[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 8294-8297]
[From the U.S. 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

[[Page 8295]]

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, 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

[[Page 8296]]

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.
  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.

[[Page 8297]]

  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 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.

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