[Senate Hearing 112-914]
[From the U.S. Government Publishing Office]
S. Hrg. 112-914
EXAMINING THE CONSTITUTIONALITY AND PRU-
DENCE OF STATE AND LOCAL GOVERNMENTS
ENFORCING IMMIGRATION LAW
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
REFUGEES AND BORDER SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
APRIL 24, 2012
__________
Serial No. J-112-72
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
Subcommittee on Immigration, Refugees and Border Security
CHUCK SCHUMER, New York, Chairman
PATRICK J. LEAHY, Vermont JOHN CORNYN, Texas
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa
DICK DURBIN, Illinois ORRIN HATCH, Utah
AL FRANKEN, Minnesota JON KYL, Arizona
RICHARD BLUMENTHAL, Connecticut JEFF SESSIONS, Alabama
Stephanie Martz, Democratic Chief Counsel
Matt Johnson, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Schumer, Hon. Chuck, a U.S. Senator from the State of New York... 1
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 4
prepared statement........................................... 36
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 38
WITNESSES
Witness List..................................................... 35
Pearce, Russell, President, BanAmnestyNow.com, Mesa, Arizona..... 7
prepared statement........................................... 41
DeConcini, Dennis W., Partner, DeConcini, McDonald, Yetwin &
Lacy, P.C., Tucson, Arizona.................................... 8
prepared statement........................................... 69
Gallardo, Hon. Steve M., Arizona State Senator, Phoenix, Arizona. 11
prepared statement........................................... 74
Landfried, Todd, Executive Director, Arizona Employers for
Immigration Reform, Phoenix, Arizona........................... 13
prepared statement........................................... 77
MISCELLANEOUS ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
American Civil Liberties Union, Washington, DC, statement........ 91
Giovagnoli, Mary, Director, American Immigration Council,
Washington, DC, letter......................................... 107
Rights Working Group, Margaret Huang, Executive Director,
Washington, DC, statement...................................... 108
Young, Ambassador Johnny, Executive Director, Migration and
Refugee Services, U.S. Conference of Catholic Bishops,
Washington, DC, statement...................................... 119
EXAMINING THE CONSTITUTIONALITY AND PRUDENCE OF STATE AND LOCAL
GOVERNMENTS ENFORCING IMMIGRATION LAW
----------
TUESDAY, APRIL 24, 2012
U.S. Senate,
Subcommittee on Immigration, Refugees,
and Border Security,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room G-50, Dirksen Senate Office Building, Hon. Charles E.
Schumer, Chairman of the Subcommittee, presiding.
Present: Senators Schumer and Durbin.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Chairman Schumer. Good morning, everyone. The hearing will
come to order.
At today's hearing we will be discussing the
constitutionality and prudence of the many State and local
immigration laws enacted during the past few years. In 2011
alone, State legislators from across the country introduced
1,607 bills and resolutions relating to immigration. By the end
of the year, 42 States had enacted 197 new laws.
Tomorrow the Supreme Court is going to be considering
whether the Arizona law, known as SB 1070, is constitutional.
Specifically, the Court will be deciding if States can enact
comprehensive immigration enforcement laws designed to promote
the self-deportation of illegal immigrants. Five States--
Alabama, Georgia, Indiana, South Carolina, and Utah--have
crafted laws following Arizona's example. Court challenges have
been filed against all five of those laws, and the outcome of
those cases will likely be dictated by the Supreme Court's
decision in the Arizona case.
Discussing both the constitutionality and prudence of these
laws is necessary because the Supreme Court will base its
decision upon what the Senate had previously said about the
role of State and local government in enforcing federal
immigration law.
The wisdom of the Arizona law is also currently being
debated around the country. For instance, SB 1070 has recently
been endorsed as a model for the country by Mitt Romney, the
Republican nominee for President. Others such as Marco Rubio
have said they do not believe the Arizona law should be
expanded nationwide. In my view, these State laws are both
counterproductive and unconstitutional.
In terms of being counterproductive, the statistics could
not be any clearer in terms of the economic damage these laws
cause. In Arizona, studies have shown that after SB 1070 was
passed, the convention and tourism industries lost as much as
$140 million. Moreover, the agriculture industry has seen much
of its crops destroyed due to a lack of labor. In Alabama, a
study by the University of Alabama found that the Alabama law
is projected to shrink Alabama's economy by at least $2.3
billion annually and cost the State $70,000 per year--sorry,
70,000 jobs per year.
In terms of being unconstitutional, our Founding Fathers
gave Congress plenary power over immigration law. The Supreme
Court has consistently interpreted the naturalization language
in Article I to mean that the establishment of the immigration
laws and their manner of execution are committed solely to the
Federal Government. Even though some on the other side want to
limit the Federal Government's power and increase the power of
the States, immigration is not and never has been an area where
States are able to exercise independent authority. This makes
sense, both legally as a matter of constitutional
interpretation and practically as a matter of sound public
product.
Immigration involves international commerce and sensitive
foreign relations. Just as we would never allow 50 States to
have their own inconsistent and independent trade laws, we
should not have 50 States establishing and enforcing their own
inconsistent immigration laws. And even if States like Arizona
say they are only helping the Federal Government to enforce the
law, this issue is much like federal tax law where the Federal
Internal Revenue Service interprets and enforces the law as
opposed to 50 State agencies going to people's houses to ensure
that they have properly filed their federal tax returns.
Only federal comprehensive immigration reform can
accomplish the three objectives most Americans want to see
achieved with regard to immigration: first, ending illegal
immigration; second, fixing our dysfunctional legal immigration
system; and, third, addressing the status of people here
without legal status.
In 2010, many of my Democratic colleagues on this Committee
released a white paper with me outlining our proposal for
immigration reform. Then, as a good-faith downpayment to
encourage negotiations with those who said fix the border
first, we passed a $600 million supplemental Border Security
Act that added 1,500 troops on the border, deployed more
unmanned aerial drones, and increased border fencing and
technology. The border bill was hailed by my Arizona colleagues
as a significant border security accomplishment that they were
proud to cosponsor. As a result of this bill, Arizona's 373-
mile border with Mexico is now patrolled by over 5,200 Border
Patrol agents and 300 National Guardsmen, a 31 percent increase
from 2008, which has resulted in a 61 percent reduction in
unlawful border crossing over the same period. And yesterday, a
Pew Hispanic Center study reported that immigration from Mexico
has dropped to net zero when comparing the number of people
entering the U.S. from Mexico to the number of people returning
to Mexico.
Some in Arizona might wish to take credit for this, but the
study shows this is a national trend based on increased federal
enforcement at the southern border and decreased availability
of jobs for foreign workers. And this chart reveals immigration
to the U.S. from Mexico. It is national. And because of what we
have done on the border, as you can see, the number has gone
significantly down from a high of 770,000 people in 2002, now
140,000 people in 2010. That is a dramatic drop.
We have repeatedly invited our Republican colleagues to sit
down with us and discuss how best to reform our broken
immigration system in a manner both parties can support. It
will only pass if it is bipartisan. To this date, our
colleagues will not even sit down with us and discuss
comprehensive immigration reform legislation.
Finally, when small, noncontroversial immigration matters
are proposed that can help create jobs, they are blocked in the
Senate. Consequently, States are now taking matters into their
own hands and are passing a multitude of immigration laws that
touch upon a variety of subjects, such as employment
authorization and verification, border security, work visas,
and higher education--areas that have always been the exclusive
province of the Federal Government.
I believe it is simply too damaging to our economy and too
dangerous to our democracy to have 50 States doing 50 different
things with regard to immigration policy. I also believe that
Congress has clearly and repeatedly indicated its intent to
preempt States from creating their own immigration enforcement
regimes, which is why I believe SB 1070 and laws like it are
unconstitutional.
For instance, in 1997, Congress passed Section 287(g) of
the Immigration and Nationality Act, which allows State and
local law enforcement to enter into partnerships with ICE to
conduct immigration enforcement within their jurisdictions. In
enacting 287(g), Congress made it clear it did not want the
States, like Arizona, taking immigration enforcement matters
into their own hands and instead wanted State officials to act
with guidance, training, and supervision of the Federal
Government.
In addition, Congress explicitly wrote employment
verification laws that were designed to punish employers rather
than employees for violations of immigration law. Arizona, by
contrast, has decided to criminalize the individuals who seek
work to feed their families. This conflict of law plainly
contravenes our stated intent in passing numerous federal
immigration workplace statutes.
I am, therefore, announcing that, should the Supreme Court
choose to ignore these plain and unambiguous statements of
Congressional intent and uphold SB 1070, I will introduce
legislation that will reiterate that Congress does not intend
for States to enact their own immigration enforcement schemes.
My legislation will re-emphasize that State officials can
only engage in the detection, apprehension, and detention of
unlawfully present individuals if they are doing so pursuant to
an explicit agreement with the Federal Government and are being
supervised and trained by federal officials. States like
Arizona and Alabama will no longer be able to get away with
saying they are simply ``helping the Federal Government'' to
enforce the law when they are really writing their own laws and
knowingly deploying untrained officers with a mission of
arresting anyone and everyone who might fit the preconceived
profile of an illegal immigrant.
My legislation will also re-emphasize that State and local
governments are preempted from enacting their own employment
verification laws and penalties. Federal preemption of
employment verification laws has been endorsed by the U.S.
Chamber of Commerce and many other business groups and trade
associations. And I hope colleagues from both sides of the
aisle will join me in this effort in the event it becomes
necessary, which I hope and believe it will not because I do
believe the Supreme Court will decide that SB 1070 is not
constitutional based on the evidence that is all on one side
here.
I now would like to turn it over to Senator Durbin for an
opening statement.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, thank you very much for
calling this hearing of the Immigration Subcommittee on the
question of SB 1070, the Arizona immigration law, which I join
you in hoping that the Supreme Court finds unconstitutional.
Under our Constitution, States do not have the right to pass
their own laws preempting Federal laws on immigration.
It is wrong and counterproductive to criminalize people
because of their status, their immigration status. Law
enforcement, incidentally, does not have the time or resources
to prosecute or incarcerate every undocumented immigrant. The
Arizona immigration law will simply deter undocumented
immigrants from being part of the community and cooperating
with law enforcement where necessary.
Do not take my word for it. Ask the Arizona Association of
Chiefs of Police who oppose SB 1070.
There is another troubling aspect of the Arizona
immigration law. According to experts, this law encourages
racial profiling. Last week, I held a hearing on racial
profiling, the first one in 10 years on Capitol Hill. We heard
testimony about the provision in this law, Arizona's
immigration law, requiring police officers to check the
immigration status of any individual if they have ``reasonable
suspicion'' that the person is an undocumented immigrant. The
explanation of the law went further to say how you can gather
this notion of reasonable suspicion, and it went on to say by
the way a person dresses or by their command of the English
language.
Now, one of the witnesses at this racial profiling hearing
was Ron Davis. He is the chief of police of East Palo Alto,
California. Chief Davis, an African American, along with 16
other chief law enforcement officers and the Major Cities
Chiefs of Police Association, filed a brief in the Arizona case
before the Supreme Court. This is what they said: ``The
statutory standard of `reasonable suspicion' of unlawful
presence in the United States will as a practical matter
produce a focus on minorities, and specifically Latinos.''
Now, instead of measures that hurt law enforcement and
promote racial profiling, like SB 1070, we need practical
solutions to fix our broken immigration system. I could not
agree with my colleague Senator Schumer more. Congress needs to
face its responsibility to pass immigration reform.
Eleven years ago, I introduced the DREAM Act. This
legislation would allow a select group of immigrant students
who grew up in this country, came here as infants and children,
but would give them a chance to earn their way to citizenship
by attending college or serving in the military. Eleven years
we have been struggling to pass this. We have had majority
votes on the Senate floor but never the magic 60 number that we
need to pass it.
The best way, I have said to my colleagues, to understand
what the DREAM Act is about is to get to meet the young people
who would qualify for this legislation. As Senator Rubio of
Florida has said, ``Let us let these young people get right
what their parents got wrong.'' These people call themselves
``Dreamers.'' Under the Arizona law, SB 1070, these young
people would be targets for prosecution and incarceration. Why?
It is beyond reasonable suspicion. They have stood up and said,
``We are undocumented, we are DREAM students. We want a chance
to become American citizens.'' Under the DREAM Act, they would
be future citizens who would make our country a better place.
I want you to meet six targets of this bill, the Arizona
immigration law. Each and every one of them is a resident of
Arizona. They have stepped up publicly to tell their stories
about being brought to the United States by their parents as
infants and children, now begging for a chance to earn their
way to legal status and citizenship.
The first, Dulce Matuz. She graduated from Arizona State
University with a bachelor's degree in electrical engineering.
She co-founded the Arizona DREAM Act Coalition, an organization
of more than 200 DREAM Act students. Last week, Dulce was named
one of the 100 Most Influential People in the World by Time
Magazine. Dulce Matuz is a target of the Arizona immigration
law.
Now meet Mayra Garcia. She is president of the Cottonwood
Youth Advisory Commission in her hometown of Cottonwood,
Arizona. She graduated from high school in 2010 with a 3.98
GPA. She is now a sophomore at a prestigious university in
California. She would be a target of the Arizona immigration
law.
Now meet Juan Rios. In high school, Juan was a leader in
the Air Force Junior ROTC. In 2010, he graduated from Arizona
State University with a degree in aeronautical engineering.
Since graduation, Juan has put his life on hold. Because of
American law, he cannot enlist in our military or work in the
aerospace industry. Juan is a target of the Arizona immigration
law.
Now meet Jose Magana. Jose graduated as valedictorian of
his high school. At Arizona State University, he joined the
speech and debate team, where he ranked fifth in the Nation. In
2008, Jose graduated summa cum laude with a major in business
management from Arizona State University. Later this year, Jose
will graduate from Baylor University Law School in Waco, Texas.
He cannot be licensed to practice law in the United States
because he has no country. Jose is a target of the Arizona
immigration law.
Finally, meet Angelica Hernandez. In high school, she
served in Junior ROTC and was president of the National Honor
Society. Last year, she graduated from Arizona State University
as the Outstanding Senior in the Mechanical Engineering
Department. Angelica is a target of the Arizona immigration
law.
Unlike the Arizona immigration law, the DREAM Act is a
practical solution to a serious problem which treats these
young people and thousands of others in a humane and just way.
SB 1070 would harm law enforcement and encourage racial
profiling, going after the very people that you have just met.
That is not consistent with our values as a Nation. It is not
consistent with our constitutional values.
Mr. Chairman, thank you for this hearing.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Chairman Schumer. Thank you, Senator Durbin, for an
excellent and heartfelt statement.
Having no other people here, we will turn to our panelists.
I am going to introduce each of them. Their entire statements
will be read into the record, and then we will let each of them
make a statement.
Russell Pearce is currently the president of
BanAmnestyNow.com, an organization advocating for increased
immigration enforcement and border security. He was the former
president of the Arizona State Senate, a position he held until
November 2011. He is most widely known as the author of SB
1070, the Arizona law whose constitutionality is being decided
by the Supreme Court and that is the subject of this hearing
today. He was originally elected to the Arizona House of
Representatives in 2000 and the Arizona Senate in 2008. He also
served as the director of Arizona's Motor Vehicle Division, the
director of the Governor's Office of Highway Safety, and as a
deputy for 23 years with the Maricopa County Sheriff's Office.
Dennis DeConcini served as U.S. Senator for Arizona for 18
years, from 1977 to 1995. Prior to that, he served as Pima
County attorney, the chief prosecutor and civil attorney for
the county and school districts within the Tucson border area.
He currently serves as a partner in the law firm of DeConcini,
McDonald, Yetwin & Lacy, with offices in Tucson, Phoenix, and
Washington, D.C.
State Senator Steve Gallardo is a member of the Arizona
State Senate representing District 13. He previously served in
the Arizona House of Representatives from 2003 through 2009. He
has served on numerous State and local boards and committees
and is the leading sponsor of the State Senate bill, Arizona
State Senate bill, that would repeal SB 1070.
Todd Landfried is the executive director of Arizona
Employers for Immigration Reform, a grassroots organization
comprised of 400 small, medium, and large businesses committed
to sensible federal immigration policy. Mr. Landfried's
organization filed an amicus brief with the U.S. Supreme Court
in opposition to SB 1070.
Gentlemen, your entire statements will, without objection,
be read into the record, and we will first call on Mr. Pearce.
You may proceed as you wish, sir.
STATEMENT OF RUSSELL PEARCE, PRESIDENT, BANAMNESTYNOW.COM,
MESA, ARIZONA
Mr. Pearce. Good morning. I am Russell Pearce, the author
and driving force behind SB 1070, which is overwhelmingly
supported by citizens across this Nation. Thank you, Chairman
Schumer, for inviting me here before this honorable Committee.
It is an honor for me to appear. As you know, the illegal alien
problem is a critical issue, not just in Arizona but across
this Nation, and the effects of it ripple throughout society.
In addressing this problem, we must begin by remembering
that we are a Nation of laws. We must have the courage, the
fortitude, to enforce, with compassion but without apology,
those laws that protect the integrity of our borders and the
rights of our citizens from those who break our laws. SB 1070
removes the political handcuffs from law enforcement. All law
enforcement agencies have the legal authority and moral
obligation to uphold our laws, just like Sheriff Joe, who keeps
his oath and does the job he was hired to do.
The invasion of illegal aliens we face today--convicted
felons, drug cartels, gang members, human traffickers, and even
terrorists--pose one of the greatest threats to our Nation in
terms of political, economic, and national security.
During the debate of SB 1070, a rancher friend of mine, Rob
Krentz, was murdered on the border by an illegal alien. I have
attended the funerals of citizens and law enforcement officers
murdered by illegal aliens. I have a son, a deputy sheriff, who
was critically wounded in the line of duty in a gun battle with
an illegal alien while serving a warrant. I, too, was
critically wounded, shot in the chest and hand in the line of
duty. I have seen the real costs and damage caused by the
presence of illegal aliens in this country.
In Arizona alone, the annual cost of the illegal
immigration problem is approximately $2.6 billion; that is just
to educate, medicate, and incarcerate. And those numbers do not
reflect the costs of crimes committed by those here illegally
or the jobs lost by residents.
The terrorist attacks of September 11, 2001, underscored
for all Americans the link between immigration, law
enforcement, and terrorism. Four of the five leaders of the 9/
11 attack were in violation of our immigration laws and had
contact with law enforcement but were not arrested. The failure
to enforce U.S. immigration laws was instrumental in the deaths
of nearly 3,000 people on that tragic day in America.
Under federal law, sanctuary policies are illegal, but the
Obama administration does not sue those cities that adopt such
illegal policies. Instead, it chooses to sue Arizona for
enforcing the law, protecting its citizens, protecting jobs for
lawful residents, and protecting the taxpayers and the citizens
of this Republic in attempting to secure our borders.
During my 11 years in Arizona Legislature, I authored
numerous legislative initiatives designed to protect the State
of Arizona from the adverse effects of illegal immigration and,
most importantly, to uphold the rule of law. They include: in
2004, voter ID at the polls, passed by 57 percent of the
voters; in 2006, a constitutional amendment denying bond to
illegal aliens who commit serious crime, passed by 78 percent
of the voters, 60 percent of Hispanics; also in 2006, illegal
aliens who sue an American citizen cannot receive punitive
damages, passed by 75 percent of the voters; in 2007,
protecting American jobs and honest employers by mandating the
use of e-verify for every business in the State of Arizona.
I am also proud to say that each of these initiatives has
become law and survived the various legal challenges. In fact,
the last time I was in Washington, the Supreme Court upheld the
e-verify law against the unpatriotic challenge by the Chamber
and the Obama administration.
Because most provisions of SB 1070 are in effect, the
citizens of Arizona are safer. According to the Phoenix Law
Enforcement Association, which represents the rank-and-file
police officers, and I quote, ``Since SB 1070, Phoenix has
experienced a 30-year low crime rate. Six hundred police
vacancies, budget cuts, and old policing strategies did not
bring about these falling crime rates. SB 1070 did . . . .The
deterrence factor this legislation brought about was clearly
instrumental in our unprecedented drop in crime. And all of
this without a single civil rights, racial profiling, or biased
policing complaint.''
Simply put, SB 1070 has clearly worked, and Arizona has
acted within its authority. The Supreme Court has held the
States can utilize their inherent police powers to enforce
immigration laws. SB 1070 directs Arizona law enforcement
officers to cooperate and communicate with federal authorities
regarding enforcement of federal immigration laws and imposes
penalties under Arizona law for non-compliance.
It is only these simple and clear law enforcement measures
that are before the Supreme Court. This common-sense law is
fully within the authority of Arizona as it protects the
citizens from the effects of illegal immigration and upholds
the rule of law. And protecting our citizens is the highest
duty of any public official.
Thank you, God bless, and may God continue to bless this
Republic.
[The prepared statement of Mr. Pearce appears as a
submission for the record.]
Chairman Schumer. Thank you, Mr. Pearce.
Next we will go to Senator DeConcini.
STATEMENT OF DENNIS W. DECONCINI, PARTNER, DECONCINI, McDONALD,
YETWIN & LACY, P.C., TUCSON, ARIZONA
Mr. DeConcini. Mr. Chairman and Senator Durbin, I want to
thank you very much for the opportunity to address this very
important issue not only to my home State of Arizona but to our
Nation. The constitutionality and prudence of federal
immigration laws being enforced by State and local governments
is indeed a complex issue.
Mr. Chairman, I am a native Arizona resident. I grew up in
that State. I came from neighborhoods and a business and had a
law practice with a multitude of Hispanic and Mexican friends,
investors, and what have you. We worked together. We shared
each other's heritage and experiences. The culture of our State
reflects the rich history of the Latino influence. But during
the last two years, Mr. Chairman, we have unduly harmed our
legal Latino residents in this process: Unfortunately the
solution to the problem of people coming into this country
illegally, we have let rhetoric and political advantage cloud
sound judgment.
Mr. Chairman, this hearing partly is about 1070, and maybe
mostly, seeing that the Supreme Court will address it tomorrow.
I believe SB 1070 is ill-founded, mean-spirited, and divisive.
In addition, it requires State and local law enforcement to
carry out immigration responsibilities that lie with the
Federal Government clearly.
Prior to being elected to the U.S. Senate in 1976, as the
Chairman pointed out, I was the Pima County attorney. During
that time, I was appointed by Governor Raul Castro to head the
Arizona Drug Control District because of the tremendous drug
trafficking problem we had along our border with Mexico. The
creation of this Drug Control District did not create laws that
contradicted federal responsibility. It was a cooperative
effort put together by the legislature, a Republican
legislature, to address the problem in accordance with the
cooperation of the federal agencies, and we did just that. I
mention this because there is some similarity to the illegal
immigration issue, but laws need to be formulated in
cooperation but not hostile to each other.
When I came to the Senate, I was appointed to this august
Committee, the Judiciary Committee, and the Committee on
Appropriations. Both had jurisdiction over Border Patrol,
Customs, and the General Services Administration. I used all
the jurisdictions to focus law enforcement resources on the
U.S. southwest border along with my many colleagues at the
time, including some not from border States, like Alan Simpson
and Mark Hatfield of Oregon. We worked in a bipartisan effort.
I participated as a Member of the Select Committee on
Immigration and Refugee Policy along with my friends Strom
Thurmond, Alan Simpson, and Ted Kennedy. The Committee issued a
report in 1981 which led to the passage of a comprehensive
immigration reform bill during President Reagan's
administration. Let me remind everyone, President Reagan
supported that bill and the setting of a date to grandfather
those in this country who were here illegally with a pathway to
citizenship if they did not have a criminal record. I continue
to work hard to see that this happens and occurs.
Many ask why our efforts did not work way back in 1981, and
there is an answer. We did not secure the borders even though
we passed comprehensive immigration reform.
Former Senator Pete Domenici and I chaired the
Appropriations Committee, and we constantly added earmarks--
sorry to use that word here in this august body today--but we
added money that was not in the budget, and often it was taken
out for other reasons.
At that time, the Congress and the public just was not
focusing on the severity of the border problems. When I left
the Senate, the number of Border Patrol agents had increased
from approximately 4,000 in 1995 well over 21,000 today, as the
Chairman points out, with over 5,000 agent deployed to the
Arizona border.
So those who say the Federal Government has not done its
job in ensuring border security are wrong. I was in Congress
from 1977 to 1995. I can tell you the Federal Government in
recent years has made heroic efforts to secure our borders. It
started under the previous administration, a Republican
administration, and continues now with such programs as Secure
Communities.
We are called here today to debate the merits and the
constitutionality of 1070. I believe it is unconstitutional for
many of the reasons the Chairman pointed out, which I will not
reiterate. Having worked with law enforcement officers much of
my life, I know this law puts law enforcement in an untenable
position. Police officers are trained to profile behavior--
behavior--not people. This law does the opposite. It profiles
people. If you have brown skin in my State, you are going to be
asked to prove your citizenship. The law has bad consequences.
Let me play a clip here of an individual, and it will show you
just exactly what I am talking about. This was taken just a few
days after the bill passed both Houses and right before the
Governor signed it.
Would you play the clip, please?
[Videotape played.]
Mr. DeConcini. Mr. Chairman, thank you for taking the extra
time to view this video. This may have been unintended
consequences, as they say, but this is what has happened to
many in my State. This is not just one example that jumps out
at you.
Let me just give you one more quick one. Some statewide
political leaders and county elected officials say that as a
direct result of undocumented people coming into our State,
horrific crimes have been caused, such as beheadings in the
desert of Arizona along our border; that terrorists are
sneaking in. There is no proof to this. These examples have
turned out to be totally false, including those made by our
Governor, who had to retract them about the beheadings found in
the desert.
But this demonstrates how political this issue has become.
It has not been about creating law enforcement solutions to
secure our borders from criminals or about deportation of those
with criminal records--which by the way is a minor percentage
of those illegals who commit the crimes here. I could go on and
tell you a lot of different stories because I talk to a lot of
different people.
Finally, let me ask: Who is the target of 1070? As Senator
Durbin pointed out, if anyone tells you it is only the drug or
gun-trafficking criminals, they are mistaken. SB 1070 targets
those with brown skin, and in my State those are my neighbors,
my friends, and successful business associates. I have been in
law enforcement and the U.S. Senate when we could fix this law,
and we fixed part of it, and now 1070 has taken us in the wrong
direction.
As a legislator, I know--and as law enforcement--that
whenever you mix politics and law enforcement, you create a
toxic environment, and that is what has happened in my State of
Arizona.
Thank you, Mr. Chairman. I apologize for being longer than
anticipated.
[The prepared statement of Mr. DeConcini appears as a
submission for the record.]
Chairman Schumer. No problem. Thank you, Senator DeConcini.
And now we will hear from Senator Gallardo.
STATEMENT OF HON. STEVE M. GALLARDO, SENATOR, ARIZONA STATE
SENATE, PHOENIX, ARIZONA
Mr. Gallardo. Thank you. Mr. Chairman and Members. For the
record, my name is Steve Gallardo. I am a State Senator from
Arizona representing District 13. It is my privilege to have
the opportunity to give my perspective and experience regarding
Arizona's Senate bill 1070.
Mr. Chairman and Members, Senate bill 1070 has perpetuated
a climate of fear and division within the State of Arizona.
Without any doubt, Senate bill 1070 has done Arizona and her
people a great disservice and has done nothing to secure the
borders or resolve any of our immigration problems.
Arizona law has unfortunately subjected Latino citizens to
racial profiling and harassment.
The following situations will illustrate how Senate bill
1070 has negatively affected the lives of many Latinos
throughout the State of Arizona.
Senate bill 1070 has created racial tension and distrust
between Latinos and law enforcement as well as Latinos and non-
Latino neighbors.
I will give you an example: The tragic death of Juan
Varela, a United States citizen who was murdered in front of
his home by his neighbor, Gary Kelley, just 13 days after
Governor Brewer signed Senate bill 1070 into law. Right after
the bill was signed into law, Gary Kelley yelled racial slurs:
``Go back to Mexico. If you do not go back to Mexico, you are
going to die.'' Before long, Gary Kelley pointed his .38
revolver at Juan Varela and shot him in the face. Mr. Varela
died in the front of his home. He leaves a wife and a 13-year-
old daughter.
Senate bill 1070 has made Latinos the target of criminals
because Latinos are less likely to report crimes to local law
enforcement for fear of having themselves deported or even a
loved one deported.
Many Latina women face nightmare situations if they are
victims of domestic violence. Because of Senate bill 1070, many
of these women are placed in the position where they cannot
report their abuser in fear of getting deported. In some cases,
these women are held hostage in their own home. Mr. Chairman
and members, no woman, regardless of immigration status, should
ever be placed in harm's way.
Senate bill 1070 has shifted the priorities of law
enforcement to focus its attention away from the criminal
investigations and placed squarely on local law enforcement,
immigration enforcement. This comes at the expense of rape,
assault, and murder victims.
Most recently, the Maricopa County Sheriff's Office has
come under fire for their failure to investigate 400 sexual
assault cases. Many of these cases involve children. Maricopa
County Sheriff's Office focuses their attention on immigration
enforcement.
Senate bill 1070 and laws like it have fostered and
legitimized vigilante movements responsible for violent and
sometimes lethal attacks on Latinos. Here is another example.
The case of nine-year-old Brisenia Flores and her father,
Raul, who were killed at the hands of Shawna Forde and Jason
Bush--all members of the Minutemen Defense organization in
Arizona. The Flores were murdered in their own home as they
were being robbed. Brisenia Flores was nine years old when she
pleaded for help and was shot dead in her home.
If Senate bill 1070 has been successful in anything, Mr.
Chairman, it has been successful in breaking up families by
separating hard-working immigrant parents from their children
and limiting the success of our Latino students.
These parents and children live in fear every day, fear of
being separated from each other. It is a common practice of
parents to teach their children a phone number of a family
member that they can trust in the event that the parents get
swept away in one of Sheriff Joe Arpaio's raids in Phoenix.
Mr. Chairman and Members, the State of Arizona has dealt
with a lot of anti-immigration type legislation. The most
recent was a ballot initiative that preceded Senate bill 1070
requiring undocumented students to pay out-of-State tuition.
The DREAM Act has been exactly that--only a dream. I use my
Carl Hayden High School Robotics Team in my district, a source
of pride in my legislative district, a school team that has
beaten teams all over the world, including the Massachusetts
Institute of Technology. If it was not for their immigration
status, these students would have unlimited promise.
Unfortunately, laws like Senate bill 1070 pander to a
climate of fear and division that run rampant through the State
of Arizona. Mr. Chairman, this fear was created for a purpose.
Mr. Chairman and Members, I would submit to you that Senate
bill 1070's true intention, its primary objective, is to make
second-class citizens of U.S. Latinos, to discourage them from
voting, from going to school, seeking employment, and realizing
the American dream.
Immigration enforcement is only a secondary objective. By
their own admission, the authors and sponsors of Senate bill
1070 intend to harass immigrants, to create a hostile and
miserable environment so that immigrants would choose to
``self-deport.'' They show no regard for the civil rights
abuses of U.S. Latino citizens.
This by its very nature defines their strategy as reckless
and abusive. Senate bill 1070 is neither an immigration policy
nor a legal position but, rather, a campaign of harassment and
intimidation directed solely on the person's complexion.
Finally, the prime sponsor of Senate bill 1070 will try to
give you some rationale for the chaos of this legislation.
However, I would submit to you that any effort to justify
profiling, harassment, or oppression of anyone is un-American,
illegal, and unconstitutional on its face.
Mr. Chairman and Members, I would pray you see the wisdom
of passing legislation preempting States from addressing and
enforcing immigration laws and put emphasis on passing
comprehensive immigration reform, specifically the priority of
passing the DREAM Act for the students not only in the State of
Arizona but across this great country.
Mr. Chairman and Members, these are my comments, and I
respectfully submit them.
[The prepared statement of Mr. Gallardo appears as a
submission for the record.]
Chairman Schumer. Thank you, Senator Gallardo.
Mr. Landfried, you may proceed.
STATEMENT OF TODD LANDFRIED, EXECUTIVE DIRECTOR, ARIZONA
EMPLOYERS FOR IMMIGRATION REFORM, PHOENIX, ARIZONA
Mr. Landfried. Thank you, Mr. Chairman, for inviting me to
speak today. For the record, my name is Todd Landfried, and I
am the executive director of Arizona Employers for Immigration
Reform. AZEIR, as we refer to ourselves, was formed in 2007 and
has approximately 400 small, medium, and large business
members. We are not open borders, pro-illegal businesses
addicted to cheap labor, nor do we put profits before
patriotism. We know there are serious problems on the border,
and people's lives are being affected, and the issue needs to
be addressed. Businesses want legal and efficient access to the
labor it needs when it needs it from wherever it must come,
with little government interference or interaction as possible.
Most importantly, we want you in Congress to solve the problem.
My remarks will focus on whether laws like Arizona's Senate
bill 1070 and others are good public policy based upon their
impacts on business and the economy. By good public policy, I
mean what are the outcomes? Did they secure the border? Did
they create jobs and reduce State expenses? Did they fulfill
their proponents' promises?
It is a legitimate question, especially at a time when
program accountability is so important. What is wrong with
holding State-level immigration laws to the same scrutiny?
In my written testimony, I have shown that this attrition
through enforcement scheme has been tried before at the city,
county, and State level going back to 2006. What has come from
these past attempts? The short answer: Nothing good, unless
your only goal is to make brown people move.
After Oklahoma passed HB 1804 in 2007, the Oklahoma Bankers
Association found the loss of 90,000 unauthorized workers and
their families resulted in a $1.9 billion loss to the State's
gross State product. The Urban Institute and the Migration
Policy Institute found negligible savings on Oklahoma public
services from the departure of the undocumented because they
are ineligible for those benefits in the first place.
A Georgia Restaurant Association survey found in November
2011 that 71 percent of their members had labor shortages and
estimates the average monthly sales losses due to the labor
shortage was $21,000 per store.
Georgia farmers told their Governor they needed 11,000
workers to bring in that spring's fruit crop. Governor Deal
offered up probationers as a solution, and on the first day, 11
showed up. A week later, there were seven left. The losses that
farmers encountered in 2011 was an estimated $391 million. One
analyst said, ``We have turned good workers into criminals and
turned criminals into bad workers, losing on both ends of the
deal.'' Exactly.
Alabama is rethinking HB 56; 25 percent of Alabama's
construction workers have left the State, with few
replacements. Towns like Russellville report sales tax revenue
losses exceeding $8.5 million. Statewide losses in State income
and sales tax collections are estimated to be between $56
million and $264 million.
Arizona continues to suffer. Total losses from
cancellations and bookings for conferences and tourism were
$394 million and a loss of 4,236 jobs. In fact, there is a
chart in the back of my written testimony that highlights those
losses.
Foreign businesses and executives refuse to work in
Arizona. The loss of 150,000 consumers from the Arizona economy
resulted in an estimated decline in gross State product of
$24.4 billion, or 9.6 percent, the loss of 291,000 direct and
indirect jobs, and a resulting lost in tax revenue of $2.1
billion. Do these sound like the effects of a good law?
We were told Senate bill 1070 would bolster the economy and
create jobs, yet history convincingly demonstrates exactly the
opposite. If these laws are so good, then why are the impacts
so bad? The answer is you have bad outcomes because you had bad
inputs. Put bluntly, we are being misled by proponents who
routinely distort data, exaggerate impacts, cherrypick
statistics, and in many instances, make it all up.
You heard testimony about how it supposedly costs Arizona
$2.6 billion to educate, medicate, and incarcerate illegal
aliens. The problem is that is not the whole story as it
ignores financial contributions these workers make to the
economy. Economic studies that consider both sides of the
ledger show immigrants are a net benefit to Arizona of just
under $1 billion.
You heard 17 percent of Arizona's prisoners are illegal
aliens when in reality it is impossible to know. Why? Because
the Arizona Department of Corrections combines unauthorized
inmates with those who are here legally into a category calls
``criminal aliens.'' The latest number is 13.2 percent;
therefore, the undocumented population must be lower.
We are told because of Senate bill 1070 crime in Phoenix is
at a 30-year low, yet there are no data from Phoenix P.D., the
Department of Public Safety, or the FBI to back that up. That
fact was reiterated in this morning's Arizona Republic.
Mr. Chairman, nearly every statistic used to justify Senate
bill 1070 has serious factual problems with it. Newspaper fact-
check researchers found that nine out of 10 immigration
statements they checked, including some you heard today, are
not the whole truth. I would encourage you to take a look at
the four-plus gigabytes of reports and data on the DVD I
provided to the Committee and educate yourself on the real
facts.
I am not saying all the concerns are illegitimate. I am not
saying there are no costs. No one questions the serious issues
of drugs and smuggling on the border. No one questions the
security threats. No one denies there is an immigration
problem. We can agree on all of this. But shouldn't we spend
our time looking at solutions that might work rather than on
one we know that does not?
If you want to ask a question, it should be: What else have
you got? It amazes me that, with this scheme's history of
failure, Senate bill 1070 was the best idea they could come up
with. Maybe it is because no other solutions were allowed to be
heard and discussed. Fortunately, there are some great ideas
for solving this problem, but you do not get to hear them
because we are spending too much time arguing about Senate bill
1070. We will discuss some of these solutions May 1st in the
Rayburn Gold Room starting at 10 a.m. We have invited all
Members of Congress. We hope your staff will attend.
This continued fixation on Senate bill 1070 as some kind of
viable solution when we know better is crazy. The Supreme
Court's decision will do nothing to change the fact that it
remains bad policy and bad law. Congress, however, can and must
do something about that, and you should not waste any time
getting started. That solution must deal with the demand for
labor as well as and at the same time as border security.
Nothing else will work.
Thank you, Mr. Chairman and Members of the Committee, for
your time and attention.
[The prepared statement of Mr. Landfried appears as a
submission for the record.]
Chairman Schumer. Thank you, Mr. Landfried, and let me
thank all of our panelists for this testimony, and now we will
begin with questions.
I am going to direct some first questions to you, Mr.
Pearce. First, I want to thank you for coming because we do not
agree. That is obvious. But you have had the courage and
integrity to come here and defend your views, and that is very
much appreciated.
Okay. Now, I am interested in trying to understand the
general context behind the Arizona law. You were on Fox News on
July 29, 2010. You said your intent in writing Senate bill 1070
was--and this is your quote--``to take the handcuffs off law
enforcement, they will go home, they will self-deport.'' Do you
still stand by that statement?
Mr. Pearce. Yes, sir.
Chairman Schumer. Okay. Now, some have said that the
Arizona law is necessary because the Federal Government has not
secured the border. But to be clear, even if the border were
completely secure and the government could show that no new
people are entering the country illegally, you would still want
Senate bill 1070 to remain in effect to ensure that all of
those who are already here without status either leave America
or get apprehended or deported. Is that correct?
Mr. Pearce. Mr. Chairman, can I give better than just a
``yes'' to that?
Chairman Schumer. Sure, yes.
Mr. Pearce. Mr. Chairman, it is simply the rule of law. You
know, we have laws, all kinds of laws. You are never going to
get 100 percent compliance. We understand that. But laws
without consequences are not laws at all. And I have heard some
misinformation here today that is more disappointing. You know,
if you will remember the case Muehler v. Mena in 2005, a 9-0
landmark decision by the United States Supreme Court, it struck
down a prior decision by the Ninth Circuit Court about the
Fourth and Fourteenth Amendments of those that are here
illegally and when you can ask and when you cannot, and they
struck it down and said you can ask anytime. Those safeguards
are not in the federal law, and the Supreme Court has upheld
you can ask anytime.
In Senate bill 1070, we prohibit racial profiling. In
Senate bill 1070, we say you have to have a legitimate contact.
In Senate bill 1070, we say you have to have reasonable
suspicion. Those are the basic things taught in a police
academy to every young recruit. Civil rights, you know, the
proper respect and decorum of our citizens and those that we
come in contact with.
I find it very demeaning to law enforcement that we would
assume that those kinds of things go on. You are always going
to have exceptions to every law when you have thousands and
thousands of arrests, Mr. Chairman.
Chairman Schumer. Okay. Thank you.
Mr. Pearce. But that is demeaning to our law enforcement
community to make that. And I want to----
Chairman Schumer. Go ahead, please.
Mr. Pearce. If I might, sir, when you talk about the police
chiefs not supporting Senate bill 1070, those that are
appointed bureaucrats from open border mayors in most cases,
what did support it is nine out of 15 sheriffs. Arizona Police
Association, 10,000 officers, 23 agencies, Arizona cops, 6,000
officers, the FOP, every single organization that represents
boots on the ground supported Senate bill 1070 and worked with
me to make sure that we created the kind of exceptions that
they could make in doing their job when necessary. It is the
rule of law, mirrors federal law. It is not--we did not
regulate. That is an exclusive--exclusive--responsibility of
the Federal Government, and I agree with you, Mr. Chairman, on
that. But enforcement has never been the exclusive
responsibility. We do not hear this about drug laws. We do not
hear this about gun laws. We do not hear this about bank
robbery or the other federal crimes that we enforce on a daily
basis. States have always had--had Congress wanted to preempt
the States from enforcing the law, they would have used their
plenary powers. They have never done that. There has never been
a preemption. It has always been a collaborative effort between
local law enforcement and the Feds to secure this Nation, and
that should always be our priority, the rule of law, dignified,
compassionate, respectful, but not apologetic for enforcing our
laws and securing our borders.
Chairman Schumer. I appreciate that, and I wanted to give
you the opportunity to state your whole case because,
obviously, you are outnumbered here.
Mr. Pearce. That is usually the case, Mr. Chairman.
Chairman Schumer. Okay. Well, again, I appreciate your
being here. But I do want to ask the question again, just if
you could give me a yes or no answer on that.
Mr. Pearce. Yes, sir.
Chairman Schumer. Which is, if the border were completely
secure, if the government could show and we would all agree
that no new people are crossing the border, however that was
accomplished, you would still want Senate bill 1070 to remain
in effect so that the people who are already here without
status would leave or be apprehended and deported. Is that
right?
Mr. Pearce. Mr. Chairman, I do not mean to be difficult. A
yes or no answer does not----
Chairman Schumer. Just give me your answer to that
question.
Mr. Pearce. Well, let me give the answer, because, again,
we are a generous Nation. We have more people in this country
than every other developed nation combined, legally. But, yes,
the laws must be enforced, and with that number you talk about,
there ought to be still arrest and deportation. The largest
gangs in this country are made up of illegal aliens. The
terrorists, the kidnappers, the human smugglers, the drug
smugglers. You cannot ignore--you cannot just carve out a
little section when you do these kind of things.
Chairman Schumer. No, I appreciate that. But your answer is
yes.
Mr. Pearce. Yes.
Chairman Schumer. Okay. In trying to promote self-
deportation, do you make any distinctions if the person has
been in America for 20 years or has U.S. citizen children or
was brought here as a minor through no fault of their own? The
law does not make any distinctions among those types of people,
right?
Mr. Pearce. Mr. Chairman, federal law does not make any
distinction. That is a regulatory function, not a function of
the States.
Chairman Schumer. Okay. Next question. Do you believe that
many national political leaders agree with your policy of self-
deportation? Or do you think you have a minority view here even
within your own party?
Mr. Pearce. Mr. Chairman, I have a majority view. Senate
bill 1070 is supported two to one from coast to coast across
this Nation. After it was originally passed, 73 percent, a
Rasmussen poll, 73 percent of Arizonans supported Senate bill
1070. It is still by far the majority in favor of Senate bill
1070. Thirty-four States I have had contact with, they have
indicated their desire to pass 1070-like bills. It is----
Chairman Schumer. So you believe it is a majority opinion
of your party and of the country. Is that right?
Mr. Pearce. By far the majority opinion of my party, but
the majority opinion of America from coast to coast.
Chairman Schumer. Thank you.
I want to talk a little bit about racial profiling. There
are many critics who say Senate bill 1070 is unconstitutional
because it will lead to racial profiling of Latinos, Asians,
and other groups. So I want to try to break down the law step
by step with you to understand your thought process better
because you are the author. No one knows this better than you.
First, to be clear, as you said to several Arizona news
outlets, March 5, 2012, you ``know why [SB 1070] was written
and know every section of the bill. There is nobody better to
explain this law to the Senate'' than you. Is that an accurate
quote?
Mr. Pearce. That is an accurate quote.
Chairman Schumer. Okay. So let me go to Section 3B, known
as the ``Stop and Arrest Section,'' whose language is behind
me. You are familiar with that section, I presume. You wrote
the law.
Mr. Pearce. Yes, sir.
Chairman Schumer. Okay. I want to show you a blow-up of the
official training manual given to the Arizona police officers
on Senate bill 1070. Behind me here on the screen are the
factors the training says police may consider in developing a
reasonable suspicion that a person is an illegal immigrant and
needs to be checked. I am going to highlight a few. It says
``in the company of other unlawfully present aliens.'' It says
``the vehicle is overcrowded or rides heavily.'' It says
``dress,'' and then it says ``demeanor, for example, unusual or
unexplained nervousness, erratic behavior, refusal to make eye
contact.''
The one that arouses my curiosity and bothers me is dress.
What does an illegal immigrant dress like? Why is dress listed
in those factors?
Mr. Pearce. Mr. Chairman, that was put together by AZ Post.
I understand they worked in cooperation with ICE to develop the
profile of those folks after making legitimate contacts.
Chairman Schumer. But explain to me as the author, do you
think dress is an appropriate----
Mr. Pearce. This is--Mr. Chairman, this is not--this is
from AZ Post. This is training material from AZ Post.
Chairman Schumer. Yes.
Mr. Pearce. Not a part of the bill.
Chairman Schumer. From the Arizona Police.
Mr. Pearce. Right, not a part of the bill.
Chairman Schumer. I understand. Well, do you think dress is
an inappropriate measure----
Mr. Pearce. I think when a combination----
Chairman Schumer [continuing]. Is a reason to stop somebody
because of their dress? And then I would ask you, if it is not
inappropriate, what does an illegal immigrant dress like?
Mr. Pearce. Mr. Chairman, almost all--when you train a
police officer--I have been in this business for a long time in
law enforcement and public safety. It is a compilation of
issues that tend to raise the level of suspicion to the level
of probable cause, not any one isolated incident. This is just
a list of things that lead you to ask questions. I know
questions are a dangerous thing. People might actually give you
an answer. So----
Chairman Schumer. Sometimes questions are a dangerous thing
because they lead to profiling, and it seems to me when the
word ``dress'' is used--I mean, just give me--do you in your
experience--you have lived in Arizona your whole life, I
believe?
Mr. Pearce. Yes, sir.
Chairman Schumer. Do illegal immigrants dress any
differently than----
Mr. Pearce. Mr. Chairman----
Chairman Schumer [continuing]. Legal immigrants or American
citizens?
Mr. Pearce. I do not want to be confrontational, Mr.
Chairman.
Chairman Schumer. No. I know.
Mr. Pearce. But I want to tell you, this is a list of
things to look for, and they are trained by ICE. This was ICE
training in terms of a compilation, but it is like anything----
Chairman Schumer. ICE did not----
Mr. Pearce. No one issue does--if I am responding to a bank
robbery or a Circle K robbery and I have got a description
kicked out by radio of a white male, average height, white T-
shirt, dark pants, running down the street, I am responding to
that crime scene and I see a white male, white T-shirt, dark
pants, turns out to be jogging past, I stop him. I have a
pretty good reason to ask him a few questions. When I get to
the Circle K and I find out he is not the guy, he gets
released. You have to respond to reasonable suspicion to do
your job, Mr. Chairman.
Chairman Schumer. My argument----
Mr. Pearce. But this is just a list of things to look for.
Chairman Schumer. First, I do not believe ICE sanctioned
the use of the word ``dress.'' We will check that out. If they
did----
Mr. Pearce. I am just told that that is who they worked
with in cooperation of developing that criteria, Mr. Chairman.
Chairman Schumer. So let me ask you this question: Instead
of going through these criteria and other criteria, why didn't
you just say--and, again, the criteria are not yours. The
Arizona police, as you say.
Mr. Pearce. Yes, sir.
Chairman Schumer. That is what we say up there, mandatory
check. But why didn't you just say that everyone who is stopped
by police has to be checked for legal immigration status? Why
do you require the police to form opinions about whether a
person is an illegal immigrant first before requiring police to
ask that person for proof of legal status? Doesn't the way you
wrote the law either require or certainly inveigh toward racial
profiling?
Mr. Pearce. Just the opposite, Mr. Chairman. Again, under
federal law, you know--under the U.S. Constitution and the
Arizona Constitution, we have the Equal Protection Clause. I
knew those kinds of issues would be raised by those open-border
folks that are against any enforcement. We have been sued on
everything we have done from voting fraud, to stop voting
fraud, welfare fraud, to going after illegal employers who
compete illegally and immorally and have a competitive
advantage over the honest employer. It does not seem like--no
matter what we do, Mr. Chairman, we are attacked for simply
enforcing the law and trying to protect American citizens and
jobs for Americans. So you knew those questions would be asked.
You knew they would come after you. We simply wrote the bill to
preempt those kinds of silly arguments and try to protect--try
to protect everybody's rights. As a civil libertarian, I am a
believer that everybody--you have to have a reason to do stuff.
I do not want a police state. I want a reason to do something.
That is why those--that is why that bill was written in the
manner it was written.
Chairman Schumer. So let me ask you again. Why wouldn't it
have done just what you say, rule of law, not discriminate, why
wouldn't it have been better to say that everyone stopped by
the police should be checked for their status? Why come up with
obviously a really problematic definition of suspicion? And you
have seen in the regulations that it is problematic.
Mr. Pearce. Well, Mr. Chairman, I do not agree that it is
problematic. In Arizona, first of all, we made the proper
exceptions. If you have an Arizona driver's license or a
driver's license from a State that requires proof of
citizenship or legal presence, you are automatically exempt
from that. That is axiomatic at that point reasonably that you
are legal. All we wanted to do in this bill is common sense.
Chairman Schumer. Right.
Mr. Pearce. You know, we teach our officers to have common
sense. You know, respond to reasonable suspicion. Not
everybody--you know, you stop somebody, I do not want to hold a
family up while I am asking all kinds of silly questions when
there is no reason to ask those kinds of questions. This was
based on reasonableness, Mr. Chairman.
Chairman Schumer. Well, I guess many would disagree with
that----
Mr. Pearce. I understand.
Chairman Schumer. [continuing]. Including some on the
panel.
Let me ask you a question about minors. If a police officer
stops a minor, what documentation is the minor supposed to show
the police officer to prove that he or she is a U.S. citizen?
Mr. Pearce. Mr. Chairman, it is a little different for
minors, needless to say. They are not required--and if you are
an adult, you are required under federal law to carry your
indicia with you at all times, at all times under 8 U.S.C. 1304
and 1306. You know, so, again, reasonableness is the thing. If
there is not a reason to ask, officers are not going to ask.
Chairman Schumer. Well let me ask you this: There is a car
driving--there is an adult driving it. There are minors in the
back seat. Now, the law allows the children to be checked,
right?
Mr. Pearce. Well, Mr. Chairman, at a certain age--and I am
not recalling the age. At a certain age----
Chairman Schumer. No, there is no age. Just all the
children can be checked and should be checked under the law and
its regulations. What are the children supposed to show?
Mr. Pearce. Mr. Chairman, if they do not have ID, they are
not supposed to show anything. You are not required to have ID
unless you are a driver or, you know, in Arizona we allow
children to go down and get an Arizona ID at any age if they
have a parent----
Chairman Schumer. So you think all--under this law,
children, to prevent themselves from being sent to a detention
center or whatever, would have to carry some kind of ID.
Mr. Pearce. Mr. Chairman, that is not accurate.
Chairman Schumer. Well, that is----
Mr. Pearce. Mr. Chairman, there is a reasonableness again
inferred. You know, you are taking the extreme, and I
understand trying to make your point, but, Mr. Chairman, it is
just not accurate, it is just not so.
Chairman Schumer. Well, does the law say anywhere that
children do not have to be checked when they are stopped in a
car in the situation? I understand the law says the opposite.
Mr. Pearce. Mr. Chairman, it gives--this law makes
exceptions to law enforcement, you know, to make reasonable
decisions based on the circumstances at the time. I suspect--
and, again, I think it is demeaning to law enforcement to
assume they do not know how to do their job in a respectful,
proper----
Chairman Schumer. I want to go to ``demeaning to law
enforcement'' because--I am just going to submit for the record
Section 3B, and it does not list any exceptions at all.
[The information appears as a submission for the record.]
Mr. Pearce. Mr. Chairman, it is modeled after federal law.
Chairman Schumer. Okay. Well, but there are no exceptions
here. I do not believe federal law is based--I do not believe
this is consonant with federal law.
Mr. Pearce. Yes, sir.
Chairman Schumer. Let me go to----
Mr. Pearce. It mirrors federal law, Mr. Chairman.
Chairman Schumer. Let us go to ``demeaning police.''
Doesn't your law permit any citizen of Arizona to sue any
police department or any individual police officer who refuses
to ask for immigration documents during a stop?
Mr. Pearce. Mr. Chairman, let me correct you. It does not
allow them to sue any individual law enforcement officer when
they use the discretion that we give them under this law and
other laws. That discretion has allowed the officer--and if you
read the bill carefully, you will see that discretion. In fact,
we give the officers----
Chairman Schumer. But there is a right to sue.
Mr. Pearce. Let me--I understand, Mr. Chairman.
Chairman Schumer. So just explain that right to sue to
everybody.
Mr. Pearce. Yes, sir, and I will. But law enforcement has
qualified immunity under this bill because we knew that they
would be sued whether they do or they don't. What the lawsuit
has done--that phrase in our founding document, ``We, the
people''? In Arizona, we still believe in ``We, the people.''
We gave we, the people, the ability to sue their agency, their
government, if they will, if they fail--have a policy--have a
policy that limits or restricts the enforcement of our
immigration laws as required under federal law. So, yes, sir,
we do give citizens a right of----
Chairman Schumer. It is up on the chart here. It says,
``Any person who is a legal resident of this State may bring an
action''--that is a judicial action--``an action in superior
court to challenge any official or agency''--not just the
agency but any official, that is the words of the statute--``of
this State or county or city or town or other political
subdivision of this State that adopts or implements a policy
that limits or restricts the enforcement of federal immigration
laws.''
Now, John Smith could decide that Officer Jones has adopted
a policy of not stopping the right people in John Smith's mind
and sue, and that would be an actionable case to see how the
court would decide it. And I just want to ask you this: Is
there any other statute in Arizona that you are aware of that
allows citizens to sue police officers for not enforcing a
particular law?
Mr. Pearce. My understanding, there are a couple, but let
me explain----
Chairman Schumer. I have not come across any, so you can
submit them into the record. But I would state for the record I
have not seen any. We checked that.
Mr. Pearce. Okay. Mr. Chairman, again----
Chairman Schumer. So I would ask you--I am just going to
ask you this and then let you respond at some length. Why was
this law singled out to allow this action? Isn't that demeaning
to police officers? And----
Mr. Pearce. Mr. Chairman----
Chairman Schumer [continuing]. Just one other question,
maybe the most important. Won't that push them to do things to
protect themselves from a lawsuit that they believe they should
not do? You can answer all of those.
Mr. Pearce. And I am grateful for that chance to answer
that. Law enforcement sat down with me to write that section,
Mr. Chairman, and the ``official'' was interpreted as somebody
in an official capacity to set policy, and that is why the
qualified immunity is to the officer on the street where we
give them the discretion to enforce this law.
You know, law enforcement and attorneys sat down as we
decided and mulled over that language. That was their language
put in by them, comfortable language that they felt gave the
officers the protection they need to have discretion, at the
same time language that was more compelling to the city to
eliminate. Sanctuary policies are illegal, Mr. Chairman. It is
illegal under 8 U.S.C. 1644 and 1373 to have a policy that
limits or restricts the enforcement of these laws. Not only are
States not preempted, they are preempted from having a policy
that preempts them under federal law. That is what this is
about, making sure they do their job, taking the handcuffs off
them, as you have stated and quoted me, and that is exactly
what this is doing. And we gave them qualified immunity while
enforcing this law and gave the citizens the right to hold
their government accountable.
Chairman Schumer. How does it square taking handcuffs off
law enforcement and then allowing citizens to sue law
enforcement because an average citizen with no experience in
his or her judgment says they are not enforcing the law? It is
sort of a contradiction, and I am just curious as to why on
this particular law you wrote in that provision when it does
not exist, I do not think, in any other Arizona statutes, but
certainly not in the vast majority of law enforcement statutes?
As somebody who has been a pretty pro-law and order, pro-police
person in my career, the last thing police like is to be sued
by citizens supplementing their own judgment.
Mr. Pearce. Again, I do not want to, you know, take this
into he said/she said back and forth, Mr. Chairman, but the
truth is they helped write it. That was their comfort--that was
language they were very, very comfortable with. They sat down
with me. We sat with their attorneys and with the associations
and wrote that language to make them comfortable. That is why--
and, again, Mr. Chairman, you know, this whole thing--you know,
when you talk about no other bill--I do not know of any other
law that brings me to Washington, D.C., in Arizona State law
that requires me to defend the rule of law. I have not been
here to defend the tough DUI laws that we have. I have not been
here to defend the human smuggling laws that we have. I have
not been called to Washington, D.C., to defend anything else.
So you see why we have to be very careful when we wrote this
and put those provisions in there? Mr. Chairman, we knew that
we would be challenged by everybody in town for simply trying
to enforce our laws and protect our citizens and protect jobs
for Americans.
Chairman Schumer. Okay. Well, thank you. I have one more
area of questioning, but I do not see how it either protects
police or protects you from being criticized to then allow
citizens to sue the police because in their judgment they did
not enforce it. But let us go to documentation.
Mr. Pearce. Could I just----
Chairman Schumer. Yes, please, you can answer that.
Mr. Pearce. Mr. Chairman, that law is not--that piece has
not been enjoined. Only four sections of SB 1070 have been
enjoined. The other six are in place. That one is in place. We
had not one lawsuit from the citizens. This runaway train that
you are kind of painting a picture of, the citizens are going
to jump up and look forward to suing their government, it has
not happened. We do not have one lawsuit as of today because
those policies have been eliminated in the State of Arizona.
Chairman Schumer. But that is because the rest of the law
has been enjoined if it is----
Mr. Pearce. No, it has not----
Chairman Schumer. If it goes back into effect, we will see
citizens sue.
Mr. Pearce. But, Mr. Chairman, that is not true. In the
first part of SB 1070, it says you will not have a policy that
limits or restricts the enforcement of these laws so the
slightest degree--to the slightest degree. So there must be
some compliance. Citizens are not running to the courts to sue.
Chairman Schumer. Let me go to one final area of questions,
and I appreciate my colleague, Senator Durbin, being patient
here. There is another chart I want to put up behind me. Do you
know how many forms of identification exist today that can be
shown to prove your lawful status in the United States by
federal law?
Mr. Pearce. I do not know the exact number.
Chairman Schumer. No, I did not either, so do not feel bad
about that. But there are 53. The answer is that there are at
least 53 documents that the Department of Homeland Security
says will prove lawful status.
Now, again, I am going to show you--those are the 53. You
do not have to read them all. There are a lot of them. That is
the point.
Now I am going to show you your training manuals, the
Arizona police training manuals, and it says the only documents
are--much more limited, and I will read them: a U.S. passport,
U.S. military DD214, U.S. military ID card, U.S. military
dependent card, U.S. birth certificate, U.S. and State
government employee ID cards, tribal ID cards, and driver's
licenses. So there are just eight documents.
Now, according to the law, if a legal immigrant shows--this
is a legal immigrant, not illegal--any of these 45 other valid
documents to police--this is according to your law--they have
to be taken to an ICE facility to have their immigration status
determined by a Federal Government official or wait on the side
of the road for an ICE official, a federal official, to come
before they can be released. Is that correct? That is what the
law says, right?
Mr. Pearce. No, that is not quite correct, Mr. Chairman.
There is a 24/7 hotline that ICE has set up and also 287(g)
trained officers who are trained--or if they are cross-
certified as federal agents can make determination for those
purposes. It is usually a five-minute phone call on the phone
to an ICE agent or a 287(g) trained agent, and there are 200-
something that are trained in Maricopa County alone, Maricopa
County deputies. So it is a five-minute conversation on the
telephone.
Chairman Schumer. Well, I just want to submit for the
record a statute of the police training manual again, Arizona
police: ``If reasonable suspicion of unlawful presence exists
and it is practicable (see below), call ICE, CBP, or a 287(g)
officer to determine the immigration status of the person.''
So, in other words, you are not consonant with federal law. You
are not helping federal law enforcement. In other words, if you
are doing what you say you are doing in this statute, you would
say these State police officers, if they saw any one of these
53 documents, should be able to say, okay, that is ID and go on
your way. But instead what Arizona does--and it does it in a
lot of senses; this is just one little example--is it restricts
the federal law and substitutes its own judgment. Isn't that
correct?
Mr. Pearce. Mr. Chairman, no, that is not correct. And,
again, they have a hotline--these are guidelines, as most
policy----
Chairman Schumer. Yes, but----
Mr. Pearce. These are guidelines for those officers, and
then as you noticed, what you just read, then call. That is a
24/7 line.
Chairman Schumer. Why is it that the State police officer
under your law can enforce some provisions that are allowed in
federal law but not so many others? Isn't that--that is not
helping the Federal Government enforce the law. That is
supplanting your judgment and restricting the federal law.
Mr. Pearce. Mr. Chairman, I respectfully disagree. That is
not what it does at all.
Chairman Schumer. Okay.
Mr. Pearce. It simply gives them guidelines of documents
that are acceptable on their face, and any other questions you
have, you simply call ICE or a 287(g) trained officer. Again, I
will repeat myself, and I hate to be too redundant here, but it
is a five-minute conversation. It happens every day of the
week.
Chairman Schumer. Yes, but I am sure there are many other
instances that are like the clip that Senator DeConcini showed
where they have to be brought to a particular place, detained,
and somebody else has to look at them. We will ask these other
witnesses----
Mr. Pearce. Mr. Chairman, we do that for----
Chairman Schumer [continuing]. If they are familiar----
Mr. Pearce [continuing]. DUI guys, too, and some--you know,
that is an officer discretion.
Chairman Schumer. Okay. Thanks.
I have a few more questions for the other witnesses, but I
have kept Senator Durbin long enough, so I am going to call on
him now to ask some questions, and then I will go back.
Senator Durbin. Thank you, Mr. Chairman. I appreciate your
line of questioning.
Let me start, if I might, with Senator Gallardo. There is
an agency in Chicago. It is a charity. It is called Las Mujeres
Latinas en Accion. It has been in business for over 20 years.
It was established in the Hispanic neighborhoods of Chicago as
a domestic violence shelter, primarily for new immigrants to
this country and for the undocumented, so that if women and
children were the victims of violence, they had a safe place to
go. They had someone who would listen to them, counsel them,
and refer them to law enforcement in those circumstances where
perhaps the husband has been abusive to the mother/the wife and
even abusive to the child.
I have supported them throughout my time in office, because
I do not believe any of us want to see that happen, and we want
to do everything we can to stop those guilty of that type of
crime.
You talked about the impact of this law, this Arizona
immigration law, on people living in Arizona. Could you tell me
your opinion as to whether or not this law makes it easier or
harder for an undocumented mother to come forward and to report
to law enforcement domestic violence or even the abuse of her
children?
Mr. Gallardo. Definitely, Mr. Chairman, Senator. Senate
bill 1070 has not even been fully enforced. I mean, there are
still portions of it that have not been acted on, and the
portions dealing with local law enforcement trying to enforce
immigration--or forcing them to enforce immigration law--and
just a real quick comment in regards to Mr. Pearce's comments
in regards to law enforcement. The first lawsuit filed against
Senate bill 1070 was a Phoenix police officer. We are talking
an officer on the street who came forward spending his own
dollars to file a lawsuit against the bill because of exactly
these types of situations. The wall that is placed between law
enforcement and the Latino community is there, and the law--
Senate bill 1070 has not even gone into effect, and there is
already the wall there.
So you have situations like women who are in a domestic
violence situation who are too fearful of going to law
enforcement and reporting their abuser because of the fear of
them getting deported and separated from their kids.
So, I mean, this law has not even been in effect, and we
are already feeling the consequences. And it is unfortunate
that you see women constantly--I work real closely with the
Coalition Against Domestic Violence in the State of Arizona,
and report after report of situations where women who are
undocumented, who are in a relationship, are for the most part
held hostage in their own home because of their fear of going
to law enforcement. Senate bill 1070 has not even been put into
effect, and we are already seeing this barrier.
You ask any law enforcement officer in the State of
Arizona, they will tell you the number one way for them to
solve any type of crime is working real closely with the
community. It is community policing. That is how they resolve
crime. It is having folks going to law enforcement and
reporting these types of crimes when they are victims or when
they witness crimes. Unfortunately, Senate bill 1070 puts a
wall right between law enforcement and the Latino community,
and particularly with women suffering from domestic violence,
too fearful to go to police to ask for help because of their
fear of, one, being deported and, even worse, being separated
from their kids, and that is their big concern.
Senator Durbin. Or being charged under this law.
Mr. Gallardo. Exactly.
Senator Durbin. Because of a reasonable suspicion that they
are in this country in undocumented status. So here is a
mother, a wife, a victim of domestic violence, perhaps with a
child who is a victim of child abuse or worse, who is fearful
to come to the law to protect herself or her child because of
this 1070.
Mr. Gallardo. And, Mr. Chairman, Senator, we are pointing
out an area in the law that--this is exactly why Governor
Brewer denied the invitation. She cannot justify the very bill
that she signed. It is these types of situations that if you
ask her these questions, she cannot answer them, because it has
put a very polarizing sense with law enforcement and the
community. I mean, this wall that is placed in front of women
or victims of crime that 1070 is really hurting these victims.
And it is unfortunate, particularly in the cases of domestic
violence where you have women who are just held hostage. They
are in terrifying situations, and now we have a bill that has
not even been fully enacted, and it is still already creating
this huge wall.
Senator Durbin. Thank you.
Mr. Pearce, you published something on, I believe it was,
May 24th of 2011 entitled ``Warning: The Nightmarish DREAM Act
is back,'' and it was on the letterhead of BanAmnestyNow.com.
It was a lengthy piece. ``It Is Back, Help Us Stop the DREAM
Act'' was the title of it. And in one section of it, you
suggested that the proponents of the DREAM Act talk about those
who would be eligible as honor students and so forth. And you
went on to say, ``What the pro-amnesty interests never show are
the tens of thousands of criminals, drug dealers, human
traffickers, and gangsters who are caught and sent back over
the border each year, only to return time and time again. Help
me stop the DREAM Act.''
Mr. Pearce, have you read the DREAM Act?
Mr. Pearce. Mr. Chairman, which version?
Senator Durbin. Well, that is a correct statement. It has
changed. But there has been one consistent thing throughout.
The one consistent thing is people with a serious criminal
record will never be eligible for the DREAM Act. Never. There
has never been a version of the bill that I have been sponsor
of that would allow anyone guilty of being criminal, drug
dealer, human trafficker, or gangster to be allowed into the
United States under the DREAM Act. Do you disagree with that?
Mr. Pearce. Yes, I do to some degree because not all those
are convictions. Not all those are convictions, Mr. Chairman.
We are only talking about convictions that would be prohibited
from it.
Second, Arizona, the voters have voted 75 percent to not
allow the DREAM Act----
Senator Durbin. That does not answer my question, sir. I am
asking you whether a person who has been convicted of drug
dealing is eligible under the DREAM Act.
Mr. Pearce. Convicted, Mr. Chairman, they probably would
not be eligible under the DREAM Act. But the DREAM Act goes
much farther, as you know. It is a form of amnesty within
itself. You know, and, again, I do oppose the DREAM Act. I will
make it very clear, Mr. Chairman. And, again, Mr. Durbin, these
are always difficult issues, Mr. Durbin. All of us have a
heart, and all of us have compassion. But laws that have no
consequences are no laws at all.
Senator Durbin. So let me ask you this: If you were
speeding down the highway and had your infant in a car seat in
the back seat, and you were pulled over and charged with
speeding, should that infant get the ticket, too?
Mr. Pearce. Mr. Chairman, that is not--Mr. Durbin, I do not
follow that analogy at all.
Senator Durbin. No one should because----
Mr. Pearce. It does not happen.
Senator Durbin. Well, I will tell you how it happens. It
happens when an infant is brought to the United States and the
parents do not file the papers. The infant did nothing wrong.
The infant has lived here its entire life and graduated high
school and now wants a chance to earn its way into legal
status, and you are saying because the parent did not file the
papers, now the child must suffer.
Mr. Pearce. Mr. Durbin, if I might respond. You know,
again, you need to blame those responsible and not us for
having it be a Nation of laws. I have met with these students
at ASU. I have met with a bunch of them that are in that
status. And we even shared some tears together. Some of those
are wonderful kids. And I do not how you carve out--because the
way this bill works, it is always a blanket to everybody. It
does not carve out individually. It is a blanket amnesty for
those folks.
There are exceptions that I think the law allows, certain
exceptions of the law, but those ought to be carefully executed
exceptions, Mr. Durbin.
Senator Durbin. Mr. Pearce, Mr. Pearce, the DREAM Act is
not blanket amnesty.
Mr. Pearce. Yes----
Senator Durbin. You have to earn your way into legal
status.
Let me introduce you to another one of your neighbors from
Arizona. I would like you to get to know him a little bit here
while you are at this hearing. His name is Oscar Vasquez. He
grew up in your home State, spent his high school years in
junior ROTC. He entered a college-level robot competition
sponsored by NASA. He was competing against students from MIT
and other top universities. He won first place.
In 2009, Oscar graduated from Arizona State University with
a degree in mechanical engineering. Not exactly a criminal,
drug dealer, human trafficker, or gangster. He was one of the
top three students in his class.
Let me tell you what happened after he graduated and
realized he could not be licensed as an engineer because he is
undocumented. His parents brought him here as a child. He has
no legal status in this country. He went back to Mexico. And
while he was in Mexico, the Obama administration granted Oscar
a waiver to re-enter the United States. Now, at any time before
he left for Mexico, he could have been pulled over under your
law, under Senate bill 1070, reasonable suspicion, maybe the
way he dresses or the fact that he may have an accent. Without
the waiver from the Obama administration, Oscar would have been
barred from returning to the United States for at least 10
years and separated from his wife, Carla, and their two-year-
old daughter, Samantha, who live in Arizona and are American
citizens.
Well, the good news is he was given the waiver. He came
back to the United States. He is an example of a DREAM Act-
eligible person. Do you know what he did when he came back to
the United States, Mr. Pearce? I am about to tell you. He
immediately enlisted in the United States Army. He completed
basic training, and then he was sworn in as an American
citizen. Today Oscar is serving our country and his country,
the United States of America, in Afghanistan.
Now, you have criticized the DREAM Act as ``some liberal
dream of creating an American military staffed with foreign
soldiers.'' Do you consider Oscar Vasquez a foreign soldier?
Mr. Pearce. Mr. Durbin, you know, Oscar is a good story to
use. The exception was made. That is exactly what I am talking
about. Those exceptions ought to be carefully thought out and
not just a blanket amnesty or support.
There is a cost to the American taxpayers for all this. You
know, if you want to make exceptions, I am okay with the proper
exceptions, and I think Oscar is probably one of those that met
all the criteria that any American would be proud. And
certainly I am proud that he would join the military, proud
that he would defend the Nation he wants to be a part of. Those
are good things, Mr. Durbin. Do not take----
Senator Durbin. Be careful. It does look like you are
getting close to the DREAM Act here.
Mr. Pearce. That is right. I am not in favor of a blanket
amnesty approach to the DREAM Act or anything else. There are
costs of hundreds of millions of dollars.
Senator Durbin. I have got to get you away from----
Mr. Pearce. I am talking about the----
Senator Durbin [continuing]. The cliches----
Mr. Pearce [continuing]. Exceptions that are appropriate.
We have them.
Senator Durbin. Mr. Pearce, you were in the legislature. I
have got to get you away from the cliches to actually read the
bill.
Senator DeConcini, these stories about your fellow Arizona
residents, you must know many yourself, families that are going
through this. We are now reaching a point where these DREAM Act
students are stepping up and self-identifying so people know
who they are, what their dreams are, and what part they can
play. You had the honor of representing the State of Arizona
for so long. Can you put their stories in the context of your
home State and this debate over Senate bill 1070?
Mr. DeConcini. Well, Mr. Chairman, I will make an attempt
to do that. Had I been here, I would have supported the so-
called DREAM Act. I supported immigration reform that is
orderly, safe, and legal, and thus creates a pathway--not
amnesty--a pathway to citizenship. There are numerous examples
here of people--I serve on the Arizona Border of Regents. We
govern the three universities, composed of eight appointed
members. We have constantly had the problem of students coming
to their presidents and some of them petitioning members of the
Board of Regents to grant them some kind of an exemption, some
way to stay in school. And our legislature put forward
legislation that says they have to pay out-of-State tuition if
they are going to stay in our universities and yet they may be
deported under Senate bill 1070. It has caused immense pain and
suffering in the Latino community. I know many of students
caught up in this crisis.
And, you know, as long as we are on the subject matter, my
distinguished colleague, former Senator Pearce, will tell you
this is not profiling. It is profiling. Police officers tell
you it is profiling. They feel they have to profile. There are
two county sheriffs-- located on the border with Mexico, Santa
Cruz and Pima Counties. These two sheriffs are opposed to this
bill. These two sheriffs are against it because it infringes on
federal law, and they are not trained to enforce federal
immigration law. The Secure Communities program that DHS has
put in place has helped train them, but they refer people over
when there is a violation of the law.
So it is absolutely absurd to state that SB 1070 does not
lead to profiling. This has become such a profiling issue in
Arizona that two of our sheriffs, elected sheriffs, one in the
largest county, is under investigation both criminally and
civilly. The civil action is based on profiling. And that is
the reality because people are being profiled.
And, you know, you can talk about, well, that was not the
intent. Maybe it was not the intent. ``Oh, I have got a heart,
and we do not want to do that.'' But that is the fact. Imagine,
two law enforcement officers duly elected enforcing this law
are under investigation, one for criminal, one for criminal and
civil, and the civil part is profiling, and the other one is
misuse of the office. And I could tell you stories that would
make your hair stand on end of public officials, including a
superior court judge that was indicted because he opposed this
particular sheriff, and two members of the Maricopa County
supervisors who were indicted. That county attorney that
indicted them with that sheriff has been disbarred in Arizona,
and that sheriff is under investigation.
So, you know, it has gotten so political, and if you talk
out against some of the law enforcement people, you get
arrested in Arizona. If you are judge and you rule against
them--he brought a criminal action against a judge. All these
actions were thrown out. All were thrown out. Maricopa County
just settled a $1 million settlement lawsuit by one of those
supervisors who sued after the case had been dropped the action
of that prosecutor and because of that sheriff.
Thank you, Mr. Chairman.
Senator Durbin. Thank you, Senator. And I will just close.
Thanks, Senator Schumer, for the extra time here.
I want to echo his words as we did at our hearing on racial
profiling. I have the highest respect for our law enforcement
officials. The men and women who get up every morning and put
that badge on and risk their lives for me, my family, my
community, my neighborhood, my State, and this country deserve
our respect. We do not help them in their job when we create
laws like this which put them in a position of calling people
out because of their status, not because of the suspicion they
have even committed a crime. And that is not fair to them. It
does not make their job any easier.
Thank you, Mr. Chairman.
Chairman Schumer. Thank you, Senator Durbin.
I just have a few more questions, and these are to the
other three witnesses.
First, all of you are Arizona citizens and residents,
right? Can you point out ways that illegal immigrants,
undocumented immigrants, dress differently than other people?
What does it say about the Arizona police when they say that is
one of the things to look for?
Mr. DeConcini. Mr. Chairman, if I could just comment, as a
former Senator, a former prosecutor, native Arizonan, a mother
who was a native Arizonan, I am embarrassed for my State. I
apologize for Arizona's actions toward our Latino community,
legal or illegal. This is not a way to treat people. So many of
the religious organizations in our State, they have outreach
programs. They do not ask whether or not you are an illegal
immigrant. As Senator Durbin pointed out, the violence,
domestic violence--for any other kinds of crimes, they do not
ask, because that is what America is all about. And the Federal
Government has the responsibility to enforce immigration laws.
Thank you, Mr. Chairman.
Chairman Schumer. Either Senator Gallardo or Mr. Landfried
in terms of my question?
Mr. Gallardo. Thank you, Mr. Chairman. Senate bill 1070 has
been the worst piece of legislation ever passed in the State of
Arizona. If you look at Section 3B that you were mentioning
before, where reasonable suspicion exists that a person is an
alien and is unlawfully present in the United States,
reasonably suspicious, the only way to determine this--it is
not by clothing. It is by the color of their skin, end of
discussion. There is no way to enforce Senate bill 1070 without
using race as the determining factor if someone is here
legally. I would propose that if Mr. Pearce or myself were
walking down the street and you asked law enforcement to pick
out the person who they suspect would be here undocumented,
they are not going to be pointing at Mr. Pearce. They are going
to be pointing at me. They have to use race in order to enforce
Senate bill 1070. That is the unfortunate part.
And, Mr. Chairman, if Senate bill 1070 was so popular, why
did the sponsor get recalled out of his own legislative
district?
At the end of the day, this bill is bad public policy by
the State of Arizona. It has put a black cloud over the State
of Arizona. It has given us a negative image that it is going
to take us years to get out from underneath. It is poor public
policy, Mr. Chairman.
Chairman Schumer. The legislation, as you know, is before
the Supreme Court tomorrow. We reached out to many Arizona
officials. I will say this for Mr. Pearce. He was the only one
who would come. If you believe in the law, if you voted for the
law, if you are enforcing the law, why can't you come and
defend it? But Mr. Pearce was the only one who would come. He
has had his opportunity to make his case. Governor Brewer did
not want to come. We reached out far and wide to incumbent
officials who supported the law. No one would come--which says
something, I think, about the law. But it also is to your
credit, Mr. Pearce, that at least you have the integrity to
come here.
I wanted to ask Senator DeConcini, the clip you showed,
which was powerful and moving, I take it that happens
frequently.
Mr. DeConcini. Mr. Chairman, I do not have factual
information to give you a number. I am told----
Chairman Schumer. But Mr. Pearce was sort of making it seem
like it is an exception.
Mr. DeConcini. I am told by law enforcement officials, the
sheriff of Pima County has conveyed to me that, yes, that
happens. And he feels that his deputies should not have to be
put in a position of being liable if they should not ask
somebody their immigration status.
Chairman Schumer. Mr. Gallardo, are you familiar with how
the law is being--well, it has not had much time to be enforced
because it was enjoined, but----
Mr. Gallardo. And, Mr. Chairman, I think that is the
critical----
Chairman Schumer. I think the clip was actually before the
law was passed, right? Is that right?
Mr. DeConcini. Mr. Chairman, it had passed both Houses, and
the Governor signed it about three days later, but the intent
was there, obviously, so law enforcement knew it was going to
pass. The Governor had said she was going to sign it.
Chairman Schumer. Go ahead, Senator Gallardo.
Mr. Gallardo. Thank you. Mr. Chairman, I think that is the
critical part of Senate bill 1070. It has not even been fully
enacted. Yes, we are still already seeing the consequences over
the last two years. We had Julio Mora, who was arrested,
detained, he was brought in, and he is a U.S. citizen. These
are situations after situations after situations. Juan Varela,
a United States citizen who gets in an argument just days after
Governor Brewer signs the bill, and violence occurs and Mr.
Varela is dead over Senate bill 1070. These are unintended
consequences that come from legislation when the State tries to
fix what is ultimately a federal immigration problem and then
forces law enforcement to try to enforce it. And then there are
penalties against any law enforcement officer who does not
enforce it, and----
Chairman Schumer. Are you familiar with any other statute
in Arizona, you or Senator DeConcini, where a private citizen
can sue because the individual officer was not enforcing the
law?
Mr. Gallardo. Not one. Not one, Mr. Chairman.
Mr. DeConcini. Mr. Chairman, I have not done the research,
but I served as a county attorney there. I knew of no laws at
that time--that was way back in the last century, I must say,
and I have not read every law, but I talk to police officers
all the time. I know of no other law. Perhaps there are some,
but I do not know of any.
Chairman Schumer. We could not find one. There may be one
or two, but it is certainly the exception to the rule.
Mr. DeConcini. Mr. Chairman, it is the exception if there
is.
Chairman Schumer. If there is, yes.
Mr. Pearce, you get the last word before I conclude here.
Mr. Pearce. Okay. Thank you, Mr. Chairman. I get a little
disappointed, you know, that we are the bad guys for enforcing
the law. First of all, Proposition 200 passed in 2004
overwhelmingly by the citizens of the State of Arizona. That
also has that right of action for citizens to sue their
government if they are giving out benefits to those that are
not eligible.
Chairman Schumer. What is that one, Mr. Pearce?
Mr. Pearce. Proposition 200, known as----
Chairman Schumer. Is that an immigration law?
Mr. Pearce. It deals with photo fraud, and the purpose was
to have your ID at the polls and no benefits for those in the
country illegally, and that right of action is in that bill.
Chairman Schumer. And did that allow law enforcement
explicitly to be sued? I do not think so.
Mr. Pearce. It was just the benefits. And, again, Mr.
Chairman--and I do not mean to argue with you, but I will
correct you again. Law enforcement helped write that section.
It had nothing to do with suing law enforcement. They got
qualified immunity in that bill, qualified immunity to enforce
the law. It has to do with officials who are in the policy-
setting position and agencies that set those policies.
Chairman Schumer. Okay.
Mr. Pearce. But I am a little disappointed when folks talk
about being embarrassed for the State of Arizona. Two to one
across this country, we have a national crisis, and yet
everybody wants to ignore that the cost of the damage, the
crime, and if we can go through this--and if I had the time and
Mr. Chairman would allow the time, I could give you a lot more
information. Instead, these little anecdotal things that we
pick out a victim that said, you know, because all of us are
disappointed when inappropriate action is taken on anybody.
This bill--and, again, illegal is a crime, not a race. It does
not pick out any nationality. It just so happens 90 percent of
those who violate our immigration laws come from across that
southern border or are Hispanic. You know, this law does not
pick those out. I mean, common sense, if I have got three young
kids in the middle of Sun City at three o'clock in the morning,
I do not care what color they are. They are going to get
stopped and questioned. Kids do not live in Sun City. Three
o'clock in the morning is another element. I mean, just a
little common sense.
Mr. Chairman, we have a national crisis, and yet we
continue to ignore it. There are some that run for office and
talk about building a darn fence, but never hear it again once
they are elected. I think Americans are a little tired of the
drive-by statements by politicians instead of dealing with the
issue at hand, enforce our laws, secure our border. It is not
too much to ask, Mr. Chairman.
Chairman Schumer. We have made big progress in that
direction, sir.
Let me conclude----
Mr. Pearce. We have made some, Mr. Chairman.
Chairman Schumer [continuing]. By saying this. First, let
me thank the witnesses. I am sure it did not escape notice that
none of my colleagues on the other side of the aisle came to
this hearing. That is not surprising. They are absent from this
hearing just as they have been absent from every attempt we
have made to negotiate a comprehensive solution to our
immigration problem. We need people to sit down, people on both
sides of the aisle in a bipartisan way, and solve this problem.
We have been unable to find negotiating partners. And so the
absence of people here today not only shows an unwillingness,
both in Arizona and here in Washington, of them to defend this
law or be associated with this law, but it shows an absence of
an ability--it is broader. We do not have anyone sitting down
and saying here is what we want to do to solve this immigration
problem. We get a lot of rhetoric out there on the campaign
trail, but we do not get any action, even if they would
disagree with the kind of proposal that I and my colleagues
have made to do that. And so they are not here. It is not
surprising. It has been typical in terms of being absent on the
entire immigration debate except in terms of rhetoric,
sometimes, unfortunately, very inflammatory.
With that, I am going to close this hearing and thank our
witnesses. I just have to do a little housekeeping here. The
record will remain open until Tuesday, May 1, 2012, for further
testimony and questions. I would like to thank individuals and
groups for submitting testimony for the record. Without
objection, it will be added. That includes the U.S. Conference
of Catholic Bishops, the American Immigration Council, the
Rights Working Group, and the American Civil Liberties Union. I
am asking unanimous consent these statements be inserted into
the record, and my colleagues have until May 12th to put in
statements as well.
[The information appears as a submission for the record.]
Chairman Schumer. I thank the witnesses again, and the
hearing is adjourned.
[Whereupon, at 11:49 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Hon. Dick Durbin
Prepared Statement of Ranking Member Chuck Grassley
Prepared Statement of Russell Pearce, President, BanAmnestyNow.com,
Mesa, Arizona
Prepared Statement of Dennis W. DeConcini, Partner, DeConcini,
McDonald, Yetwin & Lacy, P.C., Tucson, Arizona
Prepared Statement of Hon. Steve M. Gallardo, Arizona State Senator,
Phoenix, Arizona
Prepared Statement of Todd Landfried, Executive Director, Arizona
Employers for Immigration Reform, Phoenix, Arizona
Miscellaneous Additional Material Submitted for the Record