[Congressional Record Volume 152, Number 67 (Thursday, May 25, 2006)]
[Senate]
[Pages S5135-S5191]
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 bill clerk read as follows:

       A bill (S. 2611) to provide for comprehensive immigration 
     reform and for other purposes.


               RECOGNITION OF THE ACTING MAJORITY LEADER

  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.


                                SCHEDULE

  Mr. SPECTER. Mr. President, we have a unanimous-consent agreement 
limiting the remaining number of amendments, with time agreements 
worked out. We would appreciate it if the Senators in sequence would be 
ready to go when the next amendment comes up.
  We anticipate a long session today. There will be other votes 
following completion of the immigration bill, including a vote on 
cloture on the nomination of Brett M. Kavanaugh, U.S. circuit judge for 
the Court of Appeals for the District of Columbia.
  We are now ready to proceed with the Cornyn amendment.
  I should announce further that it is our intention to stack the votes 
at the conclusion of the debate on remaining amendments.
  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
recognized.


                           Amendment No. 4097

  Mr. CORNYN. Mr. President, I call up my amendment No. 4097, which is 
at the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The bill clerk read as follows:

       The Senator from Texas [Mr. Cornyn] proposes an amendment 
     numbered 4097.

  Mr. CORNYN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

  (Purpose: To modify the requirements for confidentiality of certain 
information submitted by an alien seeking an adjustment of status under 
                             section 245B)

       Beginning on page 362, strike line 4 and all that follows 
     through page 363, line 12, and insert the following:
       ``(e) Confidentiality of Information.--
       ``(1) In general.--Except as provided in paragraph (2) or 
     (3) or as otherwise provided in this section, or pursuant to 
     written waiver of the applicant or order of a court of 
     competent jurisdiction, no Federal agency or bureau, or 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) 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 by such entity; or

[[Page S5136]]

       ``(B) an official coroner for purposes of affirmatively 
     identifying a deceased individual, whether or not the death 
     of such individual resulted from a crime.
       ``(3) Inapplicability after denial.--The limitation under 
     paragraph (1)--
       ``(A) shall apply only until an application filed under 
     paragraph (1) or (2) of subsection (a) is denied and all 
     opportunities for appeal of the denial have been exhausted; 
     and
       ``(B) shall not apply to use of the information furnished 
     pursuant to such application in any removal proceeding or 
     other criminal or civil case or action relating to an alien 
     whose application has been granted that is based upon any 
     violation of law committed or discovered after such grant.
       ``(4) 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.

  Mr. CORNYN. Mr. President, this amendment is one I believe is 
absolutely essential to the functioning of this comprehensive 
immigration reform plan which has been shaped over the last 2 weeks on 
the Senate floor. It is premised upon the concept of information 
sharing, and in a post-9/11 world this is the concept with which we 
have become familiar because the failure to share information between 
law enforcement and intelligence-gathering authorities and other 
agencies of the Federal Government was one of the causes of the 
terrible disaster this country sustained on September 11, 2001.
  This amendment strikes an appropriate balance between confidentiality 
of the records of the applicant for benefits under this bill and fraud 
detection. The compromise we have heard and which has been carefully 
crafted by a bipartisan coalition here will not in any way be unraveled 
or hurt by this amendment.
  Finally, I believe an illegal alien will not be deterred from 
applying because of this amendment. This amendment does not remove 
confidentiality per se. It applies only after an application is denied 
and the need for confidentiality passes. The text is modeled after the 
Violence Against Women Act. And I ask my colleagues, if the limitation 
on confidentiality is OK in the case of women who are subjected to 
violence, why isn't it OK for workers who are simply here illegally?
  This country's early experience--about 20 years ago now--with 
immigration reform shows that legalization or an amnesty program is a 
magnet for fraud and can be exploited in a number of ways. We know that 
this vulnerability can be exploited, not only by common criminals but 
also by terrorists. Three terrorists convicted in the 1993 World Trade 
Center bombing obtained green cards through the 1986 amnesty, including 
New York City cabdriver Mohammed Abouhalima, who obtained a green card 
through the agricultural worker amnesty program. The New York Times has 
described the 1986 amnesty as ``one of the most extensive immigration 
frauds ever perpetrated against the United States Government.''
  Within just a few years, it was reported that the Government had 
already identified almost 400,000 cases of possible fraud. One of the 
reasons there was so much fraud in the 1986 amnesty was because the law 
did not allow the Government to share information even after an 
application was denied. Yet the current bill contains the exact same 
text and the exact same flaws.
  My amendment does not eliminate any confidentiality provisions in the 
bill. The workers who apply will be protected by the existing 
confidentiality provisions. My amendment simply allows the Government 
to share and use information once the worker's application and all 
appeals are denied.
  As I mentioned, my amendment is modeled after the current legal 
protections provided in the Violence Against Women Act, which allows 
the Government to share and use information submitted in an application 
``when the application for relief is denied and all opportunities for 
appeal of that denial have been exhausted.'' If the limitation is OK in 
that context, why is it not appropriate in this context?
  I don't believe this amendment would deter any alien from applying 
for legal status. Illegal workers face deportation, a secure border, 
and worksite enforcement. We may hear some say that in order for 
undocumented individuals to come forward and take advantage of the 
legalization program provided by this underlying bill, we can't do 
anything that might cause them to second-guess or question whether they 
should come forward. But the fact is, I think there has to be a balance 
struck. I don't believe any illegal alien will be deterred from 
participating in the very generous provisions of this underlying bill 
because of concerns that if their application is denied, that 
information can then be shared with law enforcement personnel.
  The fact is, the kinds of things we are looking out for are fraud--
massive fraud--schemes which would be designed to undermine the very 
structure of this negotiated comprehensive immigration reform bill.
  Paul Virtue, President Clinton's general counsel at the Immigration 
and Naturalization Service, testified before Congress that:

       The confidentiality restrictions of law [in the 1986 
     amnesty] also prevented INS from pursuing cases of possible 
     fraud detected during the application process.

  That was before the House Judiciary Committee on March 4, 1999.
  One of our colleagues who was then in the House of Representatives, 
Senator Schumer, was quoted in the New York Times in 1989 as saying:

       One certain product of the agricultural amnesty program . . 
     . 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.

  It has been said famously that those who refuse to learn from history 
are condemned to relive it. I suggest to my colleagues that we should 
have learned something from the massive fraud in the 1986 amnesty, and 
we should not relive that in this bill today.
  This amendment improves the current bill by preserving the 
confidentiality of applicants while allowing the Government to share 
information, perhaps to uncover massive frauds, criminal syndicates 
that are designed to try to circumvent the protections in this bill and 
gain access to our country and our immigration system in spite of 
massive criminal organized crime. I ask my colleagues, do we really 
want to grant impunity for fraud? Do we really want to invite criminals 
and those who would perpetrate such fraud to do so again when we have 
the very tools at our command which will allow us to strike the proper 
balance between prosecution for fraud and yet at the same time 
encouraging those who would benefit from this program to come forward?
  I have heard some suggestion that the only way we are going to 
encourage people to come forward is if we make doing so an 
unequivocally positive experience. In other words, it is all carrot and 
no stick. But I would suggest that the most practical way to deal with 
the current situation is for a combination of carrot and stick--the 
carrot being, obviously, the offer of the great benefits and very 
generous benefits provided by this underlying legislation, but the 
stick has to be things such as worksite verification. Ultimately, I 
believe that is the linchpin of the success of this entire program. Not 
even border security represents the linchpin for the success of this 
comprehensive immigration reform plan because 45 percent of illegal 
aliens currently in the United States entered legally, like the three 
convicted bombers of the 1993 World Trade Center explosion. But we need 
a combination of border security, worksite verification and 
enforcement, and employer sanctions for those who cheat, in order to 
dry up the attraction of those who want to come to the United States to 
work. But in doing so, we can provide a good balance for those who are 
here and who Congress is in the process of determining should be 
available for certain benefits under this bill, but I believe do so in 
a way that would prevent and make far less likely the massive fraud 
which undermined the 1986 amnesty.
  I reserve the remainder of our time and yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. KENNEDY. Mr. President, I was here in 1986. I understand the 1986 
act very well. I listened to my friend from Texas describe the 
provisions we have for earned legalization, saying effectively it is 
the same as offered in 1986. Of course, it is not because in 1986 that 
was a real amnesty. We have had that debate for 10 days. We can have it 
again today.
  What we are talking about in this program is recognizing the people 
who have violated the law are able to work

[[Page S5137]]

and earn their way into a position where eventually they can apply for 
citizenship if they pay a penalty, if they demonstrate they have paid 
their back taxes, have had no trouble with the law, and they are 
prepared to learn English. After the last person in line legitimately 
is able to gain entry into the United States, they can adjust their 
status.
  The 1986 failure is entirely different than what we have now. We had 
a proliferation of fraudulent documents. That is the history. We 
understand that. We had Republican and Democrat administrations that 
refused to enforce the 1986 laws. That is history. We can complain 
about 1986, but 1986 is not 2006. What we did in 1986 is not 2006.
  We can talk about how some of the terrorists got into the United 
States. Most of the September 11 terrorists got into the United States 
through Saudi Arabia. The reason they got in is because the CIA didn't 
talk to the FBI or the Immigration Service. The majority of those who 
came here and were part of September 11 were known by the CIA, and they 
never shared that information with the Immigration Service or the FBI. 
They did not need fraudulent documents. We needed the FBI and CIA to 
work together.
  Having said that, hopefully we have a better relationship between the 
Central Intelligence Agency and the FBI now than we had then. However, 
that is the past. We have to learn from the past.
  I listened to the Senator say what we need is tamper-proof documents. 
If we do not have tamper-proof documents, this system is not going to 
work. Tamper-proof documents is what we are committed to, to try and 
deal with the fraud.
  People can come to the Senate and talk about the fraud in our 
immigration system, which is true. What we are trying to do with this 
legislation is remedy that. I don't know what the alternative is from 
the Senator from Texas. I know what his concerns are, but I don't know 
what his remedy is. We are talking about tamper-proof documents. We are 
talking about tamper-proof documents for guest workers. We are talking 
about tamper-proof documents so laws can be enforced against employers 
who are going to fire undocumented individuals who do not have the 
tamper-proof documents. We are talking about tamper-proof documents for 
those individuals who want to play by the rules and go by earned 
legalization.
  The language in this legislation is very clear. That is, if you lie 
on your application, you lose all your rights, and you are subject to 
deportation. However, if you commit an innocent mistake on your 
application, that can be considered and not be used as a vehicle for 
deportation. That is the principal difference. I don't think that is 
unreasonable.
  The Senator believes if we do not change what we have in our law to 
what he wants, if we accept his amendment, people will not be 
discouraged from coming forth. Of course they will be discouraged from 
coming forth. People come forth and they, in good faith, make an 
application. They find out that application somehow is defective. 
Whether it is willful, knowing, or they lied about it, they are subject 
to deportation. If it is an innocent mistake, we don't want them 
deported. If this is subject to the Cornyn amendment, why are they 
going to come forward and share information if they know if they share 
information confidentially they will be deported? We are undermining an 
essential aspect of this legislation--bringing people out of the 
shadows.
  Of the millions of people who are here, we have people who have come 
here because they want to work hard, they want to provide for their 
families, they want to be part of the American dream. They are prepared 
to learn English. They are prepared to pay their taxes. They are 
prepared to pay their penalty. They want a sense of pride. They 
practice their faith. They want to be able to come in and be able to 
adjust their status so they can be legalized to have the respect of 
their children, their family, and their community. That is what the 
great majority of the people want. That is what we are trying to do.
  If we follow the Cornyn amendment, people come in good faith, someone 
fly-specs that particular application and says: No, it is a question 
whether this is criminal intent--boom, you are gone; you are deported. 
We will have a very difficult time.
  We have crafted this legislation so those who are going to lie on 
that application, those who are involved in criminal activity are 
subject to deportation--no ifs, ands or buts. But we also understand in 
this complicated world there will be innocent mistakes made, and we do 
not want to subject those people to deportation. That is not what this 
is about.
  It seems to me honest people who submit a good-faith application to 
earn legalization should not be citing their own deportation orders; 
otherwise, why should anyone apply? That effectively is what the Cornyn 
amendment does. It effectively undermines the whole purpose and scope 
and thrust of the legislation.
  I withhold the time.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. I have enormous respect for the knowledge and passion the 
Senator from Massachusetts brings to this issue. He is reading more 
into the amendment than certainly I intend. I would like to explain 
that.
  First of all, I don't want to get into an argument with him today 
about what is and what is not amnesty. We have had that debate. We will 
leave further discussion of that for another day.
  I agree with the Senator that what undermined the 1986 amnesty, which 
I think we both agree was amnesty, was the proliferation, as he said, 
of fraudulent documents. He acknowledges, and correctly so, coming here 
now 5 years post-September 11, that it is important all of our law 
enforcement and intelligence agencies communicate with one another in a 
way that protects the American people.
  He talks about tamper-proof documents. This bill does not provide for 
such tamper-proof documents. In fact, it maintains the current regime 
of allowing people to prove their eligibility to work by showing some 
combination of up to 20 different documents. That is where fraud has 
such great potential. We know there are document mills, there are 
criminal organizations that will generate a passport, a Social Security 
card, a driver's license--you name it. Some of the quality of their 
work is very high, and it easily passes for a valid document. But we do 
not have that tamper-proof document in this bill, and I hope in the 
conference committee we will agree among ourselves that is an essential 
part of this comprehensive immigration reform.
  What I am getting is, if someone used a fraudulent document to apply 
for the benefits under this bill, and they are denied the benefits 
under this legalization program, that information ought to be shared 
with the FBI and with, potentially, the CIA in cases where their 
jurisdiction is invoked. This has the opportunity not only to lead our 
law enforcement personnel to shut down these fraudulent document mills, 
but also potentially to crack criminal syndicates engaged not only in 
generating false documents but trafficking in persons, in drugs, in 
guns, and even potentially terrorist organizations.
  It is absolutely critical we have the Department of Homeland Security 
able to share that kind of information with the CIA and the FBI. It is 
important we bring down those stovepipes that prevented the information 
sharing that might have prevented September 11.
  I am not suggesting a good-faith mistake in an application for the 
benefits under this bill would result in deportation. To the contrary. 
I am glad to hear the Senator from Massachusetts say, if you lie, you 
lose, you get deported. I believe we need to have a commonsense 
availability of this information--not on a widespread basis; we are not 
going to publish it on the Internet. But law enforcement ought to be 
able to share in some of this information on a case-by-case basis in a 
way designed not only to root out and prevent crime and punish crimes 
that already have been committed but potentially protect America 
against future terrorist attacks.
  I cannot for the life of me understand why this is controversial, 
particularly coming up as we are on the fifth anniversary of September 
11.
  I withhold the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, first of all, under title III, there are 
only 4 documents, not 20 documents. Title III,

[[Page S5138]]

4 documents: the passports, REAL ID, the green cards, and employment 
authorization documents. They are basically biometric documents, 4 
documents in title III, not 20.
  Second, the Senator from Texas is describing the conditions we had in 
1986, not in this legislation. There is the encouragement of 
cooperation with the Department of Homeland Security and the FBI when 
we have document fraud or when there is fraud. We make that extremely 
clear. That was not clear, as the Senator appropriately pointed out, in 
1986. There was not that kind of cooperation. There was some but not 
nearly what there should be. We are all for that.
  The confidentiality clause in the underlying bill does not protect 
the criminals. On the contrary, the bill requires DHS and State to 
disclose all information furnished by legalization applicants to law 
enforcement entities conducting criminal activity and national security 
investigations.
  We learned from what we called IRKA, the 1986 act, and we have that 
in the legislation. On page 38 of the legislation:

       Other documents.--Not later than October 26, 2007, every 
     document, other than an interim document, issued by the 
     Secretary of Homeland Security, which may be used as evidence 
     of an alien's status as an immigrant, nonimmigrant, parolee, 
     asylee, or refugee, shall be machine-readable and tamper-
     resistant, and shall incorporate a biometric identifier to 
     allow the Secretary of Homeland Security to verify 
     electronically the identity and status of the alien.

  We have spent time on it. I am a strong believer that is what we 
need. This legislation is not going to work unless we have an effective 
system, unique, special. Other countries have this; we ought to be able 
to do it, many of the countries in the Far East, also Brazil, South 
America, and other countries. We can and should do it. We will do it. 
We have developed the language to do it.
  We are for prime documents that have been accepted and recommended. 
We worked with the Department of Homeland Security on what documents 
they are for. We have insisted on cooperation between the FBI, the 
Department of Homeland Security and the Justice Department in any area 
of criminality.
  We are all for at least what I understand the Senator has said. We 
are glad to clarify that. We believe we have attended to that.
  There is no question in 1986 that was not the case. We were rife with 
fraudulent documents, failure to enforce the law against employers, 
separation between the INS at that time and the FBI. We did not have 
the Department of Homeland Security. All of that we have learned from. 
We have addressed the principal issues and questions the good Senator 
has outlined.
  I withhold the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Mr. President, I appreciate the comments of the Senator 
from Massachusetts, but looking at the page he refers to on page 38 of 
the bill, it says:

       Not later than October 26, 2007, every document, other than 
     an interim document, issued by the Secretary of Homeland 
     Security . . . shall be machine-readable and tamper-
     resistant. . . .

  I certainly applaud that aspirational goal. I would just note that 
just within the past few days, though, we have postponed the 
implementation of the Western Hemisphere Travel Initiative card for 
another 18 months. There is no certainty that will happen by that date. 
What happens in the interim?
  Let me just provide a couple of examples.
  In 1995, Jose Velez, was found guilty of immigration fraud after he 
filed fraudulent applications under the 1986 amnesty. Let me just 
parenthetically note, in talking to Emilio Gonzalez, the current head 
of Citizenship and Immigration Services, he tells me there is still 
litigation over some of the cases covered by the 1986 amnesty--still in 
litigation.
  But getting back to Mr. Velez's case, he said the task force that 
brought down Velez resulted in the guilty pleas or convictions of 20 
individuals who together are responsible for filing false legalization 
applications for in excess of 11,000 unqualified aliens. Between March 
of 1988 and January of 1991, Velez and his coconspirators submitted 
approximately 3,000 fraudulent applications.
  In connection with the 1986 legalization program, there were 920 
arrests, 822 indictments, and 513 convictions for fraud and related 
criminal activity.
  I would just return to something I said at the outset.
  What we are talking about in this amendment is essentially the same 
language contained in the Violence Against Women Act.
  The language in that act, which was designed to protect battered 
women and family members, states that the confidentiality provisions 
end ``when the application for relief is denied and all opportunities 
for appeal of the denial have been exhausted.''
  I would suggest, if that language is good enough for the protection 
of women against whom violence has been committed, isn't it good enough 
for a worker who is simply out of status?
  This amendment is not designed to undercut the compromise or the 
overall structure of the plan that is on the floor. This is designed to 
make it work. I want to make sure we are committed not only to 
comprehensive immigration reform but that we are actually going to make 
it work. That is all this amendment does.
  I ask for the support of my colleagues.
  Mr. President, I yield the floor and retain the remainder of our 
time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Democratic leader.
  Mr. REID. Mr. President, I yield 1 hour of my time postcloture to the 
Senator from Massachusetts, Mr. Kennedy.
  The ACTING PRESIDENT pro tempore. The Senator has that right.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, early this morning, as we do every 
morning before coming to the floor to debate the immigration bill, a 
group of Senators sat down to consider and analyze the amendments which 
are on the list for today. In discussing the amendment by the Senator 
from Texas, there was, candidly, more confusion than I have seen on any 
of the amendments which we have analyzed so far.
  When the Senator from Texas says the immunity is eliminated only 
after the application is denied, then the reason for confidentiality 
ends, I disagree with him about that because the reason for the 
confidentiality is to get the applicant to be candid and complete and 
honest about all of the information in the application. So if the 
applicant knows that at some point the confidentiality is gone, there 
is no longer the motivation to be completely open and completely candid 
in making out the application.
  What we are really seeking, as a public policy matter, is to get the 
applicants to be candid and forthright and complete in the information 
they are providing. If there is evidence of fraud in the application, 
or if there is evidence of crime, that will be provable by evidence 
outside the scope of the application.
  There is another aspect of the confidentiality; that is, the 
confidentiality or safe harbor which applies to the employer. When the 
immigrant makes an application, there is material which has to be 
supplied by the employer--illustrative of which is a check stub, which 
authenticates that the applicant has a job.
  Now, the confidentiality applies to what the employer provides as 
well. The safe harbor or confidentiality protects the employer so the 
employer does not run the risk of providing some information which ends 
up on the application, then is disclosed, that could be used against 
the employer in a variety of contexts.
  Now, it is possible that the amendment by the Senator from Texas 
could be adopted and that aspect could be cured in conference. But it 
is my thought, after reflecting on it considerably, that the issues 
ought to be weeded out and resolved in conference as opposed to having 
the adoption of the Cornyn amendment.
  The value of confidentiality to encourage the immigrant to make full 
disclosure, and the value of confidentiality that the employer has, 
outweighs the advantages which the Senator from Texas articulates. And 
when the immigrant is faced with a situation where the confidentiality 
ends at some point--it is hard enough for Senators and experienced 
lawyers to figure it all out, and expecting an immigrant to be able to 
figure it out--I think the consequence for the immigrant will be to

[[Page S5139]]

be hesitant and unwilling or chilled, if you will, to provide all the 
information.
  My sense is that our system will work better if there is no ambiguity 
or no uncertainties to the confidentiality being maintained throughout 
the entire process beyond when the application and appeals have all run 
out.
  But this is an important issue. I thank the Senator from Texas for 
focusing our attention on it. I do believe it is better addressed in 
conference.
  Mr. President, how much time remains on this amendment?
  The ACTING PRESIDENT pro tempore. The amendment's sponsor retains 
12\1/2\ minutes. The opponents retain 14 minutes.
  Mr. SPECTER. Mr. President, I had announced earlier that in the 
management of the bill we would stack the five votes we have remaining 
on the immigration bill. I think that is the most efficient way to 
handle the matter because we know when we have a 15-minute vote, and 5 
minutes more, they frequently extend far beyond that time, not wanting 
to cut off Senators.
  We had two Senators out last night. We went to about close to 30 
minutes, and I did not want to call for regular order. Evenings are a 
little more difficult. But it is very difficult to cut off Senators 
when the Senator is on the way. The Senator can be on the way for a 
very long period of time.
  But I cannot control the stacking of votes because it requires 
unanimous consent to set aside the Cornyn amendment before going to the 
next amendment. Anybody can object. So we are going to have a vote 
after the Cornyn amendment. We will then try to see if we cannot get 
consent to stack the remainder of the votes. But the earlier 
announcement that the votes would be stacked will not take place 
because objections have been raised to that procedure.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will take just a few minutes.
  Mr. SPECTER. Mr. President, may I, before the Senator from 
Massachusetts continues, ask that the proponent of the next amendment 
come to the--well, he will be in the vote, so I withdraw that 
suggestion. We will have just one vote.
  Mr. KENNEDY. Mr. President, just along those lines, I think our 
colleagues ought to be alerted we can anticipate a vote fairly shortly.
  Mr. President, just in response to my friend from Texas, he is 
familiar with the fact that we passed the Border Security Act in 2002. 
The idea was to understand everybody coming into this country, to know 
where they were, and when they were leaving. We have not completed that 
kind of circle, but we have made dramatic progress. As of now, every 
green card, every work permit, every visa is machine readable and 
biometric--every single one that we have working today. So this is a 
dramatic shift in terms of dealing with the issue of fraud, which has 
been talked about here.
  Now, in order for immigration reform--we have talked with security 
officials who have all told us it is in our interest, in our national 
security interest, to bring people out of the shadows. They have all 
indicated that. We have so many individuals here whose names we do not 
know. We do not know their locations. They are living in a shadowy 
world that can more often than not--or at least sometimes can--be 
connected with crime. And many of these people, obviously, want a 
different life and a different future.
  To be able to make that progress and isolate those individuals who 
pose a threat to us, our security officials who came before our 
committee said that a real confidentiality clause is necessary--
absolutely necessary--for the earned legalization to succeed, in order 
to have immigration reform. Current undocumented immigrants will have 
to be persuaded it is safe to come forward to an agency they have come 
to mistrust, and they will need to feel comfortable the information 
they provide on their applications about their histories, their 
employers, and their families will not be used against them or their 
loved ones.
  Churches, community agencies, and attorneys who will be helping 
people apply will also need confidence they are not exposing their 
clients to immigration enforcement by encouraging them to apply for 
legalization.
  I believe the change in the Cornyn amendment would make the 
confidentiality clause worthless. Hundreds of thousands of immigrants 
who qualify for earned legalization will likely be dissuaded from 
participating, undermining the effectiveness of our entire reform 
effort. And hundreds of thousands of immigrants would be encouraged to 
remain in the shadows rather than risk coming forward under these 
conditions.
  The confidentiality clause in the underlying bill does not protect 
criminals. On the contrary, the bill requires DHS and State to disclose 
all information--it is at the bottom of page 362 of the bill--unlike 
the provisions the Senator referred to in the Violence Against Women 
provisions. The penalties for the disclosure of information, and the 
exceptions: The Attorney General may provide, in the discretion of the 
Attorney General, the disclosure of information to law enforcement 
officials to be used solely for law enforcement purposes.
  Our legislation says:

       The Secretary of Homeland Security and the Secretary of 
     State shall provide the information furnished pursuant to an 
     application filed under [the] paragraph . . . 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. . . .

  Mr. President, I do not think you can do better than that. We are 
even stronger on this issue. I have mentioned the other reasons for it. 
I agree with the Senator from Texas. We have to put in place a very 
effective biometric system. We have a real downpayment for it. We want 
to strengthen that. But we are making very dramatic and significant 
progress, and we will continue to do so.
  We have indicated, in this most strenuous way, why we have drafted 
these provisions the way they have been drafted. We think they best 
serve the interests of the innocent and the prosecution of the guilty.
  The PRESIDING OFFICER (Mr. Ensign). Who yields time?
  The Senator from Texas.
  Mr. CORNYN. Mr. President, it really boggles my mind we are having a 
debate over such a commonsense and straightforward amendment coming up 
on the anniversary of 9/11. To say the Department of Homeland Security 
cannot share information about potential fraud and crime and 
potentially disclose organized criminal activity and potentially even 
terrorist activity because of the provisions of this underlying bill--I 
cannot believe we are having that debate. But we are.

  Hopefully, our colleagues will join us in accepting this amendment 
which will reconcile this bill with other provisions of the law that we 
have amended and reformed over the last few years, which have improved 
information sharing between our intelligence community and our law 
enforcement agencies, which have made us safer. I don't think it is any 
accident that while there have been terrorist activities taking human 
life in places such as Madrid and London and Beslan and other places, 
we have been fortunate enough to avoid another travesty such as 
occurred on September 11. Part of it is because of information sharing.
  This amendment would not deter any alien from applying for legal 
status. If we are going to say that once that application is denied for 
whatever reason that it can't be used to investigate potential crimes 
and fraud and potential terrorist links, that doesn't do anything to 
encourage or discourage people from coming forward. This is somebody 
whose application has already been denied. They already have come 
forward.
  If we are going to have any criteria at all for taking 12 million 
people and moving them from an illegal status to some sort of legal 
status, we ought to be willing to enforce that criteria. That requires 
access to information and facts that will inform whether or not an 
individual satisfies the criteria that Congress has put in place.
  I suggest to my colleagues that the American people are profoundly 
skeptical of taking 12 million people from undocumented or illegal 
status and all of a sudden putting them on a path to legalization and 
citizenship. That skepticism comes from many different directions. One 
of those is because they

[[Page S5140]]

saw the tremendous fraud associated with the 1986 amnesty. The language 
here is precisely the same as was contained in that legislation.
  What we are saying by refusing to adopt this amendment is, we haven't 
learned any lessons, either from the mistakes that were made in the 
1986 amnesty and the fraud that occurred in connection with that, or 
from the terrible tragedies of 9/11.
  There is not a lot more that can be said about it that we haven't 
already said. I hope my colleagues are listening. I hope they will 
consider this carefully. I hope they will consider the fact that all we 
are doing is something that is contained in established laws such as 
the Violence Against Women Act. This does not undermine the ability of 
people to take advantage of the benefits of this program. What it does 
is help make that program work, work for people who are actually 
qualified to receive the benefits of the program while eliminating 
those who are not and those who engage in fraud and criminal activities 
to facilitate the immigration into this country of people who are not 
legally authorized to be here.
  May I ask how much time I have remaining?
  The PRESIDING OFFICER. The Senator has 8 minutes 20 seconds.
  Mr. CORNYN. I will reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. How much time do I have?
  The PRESIDING OFFICER. The Senator has 7 minutes.
  Mr. KENNEDY. Mr. President, I am glad the Senator from Texas invited 
our colleagues to listen carefully. I hope they will listen carefully 
to what I am reading from the underlying bill. No matter how many times 
the Senator from Texas says he doesn't believe there will be reporting, 
prosecution, and cooperation between the agencies, I suggest that any 
of our colleagues who are in question read page 362 of the bill:

       Required disclosures--The Secretary of Homeland Security 
     and the Secretary of State shall--

  Not may, shall--

       provide the information furnished to an application filed 
     under the 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 an entity.

  I can't make it any clearer than that, with all respect. That was not 
the way it was done previously. That is the way it is now. It has been 
mentioned, let's have the Violence Against Women Act legislation. I 
have that in my hand. For our colleagues to understand, it says:

       The Attorney General may provide, in the discretion of the 
     Attorney General, for the disclosure of information to law 
     enforcement officials.

  We say ``shall provide.'' The Violence Against Women Act says ``may 
provide.'' We have a much stronger provision.
  We are not defending actions of the past. We are talking about 
learning from the past. We have. Tamper-proof documents, we are 
strongly committed to that, and fair and effective enforcement at the 
employer level and, when we discover criminal activity--lying, deceit--
on these applications, prosecution. But let's not wrap the innocent 
into that package as well.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I think we have said about all there is to 
say. Maybe we said it several times. I appreciate the Senator from 
Massachusetts pointing out page 362 of the bill. This is a voluminous 
bill, but my reading of this bill says that the section the Senator 
quoted only applies to the applicant and that application. In other 
words, if somebody fills out an application and is denied, then a 
criminal prosecution investigation may be had only against that 
applicant, but there are limitations which prohibit its distribution to 
third parties for purposes of investigating an organized crime 
syndicate or potentially terrorist links. There seems to be no 
commonsense reason why we would limit the availability of a document 
and that information, when it could well root out crimes involving 
hundreds and maybe even thousands of instances of fraud.
  I believe the amendment strikes a balance. It is not designed to 
undermine the compromise that we have heard so much about. Indeed, this 
is to make sure that the underlying bill actually has a chance to work 
and isn't undermined by the fraud that has been so well documented 
underlying the 1986 amnesty but, rather, to fight that fraud and help 
build public confidence that we are serious about making this work.
  Much of the problem with the 1986 amnesty was that it granted amnesty 
to 3 million people. The tradeoff was supposed to be effective work 
site verification to make sure that people who are qualified to work 
legally could work and those who were not could not and to sanction 
employers who cheat. But unless we have a system in place that will 
actually make it work, then all of the discussion about a comprehensive 
plan is a ruse. It will not work.
  While I do have some differences with the Senator from Massachusetts 
about what this comprehensive immigration reform plan ought to look 
like, I trust we will be able to work on that some more when we get to 
conference with the House. My goal is to actually make sure it will 
work. He and I share that common goal, I believe. The amendment I have 
offered helps make that more likely.
  I am prepared to yield back.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will make a brief comment. On page 119, 
immigration and visa fraud, it says:

       Any person who knowingly--completes, mails, prepares, 
     presents, signs, or submits any document knowing it to 
     contain any materially false statement or representation [is 
     subject to prosecution].

  It continues on page 120:

       . . . transfers or furnishes an immigration document to a 
     person without lawful authority for use . . .

  Any lawyer or social service agency, advocacy group, or notary, or 
any other agent who assists an immigrant in making a fraudulent claim 
is subject to criminal prosecution and also unprotected by 
confidentiality language.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, the provisions in the underlying bill are 
the same as those contained in the 1986 act that was the subject of so 
much fraud. I suggest that while we are all entitled to our own 
opinion, we are not entitled to our own set of facts. The facts are 
that the same provisions in this underlying bill are in the 1986 act. 
We can do better, and we can make this work. We can avoid the 400,000 
fraudulent applications that tarnished the concept behind the 1986 
bill.
  I see the Senator from Alabama. May I inquire how many more minutes 
we have on this side?
  The PRESIDING OFFICER. The Senator from Texas has 4 minutes 
remaining.
  Mr. CORNYN. I am prepared to yield to the Senator from Alabama 3 
minutes and retain 1 minute as the balance of my time.
  The PRESIDING OFFICER. The Senator from Alabama is recognized for 3 
minutes.
  Mr. SESSIONS. Mr. President, I thank the Senator from Texas for his 
exemplary and hard work on this legislation. From the beginning, had we 
listened to him, we would not be in the fix we are. With regard to this 
amendment, I have to tell my colleagues, it is a defining amendment. It 
defines us as a nation, as a Senate.
  The question is, Are we going to continue to allow lawlessness to 
operate at the border? If we don't pass the Cornyn amendment, we will 
be saying we have no more intention to see that we have lawfulness in 
the immigration system in the future than we had in the past.
  I was a Federal prosecutor for almost 15 years. What do you mean you 
can file a document and Federal investigators can't look at it to 
determine whether you committed fraud when you filed it? They are not 
going to be looking at people in the millions who are going to file to 
try to find some innocent mistake. How silly is that? They are not 
going to be able to prosecute blatant fraud, frankly, in large numbers. 
But we don't want them to be incapable of doing so. We don't want to 
set a policy that would prohibit criminal investigators of the United 
States

[[Page S5141]]

to examine an application for amnesty under this bill and not be able 
to prosecute, if it has fundamental fraudulent statements in it, or 
even be able to use it to build some larger investigation that may 
relate to coyotes or organizing rings. That is what we are most likely 
to come up with, in my experience.
  Most likely they will be investigating rings of illegal aliens who 
have used false identification or come across the border illegally. And 
you are trying to put that together, and you go back and look at these 
applications which will be critical in establishing that case. They are 
barred from doing that. This is really a big deal because one of the 
weaknesses I have seen in our whole approach to immigration and, 
frankly, other issues is that we as a nation are becoming so soft that 
we are incapable of drawing a line anywhere. We are incapable of 
drawing a line anywhere. So the proponents of this legislation are 
saying it is somehow wrong that we could hold people to account if they 
file an application to become a beneficiary of amnesty. We cannot even 
investigate that and prosecute them, or prosecute other people who 
brought them in illegally in some sort of conspiracy, and deny the 
investigators that.

  I thank the Senator from Texas, who is a former attorney general and 
a former justice on the Texas Supreme Court. We should listen to him.
  I yield the floor.
  Mr. KENNEDY. Mr. President, I am prepared to yield back our time. I 
think all time has expired.
  The PRESIDING OFFICER. There is 30 seconds.
  Mr. CORNYN. We will yield back our time.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment of the Senator from 
Texas.
  The clerk will call the roll.
  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) is necessarily absent.
  The PRESIDING OFFICER (Mr. Chambliss.) Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 49, nays 49, as follows:

                      [Rollcall Vote No. 151 Leg.]

                                YEAS--49

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Dorgan
     Ensign
     Frist
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--49

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brownback
     Cantwell
     Carper
     Chafee
     Clinton
     Dayton
     DeWine
     Dodd
     Durbin
     Feingold
     Feinstein
     Graham
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Specter
     Stabenow
     Wyden

                             NOT VOTING--2

     Enzi
       
     Rockefeller
  The amendment (No. 4097) was rejected.
  Mr. McCAIN. Mr. President, I move to reconsider the vote.
  Mr. KENNEDY. Mr. President, I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, we have an amendment, and I think it is 
that of our friend and colleague from New Mexico. So we want to let our 
colleagues know there is 40 minutes on this, and we expect to have a 
rollcall vote on this next amendment, just for the awareness of our 
colleagues at this time.


                           Amendment No. 4131

  Mr. BINGAMAN. Mr. President, I call up amendment No. 4131 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman] proposes an 
     amendment numbered 4131.

  Mr. BINGAMAN. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To limit the total number of aliens, including spouses and 
 children, granted employment-based legal permanent resident status to 
                    650,000 during any fiscal year)

       On page 316, strike lines 1 through 5, and insert the 
     following:
       ``(2) Visas for spouses and children.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     immigrant visas issued on or after October 1, 2004, to 
     spouses and children of employment-based immigrants shall not 
     be counted against the numerical limitation set forth in 
     paragraph (1).
       ``(B) Numerical limitation.--The total number of visas 
     issued under paragraph (1)(A) and paragraph (2), excluding 
     such visas issued to aliens pursuant to section 245B or 
     section 245C of the Immigration and Nationality Act, may not 
     exceed 650,000 during any fiscal year.
       ``(C) Construction.--Nothing in this paragraph may be 
     construed to modify the requirement set out in 245B(a)(1)(I) 
     or 245C(i)(2)(A) that prohibit an alien from receiving an 
     adjustment of status to that of a legal permanent resident 
     prior to the consideration of all applications filed under 
     section 201, 202, or 203 before the date of enactment of 
     section 245B and 245C.

  Mr. BINGAMAN. Mr. President, the purpose of my amendment is to put 
some type of limits on the number of new legal permanent residents we 
approve each year in this country, and that is the question. It is sort 
of a philosophical question and a practical question: Should we limit 
this number or should we leave it unlimited as the current bill 
provides?
  We have two large categories under which we approve new legal 
permanent residents in this country. Let me put one chart up here to 
show these two categories.
  One is called family preference. That is essentially where if a 
person is already a legal resident in the United States and wants to 
bring in family members, that is family reunification, and we think 
that is a good thing and we provide in the law so that can occur. Each 
year, there can be 480,000 people who gain legal permanent residency in 
our country under that proposal, and that is right here in the bottom 
half of this chart.
  The other main category we use for establishing legal permanent 
residency is what we call employment-based, and that is where an 
employer essentially brings someone to this country to work, along with 
their family. We have always had a limit on that. The limit in the law 
today is 140,000.
  Let me go through some of the history of where we have been on this 
issue.
  In the law that is applicable today, we allow 140,000 legal permanent 
residents to be approved each year under the employment-based system. 
The bill Senator Kennedy and Senator McCain proposed last May, on which 
I compliment them--they put a great deal of work into it--that bill 
said, let's increase that number from 140,000 to 290,000, and I think 
that makes some good sense. The 290,000 was to include the workers and 
their families, just as current law was to include the workers and 
their accompanying families.
  Then, 2 months ago, when the Judiciary Committee began its 
deliberations, the chairman presented his chairman's mark, and it said: 
OK, the 290,000 is a good number, but let's only apply it to workers, 
and then any accompanying family will be extra and not count. So on 
this chart, you can see that this area at the top is the estimated 
number of family that might actually come to the country.
  Now, the estimate is that there would be 1.2 family members 
accompanying each worker, and that estimate came from the Congressional 
Research Service. They said they didn't

[[Page S5142]]

really know because it is a very different mix of people we would have 
immigrating into this country under this legislation than under current 
law. But historically, it has been 1.2 people per employee, so let's 
just assume that, and that gets you up to 638,000, was the 
Congressional Research Service's estimate of the number of employment-
based visas that would be offered under Senator Specter's chairman's 
mark in the Judiciary Committee.
  Well, then, of course, we had some additional deliberations here, and 
we now have the Hagel-Martinez bill. The Hagel-Martinez bill said the 
290,000 figure is wrong; let's go to 450,000. And of course the 
Congressional Research Service said, OK, let's make the same 
calculation here: 1.2 family members will accompany each of those 
450,000 workers, so you add those in and that gets you to 990,000. That 
is for the first 10 years. After the first 10 years, this legislation 
calls for that number to drop back down.
  At this point, let me pause and make a point about this assumption 
which is built in here. Let me show one other chart. This is a very 
different group of immigrants we are approving to come into the country 
under this legislation than is currently approved under existing law. 
If, in fact, there are more family members who accompany these workers, 
then these numbers go up pretty dramatically. If, for example, instead 
of 1.2 people--a spouse and two-tenths of a child--coming in with each 
worker you had a spouse and 1 child coming in with each worker, then it 
is 1,350,000. If, in fact, there were 2 children, the spouse and 2 
children, it would be 1.8 million people under the assumptions that are 
built into this legislation.
  So all I am saying is, we don't know. Under the legislation pending, 
we don't know whether there are going to be 500,000 employment-based 
visas issued or a million employment-based visas issued for legal 
permanent residency or 1.5 million. I think we ought to fix that. My 
amendment says, let's pick a number.
  Let's go back to this other chart, and I will show you how we came up 
with the specific number in the amendment. The number in the amendment 
tries to be a rounded-off number from what the Judiciary Committee 
started with and says, look, if they had kept a cap in the Judiciary 
Committee, as I believe they should have--we have had a cap in this 
country, a cap on the number of legal permanent residents 
historically--if we kept a cap, then it should be about 650,000. That 
is the estimate we came up with.
  Some people say that is a very high number. That is a high number. 
That is over four times what we currently permit. It is more than twice 
what Senators Kennedy and McCain recommended in their legislation, the 
McCain-Kennedy bill or Kennedy-McCain bill. We have tried to be 
generous in this and say we should have a lot of new immigrants 
transferring over to legal permanent status, but we should have some 
limit on those.
  The real question for each Senator is going to be whether you agree 
there ought to be a cap. Do you agree there ought to be a limit? I 
believe very strongly we should have a limit. I believe the limit we 
have chosen here is a generous one. To leave this bill with no cap at 
all would be a mistake. To send this bill out of the Senate without 
knowing whether we are increasing the legal permanent residents under 
the employment-based system 4 times or 8 times or 12 times, which is 
very possible, I think would be a very big mistake. So we need to get 
some certainty into this. We need to try to be somewhat prudent in what 
we are doing.
  Let me just mention one other thing. Mr. President, how much time 
remains?
  The PRESIDING OFFICER. Twelve minutes, twenty seconds.
  Mr. BINGAMAN. Mr. President, let me just mention that this cap I am 
trying to put on is just for one of the categories vailable for people 
who want to become legal permanent residents, and I need to underscore 
that.
  There is still the opportunity to become a legal permanent resident 
as part of this family preference category. That is 480,000 per year, 
and we are not in any way affecting that with my amendment. There is 
still the opportunity, if you are already here in this country and you 
have been here 2 years under this legislation and you are undocumented, 
you can go through the earned legalization provisions in the bill and 
become a legal permanent resident. We are not in any way affecting any 
of that or trying to limit that. If you are an agricultural worker, 
there are 1.5 million blue card agricultural workers who are provided 
with an opportunity to become legal permanent residents in this bill, 
but we are not in any way affecting that. There are various categories 
in the bill for highly skilled workers who are able to become legal 
permanent residents without being subject to any numerical cap. I have 
supported those provisions. I am not suggesting we put a cap on those 
provisions. These are highly skilled workers, in many cases people 
involved in science and engineering and other skills that are important 
to our economy.
  Of course, there is provided in the bill an additional estimated 
141,000 visas which have been recaptured from the last 5 years because 
they were unused. We are not doing anything to affect that. That is 
fine. I have no problem with that.

  All we are saying is that this large category that we call 
employment-based legal permanent residents, we should have an annual 
limit on that. We have had one for over 100 years. We have always 
limited that. Every country in the world limits that. We should not be 
the only exception in the world to this general, prudent rule as I see 
it.
  We can argue about exactly what the right limit ought to be, but I 
don't think we should give up on having any cap at all, and that, 
unfortunately, is what the present bill provides.
  How much time remains, Mr. President?
  The PRESIDING OFFICER. There remains 9 minutes and 50 seconds.
  Mr. BINGAMAN. I see my colleague from Arizona wishes to speak. I 
yield the floor and reserve my time.
  The PRESIDING OFFICER. Who seeks time in opposition?
  Mr. McCAIN. Mr. President, I ask that I be allowed 5 minutes in 
opposition.
  The PRESIDING OFFICER. The Senator from Arizona is recognized for 5 
minutes.
  Mr. McCAIN. Mr. President, I rise, obviously, in strong opposition to 
the amendment. The Senator from New Mexico just made my arguments for 
me. He wants us to be like other countries in the world--maybe France, 
maybe Germany, maybe those countries where there has been no 
assimilation, no ability to become part of the society and therefore 
they have ended up with serious situations--riots, car burnings. It is 
clear he wants to be like other countries in the world.
  He also made my argument in that he pointed out there are lots of 
ways for highly skilled workers, highly educated people to come in. 
There is virtually no restraint on them. So he is going to focus on the 
lower skilled workers. Those are the ones on whom we are going to put 
the cap. Right.
  The overwhelming number of people who have come to this country have 
started out as low-skilled workers, I remind my colleague from New 
Mexico, and have worked their way up the economic ladder. If you are 
rich and educated and highly skilled, come on in. There is no problem 
with you coming to the United States of America. But if you are low 
skilled, we are going to make sure that not only you but your children 
are not admitted.
  My parents had three children. I am glad we didn't have that kind of 
proposal for my family--either I or my sister or my brother may have 
stayed someplace else, if my parents were immigrants. This is against 
family. This is against everything that America stands for.
  I point out to my colleagues, this is just one in a series of 
amendments that basically would restrict people's ability to come to 
this country to not only work but also, over time, raise families and 
become part of our society. The Bingaman amendment clearly 
discriminates against people who are low skilled. He wants us to be 
like every other country in the world. I tell the Senator from New 
Mexico, I don't want America to be like every other country in the 
world. He made my argument against his own amendment. I don't want us 
to be like that.
  Mr. BINGAMAN addressed the Chair.
  Mr. McCAIN. Mr. President, I believe I have the floor. If the Senator 
from

[[Page S5143]]

New Mexico--by the way, this amendment is opposed by the Chamber of 
Commerce and the majority of the unions and certainly by every major 
Hispanic and immigrant group in the United States of America. The 
Senator from New Mexico may prevail. But lately these amendments have, 
obviously--they have a tenor and an effect that I don't think is 
healthy for this country and I don't think is good for America.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. McCONNELL. Mr. President, if the Senator will yield for just a 
moment, I yield my 1 hour postcloture to the Senator from Pennsylvania, 
Mr. Specter.
  I thank my friend.
  The PRESIDING OFFICER. The Senator has that right. The Senator from 
New Mexico.
  Mr. BINGAMAN. Mr. President, I was seeking recognition to ask the 
Senator from Arizona--he says this is unfair to low-income, low-skilled 
workers because we are putting a cap of 650,000 on this employment 
base. His proposal, the McCain-Kennedy bill, limited it. It had a cap 
of 290,000. I am proposing more than twice the admissions under the 
employment-based system than his proposal had. I don't understand why 
mine is unfair to anybody whereas his 290,000 was appropriate. He was 
proposing 290,000 as a limit on the number of people who could 
transition to legal permanent status, and that is when the guest worker 
program was being proposed at 400,000 per year. We have now reduced the 
guest worker program to 200,000 per year, and I am saying legal 
permanent residents should not exceed 650,000 per year under the 
employment-based system, in addition to the family preference, in 
addition to all the other ways that you can become a legal permanent 
resident. So I don't think this is that unfair. It is more than twice 
what he and Senator Kennedy proposed and more than four times the 
current law.
  But it does impose some cap. I understand there are people, 
particularly inside the beltway, who do not want any cap. A lot of the 
immigrant groups have indicated very clearly they are opposed to any 
cap, any limit in this category. Of course, the Chamber of Commerce is 
opposed to any limit in this category. They would prefer to be able to 
bring in anybody without limit. I think that is not a responsible 
course, and for that reason I have offered this amendment.
  I reserve my time.
  Mr. KENNEDY. The answer is very simple, I say to the Senator. We had 
one figure when we came out of committee and then we had the Martinez 
legislation which forced individuals to go on back. We want to make 
sure the people who have been working here from 2 to 5 years would be 
able to go back and then come back in employment. So we increase that.
  I will just continue----
  Several Senators addressed the Chair.
  Mr. KENNEDY. I just want to make another point. Here is the 
legislation, the immigration act. It points out where the priorities 
for the green cards are. If the Senator offered that amendment and had 
a fair distribution of the green cards, I would support him. But he 
does not. Under this he gives the priority to workers, aliens with 
extraordinary ability. That is No. 1. Outstanding professors and 
researchers, they will get their green cards; certain multinational 
executives and managers, they are going to get their green cards; 
aliens who are members of professions, they are going to get their 
green cards; skilled workers and professionals, they will get their 
green cards. But the people we have talked about, to try to make this 
kind of balance, the ones who have been coming across the border, the 
ones for whom we are trying to get a legal system so they can come 
through as guest workers, under this they are the ones who will be left 
out.
  Fair ought to be fair. We have tried to work with the Senator from 
New Mexico to get a fair distribution so people will be treated fairly, 
and we have not gotten it. This is why we have this dilemma.
  If you wanted to try to work with us to try to get a fair 
distribution--but that has not been the case. We tried to do that. As a 
result, the point the Senator from Arizona makes has credit.
  I will withhold our time.
  The PRESIDING OFFICER. Who seeks time? The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, can I respond? First, on the last point 
Senator Kennedy makes about fair distribution, I am accepting the 
distribution that is in the Hagel-Martinez legislation, the 
distribution that was in the chairman's mark, the distribution that was 
in the McCain-Kennedy bill. I am not changing that in any respect. I am 
not proposing to make any change in that. Whatever the distribution was 
that they thought was appropriate, that is exactly what I accept. My 
amendment doesn't affect that.
  Let me make this other point because Senator Kennedy made a point 
that somehow or other the Hagel-Martinez legislation caused the need 
for no cap in this area, and for the very large number we are, in my 
amendment, excluding--we are saying, in calculating this 650,000, we 
are excluding such visas as are issued to anyone under this 245-B and -
C program, which is all of those people who are going to come in under 
this deferred mandatory departure system, the people who have been here 
at least 2 years but not a full 5 years, or not more than 5 years.
  We are saying let's not count those people. Those folks are home 
free. Anyone who has been here over 2 years is home free. They are on 
their way to legal permanent status and I have supported that aspect of 
the bill and I continue to support that aspect of the bill.
  All I am saying is that once you exclude that group and say, OK, they 
are home free, then you still have the question: How many new 
employment-based legal permanent residents are we going to admit each 
year? Senator McCain, Senator Kennedy said it ought to be 290,000. I am 
saying let's make it 650,000, but let's put on a cap. Let's not leave 
it the way the bill now stands, which is totally uncontrolled.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator controls 5 minutes 45 seconds.
  Mr. BINGAMAN. Mr. President, I will reserve my time at this point.
  Mr. KENNEDY. I will just take a minute.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. The problem is that there is a limitation with the cap. 
Under the existing legislation the children and the wives were not 
counted. You are counting them now. The way the law works is going to 
be the squeeze. That is the effect. If the Senator wanted to--we tried 
to work this out. The Senator can say we are not changing anything, 
but, yes, we are changing it. We are changing it because you are moving 
numbers around. People will be able to come into this country. There 
will be a job out there, a person will be able to apply for it and come 
in here, but they can't get the green card because we only have a 
certain number of green cards. So that person will not be able to get 
the green card. So they will never be able to make an application for 
permanent residency. That is the effect of it.
  If the Senator wanted to work with us--which we indicated we were 
going to--and put in that kind of cap and work this around so we could 
still maintain that aspect in the legislation, we were glad to do it. 
But once you have that limitation which is in effect now--is in effect 
now--this skews this whole process in terms of green card and 
normalization to the highest skilled individual and says to those 
people we have been trying to deal with--there is pressure on the 
border. We spend an enormous amount of time with guest workers saying: 
You are going to be treated with respect, no Braceros. You are going to 
work hard for 4 years, and there is going to be a green card out there, 
and you can work 5 more years, work hard, play by the rules, pay your 
taxes, and get citizenship.
  Can the Senator give us assurance that under his proposal someone who 
comes as a guest worker and works 4 years is going to be able to get 
the green card and go for citizenship?
  Mr. BINGAMAN. Mr. President, I am glad to respond. I can't give 
assurance of that. But I can say they are much more likely to get the 
green card under my proposal than they were under McCain-Kennedy. 
McCain-Kennedy

[[Page S5144]]

contemplated 400,000 guest workers every year coming in and said the 
total number of green cards we are going to issue to these people is 
290,000, including family.
  What I am saying is, we should increase that to 650,000, including 
family, since we have half as many guest workers coming in each year 
under the bill that we have agreed to on the Senate floor.
  I think my proposal, frankly, is much more generous in giving green 
cards to people who have come here legally than was McCain-Kennedy. It 
is more than twice as generous. It is more than four times as generous 
as current law. But I am saying we ought to have some cap. We should 
not just leave it uncapped entirely.
  Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from New Mexico has 5 minutes 35 
seconds.
  Mr. BINGAMAN. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who seeks time? The Senator from South 
Carolina.
  Mr. GRAHAM. Mr. President, I think this has been a very good debate. 
Why is the Chamber opposed? Why are the groups backing the bill 
opposed? Do they want just anybody and everybody? Some probably do. I 
don't believe that is what motivates the authors of the bill.
  We are trying to marry up needs, and the numbers we are picking do 
change because of the politics and because of projected needs.
  What I would say to my good friend from New Mexico is, if you think 
you are helping, you are not. I am not questioning your motives. I will 
never question the motive of any Senator who votes differently than I 
do because they are all intelligent people, and I don't claim to know 
more about any particular area than any other of my colleagues. But 
what we are doing is trying to create order out of chaos because we 
live in a chaotic world when it comes to immigration. The numbers 
change every time the bill changes.
  Hagel and Martinez was a new proposal, a new idea that broke people 
into different groups. The 2-to-5 year group of people was treated 
differently. Senator Bingaman was right, we tried to exclude that. 
Whether it is 290,000 or 600,000--whatever, what I don't want to do is 
artificially deny my country the ability to assimilate hard-working 
people I think we need.
  The fundamental disagreement between me and the Heritage Foundation 
and Senator Bingaman is I believe that immigration is going to be 
regulated by the needs of our economy. When our economy gets to the 
point that we can't tolerate more people, the numbers are going to 
change. The Heritage Foundation assumed escalations in numbers apart 
from supply and demand. To my good friend from New Mexico, the 11 
million to 12 million--whatever number it is--have already been 
assimilated into our workforce without damage to our workforce because 
we have historically low unemployment, and the economy is humming, from 
a Republican sound bite point of view. This is about as good as it will 
ever get.
  When you change the formula, when you introduce the family element of 
having to choose between family status and work status in a different 
kind of way than the base bill, then you are going to create a chaotic 
political event, a chaotic assimilation event.
  What I am trying to urge my colleagues to do is let us not create 
disorder in a way that just doesn't reflect what we want to be as a 
society. We need the workers. I think we need more than 290,000. But 
when you start looking at counting the children and family members and 
they are not workers, you are hurting our business community, and you 
are putting a burden down the road on people. That just really makes me 
feel uncomfortable.
  I respect Senator Bingaman's approach to this problem. He has limited 
the number of people that can come in. I fundamentally disagree with 
him. I think 5 years from now we are going to need more people, not 
less. Japan is our model in this regard. The Japanese demographics have 
changed. There are more older people there than younger people. They 
have a closed society. They don't assimilate people from outside their 
culture, and their gross domestic product has slowed down. Their 
workforce needs are being unmet.
  Whatever number we pick--and we can all talk about what the right 
number is--to make this change at this stage in the proceedings to 
introduce family status versus work status is a new concept, something 
we haven't all thought about and worked through before. That does more 
harm than good.
  I hope we can march forward, work with the numbers based on what we 
think the economic needs of the country will be in a way that is fair 
to people.
  We have changed the bill fundamentally from Hagel-Martinez. We are 
trying to accommodate business needs; we are trying to accommodate the 
needs of our society in terms of people violating the law.
  But this idea that we are going to flood America with people who 
can't add value to America, my colleagues, is contrary to what this 
bill is about.
  If you come here under this bill, whether you are a future flow or 
you are with the 11 million, you will have to prove to us over time 
that you are worthy of staying here. You will have to earn your way 
into working in this country and staying in this country. You are not 
getting anything for free. As a matter of fact, the future flow people 
and the 11 million people are going to be asked to do more than any 
generation that has ever come to this country.
  I think there is a point in time where we need to stop and try to 
have assimilation rules that bring about order, not chaos.
  I hope that we will reject this attempt to change the bill in the 
eleventh hour because it will create political and economic chaos.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I yield to the Senator from North 
Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I have great respect for the Senator from 
South Carolina. But when he says to the Senator from New Mexico that 
you think you are helping and you are not, I come down on the other 
side. I am one of those people who has not decided how I am going to 
vote on this final bill. But this will help make up my mind. If there 
are no caps, that would have significant bearing on how I might vote on 
final passage.
  I have great respect for those who have managed this bill. I think 
this bill has been improved substantially since it came to the floor. 
We have actually gone through a legislative process for once around 
here. For the first time in a long time, we are actually legislating. 
This bill has been improved as a result.
  The provisions to strengthen and protect the border have been 
dramatically improved.
  The credibility of the plan to deal with the 11 million or 12 million 
illegal immigrants that are already here has been substantially 
improved. This bill is still very imperfect.
  I want to conclude by saying that the Senator from New Mexico is I 
think casting a lifeline out to sponsors of this bill. If this bill has 
no caps, I think you will find a strong public reaction against this 
bill.
  The PRESIDING OFFICER. Who seeks time?
  Mr. BINGAMAN. Mr. President, I yield 2 minutes to the Senator from 
Alabama.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, once again Senator Bingaman is correct 
and has a very, very important amendment.
  My staff was the first to alert the country to the huge numbers that 
are involved in this bill and the extraordinary increases in legal 
immigration that will occur. We ran the numbers also.
  Senator Bingaman's previous amendment helps fix some of those 
problems. This one will further help.
  Under current law for employment-based green cards, 140,000 people 
are allowed in the country each year, and spouses and children count 
against that 140,000. Under the bill that is on the floor today, that 
number goes to 450,000, and spouses and children do not count. 
Utilizing the numbers of the Congressional Research Service, as the

[[Page S5145]]

Senator said, 1.2 children and a spouse per worker coming in, that 
would total 990,000 under this simple provision alone. It goes from 
140,000 to 990,000. It could be more that come in under the spouse and 
family provisions. Let's just say go to 650,000. That is about four 
times the current rate.
  How reasonable is that? I have not seen any economist, I have not 
seen hearings in which we have ever had official testimony that 
increasing by fivefold or sixfold the amount of legal immigration in 
this country is the right approach to take. So we don't have a 
necessary basis to assert this.
  There is not really a tenor here. It is not a question of evocative, 
emotional feelings. It is a question of what does this bill do. It is 
fatally flawed, and the Senator is correct.
  I support his amendment.
  The PRESIDING OFFICER. Who seeks time?
  Mr. BINGAMAN. Mr. President, how much time remains on the two sides?
  The PRESIDING OFFICER. The Senator from New Mexico has 1 minute 56 
seconds, the Senator from Massachusetts has 7 minutes 20 seconds.
  Mr. KENNEDY. Mr. President, just so that our colleagues and friends 
understand exactly what we have done over the course of the development 
of this legislation, we have increased dramatically opportunities for 
high-skilled people to come here to the United States, probably two or 
three times, and the best estimate is about 600,000. That has been 
increased dramatically.
  Under the basic immigration law, the people who get the first crack 
at the green card--what is the green card? The green card is the path 
towards citizenship. That really is key in terms of their future and 
their family's future.
  Under existing law, of all the green cards that are going to be 
available, 70 percent of those are going to go to the high skills and 
only 30 percent to what I call the low skills.
  We have recognized in the development of the legislation the pressure 
that is on the border, people coming across the border illegally, the 
pressure that is on companies that need the unskilled individuals to 
work in American industry for jobs that virtually no Americans will 
take. So we set up the process. They have to go out and ask. Americans 
have to advertise for those jobs and indicate what the pay will be. If 
they can't get it, they are able to bring in a foreign worker.
  In this legislation, since we have found that farm workers have been 
so exploited over the period of the past we have given the assurance 
that we are going to have a tamper-proof card. They will able to come 
here and be able to be treated with respect, with decent wages and 
decent working conditions.
  We have put into effect a program which will enable enforcement in 
the legislation for employers. We know that there are demands for these 
low-skill workers. That is what we have done. That is the pressure at 
the border--for people who want to come here and be part of the 
American dream and provide for their family.
  We said to the lower-skilled individuals that we are going to treat 
you the same as the higher-skilled individuals because we believe in 
equity and fairness. We value the work of lower-skilled persons. We 
value the work of minimum-wage workers as we do the presidents of 
universities. That is an essential part of our country and our system. 
They provide indispensable work.
  We said to them, Look, you come to the United States as a temporary 
worker; you work hard for 4 years. Then you have the opportunity to get 
a green card; 5 years later, if you pay your taxes and behave yourself, 
you can earn your citizenship. But they have to be able to earn the 
green card.
  With the numbers that have been increased over the course of the 
debate on McCain-Kennedy, the effect of this is going to eliminate the 
possibility also of those low-income people to be able to obtain a 
green card over the time that they are here in the 6-year period.
  That is effectively capping what you do. We tried to work out with 
the Senator from New Mexico a way to kind of deal with this disparity 
so we could have a fair distribution. We haven't been able to do that. 
But what we have done effectively is a dramatic alteration and change 
in this bill. At the end of the day there will not be the opportunity 
nor will we be able to represent the guest workers when they come to 
the United States. After 6 years, you have no alternative but to return 
home.

  I know that is not the intention of the Senator from New Mexico. But 
that is the effect of his amendment on this legislation.
  As I said to the Senator from New Mexico, we tried over the course of 
yesterday to say, OK, I understand the appeal of trying to get a 
definitive number of people, including children. It always involves 
some give-and-take. Some families have larger numbers of children than 
others, and we have always tried to be responsive to these family 
needs. We were trying to work out a process so that would not happen.
  The Senator from New Mexico points out that there is a difference in 
the underlying bill. Our underlying bill was changed both in the 
Judiciary Committee and on the floor. One of the principal reasons it 
changed on the floor is because we took the Martinez-Hagel amendment 
that said we are going to treat people who are here 5 years differently 
than we are going to treat the people that are here longer. Those who 
are going to be here only for 2 years are going to be deported. But 
they will know there is a guest worker program out there. If they want 
to go out and become a part of a guest worker program, they can find 
ways to be able to do it, play by the rules and be able to probably 
find a way to come back in and do it legally.
  Those who are here between 2 and 5 years are going to have to be 
certain of the other requirements. They will have to go back to the 
port of entry and come back in--and they are treated differently.
  I suggest the absence of a quorum, and I ask unanimous consent that 
the time not be charged.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill 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.
  Mr. SPECTER. Mr. President, I regret being absent for part of this 
debate on the issue, but the Judiciary Committee has been meeting in a 
rather heated session to decide what to do about getting information 
from the telephone companies on the NSA program. I want to comment very 
briefly in opposition to the amendment by the Senator from New Mexico.
  This amendment will substantially limit the ability of members of a 
family to accompany those who come into the United States and take jobs 
where they will be productive. I believe having family present is a 
very high value. This amendment, in putting a cap on, leaving no 
flexibility for family members to accompany the immigrant, is just 
basically a bad idea.
  We have sufficient room to accommodate the immigrants who are 
permitted to come in under the guest worker program, and accommodating 
the guest worker ought to include their family. They ought not to be 
separated from their family. We ought not to have a statute on this 
important subject which has that very undesirable family result.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I understand all the time has expired. We 
ask for the yeas and nays on the Bingaman amendment.
  The PRESIDING OFFICER. The Senator from New Mexico has 1 minute 54 
seconds remaining.
  Mr. KENNEDY. Excuse me. I apologize.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Thank you, Mr. President.
  Let me respond to that point which was just made by the chairman of 
the Judiciary Committee. There is nothing in my amendment that limits 
the ability of families to accompany workers. All my amendment does is 
to say there should be a cap on the total number of workers with 
accompanying family, just as there is today, just as there was under 
the McCain-Kennedy proposal. We are saying there should be some limit. 
It should not be open-ended, as the current bill pending on the Senate 
floor provides.

[[Page S5146]]

  We are saying this limit should be 650,000. Now, why did we choose 
that? Because that is what the Congressional Research Service says they 
estimated would actually be happening under Chairman Specter's proposed 
mark to the Judiciary Committee when they started. To do something 
other than what we are proposing in this amendment is to leave it 
totally unknown as to how many people we are going to have coming in 
under this employment-based legal permanent residency program, how many 
green cards we are going to be giving out. It could be 500,000. It 
could be 1 million. It could be 1.5 million. This is every year I am 
talking about. That is not an acceptable arrangement.
  Now, I want to make clear this one point, which I said before; that 
is, this amendment in no way limits the number of people who can come 
in and become legal permanent residents under the family preference. 
That is 480,000. It does not affect the number of people who can have 
their situation, their status changed under the undocumented earned 
legalization provisions. That is 11 or 12 million. It is left alone. It 
does not affect the 1.5 million blue card agricultural workers. It does 
not affect the shortage occupation groups and other high-skilled 
workers. It does not affect the 141,000 visas that we are bringing back 
from the last 5 years.
  This amendment will improve the bill. It is not an effort to 
undermine the bill. It is an effort to improve the bill. I urge my 
colleagues to support the amendment.
  The PRESIDING OFFICER. All time has expired.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the Feingold 
amendment and debate precede the Sessions amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, so that our colleagues will know the 
schedule, Senator Byrd has asked to speak to the body following this 
vote on his 69th wedding anniversary. He will be recognized for that 
purpose.
  I yield the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, I thank the distinguished Senator. I want to 
do that at a time that will accommodate him and the Senate. So if the 
Senator would let me know right now, if he might, when might be the 
best time to accommodate him and the Senate.
  Mr. SPECTER. Mr. President, I thank the distinguished Senator from 
West Virginia. We will see if we can find a more convenient time.
  Mr. BYRD. I thank the Senator.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the Bingaman amendment.
  Mr. SANTORUM. Mr. President, 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.
  The bill 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) is necessarily absent.
  The PRESIDING OFFICER (Mr. Graham). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 51, nays 47, as follows:

                      [Rollcall Vote No. 152 Leg.]

                                YEAS--51

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Biden
     Bingaman
     Bond
     Boxer
     Bunning
     Burr
     Byrd
     Carper
     Chambliss
     Coburn
     Cochran
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Feinstein
     Grassley
     Hutchison
     Inhofe
     Isakson
     Jeffords
     Johnson
     Kyl
     Lincoln
     Lott
     Mikulski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Roberts
     Santorum
     Sessions
     Shelby
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich

                                NAYS--47

     Akaka
     Bennett
     Brownback
     Burns
     Cantwell
     Chafee
     Clinton
     Coleman
     Collins
     Dayton
     DeWine
     Durbin
     Feingold
     Frist
     Graham
     Gregg
     Hagel
     Harkin
     Hatch
     Inouye
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Murkowski
     Murray
     Obama
     Reid
     Salazar
     Sarbanes
     Schumer
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Warner
     Wyden

                             NOT VOTING--2

     Enzi
       
     Rockefeller
  The amendment (No. 4131) was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mr. BINGAMAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. KENNEDY. Mr. President, we are making progress. I see the Senator 
from Wisconsin on his feet. He has an amendment. We have two amendments 
following that. Then, hopefully, we will be ready for final passage. I 
understand we have an hour of time evenly divided.
  Mr. FEINGOLD. Mr. President, I hope it will be shorter, but it 
depends on the response.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.


                           Amendment No. 4083

  Mr. FEINGOLD. Mr. President, I call up amendment No. 4083.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold] proposes an 
     amendment numbered 4083.

  Mr. FEINGOLD. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To strike the provision prohibiting a court from staying the 
             removal of an alien in certain circumstances)

       On page 167, strike lines 17 through 20.

  Mr. FEINGOLD. Mr. President, this amendment will ensure that asylum 
seekers, victims of trafficking, and other immigrants are able to 
secure meaningful judicial review of removal orders. It would strike 
from the bill a provision that would have the really absurd result of 
making it harder in many cases for an immigrant to get a temporary stay 
of removal pending appeal than to actually win on the merits of the 
case.
  Before I go further, I thank Senator Brownback for cosponsoring this 
amendment. He has been tireless in his efforts to help asylum-seekers 
and trafficking victims, and I am very pleased that we could work 
together on a bipartisan basis on this effort.
  Under section 227(c) of the bill, a court cannot grant a temporary 
stay of removal pending appeal to an asylum applicant or other 
individual unless the immigrant proves by clear and convincing evidence 
that the order is prohibited as a matter of law. That, as we all know, 
is an extremely difficult standard to satisfy, particularly in the 
preliminary stage of an appeal. It is so difficult that the Chicago Bar 
Association called this provision a ``potentially devastating threat to 
due process.''
  This draconian provision could have a particularly harmful effect on 
asylum-seekers. It could effectively deny all judicial review to many 
asylum applicants who might otherwise have successful appeals by 
allowing them to be sent back to countries where they can face 
persecution or even death before a Federal court can even rule on their 
cases.
  Section 227(c) would overturn the decisions of seven different courts 
of appeal that have determined that the Immigration and Nationality Act 
does not currently require immigrants to meet the very high ``clear and 
convincing evidence'' standard for temporary stays of removal pending 
appeal. I will explain in a bit more detail, as these courts already 
have, why this very stringent standard would be such bad policy.
  First of all, as I have said, in many cases this provision would 
result in an immigrant having to meet a higher standard of review to 
get a temporary stay of removal than to prevail on the merits of it. 
Federal courts review legal issues in asylum and other immigration 
cases de novo, and they review issues, such as credibility questions in 
asylum cases, using a lower, ``substantial evidence'' standard. These 
standards are nowhere near as difficult to

[[Page S5147]]

satisfy as a ``clear and convincing evidence'' standard that the 
decision ``prohibited as a matter of law.'' Indeed, courts of appeal 
have pointed out that the only individuals who could satisfy such a 
high standard would be U.S. citizens and individuals who hold visas of 
``unquestioned validity.''
  I will read a quick passage from a decision of the First Circuit 
Court of Appeals that I think goes right to the heart of the issue:

       Perhaps most important, we recognize that extending [the] 
     stringent clear and convincing evidence standard to stays 
     pending appeal . . . would result in a peculiar situation in 
     which adjudicating a stay request would necessitate full 
     deliberation on the merits of the underlying case and, in the 
     bargain, require the alien to carry a burden of proof higher 
     than she would have to carry on the merits. This Kafkaesque 
     design is counterintuitive.

  Let's pause for a moment to consider that--``this Kafkaesque design 
is counterintuitive.'' A panel of the First Circuit Court of Appeals, 
in a decision written by a judge appointed by President Reagan, has 
called the very provision that is in the bill ``Kafkaesque.'' Surely, 
the Senate does not want to include such an extreme provision in this 
bill.
  Even in situations where the issue on appeal is subject to a very 
deferential standard of review, it makes no sense to require an 
immigrant to meet the stringent ``clear and convincing evidence'' 
standard of review at such a preliminary stage of the case. As one 
court has pointed out, the appellant may not even have obtained a copy 
of the administrative record that early in the case. How can appellants 
prove by clear and convincing evidence that they will win their appeal 
when they may not even have a copy of the administrative record?
  Kafkaesque, indeed.
  This standard would also be out of line with analogous situations in 
other civil cases. Typically, when an appellant seeks temporary relief 
at the beginning of a case, the goal, as many of us know, is to 
preserve the factual situation for the duration of the appeal, and the 
goal of that is to ensure that the ultimate relief, if granted, will 
still be meaningful. That is why many courts of appeals reviewing 
removal orders rely on the same standard of review that applies to 
requests for temporary restraining orders in civil litigation. That 
test is well known to so many who have studied the law. They apply a 
four-part test that evaluates the likelihood of success on the merits: 
whether there will be irreparable injury if a stay is denied; whether 
there will be a substantial injury to the party opposing a stay if one 
is issued; and the fourth criterion, the public interest. This flexible 
standard allows a court to assess whether a stay is needed early in the 
case without having to delve into the detail required to determine the 
final outcome.
  But if this provision were to become law, the entire case would have 
to be litigated in full twice--once to meet the requirements for a stay 
of removal and then again on the merits. At least in some courts of 
appeals, that would mean the case would first have to be presented to a 
motions panel on the stay application and then again before the merits 
panel. As the American Bar Association has argued in urging the Senate 
to reject this provision, such a duplicative process would be a 
significant waste of resources, particularly at a time when the 
immigration caseload of the Federal courts is growing.
  I wish to speak for a moment about the individuals who would most 
likely be harmed by this new provision, and they are, of course, asylum 
seekers.
  As one Federal court has explained, imposing this new stringent 
standard ``would mean that `thousands of asylum seekers who fled their 
native lands based on well-founded fears of persecution will be forced 
to return to that danger under the fiction that they will be safe while 
waiting the slow wheels of American justice to grind to a halt.'''
  Similarly, Judge Easterbrook of the Seventh Circuit noted that stays 
pending appeal ``remain vital when the alien seeks asylum or contends 
he would be subject to torture if returned. The ability to come back to 
the United States would not be worth much if the alien has been maimed 
or murdered in the interim. Yet under [the clear and convincing 
evidence standard] . . . an alien who is likely to prevail in this 
court, and likely to face serious injury or death if removed, is not 
entitled to remain in this Nation while the court resolves the 
dispute.'' Just to give that example.
  The stakes are high. This provision has the potential to be 
devastating for asylum seekers; so devastating, in fact, that the 
provision was rejected by Congress just last year when it was taken out 
of the REAL ID Act in the conference process, and it is not even 
included in the current House bill. I hope the Senate will support my 
amendment to strike this troubling provision from the bill.
  Let me put a personal face on this debate. I received earlier this 
week a letter from the National Network to End Violence Against 
Immigrant Women. This is a very compelling letter, and I ask unanimous 
consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                     May 22, 2006.
     Re Comprehensive Immigration Reform Act of 2006 [Hagel-
         Martinez compromise] (S. 2611), Biden Amendment 4077 
         (amends section 403(a)(1)), and Feingold Amendment 4083 
         (amends section 227[c]).
       Dear Senator: On behalf of the National Network to End 
     Violence Against Immigrant Women, we write to urge you to 
     preserve access to longstanding, life-saving legal 
     protections embodied in the Violence Against Women Act 
     (``VAWA'') for immigrant victims of domestic abuse, sexual 
     assault, or human trafficking. The National Network to End 
     Violence Against Immigrant Women is comprised of over 3,000 
     professionals nationwide including police, sheriffs, district 
     attorneys, probation officers, prosecutors, health providers, 
     churches, rape crisis centers, domestic violence shelters, 
     mental health professionals, child protective services 
     workers, and immigrant rights' groups. The Network's members 
     are all joined by a common purpose--working towards the 
     eradication of all forms of violence perpetrated against 
     immigrant women and children including domestic abuse, sexual 
     assault, human trafficking, and stalking.
       The National Network to End Violence Against Immigrant 
     Women urges you to support:
       (1) Biden Amendment 4077 [amends section 403 (a)(1)]: 
     preserves access to VAWA cancellation of removal (family 
     violence), T visas (trafficking), and U visas (violent 
     crimes); and
       (2) Feingold Amendment 4083 [amends section 227[c]]: 
     preserves access to judicial stays of removal for immigrants, 
     including victims of violence or persecution, who are 
     appealing their cases to the federal courts.
       I. S. 2611, section 403(a)(l) endangers thousands of 
     immigrant women and children by cutting off victims of 
     domestic abuse, sexual assault, or human trafficking from the 
     VAWA immigration remedies created by Congress in 1994 and 
     2000.
       S. 2611, section 403(a)(1) adds a new subsection to the 
     Immigration and Nationality Act (``INA''), 218A(i), which 
     would bar individuals who enter or remain in the U.S. without 
     authorization from obtaining cancellation of removal, 
     voluntary departure, or nonimmigrant status for 10 years. 
     Section 218A(i) does not contain an exception for victims of 
     domestic abuse, sexual assault, or human trafficking who 
     qualify for VAWA cancellation of removal (family violence), T 
     visas (human trafficking), or V visas (violent crimes). 
     Without a specific amendment to exempt these victims, section 
     403(a)(1) will undo over a decade of progress in fighting 
     domestic abuse, sexual assault, and human trafficking started 
     with the enactment of the Violence Against Women Act 
     (``VAWA'') in 1994.
       Since passing VAWA 1994, Congress has continually 
     reaffirmed the nation's commitment to granting special 
     humanitarian relief to immigrant victims of domestic abuse, 
     sexual assault, or human trafficking. In 2000 Congress 
     created the T visa and V visa in the Victims of Trafficking 
     and Violence Protection Act. As recently as last December, 
     Congress expanded VAWA and trafficking immigration relief in 
     the VAWA Reauthorization Act of 2005. If the Senate does not 
     now carve out a limited exception to S. 2611, section 
     403(a)(1), it will be undercutting the very protections 
     created by Congress in VAWA 1994 and 2000.
       We, therefore, respectfully urge you to support Biden 
     Amendment 4077 which would carve out a limited exception for 
     victims of family violence, sexual assault, or human 
     trafficking from S. 2611, section 403(a)(1) to ensure they 
     have continued access to VAWA cancellation of removal, T 
     visas, and U visas.
       II. S. 2611, section 227[c] endangers immigrant women and 
     children who will be deported into the hands of human 
     traffickers, batterers, and persecutors, thereby facing 
     certain harm and possible death.
       S. 2611, section 227[c] would bar federal courts from 
     staying the deportation of any immigrant with a final removal 
     order unless she shows by ``clear and convincing evidence'' 
     that deportation is prohibited as a matter of law. This 
     heightened standard would make it virtually impossible for 
     most victims of domestic abuse, sexual assault, or human 
     trafficking to obtain stays of deportation while their cases 
     are on appeal to the

[[Page S5148]]

     federal courts. Section 227[c] poses grave risks to many 
     immigrant women and children who, in the absence of a stay of 
     removal, will be deported and delivered into the hands of 
     human traffickers, batterers, and persecutors.
       Why is preserving access to temporary judicial stays of 
     removal critical for immigrant victims of violence or 
     persecution? Because it is not uncommon for the federal 
     courts to reverse illegal deportation/removal orders that 
     were issued by immigration judges and subsequently affirmed 
     by the Board of Immigration Appeals (``BIA''). For many 
     immigrant women and children, the federal courts are the 
     ultimate protectors of justice, and it is not until their 
     case reaches the federal courts that they are given due 
     process, as required by the Constitution. All immigrants, but 
     especially victims of violence or persecution, need to have 
     continued access to request judicial stays of removal/
     deportation while their cases are being reviewed by the 
     federal courts. A temporary judicial stay of removal does not 
     allow an immigrant to remain indefinitely in the U.S.; it 
     merely prevents the Department of Homeland Security from 
     deporting her while the federal court reviews her case.
       Real-life immigrant women who obtained judicial stays of 
     removal during the pendency of their appeals and were 
     ultimately granted immigration relief by the federal courts:
       Laura Luisa Hernandez endured years of brutal violence at 
     the hands of her husband. He slammed her head against the 
     wall, smashed a fan on her head, savagely beat her, attacked 
     her with a knife, and denied her access to medical care for 
     her injuries. Ms. Hernandez applied for VAWA suspension of 
     deportation, a special form of relief for abused spouses and 
     children that Congress created in VAWA 1994. An immigration 
     judge denied Ms. Hernandez's VAWA suspension of deportation 
     application and ordered her deported. The BIA affirmed the 
     immigration judge's denial of VAWA suspension of application. 
     Ms. Hernandez then appealed the BIA decision to the U.S. 
     Court of Appeals and obtained a temporary stay of deportation 
     while her appeal was being reviewed by the U.S. Court of 
     Appeals. The U.S. Court of Appeals eventually reversed the 
     BIA decision and concluded that she qualified for VAWA 
     suspension of deportation. See Hernandez v. Ashcroft, 345 
     F.3d 824 (9th Cir. 2003).
       Lioudmila Krotova and her children Anastasia and Aleksandra 
     fled Russia after they were assaulted by skinheads and their 
     synagogue was stormed. Ms. Krotova reported both attacks to 
     the police, but the police failed to take any meaningful 
     action. After the Krotovas fled Russia, skinheads beat a 
     close family friend to death, and also beat the Krotovas' 
     relative so brutally that they broke his hip. After entering 
     the U.S., Ms. Krotova applied for asylum. An immigration 
     judge denied her application, and the BIA affirmed the 
     judge's decision. Ms. Krotova then appealed to the U.S. Court 
     of Appeals and obtained a temporary stay of removal. The U.S. 
     Court of Appeals eventually reversed the BIA decision and 
     concluded that the harassment, discrimination, and violence 
     experienced by Ms. Krotova on account of her being Jewish 
     compelled the finding that she suffered past persecution. See 
     Krotova v. Gonzales, 416 F.3d 1080 (9th Cir. 2005).
       Ralitsa Nedkova, a Roma (gypsy) woman from Bulgaria, was 
     brutalized by the police for many years. She was repeatedly 
     arrested, detained, beaten, and threatened with rape by the 
     police for doing nothing wrong other than being Roma. She 
     suffered numerous injuries including cracked ribs as a result 
     of police brutality. She was also brutalized by her ethnic 
     Bulgarian husband who savagely beat her while screaming 
     ``Whore! Gypsy!'' When she was pregnant, he beat and kicked 
     her in the stomach yelling, ``Gypsies don't have a right to 
     have children!'' He beat her so violently that she miscarried 
     in her second trimester. Ms. Nedkova eventually fled for her 
     life and attempted to enter the U.S. She was arrested by 
     immigration authorities and remained in detention for years. 
     While in detention, she applied for withholding of removal. 
     An immigration judge denied her application, and the BIA 
     affirmed the decision. Ms. Nedkova appealed her case to the 
     U.S. Court of Appeals and obtained a temporary stay of 
     removal during the pendency of her appeal. The U.S. Court of 
     Appeals reversed the BIA decision, and Ms. Nedkova was 
     eventually granted withholding of removal. See Nedkova v. 
     Ashcroft, 83 Fed. Appx. 909 (9th Cir. 2003).
       Juanita Sauceda was ordered removed by an immigration court 
     while her husband was fighting in the Middle East with the 
     Texas National Guard. Together they have several U.S. citizen 
     children. Ms. Sauceda was ordered removed, despite the fact 
     that she was eligible to immigrate based on her husband's 
     petition as well as her mother's petition. Ms. Sauceda 
     appealed her removal order to the BIA which affirmed the 
     immigration court's decision. She then appealed her case to 
     the U.S. Court of Appeals for the Fifth Circuit and obtained 
     a judicial stay of removal during the pendency of her appeal. 
     Because she was granted a stay of removal, she was able to 
     continue caring for her U.S. citizen children while their 
     father fought in the Middle East. If she had been denied a 
     judicial stay of removal, she would have been deported during 
     the pendency of her appeal, and her U.S. citizen children 
     would have been abandoned in the U.S., with no parent to care 
     for them. See Sauceda v. Gonzales (5th Cir. 2005).
       These real-life cases illustrate why all immigrant women 
     and children, especially victims of violence or persecution, 
     need to have continued access to judicial stays of removal 
     while their cases are being reviewed by federal courts. We, 
     therefore, respectfully urge you to support Feingold 
     Amendment 4083 which would preserve access to judicial stays 
     of removal, thereby ensuring that victims are not illegally 
     deported into the hands of human traffickers, batterers, and 
     rapists.
           Sincerely,
     Joanne Lin,
       Legal Momentum Immigrant Women Program.
     Gail Pendleton,
       ASISTA.
     Leni Marin,
       Family Violence Prevention Fund.

  Mr. FEINGOLD. Mr. President, I would like to read from this letter to 
give my colleagues a better understanding of whom this provision of the 
bill will affect. According to this letter:

       Section 227(c) poses grave risks to many immigrant women 
     and children who, in the absence of a stay of removal, will 
     be deported and delivered into the hands of human 
     traffickers, batterers, and persecutors.

  Let me read one example the National Network provided in its letter 
of a case in which the availability of a stay of removal was essential. 
Let me tell you about Lioudmila, Anastasia, and Aleksandra Krotova. 
According to the letter:

       Lioudmila Krotova and her children Anastasia and Aleksandra 
     fled Russia after they were assaulted by skinheads and their 
     synagogue was stormed. Ms. Krotova reported both attacks to 
     the police, but the police failed to take any meaningful 
     action. After the Krotovas fled Russia, skinheads beat a 
     close family friend to death and also beat the Krotovas' 
     relative so brutally that they broke his hip.
       After entering the U.S., Ms. Krotova applied for asylum. An 
     immigration judge denied her application, and the [Board of 
     Immigration Appeals] affirmed the judge's decision. Ms. 
     Krotova then appealed to the U.S. Court of Appeals and 
     obtained a temporary stay of removal. The U.S. Court of 
     Appeals eventually reversed the BIA decision and concluded 
     that the harassment, discrimination and violence experienced 
     by Ms. Krotova on account of her being Jewish compelled the 
     finding that she suffered past persecution.

  This is just one example.
  The letter also talks about a woman who was ordered removed while her 
husband was serving overseas in the Texas National Guard and whose 
deportation would have left her U.S. citizen children no parent to care 
for them. And there are others.
  If my amendment is not adopted, these are the types of people who 
will be affected, who will be sent back to countries where they could 
be killed or torn from their families.
  I assume those who support this provision want to ensure immigrants 
cannot file frivolous appeals in order to delay their deportation, and 
I wholeheartedly agree with that goal. But this provision is not 
necessary to accomplish that worthy goal. The Federal courts do not 
grant stays of removal when immigrants have little likelihood of 
success. In fact, several of the appellate decisions that have rejected 
the clear and convincing evidence standard at issue here have gone on 
to apply the four-part test I discussed earlier and denied stays of 
removal pending appeals. Nonetheless, they have denied these stays in 
some cases because the immigrants had little likelihood of success or 
because the immigrant could safely return to their home countries and 
await the outcome. So this provision is really just a solution in 
search of a problem.
  This amendment is about basic due process and fairness. It is about 
giving individuals who have been turned down at the administrative 
level the opportunity to seek meaningful judicial review. And it is 
about making sure that those who seek asylum in this country and who 
have meritorious claims are not returned to persecution or even murder 
in their home countries before they can present their case to a Federal 
court.
  That is why a long list of organizations have come out in support of 
this amendment, including the U.S. Conference of Catholic Bishops, 
World Relief, the Leadership Conference on Civil Rights, the National 
Council of La Raza, and more than 50 others.
  Mr. President, I ask unanimous consent that a full list of the 
organizations that support this amendment be printed in the Record 
immediately following my statement.

[[Page S5149]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. FEINGOLD. Mr. President, everybody in this Chamber, I hope, will 
consider supporting this amendment. I urge its adoption.
  I reserve the remainder of my time.

                               Exhibit 1


  List of Organizations that Support Feingold-Brownback Amendment No. 
                                  4083

     American Bar Association
     American Civil Liberties Union
     American Immigration Lawyers Association
     American Jewish Committee
     Amnesty International
     Asian American Justice Center
     Asian Pacific American Legal Center, Los Angeles, CA
     Bernardo Kohler Center, Inc., Austin, Texas
     Casa de Esperanza, Bound Brook, New Jersey
     Catholic Charities USA
     Center for Gender and Refugee Studies, Univ. of California, 
         Hastings College of the Law
     Center for National Security Studies
     Chicago Bar Association
     Church WorId Service Immigration and Refugee Program
     Episcopal Church
     Episcopal Migration Ministries
     Families for Freedom, Brooklyn, NY
     Hebrew Immigrant Aid Society
     Hispanic National Bar Association
     Human Rights First
     Human Rights Watch
     Immigrant Law Center, St. Paul, MN
     Immigrant Legal Advocacy Project, Portland, ME
     Immigrant Legal Resource Center
     Immigration Unit of Greater Boston Legal Services
     Institute of the Sisters of Mercy of America
     Jubilee Campaign USA, Inc.
     Leadership Conference on Civil Rights
     Legal Momentum
     Mexican American Legal Defense and Education Fund
     National Advocacy Center of the Sisters of the Good Shepherd
     National Council of La Raza
     National Immigration Forum
     National Immigration Law Center
     National Immigration Project
     National Network to End Violence Against Immigrant Women
     New York State Defenders Association Immigrant Defense 
         Project
     Open Society Policy Center
     Opening Doors Immigration Services, Denton, TX
     Presbyterian Church (USA), Washington Office
     Refugee Resource Project
     Service Employees International Union
     Sisters of Mercy of the Americas
     Sikh American Legal Defense and Education Fund
     Sikh Coalition
     South Asian American Leaders of Tomorrow
     Tahirih Justice Center
     Union for Reform Judaism
     United Methodist Church, General Board of Church and Society
     Unitarian Universalist Service Committee
     U.S. Committee for Refugees and Immigrants
     U.S. Conference of Catholic Bishops
     Washington Defenders Association Immigrant Defense Project, 
         Seattle, WA
     World Relief, the humanitarian arm of the National 
         Association of Evangelicals USA

  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have been advised that the objection to 
setting aside amendments has been withdrawn, so we will be able to 
stack the votes on the remainder of the amendments.
  While I have recognition, I would like to comment briefly in support 
of the amendment offered by the Senator from Wisconsin. The standard of 
clear and convincing evidence, unless prohibited as a matter of law, is 
a very tough standard and I don't think ought to be imposed here. It is 
preferable to use the regular four-part standard, which includes a 
requirement that the petitioner is likely to succeed on the merits.
  This particular matter has been commented on by a number of very 
distinguished jurists. Judge Frank Easterbrook, appointed by President 
Reagan, said that the interpretation in the current bill--the 
interpretation that this amendment is designed to change--could require 
removal of an alien who was both likely to prevail in court and likely 
to face serious injury or death if deported.
  Judge Bruce Selya from the First Circuit, appointed by President 
Reagan, said that the very situation the current bill would create is, 
in his words, ``absurd'' and ``Kafkaesque.''
  Judge Jerry Smith, another Reagan appointee on the Fifth Circuit 
Court of Appeals, said that the situation the bill would create is 
``peculiar, at best.''
  I believe the interest of justice would be promoted by allowing the 
courts to utilize the current standards for granting stays and not 
imposing this extraordinary standard.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I am deeply grateful to the chairman, 
especially for his support of this amendment but also for his 
leadership on this legislation. It is extremely important to this 
country. I know he worked so hard in committee to come up with a good 
package that I am able to support. I particularly thank him for his 
support of the amendment.
  I yield such time as the Senator from Kansas requires. I thank him 
for his tremendous help on this amendment.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I thank my colleague from Wisconsin for 
bringing forward this amendment and for highlighting the issue. I hope 
we can get a strong vote from all of our colleagues on the amendment.
  We heard about the issue of clear and convincing evidence that one 
has to meet to keep from being sent home even though the standard is 
lower for one to actually win the case. I don't know anywhere else in 
the law where one has to meet a higher standard at that point in the 
system than one would on final adjudication. This is really backward in 
that particular situation.
  I don't want to talk about that in particular, as I do the specific 
situations that can arise and we can see easily enough happen. I have 
been to one of the detention facilities in New York, a place called 
Wackenhut--an incredible name for a detention facility. I have been to 
detention facilities on the border. I met with people who sought 
asylum.
  I recognize the problem a number of people are targeting on this 
issue--and I think it is a legitimate concern to raise--that too many 
people are claiming asylum status who are not legitimate asylees, and 
they are not going to win in the system and are flooding the system 
with requests. That is a legitimate concern. One can go into some of 
these detention facilities and find a lot of people who are saying they 
are seeking asylum and asylum status, and on its face one can question 
whether it is a legitimate case. That is a proper issue to raise, and I 
think the people who put forward this amendment are targeting a correct 
issue.
  Having said that, I have also worked with a number of people who, if 
you take them in this situation and say: You can't meet clear and 
convincing on the initial status, you are going home and wait there 
before you can come here for asylum status, and we send them home, they 
are going to prison or they are likely to disappear. They are likely to 
disappear in that situation. I say disappear as in being killed in 
those host countries to which they would go back. We can think of some 
pretty easy ones. I had six refugees from North Korea in my office last 
week. If they go home, they are in the Gulag and probably will not 
survive.
  What about Iran? What happens if someone from Iran comes to this 
country and seeks asylum status, and we say it doesn't look clear and 
convincing to us? How about Zimbabwe under Mugabe? That could happen in 
this situation. If you are in a family that has been opposed to his 
leadership in that country, and we say: Well, I don't know, and you are 
saying it is an uncle who caused a situation about which Mugabe is 
concerned, and we say: I don't know, did the uncle do much; we don't 
have a factual record on this--he doesn't have a factual record at all 
because they didn't let him leave with any factual record; you are 
going on his testimony, and he has to meet clear and convincing 
evidence--it would be very logical for a judge to say: You don't meet 
clear and convincing evidence. It is your word on this. We don't have a 
factual record. We can't get to a factual record. You are going back to 
Zimbabwe. And if he goes back to Zimbabwe, it is highly likely he will 
disappear, as in being killed. This guy isn't going to make it, isn't 
going to survive.
  In that situation, we should have the standard the same on the stay 
as on the final injunction, particularly at this early stage in the 
process and particularly when somebody's physical life is in jeopardy.

[[Page S5150]]

  I am afraid to say there are quite a few places in this world today 
where there are dictatorships or narrow one-party rule where if 
somebody is sent back and they have been opposed or now even perceived 
as opposed, now that they have traveled outside the United States and 
tried to get away, or if someone is sent back to Syria or somewhere 
else, there is a high likelihood they are going to disappear, they are 
going to be killed. They not going to be seen again in their home 
country. in this particular case, while I think the people who propose 
the base portion of this text are accurate in seeing a problem that has 
grown wide in this litigation, the narrow impact of this and the 
backwardness of the adjudication process, having the final order being 
a lower standard than this initial one, and the likelihood of physical 
harm, if not death, to the individual being sent home, we shouldn't be 
doing that. We shouldn't be allowing that to happen. I would hope that 
we could pass this amendment to change that standard so the final order 
and the temporary order are the same adjudication status and we don't 
get people killed inadvertently because we have put in a different 
status. This is important, and I think lives are at stake with this 
one.

  In far too many places around the world that I have been, you can 
think and you can articulate a number of them that would come forward, 
be it the case in Burma, or be it the case in a number of countries 
that are dictatorships throughout Africa. You could look at 
Turkmenistan. I met yesterday with some human rights activists from 
Turkmenistan; a real question there is what happens to you. China, some 
real questions in that country, particularly if you are a member of 
Falun Gong and you come here, or you are a student activist or knew 
somebody who was a student activist. Again, most of it is on your word 
at this point in time and you can't meet the clear and convincing 
steps.
  So I would hope we could pass this amendment. I am fearful that if we 
don't, we are going to see people sent back, sent back to death, and I 
don't want to see us doing something like that.
  I thank my colleague for proposing this amendment. I appreciate those 
who are dealing with this issue. I do think this would be a good 
amendment for us to pass.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Oklahoma is 
recognized.
  Mr. COBURN. Mr. President, months ago in the Judiciary Committee 
markup I offered an amendment that codified the process of expedited 
removal and extended it to include criminal aliens. We have to 
remember, this is about criminal aliens. What we do know from one of 
the Judiciary Committee hearings is somewhere between 6 and 8 percent 
of the people coming across our southern border have a criminal 
history.
  There are valid points to the questions that have been raised by the 
Senator from Wisconsin, who I have the utmost respect for, but I think 
this is a question about what could happen versus what is getting ready 
to happen. What is getting ready to happen is instead of 28 percent of 
our Federal prisons today being filled with illegal aliens, it is going 
to become 45 and 50 percent, because they are going to stay here. We 
are going to give them 27 months. They are going to use stays to stay 
here, and what we are trying to do is have a balance.
  Is it possible that somebody could be denied entry into this country 
and have a negative consequence? Yes. But it is far more likely there 
is going to be a tremendous negative consequence to us in costs and to 
our children as we allow this system to continue to go on and be 
perpetuated the way that it is.
  I also remind my colleagues that current law under what we call 
expedited removal is law, and it is being carried out. What this 
amendment does will get rid of the expedited and ultimately will get 
rid of the removal, and what we are going to see on criminal aliens is 
we are going to see our prisons not having 28 percent illegal aliens 
who are criminals, but we are going to have 50 percent. The cost right 
now is $7 billion a year to our country, and $1.7 billion of that is 
associated with Federal prison costs for illegal immigrants. So we are 
talking about expedited removal.
  The other thing to remember that we are talking about is this is only 
going to be applied to people who have been here less than 14 days and 
within 100 miles of the border.
  The administration opposes this amendment, and for good reason. The 
Feingold amendment would allow aliens to remain in the United States 
and would perpetuate the incentive for aliens to pursue even the most 
meritless appeals. That is what happens when we allow this. I am not a 
lawyer, but I know that the obligation for clear and convincing 
evidence is a high standard, and that is a difficult thing. But we have 
to measure it against all the other consequences of not having that 
standard.
  The arguments that the Senator from Wisconsin makes are real. They 
are true. But he doesn't talk about what the downside is, and the costs 
and the lost opportunity and actually human grief that comes from 
having that process for those who are going to bear the cost of it.
  The section that the Senator from Wisconsin focused on in his 
amendment is already law. It is already U.S. Code, Section 242(f) 28 
USC 1252(f2). All my amendment did to this section of the Code was to 
add the judicial injunction being amended to include stays. What is 
happening is that 90 percent of these stays are overturned right now. 
Ninety percent of them are overturned at the appellate division. So 
what we are doing is comparing what could happen to what is happening 
and what is the cost of that.
  The heart of the Senator from Wisconsin is good. The heart of the 
Senator from Kansas is good. The question is, How do we balance that 
with the human costs of carrying out this sacrifice of not being 100 
percent? We could be 100 percent. What we would do is not allow anybody 
to return to their country until we know that they are going to be 
adequately clothed and adequately fed. Forget abused and incarcerated. 
What about the standard of making sure they have the same opportunities 
that people in America have. We are not applying that standard to these 
people, the 90 percent where the stays are denied.
  So I don't challenge what could happen to somebody who was denied the 
basis of asylum. What I ask is, where is the common sense on how we 
handle these thousands and thousands and thousands of cases that allow 
somebody 27 months here, who uses the claim of asylum, which, in fact, 
has nothing to do with why they are here, but allows them to stay 
another 27 months? It also raises a tremendous cost for us, because 
they not only have to be held, they have to be defended, and we are 
paying for that as well.
  As to the points made by the Senators from Kansas and Wisconsin on 
the possibilities of what could happen, it is true; they could. But it 
doesn't consider what is going to happen if we continue to allow this 
abuse of the system where an injunction is forbidden by Federal law and 
a stay is issued because they can't offer an injunction, because it is 
illegal to do so.
  So is it a difficult issue? Yes. Do I see the problem of abuse of 
this much greater than they? Yes. Do I balance the scales differently? 
Yes. Because the undetermined cost and the undetermined consequence of 
the way that we are doing it now is just as dangerous in the long-range 
measure of humanity as of the potential dangers of one person--even if 
it is one--if only one person was denied asylum, if it is just one, 
should we go even further? The fact is we can't be perfect. Even 
without clear and convincing evidence, we are not perfect. Even 90 
percent of those that are--the stays are overturned. Some of those we 
decided wrongly. So it is not as clear-cut as the Senator would make it 
seem. And it is not just the issue of some people who might be 
interested, because some are going back now after a denial of the stay, 
using a better standard of evidence.
  So I would hope that we would keep this in the bill. It is not in the 
House bill. It may not stay in the complete bill. But it is certainly 
something that will turn resources that are today wasted tremendously 
and turn those resources to help those people who get here and have 
gotten asylum to have a better life.
  Mr. President, with that, I yield the floor.

[[Page S5151]]

  Mr. FEINGOLD. Mr. President, how much time remains?
  The PRESIDING OFFICER. Eleven and a half minutes.
  Mr. FEINGOLD. I would like to use the time to respond to the Senator 
from Oklahoma, whom I greatly respect. He is right, we can't be perfect 
about this. This is a complicated situation. He is also right that our 
goal here should be to achieve the right balance, and that is the 
challenge before us.
  My amendment certainly doesn't strike all the changes that are made 
in the bill; it just tries to address one particular mistake that was 
made that I think was almost borderline unintended. The bill as it now 
reads greatly expands expedited removal. I am not objecting to that, 
and I am not suggesting that we should not do so. I want to do exactly 
what the Senator from Oklahoma has suggested, which is to introduce 
another element of common sense and balance into this. So I want to 
respond to a couple of things he said.
  He began his remarks by saying this is about expedited removal; we 
wouldn't have a problem here if we were only talking about expedited 
removal.
  That is not the point. As I understand this provision, it goes well 
beyond expedited removal to all removals. So that is the problem. In 
fact, we even suggested at the staff level on the floor in recent days, 
we wouldn't have a problem if this change was honed and limited to 
expedited removals. So it is simply incorrect--and I want the record 
corrected on this--to suggest that this somehow deals with expedited 
removals.
  Secondly, the Senator says, Well, all we are doing here is broadening 
the concept and expanding it to stays. That is a big deal. It is not a 
minor thing. What we are talking about here, and Senator Brownback and 
I gave real, human examples of what we are talking about, is situations 
where if somebody can't get a stay so they can stay in this country and 
not be rushed to a situation where they may be harmed, that stay may be 
definitive for them in the form of death or serious injury or 
persecution. What we are talking about here is what is the standard for 
that temporary stay so that they get the opportunity to make their 
substantive case on whether they should stay here on the merits.
  Finally, the Senator suggested that this would lead to approvals of 
meritless claims. Our judges know how to handle this sort of thing. 
Under the current system, they don't just hand out injunctions on no 
basis. As I read the standard for injunctions, they evaluate four 
factors: No. 1, the likelihood of success on the merits; No. 2, whether 
there will be irreparable injury if the stay is denied; No. 3, whether 
there will be a substantial injury to the party opposing a stay if the 
stay is issued; and No. 4, the public interest. If those standards 
aren't met, these judges don't just hand out stays. It is based on a 
long-standing tradition in the law in this area. So the idea that 
somehow this change would lead to meritless or automatic granting of 
stays is simply incorrect under the law.
  So I hope that responds to the points that my friend from Oklahoma 
made, and I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? If no one yields time, time 
will be charged equally to both sides.
  Mr. KYL. Mr. President, I rise in opposition to this amendment. This 
amendment is not just some little amendment that is seeking to cure 
some outlying kind of case. It amends existing law, as well as to 
strike a provision that was added in the Judiciary Committee. It is 
opposed by the administration. The reason is because the administration 
today is using the part of the law that would be stricken here to 
remove, in an expedited fashion, illegal immigrants who come here, 
and--using the figures that are more current--over 10 percent of whom, 
by the way, are criminals, to their home country, the other-than-
Mexican illegal immigrant. Last year, there were over 135,000 of these 
people who were apprehended, and they were from countries all over the 
world, including a lot of countries that won't take them back, 
especially won't take them back very quickly.
  So the question becomes, What happens? If they are from Mexico, of 
course, you can simply put them back on the bus and take them to the 
border. But if they are from China or Russia or Vietnam or some other 
country, you can't do that. First of all, you have to work with the 
other country to ensure they can be removed to the other country, and 
then you have to keep them in custody until they can be removed. In the 
meantime, if they want to make a case for asylum, they may do so, and 
the only standard is the usual standard of credible fear.
  So let's not labor under the assumption that this outlying case, this 
person who will be subject to abuse if the person is returned home, 
can't make an asylum claim. You can, and it is resolved just like the 
other asylum claims are resolved: If you can establish a credible fear 
so that you are put in a separate category over here, and you are not 
removed to your home country.
  But what about those who do not? Today there aren't sufficient 
detention spaces for these individuals, and so many of them are simply 
asked to report back in a few days and they don't show up, obviously. 
So they melt into our society.
  It was to solve this problem that Secretary Chertoff invoked the 
expedited removal plan, which originally just applied to two of the 
sections on the border and now will apply to all of the border. The 
people are detained until they can be removed and the period for 
removal is reduced from about a month down to about 2 weeks, so 
detention space is adequate.
  What happens if the Feingold amendment passes? Secretary Chertoff's 
promise to us that he would invoke expedited removal and be able to 
remove these people from the country--those who can't make a credible 
asylum claim--will be destroyed, because every one of them can file an 
appeal.
  The law that currently exists says that you can't get an injunction. 
The reason is clear. We passed this because it is obvious that 
everybody simply files an appeal, gets an injunction, and they stay. It 
is years before you get them out--if you can ever re-contact them after 
they have been released. You can't keep them in detention for that 
period of time, so they are released and the chances are they never 
show up. That is the experience we had.
  Congress decided we can't do that, that it is just a free pass to be 
illegal. So we said, once you made your claim for asylum and it is 
denied, and you have a final order for removal, and that can be made by 
an immigration judge--actually, it can go all the way through the 
Immigration Board of Appeals or, in certain cases, it can be by an 
immigration official, but once that order is final you are on your way 
and you cannot appeal and enjoin your removal.
  The ninth circuit decided in its wisdom that ``enjoined'' didn't 
include ``stay.'' So they said Congress may have said we can't enjoin 
the removal, but we can stay it. As the Senator from Wisconsin pointed 
out, it is pretty much the same thing. So the ninth circuit got around 
congressional intent. Nonetheless, the Secretary of Homeland Security 
believes that he can use expedited removal to remove most of these 
illegal immigrants, many with criminal records, from the United States.
  What the amendment does is to strike both the injunction language in 
the existing law and the stay language in the amendment by the Senator 
from Oklahoma, which was intended to overturn that ninth circuit 
decision and get back to the original intent of Congress. But the net 
result is not to speak with a fine sieve or filter here, but to enable 
everybody against whom a final order of removal has been made to appeal 
and get injunctive relief from the final order of removal.
  In the effort to solve a few outlier cases which could be solved by 
other means--and certainly the motivations of the Senator from 
Wisconsin and the Senator from Kansas who spoke with respect to that 
are important, and I think we would all agree with those motivations, 
but there is a better way to solve that outlier problem than to simply 
say, for all of the people who come here illegally and get an order of 
final removal, they don't have to go; they can appeal, and they can 
enjoin the order of removal.
  I am not sure if the Senator from Wisconsin would agree to this, but 
one of the ways that you could begin to

[[Page S5152]]

limit the application of this, not to destroy Secretary Chertoff's 
program of expedited removal, would be to ensure that the amendment of 
the Senator did not apply to expedited removal. I am not sure whether 
the Senator would be willing to do that, but that would be one start.
  The Senator says it is not just expedited removal we are talking 
about here, and that is very true. But we are also talking about 
expedited removal and that is something we need to move forward with 
and not stop dead in its tracks. The problem is that the experience 
with absconders is significant.
  Mr. President, 90 percent of these appeals, when there are appeals, 
are resolved against the person making the appeal. So most of these are 
not outlier cases. They are cases that were brought for the purpose of 
delaying, to allow the individual to stay in the country longer and, in 
many cases, to simply forget the judicial process once the injunction 
has been granted or the stay has been granted, so that the individual 
did simply meld into our society and never show up again. That is the 
concern that we have, and this amendment sweeps with too broad a brush 
here.
  To deal with the outlier situation we do not have to remove the 
remedy of the final order of removal for the hundreds of thousands of 
people who came here illegally and need to be expeditiously removed.
  I urge my colleagues to understand that this amendment is serious. It 
is far-reaching. It is overly broad. It strikes existing law. It is 
opposed by the administration and it is unnecessary with respect to the 
underlying purposes of the immigration problem that we are trying to 
resolve today. My colleagues should defeat this amendment.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from Wisconsin is 
recognized.
  Mr. FEINGOLD. Mr. President, I would like to use a couple of minutes 
of my time to respond to my friend from Arizona. I want to be clear 
there is no intention here to get in the way at all of the expedited 
removal cases or Secretary Chertoff's program. That is exactly what I 
was saying a few minutes ago. Were this limited to expedited removal, I 
probably would not be offering this amendment. In fact, we tried at 
staff level to suggest that this kind of change be made. It was 
rejected. We were forced to do this, which I do not think involves, as 
the Senator from Arizona suggests, outlier cases. These are dramatic, 
serious matters that could involve life-or-death situations for people 
all over the world who have come to this country and fear returning to 
their own countries or the countries where they may be persecuted--
which the Senator from Kansas and I illustrated.
  The Senator began his remarks by suggesting his position was existing 
law. Obviously, it couldn't be existing law if you had to propose it in 
committee. More important, he neglected to mention it wasn't just the 
ninth circuit, which of course is frequently held up as somehow a court 
we should not listen to--it is not just the ninth circuit that agrees 
with my interpretation of this, it is the first, second, third, fifth, 
six, seventh and ninth circuit that have all said this standard should 
not apply to stays.
  This is not some renegade court. It is an amazing array of courts of 
appeals around the United States. Only one circuit has taken the other 
position, and here is why.
  The Senator suggests that somehow these courts have inappropriately 
interpreted the statute. But there is absolutely nothing in the 
legislative history that suggests that this was supposed to apply to 
stays. So let's talk about what existing law is. The vast majority of 
circuits in the country have done a proper job of interpreting the 
statute. It was not supposed to apply to stays. So I again urge my 
colleagues to support my amendment.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. KYL. Mr. President, I wonder if the Senator from Wisconsin would 
answer a question that I have regarding his amendment.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. KYL. It is my understanding that current law--this is the 
Immigration Nationality Act--states:

       No court shall enjoin the removal of any alien pursuant to 
     final order unless the alien shows by clear and convincing 
     evidence that the entry or execution of such order is 
     prohibited as a matter of law.

  Is that provision of existing law impacted by the amendment of the 
Senator from Wisconsin?
  Mr. FEINGOLD. I don't believe that is impacted because that refers to 
the actual proceeding. It does not, according to the interpretation of 
the circuits, apply to the standard for stays. That is what the 
circuits have all said, except for one. That language, of course, 
applies to the main cases but does not apply in the case of stays. 
There is nothing in the legislative history that supports the notion 
that it would apply to stays, and that is how the circuits have come 
down.
  Mr. KYL. Mr. President, in view of that answer, which is greatly 
confusing to me, it is clear that the effort is not simply to eliminate 
the stay language that Senator Coburn was successful in inserting in 
the Judiciary Committee, but also the injunction language that is in 
the existing statute. I don't know that you can read it any other way. 
If the Senator from Wisconsin would like to clarify, I will certainly 
stand to be corrected.
  Mr. FEINGOLD. There is no intention to remove the language, or the 
requirement of the injunction standard. I said repeatedly here that I 
believe, on the stays, the person who is trying to avoid removal and 
trying to get the stay has to meet the standard for injunction. That is 
not the intent of the amendment.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, how much time is remaining on this side?
  The PRESIDING OFFICER. Eleven minutes remain on the Senator's side.
  Mr. SESSIONS. Mr. President, this is a very real problem in the 
American court system today. In fact, one of our Senators wants us to 
add 9 new Federal district judges as a result of immigration, and we 
are having surges of cases involving immigration appeals to the courts 
of appeals, where people can take their appeals directly if they are 
unhappy with the system that has been set up where administrative 
judges, through the immigration department, make adjudications within 
their sphere of influence as to whether someone is here in this country 
legally or not.
  We are a great Nation. We are a nation of laws. Our strength is that 
we provide a good legal system. That is why a lot of people come here, 
because they are tired of being abused in their home country. They know 
they will be fairly treated here in our legal system. It is a key to 
our growth and prosperity and liberty.
  These appeals are increasing in large, large numbers. Under this 
amendment it would have the possibility of accelerating those increases 
of appeals, a great deal of it.
  I want to say a couple of things. A person who comes to our country, 
to any country, comes at that country's sufferance. They are here 
subject to the pleasure of that country and can only stay here 
according to the laws of our country. The laws of our country give 
adjudicative immigration courts the power and responsibility to 
adjudicate those questions about whether or not a person can stay here 
or has to be removed because they violated some law.
  One of the things that is wrong with immigration today is we have so 
muddled and so complicated and so confused our thinking that we don't 
understand what has happened. So a person is here. They are here 
illegally--or at least on appeal and a second appeal and a trial and 
appeal with the immigration courts they have been adjudicated as not 
being here legally. What should happen then, I ask you? They have a 
right to appeal to the U.S. court of appeals--not even a Federal 
district judge, the court of appeals of Federal judges, where we have 
had a number of appointments recently, and it is one step below the 
U.S. Supreme Court.
  They get a right to have that, but they do not get the right to 
remain here unless that court of appeals allows them to. In fact, the 
law is clear. In the vast, vast majority of the cases, they ought not 
remain here. They have no constitutional right to remain here after the 
adjudicative branch of the Government has concluded they are

[[Page S5153]]

not supposed to be here. Their appeal can continue. They are not denied 
the right to continue their appeal. But they are allowed to go back 
home to their home country and to pursue their appeal otherwise through 
their lawyers in the appropriate way.
  They say this focuses on asylum. I would say asylum represents the 
best argument that can be made against the provisions of the bill that 
is now before us, but it does not apply just to asylum cases. It 
applies to all cases. Any immigrant who can maintain an appeal can get 
to stay in the country. We had testimony in the Judiciary Committee 
from the second circuit, a fine circuit court of appeals, that it takes 
them on average 27 months to decide one of these cases. What happens to 
that person during the 27 months, may I ask you? Two things happen. We 
have to take extremely precious bed space and leave them in custody for 
27 months--remember, these could be people with terrorist connections 
or other connections--or we have to allow them out on bail. We have one 
area in our country where it was reported that 95 percent of the people 
who were released on bail pending an immigration decision absconded.
  That means they will go on, decide their appeal and some 
adjudication, and order that he is supposed to leave. Where has he 
been? He broke into the country, presumably illegally. Is he waiting 
around? Is he now going to show up so they can deport this person? They 
have already melded into the community in an illegal fashion. It is 
part of the problem that we deal with and which is making our system 
ineffective.
  We have to simply understand that there is no right to be here after 
a final adjudication has occurred while your case is on appeal in the 
court of appeals. But we allow them to. We give them a right, if they 
can show sufficient evidence under the standards that the Senator 
mentioned, that a court can approve that and allow them to stay if they 
think they have, according to the law, convincing evidence that they 
are rightly here. The court of appeals can override the adjudicating 
authority of the Immigration Service and allow the person to stay if 
they choose. We have had an abuse of that. We have had 10,000 such 
cases. With this amendment, we are going to see even more such cases.
  I suggest that we must get serious about immigration. The more we 
create appellate possibilities, the more we can confuse the law. The 
more we create exception after exception after exception, the more 
unable we are to operate a system effectively and fairly.
  The fair principle is, if you are adjudicated not to be here, you 
have no right to be here. But we give you a generous right to appeal to 
a court one step below the U.S. Supreme Court, but you have to go home 
until that court decision. If they override it, he can come back.
  I think that is preciously generous. I think that is fair and right, 
and it also provides that court, in narrow areas, to extend and allow a 
person to stay if they feel it is necessary to do so.
  I think this is a good amendment. The Department of Justice, I think, 
understands it.
  Senator Coburn offered a good provision to the bill which was adopted 
in the Judiciary Committee. It should not be overturned here on the 
floor.
  We can be sure that those who have a good case to stay will be able 
to stay. But overwhelmingly, if you have been found not to be here 
legitimately, you are not entitled to stay, you should go home. This 
amendment undermines that principle.
  I yield the floor and reserve the remainder of my time.
  Mr. LEAHY. Mr. President, I applaud Senators Feingold and Brownback 
for proposing an amendment to correct a seriously flawed provision that 
remains in the immigration bill that we are likely to pass. Under 
section 227(c) of the bill, Federal courts of appeals would be 
prohibited from granting an asylum seeker a temporary stay of 
deportation unless the alien could prove by clear and convincing 
evidence that the order of deportation is unlawful. In many cases, this 
is the same or an even a higher standard than an alien would be 
required to meet in order to win his or her case on the merits. This 
result has been described by one Federal court as ``Kafkaesque.'' It is 
also fundamentally unfair.
  Judicial review is the failsafe that guarantees the rights of men and 
women when the law is interpreted incorrectly or when human emotion or 
bias overcomes impartiality. Judicial review helps define our 
constitutional democracy and is a value that is deeply embedded in our 
system of government. It would be a grave mistake for us to accept the 
provision in section 227(c) and to ignore the wisdom of the 
distinguished Federal judges who oppose this curtailment of their 
authority to decide these difficult cases with care and consistent with 
the traditional practices of the Federal judiciary.
  A number of Federal courts of appeal are in agreement that the 
standard contained in section 227(c) is inequitable and unworkable. The 
Second Circuit has said that requiring this standard ``would lead to 
the anomalous result that . . . an alien would have to make a more 
persuasive showing to obtain a stay than is required to prevail on the 
merits, thereby permitting the removal of some aliens with meritorious 
claims against removal.'' The Seventh Circuit has said that ``[t]he 
ability to come back to the United States would not be worth much if 
the alien has been maimed or murdered in the interim. Yet under the 
[clear and convincing evidence standard] an alien who is likely to 
prevail in this court, and likely to face serious injury or death if 
removed, is not entitled to remain in this nation while the court 
resolves the dispute.''
  Some will argue that this provision will prevent aliens from abusing 
the system by filing frivolous appeals simply to gain the stay of 
deportation. But it is unwise for us to sweep aside decent and 
humanitarian treatment for many meritorious petitioners to prevent a 
few from abusing the system. I think we need to consider very carefully 
whether we want to mandate that our Federal courts get into the 
business of remanding even one potentially meritorious petitioner back 
to certain torture or death before his or her appeal is finally 
decided. I hope others share my faith in the integrity with which our 
Federal judges carry out their duties and that these men and women are 
eminently capable of identifying and rejecting fraudulent or abusive 
cases without the need for the restrictive provision contained in the 
bill.
  We cannot live up to our American values, which abhor torture and 
human rights abuses, and at the same time allow this provision to 
remain in this bill. I urge my fellow Senators to join me in supporting 
the amendment Senators Feingold and Brownback propose.
  Mr. FEINGOLD. Mr. President, if the Senator is agreeable, I would be 
willing to yield all time. I yield my time.
  Mr. SESSIONS. I yield our time.
  The PRESIDING OFFICER. All time is yielded.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that this 
amendment be set aside and be voted on later.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, what is the time agreement at this 
point? How much time do I have remaining on this issue?
  The PRESIDING OFFICER. Once the amendment is called up, the unanimous 
consent agreement states that there will be 1 hour equally divided.
  Mr. SESSIONS. I thank the Chair. 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. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 4108

  Mr. SESSIONS. Mr. President, I call up amendment No. 4108 on the 
earned income tax credit.

[[Page S5154]]

  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Alabama [Mr. Sessions] proposes an 
     amendment numbered 4108.

  Mr. SESSIONS. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To limit the application of the Earned Income Tax Credit)

       On page 364, line 22, after ``an'' insert the following--

     ``alien who is unlawfully present in the United States, or an 
     alien receiving adjustment of status under section 408(h) of 
     this Act who was illegally present in the United States prior 
     to January 7, 2004, section 601 of this Act, or section 
     613(c) of this Act, shall not be eligible the Earned Income 
     Tax Credit. With respect to benefits other than the Earned 
     Income Tax Credit, an alien''.

  Mr. SESSIONS. Mr. President, before I get into that, I would like to 
take one brief moment to note that in an election which took place last 
night the winner got 63 million votes, more than anybody who has ever 
run for President. The winner is a fine Alabaman, Taylor Hicks, who was 
crowned ``American Idol'' winner last night. I have to tell you I am 
proud of him. We watched it closely and with enthusiasm. If my wife 
were voting in a normal election, she would be in jail because she 
voted more than once for him, I can tell you. And we are thrilled. 
Taylor is Alabama's third finalist in the show, and after last night's 
finale, he became the second person from Birmingham to be crowned 
``American Idol.'' Of course, that followed Rubin Studdard's victory 2 
years ago, and Bo Bice as a runner up last year. We are proud of that 
fact and we are proud of Taylor Hicks being crowned ``American Idol.''
  Mr. President, I am also pleased that the sponsors of the immigration 
bill we are debating accepted my preemption amendment that I originally 
offered in committee. That provision, which was included in the current 
bill, relates to day labor centers and is included in title III. My 
amendment makes clear that the provisions of title III which regulate 
the recruiting, referring and hiring of undocumented aliens, preempt 
any State or local laws. The laws it preempts are those that require 
business entities, as a condition of conducting, continuing or 
expanding a business, to provide, build, fund or maintain a shelter, 
structure or designated area for use by day laborers at or near their 
place of business or take other steps that facilitate the employment of 
day laborers by others. Language identical to this preemption provision 
in the current Senate bill was included in H.R. 4437, the bill passed 
by the House of Representatives.
  Empirical research proves that day laborers in the United States are 
used overwhelmingly by undocumented migrants. I would like to enter 
into the Record along with this statement, an extensive January 2006 
study of the day labor issue in this country entitled: ``On the Corner: 
Day Labor in the United States,'' by Abel Valenzuela Jr. and Ana Luz 
Gonzalez of the UCLA Center for the Study of Urban Poverty; Nik 
Theodore of the University of Illinois at Chicago, Center for Urban and 
Economic Development; and Edwin Melendez of the New School University, 
Milano Graduate School of Management and Urban Policy. The findings in 
the study are based on a national survey of day laborers drawn from 264 
hiring sites in 139 municipalities in 20 states and the District of 
Columbia. A critical finding of this national survey, page 17, is that 
three-quarters of the day labor work force is comprised of undocumented 
migrants.
  The scope of title III goes beyond the prohibition of the direct 
hiring of an unauthorized worker or the requirement that employers 
electronically verify the validity of the work authorization documents 
they are provided by applicants. It also prohibits persons from 
recruiting and referring undocumented workers and facilitating the 
employment of undocumented workers. A number of local governments have 
taken actions or sought to impose ordinances that facilitate the 
employment of day laborers, many of whom are not authorized to work in 
this country. Local governments have done this by providing public 
funding of day laborer centers that act as gathering places where 
employers can hire day laborers, and by requiring, as a condition of 
conducting their businesses, that business entities build and maintain 
day laborer centers on or near their property to facilitate the 
employment of day laborers by customers or contractors.
  In some instances, these local governments even force employers, as 
condition of doing business, to hand out to day laborers a written 
description of their employment rights under the law. There is no doubt 
that these local governments are directly or indirectly forcing these 
businesses to attract and recruit these day laborers to their property 
and facilitate their employment by customers and contractors. They are 
forcing these businesses to create what amounts to hiring halls in the 
form of day labor shelters. These ordinances or proposed ordinances 
expose these businesses to liability under the employer sanctions 
provisions of title III by forcing them, as a condition of conducting 
business, to act as agents of the day laborers in facilitating their 
employment. While these businesses may not hire the day laborers, they 
are forced to be parties to the hiring process, for which they face 
potential exposure to liability under section 205 and title III of the 
Senate bill, and the harboring provisions of section 274 of the 
Immigration and Nationality Act.
  These local ordinances and practices put businesses in an untenable 
position. Businesses oppose ordinances that provide for the 
accommodation of day laborers on their property, particularly when 
these laborers are undocumented workers. Some local governments deny 
licensing essential to expand or maintain their business if they do 
not. It is a no win situation that Congress must address consistent 
with the overall purpose of this legislation.
  Without the preemption provisions I have offered to this bill, there 
would be a gaping hole that would allow public entities to foster the 
employment of day laborers, whom the recent study I have cited shows to 
be largely undocumented workers, and force, through their regulatory 
and licensing authority, businesses to be their agents in this process. 
This flies in the face of the overall intent of this bill, which is to 
control our borders and eliminate the job magnet for undocumented 
workers to enter this country. Through the preemption language that I 
have added to title III, we have exercised the uniquely federal role 
given to the Congress under the Constitution to regulate illegal 
immigration into the U.S. and to prohibit State and local governments 
through local regulatory authority to thwart the intent of Congress to 
prohibit the hiring and facilitation of hiring of undocumented workers.
  Mr. President, let me share a couple of thoughts fundamentally about 
the immigration bill that is now before us.
  The question of immigration is clearly one of the most important 
issues of our time. This vote will be one of the most momentous of our 
decade. The American people know that. That is why they are engaged in 
this debate. That is why they are watching it. That is why your phones 
are ringing in your offices and mail is pouring in. They care about it. 
They are focused on it, and they want something done.
  A lot of people say, Well, they are angry at immigrants, they are mad 
at immigrants, they want to punish them, and they are not fair and 
generous. That is not so.
  You know who the American people are mad at. I will tell you who they 
have a right to be mad at, and that is the governmental officials they 
sent to Washington who refuse to create a lawful system of immigration 
to enforce the laws that have been passed by this Congress. That is 
what they are mad about. They have every right to be mad about it.
  They were angry in 1986. What did we do? We passed an amnesty bill 
that promised enforcement in the future. It was utterly not so. The 
amnesty took place immediately, and the enforcement never occurred. 
They have been asking, What is going on?
  In 1986, we found that there were 3 million people who came forward 
to claim amnesty, and now they tell us 20 years later that there are 11 
million people here illegally. Why shouldn't they be frustrated? They 
are not against immigration. The American people are not against 
immigration. They are worried about a system that is lawless, 
unprincipled, and indeed makes a mockery of law. And they

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have every right to be so. They should not be forgiving if we try to 
pull another fast one by passing a deeply flawed bill. I don't think 
they will be forgiving. The problem is, this is a deeply flawed bill. 
It is not going to accomplish what the goals are for immigration in 
America. That is a plain fact.
  It is amusing now to see the sponsors of the bill when confronted 
with the problems, and those who say they are going to vote for it, and 
say they do not like it, a lot of them, but they are going to vote for 
it. Do you know why they say they are going to vote for it? Because 
maybe the House will save us in conference.
  What a weak argument, that the great Senate of the United States, 
dealing with one of the most important issues of our time, is reduced 
to saying, We know this bill is flawed, we know we have problems, maybe 
somebody in the House can fix it, but I am going to sign my name and I 
am going to cast my vote to pass it. First of all, immigration will not 
end if this bill is not passed. There is not going to be mass 
deportation of people from America if this bill is not passed.

  We should do what I suggested several months ago when they tried to 
run this bill through. Remember, about a month ago, they tried to move 
this bill through this Senate without any amendments. Harry Reid, the 
Democratic leader, said we are not going to have any amendments. They 
tried to move it through, just slide it through, so the American people 
did not know about it. Senator Frist finally said, no, we will pull the 
bill, and they reached an agreement that we would have some amendments. 
But the bill that hit the floor, as I said at the time, was so deeply 
flawed, it would never be able to be fixed by the amendments we could 
bring up. I know Members care about this issue, as do I. They want 
immigration to continue, and so do I. I can support an increase in 
legal immigration.
  What I am saying is we are voting on a bill, not some vague picture, 
not some emotional deal. We have legislation before the Senate. Will it 
do what we tell the American people we are going to do? Will we be 
honest and faithful with the American people when we say this piece of 
legislation is a comprehensive fix of immigration problems in America? 
I submit not.
  As time has gone by, more and more people have seen this is a totally 
flawed bill. People are getting more and more worried. They had no idea 
and I am not sure the sponsors knew of a lot of the weaknesses and 
problems with the legislation. Some have been changed by amendment but, 
trust me, there are many more.
  Briefly, I will mention the fundamental flaws in the legislation. 
These are fundamental. What I am going to talk about today is not some 
nitpicking over the error of a draftsman. I am talking about 
fundamental flaws in the bill that make it unpassable, legitimately, in 
my view. It should not be passed. That is why I have said it should 
never, ever become law.
  First, the people now here illegally, the 11 to perhaps 20 million 
people here illegally, will be given, over a period of years, every 
single benefit this Nation can bestow on its citizens. That is amnesty. 
In my mind, that is amnesty. I have tried not to use the word 
``amnesty'' in the sense that is automatically disqualifying. What I 
have tried to say is we should not give those who violate our laws to 
get here every single right we give the people who wait in line and 
come lawfully. That is a very important moral and legal principle.
  In 1986, those who opposed that amnesty, warned that if we do so, 
more people will come and they, too, will expect amnesty. We will have 
increased numbers in our country, and we will be forced to grant more 
amnesties in the future. That is exactly what they said. Go back and 
read the debate. Who proved correct? The other side said it is a one-
time amnesty, we will enforce the law in the future, and the result was 
3 million people were given amnesty. The laws were not enforced. Twenty 
years later, we have 11 million people here, and we are talking about 
another amnesty. We should not do that. Whatever word you want to use, 
amnesty or not, we should not do that.
  Second, the border is not secured by this legislation. We have not 
worked out the difficulties on the border. T.J. Bonner of the Border 
Patrol Agents Association, as reported in the paper on Monday in the 
Washington Times, said the House bill will not work and the Senate bill 
is ineffective. Why should we pass a bill the experts say will not 
work?
  Now, under our procedures, we can authorize fencing. My amendment to 
add some fencing passed. We can authorize electronic equipment. We can 
authorize more agents. We can authorize more bed spaces. But will we 
fund it? Will we maintain a determination in the years to come to make 
this system work?
  I submit that without the Isakson amendment, which simply says that 
until the Congress fulfills its authorization requirements under the 
bill, the amnesty cannot take effect. When it was voted down in this 
Senate, every American had to know right then there was no commitment 
to make this system work. If not, why didn't they vote for it? All it 
said was if we fulfill the things we authorize, amnesty can be given, 
if they choose to do amnesty, which remains in the bill.
  The US-VISIT system is not working. The agents and beds and fences 
are not up. What about the workplace? That is a critical component in 
our legal system. The workplace verification system is not in place. 
There is only a pilot system. We have not worked out the Social 
Security number problem. It is not fixed. We voted down an amendment so 
weak in dealing with that. We have not fixed that problem. So the 
workplace is not fixed.
  They say it is a temporary guest worker program, but it is not. The 
bill does not have temporary guest workers. People come into this 
country, and they ask for a green card as soon as they get here. We 
vastly increased the number of green cards that can be issued. And 
everyone comes in under the rubric, the big print in the bill that says 
``temporary guest worker'' and will be able to file for a green card 
through their employer the first day they get here. Soon they will get 
that green card unless they get in some sort of trouble, and that 
entitles them to legal, permanent residence. Within 5 years of that, 
they can become a citizen.
  This idea that it is a temporary guest worker program is as phony as 
a three-dollar bill. I hope we never hear that word mentioned in the 
Senate anymore. We should have one. That is what the President says he 
wants. The American people understand that and would be more supportive 
of that. That is precisely what we need: a good, temporary guest worker 
program and another program to allow people to come into the country to 
citizenship. But we do not have that. They sold this as a ``temporary 
worker program'' when it is not.

  The bill will increase immigration legally by at least three times 
the current level. We have had no study which justifies that. Three 
times the current level? Has anyone heard a national discussion or 
discussion in the Senate about that? No.
  We have conducted no official study of the huge adverse financial 
impact this bill will have in the outyears. Any legislative body 
serious about this issue would have known of this problem long ago. 
Even before the bill was drafted, they should have known we would have 
these consequences. The Heritage Foundation has estimated that in the 
10th, 11th year, through the next 20 years, this bill will cost $50 
billion a year. That is more than the budget of Homeland Security. It 
has tremendous financial costs. We will have some increased taxes, yes, 
but in the outyears it will not compensate for this. The reason is, the 
people who will be given amnesty, a certain high percent of them, 
unfortunately, do not have a high school diploma. Once they become a 
legal permanent resident, once they become a citizen, they are entitled 
to all the panoply of welfare and social benefits our country has.
  We have taken no steps to ensure this country's immigration policies 
reflect our Nation's needs. Canada, England, Australia, France, 
Switzerland, and the Netherlands are working on that. Canada has a 
point system. They evaluate people based on what they can contribute to 
the Canadian economy, and then they decide whether to let them in. We 
have nothing like that.

[[Page S5156]]

  We know, from my analysis of the bill, it will allow in three times 
as many people, legally, as we allow in today, and that 70 percent of 
those will be admitted without regard to what skills, education, or 
English language capabilities they have. That is not a good principle. 
That is not what Canada does. Is Canada a backward nation? I submit 
they are smarter.
  There are a number of reasons we need to vote down this bill. One of 
them is the huge financial cost. I will talk about one of the most 
dramatic costs this bill will impose on the American taxpayer.
  I offer an amendment to deal with the extraordinary financial impact 
that will accrue to the American taxpayers as a result of the 
legalization of 11 million people here today. I asked the CBO, the 
Congressional Budget Office, what the score would be with regard to 
earned income tax credits. They scored that over 10 years. It would 
cost the taxpayers of this country, this single program alone, $29 
billion. As soon as we allow people into our country who are here 
illegally now, to convert to legal status under the language of this 
bill, they will immediately become eligible for the earned income tax 
credit. Most of these are low-skilled workers. They are not high school 
graduates. They are making the lower wages. They will qualify for that.
  Hold your hat. The average person who receives an earned income tax 
credit check from the Federal Government receives $1,700 a year. The 
maximum amount you can receive under it is $4,700 a year. These are 
huge welfare payments designed to help working families, American 
working families. It started in the 1970s. It cost about $1 billion 
then. The figure today is closer to $39 billion, one of our largest 
welfare programs. It has a lot of fraud, a lot of criticism, but it was 
designed with good intent, and it remains a good part of how we assist 
lower income people in America. These people will immediately become 
eligible for that benefit.
  When they become citizens, they are entitled to all the benefits. If 
they go through this process and we provide a path to citizenship, they 
will get that, and we cannot prohibit that. I would not want to 
prohibit that. I don't intend to prohibit that. We would not want to. 
But prior to that time, they are not entitled to it.
  Let me state why. As a matter of law and as a matter of fairness, we 
should not reward them with this. People who come to the country 
illegally want to work here, we are told. They do not want to be on 
welfare. They are not asking for anything special. They just want to be 
able to work in our country. We have allowed them to do that. They have 
not asked for, in my view, welfare; they are not asking for it and are 
not entitled to it. So what happens when they convert to a legal 
status? Are they then entitled to this gratuitous, generous program of 
the United States of America that was designed to help American 
families who have workers trying to get ahead, they get a little extra 
money each year? Should they be able to participate in that program? I 
say no. I say there is no moral or legal reason that requires us to 
provide this benefit as a reward and an inducement for those who have 
come here in violation of our laws. It is just not required of us. And 
it is not smart of us.
  People ask: How are we going to afford the fences and the several 
billions for the cost to enforce the border? They cannot find the money 
for it. I can tell you where we can find the money. They say that if 
you built a fence all the way across the border, 2,000 miles--our bill 
has 370 miles of fences--it would cost $4 billion or $6 billion. You 
have heard them say that.
  This legislation, under the earned income tax credit alone over 10 
years, will increase, according to the Congressional Budget Office, our 
outlays by $29 billion.
  We can pay for the whole enforcement system on our border by not 
giving this gratuitous benefit to people who come here in violation of 
the law. They will be able to stay. They will be able to work. They 
will have medical care. They will have education for their children. 
They will have all those things provided to them free from the Federal 
Government or State governments, if need be. They get all those things, 
but they are not entitled and should not be provided the earned-income 
tax credit, in my view.
  They say: Well, they will pay taxes in the future. OK. Well, how long 
have they been here not paying taxes? It is just not possible for us to 
do everything. And this Government ought to ask: Why should we--out of 
fidelity to the taxpayers of our country, who already see that we are 
spending recklessly, and already have a major deficit--why should we 
provide this benefit? I do not think we should.
  The entire concept of earned legalization is muddled in this bill, in 
my view. But that aside, what should we do about the cost and the 
benefit that could be given to these people? Do we need to provide them 
an extra welfare benefit that they have no expectation of ever getting?
  By the way, I told you earlier, that the amount of money this benefit 
would cost over the next ten years was projected to be $29 billion by 
CBO. That was based on their estimate a few days ago that we would have 
6 million to 7 million people who would be given amnesty under this 
bill. Just yesterday, we received a letter from them that said those 
numbers were wrong. They are now estimating it would be 11 million 
people coming in. So I would submit, if you take that increased number 
and you apply it to the $29 billion estimate we have, we are talking 
about at least a $40 billion outlay over the next 10 years. But $29 
billion, $40 billion, $39 billion, whatever the figure is, it is very 
large.
  It is not necessary we provide this transfer payment, this outlay 
from our Treasury, directly to people who have come here illegally, and 
reward them in that fashion. What we should do is proceed forward. And 
if they move their way on to the path of citizenship, they would be 
entitled to it.
  I thank the Chair and retain the remainder of my time.
  The PRESIDING OFFICER. Who yields the time?
  Mr. McCAIN. Mr. President, I yield myself such time as I may use.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, here we go again. We have before us 
another amendment that says legal workers under this bill must play by 
our rules--by our laws--but they will not be allowed to live by those 
same rules.
  I know that my colleagues know that illegal immigrants are ineligible 
for the earned-income tax credit. The legislation before us does not 
change that fact. But this amendment incredibly--incredibly--would deny 
the earned-income tax credit to taxpayers who will be working in this 
country legally as a result of this legislation. Remarkable.
  I want to point out again, it would deny an important tax credit to 
some low-income workers who have legal status who are playing by the 
rules, meeting all the requirements of the legislation, who might 
otherwise be eligible for the earned-income tax credit.
  Some things are within a certain area that I can probably understand 
the rationale behind it and legitimately respect and argue against. But 
what is the rationale behind saying people who have attained a legal 
status here, who are living by all our other laws and rules and are 
paying taxes--sales taxes, Social Security, et cetera, every other 
tax--are going to be denied a tax credit that is available to all other 
persons? We are not saying in the legislation that anyone who is here 
illegally would make themselves available to that. We are only talking 
about people who are here in a legal status.
  The legislation is designed, rightly, to ensure that legalized 
workers and new guest workers would largely be taxed in the same manner 
as U.S. citizens. If they have attained a legal status, then clearly 
they should pay the taxes. They would pay payroll taxes, income taxes, 
excise taxes. They would pay back taxes for the period of time they had 
been working in this country prior to the enactment of this bill. 
Payment of back taxes is a very important part of this bill.
  The CBO and Joint Tax Committee estimate that bringing these legal 
immigrants into the Federal tax system would substantially increase 
Federal revenue collections overall. It is patently unfair to make them 
abide by our tax rules yet deny any legal workers equal treatment under 
these same rules.
  I am having a hard time understanding amendments as this which

[[Page S5157]]

would really impose an indefensible double standard on legalized 
workers. What is next? Are we going to say work-authorized immigrants 
have to ride in the back of the bus? Some of these amendments are 
sending a very troubling message to the American public about what 
direction we want our country to go. We need to be going forward and 
not backward.
  I wonder, do some of my colleagues really think there is an 
underground movement afoot plotting and scheming plans for how foreign 
workers can gain legal work status solely so they can freeload off of 
the taxpayers? These people are here to work, and they are doing jobs 
that most of us do not have the will to do. These are workers. They are 
not risking their lives to come into this country with the goal of 
freeloading off of us. They are here to earn a wage for the betterment 
of themselves and their families, the same reason our forebears came 
here to this country. They aren't looking for a handout. They are 
looking for a chance, a chance for a better life. And they are willing 
to work harder than most of us to have just a few of the opportunities 
most of us take for granted.

  This amendment, if adopted, would result in highly inconsistent 
treatment of legal workers--legal workers. On the one hand, they would 
be subject to income and payroll taxes in the same manner as other 
workers, but on the other, they would be denied the use of a key 
element of the U.S. Tax Code that can mean the difference of whether or 
not food gets put on a child's table.
  About 98 percent of the earned-income tax credit goes to working 
families with children. Census data shows that the EITC lifts more 
children out of poverty than any other Federal program. This amendment 
to deny the EITC to legalized workers would harm children, including 
many children who are U.S. citizens. Many of the children in these low-
income families are citizens who live in families that experience 
hunger and other hardships.
  This amendment, if adopted, would mean that a large number of 
children would be thrust into, or deeper into, poverty. An Urban 
Institute study found that 56 percent of young, low-income children of 
immigrant parents live in families that experience hunger or other 
food-related problems. It seems to me there is an issue of humanity 
here on this issue.
  We have spent a week and a half debating amendments to this bill. 
Most of the amendments that were designed to alter substantially the 
comprehensive approach to immigration reform have failed. But they were 
debated on and voted on. I think that has been a good showing for the 
Senate. I think we have shown we can debate honestly and openly and 
reach conclusions. Some of these issues have been complex and some 
fairly simple. We have been conducting business the way the place is 
meant to have it conducted.
  I hope that after all this effort, we will not now adopt such a 
questionable amendment to a bill that provides a comprehensive solution 
to our broken immigration system--a solution that is based on sound 
judgment, honesty, common sense, and compassion.
  Mr. President, I really, on this one, would like to see not just 
victory in this vote but a significant signal that we would not engage 
in this kind of treatment of people who have come to this country and 
are in a legal status.
  I urge my colleagues to defeat this amendment.
  I reserve the remainder of my time for Senator Specter.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I anticipate this amendment will not 
require too much longer. Our final amendment in the sequence is the 
Ensign amendment. So I alert our colleagues to the fact that we should 
be starting on that amendment fairly soon.
  Senator Sessions has, I believe, 7 minutes left. Senator Kennedy and 
I will take just a few minutes in opposition to the amendment and then 
yield the remainder of the time back.
  Mr. President, it seems to me this is a fairly fundamental issue. We 
have the earned-income tax credit designed to provide tax relief for 
low-income families and individuals. And if you qualify for it, as a 
taxpayer, it seems to me, when you are obligated to pay the taxes and 
bear the burdens of the tax system, you ought to be entitled to the tax 
credit, and the fact that they are undocumented immigrants should not 
impose a penalty on them.
  We are dealing here with people of very limited means. We are dealing 
with people who ordinarily may--probably do--have large families. They 
are fighting rising costs of living and fighting to maintain their 
sustenance, and they are at the bottom end of the economic ladder.
  So if they are in line to get a modest earned-income tax credit, 
which, as the language says, they have earned, it is a tax credit that 
is an income tax credit they have earned. Just as they have to pay 
their taxes, they ought to get the benefits from the tax system. 
Therefore, I oppose the amendment.
  Mr. President, I yield the floor.
  Mr. BINGAMAN. Mr. President, I rise today in strong opposition to the 
amendment being offered by my colleague from Alabama, Senator Sessions. 
As drafted amendment would prevent legalized workers and guest workers 
from receiving the earned-income tax credit even though these same 
workers are required to pay both income and payroll taxes. I remind my 
colleagues that, under current law, illegal workers are not entitled to 
the earned-income tax credit and S. 2611 does not change that. Instead, 
this amendment denies people who are paying both income and payroll 
taxes a tax credit that other similarly situated taxpayers receive 
simply because these people are legalized workers and guest workers and 
not naturalized citizens. This is distinction that should have no 
relevance for purposes of receiving the earned-income tax credit. To 
deny these legalized taxpayers the right to the earned-income tax 
credit is unjustified and grossly inequitable.
  It is my understanding that CBO recently estimated that the workers 
affected by this amendment will be paying more than $62 billion in 
taxes over the next 10 years. This will result in a net of more than 
$33 billion in revenue after the costs associated with all refundable 
credits are taken into account. Mr. President, we haven't seen a $33 
billion revenue raiser in this Chamber in quite some time.
  Earlier this month, we passed a tax cut that provides a significant 
tax cut to the wealthiest in our country. The reconciliation bill was 
passed in spite of the fact that it provides little to no tax relief to 
the majority of the families in our country while raising our Nation's 
debt by roughly $70 billion. The proponents of this legislation were 
quick to defend this bill even though it employed a series of budget 
gimmicks that would make Enron proud. Those of us who spoke out in 
opposition of this bill were repeatedly told that allowing the capital 
gains and dividends tax cuts to expire amounted to a tax increase--one 
that would surely cripple our economy if not passed this year even 
though the provisions didn't expire until the end of 2008. I find it 
truly astonishing that a few short weeks later, we are debating an 
amendment that denies hardworking taxpayers a tax break that they so 
desperately need and are entitled to under current law. Clearly those 
who argued that allowing the capital gains and dividends tax cuts to 
expire is essentially the equivalent of raising someone's taxes, have 
to agree that taking away the earned-income tax credit from a working 
taxpayer is a tax increase. Unfortunately, the target of this tax 
increase is on hard working, lower income families--people who truly 
need this tax break to get by.
  The eanred-income tax credit is one of the few remaining tax 
provisions in our code that provide significant tax relief to working 
families. As my colleagues know, it is one of the greatest tools we 
have to fight poverty and allow working families to have a roof over 
their head and food on their table. It is a way to ensure that those 
earning minimum wage jobs are able to put clothes and shoes on their 
children so that they can go to school. This is not a hand out. In 
order to get the earn-income tax credit, you have to work. Pure and 
simple. To deny this credit to legalized workers and guest workers who 
pay income and payroll taxes is not what this country is all about. It 
is certainly not in keeping with the bipartisan way this Chamber has 
defended the earned-income tax credit and its recipients from misguided 
attacks.

[[Page S5158]]

  I hope that all of my colleagues will join me in defeating this 
amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I will just take a few minutes. I know 
the Senator from South Carolina wants a few minutes. And then we will 
be prepared to move ahead.
  Mr. President, as has been pointed out during this debate, all of the 
men and women who would become legal residents of the United States 
under the terms of this legislation are required to pay income tax, 
like every other worker in America.
  What the Sessions amendment would do, is really quite extraordinary 
and grossly unfair. It would arbitrarily deny those immigrants who have 
become legal residents one of the tax benefits available to every 
taxpayer under the Internal Revenue Code. That provision is the earned-
income tax credit, a provision designed to reduce the tax burden on 
low-income families with children.
  It is fundamentally wrong to subject immigrant workers to a 
different, harsher Tax Code than the one that applies to everyone else 
in the country. An immigrant worker should pay exactly the same income 
tax that every other worker earning the same pay and supporting the 
same size family pays--no less, no more. We should not be designing a 
special punitive Tax Code for immigrants that makes them pay more than 
everyone else. Yet that is exactly what the Sessions amendment seeks to 
do.
  The Sessions amendment would result in highly inconsistent treatment 
of legal immigrant residents and would drastically increase the amount 
of tax that many of these families had to pay. They would be subject to 
income and payroll taxes in the same manner as other workers, but would 
be denied the use of a key element of the Tax Code that is intended to 
offset the relatively heavy tax burdens that low-income working 
families, especially those with children, otherwise would face.
  Most of the EITC is simply a tax credit for the payment of other 
taxes, especially regressive payroll taxes. The EITC was specifically 
designed to offset the payroll tax burden on low-income working 
parents. The Treasury Department has estimated that a large majority of 
the EITC merely compensates for a portion of the Federal income, 
payroll, and excise taxes paid by the low-income tax filers who qualify 
to receive it.
  The earned-income tax credit is not welfare; it is an earned benefit 
in the Tax Code that is available to all tax paying, low-income working 
families with children.
  Immigrant families who are legal residents are subject to the same 
tax as other workers in America. They have the same tax burdens, the 
same tax benefit as everyone else under current law. The Sessions 
amendment would change that, depriving legal immigrant families of one 
of the primary tax benefits for low-income families with children in 
the Tax Code. To do so would be terribly unjust. I urge my colleagues 
to reject the amendment.
  I yield 4 minutes to the Senator from South Carolina.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from South 
Carolina.
  Mr. GRAHAM. This amendment is important in this regard. When is it 
enough? When does the punishment fit the crime and when does it go too 
far? What role should tax policy play in punishing a violation of the 
law, whether it be a misdemeanor or a felony? I can tell you the role 
the Tax Code plays when it comes to felonies. If you are a drug dealer 
and you have been convicted and you are on probation or in jail, once 
you get out or off probation, you are not denied the earned-income tax 
credit. If you are a convicted child molester, the Tax Code doesn't 
change because of your crime.
  I would argue that for the crime we are dealing with, coming across 
the border illegally, jumping in line, a nonviolent offense, we need to 
have some reasonable punishment and not go too far. If we change the 
Tax Code because they violated our law, then how do we look people in 
the eye in the category of illegal immigrants and tell them that they 
are being punished through the Tax Code in a way a rapist, murderer, or 
drug dealer is not? That is not proportional.
  It is a misdemeanor under our law to cross the border illegally with 
no specified crime, a maximum of 6 months in prison. I have been a 
prosecutor. Senator Sessions has been a prosecutor. I can assure you, 
there are people who do really bad things that don't have to go through 
what the illegal immigrants are going to go through to earn their way 
back into our good graces. They have to pay a fine consistent with a 
misdemeanor offense. They have to learn English. If you have committed 
a felony outside of immigration law, you are not eligible to get in the 
program. If you have committed three misdemeanors outside of 
immigration violations, you are not eligible to get in the program. If 
you fail the English test, if you are out of work for over 45 days, you 
are subject to being deported.
  What is left will be hard-working people who are trying to pay their 
debt back to society and, on top of all that, have to pay all of our 
taxes. And they should. It would be great if everybody working in 
America paid their fair share of taxes. It would be unfair, after you 
try to pay your debt to society by making it right after violating the 
immigration laws, which is a misdemeanor, to throw on top of that Tax 
Code treatment that no other felon would get.
  There is a point in time here where we are going to not just punish 
people for a violation of the law but declare war on who they are. I 
don't want to cross that line as a nation.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. How much time remains?
  The PRESIDING OFFICER. The Senator from Massachusetts has 14 minutes 
remaining, and there is 7 and a half minutes remaining for the Senator 
from Alabama.
  Mr. KENNEDY. I yield 5 minutes to the Senator from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. I thank the Chair. I thank Senator Kennedy.
  Mr. President, I rise respectfully to oppose this amendment. Under 
it, workers who are in this country legally, as a result of the 
underlying reform bill before us, would be prohibited from receiving 
the Federal earned income tax credit. Yet these same workers would be 
required to pay both income and payroll taxes. That seems unfair. In 
other words, we are going to bring them out of the shadows. We are 
going to get them to pay taxes. But we will not allow them access to 
the EITC.
  Once they have earned legal status, these workers would be no 
different from citizens or other legal residents who pay the same taxes 
and, if they have low incomes, qualify for the EITC.
  Some have expressed concern that the underlying bill would increase 
Federal spending for programs such as EITC. It would. But you have to 
consider the pluses and minuses. In fact, the Congressional Budget 
Office recently completed a cost estimate of S. 2611, the underlying 
bill, and found that the legislation as a whole would raise Federal tax 
revenues. New tax filers, people who come out of the shadows and become 
tax-paying citizens, are required by this proposal, as part of their 
path to citizenship--I call it probation, not amnesty--are projected to 
pay more than $60 billion in payroll and income taxes over the next 10 
years. Once you factor in the cost of refundable credits provided to 
these workers, such as the child tax credit and the EITC, the net 
increase in revenues is still a significant $33 billion over the next 
10 years. It would be unreasonable for us to force these new workers, 
who are legal and many of whom will be in the process of becoming 
American citizens, to pay all these taxes and not be allowed to claim 
the earned-income tax credit.

  As has been acknowledged, undocumented immigrants are already 
ineligible for the EITC. If you are here illegally, you can't qualify 
for the EITC. We should not deny this tax credit to low-income 
taxpayers who are working in this country legally.
  One particularly troublesome effect of this amendment, I fear, were 
it to be enacted into law, is that it would further impoverish some of 
our Nation's poorest children. Because the fact is, 98 percent of 
earned income tax credit payments go to working families with children.

[[Page S5159]]

  Let me briefly recite the history of this remarkable program. The 
earned-income tax credit was first proposed by President Richard M. 
Nixon. It was signed into law by President Ford. Since then, it has 
been expanded, because it has worked, by Presidents Reagan, Clinton, 
and Bush. These Presidents saw the program as a way to help promote 
work and offset regressive payroll tax burdens on low-wage workers. 
That is the point. We know that on so many average, lower-income, 
middle-income workers, the great increase in Federal taxes has not been 
the income tax. It has been the payroll tax deductions. The EITC was 
created to help even that out.
  It also has an effect on wages or effective wages. The Federal 
minimum wage has not been raised in more than 8 years. By one standard, 
the minimum wage is valued at its lowest level since the Truman 
administration. Many of the immigrants who earn legal residency under 
the Senate bill will have earnings around the minimum wage. I hope we 
will act to raise the minimum wage this year. But in the interim, 
particularly if we don't, we certainly should not adopt legislation 
that will condemn large numbers of low-wage legal workers to work 
effectively below the poverty level, even though they are getting the 
minimum wage.
  This Senate bill does not create an immediate path to citizenship. 
Because of that, the amendment before us would subject millions of low-
income workers to a regressive tax burden for as much as 11 years 
before they become eligible to receive the EITC. It is probably a 
minimum of 11 years.
  I urge my colleagues to consider the administrative burden this 
amendment would impose on the IRS which would have to determine the 
immigrant status of many tax filers. The IRS is not currently equipped 
to make such determinations; that is, to determine the immigrant status 
of tax filers. It would be costly to implement new procedures. The 
amendment would probably add to the heavy paperwork burden already 
faced by those who file for the EITC.
  The point of this comprehensive immigration reform is to bring people 
out of the shadows, to end the exploitation that some of them have 
lived under, to make them part of the American economy and give them 
the ability to compete fairly at prevailing wage rates with American 
workers, to offer them the equal protection of the law--I stress that, 
the equal protection of the law--requiring them to live by the law, 
requiring them to pay taxes, but also promising them that they will 
receive the equal protection of the law. That must include our tax 
laws, including the EITC. I urge my colleagues to vote against this 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I think we are prepared to yield back the 
remaining time on this amendment.
  Mr. SESSIONS. I would like to speak further.
  Mr. KENNEDY. Then I will withhold.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, let's talk about the question of whether 
these ``legal'' workers have followed the rules and are entitled to 
this benefit. Those granted amnesty under this bill entered the country 
illegally, and have not followed the rules. At this very moment, the 
law says they are illegal and subject to deportation from the United 
States. Many of them have filed false Social Security numbers and 
committed crimes of that kind. We are not going to deport them. We are 
going to allow them to stay here. We are going to be generous to them. 
We are going to figure out a way that under this bill the vast majority 
of them will be on a path to full citizenship. Anybody that becomes a 
full naturalized citizen would be entitled to the earned income tax 
credit.
  My colleagues have said we are punishing these individuals by giving 
them amnesty. They don't say we are punishing them by saying they have 
to pay a penalty. They are not saying we are punishing them by saying 
they have to pay taxes if they owe them. One said we are declaring war 
on who they are.
  Those kinds of words and phrases indicate the bankruptcy of the 
argument that is being put forth. Under current law, they are not 
eligible for the earned income tax credit. Under current law, they 
should not be here. They are here illegally. We are now going to pass a 
law that is going to allow them to stay here, that will give them free 
medical care, that will give free education for their children, and 
allow them to utilize all the services this Nation has put together 
through the taxpayers of America. Then we are prepared, under this 
bill, to give these illegal aliens, prior to the time they become a 
citizen when we change the rules, $40 billion of the taxpayers' money. 
What offsets do we have? What efforts or plans have been made to pay 
for that over the next 10 years?
  Let me ask my colleagues: If we change the rules and we say we are 
not going to enforce the criminal laws against you or the immigration 
laws, why can't we say: you can stay here and, for the overwhelming 
majority under this bill, you are on a path to citizenship, but you do 
not get to claim the tax credit? This is a transfer payment. It is 
classified as an outlay by the U.S. Treasury.
  I was disappointed to hear a Senator try to compare this to having to 
go to the back of the bus. I introduced and was pleased to see passed a 
resolution that gave the Congressional Gold Medal to Rosa Parks. It was 
given to her in the rotunda of the Capitol before she died. She is from 
Montgomery, AL. She was mistreated simply because of the color of her 
skin, and she was required to go to the back of the bus because of the 
color of her skin. I don't appreciate the suggestion that this 
amendment is against civil rights. These people broke the law by 
entering the country illegally, and should not be able to take 
advantage of this tax credit. This is a fair response of the American 
people. Let me ask this question: What about Rosa Parks' descendants 
who are paying taxes today? Their wages may be reduced this very day 
because of a large surge of illegal immigrants. This bill would 
increase that by threefold. Who cares about their wages perhaps being 
reduced as a result? And it is their money that will be paid to fund 
this $40 billion transfer payment to people who come here illegally. We 
are simply not required to give that benefit.

  Now, what about taxes? They say they pay taxes. The truth is that 
lower-wage people--and most of these are lower-wage people--don't pay 
income taxes. They pay Social Security taxes, but they will get Social 
Security under this proposal. They don't pay income taxes because they 
are low-wage. If they have children, they don't pay. Most of the people 
that get the earned income tax credit don't pay any federal income 
taxes. At the end of the year when they file a tax return they get, on 
average, $1,700 per person. Some get as much as $4,700. It is not just 
families that are eligible for this credit. Single people get it, too, 
though not as much. It is an income tax credit. It is a payment to 
them.
  I suggest that this is an important issue and that we think about our 
responsibility. We could pay for the entire enforcement mechanism for 
the border of the U.S. by simply not rewarding those who have come here 
illegally, who never expected to receive this benefit, with $40 billion 
in transfer payments. That is not punishing them. They are free. They 
are able to go back if they choose. They are able to work if they 
choose. They are able to carry on their own activities and make 
choices. But they are not entitled because we give them the benefit of 
legal status to receive this transfer payment that is provided for our 
people under current law.
  I yield the floor and reserve the remainder of my time.
  Mr. McCAIN. Mr. President, I ask the Senator for 3 minutes.
  Mr. SPECTER. Yes, I yield 3 minutes to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, as I understand the remarks of the Senator 
from Alabama, these people are not mistreated, as others in our society 
have been mistreated. Wouldn't an objective observer view mistreatment 
as giving someone legal status in the United States, forcing them to 
earn citizenship, a whole program to bring people out of the shadows, 
and yet say you are ineligible for perhaps the most important tax 
incentive for the poorest of Americans, called the earned income tax 
credit? I call that mistreatment,

[[Page S5160]]

Mr. President. I would call that mistreatment.
  We are going to make you pay a fine, we are going to do a background 
check, we are going to make you work for 6 years before you can get a 
green card and, yet, while you are doing that--and most of you are low-
income people--we are going to deprive you of the benefit that was 
absolutely designed to help low-income families. That is what it was 
all about. If you have a lot of children, I am sorry, but this benefit 
that was specifically designed for low-income people, which is the 
majority of the people we are talking about, just as all of our 
forefathers who came here were usually at the lowest wrung of the 
ladder, and we are going to say you cannot have that benefit.
  Why? Why is that? Then what we are really saying is that we are going 
to give you legal status, but not really, because under a Republican 
administration, a way to try to help low-income families was designed, 
instead of a handout to give them a credit, instead of welfare to give 
them some extra income, but we are not going to give that to you. We 
may cause your children to go hungry because you are low-income people. 
I don't get it.
  It is mistreatment by any objective view. It is mistreatment. As the 
Senator from Alabama said, this is an important issue. Maybe for the 
first time since we have debated this on the floor I agree with him. I 
totally agree that this is an important issue. It has a lot to do with 
what kind of country we are.
  I reserve the remainder of my time.
  Mr. KENNEDY. Mr. President, I yield myself 3 minutes.
  Mr. President, the CBO and Joint Tax Committee estimates show that 
the increase in refundable credits resulting from S. 2611 would be more 
than offset by the income and payroll taxes new filers would pay. The 
net effect of the increased costs and revenues would be a gain of more 
than $30 billion between 2007 and 2016. So their estimate is that the 
new legal residents would pay over $62 billion in income and payroll 
taxes, while the costs of refundable tax credit, the EITC, and the 
child tax credit would only be $29 billion.
  Thus, the Federal Treasury would clearly benefit from these immigrant 
workers becoming legal residents by about $30 billion. So only legal 
residents are eligible for the EITC. Undocumented workers are not 
eligible for the EITC today and will not be under the terms of this 
legislation. However, when they become legal residents, under the 
process created by S. 2611, they will be eligible for the EITC going 
forward under the same terms of all other legal workers.
  The Sessions amendment would deny these legal immigrant families with 
children the same rights to this tax credit as other low-income 
families with children, and it is wrong and unfair. I hope it will be 
defeated.
  I withhold the balance of my time.
  The PRESIDING OFFICER. Who yields time? The Senator from Texas is 
recognized.
  Mrs. HUTCHISON. Mr. President, I had originally thought I was going 
to have 5 minutes to speak. As I understand it, we are kind of running 
behind. I wondered if there is a 5-minute window that I could have 
perhaps after Senator Ensign speaks or at some point in this debate. 
Would 5 minutes be OK now?
  Mr. KENNEDY. Mr. President, I think we are just about to vote on the 
Sessions amendment and the Ensign amendment. That concludes the 
amendments. Then we are going to have final passage. I think Senator 
Byrd wanted to speak and others wanted to speak, too. I think the 
leaders said they hoped we would be able to move forward on these 
amendments. So that is what we have been doing.

  Mrs. HUTCHISON. Would there be any time between now and the vote?
  Mr. McCAIN. Perhaps the Senator from Alabama would grant the Senator 
some time.
  The PRESIDING OFFICER. The Senator from Alabama has 1 minute 27 
seconds. The Senator from Massachusetts has 3 minutes.
  Mr. SESSIONS. I think I need that time.
  Mrs. HUTCHISON. I will not ask for that time. Thank you, Mr. 
President.
  The PRESIDING OFFICER. Who yields time?
  Mr. SESSIONS. Mr. President, I will wrap up. Although it is my 
amendment, I suppose I will give my colleagues the chance to have a 
final word. This bill would not prohibit those who come here legally in 
the future from being entitled to the earned income tax credit even 
before they become a citizen. It would say, with regard to those who 
came here illegally and have no entitlement whatsoever to this outlay 
payment from the U.S. Treasury, that they should not be able to get it 
until they become a naturalized citizen. That is not a punishment to 
them. We are rewarding them with legality in our country. We are 
rewarding them with the health care benefits of our country and 
educational benefits of our country, and it is not required that we 
spend, I believe, what is a fair estimate of $40 billion over the next 
10 years to fund this program. That money alone would be enough to fund 
almost the entire immigration enforcement system we need to put into 
place. Maybe it would fund all of the one-time costs and much of the 
continuing costs of that program.
  Why would we want to get into this argument that suggests that 
somehow we are discriminating against people because we don't give them 
a benefit to which they are clearly not entitled? We are giving them a 
number of benefits. We simply do not have to give this benefit. It has 
huge implications for our Treasury. Any way you spin it, our deficit 
would be $40 billion higher than if we don't adopt my amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from Massachusetts has 3 minutes remaining.
  Mr. KENNEDY. Mr. President, I am prepared to yield that time back.
  Mr. SPECTER. We yield back our time as well, so now we can go to the 
amendment by the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. I yield myself 5 minutes.
  The PRESIDING OFFICER. Would the Senator call up the amendment?


                           Amendment No. 4136

  Mr. ENSIGN. Mr. President, I call up amendment 4136.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada (Mr. Ensign) proposes an amendment 
     numbered 4136.

  Mr. ENSIGN. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (To ensure the integrity of the Earned Income Tax Credit program by 
reducing the potential for fraud and to ensure that aliens who receive 
 an adjustment of this status under this bill meet their obligation to 
    pay back taxes without creating a burden on the American public)

       On page 351, line 13, strike ``The alien'' through ``which 
     taxes are owed.'' on page 351, line 22, and insert the 
     following:
       ``(i) In general.--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.
       (ii) Limitation.--Provided further, That an alien required 
     to pay taxes under this subparagraph, or who otherwise 
     satisfies the requirements of clause (i), shall not be 
     allowed to collect any tax refund for any taxable year prior 
     to 2006, or to file any claim for the Earned Income Tax 
     Credit, or any other tax credit otherwise allowable under the 
     tax code, prior to such taxable year.''

  Mr. ENSIGN. Mr. President, I will speak very briefly on this 
amendment. It is different than Senator Sessions' amendment. It does 
deal with some of the very same programs, including the earned income 
tax credit. Senator Sessions' amendment addresses the tax credit 
prospectively. In other words, when somebody is given legal status 
under this bill they would be prohibited for the first 5 years from 
benefitting from the earned income tax credit.
  My amendment is different. It looks back. When people have worked 
here illegally, many used a stolen or a false Social Security number. 
That is a felony. Our amendment says that under those circumstances, 
someone would

[[Page S5161]]

not be able to qualify for the earned income tax credit. So my 
amendment is looking retrospectively instead of prospectively. My 
amendment would also disallow other tax credits that are meant for low-
income American citizens and legal residents.
  Mr. President, I believe that I need to explain why this is issue is 
important. During this debate, the American people have heard, again 
and again, that people are going to earn citizenship. The supporters of 
this bill reminded us of that every day. One of the things that they 
have consistently talked about is the requirement to pay a $2,000 fine 
and they are also going to pay back taxes.
  During the debate on my Social Security amendment, several people 
stated that immigrants have paid into the system. Most people who are 
here illegally--and I think the statistics bear this out--are low-
income folks. Under our taxation system, most low-income people will 
qualify for the earned income tax credit. Which is a way to supplement 
a person's income, like welfare, but through the tax code. With the 
earned income tax credit, a family that makes up to $36,000 a year can 
qualify for EITC. In 2005, they could be paid about $4,400 and in 2006 
a refundable tax credit of $4,500. So if we are making these folks pay 
a ``penalty''--in other words, they have to pay back taxes--these folks 
will qualify for this tax credit. In fact, many will get a refund 
instead of paying their back taxes. So what will happen is that the 
U.S. taxpayers will actually write them a check.
  This amendment will stop that from happening. It will stop people 
from receiving a retroactive tax refund while they were here working 
illegally. Senator Sessions does it prospectively. Mine does it 
retrospectively. I think it is only right, especially for those folks 
who are here and have stolen an American identity and ruined someone's 
credit history.
  Last week, I spoke about Audra, a woman whose identity was stolen. 
She had 218 illegal immigrants fraudulently using her identity. The IRS 
sent her a bill for a million dollars in back taxes. She cannot get a 
job. Her financial future is ruined. But what happens to the 
perpetrators of these crimes? Under this bill, those same 218 illegal 
immigrants will not only qualify for Social Security, because our 
amendment failed by 1 vote, but they could collect tax benefits too. If 
this amendment is not adopted, they will be able to qualify for the 
earned income tax credit, up to $4,500 per year, for years when they 
were, at the same time, ruining somebody else's credit and identity.
  So, Mr. President, I think this is an amendment that should be 
adopted. It is a commonsense amendment. Even if one cannot support 
Senator Sessions's amendment, I think we should all at least be able to 
support this amendment.

  Mr. President, does the other side want to go first?
  The PRESIDING OFFICER. Who yields time?
  Mr. ENSIGN. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. There is 15 minutes remaining.
  Mr. KENNEDY. I yield myself 5 minutes.
  Mr. President, the Ensign amendment does more than prohibit the 
immigrants from claiming the EITC when they file tax returns for the 
years in which they were undocumented. The amendment would prohibit 
immigrant workers from receiving refunds of their own money when more 
of their wages were withheld than they owe in taxes--do my colleagues 
understand? But under the Ensign amendment, when more is withheld than 
they owe, they cannot recover the money.
  What could be more unfair? The IRS is holding their money. It was 
withheld from their wages and sent to the Government by their employer. 
So these immigrant workers have now filed tax returns, like millions of 
American workers each year. They have overpaid, and are entitled to 
refunds. The Ensign amendment would prohibit them from receiving these 
refunds. They cannot get their money back under the Ensign amendment. 
The Government arbitrarily decides to keep it.
  Beyond that--listen to this, Mr. President--on page 2 ``or any other 
tax credit otherwise allowable under the Tax Code.'' What could that 
be? The child tax credit. This amendment also prohibits immigrant 
workers from receiving the child tax credit. The Tax Code permits 
families to take a $1,000 tax credit for each minor child. This is one 
of the most important provisions in the entire Internal Revenue Code 
for working families. It recognizes how expensive it is to raise 
children today, and it reduces a family's tax liability by $1,000 for 
each child. It allows these families to pay less income tax so that the 
money can be used to help them meet the child's basic needs. But the 
Ensign amendment says to immigrant families struggling on meager wages, 
trying to provide a better life for their children: You can't use the 
child tax credit to reduce your tax liability, even though every other 
family can. It does not matter that in many cases your children were 
born in the United States and are American citizens. Your children 
still cannot receive the benefit of the child tax credit because you 
were an undocumented worker.
  As a result, an immigrant family with two youth children, maybe 
American citizens, will have to pay $2,000 more in taxes each year than 
any other family in America who has the same income, same number of 
dependent children.
  That is an incredibly harsh penalty to impose on these families. The 
Ensign amendment would impose a special punitive Tax Code on immigrants 
who were once undocumented, making them pay higher taxes than anyone 
else with comparable incomes, denying them the basic right to a refund 
of their own money when the employer withholds more than they owe.
  I urge my colleagues to look closely at this unjust amendment and 
reject it.
  I reserve the remainder of my time.
  Mr. ENSIGN. Mr. President, I yield the Senator from South Carolina 4 
minutes.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. DeMINT. Mr. President, I rise in support of Senator Ensign's 
amendment. I very much appreciate him offering it on behalf of the 
American people. I also appreciate the efforts of all my colleagues who 
I know have worked in good faith to try to create a better immigration 
system that works for Americans and our heritage of welcoming 
immigrants.
  As we have gone through this process, I think it has been a good, 
civil, and constructive debate, but some of us are just coming down on 
different sides.
  My hope was as we went through this debate that we would recognize 
the urgent sense that Americans have what we need to secure our borders 
and that we need to stop illegal immigration before we expand legal 
immigration or increase benefits to those who are here illegally.
  I had hoped that when Senator Isakson offered his amendment that 
included comprehensive reform but created a commonsense sequence, that 
we in America would see that we need to control our borders before we 
add additional legal immigrants. But when that amendment failed, I 
think it discouraged a lot of us, that perhaps everyone wasn't working 
in a way that would be constructive for America's future.
  We also saw when Senator Ensign offered an amendment that had some 
commonsense ideas if someone had come here illegally and stolen 
someone's Social Security number, certainly they should not be rewarded 
by receiving Social Security benefits for the time they were using a 
stolen Social Security number. I think most of us thought that 
commonsense amendment would have been adopted overwhelmingly. 
Unfortunately, it failed, which discouraged many of us who wanted to 
work as part of a team toward comprehensive reform.
  Now we see with this amendment a recognition that we don't need to 
continue to add reward on top of reward for those who have been working 
here illegally. While we need to struggle to find a system that works 
for America, we should not use taxpayer dollars, American taxpayer 
dollars to give tax credits to folks who have been working here 
illegally. This does not make sense.
  Again, I encourage my colleagues to consider this because it is not 
only unjust to Americans, I think it is unfair

[[Page S5162]]

to immigrants. This bill is ultimately going to create such a level of 
resentment for our immigrants. Once Americans see that this bill 
creates rewards for those who have come here illegally, not just Social 
Security benefits but tax credits, citizenships, wages that in many 
cases are better than Americans', guaranteed wages, Americans are going 
to see this as unfair and resent the immigrants, and I think it will 
hurt our heritage of immigration in this country.
  I appreciate Senator Ensign offering this amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I believe the immigrants who are here 5 
years or more ought to be treated like everybody else. It raises very 
similar considerations to the arguments which I raised on the amendment 
by Senator Sessions.
  Where they have overpaid in taxes, like any other taxpayer, they 
ought to be able to get it back. Where they have children who are 
entitled to the child tax credit, children born in the United States 
would be excluded under the Ensign amendment. They ought to be treated 
like anyone else.
  When Senator DeMint talks about resentment and fairness, I believe 
there would be a lot of resentment and a lot of questioning of the 
fairness of treating the immigrants who have been here for more than 5 
years in a discriminatory fashion, not giving them back money they 
overpaid in taxes, or not according their children the child tax 
credit.
  I yield the Senator from Texas 5 minutes on my time.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, we have been debating for the last 2 
weeks a bill that is going to change the course of our country. The 
debate has been good. We have had the ability to offer amendments. Yet, 
the bill has not changed to the degree it needs to change, to do the 
job that we must do to assure that we secure our borders. This bill has 
not yet changed to ensure that we have a temporary worker program that 
works, that does not discriminate against American workers, and that is 
fair. If this bill had gone through that process, we could then start 
dealing with the people who are here in a fair and responsible way.
  Mr. President, we have benefitted from the immigrants in our country 
for hundreds of years--people who come here legally and work hard. They 
make better lives for themselves and their families, and they 
contribute to our country in the process. They have assimilated into 
America the ``E Pluribus Unum'' motto: Out of many, one. That has been 
the factor that has brought us together for all of these years.
  In the last 10 years, we have watched as millions have ignored our 
laws. They have come into our country illegally, leaving those who have 
waited their turn, who have waited for the legal process to work, to 
wonder if, in fact, they would ever be rewarded for their correct 
behavior.
  After 9/11, we all knew that our security was at risk. We have been 
forced to reexamine the laws of our country as they relate to our 
borders. Yet nearly 5 years after our country was attacked by people 
who came in through a porous border, we still have a porous border. We 
need immigration reform, and we must do it right.
  There are some good points in this bill. Securing our borders is a 
part of this bill. I voted against the Budget Act point of order 
yesterday because I want to spend the money on border security, and it 
is going to cost money. But that is not the only part of this bill. The 
rest of the bill has caused an imbalance that cannot stand if we are to 
look at the big picture for our country.
  Edwin Meese, the former Attorney General of the United States, warned 
in a New York Times editorial op-ed that we are in danger of repeating 
the mistakes of 20 years ago when Congress passed the Immigration 
Reform and Control Act of 1986, granting amnesty to those who were in 
this country. We are in danger of making the same mistake today.
  Temporary workers are very important for our country. They provide 
U.S. companies with labor that keeps our economy thriving, and the 
workers have the opportunity to make better lives for themselves. We 
also need to make sure that we have some path for people who want to 
work in this country, but do not want to be citizens. It is important 
that we balance the rights of American workers' as we take this major 
step.
  The Hagel-Martinez guest worker program does grant amnesty, and it 
forces guest workers into a citizenship track after 6 years, even if 
that is not what the worker wants or what they intended. In the polls 
that I have seen, most of the people coming to this country to work do 
not want to give up allegiance to their home countries, and they still 
love America. They don't have hostility toward America because they are 
not citizens. The arguments that I have heard indicating that we want 
every temporary worker to be a citizen so that they will be loyal to 
our country, I believe does not hold water. You can be friendly to our 
country, appreciate and respect our country but not have to go into the 
citizenship track to do that. People have been doing it for a long 
time.
  We do not have the capability in this bill that I tried to put in it 
yesterday with my amendment that would allow another choice--a choice 
for people who do want to work in our country, go home, and who do not 
want the citizenship track.
  Mr. President, I will not be able to vote for the bill before us 
today, but I do hope I can vote for a bill that comes out of conference 
committee, one that will be balanced and one that represents the 
interests of the American people, as well as treating fairly the 
foreign workers who come to our country.
  I thank the Senator from Pennsylvania.
  The PRESIDING OFFICER. Who yields time? The Senator from Nevada.
  Mr. ENSIGN. I yield myself 3 minutes.
  Mr. President, the 1996 historic welfare reform bill signed into law 
by President Clinton clearly stated illegal immigrants, people who were 
unlawfully in this country, would not be able to receive the benefits 
of the earned-income tax credit and would not be able to benefit from 
any of the other tax credits the law provides. That is right and that 
is fair. We should reserve those benefits for citizens and permanent 
residents.
  This bill undoes that. The bill says: We know what the law says, but 
now we forgive you and, therefore, go ahead and claim those credits 
retroactively. Without my amendment, that is exactly what will happen 
in this bill.
  The idea of stealing somebody's identity, stealing their Social 
Security number, ruining their credit, ruining everything that many 
folks have worked so hard to achieve, and then rewarding the person who 
stole the identity seems to me to be unfair, it seems wrong. If you 
have fraudulently used someone's social security number that--by the 
way--is a felony. We are forgiving that felony under this bill. So we 
are giving amnesty for that felony. It would seem to me that amnesty 
should be enough. We shouldn't, at the same time, allow the person who 
committed a felony to collect Social Security benefits and to claim the 
earned-income tax credit.

  I want to put up a chart here because people have been talking about 
the earned-income tax credit. Senator Coburn earlier this year had a 
hearing on the earned-income tax credit. This program--and this is 
pretty consistent with what I have seen over the years--has somewhere 
between a 23 percent and 28 percent error or fraud rate. That is the 
error rate that currently exists each year without regard to persons 
affected by this bill. That fraud--according to best estimates--costs 
us over $10 billion a year. Just in errors and fraud. Now we want 
people who are here illegally to be able to go back and claim a tax 
credit adding more burden to the U.S. taxpayer, adding more to the 
deficit.
  It was said by some that our amendment doesn't allow people to get 
refunds. That is absolutely true. If they paid into the system, and 
they overpaid, you are correct, we do not allow tax refunds. One of the 
reasons for this provision is because it is impossible to determine 
whether people using multiple social security numbers, as is the case 
with so many illegal immigrants, have overpaid. In that regard, there

[[Page S5163]]

would be no way to match a W-2 with the person who earned the wages on 
that document. This bill places a huge burden on the IRS, forcing the 
service to prove if someone has used 13 different Social Security 
numbers. Sorting out who actually messed up the system. Having to prove 
what someone owes and if they have overpaid, if they have overclaimed 
or overdeducted, it is a huge burden. By the way, we are not solely 
placing the burden on the IRS; we are also placing a huge burden on the 
American taxpayer. How? The American taxpayers have to fund the IRS. So 
it will be very difficult to prove whether someone has overpaid or not, 
and whether they are due a refund. We take care of all of that. We say, 
No, you don't get a refund and you cannot claim the tax credits that I 
believe are due for American citizens, and they certainly weren't due 
for people who are here illegally.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. How much time do I have remaining?
  The PRESIDING OFFICER. Five minutes and 36 seconds.
  Mr. KENNEDY. Mr. President, I yield to the Senator from South 
Carolina.
  Mr. GRAHAM. Mr. President, I thank the Senator for yielding. I don't 
know how to say it other than just to say it. We are beginning to take 
tax policy focusing on one group of people and tying it to criminal 
behavior disproportionate to the crime, and we are beginning to set the 
stage for a different kind of America. Not only is it ill-conceived, it 
is dangerous. You can rape someone, you can murder someone, you can be 
a convicted child molester, and our tax laws allow you to get a refund.
  What kind of crime are we talking about here? Coming across the 
border illegally, breaking in line to try to get ahead, because here 
you can do really well and on the other side of the border you do 
really poorly. I am sorry people did that. They need to pay for their 
crime of coming across the border, which is a misdemeanor with no 
specific fine set, with a 6-month cap on punishment.
  But what are we going to do to those people who come here and we have 
allowed them to sit here--not sit here, work here, for our benefit, 
doing things we don't want to do for years--we are going to say to the 
children who are American citizens, You are an American citizen as much 
as I am, but when it comes to your parents who came across that border 
for you and your future, we are not going to just punish them, we are 
going to take the whole Tax Code and turn it upside down and do to your 
parents what we don't do to a drug dealer or a rapist or a murderer.
  To my good friend from Nevada: Enough is enough. You have gone way 
too far. We need to get a grip on who we are as people. Punishment, 
yes. Revenge, no.
  You want to talk about fairness? I have been a prosecutor, I have 
been a defense attorney, and I know you have to pay your debt, but this 
is a place where you can start over--at least it used to be. It is a 
place where you have a chance to right your wrongs. Under this bill, 
you do pay a fine; you do go through a very long process to earn your 
way back into our good graces. It is a misdemeanor. You pay a fine. You 
have to learn English. If you are out of work for over 45 days, off you 
go. If you commit a felony or misdemeanor unrelated to immigration, off 
you go. We need the workers. We don't need bad people. We need good 
people.
  Every now and then, good people do bad things. At least I have found 
it to be so. Count me in that category. I hope you will forgive me if I 
do a bad thing, because I have done plenty of bad things. It is because 
people have seen the good in me, allowed me to start over and do right. 
That is why I am in the Senate today, because people saw in me some 
things I didn't deserve to have seen. So yes, let's give them 
punishment, make them do right, make them learn our language, make them 
pay taxes and pay a fine, make sure they don't commit crimes. But once 
you pay taxes, let's don't turn the Tax Code upside down just to kick 
you around after you have done what we have asked you to do.
  Please vote no. I yield back.


                          Earned Income Credit

  Mr. GRASSLEY. Mr. President, Senator Ensign has proposed amendment 
No. 4136 to this immigration bill.
  Mr. ENSIGN. My amendment is designed to accomplish two purposes: one, 
deny the earned income credit, EIC, to undocumented workers; and two, 
to ensure that applicants under section 601 are not manipulating their 
tax attributes to generate refunds that would not otherwise be due.
  Mr. GRASSLEY. I agree with the objectives of Senator Ensign's 
amendment. I note that the Finance Committee report welfare reform 
bill, known as the PRIDE Act, contains a technical correction to ensure 
that Senator Ensign's and my objective with respect to the EIC is met.
  Secondly, I will work with Senator Ensign and other interested 
members of the conference to achieve our second objective. We recognize 
this amendment is our first attempt to make sure the applicants are 
fully compliant with our Nation's tax law. As such, the underlying 
bill's provisions and Senator Ensign's amendment will need to be 
further examined in conference.
  Mr. ENSIGN. I thank the chairman and look forward to working with him 
in conference.
  The PRESIDING OFFICER. Who yields time?
  Mr. ENSIGN. Mr. President, I yield myself the remaining time.
  The Senator from South Carolina just talked about how coming across 
the border illegally is a misdemeanor. What he didn't address was that 
stealing somebody's Social Security number is a felony. In this bill, 
we forgive that felony. We forgive it.
  What we are saying is, if somebody who has operated under false 
pretenses--the 1996 welfare reform bill signed by President Clinton 
said that they would not qualify for earned-income tax credits or any 
other tax credits that we have for the low-income folks in this 
country--this bill will reward them and reverse the welfare act. They 
will be able to go back and say, Well, here is where I worked, and 
present some W-2 forms, maybe falsified, but they can go back and try 
to claim that, and then qualify for the earned-income tax credit. I 
fundamentally think that is wrong. We are already forgiving a felony; I 
think that is enough.
  All of the things that the Senator from South Carolina said about 
people coming here and working--and I am a big supporter of 
immigration--I think it is the strength of our country: The diversity 
that it brings, the hard-working people who make us appreciate America. 
I am as pro-immigration as anybody in this Chamber. What I want, 
though, is folks who, when they are coming here, are coming here for 
the right reasons. They are coming here to work hard. They are coming 
here to do the things that make America great. I think that is 
wonderful. They are saying in this bill that people will pay 
restitution, to earn legal status by paying back taxes. I don't know 
how many times I have heard those words from the people who are 
supporting this bill. In fact, under this bill, when immigrants go back 
to pay back taxes, to pay restitution, many actually get money from the 
federal government solely because of the earned-income tax credit.
  America is a compassionate country. We want to embrace people who are 
coming--we always have--from around the world. But I don't think it is 
right to ask the American people, OK, forgive them for the felony of 
stealing Social Security numbers, we are going to give you amnesty as 
far as citizenship and things like that, and on top of that, we are 
going to write you a check. We are going to write you a check courtesy 
of the American taxpayers. Yes, some may pay a fine and back taxes, but 
the EITC and other tax credits will actually operate so that the 
American people are going to write the illegal immigrant a check. 
Without my amendment, that is exactly what can happen to financially 
reward millions of the folks who are going to be legalized under this 
bill.
  Mr. President, is there any time remaining?
  The PRESIDING OFFICER. Forty-two seconds.
  Mr. ENSIGN. I yield back my time.
  Ms. MIKULSKI. Mr. President, there has been a lot of talk over the 
last 2 weeks about immigration and the need for immigration reform. I 
agree our immigration system is broken. We

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need to secure our borders, protect American jobs and make sure those 
immigrants in this country are treated with dignity. I rise today to 
talk about two provisions that I fought hard to include in the 
immigration bill.
  First, the H-2B visa program, which rewards those immigrants who play 
by the rules while protecting American jobs. And second, the Kendell 
Frederick Citizenship Act. This act rights a wrong and corrects a 
terrible injustice. It makes sure those who are not U.S. citizens but 
who are fighting to protect this country and have a green card can be a 
U.S. citizen quickly and easily.
  My H-2B visa provision protects our borders by rewarding immigrants 
and employers who play by the rules. We are talking about workers who 
come here on a seasonal basis but return to their families when they 
are finished with their job. Workers who honor their legal commitment 
to come here, work legally at a job and return home when finished with 
their work.
  This provision protects American workers by requiring employers to 
recruit American workers before hiring immigrant workers. It makes sure 
small business can continue to operate and pay their U.S. workers 12 
months out of the year. It keeps small and seasonal businesses open for 
business and guarantees the labor supply small businesses need during 
their peak seasons when they can't find American workers to take the 
jobs.
  This provision does not raise the cap. It allows employers who hire 
good guy workers, workers who have played by the rules and returned 
home after the work was done. These workers can be hired for another 3 
years and not count against the annual cap of 66,000 H-2B visas. It 
provides a helping hand to businesses by letting them apply for workers 
they have already trained to come back again, year after year and 
return home after the work is done. And it only applies to those who 
have already successfully participated in the H-2B visa program--
immigrants who have received a visa and have returned home to their 
families after their employment with a U.S. company.
  Small businesses across this country count on the H-2B visa program 
to keep their businesses afloat when they cannot find local American 
workers to fill their seasonal needs. They can then turn to the H-2B 
visa program. Without being able to get the seasonal workers they need, 
these businesses would not survive. These businesses try to hire 
American workers. They would love to hire American workers. Under the 
law, they are required to hire American workers. These businesses have 
to prove that they have vigorously tried to recruit American workers. 
They have to advertise for American workers and give American workers a 
chance to apply. They have to prove to the Department of Labor that 
there are no American workers available. Only then are they allowed to 
fill their vacancies with seasonal workers.
  The workers these businesses bring in participate in the H-2B visa 
program year after year, often working for the same companies. This has 
been the experience of the Maryland seafood industry. Yet they cannot 
and do not stay in the United States. They play by the rules, and 
return to their home countries, to their families. After the worker 
goes home, the U.S. employer must go through the whole visa process 
again the next year to get them back. That means an employer must prove 
again to the Department of Labor that they cannot get U.S. workers. The 
program also requires that the employers pay these workers the 
prevailing industry wage.
  This is not just a Maryland issue. This is not even a coastal issue. 
It is an issue that affects everyone. Every State uses H-2B workers, 
from ski resorts out West and in the Northeast to quarries in Colorado, 
from landscapers who hire most of their workers in spring and summer to 
shrimpers in Texas and Louisiana. And of course the seafood industry on 
both coasts.
  Being able to hire seasonal workers is critical to the State of 
Maryland. We have a lot of summer seasonal businesses in Maryland, on 
the Eastern Shore, in Ocean City or working the Chesapeake Bay. Many of 
our businesses use the program year after year. First, they hire all 
the American workers they can find, but they need additional help to 
meet seasonal demands. Without this program they can't meet their needs 
and many will be forced to limit services, lay off permanent U.S. 
workers or, worse yet, close their doors. These are family businesses 
and small businesses in Maryland. Take for example J. M. Clayton. What 
they do is a way of life. Started over a century ago and run by the 
great grandsons of the founder, J.M. Clayton works the waters of the 
Chesapeake Bay, supplying crabs, crabmeat and other seafood, including 
Maryland's famous oysters, to restaurants, markets, and wholesalers all 
over the Nation. It is the oldest working crab processing plant in the 
world. By employing 65 H-2B workers, the company can retain over 30 
full time American workers.
  But it is not just seafood companies that have a long history on the 
Eastern Shore. It is also S.E.W. Friel Cannery, which began its 
business over 100 years ago. Friel's is the last corn cannery left from 
300 that used to operate on the shore. Ten years ago, when the cannery 
could not find local workers, it turned to the new H-2B visa program. 
Since then, many workers come each season and then go home year after 
year. They have helped this country maintain its American workforce and 
have paved the way for local workers to return to the cannery. Friel's 
now employs 75 full-time and 190 seasonal workers, along with 70 
farmers and additional suppliers.
  Last summer, I went over to the Eastern Shore after the victory of 
getting an extension to the H-2B visa program to meet with Latina women 
who come to Maryland every year under this program. I asked them ``What 
does this program mean to you?'' They told me that coming here year 
after year is hard work, but it means they can provide for their 
families. They come in April and stay until late September when the 
crab pots are packed up until the next season. During one summer here, 
they earn more than they could earn in their home countries in 5 years. 
They take this money back to their families and children who have been 
waiting for them and build a well in their native village or build a 
home or even pool their money to build a community center. Each year 
these women come back to Maryland because they know the shore and they 
know Clayton, they know Phillips; and they know they will have a place 
to live, a bus that will take them to church, access to translators and 
in some places they are even able to learn English. First, it is one 
sister and then another sister coming to the Eastern Shore for a few 
months a year to make money so they can take care of their families and 
communities back home.
  Some of you may ask, ``why do we need this extension since the bill 
has a temporary guest worker program?'' We need to make sure we do not 
forget the needs of small and seasonal businesses in this immigration 
debate. I welcome the guest worker program that is before the Senate. 
Once the program is up and running, it will help augment the H-2B 
program. But that is going to take time. We need to make sure that 
there is no interruption so that companies can meet their hiring needs. 
When American workers don't apply for the job, the lack of workers 
could mean a missed season. That doesn't just mean a loss of profit. It 
means a loss of a family business, because these businesses will be 
forced to close their doors.
  Again this year, we have already reached the cap on the H-2B visa 
program. The first half of the cap--33,000 visas--was reached less than 
3 months after employers could begin applying. These businesses relied 
on the exemption of returning workers to fill vacancies that were 
open after trying to recruit American workers. We know how important it 
is to protect our borders, protect American workers and make sure small 
and seasonal businesses continue to operate. I don't need to tell you 
how important our seasonal industries are to our State economies and 
our local communities. This provision in the immigration bill does all 
of this. Every Member of Senate who has heard from their constituents, 
whether they are seafood processors, landscapers, resorts, timber 
companies, fisheries, pool companies or carnivals knows the need for 
this H-2B program to continue.

  I also want to talk about another provision in the immigration bill 
meant to fix a broken bureaucracy and help noncitizens who are serving 
in our military become citizens of the United

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States. There are over 40,000 non-U.S. citizens serving in the U.S. 
military today. Many want to become U.S. citizens but are caught up in 
red tape and paperwork, bureaucratic run-a-rounds and backlogs. And 
that is wrong.
  Many of these young people are on the front lines in Iraq, 
Afghanistan and throughout the world fighting terrorists. They are 
focused on fighting the enemy, they shouldn't also have to fight the 
bureaucracy just to become a citizen of the country they are fighting 
for. This provision in the immigration bill makes sure that it is 
easier and quicker for non-U.S. citizens serving in our military to 
become citizens.
  This provision was inspired by a young man from Maryland who was in 
the Army serving our country. Though not a citizen, he had a green card 
and was killed in Iraq on October 19, 2005. He was 21 years old. 
Kendell Frederick was killed by a road side bomb on his way to be 
fingerprinted to become a U.S. citizen. But he was also killed by the 
botched bureaucracy of the U.S. government, by their incompetence, by 
their indifference, by their ineptitude. This is inexcusable.
  Every military death in Iraq is a tragedy, but this one did not need 
to happen. A Trinidad citizen, but fighting for America, Kendell 
Frederick was a terrific young man who came to this country when he was 
15 years old. He joined his mother here in the U.S. and wanted so much 
to be a part of this country. He wanted to serve this country and 
joined the ROTC while at Randallstown High School. After graduation, he 
joined the Army and went off to serve this country. In the Army, he was 
a generator mechanic assigned to a heavy combat battalion. His job was 
to keep all of the generators running, which kept his battalion 
running. Kendell wanted to become an American citizen, yet a series of 
bureaucratic screw ups and unnecessary hurdles prevented that.
  Kendell had been trying for over a year to become a U.S. citizen. He 
started working on it when he joined the Army. While he was training 
and learning how to become a soldier, Kendell sent his citizenship 
application in and checked the wrong box. Specialist Frederick was busy 
training for war, packing to go to Iraq, saying good bye to his mother, 
his brother, his two sisters--all the while worrying which box to check 
to become a U.S. citizen.
  After that, his application was derailed by Immigration three times. 
First, after his mother checked the correct box saying Kendell was in 
the military, the Citizenship and Immigration Service, CIS, sent the 
application to the wrong office, not the office that handles military 
applications. Second, CIS rejected the fingerprints he had submitted--
with no explanation. Kendell had his fingerprints taken when he joined 
the military. He had an FBI background check for the military. We have 
high standards to be in the U.S. military. But there was no 
explanation. His mother did not know why the fingerprints had been 
rejected. Third, and finally, Kendell was told to get his fingerprints 
retaken in Maryland. But he was in Iraq fighting a war. His mother 
called 1-800-Immigration--that's supposed to be the HELP line. She told 
them--my boy is in Baghdad, he can't come to Baltimore to get 
fingerprinted. She would have loved for son to come to Baltimore, but 
he was fighting in a war, fighting for America. And CIS told her there 
was nothing they could do. They were wrong. That was the wrong 
information. They were no help.
  Finally, an arrangement was made. Kendell's staff sergeant made 
arrangements for him to be fingerprinted at a nearby air base so he 
could complete his application. On October 19, SPC Kendell Frederick 
was traveling in a convoy to a base to get fingerprinted. He did not 
usually go on convoys, but that day he was in the convoy to get his 
fingerprints to become an American citizen and he was killed by a 
roadside bomb. Kendell was granted his U.S. citizenship a week after he 
died. He was buried in Arlington National Cemetery.
  Kendell was trying to do the right thing, yet he was given wrong 
information. He got the run-a-round. His staff sergeant tried to help, 
but he didn't know all the rules, it was not his job to know the 
rules--he was fighting a war. His mother did the right thing. She tried 
to cut through the bureaucracy, making phone calls, sending letters, 
she was diligent and relentless. The system failed--again and again. 
And a wonderful young man lost his life.
  Kendell's mother--Michelle Murphy--could have just sat there, could 
have boiled in her rage. She wanted to do something with her grief. 
When I spoke with her, she told me she didn't want any mother to have 
to go through what she went through, what her son went through. 
Servicemembers and their mothers should not be worrying about what box 
to check on a citizenship application, which of many addresses is the 
right address to mail it to, where to get fingerprints taken when the 
servicemember is fighting for America. Mothers have enough to worry 
about. Servicemembers have enough to worry about.
  It took me introducing a bill to get Immigration's attention about 
the problems servicemembers and their families face. The Department of 
Homeland Security is working with me and Kendell's mother to try and 
make sure this does not happen again. They are working to get rid of 
the red tape. This provision will make sure that no mother has to go 
through what Mrs. Murphy went through.
  The Kendell Frederick Citizenship Act that is part of the immigration 
bill makes it easier for military servicemembers to become citizens. 
The provisions of the legislation cut through the red tape. First, the 
act requires CIS to use the fingerprints the military takes when a 
person enlists in the military, so a servicemember doesn't have to keep 
getting new fingerprints. Second, it requires the creation of a 
military citizenship advocate to inform the servicemembers about the 
citizenship process and help with the application. Third, this 
legislation requires CIS to set up a customer service hotline dedicated 
to serving military members and their families. And fourth, it requires 
the Government Accountability Office to conduct an investigation into 
what is wrong with immigration services for our military.
  No one should ever again have to go through what Kendell and his 
mother went through. The Kendell Frederick bill will make sure that 
anyone in the military who wants to be a U.S. citizen will be able to 
do so, quickly and easily. If you are willing to fight and die for 
America, you should be able to become an American.
  Mr. BUNNING. Mr. President, I rise to speak about why I will vote 
against the immigration reform bill now before the Senate.
  This is the worst piece of legislation that I have seen in my 20 
years in Congress. It grants amnesty to 11 million or more illegal 
immigrants. It puts American workers at risk. It does little to enforce 
our immigration laws in the interior of the country, and worst of all, 
it does not even secure our border. It ignores the will of the majority 
of the American people. I cannot vote for such a dangerous bill.
  In 1986, the year before I first joined the House of Representatives, 
Congress passed the immigration reform bill that got us into the 
situation we are in now. Ed Meese, who was President Reagan's Attorney 
General at the time, called it what it was--an amnesty for 3 million 
illegal aliens. Unfortunately, after that amnesty little attention was 
paid to securing our borders and interior enforcement, and the illegal 
immigrant population grew to over 11 million.
  The 1986 amnesty was a signal to illegal immigrants that if they came 
here and kept their heads down, eventually they would have their crimes 
forgiven. The amnesty told them there was no reason to wait in line, no 
reason to follow our laws, just sneak into the United States, do not 
get caught, and eventually Congress would make them a citizen.
  Well, that is exactly what happened. Earlier this week, former 
Attorney General Meese pointed out that Congress did not learn the 
lesson of 1986 and we are poised to repeat that mistake by passing a 
new amnesty. I suspect that 20 years from now a future Congress will 
talk about yet another amnesty.
  A few weeks ago I came to the floor to talk about what kind of 
immigration reform I support. I support, first and foremost, securing 
our borders. If we cannot control our borders, we might as well give up 
on stopping the next terrorist attack.

[[Page S5166]]

  I support strong enforcement of our immigration laws inside the 
country. That means punishing employers who hire illegal immigrants. We 
must provide employers the tools they need to make sure workers are 
legal and hold them responsible when they turn a blind eye to who they 
are hiring.
  I support an immigration reform bill that protects American workers. 
That means a temporary worker program for when we need more workers, 
such as in our current rapidly expanding economy. But any worker 
program must make sure Americans are not being denied jobs in favor of 
cheap foreign labor. If there is a real need we should fill it, but 
foreign labor should never be a substitute for American workers.
  Finally, I support continuing our long tradition of welcoming new 
immigrants to America. Within reasonable limits, we should continue to 
welcome people from around the world who want to become Americans. We 
should not lock the doors to new immigrants, but anyone who wants to 
become an American must learn our language and assimilate into our 
society.
  Because this bill does not follow those principles, I will not 
support it. The bill will not secure our border. It ties the hands of 
law enforcement inside the country to catch illegal immigrants. It is 
an amnesty for illegal immigrants that not only puts them ahead of the 
millions who are already waiting in line, but in some ways it also 
treats them better than American workers. Finally, the bill does not 
protect American jobs, instead it encourages businesses to use cheap 
foreign labor.
  I have heard a lot of talk the last few weeks from my colleagues 
supporting this bill that say we must choose from either blanket 
amnesty or mass deportation. That is wrong. If we passed a real border 
security bill with tough interior enforcement, the illegal population 
would shrink through attrition; in other words, the illegal immigrants 
would deport themselves. After we secure our borders, we can put in 
place a temporary worker program that protects American workers.
  But that is not the path the Senate will choose today. I hope my 
colleagues in the House of Representatives will stay strong with their 
bill when we get to conference. The other body passed a strong bill 
that would make this country safer. That bill is not an amnesty bill. 
It will make sure we get our border under control before opening the 
door to millions of temporary workers.
  Again, Mr. President, I cannot support this bill. It is the worst 
legislation I have ever had to vote on, and I will vote against it when 
the roll is called. I put securing our borders ahead of amnesty, and I 
am confident the American people do too.
  Mr. SANTORUM. Mr. President, the Senate is scheduled to vote today on 
a comprehensive immigration reform bill. With thousands of illegal 
immigrants rushing across our borders every day, straining every sector 
of our society, congressional attention to this issue is appropriate 
and overdue. Unfortunately, S. 2611 is not the right way to reform our 
immigration system.
  As the son of an Italian immigrant who came to the United States in 
1930, I understand the important and valuable contributions immigrants 
have made and continue to make to our country. I have great respect for 
those who have legally come to our Nation seeking a better life for 
their families, just as my grandfather and father did.
  However, as the Senate comes to a vote on S. 2611, I firmly believe 
that the rule of law and our safety and security must be given by 
importance. Who is traveling across our borders and why they are doing 
so is as important as any issue we currently face. It is a complicated 
issue, with far-reaching implications that will impact our national 
security, our economy, and our culture.
  Securing our borders is and must be our first priority. It is a basic 
responsibility of a sovereign nation. An immigration policy that does 
not control who is entering our Nation is not an immigration policy at 
all. The best way we can do this is by strengthening and supporting our 
Border Patrol, both through greater numbers and technological 
advancements. To this end, I cosponsored and voted for a successful 
amendment that authorizes the Department of Homeland Security to 
construct 370 miles of triple-layer fence and 500 miles of vehicle 
barriers at strategic locations along our southern border.
  I also cosponsored the Ensign amendment which provides reimbursement 
for the temporary use of the National Guard to secure the southern 
border of the United States. With the approval of the Secretary of 
Defense, the Governor of any State may order the use of the National 
Guard for not more than 21 days in a year to provide ``command, control 
and continuity of support'' such as ground and airborne reconnaissance, 
logistical, tactical, and administrative support, communications 
services, and emergency medical services. I was pleased to see both of 
these amendments pass as they are solid first steps towards border 
security.
  But the reason I voted against cloture and why I simply cannot vote 
for this bill is that it gives amnesty to the immigrants who came to 
this country illegally. I believe those who have entered this country 
illegally must return to their native land and move through the legal 
process just like everyone else. The idea that those who have been here 
illegally for an arbitrary number of years--a number that is, frankly, 
undeterminable as their time here is by nature undocumented--should be 
able to stay in America simply by paying back taxes is an insult to all 
those who have waited, patiently and lawfully, for their chance to come 
here and pursue the American dream.
  There were many opportunities to fix this throughout Senate debate, 
but I am afraid many of my colleagues have not truly heard the call of 
their constituents to oppose amnesty. I was disappointed that 58 of my 
colleagues rejected a reasonable amendment offered by Senators Kyl and 
Cornyn to ensure that the temporary worker program was 
actually temporary and not a shortcut to legalization or citizenship. I 
also voted against the Feinstein amendment earlier this week which 
would have given all illegal immigrants in the United States a path to 
citizenship without having to leave the country.

  I cannot support an amnesty proposal now because amnesty has failed 
in the past. In 1986, Congress attempted to address this same issue, 
though on a much smaller scale. Estimates of the size of the illegal-
immigrant population in the United States in 1986 placed the total 
number close to 1 million; today we are dealing with around 12 million. 
If providing amnesty to 1 million illegal immigrants yielded 12 million 
over the course of 20 years, with how many additional millions will we 
be burdened in 2026 by offering amnesty now?
  But this is not the only way S. 2611 rewards illegal immigrants. I 
cosponsored an amendment offered by Senator John Ensign that would 
ensure illegal immigrants have a valid Social Security number before 
they can accumulate credit to qualify for Social Security. This 
amendment was intended to reduce document fraud, prevent identity 
theft, and preserve the integrity of the Social Security system by 
ensuring that persons who receive an adjustment of status under this 
bill are not able to receive Social Security benefits as a result of 
unlawful activity. In other words, this prevents illegal immigrants 
from getting Social Security benefits based on their illegal work 
history, often with an invalid number. Unfortunately, a majority of my 
colleagues voted to kill this amendment. By doing so, the Senate has 
rewarded illegal immigrants by putting our current elderly 
beneficiaries, who paid into the Social Security system for decades in 
order to collect the benefits they receive today, further at risk in an 
already stretched system.
  I would like to speak briefly on an amendment offered by Senator 
Sessions that would prohibit aliens unlawfully present in the United 
States with a green card from the H-2C visa program from claiming the 
earned income tax credit, EITC, when filing annual tax returns. This 
amendment has good intentions, but I reluctantly must oppose it. The 
cost of EITC for the illegal-turned-legal population is steep. However, 
this amendment goes further than I am comfortable with by treating 
these resident aliens different from others. In my mind, a better 
option is another amendment offered by Senator Ensign that would limit 
illegal aliens from any kind of tax refund or an EITC claim on back 
taxes for the time that they were here illegally. I believe this 
amendment strikes the right balance.

[[Page S5167]]

  America is a nation of immigrants, a nation that derives much of our 
strength from those who come here to live the american dream. But the 
immigrants who have contributed so much to the character of our Nation 
came here legally. We devalue their sacrifices and hardships if we fail 
to ask the same of today's immigrants. This bill does not do that. It 
rewards illegal behavior, threatens our social welfare system, devalues 
the legal immigration process, and provides amnesty to illegal 
immigrants. I will vote against S. 2611, and I urge my colleagues to do 
the same.
  Mr. DOMENICI. Mr. President, I rise today to express my dismay that 
my amendment No. 4022 to S. 2611 is not part of the bill the Senate 
will vote on.
  At first glance, the immigration bill we are considering takes into 
account that if we put more border patrol agents and immigration 
personnel on the border, other Federal agencies that deal with 
immigration will need more resources. The bill adds new Department of 
Homeland Security and Department of Justice attorneys, public 
defenders, and immigration judges. But the bill fails to account for 
that fact that while immigration cases typically go before immigration 
judges, repeat offenders can be charged with felonies and tried in 
Federal district court.
  As part of this bill, we should have considered the increased federal 
criminal immigration caseload we will have as a result of increased 
border security and immigration enforcement, and we should have added 
new District judges to hear those cases.
  Specifically, my amendment would implement the recommendations of the 
2005 Judicial Conference for U.S. district courts that have immigration 
caseloads totaling more than 50 percent of their total criminal 
filings. There are four districts that have such caseloads; 
unsurprisingly, all of them are on the Southwest border. Those courts' 
immigration caseloads vastly outweigh the immigration caseloads of 
northern border district courts that the 2005 Judicial Conference 
recommended new judgeships for.
  For example, in the Southern District of Texas there were 5,599 
criminal filings in fiscal year 2004, and 3,688 of them were 
immigration cases. By comparison, the Western District of Washington 
had only 539 criminal filings, and only 78 of those were immigration 
cases. Similarly, in the District Court for Arizona there were 4,007 
criminal filings in fiscal year 2004; 2,404 of them were immigration 
cases. But in Idaho, there were only 213 criminal filings, and only 71 
of those were immigration cases. In fiscal year 2004, the Southern 
District of California had 3,400 criminal filings, and 2,206 of them 
were immigration cases. On the northern border, in the Western District 
of New York, there were only 497 criminal filings; only 35 of those 
were immigration cases. Lastly, in the District of New Mexico, there 
were 2,497 criminal filings in fiscal year 2004, and 1,502 of them were 
immigration cases. In the District of Minnesota, there were 431 
criminal filings, and only 15 of them were immigration cases.
  With so many figures, the significance of those numbers may be lost, 
so let me sum those numbers up. In fiscal year 2004, my home state of 
New Mexico, which shares a border with Mexico, had 100 times more 
Federal criminal immigration cases than a state that shares a border 
with Canada.
  The Albuquerque Tribune wrote an article about this issue in March. 
That article, ``Judges See Ripple Effect of Policy on Immigration,'' 
said:

       U.S. District Chief Judge Martha Vazquez of Santa Fe 
     oversees a court that faces a rising caseload from illegal 
     border crossings and related crime. And help from Washington 
     is by no means certain . . . Most typical immigration cases 
     go before an immigration judge, and the subjects are 
     deported. But people deported once and caught crossing 
     illegally again can be charged with a felony. And that brings 
     the defendant into federal district court. Those are the 
     cases driving up New Mexico's caseload . . . Some days as 
     many as 90 defendants crowd the courtroom in Las Cruces, said 
     Vazquez . . . The same problems are afflicting federal border 
     courts in Arizona, California, and Texas.

  Mr. President, I will ask that this April 17, 2006 article be printed 
in the Record.
  I would also like to read portions of a letter written to me earlier 
this month by the New Mexico District's Chief Judge, Martha Vazquez. 
About the Senate's immigration bill, Judge Vazquez wrote:

       As with past legislation aimed at improving border 
     security, this bill will significantly increase the number of 
     felony immigration and drug cases in the federal courts in 
     districts on the southwest border. The bill, in recognition 
     of this fact, provides funding for at least 20 additional 
     full-time Administrative Immigration Judges. The bill, 
     however, inexplicably fails to provide funding for additional 
     Article III judges despite the fact that Article III judges 
     will be as burdened, if not more, by the increased caseload 
     that will result from the bill's implementation . . . In 
     fiscal year 1997, there were 240 immigration felony filings 
     in the District of New Mexico. By fiscal year 2005, the 
     number of immigration filings increased to 1,826, which is an 
     increase of 661 percent . . . Increasing the number of 
     immigration judges will do nothing to reduce the increasing 
     caseload in the border states' federal courts.

  Judge Vazquez was appointed to the Federal bench by President 
Clinton. Clearly this is not a partisan issue, as Judge Vazquez and I 
agree that the Senate's failure to address the needs of our border 
district courts in inexplicable. I will ask that this May 16, 2006, 
letter from Chief Judge Vazquez be printed in the Record.
  Lastly, I would like to quote an article written this week. On May 
23, 2006, Reuters posted an article titled ``Bush Border Patrol Plan to 
Pressure Courts: Sources.'' That article said:

       President George W. Bush's plan to send thousands of 
     National Guard troops to the U.S.-Mexico border could spark a 
     surge in immigration cases and U.S. courts are ill prepared 
     to handle them, according to congressional and courts sources 
     . . . Even without the stepped-up security at the border, 
     federal courts in southern California, Arizona, New Mexico 
     and Texas have been overburdened. Carelli [a spokesman for 
     U.S. federal courts] said those five judicial districts, out 
     of 94 nationwide, account for 34 percent of all criminal 
     cases moving through U.S. courts . . . Most immigrants caught 
     crossing illegally are ordered out of the country without 
     prosecution. But that still leaves a growing pile of cases 
     involving illegals who are being prosecuted after being 
     caught multiple times or those accused of other crimes . . . 
     Nationwide, each U.S. judge handles an average of 87 cases a 
     year. But along the southern border, even before Bush's plan 
     moves forward, the average is around 300 per judge, Carelli 
     said.

  Clearly, there is already a crisis regarding our Southwest border 
district courts' immigration caseload. As we worked on S. 2611 to 
provide more resources to the Departments of Homeland Security and 
Justice, we should have also addressed the related needs of our U.S. 
district courts. Senators Kyl, Cornyn, and Hutchison understood that, 
and I thank them for their cosponsorship and strong support of my 
amendment.
  Unfortunately, our other colleagues were unwilling to recognize this 
problem or address this need. I was told that this amendment, with an 
annual cost of $11 million, was too expensive. But this bill authorizes 
billions of new spending for homeland security and judiciary resources. 
I was informed that every State needs new judges. But not every State 
has thousands of immigration cases filed each year.
  I am disheartened that the Senate did not act on amendment 4022. I am 
disappointed that my colleagues were unwilling to address the judicial 
crisis along the Southwest border. I am dismayed that this body is 
turning a blind eye towards the need of our U.S. district courts. As a 
result of such action, my State, and other States on the southwest 
border, will not be able to enforce the border security and immigration 
enforcement provisions in the Comprehensive Immigration Reform Act 
because we will not have the necessary resources to prosecute 
immigration cases.
  Mr. President, I ask unanimous consent that the aforementioned 
materials be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From Scripps Howard News Service, April 17, 2006]

           Judges See Ripple Effect of Policy on Immigration

                         (By James W. Brosnan)

       Washington.--A rising number of immigration cases has New 
     Mexico's top federal judge keeping an anxious eye on 
     Congress' attempts to deal with border issues.
       U.S. District Chief Judge Martha Vazquez of Santa Fe 
     oversees a court that faces a rising caseload from illegal 
     border crossings and related crime. And help from Washington 
     is by no means certain.
       Left in limbo when the Senate adjourned April 7 was a 
     pending amendment to the

[[Page S5168]]

     stalled immigration bill that would authorize one new 
     permanent federal judge for New Mexico and another temporary 
     judge.
       Sen. Pete Domenici, Albuquerque Republican, plans to renew 
     the effort for his amendment when and if the Senate takes up 
     the bill again.
       ``As it stands now, we won't see any needed comprehensive 
     border security improvements in our state,'' Domenici said in 
     a recent statement. ``Our law enforcement won't get any new 
     and sustained help. We won't be adding any new federal judges 
     in New Mexico to take on the immigration cases that are 
     overwhelming our courts.''
       New Mexico now has seven full-time district judges and 
     three judges on ``senior status'' who are supposed to hear 
     cases only occasionally.
       But Vazquez said those three judges, James Parker, C. LeRoy 
     Hansen and John Conway, all in their 60s, still travel to 
     courthouses in Albuquerque, Las Cruces, Roswell and Santa Fe 
     and take a full load of cases.
       ``We would be dying without them,'' said Vazquez.
       From Sept. 30, 1999, to Sept. 30, 2004 (the end of the 
     federal fiscal year), the caseload in the New Mexico federal 
     district court increased 57.5 percent, from 2,804 to 4,416.
       In the 2004 fiscal year alone, 2,126 felony cases were 
     heard, almost half of all cases in the entire 10th Circuit, 
     which includes Colorado, Kansas, Oklahoma, Utah and Wyoming. 
     Most typical immigration cases go before an immigration 
     judge, and the subjects are deported.
       But people deported once and caught crossing illegally 
     again can be charged with a felony. And that brings the 
     defendant into federal district court.
       Those are the cases driving up New Mexico's caseload, along 
     with smuggling and drug cases, said Vazquez.
       Some days as many as 90 defendants crowd the courtroom in 
     Las Cruces, said Vazquez. Pre-sentence reports have to be 
     prepared by district probation officers for every defendant.
       Federal taypayers also bear the cost of housing the 
     prisoners in jails and transporting them to the courthouse, 
     as well as the travel and pay of their lawyers.
       The same problems are afflicting federal border courts in 
     Arizona, California and Texas. Last summer, the federal 
     judges from those courts met and then appealed for help to 
     their senators.
       The result is the amendment Domenici is sponsoring with 
     other border-state senators that would add nine permanent and 
     two temporary federal judgeships in the Southwest border 
     states.
       Domenici also is sponsoring amendments to authorize $585 
     million to improve the infrastructure for security on the 
     border and to add 250 deputy United States marshals.
       But the burden on the federal court system could grow 
     dramatically if Congress decides to make it a crime to be in 
     the United States without proper documentation.
       People caught crossing the border illegally face a 
     misdemeanor and are deported only if it is a first offense.
       An illegal immigrant caught inside the United States has 
     committed a civil offense and is deported unless he or she 
     has committed another crime.
       (An estimated 40 percent of illegal immigrants are people 
     who overstayed the limit on a legal visa, not border 
     jumpers.)
       Last year, the House voted to make illegal presence in the 
     United States a felony, potentially creating 11 million to 12 
     million new. The bill pending in the Senate has no criminal 
     penalty.
       Last week, House Speaker Dennis Hastert, an Illinois 
     Republican, and Senate Majority Leader Bill Frist, a 
     Tennessee Republican, said they would ensure the final 
     legislation reduced the felony charge to a misdemeanor.
       Ever a misdemeanor charge can carry up to a six-month jail 
     sentence, which would require the appointment of a taxpayer-
     funded lawyer for the indigent, unless the prosecutor waived 
     any possibility of jail time, said Jeanne Butterfield, 
     executive director of the American Immigration Lawyers 
     Association.
       ``What's the point? Deport them.'' said Butterfield.
       Federal courts processed only 9,343 misdemeanors in fiscal 
     year 2004 compared with 53,441 felonies.
       Said Vazquez, ``Any time we criminalize behavior we have to 
     consider the consequences all the way down to additional jail 
     cells.''
       Making illegal presence a misdemeanor also would conflict 
     with a bipartisan compromise in the Senate that would allow 
     80 percent of illegal immigrants--those here more than two 
     years--to obtain a visa.
       A Frist aide, Elie Teichman, said any undocumented worker 
     who qualifies for a guest-worker program would be excluded 
     from the illegal presence provisions.
                                  ____

                                              U.S. District Court,


                                       District of New Mexico,

                                       Santa Fe, NM, May 16, 2006.
     Sen. Pete V. Domenici,
     Washington, DC.
       Dear Senator Domenici: I understand that this week the 
     Senate will be debating the Border Security and Immigration 
     Reform Bill. As with past legislation aimed at improving 
     border security, this bill will significantly increase the 
     number of felony immigration and drug cases in the federal 
     courts in districts on the southwest border. The bill, in 
     recognition of this fact, provides funding for at least 20 
     additional full-time Administrative Immigration Judges. The 
     bill, however, inexplicably fails to provide funding for 
     additional Article III Judges despite the fact that Article 
     III Judges will be as burdened, if not more, by the increased 
     caseload that will result from the bill's implementation. The 
     bill's failure to provide for critical resources is greatly 
     concerning to those involved in the administration of justice 
     in these districts.
       The Judicial Conference of the United States determines the 
     need for new judgeships and has established the standard of 
     430 weighted filings per judgeship. As of September 30, 2005 
     the weighted filing per judgeship in the District of New 
     Mexico is 586. That figure is 36 percent higher than the 
     established standard and justifies a minimum of two 
     additional Article III judgeships. The Judicial Conference 
     does not use projected filings when requesting additional 
     judgeships from Congress. Without question, the expected 
     increase in filings that will result from the pending 
     legislation will only further burden the Article III Judges 
     in this District.
       As it is, the burden on Article III Judges in this District 
     is considerable. This District ranks first among all 
     districts in criminal filings per judgeship: 405 criminal 
     filings compared to the national average of 87. As in all 
     federal districts along the southwest border, the majority of 
     cases filed in this District relate to immigration offenses 
     under United States Code, Title 8 and drug offenses arising 
     under Title 21. Immigration and drug cases account for 85 
     percent of the caseload in the District of New Mexico. And 
     the numbers of filings have increased exponentially in recent 
     years. In fiscal year 1997, there were 240 immigration felony 
     filings in the District of New Mexico. By fiscal year 2005, 
     the number of immigration felony filings increased to 1,826, 
     which is an increase of 661 percent. During this same period 
     drug cases have increased by 87 percent (298 to 558). Since 
     1997, the overall felony filings in the District of New 
     Mexico has increased by 287 percent. Of course, the court 
     cannot control the volume of cases that are filed. The United 
     States Attorney is responsible for bringing criminal cases to 
     federal court.
       Administrative Immigration Judges and Article III Judges 
     perform entirely different tasks in the process of 
     adjudicating immigration cases. Immigration Judges decide 
     civil immigration questions. Article III Judges, on the other 
     hand, are responsible for the trials and sentencings of those 
     who are accused or convicted of immigration and border 
     security offenses. Article III Judges oversee an extensive 
     background check on every felony defendant who appears before 
     them on immigration charges to insure that the defendant does 
     not pose a national security threat. This critically 
     important task requires time and great deal of resources. 
     Increasing the number of Immigration Judges will do nothing 
     to reduce the increasing caseload in the border states' 
     federal courts. The consequences of failing to add more 
     Article III Judges will create an even greater burden in this 
     District, cause a backlog and imperil the court's ability to 
     fulfill the ``Speedy Trial Act.''
       Further frustrating the District's ability to handle its 
     criminal docket is the fact that, even as the District 
     recently added to Magistrate Judges in Las Cruces, other 
     court related resources have remained static, or worse. have 
     declined. While law enforcement resources have increased, 
     there has been no corresponding increase in the number of 
     defense attorneys, Assistant United States Attorneys, Deputy 
     United States. Marshals, Probation and Pretrial officers, 
     interpreters, or courtroom space. Simply put, the District of 
     New Mexico desperately needs increased resources--across the 
     board--to enable it to keep pace with increasing border-
     related demands.
       I truly appreciate all you have done and continue to do for 
     the District of New Mexico. If you have any questions, please 
     do not hesitate to contact me or my staff at (505) 988-6330.
           Sincerely,
                                                   Martha Vazquez,
     Chief Judge.
                                  ____


                      [From Reuters, May 23, 2006]

          Bush Border Patrol Plan To Pressure Courts: Sources

                           (By Richard Cowan)

       President George W. Bush's plan to send thousands of 
     National Guard troops to the U.S.-Mexico border could spark a 
     surge in immigration cases and U.S. courts are ill prepared 
     to handle them, according to congressional and court sources.
       The administration failed to plan for the surge in court 
     cases and did not consult the judicial branch on the impact 
     more arrests would have on federal courts in the region, said 
     Dick Carelli, a spokesman for U.S. Federal courts.
       Bush asked for $1.9 billion in emergency funds for the 
     border plan, including $20 million to help the Justice 
     Department deal with its increased caseload, but that did not 
     include the courts.
       ``We were left out of the process,'' Carelli said. He added 
     that since Bush unveiled his proposal to increase border 
     patrols, federal judiciary officials have had to quickly 
     cobble together a proposal to Congress for $20.3 million in 
     emergency funds to hire three full-time judges and about 240 
     support staff for the Southwest.
       Even without the stepped-up security at the border, federal 
     courts in southern California, Arizona, New Mexico and Texas 
     have

[[Page S5169]]

     been over burdened. Carelli said those five judicial 
     districts, out of 94 nationwide, account for 34 percent of 
     all criminal cases moving through U.S. courts.
       ``It's irresponsible to think that you can take care of the 
     border security problem without also addressing the justice 
     enforcement problem, which federal courts are indispensable 
     in,'' said a congressional aide.
       Most immigrants caught crossing illegally are ordered out 
     of the country without prosecution. But that still leaves a 
     growing pile of cases involving illegals who are being 
     prosecuted after being caught multiple times or those accused 
     of other crimes.
       Public defenders, pretrial services and probation officers 
     are all provided by the federal courts. ``And obviously, 
     those hearings have to take place in federal courts. The 
     border courts and the judiciary are just being swamped,'' the 
     congressional aide said.
       A Bush administration official said that emergency funds 
     requested for the Justice Department will help hire 
     immigration attorneys and other support staff. ``By 
     increasing the Department of Justice's ability to hear and 
     process immigration-related cases, the belief is that the 
     impact on the judicial branch will be mitigated,'' the 
     official said.
       Just five months before congressional elections, public 
     opinion polls show immigration concerns are at the top of 
     voters' list of worries.
       The U.S. Senate is trying to pass a bill this week that 
     would further tighten border security and give some illegals 
     already in America a route toward citizenship.
       But it is unclear whether the House of Representatives, 
     which has passed a tougher border security bill, will work 
     out a compromise with the Senate.
       Congress and the White House have been arguing over whether 
     Bush's plan for more border guards is the best short-term fix 
     or whether the limited amount of emergency funds should be 
     dedicated to buying vehicles, aircraft and other supplies for 
     existing patrols.
       Nationwide, each U.S. judge handles an average of 87 cases 
     a year. But along the southern border, even before Bush's 
     plan moves forward, the average is around 300 per judge, 
     Carelli said. He added that the two federal judges in Laredo, 
     Texas now carry 1,400 cases apiece.

  Mr. LIEBERMAN. Mr. President, I rise to speak on behalf of the 
Senate's historic accomplishment, our imminent passage of bipartisan 
immigration reform legislation.
  The immigration reform legislation we are about to pass enhances our 
national security, promotes our economic well being and creates a fair 
and compassionate path to citizenship for those who came here to work 
hard, pay taxes, respect the law and learn English.
  The legislation addresses serious problems that have festered for 
years. Our immigration system has been broken far too long. Some 
thought it was broken beyond repair, but it is not. This Senate reform 
bill stands for the principle that we in government can work together, 
on a bipartisan basis, to craft detailed and pragmatic solutions, and 
that we can avoid strident rhetoric that ultimately gets us nowhere.
  There are difficult realities we must face. Despite huge increases in 
spending on border security since 1993, the numbers of undocumented 
immigrants living in the United States has more than doubled, and now 
stands at an estimated 11 million. That number increases significantly 
every year as more people come here looking for work.
  We must continue to improve border security. That will require more 
Border Patrol officers, better technologies, more effective border 
security strategies, and greater expenditures. The bill we are passing 
ensures that all of those things will happen. But the flow of illegal 
migration into the country would continue indefinitely, if our only 
solution was to continue to increase border security spending.
  Immigration enforcement is also an essential component of a reform 
package. Unscrupulous employers who continue to hire and exploit 
undocumented workers must be punished. Once adequate verification 
systems are in place, employers will have no excuse for hiring 
undocumented workers. The Senate legislation will implement an 
effective verification system, and it will result in the hiring of 
additional immigration enforcement officers and funding for thousands 
of additional detention beds.
  But enforcement alone will not solve the major challenges we face. 
Last December the House of Representatives passed a punitive and 
unworkable bill. Their legislation would criminalize the 11 million 
undocumented immigrants living in the U.S., pushing deeper into the 
darkness those who already live in the shadows and turning Samaritans 
who offer humanitarian aid into outlaws. Such draconian measures would 
create a class of people within our own borders who would live and work 
without the protection of law and would be open to exploitation and 
crime. They would be forced to suffer in silence or risk being 
imprisoned if they came forward.
  How would that solve the problem? We could never imprison or deport 
more than a tiny fraction of these millions of people--people who have 
laid down roots in our communities. If we were to even try, the cost 
would be prohibitive and would turn our society into something 
approaching a police state.
  Virtually all of the undocumented immigrants living in this country 
came here to work hard and support their families. They pay taxes and 
they respect our laws. They would like nothing better than to become 
members of our society, on an equal footing, and pursue the American 
dream like so many immigrants before them. The alternative is keeping 
millions of families in the shadows, where they can be preyed upon and 
exploited. And by welcoming those hard working and law abiding people, 
we free up resources we need to seal our borders and pursue the real 
dangers of terrorists, drug traffickers, and other criminals.
  Undocumented immigrants will not get a free pass to legal residency 
and citizenship. They must earn it. Under the bill, undocumented 
immigrants who have been present in the U.S. for at least 5 years will 
be able to apply for a work visa lasting 6 years. They would have to 
pay thousands of dollars in fines, clear background checks and then 
must remain gainfully employed and law abiding. After 6 years of 
working in the U.S. on a temporary visa, an immigrant could apply for 
permanent residency a process that takes 5 years provided he or she 
paid an additional fee, proved payment of taxes and could show a 
knowledge of English and United States civics. Only after a combined 
period of 11 years could the immigrant apply for U.S. citizenship. 
Those who have been here between 2 to 5 years would have to apply 
through a stricter guest worker program, and would have to wait even 
longer before they could win legal residency.

  None of these undocumented immigrants would earn legal residency 
before we cleared the backlog of people waiting to receive visas to 
enter the U.S. Immigrants living in the U.S. legally have been waiting 
far too long to be reunited with their spouses and young children. This 
bill will clear those family reunification backlogs, and undocumented 
immigrants will have to get in the back of the line.
  Each component of the plan depends on the others for any of them to 
be effective, and the new guestworker program that the bill creates is 
an essential component. Even with the provisions I have already 
outlined, we would still face the prospect of future illegal 
immigration. Currently hundreds of thousands enter the country 
illegally. This illegal migration has fueled a lucrative and extremely 
dangerous market for human smugglers. These smuggling rings war 
violently against each other, on both sides of the border, and they 
indulge in other illicit traffic. They prey on their human cargo. This 
has to stop.
  We are accomplishing nothing if our legislation does not contain 
provisions addressing future migration flows. The guestworker program 
will channel future flows through legal avenues. People who want to 
come here to work will first be screened to ensure that they have 
committed no crimes. They can only come if they have legitimate jobs 
waiting for them.
  If we don't include a guestworker program, we will continue to see 
high rates of illegal immigration in the future. We will have 
temporarily addressed the large numbers of undocumented immigrants in 
the U.S., only to see that problem resurface again over time. But with 
the verification and enforcement provisions I have already described, 
opportunities for undocumented workers will dry up. People will have no 
incentive to illegally enter the U.S. if they know that working here 
will not be a viable option.
  Let me address concerns about American workers. I would not support 
any bill that undercuts American workers, and the Senate legislation 
contains safeguards to protect American workers. Temporary workers will 
not replace U.S. workers. Employers may

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only hire temporary workers after they spend 60 days attempting to 
recruit U.S. workers at the prevailing wage being offered. Temporary 
workers must be paid at prevailing wages, as defined by the Davis-Bacon 
Act, the Service Contract Act, or collective bargaining agreements. The 
bill contains strong protections to make sure that guestworkers are not 
exploited by labor contractors.
  These provisions, as well as the wage and working condition 
protections, are backed up by strong complaint procedures and whistle-
blower protections. Temporary workers will not be hired in the midst of 
a labor dispute and will not be recruited in areas where unemployment 
rates are high. Finally, these protections will be backed up by the 
authorization of 2,000 new Department of Labor inspectors charged with 
enforcing them.
  This legislation is far from perfect. The underlying legislation 
already contained unnecessarily punitive provisions, provisions that 
have been retained. During Senate consideration of the bill our 
bipartisan majority successfully beat back many measures that would 
have gutted the bill or unfairly punished immigrants, although I was 
disappointed by several of the votes on the Senate floor. One example 
was the adoption of an amendment offered by Senator Inhofe which would 
undermine efforts to provide services for non-English speakers in a 
wide variety of essential governmental functions.
  I was also disappointed by a setback Senator Brownback and I suffered 
in our attempt to improve our nation's treatment of asylum seekers. In 
February of 2005, the congressionally established U.S. Commission on 
International Religious Freedom issued a report that raised serious 
concerns about insufficient protections for asylum seekers arriving in 
this country.
  The problems raised by the Commission's report should shock us, given 
our nation's historic mission as a bastion for those fleeing 
persecution in their home country. The Commission found an unacceptable 
risk that genuine asylum seekers were being returned to their home 
countries where they faced repression and worse. This was occurring 
because aliens stopped at our airports and borders were not properly 
questioned about the dangers they would face if they were sent back. 
This failure to follow procedures required by law resulted in the 
inability of asylum seekers to plead their case.
  The Commission also found that while asylum seekers are having their 
applications considered, they were often detained for months in 
maximum-security prisons and jails, without ever having a chance to 
appear before an immigration judge to request bail. While being held, 
some were subjected to mistreatment or arbitrary punishments, including 
solitary confinement and the denial of basic medical needs.
  This kind of treatment of people trying to escape war, oppression--
even torture--is unacceptable in America. The U.N. High Commissioner 
for Refugees has repeatedly criticized our detention of asylum seekers 
as inconsistent with U.S. treaty obligations.
  Since the Commission's report was issued more than a year ago, I have 
routinely asked officials from the Department of Homeland Security what 
is being done about the problems the Commission identified. For more 
than a year, I have been assured that the Department was reviewing the 
report's findings. But in that time the Department did not act to 
address these shortcomings, nor did it respond to the recommendations 
as I had requested on so many occasions.
  Because of that long period of inaction, Senator Brownback and I 
introduced an amendment that would have implemented the Commission's 
most important recommendations. It called for sensible reforms that 
would have safeguarded the nation's security while ensuring that people 
fleeing persecution are treated in accordance with this nation's most 
basic values.
  Unfortunately, moments before we were to begin debate on our 
amendment, the Department of Homeland Security disseminated a position 
paper objecting to our amendment. The Department claimed that 
implementing the Commission's recommendations would have adverse 
repercussions on its operational capabilities. These were claims that I 
had never heard previously, despite my repeated inquiries to the 
highest Department officials, and they were claims that I believe are 
not supported by the facts. Nevertheless, we entered into days of 
negotiations, in which we attempted to address all of the Department's 
concerns. The negotiations were unavailing.
  Although unsuccessful on this occasion, Senator Brownback and I 
intend to introduce our amendment as freestanding legislation, so that 
we can continue to fight to ensure that people who flee oppression and 
seek freedom in America are treated in accordance with our cherished 
values. After all, we often say that we are a nation built by 
immigrants, and that is true, but in many ways we are also a nation 
founded by refugees.
  As we pass this historic legislation it is essential that we remember 
that we are a nation of immigrants and refugees. Throughout the decades 
new waves of immigrants have arrived. They came from many cultures and 
countries, they came speaking many different languages, and as they 
settled here they enriched the nation. All four of my grandparents came 
to this country to pursue a better a life, as did the family of my wife 
Hadassah, who was born in Czechoslovakia and arrived here as an infant. 
The recent immigrants about whom we have been debating these last two 
weeks have come to our country for the same reason that my grandparents 
came for freedom, opportunity, and a better life for their children.
  This legislation we pass today will enhance our border security, 
improve our ability to enforce our immigration laws, and fuel economic 
growth. But beyond these reasons, it is also fully in keeping with our 
history as a nation of immigrants.
  Mr. LEAHY. Mr. President, when the Senate resumed its consideration 
of comprehensive immigration reform last week, I began by expressing my 
hope that we would finish the job the Judiciary Committee started in 
March and the Senate began in April. We need to fix the broken 
immigration system with tough reforms that secure our borders and with 
reforms that will bring millions of undocumented immigrants out of the 
shadows. I have said all along that Democratic Senators cannot pass a 
fair and comprehensive bill alone. Over the last 2 weeks we finally got 
some help. I would like to especially thank Senators Kennedy and 
McCain, as well as Chairman Specter and the Democratic leader, for 
their tireless work on this bill.
  We got some words of encouragement from President Bush last week when 
he began speaking out more forcefully and in more specific terms about 
all of the components needed for comprehensive legislation. For the 
first time, he expressly endorsed a pathway to earned citizenship for 
the millions of undocumented workers now here. I thank him for joining 
in this effort. But his work is far from done. We will need his 
influence with the recalcitrant members of his party here in the House 
if we are ultimately to be successful in our legislative effort. 
Without effective intervention of the President, this effort is 
unlikely to be successful and the prospects for securing our borders 
and dealing with the hopes of millions who now live in the shadows of 
our society will be destroyed. Those who have peacefully demonstrated 
their dedication to justice and comprehensive immigration reform should 
not be relegated back into the shadows.
  Yesterday we were able to begin to draw to a close the Republican 
filibuster against comprehensive immigration reform. When Republicans 
filibustered two cloture votes last month, including one on a motion by 
the Republican leader, I was disappointed. I had hoped we would 
recognize the lawful, heartfelt protests of millions against the harsh 
House-passed criminalization measures. While they waved American flags, 
some of those fueling anti-immigrant feelings burned flags of other 
countries. I am encouraged that through the course of this debate we 
have been able to convince enough Senate Republicans to join us in our 
efforts and to appreciate the contributions of immigrants to our 
economy and our Nation.
  This bill is not all that it should be in my view. By incorporating 
the Hagel-Martinez formulation, we have compromised from the initial 
compromise. I have made no secret that I

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preferred the better outline of the Judiciary Committee bill. The bill 
the Senate is now considering is a further compromise. Debate and 
amendments have added some improvements as well as some significant 
steps in the wrong direction. I thank Senators Bingaman, Kerry, Obama, 
Salazar, and others for their important and constructive amendments. I 
was delighted that after some initial opposition, working with Senator 
Stevens and others, we were able to add flexibility to the Western 
Hemisphere Travel Initiative by extending its deadline another year and 
one-half through our amendment.
  The Senate unwisely rejected efforts by some of us to make it more 
flexible for those persecuted around the world. This country has had a 
history of being welcoming to refugees and those seeking asylum from 
persecution. The Senate turned its back on that history by refusing to 
allow the Secretary of State the flexibility needed after restrictive 
language was added to our laws by the REAL ID Act. I remain hopeful 
that Senators will reconsider these issues with more open minds and 
hearts and a fully understanding of the lives being affected. Sadly, 
too many were spooked by false arguments.
  Besides the Senate's failure to readjust asylum provisions to take 
into account the realities of oppressive forces in many parts of the 
world, I was most disappointed that the Senate appeared to be so anti-
Hispanic in its adoption of the Inhofe English language amendment.
  Senator Salazar and I wrote to the President following up on this 
provision and the comments of the Attorney General last week and 
weekend. We asked whether the President will continue to implement the 
language outreach policies of President Clinton's Executive Order 
13166. A prompt and straightforward affirmative answer can go a long 
way toward rendering the Inhofe English amendment a symbolic stain 
rather than a serious impediment to immigrants and Americans for whom 
English at this moment in their lives is a second language.
  I deeply regret that the Senate took such a divisive act. Over my 
strong objection and that of the Democratic leader, Senator Salazar, 
and others, a modified version of the Inhofe amendment was adopted. I 
understand why this amendment provoked a reaction from the Latino 
community as exemplified by the May 19 letter from the League of United 
Latin American Citizens, the Mexican American Legal Defense and 
Educational Fund, the National Association of Latino Elected Officials 
Educational Fund, the National Council of La Raza, the National Puerto 
Rican Coalition, and from a larger coalition of interested parties from 
96 national and local organizations.
  Until this week, in our previous 230 years we have not found it 
necessary or wise to adopt English as our official or national 
language. I believe it was in the Commonwealth of Pennsylvania that the 
State legislature shortly after the Revolutionary War authorized 
official publication of Pennsylvania's laws in German as well as 
English to serve the German-speaking population of that State. We have 
been a confident Nation unafraid to hear expressions in a variety of 
languages and willing to reach out to all within our borders. That 
tradition is reflected in President Clinton's Executive Order 13166.
  We demean our history and our welcoming tradition when we disparage 
Spanish and those who come to us speaking Spanish. I have spoken about 
our including Latin phrases on our official seal and the many States 
that include mottos and phrases in Latin, French, and Spanish on their 
State flags. We need not fear other languages. We would do better to do 
more to encourage and assist those who wish to be citizens to learn 
English, but we should recognize English, as Senator Salazar's 
amendment suggested, as our common and unifying language.
  Yesterday, once we had overcome the previous Republican filibuster, 
we were faced with a budget point of order supported by some Senators 
who oppose the bill and who added significantly to the costs of the 
bill through their amendments. Rather than continue their efforts to 
delay or derail Senate action on comprehensive immigration reform, I 
had hoped that they would join with us in a constructive way to enact 
comprehensive immigration reform. We do not need more divisiveness, 
derision, and obstruction.
  This bill is not the bill I would have designed. It includes many 
features I do not support and fails to include many that I do. The bill 
that won the bipartisan support of a majority of the Judiciary 
Committee was a compromise that contained the essential components that 
are required for comprehensive immigration reform. Before the last 
recess I was willing to support a further compromise that incorporated 
the principles of the Hagel-Martinez bill because it was proposed by 
the majority leader as a ``breakthrough'' that would allow us to pass 
immigration reform.
  I want to express my appreciation to the Democratic leader, Senator 
Reid. He was right to insist that the original version of the Kyl-
Cornyn amendment and the Isakson amendment not be rushed through the 
Senate to score political points. As the significantly revised version 
of the Kyl-Cornyn amendment attests, the Democratic leader was right. 
With a little time, and thanks to a lot of hard work, the amendment has 
been significantly changed, narrowed, and accepted. With a little time 
and bipartisan commitment the Isakson amendment was defeated.
  We have proceeded to consider dozens of amendments. Most have been 
offered by Republican Senators. Some have been approved; some have been 
tabled or rejected. The Senate has worked its will.
  Immigration reform must be comprehensive if it is to lead to real 
security and real reform. Enforcement-only measures may sound tough, 
but they are insufficient. The Senate has a responsibility to pass a 
bill that addresses our broken system with comprehensive reform and 
puts the pieces in place to secure the Nation.
  Just a few weeks ago, I went to the White House with a bipartisan 
delegation of Senators to speak with the President. The need for a fair 
and comprehensive immigration bill was the consensus at that meeting, 
and I believe the President was sincere when he told us that we had his 
support. I trust that he will urge comprehensive immigration reform on 
the Republican House leadership who has yet to endorse our bipartisan 
comprehensive approach. Without the President following through on his 
words with actions, the effort for comprehensive immigration reform is 
unlikely to be successful.
  Last week the Senate made progress. We made progress because 
Democratic and Republican Senators working together rejected the most 
strident attacks on the comprehensive bill. We joined together in a 
bipartisan coalition in the Judiciary Committee when we reported the 
Judiciary Committee bill. Democratic Senators were ready to join 
together in April and supported the Republican leader's motion that 
would have resulted in incorporating features from the Hagel-Martinez 
bill, but Republicans balked at that time and continued to filibuster 
action. Last week, Republicans joined with us to defend the core 
provisions of that bill, and we defeated efforts by Senators Kyl and 
Cornyn to gut the guest worker provisions and to undermine the pathway 
to earned citizenship. Instead, we adopted the Bingaman amendment to 
cap the annual guest worker program at 200,000 and the Obama amendment 
regarding prevailing wages in order to better protect the opportunities 
and wages of American workers.
  I spoke last week about the need to strengthen our border security 
after more than 5 years of neglect and failure by the Bush-Cheney 
administration. A recent report concluded that the number of people 
apprehended at our borders for illegal entry fell 31 percent on 
President Bush's watch, from a yearly average of 1.52 million between 
1996 and 2000, to 1.05 million between 2001 and 2004. The number of 
illegal immigrants apprehended while in the interior of the country 
declined 36 percent, from a yearly average of roughly 40,000 between 
1996 and 2000, to 25,901 between 2001 and 2004. Audits and fines 
against employers of illegal immigrants have also fallen significantly 
since President Bush took office. Given the vast increases in the 
number of Border Patrol agents, the decline in enforcement can only be 
explained by a failure of leadership.
  Meanwhile, once again the administration is turning to the fine men 
and

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women of National Guard. After our intervention turned sour in Iraq, 
the Pentagon turned to the Guard. After the Government-wide failure in 
responding to Hurricane Katrina, we turned to the Guard. Now, the 
administration's longstanding lack of focus on our porous southern 
border and failure to develop a comprehensive immigration policy has 
prompted the administration to turn once again to the Guard. I remain 
puzzled that this administration, which seems so ready to take 
advantage of the Guard, fights so vigorously against providing this 
essential force with adequate equipment, a seat at the table in policy 
debates, or even adequate health insurance for the men and women of the 
Guard.
  I have cautioned that any Guard units should operate under the 
authority of State Governors. In addition, the Federal Government 
should pick up the full costs of such a deployment. Those costs should 
not be foisted onto the States and their already overtaxed Guard units.
  Controlling our borders is a national responsibility, and it is 
regrettable that so much of this duty has been punted to the States and 
now to the Guard. The Guard is pitching in above and beyond, balancing 
its already demanding responsibilities to the States, while sending 
troops who have been deployed to Iraq. The Guard served admirably in 
response to Hurricane Katrina when the Federal Government failed to 
prepare or respond in a timely or sufficient manner. The Vermont Guard 
and others have been contributing to our national security since the 
immediate aftermath of 9/11. After 5 years of failing to utilize the 
authority and funding Congress has provided to strengthen the Border 
Patrol and our border security, the administration is, once again, 
turning to the National Guard.
  It was instructive that last week President Bush and congressional 
Republicans staged a bill-signing for legislation that continues 
billions of dollars of tax cuts for the wealthy. Instead of a budget 
with robust and complete funding for our Border Patrol and border 
security, the President has focused on providing tax cuts for the 
wealthiest among us. Congress has had to step in time and again to 
create new border agent positions and direct that they be filled. 
Instead of urging his party to take early and decisive action to pass 
comprehensive immigration reform, as he signaled he would in February 
2001, the President began his second term campaigning to undercut the 
protections of our Social Security system, and the American people 
signaled their opposition to those undermining steps. While the 
President talks about the importance of our first responders, he has 
proposed 67 percent cuts in the grant program that supplies bulletproof 
vests to police officers.

  Five years of the Bush-Cheney administration's inaction and misplaced 
priorities have done nothing to improve our immigration situation. The 
Senate just passed an emergency supplemental appropriations bill that 
allocated nearly $2 billion from military accounts to border security. 
The Democratic leader had proposed that the funds not be taken from the 
troops. But last week the President sent a request for diverting a like 
amount of funding, intended for capital improvements for border 
security, into operations and deployment of the National Guard. The 
Republican chairman of the Senate Appropriations Subcommittee on 
Homeland Security came to the Senate Floor last week to give an 
extraordinary speech in this regard.
  Border security alone is not enough to solve our immigration 
problems. We must pass a bill--and enact a law--that will not only 
strengthen the security along our borders, but that will also encourage 
millions of people to come out of the shadows. When this is 
accomplished we will be more secure because we will know who is living 
and working in the United States. We must encourage the undocumented to 
come forward, undergo background checks, and pay taxes to earn a place 
on the path to citizenship.
  In addition, last week the Senate adopted a billion-dollar amendment 
to build fencing along the southern border without saying how it would 
be funded. We also adopted amendments by Senators Bingaman, Kerry, and 
Nelson of Florida to strengthen our enforcement efforts.
  Last week we defeated an Ensign amendment to deny persons in legal 
status the Social Security benefits to which they are fairly entitled. 
I believe that most Americans will agree with that decision as fair and 
just. It maintains the trust of the Social Security trust fund for 
those workers who contribute to the fund. This week we defeated a 
Sessions amendment that would have unfairly stripped immigrants of 
earned-income tax credits. I am pleased that in both cases the Senate 
agreed not to unfairly withhold these benefits from hard-working 
immigrants who will benefit immensely from them.
  The opponents of our bipartisan bill have made a number of assaults 
on our comprehensive approach. Senators Kyl, Sessions, and Cornyn 
opposed the Judiciary Committee bill. Senators Vitter, Ensign, 
Chambliss, and Inhofe have been very active in the amendment process, 
as well. I hope that they recognize how fairly they have been treated 
and the time they have been given to argue their case against the bill 
and offer amendments. We have adopted their amendments where possible. 
A narrowed version of the Kyl-Cornyn amendment disqualifying some from 
seeking legalization was adopted. The Sessions amendment on fencing was 
adopted. The Vitter amendment on documents was adopted. The Ensign 
amendment on the National Guard was adopted. The Cornyn amendment 
imposing additional costs on immigrants was adopted.
  I trust that with so many of their amendments having been fairly 
considered and some having been adopted, those in the opposition to 
this measure will reevaluate their previous filibuster. It may be too 
much to think that they will support the bill as amended.
  Mr. DURBIN. Mr. President, I rise in support of S. 2611, the 
Comprehensive Immigration Reform Act of 2006.
  This is not a perfect bill. It is a compromise. I strongly support 
some provisions of this bill and I have serious concerns about others, 
but, on balance, I believe it is worthy of support.
  If we want to solve the problem of illegal immigration, we must take 
a comprehensive approach. We must secure our border, strengthen 
enforcement of our immigration laws, and address the situation of 
approximately 12 million undocumented immigrants who live and work in 
our country. In the final analysis, this bill does all of these things 
and that is why I will support it.
  I want to express my gratitude to Senator McCain and Senator Kennedy 
for their steadfast leadership of our bipartisan coalition for 
immigration reform. I also want to salute Senator Specter, the chairman 
of the Judiciary Committee, and Senator Leahy, the ranking member of 
the Judiciary Committee, for shepherding this bill to the verge of 
passage.
  As a member of the Judiciary Committee, and a supporter of the 
bipartisan McCain-Kennedy immigration reform legislation, I have been 
very involved in the debate over this bill for the past several months.
  The process of drafting this bill began in the Judiciary Committee in 
early March. We engaged in a serious, substantive debate. There was 
disagreement on some points, but the discussion was always respectful. 
We considered dozens of amendments during several marathon committee 
meetings. At the end of the process, we approved a tough, fair, and 
comprehensive bill on a strong bipartisan vote.
  We have seen a similar process on the floor of Senate. We have 
debated this legislation for several weeks. By my count, we have had 
over 30 roll call votes on amendments to this bill. It is rare for us 
to devote this much time and energy to a single piece of legislation. 
It demonstrates that the Senate takes the subject of immigration very 
seriously. And it is reflected in the quality of the final product.
  As I said earlier, this bill includes provisions that I oppose and 
those that I support. Let me first mention some of the provisions of 
this bill that concern me most.
  This bill includes an Inhofe amendment that declares English to be 
the national language of the United States. Unfortunately, the 
amendment goes beyond that. It includes sweeping language that some 
fear will call into question the validity of controlling Executive 
Orders and regulations.
  I am especially concerned that we not undermine Executive Order 
13166,

[[Page S5173]]

which requires Federal agencies to provide meaningful access to 
Government services for people who have limited proficiency in English. 
This Executive Order protects all of our safety and well-being by 
ensuring that limited English proficient Americans understand vital 
information that the Government provides, particularly in the event of 
a natural disaster or a threat to national security. The threat to 
Executive Order 13166 is one reason why dozens of national Latino and 
civil rights organizations oppose the Inhofe amendment.
  Senator Salazar and I authored an amendment declaring that, ``English 
is the common and unifying language of the United States that helps 
provide unity for the people of the United States.'' In contrast to the 
Inhofe amendment, the amendment that Senator Salazar and I offered 
makes it explicit that nothing in our amendment ``shall diminish or 
expand any existing rights under the law of the United States.'' The 
Senate approved our amendment on a strong bipartisan vote.
  There is no disagreement on this principle. It is very difficult to 
be successful in this country if you do not speak English. Throughout 
American history, immigrants have come to the United States and learned 
English. That process continues. According to the Urban Institute, 
nearly 40 percent of immigrant children have limited proficiency in 
English, but by the second generation, only about 20 percent have 
limited proficiency, and by the third generation children, that number 
falls to .5 percent. The U.S. Census found that 92 percent of Americans 
``had no difficulty speaking English;'' 82 percent of Americans speak 
only English at home; and most people who speak a language other than 
English also speak English ``very well.''
  Unfortunately, many immigrants who want to learn English have few 
opportunities to do so. There are waiting lists of thousands of 
immigrants for English as a second language classes in cities around 
the country. We should be creating more opportunities for immigrants to 
learn English. The Inhofe amendment would not do that. Instead, it has 
the potential to marginalize immigrants and make it more difficult for 
them to access vital government services.
  Both the Inhofe and the Salazar-Durbin amendments are in this bill. 
In the conference committee, we must clarify that Congress does not 
intend to overturn controlling Executive Orders or regulations, 
particularly Executive Order 13166.
  I am disappointed that my Republican colleagues rejected an amendment 
that I offered that would have authorized the Attorney General or 
Secretary of Homeland Security to grant a humanitarian waiver to an 
immigrant if deportation of the immigrant would create extreme hardship 
for an immediate family member of the immigrant who is a U.S. citizen 
or legal permanent resident.
  We need to strengthen enforcement of our immigration laws in order to 
restore integrity to our immigration system. As we make our laws 
tougher, we must ensure that we stay true to American values. I am 
concerned that some of the enforcement provisions in this bill are so 
broad that they will have unintended consequences. These provisions 
have the potential to sweep up long-term legal permanent residents and 
separate them from their immediate family members.
  My amendment would have created a limited waiver that would have 
applied only in the most compelling cases--where deportation of an 
immediate family member would create extreme hardship for an American 
citizen or legal permanent resident.
  The waiver would not be automatic. In every case, the immigrant would 
have to demonstrate that he meets the ``extreme hardship'' standard. In 
every case, the government would have ``sole and unreviewable 
discretion'' to deny a waiver.
  This is the same strict standard that Senators Kyl and Cornyn used in 
an amendment we approved last week by a unanimous vote. The Kyl-Cornyn 
waiver would apply in cases where undocumented immigrants are seeking 
legal status. The waiver in my amendment would apply in cases where an 
immigrant who was previously in legal status is subject to deportation 
because of a change in the law made by this bill.
  It seems inconsistent to give a chance for a humanitarian waiver to 
an undocumented immigrant and not give the same chance to a legal 
immigrant. I hope that the conference committee will revisit this issue 
and resolve this inconsistency by extending the humanitarian waiver for 
undocumented immigrants to legal immigrants who face deportation 
because of changes in the law made in this bill.
  We already give the Government broad discretion to apprehend, detain 
and deport immigrants. We should also give the Government some limited 
discretion to show mercy in the most compelling cases.
  I am also very disappointed that the Senate approved a Gregg 
amendment that would effectively gut the Diversity Visa Program, 
threaten the jobs of Americans, and exacerbate the ``brain drain''--the 
migration of talent from the poorest countries in the world to the 
richest.
  Congress created the Diversity Visa Program to provide immigration 
opportunities for people from countries with low levels of immigration 
to the United States. Diversity visas open the door to thousands of 
people from around the world who could otherwise never aspire to the 
American Dream. The program helps to ensure that the United States 
continues to be the most diverse country in the world.
  The Gregg amendment would fundamentally alter the Diversity Visa 
Program by setting aside two-thirds of diversity visas for immigrants 
who hold advanced degrees in science, mathematics, technology, and 
engineering. These set-asides would favor immigrants from wealthier 
countries and reduce the diversity of future immigration to our 
country.
  By bringing more high-skilled immigrants to the United States, the 
Gregg amendment will also increase competition for highly sought-after 
American jobs. For the same reason, I am concerned that this bill would 
increase the annual number of H-1B visas to 115,000 and allow that cap 
to increase every year if American companies use all of the available 
visas in a given year. Some experts argue that the H-1B program is 
already taking jobs away from Americans.
  I am also very concerned that the Gregg amendment would exacerbate 
the ``brain drain.''
  And unfortunately, this bill includes another provision that will 
increase the brain drain by lifting the annual cap on the number of 
nurses who can immigrate to our country every year. A story in 
yesterday's New York Times on this provision, headlined, ``U.S. Plan to 
Lure Nurses May Hurt Poor Nations,'' reports:

       A little-noticed provision in [the Senate] immigration bill 
     would throw open the gate to nurses and, some fear, drain 
     them from the world's developing countries . . . The exodus 
     of nurses from poor to rich countries has strained health 
     systems in the developing world, which are already facing 
     severe shortages of their own. . . . Public health experts in 
     poor countries, told about the proposal in recent days, 
     reacted with dismay and outrage, coupled with doubts that 
     their nurses would resist the magnetic pull of the United 
     States, which sits at the pinnacle of the global labor market 
     for nurses.

  Later I will address a provision in this bill that will take modest 
but important steps to begin to address this brain drain, but we must 
do much more.
  I am also disappointed that the Senate approved an amendment 
requiring construction of a 370-mile wall on the Southern border. We 
need to secure our border, and this bill includes literally dozens of 
provisions to do so. Among other measures, we double the size of the 
border patrol and we mandate the use of new technology to create a 
``virtual fence'' at the border.
  A wall will not secure our border. The reality is that no wall will 
prevent illegal immigration. There will always be a way around, over, 
or under a wall. In fact, experts estimate that 40 percent of 
undocumented immigrants enter the country legally and then overstay 
their visas. No wall will stop visa overstays.
  Constructing a wall will be very expensive. It will make life more 
difficult for innocent Americans in border communities, including noise 
and light pollution. It has the potential to do great harm to 
environmentally sensitive border areas. Most important, a wall will 
send the wrong message to the rest of the world about the United 
States.

[[Page S5174]]

  Now I would like to focus on the positive in this bill, especially 
measures with which I was personally involved.
  This legislation includes the DREAM Act, a narrowly-tailored, 
bipartisan measure that I sponsored with Senator Hagel and Senator 
Lugar. The DREAM Act would give undocumented students the chance to 
become permanent residents if they came here as children, are long-term 
U.S. residents, have good moral character, and attend college or enlist 
in the military for at least 2 years.
  Currently our immigration laws prevent thousands of young people from 
pursuing their dreams and fully contributing to our Nation's future. 
They are honor-roll students, star athletes, talented artists, 
valedictorians, and aspiring teachers and doctors. These young people 
have lived in this country for most of their lives. It is the only home 
they know. They are assimilated and acculturated into American society. 
They are American in every sense except their technical legal status.
  And they have beaten the odds in their young lives. The high school 
dropout rate among undocumented immigrants is 50 percent, compared to 
21 percent for legal immigrants and 11 percent for native-born 
Americans. These children have demonstrated the kind of determination 
and commitment that makes them successful students and points the way 
to the significant contributions they will make in their lives. These 
children are tomorrow's doctors, nurses, teachers, policemen, 
firefighters, soldiers, and Senators.
  The DREAM Act would help these students. It is not an amnesty. It is 
designed to assist only a select group of young people who have done 
nothing wrong and who would be required to earn their way to legal 
status.
  The DREAM Act offers no incentive for undocumented immigrants to 
enter the country. In fact, it requires beneficiaries to have been in 
the country for at least 5 years on the date of enactment.
  The DREAM Act would also repeal a provision of Federal law that 
prevents States from granting in-State tuition rates to undocumented 
students. It would not create any new tuition breaks. It would not 
force States to offer in-State tuition to undocumented immigrants. It 
would simply return to States the authority to determine their own 
tuition policies.
  The DREAM Act is not just the right thing to do, it is good for 
America. The DREAM Act would allow a generation of immigrant students 
with great potential and ambitions to contribute more fully to our 
society.
  The DREAM Act is supported by a broad bipartisan coalition in the 
Senate, and by religious leaders, immigrant advocates, and educators 
from across the political spectrum and around the country. Our 
coalition will fight to ensure that the DREAM Act is included in the 
conference report.
  I am also very pleased that we were able to remove some of the bill's 
harshest provisions during the Judiciary Committee markup.
  The original version of this bill would have taken the unprecedented 
step of criminalizing people based solely on their immigration status. 
That is not the way we should treat immigrants in our country. And that 
is not the way our criminal justice system works. We punish people for 
their conduct, not their status.
  Criminalizing immigrants will not help us to combat illegal 
immigration. Our Government does not have the time or resources to 
prosecute and incarcerate 12 million people. Enacting yet another law 
that would not be enforced will not solve the problem of illegal 
immigration. In fact, it would make the problem worse.
  If we make undocumented immigrants into criminals, we will drive them 
further into the shadows. This will harm our national security because 
we will be unable to identify who is in our country.
  This is also a moral issue. We are measured by how we treat the most 
vulnerable among us. It is not right to make criminals of millions of 
people who go to work every day cooking our food, cleaning our hotel 
rooms, and caring for our children and our parents. It is not right to 
make criminals of those who worship with us in our churches, send their 
children to school with our own and love this great and free land as 
much as any of us.
  During the Judiciary Committee markup, I offered an amendment to 
strike the provision that would have criminalized undocumented 
immigrants. My amendment was approved by a strong bipartisan vote, and 
as a result that provision is not in the bill we are considering today.
  The original version of this bill also included a provision that 
would make it a crime for innocent Americans to provide humanitarian 
assistance to undocumented immigrants. This provision stated that it 
would constitute alien smuggling, an aggravated felony to ``encourage 
or induce a person to . . . remain in the United States, knowing or in 
reckless disregard of the fact that such person is an alien who lacks 
lawful authority.''
  This language is so broad and vague that it could conceivably 
constitute an aggravated felony for a priest to counsel an undocumented 
mother to stay in the United States with her U.S. citizen children, 
rather than abandoning them to return to her home country. And a 
domestic violence shelter that takes in a battered immigrant spouse 
without asking whether or not she has a green card could be guilty of 
alien smuggling.
  Americans honor our heritage as a Nation of immigrants by welcoming 
and caring for new arrivals in our country. We should thank them for 
their service, not prosecute them.
  The original version of the bill included an exception for 
humanitarian assistance, but it was far too narrow. It only would have 
protected individuals, not organizations, like churches, hospitals, 
schools, or unions. It would only have applied to ``emergency 
humanitarian assistance,'' not aid that is provided in non-emergency 
situations. It only would apply to assistance that is ``rendered 
without compensation or the expectation of compensation.'' And it would 
only cover humanitarian assistance, not other types of lawful activity 
like labor organizing.
  Charitable organizations, like individuals, should be able to provide 
humanitarian assistance to immigrants without fearing prosecution. 
Churches, shelters, and schools should not be limited to providing only 
``emergency'' assistance. A domestic violence shelter should not be 
forced to decide whether the Government would regard a situation as 
``an emergency'' before they take in a battered woman. A non-profit 
hospital should not be required to provide medical care without 
compensation in order to avoid criminal prosecution. And labor unions 
should be able to organize workers without checking their green cards.
  During the Judiciary Committee markup, I offered an amendment to this 
provision which was approved on a strong bipartisan vote. My amendment 
expanded the humanitarian exception to cover organizations. It made it 
explicit that humanitarian assistance includes, but is not limited to, 
housing, counseling, and victim services. It eliminated the provisions 
that limit the humanitarian assistance exception to emergency 
situations and to assistance that is rendered without compensation.
  My amendment also eliminated the provision that would have made it a 
crime to encourage or induce an undocumented immigrant to ``remain in'' 
this country. As a result, the law remains the same: it is not a crime 
to engage in activities like labor organizing with undocumented 
immigrants, which could conceivably be construed by an overzealous 
prosecutor to constitute encouraging someone to remain in the United 
States.
  Unfortunately, H.R. 4437, the immigration bill passed by the 
Republican-controlled House of Representatives, still includes 
provisions that would criminalize hard-working immigrants and good 
Samaritans who provide humanitarian assistance to immigrants. This is 
an issue that I will monitor very closely. A conference report that 
criminalizes millions of undocumented immigrants and the innocent 
Americans who care for them will be unacceptable to me and many other 
Senators on both sides of the aisle.
  This bill includes an amendment I offered to address a critical 
international problem: the dire shortage of healthcare personnel in the 
least developed nations of the world. Shortages of healthcare personnel 
are a global problem, but the brain drain of doctors, nurses, and other 
health workers from

[[Page S5175]]

the poorest countries in the world to the richest is an urgent problem. 
According to the World Health Organization, Africa loses 20,000 health 
professionals a year as part of this brain drain. In Ethiopia, for 
example, there are now only 3 doctors and 20 nurses per 100,000 people. 
By comparison, there are 549 doctors and 773 nurses per 100,000 people 
in the United States. Experts say the shortage of health care personnel 
is the single biggest obstacle to fighting HIV/AIDS in Africa.
  My amendment would take two measured steps to address the brain 
drain.
  In exchange for financial support for their education or training, 
some foreign doctors, nurses, and other healthcare workers have signed 
voluntary bonds or made promises to their governments to remain in 
their home countries or to return from their studies abroad and work in 
the healthcare profession.
  The Durbin amendment will require people who are applying for legal 
permanent residency or for visas to work as health care workers in the 
United States to attest that they do not have an outstanding commitment 
to perform healthcare work in their home country that they have 
incurred in exchange for support for their education or training.
  If an applicant has made such a commitment as part of a voluntary 
agreement, the applicant would be inadmissible until he or she has 
fulfilled this commitment. This will enable underdeveloped countries to 
benefit from the investments they have made in their citizens' medical 
education and training, and it will ensure that U.S. immigration policy 
respects commitments that immigrants have made. The Secretary of 
Homeland Security would be able to waive this requirement in certain 
compelling circumstances.
  The amendment will also allow healthcare workers who are legal 
permanent residents of this country to provide healthcare assistance in 
developing countries for up to 36 months without prejudicing their own 
immigration status. During the period when the healthcare worker is 
providing assistance, he or she would be deemed to be physically 
present in the U.S. for purposes of naturalization.
  Many immigrants who have come to this country would like to 
participate in the fight against global AIDS and other health crises. 
Under my amendment, they could lend their skills to developing nations 
without sacrificing their own American dreams.
  These small but important steps will not stop the brain drain, but 
they will signal American leadership in the effort to help stem the 
migration of talent from the poorest countries in the world to the 
richest.
  I am also pleased that this bill includes important reforms to the 
immigration court system that will improve the quality of judicial 
decision-making and help to protect due process.
  Just as important, the bill does not include provisions from the 
original version of this bill that would have undermined judicial 
review of immigration appeals.
  One provision would have stripped Federal appellate courts of their 
jurisdiction over immigration appeals and redirected these appeals to 
the Federal Circuit Court, a small specialized court whose caseload 
consists largely of patent Federal personnel, and Government contract 
cases.
  Another would have assigned all immigration appeals to a single 
Federal Circuit judge, who would have acted as a gatekeeper to full 
appellate review. Unless this single judge issued a so-called 
``certificate of reviewability,'' the appeal would be denied.
  In recent years, Federal appeals courts judges around the country 
have been outspoken about the serious problems with our immigration 
court system.
  Take the example of Judge Richard Posner, a highly-respected 
conservative who sits on the 7th Circuit in my home state of Illinois. 
Last year, Judge Posner issued an opinion in which he concluded, quote, 
``the adjudication of [immigration] cases at the administrative level 
has fallen below the minimum standards of legal justice.''
  After I reviewed the troubling provisions in the original version of 
this bill, I asked Judge Posner for his reaction to them. Judge Posner 
sent me a letter, which I circulated to the members of the Judiciary 
Committee. In his letter, Judge Posner concludes, ``Funneling all 
petitions for judicial review of [immigration] orders to the Federal 
Circuit and authorizing single judges of that court to deny petitions 
without further review are neither just nor effective solutions.''
  In the aftermath of Judge Posner's letter, others stepped forward. 
The Judicial Conference, the policy-making arm of the Federal 
Judiciary, expressed their opposition to these provisions. John Walker, 
a Republican appointee who is the Chief Judge of the 2nd Circuit wrote 
in opposition to these provisions, concluding, ``Reassigning petitions 
for review to the Federal Circuit and allowing their disposal by only 
one judge will neither reduce the backlog more efficiently, nor protect 
the aliens' entitlement to adequate review. Indeed the reverse is 
likely.'' Dozens of other sitting and retired appellate judges, law 
school deans and professors expressed similar views.
  In fact, as the Judicial Conference explains, the Fed. appeals courts 
are making progress in clearing the existing backlog of immigration 
appeals: ``These courts have worked diligently to establish court 
management procedures to assist them in effectively and efficiently 
handling these cases. These measures are enabling the courts to process 
significantly larger numbers of cases than in prior years.''
  Judges and scholars have concluded that the solution to the problems 
in our immigration courts is to increase their capacity. As Judge 
Posner says, ``The only just and effective way of alleviating the 
burden of immigration appeals is by greatly augmenting the decisional 
capacity of the Immigration Court and the Board of Immigration 
Appeals.''
  Similarly, Judge Walker concludes, ``The principal problem with the 
current system is that both the Immigration Judges and the BIA are 
impossibly overtaxed... I firmly believe the most effective and sound 
way of addressing this problem is by allocating sufficient resources to 
expand the capability of the Department of Justice, rather than 
altering the procedures for judicial review.''
  After considering the input of Judge Posner and other judges and 
scholars, I decided to offer an amendment to strike the provisions that 
would consolidate immigration appeals to the Federal Circuit Court and 
give a single judge the power to deny an immigration appeal. In 
response, Chairman Specter decided to remove these provisions from the 
original bill and they are not in the bill that we are considering 
today.
  As judges and scholars advised us, the bill does include provisions 
that would bolster the capacity of the immigration courts by, among 
other things, increasing the number of immigration judges and members 
of the Board of Immigration Appeals. I hope that the conference 
committee retains these improvements.
  Most important, this bill takes a comprehensive approach that is 
tough but fair. We would improve our border security by increasing 
manpower and deploying new technology. We would crack down on the 
employers that are hiring millions of undocumented workers.
  We need tougher enforcement, but in this bill we acknowledge 
something that the House of Representatives' bill does not: A strategy 
that focuses only on enforcement is doomed to failure.
  In the last decade, we have doubled the number of Border Patrol 
agents and they have spent eight times as many hours patrolling the 
border. During the same period, the number of undocumented immigrants 
has doubled.
  We need a realistic and reasonable approach to address the 12 million 
undocumented immigrants living here today.
  As the Department of Homeland Security acknowledges, mass deportation 
is not an option. It is impractical and too expensive. Experts estimate 
that deporting all of the undocumented would cost over $200 billion--
that's five times the annual budget of DHS.
  Amnesty is not an option. It is not right to reward those who have 
broken the law with automatic citizenship.
  If we are serious about reform, we need to offer a chance for 
immigrants who work hard and play by the rules to earn their way to 
citizenship over the course of many years.

[[Page S5176]]

  Some people claim this is an amnesty. But under the Judiciary 
Committee bill, undocumented aliens can earn their way to citizenship 
only if they have a clean criminal record, have been employed since 
before January 2004, remain continuously employed going forward, pay a 
large fine, pass a security background check, pass a medical exam, 
learn English, learn U.S. history and government, pay all back taxes, 
and go to the ``back of line'' behind all applicants waiting for green 
cards.
  This is an II-year path to earned citizenship, not an amnesty.
  Frankly, if we do not give people the chance to earn their way to 
citizenship, we will not solve the problem of illegal immigration. 
People who are living here illegally will stay in the shadows instead 
of coming forward to register. This would hurt our national security 
and hurt American workers, who are being undercut by illegal labor.
  And it is not the American way. It is important to remember that this 
is not just a national security issue and an economic issue--it is also 
a moral issue. Scripture teaches us to treat immigrants as we would 
like to be treated: ``The strangers who sojourn with you shall be to 
you as the natives among you, and you shall love them as yourself, for 
you were strangers in the land of Egypt.'' That is why the Catholic 
Church and so many other faith communities support comprehensive 
immigration reform that includes a path to citizenship for hardworking 
immigrants who play by the rules.
  Today is a historic day in the United States Senate, but there is 
still one more bridge to cross. We must reconcile this bill, which 
takes a comprehensive approach, with the harsh enforcement-only 
legislation passed by the Republican-controlled House of 
Representatives. The President says he supports comprehensive reform. 
Now he must exercise leadership to make it a reality.
  Mr. KOHL. Mr. President, I rise in support of the comprehensive 
immigration reform bill today. This bill appreciates the importance of 
addressing the problem of illegal immigration and border security while 
at the same time proposing an intelligent solution to the issue of the 
millions of people here without documentation today.
  First and foremost, we need to control our borders and enforce our 
laws. This bill adds thousands of additional border patrol agents and 
authorizes the use of the National Guard to help secure our borders. It 
wisely increases the use of technology--including unmanned aerial 
vehicles, UAVs, cameras, and motion sensors--so we can succeed in 
controlling our borders. It also enhances the authority of our 
immigration enforcement officials to deport criminals and others who 
may seek to do us harm. This will significantly enhance our ability to 
catch people before they enter the country, and deport those who do. I 
could not support a bill that I did not believe could secure our 
borders.
  Border security alone is not sufficient. We must also enforce our 
laws in our interior. This bill includes a strong employment 
verification system, so that employers can determine who in this 
country is eligible to work, and will be punished when they employ 
those who are here illegally. If we do not dry up the demand for 
illegal workers among employers, it will remain difficult to control 
the supply of illegal immigrants trying to enter our country.
  Law enforcement alone, however, is not the entire solution. We must 
be realistic about how to deal with the millions of undocumented 
immigrants currently in this country. It is not realistic to deport 
them all. For those hardworking, law-abiding people who have been here 
for years and set down roots in our communities, it is reasonable to 
allow them to earn citizenship over a significant time period. This is 
not amnesty, and it is not automatic legalization. Under this bill, if 
they pay thousands of dollars in fines for violating our immigration 
laws, work for a number of years, learn English, and pay any taxes they 
may owe, only then do they go to the back of the citizenship line. They 
are asked to earn their legalization over the course of eleven or 
twelve years and demonstrate that they deserve to be an American.
  We have succeeded in creating a comprehensive bipartisan solution, 
one that I believe effectively addresses each of the many complex 
issues that plague our immigration system today. There are few issues 
as important as immigration facing this country today, and I am glad 
that we have put the time and effort into crafting a solution we can be 
proud of: one that is both tough and fair.
  Mrs. FEINSTEIN. Mr. President, I wish to comment on amendment No. 
4084, which was tabled yesterday.
  The Chambliss amendment would modify the eligibility requirements for 
blue card and green card status under AgJOBS, as drafted in the 
Comprehensive Immigration Reform Act.
  The Chambliss amendment would make the AgJOBS earned legalization 
program unworkable by denying most farm workers access to it.
  Just yesterday, my staff received an e-mail from the California 
Canning Peach Association, which produces 80 percent of the peach 
volume in California. They said that the Chambliss amendment would 
eliminate at least 90 percent of their workers from pursuing earned 
adjustment under the current AgJOBS language.
  When I look at the Chambliss amendment, I find it to be counter to 
the language in AgJOBS.
  One reason I believe the Chambliss amendment is counter to providing 
American farmers with a legal work force is the work day requirement he 
proposes.
  Senator Chambliss' amendment would change the definition of 
``workday'' to 8 hours per day. This change would essentially gut the 
bill because agricultural workers simply wouldn't be able to 
demonstrate 8-hour workdays.
  Under his amendment, in order to get a blue card, agricultural 
workers would have to prove that they worked at least 150 work days per 
year during the 24-month period ending on December 31, 2005.
  Anything short of an 8-hour day wouldn't count.
  This is just unworkable and impractical. There are many reasons why a 
farm worker might not be able to demonstrate 8-hour workdays, such as:
  Weather conditions--maybe it is raining or too cold, there's hail. 
For instance, oranges can't be picked wet nor can table grapes. So if 
it rains and workers have only worked 6 hours, they have to call it a 
day. That wouldn't count under the Chambliss amendment.
  Transportation issues--workers may not be able to catch a ride one 
day, or their ride may leave after only 7 hours. That wouldn't count 
under the Chambliss amendment.
  Market demands--workers can only pick what growers ask of them, and 
if the market only demands x number of oranges in 1 day and that only 
takes 6 hours, then that is all the work they will have in that day. 
That wouldn't count under the Chambliss amendment.
  Sickness--a worker may have a cold or other ailment that might keep 
them from working for a few days. In agriculture, given the seasonal 
nature of work, a few days lost are precious to a worker.
  Labor shortages--one condition that growers tell me about are labor 
shortages and how they impact how many hours workers put in. For 
instance, a crew of workers might be in such demand that they only put 
in 7 hours each per day. That wouldn't count under the Chambliss 
amendment.
  All of these are reasons why workers may not put in 8-hour workdays. 
And if they don't, then that doesn't count toward their eligibility and 
they remain here illegally.
  The average number of hours that California agricultural workers log 
daily is 5.97 hours per day. And that's for crops like citrus, 
vegetables, tree fruit.
  Many farm workers do not work 8 hours per day even when working full-
time and 6 days a week.
  Frequently, agricultural workers work 3 to 7 hours per day. This 
amendment would deny workers credit for their farm work on such days, 
and deprive them of the chance to enter the program.
  Many jobs in agriculture result in fewer than 8 hours per day, 
particularly at times other than the peak of the harvest.
  Luawanna Hallstrom with Harry Singh & Sons, which is the largest 
single vine ripe tomato grower in the

[[Page S5177]]

country, explained the following to my staff about the average hours 
worked in a season, and how they may vary in a typical year or season 
at their farm in San Diego, CA.
  She said that work hours and days can change from one year to the 
next because of reasons beyond their control--weather, production, 
changes to timing of harvest, fluctuation in number of employees 
available at any point in time, disease and more.
  Ms. Hallstrom noted that agriculture is extremely fluid and 
vulnerable and a typical work week for them can consist of anything 
from 0 to 10 hours.
  Another grower, Benny Jefferson, a large vegetable grower in 
Monterey, CA told my staff that his average worker works 6 hours per 
day and that 8-hour days would be a serious problem for him.
  By way of example, the following job offers were posted in America's 
Job Bank of the U.S. Department of Labor:
  Seeking farm worker for ``harvesting fruits such as blueberries, 
cherries, strawberries, grapes, oranges, and pecans'' in Georgia for 
``full time'' work of 32 hours per week.
  Seeking Citrus Harvest Worker in Florida for a contract period from 
April 30, 2006, to June 30, 2006, Monday through Saturday. Hours: 36 
hours per week, 6 hours per day.
  Florida employers seek nursery labor in West Virginia for 40 hours 
week, 7 hours per day Monday through Friday and 5 hours on Saturdays.
  What do these job postings show? That even ``full time'' work often 
means less than 8 hours per day.
  So I believe that the Chambliss amendment, if successful, would 
deprive most farm workers of the chance to enter the earned 
legalization program, or if they entered, the chance to earn a green 
card.
  The Chambliss amendment is an effort to destroy the AgJOBS 
compromise. It is not only unfair but counterproductive.
  One purpose of AgJOBS is to stabilize the workforce by encouraging 
undocumented workers to come forward and work in agriculture in return 
for the opportunity to earn a blue card and eventually, after 
additional hard work in the fields, a green card.
  By depriving many farm workers of this opportunity, the Chambliss 
amendment would perpetuate the unstable farm labor force that contains 
so many undocumented workers.
  Mr. OBAMA. Mr. President, on May 1, I was in Chicago to witness a 
monumental event. There were close to half a million people marching 
for comprehensive immigration reform. They were mostly people of 
Mexican origin, but among them were also Nigerians, Polish, Irish, 
Central American immigrants, and their American-born friends, family, 
and supporters.
  By now, most Americans are familiar with the issues surrounding 
immigration. We have a system of legal immigration under which 1 
million people apply for legal residency each year and eventually 
pursue citizenship if they choose. Another 500,000 come across the 
border illegally and evade our border patrol.
  There are an estimated 12 million undocumented persons here working 
mostly in backbreaking jobs in agriculture, construction, packing 
plants, restaurants, and elsewhere. Some in the media have presented 
them as an invading hoard.
  But I spoke to the marchers who gathered 3 weeks ago, and what I saw 
was nothing to fear. They have come here for the same reason other 
immigrants have come for generations: to pursue the notion that they 
can make a better life for themselves, and most importantly for their 
children, if they work hard and apply themselves.
  Our country is ambivalent about this influx of undocumented 
immigrants. Many Americans, including myself, believe that these people 
are doing what many of us would do for our own children in the same 
situation. They take immense risks to get here and would not have come 
illegally if they could have come legally through the limited visas we 
issue each year.
  But while Americans understand the human desire to pursue a better 
life, they know we do not have an infinite capacity to absorb everyone 
who would like to come here. Ours is a nation of laws. And we cannot 
perpetuate a system that continues to have people coming here outside 
the law.
  Economists debate the effect undocumented workers have on the economy 
and opportunities available to Americans. There are areas where 
immigrants are doing jobs Americans would not do. But there are other 
circumstances where employers are bringing in workers for jobs that 
Americans would fill if employers paid fair wages. In the African-
American community, where unemployment rates often remain high, there 
is some tension about whether we should be importing large numbers of 
workers to compete with American workers.
  What I say to them is that immigrants in illegal status have no 
ability to fight for fair pay and fair treatment. African-American 
workers and Latinos at the bottom of the wage ladder will all be better 
off if these workers can come out hiding and defend themselves.
  Today, under Chairman Specter, Senator Leahy, Senator McCain, and 
Senator Kennedy's leadership, we will pass a bill that provides 
stronger border security, meaningful enforcement in the workplace, and 
a long, earned pathway to citizenship. The idea for the undocumented is 
that they would jump through multiple hoops over an 11-year period to 
earn the right to stay and eventually become citizens of the United 
States.
  The Senate bill upholds our tradition as a nation of immigrants and 
proposes reforms in a comprehensive, commonsense manner, and it imposes 
new, strict but sensible enforcement mechanisms.
  The opponents of this effort have called it amnesty. They would 
prefer a punitive House bill that builds a wall across our southern 
border, deports the 12 million people here illegally, and makes any 
undocumented worker a felon.
  That kind of approach is not realistic. We are not going to deport 12 
million people. Millions of them have American children. Many have been 
here for many years and have deep roots. It is hard to imagine that we 
would have police and immigration officials invading people's homes, 
separating families, and forcibly sending people home. But Americans 
are right to demand that we end illegal immigration going forward.
  The draconian House legislation led to the marches. But what started 
as marches of fear on the part of immigrant workers has turned into a 
movement of hope. People are hoping they have an opportunity to 
legalize their status in some way. Their hope and our hope is that we 
can move forward together.
  This was and will continue to be an emotional debate. What we saw in 
the marches was the face of a new America. The face of our country is 
changing, and we cannot be threatened by it. I strongly believe that we 
are going to be better off united than divided.
  But I also believe in a common culture. I told the immigrants at the 
marches that citizenship involves a common language, a common faith in 
the country, a common sense of purpose, and a loyalty to a common flag. 
I believe that this is what the immigrant community wants. They want to 
follow in the steps of the millions who came before them and helped our 
country meld from many peoples into one Nation. In diversity we come 
together as one.
  To those who fear immigrants, I say we cannot have a country in which 
you have a servant class picking our lettuce, mowing our lawns, and 
caring for our children, but who never have the full rights and 
obligations of citizenship.
  Today, the Senate will respond to the call for action from not only 
these marchers but all Americans who want to uphold our finest 
traditions. It has been a tough few weeks, but I am proud of this body 
today. We worked hard, conducted a civil debate, and have taken a big 
step toward fixing our immigration system. My hope is the conferees 
will put their stamp of approval on the Senate bill we are passing 
today.
  Let me say that while I support this bill, it is not perfect. I have 
serious reservations about several of the provisions in the bill, most 
notably the guest worker provision. I voted for two amendments offered 
by Senator Dorgan that would have eliminated or sunsetted the 
provision, but these amendments failed. I am pleased, however, that the 
Senate adopted an

[[Page S5178]]

amendment by Senator Bingaman that lowers the number of guest workers 
that could enter the country under this bill.
  I also am concerned about the changes we have made to the diversity 
visa program that will end up disadvantaging potential immigrants from 
underrepresented countries, such as African countries.
  On balance, however, this is a very good bill. It gives us strong 
border security, makes hiring illegal workers virtually impossible, and 
provides all those families, children, mothers, and fathers I saw in 
that amazing march with the opportunity to become full members of the 
American community.
  I was pleased that two amendments I offered were included in the 
bill. One amendment strengthened the prevailing wage requirements in 
the bill for all American workers and all jobs. It also ensured that 
communities where the American unemployment rate is high will not 
experience unnecessary competition from guest workers.
  The second amendment was a collaborative effort with Senators 
Grassley, Kennedy, and Baucus to create a new employment eligibility 
verification system. We are making it simple but mandatory for 
employers to verify that their employees are legally eligible to work 
here. This amendment will have a far greater impact on stopping the 
flow of illegal immigrants into this country than simply building a 
fence along the border.
  I commend my colleagues for their work on this legislation. Together, 
with faith in the values that unite our country, we are moving forward 
true to our tradition as a nation of immigrants that is capable of 
coming together to resolve difficult challenges.
  I urge my colleagues to support this bill.
  Mr. CONRAD. Mr. President, I am voting for the immigration reform 
bill today because it is urgent that we act to secure our borders. And 
we must find a way to deal with the 11 or 12 million illegal immigrants 
already living in the United States. As imperfect as this bill is, it 
is at least a beginning on strengthening our borders and dealing with 
those who are here illegally.
  Currently, we have 500,000 new illegal immigrants entering our 
country every year. That is an unacceptable security risk. If we cannot 
control our border, we cannot control our future.
  This bill dramatically strengthens border security. It provides for 
triple-layered fencing, adds thousands of additional Border Patrol 
agents, and cracks down on employers who hire illegal aliens.
  The bill also begins to deal with the 11 to 12 million illegal 
immigrants who are currently in this country. The bill provides a path 
to earned legalization for those who pay a fine, pay back taxes, learn 
English, and fulfill other requirements. We need some process like 
this; the alternative of deporting 11 million people who do not want to 
leave is simply unrealistic.
  Finally, the Congressional Budget Office has concluded that this bill 
will have a positive effect in reducing the deficit.
  However, there are serious flaws in this bill. I think that asking 
the millions of illegal aliens who have been in this country fewer than 
5 years to return home before getting on a path to citizenship is 
unworkable. And, although the bill was improved by cutting in half the 
number of new guest workers who will be able to enter the country next 
year, I still cannot support the guest worker provisions. Finally, 
overall, the bill will result in millions of new immigrants entering 
the country over the next decade. In my view, we need to consider very 
carefully the effects on our society of trying to assimilate such a 
large number of additional immigrants in a relatively short period of 
time.
  But at the end of the day, we are faced with one question: will this 
bill help secure our borders and deal with the people who are here 
illegally? I have concluded that, although deeply flawed in many 
respects, it does make improvements over the current failed system.
  This is not the end of the process. During the negotiations between 
the House and the Senate, there will be opportunities to address the 
serious flaws and produce a better bill. If, at the end of the process, 
the bill is not substantially improved, I will not be able to support 
the final product.
  Mr. Hatch. Mr. President, although I rise today in opposition to S. 
2611, the Comprehensive Immigration Reform Act of 2006, I would like to 
take a moment to commend its proponents.
  The task of reforming this Nation's broken immigration system is 
Herculean. As my colleagues know all too well, the issue of immigration 
riles--justifiably so--the public like nothing else. I cannot think of 
any piece of legislation that has provoked a prolonged national debate 
such as this one. I cannot think of a day in recent months that I have 
not turned on the television or picked up a newspaper and read about or 
listened to a discussion of immigration reform.
  This bill consisted of roughly 616 pages when we began this debate 
last week, and I have no doubt that the legislation is now over 700 
pages. This undertaking has been truly monumental, and while I do not 
agree with the result, I must acknowledge and commend the sincerity, 
the diligence, and the good faith of the bill's architects.
  The majority leader, the distinguished Senator from Tennessee, should 
be recognized for his leadership on this pivotal issue. The fact that 
Senator Frist has managed to get an immigration bill through the Senate 
despite a splintered caucus and a hotly partisan atmosphere is a 
tribute to his abilities as a leader.
  While I believe Senator Frist deserves a great deal of the accolades 
for the passage of this bill today, I would be remiss if I did not 
mention Judiciary Committee Chairman Arlen Specter. The senior Senator 
from Pennsylvania has once again achieved the impossible. This bill, 
regardless of what one thinks of the policies it contains, is a tribute 
to his daunting work ethic, intelligence, and remarkable ability. Time 
and time again, Chairman Specter has overcome the odds both personally 
and professionally--to make sure the people's work is done, and done 
well.
  There are many others who deserve recognition--Senators Mel Martinez 
and Chuck Hagel were critical to this effort, and we cannot ignore the 
tireless efforts of Senators John McCain and Ted Kennedy. I must also 
thank Senators John Kyl, Jeff Sessions, and John Cornyn for their 
vigilance and conscientious objections to this legislation. Their work 
has been invaluable and will continue to be so as we move to 
conference.
  It is with great regret that I cannot endorse the substance of the 
bill before us despite the best efforts of many in this body. There are 
many laudable aspects of this bill--particularly the enforcement 
provisions--and, as many believe, the DREAM Act, upon which we worked 
so hard through the years, but at the end of the day this bill amounts 
to an amnesty that is several orders of magnitude larger than the one 
undertaken in 1986.
  I would like to provide some perspective to this debate. In 1982, 
award-winning journalist Mr. Theodore W. White stated the following in 
his book, America in Search of Itself: ``The United States has lost one 
of the cardinal attributes of sovereignty--it no longer controls its 
own borders. Its immigration laws are flouted by aliens and citizens 
alike, as no system of laws has been flouted since Prohibition.'' These 
words were true nearly a quarter of century ago, and they are true 
today. Some may ask what Congress has done to address the issue during 
this time well, I will tell you. In 1986, Congress passed, among other 
things, the Immigration Reform and Control Act, or IRCA, and we passed 
stringent enforcement measures in the 1990s. I submit that neither the 
IRCA amnesty policy nor the previous enforcement measures have worked. 
Moreover, I submit that the current legislation amounts to the 
combination of two failed policies that will yield nearly identical 
results today and in the future.
  We are all aware that we have lost control of our own borders. The 
President of the United States has made statements to that effect. 
Something has to be done. Illegal immigration has also been tied in 
with the enormous flow of illegal drugs into this country and to 
international terrorist violence being imported here from abroad. 
Something must be done, but this bill is not the answer.
  The idea that a legalization or amnesty can be given to potentially 
millions of illegal immigrants, who arrived illegally in this country 
before

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January of 2004, is to undermine the very principles of legality upon 
which our entire immigration system is founded. In the words of my 
former colleague, Senator Richard Schweiker, the so-called legalization 
or amnesty ``puts the Government squarely behind the lawbreaker, and in 
effect, says
`Congratulations, you have successfully violated our laws and avoided 
detection--here is your reward.' '' In clear language, granting amnesty 
rewards the lawbreaker, pure and simple.
  To highlight the scope of this problem and the dangers of charting 
the wrong course yet again, I must point out to my colleagues that a 
significant portion of the comments I just made are over 20 years old. 
I changed a few names and a few numbers, but the substance remains the 
same.
  It took the proponents of the Immigration Reform and Control Act of 
1986 3 years to put a bill together. This effort took 3 months. Despite 
the rhetoric to the contrary, the bill before us today constitutes a 
massive amnesty one several orders of magnitude larger than the one 
undertaken 20 years ago. I do not understand how this body has failed 
to learn from its mistakes.
  I commend the sincerity, the diligence, and the good faith of this 
bill's proponents, but I cannot agree in its result.
  I fail to understand how a massive guest worker program that 
constitutes an end run around our immigration system is a good idea.
  I fail to understand how an amnesty for millions of illegals is a 
good idea.
  I fail to understand how a bill that does not address the root causes 
of our immigration crises is a good idea.
  I ask my colleagues, why does this legislation ignore the 
recommendations of the U.S. Commission on Immigration Reform--an entity 
that spent 7 years examining the issue of immigration and making 
recommendations for this august body? Why do we insist on pursuing 
failed policies? We have an obligation to the American people to leave 
no stone unturned in this debate, but we have failed to live up to that 
obligation.
  The time has come to undertake truly comprehensive reform. We must 
start from the ground up. We must secure our borders. We must identify 
the problems with the current immigration system with certainty. We 
must, in turn, develop meaningful solutions. I submit that the bill 
before us today builds upon a faulty foundation--we may have renovated 
a few rooms, we may have updated a few appliances, but it will all come 
to naught unless we fix the basic structure.
  My colleagues know the extent of my commitment to my Hispanic 
friends. I founded and I have chaired the U.S. Senate Republican 
Conference Task Force on Hispanic Affairs for years now--I know the 
immigration issue is not solely a Latino issue, but we all know that 
the vast majority of the illegal aliens in this country are Hispanic. I 
say to my friends that my opposition to this bill has nothing to do 
with a lack of support or dedication to the Latino community but, 
rather, a fundamental and principled opposition to widespread amnesty. 
We have been down that road, and that road led us to this moment.
  There is no question that the millions of people who are here 
illegally broke the laws of the land and further that they should not 
be rewarded for that conduct. We gave over three million illegals 
amnesty 20 years ago. Today, we are poised to grant amnesty to three 
times that number. When will we learn? What will we do when we are 
faced with this exact situation in another 20 years? Enough is enough.
  We must take the time to craft real legislation with real solutions 
to real problems. We cannot afford another failure. Our children cannot 
afford another failure. And our Nation cannot afford another failure.
  We must restructure our visa system. We must determine--
affirmatively--what policies should guide admission to this country. We 
must provide for a truly temporary guest worker program. We must create 
a realistic and effective employer verification system. And we must 
find a humanitarian, just, and equitable solution to the millions of 
people in this country illegally.
  This bill does nothing to address the underlying flaws in the current 
immigration system. This bill does not fix the current visa system. 
This bill does not create a truly workable employer verification 
system. This bill does not create a truly temporary guest worker 
program. Instead, this bill creates more visa categories. It increases 
the numbers in existing visa categories. It creates a shell of an 
employer verification regime. It creates a guest worker program that is 
an end run around the immigration system. And finally, it grants the 
largest amnesty ever undertaken in any country, at any time.
  I wish I could support this bill. I wish we had taken more time in 
Committee, I wish we had taken more time before the Committee process, 
and I wish we crafted a comprehensive reform bill that actually lived 
up to its name.
  I am fully aware of the hard work on both sides of these very 
important issues. It is important that we get this bill to conference 
where I hope we can correct the many deficiencies therein, and I am 
aware some are voting for it with that in mind despite their severe 
reservations.
  I believe it is absolutely critical that the Congress address the 
issue of immigration, and I look forward to working to improve this 
bill during the course of our negotiations with the House. The real 
work lies before us, and I believe the men and women of both bodies 
have the mettle, the tenacity, the intelligence, and the drive to do 
what is right for the American people.
  Mr. KERRY. Mr. President, I am proud to cast my vote today in support 
of S. 2611, the immigration reform bill. This legislation has strong 
bipartisan support--something we don't see enough of these days in the 
Senate. Time and time again, amendments were offered and motions were 
made in order to derail this bill, yet time and time again, our strong 
bipartisan coalition stuck together to fend off every single attack. As 
a result, we're able to pass comprehensive immigration reform--reform 
that has a real chance of solving the immigration crisis that we face 
today.
  The bill addresses what I consider to be the four cornerstones of 
successful immigration reform: (1) strengthening our Nation's borders; 
(2) providing a path to legalization for the approximately 11 million 
undocumented workers currently living and working in the United States; 
(3) addressing future flow needs by adjusting visa caps and creating an 
effective guestworker program with strong labor protections; and (4) 
implementing a reliable employment verification program. Thus, not only 
will this bill prevent people from illegally crossing our borders, it 
will eliminate incentive for coming illegally in the first place.
  I am particularly happy that the bill included an amendment I offered 
to strengthen our border security. My amendment increases the number of 
border patrol agents by an additional 1,000 this year, bringing the 
total number of agents in fiscal year 2006 to 3,000. It also gives 
border State Governors the ability to request up to 1,000 more border 
patrol agents from the Secretary of Homeland Security in times of 
international border emergencies. We need more agents on the border, 
and we need to make sure they have the tools to get the job done. That 
is why my amendment provides more helicopters, power boats, patrol 
vehicles, GPS devices, encrypted 2-way radios, night vision equipment, 
high-quality border armor; and reliable and effective weapons.
  The bill also includes my amendment to the performing artist visa, 
which will ensure that international artists will have their visa 
petitions processed in a timely manner. U.S. Citizenship and 
Immigration Services, USCIS, delays are making it increasingly 
difficult for international artists to appear in the United States. 
Currently nonprofit arts organizations confront uncertainty in gaining 
approval for visa petitions for foreign guest artists and inconsistent 
policies in processing artist visa petitions which result in delays, 
expense, and unwarranted requests for further evidence. USCIS practice 
compounds the growing risk that foreign guest artists will be unable to 
enter the U.S. in time for their engagements, causing financial burdens 
on nonprofit arts organizations, and potentially denying the American 
public the opportunity to experience international artistry due to 
delays and cancellations. My amendment requires the UCIS to review 
these visa

[[Page S5180]]

applications in a timely fashion--and consistent with protocols that 
ensure our security would never be compromised.
  Of course, the bill contains some things that I do not agree with. 
For example, I would prefer that the bill not include Senator Inhofe's 
English language amendment not because I do not believe that English 
should be our national language but because I think the amendment will 
have some unintended, negative consequences. I believe everyone who 
aspires to be a part of our country should learn English. I was proud 
to support Senator Salazar's amendment declaring English is our common 
language. Yet I felt compelled to oppose Senator Inhofe's amendment 
because it would prevent critical services--including health, public 
safety, or education services--from being provided in more than one 
language. I believe that in some instances it may be important for the 
government to communicate in a language other than English.
  However, I accept these provisions as part of the compromise. Take 
the temporary worker provisions, for example. They represent a true 
compromise between the need to protect American workers and the need to 
meet the future labor demands of the U.S. marketplace. Thus, the bill 
allows a certain number of temporary workers into the country every 
year, but only after the employers seeking to hire them have made 
serious efforts to hire an American worker. The bill also includes 
significant labor protections to ensure that temporary workers receive 
the same wages, benefits, and working conditions as similarly-employed 
U.S. workers. Thus, the bill does everything possible to prevent 
temporary workers from becoming a secondary class of citizens or from 
depressing American worker wages.
  Passing this immigration bill is just the first step. The House 
passed a punitive, enforcement-only immigration bill that I believe 
will exacerbate rather than ameliorate the immigration crisis. The 
House bill sparked protests across the country. Millions of people took 
to the streets to call for a comprehensive and humane approach to 
immigration reform. I hope that the House has heeded their calls. I 
hope that the President can rally support for a comprehensive solution. 
And I sincerely hope that the conference comes back with a bill I can 
support.
  Mr. BAUCUS. Mr. President, I rise today to commend the Senate for 
accepting my amendment to the Immigration Reform Bill which addresses 
an area that needs more attention--the northern border of the United 
States. We have 5,526 miles of border between the United States and 
Canada. This is over double the size of our southern border. Along 
Montana's 560-mile portion of the border we have remote terrain which 
is mountainous and difficult to patrol. My amendment will help our 
Border Patrol cover this vast area by requiring the Department of 
Homeland Security to conduct a pilot program using unmanned aerial 
vehicles along the northern border.
  In his immigration speech last week, President Bush emphasized that 
in addition to personnel and training we must also employ the latest 
technologies. The Border Patrol has already conducted successful tests 
using UAVs along the southwestern border in Arizona. This was done for 
surveillance and detection of individuals attempting to enter the U.S. 
illegally. My amendment requires that some of the UAVs already in the 
bill be used to run a pilot program on the northern border similar to 
the program which was conducted on the southern border.
  We don't want to compete with our friends along the U.S. border with 
Mexico, but I want to make it clear that the northern border also needs 
increased attention. As you can imagine, as the southern border of the 
U.S. is tightened, our northern border--which used to be America's back 
door--is quickly becoming the front door.
  Customs and Border Patrol reports that their number one concern on 
the southern border is illegal immigration. What is their number one 
concern on the northern border? Terrorism. We are all aware that some 
of the 9/11 highjackers made their way into this country through 
Canada. In 1999 the ``Millennium Bomber'', Ahmed Ressam, was 
apprehended on the northern border with a trunk full of explosives. His 
plan was to blow up Los Angeles International Airport. Now border gangs 
are going international and admitting having ties to Al-Qaeda and 
smuggling Al-Qaeda members into the United States. In Montana markings 
from these gangs have been found in the corrections system--within the 
walls of our jails and detention facilities.
  Surveillance of our ports is being conducted from the Canadian side 
of the border. It appears that our procedures for checking out vehicles 
both leaving and entering the United States are being looked at by 
criminals and it has been reported that these ``dry runs'' are being 
conducted near Glacier National Park.
  All of these activities are made easy due to the wide open space and 
insufficient numbers of law enforcement along the border. Yet the bill 
that has been before us has many provisions which are stacked against 
the security of the northern border. For example, one provision in this 
bill provides border States with additional Immigration and Customs 
Enforcement field agents to help with necessary background checks. 
However, it stipulates that these allocations are not available to 
States with populations under two million. This makes northern border 
States Montana, North Dakota, Idaho, Alaska, Vermont, New Hampshire, 
and Maine ineligible for assistance.
  Now the President has proposed sending our National Guard troops to 
the southern border. We rely greatly on our National Guard and at a 
time they are already stretched too thin, it is dangerous for us to 
lose that resource from our States. More importantly, this is being 
done at a time when we currently have border patrol agents being 
detailed from the northern border to the southern border.
  The ability of our Border Patrol to successfully carry out their 
daily duties is of critical importance to the safety of all Americans. 
This amendment will give us the tools we need to protect our borders. 
UAVs are a safe alternative to placing civilians in harm's way and by 
introducing a pilot program that helps us patrol our northern border, 
we are getting on the right track to fighting the war on terrorism and 
keeping the home front safe.
  Mr. BROWNBACK. Mr. President, I wish to speak to the very important 
issue of interior worksite enforcement in the context of the debate 
over comprehensive immigration reform legislation.
  One of the most important elements of this bill, that is crucial to 
the successful implementation of the guest worker and earned 
legalization programs, is interior worksite enforcement. Only a serious 
commitment to enforcing our immigration laws against employers who 
knowingly hire illegal immigrants will actually deter illegal 
immigration because the number one reason people enter the United 
States illegally is to find a job.
  Looking back on the history of immigration reform, one of the key 
elements that has been missing, and is still missing, is successful 
interior enforcement. However, thanks to hard work of Senators 
Grassley, Obama, Kennedy, and Baucus, this bill contains worksite 
enforcement that can work.
  The original language in the underlying bill, S. 2611, concerned me 
in several ways, particularly with respect to certain contractor 
liability provisions that would have created a de facto ``rebuttable 
presumption'' for contractors whose subcontractors hired undocumented 
immigrants, even if the principal contractor had no knowledge of such 
hiring. In essence, the contractors would be guilty until proven 
innocent, even if the offense of hiring unauthorized workers was 
committed without their direct knowledge.
  Before I continue, let me be clear--I am in full support of cracking 
down on employers who knowingly hire unauthorized workers because doing 
so is the key to having a lawful and successful immigration system. 
However, we should not cast the net so broadly that innocent 
contractors are punished for the independent actions of a 
subcontractor.
  It is somewhat clear that the contractor liability provisions in the 
underlying bill were targeted at ``bad actor'' construction 
contractors, but I interpret the legislation to impact all employers, 
not just those in construction. In fact, any employer using suppliers 
or contractors involving labor in

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the normal course of their operations are impacted. A broad 
interpretation of the language covers companies that contract with, for 
example, suppliers of refreshments, including beverage companies that 
supply coffee, sodas and bottled water. What about the suppliers of 
copier services that come to fix the copy machine? Certainly they are 
suppliers of contracts involving labor. Can all companies contracting 
for such labor be responsible for ensuring that all of its suppliers 
employ persons of legal status? Such a requirement is unrealistic and 
unfairly penalizes employers.
  There exists somewhat of a defense for these companies, a ``knowing'' 
standard, but what concerned me most was how a company could defend 
itself against accusations that it knew that its supplier employed 
illegal immigrants.
  With the understanding that the original language applied to all 
employers, the construction industry nevertheless represents a good 
example of how unworkable these provisions are. The construction 
industry is a system which includes general or prime contractors with 
subcontractors ranging from plumbing to roofing to electrical specialty 
contractors. On any given project, a general contractor may have 
contractual relationships with as many as 50 different subcontractors. 
Ensuring that these prime contractors are not liable for the 
independent, illicit behavior of one or more of the subcontractors was 
the focus of my amendment.
  I was also troubled by the original language, which involved a 
presumption of guilt before the company was able to prove its 
innocence.
  Therefore, in effort to correct these dangerous provisions, I offered 
amendment number 4096 which would protect employers from being liable 
for the illegal behavior of their suppliers and subcontractors. This 
amendment resembled one that was offered during the consideration of 
H.R. 4437, the Border Protection, Antiterrorism, and Illegal 
Immigration Control Act, legislation that focused on securing the 
border and increased internal enforcement. Offering this amendment was 
freshman congressman, Lynn Westmoreland of Georgia's 8th district. I 
should point out that when the House debated immigration legislation in 
December 2005, Westmoreland's amendment was so popular that it received 
more votes of support than that on final passage of the legislation.
  Though the language in the Grassley title III amendment does not 
include the language in my amendment, Senator Grassley's amendment is 
much more reasonable than the provisions in the underlying bill. 
Senator Grassley's amendment replaces the ``guilty until proven 
innocent'' rebuttable presumption with a standard of ``knowing or with 
reckless disregard,'' which goes a long way to protect innocent 
contractors from being held liable for actions of a subcontractor that 
are out of their control.
  In closing, I respectfully request that the House-Senate conferees 
pay careful attention to the provisions in both the House and Senate 
regarding unlawful employment of aliens. I hope the conferees will 
engage in a discussion regarding the differences between the various 
standards for holding contractors liable for the actions of their 
subcontractors. I understand that there exists ample case law regarding 
the definitions of these terms, yet I ask that the conferees further 
define these terms for the sake of employers who will quickly be 
required to abide by the new provisions under this bill.
  In addition, it is important for the conferees to clarify how the 
Electronic Employment Verification System will communicate with 
contractors regarding the hiring practices of their subcontractors. 
This relationship is yet unclear as the bill is currently written and 
should be clarified before the bill becomes law.
  I reiterate my wholehearted support for a strict worksite enforcement 
system that cracks down on ``bad actor'' employers who thumb their nose 
at the law by knowingly hiring unauthorized workers. These employers 
should be punished for their actions; however, they should not be 
punished for actions taken by their subcontractors without their direct 
knowledge.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. REID. Mr. President, I will use leader time so as not to 
interfere with the schedule on the floor.
  I said at the beginning of this debate 2 weeks ago that this was a 
blockbuster. I said that this is the summer season for movies and this 
is the time for blockbuster movies. ``The DaVinci Code'' and ``Mission 
Impossible III'' came out, but I said we had our own blockbuster here 
in the Senate: part 2 of immigration. Prior to the Easter recess we 
know how immigration fared. It didn't. It stopped for a lot of 
different reasons. But now we start part 2. I said that 2 weeks ago, 
and now for me, this has been such a reminder of how the Senate used to 
be. We held a number of votes. I was on the prevailing side of some and 
I was not on the prevailing side of others. Coalitions were built here 
in the Senate, Democrats with Republicans and vice versa. That is the 
way we used to legislate.
  In this most important bill, no one got everything they wanted. There 
were compromises made in the committee and certainly compromises made 
here on the Senate floor. But we have had bipartisan cooperation. This 
is comprehensive immigration reform, focusing first on border security.
  This legislation will do so much to make our borders more secure. We 
have done a lot of things that have never been tried before to improve 
the security of our Nation by doing something about our borders. I have 
gone to the borders and I have seen the hard-working Border Patrolmen. 
They work so hard with so little attention. And this legislation is the 
opportunity for them to do their jobs better, because we are going to 
give them more resources. I would hope that we will do that. We 
certainly need to.
  Before we finish, I would caution everyone from confusing what we are 
doing here today--we are going to complete passage of this bill 
shortly--with ultimate victory. This is not the final scene of this 
blockbuster that we have on the Senate floor. There is another act to 
go. But I want to express my appreciation to the two managers, Senator 
Specter and Senator Kennedy. They have done yeomen's work to sort 
through all of the hurt feelings that people have in offering these 
amendments and not getting the votes they wanted when they wanted them. 
This is a big bill to manage, and I think these two very senior Members 
of the Senate have done a tremendous job. I also want to express my 
appreciation to Senator McCain.
  I also want to focus attention on someone who I think has done a 
great job on this bill, who is behind the scenes always trying to grow 
the compromises that the managers and Senator McCain haven't been able 
to work out, and that is the senior Senator from South Carolina, 
Lindsey Graham. I really have appreciated the work he has done on this 
bill. He has been a tremendous asset to Senator Kennedy, Senator 
Specter, and Senator McCain.
  I want to also say that my assistant whip of the Senate has done a 
great job. We all know that Senator Durbin legislates so much with his 
heart. He is a good person and has a good sense of what is right and 
what is wrong. He was heavily involved in this legislation, being a 
member of the Judiciary Committee, and I want the Record spread with my 
appreciation for the work that he has done, being our counterpart to 
Lindsey Graham, working through different issues that we have had.
  For all of the good that we are going to be able to accomplish by 
passing this bill, there is a lot more work to do.
  I want to say something about someone who opposes this legislation. 
No one has been a bigger opponent of this legislation than Jeff 
Sessions of Alabama. If there has been a bigger opponent, I haven't 
seen him. I have told him this personally and I will say it publicly. 
Jeff Sessions and I don't agree on too much politically, in the 
political spectrum, but I admire how he approaches issues, because 
every time he came to the floor to talk about an issue, he believed 
sincerely what he was doing was right, and I admire that and appreciate 
it. Now, the fact that I disagreed with him doesn't make me any more 
right than he is. That is the purpose of legislation. We present our 
cases to this body and the body decides. But I want the Senator from 
Alabama to know that I appreciate his adversarial efforts.

[[Page S5182]]

  Finally, Mr. President, for all the good work that we have done here 
over the past 2 weeks, it can be eliminated in a heartbeat when we go 
to conference with the House. We have seen it happen so much these last 
few years where the minority is eliminated from decisions made, public 
conferences are not held, items that the Senate supports are stripped, 
and there is nothing to prevent the same thing from happening on this 
bill but for the good faith we have in moving forward.
  We should know the dark clouds are forming on the horizon. 
Influential Members of the House of Representatives in the Republican 
leadership are still pushing for the bill they passed, a bill that 
makes felons out of millions of immigrants and those who assist them, 
such as a member of the clergy, a health care worker, a social worker. 
In fact, the House Majority Leader, my friend, John Boehner, yesterday, 
was quoted as saying:

       Trying to find a pathway that is acceptable to the House 
     and Senate is going to be very difficult.

  I acknowledge and say that is true. But the words we have heard from 
the House leadership are not encouraging.
  The one thing we fought for was to have a fair balance on the 
conference committee, and we have gotten that. I express my 
appreciation to the majority leader. We have the ability to name 
conferees on our side who I think are going to be just fine. Knowing 
the Republicans who are going to be part of this conference committee, 
it is going to work out well. We have people who are going to work hard 
to uphold the position of the Senate.
  But we also need the active involvement of the President. I 
appreciate what he has done to this point. I said that on a number of 
occasions before. But his biggest work is ahead of him if he wants 
comprehensive immigration reform.
  Yes, this bill includes border security. It includes help for guest 
workers. Mr. President, 45,000 to 50,000 hotel rooms are going to be 
built in Las Vegas in the next 4 to 5 years. I just had a meeting in my 
office with the head of the MGM Hotel, a man who has 80,000, 90,000 
employees and was part of the group who got me interested in this 
legislation. The hotel owners, the Chamber of Commerce in Las Vegas, 
and the unions have said unless we get some help on guest worker 
programs, we can't find people to work in those 45,000 to 50,000 hotel 
rooms. That is in this bill.
  Another thing that is in it I am proud of, and we should be proud of, 
is a pathway to legalization for people who are in America and are 
undocumented: Pay your taxes, have a job, learn English, stay out of 
trouble, pay your penalties and fines, go to the back of the line--but 
you can come out of the shadows.
  Then, finally, what we have in this legislation is better--better 
employer sanction enforcement, and we need that.
  We are authorizing things, but they are not worth anything unless we 
appropriate the money to do them. All the measures we have relating to 
security, they must be favored with appropriations bills, as with 
everything else in this bill. I hope we will have the carry-through to 
do that. This is a two-step process from this point forward. We have to 
have a conference and then we have to have appropriators who will do 
the right thing.
  Again, I feel so good today. This is what the Senate is all about. I 
spent 24 years of my life in the Congress of the United States, 20 of 
them here in the Senate. This is the way it used to be. This is the way 
it should be in the future. I have every hope and belief that we can 
make it that way.
  I appreciate the courtesy of all my colleagues here allowing me to 
have this time.
  The PRESIDING OFFICER (Mr. Coleman). Two minutes remain in opposition 
to the Ensign amendment. Who yields time? The Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the votes 
occur in the order in which the amendments were offered, provided 
further that following the disposition of amendments, the Senate 
proceed to an immediate vote on the managers' amendment. I also ask 
that there be 2 minutes equally divided between the votes and that all 
votes after the first be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. ENZI. Reserving the right to object, Mr. President, from what I 
understand we just got the managers' amendment. It is 115 pages. I 
think the Senator from Arizona is one of the first ones to acknowledge 
getting a managers' amendment with 115 pages, and then agreeing to a 
time agreement would be a little unreasonable. So if you would take out 
the agreement to have a vote directly on the managers' amendment until 
we have a little bit of time to go through it, I think the unanimous 
consent would be agreeable.
  Mr. SPECTER. I modify the unanimous consent request to that effect.
  The PRESIDING OFFICER. Is there objection to the modified request? 
Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I now ask unanimous consent Senator 
McCain be recognized for 7 minutes, the managers be recognized for 7 
minutes, and the leader will speak at the conclusion on leader time.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Arizona.
  Mr. McCAIN. Mr. President, after several weeks of extensive debate 
and consideration of numerous and complicated amendments, the Senate is 
about to move to final passage of S. 2611, the Comprehensive 
Immigration Reform Act. This legislation addresses comprehensively one 
of the most important and complex issues facing our country. Our 
Nation's immigration system is broken. I don't think there was one 
Member of the Senate to argue that fact. Without enactment of 
comprehensive immigration reform as provided for under this bill, our 
Nation's security will remain vulnerable.
  That is why we must pass this bill and reach a meaningful final 
product through conference deliberations. Our failure to produce a 
final comprehensive measure is an unacceptable proposition.
  I want to first thank the President for his leadership on this issue. 
The President's speech to the Nation last week, which I thought was 
inspired, was greeted by 74 percent of the American people overnight 
favorably, including his absolute determination to see the Congress 
send him a bill which has a comprehensive approach to the issue which 
we as a Congress and a Federal Government have ignored for too long.
  I also commend the Senate leadership on both sides of the aisle for 
their efforts to ensure that the Senate address this important issue 
and give us more than adequate time for a thorough debate.
  I think this is a proud moment for the Senate, as we have conducted 
good work and returned to orderly traditions of the legislative process 
as envisioned by our Founding Fathers.

  I also again recognize Chairman Specter for his work in leading us to 
this point in the legislative process. He and all the members of the 
Judiciary Committee deserve our appreciation for the considerable 
effort they have taken on this issue during this Congress.
  Of course, I commend Senator Kennedy, who is perhaps the leading 
expert on this difficult issue. He and I spent many months working to 
develop a comprehensive, reasonable, workable legislative proposal, 
much of which is contained in the bill before us.
  I also thank Senators Brownback and Lieberman and Graham and Salazar, 
Martinez, Obama and DeWine for their shared commitment to this issue, 
in working to ensure this bill moves successfully intact through the 
legislative process.
  Throughout this debate we were reminded that immigration is a 
national security issue, and it is. It is also a matter of life and 
death for many living along the border. We have hundreds of people 
flowing across our borders every day, coming here only in search of 
better lives for themselves and their families. They come to fill the 
vacant jobs at businesses and farms that struggle with real labor 
shortages that impact our economy negatively.
  This Nation is calling for our borders to be secure, for an overhaul 
of our immigration system, and that it be done in a humane and 
comprehensive fashion. Vote after vote after vote taken in this body 
reaffirms that fact.

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  The new policies as provided for in this legislation will increase 
border security and provide for a new temporary worker program to 
enable foreign workers to work legally in this country when there are 
jobs that Americans will not fill, and will acknowledge and address in 
a humanitarian and compassionate way the current undocumented 
population.
  As many have noted, there are over 11 million people in America today 
who came here illegally. They live in our cities and towns and rural 
communities. They harvest our crops, tend our gardens, work in our 
restaurants, and clean our houses. They came as others before them 
came, to grasp the lowest rung of the American ladder of opportunity, 
to work the jobs others won't, and by virtue of their own industry and 
dreams to rise and build better lives for their families and a better 
America.
  Some Americans believe we must find all these millions, round them 
up, and send them back to the country they came from. I don't know how 
you do that, and I don't know why you would want to. Yes, in this post-
9/11 era America must enforce its borders. There are people who wish to 
come here to do us harm, and we must vigilantly guard against them, 
spend whatever it takes, devote as much manpower to the task as 
necessary. But we must also find some way to separate those who have 
come here for the same reasons every immigrant has come here from those 
who are driven here by their hate for us and our ideals.
  We must concentrate our resources on the latter and persuade the 
former to come out from the shadows. We won't be able to persuade them 
if all we offer is a guarded escort back to the place of hopelessness 
and injustice that they have fled.
  Why not say to those undocumented workers who are working the jobs 
the rest of us refuse: Come out from the shadows, earn your citizenship 
in this country. You broke the law to come here, so you must go to the 
back of the line, pay a fine, stay employed, learn our language, pay 
your taxes, obey our laws, and earn the right to be an American.
  SSgt Riayen Tejada immigrated to New York from the Dominican 
Republic. He came with two dreams, he said, to become an American 
citizen and to serve in the U.S. Marine Corps. He willingly accepted 
the obligations of American citizenship before he possessed all the 
rights of an American. Staff Sergeant Tejada, from Washington Heights 
by way of the Dominican Republic, father of two young daughters, died 
in an ambush on May 14, 2004. He had never fulfilled his first dream, 
to become a naturalized American citizen. But he loved this country so 
much that he gave his life to defend her.
  Right now, at this very moment, there are fighting for us in Iraq and 
Afghanistan soldiers whose parents are not yet American citizens but 
who have dreamed the dream that their sons and daughters risked their 
lives to defend. They should make us proud to be Americans. These 
people have come for the very same reason immigrants have always come 
to America. They came to grasp the lowest rung of the ladder, and they 
intend to rise. Let them rise. Let them rise. We will be better for it.
  For America--blessed, bountiful, beautiful America--is still the land 
of hope and opportunity, the land of the immigrant's dreams. Long may 
she remain so.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, when Oscar Handlin, the eminent historian 
at Harvard, won the Pulitzer Prize in 1952 for his history of 
immigration ``The Uprooted,'' he said he had set out to write a history 
of immigrants in America, but ``discovered that the immigrants were 
America.''
  With passage of this legislation, we reclaim that America. We lift 
once again the lamp beside the golden door.
  This is the most far-reaching immigration reform in our history. It 
is a comprehensive and realistic attempt to solve the real-world 
problems that have festered for too long in our broken immigration 
system.
  It strengthens our security and reflects our humanity. It is intended 
to keep out those who would harm us and welcome those who contribute to 
our country. It has the potential to build a stronger, better, fairer 
America for the 21st century.
  It protects our security through stricter enforcement, tamper-proof 
immigration cards, and high-tech border controls.
  It protects American jobs and wages by bringing immigrants out of the 
shadows and requiring employers to pay fair American wages.
  And it enables decent men and women who work hard and play by the 
rules to earn the privilege of American citizenship.
  That has been America's story. And it's a story we must live anew 
with each new generation if we hope to continue as a vibrant land of 
liberty, progress and opportunity--a land of people who want to do 
better, who love their families, embrace our Nation, and are proud to 
be American citizens.
  Wisdom in immigration policy doesn't just happen. It is a choice 
between a future of progress as a nation of immigrants or a future 
defined by high walls and long fences.
  Clearly, we still have much to do before this legislation becomes the 
new law of the land. Some believe that enforcement is the only path to 
take.
  I would urge them to remember that from the beginning to the present 
day, immigrants helped build our country, and made us strong.
  They worked in our factories and toiled in our fields, and we are 
stronger for it.
  They built the railroads that took America to the West. Even today, 
it is said that under every railroad tie, an Irishman is buried.
  Immigrants have loved America and fought under our flag, and we are 
stronger for it.
  And if we enact this bipartisan comprehensive reform, we will be 
stronger for it too.
  As we close this debate, I commend our two leaders, Senator Frist and 
Senator Reid, for their skill in enabling this debate to take place. At 
a time of heated political division in Congress, the debate we have 
seen these past 2 weeks is unique in recent times. Senators of both 
parties have come together for the common good. This opportunity would 
not have been possible without our leaders, and I hope it is a 
precedent for other major issues in the weeks ahead.
  I commend President Bush for putting this issue before the country 
and for helping Americans understand the need for comprehensive reform.
  I commend the chairman and ranking member of our Judiciary Committee, 
Senator Specter and Senator Leahy, for their strong support throughout 
this process.
  I thank those of our bipartisan group who stood together to make this 
legislation possible--Senator Graham, Senator Salazar, Senator 
Martinez, Senator Hagel, Senator Durbin, Senator Lieberman, Senator 
Brownback, Senator Obama, and Senator DeWine.
  And most of all, I express my appreciation to my colleague, Senator 
McCain, who made all this possible from the start. He'd probably prefer 
I didn't say this, but he's been a profile in courage once again, and I 
commend him for his leadership.
  I'm also grateful to the many staff members who helped to get us to 
this point. I'm grateful to Ron Weich and Serena Hoy of Senator Reid's 
staff; to Bruce Cohen, Tara Magner and Matt Virkstis of Senator Leahy's 
staff; to Joe Zogby of Senator Durbin's staff; to Jennifer Duck and 
Montserrat Miller of Senator Feinstein's staff; to Felicia Escobar of 
Senator Salazar's staff; to Tom Klouda and Alan Cohen of Senator 
Baucus' staff; to Kevin Landy of Senator Lieberman's staff; to Danny 
Sepulveda of Senator Obama's staff; and to Chris Schloesser of Senator 
Menendez' staff.
  This was a truly bipartisan effort, and I'm grateful to staff from 
the other side of the aisle as well: Juria Jones, Joe Jacqot, and 
Michael O'Neill of Senator Specter's staff; to Clay Deatherage, Brian 
Walsh, and Nilda Pedrosa of Senator Martinez' staff; to Jill Konz and 
Steve Taylor of Senator Hagel's staff; to Matt Rimkunas of Senator 
Graham's staff; to Steve Robinson of Senator Grassley's staff; to Ajit 
Pai and Bryan Clark of Senator Brownback's staff; and to Brook Roberts 
of Senator Craig's staff.
  And special thanks, of course, to Senator McCain's staff, with whom 
we've

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worked so closely over the past year--Ann Begeman and Brook Sikora. And 
I'd like to express my deep appreciation for Becky Jensen. Without her 
vision and determination, this bill would never have happened.
  On my own staff, I'm very very grateful to the many who worked so 
long and hard as well to make this day possible--Jeffrey Teitz, James 
Flug, James Walsh, Laura Capps, Missy Rohrbach, Lauren McGarity, Guarav 
Laroia, Charlotte Burrows, Christine Leonard, and Michael Myers.
  My special thanks go to two on my staff who worked so hard over so 
many months on this bill, Janice Kaguyutan and Marc Rosenblum.
  Finally, and certainly not least, there's our hero of the hour--a 
remarkable person with extraordinary talent, skill and compassion. 
We've all come to rely on her knowledge and judgment in moving this 
bill forward--Esther Olavarria.
  Some say the easy part of this debate is over, and now we face the 
hard part reconciling the Senate bill with the House bill. We'll do our 
best, and I'm optimistic we can resolve our differences again.
  Mr. SPECTER. Mr. President, the U.S. Senate is on the verge of 
passing landmark legislation. It has had a long, tortuous path. The 
McCain-Kennedy bill was the core proposition and went through very 
substantial hearings in the Judiciary Committee and a complex markup. 
It came to the floor at a moment when it was foundering, and we added 
to it Hagel-Martinez and their ideas to break a very complex logjam at 
that time.
  We have labored under the competing principles of rule of law and 
concern for immigrants who have come to the United States without 
complying with the law.
  On the other side, the rich tradition of the formation and 
development of the greatest country in the history of the world, the 
United States of America, made up of immigrants. Some came here 
illegally and some did not. But we are the melting pot, and the 
immigrants have contributed enormously and have made this the great 
country which it is today.
  As we approach the final moments of action in the Senate, we are 
aware that there are still very strident competing concerns, strident 
competing interests of those who continue to insist that our 
legislation is amnesty, contrasted with those of us who point to the 
facts. The definition of amnesty is forgiveness of some wrongdoing, 
which is not the case.
  There is a rigorous ladder which these undocumented immigrants have 
to pass through. They have to pay a fine, and that $2,000 fine in the 
underlying bill has now been increased to $3,250. They have to undergo 
a criminal background check, they have to pay back taxes, they have to 
learn English, they have to work for 6 years, and they go to the back 
of the line. It is genuinely earned citizenship by any measure.
  We have had a very constructive debate here. We have improved the 
bill. The bill has been improved not only by the bipartisan coalition 
in favor of it, but it has been improved by the critics.
  In committee we had a very rigorous debate. Objections were raised by 
Senator Kyl, by Senator Coburn, and by Senator Sessions. Their concerns 
have been taken into account in structuring the final product which we 
have.
  There has been a real balance for those who say that there ought to 
be border security before we consider a guest worker program or before 
we consider placing undocumented immigrants on the path to citizenship. 
We have provided very rigorous border safeguards.
  We have provided for enforceable employer sanctions to see to it that 
immigrants who do not qualify do not get jobs. There has been a 
reduction in the number of green cards, 325,000 to 200,000. We have 
made major concessions to those who have been looking for enforcement 
by itself.
  At the same time, we have structured a complex arrangement giving 
those here 5 years or more of the path to citizenship. We made a 
distinction based upon how deep their roots were here. Those who were 
here 5 years or more have an easier path, although they go to the back 
of the line. Those here 2 to 5 years have to touch back before coming 
back to a guest worker program and then on the path to citizenship. 
Those here for less than 2 years have to return to their native country 
and get in line if they want to come back to the United States.
  That cutoff was made on January 7, 2004, the date the President made 
a speech outlining immigration reform. So they were on notice that they 
would be in a different category.
  This is a practical approach. When we have 11 million people who are 
undocumented immigrants, we obviously do not want to create a fugitive 
class in America--an underclass.
  If anybody has a better idea, we have been open to it, and we are 
still open to it as this bill will go to conference.
  I am not pessimistic about the prospects of the conference. We have a 
bicameral legislature. We have to have agreement between both the House 
and the Senate. There is a genius in the American constitutional form 
of government in the separation of powers. No one has too much power.
  We have worked out differences in the past, complicated problems on 
the PATRIOT Act, complicated problems on other legislation where we 
have gone to conference with the House Judiciary Committee under the 
able leadership of Chairman Sensenbrenner.
  We have had the leadership of the President on his nationwide speech 
at a critical moment in the progress of their bill. The President has 
been commended by all of those who have been in the leadership role on 
this bill.
  We look forward to the President's more intense participation. He is 
the leader.
  We have the House and Senate controlled by the Republican Party. 
There is an important political issue about the ability of Republicans 
to govern and whether we can do that. There is an election in November. 
Our leadership position as Republicans is on the line. I think that 
will weigh heavily in the conference.
  But most of all, I credit the bipartisan nature of what has been 
done.
  Every morning during the course of the 2 weeks of debate a group of 
Senators met, Democrats and Republicans, to work through the issues and 
to be prepared for the debate of the day. I am pleased to see the 
complex issues debated in the best traditions of the Senate.
  I look forward to a productive, constructive and successful 
conference with the House of Representatives, and ultimately a day when 
there will be a signing by the President of the United States of this 
important landmark legislation.
  I yield the floor.
  We are awaiting the arrival of the majority leader who should be here 
momentarily.
  Mr. DODD. Mr. President, will the manager withhold?
  Mr. President, I rise today to share my views on the work that the 
Senate has undertaken over the last several weeks on a very difficult 
and complex issue--comprehensive immigration reform. Before I start, I 
would like to acknowledge the work of many of my colleagues, who have 
spent years attempting to address various aspects of this issue and who 
have worked in good faith to get us to the place we find ourselves as 
we conclude debate on the legislation before us.
  Last month when the Senate first began consideration of this matter, 
the process fell apart rather suddenly because of procedural issues 
regarding which and how many amendments would be offered. These were 
legitimate concerns, since nearly 400 amendments were introduced, and 
since many of those amendments were intended to gut that measure.
  In order to get this reform right, we need to address all three 
components of immigration--border security and enforcement, guest 
worker programs and, for undocumented workers who are currently in the 
U.S., a path to ``earned'' citizenship. We need to also reconcile the 
fact that we are nation of immigrants with ongoing legitimate economic, 
social and national security concerns related to the undocumented 
individuals currently within our borders and the impact of continuing 
to welcome newcomers to our Nation has on those concerns.
  But let me be clear from the outset. Immigration reform must first 
and foremost be about protecting America's national security, economy, 
and citizens from the myriad challenges we face in the 21st century. We 
must have

[[Page S5185]]

no higher priorities than these. Fundamentally protecting our national 
security means securing our borders.
  I believe that the bill before us, with all the additions we have 
made as the Senate has worked its will on this measure, is an imperfect 
document, but probably the best we are going to achieve given the 
polarizing nature of many of the issues that have been debated, adopted 
and rejected.
  On a positive note, the bill does set the stage for the United States 
to greatly increase control over our borders and help prevent 
individuals from illegally entering our country. Among other things, it 
would provide advanced border security technologies to assist those 
tasked with protecting our borders. And it would improve our ability to 
enforce our immigration laws by making structural reforms and 
increasing personnel and funding levels where they are needed most. It 
would also double the size of the border patrol over 5 years, adding 
12,000 new agents to patrol our borders. It would expand the number of 
interior enforcement officers by 1,000 per year over each of the next 5 
years. It would utilize advanced technologies to improve surveillance 
along the border, creating a ``virtual fence'' to detect and apprehend 
people who are illegally attempting to enter this country. And it would 
create new and increased penalties for individuals trying to subvert 
our borders with tunnels, or who attempt to smuggle people into the 
U.S.
  These are all critical measures. I support them. Other measures 
adopted in the name of better controlling our borders, will in my view 
have less than optimum results. I am thinking of the vote that occurred 
last week to unilaterally construct a 370-mile fence in border areas in 
California and Arizona. I believe that no fence or wall or other 
barrier is going to stop desperate people from entering our country 
unless we do something about the conditions on the other side of the 
border and the historic unwillingness of Mexican authorities to take 
steps to dissuade its citizens from illegally crossing the border. That 
is why I opposed this initiative and have sought to strengthen the 
likelihood that we will get more rather than less cooperation from 
Mexican authorities by proposing an amendment to require advance 
consultations at the federal, state and local levels of government on 
both sides of the border before fence construction moves forward. I am 
grateful to the managers for their willingness to accept this 
amendment.

  Securing our borders, while necessary is only one part of the bigger 
immigration equation. Were we to deal with that issue, while ignoring 
two other goals--bringing 11 to 12 million undocumented workers out of 
the shadows, and putting in place limited and carefully regulated guest 
worker programs to fill jobs when no Americans are available or willing 
to take them, we would not have fundamentally confronted the national 
security implications of immigration. In my view, turning our backs on 
this reality is the same as turning our backs on real and lasting 
immigration reform.
  I would say the following with respect to the 11 to 12 million 
undocumented individuals living within our borders.
  These are predominantly hardworking individuals, who are not here to 
flood the welfare rolls or collect our charity. They are here to work 
and to contribute. They want what all of our families wanted when they 
came to the U.S.--a piece of the American dream.
  However, I understand the concerns of those who rightly state that 
these undocumented workers came here illegally. The pending bill 
recognizes that fact. And so it wouldn't give them a free ride. 
Instead, it would penalize illegal immigrants by requiring undocumented 
workers to pay fines. It would require them to pay all back taxes, 
submit themselves to background checks, and learn English. And for 
those who are eligible, this process would take an average of 11 years.
  Yet even with these tough measures, it provides an incentive for 
undocumented workers to come out into the open. Frankly, we need to be 
honest with ourselves that they're not going to come out of the 
woodwork if they face deportation. No rational person would do that.
  Why is getting them to come out into the open so important?
  Because the presence of so many individuals without documentation in 
our country creates enormous challenges for law enforcement and 
undermines worker protections. It is bad for our security, bad for the 
American worker, and bad for undocumented immigrants themselves.
  But not all people seek to come permanently to the U.S. Many seek 
temporary work here and desire to return home when that work is 
complete. The pending proposal contains extensive provisions related to 
guest workers.
  There are legitimate concerns that temporary workers might displace 
American workers who are available and willing to take a job. That 
should never be the case. American jobs should always be filled first 
and foremost with American workers. Only after serious efforts to find 
American applicants to fill vacancies have been exhausted are guest 
worker programs justifiable. Much has been done in the course of 
consideration of this legislation to ensure more due diligence on the 
part of employers to look first to Americans to fill jobs.
  Moreover, we need to be judicious when it comes to determining the 
number of guest worker visas that are needed. This shouldn't be 
an excessively high number that increases automatically every year. 
Instead, it should match actual needs. That's why I supported a number 
of amendments by my colleagues to place certain caps on the number of 
guest worker visas that are granted. As I've already said, the numbers 
of visas should match needs. If at any point in the future the U.S. 
government determines that needs aren't being met, then we can always 
change the numbers to reflect the facts on the ground. But we need to 
turn to American workers first, not foreign workers.

  Some of my other concerns with the outlines of the guest worker 
programs have been addressed in the course of our consideration of the 
bill. Worker portability and the right to unionize were key 
deficiencies that have been remedied during the amendment process. 
These fixes were important, because if done incorrectly, guest worker 
provisions could produce a permanent underclass and downward pressure 
on wages for American workers.
  I remain concerned about a number of the provisions that have been 
adopted in the course of consideration of this legislation--some by 
very close votes. Among these are conflicting provisions on the nature 
and role of the English language, one of which could result in some of 
our own citizens being denied full participation in our society and 
opportunities to improve English proficiency. The other amendment 
recognizes the importance of the English language as a unifying force 
in our society without eliminating the many safeguards in law to ensure 
that those Americans with imperfect language skills can still 
participate in society.
  Before concluding, I would like to speak briefly of two provisions in 
the bill which have gotten very little attention but which are very 
important and constructive additions to the overall package.
  First, I am pleased that it includes provisions of the DREAM Act. 
I've long supported the DREAM Act, which in my view is a common sense 
measure, allowing undocumented students under the age of 16--who were 
brought into this country illegally through no fault of their own--a 
chance to complete higher education.
  Qualifying students, however, will have had to live in the U.S. for 
at least 5 years prior to the date of enactment of this legislation. If 
they earn an advanced degree or serve our country in the Armed Forces, 
they would then be granted permanent status and allowed to petition for 
citizenship. Every student deserves a chance to learn and to serve a 
cause greater than him- or herself. This measure will give many 
deserving children that opportunity.
  The second provision would establish programs to help our neighbors 
to the south, including Guatemala and Belize to fight human smuggling 
and gain control of their tenuous borders. It would also encourage 
strategic coordination across the hemisphere to fight the growing 
problem of gang violence. In my view, these are critically important 
areas because in reality we can-not solve our problems here without 
also addressing the roots of the problems abroad.
  It remains to be seen what will happen to this bill when Senate 
conferees

[[Page S5186]]

sit down with our House colleagues to work out the considerable 
differences between the House and Senate versions of the bill. Speaking 
as one Senator, the measure as it has passed the Senate is a very 
delicate package of compromises that just barely makes it acceptable. 
Any significant diminutions from the Senate package will make this 
measure unacceptable to me, and I suspect, to many of my colleagues. I 
urge the Senate conferees to stand fast to the Senate position.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. DURBIN. Mr. President, are we under unanimous consent agreement 
as to the speaking order?
  The PRESIDING OFFICER. We finished with all the speakers on the 
unanimous consent order.
  Mr. DURBIN. Mr. President, I seek recognition, then, in reference to 
the bill before the Senate.
  In the 200-plus year history of the Senate, there have been few 
moments when Senators were called to reflect on an issue of this 
gravity. This issue of immigration goes to the heart and soul of this 
Nation in which we live. It is an issue which has called forth from 
each side of the aisle the very best in debate, the very best in 
consideration, to tackle one of the most complicated issues that has 
ever faced our Nation.
  But it is not a new debate. It is not a new issue. Almost from its 
outset, America has grappled with this issue of immigration. We are a 
nation of immigrants. We are a diverse nation. Look around your own 
neighborhood, at your church, at the gallery, look around at your place 
of business, and you will see people from all over the world who at one 
time or another came to this great Nation to call it home. With the 
exception of those Native Americans who were here when Christopher 
Columbus arrived, we are all newcomers to America. We are all strangers 
to this land. God has blessed us with this great opportunity to live in 
this land of opportunity.
  That immigrant spirit has meant so much to what we are today and why 
we are different in this world, the courage of individual immigrants to 
leave behind everything--their home, their church, their relatives, 
their language, their culture, their friends--and to strike out for 
America, to find that opportunity which meant so much to them.
  I am a product of that immigrant spirit. My mother was an immigrant 
to this country. She came to the United States 95 years ago as a 2-
year-old infant, brought by her mother with her brother and sister. 
They came from Lithuania and landed in Baltimore, MD. They found their 
way across the United States by train to St. Louis and then by wagon 
across the Mississippi River on the old Eades Bridge to go to East St. 
Louis, IL, to join with other Lithuanian immigrants, immigrants who 
worked in the packinghouses, in the steel mills, in some of the hardest 
jobs you could find.
  Our family's story is a story that has been repeated millions of 
times over. I am sure my mother never would have dreamed in those early 
times when she was struggling with her family to make an immigrant home 
that her son would one day represent the great State of Illinois. But 
that is the story of America. And it is a story we should honor.
  When I consider this debate and everything that has come to it--and I 
understand there are serious differences of opinion--I know this great 
Nation cannot absorb every person who wants to come and live here. We 
are trying to find a reasonable way to deal with that yearning and 
spirit which drives so many people to our borders. I think we have a 
good bill. It is not perfect by any means, but it is a good bill, with 
enforcement at the borders, enforcement in the workplace, and a fair 
process for people to earn their way, over a long period of time, 
facing many obstacles, to legal status in America.
  We would never have had that bill before the Senate were it not for 
the bipartisan leadership in the Senate. I especially commend Senator 
Ted Kennedy on our side of the aisle. What a warhorse. Whenever there 
is a battle in the Senate, you will find Ted Kennedy in the midst of 
it, bringing his special spirit, his special determination, as he has 
to this bill. His great ally in this cause has been Senator John McCain 
of Arizona of the opposite political faith but joining with him in this 
effort to come up with a good bill. And so many others whom I could go 
through the list and name, including Senator Specter, who led this 
effort in the Senate; Senator Leahy--without his help, we never would 
have brought this bill out of the Senate Judiciary Committee; the four 
Republicans, Senators who stood up in the Senate Judiciary Committee 
and said they would join the Democrats, did make this a bipartisan 
effort. When I look at those people and what they brought to this 
debate, I see the best of the Senate.
  It is rare--rare--that we come together, as we will see this 
afternoon, to face one of the most complicated and controversial issues 
in America and to do it in a bipartisan fashion, knowing full well that 
many people think our efforts are futile, that it will fall on deaf 
ears when we go over to conference with the House of Representatives.
  I do not have that negative feeling. I really believe our friends in 
the House of Representatives can also rise to the occasion and can 
understand this special moment in history that should not be lost.
  Within the pages of this bill is a special provision I have worked on 
for years, first with Senator Orrin Hatch of Utah, and then with 
Senator Chuck Hagel of Nebraska. It is known as the DREAM Act. The 
DREAM Act is a provision which says if you were a child who came to the 
United States at least 5 years ago, and you graduate from high school 
and you are prepared to do one of two things--serve in the U.S. 
military or go on to work toward a college degree--we will give you a 
chance, a chance to become an American citizen over a long period.
  We call it the DREAM Act because that is what it is. I have seen 
these young men and women in the city of Chicago and across the United 
States. They did not select the United States as a home. They were 
brought here by their parents. Many of them--most of them--are 
undocumented, but they still believe in their hearts they are Americans 
and can make this a better nation. The DREAM Act, which is included in 
this bill, will give them that chance.
  When I go to visit Cristo Rey High School in the city of Chicago and 
see these wonderful young men and women who are defying the odds by 
completing their high school education, who want to go to college, who 
want to be our doctors and engineers and scientists and businesspeople 
and lawyers and elected officials, I think to myself: America cannot 
afford to waste this great talent and this great resource.
  This bill gives them a chance. This bill gives them hope. This bill 
allows them to have dreams that will be fulfilled.
  This is a great moment in the Senate. I look forward to this vote and 
the passage of this legislation. We will once again validate the 
American dream that, yes, we are a Nation of immigrants, and, yes, we 
are an accepting and welcoming Nation that understands the people who 
come to our shores and bring us diversity bring us strength, as Abraham 
Lincoln once said, to replenish the stream. These are the people who 
will build America's tomorrow. And these are the ones we serve with 
this legislation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, we are down to the final few minutes of 
what has been a long and complicated process but a very civil process--
as some of my colleagues have referred to the process which has been a 
very civil process in the best spirit of the Senate.
  The Senate is about to vote at last on an issue that bears directly 
on our core responsibility to make America a better place by making it 
a safer place, a more secure place. It is an issue that focuses on our 
identity as a nation, a bill that rises to the challenge of solving the 
problem of illegal immigration with a plan that not only secures our 
border but is a comprehensive plan that balances the needs of a growing 
economy with our heritage as a land of proud immigrants.
  This debate has been conducted in the Senate's finest tradition. 
Since I announced last October that the Senate would act this year, the 
understanding of this issue has increased, and increased every day we 
have debated and discussed and voted. The

[[Page S5187]]

conversation both in Congress, in the Senate, and throughout the 
country has become more mature, more sophisticated, has led to a better 
understanding of the complexity of the challenge before us.
  With this better understanding, the fact has become clearer and 
clearer: true border security combines energetic border enforcement 
with a realistic program, a practical program which identifies who is 
in America today, which lays out firm but fair requirements for those 
who want to be part of our great country.
  Last fall, I had the opportunity, as so many have, to go to the 
border. I went then to the Rio Grande border in Texas. The night before 
Senator Hutchison and I arrived, 800 illegal immigrants were arrested 
there and were in detention the next morning, and over 200 pounds of 
marijuana was seized. But you had to wonder how many more people 
slipped through unseen. Another 400, 500, 1,000, another 1,500, just 
through that one sector? Who were they? Where were they headed? What 
were their intentions? What were their names? You had to wonder how 
many might die crossing the desert, not knowing exactly where they were 
going to end up. How many pounds of drugs, in addition to that 200 
pounds of marijuana we witnessed, were making their way to the streets 
of Tennessee, New York, and California?
  When I returned from Texas, I told the American people the Senate was 
going to act to make those borders more secure, to make our country 
safer, to stop that hemorrhaging coming across every night. As one of 
the major first orders of business in 2006, the Senate took up a strong 
border security bill. I specifically outlined when we took up that bill 
that over the ensuing days we would expand that bill to comprehensive 
immigration reform.
  First, the Senate needed to demonstrate we were going to fortify our 
borders. Next, we would strengthen worksite enforcement where the 
magnet is attracting people across those borders. Third, we would 
establish a strong, accountable temporary worker program. Fourth, we 
would offer a plan for a path to citizenship that deals with the 12 
million people, the diversity, that range of people, many who are fully 
assimilated into our society, some who over the last 6 months just 
snuck across the border.
  Today, I am proud to say the Senate has acted. We will vote here in a 
few minutes. We have addressed what had seemingly started as an almost 
insurmountable problem. We are acting with a comprehensive solution. It 
is not a perfect bill--we all understand that--but a bill that will 
accurately reflect the will of this Senate, the 100 Members in this 
Senate.
  We took a bill to the Judiciary Committee and in a short period of 
time, several months, generated a comprehensive bill. We took that bill 
to the Senate, amended it, and made it better. We have taken a bill 
that the American people would have concluded was amnesty and, at least 
by my lights, we took the ``amnesty'' out while putting the 
``security'' in.
  This bill we are about to pass has a 6-year plan to dramatically 
increase the number of agents along that southern border, agents who 
are hired, who are trained, and who are deployed along that border to 
stop that hemorrhaging. With the amendment by Senator Sessions, we have 
agreed to build at least 370 miles of triple-layered fence, with 
another 500 miles of vehicle barriers at strategic locations. This adds 
to provisions in the underlying bill which give the Border Patrol the 
technology and tools, the sophistication of technology we know they 
need to make that border less porous. At last, we will have a long-term 
border control strategy that will work and give us results to make 
America safer, to make America more secure.
  To further bolster border security, we approved an amendment to 
authorize the National Guard to temporarily support border patrol 
operations. Coupled with the almost $2 billion in funds we approved in 
the Senate last month to beef up that border patrol and building on the 
money we appropriated last year--almost $10 billion--to begin hiring 
new agents, Americans should know the Senate is serious about stopping 
that hemorrhaging coming across our borders.
  We also moved to tackle another commonsense issue of national 
cohesion. The Senate voted in favor of an amendment by Senator Inhofe 
to require that English be declared the national language of the United 
States. Learning to speak English is a necessary step for each and 
every aspiring American to be successful and to join in the mainstream 
of American society.
  If the American experiment is to succeed, built on common principles 
and civic duties, every person making their life in this country--all 
of them, all of us, native born and otherwise--needs to learn the 
language, needs to learn the culture, needs to learn the history that 
binds us as a people, as an American people.
  As Americans, we are also bound by our right to vote in free and 
democratic elections. The bill before the Senate provides substantial 
reinforcement to our border and to the laws on the books. It also 
provides a means for some to earn citizenship, while enforcing 
necessary restrictions.
  Illegal immigrants who have been in this country less than 2 years 
must return home. Those who have been here 2 to 5 years would be 
required to come out of the shadows and leave the country, with the 
opportunity to legally return as temporary workers. Those who have been 
here for 5 years or more will be eligible to begin an 11-year process 
to become citizens without uprooting and returning home. No one who 
comes here illegally will reap the benefit of citizenship without first 
demonstrating the commitment to earning, and no one who breaks our laws 
should gain advantage over those who heeded them.
  As I mentioned, this product is not perfect. Much more refinement 
needs to be done. That can be done in conference. But without a doubt, 
the amendments and the debate of the past 2 weeks have strengthened the 
core of this bill. We have had at least 20 Republican amendments, at 
least 18 Democrat amendments. A number of other amendments will be part 
of the managers' package. I am grateful to my colleagues for insisting 
those amendments be heard.
  I thank Senator Specter, who shepherded this bill through the 
Judiciary Committee, and Senators Hagel, Martinez, Kyl, Cornyn, and 
McCain for standing with us all to insist on a fair process that 
allowed for free and open debate in amendments so we could move 
forward. I thank Senator Kennedy for helping all of us set a tone for a 
civil, healthy debate. And I thank Senator Reid for, again, agreeing to 
open and full debate. We have been in full agreement as to how 
amendments would come forward; thus, both of us can be proud that, 
working together, the bill we will be voting on in a few minutes does 
accurately reflect the spirit and the will of this Senate.
  I do hope, as others have suggested this morning, as we turn to other 
issues, the same spirit with which this debate has been conducted will 
continue and will characterize our future deliberations in the Senate.
  I also thank President Bush for his strong leadership for a 
comprehensive solution to these challenging problems. From day one, he 
staked out a position that was tough, not particularly popular when we 
started but one that was tough as well as compassionate, a position 
that acknowledges the rich contributions of America's immigrants while 
recognizing the need, first and foremost, to buttress our borders, that 
respects our heritage as an immigrant nation while upholding the laws 
of the land.
  Early on in this debate, I said:

       This debate, and our effort, is about the American dream 
     and the hope that this country holds for so many hard-working 
     people.

  But I should add, it is also an issue about what it means to be a 
nation. Every nation must keep its citizens safe and its borders 
secure. We should not have to choose between respect for our history 
and respect for our laws. With hard work and responsible debate, we can 
have both.
  In this Senate, we have engaged in responsible debate over the last 
several months. We have worked hard. And with the bill before the 
Senate today, we do have both.
  In closing, we are practical people. We are here to solve problems, 
applying the very best of my conservative principles, learning about 
the best ways to act, setting deadlines, seeking action, not giving up 
just because

[[Page S5188]]

things turn tough. That is the job of leadership in the Senate.
  So much has been said and done in relation to this bill now, there is 
only one thing left for us to do: vote, up or down. I will be voting 
yes, and I hope my 99 colleagues will also vote their conscience but 
also in the affirmative. We are ready for the clerk to call the roll.


                           Amendment No. 4083

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided on the Feingold amendment.
  Who yields time?
  The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I urge my colleagues to support the 
Feingold-Brownback amendment. This amendment will ensure that asylum 
seekers, victims of trafficking, and other immigrants can have 
meaningful judicial review of removal orders.
  The amendment would strike from the bill a provision that would have 
the absurd result of making it harder, in many cases, for an immigrant 
to get a temporary stay of removal pending appeal than to actually win 
on the merits of the case.
  Let me state this in very clear terms. If this provision is not 
struck from the bill, people with meritorious asylum claims will be 
sent back to countries where they will face persecution or even death 
before a Federal court can even hear their arguments.
  Current law allows courts to deny stays to people with frivolous 
claims who are using delay tactics. This provision, then, is a solution 
in search of a problem, and one that creates potentially devastating 
problems of its own. The Senate should strike it from the bill.
  Thank you, Mr. President.
  The PRESIDING OFFICER. Who yields time?
  Mr. FEINGOLD. Mr. President, I yield back all time.
  The PRESIDING OFFICER. The question is on agreeing to the Feingold 
amendment No. 4083.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been requested.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The 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) and the Senator from Colorado (Mr. Salazar) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 52, nays 45, as follows:

                      [Rollcall Vote No. 153 Leg.]

                                YEAS--52

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brownback
     Cantwell
     Carper
     Chafee
     Clinton
     Coleman
     Collins
     Conrad
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Martinez
     McCain
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Sununu
     Voinovich
     Wyden

                                NAYS--45

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Frist
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Talent
     Thomas
     Thune
     Vitter
     Warner

                             NOT VOTING--3

     Enzi
     Rockefeller
     Salazar
  The amendment (No. 4083) was agreed to.


                           Amendment No. 4108

  The PRESIDING OFFICER. There will now be 2 minutes of debate equally 
divided on the Sessions amendment.
  Mr. SPECTER. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senate will be in order.
  Who yields time?
  Mr. KENNEDY. Mr. President, is the Sessions amendment pending?
  The PRESIDING OFFICER. Yes.
  Mr. KENNEDY. A minute for and a minute against, is that correct?
  The PRESIDING OFFICER. Yes.
  Mr. SESSIONS. Mr. President, the earned-income tax credit is a major 
transfer of wealth that we provide to American workers and their 
families. It is a plan that has grown extraordinarily. The people who 
are illegally here now are not entitled to that plan. Just because they 
are legalized, they should not have an automatic right to obtain those 
benefits. If they are here until citizenship, they are entitled to 
those benefits. As a matter of law, they would be entitled to that. It 
amounts to, I believe, $40 billion over the next 10 years. It is 
something that we need to take seriously.
  This $40 billion will increase our debt by that much in the next 10 
years. We are generous with health care and with education and to allow 
overwhelmingly these people to stay in our country. But they are not 
entitled to this welfare benefit.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, what we are saying is when immigrants are 
going to be legal immigrants, they are going to pay income tax, and 
under the Sessions amendment they are going to say you are going to pay 
your taxes, but you are not going to be able to take the earned-income 
tax credit. Your two children may be American citizens, but under the 
Sessions amendment, you will not be able to take the earned-income tax 
credit because you have not effectively became a citizen, even though 
you are legally here and paying taxes.
  This is a special punitive tax provision that will be unique only to 
those individuals. It is wrong and it is unfair, and this amendment 
should be defeated.
  Mr. SESSIONS. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment of the Senator from 
Alabama, Mr. Sessions.
  The clerk will call the roll.
  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) and the Senator from Colorado (Mr. Salazar) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 37, nays 60, as follows:

                      [Rollcall Vote No. 154 Leg.]

                                YEAS--37

     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Cornyn
     Craig
     DeMint
     Dole
     Ensign
     Frist
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Lott
     McConnell
     Nelson (NE)
     Roberts
     Sessions
     Shelby
     Stabenow
     Sununu
     Talent
     Thomas
     Thune
     Vitter

                                NAYS--60

     Akaka
     Alexander
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brownback
     Cantwell
     Carper
     Chafee
     Clinton
     Coleman
     Collins
     Conrad
     Crapo
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham
     Hagel
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Santorum
     Sarbanes
     Schumer
     Smith
     Snowe
     Specter
     Stevens
     Voinovich
     Warner
     Wyden

                             NOT VOTING--3

     Enzi
     Rockefeller
     Salazar
  The amendment (No. 4108) was rejected.
  Mr. KENNEDY. I move to reconsider the vote.

[[Page S5189]]

  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 4136

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes equally divided on the Ensign amendment. Who yields time?
  The Senator from Nevada.
  Mr. ENSIGN. Mr. President, just so people understand the difference 
between this amendment and the amendment we just voted on, when folks 
were here illegally, a lot of them used fraudulent Social Security 
numbers, some of them had stolen IDs and ruined lives with these stolen 
identifications. This amendment says that even though that is a felony 
and this bill gives them amnesty for that felony, we think that is 
enough. We don't think one of these illegal immigrants should be able 
to come back, instead of paying back taxes and qualify for EITC and all 
the other tax credits available to them.
  Uncle Sam is saying: We are going to give you citizenship, permanent 
residency, we are going to forgive the felony of using a Social 
Security number fraudulently, and also, now you qualify for tax 
credits, and so the American taxpayers are going to have to write you a 
check. I think that is wrong. That is why my colleagues should support 
this amendment.
  The PRESIDING OFFICER. Who yields time in opposition?
  Mr. KENNEDY. Mr. President, I yield 1 minute to the Senator from 
South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. GRAHAM. Mr. President, my very good friend from Nevada is driven 
by what he thinks is fair and right. I have a totally different view. 
Here is what I think is fair and right: Punish people appropriate to 
the crime; don't take tax policy and connect it to criminal law.
  What we are saying people right now is: pay your taxes, learn 
English, pay a fine. But let's not come up with tax policy for one 
group of people who are now legal and say: You have to pay, but you 
don't get what anybody else in the country legally gets, and we have 
made you legal.
  What damage are we going to do? We are going to take the tax law and 
turn it upside down and focus on one group and kick them around after 
they do everything else that everybody else has to do. That is not the 
best of this country. That is not consistent with the punishment versus 
the crime. Why would we ask somebody to pay their taxes and then say: 
Thanks for the money; you don't get any other benefits in the Tax Code. 
Rapists, murderers, and thieves go to jail, but they get refunds if the 
Tax Code says so. The only people who are not going to get a refund 
after they pay the taxes is this group of people working hard? That is 
not right.
  Mr. ENSIGN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 4136. The clerk will 
call the roll.
  The 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) and the Senator from Colorado (Mr. Salazar) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Cornyn). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 50, nays 47, as follows:

                      [Rollcall Vote No. 155 Leg.]

                                YEAS--50

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Ensign
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Lott
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter

                                NAYS--47

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Brownback
     Cantwell
     Chafee
     Clinton
     Conrad
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     Menendez
     Mikulski
     Murray
     Obama
     Pryor
     Reed
     Reid
     Sarbanes
     Schumer
     Specter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--3

     Enzi
     Rockefeller
     Salazar
  The amendment (No. 4136) was agreed to.
  Mr. ENSIGN. Mr. President, I move to reconsider the vote.
  Mr. SANTORUM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. KENNEDY. 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 the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.
  The Senate is not in order.


                           Amendment No. 4188

  Mr. SPECTER. Mr. President, I think we have finally cleared away all 
of the underbrush on the managers' package. All I can say with the 
managers' package is it makes sausage look very good, but I think we 
are ready to proceed to a vote on a managers' package. People have 
asked for it.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I have an inquiry through the Chair. I 
thought it was possible, though I would not need 10 minutes, not having 
spoken on the bill, to ask for 10 minutes simply to point out a couple 
of things in the managers' package, including the fact that the U.S. 
Government would be required to consult with the Mexican Government 
before building any fences on the border.
  Would I be able to ask for time to discuss anything in the managers' 
package at this time?
  The PRESIDING OFFICER. The Senator could seek approval by unanimous 
consent.
  Mr. KYL. I ask unanimous consent to speak for 1 minute.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KYL. Mr. President, I thank my colleagues for that courtesy.
  The managers' amendment has been negotiated right up to the last 
second. It is hard to know exactly everything that is in it. I am told 
by staff that among the provisions is one which:

        . . . requires Federal, State and local representatives in 
     the United States to consult with their counterparts in 
     Mexico concerning the construction of additional fencing and 
     related border security structures along the U.S.-Mexico 
     border before the commencement of any such construction to, 
     No. 1, solicit the views of affected communities; No. 2, 
     lessen tensions; and, No. 3, foster greater understanding and 
     stronger cooperation on this and other important security 
     issues of mutual concern.

  I am all for consulting with the Mexican Government on matters of 
mutual concern, but I do not think it is necessary for us to put as a 
precondition into the building of any fencing structures the 
requirement that the U.S. Government consult with the Government of 
Mexico. For that reason among others, I will be voting against the 
managers' package.
  I thank my colleagues.
  Mr. DODD. Mr. President I listened to the remarks of Senator Kyl 
concerning the inclusion in the managers' package of the holding of 
consultations at Federal, State and local levels on both sides of 
border before fence construction occurs. I think I know something about 
this issue because it was my amendment. Senator Kyl suggested in his 
remarks that consultations would give the Mexican Government veto power 
over the building of a fence. Nothing could be farther from the truth, 
and nothing in that amendment would impede the ability of the U.S. 
Government to construct a fence in manner the of our choosing.
  But it is simply common sense and common courtesy to consult those 
individuals in our own communities and

[[Page S5190]]

in affected communities on the other side of the border before 
constructing a fence. Why? Because the fence alone is not going to stop 
the flow of illegal immigration into the United States. It is going to 
take a cooperative effort between the United States and Mexico. My 
amendment seeks to foster the kind of cooperation that is vital if we 
are going to once and for all secure our borders.
  I thank the President for the opportunity to clarify this matter.
  Mr. SPECTER. Mr. President, I send the managers' package to the desk 
and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter], for himself 
     and Mr. Kennedy, proposes an amendment numbered 4188.

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from Colorado (Mr. Salazar) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 56, nays 41, as follows:

                      [Rollcall Vote No. 156 Leg.]

                                YEAS--56

     Akaka
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Brownback
     Cantwell
     Carper
     Chafee
     Clinton
     Coleman
     Collins
     Craig
     Dayton
     DeWine
     Dodd
     Domenici
     Durbin
     Feingold
     Feinstein
     Graham
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Martinez
     McCain
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Stevens
     Voinovich
     Warner
     Wyden

                                NAYS--41

     Alexander
     Allard
     Allen
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Conrad
     Cornyn
     Crapo
     DeMint
     Dole
     Dorgan
     Ensign
     Enzi
     Frist
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lincoln
     Lott
     McConnell
     Nelson (NE)
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Sununu
     Talent
     Thomas
     Thune
     Vitter

                        ANSWERED ``PRESENT''--1

       
     Boxer
       

                             NOT VOTING--2

     Rockefeller
     Salazar
       
  The amendment (No. 4188) was agreed to.
  Mr. REID. I move to reconsider the vote.
  Mr. SPECTER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, I thank the chairman, Senator Specter, and 
Senator Leahy for accepting my amendment, which would help thousands of 
religious minorities who have come to the United States seeking relief 
from the persecution they faced in Iraq.
  Currently in the United States, approximately 3,000 Christian 
Iraqis--about 2,000 of whom are in the metropolitan Detroit area--are 
in jeopardy of being deported. These are persons with no criminal 
record who came to the United States seeking asylum during the regime 
of Saddam Hussein. Due to the long delays in the immigration system, 
however, their cases were not heard before April 30, 2003, when the 
United States declared victory in Iraq. When these individuals finally 
had their day in court, the immigration judge denied their application 
because the government in Iraq that persecuted these individuals was no 
longer in power.
  These Iraqi Christians had valid claims for asylum when the came 
here, they have been hard-working, law abiding residents over many 
years, and they have put down roots and raised families here. They 
should not be punished for the bureaucratic backlogs of the immigration 
judicial system.
  My amendment would protect persecuted religious minorities who fled 
Saddam Hussein's oppressive government in Iraq and came to the United 
States with valid claims of asylum and for whom, despite the change in 
government regime, it is not safe to return to their homeland. The 
persecuted religious minorities are defined as someone who is or was a 
national or resident of Iraq, is a member of a religious minority in 
Iraq, and shares common characteristics with other minorities in Iraq 
who have been targets of persecution on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion. My amendment would make these individuals eligible for legal 
permanent residency status and would supersede all previous judicial 
action on their cases.
  I am pleased that we are able to provide relief to these individuals 
who deserve legal permanent residency on the merits of their cases but 
were unfairly denied it because of bureaucratic delays that were beyond 
their control.
  The PRESIDING OFFICER. The Senator from Louisiana.


                             Change of Vote

  Ms. LANDRIEU. Mr. President, on rollcall vote No. 131, I voted yea. 
It was my intention to vote nay. Given this does not change the outcome 
of the vote, I ask unanimous consent that I be permitted to change my 
vote. This will in no way change the outcome of the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. SPECTER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The bill having been read the third time, the question is, Shall it 
pass?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from Colorado (Mr. Salazar) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Chafee). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 62, nays 36, as follows:
  The result was announced--yeas 62, nays 36, as follows:

                      [Rollcall Vote No. 157 Leg.]

                                YEAS--62

     Akaka
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Boxer
     Brownback
     Cantwell
     Carper
     Chafee
     Clinton
     Coleman
     Collins
     Conrad
     Craig
     Dayton
     DeWine
     Dodd
     Domenici
     Durbin
     Feingold
     Feinstein
     Frist
     Graham
     Gregg
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Sarbanes
     Schumer
     Smith
     Snowe
     Specter
     Stevens
     Voinovich
     Warner
     Wyden

                                NAYS--36

     Alexander
     Allard
     Allen
     Bond
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Dole
     Dorgan
     Ensign
     Enzi
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Stabenow
     Sununu
     Talent
     Thomas
     Thune
     Vitter

                             NOT VOTING--2

     Rockefeller
       
     Salazar
  The bill (S. 2611), as amended, was passed.
  (This bill will be printed in a future edition of the Record.)
  Mr. LEVIN. I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, our immigration system is broken and needs 
to

[[Page S5191]]

be repaired. This bill is a strong step in the right direction. We need 
to protect our borders and look out for American workers, and we also 
need a responsible way to meet the need for temporary workers, 
particularly in the agricultural area, where they represent about 70 
percent of the U.S. agricultural workforce, with a path to earned 
citizenship for hard-working, law abiding temporary workers. This bill, 
the product of bipartisan compromise, takes a commonsense approach to 
all of these issues.
  The comprehensive immigration reform bill before us today would 
strengthen security at our borders through increased border patrol and 
heavier fines for employers who violate the law. It would create a 
sustainable temporary worker program to help fill the lowest wage jobs. 
It would enforce labor protections for U.S. workers by ensuring that 
the temporary workers who are certified do not adversely impact them. 
And it would provide a path to earned citizenship that does not bump 
anybody who has applied through the legal channels and has been 
waiting. Undocumented immigrants who have been here for years, set down 
roots, worked hard, and paid their taxes would go to the end of the 
line and earn citizenship after perhaps as many as 10 to 15 years.
  I am pleased that we were able to include additional protections for 
U.S. workers in the bill. I supported an amendment introduced by 
Senator Obama that strengthens labor protections for U.S. workers and 
bars employers from hiring guest workers in areas with a high 
unemployment rate. This and other amendments will help ensure that we 
have a well-balanced, and workable guest worker program. In addition to 
these amendments, I am also pleased that we have maintained the AgJOBS 
provision within the bill. This provision is a commonsense fix to major 
problems being faced by those who have the least access to resources: 
low wage agricultural workers from exploitation which would adversely 
impact American workers.
  I was pleased that the Senate recognized the significant 
implementation challenges associated with the Western Hemisphere Travel 
Initiative and accepted an amendment that would extend its deadline. 
The WHTI requires anyone entering the United States via a U.S.-Canadian 
land border to have a passport or other acceptable alternative document 
by January 1, 2008. The amendment accepted by the Senate extends this 
deadline by 18 months to June 1, 2009.
  My home State of Michigan, like other northern border States, enjoys 
a close economic and social relationship with Canada. The WHTI will 
play an important role in securing our borders, but it must be 
implemented in a reasonable, fair, and well thought out manner that 
minimizes negative impacts on trade, travel, and tourism. By voting to 
extend the deadline, we are giving the Departments of State and 
Homeland Security additional time to study and correct the various 
implementation issues related to the WHTI.
  I am also pleased that the immigration bill addresses another key 
border issue: the security problem that is posed by trash trucks 
entering this country. My amendment, which was accepted by the bill 
managers, would stop the importation of Canadian waste if the 
Department of Homeland Security can not show that the methodologies and 
technologies used to screen these trash trucks for the presence of 
chemical, nuclear, biological, and radiological weapons are as 
effective as those used to screen for such materials in other items of 
commerce entering the United States by commercial vehicle.
  Finally, I want to thank the managers of this bill for accepting my 
amendment that would protect thousands of individuals who fled 
religious persecution in Iraq under Saddam Hussein. Due to delays in 
the immigration bureaucracy, many of these individuals have not yet had 
their day in court, and, of those who have, many have been denied 
asylum based on changed country conditions since the war. My amendment 
would make these individuals eligible for legal permanent residency if 
they would have received that status but for the bureaucratic delays.
  The comprehensive immigration bill before us will make our borders 
more secure while creating a workable temporary worker program that 
protects U.S. jobs. I will support this bill and hope that the 
conference committee will return a final bill similar to it.

                          ____________________