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S.744 Markup - 5/9/13 (Updated 5/14/13)

Cite as "AILA InfoNet Doc. No. 13050961 (posted May. 14, 2013)"

On 05/09/13 the Senate Judiciary Committee began markup on s. 744 and completed debate on Sections 1-8 (mainly dealing with the trigger for legalization) and Title I (border security). This page provides a summary of the committee debate and initial Senator statements. A total of 32 votes were taken today, with 21 amendments gaining majority support to be included in the bill. The full text of the amendments debated today are listen under "Related Resources" to the right. Chairman Leahy (D-VT) also issued a press release summarizing the events of the day.

AILA has also put together a chart listing all the amendments considered, the statement of purpose, and the result of the vote in committee. (AILA Doc. No. 13050961.)

Member Statements:

Sen. Grassley: The triggers in the bill that kick off legalization are weak. There are hundreds of provisions that grant waivers and discretion to DHS, like the health care bill. It's been 3 years since the health care bill. It's just not moving along. We can't let the same thing happen to this bill.

Sen. Schumer: The group of 8 of us, along with 4 of us that are on this committee, along with Senator Feinstein and Senator Hatch. We believe that it is sound, balanced, and sturdy ship. We believe we have taken all considerations into account. We believe we have a fair bill where everyone doesn't get everything they want.

What the bill does…The border will effectively be closed with these expenditures and policies. We will change our policy so that people who can help our economy grow can finally come into this country. And note that it is only humane when families are apart is to bring them back together. I will ask my colleagues if you don't agree with everything, we are open, please don't kill the best hope for immigration reform in this country.

Sen. Hatch: This markup is a start of a long process. The bill is hundreds of pages and hundreds of amendments has already been circulated. I commend the bipartisan group of senators from developing this bill. No one should expect a simple solution for a complex set of problems. I cannot speculate at this stage at the likelihood of success, but I will do my best to reach that goal.

Sen. Durbin: We are not only tasked with coming up with an immigration law for the 21st century, but also tasked with proving that the democratic process still works here on the Hill. Our bill is not perfect. There are millions of people across America who are counting on us, to give the same opportunity that our parents and grandparents had and to do it in a orderly and legal way.

Sen. Sessions: First, what do Americans believe about immigrations. Well, we believe in it. We're proud of being a nation of Americans... The bill was crafted in secret, with too little concern on the impact on struggling Americans. This legislation grants immediate amnesty and weakens enforcement. We were told there would be a fence, there is no fence. We were told there would be a biometric exit system, the bill undermines that requirement. The border security provisions weaken current law, turning 100% operational control to effective control on only 3 of the 9 sectors. We need to work hard on this legislation. The sponsors have set forth a vision that is attractive, but the legislation doesn't achieve that vision.

Sen. Klobuchar: Personal history coming from an immigrant coal miner from Slovakia. Immigrants have found Fortune 500 companies and are Nobel laureates. Immigration reform will have a positive impact on reducing debt over 10 years. Applaud the bipartisan work that has been done.

Sen. Cornyn: People come to America for many reasons, not everyone comes with good intentions. But a vast majority of immigrants, both legal and illegal, come because they want to make a better life for themselves. In Texas, we welcome hard-working people are willing to take a risk, to start a business. This is a debate about our most deeply held values. Our effort to fix to the broken immigration system has to begin at the border. But we can't just be at the border alone. 40% of those here illegally are visa overstays. We must provide employers with a verification system. The bill makes improvements, but there are areas that need to be improved even more, so I look forward to the robust discussion.

Sen. Lee: I support fundamental immigration reform. I believe we have an opportunity to make progress. We don't face just one big immigration problem, it is a complex puzzle with various interconnected pieces. Certain preliminary measures are a prerequisite for others. Until our border are actually secure and who has overstayed their visas. Good policy doesn't flow from massive bills that try to fix everything. Despite good intentions, the 1986 bills, may have made things worse. Serious immigration reform must be implemented in stages over the next few years. We're largely in agreement on essential elements. I believe in success in achieving the goals must come in a serious of incremental reforms starting with border security and an entry-exit system.

Sen. Cruz: I hope that what we are embarking on is a real markup. The majority has the votes on this committee to vote down every minority amendment. I hope the majority does not take this approach. That is not an approach that leads to passing a bill. I want common sense immigration reform to pass. I think the American people want it to pass, but they want it to pass in a way fixes the problem. I've introduced 3 types of amendments. The first, the bill has grave problems when it comes to border security. Currently, as it is drafted the bill is a plan to plan, which would render it a virtual certainty that we will have hearing later on why we still don't have border security. Second, I've introduced a pair of amendments on legal immigration, the best elements of the gang of eight's bill is the part addressing legal immigration. We need to remain a nation that embraces legal immigration. Third, means-tested public benefits will cause the bill to be voted down later on.

Sen. Flake: This is how the Senate should work. I'm pleased to be part of this process and to go through regular order as we are doing now. I believe we will end up with a better product than what we started with.

Sen. Blumenthal: My dad came to this country 17 years old. Everyone of us has a story. We are a nation of immigrants, and our diversity makes us strong. When I am down, I attend the immigration naturalization ceremonies that are held in my state. And I tell them, thank you for becoming an American, for wanting to become Americans. Because they want to add strength and value to the greatest nation.

As to reform, if not now, then when? Not for another generation. I hope that we can build on consensus. What we do here should be complete bipartisan, or nonpartisan. There is nothing Democratic or Republican about an immigrant coming to this country seeking freedom and the tremendous opportunity this country holds for each of them.

Sen. Hirono: Immigrants are human beings with families. There should be reform that reunites families.

Sen. Graham: There are a lot of good ideas offered. I'm told my dad's dad came from Scotland, and I'm trying to keep the family tradition alive by staying in politics. We all come from somewhere, but doesn't mean everyone can come whenever they want to. Senator Sessions and I agree, no American worker should be displaced. We're not being run by Canadians because that is a stable country with a stable economy.

Sen. Feinstein: For many of us sitting at this table, this is going to be our only chance for reforming our immigration system. Senator Kyl and I worked for years to get full funding for SCAAP funding. Over the years the federal participation has dropped.

10:56am SSponsors' Amendment considered and agreed to by a vote 14-4

10:57am Sen. Leahy proposes 11 amendments to be voted as one package:

  • Leahy 1 (prohibits border crossing fees at land ports of entry)
  • Grassley 2 (provides that DHS must submit several border related and other reports to various Senate and House committees)
  • Grassley 5 (Requires yearly audits of the Trust Fund)
  • Cornyn 6 (Includes the "Human Trafficking Reporting Act of 2013")
  • Sessions 36 (Expands DHS Ombudsman to provide assistance to those who have been victims of crimes committed by aliens or border violence)
  • Flake 1 (Includes private land representatives on the Department of Homeland Security Border Oversight Task Force)
  • Flake 2 (Requires the GAO to prepare an annual assessment of the status and progress of the Southern Border Security Strategy)
  • Feinstein 6 (Requires DHS to establish standards to ensure humane conditions for children in the CBP custody)
  • Feinstein 7 (Requires allocations to law enforcement agencies for Operation Stonegarden be allocated through a competitive grant process.
  • Feinstein 8 (Requires CBP "to acquire and deploy watercraft to provide support for border-related maritime anti-crime activities")
  • Hirono 24 (Creates a new Ombudsman office in DHS)

11:11am The 11 amendments are passed by voice vote.

11:12am - Amendment Grassley 4 up for consideration. The amendment will prohibit the granting of RPI status until the Secretary has maintained effective control of the borders for 6 months and to apply border security strategies to all border sectors.

Sen. Feinstein expresses concerns on the delay of the legalization process.

Sen. Flake: We've got to bring them out of the shadows. It would not be a good move to wait on that process. We've got to know who they are. It would be the wrong approach to delay bringing people out of the shadows.

Sen. Cornyn: California's border is different than Texas, Arizona's is different than Texas. On a day in the Rio Grande Valley, 700 people coming across the border were detained, 400 were from Central America. We've got to get this right. To Senator Flake's points, in 1996, we passed a law that said we had to have an entry-exit system, and that still hasn't come to pass. In the GAO in 2011, less than 45% of the Southern border was under operational control. DHS in response suspended that measure. There is no border security trigger in the bill, and Senator Grassley's Amendment will include a trigger.

Sen. Schumer: The problem with the amendment, changes "substantial" to "fully operational." What if one radar, or three, was broken? What we have learned is that the border is vast. The thing about operational control, is having a person at every location. In many places, the thing that will be the most effective is air, air patrol, even drones. In other areas, fences, others personnel. This amendment would set a standard that would basically delay, probably forever, any legalization and bringing people out of the shadows, and demands too much one size fits all.

Sen. Sessions: The bill doesn't require any fencing. And we need to do that.

Sen. Durbin cites MPI study showing that U.S. spends more money on border enforcement than other federal law enforcement.

Sen. Graham: We have a Canadian border. There are 11 million people coming through the Southern border because we they want a job. So it seems to me, if we can control who gets a job, we can fix the problem. If you can get a job, you can't build a fence high enough to keep people out.

12:04 pm- Amendment Grassley 4 fails by a vote of 6-12

12:05pm- Amendment Schumer 2 up for consideration. The amendment will modify how the trust funds will be funded and the allocation of those funds, including the repayment of the start-up costs for the bill and other programs.

Sen. Grassley: It looks at $800 million to Startup cost. Would this increase the costs of the bill?

Sen. Schumer: It simply sets up a pot of money early to have the funds available up front. It does not increase the cost. It starts a way of getting the bill going. It is emergency spending, it was the only way to do this.

Sen. Grassley: What are the cost estimates based on? Has the Department shared figures that justify this estimates?

Sen. Schumer: We consulted OMB, DHS, and outside authorities

Sen. Grassley: Why does the amendment include $750 million for the E-Verify program.

Sen. Schumer: We'd like to get E-Verify up and running as soon as possible.

Sen. Grassley: We have a voluntary program now.

Sen. Schumer: What we're doing is to have a card that is currently forgeable is to have a photo component.

Sen. Sessions: But you have the language that this will be eventually paid for. But if you don't know how many will be coming in, how do you know how much money will be coming in?

Sen. Schumer: It will pay for: increased border security, mandatory E-Verify, mandatory exit-entry system

Sen. Sessions: I'm willing to consider a budget waiver. I think something like this is critical. I don't fundamentally oppose your approach. I will support Sen. Grassley.

12:13pm- Amendment Schumer 2 passes by a vote of 14-4.

12:15pm- Amendment Lee 4 up for consideration. The amendment requires as a trigger for the adjustment of status from RPI to LPR status, congressional approval and President's signature of the Secretary's certification of the implementation and substantial operation of the border security strategies.

Sen. Grassley: We're not going to shrug off our Constitutional duties. And this brings it back home, that Congress ought to make the final decision on whether the border is secure.

Sen. Leahy: The compromises worked out on both sides are reasonable one.

Sen. Graham: Having elected officials who have to answer to people to answer yes, we believe the border is secure or no. This makes sense if there had been no history here. I guarantee that our Democratic friends are going to say the border is secure, and our House Republicans are going to say no. This is how it's going to break out in the votes. What we've tried to do here is to try to create metrics on the border security. The problem I have is that we don't have a full picture of the border, and we're about to get one. As I've said before, E-Verify is the virtual fence. Controlling the job is the goal for me. I'm just afraid that given the politics of the border, we're going to have a partisan vote every time.

12:25pm- Amendment Lee 4 fails by a vote of 6-12.

12:26pm- Amendment Grassley 1 up for consideration. The bill expands border security strategies to all border sectors in the Southern border. The current bill targets the "high-risk" sectors.

12:27pm- Amendment Grassley 1 passes by a voice vote.

12:28pm- Amendment Grassley 24 up for consideration. The amendment establishes audit requirements for DHS, NSF, FEMA grant recipients.

Sen. Schumer: This is a good amendment and improves the bill.

12:30pm- Amendment Grassley 24 passes by a voice vote.

1:45pm- Amendment Feinstein 9 up for consideration. The amendment would expand state and local costs related to immigration-related criminal prosecution that could be reimbursed by the Federal Government.

Sen. Leahy: I have no concerns with the amendment.

Sen. Grassley: I think it raises some questions as to the total cost of the bill. This amendment would have to fund both sides of the state court costs. It could double, triple the costs.

Sen. Feinstein: These costs are now covered. It would simply add these areas to the list of areas that can be covered. The point is that they are reimbursed now.

Sen. Grassley: My point is that there is absolutely no limit.

Sen. Cornyn: I am happy to co-sponsor this amendment. This is really needed to make sure that local law enforcement can supplement the efforts of the federal law enforcement.

Sen. Sessions: I would love to know a little more about the costs. Is there already an existing fund. I would be dubious about taking funds from our limited funds.

Sen. Cornyn: There's already a fund in the underlying bill. This only makes these categories eligible for the funding.

1:53pm- Amendment Feinstein 9 passes by voice vote.

1:54pm- Amendment Sessions 37 up for consideration. The amendment would strike out the provisions requiring DHS to issue policies governing the use of force by DHS personnel.

Sen. Sessions expresses concern that agencies have differing policies and this would create confusion. Sen. Leahy: The Secretary will be issuing the policy, not the civil rights division. Sen. Sessions: I don't think it provides protection, I think it muddles the two divisions. I think there should be more clarity in the divisions and responsibilities for law enforcement.

1:58pm- Amendment Sessions 37 fails by a vote of 7-11.

1:59pm- Amendment Coons 2 up for consideration. The amendment would require DHS to certify that it won't remove someone through a southern border point in a dangerous location unless justified by compelling government interest.

Sen. Cornyn: Would this prohibit the transfer of the UACs?

Sen. Coons: I don't believe it would, because it is not an intentional effort to break up families and to deport individuals hundreds of miles away at night.

Sen. Cornyn: Why would the border patrol do that?

Sen. Coons: It is an intentional policy that would make it more risky to enter the United States. The reality I think is there are coyotes are everywhere on the border, and it makes migrants more likely at risk where they have no contacts/resources, making them more vulnerable to be preyed upon by coyotes.

2:06pm- Sen. Coons agrees to work with Sen. Flake. Amendment Coons 2 withdrawn.

2:33pm- Amendment Blumenthal 10 up for consideration. The amendment would allow DOJ to deny reimbursements to state and local governments for immigration-related prosecution/detention costs if the underlying apprehension was from unlawful conduct by a law enforcement officer.

Sen. Coons: The federal government could decline prosecution, but doesn't mean that they could decline reimbursement to the state and local government. In no way would local authorities would be precluded from going forward with the prosecution.

Sen. Sessions: Local authorizes cannot prosecution for federal crime, they can detain for relatively short amount of time. If there is a joint operation, somewhere down the line, after a lot of time has been spent, a judge rules that an arrest has been proper. I'm a little uneasy about mandating this.

Sen. Coons: In those cases where the Federal government declines, if you think the amendment needs to be limited to cases where the claim has been investigated.

Sen. Sessions: I'm concerned about the standard "reasonable cause to believe"

Sen. Coons: That is the language that is used in prosecutorial decision. It is not a standardless term. I think we can further define it if you like. I agree, the Attorney General should not have unbridled discretion.

Sen. Sessions: This DOJ has been very hostile to local jurisdictions.

2:41pm- Amendment Blumenthal 10 passed by a voice vote.

2:42pm- Amendment Cruz 1 up for consideration. The amendment will amend the border security sections of the bill to triple border patrol agents, quadruple technology and infrastructure, complete the fence, complete biometric entry-exit system, 100% operational control, and tougher legalization triggers.

Sen. Sessions: Sen. Cruz goes right to the heart of the matter. There are several fatal flaws in the bill that I believe will prevent this bill from becoming law, and this amendment fixes two of them. One of them is the entry-exit system. Secondly, the triggers in the legislation do not work, they do not have teeth. They do not give us confidence that the border enforcement in the bill will ever happen. And Senator Cruz has a multiple number of ways to do it.

Sen. Flake: We recognize that we need additional resources in the border. We add in the legislation 3500 new customs agents. What we're talking about here is tripling Border Patrol, going from around 20,000 to 60,000. It will take about 10 years for training and to deploy the resources. So you're talking about another 10 years before we can bring people out of the shadows.

Sen. Schumer: We all want to strengthen the border. Our bill does that better than any other bill, but it does it in a smart way. All of the technological advances can really help secure the border. And, how are we going to pay for this? While we're making a real effort to keep the budget down, and keeping this deficit neutral, this would blow it out of the water. I dislike illegal immigration. But let's do it in a smart way, in a way that is cost-effective, that doesn't blow a hole in our budget, and let's let the experts decide what they need.

2:58pm- Amendment Cruz 1 fails by a vote of 5-13.

2:58pm- Amendment Hirono 23 up for consideration. The amendment would ensure that the humanitarian needs of children of those who are being repatriated/referred to prosecution are being considered, as well as the physical safety of the individual who is apprehended.

Sen. Grassley: This is similar to Sen. Franken's amendment, which I cosponsored. Sen. Hirono's amendment differs in that it focuses on those who are detained or facing prosecution at the border. The amendment also goes further by requiring that border patrol agents to assess the humanitarian considerations of those apprehended. It appears to tie the hands of agents whose responsibility is to apprehend and detain. Weakening the authority of Border Patrol is a slippery slope.

Sen. Feinstein: I have a concern about this. Somebody apprehended at the border, the border officer has 2 hours to make this assessment, and all the multiplicity of language and confusion, I don't think it can be done in 2 hours.

Sen. Hirono: I use the language, "as soon as practicable." I do believe that there be some parameters.

Sen. Feinstein: Then you end up with a legal case if it's 2 hours and 15 minutes and you don't want that.

Sen. Hirono: How about 4 hours. Sen. Franken's amendment requires a 4 hour timeframe in a similar situations.

Sen. Cornyn: Under the current version I'd have to vote against it, but possibly we can work with it.

Sen. Whitehouse: I can imagine 40 people being arrested in a group, and a small number of border patrol agents, and they have to assess.

Sen. Hirono: I do hear my colleague's concerns. I do believe "as soon as practicable" does provide parameters with some flexibility. Move to strike the maximum 2 hour requirement.

Sen. Grassley: It doesn't address the underlying amendment.

Sen. Cornyn: In some sectors of the border, there are not adequate detention facilities. Would it be your intention, if there weren't detention facilities where they were detained, for children and women, that they couldn't be separated?

Sen. Hirono: If there are physical limitations, it is what it is. But where we can be, let's be human as possible.

Sen. Grassley: I have two questions. Explain repatriation. And two, border patrol agents in a number of hours will assess repatriation?

Sen. Hirono: The border patrol agents will ask questions. Do you have children. This does not prevent DHS from ultimately repatriating. We're simply saying ask these questions.

3:13pm- Amendment Hirono 23 passes by a vote of 10-8.

3:14pm- Sen. Sessions withdraws Amendment Sessions 38.

3:15pm- Amendment Feinstein 11 up for consideration. Offers up a substitute to her amendment.

Sen. Cornyn: Not all of the border is the same.

Sen. Feinstein: I've come to believe that the technology in these drones is growing so extensively beyond our ability to manage how they are used, privacy concerns and surveillance. Their ability to see from great distances is extraordinary. You have major airport, do you want drones flying in those areas, I don't. In California, you have millions of people within the 100 miles.

Sen. Feinstein agrees to hold the amendment. Amendment Feinstein 11 withdrawn.

3:22pm- Amendment Feinstein 1 up for consideration. The amendment would extend SCAAP funding.

Sen. Cornyn: This is obviously an important issue in my state. Sen. Sessions: One thing that's been a serious problem for me is that a number of cities have been failing to cooperate with immigration officials in arresting illegal aliens. Sanctuary cities. It seems to me that this is not a city we need to reimburse. Would the Senator consider exempting sanctuary cities.

Sen. Leahy: I'm also concerned that someone can game the system. I have a real problem with this.

Sen. Cornyn: As to Sen. Sessions, I don't think these places seeking reimbursement would meet the definition of sanctuary cities. I would just say that change is not necessary.

Sen. Sessions: I don't think the Senator from Texas would say let's rei mburse states, counties that would refuse to detain. I think there needs to be a stronger statement that they are not going to be reimbursed.

3:29pm- Amendment Feinstein 1 passes by a vote 10-8.

3:32pm- Amendment Feinstein 10 up for consideration. The amendment would establish a grant to "improve the transportation infrastructure at existing and new international border crossings."

3:33pm- Amendment Feinstein 10 passes by voice vote.

3:34pm- Amendment Leahy 4 up for consideration. The amendment would provide DHS flexibility in how the funding in the bill is used to implement the border security strategies.

Sen. Schumer: This gives DHS the flexibility to do what they need in different places.

Sen. Sessions: We certainly want discretion in fencing. Not every area needs a fence. I know there are some good points in this amendment, but I believe it goes to far.

3:40pm- Amendment Leahy 4 passes by a voice vote.

3:41pm- Amendment Sessions 9 up for consideration. The amendment would establish as a trigger the completion of 700 miles of double-layer fencing as passed by the Secure Fence Act of 2006.

Sen. Hatch: have you estimated how much this would cost? And how would we pay for it? Sen. Sessions: It would cost as much as $6 billion. We'll have to get that money from somewhere. And I think it would reduce the number of officer needed significantly.

Sen. Schumer: In many places, all the land is owned privately right up to the border. So you'll have to go in with eminent domain. So that's going to take a long time. Also, in Arizona, there is a large Indian reservation and you can't build a fence there. And the cost, it would take funds from what we have already designated for other more efficacious purposes. And my guess is that it would take at the earliest 8, 10 years for the whole 700 miles. Until then, no RPI, no people coming out of the shadow, no one working.

Sen. Sessions: Real fencing reduces personnel needs. Whatever really works never gets passed. We do the E-Verify, if we complete that, that will work, and I give you credit for that.

3:53pm- Amendment Sessions 9 fails by a vote of 6-12.

3:56pm- Amendment Cornyn 1 up for consideration. The amendment would modify all the border security provisions in the bill, including tougher triggers for adjustment of status for RPIs to LPR status.

Sen. Schumer: This amendment has 3 fundamental flaws. It adds border patrol agents without specifying where the funds will come from. Second, it sets different triggers. Also, it has the GAO approving the trigger. Every time a trigger has been put together where the GAO makes the determination, it has been unconstitutional. Finally, he demands a 90% effectiveness rate at every sector.

Sen. Graham: The layered approach satisfies me. Plans don't matter unless they are implemented, and they have to be substantially completed, that's no small task. The key to me is not 2200 miles of fence, it's not 90% effectiveness rate, it's the stopping of the jobs, E-Verify. I am signing up to this bill believing that what we have put in to stop the third wave of illegal immigration.

Sen. Cornyn: What we're talking about is organized criminals, criminal enterprises that can only caught by border security, not E-Verify.

4:28pm- Amendment Cornyn 1 fails by a vote of 6-12.

4:29pm- Amendment Feinstein 2 up for consideration. The amendment will provide for additional permanent district court judgeships in the southwest border states. Sen. Grassley offers a 2nd degree to provide whistleblower protection to judicial branch employees. Sen. Feinstein agrees to modification. Sen. Whitehouse: I would like to at some point talk about getting some names in for the vacant seats. There are vacancies in district courts where there haven't been filled for years.

Sen. Cornyn: The President must nominate someone before the Senate can act on it.

4:38pm- Amendment Feinstein 2 passes by a voice vote.

4:43pm- Amendment Sessions 11 up for consideration. The amendment modifies border security strategy and the border triggers, changes the border security goal to 100% operational control.

4:48pm- Amendment Sessions 11 fails by a vote of 6-12.

4:50pm- Amendment Cornyn 2 up for consideration. The amendment would authorize DHS to hire 5,000 new full-time CBP officers and 350 support staff to staff ports of entry. It also allows for private-public partnerships to help with funding.

Sen. Feinstein: Unofficial OMB score is $14 billion.

Sen. Cornyn: The dynamic score that the CBO will do will offset due to the economic benefits.

Sen. Schumer: It's a bit more than we can afford. If you can lower the cost, would have to keep working on it.

Sen. Sessions: I would like to offer a 2nd degree on it. We only have 5,000 ICE agents in the interior.

5:02pm- Sen. Cornyn withdraws Amendment Cornyn 2. The Sessions 2nd degree is also withdrawn.

Sen. Leahy: We've had 32 amendments today, and have adopted 21 amendments, 20 of which were adopted by a bipartisan vote. Title I is now closed. The Committee will stand in recess until 10 o'clock on Tuesday.

 
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