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At This Hour

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

Aired January 16, 2018 - 11:00   ET


[11:00:00] SEN. PATRICK LEAHY, D-VERMONT: -- 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. It is over a 15 year period, that one particular ...

LEAHY: Will you get to me how many of them, by the numbers, how many of them were foreign-born in a country subject to the travel ban and what was the amount of time they'd been here?

NIELSEN: Yes, to the extent that information is available, yes.

LEAHY: But it's all available. The number of convictions, you certainly should have number of where they were from and how long they have been here.

NIELSEN: Yes, sir. But oftentimes, as you know, what we might have is where they came from because that would be what their visa would indicate ...

LEAHY: I understand that ...

NIELSEN: So, yes. Within the data that we have, absolutely ...

LEAHY: I really would -- (inaudible) the convictions, when I was a prosecutor, they would have in the reports how long they've been here and what they were doing.

Now, last week at the Oval Office, President Trump reportedly said the most vulgar and racist things I have ever heard a president of either party utter.

In fact, I've never heard any president, Republican or Democrat, utter anything even similar. Now, he denies using the specific word and there has been some -- maybe he used a different word, maybe he didn't.

Now, Madam Secretary, you were in the room, you're under oath. Did President Trump use this word, or a substantially similar word, to describe certain countries?

NIELSEN: I did not hear that word used. No, sir.

LEAHY: That's not the question. Did he use anything similar to that describing certain countries? NIELSEN: The conversation was very impassioned, I don't dispute that the president was using tough language, others in the room were also using tough language.

LEAHY: Was he ...

NIELSEN: If I could, the concept and the context, I believe, in which this came up, was the concept that the president would like to move to a merit-based system. He would like to not and no longer look at quotas from countries ...

LEAHY: And then, did he use what would be considered vulgar language referring to certain countries?

NIELSEN: The president used tough language in general, as did other Congressmen in the room. Yes, sir.

LEAHY: The others aren't the president. You imply the president was articulating support for a merit-based immigration system like those in Australia or Canada. When he downgraded Haiti, El Salvador and Africa, a country where we are trying to have some ability to match China and others, in influence, he didn't say it was because we needed more Ph.D. students or skilled workers. He said, he wanted more people from Norway. Being from Norway is not a skill, and with the standard of living in Norway better than ours, you're not going to have too many people from there.

What does he mean when he says he wants more immigrants from Norway?

NIELSEN: I don't believe he said that specifically. What he was saying was, he was using Norway as an example of a country that is -- what he was specifically referring to is, the prime minister telling him that the people of Norway work very hard. And so, what he was referencing is, from a merit-based perspective, we'd like to have those with skills who can assimilate and contribute to the United States, moving away from country quotas and to an individual merit-based system.

LEAHY: Norway is a predominantly white country, isn't it?

NIELSEN: I actually do not know that, sir, but I imagine that is the case.

LEAHY: Now, the Obama administration focused its limited enforcement resources and everybody would have to admit -- enforcement -- the ability for enforcement is limited. You can't hit every single thing.

NIELSEN: That's correct.

LEAHY: He -- the Obama administration focused on those who posed public safety threats. President Trump has expanded those. Now, he has those who could be charged with a crime are a priority. That means, millions of undocumented immigrants are subject to removal. They are a priority for removal.

One of the things I learned as a prosecutor -- if everyone is a priority; nobody is a priority, because you can't do them all. In Texas, border patrol agents detained a 10-year-old girl with cerebral palsy on the way to a hospital for surgery; one hell of a threat she was.

In Ohio, the father and sole caregiver of a six-year-old paraplegic boy is facing deportation. Just yesterday, in Michigan, a man brought to this country at the age of 10 was deported after living here for over 30 years -- torn away from his wife and children who are U.S. citizens. He has never committed a crime and he pays his taxes every year.

Now, that's how we're using our limited-enforcement resources? Is it to strike fear in the hearts of everybody -- whether they've done something wrong or not, or they tell them they can be targeted at any time? I'm sure that 10-year-old girl with cerebral palsy is scared.

NIELSEN: Sir, first of all, I am not sure we would agree on the facts of that Texas case, but we're happy to meet with you and...

LEAHY: Fine. Submit the facts.

NIELSEN: I'm sorry?

LEAHY: Submit the facts under oath.

NIELSEN: She was not detained. We actually helped her and escorted her to the hospital and then turned her over to HHS.

But to your larger question, what we focus on in terms of enforcement priorities are those who have committed crimes and those with final orders of removal. Our statistics show that that is, in fact, what we're doing.

Last year, 92% of those that were arrested and taken into custody by ICE were criminals. So, I understand that there will always be exceptions. There's a lot of misunderstandings in the press. I'd be happy to work with you at any time if there is a case of concern to make sure that we understand.

LEAHY: On that -- we do ask questions of your department and on occasion -- on occasion we've gotten answers. Let's try to get answers to all of them.

Now, you know the president says he wants to build a big, beautiful wall, have Mexico pay for it. The president has promised Mexico would pay for it. Have we opened an account that Mexico can put the money in to pay for it? I'm sure the president wouldn't make that promise and not tell the truth. What arrangements do we have with Mexico to pay for it?

NIELSEN: Sir, as the Secretary of Homeland Security what I'm concerned about is getting the front-line...

LEAHY: Do you know whether we have arrangements with Mexico to pay for it?

NIELSEN: I know that we have arrangements with Mexico to secure our border.

LEAHY: Do we have arrangements with them to pay for the wall, as President Trump promised the American people they would do? That's an easy answer; yes or no.

NIELSEN: I am not aware. I don't know what you mean by arrangement. We have a lot of agreements with them to increase border security.

LEAHY: Are any of them to pay for a wall?

NIELSEN: How do you mean, pay, sir? Do you mean through fees? Do you mean through -- there's a variety of ways.

LEAHY: Well, usually when something is paid for you pay for it with money.

NIELSEN: I understand that. But I'm saying there are many ways to do that and collect that.

LEAHY: Are they paying for a wall? Are they paying for a wall?

NIELSEN: My priority is to increase border security and to build that wall, that will work. That's my priority, sir. That's what I'm focused on.

LEAHY: Well, let's then talk about that. CBP estimates that building a wall will result in taking land from 900 ranchers and other landowners in two Texas counties alone -- that's just two counties. And I'll insert that letter, Chairman, if I might, in the record.

GRASSLEY: Without objection, so ordered.

LEAHY: And what is your estimate of the number of eminent domain cases against ranchers and other American land owners that would be required in order to build a wall?

NIELSEN: Sir, the initial wall that we are building right now, as you know for this year, is replacement wall. I couldn't possibly give you how many people will decide in the future to have an issue with eminent domain.

LEAHY: Well, if you build a wall on the U.S. side of the border you have to create a no man's land between the wall and the Rio Grande River. How many acres of American land do we have to cede to Mexico to do that?

NIELSEN: What we'll have to do is look at the terrain, the traffic, the accessibility -- and you're right, we have to tailor the solutions for each part of the border to make sure that we don't have to do anything that's unnecessary. Whether that's additional land acquisition...

LEAHY: If we don't have an agreement with Mexico to pay for it and if, as many say, a wall is last century's technology, with that $18 billion, how many more CBP agents could you hire or TSA screeners to shorten lines at our airports which have become ridiculous in some places, or how many Coast Guard cutters could you build in order to rescue those at sea, interdict drugs and protect our ports?

NIELSEN: Sir, all I can tell you is that walls work. We have examples of that. We have documented data. And I don't know about anyone saying it's last generation's technology.

2006, as you know, we had a bipartisan agreement in the Secure Fence Act which Senators Obama, Clinton and Schumer all voted for so, I disagree that it's last generation's, last century's technology.

LEAHY: And parts of that wall was built.

NIELSEN: Parts of it were built.

LEAHY: (Inaudible) to do it. We're talking about a wall the length of our country.

NIELSEN: We're not. The president has made that clear.

LEAHY: I'm not going to play back a lot of his campaign speeches to you about a wall -- a great big, beautiful wall the length of our southern border, paid for by Mexico. I've heard a lot of promises in my decades here. I'm waiting to see this one fulfilled.

Thank you, Mr. Chairman, for the extra time.

GRASSLEY: I think, since you were at the same meeting I was at Tuesday, the president said 700 miles of additional wall.

NIELSEN: 722. Yes, sir. Initial down payment.

GRASSLEY: Senator Cornyn?

CORNYN: Thank you, Madam Secretary, for your willingness to take on what is probably one of the most difficult jobs in the United States government and that is the leadership of the Department of Homeland Security, but it's also one of the most important jobs in the U.S. government.

CORNYN: I want to continue the line of questioning from my -- send from -- friend from Vermont about the -- border security. It's no surprise to you that I come from a state that has 1,200 miles of common border with Mexico, and what we're talking about is what measures are going to be put into place to provide that border security, which my constituents all want. They want security.

NIELSEN: Yes, sir.

CORNYN: And so I have been struck by your use of the phrase "wall system" and just want to explore with you a little bit what you mean by that. One of the people that I've taken advice from is Rio Grande Valley Border Sector Chief Manny Padilla, who I believe you were with recently, who has told me that, in his vast experience in -- with the Border Patrol, that border security's composed of three elements.

He said infrastructure's important. You can call it a secure fence, as we did in 2006. You can call it a wall, as the president does from time to time. But it includes not only that infrastructure, but also technology and, of course, the Border Patrol agents to be able to respond to sensors when they get -- when they go off, or radar and the like.

Is that what you mean when you talk about a wall system, some configuration of those three components -- infrastructure, technology and personnel?

NIELSEN: Yes, sir. The president has asked us, as you know, to look at operational control of the border. The wall system, therefore, is infrastructure, as you describe, technology, personnel and, I would add, it's also closing those loopholes so that we can promptly remove those we interdict.

But, in general, we look at four main mission sets. So we look at impedance and denial, which is partly granted through that infrastructure. We look at domain awareness, which are the sensors, the cameras, et cetera. We look at access and -- access and mobility, so that the Border Patrol agents can respond to threats. And then we look at mission readiness, which is having that personnel that we need to be able to do the job.

CORNYN: Because of -- because of the impact to local communities in -- in Texas and elsewhere along the border, do you have any objection to consulting with local stakeholders as they try to come up with, perhaps, innovative solutions to deal with the border security challenge?

NIELSEN: It's an open invitation. The only way that we will be able to protect the border is by working with both state and local officials, as well as those land owners in private sector, so absolutely.

CORNYN: I was at the Rio Grande -- in the Rio Grande Valley on Friday and Saturday and Sunday, hunting the ever-elusive wild Texas quail. And I did happen to go over to the -- to a wildlife sanctuary on Friday, which is a unique tourist attraction, and one that's located within several hundred yards of the Texas border.

What I'm told there is that the smugglers, the transnational criminal organizations you alluded to before, do see that as a vulnerability. And so obviously we need to meet that challenge. And I know that Chief Padilla and others are working hard to do that.

But we also need to be sensitive to the concerns, I think, that the local community has about a huge economic element there, and something that -- we entertain a lot of folks from up north they call, affectionately, snowbirds down there. When it's cold up north, they come down south, and they're great. It's great for them. It's great for the economy. It's great for jobs.

So that would be one example of a -- of a need to work collaboratively with the local community and local stakeholders, as well as state and local officials, to come up with the right solution.

CORNYN: I remember, a few years back, in Hidalgo, Texas -- Hidalgo County, Texas, using that same local stakeholder input approach, we were able to come up with a win-win proposition. You're familiar with the levee wall.

NIELSEN: Yes, sir.

CORNYN: There was obviously a need to improve the levee system down there and protect property values and to make flood insurance affordable. But, in consultation -- I remember J.D. Salinas, who was the -- who was the county judge in Hidalgo, Texas -- they put a bond election on the -- on the ballot, and came up with a dual-use system, which actually provided that levee improvement, but also provided a wall in critical areas that the Border Patrol -- that they said they needed in order to slow down the flow of illegal immigration and drug trafficking and the like.

So that's just one example of what I consider a win-win proposition and where one size does not fit all. So I appreciate your willingness to work with all of us to come up with those kind of win-win situations, where possible.

Chief Padilla told me that the majority of people who are coming across the border and who are detained in the Rio Grande Valley sector are from Central America. I can't remember the exact percentage, but it's a high percentage, as you know.

And what these traffickers are doing is exploiting, as you point out, a vulnerability in our system. We passed the Trafficking Victims Protection Reauthorization Act years ago, in order to protect children from human trafficking. It's a highly worthy cause.


CORNYN: But the traffickers have now figured out that -- since children who come from Central America are treated differently than other people who enter the country illegally, they have found a way to exploit it. And I believe you mentioned that 90 percent of them who were notified of a future court hearing on their claim for asylum, for example, never show up. And that's a real glitch.

But I know there's been some attention paid -- not enough attention paid, in my view -- to the threat of criminal gangs that exploit this vulnerability, as well. I was told by Chief Padilla, again, that they're -- they have MS-13 gang members as young as 12 years old, and of course, from 12 to 17, you'd still qualify as a minor.

And let me ask, if border patrol identifies, by the tattoos or other signs on a -- on a -- somebody under 18, that they are likely a member of a criminal gang, are they permitted to detain them? Or are they required to treat them same way they would every other minor child, and place them with a sponsor, ultimately, and -- only to have them never show back up for their court hearing in the future? Are criminal gang members who happen to be minors treated any differently?

NIELSEN: Unfortunately, no. We have to treat them the same. We do, if we have that information, provide it to HHS, when -- of course, they have them once we turn them over to HHS.

But no, sir, it is a problem. We need to look at removability in general, to make sure that we can address this gang problem. We see gangs all the way up to New York recruiting illegal immigrants and children to come across the border for the purposes of joining MS-13.

CORNYN: I know, when we talk about unaccompanied children, people think about very young children...

NIELSEN: Small (ph)...


CORNYN: ... children of tender age. They don't think about a 17-year- old member of a criminal gang like MS-13, which is exploiting this very same vulnerability.

I have every confidence that you and the Trump administration is going to do what you say you're going to do, when it comes to border security. And it's -- I believe it's our responsibility as members of Congress to provide you the resources and tools and to make the appropriate changes in the law so that you can do what needs to be done.

I know there have been requirements for border assessments in the past, but do you have any objection to Congress, perhaps as part of this negotiated border security part of the DACA fix -- so-called -- mandating that the department come up with a plan that would provide for 100 percent situational awareness and operational control of the border?

NIELSEN: No, sir, I don't. I would encourage -- if you haven't had the opportunity to look at the border security investment plan that we recently provided, there's some detail in there. But, yes, on domain (ph) awareness, which is one of those four missions I mentioned, absolutely.

CORNYN: Well, I think it would be important to put that in the law, because, of course, when administrations change, different administrations have different priorities in terms of border security and the like.

And I'd like to make sure that the focus of this administration remains part of the congressional mandate and the law, and so would look forward to working with you on that.

I know that there's been some discussion of the DACA population, and certainly I, together with my colleagues on a bipartisan basis, want to find a solution for these young adults who came here as minor children and, through no fault of their own, find themselves in a dead end.

I do know that there was a court decision which created some confusion the other day, and it would -- it strikes me as wildly wrong to say that President Obama can create a program, and that President Trump cannot end it, because of -- certainly the executive authority would seem to be the same.

But do you -- can you tell us about the plans of the administration to appeal that, or otherwise how you plan to address it?

NIELSEN: Yes, sir.

Of course, the -- as the Department of Homeland Security, we defer to the Department of Justice, who, as you know, are looking at a variety of ways in which to respond to that.

What I can tell you is DHS is complying with the court order. We have begun to accept renewals for DACA. We are treating the program as pre- September of last year. So, if you are a current DACA recipient, you can currently reapply, while we're pending this court action.

GRASSLEY: Senator Durbin.

DURBIN: Thank you, Mr. Chairman.

Before I ask questions of the secretary, I'd like to ask the indulgence of the committee to introduce two guests that I have brought here today.

Alejandra Duran Arriola is a second-year student at Loyola University School of Medicine in Chicago. Alejandra, would you please stand?

Alejandra grew up in Savannah, Georgia. In addition to medical school, she volunteers at a clinic, educating uninsured patients about disease prevention. Her dream is to become an OB/GYN, working in underserved communities. She is protected by DACA.

Thank you very much, Alejandra, for being here.

Her future is in doubt. Without the protection of DACA, she does not have a legal permission to work in America. You cannot become a doctor without a residency. A residency is a job. If DACA is eliminated and her protection is eliminated and her right to work is eliminated, then her future as a doctor is in doubt.

John Magdaleno, would you please stand?

John came from Venezuela at the age of nine. In high school, he was the commander of the air honor society and Junior ROTC. He graduated from Georgia Tech, one of the best engineering schools in America, with a degree in chemical and biomolecular engineering with the highest honors. He now works as a chemical engineer. His dream is to serve in the United States military.

John, thanks for being here.

DURBIN: That's what this debate is all about. That's what DACA is all about. There's been a lot of talk about terrorists and threats to America. We stand as one; not as Democrats or Republican, but as one in saying, "Let's keep America safe," but, for goodness' sake, not at the expense of young people like the two I just introduced. That is what this conversation and debate is all about.

Madam Secretary, I hope you remember me. We were together at two meetings last week. I would like to ask you about one of those meetings. It occurred about noon on January the 11th. You were a few minutes late, I know, and asked forgiveness, but you were called at the last minute to come and attend.

Some things were said at that meeting which I believe we have to address today. People across the United States and around the world want to know what this president believes should be our priorities when it comes to immigration.

I'm going to ask you, as best you can, to recall what you heard the president say, when it came to those priorities. What do you remember the president saying about immigration from African countries to the United States?

NIELSEN: What I heard him saying was that he'd like to move away from a country-based quota system to a merit-based system, so it shouldn't matter where you're from, it should matter what you can contribute to the United States.

DURBIN: How did he characterize those countries in Africa?

NIELSEN: In -- I don't -- I don't specifically remember a category -- categorization of countries in Africa. I think what he was saying is, as far as best I could tell, and as you know, there were about a dozen people in the room. There were a lot of cross conversations. There was a lot of rough talk by a lot of people in the room. But what I understood him to be saying is, let's move away from the countries and let's look at the individual and make sure that those we bring here can contribute to our society.

DURBIN: Do you remember the president saying expressly, "I want more Europeans. Why can't we have more immigrants from Norway?"

NIELSEN: I do remember what he -- I do remember him asking about the concept of underrepresented countries as a fix.

This was in the conversation about removing the diversity lottery, and how we could reallocate that. And I do remember him asking if we do that, and we then assign those two countries that are unrepresented, aren't we just continuing non-merit based immigration?

So from that perspective, I think he did ask, would that cover European countries, or by its nature, would that mean that we are further establishing immigration to purposefully exclude Europeans?

DURBIN: What did the president say about immigrants from Norway?

NIELSEN: I heard him repeating what he had learned in a meeting before, that they are industrious, that they are a hard working country. They don't have much crime there. They don't have much debt. I think, in general, I just heard him giving compliments to Norway.

DURBIN: You said on Fox News that the president used strong language. What was that strong language?

NIELSEN: Let's see, strong language, there was -- I -- apologies, I don't remember a specific word. What I was struck with, frankly, as I'm sure you were as well, was just the general profanity that was used in the room by almost everyone.

DURBIN: Did you hear me use profanity?

NIELSEN: No, sir. Neither did I.

DURBIN: Did you hear Senator Graham use profanity?

NIELSEN: I did hear tough language from Senator Graham. Yes, sir.

DURBIN: What did he say?

NIELSEN: He used tough language. He was impassioned. I think he was feeling very strongly about the issue, as was everyone in the room. And to underscore a point, I think he was using some strong language.

DURBIN: Do you recall that the strong language he used repeated exactly what the president had said prior to that?

NIELSEN: I remember specific cuss words being used by a variety of members.

DURBIN: I'm not going to ask you to say those words here. But I will just say for the record, Senator Graham spoke up in a way that I respect very much, countering what the president had said about countries in Africa, reminding the president that his family did not come to America with great skills or wealth, but they came here as most families do; looking for a chance to prove themselves and make this a better nation.

In the defense of Senator Graham, his strong words repeated exactly the words used by the president, which you cannot remember.

Let me ask you another question...

NIELSEN: If I just could, sir, I -- I do want to say that I greatly appreciate not only Senator Graham's leadership, but yours as well. I know you're both very passionate about this. As you know, afterwards I approached you and asked that I'm happy to come talk to you anytime to try to work on this deal.

I do think that Senator Graham very impassionately described what he believed America is about, and what we should move towards. Yes, I agree with that.

DURBIN: Do you support a path to citizenship for DACA recipients and those who were in the DREAM Act?

NIELSEN: I think we have to find a permanent solution, yes, sir.

DURBIN: I hate that phrase, permanent solution. Do you support a path to citizenship?

NIELSEN: I believe, that as part of the discussion, and to make sure that we don't continue temporary populations that continue to exist, we should talk about that.

I'm not here to get in front of the president or any final decisions on that particular issue, but yes, I'm happy to discuss it.

DURBIN: Do you recall the president saying that he wanted $20 billion now, and he would build this wall within one year?

NIELSEN: I do remember him saying that. He was concerned that given the appropriations cycle, that any deal that we made now would be limited to this year's appropriation. I remember him asking, is there a way to authorize the full down payment of the wall, such that we could have assurances that we could in fact build it.

DURBIN: So, let's take a look at what your department has done, when it comes to building walls. As of December 6th, 2017, less than 1 percent of the $341 million appropriated for 40 miles of replacement funding had been expended.

Actual construction has yet to begin on money appropriated in the last fiscal year. So, is the president realistic when he says he wants $20 billion so he can build the wall in one year?

NIELSEN: I think the president is encouraging us to go as quickly as we can. As you know, it's a very complicated issue, building the wall, for a whole variety of -- a whole variety of reasons.

What we're doing right now is we are testing and evaluating those prototypes, and will continue to determine that not only the design, but what's best per some of the other Senators' comments, for any particular part of the border, because it will be different. We need a full tool kit.

DURBIN: Madam Secretary, the president made it clear in that meeting that one of the conditions for his assent, or agreement to protect DACA was $20 billion, so he could build this wall in one year.

The fate of John and Alejandra lies in the balance here. The president is insisting on something that is physically, legally impossible as a condition for him to give them a chance to be here in the United States legally.

[11:30:00] Now, you've seen, because you commented on it on Fox News, the proposal, which Senator Graham and I, as well as four other Senators have -