[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 SHORTFALLS OF THE 1996 IMMIGRATION 
                           REFORM LEGISLATION 

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                CITIZENSHIP, REFUGEES, BORDER SECURITY,
                         AND INTERNATIONAL LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 20, 2007

                               __________

                           Serial No. 110-25

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

          Subcommittee on Immigration, Citizenship, Refugees, 
                 Border Security, and International Law

                  ZOE LOFGREN, California, Chairwoman

LUIS V. GUTIERREZ, Illinois          STEVE KING, Iowa
HOWARD L. BERMAN, California         ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas            BOB GOODLATTE, Virginia
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
LINDA T. SANCHEZ, California
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota

                    Ur Mendoza Jaddou, Chief Counsel

                    George Fishman, Minority Counsel



















                            C O N T E N T S

                              ----------                              

                             APRIL 20, 2007

                                                                   Page

                           OPENING STATEMENT

The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Chairwoman, Subcommittee on 
  Immigration, Citizenship, Refugees, Border Security, and 
  International Law..............................................     1
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Ranking Member, Subcommittee on Immigration, 
  Citizenship, Refugees, Border Security, and International Law..     3

                               WITNESSES

Mr. Douglas S. Massey, Ph.D., Professor of Sociology and Public 
  Affairs, Princeton University
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Mr. Paul W. Virtue, former INS General Counsel and Executive 
  Associate Commissioner, and Partner, Hogan & Hartson
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Mr. Hiroshi Motomura, Kenan Distinguished Professor of Law, 
  University of North Carolina School of Law
  Oral Testimony.................................................    40
  Prepared Statement.............................................    42
Mr. Mark Krikorian, Executive Director, Center for Immigration 
  Studies
  Oral Testimony.................................................    48
  Prepared Statement.............................................    50

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Chairwoman, 
  Subcommittee on Immigration, Citizenship, Refugees, Border 
  Security, and International Law................................     2
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................     5
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Subcommittee on Immigration, Citizenship, Refugees, Border 
  Security, and International Law................................     6

                                APPENDIX
               Material Submitted for the Hearing Record

Submission to the Record by the Honorable Steve King, a 
  Representative in Congress from the State of Iowa, and Ranking 
  Member, Subcommittee on Immigration, Citizenship, Refugees, 
  Border Security, and International Law: ``Information on 
  Criminal Aliens Incarcerated in Federal and State Prison and 
  Local Jails'' from the U.S. Government Accountability Office, 
  April 7, 2005..................................................    64
Answers to Post-Hearing Questions from Douglas S. Massey, Ph.D., 
  Professor of Sociology and Public Affairs, Princeton University   102
Answers to Post-Hearing Questions from Paul W. Virtue, former INS 
  General Counsel and Executive Associate Commissioner, and 
  Partner, Hogan & Hartson.......................................   104
Answers to Post-Hearing Questions from Hiroshi Motomura, Kenan 
  Distinguished Professor of Law, University of North Carolina 
  School of Law..................................................   109
Answers to Post-Hearing from Mark Krikorian, Executive Director, 
  Center for Immigration Studies.................................   111


                  SHORTFALLS OF THE 1996 IMMIGRATION 
                           REFORM LEGISLATION

                              ----------                              


                         FRIDAY, APRIL 20, 2007

                  House of Representatives,
Subcommittee on Immigration, Citizenship, Refugees, 
             Border Security, and International Law
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Zoe 
Lofgren (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Lofgren, Gutierrez, Berman, 
Jackson Lee, Delahunt, Sanchez, King, and Forbes.
    Staff present: Ur Mendoza Jaddou, Majority Chief Counsel; 
R. Blake Chisam, Majority Counsel; George Fishman, Minority 
Counsel; and Benjamin Staub, Professional Staff Member.
    Ms. Lofgren. This hearing of the Subcommittee on 
Immigration, Citizenship, Refugees, Border Security, and 
International Law will come to order.
    Vigorous enforcement of the immigration laws is not only 
necessary, it is our responsibility. We must demand respect for 
the rules and also secure our borders.
    In 1996, Congress put forward a plan to enhance the 
enforcement of our immigration laws. A package of 1996 
immigration reform laws further increased the number of Border 
Patrol agents and technology for border enforcement, required 
the Border Patrol to build fencing along the border, expanded 
the grounds of removal, and streamlined the removal process. 
Those laws created electronic employment verification systems 
and eliminated eligibility for welfare benefits.
    Those who wrote the bill, I am sure, meant to positively 
impact the situation of illegal immigration. Ending illegal 
immigration is an important goal. But, as we now know, the 1996 
Act did not put an end to illegal immigration, not even close 
to it.
    The estimated numbers of illegal immigrants living in the 
United States has risen dramatically since 1996, growing from 
between 5 million to 6 million people to an estimated 11 
million to 12 million today.
    Until last year, the probability of an illegal border 
crosser getting caught dropped precipitously since 1996, even 
as more money and resources were committed to border 
enforcement. Those crossing the border simply shifted to more 
remote locations, making apprehension less likely, while also 
making it more likely that migrants will hire coyotes or die in 
the desert.
    Congressional attempts to manage the borders have, by most 
any measure, failed to accomplish the goal of stopping the flow 
of illegal immigration. The law of unintended consequences has 
reared its ugly head. We still have work to do and things to 
fix.
    The Illegal Immigration and Immigration Responsibility Act 
of 1996, referred to as IIRIRA, created traps for those here 
illegally. It not only increased the cost of coming to America, 
but it also increased the cost of leaving. This has had the 
unintended effect of making people stay in America even when 
they would otherwise have returned home.
    For decades before the 1986 Immigration Reform and Control 
Act, illegal immigrants from Mexico came to America much as 
they do today. The difference between then and now is that most 
of them, some 80 percent, left within a couple of years. We 
learned in our fourth hearing that IRCA disrupted those 
historic patterns. The 1996 law not only continued to disrupt 
those patterns, they made things worse.
    Let me cite just one example. The 1996 Act created what are 
known as the 3-and 10-year bars to entry. Because these bars 
can only be triggered when someone departs the United States, 
the bars provide an incentive for undocumented immigrants to 
stay here, and stay they do.
    Instead of staying for 2 to 3 years, Mexican immigrants now 
tend to stay for 6 or 7 years or more. They have to. The cost 
to get in has gotten too high. It takes longer to pay off the 
coyote who has to be hired for each crossing, and because of 
the 3-and 10-year bars, the cost of leaving are higher still. 
And it has become even more dangerous and costly to reenter.
    The road to ruin is paved with good intentions. We must 
always be mindful of the law of unintended consequences. It is 
easy to say, we simply need to enforce the laws we have. But 
instead we need to work toward a comprehensive solution. We 
must reform our immigration laws not only to secure our borders 
but to provide for the safe, orderly and controlled future flow 
of immigrants. We must make certain that we protect American 
workers and safeguard the sanctity of family, and we must 
ensure that we do not create a permanent underclass of 
immigrant workers in this country.
    I look forward to hearing from our distinguished panelists 
today as we explore the unintended consequences and shortfalls 
of the 1996 immigration reforms.
    I would now recognize our distinguished Ranking minority 
Member, Mr. Steve King, for his opening statement.
    [The prepared statement of Ms. Lofgren follows:]
 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
Congress from the State of California, and Chairwoman, Subcommittee on 
Immigration, Citizenship, Refugees, Border Security, and International 
                                  Law
    Vigorous enforcement of the immigration laws is not only necessary, 
it is our responsibility. We must demand respect for the rules and also 
secure our borders.
    In 1996, Congress put forward a plan to enhance the enforcement of 
our immigration laws. A package of 1996 immigration reform laws further 
increased the number of border patrol agents and technology for border 
enforcement, required the border patrol to build fencing along the 
border, expanded the grounds of removal and streamlined the removal 
process. Those laws created electronic employment verification systems 
and eliminated eligibility for welfare benefits.
    Those who wrote the bill, I'm sure, meant to positively impact the 
situation of illegal immigration. Ending illegal immigration is an 
important goal.
    But, as we now know, the 1996 acts did not put an end to illegal 
immigration. Not even close to it.
    The estimated number of illegal immigrants living in the U.S. has 
risen dramatically since 1996, going from between 5 to 6 million people 
to an estimated 11 to 12 million today. Until last year, the 
probability of an illegal border crosser getting caught dropped 
precipitously since 1996, even as more money and resources were 
committed to border enforcement. Those crossing the border simply 
shifted to more remote locations, making apprehension less likely, 
while also making it more likely that migrants will hire coyotes or die 
in the desert.
    Congressional attempts to manage the borders have, by most any 
measure, failed to accomplish the goal of stopping the flow of illegal 
immigration.
    The law of unintended consequences has reared its ugly head. We 
still have work to do and things to fix.
    The Illegal Immigration and Immigrant Responsibility Act of 1996 
(referred to as the IIRIRA) created traps for those here illegally. It 
not only increased the cost of coming to America, but it also increased 
the cost of leaving. This has had the unintended effect of making 
people stay in America, even when they would have otherwise returned 
home.
    For decades before the 1986 Immigration Reform and Control Act, 
illegal immigrants from Mexico came to America, much as they do today. 
The difference between then and now is that most of them--some 80%--
left within a couple of years. We learned in our 4th hearing that the 
IRCA disrupted those historic patterns.
    The 1996 laws not only continued to disrupt those patterns, they 
made things worse.
    Let me cite just one example. The IIRIRA created what are known as 
the 3 and 10 year bars to reentry. Because these bars can only be 
triggered when someone departs the United States, the bars provide an 
incentive for undocumented immigrants to stay here.
    And stay they do. Instead of staying for 2 to 3 years, Mexican 
immigrants now tend to stay 6 or 7 or more years. They have to. The 
costs to get in have gotten too high. It takes longer to pay off the 
coyote who has to be hired for each crossing. Because of the 3 and 10 
year bars, the costs of leaving are higher still. And it has become 
even more dangerous and costly to reenter.
    The road to ruin is paved with good intentions. We must always be 
mindful of the laws of unintended consequences. It's easy to say we 
simply need to enforce the laws we have.
    Instead, we work toward a comprehensive solution. We must reform 
our immigration laws not only to secure our borders but to provide for 
a safe, orderly and controlled future flow of immigrants.
    We must make certain that we protect American workers and safeguard 
the sanctity of family. And, we must ensure that we do not create a 
permanent underclass of immigrant workers in this country.
    I look forward to hearing from our distinguished panelists today as 
we explore the unintended consequences of the 1996 immigration reforms.

    Mr. King. Thank you, Madam Chair. I appreciate you holding 
this hearing today and appreciate the witnesses coming forward 
to testify.
    In the mid-1990's, there was a sea change in our strategy 
to control the southern border. In 1994, the total complement 
of Border Patrol agents was 4,226. The Border Patrol let 
illegal immigrants cross the border and then tried to apprehend 
them in border communities.
    Now, numbers and the strategy were deficient. The southwest 
border was in a state of crisis. The transit routes most 
heavily used for illegal immigrants were in the San Diego 
corridor, which had become an open sieve.
    Then things changed. First, in El Paso, Texas, Border 
Patrol Chief Silvestre Reyes, now Congressman of Texas's 16th 
District, conceived and launched the most successful border 
initiative in recent memory. Pursuant to Operation Hold the 
Line, he placed his agents directly on the border and had them 
stop attempted border crossings. This visual deterrent had the 
effect of dramatically reducing illegal crossings, cutting 
crime in border communities and winning the praise of the 
public.
    When top INS officials, resentful of Reyes' success, put 
roadblocks in his path and resisted applying his doctrine in 
other areas, it got more difficult. But Immigration 
Subcommittee Chairman, Lamar Smith, brought Chief Reyes to 
testify before Congress. Subsequently, INS adopted the Reyes 
strategy in San Diego and dubbed it ``Operation Gatekeeper.'' 
It has been remarkably successful. Apprehensions have 
plummeted, and the INS touted the operation as one of its most 
successful border control initiatives ever.
    Next, Congressman Lamar Smith and Senator Alan Simpson 
wrote, and saw through to enactment, the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996. The act 
authorized a yearly net increase in Border Patrol strength of a 
then unheard 1,000 a year. A decade later, the Border Patrol 
has a strength of over 13,000 agents.
    The act also called for the construction of a second and 
third row of border fencing along the southern border for 14 
miles inland from the Pacific Ocean. The fence, combined with 
``Operation Hold the Line,'' which was facilitated by the 
increasing Border Patrol strength, led to the San Diego border 
being secured and crime in San Diego dropping by half.
    As a result of these actions, it has become significantly 
more difficult for illegal aliens and drug smugglers to cross 
the southwest border. Illegal immigrants must now resort to 
difficult routes across rugged terrain in California and in 
Arizona. As long as Congress continues increasing Border Patrol 
strength in the future, we can look forward to the day when the 
entire border is brought under control.
    Now, some make the argument that the increased border 
security since the mid-1990's has actually made our illegal 
immigration problem worse. The argument is that when illegal 
immigrants could cross the border at will, they practiced 
circular migration and went back and forth across the border. 
Some did.
    But once border security increased, many aliens who had 
made it across the border stayed permanently in the U.S. for 
fear of not being able to get back across the border after 
returning home. That is the argument.
    Now, this argument is flawed for two reasons. First, it 
makes little difference as to the effect of illegal immigration 
on the American economy and society whether illegal immigrants 
stayed permanently or whether they go home for Christmas 
vacation or any other time.
    Second, the very data that Mr. Massey utilizes purports to 
show that the percentage of illegal immigrants who return to 
Mexico within a year of illegal entry declined between the mid-
1980's and the mid-1990's ever since then and has stayed 
relatively stable.
    Given that the major efforts to control the southwest 
border did not begin until the mid-1990's, it makes no sense to 
argue that increased border enforcements have resulted in more 
permanence.
    But even if we accept the circulatory premise for the sake 
of this argument, it does not argue that we should abandon a 
chance to further secure our borders. It has always been the 
case that we can never control illegal immigration through 
border security alone.
    First, an estimated 40 percent of illegal immigrants have 
come to the U.S. legally on temporary visas and have simply 
illegally procured jobs and never left. Second, we will never 
be able to totally seal our thousands of miles of land and 
water borders. Some people will inevitably get through.
    For both these reasons, border security must be combined 
with robust interior enforcement, especially through the 
enforcement of employer sanctions. Unfortunately, while we made 
the border progressively tighter since the mid-1990's, 
Administrations past and present have practically abandoned 
worksite enforcement. That is why we have 20 million illegal 
immigrants today, not because we have more Border Patrol 
agents.
    I am heartened by the steps taken by Julie Myers in the 
past to reinvigorate enforcement. It is making a difference. 
But the issue has been raised about how many die in the desert, 
and I would say some of that is unmitigated by a reduced number 
that are hit by cars because of illegal crossings in the San 
Diego area.
    And the point that I would make is that there are a 
significant number of Americans who die at the hands of some of 
those who are criminals who do get across that desert, and that 
number is far, far greater in number, and we need to be 
protecting and defending the American people. That is what this 
policy is about.
    I look forward to the testimony.
    Thank you, Madam Chair, and I yield back.
    Ms. Lofgren. Thank you.
    And in the interest of proceeding to our witnesses and 
mindful that we will be having a series of votes in the near 
future, I would ask that other Members submit their statements 
for the record within 5 legislative days.
    Without objection, all opening statements will be placed 
within the record.
    And, without objection, the Chair will be authorized to 
declare a recess of the hearing at any point.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Chairman, Committee on the 
                               Judiciary
    Today we continue our examination of the earlier immigration reform 
efforts. As we have done with the 1986 Act, we are looking to the 1996 
example to inform us as we work to get it right this time.
    Congress passed the IIRAIRA in 1996 as a ``get tough'' approach to 
immigration management. But rather than ending illegal immigration, 
there are more illegal immigrants ten years later than at any other 
time in history. Why did this ``get tough'' law fail? Perhaps it failed 
because it substituted an enforcement-only approach instead of an 
approach that was balanced and pragmatic. Like IRCA, the 1996 law 
turned out to lack options to meet the real-world needs of immigrants 
and employers.
    The IIRAIRA was outwardly very tough. It doubled the number of 
Border Patrol agents and started the spate of fence building on the 
Southern border. It sped removal and reduced the ability of courts and 
the immigration service to weigh humanitarian factors. It made refugee 
and asylum laws much more strict.
    There were some things about that law that are positive, if 
implemented fully. Such aspects of IIRAIRA as pilot programs to test 
employment eligibility verification, visa waivers for certain 
countries, and enhanced sentences for those who enslaved or abused 
immigrants seemed to be positive steps at the time.
    But by and large, IIRAIRA was a restrictive law in which 
responsibility and enforcement fell on the powerless aliens, such as 
through the statutory bars to re-entry for people who had to leave the 
country even if there were pressing humanitarian reasons. Attempts to 
address these problems through follow-up technical modifications were 
derided and dismissed as ``amnesty'' programs. And so, once again, here 
we are seeking a solution.
    None of the 1996 law's get-tough provisions addressed the root of 
the immigration issue. Indeed, they may have made it worse by cutting 
off the circular migration that has always existed in the Americas.
    Today we will hear from nationally recognized experts, including a 
witness who labored mightily to try to implement IIRAIRA while he was 
with the government. We hope to take away valuable lessons that will 
help guide our work over the coming months to develop a controlled, 
orderly, and fair immigration system.

    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
 Subcommittee on Immigration, Citizenship, Refugees, Border Security, 
                         and International Law
    This hearing will examine the shortfalls of 1996 Immigration Reform 
Legislation. The most significant bills from that period are the 
Antiterrorism and Effective Death Penalty Act of (AEDPA) and the 
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
    AEDPA was intended to deter terrorism, to provide justice for 
victims, and to provide an effective death penalty. It was passed by a 
Republican-controlled Congress following the Oklahoma City bombing and 
signed into law by Democratic President Bill Clinton. It also has 
provisions which have an impact on immigration law.
    Among other things, AEDPA requires mandatory detention of non-
citizens who have been convicted of a wide range of criminal offenses, 
including minor drug offenses. IIRIRA expanded this list to include 
more offenses.
    One of the troublesome aspects of these mandatory detention 
provisions is that they are not restricted to serious criminal 
offenses. Under these provisions, mandatory detention may apply to 
aliens who were convicted of a crime for which no time in prison was 
actually served because the crime was so insignificant.
    Mandatory detention also is required in expedited removal 
proceedings. My Save America Comprehensive Immigration Act of 2007, 
H.R. 750, would eliminate mandatory detention for aliens in expedited 
removal proceedings. This apples even if the alien has never been 
convicted of any criminal offense and does not pose a flight risk. This 
is particularly troublesome in view of the fact that many of the aliens 
in expedited removal proceedings are women and children or members of 
some other vulnerable population.
    Mandatory detention is wrong and it wastes resources. It requires 
the detention of people who do not need to be detained despite the 
shortage of detention space for aliens who really do need to be 
detained. It makes more sense to provide discretion for releasing 
people in detention if they are not a danger to the community or a 
flight risk, which is the standard for aliens who in removal 
proceedings but are not subject to mandatory detention.
    AEDPA authorized state and local police to arrest and detain aliens 
who are unlawfully present in the United States, which is a violation 
of civil immigration law, but only in the case of aliens who have been 
convicted of a felony in the United States. AEDPA required a nexus 
between civil immigration law violations and the criminal behavior 
before local police could detain individuals with civil violations.
    IIRIRA went further and authorized state and local police to 
enforce civil immigration laws when there is a ``mass influx'' of 
foreign nationals, the situation requires an immediate response from 
the federal government, and federal officials obtain the consent of the 
state or local supervising department.
    IIRIRA also established a mechanism which can be used to delegate 
immigration law enforcement authorities to state and local police 
provided the officers have undergone adequate training and have entered 
into a formal agreement with the Department of Justice. This is known 
as the MOU process, for ``memorandum of understanding.''
    In addition, IIRIRA provides that public employees cannot be barred 
from reporting immigration-related information about a particular 
individual to the immigration service. This was done in response to 
state and local laws or executive orders that had been enacted around 
the country to prohibit such disclosures. My Save America Comprehensive 
Immigration Act would strike this provision.
    IIRIRA includes a wide variety of changes which made it far easier 
to deport or exclude non-citizens for minor criminal violations which 
occurred many years ago. Among other things, IIRIRA lowered the 
sentence and monetary amount thresholds for many of the crimes on the 
list of aggravated felonies and other excludable or deportable offenses 
and did so on a retroactive basis--meaning that offenses that were not 
previously deportable became deportable retroactively in 1996, even if 
they occurred in earlier years.
    My Save America Comprehensive Immigration Act would provide 
Immigration Judges and the Board of Immigration Appeals with the 
discretion to avoid removal on the basis of nonserious offenses. It 
provides that a conviction which did not result in incarceration for a 
year or more may be disregarded for immigration purposes as a matter of 
discretion. This permits the adjudicator to base the removal decision 
on whether the specific offense involved warrants removal.

    Ms. Lofgren. We have four distinguished witnesses here 
today to help us consider the important issues before us.
    First, I am pleased to welcome Dr. Douglas Massey, a 
professor of Sociology and Public Affairs at Princeton 
University. Professor Massey currently serves as the Director 
of Graduate Studies at Princeton's Woodrow Wilson School, and 
his research has focused on topics ranging from international 
migration to urban poverty. Professor Massey currently serves 
as President of the American Academy of Political and Social 
Science and co-edits the Annual Review of Sociology. He 
reviewed both his master's and doctorate degrees from 
Princeton.
    We will next hear testimony from Paul Virtue, a former 
general counsel to the United States Immigration and 
Naturalization Service. During his tenure at INS, Mr. Virtue 
supervised over 600 attorneys on the nationwide litigation team 
and advised the INS Commissioner, the Commissioner of the White 
House and several other Federal agencies on immigration 
matters. Mr. Virtue currently practices law as a partner at 
Hogan & Hartson here in Washington and holds his law degree 
from the West Virginia University College of Law.
    I would like next to welcome Hiroshi Motomura, a professor 
from the University of North Carolina's School of Law. 
Professor Motomura co-authored the widely used law school case 
book, Immigration and Citizenship: Process and Policy. He has 
served as co-counsel in several recent immigration cases before 
the Supreme Court and is a member of the American Bar 
Association's Commission on Immigration. Professor Motomura is 
a graduate of Yale College and the University of California-
Berkeley's Boalt Hall School of Law.
    Finally, I would like to welcome Mark Krikorian, the 
Executive Director of the Center for Immigration Studies, a 
research organization here in Washington, DC, that examines the 
impact of immigration on the United States. Mr. Krikorian has 
published articles in The Washington Post, the New York Times 
and the National Review, among other publications. Mr. 
Krikorian holds a masters degree from the Fletcher School of 
Law and Diplomacy and a bachelor's degree from Georgetown 
University.
    Now, as you can tell, there are bells ringing and lights 
flashing, and what that tells us is that we have a series of 
votes on the floor of the House. We have nine votes, the first 
one of which will be 15 minutes and the remainder of which will 
be 5 minutes apiece. And that is the last of the day.
    I apologize that your testimony has been interrupted. We 
should reconvene--when would be a good time--an hour, really, 
it will be an hour. If you can come back at, let's say, 11:15. 
Is that possible for the witnesses to do? There is a cafeteria 
in the basement where there is coffee and doughnuts.
    We will recess and be back here at 11:15 to hear your 
testimony. Thank you very much.
    [Recess.]
    Ms. Lofgren. We are back in session, and I would like to, 
first, apologize to the witnesses. The voting took forever. But 
we are here now to hear your testimony. The entirety of your 
written testimony will be made part of the record.
    I would ask that each of you summarize your testimony in 5 
minutes or less, and we will remain within that time limit on 
questions.
    And, Dr. Massey, if you would begin.

 TESTIMONY OF DOUGLAS S. MASSEY, Ph.D., PROFESSOR OF SOCIOLOGY 
            AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY

    Mr. Massey. Chairman Lofgren, Ranking Member King, since 
1986, the United States has pursued a politics of contradiction 
with respect to Mexico.
    On the one hand, we have joined with Mexico and Canada to 
create an integrated North American market and made 
arrangements for the free movement of goods, capital, 
information, resources and services across our borders.
    On the other hand, within this otherwise integrated market, 
we have acted unilaterally in a vain attempt to block the 
movement of labor. This contradictory policy has not only 
failed, it has backfired, producing outcomes that are 
categorically worse than if we had done nothing at all.
    Under pressure from U.S. Treasury in 1986, Mexico joined 
the general agreement on tariffs and trade and looked northward 
to join Canada and the United States in a new free trade 
agreement, which was enacted on January 1, 1994. Since that 
date, Mexico and the U.S. have formally been committed to 
unifying markets within North America.
    As shown in figure one, total trade between the two 
countries--it is not advancing--total trade between the two 
countries has skyrocketed, increasing eight times between 1986 
and 2000. Since 1986, the number of exchange visitors from 
Mexico has tripled, the number of business visitors has 
quadrupled, and the number of intercompany transferees has 
grown five times. Within this rapidly integrating economy, 
however, U.S. policymakers have somehow sought to prevent the 
cross-border movement of workers, in essence, seeking to 
integrate all markets except for one, that for labor.
    To finance this fundamental contradiction, beginning in 
1986 we adopted an increasingly restrictive set of immigration 
and border enforcement policies. Let's just do it without the 
slides.
    To connect this fundamental contradiction, beginning in 
1986, we adopted an increasingly restrictive set of immigration 
and border policies. First, the Immigration Reform and Control 
Act granted $400 million to expand the Border Patrol, the 1990 
Immigration Act authorized hiring of another 1,000 officers, 
and in 1993, these new personnel were deployed in Operation 
Blockade as part of an all-out effort to stop unauthorized 
border crossing in El Paso, a strategy that was extended to San 
Diego in 1994 as Operation Gatekeeper.
    Finally, the 1996 Illegal Immigration and Immigrant 
Responsibility Act provided funds to hire another 1,000 border 
officers per year through 2001.
    From 1986 to 2002, the Border Patrol's budget increased by 
a factor of 10, the number of hours spent patrolling border 
grew eight times, and the number of Border Patrol officers 
tripled. In essence, the U.S. militarized the border with its 
closest neighbor, its second largest trading partner and a 
nation which was committed by treaty to an ongoing process of 
economic integration.
    Rather than slowing the flow of immigrants into the United 
States, however, this policy of insisting on separation while 
promoting integration yielded an array of unintended and very 
negative consequences. The most immediate effect was to 
transform the geography of border crossing.
    Whereas, undocumented border crossing during the 1980's 
focused on San Diego and El Paso, the selective hardening of 
these borders after 1993 diverted flows to new and more remote 
locations. And as late as 1989, only one-third of undocumented 
migrants crossed outside of San Diego or El Paso, but by 2002, 
two-thirds were crossing somewhere else.
    And once they had been deflected away from traditional 
migration points, migrants kept on going. Before 1993, no more 
than 20 percent of all undocumented migrants went to States 
other than the three traditional destinations of California, 
Texas and Illinois, but by 2002, 55 percent were proceeding to 
some new State of destination. Undocumented migration was thus 
nationalized.
    In addition to transforming the geography of immigration, 
U.S. border policies had two additional unplanned effects. 
First, by pushing immigrants into more remote and less 
hospitable sectors of the border, the enforcement in San Diego 
and El Paso dramatically increased the number of migrant 
deaths. The rate of death during undocumented border crossing 
tripled from 1992 to 2002.
    In addition, although remote sectors were more dangerous, 
they were also less patrolled and contained fewer enforcement 
resources. By pushing migrants into desolate sectors of the 
border, U.S. polices, therefore, actually lowered the 
likelihood that illegal migrants would be apprehended.
    At first, the migrants unwittingly walked into the new wall 
of enforcement resources in these two built-up sectors and the 
probability of apprehension temporarily went up. Quickly, 
however, migrants got wise and went around the built-up sectors 
and crossed through empty deserts, sparsely populated ranch 
land and wild sections of the Rio Grande. And as a result, the 
probability of apprehension plummeted to record low levels.
    The financial costs of border crossing to migrants were 
nonetheless driven upward. The average cost of hiring a border 
smuggler tripled from $400 to $1,200 in real terms. 
Unfortunately, Mexicans did not respond to the new costs and 
new risks of border crossing by deciding not to migrate; 
rather, they decided to stay longer once they were here.
    As shown in the figure, the probability that a Mexican male 
or female would decide to undertake a first trip to the U.S. 
did not change from 1980 to the present. For men, the 
probabilities fluctuated between 1 and 2 percent per year, and 
for females, it has never exceeded a fraction of 1 percent. 
Rather than responding to the increased costs and risks of 
border crossing by staying home, Mexicans hunkered down and 
stayed once they had achieved entry. Rather than returning 
home, possibly to face----
    Ms. Lofgren. Dr. Massey, I forgot to announce that when the 
red light goes on, the 5 minutes are up. I turned it off, but 
if you could summarize, that would be great.
    Mr. Massey. Basically, what I would like to say is that the 
attempt to close off a border with our largest trading partner 
has backfired, and the rate of in-migration into the United 
States has not changed in 20 years. What changed was the rate 
of out-migration, and that doubled the rate of undocumented 
population growth in the U.S., and that was a complete function 
of our border policy.
    [The prepared statement of Mr. Massey follows:]
                Prepared Statement of Douglas S. Massey
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Lofgren. Thank you very much.
    Mr. Virtue, we will time this. When your yellow light goes 
on, you have about a minute left, and when the red light goes 
on, your 5 minutes are up.

  TESTIMONY OF PAUL W. VIRTUE, FORMER INS GENERAL COUNSEL AND 
 EXECUTIVE ASSOCIATE COMMISSIONER, AND PARTNER, HOGAN & HARTSON

    Mr. Virtue. Thank you, Madam Chair, Ranking Member King and 
Members of the Subcommittee. Thank you for the opportunity to 
appear before you this afternoon.
    The IIRIRA amended virtually every section of title two of 
the Immigration and Nationality Act. It represented the most 
comprehensive immigration legislation since the McCarran-Walter 
Act of 1952.
    For example, the Act authorized a substantial increase in 
Border Patrol agents, increased the penalties for illegal 
entry, eliminated the distinction concerning the rights of 
aliens based on entry to the United States, added a number of 
immigration-related crimes, including smuggling and visa fraud 
to the RICO predicate offenses, authorized expedited removal 
without a hearing for aliens who commit fraud or fail to 
present a proper visa, restricted eligibility for relief from 
removal, overhauled the process for the removal of inadmissible 
and deportable aliens from the United States, barred aliens 
from returning to the U.S. following periods of unlawful 
presence in the United States, added new crimes to the growing 
list of aggravated felonies, making that definition 
retroactive, and mandated detention for aggravated felons, 
including permanent residents, and placed significant limits on 
judicial review.
    Indeed, given the scope of the 1996 Act, it is difficult to 
conceive of an area, with the possible exception of a reliable 
system for verifying employment authorization, in which the 
Federal Government lacks powerful authority today to enforce 
our immigration laws.
    What we do lack, and always have lacked, are the adequate 
resources to secure the border against unlawful entry; to 
identify, detain and remove aliens who have committed serious 
crimes, to properly investigate and prosecute those who commit 
alien smuggling and document fraud; and to enforce measures 
against unauthorized employment.
    The challenge, thus, facing this Congress will be to find a 
balance in terms of the statutory mandates and to move to 
efficiently enforce the immigration laws, while keeping a keen 
focus on excluding or deporting the bad guys. The threshold 
question in that analysis, one that is outside the scope of 
this hearing, is whether we should continue to expend limited 
resources on the large percentage of the undocumented 
population in the United States to continue to contribute to an 
economic boom.
    The question that is within the scope of this hearing, 
however, is, in removing discretion from the authorities 
charged with enforcing our immigration laws, whether IIRIRA of 
1996 went too far. I submit that in a number of areas it did 
and by doing so actually limited the ability of the agencies 
responsible for enforcement to develop a rational set of 
enforcement priorities.
    Those areas are mandatory custody. Immigration detention is 
designed to serve two important enforcement goals. It ensures 
the alien's availability for proceedings and possible removal, 
and it protects the community from any potential danger the 
alien might pose. In a society like ours, however, those 
legitimate goals must be balanced against an alien's equally 
legitimate liberty interests.
    Historically, aliens taken into custody were afforded an 
opportunity to have these competing interests weighed by an 
immigration officer and by an immigration judge who could order 
them removed, or order them released or detained pending 
completion of removal proceedings and any appeals.
    In 1996, however, Congress enacted the mandatory detention 
scheme for aliens, including permanent residents, whose 
criminal convictions might subject them to removal. The impetus 
behind this change in the law was a concern that criminal 
aliens subject to removal proceedings were climbing at high 
rates.
    But even before Congress passed this legislation, concerns 
about absconders had been addressed effectively by the 
provision of increased detention resources, which gave 
immigration officers and judges greater flexibility and order 
in detention. In fact, the Clinton administration consequently 
advised Congress against including the broad mandatory 
detention provisions that ultimately were enacted.
    Secondly, restrictions on discretionary relief from 
removal. Prior to IIRIRA, aliens who were otherwise deportable 
could apply to an immigration judge to have their deportations 
suspended. If the application was granted, the alien would be 
eligible to adjust status. To qualify, aliens had to show they 
were continuously present for a minimum of 7 years, they were 
persons of good moral character and their deportations would 
result in extreme hardship. The IIRIRA changes increased that 
standard and severely limited the availability of discretionary 
relief.
    The other aspects are the limitations on judicial review of 
immigration decisions. Under IIRIRA, those court-stripping 
provisions provide that administrative findings of fact are 
conclusive unless a reasonable adjudicator would be compelled 
to conclude to the contrary. So, consequently, those provisions 
have substantially diminished the ability of non-citizens to 
have their cases heard before a neutral arbiter.
    And, finally, the 3-and 10-year bars on admission. As we 
know, the IIRIRA created bars to admissibility for people who 
have been in the U.S. for more than 6 months or more than 1 
year and who return to their home country. The problem that 
that created has been a paradoxical one and that is that it 
has, actually, created an incentive for people who are here 
unlawfully to remain here unlawfully rather than to be able to 
go home and apply for immigrant visas.
    So, in conclusion, the net result of the enforcement 
measures enacted in IIRIRA has been a reduction in the 
discretion available to immigration authorities in 
administering the immigration laws. I would submit that 
discretion should be restored in a number of years.
    Thank you.
    [The prepared statement of Mr. Virtue follows:]
                  Prepared Statement of Paul W. Virtue
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Lofgren. Thank you, Mr. Virtue.
    Mr. Motomura?

TESTIMONY OF HIROSHI MOTOMURA, KENAN DISTINGUISHED PROFESSOR OF 
        LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

    Mr. Motomura. Madam Chair, Ranking Member King, Members of 
the Subcommittee, thank you for the privilege of appearing 
before you today.
    I would like to suggest two ways to think about the 1996 
Act. I will state them briefly and then elaborate. First is 
that an enforcement-only approach to immigration legislation 
will undermine the rule of law, and the second is that any 
evaluation of the Act needs to look closely at the effects on 
U.S. citizens.
    First, on enforcement, an immigration system that respects 
the rule of law needs to include not only enforcement but three 
other essentials of our legal system. One is discretion, 
subject to legal standards; second is decision-making that is 
based on expertise and subject to checks and balances; and the 
third is due process.
    Now, speaking to discretion, that can mean different 
things, but I think it is very important to see the difference 
between unreviewable discretion that is outside the law and the 
sort of discretion that respects the rule of law. Especially in 
the early part of the 20th century, discretion and immigration 
was largely discretionary. This was most extreme for Mexican 
immigrants. They were tolerated when the economy needed them 
but deported when they were deemed expendable.
    Now, this discretion, historically, was unreviewable and 
arbitrary but was gradually channeled, first for Europeans and 
Canadians and later for all immigrants, into formal mechanisms 
with legal standards, like suspension of deportation and 
adjustment of status.
    Now, the 1996 Act produced opportunities to apply 
discretion, subject to legal standards and review. For example, 
it curtailed eligibility for cancellation of removal and it 
provided for mandatory detention.
    So to illustrate the problems that result, mandatory 
detention makes it much harder, for example, to obtain counsel, 
and when we impair access to counsel, we don't know what errors 
are being made in rule proceedings.
    The 1996 Act also increased the number of discretionary 
decisions that aren't subject to legal standards or meaningful 
administrative or judicial review. For example, the Acts have 
really reduced judicial review or discretionary denials of 
relief.
    In short, the 1996 Act moved away from discretion that is 
case-by-case justice, according to legal standards, and it 
moved back toward discretion that can be arbitrary, 
unpredictable and discriminatory.
    Now, thinking about discretion leads us to think more 
generally about decision-making based on expertise and subject 
to checks and balances. One example here is expedited removal, 
which applies, in theory, only to someone who lacks any 
defenses to removal. But the question is whether any individual 
is really such a person lacking defenses.
    Expedited removal gives ultimate authority to low-level 
officials and thus eliminates the procedural protections 
afforded in immigration court by judges and counsel. Again, we 
don't know what mistakes are being made, for example, denying 
asylum to someone who has a right to protection under both U.S. 
and international law.
    I mentioned lack of judicial review of discretionary 
decisions, but lack of judicial review is a broader problem. 
Although the Supreme Court has essentially compelled some 
restorations, significant bars to review remain, and they are 
especially troubling because of a parallel reduction in BIA 
review.
    Along with accuracy, a related casualty is uniformity, 
which can only be achieved with recorded, formal administrative 
and judicial decisions. A lot of it isn't uniform. It is 
unequal, it is unpredictable, and its unpredictability means 
inadequate notice. Any system of immigration law is doomed to 
make mistakes if we simply hope that they will come to light 
without any mechanism being established to discover them, and a 
system that can't have confidence in its accuracy diminishes 
respect for the rule of law.
    And most of what I have identified as problems of 
discretion or decision-making can also be thought of as due 
process problems, but the 1996 Act has other kinds of due 
process problems as well. I will just mention one: retroactive 
changes to immigration law. This practice pre-dates '96, but 
the Act made it much worse by making many non-citizens 
deportable for reasons that had no immigration consequences 
originally.
    Retroactive laws fail to give the notice that is essential 
to due process so that individuals can understand the 
consequences of their actions, and lawyers can give reliable 
advice.
    Let me quickly address my second major theme, which is 
effects on U.S. citizens. An enforcement-only approach leads to 
mistakes that cause devastating harm to many citizens who may 
be the non-citizen's husband or wife, father or mother or 
child. When our immigration system doesn't adhere to the rule 
of law, we diminish and we devalue what it means for them to be 
American citizens.
    An example is the cutback on cancellation eligibility for 
applicants who typically have immediate family members who are 
citizens. Another is the failure to consider citizen children 
for waivers of the 3-and 10-year bar.
    My two main points today are that any assessment of the 
1996 Act should adopt two yardsticks: The rule of law and 
effects on U.S. citizens.
    Let me close by suggesting that if we are to foster the 
integration of immigrants into American society, it is 
essential to build confidence in an immigration law system on 
the part of immigrants and the citizens who are closest to 
them. And integration of immigrants, in turn, is essential to 
the long-term success of any immigration policy.
    Thank you.
    [The prepared statement of Mr. Motomura follows:]
                 Prepared Statement of Hiroshi Motomura
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Lofgren. Thank you very much.
    And, finally, Mr. Krikorian?

  TESTIMONY OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR 
                      IMMIGRATION STUDIES

    Mr. Krikorian. Thank you, Madam Chairwoman and Members of 
the Subcommittee.
    The shortcomings of the 1996 immigration law come in two 
parts. One is a defect in the bill itself, and I think more 
important is the defect in the execution of the law.
    As far as the bill itself, the law itself, there was one 
very large mistake in the 1996 law and that was rejecting the 
recommendations of Barbara Jordan's Commission on Immigration 
Reform to cut overall legal immigration. The Jordan commission 
recommended a reduction of about one-third in total legal 
immigration, focusing in particular the family portions of the 
flow more tightly and eliminating certain categories.
    The original versions of what became the 1996 law 
incorporated all of the Jordan commission's recommendations, 
including those regarding legal immigration, but Congress split 
the legislation and passed only the illegal immigration 
portions and abandoned the legal immigration parts of Ms. 
Jordan's recommendations.
    This was a mistake for two reasons. One, immigration is 
simply too high. Mass immigration is not compatible with the 
goals and the characteristics of a modern society, but that is 
the subject for a different hearing.
    Secondly, the goal of the 1996 law, ultimately, was the 
reduce illegal immigration, and even in this respect, the 
decision not to streamline and reduce legal immigration was a 
mistake because of the intimate connection between legal and 
illegal immigration. In other words, it is simply not possible 
to have high levels of legal immigration without at least 
creating very intense pressures for high levels of illegal 
immigration.
    But I would submit the bigger problem with '96 is the 
execution of the '96 law provisions and immigration law, in 
general, since then.
    Barbara Jordan told this very panel in 1995, ``Credibility 
and immigration policy can be summed up in one sentence: Those 
who should get in, get in; those who should be kept out are 
kept out; and those who should not be here will be required to 
leave.'' And that simply hasn't happened.
    To understand why that hasn't happened, the storyline has 
developed that the enforcement efforts, starting in the 1990's, 
had the perverse effect of increasing settlements of illegal 
immigrants. This is what Professor Massey was talking about. 
And the storyline goes this way: that illegal aliens were 
happily coming and going in circular migration flow, as they 
put it, until enforcement made it harder to get back in, and, 
therefore, the incentive was to stay here rather than to come 
and go. The broad claim, basically, is that border enforcement 
creates illegal immigration.
    The absurdity of this claim is clear from the top of the 
two figures that I have here. The Census Bureau shows that long 
before new border enforcement measures, Mexican immigration, 
which is a pretty good proxy for illegal immigration since it 
accounts for most illegal aliens and most Mexicans either are 
or were illegal aliens, Mexican immigration has been growing 
rapidly for at least a generation. There weren't even 800,000 
Mexicans in the United States in 1970, and that has doubled 
each decade, long before there was any border enforcement of 
significant consequences.
    But let's concede, for the sake of argument, that there 
actually is something to this, that the rate of return of 
illegals, that the minority of Mexican immigrants who went back 
and forth, that minority has gotten even smaller.
    The reason, though, is not just border enforcement because 
something else was going on in the 1990's, not just increases 
in border enforcement, modest though they were, frankly, but 
also an almost complete abandonment of interior enforcement, as 
the lower second of the figures I have shows.
    And so what has caused, to the extent there has been an 
interruption of this back and forth, it is the combination, the 
dysfunctional combination of increased border enforcement with 
the complete abandonment of interior enforcement, which simply 
reduces the incentive for illegal aliens to leave. This is 
well-documented. The bottom graph shows the number of fines 
issued to employers, which fell to three, a total of three in 
2004. Other factors also declined related to interior 
enforcement. And this sends illegal aliens the message that it 
is hard to get in or a little harder, but if you can make it, 
you are home free.
    We have seen a minor change in that over the past year. The 
Administration has permitted and asked for funding for some 
modest increases of an enforcement, and it actually seems to be 
doing what it is intended to do, which is reduce illegal 
settlement and increase the return migration of illegal aliens.
    This doesn't mean the problem is solved. This means that we 
have taken some baby steps now over the past year in the right 
direction and that the proposals for what has come to be called 
comprehensive immigration reform would actually short-circuit 
this progress and return us to where we were before, which is 
continually increasing illegal populations.
    Thank you.
    [The prepared statement of Mr. Krikorian follows:]
                  Prepared Statement of Mark Krikorian
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Ms. Lofgren. Thank you very much.
    Before we go to questions, I learned that Dr. Massey has a 
train to catch, and I don't know whether you want to miss your 
train and take our questions or have us submit our questions in 
writing to you. The choice is entirely yours with no hard 
feelings on our part. Okay.
    I am going to stick very closely with the 5 minutes, given 
the lateness of the hour.
    If I understand your testimony correctly, Dr. Massey, you 
basically are saying that the level of in-migration is about 
the same every year. It is who stays here that has contributed 
to the increase in the number of people who are here without 
their documents.
    Is that pretty much a correct summary?
    Mr. Massey. As far as I can tell, the rate of in-migration 
from Mexico hasn't changed much in 25 to 30 years. What changed 
was the rate of out-migration back to Mexico, and that is 
largely a function of our own border policy. So by militarizing 
the border with your friendly trading nation, you decrease the 
rate of out-migration.
    Ms. Lofgren. I have a question. I am just looking at this 
chart. It looks to me, and I am not suggesting that it is 
causative so much as correlative, that the amount of fines for 
employers, which I guess you could use a rough-cut measure of 
increased workplace enforcement, seems to correlate with an 
increase in the number of illegal immigrants here. I don't 
know, this is an interesting chart.
    But let me tell a story and ask a question of Mr. Virtue 
and Mr. Motomura, since you are experts in current immigration 
law from your testimony.
    We had a situation in Santa Clara County. Things like this 
happen all the time, but it was in the newspaper and there was 
a tremendous outcry in the public as a consequence. And here is 
the situation. A Jewish woman from Russia, she was a Russian, 
came to the United States. She didn't apply for asylum; she 
came on a temporary visa. I believe it was a visitor's visa. 
She might have actually been qualified for asylum because of 
the oppression against Jews in Russia at the time, but she 
didn't have the right visa.
    She overstayed her visa, she violated the rules in that 
regard, but she met and fell in love with an American man, and 
they got married, and they had a baby. And she was teaching 
piano in her home with the infant and was associated with the 
Jewish temple in Sunnyvale, CA.
    Well, he was an American citizen, born and raised here. 
They went to apply to make her a legal resident and instead 
they arrested her because she had overstayed her visa and they 
would not allow her to leave, even though she was nursing this 
infant. And then, ultimately, they deported her back to Russia 
and said that she could not come back for 10 years, even though 
by then her infant, obviously, would have no memory of her at 
all.
    What in the 1996 Act would lead to that result, and what 
changes would we need to make so that a woman like that would 
be able to stay with her U.S. citizen husband and infant?
    Mr. Virtue and Mr. Motomura, just real quickly.
    Mr. Virtue. As I understand the case, she actually should 
have been permitted to remain here, even under the laws that 
existed in the 1996 Act, because she came lawfully on a visa, 
and even though she overstayed and was now out of status, her 
marriage to a U.S. citizen should have made her eligible. The 
agency, however, doesn't have to permit the person to pursue 
the green card, pursue the visa petition and adjust status, but 
normally they would. So, I am not exactly sure what happened in 
that particular case, but I----
    Ms. Lofgren. Maybe it is not fair to ask the particulars of 
the case, but there have been many cases on the 3- and 10-year 
bar that have come to--I hear that all the time on the floor of 
the House where Members on both sides of the aisle say they 
have these situations that are just really very tough ones and 
how do we fix this. How would we fix this?
    Mr. Virtue. If she had come without a visa, for example, 
she had come from--well, if she had come in without a visa, 
then she would not be eligible to adjust her status here 
because of the elimination of section 245(i), and the 3-and 10-
year bar would prevent her from returning to her home country 
to apply for an immigrant visa without a waiver that is pretty 
difficult to get.
    So a change would be to eliminate the 3-and 10-year bar. 
That would----
    Ms. Lofgren. Or maybe make it some other way that it is 
applied?
    Mr. Virtue. Exactly. Maybe have a waiver that is more 
reasonable in terms of approval.
    Ms. Lofgren. My time is almost up.
    Mr. Motomura, do you have anything to add?
    Mr. Motomura. Well, I would endorse everything that Mr. 
Virtue said on the legal front. I would only add that this may 
illustrate a couple of other points. One is that we have 
processing delays that make it very difficult for people to 
obtain the relief to which they are entitled. And, secondly, we 
have information gaps in this and in other areas, particularly 
where there is no right to counsel. You have to add those to 
the legal issues that Mr. Virtue addressed.
    Ms. Lofgren. Thank you very much.
    I will now yield to Mr. King for his 5 minutes.
    Mr. King. Thank you, Madam Chair.
    First, Mr. Massey, you testified that the numbers of deaths 
in the desert between 1992 and 2002 essentially tripled over 
that decade period of time. Would you care to reiterate your 
analysis of the reasons for that?
    Mr. Massey. The concentration of enforcement resources in 
urban areas, namely San Diego and El Paso, basically diverted 
the flows around them.
    Mr. King. And those resources would be?
    Mr. Massey. Those resources would be more Border Patrol 
officers, more equipment, more intensive patrolling efforts and 
building of walls.
    Mr. King. And in fact if we looked at the Border Patrol 
increase in numbers, that took place in probably the second 
half of that decade rather than the first half. So one might 
believe that the facilities had the initial impact on that, 
that being the physical structures, such as the fencing?
    Mr. Massey. People went around the fencing.
    Mr. King. I thank you.
    And so, Mr. Massey, if we could build--and what you said is 
fencing is effectively, at least for that area, and they will 
go around the end.
    Mr. Massey. They will go around the end, right.
    Mr. King. So if we could build a fence from San Diego to 
Brownsville--and let me go to the extreme and hypothetical so 
we don't have to do definitions here--all the way down to hell 
and all the way up to heaven, it was entirely impermeable but 
directed all traffic to the ports of entry and we had our ports 
of entry beefed up so that we had the kind of surveillance 
there that is more effective than we have today, would you 
agree that that would solve a lot of the illegal traffic across 
our border?
    Mr. Massey. Not unless you had officers patrolling----
    Mr. King. I would agree with that.
    Mr. Massey. If you had officers stationed every 500 yards 
along the entire border and built a fence, you would probably--
--
    Mr. King. Let me say it is impermeable. Our hypothetical 
covers that.
    Mr. Massey. Well, if you assume the border is impermeable, 
then it is, by definition, impermeable.
    Mr. King. Okay. And I am going to go to another point here 
then, and I didn't think you could actually out-hypothetical me 
here. [Laughter.]
    Let me go to another point. If you were going to import 
people from another population, and they had a violent crime 
rate of, say, three times greater than the one of the recipient 
population, would you expect then to see the crime rate 
increase in the recipient nation?
    Mr. Massey. No, I would not.
    Mr. King. Would you care to explain that answer?
    Mr. Massey. Because migration is highly selective, and the 
criminals aren't the ones that are likely to be moving.
    Mr. King. Could you explain why 28 percent of the inmate 
population in our Federal penitentiaries are criminal aliens?
    Mr. Massey. They are largely on immigration offenses, 
immigration-related offenses.
    Mr. King. That really, I don't think, will hold up under 
analysis. But, also, a GAO study that was done and released in 
April of 2005 does report to those things and has analyzed the 
staff funding, and I would ask unanimous consent to introduce 
into the record the GAO study from 2005.
    Ms. Lofgren. Without objection.
    [The information referred is available in the Appendix.]
    Mr. King. Thank you.
    Just to make a couple of points here is that I think this 
analysis actually does hold up and that if you are going to 
take a general population of a country that is more violent, 
you can expect at least a cross-section of those people to 
yield a more violent result.
    If there are $65 billion worth of illegal drugs coming 
across that border, that also is a self-filtration process that 
brings in people that are more likely to at least be involved 
in the drug trade and one would presume more violent. And if 
you bring in people who demographically are more violent, for 
example, young men, you can expect your crime rate to go up.
    And I would submit that the violent death rate here in the 
United States is 4.28 per 100,000; in Mexico, it is 13.2 per 
100,000; in Honduras, it is nine times; in Colombia, it is 15.4 
times. There are no numbers for El Salvador.
    I think that it adds up, and the demographics that we know 
predict why 28 percent of our population in our prisons are 
criminal aliens, Mr. Massey.
    In the short time that I have--and I thank you for you 
answers--Mr. Krikorian, would you care to comment on that, on 
what one could expect if one looked at those demographics?
    Mr. Krikorian. Well, there actually has been a report on 
this not that long ago that actually contradicted the point you 
are making, in other words, that immigrants are less likely to 
engage in crime. Unfortunately, the data source used from the 
census was a corrupted source. The point is we don't really 
know the answer to this using data.
    What we do know, though, or what we are pretty sure of is 
that the crime rate explodes from the first to the second 
generation, that actually the children of immigrants are 
dramatically more likely to engage in criminal activity than 
native-born Americans, and that is a consequence, clearly, of 
immigration policy and one we have to address.
    Mr. King. Thank you, Mr. Krikorian.
    Thank you, Madam Chair. I yield back.
    Ms. Lofgren. The gentleman's time has expired.
    The gentleman from Massachusetts is recognized for just 5 
minutes.
    Mr. Delahunt. I thank the Chair.
    These are all very fascinating figures, and we can do an 
analysis on a gut basis. I have my own analysis about the $65 
billion. If we didn't have people consuming the drugs in this 
country that are violating our own statutes, then maybe we 
wouldn't be having the $65 billion coming from South America.
    So I don't know if we are doing a very good job about 
treating in a holistic way the--but why don't--and I would ask 
the Chair and the Ranking Member if there ought to be an 
examination in terms of whether this 28 percent--I mean, if 
there are immigration violations, then let's find out the 
answers to this. I think we should know that because I think it 
is important we get on the same page as far as the statistics 
are concerned.
    I have heard everywhere from 8 million to 20 million 
undocumented, illegal----
    Ms. Lofgren. If the gentleman will yield.
    Mr. Delahunt. I will yield.
    Ms. Lofgren. We are going to have a series of hearings, two 
to three a week, and we will be examining many of the data 
points, because we can argue about our opinions but hopefully 
we will not be arguing about the facts.
    Mr. Delahunt. Yes. I mean, my opinion and yours, the Chair, 
and the Ranking Member's opinion is just simply that, opinion, 
and it has no validity in terms of the discussion, with all due 
respect to all of us.
    I would also like to pose a question. You know, we hear a 
lot about our labor needs, and there was a panel yesterday that 
talked about our labor needs, and of course that shifts over 
time. And one problem that was put forth was that it is not 
timely in nature or timely in reality. How do we go about 
determining what our labor needs are to continue to fuel our 
national economy appropriately?
    And ought there be, if none really exists other than 
snapshots at a particular time, should there be some sort of 
advisory group, comprised of members of the business community, 
members from academia, members of organized labor, working with 
the appropriate Federal agency to determine what our labor 
needs are so we can match the availability of the slots for 
legal immigrants to come into this country to assist us in 
terms of meeting our economic needs as far as the workforce is 
concerned?
    Mr. Krikorian. Is that a question for any of us?
    Mr. Delahunt. Yes.
    Mr. Krikorian. I would like to respond to that. I would 
have to say it is really not Congress or the executive's job to 
gauge labor needs; that is for the market to deal with. And we 
have----
    Mr. Delahunt. But I am relating it, Mr. Krikorian, to that 
might be for the market to do, but if we don't have enough 
workers in this country to meet the demand, then the market is 
fine, but I want to make sure that our economy continues or 
hopefully prospers.
    Mr. Krikorian. But that is what I would challenge. Labor 
shortage is just a market signal that employers need to both 
pay more for the available labor and use the available labor 
more efficiently. In other words, my view would be that there 
should be no solely labor-related immigration at all, that 
people should be admitted for some other reason, family 
members, what have you, and then allowed to make their own way 
within the labor market.
    Mr. Delahunt. Fair point. But my point is, is there any 
gauge that currently exists that----
    Mr. Krikorian. There is no good gauge for that. If there 
were, the Soviet Union would still be around, because, in a 
sense, it is a kind of central planning----
    Mr. Delahunt. No. Don't try to----
    Mr. Krikorian. I am not trying to----
    Mr. Delahunt. What I am talking about is to have available 
data so that employers, the business community, can make 
decisions.
    Mr. Krikorian. By the time that data gets to someplace, it 
is already too old. That is the whole problem.
    Mr. Delahunt. My point is then, is it possible to make that 
data timely for a decision, to the other three witnesses?
    Mr. Motomura. Well, what I would add to that is that I 
agree that the market is important and determinative in many 
respects. I would agree with the gentleman's suggestion that 
the information needs to be had, but I also would caution 
against seeing labor needs as the ultimate driving force.
    Ms. Lofgren. The gentleman's time has expired.
    And we ask, since people are running for planes, the 
gentlelady from Texas to ask her 5 minutes' worth of questions, 
understanding that follow-on in writing questions are available 
to all of them.
    Ms. Jackson Lee. Let me thank the gentlelady for holding 
this important hearing and also to compliment this Subcommittee 
for the approach which we are now taking, which we have taken 
in the past but now taking it, I hope, with a direct target, 
and that is to try and, if you will, to move toward reasonable, 
rational but with certainty for immigrants, status immigrants 
who are likewise in limbo, those who are documented, and that 
is, I think, the important responsibility that we have.
    So I thank the witnesses, and I do apologize for not 
hearing your testimony. I was in a Homeland Security hearing.
    But I do know that IRCA, having been here at that time, was 
supposed to be the great savior. I think it was a great boon 
for lawyers, and I have no angst against them, being one 
myself, but it greatly limited the availability of 
discretionary relief. I think it even presented some of the 
concerns we have about immigration judges who failed to listen 
to any reputable response on confusion that might have abounded 
and caused the individual before them to be in this dilemma.
    We know that the INS lost fingerprints, applications. We 
know that children that were on lines with their families aged 
out waiting so long. We know that the IRCA restricted access to 
Federal courts, I think, in complete objection to the values we 
have here on due process. It established expedited removal 
proceedings unfairly, and it imposed mandatory detention, and 
it also, I think, had this uncanny ability to send thousands 
home deported who had never been to their home place, based 
upon some juvenile infraction that was turned into a felony.
    Some might think that my position is to be loose on 
immigration, and that is not the case. I want to be balanced 
and fair.
    So let me ask Dr. Massey, we have had a decade of 
enforcement, and as we look at Mr. Krikorian's graph, I don't 
think it shows anything except for the fact that we have failed 
in some way.
    Can we solve this problem with enforcement, enforcement, 
enforcement or do we need to fix some aspect of what was called 
696--or not 696, what was called the 1996 bill? Do we need to 
fix '96 with some consideration on these restrictive 
procedures, and we do we need to balance enforcement with a 
reasonable structure of immigration?
    Mr. Massey. I think that '96 and other legislation has 
really created a very unforgiving system and a very rigid 
system that needs to be reformed, because it limits discretion 
and puts people in impossible positions and forces them out of 
status, sometimes even if they tried to play by the rules.
    In terms of enforcement, I don't think that more border 
enforcement is going to help anyone. It is as if a homeowner 
has built a steel wall in the front of his house and he wants 
to get more secure so he is going to build a second layer of 
steel wall but he has no wall on either side and his back door 
is flapping open. It is not going to enhance your security in 
any way.
    I think if you want to do enforcement, it should be 
internal enforcement and for that you would need some kind of 
tamper-proof ID card that an employer could use to verify the 
right to work in the United States. Border enforcement is not a 
good way to control immigration, and my data shows that it 
backfired.
    Ms. Jackson Lee. Not the only way.
    Mr. Virtue, I have legislation that has a provision for 
providing immigration judges with discretion when the basis for 
removal is a non-serious incident. As you well know, '96 wanted 
to go back and get--and I don't promote any of this, I want to 
criminals in jail, but is it important to train immigration 
judges and give some discretion as lawyers present hardship 
cases in the courtroom?
    Mr. Virtue. I don't think there is any question about that, 
Mrs. Jackson Lee. It is going to be important to make a 
judgment about where we use our limited resources, because they 
are always going to be limited. And so I think we have to make 
a judgment about whether we continue to expend resources to 
detain and deport people whose only offense is to be here 
unlawfully.
    We also have to make a judgment about whether we 
mandatorily detain and eliminate relief for permanent residents 
who have committed crimes 20 years ago that are coming back 
because of the retroactive effect of the definition of 
aggravated felony.
    So I agree with you, that, yes, there has to be discretion 
restored, not just at the immigration judge level, although 
that is very important, but also at the officer level.
    Ms. Lofgren. The gentlelady's time has expired.
    I would note that we have gotten a tremendous amount out of 
this hearing, despite the fact that we were interrupted by more 
than an hour of voting on the House floor, and I do thank all 
the witnesses for their testimony, their written testimony as 
well as their willingness to stick with us for questions.
    Member will have 5 legislative days to pose additional 
questions in writing to the witnesses, and we ask that you 
answer as promptly as you are able to so that your answers may 
be made part of the record. And, without objection, the record 
will remain open for 5 legislative days for the submission of 
any other additional materials.
    This hearing has helped illuminate numerous issues about 
the 1996 Act. I know that it will prove helpful to us as we 
move forward in our consideration of comprehensive immigration 
reform.
    We will see everyone at Tuesday, 11 a.m. next week for our 
next hearing, which will begin to examine enforcement, 
workplace enforcement.
    With that, this hearing is adjourned, with thanks.
    [Whereupon, at 12:55 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Submission to the Record by the Honorable Steve King, Ranking Member, 
 Subcommittee on Immigration, Citizenship, Refugees, Border Security, 
and International Law: ``Information on Criminal Aliens Incarcerated in 
  Federal and State Prison and Local Jails'' from the U.S. Government 
                  Accountability Office, April 7, 2005
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


   Answers to Post-Hearing Questions from Douglas S. Massey, Ph.D., 
    Professor of Sociology and Public Affairs, Princeton University
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   Answers to Post-Hearing Questions from Paul W. Virtue, former INS 
  General Counsel and Executive Associate Commissioner, and Partner, 
                            Hogan & Hartson
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Answers to Post-Hearing Questions from Hiroshi Motomura, Kenan 
Distinguished Professor of Law, University of North Carolina School of 
                                  Law
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


   Answers to Post-Hearing from Mark Krikorian, Executive Director, 
                     Center for Immigration Studies
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                                 
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