Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

By:  Howard Berman
Date: Dec. 16, 2005
Location: Washington, DC


BORDER PROTECTION, ANTITERRORISM, AND ILLEGAL IMMIGRATION CONTROL ACT OF 2005 -- (House of Representatives - December 16, 2005)

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Mr. BERMAN. Madam Chairman, reserving the right to object, and I do not intend to object, might I ask the author of the amendment, as he was speaking I was wondering what was going on. It sounded like he was giving a very articulate and reasoned, I disagree with some of the points, but reasoned position for an amendment that he was not allowed to offer under this rule.

I am wondering whether he thought it might have been appropriate that a coequal branch of the Congress, the House of Representatives, on an issue as fundamental as the one he has just spoken to might have been allowed to have had a couple of amendments in order for this issue to be discussed and voted on in this body. Would that have been a sensible way to approach this issue?

Mr. HAYWORTH. Madam Chairman, will the gentleman yield.

Mr. BERMAN. I yield to the gentleman from Arizona.

Mr. HAYWORTH. Madam Chairman, I thank my friend from California.

Madam Chairman, I would say to my friend from California, my votes on procedural questions speak for themselves in this regard. I thank the gentleman for his time.

Mr. BERMAN. Madam Chairman, further reserving the right to object, in case anyone noticed, the gentleman from Arizona did not support rules which prevented us from discussing maybe the most important issue involved in the context of whether or not to pursue comprehensive immigration reform.

Madam Chairman, I withdraw my reservation.

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Mr. BERMAN. Madam Chairman, I thank the gentleman for yielding me this time, and I would ask the chairman to consider one specific thing about one very discrete narrow part of the manager's amendment.

In the fantasy world we are in, should this bill ever actually become a law, the issue on the passport violations that the gentleman from Michigan just spoke to, there are limited situations where someone that you and I and everyone around would agree truly was a refugee, with a well-founded fear of persecution, escaping from a politically repressive regime took advantage of some kind of falsified and altered passport in order to escape.

The only question I have, as we look at the manager's amendment now, there should be some discretion here in the context of either criminalizing or deportation to allow a situation where that was the purpose; the person met the full test of a refugee and that that not become a basis for deporting him or her back to the regime or incarcerating that person or charging them with a criminal offense.

Mr. CONYERS. Madam Chairman, I would be pleased to yield 30 seconds to the chairman of the committee.

Mr. SENSENBRENNER. Madam Chairman, I thank the gentleman for yielding me this time.

First, on the hypothetical the gentleman from California raised, there is this thing called prosecutorial discretion. It seems to me we should have more faith in our prosecutors not to prosecute genuine refugees, but continue the law on the books as proposed in the manager's amendment that will get at the people who use passport fraud to cover the transportation of a lot of people who are not refugees and who should not enter the United States.

Mr. CONYERS. Madam Chairman, I yield 15 seconds to the gentleman from California.

Mr. BERMAN. Madam Chairman, I felt that answer was not totally satisfactory from my point of view.

Would somewhere in the context of the language of that provision or the report language indicate that it is not our intent in that situation, with your classic refugee purpose?

Mr. SENSENBRENNER. Madam Chairman, I yield myself 30 seconds to say that, should this matter survive conference, there will be a statement that it is not intended to include the situation in the statement on the part of the managers. And I can say, as the floor manager of this bill and the author of the manager's amendment, it does not either.

Madam Chairman, I yield back the balance of my time.

Mr. CONYERS. Madam Chairman, I yield myself the balance of my time.

The other point that we would like to make, and there are so many, but the manager's amendment punishes amazingly battered immigrant women who would suffer some very harsh consequences when they are frequently forced by their batterers to use fraudulent travel documents.

Under the Violence Against Women Act, battered immigrants are entitled to self-petition for immigration status, independent of their abusive U.S. citizen and lawful permanent residence spouse. So this would be a huge step backwards for those of us who have been working in this area.

So I urge and I hope that because there has been insufficient attention given in the committee and since we did not know these were going to come up, that the manager's amendment will be turned back and that we be given an opportunity to examine this more than a dozen objections that we raise.

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Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding me this time, and I do not oppose the amendment. In fact, I think it should be labeled from ``our lips to God's ears.''

If we say that by a certain date we will stop and Homeland Security will stop, using the chairman's definition, will have operational control so that no terrorists, no illegal aliens, no drug smugglers ever come into our country; if we say that and we say it strong enough, then maybe it will happen.

And after we do that, I suggest a bill that says that by a certain date we eliminate poverty, and pass that, and a few other very important goals that I think we all share here.

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Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I congratulate and agree with the notion that no immigration benefit should be given to any alien until all relevant background and security checks have been completed and any suspected fraud related to the granting of such status or benefit has been fully investigated and found to be unsubstantiated.

The gentleman from Florida is right. He has said in the context of his comments for this amendment that he believes that is happening now, and he may be right. I do not know that it is not. But all I know is that for my congressional office and for my colleagues' congressional offices, every time our staffs call regarding the processing of an immigration application, we hear there is nothing we can do. We are waiting for the FBI to get an answer. Why the FBI is just choosing the cases our congressional offices do, to hold back on providing information and denying immigration benefits, I do not know. In other words, what you say and what you ask for is correct, but the problem is not so much with the immigrant. The problem is with the bureaucracy.

The resources, the leadership to get these terrorist lists, these watch lists, the criminal database up to date so we can get this information in a quick time is very important.

I would just like to tell a quick story about the NSEERS program in Los Angeles. They had a registration date for different countries. If you are here from Iran on a nonimmigrant visa, come in on such and such date and register. People did that. Huge numbers of people flocked into the Los Angeles office of INS to do that.

The FBI was totally unable to give any clearance to the people who were coming in. Huge numbers of people were held, detained and kept overnight over a weekend thinking they were just going to file a registration form because the FBI could not get the clearance. That is a scandalous way to treated a number of people who came here as refugees fleeing the tyranny of the ayatollah because our bureaucracy failed to provide the answers.

So to me the answer here in Homeland Security and the FBI and in the other critical agencies is to get these lists and this other critical information online and accurate and quick so that we can move ahead with legitimate requests for these benefits that should be conditioned on getting that information out.

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Mr. BERMAN. Mr. Chairman, I thank the gentlewoman for yielding.

I want to understand the state of play. If this amendment goes to a vote, a recorded vote, then am I to understand that the chairman and the Republican leadership has offered a tough bill and now they are asking their colleagues on the majority side to soften the criminal penalties for illegal immigration?

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Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding to me an additional minute.

To follow up, I support very strongly the Velázquez amendment, and I am glad that the chairman and the majority support it as well. It is very important. But as I look at the bill, I find an issue that will take a higher precedence than the problem of the backlog in terms of our constituents and in terms of our congressional offices and I think will put that far in the background in terms of things that most bother them, because under the Alien Smuggling and Related Offenses provision of the bill that we will be asked to vote on, anyone who assists, encourages, directs, or induces a person to reside in or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside or remain in the United States, is subject to penalties of up to 5 years in jail if it is not for commercial purposes. If it is for commercial purposes, understandably, it would be tougher sentences.

So when a person calls my district office and talks to my congressional staff and says, I was here on a temporary visa, the date passed, I have an immigration petition pending, is there anything I can do? if my office assists that person or suggests that person go see a lawyer and perhaps if my assistant does not call the Department of Homeland Security and tell them to pick that person up, my staffer, potentially, is subject to criminal penalties. Congressional staff do not have congressional immunity. That means I am going to have to do all the casework in my district office. I think we need a little correction of the base bill in this particular area of alien smuggling. We are sweeping very widely here.

With that, I urge adoption of this amendment.

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Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding me this time.

There is an interesting juxtaposition going on between the gentleman's amendment and the base bill. The gentleman says something that I think is very important: we have got to prioritize. The priority in a country where there are 10, 11 million people who are here without status and under this bill and would, therefore, becoming guilty of a criminal offense, he says let us get the 500,000, whatever number it is, who have committed crimes of violence and economic crimes and murder and drug dealing and all these things. And he is right. No one can disagree. That should be the most urgent priority.

But in a universe where you have criminalized all 11 million, you have lost our ability to do that. So what is so funny about the argument for the gentleman's amendment is that in the context of this, all 11 million, it is the flip side of where some people have to wear a band designating it and the way of protesting that is everybody wear the band. You have lost your ability to prioritize.

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Mr. BERMAN. Mr. Chairman, reserving the right to object, and I do not intend to object, I wanted to simply point out to my friend from Colorado that before he praises this legislation too much, he should make sure there really is a strategy to turn it into a law, because I am very skeptical that you will ever see this bill coming back from here, very skeptical. If I had to bet, I would bet these provisions which you like and which you think make this into an attractive proposition and a serious attempt will never be seen again.

I simply want to add one other point: one day I would like you to explain to me how the employee verification system, which I think, like you do, is a critical part of dealing with the problem of illegal immigration, will ever get implemented in the context of 10, 11, 12 million people in this country in unauthorized status.

Mr. TANCREDO. Mr. Chairman, will the gentleman yield?

Mr. BERMAN. I yield to the gentleman from Colorado.

Mr. TANCREDO. Mr. Chairman, the gentleman knows that I have often approached this particular issue with a certain degree of cynicism, perhaps the same amount as he is expressing right now in terms of its prospects.

All I know is this: this is what I have before me today. This is what this House is being asked to address and to accomplish. That one thing, if nothing else happens, I am happy to have been able to get it to this point.

I am truly hopeful, and I recognize full well the gentleman is right that there are major obstacles to getting this beyond this point, but that is a fight to fight tomorrow. Today we are here, it is a good bill, and I certainly hope that we can pass it.

Mr. BERMAN. Mr. Chairman, without accepting the gentleman's assumptions about the worthiness of the bill, I withdraw my reservation of objection.

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