Comprehensive Immigration Reform Act Of 2007

Floor Speech

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2007 -- (Senate - June 06, 2007)

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Mr. CORNYN. Mr. President, I yield myself up to 10 minutes.

Mr. President, this amendment we will vote on this morning is an important amendment. It was first filed 2 full weeks ago, and it has taken this long to be able to get a vote on this amendment, for which I am grateful, but I must say that, as the Republican leader indicated this morning, the rate of progress with getting amendments debated and voted on is not promising. And the fact that the majority leader has now filed cloture, potentially cutting off the opportunity for full and fair debate and an adequate number of votes on this bill, again, is not encouraging at all.

I am one of those who would like to see a solution to this problem, but I think it is important that we reflect on what kind of solution we will accomplish if we are successful. To me, the goal is simply to restore law and order to our immigration system. It is important to our national security because we have to know who is coming into our country and why people are here in a post-9/11 world. It is important to public safety because we know the same broken borders that can allow people who are economic migrants to come across can also allow common criminals, drug traffickers, and even terrorists. And it is important to our prosperity in this Nation that we reestablish our heritage as a nation that believes in the rule of law. We simply cannot have people choosing to obey some laws and disobeying others. That is not adherence to the rule of law. That is picking and choosing, cherry-picking what laws you find convenient and what laws you find inconvenient.

To my mind, and based upon my experience with my constituents across the State of Texas last week, this is the cause for so much distrust of the Federal Government when it comes to this issue. The basic objection to this underlying bill is not that people don't believe there is a serious problem, it is not that people are racist or anti-immigrant or nativists or know-nothings or any of the other names that sometimes people are called. It is that the American people believe we have been here before.

In 1986, they gave their trust to the Federal Government to actually fix this problem by granting a one-time amnesty and then providing for an enforcement system that would actually be enforced against employers who hire people who cannot legally work here. They were sold a bill of goods. It didn't work. We got an amnesty, and we got no enforcement. That is why people are so distrustful.

So if we are serious about restoring the rule of law, I believe the first place to start would be by passing this amendment, amendment No. 1184, on the floor of the Senate.

What does this amendment do?

Well, first of all, this amendment would mandate that gang members cannot obtain legal status. It is well documented that members of MS-13 and other gangs, ultra-violet gangs emanating from Central America, have come across our broken borders and committed terrible crimes of violence in the United States. In the underlying bill, the Secretary of Homeland Security could actually grant a waiver that would allow a gang member legal status.

That just cannot be. Congress should draw a line about whom we are willing to allow in and whom we are not, and we shouldn't delegate this to the Secretary of the Department of Homeland Security or the Attorney General or anyone who might hold those positions in the future.

The next thing my amendment would do is it would address the definition of ``good moral character.'' We would allow only people with good moral character, as defined in the bill, to obtain legal status. The underlying bill does not contain a prohibition on those who are affiliated with terrorist organizations. My amendment makes the commonsense change that would bar them. The amendment also requires that those who apply for legalization under the bill must generally show they have good moral character.

Third, my amendment makes the failure of sex offenders to register in high-speed flight crimes grounds of ineligibility for Z visas.

Fourth, my amendment makes repeat DWIs, driving while intoxicated or driving under the influence, an aggravated felony. It is a simple fact of life that repeat DWI offenders are a substantial threat to a community's safety.

They have a proven history of involvement in various serious collisions that kill, maim, and otherwise seriously injure innocent people.

When I was in Texas this last week, I met with representatives of Mothers Against Drunk Driving and told them about the gaps in this underlying bill and received the assurance, at least of that representative, that this was an issue she cared passionately about. I suggest all of us who care passionately about public safety and decreasing the incidence of drunk driving and driving under the influence, that are a threat to public safety, that those who care about decreasing that threat should vote for this amendment. Designating a third DUI offense as an aggravated felony recognizes the acute danger that repeat DUI offenders present to the American people and the strong need to remove from the United States those who repeatedly commit DUI offenses.

The fifth category is the one on which I believe there is the biggest disagreement. This has to do with so-called absconders and identity thieves. This gets to the essence of this bill and whether we are serious about restoring the rule of law to our immigration system and whether we are going to send a message, loudly and clearly, that while we might be willing to consider those who have entered our country without a visa, who are by definition guilty of a misdemeanor, or those who have come in legally and who have overstayed, who are guilty of a status violation under our immigration laws--while we might be willing to consider them for a path to legalization and citizenship under some conditions, we should not allow a path to legalization and citizenship for those who have openly defied our courts, the lawful orders of our courts, and who have shown themselves as having no regard for the rule of law.

What kind of citizens can we expect these individuals to be, individuals who have been ordered deported, who have had their day in court and who simply defied that court order by going on the lam and melting into the American landscape, or those who have been ordered deported and who have actually been deported but then who have reentered the country? Both of those, going on the lam after you have been ordered deported and reentering after you have been actually deported, are felonies under section 243 of the Immigration and Naturalization Act--a felony.

If we are serious about restoring respect for the rule of law, then we should, at the very least, prohibit felons and repeat offenders from getting the Z visa or path to legal status, including the opportunity to apply for legal permanent residency and citizenship. We should be willing to draw a bright line there.

I have to say, with all due respect, if we do not adopt this amendment, then we might as well retitle that section of this bill, ``No Felon Left Behind.'' It is clear, whether it is gang members, terrorists, sex offenders or repeat drunk drivers, these people have thumbed their noses at the law. While there is some common ground, and I congratulate Senator Kennedy for moving our way on this issue, it completely omits the category of felons who have shown no regard for our laws and who have shown themselves unwilling to live in peace with Americans in this country. We ought to draw a bright line there. My amendment would do that.

Mr. President, I yield myself 2 additional minutes.

The ACTING PRESIDENT pro tempore. Without objection, the Senator is recognized.

Mr. CORNYN. I know we have a number of colleagues who not only are Members of the Senate but are also running for the highest office in our land, running for the office of President of the United States. I know there have been a number of debates on the Democratic side and Republican side. I believe this amendment and the vote on this amendment is a defining issue for those who seek the highest office in the land, for them to demonstrate their respect for the rule of law and to demonstrate their desire to return law and order to our immigration system. A ``no'' vote on the Cornyn amendment will demonstrate that we are not serious, that we do not believe the rule of law deserves respect because, unfortunately, under the Kennedy amendment, the alternative is literally a figleaf that has been offered to give people the sense they voted for something so they will have an explanation, even knowing they have not voted to exclude these felons. A failure to vote yes on the Cornyn amendment will indicate we are not serious about restoring the rule of law through our immigration system and will indicate we are willing to allow felons and people who have no desire, based on their experience, to comply with our laws and live in peace in this country, to become part of America. I think we need to send a loud and clear message as to where that line should be drawn.

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Mr. CORNYN. Mr. President, I will be glad to try to answer the question. Similar to a lot of hypotheticals, it has a lot of twists and turns. Let me give it a try.

Under this amendment, people who entered the country illegally and who are guilty of illegal entry, or who come in legally and overstay, would not be rendered ineligible, not under the Cornyn amendment. Those who are repeat offenders--in other words, people who have entered illegally, then exited the country and reentered; exited, reentered--are guilty of a more serious offense because they are multiple offenders.

I am not sure, under the hypothetical the Senator asked, whether this individual would be barred. But people who are serial offenders and violators of our immigration laws would be barred under this amendment.

Mr. DURBIN. So if I might ask the Senator from Texas: The Senator from Texas would suggest, then, that this mother of four citizens, married to a citizen of the United States, who has lived here for more than 10 years, should be deported?

Mr. CORNYN. What my amendment would do would not order her deported. What it would do is say she is ineligible for a Z visa.

Mr. DURBIN. I ask the Senator from Texas--let's get down to the reality of the situation. As far as this family is concerned, where the mother has gone through the experience I described, you would say that family has to either break up or leave?

Mr. CORNYN. Mr. President, I disagree with the characterization of the Senator from Illinois. As this hypothetical individual is married to a U.S. citizen, she could get a waiver on that ground because she is married to a U.S. citizen. She would not, under existing law--she could get a waiver and would not be deported necessarily.

Mr. DURBIN. If I might ask one last question, is that a provision in your amendment? Or is that in the underlying bill?

Mr. CORNYN. In response to the question, that is a provision of current law that my amendment does not touch.

Mr. DURBIN. I thank the Senator from Texas.

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Mr. KENNEDY. I am trying to get some information to the Senators who will follow along. Does the Senator plan to use the remainder of his time? I am not trying to hurry him; it is only for information purposes.

Mr. CORNYN. Madam President, I agree it is a good idea to try to give our colleagues notice as to when a vote will occur. I am happy to agree we can have the vote at 11:45. I probably will not use all of my time, but it depends on how wound up I get.

Mr. KENNEDY. Why don't we sort of move along but indicate to our colleagues that we are reaching a conclusion and we expect votes fairly soon. Then we will have follow-on amendments with Senator DeMint and, hopefully, Senator Bingaman. If we can work those out in the next 20 minutes or so, we can get stacked votes; otherwise, we plan to have these two votes reasonably soon.

The PRESIDING OFFICER. For the information of Senators, the vote will occur at approximately 11:55 if some time is not yielded back.

The Senator from Texas is recognized.

Mr. CORNYN. Madam President, we have a number of speakers who have commented. I appreciate the wise comments of the Senator from Pennsylvania, and I am not talking about the part where he was complimentary of me; I am talking about his comments on the process and the difficulty, since this bill came to the floor without going through committee, of providing an adequate opportunity for debate and amendments. We have all tried to work our way through this.

I do concur it is a terrible mistake in judgment to seek to close off debate on this bill before an adequate opportunity for votes occurs. We have had, by my count--and I could be off one or two--nine rollcall votes on this bill. By way of comparison, when the McCain-Kennedy bill, which later became the Hagel-Martinez bill, was on the floor last year, we had 32 rollcall votes, I believe. We need to have an adequate opportunity to flesh this out. As we have seen here, some of these details get very technical, but they have a profound consequence in terms of the outcome.

Let me speak to some of the specific items that have been raised here. As we pointed out, first, there will be a vote on the Kennedy amendment, and then there will be a vote on the Cornyn amendment. With all due respect, I call the first one a watered-down version of the second one. I will point out the differences now, in part.

The Kennedy amendment would still allow waivers to allow members of gangs to become legalized under the provisions of this bill. The Kennedy bill would still allow sex offenders to not be barred if they were sentenced to less than 6 months. The Kennedy bill would still allow waivers for firearms offenses; that is, allow people who have been convicted of firearms offenses to get a waiver and to be allowed legal status.

My amendment covers those who are associated with terrorist organizations. Those innocents referred to under the material support provisions are covered by a waiver executed by the Department of State and Department of Homeland Security.

As we can see, this gets exceedingly technical. Let me focus on sex offenders, by way of example, to point out why these differences are important. My amendment would bar those who have failed to register as sex offenders from becoming eligible for a Z visa and legal permanent residency status and a path to American citizenship. We have spoken in Congress on this issue through such legislation as the Adam Walsh Act. We have made it clear we will monitor and lock up those sex offenders who don't follow the rules and bar sex offenders from bringing individuals into the country whom they may also harm.

Yet the amendment offered by the distinguished Senator from Massachusetts, Senator Kennedy, would still give those sex offenders who fail to register a loophole to exploit if they can plea bargain their case to less than 6 months. The maximum penalty for the underlying offense is no more than 1 year. All of us who have had experience in the legal system, particularly with the criminal law system, understand plea bargains are a way of life and it may well be a very serious sex offender will have plea bargained an indictment against him or her to less than 6 months, and still be allowed entry into the United States under the Kennedy amendment.

Here is what the Kennedy amendment does. On page 20 of the amendment, it modifies the exceptions to the criminal bars admissibility by adding failure to register as a sex offender and firearm offenses to the list of offenses excepted from the criminal bars to accessibility.

Why would we allow this loophole? We just got this amendment last night, of course. We have not been able to survey the sex offender registry laws of all 50 States. We know there is at least one State--New York--where first-time failure to register a conviction is a class A misdemeanor, punishable by up to 1 year.

My simple question is: Why would we want to employ a loophole for sex offenders and allow them to gain the benefits under this bill by being eligible for a Z visa, with a path to legal permanent residency, potentially, and American citizenship?

My amendment makes clear--unlike the Kennedy amendment--that all these loopholes are closed and this is not possible. I cannot imagine that the American people would feel, among the many other people who are arguably worthy of gaining benefits under this bill, we would want to demean what we are doing here by providing these benefits to people who so clearly have shown themselves unworthy of getting those benefits.

I will point out that I know we have had a big debate in this country and in the Senate about what constitutes amnesty. I think the problem is the American people--many of them--don't feel we are serious about restoring the rule of law when it comes to our broken immigration system. I don't mean for a minute to impugn the good faith of Senators who have labored long and hard to try to bring this bill to the floor, and those of us who are trying to improve it, to make it better. But by way of example, these are the sorts of offenses that ordinarily would be punishable under our laws but which are completely ignored when it comes to applicants for a Z visa--and that is the 12 million or so who are here--who have committed these acts.

Anyone who has entered the country without being inspected or admitted; that is, who came across the border before January 1, 2007, this bill would make eligible for a Z visa.

Any alien who failed to show up for his or her removal proceeding without just cause would be eligible for legal status under this bill.

Any alien; that is, any noncitizen, who, through fraud or willful misrepresentation, got a visa or other document or admitted to the United States would be eligible for a Z visa.

Any individual who makes a false claim to U.S. citizenship--this is an independent offense against our criminal laws--would be eligible for a Z visa.

Any noncitizen who was a stowaway who made their way into the United States, anyone who is the subject of a civil penalty for document fraud would be eligible under this bill for legalization and a Z visa.

Any alien who, when trying to enter the country, did not have the proper documents, visa, passport, border-crossing card, et cetera; any alien who remained unlawfully in the United States for less than a year, left the United States before removal, and then tried to reenter in a 3-year period would be eligible for a Z visa under this bill, or was in the United States unlawfully continuously for more than a year, then tried to reenter the United States within 10 years after leaving or being removed from the United States. It gets a little convoluted, but that person would be eligible for a Z visa or legalization and potentially a path to legal permanent residency and American citizenship.

Under this bill, any alien who, after previously violating immigration laws, for example, crossed the border multiple times and remained unlawfully in the United States for an aggregate of a year or more under this bill would be eligible for legalization under a Z visa, potentially eligible for legal permanent residency and American citizenship.

Any alien who came with another alien who is not admissible to the United States who is certified as helpless due to sickness, disease, and disability and requires the protection or guardianship of an alien. That is one more example of the kind of offenses which ordinarily we would punish under our laws which are waived and not considered when it comes to eligibility of the Z visa.

I don't think it is particularly productive on the floor of the Senate to talk about what is amnesty and what is not, but let me talk about the more basic consideration and one reason I think my constituents in Texas have expressed such strong concerns about it. It is really exemplified in the debate we are having on the Cornyn and Kennedy amendments. Are we serious about restoring respect for the law or are we going to simply turn a blind eye to violations in the future?

What we are being told by the proponents of this bill--and I believe they in good faith believe this, but it is unfortunate that the bill language itself does not appear to bear out that optimism and hope when it comes to the enforceability--is that this is, as in 1986, the last time we are going to do this. If we deal with the 12 million people who have come into the country without a visa or who have entered legally and who have overstayed their visa, if we give them an opportunity to get a Z visa, this is it, last time, it will never happen again. That sounds ominously similar to what the American people were told in 1986 when there were 3 million people in that category. Now we have 12 million in that category.

So the question people have, logically--these are not racists, these are not bigots, they are not nativists, they are not anti-immigrants; these are American citizens who are concerned about their country and about being a country that respects the rule of law--they want to know: Is this going to work? Will it be enforced? Are we serious about restoring the rule of law to our country?

I have to say that the sort of fine and requirement that is being required with the Z visa is looked at with great skepticism. Last week, I had a constituent who said: Well, Senator, are you telling me that we are going to allow people who have not respected our immigration laws to pay $5,000, in effect, to buy legal status and then potentially apply for legal permanent residency and then become an American citizen? Who wouldn't go for that kind of deal? That caused me a lot of concern because I, frankly, had not thought about it in those terms.

But what causes me even greater concern is the concept that is missing from this legislation that is so important; that is, when it comes to our laws, we believe in the role of deterrence. In other words, when we provide a penalty to somebody for violating the law, one of the considerations is, will it deter people from acting in a similar capacity in the future?

I am afraid, when I look at this legislation, it completely omits any consideration of what will deter people from violating our immigration laws in the future. In fact, I am afraid what happens, as pointed out by my constituent, is that it is really viewed as an incentive. If all you have to do is to get into the country any way you can and then wait for the next bill to pass Congress which will allow you to pay a fine and then become legally here and on a path to legal permanent residency and citizenship, that is no deterrent. That is a powerful magnet which will continue to attract people to our country.

I say this not in any spirit except to say we have to find a way to fix this. I have been one who wants to try to fix this legislation. The amendments I have offered are in that spirit. But I have to say that we are going to continue to be viewed as nonserious about workability, about enforcement, about restoring respect for the rule of law unless we vote to exclude those who have shown nothing but defiance for our laws by absconding, by going underground even after having their day in court and refusing an order of deportation, or those who have been deported following a day in court, following all the rights our country provides for judicial review and administrative review and who simply left to only reenter again illegally.

As I mentioned at the outset, the Immigration and Naturalization Act makes both those categories of individuals felons--felons. This is not a misdemeanor. This is not an inadvertency. These are not people, frankly, who are entitled to the generosity of the American people when it comes to dealing with their legal status. These are people who showed they have nothing but contempt for our laws, for restoring the rule of law, and I just cannot imagine why any Member of the Senate would vote to give these individuals a path to legal residence and a path to potentially American citizenship.

If we are going to regain that lost credibility--and I think this is really where the rubber meets the road because, frankly, people across this country don't really believe we are serious about making this work. They are used to a history of being overpromised and undersold when it comes to fixing our broken immigration system. But I believe there is going to be a high price to pay for those of us who are still around in the coming years if, in fact, we pass this law knowing that it has these huge, gaping loopholes that excuse unlawful conduct, which is basically thumbing their noses at the rule of law. If we are not serious about making sure people who go through background checks are actually not criminals or terrorists, if we are not serious about making this work, there is going to be a high price to pay for those who support this legislation only in the coming years to find that it was another scam pulled on the American people.

That is why it is so absolutely critical that we continue this debate, and I implore the majority leader to allow us to continue the debate, to allow us to have amendments offered. I understand and we all understand in this country that you win some and you lose some, majorities rule, but that is what we ought to be doing on this bill to make it as good as we possibly can to try to regain the respect and the trust of the American people because, frankly, we don't have it now. That is the reason for the outcry we have heard in my State and around the country when it comes to this legislation.

We can fix it. I am an optimist, but we cannot fix it if there is not an opportunity for a full and fair debate and if the majority leader is determined to cut off the opportunity to provide votes on amendments and is going to insist on ``my way or the highway''; in other words, you are either going to have to agree to not let your amendments be heard and to let this bill go to a final vote or the majority leader is going to pull it down and deny us the opportunity to fix this problem.

I don't know anyone in the Senate who doesn't want to fix this problem. It is enormously complicated because this problem has festered for 20 years or more without a solution. That is no excuse for not trying, and that is why I have tried, along with my colleagues, to come up with an acceptable solution. I would say 90 percent of it we agree with. There is no light separating us. It is in the 10 percent we talked about that is the subject of important amendments which need to be heard and voted on where we can regain that trust.

Let me say in conclusion--and I may reserve a little bit of time--let me say before I sit down, Mr. President, that a ``no'' vote on the Cornyn amendment and a ``yes'' vote on the Kennedy amendment will, in essence, could retitle this section of this bill ``No Felon Left Behind'' because while we have excluded many categories of felons, we have, for some reason, left this big, gaping hole when it comes to those who show nothing but contempt for our laws. We need to fix this bill, we need to make it better, not make it worse, and we have an uphill climb to regain credibility of the American people to show we are serious and we want to restore our reputation as a nation that believes in the rule of law. A ``no'' vote on the Cornyn amendment will do nothing to help it; indeed, I think it will confirm the worst suspicions of the American people--that we really are not serious about fixing this problem.

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Mr. CORNYN. Mr. President, let me assure my colleague, Senator Kennedy, that only those who have actually been convicted of document fraud would be excluded under my amendment.

According to recent statistics, roughly 10 million Americans fell victim to identity theft last year, at an estimated cost of $50 billion to U.S. taxpayers, and victims spent an average of $1,500 and 175 hours to actually recover their good name and their good credit after identity theft. This is not a trivial matter, and it is only people who have actually been convicted, not those who have presented false documents to work in the country who have not been convicted.

As far as the woman with four American children and married to an American spouse, my amendment does not touch her rights under current law. For example, we don't touch current law waivers for consent to reapply for admission. We don't touch the Secretary's ability to grant humanitarian parole. And we don't touch the waivers under current law that cover an immigrant who is the spouse of a U.S. citizen.

I thought Mr. Durbin, the Senator from Illinois, was satisfied with that answer earlier, but I point that out to my colleagues just so they can be satisfied that there are exceptions for extraordinary circumstances.

What this amendment does is it broadly says felons will not be given the benefits of legalization and a path to American citizenship. They have had their chance, they blew their chance, and they have shown themselves unworthy of the trust and confidence of the American people when it comes to living among us in compliance with our laws and respecting the fact that, yes, we are a nation of immigrants, and proudly so, but we are also a nation of laws. Those laws keep us safe, they keep us secure, and they assure our prosperity, and the prosperity of generations yet to come. We cannot, once again, turn a blind eye to the laws that protect all of us, including those immigrants who have come here to become part of our great country and to seek opportunity for their future.

I hope my colleagues will support the Cornyn amendment, that they will vote against the Kennedy amendment as a dilution and watered-down figleaf of the Cornyn amendment.

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Mr. CORNYN. Mr. President, I would ask my colleagues for a ``yea'' vote on this amendment. If you voted for the Kennedy amendment, you made an incremental improvement over the current law when it comes to banning criminals from getting the benefit of our immigration system. But in order to exclude felons, people who have shown their contempt and defiance of American law, and unless it is your intent to reward felons who have shown their contempt for the American legal system, to reward them with the most precious gift this country can offer, which is legal status, potentially legal permanent residency and a path to citizenship, you should vote yes on this amendment. I would urge my colleagues to do so.

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Mr. CORNYN. Mr. President, with all due respect, the Senator should read the amendment. It does not affect people who have committed identity theft unless they have actually been convicted of that. It would have no effect on people who have entered without a visa or who have come in on a legal visa and overstayed. This is no gutting of the bill; it is only to protect the American people from felons.

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Mr. CORNYN. Mr. President, I have an amendment that is scheduled for a vote later on this evening, and I would like to spend a few minutes explaining it. This is--well, let me put it this way: If the definition of insanity is doing the same thing over and over and over again and expecting a different outcome, the provisions in the underlying bill that my amendment will correct represents insanity in action because it repeats a mistake made in the 1986 immigration laws that is within our power to correct. I believe the amendment I am offering will allow that correction to take place, and I offer it in that spirit.

At the very least, the American people expect we will not intentionally repeat mistakes. They don't expect us to be perfect. They do expect us to do our best, and we owe them that much. But in this case, doing our best means not repeating a mistake.

Quite simply, the Department of Homeland Security is, under the current bill, prohibited from using internally all information from Z visa applications, as well as sharing information with the relevant law enforcement agencies. That is right. You can actually apply for a Z visa if you are 1 of the 12 million or so people here in the country already in violation of our immigration laws, whether it is entering without a visa or once having entered with a visa, overstaying that visa, and if you are seeking the benefits of this underlying bill which are mainly represented in the form of a Z visa, the information contained in that application by those 12 million individuals is effectively shielded from law enforcement authorities. For example, if an applicant comes forward and is denied a Z visa, this legislation currently pending prohibits the Immigration and Customs Enforcement Service from using that information in order to apprehend that person who is not legally present in the country.

What we learned about the 1986 amnesty was that the New York Times said it created the largest immigration fraud in the history of the United States. That same view is shared by the general counsel of the Immigration and Naturalization Service under President Clinton with regard to statutory restrictions on sharing and using information. That general counsel, Paul Virtue, noted that this prohibition greatly contributed to this fraud.

At this point, I ask unanimous consent that the New York Times article be printed in the Recored and I refer my colleagues to the testimony of Paul Virtue before the House Immigration and Claims Subcommittee of the House Judiciary Committee at judiciary house.gov/judiciary/106-52.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. CORNYN. In addition to questions of why we would want to put out of bounds to law enforcement agencies information which they could use to investigate and identify fraud and criminal conduct, you might ask: Why the double standard? For example, we don't afford these kinds of robust confidentiality provisions for other classes of immigrants such as asylees or battered women or those who fall under the temporary protected status provisions. So why would we have a double standard? When an asylum seeker applies for legal status, that asylum seeker must submit an application and return at a later date for the decision. If that asylum seeker's application is denied, then he or she is taken into custody on the spot, based on information contained in the application.

Now, the proponents of this bill will tell us that without these guarantees of confidentiality, those who are already here in the country in violation of our immigration laws will not come forward and seek the benefits of the Z visa provided for under the bill, which leads me to ask: Aren't we granting the biggest benefit that can ever be given to anybody in the world--legal status and a path to American citizenship--even though these individuals have violated our laws?

And to be clear, we are talking about those who cannot even establish that they meet the minimum requirements to get this valuable benefit. Even worse, they have continually flouted our immigration and criminal laws. Why would we consciously give these individuals broad privacy protections by the mere filing of their application for Z status, and why would they be treated differently from other immigrants?

The proponents say they do exempt from confidentiality those who commit fraud or are a part of some other scheme in connection with their application. Of course, that is the very least we should do. But this bill does not go nearly far enough to effectively enforce our immigration laws and protect the American people from those who could and would and might do us harm.

For example, on page 311 of the bill, in section 604(b) labeled ``Exceptions to Confidentiality,'' the drafters of this bill have chosen to protect aliens who are criminal absconders who have not been removed from the United States; that is, people who are under orders of deportation but who have not yet been removed. This is, in fact, a felony offense under 8 U.S.C. 1253, which is punishable for up to 4 years in prison. Yet the underlying bill would provide confidentiality for that individual.

We all know that hundreds of thousands of individuals come across our borders each year in violation of our immigration laws. But what most Americans would be shocked to realize is that, according to recent estimates, almost 700,000 aliens who have immigrated illegally or overstayed who have been ordered deported have simply failed to comply with that court order. How many Americans think that it is OK to ignore a court order? How many Americans, after receiving a subpoena from a court, ignore it and simply skip that court date?

Let me give two examples of what I am talking about. In section 604(b), the drafters claim they allow law enforcement to go after information for those denied Z status because of felonies and serious criminal offenses, but what is missing are those aliens who have actually committed those felony offenses but who have not yet been actually convicted. In section 604, the drafters further claim they resolve the problem by allowing law enforcement access to those who commit fraud or misrepresentations in their Z applications. But again, what is missing is law enforcement's ability to reach third-party fraud: Where the alien, him or herself may not be complicit but to prosecute the third party, the Government needs the information from the Z application filed by such individuals in order to make the case. Simply stated and summarized, fraud by third parties involved in a Z application; crimes that have not yet resulted in a conviction; absconders--people who have ignored a valid court order and who have yet to be physically removed--as well as those Z visa applicants who are denied on noncriminal grounds, all of those categories of information are rendered confidential and kept from law enforcement authorities when it comes to investigating crime and other wrongful conduct.

As I said earlier today, in fact, if we were more interested in regaining the public's confidence that we were actually serious about passing an immigration law that could be and would be vigorously enforced, I don't think I would be up here offering this amendment because it would be agreed to without the necessity of a vote. But strangely, to me, this commonsense sort of amendment is being resisted. In a way, it helps merely confirm what most people across the country--particularly in my State--seem to suspect, which is that Congress cannot be trusted and is not serious about creating an immigration law system that can be adequately enforced.

As my colleagues know, I offered a separate amendment that would categorically bar fugitive aliens from receiving the benefits under this bill. I believe this is an issue of fundamental fairness and integrity of the system. In exchange for what has been offered to this population, which is the largest legalization program in our Nation's history, we should be able to say that for any person who applies for and receives benefits under this program, we will authorize the Immigration and Customs Enforcement Service to look at that application and to, if necessary, if warranted under law, arrest that individual who made that application and deport them, in accordance with our laws that Congress has already passed.

But the bill the Senate is considering today turns a blind eye to those who apply for the benefits under this bill and are denied. This bill would allow them simply to slide back into the shadows--the precise problem we are being told we are trying to fix.

I daresay if you ask a random taxpayer on the street this simple question: Assume an alien comes forward to apply for legal status under this bill. Because the applicant doesn't satisfy one of the criteria for being awarded legal status, the applicant is denied benefits under the bill. What happens to that individual under the Senate immigration bill? If you were to ask that question to a man or woman on the street, I bet you that 100 out of 100 times people would say: Well, they ought to go home, they ought not to be granted benefits under the bill. Certainly, they would say you ought not to hide evidence of fraud or criminality or wrongdoing that could be investigated and prosecuted.

Yet the so-called confidentiality provisions my amendment addresses, under the current bill, would prevent law enforcement officials from using information on the application to locate and remove a significant population of those who don't qualify for legalization but have applied for it.

To be clear, this is for individuals who have actually applied for a Z visa, or benefits under the program, and have been denied, not those whose Z visa status has been granted.

This is, in essence, providing an opportunity--to significant categories of individuals whose applications are considered and rejected--to slide back into the shadows, which is the very problem we are told this solution is designed to solve.

The whole point of this exercise, we continue to be told, is to enhance U.S. security by bringing people out of the shadows. But this bill would draw people out, only to allow them to slide back in if they demonstrate they are disqualified for the benefits under the bill--the very people we ought to be focusing on and having deported in accordance with our laws.

I remind my colleagues of our Nation's recent history with mass legalization and the consequences of prohibitions on Federal agencies sharing information.

As I have stated, reasonable observers have concluded that the 1986 amnesty was rife with fraud. That is the conclusion of the New York Times in the article that will be part of this record, dated November 12, 1989. The title is ``Migrants' False Claims: Fraud on a Huge Scale.''

We also note, for example, from the 9/11 Commission staff statements, that Mohamed and Mahmud Abouhalima, conspirators in the 1993 World Trade Center bombing, were granted green cards, or legal permanent resident status, under the Special Agricultural Workers Program, which was an amnesty program created by the 1986 bill.

Under this Special Agricultural Workers Program, a key component of the 1986 amnesty, these applicants had to provide evidence they had worked on perishable crops for at least 90 days between May 1, 1985, and May 1, 1986; their residence did not have to be ``continuous'' or ``unlawful.'' Nearly 1 million illegal aliens received legal permanent resident status under this amnesty--``twice the number of foreigners normally employed in agriculture'' at that time, according to the 9/11 Commission staff statements.

In other words, the inference is inescapable that there was fraud on a huge scale, based on the very kind of confidentiality provisions this bill includes and which my amendment would remove.

I wish to make one other point about this ill-conceived confidentiality provision. Under this bill we are considering, Congress would even prohibit the use of information from sworn third-party affidavits that are one of the documents that can prove eligibility. Who could not, with a little bit of creativity and initiative, get some third party to provide an affidavit that says: Yes, you were present on June 1, 2007; thus, you are eligible for the benefits under this program.

If you designed a program to welcome and invite and embrace fraud more, I cannot imagine what it would be. Yet that very same sort of affidavit could be rendered confidential and could not be shared with law enforcement personnel, unless my amendment is passed.

We already know from well-documented prosecutions of document vendors and other legalization cases that the type of documents submitted--especially sworn affidavits from third parties, not even relatives--no qualification, just third parties--have been used routinely to further fraud.

At the very least, we should not repeat the mistakes of 1986 by allowing the continued use of sworn affidavits by applicants to establish eligibility for the Z visa. My amendment takes care of these concerns.

We know one thing: Criminals and terrorists have abused--and will continue to seek ways to abuse--our immigration system in order to enter and remain in this country.

I regret this bill we are debating fails to give law enforcement the commonsense tools they need in order to prevent terrorists and others from exploiting the vulnerabilities inherent in any massive legalization.

My colleagues may tell you there is a confidentiality exception for national security and for fraud. But to rely solely on these exceptions is simply wishful thinking; it is not going to happen. It doesn't go nearly far enough to reach the kinds of fraud and criminal conduct and other wrongful conduct I have mentioned.

This kind of information law enforcement needs may provide valuable leads of which they were previously unaware. Failure to allow law enforcement to connect the dots is a deadly mistake I have heard my colleagues promise they would ``never allow to happen again.'' So I urge those who are truly serious about the commitment to make sure this kind of fraud and the danger associated with it doesn't ever happen again to support my amendment and make a crucial improvement to this legislation.

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Mr. CORNYN. Madam President, I rise to speak in favor of my earlier amendment which would take the blinders off law enforcement personnel when it comes to investigating fraud and other wrongful and even criminal conduct on the part of those who are claiming an advantage under this legislation, as well as third parties who might be implicated in fraud or other criminality.

I would first like to respond to Senator Kennedy's comments, and then I want to speak to the Menendez amendment briefly. Senator Kennedy earlier claimed my amendment eliminated all kinds of protections of confidentiality. He said he provided a level of protection of confidentiality for individuals so it will encourage them to come forward and file their applications for Z visas, and he is worried if we allow law enforcement access to that information to investigate third party fraud or other criminality, the applicants for the Z visas will not be willing to come forward.

It should be noted that my amendment does not eliminate all protections. It simply ensures law enforcement has access to information for those who cannot qualify for Z status under the terms of the underlying bill, including those who are criminals and absconders who have reflected their prior disregard for our laws. Also, despite Senator Kennedy's claim, their proposal still protects information for aliens who have committed crimes but have not been convicted and are denied Z status. My amendment would make that information available to law enforcement personnel in the discharge of their official duties.

Furthermore, the distinguished Senator from Massachusetts acknowledges there was fraud in sworn affidavits and claims.

He said he is now alluding to the 1986 fraud under the agricultural amnesty bill that I mentioned in my earlier remarks and which were the subject of a New York Times article dated November 12, 1989. He said we took action in this legislation to fix it.

First, let me express my appreciation to the Senator for acknowledging that the third party affidavits that were used to qualify for benefits in 1986 were a large source of fraud.

I see nothing in the bill that would ensure that fraudulent sworn affidavits, especially those provided by third parties, are accessible to law enforcement to prosecute the fraud.

This type of fraud remains protected and thus we haven't come very far from the problems we encountered in the 1986 amnesty.

Senator Kennedy says we must guarantee confidentiality.

He said:

If we expect individuals to participate in that system, we have to guarantee their confidentiality. It's enormously important. This system isn't going to function and work unless we do.

What my esteemed colleague is essentially saying is, we need to protect those who have violated our laws, even committed felonies and other crimes for which they have not yet been convicted, because they would not come out of the shadows and register.

The point is, it is more than just coming out of the shadows. It is giving legal status to a person who has arguably violated our laws and put them on a path to citizenship, denying law enforcement the opportunity to investigate and to prosecute where appropriate.

Further, we are essentially binding the hands of law enforcement because even if they wanted to prosecute these individuals and remove them from the country, they couldn't get the evidence needed to make the case, nor could they remove the person because by merely applying for Z status, they get the protection from removal.

Is that really what we want to say to our country about who should be permitted to remain in the United States? I think not. Nothing in my amendment would affect the ability of those who have entered the country in violation of our immigration laws or who have simply overstayed their visa or even those who have produced false documents in order to gain access to work. My amendment would not even address any of those individuals. This present amendment would not do that.

But, surely, we want to remove the cloak of confidentiality, the blinders, from our law enforcement personnel that would allow them to investigate cases of fraud, wrongful conduct, and other criminality.

I remain flabbergasted that the proponents of this bill would embrace this sort of provision. I would think what they would want to do is restore public confidence that we are actually reestablishing the rule of law when it comes to this broken immigration system. If anything, this serves to confirm the worst fears of skeptics about this bill because, frankly, it does nothing but confirm their worst fears that this is a vehicle for perpetuating the same sort of mistakes we encountered in the 1986 legislation, but apparently those lessons were not learned.

AMENDMENT NO. 1194

I want to speak briefly about the amendment offered by Senator Menendez while he is on the Senate floor regarding those who want to immigrate to our country, but particularly those who have respected our laws and who have waited patiently in line.

I am particularly troubled by the situation that his amendment is designed to remedy because the proponents of the underlying bill have said: We are not going to allow any line jumping. We are going to provide an opportunity for those who have violated the law to get right with the law, but we are not going to do so to the detriment of people who have followed the rules and waited patiently in line, expecting that their application for a visa or legal permanent residency would be acted on. As I said before the recess, this is a very important principle to me. It is a matter of fundamental fairness and crucial to the integrity of not only our immigration system but our entire legal system. It would be extremely unfair to allow someone who has not respected our laws to be able to obtain a green card before someone who has respected our laws and waited in line for a chance to enter the country legally.

I am not talking about the claim that those who wait in line legally have to do it in their home country while someone who is here illegally and obtains a Z card can wait in country. That certainly is an issue. Those who are here illegally are getting the advantage over and above those who have made the decision to obey our laws waiting patiently outside the country. Even Secretary Chertoff, a key negotiator of the compromise, admits in a USA Today article that there is a ``fundamental unfairness'' anytime illegal immigrants are permitted to stay in country, while those who have respected our laws wait patiently outside of the country. I am afraid we make what even Secretary Chertoff admits is a ``fundamental unfairness'' that much more unfair in the underlying bill. To their credit, proponents of this compromise have stated that the proposal would not allow anyone who came here illegally to obtain their green card until everyone who chose to follow the law gets their green card. That is a laudable goal, and that should be our goal. But to achieve this goal, the compromise arbitrarily sets the cutoff date for legally ``being in line'' at May 1, 2005, while setting the date for the end of the line for those illegally here at January 1, 2007.

As an illustration, this means someone who chose to respect our immigration laws, chose not to enter illegally, and filed the proper immigration paperwork on June 1, 2005, is not considered to be ``in line'' under the terms of this bill, while someone who decided not to respect the laws and enter illegally on the same date can obtain a Z status and ultimately secure American citizenship.

My staff has met with a number of groups who have focused on this particular problem. I know Senator Menendez has been listening to their same concerns. The Asian American Justice Center in particular has made compelling arguments that declaring the end of the line for legal immigration as May 1, 2005, is unfair. Other groups, including the Interfaith Immigration Coalition, the Jewish Council for Public Affairs, the U.S. Conference of Bishops, the Mexican American Legal Defense and Education Fund have written to my office to explain that those people who played by the rules and applied after May 1, 2005, will not be cleared as part of the family backlog pursuant to the terms of the bill and will lose their chance to immigrate under current rules and be placed in line behind Z visa applicants. Some of these groups report that more than 800,000 people who have patiently waited in line will in essence be kicked out of the line.

I understand the Menendez amendment will be voted on soon. It addresses an important issue, ensuring that those who decided to abide by the laws will not be disadvantaged simply because they chose not to come here illegally.

As I said, I have been struggling with this over the past couple weeks because this is a matter of fundamental fairness. So I continue to consider this amendment. I know others are likewise considering it.

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Mr. CORNYN. Madam President, I understand we have 2 minutes equally divided before the vote.

Simply stated for my colleagues, my amendment would remove the blinders that would prevent law enforcement from investigating and prosecuting wrongful conduct, including fraud and criminality.

I would think if there is one thing we learned from the 1986 amnesty, this type of confidentiality provision, if it protects any information to be gleaned from the applications of those who have actually been denied Z visas, it would be that we should pursue and support this kind of amendment which would help law enforcement and, even more importantly, help restore public confidence that we are not playing games with them but that we are actually serious about restoring the rule of law when it comes to our broken immigration system.

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