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DEPARTMENT OF HOMELAND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 26, 2011 

Serial No. 112–111 

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 

(III) 

C O N T E N T S 

OCTOBER 26, 2011 

Page 

OPENING STATEMENTS 

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

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2 

WITNESSES 

The Honorable Janet Napolitano, Secretary, Department of Homeland Security 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 7 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Judy Chu, a Representative in Congress 

from the State of California, and Member, Committee on the Judiciary ........ 53 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 67 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from the Honorable Janet Napolitano, 

Secretary, Department of Homeland Security ................................................... 97 

(1) 

DEPARTMENT OF HOMELAND SECURITY 

WEDNESDAY, OCTOBER 26, 2011 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to call, at 10:07 a.m., in room 

2141, Rayburn Office Building, the Honorable Lamar Smith (Chairman of the Committee) presiding. 

Present: Representatives Smith, Conyers, Nadler, Sensenbrenner, Scott, Coble, Lofgren, Gohmert, Quigley, Poe, Chu, 

Chaffetz, Griffin, Jackson Lee, Gowdy, Johnson, Adams, Marino, 

Pierluisi, Quayle, Gallegly, Deutch, Issa, Sa ́nchez, King, and 

Forbes. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare recesses of the Committee at any time. 

This morning, we welcome Secretary Janet Napolitano to the 

Committee for an oversight hearing on the Department of Homeland Security. The Department of Homeland Security was created 

to protect our country from terrorist attacks, enforce Federal immigration laws and provide disaster response and assistance. 

DHS also performs important law enforcement functions related 

to intellectual property and child pornography. 

As we begin today’s hearing, I’d like to pose two questions. First, 

how effectively has DHS secured our borders? The nonpartisan 

Government Accounting Office has found that only 44 percent of 

the Southwest border is under the operational control of the Border 

Patrol. Nearly 450,000 illegal immigrants enter the U.S. each year. 

Meanwhile, Mexican drug cartels are out of control and the violence threatens to spill over into the U.S. 

The Administration needs to do more to secure the borders and 

protect the American people. Some have claimed what are supposedly the largest number of removals in history. However, even 

President Obama has said the statistics put out by DHS are, quote, 

‘‘A little deceptive.’’ And a study by the Washington Post found that 

the Administration has inflated its removal numbers. 

My second question is how effectively has DHS protected jobs for 

American workers. With the unemployment rate over 9 percent, 

jobs are scarce, and millions of American families have been hurt. 

According to the Pew Hispanic Center, 7 million people are working in the U.S. illegally. These jobs should go to legal workers, and 

securing these jobs for American workers and legal immigrants 

should be a priority of the Federal Government. 

2 

Each time DHS arrests, detains or deports an illegal worker, it 

creates a job opportunity for an American worker. Worksite enforcement actions open up jobs for unemployed American workers. 

Unfortunately, worksite enforcement has plummeted under this 

Administration. Administrative arrests fell by 77 percent from 

2008 to 2010. Criminal arrests fell by 60 percent, criminal indictments fell by 57 percent and criminal convictions fell by 66 percent. 

With millions of Americans unemployed, it is hard to imagine a 

worse time to cut worksite enforcement efforts by more than half. 

It is true that DHS has increased the number of audits of companies’ employment eligibility verification forms. 

However, these audits are of questionable benefit. The GAO has 

found that, quote, ‘‘ICE officials told us that because fine amounts 

are so low, the fines did not provide a meaningful deterrent. The 

amount of fines may be, in the opinion of some ICE officials, so low 

that they believe that employers view the fines as a cost of doing 

business, making the fines an ineffective deterrent,’’ end quote. 

And what happens to illegal workers when ICE declines to arrest 

them? They go down the street and knock on the door of the next 

employer and take jobs away from American workers. 

DHS has also signaled that it may grant administrative amnesty 

to potentially hundreds of thousands of illegal immigrants currently in removal proceedings and to many others who have yet to 

be placed in proceedings. But we know that when this Administration issues deferred action to illegal immigrants, it routinely grants 

90 percent of them work authorization. 

How can DHS justify granting work authorization to illegal immigrants when so many American citizens don’t have jobs? Twentythree million Americans who are unemployed or can’t find full-time 

work must wonder why this Administration puts illegal immigrants ahead of them. 

Citizens and legal immigrants should not be forced to compete 

with illegal workers for scarce jobs. The Administration should put 

the interests of American workers first. 

That concludes my opening statement, and the gentleman from 

Michigan, the Ranking Member of the full Committee, Mr. Conyers, is recognized for his opening statement. 

Mr. CONYERS. Thank you, Chairman Smith, and Members of the 

Committee. I join with you in welcoming the Secretary of the Department of Homeland Security. 

And I wanted to start out by reminding everybody on the Committee that we had some hearings about all these jobs that immigrants are taking. What was it, in Alabama and Georgia? And nobody wanted the jobs. They couldn’t get—they can’t get anybody for 

the jobs. 

And if there’s anybody on the Committee that thinks that, among 

the millions of unemployed, that they are looking for stoop labor, 

please see me immediately after this hearing so I can put that misunderstanding to rest. 

The heart of this hearing, from my point of view, is to ask this 

one question. Who would say that the Immigration and Customs 

Enforcement (ICE)—that their time and resources are better spent 

raiding kitchens and fields to deport busboys and farm workers 

who’ve been working here for years to support their families, usuVerDate Aug 31 2005 15:16 Jul 31, 2012 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\FULL\102611\70912.000 HJUD1 PsN: DOUGA
3 

ally, rather than targeting those convicted of serious crimes or repeat offenders? And I think within the resources of this very important agency, we will get the answer to that. 

Now, 2 months ago, the Immigration Subcommittee of the Judiciary held a hearing on the Chairman’s bill, H.R. 2497. I always 

loved the title of this bill—‘‘Hinder the Administration’s Legalization Temptation Act, acronym HALT. 

Now, 2 weeks ago, that same Subcommittee met again to conduct 

oversight with the director of Immigration and Customs Enforcement, John Morton, and in both hearings, my conservative friends 

of the Judiciary leveled essentially the same criticism—that the 

President of the United States refuses to enforce our immigration 

laws and is dead set on legalizing hundreds of thousands of undocumented immigrants with the stroke of a pen, and it was called 

back-door—a back-door amnesty strategy, and I’ll be waiting carefully to see if I hear that phrase raised again. 

And, of course, this is incorrect. Earlier this year, Director Morton of ICE issued a series of memoranda identifying Immigration 

and Custom Enforcement’s priorities, providing guidance on how 

ICE employees should exercise discretion to carry out those priorities. The memos aren’t surprising and I hope that they aren’t controversial to anyone. 

Given the resources limited that he has, ICE intends to 

prioritize, from my understanding of the hearing, the removal of 

people who threaten our safety—such as terrorists, such as criminals—before focusing on people who pose no such threat. And I will 

be carefully listening for any objection to that that might occur. 

Now, no agency or department can do it all. They have to make 

choices, and I will probably—we will have some of these choices 

that the Secretary has to make. The Department of Homeland Security and the Department of Justice are working together putting 

these enforcement priorities into action on a department-wide 

basis, and these actions couldn’t have come soon enough. 

Our immigration courts are backed up—we know that—that deportation hearings are being set for, get this—for 2014. And the 

Department of Homeland Security would act to alleviate this embarrassment just makes good common sense. 

And so I close, Mr. Chairman, that—asking us to look at this. 

Remember, this is the Judiciary Committee of the House of Representatives, and remember that in the two-and-a-half years of this 

Administration, we have deported a record one million individuals, 

one—over a million individuals, something that I do not—I’m not 

bragging about that, don’t get me wrong—increased worksite enforcement and targeted employers who break the law by conducting 

I-9 audits, levying fines, bringing criminal charges, push for the 

national expansion of Secure Communities, despite some opposition 

from some state governments or local law enforcement and even 

some advocacy groups, and finally increase criminal prosecution of 

immigration offenses so much that a legal reentry after deportation 

is now the most prosecuted Federal felony in the country. 

So I’m happy to see Ms. Napolitano here and welcome her, as 

does all of us on the Committee, for the discussions that will follow 

this morning, and thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Conyers. 

4 

Our witness today is Janet Napolitano, Secretary of the United 

States Department of Homeland Security. 

Sworn in on January 21, 2009, Janet Napolitano is the third Secretary of DHS. Prior to becoming Secretary, Ms. Napolitano was in 

her second term as governor of Arizona. While serving as governor, 

she became the first woman to chair the National Governors Association and was named one of the top five governors in the country 

by Time magazine. Ms. Napolitano also was the first female attorney general of Arizona and served as U.S. Attorney for the district 

of Arizona. 

Ms. Napolitano was born in New York City and grew up in Pittsburgh, Pennsylvania and Albuquerque, New Mexico. She is a 1979 

graduate of Santa Clara University, where she won a Truman 

Scholarship and was the university’s first female valedictorian. 

She received her Juris Doctor from the University of Virginia 

School of Law in 1983. Before entering public office, Ms. Napolitano 

served as a clerk for Judge Mary M. Schroeder on the U.S. Court 

of Appeals for the Ninth Circuit, and practiced law in Phoenix. 

We welcome you today, look forward to your testimony, and 

please proceed. 

TESTIMONY OF THE HONORABLE JANET NAPOLITANO, 

SECRETARY, DEPARTMENT OF HOMELAND SECURITY 

Ms. NAPOLITANO. Well, thank you. Thank you, Chairman Smith 

and Ranking Member Conyers and Members of the Committee for 

the opportunity to testify this morning. 

Today, I would like to update the Committee on the progress we 

are making, particularly with respect to our efforts to prevent terrorism and enhance security, secure and manage our borders and 

enforce and administer our Nation’s immigration laws, and I think 

I will begin there. 

The Obama Administration’s approach to immigration enforcement has been widely discussed among those who like to debate 

the topic, including Members of this Committee. 

Our policies have been simultaneously described as engaging in 

a mean-spirited effort to blindly deport record numbers of illegal 

immigrants, and alternatively described as comprehensive amnesty 

that ignores our responsibility to enforce the immigration laws. 

These opposing views are both incorrect, and it is my hope that 

moving forward we can have a civil and fact-based dialogue about 

immigration enforcement. 

And here are the facts. Overall, in fiscal year 2011, ICE removed 

or returned nearly 397,000 individuals, the largest number in the 

agency’s history. Ninety percent of these removals fell within one 

of our priority categories, and 55 percent, or more than 216,000, of 

those removed were convicted criminal aliens—an 89 percent increase in the removal of criminal aliens from fiscal year 2008. 

And this includes more than 87,000 individuals convicted of 

homicide, sexual offenses, dangerous drugs or driving under the influence. Of those we removed without a criminal conviction, more 

than two-thirds in fiscal year 2011 fell into the priority categories 

of recent border crossers or repeat immigration law violators. 

Now, as part of the effort to continue to focus on high-priority 

cases, ICE, in partnership with DOJ and across the Department of 

5 

Homeland Security, has implemented policies to ensure those enforcing the immigration laws make appropriate use of the discretion they already have in deciding the types of individuals 

prioritized for removal from the country. 

This policy will help immigration judges, the Board of Immigration Appeals and the Federal courts to focus on adjudicating highpriority removal cases more swiftly and in greater numbers, enhancing ICE’s ability to remove convicted criminals. 

It will also promote border security, as it sharpens ICE’s focus 

on recent border entrants and allows for the expansion of ICE operations along the Southwest border. 

We have also stepped up our efforts against employers who 

knowingly and repeatedly hire illegal labor and have taken action 

to identify visa overstays and to enhance refugee screening and 

also to combat human trafficking. 

Additionally, since 2009, we have carried out major reforms to 

the immigration detention system. These reforms ensure the health 

and safety of the detainees in our custody and allow ICE to maintain a significant, robust detention capacity to carry out serious immigration enforcement. 

So as I hope this makes clear, we cannot on the one hand be on 

the verge of removing for the third consecutive year a record-breaking number of unlawful individuals from the country, with the 

highest number of criminal removals in history, and at the same 

time be abrogating our law enforcement responsibilities. 

Similarly, exercising discretion with more speed and better 

prioritization than at any time in history, protecting victims of domestic violence, engaging in worksite enforcement rather than 

workforce raids, is not cosmetic tinkering. It is real change with 

real results, and vesting discretion in our immigration enforcement 

officers and immigration lawyers is not amnesty. It is a 

prioritization system that begins with finding and removing individuals who are criminals and repeat offenders. 

Now, at the same time, our officers have the legal responsibility 

to remove unlawful individuals from the country. They will also do 

so according to our priorities but they will also do their job. This 

Administration is committed to making sure that we have a southern border that is safe, that is secure, that is open for business. 

We are more than 2 years into our Southwest Border Initiative, 

and based on previous benchmarks set by the Congress, it is clear 

that the additional manpower, technology and infrastructure we 

have added are working. Apprehensions have decreased 36 percent 

along the Southwest border over the past 2 years and are less than 

one-third of what they were at their peak. 

And we have matched decreases in apprehensions—and apprehensions are a rough way to estimate how many are attempting to 

immigrate—we have matched decreases in apprehensions with increases in seizures of drugs, cash and weapons. Violent crime in 

United States border communities has remained flat or has fallen 

in the past decade. 

And then finally, U.S. Citizenship and Immigration Services— 

USCIS—continues to improve our ability to provide immigration 

benefits and services to those legally eligible in a timely and efficient manner by streamlining and modernizing our operations. 

6 

Our priorities are common sense. They enhance public safety. 

They help secure the border. They promote the integrity of the immigration laws. 

Yet, I think we all can recognize that more is required to fully 

address our Nation’s immigration challenges. President Obama is 

firm in his commitment to advance immigration reform, and I personally look forward to working with the Congress in a bipartisan 

way to achieve this goal and to continue to set appropriate benchmarks for our success in the future. 

So I want to thank this Committee for its support of our mission 

to keep America safe. 

I want to thank the men and women who are working day and 

night to protect and defend our country, often at great personal 

risk. And I look forward to a dialogue with this Committee on these 

important issues, or any other issues you wish to raise. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Napolitano follows:] 

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Mr. SMITH. Thank you, Ms. Napolitano. 

I’m going to recognize myself for questions and then other Members will be recognized. 

Ms. Napolitano, my first question is this. DHS currently declines 

to detain many criminal immigrants that are now held in our local 


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34 

jails and the result of that is that they are released into our communities. 

The Congressional Research Service says that under this Administration over half of the criminal immigrants identified, 300,000- 

plus have been released. Yet, when I ask what crimes these released criminals have been charged with, DHS responded that ICE 

does not track this data. 

So we don’t even know what crimes were committed by the criminal immigrants that DHS refused to detain. I am just wondering 

if that is the case. Do we in fact not determine what crimes have 

been committed and do we not know what crimes were committed 

by those individuals that DHS refuses to detain? 

Ms. NAPOLITANO. Well, Mr. Chairman—— 

Mr. SMITH. It seems so incredible that we would be releasing individuals without even knowing what crimes they might have committed. But I hope there is a good answer. 

Ms. NAPOLITANO. Yeah. Mr. Chairman, I don’t know the—I’m not 

personally familiar with the CRS study that you reference. But we 

detain and have beds at the number that the Congress funds, 

which is roughly around 34,000 beds, and there are decisions made 

about—— 

Mr. SMITH. But my question wasn’t about the number released 

or the beds. It was about do you know the crimes that were committed by those that you refuse to detain. 

Ms. NAPOLITANO. Well, I will look into that, Mr. Chairman. I will 

assume, because of my work with ICE and in this field over the 

past several decades, that detention decisions are made just as 

they are made in normal criminal prosecutions—based on public 

safety and based on risk of flight. 

Mr. SMITH. But you don’t know whether you know the crimes 

that were committed or not? 

Ms. NAPOLITANO. I don’t know exactly how they track but I will 

find out for you. 

Mr. SMITH. Okay. My information, incredibly enough, is that you 

don’t know what crimes were committed and these individuals are 

still being released, in effect. 

A second question is this—that I wrote you in August requesting 

to be provided a list of the immigrant criminals that DHS has declined to detain. Your staff at ICE and DHS have been cooperative 

and I appreciate their assistance. I was told that DHS has generated a list of names that being cleared before it was given to me. 

Instead, a letter I received yesterday from DHS’s assistant secretary for legislative affairs contained no names whatsoever but 

simply summary statistics about the Secure Communities Program. 

To me, this was not a good faith response. And so, I am just wondering what happened to the promised cooperation? 

And I would like a commitment from you that by 10 a.m. next 

Monday I get the information that I was promised and I would like 

to be delivered by that time. And can I get a commitment from you 

now that I will get that information? 

Ms. NAPOLITANO. I will look into that, Mr. Chairman. 

Mr. SMITH. You will what? 

Ms. NAPOLITANO. I said I will look into that, Mr. Chairman. 

35 

Mr. SMITH. Okay. Well, let me say to you that it has been 2 

months since I requested this information. We’ve had a good relationship with your staff. I was told that the list was available, had 

to be cleared, and now suddenly the list has apparently disappeared. 

And if I am not given that list as I understood to be promised 

that list, I will have no choice but to issue a subpoena. So I hope 

we can get that list. 

Let me go on to my next question, and you have heard me mention this in my opening statement. Now, worksite enforcement has 

dropped 70 percent over the past 2 years. ICE agents are instructed not to detain or remove most illegal immigrants found 

working illegally in the U.S. These illegal immigrants can simply 

walk down the street, knock on the door of another employer and 

take another job away from an unemployed American worker. 

At an Immigration Subcommittee hearing 2 weeks ago, ICE Director John Morton stated that illegal workers not detained, quote, 

‘‘can obviously continue to try to find employment,’’ end quote. 

So my question is why does the Administration allow illegal 

workers to take jobs away from unemployed American workers? 

Why do you allow these individuals to walk down the street? Why 

don’t you make an effort to detain them and remove them and send 

them home? 

Ms. NAPOLITANO. Well, let me—let me, if I might, address the 

numbers and then go to—to the detention. First of all, if you only 

look at the numbers in terms of percentages, you are right. The 

percentage has dropped in terms of workers who are being put into 

removal proceedings. But the base number is very small. 

I mean, between 2008, before this Administration, to fiscal 2011 

you are talking about a reduction from between around 5,000 worker removals to 1,500. 

You have to look at that in conjunction with the increase in 

criminal alien removals, which we have increased almost 100,000 

over the same period. 

Mr. SMITH. Right. Again, I am not talking about criminal immigrants. I’m talking about—— 

Ms. NAPOLITANO. I know you are not but I—I am making this 

point because, because we have prioritized and because we are removing more criminal aliens, you are going to see more of those in 

detention because they are more serious offenders. 

Mr. SMITH. Yeah. That—that—— 

Ms. NAPOLITANO. With respect to the individuals who we find at 

worksites, that is really not a case of—— 

Mr. SMITH. Madam Secretary, that really—that was not responsive to my question and you didn’t answer my question, which was 

why does the Administration intentionally allow these illegal workers to walk down the street and take other jobs from Americans. 

Why aren’t they being detained? Why aren’t they being removed? 

Ms. NAPOLITANO. They are being handled the way they have always been handled, Mr. Chairman. 

Mr. SMITH. No. The previous Administration did a lot better job 

at worksite enforcement than this Administration. As you just admitted—— 

Ms. NAPOLITANO. Well, I would just have to respectfully disagree. 

36 

Mr. SMITH. You—you admitted a while ago that my statistics 

were right—it is down 70 percent since the last Administration. 

Ms. NAPOLITANO. That is right. And as I tried to explain—let me 

say it again. If you actually look at the numbers, yes, you are right 

if you only look at 70 percent. But it is a small part of removal operation, and in exchange for that 3,500 diminution, we have increased the removals of criminal aliens who are a danger to public 

safety and I pointed that out. 

Mr. SMITH. I understand that, and my time has expired. But we 

are still talking about thousands of individuals taking jobs away 

from American workers. 

Ms. NAPOLITANO. Not necessarily, but we can discuss that further. 

Mr. SMITH. Okay. 

The gentleman from Michigan, Mr. Conyers, is recognized. 

Mr. CONYERS. Can I yield to Jerry Nadler? 

Mr. SMITH. And the gentleman yields to the gentleman from New 

York, Mr. Nadler. 

Mr. NADLER. Thank you. 

Madam Secretary, there are many and serious problems with respect to immigrant detention. I want to focus on the repeated 

transfers of detainees between ICE facilities. 

According to a June 2011 report by Human Rights Watch, there 

were about 2 million detainee transfers between 1998 and 2010, 

often over long distances that required the use of airplanes. Almost 

half of all detainees were moved at least twice. 

These transfers lead to inefficient removal hearings and cost 

$366 million in transportation alone, facts that should concern my 

friends on the other side of the aisle, among others. 

And the problems seem to be growing. Transfers tripled between 

2004 and 2009. Now, moving detainees away from where they live 

impedes their ability to retain counsel, often on a pro bono basis. 

Since they are often moved when their removal hearing is already underway the entire process bogs down, and detainees lose 

access to evidence as well as friends and family, which makes it 

difficult to show to a court in a bond hearing that they are not a 

flight risk, and this results sometimes in unnecessary and costly 

detention. 

Now, DHS and ICE seem to recognize that a transfer policy 

needs reform. In August of 2009, ICE Director Morton announced 

a series of changes, including the creation of an Office of Detention 

Policy and Planning to revise transfer policy. 

In October 2009, Special Advisor to ICE, Dora Schriro, recommended that detainees who are represented by counsel should 

not be transferred outside the area unless there are exigent health 

or safety reasons, and when this occurs the attorney should be notified promptly. 

In July of last year, ICE adopted an online locater—locater system so counsel, friends and family could at least locate detainees. 

Despite these steps, however, there still has not been a comprehensive change to detainee transfer policy. 

Now my questions. Madam Secretary, do you agree that we need 

to change to the policies which lead to the repeated transfer of deVerDate Aug 31 2005 15:16 Jul 31, 2012 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\WORK\FULL\102611\70912.000 HJUD1 PsN: DOUGA
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tainees so that we can finally protect their due process rights and 

improve the efficiency of our immigration courts? 

Ms. NAPOLITANO. Representative Nadler, there are a number of 

reasons why we want to limit transfers of detainees—the cost, efficiency, access to counsel, access to family members. The practical 

problem we confront is that we don’t always have detention beds 

where we have detainees and that causes there to be movement. 

One of the things we are doing through our Office of Detention 

Policy is trying to contract for more beds in some of our higher intensity areas so that we can limit the number of—of movement 

among our detainees. 

Mr. NADLER. Do you have any estimate of when the new policies 

to appropriately limit the transfers will be in place? 

Ms. NAPOLITANO. Well, it is our policy now to limit transfers. I 

think the question really is when will we have contracts for more 

beds, and as soon as we can get them we will get them. 

Mr. NADLER. So until you have contracts for more beds you cannot really limit transfers? 

Ms. NAPOLITANO. Well, we limit them as much as we can. 

Mr. NADLER. Do budget cuts negatively impact your ability to 

adopt a more humane and cost-effective transfer policy? 

Ms. NAPOLITANO. The Congress gives us a certain amount of— 

of money. We have to operate as efficiently as possible within the 

scope of that appropriation. We cannot remove 10 million people 

from this country. We have to make choices. We have to prioritize. 

But it that conjunction, yes. If we don’t have the money to move 

and if, more importantly, the Justice Department, the marshals, 

everybody else involved in the system doesn’t have the ability to— 

to manage that it—it is a problem. 

Mr. NADLER. Thank you. Among many problems relating to these 

transfers one that struck me was the impact it has on detainees’ 

ability to be represented by counsel. 

A June—a recent June report from Human Rights Watch says, 

and I quote, ‘‘Attorneys with decades of experience told us that 

they had—that they had not once received prior notice from ICE 

of an impending transfer. ICE often relies on detainees themselves 

to notify attorneys. But the transfers arise suddenly and detainees 

are routinely prevented from or are otherwise unable to make the 

necessary call. As a result, attorneys have to search the online detainee locator for their clients’ new locations. Once a transferred 

client is found, the challenges inherent in conducting legal representation across thousands of miles can completely sever the attorney-client relationship. This is especially true when the same 

person is transferred repeatedly.’’ 

That’s the quote. Now, this is all very problematic, obviously. 

Can you commit to me and to the Committee that you will take 

whatever the steps necessary to try to reduce significantly detainee 

transfers far away from counsel? In other words, the location of 

counsel should be one of the major—should be a determinant in— 

in who gets transferred to where. Can this be a part of ICE’s new 

policy on detainee transfers? 

Ms. NAPOLITANO. I think it should be one of the factors taken 

into account and—and I do think, you know, the—the fact that we 

now have a locator when we didn’t have one before, it sounds like 

38 

a simple thing but given the number of people who run through the 

immigration system in a given year, it—it was a difficult IT thing 

to—to get done because it is a fast-moving system. 

But that will help counsel as well. 

Mr. NADLER. And—and would you agree that it would be a better 

practice and policy to at least notify counsel when his or her client 

has been transferred and not make them look around on the online 

system? 

Ms. NAPOLITANO. Well, I think to the extent possible we should 

do that. 

Mr. SMITH. And the gentleman’s time has expired. 

Mr. NADLER. Thank you. 

Mr. SMITH. And the gentleman from Wisconsin, Mr. Sensenbrenner, is recognized. 

Mr. SENSENBRENNER. Thank you, Mr. Chairman. 

Madam Secretary, it is no secret that you don’t like the REAL 

ID Act and you have given numerous statements and speeches that 

you would like to see the REAL ID Act repealed and in its place 

put something called PASS ID on the books. 

Well, that is not going to happen. The suggestion didn’t get off 

the ground in the last Congress and it has not gotten off the 

ground in this Congress. 

The current exemption or extension that the DHS has given on 

REAL ID To the states is now January 15th, 2013. Are you going 

to extend it again? 

Ms. NAPOLITANO. Representative Sensenbrenner, first of all, I 

cannot take sole credit for opposing REAL ID. When I was involved 

with the National Governors Association it was bipartisan and uniform amongst all the governors that the—the line in the appropriations bill that was REAL ID did not appropriately incorporate concerns of state officials on how you actually implement, and was an 

unfunded mandate. 

That being the case, we did work with the governors on PASS 

ID and, unfortunately, for whatever reasons the Congress decided 

they didn’t want to take that up. It would have been better to do 

so. Now we have a bill the governors still are uncomfortable with 

implementing. They have budget constraints of their own. 

But we agree with the goal of the bill, and the goal of the bill, 

of course, is to have a more secure, particularly, driver’s license. So 

we are working with the states and a number of them—I think 22 

now—are almost at the point where they would meet REAL ID. 

Others are along the way. 

Mr. SENSENBRENNER. Are you going to—are you going to drop 

the boom on the states that refuse to comply or can’t comply as of 

January 15th, 2013? Meaning that the non-compliant driver’s license, can that be used to enter Federal buildings, nuclear power 

plants, get on a planes during the TSA inspection or is there going 

to be a further delay in this? 

Ms. NAPOLITANO. Representative Sensenbrenner, I can’t say right 

now. There’s a—a year between now and then to work with the 

states. I think the governors generally agree with the goal of REAL 

ID. It’s just how you get there. 

Mr. SENSENBRENNER. Well, they are not going to get unilateral 

revenue sharing out of the Congress on this. So they can increase 

39 

the cost of driver’s licenses, as my state has. But your REAL ID 

rules review in your shop only consists of three professional staff 

members and one administrative support person. 

And as there are more documents that are submitted by the 

states that are not in compliance, how do you expect to get through 

that paperwork with just four people working on it? 

Ms. NAPOLITANO. Well, Representative Sensenbrenner, if we 

need to put some more people on that project we will. I have not 

been informed that we need to do so. 

Mr. SENSENBRENNER. Mm-hmm. Now, I’m getting back to the 

question that I asked and I don’t think you answered—as the—if 

states are out of compliance on January 15th, 2013, are DHS personnel going to be instructed not to accept noncompliant identification to get into the Federal facilities or to get on a plane? 

Ms. NAPOLITANO. Well, Representative Sensenbrenner, I—I really don’t like to speculate on things that could happen over a year 

from now. I am going to work with the states. We will work with 

the states and bring them into compliance if we can. 

Mr. SENSENBRENNER. Okay. When are you going to start informing the states of how and when REAL ID will be enforced? 

Ms. NAPOLITANO. Well, we—we stay in regular contact with the 

governors primarily through the NGA about REAL ID. And I suspect when they have their winter meeting here in January that 

will be one of the topics that we take up with them. 

Mr. SENSENBRENNER. Well, the 9/11 Commission was very firm 

in saying that we had to have secure ID after looking at the—the 

IDs that the 19 hijackers were able to get for themselves. And the 

longer this Administration and the governors that don’t want to do 

this delay this, the more risk the American public has on a terrorist that wants to commit a major act of terrorism. 

And I spent a lot of time during my chairmanship to try to prevent that from happening. This is still a hole in the system that 

can be exploited and it is not due to a lack of congressional action, 

for once. 

It is due to a lack of implementation by DHS and it is due to 

a lack of will by the governors in providing for the safety and security of their driver’s licenses. 

I am not for a national ID card. But the longer this goes on, if 

there is a major terrorist attack because REAL ID has not been implemented for whatever reason, there will be a huge push here for 

a national ID card. 

So I think it is in the interest of everybody to make sure that 

REAL ID is implemented the way it was written and passed in 

2005. 

Thank you. 

Mr. SMITH. Thank you, Mr. Sensenbrenner. The gentleman from 

Virginia, Mr. Scott, is recognized. 

Mr. SCOTT. Thank you. Madam Secretary, the Alabama law that 

was recently passed allows Alabama to inquire into immigration 

status. Is the Department of Homeland Security working with Alabama in helping them implement that law? 

Ms. NAPOLITANO. Representative Scott, could you—is your microphone—— 

40 

Mr. SCOTT. Alabama has—Alabama’s immigration law allow—allows Alabama officials to inquire as to immigration status. Is the 

Department of Homeland Security working with Alabama to help 

them implement that law? 

Ms. NAPOLITANO. Not in that sense. We have been working with 

the Department of Justice on its challenge to that law. 

Mr. SCOTT. Okay. And is there any way that—and how would 

that law affect Hispanic citizens? 

Ms. NAPOLITANO. It—you know, I don’t know the answer to that 

question right now. The law has just gone into effect. 

Mr. SCOTT. Well, I mean, you—you would have to assume that 

Hispanic citizens would be adversely affected because they would 

have to be showing ID about everywhere they go, other—a—a situation that other citizens would not have to do. 

Ms. NAPOLITANO. I think that should be a real concern. You are 

correct. 

Mr. SCOTT. The Prison Rape Elimination Act—has that been applied to ICE facilities? 

Ms. NAPOLITANO. Yes. We have a zero tolerance policy for sexual 

harassment or misconduct by detention officers, be they those who 

are actual public employees or—or contracted. 

Mr. SCOTT. And how—how are we doing on that? Have there 

been any complaints of sexual harassment and illegal sexual activity? 

Ms. NAPOLITANO. Yes, there are—there are complaints. And 

when there—there are, the instruction is that they are to be explored and they are to make sure that if there needs to be corrective action taken, whatever that may be under the circumstances, 

that is to be done. 

Mr. SCOTT. How are we doing in that—in that area? 

Ms. NAPOLITANO. My understanding is that we are being very 

firm in this area and that we are dealing with those complaints expeditiously. 

Mr. SCOTT. Are you familiar with the Frontline expose from a 

few weeks ago? 

Ms. NAPOLITANO. Yes. 

Mr. SCOTT. Was that accurate? 

Ms. NAPOLITANO. No. 

Mr. SCOTT. Could you give an update on the TSA work with religious groups as far as how people with religious dress can get 

through security? 

Ms. NAPOLITANO. We are working—you know, the—the issue for 

us is what to do with those who wear—who have bulky clothing on, 

and particularly bulky head gear, and this can affect particular religious groups and religious beliefs. We have a process that we follow that I think has accommodated both religious group beliefs and 

our security needs. 

But we continue to have ongoing dialogue as—as I think we 

should. 

Mr. SCOTT. Within ICE, do you have detainees with mental illness that causes problems, like people who are incompetent that 

stay in ICE kind of limbo indefinitely? 

Ms. NAPOLITANO. Given the number of people that we have in detention at any given time and over the course of a year, we—I am 

41 

certain we have some detainees who have mental health issues as 

well as detainees who—of course, who have physical health issues. 

Mr. SCOTT. Now, what is done for those that are kind of in 

limbo—those who are mentally incompetent that just kind of sit 

there indefinitely? 

Ms. NAPOLITANO. Well, one of the things that we are trying to 

do by the prioritization process and by reviewing the cases currently on the master docket is to speed up the time by which those 

in detention can actually have their cases heard. That is one of the 

impetuses behind the case-by-case review. 

Mr. SCOTT. And—and do we have people kind of in limbo that 

are there indefinitely? 

Ms. NAPOLITANO. Well, there are people in limbo in the immigration system generally, and the fact that there are people in limbo 

is one of the reasons why we hope at some point in time the Congress could take up the overall immigration system and immigration reform. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. Thank you. Thank you, Mr. Chairman. Madam Secretary, good to have you on the Hill. Good to have you with us. 

Do you, Madam Secretary, agree with President Obama’s statement that removal numbers are deceptive and what—do you know 

what he meant by that? 

I am thinking he may have been referring to voluntary returns. 

Ms. NAPOLITANO. No. I think what he was referring to, if I recall 

the context of that quotation, Representative, was that overall removal numbers are up. 

As I said, we removed 397,000 people last year, more than ever 

before, but he was explaining that you also have to look at what 

comprise—what was in that number and he was referring to the 

fact that we have greatly increased the number of criminal aliens 

that are removed within the context of the overall number. 

Mr. COBLE. So voluntary returns would not have been part of his 

statement on that? 

Ms. NAPOLITANO. I don’t believe so, no. 

Mr. COBLE. Over the length, Madam Secretary, of the Bush Administration, I am told that yearly removals went up in excess of 

90 percent. Will the current Administration come close to this rate 

of increase? 

Ms. NAPOLITANO. I would have to check those numbers. My 

under—I don’t know where those numbers come from. 

Mr. COBLE. And I don’t recall my source. If you will get back to 

us on that, I would appreciate that. 

Ms. NAPOLITANO. Yes, sir. 

Mr. COBLE. Yesterday—well, strike that. Last week, you told 

Senator Durbin that it cost in the neighborhood of $23,000 to 

$30,000 to annually remove one person. Earlier this year, however, 

ICE provided the Judiciary Committee with data indicating a total 

cost of removal of $12,198. 

So the disparity is significant. Have you seen ICE’s immigration 

enforcement lifestyle unit cost report? 

42 

Ms. NAPOLITANO. I don’t know whether I have seen that report. 

The number I gave was what it cost to go through the entire removal including through the court system, and that is an estimate, 

of course. 

I don’t know whether the ICE number was with respect to ICE’s 

part of that only. So we will—we will get back to you on that as 

well. 

Mr. COBLE. I would be appreciative to you if you do that. Now, 

again, and I’m going to blank on my source, I don’t recall where 

I read this or heard it, but I have heard that DHS might consider 

reopening cases in which aliens with final orders of removal have 

already been removed from the United States. 

Is there any credence to that? 

Ms. NAPOLITANO. That would be news to me. 

Mr. COBLE. Okay. If you could check that out. 

Ms. NAPOLITANO. I—yes. I don’t—I don’t think that is accurate. 

Mr. COBLE. Okay. Might DHS reopen cases in which final orders 

of removal have already been removed? You say this is not known 

to you? 

Ms. NAPOLITANO. No. 

Mr. COBLE. Okay. Last week, again, during your appearance before the Senate Judiciary Committee you testified that absent unusual circumstances, cases with final removal orders will not be reopened. 

If you would, Madam Secretary, elaborate on what would constitute an unusual circumstance. 

Ms. NAPOLITANO. Oh, it is hard to say, Representative. There are 

so many human factors that go into immigration. There are so 

many—so many variations in the cases. 

It—one might be where someone is needed to come back to be a 

witness in another ongoing and unrelated criminal prosecution and 

where the Department of Justice asks us to bring someone back. 

Mr. COBLE. Prosecutorial discretion is already being exercised as 

it has always been by the officers and agents on the front lines who 

are closest to the facts of the cases involved. 

Let me put a two-part question to you. Why do DHS and Department of Justice bureaucrats in Washington have to go back and 

double-check the work and expertise of those front-line law enforcement professionals? 

Ms. NAPOLITANO. Well, Representative—and I have led large 

prosecution offices many times, both as a U.S. Attorney and an attorney general, and it is important to the field for fairness, for consistency to have guidance as to what the prosecutorial priorities 

are and that is exactly what we have been doing. 

We have a big field, lot of agents out there. You are right, they 

have a lot of expertise, but their expertise—and they like this. It 

puts their cases—they know where they stand and where our priorities are—puts them into an overall framework. 

Mr. COBLE. I thank you, Madam. Mr. Chairman, I see my red 

light is illuminating so I yield back. 

Mr. SMITH. Thank you, Mr. Coble. 

The gentlewoman from California, Ms. Lofgren? 

Ms. LOFGREN. Thank you, Mr. Chairman, and thank you, Madam 

Secretary, for being here with our Committee. 

43 

I want to touch first on a cyber security issue. DNSSEC, which 

is the Domain Name System Security Extensions, was ordered—deployed across the Federal Government in 2008 by OMB, and in 

2010, the White House said that the DNSSEC for the Internet’s 

root zone was a major milestone for Internet security. 

On the Homeland Security website, DNSSEC is quoted as being 

of critical importance to securing a Federal Internet domain. So 

here’s my question. Do you think it is important that U.S. government policies toward the Internet should preserve the effectiveness 

of DNSSEC and other authentication technologies for a cyber security point of view? 

Ms. NAPOLITANO. Yes. 

Ms. LOFGREN. Thank you very much. 

I want to get into the immigration issue, the detention issue. 

Last week, the ACLU filed a lawsuit—Doe v. Neveleff—accusing 

ICE of failing to protect female detainees from sexual assault by 

a private prison guard at Hutto Detention Facility. 

Nine women are specifically identified as being—having been 

sexually assaulted by a guard when he transported them out of the 

facility during a release process without appropriate supervision 

and that countless others may have been assaulted. 

In April this year, the National Immigrant Justice Center filed 

a complaint with your Office for Civil Rights and Civil Liberties alleging serious mistreatment of 13 gay and transgender detainees, 

alleging sexual assault by guards and fellow detainees, denial of 

medical care, use of long-term solitary confinement, and 36 of my 

colleagues brought this complaint to your attention and to the attorney general earlier this year and I understand it is still under 

review. 

Now, going back to Mr. Scott’s question about the rape—Prison 

Rape Elimination Act—it is my understanding that the Department of Justice has specifically excluded immigration detention facilities from their proposed rule. They seem to be relying on ICE’s 

detention standards on sexual abuse, but those are not mandatory. 

They lack the force of law. 

So I am wondering if, by your answer to Mr. Scott, you are 

agreeing that that Prison Rape Elimination Act ought to, in fact, 

be imposed on detention standards—in ICE detention. 

Ms. NAPOLITANO. Well, let me answer in two parts. One is that 

I would obviously have to look at the act but—before making a 

blanket agreement. But going to the problem that—that we are trying to address, which is if there is inappropriate, wrong or criminal 

conduct, and it can be in some circumstances criminal, by officers 

against detainees, that needs to be dealt with and it needs to be 

dealt with efficiently, firmly and quickly and that—and we have a 

zero tolerance policy for that conduct. 

Ms. LOFGREN. Well, you inherited an awful mess when—in terms 

of detention when you came in. There were a lot of stories in the— 

in the New York Times, the Washington Post. There were deaths 

in detention, and you brought in an expert to try and put some 

order to it. There was a report that was a pretty good report and 

it doesn’t look to me, but I guess this is a question, that we have 

actually implemented that report fully. 

Can you address that? 

44 

Ms. NAPOLITANO. Well, I would say we have implemented good 

measures of that report and we use it as our guidepost. We did create a separate office within ICE to deal solely with detention. 

We eliminated a number of the contractors that we were dealing 

with and consolidated facilities. 

Ms. LOFGREN. Well, let me do this. Let me—I see my yellow light 

on. I don’t want to be rude but I know the Chairman’s going to 

gavel me down. Perhaps I can follow up with some of the detailed 

questions I have with you. 

I have a final question on how we are going to interact with the 

new Alabama law. As you know, their new law makes it a felony 

for an undocumented person to engage in any business transaction 

with a government entity. 

What that means is if you had a mother who is undocumented 

and she gets a library card for both of her U.S. citizen children, she 

committed two felonies. 

Under our detention and removal priorities, that woman who got 

two library cards would be the worst of the worst to be deported. 

How are we going to deal with that Alabama law in our priorities 

in Mr. Morton’s memo? 

Ms. NAPOLITANO. Well, the scenario you depict is not within our 

priorities and it is—you know, the purpose of the litigation we have 

undertaken is—the underlying principle is that it is for the Federal 

Government to set immigration law enforcement priorities. 

Ms. LOFGREN. So we will look beyond the mere conviction? 

Ms. NAPOLITANO. We will look at the cases individually, yes, as 

we will in other states as well. 

Ms. LOFGREN. Very good. 

Ms. NAPOLITANO. Not just in Alabama. 

Ms. LOFGREN. Very good. Thank you very much. 

Mr. SMITH. Thank you, Ms. Lofgren. 

The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and thank you, Secretary, for being here. 

Just for my own edification, did the president get any information or guidance from you or anyone in your department before his 

decision to support the ouster of President Mubarak and also to assist the rebels in Libya? 

Ms. NAPOLITANO. He did not get any information from me or my 

department, to my knowledge. 

Mr. GOHMERT. You didn’t give any guidance on that at all—nobody from your—Homeland Security did that? 

Ms. NAPOLITANO. No. 

Mr. GOHMERT. Okay. Did the President get any information or 

guidance from Homeland Security before his decision to pull out 

the troops from Iraq or a drawdown in Afghanistan? Do you assist 

in that at all or anybody from your department? 

Ms. NAPOLITANO. Again, these are not matters really within the 

purview of the Department of Homeland Security. 

Mr. GOHMERT. Okay. So they were considered completely unrelated to our own homeland security? 

Ms. NAPOLITANO. Well, you can—Homeland Security covers so 

many fields that I wouldn’t—that what I would say simply is, if the 

question is were we involved in that—— 

45 

Mr. GOHMERT. Well, the question was as it was. 

Ms. NAPOLITANO [continuing]. Was I involved in that decision. 

Mr. GOHMERT. Did you provide information that would have been 

utilized in any of those decisions? 

Ms. NAPOLITANO. Not that I—not that I know of. 

Mr. GOHMERT. Okay. Last year, Admiral Mullen said that—his 

words—the national debt is the single biggest threat to our national security. We have millions of people coming into this country 

on visas, some illegally, who come in and get health care and leave 

without paying. It is an ongoing problem. 

We now are seeing that there will be Americans who are not getting health care as quickly as they need or that they need because 

it appears we are moving to rationed care. So it should be a very 

important issue. 

We have inquired of the State Department about the applications 

for visas. They tell us that there is no provision in the application 

that indicates whether they have been diagnosed with any condition—heart problems, cancer, pregnancies, needed surgeries—on 

the application for a visa. So that is not considered at all when people come in. 

We are also told by the State Department that even though the 

spouse’s name is on the application, they don’t normally ever check 

the spouse’s name on the terrorist watch list before deciding to approve the benefits of a visa. 

Do you think that would be a good idea to check the spouse’s 

name on the terrorist watch list or do you concur that there is just 

not time and it is not worth it? 

Ms. NAPOLITANO. Well, I can’t answer because I haven’t seen 

what the State Department responded to or what they—— 

Mr. GOHMERT. Well, I am just—that wasn’t my question to you. 

My question to you is would it be a good idea to check the spouse 

is on the terrorist watch list. 

Ms. NAPOLITANO. Well, I think that one of the—the things that 

we have been able to do over the past several years is to unify 

databases, unify search engines in such a way that those kinds of 

security checks can be more easily done. 

Mr. GOHMERT. But if they don’t do the checks it is a problem, 

isn’t it? 

Ms. NAPOLITANO. It could be a problem. But, again, I don’t know 

about that. 

Mr. GOHMERT. Thank you. All right. Let me move on. 

Do—do you make the final decision as to who is put on your 

Countering Violent Extremism Working Group? 

Ms. NAPOLITANO. We have an individual in the department who 

is the lead on CVE and so—— 

Mr. GOHMERT. Okay. Do you—are you consulted at all on who is 

put on that working group? 

Ms. NAPOLITANO. I have not been, no. 

Mr. GOHMERT. All right. 

Are you aware that the president of ISNA, Imam Magid, is a 

member of that working group, correct? 

Ms. NAPOLITANO. I can’t answer that. I don’t know whether that 

is an accurate statement or not. 

46 

Mr. GOHMERT. Okay. Well, you can go look at your own website 

and find the documentation. He has been on your working group, 

the Countering Violence—Violent Extremism. Do you know how 

many of the members of your Countering Violent Extremism are 

members of Muslim Brotherhood? 

Ms. NAPOLITANO. Again, since I—I am not involved in the appointment but if I might—if I might just—— 

Mr. GOHMERT. Well, let me—my time is running out, so I really 

don’t have time but—— 

Ms. NAPOLITANO [continuing]. If I might elaborate on my answer. 

Mr. GOHMERT [continuing]. But I have got a very serious question that needs to be confronted. 

Ms. NAPOLITANO. Well, I would be happy to look into that. 

Mr. GOHMERT. Are you familiar with Mohamed—are you familiar 

with—— 

Ms. NAPOLITANO. Sir—sir, I would like the ability to expand on 

my answer, if that is all right with you. 

Mr. GOHMERT. I don’t have time. I am running out and I can’t 

be filibustered. 

Ms. NAPOLITANO. Well, okay. 

Mr. GOHMERT. But let me ask you, Mohamed Elibiary is—was a 

member of the working group. You promoted him, and it said 

there—I have got articles here that say you swore him in as a 

member now of your, let’s see, the Homeland Security Advisory 

Group. He has apparently been given a secret clearance. Do you 

know, Mr. Elibiary? 

Ms. NAPOLITANO. Yes. 

Mr. GOHMERT. OK. Were you aware he had a secret clearance? 

Ms. NAPOLITANO. I believe everybody on the Homeland Security 

Advisory Council ultimately gets a secret clearance because of the 

materials they would get. 

Mr. GOHMERT. Would you be surprised if they—well, I don’t have 

time. But were you aware that he spoke at the big event in Texas 

honoring the Ayatollah Khomeini? 

Ms. NAPOLITANO. I am not aware of all the places he has spoken. 

Mr. SMITH. The Chairman’s time has expired. 

Mr. GOHMERT. But may I—if I could just have 15 seconds. This 

is critical. 

Secretary, were you aware that a week ago today, from his home 

computer he accessed the SLIC database, got information off and 

has been shopping a story to national media on Islamophobia directed at the governor of Texas and the security folks there in 

Texas? Were you aware of that? 

Ms. NAPOLITANO. No. 

Mr. SMITH. Thank you, Mr. Gohmert. 

Mr. GOHMERT. I’m telling you it happened. Do we need to appoint somebody or will you have that investigated yourself, and if 

so, by whom? 

Ms. NAPOLITANO. Well, since I don’t know the facts, I will have 

to look into the facts. 

Mr. GOHMERT. So you will be the one to make that call? 

Ms. NAPOLITANO. We will have somebody, and it will be myself 

or someone. 

47 

Mr. GOHMERT. Does it concern you at all that it happened? I am 

telling you it happened. 

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

Mr. GOHMERT. Okay. Doesn’t come—— 

Mr. SMITH. The gentleman from Illinois, Mr. Quigley, is recognized. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Thank you, Madam Secretary, for being here today. 

As you know, I am the sponsor of the Secure Travel and 

Counterterrorism Partnership Program Act, which would allow you 

to bring additional eligible countries into the visa waiver program 

by modifying the primary qualifying criteria for entry. I am doing 

that with many others, including Mr. Chaffetz, from this Committee. 

On Wednesday, October 5th, the House Homeland Security Subcommittee on Counterterrorism and Intelligence held a hearing on 

what DHS is doing regarding security and safety for international 

travel. 

At that hearing, Mr. Heyman testified and spoke to the issue of 

the visa waiver program and said that it would be—he thought it 

would be terrific to expand visa waiver. 

He didn’t have the technical specifications about the department’s data capabilities, but he did say that any changes would be 

rolled over—rolled out over a period of time and they would allow 

DHS to meet the necessary requirements. 

What I have been telling folks about why I support this program 

is that it is not your father’s visa waiver program—that your agency and others have been working hard to increase the security in 

this program and how it would perform under existing programs 

and additional in countries. 

I was hoping that you might speak about what the department 

is doing, the work on this data and what we might be seeing in the 

coming weeks and months that would increase our knowledge 

about who is coming and going under existing programs and under 

countries like Poland that, I think, should have been part of this 

program for a long time. 

Ms. NAPOLITANO. Well, Representative Quigley, we would like to 

provide not only technical assistance on review of that but support. 

You know, Poland’s been an ally of ours for a long time. They are— 

they are—we have a very good relationship with Poland. So that 

is, I think, would be a good thing for the United States to do. 

With respect to visa waiver generally, one of the things, as I was 

explaining earlier, we have been able to do over the past several 

years is to really make our data systems, both biographic and biometric, much more robust in a way that gives us a lot of the security features of the old visa—of visas without necessarily having a 

visa issued. 

Part of this, of course, is what we have done to incorporate ESTA 

with respect to flights leaving for the United States. Part of it has 

to do, again, with uniting CBP databases with TSA databases in 

a way they weren’t united prior to 2009. 

Mr. QUIGLEY. I think you testified earlier to the Senate about 

some of this, and you were stressing biographic information and 

the new research that is being done and the new work you are 

48 

doing, why that is as important or more important or more feasible 

than biometrics. Could you focus on that for a minute? 

Ms. NAPOLITANO. That is right. Well, biometric, as we have 

looked at it, particularly for exit, is extraordinarily expensive. And 

what we have found is by greater use of much more robust biographic data, we really get to 99 percent of what you would have 

with a very expensive biometric system. 

Mr. QUIGLEY. In—in a nutshell, can you explain to those new to 

this issue why countries that participate in a visa waiver program, 

especially under this new information you are requiring, actually 

makes us safer? 

Ms. NAPOLITANO. Well, because part of the agreement to engage 

or be a visa waiver country, part of that agreement is also the 

agreement to sign other agreements; for example, one called the 

PCSC—the Preventing and Combating Serious Crime—which relates to the exchange of criminal history databases. 

So in exchange for a visa waiver, there are other agreements 

that we get from the countries in the program. 

Mr. QUIGLEY. Very good. 

Thank you, Mr. Chairman. I yield back. 

Mr. SMITH. Thank you, Mr. Quigley. 

The gentleman from Texas, Mr. Poe, is recognized. 

Mr. POE. Thank you, Mr. Chairman. 

Thank you for being here, Madam Secretary. 

The GAO has reported that 44 percent of the border is somewhat 

secure. Fifty-six percent is not secure. Do you agree with that statistic? 

Ms. NAPOLITANO. No, and I don’t think that is exactly what they 

said, and I have testified to this several times, Representative. 

They were using the phrase ‘‘operational control,’’ which is a term 

of art within the Border Patrol. 

It is actually somewhat misleading because it doesn’t capture 

not—not just the—the Border Patrol, but the technology and infrastructure that goes along with it. So it is not an accurate statement. 

Mr. POE. So what would you say is secure? So it is not an accurate statement? 

Ms. NAPOLITANO. It is not an accurate statement, no. 

Mr. POE. All right. So who controls the other 56 percent if we 

don’t have operational control? 

Ms. NAPOLITANO. No. We—we have—we have the responsibility 

for that entire border, as you know. It includes a—— 

Mr. POE. So who controls it? 

Ms. NAPOLITANO [continuing]. Amount of manpower and technology and infrastructure we have put down at the border. It is a 

very different border than it was even three or 4 years ago. 

Mr. POE. I agree. It is worse. 

The Iranians, apparently, think our border is less secure than we 

do. Otherwise, they wouldn’t have gone to Mexico to work with 

supposedly the Zetas to smuggle in explosives into the United 

States. 

What do the Iranians know about the cross-border traffic of the 

Zetas or other drug cartels that we are missing? In my opinion, the 

49 

Zetas, other drug cartels, have—they have access to the United 

States. They have access back to Mexico. 

So it seems like the Iranians, obviously, know something about 

the—the lax border than we do. 

The Bureau of Prisons says that 27 percent of the people in the 

Federal penitentiary—27 percent—are foreign criminal aliens. That 

means they are illegally in the United States when they commit a 

felony. All of those 27 percent—a fourth of the population in the 

Federal penitentiaries—got here some way, and they got here illegally, according to the statistics of the Bureau of Prisons. 

And if the border is so secure—let me give you some insight as 

to the Texas border where I have been numerous times in areas 

that aren’t exactly as safe as you claim. 

The sheriffs—on any given day, we will call the sheriffs in the 

border jails and say, how many people are in your jail that are foreign nationals? Not criminal aliens—foreign nationals. 

The most recent one is a—I have the border counties—and the 

average is about 34.5 percent of the people in Texas border jails are 

from foreign countries. Now, these are cross-border criminals. 

These are people who come in the United States, many of them 

commit their crimes and then they go back to where they came 

from—into Mexico—unless they are caught by local law enforcement. 

These aren’t people in jail with immigration violations. Based on 

your experience, do you think 34 percent is a high number of foreign nationals in anybody’s jail? 

Ms. NAPOLITANO. Well, I—I—— 

Mr. POE. I mean, either you do or you don’t. 

Ms. NAPOLITANO. Listen—— 

Mr. POE. I am listening. You listen. Answer the question. You’re 

a lawyer. You know to answer the question and not just ramble so 

that the time expires. 

Do you think 34.5 percent of the people in jail being from foreign 

countries is a high number or not? 

Ms. NAPOLITANO. The border communities in Texas, Arizona, 

New Mexico and California have either had violent crime rates the 

same or decreasing in the last 5 years, and dramatically so. They 

are listed—El Paso, Austin, San Diego—among the safest communities in the United States. We have, and that does not mean—— 

Mr. POE. Reclaiming my time. Sorry. Reclaiming my time. 

I’m not talking about specific towns—El Paso. The crime is in between the ports of entry. It is not necessarily in Brownsville or San 

Diego or in the city of El Paso. The crime is in between. The jails 

are occupied by 34 percent foreign nationals. 

My question is simple. Do you think that is a high number? Either you do or you don’t. 

Ms. NAPOLITANO. Well, that is one of the—if that is accurate— 

and I don’t know that it is accurate—if it is accurate, it is one of 

the reasons we installed Secure Communities in the border jails 

first. 

Mr. POE. Let me ask you another question. 

The 20-point deferred prosecution memo that came out—Mr. 

Morton testified that there was White House input on that. Do you 

50 

agree with his statement when he testified before us that there 

was White House input on the 20 points deferred prosecution? 

Ms. NAPOLITANO. Well, I think the memo was prosecutorial discretion, not deferred prosecution. 

Mr. POE. That’s correct. I’m sorry. Prosecution discretion. 

Ms. NAPOLITANO. And—well, because immigration involves two 

major agencies—DHS and DOJ—it is entirely appropriate, and yes, 

there was coordination with the White House. 

Mr. POE. Do you know of statutory authority, not court authority, 

statutory authority for deferred prosecution? Congress, that is us, 

Congress passing laws allowing for deferred prosecution, or prosecutorial discretion. I’m sorry. Prosecutorial discretion. 

Ms. NAPOLITANO. Well, there—you know, you forget Congress. 

You go back to Article 2, Sections 1 and 3 of the Constitution. 

Mr. POE. Well, of course, the Constitution does say that the— 

Congress is to be responsible for naturalization and making the 

laws on naturalization, not the Executive Branch. So if you want 

to quote the Constitution you might want to—— 

Ms. NAPOLITANO. Well, the—— 

Mr. POE [continuing]. Read that section as well. 

Ms. NAPOLITANO [continuing]. Section in the—Article 2, Section 

3 says, ‘‘The Executive Branch shall make sure the laws are carried out.’’ And that has been interpreted by the U.S. Supreme 

Court and by statute to mean—— 

Mr. POE. What’s the statute? 

Ms. NAPOLITANO. That the Executive Branch has prosecutorial 

discretion. 

Mr. POE. I didn’t ask you about the Heckler case. You noticed I 

didn’t ask you about that. I am asking about constitutional, legislative, statutory authority to ignore portions of the law based on a 

memo. Is there statutory authority to do that? 

Ms. NAPOLITANO. Well, there—— 

Mr. POE. The Constitution does say that the—— 

Ms. NAPOLITANO. Wait. 

Mr. POE. Wait a minute. I’m talking. 

Ms. NAPOLITANO. Yes. 

Mr. POE. The Constitution does say that the Executive Branch 

is to enforce the law of the land—carefully enforce the law of the 

land—and it seems to me the Executive Branch is giving a pass to 

a lot of folks under the guise of prosecutorial discretion. I will yield 

back my time. 

Mr. SMITH. Okay. The gentleman’s time has expired. Which—— 

Ms. NAPOLITANO. Mr. Chairman—Mr. Chairman, may I—may I 

respond or—— 

Mr. SMITH. Yeah. 

Ms. NAPOLITANO [continuing]. Would you like me to wait? 

Mr. SMITH. Madam Secretary, please respond to the question. 

Sure. 

Ms. NAPOLITANO. Yeah. I would—I would simply say that prosecutorial discretion by prosecutors, by immigration has been enforced and—and done by Republican and Democratic administrations, and it makes sense. 

Mr. SMITH. Okay. And let me also add and say to the gentleman 

from Texas that the GAO study that he referred to which found 

51 

that only 44 percent of the border was under operational control 

found that only 15 percent of the border was under actual control. 

So it is a lot less than might—than many people might think. 

The gentlewoman from California, Ms. Chu, is recognized. 

Ms. CHU. Thank you, Mr. Chair. 

Madam Secretary, I want to thank you for moving forward with 

clearer guidelines for ICE officers to use prosecutorial discretion on 

these immigration cases. And I think, in fact, that it uses our available resources to target those who need it the most, which is serious felons, drug traffickers, and others who would do America 

harm. 

This is just common sense. We should be using our scarce taxpayer dollars not to deport students but to primarily convict—to 

deport those convicted of violent felonies who pose a threat to public safety. And though some say that you are doing something new 

here, I know that all law enforcement bodies set priorities and that 

our immigration enforcement agencies are not different. 

Republicans and Democrats have called for more discretion and 

your agency under both Republican and Democratic administrations have issued policies on, and required the use of, prosecutorial 

discretion. And, in fact, as a long-time prosecutor, you know better 

than most that you can’t enforce the law and prosecute if you can’t 

get it on the court’s docket. 

Our immigration court system is incredibly backlogged. More 

than 300 cases—300,000 cases are pending at any time and immigration judges are scheduling hearings for 2014. So it makes sense 

that you are now reviewing that backlogged docket to—to sort 

through the cases. 

And isn’t it right that Code 6 USC 202 specifically directs you 

to establish national immigration enforcement policies and priorities? And in Congress’ annual appropriations bills, have we not directed you to repeatedly prioritize the removal of serious criminal 

aliens, and funded programs that specifically target such—such 

populations? 

And, in fact, in this effort could you tell me how it enhances your 

ability to swiftly remove people who are a priority to the agency? 

Ms. NAPOLITANO. Well, the answer is yes. Congress has given 

such direction. I don’t know the exact number of the citation but 

I think that is accurate. 

What we are doing is—is if you—if you think about the immigration system in segments, the segment is who is being picked up for 

removal and that is where we are prioritizing our enforcement efforts. 

So you get operations like Cross Check, where we picked up 

thousands of criminal fugitives just a—a couple of weekends ago. 

Then we have the—the 300,000 or so cases already on the master 

docket, and it turns out those aren’t prioritized at all. And so you 

get these never-ending court dates that just get pushed back and 

back and back, as you referenced. 

What we are doing is going through those to make decisions as 

to which should come first in order to facilitate the movement of 

the—the detainee docket through the removal process and to facilitate the removal of criminal aliens from the country. It is one of 

52 

the reasons why we are going to continue to see those numbers go 

up. 

Ms. CHU. And why is this not amnesty and not a free pass? 

Ms. NAPOLITANO. I—I couldn’t hear you with the bell. Excuse 

me? 

Ms. CHU. Why is—is your effort toward prosecutorial discretion 

not an amnesty, as some claim, and not a free pass? 

Ms. NAPOLITANO. Oh, it is—it is clearly not. Yeah, it is what law 

enforcement does on a routine basis, which is to evaluate cases on 

their facts and make decisions as to which one merit the use of the 

government’s resources. 

Ms. CHU. Thank you for that. 

I’m going to turn toward a different topic and it is on TSA—TSA 

and the racial profiling issue. First, I’d like to ask unanimous consent that this letter from the Sikh Coalition can be entered into the 

record expressing their current concerns about the treatment by 

TSA. 

[The information referred to follows:] 

53 


70912A-1.eps
54 

Ms. CHU. Well, this year marked the 10th anniversary of 9/11, 

yet South Asians continue to be the victim of discrimination. And 

here in the Judiciary Committee I heard the anguished testimony 

of Sikh Americans who are pulled out of lines at airports just because they were wearing a turban. They were put in glass cages 

on display like some animal—pulled into rooms and interrogated 


70912A-2.eps
55 

for hours where even their babies were searched, yet no Sikh has 

ever committed a terrorist attack in the United States. 

But when Sikhs complain about this racial profiling, there have 

just been a—a lack of response from the TSA, and when guidelines 

are passed down many times they are ignored. Both TSA and the 

Department of Homeland Security claim to have a robust complaint 

and redress system. 

However, the experience for Sikh travelers have been woefully 

inadequate. Complaints oftentimes go unanswered for several 

months. And, in fact, there was an instance of one complaint that 

I looked at where their response took 6 months and it basically 

said you don’t have any documentation. 

Now, we met with Administrator Pistole and he said that they 

are going to have a review of the complaint system. I wanted to 

know what the status is of that review. We have waited for 3 

months for some kind of system to be put into place that—that 

would be more timely. 

Ms. NAPOLITANO. Yes, there is that review, and our Civil Rights 

and Civil Liberties group has been looking into the—that issue specifically. We have greatly reduced the time it takes to address complaints. We do have outreach to the Sikh and other communities. 

I would suggest, however, that, you know, we are very respectful 

of the Sikh community and—and work with them on a number of 

areas. The issue from a TSA security perspective is if there is 

bulky headgear or bulky clothing, the current technology cannot ascertain whether there may be something in it of an—that is explosive and they have to find some way to clear that passenger. 

Mr. SMITH. The gentlewoman’s time has expired. Thank you, Ms. 

Chu. 

The gentleman from Utah, Mr. Chaffetz? 

Mr. CHAFFETZ. Madam Secretary, thank you for being here. 

You said you disagreed with the GAO analysis of the percentage 

of the border that is secure. What percentage of the border do you 

think is secure? 

Ms. NAPOLITANO. Well, I think that having lived and worked on 

that border—— 

Mr. CHAFFETZ. I’m just looking for a number. I got to go very 

quickly. 

Ms. NAPOLITANO [continuing]. And having lived and worked on 

that border most of my—my life, I say it is as secure as it has ever 

been. But it is an ongoing project. 

Mr. CHAFFETZ. Like what—do you have a percentage? You don’t 

have a percentage? 

Ms. NAPOLITANO. Well, I would say it is very secure, Mr. 

Chaffetz. [Laughter.] 

Mr. CHAFFETZ. Okay. When did you first speak with Eric Holder 

about ‘‘Fast and Furious?’’ 

Ms. NAPOLITANO. I don’t believe I have ever spoken with Eric 

Holder about ‘‘Fast and Furious.’’ 

Mr. CHAFFETZ. How many—how many agents—since you have 

taken office, how many of your agents have been killed in the line 

of duty? 

Ms. NAPOLITANO. Oh, too many. 

Mr. CHAFFETZ. Do you know the—do you have any number? 

56 

Ms. NAPOLITANO. Well, I would—I would have to double-check 

but I would say at least 12. 

Mr. CHAFFETZ. How many guns from ‘‘Fast and Furious’’ operation were detected crossing the border? 

Ms. NAPOLITANO. I do not know. 

Mr. CHAFFETZ. How many guns from ‘‘Fast and Furious’’ were 

seized at the border? 

Ms. NAPOLITANO. I do not know. 

Mr. CHAFFETZ. Why is it that an operation that big and that important and that much in the news you don’t have the details of? 

Ms. NAPOLITANO. Well, Representative, as you know, it was an 

ATF operation. 

Mr. CHAFFETZ. In 2009, we know of two incidences where ICE 

ceased investigating at the request of the ATF. 

Are there any other instances where you were asked—your department, your agency, was asked not to pursue cases that potentially had a conflict with ‘‘Fast and Furious?’’ 

Ms. NAPOLITANO. In the wake of your investigation of ‘‘Fast and 

Furious’’ I have been made aware of those two ICE instances. I 

don’t think I have been made aware of any others. 

Mr. CHAFFETZ. Let me go to testimony that you had last week. 

Last week you were with Senator Grassley. You were asked about 

communication with Mr. Burke regarding ‘‘Operation Fast and Furious.’’ Question from Senator Grassley: ‘‘Have you had some communications?’’ 

Your response, and I will read it very quickly: ‘‘No, not about 

’Fast and Furious.’ When Agent Terry was killed it was December 

14th. I went to Arizona a few days thereafter to meet with FBI 

agents and assistant U.S. Attorneys who were actually going to 

look for the shooters. At the time, nobody had done forensics on the 

guns and ’Fast and Furious’ was not mentioned.’’ 

You went on to say, ‘‘But I wanted to be sure that those responsible for his death were brought to justice and that every DOJ resource was brought to bear on the topic. So I did have conversations and it would have been December of ’09—I think you meant 

December of ’10 about the murder of Agent Terry. But at the point 

in time, nobody knew about ‘‘Fast and Furious’’ so that is a different question.’’ 

And yet, we have documents that show, and this is a quote, ‘‘an 

urgent firearms trace requested by ATF agents on the scene to determine that these firearms came from ’Fast and Furious’.’’ 

Why is that you, as the Secretary of Homeland Security with one 

of your agents dead on the scene, did not get briefed about ‘‘Fast 

and Furious?’’ 

Ms. NAPOLITANO. I do not know. 

Mr. CHAFFETZ. How is that acceptable? Do you think that they 

withheld that information from you or is it your responsibility to 

actually find that information? 

Ms. NAPOLITANO. Well, I think the focus, Representative 

Chaffetz, is we had a dead agent, and a dead agent killed in a very 

rugged area of Arizona. And the number-one thing that was on my 

mind when I went out there was to make sure that the appropriate 

resources were being dedicated to that investigation. 

57 

Mr. CHAFFETZ. But you have guns from ‘‘Fast and Furious’’ that 

are found on the scene. You testified here just last week that there 

was no knowledge of ‘‘Fast and Furious’’ at the time—that the— 

you went out of your way to say that the forensics were not done. 

And yet, that is not true. That is not true. 

Ms. NAPOLITANO. I am not going to comment on that. I don’t 

know the document to which you refer. What I can say and what 

I think is fairly clear from the context is I was speaking to my 

knowledge at the time and I did not know about ‘‘Fast and Furious.’’ 

Mr. CHAFFETZ. Did you direct or was there any direction from 

your department and agency to allow the guns to go across the border that were involved in ‘‘Fast and Furious?’’ 

Ms. NAPOLITANO. ‘‘Fast and Furious’’ was an ATF operation. 

Mr. CHAFFETZ. So you—if your agents detected weapons going 

south across the border, you’d just let them go because it was an 

ATF operation? 

Ms. NAPOLITANO. As the two incidents you refer to—the two ICE 

incidents—I think, reveal, is when they ran gun—picked up guns 

and ran them or asked ATF to E-trace them, ATF came back and 

said these are part of a larger operation—stand down. 

After the second incident in which that occurred, that matter 

was taken by the ASACs to the assistant U.S. Attorney, which is 

common. That happens in the field. And the assistant U.S. Attorney said that the ATF operation would take precedence. 

Mr. CHAFFETZ. So was it the Department of Homeland Security’s 

policy to allow guns to go south into Mexico if they were involved 

in ‘‘Fast and Furious?’’ 

I’m looking for a yes or no. 

Ms. NAPOLITANO. No. 

Mr. CHAFFETZ. How is it that you can make the claim that the 

border is now more secure than ever and yet the Obama Administration purposely allows more—nearly 2,000 guns to be released, 

knowing that they are going to go to Mexico, with hundreds of people killed by those weapons—two dead U.S. agents—and yet you 

don’t even know if we have detected even one of those guns? 

In fact, on January 14th, you did detect somebody in New Mexico. There were eight guns found. They didn’t even run a trace on 

them and you let those guns go into Mexico. I find that absolutely 

stunning. 

And for you to have two dead agents and to have never had a 

conversation with Eric Holder about ‘‘Fast and Furious’’ and about 

this is totally unacceptable. Totally unacceptable. 

I’ll yield back. 

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

The gentleman from—— 

Ms. NAPOLITANO. Mr. Chairman, I know Representative Chaffetz 

has his opinion on this matter, as his—as the tone of his question 

reveals, but I simply would suggest that no one takes the deaths 

of agents more seriously than I, and also, that one of the reasons 

that we have not directly dealt with the attorney general on this 

is he very quickly and appropriately put this matter in the hands 

of the inspector general. 

Thank you. 

58 

Mr. SMITH. And the gentleman from Arkansas, Mr. Griffin? 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

Madam Secretary, I want to talk to you about the memo that has 

been raised earlier here today—the Morton memo from June, and 

the part of it, in particular, entitled, ‘‘Factors to Consider When 

Exercising Prosecutorial Discretion.’’ 

I—I am certainly familiar with the concept of prosecutorial discretion. In my experience, that has been more of a bottom-up discretion exercised by individual prosecutors. 

That having been said, when I look at the list of factors and the 

degree of specificity in that list, it strikes me that whether intended in this—to be this or not, it strikes me that it is a roadmap 

for retaining illegal immigrants. 

And it seems to me you could look at this list and meet a few 

of these categories and have a good chance at being pushed to the 

bottom of the prosecutorial list. That is particularly so when I— 

when I look at the draft memo that—that referred to the DREAM 

Act that came out of U.S. Citizenship and Immigration Services 

last year. 

And I understand we have had assurances that that draft memo 

was just a draft and parts of it were not included in the Morton 

memo. 

But my question is, looking at the extensive nature of the list of 

factors to consider, in your experience as a prosecutor have you 

ever seen or are you aware of other memos like this in the context 

of other crimes—for example, in the context of Federal crimes at 

the Department of Justice, or any other crime? 

Are you familiar with memos this extensive that lay out with 

this specificity what prosecutorial discretion is? Because I have 

never seen such detail and I would be interested to hear your view 

on that. 

Ms. NAPOLITANO. Well, the Department of Justice has the whole 

U.S. Attorneys manual, which is to guide the exercise of prosecutorial discretion and it is pretty thick. 

Mr. GRIFFIN. Sure. 

Ms. NAPOLITANO. So there’s a lot there. And also, Representative, 

there is a November, I think, 2000—I have to go back and check 

the date out—I want to say 19—it’s a Doris Meissner memo that 

lays out the exercise of prosecutorial discretion in immigration 

cases and specifies what a significant Federal interest is in that 

connection. That memo has in turn been cited by subsequent directors, either of INS or ICE, as recently as Julie Myers in the previous Administration. 

Mr. GRIFFIN. Sure. I would—I will say a couple of things. The 

U.S. Attorneys manual certainly lays out broadly for individual 

prosecutors guidance for them as they prosecute cases. This, I 

have—I have never seen and I would—I would like if you—if you 

can point to other guidance with this specificity, I would love to see 

it, particularly when these factors consider things like whether the 

person subject to prosecutions spouse suffers from an illness. That 

seems extraordinary when you are deciding whether to prosecute 

someone for a criminal act. 

Ms. NAPOLITANO. If I might explain. 

Mr. GRIFFIN. Yes. 

59 

Ms. NAPOLITANO. Here’s—here’s what can happen in the immigration context. You have a U.S. citizen spouse who is very ill and 

requires home care, and the issue is do you deport someone who 

has been taking care of that U.S. citizen spouse, and then put that 

spouse into much more expensive health care or do you allow the 

spouse to stay in country. 

Mr. GRIFFIN. Sure. Sure. 

Ms. NAPOLITANO. So those are the kinds of scenarios that need 

to be adjudicated or looked at on a case-by-case basis. 

Mr. GRIFFIN. If you take this list, you can—you can see a lot of— 

you can come up with a number of—of different individual circumstances. Certainly most prosecutors know, in my experience, 

the difference between prosecuting a petty thief and a terrorist and 

without the specificity here. 

I could make the case that certain aspects of the DREAM Act are 

implemented in here—not—not verbatim. But when you read all of 

the policy documents that relate to this stuff, it is—it is not difficult to see that this, in my opinion, and a lot of people in my— 

in the 2nd Congressional District of Arkansas—in our opinion, this 

looks like—more like a policy document. 

And let me say a couple things. I am running out of time here. 

If you look over at the—the ICE union issued a press release in response to this. These are union members. 

They said, quote, ‘‘Unable to pass its immigration agenda 

through legislation, the Administration is now implementing it 

through agency policy and bypassing Congress.’’ 

Now, this is a union agreeing with me, which doesn’t happen a 

lot. But on this particular instance, I would welcome your comments. 

Ms. NAPOLITANO. Well, I would say we are not bypassing the 

Congress, much as we would like the Congress to address these 

issues and, in fact, would invite that kind of engagement. What we 

are is suggesting or—or giving guidance to the field. 

By the way, I met yesterday in Chicago with all of the area directors for ICE in this area and—and we went through and talked 

about the operations that are going on and how they are going to 

impact public safety and how we want to guide our resources. And 

this is a group that is fully engaged. They get it. 

Mr. GRIFFIN. Let me—let me real quickly mention a couple of 

things. 

It—it seems to me that a lot of what we see in terms of state 

legislation in Arizona and Alabama and—and Florida and—and 

Virginia and other states that is passed to address immigration 

issues, it seems to me that that is simply the states’ reaction to 

what they see as the Federal Government’s failure to do its job on 

the border. Not just in this Administration—in Administration 

after Administration, including the one that I served in—the last 

one. 

And it seems to me if—if the Federal Government was truly securing the border, you would not have to deal with this—with a lot 

of these state laws that are percolating up to address what folks 

back in the states see as the Federal Government’s failure to do its 

job. And, again, it goes across Administration. But I have one quick 

question—unrelated question. 

60 

Mr. SMITH. The—— 

Mr. GRIFFIN. May I have a—— 

Ms. NAPOLITANO. Could I—may I—and I would like an ability to 

respond to that, if I might. 

Mr. SMITH. The—— 

Mr. GRIFFIN. Mr. Chairman, may I have a quick—— 

Mr. SMITH. The gentleman’s time has expired. Let—we will let 

the Secretary respond to your question. 

Ms. NAPOLITANO. Thank you, Mr. Chairman. 

I would suggest, first of all, that much of the information about 

the border that is distributed is not in fact accurate and one of the 

things I am trying to do is get—get the accurate information to the 

Congress and invite anyone from the Congress to come to the border. 

But, secondly, in my judgment, I think a number of the states 

are acting because the Congress has failed to act. 

Mr. SMITH. Thank you, Mr. Griffin. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized. 

Ms. JACKSON LEE. Secretary, thank you so very much for sharing 

your time with the Judiciary Committee this morning, recognizing 

the challenges of multi-jurisdiction for Homeland Security. 

I wanted to compliment you on one aspect of your very august 

resume and that is that you are a graduate of the University of 

Virginia Law School, one of the best law schools in the Nation. I 

happen to have passed through there a couple of years. And so I 

just wanted to make note about our fellow or common law school 

and I hope it served you well, as it did me. 

Let me raise some questions and repeat what I heard you say in 

your opening statement—that 90 percent of the deportations are 

priority deportations, as I understood your testimony. 

Ms. NAPOLITANO. For fiscal year ’11. 

Ms. JACKSON LEE. Fiscal year ’11. Fifty-five percent were criminal aliens. Is that—— 

Ms. NAPOLITANO. That’s true. 

Ms. JACKSON LEE [continuing]. About the right number? And it 

looks as if you said that two-thirds were without—were recent border crossers or repeat violators. Is that accurate? 

Ms. NAPOLITANO. Two-thirds of the remaining 45 percent fell 

within those categories. 

Ms. JACKSON LEE. All right. So I think if we look—and the reason why I want to clarify this because many of us who have been 

advocating for a comprehensive approach to immigration might 

take offense to the recitation by the Administration that they have 

done more than Bush, Clinton, et cetera, in deportations. 

We might take offense because we believe that it might have an 

impact on the people we believe could readily be, if you will, legalized or given some status through a comprehensive approach. 

But when you look at these numbers and you clarify them, many 

of us would not have a disagreement that this is the appropriate 

approach to take. 

So I just want to make sure these numbers—I want to recite 

them into the record. And I want to ask the question, is the Administration stepping away from its commitment to comprehensive immigration reform? 

61 

Ms. NAPOLITANO. Not at all. The President wants it. I would like 

to see it and stand ready to work with the Congress on a moment’s 

notice on it. 

Ms. JACKSON LEE. Before I go into my questions about comprehensive immigration reform, let me pose a question on our detention facilities, which you have overlapping jurisdiction. 

I have worked through my years on this Committee—in Judiciary—on trying to improve those Committees—excuse me, those facilities, particularly as it relates to women and children. 

We have made some progress. We passed legislation where there 

are facilities that address the question of women and children waiting for deportation, putting families together. It has come to our attention that we have had some incidences at the detention facilities 

impacting—I read an article. I read a news line on assaults by officers in those facilities. 

Are you aware of that, and if not, what kind of procedures are 

in place to protect those incarcerated who are non-criminal, who 

are waiting for action through the court or waiting for action in deportation? They include families and children, and particularly 

women. 

Ms. NAPOLITANO. Well, as I explained earlier, we have a zero tolerance policy for any of—any misconduct of that nature. There is 

a grievance process. There is a process by which we will immediately deal with officials who are—or officers who are found to 

have committed that kind of conduct. 

We are constantly auditing or—or reviewing, particularly the facilities that we contract with—we have reduced the number of contractors—but to improve the conditions of detention. 

Ms. JACKSON LEE. Well, could I ask you as—whether or not you 

are ensuring sufficient attentiveness and staffing to ensure the 

highest level of protection of those non-criminal—well, everybody 

should be protected but certainly those non-criminal families, children who are waiting on a civilian or a non-criminal processing. 

Ms. NAPOLITANO. I think that we are. 

Ms. JACKSON LEE. Okay. Let me proceed with—and I would ask 

if I could follow up after the fact either with your office directly 

or—on a specific questions in our region in Texas. But I want to 

go to the Morton Amendment that seems to have caused so much 

attention. 

And part of it is—delineates and—and let me say that I claim 

a—a good relationship with unions from—from all over the sectors 

and including the union that my colleague just mentioned. But we 

can have differences of opinion, and I appreciate prosecutorial discretion. It is used all the time. 

One aspect of his delineation, and I think it should be noted, the 

memo includes factors—the length of time a person has lived in the 

United States, the circumstances of arrival, a child that has come, 

military services by a person, the strength of ties and contributions 

to the community, the strength of ties to the home county conditions, and whether the person has a U.S. citizen or lawful permanent resident parent, child, or spouse. 

Do you think that is unreasonable? You have been an attorney 

general for the state. You’ve prosecuted. Do you think that is an 

unreasonable, if you will, framework, and ties the hands of prosVerDate Aug 31 2005 15:16 Jul 31, 2012 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 H:\WORK\FULL\102611\70912.000 HJUD1 PsN: DOUGA
62 

ecutors in making an appropriate decision on behalf of the people 

of the United States? 

Ms. NAPOLITANO. No. I think that is an important factor to consider given that the Congress gives us the resources only to remove 

about 400,000 a year. 

Mr. SMITH. The gentlewoman’s time has expired. 

Ms. JACKSON LEE. Mr. Chairman? Mr. Chairman? Mr. Chairman? The last gentleman—I had one last question. The last gentleman went on and on on the red light and you allowed that gentleman—— 

Mr. SMITH. Most Members have been granted an extra 30 to 45 

seconds—— 

Ms. JACKSON LEE. Well, I would—I would appreciate it—— 

Mr. SMITH [continuing]. And you—you reached that limit like all 

the others. But we will be happy for you to ask another question. 

Ms. JACKSON LEE. I thank you so very much, Mr. Chairman. 

There have been a number of legislative initiatives introduced by 

Members of Congress upwards of 175, 200 on comprehensive immigration reform. I want to defend the Congress in the sense that 

there is a body politic of those of us in the House and the Senate 

that desire comprehensive immigration reform. 

I would like to just point to one Save America Comprehensive 

bill—there was the Ortiz bill—but, in particular, access to legalization where you have a process for those who have been here to access legalization. 

Is that still a—a readily acceptable approach to look at that 

would answer some of the concerns of our colleagues that have 

been mentioned here? 

These are individuals that are working, paying taxes. Wouldn’t 

that be an aspect of what we might look at if we ever got to comprehensive immigration reform? 

Ms. NAPOLITANO. Yes, but with a clarification I think because 

these terms get—get confused. Access to legalization versus access 

to citizenship—that’s something I think that would have to—— 

Ms. JACKSON LEE. Two distinct points. 

Ms. NAPOLITANO. Yeah. 

Ms. JACKSON LEE. And so the legalization is giving them status 

while they pay fines and look at how they would process citizenship. Is that my understanding? 

Ms. NAPOLITANO. That—that is a—yes. That is a common use of 

the word ‘‘legalization.’’ 

Ms. JACKSON LEE. Still in discussion and still—— 

Mr. SMITH. The gentlewoman’s time has expired. 

Ms. JACKSON LEE. Thank you. 

Mr. SMITH. The gentleman from South Carolina, Mr. Gowdy, is 

recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Madam Secretary, you were both a state and Federal prosecutor. 

Did you ever approve or sanction investigations that allowed gun 

walking? 

Ms. NAPOLITANO. No. Not to my knowledge. 

Mr. GOWDY. Why would you not allow gun walking? 

Ms. NAPOLITANO. Well, I don’t think the—those matters or those 

kinds of investigations were ever presented to me. 

63 

Mr. GOWDY. But had they been presented to you, there is a reason you don’t allow contraband cash and guns to walk. As a former 

Federal and state prosecutor, can you give us those reasons? 

Ms. NAPOLITANO. Well, I—I don’t like to speculate. You know, 

every case is different. 

Mr. GOWDY. I am not asking you to speculate. 

Ms. NAPOLITANO. Every prosecutor makes different decisions and 

I don’t believe I was ever presented with that decision. 

Mr. GOWDY. So you can’t think of any reasons not to let contraband walk outside the care, custody, and dominion of a law enforcement officer? 

Ms. NAPOLITANO. Well, I think in the common context when 

you—in drug cases or firearms cases or whatever, when you are 

trying to work the case up, you know, from the low level to the 

higher levels and—and put somebody more—the more serious 

criminal off the streets, often times you let contraband get into the 

hands of others. 

Mr. GOWDY. And then you immediately interdict it and arrest 

them? I have done it—did it for 16 years, Madam Secretary. You 

never let drugs, cash or guns walk. You immediately interdict 

them. 

When do you learn of ‘‘Fast and Furious’’ for the first time? 

Ms. NAPOLITANO. I learned of it after the death of Agent Terry. 

Mr. GOWDY. And when did you learn that gun walking was part 

of ‘‘Fast and Furious?’’ 

Ms. NAPOLITANO. I would say sometime between his death and 

the early spring. 

Mr. GOWDY. To your knowledge, is every—has anyone ever communicated or did anyone communicate with Mexican authorities 

that guns were being allowed to cross our border into Mexico in 

contravention of their gun laws? 

Ms. NAPOLITANO. I can only speak for communications that I 

know of and I know of no such communications. 

Mr. GOWDY. When you were the United States Attorney in Arizona, did you make routine use of proffers, 5K1.1s and Rule 35s? 

Ms. NAPOLITANO. Sure. 

Mr. GOWDY. So there is no prohibition in the District of Arizona 

from using the same investigatory and prosecutorial tools that we 

use in every other district? 

Ms. NAPOLITANO. Not that I know of. 

Mr. GOWDY. So there is no reason that this, quote, ‘‘gun-trafficking case’’ could not have been handled like it is handled in all 

the other states? 

Ms. NAPOLITANO. I am not commenting to this one. I am not second-guessing ‘‘Fast and Furious.’’ It is under investigation now. 

Mr. GOWDY. Everyone else has second-guessed it. The attorney 

general has said there were problems. The President has said there 

were problems. 

So I am not asking you to say anything they haven’t already 

said. Do you agree there were problems with ‘‘Fast and Furious?’’ 

Ms. NAPOLITANO. I thought you were asking a much more specific question. But what I would say is obviously there were problems with ‘‘Fast and Furious.’’ 

Mr. GOWDY. What were those problems? 

64 

Ms. NAPOLITANO. Well, obviously, you don’t want to let guns with 

the kind of firepower that—that we now know were involved to get 

out of your—your control. 

Mr. GOWDY. Is firepower the only reason you don’t allow guns to 

walk? 

Ms. NAPOLITANO. Well, there is—there is a number of them. 

But—but if you want to cross-examine me about it—— 

Mr. GOWDY. I am not cross-examining you, Madam Secretary. I 

am asking you about ‘‘Fast and Furious.’’ I am asking you when 

you knew about it. 

Ms. NAPOLITANO. Well, what I am explaining to you—what I am 

explaining to you is that the case itself and the matter in which 

it was handled is under the jurisdiction of the Inspector General. 

But, obviously, from a—from a what-we-know perspective, yeah, 

there were—there were problems. Absolutely. 

Mr. GOWDY. When you were the United States Attorney in the 

District of Arizona did you ever have Title 3 cases? 

Ms. NAPOLITANO. T-3s? Yes. 

Mr. GOWDY. And those applications were approved by whom? 

Ms. NAPOLITANO. The court. 

Mr. GOWDY. And, ultimately, before they got to the court they 

had to be approved by the Department of Justice, correct? 

Ms. NAPOLITANO. Well, yes. 

Mr. GOWDY. So for the Department of Justice to contend in a 

Title 3 OCDETF case that they did not know about ‘‘Fast and Furious’’ would be disingenuous at best, correct? 

Ms. NAPOLITANO. I just am not going to comment to that. I don’t 

know those specifics. That was not within the Department of 

Homeland Security. 

Mr. GOWDY. Well, let me—I am asking you as a former prosecutor who did T-3 cases. The Department of Justice has to approve those applications, correct? 

Ms. NAPOLITANO. That is the procedure, yes. 

Mr. GOWDY. And in those applications is a narrative or summary 

of the case? 

Ms. NAPOLITANO. That is correct, yes. 

Mr. GOWDY. So someone at the Department of Justice had to 

know about ‘‘Fast and Furious’’ for the T-3 to ever have been approved, correct? 

Ms. NAPOLITANO. I—I just can’t comment. I don’t know that 

there was a T-3 approved in ‘‘Fast and Furious.’’ 

Mr. GOWDY. If there were a T-3 approved in ‘‘Fast and Furious’’, 

and there were, the Department of Justice would had to have 

known about it, correct? 

Ms. NAPOLITANO. I am going to leave that for your own investigation, sir. I am just not going to comment or go beyond what I know, 

and what I know is that after the death of Agent Terry, it—the 

‘‘Fast and Furious’’ label became apparent and we become knowledgeable about it. 

Obviously, there were problems with the operation. Obviously, it 

did not succeed and—and the Inspector General has that under investigation right now. From a law enforcement perspective—from 

a law enforcement perspective, yes, ‘‘Fast and Furious’’ is very 

troublesome. 

65 

Mr. GOWDY. Mr. Chairman, if I might, could have just an additional 30 seconds, which may be the custom this morning. 

Mr. SMITH. Without objection. 

Mr. GOWDY. Madam Secretary, my point on ‘‘Fast and Furious’’ 

is that there weren’t just problems. It was flawed from its inception. Any investigation that countenances gun walking across the 

border is flawed in its inception. 

So what I take offense at is when the attorney general and others on the other side of the aisle say that only when problems became apparent that—this investigation was a problem from the 

very beginning. I am going to ask you one final question because 

you mentioned twice this was an ATF investigation. 

It was, in fact, an OCDETF investigation, which means what, as 

a former U.S. Attorney? 

Ms. NAPOLITANO. Well, it means—and now you are into something I really don’t know anything about. I don’t know whether it 

is OCDETF, whether it was handled by an AUSA. I—I really don’t 

know that. 

Voice. Would the gentleman yield? 

Mr. GOWDY. If it were OCDETF, then there would be more than 

one Federal law enforcement agency involved, correct? That is by 

definition. 

Ms. NAPOLITANO. I just can’t comment to that. I just don’t know 

the answer to that. 

Mr. GOWDY. Okay. Fair enough. 

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

The gentleman from Georgia, Mr. Johnson, is recognized. 

Mr. JOHNSON. Thank you. 

And Secretary Napolitano, I think you have done an admiral job 

here this morning. It is always impressive to see a long table and 

a big room with a bunch of men, mostly seated, ready to question 

one solo witness down there and that witness has no control—just 

has to respond to the questions, sometimes the insinuations, sometimes which can border or which can be political in tone and totally 

inappropriate. 

But you have endured through this process. It is, in fact, part of 

your job, and I know it is not probably one of the most pleasant 

aspects of the job but you have acquitted yourself well before this 

Committee and I appreciate your service to the Nation. 

And I am not going to blame every problem that exists as far as 

immigration or, you know, Federal law enforcement—I am not 

going to blame that on you or make you responsible or appear to 

be responsible for that nor will I infer that the Obama Administration is immune to the normal problems that crop up in the course 

of the Federal Government’s dealings. I mean, you are going to 

have some mistakes made. You are going to have some bad choices 

made. You are going to have some good things done, too. Those 

things should be pointed out. 

But I will say that you weren’t the Secretary of Homeland Security in 1999. Department of Homeland Security itself wasn’t created until 3 years later. But back in 1999, we also saw Members 

of Congress express frustration with the INS about the issue of 

prosecutorial discretion. 

66 

*The Committee did not receive the op-ed referred to in time for it to be included in this printed record. 

As we have heard today when Chairman Smith led a bipartisan 

letter to Attorney General Janet Reno and the INS Commissioner 

Doris Meissner on that topic, he specifically urged the INS to use 

prosecutorial discretion to avoid unfairness and, quote, ‘‘and unjustifiable hardship,’’ end quote. 

The following year, according to Anthony Lewis’ op-ed in the 

United—excuse me—in the New York Times, Chairman Smith 

complained that the INS was spending its time on cases that cry 

out—that, quote, ‘‘on cases that cry out for compassion,’’ end quote, 

instead of focusing resources on, quote, ‘‘hardened criminals or 

hardened criminal aliens,’’ end quote. 

Now, I would like to enter both the letter and the op-ed* into the 

record. Is that permissible? 

Mr. SMITH. Without objection that will be made a part of the 

record. 

[The information referred to follows:] 

67 


70912B1-1.eps
68 


70912B1-2.eps
69 

Mr. SMITH. But I would also like to say to the gentleman from 

Georgia that he might want to put the contents of those letters in 

context. They were generally referring to legal immigrants or 

legal—and also was referring to not making general categories of 

individuals eligible but for going through on a case-by-case basis. 

So I wouldn’t want the gentleman to give a misimpression to 

anybody about the contents of those letters. 


70912B1-3.eps
70 

Mr. JOHNSON. Certainly, and no intent to do that, Mr. Chairman. 

And the letter and the article will speak for themselves and you 

have made—you have duly noted your position for the record. 

And I look at the immigration laws that were creating unfairness 

and injustice in 1999 and they look like the same—they look like 

the same laws that we are dealing with today. Small wonder that 

the need for prosecutorial discretion has not diminished during 

that period. 

You have spoken about the need for prosecutorial discretion in 

order to meet smart law enforcement priorities, but what about the 

cases that, quote, ‘‘cry out for compassion,’’ to use Chairman 

Smith’s words? 

Ms. NAPOLITANO. Well, thank you and thank you for your—your 

opening comments, and I would simply say that nothing in—in Director Morton’s memo suggests a categorical amnesty for any 

group. What it suggests is that there be a case-by-case evaluation 

of the individual circumstances in—there are very clear cases that 

require immediate deportation. 

There are very clear cases where we know the Nation’s public 

safety is involved. We have repeat violators. We have fugitives. But 

there are other cases that are different in context and kind, and 

part of having a—a reasonable immigration system is the ability to 

look at those. 

Mr. JOHNSON. Thank you. And I will yield the balance of my 

time. 

Mr. SMITH. Thank you, Mr. Johnson. 

We will now go to the gentlewoman from Florida, Mrs. Adams. 

Mrs. ADAMS. Thank you, Mr. Chair, and thank you, Secretary. 

I have been sitting listening with great interest as a law enforcement officer for so many years. I have to tell you I was interested 

in hearing what you said about Alabama and that you were part 

of that. And you have said over and over again, including this 

morning, that you don’t have the funds so you have to prioritize. 

So why not accept states’ help to be a force multiplier for your 

agency? 

Ms. NAPOLITANO. Well, we—we do in what—and—and let me tell 

you, the most important way that states help us right now and localities is through Secure Communities. That is an important tool, 

as we have now been able to expand it, to help us identify criminal 

aliens in the Nation’s jails and prisons. 

Mrs. ADAMS. And I listened as many of my colleagues asked 

questions and the one in particular, Representative Gohmert, had 

said something and I was watching your reaction, and I was surprised that you didn’t say if, in fact, that is a problem that we need 

to look into it and, you know, has something been compromised 

and is someone shopping a story. 

That concerns me that you didn’t step up and say, we will put 

national security over any type of politics and I will look into it. 

Will you commit to look into what Representative Gohmert brought 

up earlier? Yes or no. 

Ms. NAPOLITANO. Well, I apologize. I don’t remember specifically 

what he brought up, but, yes, if there are national security issues 

or important policy issues involved then, obviously, we would. 

71 

Mrs. ADAMS. Well, I want to make sure that we are doing our 

national security above politics at all times. I am really—— 

Ms. NAPOLITANO. Of course. 

Mrs. ADAMS.—I—I believe that wholeheartedly. 

Ms. NAPOLITANO. Of course. 

Mr. SMITH. Would the—— 

Mrs. ADAMS. I heard someone else say—— 

Mr. SMITH. Will the gentlewoman yield for just a moment? 

Mrs. ADAMS. I will in just a minute. I want to get through my 

questions. 

I heard someone else ask you about limbo indefinitely but, in 

fact, isn’t it true that if they are in a deportation status and their 

home country will not accept them that you release them back into 

the communities—— 

Ms. NAPOLITANO. Well, there—— 

Mrs. ADAMS [continuing]. Based on a ruling? 

Ms. NAPOLITANO. Yeah. There is a Supreme Court case called 

Zadvydas, which is a due process case, which, if—if the home country cannot accept or will not accept, gives us about a 6-month detention period. 

Mrs. ADAMS. And, in fact, some of these people have come back 

into the communities and committed heinous crimes—truly heinous—like Huang Chen, who killed a young woman, I believe, after 

China had refused to repatriatize him. Is that true? And if I remember reading this correctly, they still have not located her heart 

and lungs. 

So, I mean—and another one who killed a police officer in Ft. 

Myers after being released back into the community because their 

home country would not take them. 

You know, Section 243(d) of the Immigration Nationality Act requires a government to sanction countries that refuse to repatriate 

by suspending issuance of immigrant or nonimmigrant visas or 

both to nationals of the country until it takes the aliens back. 

You—now it is DHS—is supposed to order or give the country 

that refuses back—take back its aliens to the Secretary of State 

shall order that the visas to its citizens be suspended. 

How many have you recommended, under Section 243(d)? 

Ms. NAPOLITANO. We have not. What we have done is work with 

their countries that systemically refuse to accept their aliens back. 

Mrs. ADAMS. So you are telling you have not done any? 

Ms. NAPOLITANO. Not that I am aware of. 

Mrs. ADAMS. And so we could possibly have—— 

Ms. NAPOLITANO. I don’t know if we are talking about the same 

thing. I am having a—— 

Mrs. ADAMS. Well, it says that these are people who were pending removal but their home countries aren’t taking them. 

Ms. NAPOLITANO. All right. 

Mrs. ADAMS. You have the ability to recommend that they—you 

know, upon notification by the Attorney General now given by DHS 

that a country refuses to take back its aliens, the Secretary of 

State shall order that further visas to its citizens be suspended. 

I asked you how many times have you recommended and how 

many times has that happened. 

Ms. NAPOLITANO. I would have to look into that. 

72 

Mrs. ADAMS. It seems to me, Madam Secretary, that if you are 

not willing—you said just a minute ago you had not, now you are 

going to look into it. I have listened to that all morning long. 

I have been amazed at some of the answers given, knowing that 

you were coming before this Committee. You have got deaths of 

agents in ‘‘Fast and—‘‘Fast and Furious.’’ 

You have Iran planning to come across our borders because they 

see what, apparently, your agency does not—that we have an open 

border, and you have deaths of our citizens and law enforcement 

officers based on people being—not because their—their own home 

countries won’t take them but because they are being released into 

our country after committing crimes. 

And you are telling me you don’t know now—at first you said you 

hadn’t done it, now you don’t know if you had recommended that 

there be some kind of diplomacy pushed forward on these countries 

because—— 

Ms. NAPOLITANO. Well—— 

Mrs. ADAMS. Now, let me finish. 

Ms. NAPOLITANO. Excuse me, Representative. I just want to 

make sure we are being clear because in this Committee, I think 

it—I am trying to provide as accurate information as I can. 

Mrs. ADAMS. Correct. 

Ms. NAPOLITANO. What I am suggesting to you is that we have 

been working through the State Department with some of the 

countries that routinely refuse to accept illegal aliens back. But I 

don’t know for other diplomatic reasons whether the State Department has actually suspended visas. 

Mrs. ADAMS. Okay. Tell me this. Has DHS sought or obtained— 

has DHS sought or obtained any legal opinion that, for some reason, DHS need not comply with this duly enacted statute? 

Ms. NAPOLITANO. I am not sure. Again, that is kind of a ‘‘gotcha’’ 

question. What I am saying is that we are working and have been 

working with the State Department with some of the countries that 

routinely refuse to take back criminal aliens. 

Mrs. ADAMS. Madam Secretary, with due respect, that is not a 

‘‘got you.’’ These are statutes, and what I have heard from my 

Committee Members is that they have been asking you several 

times have you been complying with statutes or is there a statute 

that you can rely on for not complying to statute. 

So well, I will ask respectfully if you will get me that number— 

how many times. Since you do not have that number now—you 

said at first, no, you didn’t do it—now you don’t know—I will be 

more than happy for us to put it in writing so that there will be 

no misinformation or misunderstanding. And I yield back. 

Mr. SMITH. The gentlewoman’s time has expired. 

The gentleman from Puerto Rico, Mr. Pierluisi, recognized for his 

questions. 

Mr. PIERLUISI. Thank you, Mr. Chairman. 

Madam Secretary, I would first like to applaud you for crafting 

a common sense policy of exercising discretion over which immigration cases to prosecute. But I would now like to address the department’s drug interdiction work in the Caribbean region, particularly 

Puerto Rico. 

73 

Many experts, including the U.S. Attorney in Miami, have recognized that as the Federal Government curtails the flow of drugs 

across our Southwest border, drug trafficking organizations are increasingly turning to the Caribbean as an alternate means to get 

their products to end users in the—in the U.S. 

According to estimates provided to my office, approximately 80 

percent of the South American cocaine that arrives in Puerto Rico 

is subsequently transported to the U.S. mainland, and the 20 percent of cocaine that remains in Puerto Rico for local consumption 

is the primary cause of the island’s unacceptably high number of 

murders. 

I know you share my view that from the Federal Government’s 

perspective the violent death of an American citizen in Puerto Rico 

is of no less consequence than the violent death of any American 

citizen, be it in Florida, New York, or any other state. 

ICE has made several high-profile drug arrests on the island 

over the past year. But I remain concerned that ICE and other 

DHS component agencies are not devoting sufficient resources to 

address the surge in drug trafficking through Puerto Rico. 

I, thus, have a couple questions for you. First, how has DHS responded to the balloon effect I just described whereby drug traffickers are shifting part of their operations from the Southwest border to the Caribbean? Have you increased the personnel and assets 

you are deploying in the Caribbean? 

You know, I am a former AG in Puerto Rico and I know very well 

that this is like a moving target. You need to make sure that your 

resources are well placed. But you cannot just leave one area unprotected because they just go there. 

The second question—and I just want to know whether you have 

given additional attention and resources to Puerto Rico and the— 

and the Caribbean region. The second question I have is the following. It is related. 

Most of the drugs entering Puerto Rico come from the Dominican 

Republic these days. But there has been a surge as well entering 

the island from the east coast, particularly from the smaller Caribbean islands, and I understand that it takes the Coast Guard over 

an hour to respond to a suspected incoming drug shipment in the 

eastern part of the island and that CBP’s presence in the area is 

minimal. 

Again, what is the department doing in terms of CBP resources, 

Coast Guard resources? So, again, first question is in general—are 

you taking a look at our area and devoting additional resources as 

you should in terms of protecting our borders? This is the southernmost border, and secondly, eastern Caribbean—what is happening 

over there? Because I am concerned. 

Ms. NAPOLITANO. Yes, Representative. First, I think this is—I 

don’t want to make too big a point of this but I think it is important to note that the—that the fact that drug trafficking has moved 

into the littorals, into—into the area you suggest, I think, is evidence of the fact that the Southwest border is actually been fortified to a large degree so and—and now the traffickers are having 

to move. 

Mr. PIERLUISI. I agree. 

74 

Ms. NAPOLITANO. We are looking at that. We are looking at do 

we have the right amount of Coast Guard assets already deployed 

there—do we need to change the number and also the kinds of vessels we have. We have a BEST team now in Puerto Rico. 

We—we—we will evaluate and continue to evaluate whether we 

have the right number of agents associated with that. We are 

working with the OCDETF unit down there, among other things. 

But the answer to your question is, yes, I am aware of it, yes, I 

share your concern, and yes, we are looking at our deployments 

there. 

Mr. PIERLUISI. Okay. I have met with Attorney General Holder 

to go over the details of—of this situation in the past, and I would 

really appreciate it if you would give me the time to sit down with 

you and get to the specifics at some point in the near future. 

Ms. NAPOLITANO. We will make sure you get briefed. 

Mr. PIERLUISI. Thanks. 

Mr. SMITH. Thank you, Mr. Pierluisi. 

The gentleman from Arizona, Mr. Quayle, is recognized. 

Mr. QUAYLE. Thank you, Mr. Chairman, and thank you, Madam 

Secretary. 

I just want to get some clarification. Earlier you testified that Congress has only appropriated about $400,000—I mean, 400,000 

deportations. Is that based on the $23,000 number for—that you 

state is the cost for—after, you know, arrest, removal and deportation? 

Ms. NAPOLITANO. I would have to check. 

Mr. QUAYLE. So you—— 

Ms. NAPOLITANO. But it is a—it is a commonly used number. It 

has been the same for several years and it is the number referred 

to in the Appropriations bill. 

Mr. QUAYLE. It is the number—they—so the Appropriations bill 

actually has 400,000? 

Ms. NAPOLITANO. May not be in the bill but in some of the supporting materials in the Committee. 

Mr. QUAYLE. Because usually it is just the—the actual dollar 

amount, right? Okay. 

Ms. NAPOLITANO. Exactly right. So I think it is in some of the 

materials provided to the Committee. 

Mr. QUAYLE. Okay. Because I am trying to—earlier Mr. Coble 

was talking to you about the discrepancy between the ICE number 

and the number that you have used in—in testimony where you 

were saying it is $23,000 to $30,000 per actual person who is deported. And ICE basically said—they said it was about $12,500, and I 

appreciate that you are going to get us the information in where 

that discrepancy is. But when you were speaking earlier, you said 

kind of just off the top of your head that maybe the ICE one doesn’t 

actually include the amount that could be used in—for trial. Is that 

right? 

Ms. NAPOLITANO. Well, it may not include the Justice Department factors in there, and I will just have to look into that for you. 

Mr. QUAYLE. Okay. Because—because what I am trying to make 

it clear or get a clear understanding is that last week when you 

testified before the Senate Judiciary Committee, you stated that 

75 

the number was $23,000 to $30,000 and that was only for what 

DHS has and that excluded the Department of Justice. So is the $23,000 to $30,000 with Department of Justice or not? 

Ms. NAPOLITANO. We will get back to you on that. 

Mr. QUAYLE. Okay. 

Ms. NAPOLITANO. I just—I want to be very clear on that—— 

Mr. QUAYLE. Yeah. 

Ms. NAPOLITANO. Because obviously you all want to—want to 

make some points with those numbers. So you need to have the accurate numbers. 

Mr. QUAYLE. Yeah. We are—we are just trying to figure out exactly where the cost breakdown is—— 

Ms. NAPOLITANO. Indeed. 

Mr. QUAYLE [continuing]. And that—and that is because—I 

would also like, if you could, kind of—if that number came from internal computations of the actual breakdown in the costs—if you 

could tell us that. 

Is that actually from internal computations or did you get it from 

external sources? 

Ms. NAPOLITANO. I will find out for you. It may be—it could be 

a number of sources—— 

Mr. QUAYLE. Okay. 

Ms. NAPOLITANO [continuing]. Internal, OMB, Appropriations 

Committee. A lot of people have input into what is appropriated 

there. 

Mr. QUAYLE. Because when we were looking into this—because 

that number just kind of jumped out at me when—when it was— 

when it was stated, and we called over and they said that that 

number actually came from the Center for American Progress, 

which is a liberal think tank that has been pushing the—the high 

costs of deportations. 

And I would hope that DHS would be more reliant on their actual internal numbers rather than relying on an external think 

tank. So if you could get some clarification on that as well. 

Ms. NAPOLITANO. Right. But I think your point, and—and I think 

it is important for—for this Committee in particular—the Judiciary 

Committee—the immigration system crosses Federal agencies and, 

indeed, it crosses branches of government, and one of the things— 

because we have never addressed comprehensively immigration in 

the Congress, what gets lost in there is what the total cost of the 

system is. 

Gets divided between different Appropriations subcommittees. It 

gets divided, you know, some here the—what—what DOJ gets, 

what we get, et cetera. So one of things I think would be beneficial 

is to look at the system as a whole. 

Mr. QUAYLE. Well, I—I—I appreciate that, but I think the other 

thing that we are looking at is that as Administration officials and 

you as well have said that you don’t have the resources to be able 

to actively and pursue deportation just because the money is not 

really there and you said that there is only 400,000 people that you 

can actually deport. 

Ms. NAPOLITANO. Yeah, I understand the point you all—— 

Mr. QUAYLE. So I am just trying to say, you know, the breakdown of cost and make sure that we are actually doing this in an 

76 

efficient manner. I think that that is extraordinarily important, especially when we are in these tough budgetary times. 

Ms. NAPOLITANO. Indeed. 

Mr. QUAYLE. And switching topics, I was just wondering and this 

has nothing to do with any specific state law but as we are looking 

Federal Government and Federal budget restraints and the problems that the Federal Government is having to live within its 

means and we don’t have the resources, as some have said, to actually enforce our immigration laws. They are just making it more 

difficult. 

If certain states want to actually act as force multipliers, 

shouldn’t we be looking to them and—and actually embracing that 

to be able to enforce those immigration laws? 

Ms. NAPOLITANO. Well, I think it is important to recognize that 

what is involved here is who sets the immigration priorities for the 

country, and that is a Federal responsibility. 

Mr. QUAYLE. Absolutely. 

Ms. NAPOLITANO. Now—now, we do work with states and localities. The primary way we do it now is through Secure Communities. And as you have heard in earlier conversation from some of 

the members, we—we—we have been criticized by some communities that don’t want to participate in Secure Communities but I 

believe it is an essential tool moving forward to help us direct our 

prosecutorial resources. 

Mr. QUAYLE. Okay. Great. Thank you, Madam Secretary. I yield 

back. 

Mr. GALLEGLY. The gentleman from Florida, Mr. Deutch? 

Mr. DEUTCH. Thank you, Mr. Chairman. Madam Secretary, 

thank you for being here. Thanks for the fruitful exchange. 

I am concerned with the Department of Homeland Security’s formula that is used to determine the tier status of urban-area security initiatives for purposes of receiving funding. 

Specifically, I am extremely concerned with the application of the 

department’s formula to the Miami-Fort Lauderdale UASI in the 

state of Florida. 

The Miami-Fort Lauderdale UASI encompasses Palm Beach, 

Broward, Miami-Dade and Monroe counties, including the district 

I represent. 

The Miami-Fort Lauderdale UASI has more than 5.6 million 

residents living throughout—throughout these counties’ population 

with the highest level of density and diversity. 

There are more than a hundred municipalities, four international 

airports, large convention centers, numerous sports venues that 

host major sporting events and other critical utility and water infrastructure. 

It is also home to agriculture, banking, health care and other 

major industries. Moreover, the U.S. Southern Command Homestead Air Reserve Base, U.S. Coast Guard operations at Air Station 

Miami and Station Miami Beach, the National Access Point Center 

for the Americas, Turkey Point Nuclear Power Plant and the National Hurricane Center are located in the Miami-Fort Lauderdale 

UASI. 

It also covers more than 300 miles of coastline. An extensive 

coastline is very porous and is a risk for drug and arms trafficking 

77 

and other threats. Many large cruise ships dock at Port Everglades 

in Fort Lauderdale and the Port of Miami, both of which are located in the Miami-Fort Lauderdale UASI. 

In fact, Port Everglades is the home port of more cruise ships 

than any other port in the world. These cruise ships transport 

thousands of families and crew members in and out of the United 

States. 

In addition, Miami-Fort Lauderdale UASI is a gateway to South 

America and Central America for business, tourism and international trade. Millions of people and commerce cross the border 

through south Florida airports and ports. 

In fact, the Port of Miami, Madam Secretary, imports and exports more than 7.8 million tons of cargo annually to more than a 

hundred countries and 250 ports around the world, and Port Everglades, Florida ranks as the 12th leading container port in the Nation, exporting to and importing from more than 150 ports in 70 

different countries. 

The port is also the primary storage and distribution center for 

refined petroleum products for all of south Florida, supplying nearly one-fifth of entire state’s energy requirements, ranging from propane and gasoline and diesel and jet fuel. 

Yet, despite being major centers of economic security and tourism 

activity, the Miami-Fort Lauderdale UASI inexplicably does not 

qualify for Tier One funding out of the Department of Homeland 

Security’s current funding formula. 

Because the Miami-Fort Lauderdale UASI does not qualify for 

Tier One funding, it will have its funding for the upcoming year 

dramatically reduced, cut almost in half—reduced by $8 million 

from $17 million down to $9 million. 

The Department of Homeland Security’s funding formula is limited to accounting for legal and border crossings. This formula, 

therefore, does not include the more than 300 miles of coastline, 

four international airports and several cruise ship ports that are located within the Miami-Fort Lauderdale UASI. 

Several questions—shouldn’t these air and water entry points in 

the U.S. be considered with legal and border crossings by the department in its formula? 

And it is my understanding that the Secretary of Homeland Security has the discretion to expand the number of UASIs that are 

included in Tier One funding. In fact, there has been expansion recently. Currently, 11 UASIs are eligible for Tier One funding. 

And so for the reasons that I have laid out, for the safety and 

security of the millions of Americans who live in, do business in 

and visit south Florida, I would urge you in the strongest possible 

terms that you expand the Tier One funding to include Miami-Fort 

Lauderdale UASI. 

I would welcome any response now or following this Committee 

meeting. 

Ms. NAPOLITANO. Well, I would make two points. One is the—the 

reduction in Tier One identification was in part a reaction to 

Congress’s reduction—significant reduction in UASI funding overall, and the question presented to us and to me was whether we 

just dole out smaller amounts of money or do we continue to fully 

fund at prior year levels the Tier One locations. 

78 

We made the decision to—to—to restrict the number of locations 

so that we could fully fund the Tier Ones. 

Tier Ones are evaluated by risk and consequence. So national 

elements such as you described—coastline, nuclear reactors, critical 

infrastructure, economic impact—are all taken into account. 

As I recall, when we made the decision to cut back and then to 

identify Tier One, Tier Two, there was a clear delineation from an 

evaluative standpoint between the top 10, and 11 was virtually 

identical to 10, so top 11 and those below it, and that is—that is 

where Miami was. 

If—if Congress puts more money into UASI or goes back to prior 

year levels, we can reconsider that decision. 

Mr. DEUTCH. But—but the decision—the decision to expand Tier 

One is a decision made by your office. 

Ms. NAPOLITANO. That is correct. 

Mr. DEUTCH. And, in fact, Tier One has been expended in the 

past not just to include—— 

Ms. NAPOLITANO. When there was money, yes. 

Mr. DEUTCH. I understand, but the further—and I—I also understand the decisions Congress makes about funding, but the—it is 

the decision of the Department of Homeland Security to keep the 

Tier One funding the same and slash dramatically the funding to 

the Miami-Fort Lauderdale UASI. 

Ms. NAPOLITANO. I think that the reason, Representative, is because the evaluation of risk and consequence did not put the Miami 

UASI into the Tier One status. 

Mr. DEUTCH. I would urge you to reconsider the—and—and realize the—the risk and consequences involved in the decision. 

I yield back. Thank you, Madam. 

Mr. GALLEGLY. Time of the gentleman has expired. 

Mr. Issa? 

Mr. ISSA. I thank you, Mr. Chairman. 

Madam Secretary, back in February, I recall that you and I were 

on the phone and on another important issue, but it had to come 

to a premature end or come to an end because you had to attend 

a memorial service for Jamie Zapata. 

Do you remember that conversation? 

Ms. NAPOLITANO. I don’t remember the conversation. I do remember the murder of Jamie Zapata. 

Mr. ISSA. But I won’t forget it because it was sort of just at a 

point in which ‘‘Fast and Furious’’ obviously was becoming a major 

issue, both with Senator Grassley and with my Committee next 

door. 

Since that time, we have done a lot of work and I—I want to run 

you through some questions that concern me that fall within your 

lane. 

One of them is earlier today, you have repeatedly said that this 

was an ATF operation. Out of concern for the investigatory process 

and the prosecutions that are ongoing, we have—we have avoided 

interviewing Lane France. Do you know Lane? 

Ms. NAPOLITANO. I do not. 

Mr. ISSA. Do you know he works for you? He is an ICE agent 

that was part of the ‘‘Fast and Furious?’’ 

79 

Ms. NAPOLITANO. I know there was a field agent assigned to a 

task force—this is all things I have learned in the wake of your investigation—assigned to a task force for deconfliction purposes in 

the wake of the two ICE matters that were resolved by the AUSA 

to be within the context of ATF. 

Mr. ISSA. Well, it is—it is our judgment that he likely was very 

aware that there was gun walking going on, had that information. 

The question is, when you assign somebody like that, do you have 

a flow of information back to your department so that your—somebody in your department could have, should have or would have 

known about the operation? 

Ms. NAPOLITANO. Representative, we have hundreds of operations and—and thousands of agents on a daily basis. So to my 

knowledge, the fact that an agent was assigned somewhere about 

some matter would not necessarily come to—— 

Mr. ISSA. So—— 

Ms. NAPOLITANO [continuing]. Even—even to ICE headquarters, 

much less to DHS headquarters. 

Mr. ISSA. Okay. So I guess I am going to make an assumption 

here and that is that it is a fire and forget. You send—— 

Ms. NAPOLITANO. Pardon? 

Mr. ISSA [continuing]. You send these people over there. 

Ms. NAPOLITANO. I’m sorry. I couldn’t hear you. Sorry—— 

Mr. ISSA. Fire and forget, kind of like the missile that you just 

send off and it looks for heat, and if it hits something so be it, even 

if it is one of the friendly aircraft. 

Ms. NAPOLITANO. Oh, I don’t think that is a—— 

Mr. ISSA. Well, let’s go through this. 

Ms. NAPOLITANO. Accurate—— 

Mr. ISSA. You—you testified that in December, you became 

aware of ‘‘Fast and Furious.’’ 

Ms. NAPOLITANO. I said after the death of Agent Terry, yes. 

Mr. ISSA. Okay. And the details you became aware of basically 

after our investigation began, putting those details out. 

Ms. NAPOLITANO. I became aware, as I testified here and in other 

Committees, after the death of Agent Terry and—and knew some 

of the details and the name ‘‘Fast and Furious’’ certainly no later 

than March. 

Mr. ISSA. Okay. You testified here today that you—you haven’t 

talked to Eric Holder about this. 

Ms. NAPOLITANO. That is correct. 

Mr. ISSA. And he testified here that he only knew about it a few 

weeks before the interview he had in May here before this Committee and that he basically heard about it in the newspaper. 

So you have two dead agents that worked for you—one north of 

the border, one south of the border—and particularly in the case 

of Brian Terry, he was gunned down with two weapons from ‘‘Fast 

and Furious.’’ 

It has been months, and you tell me that you are not—you were 

not—you were not doing it because of an IG investigation. Well, 

let’s go through a few questions here, Madam Secretary. 

Ms. NAPOLITANO. Well, wait—wait just a minute. 

Mr. ISSA. No, no. No, wait—— 

Ms. NAPOLITANO. Wait just—wait just a minute. 

80 

Mr. ISSA. Let me finish my question. 

Ms. NAPOLITANO. Wait just a minute. 

Mr. ISSA. Madam Secretary, let me finish my question. 

Ms. NAPOLITANO. Go ahead, but that insinuation is not an accurate—— 

Mr. ISSA. Your—Madam Secretary, you—you—we could have the 

record read back. It would take a few minutes but—— 

Ms. NAPOLITANO. No, it is the insinuation I am objecting to. But 

go ahead and ask your question. 

Mr. ISSA. Look, the—you said because of an IG investigation you 

were not having further investigation, except you became aware of 

this in December. The IG investigation began in February. 

For 3 months, you had a dead Border Patrol agent and there was 

no IG investigation. What did you do between December and February to find out about ‘‘Fast and Furious’’ since a—and we can 

give you the documents, happily. We would get you the unredacted 

ones if we could. You get them from other parts of government. 

You—people on the ground knew those were ‘‘Fast and Furious’’ 

weapons found at the scene within hours. So it wasn’t something 

that wasn’t known. It was known at the time. 

The question is, a Homeland Security employee is gunned down, 

two weapons found at the scene part of ‘‘Fast and Furious.’’ Agents 

on the ground know that it is ‘‘Fast and Furious’’ before Brian 

Terry was laid to rest. 

Three months go by, and now—and today you told us about an 

IG investigation. My question is, first of all, do you have an IG and 

are you going to have your IG look into what happens when you 

segund agents and they are aware of gun running or, sorry, gun 

walking and do nothing? Is that appropriate for you to have your 

IG investigate? Yes or no, please. 

Ms. NAPOLITANO. Well, that—I think I—that question merits a 

lengthier response and I am glad to give it to you. 

Mr. ISSA. I will look—I will look forward to that in writing. But 

back to the basic question. You knew about—when Brian Terry 

was gunned down you knew, in fact, he was gunned down. 

People on the ground knew that he was gunned down with ‘‘Fast 

and Furious’’ weapons. Three months went by. What did you do between—between December and February to find out the details 

about his loss of life, and aren’t you outraged here today that you— 

if you were not informed that you were not informed that weapons 

allowed to walk into drug dealers’ cartels’ hands had killed one of 

your agents and during those 3 months they kept it from you? 

Ms. NAPOLITANO. I think your insinuation that—— 

Mr. ISSA. Ma’am, please answer the question. Don’t—don’t— 

please don’t talk in terms of insinuation. 

Ms. NAPOLITANO. Mr. Chairman, may—may I have the opportunity to answer, please? 

Mr. GALLEGLY. Madam Secretary, I—if you would try to succinctly answer his question, and then if you would like to elaborate 

the Chair will give you the time. 

Ms. NAPOLITANO. Well, what—let me make a suggestion, if I 

might, because he is—the representative is combining a lot of different things. If he would give me his questions I will be happy to 

respond in writing. 

81 

Mr. ISSA. Well, the one question I would like a succinct answer 

to is, you became aware that Brian Terry had been gunned down. 

People on the ground at that time knew they were ‘‘Fast and Furious’’ weapons. That was December. 

Between December and February of 2011, what did you do to discover further the conditions around his death, one? And then the 

second question, which was equally straightforward, aren’t you 

here today furious that the Justice Department—not ATF, the Justice Department—withheld from you the knowledge of ‘‘Fast and 

Furious’’ during this entire period of time, including one in which 

you had an agent dead? 

Ms. NAPOLITANO. I think we all should be outraged at the death 

of Agent Terry, and I think the first thing is to recognize who actually killed him, and that our number-one priority was to make sure 

the shooters were found—some had gone back into Mexico—and 

that the FBI was in charge of that investigation. 

Several days, as quickly as I could get to Arizona after his death, 

I met with the FBI, their agents in charge. I met with the AUSA 

who was going to conduct that investigation, and that was my 

number-one concern—that those responsible for the shooting death 

of Agent Terry were brought to justice, and that is what I was 

being kept apprised of. 

I will be—I would be happy to answer your other questions in 

writing. 

Mr. ISSA. Ma’am, we will be glad to follow up in writing, and I 

thank the Chairman for his indulgence. 

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

Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Thank you. 

Madam Secretary, we appreciate your presence today before the 

Committee, and as you can see, there is a broad range of questions 

that people can ask. 

Ms. NAPOLITANO. I have noticed that. 

Ms. SA ́ NCHEZ. And you are asked to be an expert on—on each 

and every one of them and to know information at the tip of your 

fingertips, which I know is not always possible. 

Earlier in—we appreciate the effort nonetheless—earlier, you 

mentioned the Secure Communities program and it is principally 

that program that I want to discuss with you. 

Studies by the Warren Institute showed that 93 percent of those 

identified through Secure Communities were Latino as of 2010, and 

given the scope of Secure Communities that number seems a bit— 

well, not a bit—it seems alarmingly high to me and hard to explain 

simply by saying, you know, with sample size or mathematical 

variance. 

Many of my constituents, for example, look at that number and 

conclude that the Secure Communities program may be inadvertently encouraging local law enforcement officials to racially profile 

against the Latino community. And I am not suggesting that this 

is overt encouragement or even conscious activity on behalf of local 

law enforcement but that number does really trouble me. 

I am wondering if, perhaps, you have a way to explain the 93 

percent figure and what steps DHS has taken or could possibly 

take to address the concerns that are raised. 

82 

Ms. NAPOLITANO. Right, and, again, we get into these numbers 

things and you have to look at the period evaluated and the sample 

and all that. 

But I think, more fundamentally, what we have done is through 

our Civil Rights and Civil Liberties unit established monitoring of 

the numbers—as we now have enough communities that are in the 

program that you are starting to get a substantial number—to 

monitor those numbers to see whether any are out of kilter with 

criminal prosecutions generally in an area and if statistically there 

are significant variances to have the ability to go in and actually 

look at A files or things of that nature to see what underlies the 

numbers. 

So—and this is intended to be a very transparent process. We do 

not intend to keep those numbers secret. They will be—they will 

be put or posted when they become available with appropriate explanation. 

Ms. SA ́ NCHEZ. Okay. But can you understand the concern that— 

that folks might hesitate to cooperate with local law enforcement 

if, you know, this perception, you know, backed by the initial figures, lead people to suspect that certain communities are, in fact, 

being racially profiled? 

Ms. NAPOLITANO. I can understand that concern. 

I can also understand that we have—we have Secure Communities now in enough jurisdictions to know how you work with Secure Communities, how police departments continue their relationship with the local community, how you use neighborhood policing 

in the right way with respect to Secure Communities. There are 

best practices that are developed that are being shared. 

So I understand the concern. What I am suggesting is that we 

need to continue to watch it, to watch the numbers, to do it in a 

statistically valid way, to be able to make those numbers transparent, and then to work with and share best practices among all 

of the jurisdictions now using the program. 

Ms. SA ́ NCHEZ. Okay. Following up on that, when U.S. citizens or 

legal residents are administratively arrested under the Secure 

Communities program, approximately how long are they detained 

for? 

Ms. NAPOLITANO. Well, under the new detainer form they cannot 

be detained longer than 48 hours. 

Ms. SA ́ NCHEZ. And during that process, what information are 

they given and are they allowed to contact counsel or their families 

during that process? 

Ms. NAPOLITANO. There is a—there is a whole—there is a new 

detainer form that we have put into place. It is in English. It is 

also one available in Spanish—I think other languages as well. It 

has numbers to call and all sorts of information on it. We could get 

you a copy of it. 

Ms. SA ́ NCHEZ. It would be helpful because, you know, part of the 

concern is that if legal permanent residents or citizens are somehow arrested under this or taken into custody, I should say, under 

this program that they would be able to communicate with family 

and—— 

Ms. NAPOLITANO. Well, they are not arrested, if I might, under 

Secure Communities. Secure Communities only comes into play 

83 

after an arrest and a booking, and what Secure Communities is is 

a data-sharing agreement between us and the FBI to check fingerprints not just against criminal databases but against immigration 

databases. 

So it is not like there is a Secure Communities task force out 

there arresting people. It is an after the—after the booking process. 

Ms. SA ́ NCHEZ. I understand. I misspoke, but my concern being 

that there could be legal permanent residents or citizens that are 

caught up in this and not—they don’t have an opportunity to contact family or counsel to sort of—— 

Ms. NAPOLITANO. No, that—I don’t think so and the reason is 

if—if—one of the things we run them through is IDENT and if 

there is an IDENT match and it shows that they are LPRs or citizens, we stop right there. So nothing else happens. 

Ms. SA ́ NCHEZ. So there is never an incidence in which—in which 

a legal permanent resident or a citizen could be accidentally deported because of a program in which they have been picked up? 

Ms. NAPOLITANO. Look, I—we deal with so many and, of course, 

it would be outrageous to have that kind of a situation. But what 

I am suggesting is—what I am suggesting—— 

Ms. SA ́ NCHEZ. And I would suggest that that has happened in the 

past. 

Ms. NAPOLITANO. Well, there have been instances in the past, 

but under this program once an IDENT match is made and the 

IDENT match reveals that this person is a citizen or—or a lawful 

permanent resident, that is it. It is done. We don’t put any detainer 

or anything on that individual. 

The local authority may hold them under whatever criminal law 

they may have violated but we will not be putting a detainer on 

them. 

Mr. GALLEGLY. Time of the gentlelady has expired. 

Mr. King? 

Mr. KING. Mr. Chairman, I would like to yield to the gentleman 

from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr.—thank you, Steve. Secretary, 

since you seemed a little fuzzy about Elibiary, let me make sure 

you leave here understanding. He was a featured speaker at the 

tribute to the great Islamic visionary, Ayatollah Khomeini, December 11th of 2004. 

You had him on your Countering Violent Extremism working 

group. You promoted him and from your own website, Secretary 

Napolitano swears in Homeland Security Advisory Council members. You swore him in and according to your testimony here today 

that is where he got the security clearance. 

He has written glowingly of Kotbi, on whom Osama bin Laden 

relied heavily for his barbarism justification. He has written 

against the trial and conviction of the Holy Land Foundation’s 

funding of terrorism. 

He has still remained in this Homeland Security Advisory Council and now he has accessed a week ago the state and local intelligence community database. 

He took documents that said ‘‘For Official Use Only’’ and 

shopped them with national media. It appears not only is our secuVerDate Aug 31 2005 15:16 Jul 31, 2012 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6601 H:\WORK\FULL\102611\70912.000 HJUD1 PsN: DOUGA
84 

rity being compromised—a secure system—but he is using it to 

help his friend politically, the President. 

I have got one question and it is not a ‘‘got you’’ question. There 

is nothing confusing about it. Before you came in here today, were 

you given information about Elibiary using the state and local intelligence committee the—community database and taking information he downloaded and shopping it to the media? 

Ms. NAPOLITANO. No. 

Mr. GOHMERT. If anyone from Homeland Security, your staff, advised anyone else that you were briefed last night they would be 

wrong. Is that correct? 

Ms. NAPOLITANO. Yes. 

Mr. GOHMERT. Thank you. 

Thank you, Mr. King. I yield back. 

Mr. KING. Thank you, and reclaiming my time. 

Thanks for your testimony, Madam Secretary. It just caught my 

attention when you responded to the gentleman from Texas, Mr. 

Poe, and this—the discussion about prosecutorial discretion, and 

you referenced Article II, Section 3 of the Constitution. 

Could you expand on that a little bit and about how Article II, 

Section 3, grants prosecutorial discretion? 

Ms. NAPOLITANO. Well, Article II, Section 3, says that the executive branch shall take care to faithfully execute the laws of the 

United States, and then when you read the U.S. Supreme Court 

authorities interpreting that Cheeney or Haney, whatever, and 

then Reno v. Arab American Anti-Discrimination League is the one 

that is specific to immigration, that is taken and put into the analysis of how you exercise discretion or the source of discretion—— 

Mr. KING. Well, thank you—— 

Ms. NAPOLITANO [continuing]. In the immigration context. 

Mr. KING. And I expected that would be your response. I just 

wanted to make the point that the Constitution doesn’t say so. You 

can make those references to those—those cases and I won’t take 

issue with that. But it does say, ‘‘He shall take care that the laws 

be faithfully executed.’’ 

I would also point out in the President—the President’s oath, ‘‘I 

will faithfully execute the office of president of the United States,’’ 

by extension that oath then applies to his officers that also take 

that oath. Would that not be correct? 

Ms. NAPOLITANO. That is true. 

Mr. KING. Okay. Then I just wanted to clarify that. It isn’t so 

much an issue. It is this—that when—when we see the litigation 

that is coming forward against Alabama, Arizona and it looks like 

any state that wants to pass immigration laws, the executive 

branch is litigating that through the courts. 

Now, if they are successful—if Eric Holder is successful in scrubbing these immigration laws from the states—that leaves then the 

Federal Government with the exclusive authority to enforce immigration law, does it not? 

Ms. NAPOLITANO. Well, again, as I’ve referenced several times, 

when we have partnerships like Secure Communities, that indeed 

helps us focus the exercise of that discretion. 

Mr. KING. Then let me restate my question. 

85 

If the attorney general is successful in the litigation that he has 

initiated on these states that have passed immigration laws, rather 

than the Secure Communities component of this or the 287(g) component of this, there would be then no latitude for states to pass 

immigration laws that they would enforce at their discretion. 

Ms. NAPOLITANO. There would be no latitude for states to—to 

make—pass laws that change Federal immigration policy. 

Mr. KING. I don’t think that is—I will disagree with that. But 

rather than dig down into that and burn up our time, I will just 

make this point—that it looks to me that the Administration is 

going down the path of shutting down all state legislation on immigration regardless of whether it goes beyond the mirroring the Federal law, which is what Arizona was designed to do, and that in 

the end it takes away the authority of the states to do that—to do 

immigration enforcement. 

I will take you also to some other data that Judge Poe addressed 

and that is the 34-and-a half-percent of foreign nationals that are 

occupying the jails on the border states. Are you familiar with a 

GAO study that is March 2011 criminal alien statistics and it addresses the—okay. Then I have it in my hand and I will reference 

it. 

In it, it has data in there that shows that we have 25,064 arrests 

of criminal aliens for homicide. 

Now, that covers some years, I will admit, but I would put that 

up against the losses that we have had on the southern border— 

25,064 in arrests for homicide generally means at least one grave, 

and that generally that are—those are Americans that are—that 

are killed at the hands of criminal aliens. 

And so when I heard you reference the 34,000 beds and that is 

all that Congress gives you to work with and you have to use prosecutorial discretion in order to utilize those beds to the best of your 

ability, what I don’t remember hearing—and I have been here 9 

years—is a request from the Administration, first, to look at all of 

the assets that are deployed on the southern border. 

It wouldn’t be just your department, obviously. I am going to 

suggest that that ranges in the area of $12 billion across that 

southern border—about $6 million a mile. I have yet to hear anybody put all those assets together and make the ask how many 

prison beds, how many prosecutors, how many judges—how do we 

actually get 100 percent enforcement on that border so we can 

begin to save some of these 25,064 lives. 

Have you put together any kind of a proposal that would actually 

rearrange the assets so that we could bring 100 percent enforcement rather than letting drug smugglers go because we don’t have 

the prosecutors or having to do, if it is something you are reluctant 

to do, this administrative amnesty that we call it and this discretion that you call it? Have you put that package together? 

Ms. NAPOLITANO. Well, I am going to take the—your—this in two 

bites. Number one, under our policy, somebody who is accused of 

homicide would be detained and would be a priority case and we 

would have created room on the master docket to move that case 

through and—and we would get that case after the person served 

his sentence for the—for the homicide. 

86 

Mr. KING. But they might released into society under Zadvydas, 

wouldn’t they? 

Ms. NAPOLITANO. Secondly, as I mentioned earlier, one of the 

things I think it is important for this Committee to look at is the 

entire immigration system from where we get investigation to prosecution to—to incarceration and then potentially—and then to the 

removal. 

And each one of those crosses different Federal agencies. So we 

have a comprehensive Southwest border strategy we use with ICE 

and CBP, to some degree CIS. We have moved ICE resources down 

to the border. We have moved detention beds down to the border. 

We have more resources at the Southwest border than have ever 

existed before. But that is not to say that the Congress in its own 

organization doesn’t have the ability to look at it overall. 

Mr. KING. What are the sum total of the assets and what is 

asked of this Congress to give you all the tools you need to give 

a hundred percent enforcement on the border? 

Mr. GALLEGLY. The time of the gentleman has expired but I will 

allow you to answer that question and then we will move on. 

Ms. NAPOLITANO. I think the best way to answer it is to say that 

we believe that with the asks we have made for—particularly for 

CBP at the border and—and the movement of ICE resources to the 

border that from the DHS perspective we have been able to greatly 

improve and secure that border. 

Mr. GALLEGLY. Time of the gentleman has expired. 

Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. Madam Secretary, 

welcome. The U.S. Border Patrol agents that are employees of the 

Department of Homeland Security and under your jurisdiction 

have tough, tough jobs. They are out there in the middle of the 

night trying to track down illegal aliens and drug smugglers, weapon smugglers and other contraband and so on. 

They are fired at, sometimes with weapons provided by other 

government agencies, sometimes wounded, sometimes killed. I wonder if you could comment on a court decision that came down in 

the case of the prosecution of one of your agents, a Jesus E. Diaz, 

Jr., who was sentenced last week to 2 years in prison for what 

could best be described—in fact, how the Washington Times described as improperly lifting the arms of a handcuffed 15-year-old 

drug smuggling suspect who was—that is a common technique 

used by law enforcement to force people to the ground to control 

them is to—is to lift their arms to force them down onto the ground 

if they are struggling, attempting to escape and so on. 

This was—this prosecution apparently took place at the behest 

of the Mexican government and was conducted by the same U.S. 

Attorney’s office that prosecuted two agents not under your watch 

but under the previous Administration for having shot at another 

drug smuggler. They were subsequently granted a pardon or had 

their sentences commuted by President Bush. You may recall those 

two agents. 

Are you familiar with this case involving Jesus Diaz? 

Ms. NAPOLITANO. I am not familiar with that decision. 

I can agree, however, with your beginning statements that our 

Border Patrol agents have very difficult jobs under very difficult 

87 

physical circumstances and they do. It is a 24/7 job and they are 

doing a remarkable job down at the border. 

Mr. GOODLATTE. This case has been pending for—for a few years 

now, and that seems a pretty serious sanction—two years in prison. Both your Inspector General’s office and the Office of Professional Responsibility at ICE cleared this agent of any wrongdoing 

but nonetheless he was subsequently prosecuted. 

The Law Enforcement Officers Advocates Council, an organization that obviously looks out for the interests of people who are 

doing these dangerous jobs, says that this was a totally improper 

prosecution of this individual, and you are not at all familiar with 

this? 

Ms. NAPOLITANO. I am not. 

Mr. GOODLATTE. Would you look into this and report back to the 

Committee and let us know what your thoughts are about this 

prosecution of one of your agents? 

Ms. NAPOLITANO. I would be happy to review the decision. 

Mr. GOODLATTE. I would appreciate that. 

Let me ask you this. If you are not familiar with this, how often 

do you meet with Attorney General Holder? 

Ms. NAPOLITANO. Oh, it varies. Not that often, really, in the context of things. 

Mr. GOODLATTE. Do you think it would be helpful, in light of the 

‘‘Fast and Furious’’ debacle, in light of prosecutions like this one, 

that that department of the government ought to be informing your 

department on a more regular basis of what they are undertaking 

so that you can be better informed and be outspoken in representing the interests of your agents and the responsibilities of 

your department? 

Ms. NAPOLITANO. Well, sir, I think I am outspoken in the interests of my agents and I do think there will be lots of lessons 

learned from ‘‘Fast and Furious.’’ 

Mr. GOODLATTE. But if you are not informed, if you don’t know 

about these incidents—— 

Ms. NAPOLITANO. Well—— 

Mr. GOODLATTE [continuing]. And if you don’t know about ‘‘Fast 

and Furious’’ and it went on for a long period of time and you are 

not informed, how can you be effective? 

Ms. NAPOLITANO. You know, what is the question? 

Mr. GOODLATTE. The question is, shouldn’t you have closer communications with the other principal law enforcement agency of the 

Federal Government so that you can know what is going on when 

your agents are being endangered by their allowing weapons to 

walk, when your agents are being prosecuted by their U.S. Attorneys? 

If pressure was put on our government by the Mexican government to do this prosecution of one of your agents, don’t you think 

you or somebody in your department should have been informed of 

that, either by the Secretary of State or by the Attorney General 

or somebody involved in this kind of cross-border politics where 

drug smugglers here—here for the second or third time? 

I am aware of a prosecution of a—of a deputy in Texas as well 

for attempting to stop drug smugglers. And yet, the people who are 

88 

getting prosecuted aren’t the drug smugglers in these cases—they 

are the people who are trying to enforce the law. 

Ms. NAPOLITANO. Well, as I said earlier, I think my number-one 

interest when we had a dead agent, Agent Terry, was to get the 

shooters—to get those who killed him, some of whom had fled into 

Mexico. And I think that was—— 

Mr. GOODLATTE. I think that is a—that is a—that is a laudable 

goal, Madam Secretary, but it was too late. The fact of the matter 

is there needs to be better communication so somebody can say, 

‘‘Whoa, this is a crazy idea. You are giving guns to drug smugglers 

that are going to come back and be used to kill my agents.’’ 

Ms. NAPOLITANO. And it—and, Representative, it—it will be, and 

I think this Committee has to avoid a rush to judgment here. But 

it seems to me that there will be lessons learned from this and 

there very well may be changes in the field as a result of this. 

The question you asked me, however, was how often I met with 

Attorney General Holder, and I was saying in the context of things, 

given his schedule, my schedule, the myriad responsibilities we 

each have, not that frequently. 

Mr. GOODLATTE. I hope that you will make an effort to—if I 

might have leeway to ask—— 

Mr. GALLEGLY. Without objection. 

Mr. GOODLATTE. One more question. 

You have indicated you will investigate this matter with regard 

to Jesus Diaz Jr., one of your Border Patrol agents, who is now facing 2 years in prison. 

If the prosecution in this case—if the conviction is not overturned 

on appeal, will you recommend to President Obama that he pardon 

Agent Diaz? If you find—if you find, as your Inspector General 

found and as the ICE Office of Professional Responsibility found, 

that there was no wrongdoing on his part—if you find that to be 

indeed the case, would you recommend to the President that he 

protect your agent? 

Ms. NAPOLITANO. You know, Representative, I don’t play whatifs. I will be happy to review the case and get back to you. 

Mr. GOODLATTE. Thank you. 

Mr. GALLEGLY. Time of the gentleman has expired. 

For the record, you—you made a commitment you would review 

this officer’s prosecution, and I would request—— 

Ms. NAPOLITANO. I said I would review the decision. 

Mr. GALLEGLY. The decision. You would—you would review the 

decision. Further, would you make a commitment to this Committee that you would respond in writing to Mr. Goodlatte and also 

to the Committee your—your assessment of your review? 

Ms. NAPOLITANO. We will get back to the Committee, yes, sir. 

Mr. GALLEGLY. I will take that as a yes. 

Ms. NAPOLITANO. We will get back to the Committee, yes, sir. 

Mr. GALLEGLY. Mr. Marino? 

Mr. MARINO. Good afternoon, Madam Secretary. 

First of all, I want to state that I have the utmost respect for 

the ICE agents. I am a former district attorney and U.S. Attorney, 

and I kind of look at us as colleagues, based on our experiences, 

and some of the best people that I have ever worked with, and they 

89 

extraordinary circumstances which they work under. So I do have 

a total respect for those individuals. 

You raised an issue concerning Zadvydas—the Zadvydas case, 

which I think in—— 

Ms. NAPOLITANO. Zadvydas? 

Mr. MARINO. Zadvydas. 

Ms. NAPOLITANO. Yeah. 

Mr. MARINO. Yeah. Excuse me. That within, what is it, 60 

days—— 

Ms. NAPOLITANO. Six—six months. 

Mr. MARINO. Six months—they would be released if nothing is 

done. Does that just pertain to removal from the country or if they 

have committed a crime—— 

Ms. NAPOLITANO. No. I think it is a—it is a due process removal 

case. 

Mr. MARINO. So if there is a crime committed by an individual 

who is here illegally—— 

Ms. NAPOLITANO. They still serve their sentence. 

Mr. MARINO. They still serve the sentence. 

Ms. NAPOLITANO. Yeah. 

Mr. MARINO. Do—do you see a problem with that 6-month time 

period whereby you may not, in conjunction with the U.S. Attorney’s office, have the time to get that prosecution completed? 

Ms. NAPOLITANO. Well, I think it—it—it—I think we have to be 

guided by the Supreme Court and when it says that you have to— 

to move, you have to move. I mean, you have to—you have to meet 

the timelines they set. 

Mr. MARINO. You stated earlier that Congress needed to act more 

so when it comes to immigrations. Could you explain to me what 

should Congress be doing pursuant to enforcement? 

Ms. NAPOLITANO. Well, one of the areas where I think Congress 

should—should look at enforcement is—is in terms of employers. 

Right now, it is very difficult to getting a felony case against employers. The fines are too low to be an—a deterrent. 

The employers are the magnet for much of the illegal immigration that goes on. So that, I think, is an area that deserves examination. 

Mr. MARINO. Good. And I prosecuted one of those cases as a— 

as a U.S. Attorney and we did, in fact, send hundreds of illegals 

back but we went after the employers. I would like to see more of 

that because you are right—it is the magnet. 

May I ask you a question and if you would care to share it with 

me? Do you support total amnesty? 

Ms. NAPOLITANO. No. 

Mr. MARINO. Okay. Now, you stated earlier—and I don’t play 

gotcha so I am just paraphrasing this—that we as prosecutors we 

have slight differences or variations on our discretion on why we 

prosecute a case and why we do not prosecute other cases. 

Do you—do you agree with me that there is just not a strict line 

to follow? 

Ms. NAPOLITANO. I think that is accurate. 

Mr. MARINO. I am going to go back to the factors for considering 

prosecutorial discretion and give me your input, give me your feeling on something like this when—there’s a list of them and I have 

90 

not seen a list like this as a prosecutor pursuant to other crimes, 

at least federally. And I have had the manuals on my desk and I 

didn’t memorize them by any stretch of the imagination, but I have 

gone through them. 

But do you have any problems with—I am just going to rattle off 

three or four, and you have heard one of these—when a person has 

a U.S. citizen permanent resident spouse, child or parent, whether 

the person is a primary caretaker of a person with a mental or 

physical disability, minor or seriously ill relative, whether the person or the person’s spouse is pregnant or nursing, and finally, 

whether the person or the person’s spouse suffers from severe mental or physical illness. 

I am not familiar with any other Federal crimes code that applies such strict parameters before enforcing the law. Can you help 

me out here? 

Ms. NAPOLITANO. Well, I—no, I think—here is what we are 

doing, and I think what Director Morton is correctly doing is saying, look, we want to prioritize those who are criminals, those who 

are fugitives, those who are repeat violators, those who we are capturing at the border, those who raise national security interest. 

And so in terms of planning our operations and where we want 

to put our manpower and the like, those are the things that really 

affect the public safety in our community. 

And by deploying Secure Communities, among other things, we 

are now seeing the composition of the numbers—of the numbers 

deported—change, and the composition is changing to reflect that 

we are deporting more criminals than ever before. 

Now, with respect to others who don’t fit in those priorities, they 

are not given amnesty. But there are some factors to take into consideration, and I think that the memo is merely an effort to elucidate some of those factors. 

Mr. MARINO. So you don’t see this as a—as a strict guideline. 

You are looking at this as all right, the prosecutor or the—is the 

prosecutor because he or she is qualified, they are put in there in 

that responsible position, they have—they do have that discretion? 

Ms. NAPOLITANO. That is right, and one of the things that we 

have done is speak with the lawyers—OPLA, the lawyers who handle these matters—and treat them like AUSAs who have discretion 

to look at a number of factors—— 

Mr. MARINO. And as was... 

Ms. NAPOLITANO [continuing]. Just as they would in—in any 

other kind of a criminal case. 

Mr. MARINO. And as was stated by the commissioner who participated in this, this isn’t an invitation to violate or ignore the law. 

Ms. NAPOLITANO. Not at all. It is—it is to enforce the law in a 

smart and effective way. 

Mr. MARINO. Yeah. I have just a couple other questions. I will 

get through these quickly. 

And I trust that you as a law enforcement colleague, as I said 

before I believe we have some type—something in common as being 

prosecutors—are going to keep politics out of when it comes to enforcing immigration laws. 

Ms. NAPOLITANO. That is correct. 

91 

Mr. MARINO. We just—we just—both sides, we have to keep the 

political arena very far from us, particularly when it comes to immigration. 

Ms. NAPOLITANO. That is right, and one of the things, you know, 

the—the insinuation of politics has—has been made by others, and 

I would remind the Committee—and I actually have the testimony—when I testified in the Senate in—in the spring of ’09, not 

too long after I had become the Secretary of Homeland Security— 

I said specifically that we were going to focus on criminal aliens 

and that we were going to prioritize within the immigration universe. 

And there was no question raised at that time as to whether that 

was proper or not. And that is really—we have done what I said 

we would do 2 years ago. 

Mr. MARINO. Mr. Chairman, do I have a couple minutes here? 

Mr. GALLEGLY. Would you please make it brief? 

Mr. MARINO. I will make it brief. 

Mr. GALLEGLY. A few minutes over so if you just have one—— 

Mr. MARINO. Okay. 

Mr. GALLEGLY [continuing]. Question. We have two more witnesses. It has been a long morning. 

Mr. MARINO. Okay. I have—I would never criticize you on a political aspect at all. I know how tough the job is. As a prosecutor, I 

am very familiar with it. 

Let’s switch gears here for a moment. Let’s talk about FEMA for 

1 second. We had quite a disaster in Pennsylvania where I am 

from, the 10th Congressional District. Many communities were destroyed. People just lost their homes. 

One of the questions I raised in Homeland Security is do you feel 

that FEMA has to or is there some way that we in Congress can 

give FEMA the authority to step into a state when FEMA feels it 

is necessary even before a governor ask for that help? 

Ms. NAPOLITANO. Well, in reality, that is what happens because 

one of the things we have been very successful at in terms of disaster management is when we see a disaster coming—a hurricane, 

flooding, a weather system like an Irene, for example—is to pre-deploy resources and pre-declare disaster before the disaster even 

hits. It allows us to put, as I like to say, speed and mass on target. 

Mr. MARINO. Right. Thank you. 

I yield back. 

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

At this point, I am going to yield myself 5 minutes in the—in the 

sequence that the Chairman had listed the speakers. 

I, first of all, apologize for coming in a little late. I have been in 

a classified briefing for an hour and a half this morning on some 

national security things or I would have been here. And I certainly 

want to associate myself with a couple of things that my good 

friend from Pennsylvania, Mr. Marino, alluded to. 

You have a very tough job. We all recognize that. And there are 

some very tough issues we are all dealing with, and I don’t want 

to make your job more complicated and I think when I finish here, 

you will accept the fact that I have not done that. 

When I walked in, Ms. Chu from California, my good friend and 

colleague, was talking about the number of precious dollars we 

92 

have to do the jobs that we have to deal with. As Chairman of the 

Immigration Subcommittee of this Committee, I have been working 

on immigration issues for 25 years and it seems to me that there 

are some issues that still boggle my mind how we are dealing with 

them. 

One, of course, is the issue, and there is not a simple answer to 

it and it can be spun any number of ways, but at a time when we 

have the millions and millions of people unemployed, that the 

President of the United States would put out an order to put on 

hold approximately 300,000 deportation—people who are in the actual deportation process—and there have been millions and millions of dollars prosecuting these. 

Ms. NAPOLITANO. Representative, that is not exactly what happened, but go ahead. 

Mr. GALLEGLY. Okay. Well, for the sake of—of—of brevity here 

I will—I will let you have some time and set the record straight. 

But however many they are we will set aside for a second. Are 

you aware of the earned income tax credit program or refunds? 

Ms. NAPOLITANO. Yes. 

Mr. GALLEGLY. These are where individuals earn some money 

but not quite enough money to pay any income tax—— 

Ms. NAPOLITANO. It’s a refundable tax credit. 

Mr. GALLEGLY [continuing]. And then at the end of the year they 

are eligible for a tax refund even though they paid no taxes. 

Are you also aware that last year there were 2.3 million people 

illegally working in this country? This is per the Obama Treasury 

Department’s records—2.3 million people illegally working in this 

country that received over $4 billion in tax refunds, and this is a 

4 percent increase over what illegal immigrants were receiving in 

tax refunds after paying no taxes over the past 5 years. 

Now, this is a matter of the record. I am not going to ask you 

to respond to that. However, you may or may not know the answer 

to this and if you don’t know the answer to this I would like to see 

if you could get me the answer. 

Of the 300,000 or whatever this magic number is of people that 

are in the process of being deported, how many of those have received earned—these tax refunds? And also, of those that have received tax refunds, how many have any form of a criminal record? 

Ms. NAPOLITANO. Well, first of all, I don’t know the answer right 

off the top of my head, as you might anticipate, but the case-bycase review of the—of the cases ongoing is designed to make sure 

that we are moving priority cases through the detained docket to 

removal from the country. Those that have a criminal record are 

those that fit within the priority category. 

So what we are trying to do is clear the docket. Remember, the 

docket is setting cases in 2014 and 2015. So this is a docket that 

is really backlogged. 

Mr. GALLEGLY. Oh, I know—I know. Some of these cases that 

have been pending for five, 6 years—— 

Ms. NAPOLITANO. Indeed. 

Mr. GALLEGLY [continuing]. With just one—one—— 

Ms. NAPOLITANO. Continuance after another—— 

Mr. GALLEGLY. Just one extension or continuance after another—— 

93 

Ms. NAPOLITANO. That is—— 

Mr. GALLEGLY [continuing]. Some arbitrarily and capriciously, in 

my opinion—— 

Ms. NAPOLITANO. Right. 

Mr. GALLEGLY. With the hopes that one day amnesty will solve 

all these problems and these cases will disappear. 

Ms. NAPOLITANO. Well, I think what we are trying to do is 

reprioritize the cases that are in the system so that the most serious ones go first. 

Mr. GALLEGLY. Well, this gets back to the issue of—of what constitutes criminal and this—this—this prioritization is important. Is 

three drunk-driving arrests considered a criminal? Is it robbery? Is 

it assault? Is it burglary? 

How—how does that—you know, and maybe you could just give 

us some kind of a written assessment of how these priorities work. 

Because sometime when someone has been arrested at three 

drunk-driving arrests and then on the fourth time they kill somebody, we have case after case after case of these where they are 

still living and they have been in the deportation process. 

Ms. NAPOLITANO. I—I—I agree with you. I think those—those 

kinds of cases are the ones we want to put into detention and removal. I will be happy to describe for you level one, two and three 

and how that works. 

Mr. GALLEGLY. That—you want to just send that to the Committee in writing for me or you want to try to do it now? 

Ms. NAPOLITANO. We can—we can provide—I think we have provided a briefing to staff already but we will get you something. 

Mr. GALLEGLY. And if you would, for my benefit and the Committee’s benefit, send me an assessment—it may take a little time to 

put these together—of—of the number of people that have received 

income tax—this $4-plus billion in the last year—how many of 

those individuals have actually had a criminal record. To me, a 

criminal record is being put in jail for drunk driving. 

Ms. NAPOLITANO. Okay. 

Mr. GALLEGLY. Okay. 

Ms. NAPOLITANO. And if you could supply my staff with the 

Treasury report to which you are referring so that we can take a 

look at it, that would be helpful. 

Mr. GALLEGLY. We will be happy to get that to the appropriate 

person on your staff. 

I do appreciate the job you are doing. Don’t always agree with 

everything you are doing but I do understand it is complicated and 

I hope that we can work together for the sake of the country. 

Ms. NAPOLITANO. Indeed. 

Mr. GALLEGLY. Mr. Jordan? 

Mr. FORBES. Well, I think you meant me. 

But Madam Secretary, good news is I am last up for the—— 

Mr. GALLEGLY. Randy Forbes, I am sorry. I didn’t mean to slander you. 

Mr. FORBES. That is—that is okay. That is okay. [Laughter.] 

I wouldn’t mind being Jim Jordan. 

Madam Secretary, I want to just continue, if you don’t mind, 

with the discussion of what some people call administrative amVerDate Aug 31 2005 15:16 Jul 31, 2012 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6601 H:\WORK\FULL\102611\70912.000 HJUD1 PsN: DOUGA
94 

nesty and I realize you call prosecutorial discretion and, as a courtesy, I will call it prosecutorial discretion. 

We talked about the fact you have limited resources but the reality is every prosecutor has limited resources. So that doesn’t justify bad policies if they happen to be bad policies. 

I want to come back on some of the items in the memo and kind 

of elaborate on what Mr. Marino was talking about a little bit. 

Do you know of any situation where the violation of law a prosecutor would be correct in discriminating by prosecuting more people who were uneducated or had less education than those who had 

more education? 

Ms. NAPOLITANO. Educational attainment in and of itself is—is— 

in an isolated—as an isolated factor is—is not a prosecutorial issue 

in that sense. 

Mr. FORBES. You talked about we should be prosecuting more 

employers perhaps, I think. Is that a fair representation? 

Ms. NAPOLITANO. That is—and auditing more and debarring 

more and finding more. That is correct. 

Mr. FORBES. Would there be a situation where you think a prosecutor would ever be justified in discriminating against employers 

who had less education by prosecuting them more than by those 

who had more education? 

Ms. NAPOLITANO. I think the things we look at are employers 

who are intentionally and repeatedly violating immigration law. 

Mr. FORBES. That is not my question. Madam Secretary, my 

question—— 

Ms. NAPOLITANO. It is an impossible question to answer. 

Mr. FORBES. Well, the reason I say it is one of the—— 

Ms. NAPOLITANO. Yeah. You obviously have a situation in mind. 

Mr. FORBES. I do. 

Ms. NAPOLITANO. Why don’t you just give me the situation? 

Mr. FORBES. Well, one of the criteria you have in your prosecutorial discretion is to look at persons who are pursuing education 

in the United States. 

So, effectively, by those people who couldn’t afford to pursue that 

education, who might be undereducated or less educated, you are 

having a discrimination against them. The second—— 

Ms. NAPOLITANO. Well, I would—I would disagree and that is 

why I say it is important—— 

Mr. FORBES. Well, I am just looking—— 

Ms. NAPOLITANO [continuing]. It is important to look at factors 

all together in context. 

Mr. FORBES. I am looking at the wording, Madam Secretary. 

Ms. NAPOLITANO. That is what a case-by-case review means. 

Mr. FORBES. The other thing I would like to look at is this. You 

have got one of your criteria persons whose spouse are pregnant. 

Would there ever be another situation where someone who had violated the law you would think a prosecutor could prosecute more 

individuals who were unmarried or perhaps in same-sex marriages 

and therefore didn’t have a spouse that was pregnant? 

Is there ever a situation where that would be justified? 

Ms. NAPOLITANO. I think the prosecutorial discretion memo 

speaks for itself. It lists the categories. There are things that can 

95 

be taken into context by trained agents, by trained attorneys, looking at all of the—all of the facts. 

Mr. FORBES. Madam Secretary, I am simply asking you is there 

any other law to which you would allow a prosecutor to say, if you 

have a pregnant spouse we are going to be less likely to prosecute 

you than if you don’t have a pregnant spouse? 

Ms. NAPOLITANO. You know, I think in being a former U.S. Attorney and attorney general and very familiar with county attorneys 

and district attorneys there are always situations where humane 

situations are taken into account. 

Mr. FORBES. Madam Secretary, are you telling me that if you 

have an employer that you want to go after that you think a prosecutor should be able to prosecute those individuals who are unmarried or perhaps do not have spouses that are pregnant more 

than those who have a pregnant spouse? 

Ms. NAPOLITANO. You know, Representative, I just can’t answer 

the question as you phrased it. 

Mr. FORBES. Madam Secretary, in all due respect to you, these 

are your policies that you have written or approved from your department, and what you have said in here is a prosecutor can discriminate in favor of people who have more education when you are 

talking about whether you are going to prosecute them for being 

in here illegally. 

But there is no crime anywhere where you would justify prosecutors saying, we are going to prosecute people with less education 

more than we do with more education. So it is a bad policy. 

There is no policy—there is no situation where you would look 

at an employer and say, well, if you have got a pregnant spouse 

we are not going to prosecute you for violating the immigration 

laws less than we prosecute somebody who might not have a pregnant spouse. 

And then when you look at the situation on somebody who has 

a spouse that has an illness, there is no situation that you can suggest to me where any agency in the country has said that you 

ought to be able to have prosecutorial discretion on somebody that 

has violated the law in case they have a spouse that might have 

an illness. 

And what I am going to ask you is give me the examples, if you 

can, of other such situations where prosecutorial discretion is 

there. 

Ms. NAPOLITANO. Prosecutorial discretion is always there. There 

are always factors that are taken into account. And if I may finish, 

I think the way you have posited the question is determined to 

reach a particular result, and I just cannot answer it the way you 

have posited it. 

Mr. FORBES. Madam Secretary, in all due respect, you just don’t 

want to answer the question because they are the policies you 

wrote. So, what I am going to ask you is this, the same way the 

Chairman did. 

Will you give me in writing a single situation where any agency 

in this country has given to their prosecutors a situation where 

they suggest that they use prosecutorial discretion and they use 

one of these criteria—either, one, you should prosecute less if somebody has an education, or that you should prosecute them less if 

96 

their spouse—they have a spouse that is pregnant, or you should 

prosecute them less if they have a spouse who is ill? 

You can’t say that here, I understand, because you don’t know 

it, and the reason you don’t know it is because it doesn’t exist. But 

if you would go back and tell me, in writing, if it exists anywhere 

in the country. And Madam Secretary, it doesn’t. And if it doesn’t, 

then you ought to look at your policies and say maybe your policies 

aren’t appropriate. 

Mr. Chairman, with that, I yield back. 

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

We have no further requests. It has been a long morning. You 

have been under the gun for almost three and a half hours now. 

I thank you for your testimony and I would like to thank all the 

Members that participated. I will allow, without objection, all 

Members to have 5 days to submit additional written questions for 

the witness or additional material for the record. 

And with that, the full Committee stands adjourned. 

Ms. NAPOLITANO. Thank you, Mr. Chairman. 

[Whereupon, at 1:16 p.m., the Committee was adjourned.] 

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