[Congressional Record Volume 152, Number 65 (Tuesday, May 23, 2006)]
[Senate]
[Pages S4924-S4936]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2611, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 2611) to provide for comprehensive immigration
reform and for other purposes.
Pending:
Feinstein-Harkin amendment No. 4087, to modify the
conditions under which aliens who are unlawfully present in
the United States are granted legal status.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be a period of debate for up to 60 minutes on amendment No.
4087, with the Senator from California, Mrs. Feinstein, in control of
30 minutes, the Senator from Pennsylvania, Mr. Specter, in control of
20 minutes, and the Senator from Massachusetts, Mr. Kennedy, in control
of 10 minutes.
The Senator from California is recognized.
Mrs. FEINSTEIN. I thank the President. I also want to thank the
chairman of the committee. He has been a very good chairman. I want him
to know that the only reason I offer this amendment is because when we
read the bill language of Hagel-Martinez, which has not been voted on
by this body, I believe it to be unworkable. I believe it will create
another class of illegal immigrants in this country. I believe it is
impossible to carry out the deportation requirements of the Hagel-
Martinez amendment.
Amendment No. 4087, as Modified
I send an amendment to the desk, as modified, on behalf of Senators
Harkin, Kennedy, Reid, Kerry, and myself. This is a modification of my
earlier amendment.
The ACTING PRESIDENT pro tempore. Without objection, the amendment is
so modified.
(The amendment, No. 4087, as modified, is as follows:
On page 345 strike line 10 and all that follows through
page 395, line 23, and insert the following:
Subtitle A--Earned Adjustment of Status
SEC. 601. ORANGE CARD VISA PROGRAM.
(a) Short Title.--This section may be cited as the ``Orange
Card Program''.
(b) Earned Adjustment of Status.--
(1) In general.--Chapter 5 of title II (8 U.S.C. 1255 et
seq.) is amended by inserting after section 245A the
following:
``SEC. 245B. ACCESS TO EARNED ADJUSTMENT.
``(a) Adjustment of Status.--
``(1) Principal aliens.--Subject to subsection (c)(5) and
notwithstanding any other provision of law, including section
244(h), the Secretary of Homeland Security shall adjust an
alien's status to the status of an alien lawfully admitted
for permanent residence, if the alien satisfies the following
requirements:
``(A) Application.--The alien shall file an application
establishing eligibility for adjustment of status in
accordance with the procedures established under subsection
(n) and pay the fine required under subsection (m) and any
additional amounts owed under that subsection.
``(B) Continuous physical presence.--
``(i) In general.--The alien shall establish that the
alien--
``(I) was physically present in the United States on or
before January 1, 2006;
``(II) was not legally present in the United States on or
before January 1, 2006, under any classification set forth in
section 101(a)(15); and
``(III) did not depart from the United States on or before
January 1, 2006, except for brief, casual, and innocent
departures.
``(ii) Legally present.--For purposes of this subparagraph,
an alien who has violated any conditions of the alien's visa
shall be considered not to be legally present in the United
States.
``(C) Admissible under immigration laws.--The alien shall
establish that the alien is not inadmissible under section
212(a) except for any provision of that section that is
waived under subsection (b) of this section.
``(D) Employment in the united states.--
``(i) In general.--The alien shall--
``(I) submit all documentation of the alien's employment in
the United States before January 1, 2006; and
``(II) be employed in the United States for at least 6
years, in the aggregate, after the date of the enactment of
the Orange Card Program.
[[Page S4925]]
``(ii) Exceptions.--
``(I) In general.--The employment requirement in clause (i)
shall be reduced for an individual who--
``(aa) cannot demonstrate employment based on a physical or
mental disability or as a result of pregnancy; or
``(bb) is under 18 years of age on the date of the
enactment of the Orange Card Program, by a period of time
equal to the time period beginning on such date of enactment
and ending on the date on which the individual reaches 18
years of age.
``(II) Postsecondary study.--The employment requirements in
clause (i) shall be reduced by 1 year for each year of
completed full time postsecondary study in the United States
during the relevant period.
(III) The employment requirements in clause (i) shall not
apply to an alien who is 65 years or older on the date of
enactment of this Act.
``(iii) Portability.--An alien shall not be required to
complete the employment requirements in clause (i) with the
same employer.
``(iv) Evidence of employment.--
``(I) Conclusive documents.--For purposes of satisfying the
requirements in clause (i), the alien shall submit at least 2
of the following documents for each period of employment,
which shall be considered conclusive evidence of such
employment:
``(aa) Records maintained by the Social Security
Administration.
``(bb) Records maintained by an employer, such as pay
stubs, time sheets, or employment work verification.
``(cc) Records maintained by the Internal Revenue Service.
``(dd) Records maintained by a union or day labor center.
``(ee) Records maintained by any other government agency,
such as worker compensation records, disability records, or
business licensing records.
``(II) Other documents.--An alien who is unable to submit a
document described in subclause (I) may satisfy the
requirement in clause (i) by submitting to the Secretary at
least 2 other types of reliable documents that provide
evidence of employment for each required period of
employment, including--
``(aa) bank records;
``(bb) business records;
``(cc) sworn affidavits from nonrelatives who have direct
knowledge of the alien's work, including the name, address,
and phone number of the affiant, the nature and duration of
the relationship between the affiant and the alien, and other
verification information; or
``(dd) remittance records.
``(v) Burden of proof.--An alien applying for adjustment of
status under this subsection has the burden of proving by a
preponderance of the evidence that the alien has satisfied
the employment requirements in clause (i).
``(E) Payment of income taxes.--The alien shall establish
the payment of all Federal and State income taxes owed for
employment during the period of employment required under
subparagraph (D)(i). The alien may satisfy such requirement
by establishing that--
``(i) no such tax liability exists;
``(ii) all outstanding liabilities have been met; or
``(iii) the alien has entered into an agreement for payment
of all outstanding liabilities with the Internal Revenue
Service and with the department of revenue of each State to
which taxes are owed.
``(F) Basic citizenship skills.--
``(i) In general.--Except as provided in clause (ii), the
alien shall demonstrate that the alien either--
``(I) meets the requirements of section 312(a) (relating to
a knowledge and understanding of English and the history and
Government of the United States); or
``(II) is satisfactorily pursuing a course of study,
recognized by the Secretary of Homeland Security, to achieve
such understanding of English and the history and Government
of the United States.
``(ii) Exceptions.--
``(I) Mandatory.--The requirements of clause (i) shall not
apply to any person who is unable to comply with those
requirements because of a physical or developmental
disability or mental impairment.
``(II) Discretionary.--The Secretary of Homeland Security
may waive all or part of the requirements of clause (i) in
the case of an alien who is 65 years of age or older as of
the date of the filing of the application for adjustment of
status.
``(G) Security and law enforcement clearances.--The alien
shall submit fingerprints in accordance with procedures
established by the Secretary of Homeland Security. Such
fingerprints shall be submitted to relevant Federal agencies
to be checked against existing databases for information
relating to criminal, national security, or other law
enforcement actions that would render the alien ineligible
for adjustment of status under this subsection. The relevant
Federal agencies shall work to ensure that such clearances
are completed within 90 days of the submission of
fingerprints. An appeal of a security clearance determination
by the Secretary of Homeland Security shall be processed
through the Department of Homeland Security.
``(H) Military selective service.--The alien shall
establish that if the alien is within the age period required
under the Military Selective Service Act (50 U.S.C. App. 451
et seq.) that such alien has registered under that Act.
``(I) Annual reporting requirement.--
``(i) In general.--An alien who has applied for an
adjustment of status under this section shall annually submit
to the Secretary of Homeland Security the documentation
described in clause (ii) and the fee required under
subsection (m)(3).
``(ii) Documentation.--The documentation submitted under
clause (i) shall include evidence of employment described in
subparagraph (D)(iv), proof of payment of taxes described in
subparagraph (E), and documentation of any criminal
conviction or an affidavit stating that the alien has not
been convicted of any crime.
``(iii) Termination.--The reporting requirement under this
subparagraph shall terminate on the date on which the alien
is granted the status of an alien lawfully admitted for
permanent residence.
``(J) Adjustment of status.--An alien may not adjust to
legal permanent residence status under this section until
after the earlier of--
``(i) the consideration of all applications filed under
section 201, 202, or 203 before the date of enactment of this
section; or
``(ii) 8 years after the date of enactment of this section.
``(2) Spouses and children.--
``(A) In general.--
``(i) Adjustment of status.--Notwithstanding any other
provision of law, the Secretary of Homeland Security shall,
if otherwise eligible under subparagraph (B), adjust the
status to that of a lawful permanent resident under this
section, or provide an immigrant visa to--
``(I) the spouse, or child who was under 21 years of age on
the date of enactment of the Orange Card Program, of an alien
who adjusts status or is eligible to adjust status to that of
a permanent resident under paragraph (1); or
``(II) an alien who, within 5 years preceding the date of
the enactment of the Orange Card Program, was the spouse or
child of an alien who adjusts status to that of a permanent
resident under paragraph (1), if--
``(aa) the termination of the qualifying relationship was
connected to domestic violence; or
``(bb) the spouse or child has been battered or subjected
to extreme cruelty by the spouse or parent who adjusts status
or is eligible to adjust status to that of a permanent
resident under paragraph (1).
``(ii) Application of other law.--In acting on applications
filed under this paragraph with respect to aliens who have
been battered or subjected to extreme cruelty, the Secretary
of Homeland Security shall apply the provisions of section
204(a)(1)(J) and the protections, prohibitions, and penalties
under section 384 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).
``(B) Grounds of inadmissibility not applicable.--In
establishing admissibility to the United States, the spouse
or child described in subparagraph (A) shall establish that
they are not inadmissible under section 212(a), except for
any provision of that section that is waived under subsection
(b) of this section.
``(C) Security and law enforcement clearance.--The spouse
or child, if that child is 14 years of age or older,
described in subparagraph (A) shall submit fingerprints in
accordance with procedures established by the Secretary of
Homeland Security. Such fingerprints shall be submitted to
relevant Federal agencies to be checked against existing
databases for information relating to criminal, national
security, or other law enforcement actions that would render
the alien ineligible for adjustment of status under this
subsection. The relevant Federal agencies shall work to
ensure that such clearances are completed within 90 days of
the submission of fingerprints. An appeal of a denial by the
Secretary of Homeland Security shall be processed through the
Department of Homeland Security.
``(3) Nonapplicability of numerical limitations.--When an
alien is granted lawful permanent resident status under this
subsection, the number of immigrant visas authorized to be
issued under any provision of this Act shall not be reduced.
``(b) Grounds of Inadmissibility.--
``(1) Applicable provisions.--In the determination of an
alien's admissibility under paragraphs (1)(C) and (2) of
subsection (a), the following provisions of section 212(a)
shall apply and may not be waived by the Secretary of
Homeland Security under paragraph (3)(A):
``(A) Paragraph (2) (relating to criminals).
``(B) Paragraph (3) (relating to security and related
grounds).
``(C) Subparagraphs (A) and (C) of paragraph (10) (relating
to polygamists and child abductors).
``(2) Grounds of inadmissibility not applicable.--The
provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F),
(6)(G), (7), (9), and (10)(B) of section 212(a) shall not
apply to an alien who is applying for adjustment of status
under subsection (a).
``(3) Waiver of other grounds.--
``(A) In general.--Except as provided in paragraph (1), the
Secretary of Homeland Security may waive any provision of
section 212(a) in the case of individual aliens for
humanitarian purposes, to ensure family unity, or when it is
otherwise in the public interest.
[[Page S4926]]
``(B) Construction.--Nothing in this paragraph shall be
construed as affecting the authority of the Secretary of
Homeland Security, other than under this subparagraph, to
waive the provisions of section 212(a).
``(4) Special rule for determination of public charge.--An
alien is not ineligible for adjustment of status under
subsection (a) by reason of a ground of inadmissibility under
section 212(a)(4) if the alien establishes a history of
employment in the United States evidencing self-support
without public cash assistance.
``(5) Special rule for individuals where there is no
commercial purpose.--An alien is not ineligible for
adjustment of status under subsection (a) by reason of a
ground of inadmissibility under section 212(a)(6)(E) if the
alien establishes that the action referred to in that section
was taken for humanitarian purposes, to ensure family unity,
or was otherwise in the public interest.
``(6) Ineligibility.--
``(A) In general.--An alien is ineligible for adjustment to
lawful permanent resident status under this section if--
``(i) the alien has been ordered removed from the United
States--
``(I) for overstaying the period of authorized admission
under section 217;
``(II) under section 235 or 238; or
``(III) pursuant to a final order of removal under section
240;
``(ii) the alien failed to depart the United States during
the period of a voluntary departure order issued under
section 240B;
``(iii) the alien is subject to section 241(a)(5);
``(iv) the Secretary of Homeland Security determines that--
``(I) the alien, having been convicted by a final judgment
of a serious crime, constitutes a danger to the community of
the United States;
``(II) there are reasonable grounds for believing that the
alien has committed a serious crime outside the United States
prior to the arrival of the alien in the United States; or
``(III) there are reasonable grounds for regarding the
alien as a danger to the security of the United States; or
``(v) the alien has been convicted of a felony or 3 or more
misdemeanors.
``(B) Exception.--Notwithstanding subparagraph (A), an
alien who has not been ordered removed from the United States
shall remain eligible for adjustment to lawful permanent
resident status under this section if the alien's
ineligibility under subparagraph (A) is solely related to the
alien's--
``(i) entry into the United States without inspection;
``(ii) remaining in the United States beyond the period of
authorized admission; or
``(iii) failure to maintain legal status while in the
United States.
``(C) Waiver.--The Secretary may, in the Secretary's sole
and unreviewable discretion, waive the application of
subparagraph (A) if the alien--
``(i) was ordered removed on the basis that the alien--
``(I) entered without inspection;
``(II) failed to maintain status; or
``(III) was ordered removed under 212(a)(6)(C)(i) before
April 7, 2006; and
``(ii) demonstrates that--
``(I) the alien did not receive notice of removal
proceedings in accordance with paragraph (1) or (2) of
section 239(a);
``(II) the alien's failure to appear was due to exceptional
circumstances beyond the control of the alien; or
``(III) requiring the alien to depart from the United
States would result in extreme hardship to the alien's
spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
``(c) Treatment of Applicants.--
``(1) In general.--An alien who establishes the
requirements under subsection (a)(1)(B) for including a
spouse or child of such alien--
``(A) shall be granted employment authorization upon the
filing of an application fee of $1,000 pending final
adjudication of the alien's application for adjustment of
status;
``(B) shall be granted permission to travel abroad pursuant
to regulation pending final adjudication of the alien's
application for adjustment of status;
``(C) shall not be detained, determined inadmissible or
deportable, or removed pending final adjudication of the
alien's application for adjustment of status, unless the
alien commits an act which renders the alien ineligible for
such adjustment of status; and
``(D) shall not be considered an unauthorized alien as
defined in section 274A(h)(3) until such time as employment
authorization under subparagraph (A) is denied.
``(2) Document of authorization.--The Secretary of Homeland
Security shall provide each alien described in paragraph (1)
with a counterfeit-resistant orange card that--
``(A) meets all current requirements established by the
Secretary of Homeland Security for travel documents,
including the requirements under section 403 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1324a note);
``(B) reflects the benefits and status set forth in
paragraph (1); and
``(C) contains a unique number that authorizes card holders
who have resided longer in the United States to receive the
status of lawful permanent resident before similarly situated
card holders whose length of residence in the United States
is shorter.
``(3) Security and law enforcement clearance.--Before an
alien is granted employment authorization or permission to
travel under paragraph (1), the alien shall be required to
undergo a name check against existing databases for
information relating to criminal, national security, or other
law enforcement actions. The relevant Federal agencies shall
work to ensure that such name checks are completed not later
than 90 days after the date on which the name check is
requested.
``(4) Termination of proceedings.--An alien in removal
proceedings who establishes prima facie eligibility for
adjustment of status under subsection (a) shall be entitled
to termination of the proceedings pending the outcome of the
alien's application, unless the removal proceedings are based
on criminal or national security grounds.
``(5) Adjustment to permanent residence.--
``(A) In general.--The Secretary of Homeland Security shall
adjust the status of an alien who satisfies all the
requirements under subsection (a) to that of an alien
lawfully admitted for permanent residence.
``(B) Nonapplicability of numerical limitations.--When an
alien is granted lawful permanent resident status under this
section, the number of immigrant visas authorized to be
issued under any provision of this Act shall not be reduced.
``(d) Apprehension Before Application Period.--The
Secretary of Homeland Security shall provide that in the case
of an alien who is apprehended before the beginning of the
application period described in subsection (a) and who can
establish prima facie eligibility to have the alien's status
adjusted under that subsection (but for the fact that the
alien may not apply for such adjustment until the beginning
of such period), until the alien has had the opportunity
during the first 180 days of the application period to
complete the filing of an application for adjustment, the
alien may not be removed from the United States unless the
alien is removed on the basis that the alien has engaged in
criminal conduct or is a threat to the national security of
the United States.
``(e) Confidentiality of Information.--
``(1) In general.--Except as otherwise provided in this
section, no Federal agency or bureau, nor any officer or
employee of such agency or bureau, may--
``(A) use the information furnished by the applicant
pursuant to an application filed under paragraph (1) or (2)
of subsection (a) for any purpose other than to make a
determination on the application;
``(B) make any publication through which the information
furnished by any particular applicant can be identified; or
``(C) permit anyone other than the sworn officers and
employees of such agency, bureau, or approved entity, as
approved by the Secretary of Homeland Security, to examine
individual applications that have been filed.
``(2) Required disclosures.--The Secretary of Homeland
Security and the Secretary of State shall provide the
information furnished pursuant to an application filed under
paragraph (1) or (2) of subsection (a), and any other
information derived from such furnished information, to a
duly recognized law enforcement entity in connection with a
criminal investigation or prosecution or a national security
investigation or prosecution, in each instance about an
individual suspect or group of suspects, when such
information is requested in writing by such entity.
``(3) Criminal penalty.--Any person who knowingly uses,
publishes, or permits information to be examined in violation
of this subsection shall be fined not more than $10,000.
``(f) Penalties for False Statements in Applications.--
``(1) Criminal penalty.--
``(A) Violation.--It shall be unlawful for any person to--
``(i) file or assist in filing an application for
adjustment of status under this section and knowingly and
willfully falsify, conceal, or cover up a material fact or
make any false, fictitious, or fraudulent statements or
representations, or make or use any false writing or document
knowing the same to contain any false, fictitious, or
fraudulent statement or entry; or
``(ii) create or supply a false writing or document for use
in making such an application.
``(B) Penalty.--Any person who violates subparagraph (A)
shall be fined in accordance with title 18, United States
Code, or imprisoned not more than 5 years, or both.
``(2) Inadmissibility.--An alien who is convicted of a
crime under paragraph (1) shall be considered to be
inadmissible to the United States.
``(3) Exception.--Notwithstanding paragraphs (1) and (2),
any alien or other entity (including an employer or union)
that submits an employment record that contains incorrect
data that the alien used in order to obtain such employment,
shall not have violated this subsection.
``(g) Ineligibility for Public Benefits.--For purposes of
section 403 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613), an
alien whose status has been adjusted in accordance with
subsection (a) shall not be eligible for any Federal means-
tested public benefit unless the alien meets the alien
eligibility criteria for such benefit under title IV of such
Act (8 U.S.C. 1601 et seq.).
``(h) Relationships of Application to Certain Orders.--
[[Page S4927]]
``(1) In general.--An alien who is present in the United
States and has been ordered excluded, deported, removed, or
to depart voluntarily from the United States or is subject to
reinstatement of removal under any provision of this Act may,
notwithstanding such order, apply for adjustment of status
under subsection (a). Such an alien shall not be required, as
a condition of submitting or granting such application, to
file a separate motion to reopen, reconsider, or vacate the
exclusion, deportation, removal or voluntary departure order.
If the Secretary of Homeland Security grants the application,
the order shall be canceled. If the Secretary of Homeland
Security renders a final administrative decision to deny the
application, such order shall be effective and enforceable.
Nothing in this paragraph shall affect the review or stay of
removal under subsection (j).
``(2) Stay of removal.--The filing of an application
described in paragraph (1) shall stay the removal or
detainment of the alien pending final adjudication of the
application, unless the removal or detainment of the alien is
based on criminal or national security grounds.
``(i) Application of Other Provisions.--Nothing in this
section shall preclude an alien who may be eligible to be
granted adjustment of status under subsection (a) from
seeking such status under any other provision of law for
which the alien may be eligible.
``(j) Administrative and Judicial Review.--
``(1) In general.--Except as provided in this subsection,
there shall be no administrative or judicial review of a
determination respecting an application for adjustment of
status under subsection (a).
``(2) Administrative review.--
``(A) Single level of administrative appellate review.--The
Secretary of Homeland Security shall establish an appellate
authority to provide for a single level of administrative
appellate review of a determination respecting an application
for adjustment of status under subsection (a).
``(B) Standard for review.--Administrative appellate review
referred to in subparagraph (A) shall be based solely upon
the administrative record established at the time of the
determination on the application and upon the presentation of
additional or newly discovered evidence during the time of
the pending appeal.
``(3) Judicial review.--
``(A) Direct review.--A person whose application for
adjustment of status under subsection (a) is denied after
administrative appellate review under paragraph (2) may seek
review of such denial, in accordance with chapter 7 of title
5, United States Code, before the United States district
court for the district in which the person resides.
``(B) Review after removal proceedings.--There shall be
judicial review in the Federal courts of appeal of the denial
of an application for adjustment of status under subsection
(a) in conjunction with judicial review of an order of
removal, deportation, or exclusion, but only if the validity
of the denial has not been upheld in a prior judicial
proceeding under subparagraph (A). Notwithstanding any other
provision of law, the standard for review of such a denial
shall be governed by subparagraph (C).
``(C) Standard for judicial review.--Judicial review of a
denial of an application under this section shall be based
solely upon the administrative record established at the time
of the review. The findings of fact and other determinations
contained in the record shall be conclusive unless the
applicant can establish abuse of discretion or that the
findings are directly contrary to clear and convincing facts
contained in the record, considered as a whole.
``(4) Stay of removal.--Aliens seeking administrative or
judicial review under this subsection shall not be removed
from the United States until a final decision is rendered
establishing ineligibility under this section, unless such
removal is based on criminal or national security grounds.
``(k) Dissemination of Information on Adjustment Program.--
During the 12 months following the issuance of final
regulations in accordance with subsection (o), the Secretary
of Homeland Security, in cooperation with approved entities,
approved by the Secretary of Homeland Security, shall broadly
disseminate information respecting adjustment of status under
this section and the requirements to be satisfied to obtain
such status. The Secretary of Homeland Security shall also
disseminate information to employers and labor unions to
advise them of the rights and protections available to them
and to workers who file applications under this section. Such
information shall be broadly disseminated, in the languages
spoken by the top 15 source countries of the aliens who would
qualify for adjustment of status under this section,
including to television, radio, and print media such aliens
would have access to.
``(l) Employer Protections.--
``(1) Immigration status of alien.--Employers of aliens
applying for adjustment of status under this section shall
not be subject to civil and criminal tax liability relating
directly to the employment of such alien.
``(2) Provision of employment records.--Employers that
provide unauthorized aliens with copies of employment records
or other evidence of employment pursuant to an application
for adjustment of status under this section or any other
application or petition pursuant to other provisions of the
immigration laws, shall not be subject to civil and criminal
liability pursuant to section 274A for employing such
unauthorized aliens.
``(3) Applicability of other law.--Nothing in this
subsection shall be used to shield an employer from liability
pursuant to section 274B or any other labor and employment
law provisions.
``(m) Authorization of Appropriations; Fines; Fees.--
``(1) Authorization of appropriations.--There are
authorized to be appropriated to the Secretary of Homeland
Security $100,000,000 for fiscal year 2007, which shall
remain available until expended, to carry out this section.
``(2) Fine.--An alien who files an application for
adjustment of status to lawful permanent residence under this
section (except for an alien under 18 years of age) shall pay
a fine equal to $1,000.
``(3) Fee.--Annual processing fee of $50.
``(4) Immigration examinations fee account.--Of the amounts
collected each fiscal year under paragraphs (2) and (3), the
Secretary of Homeland Security shall deposit--
``(A) $10,000,000 into the General Fund of the Treasury,
until an amount equal to the amount appropriated pursuant to
paragraph (1) has been deposited under this subparagraph; and
``(B) the remaining amount into the Immigration
Examinations Fee Account established under section 286(m).
``(5) Use of amounts collected.--Of the amounts deposited
into the Immigration Examinations Fee Account under paragraph
(4)(B)--
``(A) such amounts as may be necessary shall be available,
without fiscal year limitation, to--
``(i) the Secretary of Homeland Security to implement this
section and to process applications received under this
section; and
``(ii) the Secretary of Homeland Security and the Secretary
of State for administrative and other expenses incurred in
connection with the review of applications filed by immediate
relatives of aliens applying for adjustment of status under
this section; and
``(B) any amounts not expended under subparagraph (A) shall
be available to the Secretary of Homeland Security to improve
border security.
``(n) Rulemaking.--
``(1) In general.--Not later than 120 days after the date
of the enactment of the Orange Card Program, the Secretary of
Homeland Security shall issue regulations to implement this
section.
``(2) Application processing procedure.--The regulations
issued under paragraph (1) shall include a procedure for the
orderly, efficient, and effective processing of applications
received under this section. Such procedure shall require the
Secretary of Homeland Security to--
``(A) permit applications under this section to be filed
electronically, to the extent possible; and
``(B) allow for initial registration with fingerprints of
applicants to be followed by a personal appointment and
completed application.''.
(2) Table of contents.--The table of contents is amended by
inserting after the item relating to section 245A the
following:
``Sec. 245B. Access to earned adjustment.''.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to have
printed in the Record a list of organizations across the country that
support this amendment.
There being no objection, the material was ordered to be printed in
the Record, as follows:
ACORN
Acercamiento Hispano de Carolina del Sur
The American-Arab Anti-Discrimination Committee
American Friends Service Committee, Miami
Asian American Justice Center
Asian Americans for Equality
Association of Mexicans in North Carolina (AMEXCAN)
CASA of Maryland, Inc.
Cabrini Immigrant Services, New York City
Center for Community Change
The Center for Justice, Peace and the Environment
Center for Economic Progress
Center for Social Advocacy
Central American Resource Center/CARECEN--L.A.
Centro Campesino Inc.
Church World Service Immigration and Refugee Program
Coalition for Asian American Children and Families (CACF)
Coalition for Humane Immigrant Rights of Los Angeles (CHlRLA)
Coalition for New South Carolinians
Committee for Social Justice in Colombia
Community Wellness Partnership of Pomona
Day without an Immigrant Coalition
Dignity Through Dialogue and Education
Dolores Mission Church, Los Angeles
Eastern Pennsylvania Conference of the United Methodist
Church
El Centro Hispanoamericano
El Centro, Inc.
Empire Justice Center
En Camino, Diocese of Toledo
FIRM (Fair Immigration Reform Movement)
Family & Children's Service
Fann Ayisyen Nan Miyami/Haitian Women of Miami, Inc.
The Farmworker Association of Florida Inc.
Farmworkers Association of Florida
[[Page S4928]]
Filipno American Human Services, Inc. (FAHSI)
Florida Immigrant Advocacy Center
Florida Immigrant Coalition
Friends and Neighbors of Immigrants
Fuerza Latina
Fundacion Salvadorena de la Florida
The Gamaliel Foundation
Georgia Association of Latino Elected Officials (GALEO)
Guatemalan Unity Information Agency
Haiti Women of Miami
HIAS and Council Migration Service of Philadelphia
Heartland Alliance
Hebrew Immigrant Aid Society (HIAS)
Hispanic American Association
Hispanic Coalition Corp.
Hispanic Directors Association of New Jersey
Hispanic Federation
Hispanic National Bar Association
Hispanic Women's Organization of Arkansas
Holy Redeemer Lutheran Church, San Jose, CA
Idaho Community Action Network
Illinois Coalition for Immigration and Refugee Rights
Immigration Equality
Immigrant Legal Resource Center
Interfaith Coalition for Immigrant Rights, California
Interfaith Coalition for Worker Justice of South Central
Wisconsin (ICWJ)
The Interfaith Council for Religion, Race, Economic and
Social Justice, San Jose, CA
Intl. Association of Bridge, Structural, Ornamental and
Reinforcing Iron Workers, Miami
International Immigrants Foundation
International Institute of Rhode Island
International Social Work Organization-University of Maryland
School of Social Work
Institute of the Sisters of Mercy of the Americas
Irish American Unity Conference
Irish Apostolate USA
Irish Immigration Center
Irish Immigration Pastoral Center, San Francisco
Irish Lobby for Immigration Reform
ISAIAH, Twin Cities and St. Cloud Regions, MN
Kentucky Coalition for Comprehensive Immigration Reform
(KCCIR)
Korean American Resource and Cultural Center, Chicago, IL
Korean Resource Center, Los Angeles, CA
JUNTOS
Jesuit Conference
Jewish Council For Public Affairs
Joseph Law Firm, PC
LULAC
Labor Council for Latin American Advancement, LCLAA
Lahore Foundation, Inc.
Latin American Immigrants Federation Corp.
Latin American Integration Center, New York City
Latino and Latina Roundtable of the San Gabriel Valley and
Pomona Valley
Latino Leadership, Inc.
Latinos en Accion de CCI, a chapter of Iowa Citizens For
Community Improvement
Law Office of Kimberly Salinas
League of Rural Voters
Lutheran Immigration and Refugee Service (LIRS)
Lutheran Office of Governmental Ministry in New Jersey
MALDEF
Make the Road by Walking
Mary's Center for Maternal and Child Care
Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA)
Medical Mission Sisters' Alliance for Justice
Michigan Organizing Project
Migrant Legal Action Program
Minnesota Advocates for Human Rights
Minnesota Immigrant Freedom Network
The Multi-Cultural Alliance of Prince George's County Inc.
Nashville Area Hispanic Chamber of Commerce
National Advocacy Center of the Sisters of the Good Shepherd
National Association of Latino Elected and Appointed
Officials (NALEO) Educational Fund
National Capital Immigration Coalition (NCIC)
National Council of Jewish Women
National Council of La Raza
National Employment Law Project
National Farm Worker Ministry (NFWM)
National Immigration Forum
National Korean American Service & Education Consortium, Los
Angeles, CA
Nationalities Service Center
Nebraska Appleseed Center for Law in the Public Interest
Neighborhood House at The Paul & Sheila Wellstone Center for
Community Building
Neighbors Helping Neighbors
NETWORK--A National Catholic Social Justice Lobby
New York Immigration Coalition
Northwest Federation of Community Organizations
ONE Lowell, Lowell, MA
Office for Social Justice, Catholic Archdiocese of St. Paul/
Minneapolis
Organization of Chinese Americans (OCA)
Pennsylvania ACORN
Pennsylvania Immigration and Citizenship Coalition (PICC)
People For the American Way (PFAW)
Pilsen Neighbors Community Council
Pineros y Campesinos Unidos del Noroeste (PCUN)
Presbyterian Church (USA), Washington Office
Project HOPE
Project for Pride in Living
Proyecto Pastoral at Dolores Mission
Rockland Immigration Coalition
Rural Coalition/Coalicion Rural
S & G Enterprises
Service Employees International Union (SEIU)
SEIU Florida Healthcare Union
SEIU Local 32BJ
Seattle Irish Immigrant Support Group
Society of Jesus, New York Province
South Asian American Leaders of Tomorrow
Spanish Community of Wallingford, Inc.
Tennessee Immigrant & Refugee Rights Coalition (TIRRC)
UJA-Federation of New York
UN DIA (United Dubuque Immigrant Alliance)
UNITE HERE!
U.S. Committee for Refugees and Immigrants (USCRI)
Unite for Dignity for Immigrant Workers Rights, Inc.
United Church of Christ, Justice and Witness Ministries
United Farm Workers, Miami
United Food and Commercial Workers
United Methodist Church, General Board of Church and Society
United Methodist Hispanic Ministries of North Alabama
Virginia Justice Center for Farm and Immigrant Workers
Washington Citizen Action
We Count!
Westchester Hispanic Coalition
Westside Community Action Network Center (Westside CAN
Center)
The Workmen's Circle/Arbeter Ring
YKASEC--Empowering the Korean American Community, New York,
NY
Yee & Durkin, LLP
Mrs. FEINSTEIN. Mr. President, let me state why I think the Hagel-
Martinez compromise is not workable. The Hagel-Martinez compromise
essentially creates three tiers of people in this country in
undocumented or illegal status. The first is 6.7 million who have been
here more than 5 years; the second is 1.6 million who have been here
less than 2 years; and the third is 2.8 million who have been here from
2 to 5 years. People here less than 2 years are subject to immediate
deportation. Someone has to find them, go into their workplace or their
homes, pick them up, and deport them. Then one has to consider the
likelihood that in about 3 days, which is often the case in California,
they will come back to their families and their job.
The second is the 2.8 million who must leave, touch back, get in a
guest worker program or some other visa program, come back, be in this
country, and then, after a period of time, get an employer to sponsor
them for a green card or leave. They have a kind of mandatory
departure. The guest worker program they would be eligible for is the
H-2C program, which we reduced in size from 325,000 to 200,000 in an
earlier amendment. The cap of the program is removed for them.
Therefore, what is created for this group is a 3 million-person guest
worker program, but they cannot earn a path to legalization unless they
have an employer who will petition for them. They are limited in the
time they can stay in the country, and they must return.
My sense, based on the reality of the largest immigration State in
the Union, is that these two tiers in Hagel-Martinez simply will not
work. We will have large-scale fraud. The people here slightly less
than 2 years will present fraudulent documents to show they have been
here for at least 2 years. That is what happens now. There is a wide
market in fraudulent documents for the undocumented. And those here
less than 5 years will shortly realize that when they have to go back
they face a precarious situation of whether they can come back legally.
If they can't come back legally, I hazard a guess they will come back
and find a way to come back illegally. That is a major problem.
What we have tried to do is create a program, based on McCain-
Kennedy, and to an extent on Hagel-Martinez, saying let's be realistic,
let's understand what the situation is, that there is no way it is good
to create another illegal class of up to 4.4 million people. It does
not make sense to spend the time trying to seek out people living
clandestinely.
It is much better to create the process for earned legalization which
has some meaning and substance, and tests that individuals must pass.
So we have created a three-step test for something we would call an
orange card. That orange card is like this chart. I picked a
[[Page S4929]]
color that had no political connotation. This is a biometric card. It
has the personal identifiers. It has the photo. It has the
fingerprints. It has a number. Once someone has the orange card, that
number, essentially, places them in a line. The line would begin with
those people here the longest. They have the lowest numbers. Therefore,
when the current green card line of 3.3 million people is expunged--
estimated to take 6 to 11 years--the people here the longest in the
undocumented status are the first to receive their green card.
In the meantime, this would be the identifier. It is biometric. It
enables an individual to move in and out of the country, and the
individual reports electronically every year with their work history.
They will pay a $50 processing fee. They will pay a total $2,000 fine
by the time they reach green card status. They will show they are
trying to learn English. They will present their work history. To me,
it makes better sense because it is able to be managed.
The Hagel-Martinez amendment is not able to be managed
electronically. Therefore, we have 4.4 million people, plus the
remainder of the 10 to 12 million people that you have to handle. It is
extraordinarily complicated and difficult to do that.
The system was created with good intentions, but I don't believe it
is workable. I believe it is subject to fraud. I believe the most
difficult part of it is the guest worker part for those who have been
here 2 to 5 years. Under Hagel-Martinez, if you are here for 4 years
and 9 months, you are 3 months shy of earning legalization. These 3
months cost you the ability to get on a clear path to legalization.
With those stakes and no formal documentation that proves when you
cross the border, it is only logical to assume that people are going to
try to falsify dates in order to qualify for the higher tier. This
becomes the bureaucratic nightmare.
Then there is the problem for the 2-to 5-year person, of returning to
their own country, getting into a legal program and coming back. I
pointed out this makes the guest worker program 3 million people
because the 200,000 cap is waived, and therefore the 2.8 million come
into that program. That is way too many guest workers for any one time.
Then there is the mandatory departure part of the guest worker
program, which essentially says an individual, once in the country, can
only be here for 6 years and then must return to their own country
unless an employer will sponsor them for a green card. This in itself
might appear to be a good thing, but I want to spend a minute on it.
You are dependent on your employer for your legal status after that
point. This is a huge burden for an employer to bear. It also means
that for some employers that may not be good employers, they have a
method to exploit an individual by threatening that, unless they do
certain things, they will not recommend them for the earned
legalization program and for their green card.
We know exploitation does happen. I believe the best step is clearly
to put forward a process for everyone in this country, a process that
allows you to electronically submit your data, fingerprints, photo, and
work history. That is then verified. You then come in. If the
verification of your criminal history is adequate, if you pay the fine,
and if you are willing to sign up for the orange card, then you receive
it. Therefore, you have your biometric identifier, and you can be
tracked, if necessary. You are free to leave the country and come back.
It is a much sounder path to legalization.
I hope this will be the program that eventually is accepted.
I now yield time to the Senator from Iowa, my distinguished
colleague, Mr. Harkin. I believe he has asked for 5 minutes, or such
time as he may consume.
Mr. HARKIN. Up to 10 minutes.
Mrs. FEINSTEIN. I yield up to 10 minutes to the Senator from Iowa.
Mr. HARKIN. I commend and compliment my distinguished colleague from
California for presenting this amendment.
I wonder if I might engage in a little colloquy with the author of
this amendment. I am proud to join her as a cosponsor because this is
the way we have to go.
I was interested in the pie chart that showed the 4.4 million, if I
added it correctly, the people here less than 2 years and those here 2
years to 5 years. All of those people have to leave the country?
Mrs. FEINSTEIN. Correct.
Mr. HARKIN. Under Hagel-Martinez?
Mrs. FEINSTEIN. Correct.
Mr. HARKIN. Some will leave and can't come back and some will
petition to come back?
Mrs. FEINSTEIN. That is correct.
Mr. HARKIN. I ask my friend, how are they going to deal with
families? Many of these people who have been here 2 to 5 years, maybe
some less than 2 years, may have gotten married, maybe they brought
their spouse along with them, and there are children. I have come
across some myself. What will happen to these children who have been
born here who are American citizens?
Mrs. FEINSTEIN. That is exactly the point. It is a theoretical plan.
For those who live in big immigration States, who live this problem
daily, who see the people and their families--many have bought homes,
pay taxes, their children are born here and go to school here--it
creates a dynamic which puts the Federal Government again in the place
of having to find and deport 1.6 million people; and then if the 2.8
million don't follow the mandatory departure section of the program,
they are subject to deportation.
Mr. HARKIN. If I could pursue that a minute longer, again,
contemplating the breakup of families, I ask my friend from California,
wouldn't that also then make it even more difficult, harder or less
likely that these people would come forward. If they know their
families may be split up or they might have to leave their children
behind and in the care of someone else, why would they come forward?
Mrs. FEINSTEIN. The Senator is exactly right. The dynamic to add to
that is, you create a work differential because these people will
continue to be clandestine, embedded in the cultures of our country,
and find ways to work, and employers, as they have in the past, will
hire them. Then we will be faced with carrying out a program that has
never worked and that is employer-sanctioned.
Mr. HARKIN. I thank my colleague from California for offering this
amendment.
Quite frankly, the amendment offered by Senator Feinstein is the only
way I see that we can get out of the mess we are in, so to speak, with
all of the undocumented people here, in a way that is pro-family, pro-
worker, pro-American, pro-national security.
The amendment offered by the Senator from California meets all of
those requirements. It will cost a heck of a lot less, just in terms of
dollars.
While I respect the efforts by Senators Hagel and Martinez and others
to craft some sort of compromise, the fact is the Hagel-Martinez bill
will be difficult, costly to implement, will tend to separate families
and will not be in the best interests of our country.
Quite frankly, as the Senator from California just pointed out, we do
not even know if it is workable. How are you going to find these
people? As the Senator so aptly pointed out, people who have been here
just shy of 2 years, by a month, aren't they going to find some
documentation, forging rent receipts, and things like that, to make it
seem as though they have been here at least 2 years? And those who have
been here 3 to 5 years, won't the same thing happen there also?
The Hagel-Martinez compromise is totally unworkable. By contrast, the
approach taken by Senator Feinstein to create a new kind of an orange
card--because this is a unique group of people--this orange card is
realistic, and it is enforceable, and it is fair. It would require
undocumented immigrants, as the Senator said, to register immediately
with the Department of Homeland Security. Once they have passed a
criminal and national security background check, they could apply for
an orange card.
As the Senator said, they would have to pay a $2,000 fine, any back
taxes owed, learn English and American civics, and pass extensive
criminal and security background checks. Then, after working for at
least 6 years, orange card holders could apply for legal permanent
residence, but, again, as the
[[Page S4930]]
Senator pointed out, they would have to get in back of all the green
card holders who are existent right now. So, again, this is a tough
approach, but it is workable. It will work. It is fair. And, as I said,
it will cost a lot less money and a lot less manpower to implement.
I think, as the Senator from California said, we just have to deal
with reality, what is real. Twelve million undocumented immigrants,
many who have lived here for many years, have children, family members
who are U.S. citizens. They are working. They are contributing to
society. They may be undocumented. They may be living in the shadows.
But, make no mistake about it, they are de facto members of the
American economy and the American society. They are integrated into the
fabric of our national life. They are filling jobs that in many cases
would otherwise go unfilled.
In essence, they are a part of our American family. And they are not
going away. In fact, we would face huge problems if they did. Just last
week, I say to my friend from California, a delegation from the
Marshalltown, IA, Chamber of Commerce was in town. Several of them
pointed out that immigrants play an indispensable role in the
Marshalltown economy. As one put it: If you rounded up and kicked out
all the immigrants, our city's economy would come to a screeching halt.
I say to my friend from California, I was in Denison, IA, on Friday.
There is a Job Corps center there. It is a small-town community in
western Iowa. They have a couple meatpacking plants there. So we have a
lot of Latinos who come in from Mexico, El Salvador, Honduras,
Guatemala, places like that. The mayor took me aside and he said: I
want to talk to you about immigration. I didn't know which side he was
coming from. He said: I just wanted to let you know how important it is
to Denison that you resolve this in a fair and equitable manner. He
said: We have people here who have bought homes that were abandoned.
People have left town because the town was kind of dying out. They
bought these homes. They fixed them up.
Then he told me something very interesting. He said: A lot of Latinos
have taken over small businesses on Main Street. They are operating
these small businesses that were going out of business. He said: If you
want an answer to Wal-Mart, here is your answer to Wal-Mart. He said:
They are actually running businesses on Main Street in Denison. He
said: I know for a fact that many of them are undocumented aliens. He
said: We cannot afford to lose them.
So it is not just in the big cities, I say to my friend--Los Angeles
and San Francisco--but in the small towns and small communities of
rural Iowa that would be drastically affected by the Hagel-Martinez so-
called compromise.
Most of these new immigrants have found work, but they have not found
freedom. This spring, at United Trinity Methodist Church in Des Moines,
IA, I met with a group of new immigrants, and I asked how many of them
were undocumented. I looked around. They didn't know whether to raise
their hand, and finally they decided, OK, they would. I would say
probably a third of them were undocumented. They are living in the
shadows. They live in fear. Many pay taxes. They make Social Security
payments, but they receive nothing in return.
They want to become loyal, contributing American citizens, to pursue
the American dream. But, instead, they are living an American nightmare
of anxiety and exclusion and exploitation. One young girl there was 18
years old, just graduating from high school, who wants to go on to
college. They have no money. Her folks work. They have a modest income.
We know what college tuitions are like. She came here as a 3-year-old
when her folks fled the strife in El Salvador. She is now 18. She is
undocumented. She has no papers. She cannot get any loans to go to
college. She cannot get any college aid or anything else to help her
through. She just wants to be a good American citizen. What about her?
What are we going to do about people like that?
So it is time to find a constructive and positive way to bring these
people out of the shadows and into the sunshine. The Feinstein
amendment does it. It establishes a legal framework, where people can
learn English. They have to learn English. They have to pass security
background checks, pay the fines and penalties, and can earn the right
to eventually become U.S. citizens.
The ACTING PRESIDENT pro tempore. The Senator has used 10 minutes.
Mrs. FEINSTEIN. Mr. President, I yield 2 additional minutes to the
Senator.
Mr. HARKIN. I thank my friend from California.
Again, the orange card program will increase participation by
decreasing fear. More people will come forward because fewer families
will be separated. They will become full participants. It is pro-
family, pro-work, pro-American, pro-national security.
Let me close by saying one personal thing. My mother came to this
country as an immigrant. I have the documentation when she came to this
country. Was she legal? Well, I don't know. She came on a boat with a
lot of other people--steerage class. They landed in Boston. They could
not get into New York because of a storm. They landed in Boston. She
had $7 in her pocket and a one-way train ticket to Des Moines, IA. Yet
she became a fully contributing member of our American community. Later
on she became a citizen.
So when I see our new immigrants, and I look into their face, I see
the face of my mother. Why do we have an immigration problem in
America? Because people want to come here. They want to work. They love
America. They love our freedoms. They love our society and the
opportunities that it presents.
This is not the time to go to some convoluted thing such as the
Hagel-Martinez amendment, which is going to make the mess even messier.
It is going to make it even worse. Let's clear it up once and for all,
in a fair and equitable manner. And the only way to do that, I submit,
is with the Feinstein amendment.
I thank the Senator from California for coming up with this
amendment. I am proud to be her cosponsor.
Mrs. FEINSTEIN. Mr. President, how much time do I have remaining?
The ACTING PRESIDENT pro tempore. The Senator has 6\1/2\ minutes
remaining.
Mrs. FEINSTEIN. Mr. President, I would like to reserve the remainder
of my time. But I would like to also thank the Senator from Iowa. I
think he showed, particularly speaking from the heartland of our
country--a much smaller State than California--how much a local economy
depends on this workforce. I think that is really important to
understand.
I remember speaking--and I would like the Senator to know this--with
Doris Meissner. She was the head of the U.S. Immigration and
Naturalization Service, and I think a very good commissioner. She said:
Whatever you do, make it simple. Make it enforceable. That is the key
where we go astray with this because you cannot enforce it, basically.
Good luck finding all of these people subject to immediate deportation.
It is impossible. You cannot deport 1.6 million people. And then to
expect the other 2.8 million are going to go home and touchback within
3 years is an unrealistic expectation.
So I hope somehow people will actually read the bill and understand
the devil is in details of the language as to whether it can be carried
out. I think the Senator from Iowa said it very eloquently, and I thank
him for that.
I reserve the remainder of my time.
Mr. President, I ask unanimous consent that the time begin to run on
the other side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. Mr. President, may I be clear as to what I just asked
unanimous consent for: that the Presiding Officer allows the time
against the amendment to run, and I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. I thank the Chair. I appreciate it.
Mrs. BOXER. Mr. President, currently, 10 to 12 million workers are in
this country illegally living in the shadows. Of those, approximately
24 percent or 2.5 to 3 million undocumented immigrants are living in
California.
Many of these people are longtime residents, hard workers, and with
[[Page S4931]]
American-born children. They are the parents of children in your
school. They are members of your community whom you know and respect.
Any comprehensive immigration reform bill must address the plight of
undocumented workers currently in the country. Unfortunately, the
current provision in the bill is not rational and could leave millions
of individuals without relief and forced to hide.
Under the three-tier process created by the Hagel-Martinez
compromise, undocumented immigrants here less than 2 years are subject
to deportation, and those here from 2 to 5 years must return to their
country and seek reentry under a guest/worker program.
It is estimated that these tiers would apply to nearly 5 million
people--that means approximately a million residents of California
would either face voluntary departure or deportation.
Families would be broken apart and industries disrupted as workers
are forced to leave or go into hiding. California cannot afford and
most of its residents do not support the convoluted Hagel-Martinez
approach.
That is why I was pleased that my colleague, Senator Feinstein, has
proposed a much more practical and humane approach in her orange card
program.
Under the program, all undocumented immigrants who are in the United
Stats as of January 1, 2006, would be eligible to get on a path to
legality. They would be required to pass criminal and national security
background checks, demonstrate an understanding of English and U.S.
history and Government, have paid their back taxes and pay a $2,000
fine.
Moreover, orange card holders would have a continuing obligation to
work, pay their taxes, and not to engage in criminal activity.
The Feinstein orange card program establishes a realistic approach to
dealing with the 10 to 12 million undocumented workers currently in the
country. In conjunction with her AgJOBS amendment, Senator Feinstein
has addressed two of the most important aspects of the comprehensive
immigration reform bill.
I urge my colleagues to vote for the Feinstein amendment. It is a
workable solution to a difficult problem.
The PRESIDING OFFICER (Mr. DeMint). The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I want to speak briefly on the overall
bill and the progress we are making to date. And then I want to
address, briefly, the Feinstein amendment.
I have great regard for the Senator from California. She is one of
the top authorities in the Senate on immigration. She has dealt with
this topic for many years, and in a very practical way she has dealt
with it, and in a very knowledgeable way she has dealt with it.
We are making great progress on getting a comprehensive, bipartisan
immigration bill through the U.S. Senate. Everybody is not going to
agree with this bill at the end of the day, but it has been a delight
to see the body work and to see us go on amendments--a Republican
amendment might pass or fail, a Democrat amendment might pass or fail.
We are really legislating and building a coalition, and I think
building a vote total that, at the end of the day, will pass a strong
bill. I think that is to the credit of the country, and I think it is
to the credit of the body.
I oppose the Feinstein amendment, even though I have great respect
for my colleague from California and her knowledge and ability and the
practical impact of this on her State. I have opposition to it because
I think it slows us down and possibly really disrupts us from being
able to get a comprehensive bill through the body. We have worked to
craft a delicate compromise that--it is my hope--could pass
substantially in cloture, get well over 60 votes on final passage.
A key part of that coalition and building has been the Hagel-Martinez
compromise, that makes the distinctions between if you have been here
more than 5 years or if you have been here less than 2 years. That has
been something where a number of people have said: OK, it is difficult
to work in practice, but it makes some sense to me. It also makes some
sense on the amount of roots you have put into this country. It makes
some sense to me about if you have just come in the last 2 years and
you are just trying to jump in over the line as things change.
If you break that compromise, I think you break the momentum in
passing the bill, and I would not doubt that you break the ability for
us to pass the bill. I think the Senator from California has some real
issues that she raises. I think they are important issues she raises. I
think there are key things for us to consider. But at the end of the
day, I think it causes the bill to fail, and I do not think that is a
useful thing for us to do--having invested the quantity of time we have
in this bill, having the importance of this bill, and having it as the
No. 1 topic across the country--for us now to adopt an amendment that I
believe has the clear possibility of failing the whole bill and pulling
the whole bill under.
For those reasons, with high regard for the Senator from California
and her work, and with real recognition of the practicality of the
issues she is dealing with, I oppose the Feinstein amendment. I hope
that my colleagues will oppose it, and we can move forward toward
closing the debate with a strong vote on final passage.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. MARTINEZ. Mr. President, I would like to speak for 5 minutes in
opposition to the Feinstein amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MARTINEZ. Following on the remarks of the Senator from Kansas, I
have to agree with an awful lot of what he said. We came to this bill
in a situation where it was a good concept. It had some obvious,
positive qualities to it, but it was also a bill that was not gaining
the favor of the vast majority of the Members of the Senate. In order
for it to be successful, we had to tweak it. We had to find a way in
which we could thread the needle, strike a balance, a way in which we
could somehow bring more people to the table in understanding what it
is that we were trying to do.
We came together and found a way of doing so by simply not treating
everyone who was here the same. We talk about a group of 11 million
people in our country illegally today. It was apparent that all of
those people were not in the same situation. Some have been here for a
number of years, well established, sometimes owning a home, certainly
having a steady job, children who were probably by now United States
citizens, having been born here. For the sake of family unity, we felt
it was important to treat people who had been here a longer period of
time differently than more recent arrivals.
Senator Hagel and I came up with a concept of having a 5-year
dividing line where those who have been here more than 5 years would be
treated one way and those who had been here less would be treated a
slightly different way. The requirement was that those who had been
here less than 5 years would be divided in two different ways--those
who have been here less than 5 years who might have come here with the
expectation that there would be some immigration bill. The date was
selected around the time the President first spoke on this issue of
comprehensive reform. We settled on the idea that those who had been
here 2 years or less would not be able to benefit from this bill, but
that those who had been here between 2 and 5 years should be given an
opportunity. We would require that they reenter the country, that they
would have a legal entry into the country, but understanding that all
the other categories or steps that were appropriate for those who had
been here 5 years they would also have to meet before obtaining a path
to regularization, to being here legally, and then, ultimately, to live
the American dream to its fullest extent by becoming citizens of this
country.
Not every immigrant who crossed the southern border intended to
become an American. We could not treat everyone the same. People who
have been here 10, 15 years certainly have a very different situation
than those who have been here 3 years. A lot of times single men will
come to work for a period of time, having no intention of being here
for an extended visit.
At the end of the day, what we have to understand is that we are now
at the crossroads where this bill is about to be completed. This bill
is moving along in a very positive way with support from both sides of
the aisle, which
[[Page S4932]]
makes an even stronger statement. As we move forward to do that, this
amendment will take us a step back. This would bring us back to a time
when we didn't have consensus, to a time when we were not all pulling
in the same direction, and to a time when we didn't have what we have
demonstrated, the support of as many as 66 Members of this body to
defeat some of these amendments that would have taken the bill in a
different direction, that would have taken us from comprehensive reform
to something different.
So for those folks who have been here 2 to 5 years, we want to give
them a path to regularizing themselves in this country. But also we
have to understand that their situation is different than those who
have been here for a long time.
I appreciate the effort of the Senator from California to do what I
know in her heart she believes is fair. I do understand the
difficulties. I don't want to be Pollyannish about it. This is a very
difficult concept to implement. When the time comes, we must try. We
are putting a lot of employment enforcement into this bill which will
make it possible for this to be worked out. Without any idea that this
is going to be easy to do, I do believe that there is a practical
reason. It was a way for us to reach a resolution of how to deal with
this country's population of illegal immigrants, which is a group of
people the size of those people who live in the State of Pennsylvania.
I believe with ample protections to all, understanding the
difficulties that may come about in the implementation, that we have to
go forward and move ahead with the concept that has brought this body
together, the concept that had the favor of the President. The
President, when he spoke on this a week ago, clearly stated that, in
fact, he favored the idea of creating a difference between the groups
of people as they have arrived in this country and the length of time
they have been here.
I urge Members of the Senate not to support the current amendment but
to stick with the concept that has worked so far, the concept that has
pulled us together. I believe if we do that, we will be very close to
final resolution of this bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to add the
names of Senators Durbin and Obama as cosponsors of my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 5 minutes.
Mrs. FEINSTEIN. My understanding is Senator Kennedy has 10 minutes.
Would the Senator like to use that time now?
Mr. KENNEDY. That would be fine.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I thank the Senator from California for
her amendment. It does, for the reasons she has outlined and that I
will address briefly, seem to be a constructive and positive way to go.
It effectively moves us back to what was originally the legislation
that Senator McCain and I introduced. I was enthusiastically in support
of it because it achieves what we are trying to do in terms of earned
legalization. In terms of simplicity and legality for those people who
are here, that is the preferable way to go.
Since that time, as the Senate has worked its will, the Martinez-
Hagel amendment has come in and, as has been outlined, establishes a
tier system. It recognizes that those who are here for over 5 years
will be able to have the earned legalization which many of us support--
strong bipartisan support. Those who are here for just 2 years will be
deported, and those from 2 to 5 will have to return and follow a
different pathway in terms of earning citizenship. That is
administratively more complicated and difficult and puts additional
burdens on Homeland Security.
One of the basic concepts behind the legislation was to try to move
people out of the shadows. This is going to move us back into creating
a situation where a number of people will be back in the shadows. It
does move us in a direction that I would not have hoped we would move.
But frankly, this is the legislative process. The legislative process
has brought us to where we are today. The underlying legislation is a
good product and an important product which will mean a significant and
important change in the opening of opportunity for people who are here,
who want to work hard and pay a fine, pay their back taxes, play by the
rules and become a part of the American dream.
I am enthusiastic for the underlying legislation which includes the
Hagel-Martinez amendment. I will say that the Feinstein amendment is
basically, in fact, what Senator McCain and I had originally hoped for.
It is difficult for someone like myself to argue against it. It makes
sense. But as legislative proceedings go, at least as far as I am
concerned, you are sort of stuck with where you are in terms of the
process.
I thank the Senator from California for again raising an issue which
is a matter of enormous importance. And her reasons are excellent, as
she outlined in her comments. I am sympathetic to that. If the
Senator's amendment is not successful, we still have a very strong
bipartisan document which will deserve to move ahead in this process.
I retain the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, how much time remains under my control?
The PRESIDING OFFICER. The Senator has 9 minutes.
Mr. SPECTER. I yield 4 minutes to the Senator from Texas, Mr. Cornyn.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I rise to oppose the pending amendment. It
is interesting how causes line up. I find myself critical of the Hagel-
Martinez compromise. I also find myself in agreement with the diagnosis
of the Senator from California that the tiered method of trying to
divide up the undocumented population will result in rampant fraud,
just as it did in the post-1986 amnesty. But while I agree with her on
the diagnosis, I don't agree with her prescription. The prescription,
the alleged cure for the diagnosis, is that basically we throw up our
hands and say that we cannot enforce the law. We can't secure our
borders. We can't verify eligibility to work at the work site. We can't
sanction employers who cheat. So we have to let anyone and everyone who
has come to the United States, either in violation of the law or
legally and overstayed, get basically the best gift that America can
confer, and that is legal permanent residency and American citizenship
and to jump in line ahead of those who have waited patiently outside
the country and revisit the mistakes of 1986 when amnesty was tried.
I have two articles from the New York Times, one dated June 18, 1989
and one dated November 12, 1989. I ask unanimous consent that these be
printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibits 1 and 2.)
Mr. CORNYN. The June 18 article says:
The most sweeping effort to halt illegal immigration in
American history, the 1986 overhaul of immigration law, may
have cut the flow of illegal aliens less than expected and
may have actually encouraged unlawful entry in several ways.
It quotes a professor Wayne Cornelius, director of the Center for
U.S.-Mexican Studies at the University of California in San Diego:
We found no evidence that the 1986 immigration law has shut
off the flow of new undocumented migrants.
The article, dated November 12, 1989, includes a quote from the
junior Senator from New York, who was then serving in the House of
Representatives. It says:
Representative Charles E. Schumer, a Brooklyn Democrat who
was an author of this Special Agricultural Worker provision,
said that in retrospect the program seemed ``too open'' and
susceptible of fraud. But he argued that the budget decisions
had made the battle to combat fraud more difficult.
In other words, alluding to the fact that notwithstanding the policy
decisions made by Congress in 1986, that, in fact, it was the failure
to actually finance and implement the policy for work site verification
and employer
[[Page S4933]]
sanctions that contributed to the ineffectiveness of the 1986 amnesty.
I hope we will learn from the mistakes of the past and are not
condemned to relive them with this bill. But I do agree with my
colleagues, Senator Kennedy, Senator Specter, the chairman of the
Judiciary Committee, Senator Martinez and others, that while the
Senator from California is absolutely correct in her diagnosis, this
sets us up for a repeat of massive fraud. The prescription she
recommends is not well advised.
I yield the floor.
Exhibit 1
[From the New York Times, June 18, 1989]
1986 Amnesty Law Is Seen as Failing To Slow Alien Tide
(By Roberto Suro)
Houston, June 17.--The most sweeping effort to halt illegal
immigration in American history, the 1986 overhaul of
immigration law, may have cut the flow of illegal aliens less
than expected and may have actually encouraged unlawful entry
in several ways.
Two years after it began to take effect, experts around the
country are starting to draw conclusions about the law's
effect. As thousands of people continue to enter the country
illegally every day, the first arguments are being entered in
a debate over whether the legislation has achieved its goals,
and whether it ever will.
Some in Congress seek more effective enforcement of the
law; others want to focus on the poverty and turmoil in the
third world that force people out of their homelands.
Meanwhile, the Immigration and Naturalization Service has
proclaimed the law a clear success, and the Bush
Administration has yet to put its own stamp on immigration
policy.
``We have found no evidence that the 1986 immigration law
has shut off the flow of new undocumented migrants,'' said
Wayne Cornelius, director of the Center for U.S.-Mexican
Studies at the University of California at San Diego.
a decade of Study
The Immigration Reform and Control Act of 1986, whose
measures began to take effect in May 1987, was the first
nationwide response to a wave of illegal immigration that
began in the mid-1960's and created a resident population of
illegal aliens variously estimated between 6 million and 12
million people.
After a decade of study and argument in Washington, the
1986 law emerged as a mixture of humanitarian and restrictive
measures. Unlike the two previous efforts to counter similar
waves of illegal immigration in the 1930's and 1950's, there
was no resort to mass deportations. The law offered legal
status to illegal aliens who had lived in the United States
continuously since Jan. 1, 1982, and it imposed penalties on
employers who knowingly hired illegal aliens. It also allowed
migrant workers to enter the United States during harvest
season.
``The legislation bought time for everyone and made the
problem more manageable for a while,'' said Leonel J.
Castillo, who was Commissioner of Immigration and
Naturalization during the Carter Administration and is now
president of Houston International University. ``It seems,
however, that time has passed more quickly than expected, and
so it is important to see where we stand, because I think we
will be dealing with the issue again soon.''
torrents of people
According to indicators used by the immigration service to
estimate traffic across the southern border, this year there
will be 1.7 million to 2.5 million crossings. The most recent
statistics signal that the flow may have increased in April
and May.
Separate surveys of illegal aliens conducted by researchers
based in Mexico, Texas and California all found that
immigration by first-time travelers, as against those who had
previously been to the United States, has been on the rise
for at least a year. Experts also agree that the flow had
dropped off through most of 1987. As a result, immigration
experts say they have identified a ``wait and see'' response
to the law among potential immigrants that may be producing a
new wave of illegal immigration.
Doris Meissner, an expert on immigration for the Carnegie
Endowment, a Washington research organization, said, ``There
is evidence that many potential immigrants waited for a while
to see how the law worked and have since begun moving again.
If so, we should see the flow across the border accelerating
any day.''
a magnet of sorts
The 1986 law allowed 3.1 million previously illegal aliens
to obtain legal status here. Recent studies show that many
thousands of people crossed the border surreptitiously to
take advantage of the program, some of them with falsified
documents and personal histories. The mass of newly legalized
immigrants is also acting as a magnet for illegal aliens who
want to come to the United States to join friends and
relatives.
A plan to strengthen the Border Patrol was never fully
carried out, and experts reach widely differing verdicts on
the effectiveness of the sanctions against employers who hire
illegal aliens.
Representative Charles E. Schumer, the New York Democrat
who was instrumental in shaping the law's final compromises,
said, ``The legislation has had some effect but not close to
what it should have been.'' He complained that the Reagan
Administration favored passage of the law but never gave the
immigration service the resources to enforce it. ``So far,
the law really has not been given a fair test,'' he said.
The current debate over immigration policy is likely to
affect not only future law but also foreign policy. After
hearings last month on the law's effect, Representative Bruce
A. Morrison, a Connecticut Democrat who is chairman of the
House Judiciary Committee's Subcommittee on Immigration,
Refugees and International Law, said, ``Looking at what's
happened the past few years it is increasingly obvious that
most of the reasons for illegal immigration are in the
countries people are leaving, and that unless those
conditions change we may be able to reduce the flow somewhat,
but no enforcement scheme will stop the tide.''
a lonely assertion
At those hearings Alan C. Nelson, Commissioner of the
I.N.S., argued that a steady decline in the number of people
apprehended trying to cross the border ``continues to
demonstrate that the law is working and employer sanctions
are having the intended effect of reducing illegal
immigration.''
But the immigration service is now virtually alone in
asserting that the sanctions have substantially cut the flow
of illegal immigrants. Mr. Nelson has said repeatedly that
the number of people apprehended on the border has dropped at
a rate of 40 percent a year since the law went into effect.
But many scholars dispute Mr. Nelson's statistics. Some
researchers believe sanctions on employers have cut the flow,
but not by 40 percent, and other experts argue the sanctions
have had no effect at all.
The effects of the law are illustrated in the experiences
of two recent illegal immigrants.
A 30-year-old woman from El Salvador said that in February
1988 she left home to live illegally in Texas in part because
``my cousin got papers under the amnesty, and so she was able
to help me with money and a place to stay and generally in
getting around.'' But as a result of the law, she said,
``there is no way to get a good job, because they always ask
for your papers.''
The woman, a secretary in El Salvador, cleans houses in
Houston, and although she would like better work here, she
said she had no desire to return to the poverty and political
violence of her homeland. ``Yes,'' she said, ``it is more
difficult to get here and earn money now, but people still do
it.'' Like other illegal aliens interviewed, she asked not to
be identified.
a family asunder
In the case of another woman from El Salvador, the law had
contradictory effects. She arrived here in 1981, qualifying
for the amnesty, but her five children, now 10 to 18 years
old, arrived too late to be legalized. ``It is a great worry
for me,'' she said, ``because my two oldest have graduated
from American high school. Their home is with me here, but
they cannot get real jobs. What is their future?'' According
to the immigration service, 3.5 million to 4 million illegal
aliens live in the United States on an established basis, as
against 6.5 million to 7 million before passage of the 1986
law.
The drop is accounted for by the number of applicants for
the amnesty programs. In effect, the amnesty divided illegal
immigrants into those who were suddenly legalized and those
who were not, but it did not physically separate these
people.
The immigration service expects that a vast majority of
amnesty applicants will receive permanent status as legal
residents. If they then become citizens after a five-year
waiting period, they will be able to get legal status for
their spouses and children.
the men were first
In the meantime, however, the law has created a new and
growing category of illegal alien: the relatives of amnesty
applicants. Noting that nearly 70 percent of the amnesty
applicants are men, Nestor Rodriguez, a sociologist at the
University of Houston, said: ``Usually, the men were the
first to migrate, and so more of them qualified for the
amnesty. Many woman and children who followed along later did
not qualify, and certainly the men who were here alone and
got papers are now bringing in their families illegally.''
The effect of the amnesty on illegal immigration goes
beyond relatives, however.
``Illegal immigrants have a long history of following well-
established routes,'' said Mr. Castillo, ``and the amnesty
program gave those routes a little more solidity. Now,
instead of relying on other illegals, a new arrival is likely
to know people here who are legal and can offer help with all
kinds of things. It's my guess that it will take a generation
to break those ties.''
Mr. Cornelius of the University of California at San Diego
conducted extensive surveys of three rural Mexican
communities and has concluded, ``There has been no
significant return flow of illegals who suddenly found
themselves jobless in the United States.'' In the short term
at least, he said, the 1986 law ``may have kept more Mexicans
in the United States than it has kept out'' because it
granted some kind of amnesty to about 3.1 million people.
Although immigration experts agree that the prohibition on
hiring undocumented workers has made it more difficult for
illegal aliens to find work here, they differ widely on how
much the sanctions on employers have reduced the flow across
the border.
[[Page S4934]]
arrest rates are debated
Much of the debate over the rate of illegal immigration
centers on statistics for the apprehension of aliens along
the Southern border because the immigration service uses
these figures to support its assertion that the sanctions
have been effective.
Almost all experts dismiss the immigration service view
that proof of decreased flow lies in the 40 percent drop in
apprehensions each year since 1986. The agency's critics say
the number of Border Patrol agents assigned to watch the
border also decreased markedly in that time, and so fewer
apprehensions were inevitable.
Also, it is argued that since 1986 the agents remaining on
the border have spent more time tracking down drug smugglers,
another reason why a decline in apprehension would not
necessarily mean there was a drop in the flow of illegal
aliens. Yet other researchers insist that a substantial part
of the decline in apprehensions is explained by the fact that
most of the 3.1 million amnesty applicants can move across
the border as they have for years but do it legally.
Chart of breakdown of legalization applicants and
agricultural workers by gender, type of work, age, and state
they applied in.
____
Exhibit 2
[From the New York Times, Nov. 12, 1989]
Migrants' False Claims: Fraud on a Huge Scale
(By Roberto Suro)
Houston, Nov. 11, 1989.--In one of the most extensive
immigration frauds ever perpetrated against the United States
Government, thousands of people who falsified amnesty
applications will begin to acquire permanent resident status
next month under the 1986 immigration law.
More than 1.3 million illegal aliens applied to become
legal immigrants under a one-time amnesty for farm workers.
The program was expected to accommodate only 250,000 aliens
when Congress enacted it as a politically critical part of a
sweeping package of changes in immigration law.
Now a variety of estimates by Federal officials and
immigration experts place the number of fraudulent
applications at somewhere between 250,000 and 650,000.
The Immigration and Naturalization Service has identified
398,000 cases of possible fraud in the program, but the
agency admits that it lacks both the manpower and the money
to prosecute individual applicants. The agency is to begin
issuing permanent resident status to amnesty applicants on
Dec. 1, and officials said they were approving 94 percent of
the applicants over all.
Evidence of vast abuse of the farm worker amnesty program
has already led to important changes in the way immigration
policies are conceived in Congress. For example, recent
legislation to aid immigration by refugees from the Soviet
Union was modified specifically to avoid the uncontrolled
influx that has occurred under the agricultural amnesty
program.
Supporters of the farm worker amnesty argue that it
accomplished its principal aim of insuring the nation a
cheap, reliable and legal supply of farm workers and that it
made an inadvertent but important contribution in
legitimizing a large part of the nation's illegal alien
population.
Critics point to cases like that of Larry and Sharon Marval
of Newark. Last year they pleaded guilty to immigration fraud
charges after immigration service investigators alleged that
the Marvals were part of an operation that helped about 1,000
aliens acquire amnesty with falsified documents showing they
had all worked on a mere 30 acres of farmland.
The amnesty for farm workers was a last-minute addition to
the Immigration Reform and Control Act of 1986, which sought
to halt illegal immigration with a two-part strategy.
Under a general amnesty, illegal aliens who could prove
they had lived in the United States since before Jan. 1,
1982, were given the chance to leave their underground
existence and begin a process leading to permanent
resident status. And to stem further illegal immigration,
the employment of illegal aliens was made a crime.
The agricultural amnesty program was adopted at the
insistence of politically powerful fruit and vegetable
growers in California and Texas who wanted to protect their
labor force. In several respects, the provisions for the
program were much less strict than the general amnesty
program, which drew 1.7 million applicants. Instead of having
to document nearly five years of continuous residence, most
agricultural worker applicants had to show only that they had
done 90 days of farm work between May 1, 1985, and May 1,
1986.
Representative Charles E. Schumer, a Brooklyn Democrat who
was an author of this Special Agricultural Worker provision,
said that in retrospect the program seemed ``too open'' and
susceptible to fraud. But he argued that budget decisions had
made the battle to combat fraud more difficult.
``There has not been enough diligence in tracking down the
fraud,'' he said, ``because funding for the I.N.S. has been
cut by the White House in each of the last three budgets,
even though everyone agreed when the bill passed that greater
I.N.S. manpower was essential to make it work.''
Congress rarely raises the immigration service budget above
Administration requests.
Aside from its budget problems, the immigration service has
repeatedly come under fire this year in Congress and in an
audit by the Justice Department for what was termed
mismanagement and administrative inefficiency.
John F. Shaw, Assistant Immigration Commissioner, agreed
that ``manpower restrictions'' at the agency were a major
factor in the fraud in the agricultural amnesty program. He
said much of the fraud ``shot through a window of
opportunity'' when the agency was frantically trying to deal
with many new burdens of the 1986 immigration law.
Mr. Shaw said law-enforcement efforts had been limited to
the people who sold false documents to applicants for the
farm worker amnesty. The immigration service has made 844
arrests and won 413 convictions in cases alleging fraud in
the amnesty program. The people involved ranged from notaries
public to field crew leaders. ``It was a cottage industry,''
Mr. Shaw said.
The immigration service can revoke legal status if it finds
the applicant committed fraud, but even this effort is
limited. Only applications that appear linked to a fraud
conspiracy are held for review, as when an unusually large
number of applicants assert that they have worked in same
place. Some 398,000 aliens have fallen into this category
since the application period ended last Nov. 30, but it is
likely that many of them will get resident status.
Mr. Shaw said the fraud conspiracies often involved farms
that actually did employ some migrant labor. So it is
frequently impossible to separate legitimate from illicit
claims.
Given the limited law-enforcement effort, no precise count
of fraud in the agricultural amnesty program is possible. But
some rough estimates are possible based on information from
the aliens themselves. An extensive survey conducted in three
rural Mexican communities by the Center for U.S.-Mexican
Studies at the University of California in San Diego found
that only 72 percent of those who identified themselves as
applicants for farm worker amnesty had work histories that
qualified them for the program. A similar survey conducted by
Mexican researchers in Jalisco in central Mexico found that
only 59 percent qualified.
But fraud alone does not explain why the program produced
more than five times the applicants Congress expected. Frank
D. Bean, co-director of the Program for Research on
Immigration Policy at the Urban Institute in Washington, said
the miscalculation in the Special Agricultural Worker program
reflected longstanding difficulties in tracking the number of
temporary illegal migrants from Mexico.
``It is at least plausible that a very large percentage of
the S.A.W. applicants had done agricultural work in the U.S.
even if they did not meet the specific time requirements of
the amnesty,'' Mr. Bean said.
Mr. Shaw of the immigration service, and other critics of
the law, believe there were more fundamental flaws. ``It was
a weak program and it was poorly articulated in the law,'' he
said.
Unlike almost all other immigration programs, which put the
burden of proof applicant, the farm amnesty put the burden on
the Government. Consequently, aliens with even the most
rudimentary documentation cannot be rejected unless the
Government can prove their claims are false.
Stephen Rosenbaum, staff attorney for California Rural
Legal Assistance, a nonprofit service organization for farm
workers, argued that there was no other way to structure an
immigration program for an occupation ``that does not produce
a paper trail.'' He noted that farm workers are paid in cash
and neither the employers nor the workers keep detailed
records.
``You can argue the wisdom of a farm worker amnesty, but if
you have one, you have to recognize the immense logistical
problems involved in producing evidence,'' he said.
The immigration service at first tried to apply the
stringent practices common to other immigration programs,
like rejecting applicants with little explanation when their
documents were suspect. But three lawsuits brought in
Florida, Texas and California over the last two years forced
the agency to follow the broader standards mandated by
Congress.
The burden-of-proof issue arose again earlier this year
when the House of Representatives approved legislation that
would have made any person who could prove Soviet citizenship
eligible for political refugee status.
A legislator with a powerful role on immigration policy,
Senator Alan K. Simpson, Republican of Wyoming, eliminated
the provision because of concerns raised by the farm worker
amnesty program, an aide said. Mr. Simpson, who is on the
Senate Judiciary Subcommittee on Immigration and Refugee
Affairs, substituted a series of specific circumstances that
had to be met for a Soviet citizen to be considered a
refugee, like denial of a particular job because of religious
beliefs.
Immigration experts believe that the agricultural amnesty
program will probably color policy debates over other
categories of aliens whose qualifications will be difficult
to document, like the anti-Sandinista rebels of Nicaragua.
``One certain product'' of the agricultural amnesty
program, Representative Schumer said, ``is that in developing
immigration policies in the future, Congress will be much
more wary of the potential for fraud and will do more to stop
it.''
[[Page S4935]]
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. How much time do I have remaining?
The PRESIDING OFFICER. The Senator has 4\1/2\ minutes.
Mrs. FEINSTEIN. Mr. President, I would like to make a couple of
comments.
I very much appreciate my service and Senator Cornyn's service on the
same committee and have great respect for him and also for Senator
Martinez who has introduced the Hagel-Martinez plan with the best of
motives. Senator Cornyn said we shouldn't throw up our hands. I am not
throwing up my hands. I want strong borders. I voted for a fence. I
believe we should put National Guard on the borders. We provide 12,500
additional Border Patrol, 2,500 border inspectors, over $1 billion of
equipment for the border. We should have our border enforced. We should
get the help of Mexico to enforce it.
Secondly, with this plan, there is no jumping in line ahead of anyone
waiting legally for a green card.
The line begins for the orange card recipients, if such should ever
be, when that line is expunged. What we do is recognize the reality,
learn from the streets, understand what happens, and then try to build
a comprehensive solution to deal with the real world--border control,
increase practical numbers of visas, as well as providing a path for
earned legalization for those people who are here now.
That path has several hurdles. It will weed out those who should not
receive an orange card from those who should. It is an electronic
process. It is doable, and it is practical. It recognizes that if you
leave 4.4 million undocumented immigrants subject to deportation,
whether it is this year or 4 years down the pike, you create another
illegal pool of workers in this country, which I think destroys the
comprehensive approach.
Therefore, I just want to say that this orange card has specific
requirements that have to be met over a 6-year period of work, of
learning to speak English, of paying a fine, of paying taxes, of work
history. That has to be met on an annual basis, submitting work history
receipts on an annual basis. The program financially takes care of
itself with the fines and fees. I believe it is a practical, humane way
to go which can, in fact, with the other components of the bill, create
a comprehensive solution to immigration reform which has a chance to
stop illegal immigration into our country.
I am concerned that should Hagel-Martinez become the law, we are back
where we started with a huge group of people subject to deportation at
one point or another. We know that creates the underground labor pool,
which then creates the incentive for an addition to that underground
labor pool. I believe the orange card proposal we have before the
Senate now does not do that. But the devil is in the details of all of
this. We will see.
How much time do I have remaining?
The PRESIDING OFFICER. Less than 1 minute 50 seconds.
Mr. KENNEDY. Mr. President, I yield whatever time I have to the
Senator from California.
Mrs. FEINSTEIN. Mr. President, I would like to say one other thing. A
lot of people come to me in desperate circumstances for private bills.
I have tried to meet some of the families. What I have seen in these
families is truly amazing. I have seen a legacy of work over a period
of time that is amazing for any human being. I have actually seen
families whose children are valedictorians of their high school class.
I have seen them hide, but they pay their taxes, and they own a home.
Some are even supervisors of companies.
If you look around America, the meatpacking industry, the chicken-
processing industry, virtually all of the manufacturing and production,
you will see these people as a dominant part of that workforce. I look
at the great bread basket that is California, the largest agricultural
State in the Union, and I know at least 600,000 of our workforce are
undocumented and illegal. I know they come here because of the absence
of any hope or opportunity or ability to make a decent living where
they were living before.
I think this whole dialog we are having puts an enormous obligation
on Mexico to begin to understand the needs of their people and do
something to help them become economically more upwardly mobile because
this is certainly the main problem that leads to the cross-border
immigration that is illegal into our country. So we have tried to solve
this with a comprehensive bill. I think it makes sense. It says to
everybody that you have to earn this legalization. You have to get out
there and work for at least 6 more years. You have to report in, but
you have a card which identifies that you are in an adjusted status,
you are not subject to deportation. You can raise your children. You
can volunteer for community activities. You can become a constructive
member of society. I believe that is worth a lot.
Enabling people to live to their fullest is worth a lot. I hazard a
guess that there is not one person who is going to go home because of
what we do in a bill. They are going to stay, they are going to
continue, but the lifestyle is going to be clandestine, and they are
never going to be able to reach their full potential. This amendment
allows them to do so. I urge the Senate to vote yes.
I yield the floor and the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, it is with reluctance that I oppose the
amendment offered by the Senator from California because if this
amendment were to be adopted, I believe the very delicate and fragile
coalition we have for this bill would fail. We are going to be looking
for a cloture vote tomorrow, and if we were to go back to before the
tenuous agreement that has been worked out to date with the three
subdivisions--those here 5 years or more, those here 2 to 5 years, and
those here less than 2 years--I think our efforts at cloture would fail
and the prospects for failure of the bill would be very high.
We have structured the bill on a matter of principle, that those who
are here the longest have the most roots and deserve the most
consideration. The top tier was those who have been here 5 years or
more. Selecting the date of January 7, 2004, as a cutoff date was done
because that was the date of the President's speech on immigration
reform. And anybody who came to the United States was on notice that
they would be treated differently.
Under ideal circumstances, if we didn't have a tenuous coalition and
we didn't have a conference prospectively with the House, I would be
very sympathetic and inclined to support what the Senator from
California has done. The reality is that it is going to be very
difficult to find people who are here and not turn them into a fugitive
class. The theory is that those people will not be able to find jobs
and that they will, therefore, return.
But this legislation is on the edge of the ledge as it is. To keep
the coalition intact--and I think that was the thrust of what Senator
Kennedy had to say, if I understood him, and I think others in the
coalition are of the same mind--it is with reluctance that I oppose
what the Senator from California has said. As a nation of immigrants,
it would be nice to include everybody on the path to citizenship, but
we face a lot of opposition, realistically, on the charge of amnesty,
which I have dealt with on the floor. The bill is not amnesty; it is
earned citizenship.
How much time do I have?
The PRESIDING OFFICER. Two minutes.
Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so
ordered.
Under the previous order, all time having expired, the question is on
agreeing to amendment No. 4087, as modified.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
[[Page S4936]]
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) was necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 37, nays 61, as follows:
[Rollcall Vote No. 138 Leg.]
YEAS--37
Akaka
Bayh
Biden
Bingaman
Boxer
Cantwell
Chafee
Clinton
Conrad
Dayton
Dodd
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Menendez
Mikulski
Murray
Obama
Reed
Reid
Salazar
Sarbanes
Schumer
Stabenow
Wyden
NAYS--61
Alexander
Allard
Allen
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Dorgan
Ensign
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--2
Enzi
Rockefeller
The amendment (No. 4087), as modified was rejected.
Mr. REID. Mr. President, I move to reconsider the vote.
I move to lay that motion on the table.
Mr. SPECTER. The motion to lay on the table was agreed to.
Death of Senator Lloyd Bentsen
Mr. REID. Mr. President, I was just notified a few minutes ago that
Lloyd Bentsen died. For those of us who have had the pleasure of
serving with Lloyd Bentsen, this is a sad day. There was no one who
better represented the Senate than Lloyd Bentsen. He looked like a
Senator, he carried himself so well, and he acted like a Senator. He
legislated like a Senator. He died at age 85. He was sick for a number
of years. He was a person who had a great political record. He served
in the House of Representatives for three terms, and he served in the
Senate--he could have served as long as he wanted--and became Secretary
of the Treasury during the Clinton administration. He, of course, ran
for Vice President and he ran for President.
For me personally, he was such a guiding light. I can remember when I
was elected to the Senate, and I was trying to get on the
Appropriations Committee. I met in his hideaway.
This speaks about the way Lloyd Bentsen conducted his life. I was
telling him why it would be good for me. I had been through a tough
race. It was the most noted race in the cycle at that time. I was
talking to him a lot about why it was important for me to get on the
Appropriations Committee. He ended the discussion very quickly.
He said: It doesn't matter if it is good for you. I believe it is
good for the Senate.
That was how he conducted his life. He was someone we all looked to.
As a new Senator, I could talk to him with reverence. I can remember
visiting with him when he was Secretary of Treasury. He told me how
much he missed the Senate and how lonely it was down there and how he
missed the collegiality of the Senate.
The State of Texas has had great Senators, but no Senator has ever
been a better Senator than Lloyd Bentsen.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER (Mr. Burr). Without objection, it is so
ordered.
Mr. REID. Mr. President, with the consent of the majority leader, I
ask unanimous consent that the time for the recess begin now, 12
minutes early.
The PRESIDING OFFICER. Is there objection?
Mr. FRIST. Mr. President, there will be no objection. We are making
real progress and have begun discussing how we will handle the rest of
the day and tomorrow as well. There is no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the Senate stands in recess until 2:15 p.m.
Thereupon, at 12:19 p.m., the Senate recessed until 2:15 p.m. and
reassembled when called to order by the Presiding Officer (Mr.
Voinovich).
The PRESIDING OFFICER. The Senator from Texas is recognized.
(The remarks of Mrs. Hutchison are printed in today's Record under
``Morning Business.'')
Mrs. HUTCHISON. Mr. President, I yield the floor and suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________