S.744 Markup- 5/20/13 (Updated 5/30/13)

On 05/20/13 the Senate Judiciary Committee held Day Four of the markup on S. 744. The committee finished debating Title III of the bill pertaining to interior enforcement and moved to Title II, legalization and the immigration system. In total the committee passed 30 amendments, out of a total 50 amendments considered (although some of those were withdrawn with no actual votes). This was by the far the most contentious day of markup to date with five amendments offered by Sen. Grassley (R-IA), two by Sen. Sessions (R-AL) and one by Sen. Cornyn (R-TX) failing on strictly party line votes (8-10). Four amendments were defeated when the two Republican members of the "Gang of Eight" joined the ten Democrats on the committee in voting no--three dealt with limiting eligibility for RPI status and one with the one year asylum filing deadline. All that being said, 25 amendments, offered by both sides of the aisle, passed on voice votes.

The committee spent part of the day debating protections for asylees and refugees, including passing an amendment requiring background checks on all seekers and an amendment providing work authorization within 180 days of filing. Sen. Grassley ultimately withdrew his amendment to strike the provision eliminating the one year filing deadline for asylum seekers after Sen Feinstein (D-CA) indicated willingness to further negotiate the issue.

S.744 already includes many tough provisions on crimes, inadmissibiity, deportability and RPI exclusion grounds (see an AILA roundup of all such provisions). And today, the committee struck down many amendments to increase these already tough provisions, albeit on very close votes. However Grassley #44, making a 3rd drunk driving conviction an aggravated felony, passed on a 17-1 vote. In addition, Graham #3, which requires additional security screening for certain immigrants who live in regions that may pose a terrorist threat to the United States, passed on a voice vote.

In other amendment news Hirono #21, making DREAMers eligible for federal financial aid and Hirono #12, allowing RPI applicants to pay in installments, both passed on voice votes.

AILA has compiled a chart listing all the amendments offered during the 4th day of mark-up, the statement of purpose and the result of the vote in committee. In addition, the full text of all amendments can be found under "Related Resources" to the right.

AILA Positions on Selected Title II Amendments. (AILA Doc. No. 13051447.)

Markup Begins

10:10 am Sen. Leahy (D-VT) thanks the Senators for their cooperation, and hopes to finish Title III today and to move to Title II on Tuesday and Wednesday. The schedule is break for lunch 12:30-1:30pm and break for floor votes from 5pm-6pm.

Sen. Grassley (R-IA) asks three questions on Section 3405 on Stateless persons.

    1. Does the administration support this provision?
    2. How many of the 12 million stateless persons in the world are going to be eligible?
    Sen. Durbin A:It is my understand that the number will be included in the cap
    3. Who would be designated under this section?

Sen. Durbin A:We have strong measures under the bill. USCIS has confirmed this, and has gone through the provisions and to say that there are no exceptions. We have added to the security requirements for the category.

Sen. Grassley: Section 3403 allows LPRs to a entire classes of aliens who are classified as aliens. Currently, refugees undergo specialized and indivudal assessment. It seems to imply that the current system where we bring in 75,000 per year is not adequate

Sen. Durbin: Every person has to go through the assessment. Based on Sen. Lautenberg’s amendment to a previous bill, instead of proving in every case, we can accept a premise. Going back to history, if you were a Jew discriminated in the Soviet Union, or a Coptic Christian in Egypt, we’re going to accept the premise that there are certain known examples of discrimination. Still,every single person is subject to extensive security checks.

Sen. Grassley: This involves new judges, attrneys, and support staff. The bill mandates the hiring of at least 75 immigration court judges as well as one staff attorney/law clerk per immigration judge. As well as up to 30 staff attorneys. The bill provides for no discretion. The reality is we don't know if the immigration court case will increase or decrease. Why is this mandatory instead of a authorization based on needs? Second, shouldn't there be a study to see the true needs

Sen. Durbin: I want you to consider what we're facing now. There are currently 259 immigration judges in 58diffeent locations. 186,000 cases are pending as of end of 2008. By 2012, it was 326,000, a 75% increase in just 4 years. Average processing times for cases is about 4 months where the individual is detained and more than 3 years when the individual is not detained. It costs us over a $100 a day, so if we slow down the court process, we're building up the backlog in detention. Criminal backgrounds, when we're applying for a 10 year RPI status, there's going to be some resolution for that, and we need to make sure it's done on a timely bases.

Sen. Grassley: since we're legalizing so many, wouldn't the caseload go down?

Sen. Durbin: I can't tell you how many were here before Dec 31, 2011. Some may choose to go back and wait the 10 years in the country of origin. So we can't predict with certainty, but with some reliability.

Sen. Grassley: the bill requires counsel for UACs and mentally incompetent and the particularly vulnerable. And give Secretary discretion to appoint counsel to others. Even thought the provision in bill that funding will be from CIR trust fund. Immigration law have always given immigrants the right to obtain counsel but not at the taxpayer's expense.

Sen. Durbin: I've visited one of this detention centers in Illinois. And I asked about the 40-50 men in this room if any had an attorney, and none of them had. We believe the Secretary has the authority now.

Sen. Durbin: (In response to question to Sen. Grassley on BIA decisions) In your Amendment 42- you strike a measure that would require BIA to issue a written opinion. It will codify existing practices.

Sen. Grassley: what would allow the states to control their own borders when the federal government doesn't.

Sen. Durbin: the failing for the immigration system is the most compelling argument for this bill. What you raise is a fundamental constitutional questions, with the Arizona statute. We don't try to resolve that in this law, we try to have a system that works. If the comprehensive plan doesn't achieve, the states paly a greater role. We're going to work with the states, with the governors.

Sen. Grassley: does this bill do anything to enhance cooperation with states and federal government

Sen. Durbin: yes. We provide substantial amounts of money, billions of dollars, to do so.

Sen. Schumer: the American people want security at the border. If Americans will be sure that there won't be future waves and the border is safe, there will be fair and common sense legalization. This bill is the most robust attempt for the federal government to do their job at the border that we have ever seen. We have a failsafe. If after 5 years, much border money that has been spent in the past, the sates, led by state0elected officials will come in and make their recommendations. We do have states working with federal dollars if the federal government fails.

Sen. Sessions: ICE officials. "on the subjects of public safety, border security, and interior enforcement, this bill fails" The USCIS council also release a press release today. They were not consulted. 744 will damage public safety and should be opposed by the lawmakers. I don't know who you were meeting with, but these officers are not in support. I would suggest that this bill has so many opportunity to expand litigation, it has the possibility to totally gum up the system. Have you studied how much more litigation this bill will drum up?

Sen. Leahy: there has been no other major piece of legislation since I've been here where there has been so much transparency.

Sen. Durbin: I think so many of these same issues will come back through the amendments. We did consult with law enforcement. There have been 1.4 million people deported by this administration, this administration has not been ignoring the law. I find it very difficult to argue that this bill is weak on enforcement. We are literally investing billions of dollars on border security.

Amendment Leahy 3 is up for consideration. The amendment authorizes employment for immigrant victims of crime no later than 180 days after filing a petition.

Sen. Leahy: Currently it's about 18 months. The problem with taking too long, is that the victims can't feed their children. Does the victim continue to live in a violent home or on the street? Everyone we talked to in law enforcement said that this is an untenable situation.

Sen. Grassley: The amendment says, once an immigration applies for a status as a T, U, or VAWA self-petition, the Secretary shall grant employment authorization Does that mean that the DHS fails to act within 180days, the immigrant is automatically entitled to work even though later the petition is found to be fraudulent.

Sen. Leahy: Yes, it is. The authorization is temporary, and if we find evidence later that there is fraud, though we have not found fraud in this area, the bureaucracy can handle it in that time. this is to put some requirement for the bureaucracy to work quickly. If there is found to be fraud, it is quickly withdrawn.

Sen. Grassley: what is the VAWA petition is not approved?

Sen. Leahy: then they lose the authorization.

Sen. Grassley: How many would be expected to apply?

Sen. Leahy: Abuse continues, how many abused people are out there, I don't know the answer to that. Certainly, law enforcement doesn't.

Amendment Leahy 3 passed by voice vote.

Amendment Grassley 27 up for consideration. The amendment strikes provisions in the bill that removes the 1-year asylum filing deadline.

Sen. Grassley: We're not doing enough to reduce fraud. The bill would allow aliens to seek asylum no matter how long they have been in the States.
Sen. Durbin: first is the 1-year bar, the second is the frivolous claims. There are approximately 40,000 people who are granted asylum this year. And each of those have to go through extensive security checks. And nothing in our bill waives those security checks. Many people who are eligible for asylum don't realize it. They come to the United States, they are sometimes traumatized and they might not understand the process and standards. The immigration judges tell us that instead of getting to the merits of the claim, they spend their time talking about whether 1 year has passed. It creates an artificial barrier. Second issue, on the frivolous claim, I think you make a good point, can we work together on a bipartisan basis, that if they have been found to have filed a frivolous claim, that they cannot be eligible for RPI status.
Sen. Feinstein: I would have some concern from going from 1 year to nothing. It seems to me that if you want to go from 1 year to 5 years or 2.5 years, I would be okay with that. Sen. Durbin: I would be open to that, to something that is reasonable.
Sen. Grassley: I'll withhold for now.

Amendment Grassley 27 withdrawn.

Amendment Hatch 7 is up for consideration. The amendment would sunset the Ameriasian Homecoming Act.

Amendment Hatch 7 passes by a voice vote.

Amendment Feinstein 3 is up for consideration. The amendment would make 5000 visas over 3 years available to Tibetan refugees who were displaced to India or Nepal.

Sen. Grassley: this can go by voice vote, but I do have some questions. On this issue, I don't mind irritating China. First of all, we generally have people resettle here, because they have nowhere else to go. If they've been resettled in India or Nepal, why this amendment?
Sen. Feinstein: in Nepal, the government has been essentially following Chinese mandates to make it very difficult for the Tibetan refugee committee. In the last 10 years it has picked up. In India, and other places they are, the settlements are over 50 years old. I have tried since 1991 when I delivered the letter to Dalai Lama to China, I have tried decade after decade and the response has been a tightening of the Tibetan population.
Sen. Grassley: It's not clear to me if spouses and children are counted against the 5000 cap.
Sen. Feinstein: They are not.
Sen. Grassley: I hope you would work with me on some reporting requirement, so that after the sunset, there would be some reason for reauthorization.

Amendment Feinstein 3 passes by a voice vote.

Amendment Graham 2 is up for consideration. This amendment to be considered has been amendment by Graham 2nd degree.

Sen. Graham: This would create an integrated database to share with Customs folk and ICE, national security agencies, expanding the group of people who have access to the intel. It also expands the requirement to not only just follow these people, but to actually locate and to commence removal proceedings when reasonably available resources exist.
Sen. Sessions: This amendment is in the step in the right direction, and I support it.Amendment Graham 2 passes by a voice vote.

Amendment Klobuchar 2 is up for consideration. The amendment would add the crime of elder abuse to the list of covered crimes for U visas.

Amendment Kobluchar 2 passes by a voice vote.

Amendment Sessions 31 is up for consideration. The amendment would restrict earned income tax credit to citizens and lawfully permanent residents.

Sen. Sessions: I believe this is consistent to the idea that those who entered to this country illegally will not be eligible
Sen. Schumer: Illegal immigrants are not eligible for EITC. Let's be clear about that. Our bill does not change that. But what about those who have RPI status? They are paying into the system. It's a value choice. This amendment has a fatal flaw, it would not only deny RPIs EITC, but also blue cards, refugees, asylees, legal immigrants who have never been here illegally.
Sen. Sessions: If the law currently denies EITC, what's wrong with clarifying it?
Sen. Schumer: This goes beyond current law. This gets people who are perfectly legal.
Sen. Hirono: We are particularly going to be harming U.S. citizen children who have parents who have RPI status.

Amendment Sessions 31 fails on a vote of 8-10.

Amendment Franken 8 is up for consideration. The amendment would transfer from HHS to DOJ the child counsel and the child advocate programs.

Amendment Franken 8 passes by a voice vote.

Amendment Graham 1 is up for consideration. The amendment would terminate asylee and refugee status for individuals who returns to the country from which they sought protection from persecution. It also gives the Secretary (in 2nd degree: and Attorney General) discretion to waive termination for good cause.

Sen. Sessions: Does it require the Secretary?
Sen. Graham: It does require.
Sen. Durbin: The critical phrase "good cause." Some of the examples, to attend a funeral
Sen. Graham: Yes, that would be a good cause
Sen. Durbin: What about to recover documents or to retrieve property?
Sen. Graham: The Secretary/Attorney General would make determinations
Sen. Graham: If the underlying situation in the country changed, I don't know if there would be good cause.
Sen. Leahy: We may not micromanaging, DHS is scrutinizing travel anyway. There is no way we can sit here as committee and tell what every single issue is.
Sen. Graham: I think given what has happened in Boston, if you go back and we don't know what you did, we need to take a long hard look to make sure that this status is going to people who deserve it.

Amendment Graham 1 passes by a voice vote.

Amendment Coons 5 is up for consideration. The amendment requires that DHS provide persons in removal proceedings with complete copies of their files (except for documents protected from disclosure).

Sen. Sessions: I'm very concerned about this amendment. We deported hundreds of thousands, millions at our borders. Is this saying that this has to stop the deportation process until every document is obtained?
Sen. Coons: It would not include those who are returned without proceedings. It only applies to deportation proceedings.
Sen. Sessions: I just think this would give any guarantee that they could slow the proceedings down.
Sen. Coons: These are documents that DHS are already obligated to provide according to a 9th Circuit decisions. This is limited to documents that would be in the jacket of the file of the DHS official.
Sen. Sessions: This means that lawyers of those in deportation proceedings have a basis for a trial. Who knows what may happen.
Sen. Whitehouse: At what point are the obligations triggered? Is it one that confers rights on the individuals that they could go to court and assert a violation of some kind? Does it create a right of action?
Sen. Coons: At beginning of the proceedings. You would have to be in removal proceedings.
Sen. Whitehouse: What kicks of the immigration court proceedings?
Sen. Whitehouse: Does it create a private right of action?
Sen. Coons: My attorneys assert no.
Sen. Feinstein: This affects anything not confidential.
Sen. Coons: It is limited to documents that is in DHS' possession.

Amendment Coons 5 passes by voice vote.

Amendment Hatch 6 is up for consideration. The amendment establishes a biometric entry-exit system gradually in air and sea ports. The Schumer 2nd degree assures that the report from DHS is timely.

Sen. Schumer: I think it is a very good and responsible proposal. It mandates biometric system at our largest airports. It's a good start.
Sen. Feinstein: This is a great amendment. And in view, the biometric field is the field of the future.
Sen. Leahy: Is there any way this would be applied to U.S. citizens?
Sen. Schumer: No, they will not be fingerprinted, not under the purview of this amendment.
Sen. Sessions: We talked a good bit about this, because it's so important. Number one, we fingerprint people before they come into the system, and we don't read it when they leave. Senator Hatch's amendment makes some process. The system as current law requires should be at land, sea, and air ports.

Amendment Hatch 6 passes by a vote of 13-5.

Amendment Feinstein 4 is up for consideration. The amendment requires background checks before refugees and asylees may be granted relief.

Sen. Feinstein: This amendment essentially codifies existing security checks.
Sen. Grassley: I support this amendment. In the underlying bill, the bill allows the Secretary to waive the inadmissibility ground for failing to comply with a request for biometrics. I don't believe the Secretary should be able to waive, and I hope that further down, we can work together.

Amendment Feinstein 4 passes by a voice vote.

1:57 pm Amendment Coons 8 is up for consideration. The amendment would decouple the asylum clock used by DHS for determining work authorization eligibility from the clock used by EOIR for court-efficiency metrics.

Amendment Coons 8 passes by a voice vote.

Amendment Grassley 52 is up for consideration. The amendment would prohibit three sections of the bill relating to asylum and student visas from going into effect until one year after the Director of National Intelligence submits a report to Congress regarding the Boston Marathon bombings.

Sen. Feinstein: I agree with much of what Sen. Grassley said, but this amendment essentially prevent changes to the asylum and student visa system from going into effect until a year after the submission of a wholly unrelated report.
Sen. Leahy: What happened in Boston is a law enforcement matter. I'm more interested in the questions of did the FBI give proper information to the Boston authorities.
Sen. Schumer: We certainly want to tighten up the bill in any way that we can. Last week we accepted Grassley and Sessions amendments on visa security. This amendment doesn't provide a solution.
Sen. Grassley: I would ask my colleagues to think in terms of whether we want to learn from the mistakes or the loopholes. It seems to me that we're showing by not going along with an amendment like this that we're just ignoring our mistakes.

Amendment Grassley 52 fails by voice vote.

Amendment Grassley 49 is up for consideration. The amendment would allow federal law enforcement officers to take into account an individual's country of origin.

Sen. Grassley: Current law allows the federal government to utilize the country of origin to deny entry into this country. My amendment states that profiling based on country of origin is not banned by a ban on racial profiling. It simply states that nothing in the bill prohibits it.
Sen. Durbin: We specifically do not mention country of origin in this bill. We do not raise that issue.
Sen. Grassley: Why then don't you mention it?
Sen. Durbin: It's not mentioned in here. Neither is religion. We took the Ashcroft guidelines and embodied them here.
Sen. Sessions: I'm worried about some of the language there. Some of it is same as the DOJ's guidelines. There's others such as terrorist investigations, which would go beyond DOJ guidelines. Before we try to codify guidelines, we should realize that it's not easily changed. If we unwisely put in statutory language that we have not fully understood yet. I'm inclined to believe that dealing with immigration, country of origin makes a lot of sense.

Amendment Grassley 49 fails by a voice vote.

Amendment Feinstein 5 is up for consideration. Amended by a 2nd degree. The amendment requires live training with all CBP officials who are likely to come into contact with UACs.

Sen. Feinstein: 2nd degree would say that there is no additional staff. Now it's just training.

Amendment Feinstein 5 passes by a voice vote.

Amendment Grassley 43 is up for consideration. The amendment creates new grounds of inadmissibility and deportability for being a member of criminal gang. It would also be a basis for denying RPI status.

Sen. Durbin: Gang activity is deadly and dangerous. Your standard is a declaration, but you don't define what that means (to be a member of gang). Once you have a undefined standard of what it means to be a member of gang, you shift the burden of proof. I think our standard is a more credible one, a more defensible one.
Sen. Feinstein: I was just reading the bill language. I think the bill is rather comprehensive.
Sen. Whitehouse: I think that the notion is a good one. My objections are more about how it would be implemented, in how gang membership is defined. I think there's a really great amendment in there, I just can't see how it would work.
Sen. Klobuchar: I don't think this hits exactly where we need to go in terms of the definitions.
Sen. Schumer: We're open to amendments and improvements on the floor. I think this could use some tightening up. We certainly don't think this bill is perfect. We're open to moving further on the gang issue.
Sen. Grassley: I believe what's in this legislation would rarely be used, because it's written with so many loopholes, and in any case, the Secretary can still waive the deportation. My colleagues have issues with the definition. We leave discretion to the Secretary. If he's not a member of a gang, he has opportunity to appeal to the Secretary or to an immigration judge.

Amendment Grassley 43 fails by a vote of 8-10.

Amendment Whitehouse 5 is up for consideration. The amendment gives Attorney General the authority to deny the sale or transfer of firearms to those on terrorist watch lists.

Sen. Whitehouse: I'm astounded that there are any divergence of views on whether those on the terrorist watch list should be able to buy guns. I had hope this was noncontroversial, but it was controversial. So I will not offer the amendment.
Sen. Cornyn: There's been a suggestion that the FBI database is tied to the terrorist watch lists. What I'm aware of is that it's not even tied to those who are mentally ill. Does the FBI database include the terrorist watch list?

Amendment Whitehouse 5 is withdrawn.

Amendment Sessions 7 is up for consideration. The amendment provides sanctions for countries that denies or unreasonably delays accepting an alien with a final order. The amendment is modified by a 2nd degree with technical corrections.

Sen. Schumer: Sen. Sessions brings up a good point. We ought to have sanctions. We do have sanctions. If countries refuse to take back their nationals, we take away the diplomatic visas, it goes to the heart of the government officials who is doing it.
Sen. Sessions: There appears to be real constitutionality issues with the ability of Congress to interfere with the authority of the President in this issue.
Sen. Schumer: Let's add to the bill, and we'll work on the language, that if our solution doesn't work for constitutionality reasons, we'll use yours.
Sen. Sessions: I will withdraw the amendment.

Amendment Sessions 7 is withdrawn.

Amendment Franken 7 is up for consideration. The amendment would provide guidelines for the protection of children affected by immigration enforcement actions.

Amendment Franken 7 passes on a vote of 18-0.

Amendment Lee 16 is up for consideration. The amendment preserves the criminal offense of knowing use of a fraudulent immigration document.
The amendment is modified by a 2nd degree with technical corrections.

Amendment Lee 16 passes by a voice vote.

Amendment Coons 6 is up for consideration. The amendment requires ICE, EOIR, CPB and USCIS to maintain information about detained immigrants and regularly report to Congress. 2nd degree removes the interoperability requirement.

Amendment Coons 6 passes by a voice vote.

Amendment Grassley 45 is up for consideration. The amendment imposes criminal penalties for illegal entry or attempt to enter, including by knowing false statement; additional civil penalties for entering at improper time or place; civil and criminal penalties for entering a fraudulent marriage or entering a commercial enterprise for purpose of evading immigration laws.

Sen. Schumer: Our bill is very tough. Our bill makes illegal entry a felony, with other increased penalties. I'm worried about an 8 year-old who is brought across the border by his parents, they would be subject to the same penalties. There ought to be a humanitarian exception for churches who harbor.
Sen. Grassley: Here's where Sen. Schumer is right. There are tough penalties. But the new legislation increases the number of time you have to commit the crime before the penalties apply.

Amendment Grassley 45 fails by a vote of 8-10.

Amendment Blumenthal 2 is up for consideration. The amendment limits the use of solitary confinement in immigration detention to discrete situations and to brief periods of time under the least restrictive conditions. Bars children under 18 and those with serious mental illness.

Sen. Grassley: But I'm not so sure that we can see far enough ahead that retaining people in jail or in prison, every situation, this is one of those areas where discretion to the Homeland Security Secretary is justified.
Sen. Durbin: We're now thoroughly reviewing in Bureau of Federal Prisons the use of isolation and solitary confinement.
Sen. Leahy: What we do here, I hope, is reflecting the values of the United States. And I believe the amendment does reflect the value of the U.S.
Sen. Lee: I had a question. It caught my eye that a couple of the standards, that you would have to be visited at least 3 times a week by a health professional or once a week by a mental health professional. Is this a standard?
Sen. Blumenthal: We'll have to be get back to you. You have to remember that they are not in solitary confinement for disciplinary reasons. They have committed no crime in the detention context. They are simply mentally ill or children. Isolation for these lengths of time justify the visits.
Sen. Sessions: PBNDS, recent standards improved access to mental health care. The standard addressed administrative and disciplinary segregation specifically. I don't think we're in a position here today to determine how long the stay should be.

Amendment Blumenthal 2 passed by voice vote.

Amendment Sessions 10 is up for consideration. The amendment requires receiving Medicaid or SNAP benefits from being considered when determining if an individual is a public charge. Modified by 2nd degree Sessions amendment.

Sen. Sessions: This is going forward in the future for new immigrants.
Sen. Feinstein: If you're saying that a female is here and is pregnant, and is paid for by Medicaid monies, then that's it?
Sen. Sessions: No, this is up front, if you do not have an ability to take of yourself, you should not be admitted.
Sen. Feinstein: You don't know what you're going to happen to you when you first arrive. You're saying that under no circumstances, if you receive any payment.
Sen. Sessions: If people in this country, if they get in real trouble, we're going to take care of them. If they show a realistic opportunity to be sustainable, this is isn't going to bar them from receiving once they're here.
Sen. Durbin: Undocumented daughter, daughter born in the U.S. Undocumented mother applies for RPI status. Her daughter gets sick, the daughter gets Medicaid. What I'm reading your amendment is that the mother would not be eligible.
Sen. Schumer: This does apply to RPI, because this applies to renewal.
Sen. Sessions: The way we wrote it is to apply to future flow. Sen. Schumer, I acknowledge your good point. I think the amendment does what it requires. I'd be willing to adjust it any point later.
Sen. Hirono: In addition to a person in RPI status, I believe your amendment also make it difficult for a RPI low wage worker to change his/her status to LPR status.
Sen. Sessions: That's not what I intended, and I would be glad to propose the amendment. If it remains a problem, I will make any changes.

Amendment Sessions 10 fails by voice vote.

Amendment Coons 12 is up for consideration. The amendment denies safe haven to those who has committed war crimes, systematic crimes against humanity, and genocide.

Amendment Coons 12 passes by voice vote.

Amendment Lee 17 is up for consideration. The amendment reinserts "attempt" to make attempted misuse of a passport a criminal offense.

Amendment Lee 17 passes by voice vote.

Amendment Blumenthal 3 is up for consideration. Modified by 2nd degree. The amendment expands enforcement reach for trafficking to include "employers." Expands protections for workers recruited abroad.

Amendment Blumenthal 3 passes by a voice vote.

Amendment Grassley 47 is up for consideration. The amendment strikes Section 3717 of S.744 related to bond hearing provisions.

Sen. Durbin: If someone is here and they commit a crime, they don't go to Homeland Security, they go to the courts. If we're dealing with undocumented people who committed a crime, they are in the courts. But when we're talking about the detention system, let's at least have a reasonable due process system who are detained to figure out what their immigration status is.

Amendment Grassley 47 fails by a voice vote.

Amendment Blumenthal 4 is up for consideration. The amendment requires that DHS consult with the Department of Labor in prescribing regulations and developing policies and procedures to enforce the trafficking provisions of S.744.

Amendment Blumenthal 4 passes by a voice vote.

Amendment Sessions 12 is up for consideration. The amendment establishes a higher minimum bond for the release of individuals for noncontiguous countries.

Sen. Leahy: Would this apply across the board, no matter that they are not a flight risk?
Sen. Sessions: Yes.
Sen. Feinstein: I'm going to support this amendment. There is risk for potential and actual risk for terrorists coming in from the border.
Sen. Coons: There is no need to increase the minimum bonds, and we would be keeping a lot of people who are not flights risks in detention.
Sen. Sessions: The $5000, $1500 bond is not unreasonable.

Amendment Sessions 12 fails by a vote of 9-9.

Amendment Blumenthal 5 is up for consideration Modified by a 2nd degree. The amendment requires employers to disclose the employees the terms and conditions of their visa, visa renewal terms and responsibility for expenses. No changes may be made to an employee's contract without 24 hours' notice and voluntary consent of the employee.

Amendment Blumenthal 5 passes by a voice vote.

Amendment Hatch 2 is up for consideration. The amendment imposes enhanced penalties for cultivating marijuana on federal lands.

Amendment Hatch 2 passes by a voice vote.

Amendment Blumenthal 6 is up for consideration. The amendment would prohibit individuals coming in through the Visa Waiver Program from purchasing firearms.

Sen. Blumenthal: I will not be offering the amendment, as well as Blumenthal 9. I will be pursuing these amendments on the floor.
Sen. Durbin: Several of my colleagues that this is the most complete markup of a bill they have gone through. And the decision to Sen. Blumenthal to not bring the gun issue into the immigration issue does not diminish the issue of guns in any way.

Amendment Blumenthal 6 is withdrawn.

Amendment Sessions 32 is up for consideration. Modified by 2nd degree. The amendment expands the 287(g) program by giving state/local governments the ability to decide which model or combination of models is best. It restricts SCAAP funding to state/local governments that prohibit law enforcement from assisting with the enforcement of immigration laws.

Sen. Durbin: This is the boldest amendment my colleague has offered. He overturns a Supreme Court decision in U.S. vs. Arizona. He also overturns the Constitutional principles in that decision. He mandates the federal government to make payments to when we have found civil rights violations. He has denied federal funds.

Sen. Sessions: 287(g) has never been found unconstitutional. It is to provide training. It is not a mandate on localities with scarce resources, it is voluntary.

Amendment Sessions 32 fails by voice vote.

Amendment Hirono 22 is up for consideration. Modified by 2nd degree amendment. The amendment provides for enhanced protections for vulnerable UACs and female detainees.

Amendment Hirono 22 passes by a voice vote.

Amendment Grassley 44 is up for consideration.
Modified by Schumer 2nd degree amendment. The amendment make 3 drunk driving convictions an aggravated felony.

Sen. Feinstein: What if you have 3 drunk driving convictions before?
Sen. Grassley: That would not apply. You would have to have one after the bill passes.
Sen. Leahy: Is there no discretion?
Sen. Grassley: You're right. There is no carve out.
Sen. Leahy: I have some concerns about making it an aggravated felony when there might be 30, 40 years between convictions.
Sen. Schumer: What this does is, even if you have a series of them, if you have 3, that's a lot of warning, that it is a deportable offense.

Amendment Grassley 44 passes by a vote of 17-1.

Amendment Blumenthal 8 is up for consideration. Modified by 2nd degree amendment. The amendment codifies a policy for ICE and CBP enforcement at "sensitive locations."

Amendment Blumenthal 8 passes by a voice vote.

Sen. Grassley: I was going to offer Grassley 46, but I have a question first. Section 3711 of the bill, that section provides that an immigrant must have served at least 1 year imprisonment to have been removed. The crime is enough. Why is there a difference in standard?
Sen. Durbin: The question is if they have been convicted, why do they need to serve 1 year in imprisonment. We have heard from the community, when the offending spouse is deported, it hurts the victim and the children. The victim's rights groups tell us be tough but don't go too far.
Sen. Grassley: Mr. Chairman, I don't intend to offer that amendment.

Sen. Leahy: We'll be back here at 6:30.

6:40pm Sen. Leahy: We have 63 amendments on Title II, and just so we can plan, I have one amendment to it. Senator Coons, I believe has one. Senator Blumenthal has 4, Senator Hirono has 4, Senator Grassley 11, Senator Hatch 6, Senator Sessions has 17, Senator Graham has 3, Senator Cornyn has 3, Senator Lee has 7, Senator Cruz has either 2 or 3, Senator Flake 3 or 4. I have the list here. So to speed it up, I won't bring up my amendment. I believe we can finish by midnight.

Sen. Grassley: This was the first amendment that was discussed earlier today. So I divide my amendment number 27, the first vote would strike 1 year deadline on asylum. The second vote would be on lines 1 and 2, which would remove the ability to apply for RPI status if you have a frivolous claim.

On vote one, Amendment Grassley 27 (striking 1-year asylum deadline) fails by a vote of 6-12.

On vote two, Amendment Grassley 27 (RPI eligibility for frivolous asylum claim) fails by a vote of 9-9.

Sen. Leahy: So we close the enforcement title. And we move on to our final title on legalization.

Amendment Coons 10 is up for consideration. Modified by 2nd degree making technical corrections. The amendment prohibits work authorized individuals from being denied professional licenses.

Amendment Coons 10 passes by a voice vote.

Amendment Grassley 11 is up for consideration. The amendment limits those who would qualify to apply for RPI status. It removes protection for RPI-eligible individuals DHS apprehends between the passage of the bill and the RPI application period. It eliminates the waiver that would allow removed individuals, those with prior orders, and those who illegally reentered after 12/31/11 to apply for RPI status. It eliminates protections against detention or removal for RPI-eligible individuals and would allow DHS to remove RPI-eligible individuals with prior removal or VD orders or those subject to reinstatement. It also strips RPI applicants of the ability to obtain advance parole while their application is pending and of protection against removal.

Sen. Durbin: If you're only crime is that you're undocumented living in America. I think what you're achieving with this amendment is criminalizing those who have done nothing but being here unlawfully. Let's say you're undocumented and eligible to apply for RPI status. And then you're apprehended simply for the fact that you're undocumented. What we're saying is that for the good of the families, we're giving them a chance. And that moves beyond what we've decided is at the heart of the bill.

Sen. Grassley: We hire thousands and thousands of ICE agents and I want to make sure that they can still their job. It seems to me that you limit what ICE agents can do.

Amendment Grassley 11 fails by a vote of 6-12.

Amendment Blumenthal 12 is up for consideration. The amendment allows DREAMer RPIs who have honorably served in the military to receive citizenship.

Sen. Blumenthal: I will be offering at some point, perhaps not at markup, the Little DREAMers amendment. Blumenthal 12 essentially provides that DREAMers that sign up for the military for a 4 year requirement and serves 1 year can receive citizenship status. That is the current law. If that person is dishonorably discharged, the person is in effect denaturalized.

Amendment Blumenthal 12 passes by a voice vote.

Amendment Graham 3 is up for consideration. Modified by 2nd degree amendment. The amendment requires DHS Secretary to conduct additional security screenings for individuals coming from certain countries.

Sen. Graham: Originally, we were going to have a list of countries prepared in consultation with Secretary of State, but now, we're just going to have the agencies be in consultation.

Sen. Cornyn: How do you identify by the potential security threat. Is it from the country being a country of interest or by a special designation.

Sen. Graham: I believe that if you're here unlawfully, I'm okay with giving you a chance. But, if you're going to adjust your status and you come from a country that poses a threat, I'd like the DHS Secretary in consultation with DOS and other agencies to look at you harder.

Sen. Durbin: There are two categories you have here. Countries that pose a threat, or contains groups or organizations that pose a threat. There are groups that pose a threat in England or Mexico.

Sen. Graham: I think the second part clarifies it. The purpose of the screening is to make sure that the alien is not a member of a terrorist group. This is in the 2nd degree.

What I'm trying to do is, there are parts of the world where terrorist groups operate and where there are groups that pose a threat.

Sen. Sessions: It seems to me that you really give discretion Secretary of Homeland Security and Secretary of State. I'm sure they would use common sense in determining the countries that pose the most threat.

Sen. Graham: If all you've done is come here illegally, we're going to give you a second chance, we're going to look at where you came from.

Sen. Whitehouse: Would the Senator be satisfied…we have an existing list of terrorist-sponsored. And there are a variety of ways . If the Secretary would use existing lists, would you want it to be broader than that?

Sen. Graham: The point of the 2nd degree was to get away from using the list, because Russia would be on the list. So instead of everybody from Russia, we'd look at a certain region. So we could look at one person from Russia and not another.

Sen. Graham: I've been working with the State department. Their concern is that if you use the list, then it'd be the whole country. For example, Russia is on the list, but it wouldn't make sense to look at the whole country.

Amendment Graham 3 passes by a voice vote.

Amendment Hirono 21 is up for consideration. The amendment makes DREAMers eligible for federal financial aid.

Modified by a 2nd degree that would give more limited financial aid that would be available to all students.

Sen. Cornyn: Under your amendment, would the individuals be eligible for a Pell Grant?

Sen. Hirono: No, they would not. That was taken care of by the 2nd degree amendment.

Amendment Hirono 21 passes by a voice vote.

Amendment Sessions 16 is up for consideration. The amendment makes changes to the RPI processing system. Expands trigger for processing RPI applications, requires DHS to certify that applications may be filed electronically, Lists national security and law enforcement clearances that must be ensured, requires DHS to develop and administer a fraud detection and deterrence plan, establishes fines for fraud, expedited removal for aliens for finding/conviction of fraud, requires in-person interviews for certain individuals 14-79 years old applications for RPI status, blue card status, or adjustment of status as a DREAMer

Sen. Schumer: I have to oppose this amendment, but what it would do is delay, and it would delay dramatically, the status we hope some people who have in 6 months. For example, to say that everyone has to apply online. This is going to pose huge hurdles.

Sen. Leahy: I worry that it makes the path to citizenship unattainable.

Sen. Sessions: The sponsors of the bill promised that criminals would not be approved. How are you going to ensure if they do not do a NCIC check? It would not slow the process down. It would speed up the process. If they do not have internet access, they could come into the office and they would be entered in

that way.

Amendment Sessions 16 fails by a vote of 6-12.

Amendment Hirono 16 and 17 is up for consideration. Amendment 16 would remove barriers to health care and nutrition assistance for children, pregnant, and other lawfully present individuals. Amendment 17 would allow RPIs to access federal benefits.

Sen. Hirono: I will not be offering the amendments. Both of them would restore eligibility for safety net programs, such as Medicaid and SNAP. I know these are controversial amendments, but they should not be.

Amendments Hirono 16 and 17 withdrawn.

Amendment Cornyn 3 is up for consideration. Modified by 2nd degree. The amendment denies RPI status for misdemeanors including domestic violence, child abuse, assault.

Sen. Durbin: Even old shoplifting convictions or a bar fight would bar people from RPI status. About misdemeanors, in my state, it includes the abandonment of a refrigerator. In others, gambling, littering… In the bill, it would give discretion to the Secretary. Your amendment would remove that. I understand where you are headed, we disagree on approach, but I think this bill is so strong that make the changes you suggested would not be fair or just.

Sen. Cornyn: As we all know, many times these cases are plea bargained as misdemeanors. I don't understand the argument that by barring the RPI status of the wife beater that it somehow causes the deportation of the victim.

Sen. Durbin: Consider the circumstances when the wife speaks limited English and does not work. When the beater is deported, she goes too.

Sen. Cornyn: I think in terms of credibility of the Senate and the piece of legislation it would be a no brainer.

Sen. Franken: DV groups are strongly opposed to this for the reasons that Senator Durbin discussed. The national DV community and those in Minnesota feel strongly for this.

Sen. Cornyn: What is the rational

Sen. Franken: A woman won't come forward if the father of her child would be deported. They believe, strongly, that this will make it less likely for women to come forward and seek shelter. I've gone to shelters and I see that line of reasoning clearly. If they know that means that he will be deported, she won't report it.

Sen. Cornyn: We are not talking about prospective events, but we are talking about people who are already convicted of an offense.

Sen. Schumer: If someone on RPI commits a crime, they can commit a crime and lose their RPI status and a green card.

Amendment Cornyn 3 fails by a vote of 8 -10.

Amendment Hirono 12 is up for consideration. The amendment allows those applying for RPI status to pay the fine in installment payments.

Amendment Hirono 12 passes by a voice vote.

Amendment Grassley 18 is up for consideration. The amendment requires RPI applicants to disclose all Social Security numbers used to obtain employment in the U.S.

Sen. Grassley: This doesn't hurt the person applying for RPI status, it helps those who are hurt by identity theft.

Sen. Schumer: It has an admirable purpose, but not practicable. How are they going to remember all that?

Amendment Grassley 18 fails by a vote of 8-10.

8:20pm Sen. Leahy: We will stop at this point until 10:30 tomorrow morning. But we will go very late tomorrow night. Several Senators have told me they would like to finish before Friday.

Cite as AILA Doc. No. 13052042.