July 31, 2018 Oversight of Immigration Enforcement and Family Reunification Efforts Committee on the Judiciary, United States Senate, One Hundred Fifteenth Congress, Second Session HEARING CONTENTS: Member Statements Chuck Grassley Senator Rhode Island View Statement Witnesses Carla L. Provost U.S. Border Patrol/U.S. Customs and Border Protection Department of Homeland Security View Testimony Matthew Albence Executive Associate Director Enforcement and Removal Operations U.S. Immigration and Customs Enforcement Department of Homeland Security View Testimony Jonathan D. White U.S. Public Health Service Commissioned Corps Federal Health Coordinating Official for 2018 UAC Reunification Effort View Testimony * Please Note: External links included in this compilation were functional at the time of its creation but are not maintained thereafter. This hearing compilation was prepared by the Homeland Security Digital Library, Naval Postgraduate School, Center for Homeland Defense and Security.
James R. McHenry III Executive Office for Immigration Review Department of Justice View Testimony Jennifer Higgins Associate Director Refugee, Asylum and International Operations Directorate U.S. Citizenship and Immigration Services Department of Homeland Security View Testimony Available Webcast(s)*: Full Committee Hearing Compiled From*: https://www.judiciary.senate.gov/meetings/oversight-of-immigrationenforcement-and-family-reunification-efforts * Please Note: External links included in this compilation were functional at the time of its creation but are not maintained thereafter. This hearing compilation was prepared by the Homeland Security Digital Library, Naval Postgraduate School, Center for Homeland Defense and Security.
Prepared Statement by Senator Chuck Grassley of Iowa Chairman, Senate Judiciary Committee For a hearing on Oversight of the Administration s Immigration Enforcement and Family Reunification Efforts July 31, 2018 I want to thank the government witnesses for being here today. Originally, this hearing was solely going to be focused on our annual oversight of U.S. Immigration and Customs Enforcement (ICE). However, it quickly became evident that more oversight of the Administration s entire family separation and reunification efforts were needed, so I expanded the hearing to provide oversight of that specific issue as well. In April of this year, Attorney General Sessions announced a zero tolerance policy at the southwest border. This policy directed federal prosecutors to enforce our longstanding immigration laws and prosecute all individuals who crossed the border illegally. After all, when the laws on the books are enforced, it protects not only American citizens, but those who seek shelter and protection here too. Remember, the Attorney General implemented this policy after the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 the largest month-tomonth increase since 2011. The Attorney General s policy was well-intentioned and simple: enforce our nation s border security laws so that people would stop migrating illegally. We must remember that border security is national security. However, like with many well intentioned policies there were unintended consequences. As a result of the administration s zero-tolerance policy more than 2,500 illegal immigrant children were separated from their parents. As of last Thursday, 1,442 of those children have been reunited directly with their parents. An additional 378 have been released to other individuals under appropriate circumstances. But, almost one third of the children approximately 711 are still in government custody and are unable to be reunited with their parents. Of that 711, some were ineligible for reunification with their families for very legitimate reasons. According to the Administration, 120 were ineligible because their parents waived the right to reunify. 67 were not released because of red flags including child abuse and serious felonies that were raised during background checks of parents. Of course, some adults were found to have not been related to the children with whom they were traveling. Over the last five months, federal authorities saw a 314 percent increase in adults and children arriving at the border fraudulently claiming to be a family unit. This is dangerous, and any policy we have that encourages this perilous practice should be revised immediately. No child should be used as a pawn, subjected to sexual assault, extreme heat, or other criminal behavior by smugglers or traffickers seeking to make a buck on behalf of the most vulnerable.
Now, 431 children, the largest number of the 711 who haven t been reunified, were ineligible because their parents had already been deported. The administration claims that all of these parents elected to be deported without their children but public reports indicate that many of them may have not made an informed choice to leave their children behind. Some of these reports suggest these parents weren t presented this information in a language they could even understand. I m disturbed by these allegations and I hope our witnesses are prepared to give us thorough answers. Although the Administration has mishandled the family separations, it s important to remember that this institution Congress also deserves its fair share of blame. For years, Congress has failed to take one simple step which could have prevented the family separations we now decry: repealing the Flores v. Reno consent decree as it relates to families. In 1997, as a result of years of litigation, the federal government entered into a settlement agreement known as Flores v. Reno. When the U.S. government first entered into the Flores consent decree it was a muchneeded step towards ensuring the humane and dignified treatment of unaccompanied illegal immigrant children children often thousands of miles from their parents. The settlement agreement provided that illegal immigrant children without their parents could only be kept in federal custody for a maximum period of twenty days. It also required the government to treat these children humanely and ensure the type of quality care we would expect any child illegal or otherwise to receive. No one Democrat or Republican disagrees with that principle. However, in 2015, a single federal district court in California dramatically expanded the scope of the Flores consent decree by applying it to illegal immigrant children who arrive with their families, a move even the Obama Administration opposed. Under this single interpretation of Flores, the federal government faces a stark, Hobson s choice: enforce the law and separate families by releasing only the children after 20 days or keep families together by engaging in the past Administration s catch and release policies. As Senators Cruz, Tillis, and I wrote in an op-ed on Sunday, neither of those options are good choices. That s why we believe the best way to ensure this crisis never happens again is to repeal the Flores agreement, but only as it relates to the time limitations governing accompanied illegal immigrant children. Some of my colleagues will claim that we would end all protections for minor children and just allow the government to detain families indefinitely. Nothing could be further from the truth. No one on our side of the aisle wants to end the humane standards of care required by Flores. If anything, given recent news reports, we are more than willing to statutorily enhance those protections. We also don t want to see families kept in federal custody indefinitely, or even long periods of time. As Director McHenry is going to testify, when families are placed on the detained docket their cases are usually resolved in 40 days. In contrast, when families are released into the interior, they are given a notice to appear at a future immigration court hearing, with little incentive to
attend. That hearing occurs, on average, 700 days after their release assuming they even show up. And that s just the first hearing. According to information provided to every single member of this committee during a closed door briefing, cases can take anywhere from seven to ten years to complete. Worse still, almost 80% of asylum cases are ultimately denied. It just doesn t make sense to release families in mass and hope they ll show up to a future court date where they will more than likely be denied the right to remain in this country. But, and I ll say this again, if families and children are going to be kept in federal custody they must be kept in facilities where they will be treated humanely, and with the basic dignity that all people no matter what their immigration status deserve. Unfortunately, recent media reporting I ve seen suggests the federal government is failing miserably at this task. Over the last few months, multiple news reports have surfaced describing how illegal immigrant children and, in the case of family units, their mothers, have suffered unimaginable physical, mental, emotional, and sexual abuse while in federal custody. This is unacceptable, and the American people expect better. To be clear, this isn t a new issue. Some of the abuse dates back to at least 2012, and several of the most horrific incidents occurred in 2015 and 2016, under the previous administration. Now, I don t say that to imply that this is all the Obama Administration s fault. It isn t. But clearly, there is a larger systemic issue that needs to be addressed. Again, no one no matter what their immigration status should have to suffer such abuse. As a consistent advocate for victims of domestic violence and sexual assault, I m troubled by these reports. That s why Senator Feinstein and I have sent a letter to the inspectors general of the Departments of Homeland Security and Health and Human Services asking them to open an investigation into these allegations. We ve also asked the inspectors general to look into the practices, procedures, and policies that are in place regarding the custody of illegal immigrant families and children and to make recommendations to both us and the agencies regarding potential improvements to those practices. I also hope that our government witnesses are prepared to answer questions regarding these incidents and describe, in detail, steps that are being taken to ensure no person suffers these indignities again. I won t accept anything less. -30-
TESTIMONY OF Carla L. Provost Acting Chief U.S. Border Patrol U.S. Customs and Border Protection BEFORE U.S. Senate Committee on the Judiciary ON Oversight of Immigration Enforcement and Family Reunification Efforts July 31, 2018 Washington, DC
Introduction Chairman Grassley, Ranking Member Feinstein, and distinguished Members of the Committee, thank you for the opportunity to appear before you today on behalf of U.S. Customs and Border Protection (CBP). On April 6, 2018, the U.S. Department of Justice (DOJ) instituted Zero Tolerance, a policy to prosecute all violations of 8 U.S.C. 1325(a), which prohibits both improper entry and attempted improper entry by an alien. Zero Tolerance was and is necessary to combat decades of policies that failed to enforce the law and emboldened transnational criminal organizations and human smugglers. By the end of May 2018, the Border Patrol had seen a 178 percent increase in illegal border crossings in a month-to-month comparison to May 2017. The rise in illegal crossings is, in part, a consequence of the gaps created by layers of laws, judicial rulings and policies. For example, the 1997 Flores Settlement Agreement, requires the government to release unaccompanied alien children (UAC) from detention without unnecessary delay, or to transfer them to non-secure, licensed programs as expeditiously as possible. The settlement agreement was initially drafted to apply only to unaccompanied minors. Years later, in 2014, the Department of Homeland Security (DHS) increased the number of family detention facilities in response to the surge of alien families crossing the border. Soon after, a court ruling interpreted Flores as applying not only to UAC, but to those children who arrived with their parents. This ruling limited DHS s ability to detain family units through their immigration proceedings. In general, pursuant to a judicial interpretation of the Flores Settlement Agreement, DHS rarely holds accompanied children for longer than 20 days. CBP Implementation of Zero Tolerance On May 5, 2018, in response to DOJ s Zero Tolerance Policy for illegal entry, and based on guidance from DHS, the U.S. Border Patrol (USBP) began referring greater numbers of violations of 8 U.S.C. 1325(a) for prosecution. If a parent traveling with their child was accepted for prosecution by DOJ under Zero Tolerance, and thus, transferred to U.S. Marshals Service custody, the child could not remain with the parent during criminal proceedings and the service of any potential sentence upon conviction. That child would then be placed in the care of the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) to arrange for safe, longer-term placement of the child pending immigration proceedings. During processing, USBP agents collect basic biographical data, including but not limited to name, date of birth, and country of birth. This information is recorded in the CBP electronic system of record, and conveyed to HHS/ORR and U.S. Immigration and Customs Enforcement (ICE) when a placement request is generated. We worked hand-in-hand with ICE which generally took custody of parents following prosecution and HHS to identify individuals who arrived as part of a family unit.
Family Reunification and Current Guidance On June 20, 2018, President Trump issued Executive Order Affording Congress the Opportunity to Address Family Separation. Within hours of receipt of the Executive Order, leadership of U.S. Customs and Border Protection (CBP) issued guidance to the field directing that parents who entered with children were no longer to be referred for prosecution under Zero Tolerance. Following issuance of the Executive Order, CBP reunified more than 500 children in our custody with their parents. CBP s prosecution priorities under the Zero Tolerance initiative will continue to focus on achieving 100 percent prosecution of single adult aliens who cross the southwest border without inspection at a port of entry. In compliance with the Executive Order and the preliminary injunction of Ms. L v. ICE, CBP may separate a parent if that parent poses a danger to their child, has a criminal history, or has a communicable disease. Importance of Zero Tolerance and Border Security Illegal immigration is dangerous, both to the security of the United States and the welfare of those making the journey. The risks of illegally crossing the border especially in the hot summer months or entrusting one s life to ruthless human smuggling organizations are significant for adults, and even more deeply concerning for children. In May and June of this year, Border Patrol Agents provided life-saving assistance to 896 people, compared to 621 instances of life-saving assistance during those months in 2017. In addition, increased levels of illegal border crossings divert resources from addressing the many other threats to our nation, such as narcotics smuggling, detecting harmful agricultural products, and countering transnational criminal organization operations. Ultimately, enforcement of immigration laws is the foundation of a secure border and a secure nation. Each action taken by lawmakers, the judiciary, policymakers and operators while made in good faith by people grappling with complex issues can have unintended consequences on the functioning of the immigration system as a whole. Consistent application of clear immigration laws enables access to the system s resources by those legitimately seeking its benefits while diminishing chaos on our border sought by transnational criminal organizations. I look forward to continuing to work with the Committee toward this goal. Thank you for the opportunity to appear before you today. I look forward to your questions.
STATEMENT OF MATTHEW T. ALBENCE EXECUTIVE ASSOCIATE DIRECTOR ENFORCEMENT AND REMOVAL OPERATIONS U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DEPARTMENT OF HOMELAND SECURITY REGARDING A HEARING ON Oversight of Immigration Enforcement and Family Reunification BEFORE THE UNITED STATES SENATE COMMITTEE ON THE JUDICIARY Tuesday, July 31, 2018 226 Dirksen Senate Office Building
Introduction Chairman Grassley, Ranking Member Feinstein, and distinguished members of the Committee: My name is Matthew T. Albence, and I am the Executive Associate Director of the Enforcement and Removal Operations (ERO) division of the U.S. Immigration and Customs Enforcement (ICE) agency. Thank you for the opportunity to appear before you today to discuss ICE s role in the Administration s family reunification efforts, as well as its critical mission of protecting the homeland and ensuring the integrity of our nation s immigration system through the enforcement of our country s immigration laws. Our nation s immigration laws are extremely complex, and in many cases, outdated and full of loopholes. This often makes it difficult for people to understand all that ICE does to protect the people of this great country. Nowhere is this more evident than in the recent events surrounding the Zero Tolerance policy. Today, I would like to discuss: the impact that this policy and the Ms. L case have had on ICE operations; the tremendous efforts made and successes achieved by the dedicated men and women of ICE; the progress made and challenges faced by our agency in implementing the family reunification process; and the issue of immigration enforcement as a whole. ICE s immigration enforcement efforts are led by more than 7,700 proud, professional law enforcement officers and support personnel of ERO. To ensure the national security and public safety of the United States, ICE ERO officers faithfully execute the immigration laws enacted by Congress. They may take enforcement action against any alien encountered in the course of their duties who is present in the United States in violation of immigration law. Pursuant to its statutory responsibilities, ICE is one of several agencies involved in the processing of unaccompanied alien children (UACs) and family units, and plays a critical role by quickly and safely transporting UACs from U.S. Customs and Border Protection (CBP) custody to the U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR), and also works with HHS to vet potential UAC sponsors. ICE also houses alien families together at family residential centers, manages the non-detained docket, and effectuates removal orders following the conclusion of immigration proceedings. ICE s interior enforcement efforts are essential to DHS overall border security strategy. It is impossible to have true border security without strong interior enforcement. Those who seek to illegally enter the United States must know that there is no free pass, and that should they successfully evade enforcement at the border, ICE will find, arrest, and upon the issuance of a final removal order, repatriate them to their home countries. Additionally, those that enter the country lawfully must know that should they violate the terms of their admission whether through criminal activity, overstaying their lawful period of admission, or failing to comply with the terms of their visa they too will be targeted for arrest, detention, and removal. Executive Orders and Zero Tolerance Policy During his first two weeks in office, President Trump signed a series of Executive Orders (EOs) that laid the policy groundwork for the Department of Homeland Security (DHS) and ICE
to carry out the critical work of securing our borders, enforce our immigration laws, and ensure that individuals who pose a threat to national security or public safety, or who are otherwise are in violation of the immigration laws, are not permitted to enter or remain in the United States. These EOs established the Administration s policy of effective border security and immigration enforcement through the faithful execution of the laws passed by Congress. In furtherance of this goal, on April 6, 2018, the Attorney General announced a Zero Tolerance policy, in which each United States Attorney s Office along the Southwest Border would prosecute, to the extent practicable, all offenses referred for prosecution under 8 U.S.C. 1325. Subsequently, on May 4, 2018, Secretary of Homeland Security Kirstjen Nielsen directed officers and agents to ensure that all adults deemed prosecutable for improper entry in violation of 8 U.S.C. 1325(a) are referred to the Department of Justice (DOJ) for criminal prosecution. On May 5, 2018, CBP began implementation of this policy, resulting in the transfer of adults who had entered illegally to U.S. Marshals Service custody pending prosecution. When adults are transferred to the U.S. Marshals Service for prosecution, their children become UAC as defined in section 279(g)(2) of Title 6 of the U.S. Code, and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which mandates that DHS generally must transfer any UAC in its custody to the Department of Health and Human Services (HHS) for care and custody within 72 hours, absent exceptional circumstances. On June 20, 2018, President Trump signed an Executive Order entitled, Affording Congress an Opportunity to Address Family Separation. This Order clarified that it is the policy of the Administration to rigorously enforce our immigration laws, including by pursuing criminal prosecutions for illegal entry under 8 U.S.C. 1325(a), until and unless Congress directs otherwise. At the same time, the Administration will maintain family unity, including by detaining alien families together during the pendency of criminal improper entry or immigration proceedings, where appropriate and consistent with law and available resources. In practice, this allows DHS to continue its judicious enforcement of U.S. immigration laws, while maintaining family unity for those crossing the border. Family Reunification Efforts and Associated Challenges On February 26, 2018, the American Civil Liberties Union (ACLU) filed a lawsuit in the U.S. District Court for the Southern District of California, Ms. L vs. ICE, alleging that the separation of parents and children who were apprehended at or between ports of entry violated the constitutional rights of the parents to family integrity. The lawsuit asked the court for an order prohibiting such separations. On June 6, 2018, the court denied the government s motion to dismiss, finding that the plaintiffs had alleged sufficient facts and a cognizable legal theory giving rise to a plausible claim for relief. In addition, on June 26, 2018, the court certified a class of plaintiffs consisting of parents who have been, are, or will be detained in DHS custody, and whose children were separated from them at the border and are detained in HHS custody. The court excluded parents with criminal history or communicable diseases, or those apprehended in the interior, from the class definition. The court further ordered the reunification of class members with their children where there had been no determination that the parent was unfit or presented a danger to their
child, unless the parent affirmatively, knowingly, and voluntarily declined reunification. Under the court s order, HHS was directed to work with DHS to reunify eligible parents with their minor children under the age of five within 14 days, and to reunify eligible parents with their minor children age five and older within 30 days or by July 26, 2018. Phase One of this process, reunifying eligible parents with their minor children under the age of five, was completed on July 12, 2018. HHS and DHS successfully reunified 57 alien minors under five years old in the custody of HHS with those eligible parents in the custody of DHS, per the court order. Of the 103 children covered by Phase One of the court order, 57 children were reunified, and the parents of the remaining 46 children were ineligible for reunification under the court-approved criteria or could not then be reunified because the parents are in criminal custody or had already have been removed. ICE and its federal partners are currently implementing Phase Two of the reunification process. During this phase, three ICE ERO Areas of Responsibility (AORs) in San Antonio, El Paso, and Phoenix will serve as primary centers of reunification for children ages five to seventeen with their parents in DHS custody, after HHS has evaluated parentage, fitness, and safety considerations, and had determined that the parents are eligible for reunification. Those parents who were not in ICE custody in one of the three designated AORs were transported into one of those AORs for the purposes of reunification. Where reunified families are to be released, ICE will work with local non-governmental organizations (NGOs) to effectuate a safe release plan, and will ensure that necessary services such as food, shelter, clothing assistance, and travel resources are available to those who have been reunited. As of the July 26, 2018 Joint Status Report filed with the Court, 1,820 of the 2,551 children age five and above whose parents were identified as class members, have been reunified with their parent(s) or eligible sponsor. 1,442 children were reunified with parents in ICE custody (HHS reported as of 0600 EST hours) and none of these family units have been removed. Of the remaining 445 parents in ICE custody (as of 0630 EST on 7/27/2018), 353 have final orders of removal and 120 have declined reunification. The court s order to reunite these families has required DHS to prioritize these reunions over other pressing operational needs, including the removals of individuals determined to have no lawful right to remain in the United States. These reunifications have required an unprecedented level of coordination between HHS and ICE, including the temporary assignment of nine ICE law enforcement officers and eight ICE data analysts to the HHS Special Operations Center. Additionally, the three ICE AORs have been operating 24/7 to support reunification operations, and will do so as long as necessary to effectuate efficient reunification of children with parents. The key steps in the Government s plan for reunifying a parent and child in its custody included: ICE creates a criminal background synopsis for the adult parent. 1. HHS reviews the ICE criminal background synopsis.
2. HHS reviews its case file to determine parentage or to identify red flags of possible non-parentage or trafficking. 3. HHS reviews its case file to determine fitness and safety or to identify red flags that the adult is unfit or poses a danger to the child. 4. Absent red flags, HHS conducts an in-person interview of the adult in ICE custody at an ICE reunification location. 5. Absent red flags, HHS, or an HHS contractor, also conducts a follow-up interview in an effort to confirm that the parent of a child would like to be reunified, as some parents elect to not reunify with their child(ren). 6. Absent red flags, and upon affirmation by the parent that they do wish to be reunified, HHS moves the child to the reunification location, where the child is turned over to ICE custody, and reunification is completed by ICE. Throughout the reunification process, the Government s primary goal is the protection and care of the children. ICE approaches its role in this mission with attention to detail, care, and concern, and as the reunification process continues, DHS will continue to provide updates on the progress made. Challenges and Legislative Fixes Since the initial surge in FY 2014, there has been a significant increase in the arrivals of both family units and UACs across the southern border, a trend which continues despite the Administration s enhanced enforcement efforts because of and the numerous loopholes that currently exist in our immigration laws. Thus far in FY 2018, approximately 44,000 UACs and 106,000 members of family units have been apprehended at the southern border. These numbers represent an increase from FY 2017, when approximately 49,000 UACs and 105,000 members of family units were apprehended throughout the entire fiscal year. In addition, most of these family units and UACs are nationals of the Central American countries of El Salvador, Guatemala, and Honduras. While historically Mexico was the largest source of illegal immigration to the United States, the number of Mexican nationals attempting to cross the border illegally has dropped dramatically in recent years and the net flow of migration from Mexico, legal and illegal, has decreased. This is significant, because removals of non-mexican nationals take longer, and require ICE to use additional detention capacity, expend more time and effort to secure travel documents from the country of origin, and arrange costly air transportation. Additionally, many Central American nationals seek protection under our asylum laws, and those who are found to have credible fear require careful adjudication by United States Citizenship and Immigration Services (USCIS). With regard to UACs, the problem is exacerbated as those from countries other than Canada and Mexico are exempt from expedited removal pursuant to the TVPRA, which further encumbers the already overburdened immigration courts. With a backlog of over 700,000 cases on the non-detained docket alone, it takes years for the cases of these UACs to work their way through the system. And even after they receive a final order of removal (which most do), few are ever actually returned to their country of origin. The Flores Settlement Agreement only
permits the short-term detention of UACs and ICE simply lacks the resources to locate, arrest, and remove the thousands of UACs who have been ordered removed but are not in ICE custody. It is important to note that current laws and court rulings which favor the release of family units and UACs often require the federal government to release illegal alien families and UACs into communities across the United States. This practice has not only led to aliens failing to appear for court hearings and failing to comply with removal orders, but has also incentivized smugglers to place children into the hands of adult strangers so they can pose as families and be released from immigration custody after crossing the border. This creates a safety issue for these children, who have already made an extremely dangerous journey to reach the United States, risking possible trauma, abuse, abandonment, injury, and death along the way. Amendments to the laws and judicial processes are needed to help ensure the successful repatriation of persons ordered removed by an immigration judge. Specifically, the following specific legislative changes are needed: Conclusion Amend the TVPRA to provide for the expedited removal of any UACs who are not victims of human trafficking and who do not express a fear of return to their home country, and provide for similar treatment of all UACs, whether from contiguous or noncontiguous countries, to ensure they are swiftly and safely returned to their countries of origin. Terminate the Flores Settlement Agreement (FSA) by passing legislation specifying UAC care standards, and clarifying the corresponding provisions of the TVPRA that supersede the FSA. Amend the definition of special immigrant juvenile to require that the applicant meet the definition of a UAC, and mandate that the applicant must demonstrate that reunification with either parent is not viable due to abuse, neglect, or abandonment, and that the applicant is a victim of trafficking. The current legal requirement is not operationally viable. Repeal the current requirement that an asylum officer have initial jurisdiction over cases involving UACs, in order to expedite processing of UAC asylum applications and shorten lengthy court timelines. Thank you again for the opportunity to appear before you today, and for your continued support of ICE and its essential law enforcement mission. We continue to respond to the trend of family units and UAC who are apprehended while illegally crossing into the United States, and to address this humanitarian and border security issue in a manner that is comprehensive, coordinated, and humane. While DHS and ICE are continuing to examine these issues in light of ongoing litigation and recent court decisions, a permanent fix from Congress is essential to providing operational clarity for officers in the field. Congress must act to eliminate the loopholes that incentivize illegal immigration, and must also provide ICE with the lawful
authority and requisite funding needed to ensure that families can be kept together throughout the course of their immigration proceedings. I would be pleased to answer any questions.
STATEMENT OF JAMES MCHENRY DIRECTOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES DEPARTMENT OF JUSTICE BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE FOR A HEARING ENTITLED OVERSIGHT OF THE ADMINISTRATION S FAMILY REUNIFICATION EFFORTS PRESENTED ON JULY 31, 2018
Statement of James McHenry Director Executive Office for Immigration Review Department of Justice Before the Senate Committee on the Judiciary Entitled Oversight of the Administration s Family Reunification Efforts July 31, 2018 Mr. Chairman, Senator Feinstein, and other distinguished Members of the Committee, thank you for the opportunity to speak with you today regarding the Department of Justice s role in the current situation related to family reunifications. This is an important and sensitive subject, and I welcome this opportunity to address it from the Department of Justice s perspective. The mission statement of the Department of Justice is: To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The Department of Justice s mission is exemplified by playing three roles relative to immigration enforcement. First, the Department enforces the law. Through the U.S. Attorneys offices, in conjunction with the U.S. Marshals Service and the Bureau of Prisons, the Department plays a crucial role in enforcing criminal laws and seeking punishment for those guilty of unlawful behavior. The Department of Justice s role applies no less to immigration crimes than it does to other categories of crimes. Section 13 of the President s Executive Order 13767 directs the Attorney General to establish guidelines and allocate resources to ensure that border prosecutions enforcing the immigration laws Congress has passed are a high priority of the Department. On April 11, 2017, the Attorney General issued a memorandum to all federal prosecutors outlining certain immigration-related offenses, including improper entry under 8 U.S.C. 1325, as high priorities. Additionally, the Attorney General directed each district to designate a Border Security Coordinator to be responsible for, among other activities, overseeing the investigation and prosecution of these offenses. On April 6, 2018, the Attorney General issued a memorandum entitled Zero-Tolerance for Offenses under 8 U.S.C. 1325(a). This memo directed federal prosecutors along the 1
southern border to adopt a zero-tolerance policy for all offenses referred for prosecution under section 1325(a) by the Department of Homeland Security. The Attorney General s memo remains in force today, and illegal or improper entry, among other immigration crimes, remains a prosecution priority for the Department of Justice. Furthermore, the President restated the prioritization of prosecuting illegal entry crimes in Executive Order 13841, which also reiterated that the current policy is to enforce rigorously the immigration laws passed by Congress. The Zero-Tolerance prosecution policy is simple it prioritizes the prosecution of those who disregard our immigration laws and illegally enter the United States. Indeed, the Attorney General s April 6, 2018 memorandum directed each United States Attorney s Office along the Southwest Border to the extent practicable, and in consultation with DHS to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a). The Department of Justice does not dictate which cases are referred by the Department of Homeland Security for prosecution, nor does it maintain a general exemption from prosecution for parents. The Department of Justice also has no operational or logistical role in either the care or processing of aliens for removal, regardless of whether they are adults or children. Accordingly, it also does not play an operational or logistical role in the current reunification process. Upon apprehension and initial processing by U.S. Customs and Border Protection, a component agency of the Department of Homeland Security, adults referred for prosecution under 8 U.S.C. 1325 are generally transferred to the custody of the U.S. Marshals Service for the pendency of their criminal matters. While the vast majority of aliens prosecuted under 8 U.S.C. 1325 are adults who entered alone, many adults have illegally entered the United States with children and were prosecuted for the crimes of illegal entry or reentry. Prior to President Trump s Executive Order of June 20, 2018 and because the U.S. Marshals Service does not and cannot house children with adults charged with criminal offenses alien children without a parent or legal guardian were transferred by the Department of Homeland Security to the Department of Health and Human Services in accordance with the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008. At the conclusion of the criminal proceeding and any sentence of imprisonment, the Department of Homeland Security assumes custody of the adult alien for whatever action it deems appropriate, consistent with applicable law. Criminal proceedings are separate from civil immigration proceedings, and prosecution for illegal entry under the auspices of the Zero- Tolerance policy does not necessarily foreclose an alien s ability to make a claim to remain in the United States. Consequently, depending on the particular circumstances of the adult, he or she may make such a claim or, alternatively, may elect to be removed from or voluntarily depart the United States. If the adult alien makes a claim to remain in the United States, that claim is generally directed to the Department of Homeland Security in the first instance. As the claim progresses, it 2
may eventually be reviewed by an immigration judge in the Executive Office for Immigration Review (EOIR), which is the second role played by the Department of Justice in the current situation. As the facts of a case warrant, an immigration judge will determine an adult alien s removability and adjudicate any claim to remain in the United States. Unaccompanied alien children placed in immigration proceedings pursuant to law will also have their cases heard by an immigration judge. As the issue of family separation and reunification has reached the federal courts, however, the Department of Justice has a third role as a litigator providing representation to those agencies that do provide care for aliens subject to removal. Consequently, I may be limited in my ability to speak to certain issues today, either because they are currently in litigation or because they are more properly directed to another agency. Nevertheless, the Department of Justice recognizes the seriousness of the present situation and is appropriately advising both the Departments of Homeland Security and Health and Human Services as they continue to abide by any orders issued by federal courts on these matters. The current immigration system faces numerous legal and logistical challenges. For example, a lack of clarity in immigration law regarding criminal aliens, particularly on the issue of aggravated felonies, continues to impede the administration of justice. Space and resource constraints inhibit flexibility in responding appropriately to sudden influxes of illegal aliens, particularly family units. Unfortunately, nationwide policy is being dictated by court orders, rather than by sound policy choices via rulemaking or statutory enactments. Added to these challenges is the current situation regarding family separations and reunifications. Nevertheless, as the formal title of Executive Order 13841, Affording Congress an Opportunity to Address Family Separation, indicates, the Department of Justice stands ready to work with Congress to answer these challenges and to improve existing laws to avoid a reoccurrence of the present situation. 3
WRITTEN TESTIMONY Jennifer B. Higgins FOR A HEARING ON Oversight of Immigration Enforcement and Family Reunification Efforts BEFORE THE SENATE COMMITTEE ON THE JUDICIARY July 31, 2018 226 DIRKSEN SENATE OFFICE BUILDING WASHINGTON, DC
Chairman Grassley, Ranking Member Feinstein and distinguished Members of the Committee, I am pleased to be here today, along with my colleagues from the U.S. Department of Homeland Security (DHS), U.S. Department of Justice (DOJ), and the U.S. Department of Health and Human Services (HHS) to address your interest in family separation and family reunification, including the expedited removal process. My name is Jennifer B. Higgins, and I am the Associate Director of the Refugee, Asylum and International Operations Directorate at U.S. Citizenship and Immigration Services (USCIS). USCIS administers the nation s lawful immigration system, including the adjudication of asylum claims submitted by individuals present in the United States who are not in removal proceedings, and screening those encountered at the border -- both at and between the Ports of Entry (POE) -- and who are placed into expedited removal proceedings and express an intent to apply for asylum or a fear ofreturn or persecution. Before being removed from the United States under an expedited removal order, all such individuals must be asked a set of questions by U.S. Customs and Border Protection (CBP) officers to determine if they have a fear of returning to their home country. If at any point prior to removal such individuals indicate to CBP or U.S. Immigration and Customs Enforcement (ICE) that they have a fear of returning or an intention to apply for asylum, applicable statutes require that these individuals be referred to USCIS for assessment of protection concerns what is commonly referred to as a credible fear screening interview. When evaluating credible fear, the USCIS role is limited to interviewing certain single adults and family units who are placed into the expedited removal process. Single adults include those parents who were separated from their children as a result of the parent being referred for criminal prosecution for illegal entry and transferred to U.S. Marshals custody for prosecution. Credible fear interviews are conducted by specially-trained USCIS officers, generally while the individual or family is detained by ICE. These officers comprise a professional cadre within USCIS, dedicated full-time to the adjudication and screening of protection claims. They are extensively trained in national security issues, the security and law enforcement background check process, eligibility criteria, country conditions, interview techniques, making proper credibility determinations, fraud detection, and the international protection obligations of the United States. During the credible fear interview, individuals are questioned regarding their biographic information, their fear of persecution or torture if returned to their country of origin, and whether there are any circumstances that may make them ineligible for asylum. While CBP and ICE have already conducted security checks on the individual earlier in the expedited removal process, USCIS also conducts security checks, including biographic and biometric checks. USCIS coordinates with ICE and other law enforcement authorities, as appropriate, if there is any reason to believe that an individual may have engaged in criminal activity or is a security risk. As defined by statute and regulation, an individual establishes a credible fear when he or she demonstrates that there is a significant possibility, taking into account the credibility of the statements made by the individual in support of his or her claim and other facts known to the officer, that the individual could meet the applicable standard to establish eligibility for asylum under section 208 of the Immigration and Nationality Act or withholding of removal or deferral
of removal under regulations implementing the Convention Against Torture.. If the individual establishes a credible fear of persecution or torture if returned to their country of origin, USCIS issues a Notice to Appear (NTA), and the individual is placed into full removal proceedings before an Immigration Judge, in which he or she can seek asylum or other forms of relief or protection from removal. Therefore, a positive credible fear screening determination by USCIS does not confer any immigration benefit other than shielding such individuals from expedited removal, and, in most cases, allowing their release from custody to stay and work in the United States while they await, on average, more than a year or two for a final hearing. It is simply a screening process employed to identify potential asylees, while the decision on asylum eligibility rests with an Immigration Judge. If USCIS determines that an individual does not have a credible fear of persecution or torture if returned to their country of origin, he or she is subject to expedited removal, unless the individual requests a limited review of USCIS credible fear finding by an Immigration Judge. The Immigration Judge can disagree with the USCIS decision and find the individual does have a credible fear. In that case, the Immigration Judge will vacate the expedited removal order, and the individual is placed into full removal proceedings before an Immigration Judge and required to return for a future court date. If the Immigration Judge agrees with USCIS that the individual does not have a credible fear, then the individual is subject to prompt expedited removal by ICE. With either the issuance of the NTA, or the determination that the individual has no credible fear, the USCIS role in the expedited removal process is complete. For those found to have a credible fear, depending on the location and manner of how the individual was apprehended, either ICE or an Immigration Judge will determine whether bond or parole from custody is appropriate during removal proceedings. As part of the removal proceedings, the Immigration Judge will ultimately determine whether the individual is eligible for asylum or any other requested forms of relief or protection. USCIS has more than 100 officers conducting credible fear screening interviews around the country, conducting an average of more than 350-400 interviews each day. Over the course of this fiscal year, USCIS has conducted credible fear interviews with individuals detained at more than 100 different locations around the country. In response to the President s Executive Orders, USCIS has positioned staff at 10 major detention facilities in the border region, including the two family residential centers in Texas, to carry out credible fear processing. Through July 15, 2018, USCIS has already completed over 76,000 credible fear cases referred to us for screening this fiscal year. CONCLUSION I hope that this overview of the USCIS role in the expedited removal process is helpful in understanding the factors at work at the southern border. Once again, I appreciate the opportunity to be here today. I am happy to answer any questions you may have. Thank you.