[Senate Hearing 109-668]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-668
 
                  COMPREHENSIVE IMMIGRATION REFORM II

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 18, 2005

                               __________

                          Serial No. J-109-42

                               __________

         Printed for the use of the Committee on the Judiciary


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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


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    86
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
    prepared statement...........................................   105
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   127
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Chao, Elaine L., Secretary of Labor, Washington, D.C.............     7
Chertoff, Michael, Secretary of Homeland Security, Washington, 
  D.C............................................................     4
Krikorian, Mark, Executive Director, Center for Immigration 
  Studies, Washington, D.C.......................................    35
Massey, Douglas S., Professor of Sociology, Princeton University, 
  Princeton, New Jersey..........................................    37
Sharry, Frank, Executive Director, National Immigration Forum, 
  Washington, D.C................................................    33

                         QUESTIONS AND ANSWERS

Responses of Michael Chertoff to questions submitted by Senators 
  Grassley, Kyl, Cornyn, Feingold, and Coburn....................    45
Responses of Elaine L. Chao to questions submitted by Senators 
  Kyl, Cornyn, and Feingold......................................    63
Responses of Elain L. Chao to additional questions submitted by 
  Senator Feingold...............................................    66

                       SUBMISSIONS FOR THE RECORD

Chao, Elaine L., Secretary of Labor, Washington, D.C., prepared 
  statement......................................................    68
Chertoff, Michael, Secretary of Homeland Security, Washington, 
  D.C., prepared statement.......................................    78
Embassy of Honduras, Ramon Custodio, Charge d'affaires, a.i., 
  Washington, D.C., letter and statement.........................    88
Faith-based leaders and organizations, joint statement...........    97
Hebrew Immigrant Aid Society, and other national and local Jewish 
  organizations, Washington, D.C., joint statement...............   101
Krikorian, Mark, Executive Director, Center for Immigration 
  Studies, Washington, D.C., prepared statement..................   107
Massey, Douglas S., Professor of Sociology, Princeton University, 
  Princeton, New Jersey, prepared statement......................   129
Moran, Tyler, Policy Analyst, National Immigration Law Center, 
  Los Angeles, California, statement.............................   134
Sharry, Frank, Executive Director, National Immigration Forum, 
  Washington, D.C., prepared statement...........................   140


                  COMPREHENSIVE IMMIGRATION REFORM II

                              ----------                              


                       TUESDAY, OCTOBER 18, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room 226, Dirksen Senate Office Building, Hon. Arlen Specter 
(Chairman of the Committee) presiding.
    Present: Senators Specter, Grassley, Kyl, DeWine, Sessions, 
Cornyn, Brownback, Coburn, Kennedy, Feinstein, Feingold, 
Schumer, and Durbin.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
hour of 9:30 having arrived, the Judiciary Committee will 
proceed with its hearing on immigration reform, one of the most 
important and difficult issues facing the United States today.
    We see a problem with our borders being unprotected. We see 
a great need for labor in this country, both skilled and 
unskilled. We see a certain apathy and resentment toward 
immigrants, notwithstanding the fact that this country was 
built by immigrants and that we need immigrants in order to 
sustain our economic vitality.
    I approach these hearings with a bias of birth because both 
of my parents were immigrants. My father came to this country 
at the age of 18 in 1911, served in World War I. My mother came 
at the age of six with her family, also from Ukraine. I think 
it fair to say that the Specter family has contributed to this 
country as this country has been built by immigrants.
    We take up the consideration of two bills, one introduced 
by Senator McCain and Senator Kennedy, and another introduced 
by Senator Kyl and Senator Cornyn. These bills deal with the 
subjects of enforcement and guest worker programs. The main 
differences between these two bills involve how they would deal 
with undocumented immigrants already in this country.
    When we take a look at the economic facts, the Bureau of 
Labor Statistics report entitled, ``Labor Force Projections to 
2012: The Graying of the U.S. Workforce,'' we see that by the 
year 2012, the labor force in the age bracket of 25 to 34 is 
projected to increase by only three million while those 55 
years or older will increase by 18 million. Chairman Greenspan 
has described an alarming situation on the economic impact of 
an aging American population where the diminishing growth in 
the labor force and the increase in the ratio of elderly 
workers places an enormous burden on the Social Security system 
and the Medicare programs being unsustainable in the long run. 
We see tremendous shortages in skilled workers in health care 
and in construction, plumbers, electricians, and virtually all 
lines.
    The Pew Hispanic Center in a recent report showed that for 
the first time in our Nation's history, the number of illegal 
immigrants coming into this country exceeds the number of legal 
immigrants, so we have a major, major problem on our hands.
    This Committee worked very promptly through the 
Subcommittee chaired by Senator Cornyn and then took the issue 
up at full Committee with a hearing in July. We have been 
interested in pressing ahead and the administration was not 
ready, and I understand that, for the July hearing, with the 
complexities of the issues. A number of us have been at the 
White House, talking to the administration about the 
administration position.
    In mid-October, the Judiciary Committee faces a daunting 
workload. That is, candidly, an understatement with what we 
have done by way of class action reform and bankruptcy reform 
and reporting out an asbestos bill and the confirmation of the 
Attorney General, confirmation of the Chief Justice, and a very 
heavy backlog on controversial and contested Judicial nominees. 
But we are prepared to tackle this matter. It is a matter of 
very, very substantial urgency and the one obstacle, the only 
obstacle to which this Committee will defer is the calendar. 
Unless we can elongate the months of October and November, it 
is hard to see how we can fit all of the square pegs into 
square holes and move forward, but we are determined to do our 
utmost.
    Senator Kennedy is serving as Ranking today because of his 
longstanding interest and we will await his opening statement. 
We pride ourselves here on running on time, so I am going to 
yield back the last 4 seconds of my opening statement--one 
second of my opening statement.
    [Laughter.]
    Chairman Specter. Our first witness today is the 
distinguished Secretary of Labor, who is now in her second 
term. Her resume would take more time than is allotted for her 
testimony, so we will put it into the record, but I have had 
the pleasure of working with her extensively on the 
Appropriations Subcommittee on Labor, Health, Human Services, 
and Education. She is a tireless worker and I want to thank her 
especially for her help on our asbestos reform bill.
    Before beginning the testimony, may I yield to our 
distinguished Ranking Member, Senator Kennedy, with a word of 
praise for his outstanding contribution to the Senate 
generally, but especially in the field of immigration.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much, Mr. Chairman. I want 
to thank you for calling these hearings. This is the second 
hearing. We know the Senate has a very full agenda with a lot 
of very important pieces of legislation, but the whole issue of 
border security and immigration reform is an issue which is of, 
I think, concern not just to areas that are particularly 
adversely impacted, but to the Nation as a whole.
    Senator McCain and I have put forward a proposal, as I know 
other colleagues have, as well, Senator Cornyn, Senator Kyl, 
members of our Committee. Senator Feinstein has been enormously 
interested, as other members of the Committee have been.
    I think, first of all, Mr. Chairman, I don't intend to make 
an extensive statement here, but I think it is important that 
the country understand that, one, this is a national security 
issue. We know that the current system is broken. We know that 
we have spent more than $20 billion over the last 10 years and 
law enforcement in and of itself has not been able to close the 
borders. This is a national security issue.
    Number two, this whole question and issue we are trying to 
resolve, I don't believe will ever be resolved unless we have 
the support of Mexico and the countries of Central America. I 
think we need to broaden this out to be inclusive of these 
countries and they need to understand the importance of having 
not broken borders, but smart borders, that reflect national 
policy. I don't believe we are going to be able, with all the 
electronics and all the law enforcement in the world, to 
function and have an effective system. So we have to include 
those nations. They have to be serious about it and they have 
to be responsive to the leadership here in the United States. 
We are still hopeful that we can work with the President--I am 
sure my colleagues do as well--in developing a bipartisan 
policy that is going to address the issues.
    And third, we know that we are not going to deport the 11 
million undocumented that are here at this present time. It is 
just not fathomable. For any person that is going to speak on 
immigration reform, they have to address that or their proposal 
is not serious. That is a complicated issue. It brings enormous 
emotion.
    Senator McCain and I are not for amnesty. We are not for 
putting anyone at the front of the line. We are not for 
forgiving anyone. But we do believe that there is a process 
that can be developed for those individuals who want to work 
hard, for those people that want to play by the rules, those 
people that want to pay their fine and pay their dues, that 
they can go to the end of the line and through a long period of 
hard work be able to earn the rights here in the United States. 
That is consistent with our long tradition as a nation of 
immigrants.
    This is a complicated question. Just these observations are 
not definitive in terms of an approach. I do favor, as I know 
Senator McCain does, strong law enforcement provisions and 
heightened security arrangements. I am very hopeful that 
perhaps we can all find a way that is going to be responsive to 
the security measures which are going to be necessary. I also 
favor a program that is going to admit temporary workers here 
in the United States through a legal process rather than the 
400,000 to 500,000 that come over the border illegally and 
adjustment of status, which also will give focus and attention 
to our overall national security issues.
    I want to thank you, Mr. Chairman, for having these 
hearings and for giving a focus and attention to an issue of 
enormous importance and consequence to our country.
    Chairman Specter. Thank you very much, Senator Kennedy.
    I am advised that the witnesses and the administration 
prefer to have the order inverted and to start with the 
Secretary of Homeland Security, Hon. Michael Chertoff. He 
brings to this position an outstanding record academically. He 
was a U.S. prosecutor for more than a decade, Assistant 
Attorney General in the Criminal Division, Court of Appeals for 
the Third Circuit, and now leaving that lifetime appointment to 
be Secretary of Homeland Security.
    Thank you for joining us, Secretary Chertoff, and we look 
forward to your testimony.

STATEMENT OF MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, 
                        WASHINGTON, D.C.

    Secretary Chertoff. Thank you, Mr. Chairman, and thank you, 
Senator Kennedy and other members of the panel for the 
opportunity to appear here to discuss vital issues of border 
security, interior enforcement, and immigration reform as a 
whole.
    Later today, the President is going to sign the DHS 
appropriations bill into law, and thanks to Congress, DHS now 
is going to have substantial additional funds to spend on 
critical border security and enforcement initiatives.
    As you pointed out, Mr. Chairman, over the last several 
months, members of the administration have talked to a lot of 
Members of Congress about comprehensive immigration reform. We 
have benefited greatly from the input we have received and we 
appreciate your support and your focus as we move forward on 
this very, very important item on the national agenda.
    Ever since the President's first inauguration, he placed 
increasing importance on border security and has devoted 
significant resources to this challenge. The President 
believes, and I agree, that illegal immigration threatens our 
communities and our National security. The fact of the matter 
is that the ability of undocumented individuals to enter our 
country represents an obvious homeland security threat. 
Flagrant violation of our borders undercuts the rule of law, 
undermines our security, and imposes special economic strains 
on our border communities. When we don't control our borders, 
we also risk entering into the U.S. of terrorists or criminals 
who want to do us harm.
    There is also a humanitarian dimension. Migrants who rely 
on coyotes, human traffickers, and smugglers are often robbed, 
abused, and left for dead on their illegal trek across our 
borders, so we have to, from a humanitarian standpoint, as 
well, address this critical situation at the border.
    The fact of the matter is that ending illegal immigration 
is going to require three pillars. It is a three-legged stool. 
It requires tough enforcement at the border, tough interior 
enforcement, and a temporary worker program to deal with the 
very real draw that the need for labor is exerting on migration 
across the border.
    Now, Secretary Chao is going to discuss the temporary 
worker program in more detail in a few moments, but I do want 
to say this from an enforcement standpoint. Without a temporary 
worker program, we have two huge strains on our current 
immigration enforcement system: First of all, the high employer 
demand which draws people into the country; and second, the 
active participation of eight million undocumented workers in 
the U.S. economy. In order to have an effective border security 
and interior enforcement program, we have to have a workable 
and enforceable temporary worker program to lift some of the 
strain off two of the legs of the stool. We think that a well-
designed temporary worker program will provide legal channels 
for U.S. employers and foreign-born workers to match needs in 
the best interest of the U.S. economy and without 
disadvantaging workers.
    Once we have this in place, of course, it is critical that 
we couple that program with a tough enforcement strategy, and 
we have already begun that strategy. We have begun to plan it 
and we have begun to implement it as part of our responsibility 
to protect our country.
    Since the President took office, the U.S. Government has 
deported several million illegal migrants, including 
approximately 300,000 criminal aliens. And since 9/11, yearly 
spending has increased by $2.7 billion, 58 percent. Yearly 
spending on immigration enforcement has also increased 
dramatically and enforcement expenditures have gone up by $1 
billion. Every day, our Department agencies take significant 
steps to secure our borders. The U.S. Customs and Border 
Protection Agency has over 11,000 Border Patrol agents along 
the 6,000 miles of Northern and Southern border. An additional 
18,000 CBP officers are posted at our ports of entry and 
Immigration and Customs Enforcement has over 8,000 agents and 
officers working to apprehend criminals, absconders, and other 
individuals illegally in the United States. And, of course, the 
United States Coast Guard also plays a critical role in 
securing our land and sea borders.
    Let me give you some staggering statistics. In fiscal year 
2005 alone, Border Patrol agents made over one million 
apprehensions and CBP field operation officers stopped more 
than 600,000 aliens attempting to enter our ports of entry. In 
the same period, Immigration and Customs Enforcement 
apprehended approximately 140,000 illegal aliens in interior 
enforcement operations, including 15,000 under its Fugitive 
Operations Program. ICE also executed removal orders for over 
160,000 aliens who had been placed in proceedings, and of 
those, 84,000 had criminal records. That is both a 
demonstration of accomplishment, but also an indication of the 
magnitude of the challenge.
    Now, even in the last month, as the Department was very 
busy coordinating the response to Hurricane Katrina, we have 
continued to move forward aggressively on the issue of border 
security. Last month, after Congress had enacted legislation 
authorizing me to do so, I authorized the elimination of 
environmental challenges which were holding up completion of 
the 14-mile border infrastructure system near San Diego, which 
I know many will remember as being a very grave source of 
concern to people in San Diego and surrounding communities. 
That was a step that had languished for almost a decade.
    Recently, also in this last month, we have obtained a 
Predator B unmanned aerial vehicle, which is a follow-on to a 
pilot program we ran last year, to enhance our ability to 
secure the Southwest border. We are currently partnering with 
the Defense Department as part of their training programs to 
use their UAVs to give us additional ability to see what is 
going on the ground.
    Also importantly, with funds appropriated by Congress 
earlier this year, we have begun to hire and have already begun 
graduating 1,500 new Border Patrol agents for deployment along 
the entire border. As we speak, there are 400 Border Patrol 
agents training at the academy in Artesia, New Mexico, and I 
look forward later this week to addressing them when I go down 
there on Thursday.
    So we are grateful to Congress for providing this function. 
I want you to know we are moving very rapidly to deploy these 
assets and to take other additional steps.
    Let me just take one moment to indicate that this is really 
part of a comprehensive strategy, because although we have 
taken significant action, this is a system desperately in need 
of repair, and the fact of the matter is, people are rightly 
upset and distressed about the prospect that we do not have 
control of our border the way we should and that when we 
apprehend people, they wind up getting released because we 
don't have a sufficient ability to remove them. So we are very 
focused along the entire continuum of the system to make sure 
we are working every lever of power and every resource that we 
have to make this work more quickly and more efficiently.
    I have to say, in one respect, I want to--since the 
question of Mexico was raised--I want to thank the Mexican 
officials for the cooperation we have gotten from them in 
dealing with organized smuggling groups through information 
exchange and joint targeting. That is going to be very helpful.
    But I also think we need to look at the whole system across 
the board, and I have a couple of charts that will illustrate 
this.
    Chairman Specter. Mr. Secretary, how much more time do you 
think you will need to finish your presentation?
    Secretary Chertoff. Two minutes, if that would be OK, Mr. 
Chairman.
    Chairman Specter. That would be fine.
    Secretary Chertoff. What I want to indicate is when we 
think about the issue of apprehensions, we see that 55 percent 
of those apprehended are those who come--a little more than 55 
percent are those who come between the borders. But a 
significant number, the remainder, are those who are 
apprehended at the ports of entry.
    Now, with respect to those caught between the borders, when 
they are Mexicans, they are all returned. They are not 
released. They are simply sent back across the border. But, of 
course, it is not quite that easy with respect to non-Mexican 
illegal aliens and that category is approximately 11 percent. 
What you will see if you look at the narrow slivers on the pie 
charts is that we have been--out of 160,000 non-Mexicans that 
we have apprehended, 40,000 have been returned and 120,000 have 
been released. That is unacceptable and we are going to change 
that starting immediately.
    The key here is to change the amount of time that it takes 
to move people out of detention, get them back to their 
countries, and also have additional beds so that we can detain 
people. That is not only important because we don't want to 
release them in the community when we have apprehended them, 
but because we need to deter people from coming across the 
border. If they think that they can come across and get 
released, they are going to keep coming, and we have got to 
change that.
    The next chart is going to show something that we have done 
with respect to one program, and then, I think, Mr. Chairman, I 
will stop. We had an operation called Texas Hold `em which we 
ran in the McAllen Border Patrol Sector during the course of 
this summer and this had to do with a focus on Brazilian 
nationals, which was the largest category of non-Mexican 
illegal migrants who were coming across the border. When we 
started this program in June, if you look at the comparison 
between apprehensions and removals, you will see there were a 
lot of apprehensions and comparatively few removals.
    As we allocated additional bed space to this program, we 
actually increased the percentage of removals in comparison to 
apprehensions, but more important, we reduced the number of 
apprehensions because very quickly, Brazilians got the idea 
that if they came up through Mexico and they got caught, they 
weren't going to be released through the community but they 
were, in fact, going to be held and returned, and I think that 
is a key finding in terms of our ability to manage this border 
enforcement.
    As I am happy to expand upon in greater length, doing this 
is going to require addressing all parts of the process. It is 
going to be increased beds. It is going to involve working with 
foreign governments to have them move more quickly to take 
people back to their home countries. It is going to require 
cutting some of the transaction costs and time that we spend. 
But I think if we do it, we can get this job done.
    So with this experience and, of course, with the three-
legged stool of a comprehensive approach, I am confident we can 
finally give the American people what they are entitled to get, 
which is control over the borders that works efficiently and 
that is also consistent with our American ideals.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Secretary Chertoff.
    [The prepared statement of Secretary Chertoff appears as a 
submission for the record.]
    Chairman Specter. We turn now to Secretary Chao, Secretary 
of Labor, in her fifth year, having served the President since 
his election. Secretary Chao came to this position with a very 
extensive background in government. She was Deputy Secretary 
for the Department of Transportation, Deputy Maritime 
Administrator. Before that, she had been the President and CEO 
of the United Way of America. She has a very distinguished 
academic career from Holyoke and an MBA from the Harvard 
Business School.
    Thank you for joining us this morning, Secretary Chao, and 
the floor is yours.

 STATEMENT OF ELAINE L. CHAO, SECRETARY OF LABOR, WASHINGTON, 
                              D.C.

    Secretary Chao. Mr. Chairman, Senator Kennedy, and members 
of the Committee, thank you for the opportunity to testify 
today on the President's plan for comprehensive immigration 
reform. As challenging as this issue is, we can all agree that 
America needs an immigration policy and a system that 
effectively secures our borders and serves our economy, and the 
President's proposal does both.
    A workable, enforceable temporary worker program must be an 
essential part of any comprehensive strategy to secure our 
nation's borders. By addressing the economic forces that drive 
immigration, we can meet employers' needs for workers, provide 
appropriate legal channels for foreign-born workers to access 
opportunity, and allow enforcement resources to be targeted on 
the critical mission of border security.
    Last year, the President laid out a comprehensive vision 
for securing our borders and also meeting our work force needs, 
and today, we will be discussing the President's plan in 
greater detail as a result of extensive policy discussions 
within the administration and with many of you.
    First and foremost among the principles the President 
outlined is protecting the homeland. An effective temporary 
worker program will allow our country to meet its needs for 
temporary, legal, foreign-born workers while enabling U.S. 
enforcement to focus aggressively on achieving control of our 
borders, punishing those who continue to employ workers 
illegally, and intercepting and removing workers who violate 
the temporary worker program requirements.
    Now, many of you are familiar with the other key elements 
of the President's plan, but let me briefly outline them. We 
need to serve America's economy by matching willing workers 
with willing employers in a clear, efficient, and timely 
process. We need to ensure that violation of our immigration 
laws is not rewarded by giving illegal immigrants an advantage 
over those who follow the rules.
    We should create incentives for temporary workers to return 
to their home country after their work visas end, and we should 
also encourage and enable those who are currently living in the 
shadows an opportunity to come forward and participate in a 
temporary worker program.
    Under the President's principles, those who are currently 
here illegally would have to pay an up-front fee, or fine, in 
order to receive a temporary worker visa. They would not be 
granted amnesty and they would not be rewarded with an 
automatic path to citizenship. In addition, felons and those 
currently in removal proceedings would be barred from the 
temporary worker program.
    This administration envisions that this new temporary 
worker program would replace the current H visa programs for 
low-skill workers. Today, these H visa categories are too 
complicated, too complex, too cumbersome, and too confusing. In 
fact, every year, the Department receives hundreds of requests 
from Members of Congress petitioning us to reclassify workers 
into categories whose quotas have not been filled. Let me note, 
however, that this new temporary worker program does not 
include the H-1B program for high-skilled workers.
    As we go through the process of designing a program to 
secure our borders while meeting our Nation's economic needs, 
we will continue to look to the expertise and the wisdom of the 
Congress. I know that several members of this Committee are 
deeply interested in pursuing rational and fair immigration 
laws and reforms, and some of you have also introduced bills 
outlining significant changes to the current system.
    Reforming our temporary worker program is a difficult and 
complicated undertaking, but I am confident that reforms will 
be enacted to protect homeland security, restore the rule of 
law, serve the economic needs of our nation, and also honor our 
Nation's history of openness and opportunity.
    With that, I am now pleased to answer any questions that 
the Committee may have.
    Mr. Chairman, I have a longer statement which I would like 
to submit for the record, if I may.
    Chairman Specter. Secretary Chao, your full statement will 
be made a part of the record, as will all statements of all 
witnesses.
    [The prepared statement of Secretary Chao appears as a 
submission for the record.]
    Chairman Specter. We will now proceed with 5-minute rounds 
by all the members.
    Secretary Chertoff, with respect to the efforts to protect 
the border, our Southern border alone consists of 1,500 miles. 
Our Northern border with Canada approximates 3,000 miles. How 
do we realistically approach that issue to secure the border? 
Is it physically possible?
    Secretary Chertoff. I think it is, Mr. Chairman, if you 
look at it as a system, and it is going to require a number of 
pieces that have to fit together.
    Obviously, you need additional Border Patrol agents, and we 
have gotten 1,500 that we are going to deploy this year. It 
requires some additional infrastructure. I am not suggesting a 
fence across the border. There are places where vehicle 
barriers or fencing or lighting or sensors actually does make a 
huge difference in terms of being able to deploy Border Patrol 
agents rapidly in order to intercept people coming across the 
border.
    The third is high-tech. I mean, the ability to use UAVs, 
even satellites to give you a picture of what is going on over 
a large area of desert is very important in terms of, again, 
allowing us to leverage our resources.
    But you also have to look at the back end. The fact of the 
matter is that illegal migrant organizations are very sensitive 
to incentives and disincentives, as the Texas Hold `em 
experience shows. If we catch people and we release them, we 
are sending a very bad message out, and the message is--
    Chairman Specter. Without going into that, I would like you 
to supplement your answer. The infrastructure you describe is 
important. Increased Border Patrol is important. But give us a 
program as to how you really are going to tackle 1,500 miles of 
the Southern border and 3,000 miles of the Northern border.
    One followup question on the same line before turning to 
Secretary Chao, the GAO released a report this year that 
immigration custom enforcement is devoting more attention to 
preventing terrorism and less attention to illegal immigrants. 
Now, obviously, catching terrorists is more important than 
stopping illegal immigrants from coming into the country. Are 
the resources at hand--and I know the President is signing the 
appropriation bill this afternoon--are the resources at hand 
sufficient to devote to the terrorist problem and still have an 
effective program against the illegal immigrants?
    Secretary Chertoff. I believe, Mr. Chairman, that they are. 
The enhanced resources that Congress has given us are going to 
be tremendously helpful in doing both.
    One thing I do want to point out is that in doing, for 
example, our worksite enforcement program, we have focused--we 
have really pursued both goals. We have focused on critical 
infrastructure. We have focused on those people who are 
absconders, where there is a national security interest there, 
there is some reason to believe they may be affiliated with 
terrorists or criminality. So we have actually been able to 
pursue both of these goals in a single program and we will make 
good use of the additional resources that Congress has 
appropriated to us for these purposes.
    Chairman Specter. Secretary Chao, in August of this year, 
you highlighted the need for health care workers, saying that 
by the year 2012, our country will need more than 3.4 million 
new health care workers. We have seen a need in the 
construction industry, skilled tradesmen. How do we effectively 
and practically take steps to see to it that available U.S. 
workers are given priority and that there is sufficient 
publicity going to people who may be in the United States, or 
who are in the United States who may be in a position to fill 
these jobs?
    There is a great deal of resentment which continues as to 
immigrants. Somebody speaks a little differently, answers the 
telephone, there is sort of an innate hostility, and that, of 
course, is aggravated by the contentions that people are being 
brought in to take jobs which really ought to go to people in 
the United States. So what is the practical answer as to how 
you be sure that there are no U.S. workers available to handle 
the jobs and yet accommodate these areas of real need?
    Secretary Chao. The President's proposal addresses this 
issue because the President is very concerned about making sure 
that willing workers are indeed given the opportunity to work 
for employers. In the President's proposal, the process of 
labor certification still goes forward. The employers will 
still have a responsibility to make sure that they are 
advertising and that they are searching for American workers 
first at an actual wage that would make it possible, again, for 
American workers to have, if you will, the first chance at 
these jobs.
    Only after the employer, with input from the Department of 
Labor, finds that it cannot hire adequate U.S. workers then can 
it turn over to hiring a temporary worker who is currently in 
the country or perhaps a temporary worker who is not in the 
country currently. There are different procedures for both 
categories.
    Chairman Specter. Thank you very much, Secretary Chao. My 
red light went on after you started your answer, so I will 
yield at this point to Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Secretary Chertoff, both you and Secretary Chao have said 
that border security and interior enforcement must be closely 
tied to legal avenues for workers needed by our economy, but 
others disagree and want Congress to pass just a border 
security and interior enforcement bill before it turns to the 
question of immigration reform, including temporary worker 
visas. As the head of Homeland Security, why do you take that 
position?
    Secretary Chertoff. I think you have to look at the issue, 
Senator, as a three-legged stool. It is unstable if you only 
have one or two of the legs. The fact of the matter is, there 
is tremendous pressure on the border--
    Senator Kennedy. What do you mean by unstable, I mean, in 
terms of Homeland Security?
    Secretary Chertoff. It would be enormously difficult if we 
were to attempt to control illegal migration at the border 
without having some legal avenue to address the fact that there 
is a high demand for non-U.S. people to come in and perform 
certain kinds of jobs and there is a tremendous desire of those 
people to come in.
    Most of the people who come across the border are not 
coming across to do us harm. There is some percentage who are 
criminals and maybe a smaller number who are potentially even 
worse than criminals. But the fact of the matter is, we have to 
deal with them all equally and the ability to do interior 
enforcement and border enforcement is stretched well beyond the 
limit if we have to treat everybody as if they are somebody who 
has to be the subject of an enforcement action.
    If we can channel people into regulated approaches to work 
where we satisfy the demand for the labor through legal 
channels, where people who want to work and do us no harm get a 
legal avenue to do so, that relieves a tremendous amount of 
pressure. We will still have a big challenge, but we will now 
be able to apply it against a smaller pool of people that are 
coming across.
    Senator Kennedy. Also, what is your own view? Do you think 
our government, even if we had the resources, could have mass 
deportation of the eight to ten million undocumented here? Is 
that even conceivable or desirable, and are there any estimates 
in terms of what those costs would be, both in terms of dollars 
as well as the economic implications and importantly in terms 
of human conditions? What would happen?
    Secretary Chertoff. I think it would be hugely, hugely 
difficult to do this. First of all, obviously, a lot of these 
people would not want to be deported. We would have to find 
them. That would be an enormous expenditure of effort and 
resources. We would then have to process them and remove them. 
They would have legal resource. I can't even--I think we are 
talking about billions and billions and billions of dollars to 
do it, I think. This is an area where practical concerns are 
really paramount.
    Senator Kennedy. I am going to come, Madam Secretary, to 
you in just a minute. I want to ask the Secretary, a number of 
Senators wrote you earlier this week concerned about the recent 
DHS actions to impersonate OSHA officials, safety officials. Do 
you want to make a comment on it? This is where they 
impersonated OSHA officials. They bring workers in allegedly to 
get training in terms of safety at the workplace. I mean, I 
think particularly of Katrina with all the cleanup there. Then 
there was a sting operation and a number of these people were 
arrested. That has all kinds of implications, obviously, in 
training and safety. Just a quick reaction.
    Secretary Chertoff. I think that was a bad idea and I have 
directed it not happen again. I am not saying we don't use 
ruses. It is appropriate to use ruses. But I think a ruse that 
involves safety or health is not appropriate.
    Senator Kennedy. OK. Madam Secretary, I want to hear from 
you, too, your sense about why we think legal avenues for 
workers must be tied to enforcement measures. I think of it in 
two areas. One, obviously, in the heightened border, but also 
we move on toward the temporary worker program that is going to 
provide legal means for these workers. There will also have to 
be enforcement of those that are going to hire illegal workers 
or otherwise we are going to have the economic kind of 
conditions that have been described by the Chairman.
    Secretary Chao. Well, I agree with Secretary Chertoff. If 
we are going to patrol our borders effectively, having some way 
to gauge who is coming across our borders must be an essential 
part of that strategy. And again, to have a workable, 
enforceable temporary worker program will go a long way to 
securing our borders. We have got to know who is coming across 
our borders, and if we have a program that will legally be able 
to track people coming over the borders, more resources can be 
more effectively utilized by the Department of Homeland 
Security to carry out its important functions of securing our 
borders.
    Senator Kennedy. My time is up. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kennedy.
    Senator Cornyn? We are proceeding under the early bird 
rule.
    Senator Cornyn. Thank you, Mr. Chairman, and I would ask 
that my written statement be made part of the record.
    Chairman Specter. Your full statement will be made a part 
of the record.
    Senator Cornyn. Thank you.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Senator Cornyn. Secretary Chertoff, let me ask you about 
expedited removal. You went over a little bit of that in your 
opening statement, but it seems to me that unless we are going 
to build literally tens of thousands of detention beds, we are 
going to be back in the same old catch-and-release soup that 
you explained is intolerable.
    Right now, to remove an alien who comes into the country, I 
think other than through the expedited removal process, the 
average is about 89 days. That is cut down considerably, but 
still remains roughly 30 days under an expedited removal 
process, which means you still have to have some means of 
detaining those individuals.
    Could you describe to the Committee what legal measures and 
diplomatic measures, what other measures that you believe that 
we can effect that will cut that down even further so we don't 
have to build tens of thousands of detention beds to make the 
deterrence at the border real.
    Secretary Chertoff. I would be delighted to, Senator. I 
actually have another chart, and this is my last one. I think 
you have put your finger on exactly the issue. It is an issue 
of how many days you occupy a bed. The fewer days, essentially, 
you increase the number of beds.
    We have now put expedited removal in place across the 
entirety of the Southern border, so we are using it everywhere, 
and its principal significance is with respect to non-Mexicans 
because they can't simply be immediately sent back to Mexico.
    You will see that there is an average of a 34-day cycle 
time now, but a lot of it is taken up with what I would call 
bureaucratic churn. In other words, we have got an average of 
20 days to obtain travel documents from foreign governments. We 
ought to be able to cut that down in half or to a quarter. We 
have had 12 days to arrange for country clearance, escort, and 
schedule air transportation. I have spoken to Secretary Rice. 
We are working on dramatically cutting the time for country 
clearance. We are working on a plan now to cut the number of 
escorts we need for people who aren't dangerous and we are 
working on a way of getting an increase in air transportation.
    If we could cut this in half, we would essentially double 
the number of beds. That is exactly what we are underway trying 
to do right now.
    Senator Cornyn. Do you believe that with the 20 days it 
takes to obtain travel documents from foreign governments, are 
we seeing any foot-dragging by foreign governments when it 
comes to cooperating in the return of their citizens?
    Secretary Chertoff. We do. Some countries are very helpful 
and forthcoming. Others do tend to be a little dilatory or 
resistant. One thing, for example, we have suggested doing is 
instead of having in-person consular visits, we will do video 
conferencing so we don't have to wait for 5 days for a consular 
person to come. They can just do it over video conference.
    At the end of the day, we will probably have to lean pretty 
heavily on some foreign governments to make sure that they are 
willing to take back people from their own countries. I have 
made suggestions. We are willing to have foreign countries send 
people over here to help us in terms of travel documents. We 
are willing to use any and all techniques possible to expedite 
this. I am hopeful that most countries will be responsive and 
live up to their responsibility, but in the event that some 
don't want to, I think we do have to push them to do it.
    Senator Cornyn. I am very glad that you have seen fit to do 
expedited removal across the entire border, but I am very 
concerned that that number of days it takes to accomplish that 
is still high. I would just point out in the last minute I have 
in this round, the Congressional Research Service makes a good 
point that there are a lot of people watching what we are doing 
along the border, which has a big impact on deterrence and our 
ability to control who comes into our country and determine why 
they are here.
    They report that U.S. OTM procedures appear to have been 
disseminated widely, for example, in Brazil. This may be due in 
part to the Brazilian soap opera entitled, ``America,'' which 
follows a young woman's illegal journey to the United States 
through Mexico and has drawn a nightly viewing audience of some 
40 million people. According to the Border Patrol, the 
Brazilians seem to know the process and it seems to be common 
knowledge that they won't be immediately deported. So I think 
that is further support, if we needed it, for your conclusion 
that our catch-and-release program is really contributing to 
our problem and our lack of effective deterrence and it is 
absolutely critical that we work hard on that.
    Thank you.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I want to associate myself with Senator Cornyn's concern 
about in the ``other-than-Mexican'' category.
    I also want to agree with you that these figures are 
unacceptable. I have been looking at them and it is hard to 
believe this total, which is 1.7 million in just one fiscal 
year. It used to be that for every one person apprehended, the 
Border Patrol would assume that three got through. Is that 
still the case?
    Secretary Chertoff. I have to say, I have never understood 
that reasoning and it seems ultimately self-defeating for the 
following reason. If that were true, then if we stopped 
apprehending people, three times zero is zero. We could assume 
no one was coming across the border. That is obviously foolish.
    Senator Feinstein. What do you assume? What--
    Secretary Chertoff. I assume there is some significant 
number getting through that we are not catching. I don't think 
a formula captures it. One way we can measure it is by looking 
at some collateral indications. We can look at the number of 
times we continue to see the same people coming back and back, 
over and over again, because we do have fingerprints. After--
    Senator Feinstein. What is that number?
    Secretary Chertoff. I don't have--I think it usually hovers 
around 40 percent, mostly, I think, Mexicans.
    Senator Feinstein. So you would add 40 percent of 1.7 
million on top of this?
    Secretary Chertoff. I would hesitate, Senator, to give you 
a number. I mean, it would be a wild guess. I am sure--
    Senator Feinstein. Could I get those numbers, please?
    Secretary Chertoff. Sure.
    Senator Feinstein. Let me just move on, and let me just 
give you my observation, and to Secretary Chao, as well. I may 
be very wrong, but it seems to me that all the talk about the 
guest worker program actually spurs illegal immigration. I have 
seen no guest worker program that I, representing California, 
could vote for in good conscience that I believe would not be a 
major magnet.
    Now, I have served on the Immigration Subcommittee for 
about 13 years and looked at it as it affects my State. We have 
a very large number of illegal workers in our State, many of 
them very good, all of them living in the dark of night, many 
of them here for as much as 20 years. In my view, we ought to 
find a way to be able to take people who have lived here 
without any criminal activity, been good citizens, worked hard, 
particularly in areas where there is need, which in my State it 
is agricultural, and be able to give them some kind of official 
temporary status provided for a period of time they would 
continue to work in agriculture. I prepared some legislation 
along that line, which at an appropriate time I would 
introduce.
    But I just want to say to you that from California, that is 
my view. There is no shortage of willing workers, Secretary 
Chao. There is an abundance of willing workers. The problem is 
their status. I think Secretary Chertoff is right that we have 
got to enforce the borders, and I was wondering if you could 
give us a brief progress report on the border fence.
    As you know, we appropriated the money. You used the Real 
I.D. Act to cut environmental reviews. What is the current 
status and how are you working to make the necessary 
environmental protections?
    Secretary Chertoff. One of the things I did do is we had, 
in the course of negotiating back and forth during the 
environmental litigation, committed ourselves to an approach 
that we thought was respectful of the environment, although it 
wasn't necessarily everything that everybody who opposed the 
fence on environmental grounds wanted. We are committed to 
continuing with those undertakings. In other words, we are 
going to voluntarily comply with what experts that we think are 
good thought was appropriate.
    Now it is really in the hand of the builders. I don't know 
if it is the Army Corps of Engineers that is going to do it or 
somebody else. I can find out for you, Senator. But the green 
light has now gone forward to build this remaining piece of 
infrastructure and I am convinced not only will it be better 
for our border, it will be safer for our Border Patrol agents 
and actually it is going to help the environment because it is 
going to stop people from coming across illegally, and that 
tends to have a bad environmental impact of its own.
    Senator Feinstein. I would like to ask you about, and this 
is really not your problem but it is a problem and you are 
there, Senator Brownback and I cosponsored a bill called the 
Unaccompanied Alien Child Act. It was voted out of this 
Committee in April. Some of the Departments indicated they had 
some concerns. We have tried very hard to negotiate with them. 
We have been stonewalled all the way and I find this really 
unacceptable.
    I think Justice has taken the lead. I met with the Deputy 
Secretary of HHS that was in charge of children and families. 
We said we would submit some amendments which we thought might 
help the administration. We can't get any response. It has gone 
from April to October. We have at any given time maybe 5,000 
children are here unaccompanied. Some are locked up. How they 
actually are treated is unacceptable and we would like to get 
this bill moved. Can you help us?
    Secretary Chertoff. I will certainly--I know there are a 
number of Departments involved. I will certainly find out where 
we are with it. I mean, I don't know, there may be some 
elements of the bill that there are going to be some objections 
to, but we certainly ought to get back to you and let you know 
what issues there are and if they can be addressed, that would 
be great. So I will do that for you.
    Senator Feinstein. I appreciate that. Thank you. Thank you, 
Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    First, Secretary Chertoff, do you have a program for 
speeding up the training of Border Patrol agents, since we now 
have authorization and appropriations for training 1,500, 
actually, for next year?
    Secretary Chertoff. I know we can handle in terms of 
capacity the 1,500 we are talking about. I don't know that we 
have condensed the process of training. The one thing I--
because I did raise this issue with the Border Patrol--the one 
thing I did want to be careful about is part of the time it 
takes is an enculturation process to make sure that the Border 
Patrol agents are enculturated to what they need to do to 
function in an environment in which they are often by 
themselves. We want to make sure that they are properly 
disciplined, that they are resistant to the potential for 
corruption, because that is always an issue at the border--
    Senator Kyl. I have some things I want to get into more 
than that. I know there has been a bottleneck that at least was 
alleged to have precluded us from training substantially less 
than 1,000. What you are saying is that we do have the capacity 
to train 1,500 for the next year?
    Secretary Chertoff. Correct.
    Senator Kyl. Thank you. Now, the Senator from Massachusetts 
talked about mass deportations. I just wanted to ask you, does 
the proposal that the administration is suggesting involve mass 
deportations at all?
    Secretary Chertoff. No.
    Senator Kyl. You are familiar with bills that have been 
introduced in the Senate. Are either of you familiar with any 
bills in the Senate that would require mass deportations?
    Secretary Chertoff. No, I don't understand that they 
require mass deportations.
    Senator Kyl. OK, thank you. Nor am I. Third, the reasons 
for temporary workers, it seems to me, are twofold, and I would 
like to get both of you to comment on this. One is included in 
your statement, Secretary Chao: if these workers are permanent 
rather than temporary, then one could easily argue that it 
represents amnesty because it would allow them to remain in the 
United States while seeking legal permanent residence, 
something that people who are following the law cannot do. They 
must apply for that in their home country.
    And second, and it seems to me this is really critical, we 
are in a good employment situation right now, full employment, 
essentially. We have a very good economy right now in the 
United States. But I can remember not too long ago that we 
didn't have a good economy and we had relatively high 
unemployment, and clearly, those cycles will continue 
throughout our future.
    With temporary foreign workers, you can calibrate, you have 
the flexibility to calibrate the number of workers to the slots 
that are needed. In case of an economic downturn, you don't 
have to issue as many permits for foreign workers because there 
aren't as many jobs. But if all the people who are illegally in 
the country today are allowed to remain here on a permanent 
status, you don't have that same flexibility in the event of a 
downturn and this, it seems to me, argues against granting 
permanent legal status to all of the illegal immigrants who are 
here today. I would like to get both of you to comment on that 
observation.
    Secretary Chao. First of all, the President is very 
concerned about controlling our borders, serving the American 
economy by matching willing American workers with unfilled 
jobs.
    On the permanent status, the President's proposal would 
have a 3-year stay, which can be extendable for another 3-year 
stay. The total would be 6 years, at which time the worker 
would have to return back to their home country and apply. That 
is if the worker is already here in the United States. So the 
President's proposal does not anticipate amnesty or a pathway 
to citizenship. So that is not the intent.
    Second of all, the President is very concerned about the 
American worker and that is why his plan says that American 
workers come first and employers must determine that no 
American worker is available to fill a job before offering that 
position to an immigrant worker.
    Senator Kyl. Secretary Chertoff, any other thoughts?
    Secretary Chertoff. I don't think I have anything to add to 
that.
    Senator Kyl. OK. It seems to me that the real key, once we 
have done a better job to control the border and instituted a 
legal worker program that meets the objectives, Secretary Chao, 
that you pointed out, and frankly, those objectives are 
embodied in the two major bills that have been introduced in 
the Senate, even though they approach it somewhat differently, 
but the real key is enforcement at the workplace. If you can 
enforce the law at the workplace, if employers have the means 
of identifying people and they can check that through a 
governmental source and that governmental source can then audit 
the employers and verify that people are not being employed 
illegally, then we are not likely to have a lot of illegality, 
amnesty. We are going to have a rule of law that has once again 
characterized the employment of people in this country.
    Would both of you agree that it is really critical that we 
have workplace enforcement that is as close to perfect as we 
can get it, anyway, that that is the key to this issue?
    Secretary Chao. I would certainly agree with that. Most of 
the responsibility for employer sanctions is over at DHS.
    Secretary Chertoff. I do agree and I think that that means 
we need to be more efficient in allowing employers to verify. 
Right now, I have to say I am kind of appalled to say this, 
that I think when you get a ``no match'' letter from Social 
Security, apparently the employer proceeds at his or her peril 
in terms of taking further steps to find out what is going on 
because the law is so confused. If you want people to obey the 
law, I think it is kind of fundamental you let them know how to 
do it, and I think that is one of a number of things we need to 
change in order to make workplace enforcement a real reality.
    Senator Kyl. Thank you very much.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
both of you Secretaries for testifying here today.
    I have two questions, really both aimed at Secretary 
Chertoff. The first is very timely. It is the PATRIOT Act 
reauthorization to first responder funding formulas. As you 
know, we have a bipartisan coalition of Senators, Senator 
Cornyn and Senator Feinstein among them on this Committee, to 
try and persuade conferees to retain the Lowey-Sweeney 
bipartisan language which was passed as part of the PATRIOT 
Act. You have always said that you, and the administration 
position is to make it more needs-based. The House does a 
considerably better job than the Senate.
    So what I would like to ask you today is what you are 
willing to do to try and weigh in on the conference. In the 
past, Homeland Security--before you came in, it is not at your 
desk--would say, oh, yes, we are for needs-based, and then 
never mixed it in at all and we didn't get a needs-based 
formula. Would you be willing to lobby some of the Senators? 
The House is united. It only had 40 votes against it. The 
Senate is more divided. Would you be willing to lobby some of 
the Senators personally and ask them to go along with the House 
formula? What can we do? And I only ask this out of 
frustration, because in the past, your predecessor would speak 
about it and then we would ask them to get involved and mix in 
and they were absent.
    Secretary Chertoff. I would make sure I get involved in a 
way that doesn't get me in trouble with the law or anything. 
But I have been unequivocal and I will continue to be 
unequivocal in supporting risk-based funding and I will be 
happy to use every legal and appropriate means to communicate 
that to--
    Senator Schumer. When I say lobbying, I don't mean you 
would be hired by somebody.
    Secretary Chertoff. Right. I mean, I just get nervous. I 
have been reading the paper--
    Senator Schumer. You have been hired by the President and 
this is his viewpoint.
    Secretary Chertoff. And I know there are some--well, 
without getting hyper-technical about it, I will--every 
appropriate means to convey my passionate belief that we need 
to be as needs-based as possible.
    Senator Schumer. And it is the administration's position 
that the House bill is more risk-based than the Senate bill 
and, therefore, preferable, the House formula?
    Secretary Chertoff. I think the administration's position 
is the more risk-based we get, the better we are.
    Senator Schumer. And the House bill is, in your opinion, 
more risk-based.
    Secretary Chertoff. I think it speaks for itself.
    Senator Schumer. OK. I thank you for that, because we 
really need your help.
    The second deals with another issue that affects--some of 
us from States that are on the Northern border. As you know, 
the passport situation has created a huge outcry. I know that 
you have talked about finding alternatives to passports, which 
I think places like Buffalo, New York, and Plattsburg, as well 
as Seattle and Detroit and other places really appreciate. The 
problem is that what has been talked about so far is the sort 
of card which would be cheaper than a passport but still 
present the same problems. For places like Buffalo, the Niagara 
River, which separates Buffalo from Canada, is more like the 
Hudson River. It is not like flying to Munich. You don't want 
to call 3 weeks in advance to say, oh, I am planning to go see 
a show or a ballgame or whatever on this side of the river.
    What can be done? Can you give us some idea of how we can 
deal with these issues? We need security. I am the first to 
agree with that. We also can't afford to just slow down 
commerce to a standstill. This border card hasn't met with too 
much favor, at least in its initial discussions, because it has 
some of the same problems the passport has.
    Secretary Chertoff. Well, of course, we begin with the fact 
that we are dealing with a law and we have to comply with the 
law. The law requires a passport or its equivalent, and I think 
the President was very clear a few months ago when it came up 
and I have tried to be very clear about the fact that we were 
not looking to make passport be the only or the preferred 
choice, although it certainly would be acceptable, but that we 
were looking for some alternative that would satisfy the 
requirement of accurate documentation.
    Frankly, a card, and we all carry cards in our wallet. I 
carry a driver's license. A card seems an efficient way, 
particularly for people on the border, and I well understand 
there are people who go back and forth multiple times a day--
    Senator Schumer. Right.
    Secretary Chertoff [continuing]. It seems that we have got 
to find some way to get them a card that is cheap, that 
satisfies the legal requirement, but that is as convenient to 
carry as walking out of the house with your driver's license--
    Senator Schumer. The only other criteria I add, and then I 
will conclude as my time is concluding, but it also has to be--
it has got to be secure, but it has got to be relatively--it 
has got to be quick and easy to get. Do you agree with that?
    Secretary Chertoff. I agree, and I think we are going to 
face that challenge as we were with the Real I.D. Act.
    Senator Schumer. Right.
    Secretary Chertoff. We have some time to do this and we are 
working hard to make sure we do it right.
    Senator Schumer. Thank you, Mr. Secretary. Thank you, Mr. 
Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman. I apologize for 
being late.
    I listened with interest to Senator Kennedy's questions on 
you in terms of the ten to 12 million people who are here. My 
question really deals with the fact that if somebody is here 
illegally and the real basis for our society is recognition of 
the law and equal justice under the law and if they come here 
illegally, building a case for amnesty, no matter which way you 
call it or how long it takes, the fact is, you undermine that 
tremendous important aspect of being an American is recognizing 
that we are all treated equally under the law.
    If we have the President's program in terms of enhancing 
border security, enhancing enforcement, enhancing the return of 
those that are here illegally, and then enhancing in some way 
those that are here already illegally to give them a period of 
time to come back and do it properly, can you envision a way 
where we can impact that thought that you have to follow the 
law? I will tell you, to the people of Oklahoma, amnesty is a 
terrible word to them--
    Secretary Chertoff. Right.
    Senator Coburn [continuing]. Because it didn't work last 
time and if we start talking about it now, what you are going 
to see is more pressure on the border. How do we implement this 
idea of making people who want to come here and be a part of 
our society understand the rule of law?
    Secretary Chertoff. Let me begin, Senator, by saying the 
President has been crystal clear, it is certainly embodied in 
the administration's view, that there is not to be an amnesty 
here. This is not to be a way for people to line-jump to 
permanent residents or a path through which they can get to 
permanent resident or citizenship. What it is designed to do is 
to regularize an existing situation and channel people into a 
way of dealing with work that will ultimately get them back to 
their own countries and it focuses on the employer as well as 
the employee, and let me just take 1 minute to explain what I 
mean.
    The driver here is the demand that employers have for the 
work. As long as employers are going to be willing to hire 
people who are here illegally, people are going to come in. The 
question is, can you give employers a way to do that using a 
combination of carrot and stick that will put them into the 
regular channel so that people are coming, they are registered, 
they have identification, we can track them, and also we build 
a set of economic incentives that ultimately actually gives 
them incentives to go back home when they have made some money. 
What that would do is that would bleed out a significant amount 
of the pressure on our border enforcement people and let us now 
focus on the worst of the worst.
    Clearly, amnesty would be an affront to the rule of law. It 
would be an affront to those who are legal, who are waiting 
their turn. The key is how do you manage a very, very difficult 
situation.
    Senator Coburn. So my followup question to that is at the 
end of the third year, and then the second, third year and 
somebody has not complied, what do we do?
    Secretary Chertoff. I think at that point, you are out of 
the program, but by then, we have tracked you. We know where 
you are. We have your address. And also, if the program is 
designed properly, money that, for example, is set aside for 
retirement winds up only being available to the migrant if the 
migrant goes back home to get the money. So the migrant now has 
a pretty strong economic incentive to go back to that original 
place in order to get their retirement or benefits.
    Senator Coburn. But again, I want you all to think about 
the contrast. We have a law, and the predicament that Senator 
Kennedy set up is it is the law, but it may cost too much to 
enforce it, so we won't enforce it. That is the antithesis of 
this whole country. If it is the law, either we change the law 
or we enforce the law. So at the end of 6 years, what do you 
perceive will happen with the President's program, Secretary 
Chao or Secretary Chertoff?
    Secretary Chao. I think we are all in agreement that 
enforcement is a very important part of maintaining a culture 
of rule of law and also of securing our Nation's borders. But 
we have also found that enforcement alone will probably not be 
the entire answer, either. So there must be some way to track 
these 11 million people who are here illegally and the 
temporary worker program is an attempt to address that.
    Senator Coburn. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Coburn.
    Senator Brownback?
    Senator Feingold. Mr. Chairman?
    Chairman Specter. Pardon me. We should go to Senator 
Feingold, who just came.
    Senator Feingold. Thank you, Mr. Chairman. Thank you, 
Senator Brownback. I am pleased that the Committee is once 
again taking up the critical issue of comprehensive immigration 
reform. We will all be better off if we create a realistic 
immigration system that recognizes that American businesses 
need foreign workers sometimes, that allows them to come to the 
United States legally, that protects their rights in the 
workplace, and that ensures that the government knows who is 
entering the country.
    Immigration reform is important for all of these reasons, 
but I also want to mention again the importance of this issue 
to our economy. I am hearing more and more every day from 
business owners in Wisconsin telling me that sometimes they 
cannot find local workers to fill their jobs and that they 
desperately need to see changes in the immigration system in 
order to stay in business.
    But I do want to take a few of the minutes here to ask 
about a somewhat different issue, which I understand Senator 
Kennedy has mentioned. I support vigorous enforcement of our 
immigration laws, but I am concerned about this incident that 
occurred on July 6, 2005. Immigration and Customs Enforcement 
officials impersonating OSHA employees publicized what they 
characterized as a mandatory OSHA safety training for workers 
at the Seymour Johnson Air Force Base in Goldsboro, North 
Carolina. Once workers arrived at the meeting, the ICE 
officials disclosed that there was no safety briefing and 
subsequently arrested 48 undocumented workers.
    Secretary Chao, a Labor Department spokesperson said at the 
time that, quote, ``This is not something we were involved in 
and we do not condone the use of OSHA's name in this type of 
activity.'' Secretary Chao, do you agree that the actions taken 
by ICE undermines OSHA's credibility and harm your agency's 
effort to address workplace safety issues for all workers?
    Secretary Chao. The short answer is, I do. As mentioned, no 
one at the Department of Labor or at OSHA was involved in this 
decision or the enforcement action itself, nor did we have any 
advance notice of it, and we have conveyed our gravest concerns 
to the Department of Homeland Security and the Secretary.
    Senator Feingold. Thank you for that answer.
    Secretary Chertoff, I and a number of other Senators just 
sent you a letter about this incident, asking for further 
information. I realize you may not have had a chance to review 
it and I do appreciate your response to Senator Kennedy's 
questions about this incident. Can you commit to respond to 
that letter expeditiously?
    Secretary Chertoff. Yes.
    Senator Feingold. I would like to understand how this 
incident came about. Did the ICE investigators who put together 
this ruse in North Carolina contact OSHA or anyone else at the 
Labor Department to ask their views on it before implementing 
the plan?
    Secretary Chertoff. I don't know. I mean, I will have to--
as I say, I became aware of this yesterday and the facts, I 
think, will have to be looked into and I will give you--we will 
respond with a factual summary.
    Senator Feingold. I look forward to that information. I 
took Secretary Chao's comments to be that you believe that 
there was not this kind of contact. Did you say that in your 
previous response to me?
    Secretary Chao. Yes.
    Senator Feingold. I thought you said that there was no such 
contact.
    Secretary Chao. No one at the Department of Labor nor OSHA 
were advised in advance of this plan.
    Senator Feingold. According to news reports, Secretary 
Chertoff, representatives from the Labor Department, Justice 
Department, and Homeland Security were going to meet to discuss 
this incident. Can either of you tell me if that meeting has 
occurred?
    Secretary Chertoff. I don't know off the top of my head. We 
can find out.
    Senator Feingold. Secretary Chao, has that meeting 
occurred?
    Secretary Chao. My understanding is, yes, it has.
    Senator Feingold. Can you tell me he results of that 
meeting, then, Secretary Chao?
    Secretary Chao. May I submit that for the record?
    Senator Feingold. Yes.
    Secretary Chao. There was a discussion at the appropriate 
levels with the Department of Homeland Security. There was 
concern expressed as to how this plan was hatched, what 
happened, why was it initiated. There was a great deal of 
concern expressed.
    Senator Feingold. I look forward to receiving that 
information in writing and as thorough as is possible and as 
soon as possible and I thank you for that.
    Secretary Chao, correct me if I am wrong, but I don't 
believe your testimony covered the issue of visa portability. 
Do you agree that allowing workers to switch jobs on the same 
visa would help to protect workers from exploitation by 
unscrupulous employers who could otherwise threaten to get them 
kicked out of the country?
    Secretary Chao. I think the goal here, of course, is to 
protect American workers first. The Department of Labor also 
has responsibility to enforce labor standards and health and 
safety rules across the board. So we are concerned about 
workers being taken advantage of. We are also trying to 
balance, again, the security issues, as well. So it was thought 
that if workers were able to apply for this visa, that they 
would have an opportunity with, let us say, a 45-day grace 
period if they left one job to be able to go to another. But 
these are proposals. That is the best effort--best attempt at 
trying to balance both those needs. So we would be interested 
in your point of view if you have a different point of view.
    Senator Feingold. I thank both of you. Thank you, Mr. 
Chairman.
    Chairman Specter. Thank you very much, Senator Feingold.
    Senator Brownback?
    Senator Brownback. Thank you, Mr. Chairman, and thanks for 
holding this important hearing. I like your new hairdo. It 
looks sharp.
    Chairman Specter. Thank you very much. I am glad to have it 
recorded on television.
    [Laughter.]
    Senator Brownback. I am appreciative of all your work and 
all the key topics you are bringing up, this one amongst them.
    Secretaries, thanks for being here. There was a report out 
two or 3 weeks ago that we now have a higher level of illegal 
immigration than legal immigration into the United States. Is 
that accurate? That was in, I believe, a Pew study.
    Secretary Chao. I am not actually--I am not familiar with 
that and--
    Senator Brownback. Secretary Chertoff, are you familiar 
with that? This is a Pew study that was out a few weeks ago.
    Secretary Chertoff. I saw the article. I think I said 
earlier, I am always a little--I always question to some degree 
some of these studies or surveys because I am not quite sure 
how they are constructed, so I am not in a position to verify 
or dispute it.
    Senator Brownback. Obviously, we have a high level of 
illegal immigration in the--
    Secretary Chertoff. That, I agree with.
    Senator Brownback. Do you have any idea why we have so much 
higher illegal immigration than maybe we used to and certainly 
a high level relative to our legal immigration into the United 
States?
    Secretary Chertoff. Of course, this has been a problem that 
has been around for 15, 20 years. I remember when I was U.S. 
Attorney in the early 1990's, going down to the border with 
U.S. Attorneys and being shown--this is before the fence--being 
shown people waiting to run across the border.
    Why it is higher now, I suspect is partly a function of the 
labor market, that there is now an intense demand for workers 
that is not being met and I think that comes back to the point 
of the temporary worker program, that--
    Senator Brownback. Let me jump into that one, because my 
time is going to run real fast. It looks like, when I have 
looked at these numbers in the past, I mean, I think you have 
got the right combination. You have to have both enforcement 
and some sort of work program, and I want to cite to you some 
numbers off of that. There may be some of my colleagues that 
would say, well, I am not sure that that is an accurate 
reflection of today's situation, but in 1954, we had a big 
increase in enforcement actions combined with an increase in 
the then-designed Bracero program that led to a 95 percent 
reduction in illegal immigration. Are you familiar with those 
numbers, or is that an accurate reflection of that time?
    Secretary Chertoff. I have heard about the program. The 
numbers, as I say, I can't verify or disagree with. I just 
don't have them on the top of my head.
    Senator Brownback. I would appreciate you taking a look at 
that, because that is quite striking if that is, indeed, what 
the combination can produce.
    I noted in 1964 with the ending of the Bracero program, it 
triggered a 1,000 percent increase in illegal immigration by 
1976. Twelve years, 1,000 percent, and the raw numbers are even 
more striking than that. We had, I can get down to this, INS 
apprehensions in 1964, 86,597; in 1976, 875,915. I hope you can 
take a look at that, because it seems like the model is 
accurate. Now, the devil is in the details in how to get that 
done.
    Perhaps, Secretary Chao, this would be best for you. I have 
heard numbers that we have as high as, in the use of Social 
Security numbers and bad Social Security numbers or illegal 
ones, 400,000 that claim the Social Security of all zeroes? My 
guess is some of those are illegal if that is indeed the case, 
but--
    [Laughter.]
    Secretary Chao. Enforcing employer sanctions is not in my 
Department. It is in the Department of Homeland Security.
    Senator Brownback. Secretary Chertoff?
    Secretary Chertoff. You know, I don't know of it for a 
fact, but I can believe it. As I said earlier, I find one of 
the most frustrating aspects of what employers face is some 
uncertainty about what they can do when they get a ``no 
match.'' Common sense would tell you if you get a ``no match'' 
on Social Security or a Social Security card with all zeroes, 
at a minimum, you should be able to ask some questions. I am 
informed that there are all kinds of legal issues about whether 
the employer is going to get in trouble if he or she does that. 
At a minimum, we ought to clarify that an employer who has got 
some kind of notice that there is something funny with a 
document ought to be able to do the kind of inquiry to get to 
the bottom of it.
    Senator Brownback. If we could, and I know this can be 
touched and hopefully the next panel can address some of this, 
but it seems to me that is one of the simple ways we ought to 
be moving forward, is if this isn't a match, then it ought to 
have an immediate notification and something in the system that 
that would be a way to go. I think we have got a model in the 
past, it is not a perfect fit, but how you mix both the 
enforcement with a good work visa program for a way to move 
forward so that we have got a model, and now getting the 
details of getting that to move forward will be helpful.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Brownback.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Chertoff, the American people are not happy with the 
way the system is working. I notice in your written statement, 
you indicated that enforcement will not wait for enactment of a 
new temporary worker program. In your verbal statement, I am 
informed that you said, once we have the new worker program in 
place, we must couple it with enhanced enforcement.
    I am not sure when this new worker program is going to 
pass. Certainly, I don't think it is going to pass in the form 
that has been suggested by the administration. So are you going 
to get busy now to enforce existing law?
    Secretary Chertoff. Well, we are busy. I mean, I don't want 
any ambiguity about this. Not only are we going to get busy, we 
have gotten busy. As I have demonstrated, for example, with 
respect to non-Mexicans from Brazil, we ran an operation in 
Texas. We have got 1,500 Border Patrol that now have been 
appropriated. We are going to get those online and we are going 
to move over the next year from a catch-and-release for non-
Mexicans toward a catch-and-remove to non-Mexicans. So we 
aren't going to wait and we haven't waited.
    The point I made in my oral statement is that, ultimately, 
to be effective, I think in a way that I think we need to be, 
we are going to need more than just brute enforcement. We are 
going to need a temporary worker program, as well.
    Senator Sessions. I just want you to know how strongly I 
think the American people care about this. We know that we need 
workers in this country, and we have some great people that 
come into our country from many countries who work well and 
contribute to our economy and many of them bring brilliance and 
technology and skills that help us fight disease and make 
scientific advancements also.
    But I was a little troubled when you lightly dealt with the 
question of 400,000 people with zero Social Security numbers. I 
mean, that is a big deal. Also, I note that in 2003, I believe, 
there were about 15 employers sanctioned for hiring illegal 
workers in an improper way. Do you know what the numbers are 
this year and what they were in 2004?
    Secretary Chertoff. Yes. In 2004, on the criminal side, we 
had--worksite enforcement led to 67 indictments and 46 
convictions. In 2005, it was 140 indictments and 127 
convictions. In terms of administrative sanctions, in 2004, I 
think we had 685 arrests and in 2005 we had 1,358, of which 832 
were from critical infrastructure facilities. So we are 
increasing the tempo and pace of our worksite enforcement, but 
we need to continue to do more--
    Senator Sessions. That is some progress, but it is still 
awfully, awfully small, as I think you would admit. What I 
would suggest to you and what I would say to many people who 
think this is a hopeless matter, that it is really not. If we 
enhance our enforcement actions against businesses, if we 
eliminate areas through fences and enforcement on the border, 
we enhance the ability for people to come legally with a 
biometric identifier so they can come and go, this thing can 
tip and you can make huge progress.
    I notice you talk about the other-than-Mexicans and the 
progress you are making with Brazil, but it still--there are 
many other other-than-Mexicans than Brazil. As I understand it, 
it is about an 80 percent chance that if you are apprehended 
coming into this country from a nation other than Mexico, that 
you will be released on bail, and over 90 percent do not show 
up for the court hearing. Is that still true, and what plans do 
you have to deal with all of these countries?
    Secretary Chertoff. That has certainly been the historic 
situation and that is one of the reasons the first thing we 
initiated in the last month or so was getting 1,800 additional 
beds, cutting the time in beds, and moving from a catch-and-
release to a catch-and-remove.
    I completely agree with you. This is one of those areas 
where there is a tipping point. We saw it with the Brazilians. 
In fact, we continue to see a decrease in the number of 
Brazilians. Part of that is because the Mexicans have actually 
now reversed their position and are now no longer allowing 
Brazilians to go in without visas, which is a positive step.
    But I completely agree with you. This is an area we can 
have an impact in 1 year in tipping away people coming in from 
outside Mexico. I think that would be a very important step 
forward.
    Senator Sessions. My time is up. I would just advise and 
ask that you not wait for Congress to promote these ideas. I 
think you should be bringing them forward and asking us to help 
you achieve lawfulness in immigration.
    I would also offer, Mr. Chairman, for the record, a letter 
that Congressman Lamar Smith asked me to make a part of the 
record, and I would be pleased to, that responds to some of the 
administration positions, and also a letter signed by 81 
Congressmen emphasizing the enforcement needs to come first 
before we deal with the overall issues of immigration.
    Chairman Specter. Without objection, those documents will 
be made a part of the record. Thank you, Senator Sessions.
    Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman. My 
appreciation to both of you for joining us today on this really 
complicated issue.
    My mother was an immigrant to this country. She was brought 
here at the age of two, came over with her mother and brother 
and sister, and I am sure as they walked down the ramp at 
Baltimore, Maryland, people looked up and said, ``Not more of 
those people.'' I am glad that she came and I am glad that my 
grandmother and grandfather had the courage to come and I hope 
we don't overlook that.
    The people who make the decision to cross this border and 
come here leave behind a lot--their language, their culture, 
their family, their relationships, their churches, their 
villages. They come here with a special quality of courage that 
has really made this a much different country, a much better 
country. I hope that as we consider how we deal with a sensible 
immigration system, we never overlook the fact that they bring 
a lot of value to this Nation.
    I have met them, and I am sure you have, too, and worked 
with them, and many of these people who are clearly 
undocumented are really adding to America, making really 
beneficial contributions, not just to the economy, but to who 
we are and our values. Those who just view them in negative 
terms don't know them and don't know the lifestyle and the 
values that they bring to us.
    What I need to find out in the short time we have together 
is to ask you what the administration thoughts are on a couple 
of things. First, does the administration agree that there 
should be a path to permanent residence for immigrants who work 
hard, pay taxes, play by the rules, and learn English?
    Secretary Chao. I think the administration has said on many 
occasions, and the President has, as well, that we have--first, 
we have put forth five principles, which I won't go into at 
this point, but that there should not be a pathway to 
citizenship.
    Senator Durbin. There should not be?
    Secretary Chao. There should not be an automatic pathway to 
citizenship under the--
    Senator Durbin. Could you clarify the word ``automatic''?
    Secretary Chao. Under the President's proposal, we would 
try to bring out those undocumented workers who are currently 
living in the shadows. Our goals are to control our borders. 
Second is to serve the American economy by matching workers 
with unfilled jobs. Three is promote compassion for immigrant 
workers. Four is to provide temporary workers with the 
incentive to return to their home countries. And fifth is to 
protect the rights of legal immigrants.
    So the administration's plan is not an amnesty for illegal 
immigrants and it does not--
    Senator Durbin. What--
    Secretary Chao. We feel that an automatic pathway to 
citizenship would reward those who have violated our laws.
    Senator Durbin. So you are opposed to creating a pathway to 
permanent residence for immigrants who have lived in this 
country, have paid their taxes, have not broken the law, and 
have some command of the English language? You would not open a 
pathway to legal residency to them?
    Secretary Chao. We would ask that temporary workers come 
and work for--there are two types, obviously, those who are out 
of the country and those who are in the country. For those that 
are in the country, which is what we are talking about--
    Senator Durbin. Yes.
    Secretary Chao [continuing]. We would ask them to sign up 
for the temporary worker program for 3 years and they can 
extend for another three years for a total of 6 years, and at 
which point we would ask that they return to their home 
country.
    Senator Durbin. So there would be no pathway to residence. 
Let me ask you about--
    Secretary Chao. They can apply for the program and come on 
back--
    Senator Durbin. They can continue to work, but they 
wouldn't have any opportunity or pathway to legal permanent 
residency, as I understand your description.
    Secretary Chao. They would not have a legal pathway to 
citizenship, no.
    Senator Durbin. Let me ask you about a specific group, 
then. There are thousands of undocumented students in this 
country whose parents brought them to the United States when 
they were children. They grew up here. They have excelled in 
school. They know no other country. I had a particular case of 
a young woman who was accepted at the Juliard School of Music, 
a child prodigy, a Korean American, it turns out was 
undocumented, the only person in her family who was. When I 
contacted the then-INS and asked them what to do, they said she 
has to go back to Korea. She had been here since the age of 
two.
    So I want to ask you, I have introduced a bill with Senator 
Hatch called the DREAM Act which would allow for students in 
this circumstance an opportunity, if they played by the rules, 
haven't violated the law, been here at least 5 years, completed 
their education, and plan to attend college or even serve in 
the United States military, that they would then have a pathway 
to legal residence, permanent residence, and ultimately 
citizenship. What would your position be, if not on this 
particular bill, on this concept of giving these children that 
opportunity?
    Secretary Chao. Obviously, Senator, as you can guess, I am 
not ready at this point to express an opinion about the DREAM 
Act.
    No. 2, I think at this point, the President has made his 
principles quite clear. We are very willing to work with 
Congress, but the principles are that we do not support an 
automatic pathway to citizenship.
    Senator Durbin. Well, keep--
    Secretary Chao. For children, I don't know.
    Senator Durbin. Add the word automatic, and I don't want it 
to be automatic. I think that these immigrants would have to 
earn their way into a position of possibilities and 
opportunities and they could lose it by doing the wrong thing. 
So it is clearly not going to be automatic. I think that may be 
a difference here, but at the risk of pushing it too hard and 
too far, I will stop at this point and ask the administration 
to take a look at this bill more closely.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Grassley?
    Senator Grassley. Thank you, Mr. Chairman.
    Secretary Chertoff, today, the Inspector General of 
Homeland Security issued a report requested by me and 
Congressman Hostettler stating that the Citizenship and 
Immigration Service fails to accurately count H-1B visas, and 
these are handed out yearly, a cap of 65,000. CIS went above 
that cap set by Congress, so that clearly is that Homeland 
Security is breaking the law. What is worse is that they know 
they are violating the law and they will continue to violate it 
if they maintain the counting system that they have today. I 
don't know how this agency can possibly implement a guest 
worker program and keep track of ten million aliens when they 
cannot even count 65,000 each year.
    So I don't have a question for you now, but I would like to 
have your, not your assurance, but your reassurance, because I 
have had assurance before, that you will make the agency change 
their ways and stay within the number set by Congress.
    Secretary Chertoff. We will, Senator. Let me, if I can, 
just take a moment to say that I think that we have already 
changed the model in this respect. That problem, which I think 
occurred last year, occurred because when they estimate in 
terms of receiving applications what the cutoff is, at which 
point you hit 65,000, since you don't know how many people are 
actually going to make their way through the process with the 
application, what they were doing was that everybody who 
applied on the last day was getting in and that exceeded the 
cap.
    What they have now done is we issued a regulation saying 
that on the last day, when you hit the upper limit, to keep 
within the limit, we will operate a random system so that not 
everybody who comes on the last day will get within the cap. It 
will just be a random luck-of-the-draw type of deal. That 
should cure the problem.
    Senator Grassley. I sure hope it does.
    Also for you, I want to say that I understand that the 
Citizenship and Immigration Service has a program known as 
FOCUS. This program reviews applications for immigration 
benefits, like green cards for citizenship, where national 
security concerns are identified. In some cases, applicants may 
be on the Terrorist Watch List or the FBI is watching them and 
they could be an associate of a terrorist fundraiser. Rather 
than simply denying these applications, the agency has allowed 
them to pile up while trying to get more information about 
them. People within CIS are saying that there are major 
problems with getting the information because, too often, law 
enforcement still doesn't want to share details with non-law 
enforcement people. Now, I don't understand that, being in the 
same Department, working for the same agency head, why somebody 
doesn't want to share information, but that is what I am 
getting, that they don't want to share the information. I have 
been told that there are hundreds of these cases and one 
estimate was as high as 1,400. Yet the total number of people 
working on this FOCUS problem is about four or five.
    If your Department can't adequately deal with security 
concerns in the processing of six million applications per 
year, I would question the Department's ability to deal with a 
massive increase in applications that would come as part of a 
guest worker program. It leads me to believe that CIS is more 
worried about customer service than national security.
    Now, I wrote you on September 21 about Project FOCUS and 
benefit fraud and I have not yet received a response. My 
question is, 4 years after 9/11, we are still hearing that 
people applying for immigration benefits are not properly 
screened. Name checks are too narrow, unreliable, and 
inadequate. Even when there is a hit, CIS is not aggressive 
enough in finding ways to deny the application. All the 
emphasis seems to be on backlog reduction, and if a few hundred 
people slip through the cracks if they have ties with 
terrorists or criminal organizations, that seems to be an 
acceptable risk, and I don't think it is acceptable. So what do 
you think and what are you going to do to put emphasis back on 
security?
    Secretary Chertoff. Well, we do think security is 
important, and one of the things I actually--I think I said in 
testimony not before this Committee but elsewhere in July was 
we need to reconfigure the model in which CIS operates and 
consider the possibility of having, before we give people--
before we accept applications and let people come in on a 
temporary basis or be here on a temporary basis, we ought to 
reverse the process and do the checking or most of the checking 
first so they don't get in. We don't consider their application 
complete until we have done a lot of the background checking. 
That is not going to happen instantly, but that is what we are 
aiming to in terms of a model going forward.
    As far as the name checks go, I mean, we have worked with 
the FBI in terms of getting quicker response. I think we all 
know that sometimes the name checks are not necessarily 
accurate, and we see that with TSA. So it is fair to dig a 
little bit deeper. But I share your concern, as I said in July, 
about the idea that people are going to be here for a long 
period of time while we are reviewing a national security 
issue. That is not a sensible way to proceed and that is what 
we are going to have to correct.
    Senator Grassley. Mr. Chairman, we set up the Department of 
Homeland Security so all of these agencies would be under one 
roof so that we wouldn't have these separate smokestacks with 
information being held by the separate Departments. There is 
just no reason for not having this information, particularly 
within one Department, shared by others in the Department when 
it is needed.
    Chairman Specter. Senator Grassley, you are right. Thank 
you.
    I would like to move ahead with the second panel, but I 
have had a request from Senator Cornyn for another 5 minutes 
and I don't want to curtail any line of questioning while we 
have the two Secretaries here. If there is a request from 
others, I will accede to that, as well, with one eye on the 
clock.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman. I am grateful. It 
is a wonderful opportunity to have these two Secretaries here 
and talk about something that is obviously so important.
    I wanted to ask Secretary Chao about the administration's 
rationale for requiring those who qualify under this temporary 
worker program to return to their country of origin after their 
permit, basically, their time here is completed. As you know, 
there are at least two major Senate bills that deal with this 
whole issue, comprehensive immigration reform, and really what 
I am focusing on is this principle of work and return as 
opposed to work and stay. I might also ask you to comment, this 
would not be, as I understand it, to the exclusion of other 
paths for legal permanent residency and citizenship that would 
exist under current law. Could you please comment on that?
    Secretary Chao. The administration's proposal of requiring 
that workers stay for 3 years with a possible 3-year extension 
but then must spend 1 year outside the U.S. before readmission 
to the temporary worker program as one way to ensure that there 
is respect for the rule of law, that there is not, again, an 
automatic way to come into this country. So this is an effort 
at basically ensuring that there is some kind of a penalty and 
some kind of a fresh start for the worker when they leave so 
that they can come back and come under a legal program, be 
legal, and start their life anew.
    Senator Cornyn. Looking long-term at the causes of illegal 
immigration, no doubt the development disparity between 
countries like Mexico and the United States, Central America, 
the United States is a great place to work and make better 
money than you can make in many of the places that people 
emigrate from. I happen to believe that it is important that we 
provide incentives for people to return to their country of 
origin as part of this program with the savings and the skills 
that they have acquired working in the United States on a 
temporary basis because no country's economy could withstand 
the permanent exodus of its workers. And, I think in terms of 
causes of illegal immigration with respect to the overall 
comprehensive policy, that makes a lot of sense and I 
appreciate your comments.
    Let me ask quickly, Secretary Chertoff, of course, the 9/11 
Commission focused on removing barriers to information sharing, 
and Senator Grassley just referred to one aspect of that, 
transforming our government's system, previously described as a 
``need to know'' with a ``need to share.'' I am a little 
concerned about some proposals that would restrict the access 
of employment verification data from law enforcement personnel, 
including immigration enforcement. Do you share that concern? 
Would you encourage the Congress to adopt policies that provide 
encouragement for information sharing even in that context?
    Secretary Chertoff. I am not aware of the specific proposal 
you are mentioning. I, in general, believe we ought to share 
information. There is very little percentage in keeping people 
in the dark like mushrooms.
    Senator Cornyn. How about, for people who apply for this or 
any other program that the U.S. Government may have, would you 
agree that it is a bad idea to issue employment and travel 
authorization to aliens before their background screening is 
completed?
    Secretary Chertoff. I think one of the issues we identified 
when we reviewed the operations of the Department over the 
summer was that the problem with doing precisely that, that 
under the current situation where people get access to the 
ability to come in and work while we are processing their 
background checks, it seems to me that is a vulnerability and 
we need to reverse that. I don't want to understate the 
magnitude of the task. The system has now been built a certain 
way. It has to be reengineered. We have a new nominee, I think 
he is actually coming to testify today before the Committee. We 
are very interested in beginning that reengineering process.
    Senator Cornyn. Thank you. Thank you very much, Mr. 
Chairman.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Durbin has requested another five-minute round. 
Senator Durbin?
    Senator Durbin. Thank you, Mr. Chairman.
    I would like to ask Secretary Chertoff about Hurricane 
Katrina. I am finding it difficult to follow the 
administration's policy here. After 9/11, are you aware of the 
fact that the Commissioner of the INS, Mr. Ziglar, made an 
announcement that people who thought they had lost friends or 
family in the World Trade Center and contacted local 
authorities, that they could do so without fear that the 
authorities would use the information that they obtained for 
immigration purposes and deportation. That was the policy of 
the Bush administration after the 9/11 tragedy.
    After Hurricane Katrina, it appears there is a different 
policy. In fact, it is my understanding that several hurricane 
victims or people who have come forward to agencies have been 
deported or placed in deportation proceedings, which is totally 
different than the approach that was used with 9/11.
    The same question arises when it comes to the policy of 
this administration as to workers. In the aftermath of Katrina, 
the administration suspended the Davis-Bacon Act and waived 
sanctions for employers who hired undocumented immigrants. This 
gave employers the ability to hire these people at below-market 
rates which could, of course, negatively impact workers.
    I am trying to figure out what the position is here. It 
appears that if undocumented immigrants, workers, can be hired 
for the purpose of reconstruction of Hurricane Katrina, then 
they are welcome in the United States for that purpose. But if 
they should ask for help as victims of Hurricane Katrina, 
unlike 9/11, they are subject to deportation. Reconcile this 
for me, if you will.
    Secretary Chertoff. Well, first of all, the issue of 
whether people can call in and find their missing relatives, I 
am not aware of any--I mean, I think there were a number of 
telephone lines, frankly, or online ways of doing that. I don't 
know that anyone who wanted to find a missing relative was 
required to prove their citizenship status.
    But I will tell you that the law forbids us to pay benefits 
to illegal immigrants. I mean, that is the law. So if somebody 
came forward and said, ``I am an illegal immigrant. I lost my 
house,'' or they said, ``I lost my house,'' and it emerged they 
were an illegal immigrant, they would be in violation of the 
law if we gave them benefits.
    I think our general policy was we are not looking to turn 
this into a law enforcement exercise. On the other hand, we are 
going to comply with the law.
    As far as the Davis-Bacon Act, and maybe Secretary Chao has 
more insight than I do, I don't understand that to have green-
lighted letting illegal aliens be hired.
    Senator Durbin. No, that wasn't the part, Mr. Secretary. 
First, the people I am talking about who were deported weren't 
asking for a free house from the government. They were usually 
asking for food and water.
    Secretary Chertoff. I don't know that we--I mean, I think 
when people handed out food and water and medical care, I don't 
know of any policy that said, ask for people's citizenship 
first.
    Senator Durbin. But do you know, in fact, they were 
deported or placed in deportation proceedings in several 
instances?
    Secretary Chertoff. I must tell you, Senator, I don't know 
the facts of the specific case. I don't know how someone became 
aware someone was here illegally, and if they did--you know, 
once someone becomes aware of a violation of the law, I think 
at that point, it is often incumbent on them to take action. 
Now, were these local officials, State officials? I don't know. 
I can tell you there was no policy to turn relief efforts into 
a hunt for illegal migrants. But at the same time, it was clear 
that if someone was an illegal migrant and was seeking to get, 
for example, benefits--and I am not talking about food and 
water, but, I mean, something like--
    Senator Durbin. That is exactly what happened here, Mr. 
Secretary. These were people seeking refuge at the Judson 
Williams Convention Center in El Paso along with other evacuees 
and they were deported or placed in deportation proceedings, 
and I hope you will look into it.
    And the second point is, it is not Davis-Bacon. Davis-Bacon 
was part of the decision to diminish the wages of those who 
would rebuild Hurricane Katrina. But it was the second part, 
the decision of the administration to waive sanctions for 
employers who hired undocumented workers in Hurricane Katrina 
reconstruction. Doesn't it strike you as an inconsistent policy 
of this administration to look the other way in one instance 
and then to deport people seeking the basics of life at these 
evacuation shelters?
    Secretary Chertoff. I have to say something. I am just not 
aware of a decision to allow people to hire illegal workers. I 
just--
    Senator Durbin. Well, I can tell you I have sent you two 
letters, September 14 and September 22, asking for you to 
please respond on this issue--
    Secretary Chertoff. Well, I will look into them.
    Senator Durbin [continuing]. And I know you are very busy 
and I want you to focus on the reality of this disaster, but 
please, get somebody in your office--
    Secretary Chertoff. Sure. I will.
    Senator Durbin [continuing]. To take a look at it and I 
think you will find that the facts I have raised really raise 
serious questions about the consistency of this policy with the 
administration.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Durbin.
    In the absence of hearing any other voice, we are going to 
proceed to panel two.
    Secretary Chao and Secretary Chertoff, thank you for your 
distinguished contribution to our country and thank you for 
being at the hearing today and let us keep working and see if 
we can't find the answer.
    We move now to panel No. 2, to Mr. Frank Sharry, Executive 
Director of the National Immigration Forum; Mr. Mark Krikorian, 
Executive Director of the Center for Immigration Studies; and 
Dr. Douglas Massey.
    Mr. Sharry is the Executive Director of the National 
Immigration Forum, a Washington, D.C.-based organization with 
membership of over 250 organizations nationwide. He had been 
Executive Director of Caentro Presente, an agency that helps 
Central American refugees in the Boston area. He also led 
efforts to resettle refugees from various countries, including 
Vietnam and Cuba.
    Thank you very much for joining us, Mr. Sharry, and we look 
forward to your testimony.

    STATEMENT OF FRANK SHARRY, EXECUTIVE DIRECTOR, NATIONAL 
              IMMIGRATION FORUM, WASHINGTON, D.C.

    Mr. Sharry. Thank you, Mr. Chairman. Thanks for this 
opportunity to all the members of the Committee.
    Please allow me to start with my main recommendation. I 
urge this Committee in the strongest terms possible to take 
action on immigration reform and soon. The challenge is too 
great, the need too urgent, and the stakes too high to allow 
the vacuum to be filled by piecemeal proposals that sound tough 
but solve nothing. On the other hand, if you move forward with 
dispatch and courage, it will be this Committee that sets the 
tone and the direction for this Congress.
    Now, we all know that immigration is a controversial issue 
that defies easy solutions. One reason for this is that there 
are two seemingly opposed frameworks for addressing it. One 
side says, get tough. The other side says, open up. And for too 
long, this either/or argument has led to polarization and 
paralysis.
    If we are to solve this problem, if we are to move beyond 
the failed strategies of the past, we need a new and broader 
framework. We need a both/and perspective, one that involves 
getting tough and opening up.
    As I am often asked, what is the solution to reduce illegal 
immigration, it is usually put this way. Are you in favor of 
toughening up immigration enforcement or in modernizing our 
immigration laws? My answer is, yes.
    Senator Kennedy captured this both/and approach recently 
when he said this. Enforcement and legality are two sides of 
the same coin. This is the insight at the heart of the McCain-
Kennedy bill. It is the insight at the heart of the Cornyn-Kyl 
bill. And it is the insight at the heart of the White House 
principles for reform that we just heard articulated. All of 
these proposals seek to integrate enforcement and legality so 
that they no longer push apart but instead pull together.
    Now, for a range of constituencies from across the spectrum 
and across the country, the McCain-Kennedy bill is the fullest 
expression of this both/and approach. It has the right 
architecture and the right elements. It is bipartisan, it is 
comprehensive, and most importantly, we believe it will be 
workable, which leads me to my second recommendation, that this 
Committee use the McCain-Kennedy bill as the template for 
Senate Judiciary Committee action.
    To improve on it, the Committee should incorporate the best 
ideas from the other serious proposals on the table put there 
by other Senators as well as by the White House. What should 
the Senate Judiciary Committee bill include?
    On the enforcement side of the coin, a robust combination 
of, one, border enforcement that integrates professional law 
enforcement and state-of-the-art technology.
    Two, workplace enforcement that makes it virtually 
impossible for employers to hire those in the country illegally 
while making it much easier to go after employers who try to do 
so.
    And three, means for negotiating active cooperation from 
sending countries aimed at cracking down on criminal smugglers 
and discouraging illegal immigration.
    On the legality side of the coin, the bill needs to have, 
one, future flow visas for both needed workers and separated 
families so that we can replace the current illegal flow with a 
legal and orderly one.
    Two, a registration and earned legalization solution for 
the 11 million immigrants currently working and living in the 
U.S. illegally.
    And three, promotion of English language instruction and 
citizenship. Incentives for circularity are fine and necessary, 
but the many immigrants that settle here should be encouraged 
to become new Americans.
    Mr. Chairman, the country is crying out for leadership on 
this confusing, complex, and controversial debate. With all due 
respect, may I say, let us do this thing. Let us build out this 
new framework and enact a realistic solution in this Congress. 
Let us deal with enforcement and legality at the same time and 
with the right mix. Let us forge an immigration system based on 
enforceable laws tightly enforced. Let us create a regulatory 
regime that respects rule of law at the same time it respects 
the law of supply and demand.
    It is time for the either/or argument of the past to give 
way to the both/and solutions of the future. We no longer have 
to choose between being a nation of immigrants and a nation of 
laws. In fact, it is time to recognize that the only way to be 
either is to be both. Thank you.
    Chairman Specter. Thank you very much, Mr. Sharry.
    [The prepared statement of Mr. Sharry appears as a 
submission for the record.]
    Chairman Specter. We now turn to Mr. Mark Krikorian, 
Executive Director of the Center for Immigration Studies. He 
has a Bachelor's from Georgetown, a Master's from Fletcher, and 
has done extensive publishing in the Times, Post, and National 
Review.
    Thank you for joining us, and the floor is yours.

  STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR 
             IMMIGRATION STUDIES, WASHINGTON, D.C.

    Mr. Krikorian. Thank you, Mr. Chairman. Policymakers face 
two main questions on immigration. What are we supposed to do 
with the 11 million illegal aliens who are here, and do we need 
to import unskilled labor at all?
    I will address the second question first. Do we need mass 
unskilled immigration? The answer is clearly no. Those who 
answer yes claim, in effect, that we are running out of a 
precious resource, unskilled workers, and thus we need to 
import more from abroad. In other words, our vast, flexible, 
300-million-person, continent-spanning economy can't function 
properly without a steady supply of high school dropouts from 
abroad because they do work that Americans supposedly won't do. 
Such a claim can only be described as economic gibberish. In 
fact, employers would do two things if the supply of foreign 
labor were reduced. One, increase wages and benefits to attract 
the labor still available, and at the same time, look for ways 
of increasing productivity through mechanization, for instance.
    Some would say that even with higher wages, there just 
aren't enough Americans to do the work that illegals are doing 
now. Now, if we were Fiji or Kuwait and didn't have any people, 
we might have to import a labor force. But if we look at the 
jobs that illegal aliens hold, we find that there are millions 
of Americans in those very same occupations and they suffer 
from much higher rates of unemployment than the national 
average.
    This isn't to say that each illegal alien takes a job from 
an American. It is not that simple. But it does mean there are 
very large numbers of Americans who are unemployed or who have 
dropped out of the labor market altogether who are in direct 
competition with illegal immigrants. Many of these workers will 
be drawn into the jobs now performed by illegals and other jobs 
will be eliminated by technology if only the free market were 
not short-circuited by mass immigration.
    Lobbyists for business will disagree, of course, but claims 
of doom and gloom are nothing new from that quarter. Forty 
years ago, for instance, California tomato farmers testified 
that their industry would cease to exist if the foreign labor 
program of that time, the Bracero program, were ended. It was 
ended anyway and what farmers did was invest in harvest 
machinery, causing output to quadruple and the real post-
inflation price of their processed products to fall.
    Fifty years before that, the textile industry predicted 
disaster if child labor were ended. In fact, at a hearing 
before this body in 1916, one mill owner said that limiting 
child labor would ``stop my machines.'' Another said that 
investors would never receive another dividend, while a third 
said that ending child labor would paralyze the country. 
America's economy has done just fine without child labor and it 
would do just fine without more foreign labor.
    But that leaves the other question before us. What do we do 
about the illegals already here? Those who support mass 
immigration also tend to support legalization, i.e., amnesty. 
They argue that there are only two options: One, mass round-ups 
and mass deportations of millions of people in a short period 
of time; or, since that isn't going to happen, as Senator 
Kennedy pointed out, amnesty is the only other option 
available.
    Let me say here that anything that launders the status of 
an illegal alien, permitting him to remain here, is an amnesty. 
Whether it is a so-called temporary worker program that allows 
him to stay or an increase in the green card category for 
unskilled workers or some other means, the result is the same. 
And whether the illegal alien first has to earn his status by 
paying a fine or passing an English test or calculating pi out 
to ten digits, it doesn't make any difference, either. If he 
gets to remain legally, he has received an amnesty.
    But we are not stuck with these two unpalatable choices. 
There is a third way, and it is the only workable solution in 
any case, attrition of the illegal population through 
enforcement. We didn't get into this situation overnight and we 
are not going to end it overnight with one comprehensive piece 
of legislation, I am afraid. Instead, by actually enforcing the 
immigration law consistently and across the board, we can 
dramatically reduce the settlement of new illegal immigrants 
and, over a period of years, force millions of those already 
here to give up and to deport themselves, shrinking the illegal 
alien problem from today's crisis to a manageable nuisance.
    Amnesty supporters claim that we have already tried that 
and we have failed and so we have to try something else. In 
fact, the precise opposite is true. We have never tried 
sustained, comprehensive enforcement, but we have tried many of 
the reforms that are now being proposed. In 1986, Congress 
passed an amnesty for illegal immigrants with nearly three 
million people legalized. Four years later, we substantially 
increased legal immigration and the issuance of temporary 
worker visas has grown even faster. The result? More illegal 
immigration than ever before. It is time to try something new, 
attrition through enforcement.
    Thank you.
    Chairman Specter. Thank you very much, Mr. Krikorian.
    [The prepared statement of Mr. Krikorian appears as a 
submission for the record.]
    Chairman Specter. Our next witness is Dr. Douglas Massey, 
Professor of Sociology at Princeton University. He was also a 
faculty member at the University of Chicago, where he directed 
the Latin American Studies Center and Population Research 
Center.
    We appreciate your being here, Professor Massey, and look 
forward to your testimony.

    STATEMENT OF DOUGLAS S. MASSEY, PROFESSOR OF SOCIOLOGY, 
          PRINCETON UNIVERSITY, PRINCETON, NEW JERSEY

    Mr. Massey. Mr. Chairman and members of the Judiciary 
Committee, my testimony is very simple. The U.S. immigration 
system is badly broken. It has been broken since 1986 and has 
been getting worse.
    The central problem concerns the relationship between 
Mexico and the United States. Mexico accounts for 60 percent of 
all unauthorized migrants currently in the country and around a 
fifth of recent legal immigrants. After Mexico's six million 
unauthorized residents, the next closest countries are El 
Salvador and Guatemala, with totals of less than 300,000 each. 
Few unauthorized migrants come from Asia, Europe, Africa, or 
the Pacific. Undocumented migration is, thus, overwhelmingly a 
problem of the Western Hemisphere and very disproportionately 
Mexican.
    Next to Canada, Mexico is our closest neighbor and trading 
partner. Together, we share a 2,000-mile border and trade 
annually totaling $286 billion. In 2004, 175,000 legal 
immigrants entered the U.s. from Mexico, along with 3.8 million 
visitors for pleasure, 433,000 visitors for business, 118,000 
temporary workers and dependents, 25,000 intra-company 
transferees, 21,000 students, 8,400 exchange visitors, and 
6,200 traders. At the same time, one million Americans 
presently live in Mexico and 19 million travel there each year. 
U.S. direct foreign investment in Mexico now totals $62 billion 
annually.
    These massive cross-border flows are occurring by design 
under the auspices of the North American Free Trade Agreement. 
However, at the heart of NAFTA lies a contradiction. Even as we 
have moved to promote the freer cross-border movement of goods, 
services, capital, commodities, we simultaneously seek to 
prevent the movement of labor. We somehow wish to create a 
single North American economy that integrates all factor 
markets except one, that for labor.
    To maintain this illusion that we can somehow integrate 
while remaining separate, we have militarized our border with a 
friendly country that is among our closest trading partners and 
strongest allies and which poses no conceivable threat to the 
United States security. Even as binational trade with Mexico 
grew by a factor of eight from 1986 to the present, the Border 
Patrol's enforcement budget increased by a factor of ten. The 
Border Patrol is now the largest arms-bearing branch of the 
U.S. Government except the military itself, with an annual 
budget of $1.4 million.
    The attempt to stop the flow of Mexican labor into the 
United States through unilateral enforcement has not only 
failed miserably, it has backfired. It has not deterred would-
be immigrants from entering the United States, nor has it 
reduced the size of the annual inflow. What it has done is 
channel migratory flows away from traditional crossing points 
to remote zones where the physical risks are great, but the 
likelihood of getting caught is actually small. As a result, 
the number of deaths has skyrocketed while the probability of 
apprehension has fallen to a 40-year low. We are spending more 
tax dollars to catch fewer migrants and cause more deaths.
    Moreover, once deflected away from traditional crossing 
points, Mexican immigrants have moved to new destinations. 
Whereas two-thirds of Mexicans who arrived in the United States 
during 1985 to 1990 went to California, during 2000 to 2005, 
only one-third did so. In essence, our border policies have 
helped transform a regional movement affecting three States 
into a national phenomenon affecting all 50 States.
    Our policies also serve to transform what had been a 
seasonal movement of male workers into a settled population of 
families, increasing the costs and risks of undocumented entry 
and they have not deterred Mexicans from coming.
    Perversely, the policies have only discouraged them from 
going home once they are here. Having faced the gauntlet at the 
border, undocumented migrants were loath to do so again and 
hunkered down for the long term. As a result of our 
militarization of the border, undocumented trips have 
lengthened and rates of return migration have plummeted. If the 
rate of in-migration remains stable while the rate of out-
migration declines, only one outcome is possible, a sharp 
increase in the rate of net undocumented population growth.
    In addition, as Mexican migrants stayed away longer, they 
sent for their wives and children. So rather than constituting 
a temporary flow of male workers, Mexico-U.S. migration has 
become a settled population of permanent residents and 
families.
    In sum, the American attempt to stop the flow of Mexican 
workers within a rapidly integrated North American economy has 
not worked. Rather, it has reduced the rate of apprehension at 
the border, raised the death rate among migrants, produced 
longer trip lengths, lowered rates of return migrations, 
increased the rate of undocumented population growth, 
transformed what had been a circular flow of workers into a 
settled population of families scattered throughout 50 States, 
all at the cost of billions of dollars of taxpayer money.
    Our border policies have thus given us the worst of all 
possible worlds, continued immigration under terms that are 
disadvantageous to us, harmful to American workers, and 
injurious to the migrants themselves. This lamentable state of 
affairs stems from our failure to come to terms with the 
contradiction of continental integration under NAFTA. Rather 
than viewing Mexican migration as a pathological product of 
rampant poverty and unchecked population growth, we should see 
it as a natural product of economic development in a relatively 
wealthy country undergoing rapid transition to low fertility.
    I believe the McCain-Kennedy immigration bill moves us 
substantially in the direction of improving circumstances for 
American workers, improving circumstances for our closest 
neighbor, and enhancing the health and status of the United 
States. I, therefore, support it as a member of the National 
Academy of Sciences, a citizen of the United States, and a 
concerned human being.
    Chairman Specter. Thank you very much, Professor Massey.
    [The prepared statement of Mr. Massey appears as a 
submission for the record.]
    Chairman Specter. Mr. Sharry, you talk about the key to 
putting immigration on a legal footing is to find a way to 
encourage 11 million undocumented immigrants to, quote, 
``transition to legal status.'' Short of amnesty, which is 
generally frowned upon, how do you persuade those 11 million 
people to come out of the shadows so that the transition can be 
effectuated?
    Mr. Sharry. There is no perfect solution to this, Senator.
    Chairman Specter. Well, give us some solution that isn't 
perfect.
    Mr. Sharry. It can't be an amnesty, which is an automatic 
pardon and a trip to the front of the line.
    Chairman Specter. You agree that amnesty is out of the 
question, generalized?
    Mr. Sharry. I do. I do. I also think, though, that if we 
are going to be realistic about putting migration on a legal 
footing, we can't simply ignore the fact that there are 11 
million people here without status who are afraid to come 
forward.
    I like the idea embodied in the McCain-Kennedy proposal, 
the idea of coming forward to register, submitting to security 
checks, paying fines, maintaining a clean record, getting to 
the back of the line, and participating in English and civics 
classes. I like the idea of having to earn your way out of the 
fact that you did break the law and you are here and most of 
you are going to stay. I think that is the right approach.
    Chairman Specter. And if they fail to earn their way, a 
breach along the line, ship them home?
    Mr. Sharry. Yes. If I could just say one more thing about 
it, I do think that this amnesty word has been abused and 
overused. I think what the American people want is a solution 
to the 11 million as long as we have a solution to the problem 
of open borders, porous borders, lax enforcement. If we get the 
combination right, I think the American people will be pleased 
and glad that we have dealt with the 11 million here and they 
have come out of the shadows.
    Chairman Specter. Mr. Krikorian, you have an interesting 
concept on attrition through enforcement and your proposition 
that there are many people who are unemployed, but how do you 
deal with the statistics which show that even among 
construction workers, there are only about 65 percent of the 
number we need? If you move into the skilled trades, health 
care workers or plumbers, electricians, there are vast 
shortages. Looking at the projections from Federal Reserve 
Chairman Greenspan, that by the year 2030, the growth of the 
U.S. work force will slow to a half percent and at the same 
time the population over 65 years of age will rise to 20 
percent, that sort of a demographic projection leaves the 
country in drastic shape on sustaining Social Security and 
Medicare. Really, is there any answer beyond bringing more 
workers into this country?
    Mr. Krikorian. Yes, there is, Senator. First of all, the 
idea of the need for labor is a dynamic thing. It is not 
static. The fact is that the expectation or the presence of 
large numbers of foreign workers causes those industries that 
they work in or are expected to work in to develop differently.
    One quick example is in California, where the number of 
acres planted in labor-intensive crops has been steadily 
increasing because there is an available labor force illegally 
coming into the country that farmers want to use. With a 
smaller supply of foreign workers over time, the industries 
develop differently. Construction moves more rapidly to 
manufactured housing, away from stick-built housing. Farming 
moves more rapidly to mechanized harvests, away from hand 
harvesting, perhaps even different crops. Carrots, you harvest 
by machine; strawberries, you don't.
    My basic point is the economy is a dynamic system that can 
adjust one way or the other--
    Chairman Specter. You think the market forces would 
accommodate if these workers weren't available?
    Mr. Krikorian. If they disappeared tomorrow, that would be 
extraordinarily disruptive, but there is no prospect of that 
happening. Over time, yes, market forces would deal with it.
    Chairman Specter. I have only 30 seconds left and I want to 
pose a question to Professor Massey, so pardon the 
interruption. You talk about renewal only once in a lifetime of 
the visa-holder after he or she returns home. Do you think that 
there is any practical way that temporary guest workers should 
be able to earn legal permanent resident status after staying 
in the U.S. labor force for a period of time without returning 
home?
    Mr. Massey. Yes, I do. I think that at the same time you 
set up a temporary worker program, it is also true that the old 
saying that there is no such thing more permanent than a 
temporary worker program. Some fraction of those temporary 
workers are going to acquire social and economic ties to the 
United States that will draw them into a more permanent status 
and there should be a pathway for that small fraction of people 
to become legal resident aliens of the United States.
    But left to their own druthers, the vast majority of people 
circulating from Mexico would prefer to return home, and so you 
should try to accommodate that with a temporary worker program, 
but also have an avenue for permanent settlement for those who 
acquire ties to the United States to qualify them.
    Chairman Specter. Thank you, Professor Massey. The red 
light went on during the middle of your answer.
    I will yield now to Senator Kennedy.
    Senator Kennedy. Thank you very much. I thank the panel. I 
think we have gotten a pretty good impression from this panel 
about the dynamics of this debate in a lot of different ways.
    I want to just ask Frank Sharry about another dimension and 
that is what we can expect from Mexico and these other 
countries. The panel hasn't mentioned this issue, but unless we 
get cooperation in this whole undertaking from Mexico and 
Central American countries, we are not going to achieve reform 
even with the proposals that Senator McCain and I have made. I 
am interested if you would comment on it.
    We have the programs in Mexico, the three-to-one programs 
where some rebates that go back in are used internally to try 
to help economic development. We haven't talked about the 
importance of economic development in Mexico and the difference 
that that can make. There is also a payment. We talked earlier 
in the course of the hearing about people using fake I.D.s or 
Social Security cards and we know there are funds that are 
already in the Social Security fund that will not be claimed. I 
don't know whether there is any way or opportunity or if there 
should be one, but it is a public policy issue whether some of 
that can be used in terms of helping the development in Mexico 
and along these border areas so that it changes the atmosphere 
and the climate. You are going to have to get a change in 
Mexico and Central America.
    Could you comment about the issue just generally, briefly, 
but--
    Mr. Sharry. Yes, Senator. I agree with your thesis. We 
can't get this done right unless we have Mexico and Central 
America, which account for more than 80 percent of the current 
illegal immigration, at the table as full partners. I do think 
that we should expect more from them in both public education 
campaigns, administering temporary worker programs, and in 
cracking down on smugglers. I also think that part of the deal 
of engaging them on immigration reform is that their own 
internal reform agendas get accelerated.
    You mentioned the Social Security suspense file, which I 
understand has some $420 billion in taxes that have been paid 
by those who can't get matched up to right numbers and the only 
explanation from SSA is that almost all of that is from 
undocumented immigrants who have been working and having their 
FICA taken out. that is a huge sum of money. Now, most of it, I 
hope, will 1 day get matched up to the workers themselves, but 
no doubt, some of that will be available both for, perhaps for 
development processes in Mexico and Central America.
    But we need to bring them to the table. They are democratic 
governments and they will come to the table if we have a fair 
immigration policy that responds to the law of supply and 
demand in this hemisphere.
    Senator Kennedy. Thank you. On the issues of wages and the 
impact in terms of employment, I don't think any of us question 
that if you are going to pay people $15 or $20 or $25 to make 
beds or wash dishes, maybe you can get people to do it, but it 
is going to be a rather dramatic change in the economy in terms 
of what we are looking at here. We can't even get an increase 
in the minimum wage from $5.15 an hour in the last 9 years, and 
the idea that we are going to suddenly alter and change this 
economy so that we are going to be paying all these people and 
change this thing dramatically is something that I find quite 
difficult to get a handle on.
    But I am interested in, Professor Massey, just about what 
is happening out there in the depression of wages, even on 
American workers. Could you talk about what you think, if we 
get to a legitimate temporary worker program where a worker is 
going to have the protections in terms of what they are going 
to get paid, has got the mobility to move around, as compared 
to what we have at the current time in terms of the 
exploitation of the undocumented? What is sort of the swing on 
that in terms of the economic conditions generally of workers 
in those areas? What do you see as a professional economist and 
somebody who has studied this?
    Mr. Massey. Well, I think one of the major reasons that 
wages have lagged at the low end of the distribution is that we 
have seen a buildup of people without any labor rights in the 
United States. People in undocumented status are, in fact, 
vulnerable and subject to exploitation, and ironically, this 
isn't because more people are coming to the United States, it 
is because when you militarize the border, the paradoxical 
effect is you deter them from going home. So what has fallen is 
not the rate of entry, but the rate of return migration and you 
have got all these people building up north of the border in 
undocumented status and by competing in labor markets in this 
super-exploitable position, it puts downward pressure on 
American wages and working conditions.
    I think the way to improve the situation for American 
workers is to grant people in the United States full rights 
within the U.S. labor market and labor markets work to allocate 
supply and demand, so you should allow people full rights to 
participate and allow the markets to do their work.
    Senator Kennedy. My time is up. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kennedy.
    Senator Cornyn, do you have questions for this panel?
    Senator Cornyn. Just briefly, Mr. Chairman, if I may.
    Chairman Specter. Please proceed.
    Senator Cornyn. I think all of us agree that there are 
several different components to immigration reform that we need 
to address. One, obviously is the national security imperative. 
The other is the economic issues involved. And third, I would 
say, are the compassion issues that cause our hearts to go out 
to those who are literally dying trying to come to America to 
provide for their families. I don't know anyone under similar 
circumstances who would not try to do the same, assuming that 
they had sufficient courage to do that.
    My own belief is the best and most compassionate thing we 
can do for people is to create a legal system and one that can 
be enforced, because a legal system then provides protection of 
the laws to workers. It provides protection against the human 
smugglers. It obviates a necessity for those. And it even helps 
the spouse who is subject to domestic violence and who is 
afraid to report it because of her status.
    But let me talk first, and perhaps exclusively in the time 
I have remaining, about enforcement. We know that the nature of 
immigration has changed across our borders, that it is not the 
traditional economic immigrant only, but rather we know that 
that porous border makes us vulnerable to people who want to 
come here to kill us, literally. It is just a matter of money 
to the smugglers. They will smuggle guns, they will smuggle 
drugs, they will smuggle people. They don't care whether they 
are members of al Qaeda or whether they just want to work and 
provide for their families.
    Mr. Sharry, would you talk about, briefly, what sort of 
enforcement measures you think are imperative as part of this 
comprehensive immigration reform package? I understand there 
are other attributes that you think it needs to include--
    Mr. Sharry. Right.
    Senator Cornyn [continuing]. But just talk to us about 
enforcement.
    Mr. Sharry. Thank you, Senator. Well, let me suggest that I 
think there are a number of good ideas in the legislation that 
you have put forward that should be fully considered as part of 
a Senate Judiciary bill. I think the combination of robust 
border enforcement with the kind of infrastructure and 
technology improvements is essential. I think the idea of more 
boots on the ground, both on the border and in the interior, 
are ideas that have to be further developed and implemented. I 
particularly like the way you have designed the bilateral 
agreements with sending nations. I think that is a respectful 
but essential way to engage the sending countries so we get 
cooperation from them in a meaningful way and I think that that 
is an excellent idea. And I think the detailed approach that 
you take to worker verification is essential.
    I think at the end of the day, if, in addition to 
augmenting the increased border enforcement, the key to 
reducing illegal immigration and draining the swamp of fake 
document merchants and smugglers is really going to be worker 
verification, and I think we need to do it. It is tough to do 
it right. We need to take into account privacy concerns, data 
concerns, anti-discrimination concerns. They are all 
legitimate, and I think those elements need to be added in this 
mix. But at the end of the day, if we have that combination 
from sending countries to border to interior enforcement 
combined with legal channels, I think we will significantly 
reduce illegal immigration.
    Right now, about a third of the flow is illegal. Our goal 
should be nothing less than to have it less than two or 1 
percent as a flow, in which our Border Patrol can instantly 
know if someone is crossing our border and have teams go after 
those folks. We have got to take care of the networks that move 
workers so that 1 day, they can't move terrorists.
    Senator Cornyn. Mr. Krikorian, would you speak to that same 
question, please?
    Mr. Krikorian. I am inspired that Frank is so pro-
enforcement now. It is a refreshing cool drink of water to 
hear. The problem, though, is that in the discussion of 
immigration enforcement and security, what we often hear is 
that the dishwasher isn't the problem, the terrorist is the 
problem. And the fact, of course, is the dishwasher does not 
have a bomb vest on him and is not going to blow up a bus. But 
any immigration system that the dishwasher can sneak through is 
one that the terrorist can also sneak through.
    So we can't do what really has been kind of the implicit 
sense since 9/11 in immigration enforcement. We can't just pick 
and choose which immigration laws we are going to enforce or 
who we are going to enforce them against. We need to do it 
comprehensively at consulates overseas, at the border, and 
inside the country in order for the security benefits of it to 
be realized, because without it, if we look only at people from 
Egypt and Saudi Arabia, for instance, we will end up with 
terrorists using French passports or Russian passports or 
others, and those are not hypotheticals, those are real things. 
So we need enforcement across the board if it is going to have 
any security benefits at all.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Without objection, Senator Leahy's statement will be made a 
part of the record.
    Thank you very much, Mr. Sharry, Mr. Krikorian, Professor 
Massey. Your testimony has been very helpful and now the 
Committee will struggle with the so-called markup where we try 
to write a bill.
    There is no doubt of the enormous importance of the 
immigration issue, how we balance many conflicting factors. I 
was interested to hear the story of Senator Durbin's 
grandparents, a story very similar to the story of my parents, 
both of whom were immigrants. I disclosed at the outset my bias 
at birth favoring immigrants. Beyond that, we have to have a 
program which engenders respect for law and protects our 
borders and sees to it that we have an adequate work force, 
lots of complications, but within the pay grade of the 
Judiciary Committee.
    That concludes our hearing. Thank you all very much.
    [Whereupon, at 11:54 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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