[Congressional Record Volume 159, Number 81 (Monday, June 10, 2013)]
[Senate]
[Pages S4064-S4067]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMMIGRATION REFORM
Mr. SESSIONS. Mr. President, we are looking at now and considering an
immigration bill. S. 744 is before us. This is a two-volume set
consisting of over 1,000 pages, and unfortunately it doesn't do what
its sponsors say it does. It doesn't provide the security and other
important items we want in an immigration reform bill, and therefore it
cannot be passed in its present form and should not be passed in that
form. It is just that simple.
This is a big, important issue. When we pass immigration reform, we
do not need to be back in the situation that occurred in 1986 when they
passed immigration reform and promised to do enforcement in the future.
We gave the amnesty immediately, and the promises of enforcement never
occurred. This is not a little matter. It has resulted in 11 million
people now being in our country illegally. This is a result directly of
the failure of the 1986 bill to carry out its enforcement promises, a
direct result of Presidents and Congress not insisting that happen.
So there is a general consensus even among the Gang of 8 that
Congress and the President can't be trusted, and we need to have
legislation that somehow mandates that to happen because we have to
have--in their minds--the amnesty first. That is just the way it has to
be, and once that is given, well, we will promise to take care of it in
the future.
I have been discussing the two aspects of immigration that cause us
to have the illegal immigrants. The first part is obvious--it is people
who cross the border illegally. At any number of our borders and ports,
they come in illegally, and that is a big part of our problem--
actually, though, only 60 percent. Forty percent of the problem is the
people coming into our country legally on a visa. The others just come
illegally. They have no right to enter the country; they just enter.
These have a right to enter the country. They come in on a visa and
they just don't go home. They just stay. And history tells them nothing
ever happens. Nobody knows they didn't return home. Nobody clocks them
out when they go home. Nobody knows they are here, and they just stay.
The President of the United States, through the Secretary of Homeland
Security, has directed its ICE agents--Immigration and Customs
Enforcement officers who are all over and around our country, although
small in number, about 5,000--to basically not execute any deportation
proceedings against anybody--almost none. They have to be convicted of
a big felony, a serious crime, and only then do they initiate
deportation.
We also have cities that are failing to support the Federal
Government in any way. When they catch somebody for a crime in their
city and discover they are illegally in the country, they won't notify
the Federal Government they are there so they can come and pick them up
and carry out the deportation that is required. This is the kind of sad
state we are in, and it certainly is a sad state indeed.
So the American people, by a 4-to-1 margin in a poll of just a few
days ago, said: We are prepared to be generous to people who entered
the country illegally and haven't gotten into trouble. We will be
compassionate to them. But we want to see the enforcement occur. By a
4-to-1 margin, that poll showed that the American people said the
enforcement should come first before we grant the legality--before we
give the amnesty. Now, isn't that good common sense?
As I go through the second part of my concern about this process, you
will see the ineffectiveness and unwillingness of the Federal
Government to fulfill its role of ensuring that our sovereignty is
defended through the elimination of illegal immigration. And we can do
that. We can do it, but we are not doing it.
So the first part, dealing with the border, as I mentioned today,
they softened the current law.
Current law is you have to have 100 percent operational control at
the border. Under the standards they utilize there, this bill says 90
percent of border patrol encounters and otherwise reduces the
enforceability and the enforcement standards of making sure our border
is lawful.
I would just say, first and foremost, each one of these matters are
exceedingly complex and must be done properly. As we talked about
earlier, the crafting of legislation necessary to ensure that our
border is lawful requires a lot of work and a lot of different
strategies and capabilities for our men and women who are out there at
risk enforcing that law. That is the fundamental reason we should have
legislation that goes step by step. We should have a piece of
legislation that has been worked on very hard involving Immigration and
Border Patrol officers. That legislation should be brought forth and we
would pass it to fix the border.
Then, the second part, as I am talking about today, the entry-exit
visa situation where people enter the country lawfully according to a
visa but don't return to their home country, that has its own unique
and complex systems that need to be dealt with, and that needs to be
done independently and separately. We need a separate and independent
analysis of how to deal with the workplace to ensure that people who
come into the country illegally don't get jobs in the future. We have
to end this.
So I am taking the bill at its word. They want to give legal status
to everybody who is here. So what do we do to try to ensure this
doesn't happen again in the future? We are not saying go out and try to
find everybody who is in the country illegally and capture and deport
them. That is not a practical solution at this point in our history. We
do need to figure out how to compassionately deal with those
individuals, but we don't need to be where we can't enforce the law in
the future so we have another amnesty upon us,
[[Page S4065]]
another situation with millions of people here illegally because we
failed to do our duty.
The way we do the entry-exit visa has been determined by Congress for
a number of years. It is to use a biometric entry-exit visa system. So
we take fingerprints of everybody who comes to the country. They are
clocked in when they enter the United States, and that fingerprint
identifies them as the person who has the visa. Then, when they leave,
they are supposed to clock out and use their fingerprint--which is the
best biometric proven system. You put maybe just two fingers on the
reader as you go onto the airplane to fly out of the country and it
reads it and sees if you are a terrorist or you are a criminal fleeing
prosecution for a crime you may have committed in the United States. It
is as simple and easy as can be, but for one reason or another this has
been blocked.
The history of the biometric exit system is so instructive for us
because it tells us how the Presidential and congressional authorities
of America have failed to carry out what ought to be a universally
accepted bipartisan plan to make our entry-exit visa system work right
and reduce that 40 percent of illegal immigrants in our country who
come by visa.
In 1996, Congress first adopted a requirement for an entry-exit
system to track those who were entering and leaving the United States
in the Illegal Immigration Reform and Immigrant Responsibility Act. The
first time we passed it was in 1996. In 2000, Congress passed another
law requiring the entry-exit system be electronic and to be implemented
at all air, sea, and land ports of entry. That was 2000, 13 years ago.
Again in 2000, when amending the visa waiver program, Congress
required a ``fully automated entry and exit control system'' to record
entry and departure information for all aliens participating in the
program. Congress also required that passports be machine readable.
After 9/11, a time of national introspection and study, Congress once
again demanded the implementation of an entry-exit system through the
passage of the PATRIOT Act. The intent of Congress was made clear at
that time:
In light of the terrorist attacks perpetrated against the
United States on September 11, 2001, it is the sense of
Congress that the Attorney General, in consultation with the
Secretary of State, should fully implement the integrated
entry and exit data system for airports, seaports, and land
border ports of entry with all deliberate speed as
expeditiously as practical.
Congress demanded that the entry-exit system be biometric and based
on tamper-resistant machine readable documents. A biometric system
requires that an immigration document match the individual presenting
the document. In other words, there is a biometric capability to make
sure the person who presents a document is the person named in the
document. There are a variety of ways to make a document biometric, but
the most common is to use digital fingerprints which can easily be run
through computer data bases to match records on file. This is done
every day.
According to the Department of Homeland Security's own Web site:
Unlike names and dates of birth which can be changed,
biometrics are unique and virtually impossible to forge.
Collecting biometrics helps the U.S. government prevent
people from using fraudulent documents to enter the country
illegally. Collecting biometrics also helps protect your
identity in the event your travel documents are lost or
stolen.
That is on the Web site today of Homeland Security, and it is
absolutely correct.
In 2002, Congress reiterated the demand for a biometric entry-exit
system at all ports of entry, requiring Homeland Security issue aliens
``only machine readable tamper-resistant visas and other travel and
entry documents that use biometric identifiers.''
That was what we passed in 2002. It also required that the government
install biometric readers and scanners ``at all ports of entry in the
United States.''
Also, in 2002, the Department of Homeland Security initiated the US-
VISIT system, which has great potential, and it has done some good
things, but it hasn't been completed. That system was to develop this
entire process. Two years later, US-VISIT was collecting biometric data
on all aliens entering the United States. In 2004, Congress again
demanded a biometric entry-exit system through the passage of the
Intelligence Reform and Terrorism Prevention Act of 2004. In that act,
Congress said:
Congress finds that completing a biometric entry and exit
data system as expeditiously as possible is an essential
investment in the effort to protect the United States by
preventing the entry of terrorists.
It goes on:
The Secretary of Homeland Security shall develop a plan to
accelerate the full implementation of an automated biometric
entry and exit data system.
In 2007, now the 9/11 Commission comes back together again. They had
issued a report with a whole lot of recommendations. They met to see
how many of their recommendations had been adopted. They reiterated the
need for an exit visa system and demanded that the exits apply to all
foreign nationals entering under the visa waiver program and added a
biometric component. That was in 2007 when that was passed.
Congress is crystal clear and consistent that this is what we expect
to be done. Has it been done? No. It has not yet been done. What about
this new immigration bill that has 1,000 pages in it and we are told is
the toughest in history? We are told--Senator Schumer said ``tough as
nails.'' Does it require it? Will it ensure that it finally gets done?
No. Not only that, it alters the law. It says it doesn't have to be
done. It eliminates biometrics, and it eliminates land entry and exit
systems. So you do not have an exit visa system at anything but the
airports under their plan, and it is not biometric. It actually weakens
dramatically repeated law enactments of the Congress, so it is not
stronger on the visa program, where 40 percent of the overstays come
from. Forty percent of the people entering the country illegally come
from visa overstays. It doesn't fix that. It weakens that law. I don't
see how my colleagues can come here and brag about this when, plain as
day, that is what their bill does. I do not think the bill should be
considered in this form.
The struggle continues. Get this. Last week the House, still
frustrated about this matter--Representative Barletta of Pennsylvania
got an amendment passed to prohibit funding for Department of Homeland
Security parties and receptions until the biometric entry-exit system
was fully implemented as the 2004 law required.
What do we draw from this? We draw several things. One of them is
that the American people already get it. They don't trust Congress to
do anything they say. We pass laws and we go home and we say we fixed
the biometric bill, and it never happens. We passed six different laws
requiring it, and it doesn't happen. Then they say they are passing the
toughest bill that has ever been written about entry-exit visas and we
are going to fix this problem and we recognize that 40 percent of the
people come through that way, and is it fixed? No. It undermines
current law. Current law is not being enforced, I acknowledge. They
just surrender--give in.
This can be done. First of all, we need to go back. I think the
frustration of the American people with what is happening in this
Congress is well-earned. They have a right to be unhappy. A recent
poll, a poll not too long ago, showed this. It asked people: Are you
more frustrated or angry with people who enter the country illegally or
the government officials who have allowed it to happen? And 88 percent
said they were mad at Congress and the government. The American people
are not mad at people who want to come to the country illegally. They
are frustrated and angry that their elected representatives, who year
after year, decade after decade, promised to fix this system, blithely
go about their business and never do it. They say one thing and they do
another. It is not right.
They say: You know, it just cannot be done. It is too hard. It is too
expensive. It slows down entry-exits. People just don't want to do
this, and that is why we just never got around to it.
We just discovered a report that never got any publicity, but I
didn't realize what was in it, that was published in 2011. It went to
the Appropriations Committee. They are not the immigration committee.
It sat around; nobody paid much attention to it.
[[Page S4066]]
In 2009 the Department of Homeland Security conducted a pilot program
at the Detroit and Atlanta airports to deal with what would happen if
we had an entry-exit biometric visa system at those two airports. They
found that a biometric exit system--we have the entry, remember--was
not only feasible but fast, accurate, and did not slow passengers as
they boarded the departing flights.
During 1 month of heavy international travel time, June and July, the
biometric exit system in Detroit processed 9,448 aliens and identified
44 from the watch list and 60 suspected overstays--out of less than
10,000 people. This is a terrorist watch list and a criminal watch
list. Some of these were arrested for violation of Federal law and had
warrants out for their arrest on nonterrorist charges. Some of them
showed up on watch lists, and 60 of them were suspected overstays. What
about Atlanta? They processed 20,296 aliens subject to US-VISIT and
identified 131 on the watch list and 90 overstays.
Since 9/11, at least 36 individuals who have overstayed their visas
have been convicted of terrorism-related charges. Thirty-six since the
9/11 attacks have been arrested for terrorism charges. They were visa
overstays, including Amine el-Khalifi, who attempted to bomb the
Capitol last year; the Christmas Day bomb plot; and a near getaway by
the would-be Times Square bomber, Faisal Shahzad, who had already
boarded a flight leaving the United States when he was arrested just
before he could take off.
We are once again reminded that border security is an essential
element of national security, and exit control is part of that rubric.
Tamerlan Tsarneav, the Boston bomber--alleged--remained invisible to
the immigration system, having exited the country for a 6-month stay in
Russia because today's biographic exit data was insufficient to
identify him as leaving the country--in this case, a misspelling or he
used a different spelling and he was not picked up on the list, whereas
if we had used his fingerprints, he would have been identified
biometrically instantly.
While S. 744 requires the use of software to correct misspellings, it
may not work for the millions of other names the software does not pick
up. It will not pick up the fact that there is an arrest warrant for
murder out for him--let's say in Indianapolis--when he is getting on a
plane in Boston, but it should get picked up if they use the entry-exit
visa. The individual would then successfully have fled the United
States and may be able to get away completely with a serious crime. The
only way to verify a person is who they claim to be really is through a
biometric identifier.
During the committee markup, I offered an amendment to require the
implementation of the biometric exit system as required by current law
as part of the trigger to allow the Secretary to grant green cards to
those given amnesty. In other words, if she did not have that fixed and
in place as current law required it, the amnesty in 10 years, the green
card, would not be issued.
A biometric air-sea exit solution is available right now, as it was
in 2009. It requires no infrastructure changes to airports and can be
deployed immediately. Neither the TSA nor airlines need to be directly
involved in this.
Also, in 2005, the biometric exit for vehicles and pedestrians at
land ports was tested and found to be workable. To implement that
solution today would require less than was required during the 2005
testing. We simply use the biometric data already in the system as well
as the tamper-resistant card and expansion of the current Trusted
Traveler Program in entry lanes to the exit lanes. If we do the entry,
we need to do the exit lanes.
Nevertheless, my amendment failed 12 to 6. So I guess Senator Schumer
and the leaders of the Gang of 8 didn't give a path to the Republican
members who might have voted for my bill. They had to stick together.
Senator Schumer claimed such a system would cost $25 billion to
implement. Well, somebody had used that figure, and I had only then
discovered this 2011 report of the exit system in Atlanta and Detroit--
this report right here. We just found out there was actually documented
evidence that it doesn't cost anything like that much.
However, when we aggregate the 2008 U.S. visa impact analysis data
and industry data, the greatest total cost for the first year of
technology implementation at air and seaports would be approximately
$172 million to $855 million, depending on collection and the units
chosen. The most expensive units do not require an attendant to even be
there. Instead, there would be a monitoring attendant who can supervise
a number of mobile kiosks all at once.
In addition, in 2008, an air, sea, and biometric exit project
regulatory impact analysis also noted that the air, sea, and biometric
system was less costly than a biographic exit system for several
reasons: improved detection of aliens overstaying visa, 300 ICE agents
have to do overstays now, and cost avoidance resulting from improved
Immigration and Customs Enforcement efficiency; in 2007 cost removal
per visa violator was $18,375 per individual; improved efficiency and
processing of entry-exit data; and improved national security
environment. Today the cost is significantly lower because the latest
technology requires less manpower to operate and support the process.
So in an exit system, when a traveler comes through the airport, before
they board the plane, they go to a spot and for a few seconds--
according to this report there is negligible slowing down--they put
their finger on it, it reads their fingerprint, and says, yes, indeed,
this person who entered the country has permission to leave. It then
runs a check of terrorist and crime data to see if there is a warrant
for the person's arrest, and then moves right on to the plane. The
report found it took less than 2 seconds for a fingerprint capture.
That is amazing.
Of course, a lot of people don't know, but many police departments
provide police officers in their automobiles fingerprint reading data.
So they arrest somebody for DUI, they have them put their finger on the
machine, and bingo, it comes up they are wanted for rape. That is how
fugitives are apprehended today. We do far less hunting them down by
name. We wait for them to get picked up with some sort of check or
other arrest. Mobile units do that.
These systems are now deployed internationally in nine countries and
20 international airports, including Australia, and process over 700
million passengers per month. This can be done, and I am amazed and
frustrated it has not happened.
When Secretary Ridge was Homeland Security Secretary, we talked about
this. My experience in law enforcement was that the fingerprint had to
be the data because it is the fingerprint the police officers and the
FBI use when they arrest somebody for a crime, and many people flee.
Many of the people who flee like to leave the country.
The last thing he said when he left office: I have one bit of advice
for my successors, and that is use the fingerprint. After much effort
and much debate and much conflict, he had distilled that down to that
simple decision. Frankly, we are almost there, and we should complete.
So in the committee markup, an amendment sponsored by Senator Hatch
was adopted that requires yet another pilot program limited to the 10
busiest airports within 2 years, and the FAA designated 30 core
airports over 6 years. The amendment, which does not serve as a trigger
to amnesty or anything else, fails to require biometric exit at the
land ports, which makes the system unenforceable and almost unusable
because a person can fly in and they can exit from a land port. We need
to record that or we won't know whether they ever left the country.
As Senator Grassley said at the time in the committee: In 1996, we
passed an entry-exit system, and it is not law. So what I see before us
is a fig leaf that leaves us to believe we are doing more than the bill
requires, but because the bill does a lot less than what we decided in
1996 we needed to do, I think this amendment should be defeated. But it
wasn't; it passed.
Finally, we were told that all of the triggers would have to be fully
implemented. If they are not fully implemented, there will be no green
cards issued. This is one of the Gang of 8 selling and talking about
the bill. It had to be fully implemented--all the triggers--or there
would be no green card.
So let's take a look at what the bill actually says about that. The
bill says
[[Page S4067]]
after 10 years, the Secretary may adjust the status of those illegal
immigrants who receive amnesty to lawful, permanent resident or green
card status. So the Secretary can adjust the people who came here
illegally from their temporary legal status to permanent resident of
the United States, or green card, and then be on a guaranteed pathway
in 3 years to full citizenship. But that is supposed to only be done
when? The Secretary certifies to Congress that her border security
strategy is substantially deployed, substantially operational, and that
her fencing plans are implemented and substantially completed. These
terms are undefined, leaving these determinations to the sole
discretion of the Secretary, and she said we don't need anymore
fencing. She gets to decide about fencing.
What is she required to do? Her fencing plan has to be initiated and
approved, or her plan has to be implemented. But the plan doesn't have
to call for a single foot of fencing.
Also, the green card status can be given when she has implemented the
new--this is important--employment verification system required under
the bill, which is for new employees, not current employees. They do an
E-Verify system to check on something like that, and it is not
mandatory for all employers until 5 years after the regulations are
published. So the employment effort is not effective for at least 5
years after the amnesty has been provided, and it could take even
longer for it to become fully effective.
The real deadline for implementation of the employment, the E-Verify
successor system they would like to develop, may be as long as 10
years. That is less than what the 2007 bill called for, the bill that
failed. In 2007 E-Verify was required for all new hires 18 months after
the enactment of the bill and for all current employees 3 years after
the enactment of the bill. So their plan for the E-Verify system is far
weaker than the plan in 2007, and it suggests that by putting it off
and not having current employees have to have it used for them that
they are not very serious about it.
Also, she is using an electronic but not biometric system exit system
at air and sea but not land ports of entry. So another requirement for
a trigger is that there must be an end use and an electronic, not
biometric, exit system for air and seaports but not land. Experts have
told us if we don't do land, we never know when anybody has left the
country.
Unfortunately, as are most seemingly tough provisions in this bill,
it is followed by an exception that swallows the rule. The bill allows
the Secretary to grant green cards to those given amnesty without
satisfying these triggers if litigation or an act of God has prevented
one of the so-called triggers from being implemented, or implementation
has been held unconstitutional by the Supreme Court, or the Court has
simply granted certiorari in a case challenging its constitutionality;
and ten years have elapsed since the date of enactment. There are so
many loopholes in it, and so she can certify she has a plan. She can
certify that with expanding the system electronically but not
biometrically, in airports and seaports but not land ports, we end up
with what would appear to be a big improvement over current law, but it
is not. Current law requires biometric in land, sea, and air. So this
reduces that.
The bill undermines the ability to deport people who are in the
country illegally. There are a whole lot of examples I could give at
this point, and I won't--not tonight, to the Chair's relief.
So, as in 1986, amnesty comes first. It will occur. The deportations
will stop, and it happens now. But the enforcement that is promised
will not happen in any effective way. That is clear. If we read the
bill, we see there is not a real sense that anybody who knows anything
about enforcement was there in the room drafting the bill, driving the
legislation, to close loopholes and make this system enforceable in the
future and end its brokenness today, end the illegality today, and put
us on a path we can be proud of for our future. The bill does not fix
illegality that dominates so much of our current system. It surrenders
to illegality and does not stand up and fix it. This is not what the
good people of this country want for their future: another long period
of illegal immigration and another inevitable amnesty.
We can fix the border. We can do that. We can fix our visa system. It
is not that hard. We know how to do it now. We can fix and dramatically
increase the ability of employers to ensure they hire only legal
workers and not hire illegal workers, leaving Americans unemployed at
record rates. We can establish a strong interior enforcement system,
one that has integrity and fairness. This bill is not close to that
goal. Even though we could do it, it fails to move us where we need to
go to put this system on a sound path. It should not become law.
I thank the Chair and yield the floor.
____________________