[Senate Hearing 110-110]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 110-110
 
                    COMPREHENSIVE IMMIGRATION REFORM

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 28, 2007

                               __________

                          Serial No. J-110-13

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director




























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E. Grassley, a U.S. Senator from the State 
  of Iowa, prepared statement....................................   142
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   154
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C................................................     7
Gutierrez, Carlos M., Secretary, Department of Commerce, 
  Washington, D.C................................................     5

                         QUESTIONS AND ANSWERS

Responses of Michael Chertoff to questions submitted by Senators 
  Leahy, Whitehouse, Cornyn, Coburn, Grassley, Feingold, Schumer 
  and Kennedy....................................................    45
Responses of Carlos M. Gutierrez to questions submitted by 
  Senators Kennedy, Feingold and Cornyn..........................   116

                       SUBMISSIONS FOR THE RECORD

Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C................................................   122
Fair Immigration Reform Movement (FIRM), Center for Community 
  Change, Washington, D.C., letter and attachment................   131
Gutierrez, Carlos M., Secretary, Department of Commerce, 
  Washington, D.C................................................   144
Honduran Unity, American Fraternity and Peruvian American 
  Coalition, Miami, Florida, joint letter and attachments........   149
National Immigrant Justice Center, Chicago, Illinois, statement..   156


                    COMPREHENSIVE IMMIGRATION REFORM

                              ----------                              


                      WEDNESDAY, FEBRUARY 28, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:08 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Feinstein, Feingold, 
Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, 
Sessions, Graham, Cornyn, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Thank you very much for being here. We are 
actually conducting business here in the back. I want to thank 
the Secretaries, both Secretaries--Secretary Gutierrez and 
Secretary Chertoff--for agreeing to appear.
    I also want to thank both of you gentlemen for the private 
meetings you have had with me and with a number of other 
Senators on both sides of the aisle on the issue of 
immigration. I have found them to be well worthwhile.
    I am hoping that the fact that both of you are here today 
will demonstrate the President's wholehearted commitment to 
working with us to enact comprehensive immigration reform 
legislation this year, because if we do not have the 
President's wholehearted cooperation and support, I think it 
would probably suffer the same fate as it did last year.
    We reported a comprehensive immigration reform bill. 
Senator Specter kept us practically around the clock until we 
did. But then we saw what happened. The Republican leadership 
decided that there would not be a House-Senate conference. 
Instead, they forced through a bill calling for billions to be 
wasted constructing a 700-mile fence along our 2,000-mile 
Southern border, sort of a Potemkin fence. And this year we 
have a renewed opportunity to do the right thing, and we 
should.
    By their votes in the most recent elections, the American 
people have reaffirmed America's traditional place as a Nation 
of immigrants. We all are either immigrants, came here as 
immigrants, or have immigrant parents or grandparents. We are 
not anti-immigrant. We are not racist. We understand people 
seeking a better life for their children and grandchildren as 
naturally as we do. Americans understand that comprehensive 
immigration reform does not mean criminalizing the hard work of 
law-abiding people, deporting millions of families who have 
lived here for years, or seeking to wall ourselves off from our 
neighbors and the world around us. Thankfully, the politics of 
fear did not succeed. Americans rejected the poisonous rhetoric 
of intolerance in favor of a more confident, realistic, and 
humane approach that finds strength in diversity and human 
dignity.
    If we are going to reclaim America's promise, we need to 
keep our eyes on the core principles of comprehensive reform. 
To his credit--and I praise the President for this- -he has 
called for comprehensive legislation and ``an immigration 
system worthy of America.'' We should all, Republicans and 
Democratic members alike, listen to the President's words on 
that. But he also has to demonstrate his commitment to those 
principles and lead Republicans toward achieving that goal, so 
that not as members of a political party, but as Americans, we 
can honor our history as a Nation of immigrants and strengthen 
our future and leadership in the world.
    The President has said that no one element of immigration 
reform can succeed without a comprehensive approach. The 
Committee-reported bill last year took a comprehensive 
approach. The Senate-passed bill took a comprehensive approach. 
The House-generated bill that the President signed just before 
the election did not take a comprehensive approach.
    Our broken system has fostered incongruities from coast to 
coast--from our biggest cities to our smallest towns, and from 
our factories to our farms. Reform is overdue. We have to be 
realistic about the millions of undocumented people in this 
country. We need to bring people out of the shadows. When we 
provide opportunity for people to be responsible, the vast 
majority will be, and we are all going to be better for it. We 
can and should do everything necessary to protect opportunities 
for our domestic workers. We need to reduce illegal immigration 
by reforming our temporary worker programs to allow more access 
to the unfilled jobs and unmet needs in our economy. These are 
not either/or propositions. We can do both.
    I will give you one example, and I do not mean this to be 
parochial, but we could show similar examples in every one of 
our 50 States. In Vermont, dairying--dairy farms--is more than 
a job or an industry. It is a way of life. Our agricultural 
economy depends on the hundreds of millions of dollars dairy 
farmers bring to our State every year. But that way of life is 
threatened when family dairies cannot find help to milk cows, 
deliver calves, and keep up with chores. Finding help is 
becoming increasingly difficult for hundreds of Vermont farms, 
and they have turned to migrant workers from Mexico and Central 
America. Currently, that means an estimated 2,000 foreign 
workers. We know there is something wrong with this hodgepodge 
arrangement in my State, and other States could say the same. 
We need to do better. We need to bring order and common sense 
to a broken system. In my State, Vermont dairy farmers should 
not have to choose between saving their family farms or obeying 
the law.
    The President has acknowledged that ``you cannot deport 10 
million people who have been here working.'' He said at the 
Southern border last August: ``It's unrealistic. It may sound 
good in certain circles and political circles. It's not going 
to work.'' He went on to outline what he called ``the best 
plan'' for those here illegally. He recommended saying to them, 
``If you have been paying your taxes and you have got a good 
criminal record, that you can pay a fine for being here 
illegally, and you can learn English, like the rest of us have 
done, and you can get in a citizenship line to apply for 
citizenship. You don't get to get in the front, you get to get 
in the back of the line.'' He called this as ``reasonable way 
to treat people with respect and accomplish what we want to 
accomplish, which is to be a country of law and a country of 
decency and respect.'' I agree with President Bush, and those 
were precisely the elements we had in the Senate bill last 
year.
    We have to create an immigration system for the 21st 
century that honors the great history and tradition of our 
nation and secures our future. What we must always remember is 
that immigrants are real people, they have families, they have 
hopes, they have dreams, the same way my grandparents did when 
they came here from Italy. In most cases, these are people who 
want to contribute, who work hard, who are striving to overcome 
the fortuitousness of where they were born. They contribute to 
our armed forces. They sacrifice and even die to protect the 
freedoms we have and that they hope to enjoy. They contribute 
to our economy, to our lifestyle, and they help with our most 
important responsibility when they raise America's children.
    So as I said, as the grandson of immigrants to the United 
States, I will work to reaffirm the promise of America's lamp 
beside the golden door for the poor and oppressed.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter, you showed iron will in moving this 
forward last year, and I will work again with you this year.

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

    Senator Specter. Well, thank you, Mr. Chairman. I am 
pleased to see you schedule this hearing before February has 
elapsed. I thank you for the comment about iron will last year 
in moving the bipartisan bill out of the Committee. And there 
is no piece of legislation for the Congress to move on and move 
on quickly than a comprehensive immigration reform bill.
    I am glad to see the two distinguished Secretaries who are 
involved in this issue--Secretary of Commerce Gutierrez and 
Secretary of Homeland Security Chertoff--here this morning to 
move this along. And I believe that we can maintain both 
objectives--the objective of rule of law and control of our 
borders--and at the same time maintain America as the beacon of 
hope for people who wish to come here to contribute and join in 
our democratic way of life.
    We are a land of immigrants, and each of us has his or her 
own story to tell. Both of my parents were immigrants. My 
mother came here in 1906 with her father and mother and a 
younger brother. My father was 18 in Russia in 1911 when the 
czar was in control. The czar wanted to send him to Siberia. He 
did not want to go to Siberia. He heard it was cold there. He 
wanted to go to Kansas. It was a closed question, and he got to 
Kansas, where I was born.
    We last year reported out on a bipartisan basis legislation 
which was comprehensive, which maintained the rule of law, and 
from the activities of the Congress last year and the work of 
the President's administration, there have been improvements 
made on border security. It is tighter now than it was a year 
ago, but not tight enough. And we need to have employer 
verification, but there has to be the Federal responsibility to 
provide fraud-proof identification so that with employers 
having the opportunity to verify citizenship, we can then be in 
a position to hold them accountable and responsible with tough 
sanctions.
    We need a guest worker program. There was a commitment to 
that last year by President Bush and by then-Speaker of the 
House of Representatives Dennis Hastert. And we need to be able 
to deal with the 11 million undocumented immigrants so that we 
can identify those who have criminal records and take 
appropriate action as to them. But it is a practical 
impossibility to deport 11 million undocumented immigrants. And 
if someone has a better idea than the legislation which we 
passed out of the Senate last year, this Committee is open to 
those ideas. We are prepared to listen.
    It is not amnesty to have legislation which imposes a fine, 
requires people to learn English, requires people to pay back 
taxes, puts them at the end of the line. It is not amnesty.
    Just one word of caution. I think it is very important that 
this Committee proceeds on a bipartisan basis where all of us 
know what is going on. I have been concerned about reading what 
is happening behind the scenes in the newspapers, and my 
staff--Michael O'Neill, a very able chief of staff--had brought 
to my attention several weeks ago that our staffs were not 
being consulted. And I called that to the attention of Senator 
Kennedy, who did such outstanding work last year, and before, a 
long history of outstanding work in immigration. And we worked 
on the McCain-Kennedy bill as the take-off last year for the 
Chairman's mark, for my mark as Chairman.
    But the staffs were not communicating, and I brought that 
to Senator Kennedy's attention again, and we had a meeting 
where we were told that staffs would communicate. And as of 
yesterday, we have not been consulted on the draft which 
Senator Kennedy's staff has being prepared. The old statement 
is if you want to be in at the landing, you have to be in at 
the take-off, and we have to have an exchange of information so 
that we are prepared to work with you. But we cannot segment 
this Committee. If we do, we are not going to have the kind of 
bipartisan cooperation which Senator Leahy and I were able to 
achieve last year for the betterment of the Committee and the 
betterment of the Senate and the betterment of the Congress.
    So with that one word of caution and concern, I hope we can 
share information and find a way to have both sides of the 
aisle involved every step of the way so that we can get a bill 
which will have bipartisan support.
    Again, I commend you, Mr. Chairman, for scheduling this 
hearing early, and I look forward to bipartisan cooperation 
with Senator Kennedy, who has been the leader for decades on 
this subject, and with you, Mr. Chairman. Thank you.
    Chairman Leahy. Over a hundred years with Senator Kennedy.
    [Laughter.]
    Chairman Leahy. Gentlemen, could you please stand and raise 
your right hand? Do you swear that the testimony you are about 
to give before the Committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Secretary Chertoff. I do.
    Secretary Gutierrez. I do.
    Chairman Leahy. We will go first with Secretary Gutierrez. 
He was sworn into office on February 7, 2005, as the 35th 
Secretary of the U.S. Department of Commerce. I have known many 
of those, but he is the first Secretary, I believe in any 
Department, who was born in Havana, Cuba, came to the United 
States with his family in 1960, joined Kellogg's as a sales 
representative in 1975--the year I came to the Senate. He rose 
to be president and chief executive officer in 1999, and I 
believe that made you the youngest CEO in that company's nearly 
100-year history. In April 2000, he was named Chairman of the 
board of Kellogg. He studied business administration at the 
Monterrey Institute of Technology in--you are going to have to 
help me--Mexico.
    Secretary Gutierrez. Queretaro.
    Chairman Leahy. Queretaro. Thank you.
    Secretary Michael Chertoff has appeared many times before 
this Committee. On February 15, 2005, as a circuit court of 
appeals judge, he was sworn in--resigned from that and was 
sworn in as the second Secretary of the Department of Homeland 
Security. He had been on the Third Circuit Court of Appeals 
before. He was previously confirmed by the Senate, served in 
the Bush administration as Assistant Attorney General for the 
Criminal Division. Before joining the Bush administration, he 
was a partner in the law firm of Latham & Watkins. From 1994 to 
1996, he served as Special Counsel to the U.S. Senate 
Whitewater Committee. Prior to that, he spent more than a 
decade as a Federal prosecutor, including service as a U.S. 
Attorney for the District of New Jersey, graduated magna cum 
laude from Harvard in 1975, magna cum laude from Harvard Law 
School in 1978, and from 1979 to 1980 served as a clerk to 
Supreme Court Justice William Brennan. He is a friend of many 
of us on this Committee.
    So, Secretary Gutierrez, please.

  STATEMENT OF CARLOS M. GUTIERREZ, SECRETARY, DEPARTMENT OF 
                   COMMERCE, WASHINGTON, D.C.

    Secretary Gutierrez. Thank you. Chairman Leahy, Ranking 
Member Specter, and members of the Committee, I am pleased to 
have this opportunity to discuss immigration reform with you, 
and I thank you for your leadership and your hard work on this 
important issue.
    For several years, we have been in the midst of a vigorous 
debate about the role of immigration in our country. This is 
not the first time, of course, in our Nation's history that 
immigration has been a source of contention in the halls of 
Congress and communities across America.
    One result of this passionate debate is that many words in 
our immigration discourse have lost their meaning, with people 
often just talking past each other. However, when you peel back 
the rhetoric and actually have a conversation with members on 
both sides of the aisle and on all sides of the issue--as I 
have on dozens of occasions over the past year--you find that 
while there are some policy differences, we are much closer to 
common ground than one would expect.
    Secretary Chertoff and I come before you today on behalf of 
the President with a very simple message. We believe that with 
some hard work a solution can be found, and we pledge to roll 
up our sleeves and work with you on a bipartisan basis to find 
a solution that serves our National interest.
    We believe that there are three goals central to a 
successful immigration solution: the first is national 
security, two is economic growth, and the third is American 
unity.
    First, we must have a focus on national security. We must 
secure our borders and implement a system that will enable us 
to know who enters our country and who is already here. In 
order to hold employers accountable, we need to give them new 
tools to verify the immigration status of workers. We must 
establish a tamper-proof biometric identity card for the 
temporary worker program which will enable us to verify, and 
also an employer verification data base, and I happened to 
bring with me a sample of a biometric card, very easy, the 
technology is very much available.
    Second, economic growth is essential for our continued 
prosperity as a Nation, and we recognize that immigration has 
been a crucial part of our economic growth. Immigrants make up 
15 percent of our labor force and account for about half of 
labor force growth since 1996. Even so, the reality is that 
there are thousands of jobs that aren't getting filled by 
Americans. There were 4.4 million job openings in December, and 
our unemployment stands at 4.6 percent. I have met with farmers 
from around the country whose fruit lay rotting in their 
orchards. Businesses across the Nation report difficulty 
filling jobs that are essential to their growth. Our 
immigration policy must recognize the reality of our labor 
needs by creating a temporary worker program.
    The third goal of our comprehensive immigration policy is 
American unity. We are a society governed by the rule of law, 
and we should not reward unlawful behavior. And we must also 
find a solution that brings workers out of the shadows and into 
the mainstream without amnesty. We believe we can do that.
    Many advanced economies face declining populations and 
struggle to assimilate immigrants. The U.S. can make 
immigration a competitive advantage because assimilation is a 
historic national strength. This can be an advantage for us 10, 
20, 30, 40, 50 years down the road.
    Assimilation also involves learning English. English is the 
language of custom and opportunity, and we do immigrants a 
great disservice if we do not urge them to learn English. In 
fact, one of the very best things that ever happened to me when 
I came to this country is that I was forced to learn English.
    In the end, we must craft a solution that is viable and 
workable, one that will not have us back in this room debating 
the same issue in 10 years. Our solution should enable the 
future flow of immigration to be orderly, legal, and 
controlled. The good news is that all of the pieces necessary 
are on the table. The question, of course, before us is: Do we 
have the political will to assemble them in a way that furthers 
the national interest?
    Mr. Chairman, I believe we do, and I look forward to 
working with you on this important matter. Thank you, sir.
    [The prepared statement of Secretary Gutierrez appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Secretary.
    Secretary Chertoff?

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

    Secretary Chertoff. Thank you, Mr. Chairman, and thank you, 
Senator Specter, and other members of the Committee. I also 
appreciate the invitation to come and speak to you today about 
the need for immigration reform, and I appreciate the 
leadership that members of this Committee have shown in moving 
forward on this very important issue to the Nation. I fully 
associate myself, obviously, with the testimony of Secretary 
Gutierrez. I also submitted a full statement which I request be 
made part of the record and which I will spare you repeating 
now.
    I would like to, however, very briefly touch on some of the 
highlights of progress that we have already made on some of the 
elements of a multi-pronged approach to immigration reform, 
including effective control of the border, building a tough 
interior enforcement program, and moving forward with respect 
to other dimensions of what will be a comprehensive solution to 
this issue.
    Since we launched the Secure Border Initiative last year, 
we have made some significant progress in gaining control of 
the border. This does not mean that we are declaring victory. 
What it does mean, though, is that we have begun to turn the 
tide, and this ought to be a source of encouragement, and it 
also needs to increase our determination to get the job done.
    We have increased the boots on the ground, adding new 
Border Patrol agents and enlisting the National Guard in 
Operation Jump Start. Importantly, we ended a pernicious 
practice called ``catch and release'' at the border, in which 
we used to release large numbers of non-Mexicans into the 
community. There was a story in the New York Times a few days 
ago that talked about how it was such a received wisdom that 
non-Mexicans would be released in order to disappear that 
people actually were told to turn themselves into the Border 
Patrol as soon as they crossed the border because it would mean 
that they could then make their way to the interior 
conveniently. We have reversed and ended that practice at the 
border, and this has begun to show some real results.
    In the three quarters of the year that have passed since we 
put into effect Operation Jump Start, we have seen in each 
quarter a significant decline in the number of people that we 
are seeing crossing the border and an even more significant 
decline in the percentage of apprehensions that reflect non- 
Mexicans. Both the statistics and the anecdotes support the 
view that this is a direct reflection that deterrence works, if 
we are determined and tough about enforcing the rules at the 
border.
    We have been equally tough enforcing the law at the work 
site in the interior. Last year, in fiscal year 2006, we 
arrested 716 individuals on criminal charges and more than 
3,600 on administrative charges. The increase in criminal 
prosecutions reflects 7 times the number of arrests that we saw 
in 2002, and it is the most significant year of worksite 
enforcement in living memory. In fact, in the last couple of 
weeks, we saw ICE agents raiding and arresting senior 
executives at the Rosenbaum-Cunningham International company, 
which provides cleaning services at several national 
restaurants across the country. And, we saw some guilty pleas 
yesterday from individuals at the IFCO Corporation, which was 
the subject of a raid earlier last year.
    Continuing our success in the area of tough enforcement at 
the border and the interior will require continued support from 
Congress. Among other important things that we have previously 
requested are additional sanctions for those individuals who 
dodge our checkpoints that we use in order to control the flow 
of illegal migrants or those who defy the orders of a DHS 
officer. We need to make it clear that not obeying the law will 
be criminally punishable.
    We need to continue to move forward with tough sanctions 
for those employers who willfully violate the immigration laws 
by building their businesses on the premise that they will be 
getting illegal migrants to do jobs. That means we need to 
continue to build and roll out our Electronic Employment 
Verification System, which is one very useful tool in helping 
employers verify the status of their workers.
    Finally, as the President has said, we have to create a 
lawful mechanism so that foreign workers can come into the 
United States and fill jobs that will otherwise go unfilled. 
Having a regulated channel for this kind of labor force is 
actually going to help our border enforcement. It is going to 
reduce the pressure on the border that is caused by the huge 
economic demand drawing the tens of thousands of migrants to 
cross the desert or cross the Rio Grande River to work in the 
United States. Bringing these people into a regulated, visible 
system will help our ability to promote national security.
    Now, we have talked with a number of Members of Congress, 
you and your colleagues, over the past few weeks, and we will 
continue to do so to listen carefully to your views on the 
issue of how precisely to craft an approach to dealing with 
this longstanding, difficult, but very important issue. And, we 
hope to return to you soon so we can work together in a 
bipartisan way on sound and long overdue immigration reform.
    But, let me conclude by making one point. What is critical 
to anything that Congress does is workability. Whatever 
measures are passed must work in the real world, and that seems 
to me to mean at least three general principles have to be 
followed.
    First, we need to have clear and consistent standards that 
will protect applicants, guide those who have to review 
applications, and defend against fraud. The more confusing and 
complicated a process is, the more arbitrariness and error find 
their way into that process.
    Second, we need to carefully design judicial review of 
application decisions to ensure that any temporary worker 
program that is put into effect treats applicants fairly but 
does not become a source of never-ending litigation. As a 
result of the Immigration Reform and Control Act of 1986's 
judicial review provisions, cases continue to jam Federal 
courts 20 years later. We still have not litigated our way out 
of that measure after two decades.
    Finally, there cannot be an amnesty, and that means we 
cannot give those who are here illegally because they have 
broken the law a leg up and an advantage over those who have 
played by the rules.
    I think those general principles, which are consistent with 
what the President said last year, are important as we move 
forward on this issue. We look forward to working with the 
Committee and with Congress to build on what we have done at 
the border and to give the American people the immigration 
system that they have a right to expect.
    Thank you.
    [The prepared statement of Secretary Chertoff appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    Secretary Gutierrez, last year when you testified, you 
spoke about the advantage people have if they learn different 
languages, and I agree we should do a lot more of that in our 
country. You also spoke of the advantage to immigrants learning 
English. I agree with you there. Both my mother and my wife had 
to learn English as their second language. But are you saying 
the administration would support making English the official or 
national language of the United States by law?
    Secretary Gutierrez. The point I was making is that-- and I 
go back to what the President said when he talked about 
immigration, that if you learn English, you can go from 
cleaning an office to managing an office.
    Chairman Leahy. But you are not asking the Congress to 
legislate in this area of language?
    Secretary Gutierrez. No. We believe that there is a lot 
that we can do to ensure that immigrants understand that it is 
in their interest to learn English, to be part of society, and 
to be integrated.
    Chairman Leahy. There I absolutely agree. Again, my 
grandparents, my mother, my wife all learned English--I 
certainly understand that.
    The President has also expressed support for a plan that 
includes bringing millions of undocumented people in the United 
States out of the shadows onto a path toward earned 
citizenship--not amnesty but earned citizenship. And I agree 
that we need a plan to realistically deal with this current 
situation.
    Is the administration committed today to a path to 
citizenship as part of an overall comprehensive immigration 
reform? Is that both the President's and the administration's 
position?
    Secretary Gutierrez. One of the principles that we have, 
Mr. Chairman, is to ensure that people who are working in the 
country today illegally come out and enable us to know who is 
here, because it is a national security concern. We do not know 
who is crossing. We do not know who is here. Once they have 
been identified, they would have to be given either legal 
status to work here or not.
    In terms of a path to citizenship, that is something that 
we need to discuss, we need to think through. There is a path 
today to citizenship, so it is not as though we need to create 
a new path to citizenship.
    Chairman Leahy. But if you want these people to come out of 
the shadows, aren't you going to have to have some kind of a 
path to citizenship available to them? Otherwise, what is the 
incentive to come out of the shadows?
    Secretary Gutierrez. That is a good question. I believe, 
Mr. Chairman--and it is hard to get a precise sense of this, 
but I believe that what people want first and foremost is to 
have legal status. And I am not sure that everyone wants to be 
a U.S. citizen. Many just want to be able to work, and if they 
can work legally, 1 day they would like to go back home. So, I 
do not think that citizenship is what will make them come out 
of the shadows. It is just the opportunity to have legal status 
so they do not have to be in the shadows.
    Chairman Leahy. Well, let's talk about this. Again, it is 
so easy to say amnesty, not amnesty. Will the administration 
and the President help us educate members of the public, 
actually educate Members of Congress that if you have 
comprehensive reform that consists of requirements to pay back 
taxes, fines, and makes it clear what your criminal history or 
lack of criminal history is, that that is not amnesty? Can we 
get some education from the administration to that effect? Or 
do you agree with that?
    Secretary Gutierrez. Well, as I think about amnesty, for me 
it is unconditional pardon, and if we start there, we have to 
move away from that and ensure that our principles and our 
conditions fit the fact that the law was broken.
    How we do that I think is a matter of debate, and I think 
we have to work that through, and that is part of the 
complexity.
    Chairman Leahy. But we are not going to really have a 
debate on it without the involvement of the administration. 
This cannot be done as a one-side or one-party piece of 
legislation.
    I assume, Secretary Chertoff, that you could not 
realistically find, apprehend, and deport the millions of 
people who are here today. Some you could, but you could not 
begin to get anywhere near the majority of them. Is that 
correct?
    Secretary Chertoff. I think it would be a gargantuan task 
to try to locate, detain, and deport 12 million people.
    Chairman Leahy. Then don't you have to have in a 
comprehensive immigration policy some way for most of them--if 
you are not going to get them out of here, to find some way of 
legal status? Now, as Secretary Gutierrez has just said, some 
do not want to be citizens. I mean, you have a lot of people 
who come here to work. They want to work here for a period of 
time, earn some money, and go back home. They do not want to 
have U.S. citizenship. Some are here as students and for other 
reasons. Some, however, their children are born here, they 
decide to go to school here, they are establishing roots here. 
They do want to become citizens.
    Either way, don't you have to have a comprehensive plan to 
make their status here legal?
    Secretary Chertoff. Well, I think what Secretary Gutierrez 
said is correct, that one needs to give people the inducement 
of getting legal status in the country if they are going to 
come out of the shadows. That has got to be an element of 
immigration reform because brute force alone will not deal with 
the challenge that we have with all the undocumented workers in 
the country.
    Chairman Leahy. Thank you.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    We have to move with dispatch on this very important 
matter. It is worth noting the prodigious efforts which were 
undertaken in the last Congress. We had six hearings at full 
Committee, six markups, with a total of 357 amendments being 
circulated and 60 votes taken at the Committee level. We were 
given a deadline by the Majority Leader, and we came back the 
day after a recess, convened early in the morning, worked about 
10 hours, reported a bill out. On the Senate floor, there were 
227 amendments filed, 37 roll call votes were held, 27 
amendments were adopted, and the bill was finally passed by a 
margin of 62-36. And then we could not come to agreement with 
the House of Representatives, which wanted an enforcement bill 
only.
    I review those prodigious efforts made last Congress to 
emphasize the kind of tough job we have ahead of us, and it is 
going to require cooperation by both the Congress and the 
administration to get there.
    The big obstacle we faced last year was the issue of 
amnesty, and if someone has a better idea on how to handle 
these 11 million undocumented immigrants, we are open to 
suggestions. But this is what last year's bill provided: a 
criminal background check, a meaningful penalty, back taxes, 
stand in line, learn English, and having a job.
    Secretary Gutierrez, is there anything more that can be 
done to impose sanctions and penalties than that to avoid the 
categorization of amnesty?
    Secretary Gutierrez. I think the other thing I would just 
add to that is to ensure that they do not have an advantage, 
that somehow they do not have an advantage because they 
happened to come to the country illegally, and that would add 
to your list.
    Senator Specter. Well, we have provided that by requiring 
they go to the end of the lines.
    Secretary Gutierrez. That is right.
    Senator Specter. If somebody can come up with a tougher 
line, we are open to suggestions. But it seems to me that that 
is not amnesty, and I think to be successful in getting this 
bill passed, we have to persuade first the House of 
Representatives--or perhaps first the American people and then 
the House of Representatives that it is not amnesty.
    You came to this country from foreign shores. You are 
Exhibit A. My parents are Exhibits B and C. We have lots of 
exhibits. But how do we persuade the American people that this 
is as much as can be done in dealing with the 11 million 
undocumented immigrants? We will deport those with criminal 
records where they are not qualified. That is manageable. But 
you cannot deport 11 million people.
    What more can be done, Secretary Chertoff, on that subject 
to deal with the critical issue of amnesty at the outset?
    Secretary Chertoff. Obviously, Senator, things like 
penalties, as Secretary Gutierrez said, making sure that there 
is no advantage to people who came here illegally, requirements 
like learning English, and things of that sort. Those are 
certainly measures which I think would demonstrate to a lot of 
people that the individuals are getting right with the law.
    Now, you are going to get differences of opinion about what 
kind of penalty is appropriate, as you do in almost every other 
area. But, it seems to me this is--
    Senator Specter. Mr. Secretary, I have to interrupt you. I 
want to ask one more question before my time expires, and I 
want to observe the time meticulously.
    I would appreciate it if both of you would think through 
this amnesty issue and find the best arguments we have or what 
else can be done to eliminate this argument, because it is an 
impediment in dealing with the 11 million undocumented 
immigrants.
    I think we need to focus on the advantages which we derive 
from having talented people come to this country. And other 
countries frequently complain about the brain drain which comes 
to this country. Bill Gates of Microsoft, an enormously 
successful entrepreneur, wrote just last Sunday in the 
Washington Post, on the need to expand the number of H-1B visas 
to improve the number of people who can come to this country, 
who want to come to this country to meet our changing 
scientific and technological industrial needs, with only 65,000 
temporary visas now.
    Secretary Chertoff, what do you think we ought to do on 
that issue?
    Secretary Chertoff. Well, I do know--and I know that 
Secretary Gutierrez can talk about this, too--this 
competitiveness issue is a big deal. Obviously, this is a 
little bit different than the issue of the illegal migrants who 
are coming to pick lettuce or work in hotels, because we are 
talking about knowledge-based workers. Nevertheless, obviously, 
Congress is going to want to probably look generally at how we 
deal with the visa issue, recognizing that first and foremost 
our immigration policy should be one that serves the United 
States. That is our No. 1 priority here.
    Senator Specter. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman. And thank you, 
Judge Chertoff, Mr. Gutierrez. Thank you very much for being 
here.
    I think we have just had a review about what the word 
``amnesty'' means and also what is in the legislation. In this 
legislation there is no special treatment. There is no free 
pass. There is no jumping of the line. There is no total 
forgiveness. There is no unconditional pardon.
    Senator Specter has pointed out the requirements that were 
in the legislation the last time. I imagine it will be included 
in this legislation.
    Let me mention just one of the requirements, and that is 
learning English. Secretary Gutierrez, at the present time we 
have 18,000 people in my city of Boston, Massachusetts, who are 
in line trying to learn English at the present time, and there 
is not adequate funding for that program. And I think we have 
to try, if we are going to make this a requirement--which I 
support--we have to be able to give the kind of opportunities 
for people to learn if they desire to do so. We can talk about 
that at another time, but I make the point now. If you want to 
make a brief comment, I really want to get on to other things.
    Secretary Gutierrez. I think it is a great point, and 
learning English is job No. 1, and it opens up vast 
opportunities.
    Senator Kennedy. Now, let me ask you, Mr. Chertoff, we 
understand that the President is going to be involved in a 
comprehensive legislative effort. Am I correct in that 
understanding?
    Secretary Chertoff. As the President said last year, he is 
interested in being very engaged with Congress in immigration 
reform across the board.
    Senator Kennedy. And he wants to work with us to get that 
passed.
    Secretary Chertoff. That is correct.
    Senator Kennedy. In the Senate. And he will also work with 
us to get it passed in the House of Representatives.
    Secretary Chertoff. That is correct.
    Senator Kennedy. He believes that this is in our national 
interest to get this job done.
    Let me ask you, from your own review, what it takes in 
terms of these elements to develop the--you have outlined in 
the legislation this very detailed program of what is necessary 
in terms of border security. What is your own best estimate of 
the time it is going to take to develop the tamper-proof card, 
both in terms of availability in country, and also in terms of 
enforcement here?
    Secretary Chertoff. Well, of course, as we currently stand 
right now, there is no legislative mandate or appropriation to 
have a tamper-proof card in this area. But, we do have other 
similar mandates in other areas.
    The technology exists. The business processes exist. We are 
in the process of using them now in a variety of different 
areas. Once Congress passes a measure that actually lays out 
the dimensions of the requirement, it is simply a question of 
scaling up the technology and funding the technology in order 
to make sure you can distribute the card. But, the technology 
exists. I think that Secretary Gutierrez has a display card. 
So, it is not a new technology.
    Senator Kennedy. Well, can you give us at least a ball park 
timeframe? The technology is out there. The resources have to 
be made available. But then we are talking about what period of 
time? Are we talking about 12 months? Are you talking about 18 
months? Are you talking 2 years? What is generally the estimate 
of the administration?
    Secretary Chertoff. Again, since we do not have an actual 
piece of legislation to work off of, it is hard to give an 
estimate. I can give you examples from other kinds of measures 
we have now. We have a Western Hemisphere Travel Initiative 
measure to get a secure card. We have a transportation workers 
measure. We have a REAL ID measure. These are looking to take 
anywhere between a year, maybe 18 months, and 2 years. Of 
course, that requires that everybody be aggressive and 
disciplined in moving forward with these efforts.
    Senator Kennedy. My time is moving along. I would be 
interested also in your estimates of what it will take in terms 
of the adjustment of status or the earned legalization, what 
your sense of timing would be on those.
    In this legislation, we crack down on passport fraud, visa 
fraud, document fraud, illegal entry, smuggling, gang 
activities, firearms offenses, drunk driving, money laundering, 
all of those activities.
    As a former judge, don't you agree that we must ensure that 
all the people in our system are going to have at least an 
opportunity to be heard before an impartial adjudicator or 
not--
    Secretary Chertoff. Well, I agree everybody--
    Senator Kennedy. I just want to mention that if you get a 
speeding ticket, you have that kind of opportunity. We are 
talking about more serious issues here. How are we going to 
make sure that we are not going to catch Americans, legitimate 
Americans, up in this whole process and that their rights are 
going to be preserved?
    Secretary Chertoff. I do agree we ought to preserve 
people's rights, but I do have to caution this: Right now, when 
people outside the United States apply for adjustment of 
status, if they are refused entry, with very rare exceptions, 
they do not get access to a lot of litigation. And, the one 
thing I will say to you is that you have to be very careful 
that creating a lot of process, a lot of judicial review, could 
break any system of immigration reform. I can tell you, having 
been a judge, frankly, and having sat on cases involving 
immigration review, they are time-consuming. If we wound up 
with millions of people challenging every determination in the 
Federal courts, I think the judges would be unhappy, and I 
think you would see a very, very serious practical problem.
    Senator Kennedy. My time is up, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kennedy.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman.
    I was interested in your comment, Secretary Gutierrez, that 
many of these folks, these approximately 12 million people, 
probably do not want to be citizens. They just want to support 
their families. They want to be able to work. And they may very 
well be willing to, if the approach is reasonable, become guest 
workers.
    Do you have any idea of approximately how many of them 
would not choose to be citizens if they had their--
    Secretary Gutierrez. I do not have a number, and I heard 
Secretary Chertoff use some statistics about a previous 
experience we have had.
    Senator Hatch. Well, maybe you want to give that. That is 
on the Simpson-Mazzoli bill, I guess.
    Secretary Gutierrez. Anecdotally, and just what I have 
read, it is that many people would like to go back home, after 
having worked in the U.S., and perhaps live the rest of their 
life there. But today we do not know that because they are not 
coming out because--
    Senator Hatch. Well, they are afraid to come out right now. 
I suspect that is true. When the Simpson-Mazzoli came up and 
was passed in 1986, I voted against it because I thought that 
it did give blanket amnesty. But do you have any statistics, 
Secretary Chertoff, on how many of them actually became 
citizens under the amnesty approach? They at least called it 
amnesty back then. We have not done it in the Senate bill. We 
have not called it ``amnesty.''
    Secretary Chertoff. The statistics that I have been given 
indicate about a little over a third applied to become 
citizens. So, the majority, a significant majority, did not 
choose to become citizens.
    Senator Hatch. That is interesting. On the biometric cards 
that you raised, if we are going to have some absolute way of 
identification so that our businesses are not called to the law 
enforcement aspects of this, but have a way of figuring out who 
is and who is not illegal, then biometric cards may be the way 
we are going to have to go. But we did pass REAL ID in the--I 
think it was the supplemental appropriations bill last year. Or 
was it in the 2005 appropriations bill? But, we are finding in 
Utah that they believe it is an unfunded mandate that puts a 
tremendous burden on the States. And it is estimated that it 
would cost about $11 billion overall to implement that program 
and then an ongoing set of costs thereafter.
    I do believe we have got to go to that, but we cannot just 
saddle the States with that type of billions of dollars. I 
think in Utah it would cost about $5 million right off the bat, 
and probably an equivalent amount of money to keep it going 
thereafter. What do you have to say about that?
    Secretary Chertoff. I am going to have more to say tomorrow 
because we are going to issue a proposed rulemaking, which I 
think will answer some of the questions and relieve some of the 
anxiety about this. But, I do need to make this point: Secured 
driver's licenses were maybe the top recommendation made by the 
9/11 Commission. It is not only critical for national security 
and homeland security, it also happens to be a very big step 
forward in protecting privacy.
    So, while we want to work with the States to have a 
disciplined but reasonable approach to implementation and we 
are going to see if there are some ways we can give some 
financial assistance, at the end of the day, this is a very, 
very important 9/11 Commission recommendation that we are 
committed to seeing put into effect.
    Senator Hatch. I like what I am hearing from both of you 
today in large measure because you are making it very clear 
that you do not want this to be an amnesty program. There are 
some tough cases, though: people who have been here decades, 
are good members of the community, religious people, hard 
workers, family oriented. We are going to have to resolve 
those, and how we can resolve them--I think the current system 
is in such a shambles that it is pathetic.
    So the more we can reform the current system, and back to 
H-1B, the Chinese are educating 300,000 engineers a year. We 
educate 60,000, and half of them are foreigners, and many of 
whom then go home to their countries and educate their people 
in competition with us, where they would love to stay here and 
work as maybe not citizens but at least as people who have the 
credentials to work. I think Bill Gates is absolutely right on 
that, and we need to up those figures. But every time we try to 
up the figures on the H-1B Ph.D. engineers and scientists and 
others that are going to be crucial to keep our country moving 
ahead, we then have the other side coming out and saying, well, 
you are being unfair because you are taking care of them but 
you are not taking care of the average person.
    How are we going to balance that? Because I personally 
believe we have got to expand the H-1B program, as Bill Gates 
and almost everybody in the high-tech world believes, and then, 
of course, at the same time do some reasonable things without 
granting amnesty and having people earn their right to 
citizenship the way you have been talking here today. I would 
be happy to hear your point of view. I would not mind having 
you talk about the basic pilot program, too, and what is 
working and what is not.
    Secretary Gutierrez. Senator, just on the issue of high-
skilled workers, what I hear very often from businesses in the 
high-tech field and other fields is they cannot fill their 
high-skilled engineering, science-based jobs as quickly or as 
readily as they would like. We have students come over from the 
world--India and China primarily. They get the best education 
money can buy, and then they have to go back home. They cannot 
stay here and apply their skills. We believe that we should be 
able to do better than that in order to serve our 
competitiveness needs as a Nation.
    Secretary Chertoff. With respect to Basic Pilot, Senator, 
let me just say that has been a successful program. It needs to 
scale up. What it enables employers to do is to check online to 
see if they are getting a bogus Social Security number or one 
that does not match the name.
    I do have to make it clear that it is not a total solution. 
When people have outright identity theft, where they steal a 
real name and a real number, it is not picked up by Basic 
Pilot. For that reason, I believe there is legislation pending 
now in the Senate to lift the current restriction that prevents 
the Social Security Administration from advising us when they 
detect cases where identity theft appears to be going on 
because the same number and name are appearing in multiple 
locations.
    Senator Hatch. Well, thank you both. I appreciate you being 
here.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Hatch.
    It is interesting when you talk about the unfunded mandate 
on the States for driver's licenses. It is a problem with mine. 
Would the administration, if they are going to push for this 
driver's license, would they agree to propose in the 
President's budget to fund it?
    Secretary Chertoff. I think, Mr. Chairman, you have the 
President's budget. It has been submitted, and I think there is 
some funding. But, certainly I do not think the budget proposes 
to pick up the entirety of the cost.
    I will say that I have spoken to a number of Governors and 
States that actually are in the middle of doing an overhaul of 
their license process, and they welcome moving forward with 
this. What they are looking for are uniform standards, and we 
expect to provide those in the next couple of days.
    Chairman Leahy. OK. The Republican Governor of Vermont 
disagrees with that.
    We will set the clock back. Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Thank you both very much for being here today. I come from 
the State, as you know, which has the largest number of people, 
newcomers coming into the State and generally staying in the 
State. I am now of the opinion that we may have reached too far 
in the comprehensive bill and that we ought to take a look at 
doing this in tranches. We have passed the first tranche, which 
was the border security. The second tranche, it seems to me, 
are two things:
    The ag jobs bill, because it is a system for legalization 
that is not an amnesty in an industry that depends on the 
undocumented worker. And it would essentially provide a path to 
legalization for 5 million people who are willing to work in 
agriculture for up to 3 years. It has also passed out of this 
Committee.
    The second act would be the Dream Act, which has also 
passed out of this Committee.
    My own view of the last bill now was that the visa 
expansion was too wide, too deep, and that the tranche Hagel-
Martinez compromise subjects itself to fraud and was 
problematic, and that the guest worker program was too big. It 
is my view that if we are able to find a path to legalization 
for the 11 million people that are here, the guest worker 
program as such, outside of H-2A and ag jobs, is not really 
mandatory or necessary.
    The question I wanted to ask you both, in looking at how 
the 11 million people could be handled to avoid the amnesty 
claim and to create a structure, the thought occurs as to 
whether we could use a point system. In other words, an 
individual would be accorded points--points for length of time 
in the country, for education, for language, for children who 
might be legal, for community service, for the absence of a 
felony record--so that those with the most points would come 
first. As you know, Canada uses a point system with respect to 
legal entries.
    My question would be: Have you looked at this as a possible 
methodology for a structure to be able to handle the 11 
million?
    Secretary Chertoff. We are aware that people have suggested 
something of that sort, and we know that other countries have 
that. You know, one question is: Are you talking about a point 
system for those who are admitted into the program in the first 
instance for temporary work or for those who would at some 
point be eligible for citizenship?
    Senator Feinstein. For those who are already here in 
undocumented status, the 11 million, Secretary Chertoff, that 
you responded to, large in number, difficult to handle.
    Secretary Chertoff. I think I would say that what needs to 
be considered in addressing that approach--which certainly, you 
know, in principle there are some interesting elements and some 
attractive elements--is first of all, whether you are going to 
create an incentive, at least in the first instance, to bring 
those 11 million into a regulated system, because that is 
ultimately at the end of the day what we have to do to manage 
that problem.
    Senator Feinstein. The answer would be yes.
    Secretary Chertoff. And second, is whatever system is put 
in place cannot have so many different variables that it 
becomes difficult to adjudicate. It is one thing to say, for 
example, that lack of criminal record has to be adjudicated. We 
all agree on that. When you talk about length of time in the 
U.S., what kind of documents and proof will establish length of 
time? Is it going to be a complicated process? Will we accept 
testimony? Will we accept affidavits? And then, whatever the 
answers to those are, you have to multiply it by 11 million.
    So, without suggesting that it is an absolutely great idea 
or an absolutely difficult idea, it is certainly something 
worth exploring as long as we keep workability and practicality 
very much in the forefront of how we look at.
    Senator Feinstein. Thank you.
    Secretary Gutierrez?
    Secretary Gutierrez. Yes, I agree with Secretary Chertoff. 
There are some interesting aspects to it. It really comes down 
to can we execute it, can we implement it, because simplicity I 
think is going to be our best friend here. And as we add 
variables, it is going to make it more complex and more 
difficult to execute. So for me it would be an issue of 
workability.
    Senator Feinstein. I would like to work with you to try to 
see if we cannot come up with something that would be 
acceptable. The task is so daunting because what you are saying 
is if it is complicated, we cannot handle it because there are 
so many people. Well, if there isn't a structure to it, if 
there are not requirements, it becomes in the lexicon of some 
an amnesty. And that is really not what we are talking about. 
We are talking about people who have been here, who have 
worked, who have families here, who are not going to go home. 
And it seems to me that there should be a methodology that we 
can work out to avoid the amnesty, to do it with some order, 
and to have some understanding of what it is that we are doing.
    Secretary Chertoff. I think we agree with that, and I think 
that, again, the devil is always in the details, as they say, 
on the practical side.
    Senator Feinstein. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator.
    Senator Grassley?
    Senator Grassley. Thank you, Mr. Chairman. I am going to 
ask my questions of Secretary Chertoff.
    I monitor fairly regularly the actions of the U.S. Citizen 
and Immigration Service. The Director is committed to 
preventing fraud. We have seen some improvement. There are 
still some major problems with the processing of immigration 
benefits. This agency cannot handle amnesty for 12 to 30 
million people when it cannot even handle its current caseload. 
The agency is 99 percent funded by fees. But how does the 
agency plan to use fees to implement an amnesty program, one? 
Two, given the President's request of $30 million for fiscal 
year 2008 which would go toward an employment verification 
system, do you really think it is feasible to implement a 
temporary worker program this year? And three, and last, what 
are you doing to prepare for the inevitable mess that an 
amnesty program would create?
    Secretary Chertoff. Well, first of all, I am going to 
differ by saying I think the President has been crystal clear 
that he does not want to have an amnesty program. So--
    Senator Grassley. But my answer to that is if it walks like 
a duck and quacks like a duck, it is a duck. But go ahead and I 
will accept your--
    Secretary Chertoff. Well, I am going to respectfully 
disagree with this being applied to what the President has been 
talking about.
    Senator Grassley. OK. Go ahead.
    Secretary Chertoff. In terms of the issue of our ability to 
manage the caseload, I would note, for example, that we have 
essentially eliminated the backlog over the last few years, 
which is what the President promised when he came into office. 
There is no doubt that if we were going to need to assimilate 
and get secure identification for the people who are in this 
country illegally and also any temporary workers, there would 
need to be at least a significant initial investment in money 
and time to design and fund the system. The hope is the money 
would be recouped through fees, so I think net we would not be 
out of pocket, but I think we have to be completely candid that 
there would need to be some significant resources applied to 
this over the period of time it takes to implement it.
    Senator Grassley. OK. The next point is in regard to 
getting a briefing. My staff has asked for a briefing on Robert 
Schofield, an immigration official who accepted bribes in 
return for approving citizenship for aliens who were not 
qualified. Since Mr. Schofield pled guilty months ago and his 
case is no longer pending, I would like some answers. Would you 
commit to helping my staff get a briefing from your Department?
    Secretary Chertoff. Yes.
    Senator Grassley. OK. Thank you.
    The next one is--I would like to have an answer in writing, 
but would you listen, please, and not answer now, because I 
have got some other questions. We met over a month ago--you 
were kind enough to do that--to discuss the worksite 
enforcement against Swift, including the need to improve the 
Basic Pilot Program. One of my concerns has been the hiring of 
illegal aliens in critical infrastructure sites. Every other 
weeks it seems we are hearing about illegal aliens working on 
military bases. A response to my question that day, the day we 
previously met, is that the Department of Defense is not even 
using the Basic Program.
    A few weeks ago, the Senate unanimously passed a measure to 
prohibit the companies from Government contracts if they are 
found to hire illegals. It would encourage companies to use the 
Basic Pilot Program then. But we would not need this measure if 
the Federal Government was requiring contractors to use the 
Basic Program. In other words, we do not need to pass a law.
    It cannot be done today. The Department of Defense, for 
example--or, in other words, it can be done today. We do not 
even have to pass a law to do it. The Department of Defense, 
for example, should have a policy in place that requires 
contractors to use this program, airports and power plants as 
well. I want to know if it is going to be done and to what 
extent.
    Then a question on employer verifications, and I would like 
a very short answer on this. It is likely that Congress will 
mandate the use of an electronic employment verification system 
for all businesses in the United States. Can you confirm for us 
today that your Department is ready and willing to implement a 
mandatory system for all employers?
    Secretary Chertoff. We have doubled our capacity, and I 
think, although we will need some lead time, we will be in a 
position in the near future to be able to offer that.
    Senator Grassley. Your Department has been working to 
implement the national standards for driver's licenses mandated 
under the REAL ID Act. I am told that about seven States are 
close to complying. One of those States is my State of Iowa. 
What would a delay in the REAL ID Act mean for the States that 
are ready to go? And what incentive would other States have to 
be compliant?
    Secretary Chertoff. I think a delay for States ready to go 
would actually create more uncertainty and difficulty for them. 
That is why what we are going to propose to do is to, under the 
law, provide extensions for States that need them but continue 
to move forward for the States that are poised and ready to 
implement the law.
    Senator Grassley. Mr. Chairman, I see three lights on, so 
how much time do I have left?
    Chairman Leahy. Well, you are 38 seconds over your time. Do 
you have another question you wanted to ask? I will certainly--
    Senator Grassley. It would be one on visa revocation. Could 
I go ahead?
    Chairman Leahy. Go ahead, and we will give an equal amount 
of time to Senator Feingold.
    Senator Grassley. OK. I have been pushing to change the law 
when it comes to revoking visas of people in our country that 
have suspected terrorism or criminal conduct. Normally, a 
consular officer has the full authority to deny a visa on such 
grounds. However, if a visa was revoked today for someone on 
U.S. soil, the decision could be taken to court.
    Can you tell us why the Department wants to change to a law 
that would prohibit the judicial review of revoked visas?
    Secretary Chertoff. I think for precisely the reason that 
you just indicated, the fact that we can prevent someone who is 
coming in as a guest. Basically, we can say you cannot come in 
from overseas, but once they come in, if they abuse the terms 
and conditions of their coming in, we have to go through a 
cumbersome process. That strikes me as not particularly 
sensible.
    People who are admitted as guests, like guests in my house, 
if the guest misbehaves, I just tell them to leave. They do not 
get to go to court over it.
    Senator Grassley. Thank you very much.
    Chairman Leahy. Thank you very much.
    Senator Feingold?
    Senator Feingold. Thanks very much, Mr. Chairman. I am 
pleased that the Committee is once again taking up the critical 
issue of comprehensive immigration reform. This issue is too 
significant to put off, too important to our national security, 
to our economy, and, most importantly, to the millions of 
people whose lives will be affected. We need to secure our 
borders, we need to fix our broken immigration laws, and we 
need to deal with the fact that there are millions of 
undocumented individuals in this country, and we need to do it 
now.
    We also need tough enforcement mechanisms, but we can be 
strict while still providing individuals with the type of basic 
due process and judicial review that is consistent with the 
rule of law and our constitutional system of Government. I do 
sincerely look forward to working with the Committee to report 
to the Senate floor a bill that takes a pragmatic and realistic 
approach to immigration reform, and I appreciate the support of 
Secretary Chertoff and Secretary Gutierrez for comprehensive 
immigration reform.
    Secretary Chertoff, good to see you again. I want to raise 
the issue of the material support bar in the immigration law 
and, in particular, how it relates to the Hmong population. As 
you are well aware, many of the Hmong who fought with or 
supported the United States in the Vietnam War will potentially 
face denials or lengthy delays of their applications to become 
refugees or to adjust their immigration status here in the 
U.S., and the reason for this is the very same reason they are 
eligible to be resettled into the United States, that they 
fought with or supported the United States in the Vietnam War. 
Their applications are put in jeopardy because of changes made 
to immigration laws by the passage of the REAL ID Act, which 
defined the term ``terrorist activity'' so broadly that it 
basically covers anyone who has ever used a firearm.
    Are you planning to apply a waiver to the Hmong population, 
either to those in the United States who are found ineligible 
for adjustment of status because of the material support bar 
provisions or to those outside of the United States who are 
filing for refugee status?
    Secretary Chertoff. I believe I signed a number of waivers 
in the last few weeks. I have to confess I do not particularly 
remember whether the Hmong were included, but I can get you the 
answer to that.
    Senator Feingold. Thank you. Please do, because this is a 
problem that has been around for several years, and I am 
concerned that the Department thus far has applied a very 
limited number of waivers to the material support bar. Can you 
give me a sense of what your timeframe would be for determining 
waiver eligibility for the Hmong?
    Secretary Chertoff. I think I may have done it. The reason 
I am hesitant is I think may have done it already, but I cannot 
specifically recall. So if it is done, it is done.
    Senator Feingold. My understanding from my staff is it does 
not include the Hmong at this point.
    Secretary Chertoff. All right. I will have to look and find 
out. It needs to be analyzed. It should not take a very long 
time.
    Senator Feingold. Well, I was all over my State last week, 
and this came up a great deal. It is a matter of great concern. 
And let me just say also, to the degree this problem is 
statutory, if it is, then--
    Secretary Chertoff. No, I think we can deal with this. I 
think the statute gives us the flexibility, and as I say, I 
have signed a number of waivers recently, and I think we can 
deal with this under the existing law.
    Senator Feingold. Well, I am pleased to hear that. If that 
is true, that is great. If there is some statutory problem, 
please let me know immediately. But I appreciate your 
commitment to work on this matter.
    Mr. Secretary, the last time you were before the Committee 
discussing immigration reform, we talked about the fact that 
opening more channels for workers to legally enter this country 
would allow us to focus our enforcement efforts on those 
persons who actually pose the greatest threat to our National 
security. You said then, ``I believe the effectiveness of our 
border security and enforcement initiatives is tied to creating 
legal channels for workers our economy needs to continue 
growing.'' And a 2005 Cato Institute study supports your 
statements.
    The study found that the probability of stopping an 
undocumented immigrant has fallen over the past two decades 
from 33 percent to 5 percent, despite the fact that we have 
tripled the number of border agents and increased the 
enforcement budget tenfold.
    Do you continue to believe, as I do, that effective border 
security is dependent on creating more channels for legal 
immigration?
    Secretary Chertoff. I do agree with the sentiment I 
expressed last year. I do not want to agree with the Cato 
study, which I am not in a position to associate myself with 
and, I have to say, I think a 5-percent capture rate sounds 
like it is a really incorrect estimate. But, the general 
principle I agree with.
    Senator Feingold. Let me just reinforce that by pointing 
out that President Bush in his State of the Union last month 
said that providing realistic legal immigration channels would 
mean that immigrants looking for jobs ``won't have to try to 
sneak in, and that will leave border agents free to chase down 
drug smugglers and criminals and terrorists.''
    I agree with the President on this. This is one reason why 
immigration reform is really so important.
    Secretary Chertoff, I would like to talk just a bit about 
border enforcement. We are in agreement that border security is 
an absolutely critical part of immigration reform. I think we 
also agree that the methods we employ should be as effective 
and as cost efficient as possible. I understand the Department 
is implementing some promising new technologies to help secure 
the border.
    I would like to have you tell us a little bit about the 
high-tech components of the Department's SBInet program.
    Secretary Chertoff. We are currently in the process of 
rolling out the first 28-mile stretch of SBInet, and in the 
area of high technology, I was at the border a week ago and saw 
ground-based radar that we have currently deployed in Arizona 
that allows us to actually scan 20 kilometers from a single 
fixed point and immediately hone in with a camera on illegal 
migrants so that we can intercept them.
    In fact, if I am not mistaken, I have a recollection that 
in the last few weeks we have actually apprehended a murderer 
coming across the border using this kind of technology.
    There is no question that in many parts of the border the 
most cost-effective and most efficient way to detect and 
intercept illegal migrants is high-tech things like radar.
    Senator Feingold. I am encouraged to hear that. Would you 
specifically say that in many border areas those types of 
technologies will be both more effective and less expensive 
than building hundreds of miles of fencing, which has an 
estimated cost of $3 million to $4 million per mile?
    Secretary Chertoff. I would agree with that. Fencing does 
have its place, however, in some areas. And, in some areas the 
high-tech is more effective.
    Senator Feingold. Thank you, Mr. Secretary.
    Thanks very much, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman.
    First of all, to Secretary Chertoff, I am just reading some 
clips from the Arizona newspapers of this morning. Arizona 
Republic headline: ``Another chief of police slain along the 
border.'' This is in the Sonoran town of Agua Prieta, which is 
right across the border from Douglas, one of the chief areas of 
smuggling. Police Chief Ramon Tacho Verdugo, 40 bullets hit him 
in an ambush, which officials say is almost certainly involved 
in control of the smuggling routes into Arizona. Rival 
organizations are vying for control of these lucrative 
corridors. His death followed a number of related killings in 
the area. In fact, at least 12 lawmen have died in the past 
year, including the chiefs in Tijuana and Nuevo Laredo.
    The newspaper goes on to say, ``The killings have many 
police thinking twice about taking the top post. The Sonoran 
town of Naco, for example, has had 12 police chiefs in the past 
3 years. The last one to resign was Tacho's brother,'' the 
fellow that was just killed.
    There are reasons to secure our border other than simply to 
stop illegal immigration. Is that not true? And, in fact, could 
you tell us what percentage of people apprehended coming across 
the border last year actually were criminals or people wanted 
or who had criminal records?
    Secretary Chertoff. I vigorously agree. In fact, the 
principal reason to secure the border is to keep drug dealers 
and criminals and dangerous people out of the country. One of 
the reasons we have talked about a legal channel for migration 
is so that we are not hunting down the housekeepers and the 
construction workers and we are focused on the drug dealers.
    I do not recall exactly what the figure is, but I think it 
is a significant percentage, around 20 percent or so.
    Senator Kyl. Yes, it was somewhere between 10 and 15 
percent on average. In some areas it was greater than that.
    Secretary Chertoff. Yes, that are criminals.
    Senator Kyl. One of the things that you said in your 
testimony--well, before I ask you that, you talked about the 
ending of catch and release. There is still some unfinished 
business with respect to catch and release, however, with 
regard to people who are here illegally and we are having 
difficulty returning to their home. You talked about this in 
your written testimony. Could you expand on that orally just a 
little bit?
    Secretary Chertoff. Yes. The key to all of our deportation, 
whether it is people we catch at the border and detain or 
people in the interior, is once they are removable, the home 
country has to take them back. We have worked with many of our 
allies in actually having a very efficient system. I can tell 
you, however, for example, the Chinese are still very slow to 
take their removable migrants back. As a consequence, if you 
look at the whole country, including the interior, we have got, 
I think, over 40,000 Chinese who have been declared removable. 
They are done with their court process, but we have difficulty 
getting the Chinese to take them back, and we are going to have 
to push on that.
    Senator Kyl. And those people are not all in detention. In 
fact, probably the majority of them are not. Isn't that 
correct?
    Secretary Chertoff. Correct. Because they are in the 
interior, the vast majority are bailed out, or by law we have 
to release them after a certain period of time.
    Senator Kyl. And it is not even certain that we could find 
them all if we wanted to.
    Secretary Chertoff. Well, obviously once they are released, 
there is a risk of flight.
    Senator Kyl. Right. Now, you also talked about the need for 
greater sharing of information. This is reminiscent of a post-
9/11 discussion of our intelligence and law enforcement. But to 
get a handle on who is here and entitled to be legally employed 
and whether or not someone might be seeking employment 
fraudulently, you have a variety of recommendations for 
statutory change, one of which had to do with sharing of data, 
having the Social Security Administration share data with DHS.
    What specifically would you like to see shared? What would 
be necessary for us to do in order to provide that authority?
    Secretary Chertoff. Right now, the law prohibits 
information which can be described as taxpayer information, 
like your Social Security data, to be shared except through a 
very cumbersome process. If Michael Chertoff with my number 
appears to be filing in six different places across the 
country, I mean, there might be a reasonable explanation, but 
likely not.
    If we could have Social Security identify that and let us 
have that, that would give us an opportunity to be able to look 
to see whether we have got an identity theft problem. And, by 
the way, it would also help the innocent victim, the real 
Michael Chertoff, get help.
    So, this is a tool which I think there is legislation that 
is now seeking to address it.
    Senator Kyl. And this would not involve a violation of 
people's privacy. In fact, to the contrary, it would actually 
assist people in protecting their privacy.
    Secretary Chertoff. Absolutely. This protects their 
privacy.
    Senator Kyl. Wouldn't the same thing apply for sharing of 
information, for example, from IRS with respect to the death of 
a person so that his Social Security number would not continue 
to be used?
    Secretary Chertoff. Correct. These would be actually 
privacy protective.
    Senator Kyl. And is there any problem in--I mean, isn't it 
true that we already have algorithms and so on that can run 
those programs against the data base so that it should not be 
difficult to do this, it is simply a matter of authorizing it?
    Secretary Chertoff. Yes, I mean, I am sure there will be 
some adjustments to the IT system, but all you are doing is 
comparing to see if in the same time period the same name and 
number have been filed in different places. It is a legal 
obstacle to sharing with us that I think is the real problem.
    Senator Kyl. And, finally, isn't it important that the 
Social Security data base be cleaned up and operated in an 
accurate fashion from now on if, A, we are going to have a 
valid Social Security system, B, we are going to eliminate 
document fraud and identity theft, and, C, if we are going to 
be able to have an employer-employee verification system under 
immigration reform?
    Secretary Chertoff. Yes.
    Senator Kyl. Thank you.
    Mr. Chairman, that red light means I am out of time?
    Chairman Leahy. It does.
    Senator Kyl. Thank you, Mr. Chairman.
    Chairman Leahy. Did you want to ask another question?
    Senator Kyl. No, sir.
    Chairman Leahy. OK.
    Senator Cardin?
    Senator Cardin. Thank you very much, Mr. Chairman, and
    I thank you for holding these hearings on immigration 
reform.
    It seems to me that we need to evaluate any proposal based 
upon several factors, the most important, of course, being the 
security issues. And we have had discussions here about the 
security issues, but we also need to know the economic impact 
on our country. We need to be concerned about the humanitarian 
aspects and just basic fairness. And when you look at basic 
fairness, I think the point that Senator Feinstein raised about 
amnesty is one that we have to be cautious about. People have 
waited in line to become citizens of America, and we need to 
make sure that that is respected.
    On the humanitarian front, it is very important to me to 
give people the protection of law, so I think it is important 
that we have some way that we can identify the people that are 
in this country. On the economic front, I can tell you that the 
guest worker program is critical to the seafood industry in 
Maryland, so there are economic issues here that are important 
to our country. But let me, if I might, concentrate on the 
security issue because I think that is the issue that is 
perhaps the most perplexing and the one that is the most 
critically important.
    Last year, the Senate passed a comprehensive immigration 
reform bill. The House passed a bill that criminalized the 
activities of those who are undocumented in the United States 
and those who help people who are not properly documented. So 
if you look at it from a security point of view, based upon the 
current circumstances, the current law, versus the approach 
taken by the Senate last year, versus the approach taken by the 
House, I would welcome your thoughts that for the security of 
this country, what is the best approach to take? Because no 
action is action. If we do not do anything, we have the current 
law. So is the current law safer for America than the bill that 
passed the Senate from your perspective or the bill that passed 
the House of Representatives last year? I welcome your 
thoughts.
    Secretary Chertoff. I think the current situation is not a 
particularly good situation. I think what we need to do is to 
come up with an approach that addresses all elements of the 
problem, that does so in a way that adds additional teeth to 
the enforcement side, that is simple and workable, and that is 
something that can be done in real time.
    Senator Cardin. Now, the House took a rather limited 
approach. They did deal with a security wall, but they also 
dealt with criminalization, making it a felony conviction for 
those who cooperate or help or counsel, in addition to the 
people who are undocumented. Would you comment on that 
approach?
    Secretary Chertoff. I do not think I am in a position to go 
back and revive my memory about the individual pluses and 
minuses of each of the bills. I think we're starting with a 
clean slate here, I think the principles which the President 
outlined last year are pretty straightforward--you know, tough 
enforcement and a workable temporary worker program, including 
one that addresses and brings into a regulated system the 
undocumented workers who are here already.
    Senator Cardin. Well, do you need additional tools in order 
to enforce our laws?
    Secretary Chertoff. Sure. Some of the things we have talked 
about are, for example, sanctions for those who run checkpoints 
or disobey DHS officers, tougher sanctions for employers, 
administrative sanctions so that the systematic violation of 
the law does not become a cost of doing business, and also, 
equally importantly, if not more importantly, not weighing down 
the process with a lot of different complicated adjudications 
and determinations that in real life would sabotage the 
program.
    Senator Cardin. I think that is a fair analysis so that you 
are being targeted in what you need; whereas, the approach 
taken by the House last year would have made another maybe 10, 
12, 14, 15, 16 million targets, potential targets of criminal 
investigations. Certainly it seems to me to weigh down the 
ability to really go after the people that are the ones that we 
need to in order to make sure we have an enforceable system.
    Secretary Chertoff. Well, I do not know that I want to 
characterize any of the legislation that was there last year. I 
am looking forward. I do not see much profit in looking 
backward. And, looking forward, I think we have outlined what 
it is that we need.
    Senator Cardin. I thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Sessions? At least that was my understanding was 
Senator Cornyn here first?
    Senator Sessions. I believe he was.
    Chairman Leahy. If that is correct, then I--
    Senator Sessions. I believe maybe Senator Coburn was ahead 
of me.
    Chairman Leahy. I am sorry. I was going by--well, which 
order, gentlemen? You were all here before the witnesses 
started their testimony. So if you want to yield to Senator 
Cornyn to go first, that is fine.
    Senator Cornyn. You go first.
    Chairman Leahy. I am going to be here for the whole 
hearing.
    Senator Sessions. Well, I will just take my time, and we 
have probably wasted time already.
    Chairman Leahy. OK.
    Senator Sessions. Thank you. I do not know exactly how you 
calculate your rule there, but I know it is objective and fair.
    Secretary Gutierrez, it is great to have you with us, and 
congratulations on helping us with our revenue deficit. The 
economy has grown. We had revenues up 15 percent in 2005, 12 
percent in 2006, and I hear you are hoping to have a 10-percent 
increase in revenues to the U.S. Treasury without increasing 
taxes, and that is good news. Thank you for that.
    And, Secretary Chertoff, I admire you and your leadership. 
You have got a very, very difficult job. I think I told you 
when you took it, I am not sure anybody could succeed in it, 
but you are doing about as well as could be expected under the 
circumstances.
    I would just say with regard to my chairman's comments 
about the border barriers, that bill passed, one vote 83-16 and 
I think the other vote was about 94-3 to do that. And it 
complied with your request to build barriers in a way that 
would be helpful, as they have proven to be helpful in San 
Diego. And, frankly, without some barriers, I do not think we 
are serious about what we mean to do here.
    I share Senator Specter's concerns about work going on 
behind closed doors. Last year, we had this matter basically 
sprung on us. They tired to pass it without any amendments. 
Senator Frist pulled the bill down, and we eventually did have 
amendments and a discussion. But it would be better if we had a 
much more open process.
    Let me raise some fundamental questions. This is what I 
think is concerning the American people. If there are two 
applicants who want to emigrate to the United States and both 
are from Guatemala, one is the valedictorian of his or her high 
school class, speaks fluent English, and has had a year or two 
of college or technical training, but no relatives in the 
United States, another did not finish high school, does not 
speak English, has had no additional training or skills, and 
they apply to come to this country, who has the clear 
advantage, Secretary Chertoff, under the current law?
    Secretary Chertoff. Right now, the advantage goes to the 
person with the rather distant family relationship. Under the 
current visa allocation, I think, last year approximately 
120,000 family members got green cards. I do not mean spouses 
or minor children. I mean married siblings coming in, and that 
is apparently a legacy of a fairly longstanding system.
    Senator Sessions. In fact, the way our system works, 58 
percent of the people we admit come in based on a family 
connection; whereas, Canada in its system that Senator 
Feinstein referred to, which allocates points based on skills 
that they bring, 60 percent come in on merit, or at least based 
on the skills that Canada felt are necessary.
    Secretary Gutierrez, couldn't we do a better job of 
recognizing everybody cannot come to the country, and having a 
skill set factor here that would be more beneficial to our 
economy?
    Secretary Gutierrez. Especially for the high-skilled 
portion of this, skills is what makes the difference. And we 
have traditionally sourced a lot of our scientists from 
overseas, and I believe we need to do that in the future.
    In terms of low-skilled, it really comes down to the job 
and what is needed for that specific job, and if it is an 
agricultural job, obviously the person with the skills would be 
overqualified, and they probably would not be interested in 
that.
    So part of this is being able to get the skills we need on 
the high end and then also being able to fill the jobs that we 
need to fill on the low end.
    Senator Sessions. With regard to that, I think there should 
be a distinction between those who want to work here in a low-
skilled capacity who may not want to be citizens and those who 
actually apply to be full legal permanent residents or 
citizens, and I think that is what we need to be discussing. 
One of my fundamental criticisms of the bill we passed last 
year, there was no discussion of this in any serious way.
    Professor George Borjas, a professor of economics and 
social policy at the Kennedy School of Government at Harvard, 
recommends that we as policymakers answer this question before 
writing any laws: ``What policy goals does the U.S. want to 
advance through its immigration rules?'' Fair enough. You nod. 
I guess you would agree with that.
    The question is: What interests should be served, the 
interests of poor people or those around the world who-- maybe 
billions would benefit from living here if they could come. Or 
shouldn't it be the interests of the United States, the long-
term, legitimate, just interests of our country?
    Professor Borjas testified before the HELP Committee last 
year, the Labor Committee; he explained that the economic 
interests of the United States are not being best served by 
current laws. And, of course, Secretary Gutierrez, he also came 
from Cuba as a young man, so he is an immigrant himself. He 
said this: ``Many more people want to come to the United States 
than the country is willing to admit. So because of this the 
immigration policy needs to specify a set of rules to pick and 
choose from the many, many applicants. Those rules could stress 
family ties, as is done now. It could stress national origin, 
the way it used to do. Or it could stress economic values, the 
way Canada does. Or it could even be completely random, the way 
the lottery system does for 50,000 visas. The crucial question 
that is really at the core of the immigration debate is: Which 
set of rules should the United States have if it wants to 
improve its economic well-being of its population?''
    Do you think that is a fair analysis of some of the 
thoughts we should give to this matter?
    Secretary Gutierrez. Sure. In fact, Senator, I would say 
that the three goals that we are using to set our comprehensive 
plan is, one, national security; two is economic growth; and 
three is national unity, improving national unity and making a 
contribution to society. And those three goals should be met.
    Senator Sessions. My time is up. Thank you.
    Chairman Leahy. Senator Graham?
    Senator Graham. Thank you, Mr. Chairman. I want to 
compliment you, too, for having this hearing. I think this is 
something we actually could accomplish as a Congress with the 
administration if we had the will to do it. So that is good 
news for the American people.
    The goal is to be safe and free, and I do not think you can 
be safe and free without being responsible. So we have a 
problem on our hands, gentlemen, of 11-plus million people who 
have come here illegally, what to do, how to do it, what value 
system we should embrace. I think we should embrace our self-
interest, and we should embrace American values. And what are 
American values? Hard work, obeying the law, getting right with 
the law when you are out of touch with the law, and making sure 
at the end of the day you have justice.
    The rule of law, if it means anything, brings about a just 
result. So we are going to have some hard decisions to make 
because there are some families here that have been here 
decades that have done nothing but work hard. And I hope we can 
find a just result living within the rule of law, but if it is 
not justice, it does not push any value.
    What is the biggest mistake we made in 1986 in our last 
attempt to solve this problem, Secretary Chertoff?
    Secretary Chertoff. I think the biggest mistake was we were 
not tough about the enforcement side of the law. Additionally I 
think that not only did it fail to meet the expectations of 
Congress, but I think it created a real sense of skepticism, if 
not cynicism, among the American people.
    Senator Graham. Do you agree with that, Secretary 
Gutierrez?
    Secretary Gutierrez. Yes. I would just add the concept of 
workability and ability to execute whatever we passed in 1986.
    Senator Graham. What percentage of the illegal immigrant 
population did not come across the border?
    Secretary Gutierrez. My understanding today is that 
approximately 40 percent--and these are approximate numbers- -
are visa overstays.
    Senator Graham. That never came across the border?
    Secretary Gutierrez. So they would come in through other 
means, perhaps an airport or--
    Senator Graham. So we have got to build a fence, I 
understand that, and we have got to have a virtual fence and 
secure the border, and that makes perfect sense to me. That is 
why I voted for it. But if we did that and we said job done, 
mission complete, we would be wrong. Is that true?
    Secretary Chertoff. That is correct. We need to address all 
the elements of the problem.
    Senator Graham. As a matter of fact, if you do not get to 
the root cause of--what is the root cause of illegal 
immigration, Secretary Gutierrez?
    Secretary Gutierrez. I would say, Senator, it is that our 
economy is growing. We need labor to keep it growing, and that 
demand needs to be supplied.
    Senator Graham. Being a proud Republican, 4.6 percent 
unemployment is historically low. Is that correct?
    Secretary Gutierrez. That is correct.
    Senator Graham. So to make the argument that illegal 
immigration is costing American jobs just does not quite make 
sense, does it?
    Secretary Gutierrez. Unemployment is below the average of 
the past four decades.
    Senator Graham. As a matter of fact, there are so many 
segments of our economy starving for labor, if we do not deal 
with that, our economy is going to go backward, not forward. Is 
that true?
    Secretary Gutierrez. That is correct.
    Senator Graham. When it comes to the security side, 
Secretary Chertoff, at the end of the day, if we cannot 
identify this work force, this illegal immigrant population, we 
will never be safe. Is that correct?
    Secretary Chertoff. Correct.
    Senator Graham. And the only way we are ever going to deal 
with this problem is to control employment. People come to get 
jobs. You can make more in 1 day here than you can maybe in a 
whole week or month other places. We need workers. They need a 
job--on our terms, not theirs. So when it comes to the future 
flow, temporary worker program, isn't part of the solution that 
you have to advertise, before you can hire an immigrant that no 
native American, native-born American will take the job? Is 
that part of the solution?
    Secretary Chertoff. I think that has been the past 
practice, and I think in the discussions in the past, all the 
proposals had some similar requirement.
    Senator Graham. OK. Do you recommend that we have that in 
this package?
    Secretary Chertoff. I think you need to have some assurance 
to the public--I do not want to commit to a specific approach 
about advertising--that assures people that you are not taking 
a job from a willing American worker.
    Senator Graham. Do you believe it is possible in the next 
couple of years, if Congress gave you the right tools, the 
right amount of money, the right authorization, to create a 
system so every employer in America would have a chance to 
regularize their work force?
    Secretary Chertoff. Yes.
    Senator Graham. And do you believe it would be fair to give 
them that chance because the current state of law is almost 
impossible to comply with?
    Secretary Chertoff. I would not agree that the current 
state of law is impossible to comply with. I would say it is 
difficult. It is more difficult than it needs to be to comply 
with.
    Senator Graham. Could I get a Social Security card 
illegally by midnight tonight?
    Secretary Chertoff. I do not know if you could, but I think 
probably--
    [Laughter.]
    Secretary Chertoff. I think probably an illegal immigrant 
can.
    Senator Graham. Don't sell me short. Could you?
    Secretary Chertoff. I do not think I could either, 
probably. Not with my Secret Service detail.
    Senator Graham. Do you know anybody that could?
    Secretary Chertoff. I think if your point is that it is 
easy to get false identification, the answer to that is yes, 
and that is a security vulnerability as well as an immigration 
vulnerability.
    Senator Graham. It is not easy. It is ridiculously easy. 
Now, what America needs to come to grips with is that we do not 
really have any way to track who is here and why, and we need 
workers. And we are not going to put 11 million people in jail, 
nor should we. We can make people right with the law without 
destroying families, which we should. And we can have a work 
force that brings out the best in this country.
    You know, I want to make sure Bill Gates' needs are met, 
but the most impressive person I have ever met in my life never 
went to college, worked hard all their life, and that was my 
father. So I do not put value on people by the title they have, 
but what is in their heart. And there are millions of people 
here who could make great Americans if they got right with the 
law. So let's get this right and get it behind us.
    Thank you for coming.
    Chairman Leahy. Thank you. I guarantee you if I did not 
worry about the legality of it, I could find your Social 
Security, find mine, and numerous others, and probably get-- I 
might not be able to do it by midnight, but certainly by the 
end of the week get a fake Social Security number. I am not 
suggesting people do, but I have watched how it is done, as I 
am sure you have, and it is pretty scary.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman.
    I do not know, Mr. Secretary, whether you saw this morning 
on the front page of the New York Times, ``Low pay and broken 
promises greet guest workers in the United States.'' It is a 
rather extensive story, and in the story, with which I think 
all of us are very familiar, it points out, I would say, a 
substantial majority of U.S. guest workers experience abuses 
with their paycheck, and it goes through the examples.
    We have provisions, or at least we had the last time in the 
comprehensive program, protections for monitoring these kinds 
of labor recruiters so that this kind of abuse we would be able 
to address. But in the existing law, we know that in H-1B, the 
highly skilled, they can be petitioned for and they can become 
citizens.
    We are going to be, if we get this legislation, in a 
temporary program, have temporary workers in here. Why 
shouldn't it be possible for employers to have the same kind of 
provisions so that those individuals that come in here 
following a procedure which we outlined, will they also be able 
to be petitioned for so that they can get on the road to 
citizenship as well?
    Secretary Chertoff. I assume you are talking about 
unskilled workers as opposed to--
    Senator Kennedy. Yes.
    Secretary Chertoff. Well, I think, you know, inevitably, as 
Congress considers this issue and considers what the end game, 
so to speak, is with respect to temporary workers, some of the 
sentiment I have heard here today suggests looking at the 
current categories and asking whether those categories ought to 
be reconfigured. You could certainly consider whether you want 
to create a category for unskilled workers where you have an 
employer who has a case to be made that that person ought to 
come in.
    Senator Kennedy. Well, we are talking about the temporary 
worker program. That was in the legislation last year where 
they could be petitioned for, and they could get on the pathway 
for citizenship as well. And just to get the administration's 
position on that, if you want to get it to us--
    Secretary Chertoff. Again, I am reluctant to take positions 
on past pieces of legislation. I think that as we work with 
Congress--
    Senator Kennedy. Well, what is your position now with 
regard to the temporary worker?
    Secretary Chertoff. I think we need to have a temporary 
worker program that addresses labor needs, that addresses the 
fact that we have 11 to 12 million undocumented workers and we 
have to bring them into a regulated system that is fair but 
that does not advantage those workers over those who have 
followed the law. Those seem to me to be basic principles the 
President has outlined.
    Senator Kennedy. Thank you.
    Chairman Leahy. Thank you.
    Senator Cornyn? We have had some concern on the early bird 
rule, which I do want to follow here. Senator Specter is going 
to take on the chore of keeping track of his side, and I will 
rely on his count of who gets here first, and I will keep track 
on this side, and we will try to alternate sides. I apologize 
for the confusion to both Senator Cornyn and Senator Coburn 
earlier.
    Senator Specter. Well, thank you, Mr. Chairman. We will 
keep track on this side, and we do want to observe the early 
bird rule because that is the motivation for people to come 
early. And I think we agree that everybody is entitled to a 
first round before anybody gets a second round.
    Chairman Leahy. Yes, I made a mistake on that. I apologize. 
So people understand, we will follow the early bird rule. We 
will alternate sides until everybody has had their first round, 
and I will leave it to the Republicans-- basically what we did 
when you were Chairman. I kept track of the Democratic side, 
and I will expect you to keep track of the Republican side.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Secretary Gutierrez and Secretary Chertoff, let me express 
my gratitude for the hard work that both of you have put into 
this issue. I have been working on this issue since I came to 
the Senate in 2002, and, frankly, I think we have gone through 
some tough times, but we are getting to a good place. And I 
think a lot of the thought that has gone into coming up with a 
workable bill has been very constructive. And I think if we are 
successful, then that hard work will have been rewarded. And 
you both are entitled to a lot of credit.
    Secretary Chertoff, when someone asked you earlier about 
the reason the 1986 amnesty was a failure, I agree with your 
assessment that there was no real commitment to enforcement of 
the law. And so, what the American people saw was an amnesty 
with the tradeoff being worksite sanctions against employers 
who cheat and enforcement, and they felt like they had been 
scammed. And I think a lot of this profound skepticism that I 
hear from my constituents, and I think that we hear across 
America, has to do with the loss of trust that the Federal 
Government has sustained because the American people remember 
what happened in 1986.
    So I think a lot of what we are doing here is trying to 
regain credibility. I think that is an important function and I 
want to congratulate both of you for such an emphasis on 
workability. If we do not come up with something that will 
work, then I think we will find ourselves in the embarrassing 
position that our predecessors did in 1986 of scamming the 
American people. And we should not do that, and I know you do 
not want to do that either. So thank you for that emphasis on 
workability.
    In that connection, we talked a little bit about the Basic 
Pilot Program. As you know, there has been a lot of concern 
surrounding this program and we have had this conversation 
about the Swift meatpacking plant raids by ICE. Now, I 
congratulate you and your office, Secretary Chertoff, for your 
attempts to vigorously enforce the law. But my concern really 
has to do with the Federal Government's failure to provide good 
corporate citizens the means to determine whether, in fact, 
people can legally work on their premises. And as you know, 
Swift complied with the Basic Pilot Program, a voluntary 
program, but it could not tell--and you alluded to this 
earlier--whether or not the worker actually had been guilty of 
identity theft by claiming to be somebody else and had a Social 
Security number that was not theirs.
    As a result, this company has sustained, it estimates, 
about $30 million of business disruption, even though they are 
protected by virtue of their use of Basic Pilot from further 
sanctions.
    But is it your testimony, Secretary Chertoff, that if we 
were able to implement an effective system of worksite 
verification, the kind of biometric tamper-proof identification 
card that Secretary Gutierrez was displaying earlier, that such 
measures would be a good solution to that problem?
    Secretary Chertoff. It would be a very good solution.
    Senator Cornyn. We also know--and you have alluded to this 
as well--that since 9/11 we have learned that one of the ways 
that we have made America safer is to remove the stovepipes 
that have prevented information sharing between law enforcement 
and the intelligence community. But as you suggest in your 
testimony, there are numerous stovepipes in place, legal 
barriers passed by Congress and signed into law, that prevent 
you from getting information that would be useful for you to 
enforce our immigration laws.
    I believe Senator Allard has an amendment pending on the 9/
11 bill that we are taking up this week that would eliminate 
those barriers and provide you the kind of information 
necessary to enforce our immigration laws.
    Do you support such measures?
    Secretary Chertoff. We do support removing stovepipes and, 
in particular, if it is what I am thinking you are referring 
to, which is on the Social Security issue, I think we even 
asked last year to have help to remove that bar, which means we 
would finally be able to get a heads up if there is identity 
theft going on.
    Senator Cornyn. And, finally, let me just express my 
gratitude to you again for your willingness to meet with Texas 
border mayors and business leaders, both here in Washington and 
in Laredo just last week. I felt like those discussions were 
very productive. It certainly, I think, gave my constituents 
the sense that the Federal Government and particularly people 
in the President's Cabinet care a lot about their situation 
there on the ground. I also think the meeting provided useful 
information to you and others at the Department of Homeland 
Security about how best to accomplish our goals. Perhaps not 
with a one-size-fits-all mentality that Congress and Washington 
sometimes have a tendency to dictate, but with an approach that 
is responsive to their needs and best designed to achieve 
results.
    So thank you for that.
    Secretary Chertoff. Thanks to you and Senator Hutchison for 
arranging those meetings.
    Senator Cornyn. Thank you, Mr. Chairman.
    Chairman Leahy. Are you going to invite me down for some of 
those, John?
    Senator Cornyn. I beg your pardon, Mr. Chairman?
    Chairman Leahy. Are you going to invite me down to visit 
some of the--
    Senator Cornyn. We would love to have you in Laredo, Texas, 
anytime you want to come. They have great food.
    Chairman Leahy. I used to go to one Texas city fairly often 
when my youngest son and his wife were living there, but they 
are back in Vermont.
    Senator Cornyn. In El Paso, yes.
    Chairman Leahy. You have a good memory. They are back in 
Vermont now. It is easier to visit.
    Senator Coburn? And then it will be Senator Whitehouse and 
then Senator Durbin.
    Senator Coburn. Thank you, Mr. Chairman.
    First of all, my thanks to both of you for your service to 
our country. Tough times that we face and tough issues in front 
of you.
    Secretary Chertoff, you talked about increased internal 
enforcement, increased border security over the last 9 months, 
decreased number of people, decreased percentage of non-
Mexicans. What have you seen in terms of increased egress out 
of the country?
    Secretary Chertoff. You know, we are not in a position to 
monitor egress through the land border and certainly not if 
people return between the borders. So, I cannot at this point 
tell you that there are a large number of people who are 
leaving as a consequence of interior enforcement.
    There was some anecdotal stuff in the paper suggesting that 
there were people who were now beginning to leave because they 
were getting worried about these enforcement rates.
    Senator Coburn. I noticed, Secretary Gutierrez, that we are 
very proud of the unemployment rate, and that is great, but 
that is a measure of the people that are seeking jobs. There 
are still people unemployed out there who are not seeking, so 
it is a measure of those actively seeking jobs, not those that 
are not seeking. And I note that if you--you talked about 4.4 
million jobs that are out there and available right now, and we 
have got 9 or 10 million people that are looking for a job. 
That is about a 2\1/2\:1 ratio of people who do not have a job 
to jobs that are available. And other than the geographical 
disbursements or the ag differential in terms of 
regionalization, why do we need to have a large number of a 
worker program when we have 2\1/2\ times as many people 
unemployed in this country as we have jobs? Why do we need to 
suppress that?
    And then the followup portion to that question is: If that 
is really the case and what we have seen is the big problem in 
this last recovery, economic recovery, is that the low- and 
lower-middle-income salaries have not risen, and one of the 
reasons that they--what are the reasons why they have not risen 
in terms of real wages? Part of it health care, I understand 
that, but compared to other times. And why does it make sense 
to have an influx of an additional work force when we have 10 
million Americans that are not employed today and real wages 
for those people at those entry level jobs are not rising?
    Secretary Gutierrez. I think there are three questions 
there, Senator. The labor rate participation, the percent of 
the population that is in the labor market, has remained pretty 
stable. On wages, this last year we saw actually a real 
increase of about 2.1 percent in real wages. The broadest 
measure of compensation that we have is disposable income, 
average disposable income, which would take into account wages, 
benefits, take-home pay, reduction in taxes. That number is up 
about 9.5 percent in real terms since the President took 
office.
    The other thing I would say about the labor and the 
unemployment is that the type of jobs that we are talking about 
here, I believe that in general terms a lot of our population 
has moved on. A lot of our young students, a lot of our 
children are not necessarily looking to fill jobs that perhaps 
they would have filled 30 or 40 years ago. And I think that 
suggests that as a population, as a society, we are moving 
forward. People's expectations of a job, their skill levels, 
are a lot higher than they were before. And many of the jobs 
today that do not require skills are not the types of jobs that 
our people are looking for. And that is why we have these 
vacancies in the lower-skill levels.
    Senator Coburn. Just to clarify that, 9.5 percent, 7.2 
percent of that is health care costs. So it is really 2.3 
percent in terms of real wages or disposable income. And if you 
fractionize that out to the lower-middle income or to the low 
income, it is not even that great.
    Again, I question the wisdom. If we really believe in 
markets, why would we undermine the market forces that would 
raise the wages of the lowest income earners in this country by 
diluting the work force with people coming in under a jobs 
program? I do not understand that. Why would we not want to 
make it more competitive and let markets raise the cost? I 
actually believe we need to have more legal immigration because 
I think that diversity is one of the great strengths of our 
country. I am not against it. But I do not understand the 
policy of why we would not want the market forces to actually 
raise the wage rates of the lowest dollar employed people in 
this country.
    Secretary Gutierrez. The point you are making that I think 
is a good one is how much and what is the level of immigration 
that we need, and to your point, we believe that the market 
should determine that.
    The great thing about comprehensive reform is that it will 
regulate the supply. Today the supply is whatever can get in. 
If we determine what supply we want, who gets a card, who gets 
a temporary worker's permit, how many people are in the 
country, that will force us to limit the number of immigrants 
who come in. And then over time we can let the market decide 
whether that is too little or too much.
    Senator Coburn. All right. Thank you. I am out of time. I 
will wait for the second round.
    Chairman Leahy. Thank you.
    Senator Whitehouse?
    Senator Whitehouse. Thank you, Chairman. Gentlemen, 
welcome. I appreciate your service.
    First a political question, and then an enforcement 
question. Looking back at the last session, we saw two things. 
We saw an extreme divergence of views among the President and 
his party in Congress. And we also saw immigration reform 
founder here at a time when Congress was controlled by the 
President's party. And in light of those facts, as we go 
forward to try to put together immigration reform in this 
Congress, I am interested to hear what sort of signals you all 
are hearing about the extent to which this administration is 
willing to do the political legwork of herding the cats, if you 
will, on its side of the aisle so that there can, in fact, be a 
proposal that people agree on.
    I think the divergence of views among the Democrats is 
relatively narrow and consistent with the way people tend to 
ordinarily disagree with each other on major pieces of 
legislation around here. It seems to me that within the 
President's party, the divergence of views is so extreme that 
it is going to really take a considerable effort to get 
anything that is acceptable. And if there is not a really 
serious and sincere effort to get there, then this is all a lot 
of talk.
    Secretary Gutierrez. Senator, I know that the President has 
been committed to this from his first day in office, and it 
goes back to when he was Governor of Texas. So the one constant 
here is the commitment from the President to get something 
done.
    I think what we learned last year is that this is such a 
complicated issue, it is so complex that it is going to require 
compromise on all sides of the aisle to get a good, solid bill. 
And I think we are going to see that, that it is not just one 
side of the aisle that needs to compromise. I think we all need 
to compromise in order to get a bill that serves our National 
interest. And that is what we are here for, and we are 
committed to doing that.
    Secretary Chertoff. I would add one thing. I think it was 
important over the last year to put a lot of effort and 
resources into tough enforcement. Frankly, there was a lot of 
public skepticism built up over 20 or 30 years of what many 
people in the public view as lip service. And, I think we're 
changing the momentum--and, again, I want to emphasize we are 
not done--we are moving in the right direction. I think it is 
beginning to earn some credibility with the public, and keeping 
that up is going to be an important element of being 
successful.
    Senator Whitehouse. Well, that is a perfect segue to my 
second question, which had to do with enforcement actions 
against corporate violators. I do not have the numbers in front 
of me, but I seem to recall last year the statistics were that 
it went from an average of about 400 successful actions a year 
down to about 4. I think it was a 99-percent reduction.
    Secretary Chertoff. That is actually the exact opposite. It 
went up to 716 criminal cases. The prior year I think it had 
been like 120 or 130. And, if you go back to 2002, it was one-
seventh.
    What did happen is we moved from slap-on-the-wrist actions, 
where you pay a fine that is a cost of doing business, to 
criminal actions, which resulted in things like the guilty 
pleas we got yesterday, which have real teeth. And, we are 
going to continue to do that, as we demonstrated last year.
    Senator Whitehouse. Well, I am pretty confident with my 
figures, and I will double-check to specify exactly what the 
area of enforcement was. It was against corporations. I am not 
sure if it was fines or convictions. But there was a documented 
99-percent reduction from about 400 per year to about 4, if I 
remember correctly--
    Secretary Chertoff. I think what you--
    Senator Whitehouse.--between administrations, and I would 
like to see that turned back around.
    Secretary Chertoff. I think what you are seeing is we moved 
away from civil administrative slap-on-the-wrist parking 
tickets to criminal felonies. You are right, we are not going 
to waste time doing a big investigation to fine a company $250. 
It is a waste of time and effort on the part of the agents. 
Just like when I was a prosecutor, we do not do little penny-
ante offenses. We go after big violators. When we get them, we 
have real teeth. And, I think that if you look at the reaction 
you have seen in the press as well as what I have heard 
privately, the grumbling, frankly, from the corporate 
community, I think that is a pretty good metric of the fact 
that we are rougher and tougher than anybody has ever been.
    Senator Whitehouse. Mr. Chairman, I would followup on that 
in writing, and I look forward to that opportunity, Secretary 
Chertoff. Thank you.
    Chairman Leahy. Thank you very much, Senator Whitehouse.
    Senator Specter?
    Senator Specter. Well, thank you very much, Mr. Chairman, 
and thank you, Secretary Gutierrez and Secretary Chertoff. Your 
testimony is very helpful.
    We will push ahead in the Committee to produce a bill as 
promptly as we can. I believe the Committee will be committed 
to a comprehensive bill. We need to articulate the strong case 
we have that it is not amnesty. We need to tell the American 
people that the protection of the borders is serious and that 
employer verification will be done and that the Government will 
provide the technical assistance so that employers can know who 
is legal and who is not so that they can be held accountable 
with tough employer sanctions and that we will look for a guest 
worker program which will be responsive to the needs of 
specific industries. If there are American workers available, 
we will not bring guest workers in. We will have guest workers 
only where American workers are not available to do the job. 
And with respect to the 11 million undocumented aliens, we will 
structure a bill which will seek to identify those who have 
criminal records and do not deserve to stay here from those who 
do have roots and who are making a contribution.
    But I am convinced that we can maintain the rule of law, 
protect our borders, at the same time accommodate in a guest 
worker program the needs of American industry and have a 
realistic program to put on a citizenship track those who 
deserve it at the end of the line. But, again, I say if anybody 
has a better idea, we are ready to listen.
    But we do appreciate the outstanding work you both have 
done, and we will work with you and we will work with the House 
to try to structure a bill which will come out of conference.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Graham, did you have anything further?
    Senator Graham. Just very briefly, if I may.
    Chairman Leahy. Certainly.
    Senator Graham. It is important to start with a clean sheet 
of paper, but I think the point we are trying to make is that 
we need to understand our past work product and how close to 
the sweet spot we are.
    Would either one of you consider last year's provisions or 
the bill that passed the Senate, the provisions regarding 
punishment to be amnesty--the fines, learn English, go through 
a criminal background check? What the Senate did last year, 
would you consider that to be a grant of amnesty?
    Secretary Gutierrez. I do not have the specific provisions 
in my mind, but if it is a punishment, then I do not think it 
can be amnesty. So, you know--
    Senator Graham. Well, with all due respect, I am not asking 
for recall, but there was a lot of attention paid to this, and 
I would think both of you during last year's debate would have 
come to the conclusion as individuals whether or not the Senate 
is repeating the mistakes of 1986.
    Secretary Chertoff, did you think we were doing that?
    Secretary Chertoff. You know, I agree with Secretary 
Gutierrez that when there are penalties, if the penalties are 
enforced, it is not an amnesty. But, I also have to say it is 
not just a question of convincing us. It is a question of what 
do the American people think, and I think that what has to--
    Senator Graham. Well, the American people need to hear from 
their leaders, and the American people are dying to be led in a 
lot of areas, and the American people are very open-minded to 
solutions. Two out of three are open-minded to assimilating 
people without throwing over the rule of law.
    What is the violation for illegal border crossing? Is it a 
felony or misdemeanor under our current law?
    Secretary Chertoff. I think it is currently a misdemeanor. 
Although, I think if you have been--I am subject to being 
corrected, I am working from memory--removed and then you come 
back again, I think it can be done as a felony.
    Senator Graham. But the initial violation is a misdemeanor.
    Secretary Chertoff. I believe, if that, yes.
    Senator Graham. As a judge, do you believe in 
proportionality of punishment--
    Secretary Chertoff. Sure.
    Senator Graham.--that the sentence needs to fit the crime?
    Secretary Chertoff. Sure.
    Senator Graham. OK. Well, anyway, at the end of the day, 
this amnesty question, as Senator Specter and Chairman Leahy 
have indicated, will dominate this debate, and we need to come 
to grips with what the term ``amnesty'' means in terms of the 
law. And you have been a judge, and I have looked at the 
punishments available under the law for someone who is caught 
crossing the border illegally. I think they are more severe 
than if you were caught doing drugs the first time in terms of 
paying fines and having to wait 11 years before you could ever 
get back into the back of the line.
    I would encourage both of you that when we come up with 
whatever comprehensive view of the problem that we agree upon, 
that you stress to the American people you are not getting away 
with this. You can only stay on our terms. And if you committed 
a violation of the law, you are not even eligible to be 
considered. And you have to make yourself right with the law.
    And the last comment would be that we have got to convince 
the American people that until you know who is here and why, we 
will fail again. And the ID card controlling employment is to 
me the wall that works. And please stress as we go forward the 
importance to the American people that we give employers notice 
of what they should do and we hold them accountable when they 
fail, and this ID card is the key to solving this problem.
    I look forward to working with you. We can do this.
    Chairman Leahy. Senator Sessions, do you have another 
question?
    Senator Sessions. I will be brief, Mr. Chairman.
    Chairman Leahy. I would certainly appreciate that.
    Senator Sessions. You know, our hearts go out to the whole 
world. Professor Borjas pointed out that with regard to the 
50,000 lottery slots that we have in this country where you 
submit your name and your name is drawn, that of that 50,000, 5 
million applied. You know, nine-tenths of the world 
economically would benefit if they came to the United States. 
We have to know that, and we have to ask ourselves if everybody 
cannot come, are we going to think like Canada or other 
European countries that are revising their laws and choose 
people, allow those to become on a path to citizenship that are 
most likely to be successful here and also benefit the United 
States.
    I would ask either one of you if you know these statistics. 
In 1997, the National Academy of Sciences told us in their 
study, ``The New Americans,'' that the key to success in the 
United States and the ability to contribute to the United 
States is an education level. And this is the National Academy 
of Sciences, not something I came up with. Those who did not 
have a high school diploma would cost the Treasury of the 
United States $89,000. In other words, they would draw out more 
in welfare and benefits than they would pay in over their 
lifetime. Those with high school diplomas would draw out 
$31,000. But those with any college, just some advanced 
education, would pay $105,000 more in a lifetime in taxes than 
they are going to take out.
    Now, is this something that--is this an immoral thing for 
us to think about? Let's just put it that way. Is that immoral 
for the United States to think like Canada and Australia and 
other nations are, that they need to think about how this 
person is likely to fare in the country and focus more on the 
skills and educational levels that they bring?
    Secretary Chertoff. Well, I think, you know, this is a 
complicated issue, but I think one principle is very clear. 
Whatever we do should be that which benefits the United States. 
That is what we are here to do, to benefit the United States 
first. And while we might debate about what the best way to 
maximize that benefit is, I do not think there is anything 
immoral--I think, in fact, we have an obligation to put 
American interests at the top of the list by a country mile.
    Secretary Gutierrez. This has to be the national interest, 
first and foremost. The one issue that we have to wrestle with 
is the fact that the jobs that are available happen to be low-
skilled jobs because American citizens are improving their 
education, and they are not filling those jobs, and we do not 
want those jobs to go overseas. And that becomes the reality 
that we have to confront.
    Senator Sessions. Well, I would just suggest again-- and I 
think we could maybe reach some bipartisan ground on this. If 
we have a real temporary worker program for people more focused 
on low-skilled workers or seasonal workers and things of that 
kind--and those people could also apply in another track for 
citizenship based on a competitive--maybe they learn English 
while they are in the United States, maybe they would take 
college courses at night, and they become very competitive in 
the application process, and then have an application process 
for citizenship based on a more meritorious basis than we have 
today. Is that something that is conceivable in your mind, 
Secretary Gutierrez?
    Secretary Gutierrez. Well, I think the important thing is 
when we have a temporary workers program that we be able to 
explain to you why we call it ``temporary.'' And it is always 
in the country's interest to have anyone who is working here 
improve their skills and grow and contribute to society. So, 
yes, we want everyone to grow and to improve their skills.
    Senator Sessions. Secretary Chertoff?
    Secretary Chertoff. I agree. I think that we ought to look 
at ways to maximize the benefit to the country in terms of how 
we ultimately admit people to permanent status.
    Senator Sessions. Well, Robert Rector of the Heritage 
Foundation said it is a myth that if by legalizing the 11 
million people here now about 50 percent do not have a high 
school diploma, that it is going to help our Medicare, our 
Social Security, our long-term financial threats that are out 
there; in fact, it is going to exacerbate them. And he is 
absolutely firm in that view, and he has studied it quite in 
depth.
    So I think we do have a right to ask what is in our 
national interest, and as we go forward, I hope that some of 
those of us who have not been involved in this process of 
writing a bill that will soon be foisted upon us will at least 
have an opportunity to read it and to maybe make some 
amendments.
    Chairman Leahy. Thank you.
    A high school diploma should not be the only criteria. I am 
sure you are not suggesting that. My father was one of the 
leading business people in Montpelier, employed a lot of people 
in a printing business that is still there bearing our name. He 
never had a high school diploma, nor did my Italian grandfather 
who also employed an awful lot of people in his stone shed.
    Senator Coburn?
    Senator Coburn. Mr. Chairman, unanimous consent to submit 
additional questions for the record.
    Chairman Leahy. Of course. And we will keep the record 
open.
    Senator Coburn. If you all would respond to those.
    Chairman Leahy. We will keep the record open for all 
members for that.
    Senator Coburn. I wanted to make a comment about what 
Secretary Chertoff has said, and I think it is dead accurate. 
The American people do not trust this Government on 
immigration. They do not trust the Republicans or the Democrats 
because we have not earned their trust on this issue. And I 
think it is very important that the process of now starting to 
secure our borders becomes more visible to the American public, 
starting to enhance internal enforcement becomes--and I also 
will tell the Chairman that I think any bill that goes through 
the Senate that doesn't have the Isakson amendment in it is 
doomed for failure. It is doomed for rejection by the American 
people, and it will not work.
    We have to re-establish confidence before we address the 
issue of the 11 million people that are here, and I would hope 
that the administration would take that position. Since they 
are going to be the one negotiating with the majority, it is 
obvious that the Republicans are not. That Isakson amendment 
that says that we will start addressing these other issues in a 
humanitarian way is once we have certified that we have a 
secure border, and not until then. And that is what the 
American people expect, and that is what they deserve.
    A couple other questions, and you do not have to answer 
them other than short, and I will make them in long--I would 
love to know about the exit portion of the US-VISIT program, 
because I know we are not functioning at a level there. We 
cannot--from both homeland security where you have testified 
and here, Secretary Chertoff, that is a gaping hole for us 
right now. We know who comes in. We have no idea who leaves, 
which means we do not know whether people are actually 
violating their visas or not.
    Secretary Chertoff. We are on track to doing an air and sea 
port exit system. The land port is complicated, and this is 
going to be near and dear to the Chairman's heart because--
    Chairman Leahy. We have had some long discussions about 
this, Senator.
    Secretary Chertoff. We have never built infrastructure 
monitoring people who leave the country. Now, one solution 
might be to work with the Canadians and the Mexicans and get 
their information about who enters, which would, of course, 
achieve the same thing. And, we are talking to them about the 
possibility of pursuing that.
    Senator Coburn. All right. The other thing--and I will 
submit this--just in terms of ICE agents and administrative 
apprehensions and the number of ICE agents and the ratio of 
that and whether or not we will be efficient with that, I would 
appreciate you answering that by letter.
    Then I have one final question. It strikes me, as I go 
around the country, that when--and, Secretary Gutierrez, I 
certainly do not mean to embarrass you with this question, or 
Secretary Chertoff. When you were asked by the Chairman about 
English as an official language of this country, and we do not 
embrace that. And, you know, I find it rather ironic. I can be 
on call at my hospital and deliver an Hispanic woman who cannot 
speak English, but her medical record is all in English. The 
official record of our being there, the business record is in 
English. It is not in Spanish. And my poor Spanish is enough to 
coach me through delivering her baby. But why would we not 
embrace that, whether we have to help people come to the level 
of English education or English as a second language, but why 
wouldn't we embrace that the official language of this country 
is English? It is what we operate our law under. It is what we 
operate--why do we not embrace that? Why does the 
administration not embrace that? Why does my colleague from 
Vermont not embrace that, when, in fact, the commonality of our 
English is the thing that keeps us together and united as a 
country?
    Secretary Gutierrez. Well, I will say two things. I think 
you are asking a legal question, but I will give you my two 
points of view.
    One is we have to do everything we possibly can to send the 
message out that everyone needs to learn English, and we do a 
great disservice to immigrants if we insinuate that it is not 
that necessary. That is the first thing I will say.
    Once we have all learned English, I think we all owe it to 
our country to learn a second language.
    Senator Coburn. I agree with you.
    Secretary Gutierrez. And I would hate to give anyone the 
impression that we think a second language is a bad thing. The 
first thing is English first, English plus, which I believe is 
a term that other people have used. I think we can embrace 
those two, and I do not think there is any confusion regarding 
those two. I think there is a great deal of clarity.
    Secretary Chertoff. I agree, and I think the President has 
made it clear that ultimately, as we deal with this issue of 
immigration, assimilation, being part of the culture of the 
United States, becomes a critical element of the policy. I 
think people look with alarm at what is going on in other parts 
of the world where there are large groups of immigrants who 
never actually become part of the fabric of society. And, we 
are now seeing some of the unfortunate harvest of that.
    The really good news in this country is we have, 
traditionally, without necessarily being legally coercive, 
built a system that encourages people to assimilate. We need to 
make sure whatever we do, we continue to push this issue of 
becoming part of the fabric of America as a critical 
cornerstone of our policy.
    Senator Coburn. Do you see some danger with having a guest 
worker program that we would have a persistent underclass, 
underpaid worker class, who does not assimilate, and because we 
have a guest worker program, rather than welcoming them as 
Americans, helping them get a greater education, have them 
climb the ladder, rather than create a guest worker program 
that says you are in a slot that you are not going to become an 
American, we are just going to use you as an underclass to 
supplement what we do not want to do?
    Secretary Chertoff. I think what we have now is an 
underclass--
    Senator Coburn. I do, too.
    Secretary Chertoff.--because I think when you have an 
invisible, fearful group of people who are, nevertheless, here, 
that is the most likely to produce an underclass. I think when 
you give them legal status and, therefore, they get certain 
basic legal protections, I think that actually decreases the 
element of an underclass.
    And then as somebody said earlier, to the extent that 
people when they are here legally get educations and move to 
better themselves, you know, there may be opportunities for 
them under existing programs. But, I think this is an area 
where--as the Secretary said starting out--there is far greater 
agreement, I actually believe, on where we need to get. The 
disagreement tends to be on what the best way is to get there. 
And, I think that gives me hope that we can actually solve this 
problem.
    I know if we do not do it now, we are leaving the American 
people in a very difficult situation.
    Senator Coburn. All right. Thank you very much.
    Thank you for your indulgence, Mr. Chairman.
    Chairman Leahy. Of course. You have asked important 
questions, and I appreciate it.
    I did see a certain smile on Secretary Chertoff's face when 
you talked about going either way across our borders. We had 
had a discussion of what happens if this WHTI is implemented 
fully, and Americans leave, for example, going into Canada, 
Canada says fine, come on through, and then an American citizen 
is denied entry to their own country because they do not have a 
passport or whatever kind of thing we do.
    I think that that is more than just an exercise in 
thinking. I think it is a reality, and I think it is one thing 
we have to really look at because you could actually have 
this--it would become a cause celebre in this country. 
Americans go across the border to Canada or Mexico, an American 
citizen, born and raised here, no question of citizenship. And 
then the do not have the proper papers and are not allowed back 
into the United States. Get a few thousand of those, I can 
almost write the headlines. But we have discussed that, and we 
will discuss it further.
    Do either of you believe that Americans are being denied 
jobs because of foreign workers?
    Secretary Gutierrez. No. In general terms, no. No.
    Chairman Leahy. And, Secretary Chertoff?
    Secretary Chertoff. I agree with Secretary Gutierrez.
    Chairman Leahy. And if our immigration system is reformed 
to accommodate the needs of agriculture and other industries, 
can we do this and make sure that Americans are accommodated 
there?
    Secretary Gutierrez. Yes, Mr. Chairman. I believe we can.
    Chairman Leahy. Thank you.
    Well, I appreciate you both being here. We have been longer 
than I think we probably told you we would be, but I wanted to 
make sure everybody had a chance to ask questions.
    This is going to be a long process. It is not going to be 
an easy process. I am committed to getting a comprehensive bill 
through. I believe everybody will say they would be committed 
to getting a comprehensive bill through. The question is we 
have different definitions perhaps of what is comprehensive. 
But I think that the most important point in this whole thing 
is where the President is going to be and where he is going to 
be publicly on this.
    In the last meeting I had with him last year on this 
subject, I was extremely impressed with his commitment to it, 
with all the other things on his plate, his knowledge of the 
proposals being made, his reference to his own experience in 
Texas. But we are going to need that publicly, and we are going 
to need very public support of leaders of both the Republican 
and Democratic parties in both bodies.
    I believe it can be done. I believe if it is not done, we 
have a problem in this country that will actually hurt us. It 
will hurt us in being the kind of great country we are, and we 
will lose the chance to have the kind of diversity we need in 
America, which has made us strong throughout the years.
    So I thank you both very much for being here.
    [Whereupon, at 12:31 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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