Comprehensive Immigration Reform Act of 2006--Continued
COMPREHENSIVE IMMIGRATION REFORM ACT OF 2006--Continued
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AMENDMENT NO. 4142
Mr. DURBIN. Mr. President, I call up my amendment numbered 4142.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Illinois, [Mr. DURBIN], proposes an amendment numbered 4142.
Mr. DURBIN. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To authorize the waiver of certain grounds of inadmissibility or removal where denial of admission or removal would result in hardship for a spouse, parent, or child who is a citizen or permanent resident alien)
On page 183, between lines 4 and 5, insert the following:
SEC. 235. WAIVER OF CERTAIN GROUNDS FOR INADMISSIBILITY OR REMOVAL BASED ON HARDSHIP TO CITIZEN OR PERMANENT RESIDENT ALIEN SPOUSE, PARENT, OR CHILD.
(a) Waiver.--Notwithstanding any other provision of law and except as provided in subsection (b), the Secretary of Homeland Security (in the sole and unreviewable discretion of the Secretary) or the Attorney General (in the sole and unreviewable discretion of the Attorney General), as applicable, may waive any ground of inadmissibility or removal of an alien under, or arising from, an amendment made by a provision of section 203, 208, 209, 214 or 222 of this Act if the denial of admission or removal of such alien would result in an extreme hardship to a spouse, parent, or child of such alien who is a citizen or an alien lawfully admitted for permanent residence.
(b) Exception for Terrorists.--No waiver may be made under subsection (a) under or arising from an amendment referred to in that subsection with respect to a ground of inadmissability or removal under a provision of law as follows:
(1) Section 212(a)(3) of the Immigration and Nationality Act.
(2) Section 237(a)(4) of the Immigration and Nationality Act.
Mr. DURBIN. Mr. President, this amendment would authorize the Attorney General or the Secretary of Homeland Security to grant a humanitarian waiver to an immigrant if deportation would create extreme hardship for an immediate family member of the immigrant who is a U.S. citizen or a legal permanent resident.
The Senate is considering a bill that takes a comprehensive approach to solving the problem of illegal immigration. One aspect of the bill is strengthening enforcement of our immigration laws. I support that. We need to strengthen enforcement to restore integrity to our immigration system. No one will believe we are serious about immigration reform unless enforcement is a critical element.
But as we make our laws tougher, we must make certain we hold true to American values. We should treat people fairly. We shouldn't separate families if it would cause extreme hardship to American citizens.
I am concerned that some of the enforcement provisions in this bill are so broad they may have unintended consequences. These provisions have the potential to sweep up long-term legal permanent residents and separate them from their American families.
Let me give one example which will surprise most Members of the Senate. It illustrates the need for this amendment. Under current immigration law, a legal permanent resident convicted of an ``aggravated felony'' is subject to mandatory detention and deportation. The definition of aggravated felony in the Immigration and Nationality Act is very broad. It includes nonviolent crimes such as shoplifting. Section 203 of this bill would expand the definition of aggravated felony even further. It would now be an aggravated felony to aid or abet the commission of many nonviolent crimes.
Under this provision, a teenager who is a lawful permanent resident and has lived in this country most of her life, could be subject to mandatory detention and deportation if she drives a friend home from the mall after the friend shoplifts a DVD.
Let's take another example. The bill greatly expands the definition of document fraud to include potentially innocent activities such as omitting immaterial information from an immigration application. The bill would make such an omission a ground for deportation for the first time, so we are creating a new avenue for deporting people who are currently in the United States legally.
For example, a lawful permanent resident who inadvertently fails to include information about her parent's birthplace and address on her citizenship application could be convicted of document fraud and deported.
My amendment would follow very closely what Senator Kyl and Senator Cornyn accomplished last week. The Senate approved a Kyl-Cornyn amendment that under very strict circumstances will allow a humanitarian waiver for undocumented immigrants who apply for legal status under this bill. We are following to the word the Kyl-Cornyn amendment for the cases of legal immigrants who might be deportable as a result of changes in the law made by this bill.
In my Chicago office, 80 percent of the casework relates to immigration. I can tell you we encounter case after case that would break your heart. In so many cases, people who have lived and worked in the United States for a long period of time and have immediate family members who are Americans are falling between the cracks of the law.
Most often, when we present these cases to Homeland Security they say that they are powerless to do anything because our immigration laws allow so little flexibility.
Every Member of the Senate has heard the pleas of a constituent or a friend or someone who has faced this kind of a dilemma. In most cases, we have no ability to help them.
My amendment would follow the Kyl-Cornyn amendment and create a very limited waiver that would apply only in the most compelling cases--where deportation of an immediate family member would cause extreme hardship to an American citizen or legal permanent resident. The waiver would not be automatic. The burden would fall on the immigrant to prove that extreme hardship would occur if he or she were deported.
In every case, the Government has complete discretion to deny the waiver. To quote my amendment, the decision to grant a waiver would be in the ``sole and unreviewable discretion'' of the Attorney General or Secretary of Homeland Security--the identical language used in the Kyl-Cornyn amendment. This same strict standard was enacted last week by the Senate in the Kyl-Cornyn amendment by a vote of 99 to 0.
The Kyl-Cornyn waiver would apply in cases where undocumented immigrants are seeking legal status. The waiver in my amendment would apply in cases where an immigrant who was previously in legal status is subject to deportation only because of a change in the law made by this bill.
Shouldn't we give the same chance to a legal immigrant facing deportation that we give to an undocumented immigrant seeking legal status? Deportation is very serious. For an immigrant, it means permanent exile from family and home. And in some situations, it may even be a matter of life and death.
I think it is appropriate that we build on the good work of Senators KYL and CORNYN. Their standard is tough, but it is fair, and it certainly is not an easy standard to meet.
It is also important to note that the discretionary waiver in my amendment is limited only to new penalties that are a consequence of this bill. In other words, it only applies to deportations that are a direct result of the changes in law made by this bill.
I should also point out that in no circumstances would this waiver apply to cases involving suspected terrorists. The text of the amendment makes that explicit.
We already give the Government broad discretion to apprehend, detain, and deport undocumented immigrants. My amendment would give the Government limited discretion--very limited discretion--to show mercy in only the most compelling cases.
The supporters of this amendment include the U.S. Conference of Catholic Bishops, Catholic Charities USA, Hebrew Immigrant Aid Society, American Jewish Committee, League of United Latin American Citizens, National Council of La Raza, Hispanic National Bar Association, Service Employees International Union, National Immigration Forum, American Immigration Lawyers Association, Asian American Justice Center, Mexican American Legal Defense and Education Fund, Human Rights Watch, and National Immigration Law Center.
Mr. President, I will close by saying this: most Members of the Senate would be surprised to learn that under this bill a young person who is guilty of aiding a shoplifter could be deported from the United States. In light of this, you can see why there ought to be a very limited option for the Secretary of Homeland Security and the Attorney General to grant a humanitarian waiver to an immigrant if it would cause extreme hardship to an immediate relative who is an American. We followed the same standard in the Kyl-Cornyn amendment, which was adopted earlier, and I hope my colleagues will support this amendment.
Mr. President, at this point, I withhold the remainder of my time and yield to the chairman.
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Mr. DURBIN. Mr. President, I would like to ask the Senator from Texas to reconsider his position because we followed the language of his amendment exactly in limiting this waiver to cases where deportation of an immigrant would cause ``extreme hardship to a spouse, parent or child'' of the immigrant who is an American citizen or lawful permanent resident.
We also followed his language exactly in committing the decision whether to grant a waiver to ``the sole and unreviewable discretion'' of the Attorney General or Homeland Security Secretary. In every case, the government would have complete discretion to deny the waiver. No court could review the denial of a waiver. That is an extremely high standard. It is one that would apply only in very limited circumstances.
And I say to the Senator, consider for a moment, if you would, that the group of people that would be affected by the Kyl-Cornyn amendment are those who are in the United States in undocumented status, who have received final orders of deportation and have not left the United States. I think the Senate took a wise, bipartisan course in saying that even those people should be viewed in some circumstances as deserving of another chance--but in very limited circumstances.
Now we are talking about a different class of people in my amendment. These are people who are here legally. They are not undocumented. They are legal permanent residents. Then, because of new changes in the law that this bill would make--not the old standards but new standards in the law--they might be subject to deportation. And we say, in those cases, where you have people who are here legally, who may be subject to deportation because of changes in the law made by this bill, we will give to the Attorney General or the Secretary of Homeland Security ``sole and unreviewable'' discretion to decide whether there is a humanitarian case for not deporting them. I think it is fair to treat those who are currently here legally at least as well as those who are currently not here legally.
The Senator's earlier amendment dealt with that class that is here undocumented, and I supported him. I thought it was a very wise and humane thing for him and Senator Kyl to do. But I would ask him to consider. Shouldn't those who are here in legal permanent status receive at least as much consideration, if this new law establishes some means by which they could be deported, so in the case where there is extreme hardship to their American immediate family members, the Secretary would have this authority to grant them a waiver?
I say to the Senator, we use your identical language. And I did that even though I might have wanted to put it in different words. I thought to myself, let's stick to the standard that was established in the Kyl-Cornyn amendment. So I hope the Senator from Texas will reconsider.
Mr. President, I reserve the remainder of my time, if the Senator has any comments.
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Mr. DURBIN. Mr. President, may I say to the Senator from Texas, ``aggravated felony,'' as defined by this bill, could include aiding or abetting shoplifting. So in that extraordinary case, where someone is a legal permanent resident and is about to be deported because of changes we are making in the law, this amendment would give one last chance to that person to go to the Secretary of Homeland Security and say: Please, don't ask me to leave the country because I drove the car when my girlfriend shoplifted a DVD. It would cause extreme hardship to my mother and father, who are American citizens. And the Secretary can say: No. And it is not reviewable by a court. He will be deported. But it at least leaves that last option. These are people who are currently legally in the United States whom we are trying to protect.
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AMENDMENT NO. 4142
The PRESIDING OFFICER (Mr. MARTINEZ). The next vote is on the Durbin amendment. There is 2 minutes equally divided.
The Senator from Illinois is recognized for 1 minute.
Mr. DURBIN. Mr. President, last week, by a vote of 99 to 0, we created a humanitarian waiver for undocumented people in the United States who are seeking to get on the pathway to legalization. We said we would allow a nonreviewable look by the Secretary of Homeland Security at the cases of certain undocumented immigrants who would otherwise by ineligible for legalization.
This amendment says if you are currently legally in the United States and, as a result of changes in the law made by this bill, may be deportable for failing to include a piece of information on an immigration form, an immaterial omission, you also could qualify for the same kind of humanitarian waiver, nonreviewable by a court.
It is the same standard for legal residents that last week we approved for the undocumented. I hope the Senators on both sides will support the amendment.
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