DHS Sec. Napolitano Gets Grilled by House Judiciary Committee in Oversight Hearing

If you’ve ever wondered what politicians actually do, the three-hour recording of the House Judiciary Committee’s Oversight Hearing of the Department of Homeland Security (DHS) provides a good glimpse into that exciting lifestyle. I watched the entire recording which took place in D.C. on Thursday, July 19, 2012 at 10am (EST).  (Scroll to the bottom to get a list of the unofficial timestamps for the recording and skip to the portions that most piques your interest.)

In short, it’s a very large group of House of Representative members who ask a series of questions of the Secretary of the Department of Homeland Security (Janet Napolitano) in order to assess how the DHS has or has not been performing.

The Major Takeaways

  • Deferred Action for DREAMers guidelines will be finalized sooner than anticipated (as early as August 1st).  Practitioners should stay tuned to these developments to find out when the guidelines will be released.  (Or, subscribe to this blog on the top right corner to get updates delivered via email.)
  • Litigation regarding the Deferred Action for DREAMers may ensue in federal court.  Split right down the party line, Republicans are very upset about the way in which the Secretary invoked prosecutorial discretion for the benefit of potential DREAMers.  (Though, the fact that Secretary Napolitano use to be the Governor of Arizona, a U.S. Attorney and a Clerk to a Ninth Circuit Court Judge, her legal acumen serves her well in terms of her legal authority to invoke priorities for an agency that falls under her jurisdiction.)
  • The Southwestern Border regions remain the most challenging areas for Customs and Border Protection (CBP).  Despite a record number of removals of foreign nationals conducted by this administration (the highest in history), there remains many questions regarding the ability of DHS (specifically CBP) to secure this particular region of the country.

Format of the Hearing

Opening remarks were made by the Committee Chairman, Lamar Smith (R) of Texas and Ranking Member John Conyers (D) of Michigan.  Mr. Smith’s opening remarks are available online and Mr. Conyers remarks are available at the timestamp below:

@0:23:20 Ranking Member Rep. Conyers Opening Remarks (D Michigan) Secretary of the Department of Homeland Security, Janet Napolitano’s opening remarks are also available in print online. Each member of the House Judiciary Committee is allotted a five-minute period to ask the Secretary questions related to her Administration’s policies and conduct (since the last Oversight Hearing in October of 2011).  The questions begin with Chairman Smith and ensue for another two plus hours though not all committee members were present. Some representatives were poised and methodical in their line of questioning.  Others, as you might witness, get visibly upset, flustered and on occasions raise their voices to where ranking members request for order and decorum.  (It’s like a soap opera for legal nerds!) Madam Secretary demonstrated poise under pressure.  There were times the lines of questions heralding scenes of a courtroom battle yet Madam Secretary managed to refrain from the trappings of a “yes” or “no” response.  (See the asterisked interviews below.)

(Unofficial) Timestamps and Synopsis (for informational purposes only)

@0:41:35 Chairman Rep Smith (R Texas) High-level security leaks to the public; would DREAMers be eligible for Advance Parole; how would parents of DREAMers benefit; will certified school transcripts be required.

@0:48:02 Ranking Member Rep. Conyers (D Michigan) Security threats to physical infrastructures in Michigan; Legal authority on issuing prosecutorial discretion; How is DHS responding to subpoenas of crime stats?

@0:53:27 Rep. Sensenbrenner (R Wisconsin) How are we tracking our visa overstays; Security risk created by flight school students who are foreign nationals.

@0:58:15 Rep. Nadler (R New York) What is DHS doing about being compliant in scanning 100% of inbound maritime cargo?

@1:03:28 Rep. Gallegly (R California) * Calls Deferred Action for DREAMers policy de facto amnesty; How many DREAMers will be given work permits while Americans are out of work; Worksite enforcement is down; How is DHS gong to fund visa security programs?

@1:15:11 Rep. Scott (D Virginia) How does the Deferred Action DREAMer applications work; Will they be able to travel; What will DHS implement PREA regulations; How is scanning technology used by DHS for vehicles vs. maritime containers; Is DHS fully utilizing the Federal Prison Industries program?

@1:20:55 Rep. Goodlatte (R Virginia) * What does “responding in a timely fashion” mean; Why was 287(g) abolished in certain communities; Will DHS commit to removing the Secure Communities success stories on its website; GAO reports that morale is very low at various DHS agencies; How will morale issues be addressed and alleviated?

@1:28:15 Rep. Watt (D North Carolina) Gratitude in cutting back on 287(g); Gratitude for ICE efforts in combatting counterfeiting and combatting theft of intellectual property; Appreciation of Deferred Action for DREAMers announcement.

@1:34:00 Rep.  Chabot (R Ohio) Will DHS work with original trademark and IP holders to combat counterfeiting and theft issues; Discussion of (pending) HR 4216 by Reps. Chabot and Poe (112thCongress).

@1:40:00 Rep. Lofgren (D California) Introduced into the record a serious of legal authority affirming Mad. Sec.’s legal authority to prioritize using prosecutorial discretion; Mentions DREAMer students she has encountered in her legislative dealings; Gratitude for Deferred Action announcement; Concern about notario fraud and DHS/DOJ efforts to combat.

@1:47:17 Rep.  Forbes (R Virginia) * Concerned at the method in which Mad. Sec. invoked powers of discretion to circumvent having to enforce the law; Reads definition of Executive Order from Black’s Law Dictionary; Did Sec. supersede powers of the President?

@1:53:02 Rep. Waters (D California) Gratitude for Deferred Action for DREAMers announcement; Concern about H-1B program.

@1:57:18 – Rep. King (R Iowa) Did DHS collaborate with White House on the June 15th Memo; When did White House know about it; Doesn’t Sec.’s exercise of prosecutorial discretion violate separate of powers?

@2:01:56 Rep. Pierluisi (D Puerto Rico) Gratitude DHS visited PR to assess crime status and discuss crime issues.

@2:06:08 Rep. Gohmert (R Texas) * Questions related to access to classified information by DHS appointed Homeland Security Advisory Council member.

@2:14:00 Rep. Poe (R Texas) Provides three examples of homicides committed by foreign nationals released from prison but not expatriated; What is DHS doing about expatriate criminally convicted foreign national felons who have completed their sentences but their home countries refuse to expatriate them; Will DHS continue to work with DOS?

@2:19:23 Rep. Chaffetz (R Utah) Sponsoring HR 3012 Fairness for High-Skilled Immigrants Act; How many weapons from Fast and Furious has CBP recovered; How secure are Southwestern border areas; What do the crime and removal statistics mean; Nogales crime statistics indicate a rise in crime.

@2:27:04 Rep. Gowdy (R South Carolina) Would Sec.’s understanding of prosecutorial discretion apply to the DEA Administrator as an example; If Sec is so correct on the law why not convince Congress; What remedy do lawmakers have; Wasn’t the Deferred Action for DERAMers announcement politically motivated?

@2:32:50 Rep. Chu (D California) Gratitude for DHS’s work on protecting IP and trademark rights of owners in the U.S.; Gratitude for Deferred Action for DREAMers announcement; How can DHS work to alleviate court backlog of immigration cases; What historical legal precedence has allowed prosecutorial discretion?

@2:38:29 Rep. Franks (R Arizona) Concerns about terrorists threats stemming from Islamic extremism; How is this incorporated into DHS training materials?

@2:43:04 Rep. Quayle (R Arizona) Will there be fee waiver process for DREAMers action; How will it impact taxpayers; What remedy does Congress have when executive branch does not follow the law; Can you provide more details on the statistics of success of 287(g) program?

@2:49:05 Rep.  Coble (R North Carolina) Will Deferred Action for DREAMers allow gang-members to benefit; How is DHS removing gang members?

@2:52:45 Rep. Adams (R Florida) * How many individuals have been deported under 243(d); Questions regarding Agent Terry’s killing; What are the DHS’ policies and procedures for responding to active shooters?

@2:58:15 Rep. Lungren (R California) Discussion of the history of immigration bills; If Congress gave DHS more funding, how would that moot prosecutorial discretion; How would parents benefit from the Deferred Action for DREAMers announcement; TSA indicated different procedures related to foreign nationals who attempt to take flying lessons and not checked against the No-Fly List.