RICHARD J. DURBIN

ILLINOIS

ASSISTANT MAJORITY LEADER

Jeh Johnson Partner

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November 6, 2013

Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, NW Washington, DC 20006-1047

Dear Mr. Johnson:

COMMITTEE ON APPROPRIATIONS

COMMITTEE ON FOREIGN RELATIONS

COMMITTEE ON THE JUDICIARY

COMMITTEE ON RULES AND ADMINISTRATION

Thank you for meeting with me in my office last week regarding your pending nomination to be Secretary of Homeland Security. I appreciated the opportunity to exchange views on immigration policy. I write to follow up on two issues that we discussed.

Deferred Action for Childhood Arrivals

I commend President Obama and former Secretary of Homeland Security Janet Napolitano for establishing the Deferred Action for Childhood Arrivals (DACA) program, which gives a select group of young people who came to the United States as children the chance to request a deferral of deportation. So far, this historic initiative has given more than 450,000 individuals the chance to come out of the shadows and live and work legally in the country they call home.

In July 2012, I asked then-Defense Secretary Panetta to authorize the enlistment of DACA recipients into the U.S. Armed Forces. Under 10 U.S.C. §504, the Defense Department can authorize the enlistment of non-citizens when it is "vital to the national interest." I believe that enlisting DACA recipients is vital to the national interest because it would allow the Armed Forces to access a well-qualified, educated, diverse, homegrown talent pool. DACA recipients, by definition, have good moral character, and are well-educated and integrated into American society. Many have shown an interest in and aptitude for military service through participation in Junior Reserve Officers' Training Corps (JROTC).

In July 2012, while you were serving as Defense Department General Counsel, I spoke with you about my request to authorize the enlistment of DACA recipients. You conducted a legal review and concluded that the Defense Department could not authorize the enlistment of DACA recipients as a class, but rather only on an individualized basis in certain narrow circumstances. As we discussed last week, I do not agree that the "vital to the national interest" standard is limited in this manner. There is no statutory definition or legislative history on the meaning of "vital to the national interest." I have consulted with military law experts who believe it is entirely in the discretion of the Defense Department to determine whether it is "vital to the national interest" to enlist DACA recipients as a class.

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1. Please explain what you will do, if confirmed, to ensure that the implementation of DACA continues to proceed smoothly and that as many eligible individuals as possible are able to request DACA. Will DACA implementation be a priority for you as Homeland Security Secretary?

2. In 2014, the first DACA grants will begin to expire. What will you do to ensure that individuals who wish to request an extension of DACA are able to do so expeditiously and affordably?

3. At my request, the Defense Department is currently reconsidering whether and how to authorize the enlistment ofDACA recipients. Will you commit that, if you are confirmed, you will work with the Defense Department to ensure that the broadest possible class of DACA recipients is able to enlist?

Deportations

In the past, some Department of Homeland Security (DHS) officials have argued that Congress appropriates sufficient funds to remove approximately 400,000 people each year, and that DHS is therefore obligated to remove 400,000 people each year. Partly as a result of this position, the Administration will surpass 2 million deportations in the near future. As I told you, I have seen firsthand the suffering caused by these deportations during my visits to immigration detention centers in Illinois.

To be clear, Congress has not established a deportation quota. There is no statutory mandate for DHS to deport a particular number of people on an annual basis. Moreover, aiming for an arbitrary quota or numerical deportation goal is not smart enforcement policy. Rather, DHS should prioritize the quality of deportations over the quantity by focusing its limited resources on undocumented immigrants who have been convicted of serious crimes or pose a threat to our national security.

Senior Administration officials have made statements consistent with this view, and John Morton, then-Director oflmmigration and Customs Enforcement (ICE), issued a memo on June 17, 2011 establishing new prosecutorial discretion guidelines. However, these priorities are not sufficiently reflected in DHS's policies and practices. While ICE's prosecutorial discretion guidance lists several positive factors that "should prompt particular care and consideration," these do not include low-priority cases such as individuals who are parents of U.S. citizen children or who have long resided in the United States. ICE has reportedly exercised prosecutorial discretion in only 7% of cases in the immigration court backlog. In Fiscal Year 2012, 45% of removals were of individuals who had not been convicted of any crime. Of those with criminal convictions who were removed, many had only committed minor, nonviolent infractions, such as traffic offenses. Perhaps most troubling, the Administration has deported more than 200,000 parents of U.S. citizen children.

4. Will you commit to ensuring that DHS does not use any deportation quotas or other numerical deportation goals?

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5. Will you work with ICE leadership to ensure that ICE agents are exercising prosecutorial discretion by focusing on high-priority cases of serious criminals and national security threats rather than low-priority cases? In particular, will you commit to reviewing ICE's prosecutorial discretion guidance to determine whether the list of positive factors should be expanded and whether illegal reentry and other immigration violations should be removed from the list of negative factors?

6. Will you commit that, if you are confirmed, you will visit immigration detention centers on a regular basis, and make immigration detention reform a priority during your tenure as DHS Secretary? Among the issues that require your immediate attention are: (1) the use of solitary confinement; (2) access to lawyers and social services; (3) screening and treatment for those with mental illness; (4) sexual assault prevention; and (5) detainee access to phone calls.

Thank you for your time and consideration. I look forward to your response.

Sincerely,

Richard J. Durbin U.S. Senator