March 08, 2017

Sen Harris Presses DHS Deputy Sec Nominee Duke on Immigration Enforcement and Priorities

HD Video of Sen Harris 1st Round of Questioning

HD Video of Sen Harris 2nd Round of Questioning

WASHINGTON, D.C. - Today, Senator Kamala D. Harris, a member of the Homeland Security and Governmental Affairs Committee, participated in a hearing on the nomination of Elaine Duke to serve as Deputy Secretary of the Department of Homeland Security. Senator Harris questioned Duke on DHS' enforcement priorities, following concerns Harris has heard from constituents about DHS' immigration enforcement operations. At the hearing, Harris reproduced the list of seven categories that DHS Secretary Kelly outlined to his agencies that could lead to enforcement actions, including deportation.

Brief exchange below:

HARRIS: You have said many times including at least three times in this hearing that you have limited resources, we all do, and so we have to make priorities and triage in many situations. So will you tell me please of these seven categories, which you believe to be the most important with your limited resources?

DUKE: The most important is the people that have been criminal, it's subcategory one.

HARRIS: Ok, and where do you put in this hierarchy the third one, those who have committed acts which constitute but obviously there has been no legal action, where would you put that in your list of priorities?

DUKE: I believe these are, if you will, loosely in descending order. I think the main effect of that memorandum is to not exempt any categories that currently are under the current law passed by congress.

HARRIS: So it is your opinion that these are listed in descending order of priority?

Recent reports have highlighted how Immigration and Customs Enforcements (ICE) agents have misled local law enforcement about immigration arrests, and feel emboldened by this administration to conduct mass deportations.

Senator Harris also urged Duke to have DHS Secretary Kelly reconsider their proposal of separating women from undocumented children at the border.

Harris said, "I would urge you to urge the Secretary to think of this from the context, to the Chairman's point, to the details of what this would look like on the ground. For example, if a family appears at the border, and of those children with that family are nursing babies, what will the policy be as it relates to that nursing baby and that mom? If a family arrives at the border and among those children are toddlers who are potty-training, what will the policy of the department be as it relates to the separation of those children from those parents? What will the policy of the department be if they arrive at the border and a child is sick and needs comfort to be able to sleep through the night from his mother? What will the department's policy be? Because those are very real scenarios."

A full transcript of Harris' remarks is below:

Round 1 Questioning:

KDH: Thank you, Mr. Chairman, on the topic of immigration I request unanimous consent following that two items be entered into the record, one is a transcript from a hearing that I held in Los Angeles, a forum on the topic of immigration, the second is a letter from the Coalition for Immigration Rights, for Human Immigrant rights of Los Angeles, discussing how the President's executive action has instilled fear in immigrant communities.

Chairman: Without objection.

SEN HARRIS: Thank you. Ms. Duke, thank you for your many, many years of service, and thank you to your family for allowing you to reenter. I have several questions of you. You have, in your questionnaire and in your interviews, resonated with me several points that you have made in terms of principles that you hold to be important, including that we have good relations, that government have good relations with the people that we serve, and that there is trust between government and the people that we serve. Your comments suggest to me that you also prioritize transparency and consistency in the way that we do our work as government officials, so I thank you for that. So on that point, I will tell you based on the discussions I have had, the forums I have held, many of my constituents need clarity on the decisions that have been made through the executive order and the memos that have been issued by the Department of Homeland Security and so I have for you right now a poster that my staff created of General Kelly's confirmation hearing, can you see it from there? It's a bit small. Basically he talked about his highest priorities and mentioned that he would create priorities in terms of who would be deported and who would be the focus of ICE and CBP. And then the memorandum from February 20th lists 7 categories, and in those categories we see that we have 1. People who have been convicted of crimes, then it goes on to say people who have been charged but have not been convicted or found to be guilty, it goes on to mention people who have committed acts which constitute a chargeable offense, and then other factors including seven those that in the judgement of an immigration officer, otherwise pose a risk to public safety or national security.

You have said many times including at least three times in this hearing that you have limited resources, we all do, and so we have to make priorities and triage in many situations. So will you tell me please of these seven categories, which you believe to be the most important with your limited resources?

DUKE: The most important is the people that have been criminal, it's subcategory one.

HARRIS: Ok, and where do you put in this hierarchy the third one, those who have committed acts which constitute but obviously there has been no legal action, where would you put that in your list of priorities?

DUKE: I believe these are, if you will, loosely in descending order. I think the main effect of that memorandum is to not exempt any categories that currently are under the current law passed by congress.

HARRIS: So it is your opinion that these are listed in descending order of priority?

DUKE: Yes.

HARRIS: And will you issue a memo, then, to your department, if confirmed, that that is exactly the case, that this is in descending order of priority?

DUKE: I think that......

HARRIS: Because there is no clarity right now, in terms of what folks on the ground are supposed to do as their priority for who they will pick up, who they will detain.

DUKE: I will commit that if there is continued lack of clarity that we will have more clarity. I know that ICE was issuing a memo that is not issued yet, and I can work with you on making sure that has the clarity so that you can explain it your constituents in a way and show them that is the way it understands, but there is still that prioritization.

HARRIS: And I'll most emphasize that it's most important to my constituents that officials in the department explain it to the troops on the ground. How would you, then, direct an officer in the field to assess number 3, which is someone, who, again is, may have committed an act which constitutes a chargeable offense. How would you train and direct an officer on the ground on number 7, which is in the judgement of that officer an individual poses a risk to public safety or national security? How would you train on that point.

DUKE: Both number three, number three also requires judgement. And all our law enforcement officials, whether they are federal, or state, or local have to have judgment. They have the federal law enforcement training where they learn that, they both practice law enforcement and in the federal...

HARRIS: But they need to be trained on specific factors that they should consider and that's the way that we actually evaluate if they are exercising good judgment or not, would you agree?

DUKE: Yes...

HARRIS: So you do know if that training has been planned for those officers so we can ensure that they are in fact exercising good judgement?

DUKE: Yes, that is part of their law enforcement training.

HARRIS: Has that been issued since February 20th, as it relates to these seven factors?

DUKE: I do not know, at this time. I can get back to you as to whether there has been incorporation into the training specifically.

HARRIS: Please do. Then on February 17th there was a memo issued by acting CBP Commission Kevin McElnan, which indicates that to meet the hiring goals of the executive order there would have to be 15,000 new officers, that we would have to lower CBP hiring standards. As you probably know, during a hiring surge at the department between 2006 and 2012 there were a lot of unintended consequences which required then that Congress in 2010 mandate that the CBP use polygraph testing to blunt the infiltration of the agency by drug cartels. However, it is my understanding that now as part of the need to hire 15,000 new officers, there is a suggestion that the polygraph testing would not occur. Do you agree with that?

DUKE: We will not lower standards to do that.

HARRIS: What about the polygraph testing?

DUKE: I am not familiar with it, I know there was discussion over whether it is necessary or not.

HARRIS: Do you believe that the polygraph testing should remain intact in order to ensure that we keep the hiring standards so that we can ensure that those officers exercise good judgment?

DUKE: I don't have enough data to be honest Senator, to comment on that, but I will look into it if confirmed, immediately.

HARRIS: So in your many years of service with the department you don't have information about the efficacy of a polygraph test in the hiring of these officers?

DUKE: Yes, I know the polygraph has efficacy but is there a degradation in workforce if it is eliminated, I do not have that data.

Harris: Ok. Thank you.

Round 2 of Questioning:

HARRIS: Ms. Duke, I would like to return to the decision, apparently, that the Department has made about separating children with their parents. Do you know when this is supposed to take effect?

DUKE: It is not a decision, the Secretary, I talked to him personally about it. He considers it still a possibility. They are looking a wide range of deterrents, and it was raised as a possible method of deterrence, but there is no decision made and there is no implementation plan currently.

HARRIS: So let's think of this as an opportunity for the public to weigh in before they make a decision. I would urge you to urge the Secretary to think of this from the context, to the Chairman's point, to the details of what this would look like on the ground. For example, if a family appears at the border, and of those children with that family are nursing babies, what will the policy be as it relates to that nursing baby and that mom? If a family arrives at the border and among those children are toddlers who are potty-training, what will the policy of the department be as it relates to the separation of those children from those parents? What will the policy of the department be if they arrive at the border and a child is sick and needs comfort to be able to sleep through the night from his mother? What will the department's policy be? Because those are very real scenarios that all of us who have parented a child know to be very real and can be very traumatic if not taken into account in terms of the effect on those children and those families when we are leaving it up to whoever is from CBP and ICE there to make the decision and their best judgment if they have not been given clear guidance and training on that issue. So I would urge you to pass this on to the Secretary, and also in your capacity as number two of that department if confirmed, to require that everyone be very clear about what this will mean, and be very clear about the details in terms of the training and the protocols and the policy. And as you know, the American Academy of Pediatrics has issued a statement in opposition to the practice of separating children from their parents particularly in these kinds of cases because of the longstanding, potentially lifelong trauma that results to those individuals. And it can be the parents as well as the children.

Back to the issue of the hiring standards. I believe this to be an issue that is connected with all that we need to do in terms of trust, as we discussed before, trust of government. I also believe it to be directly related to the morale of the good men and women of the department. Because, you see, bringing in 15,000 new officers without appropriate vetting will be a morale issue for the entire department, and in particular for those who came in when the standards were high and were trained and brought into the field understanding their mission and respecting the power they have. So I would urge you to be very clear in your role of leadership, if confirmed, that we cannot compromise for the sake of building up the forces as has been directed through the executive order. Because there will be many, I guarantee it, as someone who has worked in law enforcement my entire career, many unintended consequences, which will also include a public perception that the department is not run well and cannot be trusted. And that will indeed be something that is, I think, an unintended consequence, but very dire, in terms of the goal of the department and the important goals of the department in terms of securing our country and national security. And it will also be an officer safety issue.

So on this point, back to the issue of polygraph testing, what will be your position going into the department if this is on the table, as something that the department is considering eliminating, in order to process people quickly to reach that goal of 15,000 new officers?

DUKE: Senator, I commit to you, I think we have a meeting in about a week, I will go back and I will look at that specific issue. I have not been involved, nor have I looked at the rationale behind the possibility of eliminating the polygraph, and I will be prepared either in a question for the record or in our meeting to answer that specifically.

HARRIS: Ok, I appreciate that, thank you.

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