Senate Judiciary Committee Hearing on S. 744 (Updated 4/23/13)

On 4/23/13 at 2:30 pm (ET) the Senate Judiciary Committee will hold a hearing entitled: "The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744."

Witness List

The Honorable Janet Napolitano
Secretary, United States Department of Homeland Security

Sen. Leahy (D-VT) begins.
Q: I want the road to citizenship to not just be available, but attainable. This legislation has triggers before people can earn green cards. Are the triggers attainable?
A: Three triggers: submission of plans, implementation of a national employer verification system and implementation of electronic entry-exit system. These are already part of our plans and I believe we can satisfy them in the coming years.
Q: In the wake of the Boston bombings some have expressed concerns about background checks for those seeking asylum in the U.S. I don't believe this should stop progress on this legislation. Can you tell us about the security screening currently in place for refugee/asylum seekers and does this legislation help or hinder that?
A: In the past few years we've increased the number and coverage of what goes on-if someone is seeking asylum they first undergo a vetting credible fear interview and their information is run against law enforcement, DOD and other databases. They then submit to a longer interview, we also re-fingerprint to ensure identity verification. Then there is review by a supervisory officer, after a year you can convert to LPR status, at that point you are vetted yet again. After 5 years you can apply for naturalization, at that point you're re-vetted and re-interviewed. Then before the ceremony you're re-vetted. The existing bill builds on that. Bringing everyone out of the shadows is very important.

Senator Grassley (R-IA) begins.
Q: There is a principle behind this legislation that is legalize first, secure the borders later. Do you agree that upon enactment the bill simply requires a strategy to be submitted before legalization can begin.
A: Substantial completion of a plan.
Q: Why should the American people trust that the bill will secure the border after 12 million people are legalized?
A: The bill builds on the large investment the country has made in the Southwest border and sustains that-the sustainment is what is so very important. The bill actually supports border security, two major drivers of illegal migration are labor and the length of time to get a legal visa-the bill deals with both of those problems and gives us more things we can use from a law enforcement perspective.
Q: The bill prohibits ICE from removing aliens who seem eligible for RPI, is this the same as the 1986 bill?
A: The bill says get the RPI process moving as quickly as possible, get the identification out, and during that period don't remove someone who is a low priority individual.
Q: I am interested in how the Boston bombers interacted with DHS.
A: He was not on a watch list. The student was in the wrong place at the wrong time. He was not a person of interest, because he was being interviewed he was put on a watch list, but then removed after more information was obtained.
Q: In regards to the older brother, were you aware of his travels to Russia in 2012?
A: Yes, the system pinged when he was leaving the U.S., when he returned the investigation had been closed.
Q: Did his ID document match his ticket?
A: The bill will help with this because it requires passport be electronically readable. Under the current system there are redundancies and even with the misspellings the system did ping.

Senator Feinstein (D-CA) begins.
Q: When will the pilot E-Verify program for agriculture begin?
A: Under the implementation of USCIS, we are exploring mobile sites and perhaps an app. The bill doesn't have E-Verify for Ag workers until year four. I can tell you that by year four we will have multiple ways for companies to verify their workers.
Q: A GAO report found that many flight schools do not have FAA certification, but ICE is not always aware of this. What are you doing to address this issue?
A: We are moving from CEVIS I to CEVIS II a new system to govern how educational systems.
Q: The asylum screening process in this bill - under the current system applicants must undergo a credible fear interview. If the officer determines that the applicant does have a credible dear-this bill streamlines the screening process by allowing a screening officer to grant an asylum immediately following a screening interview. How will the department ensure that applicants are adequately screened for national security threats. Currently, USCIS can work with Department of State to assess applicants' security threats.
A: We have greatly improved the information available from the get go in terms of what databases are checked. We have good relations with the State Department where the issue credible fear.
Q: Student visa fraud is something I am interested in since 9/11. 14 schools in 2011 have suspicious activities going on, 10,500 schools are improved by DHS to accept foreign students

Senator Cornyn (R-TX) begins.
Q: Texas is different from other Southern states, border patrol has recommended some tactical use of fencing. I don't believe in building a 2,000 mile fence will solve the problem so I'd like to see more flexibility for the department to secure the border. I think we agree. A: We agree.
Q: There are different measure for border control, it calls for a 90% effectiveness rate. Do you know how many people get away, i.e. the denominator?
A: That's one of the problems of using the effectiveness rate as your only measure, but as we continue to put in place the technology along the border we will have greater situational awareness of more areas of the border. It is a number that used, but taken together with other statistics, that give us a picture.
Q: Under the bill the department would have to get control of three high risk areas of the border, but if the cartels and traffickers know where the department is going to concentrate their efforts they will reroute their efforts, right?
A: All sectors will be protected, but you want to put your resources where the traffic is greatest, and if the traffic shifts the resources shifts. We have a lot of information about the areas that need more resources. We regularly review the numbers and make decisions to adjust, we wouldn't wait for an annual review.
Q: LA Times said that half of all border crossers get away, is that true?
A: I disagree, the technology was new and just being tested and did not take all facts into account.
Q: Since 1996 the law of the land has mandated the implementation of an automatic entry-exit system, but it still doesn't exist. Why do you think it will happen now?
A: We have now enhanced our ability to use different databases and link them and use electronic verification for air and sea exit. In terms of biometric we have pilots in Detroit and Atlanta, but our airports aren't designed to have those exit points. We think the electronic record verification will meet those needs.

Sen. Klobuchar (D-MN) begins.
Q: We introduced the JOLT Act to modernize the visa waiver program, do you support this idea?
A: Yes.
Q: Many law enforcement officials have their resources stretched thin, what are the benefits of this bill for local and state border law enforcement?
A: The bill is very supportive of local law enforcement.
Q: Going after fraud and abuse is extremely important, does this bill help with these efforts?
A: The bill increases the body of knowledge available to us and link databases. From a police perspective bringing people out of the shadows can only help.
Q: How does the bill help public safety through U visa program?
A: The bill expands the number of U and T visas available which helps us prosecute criminals and protect victims.

Sen. Lee (R-UT) begins.
Q: Some of my concerns are related to the discretion DHS will be given in this bill. You'll have discretion for how much additional fencing will be needed on the Southern border, in May 2010 President Obama said he felt the southern fence was complete. When is the soonest you would certify that the fence is complete?
A: I think we would move very quickly-we have sector-by-sector technology plans. We haven't been sitting back waiting for reform to pass to secure the border.
Q: Do you think you need to build any additional fencing?
A: The border patrol has done an extensive study of where fencing makes sense along the border and they determined that 652 miles of fence makes sense. We might go back and look at those areas.
Q: You'll have discretion to waive grounds of inadmissibility for RPIs relating to criminal activity under humanitarian purposes for family unity or public good. what situations might you consider granting that waiver.
A: Consideration based on the age of the conviction, the type, whether the individual is the primary wage earner, the record since the prior conviction.
Q: An applicant has to satisfy all tax obligations before they can obtain RPI status. If the alien is authorized to work in the U.S. wouldn't they have already paid taxes?
A: The intent of the bill is to ensure that everyone in RPI status or LPR status pays all taxes they owe.

Sen. Coons (D-DE) begins.
Q: DHS has a complicated, broad ranging mission and I am grateful to you in this difficult time. What assurance can you give us that CBP's custom inspection mission won't be degraded at ports?
A: The additional activities will be paid for through fees and fines and the like. Employment verification, the making more visa available will help the economy grow in every state.
Q: Under current practice DHS only uses discretion in 1% of all cases, this bill places significant limits on the department's prosecutorial discretion?
A: We already do that, the intent of the bill is to put it into statute.
Q: Under current practices immigrants must spend significant time and resources because they must go through a FOIA process to get their own file. ould you agree to streamline the process and provide A files to immigrants as a matter of course.
A: Some of the logistical issues is that some of these A files are contained in old warehouses as paper files.
Q: What privacy protections need to be put into place to ensure employers don't misuse the E-Verify system?
A: We greatly support states putting their DMV databases into the E-Verify system.

Sen. Graham (R-SC) begins.
Q: There is no waiver for an aggravated felony, felony or national security issue, is that true?
A: Yes.
Q: The waivers are for different areas, which I think is a good thing. How much money have we spent on border security since 2006?
A: Billions.
Q: We have 21,000 border patrol officers now-double what we had 2006. This bill adds 3,500 more CBP officers to help secure the border. We are attempting to achieve a 24 hour a day, 7 day a week situational awareness at the border with unmanned aerial drones. We are going to spend $3 billion on a border secure strategy and $1.5 billion on additional fencing. We are going to allow the national guard to continue to secure the border. We are going to fund increase the border crossing prosecutions. Do you agree that controlling jobs inside the country is at least as important as securing the border
A: At least as important.
Q: The 11 million are coming for employment, we aren't being overrun by Canadians, we are being overrun by people from corrupt and poor countries. The combination of systems, controlling the border, guest worker program, and employment verification all work in concert.

Sen. Hirono (D-HI) begins.
Q: This bill will help millions of family reunite with their loved ones, but it will restrict others. Particular concern for those from Asia. I want to include LGBT families and children of Philippine WW II veterans. This bill eliminates the sibling category and the adult children married category, and I believe that the merit based system will exclude these family members from reuniting with their USC family. There are many times where a sibling is the only member left for their family. What opportunities will siblings of USC have to immigrate to the U.S.?
A: The intent of the bill is that in exchange for the spouses and children of LPR to be immediate relatives, recapture of unused visas and the increase in business visas the sibling category was eliminated. But there will be other avenues for siblings to apply for visas.
Q: The majority, 70%, of immigrant women gain immigrant status from the family based system-what impact will the merit system have on the ability of women to enter the U.S. seeing as they often have limited access to education and work that will be prioritized under that system.
A: LPR spouses and children being considered immediate relatives is an important part of the bill.
Q: There are some ways we can allow these nuclear family members to come in.

Sen. Cruz (R-TX) begins.
Q: In the five days since the bill was introduced have you had the time to read all 844 pages of the bill?
A: Yes.
Q: Have apprehensions increased or decreased from last year to this year.
A: Overall apprehensions have stayed the same, except an increase in the Rio Grande Valley where we have seen an increase in Central American immigrants.
Q: How does DHS measure border security and why don't you use operational control?
A: We look at apprehensions, crime rates, inbound and outbound seizures, reports from those on the ground at the border. We also look to see what's the trend and where do we need to put resources.

Sen. Schumer (D-NY) begins.
Q: Back in 2010, we sent you a border bill with $600 million appropriations. And at that point you had an effectiveness rate of 68%, after the bill you increased that to 82%.
A: The key here is technology and air cover.

Sen. Sessions (R-AZ) begins.
Q: The bill gives you a lot of discretion. Have you meet with the ICE Union?
A: No. Law enforcement agents should enforce the law in accordance with the guidance they are given from their superiors. Agents don't set priorities, that is set by superiors. We want our officers focusing on narco traffickers, money launderers, human traffickers.

Sen. Franken (D-MN) begins.
Q: I worry errors in E-Verify systems will hurt small businesses and workers. Will the error rate continue to decrease?
A: Yes.

Sen. Lee (R-UT) second round.
Q: I'm concerned that those who have returned to the country after being deported or those who have absconded from a deportation order will still be eligible for RPI status.
A: This is a family unification provision-if someone has been removed, but would otherwise qualify for RPI and they meet other criteria I can allow them back in this country.
Q: The bill prevents anyone from being apprehended, detained or deported during the RPI eligibility period if they are prima facie eligible. This could amount to a 3 year enforcement holiday.

Sen. Durbin (D-IL) begins.
Q: Will this bill make America safer?
A: Yes.
Q: Nothing in this bill weakens the security and background checks of the refugee/asylum process.
A: That's right.
Q: Should DACA recipients be on an accelerated schedule?
A: Yes.
Q: The worst thing we can do for America is nothing.
A: I couldn't agree with you more.

Sen. Blumenthal (D-CT) begins.
Q: Where do you think this bill can be improved?
A: Rather than create a separate fence fund, it would be better to create one fund so the department can have more flexibility. Make sure the language about funding flows is accurate and clear.
Q: Can you suggest changes in the procedure to make it fair for those going through the process?
A: I think the due process protections in the bill are pretty robust and I appreciate that the bill gives counsel to those deemed mentally incompetent.

Sen. Grassley (D-RI) second round.
Q: Do you think obtaining control of the three sectors identified in the bill is really enough?
A: That's why we don't use the term Operational Control anymore-there are parts of the border that don't need all the resources as the high risk sectors need. There are some sectors of the border that are many miles, that have no population centers and are very rarely crossed.
Q: Can the northern border be ignored?
A: It's a very different type of border.
Q: How many people are in removal proceedings?
A: I don't know.
Q: Should these people in removal proceedings be allowed to receive legalization?
A: If they meet the requirements they should be allowed to register for RPI status.
Q: How many people today have ignored the government's order to leave the U.S. and should these people be able allowed to apply for RPI status?
A: Yes, if the meet the requirements for family unification purposes.
Q: Will the fees cover all the costs of the program?
A: Yes. We know from DACA what the estimated costs of the program will be.

Sen. Cruz second round.
Q: Proponents of the bill says that it requires for real metrics for border security. In 2010 only 850 miles of the 2000 miles of the Southern border were under "operational control" and so the department stopped using that metric. How can we have any confidence in the department?
A: We have to step back and see where the border was five years ago and see how far we've come. "Operation Control" refers to the ability to situational awareness in high traffic areas.

Cite as AILA Doc. No. 13042249.