Menendez Speaks Against Cornyn Amendment

Menendez Speaks Against Cornyn Amendment

Measure would dramatically expand grounds for deportability

Washington - U.S. Senator Robert Menendez (D-NJ) today voiced his objections to an amendment offered by Senator John Cornyn (R-TX) to the Border Security and Immigration Reform Act of 2007. Menendez spoke on the floor against the amendment, which would dramatically expand grounds for deportability to include social security fraud and would allow deportations based on an unreviewable executive branch determination, which could be based on secret evidence.

"This provision would place individuals applying for legalization in a 'Catch 22' situation," said Menendez. "We want them to come forward and register because we want to know who is here pursuing the American Dream versus who is here to destroy it. Yet, if they admit to having used a false social security card to work in the United States only to be prosecuted... that individual's ultimate prosecution changes to a removal because of conduct that occurred prior to enactment. The potential impact of making literally thousands and thousands of undocumented workers subject to these provisions would, in essence, nullify the very essence of the earned legalization aspect of the Grand Bargain."

Menendez strongly objected to the measure's retroactive applications: "What is more unfair than changing the rules in the middle of the game? That is what is unconstitutional in criminal law and strongly objectionable in the context of immigration law, with such changes having profound consequences."


The closed captioning text from the Senate floor of Sen. Menendez's comments (not an official transcript):

MR. PRESIDENT, I'D LIKE TO TURN TO ANOTHER AMENDMENT PENDING BEFORE THE SENATE, SENATOR CORNYN'S AMENDMENT.

I'M JUST GOING TO TALK ABOUT SOME ELEMENTS OF THIS TO GIVE OUR COLLEAGUES IN THE SENATE A TASTE OF WHAT'S HERE. THIS IS FAR FROM A TECHNICAL AMENDMENT.

IT HAS VERY SUBSTANTIVE CONSEQUENCES IF IT WERE TO BE ADOPTED. IT ACTUALLY UNDERMINES THE GRAND BARGAIN THAT I UNDERSTOOD WAS STRUCK.

LET ME GIVE ONE OF THE EXAMPLES OF HOW, IN MY MIND, IT UNDERMINES THE GRAND BARGAIN.

UNDER THIS PROVISION OF THE CORNYN AMENDMENT, IT ADDS NEW GROUNDS OF DEPORTIBILITY FOR CONVICTIONS RELATING TO SOCIAL SECURITY ACCOUNT NUMBERS OR SOCIAL SECURITY CARDS AND RELATING TO IDENTITY FRAUD.

AS WITH VIRTUALLY ALL OF THE OTHER PROVISIONS IN HIS AMENDMENT THIS IS EXPANSION -- THIS EXPANSION IS RETROACTIVE -- RETROACTIVE.

SO, UPON THE PASSAGE OF THIS BILL, IF IT WERE TO BECOME LAW SIGNED BY THE PRESIDENT, THESE NEW OFFENSES WOULD GO BACKWARDS, WOULD BECOME RETROACTIVE SO THAT THE ACTS THAT OCCURRED BEFORE THE DATE OF ENACTMENT WOULD BECOME GROUNDS FOR REMOVAL.

WELL, IF PART OF THE GOAL HERE IS TO BRING OUT THOSE FROM THE SHADOWS INTO THE LIGHT AND TO APPLY FOR A PROGRAM, YOU WOULD HAVE HUGE NUMBERS OF PEOPLE WHO WOULD, IN ESSENCE, BE CAUGHT BY THIS PROVISION IN A WAY THAT WOULD NEVER, EVER, ALLOW THE EARNED LEGALIZATION ASPECT OF WHAT IS BEING OFFERED AS A REAL POSSIBILITY FOR THEM.

IN ESSENCE, IT WOULD UNDERMINE THE VERY ESSENCE OF THE GRAND BARGAIN.

THIS PROVISION WOULD PLACE INDIVIDUALS APPLYING FOR LEGALIZATION IN A CATCH 22 SITUATION. WE WANT THEM TO COME FORWARD AND REGISTER BECAUSE WE WANT TO KNOW WHO IS HERE PURSUING THE AMERICAN DREAM VERSUS WHO IS HERE IT DESTROY IT.

YET, IF THEY ADMIT TO HAVING USED A FALSE SOCIAL SECURITY CARD TO WORK IN THE UNITED STATES ONLY TO BE PROSECUTED BY A UNITED STATES ATTORNEY OR ONE WORKING WITH THE DEPARTMENT OF HOMELAND SECURITY TO SELECTIVELY TARGET SOME APPLICANTS, THAT INDIVIDUAL'S ULTIMATE PROSECUTION CHANGES TO A REMOVAL BECAUSE OF CONDUCT THAT OCCURRED PRIOR TO ENACTMENT, CONDUCT THAT WAS FUNDAMENTALLY INCIDENT TO HIS OR HER UNDOCUMENTD STATUS.

NOW, THE POTENTIAL IMPACT OF MAKING LITERALLY THOUSANDS AND THOUSANDS OF UNDOCUMENTED WORKERS SUBJECT TO THESE PROVISIONS WOULD, IN ESSENCE, NULLIFY THE VERY ESSENCE OF THE EARNED LEGALIZATION ASPECT OF THE GRAND BARGAIN.

NOW, WE KNOW THAT BECAUSE OF THE FAILED -- BECAUSE OF THE FAILED EMPLOYER SANCTIONS WHICH THIS BILL MAKES SURE WE HAVE THE RIGHT TYPE OF EMPLOYER VERIFICATION AND THE RIGHT TYPE OF ENFORCEMENT, UNDOCUMENTED WORKERS HAVE MOVED CONSISTENTLY IN ORDER TO EARN A LIVELIHOOD AND SUPPORT THEIR FAMILIES IN A WAY THAT WOULD BE UNDERMINED BY THIS AMENDMENT.

GIVEN THE NEW INTERIOR ENFORCEMENT STRATEGY, IT SEEMS TO ME WHAT WE WILL SEE IS ROUNDING UP OF THOUSANDS OF UNDOCUMENTED WORKERS DURING WORK SITE ENFORCEMENT ACTIONS WHILE THEY -- WHILE WE ARE SUPPOSEDLY WAITING FOR THE TRIGGERS WHICH WE ENHANCED YESTERDAY, BY THE WAY, MAKING IT MORE DIFFICULT SO THE 18 MONTHS WILL NOT BE 18 MONTHS, IT WILL BE A LOT MORE TIME IF THAT ENDS UP BEING THE FINAL BILL.

SO, IN THAT EFFORT, WE ARE GOING TO HAVE VICTIMS WHO ULTIMATELY ARE NOT GOING TO BE SUBJECT TO THE OPPORTUNITIES WE SUPPOSEDLY SAY IS A PATHWAY TO EARN LEGAL SAGS AS PART OF THE OVERALL SOLUTION TO OUR PROBLEM.

AND BECAUSE THE AMENDMENT IS RETROACTIVE AND JUST IN GENERAL RETROACTIVITY AS A PROVISION OF LAW IS SOMETHING WE GENERALLY HAVE DISDAIN FOR, IT WOULD APPLY EVEN TO THOUGH APPLYING FOR ADMISSION AFTER THE DATE OF ENACTMENT, CLEARLY, IT PUTS IN JEOPARDY THE TOTAL ELEMENT OF THE LEGALIZATION PROCESS.

SECOND, TO GIVE A DIFFERENT PROVISION OF SENATOR CORNYN'S AMENDMENT, IT PERMITS SECRET EVIDENCE TO BE USED AGAINST AN INDIVIDUAL WITHOUT ANY OPPORTUNITY FOR IT TO BE REVIEWED.

THIS AMENDMENT GIVES THE ATTORNEY GENERAL -- AND WE'VE SEEN OF LATE WHAT IS CAPABLE OUT OF THE JUSTICE DEPARTMENT -- UNREVIEWABLE DISCRETION TO USE SECRET EVIDENCE TO DETERMINE IF AN ALIEN IS DESCRIBED IN AS A PERSON APPLYING FOR NATURALIZATION THAT COULD HAVE THEIR APPLICATION DENIED IT AND THEY WOULD NEVER KNOW THE REASON FOR THE DENIAL AND NEVER HAVE A CHANCE FOR APPEAL TO PROVE IT WAS WRONG.

IF A LAWFUL PERMANENT RESIDENT OF THE UNITED STATES, SOMEBODY WHO FOLLOWED THE RULES AND OBEYED THE LAW AND WAITED AND CAME IN AND IS NOW A LAWFUL REPRESENT AND MAY BE SERVING THE COUNTRY, WAS GIVEN -- GIVING MONEY TO TSUNAMI RELIEF AND ACCIDENTALLY THAT MONEY WENT TO A CHARITY CONTROLLED, FOR EXAMPLE, BY THE TIGERS IN SRI LANKA, THAT PERSON COULD BE DENIED CITIZENSHIP ON THE BASIS OF SECRET EVIDENCE AND THERE IS NO REVIEW IN THE COURTS.

IT ALLOWS DEPORTATION BASED UPON THE UNREVIEWABLE DETERMINATION BY THE EXECUTIVE BRANCH, THE UNREVIEWABLE DEMOCRATATION BY THE EXECUTIVE BRANCH, DETERMINATIONS THAT CAN BE BASED ON SECRET EVIDENCE THAT THE PERSON CANNOT EVEN SEE LET ALONE CHALLENGE.

FINALLY, JUST TO TALK ABOUT SOME OF THESE ELEMENTS -- THERE ARE OTHERS -- ALL OF THESE PROVISIONS ARE RETROACTIVE. ALL OF THEM.

ALL OF THEM INCLUDING -- INCLUDED IN THIS AMENDMENT ARE RETROACTIVE. THAT IS -- WHAT IS MORE UNFAIR THAN CHANGING THE RULES IN THE MIDDLE OF THE GAME.

THAT IS WHAT IT IS UNCONSTITUTIONAL IN CRIMINAL LAW AND STRONGLY OBJECTIONABLE IN THE CONTEXT LIKE IMMIGRATION LAW WITH SUCH CHANGES HAVING PROFOUND CONSEQUENCES.

WHY WOULD WE WANT TO REPEAT THE MISTAKES OF SOME OF THE PAST IMMIGRATION REFORM WE HAVE HAD. RETRO ACTIVITY LED TO INCREDIBLE HARDSHIP WITH THE MOST STRIKE DEPTH IMMIGRATION HARD LINERS QUESTIONING WHETHER THE LAWS HAD GONE TOO FAR.

RETROACTIVITY WAS ELIMINATED FROM ALL OF THESE PROVISIONS DURING JUDICIARY COMMITTEE MARKUP IN PAST LEGISLATION BUT NOW IT REEMMERGES ONCE AGAIN.

LOOK, WE CAN BE TOUGH, WE CAN BE SMART.

THE UNDERLYING SUBSTITUTE DOES SO WERE TO MOVE US FORWARD IN THIS REGARD.

BUT AT THE END OF THE DAY, LET US NOT UNDERMINE THE VERY ESSENCE OF CONSTITUTIONAL GUARANTEES THAT HAVE BEEN UPHELD BY COURTS OF JUDICIAL REVIEW, OF DUE PROCESS, WHAT MAKES AMERICAWORTH FIGHTING AND DYING FOR, THE BILL OF RIGHTS THAT GRPS THE RIGHTS IT ALL OF US FOR ITS ENFORCEMENT THAT MAKES US SO DIFFERENT FROM THE REST OF THE WORLD.

WE ARE MOVING IN THIS BILL BY A SERIES OF AMENDMENTS -- SOME THAT WOULD HAVE BEEN ADOPTED AND SOME THAT ARE ALREADY PENDING AND OTHERS, I FEAR, MAY COME -- THAT MOVE US INTO SUCH A STATE IN WHICH THAT IS CONTINUOUSLY ERODED TO A GREAT ALARM. AND I HOPE THE SENATE WILL REJECT THESE BECAUSE IN TERMS OF THEIR PURSUIT AND ENFORCEABILITY, I THINK AT THE END OF THE DAY THEY WILL BECOME REAL CHALLENGES.

WE WILL OVERTURN STATES AND MUNICIPALITIES.

THE ENFORCEMENT -- WILL THERE BE PENALTIES AGAINST STATES AND MUNICIPALITIES WITH A DIFFERENT VIEW OF PUBLIC SAFETY?

WHAT WILL WE DO, PERMIT SECRET EVIDENCE? IS THAT THE NEW STANDARD FOR US, SECRET EVIDENCE THAT IS NOT SINGLE TO REVIEW, NOT SUBJECT TO BE CONTESTED?

WHAT ARE WE GOING TO PERMIT NOW, RETRO ACTIVITY AS A RULE OF LAW FOR THE UNITED STATES?

YOU NEVER KNOW WHAT YOU DID BEFORE MAY HAVE BEEN RIGHT OR WRONG, THAT'S THE ESSENCE OF WHY WE DON'T LIKE RETROACTIVITY.

WE SAY, THIS IS THE LAW, FOLLOW THIS LAW. AND, WE EXPECT THEM IT DO IT BUT WE ALSO DON'T CHANGE IT ON THEM.

AND THEN, IF WE PASS A NEW LAW AND SAY, BI, THAT WAS WRONG, YOU COULD NOT DO THAT ALTHOUGH WE TOLD YOU YOU COULD, BUT, RETROACTIVELY WE CHANGE, AND NOW WE CATCH YOU IN A SET OF CIRCUMSTANCES IN WHICH YOU HAVE COMMITTED A CRIME. THAT'S WHY WE DO NOT DO THAT, GENERALLY, IN THE LAW. THAT'S WHY THIS CORNYN AMENDMENT SHOULD BE DEFEATED.

WITH THAT, MR. PRESIDENT, I YIELD THE FLOOR.

# # #