Comprehensive Immigration Reform Act of 2007

COMPREHENSIVE IMMIGRATION REFORM ACT OF 2007 -- (Senate - May 23, 2007)

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AMENDMENT NO. 1169 TO AMENDMENT NO. 1150

Mr. BINGAMAN. Mr. President, I ask unanimous consent that the pending amendment be set aside, and I send to the desk an amendment to the underlying substitute and ask for its consideration.

The PRESIDING OFFICER. Without objection, the pending amendment will be set aside.

The clerk will report.

The legislative clerk read as follows:

The Senator from New Mexico [Mr. BINGAMAN], for himself, and Mrs. Feinstein, Mr. Obama, Mr. Dodd, and Mr. Durbin, proposes an amendment numbered 1169 to amendment No. 1150.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:
(Purpose: To reduce to 200,000 the number of certain nonimmigrants permitted to be admitted during a fiscal year)

Strike subparagraph (B) of the quoted matter under section 409(1)(B) and insert the following:

``(B) under section 101(a)(15)(Y)(i), may not exceed 200,000 for each fiscal year; or

In paragraph (2) of the quoted matter under section 409(2), strike ``, (B)(ii),''.

Mr. BINGAMAN. Mr. President, this is an amendment to reduce the number of visas issued each year under the new guest worker program that is in this bill--reduce it to 200,000. This is 200,000 new visas each year which would be permitted if my amendment were to be adopted.

The amendment I am offering is cosponsored by Senators FEINSTEIN, OBAMA, DODD, and DURBIN. It is essentially the same amendment I offered when we had the debate on the immigration bill last year when we were fortunate to have the support of 79 Senators for the amendment.

Let me talk a little bit about the context of this before getting into the detail of the amendment. The Kyl-Kennedy or Kennedy-Kyl substitute amendment allocates 400,000 new guest worker visas per year, and it has in it also an increase mechanism that allows the annual allocation to go from 400,000 up to 600,000 per year. After a few years, presumably, we would be at a level of 600,000 per year from then on. Workers are allowed to stay for a total of 6 years under this program. They would work for 2 years--and Senator Dorgan described this very accurately as part of the debate on his amendment yesterday--and they would be allowed to work for 6 years; that is, they work for 2 years, leave the country for 1 year, work for an additional 2 years, leave the country for another year, and work for an additional 2 years, then leave for good. That is the structure of the system as it now stands. I can go into whatever details Members are interested in to explain how the increase mechanism provided for in the law is structured, but before I get into that, let me just talk about the larger context.

This bill, the Kennedy-Kyl substitute, contains really three so-called temporary worker programs which are very distinct, and individuals can come to our country and work in our country under any of these three programs.

One program is what I would refer to as the true temporary worker program, and that is where you bring people in for seasonal work. Clearly, that is something we have done for a long time. I think the limit in the law today is 66,000 are permitted to come in each year for temporary work--to work at resorts or work in some kind of a seasonal job--and then that 66,000 is then allowed to be increased to reflect those who have come the previous year or two. In fact, I think the estimate I have seen is that there are about 135,000 people in our country each year doing that kind of temporary seasonal work.

This bill, this Kennedy-Kyl substitute, would change that 66,000 to 100,000. It would contain an increase mechanism similar to what is in this new guest worker program, and so the 100,000 would eventually go to 200,000 after a few years. As I understand it now, there is also written into the law, written into the substitute, a provision that says the 200,000 number for the seasonal guest workers does not include people who have been here under that same program working in any 1 of the previous 3 years.

Obviously, you have the potential for a great many more than 200,000 to come in as seasonal temporary workers under that provision.

Another separate provision of this substitute bill which allows for temporary workers to come in is the agricultural workers program. I point out to my colleagues, that is without limit. There is no cap on that. There is a tremendous opportunity for people to come into this country and work in agriculture. We do not have numerical limits on that, so, to anyone who says we are not going to be allowing people to come into the country to do the work Americans don't want to do, the truth is, if they want to do work that is related to agriculture, we can bring them in, in whatever numbers, without any limits being imposed by this law.

The third opportunity to come in as a so-called temporary worker is this new guest worker program. This is a little bit of a misnomer, when we talk about temporary worker, because these are permanent jobs that we are bringing people in to fill. People need to understand that. These are not temporary jobs, these are permanent jobs. We are bringing people in for a temporary period, or a designated period of 2 years, three different times, to do the work. But these are not temporary jobs in the same sense that a seasonal job is a temporary job--that you have it for a few months and then the ski resort closes and you no longer have a job. That is not the kind of jobs we are talking about.

As I see it, there are several fundamental problems with this guest worker program as it is currently constructed. The most significant problem is the bill anticipates letting way too many people come into this country in a new, untested program. This is a new program. There is nothing in the current law that is comparable to this new guest worker program that we are talking about. The amendment I and my cosponsors are offering tries to restrict the size of the program until we find out how it is working, until we figure out whether this makes sense. Let's not build into the law automatic increases in a program we have never tested before. Let's not start this program at 400,000 and have it escalate up to 600,000. The amendment I am offering is trying to bring down the size of the program.

Another problem with the program is the structure, and I described that. This idea we are going to bring people in for 2 years, kick them out for 1 year, bring them in for 2 years, kick them out for 1 year, is not good for the employee, obviously. That is not good for the employer, obviously. It is not a realistic expectation. I think anyone would have to recognize that is not a good structure.

The third problem I have with the bill is there is no real avenue for any of these individuals we are talking about to ever gain legal status, so we are creating a group of workers who have come to this country and worked for 2 years or 4 years or 6 years, to whom then we are saying: Your time is up, go home. There is a tremendous likelihood that we are going to have a lot of people staying over and overstaying their visas. I think that is unfortunate.

That is a change from the previous legislation. We passed that bill Senator Kennedy brought to the Senate floor last year and I supported it. There was a much more realistic opportunity for people who came in under the guest worker program to pursue legal status at some time, so the incentive to essentially go underground to try to avoid deportation was not the same in that bill.

I think the most significant thing we can do at this point to try to correct the most significant problem with this guest worker program is to reduce the number. Let me show a couple of charts, for my colleagues to understand what we are talking about.

The current bill calls for 400,000. The first year this law is in effect, 400,000 are permitted to come in under this guest worker program. Then there is a complicated process if that total is reached. If there is a demand to bring in 400,000 during the first half of the year, then there is an automatic increase of 15 percent. So you bring in an additional 15 percent at that point, which is 60,000, so you are at 460,000. You start the next year at 460,000, but you add another 15 percent to that immediately, and if there is another demand, using up all of those, you can go up another 15 percent.

In any event, it rachets up pretty rapidly. It says if the 400,000 is not used up until the second half of the year, then there is only a 10-percent increase each year from then on.

What we have done on this chart--and I think people need to try to understand this--is we have tried to show with this graph how many so-called guest workers under this program--not under the other two, not under the ag workers program, not under the seasonal workers program but under this program--how many people we would actually have in the country as the bill is currently written. You would have 400,000 the first year; the second year you would have 840,000 because you would have the first 400,000, plus the second 400,000, plus the increase, 10 percent. You would have 924,000 the third year, you would have 1.4 million the fourth year, you would have 1,958,000 the fifth year, and this keeps going up so, by the eighth year, you would have 3,158,000 people in the country legally working under this program.

There is a very important assumption built into this chart. The assumption is that everybody who comes in under this program goes home when their visa says they ought to go home; nobody overstays his or her visa. If, in fact, that assumption is false and people get to the end of their 6 years and say: Wait a minute, I am not ready to leave the United States, I am staying, and they stay here on an undocumented basis at that point and overstay their visa, then they go on top of these numbers.

So you have a tremendous number of new people. This is a brandnew program. We have never had this program before. I think that is too large.

Let me show what the amendment I am offering does. I did not support Senator Dorgan's proposal to eliminate the guest worker program entirely. I think there is a legitimate argument that some number of guest workers is appropriate to bring into the country to do some of the work. But as I say, this is a brandnew program and we ought to do this in a judicious way and feel our way along. In this proposal that I have put forward, it says let's bring in 200,000 the first year and 200,000 each year after that and see how this goes. We can make judgments and we can alter this in future years. Congress meets every year, so we can alter this if we decide that is not the appropriate number. But let's start with a number that we think makes sense.

Even at that very substantial reduction, we would wind up in the eighth year with 1.2 million people in the country under this program, legally working as guest workers. It is not that there are going to be 200,000 people working here each year, there are going to be 1.2 million people working here each year. Again, the assumption is there will only be 1.2 million, assuming everyone goes home when their visa says they ought to go home, which I think is a fairly questionable assumption.

That is what the amendment does. I think it is a far better way for us to proceed than what the underlying bill calls for. I know there are some who are coming forward and arguing that this is terrible, that we are not going to have enough people to keep the economy running, that there are going to be all kinds of jobs going unfilled. I point out again that there are other ways people can come to our country and obtain employment. They can do so under the seasonal workers program, which is being increased very substantially under the bill. They can do so under the ag workers program, which has no limits on it at all. Of course, there are other ways that people can immigrate into our country that are provided for in the legislation as well.

This is an amendment that I think makes all the sense in the world. I was very pleased we had such strong support for it when we offered it in the previous debate that we had on immigration last year. I hope we can adopt it again this year. By doing so, I think we begin to bring a little more judiciousness to this process if we are going to start a brand new program.

Let me also point out there is provision in this legislation for a commission to be established to review how this new program is working and to make recommendations back to the Congress. I think that is entirely appropriate. To me, that is another reason why we should not be building in automatic escalators in the size of this program. We should not be starting with a program that is so large as 400,000 and going up to 600,000. We should start at 200,000 and keep it right there until we get those recommendations and find out what we think at that point about whether to increase the size of the program or terminate the program or whatever steps we might take at that point.

That is the basic gist of my argument. I hope colleagues will support the amendment. I think it is a meritorious amendment. I think it will improve the legislation substantially.

I yield the floor.

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Mr. BINGAMAN. I thank my colleague from Massachusetts and congratulate him on his leadership in getting us to this point in the debate. I do hope Members will support this amendment. We had 79 Senators support this amendment when it was offered last year. I hope we get a strong vote again this year. I think this is the prudent thing to do. It does not destroy the bill. It does allow for a guest worker program but a much more prudent one than would otherwise be the case.

I urge my colleagues to support the amendment.

I ask for the yeas and nays.

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The amendment is as follows:
(Purpose: To provide for minimum sentences for aliens who reenter the United States after removal)

Strike subsections (a) through (c) of section 276 of the Immigration and Nationality Act, as amended by section 207 of this Act, and insert the following:

``(a) Reentry After Removal.--Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned not less than 60 days and not more than 2 years.

``(b) Reentry of Criminal Offenders.--Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection--

``(1) was convicted for 3 or more misdemeanors or a felony before such removal or departure, the alien shall be fined under title 18, United States Code, and imprisoned not less than 1 year and not more than 10 years;

``(2) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, and imprisoned not less than 2 years and not more than 15 years;

``(3) was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, and imprisoned not less than 4 years and not more than 20 years;

``(4) was convicted for 3 felonies before such removal or departure, the alien shall be fined under such title, and imprisoned not less than 4 years and not more than 20 years; or

``(5) was convicted, before such removal or departure, for murder, rape, kidnaping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, and imprisoned not less than 5 years and not more than 20 years.

``(c) Reentry After Repeated Removal.--Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned not less than 2 years and not more than 10 years.''.

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Mr. BINGAMAN. Mr. President, I wish to speak briefly in opposition to the amendment. I have great respect for my colleague from South Carolina, but I think this is very misguided.

Chief Justice Rehnquist was speaking in 1994 to a luncheon of the U.S. Sentencing Commission and he said the following:

Mandatory minimums are frequently the result of floor amendments to demonstrate emphatically that legislators want to ``get tough on crime.'' Just as frequently they do not involve any careful consideration of the effect they might have on the sentencing guidelines as a whole. Indeed, it seems to me that one of the best arguments against any more mandatory minimums, and perhaps against some of those we already have, is that they frustrate the careful calibration of sentences, from one end of the spectrum to the other, which the sentencing guidelines were intended to accomplish.

I think Justice Rehnquist was right, that this is--this, as I understand it, is an amendment that has not been brought up for hearing. These proposed changes in the law have not been brought up for a hearing in the Judiciary Committee. I am not a member of that committee. My colleague Senator Kennedy is, of course, as is Senator Graham. But my impression is this is not the result of a careful deliberation by the committee of jurisdiction here in the Senate. Instead, this is one of these floor amendments that is intended to demonstrate that legislators want to ``get tough on crime'' and particularly want to get tough on crime if it involves immigrants. So that is what is going on here.

I think the strongest argument I know, and I am sure this is what the Senator from Massachusetts was mentioning, is the cost that is involved in actually going ahead with this amendment. We are talking about taking people, and instead of kicking them out of the country, we are requiring those individuals be incarcerated in this country at very substantial expense to the U.S. taxpayer for a very long period of time. I don't know that it makes good sense for us to be doing this.

One of the purposes of this immigration legislation that is before the Senate right now is to reduce the burden on U.S. taxpayers of all of the immigrants coming into the country. This amendment does the exact opposite. This amendment puts an enormous additional expense on the taxpayers of the United States by saying: If you come into this country illegally, we are going to lock you up and we are going to be sure you stay locked up for a long time. Well, that is fine, as long as you want to pay--what is it--$30,000, $40,000 per year to keep one of these individuals incarcerated. We are paying a lot more to keep an individual in one of these Federal prisons, I can tell you that, than we pay to keep people in some of our best universities.

I don't think it is a good use of our resources. I think this is one of these feel-good amendments which says we are not being tough enough on immigrants, let's tighten this thing up, let's be real tough on them.

The statistics I have--and these are statistics from the 2006 Source Book of Federal Sentencing Statistics, put out by the United States Sentencing Commission. They have a chart on page 13 where they talk about the distribution of offenders in each primary offense category. It shows that 24.5 percent of the offenders we are incarcerating today are being incarcerated for immigration-related offenses. The only other category that is larger is drugs, where 35.5 percent are being incarcerated for drug-related offenses. So 24.5 percent of our prisoners today are there because of Immigration-related offenses. That number is going to go up dramatically if we actually adopt and put into law these mandatory minimum sentences that are contained in this amendment.

I wish also to point out that the penalties, the sentences these people are being given and the actual period of incarceration, the number of months of incarceration for these immigration offenses, is fairly significant. It ranges from 22.8 months up to over 25 months. So we are talking about putting people in prison for a significant period of time. As I say, they are all for immigration-related offenses.

I think it is foolhardy for the United States to be passing immigration reform legislation to reduce the financial burden on U.S. taxpayers for all of the illegal immigration coming into the country and at the same time adopt an amendment that loads an enormous additional cost on to the taxpayer so we can keep these people in prison for a long time and thereby demonstrate we are getting tough on crime.

I urge my colleagues to oppose the amendment.

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