(CNSNews.com) -- Homeland Security Secretary Janet Napolitano told the Senate Judiciary Committee on Wednesday that under the administration’s policy of exercising “prosecutorial discretion” in the enforcement of the immigration laws, her department is currently authorizing some illegal aliens to work in the United States.
Sen. Charles Grassley (R-Iowa), the ranking member of the Judiciary Committee, asked Napolitano: “According to the information from your department, some individuals who are given relief will obtain work authorizations. So people with no right to be in the country will be allowed to work here. Is that correct?”
Napolitano said: “Well, senator, since around 1986 there has been a process where those who are technically unlawfully in the country may apply for work authorization. This goes to CIS [Citizenship and Immigration Services]. It's not an ICE [Immigration and Customs Enforcement] or CBP [Customs and Border Protection] function. And those cases are reviewed by CIS in a case-by-case basis. So there’s no change in that process. Like I said, that goes back to the mid-80s that is contemplated now.”
Sen. Grassley then asked, “But yes, some of them could have an opportunity to work here even though they are here illegally?”
“Well, that happens now, senator,” said Napolitano.
The three agencies she mentioned are all components of DHS.
Although Napolitano did not specify what 1986 policy she was referring to in her response to Sen. Grassley, President Ronald Reagan signed the Simpson-Mazzoli Act into law in November of that year. The act applied to illegal aliens who requested a change of status within 18 months of the law's passage and who had come into the United States prior to Jan. 1, 1982, and had resided in America since that time.
According to the latest figures from the Department of Labor, the national unemployment rate is 9.1 percent and the number of unemployed persons has reached at least 14 million.
In a June 17 memo, ICE Director John Morton ordered federal immigration officials to use "prosecutorial discretion" in deciding which illegal aliens to remove from the country.
The purpose of the “prosecutorial discretion” policy is to remove the worst offenders while releasing others, particularly victims of domestic violence and other crimes; witnesses to crimes; or people who are charged with minor traffic violations.
“Exercising favorable discretion, such as release from detention and deferral or a stay of removal generally will be appropriate,” Morton said, unless the unauthorized alien poses national security concerns, has a “serious criminal history,” poses a threat to public safety, is a human rights violator or is involved in “significant” immigration fraud.
During Wednesday’s hearing, Napolitano mentioned that as a result of the “prosecutorial discretion” policy, the Obama administration will review “roughly 300,000” cases that are on the “master docket of what’s pending in immigration courts.”
“The goal” of that process is “to administratively close some of the low priority cases so that we can facilitate handling the higher priority cases,” said Napolitano. That indicates that some illegal immigrants will be allowed to stay in the country because their cases will be closed.
Although she did not rule out the possibility, Napolitano said that “absent unusual circumstances,” individuals with a final order of removal will not be eligible for relief once their case is reviewed.
The review process is intended “for cases that are pending that are clogging up the docket and preventing us from getting to the higher priority cases,” said Napolitano.
In defending the “prosecutorial discretion” policy, she told the Senate committee, “We can just remove anybody without any priorities and that would be one way to do it. Or the other way and the better way … is to say we want to focus on expediting the removal of those who are criminals; of those who are fugitives; of those who are repeat violators; of those who are recent entrants meaning within five years into the United States,” all of whom she referred to as “high priority” cases.
“At some point in the process there needs to be decisions made about who is to be removed,” she said. “It cost in the neighborhood of $23,000 to $30,000 to actually remove somebody. That’s our cost, [it] doesn’t include Justice Department cost. The Congress gives us the ability to finance removals of 400,000 people a year.”
Napolitano pointed out that an “interagency group” is currently working on how to go about reviewing the estimated 300,000 cases. A “pilot” approach to reviewing the cases will start in “two to three weeks,” she said.
“The pilot is not going to be one of these 6-to-12 months typical pilots,” she added. “It will be very short, and it’s designed to find logistical issues that happen when you’re trying to do (a) massive review of lots of cases all at the same time.”
On Tuesday, the Obama administration announced that it removed a record 396,906 individuals in fiscal year 2011, which ended on Sept. 30. That number is about 3,000 below the 400,000 immigrants that congressionally allocated resources allows DHS to remove.
The nearly 397,00O illegal aliens removed in fiscal 2011 includes 216,698 (55 percent) individuals who were convicted of felonies or misdemeanors.
In the course of today’s hearing, Sen. Grassley and Sen. Jeff Sessions (R-Ala.) accused Napolitano of inflating the numbers.
Napolitano subsequently acknowledged that the fiscal 2011 removal numbers include immigrants deported in fiscal 2010. The reason for that, according to the secretary, is that DHS waits until the individual is verified to have left the country before counting them as a removal.
Secretary Napolitano did not specify how many of the FY 2011 removals were from FY 2010.
However, Sen. Sessions said, “I’m told that ICE carried over from last year 19,000 removals and they’re counting them this year, and it’s sort of a gimmick to making the removals look higher than they are.”