Senator, I have talked confidentially to members of the administration who are as upset as 

I am by the foot-dragging that is taking place. And one of the reasons I am so pleased to be at the hearing today is because I think 

United States Senators have the capacity to raise this issue at the 

level of the President. And I have no doubt whatever as to the decision the President would make on this administrative procedure or 

necessary changes in order to permit Montagnards and Hmong to 

come to the United States or to allow victims of terrorism not to 

be barred because they were victims of terrorism when they met 

every other test for a refugee. 

In the case of the Hmong, I found that—

Chairman CORNYN. Mr. Horowitz, let me ask you to wind down 

your opening statement. We can get to some questions and answers. 

Mr. HOROWITZ. You bet. The only other—there are many other 

things I think that can be said here, but I would simply say that, 

as a conservative, this approach caricatures the kind of tough approaches that you have taken on many other issues and related 

issues. And I think it is incumbent on those of us who really want 

a robust policy dealing with the aftermath of 9/11 to fight the hardest to take out policies of this kind, which are facts be damned, 

blanket use of—misuse of statute in order to deny refugee status 

to otherwise fully qualified people. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Horowitz appears as a submission for the record.] 

Chairman CORNYN. Thank you very much, Mr. Horowitz. Father 

Gavin, we would be glad to hear from you. 

STATEMENT OF REVEREND KENNETH GAVIN, S.J., VICE 

CHAIR, REFUGEE COUNCIL USA, AND NATIONAL DIRECTOR, 

JESUIT REFUGEE SERVICE/USA, WASHINGTON, D.C. 

Rev. GAVIN. Thank you, Mr. Chairman, for this opportunity to 

testify as Vice Chair of Refugee Council USA and as National Director of Jesuit Refugee Service/USA. 

Refugee Council USA, as you know, is a coalition of 23 nongovernmental organizations dedicated to refugee protection. I have 

22

with me a copy of our annual report for this year, and I ask at this 

time that it be entered into the record, if possible. 

Chairman CORNYN. Certainly. Without objection. 

Rev. GAVIN. Thank you. 

I am speaking today on behalf of my own organization as well 

as the agencies and Refugee Council USA who help resettle the 

majority of refugees that the United States admits each year. In 

this testimony, I will make logistical points about how he U.S. refugee program can be made more effective, but before I move on to 

statistics, I simply would like to reflect on the reality of the people 

affected by the program itself. 

Fear, hopelessness, and death are the options that most refugees 

face. I saw it firsthand in Malaysia the year before last, where I 

met with Chin refugees who had fled from severe religious persecution at the hands of the Burmese Government. After fleeing to Malaysia, these refugees found themselves in an equally precarious 

situation. Many of the 15,000 Chin in Malaysia live in sordid, plywood hovels in the shadow of the splendid rising city of Putrajaya, 

a city that they have helped to build with their own blood and 

sweat. 

As refugees, they now suffer abuse and threats at the hands of 

local police and unscrupulous employers. These refugees told me 

that their only hope for new lives lies in resettlement and a fresh 

start in a new country. 

Those of us who work with refugees know that each unfilled admission slot represents one person who needlessly continues to suffer because of our failures to offer a new home and a new life 

through resettlement. In this fiscal year, only 42,000 refugees are 

likely to be admitted to the United States, leaving more than 

28,000 admission slots unfilled. Refugee Council USA has consistently called for a target of 90,000 admissions in the refugee program. 

There are many contributing factors to this devastating shortfall 

in the admissions numbers. The most ominous obstacle, as we have 

heard, for the refugee program is the material support inadmissibility bar, which has prevented thousands of deserving refugees 

from seeking protection in the United States. 

As my written testimony reflects, the Refugee Council USA community calls for a legislative solution to refine the statute of the 

material support bar. Too many refugees have been unjustly labeled as willful collaborators with terrorists rather than being justly recognized as the victims of terrorism. Too many refugees have 

had their cases put on hold because they support groups who have 

incorrectly been categorized as terrorist organizations, and too little 

has been done to reach out to these twice- persecuted people as 

prolonged interagency negotiations over waivers prevent the administration from taking swift and effective action for the many 

populations affected by material support. 

Rather than depend on this cumbersome waiver process, we call 

for an amendment to the material support statute itself. With this 

legislative change, the law will promote safety for the United 

States and safety for bona fide refugees who come here seeking 

safe haven. 

23

Additional obstacles to a more successful U.S. refugee program 

can also be removed through procedural and policy reforms. The 

State Department can treat the annual Presidential determination 

as a target rather than a ceiling, and it can make an effort to utilize the admissions numbers by lowering the number of rarely 

filled unallocated reserve positions. 

The State Department should also maintain at least a 3- month 

pipeline of refugees moving toward admission to allow for unseen 

delays in refugee movements during the year. Steps can be taken 

to protect especially vulnerable refugee children and to include 

more Priority 2 and Priority 3 groupings. And all processing may 

be expedited, thus allowing the refugee program to admit more vulnerable refugees every year. 

In recent years, the President’s budget request has failed to include sufficient funds to admit the number of refugees set by the 

Presidential determination, and Congress has appropriated even 

less for refugee accounts. We recommend that the MRA account 

and the Office of Refugee Resettlement be funded at $980 million 

and $798 million, respectively, so that the refugee accounts do not 

continue to depend upon supplemental appropriations. 

All these changes should be made to increase the admissions 

numbers, which represent new lives for refugees by the thousands. 

The Chin in Malaysia deserve our help. They dared to hope for a 

better future, and it is in our power to offer them new life and new 

hope through an improved U.S. refugee program. 

Thank you very much for your attention. 

[The prepared statement of Reverend Gavin appears as a submission for the record.] 

Chairman CORNYN. Thank you very much, Father Gavin, for 

your opening statement. 

Everyone who has spoken so far agrees with the goals of our refugee policy, and we have identified some problems that Congress 

perhaps needs to revisit in order to achieve those goals. But let me 

just drill down a little bit more, first starting with you, Mr. Horowitz, about some of your concerns. 

If the Government has authority to waive material support, 

wouldn’t that also include authority to cover duress, for example, 

the example you mentioned? 

Mr. HOROWITZ. I do not think anyone denies that the Government could create a duress defense on material support. 

Chairman CORNYN. My question is: Couldn’t it be included in 

terms of a more—I will not call it a more expansive interpretation, 

but couldn’t the—it seems to me that if you provide material support, you could do it under duress or you could do it voluntarily, 

but the term ‘‘material support’’ is broad enough to allow the Secretary to use the waiver. Is that not correct? 

Mr. HOROWITZ. Absolutely. I think when Congress passed it—it 

is inconceivable to me that when Congress passed the material 

support provision, I cannot imagine that anybody in Congress 

thought that material support involved paying a ransom when 

there was a gun to the head of your child or you had been raped 

and imprisoned yourself and were forced to wash someone’s clothes. 

That is simply done administratively within the administration. It 

is quite controversial within the administration. And I believe that 

24

if the Senate puts the wood to the administration and gets the 

issue directly to the President—and you have seen these letters. 

They come from Gary Bauer and David Saperstein, from the National Council of Churches and the Southern Baptist Convention. 

I have never seen such a grouping on an issue of this kind. I believe that the handful of people standing in the road saying no can 

be overridden. There are many in the administration hoping that 

you, Mr. Chairman, and your fellow Members of the Senate will 

simply insist that a duress defense can be used. 

And I say again the defense of duress does not excuse you from 

having to prove that you are a legitimate refugee or that you are 

not a threat to the United States to engage in terrorist activities 

on any other ground. 

Chairman CORNYN. Father Gavin, you mentioned a proposed 

change in the definitions that were first applied, I guess, in the 

REAL ID Act of what constitutes a terrorist organization or terrorist activity, particularly when we are at war and we have, I 

think we would all agree, valid national security interests in making sure we protect America at the same time we try to implement 

a reasonable and rational refugee policy. 

Could you explain to me why you do not believe that your concerns could be addressed through perhaps an expanded waiver authority that maybe to Mr. Horowitz’s point was more rationally applied in a way that would achieve the goals that we all share?E 

Rev. GAVIN. Right. I think that it is important for us to say that 

the Refugee Council is not supporting support of terrorists in our 

country. 

Chairman CORNYN. I did not understand you to say otherwise. 

Rev. GAVIN. What we really wish to do is to create an interpretation and a legislation of material support that will allow terrorists 

to not enter our country, and yet allow all refugees who have a reasonable and valid right to the refugee resettlement program to 

enter. Our concern really with the current use of waivers for the 

material support issue is varied. 

To begin with, as we have already heard, the complexity of the 

interagency negotiations is something that obviously takes a good 

deal of time and sometimes more than even a year or two to create. 

And although we applaud the use of waivers, we realize that these 

waivers are not going to be able to be used easily for large numbers 

of refugee populations in the coming years. 

Second, there are going to be individual cases that the material 

support issue would apply to and smaller groups that will be very 

difficult to be able to extend the waiver to, just because of the complexity of time. 

Of course, then there are the issues of 20 percent of the Karen, 

1,000 Karen in Tham Hin are not able at this point to pass the material support bar precisely because they served as combatants. 

There are 565 asylum cases here in the U.S. that are on hold 

precisely because of material support issues. The duress issue Mr. 

Horowitz has spoken to I think is clear. 

For all those reasons, in addition to the complexity issue, we feel 

that simply fiddling with the waiver itself is not adequate, and that 

we have to move towards a legislative solution. 

25

Chairman CORNYN. So far we have heard, just to summarize, 

that there is an issue of unallocated reserve that I know you addressed, Father Gavin, in your written testimony that the lack of 

funding as well as the challenges of applying the law that Congress 

passed barring those who provide material support to terrorist organizations. Let me ask you, Mr. Horowitz, are we doing enough 

to use our immigration laws and policies as instruments and tools 

to advance our foreign policy and national security goals? I am 

thinking in particular of the small number of North Korean refugees that, to use your words, ‘‘their presence has vividly informed 

millions of Americans about the nature of the Kim Jong Il regime.’’ 

Mr. HOROWITZ. Senator, I am here after taking the Red Eye back 

from meeting with the bravest people I have ever been in the same 

room with, in Los Angeles yesterday with leaders of the KoreanAmerican community and leaders of the Underground Railroad 

movement. They have lots of ideas about what can be done and 

what to do. And I think there are many things that can be done. 

I will just raise one here. 

I think the UNHCR has gotten off a lot more easily than it ought 

to, at least in the case of North Korea. The North Korea Human 

Rights Act points to the fact that the UNHCR has the right to take 

China to binding international arbitration for its unlawful deportation of refugees. The UNHCR has not done so for fear of alienating 

China. 

I believe that we should be placing much greater pressure on the 

UNHCR to get at China, to take them to international arbitration, 

in order to increase the potential flow of North Korean refugees. 

One of the great keys is the UNHCR, and I think we ought to be 

taking tough tests with the new, with the incoming candidates for 

Secretary General of the United Nations to see that the UN takes 

a tougher position vis-a-vis China than it does. The North Korea 

Human Rights Acts calls the failure to take China to arbitration 

by the UNHCR an ‘‘abdication of its core responsibility.’’ 

A second area is an amendment that this Committee adopted, 

Mr. Chairman, the S visa exception, which says that if you can 

find—if people are prepared to defect with knowledge of weapons 

of mass destruction or terrorism from countries like North Korea 

and Iran, they and their families should get green cards. The administration has opposed such a provision, even though it was 

unanimously adopted by this Committee. 

What Senator Brownback said about national interest here—and 

I would echo it—if we can get 1,000 North Korean refugees in, that 

is it, we educate the people of the United States about the nature 

of the regime and encourage them to take steps like the blacks did 

in bringing down the apartheid regime or like the Jewish community did under the leadership of Senator Jackson, they are precious 

assets for that reason. And while I think some in the administration have done well, I think we need to do a lot more in terms of 

the American national interest. 

Chairman CORNYN. You mentioned Iran, and the treatment of religious minorities there has, by all accounts, worsened considerably 

under President Ahmadinejad, who has expressed his wish, of 

course, to wipe Israel off the map and who has repeatedly denied 

the Holocaust. 

26

Do you anticipate an increase in the departure of religious minorities from Iran to participate in the U.S. refugee program? And 

if so, can you talk a little bit about what you think might be some 

of the ramifications of such a departure on U.S. foreign policy and 

national security interests? 

Rev. GAVIN. Well, I think every time that safe harbor is created, 

every time we give out what, ounce for ounce, is the most precious 

resource in the world, a United States green card, to sufferers of 

persecution, we send out messages of hope. We tell those regimes 

that you cannot lock up your own people, that there are outlets and 

escapes. We bring to the world voices that tell the rest of the world 

about what is happened, and we thereby strengthen American national security interests. 

That was exactly the notion behind Jackson-Vanik, which people 

said could not be done, you could not do anything to the Soviet 

Union. That refugee policy was the policy that placed the first big 

cracks in the walls of the Soviet Union. Refugee policy does it time 

after time after time, and I hope that we are more welcoming than, 

in my judgment, we have been to many religious refugees. And I 

hope we send out the signal that, yes, we will be a haven for victims of religious persecution from Iran. 

Chairman CORNYN. Well, to both of you, I want to say thank you 

on behalf of the Subcommittee and to thank all of the witnesses for 

being here today and testifying at today’s hearing. 

We are going to leave the record open until 5 p.m. on Wednesday, October the 4th, for members who perhaps were not able to 

be here today to submit additional documents into the record and 

perhaps even to ask questions in writing of any of the panelists. 

So, with that and our thanks, this hearing is adjourned. 

[Whereupon, at 4:33 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

27


32151.001
28


32151.002
29


32151.003
30


32151.004
31


32151.005
32


32151.006
33


32151.007
34


32151.008
35


32151.009
36


32151.010
37


32151.011
38


32151.012
39


32151.013
40


32151.014
41


32151.015
42


32151.016
43


32151.017
44


32151.018
45


32151.019
46


32151.020
47


32151.021
48


32151.022
49


32151.023
50


32151.024
51


32151.025
52


32151.026
53


32151.027
54


32151.028
55


32151.029
56


32151.030
57


32151.031
58


32151.032
59


32151.033
60


32151.034
61


32151.035
62


32151.036
63


32151.037
64


32151.038
65


32151.039
66


32151.040
67


32151.041
68


32151.042
69


32151.043
70


32151.044
71


32151.045
72


32151.046
73


32151.047
74


32151.048
75


32151.049
76


32151.050
77


32151.051
78


32151.052
79


32151.053
80


32151.054
81


32151.055
82


32151.056
83


32151.057
84


32151.058
85


32151.059
86


32151.060
87


32151.061
88


32151.062
89


32151.063
90


32151.064
91


32151.065
92


32151.066
93


32151.067
94


32151.068
95


32151.069
96


32151.070
97


32151.071
98


32151.072
99


32151.084
100


32151.085
101


32151.086
102


32151.087
103


32151.088
104


32151.089
105


32151.090
106


32151.091
107


32151.092
108

Æ


32151.093