House Panel to Subpoena Homeland Security for Information on Illegal Immigrants

July 10, 2009: A Guatemalan illegal immigrant prepares to board a plane at the Phoenix-Mesa Gateway airport during his deportation process. (Reuters)

The House Judiciary Committee, in a rare move, is planning to subpoena the Department of Homeland Security for information about illegal and criminal immigrants whom the department has declined to deport.

A subcommittee on the panel voted 7-4 on Wednesday to authorize the subpoena, which Chairman Lamar Smith, R-Texas, is expected to issue later this week. It would be the first subpoena issued by the committee since it came under GOP control.

Smith and other Republican lawmakers want the department to provide detailed information about the thousands of immigrants who are flagged but not arrested or deported through a program known as Secure Communities. Smith had given the department an Oct. 31 deadline to provide the information voluntarily.

"The administration is obviously not acting in good faith and is wrongfully trying to keep crucial information from the American people," Smith said in a statement. "They are on the verge of obstructing the legitimate role of Congress."

Homeland Security spokesman Matthew Chandler said in response that the department does not need to be subpoenaed in order to comply.

"DHS has stated to the committee it would provide the data requested without being compelled by subpoena to do so. DHS is in the process of gathering the data and will provide it when complete," Chandler said in a statement.

Secure Communities is a program that allows federal immigration officials to check the names and fingerprints of suspects booked at federal, state and local jails against their immigration databases.

Smith raised concerns about those illegal immigrants who were not being pursued by Immigration and Customs Enforcement.

A Congressional Research Service report released in October showed the department had flagged 318,000 people through the program, while arresting 73,000. Smith said in an August letter to Homeland Security Secretary Janet Napolitano that between October 2008 and April 2011, ICE had more than 536,000 matches -- but took about 227,000 of them into custody, while deporting about 109,000.

Smith asked for a list of all "low-level criminal immigrants" who were looked over in the course of Secure Communities.

ICE originally wrote back to Smith and said it would take at least two weeks to compile the information. Then in late October, Homeland Security Assistant Secretary Nelson Peacock wrote a letter explaining to Smith that many of the immigrants whose names show up in their system through Secure Communities are legal and would simply not count as a "removable alien."

He said naturalized U.S. citizens or legal permanent residents could show up, and that ICE would not take somebody into custody if they are already serving time for a criminal offense.

"In that circumstance, even though the alien will ultimately be removed by ICE, his or her removal would not yet appear in the statistics related to Secure Communities as the removal cannot occur until the individual's criminal sentence is complete," he wrote. Peacock provided statistics similar to those cited by Smith in his August letter, without giving information on individual identities.

But Smith is also inquiring about the program at a time when the Department of Homeland Security is changing the way it approaches deportation cases. ICE has authorized officials to use "prosecutorial discretion" to prioritize violent criminals and other serious offenders for deportation, while potentially giving lower-level illegal immigrant offenders a pass.

Chandler said ICE's approach is "enhancing public safety" across the country, resulting in the total removal of 216,000 criminal aliens in fiscal 2011 -- an increase of 89 percent over 2008.

"DHS has implemented immigration enforcement priorities that focus limited resources on convicted criminals, repeat immigration law violators, fugitives and recent entrants," he said.