U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

37–096 PDF 2007

S. HRG. 110–110

COMPREHENSIVE IMMIGRATION REFORM

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 28, 2007

Serial No. J–110–13

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Grassley, Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa, 

prepared statement .............................................................................................. 142

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 154

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3

WITNESSES 

Chertoff, Michael, Secretary, Department of Homeland Security, Washington, 

D.C. ........................................................................................................................ 7

Gutierrez, Carlos M., Secretary, Department of Commerce, Washington, D.C. . 5

QUESTIONS AND ANSWERS 

Responses of Michael Chertoff to questions submitted by Senators Leahy, 

Whitehouse, Cornyn, Coburn, Grassley, Feingold, Schumer and Kennedy .... 45

Responses of Carlos M. Gutierrez to questions submitted by Senators Kennedy, Feingold and Cornyn ................................................................................. 116

SUBMISSIONS FOR THE RECORD 

Chertoff, Michael, Secretary, Department of Homeland Security, Washington, 

D.C. ........................................................................................................................ 122

Fair Immigration Reform Movement (FIRM), Center for Community Change, 

Washington, D.C., letter and attachment .......................................................... 131

Gutierrez, Carlos M., Secretary, Department of Commerce, Washington, D.C. . 144

Honduran Unity, American Fraternity and Peruvian American Coalition, 

Miami, Florida, joint letter and attachments .................................................... 149

National Immigrant Justice Center, Chicago, Illinois, statement ....................... 156

(1)

COMPREHENSIVE IMMIGRATION REFORM 

WEDNESDAY, FEBRUARY 28, 2007 

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

The Committee met, pursuant to notice, at 10:08 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Feinstein, Feingold, Durbin, 

Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, 

Graham, Cornyn, and Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you very much for being here. We are 

actually conducting business here in the back. I want to thank the 

Secretaries, both Secretaries—Secretary Gutierrez and Secretary 

Chertoff—for agreeing to appear. 

I also want to thank both of you gentlemen for the private meetings you have had with me and with a number of other Senators 

on both sides of the aisle on the issue of immigration. I have found 

them to be well worthwhile. 

I am hoping that the fact that both of you are here today will 

demonstrate the President’s wholehearted commitment to working 

with us to enact comprehensive immigration reform legislation this 

year, because if we do not have the President’s wholehearted cooperation and support, I think it would probably suffer the same 

fate as it did last year. 

We reported a comprehensive immigration reform bill. Senator 

Specter kept us practically around the clock until we did. But then 

we saw what happened. The Republican leadership decided that 

there would not be a House-Senate conference. Instead, they forced 

through a bill calling for billions to be wasted constructing a 700-

mile fence along our 2,000-mile Southern border, sort of a 

Potemkin fence. And this year we have a renewed opportunity to 

do the right thing, and we should. 

By their votes in the most recent elections, the American people 

have reaffirmed America’s traditional place as a Nation of immigrants. We all are either immigrants, came here as immigrants, or 

have immigrant parents or grandparents. We are not anti-immigrant. We are not racist. We understand people seeking a better 

life for their children and grandchildren as naturally as we do. 

Americans understand that comprehensive immigration reform 

does not mean criminalizing the hard work of law-abiding people, 

2

deporting millions of families who have lived here for years, or 

seeking to wall ourselves off from our neighbors and the world 

around us. Thankfully, the politics of fear did not succeed. Americans rejected the poisonous rhetoric of intolerance in favor of a 

more confident, realistic, and humane approach that finds strength 

in diversity and human dignity. 

If we are going to reclaim America’s promise, we need to keep 

our eyes on the core principles of comprehensive reform. To his 

credit—and I praise the President for this- -he has called for comprehensive legislation and ‘‘an immigration system worthy of 

America.’’ We should all, Republicans and Democratic members 

alike, listen to the President’s words on that. But he also has to 

demonstrate his commitment to those principles and lead Republicans toward achieving that goal, so that not as members of a political party, but as Americans, we can honor our history as a Nation of immigrants and strengthen our future and leadership in the 

world. 

The President has said that no one element of immigration reform can succeed without a comprehensive approach. The Committee-reported bill last year took a comprehensive approach. The 

Senate-passed bill took a comprehensive approach. The House-generated bill that the President signed just before the election did not 

take a comprehensive approach. 

Our broken system has fostered incongruities from coast to 

coast—from our biggest cities to our smallest towns, and from our 

factories to our farms. Reform is overdue. We have to be realistic 

about the millions of undocumented people in this country. We 

need to bring people out of the shadows. When we provide opportunity for people to be responsible, the vast majority will be, and 

we are all going to be better for it. We can and should do everything necessary to protect opportunities for our domestic workers. 

We need to reduce illegal immigration by reforming our temporary 

worker programs to allow more access to the unfilled jobs and 

unmet needs in our economy. These are not either/or propositions. 

We can do both. 

I will give you one example, and I do not mean this to be parochial, but we could show similar examples in every one of our 50 

States. In Vermont, dairying—dairy farms—is more than a job or 

an industry. It is a way of life. Our agricultural economy depends 

on the hundreds of millions of dollars dairy farmers bring to our 

State every year. But that way of life is threatened when family 

dairies cannot find help to milk cows, deliver calves, and keep up 

with chores. Finding help is becoming increasingly difficult for hundreds of Vermont farms, and they have turned to migrant workers 

from Mexico and Central America. Currently, that means an estimated 2,000 foreign workers. We know there is something wrong 

with this hodgepodge arrangement in my State, and other States 

could say the same. We need to do better. We need to bring order 

and common sense to a broken system. In my State, Vermont dairy 

farmers should not have to choose between saving their family 

farms or obeying the law. 

The President has acknowledged that ‘‘you cannot deport 10 million people who have been here working.’’ He said at the Southern 

border last August: ‘‘It’s unrealistic. It may sound good in certain 

3

circles and political circles. It’s not going to work.’’ He went on to 

outline what he called ‘‘the best plan’’ for those here illegally. He 

recommended saying to them, ‘‘If you have been paying your taxes 

and you have got a good criminal record, that you can pay a fine 

for being here illegally, and you can learn English, like the rest of 

us have done, and you can get in a citizenship line to apply for citizenship. You don’t get to get in the front, you get to get in the back 

of the line.’’ He called this as ‘‘reasonable way to treat people with 

respect and accomplish what we want to accomplish, which is to be 

a country of law and a country of decency and respect.’’ I agree 

with President Bush, and those were precisely the elements we had 

in the Senate bill last year. 

We have to create an immigration system for the 21st century 

that honors the great history and tradition of our nation and secures our future. What we must always remember is that immigrants are real people, they have families, they have hopes, they 

have dreams, the same way my grandparents did when they came 

here from Italy. In most cases, these are people who want to contribute, who work hard, who are striving to overcome the fortuitousness of where they were born. They contribute to our armed 

forces. They sacrifice and even die to protect the freedoms we have 

and that they hope to enjoy. They contribute to our economy, to our 

lifestyle, and they help with our most important responsibility 

when they raise America’s children. 

So as I said, as the grandson of immigrants to the United States, 

I will work to reaffirm the promise of America’s lamp beside the 

golden door for the poor and oppressed. 

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

Senator Specter, you showed iron will in moving this forward last 

year, and I will work again with you this year. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Mr. Chairman. I am pleased 

to see you schedule this hearing before February has elapsed. I 

thank you for the comment about iron will last year in moving the 

bipartisan bill out of the Committee. And there is no piece of legislation for the Congress to move on and move on quickly than a 

comprehensive immigration reform bill. 

I am glad to see the two distinguished Secretaries who are involved in this issue—Secretary of Commerce Gutierrez and Secretary of Homeland Security Chertoff—here this morning to move 

this along. And I believe that we can maintain both objectives—the 

objective of rule of law and control of our borders—and at the same 

time maintain America as the beacon of hope for people who wish 

to come here to contribute and join in our democratic way of life. 

We are a land of immigrants, and each of us has his or her own 

story to tell. Both of my parents were immigrants. My mother came 

here in 1906 with her father and mother and a younger brother. 

My father was 18 in Russia in 1911 when the czar was in control. 

The czar wanted to send him to Siberia. He did not want to go to 

Siberia. He heard it was cold there. He wanted to go to Kansas. 

It was a closed question, and he got to Kansas, where I was born. 

4

We last year reported out on a bipartisan basis legislation which 

was comprehensive, which maintained the rule of law, and from 

the activities of the Congress last year and the work of the President’s administration, there have been improvements made on border security. It is tighter now than it was a year ago, but not tight 

enough. And we need to have employer verification, but there has 

to be the Federal responsibility to provide fraud-proof identification 

so that with employers having the opportunity to verify citizenship, 

we can then be in a position to hold them accountable and responsible with tough sanctions. 

We need a guest worker program. There was a commitment to 

that last year by President Bush and by then-Speaker of the House 

of Representatives Dennis Hastert. And we need to be able to deal 

with the 11 million undocumented immigrants so that we can identify those who have criminal records and take appropriate action 

as to them. But it is a practical impossibility to deport 11 million 

undocumented immigrants. And if someone has a better idea than 

the legislation which we passed out of the Senate last year, this 

Committee is open to those ideas. We are prepared to listen. 

It is not amnesty to have legislation which imposes a fine, requires people to learn English, requires people to pay back taxes, 

puts them at the end of the line. It is not amnesty. 

Just one word of caution. I think it is very important that this 

Committee proceeds on a bipartisan basis where all of us know 

what is going on. I have been concerned about reading what is happening behind the scenes in the newspapers, and my staff—Michael O’Neill, a very able chief of staff—had brought to my attention several weeks ago that our staffs were not being consulted. 

And I called that to the attention of Senator Kennedy, who did 

such outstanding work last year, and before, a long history of outstanding work in immigration. And we worked on the McCain-Kennedy bill as the take-off last year for the Chairman’s mark, for my 

mark as Chairman. 

But the staffs were not communicating, and I brought that to 

Senator Kennedy’s attention again, and we had a meeting where 

we were told that staffs would communicate. And as of yesterday, 

we have not been consulted on the draft which Senator Kennedy’s 

staff has being prepared. The old statement is if you want to be in 

at the landing, you have to be in at the take-off, and we have to 

have an exchange of information so that we are prepared to work 

with you. But we cannot segment this Committee. If we do, we are 

not going to have the kind of bipartisan cooperation which Senator 

Leahy and I were able to achieve last year for the betterment of 

the Committee and the betterment of the Senate and the betterment of the Congress. 

So with that one word of caution and concern, I hope we can 

share information and find a way to have both sides of the aisle 

involved every step of the way so that we can get a bill which will 

have bipartisan support. 

Again, I commend you, Mr. Chairman, for scheduling this hearing early, and I look forward to bipartisan cooperation with Senator 

Kennedy, who has been the leader for decades on this subject, and 

with you, Mr. Chairman. Thank you. 

Chairman LEAHY. Over a hundred years with Senator Kennedy. 

5

[Laughter.] 

Chairman LEAHY. Gentlemen, could you please stand and raise 

your right hand? Do you swear that the testimony you are about 

to give before the Committee is the truth, the whole truth, and 

nothing but the truth, so help you God? 

Secretary CHERTOFF. I do. 

Secretary GUTIERREZ. I do. 

Chairman LEAHY. We will go first with Secretary Gutierrez. He 

was sworn into office on February 7, 2005, as the 35th Secretary 

of the U.S. Department of Commerce. I have known many of those, 

but he is the first Secretary, I believe in any Department, who was 

born in Havana, Cuba, came to the United States with his family 

in 1960, joined Kellogg’s as a sales representative in 1975—the 

year I came to the Senate. He rose to be president and chief executive officer in 1999, and I believe that made you the youngest CEO 

in that company’s nearly 100-year history. In April 2000, he was 

named Chairman of the board of Kellogg. He studied business administration at the Monterrey Institute of Technology in—you are 

going to have to help me—Mexico. 

Secretary Gutierrez. Queretaro. 

Chairman LEAHY. Queretaro. Thank you. 

Secretary Michael Chertoff has appeared many times before this 

Committee. On February 15, 2005, as a circuit court of appeals 

judge, he was sworn in—resigned from that and was sworn in as 

the second Secretary of the Department of Homeland Security. He 

had been on the Third Circuit Court of Appeals before. He was previously confirmed by the Senate, served in the Bush administration 

as Assistant Attorney General for the Criminal Division. Before 

joining the Bush administration, he was a partner in the law firm 

of Latham & Watkins. From 1994 to 1996, he served as Special 

Counsel to the U.S. Senate Whitewater Committee. Prior to that, 

he spent more than a decade as a Federal prosecutor, including 

service as a U.S. Attorney for the District of New Jersey, graduated 

magna cum laude from Harvard in 1975, magna cum laude from 

Harvard Law School in 1978, and from 1979 to 1980 served as a 

clerk to Supreme Court Justice William Brennan. He is a friend of 

many of us on this Committee. 

So, Secretary Gutierrez, please. 

STATEMENT OF CARLOS M. GUTIERREZ, SECRETARY, 

DEPARTMENT OF COMMERCE, WASHINGTON, D.C. 

Secretary GUTIERREZ. Thank you. Chairman Leahy, Ranking 

Member Specter, and members of the Committee, I am pleased to 

have this opportunity to discuss immigration reform with you, and 

I thank you for your leadership and your hard work on this important issue. 

For several years, we have been in the midst of a vigorous debate 

about the role of immigration in our country. This is not the first 

time, of course, in our Nation’s history that immigration has been 

a source of contention in the halls of Congress and communities 

across America. 

One result of this passionate debate is that many words in our 

immigration discourse have lost their meaning, with people often 

just talking past each other. However, when you peel back the 

6

rhetoric and actually have a conversation with members on both 

sides of the aisle and on all sides of the issue—as I have on dozens 

of occasions over the past year—you find that while there are some 

policy differences, we are much closer to common ground than one 

would expect. 

Secretary Chertoff and I come before you today on behalf of the 

President with a very simple message. We believe that with some 

hard work a solution can be found, and we pledge to roll up our 

sleeves and work with you on a bipartisan basis to find a solution 

that serves our National interest. 

We believe that there are three goals central to a successful immigration solution: the first is national security, two is economic 

growth, and the third is American unity. 

First, we must have a focus on national security. We must secure 

our borders and implement a system that will enable us to know 

who enters our country and who is already here. In order to hold 

employers accountable, we need to give them new tools to verify 

the immigration status of workers. We must establish a tamperproof biometric identity card for the temporary worker program 

which will enable us to verify, and also an employer verification 

data base, and I happened to bring with me a sample of a biometric 

card, very easy, the technology is very much available. 

Second, economic growth is essential for our continued prosperity 

as a Nation, and we recognize that immigration has been a crucial 

part of our economic growth. Immigrants make up 15 percent of 

our labor force and account for about half of labor force growth 

since 1996. Even so, the reality is that there are thousands of jobs 

that aren’t getting filled by Americans. There were 4.4 million job 

openings in December, and our unemployment stands at 4.6 percent. I have met with farmers from around the country whose fruit 

lay rotting in their orchards. Businesses across the Nation report 

difficulty filling jobs that are essential to their growth. Our immigration policy must recognize the reality of our labor needs by creating a temporary worker program. 

The third goal of our comprehensive immigration policy is American unity. We are a society governed by the rule of law, and we 

should not reward unlawful behavior. And we must also find a solution that brings workers out of the shadows and into the mainstream without amnesty. We believe we can do that. 

Many advanced economies face declining populations and struggle to assimilate immigrants. The U.S. can make immigration a 

competitive advantage because assimilation is a historic national 

strength. This can be an advantage for us 10, 20, 30, 40, 50 years 

down the road. 

Assimilation also involves learning English. English is the language of custom and opportunity, and we do immigrants a great 

disservice if we do not urge them to learn English. In fact, one of 

the very best things that ever happened to me when I came to this 

country is that I was forced to learn English. 

In the end, we must craft a solution that is viable and workable, 

one that will not have us back in this room debating the same 

issue in 10 years. Our solution should enable the future flow of immigration to be orderly, legal, and controlled. The good news is that 

all of the pieces necessary are on the table. The question, of course, 

7

before us is: Do we have the political will to assemble them in a 

way that furthers the national interest? 

Mr. Chairman, I believe we do, and I look forward to working 

with you on this important matter. Thank you, sir. 

[The prepared statement of Secretary Gutierrez appears as a 

submission for the record.] 

Chairman LEAHY. Thank you very much, Mr. Secretary. 

Secretary Chertoff? 

STATEMENT OF MICHAEL CHERTOFF, SECRETARY, 

DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

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

Senator Specter, and other members of the Committee. I also appreciate the invitation to come and speak to you today about the 

need for immigration reform, and I appreciate the leadership that 

members of this Committee have shown in moving forward on this 

very important issue to the Nation. I fully associate myself, obviously, with the testimony of Secretary Gutierrez. I also submitted 

a full statement which I request be made part of the record and 

which I will spare you repeating now. 

I would like to, however, very briefly touch on some of the highlights of progress that we have already made on some of the elements of a multi-pronged approach to immigration reform, including effective control of the border, building a tough interior enforcement program, and moving forward with respect to other dimensions of what will be a comprehensive solution to this issue. 

Since we launched the Secure Border Initiative last year, we 

have made some significant progress in gaining control of the border. This does not mean that we are declaring victory. What it does 

mean, though, is that we have begun to turn the tide, and this 

ought to be a source of encouragement, and it also needs to increase our determination to get the job done. 

We have increased the boots on the ground, adding new Border 

Patrol agents and enlisting the National Guard in Operation Jump 

Start. Importantly, we ended a pernicious practice called ‘‘catch 

and release’’ at the border, in which we used to release large numbers of non-Mexicans into the community. There was a story in the 

New York Times a few days ago that talked about how it was such 

a received wisdom that non-Mexicans would be released in order to 

disappear that people actually were told to turn themselves into 

the Border Patrol as soon as they crossed the border because it 

would mean that they could then make their way to the interior 

conveniently. We have reversed and ended that practice at the border, and this has begun to show some real results. 

In the three quarters of the year that have passed since we put 

into effect Operation Jump Start, we have seen in each quarter a 

significant decline in the number of people that we are seeing 

crossing the border and an even more significant decline in the percentage of apprehensions that reflect non- Mexicans. Both the statistics and the anecdotes support the view that this is a direct reflection that deterrence works, if we are determined and tough 

about enforcing the rules at the border. 

We have been equally tough enforcing the law at the work site 

in the interior. Last year, in fiscal year 2006, we arrested 716 indiVerDate 0ct 09 2002 10:20 Aug 09, 2007 Jkt 037096 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37096.TXT SJUD1 PsN: CMORC
8

viduals on criminal charges and more than 3,600 on administrative 

charges. The increase in criminal prosecutions reflects 7 times the 

number of arrests that we saw in 2002, and it is the most significant year of worksite enforcement in living memory. In fact, in the 

last couple of weeks, we saw ICE agents raiding and arresting senior executives at the Rosenbaum-Cunningham International company, which provides cleaning services at several national restaurants across the country. And, we saw some guilty pleas yesterday from individuals at the IFCO Corporation, which was the subject of a raid earlier last year. 

Continuing our success in the area of tough enforcement at the 

border and the interior will require continued support from Congress. Among other important things that we have previously requested are additional sanctions for those individuals who dodge 

our checkpoints that we use in order to control the flow of illegal 

migrants or those who defy the orders of a DHS officer. We need 

to make it clear that not obeying the law will be criminally punishable. 

We need to continue to move forward with tough sanctions for 

those employers who willfully violate the immigration laws by 

building their businesses on the premise that they will be getting 

illegal migrants to do jobs. That means we need to continue to 

build and roll out our Electronic Employment Verification System, 

which is one very useful tool in helping employers verify the status 

of their workers. 

Finally, as the President has said, we have to create a lawful 

mechanism so that foreign workers can come into the United 

States and fill jobs that will otherwise go unfilled. Having a regulated channel for this kind of labor force is actually going to help 

our border enforcement. It is going to reduce the pressure on the 

border that is caused by the huge economic demand drawing the 

tens of thousands of migrants to cross the desert or cross the Rio 

Grande River to work in the United States. Bringing these people 

into a regulated, visible system will help our ability to promote national security. 

Now, we have talked with a number of Members of Congress, you 

and your colleagues, over the past few weeks, and we will continue 

to do so to listen carefully to your views on the issue of how precisely to craft an approach to dealing with this longstanding, difficult, but very important issue. And, we hope to return to you soon 

so we can work together in a bipartisan way on sound and long 

overdue immigration reform. 

But, let me conclude by making one point. What is critical to 

anything that Congress does is workability. Whatever measures 

are passed must work in the real world, and that seems to me to 

mean at least three general principles have to be followed. 

First, we need to have clear and consistent standards that will 

protect applicants, guide those who have to review applications, 

and defend against fraud. The more confusing and complicated a 

process is, the more arbitrariness and error find their way into that 

process. 

Second, we need to carefully design judicial review of application 

decisions to ensure that any temporary worker program that is put 

into effect treats applicants fairly but does not become a source of 

9

never-ending litigation. As a result of the Immigration Reform and 

Control Act of 1986’s judicial review provisions, cases continue to 

jam Federal courts 20 years later. We still have not litigated our 

way out of that measure after two decades. 

Finally, there cannot be an amnesty, and that means we cannot 

give those who are here illegally because they have broken the law 

a leg up and an advantage over those who have played by the 

rules. 

I think those general principles, which are consistent with what 

the President said last year, are important as we move forward on 

this issue. We look forward to working with the Committee and 

with Congress to build on what we have done at the border and 

to give the American people the immigration system that they have 

a right to expect. 

Thank you. 

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

Chairman LEAHY. Thank you. 

Secretary Gutierrez, last year when you testified, you spoke 

about the advantage people have if they learn different languages, 

and I agree we should do a lot more of that in our country. You 

also spoke of the advantage to immigrants learning English. I 

agree with you there. Both my mother and my wife had to learn 

English as their second language. But are you saying the administration would support making English the official or national language of the United States by law? 

Secretary GUTIERREZ. The point I was making is that— and I go 

back to what the President said when he talked about immigration, 

that if you learn English, you can go from cleaning an office to 

managing an office. 

Chairman LEAHY. But you are not asking the Congress to legislate in this area of language? 

Secretary GUTIERREZ. No. We believe that there is a lot that we 

can do to ensure that immigrants understand that it is in their interest to learn English, to be part of society, and to be integrated. 

Chairman LEAHY. There I absolutely agree. Again, my grandparents, my mother, my wife all learned English—I certainly understand that. 

The President has also expressed support for a plan that includes 

bringing millions of undocumented people in the United States out 

of the shadows onto a path toward earned citizenship—not amnesty but earned citizenship. And I agree that we need a plan to 

realistically deal with this current situation. 

Is the administration committed today to a path to citizenship as 

part of an overall comprehensive immigration reform? Is that both 

the President’s and the administration’s position? 

Secretary GUTIERREZ. One of the principles that we have, Mr. 

Chairman, is to ensure that people who are working in the country 

today illegally come out and enable us to know who is here, because it is a national security concern. We do not know who is 

crossing. We do not know who is here. Once they have been identified, they would have to be given either legal status to work here 

or not. 

10

In terms of a path to citizenship, that is something that we need 

to discuss, we need to think through. There is a path today to citizenship, so it is not as though we need to create a new path to citizenship. 

Chairman LEAHY. But if you want these people to come out of 

the shadows, aren’t you going to have to have some kind of a path 

to citizenship available to them? Otherwise, what is the incentive 

to come out of the shadows? 

Secretary GUTIERREZ. That is a good question. I believe, Mr. 

Chairman—and it is hard to get a precise sense of this, but I believe that what people want first and foremost is to have legal status. And I am not sure that everyone wants to be a U.S. citizen. 

Many just want to be able to work, and if they can work legally, 

1 day they would like to go back home. So, I do not think that citizenship is what will make them come out of the shadows. It is just 

the opportunity to have legal status so they do not have to be in 

the shadows. 

Chairman LEAHY. Well, let’s talk about this. Again, it is so easy 

to say amnesty, not amnesty. Will the administration and the 

President help us educate members of the public, actually educate 

Members of Congress that if you have comprehensive reform that 

consists of requirements to pay back taxes, fines, and makes it 

clear what your criminal history or lack of criminal history is, that 

that is not amnesty? Can we get some education from the administration to that effect? Or do you agree with that? 

Secretary GUTIERREZ. Well, as I think about amnesty, for me it 

is unconditional pardon, and if we start there, we have to move 

away from that and ensure that our principles and our conditions 

fit the fact that the law was broken. 

How we do that I think is a matter of debate, and I think we 

have to work that through, and that is part of the complexity. 

Chairman LEAHY. But we are not going to really have a debate 

on it without the involvement of the administration. This cannot be 

done as a one-side or one-party piece of legislation. 

I assume, Secretary Chertoff, that you could not realistically find, 

apprehend, and deport the millions of people who are here today. 

Some you could, but you could not begin to get anywhere near the 

majority of them. Is that correct? 

Secretary CHERTOFF. I think it would be a gargantuan task to 

try to locate, detain, and deport 12 million people. 

Chairman LEAHY. Then don’t you have to have in a comprehensive immigration policy some way for most of them—if you are not 

going to get them out of here, to find some way of legal status? 

Now, as Secretary Gutierrez has just said, some do not want to be 

citizens. I mean, you have a lot of people who come here to work. 

They want to work here for a period of time, earn some money, and 

go back home. They do not want to have U.S. citizenship. Some are 

here as students and for other reasons. Some, however, their children are born here, they decide to go to school here, they are establishing roots here. They do want to become citizens. 

Either way, don’t you have to have a comprehensive plan to 

make their status here legal? 

Secretary CHERTOFF. Well, I think what Secretary Gutierrez said 

is correct, that one needs to give people the inducement of getting 

11

legal status in the country if they are going to come out of the 

shadows. That has got to be an element of immigration reform because brute force alone will not deal with the challenge that we 

have with all the undocumented workers in the country. 

Chairman LEAHY. Thank you. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

We have to move with dispatch on this very important matter. 

It is worth noting the prodigious efforts which were undertaken in 

the last Congress. We had six hearings at full Committee, six 

markups, with a total of 357 amendments being circulated and 60 

votes taken at the Committee level. We were given a deadline by 

the Majority Leader, and we came back the day after a recess, convened early in the morning, worked about 10 hours, reported a bill 

out. On the Senate floor, there were 227 amendments filed, 37 roll 

call votes were held, 27 amendments were adopted, and the bill 

was finally passed by a margin of 62–36. And then we could not 

come to agreement with the House of Representatives, which wanted an enforcement bill only. 

I review those prodigious efforts made last Congress to emphasize the kind of tough job we have ahead of us, and it is going to 

require cooperation by both the Congress and the administration to 

get there. 

The big obstacle we faced last year was the issue of amnesty, and 

if someone has a better idea on how to handle these 11 million undocumented immigrants, we are open to suggestions. But this is 

what last year’s bill provided: a criminal background check, a 

meaningful penalty, back taxes, stand in line, learn English, and 

having a job. 

Secretary Gutierrez, is there anything more that can be done to 

impose sanctions and penalties than that to avoid the categorization of amnesty? 

Secretary GUTIERREZ. I think the other thing I would just add to 

that is to ensure that they do not have an advantage, that somehow they do not have an advantage because they happened to come 

to the country illegally, and that would add to your list. 

Senator SPECTER. Well, we have provided that by requiring they 

go to the end of the lines. 

Secretary GUTIERREZ. That is right. 

Senator SPECTER. If somebody can come up with a tougher line, 

we are open to suggestions. But it seems to me that that is not amnesty, and I think to be successful in getting this bill passed, we 

have to persuade first the House of Representatives—or perhaps 

first the American people and then the House of Representatives 

that it is not amnesty. 

You came to this country from foreign shores. You are Exhibit A. 

My parents are Exhibits B and C. We have lots of exhibits. But 

how do we persuade the American people that this is as much as 

can be done in dealing with the 11 million undocumented immigrants? We will deport those with criminal records where they are 

not qualified. That is manageable. But you cannot deport 11 million people. 

What more can be done, Secretary Chertoff, on that subject to 

deal with the critical issue of amnesty at the outset? 

12

Secretary CHERTOFF. Obviously, Senator, things like penalties, as 

Secretary Gutierrez said, making sure that there is no advantage 

to people who came here illegally, requirements like learning 

English, and things of that sort. Those are certainly measures 

which I think would demonstrate to a lot of people that the individuals are getting right with the law. 

Now, you are going to get differences of opinion about what kind 

of penalty is appropriate, as you do in almost every other area. 

But, it seems to me this is— 

Senator SPECTER. Mr. Secretary, I have to interrupt you. I want 

to ask one more question before my time expires, and I want to observe the time meticulously. 

I would appreciate it if both of you would think through this amnesty issue and find the best arguments we have or what else can 

be done to eliminate this argument, because it is an impediment 

in dealing with the 11 million undocumented immigrants. 

I think we need to focus on the advantages which we derive from 

having talented people come to this country. And other countries 

frequently complain about the brain drain which comes to this 

country. Bill Gates of Microsoft, an enormously successful entrepreneur, wrote just last Sunday in the Washington Post, on the 

need to expand the number of H–1B visas to improve the number 

of people who can come to this country, who want to come to this 

country to meet our changing scientific and technological industrial 

needs, with only 65,000 temporary visas now. 

Secretary Chertoff, what do you think we ought to do on that 

issue? 

Secretary CHERTOFF. Well, I do know—and I know that Secretary Gutierrez can talk about this, too—this competitiveness 

issue is a big deal. Obviously, this is a little bit different than the 

issue of the illegal migrants who are coming to pick lettuce or work 

in hotels, because we are talking about knowledge-based workers. 

Nevertheless, obviously, Congress is going to want to probably look 

generally at how we deal with the visa issue, recognizing that first 

and foremost our immigration policy should be one that serves the 

United States. That is our No. 1 priority here. 

Senator SPECTER. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. And thank you, 

Judge Chertoff, Mr. Gutierrez. Thank you very much for being 

here. 

I think we have just had a review about what the word ‘‘amnesty’’ means and also what is in the legislation. In this legislation 

there is no special treatment. There is no free pass. There is no 

jumping of the line. There is no total forgiveness. There is no unconditional pardon. 

Senator Specter has pointed out the requirements that were in 

the legislation the last time. I imagine it will be included in this 

legislation. 

Let me mention just one of the requirements, and that is learning English. Secretary Gutierrez, at the present time we have 

18,000 people in my city of Boston, Massachusetts, who are in line 

trying to learn English at the present time, and there is not adeVerDate 0ct 09 2002 10:20 Aug 09, 2007 Jkt 037096 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37096.TXT SJUD1 PsN: CMORC
13

quate funding for that program. And I think we have to try, if we 

are going to make this a requirement—which I support—we have 

to be able to give the kind of opportunities for people to learn if 

they desire to do so. We can talk about that at another time, but 

I make the point now. If you want to make a brief comment, I really want to get on to other things. 

Secretary GUTIERREZ. I think it is a great point, and learning 

English is job No. 1, and it opens up vast opportunities. 

Senator KENNEDY. Now, let me ask you, Mr. Chertoff, we understand that the President is going to be involved in a comprehensive 

legislative effort. Am I correct in that understanding? 

Secretary CHERTOFF. As the President said last year, he is interested in being very engaged with Congress in immigration reform 

across the board. 

Senator KENNEDY. And he wants to work with us to get that 

passed. 

Secretary CHERTOFF. That is correct. 

Senator KENNEDY. In the Senate. And he will also work with us 

to get it passed in the House of Representatives. 

Secretary CHERTOFF. That is correct. 

Senator KENNEDY. He believes that this is in our national interest to get this job done. 

Let me ask you, from your own review, what it takes in terms 

of these elements to develop the—you have outlined in the legislation this very detailed program of what is necessary in terms of 

border security. What is your own best estimate of the time it is 

going to take to develop the tamper-proof card, both in terms of 

availability in country, and also in terms of enforcement here? 

Secretary CHERTOFF. Well, of course, as we currently stand right 

now, there is no legislative mandate or appropriation to have a 

tamper-proof card in this area. But, we do have other similar mandates in other areas. 

The technology exists. The business processes exist. We are in 

the process of using them now in a variety of different areas. Once 

Congress passes a measure that actually lays out the dimensions 

of the requirement, it is simply a question of scaling up the technology and funding the technology in order to make sure you can 

distribute the card. But, the technology exists. I think that Secretary Gutierrez has a display card. So, it is not a new technology. 

Senator KENNEDY. Well, can you give us at least a ball park 

timeframe? The technology is out there. The resources have to be 

made available. But then we are talking about what period of time? 

Are we talking about 12 months? Are you talking about 18 months? 

Are you talking 2 years? What is generally the estimate of the administration? 

Secretary CHERTOFF. Again, since we do not have an actual piece 

of legislation to work off of, it is hard to give an estimate. I can 

give you examples from other kinds of measures we have now. We 

have a Western Hemisphere Travel Initiative measure to get a secure card. We have a transportation workers measure. We have a 

REAL ID measure. These are looking to take anywhere between a 

year, maybe 18 months, and 2 years. Of course, that requires that 

everybody be aggressive and disciplined in moving forward with 

these efforts. 

14

Senator KENNEDY. My time is moving along. I would be interested also in your estimates of what it will take in terms of the adjustment of status or the earned legalization, what your sense of 

timing would be on those. 

In this legislation, we crack down on passport fraud, visa fraud, 

document fraud, illegal entry, smuggling, gang activities, firearms 

offenses, drunk driving, money laundering, all of those activities. 

As a former judge, don’t you agree that we must ensure that all 

the people in our system are going to have at least an opportunity 

to be heard before an impartial adjudicator or not— 

Secretary CHERTOFF. Well, I agree everybody— 

Senator KENNEDY. I just want to mention that if you get a speeding ticket, you have that kind of opportunity. We are talking about 

more serious issues here. How are we going to make sure that we 

are not going to catch Americans, legitimate Americans, up in this 

whole process and that their rights are going to be preserved? 

Secretary CHERTOFF. I do agree we ought to preserve people’s 

rights, but I do have to caution this: Right now, when people outside the United States apply for adjustment of status, if they are 

refused entry, with very rare exceptions, they do not get access to 

a lot of litigation. And, the one thing I will say to you is that you 

have to be very careful that creating a lot of process, a lot of judicial review, could break any system of immigration reform. I can 

tell you, having been a judge, frankly, and having sat on cases involving immigration review, they are time-consuming. If we wound 

up with millions of people challenging every determination in the 

Federal courts, I think the judges would be unhappy, and I think 

you would see a very, very serious practical problem. 

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

Chairman LEAHY. Thank you, Senator Kennedy. 

Senator Hatch? 

Senator HATCH. Thank you, Mr. Chairman. 

I was interested in your comment, Secretary Gutierrez, that 

many of these folks, these approximately 12 million people, probably do not want to be citizens. They just want to support their 

families. They want to be able to work. And they may very well be 

willing to, if the approach is reasonable, become guest workers. 

Do you have any idea of approximately how many of them would 

not choose to be citizens if they had their— 

Secretary GUTIERREZ. I do not have a number, and I heard Secretary Chertoff use some statistics about a previous experience we 

have had. 

Senator HATCH. Well, maybe you want to give that. That is on 

the Simpson-Mazzoli bill, I guess. 

Secretary GUTIERREZ. Anecdotally, and just what I have read, it 

is that many people would like to go back home, after having 

worked in the U.S., and perhaps live the rest of their life there. 

But today we do not know that because they are not coming out 

because— 

Senator HATCH. Well, they are afraid to come out right now. I 

suspect that is true. When the Simpson-Mazzoli came up and was 

passed in 1986, I voted against it because I thought that it did give 

blanket amnesty. But do you have any statistics, Secretary 

Chertoff, on how many of them actually became citizens under the 

15

amnesty approach? They at least called it amnesty back then. We 

have not done it in the Senate bill. We have not called it ‘‘amnesty.’’ 

Secretary CHERTOFF. The statistics that I have been given indicate about a little over a third applied to become citizens. So, the 

majority, a significant majority, did not choose to become citizens. 

Senator HATCH. That is interesting. On the biometric cards that 

you raised, if we are going to have some absolute way of identification so that our businesses are not called to the law enforcement 

aspects of this, but have a way of figuring out who is and who is 

not illegal, then biometric cards may be the way we are going to 

have to go. But we did pass REAL ID in the—I think it was the 

supplemental appropriations bill last year. Or was it in the 2005 

appropriations bill? But, we are finding in Utah that they believe 

it is an unfunded mandate that puts a tremendous burden on the 

States. And it is estimated that it would cost about $11 billion 

overall to implement that program and then an ongoing set of costs 

thereafter. 

I do believe we have got to go to that, but we cannot just saddle 

the States with that type of billions of dollars. I think in Utah it 

would cost about $5 million right off the bat, and probably an 

equivalent amount of money to keep it going thereafter. What do 

you have to say about that? 

Secretary CHERTOFF. I am going to have more to say tomorrow 

because we are going to issue a proposed rulemaking, which I think 

will answer some of the questions and relieve some of the anxiety 

about this. But, I do need to make this point: Secured driver’s licenses were maybe the top recommendation made by the 9/11 Commission. It is not only critical for national security and homeland 

security, it also happens to be a very big step forward in protecting 

privacy. 

So, while we want to work with the States to have a disciplined 

but reasonable approach to implementation and we are going to see 

if there are some ways we can give some financial assistance, at 

the end of the day, this is a very, very important 9/11 Commission 

recommendation that we are committed to seeing put into effect. 

Senator HATCH. I like what I am hearing from both of you today 

in large measure because you are making it very clear that you do 

not want this to be an amnesty program. There are some tough 

cases, though: people who have been here decades, are good members of the community, religious people, hard workers, family oriented. We are going to have to resolve those, and how we can resolve them—I think the current system is in such a shambles that 

it is pathetic. 

So the more we can reform the current system, and back to H–

1B, the Chinese are educating 300,000 engineers a year. We educate 60,000, and half of them are foreigners, and many of whom 

then go home to their countries and educate their people in competition with us, where they would love to stay here and work as 

maybe not citizens but at least as people who have the credentials 

to work. I think Bill Gates is absolutely right on that, and we need 

to up those figures. But every time we try to up the figures on the 

H–1B Ph.D. engineers and scientists and others that are going to 

be crucial to keep our country moving ahead, we then have the 

16

other side coming out and saying, well, you are being unfair because you are taking care of them but you are not taking care of 

the average person. 

How are we going to balance that? Because I personally believe 

we have got to expand the H–1B program, as Bill Gates and almost 

everybody in the high-tech world believes, and then, of course, at 

the same time do some reasonable things without granting amnesty and having people earn their right to citizenship the way you 

have been talking here today. I would be happy to hear your point 

of view. I would not mind having you talk about the basic pilot program, too, and what is working and what is not. 

Secretary GUTIERREZ. Senator, just on the issue of high-skilled 

workers, what I hear very often from businesses in the high-tech 

field and other fields is they cannot fill their high-skilled engineering, science-based jobs as quickly or as readily as they would like. 

We have students come over from the world—India and China primarily. They get the best education money can buy, and then they 

have to go back home. They cannot stay here and apply their skills. 

We believe that we should be able to do better than that in order 

to serve our competitiveness needs as a Nation. 

Secretary CHERTOFF. With respect to Basic Pilot, Senator, let me 

just say that has been a successful program. It needs to scale up. 

What it enables employers to do is to check online to see if they 

are getting a bogus Social Security number or one that does not 

match the name. 

I do have to make it clear that it is not a total solution. When 

people have outright identity theft, where they steal a real name 

and a real number, it is not picked up by Basic Pilot. For that reason, I believe there is legislation pending now in the Senate to lift 

the current restriction that prevents the Social Security Administration from advising us when they detect cases where identity 

theft appears to be going on because the same number and name 

are appearing in multiple locations. 

Senator HATCH. Well, thank you both. I appreciate you being 

here. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Hatch. 

It is interesting when you talk about the unfunded mandate on 

the States for driver’s licenses. It is a problem with mine. Would 

the administration, if they are going to push for this driver’s license, would they agree to propose in the President’s budget to 

fund it? 

Secretary CHERTOFF. I think, Mr. Chairman, you have the President’s budget. It has been submitted, and I think there is some 

funding. But, certainly I do not think the budget proposes to pick 

up the entirety of the cost. 

I will say that I have spoken to a number of Governors and 

States that actually are in the middle of doing an overhaul of their 

license process, and they welcome moving forward with this. What 

they are looking for are uniform standards, and we expect to provide those in the next couple of days. 

Chairman LEAHY. OK. The Republican Governor of Vermont disagrees with that. 

We will set the clock back. Senator Feinstein? 

17

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

Thank you both very much for being here today. I come from the 

State, as you know, which has the largest number of people, newcomers coming into the State and generally staying in the State. 

I am now of the opinion that we may have reached too far in the 

comprehensive bill and that we ought to take a look at doing this 

in tranches. We have passed the first tranche, which was the border security. The second tranche, it seems to me, are two things: 

The ag jobs bill, because it is a system for legalization that is not 

an amnesty in an industry that depends on the undocumented 

worker. And it would essentially provide a path to legalization for 

5 million people who are willing to work in agriculture for up to 

3 years. It has also passed out of this Committee. 

The second act would be the Dream Act, which has also passed 

out of this Committee. 

My own view of the last bill now was that the visa expansion 

was too wide, too deep, and that the tranche Hagel-Martinez compromise subjects itself to fraud and was problematic, and that the 

guest worker program was too big. It is my view that if we are able 

to find a path to legalization for the 11 million people that are 

here, the guest worker program as such, outside of H–2A and ag 

jobs, is not really mandatory or necessary. 

The question I wanted to ask you both, in looking at how the 11 

million people could be handled to avoid the amnesty claim and to 

create a structure, the thought occurs as to whether we could use 

a point system. In other words, an individual would be accorded 

points—points for length of time in the country, for education, for 

language, for children who might be legal, for community service, 

for the absence of a felony record—so that those with the most 

points would come first. As you know, Canada uses a point system 

with respect to legal entries. 

My question would be: Have you looked at this as a possible 

methodology for a structure to be able to handle the 11 million? 

Secretary CHERTOFF. We are aware that people have suggested 

something of that sort, and we know that other countries have 

that. You know, one question is: Are you talking about a point system for those who are admitted into the program in the first instance for temporary work or for those who would at some point 

be eligible for citizenship? 

Senator FEINSTEIN. For those who are already here in undocumented status, the 11 million, Secretary Chertoff, that you responded to, large in number, difficult to handle. 

Secretary CHERTOFF. I think I would say that what needs to be 

considered in addressing that approach—which certainly, you 

know, in principle there are some interesting elements and some 

attractive elements—is first of all, whether you are going to create 

an incentive, at least in the first instance, to bring those 11 million 

into a regulated system, because that is ultimately at the end of 

the day what we have to do to manage that problem. 

Senator FEINSTEIN. The answer would be yes. 

Secretary CHERTOFF. And second, is whatever system is put in 

place cannot have so many different variables that it becomes difficult to adjudicate. It is one thing to say, for example, that lack 

of criminal record has to be adjudicated. We all agree on that. 

18

When you talk about length of time in the U.S., what kind of documents and proof will establish length of time? Is it going to be a 

complicated process? Will we accept testimony? Will we accept affidavits? And then, whatever the answers to those are, you have to 

multiply it by 11 million. 

So, without suggesting that it is an absolutely great idea or an 

absolutely difficult idea, it is certainly something worth exploring 

as long as we keep workability and practicality very much in the 

forefront of how we look at. 

Senator FEINSTEIN. Thank you. 

Secretary Gutierrez? 

Secretary GUTIERREZ. Yes, I agree with Secretary Chertoff. There 

are some interesting aspects to it. It really comes down to can we 

execute it, can we implement it, because simplicity I think is going 

to be our best friend here. And as we add variables, it is going to 

make it more complex and more difficult to execute. So for me it 

would be an issue of workability. 

Senator FEINSTEIN. I would like to work with you to try to see 

if we cannot come up with something that would be acceptable. The 

task is so daunting because what you are saying is if it is complicated, we cannot handle it because there are so many people. 

Well, if there isn’t a structure to it, if there are not requirements, 

it becomes in the lexicon of some an amnesty. And that is really 

not what we are talking about. We are talking about people who 

have been here, who have worked, who have families here, who are 

not going to go home. And it seems to me that there should be a 

methodology that we can work out to avoid the amnesty, to do it 

with some order, and to have some understanding of what it is that 

we are doing. 

Secretary CHERTOFF. I think we agree with that, and I think 

that, again, the devil is always in the details, as they say, on the 

practical side. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator. 

Senator Grassley? 

Senator GRASSLEY. Thank you, Mr. Chairman. I am going to ask 

my questions of Secretary Chertoff. 

I monitor fairly regularly the actions of the U.S. Citizen and Immigration Service. The Director is committed to preventing fraud. 

We have seen some improvement. There are still some major problems with the processing of immigration benefits. This agency cannot handle amnesty for 12 to 30 million people when it cannot even 

handle its current caseload. The agency is 99 percent funded by 

fees. But how does the agency plan to use fees to implement an 

amnesty program, one? Two, given the President’s request of $30 

million for fiscal year 2008 which would go toward an employment 

verification system, do you really think it is feasible to implement 

a temporary worker program this year? And three, and last, what 

are you doing to prepare for the inevitable mess that an amnesty 

program would create? 

Secretary CHERTOFF. Well, first of all, I am going to differ by saying I think the President has been crystal clear that he does not 

want to have an amnesty program. So— 

19

Senator GRASSLEY. But my answer to that is if it walks like a 

duck and quacks like a duck, it is a duck. But go ahead and I will 

accept your— 

Secretary CHERTOFF. Well, I am going to respectfully disagree 

with this being applied to what the President has been talking 

about. 

Senator GRASSLEY. OK. Go ahead. 

Secretary CHERTOFF. In terms of the issue of our ability to manage the caseload, I would note, for example, that we have essentially eliminated the backlog over the last few years, which is what 

the President promised when he came into office. There is no doubt 

that if we were going to need to assimilate and get secure identification for the people who are in this country illegally and also any 

temporary workers, there would need to be at least a significant 

initial investment in money and time to design and fund the system. The hope is the money would be recouped through fees, so I 

think net we would not be out of pocket, but I think we have to 

be completely candid that there would need to be some significant 

resources applied to this over the period of time it takes to implement it. 

Senator GRASSLEY. OK. The next point is in regard to getting a 

briefing. My staff has asked for a briefing on Robert Schofield, an 

immigration official who accepted bribes in return for approving 

citizenship for aliens who were not qualified. Since Mr. Schofield 

pled guilty months ago and his case is no longer pending, I would 

like some answers. Would you commit to helping my staff get a 

briefing from your Department? 

Secretary CHERTOFF. Yes. 

Senator GRASSLEY. OK. Thank you. 

The next one is—I would like to have an answer in writing, but 

would you listen, please, and not answer now, because I have got 

some other questions. We met over a month ago—you were kind 

enough to do that—to discuss the worksite enforcement against 

Swift, including the need to improve the Basic Pilot Program. One 

of my concerns has been the hiring of illegal aliens in critical infrastructure sites. Every other weeks it seems we are hearing about 

illegal aliens working on military bases. A response to my question 

that day, the day we previously met, is that the Department of Defense is not even using the Basic Program. 

A few weeks ago, the Senate unanimously passed a measure to 

prohibit the companies from Government contracts if they are 

found to hire illegals. It would encourage companies to use the 

Basic Pilot Program then. But we would not need this measure if 

the Federal Government was requiring contractors to use the Basic 

Program. In other words, we do not need to pass a law. 

It cannot be done today. The Department of Defense, for example—or, in other words, it can be done today. We do not even have 

to pass a law to do it. The Department of Defense, for example, 

should have a policy in place that requires contractors to use this 

program, airports and power plants as well. I want to know if it 

is going to be done and to what extent. 

Then a question on employer verifications, and I would like a 

very short answer on this. It is likely that Congress will mandate 

the use of an electronic employment verification system for all busiVerDate 0ct 09 2002 10:20 Aug 09, 2007 Jkt 037096 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37096.TXT SJUD1 PsN: CMORC
20

nesses in the United States. Can you confirm for us today that 

your Department is ready and willing to implement a mandatory 

system for all employers? 

Secretary CHERTOFF. We have doubled our capacity, and I think, 

although we will need some lead time, we will be in a position in 

the near future to be able to offer that. 

Senator GRASSLEY. Your Department has been working to implement the national standards for driver’s licenses mandated under 

the REAL ID Act. I am told that about seven States are close to 

complying. One of those States is my State of Iowa. What would 

a delay in the REAL ID Act mean for the States that are ready to 

go? And what incentive would other States have to be compliant? 

Secretary CHERTOFF. I think a delay for States ready to go would 

actually create more uncertainty and difficulty for them. That is 

why what we are going to propose to do is to, under the law, provide extensions for States that need them but continue to move forward for the States that are poised and ready to implement the 

law. 

Senator GRASSLEY. Mr. Chairman, I see three lights on, so how 

much time do I have left? 

Chairman LEAHY. Well, you are 38 seconds over your time. Do 

you have another question you wanted to ask? I will certainly— 

Senator GRASSLEY. It would be one on visa revocation. Could I 

go ahead? 

Chairman LEAHY. Go ahead, and we will give an equal amount 

of time to Senator Feingold. 

Senator GRASSLEY. OK. I have been pushing to change the law 

when it comes to revoking visas of people in our country that have 

suspected terrorism or criminal conduct. Normally, a consular officer has the full authority to deny a visa on such grounds. However, 

if a visa was revoked today for someone on U.S. soil, the decision 

could be taken to court. 

Can you tell us why the Department wants to change to a law 

that would prohibit the judicial review of revoked visas? 

Secretary CHERTOFF. I think for precisely the reason that you 

just indicated, the fact that we can prevent someone who is coming 

in as a guest. Basically, we can say you cannot come in from overseas, but once they come in, if they abuse the terms and conditions 

of their coming in, we have to go through a cumbersome process. 

That strikes me as not particularly sensible. 

People who are admitted as guests, like guests in my house, if 

the guest misbehaves, I just tell them to leave. They do not get to 

go to court over it. 

Senator GRASSLEY. Thank you very much. 

Chairman LEAHY. Thank you very much. 

Senator Feingold? 

Senator FEINGOLD. Thanks very much, Mr. Chairman. I am 

pleased that the Committee is once again taking up the critical 

issue of comprehensive immigration reform. This issue is too significant to put off, too important to our national security, to our 

economy, and, most importantly, to the millions of people whose 

lives will be affected. We need to secure our borders, we need to 

fix our broken immigration laws, and we need to deal with the fact 

21

that there are millions of undocumented individuals in this country, and we need to do it now. 

We also need tough enforcement mechanisms, but we can be 

strict while still providing individuals with the type of basic due 

process and judicial review that is consistent with the rule of law 

and our constitutional system of Government. I do sincerely look 

forward to working with the Committee to report to the Senate 

floor a bill that takes a pragmatic and realistic approach to immigration reform, and I appreciate the support of Secretary Chertoff 

and Secretary Gutierrez for comprehensive immigration reform. 

Secretary Chertoff, good to see you again. I want to raise the 

issue of the material support bar in the immigration law and, in 

particular, how it relates to the Hmong population. As you are well 

aware, many of the Hmong who fought with or supported the 

United States in the Vietnam War will potentially face denials or 

lengthy delays of their applications to become refugees or to adjust 

their immigration status here in the U.S., and the reason for this 

is the very same reason they are eligible to be resettled into the 

United States, that they fought with or supported the United 

States in the Vietnam War. Their applications are put in jeopardy 

because of changes made to immigration laws by the passage of the 

REAL ID Act, which defined the term ‘‘terrorist activity’’ so broadly 

that it basically covers anyone who has ever used a firearm. 

Are you planning to apply a waiver to the Hmong population, either to those in the United States who are found ineligible for adjustment of status because of the material support bar provisions 

or to those outside of the United States who are filing for refugee 

status? 

Secretary CHERTOFF. I believe I signed a number of waivers in 

the last few weeks. I have to confess I do not particularly remember whether the Hmong were included, but I can get you the answer to that. 

Senator FEINGOLD. Thank you. Please do, because this is a problem that has been around for several years, and I am concerned 

that the Department thus far has applied a very limited number 

of waivers to the material support bar. Can you give me a sense 

of what your timeframe would be for determining waiver eligibility 

for the Hmong? 

Secretary CHERTOFF. I think I may have done it. The reason I 

am hesitant is I think may have done it already, but I cannot specifically recall. So if it is done, it is done. 

Senator FEINGOLD. My understanding from my staff is it does not 

include the Hmong at this point. 

Secretary CHERTOFF. All right. I will have to look and find out. 

It needs to be analyzed. It should not take a very long time. 

Senator FEINGOLD. Well, I was all over my State last week, and 

this came up a great deal. It is a matter of great concern. And let 

me just say also, to the degree this problem is statutory, if it is, 

then— 

Secretary CHERTOFF. No, I think we can deal with this. I think 

the statute gives us the flexibility, and as I say, I have signed a 

number of waivers recently, and I think we can deal with this 

under the existing law. 

22

Senator FEINGOLD. Well, I am pleased to hear that. If that is 

true, that is great. If there is some statutory problem, please let 

me know immediately. But I appreciate your commitment to work 

on this matter. 

Mr. Secretary, the last time you were before the Committee discussing immigration reform, we talked about the fact that opening 

more channels for workers to legally enter this country would allow 

us to focus our enforcement efforts on those persons who actually 

pose the greatest threat to our National security. You said then, ‘‘I 

believe the effectiveness of our border security and enforcement initiatives is tied to creating legal channels for workers our economy 

needs to continue growing.’’ And a 2005 Cato Institute study supports your statements. 

The study found that the probability of stopping an undocumented immigrant has fallen over the past two decades from 33 

percent to 5 percent, despite the fact that we have tripled the number of border agents and increased the enforcement budget tenfold. 

Do you continue to believe, as I do, that effective border security 

is dependent on creating more channels for legal immigration? 

Secretary CHERTOFF. I do agree with the sentiment I expressed 

last year. I do not want to agree with the Cato study, which I am 

not in a position to associate myself with and, I have to say, I think 

a 5-percent capture rate sounds like it is a really incorrect estimate. But, the general principle I agree with. 

Senator FEINGOLD. Let me just reinforce that by pointing out 

that President Bush in his State of the Union last month said that 

providing realistic legal immigration channels would mean that immigrants looking for jobs ‘‘won’t have to try to sneak in, and that 

will leave border agents free to chase down drug smugglers and 

criminals and terrorists.’’ 

I agree with the President on this. This is one reason why immigration reform is really so important. 

Secretary Chertoff, I would like to talk just a bit about border 

enforcement. We are in agreement that border security is an absolutely critical part of immigration reform. I think we also agree 

that the methods we employ should be as effective and as cost efficient as possible. I understand the Department is implementing 

some promising new technologies to help secure the border. 

I would like to have you tell us a little bit about the high-tech 

components of the Department’s SBInet program. 

Secretary CHERTOFF. We are currently in the process of rolling 

out the first 28-mile stretch of SBInet, and in the area of high technology, I was at the border a week ago and saw ground-based radar 

that we have currently deployed in Arizona that allows us to actually scan 20 kilometers from a single fixed point and immediately 

hone in with a camera on illegal migrants so that we can intercept 

them. 

In fact, if I am not mistaken, I have a recollection that in the 

last few weeks we have actually apprehended a murderer coming 

across the border using this kind of technology. 

There is no question that in many parts of the border the most 

cost-effective and most efficient way to detect and intercept illegal 

migrants is high-tech things like radar. 

23

Senator FEINGOLD. I am encouraged to hear that. Would you specifically say that in many border areas those types of technologies 

will be both more effective and less expensive than building hundreds of miles of fencing, which has an estimated cost of $3 million 

to $4 million per mile? 

Secretary CHERTOFF. I would agree with that. Fencing does have 

its place, however, in some areas. And, in some areas the high-tech 

is more effective. 

Senator FEINGOLD. Thank you, Mr. Secretary. 

Thanks very much, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

First of all, to Secretary Chertoff, I am just reading some clips 

from the Arizona newspapers of this morning. Arizona Republic 

headline: ‘‘Another chief of police slain along the border.’’ This is 

in the Sonoran town of Agua Prieta, which is right across the border from Douglas, one of the chief areas of smuggling. Police Chief 

Ramon Tacho Verdugo, 40 bullets hit him in an ambush, which officials say is almost certainly involved in control of the smuggling 

routes into Arizona. Rival organizations are vying for control of 

these lucrative corridors. His death followed a number of related 

killings in the area. In fact, at least 12 lawmen have died in the 

past year, including the chiefs in Tijuana and Nuevo Laredo. 

The newspaper goes on to say, ‘‘The killings have many police 

thinking twice about taking the top post. The Sonoran town of 

Naco, for example, has had 12 police chiefs in the past 3 years. The 

last one to resign was Tacho’s brother,’’ the fellow that was just 

killed. 

There are reasons to secure our border other than simply to stop 

illegal immigration. Is that not true? And, in fact, could you tell us 

what percentage of people apprehended coming across the border 

last year actually were criminals or people wanted or who had 

criminal records? 

Secretary CHERTOFF. I vigorously agree. In fact, the principal 

reason to secure the border is to keep drug dealers and criminals 

and dangerous people out of the country. One of the reasons we 

have talked about a legal channel for migration is so that we are 

not hunting down the housekeepers and the construction workers 

and we are focused on the drug dealers. 

I do not recall exactly what the figure is, but I think it is a significant percentage, around 20 percent or so. 

Senator KYL. Yes, it was somewhere between 10 and 15 percent 

on average. In some areas it was greater than that. 

Secretary CHERTOFF. Yes, that are criminals. 

Senator KYL. One of the things that you said in your testimony—

well, before I ask you that, you talked about the ending of catch 

and release. There is still some unfinished business with respect to 

catch and release, however, with regard to people who are here illegally and we are having difficulty returning to their home. You 

talked about this in your written testimony. Could you expand on 

that orally just a little bit? 

Secretary CHERTOFF. Yes. The key to all of our deportation, 

whether it is people we catch at the border and detain or people 

24

in the interior, is once they are removable, the home country has 

to take them back. We have worked with many of our allies in actually having a very efficient system. I can tell you, however, for 

example, the Chinese are still very slow to take their removable 

migrants back. As a consequence, if you look at the whole country, 

including the interior, we have got, I think, over 40,000 Chinese 

who have been declared removable. They are done with their court 

process, but we have difficulty getting the Chinese to take them 

back, and we are going to have to push on that. 

Senator KYL. And those people are not all in detention. In fact, 

probably the majority of them are not. Isn’t that correct? 

Secretary CHERTOFF. Correct. Because they are in the interior, 

the vast majority are bailed out, or by law we have to release them 

after a certain period of time. 

Senator KYL. And it is not even certain that we could find them 

all if we wanted to. 

Secretary CHERTOFF. Well, obviously once they are released, 

there is a risk of flight. 

Senator KYL. Right. Now, you also talked about the need for 

greater sharing of information. This is reminiscent of a post-9/11 

discussion of our intelligence and law enforcement. But to get a 

handle on who is here and entitled to be legally employed and 

whether or not someone might be seeking employment fraudulently, you have a variety of recommendations for statutory change, 

one of which had to do with sharing of data, having the Social Security Administration share data with DHS. 

What specifically would you like to see shared? What would be 

necessary for us to do in order to provide that authority? 

Secretary CHERTOFF. Right now, the law prohibits information 

which can be described as taxpayer information, like your Social 

Security data, to be shared except through a very cumbersome 

process. If Michael Chertoff with my number appears to be filing 

in six different places across the country, I mean, there might be 

a reasonable explanation, but likely not. 

If we could have Social Security identify that and let us have 

that, that would give us an opportunity to be able to look to see 

whether we have got an identity theft problem. And, by the way, 

it would also help the innocent victim, the real Michael Chertoff, 

get help. 

So, this is a tool which I think there is legislation that is now 

seeking to address it. 

Senator KYL. And this would not involve a violation of people’s 

privacy. In fact, to the contrary, it would actually assist people in 

protecting their privacy. 

Secretary CHERTOFF. Absolutely. This protects their privacy. 

Senator KYL. Wouldn’t the same thing apply for sharing of information, for example, from IRS with respect to the death of a person 

so that his Social Security number would not continue to be used? 

Secretary CHERTOFF. Correct. These would be actually privacy 

protective. 

Senator KYL. And is there any problem in—I mean, isn’t it true 

that we already have algorithms and so on that can run those programs against the data base so that it should not be difficult to do 

this, it is simply a matter of authorizing it? 

25

Secretary CHERTOFF. Yes, I mean, I am sure there will be some 

adjustments to the IT system, but all you are doing is comparing 

to see if in the same time period the same name and number have 

been filed in different places. It is a legal obstacle to sharing with 

us that I think is the real problem. 

Senator KYL. And, finally, isn’t it important that the Social Security data base be cleaned up and operated in an accurate fashion 

from now on if, A, we are going to have a valid Social Security system, B, we are going to eliminate document fraud and identity 

theft, and, C, if we are going to be able to have an employer-employee verification system under immigration reform? 

Secretary CHERTOFF. Yes. 

Senator KYL. Thank you. 

Mr. Chairman, that red light means I am out of time? 

Chairman LEAHY. It does. 

Senator KYL. Thank you, Mr. Chairman. 

Chairman LEAHY. Did you want to ask another question? 

Senator KYL. No, sir. 

Chairman LEAHY. OK. 

Senator Cardin? 

Senator CARDIN. Thank you very much, Mr. Chairman, and 

I thank you for holding these hearings on immigration reform. 

It seems to me that we need to evaluate any proposal based upon 

several factors, the most important, of course, being the security 

issues. And we have had discussions here about the security issues, 

but we also need to know the economic impact on our country. We 

need to be concerned about the humanitarian aspects and just 

basic fairness. And when you look at basic fairness, I think the 

point that Senator Feinstein raised about amnesty is one that we 

have to be cautious about. People have waited in line to become 

citizens of America, and we need to make sure that that is respected. 

On the humanitarian front, it is very important to me to give 

people the protection of law, so I think it is important that we have 

some way that we can identify the people that are in this country. 

On the economic front, I can tell you that the guest worker program is critical to the seafood industry in Maryland, so there are 

economic issues here that are important to our country. But let me, 

if I might, concentrate on the security issue because I think that 

is the issue that is perhaps the most perplexing and the one that 

is the most critically important. 

Last year, the Senate passed a comprehensive immigration reform bill. The House passed a bill that criminalized the activities 

of those who are undocumented in the United States and those who 

help people who are not properly documented. So if you look at it 

from a security point of view, based upon the current circumstances, the current law, versus the approach taken by the 

Senate last year, versus the approach taken by the House, I would 

welcome your thoughts that for the security of this country, what 

is the best approach to take? Because no action is action. If we do 

not do anything, we have the current law. So is the current law 

safer for America than the bill that passed the Senate from your 

perspective or the bill that passed the House of Representatives 

last year? I welcome your thoughts. 

26

Secretary CHERTOFF. I think the current situation is not a particularly good situation. I think what we need to do is to come up 

with an approach that addresses all elements of the problem, that 

does so in a way that adds additional teeth to the enforcement side, 

that is simple and workable, and that is something that can be 

done in real time. 

Senator CARDIN. Now, the House took a rather limited approach. 

They did deal with a security wall, but they also dealt with criminalization, making it a felony conviction for those who cooperate 

or help or counsel, in addition to the people who are undocumented. Would you comment on that approach? 

Secretary CHERTOFF. I do not think I am in a position to go back 

and revive my memory about the individual pluses and minuses of 

each of the bills. I think we’re starting with a clean slate here, I 

think the principles which the President outlined last year are 

pretty straightforward—you know, tough enforcement and a workable temporary worker program, including one that addresses and 

brings into a regulated system the undocumented workers who are 

here already. 

Senator CARDIN. Well, do you need additional tools in order to 

enforce our laws? 

Secretary CHERTOFF. Sure. Some of the things we have talked 

about are, for example, sanctions for those who run checkpoints or 

disobey DHS officers, tougher sanctions for employers, administrative sanctions so that the systematic violation of the law does not 

become a cost of doing business, and also, equally importantly, if 

not more importantly, not weighing down the process with a lot of 

different complicated adjudications and determinations that in real 

life would sabotage the program. 

Senator CARDIN. I think that is a fair analysis so that you are 

being targeted in what you need; whereas, the approach taken by 

the House last year would have made another maybe 10, 12, 14, 

15, 16 million targets, potential targets of criminal investigations. 

Certainly it seems to me to weigh down the ability to really go 

after the people that are the ones that we need to in order to make 

sure we have an enforceable system. 

Secretary CHERTOFF. Well, I do not know that I want to characterize any of the legislation that was there last year. I am looking 

forward. I do not see much profit in looking backward. And, looking 

forward, I think we have outlined what it is that we need. 

Senator CARDIN. I thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Sessions? At least that was my understanding was Senator Cornyn here first? 

Senator SESSIONS. I believe he was. 

Chairman LEAHY. If that is correct, then I— 

Senator SESSIONS. I believe maybe Senator Coburn was ahead of 

me. 

Chairman LEAHY. I am sorry. I was going by—well, which order, 

gentlemen? You were all here before the witnesses started their 

testimony. So if you want to yield to Senator Cornyn to go first, 

that is fine. 

Senator CORNYN. You go first. 

27

Chairman LEAHY. I am going to be here for the whole hearing. 

Senator SESSIONS. Well, I will just take my time, and we have 

probably wasted time already. 

Chairman LEAHY. OK. 

Senator SESSIONS. Thank you. I do not know exactly how you calculate your rule there, but I know it is objective and fair. 

Secretary Gutierrez, it is great to have you with us, and congratulations on helping us with our revenue deficit. The economy 

has grown. We had revenues up 15 percent in 2005, 12 percent in 

2006, and I hear you are hoping to have a 10-percent increase in 

revenues to the U.S. Treasury without increasing taxes, and that 

is good news. Thank you for that. 

And, Secretary Chertoff, I admire you and your leadership. You 

have got a very, very difficult job. I think I told you when you took 

it, I am not sure anybody could succeed in it, but you are doing 

about as well as could be expected under the circumstances. 

I would just say with regard to my chairman’s comments about 

the border barriers, that bill passed, one vote 83–16 and I think 

the other vote was about 94–3 to do that. And it complied with 

your request to build barriers in a way that would be helpful, as 

they have proven to be helpful in San Diego. And, frankly, without 

some barriers, I do not think we are serious about what we mean 

to do here. 

I share Senator Specter’s concerns about work going on behind 

closed doors. Last year, we had this matter basically sprung on us. 

They tired to pass it without any amendments. Senator Frist 

pulled the bill down, and we eventually did have amendments and 

a discussion. But it would be better if we had a much more open 

process. 

Let me raise some fundamental questions. This is what I think 

is concerning the American people. If there are two applicants who 

want to emigrate to the United States and both are from Guatemala, one is the valedictorian of his or her high school class, speaks 

fluent English, and has had a year or two of college or technical 

training, but no relatives in the United States, another did not finish high school, does not speak English, has had no additional 

training or skills, and they apply to come to this country, who has 

the clear advantage, Secretary Chertoff, under the current law? 

Secretary CHERTOFF. Right now, the advantage goes to the person with the rather distant family relationship. Under the current 

visa allocation, I think, last year approximately 120,000 family 

members got green cards. I do not mean spouses or minor children. 

I mean married siblings coming in, and that is apparently a legacy 

of a fairly longstanding system. 

Senator SESSIONS. In fact, the way our system works, 58 percent 

of the people we admit come in based on a family connection; 

whereas, Canada in its system that Senator Feinstein referred to, 

which allocates points based on skills that they bring, 60 percent 

come in on merit, or at least based on the skills that Canada felt 

are necessary. 

Secretary Gutierrez, couldn’t we do a better job of recognizing everybody cannot come to the country, and having a skill set factor 

here that would be more beneficial to our economy? 

28

Secretary GUTIERREZ. Especially for the high-skilled portion of 

this, skills is what makes the difference. And we have traditionally 

sourced a lot of our scientists from overseas, and I believe we need 

to do that in the future. 

In terms of low-skilled, it really comes down to the job and what 

is needed for that specific job, and if it is an agricultural job, obviously the person with the skills would be overqualified, and they 

probably would not be interested in that. 

So part of this is being able to get the skills we need on the high 

end and then also being able to fill the jobs that we need to fill on 

the low end. 

Senator SESSIONS. With regard to that, I think there should be 

a distinction between those who want to work here in a low-skilled 

capacity who may not want to be citizens and those who actually 

apply to be full legal permanent residents or citizens, and I think 

that is what we need to be discussing. One of my fundamental 

criticisms of the bill we passed last year, there was no discussion 

of this in any serious way. 

Professor George Borjas, a professor of economics and social policy at the Kennedy School of Government at Harvard, recommends 

that we as policymakers answer this question before writing any 

laws: ‘‘What policy goals does the U.S. want to advance through its 

immigration rules?’’ Fair enough. You nod. I guess you would agree 

with that. 

The question is: What interests should be served, the interests 

of poor people or those around the world who— maybe billions 

would benefit from living here if they could come. Or shouldn’t it 

be the interests of the United States, the long-term, legitimate, just 

interests of our country? 

Professor Borjas testified before the HELP Committee last year, 

the Labor Committee; he explained that the economic interests of 

the United States are not being best served by current laws. And, 

of course, Secretary Gutierrez, he also came from Cuba as a young 

man, so he is an immigrant himself. He said this: ‘‘Many more people want to come to the United States than the country is willing 

to admit. So because of this the immigration policy needs to specify 

a set of rules to pick and choose from the many, many applicants. 

Those rules could stress family ties, as is done now. It could stress 

national origin, the way it used to do. Or it could stress economic 

values, the way Canada does. Or it could even be completely random, the way the lottery system does for 50,000 visas. The crucial 

question that is really at the core of the immigration debate is: 

Which set of rules should the United States have if it wants to improve its economic well-being of its population?’’ 

Do you think that is a fair analysis of some of the thoughts we 

should give to this matter? 

Secretary GUTIERREZ. Sure. In fact, Senator, I would say that the 

three goals that we are using to set our comprehensive plan is, one, 

national security; two is economic growth; and three is national 

unity, improving national unity and making a contribution to society. And those three goals should be met. 

Senator SESSIONS. My time is up. Thank you. 

Chairman LEAHY. Senator Graham? 

29

Senator GRAHAM. Thank you, Mr. Chairman. I want to compliment you, too, for having this hearing. I think this is something 

we actually could accomplish as a Congress with the administration if we had the will to do it. So that is good news for the American people. 

The goal is to be safe and free, and I do not think you can be 

safe and free without being responsible. So we have a problem on 

our hands, gentlemen, of 11-plus million people who have come 

here illegally, what to do, how to do it, what value system we 

should embrace. I think we should embrace our self-interest, and 

we should embrace American values. And what are American values? Hard work, obeying the law, getting right with the law when 

you are out of touch with the law, and making sure at the end of 

the day you have justice. 

The rule of law, if it means anything, brings about a just result. 

So we are going to have some hard decisions to make because there 

are some families here that have been here decades that have done 

nothing but work hard. And I hope we can find a just result living 

within the rule of law, but if it is not justice, it does not push any 

value. 

What is the biggest mistake we made in 1986 in our last attempt 

to solve this problem, Secretary Chertoff? 

Secretary CHERTOFF. I think the biggest mistake was we were 

not tough about the enforcement side of the law. Additionally I 

think that not only did it fail to meet the expectations of Congress, 

but I think it created a real sense of skepticism, if not cynicism, 

among the American people. 

Senator GRAHAM. Do you agree with that, Secretary Gutierrez? 

Secretary GUTIERREZ. Yes. I would just add the concept of workability and ability to execute whatever we passed in 1986. 

Senator GRAHAM. What percentage of the illegal immigrant population did not come across the border? 

Secretary GUTIERREZ. My understanding today is that approximately 40 percent—and these are approximate numbers- -are visa 

overstays. 

Senator GRAHAM. That never came across the border? 

Secretary GUTIERREZ. So they would come in through other 

means, perhaps an airport or— 

Senator GRAHAM. So we have got to build a fence, I understand 

that, and we have got to have a virtual fence and secure the border, and that makes perfect sense to me. That is why I voted for 

it. But if we did that and we said job done, mission complete, we 

would be wrong. Is that true? 

Secretary CHERTOFF. That is correct. We need to address all the 

elements of the problem. 

Senator GRAHAM. As a matter of fact, if you do not get to the root 

cause of—what is the root cause of illegal immigration, Secretary 

Gutierrez? 

Secretary GUTIERREZ. I would say, Senator, it is that our economy is growing. We need labor to keep it growing, and that demand needs to be supplied. 

Senator GRAHAM. Being a proud Republican, 4.6 percent unemployment is historically low. Is that correct? 

Secretary GUTIERREZ. That is correct. 

30

Senator GRAHAM. So to make the argument that illegal immigration is costing American jobs just does not quite make sense, does 

it? 

Secretary GUTIERREZ. Unemployment is below the average of the 

past four decades. 

Senator GRAHAM. As a matter of fact, there are so many segments of our economy starving for labor, if we do not deal with 

that, our economy is going to go backward, not forward. Is that 

true? 

Secretary GUTIERREZ. That is correct. 

Senator GRAHAM. When it comes to the security side, Secretary 

Chertoff, at the end of the day, if we cannot identify this work 

force, this illegal immigrant population, we will never be safe. Is 

that correct? 

Secretary CHERTOFF. Correct. 

Senator GRAHAM. And the only way we are ever going to deal 

with this problem is to control employment. People come to get 

jobs. You can make more in 1 day here than you can maybe in a 

whole week or month other places. We need workers. They need a 

job—on our terms, not theirs. So when it comes to the future flow, 

temporary worker program, isn’t part of the solution that you have 

to advertise, before you can hire an immigrant that no native 

American, native-born American will take the job? Is that part of 

the solution? 

Secretary CHERTOFF. I think that has been the past practice, and 

I think in the discussions in the past, all the proposals had some 

similar requirement. 

Senator GRAHAM. OK. Do you recommend that we have that in 

this package? 

Secretary CHERTOFF. I think you need to have some assurance to 

the public—I do not want to commit to a specific approach about 

advertising—that assures people that you are not taking a job from 

a willing American worker. 

Senator GRAHAM. Do you believe it is possible in the next couple 

of years, if Congress gave you the right tools, the right amount of 

money, the right authorization, to create a system so every employer in America would have a chance to regularize their work 

force? 

Secretary CHERTOFF. Yes. 

Senator GRAHAM. And do you believe it would be fair to give 

them that chance because the current state of law is almost impossible to comply with? 

Secretary CHERTOFF. I would not agree that the current state of 

law is impossible to comply with. I would say it is difficult. It is 

more difficult than it needs to be to comply with. 

Senator GRAHAM. Could I get a Social Security card illegally by 

midnight tonight? 

Secretary CHERTOFF. I do not know if you could, but I think 

probably— 

[Laughter.] 

Secretary CHERTOFF. I think probably an illegal immigrant can. 

Senator GRAHAM. Don’t sell me short. Could you? 

Secretary CHERTOFF. I do not think I could either, probably. Not 

with my Secret Service detail. 

31

Senator GRAHAM. Do you know anybody that could? 

Secretary CHERTOFF. I think if your point is that it is easy to get 

false identification, the answer to that is yes, and that is a security 

vulnerability as well as an immigration vulnerability. 

Senator GRAHAM. It is not easy. It is ridiculously easy. Now, 

what America needs to come to grips with is that we do not really 

have any way to track who is here and why, and we need workers. 

And we are not going to put 11 million people in jail, nor should 

we. We can make people right with the law without destroying 

families, which we should. And we can have a work force that 

brings out the best in this country. 

You know, I want to make sure Bill Gates’ needs are met, but 

the most impressive person I have ever met in my life never went 

to college, worked hard all their life, and that was my father. So 

I do not put value on people by the title they have, but what is in 

their heart. And there are millions of people here who could make 

great Americans if they got right with the law. So let’s get this 

right and get it behind us. 

Thank you for coming. 

Chairman LEAHY. Thank you. I guarantee you if I did not worry 

about the legality of it, I could find your Social Security, find mine, 

and numerous others, and probably get— I might not be able to do 

it by midnight, but certainly by the end of the week get a fake Social Security number. I am not suggesting people do, but I have 

watched how it is done, as I am sure you have, and it is pretty 

scary. 

Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. 

I do not know, Mr. Secretary, whether you saw this morning on 

the front page of the New York Times, ‘‘Low pay and broken promises greet guest workers in the United States.’’ It is a rather extensive story, and in the story, with which I think all of us are very 

familiar, it points out, I would say, a substantial majority of U.S. 

guest workers experience abuses with their paycheck, and it goes 

through the examples. 

We have provisions, or at least we had the last time in the comprehensive program, protections for monitoring these kinds of labor 

recruiters so that this kind of abuse we would be able to address. 

But in the existing law, we know that in H–1B, the highly skilled, 

they can be petitioned for and they can become citizens. 

We are going to be, if we get this legislation, in a temporary program, have temporary workers in here. Why shouldn’t it be possible for employers to have the same kind of provisions so that 

those individuals that come in here following a procedure which we 

outlined, will they also be able to be petitioned for so that they can 

get on the road to citizenship as well? 

Secretary CHERTOFF. I assume you are talking about unskilled 

workers as opposed to— 

Senator KENNEDY. Yes. 

Secretary CHERTOFF. Well, I think, you know, inevitably, as Congress considers this issue and considers what the end game, so to 

speak, is with respect to temporary workers, some of the sentiment 

I have heard here today suggests looking at the current categories 

and asking whether those categories ought to be reconfigured. You 

32

could certainly consider whether you want to create a category for 

unskilled workers where you have an employer who has a case to 

be made that that person ought to come in. 

Senator KENNEDY. Well, we are talking about the temporary 

worker program. That was in the legislation last year where they 

could be petitioned for, and they could get on the pathway for citizenship as well. And just to get the administration’s position on 

that, if you want to get it to us— 

Secretary CHERTOFF. Again, I am reluctant to take positions on 

past pieces of legislation. I think that as we work with Congress— 

Senator KENNEDY. Well, what is your position now with regard 

to the temporary worker? 

Secretary CHERTOFF. I think we need to have a temporary worker program that addresses labor needs, that addresses the fact that 

we have 11 to 12 million undocumented workers and we have to 

bring them into a regulated system that is fair but that does not 

advantage those workers over those who have followed the law. 

Those seem to me to be basic principles the President has outlined. 

Senator KENNEDY. Thank you. 

Chairman LEAHY. Thank you. 

Senator Cornyn? We have had some concern on the early bird 

rule, which I do want to follow here. Senator Specter is going to 

take on the chore of keeping track of his side, and I will rely on 

his count of who gets here first, and I will keep track on this side, 

and we will try to alternate sides. I apologize for the confusion to 

both Senator Cornyn and Senator Coburn earlier. 

Senator SPECTER. Well, thank you, Mr. Chairman. We will keep 

track on this side, and we do want to observe the early bird rule 

because that is the motivation for people to come early. And I think 

we agree that everybody is entitled to a first round before anybody 

gets a second round. 

Chairman LEAHY. Yes, I made a mistake on that. I apologize. So 

people understand, we will follow the early bird rule. We will alternate sides until everybody has had their first round, and I will 

leave it to the Republicans— basically what we did when you were 

Chairman. I kept track of the Democratic side, and I will expect 

you to keep track of the Republican side. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

Secretary Gutierrez and Secretary Chertoff, let me express my 

gratitude for the hard work that both of you have put into this 

issue. I have been working on this issue since I came to the Senate 

in 2002, and, frankly, I think we have gone through some tough 

times, but we are getting to a good place. And I think a lot of the 

thought that has gone into coming up with a workable bill has 

been very constructive. And I think if we are successful, then that 

hard work will have been rewarded. And you both are entitled to 

a lot of credit. 

Secretary Chertoff, when someone asked you earlier about the 

reason the 1986 amnesty was a failure, I agree with your assessment that there was no real commitment to enforcement of the 

law. And so, what the American people saw was an amnesty with 

the tradeoff being worksite sanctions against employers who cheat 

and enforcement, and they felt like they had been scammed. And 

33

I think a lot of this profound skepticism that I hear from my constituents, and I think that we hear across America, has to do with 

the loss of trust that the Federal Government has sustained because the American people remember what happened in 1986. 

So I think a lot of what we are doing here is trying to regain 

credibility. I think that is an important function and I want to congratulate both of you for such an emphasis on workability. If we 

do not come up with something that will work, then I think we will 

find ourselves in the embarrassing position that our predecessors 

did in 1986 of scamming the American people. And we should not 

do that, and I know you do not want to do that either. So thank 

you for that emphasis on workability. 

In that connection, we talked a little bit about the Basic Pilot 

Program. As you know, there has been a lot of concern surrounding 

this program and we have had this conversation about the Swift 

meatpacking plant raids by ICE. Now, I congratulate you and your 

office, Secretary Chertoff, for your attempts to vigorously enforce 

the law. But my concern really has to do with the Federal Government’s failure to provide good corporate citizens the means to determine whether, in fact, people can legally work on their premises. 

And as you know, Swift complied with the Basic Pilot Program, a 

voluntary program, but it could not tell—and you alluded to this 

earlier—whether or not the worker actually had been guilty of 

identity theft by claiming to be somebody else and had a Social Security number that was not theirs. 

As a result, this company has sustained, it estimates, about $30 

million of business disruption, even though they are protected by 

virtue of their use of Basic Pilot from further sanctions. 

But is it your testimony, Secretary Chertoff, that if we were able 

to implement an effective system of worksite verification, the kind 

of biometric tamper-proof identification card that Secretary Gutierrez was displaying earlier, that such measures would be a good solution to that problem? 

Secretary CHERTOFF. It would be a very good solution. 

Senator CORNYN. We also know—and you have alluded to this as 

well—that since 9/11 we have learned that one of the ways that we 

have made America safer is to remove the stovepipes that have 

prevented information sharing between law enforcement and the 

intelligence community. But as you suggest in your testimony, 

there are numerous stovepipes in place, legal barriers passed by 

Congress and signed into law, that prevent you from getting information that would be useful for you to enforce our immigration 

laws. 

I believe Senator Allard has an amendment pending on the 9/11 

bill that we are taking up this week that would eliminate those 

barriers and provide you the kind of information necessary to enforce our immigration laws. 

Do you support such measures? 

Secretary CHERTOFF. We do support removing stovepipes and, in 

particular, if it is what I am thinking you are referring to, which 

is on the Social Security issue, I think we even asked last year to 

have help to remove that bar, which means we would finally be 

able to get a heads up if there is identity theft going on. 

34

Senator CORNYN. And, finally, let me just express my gratitude 

to you again for your willingness to meet with Texas border mayors 

and business leaders, both here in Washington and in Laredo just 

last week. I felt like those discussions were very productive. It certainly, I think, gave my constituents the sense that the Federal 

Government and particularly people in the President’s Cabinet care 

a lot about their situation there on the ground. I also think the 

meeting provided useful information to you and others at the Department of Homeland Security about how best to accomplish our 

goals. Perhaps not with a one-size-fits-all mentality that Congress 

and Washington sometimes have a tendency to dictate, but with an 

approach that is responsive to their needs and best designed to 

achieve results. 

So thank you for that. 

Secretary CHERTOFF. Thanks to you and Senator Hutchison for 

arranging those meetings. 

Senator CORNYN. Thank you, Mr. Chairman. 

Chairman LEAHY. Are you going to invite me down for some of 

those, John? 

Senator CORNYN. I beg your pardon, Mr. Chairman? 

Chairman LEAHY. Are you going to invite me down to visit some 

of the— 

Senator CORNYN. We would love to have you in Laredo, Texas, 

anytime you want to come. They have great food. 

Chairman LEAHY. I used to go to one Texas city fairly often when 

my youngest son and his wife were living there, but they are back 

in Vermont. 

Senator CORNYN. In El Paso, yes. 

Chairman LEAHY. You have a good memory. They are back in 

Vermont now. It is easier to visit. 

Senator Coburn? And then it will be Senator Whitehouse and 

then Senator Durbin. 

Senator COBURN. Thank you, Mr. Chairman. 

First of all, my thanks to both of you for your service to our country. Tough times that we face and tough issues in front of you. 

Secretary Chertoff, you talked about increased internal enforcement, increased border security over the last 9 months, decreased 

number of people, decreased percentage of non-Mexicans. What 

have you seen in terms of increased egress out of the country? 

Secretary CHERTOFF. You know, we are not in a position to monitor egress through the land border and certainly not if people return between the borders. So, I cannot at this point tell you that 

there are a large number of people who are leaving as a consequence of interior enforcement. 

There was some anecdotal stuff in the paper suggesting that 

there were people who were now beginning to leave because they 

were getting worried about these enforcement rates. 

Senator COBURN. I noticed, Secretary Gutierrez, that we are very 

proud of the unemployment rate, and that is great, but that is a 

measure of the people that are seeking jobs. There are still people 

unemployed out there who are not seeking, so it is a measure of 

those actively seeking jobs, not those that are not seeking. And I 

note that if you—you talked about 4.4 million jobs that are out 

there and available right now, and we have got 9 or 10 million peoVerDate 0ct 09 2002 10:20 Aug 09, 2007 Jkt 037096 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37096.TXT SJUD1 PsN: CMORC
35

ple that are looking for a job. That is about a 21⁄2:1 ratio of people 

who do not have a job to jobs that are available. And other than 

the geographical disbursements or the ag differential in terms of 

regionalization, why do we need to have a large number of a worker program when we have 21⁄2 times as many people unemployed 

in this country as we have jobs? Why do we need to suppress that? 

And then the followup portion to that question is: If that is really 

the case and what we have seen is the big problem in this last recovery, economic recovery, is that the low- and lower-middle-income 

salaries have not risen, and one of the reasons that they—what are 

the reasons why they have not risen in terms of real wages? Part 

of it health care, I understand that, but compared to other times. 

And why does it make sense to have an influx of an additional 

work force when we have 10 million Americans that are not employed today and real wages for those people at those entry level 

jobs are not rising? 

Secretary GUTIERREZ. I think there are three questions there, 

Senator. The labor rate participation, the percent of the population 

that is in the labor market, has remained pretty stable. On wages, 

this last year we saw actually a real increase of about 2.1 percent 

in real wages. The broadest measure of compensation that we have 

is disposable income, average disposable income, which would take 

into account wages, benefits, take-home pay, reduction in taxes. 

That number is up about 9.5 percent in real terms since the President took office. 

The other thing I would say about the labor and the unemployment is that the type of jobs that we are talking about here, I believe that in general terms a lot of our population has moved on. 

A lot of our young students, a lot of our children are not necessarily 

looking to fill jobs that perhaps they would have filled 30 or 40 

years ago. And I think that suggests that as a population, as a society, we are moving forward. People’s expectations of a job, their 

skill levels, are a lot higher than they were before. And many of 

the jobs today that do not require skills are not the types of jobs 

that our people are looking for. And that is why we have these vacancies in the lower-skill levels. 

Senator COBURN. Just to clarify that, 9.5 percent, 7.2 percent of 

that is health care costs. So it is really 2.3 percent in terms of real 

wages or disposable income. And if you fractionize that out to the 

lower-middle income or to the low income, it is not even that great. 

Again, I question the wisdom. If we really believe in markets, 

why would we undermine the market forces that would raise the 

wages of the lowest income earners in this country by diluting the 

work force with people coming in under a jobs program? I do not 

understand that. Why would we not want to make it more competitive and let markets raise the cost? I actually believe we need to 

have more legal immigration because I think that diversity is one 

of the great strengths of our country. I am not against it. But I do 

not understand the policy of why we would not want the market 

forces to actually raise the wage rates of the lowest dollar employed 

people in this country. 

Secretary GUTIERREZ. The point you are making that I think is 

a good one is how much and what is the level of immigration that 

36

we need, and to your point, we believe that the market should determine that. 

The great thing about comprehensive reform is that it will regulate the supply. Today the supply is whatever can get in. If we determine what supply we want, who gets a card, who gets a temporary worker’s permit, how many people are in the country, that 

will force us to limit the number of immigrants who come in. And 

then over time we can let the market decide whether that is too 

little or too much. 

Senator COBURN. All right. Thank you. I am out of time. I will 

wait for the second round. 

Chairman LEAHY. Thank you. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Chairman. Gentlemen, welcome. I appreciate your service. 

First a political question, and then an enforcement question. 

Looking back at the last session, we saw two things. We saw an 

extreme divergence of views among the President and his party in 

Congress. And we also saw immigration reform founder here at a 

time when Congress was controlled by the President’s party. And 

in light of those facts, as we go forward to try to put together immigration reform in this Congress, I am interested to hear what sort 

of signals you all are hearing about the extent to which this administration is willing to do the political legwork of herding the cats, 

if you will, on its side of the aisle so that there can, in fact, be a 

proposal that people agree on. 

I think the divergence of views among the Democrats is relatively narrow and consistent with the way people tend to ordinarily disagree with each other on major pieces of legislation 

around here. It seems to me that within the President’s party, the 

divergence of views is so extreme that it is going to really take a 

considerable effort to get anything that is acceptable. And if there 

is not a really serious and sincere effort to get there, then this is 

all a lot of talk. 

Secretary GUTIERREZ. Senator, I know that the President has 

been committed to this from his first day in office, and it goes back 

to when he was Governor of Texas. So the one constant here is the 

commitment from the President to get something done. 

I think what we learned last year is that this is such a complicated issue, it is so complex that it is going to require compromise on all sides of the aisle to get a good, solid bill. And I think 

we are going to see that, that it is not just one side of the aisle 

that needs to compromise. I think we all need to compromise in 

order to get a bill that serves our National interest. And that is 

what we are here for, and we are committed to doing that. 

Secretary CHERTOFF. I would add one thing. I think it was important over the last year to put a lot of effort and resources into 

tough enforcement. Frankly, there was a lot of public skepticism 

built up over 20 or 30 years of what many people in the public view 

as lip service. And, I think we’re changing the momentum—and, 

again, I want to emphasize we are not done—we are moving in the 

right direction. I think it is beginning to earn some credibility with 

the public, and keeping that up is going to be an important element of being successful. 

37

Senator WHITEHOUSE. Well, that is a perfect segue to my second 

question, which had to do with enforcement actions against corporate violators. I do not have the numbers in front of me, but I 

seem to recall last year the statistics were that it went from an average of about 400 successful actions a year down to about 4. I 

think it was a 99-percent reduction. 

Secretary CHERTOFF. That is actually the exact opposite. It went 

up to 716 criminal cases. The prior year I think it had been like 

120 or 130. And, if you go back to 2002, it was one-seventh. 

What did happen is we moved from slap-on-the-wrist actions, 

where you pay a fine that is a cost of doing business, to criminal 

actions, which resulted in things like the guilty pleas we got yesterday, which have real teeth. And, we are going to continue to do 

that, as we demonstrated last year. 

Senator WHITEHOUSE. Well, I am pretty confident with my figures, and I will double-check to specify exactly what the area of enforcement was. It was against corporations. I am not sure if it was 

fines or convictions. But there was a documented 99-percent reduction from about 400 per year to about 4, if I remember correctly— 

Secretary CHERTOFF. I think what you— 

Senator WHITEHOUSE.—between administrations, and I would 

like to see that turned back around. 

Secretary CHERTOFF. I think what you are seeing is we moved 

away from civil administrative slap-on-the-wrist parking tickets to 

criminal felonies. You are right, we are not going to waste time 

doing a big investigation to fine a company $250. It is a waste of 

time and effort on the part of the agents. Just like when I was a 

prosecutor, we do not do little penny-ante offenses. We go after big 

violators. When we get them, we have real teeth. And, I think that 

if you look at the reaction you have seen in the press as well as 

what I have heard privately, the grumbling, frankly, from the corporate community, I think that is a pretty good metric of the fact 

that we are rougher and tougher than anybody has ever been. 

Senator WHITEHOUSE. Mr. Chairman, I would followup on that in 

writing, and I look forward to that opportunity, Secretary Chertoff. 

Thank you. 

Chairman LEAHY. Thank you very much, Senator Whitehouse. 

Senator Specter? 

Senator SPECTER. Well, thank you very much, Mr. Chairman, 

and thank you, Secretary Gutierrez and Secretary Chertoff. Your 

testimony is very helpful. 

We will push ahead in the Committee to produce a bill as 

promptly as we can. I believe the Committee will be committed to 

a comprehensive bill. We need to articulate the strong case we 

have that it is not amnesty. We need to tell the American people 

that the protection of the borders is serious and that employer 

verification will be done and that the Government will provide the 

technical assistance so that employers can know who is legal and 

who is not so that they can be held accountable with tough employer sanctions and that we will look for a guest worker program 

which will be responsive to the needs of specific industries. If there 

are American workers available, we will not bring guest workers 

in. We will have guest workers only where American workers are 

not available to do the job. And with respect to the 11 million unVerDate 0ct 09 2002 10:20 Aug 09, 2007 Jkt 037096 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37096.TXT SJUD1 PsN: CMORC
38

documented aliens, we will structure a bill which will seek to identify those who have criminal records and do not deserve to stay 

here from those who do have roots and who are making a contribution. 

But I am convinced that we can maintain the rule of law, protect 

our borders, at the same time accommodate in a guest worker program the needs of American industry and have a realistic program 

to put on a citizenship track those who deserve it at the end of the 

line. But, again, I say if anybody has a better idea, we are ready 

to listen. 

But we do appreciate the outstanding work you both have done, 

and we will work with you and we will work with the House to try 

to structure a bill which will come out of conference. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Graham, did you have anything further? 

Senator GRAHAM. Just very briefly, if I may. 

Chairman LEAHY. Certainly. 

Senator GRAHAM. It is important to start with a clean sheet of 

paper, but I think the point we are trying to make is that we need 

to understand our past work product and how close to the sweet 

spot we are. 

Would either one of you consider last year’s provisions or the bill 

that passed the Senate, the provisions regarding punishment to be 

amnesty—the fines, learn English, go through a criminal background check? What the Senate did last year, would you consider 

that to be a grant of amnesty? 

Secretary GUTIERREZ. I do not have the specific provisions in my 

mind, but if it is a punishment, then I do not think it can be amnesty. So, you know— 

Senator GRAHAM. Well, with all due respect, I am not asking for 

recall, but there was a lot of attention paid to this, and I would 

think both of you during last year’s debate would have come to the 

conclusion as individuals whether or not the Senate is repeating 

the mistakes of 1986. 

Secretary Chertoff, did you think we were doing that? 

Secretary CHERTOFF. You know, I agree with Secretary Gutierrez 

that when there are penalties, if the penalties are enforced, it is 

not an amnesty. But, I also have to say it is not just a question 

of convincing us. It is a question of what do the American people 

think, and I think that what has to— 

Senator GRAHAM. Well, the American people need to hear from 

their leaders, and the American people are dying to be led in a lot 

of areas, and the American people are very open-minded to solutions. Two out of three are open-minded to assimilating people 

without throwing over the rule of law. 

What is the violation for illegal border crossing? Is it a felony or 

misdemeanor under our current law? 

Secretary CHERTOFF. I think it is currently a misdemeanor. Although, I think if you have been—I am subject to being corrected, 

I am working from memory—removed and then you come back 

again, I think it can be done as a felony. 

Senator GRAHAM. But the initial violation is a misdemeanor. 

Secretary CHERTOFF. I believe, if that, yes. 

39

Senator GRAHAM. As a judge, do you believe in proportionality of 

punishment— 

Secretary CHERTOFF. Sure. 

Senator GRAHAM.—that the sentence needs to fit the crime? 

Secretary CHERTOFF. Sure. 

Senator GRAHAM. OK. Well, anyway, at the end of the day, this 

amnesty question, as Senator Specter and Chairman Leahy have 

indicated, will dominate this debate, and we need to come to grips 

with what the term ‘‘amnesty’’ means in terms of the law. And you 

have been a judge, and I have looked at the punishments available 

under the law for someone who is caught crossing the border illegally. I think they are more severe than if you were caught doing 

drugs the first time in terms of paying fines and having to wait 11 

years before you could ever get back into the back of the line. 

I would encourage both of you that when we come up with whatever comprehensive view of the problem that we agree upon, that 

you stress to the American people you are not getting away with 

this. You can only stay on our terms. And if you committed a violation of the law, you are not even eligible to be considered. And you 

have to make yourself right with the law. 

And the last comment would be that we have got to convince the 

American people that until you know who is here and why, we will 

fail again. And the ID card controlling employment is to me the 

wall that works. And please stress as we go forward the importance to the American people that we give employers notice of what 

they should do and we hold them accountable when they fail, and 

this ID card is the key to solving this problem. 

I look forward to working with you. We can do this. 

Chairman LEAHY. Senator Sessions, do you have another question? 

Senator SESSIONS. I will be brief, Mr. Chairman. 

Chairman LEAHY. I would certainly appreciate that. 

Senator SESSIONS. You know, our hearts go out to the whole 

world. Professor Borjas pointed out that with regard to the 50,000 

lottery slots that we have in this country where you submit your 

name and your name is drawn, that of that 50,000, 5 million applied. You know, nine-tenths of the world economically would benefit if they came to the United States. We have to know that, and 

we have to ask ourselves if everybody cannot come, are we going 

to think like Canada or other European countries that are revising 

their laws and choose people, allow those to become on a path to 

citizenship that are most likely to be successful here and also benefit the United States. 

I would ask either one of you if you know these statistics. In 

1997, the National Academy of Sciences told us in their study, ‘‘The 

New Americans,’’ that the key to success in the United States and 

the ability to contribute to the United States is an education level. 

And this is the National Academy of Sciences, not something I 

came up with. Those who did not have a high school diploma would 

cost the Treasury of the United States $89,000. In other words, 

they would draw out more in welfare and benefits than they would 

pay in over their lifetime. Those with high school diplomas would 

draw out $31,000. But those with any college, just some advanced 

40

education, would pay $105,000 more in a lifetime in taxes than 

they are going to take out. 

Now, is this something that—is this an immoral thing for us to 

think about? Let’s just put it that way. Is that immoral for the 

United States to think like Canada and Australia and other nations are, that they need to think about how this person is likely 

to fare in the country and focus more on the skills and educational 

levels that they bring? 

Secretary CHERTOFF. Well, I think, you know, this is a complicated issue, but I think one principle is very clear. Whatever we 

do should be that which benefits the United States. That is what 

we are here to do, to benefit the United States first. And while we 

might debate about what the best way to maximize that benefit is, 

I do not think there is anything immoral—I think, in fact, we have 

an obligation to put American interests at the top of the list by a 

country mile. 

Secretary GUTIERREZ. This has to be the national interest, first 

and foremost. The one issue that we have to wrestle with is the 

fact that the jobs that are available happen to be low-skilled jobs 

because American citizens are improving their education, and they 

are not filling those jobs, and we do not want those jobs to go overseas. And that becomes the reality that we have to confront. 

Senator SESSIONS. Well, I would just suggest again— and I think 

we could maybe reach some bipartisan ground on this. If we have 

a real temporary worker program for people more focused on lowskilled workers or seasonal workers and things of that kind—and 

those people could also apply in another track for citizenship based 

on a competitive—maybe they learn English while they are in the 

United States, maybe they would take college courses at night, and 

they become very competitive in the application process, and then 

have an application process for citizenship based on a more meritorious basis than we have today. Is that something that is conceivable in your mind, Secretary Gutierrez? 

Secretary GUTIERREZ. Well, I think the important thing is when 

we have a temporary workers program that we be able to explain 

to you why we call it ‘‘temporary.’’ And it is always in the country’s 

interest to have anyone who is working here improve their skills 

and grow and contribute to society. So, yes, we want everyone to 

grow and to improve their skills. 

Senator SESSIONS. Secretary Chertoff? 

Secretary CHERTOFF. I agree. I think that we ought to look at 

ways to maximize the benefit to the country in terms of how we 

ultimately admit people to permanent status. 

Senator SESSIONS. Well, Robert Rector of the Heritage Foundation said it is a myth that if by legalizing the 11 million people 

here now about 50 percent do not have a high school diploma, that 

it is going to help our Medicare, our Social Security, our long-term 

financial threats that are out there; in fact, it is going to exacerbate them. And he is absolutely firm in that view, and he has studied it quite in depth. 

So I think we do have a right to ask what is in our national interest, and as we go forward, I hope that some of those of us who 

have not been involved in this process of writing a bill that will 

41

soon be foisted upon us will at least have an opportunity to read 

it and to maybe make some amendments. 

Chairman LEAHY. Thank you. 

A high school diploma should not be the only criteria. I am sure 

you are not suggesting that. My father was one of the leading business people in Montpelier, employed a lot of people in a printing 

business that is still there bearing our name. He never had a high 

school diploma, nor did my Italian grandfather who also employed 

an awful lot of people in his stone shed. 

Senator Coburn? 

Senator COBURN. Mr. Chairman, unanimous consent to submit 

additional questions for the record. 

Chairman LEAHY. Of course. And we will keep the record open. 

Senator COBURN. If you all would respond to those. 

Chairman LEAHY. We will keep the record open for all members 

for that. 

Senator COBURN. I wanted to make a comment about what Secretary Chertoff has said, and I think it is dead accurate. The American people do not trust this Government on immigration. They do 

not trust the Republicans or the Democrats because we have not 

earned their trust on this issue. And I think it is very important 

that the process of now starting to secure our borders becomes 

more visible to the American public, starting to enhance internal 

enforcement becomes—and I also will tell the Chairman that I 

think any bill that goes through the Senate that doesn’t have the 

Isakson amendment in it is doomed for failure. It is doomed for rejection by the American people, and it will not work. 

We have to re-establish confidence before we address the issue 

of the 11 million people that are here, and I would hope that the 

administration would take that position. Since they are going to be 

the one negotiating with the majority, it is obvious that the Republicans are not. That Isakson amendment that says that we will 

start addressing these other issues in a humanitarian way is once 

we have certified that we have a secure border, and not until then. 

And that is what the American people expect, and that is what 

they deserve. 

A couple other questions, and you do not have to answer them 

other than short, and I will make them in long—I would love to 

know about the exit portion of the US-VISIT program, because I 

know we are not functioning at a level there. We cannot—from 

both homeland security where you have testified and here, Secretary Chertoff, that is a gaping hole for us right now. We know 

who comes in. We have no idea who leaves, which means we do not 

know whether people are actually violating their visas or not. 

Secretary CHERTOFF. We are on track to doing an air and sea 

port exit system. The land port is complicated, and this is going to 

be near and dear to the Chairman’s heart because— 

Chairman LEAHY. We have had some long discussions about this, 

Senator. 

Secretary CHERTOFF. We have never built infrastructure monitoring people who leave the country. Now, one solution might be to 

work with the Canadians and the Mexicans and get their information about who enters, which would, of course, achieve the same 

42

thing. And, we are talking to them about the possibility of pursuing 

that. 

Senator COBURN. All right. The other thing—and I will submit 

this—just in terms of ICE agents and administrative apprehensions and the number of ICE agents and the ratio of that and 

whether or not we will be efficient with that, I would appreciate 

you answering that by letter. 

Then I have one final question. It strikes me, as I go around the 

country, that when—and, Secretary Gutierrez, I certainly do not 

mean to embarrass you with this question, or Secretary Chertoff. 

When you were asked by the Chairman about English as an official 

language of this country, and we do not embrace that. And, you 

know, I find it rather ironic. I can be on call at my hospital and 

deliver an Hispanic woman who cannot speak English, but her 

medical record is all in English. The official record of our being 

there, the business record is in English. It is not in Spanish. And 

my poor Spanish is enough to coach me through delivering her 

baby. But why would we not embrace that, whether we have to 

help people come to the level of English education or English as a 

second language, but why wouldn’t we embrace that the official 

language of this country is English? It is what we operate our law 

under. It is what we operate—why do we not embrace that? Why 

does the administration not embrace that? Why does my colleague 

from Vermont not embrace that, when, in fact, the commonality of 

our English is the thing that keeps us together and united as a 

country? 

Secretary GUTIERREZ. Well, I will say two things. I think you are 

asking a legal question, but I will give you my two points of view. 

One is we have to do everything we possibly can to send the message out that everyone needs to learn English, and we do a great 

disservice to immigrants if we insinuate that it is not that necessary. That is the first thing I will say. 

Once we have all learned English, I think we all owe it to our 

country to learn a second language. 

Senator COBURN. I agree with you. 

Secretary GUTIERREZ. And I would hate to give anyone the impression that we think a second language is a bad thing. The first 

thing is English first, English plus, which I believe is a term that 

other people have used. I think we can embrace those two, and I 

do not think there is any confusion regarding those two. I think 

there is a great deal of clarity. 

Secretary CHERTOFF. I agree, and I think the President has made 

it clear that ultimately, as we deal with this issue of immigration, 

assimilation, being part of the culture of the United States, becomes a critical element of the policy. I think people look with 

alarm at what is going on in other parts of the world where there 

are large groups of immigrants who never actually become part of 

the fabric of society. And, we are now seeing some of the unfortunate harvest of that. 

The really good news in this country is we have, traditionally, 

without necessarily being legally coercive, built a system that encourages people to assimilate. We need to make sure whatever we 

do, we continue to push this issue of becoming part of the fabric 

of America as a critical cornerstone of our policy. 

43

Senator COBURN. Do you see some danger with having a guest 

worker program that we would have a persistent underclass, underpaid worker class, who does not assimilate, and because we 

have a guest worker program, rather than welcoming them as 

Americans, helping them get a greater education, have them climb 

the ladder, rather than create a guest worker program that says 

you are in a slot that you are not going to become an American, 

we are just going to use you as an underclass to supplement what 

we do not want to do? 

Secretary CHERTOFF. I think what we have now is an 

underclass— 

Senator COBURN. I do, too. 

Secretary CHERTOFF.—because I think when you have an invisible, fearful group of people who are, nevertheless, here, that is the 

most likely to produce an underclass. I think when you give them 

legal status and, therefore, they get certain basic legal protections, 

I think that actually decreases the element of an underclass. 

And then as somebody said earlier, to the extent that people 

when they are here legally get educations and move to better themselves, you know, there may be opportunities for them under existing programs. But, I think this is an area where—as the Secretary 

said starting out—there is far greater agreement, I actually believe, on where we need to get. The disagreement tends to be on 

what the best way is to get there. And, I think that gives me hope 

that we can actually solve this problem. 

I know if we do not do it now, we are leaving the American people in a very difficult situation. 

Senator COBURN. All right. Thank you very much. 

Thank you for your indulgence, Mr. Chairman. 

Chairman LEAHY. Of course. You have asked important questions, and I appreciate it. 

I did see a certain smile on Secretary Chertoff’s face when you 

talked about going either way across our borders. We had had a 

discussion of what happens if this WHTI is implemented fully, and 

Americans leave, for example, going into Canada, Canada says 

fine, come on through, and then an American citizen is denied 

entry to their own country because they do not have a passport or 

whatever kind of thing we do. 

I think that that is more than just an exercise in thinking. I 

think it is a reality, and I think it is one thing we have to really 

look at because you could actually have this—it would become a 

cause celebre in this country. Americans go across the border to 

Canada or Mexico, an American citizen, born and raised here, no 

question of citizenship. And then the do not have the proper papers 

and are not allowed back into the United States. Get a few thousand of those, I can almost write the headlines. But we have discussed that, and we will discuss it further. 

Do either of you believe that Americans are being denied jobs because of foreign workers? 

Secretary GUTIERREZ. No. In general terms, no. No. 

Chairman LEAHY. And, Secretary Chertoff? 

Secretary CHERTOFF. I agree with Secretary Gutierrez. 

44

Chairman LEAHY. And if our immigration system is reformed to 

accommodate the needs of agriculture and other industries, can we 

do this and make sure that Americans are accommodated there? 

Secretary GUTIERREZ. Yes, Mr. Chairman. I believe we can. 

Chairman LEAHY. Thank you. 

Well, I appreciate you both being here. We have been longer than 

I think we probably told you we would be, but I wanted to make 

sure everybody had a chance to ask questions. 

This is going to be a long process. It is not going to be an easy 

process. I am committed to getting a comprehensive bill through. 

I believe everybody will say they would be committed to getting a 

comprehensive bill through. The question is we have different definitions perhaps of what is comprehensive. But I think that the 

most important point in this whole thing is where the President is 

going to be and where he is going to be publicly on this. 

In the last meeting I had with him last year on this subject, I 

was extremely impressed with his commitment to it, with all the 

other things on his plate, his knowledge of the proposals being 

made, his reference to his own experience in Texas. But we are 

going to need that publicly, and we are going to need very public 

support of leaders of both the Republican and Democratic parties 

in both bodies. 

I believe it can be done. I believe if it is not done, we have a 

problem in this country that will actually hurt us. It will hurt us 

in being the kind of great country we are, and we will lose the 

chance to have the kind of diversity we need in America, which has 

made us strong throughout the years. 

So I thank you both very much for being here. 

[Whereupon, at 12:31 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

45


37096.001
46


37096.002
47


37096.003
48


37096.004
49


37096.005
50


37096.006
51


37096.007
52


37096.008
53


37096.009
54


37096.010
55


37096.011
56


37096.012
57


37096.013
58


37096.014
59


37096.015
60


37096.016
61


37096.017
62


37096.018
63


37096.019
64


37096.020
65


37096.021
66


37096.022
67


37096.023
68


37096.024
69


37096.025
70


37096.026
71


37096.027
72


37096.028
73


37096.029
74


37096.030
75


37096.031
76


37096.032
77


37096.033
78


37096.034
79


37096.035
80


37096.036
81


37096.037
82


37096.038
83


37096.039
84


37096.040
85


37096.041
86


37096.042
87


37096.043
88


37096.044
89


37096.045
90


37096.046
91


37096.047
92


37096.048
93


37096.049
94


37096.050
95


37096.051
96


37096.052
97


37096.053
98


37096.054
99


37096.055
100


37096.056
101


37096.057
102


37096.058
103


37096.059
104


37096.060
105


37096.061
106


37096.062
107


37096.063
108


37096.064
109


37096.065
110


37096.066
111


37096.067
112


37096.068
113


37096.069
114


37096.070
115


37096.071
116


37096.072
117


37096.073
118


37096.074
119


37096.075
120


37096.076
121


37096.077
122


37096.078
123


37096.079
124


37096.080
125


37096.081
126


37096.082
127


37096.083
128


37096.084
129


37096.085
130


37096.086
131


37096.087
132


37096.088
133


37096.089
134


37096.090
135


37096.091
136


37096.092
137


37096.093
138


37096.094
139


37096.095
140


37096.096
141


37096.097
142


37096.098
143


37096.099
144


37096.100
145


37096.101
146


37096.102
147


37096.103
148


37096.104
149


37096.105
150


37096.106
151


37096.107
152


37096.108
153


37096.109
154


37096.110
155


37096.111
156


37096.112
157


37096.113
158

Æ


37096.114