Guantanamo Bay Detention Facility Closure Act of 2007

Madam President, I thank the Senator from Iowa.

I see the Senator from Georgia and I know the Senator from New Jersey wishes to speak on this issue. I will speak briefly. Will the Senator agree to an hour of time on the amendment?

That is fine. We don't expect to vote at that time. I have been informed by the leader we are going to try to do this amendment, then the Bingaman amendment, and then vote on both at 2 o'clock. I won't propose that as a time, but if the Senator would think in those terms, we will go ahead with other Senators and then come back to the Senator from Iowa.

I thank the Senator.

Will the Senator yield on that point for a question?

I listened with great interest--I hope our colleagues are--to the point the Senator from New Jersey is making. I wish to ask his comment on a situation. Some months ago we had a raid in New Bedford, MA. The people were picked up. They were sent up to Fort Devons and flown out of there, and many of them were transported to El Paso. Then some of them were deported. I have in my hand a May 3 article from the Boston Globe. The headline is ``U.S. Deports Wrong Raid Detainee In Case of Mistaken Identity.''

A man arrested in the March 6 raid of the Michael Bianco

leather factory in New Bedford was deported by mistake,

Federal officials said yesterday. Juan Sam-Castro, a native

of Guatemala, was taken for a man of the same name, said the

spokesman for the U.S. Immigration and Customs Service. As

soon as the Customs Service became aware, we took immediate

steps to bring Castro back to the United States. We are

trying to locate him.

Here is an American citizen who has been deported and they are trying to locate him. Is the Senator not saying that in the situation where last year we deported 187,000 individuals and even in the last few weeks where we have this kind of mistake, at least some opportunity for an expedited kind of a review that effectively is not slowing the process down with this individual, between the time he was arrested and the time he was deported, was very few weeks, let alone the time he had the hearing, does this illustrate at least part of the points the Senator is trying to make with regard to the immigration service and the need for at least permitting the kind of review that currently exists? I do not believe we have had testimony to the contrary that this is an undue burden on the system.

Madam President, first of all, I commend my friend from New Jersey for an excellent presentation, particularly on this issue of the Grassley amendment, and for also reminding us about the importance of family in the consideration of our immigration bill.

I think we are going to have an opportunity during the course of the day to deal with those issues in greater detail, and we will look forward to that. I think we have made some important progress in terms of family issues, but I think we have also seen some changes in the existing law in those issues. And it is important for the American people to understand exactly the areas we have made progress in and the areas that we have altered as we deal with this underlying bill.

I wish to take a moment to address the points that are included in the Grassley amendment, which is the pending amendment. Then I understand the Senator from New Mexico will be coming down shortly to offer an amendment that deals with the temporary workers. We will have an opportunity during the noontime to address that issue. Then, according to the leadership, we will have the two votes. If there are side-by-sides, other votes--at 2 o'clock or in the time close to 2 o'clock. I say that for the benefit of our colleagues here.

Madam President, on the Grassley amendment, I think it is important to understand that people who come into the United States under visas have to go through extensive background checks before they are granted visas, and again before they are admitted. We are talking about millions of visitors, about hundreds of thousands of scholars and researchers and workers. These are not criminals or terrorists. Anybody who is a terrorist or criminal is not eligible for a visa.

I will just mention the various crimes that individuals have committed that have denied them the opportunity to come to the United States to get a visa: crimes of moral turpitude, such as aggravated assault, assault with a deadly weapon; aggravated DWI, fraud, larceny, forgery; controlled substance offenses, such as the sale, possession, and distribution of drugs, and drug trafficking; theft offenses, including shoplifting; public nuisance; multiple criminal convictions, any alien convicted of two or more offenses regardless of whether the offense arose from a scheme of misconduct; crimes of violence; counterfeiting; bribery; perjury; certain aliens involved in serious criminal activity who have asserted immunity from prosecution; foreign government officials who have committed particularly severe violations of religious freedom; significant traffickers of persons; money laundering; murder; rape; sexual abuse of a minor; child pornography, as well as attempts or conspiracy to commit most of those offenses.

Those, obviously, who are denied on security-related grounds include espionage or sabotage; engaging in terrorist activity, and that is broadly defined; likely to engage in terrorist activity, broadly defined; association with terrorist activity; representative of a terrorist organization; spouse or child of an individual who is inadmissible as a terrorist; activity that is deemed to have adverse foreign policy consequences for the United States; membership in a totalitarian party.

All of those ban individuals from coming into the United States. So if a visitor here has his visa revoked, he should be entitled to review. This doesn't create a burden on our courts but simply preserves basic due process. Courts review these cases every day, and we have heard no evidence of any undue burden on the courts. These cases can be handled expeditiously.

Immigration judges ordered 220,000 people deported last year. Only 9 percent of these decisions were appealed. We have no abuse in the system at the current time. So providing review to a few more people whose visas are revoked won't flood the courts.

Again, we are talking about the mistakes that can be made with the Department of Homeland Security, as a Member of the Senate, I was put on the no-fly list by the Department of Homeland Security and denied the opportunity to even fly out of the Nation's Capital to go back to my home city of Boston. In Boston, I had the temporary approval by the Department there, which had to overrule Homeland Security. Despite the head of the Homeland Security then saying we have cleared that up, it wasn't cleared up for 3 more weeks, and with the airlines, it was 4 more weeks. If that happens to a Senator, what is happening to other individuals?

I have given the example of a person in my home State of Massachusetts

who was deported. Now the Immigration Service is trying to find that individual down in Guatemala. It was because of similar names.

So I think, as the Senator from New Jersey pointed out, the system we have included in the legislation is appropriate. It is not burdensome. We have had no complaints even during this long period of time. We have had no complaints from any of those who have been involved in the system that it is an undue burden, or any complaints from the judicial system. We have found out that we have 23 different incidents reported by my own Boston office of individuals who are very substantial citizens in New England, including a dean of a medical school, who were put on the list by mistake.

So mistakes happen. All we have in this is a simple process of review. That process has been outlined and stated by the Senator from New Jersey, and it should be preserved.

I look forward to not closing off the time to the Senator from Iowa, but we are trying to move this process along and consider the amendment of the Senator from New Mexico and then see if we cannot continue to consider the follow-on amendments. The Senator from South Carolina has an amendment as well. We will be looking forward to having debate on his amendment.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I wish to take a moment to congratulate the House for moving on the issue of Iraqi translators. I am talking about translators who have worked for the American Armed Forces in Iraq. They have to follow a very detailed procedure, and then they get certified. Most of them have to work on it for more than a year.

These people have been particularly targeted by the terrorists. Their names are printed in mosques and other places of worship, and if they are found, they are executed. We have a limitation, I believe, of 50, and we have taken in 18. Many of these individuals have risked their lives for American service men and women and this legislation will be a very small downpayment in terms of their safety and their security. It is important, and I am hopeful we will be able to address this issue.

I suggest the absence of a quorum.

Mr. President, I commend my friend from New Mexico for his thoughtful presentation on this issue. As he mentioned, he offered this amendment last year and it passed overwhelmingly. I expect there will be a similar result today.

I appreciated the fact in our earlier debate he understood we need this temporary worker program. All of us want to have a strong border, but we do understand there will be pressure on the

border, and we will either have a front door or a back door, the back door being for those who are going to try to penetrate that border, or the front door so they can come in and have a temporary worker program.

The real issue is the size of this program. The Senator has mentioned the other provisions that are included in the legislation. We have the longstanding temporary worker, the H-2B, which is about 100,000 workers. Those are the seasonal workers, for the most part, who work in many of the resorts during the summer or wintertime and are truly temporary workers. They are entitled to bring their families. They do not. That program has been very modestly expanded over this program.

You have the H-1B, which is sort of high tech, which is 150,000--it will go up to 180,000; and the ag jobs, which is 40,000 to 60,000.

The reason the 400,000 was reached is that is the general estimate, although there are some a good deal higher, of individuals who penetrate now. I think it is safe to say it is probably closer to 500,000 undocumented who come across the border and are able to gain employment here. So the 400,000 represented an evaluation, an estimate from results of hearings. That is how we built that in. Then, in the legislation, there is the possibility it can either go up or go down. The Council of Economic Advisers thinks we need probably close to a million new jobs every year.

I think what we, in our considerations, were thinking about establishing is some panel that would be made up of workers as well as members of the business community and people who could help give an assessment, and make a recommendation of what that number would be.

I think that is probably the best way to go in the future. But that is not where we are today. Where we are today in the bill is 400,000 and the possibility of an escalator to go up or an escalator to go down.

The Senator says: Let's start off in this area, we are not sure how this program is going to work. Let's start off with just 200,000, watch it very carefully, find out if the kind of mix we have with this and with the point system we have been able to develop is going to function and work, whether after 2 years people will really go back or they will not go back.

I think he makes a strong case. I did not support this last year. I feel sort of compelled--under the agreements we have made earlier in terms of the totality, I feel the same restraint this time. But I commend him for the thoughtful presentation. It was thoughtful last year, and it is thoughtful this year. He makes his points very effectively. It ought to be considered by the Members. I do not, as I mentioned, tend to support it, but I certainly would ask our colleagues to look at it very closely because it is a thoughtful presentation. He raises some very important and worthwhile points.

I thank him also for coming over here and offering this amendment. I think the time has been set for voting at 2 o'clock.

Mr. President, I yield the floor.

The PRESIDING OFFICER (Mr. Menendez.) The senior Senator from Pennsylvania.

Mr. President, first, I thank my friend from New Mexico for his presentation on this issue. He has spoken to those of us who have been working on immigration about his concerns on the numbers. He made this

presentation the last time the Senate considered the immigration bill and was successful, and I expect he will be this afternoon.

It was very difficult for us to make an exact judgment about the total numbers. Those numbers were set at about 400,000 because that was a somewhat lower estimate of people who were coming in here who were undocumented, and it was also recommended by the Council of Economic Advisers in terms of the needs of the economy. That is where it is from.

But he makes a legitimate point--we do not have a real definite idea about what these numbers ought to be. We looked at the idea that we establish this program and then try to establish a commission that would make a recommendation to Congress in terms of the numbers on into the future. I think that is probably the best way to proceed in the future.

I will reluctantly oppose the amendment of the Senator from New Mexico, but I thank him for the thought he has given to this issue. We will be willing to work with him regardless of how this comes out.

Mr. President, we are prepared to yield whatever time we have--except for the Senator from New Mexico.

Mr. President, I ask consent--I think I yielded the time back before I knew the Senator from Pennsylvania, who is a cosponsor, desired to speak. It will only be half a minute. I ask unanimous consent that he be able to speak prior to the time of the vote.

Mr. President, Senator Grassley was here earlier. I understand he may be modifying his amendment. Senator Graham is prepared to move ahead. Then we will alternate back and forth. The Senator from California, Mrs. Feinstein, is ready to go. I see the Senator from South Carolina. If he is prepared to proceed, we will go ahead with his amendment.

Mr. President, I have a good deal of respect for my friends from South Carolina and Georgia, but I am somewhat mystified by this proposal. Let me illustrate why.

First of all, this proposal by the Senator from South Carolina is a large Federal mandate. Do you understand? It is a large Federal mandate. Why? Because the Bureau of Federal Prisons now says it takes up to 45 to 60 days for any individual who is found guilty in the lower courts to get to a Federal prison. Who pays for that? The local people pay for that.

First, it takes 45 to 60 days--all of which will be included in this amendment--which is going to be paid by the local people. So we are saddling all the local communities, as they start off in their proposal.

Now, after we hear the speeches about how we are going to be tough on crime, let's look specifically at the current law and what our bill does and then what this amendment does.

For the entry of an alien after removal--no deportation or denied admission, no criminal history--under current law: fine, or not more than 2 years, or both. Our bill is the same as current law. But the Graham amendment says: not less than 60 days in jail--60 days in jail.

So we want to let Arizona, California, Texas, New Mexico know that for all those people whom we all heard about coming back across the border, they are going to be for 45 to 60 days in the local jails. Is there any kind of report about how they can handle it? Is there any sense about whether the jails are crowded? Is there any idea about what the Governors say? Is there any idea about what local communities say? No. But this happens to be the fact. There are seven different places where they put these mandatory penalties in.

Under current law, for the entry of criminal offenders, with three or more misdemeanors involving drugs, crimes against persons, or both, or a felony: fine, not less than 10 years, or both. In the bill, S. 1348, we say, three misdemeanors or one felony gets a penalty of not more than 10 years in jail. What does the Graham amendment say? New mandatory minimum creates minimum penalty of 1 year.

So they say you get 1 year. We say you can get up to 10 years. Why the difference? Because we want the judge to make the decision on the severity of the crime.

Here, we go down to the prior aggravated felony conviction penalty, which under current law is not more than 20 years. We, in the bill, say the penalty can be 15 years, or a fine, or both. Under the Graham amendment, it is 2 years and a fine.

Once more, we leave it up to the judge. If we have the serious kinds of penalties, they ought to get the serious time. Who is being tougher on crime? We are listening to the Senators from South Carolina and Georgia: We are tough on crime. Who is tough on crime? Come on.

The list goes on. If you are caught, you are a repeater, you are caught back across the border with a prior conviction for murder, rape, kidnapping, slavery, terrorism, then the penalty is not more than 20 years. Under the Graham amendment, it is 5 years--the new mandatory is 5 years. Ours is 20 years. We let the judge make that decision, but his is 5 years.

Now, I have been a strong supporter of sentencing reform from the very beginning. We have had these enormous disparities on the issue of sentencing. The Sentencing Commission was supposedly to make an evaluation about the nature of the crimes taking place in the country, the space that exists in the various States and Federal institutions and to make recommendations in terms of what the scope ought to be in terms of various crimes and what the availability is in these various penal institutions and how they compare to other kinds of crimes. It seems to me that is what we ought to be doing with the penalties in this legislation as well.

Let's listen to Supreme Court Justice Kennedy, who has vigorously criticized mandatory minimums as unfair and inconsistent with the fundamental principles of justice. In February, he was very clear in his opposition to penalties in his testimony before the Senate Judiciary Committee. He also said mandatory minimums are wrong because they restrict the ability of judges to strike the best balance between the goal of consistent sentencing and the need to give judges discretion to make the punishment fit the crime in individual cases.

That is what we have in the underlying law.

In 2003, Justice Kennedy said:

I can accept neither the necessity nor the wisdom of

Federal mandatory minimum sentences. In too many cases

mandatory minimum sentences are unwise and unjust. The

legislative branch has the obligation to determine whether a

policy is wise.

Now, I am more than willing to establish tough penalties where appropriate, but we have to draw the line with a rash of mandatory minimum sentences in current law. We have a new Congress and a new opportunity to stop the madness with mandatory minimums that impose long and costly sentences. Moreover, there is no suggestion that these penalties make a

great deal of sense. If anything, they are already causing a terrible burden.

There is no epidemic of leniency in the Federal courts today. We have not heard, in hearings in the Judiciary Committee, about leniency in terms of the crimes--we have not--nor with regard to these different provisions.

The Federal prison population has quadrupled in the last 20 years. Now it is larger than any State system. The addition of new mandatory minimums only places further strains on the Federal prisons, which are already struggling with a growing population, along with diminishing budgets. Justice Rehnquist made the following observation about mandatory minimums: Our resources are misspent, our punishments too severe, our sentences too long.

That is his statement in opposition to mandatory minimums. We have the statements that have been made by the 2006 Conference of Mayors, representing 1,100 mayors and cities with populations over 300 that passed a resolution opposing the mandatory minimum sentences. It called for a fair and effective sentencing policy. The Nation's mayors are opposed to mandatory sentences on both Federal and State levels. Our mayors believe we should have laws that permit judges to define appropriate sentences based on the specific circumstances of the crime and the perpetrator's individual situation, and that States should review the effects of both Federal and State mandatory minimum sentencing and move forward.

As I say, that is my position on this. I am under no illusions about what the desire and the will of this institution is on this particular proposal.

I yield the floor.

Mr. President, I indicated in my earlier comments about the different provisions that exist in the law, the kind of flexibility that is out there to deal with serious crimes. But with the mandatory minimums you have a blunderbuss solution. There is no ability or flexibility at all to be able to deal with it.

The Federal Bureau of Prisons estimates it costs $67 a day for each person in jail. Estimates are it costs $90 per day to detain an immigrant. Right now each immigrant spends an average of 42.5 days in detention prior to deportation, at an average cost of $3,825. Senator Graham's 60-day mandatory minimum for illegal reentry would increase the total spent in detention by 17.5 days, which increases the cost of detention per immigrant to $5,400. These increased costs couldn't be avoided because the mandatory minimum won't let the judge give any defendant a lower sentence regardless of the facts. This is a major problem with the mandatory, and this amendment would be a costly mistake.

The fact is the States pick up before the individual enters the system, the States pick up the tab. So New Mexico, Arizona, California, and Texas, you are going to have this new mandate and expenditures for it.

Last year, 11,000 immigrants were charged with the offense of improper entry. If this amendment passes, we are looking at increasing the costs by millions of dollars. According to 2005 data, the U.S. Government has the resources to hold 19,000 immigrants. It represents less than 1 percent of the undocumented population. This amendment may also require us to build new facilities to house these people, new prison beds, $14,000 per bed. We don't know how many beds will have to be built if this amendment is adopted.

It seems the provisions we have in the legislation make sense, and if the Senator wanted to alter his amendment and say: Let's let this go to the Sentencing Commission and let them make the recommendations, which we have done on other pieces of legislation to permit the penalty to suit the crime, I would say amen. But this amendment is going to put an important additional burden on the local communities, and it doesn't have the flexibility we have in the existing legislation in terms of dealing with those who are the real bad guys in this process. We have that ability in the existing legislation. The idea we are going to make it mandatory for people to go in for this period of time takes away that kind of flexibility, which is desirable.

I see my friend and colleague from New Mexico on the floor and I know he desires to speak.

Mr. President, briefly, to quote from the American Bar Association, this was their comment a year ago on the previous immigration bill on the same subject, on the issue of mandatory minimums when this issue came up during that time:

The American Bar Association strongly opposes the

provisions in the draft legislation--

That was the draft legislation a year ago--

that would enhance or create new mandatory minimums. First,

as a general matter, the mandatory minimums produce an

inflexibility and rigidity in the imposition of punishment

that is inappropriate for a system that we hold out to the

world as a model of justice and fairness. To insist that all

those convicted of a crime be lumped into the same category

and be penalized indefinitely inevitably means the injustice

of a sentence in particular circumstances will be ignored.

Additionally, we are concerned at the high cost of imposing

mandatory minimums. Numerous studies have demonstrated the

extraordinary costs of incarcerating thousands of nonviolent

offenders in our Nation's prisons and jails.

The provisions to create the new mandatory sentences,

coupled with those to increase the mandatory detention, have

the potential to greatly increase the number of individuals

being incarcerated in immigration-related cases at a

significant cost to the American taxpayers.

We have provisions in the legislation that are tough and that a judge can use and must use in those circumstances which require it. But I think to effectively tie the judge's hands in these other circumstances makes little sense.

I see the Senator from California on the Senate floor. I would like to ask how the Senator wants to dispose of this amendment.

Mr. President, I suggest that we proceed with the Senator from California and then come back to that.

Mr. President, I ask unanimous consent that we go now to the Senator from California and her amendment.

Mr. President, I will not take much time. I commend and thank the good Senator from California. This is an extraordinary humanitarian need. I have listened to the Senator from California on the floor, I have listened to her in committee, and I have listened to her at hearings. This is a matter of enormous importance. It relates to minors, children, vulnerable people, and the record of exploitation. This amendment is well thought out. She has had strong bipartisan support for it. In the past, there has not been objection to this amendment. I know of no objection to it. It is an extremely worthwhile amendment.

I have spent a good deal of time commending her and talking about the amendment, but she has done an excellent job in its presentation. I certainly hope we will accept this amendment. I believe we are prepared to accept it.

Mr. President, if the Senator will yield, I ask unanimous consent that the previous incomplete voice vote on amendment No. 1173 be vitiated and the amendment be agreed to. This is the Graham amendment.

I had hoped we could voice vote the amendment of the Senator from California. I have been notified that we cannot voice vote it, so we will have to have a rollcall vote on that amendment. I believe the Senator from California is prepared to go ahead.

Yes, I will be glad to yield for a question.

Yes.

That is an excellent suggestion, if the Senator from Pennsylvania thinks it is a good idea.

I think we ought to do that in a few minutes. I am hopeful we will be able to do it. I hope that request will be made either during or after the debate on the amendment of the Senator from New Hampshire.

So, Mr. President, just before the Senator from New Hampshire begins, we are moving along. We are going to take up the amendment of the Senator from New Hampshire, and then it will come back to our side. We have several Senators who have indicated a desire to offer an amendment. Then I believe it will go back to the other side, and I believe Senator Cornyn has an amendment. That is how we will proceed. We intend to go back and forth. We have quite a list here. We are making progress. I am grateful for all the cooperation we have had.

I yield the floor.

The Senator from California, Mrs. Feinstein, had an amendment. I understand now that we are prepared to voice-vote that amendment.

Mr. President, now we have the Gregg amendment that is pending; am I correct?

Mr. President, I will say a brief word about this amendment. If others want to say a word

about it, that is fine. Then I intend to make a motion to table it.

Mr. President, the Judiciary Committee, long before we developed this legislation, had extensive hearings about border security. We listened to Secretary Chertoff speak. We listened to him both in open session and in closed session.

I am convinced those recommendations were the best information that we had in terms of our border security and they are incorporated in this legislation.

It is a reflection of a bipartisan effort to make sure that we are going to do everything that is necessary and can be done to provide a secure border. We are using the latest in technology. They are using the fence areas where they believe that is appropriate and have the support to do it.

They are using the latest in terms of aerial drones, the latest in terms of barriers that are out there. All of the latest in technology will be used in terms of securing our border.

Now, the Senator from New Hampshire says he wants additional kinds, as well as dramatic increases, in the total number of Customs agents.

What we have to understand, what has been clear since we have started this whole kind of a process is, if we are going to control our border, as we have heard from Homeland Security, the leader of Homeland Security, it has to be comprehensive.

You have to have a secure border, but you also have to have some opportunity to have a border which permits individuals to be able to come through the front door if you are going to help them.

What I mean is, you are going to have to complete this in a timely way. If we just think we are going to be able to delay the completion of a comprehensive program, which the Gregg amendment will do, we are going to find out the borders are going to continue to be penetrated over the foreseeable future. That just happens to be the fact.

We made those points at the time to those who have said they want to abolish or close out a temporary worker program. If you think you can build a border and have border security there and have no opportunity for any individuals to be able to come in legitimately, you have not listened to the record and you have not listened to the testimony and you have not listened to those who have been responsible for national security.

They say you have to have some opportunity for individuals

to choose the more hopeful aspect rather than risk their

lives out in the desert. Now, with the Gregg amendment, what

that will do is effectively ensure that we are denied a

temporary worker program, we are denied the opportunity to

have any chance for individuals to come through the front

door.

As Governor Napolitano pointed out very clearly in her record materials that we have used previously, if you build a 50-foot high fence, those who want to come in will build a 51-foot high ladder. That happens to be the fact. That is why we have heard from those who have been involved in national security and border security who say: You need the comprehensive approach that is the underlying bill.

I think the Gregg amendment will delay the opportunity for us to do the underlying kind of effort to which we have been committed. I think, therefore, we should not accept that.

Mr. President, I move to table the Gregg amendment and ask for the yeas and nays.

I will.

Mr. President, I see the Senator from New Hampshire. I would be glad to withhold if the Senator wanted to address the Senate; otherwise, I will make a motion to table the Gregg amendment.

Mr. President, I will include in the Record the Homeland Security proposal that was shared with the members of the committee. We asked what was going to be necessary for secure borders. I have in my hand the proposal of Homeland Security. That is what we have included in this legislation, their recommendations. I am sure we could always do more and more and more, but what we have done is taken what has been the recommendations of Homeland Security in each and every one of these areas.

They have made it very clear that in carrying forward and reaching these recommendations it is going to take a combination of different elements. It is going to take their own kind of manpower to be able to reach this. It is

going to take the technology to be able to reach it--over what period of time in terms of the contracting, and all the rest.

But as to what was necessary in terms of securing the border, that was it. We are all for it. This is what they told us. That is what we have accepted. We have gone over the list. I will make it part of the Record. It goes over the numbers of hires, going all the way into the Border Patrol agents. They come into the whole issue of border barriers and surveillance, the number of miles each year planned, what they believe is necessary. They review what they believe is the timeline for the catch and return, the number of beds that are going to be necessary. They go through the various milestones, the start-up costs, the actual recurring costs.

They have outlined all of this in very careful detail. That is what we have done. Every Member of the Senate ought to understand, these are Homeland Security's recommendations to secure the border, and that is what we have included in the legislation. It is always possible, I am sure, to be able to do more. We have done what was recommended to secure it, and I think it is a very effective program.

Mr. President, I ask unanimous consent that the material be printed in the Record.

Mr. President, I now move to table the amendment of the Senator from New Hampshire.

Mr. President, I would make a motion to table the amendment of the Senator----

From New Hampshire, and I ask for the yeas and nays.

Yeas and nays, Mr. President.

Yeas and nays.

The yeas and nays, Mr. President.

Mr. President, if I could have the attention of the Senator from New Hampshire, we were necessarily absent during the earlier presentation by the Senator from New Hampshire at a meeting with----

I withdraw the motion to table.

Mr. President, I was under the impression we had gone through the debate and discussion. I had indicated I was going to make a motion to table. When the Senator from New Hampshire came to the floor, I was glad to withhold as the Senator remembers. The Senator, as I understood it, had finished his comments, and I made brief comments.

I am more than glad, if the Senator wants to address the amendment. We have just been in the process of trying to move along. I have no intention of cutting him off. We have not attempted to cut anyone off. So if he had that impression, I regret it. I say to the Senator from New Hampshire, we have been longtime friends, and we have been trying to have a process of moving this along. I had not known, at least on our side, we had other people prepared to speak. I had not heard there were others who were prepared to speak on the other side. So that was basically the reason for moving ahead.

But I am glad to withdraw the motion, as I was earlier. I would hope the Senator would understand, and we would hear from the Senator, if he so desires. We want to, at some time, reach some judgment on the amendment, but I am glad to work that out with the Senator, as I have tried to over the years.

Mr. President, I ask unanimous consent to vitiate the yeas and nays on the Gregg amendment.

Mr. President, we are prepared to vote.

Mr. President, I thank the good Senator from New Hampshire. We continue to make progress. I thank him. I know his strong views on this, and we will continue to work on it as a matter of enormous importance. I know the Senator from Arizona and others feel very strongly. We want to have a secure border. People have differing views, but we will work very closely to try and achieve the objectives, and we will work very closely with him as we go to conference and in conference as well. We all understand this is a work in progress.

Now, for the Members, I know Senator Cornyn wanted to offer an amendment. As I understand it, he is still in the Armed Services Committee. We were ready to go on our side. We had an amendment of the Senator from North Dakota which is going to sunset the temporary worker program. He is giving thought to that. If he would like to--I see Senator Cornyn is here now. We may go out of sync here, but if we wanted to go ahead with that--I see my friend from Arizona.

I yield the floor.

Sure.

Mr. President, I think we would like to try to at least get another vote, possibly two. I think we will know more clearly in about 15 minutes and we will notify our colleagues. I think we have made some good progress. We had several of our colleagues--as always, these are enormously important--from the Armed Services Committee and others. We will probably have a brief window tomorrow.

The Senator from Arizona, Senator McCain, was here earlier and wants to do an amendment on back taxes, and I have indicated I thought we could probably do that in the morning and we will try to work out a time with him. We are trying to follow going back and forth, but if there are people here from a particular party who are prepared to go ahead, we want to try to deal with that.

I think we will have a limited time in the morning. I don't know when we are going to get the supplemental, but I am hopeful we would have at least a window in the morning.

That would be fine. I see the Senator from Iowa here who wanted to make a comment as well.

That is always possible. We would like to check with the leadership. Senator Cornyn has been extremely patient through this process and has indicated at the start of the day that he would like to be able to address the Senate on an issue. He has now returned. I would like to see if we can't have maybe a short period here and then I could try and make an assessment and let the Senator know. But I would be very hopeful that we would be able to address Senator Cornyn tonight, and then I could talk to the Senator from North Dakota and Senator McCain. If we can get those lined up for the morning, maybe we will be able to give an announcement about where we are.

If we could proceed with the Senator from Tennessee for 5 minutes and the Senator from Iowa for 10 minutes, and then we will announce what the plan is for the evening and for the morning. I ask unanimous consent to do that.

Mr. President, I see my friend and colleague from Hawaii who has an amendment which I hope we will be able to consider and accept. I have talked briefly to the Senator from Arizona and others. I ask unanimous consent that the Senator's amendment be in order.

Mr. President, I thank the Senator from Hawaii for offering this amendment. He offered this amendment in the last immigration bill. We accepted it at that time. I am confident that will be the case on this time, but given the hour of the evening, we are unable to get this cleared.

Basically, as he has expressed so well, he is talking about the immediate family members of those who served with American forces in World War II. Under the broad scope of the underlying legislation, they would be included to be able to come to the United States. Under the bill, it would take an 8-year period. What the Senator from Hawaii is saying is these are older men and women who would otherwise be able to come here. They are the brothers and sisters of those who fought with American forces in World War II, and we want to move them up and have them come more quickly, given the fact of their age. It is a very decent thing to do. We would be entitled to do it under the underlying framework of the bill. It doesn't change the underlying framework of the bill.

It is a humanitarian gesture. It is a noble gesture. It is typical of the Senator from Hawaii to be thoughtful about this, always being concerned not only about individuals but members of the Armed Forces. He continues to be a champion on the Veterans' Committee. I speak for the veterans of my State as well as in this case the veterans of World War II for their immediate family, and I am very hopeful we can get this cleared at an early time tomorrow. I wish to commend him for this amendment. He had indicated to us early on that this was a matter of high importance to him, and it is, I think, and should be a high priority here.

So we would ask the Senator if we may move along, and I will try to get the clearance for that amendment on tomorrow, and we will notify him when that happens. We thank him again for bringing this to the attention of the Senate and for being thoughtful about these extraordinary family members of those who served so nobly, courageously, and heroically in World War II. So I thank the Senator. He can be assured of my support and help and assistance and hopefully we will have good news for him tomorrow on this amendment.

Mr. President, I think we have probably reached about as far as we are going to go this evening. We are examining in some detail Senator Coleman's amendment, and we would like to try and see if we can't work that out through the evening. There is one aspect of it I would like to understand more completely in terms of whether it deals with emergency services and others. So I think we probably, for all intents and purposes, have gone about as far as we can go tonight.

We have a number of amendments. We are very much aware that we have the supplemental that will be here. We have been told so by the majority leader. But we will have a good opportunity in the morning through noontime and into perhaps the early afternoon to continue our progress. We have made good progress today. I thank all the Members for their cooperation. We have several amendments which are lined up. We will probably start with Senator Dorgan's amendment tomorrow. We have a number of amendments, including Senator Cornyn's amendment which he offered this evening, and there will probably be side-by-side consideration sometime in the late morning. There are a number of other amendments that have been brought to our attention. We are in the process of prioritizing those and notifying their sponsors to make sure they can be here in a timely way so we will have a productive time and as few quorum calls as possible.

As I mentioned, we will continue on the Cornyn amendment and the Dorgan amendment. There is a Feingold amendment on the study of refugees; a Sanders amendment, scholarship for Americans in connection with the H-1B program. There are some of the family amendments which Members have talked with us about and the McCain amendment as well. So we have talked to most of these Members, and we will do as much as we possibly can to move these along.

They are all important matters. I think, as far as today is concerned, we are very grateful for the cooperation we have had from all Members. I think we have made some important progress. We look forward to making further progress in the morning.

I see my colleague here who would like to address the Senate on other matters. We look forward to further consideration of the underlying legislation tomorrow.

Madam President, I have two purposes for rising at this point. One is to speak to the amendment offered by the distinguished Senator from Iowa and then to speak substantively, as we get into a full debate of comprehensive immigration reform, to lay out some parameters I hope all of our colleagues will consider.

Let me start off with the Grassley amendment. I rise in strong opposition to the amendment. It abolishes the last--underlined--remnant of judicial review on visa revocations. During the course of this week and the week when we come back, we are often going to hear terrorism invoked as the reason we must act in certain ways. Some of those ways ultimately undermine the essence of the Constitution of the United States and the equal protection clause. I think it is a false choice to be put in a position between the suggestion of terrorism and the suggestion that we should undermine the Constitution. I raise that as a warning flag now, as we look at all other amendments that are going to be coming. We are going to hear a wide range of reasons why we should dramatically change judicial reviews, the essence of protection under the Constitution. I hope our colleagues will understand that is a slippery slope to go down.

I hope we are not going to undermine due process, rule of law, and judicial review, because they are not just limited to suggestions on terrorism. Maybe if they were limited only on that, we could consider supporting such amendments. But it is eliminating judicial review totally, as it relates to visa revocation.

Right now what is the law? Right now judicial review of a visa revocation is already severely restricted. In fact, visa revocations are insulated from any judicial review when the visa holder is outside of the United States and the consular officers--these are our representatives abroad--have exceptionally broad authority to make revocation decisions. If you are outside the United States, you are not even coming. You don't even get a chance at judicial review. Let's make that clear.

The only area where limited judicial review of visa revocation remains available is with respect to individuals who are in the United States and then are placed in removal proceedings as a result of the revocation. Then judicial review is permitted in the context of those removal proceedings, if revocation is the only ground for that removal.

This is a critical check on Government authority to make arbitrary decisions. It is vitally important to allow the court review of removal proceedings because a person's ability to remain in the United States is at stake. We know immigration authorities have on more than one occasion made a mistake in the person's case or the person may have compelling circumstances that warranted consideration by a judge. We have seen cases time and time again that have so dictated and have said the Government is wrong, the individual is right. This would nullify that opportunity totally. This amendment would eliminate the last remaining remnant of judicial review.

I am happy to yield.

Madam President, I appreciate the question and description from the Senator from Massachusetts. In fact, it is clearly one element--one very dramatic element--of the Government acting wrongly: deporting someone who had every legal right to be here in this country--making that mistake, and then, realizing they made a mistake, are now trying to find that individual whose life has been turned upside down.

In the process of doing that, under the amendment of the Senator from Iowa, they do not even have a chance to go to court. So the human faces we are talking about here are real. That is not about terrorism.

Now, let me give you another example. The Senator from Massachusetts gave a very vivid one. Let me give you another example of what happens when we do not permit basic due process as a part of our law.

This amendment would eliminate judicial review for all visa revocations unnecessarily, and it unduly expands the already broad discretionary authority of the executive branch. Let me

give you an example--a different case. A foreign government that wants to rein in one of their dissidents provides false information to the U.S. consulate that leads the consul to revoke the visa. This is someone who is speaking against maybe a totalitarian regime, a dictatorship, people who are oppressing people's human rights, but they are here in the United States. They got a visa, and they are here speaking out. That government wants to make sure that person can no longer speak out, so they give false information to the consul, and the consul reviews it and makes a factual determination: Do you know what. This looks right. Let's revoke the visa.

That person, that dissident, struggling to make a difference in the lives of people in that country--we want to see people like that challenging their own systems; we want to see people like that fighting in their own countries so we never have to send our people abroad--that person does not even have one chance to make the case in a court of law that what is being said is false.

Exposing individuals in this country to such arbitrary and capricious action is un-American. We should be striving for more balance and more transparency, not less.

Let me say there is another case, a case decided here in the United States in June of last year, where a U.S. Federal judge issued an order soundly rejecting the Government's contentions against an individual-- the same type of case that would not, under this amendment, have access to this type of judicial review where this Federal judge determined that the Government was wrong, the individual was right.

What was the individual saying? He was saying his point of view, which separated him from the administration's point of view. Because it separated him from the administration's point of view, they revoked his visa. The judge held the decision was not a due authority, a use for the revocation of the visa, and that person was allowed to stay simply because they were expressing their points of view different from this administration.

Is that what we want to do? Eliminate the possibility for someone to be able to go to court and say: ``I am being hushed because I have a different point of view. My visa is being revoked with not one chance to go to court''?

By the way, finally, if we are going to talk about terrorism, if I have a terrorist in my possession, under other provisions of law I do not want to deport them. I want to arrest them. I want to throw them in jail. I want to make sure they do not get out of the country to do harm back to this country. Why would I want to deport them? I want to arrest them. I want to jail them under other provisions of law. I want to prosecute them. I do not want to let them go free so they can try to do harm again to the United States.

This amendment actually works to the opposite of our national security interests. I urge my colleagues to oppose it.

Now, let me speak more broadly about the overall immigration effort. Since I have already heard some of the commentaries on the floor, I think it is important for us to have a framework of where this discussion, I hope, will go in a civilized fashion that understands the better angels within us.

From the congressional district I had the honor of representing for over 13 years in the House of Representatives, one can see the Statue of Liberty. You can almost touch it. Ellis Island has been a gateway to opportunity for millions of new Americans. For me, it is a shining example of the power of the American dream, a place that launched millions down their own road to success.

As Americans listen to this debate, I hope they understand and are honest with themselves--whether their family was part of the men and women who made the voyage on the Mayflower or part of the millions who stepped off of Ellis Island or part of those who were brought to this Nation against their will or, if like my own parents, they came to this country fleeing tyranny and searching for freedom--we all have a connection to immigration.

America has a proud tradition as a nation of immigrants and a nation of laws. History is replete with examples of the United States of America being a welcoming Nation. But, unfortunately, very often the public dialog through the years has been less than welcoming. Over the decades, the influx of immigrants of various ethnicities has caused concerns and, in many cases, heated comments against such immigrants to our Nation. In some cases, there were even laws enacted to limit or ban certain ethnic groups from being able to come to the land of opportunity. Let's remember some of this history so we do not repeat it again in these debates.

Before the American Revolution, Founding Father Benjamin Franklin wrote of the influx of German immigrants to Philadelphia:

Those who come hither are generally the most stupid of

their own nation.

Henry J. Gardner, the Governor of Massachusetts in the middle of the 19th century, saw the Irish as a ``horde of foreign barbarians.''

In 1882, Congress enacted the Chinese Exclusion Act, which made it nearly impossible for additional Chinese to enter America. The law was not repealed until 1943, in the middle of World War II, when the United States and China were allies against Japan.

In the early 1900s, H.G. Wells, a British novelist, stated that the arrival of Eastern Europeans, Jews, and Italians would cause a ``huge dilution of the American people with profoundly ignorant foreign peasants.''

Congressman Albert Johnson, coauthor of the Johnson-Reed Immigration Act of 1924, which severely restricted immigrants from Southern and Eastern Europe, and entirely prohibited East Asians and Asian Indians, stated that:

Our capacity to maintain our cherished institutions stands

diluted by a stream of alien blood, with all its inherited

misconceptions respecting the relationships of the governing

power to governed. . . . The day of unalloyed welcome to all

peoples, the day of indiscriminate acceptance of all races,

has definitely ended.

Finally--to give you a sense of some of these things that have been part of our past--a 1925 report of the Los Angeles Chamber of Commerce stated that Mexicans are suitable for agricultural work ``due to their crouching and bending habits . . . , while the white is physically unable to adapt himself to them.''

That was in 1925.

These are just a few statements from the past that have taken issue with and criticized the relatives and forefathers of various segments of our Nation's population today.

We must all remember that just in the last Congress the House of Representatives passed H.R. 4437, better known as the Sensenbrenner bill. Beyond the heated rhetoric that existed during the debate on that legislation, the bill itself was shortsighted and even more mean spirited and would have made felons out of anyone who was here in an undocumented status. That bill would have also criminalized citizens of the United States through a much broader definition of smuggling that would have allowed the Government to prosecute almost any American who had regular contact with undocumented immigrants. Luckily, that did not pass.

But today we continue to hear across the landscape of the country hateful rhetoric used to polarize and divide our country on this issue. But we must never allow ourselves to buy into the rhetoric. We must never subscribe to the policies of fear and division, driven by xenophobia, nativism, and racism.

The responsibility is on all of us--not just on Members of Congress, but everyone in this Nation. We must reject the rhetoric of hatred, division, and polarization. We must demand a comprehensive immigration policy that does not denigrate or demonize, but is tough, smart, fair, and humane.

However, on this issue, we must be completely honest with ourselves. Our country's immigration system is unarguably broken. In light of these failures, we must enact tough, smart, and comprehensive immigration reform that reflects current economic and social realities, respects the core values, I hope, of family unity and fundamental fairness, and upholds our tradition as a nation of immigrants.

In the absence of Federal legislation, what is happening is many local governments in my State of New Jersey and, for that matter, across the Nation are passing ordinances to address issues surrounding undocumented immigration in their communities. Unfortunately, many of these ordinances

violate constitutional equal protection guarantees and create divisions in communities that did not exist.

In addition to the moral imperative, our society would greatly benefit economically if we enacted comprehensive immigration reform. Such reform would allow undocumented immigrants to come out of the shadows and fully pay their taxes, ensuring accurate census counts, which translates into equitable funding levels for programs and schools. Additionally, we can reduce law enforcement demands since the need for day laborers, forged documents, and driver's licenses, along with the use of exploitation and human trafficking would largely be shut down.

As to those who don't come forward when such an opportunity is presented, we would be focused on asking: Why are they not coming forward? We would be able to determine who is here to pursue the American dream versus who is here to destroy it.

We need to aggressively curtail unauthorized crossings at the border, protect both undocumented immigrants and American workers from corporations exploiting undocumented labor, and provide a pathway for immigrants to earn--and I repeat: earn--permanent residency in order to ensure our immigration system is safe, legal, orderly, and fair to all.

Our goal should be neither open borders nor closed borders but smart borders. The specter of terrorism in a post-September 11 world creates an even greater imperative for us to succeed in this endeavor. The underlying bill has a whole host of triggers that go to the very heart of those elements.

We have all seen some of the consequences. We have seen lawlessness along the borders. Crime in our border communities is increasing and overwhelming local law enforcement's ability to address these challenges. So-called coyotes, or human smugglers, charge thousands of dollars to bring people into this country, creating a multimillion dollar industry for organized criminal organizations to exploit and fuel their other illegal activities. In fact, several reports have indicated there is more money in smuggling these undocumented immigrants into our Nation than smuggling drugs.

However, history proves it is not enough to rely on enforcement alone, even though I am totally for the enforcement. Over the past two decades, the Federal Government has tripled--tripled--the number of Border Patrol agents and increased the enforcement budget tenfold-- tenfold. Yet, despite tripling the Border Patrol and increasing the budget tenfold, these efforts have yet to stop those who have either crossed the border or overstayed their visas. So it is about border protection, but it is also about a more comprehensive effort to make sure you deal with the push-and-pull factors of immigration.

Securing our borders is the first step to ensure an orderly, fair, and smart immigration system, but by no means is it adequate in isolation. We must also crack down on companies that illegally hire undocumented workers--something that is long overdue. I know under the Clinton administration, employers were held accountable for hiring undocumented workers, as 417 businesses were cited for immigration violations in 1999 alone. In contrast, a mere three--three--employers were issued notices of intent to fine by the Bush administration in 2004 for similar violations, making it 22 times more likely for an American to be killed by a strike of lightning in an average year than prosecuted for such labor violations.

So much for enforcing the existing law.

What happened in the span of those 5 years? What happened? Did companies suddenly decide to start abiding by the law by not hiring undocumented immigrants? No. The truth of the matter is, similar to border enforcement, this administration made a conscious decision to look the other way in order to once again serve the interests of corporate America to the detriment of average American citizens.

That is why I support stronger immigration enforcement not only at the borders but at the workplace. Unscrupulous companies that intentionally hire undocumented immigrants do so because they know they can exploit these people without fear of retribution. They know this because undocumented immigrants are forced to hide in the shadows of society and subsequently have no avenues to report labor abuses. Not only does this hurt the immigrant being exploited, it also directly impacts American citizens who must compete in the market with exploited labor. We must immediately end these abuses and in doing so create an equal playing field to ensure that the wages, benefits and health and labor standards of the American worker are not undercut.

While securing our borders and enforcing strengthened workplace employment laws will enable us to regulate the influx of new immigrants, it does nothing to solve our current dilemma of an estimated 12 million undocumented immigrants who currently reside in the United States. That is why our immigration policy must be about more than simply enforcement. It must be about providing a safe, orderly, timely, and legal process that deals with the economic realities of our time.

So in order to make our immigration system overall workable, we must be practical, fair, and humane in dealing with the estimated 12 million undocumented immigrants living in the United States. To do otherwise would require the most massive roundup and deportation of people in the history of the world--in the history of the world. I believe this is both highly unlikely and impractical on many levels, including due to both budgetary and economic impacts on the Nation and its economy.

Such a mass deportation of the undocumented population, even assuming 20 percent could leave voluntarily if such a policy was enacted, would cost us over $200 billion over a 5-year period, according to the Center for American Progress. That is not going to happen. So fully securing our borders is impossible unless efforts to include a temporary guest worker program and a path to earn residence for undocumented immigrants is part of the overall reform.

This solution will encourage immigrants to come out of the shadows and legalize their status. By doing so, we will learn who is here to seek the American dream versus who is here to destroy it through criminal or terrorist acts. Most of the people who cross our borders come looking for work, as many of our ancestors did. These immigrants contribute to our economy, provide for their families, and want a better life for their children.

Let me say I am, first and foremost, in favor of hiring any American--any American--who is willing to do any job that is available in this country today or tomorrow, but let's remember the jobs we are talking about. The fruit you had for breakfast was picked by the hands and bent back of an immigrant laborer. The hotel room and bathroom you use in travels through the country is likely cleaned with bended knee by an immigrant worker. The chicken you had for dinner yesterday was likely plucked by the cut-up hands of an immigrant laborer. If you have an infirmed loved one, their daily necessities are probably being tended to by the steady hands and warm hearts of an immigrant aide. Let us remember that.

So we have to create an equal playing field to ensure that the wages, benefits, health, and labor standards of the American worker are not undercut. But it is also in our best interests to have these workers participate and contribute to our society, especially when we had a 4.5-percent unemployment rate in April of this year and a declining ratio of American workers to retirees.

By coupling enhanced enforcement efforts with new immigration and labor laws, we will not only regulate how workers come into the country but finally give our border and law enforcement agencies a fighting chance to fulfill their duty.

Now, much of what the underlying bill does meets some of these challenges, and I respect those elements. But I wish to talk about one very compelling issue that I believe it does not meet: the importance of family. I said throughout the negotiations that were had, with a massive, complex bill such as this one, the devil is in the details. There are a number of details in this deal that would create an unfair and, in my mind, impractical immigration system, undercutting the more sensible provisions.

This is especially true when it comes to the issue of family. The deal struck virtually does away with a provision for family reunification which has been the bedrock of our immigration policy throughout our history. This idea not only changes the spirit of our immigration policy; it also emphasizes family structure, and all without a single hearing on the issue of family and our immigration system by the Senate Judiciary Committee, either in the 109th or the 110th Congress.

Under this bill, they change the fundamental values of our immigration policy by making an advanced degree or skill in a highly technical profession the most important criteria--the most important criteria--for a visa. This Nation has been built by immigrants who came here to achieve success, but the deal tilts toward immigrants whose success stories are already written. They are already written.

Family reunification will be deemphasized under this deal, serving to tear families apart. From a moral perspective, this undermines the family values I hear so many--in different contexts--so many of my colleagues talk about all the time.

As the late Pope John Paul II said:

The church in America must be a vigilant advocate,

defending against any unjust restriction of the natural right

of individual persons to move freely within their own Nation

and from one Nation to another. Attention must be called to

the rights of migrants and their families and to respect for

their human dignity.

Practically speaking, a breakdown of family structure often leads to a breakdown of social stability. I took it to heart when President Bush said: ``Family values don't end at the Rio Grande,'' but this agreement, similar to his proposal before it, belies those words.

Yet here we are with a piece of legislation which the White House promoted that undermines the very essence of that. Even under a new point structure that is envisioned under the bill, it seems to me that the essence of family should be given more weight and points within the context of a whole new process of how we are going to move our immigration system forward. Family, I would hope, even under a new system, is a critical value, in our country.

I would like to take a little time to get into some of the details of this agreement and how they would impact families.

Under current law, foreign-born parents of U.S. citizens are exempt from green card caps when applying for legal permanent residency as they fall in the immediate relatives category. Now, remember, this is someone--a U.S. citizen already--a U.S. citizen or a U.S. permanent resident who has a right--who has a right--to claim their relative. In this case, I wish to talk about parents. Unfortunately, the agreement removes these individuals from the immediate relative category and sets an annual cap for green cards for parents of U.S. citizens at 40,000. Last year, 120,000 visas were given to such parents, and the annual average number of green cards issued over the past 5 years to parents is 90,000, so this bill would slash required green cards by more than half for a U.S. citizen to be reunified with their mother or father. So we are automatically creating a new backlog, even though the bill is intended to end such family backlogs.

Another area that would be negatively impacted under the deal is the spouses and minor children of legal permanent residents of the United States. The bill before us does not lift the visa cap on the spouses and minor children of lawful permanent residents; it actually lowers it, ensuring that backlogs continue indefinitely. The separation is not only immoral in my mind, but it exacts an economic toll, as lawful immigrants who are productive members of society move to rejoin their families. Moreover, unification with immediate family members gives rise to an undesirable incentive to break the law and live in the United States illegally. Families want to migrate to each other, and that is a natural, human instinct. We undermine that in this respect.

Now, the so-called ``grand bargain'' also moves us to a point-based immigration system which would turn current immigration on its head--a system that hasn't received any hearings by the Judiciary Committee. Yet, in the agreement, we are moving to a point system that is geared toward people with degrees who are highly skilled or educated. Fine. We can have people who are highly skilled and educated as part of the equation, but in my mind it shouldn't ultimately undermine dramatically the ability of families to have a fighting chance. In fact, in the point system that is contained in the bill, families would receive no points at all--no points at all, none--unless the applicant has obtained at least 55 points through other elements: employment, education, language. So much for family values under that system, in my mind.

In addition, if the applicant meets the 55-point threshold, they would be eligible for a maximum of 10--a maximum of 10--additional points; that is out of 100 maximum points. I guess that some who preach family values don't believe that family should count for more than 10 percent--10 percent.

Now, this legislation also curtails the ability of American citizens today, permanent residents, to petition for their families to be reunified here in America.

As I mentioned earlier, there is a family backlog of people who have applied for legal permanent residency who are claimed by U.S. citizens. This legislation, as currently drafted, does away with several of the family categories such as adult children of a U.S. citizen and lawful permanent residents and siblings of citizens. These categories will be grandfathered in and dealt with as part of clearing the backlog during the first 8 years but only if you filed your application before May 1 of 2005. What is the consequence of that? The consequence of that is over 800,000 people who have played by the rules, applied under the normal process, didn't come across the border, didn't violate any law, did the right thing, that all of those who did all the right things but applied after that date, will not be cleared as part of the family backlog. They lose their chance under this law.

More importantly, it vitiates--it takes away--the right of the U.S. citizen to have them claimed because they lose it. They have a petition pending under existing law, and yet that petition is gone with the flash of this bill.

So the legislation, as currently drafted, says that if you legally apply for a visa after May 1, 2005, you have to compete under an entirely new system. It is an arbitrary date that was picked out of the thin air.

Let's think of how fundamentally unfair that is. Imagine you are a lawful, permanent U.S. resident. You have fought for your country, you have shed blood for your country, and in some cases, you may have even died for your country. In fact, a noncitizen, a legal permanent resident of the United States, Marine LCpl Jose Antonio Gutierrez, originally of Guatemala, was the very first, the very first U.S. combat casualty in the war with Iraq. Had he not been a combat casualty under this bill, he would not have been allowed to claim his family. If this bill moves forward the way it is, these legal permanent residents are also not only--there are thousands of them in the Armed Forces of the United States, and they are protecting our airports, our seaports, and our ports. They risk their daily lives in Afghanistan, Iraq, and other places around the world to protect us here at home, yet we would do away with their right to petition to have their sister or their brother come join and live with them in America. Under this bill, you lose that right if you file after May 1, 2005. It is hard to imagine that one would have that right taken away from them.

Here is another case for you to consider. You are a U.S. citizen. You have paid your taxes. You may have served your Nation. You attend church. You make a good living. You are a good citizen. You have petitioned to have your adult child come to America, but you did so after the date of May 1, 2005. Under this bill, that U.S. citizen loses their right. However, those who are undocumented in the country after May 1 of 2005, they actually get a benefit under the bill. So if you obey the law, follow the rules, do all the right things, you are a U.S. citizen, paid your taxes, maybe even served your country in the Armed Forces, doing everything you should do, you lose your right to claim your relative under the existing law and be part of the backlog, but the person who came in an undocumented

fashion over the border, they actually will get a benefit as of January 1, 2007. It seems to me that the legal permanent resident, the U.S. citizen, should have at least the same date as those who have not followed the law and the rules. It is hard to imagine, but it is true.

So these are a few of the shortcomings contained in the bill we are moving forward. This deal would have prevented my own parents, a carpenter and a seamstress, from coming to this country. They wouldn't have qualified under this point system. I would like to think that they and others whom I have heard about around this Chamber--I have heard so many stories from my colleagues in the Senate and formerly in the House, talking about their proud history.

Their parents would not have been eligible to come to this country under this bill. I would like to think that, on both sides of the aisle, they have contributed to the vitality of this Nation. I have listened to so many of the stories of our colleagues, and I know many of their parents never would have qualified to come to this country under this bill. It seems to me a new paradigm could have been structured where family values and reunification have more of a fighting chance than under the framework agreement that we consider.

The story of the legislation is not finished. We still have the historic opportunity this week to craft tough, smart, and fair immigration reform. It is my intention, starting, I hope, later today, through a series of amendments, to get to the heart of the issues I have mentioned, to change and to improve this deal. I know many of my colleagues are committed to the same issues of practicality, fairness, and family values, and I will work with them to turn this unworkable deal, in those respects, into sound policy we can all support.

As we have throughout our Nation's long and proud history, I believe we can create a pathway to the American dream for those who contribute to our Nation and allow them to fully participate in our economy and our society. As the President told Congress in this year's State of the Union speech: Let's have a serious, civil, and conclusive debate, so you can pass, and I can sign, comprehensive immigration reform into law.

It is a rare moment, but I agree with the President. Reform is long overdue. I want to just say that I have the greatest respect for the Senator from Massachusetts in his advocacy in this regard. I look forward to trying to--even though he may not be able to support some of these things as part of his commitment to a grand bargain--change it in a direction that we can all be proud of. But for him, we probably would not be on the Senate floor debating this issue today, or in the past, and I admire him greatly in that respect.

However we got here, from wherever we came, we know we are in the same boat together today as Americans, and together I hope we can make this journey a safe, orderly, and legal process that preserves and fulfills the American dream for all, that upholds the right of U.S. citizens to seek the reunification of their families. It takes those who serve our country and who are not U.S. citizens yet and gives us the right to say: You fought for America, you may have been wounded in the process. You have done everything we would want of any citizen. Your right to make a simple claim to have your family reunited for you will not be snuffed out by this legislation.

If we do that, this process deserves our respect. I hope this preserves the Constitution, as well as the due process of law that makes America worthy of fighting for and dying for--the Constitution and the Bill of Rights. When we seek to erode and undo it, we undermine the very essence of America's greatness. Those are our challenges in this debate and also our opportunities.

I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I wish to rise briefly to speak to the amendment of the Senator from Texas. I think I caught him describing it as a ``technical one.'' At first blush, having just seen it for the first time, looked at it and having seen the intersection of what he seeks to do throughout title II of the bill, it is far from technical; it is very substantive. I appreciate that he has very substantive positions that might be different from mine, but they are very substantive, they are not technical. They go, in some cases, to the heart of due process for individuals, and they go to the heart of undoing what some cases in the appellate division and beyond have decided is the appropriate law of the land.

I just wish to start off by saying that I certainly hope this amendment will not come to a vote tonight because I think all of us need to understand the nature, the scope, the breadth, the width of what, in fact, is being offered here, which I truly believe is far more than technical. So I just wanted to, so to speak, wave my saber early for the distinguished Senator from Texas and say that I am sure he is going to get a vote, but I will have to object if there is any intention to seek a vote tonight. You have to take all of the 12 pages that were just presented, intersect them, and see how they affect different sections of the underlying statute, and those have real meaningful consequences at the end of the day. I might agree with some; I might strongly disagree with others. So I just wanted to make it clear to the body that, from my perspective, it is a little bit more than technical.

I yield the floor.

Madam President, I appreciate the offer from the distinguished Senator from Texas, and I certainly hope we will take his offer because I would have to object if we were

to try to proceed tonight to a vote on his amendment. I think his amendment is important. I think it has real consequences. There are real consequences of substantive law, there are real consequences of due process, and there are real consequences of equal protection. So these are major legal issues which affect potentially millions of people.

I appreciate the spirit in which he has offered it. I appreciate him saying he is more than willing to give time. I hope the bill managers would pursue that course of action and make sure that a vote on this does not take place until sometime tomorrow so that we can digest all of this and have the appropriate debate because legal protections are very important in the context of what we are doing.

I yield the floor.

Madam President, I thank and applaud the distinguished Senator from Connecticut for soon offering this amendment. I am proud to join him in this effort. I want to build upon a couple of things he said as to why this amendment should be accepted, not voted but accepted.

First, I have listened to a new definition of what a nuclear family is. It is amazing. I have heard so many speeches over my 15 years in the Congress about family. All of a sudden, the nuclear family doesn't involve mothers and fathers. All of a sudden it doesn't involve children, just because they happen to be over the age of 21. All of a sudden brothers and sisters are not part of a nuclear family.

What is a nuclear family? Certainly as people travel throughout the country making speeches about nuclear families--about families period-- they certainly mean their parents, people who gave life to them; certainly they mean their children, individuals to whom they gave life; certainly, they

mean their brothers and sisters. I have been amazed at some of the comments I have heard on the floor of the Senate about what is not nuclear family.

What else is this about? This is about the right of a U.S. citizen to apply for their mother and father. That is what the amendment of the Senator from Connecticut is all about, the right of a U.S. citizen already to apply. Do everything right. Pay your taxes, serve your community, serve your country, you want to have a right, which you have under the law today, to simply bring your father and mother, or either one depending if they are not both alive, the opportunity to be reunited with you, a nuclear family, be reunited with you because you need them, be reunited, as the Senator from Connecticut says, because you have a child and now there is the opportunity to have the love and care a grandparent can offer, to create a sense of family, which is the essence of stability in our communities. Of any faith, it is the very core.

What we see in the underlying bill is an elimination for the most part, a significant right of U.S. citizens dramatically reduced. The Senator's amendment actually will allow not for everybody. It still will have a certain degree of limitation because last year we gave 120,000 visas to parents. The Senator--which I think is reasonable--has looked at the historic average, and this says this is the amount that at least generally has taken place in family reunification of a U.S. citizen claiming their parents.

When I hear chain migration, how dehumanizing. Chain migration, it makes me think of a bunch of paper clips hanging together. Chain migration, is that what we have come to? Parents are part of a little chain? There is this concern that they will be able to claim someone else. Who can they claim if they are being claimed by their son or daughter? That's it. You can't claim anybody else. Chain migration. How easy it is to try to take something that has so much significance in our lives and dehumanize it. Chain migration? No, this is about family reunification. It is the core of what our society is all about. It is what we hear speeches about all the time in terms of strengthening families. Families will be strengthened when they are together, not torn apart.

In the universe of visas, this is very small, but it has a big consequence. Therefore, I salute the Senator from Connecticut for offering the amendment. I am proud to join with him when he offers it at the appropriate time. I hope we are not going to now say that parents are not part of the nuclear family.

I yield the floor.

Mr. President, I thank the manager of the bill. I want to say a few words on the bill in general and then move to an amendment, if I might.

I am a supporter of this bill. It is not a perfect bill. I think it is easy to tell the people on the far right of the political spectrum and the far left of the political spectrum are not happy with this bill. But what this bill accomplishes--like nothing I have ever seen in my 15 years in the Senate--is that it is a piece of work that is a product of people on both sides of the aisle sitting down and trying to work something out that can get 60 votes in this Chamber and move on, and not be a useless piece of legislation, but rather one that offers a kind of comprehensive reform that has definition.

People use the word ``comprehensive,'' and nobody really knows what they are talking about. But in the case of this bill, anyone who carefully looks at the bill will understand what the word ``comprehensive'' means because the word means addressing all sides of the immigration issue, taking borders that are broken and repairing them, stabilizing a border with additional border patrol, prosecutors, detention facilities, and also strengthening interior enforcement.

Three major sections--called titles--of this bill really deal with enforcement of our borders, enforcement of the interior. Then there is the question of how do you deal with the 12 million people who have been here for some time illegally, most of whom are engaged in legitimate, bona fide work. How do you deal with what has developed to be an entire subterranean economy in this country, with its own special shops, stores, and special points of congregation for work? How do you remove the element of fear that drives all of this further and further underground?

The more the ICE agents--formerly INS--pick up people in the workplace for deportation, the more you see the inequality and injustice--there was one family, about a week ago in San Diego, by the name of Munoz, who had been here for a long period of time. They both worked and raised three children who were born in this country. They owned their home and their furniture.

Well, in came the agents, who picked up the parents. The parents were out of the country and the children were left. The home was sold and the furniture was gone. And this is a family who had the piece of the rock of America. They were contributing to the economy of America. But they were destroyed.

Many of us in this body believe you cannot find and deport 12 million people. My State of California has the largest number of people living in undocumented status, which is estimated to be in the vicinity of 3 million people. They are a vital part of our workforce. They are 90 percent of California's agricultural workforce, which is the largest of the 50 States. They also work in service industries. You see them in hotels and in restaurants, and you see them in construction and housing. So they have become an indigenous part of the California workforce.

This bill puts together reforms in immigration with a process to bring those people out of the shadows. What has bothered me over these days, as I listen to the television and read in the newspapers, is I hear the drumbeat, and I even see small signs on automobiles that simply say ``amnesty.'' This bill is not amnesty.

What is amnesty? Amnesty is the categorical forgiveness of a crime, an event, or whatever the issue may be. This does not do that. This sets up a roadmap, which is complicated for someone who wants to remain in this country, to be legal, to be able to work legally, and perhaps even someday get a green card, and maybe someday further off, become a citizen.

Well, there is an 8-year road created in this bill. There are fines of $5,000 plus an additional $1,500 fee for processing. There is a touchback, which may be changed in a further amendment, but at this stage in the debate it is this: If during that 8-year period the individual who has now achieved this Z visa, which gives them the right to work in this country, decides they want to pursue a green card, they would go to their country of origin, to the nearest U.S. consulate, and with the Z visa they can come in and out of the country at will. They don't have to stay in their country of origin. What they would do is file their papers. They would submit their fingerprints, and they would turn around and come back into the United States. Then, electronically, the evaluation would be done after the present line for green cards expires. Everybody waiting in line legally for a green card gets it. They would have the opportunity to get a green card. This is estimated to be between 8 and 13 years. During that period of 8 years, they would have to re-up, come in and prove that they have done the things the bill requires them to do. This is not an amnesty.

Now, the other part is that there are changes made in what is called chain migration. Currently, one person on a green card can bring in any number of family members. This is changed to the nuclear family. The person holding the green card can bring in their spouse and their minor children. That future green card, after the 8 years--after the list is expunged, future green cards would be granted on the basis of the point system, which deals with merit in the sense of the availability of job, work, the educational attributes of the individual, the family, and other things. I think it is as close as we are going to get to solving this problem and creating the interior enforcement, the border stability, and the laws that are necessary to secure the rule of law when it deals with immigration.

Mr. President, many Senators from both sides of the aisle worked long hours over the past several months to address immigration reform. And through the process of negotiation and compromise a tough, fair, and workable bill has been crafted.

The bill before the Senate provides solutions to restore the rule of law, fix our broken borders, protect our national security, and bring the 12 million people now living illegally in the U.S. out of the shadows.

I believe this bipartisan bill is a strong first step toward addressing illegal immigration in a fair and balanced way.

Immigration Enforcement

The bill is predicated on several fundamental principles. The first is that we must control our borders and protect our national security.

The bill ensures that before a single temporary visa is issued, or a single undocumented alien in the United States can earn their green card, several important ``triggers'' must be met--``triggers'' that show the Federal Government is taking a hard stance on enforcing the law and enforcing the border. The triggers include:

Installing at least 200 miles of vehicle barriers as well as 370 miles of fencing, 70 ground-based radar and camera towers, and deploying 4 unmanned aerial vehicles along the southern border; detaining all illegal aliens apprehended at the southern border, rather than continuing the ``catch and release'' policy; establishing and using the new Employment Verification system to confirm who can work in the United States legally and who cannot, and hiring 3,500 new border patrol agents to increase the total number of agents on the border from 14,500 to 18,000.

Then later, after the first 3,500 border patrol agents are hired, the bill requires that an additional 10,500 more border patrol agents are hired. So, the total number of border patrol agents will increase from its current level of 14,500, to 18,000 under the trigger, to eventually 28,500 by the end of five years.

The bill also requires hiring 1,000 new immigration agents, 200 new prosecutors, and new immigration judges and Board of Immigration Appeals members.

Next, the bill increases the penalties for people who illegally enter the U.S. or who overstay their visas.

Under current law, if an individual enters the U.S. illegally or overstays their visa they are barred from returning to the United States for three years, and could be barred for up to 10 years if they stayed in the U.S. illegally for over a year.

However, under the bill, if an individual is in the United States illegally the penalty is increased so that the person would be barred forever--and never be allowed to come to the United States.

The bill also includes provisions to fight passport and visa fraud based on the bill that Senator Sessions and I introduced this year.

These new provisions would punish people who traffic in 10 or more passports or visas, and increase the penalty for document fraud crimes to 20 years.

By including these tough new enforcement measures, this bill goes a long way to protecting our borders and takes a hard stand against individuals who violate the law.

Employment Enforcement

The bill also takes a hard stand against employers who violate the law and hire illegal immigrants.

For too long, the administration has not enforced the laws on the books, and the negligible fines for hiring illegal aliens were just a part of doing business--this bill changes that.

Under current law, an employer can be fined $250 to $2,500 for hiring an unauthorized worker; the bill increases that fine to $5,000.

The bill also increases the penalties for employers who repeatedly violate the law and hire illegal aliens. Under current law, the highest penalty that can be assessed against an employer is $10,000 for a repeat violation; this bill imposes a new larger fine of $75,000 for repeat violations.

The bill creates a new employment verification system--mandating that within 3 years, all employers must verify with the Government that all of their employees, foreign and American, are who they say they are.

This new system will require employers to submit each employee's name and social security number or visa numbers to the Department of Homeland Security. DHS will then confirm whether the employee is in fact legally allowed to work.

If the DHS says the employee is not legally allowed to work or his legal status is in question, the employee then has 10 days to challenge the Government's conclusion, and while the employee is taking steps to contest his rejection, the Secretary must extend

the period of investigation and the employee cannot be fired.

This new verification system should ensure that individuals who are hired by American businesses are actually legally permitted to work in this country.

Grand Bargain

Once the security and enforcement measures were established, the negotiators sought to devise a pragmatic solution to deal with the approximately 12 million illegal immigrants currently living in the United States.

This solution to this issue is what has been referred to as ``the grand bargain.''

In order to bring Democrats and Republicans together a compromise was adopted that creates a new ``Z'' visa that will establishes a strict path for those individuals who are already in the United States to be able to earn a legal status.

In exchange, the bill reforms the current immigration system and eliminates policies that allow for ``chain migration.''

Practical solution to 12 million now here

With respect to the first part of the grand bargain, I firmly believe we have to develop a practical solution to the deal with the 12 million illegal immigrants already in the country.

While some have complained that all 12 million undocumented aliens should be deported, such a solution is not practical nor is it reasonable--for many of those individuals and families who have become integrated into the fabric of their communities deportation would be a severe outcome.

For example, in my home State of California, the Munoz family from San Diego is facing exactly what a policy of absolute deportation would mean.

In 1989 Zulma and Abel Munoz came to the United States seeking medical care for their infant son who was sick--sadly, despite their efforts, 2 months later he died. At the time, Mrs. Munoz was pregnant with her second child, a girl, and a medical worker who had helped her son urged Mrs. Munoz to stay longer in the United States to make sure their infant daughter received proper care. They took that medical workers advice, and have remained in the United States since then. Both parents found work; they bought a home, and they repeatedly tried to legally adjust their status, but their attempts failed.

Then last month, at 7:30 p.m. on a Thursday night, Mrs. Munoz was arrested and led away from the house in her pajamas. Later when Mr. Munoz returned from Home Depot, he was handcuffed and taken away-- leaving behind their three children, now 16, 13, and 9.

There are many families, like Mr. and Mrs. Munoz, who are not criminals, who have lived and worked in their communities for years, and who are productive members of society, but who are also in the U.S. illegally.

Families like these should be given the opportunity to come out of shadows, to earn a legal status, and to eventually apply for a green card--and that is what this bill provides through the Z visa program.

Let me be clear, this is not an amnesty. For those who say it is, I think it is important to define what amnesty means. Amnesty is automatically giving those who broke the law a clean slate no questions asked. This bill does not do that.

Instead, to qualify for a green card each individual must wait until the backlog has been cleared--approximately 8 years--and during that time these individuals and families would need to pass a national security check; apply for a Z-visa that allows them to stay in the U.S. legally; work or get an education; pay taxes; learn English; pay a fine of $5,000, plus processing fees of at least $3,000; not commit crimes; reapply and undergo additional background checks; return to their home country for a ``touch-back'' for at least a day, to submit their application, provide a fingerprint , biographical and biometric information; and earn enough points under the same merit system that all future applicants will use.

This is not amnesty. This is not simply giving a green card to anyone who is in the country illegally. Instead, through the Z visa program and the new merit system, each individual must meet these significant demands in order to earn a green card.

Green card backlog

The second component of the ``grand bargain'' is to clear up the current backlog of individuals who have been waiting for green cards and to reform how green cards are awarded by creating a point system that is based on merit.

To achieve this, the bipartisan bill would provide about 200,000 new green cards annually that will go to those individuals who have followed the rules and applied for a green card prior to May 1, 2005.

For anyone who applied after May 1, 2005, they will now be required to re-apply through the new merit-based point system. This new point system is based on what has been done in other countries, including Canada and Australia. It sets up a framework to allow individuals to earn points that would qualify them to earn a green card.

Under this new system, individuals will get points for education, work history, ability to speak English, as well as whether they have U.S. citizen family members. This new point system is a balanced approach that considers multiple factors and allows individuals to earn their green cards.

Temporary Worker Program

Finally, the third component in the ``grand bargain'' is to ensure that temporary means temporary--meaning workers who come to the United States on a ``temporary worker visa'' must return to their home countries when the visa expires.

Under the new ``Y-visa'' there are 2 temporary worker programs--one that brings in workers for 2 years, and then requires the worker to leave for a year; and a second, seasonal Y-visa where workers can come in for 10 months, and then are required to leave for 2 months.

Workers who come to the United States under the longer ``2 years in the country, 1 year out of the country'' program can renew their visa so that they can work up to 6 years total; but every 2 years they must leave the United States for a year.

However, if Y-visa holder wants to bring their family with them to the United States then they would be limited to only 1 renewal and they would have to demonstrate that they can support their family. They would do this by showing that the family has health insurance and that they will earn a wage above 150 percent of the Federal poverty guidelines.

Finally, the new Y-visa program is capped at 400,000 foreign workers a year for the 2-year/1-year program and 100,000 visas for the seasonal 10-month/2-month program. Both of these caps contain escalation clauses that allow the Secretary of Homeland Security to issue additional visas up to 600,000 per year for the longer program and up to 200,000 per year for the seasonal program.

The escalation clause in the longer program gives the Secretary the discretion to increase the number of Y-visas by as much as 10 percent or 15 percent each year. According to some estimates, this means that in 10 years well over 3.4 million foreign workers could come into the United States through the longer Y-visa program.

I am concerned about the impact on our economy and our country if such a substantial number of visas were to be issued. Senator Bingaman has an amendment that would eliminate the escalator and reduce the cap to permit only 200,000 Y-visas each year to be issued under the longer program. I am a cosponsor of the Bingaman amendment and I voted for it last Congress.

While I agree with the grand bargain principle that temporary means temporary, I am concerned that the high cap on the longer Y-visa program and the inclusion of the escalator means that the numbers of temporary workers coming in through this program are just too high.

But with the adoption of the Bingaman amendment I believe the temporary worker program adopts the right balance and still fulfills the principles of the ``grand bargain.''

Need for Agricultural Labor

In addition to these important principles that were developed as part of the ``grand bargain'', the bipartisan bill contains two more important provisions: the DREAM Act and AgJOBS.

Last Congress, Senators Craig, Kennedy, and I repeatedly tried to pass AgJOBS. This bill reforms the current H-2A agricultural temporary worker program and creates a path to legalization for undocumented farm workers currently in the U.S.

There is no industry that is suffering more from a labor shortage than agriculture. Foreign workers make up as much as 90 percent of the work force and over half of the foreign workers are undocumented--as many as 1.5 million.

But for years now we have heard from farmers and growers that they can not get the labor force needed to harvest their crops.

California growers tell me that their labor forces are already down 30 percent this year. For example, Larry Stonebarger, a cherry packer in Stockton, CA, has said that his packing house only has 650 workers, instead of 1100 he needs.

California provides a vital part of our Nation's food source. Half of this country's fruits are grown in California and, in fact, California is the only U.S. producer of almonds, figs, kiwi fruit, olives, and raisins. The importance of having locally grown produce cannot be underestimated.

This Sunday, the Washington Post reported that the Food and Drug Administration detained 107 food imports from China at U.S. ports just last month. They found dried apples preserved with a cancer-causing chemical; mushrooms laced with illegal pesticides; juices and fruits rejected as ``filthy''; and prunes tinted with chemical dyes not approved for human consumption. This situation is unacceptable. But, amazingly, as we fight to keep out foreign produce that is not protected by safety and quality controls, our own immigration policies undermine the ability of U.S. growers to produce high quality fruits and vegetables right here in our own country.

The reality is, if there are not enough farm workers to harvest the crops in the United States, we will end up relying on foreign countries to provide our food. This is not good for our economy or for ensuring that Americans are receiving safe and healthy foods.

The best way to avoid this outcome is to ensure that American farmers and growers have the workers they need to harvest the crops, and the best way to ensure we have a stable agriculture labor force is to pass AgJOBS.

Our bill will stabilize the labor shortage on our farms by allowing undocumented farm workers who have worked in agriculture and agree to continue to work in agriculture for 3 to 5 years to earn a Z-A visa and eventually a green card. This will create a path to earn legal status for those ag workers already in the country.

Secondly, AgJOBS will streamline the H-2A program so that it is usable, so that growers and farmers can have access to a consistent supply of temporary workers in the future.

AgJOBS is a bipartisan bill that needs to be enacted to ensure that farmers, growers, and farm workers can continue to provide Americans home-grown, safe and healthy produce.

Immigration reform is certainly a difficult area to tackle, but this bill strikes the right balance and reflects the best thinking on how to accommodate all the various concerns and interests.

While it is easy to sit on the sidelines and criticize, it is harder to stand up, take on the tough issues, make the hard decisions and do what is right to fix our immigration system. I want to commend Senators Kennedy, Specter, Salazar, and Kyl for their hard work in undertaking this difficult issue and crafting this important legislation.

This is not a perfect bill, but it is a good bill, and it is a bill that I hope the Senate will pass.

Amendment No. 1146 to Amendment No. 1150

Mr. President, I call up amendment No. 1146, and I ask unanimous consent to add Senator Martinez as a cosponsor.

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

Mr. President, about 6 years ago, I was sitting at home and I was watching television. What I saw was, I believe, happening in Seattle. It was a 14-year-old Chinese youngster who had come to this country in a container. Her parents died in the container. She had survived. She had been in a detention facility for 7 months prior to coming before the judge. What I saw on television were tears streaming down her face, her hands in cuffs, and the chain went around her waist. She was unable to wipe away her tears. I thought this was very strange, something really must be wrong.

I found out that she is not alone. There are 7,000 unaccompanied youngsters who come to this country every year. Many of them--at least up to a recent point--were held in detention facilities for unlimited periods of time. They don't speak the language, they have no friends, they have no guardians, and they have no one to represent them. Often, they are sexually abused. It is a real problem.

This amendment is the same as a bill that passed the Senate last year by unanimous consent. There are a few changes, and those changes remove provisions that were contained in the previous version that are no longer necessary because of changes in agency practices to bring this bill in line with other laws, and to require promulgation of regulations and reporting of statistics on children affected by this bill.

Now, in the Homeland Security Act, the responsibility for the care and placement of unaccompanied alien children was transferred from the Immigration and Naturalization Service to the Department of Health and Human Services, Office of Refugee Resettlement. This amendment provides guidance and instruction to the Office of Refugee Resettlement, the Department of Homeland Security, and the Department of Justice, for how to handle the custody, release, family reunification, and the detention of unaccompanied alien children.

The amendment clarifies that any child who was deemed to be a national security risk, or who has committed a serious crime, will remain under the jurisdiction of the Department of Homeland Security or the Department of Justice and will not be released to the Office of Refugee Resettlement. For those who pose no danger to themselves or others, the amendment requires that the children be placed in the least restrictive setting possible, and it defines what those settings are.

This is the order of preference: One, licensed family foster care; two, small group care; three, sheltered care; four, residential treatment center; five, secured detention. So the least restrictive place for these children--remember, in any given year, there are a substantial number of these children. The amendment also would establish minimum standards for this custody or, where appropriate, detention of these children, including making sure they have access to medical care, mental health care, some access to phones, legal services, interpreters, and supervision by professionals trained to work with these children.

I am delighted that Senator Martinez is a cosponsor, and I hope he will come to the floor because I believe he just said to me he found himself in a similar situation. I mentioned to him a case with which we are all familiar, Elian Gonzalez, who landed on the shores of Florida, whose mother drowned trying to get here. He had relatives in Florida. Florida has moved to create certain centers where these children are, in fact, secure, but many States have not.

The amendment also requires that wherever possible, these children are returned to their place of origin if there is a family member who can receive them. So a juvenile is sent home if there is a suitable placement for that child. If not, another appropriate placement must be secured for that child.

I think this legislation is very good legislation. As I said, it has passed the Senate before. We have amended it to comply with bills that have passed the Senate, and I am very hopeful that this amendment might even pass by unanimous consent today.

I will not ask for the yeas and nays at this time.

I do not see Senator Martinez in the Chamber at this time, so I yield the floor.

Mr. President, will the Senator from Massachusetts yield for a question?

I understand I am next in order to offer an amendment.

If the Senator from Massachusetts is not ready to go to Senator Feinstein's amendment at this time, I suggest I offer mine and then we do the two amendments in sequence.

Mr. President, I ask unanimous consent to set aside the pending amendment, and I call up my amendment, which is No. 1172.

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

Mr. President, the essence of this bill for most Americans, I believe, is the need and the desire to secure the border, to make sure that people coming across our border are coming across legally, that we know who they are, and that we are able to manage our border.

It is a national disgrace that we have been unable to control the illegal flow of people into our country, especially the massive illegal flow of people across the southwestern border into this country. So I don't believe there is really ever going to be a consensus around major immigration reform, which I happen to strongly support.

I supported last year's bill introduced by Senator Kennedy and Senator McCain. I support the effort this year in concept, although I still want to see how it is going to end up in detail. But there will never be a consensus support for major immigration reform, which we need so dearly in this country, unless the American people can be confident that the border is secure as the first condition of immigration reform. Thus, I think it was really a touch of genius--and I don't think I overstate that--by Senator Isakson from Georgia to come up with this idea of a trigger over a year ago so that it would be clear that the precondition of major immigration reform would be that the border would be secure, especially the southwestern border. I congratulate Senator Isakson for that initiative, and it is included in this bill in concept in that the trigger is in place.

The concern I have is that the elements which exercise the trigger, so that we then move on to the policies of this bill relative to other elements of immigration reform, such as the guest worker program, making sure we have adequate employer verification, doing the things that are necessary in the area of creating more capacity for people to come into this country who are qualified in the area of skills, those elements are subject to a trigger today which is in this bill, and I believe the specifics around that trigger do not lead, unfortunately, to what we want, which is a secure border. It is a movement down the road, but it is a movement down the road which appears in some way to have been set not on the basis of what is necessary for controlling the border but on the basis of what would be necessary to make sure the operative part of this bill goes into action or occurs within 18 months of passage of the bill.

So it seems that the numbers which have been put down in this bill relative to how many Border Patrol agents we need, how many detention beds we need, relative to how many observation facilities we need along the border for a virtual fence, relative to other structural needs of the southern border control, those elements were not defined in terms of what would lead ultimately to full security and operational control of the southwestern border, but those elements were defined as to what was perceived as being doable in the next 18 months.

The difference between what is necessary for operational control of the border and what those numbers are is not dramatic, quite obviously, but it is significant, very significant. I had the good fortune for a number of years to chair the Homeland Security Subcommittee of the Appropriations Committee, and I served on it for a long time. So I do believe I am fairly familiar with this issue, as familiar, probably, as anybody in this body with this issue since there were a number of initiatives which I began both as a chairman of the Commerce-State- Justice Subcommittee, which was a precursor to the Homeland Security Subcommittee, and then as chairman of the Homeland Security Subcommittee which were targeted directly on the issue of upgrading the Border Patrol capability, the port control capability, the Coast Guard capability, and the detention bed capability so that we could get operational control over the border.

Throughout this period, as we have been ramping up--and we have ramped up dramatically. We have come really from a marginal capability of controlling the southwestern border to a capability that is quite high, and we are making dramatic strides every day in that area. The numbers that are necessary were fairly well vetted as we stepped with intensity into this process 3 or 4 years ago. The numbers in this bill, therefore, should reflect what was the consensus position at that time and what I continue to believe is the consensus position as to the type of resources and the number of people they need and the type of support they need on the border to gain operational control of the border.

This bill we are dealing with calls for 18,000 Border Patrol agents, of whom it is assumed 16,000 will be boots on the ground on the border. It calls for something like 21,000 detention beds. It calls for something like 70 towers where we do virtual fence activity. We just let out a contract called SBInet, the purpose of which is to replace a program which was a total failure, which would put an electronic surveillance system along the border. That SBInet is a fairly complex technological initiative which involves ground sensors, visual sensors, and heat sensors, and it involves unmanned aerial aircraft to cover that part of the border which cannot be effectively and should not be covered with physical fencing. It is a complex initiative, but it is one which will work, we hope, and one which we are well down the road toward doing. But for it to work effectively and for it to be properly built, the amount of resources that needs to be committed to it exceeds by a factor of about 30 percent what is in this bill. The same is true in the area of Border Patrol agents and in the area of detention beds, although less is needed.

So what I have done in this amendment is essentially propose that we take the numbers that we know are necessary to gain operational control over the border and put those numbers into this bill. And that we allow the trigger, which is this exceptional idea Senator Isakson came up with, to function off those numbers, rather than backing into the trigger by using the number of months which we think we want to use before we move on to the rest of the bill.

The difference, as I said, is not dramatic, significant but not dramatic. For example, instead of 18,000 border agents--we had a lot of testimony, a lot of discussion, and the head of the Border Patrol at the time, Robert Bonner, said he needed 20,000 agents on the border-- not 16, 20. So there is a 2,000 agent difference. Now, the issue will be hiring, the issue will be how quickly you can work them through the system and bring them on board.

The issue is attrition. But the fact is, that is the number where there was consensus, pretty much, that we needed in order to get the right number of agents on the Southwest border--20,000; so 2,000 additional agents over what the bill calls for.

In the area of detention beds, the bill calls for 21,000. We are already headed well past that with the appropriations process, so that was almost picking a number that was already done. It is like saying we are going to approve this event, the trigger will occur if the Sun comes up in the east. The Sun was going to come up in the east. The fact is 21,000 beds is not enough. We know that. We know we need closer to 30,000 beds in order to have the adequate detention capability to stop completely the catch-and-release issue, which is a huge issue.

There are a couple of amendments that have already been offered. I think Senator Grassley has offered that amendment. I am not sure of that, but certainly Senator Graham's amendment, which was just accepted, is related to that point. So instead of 21,000 beds, the number I have put in my amendment is 31,000, which is the consensus position. Again, it is not hard to get to 31,000 from 21,000 because we are already over 21,000, or we are headed over 21,000. We can certainly get well above that number fairly quickly.

In fact, 21,000 may be wrong. Maybe the bill calls for 27,000. I apologize. The number here is 27,000. Somewhere I had seen 21,000, but if it is 27,000 the bill calls for, we are only asking for another 4,000 beds in order to accomplish the goal that was agreed to in order to reach the capacity to handle people coming into this country and not have to release them and ask them to come back, which they do not do, for their hearings.

In addition, on the virtual fence side and on the hard fencing side, this amendment doesn't call for any additional hard fencing. The hard fencing language is 370 miles. I happen to believe that is probably as close to the number as we need. Hard fencing is needed in urban areas, but most of the border is not urban. In the nonurban areas, hard fencing is not functional and doesn't add a whole lot to our security or to our ability to control the border. But we do need additional vehicle barrier fencing, probably another 100 miles over what this bill calls for, which is 200 miles, which is already in place and we are headed toward, so this calls for 300 miles of vehicle fencing, which was what we agreed to back when we did the Safe Border Initiative.

On the virtual capability, this bill calls for 70 towers. Well, we are already headed toward 70 towers. We know we can build 70 towers, but 70 towers isn't what we need to make the system work. We need significantly more than that. We believe, within a reasonable timeframe, we can build 105 towers, which would have us on track, so this language calls for 105 towers.

It also eliminates the arbitrary language in here which is a sense of the Senate that everything has to be done within 18 months. As I mentioned, if you look at these numbers, you can see basically what happened here, I suspect, was somebody said, what numbers can we be absolutely sure we are going to hit in 18 months so we can exercise the trigger and the numbers? They were good numbers that were put in, but they weren't the numbers there had been consensus built around 2 years ago, 3 years ago, even as recently as 1 year ago, that were needed in order to actually gain operational control of the border. So this amendment simply says, let us use the trigger mechanism. It is an excellent idea, and let's take it forward but use it as a real trigger that functions off of numbers that we know, if they are in place, will create operational control and which will not unduly delay the execution of the rest of this bill.

With proper resources, almost everything I have proposed in my amendment could be accomplished fairly quickly. It is more than a statement of commitment to operational control; it is a commitment to operational control before the trigger gets pulled. In addition, to make sure we are getting the operational control we need, the amendment has an independent review by the Government Accountability Office of the effort by the Department to meet these different benchmarks so we, as a Congress, will know when there is a certification that the benchmarks have been reached, the benchmarks actually will have been reached and they will have been reviewed by an independent group, specifically the Government Accountability Office, to confirm they have been reached.

The amendment's purpose is to accomplish what the bill wishes to accomplish. The purpose of this amendment is to make sure the first step in this effort of immigration reform is to secure specifically the Southwest border so we have a situation where people are not continuing to cross into this country illegally after we have passed immigration reform--or at least there is a clear roadmap which will get us to the resources and the number of people we need on the southwestern border to assure people won't be coming into this country illegally along that border because we will have the necessary support to accomplish that. It is, I believe, an extremely reasonable amendment.

Ironically, the numbers in this amendment have been offered from the other side of the aisle on numerous occasions, or pretty close to these numbers, by Senators who feel, as I do, that the border needs to be secure. I would note especially Senator Byrd has had a number of amendments right along this course where he has said, let us do what we have to do in the area of resources to assure that Homeland Security has the people they need in Border Patrol agents, has the resources they need in the area of detention beds, has the resources they need in the area of a virtual fence and regular fencing in order to adequately control the border--not adequately, but to have actual operational control over the border.

I hope this amendment would be accepted. This is an amendment which toughens up our commitment to border security and it does it in the context of what is an idea that makes a lot of sense, which is the Isakson trigger and, therefore, it is, in my opinion, a significant effort to improve the bill and give people the confidence that when we pass this immigration reform, it will have as its first element our ability to make sure we know who is coming into this country, especially across the Southwest border.

Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask for the yeas and nays on my amendment.

Mr. President, I suggest the absence of a quorum.

Mr. President, I appreciate the Senator's courtesy. I wish to respond briefly to the points which were made.

The numbers in this bill are numbers which are a fait accompli. They are numbers which we already know we will reach within the next 18 months, if we stay on the appropriations path which was set up by myself and Senator Byrd 2 years ago, but they are not the numbers on which there was consensus needed in order to bring operational control to the borders. They are not those numbers. They are good numbers. They are a-step-in-the-right-direction numbers. That is why we funded them and put in place a path to continue to fund them. But there was absolute consensus--and don't let anybody come to this floor and say something else--that the numbers for gaining control over the border are different than these numbers. If they weren't, then we wouldn't have let the contract on creating the virtual fence, because the numbers in this bill do not come anywhere near the completion of the virtual fence.

The numbers in this bill do not come anywhere near what is needed to have the detention beds necessary to completely end catch and release, nor do they reach the numbers necessary to have the number of people on the border necessary to control the border. The Commissioner of Customs, Mr. Bonner, made it very clear in testimony 3 or 4 years ago that they needed 20,000 agents on the ground on the border.

This amendment hasn't asked for a radical change from what the bill suggests. It says the bill makes a great stride, but if we are to use the Isakson trigger effectively, which we want to--and the purpose of the trigger is to make sure the border is secure before we move to the next step in the bill--then we have to have the resources on the border to accomplish that security. The resources necessary to do that are 20,000 agents, which is an increase of 2,000 over what the bill calls for; the addition to 31,000 beds is an increase of about 2,500 over what the bill calls for; an additional 100 miles of vehicle barrier over what the bill calls for; and within a timeframe we believe is reasonable, so you could still hit the 18 months or be close to it, not 70 towers of virtual fencing, which is where the communications and the optics will be operated out of, but 105. That won't be the end of the towers, but that would be enough to allow operational control over the border.

This is not dramatic or radical. It is not even a grand change from what the bill suggests. It is simply a change that meets the conditions which we know are necessary in order to give operational control over the border. The point which this amendment makes is that operational control of the border should not be determined by an arbitrary number of months going by--in other words, if 18 months go by, we will lose operational control over the border. It should be set by the resources being in place on the border which will limit the ability of people to come across the border illegally. That is what this language does. How much more will this language cost than what the bill costs? About $700 million more. That certainly should be within the funding capabilities of the Appropriations Committee. In fact, if the administration wanted to, they could send up a supplemental to accomplish that. That is a very doable event.

Then it has a second condition, which is, it simply says the certification that these numbers have been met shall be reviewed by GAO. I do think as a Congress we would want that independent review. That is reasonable.

It takes the number of Border Patrol agents up by 2,000 and gets it to the number that was agreed to as being needed. It takes the number of beds up by about 2,500 and gets the number which was agreed to. It takes the number of vehicle barriers up by 100 and gets to the number that was contracted for. It does not change the fencing requirement. It keeps that at 370 miles. It adds 35 towers for the virtual fence, which is what the contract called for.

To represent this is some sort of amendment which therefore fundamentally undermines the core agreement is absurd on its face. The core agreement was, we would put in place, using the Isakson trigger, which was a stroke of genius for resolving this issue, resources on the border which would allow for operational control of the border. This simply calls for those resources to be consistent with what the testimony has been over the last few years as to what is needed in order to accomplish that.

The great irony is less than 6 months ago, we passed the Safe Fence Act. The Safe Fence Act essentially put in place the mechanism which got us to these numbers. The Safe Fence Act called for this action. The Safe Fence Act got 92 votes. It seems to me if 6 months ago we believed these were the numbers that should be used for fencing--and that is one element of it--how can we change 6 months later and say: We are going to step back from that and that is not the number we need in order to have the trigger occur? If this were a dramatic shift, a radical shift, an undermining shift in the exercise of this bill, I would say, fine, oppose it; it is an attempt to kill the bill. But just the opposite is the case. I am one of the few people on my side of the aisle who actually voted for the Kennedy-McCain bill the last time it came through here. I am on record and my commitment is to do immigration reform.

I also know the American people will not be sold on the idea that we are going to do immigration reform until they are confident our border is secure, especially the southwestern border where the vast numbers of people are coming in illegally. The northern border is a whole other issue and a serious one, especially from the view of terrorism. But on the southern border, people want it stopped. They want to know there are in place the resources to allow us to control that border before we take the next step into immigration reform, which next steps are critical and necessary. That is, of course, the genius of the Isakson trigger for which he deserves great credit, and which this language will essentially make more effective because it accomplishes the underlying goal of the trigger mechanism.

How long will this delay over the 18 months, which appears to be the arbitrary number? In fact, a sense of the Senate in this bill says everything has to be done in 18 months. How long will these numbers I have suggested we meet, which aren't my numbers but are numbers that have been around and on which there was consensus before this bill came out of committee or came out of the working group--it never came out of committee, obviously--came out of the working group around which there was so much consensus last year that we had a 92-to-2 vote on the Safe Fence Act, how much will that extend that time period beyond 18 months? Actually, it might not extend it at all.

With proper dollars, Homeland Security could probably do all of these things within the next 18 months. Certainly, they could do the extra hundreds of miles of vehicle barrier. I am told they can do the extra 35 towers without the contractor. We have talked to the contractor. He thinks that is a very doable event. The detention beds are certainly doable because you can actually, if you can't build them--of course, what we should be doing is putting up tent cities, which we are doing, but in any event, you can contract them out, potentially. We are talking another 2,000 beds. The border agents is an issue, but if it is going to be an issue at 18,000, it will be an issue at 20,000. Hiring border agents has become a function of finding the people we know we want to do the job. But it is still very doable within that timeframe.

I am not sure it will delay it at all. I suspect you could still do all this within 18 months, but there should not be a set series of months at the end of which we are going to say: OK, we have operational control of the border, and we can move on to the next things. What we should have, rather, is a set of very determinable benchmarks which will allow us to say that benchmark has been met and there is consensus that that benchmark will accomplish what we say it will. In this instance, that is the issue of operational control of the border.

So I would hope people would not vote to table this amendment. I would note that many Members on the other side of the aisle have voted for these types of resources in the past, when the amendment had been offered by Senator Byrd. So you may want to ask yourself, are you going to be consistent if you vote against this one?

But, more importantly, I think you have to ask yourself, are these changes--an additional 2,000 border agents, an additional 100 miles of vehicle barriers, an additional 2,500 beds--so onerous that they are deal killers? If that is the case, then this bill must be dead because we just passed an amendment to cut the number of temporary workers in half. Now, that is a serious issue. This is taking procedure and putting it over policy when you take that position to the extreme.

So I hope Members will support this amendment. If the Senator from Massachusetts is inclined to move forward at this moment, I have no problem.

Mr. President, I make a point of order a quorum is not present.

Mr. President, I will make a point of order a quorum is not present.

I make a point of order a quorum is not present, Mr. President.

Mr. President, a quorum is not present. I make a point of order that a quorum is not present.

Mr. President, I appreciate the courtesy of the Senator from Massachusetts, and I will take 2 minutes to respond to his comment, and then I would be happy to have the Senator renew his motion. That was all the time I wished to use to respond--the issue being I had not been aware the Senator was going to respond to my comment. But I did believe his comments deserved a response, and that is what I was seeking recognition to do at the time I was cut off. However, I do appreciate the Senator's courtesy.

In response to the specifics of the Senator's representations that the Department's position is that these numbers, as contained in the bill, will accomplish operational control of the border, I find that to be entirely inconsistent and unsupportable, first, from the testimony of the Department's lower level individuals--who are in charge of these agencies--before the Appropriations subcommittee which I chaired at the time, specifically, the Director of the Border Patrol, Mr. Bonner, who made it very clear he needed 20,000 border agents; and, secondly, the fact they had let a contract which has in it significantly more numbers in the area of virtual fencing towers than are in this bill. If they did not need those, why did they have a contract which calls for them?

So I think on its face the representation of that proposal may be that is what they can do in 18 months, but it is not what they need to do for operational control.

The proposal I have is the numbers necessary to obtain operational control: 2,000 more border agents than called for in the bill, 2,700 more beds than called for in the bill, 35 more towers for virtual fencing than called for in the bill, and 100 miles more of vehicle fencing.

It is not outrageous, not inconsistent, not inappropriate, and will actually strengthen this bill and make the American people believe we are doing something constructive in the area of border security.

With that, I appreciate the courtesy of the Senator from Massachusetts in allowing us to reopen the debate and ask unanimous consent that further

debate on this amendment be ended and that the Senator be allowed to make his motion, which he has a right to do anyway.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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.

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

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 brandnew 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.

Mr. President, let me speak very briefly, and then I will reserve the last minute to try to close this debate.

This amendment will reduce the number of people who can come into the country under this new guest worker program. The underlying bill calls for 400,000, up to 600,000 per year coming in under this new guest worker program. The amendment I am offering would reduce that to 200,000 per year, maximum. I think that is plenty.

This is an unproven, untested, brandnew program. We need to see how it is working. We need to see the impact it is having on other wage rates in the country.

I urge my colleagues to support that amendment. I will reserve the remainder of my time in case there is someone speaking against the amendment. Then I will conclude.

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.

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.