Comprehensive Immigration Reform Act of 2006
COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006 -- (Senate - May 23, 2006)
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Mr. CORNYN. Mr. President, I rise to oppose the pending amendment. It is interesting how causes line up. I find myself critical of the Hagel-Martinez compromise. I also find myself in agreement with the diagnosis of the Senator from California that the tiered method of trying to divide up the undocumented population will result in rampant fraud, just as it did in the post-1986 amnesty. But while I agree with her on the diagnosis, I don't agree with her prescription. The prescription, the alleged cure for the diagnosis, is that basically we throw up our hands and say that we cannot enforce the law. We can't secure our borders. We can't verify eligibility to work at the work site. We can't sanction employers who cheat. So we have to let anyone and everyone who has come to the United States, either in violation of the law or legally and overstayed, get basically the best gift that America can confer, and that is legal permanent residency and American citizenship and to jump in line ahead of those who have waited patiently outside the country and revisit the mistakes of 1986 when amnesty was tried.
I have two articles from the New York Times, one dated June 18, 1989 and one dated November 12, 1989. I ask unanimous consent that these be printed in the RECORD at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibits 1 and 2.)
Mr. CORNYN. The June 18 article says:
The most sweeping effort to halt illegal immigration in American history, the 1986 overhaul of immigration law, may have cut the flow of illegal aliens less than expected and may have actually encouraged unlawful entry in several ways.
It quotes a professor Wayne Cornelius, director of the Center for U.S.-Mexican Studies at the University of California in San Diego:
We found no evidence that the 1986 immigration law has shut off the flow of new undocumented migrants.
The article, dated November 12, 1989, includes a quote from the junior Senator from New York, who was then serving in the House of Representatives. It says:
Representative Charles E. Schumer, a Brooklyn Democrat who was an author of this Special Agricultural Worker provision, said that in retrospect the program seemed ``too open'' and susceptible of fraud. But he argued that the budget decisions had made the battle to combat fraud more difficult.
In other words, alluding to the fact that notwithstanding the policy decisions made by Congress in 1986, that, in fact, it was the failure to actually finance and implement the policy for work site verification and employer sanctions that contributed to the ineffectiveness of the 1986 amnesty.
I hope we will learn from the mistakes of the past and are not condemned to relive them with this bill. But I do agree with my colleagues, Senator Kennedy, Senator Specter, the chairman of the Judiciary Committee, Senator Martinez and others, that while the Senator from California is absolutely correct in her diagnosis, this sets us up for a repeat of massive fraud. The prescription she recommends is not well advised.
I yield the floor.
Exhibit 1
[From the New York Times, June 18, 1989]
1986 Amnesty Law Is Seen as Failing To Slow Alien Tide
(By Roberto Suro)
HOUSTON, June 17.--The most sweeping effort to halt illegal immigration in American history, the 1986 overhaul of immigration law, may have cut the flow of illegal aliens less than expected and may have actually encouraged unlawful entry in several ways.
Two years after it began to take effect, experts around the country are starting to draw conclusions about the law's effect. As thousands of people continue to enter the country illegally every day, the first arguments are being entered in a debate over whether the legislation has achieved its goals, and whether it ever will.
Some in Congress seek more effective enforcement of the law; others want to focus on the poverty and turmoil in the third world that force people out of their homelands. Meanwhile, the Immigration and Naturalization Service has proclaimed the law a clear success, and the Bush Administration has yet to put its own stamp on immigration policy.
``We have found no evidence that the 1986 immigration law has shut off the flow of new undocumented migrants,'' said Wayne Cornelius, director of the Center for U.S.-Mexican Studies at the University of California at San Diego.
A DECADE OF STUDY
The Immigration Reform and Control Act of 1986, whose measures began to take effect in May 1987, was the first nationwide response to a wave of illegal immigration that began in the mid-1960's and created a resident population of illegal aliens variously estimated between 6 million and 12 million people.
After a decade of study and argument in Washington, the 1986 law emerged as a mixture of humanitarian and restrictive measures. Unlike the two previous efforts to counter similar waves of illegal immigration in the 1930's and 1950's, there was no resort to mass deportations. The law offered legal status to illegal aliens who had lived in the United States continuously since Jan. 1, 1982, and it imposed penalties on employers who knowingly hired illegal aliens. It also allowed migrant workers to enter the United States during harvest season.
``The legislation bought time for everyone and made the problem more manageable for a while,'' said Leonel J. Castillo, who was Commissioner of Immigration and Naturalization during the Carter Administration and is now president of Houston International University. ``It seems, however, that time has passed more quickly than expected, and so it is important to see where we stand, because I think we will be dealing with the issue again soon.''
TORRENTS OF PEOPLE
According to indicators used by the immigration service to estimate traffic across the southern border, this year there will be 1.7 million to 2.5 million crossings. The most recent statistics signal that the flow may have increased in April and May.
Separate surveys of illegal aliens conducted by researchers based in Mexico, Texas and California all found that immigration by first-time travelers, as against those who had previously been to the United States, has been on the rise for at least a year. Experts also agree that the flow had dropped off through most of 1987. As a result, immigration experts say they have identified a ``wait and see'' response to the law among potential immigrants that may be producing a new wave of illegal immigration.
Doris Meissner, an expert on immigration for the Carnegie Endowment, a Washington research organization, said, ``There is evidence that many potential immigrants waited for a while to see how the law worked and have since begun moving again. If so, we should see the flow across the border accelerating any day.''
A MAGNET OF SORTS
The 1986 law allowed 3.1 million previously illegal aliens to obtain legal status here. Recent studies show that many thousands of people crossed the border surreptitiously to take advantage of the program, some of them with falsified documents and personal histories. The mass of newly legalized immigrants is also acting as a magnet for illegal aliens who want to come to the United States to join friends and relatives.
A plan to strengthen the Border Patrol was never fully carried out, and experts reach widely differing verdicts on the effectiveness of the sanctions against employers who hire illegal aliens.
Representative Charles E. Schumer, the New York Democrat who was instrumental in shaping the law's final compromises, said, ``The legislation has had some effect but not close to what it should have been.'' He complained that the Reagan Administration favored passage of the law but never gave the immigration service the resources to enforce it. ``So far, the law really has not been given a fair test,'' he said.
The current debate over immigration policy is likely to affect not only future law but also foreign policy. After hearings last month on the law's effect, Representative Bruce A. Morrison, a Connecticut Democrat who is chairman of the House Judiciary Committee's Subcommittee on Immigration, Refugees and International Law, said, ``Looking at what's happened the past few years it is increasingly obvious that most of the reasons for illegal immigration are in the countries people are leaving, and that unless those conditions change we may be able to reduce the flow somewhat, but no enforcement scheme will stop the tide.''
A LONELY ASSERTION
At those hearings Alan C. Nelson, Commissioner of the I.N.S., argued that a steady decline in the number of people apprehended trying to cross the border ``continues to demonstrate that the law is working and employer sanctions are having the intended effect of reducing illegal immigration.''
But the immigration service is now virtually alone in asserting that the sanctions have substantially cut the flow of illegal immigrants. Mr. Nelson has said repeatedly that the number of people apprehended on the border has dropped at a rate of 40 percent a year since the law went into effect. But many scholars dispute Mr. Nelson's statistics. Some researchers believe sanctions on employers have cut the flow, but not by 40 percent, and other experts argue the sanctions have had no effect at all.
The effects of the law are illustrated in the experiences of two recent illegal immigrants.
A 30-year-old woman from El Salvador said that in February 1988 she left home to live illegally in Texas in part because ``my cousin got papers under the amnesty, and so she was able to help me with money and a place to stay and generally in getting around.'' But as a result of the law, she said, ``there is no way to get a good job, because they always ask for your papers.''
The woman, a secretary in El Salvador, cleans houses in Houston, and although she would like better work here, she said she had no desire to return to the poverty and political violence of her homeland. ``Yes,'' she said, ``it is more difficult to get here and earn money now, but people still do it.'' Like other illegal aliens interviewed, she asked not to be identified.
A FAMILY ASUNDER
In the case of another woman from El Salvador, the law had contradictory effects. She arrived here in 1981, qualifying for the amnesty, but her five children, now 10 to 18 years old, arrived too late to be legalized. ``It is a great worry for me,'' she said, ``because my two oldest have graduated from American high school. Their home is with me here, but they cannot get real jobs. What is their future?'' According to the immigration service, 3.5 million to 4 million illegal aliens live in the United States on an established basis, as against 6.5 million to 7 million before passage of the 1986 law.
The drop is accounted for by the number of applicants for the amnesty programs. In effect, the amnesty divided illegal immigrants into those who were suddenly legalized and those who were not, but it did not physically separate these people.
The immigration service expects that a vast majority of amnesty applicants will receive permanent status as legal residents. If they then become citizens after a five-year waiting period, they will be able to get legal status for their spouses and children.
THE MEN WERE FIRST
In the meantime, however, the law has created a new and growing category of illegal alien: the relatives of amnesty applicants. Noting that nearly 70 percent of the amnesty applicants are men, Nestor Rodriguez, a sociologist at the University of Houston, said: ``Usually, the men were the first to migrate, and so more of them qualified for the amnesty. Many woman and children who followed along later did not qualify, and certainly the men who were here alone and got papers are now bringing in their families illegally.''
The effect of the amnesty on illegal immigration goes beyond relatives, however.
``Illegal immigrants have a long history of following well-established routes,'' said Mr. Castillo, ``and the amnesty program gave those routes a little more solidity. Now, instead of relying on other illegals, a new arrival is likely to know people here who are legal and can offer help with all kinds of things. It's my guess that it will take a generation to break those ties.''
Mr. Cornelius of the University of California at San Diego conducted extensive surveys of three rural Mexican communities and has concluded, ``There has been no significant return flow of illegals who suddenly found themselves jobless in the United States.'' In the short term at least, he said, the 1986 law ``may have kept more Mexicans in the United States than it has kept out'' because it granted some kind of amnesty to about 3.1 million people.
Although immigration experts agree that the prohibition on hiring undocumented workers has made it more difficult for illegal aliens to find work here, they differ widely on how much the sanctions on employers have reduced the flow across the border.
ARREST RATES ARE DEBATED
Much of the debate over the rate of illegal immigration centers on statistics for the apprehension of aliens along the Southern border because the immigration service uses these figures to support its assertion that the sanctions have been effective.
Almost all experts dismiss the immigration service view that proof of decreased flow lies in the 40 percent drop in apprehensions each year since 1986. The agency's critics say the number of Border Patrol agents assigned to watch the border also decreased markedly in that time, and so fewer apprehensions were inevitable.
Also, it is argued that since 1986 the agents remaining on the border have spent more time tracking down drug smugglers, another reason why a decline in apprehension would not necessarily mean there was a drop in the flow of illegal aliens. Yet other researchers insist that a substantial part of the decline in apprehensions is explained by the fact that most of the 3.1 million amnesty applicants can move across the border as they have for years but do it legally.
Chart of breakdown of legalization applicants and agricultural workers by gender, type of work, age, and state they applied in.
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Exhibit 2
[From the New York Times, Nov. 12, 1989]
Migrants' False Claims: Fraud on a Huge Scale
(By Roberto Suro)
HOUSTON, Nov. 11, 1989.--In one of the most extensive immigration frauds ever perpetrated against the United States Government, thousands of people who falsified amnesty applications will begin to acquire permanent resident status next month under the 1986 immigration law.
More than 1.3 million illegal aliens applied to become legal immigrants under a one-time amnesty for farm workers. The program was expected to accommodate only 250,000 aliens when Congress enacted it as a politically critical part of a sweeping package of changes in immigration law.
Now a variety of estimates by Federal officials and immigration experts place the number of fraudulent applications at somewhere between 250,000 and 650,000.
The Immigration and Naturalization Service has identified 398,000 cases of possible fraud in the program, but the agency admits that it lacks both the manpower and the money to prosecute individual applicants. The agency is to begin issuing permanent resident status to amnesty applicants on Dec. 1, and officials said they were approving 94 percent of the applicants over all.
Evidence of vast abuse of the farm worker amnesty program has already led to important changes in the way immigration policies are conceived in Congress. For example, recent legislation to aid immigration by refugees from the Soviet Union was modified specifically to avoid the uncontrolled influx that has occurred under the agricultural amnesty program.
Supporters of the farm worker amnesty argue that it accomplished its principal aim of insuring the nation a cheap, reliable and legal supply of farm workers and that it made an inadvertent but important contribution in legitimizing a large part of the nation's illegal alien population.
Critics point to cases like that of Larry and Sharon Marval of Newark. Last year they pleaded guilty to immigration fraud charges after immigration service investigators alleged that the Marvals were part of an operation that helped about 1,000 aliens acquire amnesty with falsified documents showing they had all worked on a mere 30 acres of farmland.
The amnesty for farm workers was a last-minute addition to the Immigration Reform and Control Act of 1986, which sought to halt illegal immigration with a two-part strategy. Under a general amnesty, illegal aliens who could prove they had lived in the United States since before Jan. 1, 1982, were given the chance to leave their underground existence and begin a process leading to permanent resident status. And to stem further illegal immigration, the employment of illegal aliens was made a crime.
The agricultural amnesty program was adopted at the insistence of politically powerful fruit and vegetable growers in California and Texas who wanted to protect their labor force. In several respects, the provisions for the program were much less strict than the general amnesty program, which drew 1.7 million applicants. Instead of having to document nearly five years of continuous residence, most agricultural worker applicants had to show only that they had done 90 days of farm work between May 1, 1985, and May 1, 1986.
Representative Charles E. Schumer, a Brooklyn Democrat who was an author of this Special Agricultural Worker provision, said that in retrospect the program seemed ``too open'' and susceptible to fraud. But he argued that budget decisions had made the battle to combat fraud more difficult.
``There has not been enough diligence in tracking down the fraud,'' he said, ``because funding for the I.N.S. has been cut by the White House in each of the last three budgets, even though everyone agreed when the bill passed that greater I.N.S. manpower was essential to make it work.''
Congress rarely raises the immigration service budget above Administration requests.
Aside from its budget problems, the immigration service has repeatedly come under fire this year in Congress and in an audit by the Justice Department for what was termed mismanagement and administrative inefficiency.
John F. Shaw, Assistant Immigration Commissioner, agreed that ``manpower restrictions'' at the agency were a major factor in the fraud in the agricultural amnesty program. He said much of the fraud ``shot through a window of opportunity'' when the agency was frantically trying to deal with many new burdens of the 1986 immigration law.
Mr. Shaw said law-enforcement efforts had been limited to the people who sold false documents to applicants for the farm worker amnesty. The immigration service has made 844 arrests and won 413 convictions in cases alleging fraud in the amnesty program. The people involved ranged from notaries public to field crew leaders. ``It was a cottage industry,'' Mr. Shaw said.
The immigration service can revoke legal status if it finds the applicant committed fraud, but even this effort is limited. Only applications that appear linked to a fraud conspiracy are held for review, as when an unusually large number of applicants assert that they have worked in same place. Some 398,000 aliens have fallen into this category since the application period ended last Nov. 30, but it is likely that many of them will get resident status.
Mr. Shaw said the fraud conspiracies often involved farms that actually did employ some migrant labor. So it is frequently impossible to separate legitimate from illicit claims.
Given the limited law-enforcement effort, no precise count of fraud in the agricultural amnesty program is possible. But some rough estimates are possible based on information from the aliens themselves. An extensive survey conducted in three rural Mexican communities by the Center for U.S.-Mexican Studies at the University of California in San Diego found that only 72 percent of those who identified themselves as applicants for farm worker amnesty had work histories that qualified them for the program. A similar survey conducted by Mexican researchers in Jalisco in central Mexico found that only 59 percent qualified.
But fraud alone does not explain why the program produced more than five times the applicants Congress expected. Frank D. Bean, co-director of the Program for Research on Immigration Policy at the Urban Institute in Washington, said the miscalculation in the Special Agricultural Worker program reflected longstanding difficulties in tracking the number of temporary illegal migrants from Mexico.
``It is at least plausible that a very large percentage of the S.A.W. applicants had done agricultural work in the U.S. even if they did not meet the specific time requirements of the amnesty,'' Mr. Bean said.
Mr. Shaw of the immigration service, and other critics of the law, believe there were more fundamental flaws. ``It was a weak program and it was poorly articulated in the law,'' he said.
Unlike almost all other immigration programs, which put the burden of proof applicant, the farm amnesty put the burden on the Government. Consequently, aliens with even the most rudimentary documentation cannot be rejected unless the Government can prove their claims are false.
Stephen Rosenbaum, staff attorney for California Rural Legal Assistance, a nonprofit service organization for farm workers, argued that there was no other way to structure an immigration program for an occupation ``that does not produce a paper trail.'' He noted that farm workers are paid in cash and neither the employers nor the workers keep detailed records.
``You can argue the wisdom of a farm worker amnesty, but if you have one, you have to recognize the immense logistical problems involved in producing evidence,'' he said.
The immigration service at first tried to apply the stringent practices common to other immigration programs, like rejecting applicants with little explanation when their documents were suspect. But three lawsuits brought in Florida, Texas and California over the last two years forced the agency to follow the broader standards mandated by Congress.
The burden-of-proof issue arose again earlier this year when the House of Representatives approved legislation that would have made any person who could prove Soviet citizenship eligible for political refugee status.
A legislator with a powerful role on immigration policy, Senator Alan K. Simpson, Republican of Wyoming, eliminated the provision because of concerns raised by the farm worker amnesty program, an aide said. Mr. Simpson, who is on the Senate Judiciary Subcommittee on Immigration and Refugee Affairs, substituted a series of specific circumstances that had to be met for a Soviet citizen to be considered a refugee, like denial of a particular job because of religious beliefs.
Immigration experts believe that the agricultural amnesty program will probably color policy debates over other categories of aliens whose qualifications will be difficult to document, like the anti-Sandinista rebels of Nicaragua.
``One certain product'' of the agricultural amnesty program, Representative Schumer said, ``is that in developing immigration policies in the future, Congress will be much more wary of the potential for fraud and will do more to stop it.''
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