The Border Security, Economic Opportunity, and Immigration Modernization Act, S.744

Prepared for the Senate Judiciary Committee

By Janice Kephart on April 22, 2013

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Senate Committee on the Judiciary
"The Border Security, Economic Opportunity , and Immigration Modernization Act, S.744"

Monday, April 22, 2013
Hart Senate Office Building , Room 216
10:00 a.m.
Oral Testimony of
Janice L. Kephart
former border counsel, 9/11 Commission
principal, 9/11 Security Solutions

Chairman Leahy, Ranking Member Grassley. Thank you for having me here today. I appreciate very much this committee's continued interest and effort in securing our borders and protecting our national security.

I begin by putting the bill in context of both the illegal border problem and the legal immigration problem.

On the legal immigration side, in light of the Boston Marathon terrorist attack, we are reminded once more that border security is essential to national security. Historically, the 1986 amnesty program was fraudulently used five times by terrorists in attempts to establish residency. Three of five succeeded in attaining the benefit, but the key for each of them was that simply applying for the benefit allowed them to embed long enough to commit the terrorist act. The effect of today's bill won't be much different from the 1986 bill. Why? Two recent examples of the immigration system serving up immigration benefits to terrorists show the system is not much better now at discerning terrorists than it was in 1986. First, Boston Marathon terrorist 19-year-old Dzhokhar Tsarneav just received his naturalization on September 11 this past year. Was there really no way to learn of his terrorist leanings just a few months ago? Less well known, a Syrian known to be deeply affiliated with the 9/11 hijackers and assassinated al Qaeda leader al-Awlaki, was recently granted asylum on his third attempt despite federal law enforcement reopening the case.

Second, the illegal problem is simple: the southwest border is far from secure. Over both the Texas and Arizona borders, we are seeing a huge surge in illegal crossings, with Texas Border Patrol saying it is looking at tent cities to deal with the onslaught, and central Arizona witnessing a 494 percent increase in illegal crossings from August to November of last year. Here's the issue: there is no way that illegal entrants who have never encountered our immigration or criminal system can be vetted as to who they say they are. And with 10,000 to 20,000 foreign-born terrorists that federal law enforcement know reside in the United States, that creates a serious concern for more terrorists receiving legalization under this bill.

There are problems with the border security "triggers" in the bill as well.

Overall, the concept of a Comprehensive Southern Border Strategy is useful, but since the Homeland Security Secretary is not truly required to ensure border security, just state that it exists, that does not help us truly ensure border security.

The metric used in the bill to determine a 90 percent "effectiveness rate" depends on a 100 percent detection rate of apprehensions and turnbacks, which is not close to existing today. If there is not 100 percent detection, then the 90 percent effectiveness rate set forth in the equation will be inaccurate.

So, how would a 100 percent detection rate best be achieved? We aren't told. Unfortunately, that makes the metric fail. Moreover, the metric only applies to three of nine Border Patrol sectors. That's an open invitation for smugglers to realign with the new metric, and use whatever other six sectors are not considered high risk.

Mandatory E-Verify in the bill holds no consequences for illegal aliens who fail E-Verify. Moreover, E-Verify's construct adds three levels of review to a non-confirmation, culminating in the alien receiving four opportunities for authorization. The practical result is that this appellate process for the alien creates an extremely difficult atmosphere for an employer to terminate an employee, even when clearly the grounds for authorization are nonexistent.

In terms of the exit system requirement, this nation most certainly needs to fulfill the mandate to complete a comprehensive exit system that includes air, land, and sea ports of entry. However, S. 744's exit component fails to include the largest volume of crossings at land borders. In addition, the exit component is unnecessary for two reasons: (1) six prior inconsistent exit laws have already complicated the exit requirement enough; and (2) just a few weeks ago congressional appropriators used their purse strings to realign exit implementation to Customs and Border Protection. CBP owning exit implementation may be the game-changer we need to get the program done because not only does CBP need the exit data to conduct admissions, but its sister agencies in State use it for visa adjudication and ICE needs better data to determine overstays.

Thank you for the opportunity to testify. I am happy to receive questions.