Chairman Carper and Chairman Leahy Letter On S. 744, The Border Security, Economic Opportunity And Immigration Modernization Act

June 11, 2013

Dear Colleague,

As the Senate prepares to take up S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act, as amended, we write to draw your attention to the strong border security provisions in the bill.  As chairmen of the Judiciary Committee and the Homeland Security and Governmental Affairs Committee, we have conducted extensive oversight of the Department of Homeland Security and its enforcement record.  The United States has made significant progress on border security and immigration enforcement in recent years, and this bill reinforces and advances that progress in many ways. 

The Wall Street Journal editorial board recently explained just how far we have come since the last time that the Senate considered comprehensive immigration reform:

The number of border patrol agents has grown to a small army of 21,370, or triple the personnel employed as recently as the Clinton Presidency. There are an additional 21,000 Customs and Border Protection officers.

The feds have built some 300 radar and camera towers as well as 650 miles of single, double and in some places triple fencing. Immigration and Customs Enforcement (ICE) now has the ability to detain 34,000 criminals and aliens at one time. The Border Patrol deploys military-style vehicles, 276 aircraft, nearly 300 marine vessels, along with state-of-the-art surveillance.

Meanwhile, illegal entries nationwide are at four-decade lows. Apprehensions of illegal entrants exceeded 1.1 million in 2005 but by 2012 had fallen by two-thirds to 365,000, the lowest level since 1971 with the exception of 2011, the previous 40-year low.

Last year the Government Accountability Office (GAO) examined federal data on “estimated known illegal entries” across the Mexican border. The numbers were way down nearly everywhere. In San Diego, illegal entries fell to about 55,000 in 2011 from more than 265,000 in 2006. In Tucson—the gateway to Arizona—illegal entries fell to about 200,000 from 600,000 over those years. And in El Paso illegal crossings tumbled to 30,000 a year from more than 350,000.

Even more dramatic is GAO’s analysis of illegals who escape through the enforcement net, a statistic called “got aways.” In nine major Southern border crossing areas, including the main gateways of Tucson, San Diego and the Rio Grande, got aways fell to an estimated 86,000 in 2011 from 615,000 in 2006. That’s an 86% decline in foreigners who successfully snuck into the country from Mexico.

Border Security Reality Check, Wall Street Journal (May 2, 2013). 

Let there be no mistake:  We have poured billions of dollars into border security over the past decade.  In fact, according to a recent Migration Policy Institute report, we spend more money on enforcing our immigration and customs laws—$18 billion each year—than we do on all other federal law enforcement agencies combined.  The result of this unprecedented investment of taxpayer money is that, as Secretary Napolitano has told us, our borders are more secure than they have ever been.

The bill, as amended, builds on these successes by allocating substantial additional resources to border security.  As outlined in the Senate Judiciary Committee’s report on the bill, S.744, as amended, appropriates up to $6.5 billion to secure the border beyond current spending levels; authorizes 3,500 additional Customs and Border Protection officers for our ports of entry; permits the deployment of the National Guard to the Southwest border region; significantly expands border security infrastructure, such as Border Patrol stations and forward operating bases; calls for the further use of technology at the border, including additional unarmed unmanned aerial vehicles; provides additional resources for criminal prosecutions of those unlawfully crossing the border; and authorizes reimbursements to State, local and tribal governments for their costs related to illegal immigration.  

In addition to providing these new resources and authorities to enhance our border security operations, the bill also enhances the accountability of our border officials.  The bill, as amended, establishes a statutory goal, known as the “effectiveness rate,” of preventing 90 percent of illegal entries at the border, and requires DHS to report to Congress whether it is achieving this rate.  It also instructs DHS to achieve persistent surveillance over the border, so that the American public and Congress can know exactly how many people are trying to cross the border illegally each year.  If these statutory goals are not met within 5 years, the bill establishes a bipartisan Southern Border Security Commission, with members appointed by the President, both Houses of Congress, and the Governors of our border states.  This Commission will be charged with developing further concrete plans to meet the statutory goals in the bill, and is provided with an additional $2 billion to carry out its plan.  During the Senate Judiciary Committee’s markup of the bill, the Committee adopted additional provisions to strengthen border security, such as an amendment offered by Senator Grassley to expand the bill’s 90% effectiveness rate and persistent surveillance goals to cover the entire Southern border, not just its high-risk sectors.

The bill, as amended, also establishes tough triggers that will ensure additional border security steps are taken before the earned path to legalization can begin.  Specifically, DHS must provide to Congress a Comprehensive Southern Border Security Strategy and a Southern Border Fencing Strategy that lay out exactly how it will meet the statutory goals outlined above before it can begin to register undocumented individuals for provisional status.  These Registered Provisional Immigrants, in turn, will be allowed to apply for green cards after 10 years—but only after:

  1. the Secretary certifies that the Comprehensive Southern Border Security Strategy is substantially deployed and substantially operational;
  2. the Secretary certifies that the Southern Border Fencing Strategy is implemented and substantially completed;
  3. DHS has implemented a mandatory employment verification system to be used by all employers; and
  4. DHS is using an electronic exit system at air and seaports based on machine-readable travel documents to better identify individuals who overstay their visas by tracking the departures of non-citizens.

The bill’s comprehensive approach to immigration reform will also enhance border security, by reducing the incentives that lead people to come here illegally.  We need to stop focusing our attention on the symptoms, and start dealing with the underlying root causes in a way that is tough, practical, and fair.  The Border Security, Economic Opportunity, and Immigration Modernization Act, as amended, accomplishes that goal.  First, undocumented individuals will find it much more difficult to work, because the bill requires a nationwide electronic employment verification system and enhances penalties for employers who hire undocumented workers.  Second, the bill, as amended, creates a more rational immigration system that provides legal avenues for eligible individuals to enter the country for work or to join their family members.  As former Homeland Security Secretary Michael Chertoff wrote, “without expanded legal immigration to address the needs of the labor market, border security will be harder and more expensive to achieve”  (Obama’s Immigration Agenda, The Washington Post, Feb. 14, 2013).   By making it more difficult for employers to hire undocumented workers, creating legal ways to enter the country for immigrants coming for legitimate reasons, and allowing eligible undocumented individuals to earn a path to citizenship, this bill will allow the Department of Homeland Security to focus its efforts on addressing threats to our national security and public safety.

In sum, S.744, as amended, will dramatically reduce illegal immigration and improve national security.  We look forward to considering additional ideas to improve border security further during Senate floor consideration, especially those that present solutions that are effective, workable, affordable, and flexible enough to allow the Department of Homeland Security to deploy the right resources where they are needed, without creating undue delays to prevent undocumented individuals from earning a path to citizenship.  As we continue to build on the unprecedented investments that have been made to secure our borders, we must ensure that extreme or unworkable proposals do not become a barrier to moving forward on comprehensive reforms that are also critical to securing our borders.  These reforms include a path to citizenship for the undocumented in the United States who work, pay taxes, learn English, pass criminal background checks, pay substantial fines, and get in line behind those who applied to come here legally and have been waiting for years.

The Border Security, Economic Opportunity, and Immigration Modernization Act, as amended, makes important improvements to our immigration system that will strengthen national security and benefit our nation as a whole.  We look forward to working with you as the Senate considers this legislation and, hopefully, improves it.   


__________________                                                          ___________________

PATRICK LEAHY                                                                TOM CARPER
Chairman                                                                            Chairman
Senate Judiciary Committee                                                   Senate Homeland Security and

                                                                                          Governmental Affairs Committee