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DOES ADMINISTRATION AMNESTY HARM OUR 

EFFORTS TO GAIN AND MAINTAIN OPERATIONAL CONTROL OF THE BORDER? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON BORDER AND 

MARITIME SECURITY 

OF THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 4, 2011 

Serial No. 112–47 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 
(II) 

COMMITTEE ON HOMELAND SECURITY 

PETER T. KING, New York, Chairman 

LAMAR SMITH, Texas 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

MICHAEL T. MCCAUL, Texas 

GUS M. BILIRAKIS, Florida 

PAUL C. BROUN, Georgia 

CANDICE S. MILLER, Michigan 

TIM WALBERG, Michigan 

CHIP CRAVAACK, Minnesota 

JOE WALSH, Illinois 

PATRICK MEEHAN, Pennsylvania 

BEN QUAYLE, Arizona 

SCOTT RIGELL, Virginia 

BILLY LONG, Missouri 

JEFF DUNCAN, South Carolina 

TOM MARINO, Pennsylvania 

BLAKE FARENTHOLD, Texas 

ROBERT L. TURNER, New York 

BENNIE G. THOMPSON, Mississippi 

LORETTA SANCHEZ, California 

SHEILA JACKSON LEE, Texas 

HENRY CUELLAR, Texas 

YVETTE D. CLARKE, New York 

LAURA RICHARDSON, California 

DANNY K. DAVIS, Illinois 

BRIAN HIGGINS, New York 

JACKIE SPEIER, California 

CEDRIC L. RICHMOND, Louisiana 

HANSEN CLARKE, Michigan 

WILLIAM R. KEATING, Massachusetts 

KATHLEEN C. HOCHUL, New York 

JANICE HAHN, California 

MICHAEL J. RUSSELL, Staff Director/Chief Counsel 

KERRY ANN WATKINS, Senior Policy Director 

MICHAEL S. TWINCHEK, Chief Clerk 

I. LANIER AVANT, Minority Staff Director 

SUBCOMMITTEE ON BORDER AND MARITIME SECURITY 

CANDICE S. MILLER, Michigan, Chairwoman 

MIKE ROGERS, Alabama 

MICHAEL T. MCCAUL, Texas 

PAUL C. BROUN, Georgia 

BEN QUAYLE, Arizona, Vice Chair 

SCOTT RIGELL, Virginia 

JEFF DUNCAN, South Carolina 

PETER T. KING, New York (Ex Officio) 

HENRY CUELLAR, Texas 

LORETTA SANCHEZ, California 

SHEILA JACKSON LEE, Texas 

BRIAN HIGGINS, New York 

HANSEN CLARKE, Michigan 

BENNIE G. THOMPSON, Mississippi (Ex Officio) 

PAUL ANSTINE, Staff Director 

DIANA BERGWIN, Subcommittee Clerk 

ALISON NORTHROP, Minority Subcommittee Director 
(III) 

C O N T E N T S 

Page 

STATEMENTS

The Honorable Candice S. Miller, a Representative in Congress From the 

State of Michigan, and Chairwoman, Subcommittee on Border and Maritime Security: 

Oral Statement ..................................................................................................... 1 

Prepared Statement ............................................................................................. 3 

The Honorable Henry Cuellar, a Representative in Congress From the State 

of Texas, and Ranking Member, Subcommittee on Border and Maritime 

Security ................................................................................................................. 5 

The Honorable Bennie G. Thompson, a Representative in Congress From 

the State of Mississippi, and Ranking Member, Committee on Homeland 

Security ................................................................................................................. 11 

WITNESSES

Chief Michael J. Fisher, Border Patrol, Customs and Border Protection, Department of Homeland Security: 

Oral Statement ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

Kumar C. Kibble, Deputy Director, Immigration and Customs Enforcement, 

Department of Homeland Security: 

Oral Statement ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Ruth Ellen Wasem, Ph.D., Specialist in Immigration Policy, Congressional 

Research Service: 

Oral Statement ..................................................................................................... 27 

Prepared Statement ............................................................................................. 28 

FOR THE RECORD

The Honorable Henry Cuellar, a Representative in Congress From the State 

of Texas, and Ranking Member, Subcommittee on Border and Maritime 

Security: 

Letter ..................................................................................................................... 7 

Slide ....................................................................................................................... 10

The Honorable Bennie G. Thompson, a Representative in Congress From 

the State of Mississippi, and Ranking Member, Committee on Homeland 

Security: 

Bill Excerpt ........................................................................................................... 12 

Slide ....................................................................................................................... 41

The Honorable Sheila Jackson Lee, a Representative in Congress From the 

State of Texas 

Article .................................................................................................................... 47 

(1) 

DOES ADMINISTRATION AMNESTY HARM OUR 

EFFORTS TO GAIN AND MAINTAIN OPERATIONAL CONTROL OF THE BORDER? 

Tuesday, October 4, 2011 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOMELAND SECURITY, 

SUBCOMMITTEE ON BORDER AND MARITIME SECURITY, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:02 a.m., in Room 

311, Cannon House Office Building, Hon. Candice S. Miller [Chairwoman of the subcommittee] presiding. 

Present: Representatives Miller, McCaul, Quayle, Rigell, Duncan, 

Cuellar, Jackson Lee, Clarke, and Thompson. 

Mrs. MILLER. I am going to call the committee to order. Before 

I start my, I guess, sort-of more formal opening statement, I think 

we need to congratulate the men and women of our terrorist community for their outstanding work on capturing—or, excuse me, 

killing the terrorist, Anwar al-Awlaki, last week. It was certainly 

wonderful, wonderful news for everyone who is a fighter for freedom; it was a big blow to the enemies of freedom, al-Qaeda. 

Being from Detroit, we were aware of his involvement with the 

Christmas day bomber, and the Times Square bomber, and so 

many others. Many people have said that he was a greater threat 

to our country, actually, than Osama bin Laden. So I think we, 

since we all sit on the Homeland Security Committee, we should 

recognize the death of this very vile terrorist removes a huge, enormous threat from our Nation. 

Securing our Nation’s border is certainly one of the principal responsibilities of the Federal Government, and it is foremost on this 

subcommittee’s agenda. Over the last 9 months this year we have 

examined the concept of operational control at a number of our 

committee meetings, and really what it means in terms of how secure or how open our border actually is. 

As the Border Patrol points out correctly, we have a layered approach to border security that begins at the border, but it doesn’t 

end at the border. Interior checkpoints, bus, and other transportation checks are also very valuable tools to reduce the number of 

illegal aliens that enter the country. 

The last line of defense, as we work to control the integrity of 

the border, is interior enforcement, and this hearing is intended to 

examine the impact of the administration’s recent decision to more 

leniently apply prosecutorial discretion and how it will affect the 

Border Patrol’s ability to gain and maintain operational control of 
2 

the border. I am very concerned—I know others are, as well—that 

the message that this administration is sending will lead to strains 

on the Border Patrol’s resources as potential illegal immigrants 

may surge across the border, making it much more difficult for the 

Border Patrol. 

What is troubling is that the administration has offered literally 

hundreds of thousands of illegal aliens administrative amnesty 

through a series of memos and letters. The Department of Homeland Security and the Department of Justice have decided to review every single case in the removal pipeline to weed out noncriminals and criminal aliens who haven’t committed the most serious crimes, and then indefinitely close and ignore those cases that 

don’t meet that threshold. 

I think when you have the potential to administratively close 

hundreds of thousands of removal cases it sends a message, and 

that message is clear: That if you make it past the border you are 

scot-free and that you can stay here despite breaking our immigration laws unless you commit a serious crime, and even then there 

is no guarantee that these illegal aliens will be deported and sent 

back to their home. So this action by the administration is clearly 

administrative amnesty. 

Certainly, I am a strong supporter of Secure Communities, a program that removes thousands of dangerous criminals from our 

streets every year. I certainly congratulate the men and women of 

ICE for the excellent work that they do to remove criminals, visa 

violators, and certainly recent border-crossers. 

I would remind my colleagues that every single person who 

crosses the border illegally has, in fact, committed a crime, and we 

cannot send the message that unless you break the social contract 

and commit serious crimes we will not bother with the effort to deport you. We are either a Nation of laws or we are not, and telling 

illegal aliens that we are really not looking for them unless they 

commit additional serious crimes is a mistake, I believe, and will 

only serve to encourage more illegal immigration, and again, as a 

result, will make the job of Border Patrol agents charged with defending the Nation that much harder. 

Our country has made a series of mistakes, I think, when it 

comes to immigration reform, without serious border security and 

serious interior enforcement. In every instance where we have either offered amnesty or even had a serious policy discussion about 

it people have responded and a surge of illegal aliens cross the border to take advantage. We saw that in 1986; we saw it again in 

2006; we saw it in 2007. 

Instead of offering incentives for people to break the law we 

should be making it more difficult to cross the border and even 

harder to get a job once they are here illegally. Doing anything 

else, I think, is less a slap in the face to honest immigrants who 

do the right thing, who wait in line, who fill out the paperwork, 

pay the associated fees, learn English, and become naturalized according to our laws. 

Administration officials like to point to the number of apprehensions as an indicator of the success of their enforcement efforts, but 

I think this comparison is a bit disingenuous, because really the 

poor state of the American economy is a driving force behind the 
3 

current low apprehension numbers and the lack of people trying to 

cross the border. Telling the American people that the border is 

more secure than ever—I don’t believe that. I think the reality is— 

in fact, according to the Mexican Migration Project, nearly 97 percent of all the illegal immigrants who try to cross the border eventually succeed, which is a startling number. 

Estimates do vary, but we do have somewhere in the neighborhood of 11 million to 12 million illegal aliens living in the United 

States and we remove only 400,000 each year. So the already low 

prospect of being deported is now being further reduced by this administration’s misguided attempts to circumvent the legislative 

process. 

If the President wants to change the law he needs to submit a 

proposal to Congress. Article 2, Section 3 of the Constitution states 

that the President shall take care that the laws be faithfully executed. Not enforcing key aspects of the law is not consistent with 

that section of the Constitution. 

We need to have a strategy to secure the border and for administration officials to be honest and candid with the Congress about 

the resources that it needs. But unfortunately, we get insufficient 

answers and an administration that circumvents the legislative 

process to grant administrative amnesty to thousands of illegal 

aliens. 

I think it is past time that we come up with a plan to secure our 

border instead of sending signals that make gaining and maintaining operational control of our borders even more difficult. I certainly look forward to hearing the testimony of all of our witnesses 

and appreciate them all coming today as we talk about operational 

control of our borders. 

[The statement of Mrs. Miller follows:] 

PREPARED STATEMENT OF CHAIRWOMAN CANDICE S. MILLER

OCTOBER 4, 2011 

Securing the Nation’s border is one of the principal responsibilities of the Federal 

Government, and is foremost on this subcommittee’s agenda. Over the past 9 

months, we have examined the concept of Operational Control and what that means 

in terms of how secure or open the border really is. 

As the Border Patrol rightly points out, we have a layered approach to border security that begins at the border, but does not end there. Interior checkpoints, bus 

and other transportation checks are also valuable tools to reduce the number of illegal aliens that enter the country. The last line of defense as we work to control the 

integrity of the border is interior enforcement. 

This hearing is intended to examine the impact of the administration’s recent decision to more leniently apply prosecutorial discretion and how it will affect the Border Patrol’s ability to gain and maintain operational control of the border. I am concerned that the message this administration is sending may lead to strains on the 

Border Patrol’s resources as potential immigrants may surge across the border, 

making it more difficult for the Border Patrol to identify smugglers, criminals, and 

potential terrorists. 

What is troubling is that this administration, under the guise of lacking resources, has offered hundreds of thousands of illegal aliens administrative amnesty 

through a series of memos and letters. Now, I’m sure that you’ll hear them take 

issue with that term. But the Department of Homeland Security and Department 

of Justice have decided to review every single case in the removal pipeline to weed 

out non-criminals, and criminal aliens who haven’t committed the most serious 

crimes and then indefinitely close and ignore those cases that don’t meet their 

threshold, I am honestly not sure what else to call it. 

And what about those people whose cases are closed? They will not be removed, 

and will probably receive work authorization from the Citizenship and Immigration 
4 

Services. So, if they aren’t being deported and they have the potential to work legally in the United States that sounds an awful like amnesty to me! 

When you have the potential to administratively close hundreds of thousands of 

removal cases it sends a message and that message is crystal clear: If you make 

it past the border, you are scot-free and can stay here, despite breaking our immigration laws, unless you commit a serious crime. Even then there is no guarantee 

that those illegal aliens will be deported and sent back to their home. 

I continue to be a strong supporter of Secure Communities, a program that removes thousands of dangerous criminal from our streets every year. I congratulate 

the men and women of ICE for the excellent work that they do to remove criminals, 

visa violators, and recent border crossers. Contrary to some critics, they do a good 

job at just that. But this is just half of the story. 

I would like to remind my colleagues that every single person who crosses the border illegally has committed a crime, and we cannot ignore that fact or sweep it 

under the rug. We cannot send the message that unless you break the social contract and commit serious crimes, we will not bother with the effort to deport you. 

Either we are a Nation of laws or we are not—it is just that simple. Telling illegal 

aliens that we are not really looking for them unless they commit additional serious 

crimes is a tragic mistake and will only serve to encourage more illegal immigration, 

and as a result, will make the job of Border Patrol agents charged with defending 

the Nation that much harder. 

Taking a look at the series of mistakes we have made when it comes to immigration reform without serious border security and serious interior enforcement makes 

my head spin. In every instance where we have either offered amnesty, or even had 

a serious policy discussion about it, people have responded—and a surge of illegal 

aliens cross the border to take advantage. 

We saw that in 1986 and we saw it again in 2006 and 2007. Instead of offering 

incentives for people to break the law we should be making it more difficult to cross 

the border and even harder to get a job once they are here illegally. Doing anything 

less is a slap in the face to honest immigrants who do the right thing, wait in line, 

fill out paper work, pay the associated fees, learn English, and become naturalized 

according to the law. 

Administration officials like to point to the number of apprehensions as an indicator of the success of their enforcement efforts, but this comparison obscures the 

truth—the poor state of the American economy is the driving force behind the current low apprehension numbers and the lack of people trying to cross the border. 

Telling the American people that the border is more secure than ever is, at best, 

a disservice; the reality is that, according to the Mexican Migration Project, nearly 

97% of illegal immigrants who try to cross the border eventually succeed. 

I’m not sure about you, but that isn’t what I call a country that has control of 

its borders. 

Estimates vary, but we have somewhere in the neighborhood of 11–12 million illegal aliens living in the United States, and we remove only 400,000 each year, so 

the already low prospect of being deported is now being further reduced by this administration’s misguided attempts to circumvent the legislative process. If the President wants to change the law, then he needs to submit a proposal to Congress. 

Last time I checked, Article II Section 3 of the Constitution states that the President ‘‘shall take care that the laws be faithfully executed.’’ Not enforcing key aspects 

of the law is not consistent with that section of the Constitution. 

What I have continually called for is a strategy to secure the border and for administration officials to be honest and candid with Congress about their resource 

needs, but instead we get more of the same—insufficient answers and an administration that circumvents the legislative process to grant administrative amnesty to 

thousands of illegal aliens. 

It is well past time that we come up with a plan to secure the border instead of 

sending signals that make gaining and maintaining operational control even more 

difficult. I look forward to hearing from our witnesses how lax enforcement may 

hinder efforts to gain operational control of the border. 
5 

Mrs. MILLER. At this time the Chairwoman would recognize the 

Ranking Member, Mr. Cuellar, for his opening statement. 

Mr. CUELLAR. Thank you so much, Madam Chairwoman, for 

holding this meeting. 

First of all, I have a housekeeping matter. I believe the House 

rules call that witnesses are supposed to turn in their testimonies 

48 hours before. I understand that our friend, Chief Fisher, turned 

his testimony at 8:43 p.m. Is that correct? Who would know that? 

Is that correct? Okay. 

Again, I would ask the witnesses to turn their testimony in on 

time. I believe last time a Chief was here, officially was with us, 

he said he had about 250 Border Patrol agents that could be on the 

border but he had them at headquarters; I don’t know if they can 

help him put this little testimony together, but I would ask that 

we adhere by the rules on testimony. 

Madam Chairwoman, I would like to start off with the hearing 

with some basic figures related to illegal immigration in the United 

States. There are currently an estimated 11.2 million undocumented aliens in this country. 

At present, ICE has the resources to remove approximately 400 

undocumented aliens annually. You do not have to be a mathematician to see that there is an enormous discrepancy between the 

scale of illegal immigration issue and the resources available to address this. 

Faced with this reality, ICE has made a reasonable decision to 

prioritize its resources to remove undocumented aliens who pose a 

threat to National security, public safety, or our immigration sys-
6 

tem first and foremost. When I come from this kind of smart use 

of limited resources is called good Government. 

After all, wouldn’t you rather remove someone with potential ties 

to terrorism before an elderly person? Why wouldn’t you remove a 

gang member before you remove a pregnant woman? Why wouldn’t 

you remove someone with a history of DUI before a child? 

This kind of prioritization should be common sense. If the use of 

prosecutory discretion is unique neither to the current administration nor to ICE. Past administrations have made similar choices 

when faced with circumstances. 

Members, I would ask you to take a look at—there is the list of 

memos that have been turned in since 1979—I believe July 15, 

1976 to the present time—both under Democrat and Republican 

administrations that have used prosecutorial discretions—both 

Democrats and Republicans, even under the last administration, 

my friend, George Bush. Law enforcement officials have used 

this—and one more thing, before I go—move from the—from this 

memos—there is also a letter dated November 8, 1999, signed by 

Democrats and Republicans—in fact, some Members from this committee—that are asking for prosecutorial discretion. Let me give 

you a list of some Members that you might recognize: Henry Hyde, 

Lamar Smith, Bill Burton—I mean, Bill Barriz—you have Brian 

Bilbray, Nathan Deal, David Dreier, James McGovern, James Sensenbrenner, and Sam Johnson—I don’t see Michael McCaul; you 

weren’t here in 1999—Lincoln Diaz-Balart, and I go on. 

[The information follows:] 
7 
8 
9 

Mr. CUELLAR. These are Members, both Democrats and Republicans, and some folks that are taking a very strong position 

against prosecutorial Members. This is a letter sent off to Janet 

Reno and to Doris Meissner, the commissioner of INS at that time, 

dated November 8, 1999, that are asking for prosecutorial discretion. Again, I would ask you—I would be happy to share the copies 

of the memos both under the Bush administration, Reagan administration, all the way down to the Jimmy Carter administration. 
10 

As I mentioned, law enforcement agencies around the country, 

both Federal, State, and local, utilize the enforcement tool—this 

enforcement tool to ensure that they get the worst of the worst off 

our streets. There is a certain irony to the fact that ICE’s commitment to removing undocumented aliens has been called into question when this administration has removed more undocumented 

aliens annually than any of its predecessors. 

Members, I would ask you to take a look at the PowerPoint up 

there, and you will see, from 2001 we were removing criminal 

aliens that were removed from the United States at about 73,000— 

a little bit over 73,000. In 2008, the last year of the Bush administration, we removed 105,266. 

[The information follows:] 

Mr. CUELLAR. Then you move into 2009, 2010, 2011, under the 

Obama administration. In 2009, 131,840—you can see a jump from 

the past administration—that were actually removed. In 2010, 168- 

plus that were actually removed, a jump from the prior administration. In 2011 you have 202,169 that were actually removed. 

In fact, if we keep going, in 2001, in 3 years we would remove 

more criminal aliens than the last 8 years under the Bush administration. This includes, again—and this includes, also, numbers 

when you look at—including the undocumented aliens—not only 

criminal aliens, but undocumented aliens, also. 

Recently, as part of ICE Operation Cross Check, DHS announced 

the identification and arrest of over 2,900 convicted criminal aliens; 

1,600 of them were—that were arrested were murderers, kidnappers, drug traffickers, child predators, rapists, gang members, and 

convicted sex offenders. This is a fundamental example of smart, 

focused, effective immigration enforcement that we have. 
11 

I would ask that during this substantial budget cuts that we look 

and allow ICE to continue to exercise their law enforcement discretion to place priority on identifying, arresting, and removing immigration fugitives. I certainly want to commend, Madam Chairwoman, the work of our ICE folks, and certainly Director Morton, 

for the work that he has done. 

Finally, the last thing I would just make to conclude is, as a 

Member, again, from the border I would have to denote that—note 

that I disagree with the title of today’s hearing. The hearing title 

implies that there is amnesty for border crossing when, in fact, we 

continue to have a zero tolerance policy. In fact, in the Laredo area 

of the Border Patrol and the Del Rio area, it used to be that people 

that would cross would be sent back, but under a 1954 law we are 

now saying that they would have to spend some time in a detention—in jail—for doing that. That is something that we just started 

doing in Texas. 

Finally, the border crossing and immigration violators are specifically prioritized for removal under the ICE policy. Again, we 

would have to be careful from using amnesty, because if not, I am 

afraid that we could cause a possible magnet effect of this member—of this border security, and then this misinformation would 

say, ‘‘You know what, in the United States there is some amnesty 

involved,’’ so we would have to be very careful. 

I do not believe in amnesty. I don’t believe that what Ronald 

Reagan and the Democrats did in 1986 created amnesty. I don’t 

agree with that. 

I certainly want to thank Madam Chairwoman for having this 

hearing so we can talk about this important issue, and certainly 

want to thank all the witnesses for being here today. I yield back 

the balance of my time. 

Mrs. MILLER. The Chairwoman now recognizes the Ranking 

Member of the Full Committee, the gentleman from Mississippi, 

Mr. Thompson, for his statement. 

Mr. THOMPSON. Thank you very much, Madam Chairwoman. I 

appreciate the hearing. I appreciate our witnesses who are also 

here today. 

But let me start by addressing the title of today’s hearing, ‘‘Does 

Administrative Amnesty Harm Our Efforts to Gain and Maintain 

Operational Control of the Border?’’ I find it curious that a practical, risk-based approach to removal of undocumented aliens 

would be characterized by my friends across the aisle as administrative amnesty. This is not a legal term, but a political one. 

Typically, the smart and efficient use of Government resources 

garner bipartisan praise and support in this town. What is ICE 

doing under the Obama administration that is different than what 

it or its predecessor, INS, did under previous administrations? 

ICE is prioritizing its limited resources to ensure that the agency 

removes undocumented aliens who pose a danger to National security or a risk to public safety, along with recent illegal entrants. 

Currently, ICE only has the resources necessary to remove approximately 400,000 undocumented aliens. 

Madam Chairwoman, I would like to offer for the record a copy 

of the Homeland Security appropriations measure where every 
12 

Member of this subcommittee voted for this very same program to 

the tune of $1.6 billion. 

Mrs. MILLER. Without objection. 

[The information follows:] 

H.R. 2017 EH 

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 

SALARIES AND EXPENSES

For necessary expenses for enforcement of immigration 

and customs laws, detention and removals, and investigations; 

and purchase and lease of up to 3,790 (2,350 for replacement 

only) police-type vehicles; $5,522,474,000 (increased by 

$1,000,000) (reduced by $1,000,000) (increased by $1,000,000) 

(reduced by $5,000,000) (increased by $5,000,000), of which not 

to exceed $7,500,000 shall be available until expended for conducting special operations under section 3131 of the Customs 

Enforcement Act of 1986 (19 U.S.C. 2081); of which not to exceed $15,000 shall be for official reception and representation 

expenses; of which not to exceed $2,000,000 shall be for awards 

of compensation to informants, to be accounted for solely under 

the certificate of the Secretary of Homeland Security; of which 

not less than $305,000 shall be for promotion of public awareness of the child pornography tipline and activities to counter 

child exploitation; of which not less than $5,400,000 (increased 

by $1,000,000) shall be used to facilitate agreements consistent 

with section 287(g) of the Immigration and Nationality Act (8 

U.S.C. 1357(g)); and of which not to exceed $11,216,000 shall 

be available to fund or reimburse other Federal agencies for 

the costs associated with the care, maintenance, and repatriation of smuggled aliens unlawfully present in the United 

States: Provided, That none of the funds made available under 

this heading shall be available to compensate any employee for 

overtime in an annual amount in excess of $35,000, except that 

the Secretary, or the designee of the Secretary, may waive that 

amount as necessary for National security purposes and in 

cases of immigration emergencies: Provided further, That of 

the total amount provided, $15,770,000 shall be for activities 

to enforce laws against forced child labor, of which not to exceed $6,000,000 shall remain available until expended: Provided further, That of the total amount available, not less than 

$1,600,000,000 shall be available to identify aliens convicted of 

a crime who may be deportable and aliens who may pose a serious risk to public safety or National security who may be deportable, and to remove them from the United States once they 

are judged deportable, of which $194,064,000 shall remain 

available until September 30, 2013: Provided further, That the 

Assistant Secretary of Homeland Security for U.S. Immigration 

and Customs Enforcement shall report to the Committees on 

Appropriations of the Senate and the House of Representatives, not later than 45 days after the end of each quarter of 

the fiscal year, on progress in implementing the preceding proviso and the funds obligated during that quarter to make such 
13 

progress: Provided further, That the Secretary shall prioritize 

the identification and removal of aliens convicted of a crime by 

the severity of that crime: Provided further, That the funding 

made available under this heading shall maintain a level of 

not less than 34,000 detention beds through September 30, 

2012: Provided further, That of the total amount provided, not less than $2,750,843,000 is for detention and removal operations, including transportation of unaccompanied minor 

aliens: Provided further, That of the total amount provided, $10,300,000 shall remain available until September 30, 2013, 

for the Visa Security Program: Provided further, That none of 

the funds provided under this heading may be used to continue 

a delegation of law enforcement authority authorized under 

section 287(g) of the Immigration and Nationality Act (8 U.S.C. 

1357(g)) if the Department of Homeland Security Inspector 

General determines that the terms of the agreement governing 

the delegation of authority have been violated: Provided further, That none of the funds provided under this heading may 

be used to continue any contract for the provision of detention 

services if the two most recent overall performance evaluations 

received by the contracted facility are less than ‘‘adequate’’ or 

the equivalent median score in any subsequent performance 

evaluation system: Pro-[ . . . ] 

Mr. THOMPSON. That constitutes, in its form, less than 4 percent 

of the estimated illegal alien population in the United States. Unless and until Congress appropriates sufficient funds for ICE to apprehend and remove every undocumented alien in the country we 

should support the agency’s efforts to focus its limited resources on 

removing those undocumented aliens who pose the greatest threat 

to our Nation. 

Indeed, on the topic of appropriations, as I have already said, the 

Republican homeland security appropriation bill, approved by the 

House this session, cuts rather than increases ICE’s budget. All but 

one of the Republican colleagues on this subcommittee voted in 

favor of those cuts. 

As I said before, Madam Chairwoman, our Republican colleagues 

tend to talk tough when it comes to homeland security and immigration enforcement, but rarely do they put their money where 

their mouth is. 

Also, it is worth noting that under the current administration 

ICE has removed more criminal aliens and more aliens total than 

under the Bush administration or any other prior administration, 

Democrat or Republican. Only in Washington, DC, could those 

kinds of figures somehow be spun as amnesty. 

Ironically, the last real amnesty was championed by President 

Ronald Reagan, a hero to many of my Republican colleagues. Yet, 

today it appears that even the largest number of removals of undocumented immigrants in our Nation’s history is not enough to 

satisfy some. 

With that, Madam Chairwoman, I would like to welcome our distinguished panel of witnesses. I look forward to hearing them 

today, and I am certain that they will provide the Members of this 

subcommittee valuable insight into the complex issue of immigration enforcement. 
14 

I yield back the balance of my time. 

Mrs. MILLER. I thank the gentleman for his comments. Other 

Members of the committee are reminded that opening statements 

might be submitted for the record. 

I am going to introduce all three of our guests, and then we will 

start with the chief. 

Chief Michael Fisher was named the chief of the U.S. Border Patrol in May of last year. He started his duty along the Southwest 

Border in 1987, in Douglas, Arizona. 

He successfully completed the selection process for the Border 

Patrol Tactical Unit, BORTAC, in 1990, and was later selected as 

field operations supervisor for the tactical unit. Following this, he 

served as the deputy chief patrol agent for the Detroit sector, and 

as an assistant chief patrol agent in Tucson, Arizona. 

We welcome you, Chief. 

Deputy Director Kibble is the deputy director for U.S. Immigration and Customs Enforcement, also known as ICE, of course. Prior 

to this assignment, Mr. Kibble served in several key leadership 

roles at ICE headquarters. 

His field assignments included service as a group supervisor and 

assistant special agent in charge of the metropolitan Los Angeles, 

California area. He also served as the special agent in charge of 

HSI’s regional field office, in Denver, responsible for 17 offices in 

Colorado, Montana, Utah, and Wyoming. 

Dr. Ruth Ellen Wasem is a specialist in immigration policy with 

the Congressional Research Service, CRS, Library of Congress, and 

in that capacity she has written reports for Congress that provide 

research and policy analysis on a range of immigration subjects, including on asylum, family and employment-based permanent immigration, naturalization, non-immigrant admissions, non-citizen eligibility for public assistant ends, as well as visa policy. Dr. Wasem 

completed her doctorate in history at the University of Michigan, 

and she also has an M.A. in history from the University of Michigan. 

So we welcome all of you. As you heard from our opening statements, there is rather a divergence of opinion on the committee 

here, of whether or not this is administrative amnesty and whether 

or not the policy recently adopted by the administration is the 

proper way to proceed. 

One of our, obviously, biggest functions of Congress is to provide 

Congressional oversight into your various agencies and departments as well as the policy that comes from the Executive Branch, 

and so that really is the purpose of the committee today. 

With that, we would have the floor to Chief Fisher, and again, 

welcome you back to the committee, and look forward to your testimony, sir. 

STATEMENT OF CHIEF MICHAEL J. FISHER, BORDER PATROL, 

CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF 

HOMELAND SECURITY 

Chief FISHER. Thank you. 

Chairwoman Miller, Ranking Member Cuellar, and distinguished 

Members of the subcommittee, it is, indeed, my privilege and honor 

to appear before you again today. The border is a far different place 
15 

today than it was when I began my career with the Border Patrol. 

I have personally witnessed the evolution of the border over the 

past 24 years, both in terms of additional resources applied against 

the threat as well as changes in the smugglers’ tactics and their 

attempts to exploit our border. 

In fiscal year 2011, just ending, the Border Patrol made approximately 340,000 arrests, compared to 10 years ago, when the number of arrest totaled approximately 1.6 million. Although we have 

seen positive indicators of a more secure border our work continues, and that work will not end as long as those who seek to 

enter this country illegally. 

With the assistance of Congress, we have seen unprecedented influx of resources, and as a result we are currently at a pivot point 

in our strategic thinking. The Border Patrol remains committed to 

carrying out the laws enacted by Congress to the fullest extent possible. Our commitment to border security and that mission will not 

waiver. 

We know from experience that targeted enforcement works. Over 

the past few years we have developed effective strategies to disrupt 

and dismantle smuggling organizations and their distribution networks, leading to a safe border. 

Operations and initiatives, such as Operation Streamline, the 

Alien Transfer Exit Program, the Mexican Interior Repatriation 

Program, and the Operation Against Smugglers Initiative on Safety 

and Security, are focused on delivering targeted consequences to 

those offenders, thus breaking the smuggling cycle. Collectively, 

they represent the consequence delivery system that aids the overarching effort to improve the safety and security of our border, evidenced by reductions in both recidivism and reapprehension this 

past year. 

Understanding the greatest risk lies along our border is critical 

to our flexibility in addressing these risks. As CBP applies targeted 

enforcement to areas of evolving threat, mobile response capability 

is critical through timely and effective resolution. 

Now, CBP does not own the corner market in our National security efforts. We have learned that it requires a whole-of-Government approach and law enforcement, each with our own duties, responsibilities, jurisdictional authorities, and at all levels of Government. 

We have gained a greater appreciation for the differentiation between mere collaboration and operational integration with our Federal, State, local, Tribal, and international partners. The key to a 

safe and secure border lies in the strength of joint planning and 

execution towards common objectives. Our path forward and our 

strategy will be risk-based. 

We will increasingly depend on information and intelligence to 

describe the intent and capabilities of the opposition, defining the 

threat while continuously accessing our border vulnerabilities. We 

will train and deploy the workforce to be more mobile, agile, and 

flexible against all threats. 

Thank you for the opportunity to testify today. I look forward to 

your questions. 

[The statement of Chief Fisher follows:] 
16 

PREPARED STATEMENT OF MICHAEL J. FISHER

OCTOBER 4, 2011 

INTRODUCTION

Chairwoman Miller, Ranking Member Cuellar, and distinguished Members of the 

committee, it is a privilege and an honor to appear before you today to discuss U.S. 

Customs and Border Protection’s (CBP) efforts to secure our Nation’s borders. I am 

Michael J. Fisher, Chief of the United States Border Patrol (USBP). 

As America’s front-line border agency, CBP’s priority mission is to protect the 

American public, while facilitating lawful travel and trade. To do this, CBP has deployed a multi-layered, risk-based approach to enhance the security of our borders 

while facilitating the flow of lawful people and goods entering the United States. 

This layered approach to security reduces our reliance on any single point or program that could be compromised. It also extends our zone of security outward, ensuring that our physical border is not the first or last line of defense, but one of 

many. 

OVERVIEW OF BORDER SECURITY EFFORTS

Over the past 2 years, the Department of Homeland Security (DHS) has dedicated 

historic levels of personnel, technology, and resources to the Southwest border. We 

have more than doubled the size of the Border Patrol since 2004; tripled the number 

of Border Liaison Officers working with their Mexican counterparts; doubled personnel assigned to Border Enforcement Security Task Forces; and began screening 

southbound rail and vehicle traffic for the illegal weapons and cash that are helping 

fuel the cartel violence in Mexico. CBP also received approval from the U.S. Department of Transportation’s Federal Aviation Administration to increase the miles of 

airspace available for Unmanned Aircraft System (UAS) operations, enabling CBP 

to deploy UASs from the eastern tip of California extending east across the border 

into Texas—covering the entire Southwest border for the first time. Further, in January of this year, CBP’s operational airspace along the Northern border expanded 

by nearly 900 miles, allowing CBP UAS operations from the Lake-of-the-Woods region in Minnesota, to the vicinity of Spokane, Washington. 

In addition, we have now constructed 650 miles of fencing out of nearly 652 miles 

where Border Patrol field commanders determined it was operationally required 

along the Southwest border, including 299 miles of vehicle barriers and 351 miles 

of pedestrian fence. We have also improved our technological capabilities, including 

the installation of remote video surveillance cameras in the Detroit and Buffalo Sectors, among other technologies. 

Further, the Southwest border security supplemental legislation (based on the administration’s recommendations) was signed into law in August 2010. It provided 

DHS additional capabilities to secure the Southwest Border at and between our 

ports of entry and to reduce the illicit trafficking of people, drugs, currency, and 

weapons. Specifically, this bill provided funding for improved tactical communications systems along the Southwest border; two additional CBP unmanned aircraft 

systems; 1,000 new Border Patrol agents; 250 new CBP officers at ports of entry; 

and two new forward operating bases to improve coordination of border security activities. 

In addition, President Obama recently authorized the extension of the use of 

1,200 National Guard troops through December 31, 2011 at the Southwest border 

to contribute additional capabilities and capacity to assist law enforcement agencies, 

and as a bridge to longer-term enhancements while the administration brings new 

assets online and pursues additional people, technology, and infrastructure dedicated to effective border management and security. These National Guard troops are 

providing Entry Identification Teams and criminal investigation analysts in support 

of these efforts. That support is allowing DHS to bridge the gap and hire the additional agents to support Southwest Border enforcement efforts, and the Departments of Defense and Homeland Security agreed to equally fund the National Guard 

deployment’s cost. However, Congress did not approve DHS’ reprogramming requests, and the Department of Defense has covered the full cost of this National 

Guard support. 

WHOLE-OF-GOVERNMENT APPROACH

Our overarching border security efforts require a whole-of-Government approach 

that emphasizes the importance of joint planning and intelligence sharing. In recent 

months, we have taken additional steps to bring greater unity to our enforcement 

efforts, to expand coordination with other agencies, and to improve response times. 
17 

In February, we announced the Arizona Joint Field Command—an organizational 

realignment that brings together Border Patrol, Air and Marine, and Field Operations under a unified command structure to integrate CBP’s border security, commercial enforcement, and trade facilitation missions to more effectively meet the 

unique challenges faced in the Arizona area of operations. 

Another example of our collaborative efforts along the Southwest Border is the Alliance to Combat Transnational Threats (ACTT) in Arizona. The ACTT is enforcement collaboration, established in September 2009, which leverages the capabilities 

and resources of more than 60 Federal, State, local, and Tribal agencies in Arizona 

and the Government of Mexico to combat individuals and criminal organizations 

that pose a threat to communities on both sides of the border. Through ACTT, we 

work with our international, Federal, State, local, and Tribal law enforcement partners to increase collaboration; to enhance intelligence and information sharing; and 

to develop coordinated operational plans that strategically leverage the unique missions, capabilities, and jurisdictions of each participating agency. Since its inception, 

ACTT has resulted in the seizure of more than 2.2 million pounds of marijuana, 

8,200 pounds of cocaine, and 2,700 pounds of methamphetamine; the seizure of more 

than $18 million in undeclared U.S. currency and 343 weapons; over 16,000 aliens 

denied entry to the United States at Arizona ports of entry due to criminal background or other disqualifying factors; and approximately 342,000 apprehensions between ports of entry. 

In partnership with DEA, and with support from the Department of Defense, 

DHS has achieved initial operational capability for the new Border Intelligence Fusion Section (BIFS) as part of the El Paso Intelligence Center. This new section will 

integrate and synthesize all available Southwest border intelligence from Federal, 

State, local, and Tribal partners to create a common intelligence picture to support 

border enforcement activities on the Southwest border. By disseminating real-time 

operational intelligence to our law enforcement partners in the region, BIFS will 

streamline and enhance coordinated Federal, State, local, and Tribal operations 

along the border. Additionally, we are continuing to work with Mexico to develop 

a cross-border communications network that will improve our ability to coordinate 

law enforcement and public safety issues. 

Along the Northern Border, CBP has established the Operational Integration Center (OIC), located at Selfridge Air National Guard Base in Harrison Township, 

Michigan. The OIC is a demonstration project aimed at enhancing border security 

and situational awareness for CBP and its mission partners along a critical area of 

the Northern Border by integrating personnel and technology. In terms of personnel, 

the OIC allows for a collaborative work area and communications capabilities for all 

components of CBP, the U.S. Coast Guard, other DHS entities, Federal law enforcement agencies, State and local law enforcement, and appropriate Canadian agencies. 

The OIC brings together information feeds, including radar and camera feeds, blue 

force tracking, database query from databases not previously available to CBP, remote sensor inputs, Remote Video Surveillance Systems, and Mobile Surveillance 

Systems feeds, and video from various POE, tunnel and local traffic cameras. This 

personnel and technology integration may serve as a model for technology deployments on the Northern Border. 

CBP is engaged with several National initiatives which all contribute to the border security mission. Our officers and agents provide support to the Integrated Border Enforcement Teams (IBET) which operates as intelligence-driven enforcement 

teams comprised of U.S. and Canadian federal, state/provincial and local law enforcement personnel. By incorporating integrated mobile response capability (air, 

land, marine), the IBETs provide participating law enforcement agencies with a 

force multiplier—maximizing border enforcement efforts. Our personnel additionally 

provide manpower to Border Enforcement Security Task Force (BEST) units, multiagency teams which collaborate to identify, disrupt, and dismantle criminal organizations which pose significant threats to border security. 

In addition to these efforts, Operation Stonegarden (OPSG) grants are available 

and designed to support State, local, and Tribal law enforcement agencies that are 

involved in border security. While the grants themselves are managed by the Federal Emergency Management Agency, the participating agencies are required to 

submit operations orders to the Border Patrol. The Border Patrol is responsible for 

ensuring that all operations funded by this grant have a direct nexus to border security. 

CBP has also partnered with State and local law enforcement for certain outbound operations at POEs. Over the years, the personnel at the POEs along the 

Southwest Border have developed good working relationships with State and local 

law enforcement agencies. State and local law enforcement officers are a tremendous asset to CBP. They act as force multipliers, bringing their knowledge of the 
18 

community, and their understanding of local criminal elements. Joint outbound operations target proceeds, firearms, ammunition, stolen vehicles, and fugitives. 

Additionally, a Processing, Exploitation, and Dissemination cell has been established at the Air and Marine facilities in Riverside, California, and Grand Forks, 

North Dakota, to provide essential information to law enforcement across the Nation—increasing understanding of evolving threats and providing the foundation for 

law enforcement entities to exercise targeted enforcement in the areas of greatest 

risk. This intelligence-driven approach prioritizes emerging threats, vulnerabilities 

and risks, greatly enhancing our border security efforts. 

Building on a legacy initiative, in 2005, CBP created a robust Information Sharing 

Environment known as ‘‘BigPipe’’, which links equipped CBP aviation assets, via the 

internet and information sharing protocols, to Federal, State, local, and Tribal law 

enforcement agencies in order to provide near-real time video and sensor data—enhancing the situational awareness of officers across the law enforcement community. 

Additionally, BigPipe is used extensively by numerous Federal, State, local, and 

Tribal agencies during warrant presentations, controlled deliveries, search and rescue, and surveillance operations. 

CONSEQUENCE DELIVERY SYSTEM

CBP conducts operations along the entirety of the nearly 2,000 miles of border 

between Mexico and the States of California, Arizona, New Mexico, and Texas. The 

ability of the Border Patrol, U.S. Immigration and Customs and Enforcement (ICE), 

our strategic partners, and the judicial system to impose consequences on those entering the United States illegally varies greatly between each State, judicial district, 

and Border Patrol sector. 

To break the smuggling cycle and deter a subject from attempting further illegal 

entries or participating in a smuggling enterprise, CBP has developed, with the support of ICE, a new Consequence Delivery System (CDS) that guides management 

and agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity. 

The CDS uses a combination of criminal and administrative consequences developed by the Border Patrol, and implemented with the assistance of ICE, targeting 

specific classifications of offenders, effectively breaking the smuggling cycle along 

the border of the United States. This allows the U.S. Border Patrol to match the 

individual and the consequence in the most effective and efficient way. 

OVERVIEW OF REPATRIATION AND CRIMINAL PROSECUTION CONSEQUENCES

Standard criminal prosecutions are the traditional means for imposing consequences on aliens who have committed criminal acts. Aliens entering the United 

States without being lawfully admitted are subject to prosecution for illegal entry. 

If an alien has been previously ordered removed, they are amenable to a felony 

charge of reentry after removal. Criminal prosecutions are essential to border security operations; however the volume of border-related illegal activity restricts the 

percentage of criminal cases that the Border Patrol is able to process within the 

criminal justice system. Due to limitations imposed by the labor, detention costs, 

and the expense of criminal prosecutions and administrative proceedings, repatriation is often the preferred consequence. 

The following initiatives represent examples of the Consequence Delivery System 

that aids the overarching effort to improve the safety and security of the border: 

• Operation Against Smugglers Initiative on Safety and Security (OASISS) is a 

bilateral, criminal prosecution agreement between the United States and Mexico. Since 2005, this program allows for Mexican citizens found smuggling aliens 

in the United States to be prosecuted by the government of Mexico. 

• Streamline is a criminal prosecutions program targeting individuals who illegally enter the United States through defined geographic locations. Consequences are imposed through consistent application of criminal sanctions to 

reduce illicit cross-border activity. Streamline is a multi-agency effort that relies 

heavily upon the collaborative efforts of CBP, the U.S. Magistrate, the Federal 

Judiciary, the U.S. Attorney’s Office, the U.S. Marshals Service, ICE, and the 

Executive Office of Immigration Review. 

• Efficient Immigration Court Hearings: CBP is working with EOIR to increase 

the efficiency of immigration court hearings by placing aliens apprehended 

along the border in removal proceedings in courts close to the border, eliminating the need to acquire detention space to hold an alien while awaiting an 

appearance before an Immigration Judge. The judge’s Order of Removal establishes that the subject cannot apply to legally re-enter the United States for a 
19 

period of 10 years. Subjects re-arrested are amenable to be charged criminally 

with a felony, Illegal Re-entry after Deportation. 

• Alien Transfer Exit Program (ATEP) repatriates aliens into regions far from 

their entry location to disrupt future coordination with smugglers after their arrest and removal. ATEP is designed to disrupt the smuggling cycle that often 

reunites removed aliens with their hired smugglers to attempt another illegal 

entry. 

• Mexican Interior Repatriation Program (MIRP) is a joint CBP and ICE effort. 

The program removes Mexican nationals to the interior of Mexico on a voluntary basis, away from high-risk areas of the Sonora Desert, where temperatures spike and exposure-related deaths peak during summer months. The objective of the program is to save lives and disrupt the human smuggling cycle. 

At-risk aliens are identified for participation by factors that include age, physical condition, and travel status. 

• Expedited removal proceedings are initiated against aliens who are present 

without admission and encountered by an immigration officer within 100 air 

miles of the U.S. border, and not physically present in the United States for 

the 14-day period immediately before their arrest. Aliens processed for expedited removal procedures are not detained pending a hearing before an immigration judge, but are immediately processed for a formal administrative removal order. If an alien expeditiously removed returns illegally, he may be considered for criminal prosecution (Illegal Re-entry after Removal). 

• Reinstatement of Removal provides the ability to reinstate a previously executed removal order with respect to aliens who illegally reenter the United 

States. If an alien is found to have reentered the United States after removal, 

the prior order of removal is reinstated from its original date and is not subject 

to review. In most cases, it is not necessary to detain aliens processed for reinstatement pending a hearing before an immigration judge. Reinstatement does 

not preclude criminal prosecution in accordance with local procedures and 

guidelines. Much like expedited removal, reinstatement of a final order is an 

efficient means for immigration officers to remove aliens who fit within this category from the United States without referral to an immigration judge. 

• Voluntary Return is used at the discretion of Border Patrol agents and their 

supervisors to allow an alien to depart voluntarily from the United States in 

lieu of being subject to removal proceedings. Eligible aliens may prefer to seek 

voluntary return rather than undergo formal removal proceedings. Voluntary 

return reduces processing time for agency personnel, while at the same time allowing the alien to avoid the potential penalties attached to formal removal proceedings. 

• Warrant of Arrest/Notice to Appear is used when Border Patrol agents make 

an arrest and the alien is to be detained in DHS custody pending a hearing before an immigration judge. Generally speaking, whenever an alien is detained 

for formal immigration proceedings, the commitment of labor, and resources involved in the removal process are significantly higher. 

We know from experience that targeted enforcement works. Collective understanding of where the greatest risks lie along our borders is critical to our flexibility 

in addressing these risks. As CBP applies targeted enforcement to areas of evolving 

threat, mobile response capability is critical to timely and effective resolution. This 

mobile response capability must actively engage all CBP components and our partners in order to ensure proper synchronization and effectiveness. 

IMPACT OF IMMIGRATION ENFORCEMENT EFFORTS

Over the past 2 years, the administration has established clear priorities that govern how DHS uses its immigration enforcement resources. These priorities focus resources on enhancing border security and identifying and removing criminal aliens, 

those who pose a threat to public safety and National security, individuals recently 

apprehended at the border while illegal entering, repeat immigration law violators, 

and other individuals prioritized for removal. While additional work remains, DHS 

has made tremendous progress in its effort to focus resources on these enforcement 

priorities. 

In light of law enforcement priorities and limited resources, ICE has implemented 

policies that call for the utilization of prosecutorial discretion, when appropriate, in 

order to enhance the allocation of resources devoted to the removal of priority 

aliens. As a result of these policies, ICE has been able to increase its support of 

Border Patrol operations along the Southwest Border. The detention beds and immigration agents that are provided by ICE ERO enhance Border Patrol’s ability to 

apply consequences through the CDS which have the greatest deterrent effect on in-
20 

dividuals apprehended at the border after illegally crossing. ICE’s focus on I–9 audits has eliminated many of the jobs that served as magnets, drawing people to illicitly cross the border. Equally important is the deterrent effect provided by ICE’s 

prioritization of recent border entrants, criminal offenders, and repeat immigration 

law violators. 

The strategic reallocation of resources to the Southwest Border and prioritization 

of recent border entrants, convicted criminals, and repeat immigration law violators 

has helped CBP continue to drive down illicit cross border traffic. There is no doubt 

that the historic results achieved by the Border Patrol along the Southwest Border 

are due, in part, to the assistance of ICE and the establishment of these policies. 

CONCLUSION

Chairwoman Miller, Ranking Member Cuellar, and distinguished Members of the 

committee, thank you for this opportunity to testify about the work of U.S. Customs 

and Border Protection, and our efforts in securing our borders. 

I look forward to answering your questions at this time. 

Mrs. MILLER. Thank you very much, Chief. 

Mr. Kibble. 

STATEMENT OF KUMAR C. KIBBLE, DEPUTY DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF 

HOMELAND SECURITY 

Mr. KIBBLE. Good morning, Chairman Miller, Ranking Member 

Cuellar, and distinguished Members of the subcommittee. On behalf of Secretary Napolitano and Director Morton, thank you for 

the opportunity to address you today regarding ICE’s mission to 

promote homeland security and public safety through the criminal 

and civil enforcement of Federal laws governing border control, customs, trade, and immigration. 

The men and women of ICE do this every day by carrying out 

ICE’s role in protecting the borders through smart and effective immigration enforcement; securing and managing our borders against 

illicit trade, travel, and finance; and preventing terrorism and enhancing National security. In the last 2.5 years we have made unprecedented strides across our agency, and as a result, we have 

made communities across America, and Americans around the 

world, safer and more secure. 

There has been much discussion in recent months about the administration’s approach to immigration enforcement. The administration’s policies have been alternatively described as either an unprecedented effort to deport record numbers of individuals arbitrarily, or as an administrative amnesty that ignores the Government’s responsibility to enforce immigration laws. Both characterizations are inaccurate. 

Over the past few years, ICE has worked to develop guidance to 

help focus immigration enforcement efforts on our highest priorities: Promoting public safety, border security, and the integrity of 

the immigration system. This approach has yielded impressive results. 

In fiscal year 2010, ICE removed a record 195,772 criminal 

aliens, more than any other year in history, and 81,000 more criminal removals than in fiscal year 2008. Nearly 50 percent of the 

aliens we removed in fiscal year 2010 have been convicted of 

crimes. 

This trend has continued. We will again have removed a record 

number of criminal aliens from the country in this most recent fiscal year, 2011. 
21 

This prioritized approach will also continue to enhance ICE’s historic partnership with Customs and Border Protection. This partnership includes the dedication of ICE resources to the apprehension and detention of recent border-crossers. 

The record-setting results achieved along the Southwest Border 

are attributable, in part, to this unprecedented partnership. Notably, this process will allow DHS to free up additional resources that 

can be shifted to the Southwest Border to aid and, again, promote 

border security. 

As I have stated, the administration has established the identification and removal of public safety and National security threats 

as a top priority. To aid in this effort, we have expanded the use 

of Secure Communities, which identifies individuals arrested and 

booked into jail for a violation of a State or local criminal offense, 

convicted criminals, gang members, and other enforcement priorities in our jails and prisons. 

Since its inception in 2008, more than 97,600 aliens convicted of 

crimes, including more than 35,500 convicted of aggravated felony 

offenses, were removed from the United States after identification 

through Secure Communities. These removes significantly contributed to a 71 percent increase in the overall percentage of convicted 

criminals removed by ICE. 

In March 2009 the administration launched the Southwest Border Initiative, to bring unprecedented focus and intensity to the 

Southwest Border security. In support of this initiative, ICE has 

targeted considerable resources at the Southwest Border to investigating transnational crime stemming from and resulting in the 

interdiction of contraband, such as firearms, ammunition, bulk 

cash currency, stolen vehicles, human smuggling, and the detection 

of tunnels and other border crime at and between ports of entry 

along the Southwest Border. 

Since 2006, DHS has leveraged the Border Enforcement Security 

Taskforce, or BEST, model, which combines Federal, State, Tribal, 

local, and foreign law enforcement and intelligence resources to 

synchronize efforts to combat emerging and existing threats. Thus 

far, in fiscal year 2011, ICE-led BESTs have made almost 1,600 

criminal arrests, seized over 200,000 pounds of narcotics, and more 

than $11 million in U.S. currency and monetary instruments. Some 

733 defendants have been convicted thus far in this most recent fiscal year. 

Enforcing our immigration priorities and obligations is neither 

simple nor easy, and we are committed to getting it right. We all 

agree that we need fair, consistent, and enforceable immigration 

laws that encourage the free flow of commerce while respecting 

both security and the rights of individuals. 

While we are committed to being smart and tough with our enforcement, it remains the administration’s position that Congress 

needs to take up immigration reform. We look forward to working 

with Congress to this end. 

Thank you, again, for the opportunity to appear before you today. 

I am proud of the work our ICE teams do each and every day to 

help strengthen and secure our homeland, and we are engaging in 

record-breaking immigration enforcement strategies. 
22 

I appreciate your interest in this issue and your continued support of ICE, and I will be pleased to answer any questions you may 

have. 

[The statement of Mr. Kibble follows:] 

PREPARED STATEMENT OF KUMAR C. KIBBLE

OCTOBER 4, 2011 

INTRODUCTION

Chairman Miller, Ranking Member Cuellar, and distinguished Members of the 

subcommittee: On behalf of Secretary Napolitano and Director Morton, thank you 

for the opportunity to address you today regarding U.S. Immigration and Customs 

Enforcement (ICE). As the investigative arm of the Department of Homeland Security (DHS), ICE’s primary mission is to promote homeland security and public safety 

through the criminal and civil enforcement of Federal laws governing border control, 

customs, trade, and immigration. The men and women of ICE do this every day by 

carrying out ICE’s role in: (1) Protecting the borders through smart and effective 

immigration enforcement; (2) securing and managing our borders against illicit 

trade, travel, and finance; and (3) preventing terrorism and enhancing National security. 

We are effectively managing our resources by carrying out our responsibilities in 

a smart, fair, and efficient manner. In the last 21⁄2 years, we have made unprecedented strides across our agency, and as a result, we have made communities across 

America, and Americans around the world, safer and more secure. I welcome this 

opportunity today to share with you our successes and our opportunities as we move 

into a new year. 

Protecting the Borders Through Smart and Effective Immigration Enforcement 

There has been much discussion in recent months about the administration’s approach to immigration enforcement. The administration’s policies have been alternatively described as either an unprecedented effort to deport record numbers of individuals arbitrarily, or as an administrative amnesty that ignores the Government’s responsibility to the enforce immigration laws. Both characterizations are inaccurate. The administration’s policy guidance governing immigration enforcement 

makes this clear, as does its enforcement record. ICE has worked to develop guidance to help focus ICE’s enforcement efforts on our highest priorities, including: 

Aliens who pose dangers to National security or risks to public safety; recent illegal 

entrants; repeat violators of immigration law; and aliens who are fugitives from justice or otherwise obstruct immigration controls. 

This approach has yielded results. DHS has produced record immigration enforcement. In fiscal year 2010, ICE removed a record 195,772 criminal aliens, more than 

any other year in history, and 81,000 more criminal removals than in fiscal year 

2008. Nearly 50 percent of the aliens we removed in fiscal year 2010 had been convicted of criminal offenses. Removing these individuals helps to promote public safety in communities across the country. We expect that this trend will continue, and 

that this fiscal year, we will again remove a record number of criminal aliens from 

the country. 

Of those we removed in 2010 who lacked criminal convictions, more than twothirds were either recent border entrants or repeat immigration law violators. As 

such, and unlike ever before, an overwhelming majority of the aliens removed fell 

into one of ICE’s enforcement priorities. In fact, the number of individuals removed 

who could not definitively be placed into at least one of the priority categories—for 

example, those who were not immigration fugitives, repeat immigration law violators, or removed at the border—dropped from more than 19 percent in 2008 to less 

than 10 percent in 2010. We expect to see similar results in fiscal year 2011 as well. 

Prosecutorial Discretion 

DHS must ensure that our immigration enforcement resources are focused on the 

removal of those who constitute our highest priorities, specifically individuals who 

pose threats to public safety such as criminal aliens and National security threats, 

as well as repeat immigration law violators, recent border entrants, and fugitives 

from justice or those who otherwise obstruct immigration controls. There are a significant number of cases currently pending before U.S. Department of Justice (DOJ) 

immigration courts, many of these will take years to resolve. Tens of thousands 

more are pending review in Federal courts. Each of these cases costs taxpayers 

thousands of dollars, and those involving low-priority individuals divert resources 
23 

and attention from high-priority cases. Due to the fiscal limitations, the expenditure 

of significant resources on cases that fall outside of DHS enforcement priorities 

hinders our public safety mission by consuming litigation resources and diverting 

resources away from higher-priority individuals. 

Prosecutorial discretion has always been exercised in order to prioritize the use 

of immigration enforcement resources. The Immigration and Naturalization Service 

under the Department of Justice and later ICE under DHS has used discretion on 

a case-by-case basis where we feel it has been appropriate and responsible to do so, 

and where it enhances our ability to meet our priorities. In keeping with this practice, DHS and DOJ have recently established an interagency working group to implement existing guidance regarding the appropriate use of prosecutorial discretion 

in a manner consistent with our enforcement priorities. 

This interagency working group will work to determine that immigration judges, 

the Board of Immigration Appeals, and the Federal courts are focused on adjudicating high-priority cases more swiftly by relieving pressure on the judicial system 

by identifying very low-priority cases and on a case-by-case basis, setting those 

cases aside. This will allow for additional DHS resources to be focused on the identification and removal of those individuals who pose the greatest threats. In part, this 

process will accelerate the removal of high-priority aliens from the country. At no 

point will any individuals be granted any form of ‘‘amnesty.’’ There will be no reduction in the overall levels of enforcement and removals—only a more effective way 

of marshaling our resources towards our highest-priority cases and thus, increasing 

the number of criminal aliens and repeat immigration violators removed from the 

country. 

Likewise, it will enhance ICE’s historic partnership with U.S. Customs and Border Protection (CBP). Over the past few years, ICE has worked closely with CBP 

to increase efforts to prevent illicit trade and travel across our borders. This partnership includes the dedication of ICE officers, agents, and detention facilities to the 

apprehension and detention of recent border-crossers. The record-setting results 

achieved along the Southwest Border are attributable, in part, to this unprecedented 

partnership. Notably, this process will allow DHS to free up additional resources 

that will be dedicated to the Southwest Border. 

Secure Communities 

As I have stated, the administration has established the identification and removal of public safety and National security threats as a top priority. To aid in this 

effort, we have expanded the use of the Secure Communities program, which identifies individuals arrested and booked into jail for a violation of a State or local criminal offense, convicted criminals, gang members, and other enforcement priorities in 

our jails and prisons. 

ICE has acknowledged that it faced challenges in rolling out the Secure Communities program initially, including in explaining how the program works and which 

entities are required to participate. Nevertheless, Secure Communities has proven 

to be one of our best tools to help focus our immigration enforcement resources on 

our highest enforcement priorities, including convicted criminals and egregious immigration law violators, and ICE remains fully committed to the program. 

Since its inception on October 27, 2008, through September 18, 2011, more than 

97,600 aliens convicted of crimes, including more than 35,500 convicted of aggravated felony offenses were removed from the United States after identification 

through Secure Communities. These removals significantly contributed to a 71 percent increase in the overall percentage of convicted criminals removed by ICE, with 

81,000 more criminal alien removals in fiscal year 2010 than in fiscal year 2008. 

As a result of the increased focus on criminals, removals of non-criminals fell by 23 

percent during the same time period. In addition, over 25,000 aliens who were previously removed and reentered or who failed to leave the United States following 

the issuance of a final order of removal, deportation or exclusion, who are also DHS 

enforcement priorities, were removed through Secure Communities over the past 2 

years. 

Earlier this year, as part of the administration’s continued commitment to smart, 

effective immigration enforcement, ICE announced key improvements to the Secure 

Communities program. They included: 

• Establishing a task force, comprised of law enforcement, State and local government officials, prosecutors, and immigration advocates, as part of the Homeland 

Security Advisory Council to develop recommendations on how to improve Secure Communities so that it can better focus on identifying and removing individuals who pose true public safety threats. ICE is currently reviewing recommendations submitted by the Task Force; 
24 

• Developing a new policy to protect victims of and witnesses to crimes, to ensure 

that the crimes continue to be reported and prosecuted; 

• Revising the detainer form that ICE sends to local jurisdictions to emphasize 

long-standing guidance that State and local entities are not to detain an individual for more than 48 hours pursuant to the detainer; 

• Working with the DHS Office for Civil Rights and Civil Liberties (CRCL) on 

regular and in-depth statistical monitoring of the program; 

• Creating a series of training sessions in collaboration with CRCL designed primarily for use by front-line State and local law enforcement agency personnel 

to address civil rights and civil liberties issues that may be relevant when Secure Communities is activated for a jurisdiction; and 

• Agreeing to a protocol for CRCL to take the lead in investigating complaints 

of alleged civil rights violations for jurisdictions where Secure Communities is 

activated. 

We are confident these changes will aid in our continued efforts to strengthen and 

improve Secure Communities. We will continue to expand Secure Communities to 

additional jurisdictions, and we look forward to Nation-wide deployment by the end 

of 2013. We will also continue to examine the program’s effectiveness and invest in 

additional training and education efforts. 

Worksite Enforcement 

As part of its immigration enforcement efforts, ICE has been pursuing a comprehensive worksite enforcement strategy to deter unlawful employment and drive 

a culture of compliance with the Nation’s immigration-related employment laws. 

The administration is focused on conducting criminal investigations and prosecuting 

employers who exploit or abuse their employees and those who have a history of 

knowingly and repeatedly employing an illegal workforce. 

Our strategy has been designed to: (1) Penalize employers who hire illegal workers; (2) deter employers who are tempted to hire illegal workers; and (3) encourage 

all employers to take advantage of easy to use and well-crafted compliance tools. 

The success of our approach is evident in the statistics. As of September 17, 2011, 

ICE has initiated 3,015 investigations, which is 154 percent more than in all of fiscal year 2008. In fiscal year 2010, ICE arrested 196 employers for criminal worksiterelated immigration violations, surpassing the previous high of 135 arrests in fiscal 

year 2008. So far in fiscal year 2011, ICE has also issued a record 2,393 notices of 

inspection, a more than a 375 percent increase from the number issued in all of fiscal year 2008. This year, ICE has issued 331 final orders totaling $9 million in fines 

levied on employers compared to 18 final orders issued totaling $675,000 in fiscal 

year 2008. In addition, fiscal year 2010 worksite investigations resulted in a record 

$36.6 million in judicial fines, forfeitures, and restitutions. 

Enforcing our immigration priorities and obligations is neither simple nor easy, 

and we are committed to getting it right. We all agree that we need fair, consistent, 

and enforceable immigration laws that encourage the free flow of commerce while 

respecting both security and the rights of individuals. We are committed to making 

changes within the immigration system that make sense and are achievable. While 

we are committed to being smart and tough with our enforcement, it remains the 

administration’s position that Congress needs to take up immigration reform. We 

look forward to working with Congress to this end. 

Securing and Managing our Borders Against Illicit Trade, Travel, and Finance 

Southwest Border Initiative 

In March 2009, the administration launched the Southwest Border Initiative to 

bring unprecedented focus and intensity to Southwest Border security, coupled with 

a reinvigorated, smart, and effective approach to enforcing immigration laws in the 

interior of our country. In support of this initiative, ICE has targeted considerable 

resources at the Southwest Border to address the activities associated with 

transnational criminal organizations, including the interdiction of contraband such 

as firearms, ammunition, bulk cash currency, stolen vehicles, human smuggling, 

and the detection of tunnels and other border crime at and between ports of entry 

along the Southwest Border. Under this initiative, ICE has doubled the personnel 

assigned to Border Enforcement Security Task Forces (BESTs); increased the number of intelligence analysts along the Southwest Border focused on cartel violence; 

and quintupled deployments of Border Liaison Officers to work with their Mexican 

counterparts. At the end of the third quarter of fiscal year 2011, ICE deployed special agents to high-risk locations, including Tijuana and Monterey, Mexico. ICE so 

far this year has initiated 9,748 investigations along the Southwest Border, and is 

on pace to surpass fiscal year 2010 totals. 
25 

Additionally, with the aid of $80 million provided in the 2010 Southwest Border 

supplemental appropriations, ICE has deployed 241 special agents, investigative 

support personnel, and intelligence analysts to the border. Indeed, ICE now has onequarter of all its special agents assigned to the Southwest Border, more agents and 

officers along the border than ever before. 

Border Enforcement and Security Task Forces (BESTs) 

In fiscal year 2011, ICE also continued to bolster border security through the efforts of its BESTs, which bring together Federal, State, local, territorial, Tribal, and 

foreign law enforcement. Thus far in fiscal year 2011, ICE-led BESTs have made 

1,565 criminal arrests, 814 administrative arrests, and obtained 757 indictments; 

seized 200,278 pounds of illegal drugs and $11.4 million in U.S. currency and monetary instruments. Some 733 defendants have been convicted thus far in fiscal year 

2011. 

Illicit Finance Investigations 

One of the most effective methods for dismantling transnational criminal organizations is to attack the criminal proceeds that fund their operations. In coordination 

with public and private partners, ICE works to seize illicit proceeds derived from 

and used for criminal activities, and to shut down the mechanisms used to retain 

and transfer these funds by countering bulk cash smuggling within the U.S. financial, trade, and transportation sectors targeted by criminal networks. 

ICE’s bulk cash smuggling investigations are coordinated through the ICE-led 

Bulk Cash Smuggling Center, from which we provide real-time operational and tactical support to Federal, State, and local officers involved in bulk cash smuggling 

seizures. In 2010, ICE, in partnership with the Drug Enforcement Administration, 

utilized the El Paso Intelligence Center (EPIC) to tackle bulk cash smuggling. This 

partnership ensures improved collaboration across the Federal Government for bulk 

cash smuggling investigations 24 hours a day, 7 days a week. 

International Partners and Cooperation 

ICE works closely with our international partners to disrupt and dismantle 

transnational criminal organizations. As part of these efforts, ICE currently maintains nine vetted units world-wide. These units are composed of highly-trained host 

country counterparts that have the authority to investigate and enforce violations 

of law in their respective country. Because ICE officials working overseas do not 

possess law enforcement or investigative authority in host countries, the use of vetted units enables ICE to dismantle, disrupt, and prosecute transnational criminal 

organizations while respecting the sovereignty of the host country. 

In fiscal year 2010, Transnational Criminal Investigative Units (TCIUs) in Mexico, Colombia, and Ecuador played a central role in Operation Pacific Rim—an ICEled investigation that dismantled one of the most powerful and sophisticated bulk 

cash and drug smuggling drug trafficking organizations in the world. As a result 

of international cooperation, this operation resulted in ten guilty pleas, 21 indictments, and 22 arrests along with seizures totaling over $174 million in currency, 

3.8 tons of cocaine, $37 million in criminal forfeitures, and $179 million in property. 

During 2011, two more TCIUs became operational and ICE plans to expand additional TCIUs in fiscal year 2012. 

Preventing Terrorism and Enhancing National Security 

As the largest investigative arm of DHS, ICE enhances National and border security by interrupting the illicit flow of money, merchandise, and contraband that supports terrorist and criminal organizations. As of the end of the third quarter of fiscal 

year 2011, ICE has seized $363 million in currency, 1.4 million pounds of narcotics 

and other dangerous drugs, and $272 million worth of contraband and other illegal 

merchandise. In addition, ICE agents and officers responded to 1.1 million inquiries 

and calls for assistance from other Federal, State, and local law enforcement agencies through ICE’s Law Enforcement Support Center (LESC). 

ICE leads efforts in National security investigations through interconnected programs that prevent criminals and terrorists from using our Nation’s immigration 

system to gain entry to the United States. This includes: Investigating terrorist organizations and their actors; preventing criminal and terrorists from obtaining U.S. 

visas overseas; preventing criminal and terrorist organizations from acquiring and 

trafficking weapons and sensitive technology; and identifying and removing war 

criminals and human rights abusers from the United States, while protecting children from exploitation. 
26 

Joint Terrorism Task Force (JTTF) 

The FBI-led JTTFs are a part of a joint counterterrorism partnership between 

U.S. law enforcement agencies. Since 2007, ICE agents assigned to JTTFs have initiated 5,564 cases, resulting in approximately 1,119 criminal arrests and 2,010 administrative arrests. In fiscal year 2011, ICE special agents in Louisville, Kentucky, 

assisted in a JTTF investigation which ultimately led to the arrest of Waad Ramadan Alwan and Mohanad Shareef Hammadi. Both of these Iraqi refugees were indicted on Federal terrorism charges, as well as the murder of a U.S. person engaged 

in official duties. They both had allegedly conspired to have money and weapons 

shipped to Iraq to support the activities of al-Qaeda. In fiscal year 2012, ICE will 

continue to collaborate with our law enforcement colleagues through the FBI-led 

JTTFs. 

Visa Security Program 

The Visa Security Program (VSP) deploys ICE special agents to diplomatic posts 

world-wide to conduct visa security activities and identify potential terrorists or 

criminal threats before they reach the United States. By working closely with the 

Department of State, this program enhances National security by providing an additional level of review of persons of special interest before they enter the United 

States. ICE conducts visa security operations at 19 high-risk visa adjudication posts 

in 15 countries. 

Counter-proliferation Investigations 

ICE leads the U.S. Government’s efforts to prevent foreign adversaries from illegally obtaining U.S. military products and sensitive technology, including weapons 

of mass destruction and their components. In fiscal year 2011, ICE initiated 1,780 

new investigations into illicit procurement activities, made 583 criminal arrests, obtained 419 indictments, achieved 262 convictions, and made 2,332 seizures valued 

at $18.9 million. 

In 2010, ICE, in coordination with the World Customs Organization (WCO), 

launched ‘‘Project Global Shield,’’ an unprecedented multilateral law enforcement effort aimed at combating the illicit cross-border diversion and trafficking of precursor 

chemicals used by terrorist and other criminal organizations to manufacture improvised explosive devices by monitoring their cross-border movements. On March 22, 

2011, Global Shield was endorsed by the WCO Enforcement Committee and converted from a pilot project to a permanent program. It currently has 83 participating countries and has led to 19 arrests, 24 seizures, and chemical seizures totaling over 33 metric tons. 

Human Trafficking and Human Smuggling Investigations 

ICE works with our interagency and international partners to extend our borders 

and disrupt and dismantle international human smuggling and trafficking networks 

and organizations along their entire routes. ICE holds the directorship of the 

Human Smuggling and Trafficking Center (HSTC), an interagency information and 

intelligence fusion center and clearinghouse. The HSTC was established to facilitate 

the broad dissemination of anti-smuggling and trafficking information and help coordinate the U.S. Government’s efforts against human smuggling, human trafficking, and criminal facilitation of terrorist mobility. 

In 2010, ICE’s Office of Intelligence established its Human Trafficking Unit to develop intelligence and identify potential human trafficking investigative targets. In 

the coming fiscal year, ICE plans to expand coordination with the Departments of 

Justice and Labor to initiate additional investigations of human trafficking violations. 

Sadly, a significant number of human trafficking victims are children. ICE takes 

these cases very seriously. ICE’s ‘‘Operation Predator’’ targets and investigates 

human smugglers and traffickers of minors, as well as child pornographers, child 

sex tourists and facilitators, criminal aliens convicted of offenses against minors, 

and those deported for child exploitation offenses who have returned illegally. Since 

its launch in 2003, Operation Predator has resulted in the arrest of over 13,594 sexual predators, of which 10,975 were non-citizens. 

In fiscal year 2012, ICE will expand operations of our Child Exploitation Section 

by establishing the Child Exploitation Center and deploying Child Sex Tourism 

Traveler Jump Teams to conduct investigations of U.S. citizens traveling in foreign 

counties for the purpose of exploiting minors. ICE will also continue working to end 

human trafficking and smuggling alongside the Department’s ‘‘Blue Campaign’’—a 

DHS initiative to combat human trafficking through enhanced public awareness, 

victim assistance programs, and law enforcement training and initiatives. 
27 

CONCLUSION

Thank you so much for the opportunity to share with you the good work of Immigration and Customs Enforcement. I’m proud of the work our ICE teams do each 

and every day all around the world to help strengthen and secure our homeland; 

we’re engaging in record-breaking immigration enforcement strategies, and I am 

confident we will continue to do so. ICE’s broad authority to enforce the Nation’s 

trade, travel, finance, and immigration laws has made American communities safer. 

On behalf of the men and women of ICE, I thank you again for the opportunity to 

testify on these efforts. I would now welcome any questions you may have. 

Mrs. MILLER. Thank you very much, Mr. Kibble. 

The Chairwoman now recognizes Dr. Wasem, and we appreciate 

your attendance here today, Doctor. 

STATEMENT OF RUTH ELLEN WASEM, PH.D., SPECIALIST IN 

IMMIGRATION POLICY, CONGRESSIONAL RESEARCH SERVICE 

Ms. WASEM. Chairwoman Miller, Ranking Member Thompson 

and Ranking Member Cuellar, and Members of the committee, I 

am honored to be testifying before you today on behalf of the Congressional Research Service. This morning I will summarize my 

written testimony, which I would like to submit for the record, with 

three themes: The features of U.S. immigration law that are especially pertain today’s hearing, the factors that drive unauthorized 

migration, and the relevance of the recent Department of Homeland Security memorandum upon prosecutorial discretion. 

U.S. immigration law specifies a complex set of numerical limits 

and preference categories that reflect the principles of family reunification, workers with needed skills, protection of refugees, and diversity of origin. The law also provides for temporary admission of 

foreign nationals, such as tourists, students, and workers. In addition to the provisions in the law over who and how many may be 

admitted, the law establishes a system of immigration authorities, 

tools, and procedures to control unauthorized migration and to enforce the law against those who violate it. 

Immigration law further targets special categories of foreign nationals for exclusion and removal. Among these targeted categories 

are criminal aliens and those who pose National security risks. 

The 1986 Immigration Reform and Control Act was the last 

major law that allowed unauthorized aliens living in the United 

States to legalize their status. As you can see from Figure 1, the 

estimated number of unauthorized resident aliens has steadily increased since then, peaking in 2007. 

The research points to various factors that have contributed to 

the increase in unauthorized resident aliens over the past 2 decades as well as the recent leveling off in these trends. Unauthorized migration is generally attributed to the push-pull of job opportunities in the United States in contrast to the lack of opportunities in sending countries. Accordingly, the recession that began in 

December 2007 may have curbed unauthorized migration, particularly because the sectors that traditionally rely on unauthorized 

aliens—construction, services, and hospitality—have been especially hard hit. 

The number of aliens apprehended in the United States offers 

another perspective on the dynamics of unauthorized migration. 

Figure 2 compares apprehension data with the number of Border 

Patrol agents and the unemployment rate. 
28 

While it appears that apprehensions are correlated with the 

number of agents and with unemployment levels over the past decade, the empirical evidence to support a causal link with either 

labor market demands or border enforcement has not been demonstrated. Other contributing factors are in my written testimony. 

All unauthorized aliens are potentially removable. Figure 3 

shows that formal removals have grown from 30,000 in 1990 to 

over 387,000 in 2010. Since its enactment in 1952, the Immigration 

Nationality Act has given the attorney general, and more recently, 

the Secretary of Homeland Security, prosecutorial discretion in exercising the power to remove foreign nationals. 

As early as 1975, agencies have issued guidance on this that 

have been driven by humanitarian concerns, resource limitations, 

and enforcement priorities. The backdrop of these memos provide 

historical context for the latest memorandum. 

In the 2011 memorandum, the guidelines included National security or risks to public safety, recent illegal immigrants, and fugitives or other aliens who obstruct immigration controls. The 2011 

June memo, Director Morton details 18 specific factors to be considered in weighing prosecutorial discretion. 

Now, in addition to citing factors that might prioritize the removal proceeding, he also lists factors that might halt a removal 

proceeding. Some of these would include an alien has an immediate 

relative in the U.S. military, the alien is a caretaker of someone 

with physical or mental disabilities, or the alien has strong ties to 

the community. 

It is also useful to point out what the Morton memorandum does 

not do. They do not give anyone legal immigration status. They do 

not provide an employment authorization. They do not prevent the 

reopening of a removal case at a later date. 

In closing, the relevance of the memorandum on prosecutorial 

discretion may be viewed through the lens of a changing environment. Despite the recent drop, the sheer size in the unauthorized 

population has grown substantially in the past 2 decades. 

State and local governments are playing an increasing role in enforcing immigration law. Congressionally-mandated programs as 

well as technological advances have led to dramatic improvements 

in the identification of removable aliens. These dynamics serve to 

expand the pool of removable aliens at a time when the financial 

resources of the Federal Government are especially pressed. 

This concludes my formal testimony, and I look forward to your 

questions. 

[The statement of Ms. Wasem follows:] 

PREPARED STATEMENT OF RUTH ELLEN WASEM

OCTOBER 4, 2011 

Chairwoman Miller, Ranking Member Cuellar, and Members of the House Homeland Security Subcommittee on Border and Maritime Security, I am honored to be 

testifying before you today on behalf of the Congressional Research Service. This 

morning I will discuss some of the key features of U.S. immigration law that pertain 

to this hearing, the factors that drive unauthorized migration to the United States, 

and the relevance of the recent Department of Homeland Security (DHS) memoranda on prosecutorial discretion. 

Four major principles underlie U.S. immigration policy: The reunification of families, the admission of immigrants with needed skills, the protection of refugees, and 
29 

1 Customs and Border Protection inspectors tallied 163 million temporary admissions of foreign nationals to the United States during 2009. CRS Report RL31381, U.S. Immigration Policy 

on Temporary Admissions, by Ruth Ellen Wasem. 2These criteria include: Health-related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); illegal entrants; and aliens previously removed. INA 

§ 212(a). CRS Report RL32480, Immigration Consequences of Criminal Activity, by Michael John 

Garcia; CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and 

Trends, by Ruth Ellen Wasem. 3Karen Woodrow and Jeffrey Passel, ‘‘Post-IRCA Undocumented Immigration to the United 

States: An Analysis Based on the June 1988 CPS,’’ in Undocumented Migration to the United 

States, by Frank D. Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 1990). 4 Annual Estimates of the Unauthorized Immigrant Population Residing in the United States 

and Components of Change: 1987 to 1997, by Robert Warren, Office of Policy and Planning, U.S. 

Immigration and Naturalization Service, September 2000. 5 U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration and 

Claims, Hearing on the U.S. Population and Immigration, August 2, 2001. 6The Urban Institute, Undocumented Immigrants: Facts and Figures, by Jeffrey Passel, 

Randy Capps, and Michael Fix, January 12, 2004. 7 Jeffrey S. Passel and D’Vera Cohn, Trends in Unauthorized Immigration: Undocumented Inflow Now Trails Legal Inflow, Pew Hispanic Center, October 2, 2008. 

the diversity of admissions by country of origin. The Immigration and Nationality 

Act (INA) specifies a complex set of numerical limits and preference categories that 

give priorities for immigration reflecting these principles. Typically, about 1 million 

new legal permanent residents are recorded each year. The INA also provides for 

the admission of various categories of foreign nationals, who are admitted for a temporary period of time and a specific purpose. They include a wide range of categories, including tourists, students, business people, and workers.1

In addition to the system of categories, priorities and numerical limits that govern 

who and how many may be admitted, the INA establishes a system of immigration 

authorities, tools, and procedures to control unauthorized migration and to enforce 

the law against those who violate the provisions governing legal entry. The law further targets special categories of foreign nationals for exclusion and removal from 

the United States. These categories include criminals (e.g., aggravated felons, 

human traffickers, and alien smugglers) and those that pose National security risks 

(e.g., terrorists, subversives, and other threats to National security).2

The last major law that allowed unauthorized aliens living in the United States 

to legalize their status was the Immigration Reform and Control Act (IRCA) of 1986 

(Pub. L. 99–603). Figure 1 presents the estimate of 3.2 million unauthorized resident aliens in 1986. As expected after the passage of IRCA, the estimate for 1988 

dropped to 1.9 million.3 The estimated unauthorized resident alien population grew 

to 3.4 million in 1992 and to 5.0 million (subsequently revised to 5.8 million) in 

1996.4 By the close of the decade, the estimated number of unauthorized alien residents reached 8.5 million.5 The estimated number of unauthorized resident aliens 

had risen to 9.3 million by 2002.6 During the first decade after IRCA, researchers 

projected that the net growth in unauthorized aliens had averaged about 500,000 

annually; analyses done during the early 2000s estimated the average growth at 

700,000 to 800,000 unauthorized alien residents annually.7
30 

8 Jeffrey S. Passel and D’Vera Cohn, Unauthorized Immigrant Population: National and State 

Trends, 2010, Pew Hispanic Center, February 1, 2011. 9 CRS Report RL32982, Immigration Issues in Trade Agreements, by Ruth Ellen Wasem. 10 CRS Report R40002, Immigration-Related Worksite Enforcement: Performance Measures, by 

Andorra Bruno. 11Steven Camarota and Karen Jensenius, A Shifting Tide: Recent Trends in the Illegal Immigrant Population, Center for Immigration Studies, July 2009. 

The calculated number of unauthorized alien residents peaked in 2007, when 

there were estimated 12.4 million unauthorized alien residents in the United States. 

The estimates made from both the Current Population Survey (CPS) and the American Community Survey (ACS) indicated that the number dropped in 2008 and in 

2009 before leveling off in 2010.8

The research points to various factors that have contributed to the increase in unauthorized resident aliens over the past two decades as well as a leveling off of 

these trends. Historically, unauthorized migration is generally attributed to the 

‘‘push-pull’’ of prosperity-fueled job opportunities in the United States in contrast to 

limited or nonexistent job opportunities in the sending countries.9 Accordingly, the 

economic recession that began in December 2007 may have curbed the migration of 

unauthorized aliens, particularly because sectors that traditionally rely on unauthorized aliens, such as construction, services, and hospitality, have been especially 

hard-hit. 

Some researchers maintain that lax enforcement of employer sanctions for hiring 

unauthorized aliens facilitated the ‘‘pull’’ for many years and that the ratcheting up 

of work site enforcement in 2007 and 2008, along with increased investments in border security, has subsequently mitigated the flow.10 Trend data suggest a correlation, but it remains difficult to demonstrate this element empirically, especially because the increased worksite enforcement and removals were coincident with the 

housing downturn and the onset of the economic recession.11

Although most policy makers have assumed that tighter border enforcement reduces unauthorized migration, some researchers have observed that the strengthening of the immigration enforcement provisions may have inadvertently increased 

the population of unauthorized resident aliens. This interpretation, generally referred to as a caging effect, argues that increased penalties for illegal entry, coupled 

with increased resources for border enforcement disrupted the historical pattern of 

a circulatory movement of migratory workers along the Southern Border; this in 
31 

12Wayne Cornelius, ‘‘Death at the Border: Efficacy and Unintended Consequences of U.S. Immigration Control Policy,’’ Population and Development Review, vol. 27, no. 4 (December 2001); 

Wayne Cornelius, ‘‘Evaluating Recent U.S. Immigration Control Policy: What Mexican Migrants 

Can Tell Us,’’ in Crossing and Controlling Borders: Immigration Policies and Their Impact on 

Migrants’ Journeys, ed. Mechthild Baumann, Astrid Lorenz, and Kerstin Rosenhow (Farmington, MI: Budrich Unipress Ltd, 2011); Thomas J. Espenshade, ‘‘Undocumented Migration to 

the United States: Evidence from a Repeated Trials Model,’’ in Undocumented Migration to the 

United States, by Frank D. Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 

1990); Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and Mirrors: 

Mexican Immigration in an Era of Economic Integration (Russell Sage Foundation, 2002). 13For further discussion see: CRS Report R41237, People Crossing Borders: An Analysis of 

U.S. Border Protection Policies, by Alison Siskin. 14For a summary of this research, see Commission for the Study of International Migration 

and Cooperative Economic Development, Unauthorized Migration: An Economic Development 

Response, Appendix E, July 1990. 15 Not all humanitarian migrants are eligible for asylum or refugee status, and roughly 30% 

of all asylum cases in recent years have been approved. The legal definition of asylum in the 

INA is consistent with the refugee definition, which specifies that a refugee is a person who 

is unwilling or unable to return to his country of nationality or habitual residence because of 

a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. CRS Report R41753, Asylum and ‘‘Credible Fear’’ Issues 

in U.S. Immigration Policy, by Ruth Ellen Wasem. 

turn raised the stakes in crossing the border illegally and created an incentive for 

those who succeed in entering the United States to stay.12

Data on the number of aliens apprehended entering the United States offers another perspective on unauthorized migration. Figure 2 compares apprehension data 

with the number of Border Patrol agents and with the unemployment rate. While 

it appears that apprehensions are correlated to the number of agents and unemployment levels over the past decade, the empirical evidence to support a causal link 

with either labor market demands or strengthened border enforcement policies has 

not been demonstrated.13

Political instability or civil unrest at home is another element that traditionally 

has led people to risk unauthorized migration.14 Asylum seekers who enter the 

United States illegally have always been included in the estimates of the unauthorized alien population. Asylum seekers have become a smaller share of the unauthorized alien residents, however, and do not account the overall trends in the unauthorized resident aliens in recent years.15
32 

16 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Refugees 

and Border Security, Comprehensive Immigration Reform in 2009, Can We Do It and How? 

111th Cong., 1st sess., April 30, 2009. 17 CRS Report RL32235, U.S. Immigration Policy on Permanent Admissions, by Ruth Ellen 

Wasem. 18 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Refugees 

and Border Security, Comprehensive Immigration Reform in 2009, Can We Do It and How? 

111th Cong., 1st sess., April 30, 2009. 19Office of Immigration Statistics, Immigration Enforcement Actions: 2010, Department of 

Homeland Security, June 2011, http://www.dhs.gov/xlibrary/assets/statistics/publications/ 

enforcement-ar-2010.pdf. 20 All aliens must satisfy to DHS inspectors upon entry to the United States that they are 

not ineligible for admission under the grounds for inadmissibility specified in INA § 212. These 

The inadequacies in the current system of legal immigration is sometimes cited 

as another factor contributing to the growth in unauthorized alien residents.16

There are statutory ceilings that limit the type and number of immigrant visas 

issued each year, which create wait-times for visas to become available to legally 

come to the United States.17 The Immigration Amendments of 1990 cut the number 

of skilled and unskilled employment-based legal permanent residents from 27,000 

to 10,000 annually, leading some to argue that the remainder of this migrant flow 

shifted from legal to illegal pathways to work in the United States. Family members 

sometimes risk staying in the United States on an expired temporary visa or entering the United States illegally to be with their family while they wait for the visas 

to become available. It remains difficult, however, to correlate these factors or to 

guarantee that increasing the levels of legal migration would absorb the flow of unauthorized migrants.18 The recent increase in the number of aliens formally removed from the United States annually might also have had a chilling effect on foreign nationals weighing the risk of illegal presence if they would ultimately be eligible to immigrate.19

Figure 3 shows that formal removals have grown from 30,039 in 1990 to 387,242 

in 2010. Since 2001, formal removals have increased by over 100%. The trends for 

direct returns at the border and voluntary departures (i.e., permitting aliens to 

leave the United States on their own recognizance and at their own expense) within 

the interior in Figure 3 resemble that of apprehensions over the same period as depicted in Figure 2. 

All unauthorized aliens (i.e., aliens who have entered without permission or violated the terms of their visas) are potentially removable. The INA specifies six broad 

classes of foreign nationals who are removable, including persons who: 

• are inadmissible at time of entry or violate their immigration status;20
33 

include health-related grounds, criminal history, National security and terrorist concerns, becoming a public charge, seeking to work without proper labor certification, illegal entry and immigration law violations, lack of proper documents, ineligibility for citizenship, and aliens previously removed. 21Moral turpitude is not easily defined under immigration law. Some argue that the flexibility 

in the term allows for changing social norms. 22The definition of aggravated felony (defined in INA § 101(a)(43)) includes over 50 types of 

crimes. In addition, an alien convicted of an aggravated felony is conclusively presumed to be 

deportable (INA § 238(c)). Misdemeanors at the State level may be aggravated felonies under 

the INA. 23So few aliens have been deported under these grounds since 1980, that DHS does not report 

the number. 24There is a 5-year bar to admissibility for aliens who have been subjected to expedited removal or those ordered removed when trying to enter the United States. There is a 10-year bar 

for admission for those who were ordered deported. There is a 20-year bar for those who have 

been previously removed, and those convicted of an aggravated felony are permanently inadmissible. INA § 212(a)(9)(A). 25 Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, Immigration Law and Procedure. 

Newark: LexisNexis, vol 6. 26 8 C.F.R. § 239.1(a). 27Pub. L. 99–603, § 701. 28 Anti-Drug Abuse Act of 1988 (Pub. L. 100–690); Immigration Act of 1990, Pub. L. 101–649 

(1990); Immigration and Nationality Technical Correction Act of 1994, Pub. L. 103–416 (1994); 

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132 (1996); Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. 104–208, Div. C (1996). 

• commit certain criminal offenses (e.g., crimes of moral turpitude,21 aggravated 

felonies,22 alien smuggling); • fail to register (if required under law) or commit document fraud; • are security risks (such as aliens who violate any law relating to espionage, engage in criminal activity which endangers public safety, partake in terrorist activities, or assisted in Nazi persecution or genocide); • become a public charge within 5 years of entry;23 or • vote unlawfully. 

Foreign nationals who are removed are subsequently subject to bars to reenter the 

country.24

In removal proceedings an immigration judge from the Department of Justice’s 

Executive Office for Immigration Review determines whether a foreign national is 

removable. The courts have ruled that removal proceedings are civil not criminal 

proceedings.25 The proceeding commences when the person is issued a notice to appear (NTA) which can be issued by a variety of DHS personnel including Border 

Patrol officers in Customs and Border Protection (CBP), asylum officers and adjudicators in U.S. Citizenship and Immigration Services (USCIS), and investigators 

and detention officers in Immigration and Customs Enforcement (ICE).26

In 1986, Congress made deporting aliens who had been convicted of certain crimes 

an enforcement priority. IRCA required the Attorney General ‘‘In the case of an 

alien who is convicted of an offense which makes the alien subject to 

deportation... [to] begin any deportation proceeding as expeditiously as possible 

after the date of the conviction.’’27 Between 1988 and 1996, Congress enacted a series of measures, including the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (Pub. L. 104–208), expanding the definition of aggravated felons 

and created additional criminal grounds for removal.28

TABLE 1.—REMOVALS OF CRIMINAL ALIENS AND NON-CRIMINAL ALIENS, 

2001 TO 2010 

Fiscal Year Criminal Non-Criminal Percent 

Criminal 

2001 .......................................................... 73,298 115,728 39 

2002 .......................................................... 73,429 91,739 44 

2003 .......................................................... 83,731 127,367 40 

2004 .......................................................... 92,380 148,285 38 

2005 .......................................................... 92,221 154,210 37 

2006 .......................................................... 98,490 182,484 35 

2007 .......................................................... 102,394 216,988 32 

2008 .......................................................... 105,266 254,529 29 

2009 .......................................................... 131,840 263,325 33 

2010 .......................................................... 168,532 218,710 44 

Source: DHS Office of Immigration Statistics Yearbook, 2010, Table 38. 
34 

29 Charles Gordon and Harry N. Rosenfield, Immigration Law and Procedure, Albany, New 

York: Banks and Company, 1959, p. 406. 30Shoba Sivaprasad Wadhia, ‘‘The Role of Prosecutorial Discretion in Immigration Law,’’ Connecticut Public Interest Law Journal, Spring 2010. 31William J. Howard, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, 

Prosecutorial Discretion, memorandum to all Office of the Principal Legal Advisor Chief Counsel, 

October 24, 2005. 32William J. Howard, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, 

Prosecutorial Discretion, memorandum to all Office of the Principal Legal Advisor Chief Counsel, 

October 24, 2005. 

The number of criminal aliens who have been removed has risen sharply in recent 

years. According to the DHS Office of Immigration Statistics presented in Table 1, 

the number of criminal aliens removed from the United States has gone from 73,298 

in 2001 to 168,532 in 2010. These numbers constitute a 138% increase in the removal of criminal aliens over the past decade. Criminal aliens made up 44% of all 

removals in 2010, the largest portion of removals since 2002. 

Since its enactment in 1952, the Immigration and Nationality Act has given the 

Attorney General and more recently the Secretary of Homeland Security prosecutorial discretion to exercise the power to remove foreign nationals. In 1959, a major 

textbook of immigration law wrote, ‘‘Congress traditionally has entrusted the enforcement of its deportation policies to executive officers and this arrangement has 

been approved by the courts.29 Generally, prosecutorial discretion is the authority 

that an enforcement agency has in deciding whether to enforce or not enforce the 

law against someone. In the immigration context, prosecutorial discretion exists 

across a range of decisions that include: Prioritizing certain types of investigations; 

deciding whom to stop, question, and arrest; detaining an alien; issuing a notice to 

appear (NTA); granting deferred action; agreeing to let the alien depart voluntarily; 

and executing a removal order. 

As early as 1975, the former Immigration and Naturalization Service (INS) issued 

guidance on a specific form of prosecutorial discretion known as deferred action, 

which cited ‘‘appealing humanitarian factors.’’ The INS Operating Instructions said 

that consideration should be given to advanced or tender age, lengthy presence in 

the United States, physical or mental conditions requiring care or treatment in the 

United Sates, and the effect of deportation on the family members in the United 

States. On the other hand, those INS Operating Instructions made clear that criminal, immoral, or subversive conduct or affiliations should also be weighed in denying 

deferred action.30 It is especially important to note that not all prosecutorial discretion decisions to halt removal proceedings result in a grant of deferred action to the 

foreign national. 

In an October 24, 2005 memorandum, then-ICE Principal Legal Advisor William 

Howard cited several policy factors on needs to exercise prosecutorial discretion. 

One factor focused on institutional changes, as he wrote, 

‘‘Gone are the days when INS district counsels... could simply walk down the 

hall to an INS district director, immigrant agent, adjudicator, or Border Patrol officer to obtain the client’s permission to proceed... Now the NTA-issuing clients 

might be in different agencies, in different buildings, and in different cities from our 

own.’’ 

Another issue Howard raised was resources, as he pointed out that the Office of 

Principal Legal Advisor (OPLA ) was ‘‘handling about 300,000 cases in the immigration courts, 42,000 appeals before the Board of Immigration Appeals (BIA or Board) 

and 12,000 motions to re-open each year.’’ He further stated: 

‘‘Since 2001, Federal immigration court cases have tripled. That year there were 

5,435 Federal court cases. Four years later, in fiscal year 2004, that number had 

risen to 14,699 Federal court cases. Fiscal year 2005 Federal court immigration 

cases will approximate 15,000.’’31

Howard offered examples of the types of cases to consider for prosecutorial discretion, such as someone who had a clearly approvable petition to adjust to legal permanent resident status, someone who was an immediate relative of military personnel, or someone for whom sympathetic humanitarian circumstances ‘‘cry for an 

exercise of prosecutorial discretion.’’32

In November 2007, then-DHS Assistant Secretary Julie L. Myers issued a memorandum in which she clarified that the replacement of the ‘‘catch and release’’ procedure with the ‘‘catch and return’’ policy for apprehended aliens (i.e., a zero-tolerance 

policy for all aliens apprehended at the border) did not ‘‘diminish the responsibility 

of ICE agents and officers to use discretion in identifying and responding to meritorious health-related cases and caregiver issues.’’ Myers referenced and attached a 
35 

33Doris Meissner, Commissioner of the Immigration and Naturalization Service, Exercising 

Prosecutorial Discretion, memorandum to regional directors, district directors, chief patrol 

agents, and the regional and district counsels, November 7, 2000. 34 ICE’s mission includes the criminal and civil enforcement of Federal laws governing border 

control, customs, trade, and immigration; see ICE, ‘‘ICE Overview: Mission,’’ http:// 

www.ice.gov/about/overview/. Laws governing the detention and removal of unauthorized 

aliens generally fall under ICE’s civil enforcement authority, while laws governing the prosecution of crimes, including immigration-related crimes, fall under ICE’s criminal enforcement authority. Also see Hiroshi Motomura, ‘‘The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line,’’ UCLA Law Review, vol. 58, 

no. 6 (August 2011), pp. 1819–1858. 35The memorandum does not define ‘‘recent illegal entrants.’’ DHS regulations permit immigration officers to summarily exclude an alien present in the United States for less than 2 years 

unless the alien expresses an intent to apply for asylum or has a fear of persecution or torture; 

and DHS policy is to pursue expedited removal proceedings against aliens who are determined 

to be inadmissible because they lack proper documents, are present in the United States without 

having been admitted or paroled following inspection by an immigration officer at a designated 

port of entry, are encountered by an immigration officer within 100 miles of the U.S. border, 

and have not established to the satisfaction of an immigration officer that they have been physically present in the United States for over 14 days. 36 John Morton, Director of Immigration and Customs Enforcement, Exercising Prosecutorial 

Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for Apprehension, Detention, and Removal of Aliens, memorandum to field office directors, special agents 

in charge, and chief counsels, June 17, 2011. 

November 7, 2000, memorandum entitled ‘‘Exercising Prosecutorial Discretion,’’ 

which was written by former INS Commissioner Doris Meissner in 2000. 

‘‘Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations. The INS historically 

has responded to this limitation by setting priorities in order to achieve a variety 

of goals. These goals include protecting public safety, promoting the integrity of the 

legal immigration system, and deterring violations of the immigration law. It is an 

appropriate exercise of prosecutorial discretion to give priority to investigating, 

charging, and prosecuting those immigration violations that will have the greatest 

impact on achieving these goals.’’ 

Meissner further stated that prosecutorial discretion should not become ‘‘an invitation to violate or ignore the law.’’ She concluded by citing the ‘‘substantial Federal 

interest’’ principle governing the conduct of U.S. Attorneys when determining 

whether to pursue criminal charges in a particular instance, and claimed that this 

principle was pertinent to immigration removal decisions as well. According to the 

memorandum, immigration enforcement officers ‘‘must place particular emphasis on 

the element of substantiality. How important is the Federal interest in the case, as 

compared to other cases and priorities?’’33

The backdrop of the Meissner, Howard, and Myers memoranda provide historical 

context for the recent memoranda on prosecutorial discretion written by ICE Director John Morton. In March 2011, Morton published agency guidelines that define 

a three-tiered priority scheme that applies to all ICE programs and enforcement activities related to civil immigration enforcement.34 Under these guidelines, ICE’s top 

three civil immigration enforcement priorities are to: (1) Apprehend and remove 

aliens who pose a danger to National security or a risk to public safety, (2) apprehend and remove recent illegal entrants,35 and (3) apprehend aliens who are fugitives or otherwise obstruct immigration controls. 

In his June 17, 2011 memorandum, Morton spells out 18 factors that are among 

those that should be considered in weighing prosecutorial discretion. The factors included those that might halt removal proceedings, such as whether the person’s immediate relative was serving in the military, whether the person was a caretaker 

of a person with physical or mental disabilities, or whether the person had strong 

ties to the community. The factors Morton listed also included those that might 

prioritize a removal proceeding, such as whether the person had a criminal history, 

whether the person poses a National security or public safety risk, whether the person recently arrived in the United States and how the person entered. 

‘‘This list is not exhaustive and no one factor is determinative. ICE officers, agents 

and attorneys should always consider prosecutorial discretion on a case-by-case 

basis. The decisions should be based on the totality of the circumstances, with the 

goal of conforming to ICE’s enforcement priorities.’’ 

The Morton memoranda would halt removal proceedings on those foreign nationals that are not prioritized for removal.36
36 

37The Honorable Secretary Janet Napolitano, letter to the Honorable Senator Dick Durbin, 

August 18, 2011. 38 Homeland Security Advisory Council, Task Force on Secure Communities Findings and Recommendations, September, 2011. 39 CRS Report R41221, State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s 

S.B. 1070, by Kate M. Manuel, Michael John Garcia, and Larry M. Eig. 

It is also useful to point out what the Morton memoranda do not do. They do not: 

• give an unauthorized alien a legal immigration status; • entitle an alien to employment authorization; • alter the target on the number of aliens to be removed; • count as time toward cancellation of removal; or • prevent re-opening a removal case at later date. 

It is possible that the guidance of the memoranda, along with the procedures described in a subsequent letter Secretary Janet Napolitano wrote August 18, 2011, 

might provide a system or structure that would lead to greater consistency in the 

use of prosecutorial discretion. The interagency working group that Secretary 

Napolitano is establishing with the Department of Justice is charged with reviewing 

(on a case-by-case basis) the files of persons currently in removal proceedings and 

issuing guidance on the appropriate consideration necessary to meet the enforcement priorities.37 The Task Force on Secure Communities recently recommended 

that DHS ensure that its personnel exercise prosecutorial discretion systematically.38 Whether this interagency working group will provide such a structure to do 

so remains to be seen. 

The relevance of these memoranda on prosecutorial discretion may be viewed 

through the lens of a changing environment. The sheer size of the unauthorized population has grown substantially, despite a recent drop in both the unauthorized resident alien population and the apprehensions of illegal aliens. State and local governments are playing an increasing role in enforcing immigration law.39 As a result of 

Congressionally-mandated programs as well as technological advances, there have 

been dramatic improvements in the identification of removable aliens. These dynamics serve to expand the pool of removable aliens at a time when the financial resources of the Federal Government are especially pressed. 

This concludes my formal testimony, and I look forward to your questions. 

Mrs. MILLER. Thank you very much, Dr. Wasem. 

I appreciate the testimony of all of our witnesses today, and I 

know there has been some consternation about the title of our 

hearing, and I would say this, as I have listened to all of your testimony: I don’t think anybody disagrees with the concept, certainly, 

of removing criminal aliens from the United States. We are all 

very, very much in support of that. 

I think the problem that many of us have as we categorize this 

as administrative amnesty is allowing all others who have not actually committed a crime not to—I mean, any other crime other 

than entering the country illegally, which is a crime, obviously, 

that there would be no efforts, really, because of resources, as I am 

understanding it, to deport them, or remove them, or what have 

you. 

I would just mention, first of all, in regards to the dictionary’s 

definition of amnesty, whether or not this is amnesty when you 

have—if you are going to deport 400,000 and leave the other whatever is left out of 11–12 million or more illegals here, ‘‘the act of 

any authority, such as government, by which pardon is granted to 

a large group of individuals; the excusing of an offense without enacting a penalty; a release from the legal penalties of an offense.’’ 

I believe that that is the definition of what the administration is 

doing here in regards to administrative amnesty, and there has 

been a huge outcry around the country, of course, about the administration’s policy in regards to this. 

I would also note, and I am sure we are going to get into this 

today as we question, whether or not the resources that you have 
37 

are adequate. I understand, believe me, in strict budgetary constraints that we all have, of what the financial condition of the 

country is. But it is for the agencies to tell the Congress what kind 

of resources are actually necessary, and it is for us to prioritize 

when we do our appropriations process. Just say you don’t have 

enough resources, we need to know what kind of resources are necessary, and that is one of the things this committee has been trying 

to get at, certainly this year, of what kind of resources actually are 

necessary, because it is a Constitutional responsibility of the Congress to secure our borders. 

I believe that the American people—the majority of the American 

people—have demonstrated over and over that they have the political will to secure our borders, and it is for the Congress to work 

together with the agencies, I believe, to make sure that we can do 

the very best job that we can to secure our borders. 

Talking about prioritizing, I know that there have been some 

comments made about not putting enough in the budget for this. 

I would just mention—I have got the numbers here for the fiscal 

year 2012 budget—in regard to ICE’s removal operations, the 

House-passed appropriation bill is in conflict with—which was 

mentioned a little bit earlier here, actually mirrored the President’s 

request in all by categories. 

Actually, for custody operations, the House plussed-up by almost 

$27 million, which was for 600 additional detention beds, and then 

we also plussed-up the Secure Communities by another $10 million. So I think we are putting our money where our mouth is in 

regards to prioritizing for border security. 

Again, I would say, if we are only going to remove those who 

have actually committed a crime, you know, we think about 9/11, 

for instance. That is why this committee even came into existence, 

as a reaction to 9/11. 

Four of the 9/11 hijackers were here on extended—or, excuse me, 

overstayed visas, but yet, they had no criminal background at all; 

they had never done anything other than overstay their visa, and 

so they were here illegally, although they hadn’t gone out and assaulted somebody on the street corner. I think that leads us to why 

we are concerned about this administrative amnesty, how we can 

be proactive as a Nation; reactive, after something happens. 

I would also point out just the cost of illegals on States and local 

governments, was mentioned, I think, by the doctor, about the 

States and the localities are picking—the municipalities are picking up so much of the expense. I have seen some numbers as high 

as, you know, $10 billion to $15 billion of additional cost that the 

States and local governments are absorbing because the Federal 

Government is really not doing the jobs that we should do as adequately as we can do. 

So, in regards to this particular policy, I guess my question for 

both the chief and Mr. Kibble, were your two agencies involved in 

determining that this would be the new policy, and do you completely support it? Do you have any consternation with it that you 

may be willing to talk about on the record, or—were you involved 

with this policy? Is this something that you think is the best path 

forward in securing our borders? 
38 

Mr. KIBBLE. Chairwoman Miller, as in policy formulation in 

other areas, this was not developed in isolation within ICE, speaking for ICE. It was a collaborative process including the Department of Homeland Security and the White House, as well. 

There were a couple—if I could just address a couple of the 

points you had mentioned before, I do think it is important to clarify that the prioritization does not—is not limited to just criminal 

aliens. We are looking to promote public safety, border security, 

and the integrity of the immigration system. 

So if you look at our annual data, roughly 50 percent of it are 

criminal alien removals, but then by definition, about half of them 

are not. We are looking at repeat immigration violators. We are 

targeting recent border entrants. 

With respect to National security threats, we are also—have programs that we have established in response to 9/11 to address 

those concerns. So it really is taking these resources—these 

400,000 removals that we have—and trying to maximize and use 

each and every one of them to the maximum extent we can to promote public safety. 

To your question in terms of whether I agree with it, I think 

every law enforcement agency around the world exercises discretion, because there is a recognition we have a finite amount of resources and we all want to do the maximum we can to promote a 

public good. So I do agree with this idea of smartly and effectively 

approaching immigration enforcement, and again, making every 

one, to the maximum extent we can, making every one of those 

400,000 removals count. 

Mrs. MILLER. So your testimony is that ICE, as an agency, was 

involved with determining this particular path forward as an administrative policy and that you are completely on board with it? 

Mr. KIBBLE. That is correct, ma’am. It was done in collaboration 

with the Department of Homeland Security and the White House, 

as well. With respect to the—again, I am a strong supporter of exercising discretion and operating in a prioritized way. 

Mrs. MILLER. Chief. 

Chief FISHER. Chairwoman, any time that you can take a look— 

and again, from the Border Patrol, it is certainly CBP’s perspective, 

what this does is this allows us and gives us additional detention 

spaces. When you look at prioritizing those cases—and by the way, 

when you look at the prosecutorial discretion memo that Director 

Morton signed, certainly we continue to work with ICE and to find 

out what, if any, changes that we are looking at between the ports 

of entry, and I will tell you one: As we are working through this 

right now, it is going to allow us more detention capability for 

those entrants that we apprehend between the ports of entry, and 

from a prioritized enforcement standpoint we do support that. 

Mrs. MILLER. Just a question for Dr. Wasem. Last Wednesday 

the President made some press because he was talking to an audience about this particular policy and he said that the statistics are 

a little deceptive, I think in order to play down the significance of 

the number of removals, perhaps, under his administration. I am 

not sure why he said the statistics are a little deceptive, but as a 

statistician, or as you have gone through the research, et cetera, 

do you think the statistics are a little deceptive? 
39 

I guess I would also ask you, in regards to amnesty that, for instance, as we mentioned, back in 1986, and you saw this huge 

spike, do you think that this policy will—that we will look at another spike as a result of this? 

Ms. WASEM. Let me speak to your first—your second question 

first, and that is, any time there is a magnet effect, and when we 

have seen it in history, it is hard to measure that in contrast to 

the ability to measure apprehensions, or the unemployment rate, 

or other economic and demographic data. So it has always been one 

of the unmeasurables, that it is difficult to sort out the extent to 

which it has made a difference. Often, when we see something that 

we could argue is a magnet effect, it is coincidental with other factors and forces at play, whether they are economic, or factors in the 

sending countries, like devaluation of the peso, or natural disasters. 

So while most social scientists would recognize that there can be 

magnet effects, a lot of it hinges on what is going on in the sending 

countries and how aware they are, and how much they understand 

the sending policy. Sometimes it could be a misunderstanding of a 

policy that could create this. So it is not something that can be empirically demonstrated. 

I must confess that I did not hear the President’s speech that you 

are referring to, so I don’t feel able to respond to that question, if 

you—— 

Mrs. MILLER. Okay. I understand that. That is fine. 

At this time, the Chairwoman will recognize the Ranking Member, Mr. Cuellar. 

Mr. CUELLAR. First of all, let me just, again, refer to this letter 

of November 4, 1999, that is signed by, again, Henry Hyde, Lamar 

Smith, a series of very prominent Republicans, David Dreier, and 

other folks, including Nathan Deal, which, by the way, has the 

toughest immigration law. He also signed this letter. 

It goes on, and they are asking for prosecutorial discretion. In 

fact, there they say the principle of prosecutorial discretion is well 

established, and then they go on why the need for prosecutorial 

discretion. 

In fact, if you look at ICE power—authority—comes in under the 

Homeland Security Act of 2002, where they gave you the exclusive 

authority to prosecute all removal proceedings. So you got that 

from the 2002 law. 

Also, the Supreme Court has recognized that the exercise of discretion is generally not subject to questioning or review, and 

agents—agencies’ decision not to prosecute or enforce, whether it is 

civil or criminal, is committed to the agencies’ absolute—and I emphasize, absolute discretion. This is the Heckler v. Chaney case— 

U.S. Supreme Court’s 1985 case that we have. 

Also, as Ranking Member Thompson mentioned a few minutes 

ago, when we passed the homeland security bill—the appropriation 

bill—specifically, there was $1.6 million that was provided to identify aliens convicted of crime who may be deportable and who may 

pose a serious risk of public safety or National security issues. 

They didn’t say everybody; they just said that is the work. 

In fact, it goes on, Members—and we all voted for this, or at 

least the ones that voted for it; I think I voted against it—that the 
40 

Secretary shall, ‘‘prioritize the identification and removal of aliens 

of—convicted of a crime by severity of that crime.’’ So you all, everybody voted—or at least the ones that voted for this, you voted 

for this particular bill. So I think to come back now and say, there 

is no—you know, we shouldn’t be doing this, we should have all 

voted no on that homeland security and moved on at that time. Mr. Kibble, let me ask you, $1.6—what is your cost—billion dollars, let us assume that bill would have passed, you would follow 

the appropriation bill, right, to follow and say, ‘‘Go after the more— 

aliens with criminal records,’’ is that correct? 

Use your mike, yes. 

Mr. KIBBLE. I am sorry, sir. 

We have been operating under the 2010 appropriations language 

that directs us to expend $1.5 billion, focused on the identification, 

apprehension, and removal of criminal aliens. Just to put that in 

perspective, the enforcement and removal operations component 

within ICE is the principal agency that affects civil immigration 

enforcement. That represents, you know, better than half of the resources that have been devoted to immigration enforcement—that 

component—— 

Mr. CUELLAR. How much does it cost to remove one alien—identify—ICE? 

Mr. KIBBLE. For ICE resources it costs roughly $10,000. We have 

brought that down—— 

Mr. CUELLAR. Right. $10,000, and let us assume that the appropriation bill that got passed this year, this one—I know it is still 

in the Senate—$1.6 billion—it went up from $1.5 billion to $1.6— 

taken it costs you $10,000, how many aliens could you—criminal 

aliens could you deport using those numbers, roughly? 

Mr. KIBBLE. Roughly, we are still at about an overall population 

of about 400,000 removals, and we anticipate that within those resources with—being able to maintain detention space at a roughly 

33,400 beds, that we will be able to continue to increase the criminal aliens removed within that overall population of roughly 

400,000. 

Sir, just to kind of make a point, the record-breaking immigration enforcement we have done over several years—and I am proud 

of the folks that have done this—this has continued into fiscal year 

2011. We are continuing to break records moving in excess of 

200,000 criminal aliens in this just most recent fiscal year concluded. 

Mr. CUELLAR. The next three—I mean, if you continue for your 

3 years that would match the 8 years that the prior administration 

had in removing criminals and you keep going at the pace that you 

are going? 

Mr. KIBBLE. It has been several years, now, of record-breaking 

immigration enforcement. 

Mr. CUELLAR. Okay. 

I have a question for Ms. Wasem. You did some research on amnesty. When was the only time we really have had amnesty in the 

United States that you are aware of? 

Ms. WASEM. Well, the major legalization legislation passed in 

1986. There are a variety of other smaller—— 

Mr. CUELLAR. The President was—— 
41 

Ms. WASEM. That was President Ronald Reagan. 

Mr. CUELLAR. Okay. All right. 

I have no further questions. 

Mrs. MILLER. Thank you very much. 

Just before I recognize the gentleman from Mississippi, I hadn’t 

seen this letter that my Ranking Member keeps referring to, and 

we are going to make sure all the Members of the committee do 

get a copy of this. But I would just note one thing on the letter that 

is being referenced: We are talking about removing criminal aliens, 

but as you read the letter it is talking, actually, about removal proceedings against legal permanent residents—legal permanent residents, not criminal aliens. I would just mention that. 

At this time I would recognize the gentleman from Mississippi, 

Mr. Thompson. 

Mr. THOMPSON. Thank you very much. 

Mr. Kibble, you indicated that it costs ICE about $10,000 per 

alien to be deported. It has been factored in that the overall cost 

to the Federal Government is about $23,000 per alien. 

I put on the map—on the screen—that if there are 11 million unauthorized aliens, and if it costs $23,000 per alien, that will cost 

us to eradicate the problem about $257.6 billion. For the sake of 

comparison, what is ICE’s total annual budget? 

Slightly less than $6 billion. 

[The information follows:] 

Mr. KIBBLE. Yes, sir. 

Mr. THOMPSON. Okay. Given the reality of slightly less than $6 

billion coupled with the potential to solve the problem, so what is 

your driving factor in deciding to exercise prosecutorial discretion? 

Mr. KIBBLE. The key thing, sir, is to, again, use the 400,000 or 

so removals that we are resourced to complete in a given year and 
42 

to use those in a way that is going to remove public safety threats 

from our communities, promote border security through partnership with Customs and Border Protection in targeting recent border violators, and also responding and restoring to the integrity of 

the immigration system, for those folks that are immigration fugitives, that are defying an order of removal or that are gaming the 

system through fraud. 

So using those resources—those finite resources that are available to us, in this past fiscal year 90 percent of our overall removals fell within those priorities—90 percent. Roughly 54 percent of 

that 400,000 were criminal alien removals. But again, our priorities extend broader than just criminal aliens. 

Mr. THOMPSON. Chief, in the application of ICE’s prosecutorial 

discretion, has that harmed or helped CBP’s ability to perform its 

stated responsibilities? 

Chief FISHER. Congressman, it has helped us because it has allowed additional beds that would—we would require under a consequence delivery system, so it has helped. 

Mr. THOMPSON. So your testimony is that ICE’s use of prosecutorial discretion has allowed you to have more beds available to do 

your job? 

Chief FISHER. Yes, Congressman. In those areas where that has 

been implemented—and again, because this is an enforcement 

process, any time that we can, subsequent to our arrests—and by 

the way, just for clarification, when we are talking about prosecutorial discretion, Border Patrol agents are still and will continue to 

arrest everybody that enters this country illegally. There is no discretion there. I just want to make sure that we understand that 

correctly. 

Subsequent to the arrest, when we look at final disposition following the consequence delivery system, to the extent that we have 

additional bed spaces either for the consequence delivery system or 

for final disposition, that helps out our ability to control the border, 

and that is our intent. 

Mr. THOMPSON. Dr. Wasem, you have reviewed the history of 

prosecutorial discretion. Have you seen the application of this both 

during Democratic and Republican administrations? If so, have you 

found the application to be different? 

Ms. WASEM. In the memorandum and guidance that I have reviewed from 1975 forward, certain themes are common throughout: 

The humanitarian concerns, the resource issues, and other enforcement priorities. The main thing that struck me about the latest set 

of memorandum is the specificity, in that it lists 18 factors. Now, 

those factors fit in the broader categories that the earlier memos 

mentioned, but it is—the level of specificity is a little different. 

Also, the August letter that Secretary Napolitano sent to Senator 

Durbin proposed as a structure that would be reviewing the process. That actually reminded me a bit, as a response to something 

that I referenced in my written testimony, that William Howard 

wrote about in his 2005 memo and how things had changed organizationally from the days when it was Immigration and Naturalization Service and everybody was in the same agency to one of the 

issues they were facing in 2005, where people were in different 

agencies and different parts of the country. 
43 

So whether or not the Napolitano letter is really going back to 

what it was like under one agency by putting something at the Departmental level or whether it is going to take us in new directions 

really remains to be seen. It is too soon to tell. 

Mr. THOMPSON. Thank you very much. 

I yield back, Madam Chairwoman. 

Mrs. MILLER. The Chairwoman now recognizes the gentleman 

from Texas, Mr. McCaul. 

Mr. MCCAUL. Thank you, Madam Chairwoman. 

Let me first just commend the ICE agents who every day put 

their lives on the line, and particularly those serving under very 

dangerous conditions in Mexico. 

To the Ranking Member, I agree, we need more resources. I 

think, you know, we talk to our friend, Judge Ricardo Hinojosa, 

and he will tell you that not only do we need more agents, we need 

more judges and prosecutors. 

As a former Federal prosecutor, I understand the concept of prosecutorial discretion. It is nothing new. Prosecutors exercise it every 

day, and they have to. You have to look at violent crime versus 

non-violent crime. So I understand all that. 

What I was confused about is when this policy came out and it 

caused some controversy—I think a lot of my constituents view it 

as an amnesty program; I think most of my constituents do not 

agree with amnesty—but what was confusing was the New York 

Times reports that administration officials said, in commenting on 

this new policy, that those who qualify for relief can apply for admission to work in the United States and will probably receive it. 

So call this whatever you want, but when administration officials 

say that through the New York Times, it appears to me that the 

administration is saying, ‘‘Look, if you are a noncriminal alien we 

are just going to allow you to stay in the United States, and beyond 

that, we will let you apply for work permits.’’ So it has the appearance of the administration in a back-door way is pushing a guest 

worker or amnesty program, call it what you want, but allowing illegal aliens to stay in the country and apply for work permits. 

So, Mr. Kibble, I asked, in a prior hearing, a Homeland Security 

official this very question, and he couldn’t answer it. Can you tell 

me if this is the policy of this administration? 

Mr. KIBBLE. Sir, as you acknowledged, the discretion is something that goes back decades. With respect to the particular application in this group, the working group that has been established, 

including both senior professionals from both the Department of 

Homeland Security and the Department of Justice are working on 

criteria to go through what amounts to roughly 300,000 active 

cases that are on the immigration court docket. 

As they look at—as they go through that they are going to be 

looking to exercise discretion, and we anticipate that it will be very 

narrow. We anticipate that it—— 

Mr. MCCAUL. My time is a little—and I understand that. I understand prioritizing the criminal cases. As the Ranking Member 

said, we need to be careful about our messaging. 

Is it the policy of this administration to allow noncriminal aliens 

to stay in this country and apply for work permits? 
44 

Mr. KIBBLE. No. That doesn’t appropriately characterize the policy, sir. In fact, even once—through this process, if these cases— 

some of these cases that qualify for discretion, where we choose to 

exercise discretion are set aside, first off, it is done on a case-bycase basis—a case-by-case individual—— 

Mr. MCCAUL. So those that you choose not to prosecute, are they 

allowed to stay in the country and apply for work permits? 

Mr. KIBBLE. They can certainly apply for work authorization, but 

there is no automatic grant of work authorization. 

Mr. MCCAUL. But it is the policy of this administration that they 

can stay in the country and possibly apply for work permits? 

Mr. KIBBLE. The policy focuses more on unclogging the immigration court docket so that we can accelerate our high-priority—— 

Mr. MCCAUL. You know, I get that. I understand all that. But 

it is the message that we are going to allow the non-criminal alien 

to stay in the country and apply for work permits. I think that is 

the core issue with this new policy. 

I still haven’t got a very clear answer to that. You know, if 

Mohamed Atta, the leader of the hijackers, who had a non-criminal 

record—didn’t have a criminal record, had overstayed his visa, if he 

was pulled over in a traffic stop would he be let go and allowed to 

stay in the country and apply for a work permit? 

Mr. KIBBLE. No, sir, because our priorities extend to non-criminal 

immigration violators as well, so those presenting National security 

threats—again, if you just look at our removal numbers, roughly 

half of them are not considered criminal aliens—— 

Mr. MCCAUL. So what would be the threshold for a—okay, you 

have got non-criminal and criminal. What is the threshold, then— 

he gets pulled over for a traffic stop. Is that enough to deport him? 

I don’t think it is, under your policy. 

Mr. KIBBLE. Sir, I can’t speak to that particular—I mean, every 

officer has been empowered with the ability to look at the merits 

of that particular case and exercise discretion at any point in the 

continuum. What we seek to do is to exercise it earlier, but I will 

tell you that our officers are very concerned about public safety, 

and in this case you pose a National security example. If we don’t 

know what we have we may choose to move forward if we establish 

that the alien is potentially removable, arrest them, look at biometrics, continue to develop information and process that person 

for removal. 

Mr. MCCAUL. Let me just close by saying, you know, I am concerned about this from a National security standpoint, as well. I 

hope you factor that in in these cases. 

Last, again, I don’t know who these administration officials were 

that said this, and I don’t—I haven’t got a clear answer whether 

this—that is the policy of this administration, but I think that kind 

of statement from this administration really calls into question this 

policy. Prosecutorial discretion is nothing new, as you and I have 

talked about, but to say that they can stay in the country and 

apply for work permits, that goes a whole step further, and actually goes around, I think, the will of the Congress. 

So with that, Madam Chairwoman, I yield back. 

Mrs. MILLER. The Chairwoman now recognizes the gentleman 

from Michigan, Mr. Clarke. 
45 

Oops. Excuse me. I am sorry. 

The Chairwoman now recognizes the gentleman from Mississippi, Mr. Thompson. 

Did you have your time? 

Mr. THOMPSON. Well, do you want me to go again? 

Mrs. MILLER. No, okay, it is Mr. Clarke. I am sorry. 

You looked up—— 

Mr. Clarke. 

Mr. CLARKE. Yes, thank you, Madam Chairwoman. I yield my 

time from the gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I think the gentleman yields his order rather 

than his time, Madam Chairwoman. 

Mrs. MILLER. Gentlelady from Texas is recognized. 

Ms. JACKSON LEE. I don’t want Mr. Clarke to give up his time. 

But let me thank you very, very much for your presence here 

today. I am going to call each and every one of you a patriot. 

Thank you so very much for your service to this Nation. 

I have worked with all of you. I know your work, Doctor, and certainly have worked with Customs and Border Patrol and the Border Patrol separately, and, of course, ICE, over many, many years. 

Chief Fisher, I just want to ask you, do you have the necessary 

resources? I think we were reading an article about the efforts on 

the Southern Border; I know our Chairwoman comes from the 

Northern Border and work is necessary there, but it is intense 

work, is it not, Chief? 

Chief FISHER. Yes, it is. 

Ms. JACKSON LEE. Are you further enhanced—it is not a perfect 

system, but are you further enhanced—I introduced a major 

amendment in about the mid—either 2000s—I am trying to remember when I have been on this committee, so I think it was in 

the mid- to early 2000s where we talked about helicopters, night 

goggles, computers, new equipment. You have received some of 

that, is that not correct? 

Chief FISHER. Yes, ma’am. That is—— 

Ms. JACKSON LEE. Does that enhance your ability to do the 

work—the night work—that is required when there was an intensity of individuals coming over? Does that enhance your work? 

Chief FISHER. Yes, ma’am, it has. 

Ms. JACKSON LEE. Do you see a decided decline, partly, maybe, 

because of our economy—not saying a cessation of those coming, 

the kind of immigrants that have been coming for work that we 

have seen that have just been coming over either reunite with family or for work? Have you seen some of the impact of your work 

along with maybe the economy impacting those coming over? 

Chief FISHER. Yes, we have. 

Ms. JACKSON LEE. But you see repeat offenders, I assume? 

Chief FISHER. Yes, we do. 

Ms. JACKSON LEE. All right. Those repeat offenders, I think, are 

described as a felony now. I think the law, or the 1996 laws describe those individuals as felons that keep coming back and forth. 

Is that—— 

Chief FISHER. If, in fact, they have been formally removed on 

their—an earlier apprehension and they were formally removed, if 
46 

we catch them a subsequent time and the U.S. attorney chooses to 

prosecute, that could be a felony, yes, ma’am. 

Ms. JACKSON LEE. Could you use more resources, Chief? 

Chief FISHER. Certainly. But before we would say yes, we need 

more, and then the question is, well, what do you need, because of 

the infusion of resources, both in terms of personnel and in particular, technology, you know, one of the things that we are looking 

at now is two things in particular: No. 1, do we have the resources 

in the areas of highest risk? In other words, do we need to move 

some of those resources in areas where traditionally we didn’t have 

the level of control which we do now? 

No. 2, how do we deploy those types of resources? You know, we 

look at the largest civilian air force, and the capabilities that CBP 

has, in particular, the field commanders within the Border Patrol, 

and, as you have mentioned, some of the technology, both in terms 

of the mobile surveillance systems, and the mobile surveillance capabilities, the unattended ground sensors, the fleers, all of those— 

the unmanned aerial surveillance systems that have come on within CBP—gives us a huge capability. 

Ms. JACKSON LEE. Thank you, Chief, very much. 

Let me quickly, I appreciate the collaborative work between 

Chairwoman Miller and Ranking Member Cuellar, but we know 

that this is a ‘‘get you’’ hearing. This is an order that has come 

down from our leadership—the Republican leadership. It is to 

spend your time getting the President as we move toward 2012. 

Every committee has that responsibility, and this is another ‘‘get 

you.’’ 

My good friend from Texas, who I work with quite well, Mr. 

McCaul, has put on the record that we need more resources for our 

prosecutors and judges. He is absolutely right. The Southern district is overburdened with the number of immigration cases. 

But let me ask Mr. Kibble, who we have worked with, let me just 

put on the record very quickly that prosecutions for illegal reentry 

have jumped more than two-thirds since 2008. That is under the 

Obama administration. President Obama has already deported 

around 1.1 million immigrants—let me make it very clear—more 

than any President since Dwight D. Eisenhower. 

[The information follows:] 
47 

Ms. JACKSON LEE. Let me make that very clear: 1.1 million. Officials say the numbers will not decline, but at a time when the dynamics of a—immigrations are—goes on to say a lot of other 

things. 

Immigrations and Customs Enforcement spent $2.25 billion sending back 180,229 people. I think a lot of people would like that 

money to go for creating jobs. 

So, Mr. Kibble, let me just ask you, do you think that ICE is 

doing its job? 

Mr. KIBBLE. We are always looking for ways to improve and find 

more—— 

Ms. JACKSON LEE. Absolutely. Are you doing your job to the best 

of your ability now? 

Mr. KIBBLE. With the resources that are available we are breaking records in virtually every—— 

Ms. JACKSON LEE. Every single day. Would you use more resources under the mandate that is not an unintelligent mandate, 

which is to get rid of the criminal aliens? Would you do that if you 

had more money? 
48 

Mr. KIBBLE. We could obviously do more with more, but we 

would still be operating with—in terms of priorities, because the 

violations so far outstrip the resources that are available. 

Ms. JACKSON LEE. I just want to put this into the record, but I 

think this was utilized, it says $23,000 per alien, 11.2 million unauthorized aliens, it would cost us $257.6 billion. Many of these are 

students and individuals who are here simply trying to access legalization. 

I further want to just comment, Madam Chairwoman, this is a 

letter that I signed that you mentioned that is on—I am not sure 

what your interpretation, but I will just say that this sentence 

clearly indicates that it was people writing to suggest, ‘‘We write 

you because many people believe that you have the discretion to alleviate some of the hardships and we wish to solicit your views as 

to why you have been unwilling to exercise such authority in some 

of the cases that have occurred.’’ 

So, those of us who signed—Henry Hyde, now deceased, our esteemed Chairman of the Judiciary Committee, Barney Frank, 

Lamar Smith, my co-Ranking Member on the Immigration Committee, and Sheila Jackson Lee, and many others, were trying to 

say that you are wasting your monies on individuals that are just 

here versus getting the criminal aliens. That is what we wrote in 

1999. 

I would yield back to the Chairwoman. 

Mrs. MILLER. Thank the gentlelady. 

We all now have a copy of this letter that was written 12 years 

ago, and I think we can all look at it and see what we see here. 

It says, removing criminal aliens, they brought that to the attention. In the second paragraph it says, ‘‘However, removal proceedings against legal, permanent residents,’’ and then they go on 

with the rest of the letter. So again, I wasn’t here 12 years ago. 

But at this time—recognize the Ranking Member. 

Mr. CUELLAR. Yes, if you don’t mind, because I—let me clarify 

that letter. 

You know, first of all, they are talking about removals, they said 

in some cases. So they are talking about criminal aliens, but they 

said, but in some cases they may be legal, permanent residents 

who have had aggravated felonies. So they are even saying, let’s go 

ahead and help these folks that have had felonies—felonies, felonies, felonies, felonies—and all this. 

Then they go on, you know, they have obtained jobs, they are 

self-sufficient, they have started families in the United States—by 

the way, this is a Republican saying this—so—and then they talk 

about—and this is a very important thing, is they goes on and I 

am—it goes on and they are saying, you know, there is widespread 

agreement that deportations were unfair and resulted in unjustifiable hardship. Not Democrats saying this, but Republicans. 

It goes on, we just ask why INS pursued removal in such cases 

when so many other more serious cases existed. Therefore, this is 

why they are asking a prioritization. 

Madam Chairwoman, just so everybody is clear about this letter, 

I would ask that—I would ask your permission and the committee’s 
49 

* The information has been submitted previously by Mr. Cuellar. 

permission that I introduce this letter, dated November 4, 1999, 

into the record.* 

Mrs. MILLER. Absolutely, without objection—— 

VOICE. Would the gentleman yield? 

Mrs. MILLER [continuing]. We are going to introduce it to the 

record because I think it is important that we—that everyone has 

an opportunity to read this—legal permanent residents. 

VOICE. Would the gentleman yield? 

Mrs. MILLER. At this time I am going to recognize—go on 

through our questions here, and we will have the second round if 

we need to. 

VOICE. Okay. 

Mrs. MILLER. I would recognize the gentleman from South Carolina, Mr. Duncan. We are recognizing in order of the Members who 

were present at the start of the hearing. 

Mr. DUNCAN. Okay. Thank you, Madam Chairwoman, and appreciate you having this particular hearing. 

I thank the witnesses for being here today for this very important topic. 

But as I sit here and I think, we should ask ourselves, why is 

this hearing on administrative amnesty so important, I want to applaud the Chairwoman for defining amnesty for us. I actually had 

looked it up on my iPad and was going to do that as well. 

But let me tell you, the folks that I represent in South Carolina 

fully recognize—fully recognize—what most Americans, I think, 

agree on, and that is that we have a serious illegal immigration 

problem in this country. We have heard today criminal versus noncriminal, but I scratch my head and think that are not all illegal 

immigrants who entered the sovereign Nation known as the United 

States of America not criminal in some aspect, because they have 

violated the sovereign laws of this Nation by entering this country 

through illegal means, or staying in this country beyond their visa, 

which is against the law? 

So at what point in time do we choose which laws we are going 

to enforce and which laws we are not going to enforce as a Nation? 

By us choosing not to enforce certain laws, does that not water 

down our legal system as a whole? 

Director Kibble, listening to the testimony and hearing Mr. 

McCaul ask you some questions about folks that are stopped with 

a traffic stop, and whether they are National security threats or 

other things, I wonder, President Obama’s uncle was recently arrested on suspicion of driving under the influence, which was a 

crime. News reports indicate that he had a deportation order since 

1992 but was never deported. 

I understand that Mr. Obama was freed from ICE recently under 

an order of supervision. If our deportation process is not robust 

enough to successfully deport someone with a 19-year-old deportation order, why should Americans have any confidence that we can 

deport terrorists and criminals who pose a threat to public safety? 

Mr. KIBBLE. Sir, with respect to that particular case, DHS privacy rules limit what I can discuss on that. I know some of that 
50 

was inappropriately and in an unauthorized way leaked to the 

media. That is a subject of a separate OIG investigation. 

However, there are some things I can confirm. He was referred 

to us by the local police. He had been entered into proceedings. As 

you indicated, he has been released and is under an order of supervision, and he is not being treated any differently than any other 

alien in similar circumstances as we continue to pursue the matter. 

But this is—I mean, the proceedings sometimes take an extended 

period of time to ultimately affect a successful removal. 

Mr. DUNCAN. I realize there are 12 to 20 illegal aliens in this 

country. That is a number that is thrown around. I believe we don’t 

really know what the true number is. 

I know that it is very costly, as has been pointed out by the other 

side of this argument, that it would be very costly to round those 

up and send them home. I get that. 

But if we stop someone through normal law enforcement and we 

realize that they are here overstaying their visa, they are here illegally, they can’t prove that they are here on a legal status, we have 

got that person. Why are we choosing not to deport them? 

Mr. KIBBLE. Sir, again, I mean, depending on the circumstances 

of the case, different officers may make different decisions in terms 

of when and how to exercise discretion based on—— 

Mr. DUNCAN. But these are the easy ones. These are on the ones 

we know. We are not having to round them up out of the shadows. 

We are not having to go to the employers and check the immigration status of every one of their employees. 

This is somebody we have, we stop, we realize that they are here 

illegally. It is the easy—it is the low-hanging fruit, so to speak. 

Why not deport these guys? 

Mr. KIBBLE. We do remove a number of those, sir. I mean, I indicated before—first off, we have not reduced immigration enforcement in any way. As I have indicated previously, we are removing 

more people than ever in the history of our agency. On top of that, 

while 50 or so percent are criminal aliens, we are removing other 

folks that fall within these other areas that we are concerned 

about, that include immigration fugitives, recent border violators, 

and even though I say 90 percent of our overall removals are in 

prioritized areas, there is also 10 percent for folks that do come 

across our radar because we are not going to ignore the law. 

Mr. DUNCAN. I thank you. 

I will yield back the balance of my time. 

Mrs. MILLER. Thank the gentleman. 

The Chairwoman now recognizes Mr. Rigell, from Virginia. 

Mr. RIGELL. Thank you, Madam Chairwoman. 

I join my colleagues today in thanking—— 

Mr. THOMPSON. Madam Chairwoman, I think according to the 

rules of the committee, Ms. Jackson Lee is next. Mr. Clarke yielded 

his time to her, but—— 

Mrs. MILLER. He actually yielded his order, not his time. 

Mr. THOMPSON. He said he yielded his time. I mean, everybody 

was clear on that. 

Mrs. MILLER. I will ask the parliamentarian, since I want to exercise my discretion and make sure everyone who is here got a 

chance to ask. 
51 

According to the parliamentarian, my interpretation is correct. I 

am just trying to make sure that everybody who was seated here 

on time is getting their opportunity to ask their question, and certainly other Members will have their opportunity on a second line 

of questioning here. 

Mr. THOMPSON. The only thing I am trying to get clarity on, 

Madam Chairwoman, is Mr. Clarke was clear in yielding his time. 

It was his time—— 

Mrs. MILLER. His order. 

Mr. THOMPSON. Right. He yielded his 5 minutes to Ms. Jackson 

Lee. It was not Ms. Jackson Lee’s time. It is now her time, according to the order and rules of committee. 

Now, you are the Chairwoman—— 

Mrs. MILLER. Well, I will ask the parliamentarian again. Which 

do you agree? 

I have got to ask my attorney here. 

Ms. Jackson Lee corrected Mr. Clarke and said he was yielding 

his spot in the order. The Chairwoman is going to exercise what 

I think are the rules of the committee and make sure that everybody has an opportunity to ask questions. 

At this time, I would recognize Mr. Rigell, from Virginia. 

Mr. RIGELL. Thank you, Madam Chairwoman. 

I join my colleagues today in thanking ICE and the Border Patrol 

for the brave work that is being done. I join Congresswoman Lee 

in just referring to you as patriots. I believe that is true. So thank 

you. 

You know, an essential part of leadership and management is 

the allocation of limited resources, so the idea that we are providing judgment in this area does not at all surprise me. In fact, 

I think it is a good thing. 

Having said that, I think that to develop—to define and announce a specific plan that really nails down exactly why we are 

going to really go after and who we are not, I think it either by 

design or default is an unwise policy, and I will tell you why. Let 

us consider a town, for example, that is having fiscal stress, and 

it causes a sharp decrease in the amount of money that is being 

given or allocated to the police department. 

I think it would be unwise for the chief of police to come out and 

to be very specific on exactly what laws are not going to be enforced. Maybe, ‘‘Okay, we are not going to give anybody a ticket 15 

miles or under on speeding,’’ for example. You know, we are really 

making clear here, I think, what is a safe haven. Again, either by 

design or default, I don’t think that is a wise plan. 

Mr. Kibble, in light of that, I would like to ask you, sir, if—for 

a person who is outside of our borders presently who has an understanding of this new policy—and it is a change in direction, indisputably—do you think that this new policy either increases or decreases or has no effect on his or her likelihood to enter the country—and we are assuming this is a person who does not have a 

criminal background and has no criminal intent? 

Mr. KIBBLE. Sir, I would say that, you know, since 2009 we have 

already been exercising discretion and we have not seen flows 

across the border, although I will defer to Chief Fisher in terms of 

what he has observed. In fact, we have seen declines. 
52 

But speaking directly to your point, one of our priorities is recent 

border violators, and when we talk about recent we define that— 

we think of that in terms of years, not months. So I think that 

right there clearly sends a message that if you are crossing—if you 

are attempting to cross the border you are not getting a free pass. 

You are going to remain a priority for us for years. 

Mr. RIGELL. With respect, Mr. Kibble—and I have learned in my 

short time in Congress, I really don’t like interrupting people, but 

this clock ticks and you only have 5 minutes, and you really want 

to make sure the point is made. I am not asking for, you know, 

metrics here, or the fact that we are sending more back than ever 

before. Those facts are not in dispute, and I applaud that progress. 

I am asking you to get into the mind of a person contemplating 

coming over illegally. My specific question was—and I think I covered the universe of alternatives—does it increase, decrease, or 

have no effect on that person’s mindset—their thinking that they 

may be able to, ‘‘get away with it,’’ or be able to stay in our country 

illegally? 

Mr. KIBBLE. Sir, and that was the point I was trying to make, 

is that because we are making clear that we are targeting people 

that if they cross the border—if they are not currently in the 

United States and they cross the border there is going to be a period of years where they are still on our radar and they are still 

a priority for us to go after them and remove them. 

Mr. RIGELL. I appreciate I think a genuine attempt, on your part, 

to answer the question. I am not sure it was really answered there. 

Chief Fisher, let me ask you the same question, if I may. Does 

it affect the mind of the person contemplating coming to this country? Or, let’s make it even easier. Let’s just say a person is in this 

country illegally. When they hear of this policy—they are nonviolent; they are not a threat to public safety—does it increase, decrease, or have no effect on their mindset that they are concerned 

that they are going to be detained and possibly deported? 

Chief FISHER. For those individuals that are contemplating coming into this country illegally today, tomorrow, or next week, I can 

tell you they will be arrested. No classes of individuals will not be 

amenable to the level of discretion that we are discussing today. 

They are recent entrants, and although we are doing it on a caseby-case basis, border security between the ports of entry we take 

very seriously. 

We look at discretion and we look at the application of 

prioritizing bed spaces and case loads, that is different than our 

mission within the Border Patrol, sir. 

Mr. RIGELL. I would submit to you that the only answer to those 

questions is absolutely yes, it does decrease their concern about entering our company—our country or staying in our country illegally. For that reason I don’t think it is a wise policy. 

Thank you. 

Mrs. MILLER. The Chairwoman now recognizes the gentlelady 

from Texas. 

Ms. JACKSON LEE. Thank you very much, Madam Chairwoman. 

Thank you to my colleagues for their kindness and their indulgence. 
53 

Since I was one of the Members who was there at the time of 

the 1999 signing and want to give the interpretation that I think 

is appropriate to the letter that was submitted by my Ranking 

Member, Mr. Cuellar, dated November 4, 1999. What you have to 

remember is that at that time there was a question about the deportation of individuals who had never been back, who had come 

here as babies, children. There was a sizable Polish community in 

Boston, Massachusetts, that was being unevenly, or how should I 

say—it was being heavily targeted. Many of these individuals had 

never been to Poland and had juvenile offenses that were now coming to fruition, and many of them now were being deported. We 

heard from the Polish community, and many of the signees on here 

were from that region. 

The sentence that is relevant, ‘‘However, cases,’’ and I would like 

to share this, ‘‘cases of apparent extreme hardship have caused 

concern. Some cases may involve removal proceedings against 

legal, permanent residents who came to the United States when 

they were very young and many years ago committed a single 

crime at the lower end of the aggregated felony spectrum but have 

been law-abiding citizens every since, obtained and held jobs, and 

remained self-sufficient and started families in the United States.’’ 

So the issue was, these were legal, permanent residents, but 

what was happening with the new laws, because of the felony 

issue, if they were picked up they were being deported. They had 

families; they had never been back to Poland, or wherever else they 

might be sent—a somewhat similar analysis to where we are today. 

One paragraph, then, says, ‘‘True hardship cases call for the exercise of such discretion, and over the past year many Members of 

Congress have urged the INS to develop guidelines’’—notice the old 

terminology, INS—‘‘to develop guidelines for the use of its prosecutorial discretion.’’ 

Mr. Kibble, what I understand the administration’s policy is not 

a get out of jail key, as I understand it. It is to use the appropriate 

discretion to ensure that those who would do us harm, those who 

have offended the legal system, are your—those who are threats to 

society are your chief priorities. Is that my understanding? 

Mr. KIBBLE. That is correct, ma’am. It is to accelerate these highpriority removals through what is currently a clogged system due 

to some of the issues that have been raised earlier today, in terms 

of limited immigration judges and other resources. 

Ms. JACKSON LEE. You do not make the law, and if, for example, 

we pass a comprehensive immigration law that provided access to 

citizenship and put people in a line that had no interest in doing 

anything but being part of this great society, which I call, still, this 

great Nation—for me this Nation has never missed a step or a 

beat; we are a great Nation with great democracy and great rights. 

You would follow that law, as well, if that was passed by the Congress, signed by the President of the United States? 

Mr. KIBBLE. Yes, ma’am. As a senior career official in the agency, 

our role is to take the laws and the policies that are handed to us 

and implement them in the most effective way we can. 

Ms. JACKSON LEE. And to follow the law. So if there is an analysis that has been made that a college student that came here at 

age 2, graduated from high school, got accepted into a college be-
54 

cause of various different State laws, that that may not be at the 

top of ICE’s priority right now, based upon the interpretation that 

comes to you from the Government? 

Mr. KIBBLE. Yes, ma’am. Director Morton’s memo of June 17 

clearly states, though, that we are going to look at a whole range 

of factors and consider the merits of each individual case, and then 

determine on a case-by-case basis, based on that analysis, whether 

someone should be afforded extended discretion. I should just say, 

ma’am, that does not confer legal status. 

Ms. JACKSON LEE. I understand. We welcome that, but we also 

know that while you are doing that you achieve a lot of human resources in doing so. But we welcome that. 

Finally, I am sorry that Mr. Duncan had to bring up a connected 

relative of our President. I don’t know how many other Members 

of Congress who come from immigrant backgrounds that may have 

had similar circumstances. 

Thank you for awarding the President of the United States both 

privacy, but also the recognition that nothing inappropriate occurred. Is that correct, sir, to your knowledge? 

Mr. KIBBLE. Again, I would say that this case is being treated 

no differently than any other case that we would handle with meeting these consistent circumstances. 

Ms. JACKSON LEE. Okay. 

Then I would finally suggest, again, 1.1 million that have been 

picked up and deported by the Obama—President Obama administration, although the President has clearly said his position, as it 

is my position, to support comprehensive immigration reform I believe would be the solution to your task so that you could focus on 

issues. 

Finally, the cleric that was killed, I think it would be absurd to 

suggest that if he was stopped in a car that local police would not 

be sensitive enough to his connectedness that someone would not 

detain him. Would you think that would be a reasonable response? 

Mr. KIBBLE. Yes, ma’am, although in the particular case I think 

it was a reference to Awlaki, who is actually a U.S. citizen, so it 

would be a different context within the—— 

Ms. JACKSON LEE. Well, then you are absolutely right. It would 

be a different context. You would expect someone else to be dealing 

with his particular situation because he is a U.S. citizen. But if 

there was a non-U.S. citizen with connectedness like the U.S. cleric, now deceased, you would be able to find some way to detain that 

individual. 

Mr. KIBBLE. In the days after 9/11 we actually created programs 

specifically focused on those particular vulnerabilities and ensuring 

that we had a close lash-up with the Joint Terrorism Task Force 

in coordination with the National Counterterrorism Center and a 

whole range of other interagency efforts to make sure that we are 

guarding against National security threats. 

Ms. JACKSON LEE. Well, let me thank you very much, again, for 

your service. 

I yield back. Thank you. 

Mrs. MILLER. The Chairwoman now recognizes the gentleman 

from Arizona, the new father. 
55 

Mr. QUAYLE. Thank you, Madam Chairwoman. Thank you for 

holding this hearing. 

I want to thank all our witnesses for being here today and want 

to echo the sentiments of how proud we are of the CBP men and 

women and the men and women of ICE. They do a great job. 

We have had a lot of talk about cost today, and one of the things 

that hasn’t been mentioned is the cost of—how much cost illegal 

immigration puts on the U.S. Government. It is about $113 billion 

a year. The vast majority of it is actually taken up by State and 

local governments—about $84 billion, according to some reports. 

Now, the States and locals—in my State of Arizona we constantly 

have to try to come to Washington to get payback for the amount 

of funds that we use as State level from the Federal Government 

because of illegal immigration. We are inundated by this for a long 

time. 

So, we have talked in here that—illegal immigration, this is a 

Federal rule, because—we in Arizona know that because we tried 

to pass a law, or we passed a law, that was going to enforce the 

Federal law, but then we got sued by the DOJ. The problem here, 

as Mr. McCaul was kind of pointing out, is that I understand 

prioritization, but it is the grand scheme of things from the administration that gives some—especially in my home State of Arizona—pause, saying that we are not going to be enforcing our immigration laws and we are not going to be securing the border the 

way that we can by not allowing—having these big beacons for people to come in illegally. 

I think it points to what was noted in the New York Times piece, 

but also what the President has been saying, himself, saying that 

we are not—he said recently in a town hall format that we are not 

going to be going after young people who did nothing—who didn’t 

break any other laws besides being here illegally. So that grander 

scheme of things shows that, you know, we will have an amnesty 

by administrative policy. 

For those of us in Arizona, that is a huge concern for us. It is 

a big concern also because as we have made great strides along the 

border, especially in the Yuma sector, but the Tucson sector still 

has a lot of work to be done, and the one thing that was actually 

great for the Yuma sector was Operation Streamline, and it showed 

that there was going to be teeth for people and repercussions for 

people who came across illegally. 

Now, we are talking about we are still going to have enforcement 

when people are coming across the border and we are going to continue to work on that, but one thing I wanted to ask you, Chief 

Fisher, because you said, you know, you take it seriously—and I 

know you guys do down there—but once they get inside and once 

they actually get past that first sector—and, Mr. Kibble, you were 

talking about once you are here for just a few years, or a couple, 

you are still on the radar—how do you know how long they have 

been in America if they came across illegally and we didn’t apprehend them? We have no way of doing that. 

So, Chief, that is what—and Mr. Kibble, both—how do we know 

that once somebody is in the United States how long they will be? 

Because that is where you were saying if they are in for a short 

amount of time they would still be on the prioritization of deporta-
56 

tion, but I don’t know how you can actually determine how long 

somebody has been in here if they came in illegally and weren’t apprehended actually at the border. 

Chief FISHER. Well, sir, the first point I would like to address in 

terms of the Streamline case, we are right now—40 spots per day 

from Yuma are being allocated in the Yuma district for those cases 

in Tucson. I will also say that Streamline, as an independent program, it is a lot stronger within the consequence delivery system 

than as a stand-alone program because we are seeing reduced recidivism and reapprehension rates within the CBS. So I just wanted to at least—just so you know, we are taking some of those recommendations from this particular committee and moving forward 

with those. We have this year and we will continue next year. 

When we apprehend an individual at the border and we do our 

biometric checks, among other things, it tells us a lot about those 

individuals. For those very small percentage of individuals that we 

apprehend that have been in this country for an extended period 

of time, there is a formal process. We still do the biometrics; we 

have to identify who these individuals are, if, in fact, they have a 

criminal history, and we, on each one of those cases, work those 

with ICE to find out the final determination. 

Mr. QUAYLE. But there is no real way, if they don’t have any past 

history of coming across the border, right, and they are actually inside the United States, past where the enforcement areas really 

are, and if they picked up, is there—there is no real determination 

on how many years, how many months they have been in the 

United States illegally, correct? 

Mr. Kibble, do—— 

Mr. KIBBLE. Sir, I mean, our officers and our investigators, I 

mean, will—if they have an encounter and someone meeting that 

category comes across their radar, I mean, that is part of pursuing 

the process because we don’t know what we have and we may arrest them and we may continue to move them through the process 

until they demonstrate some sort of evidence that they have been 

here in a manner that perhaps takes them outside of our priorities. 

But even if they are outside of our priorities, we are not saying 

we are going to ignore the law, in terms of non-priority removals. 

As I mentioned earlier, 10 percent we are removing that aren’t priorities. 

Mr. QUAYLE. You are right. You have said that, but the problem 

is that other officials, and including the President, has been saying 

other things—not that we are not just going to enforce the law, but 

we are just not going to go after people and we are not going to 

enforce it against a certain people who are here illegally. I know 

it is not what you are saying right now, but when the President 

and other administration officials do say that, I mean, that is— 

words matter, and that actually does provide a magnet for people 

because they realize, especially once the economy gets back roaring 

again, which I hope it does soon, we are going to see, as we have 

seen historically, an uptick in illegal crossings. 

Mr. KIBBLE. Sir, may I—— 

Mr. QUAYLE. Yes, absolutely. 

Mr. KIBBLE. Speaking to the magnet point, again, we are not reducing immigration enforcement in any way, and I am sorry I am 
57 

repeating myself, but I am proud of what my guys have done—my 

guys and gals have done. I mean, we are breaking records, and 

again, in virtually every category. 

With respect to the magnet in particular, I haven’t talked about 

worksite enforcement yet, but that is the motivator. That is what 

fuels a lot of illegal migration. 

We have been breaking records in that category as well. We have 

brought criminal charges against more than 200 employers, up 

from last year, which was a previous record. We have initiated 

3,000 investigations. We have audited more businesses than we 

have before. 

All of that helps to address the magnet, in terms of trying to dry 

up those opportunities that fuel that migration. 

Mr. QUAYLE. I applaud that, and I think that you guys have been 

doing a great job. I just think that why this hearing was actually 

called was because of the concern that the overall narrative that 

has been coming out of the administration—not specifically, you 

know—I mean, you have been addressing this today, but the overall narrative is that—and with the magnet—is that what is going 

across and what people are hearing is that if you can come across 

and get through where the Border Patrol agents are at the border 

and get into the United States and you just follow the law, except 

for that you broke the law, then you are going to be able to stay 

and we are not—and the United States Government is not going 

to—now, you are saying that obviously we are not going to be doing 

that, but that is just the message that has been getting out. 

Mr. KIBBLE. Sir, I do want to be clear, though. I mean, our focus, 

our emphasis is on the priorities. But the point I want to make is 

that when non-priority aliens that we encounter may come across 

our radar we are not just ignoring that. 

I mean, with each one of those 400,000 removals we want to, to 

the maximum extent possible, make each one of them count in 

terms of promoting public safety. If you think about a 40 to 60 percent National recidivism rate on criminal offenders, it is no stretch 

to say that when we remove 200,000 aliens from our communities, 

from our country, we are preventing thousands of crimes. I think 

it just makes good sense to pursue a prioritized approach, as I 

think many have agreed, although—— 

Mr. QUAYLE. Right. I think that the prioritization, we understand it, it is just the overall narrative that has been coming out 

of certain parts of the administration, it changes that dynamic 

from, ‘‘Hey, we are going to go after this,’’ to, it goes, ‘‘We are not 

going to go after that.’’ That is the thing that a lot of us have problems with. So thank you for your clarification. 

Thank you, Madam Chairwoman. I yield back. 

Mrs. MILLER. I thank the gentleman. 

Let me, again, sincerely thank all of the witnesses for their testimony today. It has been a very interesting hearing. Obviously, as 

I said at the outset, we have some significant differences on the 

committee about whether or not this is administrative amnesty. My 

personal belief is it clearly is, and that in no way diminishes our 

respect for the brave men and women in the Border Patrol or in 

ICE and the work that you do all the time. 
58 

I will just note that—because I know we brought this up when 

your—Mr. Morton has been here, in June of last year, as has been 

widely acknowledged, there was a vote of no confidence by the ICE 

union rank-and-file members with Mr. Morton. I also believe that— 

that is why I asked you specifically, Mr. Kibble, whether your testimony was that you had been actively involved in this policy and 

that ICE supports it—your rank-and-file, your union president actually testified in front of the Judiciary Committee recently—I 

won’t go through his whole testimony here, but basically they don’t 

like this policy, at least that was their testimony to another committee. So I would just mention that. 

Again, for the record, I have the letter that was referred to by 

my Ranking Member. We will put that in the record. There is a lot 

of—I will let people read it and determine what you think. We will 

use our own discretion as to what was meant 12 years ago. 

But I will say that, obviously, that letter was written before 

9/11. This subcommittee, our last hearing was actually about visa 

overstays, and we are talking today about whether or not this new 

policy is going to incentivize those to cross the border illegally. 

I think—it is my opinion—that it will also incentivize those who 

really mean us harm, those that are not just coming here to advantage themselves economically. That is probably the biggest concern 

that I have about this, as I mentioned in my opening question or 

testimony that—opening statement, is that many of the 9/11 hijackers had overstayed visas. 

These are individuals who may want to have sleeper cells, what 

have you. Believe me, they are not going to be out being caught 

drunk driving, leaving a bar after 2 o’clock and assaulting some 

woman, or whatever. 

So that is a concern, because they won’t be criminal—they won’t 

have a criminal record. I think that there is just a big cause for 

concern there when you see that—we have heard different numbers, whether it is 40 percent, 47 percent—in the 40 percentile— 

of all the illegals that are here in this country are on visa 

overstays, as well. 

Of course, the visas are going through the Department of State, 

and we had somebody, because of our oversight that we were doing 

in this subcommittee, as I think we were doing our job to talk 

about visa overstays, all of a sudden, I don’t know whether it was 

coincidence, serendipity, the day of our committee hearing a fellow 

came from State and said that they now have a new policy, which 

is good, to take a look at these kinds of things. But there has been 

great consternation about this. 

Before we close the committee I would recognize my Ranking 

Member for any further comments. 

Mr. CUELLAR. Yes. Thank you, Madam Chairwoman. Again, I appreciate the good working relationship that you and I have had, 

and of course, the Members all working in a bipartisan way. 

We do have a few differences, as you can tell today, on this particular issue, but I think we are all trying to achieve the same goal 

and trying to secure our country. I am also encouraged that my colleagues on the other side, the Majority, are reading the New York 

Times and quoting from the New York Times. I am also very en-
59 

couraged that they are also listening to what the unions are saying, 

also. 

So I am very encouraged that we are at least looking at different 

perspectives. But in all seriousness, I just want to join the Madam 

Chairwoman in saying this, that we appreciate all three witnesses 

for being here. 

I, in particular, want to point out the work that ICE has done— 

the work that ICE has done. John Morton has, under very difficult 

circumstances, has really done a tremendous job in three—almost 

in 3 years doing more than, you know, the other 8 years in the 

prior administration. I know it is hard, but again, if we give you 

$1.5 billion and then raise it up to $1.6 we are going to still end 

up with 400,000 or so folks that we can deport, and that is what 

the resources are. 

So hopefully we will come together in a bipartisan way, and I 

know we do have a few differences but we are all trying to do the 

same thing. 

Madam Chairwoman, I thank you for all the courtesies. 

Mrs. MILLER. Thank you, Ranking Member, very much. 

Again, we thank the witnesses, and certainly applaud and support the work that is done 24/7 by your departments and your 

brave men and women. 

Thank you, Doctor, for coming, as well, from CRS. You did very 

well today. Very interesting testimony. 

With that, the hearing record will be open for 10 days if any further questions come from any subcommittee Members here today. 

With that, thank you very much. The committee will be adjourned. 

[Whereupon, at 11:46 a.m., the subcommittee was adjourned.] 

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