Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Reserving the right to object, I simply want to indicate, as one member from the Wisconsin delegation, there is an effort to be reasonable with respect to the hour of the vote and to limit our rights with respect to the 30 hours respectively. Our goal is certainly not to cause people to vote at a very extreme hour.

Mr. FEINGOLD. Reserving the right to object, I ask unanimous consent with regard to the cloture vote which the Senator from Alaska described, that the vote take place at 10 a.m. on Saturday; and that should cloture be invoked, no more than 21 hours of debate remain.

Mr. FEINGOLD. Is there a unanimous consent request pending?

Mr. FEINGOLD

Mr. FEINGOLD. I object.

Mr. FEINGOLD. I object.

Mr. FEINGOLD. I ask for the reading.

Mr. FEINGOLD

Mr. FEINGOLD. I thank the majority leader.

Mr. FEINGOLD. Reserving the right to object, I ask the majority leader a question, if I could. We had an understanding prior to removing the quorum call that there is no time limitation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I object.

Mr. FEINGOLD. I object.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to join my distinguished colleagues, Senators Leahy, Brownback, and Jeffords, to introduce a bill that will reduce the likelihood that people fleeing genuine persecution in their homelands and seeking refuge in America will be unfairly returned to their countries. Mr. President, as you know, our nation has been built by people who arrived on our shores from all over the world. Immigrants have enriched our nation economically, culturally, and in so many other invaluable ways. I don't think anyone can dispute that, of all the countries in the world, our nation has the deepest, richest commitment to welcoming all people who want to make a new home and a new life. At the same time, Mr. President, our nation also has a deep tradition of welcoming those who are fleeing oppression in their native land. From the pilgrims who set foot in present day Massachusetts and Virginia, to the Kosovars who fled brutality in their homeland earlier this year, America has been a safe refuge for those fleeing persecution. Our nation's first president, George Washington, said: ``America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions.'' George Washington said those words in 1783. One hundred and one years later, France would present our country with a gift, a statue called ``Liberty Enlightening the World.'' In 1884, that title was a profound statement of our nation's past, our present and hope for the future. ``Liberty Enlightening the World'' later became known as the Statue of Liberty. The Statue of Liberty has these words inscribed on her: . . . Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door! Unfortunately, Mr. President, our current asylum and immigration laws have nearly slammed the door shut on victims of persecution, even those who are sure to suffer if returned to their home countries. Current law originates with the passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act. That law was an attempt to combat illegal immigration. But in the process, Congress denied victims of persecution the protection that our nation historically has offered. The current system provides for the immediate deportation of individuals who arrive without travel documents precisely in order. Now, Mr. President, it's appropriate that we require these documents, but people who have fled torture and great brutality may not have proper documentation because of the circumstances under which they fled their homelands. As a result, genuine victims of persecution face the risk of being turned away at our borders and put on the next plane back to face imprisonment, torture or death. The 1996 law effectively empowers low level INS officers to summarily make the life and death decision as to whether to deport an asylum seeker. Prior to 1996, those decisions were made by an immigration judge. We must return a judicial role to the review of asylum claims. As my colleagues who were here in 1995 and 1996 may recall, the 1996 law was enacted in reaction to a flurry of concern that our border controls were too lax. The debate on the 1996 law was fueled by legitimate concern over criminals who managed to enter the country and commit acts of terrorism or other crimes. In response, the INS began a sensible tightening of the asylum process. In 1994 and 1995, the INS ceased issuing work authorizations at the border. Instead, asylum seekers had to wait until an adjudication of their case before receiving work authorization. As a result, claims for asylum dropped dramatically-- those who were seeking work but did not have a legitimate fear of persecution were no longer claiming asylum. The INS reforms were effective. But the 1996 law went too far. In our rush to keep undesirable asylum applicants out, Congress created a system where those with bona fide asylum claims face the great risk of being immediately deported to face the wrath of oppressive home governments without a real chance to make their case. Because an INS officer has the authority to deport refugees immediately, with no record keeping requirement, it has been difficult to determine exactly how many genuine refugees with a valid fear of persecution in their home countries have been turned away at our airports and borders as a result of the 1996 law. Organizations like the Lawyers Committee for Human Rights, however, have been able to collect some data on the extent of the problem. One of the most troubling stories is the case of a 21-year-old Kosovar Albanian known as ``Dem.'' In October 1998, Serb police seized Dem at his home, beat him, and threatened to kill his family. This abuse occurred over a period of ten days. When the Serb police finally released Dem, he fled Kosovo. He eventually made his way to the United States in January of this year, landing in California via Mexico City. When he arrived, the INS arranged for a Serbian translator to assist by telephone with its questioning of Dem. But Dem, a Kosovar Albanian, could not speak Serbian. After the translator spoke with Dem, the translator said something to the INS officer. The INS officer promptly handcuffed and fingerprinted Dem and then put him on a plane back to Mexico City. Fortunately, Dem was not returned to Kosovo. Dem tried re-entering the United States and on this second attempt, he was allowed to apply for asylum. But the facts supporting Dem's asylum claim had not changed. We must fix a system that produces such arbitrary results where people's lives, and American ideals, are at stake. We don't know exactly how many victims of real persecution have been immediately deported, and we obviously don't know exactly what has happened to each victim since enactment of the 1996 law. What we do know is that an asylum seeker who is fleeing torture, abuse or death faces the risk of being kicked out of our country, without even obtaining a perfunctory hearing before an immigration judge. The Refugee Protection Act of 1999 will return fairness and due process to the treatment of asylum seekers. For non-emergency migration situations, the bill would restore the pre-1996 law, when immigration judges were involved in the decision to deport someone who claimed asylum. The current process will continue to apply in emergency migration situations and would designate the Attorney General as the official with authority to determine when an emergency migration situation exists. The bill also would provide that an emergency cannot exist for more than 90 days, unless the Attorney General, after consultation with the Senate and House Judiciary Committees, determines that the emergency situation continues to exist. Mr. President, this is a sensible bill that allows us to scrutinize those who come to our borders, but honors our best traditions and returns fairness and humanity to our treatment of those who are fleeing persecution. I urge my colleagues to join me and Senators Leahy, Brownback and Jeffords in fighting for basic human dignity, decency and justice. Let us lift the torch of ``Liberty Enlightening the World'' once again. Let us not reflexively turn away those whose very lives may depend on a fair hearing as they seek refuge in the United States.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to join my distinguished colleagues, Senators Leahy, Brownback, and Jeffords, to introduce a bill that will reduce the likelihood that people fleeing genuine persecution in their homelands and seeking refuge in America will be unfairly returned to their countries. Mr. President, as you know, our nation has been built by people who arrived on our shores from all over the world. Immigrants have enriched our nation economically, culturally, and in so many other invaluable ways. I don't think anyone can dispute that, of all the countries in the world, our nation has the deepest, richest commitment to welcoming all people who want to make a new home and a new life. At the same time, Mr. President, our nation also has a deep tradition of welcoming those who are fleeing oppression in their native land. From the pilgrims who set foot in present day Massachusetts and Virginia, to the Kosovars who fled brutality in their homeland earlier this year, America has been a safe refuge for those fleeing persecution. Our nation's first president, George Washington, said: ``America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions.'' George Washington said those words in 1783. One hundred and one years later, France would present our country with a gift, a statue called ``Liberty Enlightening the World.'' In 1884, that title was a profound statement of our nation's past, our present and hope for the future. ``Liberty Enlightening the World'' later became known as the Statue of Liberty. The Statue of Liberty has these words inscribed on her: . . . Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door! Unfortunately, Mr. President, our current asylum and immigration laws have nearly slammed the door shut on victims of persecution, even those who are sure to suffer if returned to their home countries. Current law originates with the passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act. That law was an attempt to combat illegal immigration. But in the process, Congress denied victims of persecution the protection that our nation historically has offered. The current system provides for the immediate deportation of individuals who arrive without travel documents precisely in order. Now, Mr. President, it's appropriate that we require these documents, but people who have fled torture and great brutality may not have proper documentation because of the circumstances under which they fled their homelands. As a result, genuine victims of persecution face the risk of being turned away at our borders and put on the next plane back to face imprisonment, torture or death. The 1996 law effectively empowers low level INS officers to summarily make the life and death decision as to whether to deport an asylum seeker. Prior to 1996, those decisions were made by an immigration judge. We must return a judicial role to the review of asylum claims. As my colleagues who were here in 1995 and 1996 may recall, the 1996 law was enacted in reaction to a flurry of concern that our border controls were too lax. The debate on the 1996 law was fueled by legitimate concern over criminals who managed to enter the country and commit acts of terrorism or other crimes. In response, the INS began a sensible tightening of the asylum process. In 1994 and 1995, the INS ceased issuing work authorizations at the border. Instead, asylum seekers had to wait until an adjudication of their case before receiving work authorization. As a result, claims for asylum dropped dramatically-- those who were seeking work but did not have a legitimate fear of persecution were no longer claiming asylum. The INS reforms were effective. But the 1996 law went too far. In our rush to keep undesirable asylum applicants out, Congress created a system where those with bona fide asylum claims face the great risk of being immediately deported to face the wrath of oppressive home governments without a real chance to make their case. Because an INS officer has the authority to deport refugees immediately, with no record keeping requirement, it has been difficult to determine exactly how many genuine refugees with a valid fear of persecution in their home countries have been turned away at our airports and borders as a result of the 1996 law. Organizations like the Lawyers Committee for Human Rights, however, have been able to collect some data on the extent of the problem. One of the most troubling stories is the case of a 21-year-old Kosovar Albanian known as ``Dem.'' In October 1998, Serb police seized Dem at his home, beat him, and threatened to kill his family. This abuse occurred over a period of ten days. When the Serb police finally released Dem, he fled Kosovo. He eventually made his way to the United States in January of this year, landing in California via Mexico City. When he arrived, the INS arranged for a Serbian translator to assist by telephone with its questioning of Dem. But Dem, a Kosovar Albanian, could not speak Serbian. After the translator spoke with Dem, the translator said something to the INS officer. The INS officer promptly handcuffed and fingerprinted Dem and then put him on a plane back to Mexico City. Fortunately, Dem was not returned to Kosovo. Dem tried re-entering the United States and on this second attempt, he was allowed to apply for asylum. But the facts supporting Dem's asylum claim had not changed. We must fix a system that produces such arbitrary results where people's lives, and American ideals, are at stake. We don't know exactly how many victims of real persecution have been immediately deported, and we obviously don't know exactly what has happened to each victim since enactment of the 1996 law. What we do know is that an asylum seeker who is fleeing torture, abuse or death faces the risk of being kicked out of our country, without even obtaining a perfunctory hearing before an immigration judge. The Refugee Protection Act of 1999 will return fairness and due process to the treatment of asylum seekers. For non-emergency migration situations, the bill would restore the pre-1996 law, when immigration judges were involved in the decision to deport someone who claimed asylum. The current process will continue to apply in emergency migration situations and would designate the Attorney General as the official with authority to determine when an emergency migration situation exists. The bill also would provide that an emergency cannot exist for more than 90 days, unless the Attorney General, after consultation with the Senate and House Judiciary Committees, determines that the emergency situation continues to exist. Mr. President, this is a sensible bill that allows us to scrutinize those who come to our borders, but honors our best traditions and returns fairness and humanity to our treatment of those who are fleeing persecution. I urge my colleagues to join me and Senators Leahy, Brownback and Jeffords in fighting for basic human dignity, decency and justice. Let us lift the torch of ``Liberty Enlightening the World'' once again. Let us not reflexively turn away those whose very lives may depend on a fair hearing as they seek refuge in the United States.

Mr. FEINGOLD

Mr. FEINGOLD. Isn't there a substantial difference between 6 weeks and 6 months of rent? I would say that is significant.

Mr. FEINGOLD. Mr. President, I ask the Senator, didn't we come to the conclusion that we are talking 6 weeks and not 6 months? Would the Senator concede that is a big difference, 6 weeks versus 6 months?

Mr. FEINGOLD. Mr. President, I appreciate the comments of the Senator from Alabama. Frankly, this isn't really about a great passion on this issue. All I am trying to achieve is some balance. I do think landlords should be paid their rent. I do think it is terrible when people abuse the system. But in case after case where the Senator from Alabama has presented an abuse, we have tried to address it. What it all came down to, when I asked him what he still objected to, was that he fundamentally doesn't believe in the principle behind the bankruptcy system, which is giving people an opportunity to get back on their feet and providing a little breathing room in the case of the type of person I described. I described a single woman with children who is not getting her child support, who is in danger of being booted out of that apartment. When the Senator responds, he talks about the people who game the system, people who have different debts all over the place and who can hire sophisticated attorneys. That is not who we are talking about. In fact, I refer back to Mr. Sommer's summary of what my amendment would do. The amendment is actually perfectly tailored to the situation of the person who can't hire a lawyer or afford a lawyer. That is who we are talking about. We are talking about people who certainly are not sophisticated enough or able to game the bankruptcy system. They are not in that category at all. They are people who simply want to stay in their apartment. They have financial problems, but once they file for bankruptcy, they want to be able to start paying that rent again. Let me read what Mr. Sommer said. He is not a person who works on bankruptcy. He is a distinguished author on bankruptcy law. He wrote to me: To the extent there are abuses in the current system, your amendment will provide prompt and efficient relief by giving landlords a streamlined procedure that could be pursued quickly and without an attorney. Let me reiterate that. So much of the argument of the Senator from Alabama is premised on the idea that this is somehow a sweet deal for lawyers. What this expert says is that these provisions allow this kind of opportunity for a person who needs it without an attorney. He writes: Your amendment would make it impossible to obtain any significant delay simply by filing a bankruptcy petition, as can occur today. This expert makes it very clear that this is a significant improvement over current bankruptcy law, of which the Senator from Alabama is critical. Even with my amendment, he says it is almost impossible to obtain any significant delay simply by filing a bankruptcy petition. He concedes that some of that could happen today, as the Senator from Alabama has pointed out. Here is the last line, the critical piece that the Senator from Alabama simply won't address, when it comes to one of the purposes of Federal bankruptcy law. Mr. Sommer says: But it would not hurt the innocent family, struggling to get its finances together, that is able to begin making rent payments and cure its rent default. That is all I am trying to do, to get some balance here so that an innocent family that is trying to get its act together and finances together doesn't get booted out of its apartment. I yield the floor.

Mr. FEINGOLD. I would suggest to the Senator, you described the most egregious and extreme possibility under our amendment. And you were talking about 4 months, 5 months, 6 months. Not only is that not accurate, that is clearly not my intent. My intent, as I have indicated time and again, is to try to make sure a person who is in this position has to pay that rent once they file for bankruptcy, and keep paying it or else they are out of luck. And the goal, just so it is clear to the Senator from Alabama, is obviously not to create that kind of scenario you described. If fact, you just made our case, that the maximum exposure there would probably be about 6 weeks, not 6 months, as you suggested.

Mr. FEINGOLD. If I could follow up, under the scenario you described, isn't it true that you are talking about a maximum of 6 weeks, and not 6 months? Wouldn't you concede that?

Mr. FEINGOLD. Isn't it a fact----

Mr. FEINGOLD. Is the Senator aware that our amendment would prohibit what you are reading right there?

Mr. FEINGOLD. What objection do you have?

Mr. FEINGOLD. Will the Senator yield for a question?

Mr. FEINGOLD. Mr. President, I am disappointed in the response of the Senator from Alabama. His comments to the effect that the only thing we should be considering is State laws having to do with leases and contracts almost suggests to me he does not believe there is any role for Federal bankruptcy law. Bankruptcy law is contemplated in the U.S. Constitution. It certainly was not understood there would be no role at all for Federal bankruptcy law to have an impact on people's lives in our States, whether it be Alabama or Wisconsin. The automatic stay is an integral part of the federal bankruptcy laws and its purpose is not just to protect the property of the estate but also to provide some breathing room for the debtor. I will be the first to concede to the Senator from Alabama that one of the concerns in bankruptcy has to be making sure creditors get paid as much as possible and as efficiently as possible. That is legitimate. And a second important concern is to make sure people do not abuse the bankruptcy system. But the concern the Senator from Alabama refuses to address, refuses to discuss, is that the bankruptcy law is supposed to help people get back on their feet. I will tell you that one lousy way to help people get back on their feet is to kick them out of their apartments, when it serves no financial interest of the landlord for that to happen. The Senator from Alabama simply refuses to address the example I gave of a single woman with children, who is not getting her child support, who wants to and is prepared to pay her rent and is simply running into trouble and is ready to pay it again after she files for bankruptcy and has a stay against her other creditors. In the world that the Senator from Alabama portrays, this person loses out. This is deeply troubling to me. What more can you do than listen to a colleague give hypothetical after hypothetical after hypothetical about what might be wrong with the amendment and try to specifically address those concerns? That is exactly what I have done in making the changes contained in my second degree amendment. So, yes, efficiency in preventing abuses is an important principle. Let me review: The Senator from Alabama, both in committee and on the floor, has attempted to suggest that all kinds of abuses will still continue under the amendment that we have. The trouble is, the abuses he cites and the statistics he cites are all irrelevant to my amendment. My amendment will prevent the abuses. He talks about the abuse of lawyers who do repeat filings, especially in Los Angeles County. We addressed that. Under our amendment, if you do multiple filings, you are out of luck; the stay is lifted automatically. Essentially, the provisions of the bill that the Senator from Alabama prefers apply in that situation. In committee he argued against my amendment by saying: What happens if a landlord wants to move back into his own place? All right. We took care of that. We address that concern in the amendment. But then he says: What happens if his brother wants to move into the place? Well, we took care of that concern in this second degree amendment that I just offered. Here is another example, because instead of admitting that we have actually dealt with some of these hypotheticals, he says: What happens if the landlord has a signed agreement for a new lease prior to the filing of the bankruptcy? We addressed that concern too, but that still isn't good enough. But I tell you what frustrates me the most. The Senator from Alabama keeps saying that people will live rent free. It is as if I have said nothing here on the floor at all. It is as if I have not said, time after time after time, that under my amendment a tenant cannot live rent free for 5 or 6 months, as the Senator has suggested. After filing for bankruptcy, if you do not pay your rent as it comes due, you are out of there under my amendment. So what is all this talk about abuses, when in each and every hypothetical the Senator has proposed in committee or on the floor we have addressed his concern? We have addressed abuse. We have addressed the fact that the system has to be efficient. But what has not been addressed and what this amendment is trying to deal with is what the Senator from Alabama simply ignores. He gives no hope; he gives no alternative to the person that I describe: the woman with children, who is not getting her child support, who is willing and able to pay her rent once she files for bankruptcy, but the Senator from Alabama would have her booted out of her apartment with her kids at the very moment when she is trying to get back on her feet. So I urge the Senator from Alabama to actually review all of my attempts to try to address his concerns so that I can feel at least that this has been a process where he has raised concerns that he was worried about and we tried to deal with them. That is what we have been doing in debating and modifying this amendment. I know on other issues we have been able to do that with the Senator, and I appreciate that. But I urge him, surely there has to be a better answer than just ``tough luck'' for these individuals who I have described, who are not in a position where they are going to abuse the system, who cannot get month after month of free rent living, because that is exactly what we dealt to prevent in the amendment. We have specifically dealt with the problem of a person who tries to get more than 1 month of rent free. The whole problem with this overall bill is sort of symbolized by this debate. There needs to be some balance. I have recognized, in that spirit, the call of the Senator from Alabama for more efficiency, the call of the Senator from Alabama for preventing abuses. But where is the balance? Where is the recognition that there are human beings with limited resources who may need the opportunity to stay in that apartment and pay the rent after the bankruptcy is filed? Mr. President, I yield the floor.

Mr. FEINGOLD. Mr. President, this second-degree amendment incorporates the modifications I just described. I hope it will be acceptable to the managers of the bill. I have actually shared these ideas and changes with the managers and with the Senator from Alabama. If not, I urge my colleagues to support it. I yield the floor. Exhibit I Law Offices, Miller, Frank & Miller, Philadelphia, PA, November 10, 1999. Senator Russ Feingold, Hart Senate Office Building, Washington, DC. Dear Senator Feingold: I listened to some of the debate concerning your amendment that would moderate some of the landlord-tenant provisions of S. 625. I am writing to let you know that some of the statements made in opposition to your amendment are not in my experience accurate. (I have represented thousands of low-income consumer debtors over the last 25 years and also spend time educating and consulting with other bankruptcy lawyers around the country.) The statement was made that landlords always prevail in automatic stay motions. This is not correct. In my personal experience, I doubt that landlords have prevailed in even 20% of the cases. In most of the other cases, the family paid the rent due and the motion was either withdrawn or denied. Overall, more than 20% of landlord stay motions probably are granted, because no one denies that in a few cities there have been widespread abuses (spurred by nonattorney petition preparers, not by attorneys) and when landlords have gone to court they have prevailed in almost all such cases. However, even in these places the problem was being solved even without legislation. I noticed that the figures given for Los Angeles county (where the abuses were worst) were from 1996. It is my understanding that changes in state law and in bankruptcy court procedures have significantly reduced the abuses since then. The more important point is that in most cases, no motion is brought by the landlord. The automatic stay does what it was intended to do. In these cases, the family that was facing eviction cures the rent arrears and remains in its apartment. The landlord is made whole, and the family is permitted the time necessary to reorganize its finances. Thus, even if it is true that in most cases where landlords seek relief from the stay, such relief is granted (no data is actually kept on the results of such motions), in the large majority of bankruptcy cases tenants catch up on their rent arrears, the landlord is satisfied, no motion for relief from the stay is brought, and the family remains in its home. To the extent there are abuses in the current system, your amendment will provide prompt and efficient relief by giving landlords a streamlined procedure that could be pursued quickly and without an attorney. Your amendment would make it impossible to obtain any significant delay simply by filing a bankruptcy petition, as can occur today. But it would not hurt the innocent family, struggling to get its finances together, that is able to begin making rent payments and cure its rent default. Please contact me if you need further information about tenants in bankruptcy. Very truly yours, Henry J. Sommer.

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

Mr. FEINGOLD. Mr. President, I send a second-degree amendment to the desk.