WASHINGTON—The House Judiciary Committee’s Oversight hearing of the U.S. Department of Homeland Security (DHS), with Secretary Jeh Johnson as its sole guest, was contentious. Republicans, led by Chairman Bob Goodlatte (Va.) expressed their indignation at what they said was a lack of effort by the Obama administration to deport “unlawful and criminal aliens.”
The Democrats, led by Ranking Member John Conyers (Mich.), were equally troubled by the U.S. immigration system they characterized as broken. They charged that House Republicans were stalling and needed to work with them to pass comprehensive immigration reform, that polls show the public wants.
Johnson, 56, who became the secretary of DHS in December, maintained a cool demeanor and respectful tone throughout the May 29 proceedings. Prior to this appointment, Johnson was general counsel of the Department of Defense from 2009 to 2012, where he led 10,000 military and civilian lawyers.
Prosecutory Discretion
The committee was aware that the president had directed Johnson to review our deportation policies to see if removals could be conducted in a “more humane manner.” Goodlatte said the instructions “are simply code words for further ratcheting down enforcement of our immigration laws.”
The administration has moved to a high-priority system of deportations. According to the FY 2013 ICE (Immigration and Customs Enforcement) report, the great majority of those deported in 2013 were people caught at the border attempting to enter the country, or they were convicted criminals. Under this policy, an undocumented alien without a criminal record caught in the interior is almost certain not to be deported, or removed, to use the official term.
The administration uses the term “prosecutorial discretion,” which Republicans see as a pretext not to enforce the law.
“The concept of prosecutory discretion has been around for a long time … with the resources we have, we have to continually reevaluate how best to prioritize who we enforce the laws against,” Johnson said.
Goodlatte accused DHS of shutting down the enforcement of immigration laws and permitting “millions of unlawful and criminal aliens” to go back onto our streets. In his phrase above, Goodlatte doesn’t separate the criminal from the noncriminal undocumented. Goodlatte views the DHS policy as not enforcing the law.
Johnson responded, “I am committed to enforcing our immigration laws that best promotes and ensures national security, public safety, and border security.” Putting the priority on convicted criminals and at the border makes sense to accomplish the above.
Reforming Immigration Law
Johnson didn’t say outright that this policy of non-enforcement of aliens who have been here perhaps for years or decades and have not committed felonies as more humane. But he did say Congress needed to move its primary attention from enforcement policies to passing comprehensive immigration reform.
“The estimated 11.4 million undocumented immigrants living in this country are not going away… as a matter of homeland security, we should encourage these people to come out of the shadows of American society, pay taxes and fines, be held accountable, and be given an opportunity to get a path to citizenship like others.”
Johnson got reinforcement from Democrats on the Judiciary Committee. “We know that the administration has the authority to set enforcement priorities,” said Conyers, who noted that committee members requested guidelines be issued on prosecutory discretion during the Clinton administration. He said that no one is disagreeing that “people who commit crimes and pose a danger to the public should be at our highest priority for removal.”
“We should get started on immigration reform right away before the window for reform closes. Every day that passes without a vote is a day that thousands of families are torn apart,” Conyers said.
Conyers also said, “The Congressional Budget Office has concluded that the House and Senate reform immigration bills would decrease the budget debt by $900 billion in a 20-year period.”
Over 36,000 Criminal Aliens
Goodlatte raised some facts about enforcing a policy, which he doesn’t agree with, that even Johnson had to admit were troubling.
“Despite the administration’s pledge to prioritize the removal of serious criminal aliens, DHS is releasing thousands of such aliens onto our streets,” he asserted.
Between Oct. 2008 and July 2011, DHS did not pursue the removal of almost 160,000 aliens who had been arrested by state and local enforcement, but were released, according to Goodlatte, who said data was discovered through a committee subpoena. About 17 percent were rearrested on criminal charges within three years’ time. The crimes charged included more than 4,000 major criminal offenses, including murder, assault, battery, rape, and kidnapping. These crimes would not have happened had DHS deported these aliens, he said.
Rep. Zoe Lofgren (D-Calif.) noted later in the hearing that the Congressional Research Service reported that more than 60 percent of these 160,000 aliens arrested were legal permanent residents, several of whom had lived here for decades. Removing such people is not possible in the way the chairman indicated, she said.
Delving more into specifics, Goodlatte said that the Center for Immigration Studies (CIS) found that in 2013, ICE had begun or even finished removal proceedings for over 36,000 convicted criminal aliens, but released them from custody. CIS is a conservative organization that opposes the current levels of immigration, which it regards as too high to absorb the immigrants.
Johnson anticipated the above charges. “I myself would like a deeper understanding on this issue,” he said. His understanding “so far” was that a number of these releases were directed by either immigration judges or immigration officers acting consistently with Supreme Court precedent and other law. Releasing these individuals carried the intent to ensure their return for trial.
Nevertheless, he said, he has seen the same lists as the committee has seen, that included the release of persons who committed homicide and other crimes. He promised to revisit the release process to ensure public safety.
Lofgren and others noted that the majority of criminal aliens removed were persons who had only committed “immigration offenses.” Lofgren said that the most common federal prosecution in 2013 was “felony re-entry after removal.” These felons are trying to reunite with their families in the United States. This is not criminal in the usual meaning and explains why so many communities are not cooperating with the DHS on enforcing criminal alien removal, Lofgren said.
Congressman Randy Forbes (R-Va.) said he heard from expert testimony that two-thirds of members of MS-13—a particularly violent criminal gang—were undocumented. He wanted to know how many of the 36,000 released were members of violent criminal gangs, to which Johnson said he didn’t know whether the numbers were broken down that way.
Forbes said that ICE agents and officials had met with Johnson on April 23 at the DHS Fairfax office and “expressed strong concerns” that gang members and criminals were being released, and that “DHS policies had tied their hands, preventing them from keeping dangerous criminals off the street.” Johnson replied that he did not recall that conversation in the terms as Forbes expressed it, which prompted Forbes to accuse Johnson of not being truthful.
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