Courtesy of Ammerican Immigration Lawyers Association (Cite as "AILA InfoNet Doc. No. 13020747 (posted Feb. 13, 2013))
On 2/13/13 at 9:30am ET the Senate Judiciary Committee will hold their first hearing on immigration reform of the 113th Congress that will feature Department of Homeland Security Janet Napolitano.
9:33am: Sen. Leahy (D-VT) starts the Senate Hearing: Few topics are more fundamental to who and what we are as a nation. We’ve effectively done enforcement first and enforcement only. The president is right, the time is now…The fundamental civil rights of U.S. citizens are more than a social issue. Any legislation that comes before this committee should acknowledge the rights of all citizens...The window on this issue will not stay open very long. This committee will start marking up immigration legislation soon.
Sen. Grassley’s (R-IA) opening statement: I’m going to start with a quote from then chairman, Sen. Simpson of WY made on 1981 as we started down a 6yr road of 1986 bill. Just as congress is about to undertake an overhaul of the immigration reform system, his words are relevant today. Since I was elected to the Senate, I have served on this committee. I voted for the 1986 amnesty bill because I believed it was a one-time solution to the problem. I was wrong. I applaud the movement by members to work towards an agreement. I have read the Senate bi-partisan framework. One line that struck me: “we will ensure that this is a successful permanent reform that will not need to be revisited” that sentence is the most important part of that document. We must learn from our previous mistakes so we don’t have to revisit the problem…The questions I have asked of this president and the secretary have gone unanswered. Why agents in NH were ordered not to arrest an individual convicted with sexual assault of a child. So the secretary must answer in the delay in arresting this sexual predator… I also plan to ask the secretary about the delay in transparency about the DACA program. About 5 letters about DACA have gone ignored…Finally, we have yet to see answers from the last hearing in this committee…Immigration must be settled, we must find answers. But getting answers to the basic questions of legislating seems impossible. I fear what will become of the President’s promise of transparency once we pass the bill. If we don’t have faith in the administration now, how can we trust in the implementation of an important bill we will pass later this year.
10:00am Sec. Napolitano praises the President’s plan and expanding on the need for Comprehensive reform in order to ensure America’s safety by driving down unauthorized crossings, bringing millions of people out of the shadows, and by prioritizing federal enforcement activities on narcotics smugglers, human traffickers and others.
10:08am: Sen. Leahy how is this plan different than the 1986 relief?
A: Immigration enforcement is light years away from what it was in 1986 and it’s seen in the numbers. There are 7 times more border patrol agents, we have 655 miles of fence infrastructure now as opposed to some chainlink fence, 409,000 deportation now as opposed to 25,000 deportation in 1986. The enforcement of removals has created tension what we saw expressed earlier today. Efforts must be sustained and multiplied and we must deal with the demand for illegal and legal migration.
Q:If we expand our legal immigration system does that make your job of removing criminal undocumented immigrants more or less difficult? A: It makes it less difficult because we can stop focusing on those that have long standing ties to their community, etc… and focus on priority cases
Q: Any longstanding prosecutor knows that you can’t prosecute everyone who commits a crime, you must show prosecutorial discretion. You’ve demonstrated this with DACA—that you can’t visit sins of parents against their children. Critics of DACA say that you’re breaking the law, how would you respond to that?
A: I would say that DACA is consistent with our values and the guidance we have given to ICE agents is to focus on those who have committed crimes, our repeat offenders and taking those who are low priority out of the system helps us meet those goals.
Q: Sen Collins (R-ME) and I are introducing the Uniting Families Act (that I have introduced every year for the last ten years). Some say that expanding spousal green cards to same-sex bi-national couples increases the potential for fraud, do you agree?
A: No, our adjudicators are experienced.
Sen Leahy: EB-5 is great! H-2A has had problems.
10:16am Sen. Sessions (R-AL) begins questioning Sec. Napolitano
Q: You’re afraid that enforcement first means enforcement only, but the American people are afraid that you mean amnesty only (without enforcement). I believe that if this Administration had done a better job of enforcement you’d be in a better place to ask for a more broad solution to the problem. I respect the lawmakers that are working to try to reach legislation, but it feels like what happened before with special interests controlling the process without ICE representatives, border patrol or real American people interests. I have my doubts that it will deliver on its promises. It might be better to deal with problems in a discrete level.
I fought for the fencing that’s on the border and it only got done when the last bill was going forward that called for 700 miles of double fencing, which has not been met. The additional border patrol agents that have been added were added over the objection of people who were fighting for amnesty last time. Last time you were here (October 2011) I raised concerns about the morale of ICE officers.
A: CBP and ICE were involved in discussions with the White House as the President formed his proposal. Operational issues on how the system works were part of the dialogue. On the fence, all but one mile is complete! With respect to ICE morale, ICE agents have the most difficult law enforcement job in America: they get criticized for deporting too many people and for not deporting everyone that is here without papers. It’s our responsibility as leadership of a prosecution agency to set priorities (as is done with state Attorney General’s office and the Justice Department)—the field officers don’t set the priorities, they get guidance from ICE leadership.
10:24am Sen. Feinstein (D-CA) begins asking questions.
Q: I want to ask about the visa waiver program, the importance of biometrics, and the entry-exit system. I was told by June 2012 that the Department would have a fully operational exit-entry system so that U.S. could calculate visa overstays. Can you give a quick update on when we’ll have this capability?
A: Biometrics is extremely difficult, and our airports are not designed to monitor exits, only entrants. We will have country by country visa over stay reports by the end of 2013.
Q: I am putting together the AgJobs part of the bill, E-Verify as currently constructed is not workable in agricultural settings. I asked Dir. Mayorkas how E-Verify could be modified for agricultural settings, but he did not provide any strategies to meet these difficulties.
A: I believe national implementation of a worker verification system is essential to immigration reform, but the problem with agricultural workers is they’re out on the fields so we’re testing mobile sites and other technology to put e-verify where the workers are.
Q: One of the principles of our system is family unification, what do you believe is the appropriate place for immediate family?
A:this President strongly believes in family unification, we will work with you on how big the chain is.
Q: Do you have any studies on the average number of people LPRs bring in?
10:36am Sen. Durbin (D-IL) begins questioning Sec. Napolitano
Q: I want to commend you for DACA, over 400,000 DREAMers have applied. These students represent a great opportunity for America to be a better nation. We have drawn rules around DREAM Act and DACA that are the right rules. The individual brought up by Sen. Grassley was denied DACA and is now in deportation hearings. Some critics are suggesting that deportations are splitting up families and targeting families that are not threats to American safety. What is your response?
A: One factor that is considered in PD is whether the individual is a parent of a U.S. citizen children.
Q: I suppose what I am asking you to clarify is when there is no criminal record and you’re breaking up a family, what are the standards that are applied?
A:It should be a low priority case.
Q: There is a genuine good faith bi-partisan effort and we are doing our best to fix the broken immigration system and it is a threat to America’s future if we don’t deal with it comprehensively. There are elements in the negotiation that go beyond my personal feelings, buts an effort to reach a deal. We are encouraged by the President, but he has made it clear that he is anxious to mover this along. I thank you for accepting the most difficult job in this administration.
10:43am: Sen. Cornyn (R-TX) begins questions.
Q: this is like déjà vu for a lot of us. I believe the reason immigration reform failed in 2007 is because the American people don’t believe that Congress actually intends to follow through on enforcement measures. Did you say that “the border is secure.”
A: I did, but the context is that the border is more secure now that ever before and the numbers are better than they have been in decades. But we have to build and sustain that.
Q: Refers to a GAO Report that says that the Texas border is nowhere near operationally secure. I do not believe that the border is secure and we have a long way to go. A recent report signaled that you failed to apprehend 39% of border crossers, is that a good record?
A: We know that border security is important and that we’ve done more in the last four years to deter traffic over the border. The main driver of unauthorized crossings is the ability to work—all of these things go together, we need employment enforcement to drive down crossers. Other students have shown that net migration is negative.
Q: Would you agree that terrorist border crossings are a national security risk?
A: By improving the legal migration system will enable us to better focus on those who are nefarious and trying to do us harm.
10:51am Sen. Schumer (D-NY) begins questions.
Q: I want to thank the President for his remarks on immigration last night, he asked us to act now without making it a wedge issue. He gave us the space to come up with a bi-partisan proposal which is our only hope to pass something. We're looking to get this done in a short period of time and Chairman Leahy has said he'll make time for us. Both sides know they have to give and they are. It will be much easier to accomplish enforcement once we account for all of those people here without legal status-this way our law enforcement resources can focus on a smaller universe of criminals, future border stays, employers who hire unauthorized workers, etc… A: Fewer people are trying to cross the border than in four decades.
Q: In 2010 we gave you 1500 increased personnel, 4 drones and more DEA agents at the request of Sen. McCain.
10:57am: Sen. Lee (R-UT) begins questions.
Q: Our immigration system includes many different distinct parts and we should not assume that we must do this comprehensively. The good news is that Democrats and Republicans are not that far apart: we all agree to secure the border, reform visa system, streamline legal immigration and implement worksite verification. We should do the enforcement measures we agree on, as well as the legal immigrant system. I will be introducing the Fairness for Highskilled Workers Act, which will remove the per country cap on high skilled visas. Which specific component components of immigration reform do you think enjoy the most bi-partisan support that can be implemented quickly in your department.
A: I think the bi-partisan framework is a good place to start and we want to work with you to flesh that out with you.
Q: In 2011 ICE Director John Morton outlined two memos regarding PD. I don't agree with them.
11:04am Sen. Whitehouse (D-RI) begins questions.
Q: I want to talk to you about cyber security at a later time. I've been a supporter of the high skilled worker legislation with Sen. Kloubachar (D-MN). Can you make the case why encouraging high skilled workers is good for American jobs and the economy, rather than competing or displacing American jobs.
A: The case for STEM and high skilled workers is very strong, they complement American workers and become job creators.
11:06am Sen. Klobuchar (D-MN) begins questions.
Q: We are the world's talent and we need to attract the world's talent. Immigrant scientists and engineers are a third of what they were in 2001. 30% of U.S. Nobel Laureates were born somewhere else and 90 of the fortune 500 companies were started by immigrants. A problem with the system is that it treats drug smugglers the same as aspiring students.
A: With PD we take circumstances into account, but that is no replacement for statutory changes.
Q: Can you touch on how having so many people living in the shadows is difficult for law enforcement? A: What happens is, particularly in areas with large concentrations, is that people are afraid to interact with law enforcement when they've been victims of crime or have been witnesses. That is a cloud on those communities and when I speak with police chiefs (like SF and LA) it makes it very difficult for them to effectively ensure community safety.
Q: We did include U visas in VAWA for this reason, but were unable to include more in this go around. A: We need more U visas!
11:13am Sen. Flake (R-AZ) begins questions.
Q: Border security is a difficult term to define. The GAO has been quite complimentary of what’s happening in the Yuma sector of Arizona, but there are issues that the border patrol doesn’t have performance measures and goals to define border security.
A: The problem is how you define border security. One way to look at it if we have more money for enforcement, is it better to invest in employment verification system or to hire more border patrol agents. I think you can begin with the things listed in 2007 bill: apprehensions, crime rates along the border, drug and contraband seizures. The notion of a trigger implies that you don’t get to these other things until X is met, but we have to look at the simultaneously.
Q: I agree—we need people to have a legal way to come and go, only the path to citizenship would be tied to that. GAO reported in 2009 that in some sectors increased apprehensions as success, and in some decreased apprehensions as success. If directed by Congress can we go back to what we were doing prior to 2010 to “Operational Control?”
A: I would suggest that we should not go back. We cannot have a one or two line description of border security. We want a safe and secure border with efforts that can be sustained.
11:20am Sen. Hirono (D-HI) begins questioning Sec. Napolitano
Q: I am encouraged by the bi-partisan support around enforcement and visa reform, but unless we agree on how to address the 11 million people living in the shadows. The term Operational Control has been tossed out, and to some people that means zero illegal border crossings. How much money do we spend on border control?
A:Billions upon billions. Some studies suggest that you can add up the other expenditures of all federal enforcement agencies and it wouldn't reach immigration enforcement costs./p>
Q: So how much more would we need to spend to reduce border crossings to zero, because this about a cost-benefit anaylsis.
A:That's right, we are living in an austere world. I would advise that those efforts would be better spent on interior enforcement./p>
Q: I think immigration reform should be guided by principles that reflect our values. There has been a lot of emphasis on high skilled workers, specifically STEM, but another guiding principle should be the 50 year tradition of keeping families together. We should not get tunnel vision and forget the human element of immigration, I think we need to expand the opportunities for families to be united and kep together. Family immigration is essential to continue the vitality of the American economy. The success of immigrants in this country is closely tied to the success of the immigrants families. I want to ask about family unification backlogs, many immigrants have to wait in line for 20 years with Asian countries representing the largest backlogs. I'm pleased that the President included increasing the cap for family based visas to 15%, if that happens, what would you expect to see in terms of the reduction in the backlong, and how long would it take to eliminate the family based backlog.
A:I'd have to go back and get a firm number for you, but it would result in a reduction in the cap./p>
Q: In my community there are Filipino veterans who fought in WW II who have been waiting decades to be reunited with their children. I hope they will be prioritized. I've been told about 40% of the undocumented people in our country are visa over stayers, we have been attempting to address this for over a decade. What is it going to cost for us to put such a system in place to track these over stayers.
A:We have now linked databases and look at visa overstays and prioritize them as well. We will be doing enhanced biographic exit systems./p>
11:28am Sen. Graham (R-SC) begins questioning Sec. Napolitano
Q: We're not being overrun by Canadians are we? I would suggest that they return home because Canada has a stable government and economy and that most people who come are from worse situations. I think border security is the starting point. There are nine sectors that we've laid out, I want an inventory of what we can do that we haven't already done in each sector. Controlling employment is a virtual fence all of its own. I would bet that this could run into a roadblock on temporary worker program. I want American employers to be able to find the workforce they need without leaving the country. We are going to need a more robust legal immigration system in order to ensure the vitality of Social Security. We 're going to need more STEM workers.
11:35am Sen. Franken (D-MN) begins questioning Sec. Napolitano
Q: I want to talk about dairy. Cows aren't seasonal they have to be milked all the time. How will you help Minnesota workers?
A: We support reforms to the H2-A visa that would fix that issue.
Q: Approximately 205,000 parents were deported in two years from 2010-2012, we've seen firsthand in Minnesota how devastating these deportations can be on families. I know ICE has two sets of guidelines: parental directives and asking parents where they want children to go before placing them into custody. What is the status of these guidelines and what is DHS doing to protects children in enforcement actions?
A: These guidelines will be issues. This is the current hardship of the current immigration system-where parents need to be deported. We look at a number of factors: can one of the parents stay, are there other family members that can take the children?
Q: When an action is being taken, the children must have some contact with the parent, and the parents have some rights to be in contact with the children. We've seen this in Minnesota where it's been very traumatizing for children and parents and I'm introducing legislation to ensure that these families have right during those actions.
11:42am Sen. Coons (D-DE) begins questions of Sec. Napolitano.
Q: we're not living up to our Constitutional values of treating families and providing due process for all individuals. We're left with w system that's very expensive for all involved. One of the pillars of immigration reform is path to citizenship, what is the current path? Is there a line?
A: There is no line. We look at prior removals as a barrier.
Q: if someone is able to apply through a USC relative what is the process?
A:They are lengthy and complex. That's why we must create a path.
Q: In the context of reform there has been discussion about same-sex couples being a divisive issue, can we get a commitment of ceasing deportations of same-sex couples.
A: We can't because of DOMA.
Q: I want to talk about the process of deporting families along different parts of the border. How does the system ensure that refugees, asylum seekers or vulnerable women and children are protected and do agents have discretion?
A: We have found that one deterrent of repeat crossers of the border is consequences including lateral removal along the border.
Q: We want to focus on removing those who pose a threat to our community, under DACA DREAMers now don't live under the threat of an removal, has this policy resulted in the department's ability to focus on higher level priorities?
A: Yes it does and DACA is consistent with our values as a country.
11:55am: Second panel begins.
11:56am: Jose Antonio Vargas tells his life story to humanize the 11 million undocumented immigrants living in the United States.
12:02pm: Jessica Vaughan speaks on limiting the flows of immigration and the problems with comprehensive immigration reform.
12:10pm: Steve Case speaks on the importance of immigrant entrepreneurs.
12:17pm: Chris Crane speaks on his disappointment that DHS does not enforce the country's immigration laws.
12:24pm: Janet Murguia speaks on the critical need for immigration reform that includes a roadmap to citizenship, smart enforcement and a better legal immigration system.
The Honorable Janet Napolitano Secretary
United States Department of Homeland Security
Jose Antonio Vargas
Founder, Define American
Director of Policy Studies, Center for Immigration Studies
Chairman and CEO, Revolution
President, National Immigration and Customs Enforcement Council 118
American Federation of Government Employees
President and CEO, National Council of La Raza