Lawmakers turned up the heat under the long-debated controversy over President Obama’s 2014 executive order expanding the undocumented population eligible for deferred action—an issue which has raised the question of whether the administration has taken unprecedented steps to shut down the enforcement of immigration laws for millions of unlawful and criminal aliens.
On Tuesday, the House Committee on the Judiciary held a Department of Homeland Security (DHS) oversight hearing ”to discuss efforts at the agency in the areas of counterterrorism, aviation security, cybersecurity and immigration/border security."
However, it is the illegal immigration issue that the spotlight was on.
In his opening remarks, committee chairman Bob Goodlatte (R-Va) challenged DHS’s pledge to prioritize the removal of serious criminal aliens, stating the number of convicted aliens released on our streets has risen by 28 percent in less than three years, from 270,000 to almost 350,000.
“These people are out on the streets and many, many of them are committing new crimes,” Goodlatte stated. The hearing occurred just weeks after the tragic killing of Kathryn Steinle at Pier 14 in San Francisco by suspect Francisco Sanchez, an undocumented immigrant from Mexico with a criminal history that includes a number of prior felony convictions, and who’d been deported five times.
The fatal shooting re-ignited the debate over whether the enforcement of immigration laws for the millions of undocumented immigrants, including many convicted criminals, is high enough on DHS’ list of priorities. Lawmakers at the hearing grilled DHS Secretary Jeh Johnson on whether the murder would result in a change of DHS policies.
“I want to touch just briefly on the tragedy in San Francisco, the young lady who was walking with her father—she was shot and killed,” said Rep. Zoe Lofgren (D-Calif.). “Whenever an innocent citizen loses their life, it should cause us to review what policies we can change to make our community safer.”
The Steinle family themselves have expressed concern over holes in the nation’s current immigration system. Kathryn’s brother, Brad Steinle, recently told Fox News, “Thesystem failed my sister in so many ways.”
During the hearing, Rep. Steve Chabot (R-Ohio) asked Johnson if the administration had reached out to the Steinle family, to which Johnson responded, “To who?”
After receiving clarification from Rep. Chabot, Johnson stated, “I’m sorry I don’t know the answer to that question.”
Although Johnson disputed the criticism leveled at him and DHS at the hearing, he said he plans to evaluate whether a new approach is needed in the wake of the killing of Kathryn Steinle in San Francisco. According to Goodlatte, however, incidents like this are causing the American people to lose faith in the nation’s current immigration system — a problem that’s been simmering to near boiling since roughly 2006 when the number of illegal aliens crossing the border into the US began to escalate.
“The American people have rightly lost all confidence in this administration’s willingness to enforce our current immigration laws,” Goodlatte said. “This has become the single biggest impediment to Congress’ ability to fix our broken immigration system.”
Prosecutorial discretion: Has DHS crossed a line?
House Republicans also took Johnson to task over the issue of prosecutorial discretion. Last week, the US Court of Appeals for the Fifth Circuit in New Orleans heard arguments as to whether a preliminary injunction on the implementation of President Obama’s executive actions to defer deportation and grant work authorization to certain undocumented individuals already in the US should be overturned.
Although the government argues that the executive actions are legally permissible as an exercise of prosecutorial discretion, the 26 states which are the plaintiffs in the case believe Johnson’s planned grant of deferred action en mass will cause irreparable harm.
Two of the three appeals court judges who heard oral arguments during the hearing expressed concern about the legal merits of the President’s executive actions, which may be an indication that a lower court decision blocking the new programs is likely to stay in place.
During the House Judiciary Committee hearing, Rep. John Ratcliffe (R-Texas) grilled Johnson over whether the President’s executive orders crossed a legal line.
“Earlier in the hearing, you said ‘It is a fiction to say we are not enforcing the law,’” Ratcliffe said, adding, “But I hope you agree with me that what is not a fiction is that this administration has been attempting to change the law when it comes to deporting criminal aliens—a fact reflected by the President’s executive orders back in November.”
Johnson disagreed, stating, “In my judgment, and in the judgment of the Department of Justice, our executive actions were, and are, within our existing legal authority. If it’s within your legal authority to act, you are not by definition changing the law.”
“But you do agree with me that the President’s executive order back in November attempted to provide executive amnesty to four to five million illegal aliens. You agree with that, right?” Ratcliffe questioned.
“Not in the way you characterized it,” Johnson responded. “One of the executive actions I signed was to create a program by which we can offer deferred action on a case by case basis, to those who come forward and meet certain criteria, and who in the judgment of the agency should be given deferred action.”
“Which could result in amnesty for five to five million illegal aliens,” Ratcliffe fired back.
“No, that’s not my definition of amnesty,” Johnson rebutted.
Ratcliffe responded, “Regardless, you have gone on record saying the President’s actions are that he acted constitutionally.”
“Yes,” Johnson said.
“And I’ve gone on record saying I don’t think he has acted constitutionally,” Ratcliffe said back.
“And right now a federal judge in the Court of Appeals for the Fifth Circuit who has agreedwith me that the President’s actions should not be allowed," Ratcliffe said, added, “You have been asked today about the issue of prosecutorial discretion. And we’re both former prosecutors, so I’d like to ask you something. At a hearing last year you said, ‘There comes a point when something amounts to a wholesale abandonment to enforce a duly enacted call that is beyond civil prosecutorial discretion.’ Does that sound like something you said?”
“That sounds like me,” said Johnson.
“Do you still believe that?” Ratcliffe asked.
“I still do,” Johnson replied.
“I think I already know the answer to this question, but do you think DHS has already crossed that line by suspending the law for almost five million folks who are here illegally?” Ratcliffe posited.
“Again, I would not characterize our executive actions that way,” Johnson said.
"Well that begs the question, at least for me, what would it take for DHS to cross that line?” Ratcliffe asked. “I think there is every possibility this President will attempt to move this line again. If the President were to grant deferred action to, say, all 11 or 12 million unlawful aliens in this country, would that cross the line? I want to hear this on record.”
“I am no longer practicing law. I am just the secretary [of DHS]," Johnson said. "So, I think what you are asking me for is a legal judgment and, again, I believe that the opinion of the Department of Justice’s Office of Legal Counsel has a pretty good discussion of this exact topic. I recall, when I read it, agreeing with the analysis.”
“So would that analysis extend to 11 or 12 million folks? Ratcliffe asked.
“Doubtful,” Johnson surprisingly responded.
“So, you doubt that amnesty should be granted to 12 million people,” Ratcliffe said.
“Well, if you are referring to the estimated population of undocumented in this country, a lot of those people are and should be priorities for removal. So, in my opinion, someone who is a priority for removal, should not be considered for deferred action," Johnson told the committee.
Sanctuary cities: Is DHS prioritizing immigration enforcement against criminal aliens?
Lawmakers also scrutinized DHS’ failure to crack down on sanctuary cities—US cities that follow certain local ordinances and policies that allows the sheltering of illegal aliens. The issue has gained political urgency since the fatal shooting of Steinle, especially because local and state ordinances, laws and policies do not supersed federal laws.
“You work for the United States of America,” Rep. Trey Gowdy (R-SC) told Johnson. “How in the hell can a city tell you no?”
Earlier this year, Homeland Security Today reported Gowdy introduced a bill that would strengthen interior enforcement of US immigration laws by granting states and localities the authority to enforce federal immigration laws and defund Obama’s unilateral executive actions on immigration.
“Adherence to and respect for the rule of law is the bedrock of our democracy. But for too long, our immigration laws have gone unenforced, and most Americans are rightfully skeptical of any reforms coming out of Washington,” an exasperated Gowdy stated.
Furthermore, in response to Goodlatte asking why compliance with Immigration and Customs Enforcement (ICE) and its detainers is voluntary, Johnson stated, “I do not believe we should mandate the conduct of state and local law enforcement through federal legislation. I believe that the most effective way to work with jurisdictions, especially the larger ones, is through a cooperative effort, and I believe state and local law enforcement believe that as well.”
Goodlatte noted, however,that five of the highest priority jurisdictions have declined to participate in DHS’ priority enforcement program. Moreover, of the 276 sanctuary cities who have publicly taken up the position to not cooperate with ICE, these cities last year released approximately 8,000 criminal aliens on to the streets — most having not informing ICE they did so. In the short time since those 8,000 were released, they committed thousands of new crimes.
“Why wouldn’t it be a priority to do everything possible to mandate, influence, whatever the case may be, for them to honor ICE detainers rather than to see this occur?” Goodlatte questioned.
Johnson explained that 33 high priority jurisdictions have indicated a willingness to participate in one way or another, and that DHS has contacted “literally hundreds.” Furthermore, the overwhelming number have indicated a willingness to work with DHS, according to Johnson.
Earlier this year, Homeland Security Today reported that during a five-day, nationwide operation conducted by ICE targeting convicted criminal aliens subject to removal, 2,059 convicted criminal aliens were nabbed and two were added to ICE’s most wanted fugitives list. Of the total criminals arrested, 58 were known gang members or affiliates, and 89 were convicted sex offenders.
During the hearing, Goodlatte stated that, “Secretary Johnson considers as secondary priorities for removal aliens convicted of ‘significant’ misdemeanors – such as domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug trafficking or drunk driving. Yet, even this priority falls away if the aliens simply show ‘factors’ warranting relief.”
Goodlatte took the debate a step further when he criticized Johnson for releasing 30,000 criminal aliens last year. He noted that if DHS can’t operate with clean hands, then how can they go to these cities and rebuke them for releasing criminal aliens on to the streets.
Goodlatte explained DHS’ release of criminal aliens has helped to contribute to a growing list of nearly 350,000 individuals who are either under a deportation order or have deportation proceedings pending who have been released by ICE or others and are on the streets.
Johnson responded: “If you are asking me, should we reduce or eliminate the criminals who are released by sanctuary cities, I agree that we should work to reduce that number, absolutely. I agree with the spirit of the question.”
“But the trend is going the wrong way,” Goodlatte pointed out.