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House Subcommittee Questions ICE Director on Prosecutorial Discretion and Sanctuary Cities


This past Thursday, the House Appropriations Subcommittee on Homeland Security hosted a hearing with Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement) John Morton about the FY2012 budget. The hearing was initially scheduled for February 17th, but was moved to accommodate Director Morton who had a scheduling conflict. Among the topics of discussion were prosecutorial discretion, the 287(g) program, Secure Communities, and sanctuary cities.

The Members in attendance included Robert Aderholt (Subcommittee Chairman) from Alabama, David Price (Subcommittee Ranking Member) from North Carolina, John Carter of Texas, Lucille Roybal-Allard of California, Rodney Frelinghuysen of New Jersey, Nita Lowey of New York, and Tom Latham of Iowa.

Chairman Aderholt opened the hearing with an opening statement that pretty much summed up the frustration expressed by Members of Congress and the general public when he said the Administration is “hiding behind the excuse of limited resources” and neglecting their immigration enforcement responsibilities. He continued by saying that Congress has bolstered the ICE ranks for nine straight years, including more bed space and support for the Secure Communities initiative. Most importantly, he stressed that his committee is focused on providing resources to uphold the law, not undermine the law.

Ranking Member David Price made his opening statement by defending President Obama’s budget request, claiming that the removal of criminal aliens has increased by 89% since 2008. He expressed pride in the current Administration’s policies because, like the Administration, he believes immigration enforcement should only apply to hardened criminals, not the average illegal alien. He continued by expressing support for the Secure Communities Program and applauded the removal of the 287(g) program.

In the previous Congress (111th), Rep. Price chaired this particular subcommittee and removed the 287(g) program only to have it restored during the amendment process. He continued by saying he was “intrigued” by the Administration’s decision to move funding from traditional immigration detention to “detention alternatives,” in other words letting the illegal aliens go and expect them to show up for a court hearing.

When it was Director Morton’s turn to present his statement, he read his usual speech with his head down and making little eye contact with the Committee Members. While some of the numbers may have been slightly different, his underlying position was support for universal deployment of Secure Communities.

During the question and answer period, Chairman Aderholt asked why Secure Communities was stopped in Alabama (similar to the question Mike Rogers of Alabama asked Secretary Napolitano during the Homeland Security hearing a couple weeks ago).

Similar to the Secretary Napolitano’s response, Director Morton claimed that the program was suspended because of the litigation surrounding the Alabama immigration law and would remain that way until the Supreme Court makes their ruling on the Arizona law at the end of the year.

Chairman Aderholt expressed frustration with this decision and essentially said the delay was an immature reaction that was bad for public safety. He then said, “We’re disappointed with what you have told us,” as if he were lecturing a teenager (a fitting metaphor in this case).

When it was Ranking Member Price’s turn to ask questions, he wanted to know when ICE was going to start taking action illegal aliens involved in minor traffic offenses, instead of just the harden criminals and wanted to know if victims of domestic violence should be removed.

Director Morton responded by asking what minor offenses would warrant immediate removal and stressed the importance of letting the courts take action first. He wasn’t sure about the domestic violence issue.

Rep. Price than stated that there was fear in the “immigrant” community about being deported or facing lawlessness.

Director Morton agreed with his assessment.

Rep. John Carter then asked about prosecutorial discretion and wanted to know where the policy originated.

Director Morton took credit for the policy and said he instructed the Department’s attorneys to pick out the very low level offenses and claimed that the Supreme Court had upheld this authority.

Rep. Carter disagreed, but Morton did agree that it was Departmental policy, not federal statute. Rep. Carter then wanted to know how many are given deferred action.

Director Morton said the Department didn’t take individual requests, but had closed 1,500 cases and that most were aliens who had been here long term or had a legal spouse or child.

When it was Rep. Roybal-Allard’s turn to ask questions, she expressed concern about the “minority community” in regards to Secure Communities (a program that removes criminal aliens). She said she was particularly concerned about racial profiling.

Director Morton responded by assuring her that the Department is working with the Office of Civil Rights on this matter and shared her concern, but didn’t want to put hardened criminals back on the streets.

While Rep. Frelinghuysen then asked about identity fraud and Rep. Lowey asked about prison rape, Rep. Latham returned to the 287(g) question and asked why the program was being removed since it was a force multiplier for ICE. He insisted that the program was not redundant and that comparing it to Secure Communities was like comparing apples to oranges.

Director Morton responded by claiming that 287(g) taskforces have not been productive, taking DHS funds but not turning over any apprehensions (arguing fiscal management). He said most of the 287(g) success came from jail model rather than the taskforce model. Furthermore, he said the Department wanted to eliminate the taskforce funding while moving the prison funding to Secure Communities.

Chairman Aderholt and Ranking Member Price then jointly expressed concern about sanctuary cities being “crime havens.”

Director Morton shared their concern but insisted that it was not a big problem outside of Cook County, Illinois, which was actively releasing hardened criminals and that the Department was still trying to determine what action to take.

That question concluded the hearing and the Members were dismissed.

With everything said, it was a rather short hearing for a small but important subcommittee. Unfortunately, despite some interesting questions, it was more of the same from this Administration, which hesitates to enforce the law.

JONATHAN OSBORNE is the Chief Legislative Assistant for NumbersUSA

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