Congressional Record, Volume 153 Issue 85 (Wednesday, May 23, 2007)

[Congressional Record Volume 153, Number 85 (Wednesday, May 23, 2007)]
[Senate]
[Pages S6499-S6539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2007

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 1348, which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 1348) to provide for comprehensive immigration
reform and for other purposes.

Pending:

Reid (for Kennedy/Specter) amendment No. 1150, in the
nature of a substitute.

Amendment No. 1166 to Amendment No. 1150

The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Madam President, I have an amendment at the desk that I
would like to call up.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:

The Senator from Iowa [Mr. Grassley], for himself, and Mr.
DeMint, proposes an amendment numbered 1166.

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

(Purpose: To clarify that the revocation of an alien's visa or other
documentation is not subject to judicial review)

At the appropriate place, insert the following:

SEC. ___. JUDICIAL REVIEW OF VISA REVOCATION.

(a) In General.--Section 221(i) of the Immigration and
Nationality Act (8 U.S.C. 1201(i)) is amended by striking
``There shall be no means of judicial review'' and all that
follows and inserting the following: ``Notwithstanding any
other provision of law, including section 2241 of title 28,
United States Code, any other habeas corpus provision, and
sections 1361 and 1651 of such title, a revocation under this
subsection may not be reviewed by any court, and no court
shall have jurisdiction to hear any claim arising from, or
any challenge to, such a revocation.''.
(b) Effective Date.--The amendment made by subsection (a)
shall--
(1) take effect on the date of the enactment of this Act;
and
(2) apply to all visas issued before, on, or after such
date.

Mr. GRASSLEY. Madam President, the amendment I have before you is
dealing with an issue I just described in morning business as one of 15
flaws in a very important part of this legislation. This amendment is
going to revise current law related to visa revocation for visa holders
who are on U.S. soil.
Now, we have this situation which does not make sense. My amendment
is meant to bring common sense to this. Under current law, visas
approved or denied by a consular officer in some of our embassies
overseas would be nonreviewable. In other words, what that consular
office said would be final. That person being denied a visa to come to
this country would not have access to courts because consular officers
have the final say when it comes to granting visas and allowing people
to enter a country. So if you are a consular officer and you believe
somebody is a terrorist or a terrorist threat, you can deny the visa,
no review.
However, if that person gets a visa and they come to this country and
we find out later on that they are a potential terrorist and should not
have come here in the first place and you want to get them out of the
country as fast as you can--because that is surely what we would have
done with the 19 pilots who created the terror we had on September 11--
then that decision made when the person comes to this country, that
decision by the consular officer is reviewable in the U.S. courts.
Now, everybody is going to say: Well, that just does not make sense.
You know, the same person over in some foreign country wants to come
here, and the consular officer says: We can't let that person come here
because he is a potential terrorist threat. Well, then they do not get
to come here and nobody can review that. But if that very same person
came here and we decided they shouldn't have been here in the first
place, then they have access to our court system before they can be
removed. Thanks to a small provision inserted during conference
negotiations on the Intelligence Reform and Terrorism Prevention Act of
2004, the visa holder at that point has more rights than he or she
should have. I think that is very obvious.
Now, the ability to deport an alien on U.S. soil with a revoked visa
is nearly impossible if the alien is given the opportunity to appeal
the revocation. This section has made the visa revocation ineffective
as an antiterrorism tool.
My amendment would treat visa revocations similar to visa denials
because the right of that person to be in the United States is no
longer valid. In other words, if it was not valid for him to come here
in the first place and it

[[Page S6500]]

was not reviewable by the courts, and then they get here and for the
same reasons they should not be here--because they are a terrorist
threat--they should not have access to our courts.
So this exception has made the visa revocation ineffective as an
antiterror tool. My amendment would treat visa revocations similar to
visa denials because the right of that person to be in the United
States is no longer valid. If they were originally denied a visa by the
consular officer, there would be no right to dispute; they would not be
here in the first place.
I asked Secretary Chertoff about the problem with our current law on
the visa revocation, and I want to quote from what he told the
Judiciary Committee in March because I have been working on this
problem for a while. To quote Secretary Chertoff:

The fact is that we can prevent someone who's coming in as
a guest. We can say ``You can't come in overseas,'' but once
they come in, if they abuse their terms and conditions of
their coming in, we have to go through a cumbersome process.
That strikes me as not particularly sensible. People who are
admitted as guests, like guests in my house, if the guest
misbehaves, I just tell them to leave; they don't get to go
to court over it.

We can equate the role of homeowner to that of a consular officer.
Currently and historically, all decisions by consular officers with
regard to the granting, the initial granting of visas are final and not
subject to review. Revocations shouldn't be treated differently in the
case of terrorists.
Why is this important to do? Consider visa revocations related to
terrorism. Consider the 2003 Government Accountability Office report
revealing that suspected terrorists could stay in the country after
their visas had been revoked on the grounds of terrorism because of a
legal loophole in the wording of revocation papers. This loophole came
to light after the Government Accountability Office found that
individuals were granted visas that were later revoked because there
was evidence the persons had terrorism links and associations.
The FBI and the intelligence community suspected ties of terrorism in
hundreds of applications. The FBI did not share this information with
our consular officers in time, so the consular officers granted the
visas. So I suppose at that point you cannot blame the consular
officers when they did not have the information the FBI should have
given to them. So then when they got the derogatory information about
these individuals from the FBI, then it was too late. They had already
been granted visas. They were already here. The consular officers then
had to go through the process of revoking the visas. What the
Government Accountability Office found was that even though the visas
were revoked, immigration officials could not do a thing about it. They
were handicapped from locating the visa holders and deporting them.
I wish to give you an example of how this hurts us today. A consular
officer grants a visa to a person, and that person makes his or her way
where they were intended to come, to this great country of the United
States. After arriving in the United States, a consular office finds
out that the foreign individual has ties to terrorism. Maybe the
consular officer found out that visa holder attended a terrorist
training camp or maybe the intelligence community just informed the
consular officer that the visa holder was linked to the Taliban or
maybe our Government just learned that visa holder gave millions of
dollars to a terrorist organization before they applied for a visa.
These are all very good reasons for revocation of a visa. If a person
should not have received a visa in the first place, then the consular
officer has to revoke it. Well, I mean if they had the visa then, you
have to go to the trouble of getting it revoked.
Three key points to consider: First, the decisions to revoke a visa
are not taken lightly. If a consular officer needs to revoke a visa,
the case is thoroughly vetted. In fact, the case is decided back here
in Washington, DC, at the highest levels. Second, consular officers do
not have the authority to revoke a visa based on suspicion. A
revocation must be based on actual finding that an alien is ineligible
for the visa. Third, consular officers give the visa holder an
opportunity to explain their case. They may ask them to come to the
embassy and defend themselves. So when a visa is revoked, it is very
serious business. But the current law handicaps law enforcement and
makes it nearly impossible to deport the alien if they already made it
to the United States.
Current law allows aliens to run to the steps of our country's
courthouses and take advantage of our system. Allowing review of a
revoked visa, especially on terrorism grounds, jeopardizes the
classified intelligence that led to the revocation. It can force
agencies such as the FBI and the CIA to be hesitant to share any
information. Current law could be reversing our progress on information
sharing, the very major thing we did to make sure September 11 didn't
happen again. Prior to September 11, the FBI and the CIA could not
share information. Now they can, in hopes that we will stop September
11 from happening again. But if all this information is going to get
out through the court system, one of two things will occur: It isn't
going to be given to the State Department in the first place, or,
secondly, if it is given and it gets into the court system and gets
out, we are going to have a damper put on the sharing of information.
We ought to be able to make sure a terrorist doesn't get into this
country without exposing the source of our information and, once here,
get them out. We need to secure this country, and we need the ability
to revoke visas without terrorists or criminals seeking relief from
deportation. I remind my colleagues of our poor visa policy
contributing to the attacks on September 11. Nineteen hijackers used
364 aliases. Those people who killed 3,000 people in New York and 300
people here at the Pentagon knew how to play the system. They had 364
aliases. Two of the hijackers may have obtained passports from family
members working in the Saudi passport ministry. Nineteen hijackers
applied for 23 visas and obtained 22. The hijackers lied on the visa
application in detectable ways. The hijackers violated the terms of
their visas. They came and went at their convenience.
The 9/11 Commission pointed out the obvious by stating:

Terrorists cannot plan and carry out attacks in this
country if they are unable to enter the country.

In the Midwest we call that common sense.
The 9/11 Commission recommended that we intercept terrorists and
constrain their mobility. This amendment would do that. Allowing aliens
to remain on U.S. soil with a revoked visa or petition is a national
security concern and something the 9/11 Commission would suggest is
needed. We should not allow potential terrorists and others who act
counter to our laws to remain on U.S. soil and get the protection of
our courts, stay in this country for years through the appeals process
of seeking relief from deportation.
Terrorists took advantage of our system before 9/11. We cannot let
that happen again. This amendment will be helpful in making sure that
doesn't happen again.
I hope my colleagues will support the amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I thank the Senator from Iowa.
I see the Senator from Georgia and I know the Senator from New Jersey
wishes to speak on this issue. I will speak briefly. Will the Senator
agree to an hour of time on the amendment?
Mr. GRASSLEY. Yes. Will the Senator let me check with our leadership?
Mr. KENNEDY. That is fine. We don't expect to vote at that time. I
have been informed by the leader we are going to try to do this
amendment, then the Bingaman amendment, and then vote on both at 2
o'clock. I won't propose that as a time, but if the Senator would think
in those terms, we will go ahead with other Senators and then come back
to the Senator from Iowa.
Mr. GRASSLEY. Madam President, may I say to the Senator that it is
not my idea to take a long time, but I was asked to offer my amendment
now by the leadership. I want to check with them.
Mr. KENNEDY. I thank the Senator.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Madam President, in deference to the distinguished
Senator from New Jersey, I will only be a minute.

[[Page S6501]]

To the distinguished Senator and my ranking member on the Finance
Committee and my dear friend, I commend him on his words and his
effort. I do want to correct or at least amplify on a simile he used in
his remarks where he had the picture of a stuffed horse named Trigger
and made an analogy to the triggers in this bill.
I have worked for 18 months on these triggers. They actually are a
complement to what he wants to do in terms of deporting people who are
in this country on expired visas. One of the triggers in the bill that
is a prerequisite to any of the rest of the bill going into effect is a
biometrically secure ID which will prohibit exactly what happened with
the hijackers on 9/11, because every business, school, employer,
university, training center, and the like will be able to swipe that
mag tape, and if they have an expired visa, they will know it.
Secondly, because of the biometrics of a fingerprint, you cannot have a
forged ID, nor can you have a stolen ID, because the holder of the
stolen ID's print will not match.
With regard to the other triggers--and I appreciate the time of the
Senator from New Jersey to amplify on the remarks I made yesterday--the
triggers in this bill provide 2,700 redundant miles of barriers and
visual security on the border, more miles than there are on the common
border; 18,000 Border Patrol agents; 27,500 beds to detain anyone who
is caught until their hearing date comes forward; 375 miles of
barriers; 1,640 miles of ground positioning radar; 600 miles of
constant surveillance in the air, plus all the ground sensors and the
cameras that allow those 18,000 agents, when they are on duty, to
immediately intercept the people who are violating the border,
immediately put them in one of the 27,500 beds, and hold them until
their case comes up and they are deported. I have no qualm with the
Senator's amendment whatsoever, but I don't think it is exactly correct
to make the reference to Roy Rogers' horse as an analogy to the
triggers in this bill because, in fact, these triggers are meaningful.
In their absence and in the absence of the President seeing that they
are done, Homeland Security executing, and the Congress appropriating,
this bill self-destructs. It is the predicate upon which complementary
things such as the Senator is trying to do actually are made more
meaningful and more helpful.
I appreciate the Senator letting me amplify on that.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Madam President, I have two purposes for rising at this
point. One is to speak to the amendment offered by the distinguished
Senator from Iowa and then to speak substantively, as we get into a
full debate of comprehensive immigration reform, to lay out some
parameters I hope all of our colleagues will consider.
Let me start off with the Grassley amendment. I rise in strong
opposition to the amendment. It abolishes the last--underlined--remnant
of judicial review on visa revocations. During the course of this week
and the week when we come back, we are often going to hear terrorism
invoked as the reason we must act in certain ways. Some of those ways
ultimately undermine the essence of the Constitution of the United
States and the equal protection clause. I think it is a false choice to
be put in a position between the suggestion of terrorism and the
suggestion that we should undermine the Constitution. I raise that as a
warning flag now, as we look at all other amendments that are going to
be coming. We are going to hear a wide range of reasons why we should
dramatically change judicial reviews, the essence of protection under
the Constitution. I hope our colleagues will understand that is a
slippery slope to go down.
I hope we are not going to undermine due process, rule of law, and
judicial review, because they are not just limited to suggestions on
terrorism. Maybe if they were limited only on that, we could consider
supporting such amendments. But it is eliminating judicial review
totally, as it relates to visa revocation.
Right now what is the law? Right now judicial review of a visa
revocation is already severely restricted. In fact, visa revocations
are insulated from any judicial review when the visa holder is outside
of the United States and the consular officers--these are our
representatives abroad--have exceptionally broad authority to make
revocation decisions. If you are outside the United States, you are not
even coming. You don't even get a chance at judicial review. Let's make
that clear.
The only area where limited judicial review of visa revocation
remains available is with respect to individuals who are in the United
States and then are placed in removal proceedings as a result of the
revocation. Then judicial review is permitted in the context of those
removal proceedings, if revocation is the only ground for that removal.
This is a critical check on Government authority to make arbitrary
decisions. It is vitally important to allow the court review of removal
proceedings because a person's ability to remain in the United States
is at stake. We know immigration authorities have on more than one
occasion made a mistake in the person's case or the person may have
compelling circumstances that warranted consideration by a judge. We
have seen cases time and time again that have so dictated and have said
the Government is wrong, the individual is right. This would nullify
that opportunity totally. This amendment would eliminate the last
remaining remnant of judicial review.
Mr. KENNEDY. Will the Senator yield on that point for a question?
Mr. MENENDEZ. I am happy to yield.
Mr. KENNEDY. I listened with great interest--I hope our colleagues
are--to the point the Senator from New Jersey is making. I wish to ask
his comment on a situation. Some months ago we had a raid in New
Bedford, MA. The people were picked up. They were sent up to Fort
Devons and flown out of there, and many of them were transported to El
Paso. Then some of them were deported. I have in my hand a May 3
article from the Boston Globe. The headline is ``U.S. Deports Wrong
Raid Detainee In Case of Mistaken Identity.''

A man arrested in the March 6 raid of the Michael Bianco
leather factory in New Bedford was deported by mistake,
Federal officials said yesterday. Juan Sam-Castro, a native
of Guatemala, was taken for a man of the same name, said the
spokesman for the U.S. Immigration and Customs Service. As
soon as the Customs Service became aware, we took immediate
steps to bring Castro back to the United States. We are
trying to locate him.

Here is an American citizen who has been deported and they are trying
to locate him. Is the Senator not saying that in the situation where
last year we deported 187,000 individuals and even in the last few
weeks where we have this kind of mistake, at least some opportunity for
an expedited kind of a review that effectively is not slowing the
process down with this individual, between the time he was arrested and
the time he was deported, was very few weeks, let alone the time he had
the hearing, does this illustrate at least part of the points the
Senator is trying to make with regard to the immigration service and
the need for at least permitting the kind of review that currently
exists? I do not believe we have had testimony to the contrary that
this is an undue burden on the system.

Mr. MENENDEZ. Madam President, I appreciate the question and
description from the Senator from Massachusetts. In fact, it is clearly
one element--one very dramatic element--of the Government acting
wrongly: deporting someone who had every legal right to be here in this
country--making that mistake, and then, realizing they made a mistake,
are now trying to find that individual whose life has been turned
upside down.
In the process of doing that, under the amendment of the Senator from
Iowa, they do not even have a chance to go to court. So the human faces
we are talking about here are real. That is not about terrorism.
Now, let me give you another example. The Senator from Massachusetts
gave a very vivid one. Let me give you another example of what happens
when we do not permit basic due process as a part of our law.
This amendment would eliminate judicial review for all visa
revocations unnecessarily, and it unduly expands the already broad
discretionary authority of the executive branch. Let me

[[Page S6502]]

give you an example--a different case. A foreign government that wants
to rein in one of their dissidents provides false information to the
U.S. consulate that leads the consul to revoke the visa. This is
someone who is speaking against maybe a totalitarian regime, a
dictatorship, people who are oppressing people's human rights, but they
are here in the United States. They got a visa, and they are here
speaking out. That government wants to make sure that person can no
longer speak out, so they give false information to the consul, and the
consul reviews it and makes a factual determination: Do you know what.
This looks right. Let's revoke the visa.
That person, that dissident, struggling to make a difference in the
lives of people in that country--we want to see people like that
challenging their own systems; we want to see people like that fighting
in their own countries so we never have to send our people abroad--that
person does not even have one chance to make the case in a court of law
that what is being said is false.
Exposing individuals in this country to such arbitrary and capricious
action is un-American. We should be striving for more balance and more
transparency, not less.
Let me say there is another case, a case decided here in the United
States in June of last year, where a U.S. Federal judge issued an order
soundly rejecting the Government's contentions against an individual--
the same type of case that would not, under this amendment, have access
to this type of judicial review where this Federal judge determined
that the Government was wrong, the individual was right.
What was the individual saying? He was saying his point of view,
which separated him from the administration's point of view. Because it
separated him from the administration's point of view, they revoked his
visa. The judge held the decision was not a due authority, a use for
the revocation of the visa, and that person was allowed to stay simply
because they were expressing their points of view different from this
administration.
Is that what we want to do? Eliminate the possibility for someone to
be able to go to court and say: ``I am being hushed because I have a
different point of view. My visa is being revoked with not one chance
to go to court''?
By the way, finally, if we are going to talk about terrorism, if I
have a terrorist in my possession, under other provisions of law I do
not want to deport them. I want to arrest them. I want to throw them in
jail. I want to make sure they do not get out of the country to do harm
back to this country. Why would I want to deport them? I want to arrest
them. I want to jail them under other provisions of law. I want to
prosecute them. I do not want to let them go free so they can try to do
harm again to the United States.
This amendment actually works to the opposite of our national
security interests. I urge my colleagues to oppose it.
Now, let me speak more broadly about the overall immigration effort.
Since I have already heard some of the commentaries on the floor, I
think it is important for us to have a framework of where this
discussion, I hope, will go in a civilized fashion that understands the
better angels within us.
From the congressional district I had the honor of representing for
over 13 years in the House of Representatives, one can see the Statue
of Liberty. You can almost touch it. Ellis Island has been a gateway to
opportunity for millions of new Americans. For me, it is a shining
example of the power of the American dream, a place that launched
millions down their own road to success.
As Americans listen to this debate, I hope they understand and are
honest with themselves--whether their family was part of the men and
women who made the voyage on the Mayflower or part of the millions who
stepped off of Ellis Island or part of those who were brought to
this Nation against their will or, if like my own parents, they came to
this country fleeing tyranny and searching for freedom--we all have a
connection to immigration.

America has a proud tradition as a nation of immigrants and a nation
of laws. History is replete with examples of the United States of
America being a welcoming Nation. But, unfortunately, very often the
public dialog through the years has been less than welcoming. Over the
decades, the influx of immigrants of various ethnicities has caused
concerns and, in many cases, heated comments against such immigrants to
our Nation. In some cases, there were even laws enacted to limit or ban
certain ethnic groups from being able to come to the land of
opportunity. Let's remember some of this history so we do not repeat it
again in these debates.
Before the American Revolution, Founding Father Benjamin Franklin
wrote of the influx of German immigrants to Philadelphia:

Those who come hither are generally the most stupid of
their own nation.

Henry J. Gardner, the Governor of Massachusetts in the middle of the
19th century, saw the Irish as a ``horde of foreign barbarians.''
In 1882, Congress enacted the Chinese Exclusion Act, which made it
nearly impossible for additional Chinese to enter America. The law was
not repealed until 1943, in the middle of World War II, when the United
States and China were allies against Japan.
In the early 1900s, H.G. Wells, a British novelist, stated that the
arrival of Eastern Europeans, Jews, and Italians would cause a ``huge
dilution of the American people with profoundly ignorant foreign
peasants.''
Congressman Albert Johnson, coauthor of the Johnson-Reed Immigration
Act of 1924, which severely restricted immigrants from Southern and
Eastern Europe, and entirely prohibited East Asians and Asian Indians,
stated that:

Our capacity to maintain our cherished institutions stands
diluted by a stream of alien blood, with all its inherited
misconceptions respecting the relationships of the governing
power to governed. . . . The day of unalloyed welcome to all
peoples, the day of indiscriminate acceptance of all races,
has definitely ended.

Finally--to give you a sense of some of these things that have been
part of our past--a 1925 report of the Los Angeles Chamber of Commerce
stated that Mexicans are suitable for agricultural work ``due to their
crouching and bending habits . . . , while the white is physically
unable to adapt himself to them.''
That was in 1925.
These are just a few statements from the past that have taken issue
with and criticized the relatives and forefathers of various segments
of our Nation's population today.
We must all remember that just in the last Congress the House of
Representatives passed H.R. 4437, better known as the Sensenbrenner
bill. Beyond the heated rhetoric that existed during the debate on that
legislation, the bill itself was shortsighted and even more mean
spirited and would have made felons out of anyone who was here in an
undocumented status. That bill would have also criminalized citizens of
the United States through a much broader definition of smuggling that
would have allowed the Government to prosecute almost any American who
had regular contact with undocumented immigrants. Luckily, that did not
pass.
But today we continue to hear across the landscape of the country
hateful rhetoric used to polarize and divide our country on this issue.
But we must never allow ourselves to buy into the rhetoric. We must
never subscribe to the policies of fear and division, driven by
xenophobia, nativism, and racism.
The responsibility is on all of us--not just on Members of Congress,
but everyone in this Nation. We must reject the rhetoric of hatred,
division, and polarization. We must demand a comprehensive immigration
policy that does not denigrate or demonize, but is tough, smart, fair,
and humane.
However, on this issue, we must be completely honest with ourselves.
Our country's immigration system is unarguably broken. In light of
these failures, we must enact tough, smart, and comprehensive
immigration reform that reflects current economic and social realities,
respects the core values, I hope, of family unity and fundamental
fairness, and upholds our tradition as a nation of immigrants.
In the absence of Federal legislation, what is happening is many
local governments in my State of New Jersey and, for that matter,
across the Nation are passing ordinances to address issues surrounding
undocumented immigration in their communities. Unfortunately, many of
these ordinances

[[Page S6503]]

violate constitutional equal protection guarantees and create divisions
in communities that did not exist.
In addition to the moral imperative, our society would greatly
benefit economically if we enacted comprehensive immigration reform.
Such reform would allow undocumented immigrants to come out of the
shadows and fully pay their taxes, ensuring accurate census counts,
which translates into equitable funding levels for programs and
schools. Additionally, we can reduce law enforcement demands since the
need for day laborers, forged documents, and driver's licenses, along
with the use of exploitation and human trafficking would largely be
shut down.
As to those who don't come forward when such an opportunity is
presented, we would be focused on asking: Why are they not coming
forward? We would be able to determine who is here to pursue the
American dream versus who is here to destroy it.
We need to aggressively curtail unauthorized crossings at the border,
protect both undocumented immigrants and American workers from
corporations exploiting undocumented labor, and provide a pathway for
immigrants to earn--and I repeat: earn--permanent residency in order to
ensure our immigration system is safe, legal, orderly, and fair to all.
Our goal should be neither open borders nor closed borders but smart
borders. The specter of terrorism in a post-September 11 world creates
an even greater imperative for us to succeed in this endeavor. The
underlying bill has a whole host of triggers that go to the very heart
of those elements.
We have all seen some of the consequences. We have seen lawlessness
along the borders. Crime in our border communities is increasing and
overwhelming local law enforcement's ability to address these
challenges. So-called coyotes, or human smugglers, charge thousands of
dollars to bring people into this country, creating a multimillion
dollar industry for organized criminal organizations to exploit and
fuel their other illegal activities. In fact, several reports have
indicated there is more money in smuggling these undocumented
immigrants into our Nation than smuggling drugs.
However, history proves it is not enough to rely on enforcement
alone, even though I am totally for the enforcement. Over the past two
decades, the Federal Government has tripled--tripled--the number of
Border Patrol agents and increased the enforcement budget tenfold--
tenfold. Yet, despite tripling the Border Patrol and increasing the
budget tenfold, these efforts have yet to stop those who have either
crossed the border or overstayed their visas. So it is about border
protection, but it is also about a more comprehensive effort to make
sure you deal with the push-and-pull factors of immigration.
Securing our borders is the first step to ensure an orderly, fair,
and smart immigration system, but by no means is it adequate in
isolation. We must also crack down on companies that illegally hire
undocumented workers--something that is long overdue. I know under the
Clinton administration, employers were held accountable for hiring
undocumented workers, as 417 businesses were cited for immigration
violations in 1999 alone. In contrast, a mere three--three--employers
were issued notices of intent to fine by the Bush administration in
2004 for similar violations, making it 22 times more likely for an
American to be killed by a strike of lightning in an average year than
prosecuted for such labor violations.
So much for enforcing the existing law.
What happened in the span of those 5 years? What happened? Did
companies suddenly decide to start abiding by the law by not hiring
undocumented immigrants? No. The truth of the matter is, similar to
border enforcement, this administration made a conscious decision to
look the other way in order to once again serve the interests of
corporate America to the detriment of average American citizens.

That is why I support stronger immigration enforcement not only at
the borders but at the workplace. Unscrupulous companies that
intentionally hire undocumented immigrants do so because they know they
can exploit these people without fear of retribution. They know this
because undocumented immigrants are forced to hide in the shadows of
society and subsequently have no avenues to report labor abuses. Not
only does this hurt the immigrant being exploited, it also directly
impacts American citizens who must compete in the market with exploited
labor. We must immediately end these abuses and in doing so create an
equal playing field to ensure that the wages, benefits and health and
labor standards of the American worker are not undercut.
While securing our borders and enforcing strengthened workplace
employment laws will enable us to regulate the influx of new
immigrants, it does nothing to solve our current dilemma of an
estimated 12 million undocumented immigrants who currently reside in
the United States. That is why our immigration policy must be about
more than simply enforcement. It must be about providing a safe,
orderly, timely, and legal process that deals with the economic
realities of our time.
So in order to make our immigration system overall workable, we must
be practical, fair, and humane in dealing with the estimated 12 million
undocumented immigrants living in the United States. To do otherwise
would require the most massive roundup and deportation of people in the
history of the world--in the history of the world. I believe this is
both highly unlikely and impractical on many levels, including due to
both budgetary and economic impacts on the Nation and its economy.
Such a mass deportation of the undocumented population, even assuming
20 percent could leave voluntarily if such a policy was enacted, would
cost us over $200 billion over a 5-year period, according to the Center
for American Progress. That is not going to happen. So fully securing
our borders is impossible unless efforts to include a temporary guest
worker program and a path to earn residence for undocumented immigrants
is part of the overall reform.
This solution will encourage immigrants to come out of the shadows
and legalize their status. By doing so, we will learn who is here to
seek the American dream versus who is here to destroy it through
criminal or terrorist acts. Most of the people who cross our borders
come looking for work, as many of our ancestors did. These immigrants
contribute to our economy, provide for their families, and want a
better life for their children.
Let me say I am, first and foremost, in favor of hiring any
American--any American--who is willing to do any job that is available
in this country today or tomorrow, but let's remember the jobs we are
talking about. The fruit you had for breakfast was picked by the hands
and bent back of an immigrant laborer. The hotel room and bathroom you
use in travels through the country is likely cleaned with bended knee
by an immigrant worker. The chicken you had for dinner yesterday was
likely plucked by the cut-up hands of an immigrant laborer. If you have
an infirmed loved one, their daily necessities are probably being
tended to by the steady hands and warm hearts of an immigrant aide. Let
us remember that.
So we have to create an equal playing field to ensure that the wages,
benefits, health, and labor standards of the American worker are not
undercut. But it is also in our best interests to have these workers
participate and contribute to our society, especially when we had a
4.5-percent unemployment rate in April of this year and a declining
ratio of American workers to retirees.
By coupling enhanced enforcement efforts with new immigration and
labor laws, we will not only regulate how workers come into the country
but finally give our border and law enforcement agencies a fighting
chance to fulfill their duty.
Now, much of what the underlying bill does meets some of these
challenges, and I respect those elements. But I wish to talk about one
very compelling issue that I believe it does not meet: the importance
of family. I said throughout the negotiations that were had, with a
massive, complex bill such as this one, the devil is in the details.
There are a number of details in this deal that would create an unfair
and, in my mind, impractical immigration system, undercutting the more
sensible provisions.

[[Page S6504]]

This is especially true when it comes to the issue of family. The
deal struck virtually does away with a provision for family
reunification which has been the bedrock of our immigration policy
throughout our history. This idea not only changes the spirit of our
immigration policy; it also emphasizes family structure, and all
without a single hearing on the issue of family and our immigration
system by the Senate Judiciary Committee, either in the 109th or the
110th Congress.
Under this bill, they change the fundamental values of our
immigration policy by making an advanced degree or skill in a highly
technical profession the most important criteria--the most important
criteria--for a visa. This Nation has been built by immigrants who came
here to achieve success, but the deal tilts toward immigrants whose
success stories are already written. They are already written.
Family reunification will be deemphasized under this deal, serving to
tear families apart. From a moral perspective, this undermines the
family values I hear so many--in different contexts--so many of my
colleagues talk about all the time.
As the late Pope John Paul II said:

The church in America must be a vigilant advocate,
defending against any unjust restriction of the natural right
of individual persons to move freely within their own Nation
and from one Nation to another. Attention must be called to
the rights of migrants and their families and to respect for
their human dignity.

Practically speaking, a breakdown of family structure often leads to
a breakdown of social stability. I took it to heart when President Bush
said: ``Family values don't end at the Rio Grande,'' but this
agreement, similar to his proposal before it, belies those words.
Yet here we are with a piece of legislation which the White House
promoted that undermines the very essence of that. Even under a new
point structure that is envisioned under the bill, it seems to me that
the essence of family should be given more weight and points within the
context of a whole new process of how we are going to move our
immigration system forward. Family, I would hope, even under a new
system, is a critical value, in our country.

I would like to take a little time to get into some of the details of
this agreement and how they would impact families.
Under current law, foreign-born parents of U.S. citizens are exempt
from green card caps when applying for legal permanent residency as
they fall in the immediate relatives category. Now, remember, this is
someone--a U.S. citizen already--a U.S. citizen or a U.S. permanent
resident who has a right--who has a right--to claim their relative. In
this case, I wish to talk about parents. Unfortunately, the agreement
removes these individuals from the immediate relative category and sets
an annual cap for green cards for parents of U.S. citizens at 40,000.
Last year, 120,000 visas were given to such parents, and the annual
average number of green cards issued over the past 5 years to parents
is 90,000, so this bill would slash required green cards by more than
half for a U.S. citizen to be reunified with their mother or father. So
we are automatically creating a new backlog, even though the bill is
intended to end such family backlogs.
Another area that would be negatively impacted under the deal is the
spouses and minor children of legal permanent residents of the United
States. The bill before us does not lift the visa cap on the spouses
and minor children of lawful permanent residents; it actually lowers
it, ensuring that backlogs continue indefinitely. The separation is not
only immoral in my mind, but it exacts an economic toll, as lawful
immigrants who are productive members of society move to rejoin their
families. Moreover, unification with immediate family members gives
rise to an undesirable incentive to break the law and live in the
United States illegally. Families want to migrate to each other, and
that is a natural, human instinct. We undermine that in this respect.
Now, the so-called ``grand bargain'' also moves us to a point-based
immigration system which would turn current immigration on its head--a
system that hasn't received any hearings by the Judiciary Committee.
Yet, in the agreement, we are moving to a point system that is geared
toward people with degrees who are highly skilled or educated. Fine. We
can have people who are highly skilled and educated as part of the
equation, but in my mind it shouldn't ultimately undermine dramatically
the ability of families to have a fighting chance. In fact, in the
point system that is contained in the bill, families would receive no
points at all--no points at all, none--unless the applicant has
obtained at least 55 points through other elements: employment,
education, language. So much for family values under that system, in my
mind.
In addition, if the applicant meets the 55-point threshold, they
would be eligible for a maximum of 10--a maximum of 10--additional
points; that is out of 100 maximum points. I guess that some who preach
family values don't believe that family should count for more than 10
percent--10 percent.
Now, this legislation also curtails the ability of American citizens
today, permanent residents, to petition for their families to be
reunified here in America.
As I mentioned earlier, there is a family backlog of people who have
applied for legal permanent residency who are claimed by U.S. citizens.
This legislation, as currently drafted, does away with several of the
family categories such as adult children of a U.S. citizen and lawful
permanent residents and siblings of citizens. These categories will be
grandfathered in and dealt with as part of clearing the backlog during
the first 8 years but only if you filed your application before May 1
of 2005. What is the consequence of that? The consequence of that is
over 800,000 people who have played by the rules, applied under the
normal process, didn't come across the border, didn't violate any law,
did the right thing, that all of those who did all the right things but
applied after that date, will not be cleared as part of the family
backlog. They lose their chance under this law.
More importantly, it vitiates--it takes away--the right of the U.S.
citizen to have them claimed because they lose it. They have a petition
pending under existing law, and yet that petition is gone with the
flash of this bill.
So the legislation, as currently drafted, says that if you legally
apply for a visa after May 1, 2005, you have to compete under an
entirely new system. It is an arbitrary date that was picked out of the
thin air.
Let's think of how fundamentally unfair that is. Imagine you are a
lawful, permanent U.S. resident. You have fought for your country, you
have shed blood for your country, and in some cases, you may have even
died for your country. In fact, a noncitizen, a legal permanent
resident of the United States, Marine LCpl Jose Antonio Gutierrez,
originally of Guatemala, was the very first, the very first U.S. combat
casualty in the war with Iraq. Had he not been a combat casualty under
this bill, he would not have been allowed to claim his family. If this
bill moves forward the way it is, these legal permanent residents are
also not only--there are thousands of them in the Armed Forces of the
United States, and they are protecting our airports, our seaports, and
our ports. They risk their daily lives in Afghanistan, Iraq, and other
places around the world to protect us here at home, yet we would do
away with their right to petition to have their sister or their brother
come join and live with them in America. Under this bill, you lose that
right if you file after May 1, 2005. It is hard to imagine that one
would have that right taken away from them.
Here is another case for you to consider. You are a U.S. citizen. You
have paid your taxes. You may have served your Nation. You attend
church. You make a good living. You are a good citizen. You have
petitioned to have your adult child come to America, but you did so
after the date of May 1, 2005. Under this bill, that U.S. citizen loses
their right. However, those who are undocumented in the country after
May 1 of 2005, they actually get a benefit under the bill. So if you
obey the law, follow the rules, do all the right things, you are a U.S.
citizen, paid your taxes, maybe even served your country in the Armed
Forces, doing everything you should do, you lose your right to claim
your relative under the existing law and be part of the backlog, but
the person who came in an undocumented

[[Page S6505]]

fashion over the border, they actually will get a benefit as of January
1, 2007. It seems to me that the legal permanent resident, the U.S.
citizen, should have at least the same date as those who have not
followed the law and the rules. It is hard to imagine, but it is true.
So these are a few of the shortcomings contained in the bill we are
moving forward. This deal would have prevented my own parents, a
carpenter and a seamstress, from coming to this country. They wouldn't
have qualified under this point system. I would like to think that they
and others whom I have heard about around this Chamber--I have heard so
many stories from my colleagues in the Senate and formerly in the
House, talking about their proud history.
Their parents would not have been eligible to come to this country
under this bill. I would like to think that, on both sides of the
aisle, they have contributed to the vitality of this Nation. I have
listened to so many of the stories of our colleagues, and I know many
of their parents never would have qualified to come to this country
under this bill. It seems to me a new paradigm could have been
structured where family values and reunification have more of a
fighting chance than under the framework agreement that we consider.
The story of the legislation is not finished. We still have the
historic opportunity this week to craft tough, smart, and fair
immigration reform. It is my intention, starting, I hope, later today,
through a series of amendments, to get to the heart of the issues I
have mentioned, to change and to improve this deal. I know many of my
colleagues are committed to the same issues of practicality, fairness,
and family values, and I will work with them to turn this unworkable
deal, in those respects, into sound policy we can all support.
As we have throughout our Nation's long and proud history, I believe
we can create a pathway to the American dream for those who contribute
to our Nation and allow them to fully participate in our economy and
our society. As the President told Congress in this year's State of the
Union speech: Let's have a serious, civil, and conclusive debate, so
you can pass, and I can sign, comprehensive immigration reform into
law.
It is a rare moment, but I agree with the President. Reform is long
overdue. I want to just say that I have the greatest respect for the
Senator from Massachusetts in his advocacy in this regard. I look
forward to trying to--even though he may not be able to support some of
these things as part of his commitment to a grand bargain--change it in
a direction that we can all be proud of. But for him, we probably would
not be on the Senate floor debating this issue today, or in the past,
and I admire him greatly in that respect.
However we got here, from wherever we came, we know we are in the
same boat together today as Americans, and together I hope we can make
this journey a safe, orderly, and legal process that preserves and
fulfills the American dream for all, that upholds the right of U.S.
citizens to seek the reunification of their families. It takes those
who serve our country and who are not U.S. citizens yet and gives us
the right to say: You fought for America, you may have been wounded in
the process. You have done everything we would want of any citizen.
Your right to make a simple claim to have your family reunited for you
will not be snuffed out by this legislation.
If we do that, this process deserves our respect. I hope this
preserves the Constitution, as well as the due process of law that
makes America worthy of fighting for and dying for--the Constitution
and the Bill of Rights. When we seek to erode and undo it, we undermine
the very essence of America's greatness. Those are our challenges in
this debate and also our opportunities.
I yield the floor.
Mr. KENNEDY. Madam President, first of all, I commend my friend from
New Jersey for an excellent presentation, particularly on this issue of
the Grassley amendment, and for also reminding us about the importance
of family in the consideration of our immigration bill.
I think we are going to have an opportunity during the course of the
day to deal with those issues in greater detail, and we will look
forward to that. I think we have made some important progress in terms
of family issues, but I think we have also seen some changes in the
existing law in those issues. And it is important for the American
people to understand exactly the areas we have made progress in and the
areas that we have altered as we deal with this underlying bill.
I wish to take a moment to address the points that are included in
the Grassley amendment, which is the pending amendment. Then I
understand the Senator from New Mexico will be coming down shortly to
offer an amendment that deals with the temporary workers. We will have
an opportunity during the noontime to address that issue. Then,
according to the leadership, we will have the two votes. If there are
side-by-sides, other votes--at 2 o'clock or in the time close to 2
o'clock. I say that for the benefit of our colleagues here.
Madam President, on the Grassley amendment, I think it is important
to understand that people who come into the United States under visas
have to go through extensive background checks before they are granted
visas, and again before they are admitted. We are talking about
millions of visitors, about hundreds of thousands of scholars and
researchers and workers. These are not criminals or terrorists. Anybody
who is a terrorist or criminal is not eligible for a visa.
I will just mention the various crimes that individuals have
committed that have denied them the opportunity to come to the United
States to get a visa: crimes of moral turpitude, such as aggravated
assault, assault with a deadly weapon; aggravated DWI, fraud, larceny,
forgery; controlled substance offenses, such as the sale, possession,
and distribution of drugs, and drug trafficking; theft
offenses, including shoplifting; public nuisance; multiple criminal
convictions, any alien convicted of two or more offenses regardless of
whether the offense arose from a scheme of misconduct; crimes of
violence; counterfeiting; bribery; perjury; certain aliens involved in
serious criminal activity who have asserted immunity from prosecution;
foreign government officials who have committed particularly severe
violations of religious freedom; significant traffickers of persons;
money laundering; murder; rape; sexual abuse of a minor; child
pornography, as well as attempts or conspiracy to commit most of those
offenses.

Those, obviously, who are denied on security-related grounds include
espionage or sabotage; engaging in terrorist activity, and that is
broadly defined; likely to engage in terrorist activity, broadly
defined; association with terrorist activity; representative of a
terrorist organization; spouse or child of an individual who is
inadmissible as a terrorist; activity that is deemed to have adverse
foreign policy consequences for the United States; membership in a
totalitarian party.
All of those ban individuals from coming into the United States. So
if a visitor here has his visa revoked, he should be entitled to
review. This doesn't create a burden on our courts but simply preserves
basic due process. Courts review these cases every day, and we have
heard no evidence of any undue burden on the courts. These cases can be
handled expeditiously.
Immigration judges ordered 220,000 people deported last year. Only 9
percent of these decisions were appealed. We have no abuse in the
system at the current time. So providing review to a few more people
whose visas are revoked won't flood the courts.
Again, we are talking about the mistakes that can be made with the
Department of Homeland Security, as a Member of the Senate, I was put
on the no-fly list by the Department of Homeland Security and denied
the opportunity to even fly out of the Nation's Capital to go back to
my home city of Boston. In Boston, I had the temporary approval by the
Department there, which had to overrule Homeland Security. Despite the
head of the Homeland Security then saying we have cleared that up, it
wasn't cleared up for 3 more weeks, and with the airlines, it was 4
more weeks. If that happens to a Senator, what is happening to other
individuals?
I have given the example of a person in my home State of
Massachusetts

[[Page S6506]]

who was deported. Now the Immigration Service is trying to find that
individual down in Guatemala. It was because of similar names.
So I think, as the Senator from New Jersey pointed out, the system we
have included in the legislation is appropriate. It is not burdensome.
We have had no complaints even during this long period of time. We have
had no complaints from any of those who have been involved in the
system that it is an undue burden, or any complaints from the judicial
system. We have found out that we have 23 different incidents reported
by my own Boston office of individuals who are very substantial
citizens in New England, including a dean of a medical school, who were
put on the list by mistake.
So mistakes happen. All we have in this is a simple process of
review. That process has been outlined and stated by the Senator from
New Jersey, and it should be preserved.
I look forward to not closing off the time to the Senator from Iowa,
but we are trying to move this process along and consider the amendment
of the Senator from New Mexico and then see if we cannot continue to
consider the follow-on amendments. The Senator from South Carolina has
an amendment as well. We will be looking forward to having debate on
his amendment.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Casey). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts.

Iraqi Translators

Mr. KENNEDY. Mr. President, I wish to take a moment to congratulate
the House for moving on the issue of Iraqi translators. I am talking
about translators who have worked for the American Armed Forces in
Iraq. They have to follow a very detailed procedure, and then they get
certified. Most of them have to work on it for more than a year.
These people have been particularly targeted by the terrorists. Their
names are printed in mosques and other places of worship, and if they
are found, they are executed. We have a limitation, I believe, of 50,
and we have taken in 18. Many of these individuals have risked their
lives for American service men and women and this legislation will be a
very small downpayment in terms of their safety and their security. It
is important, and I am hopeful we will be able to address this issue.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New Mexico.

Amendment No. 1169 to Amendment No. 1150

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the pending
amendment be set aside, and I send to the desk an amendment to the
underlying substitute and ask for its consideration.
The PRESIDING OFFICER. Without objection, the pending amendment will
be set aside.
The clerk will report.
The legislative clerk read as follows:

The Senator from New Mexico [Mr. Bingaman], for himself,
and Mrs. Feinstein, Mr. Obama, Mr. Dodd, and Mr. Durbin,
proposes an amendment numbered 1169 to amendment No. 1150.

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 reduce to 200,000 the number of certain nonimmigrants
permitted to be admitted during a fiscal year)

Strike subparagraph (B) of the quoted matter under section
409(1)(B) and insert the following:
``(B) under section 101(a)(15)(Y)(i), may not exceed
200,000 for each fiscal year; or
In paragraph (2) of the quoted matter under section 409(2),
strike ``, (B)(ii),''.

Mr. BINGAMAN. Mr. President, this is an amendment to reduce the
number of visas issued each year under the new guest worker program
that is in this bill--reduce it to 200,000. This is 200,000 new visas
each year which would be permitted if my amendment were to be adopted.
The amendment I am offering is cosponsored by Senators Feinstein,
Obama, Dodd, and Durbin. It is essentially the same amendment I offered
when we had the debate on the immigration bill last year when we were
fortunate to have the support of 79 Senators for the amendment.
Let me talk a little bit about the context of this before getting
into the detail of the amendment. The Kyl-Kennedy or Kennedy-Kyl
substitute amendment allocates 400,000 new guest worker visas per year,
and it has in it also an increase mechanism that allows the annual
allocation to go from 400,000 up to 600,000 per year. After a few
years, presumably, we would be at a level of 600,000 per year from then
on. Workers are allowed to stay for a total of 6 years under this
program. They would work for 2 years--and Senator Dorgan described this
very accurately as part of the debate on his amendment yesterday--and
they would be allowed to work for 6 years; that is, they work for 2
years, leave the country for 1 year, work for an additional 2 years,
leave the country for another year, and work for an additional 2 years,
then leave for good. That is the structure of the system as it now
stands. I can go into whatever details Members are interested in to
explain how the increase mechanism provided for in the law is
structured, but before I get into that, let me just talk about the
larger context.
This bill, the Kennedy-Kyl substitute, contains really three so-
called temporary worker programs which are very distinct, and
individuals can come to our country and work in our country under any
of these three programs.
One program is what I would refer to as the true temporary worker
program, and that is where you bring people in for seasonal work.
Clearly, that is something we have done for a long time. I think the
limit in the law today is 66,000 are permitted to come in each year for
temporary work--to work at resorts or work in some kind of a seasonal
job--and then that 66,000 is then allowed to be increased to reflect
those who have come the previous year or two. In fact, I think the
estimate I have seen is that there are about 135,000 people in our
country each year doing that kind of temporary seasonal work.
This bill, this Kennedy-Kyl substitute, would change that 66,000 to
100,000. It would contain an increase mechanism similar to what is in
this new guest worker program, and so the 100,000 would eventually go
to 200,000 after a few years. As I understand it now, there is also
written into the law, written into the substitute, a provision that
says the 200,000 number for the seasonal guest workers does not include
people who have been here under that same program working in any 1 of
the previous 3 years. Obviously, you have the potential for a great
many more than 200,000 to come in as seasonal temporary workers under
that provision.

Another separate provision of this substitute bill which allows for
temporary workers to come in is the agricultural workers program. I
point out to my colleagues, that is without limit. There is no cap on
that. There is a tremendous opportunity for people to come into this
country and work in agriculture. We do not have numerical limits on
that, so, to anyone who says we are not going to be allowing people to
come into the country to do the work Americans don't want to do, the
truth is, if they want to do work that is related to agriculture, we
can bring them in, in whatever numbers, without any limits being
imposed by this law.
The third opportunity to come in as a so-called temporary worker is
this new guest worker program. This is a little bit of a misnomer, when
we talk about temporary worker, because these are permanent jobs that
we are bringing people in to fill. People need to understand that.
These are not temporary jobs, these are permanent jobs. We are bringing
people in for a temporary period, or a designated period of 2 years,
three different times, to do the work.

[[Page S6507]]

But these are not temporary jobs in the same sense that a seasonal job
is a temporary job--that you have it for a few months and then the ski
resort closes and you no longer have a job. That is not the kind of
jobs we are talking about.
As I see it, there are several fundamental problems with this guest
worker program as it is currently constructed. The most significant
problem is the bill anticipates letting way too many people come into
this country in a new, untested program. This is a new program. There
is nothing in the current law that is comparable to this new guest
worker program that we are talking about. The amendment I and my
cosponsors are offering tries to restrict the size of the program until
we find out how it is working, until we figure out whether this makes
sense. Let's not build into the law automatic increases in a program we
have never tested before. Let's not start this program at 400,000 and
have it escalate up to 600,000. The amendment I am offering is trying
to bring down the size of the program.
Another problem with the program is the structure, and I described
that. This idea we are going to bring people in for 2 years, kick them
out for 1 year, bring them in for 2 years, kick them out for 1 year, is
not good for the employee, obviously. That is not good for the
employer, obviously. It is not a realistic expectation. I think anyone
would have to recognize that is not a good structure.
The third problem I have with the bill is there is no real avenue for
any of these individuals we are talking about to ever gain legal
status, so we are creating a group of workers who have come to this
country and worked for 2 years or 4 years or 6 years, to whom then we
are saying: Your time is up, go home. There is a tremendous likelihood
that we are going to have a lot of people staying over and overstaying
their visas. I think that is unfortunate.
That is a change from the previous legislation. We passed that bill
Senator Kennedy brought to the Senate floor last year and I supported
it. There was a much more realistic opportunity for people who came in
under the guest worker program to pursue legal status at some time, so
the incentive to essentially go underground to try to avoid deportation
was not the same in that bill.
I think the most significant thing we can do at this point to try to
correct the most significant problem with this guest worker program is
to reduce the number. Let me show a couple of charts, for my colleagues
to understand what we are talking about.
The current bill calls for 400,000. The first year this law is in
effect, 400,000 are permitted to come in under this guest worker
program. Then there is a complicated process if that total is reached.
If there is a demand to bring in 400,000 during the first half of the
year, then there is an automatic increase of 15 percent. So you bring
in an additional 15 percent at that point, which is 60,000, so you are
at 460,000. You start the next year at 460,000, but you add another 15
percent to that immediately, and if there is another demand, using up
all of those, you can go up another 15 percent.
In any event, it rachets up pretty rapidly. It says if the 400,000 is
not used up until the second half of the year, then there is only a 10-
percent increase each year from then on.
What we have done on this chart--and I think people need to try to
understand this--is we have tried to show with this graph how many so-
called guest workers under this program--not under the other two, not
under the ag workers program, not under the seasonal workers program
but under this program--how many people we would actually have in the
country as the bill is currently written. You would have 400,000 the
first year; the second year you would have 840,000 because you would
have the first 400,000, plus the second 400,000, plus the increase, 10
percent. You would have 924,000 the third year, you would have 1.4
million the fourth year, you would have 1,958,000 the fifth year, and
this keeps going up so, by the eighth year, you would have 3,158,000
people in the country legally working under this program.

There is a very important assumption built into this chart. The
assumption is that everybody who comes in under this program goes home
when their visa says they ought to go home; nobody overstays his or her
visa. If, in fact, that assumption is false and people get to the end
of their 6 years and say: Wait a minute, I am not ready to leave the
United States, I am staying, and they stay here on an undocumented
basis at that point and overstay their visa, then they go on top of
these numbers.
So you have a tremendous number of new people. This is a brandnew
program. We have never had this program before. I think that is too
large.
Let me show what the amendment I am offering does. I did not support
Senator Dorgan's proposal to eliminate the guest worker program
entirely. I think there is a legitimate argument that some number of
guest workers is appropriate to bring into the country to do some of
the work. But as I say, this is a brandnew program and we ought to do
this in a judicious way and feel our way along. In this proposal that I
have put forward, it says let's bring in 200,000 the first year and
200,000 each year after that and see how this goes. We can make
judgments and we can alter this in future years. Congress meets every
year, so we can alter this if we decide that is not the appropriate
number. But let's start with a number that we think makes sense.
Even at that very substantial reduction, we would wind up in the
eighth year with 1.2 million people in the country under this program,
legally working as guest workers. It is not that there are going to be
200,000 people working here each year, there are going to be 1.2
million people working here each year. Again, the assumption is there
will only be 1.2 million, assuming everyone goes home when their visa
says they ought to go home, which I think is a fairly questionable
assumption.
That is what the amendment does. I think it is a far better way for
us to proceed than what the underlying bill calls for. I know there are
some who are coming forward and arguing that this is terrible, that we
are not going to have enough people to keep the economy running, that
there are going to be all kinds of jobs going unfilled. I point out
again that there are other ways people can come to our country and
obtain employment. They can do so under the seasonal workers program,
which is being increased very substantially under the bill. They can do
so under the ag workers program, which has no limits on it at all. Of
course, there are other ways that people can immigrate into our country
that are provided for in the legislation as well.
This is an amendment that I think makes all the sense in the world. I
was very pleased we had such strong support for it when we offered it
in the previous debate that we had on immigration last year. I hope we
can adopt it again this year. By doing so, I think we begin to bring a
little more judiciousness to this process if we are going to start a
brandnew program.
Let me also point out there is provision in this legislation for a
commission to be established to review how this new program is working
and to make recommendations back to the Congress. I think that is
entirely appropriate. To me, that is another reason why we should not
be building in automatic escalators in the size of this program. We
should not be starting with a program that is so large as 400,000 and
going up to 600,000. We should start at 200,000 and keep it right there
until we get those recommendations and find out what we think at that
point about whether to increase the size of the program or terminate
the program or whatever steps we might take at that point.
That is the basic gist of my argument. I hope colleagues will support
the amendment. I think it is a meritorious amendment. I think it will
improve the legislation substantially.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I commend my friend from New Mexico for
his thoughtful presentation on this issue. As he mentioned, he offered
this amendment last year and it passed overwhelmingly. I expect there
will be a similar result today.
I appreciated the fact in our earlier debate he understood we need
this temporary worker program. All of us want to have a strong border,
but we do understand there will be pressure on the

[[Page S6508]]

border, and we will either have a front door or a back door, the back
door being for those who are going to try to penetrate that border, or
the front door so they can come in and have a temporary worker program.
The real issue is the size of this program. The Senator has mentioned
the other provisions that are included in the legislation. We have the
longstanding temporary worker, the H-2B, which is about 100,000
workers. Those are the seasonal workers, for the most part, who work in
many of the resorts during the summer or wintertime and are truly
temporary workers. They are entitled to bring their families. They do
not. That program has been very modestly expanded over this program.
You have the H-1B, which is sort of high tech, which is 150,000--it
will go up to 180,000; and the ag jobs, which is 40,000 to 60,000.
The reason the 400,000 was reached is that is the general estimate,
although there are some a good deal higher, of individuals who
penetrate now. I think it is safe to say it is probably closer to
500,000 undocumented who come across the border and are able to gain
employment here. So the 400,000 represented an evaluation, an estimate
from results of hearings. That is how we built that in. Then, in the
legislation, there is the possibility it can either go up or go down.
The Council of Economic Advisers thinks we need probably close to a
million new jobs every year.
I think what we, in our considerations, were thinking about
establishing is some panel that would be made up of workers as well as
members of the business community and people who could help give an
assessment, and make a recommendation of what that number would be.
I think that is probably the best way to go in the future. But that
is not where we are today. Where we are today in the bill is 400,000
and the possibility of an escalator to go up or an escalator to go
down.
The Senator says: Let's start off in this area, we are not sure how
this program is going to work. Let's start off with just 200,000, watch
it very carefully, find out if the kind of mix we have with this and
with the point system we have been able to develop is going to function
and work, whether after 2 years people will really go back or they will
not go back.
I think he makes a strong case. I did not support this last year. I
feel sort of compelled--under the agreements we have made earlier in
terms of the totality, I feel the same restraint this time. But I
commend him for the thoughtful presentation. It was thoughtful last
year, and it is thoughtful this year. He makes his points very
effectively. It ought to be considered by the Members. I do not, as I
mentioned, tend to support it, but I certainly would ask our colleagues
to look at it very closely because it is a thoughtful presentation. He
raises some very important and worthwhile points.
I thank him also for coming over here and offering this amendment. I
think the time has been set for voting at 2 o'clock.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Menendez.) The senior Senator from
Pennsylvania.
Mr. SPECTER. Mr. President, it is obviously hard to calculate what is
the precise figure among the Senators who crafted the so-called ``grand
compromise.'' We thought the figure we had here was correct. We are
aware that the Senator from New Mexico offered an amendment last year
and was successful in reducing the amount to 200,000. But I think
either figure would be understandable. But I will stand by what we have
worked out in the bill.
In arriving at the compromise legislation which has been proposed,
there was a great deal of give-and-take. While we are facing a
tremendous number of objections from both sides of the political
spectrum, for every point someone does not like, there were concessions
made by others for some points the person does like. There is no doubt
that we are facing very substantial criticism in the initial stages of
the consideration of this bill. The criticism came before the bill was
even printed. The criticism has continued after it was printed, before
people had a chance to read it. There is a great deal of analysis and
consideration being undertaken at the present time.
I think Senator Lott has expressed the issue very succinctly; that
is, do we have a problem? The answer to that is, categorically, yes, we
have an enormous problem. We have a border which is porous. We have
anarchy in the way the immigration system works at the present time.
People are complaining that it is amnesty. In my legal judgment, it is
not. It is not amnesty because people have to pay a fine, people have
to have a job, people have to contribute to our society, people have to
pay their taxes, people have to learn English, people go to the very
end of the line, are not even considered until they have been here 8
years, and it may take as long as 13 years. That is not amnesty.
But the fact is that these 12 million undocumented immigrants are
going to be here whether we pass this bill or not. The only difference
will be whether they will be here in a way where we regulate their
presence here. If we have a registration system, we will have an
opportunity to identify people who ought to be deported. It is not
practical to deport 12 million people. But when we cull through the
list, we may find those who should be deported, if in a practical sense
they can be deported. To deport someone, you have to take them into
custody. Then you have to have detention facilities, and then you have
to have judicial proceedings. It is a total impossibility to think of
deporting 12 million undocumented immigrants, but at least we would
move toward regulation.
As part of the comprehensive system, we are structuring border
security as outlined by the Secretary of Homeland Security, Michael
Chertoff. The entire border would be covered either by fences, by
obstacles, or by drones. So the entire border would be covered, fences
covering the populated areas.
It is not possible to structure border security so that no one slips
through, but by moving toward employer verification, we will be
eliminating the magnet. Until we have a system to positively identify
who is legal and who is illegal, you cannot impose tough sanctions on
the employers. But now that we have that system, those tough sanctions
can be imposed, and that has the objective, a realistic objective, of
eliminating the magnet.
There is great distrust, and understandably so, as to whether the
enforcement procedures will occur. Bear in mind that there are
preconditions to having the guest worker program or the processing of
the 12 million undocumented immigrants.
I think it is fair criticism that since the 1986 legislation, no
administration, Democratic or Republican, has enforced the law. There
are ideas which are now being formulated to move to a very prompt
appropriation immediately after the bill is passed--if and when it is
passed--so that we have a structure here.
Senators Lott's first question is: Do we have a problem? Yes. Is this
bill an improvement? Yes. Again, categorically. Will there be a better
chance at a better time to improve the system? Categorically, no. If we
do not get it done at this setting, as we are moving ahead, hopefully
shortly after the Memorial Day recess, then we are off into the
appropriations process, and next year is an election year. So that if
not now, if not never, certainly not soon.
When we come to the Bingaman amendment, as I say, my preference is to
stick with the bill. A certain understanding has been reached among
those who were parties to the negotiations of the structuring of the
bill to stand together on it. If the Bingaman amendment is adopted,
then it is my hope we will retain the adjustment features so that if we
find that more or fewer guest workers are necessary for our economy,
realizing they perform a very vital function in so much of our economy,
in the restaurants and the hotels, on the farms, landscaping, so many
facets--talked about that yesterday with the hearings which we held in
the Judiciary Committee last year, cited the economists who testified
about the importance of immigrants in our economic structure--I hope we
will at least retain the so-called adjustor factors so we can make
adjustments should that become necessary.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Mr. President, first of all, let me take a moment to
acknowledge the senior Senator from

[[Page S6509]]

Pennsylvania, the Senator from Arizona, the Senator from Massachusetts,
Mr. Kennedy, for their leadership and Herculean efforts on this
legislation. In the spirit of praise I heard just a moment ago from the
Senator from New Mexico on bringing judiciousness to this process, I
rise in opposition to amendment No. 1166 offered by the very
distinguished Senator from Iowa, Mr. Grassley. The amendment would
eliminate judicial review of removal proceedings where revocation of a
visa is the sole ground for removal. That may sound technical and
complex, but the amendment is actually quite simple in the way it
works. It means that if the State Department should wrongly decide to
revoke a visa, whether through bureaucratic error or misjudgment, and
then the Department of Homeland Security tries to remove you from the
United States, you have no opportunity to have your case heard in
Federal court; the case ends at the Board of Immigration Appeals.
It means a dissident lawfully admitted to the United States on a
visitors visa could find himself giving a speech one day and then the
very next day learn the Department of State revoked his visa based on
false information provided by his home country. The dissident may even
risk punishment upon return to his home country. But there will be no
means to fight his removal in Federal court. The amendment means that
when DHS invokes the ideological exclusion provision which allows the
Government to exclude anyone from the country who endorses or espouses
terrorism or persuades others to support terrorism, there is no
judicial check to make sure that is, in fact, what is going on, and
that great power is not being abused.
As U.S. district judge Paul Crotty wrote in an opinion last year,
rejecting the Government's efforts to exclude a Swiss citizen who had a
visa to teach religion, conflict, and peace-building at Notre Dame
University.

While the Executive may exclude an alien for almost any
reason, it cannot do so solely because the Executive
disagrees with the content of the alien's speech and
therefore wants to prevent the alien from sharing this speech
with a willing American audience.

That is exactly the kind of case which would be barred by the
amendment we are debating. What is the basis for this change? How can
it be that review by a Federal court under these circumstances is such
a serious burden to the Government that it must be eliminated? Are the
courts clogged with these cases? Is it too much to require DHS to
submit to a modicum of checks and balances before it exerts its power
to expel someone under these circumstances? Judicial review of visa
revocation is already severely limited--so severely limited, in fact,
that the subject of this amendment is the only area remaining in which
somebody can still seek judicial review of a removal order.
Too often, we are obliged to defend basic principles of American
democracy--in other circumstances, the great writ of habeas corpus;
here, the core principle of separation of powers and judicial review.
We should not trample lightly on our founding principles.
I have said over and over that the cornerstone of any comprehensive
immigration package must be strengthened security at our borders,
enhanced workplace enforcement, and a sensible, practical solution for
the 12 million people already living illegally in this country. But
strong security means smart security, and smart security must include
respect for the administration of justice, including our great American
system of checks and balances, and a realization that sometimes the
Government gets it wrong.
This amendment, by further limiting the authority of Federal courts
to hear removal cases, goes too far. I ask my colleagues to oppose it.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. NELSON of Florida. 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. NELSON of Florida. Mr. President, I ask unanimous consent to
speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Florida is recognized.
(The remarks of Mr. Nelson of Florida are printed in today's Record
under ``Morning Business.'')
Mr. NELSON of Florida. Mr. President, I yield the floor and suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BROWNBACK. 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. BROWNBACK. Mr. President, I rise to speak on the immigration
bill, the underlying amendment.
I am delighted we are taking up this issue dealing with immigration.
I am glad we are debating this important issue in the Senate and that
the majority leader has dedicated 2 weeks to do this bill. I think we
need at least that period of time to delve into this issue. I have
worked on it before. I have served on the Judiciary Committee. It is a
tough topic, and it needs a lot of debate.
Immigration is an issue which has seized Americans across the Nation.
People are torn trying to balance two fundamental American principles:
one, of being a rule of law nation; and, second, trying to be a
compassionate society. Here I think we do not need to mitigate either
of these desires, that we can do both of them. But it is difficult and
the details matter.
America is a nation of both justice and compassion. The two are not
mutually exclusive. But reconciling the two is sometimes difficult, as
we find in this debate.
Currently, we have, we think, somewhere around 12 million illegal
immigrants in our country. The number is growing. In 1987, there were
roughly 4 million undocumented immigrants in our country; in 1997,
there were roughly 7 million; and today, in 2007, there are somewhere
around 12 million. In addition, according to the Pew Hispanic Center,
annual arrivals of illegal immigrants have exceeded the arrival of
legal immigrants since 1985. That is not the trend we want.

The reality is our immigration system is seriously broken and needs
to be fixed. Some people think the solution is to grant undocumented
immigrants amnesty as we did in 1986, but that won't work. Others think
the solution to the problem is to simply enforce the laws we have and
kick everyone out. We have taken a serious look at this option, and
although our enforcement efforts over the last year have dramatically
increased, I do not believe this answer alone will work either.
The office responsible for detaining and removing illegal immigrants
is the Office of Detention and Removal, DRO. It is a division of U.S.
Immigration and Customs Enforcement, the largest investigative agency
in the Department of Homeland Security. You may be surprised to know
that the DRO is actually quite large, despite the relatively small
impact they are able to have. DRO includes 6,700 authorized employees,
including nearly 5,300 law enforcement officers and 1,400 support
personnel. To put this in perspective, the number of DRO law
enforcement officers is just under half as large as the number of FBI
special agents. With these resources in 2006, ICE, Immigration and
Customs Enforcement, removed 187,513 illegal aliens from the country--a
record for the agency and a 10-percent increase over the number of
removals during the prior fiscal year. If you do the math, though, that
works out to roughly 28 illegal aliens deported per DRO employee per
year or 35 deportations per law enforcement officer per year. At that
pace, if we shut down the border to a point at which no one crosses
illegally, and successfully end 100 percent of the visa overstays and
double the number of DRO agents, then it will take us 25 to 30 years to
deport the estimated 11 million to 13 million illegal aliens who are
currently in the United States.
As a matter of national security, we can't afford to wait 30 years to
know who is in our country illegally. For the sake of our national
security and our Nation's future, we need to solve the immigration
problems facing our Nation now. The comprehensive bill before the
Senate goes a long way toward

[[Page S6510]]

enabling us to fix our immigration system and the problem of illegal
immigration. I might point out that people are not opposed to
immigration, they are opposed to illegal immigration, and we need to
get the legal system to work and fix the problems in it. I believe we
need a multifaceted approach to the complex immigration problem we are
facing, and the compromise bill before the Senate now will enable us to
take significant strides toward fixing the problem.
That said, there are certain aspects of the bill I wish to change. I
look forward to the opportunity to do so through the amendment process
and to see whether I can support the final product.
With respect to solving the immigration problem, we must first and
foremost secure the border, and this bill appears to do that. Section 1
of the bill ensures that we don't repeat one of the biggest mistakes of
the 1986 amnesty of implementing immigration reforms without increasing
border and worksite enforcement. The triggers in section 1 require the
DHS Secretary to certify in writing the following border and worksite
enforcement measures are funded, in place, and in operation before--
before--initiating a guest worker program or issuing Z visas to current
undocumented immigrants. These are the triggers: 18,000 Border Patrol
hired; construction of 200 miles of vehicle barriers and 370 miles of
fencing; 70 ground-based radar and camera towers along the southern
border; the deployment of 4 unmanned aerial vehicles and supporting
systems; ending catch and release; resources to detain up to 27,500
aliens per day on an annual basis; the use of secure and effective
identification tools to prevent unauthorized work; and the receiving,
processing, and adjudication of applications for Z status.
I go through the details because the details really matter in this
bill.
In addition, the bill authorizes enhanced border enforcement,
including a national strategy for border security, 14,000 new Border
Patrol agents by 2012, doubling the current force; 2,500 new Customs
and Border Protection officers by 2012; 3,000 new DHS investigators by
2010; 24,000 new detention beds by 2010; enhanced surveillance, using
unmanned aerial vehicles, as I mentioned; cameras, sensors, satellites,
and other technologies.
That is not enough for just taking care of the border. We also have
to go to the workplace. Most people are attempting to enter the United
States illegally to work. I think we have to focus on what we do at the
workplace. I think we need to implement a smart worksite enforcement
system, smart and tough. The primary reason for illegal immigration, as
I stated, is employment. If we eliminate a person's ability to
unlawfully gain employment, then we will dramatically reduce the
incentive for illegal immigration. This bill includes several measures
that enhance our ability to enforce immigration laws at the workplace:
increasing penalties on employers who knowingly hire illegal
immigrants; requiring DHS to issue a tamper-resistant work
authorization document with biometric information; allowing the
Commissioner of Social Security to share information with DHS so they
can go after those who use fraudulent Social Security cards to gain
employment; creating an employment eligibility and verification system
that requires employers to electronically verify a prospective
employee's work authorization.
The robust worksite enforcement system included in this bill fixes a
huge hole in our current system and should curtail the use of false
documents to fraudulently obtain employment.
Now let's look at the immigration system reforms. The most
significant immigration reform this bill makes is the implementation of
a merit-based immigration system--and this is a big shift--to choose
the best and the brightest of those coming into our country. This
doesn't mean we should only allow rocket scientists or brain surgeons,
but education is and should be a factor. The merit-based system under
the bill does that. It sets up a system in which immigrants can earn
points in four categories: education, employment, English proficiency,
and family.
In addition to the merit-based system, this bill ends chain migration
for extended family, while preserving family unification for the
immediate family. I think that is an important distinction, that we
want family reunification for immediate, nuclear family, but we don't
want the chain migration system for extended family members. This is an
important change.

I am one of the staunchest supporters of family in the Senate. I
don't think our immigration system should blindly favor, though, non-
nuclear families such as siblings and adult children over skilled
workers who are coming to apply their trade and contribute to our
economy. It seems to me this is an appropriate balance. Throughout this
bill, what we are trying to accomplish is an appropriate, workable
balance for the good and the future of this Nation.
On the temporary guest worker program, once we are able to secure the
border and implement worksite enforcement enhancements, we need to
reform our immigration system to create sufficient legal means for
well-meaning workers to come to our country and to work. The temporary
guest worker program in this bill does that, while at the same time
protecting American workers and wages by: requiring employers to
advertise jobs to U.S. workers first; requiring employers to advertise
pay, a wage equal to that of an average wage for the particular job or
industry, particular in that region of the country; and prohibiting a
temporary guest worker from working in a county that has 7 percent
unemployment or higher.
I think there are some important changes that need to be made in the
bill. As I have said, the compromise bill before us does a lot of good,
but I think it is far from perfect and needs improvement.
To give some examples, section 601(h) of the bill gives certain
immigration benefits to undocumented immigrants who seek
``probationary'' status, and states that an undocumented immigrant can
obtain no probationary benefits until the alien has passed all
appropriate background checks, or until the next business day,
whichever is sooner. So you have a 24-hour check period. That is
insufficient, if they want to look into the background of an individual
seeking this probationary status. I will seek to change that particular
provision. The impact of this provision is that 12 million or more
undocumented immigrants could receive lawful status, the right to work,
and other such benefits even if a background check cannot be completed
in time.
I think the problems with this provision are significant and obvious.
First, in a post-9/11 world, it is misguided at best and dangerous at
worst to grant millions of people unlawfully present in the United
States lawful status, even if a background check has not been
completed. That is not wise. Second, there is no evidence that the
Department of Homeland Security is capable of conducting cross-
departmental and cross-governmental background checks, let alone a
million of them, or millions of them, in a 24-hour time period. Third,
many records relevant to a background check are not electronic and/or
are not in possession of or otherwise accessible to the Federal
Government, suggesting that more than one business day may be required
for a thorough check, and a thorough check we must do. This is an
important issue with potentially grave consequences for our national
security.
I have filed an amendment to change this provision so no one would
receive any immigration benefits without passing a background check. I
would urge my colleagues to support this amendment.
In addition, I think the bill should require followup background
checks when Z visa holders apply to extend their visa beyond the
initial 4 years. As the bill is drafted, it leaves that decision to
perform a background check up to the Secretary of Homeland Security.
I think we need to be able to have removal proceedings for ineligible
Z visa applicants. Section 601(d) of the bill lays out certain grounds
of ineligibility for a Z visa, which include multiple criminal
convictions, controlled substance trafficking, trafficking in persons,
and even terrorist activity.
The very same section also states:

Nothing in this paragraph shall require the Secretary to
commence removal proceedings against an alien.

[[Page S6511]]

The obvious question is: Why not? Why should DHS not be required to
immediately begin removal proceedings against someone who is ineligible
for a Z visa because they are a criminal or a terrorist? I think DHS
should be required to begin removal proceedings or at the very least
take steps toward removing such people from the country.
The two main reasons for providing undocumented immigrants the
ability to obtain a Z visa are to separate those who are here with good
intentions to work and support their families from those who intend to
do us harm; and second, to create a system where people have a legal
status. In order to successfully do this, this provision needs to be
changed so when an individual is found to be ineligible to remain in
the country legally under this program, they are removed.
In conclusion, I look forward to continuing this debate on this bill
on these issues I have identified and others to strengthen this bill.
As many Members have said, this bill is not perfect and can certainly
be improved in ways I have noted and in others. But we can't use the
bill's imperfections as an excuse for doing nothing for a system that
is clearly broken.
I look forward to offering these amendments to improve the bill, and
I look forward to hearing some of the ideas my colleagues in the Senate
have as well. At the end of the day, I hope we can pass a bill the
President can sign, so we can say we did something to improve America
by enacting immigration legislation that secures our borders, restores
respect for our laws, and creates an immigration system that works.
Mr. President, I yield the floor.
Mr. OBAMA. Mr. President, I ask unanimous consent that at 2:20 p.m.
today, there be 4 minutes of debate prior to a vote in relation to the
Bingaman amendment No. 1169, with the time divided as follows: 2
minutes under the control of Senator Bingaman, and 1 minute each under
the control of Senators Kennedy and Specter or their designees; that
without further intervening action or debate, the Senate proceed to
vote in relation to the amendment, with no second-degree amendment in
order prior to the vote.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. OBAMA. Mr. President, I wish also to speak to the bill.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. OBAMA. Mr. President, last year, I spoke at one of the marches in
Chicago for comprehensive immigration reform. I looked out across the
faces in the crowd. I saw mothers and fathers, citizens and
noncitizens, people of Polish and Mexican descent, working Americans,
and children. What I know is these are people we should embrace, not
fear. We can and should be able to see ourselves in them.
I do not say that to diminish the complexity of the task. I say it
because I believe that attitude must guide our discourse. We can and
should be able to fix our broken immigration system and do so in a way
that is reflective of American values and ideals and the tradition we
have of accepting immigrants to our shores.
I think the bill that has come to the floor is a fine first step, but
I strongly believe it requires some changes. I am working with others
to improve it.
In approaching immigration reform, I believe that we must enact
tough, practical reforms that ensure and promote the legal and orderly
entry of immigrants into our country. Just as important, we must
respect the humanity of the carpenters and bricklayers who help build
America; the humanity of garment workers and farmworkers who come to
America to join their families; the humanity of the students like my
father who come to America in search of the dream. We are a Nation of
immigrants, and we must respect that shared history as this debate
moves forward.
To fix the system in a way that does not require us to revisit the
same problem in twenty years, I continue to believe that we need
stronger enforcement on the border and at the workplace. And that means
a workable mandatory system that employers must use to verify the
legality of their workers.
But for reform to work, we also must respond to what pulls people to
America and what pushes them out of their home countries. Where we can
reunite families, we should. Where we can bring in more foreign-born
workers with the skills our economy needs, we should. And these goals
are not mutually exclusive. We should not say that Spanish speaking or
working class immigrants are only good enough to be temporary workers
and cannot earn the right to be part of the American family.
With regard to the most pressing part of the immigration challenge--
the 12 million undocumented immigrants living in the U.S.--we must
create an earned path to citizenship. Now, no one condones unauthorized
entry into the United States. And by supporting an earned path to
citizenship, I am not saying that illegal entry should go unpunished.
The path to permanent residence and eventual citizenship must be tough
enough to make it clear that unauthorized entry was wrong.
But these immigrants are our neighbors. They go to our churches, and
their kids go to our schools. They provide the hard labor that supports
many of the industries in our country. We should bring them out of
hiding, make them pay the appropriate fines for their mistakes, and
then help them become tax paying, law-abiding, productive members of
society.
I am heartened by the agreement that we have to put all 12 million
undocumented immigrants on a path to earned citizenship. I applaud
those who worked on this compromise. But there are other parts of the
compromise deal before us that cause me serious concern. Let me briefly
address some of those concerns.
In order to stem the demand for illegal workers, we need a mandatory
employment verification system that is actually mandatory. It needs to
allow employers to check with the Department of Homeland Security to
see that their employees are legally eligible to work in the United
States. This is something I worked on last year. But this year's
version of the employment eligibility verification system would give
DHS too much power to force the screening of everyone working in
America without appropriate safeguards. I will be working with others
to offer an amendment to make this provision closer to what we proposed
last year.
As for the guestworker program in the bill, it proposes to create a
new 400,000 person annual temporary worker program that could grow to
600,000 without Congressional approval. And it expands the existing
seasonal guestworker programs from 66,000 up to 100,000 in the first
year and 200,000 after that. At the end of their temporary status,
almost all of these workers would have to go home. That means at the
end of the first three years, we would have at least 1.2 million of
these new guestworkers in the country with only 30,000 of those having
any real hope of getting to stay. I believe we are setting ourselves up
for failure, and that will just create a new undocumented immigrant
population.
As we have learned with misguided immigration policies in the past,
it is naive to think that people who do not have a way to stay legally
will just abide by the system and leave. They won't. This new group of
second-class workers will replace the current group of undocumented
immigrants, placing downward pressure on American wages and working
conditions. And when their time is up, they will go into the shadows
where our current system exploits the undocumented today.
I will support amendments aimed at fixing the temporary worker
program that Senator Bingaman and others will be offering. And if we're
going to have a new temporary worker program, those workers should have
an opportunity to stay if they prove themselves capable and willing to
participate in this country.
But the most disturbing aspect of this bill is the point system for
future immigrants. As currently drafted, it does not reflect how much
Americans value the family ties that bind people to their brothers and
sisters or to their parents.
As I understand it, a similar point system is used in Australia and
Canada and is intended to attract immigrants who can help produce more
goods. But we need to consider more than economics; we also need to
consider our Nation's unique history and values and what family-based
preferences are designed to accomplish. As currently

[[Page S6512]]

structured, the points system gives no preference to an immigrant with
a brother or sister or even a parent who is a United States citizen
unless the immigrant meets some minimum and arbitrary threshold on
education and skills.
That's wrong and fails to recognize the fundamental morality of
uniting Americans with their family members. It also places a person's
job skills over his character and work ethic. How many of our
forefathers would have measured up under this point system? How many
would have been turned back at Ellis Island?
I have cosponsored an amendment with Senator Menendez to remove that
arbitrary minimum threshold of points before family starts to count and
to bump up the points for family ties.
And at the appropriate time, I will be offering another amendment
with Senator Menendez, to sunset the points system in the bill. The
proposed point system constitutes, at a minimum, a radical experiment
in social engineering and a departure from our tradition of having
family and employers invite immigrants to come. If we are going to
allow this to go forward, then Congress should revisit the point system
in five years to give us time to examine the concept in depth and
determine whether its intended or unintended consequences are worth the
cost of continuing the experiment or whether we should return to the
existing system that allows immigrants to be sponsored through family
and employers.
In closing, we must construct a final product that has broad
bipartisan support and will work. I agree with Senator Brownback that
the time to fix our broken immigration system is now. If we do not fix
it this year, I fear that divisions over the issue will only deepen and
the challenge will grow.
I also believe that we have to get it right. I think it is critical
that as we embark on this enormous venture to update our immigration
system, it is fully reflective of the powerful tradition of immigration
in this country and fully reflective of our values and ideals.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. 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.
Mr. SESSIONS. Mr. President, I inquire, is the pending business the
Bingaman amendment?
The PRESIDING OFFICER. The Senator is correct.
Mr. SESSIONS. Mr. President, I will speak on that. I support the
Bingaman amendment. It is sort of instructive in a number of different
ways for us in the Senate because I don't know how the number 400,000,
for the first year of the program, got accepted as the number that we
would have in the temporary worker program. The temporary worker
program is a new way of doing business that I think has great
potential, although I am concerned about how it can be effectuated in
its details. The temporary worker program is now in addition to the
permanent citizenship track that we have in our country--the track
where you get a green card and then move on to citizenship.
So the temporary worker program is designed to create an opportunity
for people who want to come into America and work for a period of time
but who do not desire or may not be accepted on the citizenship track.
It makes some sense to me. We have had a portion of our State damaged
in Hurricane Katrina, and Mississippi and Louisiana have been severely
damaged; tremendous reconstruction is being done. That created a real
shortage of labor. Anybody can say that area of the country--at least
for a certain period of time--needs additional labor, and temporary
workers could help fulfill that and other needs in the country.
I wish to say that the temporary worker program, as I understand it
in the legislation--remember, it was dropped in Monday night; that is
the first time it has been filed as part of the legislative process in
the Senate, and no hearings have been conducted on it--the 400,000
would be for 2 years. So you would have 400,000 come in year one of the
bill's passage. They would stay for 2 years. The year after the first
group gets here, another 400,000 would come the next year. So it is
800,000, at a minimum, after the first year. So that is a lot of people
who would be coming in on the temporary worker program.
I am not aware that we have ever done any research or gone out and
actually studied how many temporary workers we need. Apparently, the
conferees--this group I affectionately call the ``masters of the
universe,'' who met and came up with this 400,000 number, talked to
some interest groups out here, and they got an idea somewhere about how
many it ought to be. I don't know how they reached that number. I will
say this to my colleagues. Earlier this year, when this proposal was
raised about a temporary worker program and expressed to me in a way
that could actually work, I thought it was a good idea. That is why I
voted--reluctantly--against Senator Dorgan's amendment, because I think
we need a temporary worker program. But when I asked how many, a member
of the Bush administration said 200,000. So now it is 400,000 and over
2 years it becomes, at a minimum, 800,000, and there are accelerators
in it that indicate to us--the way my staff calculated the numbers--and
I think we are fairly accurate--it would be, in 2 years, almost 900,000
temporary workers alone, not including their family members. So I am
not sure that is correct. Professor Borjas at Harvard, himself a Cuban
refugee who has studied immigration more deeply than anyone in the
country, I would suspect, has written one of the more preeminent books,
``Heaven's Door,'' that deals statistically and quite methodically with
immigration and its consequences and how it works out.
It is calculated that the low-income workers in America have received
an 8-percent reduction in their wages as a result of a large amount of
immigration. So there is no doubt that more and more immigration has an
increasingly adverse impact on the wages of hard-working American
citizens. I don't think anybody can dispute that. Where did this come
from--the 400,000--really 800,000--really almost 900,000? Where did
that number come from? I don't know.
Professor Borjas, who is a part of the Kennedy School at Harvard--
perhaps Senator Kennedy needs to meet him sometime--Professor Borjas
said in his opinion, 500,000 immigrants a year is the right number. I
don't know what the right number is. He is a Cuban immigrant. He came
here as a young man fleeing the oppression of Castro. That is what he
says.
Where did this number 800,000, almost 900,000 come from? Actually, I
think it kicks in with an accelerator. In the outyears, it goes up even
10 to 15 percent a year. It is complicated to read. We just haven't had
much time to figure it out.
I think the deal is set up, actually. I think the people who wrote
the bill knew we were not going to approve 400,000 people a year and
800,000 over 2 years--that is in the country at a given time, 800,000
to 900,000. I think they knew that. Everybody has known all along.
Senator Bingaman has filed his amendment to cut that number in half,
and then we will go to 200,000 a year, and everybody can say we did
something, we made this bill better, so now let's all vote for it.
Regardless, if that is what the deal was about, I suggest to my
colleagues that certainly the Bingaman amendment is a move in the right
direction. Until we have some very good economic data that shows this
country needs a lot more than 200,000, we ought not to be doing it
because, remember, the 12 million people we see out here today who are
here illegally and those who are here legally are not going to be made
to leave America under the amnesty we have here.
If someone came in December 31 of last year, they would be able to
stay in this country. So now we are talking about, on top of all of
that, on top of the 1 million people who come into the country with
green cards that we give each year, that permanent track, we are
talking about another track for temporary workers which is in addition
to AgJOBS, the agricultural and seasonal workers. So this is a big
number.
This bill could be two times plus the current rate of legal
immigration into America. I don't think the average

[[Page S6513]]

American would believe, when we are supposed to reform this broken
immigration system, that we would be creating a system that would
double the number of people legally coming into the country because
even though we certainly hope any legislation that passes would reduce
somewhat the number of illegal entries, we know we will still have
illegal entries on top of that.
This probably is a very easy vote for colleagues to vote for the
Bingaman amendment. I don't see a reason not to do so. I am not aware
of any economic study or objective analysis that says we need these
kinds of large numbers of immigrants.
Professor Chiswick at the University of Illinois in Chicago testified
before the Judiciary Committee, of which I am a member, when we brought
up this issue last year. He cautioned strongly that a large flow of
low-skilled workers will pull down the wages of American workers. Alan
Tonelson, who wrote about a number of job categories from 2000 to 2005,
said wages of workers have not gone up, that they actually have gone
down, and in each one of those areas, more than half the workers were
American citizens.
This is a matter we ought to be careful about. I believe 200,000 is
more than adequate based on what I know. And I support the Bingaman
amendment.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MARTINEZ. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MARTINEZ. Mr. President, I rise to speak in opposition to the
Bingaman amendment. The idea of 400,000 temporary workers per year was
not just pulled out of thin air, but it is based on the estimates of
what is needed on a yearly basis to meet the needs of our economy. It,
in fact, parallels what takes place each and every year as
approximately that many illegal workers cross our borders.
Much has been said about whether there is a need for a workforce. I
believe there is. In my home State, the people who are more adamant in
pursuing a bill on immigration reform are those very employers who
cannot seem to find enough workers to fill their needs. They are in the
hospitality industry, the tourism industry, our attractions, theme
parks. They are also in agriculture, as well as home construction,
which is a huge part of Florida's economy. All of those people seem
hard pressed to have enough people available to do the work that is
waiting.
So this is a number that was derived according to the Pew Hispanic
Center in a March 2005 survey of the migrant population which suggested
a group of about 500,000 a year. We think it is a good idea from that
standpoint. It is a legitimate number. It is based on the studies of
what our needs seem to be.
At the end of the day, it is about supply and demand. It is about the
issue that there is a workforce available to meet the demand for
workers, and that is the problem in which we find ourselves.
But there is another problem, too, and that has to do with the
border. Sure, we are going to do all we can to lessen the likelihood of
illegal border crossings. We are going to have more border agents. We
are going to have electronic surveillance. We are going to have all
that we can build physically and technologically provide, as well as
manpower, to provide for safety at the border.
However, wouldn't it be a good idea if to assist safety at the
border, if to assist and lower the number of illegal entries in our
country, if we disincentivized and legalized the way people come to
work in America? At the end of the day, that is what our 400,000 number
seeks to do. Reducing it to 200,000 would diminish the effectiveness of
our current approach of having a guest worker force that really is
coming here legally.
I hope the Bingaman amendment does not receive the support of the
Senate. I ask my colleagues to stick with the number that is in the
bill.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The 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 ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, I made remarks earlier about my
estimation of the number of persons who would be admitted. I would like
to be a little more precise and explain it this way. In the first year,
under the bill as written, when 400,000 would be allowed in, 400,000
would come for a 2 year period. In the second year, we will have a 15-
percent escalator clause. If that is met, the next year would be
460,000 new workers. So we are talking about at that point 860,000
workers. Then 20 percent of the people who come as temporary workers
are entitled to bring their families.
On average--and the numbers, I think, are undisputed--when a person
is allowed to bring their family, it adds 1.2 persons to the number. So
I calculate in just 2 years, the temporary worker program, as written
in the bill, will allow for over 1 million persons into the country. I
believe that is an honest and fair statement of where the numbers are.
I take seriously these numbers because last year my staff worked
their hearts out and concluded and shocked everybody that the bill as
originally introduced, the McCain-Kennedy bill, would allow 78 million
to 200 million persons into our country in just 20 years when it, at
the normal rate, would be less than 20 million. Some objected to those
numbers. The Heritage Foundation did a similar study about the same
time, and their numbers confirmed our numbers.
At that point, Senator Bingaman offered two amendments and I offered
one and it ended up bringing the number down to 53 million over 20
years to enter legally as opposed to this incredible number. With these
accelerators and this large a number, I think we ought to be very
cautious.
I would also note, again, that the Bingaman amendment does not reduce
the AgJOBS people who would be coming under that track or the seasonal
worker people who would be coming. So a number of areas will not be
reduced. I think it clearly is the correct thing to do to adopt the
Bingaman amendment.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Under the previous order, there will now be 4 minutes of debate on
amendment No. 1169, offered by the Senator from New Mexico, Mr.
Bingaman, with 2 minutes under the control of Senator Bingaman and 1
minute each under the control of Senator Kennedy and Senator Specter.
Who yields time?
The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, let me speak very briefly, and then I
will reserve the last minute to try to close this debate.
This amendment will reduce the number of people who can come into the
country under this new guest worker program. The underlying bill calls
for 400,000, up to 600,000 per year coming in under this new guest
worker program. The amendment I am offering would reduce that to
200,000 per year, maximum. I think that is plenty.
This is an unproven, untested, brandnew program. We need to see how
it is working. We need to see the impact it is having on other wage
rates in the country.
I urge my colleagues to support that amendment. I will reserve the
remainder of my time in case there is someone speaking against the
amendment. Then I will conclude.
Mr. KENNEDY. Mr. President, first, I thank my friend from New Mexico
for his presentation on this issue. He has spoken to those of us who
have been working on immigration about his concerns on the numbers. He
made this

[[Page S6514]]

presentation the last time the Senate considered the immigration bill
and was successful, and I expect he will be this afternoon.
It was very difficult for us to make an exact judgment about the
total numbers. Those numbers were set at about 400,000 because that was
a somewhat lower estimate of people who were coming in here who were
undocumented, and it was also recommended by the Council of Economic
Advisers in terms of the needs of the economy. That is where it is
from.
But he makes a legitimate point--we do not have a real definite idea
about what these numbers ought to be. We looked at the idea that we
establish this program and then try to establish a commission that
would make a recommendation to Congress in terms of the numbers on into
the future. I think that is probably the best way to proceed in the
future.
I will reluctantly oppose the amendment of the Senator from New
Mexico, but I thank him for the thought he has given to this issue. We
will be willing to work with him regardless of how this comes out.
The ACTING PRESIDENT pro tempore. The time of the Senator has
expired.
Who yields time?
Mr. KENNEDY. Mr. President, we are prepared to yield whatever time we
have--except for the Senator from New Mexico.
The ACTING PRESIDENT pro tempore. The Senator from New Mexico is
recognized.
Mr. BINGAMAN. I thank my colleague from Massachusetts and
congratulate him on his leadership in getting us to this point in the
debate. I do hope Members will support this amendment. We had 79
Senators support this amendment when it was offered last year. I hope
we get a strong vote again this year. I think this is the prudent thing
to do. It does not destroy the bill. It does allow for a guest worker
program but a much more prudent one than would otherwise be the case.
I urge my colleagues to support the amendment.
I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Will the Senator suspend?
Does the Senator from Pennsylvania wish to be recognized?
Mr. SPECTER. I do. Mr. President, I believe I have 1 minute of
argument?
The ACTING PRESIDENT pro tempore. The yeas and nays have been called
for, and the impression was at that time that time had been yielded
back.
Is there sufficient second for the yeas and nays? There is.
The yeas and nays were ordered.
Mr. KENNEDY. Mr. President, I ask consent--I think I yielded the time
back before I knew the Senator from Pennsylvania, who is a cosponsor,
desired to speak. It will only be half a minute. I ask unanimous
consent that he be able to speak prior to the time of the vote.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Pennsylvania is recognized.
Mr. SPECTER. May I amend that, Mr. President, to request a full
minute?
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The Senator is recognized.
Mr. SPECTER. Mr. President, the 400,000 figure was decided after a
very careful analysis and consideration. We had hearings in the
Judiciary Committee where prominent economists stepped forward to
testify about the importance of immigrant help. We have an economy
which relies on immigrants for hospitals, for hotels, for restaurants,
for farms, for landscapers, and many lines.
One crucial feature of the Bingaman amendment would take out the
adjustment factor, which is important, where we say the needs rise and
fall. If the Bingaman amendment is adopted--and I know it was adopted
by a large vote last year--at least I hope we will return to provide
for the adjustment factor so we can raise or lower the number depending
upon the needs of the economy.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment. The yeas and nays have been ordered. The clerk will call the
roll.
The assistant legislative clerk called roll.
Mr. DURBIN. I announce that the Senator from South Dakota (Mr.
Johnson) is necessarily absent.
Mr. LOTT. The following Senator is necessarily absent. The Senator
from Arizona, Mr. McCain.
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 74, nays 24, as follows:

[Rollcall Vote No. 175 Leg.]

YEAS--74

Akaka
Alexander
Allard
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Bunning
Burr
Byrd
Cantwell
Cardin
Carper
Casey
Chambliss
Clinton
Coburn
Cochran
Collins
Conrad
Corker
Dodd
Dole
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Grassley
Harkin
Inhofe
Inouye
Isakson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Sanders
Schumer
Sessions
Shelby
Snowe
Stabenow
Stevens
Sununu
Tester
Thomas
Thune
Vitter
Voinovich
Webb
Whitehouse
Wyden

NAYS--24

Bennett
Bond
Brownback
Coleman
Cornyn
Craig
Crapo
DeMint
Domenici
Graham
Gregg
Hagel
Hatch
Hutchison
Kennedy
Kyl
Lieberman
Lott
Lugar
Martinez
Salazar
Smith
Specter
Warner

NOT VOTING--2

Johnson
McCain

The amendment (No. 1169) was agreed to.
Mrs. BOXER. I move to reconsider the vote.
Mr. DURBIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KENNEDY. Mr. President, Senator Grassley was here earlier. I
understand he may be modifying his amendment. Senator Graham is
prepared to move ahead. Then we will alternate back and forth. The
Senator from California, Mrs. Feinstein, is ready to go. I see the
Senator from South Carolina. If he is prepared to proceed, we will go
ahead with his amendment.
The PRESIDING OFFICER (Mr. Sanders). The Senator from South Carolina.

Amendment No. 1173

Mr. GRAHAM. I ask unanimous consent that the pending amendment be set
aside, and I call up amendment 1173.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The bill clerk read as follows:

The Senator from South Carolina [Mr. Graham], for himself,
Mr. Chambliss, Mr. Isakson, Mr. McCain, Mr. Martinez, and Mr.
Kyl, proposes an amendment numbered 1173 to amendment No.
1150.

Mr. GRAHAM. 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 provide for minimum sentences for aliens who reenter the
United States after removal)

Strike subsections (a) through (c) of section 276 of the
Immigration and Nationality Act, as amended by section 207 of
this Act, and insert the following:
``(a) Reentry After Removal.--Any alien who has been denied
admission, excluded, deported, or removed, or who has
departed the United States while an order of exclusion,
deportation, or removal is outstanding, and subsequently
enters, attempts to enter, crosses the border to, attempts to
cross the border to, or is at any time found in the United
States, shall be fined under title 18, United States Code,
and imprisoned not less than 60 days and not more than 2
years.
``(b) Reentry of Criminal Offenders.--Notwithstanding the
penalty provided in subsection (a), if an alien described in
that subsection--
``(1) was convicted for 3 or more misdemeanors or a felony
before such removal or departure, the alien shall be fined
under title 18, United States Code, and imprisoned not less
than 1 year and not more than 10 years;
``(2) was convicted for a felony before such removal or
departure for which the alien was sentenced to a term of
imprisonment of not

[[Page S6515]]

less than 30 months, the alien shall be fined under such
title, and imprisoned not less than 2 years and not more than
15 years;
``(3) was convicted for a felony before such removal or
departure for which the alien was sentenced to a term of
imprisonment of not less than 60 months, the alien shall be
fined under such title, and imprisoned not less than 4 years
and not more than 20 years;
``(4) was convicted for 3 felonies before such removal or
departure, the alien shall be fined under such title, and
imprisoned not less than 4 years and not more than 20 years;
or
``(5) was convicted, before such removal or departure, for
murder, rape, kidnaping, or a felony offense described in
chapter 77 (relating to peonage and slavery) or 113B
(relating to terrorism) of such title, the alien shall be
fined under such title, and imprisoned not less than 5 years
and not more than 20 years.
``(c) Reentry After Repeated Removal.--Any alien who has
been denied admission, excluded, deported, or removed 3 or
more times and thereafter enters, attempts to enter, crosses
the border to, attempts to cross the border to, or is at any
time found in the United States, shall be fined under title
18, United States Code, and imprisoned not less than 2 years
and not more than 10 years.''.

Mr. GRAHAM. Mr. President, as we try to repair a broken immigration
system and replace it with a new system that learns from the mistakes
of the past, I believe it is time for this body and this country to get
serious about enforcing border security violations. After 9/11, the
immigration debate has taken on a different tone. After 9/11, it is no
longer about economic and social problems associated with illegal
immigration. It is about national security problems associated with
illegal immigration. In the Fort Dix, NJ, case, there were allegations
made that six people were conspiring to attack Fort Dix. Apparently,
three of those people came in illegally as children or crossed the
southern border, and three of the people charged with crimes overstayed
their visas. So it is more than securing the border. That is a central
concept to this bill.
Democrats and Republicans are rallying around the idea that the
current system is broken in many ways. The borders are not secure. When
it comes time to verify employment, fraud is rampant. The way you get a
job now is to produce a Social Security card. I could take a Social
Security card out of my wallet and have it faked by midnight. We are
talking about replacing that kind of fraudulent system with tamperproof
identification, which would be a great change in terms of understanding
who is here and why they are here and employing people on our terms,
not theirs.
In the future, after we begin to control our borders, Senator
Isakson's amendment says you can't bring new people into the country in
a permanent fashion until you meet border security triggers. The
employment verification trigger is a great idea. Here is the question I
have: After we do all this, after we spend all this money to secure our
borders and replace fraudulent systems with tamperproof systems, what
do we do to people who try to come across illegally in the future? What
message do we send them and the world?
Here is the message: If you come across our border illegally in the
future, you violate our border security, you are going to jail. No more
catch you and send you back. My amendment would require a mandatory 60-
day jail sentence for the first illegal reentry, up to a year but
mandatory 60 days. If you come back again illegally, no less than 2
years. So everyone needs to know that America is changing its
immigration laws, and we are going to be serious about enforcing them.
If you break our laws, you do so at your own peril, and you will lose
your freedom. That will help us dramatically make sure we don't repeat
the mistakes of the past.
There is another group of people we need to deal with in terms of
illegal reentry that is bone chilling. The amendment would create
mandatory jail time for people who have been convicted of crimes in the
United States, illegal immigrants who have committed violent offenses,
nonviolent offenses, who have served jail time, that if you get
deported--and you are required to be deported after you serve your
sentence--and get caught coming back into this country, you are going
to go to jail, not be deported again.
Let me give an example. Angel Resendiz is known as the railroad
killer. Let me tell you the story of this criminal. In August 1976, he
came across the border illegally. In September 1979, he was sentenced
to a 20-year prison term for auto theft and assault in Miami, FL. He
was paroled within 6 years and released into Mexico as a result of
deportation. Over the next 10 years, he was apprehended and tried in
Texas for falsely claiming citizenship. He did an 18-month prison term.
He was arrested for possessing a concealed weapon in 1988 in New
Orleans and received another 18-month prison term. Every time he was
sentenced, he was deported and came right back to commit another crime.
He got 30 months for attempting to defraud Social Security in St.
Louis. He pled guilty to burglary charges in New Mexico that gained him
an 18-month prison term, and he was paroled in 1992. He was apprehended
in the Santa Fe rail yard for trespassing and carrying a firearm in
1995.
On June 2, 1999, he was apprehended by the Border Patrol for crossing
illegally. Due to a computer glitch, they let him go. Every time he
committed a crime and served a sentence, he was deported, only to come
right back and commit another crime. Once we caught him, all we did was
deport him. He wound up killing two people within 48 hours of being
released by the Border Patrol. If this amendment had been in place for
people such as this guy, once he was found back on our soil after he
served his prison term for a violent crime, he would not have been
deported. He would have gotten a 20-year jail sentence with a mandatory
minimum of 5 years.

So there are people who have been convicted of rape and murder within
the United States who have illegally come across the border, committed
a crime, served their time, been deported, who have come right back,
committed another crime, and nothing happens.
If this amendment becomes law, once you have been convicted of a
violent crime and deported, if you are found in our country, whether
you are committing a crime, that is a crime in and of itself, and you
are going to go to jail for up to 20 years, with a minimum of 5 years.
Now that, to me, is what has been missing when it comes to our legal
system and illegal immigration. It is now time to tell the world--our
own citizens and all those who wish to come here--there is a right way
to do it and there is a wrong way to do it. If you do it the wrong way
in the future, you are going to go to jail.
We need to change the system that would allow nothing to happen to
somebody who had been in our country illegally, who was convicted of
rape or murder, who served their sentence and had been deported, who
illegally comes back into our country. If they cross the border again,
if they cross the border in the future, after committing a violent
crime, they are going back to jail for serious jail time to protect us
against them.
Now, I hope every Member of the body will understand this will make
our effort to reform illegal immigration meaningful. If America does
not care about enforcing its laws in the future, those who want to
violate it will not care either.
So now is the time to start the clock over, learn from the mistakes
of the past and make a national commitment to secure our borders and
deal with those who violate our immigration law in the sternest
fashion. Because this Nation is under siege. After 9/11, illegal
immigration is not just about people coming here to work, it is about
people coming here to commit crimes and do us harm.
So I am very hopeful this amendment will become part of the bill, and
we can say, after this bill passes, we have taken a new approach, a
tough approach, a long overdue approach, that we do care about the laws
on our books and we are going to enforce them, and if you violate the
law in the future by illegally coming across our border, you are going
to jail.
Mr. President, I would like, if I could, at this time, to recognize
my colleague from Georgia, Senator Chambliss.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise in strong support of the
amendment offered by my friend and my colleague, Senator Graham. I am
pleased to be a cosponsor of this amendment.
As I have said before, I believe the agreement we reached among a
bipartisan group of Members of this body is

[[Page S6516]]

a step in the right direction because it gets us to where we are today;
that is, we are debating this critical issue on the floor of the
Senate.
Bringing this issue to the floor of the Senate allows Members of this
body an opportunity to improve upon what has previously been
negotiated. Senator Graham's amendment is an improvement that should be
adopted because it deals with the very most important part of this
particular bipartisan piece of legislation, that is, border security
and interior enforcement.
This amendment creates a more effective deterrent against future
illegal immigration by ensuring that illegal immigrants who are caught
and deported and then return to the United States in violation of our
laws again serve minimum jail sentences. There is nobody who is going
to be deported and gets caught coming back in who is going to escape
going to jail. It is kind of unbelievable to think about that we do not
already have this kind of law on the books today. That is why this
piece of bipartisan legislation is so critically important to the
future of our immigration laws in this country.
Under current law, if an illegal alien is caught entering the United
States, that person is deported. This system is subject to abuse
because an estimated 20 to 30 percent of those illegal immigrants
deported simply return to the United States again in an illegal way. If
that same person illegally reenters the United States again, they are
subject to fines or imprisonment, but currently there is not a
mandatory jail term.
So our Border Patrol agents and our Immigration and Customs
Enforcement agents are faced with the problem of removing the same
illegal immigrants time and time again. This amendment will ensure that
everyone who is deported from the United States and reenters will serve
jail time.
This is a most vital piece of legislation in getting control of our
borders and in ensuring we have efficient and meaningful interior
enforcement. This amendment is critical because it will make sure the
resources of our Border Patrol and Customs agents are not expended on
the same violators again and again.
It also sends a strong signal to everyone in the world thinking about
illegally coming to the United States that we are serious about our
laws and are seriously going to punish those who violate those laws.
I have to say, one problem we have, as we debate this bill and we
talk with folks back home, is the credibility of this body, as well as
the other body, as well as the agencies charged with carrying out the
enforcement. Even though we are charged with oversight, the credibility
of the U.S. Government in enforcing the current laws on the books is
severely lacking.
This is a measure that does put some real teeth into the deporting
and reimporting by criminals. In this particular measure, it does give
our law enforcement officials an opportunity to not only be serious
about enforcement of the law but in a way that is truly meaningful and
will go a long way toward stopping illegal immigrants from coming
across our borders, as well as doing a better job of enforcing our
immigration laws from an interior standpoint.
So I urge all my colleagues to vote in support of the amendment
offered by my good friend and colleague, Senator Graham.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I have a good deal of respect for my
friends from South Carolina and Georgia, but I am somewhat mystified by
this proposal. Let me illustrate why.
First of all, this proposal by the Senator from South Carolina is a
large Federal mandate. Do you understand? It is a large Federal
mandate. Why? Because the Bureau of Federal Prisons now says it takes
up to 45 to 60 days for any individual who is found guilty in the lower
courts to get to a Federal prison. Who pays for that? The local people
pay for that.
First, it takes 45 to 60 days--all of which will be included in this
amendment--which is going to be paid by the local people. So we are
saddling all the local communities, as they start off in their
proposal.
Now, after we hear the speeches about how we are going to be tough on
crime, let's look specifically at the current law and what our bill
does and then what this amendment does.
For the entry of an alien after removal--no deportation or denied
admission, no criminal history--under current law: fine, or not more
than 2 years, or both. Our bill is the same as current law. But the
Graham amendment says: not less than 60 days in jail--60 days in jail.
So we want to let Arizona, California, Texas, New Mexico know that
for all those people whom we all heard about coming back across the
border, they are going to be for 45 to 60 days in the local jails. Is
there any kind of report about how they can handle it? Is there any
sense about whether the jails are crowded? Is there any idea about what
the Governors say? Is there any idea about what local communities say?
No. But this happens to be the fact. There are seven different places
where they put these mandatory penalties in.
Under current law, for the entry of criminal offenders, with three or
more misdemeanors involving drugs, crimes against persons, or both, or
a felony: fine, not less than 10 years, or both. In the bill, S. 1348,
we say, three misdemeanors or one felony gets a penalty of not more
than 10 years in jail. What does the Graham amendment say? New
mandatory minimum creates minimum penalty of 1 year.
So they say you get 1 year. We say you can get up to 10 years. Why
the difference? Because we want the judge to make the decision on the
severity of the crime.
Here, we go down to the prior aggravated felony conviction penalty,
which under current law is not more than 20 years. We, in the bill, say
the penalty can be 15 years, or a fine, or both. Under the Graham
amendment, it is 2 years and a fine.
Once more, we leave it up to the judge. If we have the serious kinds
of penalties, they ought to get the serious time. Who is being tougher
on crime? We are listening to the Senators from South Carolina and
Georgia: We are tough on crime. Who is tough on crime? Come on.
The list goes on. If you are caught, you are a repeater, you are
caught back across the border with a prior conviction for murder, rape,
kidnapping, slavery, terrorism, then the penalty is not more than 20
years. Under the Graham amendment, it is 5 years--the new mandatory is
5 years. Ours is 20 years. We let the judge make that decision, but his
is 5 years.
Now, I have been a strong supporter of sentencing reform from the
very beginning. We have had these enormous disparities on the issue of
sentencing. The Sentencing Commission was supposedly to make an
evaluation about the nature of the crimes taking place in the country,
the space that exists in the various States and Federal institutions
and to make recommendations in terms of what the scope ought to be in
terms of various crimes and what the availability is in these various
penal institutions and how they compare to other kinds of crimes. It
seems to me that is what we ought to be doing with the penalties in
this legislation as well.
Let's listen to Supreme Court Justice Kennedy, who has vigorously
criticized mandatory minimums as unfair and inconsistent with the
fundamental principles of justice. In February, he was very clear in
his opposition to penalties in his testimony before the Senate
Judiciary Committee. He also said mandatory minimums are wrong because
they restrict the ability of judges to strike the best balance between
the goal of consistent sentencing and the need to give judges
discretion to make the punishment fit the crime in individual cases.
That is what we have in the underlying law.
In 2003, Justice Kennedy said:

I can accept neither the necessity nor the wisdom of
Federal mandatory minimum sentences. In too many cases
mandatory minimum sentences are unwise and unjust. The
legislative branch has the obligation to determine whether a
policy is wise.

Now, I am more than willing to establish tough penalties where
appropriate, but we have to draw the line with a rash of mandatory
minimum sentences in current law. We have a new Congress and a new
opportunity to stop the madness with mandatory minimums that impose
long and costly sentences. Moreover, there is no suggestion that these
penalties make a

[[Page S6517]]

great deal of sense. If anything, they are already causing a terrible
burden.
There is no epidemic of leniency in the Federal courts today. We have
not heard, in hearings in the Judiciary Committee, about leniency in
terms of the crimes--we have not--nor with regard to these different
provisions.
The Federal prison population has quadrupled in the last 20 years.
Now it is larger than any State system. The addition of new mandatory
minimums only places further strains on the Federal prisons, which are
already struggling with a growing population, along with diminishing
budgets. Justice Rehnquist made the following observation about
mandatory minimums: Our resources are misspent, our punishments too
severe, our sentences too long.
That is his statement in opposition to mandatory minimums. We have
the statements that have been made by the 2006 Conference of Mayors,
representing 1,100 mayors and cities with populations over 300 that
passed a resolution opposing the mandatory minimum sentences. It called
for a fair and effective sentencing policy. The Nation's mayors are
opposed to mandatory sentences on both Federal and State levels. Our
mayors believe we should have laws that permit judges to define
appropriate sentences based on the specific circumstances of the crime
and the perpetrator's individual situation, and that States should
review the effects of both Federal and State mandatory minimum
sentencing and move forward.

As I say, that is my position on this. I am under no illusions about
what the desire and the will of this institution is on this particular
proposal.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina is recognized.
Mr. GRAHAM. Mr. President, very briefly, and I will move to have this
amendment voted upon, if that is the correct order of business.
To my very good friend Senator Kennedy, it is my understanding in
terms of incarceration costs, the costs are paid by the Federal
Government through the State Criminal Alien Assistance Program about 90
percent--90 cents on the dollar. So the Federal Government does help
the local communities almost fully to deal with the expense of people
who are caught violating or who are put in jail.
In terms of leniency--is there any evidence our laws are too
lenient--I would say there are about 12 million pieces of evidence that
our laws are too lenient. How can you have 12 million people come
across the border and the word not be out that there is not much of a
downside to doing it? Now, if you get 12 million people violating the
law, it must be common knowledge among that population and others there
is not much going to happen to you.
Well, that needs to stop. We need to give people who are here a
chance to assimilate. Legal paths, we have more legal paths than we
have ever had through this bill.
The illegal part of it has to come to an end and will only come to an
end if there is a downside to breaking our law, and this amendment is
about mandatory jail time. I am not trying to make it easier on people;
I am trying to make it harder on people who take the law into their own
hands and violate our border security. That is why we have mandatory
jail time. Prior misdemeanors, you are going to go to jail 1 year if we
catch you here again. If you served jail time of 2\1/2\ years and we
find you on our soil again after you have been deported, 2 years. If
you got a sentence of 5 years and we find you on our soil again after
you have been deported, 4 years in jail. If you are convicted of three
or more felonies, 4 years in jail, if we find you here again. If you
are convicted of a violent crime, no less than 5 years, and up to 20
years.
It is time to get serious. This is a serious amendment for a serious
problem. I know this is going to send the right message and that we
need to be tough, not just in words but in deeds.
I urge passage of the amendment.
Mr. KENNEDY. Mr. President, I indicated in my earlier comments about
the different provisions that exist in the law, the kind of flexibility
that is out there to deal with serious crimes. But with the mandatory
minimums you have a blunderbuss solution. There is no ability or
flexibility at all to be able to deal with it.
The Federal Bureau of Prisons estimates it costs $67 a day for each
person in jail. Estimates are it costs $90 per day to detain an
immigrant. Right now each immigrant spends an average of 42.5 days in
detention prior to deportation, at an average cost of $3,825. Senator
Graham's 60-day mandatory minimum for illegal reentry would increase
the total spent in detention by 17.5 days, which increases the cost of
detention per immigrant to $5,400. These increased costs couldn't be
avoided because the mandatory minimum won't let the judge give any
defendant a lower sentence regardless of the facts. This is a major
problem with the mandatory, and this amendment would be a costly
mistake.
The fact is the States pick up before the individual enters the
system, the States pick up the tab. So New Mexico, Arizona, California,
and Texas, you are going to have this new mandate and expenditures for
it.
Last year, 11,000 immigrants were charged with the offense of
improper entry. If this amendment passes, we are looking at increasing
the costs by millions of dollars. According to 2005 data, the U.S.
Government has the resources to hold 19,000 immigrants. It represents
less than 1 percent of the undocumented population. This amendment may
also require us to build new facilities to house these people, new
prison beds, $14,000 per bed. We don't know how many beds will have to
be built if this amendment is adopted.
It seems the provisions we have in the legislation make sense, and if
the Senator wanted to alter his amendment and say: Let's let this go to
the Sentencing Commission and let them make the recommendations, which
we have done on other pieces of legislation to permit the penalty to
suit the crime, I would say amen. But this amendment is going to put an
important additional burden on the local communities, and it doesn't
have the flexibility we have in the existing legislation in terms of
dealing with those who are the real bad guys in this process. We have
that ability in the existing legislation. The idea we are going to make
it mandatory for people to go in for this period of time takes away
that kind of flexibility, which is desirable.
I see my friend and colleague from New Mexico on the floor and I know
he desires to speak.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I wish to speak briefly in opposition to
the amendment. I have great respect for my colleague from South
Carolina, but I think this is very misguided.
Chief Justice Rehnquist was speaking in 1994 to a luncheon of the
U.S. Sentencing Commission and he said the following:

Mandatory minimums are frequently the result of floor
amendments to demonstrate emphatically that legislators want
to ``get tough on crime.'' Just as frequently they do not
involve any careful consideration of the effect they might
have on the sentencing guidelines as a whole. Indeed, it
seems to me that one of the best arguments against any more
mandatory minimums, and perhaps against some of those we
already have, is that they frustrate the careful calibration
of sentences, from one end of the spectrum to the other,
which the sentencing guidelines were intended to accomplish.

I think Justice Rehnquist was right, that this is--this, as I
understand it, is an amendment that has not been brought up for
hearing. These proposed changes in the law have not been brought up for
a hearing in the Judiciary Committee. I am not a member of that
committee. My colleague Senator Kennedy is, of course, as is Senator
Graham. But my impression is this is not the result of a careful
deliberation by the committee of jurisdiction here in the Senate.
Instead, this is one of these floor amendments that is intended to
demonstrate that legislators want to ``get tough on crime'' and
particularly want to get tough on crime if it involves immigrants. So
that is what is going on here.
I think the strongest argument I know, and I am sure this is what the
Senator from Massachusetts was mentioning, is the cost that is involved
in actually going ahead with this amendment. We are talking about
taking people, and instead of kicking them out of the country, we are
requiring those individuals be incarcerated in this country at very
substantial expense to the U.S. taxpayer for a very long period of

[[Page S6518]]

time. I don't know that it makes good sense for us to be doing this.
One of the purposes of this immigration legislation that is before
the Senate right now is to reduce the burden on U.S. taxpayers of all
of the immigrants coming into the country. This amendment does the
exact opposite. This amendment puts an enormous additional expense on
the taxpayers of the United States by saying: If you come into this
country illegally, we are going to lock you up and we are going to be
sure you stay locked up for a long time. Well, that is fine, as long as
you want to pay--what is it--$30,000, $40,000 per year to keep one of
these individuals incarcerated. We are paying a lot more to keep an
individual in one of these Federal prisons, I can tell you that, than
we pay to keep people in some of our best universities.
I don't think it is a good use of our resources. I think this is one
of these feel-good amendments which says we are not being tough enough
on immigrants, let's tighten this thing up, let's be real tough on
them.
The statistics I have--and these are statistics from the 2006 Source
Book of Federal Sentencing Statistics, put out by the United States
Sentencing Commission. They have a chart on page 13 where they talk
about the distribution of offenders in each primary offense category.
It shows that 24.5 percent of the offenders we are incarcerating today
are being incarcerated for immigration-related offenses. The only other
category that is larger is drugs, where 35.5 percent are being
incarcerated for drug-related offenses. So 24.5 percent of our
prisoners today are there because of immigration-related offenses. That
number is going to go up dramatically if we actually adopt and put into
law these mandatory minimum sentences that are contained in this
amendment.
I wish also to point out that the penalties, the sentences these
people are being given and the actual period of incarceration, the
number of months of incarceration for these immigration offenses, is
fairly significant. It ranges from 22.8 months up to over 25 months. So
we are talking about putting people in prison for a significant period
of time. As I say, they are all for immigration-related offenses.
I think it is foolhardy for the United States to be passing
immigration reform legislation to reduce the financial burden on U.S.
taxpayers for all of the illegal immigration coming into the country
and at the same time adopt an amendment that loads an enormous
additional cost on to the taxpayer so we can keep these people in
prison for a long time and thereby demonstrate we are getting tough on
crime.
I urge my colleagues to oppose the amendment.
Mr. GRAHAM. Mr. President, I ask unanimous consent to add Senator
McConnell as a cosponsor of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Mr. President, very briefly, to respond to my good friend
from New Mexico about some of his concerns, this is not about me
feeling good; this is about having the law work in a way that will
deter people from crossing our borders illegally.
I point to the Angel Resendez case, and if we had this law in effect
where we had mandatory jail time for those who had committed offenses
and caught on our soil. In a 10-year period he committed five crimes,
got deported each time, and was able to come back and commit another
crime. If this amendment had been in place, he would have been in jail
for a longer period of time and maybe his murder victims would be alive
today. This is a case not about me feeling good; it is about somebody
with a great propensity to cross our border illegally and commit crimes
and not being held accountable in a serious way.
After the Booker case, the sentencing guidelines are advisory. If we
want to send a message that we are flexible when it comes to
immigration law violations, we are doing a great job of it. People must
believe we are flexible, because they are coming across our borders in
droves. Flexibility is being taken as indifference. What we need to do
is to make it a crime that will sting people when they come across.
The cost to this country of having laws that are ignored and are
virtually a joke is huge. Look at where we are today with illegal
immigration. Let's try something new. Let's try doing something that
has worked over time: If you commit a crime, you do some time.
With that, I yield the floor and ask for passage.
Mr. KENNEDY. Mr. President, briefly, to quote from the American Bar
Association, this was their comment a year ago on the previous
immigration bill on the same subject, on the issue of mandatory
minimums when this issue came up during that time:

The American Bar Association strongly opposes the
provisions in the draft legislation--

That was the draft legislation a year ago--

that would enhance or create new mandatory minimums. First,
as a general matter, the mandatory minimums produce an
inflexibility and rigidity in the imposition of punishment
that is inappropriate for a system that we hold out to the
world as a model of justice and fairness. To insist that all
those convicted of a crime be lumped into the same category
and be penalized indefinitely inevitably means the injustice
of a sentence in particular circumstances will be ignored.
Additionally, we are concerned at the high cost of imposing
mandatory minimums. Numerous studies have demonstrated the
extraordinary costs of incarcerating thousands of nonviolent
offenders in our Nation's prisons and jails.
The provisions to create the new mandatory sentences,
coupled with those to increase the mandatory detention, have
the potential to greatly increase the number of individuals
being incarcerated in immigration-related cases at a
significant cost to the American taxpayers.

We have provisions in the legislation that are tough and that a judge
can use and must use in those circumstances which require it. But I
think to effectively tie the judge's hands in these other circumstances
makes little sense.
I see the Senator from California on the Senate floor. I would like
to ask how the Senator wants to dispose of this amendment.
Mr. GRAHAM. I urge passage of the amendment.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. KENNEDY. Mr. President, I suggest that we proceed with the
Senator from California and then come back to that.
Mr. GRAHAM. That suggestion is well taken, yes.
Mr. KENNEDY. Mr. President, I ask unanimous consent that we go now to
the Senator from California and her amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I thank the manager of the bill. I
want to say a few words on the bill in general and then move to an
amendment, if I might.
I am a supporter of this bill. It is not a perfect bill. I think it
is easy to tell the people on the far right of the political spectrum
and the far left of the political spectrum are not happy with this
bill. But what this bill accomplishes--like nothing I have ever seen in
my 15 years in the Senate--is that it is a piece of work that is a
product of people on both sides of the aisle sitting down and trying to
work something out that can get 60 votes in this Chamber and move on,
and not be a useless piece of legislation, but rather one that offers a
kind of comprehensive reform that has definition.
People use the word ``comprehensive,'' and nobody really knows what
they are talking about. But in the case of this bill, anyone who
carefully looks at the bill will understand what the word
``comprehensive'' means because the word means addressing all sides of
the immigration issue, taking borders that are broken and repairing
them, stabilizing a border with additional border patrol, prosecutors,
detention facilities, and also strengthening interior enforcement.
Three major sections--called titles--of this bill really deal with
enforcement of our borders, enforcement of the interior. Then there is
the question of how do you deal with the 12 million people who have
been here for some time illegally, most of whom are engaged in
legitimate, bona fide work. How do you deal with what has developed to
be an entire subterranean economy in this country, with its own special
shops, stores, and special points of congregation for work? How do you
remove the element of fear that drives all of this further and further
underground?

[[Page S6519]]

The more the ICE agents--formerly INS--pick up people in the
workplace for deportation, the more you see the inequality and
injustice--there was one family, about a week ago in San Diego, by the
name of Munoz, who had been here for a long period of time. They both
worked and raised three children who were born in this country. They
owned their home and their furniture.
Well, in came the agents, who picked up the parents. The parents were
out of the country and the children were left. The home was sold and
the furniture was gone. And this is a family who had the piece of the
rock of America. They were contributing to the economy of America. But
they were destroyed.
Many of us in this body believe you cannot find and deport 12 million
people. My State of California has the largest number of people living
in undocumented status, which is estimated to be in the vicinity of 3
million people. They are a vital part of our workforce. They are 90
percent of California's agricultural workforce, which is the largest of
the 50 States. They also work in service industries. You see them in
hotels and in restaurants, and you see them in construction and
housing. So they have become an indigenous part of the California
workforce.
This bill puts together reforms in immigration with a process to
bring those people out of the shadows. What has bothered me over these
days, as I listen to the television and read in the newspapers, is I
hear the drumbeat, and I even see small signs on automobiles that
simply say ``amnesty.'' This bill is not amnesty.
What is amnesty? Amnesty is the categorical forgiveness of a crime,
an event, or whatever the issue may be. This does not do that. This
sets up a roadmap, which is complicated for someone who wants to remain
in this country, to be legal, to be able to work legally, and perhaps
even someday get a green card, and maybe someday further off, become a
citizen.
Well, there is an 8-year road created in this bill. There are fines
of $5,000 plus an additional $1,500 fee for processing. There is a
touchback, which may be changed in a further amendment, but at this
stage in the debate it is this: If during that 8-year period the
individual who has now achieved this Z visa, which gives them the right
to work in this country, decides they want to pursue a green card, they
would go to their country of origin, to the nearest U.S. consulate, and
with the Z visa they can come in and out of the country at will. They
don't have to stay in their country of origin. What they would do is
file their papers. They would submit their fingerprints, and they would
turn around and come back into the United States. Then, electronically,
the evaluation would be done after the present line for green cards
expires. Everybody waiting in line legally for a green card gets it.
They would have the opportunity to get a green card. This is estimated
to be between 8 and 13 years. During that period of 8 years, they would
have to re-up, come in and prove that they have done the things the
bill requires them to do. This is not an amnesty.
Now, the other part is that there are changes made in what is called
chain migration. Currently, one person on a green card can bring in any
number of family members. This is changed to the nuclear family. The
person holding the green card can bring in their spouse and their minor
children. That future green card, after the 8 years--after the list is
expunged, future green cards would be granted on the basis of the point
system, which deals with merit in the sense of the availability of job,
work, the educational attributes of the individual, the family, and
other things. I think it is as close as we are going to get to solving
this problem and creating the interior enforcement, the border
stability, and the laws that are necessary to secure the rule of law
when it deals with immigration.
Mr. President, many Senators from both sides of the aisle worked long
hours over the past several months to address immigration reform. And
through the process of negotiation and compromise a tough, fair, and
workable bill has been crafted.
The bill before the Senate provides solutions to restore the rule of
law, fix our broken borders, protect our national security, and bring
the 12 million people now living illegally in the U.S. out of the
shadows.
I believe this bipartisan bill is a strong first step toward
addressing illegal immigration in a fair and balanced way.

Immigration Enforcement

The bill is predicated on several fundamental principles. The first
is that we must control our borders and protect our national security.
The bill ensures that before a single temporary visa is issued, or a
single undocumented alien in the United States can earn their green
card, several important ``triggers'' must be met--``triggers'' that
show the Federal Government is taking a hard stance on enforcing the
law and enforcing the border. The triggers include:
Installing at least 200 miles of vehicle barriers as well as 370
miles of fencing, 70 ground-based radar and camera towers, and
deploying 4 unmanned aerial vehicles along the southern border;
detaining all illegal aliens apprehended at the southern border, rather
than continuing the ``catch and release'' policy; establishing and
using the new Employment Verification system to confirm who can work in
the United States legally and who cannot, and hiring 3,500 new border
patrol agents to increase the total number of agents on the border from
14,500 to 18,000.
Then later, after the first 3,500 border patrol agents are hired, the
bill requires that an additional 10,500 more border patrol agents are
hired. So, the total number of border patrol agents will increase from
its current level of 14,500, to 18,000 under the trigger, to eventually
28,500 by the end of five years.
The bill also requires hiring 1,000 new immigration agents, 200 new
prosecutors, and new immigration judges and Board of Immigration
Appeals members.
Next, the bill increases the penalties for people who illegally enter
the U.S. or who overstay their visas.
Under current law, if an individual enters the U.S. illegally or
overstays their visa they are barred from returning to the United
States for three years, and could be barred for up to 10 years if they
stayed in the U.S. illegally for over a year.
However, under the bill, if an individual is in the United States
illegally the penalty is increased so that the person would be barred
forever--and never be allowed to come to the United States.
The bill also includes provisions to fight passport and visa fraud
based on the bill that Senator Sessions and I introduced this year.
These new provisions would punish people who traffic in 10 or more
passports or visas, and increase the penalty for document fraud crimes
to 20 years.
By including these tough new enforcement measures, this bill goes a
long way to protecting our borders and takes a hard stand against
individuals who violate the law.

Employment Enforcement

The bill also takes a hard stand against employers who violate the
law and hire illegal immigrants.
For too long, the administration has not enforced the laws on the
books, and the negligible fines for hiring illegal aliens were just a
part of doing business--this bill changes that.
Under current law, an employer can be fined $250 to $2,500 for hiring
an unauthorized worker; the bill increases that fine to $5,000.
The bill also increases the penalties for employers who repeatedly
violate the law and hire illegal aliens. Under current law, the highest
penalty that can be assessed against an employer is $10,000 for a
repeat violation; this bill imposes a new larger fine of $75,000 for
repeat violations.
The bill creates a new employment verification system--mandating that
within 3 years, all employers must verify with the Government that all
of their employees, foreign and American, are who they say they are.
This new system will require employers to submit each employee's name
and social security number or visa numbers to the Department of
Homeland Security. DHS will then confirm whether the employee is in
fact legally allowed to work.
If the DHS says the employee is not legally allowed to work or his
legal status is in question, the employee then has 10 days to challenge
the Government's conclusion, and while the employee is taking steps to
contest his rejection, the Secretary must extend

[[Page S6520]]

the period of investigation and the employee cannot be fired.
This new verification system should ensure that individuals who are
hired by American businesses are actually legally permitted to work in
this country.

Grand Bargain

Once the security and enforcement measures were established, the
negotiators sought to devise a pragmatic solution to deal with the
approximately 12 million illegal immigrants currently living in the
United States.
This solution to this issue is what has been referred to as ``the
grand bargain.''
In order to bring Democrats and Republicans together a compromise was
adopted that creates a new ``Z'' visa that will establishes a strict
path for those individuals who are already in the United States to be
able to earn a legal status.
In exchange, the bill reforms the current immigration system and
eliminates policies that allow for ``chain migration.''

Practical solution to 12 million now here

With respect to the first part of the grand bargain, I firmly believe
we have to develop a practical solution to the deal with the 12 million
illegal immigrants already in the country.
While some have complained that all 12 million undocumented aliens
should be deported, such a solution is not practical nor is it
reasonable--for many of those individuals and families who have become
integrated into the fabric of their communities deportation would be a
severe outcome.
For example, in my home State of California, the Munoz family from
San Diego is facing exactly what a policy of absolute deportation would
mean.
In 1989 Zulma and Abel Munoz came to the United States seeking
medical care for their infant son who was sick--sadly, despite their
efforts, 2 months later he died. At the time, Mrs. Munoz was pregnant
with her second child, a girl, and a medical worker who had helped her
son urged Mrs. Munoz to stay longer in the United States to make sure
their infant daughter received proper care. They took that medical
workers advice, and have remained in the United States since then. Both
parents found work; they bought a home, and they repeatedly tried to
legally adjust their status, but their attempts failed.
Then last month, at 7:30 p.m. on a Thursday night, Mrs. Munoz was
arrested and led away from the house in her pajamas. Later when Mr.
Munoz returned from Home Depot, he was handcuffed and taken away--
leaving behind their three children, now 16, 13, and 9.
There are many families, like Mr. and Mrs. Munoz, who are not
criminals, who have lived and worked in their communities for years,
and who are productive members of society, but who are also in the U.S.
illegally.
Families like these should be given the opportunity to come out of
shadows, to earn a legal status, and to eventually apply for a green
card--and that is what this bill provides through the Z visa program.
Let me be clear, this is not an amnesty. For those who say it is, I
think it is important to define what amnesty means. Amnesty is
automatically giving those who broke the law a clean slate no questions
asked. This bill does not do that.
Instead, to qualify for a green card each individual must wait until
the backlog has been cleared--approximately 8 years--and during that
time these individuals and families would need to pass a national
security check; apply for a Z-visa that allows them to stay in the U.S.
legally; work or get an education; pay taxes; learn English; pay a fine
of $5,000, plus processing fees of at least $3,000; not commit
crimes; reapply and undergo additional background checks; return to
their home country for a ``touch-back'' for at least a day, to submit
their application, provide a fingerprint , biographical and biometric
information; and earn enough points under the same merit system that
all future applicants will use.

This is not amnesty. This is not simply giving a green card to anyone
who is in the country illegally. Instead, through the Z visa program
and the new merit system, each individual must meet these significant
demands in order to earn a green card.

Green card backlog

The second component of the ``grand bargain'' is to clear up the
current backlog of individuals who have been waiting for green cards
and to reform how green cards are awarded by creating a point system
that is based on merit.
To achieve this, the bipartisan bill would provide about 200,000 new
green cards annually that will go to those individuals who have
followed the rules and applied for a green card prior to May 1, 2005.
For anyone who applied after May 1, 2005, they will now be required
to re-apply through the new merit-based point system. This new point
system is based on what has been done in other countries, including
Canada and Australia. It sets up a framework to allow individuals to
earn points that would qualify them to earn a green card.
Under this new system, individuals will get points for education,
work history, ability to speak English, as well as whether they have
U.S. citizen family members. This new point system is a balanced
approach that considers multiple factors and allows individuals to earn
their green cards.

Temporary Worker Program

Finally, the third component in the ``grand bargain'' is to ensure
that temporary means temporary--meaning workers who come to the United
States on a ``temporary worker visa'' must return to their home
countries when the visa expires.
Under the new ``Y-visa'' there are 2 temporary worker programs--one
that brings in workers for 2 years, and then requires the worker to
leave for a year; and a second, seasonal Y-visa where workers can come
in for 10 months, and then are required to leave for 2 months.
Workers who come to the United States under the longer ``2 years in
the country, 1 year out of the country'' program can renew their visa
so that they can work up to 6 years total; but every 2 years they must
leave the United States for a year.
However, if Y-visa holder wants to bring their family with them to
the United States then they would be limited to only 1 renewal and they
would have to demonstrate that they can support their family. They
would do this by showing that the family has health insurance and that
they will earn a wage above 150 percent of the Federal poverty
guidelines.
Finally, the new Y-visa program is capped at 400,000 foreign workers
a year for the 2-year/1-year program and 100,000 visas for the seasonal
10-month/2-month program. Both of these caps contain escalation clauses
that allow the Secretary of Homeland Security to issue additional visas
up to 600,000 per year for the longer program and up to 200,000 per
year for the seasonal program.
The escalation clause in the longer program gives the Secretary the
discretion to increase the number of Y-visas by as much as 10 percent
or 15 percent each year. According to some estimates, this means that
in 10 years well over 3.4 million foreign workers could come into the
United States through the longer Y-visa program.
I am concerned about the impact on our economy and our country if
such a substantial number of visas were to be issued. Senator Bingaman
has an amendment that would eliminate the escalator and reduce the cap
to permit only 200,000 Y-visas each year to be issued under the longer
program. I am a cosponsor of the Bingaman amendment and I voted for it
last Congress.
While I agree with the grand bargain principle that temporary means
temporary, I am concerned that the high cap on the longer Y-visa
program and the inclusion of the escalator means that the numbers of
temporary workers coming in through this program are just too high.
But with the adoption of the Bingaman amendment I believe the
temporary worker program adopts the right balance and still fulfills
the principles of the ``grand bargain.''

Need for Agricultural Labor

In addition to these important principles that were developed as part
of the ``grand bargain'', the bipartisan bill contains two more
important provisions: the DREAM Act and AgJOBS.
Last Congress, Senators Craig, Kennedy, and I repeatedly tried to
pass AgJOBS. This bill reforms the current H-2A agricultural temporary
worker program and creates a path to legalization for undocumented farm
workers currently in the U.S.

[[Page S6521]]

There is no industry that is suffering more from a labor shortage
than agriculture. Foreign workers make up as much as 90 percent of the
work force and over half of the foreign workers are undocumented--as
many as 1.5 million.
But for years now we have heard from farmers and growers that they
can not get the labor force needed to harvest their crops.
California growers tell me that their labor forces are already down
30 percent this year. For example, Larry Stonebarger, a cherry packer
in Stockton, CA, has said that his packing house only has 650 workers,
instead of 1100 he needs.
California provides a vital part of our Nation's food source. Half of
this country's fruits are grown in California and, in fact, California
is the only U.S. producer of almonds, figs, kiwi fruit, olives, and
raisins. The importance of having locally grown produce cannot be
underestimated.
This Sunday, the Washington Post reported that the Food and Drug
Administration detained 107 food imports from China at U.S. ports just
last month. They found dried apples preserved with a cancer-causing
chemical; mushrooms laced with illegal pesticides; juices and fruits
rejected as ``filthy''; and prunes tinted with chemical dyes not
approved for human consumption. This situation is unacceptable. But,
amazingly, as we fight to keep out foreign produce that is not
protected by safety and quality controls, our own immigration policies
undermine the ability of U.S. growers to produce high quality fruits
and vegetables right here in our own country.
The reality is, if there are not enough farm workers to harvest the
crops in the United States, we will end up relying on foreign countries
to provide our food. This is not good for our economy or for ensuring
that Americans are receiving safe and healthy foods.
The best way to avoid this outcome is to ensure that American farmers
and growers have the workers they need to harvest the crops, and the
best way to ensure we have a stable agriculture labor force is to pass
AgJOBS.
Our bill will stabilize the labor shortage on our farms by allowing
undocumented farm workers who have worked in agriculture and agree to
continue to work in agriculture for 3 to 5 years to earn a Z-A visa and
eventually a green card. This will create a path to earn legal status
for those ag workers already in the country.
Secondly, AgJOBS will streamline the H-2A program so that it is
usable, so that growers and farmers can have access to a consistent
supply of temporary workers in the future.
AgJOBS is a bipartisan bill that needs to be enacted to ensure that
farmers, growers, and farm workers can continue to provide Americans
home-grown, safe and healthy produce.
Immigration reform is certainly a difficult area to tackle, but this
bill strikes the right balance and reflects the best thinking on how to
accommodate all the various concerns and interests.
While it is easy to sit on the sidelines and criticize, it is harder
to stand up, take on the tough issues, make the hard decisions and do
what is right to fix our immigration system. I want to commend Senators
Kennedy, Specter, Salazar, and Kyl for their hard work in undertaking
this difficult issue and crafting this important legislation.
This is not a perfect bill, but it is a good bill, and it is a bill
that I hope the Senate will pass.

Amendment No. 1146 to Amendment No. 1150

Mrs. FEINSTEIN. Mr. President, I call up amendment No. 1146, and I
ask unanimous consent to add Senator Martinez as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from California [Mrs. Feinstein], for herself,
and Mr. Martinez, proposes an amendment numbered 1146 to
amendment No. 1150.

Mrs. FEINSTEIN. 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 printed in the Record of Monday, May 21, 2007, under
``Text of Amendments.'')
Mrs. FEINSTEIN. Mr. President, about 6 years ago, I was sitting at
home and I was watching television. What I saw was, I believe,
happening in Seattle. It was a 14-year-old Chinese youngster who had
come to this country in a container. Her parents died in the container.
She had survived. She had been in a detention facility for 7 months
prior to coming before the judge. What I saw on television were tears
streaming down her face, her hands in cuffs, and the chain went around
her waist. She was unable to wipe away her tears. I thought this was
very strange, something really must be wrong.
I found out that she is not alone. There are 7,000 unaccompanied
youngsters who come to this country every year. Many of them--at least
up to a recent point--were held in detention facilities for unlimited
periods of time. They don't speak the language, they have no friends,
they have no guardians, and they have no one to represent them. Often,
they are sexually abused. It is a real problem.
This amendment is the same as a bill that passed the Senate last year
by unanimous consent. There are a few changes, and those changes remove
provisions that were contained in the previous version that are no
longer necessary because of changes in agency practices to bring this
bill in line with other laws, and to require promulgation of
regulations and reporting of statistics on children affected by this
bill.
Now, in the Homeland Security Act, the responsibility for the care
and placement of unaccompanied alien children was transferred from the
Immigration and Naturalization Service to the Department of Health and
Human Services, Office of Refugee Resettlement. This amendment provides
guidance and instruction to the Office of Refugee Resettlement, the
Department of Homeland Security, and the Department of Justice, for how
to handle the custody, release, family reunification, and the detention
of unaccompanied alien children.
The amendment clarifies that any child who was deemed to be a
national security risk, or who has committed a serious crime, will
remain under the jurisdiction of the Department of Homeland Security or
the Department of Justice and will not be released to the Office of
Refugee Resettlement. For those who pose no danger to themselves or
others, the amendment requires that the children be placed in the least
restrictive setting possible, and it defines what those settings are.
This is the order of preference: One, licensed family foster care;
two, small group care; three, sheltered care; four, residential
treatment center; five, secured detention. So the least restrictive
place for these children--remember, in any given year, there are a
substantial number of these children. The amendment also would
establish minimum standards for this custody or, where appropriate,
detention of these children, including making sure they have access to
medical care, mental health care, some access to phones, legal
services, interpreters, and supervision by professionals trained to
work with these children.
I am delighted that Senator Martinez is a cosponsor, and I hope he
will come to the floor because I believe he just said to me he found
himself in a similar situation. I mentioned to him a case with which we
are all familiar, Elian Gonzalez, who landed on the shores of Florida,
whose mother drowned trying to get here. He had relatives in Florida.
Florida has moved to create certain centers where these children are,
in fact, secure, but many States have not.
The amendment also requires that wherever possible, these children
are returned to their place of origin if there is a family member who
can receive them. So a juvenile is sent home if there is a suitable
placement for that child. If not, another appropriate placement must be
secured for that child.
I think this legislation is very good legislation. As I said, it has
passed the Senate before. We have amended it to comply with bills that
have passed the Senate, and I am very hopeful that this amendment might
even pass by unanimous consent today.
I will not ask for the yeas and nays at this time.
I do not see Senator Martinez in the Chamber at this time, so I yield
the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.

[[Page S6522]]

Mr. KENNEDY. Mr. President, I will not take much time. I commend and
thank the good Senator from California. This is an extraordinary
humanitarian need. I have listened to the Senator from California on
the floor, I have listened to her in committee, and I have listened to
her at hearings. This is a matter of enormous importance. It relates to
minors, children, vulnerable people, and the record of exploitation.
This amendment is well thought out. She has had strong bipartisan
support for it. In the past, there has not been objection to this
amendment. I know of no objection to it. It is an extremely worthwhile
amendment.
I have spent a good deal of time commending her and talking about the
amendment, but she has done an excellent job in its presentation. I
certainly hope we will accept this amendment. I believe we are prepared
to accept it.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I have 1 minute of comments to make on the
amendment of the Senator from South Carolina, and then I wonder if we
can proceed with the possibility of three amendments being disposed of
in quick order so that then the Senator from New Hampshire can begin
with his amendment.
Let me make my comments about the amendment offered by Senator
Graham. I support this amendment because it provides a deterrent to
future illegal immigration. While there are a great deal of statistics
I would like to cite, in the interest of time, let me make this point.
There is a very interesting operation going on right now in the Del
Rio, TX, sector, in something called Operation Streamline in which they
actually have the jail space available to detain, for up to 180 days,
illegal immigrants caught coming across the border. This has been in
operation now since 2005. Anyone caught entering the United States
illegally faces prosecution under this particular operation unless for
humanitarian reasons they need to be released. It has proven very
effective in reducing the number of crossings in that area. The word
has spread very quickly to people in Mexico that if they try to cross
in this sector and they are caught, they are not just going to be
returned home, they are going to spend time in jail. That totally
disrupts their lives. They cannot afford not to be back working
someplace, either in their own country or in the United States. As a
result, the word has spread quickly: Don't try to cross in that sector
or you are going to go to jail.
As a result, I think the amendment of the Senator from South Carolina
is very well taken. It will provide a deterrent for future illegal
crossings into the United States. And that is what this legislation
should be all about, the stopping of illegal immigration. So I support
his amendment.
Mr. President, if I may address the Senator from Massachusetts, would
it be possible at this point to address three amendments that have been
offered and dispense with them?
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, if the Senator will yield, I ask
unanimous consent that the previous incomplete voice vote on amendment
No. 1173 be vitiated and the amendment be agreed to. This is the Graham
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 1173) was agreed to.
Mr. KENNEDY. I had hoped we could voice vote the amendment of the
Senator from California. I have been notified that we cannot voice vote
it, so we will have to have a rollcall vote on that amendment. I
believe the Senator from California is prepared to go ahead.
Mr. GREGG. Mr. President, will the Senator from Massachusetts yield
for a question?
Mr. KENNEDY. Yes, I will be glad to yield for a question.
Mr. GREGG. I understand I am next in order to offer an amendment.
Mr. KENNEDY. Yes.
Mr. GREGG. If the Senator from Massachusetts is not ready to go to
Senator Feinstein's amendment at this time, I suggest I offer mine and
then we do the two amendments in sequence.
Mr. KENNEDY. That is an excellent suggestion, if the Senator from
Pennsylvania thinks it is a good idea.
Mr. SPECTER. Mr. President, I think it is an excellent idea. Do we
have Senator Grassley's amendment to voice vote?
Mr. KENNEDY. I think we ought to do that in a few minutes. I am
hopeful we will be able to do it. I hope that request will be made
either during or after the debate on the amendment of the Senator from
New Hampshire.
Mr. SPECTER. Mr. President, that is satisfactory.
Mr. KENNEDY. So, Mr. President, just before the Senator from New
Hampshire begins, we are moving along. We are going to take up the
amendment of the Senator from New Hampshire, and then it will come back
to our side. We have several Senators who have indicated a desire to
offer an amendment. Then I believe it will go back to the other side,
and I believe Senator Cornyn has an amendment. That is how we will
proceed. We intend to go back and forth. We have quite a list here. We
are making progress. I am grateful for all the cooperation we have had.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.

Amendment No. 1172 to Amendment No. 1150

Mr. GREGG. Mr. President, I ask unanimous consent to set aside the
pending amendment, and I call up my amendment, which is No. 1172.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The legislative clerk read as follows:

The Senator from New Hampshire [Mr. Gregg] proposes an
amendment numbered 1172 to amendment No. 1150.

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

(Purpose: To ensure control of our Nation's borders and strengthen
enforcement of our immigration laws)

Strike section 1 and insert the following:

SECTION 1. EFFECTIVE DATE TRIGGERS.

(a) In General.--With the exception of the probationary
benefits conferred by section 601(h) of this Act, the
provisions of subtitle C of title IV, and the admission of
aliens under section 101(a)(15)(H)(ii) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by
title IV, the programs established by title IV, and the
programs established by title VI that grant legal status to
any individual or that adjust the current status of any
individual who is unlawfully present in the United States to
that of an alien lawfully admitted for permanent residence,
shall become effective on the date that the Secretary submits
a written certification to the President and the Congress,
based on analysis by and in consultation with the Comptroller
General, that each of the following border security and other
measures are established, funded, and operational:
(1) Operational control of the international border with
mexico.--The Secretary of Homeland Security has established
and demonstrated operational control of 100 percent of the
international land border between the United States and
Mexico, including the ability to monitor such border through
available methods and technology.
(2) Staff enhancements for border patrol.--The United
States Customs and Border Protection Border Patrol has hired,
trained, and reporting for duty 20,000 full-time agents as of
the date of the certification under this subsection.
(3) Strong border barriers.--There has been--
(A) installed along the international land border between
the United States and Mexico as of the date of the
certification under this subsection, at least--
(i) 300 miles of vehicle barriers;
(ii) 370 miles of fencing; and
(iii) 105 ground-based radar and camera towers; and
(B) deployed for use along the along the international land
border between the United States and Mexico, as of the date
of the certification under this subsection, 4 unmanned aerial
vehicles, and the supporting systems for such vehicles.
(4) Catch and return.--The Secretary of Homeland Security
is detaining all removable aliens apprehended crossing the
international land border between the United States and
Mexico in violation of Federal or State law, except as
specifically mandated by Federal or State law or humanitarian
circumstances, and United States Immigration and Customs
Enforcement has the resources to maintain this practice,
including the resources necessary to detain up to 31,500
aliens per day on an annual basis.
(5) Workplace enforcement tools.--In compliance with the
requirements of title III of this Act, the Secretary of
Homeland Security has established, and is using, secure and
effective identification tools to prevent unauthorized
workers from obtaining employment in the United States. Such
identification tools shall include establishing--

[[Page S6523]]

(A) strict standards for identification documents that are
required to be presented by the alien to an employer in the
hiring process, including the use of secure documentation
that--
(i) contains--

(I) a photograph of the alien; and
(II) biometric data identifying the alien; or

(ii) complies with the requirements for such documentation
under the REAL ID Act (Public Law 109-13; 119 Stat. 231); and
(B) an electronic employment eligibility verification
system that is capable of querying Federal and State
databases in order to restrict fraud, identity theft, and use
of false social security numbers in the hiring of aliens by
an employer by electronically providing a digitized version
of the photograph on the alien's original Federal or State
issued document or documents for verification of that alien's
identity and work eligibility.
(6) Processing applications of aliens.--The Secretary of
Homeland Security has received, and is processing and
adjudicating in a timely manner, applications for Z
nonimmigrant status under title VI of this Act, including
conducting all necessary background and security checks
required under that title.
(b) Sense of Congress.--It is the sense of Congress that
the border security and other measures described in
subsection (a) shall be completed as soon as practicable,
subject to the necessary appropriations.
(c) Presidential Progress Report.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, and every 90 days thereafter until the
requirements under subsection (a) are met, the President
shall submit a report to Congress detailing the progress made
in funding, meeting, or otherwise satisfying each of the
requirements described under paragraphs (1) through (6) of
subsection (a), including detailing any contractual
agreements reached to carry out such measures.
(2) Progress not sufficient.--If the President determines
that sufficient progress is not being made, the President
shall include in the report required under paragraph (1)
specific funding recommendations, authorization needed, or
other actions that are or should be undertaken by the
Secretary of Homeland Security.
(d) GAO Report.--Not later than 30 days after the
certification is submitted under subsection (a), the
Comptroller General shall submit a report to Congress on the
accuracy of such certification.

Mr. GREGG. Mr. President, the essence of this bill for most
Americans, I believe, is the need and the desire to secure the border,
to make sure that people coming across our border are coming across
legally, that we know who they are, and that we are able to manage our
border.
It is a national disgrace that we have been unable to control the
illegal flow of people into our country, especially the massive illegal
flow of people across the southwestern border into this country. So I
don't believe there is really ever going to be a consensus around major
immigration reform, which I happen to strongly support.
I supported last year's bill introduced by Senator Kennedy and
Senator McCain. I support the effort this year in concept, although I
still want to see how it is going to end up in detail. But there will
never be a consensus support for major immigration reform, which we
need so dearly in this country, unless the American people can be
confident that the border is secure as the first condition of
immigration reform. Thus, I think it was really a touch of genius--and
I don't think I overstate that--by Senator Isakson from Georgia to come
up with this idea of a trigger over a year ago so that it would be
clear that the precondition of major immigration reform would be that
the border would be secure, especially the southwestern border. I
congratulate Senator Isakson for that initiative, and it is included in
this bill in concept in that the trigger is in place.
The concern I have is that the elements which exercise the trigger,
so that we then move on to the policies of this bill relative to other
elements of immigration reform, such as the guest worker program,
making sure we have adequate employer verification, doing the things
that are necessary in the area of creating more capacity for people to
come into this country who are qualified in the area of skills, those
elements are subject to a trigger today which is in this bill, and I
believe the specifics around that trigger do not lead, unfortunately,
to what we want, which is a secure border. It is a movement down the
road, but it is a movement down the road which appears in some way to
have been set not on the basis of what is necessary for controlling the
border but on the basis of what would be necessary to make sure the
operative part of this bill goes into action or occurs within 18 months
of passage of the bill.
So it seems that the numbers which have been put down in this bill
relative to how many Border Patrol agents we need, how many detention
beds we need, relative to how many observation facilities we need along
the border for a virtual fence, relative to other structural needs of
the southern border control, those elements were not defined in terms
of what would lead ultimately to full security and operational control
of the southwestern border, but those elements were defined as to what
was perceived as being doable in the next 18 months.
The difference between what is necessary for operational control of
the border and what those numbers are is not dramatic, quite obviously,
but it is significant, very significant. I had the good fortune for a
number of years to chair the Homeland Security Subcommittee of the
Appropriations Committee, and I served on it for a long time. So I do
believe I am fairly familiar with this issue, as familiar, probably, as
anybody in this body with this issue since there were a number of
initiatives which I began both as a chairman of the Commerce-State-
Justice Subcommittee, which was a precursor to the Homeland Security
Subcommittee, and then as chairman of the Homeland Security
Subcommittee which were targeted directly on the issue of upgrading the
Border Patrol capability, the port control capability, the Coast Guard
capability, and the detention bed capability so that we could get
operational control over the border.
Throughout this period, as we have been ramping up--and we have
ramped up dramatically. We have come really from a marginal capability
of controlling the southwestern border to a capability that is quite
high, and we are making dramatic strides every day in that area. The
numbers that are necessary were fairly well vetted as we stepped with
intensity into this process 3 or 4 years ago. The numbers in this bill,
therefore, should reflect what was the consensus position at that time
and what I continue to believe is the consensus position as to the type
of resources and the number of people they need and the type of support
they need on the border to gain operational control of the border.
This bill we are dealing with calls for 18,000 Border Patrol agents,
of whom it is assumed 16,000 will be boots on the ground on the border.
It calls for something like 21,000 detention beds. It calls for
something like 70 towers where we do virtual fence activity. We just
let out a contract called SBInet, the purpose of which is to replace a
program which was a total failure, which would put an electronic
surveillance system along the border. That SBInet is a fairly complex
technological initiative which involves ground sensors, visual sensors,
and heat sensors, and it involves unmanned aerial aircraft to cover
that part of the border which cannot be effectively and should not be
covered with physical fencing. It is a complex initiative, but it is
one which will work, we hope, and one which we are well down the road
toward doing. But for it to work effectively and for it to be properly
built, the amount of resources that needs to be committed to it exceeds
by a factor of about 30 percent what is in this bill. The same is true
in the area of Border Patrol agents and in the area of detention beds,
although less is needed.
So what I have done in this amendment is essentially propose that we
take the numbers that we know are necessary to gain operational control
over the border and put those numbers into this bill. And that we allow
the trigger, which is this exceptional idea Senator Isakson came up
with, to function off those numbers, rather than backing into the
trigger by using the number of months which we think we want to use
before we move on to the rest of the bill.

The difference, as I said, is not dramatic, significant but not
dramatic. For example, instead of 18,000 border agents--we had a lot of
testimony, a lot of discussion, and the head of the Border Patrol at
the time, Robert Bonner, said he needed 20,000 agents on the border--
not 16, 20. So there is a 2,000 agent difference. Now, the issue will
be hiring, the issue will be how quickly you can work them through the
system and bring them on board.

[[Page S6524]]

The issue is attrition. But the fact is, that is the number where there
was consensus, pretty much, that we needed in order to get the right
number of agents on the Southwest border--20,000; so 2,000 additional
agents over what the bill calls for.
In the area of detention beds, the bill calls for 21,000. We are
already headed well past that with the appropriations process, so that
was almost picking a number that was already done. It is like saying we
are going to approve this event, the trigger will occur if the Sun
comes up in the east. The Sun was going to come up in the east. The
fact is 21,000 beds is not enough. We know that. We know we need closer
to 30,000 beds in order to have the adequate detention capability to
stop completely the catch-and-release issue, which is a huge issue.
There are a couple of amendments that have already been offered. I
think Senator Grassley has offered that amendment. I am not sure of
that, but certainly Senator Graham's amendment, which was just
accepted, is related to that point. So instead of 21,000 beds, the
number I have put in my amendment is 31,000, which is the consensus
position. Again, it is not hard to get to 31,000 from 21,000 because we
are already over 21,000, or we are headed over 21,000. We can certainly
get well above that number fairly quickly.
In fact, 21,000 may be wrong. Maybe the bill calls for 27,000. I
apologize. The number here is 27,000. Somewhere I had seen 21,000, but
if it is 27,000 the bill calls for, we are only asking for another
4,000 beds in order to accomplish the goal that was agreed to in order
to reach the capacity to handle people coming into this country and not
have to release them and ask them to come back, which they do not do,
for their hearings.
In addition, on the virtual fence side and on the hard fencing side,
this amendment doesn't call for any additional hard fencing. The hard
fencing language is 370 miles. I happen to believe that is probably as
close to the number as we need. Hard fencing is needed in urban areas,
but most of the border is not urban. In the nonurban areas, hard
fencing is not functional and doesn't add a whole lot to our security
or to our ability to control the border. But we do need additional
vehicle barrier fencing, probably another 100 miles over what this bill
calls for, which is 200 miles, which is already in place and we are
headed toward, so this calls for 300 miles of vehicle fencing, which
was what we agreed to back when we did the Safe Border Initiative.
On the virtual capability, this bill calls for 70 towers. Well, we
are already headed toward 70 towers. We know we can build 70 towers,
but 70 towers isn't what we need to make the system work. We need
significantly more than that. We believe, within a reasonable
timeframe, we can build 105 towers, which would have us on track, so
this language calls for 105 towers.
It also eliminates the arbitrary language in here which is a sense of
the Senate that everything has to be done within 18 months. As I
mentioned, if you look at these numbers, you can see basically what
happened here, I suspect, was somebody said, what numbers can we be
absolutely sure we are going to hit in 18 months so we can exercise the
trigger and the numbers? They were good numbers that were put in, but
they weren't the numbers there had been consensus built around 2 years
ago, 3 years ago, even as recently as 1 year ago, that were needed in
order to actually gain operational control of the border. So this
amendment simply says, let us use the trigger mechanism. It is an
excellent idea, and let's take it forward but use it as a real trigger
that functions off of numbers that we know, if they are in place, will
create operational control and which will not unduly delay the
execution of the rest of this bill.
With proper resources, almost everything I have proposed in my
amendment could be accomplished fairly quickly. It is more than a
statement of commitment to operational control; it is a commitment to
operational control before the trigger gets pulled. In addition, to
make sure we are getting the operational control we need, the amendment
has an independent review by the Government Accountability Office of
the effort by the Department to meet these different benchmarks so we,
as a Congress, will know when there is a certification that the
benchmarks have been reached, the benchmarks actually will have been
reached and they will have been reviewed by an independent group,
specifically the Government Accountability Office, to confirm they have
been reached.

The amendment's purpose is to accomplish what the bill wishes to
accomplish. The purpose of this amendment is to make sure the first
step in this effort of immigration reform is to secure specifically the
Southwest border so we have a situation where people are not continuing
to cross into this country illegally after we have passed immigration
reform--or at least there is a clear roadmap which will get us to the
resources and the number of people we need on the southwestern border
to assure people won't be coming into this country illegally along that
border because we will have the necessary support to accomplish that.
It is, I believe, an extremely reasonable amendment.
Ironically, the numbers in this amendment have been offered from the
other side of the aisle on numerous occasions, or pretty close to these
numbers, by Senators who feel, as I do, that the border needs to be
secure. I would note especially Senator Byrd has had a number of
amendments right along this course where he has said, let us do what we
have to do in the area of resources to assure that Homeland Security
has the people they need in Border Patrol agents, has the resources
they need in the area of detention beds, has the resources they need in
the area of a virtual fence and regular fencing in order to adequately
control the border--not adequately, but to have actual operational
control over the border.
I hope this amendment would be accepted. This is an amendment which
toughens up our commitment to border security and it does it in the
context of what is an idea that makes a lot of sense, which is the
Isakson trigger and, therefore, it is, in my opinion, a significant
effort to improve the bill and give people the confidence that when we
pass this immigration reform, it will have as its first element our
ability to make sure we know who is coming into this country,
especially across the Southwest border.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Whitehouse). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GREGG. 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. GREGG. Mr. President, I ask for the yeas and nays on my
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays are ordered.
Mr. GREGG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. 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. 1146

Mr. KENNEDY. The Senator from California, Mrs. Feinstein, had an
amendment. I understand now that we are prepared to voice-vote that
amendment.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, the Feinstein amendment has been cleared
on this side of the aisle. I agree with Senator Kennedy, we can voice-
vote it.
The PRESIDING OFFICER. Is there further debate on amendment No. 1146?
The question is on agreeing to amendment No. 1146.
The amendment (No. 1146) was agreed to.

Amendment No. 1172

Mr. KENNEDY. Mr. President, now we have the Gregg amendment that is
pending; am I correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. KENNEDY. Mr. President, I will say a brief word about this
amendment. If others want to say a word

[[Page S6525]]

about it, that is fine. Then I intend to make a motion to table it.
Mr. President, the Judiciary Committee, long before we developed this
legislation, had extensive hearings about border security. We listened
to Secretary Chertoff speak. We listened to him both in open session
and in closed session.
I am convinced those recommendations were the best information that
we had in terms of our border security and they are incorporated in
this legislation.
It is a reflection of a bipartisan effort to make sure that we are
going to do everything that is necessary and can be done to provide a
secure border. We are using the latest in technology. They are using
the fence areas where they believe that is appropriate and have the
support to do it.
They are using the latest in terms of aerial drones, the latest in
terms of barriers that are out there. All of the latest in technology
will be used in terms of securing our border.
Now, the Senator from New Hampshire says he wants additional kinds,
as well as dramatic increases, in the total number of Customs agents.
What we have to understand, what has been clear since we have started
this whole kind of a process is, if we are going to control our border,
as we have heard from Homeland Security, the leader of Homeland
Security, it has to be comprehensive.
You have to have a secure border, but you also have to have some
opportunity to have a border which permits individuals to be able to
come through the front door if you are going to help them.
What I mean is, you are going to have to complete this in a timely
way. If we just think we are going to be able to delay the completion
of a comprehensive program, which the Gregg amendment will do, we are
going to find out the borders are going to continue to be penetrated
over the foreseeable future. That just happens to be the fact.
We made those points at the time to those who have said they want to
abolish or close out a temporary worker program. If you think you can
build a border and have border security there and have no opportunity
for any individuals to be able to come in legitimately, you have not
listened to the record and you have not listened to the testimony and
you have not listened to those who have been responsible for national
security.

They say you have to have some opportunity for individuals
to choose the more hopeful aspect rather than risk their
lives out in the desert. Now, with the Gregg amendment, what
that will do is effectively ensure that we are denied a
temporary worker program, we are denied the opportunity to
have any chance for individuals to come through the front
door.

As Governor Napolitano pointed out very clearly in her record
materials that we have used previously, if you build a 50-foot high
fence, those who want to come in will build a 51-foot high ladder. That
happens to be the fact. That is why we have heard from those who have
been involved in national security and border security who say: You
need the comprehensive approach that is the underlying bill.
I think the Gregg amendment will delay the opportunity for us to do
the underlying kind of effort to which we have been committed. I think,
therefore, we should not accept that.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I urge my colleagues to vote against the
amendment by the Senator from New Hampshire. The changes he makes are
only modest in nature. I think they are not directed to accomplish a
significant change: from 1,800 Border Patrol agents to 2,000; from 200
miles of vehicle barriers and 70 ground-based radar and camera towers,
he moves for 300 miles and 205 ground-based radar and camera towers.
He changes the detention service from 27,500 to 31,500, and a change
in some additional protection.
This has been very carefully calibrated. We are looking for an 18-
month period for the completion of these triggers. The Secretary of
Homeland Security, Michael Chertoff, has assured us, in testimony
before the committee and in the extensive negotiations, that these are
realistic. We have questioned Secretary Chertoff about whether it can
be done within this period of time because they are conditions
precedent. Until these barriers and fencing and Border Patrol agents
are in place, the balance of the bill cannot go forward. That is the
assurance to those who wonder if we are serious about securing our
borders before going ahead with the other parts of the program. We do
not want to tamper with what the Secretary has articulated. The
additional requirements obviously will take longer to complete. We have
this bill in place. I urge my colleagues to stay with the negotiated
arrangement and to reject the Gregg amendment.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I move to table the Gregg amendment and
ask for the yeas and nays.
Mr. SALAZAR. Will the Senator withhold?
Mr. KENNEDY. I will.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. SALAZAR. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The pending question is the Gregg amendment
No. 1172.
Mr. SALAZAR. I ask unanimous consent to speak for 2 minutes against
the Gregg amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SALAZAR. Mr. President, I join my colleagues, the floor managers
of this bill, Senators Kennedy and Specter, in urging our colleagues to
vote against the Gregg amendment. There is broad agreement among all
Members who have been working on this reform package that we need to
secure the border. Indeed, when you look at what Secretary Chertoff has
said we need to do to secure the border, he has said we need to do a
number of different things which we have incorporated in this
legislation. We call for 18,000 Border Patrol agents. We call for 370
miles of fencing, 200 miles of vehicle barriers, 70 ground-based radar
and camera towers, 4 unmanned aerial vehicles, new checkpoints and
ports of entry, and a host of other things. Those numbers were not just
picked out of the sky and put into this bill; those are the numbers the
Secretary of Homeland Security said we need in order to secure the
borders. He has been a constant presence in the fashioning of the
immigration reform proposal that is before the Senate. The Gregg
amendment essentially would derail the triggers that have been set up
and is inconsistent with what we have heard from the Department of
Homeland Security.
I join Senator Kennedy and Senator Specter and my colleagues in
urging a ``no'' vote on the Gregg amendment.
Mr. KENNEDY. Mr. President, I see the Senator from New Hampshire. I
would be glad to withhold if the Senator wanted to address the Senate;
otherwise, I will make a motion to table the Gregg amendment.
Mr. GREGG. Mr. President, I appreciate the Senator's courtesy. I wish
to respond briefly to the points which were made.
The numbers in this bill are numbers which are a fait accompli. They
are numbers which we already know we will reach within the next 18
months, if we stay on the appropriations path which was set up by
myself and Senator Byrd 2 years ago, but they are not the numbers on
which there was consensus needed in order to bring operational control
to the borders. They are not those numbers. They are good numbers. They
are a-step-in-the-right-direction numbers. That is why we funded them
and put in place a path to continue to fund them. But there was
absolute consensus--and don't let anybody come to this floor and say
something else--that the numbers for gaining control over the border
are different than these numbers. If they weren't, then we wouldn't
have let the contract on creating the virtual fence, because the
numbers in this bill do not come anywhere near the completion of the
virtual fence.
The numbers in this bill do not come anywhere near what is needed to
have the detention beds necessary to completely end catch and release,
nor do they reach the numbers necessary to have the number of people on
the border necessary to control the border. The Commissioner of
Customs, Mr. Bonner, made it very clear in testimony 3 or 4 years ago
that they needed 20,000 agents on the ground on the border.

[[Page S6526]]

This amendment hasn't asked for a radical change from what the bill
suggests. It says the bill makes a great stride, but if we are to use
the Isakson trigger effectively, which we want to--and the purpose of
the trigger is to make sure the border is secure before we move to the
next step in the bill--then we have to have the resources on the border
to accomplish that security. The resources necessary to do that are
20,000 agents, which is an increase of 2,000 over what the bill calls
for; the addition to 31,000 beds is an increase of about 2,500 over
what the bill calls for; an additional 100 miles of vehicle barrier
over what the bill calls for; and within a timeframe we believe is
reasonable, so you could still hit the 18 months or be close to it, not
70 towers of virtual fencing, which is where the communications and the
optics will be operated out of, but 105. That won't be the end of the
towers, but that would be enough to allow operational control over the
border.
This is not dramatic or radical. It is not even a grand change from
what the bill suggests. It is simply a change that meets the conditions
which we know are necessary in order to give operational control over
the border. The point which this amendment makes is that operational
control of the border should not be determined by an arbitrary number
of months going by--in other words, if 18 months go by, we will lose
operational control over the border. It should be set by the resources
being in place on the border which will limit the ability of people to
come across the border illegally. That is what this language does. How
much more will this language cost than what the bill costs? About $700
million more. That certainly should be within the funding capabilities
of the Appropriations Committee. In fact, if the administration wanted
to, they could send up a supplemental to accomplish that. That is a
very doable event.
Then it has a second condition, which is, it simply says the
certification that these numbers have been met shall be reviewed by
GAO. I do think as a Congress we would want that independent review.
That is reasonable.
It takes the number of Border Patrol agents up by 2,000 and gets it
to the number that was agreed to as being needed. It takes the number
of beds up by about 2,500 and gets the number which was agreed to. It
takes the number of vehicle barriers up by 100 and gets to the number
that was contracted for. It does not change the fencing requirement. It
keeps that at 370 miles. It adds 35 towers for the virtual fence, which
is what the contract called for.
To represent this is some sort of amendment which therefore
fundamentally undermines the core agreement is absurd on its face. The
core agreement was, we would put in place, using the Isakson trigger,
which was a stroke of genius for resolving this issue, resources on the
border which would allow for operational control of the border. This
simply calls for those resources to be consistent with what the
testimony has been over the last few years as to what is needed in
order to accomplish that.
The great irony is less than 6 months ago, we passed the Safe Fence
Act. The Safe Fence Act essentially put in place the mechanism which
got us to these numbers. The Safe Fence Act called for this action. The
Safe Fence Act got 92 votes. It seems to me if 6 months ago we believed
these were the numbers that should be used for fencing--and that is one
element of it--how can we change 6 months later and say: We are going
to step back from that and that is not the number we need in order to
have the trigger occur? If this were a dramatic shift, a radical shift,
an undermining shift in the exercise of this bill, I would say, fine,
oppose it; it is an attempt to kill the bill. But just the opposite is
the case. I am one of the few people on my side of the aisle who
actually voted for the Kennedy-McCain bill the last time it came
through here. I am on record and my commitment is to do immigration
reform.
I also know the American people will not be sold on the idea that we
are going to do immigration reform until they are confident our border
is secure, especially the southwestern border where the vast numbers of
people are coming in illegally. The northern border is a whole other
issue and a serious one, especially from the view of terrorism. But on
the southern border, people want it stopped. They want to know there
are in place the resources to allow us to control that border before we
take the next step into immigration reform, which next steps are
critical and necessary. That is, of course, the genius of the Isakson
trigger for which he deserves great credit, and which this language
will essentially make more effective because it accomplishes the
underlying goal of the trigger mechanism.
How long will this delay over the 18 months, which appears to be the
arbitrary number? In fact, a sense of the Senate in this bill says
everything has to be done in 18 months. How long will these numbers I
have suggested we meet, which aren't my numbers but are numbers that
have been around and on which there was consensus before this bill came
out of committee or came out of the working group--it never came out of
committee, obviously--came out of the working group around which there
was so much consensus last year that we had a 92-to-2 vote on the Safe
Fence Act, how much will that extend that time period beyond 18 months?
Actually, it might not extend it at all.
With proper dollars, Homeland Security could probably do all of these
things within the next 18 months. Certainly, they could do the extra
hundreds of miles of vehicle barrier. I am told they can do the extra
35 towers without the contractor. We have talked to the contractor. He
thinks that is a very doable event. The detention beds are certainly
doable because you can actually, if you can't build them--of course,
what we should be doing is putting up tent cities, which we are doing,
but in any event, you can contract them out, potentially. We are
talking another 2,000 beds. The border agents is an issue, but if it is
going to be an issue at 18,000, it will be an issue at 20,000. Hiring
border agents has become a function of finding the people we know we
want to do the job. But it is still very doable within that timeframe.
I am not sure it will delay it at all. I suspect you could still do
all this within 18 months, but there should not be a set series of
months at the end of which we are going to say: OK, we have operational
control of the border, and we can move on to the next things. What we
should have, rather, is a set of very determinable benchmarks which
will allow us to say that benchmark has been met and there is consensus
that that benchmark will accomplish what we say it will. In this
instance, that is the issue of operational control of the border.
So I would hope people would not vote to table this amendment. I
would note that many Members on the other side of the aisle have voted
for these types of resources in the past, when the amendment had been
offered by Senator Byrd. So you may want to ask yourself, are you going
to be consistent if you vote against this one?
But, more importantly, I think you have to ask yourself, are these
changes--an additional 2,000 border agents, an additional 100 miles of
vehicle barriers, an additional 2,500 beds--so onerous that they are
deal killers? If that is the case, then this bill must be dead because
we just passed an amendment to cut the number of temporary workers in
half. Now, that is a serious issue. This is taking procedure and
putting it over policy when you take that position to the extreme.
So I hope Members will support this amendment. If the Senator from
Massachusetts is inclined to move forward at this moment, I have no
problem.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will include in the Record the Homeland
Security proposal that was shared with the members of the committee. We
asked what was going to be necessary for secure borders. I have in my
hand the proposal of Homeland Security. That is what we have included
in this legislation, their recommendations. I am sure we could always
do more and more and more, but what we have done is taken what has been
the recommendations of Homeland Security in each and every one of these
areas.
They have made it very clear that in carrying forward and reaching
these recommendations it is going to take a combination of different
elements. It is going to take their own kind of manpower to be able to
reach this. It is

[[Page S6527]]

going to take the technology to be able to reach it--over what period
of time in terms of the contracting, and all the rest.
But as to what was necessary in terms of securing the border, that
was it. We are all for it. This is what they told us. That is what we
have accepted. We have gone over the list. I will make it part of the
Record. It goes over the numbers of hires, going all the way into the
Border Patrol agents. They come into the whole issue of border barriers
and surveillance, the number of miles each year planned, what they
believe is necessary. They review what they believe is the timeline for
the catch and return, the number of beds that are going to be
necessary. They go through the various milestones, the start-up costs,
the actual recurring costs.
They have outlined all of this in very careful detail. That is what
we have done. Every Member of the Senate ought to understand, these are
Homeland Security's recommendations to secure the border, and that is
what we have included in the legislation. It is always possible, I am
sure, to be able to do more. We have done what was recommended to
secure it, and I think it is a very effective program.
Mr. President, I ask unanimous consent that the material be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

STAFF ENHANCEMENTS FOR BORDER PATROL--GOAL: INCREASE BORDER PATROL
AGENTS BY 6,000 BY DECEMBER 31, 2008
------------------------------------------------------------------------
Projections FY07 FY08 FY09 Total
------------------------------------------------------------------------
Starting Onboard................ 12,319 14,819 17,819 18,319
Hires........................... 3,900 4,350 850 9,100
Addition........................ 2,500 3,000 500 6,000
Attrition....................... 1,400 1,350 350 3,100
End of Year Onboard............. 14,819 17,819 18,319 ........
------------------------------------------------------------------------

STRONG BORDER BARRIERS AND SURVEILLANCE
[Dollars in millions]
------------------------------------------------------------------------
Total
FY06 FY07 Calendar estimated
actual planned year 08 cost FY06-
\1\ FY08
------------------------------------------------------------------------
Miles of primary fence........ 75 +70 \1\ +225 $998M
Miles of vehicle barriers..... 57 TBD 200 $176M
Ground-based radar and camera 0 TBD 70 \2\ $737M
towers (technology)..........
Unmanned Aerial Systems (UAS) 1 +1 \3\+2 $85.6M
(A&M)........................
------------------------------------------------------------------------
\1\ Equals 370 miles total.
\2\ Reflects the fully loaded costs of the integrated technology
solution, including engineering, unattended ground sensors,
communications, etc.
\3\ Equals 4 total UAS.

Key Assumptions of Timeline

USCIS will publish regulations governing the TWP within 6
months of enactment, pursuant to expedited rulemaking
authority.
USCIS will begin accepting and adjudicating applications 6
months after enactment of the legislation.
USCIS will stop accepting applications 18 months after
enactment.
A total of 12.5 million unauthorized aliens may be eligible
for the immigration benefits associated with the TWP, of
which approximately 93% are expected to apply for the
program.
Additional temporary sites will be established, equipped,
and manned to support processing requirements above the
current Application Service Center (ASC) capacity.
Not every applicant will require an adjudication interview
(based upon S. 2611 requirements--currently constructing
plans for interview of all applicants).
TWP applicants will be screened against all relevant
security checks.
USCIS will receive the funding and resources necessary to
upgrade systems infrastructure to handle increased processing
demand. Funding must be made available to DHS at least 6
months before applications can be accepted.
Mr. KENNEDY. Mr. President, I now move to table the amendment of the
Senator from New Hampshire.
Mr. GREGG. Mr. President, I make a point of order a quorum is not
present.
Mr. KENNEDY. Mr. President, I would make a motion to table the
amendment of the Senator----
Mr. GREGG. Mr. President, I will make a point of order a quorum is
not present.
Mr. KENNEDY. From New Hampshire, and I ask for the yeas and nays.
Mr. GREGG. I make a point of order a quorum is not present, Mr.
President.
Mr. KENNEDY. Yeas and nays, Mr. President.
The PRESIDING OFFICER (Mr. OBAMA). Is there a sufficient second?
Mr. KENNEDY. Yeas and nays.
Mr. GREGG. Mr. President, a quorum is not present. I make a point of
order that a quorum is not present.
Mr. KENNEDY. The yeas and nays, Mr. President.
The PRESIDING OFFICER. There is not a sufficient second.
The clerk will call the roll on the quorum.
The assistant legislative clerk called the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, if I could have the attention of the
Senator from New Hampshire, we were necessarily absent during the
earlier presentation by the Senator from New Hampshire at a meeting
with----
The PRESIDING OFFICER. The Senator is advised that a motion to table
has been made. It is not debatable.
Mr. KENNEDY. I withdraw the motion to table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I was under the impression we had gone
through the debate and discussion. I had indicated I was going to make
a motion to table. When the Senator from New Hampshire came to the
floor, I was glad to withhold as the Senator remembers. The Senator, as
I understood it, had finished his comments, and I made brief comments.
I am more than glad, if the Senator wants to address the amendment.
We have just been in the process of trying to move along. I have no
intention of cutting him off. We have not attempted to cut anyone off.
So if he had that impression, I regret it. I say to the Senator from
New Hampshire, we have been longtime friends, and we have been trying
to have a process of moving this along. I had not known, at least on
our side, we had other people prepared to speak. I had not heard there
were others who were prepared to speak on the other side. So that was
basically the reason for moving ahead.
But I am glad to withdraw the motion, as I was earlier. I would hope
the Senator would understand, and we would hear from the Senator, if he
so desires. We want to, at some time, reach some judgment on the
amendment, but I am glad to work that out with the Senator, as I have
tried to over the years.
Mr. GREGG. Mr. President, I appreciate the courtesy of the Senator
from Massachusetts, and I will take 2 minutes to respond to his
comment, and then I would be happy to have the Senator renew his
motion. That was all the time I wished to use to respond--the issue
being I had not been aware the Senator was going to respond to my
comment. But I did believe his comments deserved a response, and that
is what I was seeking recognition to do at the time I was cut off.
However, I do appreciate the Senator's courtesy.
In response to the specifics of the Senator's representations that
the Department's position is that these numbers, as contained in the
bill, will accomplish operational control of the border, I find that to
be entirely inconsistent and unsupportable, first, from the testimony
of the Department's lower level individuals--who are in charge of these
agencies--before the Appropriations subcommittee which I chaired at the
time, specifically, the Director of the Border Patrol, Mr. Bonner, who
made it very clear he needed 20,000 border agents; and, secondly, the
fact they had let a contract which has in it significantly more numbers
in the area of virtual fencing towers than are in this bill. If they
did not need those, why did they have a contract which calls for them?
So I think on its face the representation of that proposal may be
that is what they can do in 18 months, but it is not what they need to
do for operational control.
The proposal I have is the numbers necessary to obtain operational
control: 2,000 more border agents than called for in the bill, 2,700
more beds than called for in the bill, 35 more towers for virtual
fencing than called for in the bill, and 100 miles more of vehicle
fencing.
It is not outrageous, not inconsistent, not inappropriate, and will
actually strengthen this bill and make the American people believe we
are doing something constructive in the area of border security.
With that, I appreciate the courtesy of the Senator from
Massachusetts in allowing us to reopen the debate and ask unanimous
consent that further

[[Page S6528]]

debate on this amendment be ended and that the Senator be allowed to
make his motion, which he has a right to do anyway.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. 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. KENNEDY. 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. KENNEDY. Mr. President, I ask unanimous consent to vitiate the
yeas and nays on the Gregg amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. KENNEDY. Mr. President, we are prepared to vote.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1172) was agreed to.
Mr. KENNEDY. Mr. President, I thank the good Senator from New
Hampshire. We continue to make progress. I thank him. I know his strong
views on this, and we will continue to work on it as a matter of
enormous importance. I know the Senator from Arizona and others feel
very strongly. We want to have a secure border. People have differing
views, but we will work very closely to try and achieve the objectives,
and we will work very closely with him as we go to conference and in
conference as well. We all understand this is a work in progress.
Now, for the Members, I know Senator Cornyn wanted to offer an
amendment. As I understand it, he is still in the Armed Services
Committee. We were ready to go on our side. We had an amendment of the
Senator from North Dakota which is going to sunset the temporary worker
program. He is giving thought to that. If he would like to--I see
Senator Cornyn is here now. We may go out of sync here, but if we
wanted to go ahead with that--I see my friend from Arizona.
I yield the floor.
Mr. KYL. Mr. President, in order to take the next 10 minutes or so,
my understanding is that Senator Cornyn will be ready in a few minutes,
but in the meantime, a couple of people have been waiting patiently to
speak for maybe no more than 5 minutes or so. I think the Senator from
Tennessee would like to do that.
Mr. CONRAD. Will the bill managers yield for a question?
Mr. KENNEDY. Sure.
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Mr. CONRAD. Mr. President, for the information of the body, could the
Senators give us some picture on the voting circumstances this evening?
Is there a clear picture on whether you might expect additional
rollcall votes tonight or would they be debated tonight and held over
until the morning? What do the bill managers anticipate?
Mr. KENNEDY. Mr. President, I think we would like to try to at least
get another vote, possibly two. I think we will know more clearly in
about 15 minutes and we will notify our colleagues. I think we have
made some good progress. We had several of our colleagues--as always,
these are enormously important--from the Armed Services Committee and
others. We will probably have a brief window tomorrow.
The Senator from Arizona, Senator McCain, was here earlier and wants
to do an amendment on back taxes, and I have indicated I thought we
could probably do that in the morning and we will try to work out a
time with him. We are trying to follow going back and forth, but if
there are people here from a particular party who are prepared to go
ahead, we want to try to deal with that.
I think we will have a limited time in the morning. I don't know when
we are going to get the supplemental, but I am hopeful we would have at
least a window in the morning.
Mr. KYL. Mr. President, if I could interrupt my colleague to give a
couple of bits of further information, the next opportunity for an
amendment should be from the Democratic side. Senator Cornyn is ready
to proceed with an amendment, and also Senator Hutchison has an
amendment I think that is cleared on both sides that we could do by
voice vote, when that is appropriate. But the next amendment should
come from the Democratic side.
My suggestion would be, while we are deciding the immediate future
ahead of us, that Senator Alexander be allowed to proceed on a matter
that is unrelated, and then we could go to the Democratic side.
Mr. KENNEDY. That would be fine. I see the Senator from Iowa here who
wanted to make a comment as well.
Mr. KYL. Mr. President, up to 5 minutes for Senator Alexander.
Mr. CONRAD. Mr. President, might I inquire, is there any possibility
of having further debate tonight and votes in the morning in lieu of
additional votes this evening?
Mr. KENNEDY. That is always possible. We would like to check with the
leadership. Senator Cornyn has been extremely patient through this
process and has indicated at the start of the day that he would like to
be able to address the Senate on an issue. He has now returned. I would
like to see if we can't have maybe a short period here and then I could
try and make an assessment and let the Senator know. But I would be
very hopeful that we would be able to address Senator Cornyn tonight,
and then I could talk to the Senator from North Dakota and Senator
McCain. If we can get those lined up for the morning, maybe we will be
able to give an announcement about where we are.
Mr. CORNYN. Mr. President, if the Senator from Massachusetts will
yield, I am happy to offer my amendment tonight and wait to vote on it
tomorrow, if that suits the schedule of the bill managers. I wanted to
offer that. I would like to offer it tonight and have the debate
tonight, but if you would like to stack the vote up with others
tomorrow, that is fine.
Mr. KENNEDY. If we could proceed with the Senator from Tennessee for
5 minutes and the Senator from Iowa for 10 minutes, and then we will
announce what the plan is for the evening and for the morning. I ask
unanimous consent to do that.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.

Internet Tax Freedom Extension Act of 2007

Mr. ALEXANDER. Mr. President, today, Senator Carper and I introduced
the Internet Tax Freedom Extension Act of 2007. Other cosponsors were
Senators Feinstein, Voinovich, and Enzi. All of those Senators have
been interested in this subject for the last few years.
The bill would, very simply, extend a moratorium on Internet access
taxes by State and local governments for another 4 years. This is a
commonsense compromise of what can sometimes be a very complicated
discussion about continuing the moratorium, without blowing a hole in
the budgets of State and local governments.
We all want to be careful about so-called unfunded Federal mandates.
We want to respect State and local governments. But at the same time we
want to create an environment that encourages technology. We believe
this would do that.
The background of all this is, briefly, that originally Congress
passed the Internet Tax Freedom Act in 1998, which did an extraordinary
thing. It said State and local governments could not tax Internet
access for three years. That sounds like a good thing, but we could
just as easily pass a bill we might call the food tax freedom act,
because that would keep State and local governments from taxing food;
or because we are against income taxes, we might say the income tax
freedom act and ban Tennessee from having an income tax; or we might
say the sales tax freedom act, or the property tax freedom act, or the
telecommunications tax freedom act. But instead we created the Internet
Tax Freedom Act, meaning, in effect, that States could not tax Internet
access. The rationale was that the Internet and electronic commerce is
a fledgling industry, and Congress extended that in 2001.
In 2004, after extensive debate, we worked out a compromise extending
this moratorium over the next 4 years.
The compromise we worked out in 2004, according to the National
Governors Association, may have saved

[[Page S6529]]

State and local governments up to $12 billion in revenue. All of us
want to keep taxes low, but here is where I am coming from. When I was
Governor, nothing made me angrier than for Members of Congress coming
up with a big idea to pass a law, take credit for it, and send the bill
to the Governors, legislators, mayors, and county commissions. That is
what we will do if we are not careful about the Internet access tax
because, as we saw 4 years ago, telephone calls moved to the Internet.
If we banned taxes on telecommunications as part of Internet access,
telephone calls over the Internet would be free from taxation.
That sounds good, except States might have to increase college
tuition, increase sales tax on food, or some States might have to put
in, for the first time, a State income tax.
Mr. President, $12 billion in revenue is a lot of money. The
definition of Internet access that is in this new compromise that
Senator Carper and I introduced on the moratorium would, for the next 4
years, protect State and local governments, while continuing the
moratorium on Internet access. It is sensible. I think we will debate
it more over time. Maybe it will even be accepted by all parties. I
wanted to signal on my behalf, Senator Carper's behalf, and on behalf
of the National Governors Association, the National Conference of
Mayors, and the National Association of Counties, that we believe it is
very important to do no harm to State and local government. If we want
to give a tax break to the telecommunications companies or to Internet
companies, then we in Congress should pay for that and not send a bill
to State and local governments.
This avoids our having to do that because the moratorium carefully
defines Internet access to mean States are free to continue to make
their own decisions. This doesn't mean States should attempt to tax the
Internet; it means States may, if they choose, impose a sales tax on
Internet services, just as States may impose a tax on food, or on
medicine, or on gasoline, or may impose a tax on income. That is the
job of State and local government. That is not the job of the Congress.
I am glad to join with Senators Carper, Feinstein, Voinovich, and
Enzi in introducing the Internet Tax Freedom Extension Act of 2007. I
am glad to extend a commonsense moratorium on State and local taxation
of Internet access, and I look forward to passage of that legislation
before long.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
(The remarks of Mr. Harkin pertaining to the introduction of S. 1469
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. HARKIN. Mr. President, I yield the floor, and I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Cantwell). Without objection, it is so
ordered.
Mr. SPECTER. Madam President, I believe we are now prepared to turn
to the Cornyn amendment.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, is there a pending amendment?
The PRESIDING OFFICER. There is.

Amendment No. 1184 to Amendment No. 1150

(Purpose: Establishing a permanent bar for gang members, terrorists,
and other criminals)

Mr. CORNYN. Madam President, I ask unanimous consent to set aside the
pending amendment, and I send an amendment to the desk and ask for its
immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside.
Mr. SPECTER. Madam President, if the Senator from Texas will yield
for a question.
We are trying to determine what is going to happen on the balance of
the evening. Senators, understandably, at 6 o'clock, are asking if
there is going to be a vote this evening. I understand from our
conversation in the cloakroom that there are two Senators who are
considering joining with you and you are not now prepared to enter into
a time agreement. But if those Senators would come to the floor and let
us know what they intend to do, we will be in a position to see if we
can vote. We wish to vote this evening, but we don't want to keep
people around here if we are not going to vote.
Mr. CORNYN. Madam President, I agree with the distinguished Senator
from Pennsylvania and will certainly try to work to accommodate
everybody. It is not my intention to keep people hanging around here if
we are not going to vote, but I can't enter into a time agreement
specifically yet until we can get some people who are examining the
amendment, the cosponsors who might wish to speak on it.
Mr. SPECTER. Maybe I could direct the question to the Senator from
Texas. Would it be out of line to identify the Senators we have in mind
so we can direct them to the floor to get this resolved?
Mr. CORNYN. I hate to identify them until they have made a decision
to cosponsor the amendment or to speak on it, because they may want to
study in confidence and then make a decision whether they want to
cosponsor it or come to the floor. We are in communication with them,
encouraging them.
Mr. SPECTER. Madam President, they know who they are. We would ask
them to come to the floor.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Texas [Mr. Cornyn] proposes an amendment
numbered 1184 to amendment No. 1150.

Mr. CORNYN. Madam 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 printed in today's Record under ``Text of
Amendments.'')
Mr. CORNYN. Madam President, I know we are all anxious to proceed. No
one is more anxious than I to proceed with the hearing of amendments
and debate. I think colleagues will, when they hear what this amendment
is about--and I apologize that, due to the legislative counsel being
backed up drafting amendments, we have only recently been able to
distribute the amendment text, but I think as I describe this
amendment, my colleagues will share my concern with two problems that
are in the underlying bill.
First, this amendment would do two things: The amendment would
provide technical corrections to what I can only assume are drafting
oversights in the underlying bill as well as close loopholes in the
current law. These technical corrections include closing loopholes that
fail to permanently bar from the United States and prohibit awarding of
any immigration benefits to the following categories of individuals:
No. 1, persons associated with terrorist organizations; No. 2, violent
gang members; No. 3, sex offenders; No. 4, alien smugglers who use
firearms; and, No. 5, repeat drunk drivers.
The question I put to my colleagues is whether Congress should
permanently bar from the United States and from receiving any
immigration benefit the persons in the categories I have just described
and others who are dangerous to our society. I sincerely hope none of
my colleagues would answer this question in the negative.
Let me point out a couple of examples of what I will call the
technical fixes that are sorely needed. Current law prohibits U.S.
citizens convicted of sex crimes against minors from bringing a
relative into the country. This bill, however, does not specifically
prohibit aliens who would be removed from the country because they are
sex offenders and fail to register as such from entering the United
States and getting legal status, such as lawful permanent residence
status.

This, as I say, is what I believe to be an oversight. Perhaps in the
haste in which the bill was drafted it has been left out, but it needs
to be fixed, obviously.
The bill also retains a loophole under current law that would allow
an alien who has been repeatedly convicted of driving while intoxicated
to remain in the United States and get legal status, such as a Z status
or a green card.
The bill also retains the loophole in current law that allows an
alien who belongs to a terrorist organization, or perhaps even
committed terrorist acts

[[Page S6530]]

and has not yet been removed from the United States, to get legal
status.
Now, lest my colleagues think I am exaggerating, let me provide a
real-world example of this loophole. Last year, Mohammed El Shorbagi
pleaded guilty to providing material support to Hamas. His act of
providing material support to Hamas would not have barred him from
establishing good moral character under current law because it is not
one of those grounds specifically included in the list of acts that
prevent an alien from establishing ``good moral character'' under our
immigration laws.
Now, I would hope these what I would call technical fixes are the
kinds of commonsense solutions my colleagues would support. We have to
ensure those aliens who have committed crimes, such as failure to
register as a sex offender, or alien smuggling while using a firearm,
are permanently barred and ineligible for benefits. We must also ensure
those aliens who have committed acts or who engage in conduct in
association with a terrorist organization, or perhaps have even
committed terrorist acts themselves, are rendered permanently
ineligible for any legal status and are barred from our country.
Finally--and this is not a technical fix; this, I believe, is a
conscious decision on the part of the bill drafters to omit this
category of individuals--my amendment would close the loophole in this
bill that allows legalization of those illegal aliens who have already
had their day in court and violated court-ordered deportations. These
are known as absconders and, in fact, have committed a felony, if found
guilty of their failure to deport once ordered deported, or if they
have been deported and simply reentered the country.
Unlike the first half of my amendment, this is not a technical
correction. In other words, the decision to legalize this population of
illegal aliens was no drafting oversight.
Mr. LEAHY. Madam President, I ask the Senator from Texas to do me the
courtesy of allowing me 1 minute to take care of something that is
going to be accepted, and that is going to modify an amendment that is
to be accepted.
Mr. CORNYN. Madam President, I yield for that purpose but claim my
right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont.

Amendment No. 1165, as Modified, to Amendment No. 1150

Mr. LEAHY. Madam President, I ask unanimous consent that the pending
amendment be set aside, and I call up amendment No. 1165.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I ask unanimous consent that Senators
Casey and Schumer be added as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from Vermont [Mr. Leahy], for himself, Mr.
Kohl, Mr. Casey, and Mr. Schumer, proposes an amendment
numbered 1165, as modified, to amendment No. 1150.

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

In section 218E(d) of the Immigration and Nationality Act
(as added by section 404(a)), strike paragraphs (2) and (3)
and redesignate paragraph (4) as paragraph (3).
At the end of section 218E, add the following:
``(i) Special Rule for Aliens Employed as Dairy Workers.--
Notwithstanding any other provision of this Act, an alien
admitted under section 101(a)(15)(H)(ii)(a) for employment as
a dairy worker----
``(1) may be admitted for a period of up to 3 years;
``(2) may not be extended beyond 3 years; and
``(3) shall not be subject to the requirements of
subsection (h)(4).
In section 218G of the Immigration and Nationality Act (as
amended by section 404(a)), strike paragraph (11) and insert
the following:
``(11) Seasonal.--
``(A) In general.--The term `seasonal', with respect to the
performance of labor, means that the labor--
``(i) ordinarily pertains to or is of the kind exclusively
performed at certain seasons or periods of the year; and
``(ii) because of the nature of the labor, cannot be
continuous or carried on throughout the year.
``(B) Exception.--Labor performed on a dairy farm shall be
considered to be seasonal labor.
At the end of section 404, add the following:
(c) Conforming Amendment.--Section 101(a)(15)(H)(ii)(a) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(a)) is amended by inserting ``or work on a
dairy farm,'' after ``seasonal nature,''.

Mr. LEAHY. Madam President, this modification is required by the
authors of the bill in order for dairy provisions to be accepted into
this bill. I have attempted through this language to ensure as best we
can that our Nation's dairy farmers have adequate access to labor in
the future. This amendment only deals with prospective immigration and
is focused on dairy only.
Dairy is a year-round operation where interruptions to a farmer's
labor force can have significant consequences--the H-2A provisions as
they exist in the bill now do not adequately address the unique needs
of dairy because they permit only 10-month terms of work. This sort of
interruption does not work for dairy farmers, who need year-round,
dependable employees.
In the AgJOBS legislation that this body passed last year and that we
reintroduced this year, I supported a much broader provision to address
the unique needs of the dairy industry. That provision had the
overwhelming endorsement of America's family dairy operations.
Unfortunately, there were objections from the Bush administration and
the authors of the bill now pending, so I have worked with the managers
of this bill to craft this compromise.
This modification would enable dairy farmers to have multiple avenues
to employ legal workers in the future. First, under the H-2A program,
dairy farmers would have the ability to hire workers for a 3-year
period after which time the workers would return home. Second, this
amendment would refine the H-2A program to allow dairy farmers to more
easily obtain workers under the normal H-2A time frame of 10-month work
periods. In combination with available opportunities under the Y visa
program, these changes should provide significant opportunities for
America's dairy farmers to obtain future legal workers to meet their
needs. I urge support for this modified amendment to ensure that
essential changes for dairy farmers become part of this legislation.
Madam President, I thank the Senator from Texas for his courtesy.
Mr. GRAHAM. Madam President, there is no objection on our side to
this amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1165), as modified, was agreed to.

Amendment No. 1168 to Amendment No. 1150

Mr. GRAHAM. Madam President, if I could request the indulgence of
Senator Cornyn, on behalf of Senator Hutchison, I call up amendment No.
1168 and ask unanimous consent for its immediate consideration.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The legislative clerk read as follows:

The Senator from South Carolina [Mr. Graham], for Mrs.
Hutchison, for herself Mr. Bingaman, Mr. Domenici, Mr.
McCain, Mr. Kyl, Mrs. Feinstein, and Mr. Cornyn, proposes an
amendment numbered 1168 to amendment No. 1150.

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

(Purpose: To provide local officials and the Secretary of Homeland
Security greater involvement in decisions regarding the location of
border fencing)

On page 6, line 11, strike the second period and insert the
following: ``;
(C) in paragraph (2), as redesignated--
(i) in the header, by striking ``Security features'' and
inserting ``Additional fencing along southwest border''; and
(ii) by striking subparagraphs (A) through (C) and
inserting the following:
``(A) Reinforced fencing.--In carrying out subsection (a),
the Secretary of Homeland Security shall construct reinforced
fencing along not less than 700 miles of the southwest border
where fencing would be most practical and effective and
provide for the installation of additional physical barriers,
roads, lighting, cameras, and sensors to gain operational
control of the southwest border.

[[Page S6531]]

``(B) Priority areas.--In carrying out this section, the
Secretary of Homeland Security shall--
``(i) identify the 370 miles along the southwest border
where fencing would be most practical and effective in
deterring smugglers and aliens attempting to gain illegal
entry into the United States; and
``(ii) not later than December 31, 2008, complete
construction of reinforced fencing along the 370 miles
identified under clause (i).
``(C) Consultation.--
``(i) In general.--In carrying out this section, the
Secretary of Homeland Security shall consult with the
Secretary of Interior, the Secretary of Agriculture, States,
local governments, Indian tribes, and property owners in the
United States to minimize the impact on the environment,
culture, commerce, and quality of life for the communities
and residents located near the sites at which such fencing is
to be constructed.
``(ii) Savings provision.--Nothing in this subparagraph may
be construed to--

``(I) create any right of action for a State, local
government, or other person or entity affected by this
subsection; or
``(II) affect the eminent domain laws of the United States
or of any State.

``(D) Limitation on requirements.--Notwithstanding
subparagraph (A), nothing in this paragraph shall require the
Secretary of Homeland Security to install fencing, physical
barriers, roads, lighting, cameras, and sensors in a
particular location along an international border of the
United States, if the Secretary determines that the use or
placement of such resources is not the most appropriate means
to achieve and maintain operational control over the
international border at such location.''; and
(D) in paragraph (5), as redesignated, by striking ``to
carry out this subsection not to exceed $12,000,000'' and
inserting ``such sums as may be necessary to carry out this
subsection''.

Mrs. HUTCHISON. Madam President, I rise today to speak to an
amendment and resolve an issue impacting the citizens of our country
that live along the U.S.-Mexican border.
I have long stressed the need to secure the borders of the United
States--not only our southwest border with Mexico but also our northern
border with Canada and our maritime borders, coastlines, and ports of
entry.
I have consistently supported and voted in favor of border security
efforts--such as the installation of reinforced fencing in strategic
areas where high trafficking of narcotics, unlawful border crossings,
and other criminal activity exists. I have also supported installing
physical barriers, roads, lighting, cameras and sensors where necessary
.
The Secure Fence Act of 2006 was passed by Congress and signed into
law by the President, and it signaled a major initiative to secure the
border with Mexico and Canada.
We must address border security so that we can move forward to
address comprehensive immigration reform.
I will continue to champion border security measures and strongly
support the efforts of my colleagues to strengthen our southwest
border--protecting our citizens from threats of terrorism, narcotic
trafficking, and other unlawful entries. However, I am concerned that
Congress is making decisions about the location of border fencing
without the participation of State and local law enforcement officials
working with the Department of Homeland Security. The location of
fencing should not be dictated by Members of Congress who have never
visited our border.
Our border States have borne a heavy financial burden from illegal
immigration, and their local officials are on the front lines. Their
knowledge and experience should not be ignored. Texas shares
approximately one-half of the land border between the United States of
America and the Republic of Mexico. Our State and local officials and
those in California, Arizona, New Mexico, and Texas should not be
excluded from decisions about how to best protect our borders with
their varying topography, population, and geography.
Local officials and property owners in my home State of Texas--
particularly in the areas of El Paso, Del Rio to Eagle Pass, and Laredo
to Brownsville--cited in the Secure Fence Act, under current statutory
law, do not have an opportunity to participate in decisions regarding
the exact location of fencing and other physical infrastructure near
their communities.
To address this issue, I hosted a meeting in my Washington office, on
January 17, 2007, with DHS Secretary Michael Chertoff, my colleague
from Texas, Senator John Cornyn, mayors from the border cities in
Texas, and representatives of the private sector. That meeting began a
dialogue with our local representatives in Texas and the Federal
Government. I look forward to helping ensure that this dialogue
continues.
The Hutchison-Bingaman Amendment, No. 1168, cosponsored by Senators
Cornyn, Kyl, McCain, Feinstein, and Domenici, addresses these issues
and provides local and State officials greater involvement in decisions
regarding the location of border fencing.
I urge the adoption of my amendment.
Mr. GRAHAM. Madam President, I urge the adoption of the amendment.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 1168) was agreed to.
The PRESIDING OFFICER. The senator from Texas.

Amendment No. 1184

Mr. CORNYN. Madam President, I ask unanimous consent that my
amendment be reinstated as the pending amendment.
The PRESIDING OFFICER. The amendment is once again pending.
Mr. CORNYN. I thank the Chair.
Madam President, I have discussed what I would call technical
corrections or oversights that have been left out of this bill, in
haste, perhaps, because I know that following the negotiations that
went on for several weeks leading up to the announcement of an
agreement by a bipartisan group of Senators on Friday, there was a lot
of effort made to try to then turn that agreement into bill text. It
wasn't until roughly midnight, I believe on Saturday night, that an
original, or I should say a rough draft for discussion purposes was
created; and then, if I am not mistaken, it was the night before last,
about 9 o'clock, when this original amendment was laid down, this
substitute amendment, which actually reflects bill text, that we could
then go to legislative counsel to try and craft our amendments to be
addressed.
Before I talk a little bit more about the second part of my
amendment, which I think was consciously omitted from the bill, I ask
unanimous consent that Senator Ben Nelson of Nebraska and Senator
DeMint of South Carolina be added as original cosponsors to my
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. Madam President, the second part of my amendment has, I
think it is fair to say, a substantial impact on the underlying bill,
but one I hope my colleagues will agree is necessary and important to
adopt.
My amendment would close the loophole in this bill that allows
legalization of those illegal aliens who have already violated court-
ordered deportations. They are sometimes known as absconders because
they literally have absconded from the law, but they are, in fact,
under section 243 of the Immigration and Naturalization Act felons by
virtue of their having absconded either after they have been ordered
deported--they have simply gone on the lam and been fugitives from
justice--or they have left the country pursuant to their order of
deportation and then reentered the country illegally. They are, under
section 243 of the Immigration and Naturalization Act, felons if found
guilty of those offenses.
Unlike the first half of my amendment, this is not, as I said, a
technical correction. In other words, the decision to legalize this
population was no drafting oversight. It was a conscious part of the
negotiated package that is now represented by the substitute amendment
pending before the Members of the Senate. The drafters of this bill
have made a conscious decision that Congress will allow exceptions for
individuals who are illegally in the United States, in defiance of a
court order, as well as those who have previously been deported from
the United States pursuant to a court order and have again reentered
illegally.
It is important to note that Congress has determined that each of
these crimes is a felony. The laws, as I said, are already on the
books. These acts of defiance of our legal system are not actions which
would signal an individual's likelihood of future compliance with the
laws of the land. I don't think Congress should be in the business of
allowing exceptions to a class of individuals who can reasonably be
dubbed as fugitive aliens.

[[Page S6532]]

In fact, it was Secretary of the Department of Homeland Security
Michael Chertoff who said during our negotiations that illegal aliens
who have defied our court system after having been given full due
process of law do not deserve to be rewarded with legalization.
Unfortunately, the drafters of this bill, in an effort to accommodate
certain advocacy groups, have ignored Secretary Chertoff's commonsense
observation, what is being peddled as ``discretion'' by way of a
``waiver.''
We can't guarantee the American people that future Presidents will
appoint, nor the Senate confirm, Secretaries of Homeland Security with
the good sense and judgment of Secretary Chertoff. Thus, I think we
need to eliminate any discretion in allowing these individuals to
remain in the country and obtain the benefits of this legalization. I
submit that discretion is something Congress gives away to a
bureaucracy when Members don't have the intestinal fortitude to create
a bright-line rule. This bright-line rule would affect roughly 700,000
absconders who are still in the United States. The underlying bill
would allow them a path to legal status and perhaps even to
citizenship. My amendment would say these people have had their
opportunity to have their day in court and do not deserve the benefits
that this underlying bill would give to other persons who have not
similarly defied our U.S. legal system and, indeed, have committed,
perhaps, felonies.

I ask my colleagues this. What is the message we send about the rule
of law in America when Congress would not even categorically prohibit
rewarding those illegal aliens who have defied lawful orders? What is
the message we are sending to immigrants who are lawfully waiting
outside the country when we reward those who have not simply violated
our laws by entering illegally but who have also thumbed their noses at
our legal system, after having been ordered or actually been removed?
I urge my colleagues to reject the policy in this bill that would
reward felony conduct with legal status. I hope my colleagues will
support me in that effort.
I yield the floor.
Mr. DORGAN. Madam President, the Senator from Texas asked a question.
I think the answer is probably fairly obvious. What is the message we
send to people around the world who applied for status to come to this
country through the immigration quota process? There is a process that
is our legal immigration process. What is the message to those folks
who, perhaps 3 years ago, 5 years ago, 9 years ago, filed a petition
only to discover that if they had walked across the border on December
31 of last year, they would, with this legislation, be deemed to have
been here legally? That is the message. It is sort of a Byzantine
message as far as I am concerned.
Yesterday something happened that was quite interesting. I attempted
to eliminate the so-called guest worker program or the temporary worker
program by which millions of additional people who do not now live in
this country would be invited in to take American jobs. I attempted to
eliminate that. I failed to do that. I will next offer an amendment at
some point, perhaps tomorrow morning, that will sunset the temporary
worker program. If we cannot eliminate it, at least let's put an end to
it--put a sunset on it.
During the debate yesterday, something fascinating happened. We are
told repeatedly on the floor of the Senate that this bill is a piece of
legislation that provides border security because most of us know that
when you start dealing with immigration, the first step, the first baby
step is to provide border security. If you do not do that, all you do
is set up, another 10 or 15 years from now, exactly the same debate and
provide amnesty for another 10 or 15 million people.
We have done that before, in 1986. We have heard exactly the same
arguments: We are going to have border security, we are going to have
employer sanctions, we are going to shut down illegal immigration, and
we are going to have nirvana. The fact is, none of that worked. We have
done this before.
What happened yesterday was fascinating to me. In an attempt to shut
down the temporary worker provision, I was told by the people who
constructed this proposal that if you shut down the temporary worker
provision by which we will bring people into this country who are not
now here to take American jobs--if you shut down the temporary worker
provisions, what will happen, they said, is people will come across
illegally anyway.
I said: I don't understand your point. First, you said you have
written a bill that provides border security and stops illegal
immigration. Now you are saying if we get rid of the temporary worker
provision, what will happen is we will have illegal immigration anyway.
You can't have it both ways. Either this bill does what is advertised
and provides real border security or it doesn't.
Those who put the bill together told us yesterday it doesn't have
that border security because they believe they have to designate those
who are coming across as legal, therefore, temporary workers, because
if they did not do that, they would come across and we would call them
illegal. That is the most unbelievable thing I ever heard.
They cobbled together this proposal. I said yesterday it reminds me
of the old saying that a camel is a horse produced by a committee. They
have cobbled together this camel of policy here with several different
pieces, saying, first, because I believe they understand the politics
of it that requires them to say this, we have provided for border
security when, in fact, they have not. That is not the case. All they
have done is created the same promises I heard 21 years ago.
Then they say, but we must, even as we decide to say to this 12
million who are here, including those who came across the last week of
December last year: By the way, you are now legal and given a work
permit--we must, in addition to that, allow millions more to come in.
Yes, you get millions more when you do 400,000 a year for 2 years,
have them go back for a year, come back 2 more years, have them go back
a year, and have 2 more years and accumulate that, and you have at the
very least, without even counting families, 12 million workers in a few
years. They say we have to do that--invite others to come in to take
American jobs--because if we don't, they will come across the border
anyway. That is a serious admission of failure, in my judgment, in the
bill that is brought to the floor of the Senate.
I didn't intend to come here to say anything, but I heard my
colleague from Texas ask, What is the message? The message is a
Byzantine message to those who believed there was a legal way to try to
come to this country, a legal process by which we have immigration
quotas from various countries and they, thinking it was all on the
level, actually made application to say I would like to come to the
United States of America and I am willing to wait. I waited 5 years or
7 years, they say, only to discover that as of today, if this bill
passes, we say you should have come across on December 28 or so into
this country. You could have gotten on a plane on a visitor's visa with
a full intention of never going back, or walked across the border
someplace, and this Congress with this legislation would say to you: We
have a great surprise for you. You came across illegally and we now
desire to say to you: You are legal, you have legal status and a work
permit.
What kind of message? We know the answer to that. It is a Byzantine
message that makes no sense at all.
Is immigration an issue? Yes, it is. But this bill will not solve it.
I intend to offer an amendment in the morning that will establish a
sunset on the provision called the temporary worker provision. But even
that will not solve the problems of this legislation.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CORKER. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Tennessee is recognized.
Mr. CORKER. Madam President, I rise today to, first of all, thank our
leadership for allowing a true debate to take place on this issue. I
know at one time it was discussed that we would pass this huge piece of
legislation, that affects so many people, in 3 days. Because of the
acquiescence of the bill

[[Page S6533]]

managers and leadership, we are truly going to have 3 weeks of debate.
You heard the Senator from Texas offer an amendment to make this
legislation better; and the Senator from North Dakota, to offer his
views. I think this whole process has been very healthy.
One of the things we are trying to address in this bill is a
situation where our immigration has been broken, the system has been
broken for many years. In 1986, legislation was offered to try to solve
this problem. What has happened is it has gotten even worse, so there
has been, obviously, more thought put into this bill.
I appreciate again the many amendments and the discussion that has
taken place. Many of the things we have talked about have addressed the
legalities, have addressed some of the technicalities in our
immigration system. It seems to me, one of the things we have not
addressed--while we have tried to address fairness to businesses, we
tried to address fairness to immigrants, we tried to address fairness
to families--one of the things I think we have not addressed is a sense
of fairness to the American citizen.
What I mean by that is this. There is a sense of fairness that we see
many times on the floor that is not addressed by the fact that we have
about 12 million people in this country today illegally. People see
this bill as straight amnesty, where all of a sudden we are going to
make it legal that if you have been here working, for however long, you
become legal in this country by virtue of being here.
In many cases, people have talked about some of the draconian
measures that require people to actually return home to their
countries. Yet this bill, in some cases, does that. Certainly, to
become a green card holder, somebody has to return home to their
country before coming in. That is something Americans think is fair.
If you want to be a temporary worker in this country, according to
this bill, what you would do is work here for 2 years, as the Senator
from North Dakota responded, then you would leave and go back for a
year, and then you would come back into our country. Yet that is not
perceived to be draconian and I do not think it is at all. But the one
provision that seems to me to hit at the essence of the American
frustration that is not in this bill, is the fact that we have some
triggers that are going to cause our borders to be secure and make us
be able to track people in an appropriate way--the administration said
this can take place over the next 18 months--but what we are not doing
is asking the people who are here in our country illegally to actually
return home and come back through legal channels.
It is that point, I think, that has divided the American people, the
fact that this bill does not address the inequity of allowing those
people to remain here. These are people who came here, obviously, to
support their families, and we understand what the motivation is for
many people to be here, but this bill does not address that inequity.
What I propose tonight and I am working with other Senators to
hopefully make happen after we come back from recess, is to actually
have a provision in this bill that treats people who are here illegally
like those who wish to have a green card, like those who would be
temporary workers in this bill. I would ask that other Senators work
with me and others to create an amendment to this bill that actually
would cause, over a reasonable amount of time, people who are working
in this country to return to their home country and then come back
through legal channels. I think that strikes at the very core of what
so many Americans believe is so inappropriate about having illegal
immigrants, illegal workers, automatically made legal.
I think that is a central fallacy in this bill as it has been offered
today. After many of these technical amendments are agreed to over the
course of the next few days, and as we come back from recess, I look
forward to working with other Senators to try to ensure that if this
immigration bill passes, it passes in a way that meets the sense of
fairness the American public believes this bill ought to have; that it
addresses that inequity of people who jumped in front of the line and
came here, being here illegally and yet being able to benefit without,
during a reasonable period of time, returning home and coming back
through legal channels, once we have the mechanisms in place to allow
people to do that. I hope to have the opportunity to work with others
in this body to make that happen.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MENENDEZ. Madam President, I wish to rise briefly to speak to the
amendment of the Senator from Texas. I think I caught him describing it
as a ``technical one.'' At first blush, having just seen it for the
first time, looked at it and having seen the intersection of what he
seeks to do throughout title II of the bill, it is far from technical;
it is very substantive. I appreciate that he has very substantive
positions that might be different from mine, but they are very
substantive, they are not technical. They go, in some cases, to the
heart of due process for individuals, and they go to the heart of
undoing what some cases in the appellate division and beyond have
decided is the appropriate law of the land.
I just wish to start off by saying that I certainly hope this
amendment will not come to a vote tonight because I think all of us
need to understand the nature, the scope, the breadth, the width of
what, in fact, is being offered here, which I truly believe is far more
than technical. So I just wanted to, so to speak, wave my saber early
for the distinguished Senator from Texas and say that I am sure he is
going to get a vote, but I will have to object if there is any
intention to seek a vote tonight. You have to take all of the 12 pages
that were just presented, intersect them, and see how they affect
different sections of the underlying statute, and those have real
meaningful consequences at the end of the day. I might agree with some;
I might strongly disagree with others. So I just wanted to make it
clear to the body that, from my perspective, it is a little bit more
than technical.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, I appreciate the concerns of my
distinguished colleague. It is a fair point; this is more than a
technical amendment. He may not have heard my entire earlier statement.
I indicated that some aspects of my amendment were what I thought were
technical, but there was a second part that was far from technical, it
was very substantive, and I knew it would be controversial because we
discussed it during the course of the negotiations in which the
distinguished Senator from New Jersey participated, as did I, and it
was, the best I can tell, consciously omitted from the draft. So my
effort here is to insert it by way of amendment. I do believe it
deserves full and fair consideration. People need to understand what
the impact of it will be.
Indeed, this whole subject matter has a lot of ramifications and a
lot of moving parts, and that is the reason I am so glad we have not
only this week but also a second week after the recess which the
majority leader has scheduled to conclude the debate and vote on the
bill.
I certainly understand the Senator's concerns, and I would welcome
the debate that will ensue, but I can understand why he would object to
a vote tonight. We have actually talked with the bill managers and
suggested that perhaps, if unanimous consent can be obtained, this
amendment would be set aside temporarily and perhaps other amendments
can be laid down and even voted on tonight but that we can wait until
tomorrow, perhaps, to schedule a vote on this after everyone has had a
chance to digest it and consider its ramifications.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Madam President, I appreciate the offer from the
distinguished Senator from Texas, and I certainly hope we will take his
offer because I would have to object if we were

[[Page S6534]]

to try to proceed tonight to a vote on his amendment. I think his
amendment is important. I think it has real consequences. There are
real consequences of substantive law, there are real consequences of
due process, and there are real consequences of equal protection. So
these are major legal issues which affect potentially millions of
people.
I appreciate the spirit in which he has offered it. I appreciate him
saying he is more than willing to give time. I hope the bill managers
would pursue that course of action and make sure that a vote on this
does not take place until sometime tomorrow so that we can digest all
of this and have the appropriate debate because legal protections are
very important in the context of what we are doing.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Madam President, I wish to spend, if I can, just a few
moments--I see my colleague from New Jersey is still on the floor, and
he will be joining me at an appropriate time in offering an amendment
dealing with parents of U.S. citizens. The Senator from New Jersey
speaks eloquently about this issue on a very personal level. I am proud
to be the author of an amendment with him and others to try to improve
this legislation.
This amendment would unite parents with their families in the United
States by increasing the cap on green cards issued to them, extending
the duration of the newly created parent visa, and ensuring that
penalties imposed on people overstaying this visa are not unfairly
applied to others, as they would be in this legislation.
Under current law, parents of U.S. citizens are defined as immediate
relatives, along with spouses and minor children, and are exempt from
green card caps. Under the proposed legislation, S. 1348, parents would
be removed from this category and subject to an annual cap of 40,000
green cards. This amendment increases the cap on green cards in this
bill to 90,000. That is about the average annual number of green cards
issued to parents of U.S. citizens.
Second, we are trying to extend the duration of the newly created
parent visitor visa to 180 days. Under this bill, the amount of time a
parent could stay here under a parent visitor visa is limited to 30
days per year. On the other hand, a tourist visa is valid for 180 days
per year. The idea that your parent can only come here for 30 days is
something that is offensive to a lot of Americans who believe in the
value and importance of children and parents being together.
This amendment would also ensure that penalties imposed on overstays
are not unfairly applied to others, as they would be in this
legislation. If the number of overstays exceeds 7 percent, individuals
from disproportionately high-risk countries could be barred from coming
to the United States on this visa program or the entire program could
be terminated.
I hardly think it necessary to make the case about the value of
parents and children being united for a period of time and what it
means, if you are parents yourselves, to be able to have grandparents
spend some time with their grandchildren.
We take great pride in that. We extol the value of family. One would
be hard pressed to hear a speech given by someone in public office
today, regardless of the subject matter, that doesn't at some point or
the other talk about how important it is to value families, to do
everything we can to keep families together, the importance of inter-
generational communication, grandparents and grandchildren, parents and
children, the value of that to a nuclear family. Certainly, we all
recognize we have serious issues of security that need to be dealt with
at our borders, doing what we can to provide for the legal status of
those who are seeking to come here through traditional means. It is a
major step backwards for a country that prides itself on allowing for
families to be together, understanding the importance of it, that we
would be talking about legislation that cuts by more than half the
average annual number of green cards needed for parents to visit their
children, dealing with them in a separate category, and providing
actually a longer visa for tourists than for parents.
No one knows who gets excluded when you go from no cap down to
40,000. Obviously, a lot of parents would be excluded in any given
year. As evidenced over the years, once parents do come for a limited
amount of time, that usually completes the family unit. They are not
likely to sponsor other relatives. U.S. citizens with parents abroad
should not be treated differently than those with parents here, to
provide that opportunity in time for them to be together.
This amendment would increase the green card cap to 90,000 so we are
meeting the average annual need and not creating an insurmountable
backlog. It would make sure that sufficient numbers of green cards are
available to parents who come to the United States. We extend the
parent visa to 180 days and make it renewable and valid for 3 years.
Those are already accepted time frames for the validity of visas. 180
days is the length of a tourist visa. H-1B visas are valid for 3 years.
This legislation limits parents to an annual stay of 30 days. It does
not specify any long-term validity. This is far too short a time
allotment, I think most would agree, particularly for parents who come
for health reasons or to help their children during and after
childbirth.
Lastly, this amendment would make penalties for parent visa overstays
applicable only to them. Under the legislation before us, if the
overstay rate among visa holders exceeds 7 percent for 2 years, all
nationals of countries with high overstay rates can be barred from this
program or the program can be terminated. Sponsors of overstays are
also barred from sponsoring other aliens on this visa. This amendment
strikes that language that unfairly collectively punishes those who
have not violated the law, allowing law-abiding parents to continue to
unite with their children.
The amendment is comprehensive and touches on all three points of
family reunification: parents with their children, grandparents with
their grandchildren. Again, it hardly needs a lengthy explanation of
the value. I regret deeply that my children don't have the benefit of
their grandparents. They passed away too many years ago. How many times
on a daily basis I think of what a value it would be to my children to
know their grandparents, not to mention what it would have meant to my
wife when she gave birth to be able to have her mother around during
that period of time or the weeks thereafter to have her come and spend
a couple of months. To be with the family as they are getting on their
feet, I don't know of a single American who doesn't understand this
basic concept.
At the appropriate time, I will offer this amendment. I am pleased my
lead cosponsor on this amendment is my colleague and friend from New
Jersey. I thank him for his support. He told me the story of his
family. I think maybe more than anything else I heard over the last
several weeks, thinking about what it would have meant for his family
coming from Cuba and not being able to come here moved me to the point
where I thought this was something we ought to offer on this
legislation.
At the appropriate time I will offer the amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Madam President, I thank and applaud the distinguished
Senator from Connecticut for soon offering this amendment. I am proud
to join him in this effort. I want to build upon a couple of things he
said as to why this amendment should be accepted, not voted but
accepted.
First, I have listened to a new definition of what a nuclear family
is. It is amazing. I have heard so many speeches over my 15 years in
the Congress about family. All of a sudden, the nuclear family doesn't
involve mothers and fathers. All of a sudden it doesn't involve
children, just because they happen to be over the age of 21. All of a
sudden brothers and sisters are not part of a nuclear family.
What is a nuclear family? Certainly as people travel throughout the
country making speeches about nuclear families--about families period--
they certainly mean their parents, people who gave life to them;
certainly they mean their children, individuals to whom they gave life;
certainly, they

[[Page S6535]]

mean their brothers and sisters. I have been amazed at some of the
comments I have heard on the floor of the Senate about what is not
nuclear family.
What else is this about? This is about the right of a U.S. citizen to
apply for their mother and father. That is what the amendment of the
Senator from Connecticut is all about, the right of a U.S. citizen
already to apply. Do everything right. Pay your taxes, serve your
community, serve your country, you want to have a right, which you have
under the law today, to simply bring your father and mother, or either
one depending if they are not both alive, the opportunity to be
reunited with you, a nuclear family, be reunited with you because you
need them, be reunited, as the Senator from Connecticut says, because
you have a child and now there is the opportunity to have the love and
care a grandparent can offer, to create a sense of family, which is the
essence of stability in our communities. Of any faith, it is the very
core.

What we see in the underlying bill is an elimination for the most
part, a significant right of U.S. citizens dramatically reduced. The
Senator's amendment actually will allow not for everybody. It still
will have a certain degree of limitation because last year we gave
120,000 visas to parents. The Senator--which I think is reasonable--has
looked at the historic average, and this says this is the amount that
at least generally has taken place in family reunification of a U.S.
citizen claiming their parents.
When I hear chain migration, how dehumanizing. Chain migration, it
makes me think of a bunch of paper clips hanging together. Chain
migration, is that what we have come to? Parents are part of a little
chain? There is this concern that they will be able to claim someone
else. Who can they claim if they are being claimed by their son or
daughter? That's it. You can't claim anybody else. Chain migration. How
easy it is to try to take something that has so much significance in
our lives and dehumanize it. Chain migration? No, this is about family
reunification. It is the core of what our society is all about. It is
what we hear speeches about all the time in terms of strengthening
families. Families will be strengthened when they are together, not
torn apart.
In the universe of visas, this is very small, but it has a big
consequence. Therefore, I salute the Senator from Connecticut for
offering the amendment. I am proud to join with him when he offers it
at the appropriate time. I hope we are not going to now say that
parents are not part of the nuclear family.
I yield the floor.
Mr. DODD. 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. COLEMAN. Madam 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. 1158 to Amendment No. 1150

Mr. COLEMAN. Madam President, I ask unanimous consent that the
pending amendment be set aside, and I call up amendment No. 1158.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The bill clerk read as follows:

The Senator from Minnesota [Mr. Coleman], for himself and
Mr. Bond, proposes an amendment numbered 1158 to amendment
No. 1150.

Mr. COLEMAN. 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 amend the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 to facilitate information sharing between
Federal and local law enforcement officials related to an individual's
immigration status)

At the appropriate place, insert the following:

SEC. __. INFORMATION SHARING BETWEEN FEDERAL AND LOCAL LAW
ENFORCEMENT OFFICERS.

Subsection (b) of section 642 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1373) is amended by adding at the end the following new
paragraph:
``(4) Acquiring such information, if the person seeking
such information has probable cause to believe that the
individual is not lawfully present in the United States.''.

Mr. COLEMAN. Madam President, following the attacks of 9/11, we made
a promise to the American people to make this country safer. We
identified on all levels cracks in our system. Most alarming, we found
that intelligence agencies were not talking to one another. We found
that when the left arm doesn't know what the right arm is doing, the
consequences can be disastrous. The gathering of intelligence is not an
abstract concept that only happens on the streets of Afghanistan or
Iraq. It happens every day on the streets of Duluth or St. Paul, MN.
Our local law enforcement agencies are on the front lines of our
communities and often know exactly what is happening on our streets.
Sadly, in what is reminiscent of pre-9/11 days, municipalities have
identified a loophole in the law--or in many ways I don't even call it
a loophole, they have simply circumvented Federal law and have banned
the practice of officers inquiring about a suspect's immigration
status, allowing cities throughout the country to become what are
called sanctuaries for illegal immigrants.
My amendment seeks to end the practice of sanctuary cities. These are
cities that seek to evade their obligations under section 642 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
That law expressly prohibits any Federal, State, or local government
entity from preventing a law enforcement officer from sharing
information with the Federal Government regarding the immigration
status of a person with whom they come in contact.
The law is very clear. Section 642, subsection (b) states:

no person or agency may prohibit, or in any way restrict--

In any way restrict--

a Federal, State, or local government entity from doing any
of the following with respect to information regarding the
immigration status, lawful or unlawful, of any individual:

It goes on to say, you cannot restrict ``sending such information to,
or requesting or receiving such information from, the Immigration and
Naturalization Service.'' You cannot restrict, in any way,
``maintaining such information.'' You cannot, in any way, restrict
``exchanging such information with any other Federal, State, or local
government entity.''
So that is what the law states.
Several cities have passed ordinances or issued executive orders
forbidding local law enforcement from even asking the question as to
whether a person is in the United States lawfully, and thereby evading
their legal responsibility to report their suspicions to the Federal
Government.
In other cases, police department policies forbid or severely
restrict their officers from asking a person about immigration status.
Essentially, the philosophy is ``don't ask, don't tell''--don't ask
suspects about their immigration status, so then you don't have to
follow the dictates of the Federal law. These cities have decided the
rule of law does not apply to them.
Scores of law enforcement officers have chafed at the gag order. I
had a meeting last week with law enforcement officers from Minnesota in
my office, and they mentioned this. They mentioned the frustration they
have with what they think is their responsibility to report if they
think somebody is not here legally, that--who knows?--this person could
be somebody who had been deported before, and that is a felony. They
are absolutely prohibited from even asking the question or having the
conversation.
Many say they routinely come in contact with dangerous persons they
know have been deported already--they know it--yet their local
sanctuary policy is to prevent them from being able to do anything
about it.
Supporters say sanctuary policies are intended to be humanitarian
because they allow illegal immigrants to cooperate with the police
without fear of deportation. But the consequences of these policies are
anything but for the law-abiding members of these communities: in some
cases, dangerous criminal aliens remaining on the streets, muzzled law
enforcement officers, and scarce local resources being wasted on

[[Page S6536]]

noncitizens who should be turned over to the Federal authorities.
Opening the channels of communication between local and Federal law
enforcement will help prevent crimes against other members of the
communities. Consider some recent examples.
Two young women who were killed in an accident near Virginia Beach
earlier this year were struck by a drunk driver who had three previous
alcohol-related convictions and an identity theft conviction, but
because he had never been sent to prison, there had never been an
examination of his immigration status. Reportedly, many area police
officers knew the individual was in the United States illegally. Yet
they never reported it to Federal immigration authorities.
In April 2005, a Denver police officer was shot and killed by an
illegal immigrant who had been stopped three times for traffic
violations and even appeared in court just 3 weeks before committing
the murder. Strict rules in the police manual deterred officers from
inquiring about his immigration status, so Federal immigration
authorities were never notified.
In June 2003, a 9-year-old girl was kidnapped in San Jose, CA, by an
illegal immigrant who had been arrested previously for auto theft.
Because the San Jose Police Department's policy manual forbids officers
from initiating police action intended to determine a person's
immigration status, Federal authorities were never contacted.
In December 2002, a 42-year-old mother of two was raped in Queens by
a group of men. Four of them were illegal immigrants, and three had
previously been arrested for such crimes as assault, attempted robbery
in the second degree, criminal trespass, illegal gun possession, and
drug offenses, but were later released.
In May 2002, three women in Houston, TX, were raped and murdered by
Walter Alexander Sorto, an illegal immigrant who had been ticketed
several times for traffic violations.
This is not to suggest all aliens are violent criminals or that all
violent criminals are illegal aliens. We caught Al Capone on tax
evasion. We can protect our communities by allowing police officers to
find out whether a person has broken our immigration laws.
Sanctuary city policies do not just leave their own citizens at risk.
Mohammed Atta, the leader of the 9-11 hijackers, was stopped and
ticketed for driving without a license in Broward County, FL, in early
2001. His visa was expired. Under these policies, no one would ever
know that.
Just this month, we saw a terror plot unfold in Fort Dix that might
have been prevented sooner had the local officials, who pulled the
suspects over on numerous traffic violations, inquired about their
immigration status. Make no mistake, this is a national security issue.
To address this problem, I am offering a simple amendment to make it
clear a police officer has the right to ask immigration-related
questions of a suspect, and to report his or her suspicions to Federal
authorities. My amendment restores the original intent of the 1996 law,
which I read before, by stating that Federal, State, and local
governments may not prohibit law enforcement from acquiring information
about immigration status where there is probable cause. That is what
the 1996 law says, and yet cities have been able to circumvent this.
Let us, then, go back to the original intent of that law.
My amendment does not require local law enforcement to use their
scarce resources enforcing immigration laws. It does not enable local
law enforcement to conduct immigration raids or act as Federal agents,
or even determine a person's immigration status. Instead, my amendment
simply gives law enforcement officers the ability to pursue a person's
immigration status as part of their routine work, and thus to report
any suspicions to the appropriate Federal authorities through already
established channels, such as through the Law Enforcement Support
Center at ICE, or ICE's Criminal Alien Program.
In essence, sanctuary cities are thumbing their noses at Federal law.
The Justice Department has concluded that States have the inherent
sovereign right to make arrests for both criminal and civil immigration
violations. Section 642 of the 1996 immigration reform bill expressly
states local law enforcement officers must communicate with Federal
authorities. Yet their leadership or their local government or their
city council is actually preventing them from doing so. In this day and
age, we cannot allow for such law enforcement-free zones.
Finally, and perhaps most importantly, the bill before us today takes
away the strongest argument that sanctuary city supporters have;
namely, that illegal immigrants will be so frightened about being
deported that they will never go to the police.
As currently written, this bill will give a legal status to these
aliens. Any alien participating in the program should not fear an
encounter with a police officer. The only aliens who would fear contact
with the police are those who have committed some crime.
Sanctuary cities take away the ability of a police officer to use his
or her own judgment in the course of their routine police work to
inquire about a person's immigration status and share their concerns
with the Federal Government for followup action.
The reality is law enforcement officers ask a wide range of questions
of suspects every day that touch upon many aspects of the person's
behavior. But in sanctuary cities, they cannot ask about immigration.
The artificial wall relative to immigration status is illogical--and I
would suggest perhaps even unconstitutional--and in this day and age
harmful to our national security. We ought to give this tool back to
our local law enforcement.
Finally, one other point. One of the challenges we have with the bill
before us--by the way, a bill where I would like to see us deal with
the immigration issue. The system is broken. It needs to be changed.
Clearly, we know that. We all know that.
We have had a group of Senators on both sides of the aisle, from a
broad political spectrum, come together to try to find some common
ground, to try to deal with the issue of strengthened border security,
which we must deal with--to do those things--to ensure greater employer
responsibility, and then to figure out some way to deal with the 11
million who are here, to know who they are, have them learning English,
have them pay taxes, and not to provide amnesty but to provide fines
and a series of sanctions and a path before one can even consider
proceeding to something like citizenship.
But one of the problems we are having--I am having it now. I have
gotten thousands of calls on this issue, most against this bill, even
though people have not even read the bill yet. I think it is, in part,
because folks do not trust us, do not trust the Federal Government to
do what we say we are going to do. They do not trust us to absolutely
uphold the rule of law. They do not believe when we say we are going to
secure our borders that we are actually going to do it.
In many ways, this issue I raise today is a rule of law issue. If we
tell people across America that in sanctuary cities the rule of law
does not apply when it comes to immigration, how are we going to get
the American public to believe we are serious about border security--
when we then try to figure out a way to do a guest worker program, to
deal with the 11 million who should come out of the shadows into the
sunlight?
I suggest by supporting this amendment what you are doing is
supporting respect for the rule of law. We need to do more of that to
gain the trust and the confidence of the American people.
I urge my colleagues to support this amendment.
Mr. President, with that I yield the floor.
The PRESIDING OFFICER (Mr. Casey). The majority leader is recognized.

Unanimous-Consent Request

Mr. REID. Mr. President, I ask unanimous consent that the Senate
proceed to the consideration of a resolution honoring the life of
Rachel Carson, a scientist, writer, and pioneer in the environmental
movement, on the occasion of the centennial of her birth, which was
introduced early today by Senators Cardin, Specter, and others; that
the resolution be agreed to, the preamble be agreed to, the motion to
reconsider be laid upon the table, and that any statements thereon be
printed in the Record.
Mr. COLEMAN. Mr. President, I object on behalf of another Senator,
another Republican.

[[Page S6537]]

The PRESIDING OFFICER. Objection is heard.
Mr. REID. Mr. President, I appreciate the obligation my friend from
Minnesota has. But I am going to continue offering this unanimous
consent request. To think that we would not honor Rachel Carson on the
anniversary of her 100th birthday--a woman who did as much for the
environmental movement in this country as any human being who has ever
existed.
Somebody has objected to this? I have heard the reason for the
objection is she relied on flawed science to come to her conclusions. I
do not know anything about flawed science, but I do know this woman
turned the minds of young people to the environment, turned the minds
of the academic world to the environment. As a result of her work--as a
result of her work--we became conscious of our need to make sure we do
things to protect the environment.
So, Mr. President, I am going to continue to move on this. I will
tell you, I feel strongly about this, as do Senators--both Democrats
and Republicans--that we will have a couple more objections, and then I
am going to have a vote to invoke cloture on a motion to proceed to
this piece of legislation.
I think it is too bad, first, that the person who objected to this
would not have the--I should not say courage, but that person who
objects to this should come and do it on their own behalf, not have
some other Senator object.
Rachel Carson was a scientist, a writer, and a pioneer in the
environmental movement to make this world a better place. This is a
simple resolution. It does not cost a penny. All it does is give
recognition to someone who certainly deserves that. So I am terribly
disappointed that there is an objection to this, but we will do it
again at another time.

Yucca Mountain

Mr. President, for 25 years, there has been an effort made to do
something that is degrading to the environment and that would
jeopardize the health and safety of millions of Americans. It is a
project to bury nuclear waste in the deserts of Nevada.
Originally, when this project started, there was a program that would
have had three sites that would be selected for places to characterize;
that is, to prepare them for the taking of nuclear waste. One was in
Washington, one was in Nevada, and one was in Texas. There was a time
that came in the 1980s where, because of political maneuvering,
Washington and Texas were eliminated, and they thought because Nevada
was a place that set off atomic bombs and did other things, it was a
big desert wasteland and it didn't matter. But it has mattered. The DOE
has done a terribly bad job. They have botched what has taken place out
there. The scientific community basically recognizes now it is a very
bad idea to try to bury nuclear waste in Nevada.

One reason for that is not only is the science bad, but since 9/11,
think of trying to haul 70,000 tons of the most dangerous substance
known to man across our highways, our railways, past schools, homes,
and businesses. This would be a field day for terrorists. Seventy
thousand tons of the most dangerous substance known to man--plutonium--
hauled from more than 100 nuclear generating facilities across this
country, some more than 3,000 miles to Nevada. It hasn't happened and
it will never happen. It will never happen.
So I rise today because some of my colleagues have introduced
legislation to salvage this dying project, a project that threatens the
health and safety of Americans everywhere. The proposed Yucca Mountain
nuclear waste dump is not a solution for our nuclear waste problems.
The science behind Yucca is corrupted with politics, and it doesn't
take into consideration the problem with the transportation of this
poison.
The administration and the sponsors of this bill know that Yucca is a
flawed and dangerous project and that it cannot move forward without
passing legislation designed to circumvent existing laws. Many of the
laws are environmental laws. If Yucca was truly scientifically sound
and safe, this administration would not need to gut laws that protect
our environment, public health, transportation, and security. This
legislation exempts the Department of Energy from longstanding Federal
laws designed to make Americans safer. This is unacceptable to the
Senate. It is unacceptable to our country. It is unacceptable to the
Senate.
Senator Ensign and I have worked together on this project for many
years. That is why we introduced the Federal Accountability for Nuclear
Waste Storage Act earlier this year. Under our proposal, the Department
of Energy will take ownership of nuclear waste and store it safely at
nuclear power plants where it is produced, as is happening as we speak.
Calvert Hills, a short distance from here, is a nuclear generating
facility, and they store nuclear waste as Senator Ensign and I say they
should store it.
So I challenge all my colleagues who have concerns about this to sit
down with Senator Ensign or with me or with both of us, as many have
already done, to begin discussing a scientifically sound solution to
our nuclear waste problems. Let's take the focus away from this dead-
end project and find real solutions for our energy future.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I see my friend and colleague from Hawaii
who has an amendment which I hope we will be able to consider and
accept. I have talked briefly to the Senator from Arizona and others. I
ask unanimous consent that the Senator's amendment be in order.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Hawaii is recognized.

Amendment No. 1186 to Amendment No. 1150

Mr. AKAKA. Mr. President, I ask unanimous consent that the pending
amendment be set aside, and I send my amendment to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The bill clerk read as follows:

The Senator from Hawaii [Mr. Akaka], for himself, Mr. Reid,
Mr. Durbin, Mr. Inouye, Mrs. Boxer, Mrs. Murray, and Ms.
Cantwell, proposes an amendment numbered 1186 to amendment
No. 1150.

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

amendment no. 1186

(Purpose: To exempt children of certain Filipino World War II veterans
from the numerical limitations on immigrant visas)

At the appropriate place, insert the following:

SEC. __. EXEMPTION FROM IMMIGRANT VISA LIMIT.

Section 201(b)(1) (8 U.S.C. 1151(b)(1)) is amended by
inserting after subparagraph (G), as added by section 503 of
this Act, the following:
``(H) Aliens who are eligible for a visa under paragraph
(1) or (3) of section 203(a) and who have a parent who was
naturalized pursuant to section 405 of the Immigration Act of
1990 (8 U.S.C. 1440 note).''.

Mr. AKAKA. Mr. President, my amendment seeks to address and resolve
an immigration issue that, while rooted in a set of historical
circumstances more than seven decades old, remains unresolved to this
day. I am happy to say I am joined by Senator Reid, Senator Durbin,
Senator Inouye, Senator Boxer, Senator Murray, and Senator Cantwell. It
is an issue of great concern to all American veterans and citizens with
an interest in justice and fairness.
In 1941, on the basis of 1934 legislation enacted prior to Philippine
independence, President Franklin D. Roosevelt issued an Executive order
through which the President invoked his authority to:

Call and order into the service of the Armed Forces of the
United States all of the organized military forces of the
Government of the Commonwealth of the Philippines.

This order drafted more than 200,000 Filipino citizens into the U.S.
military, and under the command of General Douglas MacArthur, Filipino
soldiers fought alongside American soldiers in the defense of our
country.
The enactment of the First Supplemental Surplus Appropriations
Rescission Act of 1946 included a rider that conditioned an
appropriation of $200 million on a provision that deemed that service
in the Commonwealth Army should not be considered service in the Armed
Forces of the United States. The individuals impacted were those
members of the organized military forces of the Commonwealth of

[[Page S6538]]

the Philippines called into the service of the U.S. Armed Forces in the
Far East by President Roosevelt's 1941 Executive order.
The enactment of the Second Supplemental Surplus Appropriations
Rescissions Act included language that deemed that service in the New
Philippines Scouts had not been service in the U.S. military. The
individuals impacted were those Filipinos who had served with the U.S.
Armed Forces from October 6, 1945 to June 30, 1947.
Of the 200,000 Filipinos who served in the U.S. Armed Forces during
World War II, either as members of the Commonwealth's Army or New
Philippines Scouts, only 20,000 survive today--13,000 in the
Philippines and 7,000 in the United States.
In 1990, the World War II service of Filipino veterans was finally
recognized by the U.S. Government through the enactment of the
Immigration Act of 1990, which offered Filipino veterans the
opportunity to obtain U.S. citizenship. There are currently 7,000
naturalized Filipino World War II veterans residing in the United
States. The opportunity to obtain U.S. citizenship was not extended to
the veterans' sons and daughters, approximately 20,000 of whom have
been waiting for their visas for years.
While the Border Security and Immigration Reform Act of 2007 raises
the worldwide ceiling for family-based visas to 567,000 per year until
the backlog in the family preference visa categories is eliminated, the
fact remains that many of the naturalized Filipino World War II
veterans residing in the United States are in their eighties and
nineties. My amendment stresses the need to expedite the issuance of
visas to these veterans' children.
Mr. President, I yield back the remainder of my time.
Mr. KENNEDY. Mr. President, I thank the Senator from Hawaii for
offering this amendment. He offered this amendment in the last
immigration bill. We accepted it at that time. I am confident that will
be the case on this time, but given the hour of the evening, we are
unable to get this cleared.
Basically, as he has expressed so well, he is talking about the
immediate family members of those who served with American forces in
World War II. Under the broad scope of the underlying legislation, they
would be included to be able to come to the United States. Under the
bill, it would take an 8-year period. What the Senator from Hawaii is
saying is these are older men and women who would otherwise be able to
come here. They are the brothers and sisters of those who fought with
American forces in World War II, and we want to move them up and have
them come more quickly, given the fact of their age. It is a very
decent thing to do. We would be entitled to do it under the underlying
framework of the bill. It doesn't change the underlying framework of
the bill.
It is a humanitarian gesture. It is a noble gesture. It is typical of
the Senator from Hawaii to be thoughtful about this, always being
concerned not only about individuals but members of the Armed Forces.
He continues to be a champion on the Veterans' Committee. I speak for
the veterans of my State as well as in this case the veterans of World
War II for their immediate family, and I am very hopeful we can get
this cleared at an early time tomorrow. I wish to commend him for this
amendment. He had indicated to us early on that this was a matter of
high importance to him, and it is, I think, and should be a high
priority here.
So we would ask the Senator if we may move along, and I will try to
get the clearance for that amendment on tomorrow, and we will notify
him when that happens. We thank him again for bringing this to the
attention of the Senate and for being thoughtful about these
extraordinary family members of those who served so nobly,
courageously, and heroically in World War II. So I thank the Senator.
He can be assured of my support and help and assistance and hopefully
we will have good news for him tomorrow on this amendment.
Mr. President, I think we have probably reached about as far as we
are going to go this evening. We are examining in some detail Senator
Coleman's amendment, and we would like to try and see if we can't work
that out through the evening. There is one aspect of it I would like to
understand more completely in terms of whether it deals with emergency
services and others. So I think we probably, for all intents and
purposes, have gone about as far as we can go tonight.
We have a number of amendments. We are very much aware that we have
the supplemental that will be here. We have been told so by the
majority leader. But we will have a good opportunity in the morning
through noontime and into perhaps the early afternoon to continue our
progress. We have made good progress today. I thank all the Members for
their cooperation. We have several amendments which are lined up. We
will probably start with Senator Dorgan's amendment tomorrow. We have a
number of amendments, including Senator Cornyn's amendment which he
offered this evening, and there will probably be side-by-side
consideration sometime in the late morning. There are a number of other
amendments that have been brought to our attention. We are in the
process of prioritizing those and notifying their sponsors to make sure
they can be here in a timely way so we will have a productive time and
as few quorum calls as possible.
As I mentioned, we will continue on the Cornyn amendment and the
Dorgan amendment. There is a Feingold amendment on the study of
refugees; a Sanders amendment, scholarship for Americans in connection
with the H-1B program. There are some of the family amendments which
Members have talked with us about and the McCain amendment as well. So
we have talked to most of these Members, and we will do as much as we
possibly can to move these along.
They are all important matters. I think, as far as today is
concerned, we are very grateful for the cooperation we have had from
all Members. I think we have made some important progress. We look
forward to making further progress in the morning.
I see my colleague here who would like to address the Senate on other
matters. We look forward to further consideration of the underlying
legislation tomorrow.
Mr. DODD. Mr. President, I regret that I could not join last night's
debate on amendments to the comprehensive immigration reform bill. Had
I been present, I would have supported the amendment offered by
Senators Dorgan and Boxer, which was designed to eliminate the bill's
guest worker provision. Though it was not adopted, I salute its
principles and hope that they will find their way, once again, into our
national debate on immigration.
The immigration bill was set to allow 400,000 foreign guest workers
into America each year, eligible for two-year stays, alternating with a
year in their home countries. In their eloquent remarks last evening,
Senators Dorgan and Boxer rightly identified this provision's
shortcomings.
First, as Senator Boxer observed, ``We are setting up a system of
exploitation.'' I am concerned that the immigration bill offers
insufficient protection to guest workers, leaving them open to
victimization by low wages, long hours, and dangerous conditions. It
threatens to import into America a permanent underclass, rootless in
our communities and ignorant of our language, valued for nothing more
than its muscle power. A labor system like that is suited to an empire,
not to a republic of opportunity and not to the principles of
immigration we have long honored in America.
No one denies that much of America's economy depends on immigrant
labor. But if we want to do more than exploit that labor--if we want to
sew it into our social contract, if we want to treat immigrants with
justice and dignity--a path to citizenship is a necessity. That brings
me to the guest worker provision's second shortcoming: It lacks such a
path. If we are willing to offer the opportunity of citizenship even to
those who entered our country illegally, it is inconsistent to deny it
to those who come with our sanction.
Third and finally, the guest worker provision harms American workers.
Threatened by outsourcing and globalization, their expenses for
healthcare and education skyrocketing even as their incomes fail to
keep pace, American workers now face 400,000 competitors, each year, in
their own country, willing and able to do their jobs for lower wages.
Last night, Senator Dorgan told us a moving story of

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furniture-makers in Pennsylvania whose jobs were eliminated and shipped
to China. As their plant shut down, each one of those craftsmen signed
the bottom of the last piece of furniture their company would make in
America. As we import wage pressures onto our own shores, we will be
hearing hundreds of similar stories in the years to come. The guest
worker provision threatens to eat away at our middle class.
It has the potential to harm guest workers and American workers
alike. Who, then, does it benefit? I don't think I need to tell my
colleagues the answer. But unless we reform our standards for guest
workers, we will be putting the demand for cheap labor above the
dignity of immigrants and Americans alike.
I voted to strip the guest worker provision from last year's
immigration bill; and I supported stripping it this year. And while the
amendment offered by Senators Dorgan and Boxer did not pass, I am
heartened that we adopted Senator Bingaman's amendment to limit the
program to 200,000 guest workers per year. And as we move forward in
this debate, I hope that we will also have chance to strengthen
protections for guest workers and reduce wage pressure on Americans.

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