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Senate Hearing with DHS Secretary Nielsen. Aired 10:30-11a ET

Aired January 16, 2018 - 10:30   ET



POPPY HARLOW, CNN: All right. Homeland Security Secretary Kirstjen Nielsen by the chair of the Senate Judiciary Committee, Chuck Grassley. Let's listen.

SEN. CHARLES GRASSLEY, R-IOWA: -- preventable.

Sadly, Congress has long refused to pass enhanced penalties for dangerous criminal aliens, penalties that could have prevented these killers from being in our country.

Many of my colleagues have long claimed that they support removing dangerous criminal aliens in this country, yet they're refusing to consider interior enforcement measures as part of a DACA deal. My colleagues claim it's unfair to have the whole weight of immigration reform on the backs of DACA kids, to harm their dreams with enhanced enforcement measures.

But I think it's pretty clear that state -- Kate Steinle and Sarah Root's -- have dreams as well. My question to you: I -- I'm sure you'd agree that they deserved to live in peace and harmony. Is it fair to their memories and legacies to continue allowing dangerous criminal aliens to remain at large in our country?

NIELSEN: No, sir.

GRASSLEY: What new authority does your department need to make it easier to detain, punish and speedily remove dangerous criminal aliens? Should such measures be a part of any potential DACA deal?

NIELSEN: We need to re-look at the basis for which we can remove an alien. There are loopholes that prevent us, in various cases, from removing somebody from what we would all generally consider to be a serious crime.

We also are limited, through court cases, for how long we can detain a criminal alien after we apprehend them. We need to address that. There's a deterrence issue there, just as there is in any other law enforcement context. We need the ability to remove, once we detain dangerous criminals.


I want to go to unaccompanied children. As you know, Customs and Border Protection has reported that a number of apprehensions at our southern border -- are down, including apprehensions for unaccompanied alien children. Obviously, good news.

The journey from a minor's home country can be perilous for children. For years, I've written about cases in which smugglers have exploited unaccompanied alien children and taken advantage of lenient detention systems.

Most recently, I wrote about another incentive for vulnerable children to come here, to access our government-facilitated abortion services. I will ask you to answer this more fulsomely in your response to my letter.

But has the department seen evidence of smugglers exploiting unaccompanied alien children by promising access to certain health services in custody? If so, what steps has the department taken, through Human Smuggling Cell or other directorates, to -- taken to detour smuggling or trafficking of unaccompanied alien children?

NIELSEN: Yes, sir. Thank you for the question.

As you know, this month, we particularly look at human trafficking at DHS and how to prevent it. It is, make no mistake, modern-day slavery. We all need to work together. I know that various members have bills on human trafficking, and I look forward to work on that.

But, with respect to your specific, broader question, the transnational criminal organizations, the coyotes and those who traffic in people and illicit goods, do it as a business. So, yes, they exploit any reason in which somebody might have the opportunity to either receive a benefit that they do not qualify for, or to be able to stay in this country in an illegal status.

They have that information. They provide it to those, and encourage them to take that dangerous journey, in exchange for a false promise that they will not be captured and deported by the United States.

GRASSLEY: Have you seen a decrease in the unaccompanied alien children asylum cases, since decision to an -- end the Central American Minor program?

NELSEN: Sir, we have seen some decreases overall, but I would like to point out, unfortunately, we have a 30 percent increase in UACs from October through December. And we also have a 68 percent increase in family units during that same time period.

GRASSLEY: As you know, Congress is currently considering a number of young men and women to provide legal status to in any potential deal on DACA. Some people, like this senator, believe that we should limit any status to the 690,000 individuals currently enrolled in DACA. These young men and women came out of the shadows and built their life around DACA.

They were brought to this country through no fault of their own, and didn't make a conscious choice to break our nation's laws. I believe there is an equity issue that necessitates addressing their status.

However, that equity issue isn't present for their parents. Those men and women did choose to violate our nation laws and did make a conscious choice to immigrate here without papers. We shouldn't reward that behavior.

Reports suggest several of my colleagues are now considering providing legal work authorization to these individuals. To the best of your knowledge -- my first question -- how many million of people would benefit from an amnesty that provides work authorization to the parents of Dreamers?

NIELSEN: Sir, what I would say is I can tell you the number of DACA registers -- registered, which, as you said, is 690,000 -- 690,000 is the number that the Department of Homeland Security begins with in any discussion.

There are a variety of bills that you know that then -- takes that population and expands it by either increasing the time period in which they could have first entered, increasing the age for which one is considered to be a so-called "Dreamer" and/or capturing family members and providing and some sort of status, as well.

I would just say, though, that it is our position to find a permanent solution. We are not interested in addressing this through piecemeal, through year-after-year renewals, through anything less than a permanent solution.

GRASSLEY: What impact would such an amnesty have on our nation's border security?

NIELSEN: It would -- it -- it's almost separate issues. It would take 690,000 and place them into a permanent status of some sort. Hopefully, that will indicate to others that that group is alone, that we are not having a larger discussion, that we have to balance what the folks that are here and the folks who watch what we do here and decide to undertake that journey.

So, it will have the effect of addressing the population we're talking about, but I hope it does not have a negative effect of incentivizing others to come here in hopes of eventually receiving status.

GRASSLEY: Senator Feinstein?

FEINSTEIN: Thanks, Mr. Chairman.

Madam Secretary, I wanted to ask you about this. A few weeks ago, it was reported that a one-year-old child was separated from his father when they presented themselves at the border. It appears, and I don't know whether it is, that this was not an isolated case and that the administration is considering a proposal that would separate children from their parents at the Southwest border.

As I understand it, you have yet to sign off on this proposal, and your predecessor, John Kelly, rightly rejected it. Is this policy still under consideration and what is your position?

NIELSEN: Thank you, ma'am, for the question. I'm not familiar with the specific example that you provide, but I would just say under TVPRA, when an unaccompanied child or child presents itself at the border and we cannot confirm that they are with a parent, we have to follow the protocols to assume there is a possibility they are trafficked.

So just to be clear, one is a policy, which I know is your question, I'll get to. But I just want to make sure that we also, of course, when you take care of the children who come here and make sure that they actually are with somebody who is a family member who can prevent -- who can take care of them.

With respect to your question, we have not made any policy decisions. We are in a position where we are trying to be able to promptly remove those we apprehend. What we find at the border is, given a variety of court cases, we are forced, in conjunction with the HHS to let children, after 20 days, we can no longer detain them. So what that means is, that once we release the child, we then release their parents as well.

So we're looking at a variety of ways to enforce our laws to discourage parents from bringing their children here illegally, but no ma'am, no policy decision has been made on that. And I'd be happy to work with you and look at other alternatives.

FEINSTEIN: Well, how big a problem this?

NIELSEN: UACs is a big problem, as I said. We have seen a 30 percent increase in just the last few months and a 68 percent increase in so- called family units, which, in some cases, include very young children.

FEINSTEIN: And what is the current policy as to how to handle this? Say the child is young, part of a family, what happens?

NIELSEN: When we encounter the child, whether they're part of a family unit or not. We try to detain them, if you will, in a family unit, but in some cases, given a variety of court cases, they are treated as an unaccompanied child. In that situation, we turn them over to Health and Human Services after 72 hours.

Health and Human services then looks for either a parent located in the United States or another sponsor who will come forward and care for that child. If we are not able to bring that child to court within 20 days, or otherwise adjust or determine their status, we must let them go.

FEINSTEIN: How many did you bring to court within 20 days?

NIELSEN: Not enough. I don't have that figure. We can get back, but what we do find is that 90 percent of those released never show up for court, 90 percent.

FEINSTEIN: They just disappear?

NIELSEN: Yes, ma'am.

FEINSTEIN: So, what do you think the solution is? NIELSEN: I think we have to look more broadly at all of the different rules and how they are put together. I think we need a comprehensive approach. There are quite a few loopholes.

For example, it should be clear if you're unaccompanied or not. If you're with your parents, you should be treated as a child coming with your parents. If you're unaccompanied, perhaps we have different duties and we need to look at that child in a different way.

They also should not, in my opinion, receive any additional benefit. They need protection, but, for example, right now, they have not only two bites of the apple, in terms of our immigration process. They go through a regular process and the immigration courts, but they also have well over a year in which they can claim asylum. If you are an adult, you have a year in which you can claim asylum.

FEINSTEIN: You said they can claim asylum?

NIELSEN: The children. Yes, ma'am.

FEINSTEIN: The children?


FEINSTEIN: How young can you be and claim asylum?

NIELSEN: I -- I wonder that myself, but the point being that you can many -- be here many, many years as a so-called unaccompanied minor, and then claim asylum. So there's the -- it's a problem because, unfortunately, the way that the coyotes and others have provided information to them, they realize that there's a loophole. So they can wait many, many years before they make that claim. And, frankly, what that does is that just adds to our backlog.

We have hundreds of thousands of cases in backlog. It's very important for us to be able to focus on those who, of course, truly need asylum. But they sometimes are buried within the larger numbers of those who perhaps do not need asylum.

FEINSTEIN: How do you assess the size of this problem? Is it a major problem? Is it restricted just to some areas and some groups of people?

NIELSEN: I -- I would say it's a growing problem because, unfortunately, what we find through interviews of those that we do apprehend at the border, they have the magic words, if you will, of credible fear. The standard is quite low, that's something else that we have asked as part of our discussions to work with Congress on.

There are those who truly do fear for their lives. We need to be able to protect those. There are many other -- many others, unfortunately, that we find who are trained by those who are trafficking them to just use those words. And given the laws in court cases, we must immediately treat them as if they are seeking asylum and put them into the system.

FEINSTEIN: How many children now do you have in custody in this situation?

NIELSEN: I -- that I can get back to you, I don't know the number.

FEINSTEIN: Would you?

NIELSEN: Yes, ma'am.

FEINSTEIN: Appreciate that. The administration's decision to terminate temporary protected status for Haiti, Nicaragua, the Sudan and El Salvador looks like it's going to have a significant economic and humanitarian consequence. TPS holders work in key industries, as you know, performing a lot of indispensable jobs and they're important. Additionally, it looks like this is going to have an adverse affect on children.

It's my understanding that around 273,000 U.S. citizen children have a parent who's a TPS holder. And it's my understanding that El Salvador requested that this designation for its nationals continue, expressing concern about whether they could manage the return of some 200,000 individuals. Can you just tell us some of the arguments that El Salvador made in support of TPS designation and why those were not persuasive?

NIELSEN: Yes, ma'am. I did have the opportunity to speak to a variety of government officials from El Salvador. In our discussions, they were very concerned about the time period in which it might take for them to be ready to bring back their citizens. We did not talk generally about the country conditions, and I want to be very clear on this. The law does not allow me to look at the country conditions of a country, writ large.

It requires me to look very specifically as to whether the country conditions originating from the original designation continue to exist, in this case, the 2001 hurricanes in El Salvador. So we didn't dispute the country conditions are difficult in El Salvador, but unfortunately, the law requires me, if I cannot say that the conditions emanating from the earthquakes still exist, regardless of other systemic conditions, I must terminate TPS. So the discussion was around the time period. The reason that we delayed it for 18 months was because they were persuasive.

FEINSTEIN: Do you believe the law should be changed? Because ...

NIELSEN: I believe we...

FEINSTEIN: ...maybe we should take a look at that and work with you.

NIELSEN: I think we should take a look at it, absolutely. I think what we -- and I know there are some bills that have been proposed to do just that. This was meant to be a temporary status, as you know. The difficulty with that is when people are here for 20 plus years, in the case of El Salvador, they have roots. They're contributing to the society. They are otherwise making our economy strong. So, yes, we do need to look at this and find a better way to come up with a permanent solution.

FEINSTEIN: Would you be willing to work with us in that regard?

NIELSEN: Absolutely.

FEINSTEIN: Good, thank you. I think I'll end it there. Thank you.

GRASSLEY: Thank you.

Senator Hatch?

HATCH: Thank you, Mr. Chairman.

I'd like to begin with R-1 religious worker visas, which are a crucially important issue for my state. I had been scheduled to meet, last week, with USCIS personnel -- or Director Francis Cissna on the issue. But unfortunately, the meeting had to be canceled at the last minute. I'm hopeful it can be rescheduled soon.

I'm planning to ask Director Cissna to consider revising the R-1 regulation to allow a blanket petition for traditionally uncompensated missionaries in instances where the petitioning church is a frequent user of R-1 visas, and has a strong record of compliance with R-1 rules and regulations.

Increased delays in R-1 visa processing times have had a sharply negative effect in -- on R-1 visa applications and applicants, and the important humanitarian an ecclesiastical work that -- that they do. Will you please follow-up with Director Cissna and ask him to give this request all possible consideration?

NIELSEN: Absolutely. Yes, sir.

HATCH: Thank you. This issue may not be a headline grabber but it's tremendously important to me and to my state, and I will be pushing on it.

I'd like to turn now to H-1B visas. Reports indicate that the department is -- is preparing to rescind a 2015 rule allowing spouses of H-1B visa holders to obtain work authorizations -- work authorization if the H-1B visa holder is being sponsored for a green card.

And I have to say that the -- that the 2015 rule, seemed to me to be a pretty sensible policy. It's the same policy reflected in my bipartisan Immigration Innovation Act and in the Republican sponsored SKILLS Visa Act that was reported out of House Judiciary two Congresses ago.

Can you explain why DHS is planning to rescind this policy?

NIELSEN: Sir, we'd be happy to work with you on that. I think, broadly, we're looking at all of the visa categories, which are -- which, as you know, are numerous. I think, unfortunately, over the years, in general, we have gotten away from the intent of Congress with respect to some of the visa categories, so we need to look holistically. H-1B -- I will happy to get back to you specifically on that, what you just described. HATCH: Well, thank you so much. Now reports also indicate that the department is evaluating ways it can stop granting three-year extensions for H-1B visa holders who are being sponsored for green cards and who are subject to lengthy delays because of per-country green card limits.

Now, I believe that Congress previously addressed this issue in 2000, and indicated its intent to allow such extensions. Can you tell me if the department is, in fact, considering ways to stop granting these three-year extensions? And, if so, why? And I'd also be interested in hearing the department's explanation of how ending these extensions squares with the 2000 law.

NIELSEN: Thank you, sir. I'm not familiar with the very specific example on H-1B, but I will get back to you immediately after this.

HATCH: OK. I appreciate that. I'd like to turn now to the issue of cybersecurity. This is a critically important part of the department's mission and one that demands close attention.

Last month, Jeanette Manfra, the Assistant Secretary for Cybersecurity and Communications, announced that DHS is planning to significantly expand its engagement with the private sector to combat threats like the 2017 WannaCry cyber attack, which was attributed to North Korea.

Can you provide specific examples of how you expect DHS's cybersecurity collaboration with the private sector to change, following last month's announcement?

NIELSEN: Sure. And, sir, I will keep it short because I'd be happy to talk about this all day and all the great things we are doing. In general, we're looking to do a couple of things.

We have, as you know, an automated indicator sharing program. We're looking to make sure that, once we've identified threats, we can disseminate that in not only a way that's actionable but a way that's tailored to different companies in different sectors.

We're also working with the private sector to understand what it is that's really critical. Traditionally, as you know, we have looked at 16 critical infrastructure sectors, but given the interconnectivity of the world today, we're moving towards a look at essential functions which might cross sectors.

So, what is the function that is truly critical? And how can we partner with the private sector to not only give them information on known threats, but to help them anticipate threats before they get there?

In terms of network defenders, we need to continue to connect them. As we see, these threats propagate across the world as we saw with WannaCry the patching is extraordinarily important. I would say that the reason we did not have as many effects in the United States as we did in other places of the world was due to the good work of DHS and Jeanette Manfra's folks, in terms of making sure that they communicated quickly with the private sector and that the appropriate patching was taken.

So, it's information sharing. It's making sure we are sharing in the right way. It's helping them with vulnerability assessments and, overall, it's agreeing together what is critical and what is the best way that we can protect it together.

HATCH: OK. Continuing on this issue of cybersecurity, I'd like to ask about active defense which is sometimes inaccurately referred to as hacking back. Active defense is a term that captures a spectrum of proactive cybersecurity measures that fall somewhere between traditional passive defense and offense. Some commentators believe that active defense is inappropriate and that current legal restrictions on the practice are, therefore, warranted.

Others believe that active defense should be more widely available to the private sector. Now, I have two questions for you, first is, active defense a component of the department's current or planned cybersecurity assistance to the private sector?

NIELSEN: It is. Yes, sir. But as you say, there is a wide disagreement with respect to what it means. What we mean is, we want to provide the tools and resources to the private sector to protect their systems, so if we can anticipate are we aware of a given threat, and as you know, we've gone to great links this year to work with the Intel community to also include otherwise classified information, with respect to malware, bot nets, other types of infections. We want to give that to the private sector, so that they can proactively defend themselves before they are, in fact, attacked.

HATCH: OK. Second, do you believe that current law imposes any unnecessary constraints on the private sector's ability to deploy active defense?

NIELSEN: I would say that I would be happy to work with your staff. It is rather complicated, as you know. There's some limitations with respect to liability, there's other questions with respect to insurance and we do need to continue to work with the private sector to understand if there's any barriers that would prevent them from taking measures to protect themselves and the American people.

HATCH: OK. Turning to the department's counterterrorism efforts. A March 2017 report by the inspectors general of the DHS intelligence community and DOJ identified a series of concerns that the report authors concluded, quote, "Have made the DHS intelligence enterprise less effective and valuable to the intelligence community than it could be," unquote.

Can you provide an update regarding the department's implementation of the I.G. report's specific recommendations and any other changes the department has made in the way it shares counterterrorism information?

NIELSEN: Yes. I -- first of all, I'd just like to say I think that the inspector general plays a vital role, especially at a department such as DHS, with such a broad scope. So, it's certainly my intent to continue to work with the I.G.'s office and to track all of their recommendations and to make sure that we implement them. With respect to this particular report and the intelligence apparatus at DHS writ large, what we're looking to do is make our Intel more requirement-driven. In other words, what is it do the men and women on the front lines need and then let us look at how to gather and work with our Intel partners on collection to provide that information. We're well past a point where we can be responsive and defensive, if you will, after something happens.

We need to be able to gather that information to prevent, so it's moving towards a operational-based Intel posture that would be requirement-based on the threat.

HATCH: OK. Let me just say, for nearly 20 years, we've been talking about the DREAMer population, we've been talking about border security for just as long. It's time we did something and there is a lot desire among my colleagues to find a path forward to make a deal, if you would.

But to do that we need to be realistic to my Democratic friends and say, "It's time to stop pushing for a clean DREAM act." It's a matter of simple political reality, it's not going to happen. To my Republican friends, I say, we're not going to get the sun, moon and the stars, we should push for the best deal we can get, but we shouldn't let the perfect be the enemy of the good, so let's be realistic.

And I say, I well, my time is up, but I actually think that we can get this done. I hope that you will be helpful in doing so.

NIELSEN: Yes, sir. It not only is my great hope but I'd like to, again, reiterate I am happy to work with any member and every number who would like to work on this with the Department of Homeland Security. It is a very, very important issue.

HATCH: Thank you.

GRASSLEY: Senator Leahy?

LEAHY: Thank you.

Madam Secretary, welcome. I know seeing you here and again in Appropriations Committee. You mentioned a report you just issued, saying that foreign -- two individuals were convicted of terrorism since 9/11, and that they were foreign-born.

Now, most of them were convicted during Bush administration and the Obama administration, very few during this administration. How many of them -- does your report say how many of them came form countries subject to the travel ban and how long each of them had been in this country?

NIELSEN: I don't have that information on hand, sir. But as you say, you're right.