NOMINATION OBJECTION; Congressional Record Vol. 159, No. 166
(Senate - November 20, 2013)

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[Pages S8355-S8357]
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                          NOMINATION OBJECTION

  Mr. GRASSLEY. Mr. President, today, I am announcing my intention to 
object to any unanimous consent request to call up and confirm the 
nomination of Mr. Jeh Johnson to be the Secretary of the Department of 
Homeland Security.
  As ranking member of the Senate Judiciary Committee, I, along with 
other Senators on the committee, wrote a letter to Mr. Johnson last 
Friday and asked his views on a number of important matters, including 
our Nation's immigration policies and the fair treatment of 
whistleblowers. We asked if he would cooperate with us on oversight 
matters and work with us to improve immigration policies going forward. 
We have not yet received a response from Mr. Johnson.
  Because the Judiciary Committee has primary responsibility over 
immigration matters, it is necessary to know any nominee's position on 
immigration policies before we can consent to the confirmation of a 
Secretary to head this very critical department. So, until we receive 
responses from Mr. Johnson to our letter, I will object to any 
unanimous consent agreement to move his confirmation.
  I ask that a copy of the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                   Committee on the Judiciary,

                                Washington, DC, November 15, 2013.
     Mr. Jeh Johnson,
     2001 K Street NW.,
     Washington, DC.
       Dear Mr. Johnson: As members of the Senate Judiciary 
     Committee, we have an important responsibility to conduct 
     oversight of the Department of Homeland Security (DHS), which 
     has a broad and critical mission and houses several different 
     agencies with varying functions. Our committee has primary 
     responsibility over immigration matters, and we believe it 
     necessary to know any nominee's position on immigration 
     policies before we can consent to the confirmation of a 
     Secretary to head this very critical department We also seek 
     your commitment in cooperating on oversight matters and 
     working with us to improve immigration policies going 
       At your confirmation hearing, you stated that, ``[i]f 
     confirmed, I will work to implement all legislation enacted 
     into law.'' While we may have different views than President 
     Obama on how to reform our immigration system, we have all 
     repeatedly expressed our strong disapproval of the refusal of 
     this administration--and DHS in particular--to enforce our 
     immigration laws, contradicting duly enacted federal law 
     through administrative orders and internal memoranda. These 
     actions have eroded the rule of law and undermined Americans' 
     confidence in their government. We hope that you will commit 
     to discontinuing these lawless policies if confirmed.
       So that we may properly carry out our constitutional duty, 
     we request that you provide answers to the questions below on 
     the important issues that you will confront if confirmed as 
     Secretary of DHS.


       1. In what ways, if any, would you depart from former 
     Secretary Napolitano's policies?
       2. Do you find any of former Secretary Napolitano's 
     actions, or any current DHS policies, to be objectionable? If 
     so, what? What would you do differently?
       3. Will you pledge to cooperate with congressional 
     oversight efforts and be responsive to all congressional 
     requests for information in a timely manner?
       4. Do you believe whistleblowers who know of problems with 
     matters of national security should be prevented from 
     bringing that information to Congress?
       5. Will you commit to ensuring that every whistleblower is 
     treated fairly and that those who retaliate against 
     whistleblowers are held accountable?
       6. Given your past involvement in President Obama's 
     political campaigns, how would you maintain your independence 
     from the White House as one of our nation's top law 
     enforcement officers?


       1. If confirmed as the head of the Department, you will be 
     responsible for the enforcement of the country's immigration 
     laws. Do you have any background or leadership experience in 
     the area of immigration law or immigration policy?
       2. If confirmed, it will be your job to implement our 
     nation's immigration laws. In your testimony before the 
     Senate Homeland Security and Government Affairs Committee, 
     you stated that you support ``comprehensive, common-sense 
     immigration reform.'' Accordingly, we would like to know your 
     position regarding the following:
       a. Should people here illegally be eligible for immigration 
     benefits, including legal status? If so, should those 
     individuals be responsible for all costs associated with it? 
     Should taxpayers shoulder any of the burden?
       b. Should people here illegally who are in removal 
     proceedings be eligible for immigration benefits, including 
     legal status?
       c. Should people who are subject to an order of removal 
     from the United States by the Department of Homeland Security 
     be eligible for immigration benefits, including legal status?
       d. Should an illegal immigrant convicted of a felony 
     criminal offense be eligible for immigration benefits, 
     including legal status?
       e. Should an illegal immigrant convicted of multiple 
     misdemeanors be eligible for immigration benefits, including 
     legal status?
       f. Should illegal immigrant gang members be eligible for 
     immigration benefits, including legal status?
       g. If an illegal immigrant provides information in an 
     application that is law enforcement sensitive or criminal in 
     nature, should that information be used by our government and 
     not be protected under confidentiality provisions? If an 
     illegal immigrant provides information in an application that 
     clearly renders him ineligible and commits a serious crime 
     that would warrant his immediate removal, shouldn't the 
     government be able to use that information to place him in 
     removal proceedings?
       h. Should people here illegally be required to submit to an 
     in-person interview with adjudicators when applying for 
     immigration benefits, including legal status?
       i. Should people here illegally that have been denied legal 
     status be placed in immigration proceedings and removed? If 
     not, why not?
       j. If the Secretary of Homeland Security must revoke a visa 
     for someone on U.S. soil, should that decision be reviewable 
     in the U.S. courts?
       k. In 1996, after the 1993 World Trade Center attack, 
     Congress mandated that the immigration service, with 
     cooperation from schools and universities, collect 
     information on foreign students. This system took years to 
     get up and running. In fact, it still wasn't in place on 9/
     11. While it is operational today, there is still work to be 
     done to make that system effective. Most recently, the 
     Department stopped all efforts to upgrade the system. Do you 
     intend to make SEVIS upgrades a priority, if confirmed?
       3. As a result of some of the actions of Secretary 
     Napolitano, particularly her Directive entitled ``Exercising 
     Prosecutorial Discretion with Respect to Individuals Who Came 
     to the United States as Children,'' several ICE agents, 
     including the President of the ICE agents and officers union, 
     the National ICE Council, Chris Crane, filed a complaint 
     against Secretary Napolitano stating that ``the Directive 
     commands ICE officers to violate federal law . . . violate 
     their oaths to uphold and support federal law, violates the 
     Administrative Procedure Act, unconstitutionally usurps and 
     encroaches upon the legislative powers of Congress, as 
     defined in Article I of the United States Constitution, and 
     violates the obligation of the executive branch to faithfully 
     execute the law, as required by Article II, Section 3, of the 
     United States Constitution.'' Moreover, Kenneth Palinkas, the 
     president of the National Citizenship and Immigration 
     Services Council, has likewise charged that USCIS employees 
     are required by the agency ``to grant immigration benefits to 
     those who, under law, are not properly eligible.'' In short, 
     her actions have caused a great deal of discontent among 
     immigration officers and agents, to say the least. 
     Accordingly, if confirmed, what will you do to improve the 
     morale of immigration officers and agents who are concerned 
     about these non-enforcement protocols issued by Secretary 
       4. In the more than four years that she served as Secretary 
     of the DHS, Secretary Napolitano never agreed to meet with 
     the National ICE Council, the union that represents more than 
     7,000 agency employees, or the National Citizenship and 
     Immigration Services Council, the union that represents 
     12,000 agency employees. Will you meet with representatives 
     from these unions and, if so, when?
       5. During the first five years of the Obama administration, 
     Secretary Napolitano and former ICE Director John Morton 
     issued numerous policy memoranda that order ICE

[[Page S8356]]

     agents to restrict their enforcement of immigration laws to 
     illegal immigrants who have been convicted of violent crimes. 
     If confirmed, will you continue that policy?
       6. Do you agree that a person who is in the United States 
     in violation of U.S. immigration law is subject to removal?
       7. Among the aforementioned memoranda issued by former ICE 
     Director Morton, the memo dated March 2, 2011, designates 
     immigration fugitives as a priority for removal. Do you agree 
     that illegal immigrants who ignore deportation orders should 
     be removed from the United States?
       8. Among the aforementioned memoranda issued by former ICE 
     Director Morton, the memo dated November 17, 2011, identifies 
     an illegal immigrant with a conviction for drunk driving as a 
     priority for removal. Do you agree that an illegal immigrant 
     who has been convicted of a drunk driving offense should be 
     removed from the United States?
       9. All federal employees take an Oath, codified at 5 U.S.C. 
     3331, to ``support and defend the Constitution of the United 
     States . . . and that [they] will well and faithfully 
     discharge the duties of the office on which [they] about to 
     enter.'' How can an employee fulfill his or her oath if such 
     an employee is threatened with reprisal for executing the 
     laws enacted by Congress to which they are entrusted to 
     administer, and for not complying with an administratively-
     created command to the contrary?
       10. In June 2012, Secretary Napolitano issued a memorandum 
     ordering the implementation of the Deferred Action for 
     Childhood Arrivals (DACA) program.
       a. If confirmed, will you continue this program?
       b. Do you believe that the President has the legal 
     authority to expand DACA through executive, regulatory or 
     policy prerogatives?
       11. Do you believe that the issuance of prosecutorial 
     discretion directives, such as those mentioned above, is 
     within the legal authority of the Secretary of Homeland 
       12. Since Zadvydas v. Davis, 533 U.S. 678 (2001), Congress 
     has attempted to pass legislation that would amend the 
     Immigration and Nationality Act to authorize DHS to detain 
     criminal aliens beyond six months. Would you support such 
       13. In September 2011, Secretary Napolitano suspended the 
     Border Patrol's practice of routinely screening mass 
     transportation vehicles and transportation hubs near U.S. 
     borders, which prompted a strong objection by the National 
     Border Patrol Council. If confirmed, would you reverse this 
     policy? If not, why?
       14. Beginning in 2010, DHS has included in its statistics 
     for ICE removals the number of illegal immigrants apprehended 
     by the Border Patrol and then transferred to ICE for 
     processing. Do you support this policy?
       15. In January 2012, the DHS Inspector General released a 
     report criticizing USCIS for pressuring its employees to 
     rubberstamp applications for immigration benefits. In that 
     report, nearly 25 percent of USCIS officers surveyed said 
     supervisors had pressured them to approve applications that 
     should have been denied.
       a. Do you believe that current USCIS screening procedures 
     are sufficient to prevent fraud and threats to public safety 
     and national security?
       b. If confirmed, would you change these policies? If so, 
       c. Will you commit to ensuring that USCIS background checks 
     for every applicant for immigration benefits are properly and 
     effectively conducted?
       d. Should employee performance evaluations at USCIS be 
     linked to the number of applicants for benefits approved, or 
       16. Recently, the U.S. arrested a legal immigrant in 
     Illinois who had been convicted and served ten years in an 
     Israeli prison for her role in two terrorist bombings. 
     According to press reports, she was able to obtain both a 
     green card (in 1995) and citizenship (in 2004) by simply 
     omitting her conviction on her applications. She continued to 
     live in the U.S. for years despite the fact that the 
     conviction was public knowledge. Are you confident that the 
     current processes for screening applicants for immigration 
     benefits are able to identify and keep out criminals and 
     individuals who pose a threat to national security?
       17. Some have argued that immigration judges should be 
     granted broad discretion to allow an illegal immigrant who 
     should be removed from the country to stay by waiving current 
     bars to admission and removal grounds for numerous crimes 
     (such as drug crimes, firearms offenses, domestic violence, 
     fraud, high speed flight at a checkpoint, and crimes 
     involving moral turpitude) if the judge finds that the 
     illegal immigrant's removal will cause hardship to a citizen 
     or lawful permanent resident or if the judge believes it is 
     in the public interest. Do you agree with this approach? If 
     so, please explain why and specifically, whether you believe 
     current immigration law is too harsh with respect to illegal 
     immigrants who engage in this type of criminal conduct.
       18. On December 21, 2012, ICE announced that it decided not 
     to renew any of its agreements with state and local law 
     enforcement agencies that operate task forces under the 
     287(g) program, stating that ``other enforcement programs, 
     including Secure Communities are more efficient use of 
     resources.'' However, Secure Communities serves a completely 
     separate and distinct function. The 287(g) program trains 
     local officers to determine whether an individual is lawfully 
     present, including those with no prior contact with 
     immigration services. Secure Communities allows local law 
     enforcement to identify illegal immigrants only after they 
     have been booked into jail and if their fingerprints are 
     already in immigration databases. Moreover, ICE's own website 
     touts the 287(g) program as ``one of ICE's top partnership 
     initiatives.'' The website used to advertise the success of 
     the program: ``Since January 2006, the 287(g) program is 
     credited with identifying more than 304,678 potentially 
     removable aliens--mostly at local jails.'' Such statistics 
     appear to have since been removed. If confirmed, will you 
     commit to enter into 287(g) agreements with a qualified 
     requesting state or local jurisdiction?
       19. After being criticized by certain special-interest 
     groups, the administration essentially halted all worksite 
     enforcement actions. According to the non-partisan 
     Congressional Research Service, in 2011, worksite enforcement 
     actions resulted in the arrest of 1,471 illegal workers out 
     of an estimated 8 million--.0001 percent. In the same year, 
     only 385 employers out of 6 million were fined for hiring 
     illegal workers. If confirmed, will you commit to reinstating 
     worksite enforcement, including enforcing immigration law 
     with respect to illegal alien employees?
       20. If confirmed, what specific measures will you implement 
     to ensure that the Department of Homeland Security is in 
     compliance with all legal requirements of the Secure Fence 
     Act of 2006 (P.L. 109-367)?
       21. In 2010, Secretary Napolitano suspended our nation's 
     only comprehensive border security measurement, known as the 
     operational control metric. More than three years have 
     passed, and the Department of Homeland Security has failed to 
     replace this metric. If confirmed, would you hold your 
     department accountable by regularly releasing a comprehensive 
     border security metric that measures the percentage of 
     illegal border crossers that escape apprehension by the 
     Department of Homeland Security?
       22. Do you believe that the Department of Homeland Security 
     has the ability to achieve operational control of every 
     sector of our Southern border? If confirmed, would you commit 
     your department to achieving this standard?
       23. Do you support the transfer of unused and unarmed 
     Department of Defense assets, such as detection and 
     communications equipment, to the Southern border in order to 
     help DHS achieve operational control of every sector of the 
     Southern border?
       24. Our Southern border ports of entry are outdated and in 
     a state of disrepair--harming legitimate trade and travel, 
     while making our nation more vulnerable to sophisticated 
     criminal and terrorist organizations. If confirmed, what 
     specific measures would you take to revitalize and improve 
     security at our Southern border ports of entry?
       25. Do you support making E-Verify permanent and mandatory 
     for all employers?
       26. Serious national security issues have come to light in 
     recent months with respect to the EB-5 Regional Center 
     program, which allows foreign nationals to obtain a green 
     card if they invest in the United States.
       a. Do you concur that more needs to be done to reduce 
     national security risks and to prevent fraud and abuse in the 
       b. Do you have any plans to administratively improve the 
       c. Will you make it a priority if you are confirmed?
       27. DHS currently receives a portion of funds from each H-
     1B visa application and provides these funds to USCIS for 
     fraud and abuse prevention efforts. However, ICE has a 
     responsibility to prosecute the cases but does not receive 
     any of these funds. Will you
       28. Oversight conducted by the Judiciary Committee has 
     revealed that DHS is not enforcing the law prohibiting the 
     admission into the country of those who would be a public 
     charge. This has been confirmed by ICE and USCIS officers and 
     data on both admissions and removals. Oversight also 
     discovered a number of administration activities, including 
     advertisements in immigration materials and at foreign 
     embassies, encouraging foreign nationals to use federal 
     welfare programs. Can you please describe, in detail, how you 
     would restore vigorous enforcement of the public charge law 
     to protect taxpayers, including what efforts you would 
     undertake to reduce noncitizen enrollment in means-tested 
     welfare programs? Please be specific in your answer.
       29. Dating back to 1996, Congress has mandated in six 
     statutes that a biometric entry-exit system be implemented. 
     In 2012, Rebecca Gambler, GAO's Director of Homeland Security 
     and Justice Issues, testified before the Judiciary Committee 
     that ``DHS faces challenges in identifying overstays due to 
     its general reliance on biographic entry and exit 
     information, rather than biometric information, hindering 
     DHS's efforts to reliably identify overstays. . . . Without 
     [biometric] exit capability, DHS cannot ensure the integrity 
     of the immigration system by identifying and removing those 
     people who have overstayed their original period of 
     admission--a stated goal of US-VISIT.'' For precisely that 
     reason, a biometric--and not a biographic--exit system must 
     be implemented to achieve real border security. Secretary 
     Napolitano refused to implement such a system, variously 
     claiming it was too expensive and/or that the technology did 
     not exist. However, an internal 2009 DHS report found 
     conclusively that biometric exit is effective and efficient, 
     and current data from industry demonstrates that the 
     technology is affordable.

[[Page S8357]]

       a. Do you disagree with GAO or that a biometric exit system 
     must be implemented to ensure real border security?
       b. Do you acknowledge that federal law requires DHS to 
     implement a biometric entry- exit system?
       c. If confirmed, will you commit to implementing this 
     system within one year?
       We appreciate your pledge of ``transparency and candor with 
     Congress,'' and look forward to your prompt response.
     Chuck Grassley.
     Jeff Sessions.
     Michael S. Lee.
     Orrin Hatch.
     John Cornyn.
     Ted Cruz.