Department of Homeland Security (DHS) Secretary Kirstjen Nielsen testified before Congress Thursday as the Trump administration surges resources to the southern border and faces legal backlash for ending the DACA program, that protected undocumented immigrants brought to the country as children.
Republicans and Democrats on the House Homeland Security Committee took turns grilling Nielsen, in her first appearance before the committee since taking office nearly five months ago. President Donald Trump's immigration and border security policies were at the top of the agenda.
DHS 'COMPLYING' WITH DACA RULING
The Department of Homeland Security responded to a ruling by a federal judge this week and will no longer deport immigrants protected under the Deferred Action for Childhood Arrivals (DACA) program.
President Trump ordered the termination of the program last fall and gave Congress a March deadline to legalize the program or he would end it unilaterally. On Tuesday, U.S. District Judge John Bates in Washington ruled the administration's reasons for ending DACA were "arbitrary and capricious," the order was "unlawful" and must be set aside.
Nielsen informed lawmakers DHS is "complying" with the court and guaranteeing legal protection for the 800,000 undocumented immigrants brought to the country as minors and will renew DACA applications.
Nielsen explained, "If you are a currently a registered DACA recipient you will not be deported. If you have applied for recertification as a DACA individual you also will not be deported." DHS is not accepting new applicants to the program.
DHS and the administration have 90 days to make a better case as to why the original 2012 program is unlawful. If they can't, DHS will have to start accepting new DACA recipients. Department of Justice lawyers originally argued President Barack Obama's 2012 order creating the immigration program was executive overreach, charges made by 26 states who sued the prior administration.
Asked by one Democrat to present a more compelling case for rescinding DACA, Secretary Nielsen repeated the claims deemed "insufficient" by the U.S. District Court judge, saying Obama 's creation of the program was "an inappropriate use of executive power."
According to Rep. Nanette Barragán, D-Calif., Nielsen's response was good news for DACA recipients and bad news for the administration. "If the top cop at the Department of Homeland Security has no better explanation, they're in trouble," she told Circa.
There is bipartisan agreement in Congress to protect so-called Dreamers, but lawmakers missed their chance to pass legislation last month, in part because of multiple court challenges to Trump's rescission.
A number of lawmakers told Circa the court's intervention allowed Congress to postpone addressing the issue of Dreamers and bigger immigration questions.
"That’s an indictment of us in Congress," said Sen. Johnny Isaakson, R-Ga. "We should have the will and fortitude to see it get done, not protract it. And that’s what we should have done on DACA."
'CARAVAN' PROVOKES QUESTIONS ABOUT CATCH & RELEASE
In her testimony, Secretary Nielsen directly addressed the issue of the so-called "caravan" of Central American migrants asserting "we have zero tolerance for illegal entry."
Earlier this month, President Trump reacted to press reports on a group of approximately 1,500 Central American migrants traveling through Mexico to seek asylum in the United States. The migrants were associated with the activist group, People Without Borders, who organize the caravan every year.
Mexican authorities disbanded large parts of the group, but this week the Department of Homeland Security and Justice Department surged resources to the border to deal with approximately 200 members of the "caravan" seeking asylum in the United States. On Monday, DHS announced it was sending federal immigration attorneys, judges, prosecutors and asylum officers to the border to quickly prosecute the migrants.
"Participating in a caravan does not give you additional rights," Nielsen told lawmakers, asserting the department was prepared to fully enforce the law.
"If you illegally enter our country, you will be referred for prosecution. If you file for a false asylum claim, you will be referred for prosecution. If you aid and abet or coach someone to break our laws, you also will be referred for prosecution," she stated.
For a number of Republicans, the caravan has become a rallying cry for their efforts to end the so-called "catch and release" policy.
Homeland Security Committee Chairman Mike McCaul of Texas explained Thursday that because of "loopholes" in U.S. immigration law, individuals traveling from Central America can turn themselves in at the border, claim asylum and they will be released into the United States.
"My concern is with the legal loopholes," McCaul said, referring to U.S. policy towards Central American migrants, unaccompanied minors and asylum seekers. "You'll have the same problem with this caravan once they come to the United States, they will be detained and then released into our society."
Under current law, individuals who come to the border claiming credible fear have a right to have their asylum claim heard in court. Unaccompanied minors have the same right. However, Nielsen reported only 3.5 percent of unaccompanied children show up for their court date. Many asylum seekers also do not return for court.
According to DHS statistics, the number of asylum claims processed by DHS has increased by more than 1,700 percent since 2008 with Northern Triangle countries of El Salvador, Guatemala and Honduras making up the majority of the claims. The majority of the claims are rejected.
Nielsen further noted a troubling 800 percent increase in the number of unaccompanied children encountered at the border over the past year. She argued the current law allowing unaccompanied children to be released to guardians in the United States is being exploited by human traffickers and gangs, like MS-13.
These legal loopholes, she said, act as "strong pull factors" that entice human traffickers, gangs and transnational criminal organizations "who understand that our ability to actually remove those who come here illegally does not keep pace" with the number of people encountered at the border.
Nielsen called on Congress to close these and other loopholes, saying, "For border security to work, violation of the law must have consequences."
A number of Republicans on the House Homeland Security Committee drafted legislation to end the catch and release policy and address other loopholes, but it is not likely to pass this Congress.
The prospects for a similar bill are even worse in the Senate, according to Republican Sen. Chuck Grassley of Iowa, who also drafted legislation to end catch and release.
"You can't get any little or big immigration bill up without somebody saying we shouldn't be taking this up until you pass comprehensive immigration [reform]," Grassley told Circa.
"As long as we can't get any immigration bill up, whatever can be done in that area—and I'm not sure it's much—will have to be done by administrative action," Grassley continued.
The White House has already employed that tactic, instructing DHS and DOJ to head off the migrant caravan with additional legal resources, sending 4,000 National Guardsmen to the border or reprioritizing targets for immigration enforcement.
BORDER WALL & INFRASTRUCTURE
The main purpose of Nielsen's appearance before Congress Thursday was to discuss the department's 2019 budget, a $47.5 billion request.
In its official 2019 budget, the Trump administration requested $18 billion total for border security, infrastructure and enforcement.
Nielsen said $1.6 billion of that total will be put toward the construction of 65 miles of new wall or fencing along the U.S.-Mexico border. It would be a small down payment on the project Nielsen estimated will cost $25 billion.
Already, Congress gave DHS $1.6 billion for border security as part of a compromise government spending deal last month. Approximately $1 billion was appropriated for new technology and DHS was prohibited from using that money to build new sections of border wall.
Nielsen took heat from Democrats on the committee who pressed the secretary to explain why her department was asking Congress for money after President Trump promised Mexico would pay for the wall. One Democrat asked Nielsen directly how much money Mexico had given the United States for the wall. She responded flatly that DHS made the request to Congress through the appropriations process.
In an effort to make the math match Donald Trump's campaign slogan, Republican Rep. Mike Rogers of Alabama asked Nielsen to support a bill he sponsored to impose a 2 percent tax on remittances going to Mexico and South America.
Despite the controversy over the cost and effectiveness of a border wall, Nielsen defended the project and its component parts as "the first and best way" to help states and local communities who manage the downstream effects of illegal immigration.
Nielsen also appealed to Congress to provide the $18 billion for border protection citing the "unacceptable levels" of drugs, illegal immigration and transnational criminal organizations illegally coming across the southern border.
When Trump took office, Customs and Border Protection saw illegal border crossings drop to a 46-year low. That trend has reversed in recent months, Nielsen said, adding the latest statistics "tell a dangerous story."
In March, CBP documented a 200 percent increase in the number of illegal immigrants encountered at the border compared to the same time last year. At the same time, there was a 37 percent rise in the number of drug seizures at the border and a 73 percent increase in assaults on border agents.