HEARING OF THE SENATE HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS COMMITTEE
SUBJECT: THE NOMINATION OF JULIE L. MYERS TO CONTINUE AS ASSISTANT SECRETARY FOR IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), DEPARTMENT OF HOMELAND SECURITY
CHAIRED BY: SENATOR JOSEPH LIEBERMAN (I-CT)
WITNESS: JULIE MYERS, NOMINEE
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SEN. CLAIRE MCCASKILL (D-MO): First I want to recognize that you have great roots in Missouri and we claim the area over on the other side of the line in the Kansas City area as part of the greater Kansas City region --
MS. MYERS: (Laughs.)
SEN. MCCASKILL: -- so I recognize that you're like someone from a part of the country that I care very deeply about.
I also know that your husband is -- you're struggling with a young child and the two of you having big jobs in different places, and I appreciate the sacrifices your family is making in that regard. Having been in your position, having young children, with a very big job, I know that it's really hard, and I know your family has to be there for you. So please tell them for me that I appreciate the sacrifice they're making in the name of public service.
MS. MYERS: Well, thank you, Senator.
SEN. MCCASKILL: I notice in your statement and I notice the rhetoric coming out of Homeland Security that you have targeted the magnet of illegal employment as an important of your strategy. How many employers spent a day in jail for hiring illegal immigrants in the United States of America?
MS. MYERS: Senator, I can't tell you that. Our statistics are tracked based on criminal and civil convictions, so we look at criminal convictions of all types from worksite enforcement and administrative convictions of all types. I will tell you that this year so far we've had over $30 million in criminal fines and forfeitures. Compare that to the last (full ?) year of the INS, when it was only $600,000.
SEN. MCCASKILL: Well, I'm -- how many employers does that represent, the $30 million?
MS. MYERS: Senator, I can't tell you that at this time. I'd be happy to get back to you. I can tell you that in the last several weeks, you know, almost every week we've had an instance where we've indicted a manager or convicted a manager at one level or another. But I sense from your question that you have frustration in this area, and I will tell you that I agree with you on targeting egregious employers, getting U.S. attorneys to take those cases, in order to really kind of make a difference there.
I believe we're starting to see a shift. Those cases, like many federal criminal investigations, do often take longer than the agents would like to kind of bring them to conclusion and to then see kind of a final disposition. Bottom line is that we're looking to change behavior, and I think that we are seeing some very positive things just by the way of examples of large companies changing their business behavior, changing their practices to stop employing illegal aliens.
SEN. MCCASKILL: I got to tell you, I've spent a lot of time as a prosecutor, and I don't buy it. It is, I think, outrageous, that you would come to a confirmation hearing in front of the United States Senate and not know how many employers in this country have been criminally prosecuted. The idea that you're keeping statistics that are lumping together the immigrants that you're arresting in the workplace with the employers is masking the fact that this has not been a priority and continues not to be a priority.
I know, for example, that 537 people in Missouri were charged last year for kids using IDs in bars. Now, think about the similarity. I can imagine these employers are going to say, "Well, gosh, all kids look about the same age," and "Gosh, fake IDs are so good," and "Gosh, you know, all these fake IDs, how to expect us to be accountable for figuring out who has a fake ID and who doesn't?" But yet 537 employers in Missouri were charged last year for fake IDs for people who were trying to have a drink, and yet we can't tell the American people how many employers have spent a day in jail?
It is, in fact, a major failure that anyone would think that the statistics of the immigrants that are arrested in the workplace translate to actions against the employer. And I have read every word that you have said and written about this, and everything is anecdotal. Is it possible for you to go to Justice -- you were in charge of the Criminal Division at the Justice Department. You worked with all the U.S. attorneys.
Isn't it possible to pick up the phone and ask the U.S. attorneys or send an e-mail to the U.S. attorneys for them to forward every example of an employer that spent a day in jail for hiring illegal immigrants in the United States of America?
MS. MYERS: Senator, I certainly understand your concern. I will tell you what is not anecdotal is the amount of criminal fines and forfeitures against employers -- $30 million against those employers -- and that we're taking steps each and every day to make progress.
I share your frustration with respect to individuals that spend a day in jail. Obviously that does reside in the Justice Department, in the judges that make a determination of how long individuals will be sentenced.
With respect to our statistics, the way we try statistics is through the type of investigation, be it work site, money laundering, drug cases and the like, and the kind of charge it is, if it's a criminal charge or if it's an administrative charge.
SEN. MCCASKILL: But you understand there is a major difference between an illegal immigrant who is trying to get a job to feed his family and an employer who repeatedly and knowingly hires people with bad papers. And trust me, we make much more difficult cases in this country. The prosecutors in this country are up to this task.
If they get direction from on top that this is a priority, trust me, the prosecutors can make these cases. They can prove that that employer knew that that was a ridiculous Social Security number, that they knew that that Social Security number had been used five times by various employees in their facility.
The employers of this country can be deterred. They are not being deterred now because I am not convinced, just by virtue of the way you keep statistics, that it's not a serious issue with this department.
MS. MYERS: Senator McCaskill, I certainly, you know, appreciate your concern. What I'm telling you is that I think we have made substantial progress. There's no doubt that there are many more steps that we need to take. I think we are seeing changes.
I will tell you that we separate administrative arrests. So when you talk about people who just are working in an institution and they're illegal, those are administrative arrests. Those arrests are kept separate than all criminal arrests. We do believe that it's a significant case. It's a problem when there are aliens who are working who are using the identities of real U.S. citizens and causing those U.S. citizens harm, or when there are criminal aliens who are subject to 8 USC 1326 or other violations that they are causing this country harm.
SEN. MCCASKILL: I'm --
MS. MYERS: One of the things that we often look to do -- I'm sorry, Senator.
SEN. MCCASKILL: That's okay. I'm out of time, and I don't -- but I'm hopeful -- can we do another round?
SEN. LIEBERMAN: (Off mike.)
SEN. MCCASKILL: Great. Okay, I'll be back. Thank you.
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SEN. MCCASKILL: Thank you, Mr. Chairman. I too want to ask for forgiveness, and if it appears that I'm being hard on you, I apologize. I just am tremendously frustrated with the failure of this administration to prioritize employer enforcement. And I don't sense, since no one's bothering to even keep the statistics, that that has changed much. And even though you can cite, anecdotally, some cases, and you can cite a number -- I believe the number is 716 arrests last year total?
MS. MYERS: That's 716 criminal arrests, 3,667 administrative arrests.
SEN. MCCASKILL: I want to focus on the criminal arrests. That's 716 criminal arrests, that includes people who have made fraudulent documents that you've charged with a crime.
MS. MYERS: If they're encountered through the course of a worksite enforcement investigation, we do -- we conduct a lot of other -- I've had a fraudulent document investigations that are alone, that are -- would not be counted under the Worksite Enforcement Code.
SEN. MCCASKILL: But that also, the 716 includes all the illegal immigrants you arrested at George's Chicken in Missouri, correct? That would include that number?
MS. MYERS: No, it would include --
SEN. MCCASKILL: The five that pled guilty.
MS. MYERS: The five that pled guilty -- well, they wouldn't be included in the FY '07, but yes, the five that pled guilty would be included in that. The immigrants, the illegal aliens that were arrested on administrative charges only would not be included in the criminal count.
SEN. MCCASKILL: Okay. But if George's had occurred in the previous year, the five immigrants who pled guilty to being illegal would have been included in that 716 number?
MS. MYERS: That's right. That's right, Senator.
SEN. MCCASKILL: And nobody from George's -- the company has been charged?
MS. MYERS: The investigation is continuing.
SEN. MCCASKILL: I keep seeing the word -- in fact, I asked GAO about it when they were here when we were talking about how well Homeland Security is doing -- that you all go after "egregious" employers. But I'll tell you, nobody can tell me what the definition of egregious is.
GAO says your definition of egregious is it has to be an employer who has committed other criminal acts as well as hiring illegal immigrants. And then we get an answer from someone else at your department that there's a different definition of egregious. Does anybody know what qualifies as egregious?
MS. MYERS: Senator McCaskill, an egregious employer is an employer that has, as their business model, hiring illegal aliens. We often see with egregious employers that they commit other crimes, such as money laundering, because they're paying everyone in cash to hide it; you know, or tax evasion, or other sorts of things. But the commission of other crimes is not necessary for it to be an egregious employer.
I will tell you that we meet at headquarters -- our headquarters team, led by Marthie Foreman (sp) and Kevin Sibley and others -- direct investigations, and we're targeting the employers. And so if there's no employer liability or rampant identity theft that harms you as citizens, that is not a case that is pursued.
And I would just mention one thing that is frustrating for us is the amount of time that sometimes it takes to then bring a case against the employer. And I'll just give -- with respect to the Swift and Company, enforcement action as an example. Although we charged the human resource manager in this case, that was actually seven or eight months after the initial part of the case which had revealed that, you know, a number of individuals were stealing the identifies of U.S. citizens.
But it --
SEN. MCCASKILL: But I want to make it clear, though, that -- how quickly do these cases go, and whether or not they're prioritized is completely within the discretion of this administration. That's the call of the attorney general of the United States and the Justice Department, in cooperation with Secretary Chertoff and your department. And the idea that we got 716 total criminal cases in an entire year, when we've got 12 million illegal immigrants, most of which are going to work every day, is not success. That is just simply not success. And frankly, there's nothing in the law that says it has to be part of the business plan. You all just decided egregious means part of the business plan.
Let me use the example of Senator Voinovich -- you know, and this is a really good example he talked about. That employer did the right thing. That employer knew that something was fishy with those people whose Social Security numbers didn't match. And you're right, most employers in the country are doing the right thing, and it is tremendously unfair to them that that same person who bought that business, and realized he didn't have papers for 125, thought to himself, "I don't need to do anything, because you know what? I'm never going to spend a day in jail.
"Maybe there will be some administrative hassle -- maybe, if they catch me, which by the way would be like winning the lottery."
I mean, you understand that, you know, we're talking about, you know, if you add together shark attacks and deaths attributed to lightning and Powerball winners, we're talking about the categories of actually facing serious criminal prosecution for hiring illegal immigrants.
I just -- I hope you take from this hearing that -- and hope you do not take it personally -- but if somebody can't tell me how many employers in this country have been criminally charged for looking the other way, just like those bar owners who looked the other way with that obvious fake ID -- if somebody can't tell me that number between now and the time we vote on this confirmation, I can't vote for it. I need to know that you all care enough to be able to keep the statistic how many employers are being held accountable.
MS. MYERS: Well, Senator McCaskill, I certainly share you concern, and I really appreciate the support that you're bringing to us to charge employers and to hold them -- and to hold them accountable and to hold them accountable on crimes that will actually result in jail sentences and so they will not end up with mere slaps on the wrist as was kind of the previous practices.
You know, I believe that our methods of using criminal and civil as a rational basis -- rational way for the (techs ?) system to operate, but we certainly will work with you to provide you whatever information that we need.
And I think your continued support, frankly, not only of this agency but of the Department of Justice to bring these cases and prioritize these cases -- we do occasionally feel that these cases are not prioritized as much in other places as we would like. And so I think --
SEN. MCCASKILL: I will tell you, I think if you get them in front of juries, I think you're going to be shocked how they're prioritized. And I'm willing to bet there hasn't been more than a handful of jury trials on this since you took this job with a recess appointment. And I, you know -- having done an awful lot of courtroom work in front of juries, I will tell you the American people want the playing field leveled and they want us to turn the corner on this problem. And we will never turn the corner with more people on the border, with more roundups, with more detention facilities. The only way we're going to turn the corner on this problem is if employers in this country realize they're going to be held accountable for hiring illegal immigrants. And so, far they're not worried.
MS. MYERS: Well, Senator McCaskill, I would say that we -- I do believe that we are seeing a difference with our three-part strategy of focusing on critical infrastructure, targeting egregious employers and encouraging compliance; that we are -- we are doing things.
We realize we will never have enough agents to conduct an I-9 inspection at every business in this country, and that's why the administration has done things such as the promulgation of the no- match rule to give employers the kind of guidance that we believe they need in order to figure out what they should do when they receive a no-match letter. We have to create a culture of compliance within companies. I think our limited actions have started to take that. I think you're going to continue to see some good results, some record fines, and hopefully some record prison sentences, as well.
SEN. MCCASKILL: Okay. I'll be obnoxiously attentive to it.
MS. MYERS: Great. Thank you, Senator.
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