In The Battle Against Illegal Immigration, Whose Side is The Government Really On?

The Senate reconvened at 9:15 on Thursday, May 25, 2006 to debate S.2611, the guest worker amnesty bill authored by Senators Specter, Hagel and Martinez. After several votes on amendments, the Senate voted to pass S.2611 and send to conference with the House bill, H.R.4437. The following is a summary of the day’s events.

Senator Cornyn offered Amendment #4097, which allows the government to share information about the applicant once his or her application has been denied. He emphasized that the amendment does not get rid of the confidentiality provision and that an illegal alien would not be deterred from applying. Senator Cornyn especially focused on the text of the amendment because it was modeled after the Violence Against Women Act.

Senator Cornyn said that the protection in this provision was important because criminals and terrorists can exploit the legalization program. The Senator emphasized that three of the 9/11 terrorists obtained visas through the 1986 bill and said that the 1986 bill encouraged massive fraud. He strongly argued that this bill must correct the mistakes in confidentiality from 1986, learn from history, and prevent massive organized crime that could gain access through immigration.

Senator Kennedy opposed the Cornyn amendment. He argued that this program, unlike the 1986 program, was about recognizing that people have violated the laws, making it possible for them to work in this country and eventually permitting them to earn citizenship by demonstrating that they have paid their back taxes and learned English. He claimed that this was not real amnesty like in 1986. “The 1986 failure is entirely different then what we have here, that was fraudulent documents…that was 1986 and this is 2006.”

Senator Kennedy discussed the issue of terrorism. He stated that most of the terrorists got into in the United States through Saudi Arabia; they gained access because the CIA didn’t talk to the FBI or INS. He said the problem is that the agencies were not effectively sharing information, not fraudulent information, as was the case in 1986. Senator Kennedy then reasoned that the essential component of the bill is tamper-proof documents, without these the system would not work. He stated the real issue here is creating a functional system with guest workers where we can enforce the law.

Senator Kennedy said that the legislation is very clear and that he wants to avoid deterring people from applying to the program. He expressed concern that if someone lied on their application they will be immediately deported and that will affect the number of people applying for the program.

Senator Cornyn said that Senator Kennedy was reading too much into the amendment. He agreed that what underlined the 1986 document was amnesty and that there was a real issue with fraudulent documents. He said that in a post 9/11 world, it is important that all of our agencies communicate with each other for American safety. However, he said, this bill does not provide for tamper-proof documents. But if aliens apply for this program and are denied, he said, their information ought to be shared with the FBI and other personnel. This can be used to crack criminal syndicates that are not only making false documents but are also trafficking guns and drugs. It is absolutely critical, he said, we be able to share that information with the FBI and CIA. He said that a mistake on an application would not result in deportation.

Senator Kennedy stated that the bill already encourages communication in instances of fraud. He said that the Senate had learned from the 1986 act and that is obvious in the legislation. He cited the section in the bill that requires biometric documents for aliens.. “Other countries have these types of documents and we ought to be able to do it, we can do it and we should do it,” he asserted. He concurred that in 1986 there was a failure to enforce the laws, there was separation between the FBI and INS, but said that we have learned from that and it is evidenced in the bill.

Senator Cornyn argued that the biometric documentation requirement would not be implemented until Oct 26, 2007. He applauded that goal, but wondered what the effect would be in the interim. He again stated that his amendment has the same language as the Violence Against Women Act. He quoted the text, which stated that confidentiality no longer applied once the “application for relief has been denied and all applications for appeal have been denied.” The Senator stated that this amendment is not designed undermine the compromise; it is designed to make it work.

Senator Specter disagreed with Senator Cornyn’s statements about confidentiality. He said the reason for confidentiality was to get the applicant to be candid and honest when filling out the application.

Senator Specter said that in addition to the confidentiality of the applicant, the bill provided confidentiality to the employer. He disagreed with Senator Cornyn and said the value of providing confidentiality and encouraging immigrants to make full disclosure outweighs the advantages of the amendment.

Senator Kennedy stated he was aware of the requirement that every green card and every visa be machine-readable and biometric. The Senator stated that this is a dramatic shift and change in dealing with issues of fraud. He said that security officials confirm it is within our best interest to bring these people, often associated with crime, out of the shadows and to isolate those individuals that pose a threat.

Senator Kennedy contended that hundreds of thousands of immigrants would likely be dissuaded from participating because of these conditions. The bill requires DHS to dispose all information. He said that unlike the Violence Against Women Act, which says that the Attorney General may disclose information to security officials, this amendment says the Secretary of Homeland Security shall provide information when necessary. He contended that this point is much stronger than the original provision.

Senator Cornyn said he was bewildered that the Senate was debating such a common sense amendment. He said that the provisions of the amendment improve communication between our agencies and make us safer.

Senator Cornyn reiterated that this amendment would not deter applicants, but rather these changes would affect those who already applied and were denied. He addressed his concern about the 12 million people who are moving from illegal status to legal and the need to have provisions in place for them. He stated that the American people are very critical of taking these 12 million people and putting them on a path to citizenship. He felt that this skepticism comes from many directions and one of these directions is the fraud from 1986. He concluded it was possible to keep the benefits of the program for those who deserve them while eliminating them for those who do not.

Senator Kennedy argued that the underlying bill provides for communication between agencies. He stressed that the Cornyn amendment has a much stronger provision than the Violence Against Women Act. He finished by reaffirming that we have learned from the past and now have tamper-proof documents and communication between agencies.

Senator Cornyn argued, however, the language of the bill only provides for an investigation of an individual (the applicant), and not a criminal organization or any third parties. He said there was no reason to limit investigations in such a way when they could potentially uncover many cases of fraud. He asserted that his amendment gives the underlying bill a chance to work. He emphasized the need to make sure that those who are qualified to work can work and that unless we have a system in place that will actually make it work all of this discussion about the comprehensive plan is a rouse.

Senator Kennedy referred to criminal penalty in the bill for “any person who knowingly submits a document with fraudulent information.” He argued Senator Cornyn’s amendment was unnecessary because there are already provisions to facilitate criminal investigation.

Senator Sessions supported the Cornyn amendment. The Senator said that this is a defining amendment; it defines us as a nation and as a Senate. He asked whether they were going to continue to allow illegal operations at the border. He questioned the sensibility of encouraging document fraud and then not permitting investigators to examine it. He said we are incapable of drawing a line anywhere.

Senator Bingaman proposed Amendment #4131, which would set a new cap on the amount of new employment-based immigrants. The Senator explained that current law sets the employment-based visa cap at 140,000 and that the Hagel-Martinez bill proposes to increase the cap to 450,000 workers. In addition, S.2611 exempts family members of employment-based immigrants from the cap.

The Senator went on to note statistics released by the Congressional Research Service which show that there is approximately 1.2 family members accompanying each worker. Under these numbers, he said, there would be 990,000 total immigrants coming to the U.S., including family members, for the first 10 years. He argued that if there are more than 1.2, then these numbers “go up pretty dramatically.”

Senator Bingaman described that under the pending legislation we don’t know how many people may come in. “We ought to fix that.” He continued by saying he believes we need to pick a number to limit the workers, and the number proposed in his amendment is 650,000 people, including the families of the workers. The Senator insisted that this is a high number; it’s over 2 times more than the number in the McCain-Kennedy bill, and over 4 times what we currently permit. He has “tried to be generous in this,” he said, stating that we should have a lot of new immigrants transferring over, but there should be a limit. The Senator continued, stating that to leave the bill with no cap at all would be a mistake. He clarified that this cap is just for one of the categories that is available, and would not in any way affect the agriculture blue card, or highly skilled worker provisions.

Senator McCain rose in strong opposition to the Bingaman amendment. He argued that Senator Bingaman “wants us to become like other countries,” who have riots, car burnings, and other serious situations. He said that there are lots of ways for highly skilled workers and educators to immigrate to the U.S., and the cap would be on lower skilled workers. The Senator explained that many people who have come here are low skilled and have worked their way up the ladder. He insisted that with Bingaman’s amendment, we would be saying “if you’re low skilled, we’re going to make sure that neither you nor your children can come here.” He stated that this is against everything that America stands for, and that the Bingaman amendment clearly discriminates against people of low skill. He concluded by saying he “doesn’t want to be like everyone else.”

Senator Bingaman replied, saying “he says this is unfair to low-income and low-skilled workers because we are putting a cap on them”, however his proposal in the McCain-Kennedy bill had a set a 290,000 cap. He argued his cap is not unfair because it is larger than any previous cap suggested. He also insisted that while the Chamber of Commerce and immigration groups are opposed to the cap, he thinks that it is a responsible method.

Senator Kennedy rose in disagreement, saying that the reason he doesn’t support the proposed cap is because it’s not fair to workers of different skill levels. He explained that skilled workers and professionals “will all get green cards,” but it is the low skilled workers that are sneaking over because there is not a legal system to get them in; we need to treat people fairly and get a fair distribution of skills.

Senator Bingaman reiterated that he is accepting the distribution of different skill levels in the Hagel-Martinez and McCain-Kennedy legislation and that his amendment does not affect it. The Senator protested, however, that the bill as is leaves the numbers of employment-based visas totally uncontrolled.

Senator Kennedy said that there is a cap. He explained that under the current legislation the spouses and children are not counted, and “you are counting them now.” He asserted that Senator Bingaman is changing it because he is changing the numbers. This limitation skews the Green card process towards high skilled people only, he continued. The Senator explained that he wants to tell low skilled workers, work hard and you can get your citizenship.

Senator Bingaman argued that immigrants are much more likely to get green cards under his proposal than under the McCain-Kennedy legislation, because his number is higher than theirs. He argued that their 290,000 cap did include family, and that his does too, increasing it to 650,000. He said his proposal is much more generous than theirs.

Senator Graham joined the debate, saying to Senator Bingaman “if you think you’re helping, you’re not.” He said he is not questioning anyone’s motives, but that they are trying to create “order out of chaos.” We live in a chaotic world in terms of immigration, he said, and whatever the numbers are, he doesn’t want to deny his country the ability to assimilate hard working people that we need. The Senator argued immigration will be regulated by needs of economy, and when the economy can’t take any more people, the numbers will change. He explained that when you change the element of a family having to choose family status vs. working status “you create a chaotic event.” He expressed his disapproval of creating disorder in a way that does not reflect where we want to be in society. When you count children who are not working, you are hurting the economy, the Senator insisted. He stated that he fundamentally disagrees with Senator Bingaman, and asserted that if you come here under this bill, you will have to prove to us that you are worth staying here, you are not getting anything for free. He noted that future generations of people coming here are going to be asked to do more than any other generation in the past.

Senator Conrad rose in support of the Bingaman amendment, stating that he has great respect for Senator Graham, but disagrees with his statements. He informed the body that he has not yet decided how to vote on the bill, but if there are no caps, it will have bearing on how he will vote. He continued, saying this bill is “very imperfect”, and that the Bingaman amendment passes a lifeline for this bill. If this bill has no caps, you will find a strong public reaction against it, he said.

Senator Sessions rose in support of the Bingaman amendment. The Senator outlined the current law under which spouses and children are not included in numbers. He asserted that it’s not a question of emotions; it’s a question of what this bill does. He voiced his support for the Bingaman amendment because of the fatally flawed condition of the bill.

Senator Kennedy disagreed, saying over the course of this legislation, we have recognized the pressure on the border, on the people that are going through it, and on companies who need unskilled workers for jobs that Americans won’t take. He argued that we should treat low and high skilled workers with equity because we value everyone, and that the Bingaman amendment will eliminate possibilities of low-income people to obtain a green card while they are working here. Under basic immigration law, 70% of green cards go to high skilled workers, and 30% go to low skilled workers, he explained. The Senator informed the body that he had tried to work these differences out with Senator Bingaman, but has been unable to do so.

Senator Specter rose in opposition to the Bingaman amendment, saying the amendment would substantially limit family members to accompany the worker, this amendment isn’t necessary because we have sufficient room to accommodate the guest workers and their families.

Senator Bingaman defended his amendment, reiterating that there is nothing in his amendment about the ability of families to accompany workers; it simply says there should be a cap to limit the workers, as well as their families. He argued “there should be some limit, just as previous bills have said.” He explained that he chose 650,000 as the cap because Congressional Research Service says this is what would actually happen under Senator Specter’s proposal. He insisted his amendment is necessary so we can know how many people are actually coming in. He said his amendment is an effort to improve the bill, and it does not affect many different areas such as agricultural blue card workers.

Senator Feingold offered amendment #4083. He stated that this amendment would ensure that immigrants would actually be able to secure meaningful judicial actions. He explained that he was concerned about the provisions in the bill that would only grant a stay of removal to those aliens who had clear and convincing evidence that their lives would be in danger should they return to their native country. He suggested that this provision was very challenging for them to meet, and would be detrimental to immigrants seeking political asylum. He proclaimed that his goal was to provide relief to these persons.

Senator Feingold made an economical argument as well in support of his amendment. He said if this provision became law the entire case would have to be litigated twice, once for the stay of removal and the second time for the actual case. He argued that those who are leaving their native lands will be forced to return to those places where they may not safe because they could not get a stay. He stated that if his amendment did not pass, those aliens deserving asylum would be deported. He also added that federal courts do not grant stays of removal when the immigrant does not have a good chance of success in the court process; they will deny the stay of removal if the immigrant can safely return home.

Senator Specter rose in support of the amendment. He argued that this standard of clear and convincing evidence is very challenging and should not be proposed in this instance; rather the existing standard of the likelihood to succeed should remain in place. He said keeping the current standards was in the interests of justice.

Senator Brownback concurred with the previous remarks. He stated that he did not know of anywhere else where the standard of clear and convincing evidence is as high. He mentioned that he had been to these detention facilities and seen the problem that this amendment is trying to solve. He believed that there are too many people claiming asylum status and overwhelming the system. He said, however, that the people that put forward this amendment are targeting the right issue, but if you sent them home, they would merely go to prison and be likely to disappear.

Senator Brownback concluded his time by stating that the evidence in these cases depend on a person’s word, with this type of evidence it is especially challenging to reach clear and convincing status.

Senator Coburn acknowledged that there are valid points that have been raised from these Senators. He asked what was going to happen to the 45-50% of our aliens who would be permitted stay here for 27 months. He stated that it is far more likely that this would be of tremendous negative consequence to us. He expressed his concern over what this country is going to do when the number of criminal aliens in this country is even higher than it is now. He pointed out that federal prison costs for illegal aliens are already outrageously high.

Senator Coburn declared that the administration opposed this amendment because it would permit even the most meritless appeals to have a stay of removal. He agreed that the standard is difficult to achieve but that it was necessary to measure it against all those other consequences. He noted that 90% of the stays of removal right now are overturned at the appellate level anyway. “All I am saying is what could happen?” He did not challenge what might happen to somebody denied asylum, but asked where the common sense was in the concept of paying for someone to stay in this country for 27 months when they did not deserve that benefit.

Senator Feingold agreed with Senator Coburn that the goal should be to achieve the right balance and said that his amendment tried to correct this mistake in the bill. He also stated that he wanted another element of common sense and balance into this. He said there would not be a problem if the discussion were only about expedited removal, but that the issue goes beyond expedited removal to all removal proceedings.

Senator Feingold argued that our judges know how to adjudicate so-called “meritless claims.” Immigration judges are already evaluating the likelihood of success of these immigrants’ claims and also if there will be substantial injury if a stay of removal is not granted to them. He asserted that this process would not be altered by his amendment.

Senator Kyl rose in opposition to the Feingold amendment, saying that in addition by amending the bill, the amendment would strike existing law. He explained that last year there were 135,000 “other than Mexicans”, and because they come from further away it is more difficult to send them back. In the meantime, he said, they can make a case for asylum under the usual standards and be processed like all asylum claims. He argued that Michael Chertoff, the Secretary of the Department of Homeland Security, has expanded expediting along the whole border. The Senator continued, saying the law says you can’t get an injunction for final order of removal, and that it takes forever and as a result detainees are released. Consequently, he said the amendment strikes the injunction provision which affects expedited removal.

Senator Feingold responded that if we were only talked about expedited removal, he “would not bring up the amendment.” He continued, arguing that the 1st, 2nd, 3rd, 6th and 9th Circuits have said this standard should apply. In addition, he explained that his amendment would remove the language that Senator Coburn added in committee.

Senator Sessions opposed the Feingold amendment because it would accelerate an increase in appeals. He argued that a person who comes to the U.S. should only be able to stay here according to the laws of our country. Courts are changed with administrative law, he said, and after the Courts have decided that those here illegally should be removed, those people are no longer protected by the Constitution. This does not apply just to asylum cases, it applies to all cases, he asserted. The Senator discussed how on average, it takes 27 months to adjudicate these cases, and he wanted to know, “what happens during those 27 months?” What happens, he said, is that we must let the them out on bail, at which point they disappear. “We must get serious about immigration,” he declared. The more we create exceptions for people, the harder it is to operate an effective immigration system.

Senator Sessions proposed Amendment #4108. He said that the question of immigration is clearly one of the most important issues of this decade. Americans are aware of this, and they are engaged in the debate. The Senator said that the American people are mad at government officials because they have not created a lawful system and have not enforced the law. He pointed out that in 1986 we only had 3 million illegal aliens; we now have 11 million. The American people are frustrated with our “lawless system,” he said. He warned that the American people will not be forgiving if they try to “pull another fast one.” He argued that this is a deeply flawed bill, and that he believes many will vote for it simply because they are counting on the House to “save us” when they go into the conference committee. The Senator insisted that immigration will not end if this bill is not passed, there will not be mass deportations. He concluded that this bill is so deeply flawed it cannot be fixed by amendments.

Senator Sessions outlined what he considered to be fundamental flaws of the bill: 1) illegal aliens will get every single benefit this nation bestows on its citizens. We should not give the same benefits to those that come unlawfully as those who come lawfully; 2) the border is not secured by this legislation, or even the House legislation. We can authorize fencing and technology, but will we fund it?; 3) the workplace verification system and social security number issues are weak and left unsolved; 4.) The temporary guest worker program is not temporary; 5) the bill increases legal immigration by 3 times the current level; 6) there is a huge financial impact on the federal government over the next 20 years. The tax revenues will not be offset as Senators have mentioned because aliens coming in are not well educated and are low-skilled; and 7) we have not created an immigration system based on need or skill.

Senator Sessions said that the CBO estimated that EITC (Earned Income Tax Credit) payments resulting from the bill would cost about $29 billion. The Senator explained that this was because as soon as illegal aliens become legal, they are eligible for EITC. The Senator said that the average EITC credit is $1,700 and the maximum credit is over $4,000. He argued that the EITC was designed to help hardworking American families, not to reward those who came here illegally. He emphasized there is no moral or legal reason to provide these benefits. He said his amendment alone would pay for the entire enforcement system over the next 10 years.

Senator McCain rose in opposition, saying this is just another amendment that says aliens must play by the rules but can’t live by them. He said the amendment is “remarkably” denying tax benefits to those that have legal status. He then exclaimed if legislation is designed so that legalized aliens are taxed the same way as US citizens without benefits, “will they next have to ride on the back of the bus?” This is an indefensible double standard, he argued. We need to go forward not backward. He stated that immigrants are not looking for a handout, they’re looking for a chance. The Senator explained EITC gets more children out of poverty than any other federal program, and many of these children are U.S. citizens whose parents are aliens.

Senator Specter rose in opposition to the amendment.

Senator Kennedy rose in opposition to the amendment, saying it would hurt children.

Senator Graham rose in opposition, asking how far we would take this, what role should tax credit play in punishing violators of the law? He argued that felons such as rapists and murderers in the U.S. still get tax credit, and that this is not proportional.

Senator Lieberman rose in opposition, saying spending for EITC needs to be balanced with the benefits. The amendment, he said, would have a troublesome effect that would further impoverish some of our nation’s children. He went back to history, describing how EITC, which was proposed by Nixon and enacted by Ford, it was created to help even out payroll deductions. He added that the IRS is currently not equipped to handle such a provision. The Senator said the purpose of the legislation is to bring people out the shadows, which must include equal protection of the law, tax laws and EITC.

Senator Sessions replied saying right now these aliens are subject to deportation. He argued that if, according to his colleagues, this amendment punishes them, what do they consider making them pay fines and back taxes?

Senator McCain asked wouldn’t an objective observer say mistreatment is to “force people to earn citizenship” and then deprive them benefits that are designed to help low-income families? He said that is like saying “we’ll give you legal status but not really, we may cause your children to go hungry.”

Senator Kennedy rose in support of Senator McCain and reminded the body that according to CBO estimates, credits are offset by revenues of over $30 billion. He stated that undocumented aliens are not eligible and will not be eligible, and that the proposed amendment deprives legal families EITC.

Senator Ensign offered amendment #4136. This amendment, he said, also relates to the EITC, but is a little different than Senator Sessions’ amendment. Senator Ensign explained that S.2611 requires aliens who are legalized to pay back taxes. “I don’t know how many times I have heard that,” he said. Yet, he said, when aliens go back to pay their back taxes, because most of them are low-income, they will qualify for the EITC and actually get money back from the IRS. Senator Ensign stated that his amendment makes aliens who are applicants for legalization ineligible to receive the EITC when they go to pay their back taxes under the bill.

Senator Kennedy opposed the Ensign amendment. He said that the amendment not only prohibits aliens from claiming the EITC, but from claiming any other credit or any refund at all. “What could be more unfair” he asked.

Senator DeMint rose in support of the Ensign amendment. The Senator said we should secure our borders before we grant amnesty. Yet we rejected the Isakson amendment which required enforcement first. That, along with the rejection of the Ensign amendment, discouraged many people. We don’t need to continue adding reward on top of reward, he said. It does not make sense. It is unfair to Americans and legal immigrants and will create resentment towards new immigrants coming in under the bill.

Senator Hutchison also supported the Ensign amendment. She said that over the last 10 years we have watched while illegal aliens have ignored our laws. That, she said, is unfair to legal immigrants. The Senator noted the importance of border security and said that she voted against the budget point of order because she wanted to spend the money on border security. However, she said, we are in danger of repeating the mistake of 1986.

Senator Ensign argued that we are rewarding people who steal social security numbers to file tax returns. Stealing a social security number is a felony, he said. He acknowledged that the amendment bars aliens from claiming other credits and returns when they pay their back taxes. He said he had drafted the amendment that way because it would be a bureaucratic nightmare to try to sort out the mess that the illegal aliens created in the first place.

Senator Graham opposed the Ensign amendment. He reiterated his previous arguments against the Sessions amendment saying that it was unfair to use the tax laws to punish these aliens. The Senator stated that we give these tax benefits to violent felons. “Enough is enough,” he said. “You go way too far.” The Senator said he recognized the need to pay one’s debt to society, but that America is the place where people can start over. We need the workers, he said. Not the bad people, but the good, those who came here to work.

The Senate then moved towards the final votes on S.2611. Senators McCain, Kennedy, Frist, and Durbin all gave closing statements in support of the bill.

A roll call vote was taken on the Feingold amendment. The amendment passed 52-45.

A roll call vote was taken on the Sessions amendment. The amendment failed 37-60.

A roll call vote was taken on the Ensign amendment. The amendment passed, 50-47.

A roll call vote was taken on final passage of S.2611. The bill passed 62-36.

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