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SHORTFALLS OF THE 1996 IMMIGRATION

REFORM LEGISLATION

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

CITIZENSHIP, REFUGEES, BORDER SECURITY, 

AND INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 20, 2007

Serial No. 110–25

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES,

BORDER SECURITY, AND INTERNATIONAL LAW

ZOE LOFGREN, California, Chairwoman

LUIS V. GUTIERREZ, Illinois 

HOWARD L. BERMAN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

LINDA T. SA ́ NCHEZ, California 

ARTUR DAVIS, Alabama 

KEITH ELLISON, Minnesota 

STEVE KING, Iowa 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas

UR MENDOZA JADDOU, Chief Counsel 

GEORGE FISHMAN, Minority Counsel 

(III)

C O N T E N T S 

APRIL 20, 2007

Page 

OPENING STATEMENT 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 1

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 3

WITNESSES 

Mr. Douglas S. Massey, Ph.D., Professor of Sociology and Public Affairs, 

Princeton University 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 11

Mr. Paul W. Virtue, former INS General Counsel and Executive Associate 

Commissioner, and Partner, Hogan & Hartson 

Oral Testimony ..................................................................................................... 27

Prepared Statement ............................................................................................. 29

Mr. Hiroshi Motomura, Kenan Distinguished Professor of Law, University 

of North Carolina School of Law 

Oral Testimony ..................................................................................................... 40

Prepared Statement ............................................................................................. 42

Mr. Mark Krikorian, Executive Director, Center for Immigration Studies 

Oral Testimony ..................................................................................................... 48

Prepared Statement ............................................................................................. 50

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on 

Immigration, Citizenship, Refugees, Border Security, and International 

Law ........................................................................................................................ 2

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 5

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ....... 6

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Submission to the Record by the Honorable Steve King, a Representative 

in Congress from the State of Iowa, and Ranking Member, Subcommittee 

on Immigration, Citizenship, Refugees, Border Security, and International 

Law: ‘‘Information on Criminal Aliens Incarcerated in Federal and State 

Prison and Local Jails’’ from the U.S. Government Accountability Office, 

April 7, 2005 ......................................................................................................... 64

Page

IV

Answers to Post-Hearing Questions from Douglas S. Massey, Ph.D., Professor 

of Sociology and Public Affairs, Princeton University ...................................... 102

Answers to Post-Hearing Questions from Paul W. Virtue, former INS General 

Counsel and Executive Associate Commissioner, and Partner, Hogan & 

Hartson ................................................................................................................. 104

Answers to Post-Hearing Questions from Hiroshi Motomura, Kenan Distinguished Professor of Law, University of North Carolina School of Law ......... 109

Answers to Post-Hearing from Mark Krikorian, Executive Director, Center 

for Immigration Studies ...................................................................................... 111

(1)

SHORTFALLS OF THE 1996 IMMIGRATION

REFORM LEGISLATION 

FRIDAY, APRIL 20, 2007

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 10:06 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Zoe 

Lofgren (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Lofgren, Gutierrez, Berman, Jackson 

Lee, Delahunt, Sa ́nchez, King, and Forbes. 

Staff present: Ur Mendoza Jaddou, Majority Chief Counsel; R. 

Blake Chisam, Majority Counsel; George Fishman, Minority Counsel; and Benjamin Staub, Professional Staff Member. 

Ms. LOFGREN. This hearing of the Subcommittee on Immigration, 

Citizenship, Refugees, Border Security, and International Law will 

come to order. 

Vigorous enforcement of the immigration laws is not only necessary, it is our responsibility. We must demand respect for the 

rules and also secure our borders. 

In 1996, Congress put forward a plan to enhance the enforcement of our immigration laws. A package of 1996 immigration reform laws further increased the number of Border Patrol agents 

and technology for border enforcement, required the Border Patrol 

to build fencing along the border, expanded the grounds of removal, 

and streamlined the removal process. Those laws created electronic 

employment verification systems and eliminated eligibility for welfare benefits. 

Those who wrote the bill, I am sure, meant to positively impact 

the situation of illegal immigration. Ending illegal immigration is 

an important goal. But, as we now know, the 1996 Act did not put 

an end to illegal immigration, not even close to it. 

The estimated numbers of illegal immigrants living in the United 

States has risen dramatically since 1996, growing from between 5 

million to 6 million people to an estimated 11 million to 12 million 

today. 

Until last year, the probability of an illegal border crosser getting 

caught dropped precipitously since 1996, even as more money and 

resources were committed to border enforcement. Those crossing 

the border simply shifted to more remote locations, making apprehension less likely, while also making it more likely that migrants 

will hire coyotes or die in the desert. 

2

Congressional attempts to manage the borders have, by most any 

measure, failed to accomplish the goal of stopping the flow of illegal 

immigration. The law of unintended consequences has reared its 

ugly head. We still have work to do and things to fix. 

The Illegal Immigration and Immigration Responsibility Act of 

1996, referred to as IIRIRA, created traps for those here illegally. 

It not only increased the cost of coming to America, but it also increased the cost of leaving. This has had the unintended effect of 

making people stay in America even when they would otherwise 

have returned home. 

For decades before the 1986 Immigration Reform and Control 

Act, illegal immigrants from Mexico came to America much as they 

do today. The difference between then and now is that most of 

them, some 80 percent, left within a couple of years. We learned 

in our fourth hearing that IRCA disrupted those historic patterns. 

The 1996 law not only continued to disrupt those patterns, they 

made things worse. 

Let me cite just one example. The 1996 Act created what are 

known as the 3-and 10-year bars to entry. Because these bars can 

only be triggered when someone departs the United States, the 

bars provide an incentive for undocumented immigrants to stay 

here, and stay they do. 

Instead of staying for 2 to 3 years, Mexican immigrants now tend 

to stay for 6 or 7 years or more. They have to. The cost to get in 

has gotten too high. It takes longer to pay off the coyote who has 

to be hired for each crossing, and because of the 3-and 10-year 

bars, the cost of leaving are higher still. And it has become even 

more dangerous and costly to reenter. 

The road to ruin is paved with good intentions. We must always 

be mindful of the law of unintended consequences. It is easy to say, 

we simply need to enforce the laws we have. But instead we need 

to work toward a comprehensive solution. We must reform our immigration laws not only to secure our borders but to provide for the 

safe, orderly and controlled future flow of immigrants. We must 

make certain that we protect American workers and safeguard the 

sanctity of family, and we must ensure that we do not create a permanent underclass of immigrant workers in this country. 

I look forward to hearing from our distinguished panelists today 

as we explore the unintended consequences and shortfalls of the 

1996 immigration reforms. 

I would now recognize our distinguished Ranking minority Member, Mr. Steve King, for his opening statement. 

[The prepared statement of Ms. Lofgren follows:]

PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL

LAW

Vigorous enforcement of the immigration laws is not only necessary, it is our responsibility. We must demand respect for the rules and also secure our borders. 

In 1996, Congress put forward a plan to enhance the enforcement of our immigration laws. A package of 1996 immigration reform laws further increased the number 

of border patrol agents and technology for border enforcement, required the border 

patrol to build fencing along the border, expanded the grounds of removal and 

streamlined the removal process. Those laws created electronic employment 

verification systems and eliminated eligibility for welfare benefits. 

3

Those who wrote the bill, I’m sure, meant to positively impact the situation of illegal immigration. Ending illegal immigration is an important goal. 

But, as we now know, the 1996 acts did not put an end to illegal immigration. 

Not even close to it. 

The estimated number of illegal immigrants living in the U.S. has risen dramatically since 1996, going from between 5 to 6 million people to an estimated 11 to 

12 million today. Until last year, the probability of an illegal border crosser getting 

caught dropped precipitously since 1996, even as more money and resources were 

committed to border enforcement. Those crossing the border simply shifted to more 

remote locations, making apprehension less likely, while also making it more likely 

that migrants will hire coyotes or die in the desert. 

Congressional attempts to manage the borders have, by most any measure, failed 

to accomplish the goal of stopping the flow of illegal immigration. 

The law of unintended consequences has reared its ugly head. We still have work 

to do and things to fix. 

The Illegal Immigration and Immigrant Responsibility Act of 1996 (referred to as 

the IIRIRA) created traps for those here illegally. It not only increased the cost of 

coming to America, but it also increased the cost of leaving. This has had the unintended effect of making people stay in America, even when they would have otherwise returned home. 

For decades before the 1986 Immigration Reform and Control Act, illegal immigrants from Mexico came to America, much as they do today. The difference between then and now is that most of them—some 80%—left within a couple of years. 

We learned in our 4th hearing that the IRCA disrupted those historic patterns. 

The 1996 laws not only continued to disrupt those patterns, they made things worse. Let me cite just one example. The IIRIRA created what are known as the 3 and 

10 year bars to reentry. Because these bars can only be triggered when someone 

departs the United States, the bars provide an incentive for undocumented immigrants to stay here. 

And stay they do. Instead of staying for 2 to 3 years, Mexican immigrants now 

tend to stay 6 or 7 or more years. They have to. The costs to get in have gotten 

too high. It takes longer to pay off the coyote who has to be hired for each crossing. 

Because of the 3 and 10 year bars, the costs of leaving are higher still. And it has 

become even more dangerous and costly to reenter. 

The road to ruin is paved with good intentions. We must always be mindful of 

the laws of unintended consequences. It’s easy to say we simply need to enforce the 

laws we have. 

Instead, we work toward a comprehensive solution. We must reform our immigration laws not only to secure our borders but to provide for a safe, orderly and controlled future flow of immigrants. 

We must make certain that we protect American workers and safeguard the sanctity of family. And, we must ensure that we do not create a permanent underclass 

of immigrant workers in this country. 

I look forward to hearing from our distinguished panelists today as we explore the 

unintended consequences of the 1996 immigration reforms.

Mr. KING. Thank you, Madam Chair. I appreciate you holding 

this hearing today and appreciate the witnesses coming forward to 

testify. 

In the mid-1990’s, there was a sea change in our strategy to control the southern border. In 1994, the total complement of Border 

Patrol agents was 4,226. The Border Patrol let illegal immigrants 

cross the border and then tried to apprehend them in border communities. 

Now, numbers and the strategy were deficient. The southwest 

border was in a state of crisis. The transit routes most heavily used 

for illegal immigrants were in the San Diego corridor, which had 

become an open sieve. 

Then things changed. First, in El Paso, Texas, Border Patrol 

Chief Silvestre Reyes, now Congressman of Texas’s 16th District, 

conceived and launched the most successful border initiative in recent memory. Pursuant to Operation Hold the Line, he placed his 

agents directly on the border and had them stop attempted border 

4

crossings. This visual deterrent had the effect of dramatically reducing illegal crossings, cutting crime in border communities and 

winning the praise of the public. 

When top INS officials, resentful of Reyes’ success, put roadblocks in his path and resisted applying his doctrine in other areas, 

it got more difficult. But Immigration Subcommittee Chairman, 

Lamar Smith, brought Chief Reyes to testify before Congress. Subsequently, INS adopted the Reyes strategy in San Diego and 

dubbed it ‘‘Operation Gatekeeper.’’ It has been remarkably successful. Apprehensions have plummeted, and the INS touted the operation as one of its most successful border control initiatives ever. 

Next, Congressman Lamar Smith and Senator Alan Simpson 

wrote, and saw through to enactment, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The act authorized 

a yearly net increase in Border Patrol strength of a then unheard 

1,000 a year. A decade later, the Border Patrol has a strength of 

over 13,000 agents. 

The act also called for the construction of a second and third row 

of border fencing along the southern border for 14 miles inland 

from the Pacific Ocean. The fence, combined with ‘‘Operation Hold 

the Line,’’ which was facilitated by the increasing Border Patrol 

strength, led to the San Diego border being secured and crime in 

San Diego dropping by half. 

As a result of these actions, it has become significantly more difficult for illegal aliens and drug smugglers to cross the southwest 

border. Illegal immigrants must now resort to difficult routes 

across rugged terrain in California and in Arizona. As long as Congress continues increasing Border Patrol strength in the future, we 

can look forward to the day when the entire border is brought 

under control. 

Now, some make the argument that the increased border security since the mid-1990’s has actually made our illegal immigration 

problem worse. The argument is that when illegal immigrants 

could cross the border at will, they practiced circular migration and 

went back and forth across the border. Some did. 

But once border security increased, many aliens who had made 

it across the border stayed permanently in the U.S. for fear of not 

being able to get back across the border after returning home. That 

is the argument. 

Now, this argument is flawed for two reasons. First, it makes little difference as to the effect of illegal immigration on the American economy and society whether illegal immigrants stayed permanently or whether they go home for Christmas vacation or any 

other time. 

Second, the very data that Mr. Massey utilizes purports to show 

that the percentage of illegal immigrants who return to Mexico 

within a year of illegal entry declined between the mid-1980’s and 

the mid-1990’s ever since then and has stayed relatively stable. 

Given that the major efforts to control the southwest border did 

not begin until the mid-1990’s, it makes no sense to argue that increased border enforcements have resulted in more permanence. 

But even if we accept the circulatory premise for the sake of this 

argument, it does not argue that we should abandon a chance to 

5

further secure our borders. It has always been the case that we can 

never control illegal immigration through border security alone. 

First, an estimated 40 percent of illegal immigrants have come 

to the U.S. legally on temporary visas and have simply illegally 

procured jobs and never left. Second, we will never be able to totally seal our thousands of miles of land and water borders. Some 

people will inevitably get through. 

For both these reasons, border security must be combined with 

robust interior enforcement, especially through the enforcement of 

employer sanctions. Unfortunately, while we made the border progressively tighter since the mid-1990’s, Administrations past and 

present have practically abandoned worksite enforcement. That is 

why we have 20 million illegal immigrants today, not because we 

have more Border Patrol agents. 

I am heartened by the steps taken by Julie Myers in the past to 

reinvigorate enforcement. It is making a difference. But the issue 

has been raised about how many die in the desert, and I would say 

some of that is unmitigated by a reduced number that are hit by 

cars because of illegal crossings in the San Diego area. 

And the point that I would make is that there are a significant 

number of Americans who die at the hands of some of those who 

are criminals who do get across that desert, and that number is 

far, far greater in number, and we need to be protecting and defending the American people. That is what this policy is about. 

I look forward to the testimony. 

Thank you, Madam Chair, and I yield back. 

Ms. LOFGREN. Thank you. 

And in the interest of proceeding to our witnesses and mindful 

that we will be having a series of votes in the near future, I would 

ask that other Members submit their statements for the record 

within 5 legislative days. 

Without objection, all opening statements will be placed within 

the record. 

And, without objection, the Chair will be authorized to declare a 

recess of the hearing at any point. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

Today we continue our examination of the earlier immigration reform efforts. As 

we have done with the 1986 Act, we are looking to the 1996 example to inform us 

as we work to get it right this time. 

Congress passed the IIRAIRA in 1996 as a ‘‘get tough’’ approach to immigration 

management. But rather than ending illegal immigration, there are more illegal immigrants ten years later than at any other time in history. Why did this ‘‘get tough’’ 

law fail? Perhaps it failed because it substituted an enforcement-only approach instead of an approach that was balanced and pragmatic. Like IRCA, the 1996 law 

turned out to lack options to meet the real-world needs of immigrants and employers. 

The IIRAIRA was outwardly very tough. It doubled the number of Border Patrol 

agents and started the spate of fence building on the Southern border. It sped removal and reduced the ability of courts and the immigration service to weigh humanitarian factors. It made refugee and asylum laws much more strict. 

There were some things about that law that are positive, if implemented fully. 

Such aspects of IIRAIRA as pilot programs to test employment eligibility 

verification, visa waivers for certain countries, and enhanced sentences for those 

who enslaved or abused immigrants seemed to be positive steps at the time. 

6

But by and large, IIRAIRA was a restrictive law in which responsibility and enforcement fell on the powerless aliens, such as through the statutory bars to reentry for people who had to leave the country even if there were pressing humanitarian reasons. Attempts to address these problems through follow-up technical 

modifications were derided and dismissed as ‘‘amnesty’’ programs. And so, once 

again, here we are seeking a solution. 

None of the 1996 law’s get-tough provisions addressed the root of the immigration 

issue. Indeed, they may have made it worse by cutting off the circular migration 

that has always existed in the Americas. 

Today we will hear from nationally recognized experts, including a witness who 

labored mightily to try to implement IIRAIRA while he was with the government. 

We hope to take away valuable lessons that will help guide our work over the coming months to develop a controlled, orderly, and fair immigration system.

[The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

This hearing will examine the shortfalls of 1996 Immigration Reform Legislation. 

The most significant bills from that period are the Antiterrorism and Effective 

Death Penalty Act of (AEDPA) and the Illegal Immigration Reform and Immigrant 

Responsibility Act (IIRIRA). 

AEDPA was intended to deter terrorism, to provide justice for victims, and to provide an effective death penalty. It was passed by a Republican-controlled Congress 

following the Oklahoma City bombing and signed into law by Democratic President 

Bill Clinton. It also has provisions which have an impact on immigration law. 

Among other things, AEDPA requires mandatory detention of non-citizens who 

have been convicted of a wide range of criminal offenses, including minor drug offenses. IIRIRA expanded this list to include more offenses. 

One of the troublesome aspects of these mandatory detention provisions is that 

they are not restricted to serious criminal offenses. Under these provisions, mandatory detention may apply to aliens who were convicted of a crime for which no time 

in prison was actually served because the crime was so insignificant. 

Mandatory detention also is required in expedited removal proceedings. My Save 

America Comprehensive Immigration Act of 2007, H.R. 750, would eliminate mandatory detention for aliens in expedited removal proceedings. This apples even if the 

alien has never been convicted of any criminal offense and does not pose a flight 

risk. This is particularly troublesome in view of the fact that many of the aliens 

in expedited removal proceedings are women and children or members of some other 

vulnerable population. 

Mandatory detention is wrong and it wastes resources. It requires the detention 

of people who do not need to be detained despite the shortage of detention space 

for aliens who really do need to be detained. It makes more sense to provide discretion for releasing people in detention if they are not a danger to the community or 

a flight risk, which is the standard for aliens who in removal proceedings but are 

not subject to mandatory detention. 

AEDPA authorized state and local police to arrest and detain aliens who are unlawfully present in the United States, which is a violation of civil immigration law, 

but only in the case of aliens who have been convicted of a felony in the United 

States. AEDPA required a nexus between civil immigration law violations and the 

criminal behavior before local police could detain individuals with civil violations. 

IIRIRA went further and authorized state and local police to enforce civil immigration laws when there is a ‘‘mass influx’’ of foreign nationals, the situation requires an immediate response from the federal government, and federal officials obtain the consent of the state or local supervising department. 

IIRIRA also established a mechanism which can be used to delegate immigration 

law enforcement authorities to state and local police provided the officers have undergone adequate training and have entered into a formal agreement with the Department of Justice. This is known as the MOU process, for ‘‘memorandum of understanding.’’

In addition, IIRIRA provides that public employees cannot be barred from reporting immigration-related information about a particular individual to the immigration service. This was done in response to state and local laws or executive orders 

that had been enacted around the country to prohibit such disclosures. My Save 

America Comprehensive Immigration Act would strike this provision. 

7

IIRIRA includes a wide variety of changes which made it far easier to deport or 

exclude non-citizens for minor criminal violations which occurred many years ago. 

Among other things, IIRIRA lowered the sentence and monetary amount thresholds 

for many of the crimes on the list of aggravated felonies and other excludable or 

deportable offenses and did so on a retroactive basis—meaning that offenses that 

were not previously deportable became deportable retroactively in 1996, even if they 

occurred in earlier years. 

My Save America Comprehensive Immigration Act would provide Immigration 

Judges and the Board of Immigration Appeals with the discretion to avoid removal 

on the basis of nonserious offenses. It provides that a conviction which did not result 

in incarceration for a year or more may be disregarded for immigration purposes 

as a matter of discretion. This permits the adjudicator to base the removal decision 

on whether the specific offense involved warrants removal.

Ms. LOFGREN. We have four distinguished witnesses here today 

to help us consider the important issues before us. 

First, I am pleased to welcome Dr. Douglas Massey, a professor 

of Sociology and Public Affairs at Princeton University. Professor 

Massey currently serves as the Director of Graduate Studies at 

Princeton’s Woodrow Wilson School, and his research has focused 

on topics ranging from international migration to urban poverty. 

Professor Massey currently serves as President of the American 

Academy of Political and Social Science and co-edits the Annual 

Review of Sociology. He reviewed both his master’s and doctorate 

degrees from Princeton. 

We will next hear testimony from Paul Virtue, a former general 

counsel to the United States Immigration and Naturalization Service. During his tenure at INS, Mr. Virtue supervised over 600 attorneys on the nationwide litigation team and advised the INS 

Commissioner, the Commissioner of the White House and several 

other Federal agencies on immigration matters. Mr. Virtue currently practices law as a partner at Hogan & Hartson here in 

Washington and holds his law degree from the West Virginia University College of Law. 

I would like next to welcome Hiroshi Motomura, a professor from 

the University of North Carolina’s School of Law. Professor 

Motomura co-authored the widely used law school case book, Immigration and Citizenship: Process and Policy. He has served as cocounsel in several recent immigration cases before the Supreme 

Court and is a member of the American Bar Association’s Commission on Immigration. Professor Motomura is a graduate of Yale 

College and the University of California-Berkeley’s Boalt Hall 

School of Law. 

Finally, I would like to welcome Mark Krikorian, the Executive 

Director of the Center for Immigration Studies, a research organization here in Washington, DC, that examines the impact of immigration on the United States. Mr. Krikorian has published articles 

in The Washington Post, the New York Times and the National Review, among other publications. Mr. Krikorian holds a masters degree from the Fletcher School of Law and Diplomacy and a bachelor’s degree from Georgetown University. 

Now, as you can tell, there are bells ringing and lights flashing, 

and what that tells us is that we have a series of votes on the floor 

of the House. We have nine votes, the first one of which will be 15 

minutes and the remainder of which will be 5 minutes apiece. And 

that is the last of the day. 

8

I apologize that your testimony has been interrupted. We should 

reconvene—when would be a good time—an hour, really, it will be 

an hour. If you can come back at, let’s say, 11:15. Is that possible 

for the witnesses to do? There is a cafeteria in the basement where 

there is coffee and doughnuts. 

We will recess and be back here at 11:15 to hear your testimony. 

Thank you very much. 

[Recess.] 

Ms. LOFGREN. We are back in session, and I would like to, first, 

apologize to the witnesses. The voting took forever. But we are here 

now to hear your testimony. The entirety of your written testimony 

will be made part of the record. 

I would ask that each of you summarize your testimony in 5 minutes or less, and we will remain within that time limit on questions. 

And, Dr. Massey, if you would begin. 

TESTIMONY OF DOUGLAS S. MASSEY, Ph.D., PROFESSOR OF 

SOCIOLOGY AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY 

Mr. MASSEY. Chairman Lofgren, Ranking Member King, since 

1986, the United States has pursued a politics of contradiction with 

respect to Mexico. 

On the one hand, we have joined with Mexico and Canada to create an integrated North American market and made arrangements 

for the free movement of goods, capital, information, resources and 

services across our borders. 

On the other hand, within this otherwise integrated market, we 

have acted unilaterally in a vain attempt to block the movement 

of labor. This contradictory policy has not only failed, it has backfired, producing outcomes that are categorically worse than if we 

had done nothing at all. 

Under pressure from U.S. Treasury in 1986, Mexico joined the 

general agreement on tariffs and trade and looked northward to 

join Canada and the United States in a new free trade agreement, 

which was enacted on January 1, 1994. Since that date, Mexico and 

the U.S. have formally been committed to unifying markets within 

North America. 

As shown in figure one, total trade between the two countries—

it is not advancing—total trade between the two countries has skyrocketed, increasing eight times between 1986 and 2000. Since 

1986, the number of exchange visitors from Mexico has tripled, the 

number of business visitors has quadrupled, and the number of 

intercompany transferees has grown five times. Within this rapidly 

integrating economy, however, U.S. policymakers have somehow 

sought to prevent the cross-border movement of workers, in essence, seeking to integrate all markets except for one, that for 

labor. 

To finance this fundamental contradiction, beginning in 1986 we 

adopted an increasingly restrictive set of immigration and border 

enforcement policies. Let’s just do it without the slides. 

To connect this fundamental contradiction, beginning in 1986, we 

adopted an increasingly restrictive set of immigration and border 

policies. First, the Immigration Reform and Control Act granted 

$400 million to expand the Border Patrol, the 1990 Immigration 

9

Act authorized hiring of another 1,000 officers, and in 1993, these 

new personnel were deployed in Operation Blockade as part of an 

all-out effort to stop unauthorized border crossing in El Paso, a 

strategy that was extended to San Diego in 1994 as Operation 

Gatekeeper. 

Finally, the 1996 Illegal Immigration and Immigrant Responsibility Act provided funds to hire another 1,000 border officers per 

year through 2001. 

From 1986 to 2002, the Border Patrol’s budget increased by a 

factor of 10, the number of hours spent patrolling border grew 

eight times, and the number of Border Patrol officers tripled. In essence, the U.S. militarized the border with its closest neighbor, its 

second largest trading partner and a nation which was committed 

by treaty to an ongoing process of economic integration. 

Rather than slowing the flow of immigrants into the United 

States, however, this policy of insisting on separation while promoting integration yielded an array of unintended and very negative consequences. The most immediate effect was to transform the 

geography of border crossing. 

Whereas, undocumented border crossing during the 1980’s focused on San Diego and El Paso, the selective hardening of these 

borders after 1993 diverted flows to new and more remote locations. And as late as 1989, only one-third of undocumented migrants crossed outside of San Diego or El Paso, but by 2002, twothirds were crossing somewhere else. 

And once they had been deflected away from traditional migration points, migrants kept on going. Before 1993, no more than 20 

percent of all undocumented migrants went to States other than 

the three traditional destinations of California, Texas and Illinois, 

but by 2002, 55 percent were proceeding to some new State of destination. Undocumented migration was thus nationalized. 

In addition to transforming the geography of immigration, U.S. 

border policies had two additional unplanned effects. First, by 

pushing immigrants into more remote and less hospitable sectors 

of the border, the enforcement in San Diego and El Paso dramatically increased the number of migrant deaths. The rate of death 

during undocumented border crossing tripled from 1992 to 2002. 

In addition, although remote sectors were more dangerous, they 

were also less patrolled and contained fewer enforcement resources. 

By pushing migrants into desolate sectors of the border, U.S. polices, therefore, actually lowered the likelihood that illegal migrants would be apprehended. 

At first, the migrants unwittingly walked into the new wall of 

enforcement resources in these two built-up sectors and the probability of apprehension temporarily went up. Quickly, however, migrants got wise and went around the built-up sectors and crossed 

through empty deserts, sparsely populated ranch land and wild sections of the Rio Grande. And as a result, the probability of apprehension plummeted to record low levels. 

The financial costs of border crossing to migrants were nonetheless driven upward. The average cost of hiring a border smuggler 

tripled from $400 to $1,200 in real terms. Unfortunately, Mexicans 

did not respond to the new costs and new risks of border crossing 

10

by deciding not to migrate; rather, they decided to stay longer once 

they were here. 

As shown in the figure, the probability that a Mexican male or 

female would decide to undertake a first trip to the U.S. did not 

change from 1980 to the present. For men, the probabilities fluctuated between 1 and 2 percent per year, and for females, it has 

never exceeded a fraction of 1 percent. Rather than responding to 

the increased costs and risks of border crossing by staying home, 

Mexicans hunkered down and stayed once they had achieved entry. 

Rather than returning home, possibly to face——

Ms. LOFGREN. Dr. Massey, I forgot to announce that when the 

red light goes on, the 5 minutes are up. I turned it off, but if you 

could summarize, that would be great. 

Mr. MASSEY. Basically, what I would like to say is that the attempt to close off a border with our largest trading partner has 

backfired, and the rate of in-migration into the United States has 

not changed in 20 years. What changed was the rate of out-migration, and that doubled the rate of undocumented population growth 

in the U.S., and that was a complete function of our border policy. 

[The prepared statement of Mr. Massey follows:]

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PREPARED STATEMENT OF DOUGLAS S. MASSEY


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Ms. LOFGREN. Thank you very much. 

Mr. Virtue, we will time this. When your yellow light goes on, 

you have about a minute left, and when the red light goes on, your 

5 minutes are up. 

TESTIMONY OF PAUL W. VIRTUE, FORMER INS GENERAL 

COUNSEL AND EXECUTIVE ASSOCIATE COMMISSIONER, AND 

PARTNER, HOGAN & HARTSON 

Mr. VIRTUE. Thank you, Madam Chair, Ranking Member King 

and Members of the Subcommittee. Thank you for the opportunity 

to appear before you this afternoon. 

The IIRIRA amended virtually every section of title two of the 

Immigration and Nationality Act. It represented the most comprehensive immigration legislation since the McCarran-Walter Act 

of 1952. 

For example, the Act authorized a substantial increase in Border 

Patrol agents, increased the penalties for illegal entry, eliminated 

the distinction concerning the rights of aliens based on entry to the 

United States, added a number of immigration-related crimes, including smuggling and visa fraud to the RICO predicate offenses, 

authorized expedited removal without a hearing for aliens who 

commit fraud or fail to present a proper visa, restricted eligibility 

for relief from removal, overhauled the process for the removal of 

inadmissible and deportable aliens from the United States, barred 

aliens from returning to the U.S. following periods of unlawful 

presence in the United States, added new crimes to the growing 

list of aggravated felonies, making that definition retroactive, and 

mandated detention for aggravated felons, including permanent 

residents, and placed significant limits on judicial review. 

Indeed, given the scope of the 1996 Act, it is difficult to conceive 

of an area, with the possible exception of a reliable system for 

verifying employment authorization, in which the Federal Government lacks powerful authority today to enforce our immigration 

laws. 

What we do lack, and always have lacked, are the adequate resources to secure the border against unlawful entry; to identify, detain and remove aliens who have committed serious crimes, to 

properly investigate and prosecute those who commit alien smuggling and document fraud; and to enforce measures against unauthorized employment. 

The challenge, thus, facing this Congress will be to find a balance in terms of the statutory mandates and to move to efficiently 

enforce the immigration laws, while keeping a keen focus on excluding or deporting the bad guys. The threshold question in that 

analysis, one that is outside the scope of this hearing, is whether 

we should continue to expend limited resources on the large percentage of the undocumented population in the United States to 

continue to contribute to an economic boom. 

The question that is within the scope of this hearing, however, 

is, in removing discretion from the authorities charged with enforcing our immigration laws, whether IIRIRA of 1996 went too far. I 

submit that in a number of areas it did and by doing so actually 

limited the ability of the agencies responsible for enforcement to 

develop a rational set of enforcement priorities. 

28

Those areas are mandatory custody. Immigration detention is designed to serve two important enforcement goals. It ensures the 

alien’s availability for proceedings and possible removal, and it protects the community from any potential danger the alien might 

pose. In a society like ours, however, those legitimate goals must 

be balanced against an alien’s equally legitimate liberty interests. 

Historically, aliens taken into custody were afforded an opportunity to have these competing interests weighed by an immigration officer and by an immigration judge who could order them removed, or order them released or detained pending completion of 

removal proceedings and any appeals. 

In 1996, however, Congress enacted the mandatory detention 

scheme for aliens, including permanent residents, whose criminal 

convictions might subject them to removal. The impetus behind 

this change in the law was a concern that criminal aliens subject 

to removal proceedings were climbing at high rates. 

But even before Congress passed this legislation, concerns about 

absconders had been addressed effectively by the provision of increased detention resources, which gave immigration officers and 

judges greater flexibility and order in detention. In fact, the Clinton administration consequently advised Congress against including the broad mandatory detention provisions that ultimately were 

enacted. 

Secondly, restrictions on discretionary relief from removal. Prior 

to IIRIRA, aliens who were otherwise deportable could apply to an 

immigration judge to have their deportations suspended. If the application was granted, the alien would be eligible to adjust status. 

To qualify, aliens had to show they were continuously present for 

a minimum of 7 years, they were persons of good moral character 

and their deportations would result in extreme hardship. The 

IIRIRA changes increased that standard and severely limited the 

availability of discretionary relief. 

The other aspects are the limitations on judicial review of immigration decisions. Under IIRIRA, those court-stripping provisions 

provide that administrative findings of fact are conclusive unless a 

reasonable adjudicator would be compelled to conclude to the contrary. So, consequently, those provisions have substantially diminished the ability of non-citizens to have their cases heard before a 

neutral arbiter. 

And, finally, the 3-and 10-year bars on admission. As we know, 

the IIRIRA created bars to admissibility for people who have been 

in the U.S. for more than 6 months or more than 1 year and who 

return to their home country. The problem that that created has 

been a paradoxical one and that is that it has, actually, created an 

incentive for people who are here unlawfully to remain here unlawfully rather than to be able to go home and apply for immigrant 

visas. 

So, in conclusion, the net result of the enforcement measures enacted in IIRIRA has been a reduction in the discretion available to 

immigration authorities in administering the immigration laws. I 

would submit that discretion should be restored in a number of 

years. 

Thank you. 

[The prepared statement of Mr. Virtue follows:]

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PREPARED STATEMENT OF PAUL W. VIRTUE


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Ms. LOFGREN. Thank you, Mr. Virtue. 

Mr. Motomura? 

TESTIMONY OF HIROSHI MOTOMURA, KENAN DISTINGUISHED 

PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA 

SCHOOL OF LAW 

Mr. MOTOMURA. Madam Chair, Ranking Member King, Members 

of the Subcommittee, thank you for the privilege of appearing before you today. 

I would like to suggest two ways to think about the 1996 Act. I 

will state them briefly and then elaborate. First is that an enforcement-only approach to immigration legislation will undermine the 

rule of law, and the second is that any evaluation of the Act needs 

to look closely at the effects on U.S. citizens. 

First, on enforcement, an immigration system that respects the 

rule of law needs to include not only enforcement but three other 

essentials of our legal system. One is discretion, subject to legal 

standards; second is decision-making that is based on expertise and 

subject to checks and balances; and the third is due process. 

Now, speaking to discretion, that can mean different things, but 

I think it is very important to see the difference between 

unreviewable discretion that is outside the law and the sort of discretion that respects the rule of law. Especially in the early part 

of the 20th century, discretion and immigration was largely discretionary. This was most extreme for Mexican immigrants. They 

were tolerated when the economy needed them but deported when 

they were deemed expendable. 

Now, this discretion, historically, was unreviewable and arbitrary 

but was gradually channeled, first for Europeans and Canadians 

and later for all immigrants, into formal mechanisms with legal 

standards, like suspension of deportation and adjustment of status. 

Now, the 1996 Act produced opportunities to apply discretion, 

subject to legal standards and review. For example, it curtailed eligibility for cancellation of removal and it provided for mandatory 

detention. 

So to illustrate the problems that result, mandatory detention 

makes it much harder, for example, to obtain counsel, and when 

we impair access to counsel, we don’t know what errors are being 

made in rule proceedings. 

The 1996 Act also increased the number of discretionary decisions that aren’t subject to legal standards or meaningful administrative or judicial review. For example, the Acts have really reduced judicial review or discretionary denials of relief. 

In short, the 1996 Act moved away from discretion that is caseby-case justice, according to legal standards, and it moved back toward discretion that can be arbitrary, unpredictable and discriminatory. 

Now, thinking about discretion leads us to think more generally 

about decision-making based on expertise and subject to checks and 

balances. One example here is expedited removal, which applies, in 

theory, only to someone who lacks any defenses to removal. But the 

question is whether any individual is really such a person lacking 

defenses. 

41

Expedited removal gives ultimate authority to low-level officials 

and thus eliminates the procedural protections afforded in immigration court by judges and counsel. Again, we don’t know what 

mistakes are being made, for example, denying asylum to someone 

who has a right to protection under both U.S. and international 

law. 

I mentioned lack of judicial review of discretionary decisions, but 

lack of judicial review is a broader problem. Although the Supreme 

Court has essentially compelled some restorations, significant bars 

to review remain, and they are especially troubling because of a 

parallel reduction in BIA review. 

Along with accuracy, a related casualty is uniformity, which can 

only be achieved with recorded, formal administrative and judicial 

decisions. A lot of it isn’t uniform. It is unequal, it is unpredictable, 

and its unpredictability means inadequate notice. Any system of 

immigration law is doomed to make mistakes if we simply hope 

that they will come to light without any mechanism being established to discover them, and a system that can’t have confidence in 

its accuracy diminishes respect for the rule of law. 

And most of what I have identified as problems of discretion or 

decision-making can also be thought of as due process problems, 

but the 1996 Act has other kinds of due process problems as well. 

I will just mention one: retroactive changes to immigration law. 

This practice pre-dates ’96, but the Act made it much worse by 

making many non-citizens deportable for reasons that had no immigration consequences originally. 

Retroactive laws fail to give the notice that is essential to due 

process so that individuals can understand the consequences of 

their actions, and lawyers can give reliable advice. 

Let me quickly address my second major theme, which is effects 

on U.S. citizens. An enforcement-only approach leads to mistakes 

that cause devastating harm to many citizens who may be the noncitizen’s husband or wife, father or mother or child. When our immigration system doesn’t adhere to the rule of law, we diminish 

and we devalue what it means for them to be American citizens. 

An example is the cutback on cancellation eligibility for applicants who typically have immediate family members who are citizens. Another is the failure to consider citizen children for waivers 

of the 3-and 10-year bar. 

My two main points today are that any assessment of the 1996 

Act should adopt two yardsticks: The rule of law and effects on 

U.S. citizens. 

Let me close by suggesting that if we are to foster the integration 

of immigrants into American society, it is essential to build confidence in an immigration law system on the part of immigrants 

and the citizens who are closest to them. And integration of immigrants, in turn, is essential to the long-term success of any immigration policy. 

Thank you. 

[The prepared statement of Mr. Motomura follows:]

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PREPARED STATEMENT OF HIROSHI MOTOMURA


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Ms. LOFGREN. Thank you very much. 

And, finally, Mr. Krikorian? 

TESTIMONY OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES 

Mr. KRIKORIAN. Thank you, Madam Chairwoman and Members 

of the Subcommittee. 

The shortcomings of the 1996 immigration law come in two 

parts. One is a defect in the bill itself, and I think more important 

is the defect in the execution of the law. 

As far as the bill itself, the law itself, there was one very large 

mistake in the 1996 law and that was rejecting the recommendations of Barbara Jordan’s Commission on Immigration Reform to 

cut overall legal immigration. The Jordan commission recommended a reduction of about one-third in total legal immigration, focusing in particular the family portions of the flow more 

tightly and eliminating certain categories. 

The original versions of what became the 1996 law incorporated 

all of the Jordan commission’s recommendations, including those 

regarding legal immigration, but Congress split the legislation and 

passed only the illegal immigration portions and abandoned the 

legal immigration parts of Ms. Jordan’s recommendations. 

This was a mistake for two reasons. One, immigration is simply 

too high. Mass immigration is not compatible with the goals and 

the characteristics of a modern society, but that is the subject for 

a different hearing. 

Secondly, the goal of the 1996 law, ultimately, was the reduce illegal immigration, and even in this respect, the decision not to 

streamline and reduce legal immigration was a mistake because of 

the intimate connection between legal and illegal immigration. In 

other words, it is simply not possible to have high levels of legal 

immigration without at least creating very intense pressures for 

high levels of illegal immigration. 

But I would submit the bigger problem with ’96 is the execution 

of the ’96 law provisions and immigration law, in general, since 

then. 

Barbara Jordan told this very panel in 1995, ‘‘Credibility and immigration policy can be summed up in one sentence: Those who 

should get in, get in; those who should be kept out are kept out; 

and those who should not be here will be required to leave.’’ And 

that simply hasn’t happened. 

To understand why that hasn’t happened, the storyline has developed that the enforcement efforts, starting in the 1990’s, had the 

perverse effect of increasing settlements of illegal immigrants. This 

is what Professor Massey was talking about. And the storyline goes 

this way: that illegal aliens were happily coming and going in circular migration flow, as they put it, until enforcement made it 

harder to get back in, and, therefore, the incentive was to stay here 

rather than to come and go. The broad claim, basically, is that border enforcement creates illegal immigration. 

The absurdity of this claim is clear from the top of the two figures that I have here. The Census Bureau shows that long before 

new border enforcement measures, Mexican immigration, which is 

a pretty good proxy for illegal immigration since it accounts for 

49

most illegal aliens and most Mexicans either are or were illegal 

aliens, Mexican immigration has been growing rapidly for at least 

a generation. There weren’t even 800,000 Mexicans in the United 

States in 1970, and that has doubled each decade, long before there 

was any border enforcement of significant consequences. 

But let’s concede, for the sake of argument, that there actually 

is something to this, that the rate of return of illegals, that the minority of Mexican immigrants who went back and forth, that minority has gotten even smaller. 

The reason, though, is not just border enforcement because something else was going on in the 1990’s, not just increases in border 

enforcement, modest though they were, frankly, but also an almost 

complete abandonment of interior enforcement, as the lower second 

of the figures I have shows. 

And so what has caused, to the extent there has been an interruption of this back and forth, it is the combination, the dysfunctional combination of increased border enforcement with the complete abandonment of interior enforcement, which simply reduces 

the incentive for illegal aliens to leave. This is well-documented. 

The bottom graph shows the number of fines issued to employers, 

which fell to three, a total of three in 2004. Other factors also declined related to interior enforcement. And this sends illegal aliens 

the message that it is hard to get in or a little harder, but if you 

can make it, you are home free. 

We have seen a minor change in that over the past year. The Administration has permitted and asked for funding for some modest 

increases of an enforcement, and it actually seems to be doing what 

it is intended to do, which is reduce illegal settlement and increase 

the return migration of illegal aliens. 

This doesn’t mean the problem is solved. This means that we 

have taken some baby steps now over the past year in the right 

direction and that the proposals for what has come to be called 

comprehensive immigration reform would actually short-circuit this 

progress and return us to where we were before, which is continually increasing illegal populations. 

Thank you. 

[The prepared statement of Mr. Krikorian follows:]

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PREPARED STATEMENT OF MARK KRIKORIAN


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Ms. LOFGREN. Thank you very much. 

Before we go to questions, I learned that Dr. Massey has a train 

to catch, and I don’t know whether you want to miss your train and 

take our questions or have us submit our questions in writing to 

you. The choice is entirely yours with no hard feelings on our part. 

Okay. 

I am going to stick very closely with the 5 minutes, given the 

lateness of the hour. 

If I understand your testimony correctly, Dr. Massey, you basically are saying that the level of in-migration is about the same 

every year. It is who stays here that has contributed to the increase in the number of people who are here without their documents. 

Is that pretty much a correct summary? 

Mr. MASSEY. As far as I can tell, the rate of in-migration from 

Mexico hasn’t changed much in 25 to 30 years. What changed was 

the rate of out-migration back to Mexico, and that is largely a function of our own border policy. So by militarizing the border with 

your friendly trading nation, you decrease the rate of out-migration. 

Ms. LOFGREN. I have a question. I am just looking at this chart. 

It looks to me, and I am not suggesting that it is causative so much 

as correlative, that the amount of fines for employers, which I 

guess you could use a rough-cut measure of increased workplace 

enforcement, seems to correlate with an increase in the number of 

illegal immigrants here. I don’t know, this is an interesting chart. 

But let me tell a story and ask a question of Mr. Virtue and Mr. 

Motomura, since you are experts in current immigration law from 

your testimony. 

We had a situation in Santa Clara County. Things like this happen all the time, but it was in the newspaper and there was a tremendous outcry in the public as a consequence. And here is the situation. A Jewish woman from Russia, she was a Russian, came to 

the United States. She didn’t apply for asylum; she came on a temporary visa. I believe it was a visitor’s visa. She might have actually been qualified for asylum because of the oppression against 

Jews in Russia at the time, but she didn’t have the right visa. 

She overstayed her visa, she violated the rules in that regard, 

but she met and fell in love with an American man, and they got 

married, and they had a baby. And she was teaching piano in her 

home with the infant and was associated with the Jewish temple 

in Sunnyvale, CA. 

Well, he was an American citizen, born and raised here. They 

went to apply to make her a legal resident and instead they arrested her because she had overstayed her visa and they would not 

allow her to leave, even though she was nursing this infant. And 

then, ultimately, they deported her back to Russia and said that 

she could not come back for 10 years, even though by then her infant, obviously, would have no memory of her at all. 

What in the 1996 Act would lead to that result, and what 

changes would we need to make so that a woman like that would 

be able to stay with her U.S. citizen husband and infant? 

Mr. Virtue and Mr. Motomura, just real quickly. 

57

Mr. VIRTUE. As I understand the case, she actually should have 

been permitted to remain here, even under the laws that existed 

in the 1996 Act, because she came lawfully on a visa, and even 

though she overstayed and was now out of status, her marriage to 

a U.S. citizen should have made her eligible. The agency, however, 

doesn’t have to permit the person to pursue the green card, pursue 

the visa petition and adjust status, but normally they would. So, 

I am not exactly sure what happened in that particular case, but 

I——

Ms. LOFGREN. Maybe it is not fair to ask the particulars of the 

case, but there have been many cases on the 3- and 10-year bar 

that have come to—I hear that all the time on the floor of the 

House where Members on both sides of the aisle say they have 

these situations that are just really very tough ones and how do 

we fix this. How would we fix this? 

Mr. VIRTUE. If she had come without a visa, for example, she had 

come from—well, if she had come in without a visa, then she would 

not be eligible to adjust her status here because of the elimination 

of section 245(i), and the 3-and 10-year bar would prevent her from 

returning to her home country to apply for an immigrant visa without a waiver that is pretty difficult to get. 

So a change would be to eliminate the 3-and 10-year bar. That 

would——

Ms. LOFGREN. Or maybe make it some other way that it is applied? 

Mr. VIRTUE. Exactly. Maybe have a waiver that is more reasonable in terms of approval. 

Ms. LOFGREN. My time is almost up. 

Mr. Motomura, do you have anything to add? 

Mr. MOTOMURA. Well, I would endorse everything that Mr. Virtue said on the legal front. I would only add that this may illustrate a couple of other points. One is that we have processing 

delays that make it very difficult for people to obtain the relief to 

which they are entitled. And, secondly, we have information gaps 

in this and in other areas, particularly where there is no right to 

counsel. You have to add those to the legal issues that Mr. Virtue 

addressed. 

Ms. LOFGREN. Thank you very much. 

I will now yield to Mr. King for his 5 minutes. 

Mr. KING. Thank you, Madam Chair. 

First, Mr. Massey, you testified that the numbers of deaths in 

the desert between 1992 and 2002 essentially tripled over that decade period of time. Would you care to reiterate your analysis of the 

reasons for that? 

Mr. MASSEY. The concentration of enforcement resources in 

urban areas, namely San Diego and El Paso, basically diverted the 

flows around them. 

Mr. KING. And those resources would be? 

Mr. MASSEY. Those resources would be more Border Patrol officers, more equipment, more intensive patrolling efforts and building of walls. 

Mr. KING. And in fact if we looked at the Border Patrol increase 

in numbers, that took place in probably the second half of that decade rather than the first half. So one might believe that the faciliVerDate 0ct 09 2002 12:17 Aug 21, 2007 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\042007\34759.000 HJUD1 PsN: 34759
58

ties had the initial impact on that, that being the physical structures, such as the fencing? 

Mr. MASSEY. People went around the fencing. 

Mr. KING. I thank you. 

And so, Mr. Massey, if we could build—and what you said is 

fencing is effectively, at least for that area, and they will go around 

the end. 

Mr. MASSEY. They will go around the end, right. 

Mr. KING. So if we could build a fence from San Diego to Brownsville—and let me go to the extreme and hypothetical so we don’t 

have to do definitions here—all the way down to hell and all the 

way up to heaven, it was entirely impermeable but directed all 

traffic to the ports of entry and we had our ports of entry beefed 

up so that we had the kind of surveillance there that is more effective than we have today, would you agree that that would solve a 

lot of the illegal traffic across our border? 

Mr. MASSEY. Not unless you had officers patrolling——

Mr. KING. I would agree with that. 

Mr. MASSEY. If you had officers stationed every 500 yards along 

the entire border and built a fence, you would probably——

Mr. KING. Let me say it is impermeable. Our hypothetical covers 

that. 

Mr. MASSEY. Well, if you assume the border is impermeable, 

then it is, by definition, impermeable. 

Mr. KING. Okay. And I am going to go to another point here 

then, and I didn’t think you could actually out-hypothetical me 

here. [Laughter.] 

Let me go to another point. If you were going to import people 

from another population, and they had a violent crime rate of, say, 

three times greater than the one of the recipient population, would 

you expect then to see the crime rate increase in the recipient nation? 

Mr. MASSEY. No, I would not. 

Mr. KING. Would you care to explain that answer? 

Mr. MASSEY. Because migration is highly selective, and the 

criminals aren’t the ones that are likely to be moving. 

Mr. KING. Could you explain why 28 percent of the inmate population in our Federal penitentiaries are criminal aliens? 

Mr. MASSEY. They are largely on immigration offenses, immigration-related offenses. 

Mr. KING. That really, I don’t think, will hold up under analysis. 

But, also, a GAO study that was done and released in April of 2005 

does report to those things and has analyzed the staff funding, and 

I would ask unanimous consent to introduce into the record the 

GAO study from 2005. 

Ms. LOFGREN. Without objection. 

[The information referred is available in the Appendix.] 

Mr. KING. Thank you. 

Just to make a couple of points here is that I think this analysis 

actually does hold up and that if you are going to take a general 

population of a country that is more violent, you can expect at least 

a cross-section of those people to yield a more violent result. 

If there are $65 billion worth of illegal drugs coming across that 

border, that also is a self-filtration process that brings in people 

59

that are more likely to at least be involved in the drug trade and 

one would presume more violent. And if you bring in people who 

demographically are more violent, for example, young men, you can 

expect your crime rate to go up. 

And I would submit that the violent death rate here in the 

United States is 4.28 per 100,000; in Mexico, it is 13.2 per 100,000; 

in Honduras, it is nine times; in Colombia, it is 15.4 times. There 

are no numbers for El Salvador. 

I think that it adds up, and the demographics that we know predict why 28 percent of our population in our prisons are criminal 

aliens, Mr. Massey. 

In the short time that I have—and I thank you for you answers—Mr. Krikorian, would you care to comment on that, on what 

one could expect if one looked at those demographics? 

Mr. KRIKORIAN. Well, there actually has been a report on this not 

that long ago that actually contradicted the point you are making, 

in other words, that immigrants are less likely to engage in crime. 

Unfortunately, the data source used from the census was a corrupted source. The point is we don’t really know the answer to this 

using data. 

What we do know, though, or what we are pretty sure of is that 

the crime rate explodes from the first to the second generation, 

that actually the children of immigrants are dramatically more 

likely to engage in criminal activity than native-born Americans, 

and that is a consequence, clearly, of immigration policy and one 

we have to address. 

Mr. KING. Thank you, Mr. Krikorian. 

Thank you, Madam Chair. I yield back. 

Ms. LOFGREN. The gentleman’s time has expired. 

The gentleman from Massachusetts is recognized for just 5 minutes. 

Mr. DELAHUNT. I thank the Chair. 

These are all very fascinating figures, and we can do an analysis on a gut basis. I have my own analysis about the $65 billion. If we 

didn’t have people consuming the drugs in this country that are 

violating our own statutes, then maybe we wouldn’t be having the 

$65 billion coming from South America. 

So I don’t know if we are doing a very good job about treating 

in a holistic way the—but why don’t—and I would ask the Chair 

and the Ranking Member if there ought to be an examination in 

terms of whether this 28 percent—I mean, if there are immigration 

violations, then let’s find out the answers to this. I think we should 

know that because I think it is important we get on the same page 

as far as the statistics are concerned. 

I have heard everywhere from 8 million to 20 million undocumented, illegal——

Ms. LOFGREN. If the gentleman will yield. 

Mr. DELAHUNT. I will yield. 

Ms. LOFGREN. We are going to have a series of hearings, two to 

three a week, and we will be examining many of the data points, 

because we can argue about our opinions but hopefully we will not 

be arguing about the facts. 

Mr. DELAHUNT. Yes. I mean, my opinion and yours, the Chair, 

and the Ranking Member’s opinion is just simply that, opinion, and 

60

it has no validity in terms of the discussion, with all due respect 

to all of us. 

I would also like to pose a question. You know, we hear a lot 

about our labor needs, and there was a panel yesterday that talked 

about our labor needs, and of course that shifts over time. And one 

problem that was put forth was that it is not timely in nature or 

timely in reality. How do we go about determining what our labor 

needs are to continue to fuel our national economy appropriately? 

And ought there be, if none really exists other than snapshots at 

a particular time, should there be some sort of advisory group, comprised of members of the business community, members from academia, members of organized labor, working with the appropriate 

Federal agency to determine what our labor needs are so we can 

match the availability of the slots for legal immigrants to come into 

this country to assist us in terms of meeting our economic needs 

as far as the workforce is concerned? 

Mr. KRIKORIAN. Is that a question for any of us? 

Mr. DELAHUNT. Yes. 

Mr. KRIKORIAN. I would like to respond to that. I would have to 

say it is really not Congress or the executive’s job to gauge labor 

needs; that is for the market to deal with. And we have——

Mr. DELAHUNT. But I am relating it, Mr. Krikorian, to that 

might be for the market to do, but if we don’t have enough workers 

in this country to meet the demand, then the market is fine, but 

I want to make sure that our economy continues or hopefully prospers. 

Mr. KRIKORIAN. But that is what I would challenge. Labor shortage is just a market signal that employers need to both pay more 

for the available labor and use the available labor more efficiently. 

In other words, my view would be that there should be no solely 

labor-related immigration at all, that people should be admitted for 

some other reason, family members, what have you, and then allowed to make their own way within the labor market. 

Mr. DELAHUNT. Fair point. But my point is, is there any gauge 

that currently exists that——

Mr. KRIKORIAN. There is no good gauge for that. If there were, 

the Soviet Union would still be around, because, in a sense, it is 

a kind of central planning——

Mr. DELAHUNT. No. Don’t try to——

Mr. KRIKORIAN. I am not trying to——

Mr. DELAHUNT. What I am talking about is to have available 

data so that employers, the business community, can make decisions. 

Mr. KRIKORIAN. By the time that data gets to someplace, it is already too old. That is the whole problem. 

Mr. DELAHUNT. My point is then, is it possible to make that data 

timely for a decision, to the other three witnesses? 

Mr. MOTOMURA. Well, what I would add to that is that I agree 

that the market is important and determinative in many respects. 

I would agree with the gentleman’s suggestion that the information 

needs to be had, but I also would caution against seeing labor 

needs as the ultimate driving force. 

Ms. LOFGREN. The gentleman’s time has expired. 

61

And we ask, since people are running for planes, the gentlelady 

from Texas to ask her 5 minutes’ worth of questions, understanding that follow-on in writing questions are available to all of 

them. 

Ms. JACKSON LEE. Let me thank the gentlelady for holding this 

important hearing and also to compliment this Subcommittee for 

the approach which we are now taking, which we have taken in the 

past but now taking it, I hope, with a direct target, and that is to 

try and, if you will, to move toward reasonable, rational but with 

certainty for immigrants, status immigrants who are likewise in 

limbo, those who are documented, and that is, I think, the important responsibility that we have. 

So I thank the witnesses, and I do apologize for not hearing your 

testimony. I was in a Homeland Security hearing. 

But I do know that IRCA, having been here at that time, was 

supposed to be the great savior. I think it was a great boon for lawyers, and I have no angst against them, being one myself, but it 

greatly limited the availability of discretionary relief. I think it 

even presented some of the concerns we have about immigration 

judges who failed to listen to any reputable response on confusion 

that might have abounded and caused the individual before them 

to be in this dilemma. 

We know that the INS lost fingerprints, applications. We know 

that children that were on lines with their families aged out waiting so long. We know that the IRCA restricted access to Federal 

courts, I think, in complete objection to the values we have here 

on due process. It established expedited removal proceedings unfairly, and it imposed mandatory detention, and it also, I think, 

had this uncanny ability to send thousands home deported who had 

never been to their home place, based upon some juvenile infraction that was turned into a felony. 

Some might think that my position is to be loose on immigration, 

and that is not the case. I want to be balanced and fair. 

So let me ask Dr. Massey, we have had a decade of enforcement, 

and as we look at Mr. Krikorian’s graph, I don’t think it shows 

anything except for the fact that we have failed in some way. 

Can we solve this problem with enforcement, enforcement, enforcement or do we need to fix some aspect of what was called 

696—or not 696, what was called the 1996 bill? Do we need to fix 

’96 with some consideration on these restrictive procedures, and we 

do we need to balance enforcement with a reasonable structure of 

immigration? 

Mr. MASSEY. I think that ’96 and other legislation has really created a very unforgiving system and a very rigid system that needs 

to be reformed, because it limits discretion and puts people in impossible positions and forces them out of status, sometimes even if 

they tried to play by the rules. 

In terms of enforcement, I don’t think that more border enforcement is going to help anyone. It is as if a homeowner has built a 

steel wall in the front of his house and he wants to get more secure 

so he is going to build a second layer of steel wall but he has no 

wall on either side and his back door is flapping open. It is not 

going to enhance your security in any way. 

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I think if you want to do enforcement, it should be internal enforcement and for that you would need some kind of tamper-proof 

ID card that an employer could use to verify the right to work in 

the United States. Border enforcement is not a good way to control 

immigration, and my data shows that it backfired. 

Ms. JACKSON LEE. Not the only way. 

Mr. Virtue, I have legislation that has a provision for providing 

immigration judges with discretion when the basis for removal is 

a non-serious incident. As you well know, ’96 wanted to go back 

and get—and I don’t promote any of this, I want to criminals in 

jail, but is it important to train immigration judges and give some 

discretion as lawyers present hardship cases in the courtroom? 

Mr. VIRTUE. I don’t think there is any question about that, Mrs. 

Jackson Lee. It is going to be important to make a judgment about 

where we use our limited resources, because they are always going 

to be limited. And so I think we have to make a judgment about 

whether we continue to expend resources to detain and deport people whose only offense is to be here unlawfully. 

We also have to make a judgment about whether we mandatorily 

detain and eliminate relief for permanent residents who have committed crimes 20 years ago that are coming back because of the retroactive effect of the definition of aggravated felony. 

So I agree with you, that, yes, there has to be discretion restored, 

not just at the immigration judge level, although that is very important, but also at the officer level. 

Ms. LOFGREN. The gentlelady’s time has expired. 

I would note that we have gotten a tremendous amount out of 

this hearing, despite the fact that we were interrupted by more 

than an hour of voting on the House floor, and I do thank all the 

witnesses for their testimony, their written testimony as well as 

their willingness to stick with us for questions. 

Member will have 5 legislative days to pose additional questions 

in writing to the witnesses, and we ask that you answer as promptly as you are able to so that your answers may be made part of 

the record. And, without objection, the record will remain open for 

5 legislative days for the submission of any other additional materials. 

This hearing has helped illuminate numerous issues about the 

1996 Act. I know that it will prove helpful to us as we move forward in our consideration of comprehensive immigration reform. 

We will see everyone at Tuesday, 11 a.m. next week for our next 

hearing, which will begin to examine enforcement, workplace enforcement. 

With that, this hearing is adjourned, with thanks. 

[Whereupon, at 12:55 p.m., the Subcommittee was adjourned.] 

(63)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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SUBMISSION TO THE RECORD BY THE HONORABLE STEVE KING, RANKING MEMBER, 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND

INTERNATIONAL LAW: ‘‘INFORMATION ON CRIMINAL ALIENS INCARCERATED IN FEDERAL AND STATE PRISON AND LOCAL JAILS’’ FROM THE U.S. GOVERNMENT ACCOUNTABILITY OFFICE, APRIL 7, 2005


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ANSWERS TO POST-HEARING QUESTIONS FROM DOUGLAS S. MASSEY, PH.D., 

PROFESSOR OF SOCIOLOGY AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY


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ANSWERS TO POST-HEARING QUESTIONS FROM PAUL W. VIRTUE, FORMER INS GENERAL COUNSEL AND EXECUTIVE ASSOCIATE COMMISSIONER, AND PARTNER, HOGAN

& HARTSON


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ANSWERS TO POST-HEARING QUESTIONS FROM HIROSHI MOTOMURA, KENAN DISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW


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ANSWERS TO POST-HEARING FROM MARK KRIKORIAN, EXECUTIVE DIRECTOR,

CENTER FOR IMMIGRATION STUDIES


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Æ


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