[Congressional Record Volume 156, Number 115 (Monday, August 2, 2010)]
[Senate]
[Pages S6559-S6561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           IMMIGRATION REFORM

  Mr. KYL. Mr. President, I would like to speak for a few moments about 
a memorandum that was received in the offices of Senator Charles 
Grassley, pursuant to a request of the Department of Homeland Security, 
which has, unfortunately, raised a lot of questions about the 
administration's commitment to enforcing congressional law. It is 
undated, but the memorandum is 11 pages. It is on the stationery of 
U.S. Citizenship and Immigration Services. It is a memorandum to 
Alejandro N. Mayorkas, the Director, from four individuals within the 
USCIS. The subject matter is described as ``Administrative Alternatives 
to Comprehensive Immigration Reform.''
  After reading these 11 pages, I have to ask the question whether this 
administration, frustrated by the fact

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that Congress has not acted to pass comprehensive immigration reform, 
is now considering an end-around the Congress by administrative action 
through reinterpretations, definitions, rules, and regulations, 
changing guidelines and the like--in other words, administrative 
actions to accomplish what cannot be accomplished because Congress is 
in no mood right now to adopt comprehensive immigration reform--in 
effect, to use the phrase in the memorandum, a ``nonlegislative version 
of amnesty.''
  I hope this memorandum, which is designated a ``draft,'' will be 
thoroughly explained by the administration and will be disavowed in 
terms of an intention to do an end run around Congress. I am hopeful 
that some hearings can be held so the authors of the memorandum, or the 
Director, can explain why this memorandum would be written in the first 
place and what they intend to do about it.

  The purpose of the memorandum is described as follows:

       This memorandum offers administrative relief options--

  To, among other things--

       reduce the threat of removal for certain individuals 
     present in the United States without authorization.

  In other words, illegal aliens.
  The summary of the memo reads:

       In the absence of comprehensive Immigration Reform, USCIS 
     can extend benefits and/or protections to many individuals 
     and groups by issuing new guidance and regulations, 
     exercising discretion with regard to parole-in-place, 
     deferred action and the issuance of Notices to Appear and 
     adopting significant process improvements.

  Then they go on to summarize a variety of changes by which they can 
accomplish these purposes. Just to quote a few here: ``USCIS could 
reinterpret two 1990 General Counsel Opinions. . . .'' They could 
change the definition of ``dual intent.'' They could modify removal 
procedures in the public interest--strategically, they note. They could 
``issue guidance or a regulation lessening the `extreme hardship' 
standard.''
  I quote from the ``Options'' part of the memo:

       The following options--used alone or in combination--have 
     the potential to result in meaningful immigration reform 
     absent legislative action.

  Indeed, they do. This would be a way for the bureaucrats within the 
administration to change Congress's intent by redefining terms, issuing 
guidelines, rules and regulations, and practices which would result in 
the same thing they would like to achieve in the form of comprehensive 
immigration reform, including, among other things, amnesty for illegal 
immigrants. But they could do all of this without Congress ever having 
passed a single law.
  Just to go through some of the other things they talk about here, 
they could allow certain TPS applicants who entered without 
inspection--that means they entered the country illegally--to adjust 
their status. They could expand the meaning of ``urgent humanitarian 
reasons.'' One of the things they could--and I will quote it here:

       To address these issues, OP&S is currently examining the 
     feasibility of policy options so that individuals would not 
     be deemed to have triggered the bar upon departure with prior 
     authorization from DHS. These options include possibilities 
     reexamining past interpretation of terms such as `departure,' 
     and `seeking admission again.' ''

  I know these are terms we can find in the dictionary, but these 
creative bureaucrats are in effect saying: We can define these terms in 
a more creative way and therefore allow a lot more illegal immigrants 
to stay in the country indefinitely.
  They say:

       To increase the number of individuals applying for waivers 
     and improve their chances of receiving them, CIS could issue 
     guidance or regulation specifying a lower evidentiary 
     standard for extreme hardship.

  If you don't like the law, you simply lower the bar. We could do 
that, they say, and allow more people to stay here.
  They do note a couple of problems in doing these things. On page 10, 
they say:

       While it's theoretically possible to grant deferred action 
     to an unrestricted number of unlawfully present individuals, 
     doing so would likely be controversial, not to mention 
     expensive.

  Well, they are right about that; it would be controversial indeed. 
One of the reasons they note is in the final page of the memorandum, 
when they say--and I am quoting again:

       Rather than making deferred action widely available to 
     hundreds of thousands and as a nonlegislative version of 
     amnesty, USCIS could tailor the use of this discretionary 
     option for particular groups such as individuals who would be 
     eligible for relief under the Dream Act, an estimated 50,000; 
     or under section 249 of the act, registry, who have resided 
     in the U.S. since 1996; or, as of a different date, designed 
     to move forward the registry provision now limited to entries 
     before January 1, 1972.

  In other words, pick a date and say that everyone after that date can 
stay in the United States legally even though they gained entry 
illegally.
  Mr. President, this is highly disturbing. Because what you have is 
the administration explaining that well, A, this is only a draft; and, 
B, we have not adopted any of these recommendations yet; and, C, we 
probably would not do it for everyone who is here illegally.
  Well, I would hope not, but I would hope the administration would be 
a little more forthcoming about its intentions. This is what fosters 
suspicion among the American people that the administration is not 
serious about enforcing our laws and that they want to try to 
accomplish an end run around the Congress by administrative fiat.
  It is the kind of situation that fosters a lack of confidence in the 
transparency of this administration, which was supposed to be the most 
transparent in history, when we have to find out only through a process 
of a member of the Judiciary Committee literally forcing them to cough 
up this memo of what they are thinking about.
  It is obvious from the language of the memo that a great deal of 
thought has been put into this, and it has gone throughout the 
Department of Homeland Security, when they talk about different groups 
having studied different options. This is the kind of thing that causes 
people to wonder about the administration's commitment to enforcing the 
law.
  Finally, it is one of those things which ironically--or 
paradoxically--has caused people to back away from the notion of 
comprehensive immigration reform, because of the notion that the 
administration has been less than anxious to secure the border and 
enforce the law and, as was told to me on one occasion, the theory 
being that if we ever secure the border, then there will be less 
impetus to pass comprehensive immigration reform.
  If your goal is comprehensive immigration reform and amnesty or you 
call it whatever term you want to there, letting people stay in this 
country who came here illegally, if that is your goal, and it does not 
appear the Congress is going to act on that anytime soon, then you 
resort to the tactics that are employed here by these employees at DHS. 
Let's figure out ways by reinterpreting commonly used phrases, by 
issuing new guidelines, by changing 1990 legal opinions, by other means 
that can be accomplished administratively, we will accomplish, in their 
words, a nonlegislative version of amnesty for at least specific groups 
of people, depending upon what date you want to use or what specific 
phraseology you want to use. This is why the American people do not 
trust Washington in general and why they have grave reservations about 
this administration's commitment to enforcing the law relating to 
illegal immigration.
  A final point I would like to make is the decision that was rendered 
by the Federal district judge in Arizona on the now infamous Arizona 
law. I was troubled by one of the aspects of it because it reflected an 
argument the U.S. lawyers presented in court, which, in effect, was 
Arizona has no business trying to help the Federal Government enforce 
our immigration laws, among other reasons, because the Federal 
Government has decided--bear in mind, this is the executive branch of 
the Federal Government, not Congress, but this administration has 
decided to enforce the law selectively; that is to say, using its 
discretion; that is to say, not always enforcing it.
  What would be some of the reasons you would not enforce it? Well, one 
of the main arguments they used--and the judge referred to this--is 
that we have to keep in mind the sensitivities of other governments--
what do they think about our enforcement of our law; that there are 
legitimate foreign policy reasons why the administration might not want 
to enforce a congressionally enacted statute.

[[Page S6561]]

  I find this to be remarkable. Of course, in dealings with foreign 
nations, every State Department, every President has to be careful to 
try to win friends and influence people. But I do not think that you 
make a deliberate decision not to enforce a law that Congress has 
passed, which the American people clearly want enforced, simply because 
people in the Government of Mexico are unhappy if the law is enforced. 
That is obviously the country we are talking about because the Mexican 
Government itself intervened in the litigation to make exactly that 
point.
  So, again, is it any wonder the American people wonder about this 
administration's commitment to enforcing the law, when one of the key 
arguments it raises in the litigation is that we do not want to have to 
be under a standard of complete enforcement of the law because we have 
some other considerations we need to take into account.
  The judge says: I will agree with that and therefore say that the 
State of Arizona cannot insist on complete enforcement of the law 
because the Federal Government may have reasons not to totally enforce 
it. That is a troubling proposition to me, among other things, because 
Congress has not interpreted the law in any way other than we wrote it; 
namely, enforce it.
  That brings up the final point. Congress passed, as part of our 
immigration laws, a requirement that the Department of Homeland 
Security respond to inquiries by Federal, State, and local officials 
who call in about the status of individuals whom they have stopped, for 
example, at a traffic stop or who they may have reason to believe are 
in the country illegally, and they respond to about 1 million of those 
inquiries a year. They have 152 employees to do it.
  The Federal Government actually argued in the case, believe it or 
not, that the reason Arizona had to butt out and not try to help the 
Federal Government enforce the law was because it would result in a lot 
more inquiries about the legal status of people and they could not 
handle anymore inquiries; their capacity was only 1\1/2\ million a 
year; they are up to 1 million; and they only have 152 people in this 
unit responding to these inquiries, so they could not possibly accept 
this burden.
  As a result, the judge ruled that the U.S. Government would be harmed 
in such a way that she had to grant an injunction. It would be 
irreparably harmed as a result of Arizona enforcing the statue. The 
question, obviously, occurred to me: Well, why do we not hire a few 
more people to answer these inquiries? I calculated it might cost about 
$15 million to double the number of people, and certainly this law is 
not going to double the number of inquiries. But say you doubled the 
number of people to 300 instead of 150. That solves that problem.
  In other words, people in the U.S. Government, under this 
administration, seem to be looking for reasons not to enforce a law. 
That is wrong. We take an oath to uphold the law. When Congress passes 
a law, we intend it to be enforced. Yet you have this administration, 
this Justice Department, making arguments as to why the law cannot or 
should not be completely enforced. Is it any wonder my fellow citizens 
in Arizona and others around the country want someone to do what they 
can to try to enforce the law? If the U.S. Government will not do it, 
then maybe we should start to get our States involved. I agree, it is 
better to have the U.S. Government do it. It should be our obligation.
  But if our own administration is not willing to do it to the letter 
of the law, and if they are willing to abide by employees who spend 
their time writing memos such as this, to show how to get around the 
law, to grant a ``nonlegislative version of amnesty,'' then clearly 
something is wrong, and I think Congress has to speak up.
  If you reward illegality, you are going to get more of it. When this 
administration tries to find ways to keep people in the country who 
came here illegally by virtue of redefinitions and guidelines and 
changing opinions that go back to 1990, it suggests to me we are simply 
inviting more illegality, and we should not do that.
  So I am going to join my colleagues on the Judiciary Committee in 
asking for hearings on this matter, to find out why this is being done; 
hopefully, to confirm that they do not intend to move forward with this 
but, in any event, to try to reestablish with the American people that 
their government in Washington does represent them, it does want to 
carry out their intent expressed in properly enacted legislative laws, 
and that, once and for all, we can make a commitment in this country 
that the American people have been asking for for a long time now that 
when it comes to our immigration laws, the Federal Government is 
committed to enforcing them.
  Until that is done, we are not going to make progress on all the 
other issues relating to immigration reform that so many people have 
asked for. As a result, we would do well to examine this issue 
carefully and then reach the appropriate conclusions. If we need more 
money, if we need more personnel, $15 to $20 million is a drop in the 
bucket of this administration's $3 trillion budget. We can clearly 
afford to hire a few more people to do the job, if that is the 
government's real concern about the immigration laws; otherwise, we 
should have these employees come and explain why they think it is 
within their purview to get around the law, in the absence of 
congressional action.
  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. DORGAN. 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. DORGAN. I ask unanimous consent to speak for 15 minutes as in 
morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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