[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
SHORTFALLS OF THE 1996 IMMIGRATION
REFORM LEGISLATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 20, 2007
__________
Serial No. 110-25
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts LOUIE GOHMERT, Texas
LINDA T. SANCHEZ, California
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
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APRIL 20, 2007
Page
OPENING STATEMENT
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 3
WITNESSES
Mr. Douglas S. Massey, Ph.D., Professor of Sociology and Public
Affairs, Princeton University
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Paul W. Virtue, former INS General Counsel and Executive
Associate Commissioner, and Partner, Hogan & Hartson
Oral Testimony................................................. 27
Prepared Statement............................................. 29
Mr. Hiroshi Motomura, Kenan Distinguished Professor of Law,
University of North Carolina School of Law
Oral Testimony................................................. 40
Prepared Statement............................................. 42
Mr. Mark Krikorian, Executive Director, Center for Immigration
Studies
Oral Testimony................................................. 48
Prepared Statement............................................. 50
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Chairwoman,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 2
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 5
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 6
APPENDIX
Material Submitted for the Hearing Record
Submission to the Record by the Honorable Steve King, a
Representative in Congress from the State of Iowa, and Ranking
Member, Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law: ``Information on
Criminal Aliens Incarcerated in Federal and State Prison and
Local Jails'' from the U.S. Government Accountability Office,
April 7, 2005.................................................. 64
Answers to Post-Hearing Questions from Douglas S. Massey, Ph.D.,
Professor of Sociology and Public Affairs, Princeton University 102
Answers to Post-Hearing Questions from Paul W. Virtue, former INS
General Counsel and Executive Associate Commissioner, and
Partner, Hogan & Hartson....................................... 104
Answers to Post-Hearing Questions from Hiroshi Motomura, Kenan
Distinguished Professor of Law, University of North Carolina
School of Law.................................................. 109
Answers to Post-Hearing from Mark Krikorian, Executive Director,
Center for Immigration Studies................................. 111
SHORTFALLS OF THE 1996 IMMIGRATION
REFORM LEGISLATION
----------
FRIDAY, APRIL 20, 2007
House of Representatives,
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Gutierrez, Berman,
Jackson Lee, Delahunt, Sanchez, King, and Forbes.
Staff present: Ur Mendoza Jaddou, Majority Chief Counsel;
R. Blake Chisam, Majority Counsel; George Fishman, Minority
Counsel; and Benjamin Staub, Professional Staff Member.
Ms. Lofgren. This hearing of the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order.
Vigorous enforcement of the immigration laws is not only
necessary, it is our responsibility. We must demand respect for
the rules and also secure our borders.
In 1996, Congress put forward a plan to enhance the
enforcement of our immigration laws. A package of 1996
immigration reform laws further increased the number of Border
Patrol agents and technology for border enforcement, required
the Border Patrol to build fencing along the border, expanded
the grounds of removal, and streamlined the removal process.
Those laws created electronic employment verification systems
and eliminated eligibility for welfare benefits.
Those who wrote the bill, I am sure, meant to positively
impact the situation of illegal immigration. Ending illegal
immigration is an important goal. But, as we now know, the 1996
Act did not put an end to illegal immigration, not even close
to it.
The estimated numbers of illegal immigrants living in the
United States has risen dramatically since 1996, growing from
between 5 million to 6 million people to an estimated 11
million to 12 million today.
Until last year, the probability of an illegal border
crosser getting caught dropped precipitously since 1996, even
as more money and resources were committed to border
enforcement. Those crossing the border simply shifted to more
remote locations, making apprehension less likely, while also
making it more likely that migrants will hire coyotes or die in
the desert.
Congressional attempts to manage the borders have, by most
any measure, failed to accomplish the goal of stopping the flow
of illegal immigration. The law of unintended consequences has
reared its ugly head. We still have work to do and things to
fix.
The Illegal Immigration and Immigration Responsibility Act
of 1996, referred to as IIRIRA, created traps for those here
illegally. It not only increased the cost of coming to America,
but it also increased the cost of leaving. This has had the
unintended effect of making people stay in America even when
they would otherwise have returned home.
For decades before the 1986 Immigration Reform and Control
Act, illegal immigrants from Mexico came to America much as
they do today. The difference between then and now is that most
of them, some 80 percent, left within a couple of years. We
learned in our fourth hearing that IRCA disrupted those
historic patterns. The 1996 law not only continued to disrupt
those patterns, they made things worse.
Let me cite just one example. The 1996 Act created what are
known as the 3-and 10-year bars to entry. Because these bars
can only be triggered when someone departs the United States,
the bars provide an incentive for undocumented immigrants to
stay here, and stay they do.
Instead of staying for 2 to 3 years, Mexican immigrants now
tend to stay for 6 or 7 years or more. They have to. The cost
to get in has gotten too high. It takes longer to pay off the
coyote who has to be hired for each crossing, and because of
the 3-and 10-year bars, the cost of leaving are higher still.
And it has become even more dangerous and costly to reenter.
The road to ruin is paved with good intentions. We must
always be mindful of the law of unintended consequences. It is
easy to say, we simply need to enforce the laws we have. But
instead we need to work toward a comprehensive solution. We
must reform our immigration laws not only to secure our borders
but to provide for the safe, orderly and controlled future flow
of immigrants. We must make certain that we protect American
workers and safeguard the sanctity of family, and we must
ensure that we do not create a permanent underclass of
immigrant workers in this country.
I look forward to hearing from our distinguished panelists
today as we explore the unintended consequences and shortfalls
of the 1996 immigration reforms.
I would now recognize our distinguished Ranking minority
Member, Mr. Steve King, for his opening statement.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
Vigorous enforcement of the immigration laws is not only necessary,
it is our responsibility. We must demand respect for the rules and also
secure our borders.
In 1996, Congress put forward a plan to enhance the enforcement of
our immigration laws. A package of 1996 immigration reform laws further
increased the number of border patrol agents and technology for border
enforcement, required the border patrol to build fencing along the
border, expanded the grounds of removal and streamlined the removal
process. Those laws created electronic employment verification systems
and eliminated eligibility for welfare benefits.
Those who wrote the bill, I'm sure, meant to positively impact the
situation of illegal immigration. Ending illegal immigration is an
important goal.
But, as we now know, the 1996 acts did not put an end to illegal
immigration. Not even close to it.
The estimated number of illegal immigrants living in the U.S. has
risen dramatically since 1996, going from between 5 to 6 million people
to an estimated 11 to 12 million today. Until last year, the
probability of an illegal border crosser getting caught dropped
precipitously since 1996, even as more money and resources were
committed to border enforcement. Those crossing the border simply
shifted to more remote locations, making apprehension less likely,
while also making it more likely that migrants will hire coyotes or die
in the desert.
Congressional attempts to manage the borders have, by most any
measure, failed to accomplish the goal of stopping the flow of illegal
immigration.
The law of unintended consequences has reared its ugly head. We
still have work to do and things to fix.
The Illegal Immigration and Immigrant Responsibility Act of 1996
(referred to as the IIRIRA) created traps for those here illegally. It
not only increased the cost of coming to America, but it also increased
the cost of leaving. This has had the unintended effect of making
people stay in America, even when they would have otherwise returned
home.
For decades before the 1986 Immigration Reform and Control Act,
illegal immigrants from Mexico came to America, much as they do today.
The difference between then and now is that most of them--some 80%--
left within a couple of years. We learned in our 4th hearing that the
IRCA disrupted those historic patterns.
The 1996 laws not only continued to disrupt those patterns, they
made things worse.
Let me cite just one example. The IIRIRA created what are known as
the 3 and 10 year bars to reentry. Because these bars can only be
triggered when someone departs the United States, the bars provide an
incentive for undocumented immigrants to stay here.
And stay they do. Instead of staying for 2 to 3 years, Mexican
immigrants now tend to stay 6 or 7 or more years. They have to. The
costs to get in have gotten too high. It takes longer to pay off the
coyote who has to be hired for each crossing. Because of the 3 and 10
year bars, the costs of leaving are higher still. And it has become
even more dangerous and costly to reenter.
The road to ruin is paved with good intentions. We must always be
mindful of the laws of unintended consequences. It's easy to say we
simply need to enforce the laws we have.
Instead, we work toward a comprehensive solution. We must reform
our immigration laws not only to secure our borders but to provide for
a safe, orderly and controlled future flow of immigrants.
We must make certain that we protect American workers and safeguard
the sanctity of family. And, we must ensure that we do not create a
permanent underclass of immigrant workers in this country.
I look forward to hearing from our distinguished panelists today as
we explore the unintended consequences of the 1996 immigration reforms.
Mr. King. Thank you, Madam Chair. I appreciate you holding
this hearing today and appreciate the witnesses coming forward
to testify.
In the mid-1990's, there was a sea change in our strategy
to control the southern border. In 1994, the total complement
of Border Patrol agents was 4,226. The Border Patrol let
illegal immigrants cross the border and then tried to apprehend
them in border communities.
Now, numbers and the strategy were deficient. The southwest
border was in a state of crisis. The transit routes most
heavily used for illegal immigrants were in the San Diego
corridor, which had become an open sieve.
Then things changed. First, in El Paso, Texas, Border
Patrol Chief Silvestre Reyes, now Congressman of Texas's 16th
District, conceived and launched the most successful border
initiative in recent memory. Pursuant to Operation Hold the
Line, he placed his agents directly on the border and had them
stop attempted border crossings. This visual deterrent had the
effect of dramatically reducing illegal crossings, cutting
crime in border communities and winning the praise of the
public.
When top INS officials, resentful of Reyes' success, put
roadblocks in his path and resisted applying his doctrine in
other areas, it got more difficult. But Immigration
Subcommittee Chairman, Lamar Smith, brought Chief Reyes to
testify before Congress. Subsequently, INS adopted the Reyes
strategy in San Diego and dubbed it ``Operation Gatekeeper.''
It has been remarkably successful. Apprehensions have
plummeted, and the INS touted the operation as one of its most
successful border control initiatives ever.
Next, Congressman Lamar Smith and Senator Alan Simpson
wrote, and saw through to enactment, the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. The act
authorized a yearly net increase in Border Patrol strength of a
then unheard 1,000 a year. A decade later, the Border Patrol
has a strength of over 13,000 agents.
The act also called for the construction of a second and
third row of border fencing along the southern border for 14
miles inland from the Pacific Ocean. The fence, combined with
``Operation Hold the Line,'' which was facilitated by the
increasing Border Patrol strength, led to the San Diego border
being secured and crime in San Diego dropping by half.
As a result of these actions, it has become significantly
more difficult for illegal aliens and drug smugglers to cross
the southwest border. Illegal immigrants must now resort to
difficult routes across rugged terrain in California and in
Arizona. As long as Congress continues increasing Border Patrol
strength in the future, we can look forward to the day when the
entire border is brought under control.
Now, some make the argument that the increased border
security since the mid-1990's has actually made our illegal
immigration problem worse. The argument is that when illegal
immigrants could cross the border at will, they practiced
circular migration and went back and forth across the border.
Some did.
But once border security increased, many aliens who had
made it across the border stayed permanently in the U.S. for
fear of not being able to get back across the border after
returning home. That is the argument.
Now, this argument is flawed for two reasons. First, it
makes little difference as to the effect of illegal immigration
on the American economy and society whether illegal immigrants
stayed permanently or whether they go home for Christmas
vacation or any other time.
Second, the very data that Mr. Massey utilizes purports to
show that the percentage of illegal immigrants who return to
Mexico within a year of illegal entry declined between the mid-
1980's and the mid-1990's ever since then and has stayed
relatively stable.
Given that the major efforts to control the southwest
border did not begin until the mid-1990's, it makes no sense to
argue that increased border enforcements have resulted in more
permanence.
But even if we accept the circulatory premise for the sake
of this argument, it does not argue that we should abandon a
chance to further secure our borders. It has always been the
case that we can never control illegal immigration through
border security alone.
First, an estimated 40 percent of illegal immigrants have
come to the U.S. legally on temporary visas and have simply
illegally procured jobs and never left. Second, we will never
be able to totally seal our thousands of miles of land and
water borders. Some people will inevitably get through.
For both these reasons, border security must be combined
with robust interior enforcement, especially through the
enforcement of employer sanctions. Unfortunately, while we made
the border progressively tighter since the mid-1990's,
Administrations past and present have practically abandoned
worksite enforcement. That is why we have 20 million illegal
immigrants today, not because we have more Border Patrol
agents.
I am heartened by the steps taken by Julie Myers in the
past to reinvigorate enforcement. It is making a difference.
But the issue has been raised about how many die in the desert,
and I would say some of that is unmitigated by a reduced number
that are hit by cars because of illegal crossings in the San
Diego area.
And the point that I would make is that there are a
significant number of Americans who die at the hands of some of
those who are criminals who do get across that desert, and that
number is far, far greater in number, and we need to be
protecting and defending the American people. That is what this
policy is about.
I look forward to the testimony.
Thank you, Madam Chair, and I yield back.
Ms. Lofgren. Thank you.
And in the interest of proceeding to our witnesses and
mindful that we will be having a series of votes in the near
future, I would ask that other Members submit their statements
for the record within 5 legislative days.
Without objection, all opening statements will be placed
within the record.
And, without objection, the Chair will be authorized to
declare a recess of the hearing at any point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
Today we continue our examination of the earlier immigration reform
efforts. As we have done with the 1986 Act, we are looking to the 1996
example to inform us as we work to get it right this time.
Congress passed the IIRAIRA in 1996 as a ``get tough'' approach to
immigration management. But rather than ending illegal immigration,
there are more illegal immigrants ten years later than at any other
time in history. Why did this ``get tough'' law fail? Perhaps it failed
because it substituted an enforcement-only approach instead of an
approach that was balanced and pragmatic. Like IRCA, the 1996 law
turned out to lack options to meet the real-world needs of immigrants
and employers.
The IIRAIRA was outwardly very tough. It doubled the number of
Border Patrol agents and started the spate of fence building on the
Southern border. It sped removal and reduced the ability of courts and
the immigration service to weigh humanitarian factors. It made refugee
and asylum laws much more strict.
There were some things about that law that are positive, if
implemented fully. Such aspects of IIRAIRA as pilot programs to test
employment eligibility verification, visa waivers for certain
countries, and enhanced sentences for those who enslaved or abused
immigrants seemed to be positive steps at the time.
But by and large, IIRAIRA was a restrictive law in which
responsibility and enforcement fell on the powerless aliens, such as
through the statutory bars to re-entry for people who had to leave the
country even if there were pressing humanitarian reasons. Attempts to
address these problems through follow-up technical modifications were
derided and dismissed as ``amnesty'' programs. And so, once again, here
we are seeking a solution.
None of the 1996 law's get-tough provisions addressed the root of
the immigration issue. Indeed, they may have made it worse by cutting
off the circular migration that has always existed in the Americas.
Today we will hear from nationally recognized experts, including a
witness who labored mightily to try to implement IIRAIRA while he was
with the government. We hope to take away valuable lessons that will
help guide our work over the coming months to develop a controlled,
orderly, and fair immigration system.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
This hearing will examine the shortfalls of 1996 Immigration Reform
Legislation. The most significant bills from that period are the
Antiterrorism and Effective Death Penalty Act of (AEDPA) and the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
AEDPA was intended to deter terrorism, to provide justice for
victims, and to provide an effective death penalty. It was passed by a
Republican-controlled Congress following the Oklahoma City bombing and
signed into law by Democratic President Bill Clinton. It also has
provisions which have an impact on immigration law.
Among other things, AEDPA requires mandatory detention of non-
citizens who have been convicted of a wide range of criminal offenses,
including minor drug offenses. IIRIRA expanded this list to include
more offenses.
One of the troublesome aspects of these mandatory detention
provisions is that they are not restricted to serious criminal
offenses. Under these provisions, mandatory detention may apply to
aliens who were convicted of a crime for which no time in prison was
actually served because the crime was so insignificant.
Mandatory detention also is required in expedited removal
proceedings. My Save America Comprehensive Immigration Act of 2007,
H.R. 750, would eliminate mandatory detention for aliens in expedited
removal proceedings. This apples even if the alien has never been
convicted of any criminal offense and does not pose a flight risk. This
is particularly troublesome in view of the fact that many of the aliens
in expedited removal proceedings are women and children or members of
some other vulnerable population.
Mandatory detention is wrong and it wastes resources. It requires
the detention of people who do not need to be detained despite the
shortage of detention space for aliens who really do need to be
detained. It makes more sense to provide discretion for releasing
people in detention if they are not a danger to the community or a
flight risk, which is the standard for aliens who in removal
proceedings but are not subject to mandatory detention.
AEDPA authorized state and local police to arrest and detain aliens
who are unlawfully present in the United States, which is a violation
of civil immigration law, but only in the case of aliens who have been
convicted of a felony in the United States. AEDPA required a nexus
between civil immigration law violations and the criminal behavior
before local police could detain individuals with civil violations.
IIRIRA went further and authorized state and local police to
enforce civil immigration laws when there is a ``mass influx'' of
foreign nationals, the situation requires an immediate response from
the federal government, and federal officials obtain the consent of the
state or local supervising department.
IIRIRA also established a mechanism which can be used to delegate
immigration law enforcement authorities to state and local police
provided the officers have undergone adequate training and have entered
into a formal agreement with the Department of Justice. This is known
as the MOU process, for ``memorandum of understanding.''
In addition, IIRIRA provides that public employees cannot be barred
from reporting immigration-related information about a particular
individual to the immigration service. This was done in response to
state and local laws or executive orders that had been enacted around
the country to prohibit such disclosures. My Save America Comprehensive
Immigration Act would strike this provision.
IIRIRA includes a wide variety of changes which made it far easier
to deport or exclude non-citizens for minor criminal violations which
occurred many years ago. Among other things, IIRIRA lowered the
sentence and monetary amount thresholds for many of the crimes on the
list of aggravated felonies and other excludable or deportable offenses
and did so on a retroactive basis--meaning that offenses that were not
previously deportable became deportable retroactively in 1996, even if
they occurred in earlier years.
My Save America Comprehensive Immigration Act would provide
Immigration Judges and the Board of Immigration Appeals with the
discretion to avoid removal on the basis of nonserious offenses. It
provides that a conviction which did not result in incarceration for a
year or more may be disregarded for immigration purposes as a matter of
discretion. This permits the adjudicator to base the removal decision
on whether the specific offense involved warrants removal.
Ms. Lofgren. We have four distinguished witnesses here
today to help us consider the important issues before us.
First, I am pleased to welcome Dr. Douglas Massey, a
professor of Sociology and Public Affairs at Princeton
University. Professor Massey currently serves as the Director
of Graduate Studies at Princeton's Woodrow Wilson School, and
his research has focused on topics ranging from international
migration to urban poverty. Professor Massey currently serves
as President of the American Academy of Political and Social
Science and co-edits the Annual Review of Sociology. He
reviewed both his master's and doctorate degrees from
Princeton.
We will next hear testimony from Paul Virtue, a former
general counsel to the United States Immigration and
Naturalization Service. During his tenure at INS, Mr. Virtue
supervised over 600 attorneys on the nationwide litigation team
and advised the INS Commissioner, the Commissioner of the White
House and several other Federal agencies on immigration
matters. Mr. Virtue currently practices law as a partner at
Hogan & Hartson here in Washington and holds his law degree
from the West Virginia University College of Law.
I would like next to welcome Hiroshi Motomura, a professor
from the University of North Carolina's School of Law.
Professor Motomura co-authored the widely used law school case
book, Immigration and Citizenship: Process and Policy. He has
served as co-counsel in several recent immigration cases before
the Supreme Court and is a member of the American Bar
Association's Commission on Immigration. Professor Motomura is
a graduate of Yale College and the University of California-
Berkeley's Boalt Hall School of Law.
Finally, I would like to welcome Mark Krikorian, the
Executive Director of the Center for Immigration Studies, a
research organization here in Washington, DC, that examines the
impact of immigration on the United States. Mr. Krikorian has
published articles in The Washington Post, the New York Times
and the National Review, among other publications. Mr.
Krikorian holds a masters degree from the Fletcher School of
Law and Diplomacy and a bachelor's degree from Georgetown
University.
Now, as you can tell, there are bells ringing and lights
flashing, and what that tells us is that we have a series of
votes on the floor of the House. We have nine votes, the first
one of which will be 15 minutes and the remainder of which will
be 5 minutes apiece. And that is the last of the day.
I apologize that your testimony has been interrupted. We
should reconvene--when would be a good time--an hour, really,
it will be an hour. If you can come back at, let's say, 11:15.
Is that possible for the witnesses to do? There is a cafeteria
in the basement where there is coffee and doughnuts.
We will recess and be back here at 11:15 to hear your
testimony. Thank you very much.
[Recess.]
Ms. Lofgren. We are back in session, and I would like to,
first, apologize to the witnesses. The voting took forever. But
we are here now to hear your testimony. The entirety of your
written testimony will be made part of the record.
I would ask that each of you summarize your testimony in 5
minutes or less, and we will remain within that time limit on
questions.
And, Dr. Massey, if you would begin.
TESTIMONY OF DOUGLAS S. MASSEY, Ph.D., PROFESSOR OF SOCIOLOGY
AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY
Mr. Massey. Chairman Lofgren, Ranking Member King, since
1986, the United States has pursued a politics of contradiction
with respect to Mexico.
On the one hand, we have joined with Mexico and Canada to
create an integrated North American market and made
arrangements for the free movement of goods, capital,
information, resources and services across our borders.
On the other hand, within this otherwise integrated market,
we have acted unilaterally in a vain attempt to block the
movement of labor. This contradictory policy has not only
failed, it has backfired, producing outcomes that are
categorically worse than if we had done nothing at all.
Under pressure from U.S. Treasury in 1986, Mexico joined
the general agreement on tariffs and trade and looked northward
to join Canada and the United States in a new free trade
agreement, which was enacted on January 1, 1994. Since that
date, Mexico and the U.S. have formally been committed to
unifying markets within North America.
As shown in figure one, total trade between the two
countries--it is not advancing--total trade between the two
countries has skyrocketed, increasing eight times between 1986
and 2000. Since 1986, the number of exchange visitors from
Mexico has tripled, the number of business visitors has
quadrupled, and the number of intercompany transferees has
grown five times. Within this rapidly integrating economy,
however, U.S. policymakers have somehow sought to prevent the
cross-border movement of workers, in essence, seeking to
integrate all markets except for one, that for labor.
To finance this fundamental contradiction, beginning in
1986 we adopted an increasingly restrictive set of immigration
and border enforcement policies. Let's just do it without the
slides.
To connect this fundamental contradiction, beginning in
1986, we adopted an increasingly restrictive set of immigration
and border policies. First, the Immigration Reform and Control
Act granted $400 million to expand the Border Patrol, the 1990
Immigration Act authorized hiring of another 1,000 officers,
and in 1993, these new personnel were deployed in Operation
Blockade as part of an all-out effort to stop unauthorized
border crossing in El Paso, a strategy that was extended to San
Diego in 1994 as Operation Gatekeeper.
Finally, the 1996 Illegal Immigration and Immigrant
Responsibility Act provided funds to hire another 1,000 border
officers per year through 2001.
From 1986 to 2002, the Border Patrol's budget increased by
a factor of 10, the number of hours spent patrolling border
grew eight times, and the number of Border Patrol officers
tripled. In essence, the U.S. militarized the border with its
closest neighbor, its second largest trading partner and a
nation which was committed by treaty to an ongoing process of
economic integration.
Rather than slowing the flow of immigrants into the United
States, however, this policy of insisting on separation while
promoting integration yielded an array of unintended and very
negative consequences. The most immediate effect was to
transform the geography of border crossing.
Whereas, undocumented border crossing during the 1980's
focused on San Diego and El Paso, the selective hardening of
these borders after 1993 diverted flows to new and more remote
locations. And as late as 1989, only one-third of undocumented
migrants crossed outside of San Diego or El Paso, but by 2002,
two-thirds were crossing somewhere else.
And once they had been deflected away from traditional
migration points, migrants kept on going. Before 1993, no more
than 20 percent of all undocumented migrants went to States
other than the three traditional destinations of California,
Texas and Illinois, but by 2002, 55 percent were proceeding to
some new State of destination. Undocumented migration was thus
nationalized.
In addition to transforming the geography of immigration,
U.S. border policies had two additional unplanned effects.
First, by pushing immigrants into more remote and less
hospitable sectors of the border, the enforcement in San Diego
and El Paso dramatically increased the number of migrant
deaths. The rate of death during undocumented border crossing
tripled from 1992 to 2002.
In addition, although remote sectors were more dangerous,
they were also less patrolled and contained fewer enforcement
resources. By pushing migrants into desolate sectors of the
border, U.S. polices, therefore, actually lowered the
likelihood that illegal migrants would be apprehended.
At first, the migrants unwittingly walked into the new wall
of enforcement resources in these two built-up sectors and the
probability of apprehension temporarily went up. Quickly,
however, migrants got wise and went around the built-up sectors
and crossed through empty deserts, sparsely populated ranch
land and wild sections of the Rio Grande. And as a result, the
probability of apprehension plummeted to record low levels.
The financial costs of border crossing to migrants were
nonetheless driven upward. The average cost of hiring a border
smuggler tripled from $400 to $1,200 in real terms.
Unfortunately, Mexicans did not respond to the new costs and
new risks of border crossing by deciding not to migrate;
rather, they decided to stay longer once they were here.
As shown in the figure, the probability that a Mexican male
or female would decide to undertake a first trip to the U.S.
did not change from 1980 to the present. For men, the
probabilities fluctuated between 1 and 2 percent per year, and
for females, it has never exceeded a fraction of 1 percent.
Rather than responding to the increased costs and risks of
border crossing by staying home, Mexicans hunkered down and
stayed once they had achieved entry. Rather than returning
home, possibly to face----
Ms. Lofgren. Dr. Massey, I forgot to announce that when the
red light goes on, the 5 minutes are up. I turned it off, but
if you could summarize, that would be great.
Mr. Massey. Basically, what I would like to say is that the
attempt to close off a border with our largest trading partner
has backfired, and the rate of in-migration into the United
States has not changed in 20 years. What changed was the rate
of out-migration, and that doubled the rate of undocumented
population growth in the U.S., and that was a complete function
of our border policy.
[The prepared statement of Mr. Massey follows:]
Prepared Statement of Douglas S. Massey
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much.
Mr. Virtue, we will time this. When your yellow light goes
on, you have about a minute left, and when the red light goes
on, your 5 minutes are up.
TESTIMONY OF PAUL W. VIRTUE, FORMER INS GENERAL COUNSEL AND
EXECUTIVE ASSOCIATE COMMISSIONER, AND PARTNER, HOGAN & HARTSON
Mr. Virtue. Thank you, Madam Chair, Ranking Member King and
Members of the Subcommittee. Thank you for the opportunity to
appear before you this afternoon.
The IIRIRA amended virtually every section of title two of
the Immigration and Nationality Act. It represented the most
comprehensive immigration legislation since the McCarran-Walter
Act of 1952.
For example, the Act authorized a substantial increase in
Border Patrol agents, increased the penalties for illegal
entry, eliminated the distinction concerning the rights of
aliens based on entry to the United States, added a number of
immigration-related crimes, including smuggling and visa fraud
to the RICO predicate offenses, authorized expedited removal
without a hearing for aliens who commit fraud or fail to
present a proper visa, restricted eligibility for relief from
removal, overhauled the process for the removal of inadmissible
and deportable aliens from the United States, barred aliens
from returning to the U.S. following periods of unlawful
presence in the United States, added new crimes to the growing
list of aggravated felonies, making that definition
retroactive, and mandated detention for aggravated felons,
including permanent residents, and placed significant limits on
judicial review.
Indeed, given the scope of the 1996 Act, it is difficult to
conceive of an area, with the possible exception of a reliable
system for verifying employment authorization, in which the
Federal Government lacks powerful authority today to enforce
our immigration laws.
What we do lack, and always have lacked, are the adequate
resources to secure the border against unlawful entry; to
identify, detain and remove aliens who have committed serious
crimes, to properly investigate and prosecute those who commit
alien smuggling and document fraud; and to enforce measures
against unauthorized employment.
The challenge, thus, facing this Congress will be to find a
balance in terms of the statutory mandates and to move to
efficiently enforce the immigration laws, while keeping a keen
focus on excluding or deporting the bad guys. The threshold
question in that analysis, one that is outside the scope of
this hearing, is whether we should continue to expend limited
resources on the large percentage of the undocumented
population in the United States to continue to contribute to an
economic boom.
The question that is within the scope of this hearing,
however, is, in removing discretion from the authorities
charged with enforcing our immigration laws, whether IIRIRA of
1996 went too far. I submit that in a number of areas it did
and by doing so actually limited the ability of the agencies
responsible for enforcement to develop a rational set of
enforcement priorities.
Those areas are mandatory custody. Immigration detention is
designed to serve two important enforcement goals. It ensures
the alien's availability for proceedings and possible removal,
and it protects the community from any potential danger the
alien might pose. In a society like ours, however, those
legitimate goals must be balanced against an alien's equally
legitimate liberty interests.
Historically, aliens taken into custody were afforded an
opportunity to have these competing interests weighed by an
immigration officer and by an immigration judge who could order
them removed, or order them released or detained pending
completion of removal proceedings and any appeals.
In 1996, however, Congress enacted the mandatory detention
scheme for aliens, including permanent residents, whose
criminal convictions might subject them to removal. The impetus
behind this change in the law was a concern that criminal
aliens subject to removal proceedings were climbing at high
rates.
But even before Congress passed this legislation, concerns
about absconders had been addressed effectively by the
provision of increased detention resources, which gave
immigration officers and judges greater flexibility and order
in detention. In fact, the Clinton administration consequently
advised Congress against including the broad mandatory
detention provisions that ultimately were enacted.
Secondly, restrictions on discretionary relief from
removal. Prior to IIRIRA, aliens who were otherwise deportable
could apply to an immigration judge to have their deportations
suspended. If the application was granted, the alien would be
eligible to adjust status. To qualify, aliens had to show they
were continuously present for a minimum of 7 years, they were
persons of good moral character and their deportations would
result in extreme hardship. The IIRIRA changes increased that
standard and severely limited the availability of discretionary
relief.
The other aspects are the limitations on judicial review of
immigration decisions. Under IIRIRA, those court-stripping
provisions provide that administrative findings of fact are
conclusive unless a reasonable adjudicator would be compelled
to conclude to the contrary. So, consequently, those provisions
have substantially diminished the ability of non-citizens to
have their cases heard before a neutral arbiter.
And, finally, the 3-and 10-year bars on admission. As we
know, the IIRIRA created bars to admissibility for people who
have been in the U.S. for more than 6 months or more than 1
year and who return to their home country. The problem that
that created has been a paradoxical one and that is that it
has, actually, created an incentive for people who are here
unlawfully to remain here unlawfully rather than to be able to
go home and apply for immigrant visas.
So, in conclusion, the net result of the enforcement
measures enacted in IIRIRA has been a reduction in the
discretion available to immigration authorities in
administering the immigration laws. I would submit that
discretion should be restored in a number of years.
Thank you.
[The prepared statement of Mr. Virtue follows:]
Prepared Statement of Paul W. Virtue
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you, Mr. Virtue.
Mr. Motomura?
TESTIMONY OF HIROSHI MOTOMURA, KENAN DISTINGUISHED PROFESSOR OF
LAW, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
Mr. Motomura. Madam Chair, Ranking Member King, Members of
the Subcommittee, thank you for the privilege of appearing
before you today.
I would like to suggest two ways to think about the 1996
Act. I will state them briefly and then elaborate. First is
that an enforcement-only approach to immigration legislation
will undermine the rule of law, and the second is that any
evaluation of the Act needs to look closely at the effects on
U.S. citizens.
First, on enforcement, an immigration system that respects
the rule of law needs to include not only enforcement but three
other essentials of our legal system. One is discretion,
subject to legal standards; second is decision-making that is
based on expertise and subject to checks and balances; and the
third is due process.
Now, speaking to discretion, that can mean different
things, but I think it is very important to see the difference
between unreviewable discretion that is outside the law and the
sort of discretion that respects the rule of law. Especially in
the early part of the 20th century, discretion and immigration
was largely discretionary. This was most extreme for Mexican
immigrants. They were tolerated when the economy needed them
but deported when they were deemed expendable.
Now, this discretion, historically, was unreviewable and
arbitrary but was gradually channeled, first for Europeans and
Canadians and later for all immigrants, into formal mechanisms
with legal standards, like suspension of deportation and
adjustment of status.
Now, the 1996 Act produced opportunities to apply
discretion, subject to legal standards and review. For example,
it curtailed eligibility for cancellation of removal and it
provided for mandatory detention.
So to illustrate the problems that result, mandatory
detention makes it much harder, for example, to obtain counsel,
and when we impair access to counsel, we don't know what errors
are being made in rule proceedings.
The 1996 Act also increased the number of discretionary
decisions that aren't subject to legal standards or meaningful
administrative or judicial review. For example, the Acts have
really reduced judicial review or discretionary denials of
relief.
In short, the 1996 Act moved away from discretion that is
case-by-case justice, according to legal standards, and it
moved back toward discretion that can be arbitrary,
unpredictable and discriminatory.
Now, thinking about discretion leads us to think more
generally about decision-making based on expertise and subject
to checks and balances. One example here is expedited removal,
which applies, in theory, only to someone who lacks any
defenses to removal. But the question is whether any individual
is really such a person lacking defenses.
Expedited removal gives ultimate authority to low-level
officials and thus eliminates the procedural protections
afforded in immigration court by judges and counsel. Again, we
don't know what mistakes are being made, for example, denying
asylum to someone who has a right to protection under both U.S.
and international law.
I mentioned lack of judicial review of discretionary
decisions, but lack of judicial review is a broader problem.
Although the Supreme Court has essentially compelled some
restorations, significant bars to review remain, and they are
especially troubling because of a parallel reduction in BIA
review.
Along with accuracy, a related casualty is uniformity,
which can only be achieved with recorded, formal administrative
and judicial decisions. A lot of it isn't uniform. It is
unequal, it is unpredictable, and its unpredictability means
inadequate notice. Any system of immigration law is doomed to
make mistakes if we simply hope that they will come to light
without any mechanism being established to discover them, and a
system that can't have confidence in its accuracy diminishes
respect for the rule of law.
And most of what I have identified as problems of
discretion or decision-making can also be thought of as due
process problems, but the 1996 Act has other kinds of due
process problems as well. I will just mention one: retroactive
changes to immigration law. This practice pre-dates '96, but
the Act made it much worse by making many non-citizens
deportable for reasons that had no immigration consequences
originally.
Retroactive laws fail to give the notice that is essential
to due process so that individuals can understand the
consequences of their actions, and lawyers can give reliable
advice.
Let me quickly address my second major theme, which is
effects on U.S. citizens. An enforcement-only approach leads to
mistakes that cause devastating harm to many citizens who may
be the non-citizen's husband or wife, father or mother or
child. When our immigration system doesn't adhere to the rule
of law, we diminish and we devalue what it means for them to be
American citizens.
An example is the cutback on cancellation eligibility for
applicants who typically have immediate family members who are
citizens. Another is the failure to consider citizen children
for waivers of the 3-and 10-year bar.
My two main points today are that any assessment of the
1996 Act should adopt two yardsticks: The rule of law and
effects on U.S. citizens.
Let me close by suggesting that if we are to foster the
integration of immigrants into American society, it is
essential to build confidence in an immigration law system on
the part of immigrants and the citizens who are closest to
them. And integration of immigrants, in turn, is essential to
the long-term success of any immigration policy.
Thank you.
[The prepared statement of Mr. Motomura follows:]
Prepared Statement of Hiroshi Motomura
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much.
And, finally, Mr. Krikorian?
TESTIMONY OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR
IMMIGRATION STUDIES
Mr. Krikorian. Thank you, Madam Chairwoman and Members of
the Subcommittee.
The shortcomings of the 1996 immigration law come in two
parts. One is a defect in the bill itself, and I think more
important is the defect in the execution of the law.
As far as the bill itself, the law itself, there was one
very large mistake in the 1996 law and that was rejecting the
recommendations of Barbara Jordan's Commission on Immigration
Reform to cut overall legal immigration. The Jordan commission
recommended a reduction of about one-third in total legal
immigration, focusing in particular the family portions of the
flow more tightly and eliminating certain categories.
The original versions of what became the 1996 law
incorporated all of the Jordan commission's recommendations,
including those regarding legal immigration, but Congress split
the legislation and passed only the illegal immigration
portions and abandoned the legal immigration parts of Ms.
Jordan's recommendations.
This was a mistake for two reasons. One, immigration is
simply too high. Mass immigration is not compatible with the
goals and the characteristics of a modern society, but that is
the subject for a different hearing.
Secondly, the goal of the 1996 law, ultimately, was the
reduce illegal immigration, and even in this respect, the
decision not to streamline and reduce legal immigration was a
mistake because of the intimate connection between legal and
illegal immigration. In other words, it is simply not possible
to have high levels of legal immigration without at least
creating very intense pressures for high levels of illegal
immigration.
But I would submit the bigger problem with '96 is the
execution of the '96 law provisions and immigration law, in
general, since then.
Barbara Jordan told this very panel in 1995, ``Credibility
and immigration policy can be summed up in one sentence: Those
who should get in, get in; those who should be kept out are
kept out; and those who should not be here will be required to
leave.'' And that simply hasn't happened.
To understand why that hasn't happened, the storyline has
developed that the enforcement efforts, starting in the 1990's,
had the perverse effect of increasing settlements of illegal
immigrants. This is what Professor Massey was talking about.
And the storyline goes this way: that illegal aliens were
happily coming and going in circular migration flow, as they
put it, until enforcement made it harder to get back in, and,
therefore, the incentive was to stay here rather than to come
and go. The broad claim, basically, is that border enforcement
creates illegal immigration.
The absurdity of this claim is clear from the top of the
two figures that I have here. The Census Bureau shows that long
before new border enforcement measures, Mexican immigration,
which is a pretty good proxy for illegal immigration since it
accounts for most illegal aliens and most Mexicans either are
or were illegal aliens, Mexican immigration has been growing
rapidly for at least a generation. There weren't even 800,000
Mexicans in the United States in 1970, and that has doubled
each decade, long before there was any border enforcement of
significant consequences.
But let's concede, for the sake of argument, that there
actually is something to this, that the rate of return of
illegals, that the minority of Mexican immigrants who went back
and forth, that minority has gotten even smaller.
The reason, though, is not just border enforcement because
something else was going on in the 1990's, not just increases
in border enforcement, modest though they were, frankly, but
also an almost complete abandonment of interior enforcement, as
the lower second of the figures I have shows.
And so what has caused, to the extent there has been an
interruption of this back and forth, it is the combination, the
dysfunctional combination of increased border enforcement with
the complete abandonment of interior enforcement, which simply
reduces the incentive for illegal aliens to leave. This is
well-documented. The bottom graph shows the number of fines
issued to employers, which fell to three, a total of three in
2004. Other factors also declined related to interior
enforcement. And this sends illegal aliens the message that it
is hard to get in or a little harder, but if you can make it,
you are home free.
We have seen a minor change in that over the past year. The
Administration has permitted and asked for funding for some
modest increases of an enforcement, and it actually seems to be
doing what it is intended to do, which is reduce illegal
settlement and increase the return migration of illegal aliens.
This doesn't mean the problem is solved. This means that we
have taken some baby steps now over the past year in the right
direction and that the proposals for what has come to be called
comprehensive immigration reform would actually short-circuit
this progress and return us to where we were before, which is
continually increasing illegal populations.
Thank you.
[The prepared statement of Mr. Krikorian follows:]
Prepared Statement of Mark Krikorian
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Thank you very much.
Before we go to questions, I learned that Dr. Massey has a
train to catch, and I don't know whether you want to miss your
train and take our questions or have us submit our questions in
writing to you. The choice is entirely yours with no hard
feelings on our part. Okay.
I am going to stick very closely with the 5 minutes, given
the lateness of the hour.
If I understand your testimony correctly, Dr. Massey, you
basically are saying that the level of in-migration is about
the same every year. It is who stays here that has contributed
to the increase in the number of people who are here without
their documents.
Is that pretty much a correct summary?
Mr. Massey. As far as I can tell, the rate of in-migration
from Mexico hasn't changed much in 25 to 30 years. What changed
was the rate of out-migration back to Mexico, and that is
largely a function of our own border policy. So by militarizing
the border with your friendly trading nation, you decrease the
rate of out-migration.
Ms. Lofgren. I have a question. I am just looking at this
chart. It looks to me, and I am not suggesting that it is
causative so much as correlative, that the amount of fines for
employers, which I guess you could use a rough-cut measure of
increased workplace enforcement, seems to correlate with an
increase in the number of illegal immigrants here. I don't
know, this is an interesting chart.
But let me tell a story and ask a question of Mr. Virtue
and Mr. Motomura, since you are experts in current immigration
law from your testimony.
We had a situation in Santa Clara County. Things like this
happen all the time, but it was in the newspaper and there was
a tremendous outcry in the public as a consequence. And here is
the situation. A Jewish woman from Russia, she was a Russian,
came to the United States. She didn't apply for asylum; she
came on a temporary visa. I believe it was a visitor's visa.
She might have actually been qualified for asylum because of
the oppression against Jews in Russia at the time, but she
didn't have the right visa.
She overstayed her visa, she violated the rules in that
regard, but she met and fell in love with an American man, and
they got married, and they had a baby. And she was teaching
piano in her home with the infant and was associated with the
Jewish temple in Sunnyvale, CA.
Well, he was an American citizen, born and raised here.
They went to apply to make her a legal resident and instead
they arrested her because she had overstayed her visa and they
would not allow her to leave, even though she was nursing this
infant. And then, ultimately, they deported her back to Russia
and said that she could not come back for 10 years, even though
by then her infant, obviously, would have no memory of her at
all.
What in the 1996 Act would lead to that result, and what
changes would we need to make so that a woman like that would
be able to stay with her U.S. citizen husband and infant?
Mr. Virtue and Mr. Motomura, just real quickly.
Mr. Virtue. As I understand the case, she actually should
have been permitted to remain here, even under the laws that
existed in the 1996 Act, because she came lawfully on a visa,
and even though she overstayed and was now out of status, her
marriage to a U.S. citizen should have made her eligible. The
agency, however, doesn't have to permit the person to pursue
the green card, pursue the visa petition and adjust status, but
normally they would. So, I am not exactly sure what happened in
that particular case, but I----
Ms. Lofgren. Maybe it is not fair to ask the particulars of
the case, but there have been many cases on the 3- and 10-year
bar that have come to--I hear that all the time on the floor of
the House where Members on both sides of the aisle say they
have these situations that are just really very tough ones and
how do we fix this. How would we fix this?
Mr. Virtue. If she had come without a visa, for example,
she had come from--well, if she had come in without a visa,
then she would not be eligible to adjust her status here
because of the elimination of section 245(i), and the 3-and 10-
year bar would prevent her from returning to her home country
to apply for an immigrant visa without a waiver that is pretty
difficult to get.
So a change would be to eliminate the 3-and 10-year bar.
That would----
Ms. Lofgren. Or maybe make it some other way that it is
applied?
Mr. Virtue. Exactly. Maybe have a waiver that is more
reasonable in terms of approval.
Ms. Lofgren. My time is almost up.
Mr. Motomura, do you have anything to add?
Mr. Motomura. Well, I would endorse everything that Mr.
Virtue said on the legal front. I would only add that this may
illustrate a couple of other points. One is that we have
processing delays that make it very difficult for people to
obtain the relief to which they are entitled. And, secondly, we
have information gaps in this and in other areas, particularly
where there is no right to counsel. You have to add those to
the legal issues that Mr. Virtue addressed.
Ms. Lofgren. Thank you very much.
I will now yield to Mr. King for his 5 minutes.
Mr. King. Thank you, Madam Chair.
First, Mr. Massey, you testified that the numbers of deaths
in the desert between 1992 and 2002 essentially tripled over
that decade period of time. Would you care to reiterate your
analysis of the reasons for that?
Mr. Massey. The concentration of enforcement resources in
urban areas, namely San Diego and El Paso, basically diverted
the flows around them.
Mr. King. And those resources would be?
Mr. Massey. Those resources would be more Border Patrol
officers, more equipment, more intensive patrolling efforts and
building of walls.
Mr. King. And in fact if we looked at the Border Patrol
increase in numbers, that took place in probably the second
half of that decade rather than the first half. So one might
believe that the facilities had the initial impact on that,
that being the physical structures, such as the fencing?
Mr. Massey. People went around the fencing.
Mr. King. I thank you.
And so, Mr. Massey, if we could build--and what you said is
fencing is effectively, at least for that area, and they will
go around the end.
Mr. Massey. They will go around the end, right.
Mr. King. So if we could build a fence from San Diego to
Brownsville--and let me go to the extreme and hypothetical so
we don't have to do definitions here--all the way down to hell
and all the way up to heaven, it was entirely impermeable but
directed all traffic to the ports of entry and we had our ports
of entry beefed up so that we had the kind of surveillance
there that is more effective than we have today, would you
agree that that would solve a lot of the illegal traffic across
our border?
Mr. Massey. Not unless you had officers patrolling----
Mr. King. I would agree with that.
Mr. Massey. If you had officers stationed every 500 yards
along the entire border and built a fence, you would probably--
--
Mr. King. Let me say it is impermeable. Our hypothetical
covers that.
Mr. Massey. Well, if you assume the border is impermeable,
then it is, by definition, impermeable.
Mr. King. Okay. And I am going to go to another point here
then, and I didn't think you could actually out-hypothetical me
here. [Laughter.]
Let me go to another point. If you were going to import
people from another population, and they had a violent crime
rate of, say, three times greater than the one of the recipient
population, would you expect then to see the crime rate
increase in the recipient nation?
Mr. Massey. No, I would not.
Mr. King. Would you care to explain that answer?
Mr. Massey. Because migration is highly selective, and the
criminals aren't the ones that are likely to be moving.
Mr. King. Could you explain why 28 percent of the inmate
population in our Federal penitentiaries are criminal aliens?
Mr. Massey. They are largely on immigration offenses,
immigration-related offenses.
Mr. King. That really, I don't think, will hold up under
analysis. But, also, a GAO study that was done and released in
April of 2005 does report to those things and has analyzed the
staff funding, and I would ask unanimous consent to introduce
into the record the GAO study from 2005.
Ms. Lofgren. Without objection.
[The information referred is available in the Appendix.]
Mr. King. Thank you.
Just to make a couple of points here is that I think this
analysis actually does hold up and that if you are going to
take a general population of a country that is more violent,
you can expect at least a cross-section of those people to
yield a more violent result.
If there are $65 billion worth of illegal drugs coming
across that border, that also is a self-filtration process that
brings in people that are more likely to at least be involved
in the drug trade and one would presume more violent. And if
you bring in people who demographically are more violent, for
example, young men, you can expect your crime rate to go up.
And I would submit that the violent death rate here in the
United States is 4.28 per 100,000; in Mexico, it is 13.2 per
100,000; in Honduras, it is nine times; in Colombia, it is 15.4
times. There are no numbers for El Salvador.
I think that it adds up, and the demographics that we know
predict why 28 percent of our population in our prisons are
criminal aliens, Mr. Massey.
In the short time that I have--and I thank you for you
answers--Mr. Krikorian, would you care to comment on that, on
what one could expect if one looked at those demographics?
Mr. Krikorian. Well, there actually has been a report on
this not that long ago that actually contradicted the point you
are making, in other words, that immigrants are less likely to
engage in crime. Unfortunately, the data source used from the
census was a corrupted source. The point is we don't really
know the answer to this using data.
What we do know, though, or what we are pretty sure of is
that the crime rate explodes from the first to the second
generation, that actually the children of immigrants are
dramatically more likely to engage in criminal activity than
native-born Americans, and that is a consequence, clearly, of
immigration policy and one we have to address.
Mr. King. Thank you, Mr. Krikorian.
Thank you, Madam Chair. I yield back.
Ms. Lofgren. The gentleman's time has expired.
The gentleman from Massachusetts is recognized for just 5
minutes.
Mr. Delahunt. I thank the Chair.
These are all very fascinating figures, and we can do an
analysis on a gut basis. I have my own analysis about the $65
billion. If we didn't have people consuming the drugs in this
country that are violating our own statutes, then maybe we
wouldn't be having the $65 billion coming from South America.
So I don't know if we are doing a very good job about
treating in a holistic way the--but why don't--and I would ask
the Chair and the Ranking Member if there ought to be an
examination in terms of whether this 28 percent--I mean, if
there are immigration violations, then let's find out the
answers to this. I think we should know that because I think it
is important we get on the same page as far as the statistics
are concerned.
I have heard everywhere from 8 million to 20 million
undocumented, illegal----
Ms. Lofgren. If the gentleman will yield.
Mr. Delahunt. I will yield.
Ms. Lofgren. We are going to have a series of hearings, two
to three a week, and we will be examining many of the data
points, because we can argue about our opinions but hopefully
we will not be arguing about the facts.
Mr. Delahunt. Yes. I mean, my opinion and yours, the Chair,
and the Ranking Member's opinion is just simply that, opinion,
and it has no validity in terms of the discussion, with all due
respect to all of us.
I would also like to pose a question. You know, we hear a
lot about our labor needs, and there was a panel yesterday that
talked about our labor needs, and of course that shifts over
time. And one problem that was put forth was that it is not
timely in nature or timely in reality. How do we go about
determining what our labor needs are to continue to fuel our
national economy appropriately?
And ought there be, if none really exists other than
snapshots at a particular time, should there be some sort of
advisory group, comprised of members of the business community,
members from academia, members of organized labor, working with
the appropriate Federal agency to determine what our labor
needs are so we can match the availability of the slots for
legal immigrants to come into this country to assist us in
terms of meeting our economic needs as far as the workforce is
concerned?
Mr. Krikorian. Is that a question for any of us?
Mr. Delahunt. Yes.
Mr. Krikorian. I would like to respond to that. I would
have to say it is really not Congress or the executive's job to
gauge labor needs; that is for the market to deal with. And we
have----
Mr. Delahunt. But I am relating it, Mr. Krikorian, to that
might be for the market to do, but if we don't have enough
workers in this country to meet the demand, then the market is
fine, but I want to make sure that our economy continues or
hopefully prospers.
Mr. Krikorian. But that is what I would challenge. Labor
shortage is just a market signal that employers need to both
pay more for the available labor and use the available labor
more efficiently. In other words, my view would be that there
should be no solely labor-related immigration at all, that
people should be admitted for some other reason, family
members, what have you, and then allowed to make their own way
within the labor market.
Mr. Delahunt. Fair point. But my point is, is there any
gauge that currently exists that----
Mr. Krikorian. There is no good gauge for that. If there
were, the Soviet Union would still be around, because, in a
sense, it is a kind of central planning----
Mr. Delahunt. No. Don't try to----
Mr. Krikorian. I am not trying to----
Mr. Delahunt. What I am talking about is to have available
data so that employers, the business community, can make
decisions.
Mr. Krikorian. By the time that data gets to someplace, it
is already too old. That is the whole problem.
Mr. Delahunt. My point is then, is it possible to make that
data timely for a decision, to the other three witnesses?
Mr. Motomura. Well, what I would add to that is that I
agree that the market is important and determinative in many
respects. I would agree with the gentleman's suggestion that
the information needs to be had, but I also would caution
against seeing labor needs as the ultimate driving force.
Ms. Lofgren. The gentleman's time has expired.
And we ask, since people are running for planes, the
gentlelady from Texas to ask her 5 minutes' worth of questions,
understanding that follow-on in writing questions are available
to all of them.
Ms. Jackson Lee. Let me thank the gentlelady for holding
this important hearing and also to compliment this Subcommittee
for the approach which we are now taking, which we have taken
in the past but now taking it, I hope, with a direct target,
and that is to try and, if you will, to move toward reasonable,
rational but with certainty for immigrants, status immigrants
who are likewise in limbo, those who are documented, and that
is, I think, the important responsibility that we have.
So I thank the witnesses, and I do apologize for not
hearing your testimony. I was in a Homeland Security hearing.
But I do know that IRCA, having been here at that time, was
supposed to be the great savior. I think it was a great boon
for lawyers, and I have no angst against them, being one
myself, but it greatly limited the availability of
discretionary relief. I think it even presented some of the
concerns we have about immigration judges who failed to listen
to any reputable response on confusion that might have abounded
and caused the individual before them to be in this dilemma.
We know that the INS lost fingerprints, applications. We
know that children that were on lines with their families aged
out waiting so long. We know that the IRCA restricted access to
Federal courts, I think, in complete objection to the values we
have here on due process. It established expedited removal
proceedings unfairly, and it imposed mandatory detention, and
it also, I think, had this uncanny ability to send thousands
home deported who had never been to their home place, based
upon some juvenile infraction that was turned into a felony.
Some might think that my position is to be loose on
immigration, and that is not the case. I want to be balanced
and fair.
So let me ask Dr. Massey, we have had a decade of
enforcement, and as we look at Mr. Krikorian's graph, I don't
think it shows anything except for the fact that we have failed
in some way.
Can we solve this problem with enforcement, enforcement,
enforcement or do we need to fix some aspect of what was called
696--or not 696, what was called the 1996 bill? Do we need to
fix '96 with some consideration on these restrictive
procedures, and we do we need to balance enforcement with a
reasonable structure of immigration?
Mr. Massey. I think that '96 and other legislation has
really created a very unforgiving system and a very rigid
system that needs to be reformed, because it limits discretion
and puts people in impossible positions and forces them out of
status, sometimes even if they tried to play by the rules.
In terms of enforcement, I don't think that more border
enforcement is going to help anyone. It is as if a homeowner
has built a steel wall in the front of his house and he wants
to get more secure so he is going to build a second layer of
steel wall but he has no wall on either side and his back door
is flapping open. It is not going to enhance your security in
any way.
I think if you want to do enforcement, it should be
internal enforcement and for that you would need some kind of
tamper-proof ID card that an employer could use to verify the
right to work in the United States. Border enforcement is not a
good way to control immigration, and my data shows that it
backfired.
Ms. Jackson Lee. Not the only way.
Mr. Virtue, I have legislation that has a provision for
providing immigration judges with discretion when the basis for
removal is a non-serious incident. As you well know, '96 wanted
to go back and get--and I don't promote any of this, I want to
criminals in jail, but is it important to train immigration
judges and give some discretion as lawyers present hardship
cases in the courtroom?
Mr. Virtue. I don't think there is any question about that,
Mrs. Jackson Lee. It is going to be important to make a
judgment about where we use our limited resources, because they
are always going to be limited. And so I think we have to make
a judgment about whether we continue to expend resources to
detain and deport people whose only offense is to be here
unlawfully.
We also have to make a judgment about whether we
mandatorily detain and eliminate relief for permanent residents
who have committed crimes 20 years ago that are coming back
because of the retroactive effect of the definition of
aggravated felony.
So I agree with you, that, yes, there has to be discretion
restored, not just at the immigration judge level, although
that is very important, but also at the officer level.
Ms. Lofgren. The gentlelady's time has expired.
I would note that we have gotten a tremendous amount out of
this hearing, despite the fact that we were interrupted by more
than an hour of voting on the House floor, and I do thank all
the witnesses for their testimony, their written testimony as
well as their willingness to stick with us for questions.
Member will have 5 legislative days to pose additional
questions in writing to the witnesses, and we ask that you
answer as promptly as you are able to so that your answers may
be made part of the record. And, without objection, the record
will remain open for 5 legislative days for the submission of
any other additional materials.
This hearing has helped illuminate numerous issues about
the 1996 Act. I know that it will prove helpful to us as we
move forward in our consideration of comprehensive immigration
reform.
We will see everyone at Tuesday, 11 a.m. next week for our
next hearing, which will begin to examine enforcement,
workplace enforcement.
With that, this hearing is adjourned, with thanks.
[Whereupon, at 12:55 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Submission to the Record by the Honorable Steve King, Ranking Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law: ``Information on Criminal Aliens Incarcerated in
Federal and State Prison and Local Jails'' from the U.S. Government
Accountability Office, April 7, 2005
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Answers to Post-Hearing Questions from Douglas S. Massey, Ph.D.,
Professor of Sociology and Public Affairs, Princeton University
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Answers to Post-Hearing Questions from Paul W. Virtue, former INS
General Counsel and Executive Associate Commissioner, and Partner,
Hogan & Hartson
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Answers to Post-Hearing Questions from Hiroshi Motomura, Kenan
Distinguished Professor of Law, University of North Carolina School of
Law
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Answers to Post-Hearing from Mark Krikorian, Executive Director,
Center for Immigration Studies
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]