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S. HRG. 109–668

COMPREHENSIVE IMMIGRATION REFORM II

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

OCTOBER 18, 2005

Serial No. J–109–42

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 86

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 2

prepared statement .......................................................................................... 105

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 127

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Chao, Elaine L., Secretary of Labor, Washington, D.C. ....................................... 7

Chertoff, Michael, Secretary of Homeland Security, Washington, D.C. .............. 4

Krikorian, Mark, Executive Director, Center for Immigration Studies, Washington, D.C. ........................................................................................................... 35

Massey, Douglas S., Professor of Sociology, Princeton University, Princeton, 

New Jersey ........................................................................................................... 37

Sharry, Frank, Executive Director, National Immigration Forum, Washington, 

D.C. ........................................................................................................................ 33

QUESTIONS AND ANSWERS 

Responses of Michael Chertoff to questions submitted by Senators Grassley, 

Kyl, Cornyn, Feingold, and Coburn .................................................................... 45

Responses of Elaine L. Chao to questions submitted by Senators Kyl, Cornyn, 

and Feingold ......................................................................................................... 63

Responses of Elain L. Chao to additional questions submitted by Senator 

Feingold ................................................................................................................ 66

SUBMISSIONS FOR THE RECORD 

Chao, Elaine L., Secretary of Labor, Washington, D.C., prepared statement .... 68

Chertoff, Michael, Secretary of Homeland Security, Washington, D.C., prepared statement ................................................................................................... 78

Embassy of Honduras, Ramon Custodio, Charge ́ d’affaires, a.i., Washington, 

D.C., letter and statement ................................................................................... 88

Faith-based leaders and organizations, joint statement ...................................... 97

Hebrew Immigrant Aid Society, and other national and local Jewish organizations, Washington, D.C., joint statement ........................................................... 101

Krikorian, Mark, Executive Director, Center for Immigration Studies, Washington, D.C., prepared statement ....................................................................... 107

Massey, Douglas S., Professor of Sociology, Princeton University, Princeton, 

New Jersey, prepared statement ........................................................................ 129

Moran, Tyler, Policy Analyst, National Immigration Law Center, Los Angeles, 

California, statement ........................................................................................... 134

Sharry, Frank, Executive Director, National Immigration Forum, Washington, 

D.C., prepared statement .................................................................................... 140

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COMPREHENSIVE IMMIGRATION REFORM II 

TUESDAY, OCTOBER 18, 2005 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:32 a.m., in room 

226, Dirksen Senate Office Building, Hon. Arlen Specter (Chairman 

of the Committee) presiding. 

Present: Senators Specter, Grassley, Kyl, DeWine, Sessions, 

Cornyn, Brownback, Coburn, Kennedy, Feinstein, Feingold, Schumer, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

hour of 9:30 having arrived, the Judiciary Committee will proceed 

with its hearing on immigration reform, one of the most important 

and difficult issues facing the United States today. 

We see a problem with our borders being unprotected. We see a 

great need for labor in this country, both skilled and unskilled. We 

see a certain apathy and resentment toward immigrants, notwithstanding the fact that this country was built by immigrants and 

that we need immigrants in order to sustain our economic vitality. 

I approach these hearings with a bias of birth because both of my 

parents were immigrants. My father came to this country at the 

age of 18 in 1911, served in World War I. My mother came at the 

age of six with her family, also from Ukraine. I think it fair to say 

that the Specter family has contributed to this country as this 

country has been built by immigrants. 

We take up the consideration of two bills, one introduced by Senator McCain and Senator Kennedy, and another introduced by Senator Kyl and Senator Cornyn. These bills deal with the subjects of 

enforcement and guest worker programs. The main differences between these two bills involve how they would deal with undocumented immigrants already in this country. 

When we take a look at the economic facts, the Bureau of Labor 

Statistics report entitled, ‘‘Labor Force Projections to 2012: The 

Graying of the U.S. Workforce,’’ we see that by the year 2012, the 

labor force in the age bracket of 25 to 34 is projected to increase 

by only three million while those 55 years or older will increase by 

18 million. Chairman Greenspan has described an alarming situation on the economic impact of an aging American population 

where the diminishing growth in the labor force and the increase 

in the ratio of elderly workers places an enormous burden on the 

2

Social Security system and the Medicare programs being 

unsustainable in the long run. We see tremendous shortages in 

skilled workers in health care and in construction, plumbers, electricians, and virtually all lines. 

The Pew Hispanic Center in a recent report showed that for the 

first time in our Nation’s history, the number of illegal immigrants 

coming into this country exceeds the number of legal immigrants, 

so we have a major, major problem on our hands. 

This Committee worked very promptly through the Subcommittee chaired by Senator Cornyn and then took the issue up 

at full Committee with a hearing in July. We have been interested 

in pressing ahead and the administration was not ready, and I understand that, for the July hearing, with the complexities of the 

issues. A number of us have been at the White House, talking to 

the administration about the administration position. 

In mid-October, the Judiciary Committee faces a daunting workload. That is, candidly, an understatement with what we have done 

by way of class action reform and bankruptcy reform and reporting 

out an asbestos bill and the confirmation of the Attorney General, 

confirmation of the Chief Justice, and a very heavy backlog on controversial and contested Judicial nominees. But we are prepared to 

tackle this matter. It is a matter of very, very substantial urgency 

and the one obstacle, the only obstacle to which this Committee 

will defer is the calendar. Unless we can elongate the months of 

October and November, it is hard to see how we can fit all of the 

square pegs into square holes and move forward, but we are determined to do our utmost. 

Senator Kennedy is serving as Ranking today because of his 

longstanding interest and we will await his opening statement. We 

pride ourselves here on running on time, so I am going to yield 

back the last 4 seconds of my opening statement—one second of my 

opening statement. 

[Laughter.] 

Chairman SPECTER. Our first witness today is the distinguished 

Secretary of Labor, who is now in her second term. Her resume 

would take more time than is allotted for her testimony, so we will 

put it into the record, but I have had the pleasure of working with 

her extensively on the Appropriations Subcommittee on Labor, 

Health, Human Services, and Education. She is a tireless worker 

and I want to thank her especially for her help on our asbestos reform bill. 

Before beginning the testimony, may I yield to our distinguished 

Ranking Member, Senator Kennedy, with a word of praise for his 

outstanding contribution to the Senate generally, but especially in 

the field of immigration. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman. I want 

to thank you for calling these hearings. This is the second hearing. 

We know the Senate has a very full agenda with a lot of very important pieces of legislation, but the whole issue of border security 

and immigration reform is an issue which is of, I think, concern not 

3

just to areas that are particularly adversely impacted, but to the 

Nation as a whole. 

Senator McCain and I have put forward a proposal, as I know 

other colleagues have, as well, Senator Cornyn, Senator Kyl, members of our Committee. Senator Feinstein has been enormously interested, as other members of the Committee have been. 

I think, first of all, Mr. Chairman, I don’t intend to make an extensive statement here, but I think it is important that the country 

understand that, one, this is a national security issue. We know 

that the current system is broken. We know that we have spent 

more than $20 billion over the last 10 years and law enforcement 

in and of itself has not been able to close the borders. This is a national security issue. 

Number two, this whole question and issue we are trying to resolve, I don’t believe will ever be resolved unless we have the support of Mexico and the countries of Central America. I think we 

need to broaden this out to be inclusive of these countries and they 

need to understand the importance of having not broken borders, 

but smart borders, that reflect national policy. I don’t believe we 

are going to be able, with all the electronics and all the law enforcement in the world, to function and have an effective system. 

So we have to include those nations. They have to be serious about 

it and they have to be responsive to the leadership here in the 

United States. We are still hopeful that we can work with the 

President—I am sure my colleagues do as well—in developing a bipartisan policy that is going to address the issues. 

And third, we know that we are not going to deport the 11 million undocumented that are here at this present time. It is just not 

fathomable. For any person that is going to speak on immigration 

reform, they have to address that or their proposal is not serious. 

That is a complicated issue. It brings enormous emotion. 

Senator McCain and I are not for amnesty. We are not for putting anyone at the front of the line. We are not for forgiving anyone. But we do believe that there is a process that can be developed 

for those individuals who want to work hard, for those people that 

want to play by the rules, those people that want to pay their fine 

and pay their dues, that they can go to the end of the line and 

through a long period of hard work be able to earn the rights here 

in the United States. That is consistent with our long tradition as 

a nation of immigrants. 

This is a complicated question. Just these observations are not 

definitive in terms of an approach. I do favor, as I know Senator 

McCain does, strong law enforcement provisions and heightened security arrangements. I am very hopeful that perhaps we can all 

find a way that is going to be responsive to the security measures 

which are going to be necessary. I also favor a program that is 

going to admit temporary workers here in the United States 

through a legal process rather than the 400,000 to 500,000 that 

come over the border illegally and adjustment of status, which also 

will give focus and attention to our overall national security issues. 

I want to thank you, Mr. Chairman, for having these hearings 

and for giving a focus and attention to an issue of enormous importance and consequence to our country. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

4

I am advised that the witnesses and the administration prefer to 

have the order inverted and to start with the Secretary of Homeland Security, Hon. Michael Chertoff. He brings to this position an 

outstanding record academically. He was a U.S. prosecutor for 

more than a decade, Assistant Attorney General in the Criminal 

Division, Court of Appeals for the Third Circuit, and now leaving 

that lifetime appointment to be Secretary of Homeland Security. 

Thank you for joining us, Secretary Chertoff, and we look forward to your testimony. 

STATEMENT OF MICHAEL CHERTOFF, SECRETARY OF 

HOMELAND SECURITY, WASHINGTON, D.C. 

Secretary CHERTOFF. Thank you, Mr. Chairman, and thank you, 

Senator Kennedy and other members of the panel for the opportunity to appear here to discuss vital issues of border security, interior enforcement, and immigration reform as a whole. 

Later today, the President is going to sign the DHS appropriations bill into law, and thanks to Congress, DHS now is going to 

have substantial additional funds to spend on critical border security and enforcement initiatives. 

As you pointed out, Mr. Chairman, over the last several months, 

members of the administration have talked to a lot of Members of 

Congress about comprehensive immigration reform. We have benefited greatly from the input we have received and we appreciate 

your support and your focus as we move forward on this very, very 

important item on the national agenda. 

Ever since the President’s first inauguration, he placed increasing importance on border security and has devoted significant resources to this challenge. The President believes, and I agree, that 

illegal immigration threatens our communities and our National 

security. The fact of the matter is that the ability of undocumented 

individuals to enter our country represents an obvious homeland 

security threat. Flagrant violation of our borders undercuts the 

rule of law, undermines our security, and imposes special economic 

strains on our border communities. When we don’t control our borders, we also risk entering into the U.S. of terrorists or criminals 

who want to do us harm. 

There is also a humanitarian dimension. Migrants who rely on 

coyotes, human traffickers, and smugglers are often robbed, 

abused, and left for dead on their illegal trek across our borders, 

so we have to, from a humanitarian standpoint, as well, address 

this critical situation at the border. 

The fact of the matter is that ending illegal immigration is going 

to require three pillars. It is a three-legged stool. It requires tough 

enforcement at the border, tough interior enforcement, and a temporary worker program to deal with the very real draw that the 

need for labor is exerting on migration across the border. 

Now, Secretary Chao is going to discuss the temporary worker 

program in more detail in a few moments, but I do want to say this 

from an enforcement standpoint. Without a temporary worker program, we have two huge strains on our current immigration enforcement system: First of all, the high employer demand which 

draws people into the country; and second, the active participation 

of eight million undocumented workers in the U.S. economy. In 

5

order to have an effective border security and interior enforcement 

program, we have to have a workable and enforceable temporary 

worker program to lift some of the strain off two of the legs of the 

stool. We think that a well-designed temporary worker program 

will provide legal channels for U.S. employers and foreign-born 

workers to match needs in the best interest of the U.S. economy 

and without disadvantaging workers. 

Once we have this in place, of course, it is critical that we couple 

that program with a tough enforcement strategy, and we have already begun that strategy. We have begun to plan it and we have 

begun to implement it as part of our responsibility to protect our 

country. 

Since the President took office, the U.S. Government has deported several million illegal migrants, including approximately 

300,000 criminal aliens. And since 9/11, yearly spending has increased by $2.7 billion, 58 percent. Yearly spending on immigration 

enforcement has also increased dramatically and enforcement expenditures have gone up by $1 billion. Every day, our Department 

agencies take significant steps to secure our borders. The U.S. Customs and Border Protection Agency has over 11,000 Border Patrol 

agents along the 6,000 miles of Northern and Southern border. An 

additional 18,000 CBP officers are posted at our ports of entry and 

Immigration and Customs Enforcement has over 8,000 agents and 

officers working to apprehend criminals, absconders, and other individuals illegally in the United States. And, of course, the United 

States Coast Guard also plays a critical role in securing our land 

and sea borders. 

Let me give you some staggering statistics. In fiscal year 2005 

alone, Border Patrol agents made over one million apprehensions 

and CBP field operation officers stopped more than 600,000 aliens 

attempting to enter our ports of entry. In the same period, Immigration and Customs Enforcement apprehended approximately 

140,000 illegal aliens in interior enforcement operations, including 

15,000 under its Fugitive Operations Program. ICE also executed 

removal orders for over 160,000 aliens who had been placed in proceedings, and of those, 84,000 had criminal records. That is both 

a demonstration of accomplishment, but also an indication of the 

magnitude of the challenge. 

Now, even in the last month, as the Department was very busy 

coordinating the response to Hurricane Katrina, we have continued 

to move forward aggressively on the issue of border security. Last 

month, after Congress had enacted legislation authorizing me to do 

so, I authorized the elimination of environmental challenges which 

were holding up completion of the 14-mile border infrastructure 

system near San Diego, which I know many will remember as 

being a very grave source of concern to people in San Diego and 

surrounding communities. That was a step that had languished for 

almost a decade. 

Recently, also in this last month, we have obtained a Predator 

B unmanned aerial vehicle, which is a follow-on to a pilot program 

we ran last year, to enhance our ability to secure the Southwest 

border. We are currently partnering with the Defense Department 

as part of their training programs to use their UAVs to give us additional ability to see what is going on the ground. 

6

Also importantly, with funds appropriated by Congress earlier 

this year, we have begun to hire and have already begun graduating 1,500 new Border Patrol agents for deployment along the 

entire border. As we speak, there are 400 Border Patrol agents 

training at the academy in Artesia, New Mexico, and I look forward 

later this week to addressing them when I go down there on Thursday. 

So we are grateful to Congress for providing this function. I want 

you to know we are moving very rapidly to deploy these assets and 

to take other additional steps. 

Let me just take one moment to indicate that this is really part 

of a comprehensive strategy, because although we have taken significant action, this is a system desperately in need of repair, and 

the fact of the matter is, people are rightly upset and distressed 

about the prospect that we do not have control of our border the 

way we should and that when we apprehend people, they wind up 

getting released because we don’t have a sufficient ability to remove them. So we are very focused along the entire continuum of 

the system to make sure we are working every lever of power and 

every resource that we have to make this work more quickly and 

more efficiently. 

I have to say, in one respect, I want to—since the question of 

Mexico was raised—I want to thank the Mexican officials for the 

cooperation we have gotten from them in dealing with organized 

smuggling groups through information exchange and joint targeting. That is going to be very helpful. 

But I also think we need to look at the whole system across the 

board, and I have a couple of charts that will illustrate this. 

Chairman SPECTER. Mr. Secretary, how much more time do you 

think you will need to finish your presentation? 

Secretary CHERTOFF. Two minutes, if that would be OK, Mr. 

Chairman. 

Chairman SPECTER. That would be fine. 

Secretary CHERTOFF. What I want to indicate is when we think 

about the issue of apprehensions, we see that 55 percent of those 

apprehended are those who come—a little more than 55 percent 

are those who come between the borders. But a significant number, 

the remainder, are those who are apprehended at the ports of 

entry. 

Now, with respect to those caught between the borders, when 

they are Mexicans, they are all returned. They are not released. 

They are simply sent back across the border. But, of course, it is 

not quite that easy with respect to non-Mexican illegal aliens and 

that category is approximately 11 percent. What you will see if you 

look at the narrow slivers on the pie charts is that we have been—

out of 160,000 non-Mexicans that we have apprehended, 40,000 

have been returned and 120,000 have been released. That is unacceptable and we are going to change that starting immediately. 

The key here is to change the amount of time that it takes to 

move people out of detention, get them back to their countries, and 

also have additional beds so that we can detain people. That is not 

only important because we don’t want to release them in the community when we have apprehended them, but because we need to 

deter people from coming across the border. If they think that they 

7

can come across and get released, they are going to keep coming, 

and we have got to change that. 

The next chart is going to show something that we have done 

with respect to one program, and then, I think, Mr. Chairman, I 

will stop. We had an operation called Texas Hold ‘em which we ran 

in the McAllen Border Patrol Sector during the course of this summer and this had to do with a focus on Brazilian nationals, which 

was the largest category of non-Mexican illegal migrants who were 

coming across the border. When we started this program in June, 

if you look at the comparison between apprehensions and removals, 

you will see there were a lot of apprehensions and comparatively 

few removals. 

As we allocated additional bed space to this program, we actually 

increased the percentage of removals in comparison to apprehensions, but more important, we reduced the number of apprehensions because very quickly, Brazilians got the idea that if they 

came up through Mexico and they got caught, they weren’t going 

to be released through the community but they were, in fact, going 

to be held and returned, and I think that is a key finding in terms 

of our ability to manage this border enforcement. 

As I am happy to expand upon in greater length, doing this is 

going to require addressing all parts of the process. It is going to 

be increased beds. It is going to involve working with foreign governments to have them move more quickly to take people back to 

their home countries. It is going to require cutting some of the 

transaction costs and time that we spend. But I think if we do it, 

we can get this job done. 

So with this experience and, of course, with the three-legged 

stool of a comprehensive approach, I am confident we can finally 

give the American people what they are entitled to get, which is 

control over the borders that works efficiently and that is also consistent with our American ideals. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Secretary Chertoff. 

[The prepared statement of Secretary Chertoff appears as a submission for the record.] 

Chairman SPECTER. We turn now to Secretary Chao, Secretary 

of Labor, in her fifth year, having served the President since his 

election. Secretary Chao came to this position with a very extensive 

background in government. She was Deputy Secretary for the Department of Transportation, Deputy Maritime Administrator. Before that, she had been the President and CEO of the United Way 

of America. She has a very distinguished academic career from 

Holyoke and an MBA from the Harvard Business School. 

Thank you for joining us this morning, Secretary Chao, and the 

floor is yours. 

STATEMENT OF ELAINE L. CHAO, SECRETARY OF LABOR, 

WASHINGTON, D.C. 

Secretary CHAO. Mr. Chairman, Senator Kennedy, and members 

of the Committee, thank you for the opportunity to testify today on 

the President’s plan for comprehensive immigration reform. As 

challenging as this issue is, we can all agree that America needs 

an immigration policy and a system that effectively secures our 

8

borders and serves our economy, and the President’s proposal does 

both. 

A workable, enforceable temporary worker program must be an 

essential part of any comprehensive strategy to secure our nation’s 

borders. By addressing the economic forces that drive immigration, 

we can meet employers’ needs for workers, provide appropriate 

legal channels for foreign-born workers to access opportunity, and 

allow enforcement resources to be targeted on the critical mission 

of border security. 

Last year, the President laid out a comprehensive vision for securing our borders and also meeting our work force needs, and 

today, we will be discussing the President’s plan in greater detail 

as a result of extensive policy discussions within the administration 

and with many of you. 

First and foremost among the principles the President outlined 

is protecting the homeland. An effective temporary worker program 

will allow our country to meet its needs for temporary, legal, foreign-born workers while enabling U.S. enforcement to focus aggressively on achieving control of our borders, punishing those who continue to employ workers illegally, and intercepting and removing 

workers who violate the temporary worker program requirements. 

Now, many of you are familiar with the other key elements of the 

President’s plan, but let me briefly outline them. We need to serve 

America’s economy by matching willing workers with willing employers in a clear, efficient, and timely process. We need to ensure 

that violation of our immigration laws is not rewarded by giving illegal immigrants an advantage over those who follow the rules. 

We should create incentives for temporary workers to return to 

their home country after their work visas end, and we should also 

encourage and enable those who are currently living in the shadows an opportunity to come forward and participate in a temporary 

worker program. 

Under the President’s principles, those who are currently here illegally would have to pay an up-front fee, or fine, in order to receive a temporary worker visa. They would not be granted amnesty 

and they would not be rewarded with an automatic path to citizenship. In addition, felons and those currently in removal proceedings 

would be barred from the temporary worker program. 

This administration envisions that this new temporary worker 

program would replace the current H visa programs for low-skill 

workers. Today, these H visa categories are too complicated, too 

complex, too cumbersome, and too confusing. In fact, every year, 

the Department receives hundreds of requests from Members of 

Congress petitioning us to reclassify workers into categories whose 

quotas have not been filled. Let me note, however, that this new 

temporary worker program does not include the H–1B program for 

high-skilled workers. 

As we go through the process of designing a program to secure 

our borders while meeting our Nation’s economic needs, we will 

continue to look to the expertise and the wisdom of the Congress. 

I know that several members of this Committee are deeply interested in pursuing rational and fair immigration laws and reforms, 

and some of you have also introduced bills outlining significant 

changes to the current system. 

9

Reforming our temporary worker program is a difficult and complicated undertaking, but I am confident that reforms will be enacted to protect homeland security, restore the rule of law, serve 

the economic needs of our nation, and also honor our Nation’s history of openness and opportunity. 

With that, I am now pleased to answer any questions that the 

Committee may have. 

Mr. Chairman, I have a longer statement which I would like to 

submit for the record, if I may. 

Chairman SPECTER. Secretary Chao, your full statement will be 

made a part of the record, as will all statements of all witnesses. 

[The prepared statement of Secretary Chao appears as a submission for the record.] 

Chairman SPECTER. We will now proceed with 5-minute rounds 

by all the members. 

Secretary Chertoff, with respect to the efforts to protect the border, our Southern border alone consists of 1,500 miles. Our Northern border with Canada approximates 3,000 miles. How do we realistically approach that issue to secure the border? Is it physically 

possible? 

Secretary CHERTOFF. I think it is, Mr. Chairman, if you look at 

it as a system, and it is going to require a number of pieces that 

have to fit together. 

Obviously, you need additional Border Patrol agents, and we 

have gotten 1,500 that we are going to deploy this year. It requires 

some additional infrastructure. I am not suggesting a fence across 

the border. There are places where vehicle barriers or fencing or 

lighting or sensors actually does make a huge difference in terms 

of being able to deploy Border Patrol agents rapidly in order to 

intercept people coming across the border. 

The third is high-tech. I mean, the ability to use UAVs, even satellites to give you a picture of what is going on over a large area 

of desert is very important in terms of, again, allowing us to leverage our resources. 

But you also have to look at the back end. The fact of the matter 

is that illegal migrant organizations are very sensitive to incentives 

and disincentives, as the Texas Hold ‘em experience shows. If we 

catch people and we release them, we are sending a very bad message out, and the message is— 

Chairman SPECTER. Without going into that, I would like you to 

supplement your answer. The infrastructure you describe is important. Increased Border Patrol is important. But give us a program 

as to how you really are going to tackle 1,500 miles of the Southern 

border and 3,000 miles of the Northern border. 

One followup question on the same line before turning to Secretary Chao, the GAO released a report this year that immigration 

custom enforcement is devoting more attention to preventing terrorism and less attention to illegal immigrants. Now, obviously, 

catching terrorists is more important than stopping illegal immigrants from coming into the country. Are the resources at hand—

and I know the President is signing the appropriation bill this 

afternoon—are the resources at hand sufficient to devote to the terrorist problem and still have an effective program against the illegal immigrants? 

10

Secretary CHERTOFF. I believe, Mr. Chairman, that they are. The 

enhanced resources that Congress has given us are going to be tremendously helpful in doing both. 

One thing I do want to point out is that in doing, for example, 

our worksite enforcement program, we have focused—we have really pursued both goals. We have focused on critical infrastructure. 

We have focused on those people who are absconders, where there 

is a national security interest there, there is some reason to believe 

they may be affiliated with terrorists or criminality. So we have actually been able to pursue both of these goals in a single program 

and we will make good use of the additional resources that Congress has appropriated to us for these purposes. 

Chairman SPECTER. Secretary Chao, in August of this year, you 

highlighted the need for health care workers, saying that by the 

year 2012, our country will need more than 3.4 million new health 

care workers. We have seen a need in the construction industry, 

skilled tradesmen. How do we effectively and practically take steps 

to see to it that available U.S. workers are given priority and that 

there is sufficient publicity going to people who may be in the 

United States, or who are in the United States who may be in a 

position to fill these jobs? 

There is a great deal of resentment which continues as to immigrants. Somebody speaks a little differently, answers the telephone, 

there is sort of an innate hostility, and that, of course, is aggravated by the contentions that people are being brought in to take 

jobs which really ought to go to people in the United States. So 

what is the practical answer as to how you be sure that there are 

no U.S. workers available to handle the jobs and yet accommodate 

these areas of real need? 

Secretary CHAO. The President’s proposal addresses this issue 

because the President is very concerned about making sure that 

willing workers are indeed given the opportunity to work for employers. In the President’s proposal, the process of labor certification still goes forward. The employers will still have a responsibility to make sure that they are advertising and that they are 

searching for American workers first at an actual wage that would 

make it possible, again, for American workers to have, if you will, 

the first chance at these jobs. 

Only after the employer, with input from the Department of 

Labor, finds that it cannot hire adequate U.S. workers then can it 

turn over to hiring a temporary worker who is currently in the 

country or perhaps a temporary worker who is not in the country 

currently. There are different procedures for both categories. 

Chairman SPECTER. Thank you very much, Secretary Chao. My 

red light went on after you started your answer, so I will yield at 

this point to Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Secretary Chertoff, both you and Secretary Chao have said that 

border security and interior enforcement must be closely tied to 

legal avenues for workers needed by our economy, but others disagree and want Congress to pass just a border security and interior 

enforcement bill before it turns to the question of immigration reform, including temporary worker visas. As the head of Homeland 

Security, why do you take that position? 

11

Secretary CHERTOFF. I think you have to look at the issue, Senator, as a three-legged stool. It is unstable if you only have one or 

two of the legs. The fact of the matter is, there is tremendous pressure on the border— 

Senator KENNEDY. What do you mean by unstable, I mean, in 

terms of Homeland Security? 

Secretary CHERTOFF. It would be enormously difficult if we were 

to attempt to control illegal migration at the border without having 

some legal avenue to address the fact that there is a high demand 

for non-U.S. people to come in and perform certain kinds of jobs 

and there is a tremendous desire of those people to come in. 

Most of the people who come across the border are not coming 

across to do us harm. There is some percentage who are criminals 

and maybe a smaller number who are potentially even worse than 

criminals. But the fact of the matter is, we have to deal with them 

all equally and the ability to do interior enforcement and border 

enforcement is stretched well beyond the limit if we have to treat 

everybody as if they are somebody who has to be the subject of an 

enforcement action. 

If we can channel people into regulated approaches to work 

where we satisfy the demand for the labor through legal channels, 

where people who want to work and do us no harm get a legal avenue to do so, that relieves a tremendous amount of pressure. We 

will still have a big challenge, but we will now be able to apply it 

against a smaller pool of people that are coming across. 

Senator KENNEDY. Also, what is your own view? Do you think 

our government, even if we had the resources, could have mass deportation of the eight to ten million undocumented here? Is that 

even conceivable or desirable, and are there any estimates in terms 

of what those costs would be, both in terms of dollars as well as 

the economic implications and importantly in terms of human conditions? What would happen? 

Secretary CHERTOFF. I think it would be hugely, hugely difficult 

to do this. First of all, obviously, a lot of these people would not 

want to be deported. We would have to find them. That would be 

an enormous expenditure of effort and resources. We would then 

have to process them and remove them. They would have legal resource. I can’t even—I think we are talking about billions and billions and billions of dollars to do it, I think. This is an area where 

practical concerns are really paramount. 

Senator KENNEDY. I am going to come, Madam Secretary, to you 

in just a minute. I want to ask the Secretary, a number of Senators 

wrote you earlier this week concerned about the recent DHS actions to impersonate OSHA officials, safety officials. Do you want 

to make a comment on it? This is where they impersonated OSHA 

officials. They bring workers in allegedly to get training in terms 

of safety at the workplace. I mean, I think particularly of Katrina 

with all the cleanup there. Then there was a sting operation and 

a number of these people were arrested. That has all kinds of implications, obviously, in training and safety. Just a quick reaction. 

Secretary CHERTOFF. I think that was a bad idea and I have directed it not happen again. I am not saying we don’t use ruses. It 

is appropriate to use ruses. But I think a ruse that involves safety 

or health is not appropriate. 

12

Senator KENNEDY. OK. Madam Secretary, I want to hear from 

you, too, your sense about why we think legal avenues for workers 

must be tied to enforcement measures. I think of it in two areas. 

One, obviously, in the heightened border, but also we move on toward the temporary worker program that is going to provide legal 

means for these workers. There will also have to be enforcement 

of those that are going to hire illegal workers or otherwise we are 

going to have the economic kind of conditions that have been described by the Chairman. 

Secretary CHAO. Well, I agree with Secretary Chertoff. If we are 

going to patrol our borders effectively, having some way to gauge 

who is coming across our borders must be an essential part of that 

strategy. And again, to have a workable, enforceable temporary 

worker program will go a long way to securing our borders. We 

have got to know who is coming across our borders, and if we have 

a program that will legally be able to track people coming over the 

borders, more resources can be more effectively utilized by the Department of Homeland Security to carry out its important functions 

of securing our borders. 

Senator KENNEDY. My time is up. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

Senator Cornyn? We are proceeding under the early bird rule. 

Senator CORNYN. Thank you, Mr. Chairman, and I would ask 

that my written statement be made part of the record. 

Chairman SPECTER. Your full statement will be made a part of 

the record. 

Senator CORNYN. Thank you. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Senator CORNYN. Secretary Chertoff, let me ask you about expedited removal. You went over a little bit of that in your opening 

statement, but it seems to me that unless we are going to build literally tens of thousands of detention beds, we are going to be back 

in the same old catch-and-release soup that you explained is intolerable. 

Right now, to remove an alien who comes into the country, I 

think other than through the expedited removal process, the average is about 89 days. That is cut down considerably, but still remains roughly 30 days under an expedited removal process, which 

means you still have to have some means of detaining those individuals. 

Could you describe to the Committee what legal measures and 

diplomatic measures, what other measures that you believe that we 

can effect that will cut that down even further so we don’t have to 

build tens of thousands of detention beds to make the deterrence 

at the border real. 

Secretary CHERTOFF. I would be delighted to, Senator. I actually 

have another chart, and this is my last one. I think you have put 

your finger on exactly the issue. It is an issue of how many days 

you occupy a bed. The fewer days, essentially, you increase the 

number of beds. 

We have now put expedited removal in place across the entirety 

of the Southern border, so we are using it everywhere, and its prinVerDate 0ct 09 2002 15:11 Nov 15, 2006 Jkt 030759 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30759.TXT SJUD4 PsN: CMORC
13

cipal significance is with respect to non-Mexicans because they 

can’t simply be immediately sent back to Mexico. 

You will see that there is an average of a 34-day cycle time now, 

but a lot of it is taken up with what I would call bureaucratic 

churn. In other words, we have got an average of 20 days to obtain 

travel documents from foreign governments. We ought to be able 

to cut that down in half or to a quarter. We have had 12 days to 

arrange for country clearance, escort, and schedule air transportation. I have spoken to Secretary Rice. We are working on dramatically cutting the time for country clearance. We are working 

on a plan now to cut the number of escorts we need for people who 

aren’t dangerous and we are working on a way of getting an increase in air transportation. 

If we could cut this in half, we would essentially double the number of beds. That is exactly what we are underway trying to do 

right now. 

Senator CORNYN. Do you believe that with the 20 days it takes 

to obtain travel documents from foreign governments, are we seeing any foot-dragging by foreign governments when it comes to cooperating in the return of their citizens? 

Secretary CHERTOFF. We do. Some countries are very helpful and 

forthcoming. Others do tend to be a little dilatory or resistant. One 

thing, for example, we have suggested doing is instead of having 

in-person consular visits, we will do video conferencing so we don’t 

have to wait for 5 days for a consular person to come. They can 

just do it over video conference. 

At the end of the day, we will probably have to lean pretty heavily on some foreign governments to make sure that they are willing 

to take back people from their own countries. I have made suggestions. We are willing to have foreign countries send people over 

here to help us in terms of travel documents. We are willing to use 

any and all techniques possible to expedite this. I am hopeful that 

most countries will be responsive and live up to their responsibility, but in the event that some don’t want to, I think we do have 

to push them to do it. 

Senator CORNYN. I am very glad that you have seen fit to do expedited removal across the entire border, but I am very concerned 

that that number of days it takes to accomplish that is still high. 

I would just point out in the last minute I have in this round, the 

Congressional Research Service makes a good point that there are 

a lot of people watching what we are doing along the border, which 

has a big impact on deterrence and our ability to control who comes 

into our country and determine why they are here. 

They report that U.S. OTM procedures appear to have been disseminated widely, for example, in Brazil. This may be due in part 

to the Brazilian soap opera entitled, ‘‘America,’’ which follows a 

young woman’s illegal journey to the United States through Mexico 

and has drawn a nightly viewing audience of some 40 million people. According to the Border Patrol, the Brazilians seem to know 

the process and it seems to be common knowledge that they won’t 

be immediately deported. So I think that is further support, if we 

needed it, for your conclusion that our catch-and-release program 

is really contributing to our problem and our lack of effective deterrence and it is absolutely critical that we work hard on that. 

14

Thank you. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Feinstein? 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

I want to associate myself with Senator Cornyn’s concern about 

in the ‘‘other-than-Mexican’’ category. 

I also want to agree with you that these figures are unacceptable. I have been looking at them and it is hard to believe this 

total, which is 1.7 million in just one fiscal year. It used to be that 

for every one person apprehended, the Border Patrol would assume 

that three got through. Is that still the case? 

Secretary CHERTOFF. I have to say, I have never understood that 

reasoning and it seems ultimately self-defeating for the following 

reason. If that were true, then if we stopped apprehending people, 

three times zero is zero. We could assume no one was coming 

across the border. That is obviously foolish. 

Senator FEINSTEIN. What do you assume? What— 

Secretary CHERTOFF. I assume there is some significant number 

getting through that we are not catching. I don’t think a formula 

captures it. One way we can measure it is by looking at some collateral indications. We can look at the number of times we continue 

to see the same people coming back and back, over and over again, 

because we do have fingerprints. After— 

Senator FEINSTEIN. What is that number? 

Secretary CHERTOFF. I don’t have—I think it usually hovers 

around 40 percent, mostly, I think, Mexicans. 

Senator FEINSTEIN. So you would add 40 percent of 1.7 million 

on top of this? 

Secretary CHERTOFF. I would hesitate, Senator, to give you a 

number. I mean, it would be a wild guess. I am sure— 

Senator FEINSTEIN. Could I get those numbers, please? 

Secretary CHERTOFF. Sure. 

Senator FEINSTEIN. Let me just move on, and let me just give 

you my observation, and to Secretary Chao, as well. I may be very 

wrong, but it seems to me that all the talk about the guest worker 

program actually spurs illegal immigration. I have seen no guest 

worker program that I, representing California, could vote for in 

good conscience that I believe would not be a major magnet. 

Now, I have served on the Immigration Subcommittee for about 

13 years and looked at it as it affects my State. We have a very 

large number of illegal workers in our State, many of them very 

good, all of them living in the dark of night, many of them here 

for as much as 20 years. In my view, we ought to find a way to 

be able to take people who have lived here without any criminal 

activity, been good citizens, worked hard, particularly in areas 

where there is need, which in my State it is agricultural, and be 

able to give them some kind of official temporary status provided 

for a period of time they would continue to work in agriculture. I 

prepared some legislation along that line, which at an appropriate 

time I would introduce. 

But I just want to say to you that from California, that is my 

view. There is no shortage of willing workers, Secretary Chao. 

There is an abundance of willing workers. The problem is their status. I think Secretary Chertoff is right that we have got to enforce 

15

the borders, and I was wondering if you could give us a brief 

progress report on the border fence. 

As you know, we appropriated the money. You used the Real I.D. 

Act to cut environmental reviews. What is the current status and 

how are you working to make the necessary environmental protections? 

Secretary CHERTOFF. One of the things I did do is we had, in the 

course of negotiating back and forth during the environmental litigation, committed ourselves to an approach that we thought was 

respectful of the environment, although it wasn’t necessarily everything that everybody who opposed the fence on environmental 

grounds wanted. We are committed to continuing with those undertakings. In other words, we are going to voluntarily comply with 

what experts that we think are good thought was appropriate. 

Now it is really in the hand of the builders. I don’t know if it 

is the Army Corps of Engineers that is going to do it or somebody 

else. I can find out for you, Senator. But the green light has now 

gone forward to build this remaining piece of infrastructure and I 

am convinced not only will it be better for our border, it will be 

safer for our Border Patrol agents and actually it is going to help 

the environment because it is going to stop people from coming 

across illegally, and that tends to have a bad environmental impact 

of its own. 

Senator FEINSTEIN. I would like to ask you about, and this is 

really not your problem but it is a problem and you are there, Senator Brownback and I cosponsored a bill called the Unaccompanied 

Alien Child Act. It was voted out of this Committee in April. Some 

of the Departments indicated they had some concerns. We have 

tried very hard to negotiate with them. We have been stonewalled 

all the way and I find this really unacceptable. 

I think Justice has taken the lead. I met with the Deputy Secretary of HHS that was in charge of children and families. We said 

we would submit some amendments which we thought might help 

the administration. We can’t get any response. It has gone from 

April to October. We have at any given time maybe 5,000 children 

are here unaccompanied. Some are locked up. How they actually 

are treated is unacceptable and we would like to get this bill 

moved. Can you help us? 

Secretary CHERTOFF. I will certainly—I know there are a number 

of Departments involved. I will certainly find out where we are 

with it. I mean, I don’t know, there may be some elements of the 

bill that there are going to be some objections to, but we certainly 

ought to get back to you and let you know what issues there are 

and if they can be addressed, that would be great. So I will do that 

for you. 

Senator FEINSTEIN. I appreciate that. Thank you. Thank you, Mr. 

Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

First, Secretary Chertoff, do you have a program for speeding up 

the training of Border Patrol agents, since we now have authorization and appropriations for training 1,500, actually, for next year? 

16

Secretary CHERTOFF. I know we can handle in terms of capacity 

the 1,500 we are talking about. I don’t know that we have condensed the process of training. The one thing I—because I did raise 

this issue with the Border Patrol—the one thing I did want to be 

careful about is part of the time it takes is an enculturation process 

to make sure that the Border Patrol agents are enculturated to 

what they need to do to function in an environment in which they 

are often by themselves. We want to make sure that they are properly disciplined, that they are resistant to the potential for corruption, because that is always an issue at the border— 

Senator KYL. I have some things I want to get into more than 

that. I know there has been a bottleneck that at least was alleged 

to have precluded us from training substantially less than 1,000. 

What you are saying is that we do have the capacity to train 1,500 

for the next year? 

Secretary CHERTOFF. Correct. 

Senator KYL. Thank you. Now, the Senator from Massachusetts 

talked about mass deportations. I just wanted to ask you, does the 

proposal that the administration is suggesting involve mass deportations at all? 

Secretary CHERTOFF. No. 

Senator KYL. You are familiar with bills that have been introduced in the Senate. Are either of you familiar with any bills in 

the Senate that would require mass deportations? 

Secretary CHERTOFF. No, I don’t understand that they require 

mass deportations. 

Senator KYL. OK, thank you. Nor am I. Third, the reasons for 

temporary workers, it seems to me, are twofold, and I would like 

to get both of you to comment on this. One is included in your 

statement, Secretary Chao: if these workers are permanent rather 

than temporary, then one could easily argue that it represents amnesty because it would allow them to remain in the United States 

while seeking legal permanent residence, something that people 

who are following the law cannot do. They must apply for that in 

their home country. 

And second, and it seems to me this is really critical, we are in 

a good employment situation right now, full employment, essentially. We have a very good economy right now in the United 

States. But I can remember not too long ago that we didn’t have 

a good economy and we had relatively high unemployment, and 

clearly, those cycles will continue throughout our future. 

With temporary foreign workers, you can calibrate, you have the 

flexibility to calibrate the number of workers to the slots that are 

needed. In case of an economic downturn, you don’t have to issue 

as many permits for foreign workers because there aren’t as many 

jobs. But if all the people who are illegally in the country today are 

allowed to remain here on a permanent status, you don’t have that 

same flexibility in the event of a downturn and this, it seems to 

me, argues against granting permanent legal status to all of the illegal immigrants who are here today. I would like to get both of 

you to comment on that observation. 

Secretary CHAO. First of all, the President is very concerned 

about controlling our borders, serving the American economy by 

matching willing American workers with unfilled jobs. 

17

On the permanent status, the President’s proposal would have a 

3-year stay, which can be extendable for another 3-year stay. The 

total would be 6 years, at which time the worker would have to return back to their home country and apply. That is if the worker 

is already here in the United States. So the President’s proposal 

does not anticipate amnesty or a pathway to citizenship. So that 

is not the intent. 

Second of all, the President is very concerned about the American worker and that is why his plan says that American workers 

come first and employers must determine that no American worker 

is available to fill a job before offering that position to an immigrant worker. 

Senator KYL. Secretary Chertoff, any other thoughts? 

Secretary CHERTOFF. I don’t think I have anything to add to that. 

Senator KYL. OK. It seems to me that the real key, once we have 

done a better job to control the border and instituted a legal worker 

program that meets the objectives, Secretary Chao, that you pointed out, and frankly, those objectives are embodied in the two major 

bills that have been introduced in the Senate, even though they approach it somewhat differently, but the real key is enforcement at 

the workplace. If you can enforce the law at the workplace, if employers have the means of identifying people and they can check 

that through a governmental source and that governmental source 

can then audit the employers and verify that people are not being 

employed illegally, then we are not likely to have a lot of illegality, 

amnesty. We are going to have a rule of law that has once again 

characterized the employment of people in this country. 

Would both of you agree that it is really critical that we have 

workplace enforcement that is as close to perfect as we can get it, 

anyway, that that is the key to this issue? 

Secretary CHAO. I would certainly agree with that. Most of the 

responsibility for employer sanctions is over at DHS. 

Secretary CHERTOFF. I do agree and I think that that means we 

need to be more efficient in allowing employers to verify. Right 

now, I have to say I am kind of appalled to say this, that I think 

when you get a ‘‘no match’’ letter from Social Security, apparently 

the employer proceeds at his or her peril in terms of taking further 

steps to find out what is going on because the law is so confused. 

If you want people to obey the law, I think it is kind of fundamental you let them know how to do it, and I think that is one of 

a number of things we need to change in order to make workplace 

enforcement a real reality. 

Senator KYL. Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

both of you Secretaries for testifying here today. 

I have two questions, really both aimed at Secretary Chertoff. 

The first is very timely. It is the PATRIOT Act reauthorization to 

first responder funding formulas. As you know, we have a bipartisan coalition of Senators, Senator Cornyn and Senator Feinstein 

among them on this Committee, to try and persuade conferees to 

retain the Lowey-Sweeney bipartisan language which was passed 

as part of the PATRIOT Act. You have always said that you, and 

18

the administration position is to make it more needs-based. The 

House does a considerably better job than the Senate. 

So what I would like to ask you today is what you are willing 

to do to try and weigh in on the conference. In the past, Homeland 

Security—before you came in, it is not at your desk—would say, oh, 

yes, we are for needs-based, and then never mixed it in at all and 

we didn’t get a needs-based formula. Would you be willing to lobby 

some of the Senators? The House is united. It only had 40 votes 

against it. The Senate is more divided. Would you be willing to 

lobby some of the Senators personally and ask them to go along 

with the House formula? What can we do? And I only ask this out 

of frustration, because in the past, your predecessor would speak 

about it and then we would ask them to get involved and mix in 

and they were absent. 

Secretary CHERTOFF. I would make sure I get involved in a way 

that doesn’t get me in trouble with the law or anything. But I have 

been unequivocal and I will continue to be unequivocal in supporting risk-based funding and I will be happy to use every legal 

and appropriate means to communicate that to— 

Senator SCHUMER. When I say lobbying, I don’t mean you would 

be hired by somebody. 

Secretary CHERTOFF. Right. I mean, I just get nervous. I have 

been reading the paper— 

Senator SCHUMER. You have been hired by the President and 

this is his viewpoint. 

Secretary CHERTOFF. And I know there are some—well, without 

getting hyper-technical about it, I will—every appropriate means to 

convey my passionate belief that we need to be as needs-based as 

possible. 

Senator SCHUMER. And it is the administration’s position that 

the House bill is more risk-based than the Senate bill and, therefore, preferable, the House formula? 

Secretary CHERTOFF. I think the administration’s position is the 

more risk-based we get, the better we are. 

Senator SCHUMER. And the House bill is, in your opinion, more 

risk-based. 

Secretary CHERTOFF. I think it speaks for itself. 

Senator SCHUMER. OK. I thank you for that, because we really 

need your help. 

The second deals with another issue that affects—some of us 

from States that are on the Northern border. As you know, the 

passport situation has created a huge outcry. I know that you have 

talked about finding alternatives to passports, which I think places 

like Buffalo, New York, and Plattsburg, as well as Seattle and Detroit and other places really appreciate. The problem is that what 

has been talked about so far is the sort of card which would be 

cheaper than a passport but still present the same problems. For 

places like Buffalo, the Niagara River, which separates Buffalo 

from Canada, is more like the Hudson River. It is not like flying 

to Munich. You don’t want to call 3 weeks in advance to say, oh, 

I am planning to go see a show or a ballgame or whatever on this 

side of the river. 

What can be done? Can you give us some idea of how we can deal 

with these issues? We need security. I am the first to agree with 

19

that. We also can’t afford to just slow down commerce to a standstill. This border card hasn’t met with too much favor, at least in 

its initial discussions, because it has some of the same problems 

the passport has. 

Secretary CHERTOFF. Well, of course, we begin with the fact that 

we are dealing with a law and we have to comply with the law. The 

law requires a passport or its equivalent, and I think the President 

was very clear a few months ago when it came up and I have tried 

to be very clear about the fact that we were not looking to make 

passport be the only or the preferred choice, although it certainly 

would be acceptable, but that we were looking for some alternative 

that would satisfy the requirement of accurate documentation. 

Frankly, a card, and we all carry cards in our wallet. I carry a 

driver’s license. A card seems an efficient way, particularly for people on the border, and I well understand there are people who go 

back and forth multiple times a day— 

Senator SCHUMER. Right. 

Secretary CHERTOFF [continuing]. It seems that we have got to 

find some way to get them a card that is cheap, that satisfies the 

legal requirement, but that is as convenient to carry as walking out 

of the house with your driver’s license— 

Senator SCHUMER. The only other criteria I add, and then I will 

conclude as my time is concluding, but it also has to be—it has got 

to be secure, but it has got to be relatively—it has got to be quick 

and easy to get. Do you agree with that? 

Secretary CHERTOFF. I agree, and I think we are going to face 

that challenge as we were with the Real I.D. Act. 

Senator SCHUMER. Right. 

Secretary CHERTOFF. We have some time to do this and we are 

working hard to make sure we do it right. 

Senator SCHUMER. Thank you, Mr. Secretary. Thank you, Mr. 

Chairman. 

Chairman SPECTER. Thank you, Senator Schumer. 

Senator Coburn? 

Senator COBURN. Thank you, Mr. Chairman. I apologize for being 

late. 

I listened with interest to Senator Kennedy’s questions on you in 

terms of the ten to 12 million people who are here. My question 

really deals with the fact that if somebody is here illegally and the 

real basis for our society is recognition of the law and equal justice 

under the law and if they come here illegally, building a case for 

amnesty, no matter which way you call it or how long it takes, the 

fact is, you undermine that tremendous important aspect of being 

an American is recognizing that we are all treated equally under 

the law. 

If we have the President’s program in terms of enhancing border 

security, enhancing enforcement, enhancing the return of those 

that are here illegally, and then enhancing in some way those that 

are here already illegally to give them a period of time to come 

back and do it properly, can you envision a way where we can impact that thought that you have to follow the law? I will tell you, 

to the people of Oklahoma, amnesty is a terrible word to them— 

Secretary CHERTOFF. Right. 

20

Senator COBURN [continuing]. Because it didn’t work last time 

and if we start talking about it now, what you are going to see is 

more pressure on the border. How do we implement this idea of 

making people who want to come here and be a part of our society 

understand the rule of law? 

Secretary CHERTOFF. Let me begin, Senator, by saying the President has been crystal clear, it is certainly embodied in the administration’s view, that there is not to be an amnesty here. This is not 

to be a way for people to line-jump to permanent residents or a 

path through which they can get to permanent resident or citizenship. What it is designed to do is to regularize an existing situation 

and channel people into a way of dealing with work that will ultimately get them back to their own countries and it focuses on the 

employer as well as the employee, and let me just take 1 minute 

to explain what I mean. 

The driver here is the demand that employers have for the work. 

As long as employers are going to be willing to hire people who are 

here illegally, people are going to come in. The question is, can you 

give employers a way to do that using a combination of carrot and 

stick that will put them into the regular channel so that people are 

coming, they are registered, they have identification, we can track 

them, and also we build a set of economic incentives that ultimately actually gives them incentives to go back home when they 

have made some money. What that would do is that would bleed 

out a significant amount of the pressure on our border enforcement 

people and let us now focus on the worst of the worst. 

Clearly, amnesty would be an affront to the rule of law. It would 

be an affront to those who are legal, who are waiting their turn. 

The key is how do you manage a very, very difficult situation. 

Senator COBURN. So my followup question to that is at the end 

of the third year, and then the second, third year and somebody 

has not complied, what do we do? 

Secretary CHERTOFF. I think at that point, you are out of the program, but by then, we have tracked you. We know where you are. 

We have your address. And also, if the program is designed properly, money that, for example, is set aside for retirement winds up 

only being available to the migrant if the migrant goes back home 

to get the money. So the migrant now has a pretty strong economic 

incentive to go back to that original place in order to get their retirement or benefits. 

Senator COBURN. But again, I want you all to think about the 

contrast. We have a law, and the predicament that Senator Kennedy set up is it is the law, but it may cost too much to enforce 

it, so we won’t enforce it. That is the antithesis of this whole country. If it is the law, either we change the law or we enforce the law. 

So at the end of 6 years, what do you perceive will happen with 

the President’s program, Secretary Chao or Secretary Chertoff? 

Secretary CHAO. I think we are all in agreement that enforcement is a very important part of maintaining a culture of rule of 

law and also of securing our Nation’s borders. But we have also 

found that enforcement alone will probably not be the entire answer, either. So there must be some way to track these 11 million 

people who are here illegally and the temporary worker program 

is an attempt to address that. 

21

Senator COBURN. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Coburn. 

Senator Brownback? 

Senator FEINGOLD. Mr. Chairman? 

Chairman SPECTER. Pardon me. We should go to Senator Feingold, who just came. 

Senator FEINGOLD. Thank you, Mr. Chairman. Thank you, Senator Brownback. I am pleased that the Committee is once again 

taking up the critical issue of comprehensive immigration reform. 

We will all be better off if we create a realistic immigration system 

that recognizes that American businesses need foreign workers 

sometimes, that allows them to come to the United States legally, 

that protects their rights in the workplace, and that ensures that 

the government knows who is entering the country. 

Immigration reform is important for all of these reasons, but I 

also want to mention again the importance of this issue to our 

economy. I am hearing more and more every day from business 

owners in Wisconsin telling me that sometimes they cannot find 

local workers to fill their jobs and that they desperately need to see 

changes in the immigration system in order to stay in business. 

But I do want to take a few of the minutes here to ask about 

a somewhat different issue, which I understand Senator Kennedy 

has mentioned. I support vigorous enforcement of our immigration 

laws, but I am concerned about this incident that occurred on July 

6, 2005. Immigration and Customs Enforcement officials impersonating OSHA employees publicized what they characterized as a 

mandatory OSHA safety training for workers at the Seymour Johnson Air Force Base in Goldsboro, North Carolina. Once workers arrived at the meeting, the ICE officials disclosed that there was no 

safety briefing and subsequently arrested 48 undocumented workers. 

Secretary Chao, a Labor Department spokesperson said at the 

time that, quote, ‘‘This is not something we were involved in and 

we do not condone the use of OSHA’s name in this type of activity.’’ 

Secretary Chao, do you agree that the actions taken by ICE undermines OSHA’s credibility and harm your agency’s effort to address 

workplace safety issues for all workers? 

Secretary CHAO. The short answer is, I do. As mentioned, no one 

at the Department of Labor or at OSHA was involved in this decision or the enforcement action itself, nor did we have any advance 

notice of it, and we have conveyed our gravest concerns to the Department of Homeland Security and the Secretary. 

Senator FEINGOLD. Thank you for that answer. 

Secretary Chertoff, I and a number of other Senators just sent 

you a letter about this incident, asking for further information. I 

realize you may not have had a chance to review it and I do appreciate your response to Senator Kennedy’s questions about this incident. Can you commit to respond to that letter expeditiously? 

Secretary CHERTOFF. Yes. 

Senator FEINGOLD. I would like to understand how this incident 

came about. Did the ICE investigators who put together this ruse 

in North Carolina contact OSHA or anyone else at the Labor Department to ask their views on it before implementing the plan? 

22

Secretary CHERTOFF. I don’t know. I mean, I will have to—as I 

say, I became aware of this yesterday and the facts, I think, will 

have to be looked into and I will give you—we will respond with 

a factual summary. 

Senator FEINGOLD. I look forward to that information. I took Secretary Chao’s comments to be that you believe that there was not 

this kind of contact. Did you say that in your previous response to 

me? 

Secretary CHAO. Yes. 

Senator FEINGOLD. I thought you said that there was no such 

contact. 

Secretary CHAO. No one at the Department of Labor nor OSHA 

were advised in advance of this plan. 

Senator FEINGOLD. According to news reports, Secretary 

Chertoff, representatives from the Labor Department, Justice Department, and Homeland Security were going to meet to discuss 

this incident. Can either of you tell me if that meeting has occurred? 

Secretary CHERTOFF. I don’t know off the top of my head. We can 

find out. 

Senator FEINGOLD. Secretary Chao, has that meeting occurred? 

Secretary CHAO. My understanding is, yes, it has. 

Senator FEINGOLD. Can you tell me he results of that meeting, 

then, Secretary Chao? 

Secretary CHAO. May I submit that for the record? 

Senator FEINGOLD. Yes. 

Secretary CHAO. There was a discussion at the appropriate levels 

with the Department of Homeland Security. There was concern expressed as to how this plan was hatched, what happened, why was 

it initiated. There was a great deal of concern expressed. 

Senator FEINGOLD. I look forward to receiving that information 

in writing and as thorough as is possible and as soon as possible 

and I thank you for that. 

Secretary Chao, correct me if I am wrong, but I don’t believe 

your testimony covered the issue of visa portability. Do you agree 

that allowing workers to switch jobs on the same visa would help 

to protect workers from exploitation by unscrupulous employers 

who could otherwise threaten to get them kicked out of the country? 

Secretary CHAO. I think the goal here, of course, is to protect 

American workers first. The Department of Labor also has responsibility to enforce labor standards and health and safety rules 

across the board. So we are concerned about workers being taken 

advantage of. We are also trying to balance, again, the security 

issues, as well. So it was thought that if workers were able to apply 

for this visa, that they would have an opportunity with, let us say, 

a 45-day grace period if they left one job to be able to go to another. 

But these are proposals. That is the best effort—best attempt at 

trying to balance both those needs. So we would be interested in 

your point of view if you have a different point of view. 

Senator FEINGOLD. I thank both of you. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Senator Brownback? 

23

Senator BROWNBACK. Thank you, Mr. Chairman, and thanks for 

holding this important hearing. I like your new hairdo. It looks 

sharp. 

Chairman SPECTER. Thank you very much. I am glad to have it 

recorded on television. 

[Laughter.] 

Senator BROWNBACK. I am appreciative of all your work and all 

the key topics you are bringing up, this one amongst them. 

Secretaries, thanks for being here. There was a report out two 

or 3 weeks ago that we now have a higher level of illegal immigration than legal immigration into the United States. Is that accurate? That was in, I believe, a Pew study. 

Secretary CHAO. I am not actually—I am not familiar with that 

and— 

Senator BROWNBACK. Secretary Chertoff, are you familiar with 

that? This is a Pew study that was out a few weeks ago. 

Secretary CHERTOFF. I saw the article. I think I said earlier, I 

am always a little—I always question to some degree some of these 

studies or surveys because I am not quite sure how they are constructed, so I am not in a position to verify or dispute it. 

Senator BROWNBACK. Obviously, we have a high level of illegal 

immigration in the— 

Secretary CHERTOFF. That, I agree with. 

Senator BROWNBACK. Do you have any idea why we have so 

much higher illegal immigration than maybe we used to and certainly a high level relative to our legal immigration into the United 

States? 

Secretary CHERTOFF. Of course, this has been a problem that has 

been around for 15, 20 years. I remember when I was U.S. Attorney in the early 1990’s, going down to the border with U.S. Attorneys and being shown—this is before the fence—being shown people waiting to run across the border. 

Why it is higher now, I suspect is partly a function of the labor 

market, that there is now an intense demand for workers that is 

not being met and I think that comes back to the point of the temporary worker program, that— 

Senator BROWNBACK. Let me jump into that one, because my 

time is going to run real fast. It looks like, when I have looked at 

these numbers in the past, I mean, I think you have got the right 

combination. You have to have both enforcement and some sort of 

work program, and I want to cite to you some numbers off of that. 

There may be some of my colleagues that would say, well, I am not 

sure that that is an accurate reflection of today’s situation, but in 

1954, we had a big increase in enforcement actions combined with 

an increase in the then-designed Bracero program that led to a 95 

percent reduction in illegal immigration. Are you familiar with 

those numbers, or is that an accurate reflection of that time? 

Secretary CHERTOFF. I have heard about the program. The numbers, as I say, I can’t verify or disagree with. I just don’t have them 

on the top of my head. 

Senator BROWNBACK. I would appreciate you taking a look at 

that, because that is quite striking if that is, indeed, what the combination can produce. 

24

I noted in 1964 with the ending of the Bracero program, it triggered a 1,000 percent increase in illegal immigration by 1976. 

Twelve years, 1,000 percent, and the raw numbers are even more 

striking than that. We had, I can get down to this, INS apprehensions in 1964, 86,597; in 1976, 875,915. I hope you can take a look 

at that, because it seems like the model is accurate. Now, the devil 

is in the details in how to get that done. 

Perhaps, Secretary Chao, this would be best for you. I have 

heard numbers that we have as high as, in the use of Social Security numbers and bad Social Security numbers or illegal ones, 

400,000 that claim the Social Security of all zeroes? My guess is 

some of those are illegal if that is indeed the case, but— 

[Laughter.] 

Secretary CHAO. Enforcing employer sanctions is not in my Department. It is in the Department of Homeland Security. 

Senator BROWNBACK. Secretary Chertoff? 

Secretary CHERTOFF. You know, I don’t know of it for a fact, but 

I can believe it. As I said earlier, I find one of the most frustrating 

aspects of what employers face is some uncertainty about what 

they can do when they get a ‘‘no match.’’ Common sense would tell 

you if you get a ‘‘no match’’ on Social Security or a Social Security 

card with all zeroes, at a minimum, you should be able to ask some 

questions. I am informed that there are all kinds of legal issues 

about whether the employer is going to get in trouble if he or she 

does that. At a minimum, we ought to clarify that an employer who 

has got some kind of notice that there is something funny with a 

document ought to be able to do the kind of inquiry to get to the 

bottom of it. 

Senator BROWNBACK. If we could, and I know this can be touched 

and hopefully the next panel can address some of this, but it seems 

to me that is one of the simple ways we ought to be moving forward, is if this isn’t a match, then it ought to have an immediate 

notification and something in the system that that would be a way 

to go. I think we have got a model in the past, it is not a perfect 

fit, but how you mix both the enforcement with a good work visa 

program for a way to move forward so that we have got a model, 

and now getting the details of getting that to move forward will be 

helpful. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Brownback. 

Senator Sessions? 

Senator SESSIONS. Thank you, Mr. Chairman. 

Mr. Chertoff, the American people are not happy with the way 

the system is working. I notice in your written statement, you indicated that enforcement will not wait for enactment of a new temporary worker program. In your verbal statement, I am informed 

that you said, once we have the new worker program in place, we 

must couple it with enhanced enforcement. 

I am not sure when this new worker program is going to pass. 

Certainly, I don’t think it is going to pass in the form that has been 

suggested by the administration. So are you going to get busy now 

to enforce existing law? 

Secretary CHERTOFF. Well, we are busy. I mean, I don’t want any 

ambiguity about this. Not only are we going to get busy, we have 

25

gotten busy. As I have demonstrated, for example, with respect to 

non-Mexicans from Brazil, we ran an operation in Texas. We have 

got 1,500 Border Patrol that now have been appropriated. We are 

going to get those online and we are going to move over the next 

year from a catch-and-release for non-Mexicans toward a catchand-remove to non-Mexicans. So we aren’t going to wait and we 

haven’t waited. 

The point I made in my oral statement is that, ultimately, to be 

effective, I think in a way that I think we need to be, we are going 

to need more than just brute enforcement. We are going to need 

a temporary worker program, as well. 

Senator SESSIONS. I just want you to know how strongly I think 

the American people care about this. We know that we need workers in this country, and we have some great people that come into 

our country from many countries who work well and contribute to 

our economy and many of them bring brilliance and technology and 

skills that help us fight disease and make scientific advancements 

also. 

But I was a little troubled when you lightly dealt with the question of 400,000 people with zero Social Security numbers. I mean, 

that is a big deal. Also, I note that in 2003, I believe, there were 

about 15 employers sanctioned for hiring illegal workers in an improper way. Do you know what the numbers are this year and 

what they were in 2004? 

Secretary CHERTOFF. Yes. In 2004, on the criminal side, we 

had—worksite enforcement led to 67 indictments and 46 convictions. In 2005, it was 140 indictments and 127 convictions. In 

terms of administrative sanctions, in 2004, I think we had 685 arrests and in 2005 we had 1,358, of which 832 were from critical infrastructure facilities. So we are increasing the tempo and pace of 

our worksite enforcement, but we need to continue to do more— 

Senator SESSIONS. That is some progress, but it is still awfully, 

awfully small, as I think you would admit. What I would suggest 

to you and what I would say to many people who think this is a 

hopeless matter, that it is really not. If we enhance our enforcement actions against businesses, if we eliminate areas through 

fences and enforcement on the border, we enhance the ability for 

people to come legally with a biometric identifier so they can come 

and go, this thing can tip and you can make huge progress. 

I notice you talk about the other-than-Mexicans and the progress 

you are making with Brazil, but it still—there are many other 

other-than-Mexicans than Brazil. As I understand it, it is about an 

80 percent chance that if you are apprehended coming into this 

country from a nation other than Mexico, that you will be released 

on bail, and over 90 percent do not show up for the court hearing. 

Is that still true, and what plans do you have to deal with all of 

these countries? 

Secretary CHERTOFF. That has certainly been the historic situation and that is one of the reasons the first thing we initiated in 

the last month or so was getting 1,800 additional beds, cutting the 

time in beds, and moving from a catch-and-release to a catch-andremove. 

I completely agree with you. This is one of those areas where 

there is a tipping point. We saw it with the Brazilians. In fact, we 

26

continue to see a decrease in the number of Brazilians. Part of that 

is because the Mexicans have actually now reversed their position 

and are now no longer allowing Brazilians to go in without visas, 

which is a positive step. 

But I completely agree with you. This is an area we can have an 

impact in 1 year in tipping away people coming in from outside 

Mexico. I think that would be a very important step forward. 

Senator SESSIONS. My time is up. I would just advise and ask 

that you not wait for Congress to promote these ideas. I think you 

should be bringing them forward and asking us to help you achieve 

lawfulness in immigration. 

I would also offer, Mr. Chairman, for the record, a letter that 

Congressman Lamar Smith asked me to make a part of the record, 

and I would be pleased to, that responds to some of the administration positions, and also a letter signed by 81 Congressmen emphasizing the enforcement needs to come first before we deal with the 

overall issues of immigration. 

Chairman SPECTER. Without objection, those documents will be 

made a part of the record. Thank you, Senator Sessions. 

Senator Durbin? 

Senator DURBIN. Thank you very much, Mr. Chairman. My appreciation to both of you for joining us today on this really complicated issue. 

My mother was an immigrant to this country. She was brought 

here at the age of two, came over with her mother and brother and 

sister, and I am sure as they walked down the ramp at Baltimore, 

Maryland, people looked up and said, ‘‘Not more of those people.’’ 

I am glad that she came and I am glad that my grandmother and 

grandfather had the courage to come and I hope we don’t overlook 

that. 

The people who make the decision to cross this border and come 

here leave behind a lot—their language, their culture, their family, 

their relationships, their churches, their villages. They come here 

with a special quality of courage that has really made this a much 

different country, a much better country. I hope that as we consider how we deal with a sensible immigration system, we never 

overlook the fact that they bring a lot of value to this Nation. 

I have met them, and I am sure you have, too, and worked with 

them, and many of these people who are clearly undocumented are 

really adding to America, making really beneficial contributions, 

not just to the economy, but to who we are and our values. Those 

who just view them in negative terms don’t know them and don’t 

know the lifestyle and the values that they bring to us. 

What I need to find out in the short time we have together is 

to ask you what the administration thoughts are on a couple of 

things. First, does the administration agree that there should be a 

path to permanent residence for immigrants who work hard, pay 

taxes, play by the rules, and learn English? 

Secretary CHAO. I think the administration has said on many occasions, and the President has, as well, that we have—first, we 

have put forth five principles, which I won’t go into at this point, 

but that there should not be a pathway to citizenship. 

Senator DURBIN. There should not be? 

27

Secretary CHAO. There should not be an automatic pathway to 

citizenship under the— 

Senator DURBIN. Could you clarify the word ‘‘automatic’’? 

Secretary CHAO. Under the President’s proposal, we would try to 

bring out those undocumented workers who are currently living in 

the shadows. Our goals are to control our borders. Second is to 

serve the American economy by matching workers with unfilled 

jobs. Three is promote compassion for immigrant workers. Four is 

to provide temporary workers with the incentive to return to their 

home countries. And fifth is to protect the rights of legal immigrants. 

So the administration’s plan is not an amnesty for illegal immigrants and it does not— 

Senator DURBIN. What— 

Secretary CHAO. We feel that an automatic pathway to citizenship would reward those who have violated our laws. 

Senator DURBIN. So you are opposed to creating a pathway to 

permanent residence for immigrants who have lived in this country, have paid their taxes, have not broken the law, and have some 

command of the English language? You would not open a pathway 

to legal residency to them? 

Secretary CHAO. We would ask that temporary workers come and 

work for—there are two types, obviously, those who are out of the 

country and those who are in the country. For those that are in the 

country, which is what we are talking about— 

Senator DURBIN. Yes. 

Secretary CHAO [continuing]. We would ask them to sign up for 

the temporary worker program for 3 years and they can extend for 

another three years for a total of 6 years, and at which point we 

would ask that they return to their home country. 

Senator DURBIN. So there would be no pathway to residence. Let 

me ask you about— 

Secretary CHAO. They can apply for the program and come on 

back— 

Senator DURBIN. They can continue to work, but they wouldn’t 

have any opportunity or pathway to legal permanent residency, as 

I understand your description. 

Secretary CHAO. They would not have a legal pathway to citizenship, no. 

Senator DURBIN. Let me ask you about a specific group, then. 

There are thousands of undocumented students in this country 

whose parents brought them to the United States when they were 

children. They grew up here. They have excelled in school. They 

know no other country. I had a particular case of a young woman 

who was accepted at the Juliard School of Music, a child prodigy, 

a Korean American, it turns out was undocumented, the only person in her family who was. When I contacted the then-INS and 

asked them what to do, they said she has to go back to Korea. She 

had been here since the age of two. 

So I want to ask you, I have introduced a bill with Senator Hatch 

called the DREAM Act which would allow for students in this circumstance an opportunity, if they played by the rules, haven’t violated the law, been here at least 5 years, completed their education, and plan to attend college or even serve in the United 

28

States military, that they would then have a pathway to legal residence, permanent residence, and ultimately citizenship. What 

would your position be, if not on this particular bill, on this concept 

of giving these children that opportunity? 

Secretary CHAO. Obviously, Senator, as you can guess, I am not 

ready at this point to express an opinion about the DREAM Act. 

No. 2, I think at this point, the President has made his principles 

quite clear. We are very willing to work with Congress, but the 

principles are that we do not support an automatic pathway to citizenship. 

Senator DURBIN. Well, keep— 

Secretary CHAO. For children, I don’t know. 

Senator DURBIN. Add the word automatic, and I don’t want it to 

be automatic. I think that these immigrants would have to earn 

their way into a position of possibilities and opportunities and they 

could lose it by doing the wrong thing. So it is clearly not going 

to be automatic. I think that may be a difference here, but at the 

risk of pushing it too hard and too far, I will stop at this point and 

ask the administration to take a look at this bill more closely. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Durbin. 

Senator Grassley? 

Senator Grassley. Thank you, Mr. Chairman. 

Secretary Chertoff, today, the Inspector General of Homeland Security issued a report requested by me and Congressman 

Hostettler stating that the Citizenship and Immigration Service 

fails to accurately count H–1B visas, and these are handed out 

yearly, a cap of 65,000. CIS went above that cap set by Congress, 

so that clearly is that Homeland Security is breaking the law. 

What is worse is that they know they are violating the law and 

they will continue to violate it if they maintain the counting system 

that they have today. I don’t know how this agency can possibly 

implement a guest worker program and keep track of ten million 

aliens when they cannot even count 65,000 each year. 

So I don’t have a question for you now, but I would like to have 

your, not your assurance, but your reassurance, because I have had 

assurance before, that you will make the agency change their ways 

and stay within the number set by Congress. 

Secretary CHERTOFF. We will, Senator. Let me, if I can, just take 

a moment to say that I think that we have already changed the 

model in this respect. That problem, which I think occurred last 

year, occurred because when they estimate in terms of receiving 

applications what the cutoff is, at which point you hit 65,000, since 

you don’t know how many people are actually going to make their 

way through the process with the application, what they were 

doing was that everybody who applied on the last day was getting 

in and that exceeded the cap. 

What they have now done is we issued a regulation saying that 

on the last day, when you hit the upper limit, to keep within the 

limit, we will operate a random system so that not everybody who 

comes on the last day will get within the cap. It will just be a random luck-of-the-draw type of deal. That should cure the problem. 

Senator GRASSLEY. I sure hope it does. 

29

Also for you, I want to say that I understand that the Citizenship 

and Immigration Service has a program known as FOCUS. This 

program reviews applications for immigration benefits, like green 

cards for citizenship, where national security concerns are identified. In some cases, applicants may be on the Terrorist Watch List 

or the FBI is watching them and they could be an associate of a 

terrorist fundraiser. Rather than simply denying these applications, the agency has allowed them to pile up while trying to get 

more information about them. People within CIS are saying that 

there are major problems with getting the information because, too 

often, law enforcement still doesn’t want to share details with nonlaw enforcement people. Now, I don’t understand that, being in the 

same Department, working for the same agency head, why somebody doesn’t want to share information, but that is what I am getting, that they don’t want to share the information. I have been 

told that there are hundreds of these cases and one estimate was 

as high as 1,400. Yet the total number of people working on this 

FOCUS problem is about four or five. 

If your Department can’t adequately deal with security concerns 

in the processing of six million applications per year, I would question the Department’s ability to deal with a massive increase in applications that would come as part of a guest worker program. It 

leads me to believe that CIS is more worried about customer service than national security. 

Now, I wrote you on September 21 about Project FOCUS and 

benefit fraud and I have not yet received a response. My question 

is, 4 years after 9/11, we are still hearing that people applying for 

immigration benefits are not properly screened. Name checks are 

too narrow, unreliable, and inadequate. Even when there is a hit, 

CIS is not aggressive enough in finding ways to deny the application. All the emphasis seems to be on backlog reduction, and if a 

few hundred people slip through the cracks if they have ties with 

terrorists or criminal organizations, that seems to be an acceptable 

risk, and I don’t think it is acceptable. So what do you think and 

what are you going to do to put emphasis back on security? 

Secretary CHERTOFF. Well, we do think security is important, 

and one of the things I actually—I think I said in testimony not 

before this Committee but elsewhere in July was we need to reconfigure the model in which CIS operates and consider the possibility 

of having, before we give people—before we accept applications and 

let people come in on a temporary basis or be here on a temporary 

basis, we ought to reverse the process and do the checking or most 

of the checking first so they don’t get in. We don’t consider their 

application complete until we have done a lot of the background 

checking. That is not going to happen instantly, but that is what 

we are aiming to in terms of a model going forward. 

As far as the name checks go, I mean, we have worked with the 

FBI in terms of getting quicker response. I think we all know that 

sometimes the name checks are not necessarily accurate, and we 

see that with TSA. So it is fair to dig a little bit deeper. But I share 

your concern, as I said in July, about the idea that people are going 

to be here for a long period of time while we are reviewing a national security issue. That is not a sensible way to proceed and that 

is what we are going to have to correct. 

30

Senator Grassley. Mr. Chairman, we set up the Department of 

Homeland Security so all of these agencies would be under one roof 

so that we wouldn’t have these separate smokestacks with information being held by the separate Departments. There is just no reason for not having this information, particularly within one Department, shared by others in the Department when it is needed. 

Chairman SPECTER. Senator Grassley, you are right. Thank you. 

I would like to move ahead with the second panel, but I have had 

a request from Senator Cornyn for another 5 minutes and I don’t 

want to curtail any line of questioning while we have the two Secretaries here. If there is a request from others, I will accede to 

that, as well, with one eye on the clock. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. I am grateful. It is 

a wonderful opportunity to have these two Secretaries here and 

talk about something that is obviously so important. 

I wanted to ask Secretary Chao about the administration’s rationale for requiring those who qualify under this temporary worker program to return to their country of origin after their permit, 

basically, their time here is completed. As you know, there are at 

least two major Senate bills that deal with this whole issue, comprehensive immigration reform, and really what I am focusing on 

is this principle of work and return as opposed to work and stay. 

I might also ask you to comment, this would not be, as I understand it, to the exclusion of other paths for legal permanent residency and citizenship that would exist under current law. Could 

you please comment on that? 

Secretary CHAO. The administration’s proposal of requiring that 

workers stay for 3 years with a possible 3-year extension but then 

must spend 1 year outside the U.S. before readmission to the temporary worker program as one way to ensure that there is respect 

for the rule of law, that there is not, again, an automatic way to 

come into this country. So this is an effort at basically ensuring 

that there is some kind of a penalty and some kind of a fresh start 

for the worker when they leave so that they can come back and 

come under a legal program, be legal, and start their life anew. 

Senator CORNYN. Looking long-term at the causes of illegal immigration, no doubt the development disparity between countries 

like Mexico and the United States, Central America, the United 

States is a great place to work and make better money than you 

can make in many of the places that people emigrate from. I happen to believe that it is important that we provide incentives for 

people to return to their country of origin as part of this program 

with the savings and the skills that they have acquired working in 

the United States on a temporary basis because no country’s economy could withstand the permanent exodus of its workers. And, I 

think in terms of causes of illegal immigration with respect to the 

overall comprehensive policy, that makes a lot of sense and I appreciate your comments. 

Let me ask quickly, Secretary Chertoff, of course, the 9/11 Commission focused on removing barriers to information sharing, and 

Senator Grassley just referred to one aspect of that, transforming 

our government’s system, previously described as a ‘‘need to know’’ 

with a ‘‘need to share.’’ I am a little concerned about some proVerDate 0ct 09 2002 15:11 Nov 15, 2006 Jkt 030759 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30759.TXT SJUD4 PsN: CMORC
31

posals that would restrict the access of employment verification 

data from law enforcement personnel, including immigration enforcement. Do you share that concern? Would you encourage the 

Congress to adopt policies that provide encouragement for information sharing even in that context? 

Secretary CHERTOFF. I am not aware of the specific proposal you 

are mentioning. I, in general, believe we ought to share information. There is very little percentage in keeping people in the dark 

like mushrooms. 

Senator CORNYN. How about, for people who apply for this or any 

other program that the U.S. Government may have, would you 

agree that it is a bad idea to issue employment and travel authorization to aliens before their background screening is completed? 

Secretary CHERTOFF. I think one of the issues we identified when 

we reviewed the operations of the Department over the summer 

was that the problem with doing precisely that, that under the current situation where people get access to the ability to come in and 

work while we are processing their background checks, it seems to 

me that is a vulnerability and we need to reverse that. I don’t want 

to understate the magnitude of the task. The system has now been 

built a certain way. It has to be reengineered. We have a new 

nominee, I think he is actually coming to testify today before the 

Committee. We are very interested in beginning that reengineering 

process. 

Senator CORNYN. Thank you. Thank you very much, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Durbin has requested another five-minute round. Senator Durbin? 

Senator DURBIN. Thank you, Mr. Chairman. 

I would like to ask Secretary Chertoff about Hurricane Katrina. 

I am finding it difficult to follow the administration’s policy here. 

After 9/11, are you aware of the fact that the Commissioner of the 

INS, Mr. Ziglar, made an announcement that people who thought 

they had lost friends or family in the World Trade Center and contacted local authorities, that they could do so without fear that the 

authorities would use the information that they obtained for immigration purposes and deportation. That was the policy of the Bush 

administration after the 9/11 tragedy. 

After Hurricane Katrina, it appears there is a different policy. In 

fact, it is my understanding that several hurricane victims or people who have come forward to agencies have been deported or 

placed in deportation proceedings, which is totally different than 

the approach that was used with 9/11. 

The same question arises when it comes to the policy of this administration as to workers. In the aftermath of Katrina, the administration suspended the Davis-Bacon Act and waived sanctions for 

employers who hired undocumented immigrants. This gave employers the ability to hire these people at below-market rates which 

could, of course, negatively impact workers. 

I am trying to figure out what the position is here. It appears 

that if undocumented immigrants, workers, can be hired for the 

purpose of reconstruction of Hurricane Katrina, then they are welcome in the United States for that purpose. But if they should ask 

32

for help as victims of Hurricane Katrina, unlike 9/11, they are subject to deportation. Reconcile this for me, if you will. 

Secretary CHERTOFF. Well, first of all, the issue of whether people can call in and find their missing relatives, I am not aware of 

any—I mean, I think there were a number of telephone lines, 

frankly, or online ways of doing that. I don’t know that anyone who 

wanted to find a missing relative was required to prove their citizenship status. 

But I will tell you that the law forbids us to pay benefits to illegal immigrants. I mean, that is the law. So if somebody came forward and said, ‘‘I am an illegal immigrant. I lost my house,’’ or 

they said, ‘‘I lost my house,’’ and it emerged they were an illegal 

immigrant, they would be in violation of the law if we gave them 

benefits. 

I think our general policy was we are not looking to turn this 

into a law enforcement exercise. On the other hand, we are going 

to comply with the law. 

As far as the Davis-Bacon Act, and maybe Secretary Chao has 

more insight than I do, I don’t understand that to have green-lighted letting illegal aliens be hired. 

Senator DURBIN. No, that wasn’t the part, Mr. Secretary. First, 

the people I am talking about who were deported weren’t asking 

for a free house from the government. They were usually asking for 

food and water. 

Secretary CHERTOFF. I don’t know that we—I mean, I think 

when people handed out food and water and medical care, I don’t 

know of any policy that said, ask for people’s citizenship first. 

Senator DURBIN. But do you know, in fact, they were deported 

or placed in deportation proceedings in several instances? 

Secretary CHERTOFF. I must tell you, Senator, I don’t know the 

facts of the specific case. I don’t know how someone became aware 

someone was here illegally, and if they did—you know, once someone becomes aware of a violation of the law, I think at that point, 

it is often incumbent on them to take action. Now, were these local 

officials, State officials? I don’t know. I can tell you there was no 

policy to turn relief efforts into a hunt for illegal migrants. But at 

the same time, it was clear that if someone was an illegal migrant 

and was seeking to get, for example, benefits—and I am not talking 

about food and water, but, I mean, something like— 

Senator DURBIN. That is exactly what happened here, Mr. Secretary. These were people seeking refuge at the Judson Williams 

Convention Center in El Paso along with other evacuees and they 

were deported or placed in deportation proceedings, and I hope you 

will look into it. 

And the second point is, it is not Davis-Bacon. Davis-Bacon was 

part of the decision to diminish the wages of those who would rebuild Hurricane Katrina. But it was the second part, the decision 

of the administration to waive sanctions for employers who hired 

undocumented workers in Hurricane Katrina reconstruction. 

Doesn’t it strike you as an inconsistent policy of this administration to look the other way in one instance and then to deport people seeking the basics of life at these evacuation shelters? 

Secretary CHERTOFF. I have to say something. I am just not 

aware of a decision to allow people to hire illegal workers. I just— 

33

Senator DURBIN. Well, I can tell you I have sent you two letters, 

September 14 and September 22, asking for you to please respond 

on this issue— 

Secretary CHERTOFF. Well, I will look into them. 

Senator DURBIN [continuing]. And I know you are very busy and 

I want you to focus on the reality of this disaster, but please, get 

somebody in your office— 

Secretary CHERTOFF. Sure. I will. 

Senator DURBIN [continuing]. To take a look at it and I think you 

will find that the facts I have raised really raise serious questions 

about the consistency of this policy with the administration. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

In the absence of hearing any other voice, we are going to proceed to panel two. 

Secretary Chao and Secretary Chertoff, thank you for your distinguished contribution to our country and thank you for being at 

the hearing today and let us keep working and see if we can’t find 

the answer. 

We move now to panel No. 2, to Mr. Frank Sharry, Executive Director of the National Immigration Forum; Mr. Mark Krikorian, 

Executive Director of the Center for Immigration Studies; and Dr. 

Douglas Massey. 

Mr. Sharry is the Executive Director of the National Immigration 

Forum, a Washington, D.C.-based organization with membership of 

over 250 organizations nationwide. He had been Executive Director 

of Caentro Presente, an agency that helps Central American refugees in the Boston area. He also led efforts to resettle refugees 

from various countries, including Vietnam and Cuba. 

Thank you very much for joining us, Mr. Sharry, and we look forward to your testimony. 

STATEMENT OF FRANK SHARRY, EXECUTIVE DIRECTOR, 

NATIONAL IMMIGRATION FORUM, WASHINGTON, D.C. 

Mr. SHARRY. Thank you, Mr. Chairman. Thanks for this opportunity to all the members of the Committee. 

Please allow me to start with my main recommendation. I urge 

this Committee in the strongest terms possible to take action on 

immigration reform and soon. The challenge is too great, the need 

too urgent, and the stakes too high to allow the vacuum to be filled 

by piecemeal proposals that sound tough but solve nothing. On the 

other hand, if you move forward with dispatch and courage, it will 

be this Committee that sets the tone and the direction for this Congress. 

Now, we all know that immigration is a controversial issue that 

defies easy solutions. One reason for this is that there are two 

seemingly opposed frameworks for addressing it. One side says, get 

tough. The other side says, open up. And for too long, this either/

or argument has led to polarization and paralysis. 

If we are to solve this problem, if we are to move beyond the 

failed strategies of the past, we need a new and broader framework. We need a both/and perspective, one that involves getting 

tough and opening up. 

34

As I am often asked, what is the solution to reduce illegal immigration, it is usually put this way. Are you in favor of toughening 

up immigration enforcement or in modernizing our immigration 

laws? My answer is, yes. 

Senator Kennedy captured this both/and approach recently when 

he said this. Enforcement and legality are two sides of the same 

coin. This is the insight at the heart of the McCain-Kennedy bill. 

It is the insight at the heart of the Cornyn-Kyl bill. And it is the 

insight at the heart of the White House principles for reform that 

we just heard articulated. All of these proposals seek to integrate 

enforcement and legality so that they no longer push apart but instead pull together. 

Now, for a range of constituencies from across the spectrum and 

across the country, the McCain-Kennedy bill is the fullest expression of this both/and approach. It has the right architecture and 

the right elements. It is bipartisan, it is comprehensive, and most 

importantly, we believe it will be workable, which leads me to my 

second recommendation, that this Committee use the McCain-Kennedy bill as the template for Senate Judiciary Committee action. 

To improve on it, the Committee should incorporate the best 

ideas from the other serious proposals on the table put there by 

other Senators as well as by the White House. What should the 

Senate Judiciary Committee bill include? 

On the enforcement side of the coin, a robust combination of, one, 

border enforcement that integrates professional law enforcement 

and state-of-the-art technology. 

Two, workplace enforcement that makes it virtually impossible 

for employers to hire those in the country illegally while making 

it much easier to go after employers who try to do so. 

And three, means for negotiating active cooperation from sending 

countries aimed at cracking down on criminal smugglers and discouraging illegal immigration. 

On the legality side of the coin, the bill needs to have, one, future 

flow visas for both needed workers and separated families so that 

we can replace the current illegal flow with a legal and orderly one. 

Two, a registration and earned legalization solution for the 11 

million immigrants currently working and living in the U.S. illegally. 

And three, promotion of English language instruction and citizenship. Incentives for circularity are fine and necessary, but the 

many immigrants that settle here should be encouraged to become 

new Americans. 

Mr. Chairman, the country is crying out for leadership on this 

confusing, complex, and controversial debate. With all due respect, 

may I say, let us do this thing. Let us build out this new framework and enact a realistic solution in this Congress. Let us deal 

with enforcement and legality at the same time and with the right 

mix. Let us forge an immigration system based on enforceable laws 

tightly enforced. Let us create a regulatory regime that respects 

rule of law at the same time it respects the law of supply and demand. 

It is time for the either/or argument of the past to give way to 

the both/and solutions of the future. We no longer have to choose 

between being a nation of immigrants and a nation of laws. In fact, 

35

it is time to recognize that the only way to be either is to be both. 

Thank you. 

Chairman SPECTER. Thank you very much, Mr. Sharry. 

[The prepared statement of Mr. Sharry appears as a submission 

for the record.] 

Chairman SPECTER. We now turn to Mr. Mark Krikorian, Executive Director of the Center for Immigration Studies. He has a Bachelor’s from Georgetown, a Master’s from Fletcher, and has done extensive publishing in the Times, Post, and National Review. 

Thank you for joining us, and the floor is yours. 

STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES, WASHINGTON, D.C. 

Mr. KRIKORIAN. Thank you, Mr. Chairman. Policymakers face 

two main questions on immigration. What are we supposed to do 

with the 11 million illegal aliens who are here, and do we need to 

import unskilled labor at all? 

I will address the second question first. Do we need mass unskilled immigration? The answer is clearly no. Those who answer 

yes claim, in effect, that we are running out of a precious resource, 

unskilled workers, and thus we need to import more from abroad. 

In other words, our vast, flexible, 300-million-person, continentspanning economy can’t function properly without a steady supply 

of high school dropouts from abroad because they do work that 

Americans supposedly won’t do. Such a claim can only be described 

as economic gibberish. In fact, employers would do two things if the 

supply of foreign labor were reduced. One, increase wages and benefits to attract the labor still available, and at the same time, look 

for ways of increasing productivity through mechanization, for instance. 

Some would say that even with higher wages, there just aren’t 

enough Americans to do the work that illegals are doing now. Now, 

if we were Fiji or Kuwait and didn’t have any people, we might 

have to import a labor force. But if we look at the jobs that illegal 

aliens hold, we find that there are millions of Americans in those 

very same occupations and they suffer from much higher rates of 

unemployment than the national average. 

This isn’t to say that each illegal alien takes a job from an American. It is not that simple. But it does mean there are very large 

numbers of Americans who are unemployed or who have dropped 

out of the labor market altogether who are in direct competition 

with illegal immigrants. Many of these workers will be drawn into 

the jobs now performed by illegals and other jobs will be eliminated 

by technology if only the free market were not short-circuited by 

mass immigration. 

Lobbyists for business will disagree, of course, but claims of doom 

and gloom are nothing new from that quarter. Forty years ago, for 

instance, California tomato farmers testified that their industry 

would cease to exist if the foreign labor program of that time, the 

Bracero program, were ended. It was ended anyway and what 

farmers did was invest in harvest machinery, causing output to 

quadruple and the real post-inflation price of their processed products to fall. 

36

Fifty years before that, the textile industry predicted disaster if 

child labor were ended. In fact, at a hearing before this body in 

1916, one mill owner said that limiting child labor would ‘‘stop my 

machines.’’ Another said that investors would never receive another 

dividend, while a third said that ending child labor would paralyze 

the country. America’s economy has done just fine without child 

labor and it would do just fine without more foreign labor. 

But that leaves the other question before us. What do we do 

about the illegals already here? Those who support mass immigration also tend to support legalization, i.e., amnesty. They argue 

that there are only two options: One, mass round-ups and mass deportations of millions of people in a short period of time; or, since 

that isn’t going to happen, as Senator Kennedy pointed out, amnesty is the only other option available. 

Let me say here that anything that launders the status of an illegal alien, permitting him to remain here, is an amnesty. Whether 

it is a so-called temporary worker program that allows him to stay 

or an increase in the green card category for unskilled workers or 

some other means, the result is the same. And whether the illegal 

alien first has to earn his status by paying a fine or passing an 

English test or calculating pi out to ten digits, it doesn’t make any 

difference, either. If he gets to remain legally, he has received an 

amnesty. 

But we are not stuck with these two unpalatable choices. There 

is a third way, and it is the only workable solution in any case, attrition of the illegal population through enforcement. We didn’t get 

into this situation overnight and we are not going to end it overnight with one comprehensive piece of legislation, I am afraid. Instead, by actually enforcing the immigration law consistently and 

across the board, we can dramatically reduce the settlement of new 

illegal immigrants and, over a period of years, force millions of 

those already here to give up and to deport themselves, shrinking 

the illegal alien problem from today’s crisis to a manageable nuisance. 

Amnesty supporters claim that we have already tried that and 

we have failed and so we have to try something else. In fact, the 

precise opposite is true. We have never tried sustained, comprehensive enforcement, but we have tried many of the reforms that are 

now being proposed. In 1986, Congress passed an amnesty for illegal immigrants with nearly three million people legalized. Four 

years later, we substantially increased legal immigration and the 

issuance of temporary worker visas has grown even faster. The result? More illegal immigration than ever before. It is time to try 

something new, attrition through enforcement. 

Thank you. 

Chairman SPECTER. Thank you very much, Mr. Krikorian. 

[The prepared statement of Mr. Krikorian appears as a submission for the record.] 

Chairman SPECTER. Our next witness is Dr. Douglas Massey, 

Professor of Sociology at Princeton University. He was also a faculty member at the University of Chicago, where he directed the 

Latin American Studies Center and Population Research Center. 

We appreciate your being here, Professor Massey, and look forward to your testimony. 

37

STATEMENT OF DOUGLAS S. MASSEY, PROFESSOR OF SOCIOLOGY, PRINCETON UNIVERSITY, PRINCETON, NEW JERSEY 

Mr. MASSEY. Mr. Chairman and members of the Judiciary Committee, my testimony is very simple. The U.S. immigration system 

is badly broken. It has been broken since 1986 and has been getting worse. 

The central problem concerns the relationship between Mexico 

and the United States. Mexico accounts for 60 percent of all unauthorized migrants currently in the country and around a fifth of recent legal immigrants. After Mexico’s six million unauthorized residents, the next closest countries are El Salvador and Guatemala, 

with totals of less than 300,000 each. Few unauthorized migrants 

come from Asia, Europe, Africa, or the Pacific. Undocumented migration is, thus, overwhelmingly a problem of the Western Hemisphere and very disproportionately Mexican. 

Next to Canada, Mexico is our closest neighbor and trading partner. Together, we share a 2,000-mile border and trade annually totaling $286 billion. In 2004, 175,000 legal immigrants entered the 

U.s. from Mexico, along with 3.8 million visitors for pleasure, 

433,000 visitors for business, 118,000 temporary workers and dependents, 25,000 intra-company transferees, 21,000 students, 8,400 

exchange visitors, and 6,200 traders. At the same time, one million 

Americans presently live in Mexico and 19 million travel there 

each year. U.S. direct foreign investment in Mexico now totals $62 

billion annually. 

These massive cross-border flows are occurring by design under 

the auspices of the North American Free Trade Agreement. However, at the heart of NAFTA lies a contradiction. Even as we have 

moved to promote the freer cross-border movement of goods, services, capital, commodities, we simultaneously seek to prevent the 

movement of labor. We somehow wish to create a single North 

American economy that integrates all factor markets except one, 

that for labor. 

To maintain this illusion that we can somehow integrate while 

remaining separate, we have militarized our border with a friendly 

country that is among our closest trading partners and strongest 

allies and which poses no conceivable threat to the United States 

security. Even as binational trade with Mexico grew by a factor of 

eight from 1986 to the present, the Border Patrol’s enforcement 

budget increased by a factor of ten. The Border Patrol is now the 

largest arms-bearing branch of the U.S. Government except the 

military itself, with an annual budget of $1.4 million. 

The attempt to stop the flow of Mexican labor into the United 

States through unilateral enforcement has not only failed miserably, it has backfired. It has not deterred would-be immigrants 

from entering the United States, nor has it reduced the size of the 

annual inflow. What it has done is channel migratory flows away 

from traditional crossing points to remote zones where the physical 

risks are great, but the likelihood of getting caught is actually 

small. As a result, the number of deaths has skyrocketed while the 

probability of apprehension has fallen to a 40-year low. We are 

spending more tax dollars to catch fewer migrants and cause more 

deaths. 

38

Moreover, once deflected away from traditional crossing points, 

Mexican immigrants have moved to new destinations. Whereas 

two-thirds of Mexicans who arrived in the United States during 

1985 to 1990 went to California, during 2000 to 2005, only onethird did so. In essence, our border policies have helped transform 

a regional movement affecting three States into a national phenomenon affecting all 50 States. 

Our policies also serve to transform what had been a seasonal 

movement of male workers into a settled population of families, increasing the costs and risks of undocumented entry and they have 

not deterred Mexicans from coming. 

Perversely, the policies have only discouraged them from going 

home once they are here. Having faced the gauntlet at the border, 

undocumented migrants were loath to do so again and hunkered 

down for the long term. As a result of our militarization of the border, undocumented trips have lengthened and rates of return migration have plummeted. If the rate of in-migration remains stable 

while the rate of out-migration declines, only one outcome is possible, a sharp increase in the rate of net undocumented population 

growth. 

In addition, as Mexican migrants stayed away longer, they sent 

for their wives and children. So rather than constituting a temporary flow of male workers, Mexico-U.S. migration has become a 

settled population of permanent residents and families. 

In sum, the American attempt to stop the flow of Mexican workers within a rapidly integrated North American economy has not 

worked. Rather, it has reduced the rate of apprehension at the border, raised the death rate among migrants, produced longer trip 

lengths, lowered rates of return migrations, increased the rate of 

undocumented population growth, transformed what had been a 

circular flow of workers into a settled population of families scattered throughout 50 States, all at the cost of billions of dollars of 

taxpayer money. 

Our border policies have thus given us the worst of all possible 

worlds, continued immigration under terms that are disadvantageous to us, harmful to American workers, and injurious to the migrants themselves. This lamentable state of affairs stems from our 

failure to come to terms with the contradiction of continental integration under NAFTA. Rather than viewing Mexican migration as 

a pathological product of rampant poverty and unchecked population growth, we should see it as a natural product of economic 

development in a relatively wealthy country undergoing rapid transition to low fertility. 

I believe the McCain-Kennedy immigration bill moves us substantially in the direction of improving circumstances for American 

workers, improving circumstances for our closest neighbor, and enhancing the health and status of the United States. I, therefore, 

support it as a member of the National Academy of Sciences, a citizen of the United States, and a concerned human being. 

Chairman SPECTER. Thank you very much, Professor Massey. 

[The prepared statement of Mr. Massey appears as a submission 

for the record.] 

Chairman SPECTER. Mr. Sharry, you talk about the key to putting immigration on a legal footing is to find a way to encourage 

39

11 million undocumented immigrants to, quote, ‘‘transition to legal 

status.’’ Short of amnesty, which is generally frowned upon, how do 

you persuade those 11 million people to come out of the shadows 

so that the transition can be effectuated? 

Mr. SHARRY. There is no perfect solution to this, Senator. 

Chairman SPECTER. Well, give us some solution that isn’t perfect. 

Mr. SHARRY. It can’t be an amnesty, which is an automatic pardon and a trip to the front of the line. 

Chairman SPECTER. You agree that amnesty is out of the question, generalized? 

Mr. SHARRY. I do. I do. I also think, though, that if we are going 

to be realistic about putting migration on a legal footing, we can’t 

simply ignore the fact that there are 11 million people here without 

status who are afraid to come forward. 

I like the idea embodied in the McCain-Kennedy proposal, the 

idea of coming forward to register, submitting to security checks, 

paying fines, maintaining a clean record, getting to the back of the 

line, and participating in English and civics classes. I like the idea 

of having to earn your way out of the fact that you did break the 

law and you are here and most of you are going to stay. I think 

that is the right approach. 

Chairman SPECTER. And if they fail to earn their way, a breach 

along the line, ship them home? 

Mr. SHARRY. Yes. If I could just say one more thing about it, I 

do think that this amnesty word has been abused and overused. I 

think what the American people want is a solution to the 11 million as long as we have a solution to the problem of open borders, 

porous borders, lax enforcement. If we get the combination right, 

I think the American people will be pleased and glad that we have 

dealt with the 11 million here and they have come out of the shadows. 

Chairman SPECTER. Mr. Krikorian, you have an interesting concept on attrition through enforcement and your proposition that 

there are many people who are unemployed, but how do you deal 

with the statistics which show that even among construction workers, there are only about 65 percent of the number we need? If you 

move into the skilled trades, health care workers or plumbers, electricians, there are vast shortages. Looking at the projections from 

Federal Reserve Chairman Greenspan, that by the year 2030, the 

growth of the U.S. work force will slow to a half percent and at the 

same time the population over 65 years of age will rise to 20 percent, that sort of a demographic projection leaves the country in 

drastic shape on sustaining Social Security and Medicare. Really, 

is there any answer beyond bringing more workers into this country? 

Mr. KRIKORIAN. Yes, there is, Senator. First of all, the idea of the 

need for labor is a dynamic thing. It is not static. The fact is that 

the expectation or the presence of large numbers of foreign workers 

causes those industries that they work in or are expected to work 

in to develop differently. 

One quick example is in California, where the number of acres 

planted in labor-intensive crops has been steadily increasing because there is an available labor force illegally coming into the 

country that farmers want to use. With a smaller supply of foreign 

40

workers over time, the industries develop differently. Construction 

moves more rapidly to manufactured housing, away from stickbuilt housing. Farming moves more rapidly to mechanized harvests, away from hand harvesting, perhaps even different crops. 

Carrots, you harvest by machine; strawberries, you don’t. 

My basic point is the economy is a dynamic system that can adjust one way or the other— 

Chairman SPECTER. You think the market forces would accommodate if these workers weren’t available? 

Mr. KRIKORIAN. If they disappeared tomorrow, that would be extraordinarily disruptive, but there is no prospect of that happening. 

Over time, yes, market forces would deal with it. 

Chairman SPECTER. I have only 30 seconds left and I want to 

pose a question to Professor Massey, so pardon the interruption. 

You talk about renewal only once in a lifetime of the visa-holder 

after he or she returns home. Do you think that there is any practical way that temporary guest workers should be able to earn legal 

permanent resident status after staying in the U.S. labor force for 

a period of time without returning home? 

Mr. MASSEY. Yes, I do. I think that at the same time you set up 

a temporary worker program, it is also true that the old saying 

that there is no such thing more permanent than a temporary 

worker program. Some fraction of those temporary workers are 

going to acquire social and economic ties to the United States that 

will draw them into a more permanent status and there should be 

a pathway for that small fraction of people to become legal resident 

aliens of the United States. 

But left to their own druthers, the vast majority of people circulating from Mexico would prefer to return home, and so you should 

try to accommodate that with a temporary worker program, but 

also have an avenue for permanent settlement for those who acquire ties to the United States to qualify them. 

Chairman SPECTER. Thank you, Professor Massey. The red light 

went on during the middle of your answer. 

I will yield now to Senator Kennedy. 

Senator KENNEDY. Thank you very much. I thank the panel. I 

think we have gotten a pretty good impression from this panel 

about the dynamics of this debate in a lot of different ways. 

I want to just ask Frank Sharry about another dimension and 

that is what we can expect from Mexico and these other countries. 

The panel hasn’t mentioned this issue, but unless we get cooperation in this whole undertaking from Mexico and Central American 

countries, we are not going to achieve reform even with the proposals that Senator McCain and I have made. I am interested if 

you would comment on it. 

We have the programs in Mexico, the three-to-one programs 

where some rebates that go back in are used internally to try to 

help economic development. We haven’t talked about the importance of economic development in Mexico and the difference that 

that can make. There is also a payment. We talked earlier in the 

course of the hearing about people using fake I.D.s or Social Security cards and we know there are funds that are already in the Social Security fund that will not be claimed. I don’t know whether 

there is any way or opportunity or if there should be one, but it 

41

is a public policy issue whether some of that can be used in terms 

of helping the development in Mexico and along these border areas 

so that it changes the atmosphere and the climate. You are going 

to have to get a change in Mexico and Central America. 

Could you comment about the issue just generally, briefly, but— 

Mr. SHARRY. Yes, Senator. I agree with your thesis. We can’t get 

this done right unless we have Mexico and Central America, which 

account for more than 80 percent of the current illegal immigration, at the table as full partners. I do think that we should expect 

more from them in both public education campaigns, administering 

temporary worker programs, and in cracking down on smugglers. 

I also think that part of the deal of engaging them on immigration 

reform is that their own internal reform agendas get accelerated. 

You mentioned the Social Security suspense file, which I under- stand has some $420 billion in taxes that have been paid by those 

who can’t get matched up to right numbers and the only explanation from SSA is that almost all of that is from undocumented 

immigrants who have been working and having their FICA taken 

out. that is a huge sum of money. Now, most of it, I hope, will 1 

day get matched up to the workers themselves, but no doubt, some 

of that will be available both for, perhaps for development processes in Mexico and Central America. 

But we need to bring them to the table. They are democratic governments and they will come to the table if we have a fair immigration policy that responds to the law of supply and demand in 

this hemisphere. 

Senator KENNEDY. Thank you. On the issues of wages and the 

impact in terms of employment, I don’t think any of us question 

that if you are going to pay people $15 or $20 or $25 to make beds 

or wash dishes, maybe you can get people to do it, but it is going 

to be a rather dramatic change in the economy in terms of what 

we are looking at here. We can’t even get an increase in the minimum wage from $5.15 an hour in the last 9 years, and the idea 

that we are going to suddenly alter and change this economy so 

that we are going to be paying all these people and change this 

thing dramatically is something that I find quite difficult to get a 

handle on. 

But I am interested in, Professor Massey, just about what is happening out there in the depression of wages, even on American 

workers. Could you talk about what you think, if we get to a legitimate temporary worker program where a worker is going to have 

the protections in terms of what they are going to get paid, has got 

the mobility to move around, as compared to what we have at the 

current time in terms of the exploitation of the undocumented? 

What is sort of the swing on that in terms of the economic conditions generally of workers in those areas? What do you see as a 

professional economist and somebody who has studied this? 

Mr. MASSEY. Well, I think one of the major reasons that wages 

have lagged at the low end of the distribution is that we have seen 

a buildup of people without any labor rights in the United States. 

People in undocumented status are, in fact, vulnerable and subject 

to exploitation, and ironically, this isn’t because more people are 

coming to the United States, it is because when you militarize the 

border, the paradoxical effect is you deter them from going home. 

42

So what has fallen is not the rate of entry, but the rate of return 

migration and you have got all these people building up north of 

the border in undocumented status and by competing in labor markets in this super-exploitable position, it puts downward pressure 

on American wages and working conditions. 

I think the way to improve the situation for American workers 

is to grant people in the United States full rights within the U.S. 

labor market and labor markets work to allocate supply and demand, so you should allow people full rights to participate and 

allow the markets to do their work. 

Senator KENNEDY. My time is up. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

Senator Cornyn, do you have questions for this panel? 

Senator CORNYN. Just briefly, Mr. Chairman, if I may. 

Chairman SPECTER. Please proceed. 

Senator CORNYN. I think all of us agree that there are several 

different components to immigration reform that we need to address. One, obviously is the national security imperative. The other 

is the economic issues involved. And third, I would say, are the 

compassion issues that cause our hearts to go out to those who are 

literally dying trying to come to America to provide for their families. I don’t know anyone under similar circumstances who would 

not try to do the same, assuming that they had sufficient courage 

to do that. 

My own belief is the best and most compassionate thing we can 

do for people is to create a legal system and one that can be enforced, because a legal system then provides protection of the laws 

to workers. It provides protection against the human smugglers. It 

obviates a necessity for those. And it even helps the spouse who is 

subject to domestic violence and who is afraid to report it because 

of her status. 

But let me talk first, and perhaps exclusively in the time I have 

remaining, about enforcement. We know that the nature of immigration has changed across our borders, that it is not the traditional economic immigrant only, but rather we know that that porous border makes us vulnerable to people who want to come here 

to kill us, literally. It is just a matter of money to the smugglers. 

They will smuggle guns, they will smuggle drugs, they will smuggle people. They don’t care whether they are members of al Qaeda 

or whether they just want to work and provide for their families. 

Mr. Sharry, would you talk about, briefly, what sort of enforcement measures you think are imperative as part of this comprehensive immigration reform package? I understand there are other attributes that you think it needs to include— 

Mr. SHARRY. Right. 

Senator CORNYN [continuing]. But just talk to us about enforcement. 

Mr. SHARRY. Thank you, Senator. Well, let me suggest that I 

think there are a number of good ideas in the legislation that you 

have put forward that should be fully considered as part of a Senate Judiciary bill. I think the combination of robust border enforcement with the kind of infrastructure and technology improvements 

is essential. I think the idea of more boots on the ground, both on 

the border and in the interior, are ideas that have to be further deVerDate 0ct 09 2002 15:11 Nov 15, 2006 Jkt 030759 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30759.TXT SJUD4 PsN: CMORC
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veloped and implemented. I particularly like the way you have designed the bilateral agreements with sending nations. I think that 

is a respectful but essential way to engage the sending countries 

so we get cooperation from them in a meaningful way and I think 

that that is an excellent idea. And I think the detailed approach 

that you take to worker verification is essential. 

I think at the end of the day, if, in addition to augmenting the 

increased border enforcement, the key to reducing illegal immigration and draining the swamp of fake document merchants and 

smugglers is really going to be worker verification, and I think we 

need to do it. It is tough to do it right. We need to take into account privacy concerns, data concerns, anti-discrimination concerns. They are all legitimate, and I think those elements need to 

be added in this mix. But at the end of the day, if we have that 

combination from sending countries to border to interior enforcement combined with legal channels, I think we will significantly reduce illegal immigration. 

Right now, about a third of the flow is illegal. Our goal should 

be nothing less than to have it less than two or 1 percent as a flow, 

in which our Border Patrol can instantly know if someone is crossing our border and have teams go after those folks. We have got 

to take care of the networks that move workers so that 1 day, they 

can’t move terrorists. 

Senator CORNYN. Mr. Krikorian, would you speak to that same 

question, please? 

Mr. KRIKORIAN. I am inspired that Frank is so pro-enforcement 

now. It is a refreshing cool drink of water to hear. The problem, 

though, is that in the discussion of immigration enforcement and 

security, what we often hear is that the dishwasher isn’t the problem, the terrorist is the problem. And the fact, of course, is the 

dishwasher does not have a bomb vest on him and is not going to 

blow up a bus. But any immigration system that the dishwasher 

can sneak through is one that the terrorist can also sneak through. 

So we can’t do what really has been kind of the implicit sense 

since 9/11 in immigration enforcement. We can’t just pick and 

choose which immigration laws we are going to enforce or who we 

are going to enforce them against. We need to do it comprehensively at consulates overseas, at the border, and inside the country 

in order for the security benefits of it to be realized, because without it, if we look only at people from Egypt and Saudi Arabia, for 

instance, we will end up with terrorists using French passports or 

Russian passports or others, and those are not hypotheticals, those 

are real things. So we need enforcement across the board if it is 

going to have any security benefits at all. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Without objection, Senator Leahy’s statement will be made a 

part of the record. 

Thank you very much, Mr. Sharry, Mr. Krikorian, Professor 

Massey. Your testimony has been very helpful and now the Committee will struggle with the so-called markup where we try to 

write a bill. 

There is no doubt of the enormous importance of the immigration 

issue, how we balance many conflicting factors. I was interested to 

hear the story of Senator Durbin’s grandparents, a story very simiVerDate 0ct 09 2002 15:11 Nov 15, 2006 Jkt 030759 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30759.TXT SJUD4 PsN: CMORC
44

lar to the story of my parents, both of whom were immigrants. I 

disclosed at the outset my bias at birth favoring immigrants. Beyond that, we have to have a program which engenders respect for 

law and protects our borders and sees to it that we have an adequate work force, lots of complications, but within the pay grade 

of the Judiciary Committee. 

That concludes our hearing. Thank you all very much. 

[Whereupon, at 11:54 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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