[Senate Hearing 109-65]
[From the U.S. Government Publishing Office]
S. Hrg. 109-65
THE NEED FOR COMPREHENSIVE IMMIGRATION REFORM: STRENGTHENING OUR
NATIONAL SECURITY
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP
and
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 17, 2005
__________
Serial No. J-109-20
__________
Printed for the use of the Committee on the Judiciary
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_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Immigration, Border Security and Citizenship
JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
James Ho, Majority Chief Counsel
Jim Flug, Democratic Chief Counsel
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois
Stephen Higgins, Majority Chief Counsel
Steven Cash, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 17
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 40
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 43
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 15
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 13
prepared statement........................................... 49
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 55
WITNESSES
Hutchinson, Asa, Chair of the Homeland Security Practice,
Venable, LLP, former Under Secretary for Border and
Transportation Security, Department of Homeland Security,
Washington, D.C................................................ 6
McCain, Hon. John, a U.S. Senator from the State of Arizona...... 14
Reed, Mark K., Border Management Strategies, LLC, Tucson, Arizona 11
Stock, Margaret D., American Immigration Lawyers Association,
Associate Professor of Law, Department of Law, U.S. Military
Academy, West Point, New York.................................. 9
SUBMISSIONS FOR THE RECORD
Hutchinson, Asa, Chair of the Homeland Security Practice,
Venable, LLP, former Under Secretary for Border and
Transportation Security, Department of Homeland Security,
Washington, D.C., prepared statement........................... 45
McCain, Hon. John, a U.S. Senator from the State of Arizona,
prepared statement............................................. 57
McNary, Gene, Doris Meissner, and James W. Ziglar, Sr., former
Commissioners of the Immigration and Naturalization Service,
Washington, D.C., joint letter................................. 60
Reed, Mark K., Border Management Strategies, LLC, Tucson,
Arizona, prepared statement.................................... 62
Stock, Margaret D., American Immigration Lawyers Association,
Associate Professor of Law, Department of Law, U.S. Military
Academy, West Point, New York, prepared statement.............. 66
THE NEED FOR COMPREHENSIVE IMMIGRATION REFORM: STRENGTHENING OUR
NATIONAL SECURITY
----------
TUESDAY, MAY 17, 2005
United States Senate,
Subcommittee on Immigration, Border Security and
Citizenship, and the Subcommittee on Terrorism, Technology
and Homeland Security, of the Committee on the Judiciary,
Washington, D.C.
The Subcommittees met, pursuant to notice, at 2:40 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
Chairman of the Subcommittee on Immigration, Border Security
and Citizenship, and Hon. Jon Kyl, Chairman of the Subcommittee
on Terrorism, Technology and Homeland Security, presiding.
Present: Senators Cornyn, Kyl, Sessions, Coburn, Kennedy,
and Feinstein.
Also Present: Senator McCain.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. This joint hearing of the Senate
Subcommittee on Immigration, Border Security and Citizenship
and the Subcommittee on Terrorism, Technology and Homeland
Security will come to order.
Let me please first advise our witnesses and everyone
present who is interested in the hearing that we have a little
bit of an erratic schedule because of votes, and so we may have
to get started and then take a recess. So if you will just bear
with us, we will plow on ahead, and we do want to hear what you
have to say and be able to ask questions and get your responses
to those questions on the subject matter of the hearing.
First let me say how much I appreciate Senator Specter for
scheduling today's hearing. This is the first in a series of
hearings to examine the need for comprehensive reform of our
immigration system. I want to thank Senator Kyl, who chairs the
Terrorism Subcommittee, for his hard work and leadership on
these issues as well.
We announced a few weeks ago that he and I are working to
identify and develop solutions for the critical problems that
confront our immigration system. I want to also thank the
Ranking Member of this Subcommittee, Senator Kennedy, as well
as Senator Feinstein, the Ranking Member of the Terrorism
Subcommittee, as well as their respective staffs for working
with our offices to make this hearing possible.
Any effort to reform and strengthen enforcement of our
immigration system, to be successful in the Senate, must be
bipartisan, and I look forward to working with both of them and
all of our colleagues to that end.
Our Nation's immigration and border security system is
badly broken. It leaves our borders unprotected, threatens our
national security, and makes a mockery of the rule of law. The
system, notwithstanding the efforts recently to try to improve
the situation, has suffered unfortunately from years of
neglect, and in a post-9/11 world, we cannot tolerate this
situation any longer.
National security demands a comprehensive solution to our
immigration system, and that means both a stronger enforcement
and reasonable reform of our immigration laws. We must solve
this problem, and we must solve it now.
For too long, the debate over immigration has divided
Americans of good will into two camps: those who are angry and
frustrated by our failure to enforce the rule of law, and those
who are angry and frustrated that our immigration laws do not
reflect reality. But both camps, in my view, are right. This is
not an either/or proposition. We need stronger enforcement and
reasonable reform of our immigration laws.
First, we must recognize that in the past we have simply
not devoted adequate funds, resources, or manpower to enforce
our immigration laws and to protect our borders. That must
change and it will change. No discussion of comprehensive
immigration reform is possible without a clear commitment to
and a substantial and dramatic escalation of our efforts to
enforce the law. That is why these two subcommittees have
embarked on this series of hearings over the last 2 months
devoted exclusively to the topic of strengthening enforcement
of our Nation's immigration system, at the border, between the
ports of entry, and in the interior of our Nation. These
hearings have shown that the men and women who operate our
immigration system work hard and do their best, and we
appreciate their dedication.
But our border inspection and security system at the ports
of entry is still full of holes. Our deployment of manpower and
the use of technology to secure the border between the ports of
entry is inadequate. And our deportation process is
overlitigated and underequipped.
So we need stronger enforcement, but enforcement alone will
not, in my view, get the job done. Nor will our immigration
system be fixed by merely throwing money at the problem. Our
laws must be reformed as well as enforced.
Any reform proposal must serve both our national security
and our national economy. It must be both capable of securing
our country and compatible with growing our economy. Our
current broken system provides badly needed sources of labor
but through illegal channels, posing a substantial and
unacceptable risk to our national security. Yet simply closing
our borders would secure our Nation only at the expense of our
economy. Any comprehensive solution must, in my view, address
both concerns.
Our hearing today will examine the national security
justifications for immigration reforms. Of the more than 10
million people currently in our country without legal status
and of the hundreds of thousands who enter each year
undetected, some fraction of the population may harbor evil
impulses toward our country. Yet it is a practical
impossibility to separate the well-meaning from the ill-
intentioned. We must focus our scarce resources on the highest
risks.
Law enforcement and border security officials should focus
their greatest energies on those who wish to do us harm, not
those who wish only to help themselves and to provide for their
families by working. We cannot have a population of more than
10 million people within which terrorists and their supporters
can easily hide. And we cannot have that population afraid to
cooperate with law enforcement and anti-terrorism efforts.
Next week, the Senate will examine the economic
justifications for immigration reform. Our economy would badly
suffer if we removed millions of workers from our national
workforce, just as it would suffer if we eliminated entire
stocks of natural resources from our national inventory. Our
economy would be strengthened if all workers would simply come
out of the shadows, register, pay taxes, and fully participate
in our economy.
President Bush has taken the lead and articulated a vision
for the comprehensive reform of our Nation's immigration laws
in the interest of our Nation, our national security, our
national economy, and the rule of law. I am heartened that in
recent months we have seen growing recognition and consensus
across the political spectrum that a comprehensive immigration
solution is long overdue. Along these lines, Senator McCain and
Senator Kennedy have introduced an immigration reform measure.
I also understand that Senator Hagel will be introducing his
proposal in the near future as well. And Senator Kyl and I
recently announced on the Senate floor that we will introduce
comprehensive legislation that will strengthen enforcement,
control our borders, and reform our Nation's immigration laws.
I look forward to the critical role that these
Subcommittees will play in the coming congressional debate on
these various proposals, and as Chairman of this Subcommittee,
I will work with the disparate voices together to attempt to
craft a comprehensive consensus solution. This is a complex
problem, and no one has a monopoly on good ideas.
I want to reiterate that solving our immigration and border
security problems should not be an either/or proposition. We
are a Nation of laws and a Nation of immigrants. We need an
immigration system that serves our national security and our
national economy as well as our national commitment to the rule
of law. We must strengthen enforcement of the law, but we must
also enact laws that are capable of that strong enforcement.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
With that, I want to turn the floor over to Senator Kyl.
Senator Kyl, I explained that we are in a series of votes here,
so we are doing the best we can to move the hearing along. But
we will, I am sure, have some coming and going, maybe a short
recess. But I will turn the floor over to Senator Kyl at this
time, then to Senator Kennedy and Senator Feinstein when they
arrive, for any introductory remarks they may have.
Senator Kyl?
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. Thank you very much, Senator Cornyn.
The two Subcommittees that you see here represented of the
Judiciary Committee are the two that primarily are concerned
with the border security issues, the homeland security issues,
terrorism as it might be associated with it, and generally
immigration policy. The subject of the hearing today--The Need
for Comprehensive Immigration Reform: Strengthening Our
National Security--really could focus entirely on the national
security requirements of good immigration laws.
Let me just mention one aspect that has not been fully
reported on that illustrates the need for that, but I gather
from the list of witnesses here that there will not be a great
deal of discussion on that, except perhaps to some extent by
Asa Hutchinson, but that we will be discussing different
elements of an immigration policy.
In my State of Arizona, on the Barry M. Goldwater Gunnery
Range, there is today a significant degradation of our military
capability in especially the training missions of the Marine
Corps and the Air Force because of illegal immigration. That
range is the premier range for training of pilots--and I might
mention all of our pilots in Afghanistan and Iraq today trained
over that range--because of its similarity in terrain to much
of the Middle East and also because it has wide open spaces for
these aircraft to do their training missions.
Despite the Marine Corps' best efforts at controlling the
western part of that gunnery range, going in to move out
illegal immigrants who they detect in the area, over 1,100
hours last year of training time was lost, over 400 missions
had to be aborted just on that part of the range because of the
later discovery of illegal immigrants in the vicinity.
Obviously, nobody wanted to pursue the mission with the
possibility that someone could be injured.
That is very expensive when you have got planes gassed and
loaded on the runways getting ready to perform their mission,
or in the case of--there is actually film footage of planes
going down to perform their mission, only to have the camera
detect people running in the vicinity of where they are going
to perform their missions, and the planes, of course, have to
pull up and go around or simply go back to base.
Our ability to train our pilots that we are putting in
harm's way in Iraq and Afghanistan is, therefore, being
adversely impacted by illegal immigration. This is just one of
the many ways in which illegal immigration imposes burdens upon
our society. This cannot be allowed to stand, and it is one of
the reasons why, I believe, that the first effort to move
toward a broader immigration reform must be to gaining control
of our borders. And this means a comprehensive effort to fund
the personnel and technology on the border, putting more
immigration investigators in the interior, funding their
efforts as well, providing greater detention capacity, more
legal staff to represent the United States in administrative
and judicial immigration proceedings, allocations to
investigate and prosecute those that have engaged in fraud,
funding to speed the immigration process of persons who have
obeyed the law legally and want to enter the country. And I
think that the experts have testified, and I am very interested
to hear Mark Reed as an expert testify about this as well.
The Border Patrol Chief in the Tucson sector where over
half of the illegal immigration in the country is occurring
today has said that the border--he said, ``Leave no doubt, the
border can be controlled. It simply requires the allocation of
resources to get the job done.'' And he said there is no magic
bullet. We know what works. We simply need more of that in
order to get the job done.
So I reject the notion that the border cannot be
controlled, and we have simply got to live with the idea of
inhibitions on military training, the possibility of
terrorists, the 80,000 or so serious criminals that enter the
country each year--well, those are the number apprehended. The
number that enter may be well above that.
But we can create legal mechanisms to allow the labor in
this country that we need and cannot fulfill from American
citizens or other legal residents without doing damage to the
rule of law. Indeed, we have got to do whatever hiring is done
within the rule of law so we can benefit the American economy
without harming U.S. workers, I believe, to provide
opportunities for guest workers to do work in the United States
that needs to be done. But I think there will only be an open
mind to considering such legislation if the American people
know that we are committed to enforcing the law--and that means
all of the law--and I think it also means a greater effort on
the part of the countries from whom these laborers will come to
work with us in developing the processes for adequately
documenting the people from their countries who come here to
work and agreeing to the prompt return to those countries of
people who have completed their temporary work in the United
States.
That is a tall order, but, Mr. Chairman, I agree with you
that this is something we have got to do before the end of this
year. We have got to tackle it. There is much that can be done,
and like you, I am interested in hearing the views of our
witnesses here today.
Chairman Cornyn. Thank you, Senator Kyl.
We are pleased to have a distinguished panel with us today.
I will introduce the panel, and I will ask each of them to give
their opening statements.
Asa Hutchinson joins us today. Mr. Hutchinson is currently
a partner at the Venable law firm here in Washington, D.C. Of
course, prior to that, Mr. Hutchinson was confirmed as the
Under Secretary of Homeland Security in January 2003, shortly
after the Department was created.
At the Department of Homeland Security, he was responsible
for managing and coordinating the overall security of U.S.
borders and transportation systems, setting immigration
enforcement policies and priorities, and developing and
implementing visa security programs.
Before that, he headed the Drug Enforcement Administration
and before that was elected to the United States Congress and
before that served as a U.S. Attorney in Arkansas. He brings a
wealth of experience to this hearing, and we are thankful for
his appearance here today.
Joining Secretary Hutchinson is Professor Margaret Stock.
Professor Stock is an assistant professor at the United States
Military Academy at West Point, New York. Before joining the
faculty there, she was in private practice where she
specialized in the field of immigration law. She is also a
member of the American Immigration Lawyers Association and a
frequent speaker and consultant in the field of constitutional,
military, national security, and comparative law. We welcome
you as well, Professor.
Also joining us today is Mark Reed. Mr. Reed is founder of
the consulting firm Border Management Strategies. Before
creating this firm, Mr. Reed retired from the Immigration and
Naturalization Service after a distinguished 27-year career.
During his career he had the distinction of serving as the
regional director in Dallas, Texas, supervising all districts
and Border Patrol sector operations in 18 States. Before that,
he held a number, of executive positions, including serving as
a district director, a San Diego, California, deputy director
of the El Paso Intelligence Center, and the regional director
for anti-smuggling at San Pedro, California.
Welcome to all of you. We are privileged to have such a
distinguished panel that brings such a broad base of practical
experience in these issues. We would be happy now to hear your
statements, and if you would please limit your statements to 5
minutes, then we will continue in a question-and-answer format
and hopefully get to all the material.
With that, let me recognize Asa Hutchinson for his opening
statement.
STATEMENT OF ASA HUTCHINSON, CHAIR OF THE HOMELAND SECURITY
PRACTICE, VENABLE, LLP, FORMER UNDER SECRETARY FOR BORDER AND
TRANSPORTATION SECURITY, DEPARTMENT OF HOMELAND SECURITY,
WASHINGTON, D.C.
Mr. Hutchinson. Thank you, Mr. Chairman, Senator Kyl. Thank
you for your opening statements.
From the standpoint of someone who has worked on border
issues over the last two decades, I cannot recall any time that
our Nation has been so focused on border security. I think this
is the result of the concerns raised by the 9/11 Commission, a
continuous flow of medical reports on our borders, and, of
course, the devastating attack on 9/11 itself. In addition, the
President raising the level of debate by initiating his
proposal has resulted in a national debate that is timely, that
is very passionate, but it is also very necessary. The
decisions we make now will have an impact on our border
security for years to come.
You have to start with the proposition that in order to be
effective in the war against terrorism, our Nation must be able
to secure its borders. In fact, this proposition is the
foundation of the Department of Homeland Security, and it is
also the key founding principle of President Bush's reform
proposal. Congress has appropriated over $1 billion in
developing an effective entry-exit system for our foreign
visitors in the last 3 years. This program is US-VISIT. Upon
completion, it will be the most effective border system in our
history guarding against illegal entry at our ports of entry.
But that investment will be undermined if we do not develop
complementary strategies for controlling the illegal flow
across our vast land borders. To do so would be similar to
posting a watchman on the gangplank of a ship but ignoring
those coming over the side of the ship.
The necessary elements to tackle this enormous problem
effectively are: first of all, increasing the funding of
technology and security personnel along the border; secondly,
making it more difficult for illegal aliens to get jobs in this
country; and, thirdly, providing a workable and practical means
for migrant workers to have access to job opportunities in this
country when these jobs cannot be filled otherwise. When and
only when these security measures are established, then it is
appropriate to have a conversation on providing a temporary
legal status to the 8 million plus illegal workers already in
this country. It is a significant vulnerability to allow such a
large population to live and work anonymously in our
communities, with no legal identities or other common
connections to society. In fact, it is a terrorist's dream.
Moreover, any legal status should be a temporary work permit
with a point of return to the alien's home country.
So we must examine our immigration policy from a
comprehensive perspective, as this Committee is doing. Without
a credible enforcement plan along with the funding necessary to
execute that plan, any temporary workforce initiative is bound
to send the wrong message.
Let me elaborate on these elements.
It is impractical to discuss border security without
putting an emphasis on emerging technologies. The Department of
Homeland Security, for example, has emphasized and developed
the America Shield Initiative that integrates new technologies
with increased numbers of Border Patrol agents. This initiative
is the right strategy for border security, and it is built upon
the Arizona Border Control Initiative that resulted in a
combination of unmanned aerial vehicles to sophisticated ground
sensors, resulted in increased apprehension rates of 47
percent.
The Department is continuing to build on this successful
strategy. Presently the 2005 budget provides $64 million for
the America Shield Initiative, and the war supplemental
provides additional agents. This is a good start, but in the
long term it will have to be substantially increased. To make
this effort successful in controlling our borders, there needs
to be accelerated funding of the technologies and specific
funding of an oversight program office within DHS similar to
the US-VISIT program office that oversees the taxpayer's
investment. Congress has acted with a sense of urgency in
funding additional Border Patrol agents, but the technology
tools for these agents are essential for accomplishing a long-
term, cost-effective strategy.
The effort at border security must look beyond our borders.
It does little good to apprehend illegal aliens if there is no
sufficient detention space, and the detention costs will be
excessive if there are not judges and attorneys to process the
cases. And pressure needs to be applied to other nations to
streamline the repatriation of the aliens. The opportunity for
jobs in the United States is a great incentive for those who
consider illegal entry. If the economic opportunity is combined
with ineffective enforcement and removal, then the magnet for
illegal entry almost becomes too powerful to resist. A chief
objective of any border control strategy must be to reduce the
power of the magnet that draws illegal workers.
Any immigration reform proposal must include a greater
investment in workplace enforcement. Employers must be abe to
verify the legal status of job applicants; they should report
to the Government the temporary workers they hire and advise
the Government of any who leave employment. This system would
allow a closer tracking of individuals in the system and will
result in better enforcement of immigration laws. There are a
number of existing systems that serve as a useful model that
can be implemented in this fashion.
Another critical tool in border security is expanding the
use of expedited removal in the circumstances where there are
no issues of asylum or similar exceptional circumstances. This
administration should be complimented and recognized for using
expedited removal in the Tucson and Laredo sectors along the
Southwest border, but more needs to be done. Budgetary
constraints have limited the expansion of expedited removal
along the border.
Let me conclude by just saying that the following factors
have to be in place to be successful in reducing illegal entry.
First of all, the chance of apprehension has to be greater
than two-thirds. There are indications that we are approaching
this goal in some areas of the border.
Secondly, if apprehended, the removal to country of origin
must be speedy with little chance of release pending a court
hearing.
Thirdly, if the alien avoids apprehension and removal, then
the chance of finding an employer that will accept your illegal
status must be unlikely.
And, fourthly, there has to be a meaningful way to legally
apply for temporary work authorization in the United States and
for the family to go back and forth during that time of
employment.
I have emphasized the need during my testimony of effective
immigration enforcement, but obviously we have to continue the
opportunity for immigrants in our society.
In Arkansas, I was fortunate as a Member of Congress to
watch the growth of the immigrant population in our State. They
have added greatly to the culture, economic growth, and values
of my State. I was able to encourage the former INS to add an
office in Fort Smith to better serve the immigrant population,
but also an enforcement office in Fayetteville to more quickly
respond to the needs of law enforcement. It takes both, and I
am grateful for this Committee trying to achieve the right
balance.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hutchinson appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Hutchinson. We appreciate
your testimony as well as your service to the country in this
important area, and we look forward to your continued
assistance to us as we try to craft the right solutions to the
problems.
Professor Stock, we would be glad to hear your opening
statement.
STATEMENT OF MARGARET D. STOCK, AMERICAN IMMIGRATION LAWYERS
ASSOCIATION, ASSOCIATE PROFESSOR OF LAW, DEPARTMENT OF LAW,
U.S. MILITARY ACADEMY, WEST POINT, NEW YORK
Ms. Stock. Senator Cornyn, my name is Margaret Stock, and
as you know, I am an associate professor in the Department of
Law at the United States Military Academy at West Point, New
York. However, the opinions I am expressing today are my own
and not the opinions of the Department of the Army, the United
States Military Academy, or the Department of Defense.
These hearings are long overdue and much needed. Today's
hearing could not be more important nor timely. We must
acknowledge the connection between comprehensive immigration
reform and our national security, and the fact that our
national security depends on comprehensively reforming our
immigration laws. Until now, we have focused on border and
interior enforcement, but we simply cannot effectively reform
our immigration laws or enhance our security with an
enforcement-only approach. Neither can we ensure our security
by focusing solely on a guest worker program. A guest worker
approach by itself inadequately addresses the systemic problems
with our immigration laws, and an enforcement-only approach is
doomed to failure because it is unworkable and far too
expensive for too little in return.
My testimony will emphasize the three things that are
important and critical for necessary immigration reform. First,
we need comprehensive immigration reform that addresses the
situation of people living and working here by allowing them to
earn the opportunity to obtain permanent status. The estimates
vary on how many illegal immigrants there are present in the
United States, but the figures run from 8 to 20 million. The
vast majority are relatives of U.S. citizens or lawful
residents or workers holding jobs that Americans do not want.
Those people need an opportunity to come out of the shadows and
regularize their status.
Second, immigration reform must include a break-the-mold
worker program. Current laws do not meet the needs of our
economy or workers. A break-the-mold program would allow the
diminishment of illegal immigration by creating a legal avenue
for people to enter the U.S. and return, as many wish, to their
countries, communities, and families.
Immigration reform, third, must reunify families. Legal
permanent residents often wait up to 20 years to reunite with
their family members. Such long separations make no sense in
our pro-family Nation.
Neither a simple guest worker program that includes an
option to adjust nor a work and return program in and of
themselves can be considered comprehensive reform. Both
programs ignore the significant problems in the current system,
namely, those who are residing now inside the United States but
do not have lawful status, and families who must endure lengthy
separations. It is unrealistic to assume that significant
numbers of undocumented people, illegal immigrants, will step
forward and register for a program with at the end of the day
would force them to leave their families and their jobs and go
back to a country for a very long and unknown period of time. A
program that includes no real possibility for people to earn
permanent resident status will not generate full participation.
People will simply choose not to participate or take the risk
and go back into the shadows if the laws do not change before
the time period of the program expires.
It is also unrealistic to assume that families will endure
separation. To enhance our security, we need immigration laws
that acknowledge the needs of American business, reunite
families, and allow us to find out who is living in the United
States. Both the guest worker program alone, with the
possibility of adjustment, and a work and return type approach
fail on those counts. Immigration reform that legalizes hard-
working people already here and that creates a new worker
program will help the U.S. Government focus resources on
enhancing security, not on detaining hard-working people who
are filling vacancies in the U.S. labor market or trying to
reunite with close family members.
In addition, an earned adjustment program will encourage
people to come out of the shadows and be scrutinized by our
Government. A new worker visa program will create a legal flow
through which people can enter and leave the United States. The
legality that results from these initiatives will contribute to
our national security by helping to focus resources on those
who mean to do us harm. Such legality also will facilitate
enforcement efforts. Enforcing a dysfunctional system only has
led to more dysfunction, not better enforcement.
As I believe you are aware, a recent survey of likely
voters in March 2005 showed that 75 percent of likely voters
favor a proposal that includes the things I have just talked
about.
The recently introduced Secure America and Orderly
Immigration Act is a bipartisan comprehensive reform bill that
would take a giant step toward reforming our immigration laws
and enhancing our security.
Given the complexity of the law in this area, the broken
status quo, and the fact that whatever reforms are enacted will
impact on our security, proposals that are introduced in the
future must reflect the kind of reform I have discussed.
In closing, I would like to emphasize a couple of things.
In my written testimony, Senator, I have said there are a
number of particular issues that should be looked at in
legislation that shall be proposed. Our focus should be not
merely on keeping people out--that is the wrong approach--but,
rather, on letting the right people in. That is the key to our
national security. If we do not have comprehensive reform, we
will not be able to enhance our security and our enforcement
initiatives will fail.
I want to end completely by focusing on one issue where we
went the wrong way. The REAL ID Act recently enacted has ruled
out the possibility of using State Department of Motor Vehicle
databases as a source of information about the illegal or
undocumented migrant population in the United States. Thus,
REAL ID will make it harder to enforce our immigration laws,
not easier, and I point out that the DMV databases have been
enormously useful to ICE and other enforcement agencies in
their efforts to enforce immigration law.
Comprehensive immigration reform that allows illegal
immigrants to come out of the shadows and be identified will
enhance our security and improve the data on those who are
present in the United States.
Thank you very much.
[The prepared statement of Ms. Stock appears as a
submission for the record.]
Chairman Cornyn. Thank you very much, Professor Stock.
Mr. Reed, we will be glad to hear your opening statement.
STATEMENT OF MARK K. REED, BORDER MANAGEMENT STRATEGIES, LLC,
TUCSON, ARIZONA
Mr. Reed. Thank you. Thank you for inviting me to share
some of my experiences over the past 30 years. I am here today
to embrace the concept that comprehensive immigration
enforcement strategy must be an essential component of our
national--
Chairman Cornyn. Mr. Reed, I cannot tell whether your
microphone is on. Is the light on?
Mr. Reed. How about now?
Chairman Cornyn. Excellent. Thank you.
Mr. Reed. I am here today to embrace the concept that a
comprehensive immigration enforcement strategy must be an
essential component of our national and economic security
strategies. For the record, I believe that our borders can be
secured with existing technology and resources. I am not
talking about using the military. I am talking about
integrating current capability and initiatives into a
comprehensive and cohesive plan. Continued efforts to showcase
a piece of the solution while ignoring other essential
components of the problem will not work, is inherently
dishonest, and in today's world, dangerous.
Over the decades, our border strategies, exacerbated by
inadequate funding and conflicted policy, now provide great
cover for anyone to unlawfully enter this country, remain here,
and do us harm. The border is porous. Alien-smuggling networks
are well established and prospering. Millions of people are in
this country illegally with false identities. Identity fraud
has exploded with the proliferation of document vendors in
virtually every community. It is easy to enter this country
unlawfully, gain a false identity, and move openly among us
without threat of detection. It took us a long time to dig this
hole, so let me drop back for a moment in time.
Almost 20 years ago, our first President Bush declared a
war on drugs. I was present at a high-level strategy meeting
regarding the urgency of sealing the Mexican border to stop
drug smuggling by sending the military to the border. When DOD
stated that they were capable of detecting and interdicting any
intrusion but could not distinguish between groups of migrants
from drug smugglers until interdiction, the dialogue became
difficult. When DOD refused to entertain the idea that they
should only detain drug smugglers upon interdiction and let
everybody else go, the meeting was abruptly terminated. The
safety valve that illegal immigration provided toward the
stability of Mexico seemed to be a more compelling national
security priority than drug smuggling.
This event clearly points to larger binational issues with
our neighbors in Mexico and Canada. It also contains two other
important messages about our Nation's historical lack of
commitment toward border enforcement as part of the solution.
First, DOD said that they could provide the technology and
resources to detect any intrusion along the Mexican border.
Almost two decades later, the Border Patrol still cannot
``see'' most of the border. Detection is fundamental to any
border security strategy.
Second, this call to arms to secure the borders occurred
shortly after sweeping legislation to legalize millions of
undocumented workers, coupled with a ``strong'' enforcement
package that was not funded and not comprehensive.
Our current border strategy is based on terrain denial
tactics. This strategy was designed to gain control of one part
of the border at a time, adjust resources to maintain control,
and then expand to another segment of the border.
Purportedly, the Government's original intent was a
measured march from one end of the Mexican border to the other,
one step at a time until the entire border was secure. The
strategy also ha depth. It was supposed to be backed up by
parallel efforts to attack alien-smuggling corridors and an
aggressive worksite enforcement effort to attack the magnet of
jobs. But it turned out to be a piecemeal effort. Resources to
attack the corridor never materialized, and worksite
enforcement resources dwindled into virtual non-existence. The
marching strategy was abandoned. The strategy was modified to
focus on quality-of-life issues at border communities and
border safety without resources to address the gaps and flanks
within and around existing operations. As a result, border
crossers were forced into the clutches of alien smugglers
because easy and safe passage through border communities had
become difficult.
Alien smugglers, as part of a continuing enterprise,
criminal enterprise, often pass smuggled aliens over to
document vendors who are prepared to create false identities
for the purpose of defeating employer verification procedures,
which brings us to worksite enforcement, a key to our success.
The great majority of people illegally entering this country
are coming for jobs. When we remove the incentive to enter the
country illegally, the overwhelming number of people crossing
the border will drop. Enforcement capabilities will soar.
Pressure on schools and hospitals will be relieved. And
criminal populations in our jails will diminish.
But the Nation is conflicted. I refer you back to Operation
Vanguard that was launched against the meat-packing plants in
Nebraska a few years ago. The Government demonstrated the
absolute ability to effectively bar employment of unauthorized
workers in any sector in the country with minimal resources.
Using the border strategy model of terrain denial, intent was
declared to engage one entire industry every year until
unauthorized employment was barred nationwide. Vanguard was
shut down after 3,500 people fled the meat-packing industry
during the first 30 days of the operation.
Similar accounts of detention and criminal alien
enforcement vendors that would work but are not allowed to
work, as well as conceptually valid models like Basic Pilot
that could work but have never worked, are many and are
provided in my written statement for the record. They are
included because those programs are also an essential component
of a comprehensive strategy.
Thank you.
[The prepared statement of Mr. Reed appears as a submission
for the record.]
Chairman Cornyn. Thank you, Mr. Reed.
We have been joined by a number of our colleagues, and as I
explained, our voting schedule may require some of us to come
and go. But let me please give an opportunity to Senator
Kennedy, as the Ranking Member of the Immigration Subcommittee,
and then to Senator Feinstein, as Ranking Member of the
Terrorism Subcommittee, to make any opening remarks they would
like to make.
I have also invited Senator McCain, who expressed an
interest in joining us today, to join our Subcommittee panel
and participate to the extent he has time and an interest in
doing so, and we are also glad we have Senator Coburn here.
Senator Kennedy, I will turn it to you.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Well, thank you very much, Mr. Chairman.
And I thank you for the continuation of the series of hearings
that you have been holding. They have been very comprehensive,
looking at a variety of different kinds of challenges that we
have been facing, the criminality issues which we had in the
last set of hearings, other issues that are enormously
important that we have to deal with. And I want to thank all of
our witnesses, and I look forward to hearing from our
colleagues.
I want to welcome back Asa Hutchinson. The last time I saw
Asa Hutchinson, I revealed that I had been on the no-fly list.
I had been on it in January. I think our hearing was in April.
And I got more attention with that little kind of jewel and
nugget from Massachusetts and around the country. I had more
letters asking me why I wanted a special privilege, and that
is, not to be on the list.
Eventually I got off the no-fly list, but I want you to
know that we are still working on this issue for a number of
our constituents. I know that you were involved and interested
in it, but I came down yesterday from Boston with one of our
leading researchers out at Mitre that has gotten on the list
and is working his way through. And I have become sort of an
expert in working that through. But it is nice to see you. I
have always enjoyed being on the Human Resource Committee with
your brother.
Let me just very quickly say I think for most of us what we
are hearing time and again is that the system is broken and
that we have to look at a new way of looking at our border that
combines the latest in technology. I know Asa Hutchinson was
interested in the latest technology. Others have spoken to it.
But we have to try to, I think, come to grips with a system
that is broken. I don't think there are enough resources in
this country to put a fence all the way across the Southern
border, 1,880 miles, or across the 4,200 miles of border with
Canada or enough troops or enough money to be able to do it.
And we have spent now $20 billion over the last 10 years in
terms of constant expansion, and the numbers are still around
400,000, give or take.
I do believe that if we try--we have 5,000 legitimate
individuals that could come under the immigration laws and
enormous kinds of demands economically. And we are facing
serious kinds of questions of enforcement.
The idea that you have the best trained people, the border
guard out there chasing gardeners and parking lot attendants
when our borders are open in terms of real national security
issues, smugglers, drug issues, I think is just a lesson we
have to learn.
And I think it is a combination of tough and strict
enforcement as well as regularizing the immigration provisions
in ways that are responsive to our economic challenges,
consistent with our immigration history, and also recognizing
that we are not going to have an amnesty program, but we are
going to try and find ways of regularizing our system. And this
combination I think is at least worth a way of giving a
different kind of approach, and this is something that Senator
McCain has been a leader, and others have been enormously
interested in it. And at some time after maybe Senator
Feinstein makes her comment--I know Senator McCain--I will
withhold my questions, but I appreciate the chance to say a
brief word on it.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Kyl. [Presiding.] In case Senator Cornyn did not
mention it, the vote on the final passage of the highway bill
is taking place right now, and I gather all the members here
have voted on that.
I would like to call on Senator McCain, but, Senator
Feinstein, you are up next. Would you like to go next or defer
to Senator McCain?
Senator Feinstein. If he has a time problem, I would be
happy to defer.
Chairman Kyl. If you could do that, I would appreciate
that, and then I would call on you next.
STATEMENT OF HON. JOHN MCCAIN, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator McCain. Thank you very much, Mr. Chairman. I thank
you for the courtesy of my friend from California. I would like
to be very brief because there are important witnesses before
this hearing.
I first of all would like to thank Asa Hutchinson for the
outstanding job that he performed as the deputy head of
Homeland Security, but I would also like to associate my
remarks with Mr. Reed that the system is broken, it has to be
fixed. And I would like to relate one brief vignette that
Senator Kyl is very familiar with.
When then-Director of Homeland Security Tom Ridge came to
visit our border to see up close our problems, we went to Fort
Huachuca, the Army base in Arizona, and we saw the UAVs that
were in operation there. They are a tremendous force
multiplier. Everybody was praising to the skies how important
and valuable this was. Much to the astonishment of myself and
Senator Kyl and everybody else, it was cancelled. It was
cancelled for some budgetary conflict. And now we may have some
ability to acquire a decision by next December.
We have to use high-tech equipment on the border. We must
use high-tech equipment on the border. We will never have
enough people if we took the whole United States Army and
stationed them across the 347-mile border of Arizona and
Mexico. We need to have force multipliers, and we need high-
tech equipment. And it is broken, and it needs to be fixed.
I would finally say, Mr. Chairman, I am glad that you and
Senator Cornyn are heavily involved in this debate. It is
understandable. But I think every Senator from every State in
America has got to be concerned with this issue because they
are not staying on the border or in the Southwest anymore. They
are going to Massachusetts, they are going to New York. The
largest increase in population in America in the South today is
Hispanic people. And they are living in shadows. There are
labor laws and other laws that are applicable to citizens and
they are deprived of, and they are being abused as we speak.
And it is a national security issue. Director Mueller has said
that more people of ``countries of interest'' are crossing our
Southern border than ever before.
But I would also suggest, sir, that we have two other
problems. Very quickly, one is the 10 to 11 million people who
are here illegally. That problem has to be addressed and it has
to be addressed in a humane fashion--in a humane fashion, but
one that does not mean amnesty nor does it mean reward for
anybody who came here breaking our laws.
And, finally, of course, as the President has spoken in
such articulate fashion, we need to match willing workers with
willing employers. And I believe Senator Kennedy and I have
come up with a proposal that it should be, I hope, a basis for
us to all work together and come up with a reasonable solution.
And, finally, I suggest that Senator Kennedy be kept on the
no-fly list as long as possible.
[Laughter.]
Senator McCain. Thank you very much.
[The prepared statement of Senator McCain appears as a
submission for the record.]
Chairman Kyl. Except for the last comment, we welcome your
statement, Senator McCain. Thank you very much.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thanks very much. Mr. Chairman, it has
been my pleasure to work with you and with others on this
Committee on the terrorism aspect of this. And I certainly
agree that our system is broken. I also believe we can enforce
our borders if we have the political will to do so and we
should.
According to the 2003 Yearbook of Immigration Statistics,
in 2000 along the Southwest border there was a record high of
about a million six detained, yet in fiscal year 2003 that
dropped to 905,000 people. At the same time, in 2000 the Border
Patrol processed a record number of persons, a million six, but
in 2003 processed only 900,000 people.
Now, could this be that we are seeing a decrease in the
number of individuals seeking to enter the country legally and
illegally? I don't think so. Since 2000 we have seen a drop in
the number of aliens apprehended, while the number of aliens
seeking to come here has actually increased, where we have put
more money, more resources, more Border Patrol.
In fiscal year 2003, the United States admitted a total of
27.8 million persons in non-immigrant admissions. Those are
temporary admissions to work here, to attend school, or to
visit as a tourist. And along our borders, nearly a million
people, as I just said, were caught attempting to enter the
country illegally. It is estimated that for every one person
seeking to enter the United States illegally that is caught,
three others are not caught. Therefore, the numbers could be as
high as 3 to 4 million a year.
And while we know that we have in the United States 10 to
12 million illegal aliens, during fiscal year 1986 to 2003, the
Border Patrol accounted for 90 to 97 percent of total
apprehensions while interior agents accounted for only 3 to 10
percent of apprehensions. I know there has been a change in
emphasis. To some extent, I really question that change.
This number to me also appears rather skewed, and it makes
me question where our resources are going and why the number of
apprehensions are going down while the numbers of illegals are
increasing.
Now, one of my concerns has been the category of other than
Mexicans, given the appellation OTMs, in the catch and release
program. Along the Southwest border, in 2003 there were 30,147
other than Mexican intrusions. The following year, in 2004,
there were 44,617. That is a 48-percent increase of those,
again, caught.
In February of 2004, during a Judiciary Immigration
Subcommittee hearing, Under Secretary for Border and
Transportation Security Asa Hutchinson--who looks strangely
like that gentleman sitting at the table--responded to
questions by Senator Grassley regarding the catch and release
policy for other than Mexicans as follows: His response, and I
quote--and I think I have done this before, but I want to get
his answer to this today--was, ``At present, DHS has no
specific policy regarding OTMs apprehended at the Southern
border. While OTMs as well as Mexicans are permitted to
withdraw their applications for admission and can be returned
voluntarily to their country of nationality, as a practical
matter this option is not readily available as it is for
Mexicans whose government will accept them back. Thus, when
apprehended, OTMs are routinely placed in removal proceedings
under the Immigration and Nationality Act Section 240. It is
not practical to detain all non-criminal OTMs during
immigration proceedings and, thus, most are released.''
I think that is a real problem, and I want to know if that
problem still exists today.
It is also my understanding that a majority of OTMs later
fail to appear for their immigration proceedings and simply
disappear into the United States. We have looked at the
statistics for each country and the so-called countries of
concern--Syria, Iran, and Iraq. The number of penetrations by
nationals of these countries throughout our Southwest border
are rising. Clearly we are deficient in a mechanism to deal
with these. Thus, it seems to me--and I have said this before,
but if I were a terrorist, this is how I would look to come to
the United States.
So I believe that we have much work ahead of us, and we
need to address some of these serious issues. I look forward to
the testimony, Mr. Chairman.
Chairman Kyl. Thank you very much.
Senator Coburn?
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Well, thank you, Senator Kyl and Senator
Cornyn and our Ranking Members, for this Committee hearing. It
is interesting. This past week I got a letter from a sheriff in
Sequoyah County, Oklahoma. Oklahoma has a pseudoephedrine law
where it is all placed behind the counter. Seventy-five percent
of all the drug labs have been shut down in Oklahoma, yet the
utilization of methamphetamine now is higher than what it was
before, and it is higher because it is all coming in from
Mexico. So it is not just our schools and our hospitals that
are being impacted. It is our children that are being impacted
by illegal drugs that are the most addictive, the cheapest, and
yet we are harboring the very people through our policies that
allow that process to continue.
This is the third hearing that the co-Chairmen have had on
immigration, and we have heard what is not working. What we
have not heard oftentimes is what do you need to make it work.
Your testimonies today are excellent, and I will have several
questions for you. But I think that Senator Feinstein mentioned
probably one of the most important things. It seems to me that
the political will has not been there to do what is necessary
to have a humane immigration policy and at the same time
enforce our laws, enforce our borders, and protect our
families. And it is a national security issue. But it may not
be terrorist in relationship. It may be the undermining of our
very institutions because they are going to collapse under the
weight of illegal aliens who are in this country.
We also had testimony that there are 450,000 convicted
felons that are running free in this country today because we
cannot house them in detention beds. We have 19,000 beds at
$30,000 a year. We need 30,000 or 40,000 more beds just to keep
up with what the flow is. That problem is only there because we
are not enforcing our border.
And so I look forward to your testimony. I thank you for
having the hearing, Mr. Chairman, and I await the opportunity
to ask questions.
Chairman Cornyn. [Presiding.] Well, thank you, Senator
Coburn.
We will now start a 5-minute round of questions, going back
and forth. And, again, we appreciate your presence in this
important hearing.
Your opening statements have been very helpful. I want to
say, Mr. Hutchinson, as I acknowledged your great public
service at the Department of Homeland Security, I know
sometimes when you hear the criticisms that everyone has of
where we are now, it is hard not to take them personally. But I
assure you that we know it is people like you and others who
have worked at the Department that have made things much better
than they would be without your efforts. But we still have a
long way to go.
One of the questions I have for you is: Should the U.S.
Government as a condition of participation in a guest worker
program require that participating countries agree to certain
terms and conditions? In other words, we know, for example,
that the second largest source of annual revenue to Mexico
comes from remittances of the immigrants who work here in the
United States and send money home. We also know that they are
eager for us to address this migration problem, as they call
it, which we call immigration reform, in a way that does allow
more of their people to work legally in the United States. But
given the fact that due to Federal mandate any hospital
emergency room in America must open up to any person who comes
in, regardless of ability to pay, and regardless of
citizenship, that children born of people who are not lawfully
present in the United States are American citizens and
obviously entitled to be educated in our schools and the like,
what kind of commitments should we expect from countries who
would like to participate in some sort of guest worker or
temporary worker program with regard to some of these expenses
for, let's say, medical care the like?
Mr. Hutchinson. Thank you, Mr. Chairman. And, first of all,
I think we should use access to the temporary worker program as
leverage to accomplish our broader objectives and to solicit
their cooperation in reducing the illegal flow into our
country.
I do believe the Government of Mexico needs to take a
greater responsibility in discouraging a very dangerous trek
across the border. I think they have taken some important
steps, but still, the fundamental belief in Mexico seems to be
that this is a right that they have to cross the border and
enter the United States, with or without legal permission. And
that needs to be discouraged. That message needs to go out.
Secondly, in the Central American countries particularly,
we need to have greater cooperation in terms of the process of
removing those that we apprehend coming across our border
illegally. The paperwork, before we can send them back, they
have to agree to receive those. They fly back. We have to have
the paperwork processed. The consular offices have to appear.
They have got to put more personnel, and we need to use the
leverage to get that done more quickly.
Chairman Cornyn. Professor Stock, you mentioned in your
comments, which I thought were very thoughtful, the problems
with an enforcement-only approach. Some people would argue that
we have not tried that yet, which is an overstatement. But
there is a lot of frustration at our unwillingness, either lack
of political will or lack of willingness to invest in the
resources necessary to provide border security and interior
enforcement. But would you agree that--and I think you said
this, but let me just ask you to confirm what I think I heard--
it is that we need both? We need both laws that can be enforced
and the political will to enforce those laws, but then we also
need to deal with the issues that you addressed, that is, how
do we get people to identify themselves and come forward and to
sign up for any program that might be available without dealing
with their desire not to be deported once they report?
Ms. Stock. That is correct, Senator. You have summarized my
testimony very nicely, and I fully agree with everything that
you have said.
I do want to emphasize that one of the big problems right
now is our dysfunctional laws. Most Americans think that
illegal migrants should go and apply for status and get legal.
The problem is they cannot. There are millions of people in the
United States right now who are married to Americans, working
for American companies, doing things that benefit our economy,
who cannot get legal. There are even young people who would
like to join our military services right now who cannot do so
because they do not have papers. Even though they have lived in
the United States since they were small children, they are
physically fit, they speak English perfectly, and they would
make great members of our armed forces, they cannot join
because they are not legal. And I have seen an estimate of
780,000 of those folks floating around in the United States.
It would be of tremendous benefit to our national security
if many of these folks could come out of the shadows and
participate openly in our communities. They would not be
exploited. We would not be empowering some of the criminal
gangs who make it a business now to get these folks in and out
of the country on a regular basis.
Thank you.
Chairman Cornyn. Thank you very much.
We are going to be able to have several rounds, I
anticipate, so I will turn the floor over to Senator Kennedy.
Senator Kennedy. On that issue, Professor Stock, I find
that my office in Boston is just overrun now with trying to
adjust papers by the recruiting officers that are going through
a number of the different communities, in Lowell and Lawrence,
and getting many of these young people in order to meet their
particular needs. I don't know if you are aware whether this is
increasingly a phenomenon. Do you know? Are you familiar with
this sort of effort?
Ms. Stock. Yes, Senator. I cannot speak--of course, I am
speaking of my personal opinion only and not on behalf of the
Department of Defense, but I know that folks who have come to
the United States from other countries and have adopted this
country as their own often feel very patriotic and have a sense
that they need to serve their adopted country, particularly in
wartime. And many of them are legal and are able to openly go
and join the military services, and they have signed up, and we
have had a number of them. Some who are illegal have managed to
get into the military and have served honorably and have earned
their citizenship and even died in combat fighting for the
United States. But there are hundreds of thousands of young
people who are out there potentially available to serve the
country that they have lived in since they have been small
children. They have been educated here. Many of them are
terrific recruits but for the fact that they don't have papers.
Senator Kennedy. Let me just get the reaction of the panel
to this point that the Chairman raised about other countries
doing their bit. I think this is--we are never going to get
this right--if we can get it right, it is enormously complex--
unless we are going to get Mexico to do its share, and the
other countries in Central America. And we have been sort of an
outlet for Mexico in terms of, I think--this is my personal
view--trying to deal with some of the social dynamite in terms
of its society. But we have to expect that they are going to do
a good deal more.
Part of the remittances, as I understand, are being used to
provide some initiatives in terms of development. I don't know
whether you are familiar with those efforts. Is this is an area
that can be expanded? Should we expect that this is an area
that at least we can try--if we are trying to get them to do
more, what do you suggest that we ask them to do besides just
probably a tougher border patrols, tougher policing? Since we
know, as all of you have pointed out, this is the economic
magnet in terms of employment, what can we get them to do? And
what suggestions do you have? Professor Stock, do you want to
take a crack at that?
Ms. Stock. Sure, I would be happy to, Senator. First, I
want to emphasize that it is very beneficial to the United
States that we have Mexican citizens sending remittances home
because that money helps to stabilize Mexico, which is of
benefit to us. If the folks are coming here legally, though, we
also gain the added benefit of having potentially fee income to
the United States Government, more taxes collected, the
possibility of people paying for health insurance, which will
relieve the problems with hospitals have to pay for illegal
migrant health care. If people are buying health insurance,
that is less of a problem.
With regard to cooperation with Mexico, I think there are
enormous opportunities there. We could have cross-border
cooperation with law enforcement. We could have cross-border
cooperation on checking the backgrounds of people who are
coming in, checking the validity of documentation, identifying
people.
Senator Kennedy. Those are not in process now to the extent
that--
Ms. Stock. They are in process now, but I suspect that if
we have a program that benefits Mexico and ourselves that
allows for the legal and orderly migration of people back and
forth--and a lot of the folks from Mexico do not want to live
here permanently. They just want to come here, earn money, go
back eventually to Michoacan or wherever they came from in
Mexico, having earned enough money to support themselves back
in Mexico again. So we need to recognize that there is a
cyclical flow as well.
Some of those programs are in place, but I expect they will
be enforced or they will be stronger and better if the flow is
legalized.
Senator Kennedy. I have just two final questions. My time
is running out. One is for Asa Hutchinson who has supported a
temporary program, but also supported that at the end of the
time these individuals would be required to return to their
home of origin, whether he thinks that that requirement of
returning home, whether that--these individuals know it,
whether that would serve as a disincentive. And then I would
like to ask Mr. Reed, and any of you could comment, in terms of
the newer kinds of technologies, one of the things we have
heard from Senator McCain, at least one particular program that
was cancelled that might have been from a technological point
of view advantageous. But do you have other suggestions that we
ought to be thinking about?
Mr. Hutchinson. First, Senator, I do think that there would
be an incentive for those living here illegally to get a
temporary worker status because they don't like the shadowy
lives that they have. There would be a percent that would have
no desire to return, and that would be an impediment, and they
would not pursue that temporary worker permit because of that.
I hope that that would be a smaller percent. But if you have 8
million illegals in the country at the present time and a
temporary worker status would decrease that number by two-
thirds, well, that is a huge security benefit because of that
effort.
In reference to technology, there is a lot you look at. You
mentioned Mexico. They need to invest in better criminal
databases. They have people arrested in Mexico that we cannot
verify through our background checks just because they do not
have the capacity to give us a record of all of the criminals
that have been convicted in Mexico with any sense of accuracy.
On the United States side, we have to invest in technology
through workers that can actually online identify the workers
here in this country who are here under visas or work permits
and know when they move or are out of status.
Senator Kennedy. Mr. Reed, would you make any comments? Do
you have anything to add?
Mr. Reed. I think we can ask a lot of Mexico, but I think
we need to construct our dialogue with them so that it is
something that they have a vested interest in pursuing. I think
we can ask Mexico to control their southern border. I think we
can ask Mexico to work hard to not be a transit country for
people trying to go from a third country through their country
to our borders. I think that is something that they could
embrace. I think that is something that we could help them
develop. And I think that is something that would help us out
tremendously in terms of dealing with the real threat of
terrorists entering the country through Mexico.
In terms of some of the other dialogue, I think that a lot
of the things that we want to legislate are not legislative
issues. With Mexico, the dialogue should be how do we create an
environment where as people, labor is working temporarily in
the United States, we are actually developing incentives, not
necessarily a law or legislation but incentives for people to
work here and leave their family home and to build their homes
in Mexico, to invest in Mexico, build streets, schools, and
hospitals in Mexico while a principal worker may be up here in
a temporary status.
I think those are the kinds of things that we should be
talking to Mexico about, and I think a lot of these things are
set forth in, I think, a 22-point plan that was set up as a
binational dialogue quite some time ago.
But in terms of technology on the border, there is so much
technology out there that could detect anything coming across.
I do not think it is a question of--that is there. It is
available. It is a matter of reaching out and grabbing it and
putting it there and using it.
Chairman Cornyn. Senator Coburn?
Senator Coburn. Thank you, Senator.
Colonel, I want to thank you for your service at West
Point. I appreciate that. I have a question. One of your
statements troubles me, and I am somewhat curious about it. In
your statement you claim that people who are already living
here, who work hard and pay taxes, should be allowed the
opportunity to earn their permanent residence. Why should they
be allowed to earn the opportunity for permanent residence if
they came here illegally? And what does that say to the people
who came here legally who are working hard and paying taxes?
Ms. Stock. Thank you, Senator. That is a very good
question.
I think what has gone on here since 1996, when we attempted
to reform the immigration laws, is we have actually created a
worse situation than we expected. We have trapped many people
here in the United States. It has become apparent now that
there are hundreds of thousands of folks who are here in the
United States who cannot leave because if they leave, they will
never be able to get back in. This is because of the 3-year
bar, the 10-year bar, the permanent bar.
It is important to allow folks who have established
families here, partially as a result of our laws, to have the
opportunity to stay here in the United States with their
families.
Now, Mr. Reed correctly mentioned that there is a cyclical
flow and that is what we want to encourage, but since 1996 we
have actually gone the opposite direction. We have encouraged
people to stay here because of our laws. They have not been
able to leave to go back home because it has become more
difficult to come back in, so they are trapped here in the
United States due to a combination of laws and stronger border
enforcement.
Because many of these folks have been here so long, they
have established families and ties in the community. And while
it sounds good to enforce the laws, on the one hand, we are
enforcing laws that make no sense when you are talking about a
family unit. We say let's enforce the laws, but enforcing the
law may involve the breadwinner of the family going back to a
foreign country for 10 years, 20 years, leaving the family that
is part of the United States community, the American citizen
spouse and kids, here to apply for welfare. That does not help
our security.
It sounds good to enforce, but it makes more sense in the
long run to let those folks stay here.
Senator Coburn. But what percentage of people are you
talking about? Are you talking about somebody that overstays a
visa, who has a legal visa, and then because they have
overstayed it they have a penalty not to come back in? Or are
you talking about people who came here illegally and never had
a visa in the first place?
Ms. Stock. Well, we do not have good numbers on that,
Senator, that is the problem.
Senator Coburn. But we do know the people who are here on
visas who have not gone home. We have a list of them. We just
cannot find them. So which laws are you talking about changing?
Are you talking about changing the visa laws, the immigration
laws? What specifically arcane laws are you recommending that
we change so that we do not entrap people here?
Ms. Stock. One very specific recommendation I have would be
to get rid of the 3-year, 10-year and permanent bars which are
currently trapping the spouses of American citizens and their
kids here in the country. They cannot leave because if they
leave they do not get back in, they do not get a waiver to come
back in. And people know that because they know other people
who have left and tried to apply for a visa overseas in order
to fix their status, and they have been told, ``You cannot come
back in. We are not letting you back in.''
Senator Coburn. So I want to follow this logic for a
minute. Because people have broken the law, violated our
immigration laws, and because they have now established a
family under that illegal act, we are going to change the laws
to benefit them rather than to benefit the people who came here
legally under our laws and followed our laws? Is that what you
are telling me?
Ms. Stock. Senator, I think, obviously, the people who have
managed to follow our laws, I have actually run into very few
of them. Because our immigration laws are so complicated, I am
willing to place a bet here that I can find an immigration
violation in just about any person who is here in the United
States. We have laws that are so complicated even the
Department of Homeland Security does not understand them. They
call them a mystery and a mastery of obfuscation.
Senator Coburn. I understand that, but I want to get an
answer to my logical question. What you are proposing is that
regardless of the laws that we have today, that if somebody
came here illegally and established a family, and because it is
important to get them to travel back and forth, we should get
rid of all the sanctions on those people who are violating--who
may have even come here legally under a visa. You are proposing
to me to rationalize those laws? And what laws would you put
forward that would change that? How would you change that
specifically and still have enforcement in terms of any
meaningful enforcement on a visa application to coming into our
country?
Ms. Stock. I think what you have to do is have a
combination of things. You have to have some kind of guest
worker program that allows the people who want to go back
cyclically--and there are a lot of them--to do that, without
establishing ties here so that they can contribute to their
home community, maybe move back there eventually, buy the
soccer field in Michoacan.
However, you have to recognize that we have a substantial
population of people who have now set down roots. It does not
make sense to keep them in the shadows. If you say we are
simply going to enforce, enforce, enforce, those millions of
people are going to remain in the shadows, they are not going
to be benefitting our country, they are not going to come
forward.
I am not in favor of legalizing everybody in America. I am
sure there are going to be some people who come forward who
turn out to have very serious criminal records. One of the
benefits of having people come forward is they get
fingerprinted, we get to check them through our system, we get
to figure out whether they have to pay a fine or not for having
overstayed a visa. We get to make a judgment call as to whether
this is somebody who should be allowed to contribute to our
community or somebody who should be deported. That is a
potential benefit of a program that allows for legalization.
I do not think anybody is proposing allowing everybody who
is here in the United States to suddenly one day get legal.
They are talking about an orderly process for people to apply,
to come forward, to show their character, their criminal
background, get their fingerprints checked, and the Government
of the United States making a decision whether to let them stay
or not.
Senator Coburn. I think we did that in 1986.
Chairman Cornyn. Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
I wanted to ask, Mr. Hutchinson, a couple of questions if I
might. I recall talking to you on the subject of waiver of
deportation sometime ago, when you have someone who is here
illegally, who works hard, who has not broken the law, who has
American children who are doing very well. And I have submitted
a few private bills to try to reconcile these people, and
increasingly, I found in California that the Immigration
Service was going out to pick them up and deport them. And then
when I looked at the numbers on the waiver of deportation, I
think there were 10,000 people that are eligible a year for a
waiver of deportation, and only 4,000 had been filled.
Do you have any recollection as to why that was the case?
Because I was going to expand it. And then I found, haven't
come to the halfway point of fulfilling the allotment that is
in the law already. Do you know why that is?
Mr. Hutchinson. I would assume there would be some criteria
for obtaining that waiver of deportation, and I know that--and
I am not saying it would apply in the circumstances that you
mention, but there are certain requirements that if they have
criminal offenses, that under the immigration reform bills that
could not be waived, so that might be a factor in some of the
individuals that are considered and request waivers.
Senator Feinstein. Well, maybe one thing we might do, and I
am going to take a look at it, is look at the criteria and lay
them out more clearly in law so that everybody knows who is
eligible for that and who is not. I think that is one thing.
Last month the Chairman had a dialogue with Mr. Cerda. Mr.
Cerda--let me see, who is he--
Mr. Hutchinson. Victor Cerda?
Senator Feinstein. Mr. Cerda, was the Acting Director of
Detention and Removal Operations for Immigration and Customs
Enforcement. And one of the things that came out of that
dialogue was that there are 465,000 fugitives today from the
catch and release program, of which 80,000 are criminal
absconders.
I was wondering if you can shed any--I think the Chairman
probably remembers that discussion, I have the transcript--and
to me this is an unacceptable figure. I guess my question is,
what do we do about this?
Mr. Hutchinson. It is totally an unacceptable figure. You
are absolutely correct. I think it comes down to a couple of
things. One of them is particularly detention space. Whenever
you look at apprehensions and the, for example, the war
supplemental increase, I think it was 500 border patrol agents,
and I think you all did increase some the detention space as
well, but the detention space is the key ingredient to avoiding
the release--you mentioned the OTMs--other than Mexican
nationals, it is a key to discouraging immigration, someone
from packing up their bags in El Salvador and coming to the
United States, first to evaluate what is the chance of getting
caught? Secondly, if I get caught what is the chance of being
incarcerated, quickly removed, or am I going to get released in
the United States? Right now they are evaluating that and
saying the chances are, I will get released.
So the detention space is the key to discouraging that
flow, that person in El Salvador not picking up their bags and
coming to the United States. That is obviously the reason we
have over 400,000 absconders here in the United States.
Senator Feinstein. I think you have made a very good point.
I think it is very clear that we need more detention space and
that we really should address it.
Senator Kennedy. Could the Senator yield just for a quick
comment?
Senator Feinstein. Yes, certainly.
Senator Kennedy. Do you have or does anybody have the
countries? I mean if we cannot send the criminals back to the
countries, do we have a list of those countries?
Senator Feinstein. I have them all right here with the
numbers and the increases.
Senator Kennedy. Okay, thank you. The ones that do not
permit us to repatriate? I do not want to take up your time.
Senator Feinstein. These are other than Mexicans by country
as of June 30th of '03, but I cannot comment on repatriation.
Senator Kennedy. My question is the countries that will not
accept repatriation. Maybe we have that.
Mr. Hutchinson. That is very important information though
because when they do not accept repatriation, we either have to
release them or we keep them incarcerated which fills up the
detention space.
Chairman Cornyn. Mr. Reed, I believe you indicated you had
a response to Senator Feinstein's question?
Mr. Reed. Yes. I was chomping at the bit to try to get in
here. This detention space issue is much larger than just beds.
I had the misfortune of testifying before another subcommittee
a few years ago, where the central region had set up a program
that was going to expedite the removal of a lot of people so
that we could free up beds. The other misfortune is we decided
to call it the Hub Site Program, which had some sort of a
connotation that was not acceptable to the community.
But at any rate, what we had done was decided that
detaining people all over the countryside and trying to figure
out how to get them the counsel and everything else was the
major factor why people were not getting to hearings and were
not getting an order. So we decided we would put them all in
the same place where you had immediate access to counsel, to
consulates, to transportation, to detention space, everything
you needed to have a process go real quickly because--and I bet
it is still ongoing today although I do not know--the number of
continuances that take place before a person actually gets a
decision from an administrative judge is extraordinary. And
during that time the detention space becomes so critical that
you have to release people in order to take people in the front
room. So the agency cannot win.
But the other piece of that which I really found that
really struck me, and the lesson learned on that, is if we went
out and picked up all those criminals that we are so concerned
about right now and sent them home, from an international
global strategy we end up with a bigger problem. A lot of these
countries it is not just the people who will not accept people,
it is do the countries have the ability to absorb that increase
in the criminal element coming back in to a country that may
destabilize the country?
I am certain in my mind that the reason the Hub Site
Program was shut down is because we were about to send
thousands of criminals back to countries that were not in a
position to absorb that impact.
Senator Feinstein. I think that is a very good point. One
of the problems for my State, California, is that murderers,
people who have killed deputy sheriffs, law enforcement
officers, go over the border to Mexico and Mexico will not
extradite back to California. My view, very frankly is, Mexico
also will not cooperate in enforcing the northern border,
despite all of the problems we may have. It is hard for me to
feel sympathetic under those conditions.
It seems to me that Mexico ought to help us enforce the
northern border, particularly if Mexico wants a more liberal
acceptance policy of people that cross the border. It is as if
there is no real understanding for the American dilemma of such
large numbers coming across the border at a given time, that
there is not the infrastructure to accommodate them. What has
worried me, and particularly in California, this is what
develops a backlash, and this is what develop propositions that
go on the ballot that pass overwhelmingly. So there has to be
structure in this, and there has to be numbers that are
absorbable in everything we do. It seems to me that the lack of
cooperation of Mexico to achieve that goal is really a
significant one.
Chairman Cornyn. Thank you, Senator Feinstein.
Senator Kyl.
Chairman Kyl. Thank you, Senator Cornyn.
At least two of you testified in your written statement--
incidentally, I forgot to include in the record the statement
that Senator McCain made, if I could make that request.
Chairman Cornyn. Certainly, without objection.
Senator Kennedy. Could I just include also Senators Leahy
and Feingold?
Chairman Cornyn. Without objection.
Senator Kennedy. Thank you very much.
Chairman Kyl. For example, Mr. Reed, you talked about
worksite enforcement and you harken it back to the enforcement
initiative called Vanguard, which when implemented became so
successful that--well, it was too successful and therefore was
disbanded because it was identifying too many people who were
employed illegally. Then you noted another program that I
gather is not working as well, the Basic Pilot for employers,
part of it dealing with lack of funding, part data integrity
issues. And then Asa Hutchinson, you also talked about the
greater investment workplace enforcement as a requirement for a
new program that employers have to verify the legal status of
job applicants and so on.
My question is this. What kind of employer verification
system would you envisage as both necessary and workable, which
would provide good documentation and verification of the
appropriate status for employment that could be easily used by
employers? And how would it tie into Social Security? Would it
apply to all Americans as opposed to just different categories
of temporary workers? And if so, how would you make that work?
Let me leave it at that for right now. And identify, if you
could, what you think such kinds of systems would cost and what
time it would take to put them into effect. That has to do with
the comment that one of you made about past amnesties not
working, and I think, Mr. Reed, you made that point.
I am a little concerned about providing a temporary worker
program until we have the capability of clearly enforcing the
program, which would include having in place not only the
people but also the machinery that might be necessary for that.
Mr. Reed. A couple of things. Regarding the temporary
worker program, I think there is all sorts of things that could
happen beyond the Government infrastructure to make that work.
Basic Pilot, you should know that besides working on technology
and trying to help DHS figure out better ways of doing
business, I am also engaged by the private sector. One of my
very best and favorite clients is Tyson Foods, who went through
a very troubling time, and basically brought us in because they
never wanted to go through it again, and I have worked with
other employers in similar situations. I now see what the
employer sees from the other side.
I was very concerned about Basic Pilot when I was on the
inside because many times the people, the very people that we
wanted to go after and prosecute, were enrolled in Basic Pilot.
So I had a heck of a time trying to sort out how somebody on
Basic Pilot could be the people that we are going after because
they have got all the undocumented workers.
So we launched Vanguard. I do not mean to hark back on
that, but I think Vanguard shows that with very little money,
less resources really, you can do a much, much better job. All
we did with Vanguard was make Basic Pilot work. We looked at
the document statement were submitted from the I9 information.
We subpoenaed that information and said, let us take a look at
it, and then we compared it against databases to figure out if
there were other Mark Reeds working at other places, and were
there inconsistencies in that information?
That is something that Social Security is doing now with no
match letters. It is a very tepid type of approach, but they
could do much better. Social Security could tell you very
quickly as to whether there is two people out there using that
same Social Security card or not. They do not.
I can tell you that when I go into Tyson Foods and suggest
that they may have a problem with unauthorized workers, they do
a lot of staring at me, asking me how to explain how it is that
I think that they have got unauthorized workers, when the
Government, through Basic Pilot, has provided them a document
stating that that person is authorized to work in the United
States.
Somehow Basic Pilot is being beat. I suspect it is because
it was designed to be beat, but I probably just went over the
board a little bit with that statement. But it can be fixed and
it does not take a lot. I had 10 agents in a room who fixed it
for Vanguard. We are not talking about a major increase in
resources. We are just talking about making things work that
should work.
Mr. Hutchinson. Let me just add, one, I think in reference
to a temporary worker program, a prerequisite for that is to
satisfy the American public we are capable of securing our
border, and it will not be in this fix again. So that is sort
of a criteria that we have to reach before we move forward on
that.
In terms of the Basic Pilot program, and I appreciate Mr.
Reed's comments, because that is sort of the ground floor
analysis of it from a policymaking standpoint. One, the problem
with the Basic Pilot program is that it is voluntary, it is not
mandatory, and it needs to be expanded so that it could be used
in problem industry particularly. Secondly, it is dependent
upon the information that is in the system. If you are going to
verify Social Security status--and our Social Security
Commissioner, I have met with her, and really is security
minded, so I think she is willing to take steps that can
improve the system.
The other side is the immigration status. I do not know
that they are verifying that they are here legally as much as
there is not any adverse information in the system. But my
information is that it would be very expensive to expand that
program because I ask about, you know, how can we have a
program to expand Basic Pilot into a more mandatory system, and
the costs were very, very significant, primarily in the
response capability of the Government for the multiple
inquiries that come in. Mr. Reed might have different
information on that.
Then finally, I just think that you look at our SEVIS
program that monitors international students that come in, it
is a very effective program online, technology driven,
confirming attendance in class. This is the kind of system that
we have to develop for employers. Whenever you are looking at
temporary workers or workers with a visa that is coming in,
obviously not U.S. citizens, but the temporary workers. That is
the type of system we do not have now, we have got to move
toward.
Mr. Reed. I agree very much. In terms of expense I agree
that it will take a significant amount of money to expand it. I
would suggest that I believe that most employers would
contribute towards helping build that system that would work so
that they could get a response back that they could believe in
that would reduce their vulnerability. So I do believe the
Government's got a responsibility to move forward with it. I do
also believe that private industry would like to partner with
the Government to help build a system that would work.
Chairman Cornyn. Senator Sessions, I know you have been
otherwise occupied and were just able to join us. We have each
had a chance to ask a couple of rounds, and Senator Feinstein
has graciously agreed to let us do two questions on our side
before we go back to the other side of the aisle. If you have
any questions, go ahead.
Senator Sessions. I do, and I thank you for having this
hearing, and I apologize for not being here. You have a good
panel on a very important subject. I once described this effort
of being successful, and immigration enforcement is like
building a bridge that was 8 feet long to get across a 10-foot
gap, and if we just do a little more and really get our minds
straight, this thing could begin to work.
Mr. Reed, Mr. Hutchinson, do you think with existing
resources there may be a little more--we are really not as far
away as most people think in making this system work?
Mr. Hutchinson. I do not think a little more will do it. I
think it has to be substantially more.
Senator Sessions. How much substantial in a percentage
basis maybe?
Mr. Hutchinson. My judgment is that in terms of the
personnel you are moving at a fairly substantial rate. I think
it was 500 new border patrol agents in the War Supplemental. I
think it is on the technology side that we are creeping along
too slowly. For example, US VISIT--
Senator Sessions. Technology is sort of a one-time expense.
Yes, it will be expensive and it will be somewhat expensive to
operate, but once you are successful in breaking what you
suggest is a two-thirds certainty of being apprehended, once
you get over that, all of a sudden people start complying with
the law, do they not?
Mr. Hutchinson. Absolutely. It is a dynamic out there that
we can reach. I fundamentally agree with you that we can do it.
It is going to take a significant investment in detention
space, some court personnel, as well as some of the technology.
We can get there very quickly with an increased investment.
Senator Sessions. Mr. Reed, would you comment on that?
Based on your experience--a witness at the last panel, Mr.
Chairman, if you remember, I think his last comment was--he had
been with INS for sometime--he said: I am not sure that our
people understand what the policy of the Government is. I think
that was a honest, low-key stated statement of a real problem.
If the Government had as its policy, clearly to enforce the
laws and stop the illegal crossings and entries, and to
therefore move people to the legal system of entry into the
country, how far are we from getting that done, Mr. Reed? Is
that impossible?
Mr. Reed. I have to be careful with terms like ``little''
and ``a lot.'' I believe this can be solved, and it can be
solved on the back of what we already have in place. It is
going to take some significant investments in some technology.
But if you compare that to the monies that are actually going
to be saved in the long run, I regard that as a small
investment for a great return. I think that part of it is very
solvable. I think we have off-the-shelf technology that is
available out there. You have some very smart people in the
right positions in DHS right now. The Government is poised to
move forward.
I am not sure I could say the same for the politics, and
that is going to take a major, a lot of increase or investment.
Senator Sessions. One reason we have a political problem, I
am going to tell you, is that I believe a large percentage of
our Senators think it is pretty hopeless to create a system, a
legal entry and exit system that actually works, but it is not
in my view.
You mentioned, Mr. Hutchinson, in your four suggestions,
just wonderful simple suggestions, your first one is that the
chance of apprehension must be greater than two-thirds. As a
former prosecutor myself like you were, I think there is a lot
of truth in that. Would you explain--is that the tipping point
you are looking for?
Mr. Hutchinson. I believe it is. And of course, we are
talking about mass migration. Two-thirds is not enough when you
are dealing with terrorists, but if you can reduce the mass
migration you can concentrate on those who pose a risk to our
country. But if I think about the individual in Costa Rica
thinking about coming to the United States. What is the risk of
getting caught? Two-thirds is pretty substantial. If you get
caught, then what are the chances that you are going to be
immediately returned back to Costa Rica or sit in custody for
some time? That is a factor they are going to consider. And
then even if somehow you, by the slimmest of margins, snuck
through and got out, what are the chances of an employer hiring
you because of your illegal status?
All of those, if they are going to sit there and say
minimal chance in all of those categories, they are not going
to come because it is not going to be worth the investment of
paying $5,000 to a smuggler when the chances are not very good.
Senator Sessions. How would you evaluate that, Mr. Reed?
Mr. Reed. I think that is fairly accurate. I am not smart
enough to understand two-thirds versus three-quarters. I think
that there should be an absolute certainty of detection. I
think there should absolutely be consequential deterrence in
place that discourages people from behaving inappropriately. It
is fundamental, straightforward law enforcement, and when you
lose that, you really do not have anything to work with. And we
have lost it.
Senator Sessions. I spent a lot of years in law enforcement
and I absolutely believe that the professionals statements that
it is the likelihood of getting caught, more than the amount of
punishment, that deters criminal activity. I have always
believed that to be an accurate thing. If we could, with a
strong will and some new technology and new expenditures,
creating a system that would actually work, I believe you
could--all of a sudden you would see a drop in the people
trying to come illegally, an increase in the number of people
coming legally, and all of a sudden the cost of the system
could actually begin to go down.
Anyway, Mr. Chairman, you have given such thoughtful
leadership to this, I can tell you how much I appreciate it. It
is not always a task that is filled with glory and
appreciation, but it is important, and thank you for your
working at it.
Chairman Cornyn. Thank you, Senator Sessions.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. I
want to just have an informal discussion. I have been on this
Subcommittee now for 12 years, and we go round and round and
round, and we all know the system is broken, and we do not know
what to do to fix it. We know that our country is the largest
immigration magnet in the world. And people want to come here
from everywhere in large numbers all of the time, year in, year
out. So we know there has to be some system of order.
We know that as a country we take more people legally than
all of the other industrialized countries together do in a
given year. We have been a very open and--I do not want to use
the word ``generous'' because I do not think that is the right
word--but we have been a Nation of immigrants and we have
always respected newcomers coming to this country. We also know
that employer sanctions do not really work. The use has
dropped.
So it seems to me that there is only one way to go. we have
to enforce the borders and we have to have a logical system.
Whether it means taking a look at the quotas for legal
immigration, making some adjustments in them, because I
believe, for example, Mexico, people have to wait a very long
time to come in legally. Maybe we should look at the quota
system and see if it really meets the need the way it is. I
think we have to finish the border fence. I think we have to
staff the border. I think we have to have it technically as
advanced as possible.
And I think we have got to have a real disincentive to
illegal immigration. I think that amnesties create an
incentive, so that is not the answer as far as I am concerned.
I also do not believe guest worker programs are the answer
either, because the people who come to California--and we do
not have a big H2A program--but people who come for other kinds
of labor do not go home. They bring their families and they
stay.
Let me begin with you, Asa, because you know, now you have
hindsight, which is much better. How would you change the
system? Specifically what would you do?
Mr. Hutchinson. Well, I me an I think first of all, you are
right that the border enforcement is critical. I also agree in
terms of having to look at where we are allowing people, our
quotas, and I think that is a fair debate to have.
I do think that the employer side is very, very critical to
reducing the power of that magnet, and it is not just a matter
of sanctions, although the enforcement side is important, but
it is also the tools that you give the employers that we have
talked about today.
So I went in and I did focus on the border side, did not
have all of the tools that we needed, moved forward as quickly
as we can, but I also recognize that that employer part of the
equation is critical to success overall.
Senator Feinstein. So you believe we should keep employer
sanctions but do what? Because they are not working now.
Mr. Hutchinson. I think you have to give them tools, expand
the Basic Pilot program, make it more comprehensive so they can
verify--they have to be able to verify they are not hiring an
illegal worker. You have to give them the tools to do that.
Secondly, once you do that, you have to be able to have
enforcement there.
Senator Feinstein. Can I understand something? You mean the
A9 number?
Mr. Hutchinson. The I9s, yes.
Senator Feinstein. Excuse me, I9 number. When you say they
cannot verify it, what exactly do you mean?
Mr. Hutchinson. Well, the employer is required to take
certain documents, but unless they are a part of the Basic
Pilot program, there is not any requirement for them to verify
the authenticity of those documents, whether it is a valid
Social Security number or a valid driver's license, or that
they really have a citizenship in this country. So the
employers are in compliance--
Senator Feinstein. Can they not verify by the I9 number?
Mr. Hutchinson. Well, they could, but there is not any
requirement to do so, and that is the problem. There is not any
requirement to do so.
Senator Feinstein. Then maybe we ought to make it a
requirement that they take that I9 number on a card and verify
it, and set up a system to be able to do the verification.
Mr. Hutchinson. That is the direction that I believe we
need to go.
Senator Feinstein. Anybody else on this point?
Mr. Reed. Yes. I work with a company that is on Basic
Pilot. What you will see that will happen when you take an
employer that moves from non-Basic Pilot to Basic Pilot, and
before they had a workforce that was traditionally immigrants,
when you go to Basic Pilot all of a sudden everybody turns into
a United States citizen. The reason that happens is because
they will go out and buy an identity that will defeat the
checks that Basic Pilot runs in terms of determining as to
whether or not those people are actually lawfully entitled to
work in the United States.
Senator Feinstein. I am not thinking of a pilot. I am
thinking if, you know, you have these documents that people
present. It seems to me there is a way of verifying whether the
documents are real or not.
Mr. Reed. I was not clear in my response. This program that
we are talking about actually requires people to collect
document and to collect information, and send that information
to the Government so the Government can make a determination as
to whether or not that person is authorized to work in the
United States. Once the Government makes that determination
they send back a notice to the employer indicating either the
employment is authorized or there needs to be further inquiry
made.
Senator Feinstein. Can you not just do that with a phone
call? I mean if it is a fraudulent document it is going to have
a made-up I9 number.
Mr. Reed. I totally agree. Let me back up a little bit. I
believe that there is an answer to this. If there is a legal
worker in every job the incentives to enter this country are
going to go away. So if there is a way to approach this in
terms of a comprehensive program, once we put a legal worker in
every job that is available in the United States, the masses of
people entering the country is going to dry up, and that makes
everything else work. All of a sudden all the numbers become
manageable.
But the problem that we have right now is we have set up a
system to check that type of information that does not work.
Senator Feinstein. It is paper based.
Mr. Reed. I think it could work. Pardon me?
Senator Feinstein. If we change it from paper based to
providing a service where people call--
Mr. Reed. I think it can be done electronically.
Senator Feinstein. Or electronically.
Mr. Reed. I think this can all work, and I do not think--
this is not rocket science. Social Security, I believe if they
ran more than just a cursory review of the numbers, that they
would be able to detect if there was some sort of a discrepancy
with the information that that worker provide to that employer,
especially if it was based upon fraudulent documents. I think
that this can happen.
Senator Feinstein. See, that is way of carrying out the
employer sanction. In other words, we require that they would
have to check the documents if they could do it electronically,
and if they do not do that and they hire somebody that is not
valid, then you have got--it seems to me you have it right
there. Am I wrong?
Mr. Reed. Well, there are all sorts of issues surrounding
this in terms of--I think the Government needs to accept that
responsibility. What you say has great merit, and I think it
would require a little bit more dialogue. It is ironic that the
employers are afraid of this because there is also a law out
there that says you can only ask a couple of questions, and if
you ask one too many questions, there is another element of the
Government that will come out and hurt you.
So I think it goes back to the Government needs to make
this a coherent system. They can do it. I think the employers
are ready to accept it.
Senator Feinstein. Very interesting. Thank you.
Chairman Cornyn. This has been great. I know that I have at
least one more round, and maybe a couple more if you all will
hang in there with us.
I am struck, Professor Stock, the more I look into
immigration-related issues, at what bad information we have
about the size of the problem. I think you mentioned between 8
and 20 million people, and the Congressional Research Service
told us last year it was about 10, with about 6 million in the
workforce, but here again it may be just about anybody's guess.
And then we make blanket statements about the characteristics
of this immigrant worker population as if they were all the
same, they all had the same intentions and motives. Some people
say, well, if you create a temporary worker program, no one
will come forward, or no one will ever leave once here, all of
which strike me as overstatements because we just do not know
and we are making blanket statements without really having good
data to back it up.
But one thing that your testimony discusses is something I
wanted to focus on, and that is circularity of worker flow. You
indicated earlier that we may have actually done ourselves a
disservice by erecting stricter border enforcement without
doing other things, because people who were here, who would
like to go home are afraid to go back home because they might
not be able to get back. Based on that statement, it strikes me
that we perhaps overstate the case when we say that everyone
wants to stay here.
My point is that people who are immigrating do so for a
number of reasons, including economic reasons. People who have
no hope and no opportunity where they live want to come where
they can provide for their family. We all understand on a very
basic human level why that is so, and presumably each of us
would do the same thing under similar circumstances.
But do you see the possibility of enacting what I would
call a work and return program as part of this solution that
would in fact take advantage of this characteristic of
circularity of worker flow that would be perhaps one piece of a
solution to this problem?
Ms. Stock. Yes, Senator Cornyn, I definitely think that
part of the solution is to have a program that makes it
relatively easy for people who would like to come work here
temporarily, who have an employer who is willing to hire them,
no American willing to take the job, just as President Bush has
discussed, that should be part of the program. It cannot be the
whole program though because there are other pieces of it
necessary to have a full and comprehensive program, and we have
not tried this before. That is important to point out.
In the 1980s, the amnesty that took place in the 1980s,
this was not a comprehensive reform that tackled the cyclical
issue, the issues of circularity. It was kind of a one-time
program with specific data cutoffs, and that does not address
the problem of the historical flows from Mexico back and forth.
Chairman Cornyn. Again, looking at immigration-related
issues, it seems like every time you address one issue you kick
over a stone, revealing another problem. But when I think about
our trade policies, I recall that I was struck when I went to
Guatemala about a year ago, a gentleman I had lunch with,
arguing in favor of our ratification of the Central American
Free Trade Agreement. He said, ``We want to export goods and
services, not people,'' which to me very concisely made the
case that it is in our best interest to help Central American
countries, Mexico, and other countries that do not have the
opportunity that is available here, to create that opportunity
back home for immigrants, or else what else would we expect but
they would leave and come here to work.
So that helped nail the case for me on CAFTA, which we will
debate here before long.
But how do we deal with the issue of bad information or
inadequate information when we say to people who are here, who
have been here for a while, that they can only work temporarily
and have to go home, that they are not going to come forward?
Asa Hutchinson mentioned, well, some people will just so they
will not have to work in the shadows, so they will self
identify. It strikes me that there are some single workers who
do not have the family and community ties that might be willing
to take advantage of that, and I believe you made the case that
if we could eliminate a large percentage of people, that would
make our job a lot easier.
I wonder how do we deal with that lack of good solid
information in making general laws that apply to everybody? Mr.
Hutchinson, do you have a comment or a response to that?
Mr. Hutchinson. To me the rule probably is let us improve
the present circumstances, not make it worse. You make it worse
by not doing anything. You make it better by reducing, one,
making sure we secure the borders, but secondly, addressing the
problem of the illegal population here in the United States,
and if you can decrease that by providing some incentives for
them to return home, that is a good thing.
I know that it is hard to get good data, but the
information that I have, and belief, is that when someone first
comes here, you know, they have their family ties back. That is
why they do the going back, they go back for the holidays. It
has been more difficult because we have tightened the borders,
but they have that desire to go back. The longer they stay here
in the United States, the ties get deeper, and so that is where
you are not going to have them probably come forward, but those
that have been here fewer years I think it would be likely that
they would come forward.
Chairman Cornyn. Mr. Reed, did you have a comment on that?
Mr. Reed. I think there is a way to deal with this. If the
Government chooses, they can engage in industry--I do not think
this should ever be across the board type stuff, it needs to be
a major balanced approach--but from an enforcement standpoint
the Government does have the capability to go into an industry
and bar employment of unauthorized workers. So when it comes
down to a decision point for the worker as to whether or not
they want to come forward, their decision is based on, do I
want to keep my job here, or do I want to leave this job and go
find a job someplace else, and knowing that in due time they
are coming to that industry too.
So the Government--the enforcement has got to be a key in
terms of putting the right kind of motivation in place. The
Government can do it. If you want to stay here, come forward.
If you do not, you had better move on someplace else.
Chairman Cornyn. Let me just ask one last question and have
each of you comment briefly on it, and then we will turn to
Senator Kyl. We have a number of proposals that have already
been made, including a bill that I filed last year. Senator Kyl
and I are working on something that we view as comprehensive
immigration reform.
I would just like for you to comment on whether you believe
that comprehensive immigration reform should include these four
elements. The first would be enhanced border security. The
second would be improved interior enforcement. The third would
be employer accountability. And the fourth would be some guest
worker program that would allow employers to hire people now
for the jobs that they cannot find American workers to fill,
and for which there seems to be an endless supply.
Mr. Hutchinson?
Mr. Hutchinson. I would agree with those four principles. I
think the order is important. I do not think you can start with
a guest worker program and get to border security last. I think
you have to get to border security and then move through each
of those, and I agree with those principles.
Chairman Cornyn. Thank you.
Professor Stock?
Ms. Stock. Senator, I think you have to add some kind of
earned adjustment for the people that are here in the United
States and something to reunify the families. So I think that
is the big barrier to getting this problem under control right
now.
Chairman Cornyn. Thank you very much.
Mr. Reed?
Mr. Reed. I would embrace those principles. I would
probably rephrase them just a little bit. One is to encourage
lawful entry, lawful immigration in the country. Second is
discourage it, and I think we are starting talking about
packages, but that is definitely a border-oriented type thing.
And the other thing is put a lawful worker in every job. And I
think if you do that, I think you end up with a very
comprehensive, workable and manageable plan.
Chairman Cornyn. Thank you very much.
Senator Kyl.
Chairman Kyl. Thank you, Mr. Chairman.
There are so many things I want to ask here, but I am going
to go back to something that I talked about just a little bit
before to see if I can get a little bit more detail.
Would all of the panelists agree with the proposition that
for a guest worker program to work, it is critical that the
documentation of the guest worker both clearly identify the
individual properly, and demonstrate the work status of the
individual, and that it not be counterfeitable easily?
Mr. Hutchinson. Yes.
Mr. Reed. Yes.
Chairman Kyl. So none of the panelists disagree with that
proposition. Now, one suggestion has been a so-called biometric
identifier, which can be fingerprints, a digital facial scan,
an iris scan. Would you all agree that that is a form of
identification that is not easily counterfeited and might be
workable in this kind of a situation?
Mr. Hutchinson. I do, and I think biometrics should be a
part of the identification requirements.
Chairman Kyl. Professor Stock?
Ms. Stock. I think some form of biometric is typically said
to be a good way to identify anybody.
Chairman Kyl. Mr. Reed?
Mr. Reed. I agree with that and I think that that should be
incorporated into the US VISIT program.
Chairman Kyl. Okay. With respect to the documentation, it
could be of course a new Social Security card, it could be some
other kind of identification. It could be a status card like,
for example, people are aware of the green card today for legal
permanent residents. Perhaps there could be a different color
card for temporary residents or whatever.
Let me ask you each about the process for verifying the
breeder documents or the data that goes into this document, and
how concerned you might be that without valid data in, what you
are likely to get out is an invalid status, but now with the
imprimatur of authority because it has been granted as a legal
document. Could you address that issue?
Mr. Hutchinson. Of course we are looking at a temporary
worker type document, so you first start with a foreign worker.
If they are already here in the United States and getting one
of these documents, it is still perhaps a little bit easier to
protect the breeder documents. I am a little bit more
concerned, and I think the Congress has made good progress in
REAL ID requirement, some other movements toward more secure
identification. We can address that here in the United States,
and I would encourage you to give some flexibility. The
Department is really trying to coordinate all of these
registered travelers into some organized system, and they
probably need some flexibility on that.
Our greatest concern would be identifying people overseas
and making sure that we have got the right identification, a
good background, and that is going to take some pressure on
some other governments to help us on that.
Chairman Kyl. Mr. Reed or Professor Stock?
Ms. Stock. I think you are going to have to cooperate with
other countries instead of systems, but other countries do have
systems in place to identify their citizens. In fact, the U.S.
is one of the worst countries as far as that goes. We do not
have any national database of U.S. citizens, and we have bad
problems with breeder documents here in the United States
because of the different variety of birth certificates and
things, many of which cannot be verified.
Other countries though do have national birth registers and
ways that we could identify their nationals if we have the
systems in place to cooperate with their governments.
Chairman Kyl. Mr. Reed, before I call on you. So it would
be important for us then, if we are focused on people who are
asking to come forward as having previously entered the country
illegally, who wish to avail themselves of one of these
temporary worker programs, that they provide us real
documentation with supporting documents from their own country
to provide them the new documents to replace the old ones that
they were using that were clearly invalid, that would be a
necessary part of this program then, I gather; is that right?
Ms. Stock. I think that is true, but I have had good
success as a private attorney in getting people to admit who
they really are and come forward with their false documents.
And when there is a system in place and people know that if
they admit what they have done in the past, they might be
forgiven for it, there is a remarkable ability of people to
come forward and confess to things like that and admit to their
true identity.
Chairman Kyl. Which would make it easier then to make this
applicable to them, right, okay.
Mr. Reed?
Mr. Reed. I think the biggest issue here is that once we
establish their identify, that is their identity forevermore,
and that is done with biometrics. And there will be all sorts
of opportunities to take another look at that identity any time
they encounter social service, employer stuff, whatever, just
like the rest of us. I think getting documents from other
countries is going to be difficult. It should definitely be a
requirement, but as long as we run them through our own
internal databases, criminal databases and terrorist watch
lists, and we are convinced that they are not one of them, I
think we should take whatever identity we get and start from
there.
Chairman Kyl. Thank you very much.
Chairman Cornyn. Senator Coburn.
Senator Coburn. Thank you.
Congressman, you have not been called that in a while.
Mr. Hutchinson. I have not.
Senator Coburn. It is good to see you. I want to tell you,
I picked up from you during these conversations an ordered
sequence of priority, that I think at least people from the
southern part of this country understand is that you cannot do
any of these other things unless you are going to have border
security first, and I am glad to see that.
Are you aware of any transfer of knowledge between the IRS
and DHS on the 9 million false W-2s that are filed every year,
and whether there was any communication between the Internal
Revenue Service on those and given to Homeland Security? Are
you aware of any communication between those two departments
while you were there?
Mr. Hutchinson. No, I am not. That does not mean that is
all encompassing knowledge, but I am not aware of that.
Senator Coburn. I just think, for the record, it is known
that 8 to 9 million false W-2s are filed by employers every
year, and there is a penalty for filing a false W-2, which is a
great source of information on where undocumented workers are.
Many of those are used two, three and four times. None of them
have to do with any one individual, there are four or five
individuals doing it, and it goes back to the false area.
Mr. Reed, we had Mr. Evans testify alongside the head of
the Border Patrol I think our last hearing before we had a
break. And we were talking about technology. I heard you say
earlier that the technology is out there, that if we could
implement the technology that is available today, we could
utilize it, whether it be unmanned vehicles or sensors or
whatever. Is that a true statement? Is the technology available
in this country to help secure this border today?
Mr. Reed. I believe it is. The reason I believe it is is
because I am working with a team of corporations that are
trying to solve that problem in the pursuit of the America
Shield Initiative. I have seen what they have to offer, and I
have been able to make my own assessment as to what that would
provide for the Border Patrol specifically in terms of being
able to do their job.
Senator Coburn. So it is your testimony before us today
that that technology has been perfected, maybe not available,
but is perfected?
Mr. Reed. I am sure the technology gets better and better
every day and there is probably something else that somebody
would want on down the road, but this is just simply a matter
of detecting a target, assessing the threat, tracking and
responding to it. That is it. So if you give the Government,
i.e., give the Border Patrol that capability, the Border Patrol
will be much more capable today than they have ever been.
Senator Coburn. Mr. Chairman, I think it is interesting to
note that when I asked that same question of Mr. Evans, his
response was opposite of that, that technology was not
available today. I think that is part of our problem, it is not
just about resources, it is about whether or not we are going
to apply the technology that is out there today and do it in a
sequential fashion.
That is all the questions I have. I want to thank each of
you for testifying. I know it is not necessarily fun to come
here and do it, and then also wait on us on votes. So I
appreciate you coming, and thank you for your testimony.
Chairman Cornyn. I too would like to thank all of you for
being here and hanging in there with us. You can tell by the
participation of the Subcommittees how important we think this
subject is and how much we value your testimony, what you have
to offer, your expertise. So we hope you will allow us to
continue to stay in communication with you.
We also will, of course, leave the record open until 5:00
p.m. next Tuesday on May the 24th for members to submit any
additional documents into the record or to ask questions in
writing of any of the witnesses.
I know, Senator Kyl, you agree with me that this has been a
very productive panel, and we look forward to working with
these witnesses more as we go forward.
Chairman Kyl. Indeed it has, and in fact, I would just like
to close by indicating there are so many other details that I
really would like to get into that will help us to formulate
our approach to this, and all of you have been very, very
helpful, and I hope we can call on you in the future. And as
you see us come out with ideas, feel free to comment to us
about them. We really appreciate your being here today very
much. Thank you.
Chairman Cornyn. This hearing is adjourned.
[Whereupon, at 4:46 p.m., the Joint Subcommittee was
adjourned.]
[Submissions for the record follow.]
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