Border Security, Economic Opportunity, and Immigration Modernization Act

Floor Speech

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Mr. GRASSLEY. Has the Senator yielded the floor? I don't think I want to speak until I have it.

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Mr. GRASSLEY. Reserving the right to object, Mr. Presiden

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Mr. GRASSLEY. Is there a time limit for me to speak?

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Mr. GRASSLEY. Reserving the right to object, and I probably will have to object, but let me explain first of all that this is a rare moment that Senator Landrieu and I might be on the opposite side of the fence. And maybe when this is all done, we will not be on the opposite side of the fence because 99 percent of the time that she and I have conversations, it is about foster care and adoption and all those things. But let me speak to my reservation.

First of all, we have had this list that she speaks of since at least this morning and maybe even earlier than this morning and we have been going through it. I will give a bottom line, but I want further opportunity to explain.

There is now to the chairman's staff a counteroffer that we have that I would like to have Senator Landrieu and other Senators take a look at. I had an opportunity last night to spend some time speaking with Senator Landrieu about this, trying to get a process in place. I guess that process is in place now. We went through these amendments. But let's say, first of all, when there are noncontroversial amendments presented to us by the majority party, it means they have stated that they are noncontroversial and we go through the list. We may have a different judgment on some of them because it is my conclusion that not all of the 27 so-called noncontroversial amendments are, in fact, noncontroversial. Some of them are in
another committee's jurisdiction, and we always take the leadership of other committees, when they are under other jurisdictions, into consideration.

Normally amendments like this would take place in a managers' amendment that comes near the end of the process because it takes time to go through. We could have 100 amendments on a list that somebody thinks are noncontroversial, so it takes some time to clear.

Despite what has been said, many of these on the list of 27 are not necessarily easy, but we worked on them, we presented an alternative, and I ask for that to be discussed. In the meantime, then, I object.

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Mr. GRASSLEY. Yes.

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Mr. GRASSLEY. The chairman's staff has it, and I ask the Senator to consult the chairman.

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Mr. GRASSLEY. I will not submit that list until after the chairman responds.

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Mr. GRASSLEY. I object.

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Mr. GRASSLEY. Mr. President, I am not going to make a unanimous consent request. I want to speak about a piece of legislation I hope to introduce before we finish the bill on immigration.

This is a Grassley-Kirk amendment numbered 1299, and I am having a difficult time getting it put in place so we can get it brought up. I believe there is a lack of understanding of what my amendment does. I want to take this time to explain it so everyone can fully understand it and get it to a rollcall vote.

I thank Senator Kirk for joining me on this amendment as a cosponsor.

This amendment would address language in the bill that creates a convoluted and ineffective process for determining whether a foreign national in a street gang should be deemed inadmissible or deported. I offered a similar amendment in committee because I believe this to be such a dangerous loophole that requires closing.

My amendment even had the support of two Members of the Group of 8. Specifically, in order to deny entry or remove a gang member, section 3701 of the bill requires the Department of Homeland Security prove a foreign national: one, has a prior Federal felony conviction for drug trafficking or violent crime; two, has knowledge that the gang is continuing to commit crimes; and three, has acted in furtherance of gang activity.

Even if all of these provisions could be proven under the bill, the Secretary could still issue a waiver. That is just one of many opportunities for the Secretary of Homeland Security to forget about what the legislation says. As such, the proposed process is limited only to criminal gang members with prior Federal drug trafficking and Federal violent crime convictions and does not--can you believe this--include State convictions such as rape and murder.

The trick here is that while the bill wants everyone to believe there is a strong provision, foreign nationals who have Federal felony drug convictions or violent crime convictions are already subject to deportation if they are already here or denied entry as being inadmissible. So the gang provision written in this bill adds nothing to current law and obviously will not be used. It is, at best, a feel-good measure to say we are being tough on criminal gangs while doing nothing to remove or deny entry to criminal gang members.

It is easier to prove someone is a convicted drug trafficker than both a drug trafficker and a gang member. So as currently written, why would this provision ever be used? Simply put, it would not be used.

My amendment would strike this do-nothing provision and issue a new, clear, simple standard to address the problem of gang members. My amendment would strike this do-nothing provision and create a process to address criminal gang members where the Secretary of Homeland Security must prove: one, criminal street gang membership; and two, that the person is a danger to the community. Once the Secretary proves these two things, the burden then shifts, as it should, to the foreign national to prove that either he is not dangerous, not in a street gang, or that he did not know the group was a street gang. It is straightforward and will help remove dangerous criminal gang members.

My amendment also eliminates the possibility of a waiver. Under my amendment, the vast majority of people here illegally who could be excluded based upon criminal gang membership would be able to appeal that determination to an immigration judge. Even if they are found to be a gang member, if they can show they are not a danger to society, they can gain status. This gives the Secretary--in the event they appeal to an immigration judge--the ability to make these two determinations before denying entry or starting deportation. It is a real solution to dangerous criminal gang members who are either here in the country now seeking legal status or who are attempting to enter from abroad.

I urge my colleagues to look at this amendment and hopefully get it on the list of issues we can discuss and vote on before we have final passage.

To summarize, the current bill is simply a feel-good measure that has very limited impact. It will rarely be used because it is written in a way with many loopholes. And, even if it is, the Secretary can waive the deportation.

To a greater extent, we ought to be emphasizing how many waivers there are in this bill, which give too much delegation to the Secretary. We ought to be legislating more in these areas and making more determinations here instead of leaving it up to the Secretary. A vote against my amendment is a vote against commonsense legislation to address criminal gang members.

I am sure somebody is going to argue this might be too high of a burden. My amendment simply requires the Secretary make the initial determination for purposes of admissibility. Under my amendment, the vast majority of people here illegally who could be excluded based upon criminal gang membership would be able to appeal that determination to an immigration judge. So there is review of these decisions to deny status if the Secretary believes the individual to be a gang member.

Criminal street gangs, as everyone knows, are dangerous. They survive by robbing their community of safety. They are involved in drug trafficking, human trafficking, and prostitution. The way the bill deals with criminal gang members would allow gang members to simply say they are no longer a gang member, with no further determination, and they would be able to gain admission.

In reality, it is hard to walk away from a gang, and some will claim they did gain status. The only way to prevent gang members from gaming the system is through my amendment. It provides the Secretary and immigration judges the discretion they need. Even if they are a gang member, if they can show they are not a danger to society, they can gain status. This is a reasonable standard that allows the alien to argue they are not a gang member and/or dangerous.

There is a precedent in the immigration code related to group membership as a bar: namely, membership or association with a terrorist organization. Criminal gangs--although not legally terrorist organizations--can be just as dangerous as terrorists. Why would we not want to give the Secretary this authority?

This bill provides sweeping waiver authority and discretion to the Secretary to make all sorts of decisions. I don't know why the sponsors would oppose discretion to the Secretary to deny gang member admission. A vote against this amendment--if it is brought up--is a vote to allow dangerous gang members a path into our country.

Some may argue that it should be tied to some sort of criminal conviction. Well, criminal gang members are not often convicted of a crime of gang membership. In fact, the Federal crime of being a gang member is almost never used. To only limit gang member restrictions to those convicted would be a huge loophole given the difficulty of prosecuting someone for simply gang membership. The underlying bill doesn't even consider State-level convictions for gang membership as my amendment would.

Simply put, my amendment will help prevent gang members from getting into this country, and the bill will not. I hope we can get this amendment on the list to be voted upon.

I yield the floor.

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Mr. GRASSLEY. Mr. President, I want to make a few points in response to the Senator from Louisiana who has been pushing to get a number of so-called noncontroversial amendments adopted. There have been a number of misrepresentations. A major incorrect point made is that our side responded with only a list of controversial amendments. The fact is we sent over, for consideration by the other side, a number of amendments on our list but we did not hear that we could just get a vote. But in addition to sending back a list of noncontroversial amendments we did ask if we could have a vote on a number of our amendments. So talk about breakdowns, we cannot even get a vote on our amendments.

In regard to some of the amendments the Senator from Louisiana has suggested, they are not as easy as appears. Some are badly drafted, so we tried to fix them and send them back. We have not heard yet. The list we sent over does not say we will not agree to more amendments later, but we have to work through these and fix those that are messed up, frankly.

The latest problem is that the Democrats want to pick which Republican amendments we can vote on. I have, for instance, an anti-gang amendment the Democrats do not want to vote on. Their bill allows gang members to become citizens. We should get votes on our amendments in addition to this whole process of approving a list of noncontroversial amendments that can be adopted en bloc.

I yield the floor.

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