Prepared Statement of Ranking Member Chuck Grassley

Senate Committee on the Judiciary

Oversight Hearing of the Department of Homeland Security

Wednesday, October 19, 2011

Oversight is a critical function and a constitutional responsibility of the legislative branch.  It's often an overlooked function for members of Congress.  It's not always glamorous.  It's hard work, and it can be frustrating because of bureaucratic stonewalling.

In 2008, I was glad to hear the President-elect talk about the most transparent government ever.  Unfortunately, up to this point, this administration has been far from transparent.

I'm glad the Secretary is here today.  This hearing will give us an opportunity to ask questions that have gone unanswered.  I'm frustrated by the less than forthcoming answers we receive from the administration.

We need a little bit more straight talk from this administration.  This Senator, for one, feels as though our concerns are often dismissed.

For example, just this week, 19 Senators received a response to a letter we sent to the President about immigration policies.  The response didn't come from 1600 Pennsylvania Avenue.  It didn't even come from Secretary Napolitano.  It came from a bureaucrat in the Office of Legislative Affairs.  The response was non-responsive.  It's as if our concerns are trivial and insignificant

The issue we wrote to the President about was the prosecutorial discretion directives being issued by the Department of Homeland Security.

In June of this year, Assistant Secretary Morton released a memo directing and encouraging Immigration and Customs Enforcement (ICE) officers to exercise prosecutorial discretion.  Officers were asked to consider the alien's length of presence in the U.S., the circumstances of the alien's arrival in the U.S., particularly if the alien came as a young child, their criminal history, age, service in the military, and pursuit of education in the U.S.

On August 18, Secretary Napolitano announced an initiative to establish a working group to sort through an untold number of cases currently pending before the immigration and federal courts to determine if they can be "administratively closed."

Combined, this memo and this initiative are alarming, especially to those of us who firmly believe in the rule of law.  These policies seem to contradict that very important philosophy.

We have many unanswered questions from this administration about their prosecutorial discretion initiatives.  For example, how many cases will the working group sort through?  What standards will be used for adjudicating cases?  Will those already ordered removed be considered for relief?  Will those with a criminal conviction be eligible for discretion?  How much in taxpayer money will be expended for this effort and when will the working group finish its work?  What will happen to individuals who have their cases "administratively closed"?

We want answers.  We want transparency and accountability.  We want to be a part of the process.  The American people are shareholders, and they deserve to be consulted when major immigration policy is being formulated.

Americans also want to be told the truth.

That brings me to my frustration about the administration's deceptive marketing tactics in claiming that they have deported more undocumented people than ever before.  Secretary Napolitano continues to use statistics that are inflated and inconsistent with the official data produced by the Office of Immigration Statistics.  The Office of Immigration Statistics has been around for a while - since 1883 to be exact.  I'd like to know why the Secretary cherry-picks what numbers she wants to use and refuses to use the statistics provided by the Office of Immigration Statistics.

The department has a credibility problem here.  The Washington Post uncovered the story last December.  Their headline says it all:  "Unusual Methods help ICE break deportation record."  The administration, including the Secretary, use figures prepared by ICE.   ICE uses a different methodology, counting deportations from previous years and operating a repatriation program longer to pad the numbers.  The Office of Immigration Statistics, on the other hand, only counts removals that actually took place during that year.  Let me provide another example.  Secretary Napolitano gave a speech at American University on October 5^th, saying that in 2010, ICE removed over 195,000 convicted criminals.  However, the official statistic from the Office of Immigration Statistics is 168,500.  That's a difference of 27,000.

The point is - we don't know what to believe.  The department is using different methodologies from one year to the next.  Homeland Security personnel, according to the Washington Post, are encouraging immigration officials to do what they can to increase the overall removal number.  There's funny business going on, and the department's credibility is at stake.

But, don't just take it from me.  Even the President acknowledged that the numbers are dubious.   During a recent online discussion aimed at Hispanic voters, President Obama said that, "the statistics are a little deceptive."

So, I'd like to hear from the Secretary why they continue to use these "deceptive" statistics, and why the department chooses to use ICE figures, which are embellished and inconsistent, rather than the data from the Office of Immigration Statistics.

I'd also like assurances, which I have asked for repeatedly, that this administration isn't using creative ways to keep as many undocumented people in this country.  I have been voicing concern about this since the amnesty memo was released last summer.  We've talked a lot about deferred action and parole, but there were many more ideas in the memo.  For example, one of the most egregious options laid out in the memo was a proposal to lessen the "Extreme Hardship" standard.  Under current law, aliens are inadmissible for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days or one year, respectively.  The department has discretion to waive the grounds of inadmissibility if it would result in extreme hardship.  The amnesty memo states, "To increase the number of individuals applying for waivers, and improve their chances for receiving them, Citizenship and Immigration Services could issue guidance or a regulation specifying a lower evidentiary standard for "extreme hardship."  Proponents argue this is needed for family unity, and that the 3- and 10-year bars are overly burdensome.

If the standard is lessened, untold numbers of undocumented individuals will be able to bypass the 3-year and 10-year bars that are clearly laid out in the Immigration and Nationality Act.  I expect to hear from the Secretary if such a plan is being discussed by anyone within the department.  If it is, I will warn her that such an action, in my opinion, would be another blatant attempt to circumvent Congress and the laws we put in place.

On a final matter related to immigration, I'm very concerned by the administration's inconsistent position when it comes to suing states for enacting various immigration laws.  The administration has sued Arizona and Alabama, two states that have enacted laws requiring their law enforcement officers to cooperate with the federal government on immigration matters.  News reports claim that attorneys are considering challenges to other state laws, including Utah, Georgia, Indiana, and South Carolina.

But, what about cities and states that ignore federal law?  What about Cook County, Illinois, where the county adopted a new policy that orders sheriffs to ignore all federal requests to detain immigrants after they complete their sentence or post bail?  According to the Washington Post, "Less than a month after the board acted, more than 40 suspected illegal immigrants charged with or convicted of felonies have walked to freedom instead of into the arms of federal agents."  This policy clearly puts the public at risk.

The administration should be working with states, not against them, to enforce our immigration laws.  This latest attempt to challenge a state's efforts to enforce the rule of law, while turning a blind eye to cities and states that knowingly harbor illegal immigrants through sanctuary policies, is undermining the very same rule of law that our country was built on.  I would like to know the Secretary's thoughts about the actions of Cook County.

Next, I am interested to hear about efforts to slim down the Department of Homeland Security's massive bureaucracy in order to make it more efficient in executing its mission.  I know that another committee is working on that issue, but it is also of concern to this committee because redundancy in programs inevitably leads to poor coordination of effort and waste of resources.  Every dollar available to the department should be spent on securing our borders, protecting critical infrastructure, and identifying and catching terrorists.  Thus, I am especially interested in learning about the Department of Homeland Security's Office of Policy, which has almost 200 personnel and more than $50 million for its budget.  I should note that I am not singling out Homeland Security in this regard; just last week I sent a letter to the Super-Committee urging the elimination of the Justice Department's Office of Legal Policy as a way to save money, since its functions seem redundant of other offices.   My consistent goal is to identify organizational reforms that will streamline the bureaucracy, save money, and better accomplish the mission.

I am also interested in hearing about how the department is implementing recommendations to improve FEMA's process for awarding preparedness grants.  In 2010, the Government Accountability Office, or GAO, found that FEMA "does not compare and coordinate grant applications across preparedness programs to mitigate potential duplications and redundancy."  As a result, 11 of the 13 programs that GAO reviewed allowed grant recipients to purchase interoperable communications equipment, such as radios.  GAO found that a single state agency could apply simultaneously to four of those programs and receive funding from all four.  FEMA would not realize the redundancy because it has different review processes for each of the four programs.  Similarly, GAO found that the responsibility for program management of the thirteen grants is split among five organizations.  Thus, for one program, the Office of Infrastructure Protection selects critical infrastructure sites for funding to enhance protection, but cannot validate with FEMA whether an applicant has requested similar protection under other grant programs.  Again, this type of redundancy inevitably leads to waste of resources and undermines the mission of the Department of Homeland Security.  I am eager to hear how the department has addressed this problem.

Finally, I have asked Secretary Napolitano in the past about the involvement of an Immigration and Customs Enforcement officer being detailed in Phoenix to ATF's Operation Fast and Furious.  I also asked Secretary Napolitano at a hearing back in June about whether she had had any communications about Fast and Furious with her former chief of staff, Dennis Burke, who was the U.S. Attorney in Arizona responsible for Fast and Furious.  I did not get any response back from her.  Mr. Burke is to be commended, to some extent, for being the only person to resign and take responsibility for the failed operation.  Of course, I do not believe he should feel obligated to be the only fall guy.  If there are other higher-ranking officials at the Justice Department who should also be held accountable, they should also step up to take responsibility.

Thanks to the Secretary for appearing before us today.  I look forward to hearing from her.