U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

75–154 PDF 2012

DEPARTMENT OF HOMELAND SECURITY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JULY 19, 2012 

Serial No. 112–136 

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 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

JULY 19, 2012 

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 

WITNESS 

The Honorable Janet Napolitano, Secretary, U.S. Department of Homeland 

Security 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 4 

Material submitted by the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Member, Committee on the Judiciary ......................................................................................................................... 42

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 80

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary ......................................................................................................................... 246 

Response to Questions for the Record from the Honorable Janet Napolitano, 

Secretary, U.S. Department of Homeland Security .......................................... 253 

(1) 

DEPARTMENT OF HOMELAND SECURITY 

THURSDAY, JULY 19, 2012 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to call, at 10:13 a.m., in room 

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

Present: Representatives Smith, Sensenbrenner, Coble, Gallegly, 

Goodlatte, Lungren, Chabot, Forbes, King, Franks, Gohmert, Poe, 

Chaffetz, Gowdy, Ross, Adams, Quayle, Amodei, Conyers, Nadler, 

Scott, Watt, Lofgren, Waters, Pierluisi, and Chu. 

Staff Present: (Majority) Richard Hertling, Staff Director and 

Chief Counsel; Travis Norton, Counsel; Holt Lackey, Counsel; 

David Lazar, Clerk; (Minority) Perry Apelbaum, Staff Director and 

Chief Counsel; Danielle Brown, Counsel; David Shahoulian, Counsel; and Tom Jawetz, Counsel. 

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

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

We welcome everyone to this hearing, and especially Secretary 

Napolitano, and appreciate her giving us the time today. 

I will recognize myself for an opening statement, and then the 

Ranking Member. 

Welcome, again, Secretary Napolitano, to today’s oversight hearing of the Department of Homeland Security. DHS is responsible 

for the enforcement of America’s immigration laws. But under the 

current Administration, the department seems instead to work to 

undermine those laws, and it has actively worked to make sure 

that many others do not enforce our immigration laws either. 

Obama administration officials recently decided to grant amnesty 

under the guise of ‘‘deferred action,’’ and also work authorization, 

to potentially millions of illegal immigrants. This unprecedented 

decision ignores the rule of law that is the foundation of our democracy. In exercising its responsibility to see that the laws are faithfully executed, the Executive Branch does have the power of prosecutorial discretion on a case-by-case basis, but this authority cannot be used to systematically dismantle our immigration laws. 

More than a century and a half ago, the Supreme Court noted 

that the President’s constitutional power to enforce our laws does 

not imply that they can forbid their execution. President Obama 

understood this when he admitted last year that, quote, ‘‘There are 

2 

laws on the books that Congress has passed’’ so the Administration 

cannot ‘‘just suspend deportations through executive order.’’ 

But President Obama has broken this promise to the American 

people. This Administration’s decision to grant administrative amnesty on a mass scale ignores the rule of law and the separation 

of powers. 

The Administration’s amnesty agenda is a win for illegal immigrants, but a loss for Americans. When illegal immigrants are allowed to live and work in the U.S., unemployed American workers 

have to compete with illegal immigrants for scarce jobs. With 23 

million Americans unemployed or underemployed, this amnesty 

only makes their lives harder. 

The Obama administration’s amnesty is also a magnet for fraud. 

Many illegal immigrants will falsely claim that they came to the 

U.S. as children, and this Administration refuses to take the steps 

necessary to check whether their claims are true or not. 

Time and again, the Department of Homeland Security has gone 

out of its way to avoid the enforcement of immigration laws. The 

Department of Homeland Security’s policy of non-enforcement will 

continue to cost innocent Americans their jobs. 

As Secretary of Homeland Security, Madam Secretary, you, like 

all Americans, also must be extremely concerned about the recent 

disclosure of national secrets. The methods and sources of intelligence we use to protect homeland security must be kept strictly 

secret. When these secrets leak and become public knowledge, 

American lives are threatened. 

Recent damaging leaks include operational details of the Bin 

Laden raid, specifics about how we conduct cybersecurity, and information about drone strikes. Because of these leaks, our enemies 

now know how we will hunt them, which will only make the hunt 

more difficult. 

Homeland security depends on our ability to keep secrets from 

those who would attack our homeland. When these secrets leak 

and become public knowledge, our people and our national interests are put in jeopardy. When our enemies know our secrets, 

American lives are in danger. 

The government’s ability to keep national security secrets depends on identifying the causes of the recent leaks and putting a 

stop to them. That is why I have asked to interview senior officials 

who may have information on how these secrets become public. 

The Department of Homeland Security has a responsibility to 

deter and prevent terrorists from attacking the United States. To 

do this, we must protect the details of our intelligence-gathering. 

That concludes my opening statement. And the gentleman from 

Michigan, the Ranking Member, is recognized for his. 

Mr. CONYERS. Thank you, Mr. Chairman. 

And welcome, Madam Secretary. 

I want to remind you, I meant to do it off the record, but I want 

to remind the Chairman that his opinion is his own, but the facts 

are not, the ones that he controls. And I am keeping a record, I 

want to announce to him, of all of the things that I think are serious misstatements of fact, which I will be taking either to the floor 

or publishing otherwise. I think I mentioned this to you before—— 

Mr. SMITH. I am sure you did. 

3 

Mr. CONYERS. So I think you have given me some work to do already. 

And I would like to say to all the Members of this Committee, 

I want this to be a civil hearing in which we exchange views, make 

criticisms, voice opinions. But I would like it to be done in keeping 

with the reputation of the House Judiciary Committee, so that we 

don’t get out of control. And I am sure the Chairman will agree 

with me on that. 

I welcome you, Madam Secretary. And I had some issues about 

some security incidents in Detroit. And I would like not to take up 

our time talking about them here, but I would be looking forward 

to it, because Detroit, of course, the Detroit-Windsor Tunnel, is the 

largest commercial border crossing in North America, and these 

threats are of concern both to our country and to Canada as well. 

Now, the other couple of things that I wanted to commend you 

on is the fact that we have improved border security. And having 

listened to some of my colleagues, I thought that the border security on the southern end of our country was in bad shape. But border security is more secure than it has ever been before, I think 

due to increased border enforcement efforts. 

And unauthorized border crossings are at a 40-year low. We 

haven’t seen border apprehension numbers this low since 1972. I 

commend Homeland Security for that. 

And if there are other insights that you would like to share with 

us today, and we have time, I would like to do it. If not, I would 

like to get more information from you or your staff. 

At the same time, immigration removals have been at an all time 

high, just short of 400,000 last year. And what is more impressive 

is the makeup of the numbers. 

For the first time ever, persons with criminal convictions made 

up more than half of those removals, and more than 90 percent 

met the Administration’s enforcement priorities, which includes recent border crossers and repeat violators. 

And so even in the critical shortage of funds and personnel, I 

think that the strategies of your department are effective and are 

taking hold. The policy in ICE, in consultation with the Civil 

Rights and Civil Liberties Office, has developed a new policy designed to protect victims of domestic violence and other crimes, and 

to ensure that they are reported. 

The Dream Act, a conservative-created idea, which I support, has 

been very effective. And young people brought to this country 

through no fault of their own, and this is popularly accepted among 

our citizenry, are given, if they go into service and graduate and 

do a few other things that indicate they want to be good Americans 

like the rest of us, are given a special way to achieve their dream 

of citizenship. 

And so I thank you for coming back again. And I will put the rest 

of my statement in the record, and thank the Chairman for his 

generosity with the time. 

Mr. SMITH. Without objection. 

Thank you, Mr. Conyers. 

[The prepared statement of Mr. Conyers follows:] 

4 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Twenty years ago, the Supreme Court decided in Quill Corp. v. North Dakota that 

it was too difficult for a remote seller to comprehend every tax law in every state 

and locality in which it may sell something. In its view, states needed to simplify 

their sales tax laws so remote sellers could understand them easily. Otherwise, 

these complicated sales tax laws burdened interstate commerce. 

The Supreme Court decided that without simplification, a remote seller would not 

have to collect sales taxes in a state in which it does not have a substantial presence, or in its view, a physical presence. 

But the court did clearly state that Congress is better suited to determine whether a remote seller must collect and remit sales taxes. 

It is past time for Congress to make that determination and we should do so now 

particularly in light of the many technological advances that have occurred since the 

Court rendered its decision 20 years ago. 

For example, because of these technological advances, smartphones can tag a 

photo with the date, time, and most relevant, the precise location through GPS, 

where the photo was taken, no matter where it was taken. 

Clearly, technology has eliminated the burdens a remote seller would have had 

in 1992. And technology has made it easier for Congress to act now. Doing so will 

accomplish several important goals. 

By addressing the Quill decision, Congress will ensure competitive equity among 

retailers. 

The Internet allows consumers to comparison shop quickly before making a final 

purchase. Oftentimes, a consumer can walk into a brick and mortar store, check the 

price of the item, ask the salesperson a few questions, and then take out a 

smartphone to find a cheaper price online. 

The online retail price is generally lower because many Americans do not have 

to pay any sales tax, which can make a significant difference in the final purchase 

price, ranging anywhere from 3 to 12% of the price of the item. 

This gives out-of-state retailers who operate online a clear advantage. They can 

charge the same basic pre-tax price as a local retailer for a pair of designer jeans 

or a video game console, but the price the consumer actually pays is lower because 

they do not collect a sales tax. 

It is obvious why savvy consumers, especially in this cost-conscience environment, 

would take advantage of such considerable savings. 

This also explains why the percentage of online sales and the total amount of online sales continue to increase. 

Competitors should compete on things other than sales tax policy. For those arguing for more of a free market, they should support eliminating any competitive advantage based on sales tax policy. 

Uncollected sales taxes also have a negative impact on local communities, including retailers, and local and state governments. 

Fewer purchases at local retailers translate to fewer local jobs. Main Street retailers, local mom-and-pop stores, and even big-box retailers suffer when they lose customers because they have to collect a sales tax while online retailers do not. 

Lower sales at local retailers also translate to lower revenue for local and state 

governments. Sales taxes constitute a significant state and local revenue source. 

For example, the Census Bureau estimates that nearly one third of state and local 

revenues are derived from general sales and use taxes. 

With ever increasing online sales, states and local governments anticipate huge 

revenue losses as a result of uncollected sales and use taxes. 

For example, the Michigan Department of Treasury estimates that total revenue 

lost to e-commerce and mail order purchases will total $872 million during fiscal 

years 2012 and 2013. 

The impact of such lost revenue is reflected in 

• forced cutbacks to public education programs, such as sports, after-school enrichment programs, and extracurricular activities, 

• delapidated roads and bridges not being repaired, and 

• reductions in critical services, such as police and firefighter protection. 

Just last week, the State Budget Crisis Task Force, which is led by Paul Volcker 

and Richard Ravitch, released a report on the plight of states. 

5 

In its report, the task force recommended that Congress should grant states the 

authority to collect sales taxes on online sales. Doing so would help states address 

their budgetary problems. 

Otherwise, states will have to cut services further. Or, replace the erosion of sales 

taxes by increasing taxes in other areas, something anti-tax advocates would surely 

oppose. 

Fortunately, Congress can ensure a level playing field and address state revenue 

issues by passing bipartisan supported legislation that would allow states to require 

remote sellers to collect and remit sales taxes. 

H.R. 3179, the ‘‘Marketplace Equity Act of 2011,’’ introduced by my colleagues, 

Representatives Steve Womack and Jackie Speier would grant that much-needed 

authority. 

I introduced similar legislation, H.R. 2701, the ‘‘Main Street Fairness Act.’’ 

Our colleagues on the other side of the Capitol, Senators Mike Enzi, Dick Durbin, 

and Lamar Alexander, introduced S. 1832, the ‘‘Marketplace Fairness Act.’’ 

Although each of the three bills take different approaches, they each would accomplish the same goal: leveling the playing field between retailers and online sellers 

by granting that essential authority. 

Today’s hearing focuses on H.R. 3179, a bipartisan bill that would simplify collection rules and increase compliance. As a result, it would ensure fairness and provide 

a national solution. 

This bill would neither impose a national sales tax nor lead to any new taxes. 

Consumers already owe sales and use taxes on the goods and services they purchase; however, many do not pay it voluntarily. 

The business community has worked tirelessly on this issue and supports this bill. 

Big-box retailers, such as Walmart, Best Buy, and JC Penney, and small businesses, 

such as Michigan-based Marshall Music and the National Association of College 

Stores, are urging Congress to act and pass much-needed legislation. 

Even giant online retailer Amazon.com, which has benefitted from not having to 

collect sales taxes in many states, supports Congress acting. 

Other supporters of this legislation include at least a dozen governors—both 

Democratic and Republican—as well as the National Governors Association. In addition, the National Conference of State Legislatures, and the National League of Cities, along with many organizations also urge Congress to pass legislation addressing 

this issue. 

I believe that Congress should pass legislation that promotes economic efficiency 

and helps our states and local governments maintain financial support for public 

education, health, and safety. 

The Marketplace Equity Act and the other legislative proposals that I mentioned 

accomplish these goals. 

I thank Chairman Smith for holding this very important hearing and I urge the 

Chairman to markup this bill at the next scheduled markup. 

Mr. SMITH. Our witness today is Janet Napolitano, Secretary of 

the United States Department of Homeland Security. 

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

her second term as Governor of Arizona. Before becoming Governor, Ms. Napolitano served as attorney general of Arizona and as 

U.S. Attorney for the District of Arizona. 

She is a 1979 graduate of Santa Clara University, where she won 

a Truman Scholarship and was the university’s valedictorian. She 

received her Juris Doctorate 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, Arizona. 

Secretary Napolitano, we look forward to your testimony today, 

and please begin. 

6 

TESTIMONY OF THE HONORABLE JANET NAPOLITANO, 

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY 

Ms. NAPOLITANO. Thank you, Chairman Smith and Ranking 

Member Conyers and Members of the Committee. 

I am pleased to join you today to address the homeland security 

issues that fall within the Committee’s jurisdiction. 

Just as a parenthetical, this is now my 40th time testifying before either the Senate or the House. 

Today, nearly 11 years after the 9/11 attacks, America is stronger and more secure, thanks to the work of the men and women of 

DHS and our Federal, State, local, tribal, and territorial partners 

across the homeland security enterprise. 

Every day, more than 230,000 DHS employees ensure the safety 

and security of the American people in jobs that range from law enforcement officers and agents to disaster response coordinators, 

from those who make sure our waterways stay open to commerce, 

to those who make sure our skies remain safe. The men and 

women of DHS are committed to our mission, and I thank each one 

of them for their service. 

Now as I have said many times, homeland security begins with 

hometown security. As part of our commitment to strengthen 

hometown security, we have worked to get information, tools, and 

resources into the hands of State, local, tribal and territorial officials and first responders. And this has led to significant advances. 

We have made great progress in improving our domestic capabilities to detect and prevent terrorist attacks against our citizens, our 

communities, and our critical infrastructure. We have increased 

our ability to analyze and distribute threat information at all levels. 

We have invested in training for local law enforcement and first 

responders of all types in order to increase expertise and capacity 

at the local level. And we have supported and sustained preparedness and response capabilities across the country through more 

than $36 billion in Homeland Security grants since 2002. 

As the Committee knows, we also have made substantial advances in securing our Nation’s borders and enforcing the immigration laws. And at the same time, we have worked to streamline and 

facilitate the legal immigration process. 

In my time, I would like to discuss our efforts with respect to immigration consistent with the Committee’s jurisdiction over this 

important, indeed, essential, issue for our country. 

As Ranking Member Conyers noted, over the past 3 and a half 

years, this Administration has deployed unprecedented levels of 

personnel, technology, and resources to protect our Nation’s borders. These efforts have achieved significant results, and illegal immigration attempts are at their lowest levels since 1971. 

This decrease in apprehensions of those seeking to enter the 

country illegally, one of the best indicators of illegal immigration 

attempts, is combined with increases seizures in drugs, weapons, 

cash, and contraband. 

To secure our Nation’s Southwest border, we have continued to 

deploy unprecedented amounts of manpower, resources, and technology, while expanding our relationships and partnerships with 

7 

Federal, State, tribal, territorial and local partners, as well as with 

the Government of Mexico. 

Simply put, the Obama administration has undertaken the most 

serious and sustained action to secure the Southwest border in our 

Nation’s history. This includes increasing the number of Border Patrol agents nationwide from approximately 10,000 in 2004 to more 

than 21,000 today, with nearly 18,500 boots on the ground and air 

coverage border-wide along the Southwest border. 

We also have worked, and continue to work, to enforce and administer our immigration laws in a cohesive way that is smart, effective, and that maximizes the resources that Congress has given 

us to do this important job. 

Our priorities are to enhance public safety, national security, 

border security, and the integrity of the immigration system, while 

respecting the rule of law and staying true to our history as a Nation of immigrants. 

We carry out these priorities by focusing our resources on the 

identification and removal of criminal aliens, repeat immigration 

violators, recent border entrants, and those who otherwise pose a 

threat to public safety or national security. 

To this end, we have expanded the use and frequency of investigations and programs that track down criminals and other public 

safety and national security threats on our streets, in our neighborhoods, and in our jails. 

These efforts have achieved historic results, including the removal of 216,000 convicted criminals in 2011, the highest number 

ever. This year, we will remove the highest number of aggregated 

felons ever. 

Furthermore, these efforts are enhanced by our use of prosecutorial discretion, including my June 15 announcement regarding 

the availability of deferred action for individuals who came to the 

United States as children. 

These policies promote the efficient use of our resources, ensuring that we do not divert them away from the removal of convicted 

criminals by pursuing the removal of young people who came to 

this country as children, and who have called no other country 

home. Implementation of the deferred action process is underway, 

and we will be ready to accept applications on August 15. 

Additionally, we have made numerous improvements to our administration of immigration benefits and services, continuing our 

tradition as a welcoming Nation to new immigrants, businesses, 

students, and those seeking refuge and asylum. 

In conclusion, this department has come a long way, and in the 

nearly 11 years since 9/11, to enhance protection of the United 

States and engage our full range of partners in this shared responsibility. 

Together, we have made significant progress to strengthen our 

borders, enforce our immigration laws, and improve and streamline 

our immigration processes and systems. 

But we are aware of challenges that remain. Threats against our 

Nation, whether by terrorism or otherwise, continue to exist and to 

evolve. And DHS must continue to evolve as well. 

8 

We continue to be ever-vigilant to protect against threats to our 

Nation, while promoting the movement of goods and people, and 

protecting our essential rights and liberties. 

I thank the Committee for your attention as we work together 

to keep the country safe, and I am looking forward to your questions. Thank you. 

[The prepared statement of Ms. Napolitano follows:] 


DHS-1.eps
9 


DHS-2.eps
10 


DHS-3.eps
11 


DHS-4.eps
12 


DHS-5.eps
13 


DHS-6.eps
14 


DHS-7.eps
15 


DHS-8.eps
16 


DHS-9.eps
17 


DHS-10.eps
18 


DHS-11.eps
19 


DHS-12.eps
20 


DHS-13.eps
21 


DHS-14.eps
22 


DHS-15.eps
23 

Mr. SMITH. Thank you, Madam Secretary. I will recognize myself 

for questions. 

And let me go first to the subject I mentioned in my opening 

statement a minute ago, and that is the subject of the leaks that 

I feel and so many others feel have endangered our national security and actually put American lives at risk. 


DHS-16.eps
24 

As you know, there is bipartisan concern for those leaks. You had 

the Chairs of the House Intelligence Committee and the Senate Intelligence Committee both saying that the extent of these leaks are 

broader, deeper, more dangerous than any we have seen in recent 

years. 

Have you had the opportunity to talk to the President and/or his 

national security advisers about these leaks and how to prevent 

them in the future? 

Ms. NAPOLITANO. Mr. Chairman, I have spoken with the head of 

the DNI about the leaks. He is leading an investigation, as you 

know, but I too take these very seriously. They do endanger homeland security. 

Mr. SMITH. Okay. And according to media reports, and we are 

talking about in this case the New York Times and the AP, it was 

high-level Administration officials who were the source of these 

leaks. Have you taken any action yourself to try to find out more 

about how they occurred and why high-level Administration officials were involved? 

Ms. NAPOLITANO. No, I have not myself, Mr. Chairman. But others are looking into the source of the leaks. 

Mr. SMITH. Well, speaking of the others looking into it, do you 

favor the appointment of, say, a special counsel to investigate these 

leaks? And let me say before you answer that, when we had the 

incident of a single leak during the last Bush administration, that 

President was willing and did appoint a special outside counsel. 

Would you support such an outside counsel being appointed because of these recent leaks? 

Ms. NAPOLITANO. Mr. Chairman, there are a number of individuals that are looking into the source of the leaks. I don’t know that 

appointing yet another one would add anything of value. 

Mr. SMITH. Well, let me explain why I think it would, very quickly. What the Administration has done is to appoint individuals to 

investigate itself. And I am not sure how much confidence the 

American people will have that that is going to be an objective or 

in-depth investigation where the Administration is, as I say, investigating itself. 

It would be far more credible for the Administration to appoint 

a special counsel, an outside party to get to the bottom of the leaks. 

So I am disappointed the Administration has not been willing to 

do that. 

Let me go now to the subject of the Administration trying to implement some of the Dream Act provisions without a vote of Congress, but go to the way that is being implemented. 

Will individuals who have pending Dream Act applications be eligible for advanced parole? I mentioned this to you earlier, but it 

is my understanding they would eligible. Do you have any reason 

to think otherwise? 

Ms. NAPOLITANO. This is not an advanced parole program. This 

is a deferred action, case-by-case—— 

Mr. SMITH. Right, I know it is not an advanced parole program, 

but would individuals be eligible to receive that status, who would 

be considered under these provisions? 

25 

Ms. NAPOLITANO. There may be particular individuals, Mr. 

Chairman, but the program is designed to be a case-by-case analysis only for deferred action. 

Mr. SMITH. Okay, but individuals might be considered for advanced parole? 

Ms. NAPOLITANO. Again, there are so many individual factors 

that go into each case that I don’t want to make a categorical answer. 

Mr. SMITH. I am not saying that all would, but you said that 

some individuals might be. That is of some concern to me because 

if they get that status, that is going to enable them to get lawful 

permanent status, which is the path to citizenship. 

So if you go down that road, as I think you may be going, I think 

we need to be aware of the consequences of those actions. 

Ms. NAPOLITANO. Mr. Chairman, if I might respond to that? 

Mr. SMITH. Sure. 

Ms. NAPOLITANO. The factors that go into this are the factors laid 

out in my memorandum to our department heads on June 15th. 

This is clearly a deferred action, case-by-case analysis. 

Mr. SMITH. Right. 

Ms. NAPOLITANO. There may be factors independent of and separate from—— 

Mr. SMITH. I know it is case-by-case, but individuals, I think, will 

be eligible. And that will put them on the path to citizenship. 

Next question: Are the parents of individuals, of those who receive Dream Act amnesty, would they be eligible for prosecutorial 

discretion, the parents of the individuals? 

Ms. NAPOLITANO. They will not be eligible for deferment, deferred action, pursuant to my June 15 memorandum. They may 

independently be subject to an exercise of prosecutorial discretion, 

should they have a case before ICE—— 

Mr. SMITH. Okay. 

Ms. NAPOLITANO [continuing]. For example. 

Mr. SMITH. And last question is this: DHS does not currently 

plan to require Dream amnesty applicants to provide a certified 

school transcript. It seems to me that that is the only way to prove 

that those individuals were in the country and are eligible under 

some of these provisions. Do you plan to require applicants to provide that certified school transcript or not? 

Ms. NAPOLITANO. Mr. Chairman, we are still working through 

the details on some of that. Our plan is to accept different types 

of documents and to—— 

Mr. SMITH. Right. 

Ms. NAPOLITANO [continuing]. Enhance our fraud prevention efforts. 

Mr. SMITH. How can you still be working through those details 

when I understand over 1,000 individuals have already been granted status under these provisions? 

Ms. NAPOLITANO. We are working through the details of how 

someone who is applying through CIS, what records they have to 

produce. 

ICE already had several individuals in their removal proceedings 

and have looked at those. 

26 

Mr. SMITH. And is it true about 1,000 individuals have already 

been approved under the Dream Act? 

Ms. NAPOLITANO. About 1,000 have been approved for deferred 

action, yes. 

Mr. SMITH. And we still don’t know the details about whether 

transcripts are going to be required or not? 

Ms. NAPOLITANO. Well, school transcripts, residency records, 

medical records, anything to show residency, age, what have you. 

Mr. SMITH. Right. 

Ms. NAPOLITANO. And then we will evaluate on a case-by-case 

basis those documents—— 

Mr. SMITH. So the certified school transcripts may or may not be 

required? 

Ms. NAPOLITANO. I think that is fair to say. 

Mr. SMITH. Okay. Thank you, Madam Secretary. 

And the gentleman from Michigan, Mr. Conyers, is recognized for 

his questions. 

Mr. CONYERS. Thank you, Chairman Smith. 

Thank you, Secretary Napolitano. 

I wanted to start off with these threats at the border crossing in 

Detroit and Windsor. Is there any comment you can make about 

that at this point? 

Ms. NAPOLITANO. Excuse me, I am sorry? 

Mr. CONYERS. About the bomb threats that shut down the Ambassador Bridge in Detroit and Windsor for about 5 hours, and 

they are of national concern and, of course, in my locality. 

Do you have any information you can share with us at this point 

on that? 

Ms. NAPOLITANO. Congressman, let me just say that the FBI has 

an open and active investigation there. We are providing all assistance necessary. We take this very seriously. And we are also looking, quite frankly, operationally at how long the closures were, to 

see whether there are ways to more swiftly clear a bridge or a tunnel for the lawful commerce that needs to go back and forth. 

Mr. CONYERS. Thank you. 

Now, the Chairman of this Committee mentioned amnesty twice 

only. That was much less than he usually does. But the Dream Act, 

can you help us clear up this notion of some kind of deferred amnesty being involved in this, please? 

Ms. NAPOLITANO. It is not amnesty. What this is, is it is really 

the development that we have been looking at over the last several 

years of how do we clear out the backlog of non-priority cases, so 

that we can focus on criminals, recent border crossers, repeat violators. And this particular group has strong equities for it. 

As we went through the case-by-case analysis of the existing 

backlog, it became clear to me that we needed to do something in 

addition to that. And that resulted in the conclusion to offer 2-year 

deferred action, case-by-case analysis, subject to renewal. 

Mr. CONYERS. What about the recent Arizona case? The court 

opinion gave us some strong support for the executive branch to exercise prosecutorial discretion. Do you have any comments that you 

can share with us about that matter? 

Ms. NAPOLITANO. The Supreme Court, I think, validated the fact 

that the Federal Government ultimately has the discretion in enVerDate Aug 31 2005 10:39 Oct 11, 2012 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 H:\WORK\FULL\071912\75154.000 HJUD1 PsN: DOUGA
27 

forcing and choosing how to enforce the Nation’s immigration laws. 

And I think their language is very strong. 

If you go back through precedent, you have Reno v. The Arab 

American Anti-Discrimination League. You have Chaney v. Heckler. And ultimately, you have Article II, Section 3 of the Constitution, 

reaffirming that the executive has discretion in terms of who to 

prosecute and who to prioritize resources for. In this case, criminals, recent border violators, and repeat violators. 

Mr. CONYERS. Now, our Subcommittee on Crime issued a subpoena for information related to individuals who are arrested, identified by ICE for removal, but never taken into ICE custody. And 

I have been told you produced nearly 250,000 individuals satisfying 

the subpoena, and you continue to provide additional information. 

How is that coming along? That was a sort of—we don’t normally 

have Subcommittees issuing subpoenas, but, oh well, you know. 

Ms. NAPOLITANO. We intend and have been trying to comply with 

the subpoena and to provide the documents. A lot of the requests 

are for documents in formats other than how we maintain the documents, which adds an additional level. 

I think we just received another request, I want to say in midJuly. We intend to comply with that. 

Mr. CONYERS. I have other questions, but I will be submitting 

them to you and will be putting them in the record. 

Thank you, Chairman Smith. 

Mr. SMITH. Thank you, Mr. Conyers. 

The gentleman from Wisconsin, Mr. Sensenbrenner, is recognized. 

Mr. SENSENBRENNER. Thank you very much. 

Madam Secretary, first of all, let me compliment you for trying 

to soften me up by revealing that you are a Packers fan. I commend you for your very good judgment on that. 

Now, one of the biggest problems we have is visa overstays. And 

I have seen estimates that up to 40 percent of the illegal immigrants in the country enter the country legally and did not leave 

before their visas expired. 

What kind of figures do you have about visa overstays? And what 

plans do you have to track down those who overstay their visas, 

as well as whether we should have some type of exit check when 

people leave the country? 

Ms. NAPOLITANO. Let me break that into two parts. On the visa 

overstays, based on numbers from U.S.-VISIT, we could have has 

as many as 1.6 million. So last year, I directed that we had to go 

back, we had to identify those visa overstays, if they were indeed 

overstays, and evaluate their status and make referrals to ICE. 

We found in that evaluation that half of those were not—they actually had left the country, and we just hadn’t matched the records 

appropriately. 

A number of others actually weren’t overstays. They had changed 

their status. 

But we have made referrals to ICE. We have done background 

checks on all of them, against law enforcement and national security databases, the whole universe, and we are current now. 

With respect to an exit system, we have given the Congress, in 

May, our plan on how we get to a biometric exit system for the 

28 

country. We begin with what we call enhanced biographic, using 

data that we previously didn’t have all in one place that you could 

easily search. But we have given that plan, and our intent is to 

move forward. 

Interestingly, one of our new projects is with Canada. We are 

going to match with Canada their entry data for land entry. So 

even if we don’t have a lane or an ability to mark our exit data 

at the land border, we will take their entry data and put it in our 

system. 

Mr. SENSENBRENNER. Okay. Thank you. 

Now that gets me to the story that appeared yesterday in a CNS 

report that said that the TSA approved flight training for 25 illegal 

aliens at a Boston area flight school that was owned by another illegal alien, according to a GAO study. The illegal alien flight school 

attendees included eight who had entered the country illegally and 

17 who had overstayed their allowed period of admission to the 

United States, according to an audit by the GAO. 

And the story goes on to say that there were over 25,000 foreign 

nationals in the FAA airman registry that were not on the TSA 

AFSP database, and, consequently, had not been vetted. Now, this 

sounds like a 9/11 deja vu, and I am wondering that the Department of Homeland Security is going to do to make sure that everybody who is in a flight school is properly vetted, if they are a foreign national. 

Ms. NAPOLITANO. Yes, I think that report referred to a several 

year old matter, which obviously is of concern. But we took steps 

in 2010 to make sure that all foreign students who are in this 

country applying to fight school are vetted, and that has been in 

place. And we intend to confirm that. 

We have been doing it for 2 years. I think what the GAO said, 

well, you don’t have a written thing that says—we agree you have 

been doing it, but you need a written MOA. So we are going to put 

that together. 

Mr. SENSENBRENNER. And how long will that take? 

Ms. NAPOLITANO. Oh, we will do it very quickly. I think the flight 

schools, we want to make sure we are very tight there, for obvious 

reasons. 

Mr. SENSENBRENNER. Okay. The story also said that the GAO 

did not provide the full number of individuals who are not properly 

vetted. Do you have numbers on how many of these folks were not 

properly vetted? 

Ms. NAPOLITANO. Well, all I can say is that foreign students are 

vetted, and they have been being vetted for several years. If they 

apply to the FAA for a license, there is a re-vetting that goes on. 

And then the FAA database is routinely pinged against our national security and criminal databases. 

Mr. SENSENBRENNER. Okay, thank you very much. 

I yield back the balance of my time. 

Mr. SMITH. Thank you, Mr. Sensenbrenner. 

The gentleman from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you. 

Madam Secretary, 5 years ago, Congress passed the 9/11 Commission Implementation bill, which mandated that, by this month, 

29 

all maritime cargo containers must be scanned before they are 

loaded onto ships bound for the United States. 

When we wrote the law, we recognized that 100 percent scanning 

would be difficult to achieve overnight, which is why we gave DHS 

5 years to comply and allowed for extensions of the deadline in certain cases. We assumed that 100 percent scanning would be phased 

in, and that the department would make a good-faith effort to try 

to comply with the law. 

Unfortunately, DHS just recently granted itself a 2-year extension for all ports, citing obstacles that, from what we can tell, the 

department never even tried to overcome. Your letter to Congress 

explaining the extension repeats a lot of the same objections we 

heard 5 years ago, which Congress rejected at that time. 

You have repeatedly said that you prefer a layered approach in 

scanning 100 percent of high-risk cargo. I don’t think anybody 

would have a problem with that, as long as the department’s efforts don’t stop with the high-risk cargo. Checking just the cargo 

you think is high risk is inadequate. Scanning 100 percent of all 

cargo should be the ultimate goal. 

The department takes a 100 percent scanning approach at airports. If we pat down and scan grandmothers and 4-year-olds, because we must check 100 percent at airports, why shouldn’t the 

same principle hold true for maritime containers, which, as many 

security experts have noted, could more easily contain nuclear 

weapons? 

That is the law, and that is what you should be working to 

achieve. I am concerned that DHS simply decided it did not agree 

with the law and has never made any good faith effort to resolve 

the potential challenges. 

DHS has justified extending the deadline for 100 percent scanning by citing technological and operational barriers. Yet there are 

port operators and security companies that want to work with the 

department on implementing the law and that tell us that the department won’t even talk to them. 

DHS claims the cost of implementing the mandate is $16 billion, 

but that assumes that the Government would pay to acquire, maintain, and operate the equipment when, in fact, there is nothing in 

the law that says that cost has to be borne by taxpayers. 

The cost per container, and a container contains an average of 

$66,000 worth of goods, has been estimated at $10 to $20 per container, which is a trivial cost. We all pay a $5 passenger security 

fee for airline tickets. 

So my questions are, why does DHS continue to resist even trying to comply with the law and to achieve the scanning that the 

law requires? And will you commit to work with us in good faith 

in moving forward to make progress toward the mandate that Congress passed into law 5 years ago of scanning 100 percent of cargo 

containers before they are put onto ships bound for American 

ports? 

Ms. NAPOLITANO. Representative, in my view, we have made a 

good faith effort to comply with the law. We have conducted pilot 

projects abroad. We have met with commercial carriers. We have 

met with foreign governments who would have to give us the ability to install things abroad. 

30 

There has been extensive research done on this, and it was done 

by us, and it was done by my predecessor, but we did it independently. 

We both came to the same conclusion, that the goal is the right 

goal. How we get there—— 

Mr. NADLER. The goal of 100 percent scanning is the right goal? 

Ms. NAPOLITANO. The goal of safe delivery of containers into U.S. 

ports is—— 

Mr. NADLER. Excuse me. Congress decided that a layered high 

risk—a layered approach of inspecting only high-risk cargo, and, 

for that matter, inspecting even all of it once it is here, was not 

sufficient. That is a decision that Congress made. It is the law. It 

is not up to the department to change that view. 

Ms. NAPOLITANO. Well, Congressman, we have a very extensive 

program, including not just phased in but the container security 

initiative, the global supply chain initiative and others. 

Mr. NADLER. All of which Congress knew about and decided was 

not sufficient. And Congress decided, and the President signed into 

law, a law that says you must implement 100 percent scanning as 

quickly as practicable within 5 years. 

And yet you have decided or the department decided that that 

is not practical, which is not your decision. That is Congress’ decision. And you are making no attempt, and you have made no real 

attempt, as far as we can tell, to implement the law. 

Ms. NAPOLITANO. Well, Congressman, you and I are just going to 

have to disagree on that. But furthermore, we continue to improve 

efforts to inspect containers, to have trusted shippers, to have 

trusted—— 

Mr. NADLER. But isn’t it true that under 4 percent of containers 

are now inspected before they get here? 

Ms. NAPOLITANO. Say that again, please? 

Mr. NADLER. Isn’t it true, I forget whether it is 2 percent or 4 

percent of containers are inspected before they get there? 

Ms. NAPOLITANO. It probably depends on the particular port. 

Mr. NADLER. But, nationally, it is under 4 percent? 

Ms. NAPOLITANO. Again, I can’t give you that number. 

Mr. NADLER. Well, my information is that it is under 4 percent, 

and that leaves it 96 percent short. 

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

Nadler. 

The gentleman from California, Mr. Gallegly, is recognized. 

Mr. GALLEGLY. Thank you very much, Mr. Chairman. 

And welcome, Madam Secretary. 

This is a very important hearing. It is been an issue I have been 

involved with for 25 years here in the Congress, and it never seems 

to get any easier. 

I would like to make a unanimous consent request that, because 

of the amount of time that we have here this morning, I know that 

we have the opportunity to submit questions. My unanimous consent would be that the questions that I submit to the Secretary be 

responded to, hopefully within a period of 30 days, and that I 

would have, under unanimous consent, the opportunity to, for the 

record, have a response to the questions that were asked, that were 

responded back to by the Secretary. 

31 

Mr. SMITH. Without objection. 

Mr. WATT. Mr. Chairman, I reserve the right to object. 

Mr. SMITH. The gentleman from North Carolina. 

Mr. WATT. Can the gentleman explain what he is requesting? 

Mr. GALLEGLY. Well, I appreciate the opportunity to respond to 

my good friend from North Carolina. 

I don’t intend to ask any trick questions. I am not asking for 

questions. And, for the record, you will find that the questions will 

not be something that requires a great deal of research or whatever. 

It is really more on policy and trying to understand the policy on 

some of these issues, and I would like to—sometimes we get responses that really aren’t complete. And I would just like to say, 

in my opinion, I accept or disagree on it, just for the record. 

Mr. WATT. Mr. Chairman, I have some serious reservations about 

what the gentleman is proposing. 

First of all, I assume he is proposing a set of rules for himself 

that does not apply to all other Members. His intentions may be 

absolutely good, but I don’t have the same level of confidence in all 

of the other Members having the same set of intentions, first of all. 

Second, it seems to me that each of us has the opportunity to 

have dialogue with the Secretary and members of the Administration by calling them, having dialogue with them on their own. 

And it seems to me, to set up this procedure, which is inconsistent with the Committee Rules, is something that is unnecessary. 

I am happy to listen to the gentleman, but I am trying to keep 

from objecting, but—— 

Mr. GALLEGLY. Well, I appreciate the gentleman’s comments. 

And I certainly don’t disagree with your statement about the Committee as a whole and me individually. I can completely accept 

that. I appreciate your kind remarks. 

Mr. WATT. I appreciate the gentleman acknowledging what I 

said. 

Mr. GALLEGLY. The issue here is that I don’t intend this to be 

a precedent. This is not a special thing. That is why we have unanimous consent policy here, on the floor, wherever. 

And I have never asked for this before. We have a very limited 

amount of time. There is a tremendous amount on the agenda here. 

And I would just like to ask some simple, straightforward issues, 

particularly having to do with criminal immigrants, but not limited 

to, and have an opportunity to just, for the record, respond to it. 

It would be totally consistent with everything that we are doing 

here, only giving the Secretary an opportunity to have a little time 

to put these things together. And that is the whole purpose of having this hearing. 

Mr. SMITH. We have had a good discussion on this subject. 

Does the gentleman from North Carolina object to the unanimous 

consent request? 

Mr. WATT. Let me continue to reserve, first, just to be clear on 

why I am intending to object, because, I mean, I think all of us are 

frustrated by the 5-minute rule. We are all frustrated by the short 

time that the record is kept open for responses from the Administration. 

32 

*Mr. Gallegly amended this statement to ‘‘13 or 14 million people out of work.’’ 

A better route to cover that, from my opinion, Mr. Chairman, 

would be to extend the time for us to have this kind of back and 

forth from the shorter period that we have been having it to a 

longer period, so that people can go back and forth. But I think I 

am inclined to object to—— 

Mr. GALLEGLY. Mr. Chairman, may I respond? 

I think that everybody on this Committee, particularly those like 

my good friend Mel Watt, Bobby Scott, and others, over the 25 

years, some of us 20 years that we have served on this Committee, 

as it relates to the amount of time that Members have taken respectively, that the portion that I have taken in relation to my good 

friend Mr. Watt and others is not even a tiny blip on the radar 

screen. 

Mr. WATT. And for that reason, I am having real trouble objecting to the gentleman, because I know his intentions are good. But 

I really think we would be setting a bad precedent, if we did this. 

And for that reason, I must object, Mr. Chairman. 

Mr. SMITH. Okay. The gentleman from California is recognized 

for 5 minutes to ask questions. 

Mr. GALLEGLY. Thank you very much. And while I understand 

Mr. Watt’s objection, I am disappointed. But life will go on. 

My questions, however, will probably be a little more complex. 

After the hearing, I will submit some questions. 

Madam Secretary, does the DHS plan to give authorization to all 

the people who are exempt from the deportation under—the exempt deportation under the executive order of June 15th? And further, approximately how many illegal immigrations as a result of 

that will receive work permits? 

Ms. NAPOLITANO. Clarification, there is no executive order, per 

se. This is a memorandum from myself, as the Secretary, to the 

component heads of the Department of Homeland Security, setting 

out the deferred action program. 

The answer is yes, they will be able to apply for work authorization. 

Mr. GALLEGLY. Okay, and again, we keep saying we don’t want 

to talk about amnesty or whatever, but at least on a temporary 

basis this is a de facto amnesty on a temporary basis. My interpretation. We are all entitled to that. If you are allowed to stay when 

you are here illegally, you get to stay. 

Now, how many illegals would be given work permits? 

Ms. NAPOLITANO. Well, again, they can apply for work authorization. They are going to have to meet the standards for being eligible for work authorization, but the linkage between deferred action 

and work authorization application goes back to the 1980’s, that is 

a long-standing—— 

Mr. GALLEGLY. Whatever the requirements are, is it going to be 

two or three people or 200,000 or 300,000 people? 

You know, we have 300 or 400 people out of work in the country 

now.* 

Ms. NAPOLITANO. Yes, Congressman, and there are—if I might 

back up a moment, because this was an issue that I thought about 

33 

deeply before I wrote my memorandum, because jobs for Americans 

are very important. 

My conclusion was, and we probably differ on this, but my conclusion was there are lots of different ways to stimulate job creation. Some of them are before the Congress now, but we shouldn’t 

balance the American economy on the backs of children who were 

brought here mostly—— 

Mr. GALLEGLY. Madam Secretary, with all due respect, because 

of the time and with the help of my good friend, Mr. Watt, I really 

would like to have some succinct answers, just out of respect for 

time. 

How many people as a result of this that are illegal in this country will be able to work in this country while we have 14 million 

Americans citizens that are without work? 

Do you have just an approximate number? 

Ms. NAPOLITANO. I think, Congressman, I try to keep my answers succinct and I think—— 

Mr. GALLEGLY. Just a number would be fine. 

Ms. NAPOLITANO. I can tell you there is no real estimate. I have 

seen—— 

Mr. GALLEGLY. Could be a million? 

Ms. NAPOLITANO. We don’t know. 

Mr. GALLEGLY. Okay, you have answered my question. 

Is it true that work site enforcement, we talk about border, border, border, but we don’t talk about the 12, 14, 16, 18, 22 million 

people that are here illegally already in the country. Is it true that 

work site enforcement is down 70 percent over the past 3 years? 

Ms. NAPOLITANO. Well, that answer is partially true. If I might 

explain, it is down from like 5,000 to 1,500. 

In juxtaposition, we have been able to remove 100,000 more felons from the country than we were before, and the number of I9 audits, civil sanctions, debarments is up. 

Mr. GALLEGLY. Well, if you had increased the number of worksite 

enforcements, or if you had have left it, instead of reducing it 70 

percent, I would assume that that exponentially would even be a 

better situation. 

Ms. NAPOLITANO. Well, even if we had not made any adjustments 

for our priorities for criminals, border crossers, et cetera, you are 

still talking about a maximum of 5,000 cases in the past. Better 

trade off to say go after the employers themselves, through I-9s 

and other audits, and then go after the criminal. 

Mr. GALLEGLY. I couldn’t agree with you more about going after 

employers. 

Two quick questions. This is a yes or no. Is it true that ICE 

agents are now instructed not to detain or remove illegals during 

a work site enforcement action? Yes or no, please. 

Ms. NAPOLITANO. It doesn’t permit a yes or no answer. The answer is, it depends. 

Mr. GALLEGLY. Okay, you have answered my question. 

Getting back to Mr. Sensenbrenner’s question having to do with 

visas and visa overstays, we, I think, accept the fact that a large 

percentage of people that illegally come to this country, maybe 40 

percent, never cross the southern border. In fact, the people that 

were the perpetrators of 9/11 were visa overstays. 

34 

Now, having said that, to date, DHS has established visa security units at 19 locations with a presence in only 15 countries. 

However, ICE has identified 50 high-risk posts. 

Why then does the Administration’s proposed budget reduce 

funding for the visa security program for FY 2012? 

Ms. NAPOLITANO. Yes, difficult choices had to be made, given the 

constraints of the Budget Control Act. 

We have other things that we can do to make sure that visa applicants are vetted against our criminal and national security databases. So while it is nice to have visa security program officers in 

different places, it is not something that is essential to the national 

security. 

Mr. GALLEGLY. Thank you very much. 

I see my time has expired, Mr. Chairman. 

And I still like you, Mel. 

Mr. SMITH. Thank you, Mr. Gallegly. 

The gentleman from Virginia, Mr. Scott, is recognized. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Madam Secretary, if the gentleman from California has follow-up 

questions with your agencies, do you anticipate any difficulty that 

he or any other Member might have in getting appropriate responses and clarifications to those follow-up questions? 

Ms. NAPOLITANO. We endeavor to do our best to respond and to 

do so in a timely manner. 

Mr. SCOTT. Thank you. 

You have talked about the student visas, the student—— 

Ms. NAPOLITANO. Deferred action. 

Mr. SCOTT. Deferred action. August 15th, you indicated would be 

the application date. When would they expect to get some kind of 

documentation, and what would that documentation allow them to 

do? 

Ms. NAPOLITANO. We anticipate that we will have guidance by 

the 1st of August. What we anticipate is, within a short period of 

after they send in their applications, they will receive an acknowledgement that their application is complete, and is ready to be 

processed. 

They will get a number, and the number will enable them to 

track their matter as it goes through the adjudicatory process. 

Mr. SCOTT. Well, will they be able to get on an airplane? 

Ms. NAPOLITANO. Yes. 

Mr. SCOTT. With that or with the subsequent documentation? 

Ms. NAPOLITANO. They will be input into the system. And the 

idea then is that deportation or any removal action would be 

stayed until we complete the adjudicatory process. 

Mr. SCOTT. Thank you. 

Can you give us the status of your department implementation 

to PREA, the Prison Rape Elimination Act, and whether or not 

your regulations will be the same as those in the Department of 

Justice? 

Ms. NAPOLITANO. They will meet PREA standards. They will not 

be identical because our facilities are different. 

But we have already issued new standards for prison rape elimination, including a zero tolerance policy. We are following up very 

strongly on all allegations that are made, and we are going to be 

35 

issuing guidelines or standards that meet the PREA. But they will 

be different than DOJ, because our facilities are different. 

Mr. SCOTT. Following up the comments from the gentleman from 

New York on port security, I understand that there is technology 

where the container trucks can drive through a scanner and essentially get scanned while the truck is going 15, 20 or more miles per 

hour. Is that—— 

Ms. NAPOLITANO. No, the current truck scanners that we use, 

say, for example, at the border where we have thousands of trucks 

cross every day, the trucks that go through, I think it is 3 miles 

per hour. 

Mr. SCOTT. Is there any reason why that can’t be universal? Why 

you can’t do 100 percent? 

Ms. NAPOLITANO. One hundred percent of what? Trucks or containers or? 

Mr. SCOTT. Container trucks leaving a port. 

Ms. NAPOLITANO. Representative, I think that requires a longer 

answer than time permits. I will try to be succinct. We will get you 

some material on that, but the fact of the matter is that seaborne 

containers go through a whole different layered process of security 

that is different than land-borne trucks. 

Mr. SCOTT. What portion of containers are scanned in foreign 

ports before they leave, coming to America? 

Ms. NAPOLITANO. It depends on the port, but, again, we use a 

risk targeting system to identify high-risk cargo. 

And high-risk cargo, let me discuss that for a moment, because 

what it means is that we have a process for certifying trusted shippers, trusted forwarders, others that are moving containers all the 

time to the United States and doing some random checking there. 

And then when we have containers that don’t meet those kinds 

of standards, what we do to make sure that those containers are 

safe before they enter a U.S. port. 

Mr. SCOTT. I guess the final question I have in the few seconds 

I have left, can you talk about the agency’s use of the Federal Prison Industry program? 

Ms. NAPOLITANO. We use FPI under contract. I believe we use 

them here in D.C. 

Mr. SCOTT. What do you mean by ‘‘use’’? 

Ms. NAPOLITANO. I believe we have a contract with them. Is 

there a particular issue that I can help you with? 

Mr. SCOTT. Yes, Federal Prison Industry is a program that we 

want to maximize the use of, because you have prisoners there getting job training, using the Prison Industry program for management purposes, encouraging them to be more likely to get a job 

when they get out. 

A lot of agencies, because of other complications, that Prison Industry program is not being fully utilized, and we wanted to make 

sure that the Department of Homeland Security was fully using 

the program, so that we get the best benefit. The utilization, the 

number of people in prison under the program has been declining 

over the past few years. 

Ms. NAPOLITANO. My understanding is that we are, but I will be 

happy to verify that for you. 

Mr. SMITH. Okay, thank you, Mr. Scott. 

36 

The gentleman from Virginia, Mr. Goodlatte, is recognized. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Madam Secretary, you have made several references to responding to requests from this Committee, including requests in writing 

in a timely fashion. You last appeared before this Committee on 

October 26 of last year. And following that hearing, as required by 

the Rules of the Committee, a number of questions were submitted 

to the Committee and transmitted to you in a timely fashion, and 

the answers to those questions rolled in at 11:26 p.m. last night. 

Do you regard that 9-month time period to answer questions as 

being timely? 

Ms. NAPOLITANO. Representative, obviously not, although it is before this hearing. 

Mr. GOODLATTE. What good is that to us—— 

Ms. NAPOLITANO. If I can—— 

Mr. GOODLATTE. 11:26 p.m. last night. That is supposed to help 

the Members of the Committee prepare for this hearing? 

Ms. NAPOLITANO. If I might, Representative. I would need to go 

back. Sometimes we are asked—we have responded and Committee 

Members don’t, for whatever reason, don’t get the response. And as 

they prepare for hearings, their staff asks us for new copies of that. 

I would need to look into that. 

In addition, I would like to remind the Committee, we try to be 

timely. But we have well over 100 Committees and Subcommittees 

that are submitting questions to us. 

Mr. GOODLATTE. And your statement today that you answered 

these in a timely fashion is not rebutted by your failure to answer 

the questions until 9 months after the last hearing—— 

Ms. NAPOLITANO. Again—— 

Mr. GOODLATTE. Just a few hours before this hearing? 

Ms. NAPOLITANO. Again, Representative—— 

Mr. GOODLATTE. Let me go on to a question. 

Ms. NAPOLITANO. Well, you made a statement, I think—— 

Mr. GOODLATTE. No, Madam Secretary. 

Ms. NAPOLITANO. Mr. Chairman? 

Mr. GOODLATTE. We have asked and—— 

Ms. NAPOLITANO. Mr. Chairman? 

Mr. GOODLATTE [continuing]. Answered that question. 

Ms. NAPOLITANO. Mr. Chairman, may I get an opportunity to answer the question? 

Mr. GOODLATTE. You have already answered it once. 

Mr. CONYERS. Can we have regular order, Chairman? 

Mr. GOODLATTE. I would definitely like regular order. 

Ms. NAPOLITANO. Representative, I just wanted to clear up— 

what I said was that we often are in the situation where we are 

resending answers to questions that were sent well before as staff 

prepare for hearings. If that didn’t happen here—— 

Mr. GOODLATTE. That is not the case here, Madam Secretary. 

Ms. NAPOLITANO. Well, if that is what you want us to look into, 

I would be happy to look into it. 

Mr. GOODLATTE. We want you to answer the questions in a timely manner. That is what we want. 

Ms. NAPOLITANO. Fair enough. 

37 

Mr. GOODLATTE. In your testimony, you state that homeland security begins with hometown security, and that you have worked 

to get information, tools, and resources into the hands of State, 

local, tribal, and territorial officials. How does canceling your 

287(g) agreements in Arizona, and refusing to enter into them in 

my State of Virginia, aid hometown security? When you take that 

resource away from local law enforcement, can you really claim 

that you are working to help hometown security? 

Ms. NAPOLITANO. Absolutely. The 287(g) agreements that are 

task force, not in the jails, which are very productive, but the task 

forces, the ones your refer to, are remarkably unproductive and 

very expensive. 

Of the six of the seven Arizona agreements we had on the task 

forces, they had produced zero removals in 2 years. The only one 

that was doing anything was the Department of Public Safety, and 

we already have a task force with them. They were fine with our 

cancellation. 

It costs us per removal on a 287(g) almost 10 times as much 

through Secure Communities or through the 287(g) jail model. We 

are moving to the more efficient models. 

Mr. GOODLATTE. I would like to know why it is that you will not 

utilize local law enforcement to apprehend individuals that are illegally in the United States and then promptly move to remove them 

from his country? That is not what is happening in Virginia, I can 

assure you. It is absolutely not what is happening. 

Ms. NAPOLITANO. If I might, Representative, one of the things we 

have done to replace those ineffective 287(g) task forces is the great 

expansion of Secure Communities in the jails themselves, the program where we refer fingerprints both to the criminal database 

and to the immigration database. 

And you will see that our ability to apprehend and remove criminals from the country has actually gone up dramatically because of 

that. 

Mr. GOODLATTE. Madam Secretary, does this mean, your criticism of 287(g) and your cost analysis, does this mean that you will 

remove from the Department of Homeland Security’s website the 

section that refers to 287(g) success stories? 

Ms. NAPOLITANO. You know there may be some success stories, 

but when you look at the numbers, they—— 

Mr. GOODLATTE. Why are you touting them if they are success 

stories in a program that you think is otherwise flawed? 

Ms. NAPOLITANO. I would say I would tell the people who are 

working the website, take it down. 

Mr. GOODLATTE. Yes, you—— 

Ms. NAPOLITANO. It doesn’t work. The program is expensive, and 

it doesn’t work the way Congress intended. 

Mr. GOODLATTE. According to the GAO, over time, Federal surveys have consistently found that the Department of Homeland Security employees are less satisfied with their jobs than the government-wide average. Out of 240 components ranked by the Federal 

Employee Viewpoint Survey throughout the Government, ICE 

ranked 222; FEMA ranked 231; TSA ranked 232; and a category 

collectively called ‘‘All other components’’ ranked 224. 

38 

You have a serious morale problem that has only gotten worse 

since you have taken over. I think you would agree that low morale 

in these positions has the potential to impact how effectively these 

public servants do their job. 

What is the cause of this morale problem? Are there any morale 

problems due to the policies implemented by this Administration 

that prevent agents from doing their jobs? And what are you doing 

to address these serious morale problems? 

Ms. NAPOLITANO. Yes, the morale issue is one that I am quite 

concerned about. We want our employees—good morale, they are 

effective, they are well trained. We have looked into those numbers. 

We have determined that one of the real sources was that our 

first line or mid-level supervisors were promoted without training 

on how to actually be a supervisor. That caused a lot of discontent. 

There are other reasons as well. I meet regularly now, Representative, with our component heads and have directed them, in 

turn, to take all action necessary to do what we must to try to 

bring that morale up. 

We also brought in some experts from OPM to help us, and other 

places. And we have looked at other departments that were able 

to go from low to high. And techniques or things that they did from 

a management standpoint, we intend to deploy those as well. 

Mr. GOODLATTE. Mr. Chairman, my time is expired. I do have additional questions, which I will submit to the Chairman in writing, 

and I am sure that he will submit them to you. 

And, Madam Secretary, I hope you will answer them in a real 

timely fashion, not 9 months after we submitted them, like the last 

time. Thank you. 

Ms. NAPOLITANO. I understand your point. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

Madam Secretary, what do you consider to be timely? Thirty 

days? Two weeks? 

Ms. NAPOLITANO. Some it is 30. Some it is 60. It depends on the 

question. Some requires multiple departments. Some requires new 

sorts of information that we haven’t collected before. 

Mr. SMITH. So 60 at the outset, if multiple departments were to 

be involved in the response? 

Ms. NAPOLITANO. I would commit that we will aim to 60, yes. 

Mr. SMITH. And shorter time for—— 

Ms. NAPOLITANO. And if we have to have more, we will tell you 

why. 

Mr. SMITH. Okay, thank you, Madam Secretary. 

The gentleman from North Carolina, Mr. Watt, is recognized. 

Mr. WATT. Thank you, Mr. Chairman. 

And I think this last exchange may illustrate the concern that 

I was expressing about the gentleman from California’s unanimous 

consent request. I was feeling really bad about it until we got into 

this exchange, and the responses of the Secretary make it clear 

that putting the Administration or any of these departments in a 

30-day straitjacket, as the unanimous consent request would have 

done, is just not viable, although I fully support the Administration 

responding to our oversight and responding to legitimate questions 

that are raised. 

39 

I also want to express my gratitude for your cutting back on the 

287(g) program. I think it was the least successful, biggest abomination of any program that I have observed in our local communities, to turn local law enforcement away from their primary responsibilities into, many cases, just absolute witch hunts, doing 

something that is the primary responsibility of the Federal Government. 

In fact, it so biased me against ICE, it is hard for me to say 

something nice about it. So now I have to go and say something 

nice about it. 

Ms. NAPOLITANO. Can I write it down? 

Mr. WATT. Yes. Actually, I think the efforts that you have made 

in the area that Mr. Goodlatte and I are involved in, in the intellectual property area, of dealing with counterfeit goods and things online, I think while there have been some problems, obviously, I 

think ICE has done a commendable job. 

And to acknowledge the fact that there can be successes and failures at the same time, I have already acknowledged some of the 

failures, but I will just point out the success in North Carolina that 

led to arrests and charges of trafficking in counterfeit drugs, specifically Cialis and Viagra pills that were circulating that were 

counterfeit in North Carolina. And ICE did an exceptionally good 

job. 

Now, having said that, without even asking a question, let me 

say that I also applaud the Administration’s decision regarding the 

young people who are here under the Dream Act category, so to 

speak. If anybody, regardless of what your position is on immigration, if anybody deserves to be treated as if they were not criminals 

it is kids who were brought here at 1 month, 2 years, have no connection to the country from which they were brought, had no responsibility for bringing themselves into this country. 

Their parents, if you consider them irresponsible or renegades, 

we certainly shouldn’t pass that along to their children. The only 

place that they know as home has been the United States of America. If anybody deserves the benefit of this policy, it is these young 

people. 

And I don’t know how anybody can argue with that. I just hope 

you get this program implemented and all the rules in place quickly, so that these kids can get into a normal pattern. 

They have been educated here. The notion that we would invest 

all of this money in them and then send them back to a country 

that they had no connection to just seems to me to be absolute 

folly. And so I want to publicly applaud the Administration and 

you, Madam Secretary, for this change in policy. 

And I hope that at some point we will get around to setting up 

some additional rational immigration policies to set up a comprehensive immigration policy in our country, to get them out of 

this temporary status that you have been able to justify for them. 

With that, Mr. Chairman, maybe I will submit some questions 

and give them 30 to 60 to 90 days to respond also. 

And I do want to encourage you to respond to Mr. Goodlatte and 

my friend from California there, their questions, as timely as you 

can. 

Mr. Chairman, I yield back. 

40 

Mr. SMITH. Thank you, Mr. Watt. 

The gentleman from Ohio, Mr. Chabot, is recognized for his questions. 

Mr. CHABOT. I thank the Chairman. 

And, Madam Secretary, just a few questions. I am trying to see 

around Mr. Chaffetz’s head here, but it is all right. 

I would like to ask about how our Customs and Border Patrol is 

handling counterfeit products coming into our country. Intellectual 

property in the United States is responsible for spurring new industry and developing useful technology and creating jobs. And I 

know we are all focused on how we can get more jobs in this country. 

However, many bad actors are replicating trademarked American 

goods and then shipping them back to the United States for sale 

here. These fake products have a negative impact on the economy 

and, in fact, can be dangerous, oftentimes, to the health and safety 

of the American people. 

The Customs and Border Patrol agents, they generally make the 

first contact when these shipments are coming into the country, 

and it is critical that your officers are able to communicate valuable information with the rights holders, the actual company here 

that would be producing legitimate products, not the fake products 

that are coming in. 

Those are the best individuals who are suited to authenticate the 

products, to make that they are actually real or that they are fake. 

And that is why Congressman Poe, Ted Poe from Texas, and I 

have introduced the Foreign Counterfeit Protection Act, which is 

H.R. 4216. 

And I was wondering, perhaps your staff may have brought that 

to your attention, or if you are at all familiar with the legislation, 

and, if so, whether we can count on your support for it. 

Ms. NAPOLITANO. Well, I am not directly familiar with the legislation, but I am familiar with the issue, which is when we find 

counterfeit products, there had been, this is what I have been told, 

a pre-existing legal opinion that we were barred from telling the 

actual holder of the trademark about the infringing product. 

My understanding is also that that has been revised and 

changed, so that that barrier no longer exists. 

Mr. CHABOT. Yes, and that is the very issue, and it has been improved somewhat. There are still some problems with it. We would 

like to work with you on that, because, as I said, it is very critical 

to creating jobs and protecting the rights of the people here that 

are actually producing the legitimate products. 

I was encouraged to see that your agency issued an interim regulation, that is probably what you were referring to, in April, to 

allow your officers to share information about suspected counterfeits to the trademark owner to help CBP determine if the product 

is, in fact, counterfeit or not. 

However, I am concerned about the interim. it has a 7-day waiting period, whereby importers are given the opportunity to demonstrate that the merchandise does not bear a counterfeit mark. 

And if the impostor demonstrates this, then there can be no meaningful disclosure to the trademark owner and the product will not 

be denied entry. 

41 

While I understand that your agency came up with this procedure as a way to protect the interests of grey market importers, I 

am concerned that, thus far, your agency has unwittingly created 

potentially a giant loophole for the most unscrupulous of counterfeiters. What makes you think that a person willing and able to 

create, for example, a fake product that looks real will not use the 

7-day period to produce phony documents and fake certificates in 

an attempt to show that the counterfeits are genuine? 

And CBP might not be able to seek help from one source who 

knows for sure whether the product or documents are real and that 

is the owner of the trademark. 

This new procedure, whereby the deference is to the importer 

and not the trademark holder, invites, I think, potentially, that 

type of deception creating a loophole, as I indicated, to actually 

usher counterfeits into the country. So we would certainly appreciate your looking into that. 

Ms. NAPOLITANO. Yes, I think that is a very fair point, and I will 

be happy to not only look at it, but work with you on this problem. 

Mr. CHABOT. Okay. And, then, finally, Madam Secretary, I would 

like to turn now to another recent issue with counterfeits coming 

across the border. 

In the latest attempt to essentially rip off U.S. trademarks, it appears that certain foreign criminals have found a new approach, 

that of counterfeit coupons. Last week, there was a police raid in 

Arizona where police confiscated $2 million worth of assets in a 

home-based business, which was responsible for producing and distributing counterfeit coupons on websites, affecting more than 40 

U.S. consumer product manufacturers, including a company based 

in my district, that is Proctor & Gamble. 

And I will wrap it up quickly here, because I know I am almost 

out of time. 

The alleged leader of the operation, Robin Ramirez, is accused of 

bringing in these coupons from overseas in large quantities and 

selling them on her website for 50 percent of the face value. Police 

said the scope of this investigation has an economic impact in the 

hundreds of millions of dollars in losses, and I would just ask you 

to please look into that matter and make sure your agency is doing 

everything possible to, again, protect our businesses here so that 

we can actually create jobs. 

Ms. NAPOLITANO. Yes, I am happy to do so. 

Mr. CHABOT. Thank you very much. 

Mr. SMITH. Thank you, Mr. Chabot. 

Does the gentleman from Virginia have a unanimous consent request? 

Mr. GOODLATTE. Yes, Mr. Chairman. I would ask that the printout that we have here from the department’s website, under the 

ICE section entitled ‘‘287(g) success stories,’’ which has printed out 

six pages of very, very small print, scores of success stories with 

regard to the 287(g) program, be made a part of the record. 

Mr. SMITH. Without objection. 

[The information referred to follows:] 

42 


75154A-1.eps
43 


75154A-2.eps
44 


75154A-3.eps
45 


75154A-4.eps
46 


75154A-5.eps
47 


75154A-6.eps
48 

*The submissions referred to are inserted in the Appendix. See pages 80 to 209. 

**The submissions referred to are inserted in the Appendix. See pages 210 to 228. 

***The submissions referred to are inserted in the Appendix. See pages 229 to 245. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

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

Ms. LOFGREN. Thank you, Mr. Chairman. Before asking any 

questions, I would like to ask unanimous consent to put some material in the record. 

Some have questioned the Secretary’s legal authority to set immigration enforcement priorities and exercise prosecutorial discretion on a case-by-case basis. And so I would like to enter into the 

record the Supreme Court’s recent decision that explains immigration officials have broad discretion, including whether it makes 

sense to pursue removal at all; a memorandum by the Congressional Research Service analyzing the Secretary’s memorandum; a 

May 28, 2012, letter from 100 law professors to our President addressing the executive’s authority to grant administrative relief; a 

November 4, 1999, bipartisan letter establishing prosecutorial discretion as well-established and well-grounded in case law; and a 

November 17, 2000, memorandum by then INS Commissioner 

Doris Meissner laying out the authority for exercising prosecutorial 

discretion. 

Mr. SMITH. Okay, without objection.* 

Ms. LOFGREN. I would also ask unanimous consent to put in the 

record statements from the faith community, including the Evangelical Immigration Table, the U.S. Catholic Conference of Bishops, 

the Evangelical Lutheran Church in America, and the Hebrew Immigrant Aid Society, in support of the President’s Dream Act announcement. 

Mr. SMITH. Okay, without objection.** 

Ms. LOFGREN. As well as letters from labor leaders in support of 

the President’s Dream Act announcement. 

Mr. SMITH. Okay, without objection.*** 

Mr. SMITH. The gentlewoman is recognized for 5 minutes for 

questions. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I am mindful that we are joined today in this hearing by Eliel 

Acosta, who was brought to the United States, by her parents to 

the United States, when she was 3 years old; Hareth Andrade, who 

was only 8 when he was brought to the United States; Excy 

Cuardado, who was only 3 when he was brought to the United 

States; Karen Vallejos, who was just 5 years old when she brought 

to the United States. 

These are wonderful young people who have achieved great 

things in their education. Every time I go to speak to a school, 

whether it is people getting their Ph.D. in Physics or whether it is 

a law school or whether it is a high school, some young person will 

come up and say, ‘‘I am a Dream Act kid.’’ 

And of all of the people who deserve our consideration, it is these 

young people. So I would like to thank you, Secretary Napolitano, 

for the action that you have taken to allow these young people I 

think of as de facto Americans—I mean, this is their country, but 

the papers aren’t in order—for taking the step that you did that 

49 

will allow them to live normal lives until we get our act together 

here in Congress. Thank you very much for that. 

Ms. NAPOLITANO. Thank you, Representative. 

Ms. LOFGREN. I would like to note that, in the process of getting 

our act together, the House did, in fact, pass the Dream Act in December of 2010, and it got 55 ‘‘yes’’ votes in the Senate. But because of their crazy rules, we couldn’t get 60 votes to pass it. 

So, hopefully, we will have an opportunity, once again, to pass 

that Dream Act, and also to reform the law top-to-bottom. It does 

need reform in so many different ways. 

I have a concern that I would like to raise about the implementation of the applications, and it is not about your department, it is 

about people who would prey on young people. 

Every time there is announcement, there are unscrupulous people who will go and try and charge people, notary publics who will 

say you need to pay us this or that, and I am hopeful that the department will take some steps. 

I mean, there is no reason why a de facto American who is an 

18-year-old kid on the honor roll needs to go pay some fee to a lawyer or to a notary public or anybody else to get this application underway. 

Have you thought about some efforts we might make to make 

sure that unscrupulous people don’t take advantage in this situation? 

Ms. NAPOLITANO. Representative, yes, and the whole issue of, 

say, notarios fraud, which has been a perennial problem in immigration, we are trying to address it in a couple of ways: outreach, 

working with different faith-based and advocacy groups, and with 

student groups and others. The application itself is available online. It will be based on existing application forms. There will be 

a fee associated with the application, as I think all of us understand. 

Ms. LOFGREN. That is fine. 

Ms. NAPOLITANO. But we are going to do that, and then I am 

going to reach out to the Justice Department themselves to see if, 

through the U.S. Attorneys’ Office, they can help us in this regard. 

Ms. LOFGREN. I am glad to hear that, and I think it is something 

that Members themselves can help on in their own communities. 

Now, I wanted to talk a little bit about the history of the Dream 

Act, because, for many years, we worked together on this. And I 

will never forget the late Paul Gillmor, who was a very conservative man. There are many things we didn’t agree on. 

But he called me and described a young man in his little town 

in Ohio who was the valedictorian of the high school. He was the 

quarterback on the football team. And he went to go get a document, and it was only then that he was told that he wasn’t born 

in the United States. 

He said, ‘‘Well, I will straighten this out. I will go down to the 

Government, and have the Government straighten this out.’’ So he 

went down the day before Christmas, and they put him in handcuffs, and the little town was outraged. 

And Congressman Gillmor understood. He did a private bill, but 

he also understood this issue in a way what was visceral. And that 

50 

conservative Republican put his name on the Dream Act as a cosponsor. 

So I am hopeful that as we move forward, we can get the kind 

of consensus that we once had on this issue, and that we are able 

to do the right thing, not only for these young people, but for our 

country, because they are a part of a rich future for our country. 

Thank you, Madam Secretary. 

Mr. SMITH. Okay. Thank you, Ms. Lofgren. 

The gentleman from Virginia, Mr. Forbes, is recognized. 

Mr. FORBES. Thank you, Mr. Chairman. 

Madam Secretary, thank you for being here. And I think we all 

know that there are two issues here. One is whether the substance 

of what is being done is appropriate. And the second one is that, 

at least up until a short period of time ago, many of us felt we were 

still a Nation of laws. And we want to make sure that we do what 

we do in a legal manner. 

I know it is always dangerous to put too much credence in the 

words that our elected officials say, but I want to come back to 

something the Chairman said earlier, because this is what the 

President said. 

He said, with respect to the notion that I can just suspend deportation through executive order, that is just not the case, because 

there are laws on the books that Congress has passed. And went 

on and said, there are enough laws on the books by Congress that 

are very clear in terms of how we have to enforce our immigration 

system, that, for me, through simply an executive order, to ignore 

those mandates would not conform with my appropriate role as 

President. 

That he said on March 28, 2011. 

Now my first question for you, so that we can understand, to 

your knowledge, were there any laws that changed between March 

28, 2011, and today that would change what the President said? 

Ms. NAPOLITANO. No. 

Mr. FORBES. Do you feel that the President was inaccurate at 

what he stated on March 28, 2011? 

Ms. NAPOLITANO. Well, I think, Representative, I think it is important to understand what actually occurred here. 

Mr. FORBES. No, I am just asking what the President stated on 

March 28, 2011, regarding an executive order. Was he correct in 

that statement on that date? 

Ms. LOFGREN. Would the gentleman yield? 

Mr. FORBES. I will when I finish my time. 

Ms. NAPOLITANO. As a general matter, yes. 

Mr. FORBES. So as a general matter, he was correct? No laws 

have changed since that time. 

Now, I notice that you said that the memorandum that you 

issued was not an executive order, per se. I don’t know. I am just 

harking back to my old law school days and kind of the bible that 

we had was Black’s Law Dictionary. 

And I look at executive order and the definition there. It says, 

‘‘An order issued by or on behalf of the President, regarding a constitutional provision, law or treaty.’’ 

Was this memorandum that you issued issued on behalf of the 

President or under the authority of the President? 

51 

Ms. NAPOLITANO. It was under my authority as the Secretary, 

setting the priorities for the enforcement of the Nation’s immigration laws in an effort to deal not only with these compelling cases, 

but the continued effort to clear the backlog to deal with the more 

serious—— 

Mr. FORBES. Is it your opinion, Madam Secretary, that the authority that you issued this under as your authority has greater 

authority than the President of the United States? 

Ms. NAPOLITANO. I think, as Representative Lofgren has put in 

the record, there is a lot of authority going far back about the ability of a prosecutor to set priorities. 

Mr. FORBES. That is not my question, though, in all due respect. 

And I appreciate prosecutorial discretion when prosecutors are able 

to do that on a case-by-case basis. 

My question is a very simple one: Do you feel that you have 

greater authority than the President of the United States on this 

matter? 

Ms. NAPOLITANO. Well, this is a case-by-case determination. This 

is a case-by-case determination designed very carefully to be seated 

clearly within prosecutorial discretion precedents. It is not—— 

Mr. FORBES. Madam Secretary, the President announced this 

policy from the Rose Garden. And I know you are saying that this 

was issued by you. But it was the President that announced the 

policy as President of the United States. 

Black’s Law Dictionary says very clearly, if an order is issued by 

or on behalf of the President regarding a constitutional provision, 

law, or treaty. 

Are you saying this was issued not in conjunction with the President of the United States? You didn’t have consultation with him 

about issuing this? 

Ms. NAPOLITANO. This decision came from the Department of 

Homeland Security. The President, obviously, approved of the decision, which is what he announced at the Rose Garden. But the decision had already been announced that morning by myself. 

Mr. FORBES. But the President announced the policy. The President is the one who appointed you, is that not correct? 

Ms. NAPOLITANO. That is true. 

Mr. FORBES. And you take your authority directly from the President and the appointment he made; is that not correct? 

Ms. NAPOLITANO. And the Constitution and laws of the United 

States, that is true. 

Mr. FORBES. And you hold a constitutionally directed office. Can 

you tell me what part of Article 2 endows your authority? 

Ms. NAPOLITANO. I would go to Section 3, which is the obligation 

to carry out the laws faithfully, to execute the laws. 

Mr. FORBES. And once again, it is, as I understand it, the President of the United States, you don’t dispute the fact that he was 

correct when he said he didn’t have authority as President of the 

United States to issue an order to do what you have now issued 

as Secretary of Homeland Security, but you feel that you have that 

authority and that capability to do. 

Ms. NAPOLITANO. We are well-seated in the law; that is correct, 

Representative. 

52 

Mr. FORBES. And again, do you concede that the President did 

not have the authority to issue the order that you issued; correct? 

Ms. NAPOLITANO. That is not what I said. I said an executive 

order from the President was not involved. 

Mr. FORBES. But the President didn’t have authority—could not 

have issued an executive order, according to what you said and 

what the President said, correct? 

Ms. NAPOLITANO. Could he have waved a magic wand and by 

huge category just said, everybody is home-free? No. Can a prosecutor’s office say, on a case-by-case basis, we are going to defer action? Yes. 

Mr. FORBES. Could he have issued an—— 

Ms. NAPOLITANO. Yes. 

Mr. FORBES. Executive order to do what you did? 

Ms. NAPOLITANO. Yes. 

Mr. FORBES. Mr. Chairman, thank you. 

Mr. SMITH. Thank you, Mr. Forbes. 

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

Ms. WATERS. Thank you very much, 

I yield to Ms. Lofgren 30 seconds. 

Ms. LOFGREN. Thank you. 

I just wanted to—the President’s statement has been quoted, but 

only partially, because the rest of the statement is: Now what we 

can do is prioritize enforcement since there are limited enforcement 

resources and say we are not going to go chasing after this young 

man or anybody else who has been acting responsibly and would 

otherwise qualify for legal status if the Dream Act passed. 

So I think that rest of the statement is important. 

I thank the gentlelady for yielding. 

Ms. WATERS. Thank you very much. 

Reclaiming my time, first, Madam Secretary, I am pleased that 

you are here. And I want to congratulate you. I don’t care who did 

deferred action, whether it was you or the President. I am just 

pleased that it was done. It is the right thing to do. It is the fair 

thing to do. And I happily got on the telephone and called many 

of my friends to tell them, who were feeling so at risk having been 

brought to this country at a very early age and then finding that 

they could not participate fully. 

So again, thank you, thank you, thank you. 

Now, having said that, I want to ask you about the H-1B visa 

program. We have a GAO report entitled, ‘‘Reforms Are Needed to 

Minimize the Risks and Costs of Current Program.’’ You know, 

there is conflict in opinions, I guess even in the President’s jobs 

panels about this program. 

But I am concerned about what is said in this report. For example, and I am going to read directly from it: Restricted agency oversight and statutory changes weaken protections for U.S. workers. 

Elements of the H-1B program that could serve as worker protections such as requirement to pay prevailing wages, the visas temporary status, and the cap itself, are weakened by several factors. 

First, program oversight is fragmented and restricted. 

It goes on to talk secondly about the H-1B program lacks a legal 

provision for holding employers accountable to program requirements when they obtain H-1B workers through a staffing company. 

53 

And it describes these staffing companies. 

And thirdly, statutory changes made to the H-1B program have, 

in combination and in effect, increased the pool of H-1B workers 

beyond the cap and lowered the bar for eligibility. 

Here is my concern. You know, I know that we try sometimes to 

have all things all ways in this country when we are trying to help 

people and companies, et cetera. We have an employment program 

in America. We have some serious education problems. 

We are told by those who try to protect the program and expand 

the program that we have occupations that are desperately needed 

to do some of the jobs that are needed, perhaps in Silicon Valley 

and some other places. And they have to look to importation of 

workers to do that. 

But also, some of us maintain that many of these companies 

have the kind of campuses that should include more training, more 

development. And we want our education system to put more people in the STEM pipeline and all of that. 

So, with these kind of concerns, what can you do to ensure that 

the oversight that is needed is done? And those of us here at this 

level of Government making public policy, we have to weigh in on 

whether or not we want to continue to support, expand, or what 

have you. 

But what role do you play in this oversight? 

Ms. NAPOLITANO. Representative, I think I am not personally familiar with that GAO report, but I will follow up, and we will follow up with you on what we have done in response and pursuant 

to the recommendations in it. 

Ms. WATERS. Thank you very much. I look forward to it. 

I yield back the balance of my time. 

Mr. SMITH. Thank you, Ms. Waters. 

The gentleman from Iowa, Mr. King, is recognized. 

Mr. KING. Thank you, Mr. Chairman. 

And thank you, Madam Secretary, for your testimony here today. 

A number of curiosities have arisen, listening to your responses. 

And one of them is, did you have discussions with President 

Obama with regard to the policy within the June 15 memorandum 

prior to the issuing that decision? 

Ms. NAPOLITANO. I did not. 

Mr. KING. Or with members of the White House that would have 

direct access to the President? 

Ms. NAPOLITANO. I informed the White House prior to the release 

of the memorandum that that was my intent to do so. But the internal meetings that we worked on and how we developed the program started in early May. 

Mr. KING. Does that mean that your staff had communications 

with White House staff with regard to this, and you had a sense 

that the President supported this decision? 

Ms. NAPOLITANO. Yes, they raised no objection to my intent to 

prioritize cases in the fashion that we have. 

Mr. KING. Were you surprised when you issued the memorandum 

that the President had a press conference scheduled within hours? 

Ms. NAPOLITANO. No. 

Mr. KING. That was coordinated with the DHS and the White 

House? 

54 

Ms. NAPOLITANO. I don’t think it was coordinated, but it is a 

major announcement as to how we are prioritizing immigration enforcement, and it is appropriate for the President to speak to it. 

Mr. KING. And you pointed out Article II, Section 3 in the Constitution, and thought I had that memorized, and I looked it up, 

and I think I did. ‘‘He shall take care that the laws be faithfully 

executed.’’ I believe that is the section you are referring to when 

you assert your responsibility under the Constitution. 

Ms. NAPOLITANO. That is one of them, yes. A primary one, yes. 

Mr. KING. And if Congress is going to direct—Congress writes 

the laws, the President has been clear on that. I think you agree 

with the statement the President made, even though it is uncomfortable to see that contradiction today. 

But if Congress is to write a law that directs the executive 

branch to take care that the laws be faithfully executed, how would 

we write that bill if we wanted those laws enforced that you have 

decided now will not be. 

Next question will be behind this one. 

Ms. NAPOLITANO. Well, I can’t speculate as how you would write 

that, but I would simply say, based on my history as a prosecutor, 

there are lots of laws on the books within the framework of which 

prosecutors make—— 

Mr. KING. We understand prosecutorial discretion here. There 

have been many discussions on it. When I look through the reference to prosecutorial discretion on the June 15 memo, I see it 

mentioned four times in here. 

I see the individual basis mentioned six or seven times. It looks 

like almost as if this is written anticipating the constitutional objection that I assure you I will bring. 

There is a separation of powers. And the executive branch cannot 

legislate by executive order, by memorandum. I accept Mr. Forbes’ 

definition of executive order. But we cannot allow the Article II executive branch legislate by executive order, we must stand and assert this legislative authority that we have. 

And as I read this memorandum, you say in it, only the Congress 

acting through its legislative authority can confer these rights. But 

yet you have directed the director of USCIS to issue work permits 

for people who fit within four classes. 

This isn’t an individual directive. It establishes four classes within it. And it directs USCIS to issue a work permit that does not 

exist. 

And our visas and work permits are creations of Congress, not 

the executive branch. 

And I would ask you, will you rescind this before we have to take 

this to court? 

Ms. NAPOLITANO. Representative, I will not rescind it. It is right 

on the law. It is the right policy. It fits within our prosecutorial priorities. And although it came out of the Department of Homeland 

Security, let me say that President is foursquare behind it, embraces this policy as the right thing to do. 

Mr. KING. The President, foursquare in front of the Constitution, 

challenged it by myself and many Members of this Congress, we 

have to assert this authority. The Founding Fathers envisioned 

that each branch of Government would carefully protect the auVerDate Aug 31 2005 10:39 Oct 11, 2012 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\FULL\071912\75154.000 HJUD1 PsN: DOUGA
55 

thority vested within this Constitution. And when you cross those 

lines and those bounds, and there is a whole list of things that 

have been done by this President, this one is the most clear. 

I accepted the prosecutorial discretion when it dealt with individuals. I do not when it deals with groups of people that are created 

by a memorandum. And I do not when it deals with a work permit 

that is ordered to be issued that doesn’t exist in the United States 

Code. And that is the province of Congress. 

So I thank you for being here today, but we will see each other 

down the line in litigation. 

Mr. SMITH. Thank you, Mr. King. 

The gentleman from Puerto Rico, Mr. Pierluisi. 

Mr. PIERLUISI. Thank you, Mr. Chairman. 

Welcome, Madam Secretary. Before I address the topic that I 

would like to discuss, let me welcome the young Hispanics who are 

here with us this morning. 

And let me tell you, what you have seen, you have seen Secretary Napolitano standing firm on the deferred action policy that 

the Federal Government is about to implement. That means that 

your dreams are very much alive. 

And now, Secretary, as you probably expected, I want to raise 

the same issue with you this morning that we discussed the last 

time you appeared before the Committee, namely the drug-fueled 

public safety crisis in Puerto Rico. 

First, I want to express my profound gratitude to you and your 

team for traveling to Puerto Rico last week in order to investigate 

the situation first hand and to meet with Governor Fortuno and 

myself. I think our meetings were positive and productive, and I 

hope you agree. 

On Tuesday, I wrote you a letter, following up on your visit. In 

addition to thanking you for your visit, I noted that your presence 

in Puerto Rico underscored the Federal Government’s commitment 

to working with local law enforcement to enhance and expand our 

efforts to combat drug trafficking and related violence on the island. 

I said that I was heartened to hear you declare that Puerto Rico’s 

public safety crisis has your full attention. And that our motto 

moving forward will be, let’s fix this. 

I also expressed agreement with your statement that the definition of success should be significant and sustained reduction in the 

number of homicides committed on the island. 

I think we all recognize the need to act with a sense of urgency 

in light of the severity of the situation. In my letter, I strongly endorsed your plan to promptly develop a law enforcement strategy 

specifically tailored for Puerto Rico and the neighboring U.S. Virgin 

Islands. 

I believe this strategy will ensure that our efforts are as well coordinated and effective as possible and will help to identify gaps in 

the current approach that can be filled. 

I respectfully ask that this strategy be coordinated with the Department of Justice since DOJ personnel are working side by side 

with your men and women on the front lines of this fight. 

Finally, I note that any meaningful strategy will require a reasonable allocation of personnel and resources, whether on a temVerDate Aug 31 2005 10:39 Oct 11, 2012 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 H:\WORK\FULL\071912\75154.000 HJUD1 PsN: DOUGA
56 

porary or an enduring basis. In the 5-year period between 2007 and 

2011, the number of homicides nationwide fell by 20 percent. Yet 

in that same period, the number of murders in Puerto Rico rose by 

over 55 percent. 

Nevertheless, the Federal law enforcement footprint on the island has not evolved in the face of these profoundly changed circumstances. 

It is my fervent hope that the forthcoming law enforcement strategy will be action-oriented, and will recognize that an enhanced 

Federal response is required, if we are to be successful in this 

shared endeavor. 

So, Madam Secretary, I just want to give you the opportunity to 

tell me and my fellow Members of this Committee in broad terms 

how you envision moving forward on this issue. 

And I thank you again. 

Ms. NAPOLITANO. Well, thank you, Representative. 

Yes, I went to Puerto Rico, because I am troubled by a number 

of things in terms of the crime situation there, but the homicide 

rate being twice that of Mexico is a real eye opener. 

And so on my return, I have already met internally with our 

staff. We have appointed an internal person to help coordinate. We 

will reach out to DOJ and, in particular, to the U.S. Attorney in 

Puerto Rico, who is very familiar with the local situation. 

So I think it is going to take all of us working together to get 

a handle on this and get that crime rate down, but that is what 

our intent is. 

Mr. PIERLUISI. Thank you so much. I yield back. 

Mr. SMITH. Thank you, Mr. Pierluisi. 

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

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you, Madam Secretary, for being here. 

When you were here before, back in October, we discussed Mr. 

Elibiary, and the week before he had been online using the secret 

security clearance that you had given him when you placed him on 

the Homeland Security Advisory Council. And he had used that to 

access the State and local intelligence community of interest classified material database and downloaded material. And we had information that he had shopped that, trying to claim Texas was 

Islamaphobes because they were concerned about radical Islamists. 

But since that time, you told me personally at that time that you 

were going to look into it. You weren’t going to appoint somebody, 

you, yourself, were going to look into it. 

So what did you find out? 

Ms. NAPOLITANO. I found out that the statements that have been 

made in that regard are false. They are misleading and objectionable. And I think they are wrong. 

Mr. GOHMERT. Okay, then, madam, you need to know that you 

have people who are lying in your department, because Texas Department of Public Safety has been told the investigation was done. 

He did access the classified information with his own private computer. He did download the documents that we knew he did. And 

the one thing they could not confirm, because they didn’t talk to 

the reporter or the people that he shopped the story to, they 

couldn’t confirm that he shopped the story. 

57 

But are you saying before this Congress, right now, that as Secretary of Homeland Security, that it is a lie that Mohamed Elibiary 

downloaded material from a classified website using the secret security clearance you gave him? Are you saying that is a lie? 

Ms. NAPOLITANO. I am saying that isn’t accurate. That is correct. 

Mr. GOHMERT. All right, what is inaccurate about that? 

Ms. NAPOLITANO. A number of things. 

First of all, we have several people on the Homeland Security 

Advisory Committee who aren’t Muslim. They have been helping 

law enforcement for a long time. Mr. Elibiary himself was recognized by the FBI for his—— 

Mr. GOHMERT. I didn’t say anything about that. So if you could 

confine your answer to what I said and what you find misleading 

in it. 

Ms. NAPOLITANO. Well, one of the things I find misleading is that 

he somehow downloaded classified documents. 

Mr. GOHMERT. So you are saying that the State and local intelligence community of interest database is not classified? 

Ms. NAPOLITANO. I am saying that he, as far as I know, did not 

download classified documents, and I—— 

Mr. GOHMERT. Now one of the games that gets played sometimes 

by people who come up here and testify is that they have somebody 

not provide them adequate information so that they can come in 

here and say, so far as I know, not to my knowledge, that kind of 

thing, and they obscure the truth. 

Has Elibiary’s status on the Homeland Security Advisory Council 

changed? 

Ms. NAPOLITANO. No. 

Mr. GOHMERT. It did not bother you that he accessed information? 

Ms. NAPOLITANO. He accessed some information. What bothers 

me, quite frankly, are the allegations that are made against anyone 

who happens to be Muslim. 

Mr. GOHMERT. Well, the allegations are not because he is Muslim. You follow me around the world. You see me hugging Muslims 

around the world, because the ones I hug are our friends. 

And this Administration seems to have a hard time recognizing 

members of terrorist groups who are allowed into the White House. 

You are aware of that happening, aren’t you? 

Ms. NAPOLITANO. Absolutely not. 

Mr. GOHMERT. So, all right. The evidence speaks for itself. Obviously, you are kept in the dark on a lot of these things. 

Ms. NAPOLITANO. Representative—— 

Mr. GOHMERT. Are you aware of what the Freedom and Justice 

Party is in Egypt? 

Ms. NAPOLITANO. Representative—— 

Mr. GOHMERT. Are you aware of what the Freedom and Justice 

Party is in Egypt? 

Mr. CONYERS. Mr. Chairman, could we have regular order? 

Mr. GOHMERT. It is a simple question. It does not afford an interruption. 

Is she aware of what the Freedom and Justice Party is in Egypt? 

Mr. SMITH. Would the Secretary respond to the question? 

Ms. NAPOLITANO. Yes. 

58 

Mr. GOHMERT. Are you aware that Mr. Elibiary’s foundation that 

has had their charter pulled because they failed to provide the information that the Government requires to keep their 501(c)(3) status? Are you aware that that was, before the 501(c)(3) status was 

pulled, called the Freedom and Justice Foundation? 

Ms. NAPOLITANO. Representative, I am not going to get into a debate about some of the—— 

Mr. GOHMERT. I am asking you if you know simple fact. 

Ms. NAPOLITANO. I would like to—I would like to—— 

Mr. GOHMERT. You say you are not going to get into debate. I 

don’t want to debate. This is a question and answer. 

Are you aware of that being the name of his foundation that has 

now had the 501(c)(3) status pulled? 

Ms. NAPOLITANO. The insinuation that I—— 

Mr. GOHMERT. Could you answer the question? There is no insinuation. 

Mr. CONYERS. Mr. Chairman, can we have regular order? 

Mr. SMITH. I will allow the witness to answer the question, yes. 

Mr. GOHMERT. Please, answer just the question. 

Ms. NAPOLITANO. Representative, with all respect, I believe you 

are insinuating that I and members of my staff—— 

Mr. GOHMERT. I am not insinuating anything. I am asking a direct question. 

Ms. NAPOLITANO. Well, Mr. Chairman—— 

Mr. GOHMERT. You are not answering the question—— 

Mr. CONYERS. Mr. Chairman—— 

Mr. GOHMERT. The question is very simple. Were you aware of 

his Freedom and Justice Foundation—— 

Mr. SMITH. Let me say to the gentleman from Texas, I don’t 

think that he is going to get a different answer. 

Mr. GOHMERT. Then I would ask the assistance of the Chairman 

to direct the witness to answer the question as asked. 

It is very simple. It is yes or no. Was she aware, or was she not? 

Mr. SMITH. We will give the witness an opportunity to give a 

final answer, yes. 

Ms. NAPOLITANO. Mr. Chairman, I would just like to say for this 

Committee, which is a—— 

Mr. GOHMERT. That does not sound like a yes or no. It is nonresponsive. 

Mr. CONYERS. Mr. Chairman, regular order. 

Mr. GOHMERT. It will not be given on my time. 

Mr. SMITH. Madam Secretary, if you will—— 

Mr. GOHMERT. An answer that is non-responsive. 

Mr. SMITH. Okay, the answer may be non-responsive. 

Madam Secretary, do you have anything to add? 

Ms. NAPOLITANO. Mr. Chairman, I didn’t know this was a court 

with rules of evidence. I was hoping I could explain my answer. 

Mr. SMITH. Do you want to proceed to do just that? 

Ms. NAPOLITANO. Thank you, Mr. Chairman. 

Mr. GOHMERT. Mr. Chairman, my question was a yes or no—— 

Mr. CONYERS. Mr. Chairman, regular order. 

Mr. GOHMERT. Anything but a yes or no answer is—— 

Mr. SMITH. We will allow the witness to answer the question. 

59 

Mr. GOHMERT. And the reason there are rules of evidence is so 

witnesses just don’t go off on a lark—— 

Mr. CONYERS. Mr. Chairman, can we have regular order? 

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

Does the witness have anything to add? 

Ms. NAPOLITANO. Yes. 

This Committee has a long and proud tradition. These kinds of 

insinuations demean the Committee. The insinuation that I or my 

staff would allow someone who is a terrorist to infiltrate—— 

Mr. GOHMERT. I have not insinuating that Elibiary—— 

Mr. CONYERS. Mr. Chairman, regular order. 

Mr. GOHMERT. He is very nice gentleman. I met him a couple of 

times. He is a nice guy. 

Mr. SMITH. Let me say to the gentleman from—— 

Mr. GOHMERT. There is no such insinuation. 

Mr. SMITH. We will have regular order. 

Mr. GOHMERT. The Secretary of Homeland Security—— 

Mr. SMITH. We will have regular order. 

Mr. CONYERS. Mr. Chairman? 

Mr. GOHMERT [continuing]. To come in here and make such an 

allegation that—— 

Mr. CONYERS. Mr. Chairman, can we have regular order? 

Mr. SMITH. The Committee will be in order. I understand the 

frustration of the gentleman from Texas, but I don’t believe he is 

going to get a different answer and the gentleman’s time has expired. 

Mr. CONYERS. And he is out of order, too. 

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

Mr. POE. Thank you, Mr. Chairman. 

Madam Secretary, thank you. 

Are you familiar with these people or these cases, the Lois Decker case in New York, Ashton Cline-McMurray case in Massachusetts, the Binh Thai Luc case in California? Are you familiar with 

those names? 

Ms. NAPOLITANO. I may know of them by different descriptors. 

Mr. POE. Let me briefly go through these, and I want to talk 

about specifically criminals. 

As a former judge and prosecutor, as you were, crime is something that none of us like, but let’s center in on some criminals in 

the United States that are still here, that don’t go home when they 

are supposed to. 

Lois Decker was a grandmother and a mother in New York when 

she was murdered, a 73-year-old mother murdered by a citizen of 

Bangladesh, was illegally in the United States. He was a convicted 

felon. 

The system worked. While in prison, he was ordered back to 

Bangladesh. He never went back, because Bangladesh wouldn’t 

take him. 

He gets out of prison. He murders Lois Decker, a 73-year-old 

grandmother, steals her car and some other things. 

Ashton Cline-McMurray, 16-year-old child coming home from a 

football game was murdered by—or was beaten by an individual 

from Cambodia. Same situation. Never went back when he was 

supposed to. 

60 

Binh Luc from California was sent to prison for armed robbery, 

gets out of prison. He was ordered to go back to Vietnam. They 

never took him back. He gets out. He murders five people in San 

Francisco. 

We have this recurring issue of criminals committing crimes 

from foreign countries. The law requires they go back home. They 

don’t take them back. 

We actually have a law that says there is supposed to be some 

diplomatic—diplomatic visas are supposed to be rejected for people 

who don’t go back. 

In my investigation of the law, I can only find one time since the 

law was written that one country was sanctioned for failure to take 

back lawfully convicted criminals from their country by denial of 

visas, and that was Ghana. It happened and they took back 112 

after we sanctioned them. 

The way I understand the law, your department is to let the 

State Department know that these countries are stonewalling the 

system, I think gaming the system, won’t take back their lawfully 

convicted—I mean, why would they take them back? They have 

enough criminals of their own. May as well leave them in the 

United States. Make them our problem. 

But I only see one case, and that was several years ago. 

But getting to the concern I have, why isn’t that happening more 

often that the country is sanctioned by diplomatic visas for failure 

to take back lawfully convicted felons, when, if I read the law, it 

is a requirement? It says shall take back, or visas will be denied 

to these countries, diplomatic visas or other kinds of visas. 

And I don’t see that happening, even though the law says shall. 

Information from you to the State Department, the State Department is supposed to reject the visas. It isn’t happening. 

Can you help us out with that, and tell us how we can solve this 

problem? 

Ms. NAPOLITANO. Representative, you have really identified two 

problems. One is a Supreme Court precedent called Zadvydas, 

which says we cannot hold people indefinitely, that there is a time 

limit on that. And the other is the practical problem that there are 

few countries in the world to which we seek to remove individuals 

who would refuse to accept them. 

The State Department is well aware of this. I think how they are 

proceeding and the moves they are making is something that you 

should address to them, but they are well aware of the problem. 

Mr. POE. Well, what I hear from the State Department is, they 

are passing the buck. They say they don’t get the information from 

you, the countries that are non-compliant. That is the answer I get 

from them, so that is why I am asking you the question. 

Are you furnishing them, the State Department, the information 

of these countries who refuse to take their citizens back? The issue 

of a 6-month detention is not what I am concerned about. That is 

the law. I understand that. We can’t keep them in jail. They served 

their time. 

That is not the issue. The issue is they get out. And then they 

are our problem. 

61 

The State Department gives me the information they don’t get 

the information from you. Is your department getting that information to State about noncompliant countries? 

Ms. NAPOLITANO. Well, we must be, because the State Department is indeed taking action and issuing demarches and other 

things to some of these countries. The diplomatic tools they are 

using is something you should address to them. But they must be 

getting information, because they are moving. 

Mr. POE. Do you know of any other country that has been sanctioned and we refused to give them visas because of their noncompliance with—— 

Ms. NAPOLITANO. I do not know of any. 

Mr. POE. Other than Ghana? 

Ms. NAPOLITANO. I do not know of any. 

Mr. POE. I have more questions, but I will submit them for the 

record, Mr. Chairman, because I know you won’t let me keep talking. 

Mr. SMITH. Thank you, Mr. Poe. 

The gentleman from Utah, Mr. Chaffetz, is recognized. 

Mr. CHAFFETZ. Thank you. 

Thank you, Madam Secretary. I appreciate you being here. Certainly, 40 appearances is an impressive number. We do appreciate 

you being here. 

I want to talk very quickly, if I can. I actually sponsored a bill, 

H.R. 3012. It is Fairness for High-Skilled Immigrants Act, which 

got rid of the per country cap limitations. And we passed that out 

of this Committee. We passed it out of the House. It is now awaiting action in the Senate. 

I just wanted to confirm that the Administration’s view on removing the per country caps and the appointment-based green card 

side was something that the Administration would be okay with. 

Ms. NAPOLITANO. I will have to look into that. But that sounds 

right. But let me verify that. 

Mr. CHAFFETZ. Okay. I want to move now to the Southwest border, because I am concerned about—the President, yourself, the attorney general, have all said that the Southwest border is more secure than it has ever been before. 

In Operation Fast and Furious, the Government purposely allowed nearly 2,000 weapons to get into the hands of the drug cartels. How many of those weapons were detained at the border? Do 

you have any—— 

Ms. NAPOLITANO. I couldn’t answer that. 

Mr. CHAFFETZ. My understanding is that there hasn’t been one 

single gun from Operation Fast and Furious apprehended by the 

Homeland Security or any other law enforcement, other than the 

two weapons that were found at the scene at the death of Brian 

Terry. 

Am I wrong in that? 

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

Mr. CHAFFETZ. Let me ask you this, you know one of the things 

that has been touted, as you look at the different sectors around 

the country and the protection that we are trying to provide this 

country, the Tucson sector is by far the most problematic. 

62 

My question for you is, if the number of detentions is going up, 

does that mean that the border is more secure? Or if the number 

of detentions at the border is going down, does that mean that the 

border is more secure? Which one is it? 

Ms. NAPOLITANO. It is down. And let me explain. 

Mr. CHAFFETZ. I know it is down, but does that mean it is more 

secure, or would more apprehensions indicate that it is more secure? 

Ms. NAPOLITANO. No, the way it works is that—and this has 

been historically done because these are difficult things to measure 

with absolutes. But the apprehension numbers are used as a proxy 

for how many are attempting. We actually thing that we are now 

picking up almost everybody who is trying to cross that border illegally. And we can look at that, because we are looking at crime 

numbers in Phoenix, stash house numbers in Phoenix, other kinds 

of indicias to whether illegal immigrants are trying to get into the 

interior of the country. 

Mr. CHAFFETZ. In Phoenix, the crime rate between 2008 and 

2009 was actually up 6 percent. So to claim it is actually more secure—I look at Nogales. You look at their crime rate from 2009 to 

2010. 

Now Nogales is the biggest city right on the border in the most 

problematic sector. You look at 2009 to 2010, the total number of 

offenses recorded is up 92 percent. 

Ms. NAPOLITANO. Well, if I might, since I know the Arizona situation very, very well and pay a lot of attention to it, the Phoenix 

violent crime rate, kidnappings, stash houses, the other things associated with the illegal immigrant trade, way down; violent crime 

rate, way down. 

Nogales, actually, I would be interested in that number, because 

it doesn’t correspond to any other number for Nogales I have seen. 

And it doesn’t correspond to what the sheriff tells us. 

Mr. CHAFFETZ. Well, this is from the Nogales Department of Police. Let me read some numbers: 2009 to 2010, burglary up 82 percent, thefts up 113 percent, thefts from auto up 132 percent, grand 

theft auto up 70 percent, aggravated assaults up 76 percent, assaults up 81 percent, and damage to property up 81 percent. It 

doesn’t sound like this is the most secure border that we have ever 

had. 

Ms. NAPOLITANO. Well, I will tell you this, knowing Nogales as 

I do, there are probably a number of reasons for that. And I would 

challenge the accuracy of those numbers, for a number of reasons. 

Why don’t you send me a question, and I will be happy to answer 

it for you. 

Mr. CHAFFETZ. That would be great. 

Do we have operational control of the border yet? 

Ms. NAPOLITANO. I think this Southwest border is as secure as 

it has been in decades. 

Mr. CHAFFETZ. What percentage of the border is secure? 

Ms. NAPOLITANO. Well, I would say that we have the ability to 

move men, materiel, and air cover through the entire Southwest 

border. 

63 

Mr. CHAFFETZ. But we haven’t yet recovered a single gun from 

Fast and Furious even though we purposely gave the drug cartels 

2,000 weapons. 

This is the concern, and I would appreciate the ongoing dialogue, 

because I would disagree with the analysis that it is more secure 

than ever when you have places like Nogales with increasing crime 

rates. 

Mr. SMITH. Would the gentleman yield? 

Mr. CHAFFETZ. Yes. 

Mr. SMITH. Madam Secretary, I wanted to follow up on a couple 

of things you just said in response to the gentleman from Utah’s 

questions. 

The Government Accounting Office last year said that only 40 

percent of the border was under operational control. 

Ms. NAPOLITANO. Yes, that—— 

Mr. SMITH. Do you disagree with that? 

Ms. NAPOLITANO. Yes, and it is—unfortunately, it gets into government-ese and different—— 

Mr. SMITH. Okay, Well, government—I have great faith in the 

Government Accounting Office. They are objective. They are not 

under the thumb of the Administration. 

Ms. NAPOLITANO. Yes. 

Mr. SMITH. But the other thing I wanted to make sure I heard 

correctly, you said that you thought that virtually everybody crossing the border illegally was being picked up? 

Ms. NAPOLITANO. In some areas, yes. 

Mr. SMITH. Oh, in some areas. I don’t think you made that clear 

a while ago, 

Ms. NAPOLITANO. Okay. 

Mr. SMITH. Because believe me, in South Texas, the Border 

agents I talk to still think that two to three to four individuals are 

getting across the border illegally for every one apprehended. 

Ms. NAPOLITANO. Well, Mr. Chairman, I think the head of the 

CBP or Border Patrol would be happy to provide you with a briefing. But this is the first time we have been able—we have enough 

manpower and materiel, first time where we can actually get ahead 

of changing traffic. And so we are surging in South Texas. 

Mr. SMITH. In what areas do you think you are picking up virtually everybody coming across the border illegally? 

Ms. NAPOLITANO. Oh, I would have to give you a list, but at least 

one of the Arizona sectors, I think we are getting virtually everybody. 

And it is certainly more than one in three, which was the typical 

statistic used in the past. 

Mr. SMITH. Okay. For you to say you are picking up virtually everybody certainly is not true. South Texas, I doubt that it is true. 

Southern California—— 

Ms. NAPOLITANO. We are putting a lot of effort into South Texas 

now, Mr. Chairman. 

Mr. SMITH. Well, as they say, I am going to rely on the testimony 

of the Border Patrol agents. 

I thank the gentleman—— 

64 

Mr. CHAFFETZ. Mr. Chairman, to suggest that we are picking 

up—that there is no illegal immigration going on in Arizona is a 

joke. An absolute joke. 

Ms. NAPOLITANO. Mr. Representative, that is not an accurate 

summation of what I said. I said, in one of the sectors, I think we 

are getting virtually all. I did not say—— 

Mr. CHAFFETZ. In Yuma? 

Ms. NAPOLITANO. Yuma sector, I think we are getting virtually 

all. I think the Tucson sector is a very active sector. 

But when I compare the numbers in Tucson sector now to what 

they were a few years ago, there is almost no comparison. It is 

night and day. 

Mr. SMITH. Okay. 

Mr. CHAFFETZ. I wish I had more time, but—— 

Mr. SMITH. Please submit numerous questions. 

The gentleman from South Carolina, Mr. Gowdy, is recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Good afternoon, Madam Secretary. 

You mentioned the term prosecutorial discretion eight times in 

a two and a half page memo, so I want to ask you about that 

phrase, because it was important enough to use multiple times. 

And prosecutors do have a lot of discretion. We have the discretion, as you know, whether to indict; when to indict; in some states, 

when to call the case for trial; to sentence bargain; to charge bargain. 

But I am interested in whether or not there are any limits to 

prosecutorial discretion, because I can tell you, Madam Secretary, 

I had to prosecute a lot of cases where I disagreed with the underlying law. I never understood or agreed with the disparity in cocaine base and cocaine powder. The entire time I prosecuted drug 

cases, I never agreed with the sentencing disparity. It never entered my mind to subordinate the legislative intent with my own. 

And I would say the people who think that they benefit from 

these episodic exceptions to the administration of law equally to be 

careful. Today it may benefit you; tomorrow it may not. 

And with respect, their defense is not—this Administration or 

even your department—their defense is the fact that we are a Nation of laws and not a Nation of men or women, a Nation of laws. 

So let me ask you this. If the DEA administrator decided that 

he thought marijuana should not be criminalized, does he have the 

ability, the power, the authority to no longer prosecute marijuana 

cases? 

Ms. NAPOLITANO. Well, I think there are plenty of examples 

around the country where marijuana cases, particularly low-level, 

personal possession cases, are not being prosecuted at all, even 

though the law is still on the books. 

Mr. GOWDY. I asked if the DEA administrator had the authority 

to, by memo, say we are not going to prosecute marijuana cases 

anymore, because we do not agree with the criminalization of marijuana? 

Ms. NAPOLITANO. Well, I think the DEA administrator has the 

right as part of prosecutorial discretion to say what cases will be 

prioritized and what will not be, and how those lower priority cases 

will in fact be handled. That is what happened here. 

65 

Mr. GOWDY. I am not talking about case-by-case, because the 

truth is, Madam Secretary, you already had the authority to decide 

case-by-case. 

In other words, there was no need for your memo. This memo 

gave you no more authority than you had before you drafted it, 

which leads some of us to conclude that it was a political memo 

and not a law enforcement or a legal one. 

Can you understand the skepticism of some of us? You already 

had the authority to decide on a case-by-case basis. So why publicize it, why announce it to the world, unless it was for political 

purposes? 

Ms. NAPOLITANO. Well, in fact, it is the outgrowth of several 

years. And one of the things that—there was a 2010 memo on our 

priorities. There was a 2011 memo on prosecutorial discretion. 

Then we began going case-by-case through the 350,000 cases already in the backlog. We found that, in doing so, that wasn’t 

enough to really clear out and get out of the huge backlog that we 

have in lower priority cases. 

This memo takes the lowest of the low-priority cases, young people not of their own volition, they are already invested—— 

Mr. GOWDY. I am familiar with the policy. 

Ms. NAPOLITANO. This is the way we are going to handle this. 

Mr. GOWDY. I am familiar with the policy, and my response to 

that is, if you are so right on the policy, then you ought to be able 

to convince the people who pass the laws, that that is a legislative 

issue. It is not an executive branch issue. 

I am sure that you prosecuted 924(c) cases when you were the 

U.S. Attorney, and certainly your staff did. That is an example of 

Congress saying to the judge, you have no discretion when it comes 

to sentencing. It is going to be 60 months for a garden variety 

924(c) regardless of whether or not you think that ought to be the 

sentence. 

And my guess is, I don’t know this, my guess is when you were 

the U.S. Attorney in Arizona, if a judge departed too far below the 

guidelines, you would appeal that judge, because that was outside 

his or her discretion. 

My question to you is, what is our remedy, as lawmakers, as legislators, when you ignore laws that have been passed? 

What is our remedy? To cut off the funding? To direct to you, you 

have to prosecute this category of cases, because the explanation 

that I have heard is one of resources, that we don’t have the resources to prosecute this category of case? 

And, Madam Secretary, tomorrow it may be another category of 

case, and then the day after another category of case. So, at first 

blush, it strikes me, it takes as many resources to identify whether 

your memo applies or not as it would to prosecute the case. How 

long have they been in the country? What is their educational 

background? What is their age? Whether or not they have a record 

of serious misdemeanors? 

All of that requires resources, your agency’s resources. So it 

strikes me as—I am not going to use the word—— 

Mr. LUNGREN [presiding]. The gentleman’s time has expired. The 

witness can answer the question. 

66 

Ms. NAPOLITANO. Well, I think you and I clearly disagree on 

what discretion means and how it can be applied. 

But on the resource question, as I mentioned earlier, there will 

be a fee associated with the process and the adjudication of the 

process. So this is not anticipated to come out of taxpayer funds. 

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

The gentlelady from California, Ms. Chu, is recognized for 5 minutes. 

Ms. CHU. Thank you. 

Madam Secretary, first of all I want to commend ICE’s intellectual property enforcement work, particularly through Operation In 

Our Sites. These efforts are protecting American consumers and intellectual property owners from fakes and dangerous goods, including counterfeit drugs that are sold online by criminal enterprises, 

as well as copyright infringing works, such as movies and TV 

shows that are created by my constituents in my district in Southern California. 

And you have had some investigations that have been very important for our area; for instance, an investigation last year which 

led to prison sentences for owners of a Los Angeles jewelry store 

who illegally imported and sold counterfeit designer jewelry, some 

of which tested positive for hazardous levels of lead. In fact, the lab 

tests showed that there was nearly 20 times the amount lead 

deemed safe by the Consumer Product Safety Commission for handling by children. And, despite that, these items were labeled leadfree. So you really solved and were able to attack a terrible problem there. 

I also want to applaud you for the announcement with regard to 

our Dream Act students who were brought here by their parents 

and came here without documentation through no fault of their 

own, and to have grown up in the United States and want to contribute to this country. 

In fact, we have Dream Act students right here in the audience. 

This means a lot them. The policy will help to ensure that we don’t 

focus our limited taxpayer resources on individuals who don’t pose 

a threat to our country and who want to give their heart to this 

country that they call home. 

And my question has to do with immigration courts. As a longtime prosecutor, you know that you can’t enforce a law and prosecute people effectively if you can’t get on the court’s dockets. Our 

immigration court system is incredibly backlogged. Right now, 

there are more than 300,000 pending cases. 

If you are an ICE trial attorney in Phoenix who is trying to remove someone who is a high enforcement priority, you are going to 

have to wait until the year 2018 to get a court date for the merits. 

In El Paso, you have to wait until the year 2016 to even get into 

the court for a master calendar hearing to set a schedule for the 

case. That doesn’t make sense. 

Can you describe what DHS is doing to fix up this problem and 

how your recent Dream Act memorandum will help you clear up 

this backlog? 

Ms. NAPOLITANO. Representative, we have been addressing that. 

It is really a question for DHS and the Department of Justice. But 

67 

we have been addressing it through offering administrative closure 

to low-priority cases that are caught in the backlog. 

We have been able to offer closure, I think, to about 8 percent 

of those cases. And, then, by what is coming into the immigration 

court system, making sure that those are the public safety cases, 

the criminals, the recent border crosses, the repeat violators, those 

are the ones that we prioritize. And just as we can prioritize, we 

can deprioritize, that those get our full attention. 

Ms. CHU. Let me also ask about the historical precedent to 

prioritize. When Director Morton first issued his enforcement priorities and prosecutorial discretion memos, some critics attacked the 

memos as unconstitutional and in violation of the separation of 

powers doctrine. These same attacks have continued in the wake 

of your memo on deferred action for Dream Act students. 

I wonder if you could respond to this claim and describe for us 

some of the historical precedent for issuing guidance such as this. 

Ms. NAPOLITANO. Well, there is a lot of historical precedent going 

back decades. I mentioned a few of the key cases, Chaney v. Heckler. There is a case, Reno v. Arab-American Anti-Discrimination 

league. And the recent Arizona decision of this Supreme Court is very 

clear that, in the immigration field, we possess and should possess 

enormous discretion on how to actually enforce the laws. 

Ms. CHU. In fact, doesn’t Chapter 6 of the U.S. Code, Section 

202, specifically direct you to establish national immigration enforcement policies and priorities? 

Ms. NAPOLITANO. That is true. 

Ms. CHU. And, in Congress’ annual appropriation bills, have we 

not directed you to prioritize the removal of serious criminal aliens 

and fund programs that specifically target such populations? 

Ms. NAPOLITANO. Yes, you have. 

Ms. CHU. And, aside from Congress’ direction, hasn’t DHS and 

INS before issued similar guidance about the use of prosecutorial 

discretion? 

Ms. NAPOLITANO. That is right. Doris Meissner, when she was 

the commissioner of then-INS, issued a very lengthy memo filled 

with all of the then existing legal precedent. That memo was cited 

by Julie Myers, who was the director of ICE before our Administration took over. 

So there is a long track record here of how we do this. 

And, again, I think it is important to emphasize, what we are 

trying to do is to increase the proportion not only those we remove 

from the country, the absolute number, but those of them who are 

convicted criminals, recent border violators, or repeat violators of 

our Nation’s immigration laws. 

Ms. CHU. Thank you. 

Mr. LUNGREN. The time of the gentlelady is expired. 

And the gentleman from Arizona, Mr. Franks, is recognized for 

5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Thank you, Secretary Napolitano, for being here. 

Madam Secretary, both the 9/11 Commission report and the 2011 

bipartisan report by Senators Lieberman and Collins on the Fort 

Hood massacre found that a major failure of the national security 

68 

apparatus in those instances, to quote their materials, ‘‘was the 

failure to acknowledge the true enemy explicitly as violent, 

Islamist extremism.’’ 

The DHS former top intelligence officer, Charlie Allen, noted that 

the U.S. Intelligence community doesn’t even have, quote, ‘‘the 

minimum essential requirements,’’ unquote, for how to collect information about violent Islamist extremism. 

Madam Secretary, as you know, Sun Tzu said that if you cannot 

identify your enemy, you cannot defeat him. Multiple agencies 

knew that Major Hasan was communicating with terrorist leader 

Awlaki, yet the Fort Hood massacre was deemed by this Administration, quote, ‘‘workplace violence.’’ 

And political extremists don’t recognize political correctness. And 

political correctness seems so extreme inside this Administration 

that the Attorney General, Eric Holder, came before this Committee and, after being asked numerous times, refused to acknowledge to our Chairman that radical Islam could be a, quote, ‘‘factor’’ 

in terrorism threats. 

And I think this kind of political correctness is killing Americans. 

Agents inside this Administration have told Members of this Congress that they are often afraid to identify the terrorist enemy and 

his ideology when the enemy cloaks himself in religion. 

So my question is this: If an agent inside your agency needs to 

identify the next Fort Hood shooter and that agent says that the 

terrorist is by a jihadist ideology, is that agent going to be punished? 

Ms. NAPOLITANO. No. 

Mr. FRANKS. And I have your word on that? 

Ms. NAPOLITANO. We look at that—we look at varying ideologies, 

but the notion that we won’t say terrorist or Islamist is not accurate. 

Mr. FRANKS. And an agent won’t be punished for opining the 

same. 

Ms. NAPOLITANO. I wake up in the morning thinking about how 

to protect this country, and I go to bed at night thinking about how 

to protect this country, And that is from individuals who seek to 

harm us of a variety of ideologies, but Islamist or radical violent 

Islamist is certainly one. 

Mr. FRANKS. Okay, well, I have a letter dated October 19th, 

2011, from multiple organizations, including several unindicted coconspirators in the Holy Land Foundation trial. This is, of course, 

the largest terror-financed trial in U.S. history. 

And this letter is addressed to you, to Attorney General Holder, 

and to Leon Panetta. And it demands a, quote, ‘‘purge,’’ unquote, 

of all counterterrorism training materials on the grounds that some 

of the materials reflected poorly on Islam. Now, within days, the 

Administration commenced an unprecedented nationwide purge of 

its counterterrorism materials. 

And an investigation into the FBI purge reveals that radical 

Islamist ideology is being purged along with information about 

mainstream Islam without distinction. Essentially, political correctness at the behest of unindicted co-conspirators is prevailing over 

the recommendations of the 9/11 report and the bipartisan Senate 

report on Fort Hood. 

69 

Has your agency also purged counterterrorism training materials 

along with the internal discussions that reference radical Islamist 

ideology and practice? 

Ms. NAPOLITANO. Not that I am aware of, no. 

Mr. FRANKS. Have you had any discussions with anyone in White 

House about the contents of that letter? 

Ms. NAPOLITANO. No, I haven’t. 

And let me just say, there are lots of training materials out 

there, so we are constantly revising and improving based on the intelligence we get and receive and how that is analyzed as to what 

are the evolving threats against the United States. But that is not 

a purge; that is just evolution of training materials. 

Mr. FRANKS. Are you aware of the purge within the FBI? 

Ms. NAPOLITANO. No, I am not. 

Mr. FRANKS. The materials, you are not aware of that? 

Ms. NAPOLITANO. No, I am not. 

Mr. FRANKS. All right. Well, thank you for coming by today and 

I appreciate your answering the questions. 

Ms. NAPOLITANO. You bet. 

Mr. LUNGREN. The gentleman yields back his remaining time. 

And the gentleman from Arizona, Mr. Quayle, is recognized for 

5 minutes. 

Mr. QUAYLE. Thank you, Mr. Chairman. 

Thank you, Madam Secretary, for being here. 

I want to go back to what you said the fee for the process that 

is going to be starting in August and the fact that it is not going 

to cost American taxpayers. 

Isn’t it true that there is also going to be a fee-waiver process 

as well, so that there is going to be some people who we waive to 

actually pay the fee so that it will actually cost American taxpayers? 

Ms. NAPOLITANO. The decision on that is not yet final, but I don’t 

anticipate there will be a broad fee-waiver process. 

Mr. QUAYLE. But there will be a fee-waiver option. 

Ms. NAPOLITANO. There may be a slight exception in particular 

of very deserving cases, but we anticipate this will be a fee-borne 

process. 

Mr. QUAYLE. Okay, so there could possibly be a fee waiver in certain instances. 

Ms. NAPOLITANO. For a person of compelling—but let me say— 

let me be very clear. We have not yet decided this or how to articulate it, and I don’t want the expectation out there by the applicants 

that there is going to be a broad fee-waiver process. There is not. 

Mr. QUAYLE. Okay, that would be more discretion on the part of 

DHS. 

Ms. NAPOLITANO. On a very hardship basis. 

Mr. QUAYLE. So you mentioned that the memo that you put on 

shortly after the Supreme Court ruling was a process of many 

memos, the Morton memos that came out 1 or 2 years ago and now 

it is your memo. 

I think that one of things that is concerning to a lot of us when 

you are talking about discretion is what is the next memo that is 

going to be coming out in terms of waiving or not allowing the actual prosecution of certain laws that are on the books? 

70 

I mean, is it going to be the next memo that comes out not just 

from you, but some other, that they are not going to enforce a different law that is on the books? 

And what my friend from South Carolina was trying to get at 

was what is our remedy as legislators? Do we have to, in every single law that we pass, that we pass through the Congress and the 

President signs, do we have to add a clause that says we really 

mean it, you have to actually enforce these laws? Because the discretion that you are talking about just seems like this means that 

the laws that are written and that are actually signed by the President don’t really mean anything if they actually have the discretion 

to disregard them. 

So what can we do, as legislators, to make sure that we get the 

laws that are passed actually fully enforced by the executive 

branch? 

Ms. NAPOLITANO. You know, Representative, I have been an executive my whole career, so it is really hard for me get into that 

legislative mindset. I will leave that for you. 

But I will say we are enforcing the laws. We have removed more 

people from this country than any prior Administration over a 

similar time period. In fact, I get criticized for that on a regular 

basis. 

But in the constitution of what is in there, we removed more 

criminals, border crossers, repeat violators. Ninety percent-plus 

last year are in those priorities. That is going to increase. 

And so I think it is totally within discretion about how you take 

the laws and say, look, you don’t give us—no law enforcement 

agency has unlimited resources. We all have to make decisions. 

You would be hard-pressed to find a U.S. Attorneys’ Office that 

takes a check cashing case, even though there is a Federal statute 

about it. It is a resource question. 

Mr. QUAYLE. Do we have to say, look, this law, it is mandatory, 

you have to enforce it. Is that the route we are going to go? Because that seems to be—I mean, judges aren’t allowed to waive the 

mandatory minimums that are put in place by the legislatures, 

even in State or Federal. 

And so this is what I am trying to get at, is that, when we have 

a situation where an executive branch does not actually enforce the 

laws but provides waivers or deferments or whatever you want to 

call it, we have a situation where the executive branch becomes allpowerful. And you can waive or not enforce any law that is on the 

books. 

And that completely and totally destroys the constitutional 

framework of our country of separate but co-equal branches of Government. And so I guess that is where we are going to have to go. 

But I want to jump really quickly, because my time is limited, 

to 287(g) that you were talking about earlier. 

Director Morton was also testifying last week, and you were saying that there were no removals for the Arizona 287(g) task force 

programs in the last 2 years? 

Ms. NAPOLITANO. For six of them. 

Mr. QUAYLE. For six of them? 

And which numbers—there were seven of them? Is that what—— 

71 

Ms. NAPOLITANO. I think—and we could give you the actual numbers. They are not a secret. 

Mr. QUAYLE. But, I mean, the word ‘‘removal’’ is very specific in 

terms of you guys and ICE actually removing the person. But that 

doesn’t necessarily mean that an illegal immigrant was found by 

that agency that was a part of the task force and was handed over 

to ICE but then isn’t actually removed. 

So, I mean, in 2010, the DPS, 112 illegal aliens were processed 

with ICE; 74 were processed in 2011. 

How many of those—I mean, maybe you will have to give me the 

answer. How many of those were actually removed, even though 

they were actually processed through ICE? 

Because I have noticed that you used the same word that Mr. 

Morton does as well, but that doesn’t get to the crux of how effective are local and State agencies actually apprehending illegal immigrants who are committing other crimes and then giving them 

to ICE, because then ICE has that discretion that they had been 

using? 

Ms. NAPOLITANO. Well, I think the goal of ICE—— 

Mr. LUNGREN. The time of the gentleman has expired, but the 

witness may answer that question. 

Ms. NAPOLITANO. Thank you, Mr. Chairman. 

You know, our goal is to remove those people who have been 

committing crimes in the country. So that is why we use removal 

as the key number. 

I think one of the other comparisons you might make, Representative, is between those task forces—and they are hugely expensive, 

and I will give you that breakout as well, compared to Secure Communities, which we have in all border States, in all the jurisdictions, where we have literally found thousands of criminals and aggravated felons. 

So from an administrative, management, cost-effective way of 

doing this, Secure Communities is so much better. 

Mr. QUAYLE. All right. Thank you. 

Mr. LUNGREN. The gentleman from South Carolina—or North 

Carolina, Mr. Coble. 

Mr. COBLE. I will hold you harmless for that, Mr. Chairman. 

Mr. LUNGREN. Well, you haven’t been here that long, so I am still 

getting to know you. 

You are recognized for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. 

Madam Secretary, good to have you back on the Hill. 

The distinguished gentleman from South Carolina, Madam Secretary—mentioned, or discussed prosecutorial discretion with you. 

Let me ask you this, Madam Secretary. 

What are you all at Homeland Security doing to assure that the 

new prosecutorial discretion policies do not result in the release of 

17-year-old alien gang members into our communities? 

Ms. NAPOLITANO. Well, the use of discretion in the deferred action program, a gang member would not qualify. 

Mr. COBLE. I can put that in the bank, right? 

Ms. NAPOLITANO. If there is an arrest for a felony or a serious 

misdemeanor, that person does not—and there is a criminal record 

72 

and other indication that this is a gang member, no, that person 

won’t qualify. 

Mr. COBLE. I thank you for that. 

Madam Secretary, I am going to insert my oars into geographic 

waters that are far extended from my district. Sometimes that can 

be a harmful exercise, but I am told that Cook County, Illinois, is 

a so-called sanctuary jurisdiction that does not cooperate with ICE 

to deport immigrants who have been arrested. Chicago, I am furthermore informed, is currently experiencing a massive wave of 

gang-related homicides. 

Might not better cooperation between the county and ICE to deport illegal immigrant gang members help or assist alleviate the 

murder crisis in Chicago? 

Ms. NAPOLITANO. Yes. 

Mr. COBLE. That is a hypothetical, I will admit. 

Ms. NAPOLITANO. Yes, I agree. 

Mr. COBLE. All right. Let me go back to the alien minors. 

What is being done, Madam Secretary, to ensure that unaccompanied alien minors interdicted at the border, who turn out to be 

gang members, are not released into our communities? 

Ms. NAPOLITANO. Well, again, there is guidance and supervision 

in the field as to that. There is a consequence delivery system, as 

I will explain in detail for you, or have someone explain for you. 

But it would be our total intention to make sure our agents pick 

that person up. 

Mr. COBLE. I thank you. I think I have time for one more question. ICE has found that the membership of violent transnational 

gangs is comprised largely of foreign-born nationals. Is it not better 

to deport gang members before they are caught committing major 

crimes, not after? 

Now, in 2005, the House passed legislation authored by Mr. Sensenbrenner to allow for the deportation of all alien gang members. 

Would you support such legislation? 

I don’t think it ever got passed in the Senate. 

Ms. NAPOLITANO. Yes, I am not familiar with it, Representative, 

so I am reluctant to comment on it. 

Mr. COBLE. Could you get back to me on that? 

Ms. NAPOLITANO. Yes. 

Mr. COBLE. I would appreciate that. 

Mr. Chairman, I think my time is about to expire. Thank you. 

I yield back. 

Mr. LUNGREN. The gentleman yields back. 

And the gentlelady from Florida, Mrs. Adams, is recognized for 

5 minutes. 

Ms. ADAMS. Thank you, Mr. Chairman. 

Madam Secretary, we meet again, and I am going to ask you 

some very similar questions as to the last time we spoke. 

I know, in December, you responded to my requests on how 

many people had been deported under Section 243(d), and I believe 

that your letter said that is the last step in getting countries to repatriate and to be used only after diplomatic efforts have failed. 

You also conceded that the Administration has yet to invoke these 

sanctions. 

73 

That was December. Now we are here in July. Have they invoked 

any? Have you recommended any to the Department of State? 

Ms. NAPOLITANO. Well, again, I think—— 

Ms. ADAMS. Just a yes or a no. I mean, I have sat here all day, 

and I have listened to the filibustering. I think yes or no. Have you 

recommended any to the Department of State? 

Ms. NAPOLITANO. Again, the information as to which countries 

are not working with us—— 

Ms. ADAMS. I will take that as a no. We will move on, because 

I have a lot of questions. 

Ms. NAPOLITANO [continuing]. To the State Department, and it 

is up to them to make—— 

Ms. ADAMS. Secretary, with all due respect, I want to get answers to my questions, not answers you want to give me. So a simple yes or no is what I was asking you. If you want to go into further detail, I would love to have you respond in a letter to get further into it, but a yes or no was perfectly satisfactory on a question, have you or have you not submitted any persons to the Department of State under 243(d)? 

Ms. NAPOLITANO. I will get back to you in writing. 

Ms. ADAMS. Thank you. 

Now, is it true that Agent Terry was shooting a beanbag gun the 

night he was killed? 

Ms. NAPOLITANO. I will get back to you in writing. 

Ms. ADAMS. Okay. We are going to go that route. That is fine. 

Is it true—do you have policies and procedures for your law enforcement officers on how to respond to active shooters? 

Ms. NAPOLITANO. I will get back to you in writing. 

Ms. ADAMS. So you are planning not to answer any of my questions the rest of this afternoon? 

Ms. NAPOLITANO. If you want an either yes or no—— 

Mr. CONYERS. Mr. Chairman? 

Ms. NAPOLITANO [continuing]. And won’t let me explain—— 

Mr. CONYERS. Mr. Chairman—— 

Ms. NAPOLITANO. [continuing]. I will have to explain in writing. 

Ms. ADAMS. Well, let me ask you this. 

Mr. CONYERS. I think that this proceeding—— 

Mr. LUNGREN. Let’s have regular order. Regular order. 

Mr. CONYERS. Yes, could we have regular order, please? 

Ms. ADAMS. Thank you. 

I am in possession of what is called ‘‘How to Respond to an Active Shooter.’’ How to respond: An active shooter is an individual 

actively engaged in killing or attempting to kill people in a confined and populated area typically through the use of firearms. 

I sent a letter, once I had heard about this, because it was reported all over the news. Fox reported that DHS officials maintained that the active shooter course was designed for all employees, civilian and law enforcement officers, and no one should rush 

into a situation where they or others around them could get hurt. 

Here is something from some of the Border Patrol agents: All immigration law enforcement officers have been required to watch the 

video. 

74 

And when I asked, you said they are not designed to mandate 

law enforcement actions. However, they are your training. Are they 

not your training materials? 

Ms. NAPOLITANO. They are training materials for civilians. Law 

enforcement observe them for situational awareness. Our use of 

force policies are consistent with all of Federal law enforcement. 

They are in writing, and we will supply them to you. 

Ms. ADAMS. Thank you very much. Because the letter I received 

just said they are not mandated. And I have real concerns when 

we have a Border Patrol agent who may or may not have been 

shooting a beanbag up against a very high-powered weapon. We 

have this who says that you are only to shoot back when your life 

is threatened. And as a law enforcement officer who was sworn to 

protect my community, if I was out and about, even off-duty, and 

someone were to start shooting in a populated area, or nonpopulated, but threaten someone’s life, not my own, but threatening 

other people’s lives, I was required to act to stop the aggression 

and save those lives. 

So I just wanted to make sure that this is not something that 

you are telling your armed law enforcement officers to do, to run 

away and hide? 

Ms. NAPOLITANO. They were told about it and went to the training so they were situationally aware. But the use of force policy is 

that which is consistent across Federal law enforcement. 

Ms. ADAMS. Well, again, maybe you need to get your public information officer that information, because they were quoted as saying it was for all, law enforcement and civilian employees. It was 

a policy. 

Ms. NAPOLITANO. For different purposes. 

Ms. ADAMS. I also look forward to getting your information back 

on 243(d) and how many times you have recommended someone be 

deported under that. 

As you know, these are violent criminals who have served time, 

and because their country refuses to take them back, they are released into our communities to create and commit more violent 

crimes. 

You know, I am very concerned that we have an option and it 

has yet to be employed when we have people being murdered by 

the very people that had threatened them, done time in jail, and 

because their country wouldn’t take them back, were released into 

the community to kill their victim. 

And my time has expired. I yield back. 

Mr. LUNGREN. The gentlelady’s time has expired. 

I am the last questioner, because I had to be in another meeting, 

is me. 

And so, Madam Secretary, thank you for appearing before us. We 

have had opportunities to have conversation before on the other 

Committee, Homeland Security. And I appreciate your work and 

your time. 

I must just say, though, as someone who has been involved in 

immigration law for 30-some years, who is the ranking Republican 

who carried the Simpson-Mazzoli bill, believing that we had a balance between legalization at that time and enforcement, and then 

sorely disappointed at the failure of enforcement ever since, it is 

75 

very important what we do, and what message it sends, not only 

to those who are directly affected, but to those who would see how 

we act and perhaps take advantage of that. 

And that is why it bothers me a great deal—I will just put this 

on the record. It bothers me a great deal that the President had 

an opportunity for almost 3 and a half years to work on efforts for 

immigration reform, 5 months before an election decides to announce this particular policy. 

And you come before us, and you tell us that we can’t tell you 

all the details of the policy because they haven’t worked them out. 

Normally, you work out what the details are, and then you declare 

your policy if in fact the intention is to have it work and not just 

make a political statement. 

And that is just my observation. And so it is a disappointment 

to me, I will tell you. But I understand—— 

Ms. NAPOLITANO. I think I disagree with you Representative. 

Mr. LUNGREN. I would presume that you do. 

Ms. NAPOLITANO. I assume you know I would disagree, but let 

me simply say that this was the evolution of a process that began 

in 2010. 

Mr. LUNGREN. I understand that. 

Let me ask you this, if the Congress gave you additional funding 

and directed that it only go toward removal and deportation cases, 

would you then alter your position on prosecutorial discretion? Because as I understand it, a great deal of what you have stated your 

policy to be is a consequence of limited budgets and, therefore, the 

necessity to establish priorities. 

Ms. NAPOLITANO. So you are saying if you give me an unlimited 

pocketbook, would I take it back? Is that the question? 

Mr. LUNGREN. No, that is not my question. And I know you know 

that was not my question. 

My question was, if we gave you additional funding, directed that 

you use those funds toward removal and deportation cases, would 

you still come up here and testify that the Administration would 

have the same policy as it announced in terms of the memorandum 

and the President’s announcement at the White House? 

Ms. NAPOLITANO. Yes, and the reason is there are plenty of 

criminals, border crossers, and repeat violators, more than enough 

for us to remove from the country. So you can give us more money, 

we will take it, but we are going to put it into the—— 

Mr. LUNGREN. Even if we gave you enough money to cover those 

people that are included in the prosecutorial discretion decision? 

Ms. NAPOLITANO. Representative, I think that is so unlikely that 

it is hard to answer the question. 

Mr. LUNGREN. Well, I guess you don’t want to answer the question about whether it is about resources or because you happen to 

disagree with the underlying law. 

And I can understand you disagree with the underlying law, but 

that, it seems to me, is not the basis upon which to hide behind 

a prosecutorial discretion, a definition where it is not a case-bycase authority. It is, in fact, a broad category that has been established. 

There has been a statement here that, because we are covering 

this group of individuals who, through no fault of their own, came 

76 

to the United States, it is in fact almost imperative we do that. My 

question is, is anybody at fault for them coming to the United 

States? 

Ms. NAPOLITANO. It depends. 

Mr. LUNGREN. Well, does your policy include not only, and I 

know you don’t call it amnesty, so we will not call it that. Let’s say 

it is a refusal to take action under the law with respect to this category of individuals. 

What does it do with respect to the individuals who brought 

them here illegally? Are they also covered by prosecutorial discretion? 

Ms. NAPOLITANO. They may be covered by prosecutorial discretion, but they are not covered by the deferred action memorandum. 

Mr. LUNGREN. So what would we believe then? Individuals that 

are covered by this, with respect to the quote, unquote, ‘‘Quasi 

Dream ACT’’ deportation, deferment, or whatever you want to call 

it. And does that extend to their relatives as a matter of policy? 

Ms. NAPOLITANO. No. 

Mr. LUNGREN. So that parents would not be covered by this, so 

the students would stay in the United States, but the parents 

would be subjected to deportation? 

Ms. NAPOLITANO. Well, they would be reviewed under a different 

standard, if their case came into ICE. And that would be the prosecutorial discretion memo of last June. 

Mr. LUNGREN. So the likelihood is they would not be? 

Ms. NAPOLITANO. If they had a felony or a serious misdemeanor 

on their record, they would be a priority case. They would be removable. 

Mr. LUNGREN. One last question, because my time is rapidly depleting here. 

Yesterday, we had testimony by a TSA representative in another 

Subcommittee about the issue of pilot licensing or pilot lessons, and 

the question of checking people before they are able to do that. 

And it was brought up by the representative of TSA that, currently, you do not match the list of those who want to apply for 

pilot lessons with the no-fly list. And that seemed to be incongruous that on a no-fly list I couldn’t get on a commercial aircraft, 

but I could, in fact, go to a pilot training program and not be 

stopped from doing that, because it is not checked against that list. 

Ms. NAPOLITANO. Representative, let me take the opportunity to 

offer a classified briefing to you. The plain fact of the matter is, 

there are lots of different ways someone on the no-fly list would not 

be in a position to get a pilot’s license. But I think I need to go 

in a classified—— 

Mr. LUNGREN. Okay, I understand. 

But the statement was made on the record yesterday that they 

are not checked against the no-fly list, period. And that is disturbing, if that is the case. 

Ms. NAPOLITANO. The TSA representative may not have been 

aware of all the other things that occur. 

Mr. LUNGREN. I appreciate that very much. 

I have so many more questions to ask you, but my time is up. 

And I know you would love to be here and enjoy our time some 

more, but, alas, that is not possible. 

77 

So we thank you for your testimony today. I know that there are 

questions that will be submitted to you in writing, and I know you 

will endeavor, as you have stated on the record, to get those to us 

in a timely fashion, as we define timely here. 

And without objection, all Members have 5 legislative days to 

submit additional written questions for the witness or additional 

materials for the record. 

Mr. LUNGREN. And this hearing is adjourned. 

[Whereupon, at 12:55 p.m., the Committee was adjourned.] 

(79) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

80 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary 


75154B1-1.eps
81 


75154B1-2.eps
82 


75154B1-3.eps
83 


75154B1-4.eps
84 


75154B1-5.eps
85 


75154B1-6.eps
86 


75154B1-7.eps
87 


75154B1-8.eps
88 


75154B1-9.eps
89 


75154B1-10.eps
90 


75154B1-11.eps
91 


75154B1-12.eps
92 


75154B1-13.eps
93 


75154B1-14.eps
94 


75154B1-15.eps
95 


75154B1-16.eps
96 


75154B1-17.eps
97 


75154B1-18.eps
98 


75154B1-19.eps
99 


75154B1-20.eps
100 


75154B1-21.eps
101 


75154B1-22.eps
102 


75154B1-23.eps
103 


75154B1-24.eps
104 


75154B1-25.eps
105 


75154B1-26.eps
106 


75154B1-27.eps
107 


75154B1-28.eps
108 


75154B1-29.eps
109 


75154B1-30.eps
110 


75154B1-31.eps
111 


75154B1-32.eps
112 


75154B1-33.eps
113 


75154B1-34.eps
114 


75154B1-35.eps
115 


75154B1-36.eps
116 


75154B1-37.eps
117 


75154B1-38.eps
118 


75154B1-39.eps
119 


75154B1-40.eps
120 


75154B1-41.eps
121 


75154B1-42.eps
122 


75154B1-43.eps
123 


75154B1-44.eps
124 


75154B1-45.eps
125 


75154B1-46.eps
126 


75154B1-47.eps
127 


75154B1-48.eps
128 


75154B1-49.eps
129 


75154B1-50.eps
130 


75154B1-51.eps
131 


75154B1-52.eps
132 


75154B1-53.eps
133 


75154B1-54.eps
134 


75154B1-55.eps
135 


75154B1-56.eps
136 


75154B1-57.eps
137 


75154B1-58.eps
138 


75154B1-59.eps
139 


75154B1-60.eps
140 


75154B1-61.eps
141 


75154B1-62.eps
142 


75154B1-63.eps
143 


75154B1-64.eps
144 


75154B1-65.eps
145 


75154B1-66.eps
146 


75154B1-67.eps
147 


75154B1-68.eps
148 


75154B1-69.eps
149 


75154B1-70.eps
150 


75154B1-71.eps
151 


75154B1-72.eps
152 


75154B1-73.eps
153 


75154B1-74.eps
154 


75154B1-75.eps
155 


75154B1-76.eps
156 


75154B2-1.eps
157 


75154B2-2.eps
158 


75154B2-3.eps
159 


75154B2-4.eps
160 


75154B2-5.eps
161 


75154B2-6.eps
162 


75154B2-7.eps
163 


75154B2-8.eps
164 


75154B2-9.eps
165 


75154B2-10.eps
166 


75154B2-11.eps
167 


75154B2-12.eps
168 


75154B2-13.eps
169 


75154B2-14.eps
170 


75154B2-15.eps
171 


75154B2-16.eps
172 


75154B2-17.eps
173 


75154B2-18.eps
174 


75154B2-19.eps
175 


75154B2-20.eps
176 


75154B2-21.eps
177 


75154B2-22.eps
178 


75154B2-23.eps
179 


75154B3-1.eps
180 


75154B3-2.eps
181 


75154B3-3.eps
182 


75154B3-4.eps
183 


75154B3-5.eps
184 


75154B3-6.eps
185 


75154B3-7.eps
186 


75154B3-8.eps
187 


75154B3-9.eps
188 


75154B3-10.eps
189 


75154B4-1.eps
190 


75154B4-2.eps
191 


75154B4-3.eps
192 


75154B5-1.eps
193 


75154B5-2.eps
194 


75154B5-3.eps
195 


75154B5-4.eps
196 


75154B5-5.eps
197 


75154B5-6.eps
198 


75154B5-7.eps
199 


75154B5-8.eps
200 


75154B5-9.eps
201 


75154B5-10.eps
202 


75154B5-11.eps
203 


75154B5-12.eps
204 


75154B5-13.eps
205 


75154B6-1.eps
206 


75154B6-2.eps
207 


75154B6-3.eps
208 


75154B6-4.eps
209 


75154B6-5.eps
210 


75154C-1.eps
211 


75154C-2.eps
212 


75154C-3.eps
213 


75154C-4.eps
214 


75154C-5.eps
215 


75154C-6.eps
216 


75154C-7.eps
217 


75154C-8.eps
218 


75154C-9.eps
219 


75154C-10.eps
220 


75154C-11.eps
221 


75154C-12.eps
222 


75154C-13.eps
223 


75154C-14.eps
224 


75154C-15.eps
225 


75154C-16.eps
226 


75154C-17.eps
227 


75154C-18.eps
228 


75154C-19.eps
229 


75154D1.eps
230 


75154D2-1.eps
231 


75154D2-2.eps
232 


75154D2-3.eps
233 


75154D2-4.eps
234 


75154D3.eps
235 


75154D4.eps
236 


75154D5.eps
237 


75154D6.eps
238 


75154D7.eps
239 


75154D8.eps
240 


75154D9.eps
241 


75154D10.eps
242 


75154D11.eps
243 


75154D12.eps
244 


75154D13.eps
245 

f 


75154D14.eps
246 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary 


75154F-1.eps
247 


75154F-2.eps
248 


75154F-3.eps
249 


75154F-4.eps
250 


75154F-5.eps
251 


75154F-6.eps
252 

f 


75154F-7.eps
253 

Response to Questions for the Record from the Honorable Janet 

Napolitano, Secretary, U.S. Department of Homeland Security 


75154E-1.eps
254 


75154E-2.eps
255 


75154E-3.eps
256 


75154E-4.eps
257 


75154E-5.eps
258 


75154E-6.eps
259 


75154E-7.eps
260 


75154E-8.eps
261 


75154E-9.eps
262 


75154E-10.eps
263 


75154E-11.eps
264 


75154E-12.eps
265 


75154E-13.eps
266 


75154E-14.eps
267 


75154E-15.eps
268 


75154E-16.eps
269 


75154E-17.eps
270 


75154E-18.eps
271 


75154E-19.eps
272 


75154E-20.eps
273 


75154E-21.eps
274 


75154E-22.eps
275 


75154E-23.eps
276 


75154E-24.eps
277 


75154E-25.eps
278 


75154E-26.eps
279 


75154E-27.eps
280 


75154E-28.eps
281 


75154E-29.eps
282 


75154E-30.eps
283 


75154E-31.eps
284 

Æ 


75154E-32.eps