Calendar No. 80 113TH CONGRESS REPORT " ! 1st Session SENATE 113–40 BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT JUNE 7, 2013.—Ordered to be printed Mr. LEAHY, from the Committee on the Judiciary, submitted the following R E P O R T together with ADDITIONAL AND MINORITY VIEWS [To accompany S. 744] The Committee on the Judiciary, to which was referred the bill (S. 744), to provide for comprehensive immigration reform, and for other purposes, having considered the same, reports favorably thereon, with an amendment, and recommends that the bill, as amended, do pass. CONTENTS Page I. Background and Purpose of the Border Security, Economic Opportunity, and Immigration Modernization Act ........................................................ 1 II. History of the Bill and Committee Consideration ....................................... 22 III. Section-by-Section Summary of the Bill ...................................................... 75 IV. Congressional Budget Office Cost Estimate ................................................ 161 V. Regulatory Impact Evaluation ...................................................................... 161 VI. Conclusion ...................................................................................................... 161 VII. Additional and Minority Views ..................................................................... 163 VIII. Changes to Existing Law Made by the Bill, as Reported ........................... 186 I. BACKGROUND AND PURPOSE OF THE BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT OF A. PURPOSE OF THE BILL Few policy issues are as central to the history and character of America as immigration. The foundation of the Nation, and its fu- 29–010 VerDate Mar 15 2010 00:47 Jun 12, 2013 Jkt 029010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR040.XXX SR040 PWALKER on DSK7TPTVN1PROD with REPORTS 2 ture promise, was laid by men and women who came to America’s shores from around the world. Immigration is the history of all Americans who are not indigenous to the territory of the United States. It is an issue of enormous importance to all Americans. Notwithstanding diverse viewpoints on the best path forward, there is broad recognition that America’s current system of immi- gration is broken and in need of significant reform. There are many aspects of Federal immigration law that are in need of improvement. But there may be no issue more central to the legislative proposal upon which the Committee has acted than the estimated 11 million individuals living in the United States in undocumented status.1 The Senate Judiciary Committee has ap- proved legislation that addresses this situation in a fair, tough, practical, and humane way. With the approval of this legislation, the Senate Judiciary Committee has begun the process of effecting these reforms and creating an immigration system for the 21st Century. 1. Creating an Earned Path to Citizenship One of the key components of the Border Security, Economic Op- portunity and Immigration Modernization Act (S. 744) is the path to earned citizenship for the estimated 11 million undocumented immigrants living and working in the shadows of American society. This legislation will give this population a tough but fair oppor- tunity to come forward and earn their citizenship by meeting sev- eral requirements, including paying fees and fines, passing na- tional security and criminal background checks, paying their taxes, and learning English. During the Committee’s consideration of S. 744, and its extensive study and consideration of comprehensive immigration reform in previous Congresses, the Committee has heard from law enforce- ment officials, community leaders, faith groups, civil rights groups, and individual members of the public about the urgent need to ad- dress the millions of undocumented immigrants living in the United States. Undocumented immigrants have a tenuous place in our communities. They live in constant fear of deportation. If they are victims of crime, they often do not report those crimes to State and local law enforcement.2 They work for low wages, unable to de- fend themselves from employer harassment and exploitation.3 Many have been in the country for 10 years or more, have made valuable contributions to their communities, and have immediate relatives who are American citizens.4 The prospect of deporting 1 DEP’TOFHOMELAND SECURITY, OFFICE OF IMMIGRATION STAT., ESTIMATES OF THE UNAU- THORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED STATES: JANUARY 2011 (March 2012) available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ ois_ill_pe_2011.pdf. 2 SOUTHERN POVERTY LAW CENTER, UNDER SIEGE: LIFE FOR LOW-INCOME LATINOS IN THE SOUTH 25 (2009) (noting the vulnerability for undocumented immigrants in the South and across the United States due to fears of deportation and low confidence in law enforcement) available at http://www.splcenter.org/get-informed/publications/under-siege-life-for-low-in- come-latinos-in-the-south#.UazxQ5yGcd0. 3 REBECCA SMIGH & EUNICE HYUNHYE CHO, NAT’L EMPLOYMENT LAW PROJECT, WORKER’S RIGHTS ON ICE: HOW IMMIGRATION REFORM CAN STOP RETALIATION AND ADVANCE LABOR RIGHTS (2013) available at http://www.nelp.org/page/-/Justice/2013/Workers-Rights-on-ICE-Retalia- tion-Report.pdf?nocdn=1. 4 According to the latest publicly available estimates, approximately 86 percent of undocu- mented immigrants arrived in the United States before 2005. See DEP’TOFHOMELAND SECU- RITY, OFFICE OF IMMIGRATION STAT., ESTIMATES OF THE UNAUTHORIZED IMMIGRANT POPULATION VerDate Mar 15 2010 00:47 Jun 12, 2013 Jkt 029010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR040.XXX SR040 PWALKER on DSK7TPTVN1PROD with REPORTS 3 these individuals would not only be prohibitively expensive,5 but would also have untold damaging effects on our economy, which re- lies on the work, taxes, and purchasing power of undocumented im- migrants even as our legal system fails to fully recognize or protect them. It would separate families and run counter to our ideals as a Nation. Instead, S. 744 outlines a tough but fair path that will bring individuals out of the shadows and into the lawful immigra- tion system, by allowing eligible applicants to adjust to the legal status of Registered Provisional Immigrant (RPI). The most recent legislative attempt to create a path to citizen- ship was the Immigration Reform and Control Act of 1986 (IRCA), a law that legalized three million undocumented immigrants and created employer sanctions against hiring undocumented workers.6 The hope was that IRCA would offer a long-term solution to the problem of illegal immigration.7 Legalization was meant to de- crease the undocumented population and prevent its expansion. Employer sanctions were expected to deter future illegal immigra- tion by drying up the job magnet that drew unauthorized workers to the United States. Under IRCA, undocumented individuals who had been continu- ously present in the United States since January 1, 1982 (almost five years before the date of enactment) and who met certain other requirements could apply for temporary permanent resident sta- tus.8 Upon learning English, meeting other requirements, and ap- plying within a prescribed time period, they could then become lawful permanent residents.9 Even though three million undocumented immigrants obtained legalization under IRCA, gaps in the law kept large numbers of the undocumented population underground and in long-term limbo. The early cutoff date included in that legislation left almost five years’ worth of arrivals without the ability to legalize. Vague statu- tory language, combined with restrictive interpretations by the former Immigration and Naturalization Service (INS), led to exten- sive litigation that prolonged the legalization program for more than 20 years.10 Moreover, the IRCA legalization program did not account for the spouses and children of legalized immigrants,11 which created a strong incentive for many to enter or remain in the country illegally to keep their families together. Establishing a tough but fair path to bring undocumented indi- viduals out of the shadows and into the lawful immigration system will benefit American workers and our society as a whole. Studies of the 1986 immigration reform law found that legalizing pre- viously undocumented workers increased wages by close to 10 per- RESIDING IN THE UNITED STATES: JANUARY 2011 (March 2012) available at http:// www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2011.pdf. 5 MARSHALL FITZETAL., CENTER FOR AM. PROGRESS, THE COSTS OF MASS DEPORTATION: IM- PRACTICAL, EXPENSIVE, AND INEFFECTIVE (2010), available at http://www.americanprogress.org/ wp-content/uploads/issues/2010/03/pdf/cost_of_deportation.pdf. 6 Pub. L. No. 99–603, 100 Stat.3359. 7 Immigration Reform and Control Act of 1986, H.R. Rep No. 99–682(I), 99th Cong., 2d Sess. 46 (1986); See also McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, n. 4 (1991). 8 8 U.S.C. § 1255A(a) (2008). 9 Id. at § 1255A(b). 10 See LUCAS GUTTENTAG, A BRIEF INTRODUCTION TO JUDICIAL REVIEW IN RELATION TO IRCA LEGISLATION (Yale Law School Workshop Series Readings, Fall 2009), available at http:// www.law.yale.edu/documents/pdf/Clinics/Immigration_Reading5.pdf. 11 The former INS established a ‘‘Family Fairness’’ program and in 1990 Congress added stat- utory relief for the spouses and children of legalized aliens, but that relief was extremely lim- ited. SEE Immigration and Nationality Act of