lozano6.txt - Notepad - ACLU of Pennsylvania

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PEDRO LOZANO, et al,            :
               Plaintiffs       :
               vs               :   #06-CV-1586
CITY OF HAZLETON, et al,        :
               Defendants       :

                            VOLUME 6

               BEFORE:          HONORABLE JAMES M. MUNLEY
                                UNITED STATES DISTRICT JUDGE
               PLACE:           SCRANTON, PENNSYLVANIA

               PROCEEDINGS:     NON-JURY TRIAL

               DATE:            MONDAY, MARCH 19, 2007

For the Plaintiffs: WITOLD J. WALCZAK, ESQ.
                    OMAR C. JADWAT, ESQ.
                    American Civil Liberties Union of PA &
                    313 Atwood Street
                    Pittsburgh, PA 15213
                    FOSTER MAER, ESQ.
                    DENISE ALVAREZ, ESQ.
                    JACKSON CHIN, ESQ.
                    GHITA SCHWARZ, ESQ.
                    Puerto Rican Legal Defense & Education
                    99 Hudson Street
                    New York, NY 10013


                    THOMAS G. WILKINSON, JR., ESQ.
                          Page 1
                     THOMAS B. FIDDLER, ESQ.
                     ILLAN ROSENBERG, ESQ.
                     Cozen O'Connor
                     1900 MARKET STREET
                     Philadelphia, PA 19103
                     DAVID VAIDA, ESQ.
                     Law Office of David Vaida
                     137 North 5th Street
                     Allentown, PA 18102
                     SHAMAINE A. DANIELS, ESQ.
                     Community Justice Project
                     118 Locust Street
                     Harrisburg, PA 17101

For the Defendants: KRIS W. KOBACH, ESQ.
                    5100 Rockhill Road
                    Law 1-200
                    Kansas City, MI 64110
                     HARRY G. MAHONEY, ESQ.
                     DREW B. ADAIR, ESQ.
                     CARLA P. MARESCA, ESQ.
                     Deasey, Mahoney, & Bender, LTD.
                     1800 JFK Boulevard
                     Philadelphia, PA 19103
                     ELIZABETH GALLAWAY, ESQ.
                     Mountain States Legal Foundation
                     2596 South Lewis Way
                     Lakewood, CO 80227


                         WITNESS INDEX

Stephen Yale-Loehr      99,111   107,140     160        162
Samuel Monticello        163      179        210        215
(Resumed - as of cross)
Chief Robert Ferdinand    216
(As of Cross)

George Borjas            4,24      10,42       94         97

                     EXHIBIT INDEX

                          Page 2
     Exhibit   No.   205                         99
     Exhibit   No.   206                        163
     Exhibit   No.   207                        163
     Exhibit   No.   208                        163
     Exhibit   No.   154 through 159            165
     Exhibit   No.   48                         183
     Exhibit   No.   94                         197
     Exhibit   No.   95                         203
     Exhibit   No.   80                         229
     Exhibit   No.   113                        238
     Exhibit   No.   81                         244
     Exhibit   No.   73 through 77              256
     Exhibit   No.   188 through 1              256

     Exhibit   No.   170                         25
     Exhibit   No.   171                         25
     Exhibit   No.   95                         189
     Exhibit   No.   105                        191


 1              THE COURT:     Good morning.   It is dry out and the
 2   roads are good.       I was just talking to the lawyers, and, of

 3   course, everybody has a lot of different schedules and what

 4   we're going to do is try to pick up the pace a little bit.
 5   We're going to get started earlier in the morning.        We will

 6   start at 8:30 and maybe go a little later in the afternoon.

 7   What we would like to do, if it's at all possible, to try to
 8   get the remainder of the testimony in by Wednesday and try to

 9   have the closing arguments on Thursday.
10              I mention that because we have had a lot of calls
11   from various groups that are interested in when the closing

12   arguments are going to be.
13              Mr. Wilkinson.
14              MR. WILKINSON:     Good morning, Your Honor.
15              THE COURT:     The next witness.
16              MR. WILKINSON:     The Defendants are calling Dr.
17   Borjas out of turn.
18              THE COURT:     Mr. Kobach.
                                   Page 3
19   GEORGE BORJAS, called as a witness, having been duly sworn or

20   affirmed according to law, testified as follows:
21                          DIRECT EXAMINATION

23        Q.    Could you please tell the Court your current
24   profession?

25        A.    I'm a professor at the Kennedy School of Government


 1   at Harvard University.    My current title is the Robert W.

 2   Scrivner professor of economics and social policy.
 3        Q.    And for how long have you been teaching at Harvard
 4   University?

 5        A.    I've been at Harvard for 12 years.
 6        Q.    And just to go back a little bit over your history,

 7   Dr. Borjas, where were you born?

 8        A.    I was born in Cuba.
 9        Q.    When did you immigrate to the United States?

10        A.    When I was 12, in 1962.

11        Q.    And where were you educated in college and then
12   graduate school?

13        A.    I went to college at St. Peters College in Jersey
14   City, New Jersey and then I went to graduate school at
15   Columbia University.   I got my Ph.D. in economics.
16              After I left Columbia, I had a post-doctorate at
17   the University of Chicago and then after that, my first real
18   academic job was at the University of California at Santa
19   Barbara.
20        Q.    Let me stop you there.    You got a Ph.D. in
21   economics.    Was your post-doc in economics as well?
22        A.    Yes, it was.
                                 Page 4
23        Q.     What was your master's thesis concerning -- I'm

24   sorry -- your Ph.D. thesis?
25        A.     It was entitled something of a job turnover,


 1   something about people changing jobs and the impact of
 2   changing jobs and how they did after they changed jobs,
 3   something like that.

 4        Q.     And then you started to mention your first academic
 5   position.
 6        A.     My first academic position after the post-doctorate
 7   fellowship was as assistant professor of economics at the

 8   University of California at Santa Barbara.     I was there for

 9   about 10 years or so, and then I went to Harvard for leave,
10   and then I went back to California but moved over to the San

11   Diego campus, University of California at San Diego.    I was

12   there for five or six years and then I came to Harvard.
13        Q.     Did you become a tenure full professor at USC Santa

14   Barbara?

15        A.     Yes, I did.
16        Q.     What is your current rank at Harvard?

17        A.     I'm full professor with a chair.
18        Q.     And what are the classes that you teach at Harvard

19   University?
20        A.     In almost every year, I will teach a class in
21   microeconomic theory.     All Kennedy school students are
22   required to take that class.     It is quite large and we break
23   it up into sections, and not only do I teach a section of
24   that class, but I'm also the course head of the whole
25   structure.

                                 Page 5

 1               In addition to the microeconomic theory class, I
 2   teach a class either in immigration; namely, the economic
 3   impact of immigration, or a class on labor economics,
 4   depending on the year.

 5        Q.     How frequently do you teach the course on the
 6   economic impact of immigration?
 7        A.     At least every other year.      I taught it last fall,

 8   for example.
 9        Q.     When did you begin your research on the wage impact
10   of immigration, legal and illegal?
11        A.     Back in the early 1980s; 1980, '81, and the reason

12   that I began at the time, at that time I was in California

13   and California was really sort of the forefront of the whole
14   immigration influx and you could literally see the place

15   changing overnight and that is what sparked my interest at

16   the time.
17        Q.     And I see from your CV that you have testified

18   before Congress.    How many times have you testified?

19        A.     Three or four times.       The last time was also last
20   fall.

21        Q.     And has your testimony before Congress been on the
22   subject of immigration and/or wage impacts of immigration?

23        A.     Yes, they have.
24        Q.     Has any member of Congress ever questioned your
25   expertise?


 1        A.     Not in my presence, okay.
 2        Q.     In your report, you mention a case in which you

                                   Page 6
 3   have previously served as an expert witness.    What case is
 4   that?
 5        A.    I have served as an expert witness in several
 6   cases.    One of the earliest ones that I did was back in the
 7   early 1980s and it involved the Department of Health,
 8   Education and Welfare which was accused of discrimination at

 9   the time, employment discrimination.
10              I have also done work for the State of Alabama;
11   namely, the University of Alabama was sued by -- I'm trying

12   to remember exactly who sued them.    It was involving in a
13   class action lawsuit regarding segregation at the University
14   of Alabama.    I was involved in that.
15              More recently, I was involved in a case in San

16   Francisco involving landlord Paul Reddy who had hired illegal

17   immigrants through some scheme.
18        Q.    And I understand that since you drafted your report

19   at the end of 2006, you have also -- you have since then been

20   asked to serve as an expert in the case of Tyson versus
21   Trollinger?

22        A.    That's right.   I was actually asked before, but I

23   hadn't done any work on it.    So since the report was
24   completed, I have actually begun to do work on the Tyson

25   case, yes.


 1        Q.    Who are the Plaintiffs in the Tyson case?
 2        A.    The Tyson case is a case where Tyson, which is a
 3   big meatpacking firm, poultry, basically were sued by their
 4   employees in a class action lawsuit because Tyson hired
 5   illegal immigrants and the Plaintiffs claim that that hiring
 6   led to the depression of wages, and they are suing for, you

                                Page 7
 7   know, damages.
 8          Q.   And are the lawfully working Plaintiffs who are
 9   suing their former or current employer in the Tyson case, are
10   they suing for trebled damages under the provision of the
11   U.S. Law that allows workers to do that?
12          A.   That is what counsel has told me, yes.

13          Q.   Are you an editor of any peer review journals in
14   economics?
15          A.   I was the editor of the Review of Economics and

16   Statistics until July of last year.       I did that for eight
17   years and that was enough.
18          Q.   I see from your resume that you are either the
19   author or the editor of 10 books in immigration or wages, is

20   that correct?

21          A.   I don't know the exact count, but I'm the author or
22   editor of several books on immigration, something like that.

23          Q.   And I see you have also authored over 100 scholarly

24   articles in economics, in various fields of economics?
25          A.   That's correct.


 1               MR. KOBACH:    Your Honor, I move that the Court
 2   qualify Dr. Borjas as an expert in the field of economics and

 3   immigration.
 4               THE COURT:    Counsel?
 5               MR. ROSENBERG:    Yes, Your Honor, briefly.   Thank
 6   you.
 7                             CROSS EXAMINATION
 9          Q.   Good morning.    How are you today?
10          A.   Good.

                                   Page 8
11        Q.     I'm Ilan Rosenberg. I'm an attorney for the
12   Plaintiffs in this case.
13               Just to be clear, you live in Boston or Cambridge,
14   is that correct?
15        A.     I live in Lexington.
16        Q.     Massachusetts, correct?

17        A.     Yes.
18        Q.     Massachusetts?
19        A.     Yes.

20        Q.     And you teach economic theory there?
21        A.     Yes.
22        Q.     Now, your resume states that you are on the policy
23   board for the Center for Immigration Studies, is that

24   correct?

25        A.     My vitae states that?


 1        Q.     Yes.

 2        A.     As of now?    That is not correct.   If it states

 3   that, it is incorrect.
 4        Q.     So you are not on the policy board?

 5        A.     I am not.
 6        Q.     And what is the Center for Immigration Studies, if

 7   you know?
 8        A.     It is a think tank in Washington that more or less
 9   does statistical work sort of showing various impacts.
10        Q.     Would it be fair to say that -- I will call it CIS,
11   because otherwise my tongue is going to get twisted -- that
12   CIS advocates restrictive immigration policy?
13        A.     Officially?    I don't know if they do it officially
14   or not.

                                  Page 9
15          Q.   In your personal opinion.
16          A.   In my personal opinion, I would classify -- given
17   there are various think tanks that look at immigration from
18   various sides, I would classify CIS as a group that does
19   pretty good statistical work and that tends to publish
20   material that tend to be critical of current immigration

21   policy.
22          Q.   So in the sense when you mean critical -- when you
23   say critical, meaning that current immigration policy is too

24   lax?
25          A.   Is what?


 1          Q.   Too lax.

 2          A.   No, not necessarily.   By critical, for example, I'm
 3   also critical of it, and what I would say is given some

 4   objective, we can probably do better than what we have.
 5          Q.   What is the National Bureau of Economic Research?

 6          A.   The National Bureau of Economic Research is a

 7   Cambridge, Massachusetts based institute or think tank in
 8   economics that basically brings economists from all over the

 9   world together for various meetings; in the summer, during
10   the year, and they publish a very well known sort of outlet

11   of working papers in economics.        So if one does empirical
12   work in economics, most empirical papers in economics tend to
13   come out of the National Bureau of Economic Research.
14          Q.   So I take it from what you say that publications
15   from the NBER are pretty selective?
16          A.   Well, they don't publish in the usual sense of an
17   academic journal.      What they do is an outlet for working
18   papers before they are published, but they clearly belong to

                                  Page 10
19   a select group of economists, just in the U.S., but also
20   abroad.
21        Q.     It would be fair to say that if the National Bureau
22   publishes one of your papers that it would be fairly highly
23   regarded in the field of economics, correct?
24        A.     Some people might say that.    I, myself, given the

25   fact that I know that the paper I published for the National


 1   Bureau is not a complete paper, I would say it is a good
 2   outlet for basically the paper to seen by a very wide
 3   audience.
 4        Q.     And you have published papers -- they have

 5   published your papers, is that correct?

 6        A.     Whenever -- the usual way in which I put my papers
 7   out into the public is I will write a paper, send it to an

 8   economic journal to get it published.      Once it gets accepted,
 9   I might then -- I usually then submit it to the National

10   Bureau to put it into the working paper series.

11        Q.     Now, the vast majority of your writings, your books
12   and your articles deal with the effect of immigration on
13   wages on a nationwide basis, is that correct?

14        A.     Not the vast majority, but a certain subset of
15   articles in my vitae, yes, they do.

16        Q.     Maybe I can rephrase that.    The vast majority of
17   the articles you have written on immigration and its impact
18   on wages focus on the national perspective, is that correct?
19        A.     I have done work in the local perspective also in
20   the 1980s.
21        Q.     I saw that you wrote a paper regarding the New York
22   Metropolitan area, is that correct?

                                Page 11
23        A.   That's correct.
24        Q.   Off the top of your head, can you recall any other
25   specific market papers?


 1        A.   No.
 2        Q.   And they generally refer to immigration as a whole,
 3   as opposed to distinguishing between legal and illegal

 4   immigration?
 5        A.   I mean, in general, the data we have doesn't
 6   distinguish at all who is legal and who is illegal, so we

 7   cannot really tell the legality of the person that we are
 8   looking at.    I can tell you why it might not matter so much

 9   later.

10        Q.   We will get to that, but essentially the answer
11   would be yes?

12        A.   But it doesn't distinguish for the most part
13   between legal and illegal, even though I try in the text

14   usually to sort of discuss how it would be effected by

15   particular types of loss, yes.
16        Q.   When dealing with this national view, am I correct

17   in my understanding that you somewhat disfavor sort of cross
18   city analyses, as opposed to a national perspective to

19   determine the actual impact of immigration on wages?
20        A.   Well, there has been a few generations of work on
21   the economic impact of immigration and the wage rate.
22             Back in the 1980s when it began, most of the work
23   was done at the city level by comparing different cities.
24   Since then, not just myself, but some people sort of
25   questioned whether that's a good way of proceeding, and I

                                Page 12

 1   sort of tried to develop an alternative which looks at
 2   national wage trends to study the impact, yes.
 3        Q.   So let me -- again, let me see if I get this

 4   correctly.   Your focus is on the impact of immigration on the
 5   market as a whole, on the national market as a whole?

 6        A.   On particular skill groups.
 7        Q.   Yes.   I do understand that.
 8        A.   That's correct.    But I have also looked at the
 9   impact at State level.    I have also looked at the impact at
10   the city level within the same studies.    So it is not

11   exclusively national.
12        Q.   Do any of your writings deal with the economics of

13   Northeastern Pennsylvania?

14        A.   No.
15        Q.   Let me ask you a little bit about some documents

16   that you have reviewed in preparing your report.
17             I did not see a listing of any documents that you

18   reviewed, other than scholarly articles, is that correct?

19        A.   I looked at the ordinance itself.
20             MR. KOBACH:    Your Honor,   I think this is going

21   beyond his qualifications, the documents he looked at in
22   preparing the report.

23             MR. ROSENBERG:    I'm sorry, Your Honor.    I'm trying
24   to get to the relevance of the witness' testimony.      I think
25   I'm entitled to do that.


 1             THE COURT:    I will sustain the objection.    I think
 2   it is beyond his qualifications.
 3             MR. ROSENBERG:     Very good, Your Honor.   Let me
                                 Page 13
 4   change this line.

 6        Q.    Now, the study and finding section in your report
 7   which sets the framework for your analysis, is that correct,

 8   and predates -- that analysis predates this litigation,
 9   correct?

10        A.    Predates what?
11        Q.    The analysis that you describe in your report, when
12   you talk about the models and the general impact of
13   immigration on wages, generally, that analysis -- you
14   prepared that analysis before this litigation existed,

15   meaning that is a reflection of your previous work, is that
16   correct?

17        A.    Yes.

18        Q.    Have you ever been to Hazleton?
19        A.    No.

20        Q.    Do you know what county Hazleton is in?
21        A.    No.

22        Q.    It is Luzerne County.

23              Have you ever reviewed any information on the
24   economy --

25              MR. KOBACH:    Objection.


 1              THE COURT:    I will allow that, these questions.
 3        Q.    Have you ever reviewed any information on the
 4   economy of Hazleton?
 5        A.    I looked at the Hazleton web site to see what it
 6   said about it before I came here.
 7        Q.    How about Luzerne County as a whole?
                               Page 14
 8        A.     No.

 9        Q.     Northeastern Pennsylvania region?
10        A.     No.
11        Q.     Pennsylvania as a State?

12        A.     No.
13        Q.     Have you ever studied the employment market in

14   Hazleton?
15        A.     Which?
16        Q.     The employment market in Hazleton.
17        A.     No.   Beyond what it said in the web site, no.
18        Q.     So you personally have not conducted any studies on

19   the market in Hazleton, is that correct?
20        A.     I was not asked to.

21        Q.     And Luzerne County?

22        A.     No.
23        Q.     Northeastern Pennsylvania?

24        A.     No.
25        Q.     Pennsylvania as a State?


 1        A.     No.
 2        Q.     Are you aware of the existence of any such studies?

 3        A.     None in the academic literature, no.
 4        Q.     So did you do anything to try to determine whether
 5   any such studies exist?
 6        A.     I might have Googled when I was first asked to do
 7   this, but I couldn't recall for sure, but I know that in the
 8   academic literature, there is no such thing as the study of
 9   the economic impact of immigration in Pennsylvania or in
10   Hazleton.
11        Q.     Are you aware the recent influx of immigrants to
                                Page 15
12   Hazleton come from a variety of countries?

13        A.   No.
14        Q.   Did you make any attempt to isolate then the
15   different groups of immigrants by country of origin or skills

16   in Hazleton?
17        A.   In terms of doing what?

18        Q.   In terms of preparing your report.
19        A.   No, because -- well.    Let me step back a second.
20        Q.   We will get to some more.
21             MR. KOBACH:    He's trying to answer the question.
22             MR. ROSENBERG:    I asked a yes or no question.

23             THE COURT:    He can certainly explain.
24             MR. ROSENBERG:    I'm sorry.   Go head.   I'm sorry.

25             THE COURT:    Doctor, you can explain.


 1             THE WITNESS:    When you want to study the labor
 2   market impact of immigration, the country where people come

 3   from does not really matter all that much even in the more

 4   general context, because what really matters is increase in
 5   supply, and a worker is a worker.      The skills that they bring
 6   are the skills they bring in, regardless of where they come

 7   from.
 9        Q.   That would be the same for legal permanent
10   residents, it would be the same for work authorizations, it
11   would be the same for unauthorized workers?
12        A.   It might be different to the extent, for example,
13   that suppose unauthorized workers tend to be the kind of
14   worker that cannot -- that employers have easier to exploit
15   in some sense.   Then an additional unauthorized worker might
                               Page 16
16   actually put even more depression in the labor market.

17        Q.   No, you're not aware of what the conditions are in
18   Hazleton, in terms of the employment of undocumented workers?
19        A.   You mean, how many there are?

20        Q.   Correct.
21        A.   I have seen a study by Steve Camarota actually that

22   has some numbers.    That is all I know.
23        Q.   But you don't recall what those numbers are?
24        A.   Not off the top of my head.
25        Q.   Now, let me just be clear on some of the issues


 1   that you're here to testify about.

 2             Now, you're not here to offer opinions about, for
 3   instance, how many immigrants currently are in Hazleton?

 4        A.   No.

 5        Q.   How many immigrants work in Hazleton?
 6        A.   No.

 7        Q.   You're not here to tell us about how many

 8   immigrants would lose their jobs if the ordinance at issue in
 9   this litigation were to go into effect?

10             MR. KOBACH:   Your Honor, I believe that we have
11   stated expressly that the job impact of the ordinance is
12   something he's here to testify to.
13             MR. ROSENBERG:   All right.
15        Q.   You're not here to offer an opinion about the
16   actual impact on businesses who would be obligated to comply
17   with these ordinances if they were to go into effect?
18             MR. KOBACH:   Same objection.    The job impact is the
19   impact on businesses.
                                Page 17
20               MR. ROSENBERG:    I'm sorry.   I didn't ask about the

21   job impact.    I asked about the effect on businesses if these
22   ordinances were to go into effect.
23               MR. KOBACH:    Businesses need people to fill the

24   jobs.
25               MR. ROSENBERG:    That is a debate we can have at


 1   another time.
 2               THE COURT:    Mr. Rosenberg, just be careful.   You're
 3   right on the edge of this that you're into.      This is an
 4   examination of his expertise and whether or not I will accept

 5   him as being qualified.      If you can limit yourself to that.

 6               MR. ROSENBERG:    I will do that, Your Honor.

 8        Q.     Now, the initial premise of your report focuses on

 9   immigrants in general and their impact, not on legal versus
10   illegal, is that correct; the initial premise, the initial

11   analysis?

12        A.     I believe there is a paragraph in the report that
13   says, and this is what would happen if it was mostly

14   unauthorized, or something like that.
15        Q.     If this were mostly unauthorized?
16        A.     I believe after I described the results, there is a
17   paragraph where I discuss why the presence of unauthorized
18   immigrants would effect the analysis.
19        Q.     Right.   In the initial portion, when you tell us
20   about the models and the general impact of immigration on the
21   work force and the impact on wages, you conclude basically
22   that the distinction between legal and illegal immigrants is
23   somewhat inconsequential, because it is the increase in the
                              Page 18
24   work force and you just told me --

25              MR. KOBACH:    Objection.    I think he's getting


 1   into --

 2              THE COURT:    Sustain the objection.
 3              Please, Mr. Rosenberg, confine yourself to the
 4   proper examination.

 6        Q.    Have you been able to determine the number of
 7   unauthorized workers in Hazleton?
 8        A.    I did not do an analysis.

 9        Q.    And were you for the purposes of -- let me skip to

10   something else.
11              You are aware that this case is not about national

12   immigration policy, right?

13        A.    I'm aware that this case was about an ordinance in
14   Hazleton and that is all it is about.

15        Q.    So this is not about the impact on wages of

16   workers?
17              THE COURT:    You're going beyond the scope of the

18   proper examination.
19              MR. ROSENBERG:    Let me conclude with a couple more

20   questions.
22        Q.    You didn't attempt to determine whether there were
23   any Hazleton-specific factors that could create an exception
24   to the general rules that you set out in your analysis?
25        A.    I did not analyze any Hazleton-specific data before


                                 Page 19

 1   I came here.
 2        Q.    And you did not do any study specific to Hazleton's
 3   economy or the wage base in Hazleton, is that correct?
 4        A.    That's correct.
 5              THE COURT:   These questions have been asked and

 6   answered before.
 7              THE COURT:   Anything further?    Do you have anything
 8   further?

 9              MR. ROSENBERG:    Just that the Plaintiffs would
10   object to the proffer of Professor Borjas as an expert on the
11   grounds that basically his opinion is not going to be
12   relevant to the issues at hand in this litigation.

13              The City Council debates in this case or relating

14   to the ordinances and the ordinances themselves make no
15   reference whatsoever to wages.

16              The report focuses on national wage trends

17   generally and how they would translate into Hazleton without
18   looking into any Hazleton specific facts.      The report does

19   not address the number of unskilled workers in Hazleton.         It

20   doesn't address the local need for the kind of work that Dr.
21   Borjas references in his report.       It has no factual basis

22   into previous or current wage situations in Hazleton.
23              While indeed it makes a very interesting point

24   about the possibility of some modest impact or impact on the
25   wages of the lowest echelon of employees, meaning the lowest


 1   skilled employees in Hazleton, it's essentially and
 2   admittedly conjectural pursuant to the report.
 3              Professor Borjas is not an expert, as he said, in

                                  Page 20
 4   economics of Hazleton, of Luzerne County, of Northeastern
 5   Pennsylvania or Pennsylvania generally.   He's not reviewed
 6   any of the facts in this case particularly as they refer to
 7   Hazleton, and as such the proposed testimony fails to meet
 8   the evidentiary standard necessary for him to be qualified as
 9   an expert in this case.

10             MR. KOBACH:    Your Honor, I would simply respond
11   that it's the nature of economics to use national economic
12   models and then apply those conclusions to narrower

13   circumstances like a city.
14             His testimony goes directly to the questions that
15   the City is asking as to whether this is in the best interest
16   of the welfare of the residents of Hazleton to in any way

17   penalize employers who employ unauthorized aliens, and that

18   is precisely what the lifetime body of work Dr. Borjas has
19   done.

20             So it is relevant to their concern about the

21   economic welfare of the residents of Hazleton and his methods
22   are typical for economics.

23             THE COURT:    We will overrule the objection, and we

24   will accept the doctor as an expert.
25                    FURTHER DIRECT EXAMINATION


 2        Q.   Dr. Borjas, just very briefly, could you identify
 3   for the record your curriculum vitae, which is in that fourth
 4   folder -- I'm sorry -- the fifth white folder, and it is
 5   Document Tab 170.
 6             Can you confirm, please, is that your CV?
 7        A.   Yes, it is.

                                Page 21
 8        Q.   While you're there, can you look at the next
 9   document, D-171?
10        A.   Okay.
11        Q.   Is that the report that you prepared prior to this
12   testimony?
13        A.   Yes, it is.

14        Q.   Thank you.    When we were talking about your
15   qualifications and some of the cross examination questions
16   about your research, the discussion went to the use of

17   national models to draw conclusions for local circumstances.
18             Is that typical in economics to do that?
19        A.   Well, it is, and it is sort of interesting in this
20   context, because the way the literature began in the academic

21   setting regarding national economic impact of immigration, it

22   began at the local level.
23             The way it began basically was the following:      A

24   lot of economists -- some economists try to correlate, try to

25   find an association between how many immigrants were in a


 1   particular town and what the wages of the town was, and by

 2   comparing towns, they imagined that one perhaps can then tell
 3   what the impact of immigration was.

 4             The problem with that analysis, it sort of dawned
 5   on people over time, was that each town really wasn't a
 6   little island in and of itself.       The fact is that towns were
 7   connected.
 8             For example, if immigrants were to go into a
 9   particular town and have a bad impact they are seeing in
10   terms of wages, then people from that town might move out,
11   and thereby diffuse the impact away from that town to other

                                 Page 22
12   parts of the country or employers in some other town might
13   say, well, in this one town where immigrants came in, the
14   wage is somewhat lower, and therefore, I can make higher
15   profits by moving there.
16              So you have all these flows that tend to correlate
17   the labor market, because of those related sort of issues,

18   there has been some work in which instead of looking at the
19   economic impact at the town level, some people began to look
20   at it at a broader level, either the state or the national

21   level.    It is at that level that my findings tend to be quite
22   indicative of adversing the impact of wages.
23        Q.    Would you say that such findings, using national
24   economic data, can be meaningful when applied to local or

25   state circumstances?


 1        A.    Yes.
 2        Q.    What are the primary sources you use when you do

 3   this research?

 4        A.    Excuse me?
 5        Q.    What are the primary sources you use when you do

 6   this research on the wage impact of immigration both legal
 7   and illegal?

 8        A.    Basically I use census date, publically available
 9   data.    In my most recent sort of strand of work, I tend to
10   look at census data and the wage evolution of particular
11   skill groups over a 40-year period since 1960.
12        Q.    Could you summarize your overall conclusion about
13   the impact for the first part, say, immigration, the impact
14   of immigration on wages?
15        A.    Okay.   If one were to take the census data I just

                                Page 23
16   described and look at the wage trends for particular skilled
17   groups of workers -- for example, let's look at the wage of
18   high school dropouts who are around 30 years old, and sort of
19   look at that trend over a 40-year period.   We know that for
20   that particular skill group, immigrants came in at particular
21   points in time.

22             Well, you can then decipher how those wage trends
23   are affected by immigration and compare the skilled groups.
24   When you do that kind of analysis what you tend to find is

25   that in the U.S. for the last 40 years, for every -- when


 1   immigrants come into the market place an increase number of

 2   workers in a skilled group by 10 percent, the wage of that

 3   group tends to go down by 3 or 4 percent.   That is sort of
 4   the fact that comes out of my research.

 5        Q.   Do you have a more specific conclusion for
 6   unskilled workers; is the effect different?

 7        A.   In the papers that I have done on this, if you want

 8   to look at -- if you want look at particular skilled groups
 9   in terms of, say, low educated workers versus highly educated

10   workers, which I have done, you also tend to build in a model
11   trying to decipher how it is that when immigrants in one

12   skilled group come in, they will affect the wage not only of
13   that skilled group, but other people as well.
14             For example, low skilled immigrants might come into
15   the marketplace and clearly affect the wage of low skilled
16   workers, but it will also tend to affect the wage of high
17   skilled workers, because they can concentrate doing something
18   else.
19             Once you take all of that into account, in the

                              Page 24
20   report I actually have a little table describing when all of
21   these feedback effects take place what is the impact on low
22   skilled workers and high skilled workers, and the report, in
23   the table that I present, I recall that the number is
24   something like for 1980-2000 period; in other words, let's
25   take the immigrant influx that came in, in that two-decade


 1   period, between 1980 and 2000, and let's look at the impact

 2   of that 20-year influx on the wage of the pre-existing work
 3   force.    By pre-existing, I mean everybody who was in country
 4   in 1980.   So it means both native born workers and foreign
 5   born workers.

 6              Well, that 20-year influx, because it is so

 7   largely -- because the number of low skilled workers is
 8   predominant in that influx, that tends to depress the low

 9   skilled workers the most, and that is what where the 8
10   percent workers come in.

11              So the 20-year influx of 1980 through 2000

12   immigrants lowered the wage of the pre-existing stock of low
13   skilled workers in the U.S. by something like 8 percent.
14        Q.    So you identify the 8 percent number as the

15   decrease in wages for low skilled workers.   Now, --
16        A.    In the short run.

17        Q.    In that study, you combined legal and illegal
18   workers.   Now, are the numbers for illegal workers likely to
19   be even higher than 8 percent or lower?   Can you explain how
20   you split up the two groups?
21        A.    In the study, like in most studies that are done,
22   you have to mix, you have to sort of define an immigrant as a
23   person who is foreign born.

                                Page 25
24                The census data that we tend to use does not
25   contain any information whatsoever on who is legal and who is


 1   not.   So we're basically looking at the impact of more bodies
 2   in the labor market, regardless of whether they are legal or

 3   not.
 4                It may well be that many of those bodies are not
 5   legal.      They are unauthorized workers.   To the extent that is
 6   true, if these unauthorized workers are coming to the legal
 7   market and trying to provide labor at a cheaper wage than

 8   they would had they been authorized workers, then in a sense,
 9   the unauthorized workers are providing even more wage

10   depression to the labor market.

11                So to the extent that the group will be more
12   illegal than legal, you would expect the wage depression to

13   even be greater, because the unauthorized workers tend to
14   have to less power with employers in determining the wage.

15          Q.    Let me make sure I'm stating this correctly.

16                So for the unauthorized workers, their wage impact
17   is likely to be greater than 8 percent, and that is mitigated

18   by the authorized workers which brings it to an average of
19   about 8?

20          A.    I would phrase it a little differently in the
21   following sense:     The 8 percent is total impact.    If the
22   influx had been solely unauthorized, then the impact would
23   have been greater than if the influx had be solely authorized
24   workers.
25          Q.    Is it a common finding in your research that


                                  Page 26
 1   illegal aliens or unauthorized workers are typically high

 2   school dropouts or have not completed high school?
 3        A.     In studying my research, but it is well known in
 4   the literature that many, many -- that the bulk of illegal

 5   immigrants tend to be low skilled in terms high school
 6   dropouts.

 7        Q.     The majority?
 8        A.     Probably.
 9        Q.     Are unauthorized aliens particularly or more
10   likely, I should say, to accept lower wages as compared to
11   U.S. citizens or authorized aliens?

12        A.     There's actually a debate over that in the
13   literature.    A lot of people say that.   You certainly see

14   that a lot in the press accounts of legal immigration and

15   illegal immigration, and there is some studies that actually
16   find out.

17               There is also studies that tend to find that if one
18   were to look at the wage of immigrants and see whether the

19   wage of legal immigrants is different than the wage of

20   illegal immigrants, once you adjust for educational
21   attainment or how long they have been in the U.S., or whether

22   they speak English or not, a lot of the gap disappears.
23               So it really is quite not well known if illegal

24   immigrants really earn that much less than equally skilled
25   legal immigrants.


 1        Q.     If you hold education --
 2        A.     If you hold education constant and language.
 3        Q.     You have described these findings about the
 4   downward wage pressure imposed by legal and illegal, but even
                              Page 27
 5   greater for illegal immigrants.    Do those findings apply in

 6   the Hazleton, Pennsylvania context?
 7          A.   The findings would apply in the context of Hazleton
 8   in the following sense:    Suppose that immigrants come into

 9   Hazleton and they are legal or illegal, that would tend to
10   basically in the short run, it would tend to increase the

11   number of workers available in the labor market.
12               So the law of supply and demand would clearly tell
13   you that the bigger supply, you would expect to find some
14   kind of wage depression initially.      Now, over time, that wage
15   depression might be attenuated in many different ways.

16               For example, suppose that a lot of illegal
17   immigrants come into Hazleton and do lower the wage in the

18   short run, as one would expect this in the common sense of

19   supply and demand framework.    Well, that creates a lot of
20   different incentives for a lot of people.

21               In particular, employers outside Hazleton will see,
22   wow, there is a lot of illegal immigrants in Hazleton that

23   tend to depress the wage, and if I were to move there, I

24   would be able to take advantage of that and, therefore, try
25   to -- I should move my jobs there, and that would tend to


 1   sort of attenuate a little bit of impact, because there would
 2   be more jobs available.
 3               At the same time, people working in Hazleton will
 4   say the wage is very low here now, because of all these
 5   illegal immigrants coming in, and it may well be worth moving
 6   out.
 7               So a lot of the impact in the Hazleton context will
 8   depend not just in the dynamic sense of it takes time for all
                              Page 28
 9   these things to occur, but also in the fact that a lot of the

10   impact may well be so localized that it might not be very
11   easy to make this movement.
12               For example, suppose that a lot of the illegal

13   immigrants in Hazleton work in construction.    Well, you know,
14   you cannot just say, if you're a builder in San Diego, saying

15   should I move to Hazleton to construct homes.   In San Diego,
16   you cannot really do that, because construction is very
17   localized.    You basically have to be where the jobs are and
18   the construction are.
19               It may well be true that low skilled workers don't

20   have the ability to move across town all that easily to take
21   advantage of the very different economic incentives provided

22   by illegal immigration.

23        Q.     Tell me if I'm summarizing correctly then.   So you
24   say that the wage impact occurs initially in the so-called

25   short term and then it is attenuated over time with labor


 1   mobility and company mobility?
 2        A.     Correct.
 3        Q.     And the way I use short term, I probably think of

 4   it in terms of days, but just to get clear, could the short
 5   term in economic models that you're describing be as long as
 6   10 years?
 7        A.     It could easily be in 5 to 10-year range.    We know
 8   from census date, which is 10 years apart, that we tend to
 9   see an impact in terms of the wage evolution of particular
10   skilled groups.
11               So, unfortunately, the literature is not really
12   very well detailed on how long it takes for these adjustments
                              Page 29
13   to take place, and particularly when the immigrants are in

14   industries that are not easily tradable, it may well be that
15   the long run takes much longer, because construction, for
16   example, or household services, those things really cannot be

17   traded across towns all that easily.
18        Q.   So if attenuation takes longer, does that mean that

19   wages will stay down?
20        A.   Will stay down a longer period, correct.
21        Q.   Can you explain which industries are likely to see
22   longer -- in which industries will this attenuation, this
23   attenuation of the wage depressing effect take place?

24             MR. ROSENBERG:    Objection, beyond the scope of the
25   report.   There was no analysis of specific industries.


 1             MR. KOBACH:    Your Honor, he talks about wage

 2   attenuation in report.    I'm asking for an example of an
 3   industry that does that, an industry where wage attenuation

 4   occurs quickly.

 5             THE COURT:    Can I see you at sidebar?
 6             (At this time, there was a discussion held off the
 7             record at sidebar.)

 8             (At this time, the discussion held at sidebar
 9             concluded.)
10             MR. KOBACH:    Professor Borjas, you and I have the
11   same problem.   We speak a little bit too quickly.   For the
12   benefit of the court reporter, we speak a lot too quickly.
13             THE COURT:    What happens is, she's trying to take
14   everything down.   If we can slow it down a little bit,
15   especially with this technical testimony.
16             MR. KOBACH:    So if you can tell me if I'm speaking
                                Page 30
17   too quickly and I will tell you.

18              THE WITNESS:   Thank you.
19              THE COURT:   And I can tell both of you and so can
20   Suzanne.

22        Q.    Professor Borjas, the question was, can you give

23   any examples of companies or industries that would see this
24   wage depressing effect take a long time to correct?
25        A.    The economic theory tells you that the easier it is


 1   for these jobs to be created across towns or across markets,
 2   the easier it would be for the short run to more easily

 3   become the long run in some sense.
 4              Now, industries that don't quite qualify in terms

 5   of that ease will be things like construction, for example,

 6   where it would very difficult for someone from outside
 7   Hazleton to take advantage of the pool of low skilled workers

 8   in Hazleton to build houses someplace else.    So that would

 9   tend to sort of delay the attenuation of the short run impact
10   over time.

11              Things like household services, the fact of the
12   matter is that jobs that household services provide must be
13   provided in Hazleton, and people cannot -- you know, you
14   cannot provide -- you cannot take advantage of say -- let me
15   give an example.
16              Suppose that you are a person running a firm that
17   provides maid services to people in New York City.    There are
18   a lot of low skilled immigrants, say, unauthorized low
19   skilled immigrants in Hazleton.    You cannot take advantage of
20   that low skilled work force out in New York City by sort of
                              Page 31
21   going to Hazleton, hiring those low skilled workers and

22   moving them out, because it will just be basically moving
23   them out of the market.
24               So those kind of jobs are not easily tradable

25   across towns, and that would tend to delay the attenuation of


 1   the wage impact.

 2        Q.     So if Hazleton's sizeable alien population matches
 3   national patterns in the workplace, and if Hazleton's alien
 4   population matches national patterns with about one-third
 5   being illegal, are those wage impacts you described --

 6               MR. ROSENBERG:   Objection.   There is no foundation

 7   for this, as far as we know.
 8               THE COURT:   Overrule the objection.


10        Q.     If those national patterns are consistent in
11   Hazleton, are the wage impacts you described happening in

12   Hazleton?

13        A.     In the short run, yes, they would.
14        Q.     And what will happen if the Hazleton ordinance is

15   successful in encouraging employers to refrain from hiring
16   unauthorized workers?
17        A.     The demand for unauthorized workers would drop and
18   that would tend to, in the short run again, that would tend
19   to increase the wage, because a pool of workers, the pool of
20   workers would basically be contracted, because unauthorized
21   workers would no longer be part of the work force.
22               That means there would be more competition, more
23   bidding up for the remaining workers who are authorized, and
24   that would in the short run increase the way for the effected
                              Page 32
25   group of skilled workers in Hazleton.


 1        Q.   Again, to clarify, when you use the term in the
 2   short run, that could be five to 10 years?

 3        A.   I do not mean a day.    I mean as long as these
 4   effects take place before all the mobility and all the flows
 5   attenuate the impact.

 6        Q.   And in that situation, would U.S. workers see their
 7   wages go up in most situations?
 8        A.   Yes.
 9        Q.   How certain are you that wages will rise in that

10   situation?

11        A.   Economic theory and my data and my analysis tend to
12   show that indeed wages would rise.    In fact, in the last few

13   months, with all the raids that have been going on recently

14   for illegal immigrants in the U.S., there are actually
15   specific examples where such a pattern is easily seen in the

16   data.

17        Q.   Can you give an example?
18        A.   Yeah.   There was an article in The Wall Street

19   Journal in December about what happened at Crider, which is a
20   poultry plant in Georgia, after there was a big raid by the

21   enforcement officials regarding illegal immigration.
22             It turns out that something like three-quarters of
23   Crider's work force was unauthorized.    They were caught by
24   the border officials and Crider immediately raised wages and
25   advertised in the local paper the fact that there were higher


                               Page 33
 1   wages available for the entry jobs that they now had
 2   available.
 3        Q.   In this Crider example, how much did they raise
 4   wages when the illegal laborers were taken out of the work
 5   pool?
 6        A.   In the Crider example from the numbers that I have

 7   given in The Wall Street Journal article, in the Crider
 8   example, the supply of workers due to the raid was basically
 9   cut by 75 percent, and that raised the wage by something like

10   14 to 20 percent.
11        Q.   14 to 20 percent?
12        A.   14 percent to a little more.
13        Q.   Did that example confirm your model that you used

14   in predicting how many wages will go up or down?

15        A.   The direction is clearly the same.   The fact of the
16   matter is what economic theory says, what my data say, what

17   happened at Crider, it is a very consistent, sort of common

18   sense application of the law of supply and demand.
19             The more workers that are in the marketplace, the

20   more wage pressures there are.   If for some reason workers

21   are taken out, like they were at Crider by the enforcement
22   officials, then the wage should rise.

23        Q.   Given the demonstrative effects of wages, would it
24   surprise you to learn that the U.S. Chamber of Commerce has

25   filed a brief against the City of Hazleton?


 1        A.   To the extent that the U.S. Chamber of Commerce is
 2   a lobbying group for employers, it doesn't surprise me.
 3   Employers are profit maximizers, and they clearly would want
 4   to pursue policies that lead to lower wages.

                              Page 34
 5        Q.     You mentioned also that you are an expert in the
 6   Tyson v. Trollinger case.     Is that correct that in this case
 7   you are doing a very micro study of a particular business'
 8   labor market?
 9        A.     In the Tyson case, we have actually gotten data,
10   administrative data from Tyson employees in terms of the wage

11   over a period of a few years.     So we can actually try to see
12   how Tyson's wage structure varied according to the number of
13   immigrants that came into the marketplace, but the study is

14   still ongoing, so I don't really have official numbers to
15   give.
16        Q.     Can you give a general direction of what happened
17   in Tyson when illegal labor came in to the meatpacking

18   marketplace?

19        A.     The same as what happened at Crider.   The fact of
20   the matter is that when the supply of immigrants came in, the

21   supply of unauthorized workers increased, the wage in the

22   plant was lowered.
23        Q.     Do you think those findings can then be broadened

24   to a community of 30,000 like Hazleton, and can we assume the

25   same patterns would apply?


 1        A.     Yes.
 2        Q.     The City of Hazleton has seen an increase in
 3   population of as much as 50 percent in the last seven years,
 4   but no increase in total amount of taxable earned income in
 5   the City.
 6               What does that suggest to you about the
 7   marketplace?
 8               MR. ROSENBERG:   Object, Your Honor.

                                  Page 35
 9              THE COURT:   What is the objection?
10              MR. ROSENBERG:   There is absolutely no opinion on
11   the earned income tax or taxes at all, in fact, in the
12   opinion.
13              THE COURT:   In the report?
14              MR. ROSENBERG:   In the report.

15              THE COURT:   Sustain the objection.   Beyond the
16   scope of the report.

18        Q.    Just to summarize then, is it correct that you
19   think that the impact of unauthorized aliens in Hazleton is 8
20   percent or greater in pushing down wages?
21        A.    I am certain that the direction of the impact is

22   that the presence of unauthorized workers has depressed the

23   wage in Hazleton in the short run and probably over a
24   few-year period beyond that.

25              The exact number depends on all kinds of, you know,


 1   Hazleton-specific factors; the industry mix, occupational mix
 2   and so on that I really haven't analyzed.    So I would not

 3   apply the 8 percent number so much as the direction.    The
 4   direction is clearly there.    The number itself can vary.

 5        Q.    Conversely, if the Hazleton ordinance goes into
 6   affect and it achieves its desired goal of discouraging
 7   employers from continuing to employ unauthorized aliens, will
 8   the effect of increasing wages occur quickly?
 9        A.    One great example for saying that is what happened
10   at Crider.   In that case it happened almost immediately.     The
11   fact is that employers have to fill the jobs available, and
12   the way that you fill jobs available when it is short of

                                 Page 36
13   workers is to bid up the price of labor.
14        Q.     Is it also correct that in that situation,
15   employers will tend to look for legal workers and U.S.
16   citizens?
17        A.     Well, particularly if the ordinance says that you
18   cannot hire illegal immigrants, and that you have to go

19   through the Basic Pilot Program.
20               MR. KOBACH:    Thank you very much.
21               THE COURT:    Cross-examine.

22                       FURTHER CROSS EXAMINATION
24        Q.     Dr. Borjas, a couple questions of what counsel
25   asked you about Crider.


 1               Are you aware of any major -- now, Crider was the

 2   primary employer in the area where the raid took place, is
 3   that correct?

 4        A.     I think so, but I'm not entirely sure.

 5        Q.     It was a predominant employer, and losing
 6   three-quarters of your work force presents urgency situations

 7   that are unusual in the market, is that correct?
 8        A.     Three-quarters drop in the number of workers
 9   available clearly is not trivial.
10        Q.     So that is an unusual factor and that is an unusual

11   circumstance, correct?
12               If you lose three-quarters of your work force, you
13   need to replace that.
14        A.     I could also cite the case of Swift, which also was
15   in the news recently, and in the Swift case the numbers
16   involved weren't quite as large, and I don't quite know that

                                  Page 37
17   the news reports don't tell you all that much as to how much
18   the wage rose, but, again, all the news reports indicate that
19   when Swift went through all the enforcement related raids,
20   they did raise wages to attract more workers.
21        Q.    And it was indispensable to raise wages at that
22   time.   It wasn't just an economic trend.   It was a factual

23   necessity at that point for these companies to raise wages?
24        A.    The loss of supply and demand.
25        Q.    Thank you.


 1              Now, counsel also asked you a couple of things
 2   about the short-term impact of immigration on Hazleton.

 3              Again, your general studies of trends immigration

 4   have focused both on authorized and unauthorized immigration,
 5   correct?

 6        A.    Correct.
 7        Q.    So your 8 percent number focuses on authorized and

 8   unauthorized without distinction?

 9        A.    Correct.
10              THE COURT:   Mr. Rosenberg, slow it down.   The
11   witness will respond fast or slow depending on your tempo.

12   Thank you.
13              MR. ROSENBERG:   Yes, Your Honor.   I'm sorry.

15        Q.    You mentioned the short-term impact will depend on
16   the ability of the market to absorb these new immigrants, is
17   that correct?
18        A.    That is not quite what I mean by the short term.
19   The short term, the way economists define it in all the usual
20   models and empirical exercises that are involved in its

                                 Page 38
21   literature is the following kind of experiment:
22             Let's take a town or take a market where all of a
23   sudden you drop 10,000 people say.    What happens before
24   anything else changes?    Now, over time -- and that is what I
25   mean by the short run.


 1             Over time, we know that that is not the end of the
 2   story, because the 10,000 people coming in create all kinds
 3   of new economic incentives.   You know, the wage is lower in
 4   the short run.    That means that employers want to take

 5   advantage of that, so they move into the town, the jobs move
 6   into the town and people who were affected by it negatively

 7   will move out.    So that tends to sort of attenuate the impact

 8   in the long run.
 9             By the long run, it is sort of the alternative to

10   the short run in technical terms.    In the short run, we mean
11   nothing has changed.   In the long run, we mean everything

12   that could change and could possibly change has changed.

13        Q.   Let me make sure that I understand this.    Your
14   definition of the short run is essentially, as you put it,

15   all of sudden 10,000 people fall on the town when the town is
16   unprepared for it, correct?

17        A.   That's right.
18        Q.   So if the town actually has, or the area or the
19   region actually has available employment for this kind of
20   skilled workers, the impact will necessarily be less, is that
21   correct, if there is a market need for that kind of low
22   skilled worker?
23        A.   If there was a market need for that kind of low
24   skilled worker prior to immigrants landing, you would then

                                Page 39
25   have seen the wage going up in those jobs.   Whether that is


 1   true in this context, I don't know.
 2        Q.   Now, let me ask you a couple of questions about
 3   your position on immigration, and we will move a little bit

 4   more into your report.
 5             Have you ever advocated for more restrictive
 6   immigration policies with respect to specific countries?
 7        A.   Say that again.
 8        Q.   Have you ever advocated or held a position that

 9   more restrictive immigration policies should be imposed to
10   specific countries?

11        A.   To which country?

12        Q.   Let's say Mexico.
13        A.   In my book Heaven's Door what I advocate is the

14   following:   I say if one wanted to increase the economic
15   gains to immigration in the U.S., and the big word here is

16   if, so I said in the book, I make an argument which is the

17   following, if what one cares about in terms of immigration
18   policy is to maximize the economic well-being of the current

19   population in the U.S., then what we want to do is shift
20   immigration policy to admit more skilled workers.

21        Q.   And you also acknowledge that there are other
22   important policy considerations, even dating back to the very
23   foundation of this country to admitting immigrants?
24        A.   And I make that point in the book very clearly that
25   that doesn't have to be the only policy goal and, in fact,


 1   shouldn't be the only policy goal.
                              Page 40
 2          Q.   Now, would you, for example -- and based upon your

 3   purely economic assumption, would you give preference to a
 4   certain type of immigrant, meaning a certain place of origin
 5   and a certain degree of education over others?

 6          A.   Not in terms of origin, but in terms of education,
 7   yes.

 8          Q.   So if, for instance, there is just statistically a
 9   greater number of highly educated and technologically savvy
10   perspective immigrants from India or China versus lesser
11   skilled immigrants from Mexico, further south in Latin
12   America, your view is we certainly should open the doors to

13   one over the other, correct?
14          A.   My view is if the goal of the U.S. immigration

15   policy is to maximize economic gains through the current

16   population, the country will be better off by admitting the
17   more skilled worker, regardless of where they came from.

18               THE COURT:   That is our policy today?
19               THE WITNESS:   That is not our policy today.

20               Our policy today is one in which -- legal

21   immigration policy is one in which for most legal
22   immigrants -- about the only way to get into the country, and

23   I'm exaggerating a little bit, not much, is by having family
24   already living in the country.     It is all family connections

25   that basically grant entry visas.        The number of legal visas


 1   allocated to skilled workers is very tiny as a fraction of
 2   the whole policy.
 3               THE COURT:   Isn't there a factor about -- I'm
 4   talking about legal immigrants that goes to skilled workers
 5   and education also?
                                 Page 41
 6              THE WITNESS:   In the scheme of things?

 7              THE COURT:   Yes.
 8              THE WITNESS:   The number of skilled visas is very
 9   small.

10              THE COURT:   How about education?
11              THE WITNESS:   I wish I could say the exact number,

12   but it is less than a third for employment visas.
13              I mean, basically these are rough numbers off the
14   top of my head, but roughly speaking, something like maybe 50
15   to 60 percent of the visas for legal immigrants are all
16   family based.    About 10 percent of refugees, another percent

17   or even -- about 5 percent or so are the visa lottery that we
18   have, we randomly give visas to people who apply and win the

19   lottery, and then the remainder are for employment based

20   visas.    The employment based visas apply not only to the
21   persons actually qualifying for a job, but to the family.

22              So if you start taking all of that into account,
23   the number of people actually granted visas because they are

24   high skilled is not that big.

25              THE COURT:   Thank you, Doctor.


 2        Q.    Now, people who have lower degrees of education,
 3   what we would called lesser skilled individuals, and let's
 4   talk about immigrants specifically, they also serve an
 5   important purpose in our economy, is that not correct?
 6        A.    Have I said that they don't?
 7        Q.    No.   I'm just asking for a yes or no.    Far be it
 8   for me to make up your theory.
 9              They do all sorts of work.   They do housework.
                               Page 42
10   They do construction work.   They do gardening.    They do

11   manufacturing work.   So they certainly do serve an important
12   social and economic purpose as well.
13        A.   They fill jobs, like you and I fill jobs.

14        Q.   Many times they do a lot of these jobs because
15   American employers are willing to take advantage of the lower

16   wages they command, is that correct?
17        A.   That came up before whether illegal immigrants are,
18   in fact, taken advantage of in some sense.    That is not so
19   clear in terms of the literature, but it is often claimed
20   that that is true.

21        Q.   So essentially we could be talking about immigrants
22   irrespective, because the difference in wages that are being

23   commanded are really not consequential, or there is no way to

24   determine that they are consequential?
25        A.   Between legal and illegal?


 1        Q.   Correct.

 2        A.   There is a disagreement over that.     Some studies
 3   claim that there is a difference.     Some studies that I have
 4   seen claim that there is no difference.    I never myself

 5   really worked on that in the last few years.     I don't really
 6   know what the data looks like.
 7        Q.   Now, there is a significant decrease within the
 8   native population of individuals who fall under this lesser
 9   skilled category, is there not?   Fewer and fewer Americans
10   are high school dropouts?
11        A.   That is correct.
12        Q.   But the demand for jobs that will be filled by high
13   school dropouts is increasing in that sense?
                              Page 43
14        A.   That is actually not so clear.   If we know anything

15   about the labor market in the U.S., nationally over the last
16   20, 30 years, there has been a huge increase in the income
17   equality in the U.S.

18             In other words, the wage gap between skilled
19   workers and unskilled workers has really grown to historic

20   proportions.   Any economist will see that data.   In fact,
21   many economists have seen that data and the argument is
22   actually the opposite of what you said, which it tends to
23   indicate that the U.S. economy is shifting in a way
24   structurally that is demanding more and more skilled workers

25   and thereby pushing the wage of skilled workers even more


 1   further up.

 2        Q.   That doesn't mean that there has been a

 3   disappearance of any need for unskilled workers?
 4        A.   Of course not.

 5        Q.   Now, you say that immigration from 1980 to 2000 had

 6   an overall impact of lowering wages, but particularly for
 7   high school dropouts, right?

 8        A.   Correct.
 9        Q.   So the trend among the native population is also

10   diminishing in that sense to the extent that the population,
11   that the native population is basically eradicating this
12   group of less skilled workers?
13        A.   Let me answer in two ways.   Number one, that
14   exercise you referred to, and I was very careful to say that
15   in the courtroom today, treats everybody who was in the
16   country in 1980 as a pre-existing native, regardless of where
17   they were born.   So the impact is not just on natives, but
                               Page 44
18   also on pre-existing immigrants.

19             Number two, I don't know what the exact number is
20   right now, but even today, it is something like 8 or 9
21   percent of high school dropouts in the U.S. are native born.

22   So 8 or 9 percent of 120 million people is not a trivial
23   number.

24        Q.   But they're certainly not the majority either?
25        A.   What?


 1        Q.   They certainly are not the majority either?
 2        A.   No.
 3        Q.   Now, you would agree with me that you are pretty

 4   much the leading proponent or standard bearer among the labor
 5   economists who argue that immigration has a detrimental

 6   effect on native workers?

 7        A.   I would actually not say that at all.   What I would
 8   say is the following:   I would say that I tend to view

 9   immigration as creating both benefits and costs, and I have

10   actually written papers both documenting the benefit of
11   immigration, as well as the wage costs or fiscal cost of

12   immigration.
13        Q.   Now, when we're talking about the wage costs of
14   immigration, you're pretty much up there with the top people
15   cited, is that correct, for the proposition that immigration
16   has an adverse impact on wages?
17        A.   Well, the paper that I wrote in 2003, even though I
18   wrote it way before any of this began, I began to think about
19   it way, way before any of this began, has taken a life of its
20   own in the recent months.
21        Q.   Let's talk about the life of its own.   You would
                              Page 45
22   agree that your views or conclusions have definitely

23   generated reaction from other, what you would probably
24   believe to be highly credentialed economists as well?
25        A.   Yes.


 1        Q.   Now, among these propositions that have created
 2   some controversy is your estimate reflecting that if

 3   immigration rates increase the number of workers by 10
 4   percent then that particular skill set's wages will decrease
 5   by about 3 to 4 percent in the short run and reduce the labor
 6   supply for the native work force?

 7        A.   What exactly --

 8        Q.   That is one of the those that has taken on a life
 9   of its own?

10        A.   I would say it is a statistical fact that people

11   are interested in, and they are trying to if it is correct,
12   not just in the U.S., but also in other settings.

13             For example, last year the Journal of Development

14   Economics published a paper where a Ph.D. student at Columbia
15   University basically took the approach that I created in my

16   2003 paper and applied it to Mexico, and the interesting
17   thing about that application is Mexico is the mirror image of

18   the U.S., instead of people coming in, people are leaving, so
19   the supply and demand were to be applied to Mexico.
20             What you should see is as people left Mexico, the
21   wage would rise.   They found a 10 percent decrease in supply.
22   In other words, a 10 percent cut of numbers living in Mexico,
23   moving to U.S. raised the wage in Mexico by 3 or 4 percent.
24   So they got very similar findings to what I got, sort of in a
25   mirror image.
                                 Page 46


 1        Q.   In the context of the bottom run, what is minimum
 2   wage?
 3        A.   It is $5.15 an hour or something like that.      I

 4   don't know if Pennsylvania has a State minimum wage or not.
 5        Q.   That's fine.   What would be the 3 to 4 percent in
 6   view of that number?

 7        A.   Three or four percent of 5.15 or 8 percent of 5.15?
 8        Q.   No, 3 to 4 percent.
 9        A.   4 percent of 5.15 would be 20 cents an hour.
10        Q.   Now, people have criticized you for maybe

11   overestimating the adverse affect of immigration on the wages

12   of natives or people currently working in the U.S.      You're
13   aware that people have --

14        A.   I'm aware of all of this.

15        Q.   And, for example, one of the people who has
16   criticized you is Professor Card.      He is at U.C. Berkeley,

17   right?

18        A.   Um-hum.
19        Q.   You would recognize that he is a well-established

20   economist?
21        A.   Yes, he is.

22        Q.   He is of the opinion that the wage gap between high
23   school dropouts and high school graduates is actually
24   unchanged from pre-immigration years.      I'm not asking you to
25   agree with him, but you are aware that that is what his


 1   position is?

                                 Page 47
 2        A.     I don't know -- has he actually written that
 3   somewhat, I'm not really sure of that.
 4        Q.     Well, let's see.   I was hoping I didn't have to
 5   pull out all of the documents, but I got them here just in
 6   case.
 7               "As the evidence has accumulated over the past two

 8   decades, the local labor market outcomes are only weakly
 9   correlated with immigrant densities.    Some analysts have
10   argued that the cross city research design is inherently

11   compromised by inner City mobility" --
12               MR. ROSENBERG:   Actually, Your Honor, if you could
13   give me one second, let me find the specific portion so we
14   don't waste the Court's time.


16        Q.     "The leading alternative to a local market approach
17   is a time series analysis of aggregate relative wages.

18   Surprisingly, such an analysis shows that the wages of native

19   dropouts, people with less than a high school diploma,
20   relative to native high school graduates have remained nearly

21   constant since 1980, despite pressures from immigrant inflows

22   that have increased the relative supply of dropout labor and
23   despite the rise in wage gap between other education groups

24   in the U.S. economy."
25               That is from "Is the New Immigration Really So


 1   Bad?" By David Card.     You're familiar with that?
 2        A.     Yes, I am.
 3        Q.     Does that sound like something that Professor Card
 4   has said?
 5        A.     Well, don't forget that when you began reading

                                  Page 48
 6   this, which you then skipped over to another section, it is
 7   all based on this local labor analysis, and there is a big
 8   debate over of what the right approach is and, you know.
 9        Q.   Now, following your approach, a couple of Italian
10   economists --
11             THE COURT:   Before you go into it, that document

12   that you just quoted from, after this session, would you
13   please mark that for identification as the next exhibit for
14   the record and just make it part of the record?

15             MR. ROSENBERG:   Certainly.
16             THE COURT:   If you do quote anyone else and use --
17             MR. ROSENBERG:   Hopefully, he will be sufficiently
18   familiar with the authors and we won't have to go into the

19   documents.

20             THE COURT:   Okay.

22        Q.   Ottaviano and Perry, also prominent economists,

23   right?
24        A.   Not as prominent as David Card, but, yeah.

25        Q.   But they hold their own?


 1        A.   Okay.

 2        Q.   They have actually attempted to follow your
 3   methodology and reached a different conclusion to what you
 4   reach, is that correct?
 5        A.   It is interpreted that way often, but, in fact, if
 6   you look at the fine print in the paper, it is not so clear
 7   it is all that different, for the following reason:
 8             If you look at the paper in front of you, I'm sure
 9   you have it in front of you, you will see that what they find

                                Page 49
10   is that they do the same kind of exercise; in other words, I
11   think they look at 1990 through 2000 versus 1980 through
12   2000, right?
13        Q.    Correct.
14        A.    They say, if you look at the influx in 1990 and
15   2000, the impact on native workers is this much, and they

16   find a slight positive impact if I recall correctly, but the
17   impact on immigrants is hugely negative, like minus 20
18   percent.

19        Q.    Right.   And that is focusing on immigrants,
20   correct?
21        A.    But my data, as I repeated many times here, I treat
22   everyone prior to the beginning of the influx as a quote,

23   unquote, native.    In other words, everybody in the country is

24   treated the same.     I don't divide natives and immigrants.
25              So if you were to take the average in the Ottaviano


 1   Perry paper between what they called native and what they

 2   call immigrant and treat that with the preexisting
 3   population, you get a number that is very, very close to

 4   mine.
 5        Q.    Let's see, the non-partisan Congressional National

 6   budget office, I know you're probably not a big fan of this
 7   Senate Bill 2611, correct?     Would that be a correct
 8   assumption?
 9        A.    Why would you say that?
10        Q.    Well, it is my understanding that you supported the
11   alternative house bill, is that correct?
12        A.    Have I written actually anything?
13        Q.    That is my understanding, am I correct?

                                 Page 50
14        A.   I have never written on supporting anything like
15   this.
16        Q.   All right.   Let me set that aside.
17             The Congressional budget office in reporting to the
18   Senate actually reviewing your statistics has said that
19   essentially there is an over statement of the long-run impact

20   because it fails to account for certain variables and that is
21   because, as you say, you have to look at things as all things
22   being equal, or you basically have to eliminate certain

23   variables to come up with sort of a straightforward number,
24   is that correct?
25        A.   I believe the report you're citing refers to my


 1   original 2003 paper where all I presented was a short-run
 2   number that I discussed earlier.      Since then, I have expanded

 3   the analysis to include long-run numbers.      I don't think that
 4   applies to that.

 5        Q.   I am talking about the short run exclusively.     I'm

 6   talking exclusively about the short run.
 7        A.   In the report that I wrote for this case, I

 8   included both the short-run numbers and long-run numbers
 9   after all the adjustments that take place.
10        Q.   And the long-run number basically evens out at
11   zero, and I understand that there is a different result per

12   skill set, but the overall impact at the end is zero
13   according to your report?
14        A.   It has to be.   It is a theoretical constraint.
15   Given the way that we construct our models, we basically
16   build it in a way that in the long run the net impact is zero
17   on average for the average worker, even though for different

                                 Page 51
18   skilled groups, some could be negative and some could be
19   positive.
20        Q.     Now, you're familiar with The Wall Street Journal,
21   right?
22        A.     Yes, I am.
23        Q.     In fact, you contribute to The Wall Street Journal?

24        A.     I have.
25        Q.     Fairly reputable publication?


 1        A.     In some circles.
 2        Q.     In your circle?
 3        A.     What?

 4        Q.     In your circle?

 5        A.     In my circle, yes.
 6        Q.     It is a well-recognized publication in the business

 7   world?
 8        A.     Yes.

 9        Q.     Fairly widely read, correct?

10        A.     In what circle?
11        Q.     In the economic circle?
12        A.     Oh, yes.

13        Q.     And I'm sure you're aware that on April 13th, 2006,
14   the Journal reported on the results of the survey of notable

15   economists concerning the impacts of illegal immigration on
16   the economy.    You're aware of that, do you recall?
17        A.     I remember reading about it, but I don't really
18   recall what it said.     But it is the impact of unauthorized
19   immigration?
20        Q.     Correct.   Were you consulted or were you part of
21   this survey?

                                   Page 52
22        A.   No, I was not.
23        Q.   Now, would it surprise you to hear that more than
24   80 percent of those surveyed believed that illegal
25   immigration actually has either a slight or no impact on the


 1   bottom rung of the wage ladder?
 2        A.   What people say in surveys does not surprise me all
 3   that much.   The fact of the matter is that if one were to
 4   pick up academic literature and say, where exactly do you get
 5   that result?   There is no such paper that claims anything

 6   like that.
 7        Q.   But it wouldn't surprise you that a vast majority

 8   of economists would say, and I'm not saying it's slight

 9   positive, but a slight impact on overall wages?
10        A.   I don't know where people get impressions like that

11   from, because there is really no study that convincingly
12   shows for unauthorized immigration where the impact is.

13        Q.   Now, let me represent to you that -- would it

14   surprise you that the survey also found that all around
15   illegal immigration actually has no impact or a positive

16   impact on inflation?
17        A.   Again, I would want to know -- before I believe

18   what they say, I would want to know exactly which academic
19   study these economists are referring to in claiming things of
20   that type.
21        Q.   Let me jump to something else, because I don't want
22   to get you into something that is not in front of you and I
23   think that is fair.
24             Are you aware of a recent document, an open letter
25   to the President and Congress signed by about 500

                               Page 53

 1   economists --
 2        A.   No, I'm not.

 3        Q.   -- concerning illegal immigration?
 4             This is a document that was created by or

 5   originally drafted by the Independent Institute and it was
 6   circulated amongst economists.
 7        A.   I might have seen a press report to it somewhere,
 8   but I did not see the original document.
 9        Q.   Now, let me tell you, the following text basically

10   follows from this open letter to Congress --
11             THE COURT:   You will also mark this an exhibit.

12             MR. ROSENBERG:   I will mark this, yes, Your Honor.

13   You know what?    Let's put this aside.   I think we have sort
14   of gotten to a point where maybe Professor Borjas and I will

15   be able to agree on the truly important point.

17        Q.   Now, at one point in the past, and I realize it is

18   not your current position, you even stated that experts do
19   not fully understand the impact of immigration on wages, is

20   that correct?
21        A.   At one point in the past, I said exactly what?

22        Q.   Let me give you 1994 as a reference.
23        A.   Okay.
24        Q.   Would that sound like something you said in 1994?
25        A.   I worked on this topic in the 1980s through to


 1   1987, '88, and I left it, moved onto something else.    I
 2   really felt that there were issues at the time that we didn't
                              Page 54
 3   really understand as to how the economy worked to absorb

 4   immigrant supply in terms of the wage structure, and then I
 5   returned to the topic in '95, '96, something like that.
 6        Q.   Now, at the end of the day, you will agree with me

 7   that there's currently an unsettled debate among ranking
 8   labor economists about the actual impact of immigration on

 9   wages?
10        A.   I actually think that the debate has become more
11   settled in the sense that at least for the low skilled
12   workers, more and more people are willing to say that, in
13   fact, there is an impact there.

14             I think where it is unsettled is in two dimensions.
15   We don't really understand the long run or short run impact

16   distinction all that well and how the adjustments take place.

17             For example, there is a big debate right now on
18   whether native workers actually respond to immigrants by

19   moving in or out of towns.   There's a big debate on that.
20             I think in terms of the overall picture, was there

21   an impact?   I think at the low skilled labor market, I think

22   most people are willing to say, yes, there probably was an
23   impact.   We might disagree on the number.   It might be 3

24   percent, 4 percent, 8 percent.
25        Q.   It could even be zero according to some, correct?


 1   It could be positive according to some?
 2        A.   For the low skilled workers in the short run?
 3        Q.   Overall.
 4        A.   It cannot be positive for everybody, because we
 5   know in the long run it has to be zero in the wage impact.
 6   So it would be impossible to be a positive number for every
                              Page 55
 7   single person in the economy.

 8        Q.   Hopefully we will be able to streamline the rest of
 9   these questions, but at the end of the day, would you agree
10   with me that you present one side of this debate and, say,

11   somebody like Professor Card presents the other side of this
12   debate?

13        A.   Well, if you take David Card's papers, the fact of
14   the matter is, depending on which paper you look at, you may
15   be able to draw a different conclusion.
16             In his most recent work on immigration before the
17   one you cited, which is in 2001, he actually has a small

18   negative impact for low skilled workers.
19        Q.   His most recent work has a positive impact?

20        A.   No, I don't think he's ever shown a positive impact

21   for low skilled workers.
22        Q.   It's unsettled?

23        A.   It's zero or in his early work, slightly negative.
24        Q.   But there is no absolute consensus in the economic

25   world?


 1        A.   There is an ongoing debate over how best to measure

 2   the impact.
 3        Q.   Now, let's go actually now to your report.    I think
 4   we will all appreciate that now.
 5             THE COURT:   We're going to take a 10-minute recess.
 6   The stenographer has to have a break.
 7             (At this time, a 10-minute recess was taken.)
 9        Q.   You said that the economy adjusts over time as
10   employers take advantage of a cheaper work force, but it is
                              Page 56
11   not known how long these adjustments really take and it could

12   be one, it could be 20 years, or it could be after our
13   lifetimes, is that correct?
14        A.   Correct.

15        Q.   Now, you would agree that reducing available labor
16   at some point also raises wage rates beyond what is desired?

17        A.   Beyond what?
18        Q.   What is desirable.   I'm talking about the fact that
19   you state over time, employers take advantage of a cheaper
20   work force and the economy sort of adjusts, meaning they
21   ultimately zero out, is that correct?

22        A.   Correct.
23        Q.   We don't know how long that's going to take?

24        A.   No.

25        Q.   Now, let me ask you something, on Page 3 of your


 1   report, it's the next to last paragraph.   It's the last full

 2   paragraph.   It says, because of the difficulty of estimating

 3   the labor market impact of immigration at the level of the
 4   local labor market, you believe to this day it's difficult to
 5   assess the impact on the local labor market?

 6        A.   Prior to that paragraph in the report, the previous
 7   paragraph discussed three different issues that people have
 8   pointed out about local labor analysis.
 9        Q.   The individual community by itself is difficult to
10   assess without the context of the national market?
11        A.   Let me rephrase that a little from what I think I
12   would want to say is that giving the kind of data that we
13   have, which is very faulty to begin with, the kinds of things
14   we can look at the local labor market are limited and that's
                              Page 57
15   partly what is going on those previous three paragraphs.

16        Q.    There's a great deal of measurement there in the
17   measure of immigration in any particular locality?
18        A.    For example, even though if one had perfect data,

19   one might be able to measure the impact of immigration on any
20   level of community.   The fact of the matter is, by time you

21   get the census data, which is a random sample, you begin to
22   bring a little more knowing into the analysis.
23        Q.    Really, it's practically impossible to have perfect
24   local data?
25        A.    Impossible is a very strong word, but it's


 1   difficult.
 2        Q.    Today?

 3        A.    It's very difficult.

 4        Q.    Now, there are also other important factors that
 5   impact wages and diminish wages and diminish jobs that are

 6   also part of a national policy, for instance, globalization,

 7   correct?
 8        A.    Correct.

 9        Q.    So if we encourage investment in foreign countries,
10   such as, for instance, China which has fairly lower wages

11   than the United States for unskilled workers, essentially
12   even the minimum wage will be completely incompatible or will
13   not be able to compete with products that are being
14   manufactured abroad, is that correct?
15        A.    There are several ways in which I can answer that
16   and one of them is to the extent I can, when I did my
17   national labor market analysis, I intended to control for
18   many of the factors that affected the wage of skilled groups
                              Page 58
19   over the last 40 years.

20             In fact, not just did I account for the level of
21   the wage, but I accounted for factors that could affect
22   differentially the trend in the wage for each skilled group.

23   So what the impact I'm talking about is, is the impact that
24   is left after you control for all of these things that one

25   control for.


 1             Now, the second thing I can add to that is that

 2   globalization might matter, but don't forget, we cannot
 3   really out source all jobs.    We cannot really out source
 4   construction jobs.   We cannot really out source service jobs.

 5   So even with full globalization in terms of tradable, what
 6   people call tradable goods, there is still a large impact on

 7   the service sector and construction sector.

 8        Q.   But it would be fair to say that one outcome of
 9   increasing labor rates would also be that it might make

10   certain employers and suppliers of goods less competitive in

11   view of globalization?
12        A.   That is correct.

13        Q.   Now, were you provided -- you mentioned that you
14   reviewed the Hazleton's ordinances in preparing your report.
15             Which ordinances in particular did you review?
16        A.   The one on the web site or
17   something like that.
18        Q.   Now, in your opinion, is it low skilled workers
19   currently working at lower wages are removed from the City of
20   Hazleton's work force this may lead to an increase in wages?
21        A.   Could you repeat that slower?
22        Q.   I'm sorry.   Your opinion is that if low skilled
                               Page 59
23   workers currently working at the lower wages are removed from

24   the City of Hazleton, and we're talking about immigrants,
25   from the City of Hazleton's work force, then that may lead to


 1   an increase in wages at least for those jobs?
 2        A.    Yes.
 3        Q.    That's the assumption in your analysis?

 4        A.    It is not an assumption.
 5        Q.    That is your conclusion that if we remove the
 6   unlawful workers that are presently in Hazleton --
 7        A.    That's a conclusion of my analysis.   That is also

 8   the conclusion of what you seen happening at Crider and

 9   Swift.
10        Q.    Now, tell me something, without knowing more

11   information about the specific numbers of such jobs in the

12   City of Hazleton, the number of unauthorized people working
13   and so forth, one can't really predict with any degree of

14   certainty how significant the way adjustment is going to be,

15   correct?
16        A.    I can predict it will be in the direction of higher

17   wages, but the actual number, I did not conduct an analysis,
18   and, you know, it really depends much more on the local

19   context.
20        Q.    Let me see if I quote you correctly in your report.
21   Page 5, that would be the second paragraph of Section 5.    It
22   says, "I do not have any information that allows me to
23   estimate how large the reduction would be."
24              That would be the reduction in the size of the low
25   skilled work force?

                               Page 60

 1         A.   Which paragraph?
 2         Q.   Second paragraph after No. 5.   It starts with, "It
 3   is very likely."   If you go down five lines, halfway through,
 4   I do not have any information that allows me to estimate how

 5   large the reduction, and put in there, in the work force will
 6   be?
 7         A.   Correct.

 8         Q.   Really, the reduction in the size of the work force
 9   is what will determine the impact, is that correct?
10         A.   We need two numbers.   One is precisely how much of
11   supply shift there would be, and then the second number we

12   need is what an economist will call a wage elasticity, which

13   is for any given reduction in supply by how much would the
14   wage change.

15         Q.   It could be anywhere from zero percent to 1 to 2 to

16   3 to 4?
17         A.   My work suggests that a 10 percent decrease in

18   supply would change the wage in the opposite direction by 3

19   to 4 percent.
20         Q.   But we don't know if whether this is going to have

21   a 10 percent impact or otherwise, correct?
22         A.   Ten percent impact on what?

23         Q.   Whether it's going to be a 10 percent impact on
24   supply.
25         A.   No.   But one can take the 3 or 4 percent number and


 1   blow it up or divide it by accordingly, according to whatever
 2   supply shift one is willing to calculate or one is willing to

                                Page 61
 3   assume for Hazleton.
 4          Q.   And let's talk a little bit about the attenuation.
 5   Your knowledge that enforcement of such an ordinance may have
 6   a short-term effect and that the impact attenuates or becomes
 7   diluted over time, right?
 8          A.   Correct.

 9          Q.   And if an employer moves out, then any people the
10   employer employs at higher wages will be taken off the City's
11   roll for purposes of its earned income tax, assuming it takes

12   them with them, takes the employees with them?
13          A.   I did not do a thing with income tax in the
14   analysis, in my thinking.
15          Q.   I'm asking you just to assume.    I'm not asking you

16   to do any estimate on impact, but if you take a person out of

17   a locality, they are no longer paying taxes in that locality,
18   is that correct?

19          A.   I wouldn't think of it that people are being taken

20   out of the locality in the following sense.
21               The way I would argue it is the following:    The

22   ordinance goes into effect.    The supply of low skilled

23   workers, say, is cut drastically.      The wage of low skilled
24   workers in the short run would rise by some amount, and then

25   the attenuation begins as employers begin to realize that


 1   they can take advantage of this by moving someplace else or
 2   not.
 3          Q.   If the employer picks up and leaves, whatever
 4   income the locality receives from that employer is gone?
 5          A.   Well, let me follow up on that.    When the employer
 6   gets up and leaves, and suppose the workers remain behind,

                                 Page 62
 7   that puts more pressure, more downward pressure on the wage.
 8   That is the reason the wage is attenuated.   So the worker
 9   might not be gone at all.    He might be working at a slightly
10   lower wage.
11        Q.   So it will depress the wages of the workers or the
12   former workers, and it will also deprive the City of whatever

13   benefit this employer had by being in the City, it had from
14   having this employer in the City.
15             The City derived a benefit of having an employer, a

16   large employer, medium size employer, small employer.    If
17   that employer leaves --
18        A.   That employer will not be there, that's correct.
19        Q.   -- that benefit will no longer be there, and former

20   employees probably after losing income are also going to be

21   less likely to patronize local businesses?
22        A.   Former employees?

23        Q.   Yes.   People who are unemployed and no longer

24   perceiving an income because their employers have left under
25   this assumption.


 1        A.   It's not clear.    It might well be that what happens
 2   in the labor market is that the wage drops by a little bit.

 3   As more workers try to compete for the few remaining jobs,
 4   the wage tends to drops and that is why I'm saying that the
 5   short-run impact of the higher wage that you would see once
 6   the ordinance goes into effect over time be attenuated.
 7        Q.   Now, are you aware that the Mayor believes and has
 8   testified that Hazleton, West Hazleton and Hazle Township are
 9   basically adjoining cities or townships, and they are truly
10   corrected and intertwined?

                                 Page 63
11        A.   I'm not aware of that.
12        Q.   If I were to tell you that one of those three did
13   not have one of these -- did not have one of these
14   ordinances, then an employer could simply move six blocks
15   into the next township and not be subject to the impact of
16   these ordinances, correct?

17        A.   If that were correct, the attenuation would be much
18   easier.
19        Q.   If these governmental units or towns were truly

20   united, then truly the effect the on local economy would be
21   minimum, is that correct?
22        A.   Well, there would be an effect in the local economy
23   in those three town sector as compared to the rest of the

24   country, right.

25        Q.   Meaning the company moved six blocks down the road


 1   where these ordinances will be of no consequence to them.

 2        A.   If mobility is that easy, then the attenuation will

 3   happen very quickly.
 4        Q.   So the adverse impact could be minimal, and

 5   potentially none if we're literally talking six blocks down
 6   the street?

 7        A.   We're basically returning to scenario of the long
 8   run in the sense that all the adjustments that could take
 9   place have taken place.
10        Q.   So we take away the vacuum portion of it?
11        A.   Correct.
12        Q.   Now, you referred to the potential impacts of the
13   ordinance directed to business license and preface your
14   opinion with the following qualifier:   Assuming the ordinance

                                 Page 64
15   were enforced perfectly, you would expect a decline in the
16   demand for unauthorized immigrants by Hazleton employers,
17   correct?
18        A.     Correct.
19        Q.     So in other words, employers would be afraid to
20   hire these potentially risky employees, and even if they

21   wanted or needed any such employees for fear of the serious
22   penalties in the ordinance, correct?
23        A.     Correct.

24        Q.     They could lose their license.   They could risk
25   fines.    There are threats to their viability, et cetera.


 1               Those immigrants, as a result, will be redirected

 2   to other communities, correct?
 3        A.     Correct.

 4        Q.     So even if the employer doesn't move, maybe these
 5   employees are redirected next door to one of these adjoining

 6   towns?

 7        A.     Again, if mobility is that easy, that makes the
 8   attenuation effect much greater.

 9        Q.     So, again, it would change -- it would dramatically
10   change the outcome of your analysis?

11        A.     I wouldn't say it would dramatically change the
12   analysis.    I would just say the scenario that you're
13   considering, the short run and long run have to be defined in
14   the whole context.
15        Q.     Let's take the following assumption.   We have 10
16   unauthorized workers in the City as an example, and the 10
17   unauthorized workers actually find work six blocks down the
18   road in the next township, and when they can't work in

                                Page 65
19   Hazleton, they move to Hazle township, which has no such
20   ordinance, and they start work the following day or they
21   start work the following week.
22             Will there be any impact on the market, any
23   perceivable impact on the market?
24        A.   Any kind of migration, either by labor or capital,

25   between the town affected by the ordinance and other towns


 1   will clearly lead to what I call the long-run effect, which
 2   is all things have attenuated.
 3             Now, that is not to say that there's no impact in
 4   the end, because there will still be some other solutional

 5   impact, because it might well be that the ordinance sort of,

 6   for example, the ordinance, even though it seems to work only
 7   in this particular part of the town, might have an impact on

 8   incoming migrants.   They might say, well, why bother in going
 9   there if I can go someplace else where I don't have to jump

10   all these hurdles.   So there still could be some effects of

11   that type.
12        Q.   It could also serve as a deterrent of bringing in
13   new workers into town, is that what you're saying?

14        A.   No unauthorized workers, that's right.
15        Q.   We will get to that also in a second.

16             Did you read any of the City of Hazleton City
17   Council minutes before drafting your report?
18        A.   Did I read what?
19        Q.   Read any of the City Council meeting reports or
20   minutes before drafting your report?
21        A.   I did not.
22        Q.   Did you see any intention anywhere or design for

                               Page 66
23   these ordinances to attract authorized workers into the City
24   in the language of the ordinance?
25             Did you see any intent or design to attract


 1   authorized workers into Hazleton?
 2        A.   I don't recall from reading it.
 3        Q.   I don't either.

 4             Have you been told that City Council gave
 5   consideration to the fact that its ordinance would have the
 6   effect of driving some employers to adjoining communities?

 7        A.   Have I been told that the ordinance will drive
 8   employers away from the community?

 9        Q.   Yes.

10        A.   I haven't been told that by anyone.
11        Q.   Now, were you told that City Council gave any

12   deliberation to what the likely wage impact would be in terms
13   of enforcing this ordinance?

14        A.   I have no information on deliberations.

15        Q.   From your perspective, that would be an important
16   consideration?

17        A.   What?
18        Q.   Taking into a debate on what the wage impact is

19   going to be of any such ordinance would be an important
20   consideration from your field?
21        A.   It would be important to know what they discussed,
22   you're saying?
23        Q.   No.
24        A.   I'm misunderstanding.
25        Q.   Would you consider that an analysis of the economic

                                 Page 67

 1   impact on wages of these ordinances would be useful to a town
 2   intending to enact these ordinances?
 3        A.   Yes.

 4        Q.   Did you see any finding or conclusion anywhere in
 5   the ordinance when you reviewed it that reflected an

 6   intention on the part of the City of Hazleton to reduce its
 7   lower skilled jobs at the local level?
 8        A.   Did I see anything like that in the report or in
 9   the --
10        Q.   In whatever it is you reviewed.

11        A.   No.
12        Q.   Did you see any efforts by the City trying to

13   encourage higher skilled or better educated workers to come

14   into Hazleton to work?
15        A.   I have not seen inference by the City one way or

16   the other.   I'm not familiar with any of the discussions or
17   deliberations.

18        Q.   Now, for instance, if the ordinances -- we

19   discussed earlier today the fact that there is more than one
20   ethnic and national group that is present and has immigrated

21   into Hazleton recently.
22             If the ordinances, for instance, were to drive out

23   Eastern Europeans who command potentially higher wages,
24   wouldn't that have an adverse effect, if you're driving
25   employees who command higher wages?


 1        A.   Where people come from doesn't really matter in
 2   terms of the economic impact.    What happens is what kind of
 3   work you do, what skill group you belong to.
                              Page 68
 4               If the ordinances were all of a sudden to change

 5   and say, we are going to discourage the entry of highly
 6   skilled workers, then the highly skilled workers in Hazleton
 7   would be the ones that benefit.

 8        Q.     Now, it is logical to conclude if there has been an
 9   influx into Hazleton it's because lower skilled jobs are

10   available, correct?
11        A.     It may well be.
12        Q.     That would be a reasonable conclusion.      Right now
13   if there was no work, at least some of those immigrants would
14   not be drawn to the City?

15        A.     Actually, let me return to the previous question.
16   If that were true, if, in fact, the high wage in Hazleton are

17   the attract -- the magnet that is bringing all of these

18   unauthorized workers in, that may be another reason why the
19   local labor market analysis might fail to find an impact on

20   Hazleton.
21        Q.     I do understand that, but I think the assumption

22   I'm asking you to make is the following:       If what attracts

23   people to come into Hazleton is the availability of these low
24   skilled jobs, it makes sense that people migrate to Hazleton,

25   is that correct, if those jobs are available?


 1        A.     If what attracts people.      I mean, availability, I
 2   don't quite know what you mean by availability.
 3        Q.     There is a lot of vacancies --
 4        A.     At what wage?    Is the wage in Hazleton higher than
 5   the other towns?    Are they paying the going wage?     Are they
 6   paying a lower wages?
 7        Q.     Do you know that?
                                Page 69
 8        A.   I do not know.

 9        Q.   Do you know what the wage is?
10        A.   I do not know that.
11        Q.   There is something attracting workers, or low

12   skilled workers to Hazleton, if they are migrating into the
13   town, is that correct, that would be a correct assumption?

14        A.   There is something that is an attraction to people
15   from the outside, unauthorized workers that is bringing
16   workers in, whether it is a high wage, availability of jobs,
17   whether employers are out, word of mouth is getting out, I
18   don't know.

19        Q.   Let's say there is new employers around, and they
20   require these low skilled employees.   So these low skilled

21   employees may very well be required to serve the developing

22   manufacturing or whatever kind of facilities they are working
23   in, correct?

24        A.   Yes.
25        Q.   Now, is it better economically to fill lower wage


 1   jobs or not fill them at all?
 2        A.   That is not -- the jobs aren't fillable.    Let me

 3   give you an example not related to unauthorized immigration,
 4   but related to immigration in general.
 5             Take New York City.   If you were to go into New
 6   York City, almost every cab driver would be foreign born.
 7   The taxi driving work force in New York City is mostly
 8   foreign born.
 9             If you go to a town that is not so -- like in Iowa
10   somewhere, where there are many fewer immigrants, does that
11   mean that if you go into towns there are many fewer
                              Page 70
12   immigrants, the taxi industry disappears?   No.   The taxi

13   industry is still there, but it's paying at a higher wage.
14              So if you were at the airport in New York City and
15   you land, there would be lots of cabs driven by foreign born

16   workers and probably the cab fare is lower than it would be
17   otherwise.

18              If you go to Iowa, there will still be a cab
19   waiting for you at the airport, but you might have to pay a
20   little more than you're used to than you would have paid in
21   New York City.
22              It is not that the jobs are gone or disappear.    It

23   is just the going wage will change and adjust to the lack
24   of -- to the non-entry of unauthorized workers.

25        Q.    But certainly it is worthwhile to maximize


 1   employment, meaning if the jobs are available, have them be
 2   filled.

 3        A.    That is not any kind of premise in economics that

 4   the goal of the U.S. should be to maximize employment.
 5        Q.    Now, you haven't looked at the phenomena of an
 6   ordinance like this causing lawful workers and their families

 7   to leave the City due to maybe perceived collateral damage,
 8   maybe some anti-immigrant animus or perception of
 9   anti-immigrant animus?
10        A.    I have not looked into that at all.
11        Q.    That is because really this hasn't happened before,
12   correct?
13        A.    I have not looked into that at all in this context
14   or in any other context.
15        Q.    That is something that you did not take into
                               Page 71
16   account when preparing your report, correct?

17        A.    I did not take that into account at all.
18        Q.    Have you been provided with any information that
19   indicates that significant number of people have left even

20   before these ordinances went into effect?
21        A.    I have not.

22        Q.    So let me tell you, if the ordinances already had
23   the effect of driving out people, driving out immigrants, put
24   it that way, even if it does go into force, then the economic
25   impact may be minimal to none, correct?


 1        A.    If the ordinance has already gone into effect, then

 2   if all the adjustments -- if employers, when this was enacted
 3   and not enforced, somehow acted as if it was enforced, then

 4   all of this would have happened already.    We would be in the

 5   short run right now.
 6        Q.    We may be in the short run.   We may even be past

 7   it, correct?

 8        A.    I don't know past it.   It is unlikely for all these
 9   adjustments to take place in two or three months.

10        Q.    Now, if an employer is operating and employing
11   unauthorized workers without a business license, then the
12   ordinance would have no impact or little impact on any such
13   employers and not generate any potential wage changes or wage
14   gains, is that correct, if I ask you to make that assumption?
15        A.    If the employer is already hiring authorized
16   workers.
17        Q.    No.   If the employer does not have a license and is
18   hiring unauthorized employees.
19        A.    If everything is off the books, in other words?
                               Page 72
20        Q.   Yes.

21        A.   That's correct.
22        Q.   So it makes no difference?
23        A.   If all the employment is already illegal both from

24   the level of the worker being there and the employer hiring
25   them and nothing is being reported, it all takes place, and


 1   assuming the employer doesn't want to pay attention to the
 2   ordinance from this point on, then it is already -- yeah.
 3        Q.   Now, if a job is replaced with a higher paying
 4   worker who commutes from out of town, that also doesn't do

 5   much for the town, does it?

 6        A.   What is the scenario?
 7        Q.   If the vacancy is filled by somebody who has to

 8   commute, say, a half hour from a different town that is not

 9   connected, the town is not going to see the benefit of that
10   employee, correct?

11        A.   Well, it depends.   Is the employee mowing someone's

12   lawn, for example?   Then clearly the people in the town see
13   the benefits.

14        Q.   Let me phrase it this way.   One of the benefits the
15   City perceives from having its own people employed is to
16   generate revenue as a whole, is that correct?
17             So if somebody from out of town comes in and fills
18   that gap and returns to his home out of town, then that
19   benefit is not derived by the town, is that correct?
20        A.   There are various benefits to be derived.    One
21   benefit is to the employer.   The other benefit is to the
22   consumer, and you have to be very careful in delineating
23   which benefits you're talking about.
                              Page 73
24              It seems to me if it's a service kind of job, no

25   matter where you commute from, you're doing a service that


 1   there is a voluntary trade taking place.     Somebody is paying

 2   you to mow a lawn and both parties are benefiting.
 3        Q.    And a manufacturing job, for instance?
 4        A.    Manufacturing is sort of basically the same way in

 5   a sense.   Voluntary exchange is taking place where you're
 6   benefiting and the person hiring you is benefiting.
 7        Q.    So potentially it could benefit the market.    It
 8   doesn't necessarily benefit the locale?

 9        A.    I don't know.    I haven't studied to the extent to

10   which workers go out on lunch time and buy things in the town
11   and pay sales taxes.   I don't really know.

12        Q.    Then I don't want you to go into that.

13              Now, you're not here to tell the Court that the
14   theoretical positive impact of local wages for low income

15   workers is more important than the loss of business income or

16   loss of tenant income or loss of taxes that may result from
17   the loss of that work force, correct?

18        A.    All I looked at in my report was the wage impact.
19   I did not look at any other impact of the ordinance.

20        Q.    And you don't necessarily put that above any other
21   of these considerations?
22        A.    Or below.
23        Q.    Fair enough.
24              Now, you talk about assimilation of a model that
25   leads to certain numbers listed on the table of Page 4 of


                                 Page 74

 1   your report.    Do you have a copy of that model with you?
 2        A.    With me?
 3        Q.    Yes.
 4        A.    Well, I actually do.    Do you want it?    It is in my
 5   briefcase.

 6        Q.    That is okay.    I think the Court will appreciate it
 7   if we don't go through it right now.
 8        A.    It is a very technical model.

 9        Q.    Now, in terms of short term versus long term, we
10   talk about capital adjustments to the immigrant influx,
11   correct?
12        A.    Correct.

13        Q.    Now, that model assumes that the short run presents

14   a situation where capital has not adjusted at all to
15   immigrants, is that correct?

16        A.    Correct.

17        Q.    Is that a factually viable situation or is it just
18   a hypothetical?

19        A.    Hypothetical.    In economics, there are

20   hypotheticals we consider to sort of simulate these kinds of
21   models.    The two hypotheticals are either capital doesn't

22   change at all or all the changes that could take place have
23   taken place.

24        Q.    That would be the case of the long run.     The long
25   run assumes that there is a perfect adaptation to the


 1   immigration?
 2        A.    Correct.   More technically, it assumes just like in
 3   the short-run model, you assume that the stock of capital has

                                 Page 75
 4   not changed at all as a result of immigration.
 5              In the long run, you assume that the price of
 6   capital, the return to capital hasn't changed at all as a
 7   result of immigration.
 8              The argument being that when capital -- when
 9   immigrants first come in, employers gain; therefore, the

10   return to capital goes up.    Well, over time, the return
11   should dissipate itself as people take advantage of it.     In
12   the end, you go back to where you were in the beginning.

13        Q.    So both the short term and the long-term
14   conjectural because no complete -- no complete lack of
15   preparation or adjustment exists, just like no perfect
16   adaptation to adjustment exists?

17        A.    They are benchmarks by which we get abound of where

18   the effect might be at some point during this sort of dynamic
19   period in which these effects are seen.

20        Q.    When we follow these numbers, these benchmarks are

21   precisely conjectural and we fit everything somewhere in
22   between?

23        A.    Yes, you would say somewhere in between, depending

24   on where you are in time.
25        Q.    Now, give me one second.   Hopefully we can skip


 1   through a couple of these.
 2              Now, your report does not address how many
 3   competing authorized workers are readily available and
 4   willing to take on the jobs that potentially could be lost if
 5   these ordinances would go into effect, correct?
 6        A.    I do not know how many there are.
 7        Q.    You make it clear in your report that you have not

                                 Page 76
 8   done any specific study with regard to the labor or job
 9   market or economics for the City of Hazleton, or Luzerne
10   County or Pennsylvania?
11        A.     That's correct.
12        Q.     And so far as you know, the City of Hazleton did
13   not perform any such study before enacting the ordinances

14   that we're challenging here?
15        A.     I know no such study.
16        Q.     Now, your conclusion states that driving out all

17   unauthorized workers will have significant economic benefits
18   to authorized workers, is that correct?
19        A.     Where are you reading that from?
20        Q.     Let's go to the last page.    "It is expected that

21   the reduction of unauthorized workers in the Hazleton

22   community will produce significant economic benefits for
23   competing authorized workers in the Hazleton community."

24        A.     And competing is the crucial word here.

25        Q.     Right.   Are you aware of how many unauthorized


 1   workers are in Hazleton?

 2        A.     No.   I mean, I have seen the number that I
 3   mentioned earlier, but I don't have any other direct

 4   evidence.
 5        Q.     And we don't recall what that number is?
 6        A.     6,000.   I don't recall.    I really don't recall.
 7        Q.     If the unauthorized worker were to gain a green
 8   card or become legalized or gain citizenship, then he or she
 9   would automatically become an authorized worker, correct?
10        A.     That's correct.
11        Q.     And every day some percentage of unauthorized

                                   Page 77
12   workers become authorized?
13        A.   I suspect.
14        Q.   Would that be more than a suspicion?   I think every
15   day people are granted --
16        A.   People adjust status every day, yes.
17        Q.   Congress has been considering whether to permit

18   greater numbers of workers to adjust their immigration
19   status, is that correct?
20        A.   Congress is considering a way of letting

21   unauthorized workers try to find an easier path to getting a
22   green card.
23        Q.   It is fair for me to represent that that's
24   adjustment?

25        A.   That's an adjustment to status, yes.


 1        Q.   Now, your analysis is premised on the assumption
 2   that ordinances will be enforced perfectly, correct?

 3        A.   It is not solely based on that.   I mean, the

 4   results are clearly much more precise if it were enforced
 5   perfectly, because then it's a very clear cut example, but if

 6   it is enforced, say, with 80 percent success, that still
 7   creates an 80 percent sort of outflow of workers than you

 8   would see otherwise in some sense.
 9        Q.   Now, you and I discussed that the assumption that
10   you made was that these ordinances would essentially rid the
11   City of current unauthorized workers, is that correct?
12        A.   If they do, then everything I've said follows
13   pretty precisely.   If they only do so partly, then everything
14   should be weakened by that percentage amount.
15        Q.   If I were to ask you to assume that the ordinance

                                 Page 78
16   will have no effect whatsoever on the unauthorized workers
17   who are currently employed in Hazleton, would your conclusion
18   change?
19        A.   If the ordinance doesn't at all affect the supply
20   of workers in Hazleton, then it shouldn't matter.
21        Q.   So were you ever advised that the ordinance was

22   changed so as to apply only to prospective hires, and that
23   all people currently in Hazleton would be unaffected by this
24   ordinance?

25        A.   No.


 1        Q.   So is it fair to say that you would certainly

 2   change your position if that were the case?

 3        A.   No, because the fact of the matter is, as you said
 4   before, there's an inflow of unauthorized workers coming in,

 5   and therefore, the dynamics of this would actually be
 6   affected by this.

 7        Q.   Wait, Professor, you just told me that if this

 8   ordinance were to have no effect on the unauthorized workers
 9   in Hazleton, then it would effectively leave it without

10   effect in terms the analysis that you have performed.
11             MR. KOBACH:    Actually, that is not exactly what he

12   said.
13             THE COURT:    He's asking him.   He knows what he
14   said.   Go ahead.
15             THE WITNESS:    There is two aspects of this.   One
16   is, there are people not hired, and by presumption, you're
17   saying people not hired are not affected by this at all, and
18   then the other thing to consider is, there are people coming
19   to the market continually, and those people will be affected

                                Page 79
20   by this.
21              In that case, even if you were right and nobody now
22   hired is affected by it at all, the fact of the matter is
23   they'll have turn over in the labor market, and the people
24   coming into the market will be affected by it, and I don't
25   know how much turnover there is, in fact, in Hazleton.



 2        Q.    Well none of us do, correct?
 3        A.    I don't know.
 4        Q.    Now, here's your conclusion:     It is expected that
 5   the reduction of unauthorized workers in the Hazleton

 6   community will produce significant economic benefits.      The

 7   reduction means taking a way what is already there, is that
 8   correct?

 9        A.    You forgot an important part of the quote, to
10   competing --

11        Q.    For competing --

12        A.    That is a crucial phrase.
13        Q.    Let's do the whole thing.     "It is expected that the
14   reduction of unauthorized workers in the Hazleton community

15   will produce significant economic benefits for competing
16   authorized workers in the Hazleton community."

17              So this assumes that unauthorized workers are being
18   taken out, correct?
19        A.    This assumes that the ordinance somehow is able to
20   reduce the number of unauthorized workers employed in
21   Hazleton, either now or in the future through some kind of
22   turnover taking place and the new inflow being able to
23   retire.

                                 Page 80
24        Q.     Now, I'm not going to grill you anymore on this.
25   Maybe something that is a little bit more pleasant between


 1   you and I.
 2               Now, you were born in Cuba, correct?

 3        A.     Yes, I was.
 4        Q.     You immigrated to the United States in 1962?
 5        A.     Correct.
 6        Q.     Twelve years old?
 7        A.     Twelve years old.

 8        Q.     That was before Peter Pan, right, right before?
 9        A.     Before what?

10        Q.     Operation Peter Pan?

11        A.     No.    It was during.   I wasn't part of the
12   Operation Peter Pan, but it was during Operation Peter Pan.

13        Q.     This was due to a Federal waiver of quotas that was
14   imposed by John F. Kennedy, correct?

15        A.     Correct.

16        Q.     And this specifically impacted only Cuba?
17        A.     Correct.

18        Q.     Now, you Anglicized your name, is that correct?
19        A.     Actually, my name is still Jorge.    My family calls

20   me Jorge.
21        Q.     You go by Jorge, but George is just easier in the
22   community?
23        A.     Yes.
24        Q.     Now, you still consider yourself Latin American,
25   correct?


                                  Page 81
 1        A.   Why is that relevant?

 2        Q.   Just --
 3        A.   I mean, it is completely irrelevant to the case,
 4   right?

 5        Q.   Well, do you still appreciate Cuban culture?
 6        A.   I love Cuban food, if that's what you want to know.

 7        Q.   Yes.    That actually helps me a lot.   And you still
 8   stay in contact with Cuban friends?
 9        A.   No.    I mean, in the sense from Cuba itself?
10        Q.   Not from Cuba itself, but --
11             MR. KOBACH:    Your Honor, this is interesting, but

12   I'm not sure it's relevant.
13             THE COURT:    I agree.   Sustained

14             MR. ROSENBERG:    I have nothing further for now.

15   Thank you very much.
16             THE COURT:    Any redirect?

17             MR. KOBACH:    Three minutes.
18                         REDIRECT EXAMINATION


20        Q.   Professor Borjas, I just want to clarify a couple
21   of things.   At the beginning of cross examination, you were

22   talking about differences between legal and illegal or
23   authorized and unauthorized workers.

24             Let me make sure that we have this correct.     Is it
25   correct to say that the difference is unclear between legal


 1   and illegal workers with respect to their willingness to take
 2   a low paying job, is that correct?
 3        A.   That's correct.
 4        Q.   Is it correct that it is clear that unauthorized
                              Page 82
 5   aliens drive down wages more than authorized aliens?

 6        A.   To the extent that authorized workers are willing
 7   to take jobs at lower wages, then they produce even more
 8   depression in the legal market; therefore, they would have a

 9   greater wage impact in the labor market.
10        Q.   In this case --

11        A.   Negatively.
12        Q.   -- opposing counsel asked you a whole series of
13   questions about driving businesses to neighboring
14   communities, correct?
15        A.   Correct.

16        Q.   When he asked you these questions and he mentioned
17   Hazle township and West Hazleton, which are the adjacent

18   communities, opposing counsel may have been unaware that, in

19   fact, those neighboring communities do actually have virtual,
20   exact replicas of the Hazleton ordinance in place already.

21             So assuming that, that the neighboring towns have
22   the same ordinance in place, would there be any reason for

23   them to leave to the neighboring towns?

24        A.   Everything that I have said in my report basically
25   holds as if it was one labor market.


 1        Q.   City Council said in its findings, and I'm not
 2   going to make you -- I will read it to you, and I think
 3   opposing counsel will accept this.
 4             In Section 2C of the ordinance, No. 18, they said
 5   the following:   "That unlawful employment of illegal aliens
 6   harms the welfare of authorized U.S. workers."   Is that a
 7   correct conclusion?
 8        A.   Say that again, please.
                              Page 83
 9          Q.   The City Council said "That unlawful employment of

10   illegal aliens harms the welfare of authorized U.S. workers."
11   Is that a correct conclusion in your view?
12          A.   Unlawful hiring --

13          Q.   Unlaw employment.
14          A.   Unlawful employment of unauthorized workers -- so

15   employment -- current employment of illegal immigrants harms
16   who?
17          Q.   The welfare of authorized U.S. workers.
18          A.   My conclusion would be employment -- the employment
19   of illegal -- the influx of illegal immigrants into the

20   particular labor market we're talking about has reduced the
21   wage of competing workers.

22               As a result, those competing workers, their wage

23   will be better, will be higher had this influx never taken
24   place or where this influx stopped to some means.

25          Q.   So presumably having higher wages improves their


 1   welfare then?
 2          A.   Correct.
 3          Q.   Would you also say that that is a reasonable

 4   conclusion?
 5          A.   Yes.
 6          Q.   Finally, the last question about prospectivity.
 7   Did you say that this ordinance would still have a
 8   substantial effect on incoming labor even if it did not
 9   affect the wage of -- still have a substantial wage effect if
10   it only applied to incoming labor, as opposed to existing
11   labor?
12          A.   Again, this is -- we know from a lot of other
                                Page 84
13   studies, not in this context, that wage levels, expected wage

14   levels, expected employment opportunities, affect migration
15   flows.
16              In other words, people move to places where they

17   think the wage will be high or there are jobs available.       So
18   to the extent that this ordinance sort of creates this

19   barrier and creates a little uncertainty in how easy it is to
20   get a job or how high a wage you can get when you get there,
21   that will clearly create this incentive to migrate there.
22              MR. KOBACH:   Thank you.    No further questions.
23              MR. ROSENBERG:   Very, very briefly, Your Honor.

24                          RECROSS EXAMINATION


 1        Q.    Professor, let me just confirm what we said

 2   earlier.   You're not aware of what distance there is between
 3   the next town which may or may not have ordinances such as

 4   these?

 5        A.    I am not.
 6        Q.    And the lesser the distance -- what we were talking
 7   about is the lesser the distance, the lesser the short-term

 8   impact and long-term impact to adjust, correct?
 9        A.    Well, if it's really localized, it's all part of
10   the same labor market.
11        Q.    And you really have no idea what impact an
12   ordinance like this might have, in terms of, if it does
13   increase wages, it could ultimately -- you're balancing out
14   effectively is that by increasing wages, ultimately what it
15   probably will do is drive businesses out of the locale into a
16   locale that commands lower wages, if that is available in
                              Page 85
17   that field?

18        A.   No, I wouldn't agree with the scenario.     The reason
19   is that a high wage, before driving businesses out, it may
20   actually attract many authorized workers in, and thereby

21   lower the wage through the presence of authorized workers.
22        Q.   If the employer finds that, let's call it the

23   exodus of workers actually generates lower wages in a nearby
24   location, there is also a likelihood that the old employer
25   will move to a new location where the cost of manufacturing,


 1   the production is less than it is at its current location, is
 2   that correct?

 3        A.   There is.
 4             MR. ROSENBERG:    I don't have anything further.

 5             THE COURT:   Dr. Borjas, you are excused.    Thank you

 6   very much.
 7             THE WITNESS:    Thank you.

 8             THE COURT:   Mr. Wilkinson.

 9             MR. WILKINSON:    Your Honor, the Plaintiffs call
10   Professor Stephen Yale-Loehr.

11   STEPHEN YALE-LOEHR, called as a witness, having been duly
12   sworn or affirmed according to law, testified as follows:
13                          DIRECT EXAMINATION
15        Q.   Good morning, Professor.
16        A.   Good morning.
17        Q.   You have in front of you Plaintiffs' 205?
18        A.   Correct.
19        Q.   Do you recognize this document?
20        A.   Yes, I do.
                                Page 86
21        Q.     Is this an accurate copy of your CV?

22        A.     Yes.
23        Q.     Where do you live Professor Yale-Loehr?
24        A.     Ithaca, New York.

25        Q.     Could you describe for us your educational


 1   background?

 2        A.     I went to Cornell University as an undergraduate
 3   and graduated in 1977, and I went to Cornell Law School, and
 4   graduated from the law school there in 1981.
 5        Q.     It sounds like you like Ithaca?

 6        A.     I grew up there.    I'm very happy there.

 7        Q.     Turning to Page 2 of your CV, you were away from
 8   Ithaca for some time after graduating law school?

 9        A.     Yes.   I was in the Washington D.C. area for about

10   10 years.
11        Q.     Can you describe your employment during that

12   period?

13        A.     Yes.   After I graduated from law school, I first
14   clerked for a Federal judge in Syracuse, New York for one

15   year, and then I went to Washington, D.C., where I worked for
16   a large firm there doing both international trade and
17   immigration law.
18               After a few years there, I went and worked at a
19   legal newsletter specializing in immigration called
20   Interpreter Releases.    I did that until we moved back to
21   Ithaca in 1991.
22        Q.     Can you describe your current employment in Ithaca?
23        A.     I do three things.   I'm of counsel at a law firm in
24   Ithaca known as Miller Mayer. I also teach as an adjunct at
                              Page 87
25   Cornell Law School, and I'm also coauthor of a 20-volume


 1   immigration law treatise.
 2        Q.     Let's talk a little bit about your immigration

 3   practice.    How long have you been practicing as an
 4   immigration lawyer?
 5        A.     Since 1982.

 6        Q.     Continuously?
 7        A.     Correct.
 8        Q.     And what sort of immigration cases do you do?
 9        A.     I do primarily business immigration, helping people

10   or companies get work visas, either temporary or permanent.

11        Q.     And moving onto your academic employment, you said
12   you were an adjunct professor?

13        A.     Correct.

14        Q.     What courses do you teach?
15        A.     Every fall I teach a seminar on immigration policy,

16   and every spring I co-direct a political asylum clinic where

17   we help people get or apply for asylum.
18        Q.     Can you tell me a little bit more about the policy

19   seminar, what sort of topics you cover there?
20        A.     The seminar covers sort of policy and

21   Constitutional bound work of immigration law.    So we cover
22   topics such as Constitutional foundations of immigration law,
23   employer sanctions and anti-discrimination, asylum, those
24   kinds of things.
25        Q.     And in the clinic, what sort of cases do you do?


                                  Page 88
 1        A.    We represent people who are applying for either
 2   political asylum or relief under the Convention Against
 3   Torture, and normally these are people who have already had a
 4   hearing before an immigration judge without an attorney to
 5   represent them and now they are appealing to the first
 6   administrative level and so we step in at that point and

 7   represent them at that level.
 8        Q.    What is your role in the clinic?
 9        A.    I and one other teacher supervise the students in

10   the clinic.
11        Q.    And how long have you been teaching?
12        A.    I think I started at Georgetown in 1988, and I have
13   been teaching at Cornell Law School since 1991.

14        Q.    Are there any other immigration professors at

15   Cornell?
16        A.    Nobody else teaches immigration law.

17        Q.    Are you a member of any societies or associations?

18        A.    I'm a member of the American Immigration Lawyers
19   Association, and also a member of the American Bar

20   Association.

21        Q.    Do you hold any offices in those associations?
22        A.    Yes.   In the American Immigration Lawyers

23   Association, I chair their business immigration committee.
24   I'm also a member of their immigration reform committee and a

25   member of their immigrant investor committee.


 1        Q.    Turning back to the second page of your CV, there
 2   is a list of publications that begins there and continues for
 3   some time.
 4              Is that a complete list of your publications?

                                Page 89
 5        A.   No.    It is just sort of the most recent articles
 6   and my most recent books.
 7        Q.   So approximately how many books and articles have
 8   you published total?
 9        A.   Over 200.
10        Q.   Are those all in the field of immigration law?

11        A.   Yes.    Except, very early on, I had a few on
12   international trade law.
13        Q.   What are some of the topics that your publications

14   have covered in immigration law?
15        A.   They cover such things as employer sanctions, new
16   development in the law.    When Congress passes a law, I often
17   will write about that.    The rights of asylum seekers.

18             I have written about exchange visitor visas.    I

19   have written about the recent increase in the number of
20   appeals that go to Federal Courts from immigration decisions

21   many.   So it is fairly diverse within immigration law.

22        Q.   You also mentioned earlier that you co-edit a
23   treatise on immigration law?

24        A.   Correct.

25        Q.   Is this Volume 1 of your treatise?


 1        A.   Yes, it is.
 2        Q.   How many volumes are there in this publication?
 3        A.   Twenty.
 4        Q.   Like this?
 5        A.   Correct.
 6        Q.   And how many co-authors do you have for that?
 7        A.   One co-author, Stanley Mailman.
 8        Q.   How long have you been involved in editing the

                                 Page 90
 9   treatise?
10         A.    I joined as a co-author in 1994.
11         Q.    How frequently is the treatise updated?
12         A.    We send in updates to our publisher four times a
13   year.
14         Q.    What is the process of keeping a treatise like this

15   updated?    What do you have to do?
16         A.    I need to stay on top of all new developments in
17   immigration law, whether it is legislation, regulations,

18   cases.
19               I have students at Cornell who will assist me in
20   finding those new materials and then I either will write them
21   myself, or they will do the first draft.      So I will edit what

22   they write so what we send to the publisher is up to date.

23         Q.    Does this treatise involve, for example, work
24   authorization, how that is obtained and maintained?

25         A.    Yes.   That's in Chapter 7.


 1         Q.    What about adjustment of status?
 2         A.    Yes.   That is in Chapter 51.

 3         Q.    Asylum?
 4         A.    Asylum is in Chapter 33 and 34.

 5         Q.    Relief under the Convention Against Torture?
 6         A.    That is also in Chapter 33 and 34.
 7         Q.    Removal proceedings?
 8         A.    Remove proceedings under the new law are in Chapter
 9   64.   Under the old law, before 1996, that is in Chapter 72.
10         Q.    Does it include an overview generally of
11   immigration law and how it operates?
12         A.    The first couple chapters of the treatise have an

                                 Page 91
13   overview.
14        Q.     Has the treatise been cited by Federal Courts?
15        A.     Yes, over 400 times, including the U.S. Supreme
16   Court.
17        Q.     Is it fair to say it is the preeminent treatise on
18   immigration law?

19        A.     I like to think so.
20        Q.     Just to be clear, how is the treatise used either
21   by counsel or by the courts?

22        A.     Both attorneys and courts will look to the treatise
23   to explain the law so that they can understand it, either to
24   advise their clients or for judges to make their rulings in a
25   case.


 1        Q.     Is it a description of how the law operates, or is

 2   it -- does it contain policy prescriptions as well, or is it
 3   mainly a description?

 4        A.     It is mainly a description of the law.

 5        Q.     Have you ever been retained as an expert before?
 6        A.     Yes, I have.

 7        Q.     Can you just tell us a little bit about your
 8   previous service as an expert?
 9        A.     In the last five years, I have -- in the last four
10   years, I have been retained as an expert five times.    One was

11   in a criminal case.    Two involved expert witness testimony
12   involving people who were undocumented, who were seeking
13   worker compensation claims.     One was a fee case, and another
14   one was a case in Virginia involving immigrants there who
15   wanted to go to public colleges in Virginia.
16        Q.     Have you ever testified in court before?

                                 Page 92
17        A.   Yes.   Once about ten years ago in Canada in a
18   Canadian criminal trial.    The judge there wanted some expert
19   witness testimony about U.S. immigration law.
20        Q.   Are you being compensated for your appearance here
21   today?
22        A.   No.

23        Q.   Have you received any awards?
24        A.   Yes.   From the American Immigration Lawyers
25   Association, I have received two awards.    One is for


 1   excellence in teaching, and one is excellence in the practice
 2   of immigration law.

 3        Q.   And those are noted on your CV as well?

 4        A.   Correct.
 5             MR. JADWAT:    At this point, Your Honor, Plaintiffs

 6   we move to qualify Professor Yale-Loehr as an expert on
 7   Federal immigration law, the acquisition and maintenance of

 8   immigration status, and the operation of the Federal

 9   immigration system.
10             THE COURT:    Thank you.
11                           CROSS EXAMINATION

13        Q.   Good morning.

14        A.   Good morning.
15        Q.   You don't teach Constitutional law, do you?
16        A.   No, I do not.
17        Q.   Is it correct to state that your treatise does not
18   have a full chapter on preemption in immigration law?
19        A.   That is correct.
20        Q.   Would it also be correct that your treatise has

                                Page 93
21   exactly three sentences on preemption defining INA, Section
22   274A?
23        A.    I don't know how many sentences it has.
24        Q.    Does that sound about right?
25        A.    It could be.


 1        Q.    I see that you have taught as an adjunct over the
 2   years.    Have you ever held a position as tenure track law
 3   professor?
 4        A.    No, I didn't want to teach full time.

 5        Q.    I could see why.
 6              Now, you have written a number of updates and

 7   articles, which we just heard about, in the field of

 8   immigration law.
 9              Have you ever written any Law Review articles on

10   the specific topic of local laws that are preempted by
11   Federal Law?

12        A.    No, I have not.

13        Q.    Have you ever written an article that specifically
14   concerns preemption in general in immigration law?

15        A.    I recently wrote a column for the New York Law
16   Journal that discussed preemption issues.   The title of the

17   articles was "Cities and States Rush In Where Congress Fears
18   to Tread."
19        Q.    Where is that in --
20        A.    It just came out last month.   So it is not on this
21   CV, which was submitted in November of 2006.
22        Q.    Have you ever served in the U.S. Department of
23   Justice in an immigration role or the U.S. Department of
24   Homeland Security in an immigration role?

                                  Page 94
25        A.   No.


 1        Q.   Have you served in either of those agencies at all?
 2        A.   No.
 3        Q.   Have you personally ever litigated a constitutional

 4   preemption case?
 5        A.   No.
 6        Q.   In any of your testimony before Congress, have you
 7   ever testified on behalf of or represented in some sense an
 8   organization that was not either the American Immigration

 9   Lawyers Association or an employer association or an
10   association of some alien affiliated organization?

11        A.   I was invited by the Senate to testify in my

12   personal capacity as a law professor.   My expenses were paid
13   by the American Immigration Lawyers Association, but it was

14   not their doing that I got invited.
15        Q.   You mentioned that you have held a number of

16   positions with the American Immigration Lawyers Association.

17             Would it be correct to say that American
18   Immigration Lawyers Association or AILA, as it's commonly

19   referred to, consistently opposes efforts to increase
20   enforcement in the area of immigration law?

21        A.   We want immigration laws to be correctly enforced.
22        Q.   Let me rephrase that.   Is it fair to say AILA
23   consistently opposes bills like HR4437, the so-called
24   Sensenbrenner Bill that would increase the penalties for
25   violating immigration laws?


 1        A.   They did oppose that particular bill, yes.
                              Page 95
 2        Q.   Is it fair to say that AILA was in favor or the

 3   Senate Amnesty last year, Senate Bill 2611?
 4        A.   I wouldn't characterize it as an amnesty bill, but
 5   AILA did support that particular bill.

 6        Q.   Have you ever testified in favor of any limit or
 7   cap on immigration?

 8        A.   Have I ever testified?    No.
 9        Q.   You just claimed a moment ago, and you so state in
10   your resume, that the treatise which you co-author has been
11   cited by Federal courts maybe 400 times, is that correct?
12        A.   Yes.

13        Q.   Is it also correct that the first 346 or so times
14   were before you joined?

15        A.   Probably.    I don't know the count.   I joined in

16   1994.
17        Q.   Could you please share with us any Federal cases

18   where it has been cited on the question of Federal
19   preemption?

20        A.   I don't know of any.

21        Q.   And is it also true that a number of the times it
22   has been cited, it has been cited in dissent or cited by

23   courts who were later reversed on appeal?
24        A.   Probably.

25             MR. KOBACH:    That's all I have.


 1             THE COURT:    We will accept the Professor as an
 2   expert in his field.
 3                    FURTHER DIRECT EXAMINATION
 5        Q.   Just before we move, when was the last time your
                              Page 96
 6   treatise was cited by the Court of Appeals?

 7        A.     Last week, I think.
 8        Q.     I think we will start by talking about immigration
 9   status.    Perhaps we can begin by having you tell us what the

10   different categories of immigration status are under Federal
11   immigration law.

12        A.     There are two sort of broad categories.    People who
13   are here temporarily, we also call them non-immigrants, and
14   then people who are here permanently, and we call them
15   immigrants, and within each of those broad categories we have
16   lots of different distinctions.

17        Q.     So can you give us some examples of what a
18   non-immigrant category would be?

19        A.     Non-immigration consist of millions of people a

20   year who are in the United States legally.    They may come in
21   as tourists.    We often give them letters to describe how we

22   call them because of where they are in the immigration
23   statute.

24               So, for example, tourist are called B2, because

25   that is where they are in the statute.    Foreign students are


 1   called F1, because that is where they are in the statute.
 2   Temporary workers, might be H1B, H2B, H3.     We have exchange
 3   visitors.    They are known as J visitors.   We have
 4   intracompany transferees.    These are people who came in from
 5   another company outside the United States to work in the
 6   United States.    We have outstanding performers in the P
 7   category, extraordinary aliens in the O category.      So it goes
 8   on and on and on, on that side of the equation.
 9        Q.     Those letters that you mentioned are all
                                Page 97
10   subsections of some sort of the Immigration Act?

11        A.   Yes.   They all come from 8 U.S.C., Section
12   1101(a)15, and then it goes A down through V.
13        Q.   Then you say there is another major category, which

14   is immigrant -- people in an immigrant status?
15        A.   Correct.   Those are people who are here legally

16   permanently.   They are allowed to reside permanently in the
17   United States.
18             Again, a variety of people come into the United
19   States initially permanently, or they may change their status
20   coming temporarily, and then being allowed to stay here

21   permanently.
22             Within that permanent category, we have people who

23   come and get green cards based on their family relationships,

24   based on their employment characteristics, based on what we
25   call the diversity green card lottery, or they may win


 1   relief, such as asylum.    The end result is that they all have

 2   what we call green cards, more technically known as lawful,
 3   permanent resident status.
 4        Q.   What about people who aren't in one of those two

 5   broad categories you talked about, people who aren't either
 6   lawful, permanent residents or non-immigrants under the
 7   immigration code?
 8        A.   There is sort of a third category where people do
 9   not have current lawful immigration status.    They may have
10   entered legally, but then overstayed their time in the United
11   States.   They may have come, but have violated their status,
12   for example, by working illegally, or they may have entered
13   the United States without permission initially.
                              Page 98
14        Q.   Do you have a sense of how many people that are

15   like that who are in that third category?
16        A.   The news reports frequently say there are 12
17   million undocumented people in the United States.   Of that

18   number, about half are those who entered illegally initially,
19   and the other half are people who entered legally, but then

20   either overstayed or worked and violated their status.
21        Q.   So is it possible for someone who is in that third
22   category, who doesn't have a current lawful status, to enter
23   into a lawful status?
24        A.   There are a variety of ways by which they may be

25   able to regularize their status.


 1             One example is if a person marries a U.S. citizen,

 2   they can then be classified as an immediate relative, and

 3   that U.S. citizen can petition for them so that they can get
 4   a green card that way.

 5             They may apply for political asylum.

 6             There is a lot of different ways by which someone
 7   can get into legal status.

 8        Q.   So would it be fair to say that everybody in the
 9   category of people who don't currently have a lawful status,

10   are they all illegal?
11        A.   Not necessarily.   I mean, they may not have proper
12   immigration status, but it doesn't mean that they're illegal.
13   It depends on how you define the term illegal.
14        Q.   Well, are they all people who the Federal
15   Government wants to leave the United States?
16        A.   No.   The immigration agency will frequently allow
17   people who don't have a proper immigration status to be in
                              Page 99
18   the United States.

19              For example, if someone is applying for asylum, the
20   immigration agency as a matter of the procedure will not try
21   to kick them out of country while their asylum application is

22   pending.
23              In other cases, the immigration agency for a reason

24   of discretion or humanitarian reasons will say, no, we are
25   not going to start removal proceedings against you.


 1        Q.    So you talked about different kinds of applications
 2   that people might be able to make even when they are out of
 3   status to become -- to be placed in some kind of lawful

 4   status.
 5              Can you just list a few of those types of

 6   applications that are available?

 7        A.    Well, for example, there is adjustment of status,
 8   there's asylum, there's cancellation of removal, there's

 9   temporary protected status, there's VAWA cancellation,

10   there's NACARA cancellation, there's deferred action, there's
11   order of supervision after deportation orders have been

12   issued against you, and I'm sure I'm skipping a lot of
13   others.
14        Q.    So let's just talk about a few of them.   Adjustment
15   of status, what is that?
16        A.    Adjustment of status is under what we call INA,
17   Immigration and Nationality Act Section 245(m) and it says
18   that if you are here legally in some temporary status, you
19   can adjust your status, change your status to become that of
20   a permanent resident.   So basically people who are here
21   lawfully can do that to get their green card.
                              Page 100
22             Even if you are not here lawfully now, but are in a

23   proceeding before an immigration judge, you can adjust your
24   status before an immigration judge.    The people who marry
25   U.S. citizens, for example, can, even though they are here


 1   unlawfully now, can get an adjustment of status before an
 2   immigration judge and get a green card that way.

 3        Q.   Is there a way to apply for adjustment of status
 4   affirmatively if you are here unlawfully?
 5        A.   There is a particular subset of adjustment known as
 6   245(i), which is a particular provision that Congress enacted

 7   back in the 1990s.   It says that we realize a lot of people

 8   are here illegally, and rather than make them go back to
 9   their home country to get a green card, we will let them pay

10   a $1,000 penalty fee to the U.S. Government and allow them to

11   adjust and get their green card in the United States.    It was
12   a way for the government to raise money for the immigration

13   agency.   That 245(i) provision was temporary and it expired

14   April 30, 2001, but hundreds and thousands of people applied
15   before that deadline and not all of them have gotten their

16   green card yet.   So they are still waiting to adjust under
17   245(i).

18        Q.   So there's a large number of people who made these
19   245(i) applications, and who, if the applications were
20   approved, would become lawful, permanent residents?
21        A.   Correct.
22        Q.   But they're still waiting?
23        A.   Still waiting and many of them are not in lawful
24   status today.
25        Q.   So while they are waiting, do they get any kind of
                              Page 101


 1   temporary status?    Do they get put in one of the temporary
 2   visa categories?
 3        A.   No.    The mere fact of applying for a green card

 4   does not give you a status that allows you to remain in the
 5   United States.    So, technically, they are removable because
 6   they are here illegally, but as an administrative matter, the

 7   immigration agency usually will not try to kick them out,
 8   because they see they have this green card application
 9   pending down the road.    So they will say, fine, we will see
10   if you get that.

11        Q.   Can you describe how an asylum application works?

12        A.   Asylum is where you have a well-founded fear of
13   persecution in your home country, and you can apply for that

14   either what we call affirmatively, where you are here

15   lawfully, but you don't want to have to go back to your home
16   country after your student visa or your tourist visa expires,

17   or you can apply defensively where you're in an immigration

18   judge proceedings, you're alleged to be deportable.    You may
19   even admit that you are deportable, you violated our

20   immigration laws, but you have this claim for relief known as
21   asylum, saying, judge, you cannot send me back to my home

22   country because I would face persecution there.
23        Q.   So before someone submits an application for
24   adjustment of status, or for some kind of correction or
25   regularization of their status, does the government have any


 1   way to know that they are going to make that application?

                               Page 102
 2              Is there a record in the government somewhere that
 3   would flag that for them?
 4        A.    No, they don't preregister saying, I plan to apply
 5   for asylum next year.
 6        Q.    And while the application is pending, you said they
 7   don't have any status?

 8        A.    It depends.   If a person is out of status when they
 9   start the asylum process, or they may have started the asylum
10   process while they are in status, but then have fallen out of

11   status then for the remainder of their time that their asylum
12   application is pending, they don't have status.
13              For example is someone who comes in on a tourist
14   visa -- I have a client right now who is from an Asian

15   country, came in on a tourist visa, applied for asylum.   His

16   tourist visa expired, but his asylum application is still
17   pending.

18        Q.    So you talked about some things that people can do

19   when they're here.    Even if they may be out of status, they
20   can apply for certain kinds of methods to regularize their

21   status.

22              Are there any other ways that people can go from
23   being in an unlawful status to being in a lawful immigration

24   status?
25        A.    A cancellation of removal is a large category by


 1   which people can regularize their status before an
 2   immigration judge.
 3        Q.    So that happens in front of an immigration judge?
 4        A.    Correct.
 5        Q.    So are there other things that you can ask for in

                               Page 103
 6   front of an immigration judge that will regularize your
 7   status?
 8        A.   There's the cancellation of removal.   There is
 9   relief under the Convention Against Torture.   There is VAWA
10   relief.   So there is a variety of kinds.
11        Q.   And just to be clear, so these are people who have

12   been put into removal proceedings by the government because
13   the government has alleged they are here unlawfully?
14        A.   Correct.

15        Q.   And once they are put into removal proceedings,
16   they have the opportunity to apply for --
17        A.   Various kinds of relief.
18        Q.   -- various kinds of relief.

19             So even if they are found to be removable, even if

20   they are found in that removal proceeding to have violated
21   their status, they can still stay in the United States?

22        A.   Yes.   If they win relief before the immigration

23   court, they will be allowed to remain in the United States
24   permanently.

25        Q.   You mentioned -- I think you mentioned cancellation


 1   of removal as one of those examples?

 2        A.   Correct.
 3        Q.   What is cancellation of removal?
 4        A.   It's a type of relief that is discretionary with
 5   the immigration judge.   For example, if you are not a
 6   permanent resident already, but you have been here for ten
 7   years continuously and can show good moral character and have
 8   not been convicted of a particularly serious crime, the
 9   immigration judge, in his discretion, will weigh the equities

                              Page 104
10   of you staying here versus the extreme hardship of your
11   family members if you have to leave, and in balancing those
12   equities, will decide whether to grant you this relief known
13   as cancellation of removal.
14        Q.   So somebody who has facts that might entitle them
15   to cancellation of removal, or might result in the grant of

16   cancellation of removal, before their removal proceeding
17   begins, what is their status?
18        A.   They may be here unlawfully, and many times people

19   will ask the immigration agency to put them into proceedings
20   because they want to apply for a particular kind of relief,
21   like asylum or cancellation, but the immigration agency is
22   very busy, understaffed, and so many times people, even

23   though they want to go before an immigration judge, the

24   immigration agency will not issue them a notice to appear,
25   because they are doing other things.


 1        Q.   So just to be clear, there is certain kinds of

 2   relief, certain kinds of ways to regularize your status that
 3   are only available to you after you have been put in removal

 4   proceedings?
 5        A.   Correct.

 6        Q.   Even if the facts that would support that
 7   application are already there at any given time?
 8        A.   Correct.
 9        Q.   If you're in that situation where you would have
10   some kind of opportunity for relief from removal, would you
11   have any document before you go -- would you have any
12   document before the removal proceeding begins that
13   demonstrates that you have that relief available to you?

                             Page 105
14        A.    No.
15        Q.    Would the Federal Government know that you have
16   that relief available to you?
17        A.    No.
18        Q.    Can you give us some other types of examples of
19   relief from removal other than cancellation?

20              MR. KOBACH:    Your Honor, can I just object to the
21   relevance?   Although all of this is interesting, we can all
22   find out by reading the law, and it is not clear where he's

23   going with all these questions about different procedures and
24   different hypotheticals.
25              MR. JADWAT:    We offered the expert on immigration


 1   law, the operation of immigration law, construction and
 2   maintenance of different immigration statuses.

 3              Your Honor has already ruled that you think that
 4   his testimony may be helpful in understanding the complexity

 5   of immigration law in factors relevant to this case.

 6              THE COURT:    Overrule the objection.

 8        Q.    Can you list other categories of relief?
 9        A.    Convention Against Torture relief is another
10   category that can you apply for only before an immigration
11   judge.    It is an international treaty to which the U.S. has

12   signed and basically says that we cannot send someone back to
13   a country where they may be tortured.     Even if they have
14   committed a crime in the United States, if the individual can
15   show the likelihood that they would be tortured in their home
16   country, we are forbidden from sending them back to their
17   home country.    So that's the kind of relief that allows a

                                Page 106
18   person, if they win, to remain in the United States.
19             VAWA, which stands for Violence Against Women Act
20   was another provision enacted by Congress in the 1990s, and
21   it basically said that if you are a battered spouse or child,
22   you can get relief before an immigration judge.   It is
23   another kind of cancellation of removal relief.

24        Q.   You just described various kinds of relief that
25   people can apply -- sorry.   I will start over.


 1             You have described relief that people can apply for
 2   or adjustment in status that people can apply for without
 3   being put into removal proceedings.

 4             You have also described now some examples of relief

 5   from removal that you can apply for during immigration
 6   proceedings.

 7             Once a removal proceeding is completed, if you
 8   don't receive some sort of relief from removal, are you then

 9   at that stage at least finally completely illegal?   I mean,

10   at that stage, does the Federal Government definitely want
11   you out of the country?
12        A.   Not necessarily.   There are a variety of people who

13   may receive certain kinds of relief even after they have been
14   ordered removed from the United States.

15             The clearest example are what we call the Zavydas,
16   Z-A-V-Y-D-A-S, Plaintiffs.   This is a Supreme Court case
17   where the Supreme Court held that we cannot indefinitely
18   detain immigrants if they cannot be sent back to their home
19   country, such as Cuba or Vietnam, and the Court in that case
20   said that if we cannot send them back, then after six months,
21   we have to at least give them a hearing to see whether they

                               Page 107
22   can be or should be released from immigration detention.
23             So several thousand people, even though they have
24   been formally ordered removed, gone through all their
25   judicial review, still nevertheless are in the United States.


 1        Q.   So those people are actually released from
 2   immigration detention?
 3        A.   Yes, they can be.   We also have orders of
 4   supervision issued by the immigration agency under people who
 5   have been ordered release for discretionary reasons and

 6   humanitarian reasons who nevertheless will not be sent back
 7   to their home country.   That is another kind of relief.

 8   Those people can apply, once they're released, for a work

 9   permit so they can work in the United States.
10        Q.   These are all people would have been ordered

11   removed from the United States, and therefore have no legal
12   right to live here under the immigration law?

13        A.   Correct.

14        Q.   But who the Federal Government has decided or may
15   be under the law required to allow them to live within the

16   borders of the United States?
17        A.   Correct.

18        Q.   Are there other sorts of discretionary decisions by
19   the Department of Homeland Security that might result in
20   someone who's currently not in a lawful status still being
21   allowed to live in the United States?
22        A.   Yes.   For example, there is something known as
23   deferred action in which the immigration agency says, we will
24   defer the start or delay the start of immigration proceedings
25   against you for humanitarian reasons.

                              Page 108

 1             So if someone is in the United States illegally and
 2   caring for a loved one who is very sick, the immigration

 3   agency for humanitarian reasons may decide, no, we're not
 4   going to start immigration proceedings against you.      That

 5   grant of deferred action does not mean that you have an
 6   immigration status.   You can apply for a work permit, but you
 7   don't have a status to remain here.
 8             Similarly, there is another concept known as
 9   voluntary departure, and again, either the immigration agency

10   before removal proceedings begin or an immigration judge at
11   the end of the immigration proceedings can grant you

12   voluntary departure, which means that you have a certain

13   amount of time in which you can voluntarily leave the United
14   States.   That is a recognition that you can be in the United

15   States for that limited amount of time, even though you don't
16   have any real immigration status in the normal sense.

17        Q.   And typically how long is the period that is

18   granted for voluntary?
19        A.   The regulations allow the immigration agency to

20   grant voluntary departure for up to 120 days, four months
21   before removal proceedings start.      An immigration judge, if

22   he or she wants to grant voluntary departure at the end of
23   immigration proceedings, can grant it for up to 60 days.
24        Q.   So just to recap, you have described situations
25   where people who are otherwise in an unlawful status might


 1   either, before the beginning of immigration removal
 2   proceedings, during removal proceedings, or even after having
                              Page 109
 3   been found removable, still have the right or be permitted to

 4   live in the United States?
 5        A.   Correct, and many times they can also apply for a
 6   work permit at the same time.

 7        Q.   So your current legal status at any given time does
 8   not entirely determine whether, in fact, you will be allowed

 9   to continue to remain in the United States.    There are other
10   factors that go into it as well?
11        A.   Correct.    You may be here legally today, but your
12   status may expire tomorrow, or conversely, you may be here
13   not in any immigration status today, but through one of these

14   things we discussed, you may regularize your status tomorrow.
15        Q.   You have mentioned work permits a couple of times.

16   What is the relationship between work authorization and

17   immigration status?
18        A.   There are two separate concepts.    They overlap, but

19   they are not identical.    Only an immigration judge in an
20   immigration proceeding can determine your immigration status

21   once and for all.

22             The immigration agency has a responsibility under
23   our immigration laws to determine who is authorized to work.

24   But you may be authorized to work, but not have a proper
25   immigration status.    You may have a proper immigration


 1   status, but not be authorized to work.    For example, if I'm
 2   tourist going to Disney World, I'm authorized to be in the
 3   United States, but I cannot get a work permit.
 4             If I'm an asylum applicant, I may be out of status,
 5   but I qualify for a work permit if my application for asylum
 6   is unadjudicated for more than six months.
                              Page 110
 7             MR. JADWAT:    I don't know if you are interested in

 8   breaking for lunch now.
 9             THE COURT:    Yes.   Very good.    We will recess until
10   1:30.

11             (At this time, a luncheon recess was taken.)

13        Q.   We were talking about immigration status, and you
14   said your status does not necessarily mean whether you would
15   be allowed to live in the country by the Federal Government?
16        A.   Correct.
17        Q.   There may not be documents that establish it, and

18   that is because there are various kinds of ways that people
19   can regularize their status either before, during or after

20   being put into deportation or removal proceedings by the

21   Federal Government?
22        A.   Correct.

23        Q.   There may not be a document that demonstrates your
24   entitlement to some sort of relief or some way to regularize

25   your status?


 1        A.   Correct.

 2        Q.   And until the Federal Government actually goes
 3   through those proceedings, even the Federal Government
 4   doesn't know whether any particular person might have a claim
 5   for relief?
 6        A.   Correct.
 7        Q.   So when people say illegal is illegal, does that
 8   capture the way that immigration status actually works?
 9        A.   That is too simplistic.       Immigration law is very
10   complex and people may have a lawful status today, but fall
                              Page 111
11   out of status tomorrow, and they may not have a proper

12   immigration status today, but be eligible for some kind of
13   status tomorrow.
14        Q.    And they may actually be eligible for that status

15   today, but not have gone through whatever procedure they need
16   to obtain that status?

17        A.    Correct.   They may actually be in the middle of the
18   process but not have a document indicating they are applying
19   for that status.
20        Q.    Approximately what is the range of time it might
21   take to regularize your status, assuming that you're eligible

22   for one of these kinds of relief or adjustment or one of
23   these other procedures that you were talking about, roughly

24   what is the range that it can take somebody from the time

25   that they ask for that status to the time that they actually


 1   become put into a lawful status?

 2        A.    It depends on a lot of variables, but it can vary

 3   from six months to several years.      The calculations that go
 4   into that determination depend on how long it takes for the
 5   immigration court to schedule a hearing, how long it takes to

 6   have the hearing before the immigration judge.
 7              If the person then appeals administratively to the
 8   board of immigration appeals in Washington D.C., that can
 9   take several months or a year, and from there you can go up
10   to Federal Court and have more time involved in the entire
11   process.
12        Q.    And even for some of these applications that are
13   just processed administratively, it can also take a long
14   time, correct?
                               Page 112
15        A.     Correct.   For example, adjustment of status, if

16   you're doing that before the agency because you are here
17   illegally now, that may take several months, up to a year
18   simple because of processing delays by the immigration agency

19   itself.
20        Q.     Now, I would just like to ask you a few questions

21   about definitions in immigration law, how they operate.
22               How does the Immigration and Nationality Act --
23   that is the main statute for immigration law?
24        A.     Correct.
25        Q.     And that is at 8 U.S.C. 1101 and following


 1   sections?
 2        A.     Correct.

 3        Q.     How does the INA define an illegal alien?

 4        A.     It uses the term, but it doesn't define illegal
 5   alien in the statute itself.

 6        Q.     What context does it use the term illegal alien?

 7        A.     It uses it, if I recall correctly, in three
 8   provisions, two of which relate to reimbursing states for

 9   people who are detained and another one -- I forget what the
10   third one is.

11        Q.     There is no general definition in the definition
12   section, for example?
13        A.     No, there is no general definition of illegal alien
14   as a phrase of art.
15        Q.     How does the INA define being lawfully present in
16   the United States?
17        A.     Again, there is no general definition of lawfully
18   present in the Immigration and Nationality Act.    Various
                              Page 113
19   regulations use the term without defining it.

20             There is one definition in 8 Code of Federal
21   Regulations -- I think it is 103.12(a) -- that is specific
22   toward applying for public benefits through the Social

23   Security system.   You have to be a qualified alien and have
24   to be lawfully present for that purpose.

25             That regulation says that that definition is only


 1   for that purpose of public benefits.

 2        Q.   And what about being unlawfully present, is that a
 3   phrase that is used or defined in the INA?
 4        A.   The term unlawful presence is a term of art that

 5   was enacted by Congress in 1996, and that is used in the
 6   context of determining whether someone is inadmissible, or

 7   barring their entry to the United States, and it's used in

 8   that particular purpose, and that phrase, unlawful presence,
 9   is not the inverse of lawful presence.

10             A person, for example, may be both unlawfully

11   present, but have lawful presence.    Someone, for example, may
12   apply for asylum while they are here as a tourist, and if

13   they stay after their tourist visa expires, they are
14   unlawfully present, but they still have a claim of asylum
15   which will then allow them to remain in the United States.
16        Q.   So the question of whether you are unlawfully
17   present according to that section of the INA is not the same
18   question as to whether you can live in the country according
19   to the Federal Government?
20        A.   Correct.
21        Q.   Finally, what does the phrase lawful resident mean
22   in the context of the Federal Immigration Law?
                              Page 114
23        A.   There is no exact definition for the term lawful

24   resident, those two words in the immigration statute.     The
25   closest thing is in the Immigration and Nationality Act


 1   Section 101(a)20, which is codified at 8 U.S. Code, Section
 2   1101(a)(20), which basically says if you are lawfully
 3   admitted for permanent residence, then you are allowed to be

 4   in the United States permanently.     So that is the closest
 5   analogy to what the statute says.
 6        Q.   And that's only one of the two broad categories of
 7   immigration status that we talked about at the beginning?

 8        A.   Correct.   That is the permanent side and there are

 9   millions of people who are lawfully in the United States on
10   temporary visa; students, tourists, temporary workers, et

11   cetera.   They are also lawfully admitted, but they are not

12   lawfully admitted for permanent residence under the
13   definition that I just mentioned.

14        Q.   And would the phrase lawful residency mean anything

15   in particular in the context of the immigration code?
16        A.   Not in terms of the statute.     As sort of a

17   shorthand, many people think if you are a lawful resident,
18   then you have a green card.   Again, a green card is a

19   shorthand, too, but we don't define lawful residence per se.
20        Q.   Finally I would like to talk a little bit about the
21   way that one determines one's status or somebody else's
22   status in the immigration system.
23             How does the Federal Government decide whether or
24   not someone should leave the country?
25        A.   It is a complicated process.     The immigration

                              Page 115

 1   agency will first do an investigation to determine whether
 2   someone is alleged to be here unlawfully and they may do
 3   that through their own investigation.
 4             THE COURT:   Excuse me.    What are we talking about?

 5   What was the question?   Would you repeat it?
 7        Q.   The question is, how does the Federal Government

 8   decide whether someone should leave the country?
 9        A.   The process is that the immigration agency starts
10   by doing some kind of investigation.    They may receive a tip.
11   They may do their own investigation.

12             If they believe a person has violated our

13   immigration laws or is not in lawful status here, they bring
14   what is known as an NTA, notice to appear.    It means you have

15   to appear before an immigration judge.    It is similar to an

16   indictment in a criminal case.   That is an allegation by the
17   government.   It is not proof.

18             Both the Constitution and the immigration statute

19   have requirements to make sure that the procedures before the
20   immigration judge comply with due process.    So, for

21   example --
22        Q.   Maybe I can just ask you a question there.

23             The immigration judge, what part of the government
24   does the immigration judge reside in?
25        A.   The immigration judge is an employee of the


 1   Department of Justice.
 2        Q.   And the prosecuting authority are the people that

                               Page 116
 3   bring the notice to appear in the first place?
 4        A.     Are officials of the Department of Homeland
 5   Security.    So they're two different Cabinet agencies.
 6        Q.     If you could go ahead and explain.   I cut you off a
 7   little bit, and I apologize for that.
 8        A.     Once a notice to appear has been issued by the

 9   Department of Homeland Security, then there's a hearing
10   before an immigration judge.
11               The individual has to have the right to have an

12   attorney at no expense to the government.    There has to be
13   proper interpretation, if the person does not speak English.
14   The government has the burden of proof to show by clear and
15   convincing evidence that the individual indeed is not

16   authorized to be in the United States.

17               The judge will hear testimony, both from the
18   government witnesses and from the individual, written

19   documentation, and at the end of that process, then the judge

20   will make a determination as to whether indeed someone is not
21   lawfully in the United States.    That's not the end of the

22   process, though.

23        Q.     We will talk about that in a second, but just to be
24   clear, this proceeding before an immigration judge is called

25   a removal proceeding?


 1        A.     Correct.
 2        Q.     Colloquially sometimes referred to as a deportation
 3   hearing maybe?
 4        A.     Correct.
 5        Q.     That procedure involves more -- well, is a person's
 6   immigration documentation the only evidence that would go in,

                               Page 117
 7   in such a proceeding?
 8        A.   No.    In addition to whatever documentation the
 9   government may have, the individual may have documentation of
10   establishing their right to be in the United States.    There
11   is also the ability to have oral testimony by the individual
12   or by the government.

13             So there is a variety of information that is
14   brought to the attention of the immigration judge before the
15   judge will make a decision.

16        Q.   So this is a very different procedure than just a
17   phone call or a computer inquiry and a five second or
18   10-minute response?
19        A.   Absolutely.    Many of these hearings can go on for

20   several hours.

21        Q.   You said that even after the judge makes his or her
22   decision, that is not the end of the story.    Can you explain?

23        A.   Correct.    If the individual wants to appeal that

24   decision of the immigration judge, they can appeal
25   administratively to the Board of Immigration Appeals, which


 1   is an administrative appeals branch of the Department of
 2   Justice in Washington, D.C.

 3             Then, if they want to appeal further, they can go
 4   to Federal Courts of Appeals and ultimately to the U.S.
 5   Supreme Court.
 6        Q.   Approximately how long does each stage of that
 7   process take?    Let's start with the proceeding in front of
 8   the immigration judge.
 9             From the time the notice to appear is issued to the
10   time that the immigration judge makes his or her decision,

                               Page 118
11   how long could that take?
12        A.   That could take months or even more than a year,
13   depending on the backlog in the particular immigration court.
14        Q.   Where do people live while their immigration
15   proceedings are ongoing?
16        A.   Generally they remain in their communities.    If the

17   immigration agency feels that they are a risk to our society,
18   then they may detain them, but many people are not deemed to
19   be such a risk, so they are allowed to be living in the

20   United States until they have their hearing before an
21   immigration judge.
22        Q.   So after that immigration judge proceeding, which
23   you said might take, I think you said, six months to a year,

24   you said there's an administrative appeal available?

25        A.   Correct.


 1        Q.   Typically how long could that take?

 2        A.   Again, it depends on the backlog of the Board of

 3   Immigration Appeals.   They prioritize their cases depending
 4   on whether the person is a criminal, for example, or not.    So

 5   it can take six months or longer for the Board of Immigration
 6   Appeals process to conclude.

 7        Q.   And then if the person were to seek -- the
 8   immigrant were to seek further review in the Federal Courts,
 9   how long would that process last?
10        A.   Again, it depends on the backlogs of the Federal
11   Courts of Appeals, but it can easily take another six months
12   or year or longer depending on how long that particular court
13   is backlogged.
14        Q.   So it could conceivably take, I think, three years,

                                Page 119
15   based on the figures you have given us for the whole process
16   to go -- to be completed?
17        A.   Yes.
18        Q.   And during that whole process, many people are
19   allowed to live in the United States while the proceedings
20   are ongoing?

21        A.   Correct.
22        Q.   Do you have any personal experience with how long
23   these proceedings might take?   Have you had any experience

24   with your clients that might give us a sense?
25        A.   Not that I can recall right now.    I have people who


 1   are in various stages, but not one from start to finish that

 2   I can say, that case took "X" amount of time.
 3        Q.   Under the immigration law, is there any time that

 4   someone could be removed, ordered to leave the country
 5   without going through a removal proceeding?

 6        A.   Yes.   We have one aspect of our law.   It is called

 7   expedited removal.   That is the process set up by Congress in
 8   1996 that says if you come to our borders or within 100 miles

 9   of our borders with either fraudulent documents or no
10   documents, then you don't necessarily have to go before an

11   immigration judge.
12             The immigration inspector at the port of entry can
13   make a determination that you should be removed expeditiously
14   without going before an immigration judge.
15             However, if the individual says, well, I think that
16   I am really a U.S. citizen, or the individual says, I have a
17   fear of persecution, then they do have the right to have an
18   immigration judge make the final determination.

                              Page 120
19         Q.    Is that expedited removal procedure available to
20   the government with respect to someone who's living in
21   Northeastern Pennsylvania?
22         A.    No.   As far as I know, Hazleton is more than 100
23   miles from our borders.
24         Q.    Are you familiar with the immigration related

25   provisions of the PROWARA -- I'm not going to try to --


 1         A.    Personal responsibility and something, something
 2   act of 1996.
 3         Q.    Commonly also known as the Welfare Reform Act of
 4   96?

 5         A.    I'm a little bit familiar with that.

 6         Q.    Briefly what do those provisions establish in terms
 7   of eligibility for State and local benefits?

 8         A.    It says generally that most people who are not
 9   citizens of United States cannot get public benefits unless

10   they are what is called a qualified alien or non-immigrant.

11   So you have to meet certain requirements to get public
12   benefits.
13         Q.    Is the question of whether you meet the

14   requirements to get benefits under that act, is that the same
15   question as whether you can live in the country lawfully?

16         A.    No, it is a different determination.   That law sets
17   up a different procedure to determine their eligibility for
18   public benefits.     That is not the same legal test as to
19   whether you are allowed to be in the United States.
20               So some people, like tourists, for example, may
21   have a lawful status in the United States, but they are not
22   going to be eligible for public benefits under that 1996

                                Page 121
23   welfare law.
24        Q.   For Federal public benefits?
25        A.   For Federal public benefits.


 1        Q.   Finally, you're an experienced immigration lawyer,
 2   you're a professor of immigration law.       If someone comes to
 3   you, can you determine their immigration status?

 4        A.   Not -- I can't do a final determination.      Only an
 5   immigration judge can do that.    For me to make a
 6   determination as to whether someone is lawful in the United

 7   States is a complex process.
 8             Our law firm, for example, has a 10-page

 9   questionnaire that we ask new clients to fill out so we can

10   get some background about them.       Then we typically will do a
11   45-minute or an hour-long consultation to get all of the

12   facts from them orally, as well as the written documents,
13   before we will come up with an idea of what their status is,

14   and if they are not in proper status now, what avenues for

15   relief they might have.
16        Q.   Is that a question that you could determine based

17   solely on somebody's immigration documents?
18        A.   If I wanted to commit malpractice, yeah.

19        Q.   Is it a question that you could answer -- well, I
20   will withdraw that.
21             MR. JADWAT:   We have nothing further.
22                     FURTHER CROSS EXAMINATION
24        Q.   Good afternoon.
25        A.   Good afternoon.

                                Page 122

 1        Q.   Earlier I mentioned some of the Federal cases that
 2   cited your treatise, and I asked if you knew of any that
 3   cited your treatise at the district court level and then were

 4   subsequently reversed.
 5             I just want to ask you about a specific one.    Are

 6   you familiar with the case of United States versus Atandi in
 7   which the treatise was cited at the district level?
 8        A.   No.
 9        Q.   Would you be surprised to learn that in the Atandi
10   case which came out of Utah, the trial judge dismissed an

11   indictment against an alien student citing your treatise for
12   the proposition that unlawful immigration status is not

13   triggered by a status violation alone, but then the Tenth

14   Circuit reversed the trial court on that precise question,
15   were you aware of that?

16        A.   I don't recall that.
17        Q.   You told us about your theory that a person is not

18   illegal or is not conclusively illegal until an immigration

19   judge and, indeed, the appellate levels of review after that
20   determine that he is conclusively illegal and not eligible

21   for relief, right?
22        A.   That is not just my theory.   I mean, the

23   immigration agency has said itself in 2000 that a
24   determination, for example, of SAVE, the Systematic Alien
25   Verification for Entitlements is a verification only for that


 1   purpose, and that person has to go through a administrative
 2   process to determine their status in the United States.
 3        Q.   Wasn't that a statement in -- that was published in
                              Page 123
 4   the Federal Register -- a statement to the Federal agencies

 5   using SAVE?
 6        A.   Correct.
 7        Q.   Back to the argument, we will call it that, that a

 8   person is not illegal until an immigration judge finally says
 9   he is illegal.

10             Are you aware on appeal in the Atandi case, the
11   Tenth said that an alien who is only permitted to remain in
12   the United States for the duration of his or her status
13   becomes illegally or unlawfully in the United States upon
14   commission of a status violation, end quote?

15        A.   I don't recall that.
16        Q.   That would be in disagreement with your view, would

17   it not?

18        A.   I guess so.
19             MR. KOBACH:   Just for the Court's reference, that

20   is 376 F.3d 1186.

22        Q.   Are you aware that not only the Tenth Circuit in

23   Atandi, but also the Fifth Circuit in Igbatayo, and the
24   Eighth Circuit in Bazargan also reached the same conclusion?

25        A.   I don't recall those cases.


 1             MR. KOBACH:   For the Court's reference, the
 2   Igbatayo case is 764 F.2d 1039.   The Bazargan case is 992
 3   F.2d 844 at Page 847.
 5        Q.   In your biography you mention your expert testimony
 6   in the case of -- the 2004 case of Equal Access Education
 7   versus Merton in the Eastern District of Virginia, do you
                              Page 124
 8   recall that?

 9        A.     Yes.
10        Q.     Didn't Judge Ellis in the Eastern District of
11   Virginia expressly reject your affidavit and a number of

12   others and hold that Plaintiffs were wrong to introduce those
13   as expert testimony?

14        A.     I don't recall that.
15        Q.     Well, does this sound familiar from the judge's
16   opinion, "While the Court read and considered the affidavits,
17   it viewed these expert opinions solely as additional argument
18   of Plaintiff's counsel, as expert testimony on the proper

19   interpretation of domestic law is inappropriate"?
20        A.     If you say so.

21        Q.     That is from Page 662, Footnote 12.

22               THE COURT:    What circuit is that?
23               MR. KOBACH:    That is the Eastern District of

24   Virginia.
25               THE COURT:    District court?


 1               MR. KOBACH:    Yes, district court.

 3        Q.     Isn't it also true that Judge Ellis in the Merton
 4   continue case rejected your academic argument, shall we call
 5   it, and concluded that when the State uses standards to
 6   classify an alien as illegal, and those standards mirror
 7   Federal Law, there is no cognizable injury to the alien?
 8        A.     I don't remember that quote, but if you're quoting,
 9   then that is what he said.
10        Q.     Yes, I am.    It's at 325 F.supp 2d 661.
11               Isn't it true that Judge Ellis in Merton also
                                Page 125
12   rejected your theory that you advance in your treaty about

13   unlawful presence, do you recall that?
14        A.    No, I don't.
15        Q.    Would this be a rejection of your treaty, "An alien

16   is deemed unlawfully present in the United States if present
17   after the expiration of a period of stay authorized by the

18   attorney general or present in the United States without
19   being admitted or paroled ."    Would that be --
20        A.    That's not a rejection of my statement.   That comes
21   right from the definition of unlawful presence at INA Section
22   212(a)9.

23        Q.    If the Court were to conclude that an alien may be
24   deemed unlawfully present at that point in time , which in

25   the larger context of the case the Court does, and that one


 1   need not wait until an immigration judge has ruled, wouldn't
 2   that be contrary to your view?

 3        A.    Two parts to that answer.    One is that would be the

 4   definition of unlawful presence, which, again, as I mentioned
 5   before, goes to the issue of inadmissibility and does not go
 6   to the larger question of someone's overall immigration

 7   status in the United States.
 8              Second, the Immigration and Naturalization Service
 9   in 1997, when it came out with its interpretation of what the
10   statutory term of unlawful presence means, said that it has
11   to be either you have stayed in the United States after a
12   dated certain visa, like a tourist visa where you have a
13   specific date ending, or you have a formal determining by the
14   agency or immigration judge.
15        Q.    Sticking with the Merton case one more time, isn't
                               Page 126
16   it also true that the Federal judge in Merton rejected your

17   argument that only an immigration judge can make a final
18   determination of an individual's immigration status and
19   rejected the idea that the INA precludes states and by

20   extension localities for making such determinations?
21        A.     I haven't read the opinion again.

22        Q.     Would this be in contrast to your views, "This
23   regulation merely outlines the responsibilities of the office
24   enforcement.    It does not preclude State institutions from
25   using Federal standards to deny admission to illegal aliens."


 1   Would that be contrary to your view?

 2        A.     Again, that Merton case was in the context of
 3   whether someone was eligible to go to a public college in

 4   Virginia.    That is not the same issue as in this case.

 5        Q.     Isn't it true that the policy at issue in Merton
 6   was a State policy to bar illegal aliens from attending the

 7   university in that State, at public institutions?

 8        A.     Correct.
 9        Q.     So wouldn't you say that, too, is an example of a

10   or locality attempting to define who is legal and who is
11   illegal and to deny benefits to the latter category?
12        A.     Correct.
13               MR. KOBACH:   Just for the Court's reference, that
14   quote was from 305 F.supp 2d 585 at Page 604.
16        Q.     Did you write an article in 2002 entitled
17   "Documentation and Travel Tips for Immigrants after September
18   11th"?
19        A.     I don't explicitly recall.   Where was it published?
                                Page 127
20        Q.    Volume 7, No. 1 of the Bender's Immigration

21   Bulletin, Page 1?
22        A.    Okay.
23        Q.    Do you remember writing this in that article, "The

24   INA requires every non-citizen over the age of 18 at all
25   times to carry with him and have in his possession any


 1   certificate of alien registration or alien registration
 2   receipt card issued to him"?
 3        A.    I don't remember that precise sentence, but I
 4   believe that comes from the statute at INA Section 265.

 5        Q.    Well, does this also sound like a quote from that

 6   same article, "The regulations at 8 CFR 264.1 set out what
 7   registration forms are required according to the non-citizen

 8   status"?

 9        A.    Could be.
10        Q.    Do you think you might have also written in that

11   same article, "Another provision requires all non-citizens to

12   notify the INS of their new address within ten days after
13   they move"?

14        A.    I don't remember the quote, but that seems to be an
15   accurate reflection of INA Section 265.
16        Q.    So is it fair to say that immigration law and
17   regulations require non-citizen or aliens in the United
18   States to carry with them some form of documentation at all
19   times?
20        A.    Yes.
21        Q.    So in 2002 you write that all aliens should have
22   documentation -- all aliens are required by Federal Law to
23   have documentation and Federal regulations to have
                              Page 128
24   documentation, but in 2007, you suggest to the Court that it

25   is it difficult for an alien to produce such documentation


 1   when registering for an apartment in Hazleton?

 2        A.    They may not have it.
 3        Q.    If they don't have it, is it fair to say that the
 4   Federal Government will have a record of every person in

 5   every possible legal category, that is to say, visa holders,
 6   non-immigrants visa holders, immigrants, LPR, lawful
 7   permanent resident status individuals, and people who have
 8   been granted various forms of relief that you outlined

 9   earlier?

10        A.    They won't have a record of every non-citizen in
11   the country because some people don't have it.

12        Q.    They will have a record of all the citizens who are

13   legally in one of those categories, won't they?
14        A.    Yes.

15        Q.    So if the determination is left to the Federal

16   Government as to whether an alien is in one of those legal
17   categories, then is there any reason why a State or local

18   government would need to get into the minutia of determining
19   exactly which category it is?

20        A.    Again, what the Federal Government would have would
21   not be complete.   For example, if someone is in the process
22   of applying for asylum, the Federal Government; A, may not
23   know that; or B, may only know they have an application for
24   asylum pending.    It doesn't mean that the Federal Government
25   or State or local government can determine what their current


                               Page 129

 1   immigration status is.
 2        Q.    An application for asylum doesn't entitle one to
 3   asylum in and of itself, does it?
 4        A.    No, it does not.
 5        Q.    It doesn't entitle one to stay lawfully in the

 6   country either, does it?
 7        A.    No, it does not, but you can get a work permit to
 8   work.

 9        Q.    If the Court authorizes it?
10        A.    No.   After 180 days, as long as you have a valid
11   non-frivolous asylum application, you automatically are
12   entitled to it.

13        Q.    Who decides whether it is non-frivolous or not?

14        A.    The immigration judge will.
15        Q.    We talked a little bit about terminology and

16   opposing counsel questioned you about the terms and their

17   definitions, illegal alien, alien unlawfully present in the
18   United States.

19              In your Merton affidavit, the affidavit for the

20   Merton case, you use the term undocumented immigrant quite
21   frequently, is that correct?    Does that sound right?

22              Can you name a single place in Federal immigration
23   statutes or regulations where the term undocumented immigrant

24   appears?
25        A.    No.


 1        Q.    You're the editor or have been an editor of
 2   Interpreter Releases, as you described in your resume as an
 3   authority in its field frequently cited by Courts and

                                Page 130
 4   scholars.
 5               Isn't it true that you use terms undocumented
 6   immigrant and illegal alien interchangeably in that writer?
 7        A.     I do use both terms when I was editor, yes, as a
 8   shorthand for describing a complex topic.
 9        Q.     Yet you claim that the term illegal alien is not

10   precisely defined, even though it is used in Federal Law at
11   least three times?
12        A.     Correct.

13        Q.     Would you like to venture a guess as to how many
14   reported cases of the courts of the United States have used
15   the term illegal alien?
16        A.     I have no idea.

17        Q.     Would it surprise you if it were over 3,000

18   according to Lexis-Nexis?
19        A.     If you say so.

20        Q.     Do you have any idea how many reported Federal

21   cases use the complete term unlawfully present in the United
22   States?

23        A.     No, I do not.

24        Q.     Would it surprise you if that were 191 cases in
25   Federal cases alone?


 1        A.     No.
 2        Q.     So is your objection to the terms the fact that --
 3   let me make sure I understand that.       Is your objection to the
 4   terms the fact that there isn't a provision of Federal Law
 5   defining them precisely, rather than they are not the terms
 6   used by the Federal Law?
 7        A.     Could you repeat the question?

                                  Page 131
 8        Q.   You don't object to the term because they are not
 9   found in Federal Law, because they are found in Federal Law?
10        A.   Which terms are we talking about?
11        Q.   Illegal alien and alien unlawfully present in the
12   United States.
13        A.   The terminal alien unlawfully present in the United

14   States, I can't recall.   Is that used in the Immigration and
15   Nationality Act itself?
16        Q.   Yes, a number of times.    In fact, more often than

17   illegal alien.
18             So your objection then, if I understand it, is that
19   these terms, there isn't a precise definition anywhere in the
20   act for the terms, is that correct?

21        A.   That is what I stated.

22        Q.   Is there a definition in Federal Law for the term
23   you frequently use, undocumented immigrant?

24        A.   No.

25        Q.   That doesn't appear in Federal Law, does it?


 1             You gave us some examples of aliens whose status

 2   would go from unlawfully present in the United States to
 3   lawfully present in the United States, typically after being

 4   afforded relief by an immigration judge.
 5             I think there was an implication that maybe at some
 6   point an alien could be both lawfully present and unlawfully
 7   present at the same time.   You're not saying that, are you?
 8             You're saying that an alien has one status, and
 9   then may transfer to another, is that correct?
10        A.   It gets a little more complex than that.
11             For example, a foreign student comes to the United

                               Page 132
12   States, goes to Cornell University, is in lawful status.    If
13   that person works without authorization, you may think that
14   they have unlawful presence, but the way the Immigration and
15   Nationality Service has defined the term, they don't yet have
16   unlawful presence, because there has been no determination
17   made that because they have worked illegally, they are now

18   unlawfully present as that term of art is used.
19             So, in one sense they are unlawfully present, and
20   in the other sense, if you look at their documents, they have

21   perfect lawful status.
22        Q.   So, again, that example would be premised on the
23   idea of a person's real status not emerging until an
24   immigration judge looks at the case, is that correct?

25        A.   Correct.


 1        Q.   That's the presumption that was rejected by the
 2   Tenth, Fifth and Eighth Circuits, correct?

 3        A.   If you say so.

 4        Q.   I know your treatise doesn't talk a lot about
 5   preemption, but you do -- the three sentences that do exist

 6   in the treatise refer expressly to 274A -- INA section 274A
 7   or 1324A of Title 8 of the U.S. Code, and you do mention this

 8   statement, "An exception is made for licensing and similar
 9   laws."
10             The exception to which you refer is the exception
11   to the broader expressed preemption of State laws that impose
12   criminal penalties on employers.
13             Would you agree that States are free, expressly
14   free to impose licensing and similar sanctions on employers?
15        A.   I haven't done any research on that issue in a long

                                Page 133
16   time, so I would have to go back and look at the case law on
17   that.
18        Q.   The third sentence in your treatise talks about the
19   De Canas versus Bica precedent of the U.S. Supreme Court.
20   Are you familiar with that precedent?
21        A.   Vaguely, yes.

22        Q.   Would you know the three tests for immigration
23   preemption that the Bica court refers to?
24        A.   If I remember, they are express, implied and

25   conflict preemption, maybe field might be an alternative.


 1        Q.   That is pretty close.

 2             If I refresh your memory, would you agree it would

 3   be statute that regulates immigration, a recognition that the
 4   State laws have been displaced from the field, or third

 5   conflict preemption, does that sound correct?
 6        A.   That seems correct, but I haven't reread the case

 7   in a long time.

 8             MR. JADWAT:    Objection, Your Honor.   This is well
 9   beyond the scope of direct.    We didn't talk about preemption

10   at all in his direct examination.
11             THE COURT:    Overrule the objection.   He's an

12   expert.   He has been qualified as an expert.     I'm not going
13   to confine the cross examination to particular areas.
15        Q.   Again, feel free to say you don't know, if you feel
16   you haven't done much research in preemption since then.
17             Do you know of any Federal court cases since De
18   Canas was handed down by the Supreme Court in 1976 where a
19   U.S. District Court or a U.S. Circuit Court found that a

                               Page 134
20   State law penalizing or in some way disadvantaging illegal
21   aliens was found to be preempted?
22         A.    Well, there were those California proposition 187
23   cases, the Wilson cases.
24         Q.    LULAC v. Wilson, right.
25         A.    But, you know, I remember the names, but I haven't


 1   reread the cases in a long time.

 2         Q.    Would it surprise you to learn that in the first
 3   LULAC case, the District Court in California held that where
 4   the State imposed its own classifications, the State was
 5   preempted, but in the second LULAC case, the court said if

 6   the State relies on the SAVE System, they are not preempted

 7   ed?
 8         A.    I would have to go back and reread the decision.

 9         Q.    Do you remember what the decision was by the U.S.
10   District Court in the Merton case, did they find preemption?

11         A.    They did not, as far as I recall.

12         Q.    Is it correct that that was a situation where the
13   State was identifying illegal aliens and then putting them in
14   a disfavored position?

15         A.    I would have to reread the decision.
16         Q.    Are you familiar with the District of Arizona case

17   in Friendly House versus Napolitano?
18         A.    I'm not familiar with that case.
19         Q.    Would it surprise you to learn that in that case,
20   the district court found no preemption of a State Law that
21   disadvantaged illegal aliens in the receiving of State
22   benefits?
23         A.    If you say so.

                                  Page 135
24        Q.    Are you familiar with the Incalza versus Fendi case
25   that came down two weeks ago in the Ninth Circuit?


 1        A.    No, I'm not.
 2        Q.    Would it surprise you to learn that in that case,

 3   the Ninth Circuit found that a State employer law was not
 4   preempted by the employment provisions of the IRCA,
 5   Immigration Reform and Control Act?
 6        A.    If you say so.
 7        Q.    You mentioned a few examples of people receiving

 8   relief while they're before the immigration courts, and one
 9   example you gave, and I will just pick one of several of

10   those, TPS, temporary protected status.

11              Just for the information of everybody in the
12   courtroom, temporary protective status might apply in a case

13   of a person's home country experiencing a civil war, is that
14   correct?

15        A.    Yes.

16        Q.    And during that time of the civil war until the
17   executive branch of the U.S. Government decides that the

18   conflict is still too hot for the person to go home, the
19   individual is allowed to stay in the United States, correct?

20        A.    Correct.
21        Q.    Is a person who is under temporary protected
22   status, during that period of status, are they unlawfully
23   present in the United States?
24        A.    No.
25        Q.    Is that because the Federal Government has


                                 Page 136
 1   recognized that fall within a category of lawful presence?

 2        A.    I believe so, yes.
 3        Q.    Could the same thing be said about cancellation of
 4   removal?

 5              After the removal has been -- the action has been
 6   taken that results in the cancellation of removal, is it fair

 7   to say that the person is still unlawfully present in the
 8   United States?
 9        A.    They are not unlawfully present any longer.
10        Q.    What about someone who has been granted political
11   asylum, is that person unlawful in the United States any

12   longer?
13        A.    No.

14        Q.    You discuss various categories of aliens who may

15   not be able to qualify for relief -- sorry -- who may be able
16   to qualify for relief.     Some of these examples I'm giving

17   you, but at the present time before they get that relief in
18   front of the immigration judge, they are, one might say,

19   unlawfully present in the United States.

20              You were asked about PROWARA, or the Welfare Reform
21   Act of 1996.     Are you familiar with Title 8, Section 1621 of

22   that act concerning State benefits to illegal aliens?
23        A.    Generally, yes.

24        Q.    And would you agree that that section prohibits
25   States from giving, with some exceptions, but prohibits


 1   states from giving State public benefits to illegal aliens?
 2        A.    That is the general thrust of that act, yes.
 3        Q.    That act assumes -- indeed, it requires the State
 4   to make a judgment about whether a person is an illegal
                              Page 137
 5   alien, doesn't it?

 6        A.     I'm not familiar with that particular provision.
 7        Q.     Well, if the States are barred from giving aliens
 8   unlawfully present in the United States benefits, then

 9   wouldn't it stand to reason that the Federal Government is
10   expecting the State to decide whether the person is lawfully

11   present or unlawfully present?
12        A.     I'm not sure how that act actually works in the
13   day-to-day operation.
14               THE COURT:   I don't think that if he is not
15   familiar with something, then you can't question him on it,

16   and you have done that, but you should stop that.    That is
17   improper.


19        Q.     Let me ask, are you familiar with Title 8, Section
20   1623, which concerns -- which is a denial of State's ability

21   to give in-state tuition to illegal aliens in the United
22   States?

23        A.     I have heard of that provision, but I haven't

24   looked at that time since it was enacted in 1996.
25        Q.     Are you familiar enough so you would agree that


 1   that provision requires states to deny that benefit of
 2   in-state tuition to aliens unlawfully present in the United
 3   States?
 4        A.     I would have to reread the statute to know.
 5        Q.     We have talked about a number of things you have
 6   written, your publications.
 7               Do you think your publications demonstrate any
 8   significant leaning against enforcement -- against stronger
                              Page 138
 9   enforcement oriented laws in the United States?

10        A.   I wouldn't characterize it that way.    I believe
11   that the law should be enforced.   I think one of our problems
12   is that because we don't have enough resources to enforce our

13   current immigration laws, we have problems that would
14   otherwise not be here.

15        Q.   Do you think that it is particularly important to
16   enforce our laws in the wake of 9/11, our immigration laws?
17        A.   I agree that we should always enforce our
18   immigration laws before and after 9/11.
19        Q.   Isn't it true in August of 2003 in Interpreter

20   Releases you said that American immigration laws should not
21   be used as an anti-terrorist tool, because they discriminate

22   against Muslims when you say, "It is especially important

23   that Islam's impressive history of tolerance and respect for
24   pluralism be promoted and publicized by the immigration bar."

25             Does that sound like something you wrote?


 1        A.   Can you give me the citation?
 2        Q.   Interpreter Releases, Volume 80, No. 33, August
 3   23rd, 2003.

 4        A.   And do you have title for the article?
 5        Q.   "America's Challenge."
 6        A.   Okay.   That sounds like something I wrote as part
 7   of the America's Challenge report.
 8        Q.   So it would be fair to say that you were not
 9   enthusiastic about enforcing immigration laws in the wake of
10   9/11?
11        A.   Well, I think we should enforce them, but I think
12   we should enforce them within the confines of the
                              Page 139
13   Constitution and due process.

14               MR. KOBACH:   Thank you.    No further questions.
15               MR. JADWAT:   Very briefly, Your Honor.
16                          REDIRECT EXAMINATION

18        Q.     If I told you that 8 U.S.C. 1621 provided that

19   State an local governments were not to provide certain
20   exceptions; benefits, public benefits to people who are not
21   either qualified aliens or non-immigrants, would the inquiry
22   for Section 1621 purposes be the same inquiry as to whether
23   or not someone is legally here?

24        A.     No, it would not, because there, they are looking
25   specifically as to whether you are eligible for public


 1   benefits.    In 1621, as I recall, says that if you are not in

 2   one of these categories, you don't get public benefits.         That
 3   is a different question from whether your status in the

 4   United States is lawful or not.

 5        Q.     So it's a different question on whether or not
 6   you're illegal?
 7        A.     Correct.

 8        Q.     I just wanted to ask about cancellation of removal
 9   and asylum.    I think your testimony on cross was that once
10   someone gets one of those applications granted or gets that
11   kind of relief from removal, they are no longer unlawfully
12   present.    They are no longer illegal in any definition of the
13   word, is that correct?
14        A.     Correct.
15        Q.     What about the time before they make the
16   application and, indeed, the time while the application is
                              Page 140
17   pending, do they have a lawful status during that time?

18        A.     They may not.    They may not be here lawfully.
19   Their status may have expired.      So until the time they are
20   granted relief by the immigration judge, they don't have what

21   we would consider a lawful immigration status.
22        Q.     And that would be true even if the operative facts

23   on which they are entitled to either cancellation or asylum
24   don't change through that period.         So they may have all the
25   facts that entitle them to that sort of relief, but they are


 1   unlawfully present until they get the opportunity to either
 2   apply to the immigration judge or to the service for that

 3   kind of change in status?
 4        A.     That is correct.

 5               MR. JADWAT:    I have nothing further, Your Honor.

 6                          RECROSS EXAMINATION

 8        Q.     I wasn't going to ask any more about this, but

 9   since on redirect you brought it up again.        You said that you
10   believe that Section 1621 of Title 8 of the U.S. Code asks a

11   different question than Hazleton does, and 1621 is, of
12   course, that provision you were just talking about.
13        A.     I didn't say that.
14               MR. JADWAT:    Your Honor, he didn't say anything.
15               THE WITNESS:    I simply said it goes to public
16   benefits.
18        Q.     Are you aware that the term, the unauthorized
19   aliens -- sorry -- ineligible aliens defined in 1621 are all
20   categories of aliens unlawfully present in the United States?
                              Page 141
21        A.     I guess I would have to look at the statute to know

22   that for sure.
23               MR. KOBACH:    Okay.    Thank you.
24               THE COURT:    The witness is excused.

25               MR. ROSENBERG:    Your Honor, while Mr. Monticello is


 1   on his way, pursuant to the Court's request, I have

 2   Plaintiffs' Exhibits 206 through 208, which are the documents
 3   that were reference ed during cross examination of Professor
 4   Borjas.
 5   SAMUEL MONTICELLO, called as a witness on as of cross

 6   examination, having been previously duly sworn or affirmed,

 7   testified as follows:


10        Q.     Good afternoon, Mr. Monticello.
11        A.     Good afternoon.

12        Q.     Can you tell me, within the City of Hazleton, is

13   there a repository that you have for census data, information
14   showing the number of people that reside in the City of

15   Hazleton?
16        A.     Not specifically, no.
17        Q.     So when you testified that you had received
18   information about the -- I think from the United States
19   Department of Housing and Urban Development and also from the
20   United States Census Bureau, is that information that you
21   maintain in your office?
22        A.     Not in my office.      It is dispersed to other offices
23   throughout the City.
24        Q.     And your estimate of approximately 30 to 33,000
                                Page 142
25   people that reside in the City of Hazleton, that is based


 1   upon the information that you received from the Federal
 2   Government, from your work in the City and knowledge of its

 3   expenses and revenues and also from just your personal
 4   perception living there, correct?
 5        A.   As well as some other, I guess you would refer to

 6   as quasi-governmental agencies, chamber of commerce,
 7   authorities, boards, that sort of thing, Greater Hazleton
 8   area agencies.
 9        Q.   Now, am I correct that others have estimated the

10   city's population to be higher than 33,000?

11        A.   Some have.    Some a little lower.   That is kind of
12   like an average that I took.

13        Q.   And the highest numbers you have heard of is

14   approximately 40,000?
15        A.   Approximately.

16        Q.   Have you heard anything higher than 40,000?

17        A.   Not that I recall.
18        Q.   We talked on Friday about your preparation of the

19   City's budgets, and we made some fleeted reference to the
20   financial statements.

21             Am I correct that you are also the one in the City
22   who is ultimately responsible for the preparation of the
23   City's financial statements?
24        A.   Yes.
25        Q.   If would you, please, in the binders, take a look


                                Page 143
 1   at Plaintiffs' Exhibits P-154 through P-159.       And that is in
 2   Volume 3 and 4.    So let's start with Volume 3 with P-154.
 3              Is P-154 the 2005 audited financial statements?
 4        A.    No, it is not.    I'm sorry.   It is.
 5        Q.    Do you recognize that as the City's financial
 6   statements for 2005?

 7        A.    Yes.
 8        Q.    Let's go to P-155.    That is the City's financial
 9   statements for the year 2004?

10        A.    Yes.
11        Q.    Look at P-156 in Volume.    Is that the 2003
12   financial statements for the City of Hazleton?
13              THE COURT:   What exhibit number?

14              MR. FIDDLER:   P-156.

15              THE WITNESS:   Yes.

17        Q.    P-157 would be the 2002 financial, statement

18   correct?
19        A.    Yes.

20        Q.    Finally, P-158 is for the fiscal year ending

21   December 31, 2001?
22        A.    Yes.

23        Q.    And P-159 is the fiscal year ending December 31,
24   2000 financial statement?

25        A.    Correct.


 1        Q.    Now, am I correct that these financial statements
 2   are not prepared by your office, but instead by an outside
 3   accounting firm?
 4        A.    That's correct.

                                 Page 144
 5        Q.    And every year your office instructs the outside
 6   auditors and accountants to prepare the financial statements,
 7   correct?
 8        A.    Yes.
 9        Q.    And for all but one of the years that we just
10   reviewed, the accounting firm was Parente Randolph, right?

11        A.    I believe so.
12        Q.    And there is actually two individual people at
13   Parente Randolph who work on this account, meaning the City

14   of Hazleton account?
15        A.    Two primary.
16        Q.    And there may be others, too?
17        A.    There may be others.

18        Q.    And the City financial statements are actually

19   required by law, am I right?
20        A.    Yes.

21        Q.    And the City, in addition, wants to prepare these

22   financial statements to get an accurate picture of its
23   financial records for the prior year?

24        A.    That's correct.

25        Q.    These are audited financial statements, correct?


 1        A.    Yes.
 2        Q.    And an audited financial statement means that it is
 3   highest level of review that an accountant can give it.     Are
 4   you familiar with that?
 5        A.    I am.
 6        Q.    And when the City has these financial statements
 7   finalized, in addition to being required by law, you use
 8   these financial statements for other purposes, such as if you

                                Page 145
 9   wanted to borrow money, is that right?
10        A.   Yes.
11        Q.   You give them to either the trustee and the bond
12   holders or to the financial institutions to show what the
13   City's financial position is and to show that it is able to
14   repay the money that it borrows, correct?

15        A.   That is true.
16        Q.   Now, these financial statements are finalized at
17   the end of August or in August of each year approximately, is

18   that right?
19        A.   There about.
20        Q.   And your office first receives drafts of the
21   financial statements in or about May of each year?

22        A.   That is true.

23        Q.   So, for example, for the 2006 year, you haven't
24   received anything from the auditors yet?

25        A.   That is right.


 1        Q.   You probably receive it some time in the May time
 2   frame in draft form, right?

 3        A.   Yes.
 4        Q.   Now, once you receive the draft audited financial

 5   statements, you have the opportunity to review them, correct?
 6        A.   Correct.
 7        Q.   And am I correct that you give copies of those to
 8   the Mayor to review, too?
 9        A.   Yes.
10        Q.   And do you give copies to City Council to review?
11        A.   I'm not sure if they get them at that point or not.
12   It is usually dispersed by the auditors at that point.

                                Page 146
13        Q.   But you certainly have the opportunity to review
14   and comment on the financial statements as does the Mayor?
15        A.   That's right.
16        Q.   You also have a role in writing the narratives that
17   go into the financial statements, isn't that right?
18        A.   Some, yes.

19        Q.   Now, if you turn back to Plaintiffs' Exhibit 154.
20   That is the 2005 five audited financial statement?
21        A.   Yes.

22        Q.   Specifically if you start on Page 5, there is a
23   discussion, and it continues on before you actually get to
24   the numbers from Pages 4 to Page 8, correct?
25        A.   I'm sorry?


 1        Q.   The written discussion, it begins actually on Page

 2   5 and continues onto Page 8, and it is actually throughout
 3   here gives summary of the information that is relevant to the

 4   City's finances?

 5        A.   Yes.
 6        Q.   And am I correct that when you give your comment on

 7   this, you give them to Parente Randolph, and they are either
 8   incorporated or you discuss them, but in any event, you have
 9   the opportunity to be heard about what should be put in
10   there?

11        A.   Well, this is a compilation of their analysis of
12   the City's finances.   Parts of this are taken from the budget
13   narrative that I had prepared that you had gone over with me
14   in my previous testimony.   So there are excerpts from that in
15   this narrative that you are referring to now, but there is
16   also parts of this that are solely prepared by the auditors

                               Page 147
17   themselves.
18        Q.   But you review it, as does the Mayor, correct?
19        A.   Yes.
20        Q.   And ultimately when the financial statements are
21   completed, in or about August, then you are given an
22   opportunity -- I shouldn't say given the opportunity, but you

23   then review them again, correct?
24        A.   Correct.
25        Q.   And am I correct that the financial statements


 1   don't attempt to point out every little thing that is going
 2   on with the City, but the focus is one of materiality.

 3   You're familiar with that concept, aren't you?

 4        A.   I am, but I don't necessarily agree with that.
 5        Q.   You don't agree with the proposition that things

 6   that are included in financial statements are those that are
 7   material to the City's financial condition?

 8        A.   I agree that they are, but I don't agree that they

 9   encompass everything that is material or leave out some that
10   is material that isn't or includes some that is that isn't.
11        Q.   Well, the idea --

12        A.   It is more or less a subjective interpretation of
13   their report in some cases.

14        Q.   The concept of materiality is one that says that if
15   there is something that is going to affect the City, we want
16   to put it in these financial statements so that if we go to
17   borrow money, for example, our creditors will know our full
18   and complete and accurate financial picture, correct?
19        A.   That is correct.
20        Q.   And that is the point of materiality, right?

                             Page 148
21        A.    Right.
22        Q.    So, therefore, it is important to put things in the
23   financial statements that could materially affect the City's
24   finances, correct?
25        A.    That's correct.


 1        Q.    Otherwise would you be misleading creditors,
 2   potentially, and you don't want to do that, do you?
 3        A.    Not at all.
 4        Q.    And you wouldn't be complying with the law, because

 5   the law requires to have financial statements that give a
 6   full, complete and accurate picture of the City's finances,

 7   correct?

 8        A.    That's true.   All I was simply saying is that there
 9   are material things that are not included in this summary of

10   this report, and there are things that may be in this report
11   that are not necessarily material in the aspect that you are

12   referring to.

13              It is not a comprehensive report in that respect.
14   It is a snapshot of our financial picture and more involved

15   with the numbers.
16        Q.    Well, there is a difference between including

17   something that is not material and omitting something that is
18   material, isn't there?
19        A.    That would depend on the circumstances.
20        Q.    If I am someone who the City is trying to borrow
21   money from, and you put something in there that is not
22   material, I may not mind, but if you omit something that is
23   material, and I give you money, and you can't pay it back,
24   that might be a problem, isn't that right?

                                Page 149
25          A.   Certainly.


 1          Q.   Am I correct that there is no mention in the 2005
 2   financial statements or any of the other ones that we looked
 3   at about the costs of illegal immigration on the City of

 4   Hazleton?
 5          A.   Well, considering the fact that this is a 2005
 6   audit, I have not reviewed this in a couple of years,
 7   actually.    So I don't know that.
 8          Q.   Well, a couple years would have been last year.

 9          A.   Yes.
10          Q.   You would have been reviewing it in August of last

11   year, correct, that is when the final one came in?

12          A.   Yes.
13          Q.   So it has been less than a year.   It has been more

14   along the line of six months, correct?
15          A.   Or sooner than that.

16          Q.   And so you haven't reviewed this to determine

17   whether it says anything about the costs involved with
18   illegal immigration.     You don't know whether it's in here or

19   not?
20          A.   No, and I'm not sure that it should state anything.

21          Q.   That is not my question.
22               My question is, are you aware that it is not in
23   here?
24          A.   Am I aware of that?
25          Q.   Yes.


 1          A.   No, I'm not aware of that.
                                Page 150
 2        Q.   Are you aware that there is no mention of the costs

 3   of illegal immigration in any of the financial statements
 4   that we have looked at?
 5        A.   I don't see that there should be a reason why that

 6   would be in there.    That is not the type of report it is.
 7             THE COURT:    Just answer the question, yes or no,

 8   and if you have to answer, you can explain.
 9             THE WITNESS:    No.
11        Q.   So you're not aware that it is not in there?
12        A.   I am aware that it is not there.

13        Q.   So you would agree that there is no mention of the
14   financial statements with the costs of illegal immigration to

15   the City of Hazleton?

16        A.   Not to my knowledge.
17        Q.   Let's take a look if you would at the 2005

18   financial statements of P-154.    Specifically, if you turn to
19   Page 5, am I correct that in the year 2005 the City's net

20   assets increased by $58,953?

21        A.   Yes.
22        Q.   And the governmental activities increased by

23   $1,193,778 in 2005?
24        A.   Yes.

25        Q.   And that was about an 18 percent increase over


 1   2004?
 2        A.   Correct.
 3        Q.   Am I also correct that the City's expenses in 2005
 4   were less than its revenues in 2005?
 5        A.   Can you repeat that, please?
                              Page 151
 6        Q.   Yes.   In 2005, the City's expenses were less than

 7   the revenues generated from taxes and other sources for
 8   governmental programs, correct?
 9        A.   That's correct.

10        Q.   Now, if you flip to Page 8, in 2005, the City's
11   combined net assets increased to 12.9 million from 11.7

12   million the year before, isn't that right?
13        A.   Correct.
14        Q.   And the net assets is a way to measure the City's
15   fiscal health, isn't that right?
16        A.   It is one barometer, yes.

17        Q.   Am I also correct in 2005, the City collected
18   $559,014 more in earned income tax than it had originally

19   anticipated?

20        A.   Where is that?
21        Q.   Rather than hold it up, are you aware that the City

22   in 2005 received more earned income tax than it originally
23   thought it was going to irrespective of the amount?

24        A.   It may have.    Without the year-end numbers, I don't

25   know that offhand.


 1        Q.   I come back to that.
 2             Are you aware of whether the business privilege tax
 3   and mercantile taxes remained steady during 2005?
 4        A.   I suspect so.
 5        Q.   Let's change gears away from the finance
 6   statements.
 7             You had the opportunity as the City Administrator
 8   to read the ordinances that are at issue in this litigation,
 9   am I correct?
                                Page 152
10        A.   Yes.

11        Q.   And you are aware, aren't you, that there is a
12   tenant registration ordinance which has been adopted?
13        A.   Yes.

14        Q.   It is 2006-19, do I have the number right, 13, are
15   aware of that?

16        A.   Yes.
17        Q.   That ordinance requires for tenants to come into
18   the City and to register and fill out the forms that are in
19   Mr. Dougherty's office, did you know that?
20        A.   Yes.

21        Q.   And are you aware that notice was put out about the
22   obligation to register in the paper, the local paper?

23        A.   Yes.

24        Q.   And that notice was put in English, wasn't it?
25        A.   Yes.


 1        Q.   And it was not put in any other language, because

 2   there is an ordinance that says that English is the only
 3   official language of the City of Hazleton, correct?
 4        A.   There is an ordinance to that effect.

 5        Q.   And there has never been any notice of the
 6   obligation to register in any other language than English,
 7   isn't that right?
 8        A.   Could you repeat that, please?
 9        Q.   You're not aware of the City of ever having given
10   notice to tenants who reside in the City of the obligation to
11   register in any language but English?
12             MR. ADAIR:   Objection, Your Honor.
13             Your Honor, again, this is something that has been
                              Page 153
14   covered by a stipulation that the parties have stipulated

15   that the official English ordinance --
16              THE COURT:   That is not being challenged in this
17   lawsuit.   However, he can ask that question.   I don't see

18   anything wrong with the question.
19              Overrule the objection.

20              THE WITNESS:   Sir, the City does not pass any
21   ordinance in any other language than that of English.
22              So I am aware that it was only passed in English.
24        Q.    Sir, my question might have been poorly worded, and

25   I apologize for that, but my question to you wasn't whether


 1   the ordinance was passed in English.    My question was whether

 2   the City gave notice of the registration obligation in any

 3   language other than English?
 4        A.    I'm not aware of that.

 5        Q.    Are you aware that not everyone in Hazleton speaks

 6   English?
 7        A.    Am I aware of that?

 8        Q.    Yes.
 9        A.    Yes.

10        Q.    And that the predominant language, other than
11   English, would be Spanish in Hazleton, correct?
12        A.    I would say so, yes.
13        Q.    Am I correct that you have had conversations with
14   Mr. Dougherty, the Director of Planning and Public Works,
15   about how the City can communicate the registration
16   obligation to those of its resident who don't speak English?
17        A.    There were internal discussions.
                               Page 154
18          Q.   And those were with Mr. Dougherty?

19          A.   They were -- I'm not sure if they were with him
20   directly.    They were among City officials, and I'm not sure
21   if he was involved with it or if it was in the Mayor's

22   office, but there were discussions along those lines.
23          Q.   One of the things that you had considered was

24   trying to speak to reporters at Spanish speaking newspapers
25   to get them to put out stories about the obligation to


 1   register -- to notify those of the residents who do not speak
 2   English, isn't that right?
 3          A.   Well, I'm familiar with one Spanish speaking or

 4   Spanish written newspaper or newsletter in the City of
 5   Hazleton, and that was a consideration, or something at one

 6   pointed mentioned, if I recall.

 7          Q.   You also considered or are considering hiring an
 8   agent, somebody who can get the word out for the City to its

 9   Spanish speaking residents, correct?

10          A.   Well, when you say considering, you are referring
11   to conversations that occurred internally amongst City

12   officials.
13               Whether or not they were actual considerations to
14   move forward on those ideas haven't been determined as of
15   yet.   So conversations, yes.   Other than that, I can't say
16   that anything was considered to move forward or acted upon.
17          Q.   And I didn't mean to suggest that the determination
18   had been made, but it is something that you had been talking
19   about with others in the City about ways to try to give
20   notice to the non-English speaking residents, isn't that
21   right?
                               Page 155
22          A.   Perhaps, yes.    In the way that you are speaking,

23   yes.
24          Q.   If you were to go out and hire an agent, I would
25   assume that would cost the City money, is that right?


 1          A.   You would think so, if we had to hire an individual
 2   to do that, it would cost money.

 3               MR. FIDDLER:    Those are all the questions I have,
 4   Your Honor.
 5               THE COURT:   Mr. Adair.
 6               MR. ADAIR:   Thank you, Your Honor.

 7                            CROSS EXAMINATION

 8   BY MR. ADAIR:
 9          Q.   Mr. Monticello, you have been waiting a long time

10   to conclude your testimony here before the Court.      I'm going

11   to ask you some follow-up questions.
12               Counsel went over some of your background, and I

13   don't mean to belabor the point.      I don't want to rehash old

14   ground, but I do want to touch on a few issues that perhaps
15   were missed when counsel initially went over your background

16   and qualifications.
17               First of all, did you grow up in the Hazleton area?

18          A.   I did.
19          Q.   Where did you grow up?
20          A.   I'm a native of the City of Hazleton.
21          Q.   And you went away for college, correct?
22          A.   Yes.
23          Q.   Where did you go to college?
24          A.   Villanova University.
25          Q.   And did you get a degree from Villanova?
                                Page 156


 1        A.     Yes.
 2        Q.     What was your degree in?
 3        A.     Business administration, administrative science.

 4        Q.     And was administrative science actually your minor?
 5        A.     Yes.   Yes, it was.
 6        Q.     Now, how long have you worked for the City of

 7   Hazleton?
 8        A.     I worked for the City of Hazleton a total of 22
 9   years.    I'm involved with City government a total 26 years.
10        Q.     Your current job title is the Director of Community

11   Development and Director of Administration?

12        A.     Correct.
13        Q.     Over your 22 years of working for Hazleton, plus

14   living in Hazleton for most of your life, do you believe you

15   have gotten to know the community pretty well?
16        A.     I would think so, yes.

17        Q.     Let me take you to the City of Hazleton's budget.

18   You had a number of questions asked about the 2007 budget, as
19   well as some of the other budgets.

20               First of all, when the City of Hazleton is passing
21   a budget, are there any constraints on the City as to what

22   they have to do with that budget?
23        A.     I'm not sure I understand what you mean by that.
24        Q.     Is the City of Hazleton allowed to run a deficit?
25        A.     No.


 1        Q.     Specifically what does the City of Hazleton have to

                                Page 157
 2   do?
 3          A.   The City must pass a balanced budget each year.
 4   Must submit a budget to the governing body by November 1st.
 5          Q.   And the budget document itself that you put
 6   together, you're responsible for getting a lot of numbers in
 7   that document, correct?

 8          A.   Yes.
 9          Q.   Then what do you do with it once you get the
10   framework together?

11          A.   The framework is put together by myself and some
12   office staff with some input from the Mayor.     Once the
13   numbers are crunched, put together, begin preparing the
14   narrative.

15               At some point during the process, I meet with the

16   Mayor on one or more occasions to review the progress of the
17   budget, and ultimately we agree upon a final document, and

18   that is what is ultimately submitted to council by November

19   1st.
20          Q.   What types of things do you put into the budget?

21          A.   You're referring to the narrative, I guess, or the

22   numbers?
23          Q.   I'm referring to both.    Let's start with the

24   numbers themselves.
25          A.   Well, the numbers, if you had an opportunity to


 1   look at our budget, it is pretty well broken out by the --
 2   well, first of all, revenues and expenditures, of course, but
 3   aside from that, the line items are pretty well defined by
 4   departments and broken out therein specifically by line
 5   items, so it is pretty well organized and pretty well broken

                                Page 158
 6   out by the costs and revenues.
 7        Q.   Now, how about the narrative, what types of items
 8   do you put into the narrative?
 9        A.   The narrative is a picture of where the City kind
10   of stands as of that writing, some of the things that the
11   City is working on, some of the major projects that the City

12   is working on, some of the things that may have affected us,
13   as far as capital expenditures in the past, what we have on
14   the horizon, as far as capital expenditures that we're aware

15   of, that sort of thing, if there is new hirees coming up,
16   just a snapshot of those kind of items, just a little
17   background of where we're at.
18        Q.   What is the purpose of the narrative?

19        A.   Just to give council kind of like an update of the

20   things that the administration is working on, what we have
21   been working on.   Those sort of things that, you know, they

22   are vaguely familiar with some of them, but maybe they don't

23   have the -- because they don't work on the day-to-day things
24   like the administration does, we kind of bring them up to

25   speed on some of those kind of projects and goings on.


 1        Q.   The narrative that you put together, is that

 2   intended to be all inclusive of the issues that confront the
 3   City of Hazleton for the upcoming year?
 4        A.   Not at all.   It would be too cumbersome of a report
 5   to try to incorporate everything that is going on or that we
 6   anticipate to occur or what we have been working on in the
 7   previous year or years.    It would be too cumbersome of a
 8   report for that purpose.
 9        Q.   2007 budget proposal, there has been a number of

                                Page 159
10   questions addressed to you regarding that, and if you would
11   like to refer to it, it has been marked as P-48, but my
12   question to you is, does the 2007 budget proposal address
13   increase in population for the City of Hazleton?
14        A.     I think there is a mere mention of it.   Think
15   Attorney Fiddler alluded to it, the fact that I mentioned an

16   increase of 30 to 33,000 as a number.    I think that is about
17   all I mentioned in it.
18        Q.     Do you believe that it deserved more mention than

19   in passing?
20        A.     If I thought it deserved more, I probably would
21   have expanded on it.   I thought it was just -- I mean,
22   council is aware of the population increase in the City.      I

23   just thought I would put a number to it.

24        Q.     Let's talk about some of the issues that -- first
25   of all, Attorney Fiddler asked you earlier whether there was


 1   any reference to illegal aliens in the 2007 budget, and your

 2   answer was, there is not.
 3               Are there other issues that confront the City of

 4   Hazleton that were also left out of the 2007 budget?
 5        A.     Well, there are, and as long as you opened the door

 6   with the illegal immigration question, I did not mention the
 7   fact that, you know, as well as the increase in population,
 8   and the fact that I didn't some of increase in the population
 9   is, of course, as a result of illegal immigration.    I didn't
10   mention the cost of the City -- the factor that it is costing
11   the City a great deal of money in terms of providing goods
12   and services to pay for the illegal immigration that is in
13   the City.

                               Page 160
14              I mean, we still provide police protection, the
15   fire protection, garbage collection, recycling collection,
16   street work, sewer work, all the basic services that our
17   legal citizens get and pay taxes for, we are providing for
18   those that are here illegally, and that is not mentioned in
19   the budget, but nonetheless, the same way that council is

20   aware of the increase in population, they are aware of that
21   as well.
22        Q.    Well, that wasn't exactly the direction I was going

23   to steer you, but while you're on that topic, let me ask you,
24   is there reference in the budget to the impact in the
25   increase of population, regardless of legal or illegal, and


 1   the provision of services, the difficulties of the City of
 2   Hazleton to provide services to the citizens?

 3        A.    Is there reference to it?
 4        Q.    Yes.

 5        A.    It is an ever increasing burden for the City of

 6   Hazleton to maintain the level of service that our citizens
 7   are accustomed to.   It is a struggle for the City to maintain

 8   that service.
 9        Q.    The other day when Attorney Fiddler was asking you
10   questions about the budget, you referenced some other things
11   that you thought were material that had not been included in

12   the budget.   One of them was the streets.
13              Do you recall that testimony?
14        A.    I do.
15        Q.    What is the -- what issues does the City of
16   Hazleton have with its streets that impact the budget?
17        A.    Well, I mentioned that because that is just a very

                              Page 161
18   obvious example to someone that lives in the City of
19   Hazleton, such as myself and anybody in City government.
20             The City of Hazleton has 120 miles of streets, and
21   believe me, after a winter such as the one we're having this
22   year and mostly every year, every one of those streets needs
23   work, road work of some kind, whether it is repaving,

24   patching, otherwise.   I know that kind of problem exists in
25   many municipalities throughout the Greater Northeast, but the


 1   fact remains that it is a big problem in our City.
 2             The other thing that I mentioned, I believe, is the
 3   City's sewer system.   We have areas of our City that have

 4   100-year sewer systems that have yet to be updated, and that

 5   is a continual problem that we experience every year.    We're
 6   trying to do it piecemeal because of the fact that we don't

 7   have the funds to fall back on.     I mean, I know these are
 8   problems that municipalities experience, you know.

 9        Q.   Let me ask you about the sewers.    Were the sewers

10   referenced in the 2007 budget?
11        A.   No, they weren't.
12        Q.   In 2006, did you have an issue with the sewers that

13   impacted the City's finances?
14        A.   We have had an issue with the sewers since 1980 and

15   will continue to have them until we can systematically
16   improve them as we're trying to do.
17        Q.   Do you recall whether in 2006 there were any large
18   expenditures of money for the sewer system?
19        A.   In 2006 there were, yes.
20        Q.   What do you recall?
21        A.   One in particular was a collapsed sewer.    That

                              Page 162
22   sewer line, major sewer line, I think it was -- I forget the
23   length of it, but several hundred feet that traversed a
24   baseball field through another municipality.     Unfortunately,
25   it was a City sewer line, but we were responsible for not


 1   only replacing the sewer line, but re-establishing the
 2   baseball field and the whole portion of their -- the adjacent
 3   municipality's street, and it cost a whole bunch of money for
 4   us.
 5              That is something that is unanticipated.    That's

 6   not the course of a normal replacement of our sewer lines
 7   that I was referring to.     That is something that we don't

 8   anticipate and occurs.

 9         Q.   That's, again, something that is not included in
10   the budget?

11         A.   Of course not.
12         Q.   Why is there no mention of illegal aliens or

13   illegal immigration in the budget?

14         A.   Well, it is not the type of document that it would
15   include something like that.     This isn't a population

16   document or a demographic writing or reading that I'm
17   preparing here.   It's a numbers document.    It is just a

18   snapshot of things in the City as I explained before.
19              I mean, I don't try to include every issue or
20   non-issue in the document.     It is subjective to what I put
21   in, and that is basically what it is.    I don't really have an
22   answer other than that to say why one thing is included and
23   one thing is not included.
24         Q.   Now, you testified earlier that you believe there
25   was an increase in the population, that you believe that the

                                 Page 163

 1   current population of Hazleton is about 30 to 33,000 people?
 2        A.   Yes.

 3        Q.   And what did the 2000 census place the City of
 4   Hazleton's population?

 5        A.   2000 census indicated, I believe, somewhere in
 6   excess of 23,000 and a couple hundred.
 7             THE COURT:   23,000?
 8             THE WITNESS:   23,300, 400, something like that.
 9   BY MR. ADAIR:

10        Q.   So between 2000 to the present, is it your
11   understanding that -- or is it your belief that there was an

12   increase in population of about 10,000 people?

13        A.   Yes.
14        Q.   Now, one thing that you did mention in the budget

15   was that the earned income tax had remained steady.    Do you
16   recall that testimony?

17        A.   Yes.

18        Q.   With an increase in the population, what effect
19   would you expect to see on the earned income tax?

20        A.   Well, a reasonable expectation would be that an
21   increase in population would call for an increase in your

22   work force.   An increase in work force would call for an
23   increase in the earned income tax.
24             Well, seeing that the population increased and the
25   earned income tax -- earned income tax relatively remained


 1   stable throughout the entire period, it doesn't make sense.
 2   It would seem to me that there is a portion of the population
                              Page 164
 3   that are probably not paying taxes is my first thought.

 4        Q.    For one reason or another?
 5        A.    For one reason or another, right.
 6        Q.    As the City Administrator, is that something that

 7   you have an interest in discovering the cause of?
 8        A.    Absolutely.

 9        Q.    Let's actually look at the earned income tax.      I
10   would like you to turn to the document in the Defendant's set
11   of documents.     They are in the white binders over there.
12   It's D-95?
13              THE COURT:    Let's take our 15-minute recess now.

14              (At this time, a 15-minute recess was taken.)
15   BY MR. ADAIR:

16        Q.    Mr. Monticello, before the break, I asked you to

17   take a look at D-95.     It is the 2002 budget proposal.   Do you
18   recognize that document?

19        A.    Yes.
20        Q.    And on the first page of D-95, under the heading of

21   special taxes, there are a number of entries below that.

22   Would you take a look at Line 310-3210.     Next to that it
23   says, EIT CURR. YR.     What does that EIT CURR. YR. mean?

24        A.    It is earned income tax current year.
25        Q.    And to the right of that entry, there are several


 1   numbers.   Under the 2002 proposal, what was the budgeted
 2   earned income tax for 2002?
 3        A.    $1,418,848.
 4        Q.    That is the budgeted proposal.    Is that the actual
 5   amount of money that the City receives for that tax year
 6   2002?
                                Page 165
 7        A.    Well, it is the budget proposal.   It is an

 8   estimated amount of money that the City anticipates
 9   receiving.    Sometimes it is higher.   Sometimes it is lower.
10   It is just what it is, it's an estimate.

11        Q.    When you're coming up with that number, are you
12   attempting to accurately anticipate the amount of income for

13   that category for the upcoming year?
14        A.    That's correct.
15        Q.    So for 2002, the number -- the budget proposal was
16   $1,418,848.    It says proposal.   Was that number actually
17   adopted?

18        A.    I believe it was.
19        Q.    Under the column of 2001, what was the budget for

20   tax year 2001?

21        A.    $1,316,000.
22        Q.    So the anticipated revenue from the earned income

23   tax for 2001 was that $1,316,000 number?
24        A.    Right.

25        Q.    Let's compare the 2002 number, $1,418,000 to the


 1   number with the 2007 proposal, which is in document -- the

 2   second volume of D-105.    Then I will direct you in Document
 3   D-105 to page, it is marked on the bottom right-hand corner
 4   as HZ1270.
 5        A.    Okay.
 6        Q.    First of all, what was the 2007 earned income tax
 7   proposed budget?
 8        A.    $1,400,000.
 9        Q.    Is that less than the 2002 proposal of $1,418,848?
10        A.    It is less.
                                Page 166
11        Q.   With an increase of population of 10,000 people

12   from 2000 to the present, would you expect to see the earned
13   income tax, the projected earned income tax to go down?
14        A.   No, I would not.

15        Q.   Do you know why that number went down?
16        A.   Well, as I stated previously, the first thought

17   that comes to my mind is that there is a segment of the
18   population that obviously is not paying their taxes for,
19   again, whatever reason that may be.
20        Q.   The tenant registration ordinance that we're here
21   discussing in this lawsuit, does that play any role with

22   regard to potentially increasing the earned income tax that
23   is recovered?

24        A.   Well, I look upon it as not only -- it is in our

25   budget as a revenue based line item.   However, I look at it


 1   more as a means of identifying residents in our City that are

 2   not registered for whatever reason and are not paying taxes,

 3   and that gets them on the books one way or the another, and
 4   from that point, we can incorporate them into our other taxes
 5   and our other fees and get them to be paying for the goods

 6   and services that the City provides to our tax paying and
 7   bill paying citizens, that is paying not only for taxes, but
 8   garbage services and other services that we provide.
 9        Q.   Would you tell the Court how the City identifies
10   people who potentially owe income tax?
11        A.   Well, right now, the City uses several sources or
12   resources to identify individuals currently not paying.    It
13   does occur more common than not.   What we do is we compare
14   tax roles of different municipal authorities, such as the
                              Page 167
15   Hazleton City Authority, the Greater Hazleton Sewer

16   Authority, our tax offices, chamber of commerce listings, any
17   publications that we can get our hands on that would identify
18   population groups and residents and households and

19   identifying numbers that we can compare to one another in a
20   database to identify, you know, people that are slipping

21   through the process and not being -- not enabling the City to
22   bill them appropriately like we should be.
23          Q.   So based upon what you just said, is it accurate to
24   say that the tenant registration ordinance, one role that it
25   plays is to identify individuals who potentially owe income


 1   tax?
 2          A.   Certainly.

 3          Q.   Now, let's talk a little bit about the anticipated

 4   income from the tenant registration ordinance.
 5               On Friday, Attorney Fiddler asked you about the

 6   2007 budget, and indicated on the budget, there was a

 7   proposed $105,000 of income listed next to that number.    Do
 8   you recall that discussion?

 9          A.   I do.
10          Q.   First of all, how did the City of Hazleton

11   determine that the income from the tenant registration
12   ordinance was going to be $105,000?
13          A.   Well, to be honest, we don't know what the numbers
14   should actually be until we get some kind of input into that
15   number, and what I mean by input is, to actually collect the
16   tax itself and see what kind of numbers it generates, because
17   we don't know.
18               We have an estimation based on the numbers I said
                                Page 168
19   our population has increased, but we don't know of that

20   population increase how many people are illegal and how many
21   people are legal, but still not on the tax rolls for whatever
22   reason.   So we don't know what that number will generate.

23   That is truly an estimation.
24        Q.   And do you have any kind of indication of how many

25   people would comply with the ordinance if it actually went


 1   into effect?

 2             MR. FIDDLER:   Objection, Your Honor.   He is asking
 3   for speculation, and there is no foundation, and he doesn't
 4   have any knowledge about that issue.

 5             THE COURT:   Maybe he can rephrase the question.
 6   BY MR. ADAIR:

 7        Q.   Do you have any basis to determine the number of

 8   people who would comply with the ordinance if the ordinance
 9   went into effect?

10        A.   As with any ordinance City Council passes relative

11   to a new law or an amendment to an existing law, we don't
12   know who is going to comply with it.   It is a crap shoot, and

13   that is just something that needs to be determined by time.
14        Q.   With respect to the $10 fee with the tenant
15   registration ordinance, is that number -- strike that.
16             Do you have any expectation as to whether the $10
17   fee will be adjusted to higher or lower?
18        A.   It may be.   I don't know that at this point.   The
19   City has adjusted number for its permits at various in
20   different cases, different situations in the past, and
21   certainly, we review that sort of thing from time to time.
22   So if it needs to be adjusted, we will certainly look at it.
                              Page 169
23        Q.   Why would you adjust that number?

24        A.   If, in fact, it generates an amount of money that
25   supersedes what we expected, and it doesn't cost us that kind


 1   of money to maintain, you know, our costs in providing that
 2   type of service.
 3        Q.   And in that case, what would you do?    Would you

 4   adjust it downwards?
 5        A.   If it generated excessive revenue?
 6        Q.   Yes.
 7        A.   Yes.

 8        Q.   And Mr. Fiddler was asking you the other day about

 9   different aspects of the tenant registration ordinance and
10   different expenses that the City had incurred.

11             One issue that I didn't hear you reference was any

12   costs associated with enforcement.    Would there be any
13   anticipated costs associated with enforcement?

14        A.   Well, there is always costs anticipated with

15   enforcement.   You know, sometimes those kind of costs are
16   taken for granted, because one assumes that, well, you have a

17   code enforcement office.    That is their job, go out and
18   enforce the codes.   That may be true.

19             But we're talking about a situation where there may
20   be people that are not complying with our laws for one reason
21   or another, and it is these individuals that don't comply
22   with our laws that are forcing our code enforcement office to
23   work double time and triple time to go out and search them
24   and work their tail off trying to get them to, first, comply
25   with our law, and secondly, to register and work when,

                                Page 170

 1   otherwise, they need not be working at that.
 2        Q.     So overtime is one potential cost that you didn't
 3   reference the other day?
 4        A.     Yes.

 5        Q.     And right now there are two code enforcement
 6   officers?
 7        A.     That's right.

 8        Q.     And do you know whether you would require to hire
 9   additional code enforcement officers?
10               MR. FIDDLER:    Objection, Your Honor.   He is asking
11   to speculate as to future activities.

12               THE COURT:    Rephrase the question.

13   BY MR. ADAIR:
14        Q.     Well, the two code enforcement officers that you

15   have right now, do they have a lot of time on their hands?

16        A.     Not very much.
17        Q.     If, in fact, there are a number of violations

18   determined or discovered, who would be required to

19   investigate those violations?
20        A.     They would.

21        Q.     And if, in fact, the number of violations they were
22   required to investigate exceeded the amount of time that they

23   could devote in a given week, what would you have to do?
24        A.     Well, if we intended to make any headway at all in
25   enforcing this ordinance, we would have to look to hire an


 1   additional person or two to join our code enforcement office.
 2        Q.     I want to turn you away from that now.     I want to

                                  Page 171
 3   turn you talking about the police overtime.      The first thing
 4   I would like to turn your attention to is a document that is
 5   marked by both Plaintiffs and Defendants.       I will refer to
 6   the Plaintiffs' number.    It was identified as P-96 the other
 7   day.
 8               Document P-96 says police overtime for 2006.     Who

 9   prepared that document?
10          A.   The document was generated in my office.
11          Q.   Are we on the same -- are you on P-96?

12          A.   I'm actually on P-95, but I remember that we had a
13   different number.
14          Q.   We will get to P-95.    I want to make sure that you
15   are looking at the same document that I'm looking at.

16          A.   This isn't a document.     That is why I recall from

17   Attorney Fiddler's testimony --
18               MR. ADAIR:   That was the confusion we were talking

19   about the other day.

20               MR. FIDDLER:   That was the exhibit list error.
21   BY MR. ADAIR:

22          Q.   We will go off the Defendant's document list.

23          A.   What is the document?     What should it say?
24          Q.   I think what you're looking at is the wrong one.

25   For the Court's clarification, it is Document P-94, and at


 1   the top it says police overtime for 2006.
 2               Was that document prepared at your request?
 3          A.   Yes.
 4          Q.   Was does this document reflect?
 5          A.   This document is a summary of the police overtime
 6   by payroll in the year 2006 covering the period of January 6

                                Page 172
 7   through October 13th.
 8        Q.   So that is not complete for the whole year?
 9        A.   No.
10        Q.   Looking at Document P-94, are there any entry -- is
11   there any expenditures for police overtime that you attribute
12   to the arrest or apprehension of illegal immigrants?

13        A.   Two that I'm aware of, yes.
14        Q.   What are you referring to?
15        A.   They would be the payroll for the periods May 26th

16   and June 9th.
17        Q.   And the May 26th number, that is $16,870.26?
18        A.   Yes.
19        Q.   And June 9th is $10,591.28?

20        A.   That's right.

21        Q.   And you believe that those numbers are attributable
22   to the apprehension of illegal aliens?

23        A.   Yes.

24        Q.   Why do you believe that?
25        A.   Well, from time to time, as I review the financial


 1   statements, the monthly financial statements, there are
 2   numbers that jump out at me for one reason or another, and

 3   when I saw these numbers, they immediately jumped out at me
 4   because they are such a large spike from the other months, a
 5   large spike in overtime for those months, and at that point,
 6   I had a conversation with Police Chief Ferdinand and asked
 7   him, you know, why the overtime was so high during those
 8   periods and --
 9        Q.   What did you learn through your discussion with
10   Chief Ferdinand?

                                Page 173
11        A.     Well, I learned that the incidents that occurred
12   during those periods that prompted this spike in the payrolls
13   was the murder of Derrick Kichline was one incident that
14   occurred.
15               There was another incident that occurred and that
16   was a raid on Wyoming Street.     I believe it involved a raid

17   of barbershop and so on, and there was also another incident,
18   I believe, occurring on Pine Street Playground.      They all
19   kind of occurred during the same two-week period which would

20   have prompted these spikes in overtime.
21        Q.     So do you attribute the full approximately $27,000
22   to the apprehension of illegal aliens?
23               MR. FIDDLER:   Objection, Your Honor.   There is no

24   foundation.    He hasn't made any inquiry as to any other

25   relevant factors.


 1               MR. ADAIR:   I can follow up.

 2   BY MR. ADAIR:

 3        Q.     The Derrick Kichline investigation, did that
 4   involve the investigation of illegal aliens?

 5        A.     It did.
 6        Q.     The raid on the barbershop on Wyoming Street, did

 7   that involve the investigation and apprehension of illegal
 8   aliens?
 9        A.     Yes.
10        Q.     And the playground incident that you just referred
11   to, did that involve the arrest of illegal aliens?
12        A.     Yes.
13        Q.     And based upon those apprehensions of arrests of
14   illegal aliens, do you believe the $27,000 for those two

                                Page 174
15   entries is directly attributable to the investigation of
16   crimes involving illegal aliens?
17        A.    As was told to me by Chief Ferdinand, I do.
18        Q.    Now, Attorney Fiddler the other day pointed out
19   that the police overtime budget -- the police overtime
20   exceeds their budget pretty much every year.    Do you recall

21   that testimony?
22        A.    I do.
23        Q.    What I would like to do is I would actually like to

24   look to some of the prior years to compare them, and if
25   necessary, go back and point you directly to the budgets


 1   themselves, but Attorney Fiddler already took put you through

 2   them.
 3              MR. FIDDLER:   Your Honor, that's going to be my

 4   objection.   We went through these numbers in a lot of detail
 5   on Friday.   I don't see the utility of doing it twice.

 6              THE COURT:   I think he has a right to.

 7              MR. ADAIR:   The difference in what I would like to
 8   do is Attorney Fiddler pointed out the fact that they

 9   exceeded in each year the numbers.    However, what I would
10   like to point out is the actual amount that they exceeded the

11   numbers, because I believe that is significant.
12              THE COURT:   All right.
13              MR. ADAIR:   So I will try to do it as expeditiously
14   as possible.
15              THE COURT:   Is that all right with you, Mr.
16   Fiddler?
17              MR. FIDDLER:   That is fine, Your Honor.
18   BY MR. ADAIR:

                               Page 175
19        Q.    Let's start with the year 2002.   On Friday,
20   Attorney Fiddler pointed out that the budget for 2002 was
21   $19,500, and that in actual, as of September 30th of that
22   year, they exceeded that number by $39,251.
23              Do you know what the difference is there?
24        A.    About half.

25        Q.    It's about $19,751.


 1        A.    Double rather, I mean.
 2        Q.    2003, the budget was $25,000.   As of September of
 3   that year, the police overtime had reached $46,732.     The
 4   difference there, would you agree, is $21,732?

 5              2004, $25,000 budgeted, exceeded by -- the actual

 6   police overtime for that year was $60,101.
 7              Would you agree that the difference there is

 8   $35,101?
 9        A.    Yes.

10        Q.    2005, $30,000 was budgeted.   Police actually spent

11   as of September of that year, $66,903 in overtime.     There was
12   a difference of $36,903.
13              So would you agree with me, sir, that for the years

14   of 2005 to 2002, the largest difference between the budgeted
15   amount and the actual police expenditures was $36,903?

16        A.    Yes.
17        Q.    And let's look at what happened in 2006.
18              In 2006, you will recall that the budgeted amount
19   was $30,000?
20        A.    Correct.
21        Q.    Do you know what the actual police overtime was for
22   2006?

                                Page 176
23        A.   2006 I believe the police quadrupled the budgeted
24   amount.   I believe the year-end figure was somewhere in
25   excess of $120,000.


 1             MR. FIDDLER:    Your Honor, this is apparently
 2   reflected on a document, I would assume.
 3             On Friday, we went through what has been marked as

 4   P-95.   It has a figure of $113,000.   We don't have a final
 5   version of this report.
 6             Understandably, it would have been completed at the

 7   end of the year, and it was not available at the time the
 8   document request was served.   However, under the Federal

 9   Rules, I believe there is a duty to supplement the documents.

10             If he's going to testify to the existence of a
11   number that is reflected in a document, I think I'm entitled

12   to the document.
13             MR. ADAIR:   Your Honor, if I may, this was

14   actually -- this is not a report that is ordinarily prepared

15   by the City of Hazleton for any reason -- for any specific
16   reason.   It was prepared during the course of the litigation,

17   for the litigation itself.    It was prepared on December 11th,
18   2006.   There were a couple extra weeks.

19             The witness knows the actual number.   All we have
20   on this is a summary of the year-end total.   He just
21   testified that the actual total went up by a couple thousand
22   dollars more by the end of the year.   So the witness has just
23   testified to the same thing that he would see if we ran
24   another report as of December 31st, 2006.
25             MR. FIDDLER:    Your Honor, it is not a couple

                               Page 177

 1   thousand more.    It is over 7,000 in a two-week period, number
 2   one.
 3               Number two, it is a document, whether it has been

 4   printed out or not, under the new Federal Rules dealing with
 5   electrically stored information, it is something they have an

 6   obligation to produce, and it's something they have an
 7   obligation they have to produce to supplement.
 8               He's going to testify that he got the number from
 9   somewhere, and that somewhere is a document, whether it is
10   electric or printed.     It is not fair for him to testify to

11   that without me having it in front of him to cross-examine
12   him.

13               THE COURT:   Sustained.

14   BY MR. ADAIR:
15          Q.   That being the case, let's look at the number on

16   P-95?
17               THE COURT:   Was that a handout, that P-95?

18               MR. ADAIR:   Now, Your Honor.   That was in the

19   volumes.
20   BY MR. ADAIR:

21          Q.   You testified a moment ago that prior to 2006, the
22   largest the police had gone over their budget was by $36,000

23   dollars.
24               If you look at P-95, what was the total for police
25   overtime as of December 11th, 2006?


 1          A.   As per this document?
 2          Q.   Correct?
 3          A.   113,183.
                                Page 178
 4        Q.   You would agree with me that's difference of

 5   $83,000, a little bit over $83,000?
 6        A.   Yes.
 7        Q.   Is that the largest that the police have exceeded

 8   their allotted overtime as long as you have been the
 9   administrator to the City of Hazleton?

10        A.   That is the largest that I cold ever recall since
11   the year 2000 and probably in all of my 22 years in the City
12   of Hazleton.
13        Q.   And for that year, the budget for police overtime
14   was $30,000?

15        A.   Yes.
16        Q.   And you have attributed $27,000 to the

17   investigation of crimes involving illegal aliens?

18        A.   That I'm aware of.
19        Q.   Attorney Fiddler asked you the other day about the

20   City's bond rating.   What is the City's bond rating?
21        A.   Triple A, I believe.

22        Q.   As an administrator for a City, is a Triple A bond

23   rating something that you attempt to achieve?
24        A.   Yes.

25        Q.   Why do you attempt to achieve a Triple A bond


 1   rating?
 2        A.   It's a very superior rating, and it enables the
 3   City to be able to pursue that service when we need to, able
 4   to borrow money when we need to.   It shows that the City is
 5   in relatively good financial shape, and it is a good mark for
 6   the City to have financially.
 7        Q.   So the City -- despite the Triple A bond rating,
                              Page 179
 8   you indicate that that is an indicator that the City is in

 9   good shape.
10             Now, would you characterize the financial status of
11   the City at present?

12        A.   Well, the City is in good shape because we're able
13   to manage what we have at this time and keep the City afloat.

14   We are actually struggling to continue to provide the
15   services that we do to our residents.
16             I think I touched on that not only in the 2007
17   budget narrative, but the 2006, the 2005, and probably back
18   as 2004 and 2003.   We are finding it increasingly difficult

19   to continue to provide the services that we provide, and it
20   has come to the point where our services that we are

21   providing are not keeping pace with what is occurring in our

22   City.
23             The demand for our goods and services are ever

24   increasing, and our revenues are simply not keeping pace with
25   what is the demanded, and that is a problem that we are


 1   facing right now.   That would be the biggest problem that I
 2   see facing our City.

 3        Q.   Why are you finding it difficult to keep providing
 4   the goods and services?
 5        A.   Well, the demand for the services has grown with
 6   our population.   It certainly -- you know, it goes without
 7   saying that as your population increases, so does the demand
 8   for services and goods, and with the population increase,
 9   unfortunately, you are not seeing the increase in revenues
10   that we expect to go along with the correlation.   With the
11   increase in population should come an increase in our taxes
                              Page 180
12   and our service fees and we're not seeing that.

13        Q.     I want to ask you a couple questions now about the
14   financial statements, and Attorney Fiddler just earlier today
15   showed you the 2005 financial statement for the City of

16   Hazleton.
17               Attorney Fiddler asked you whether a draft was

18   provided to you in May in which it comes out.     Do you recall
19   those questions?
20        A.     I did.
21        Q.     And so the December or the financial statement for
22   2005 would have been provided to you in May of 2006, correct?

23        A.     It might have been.   It might have been June.   To
24   be honest with you, it could come at any point.     There is

25   no --


 1        Q.     That statement, would you agree it is prepared by a
 2   third party?

 3        A.     Yes.

 4        Q.     Does that reflect incidents that occur in the year
 5   2006?
 6        A.     No.

 7        Q.     Does that reflect incidents that are of concern to
 8   you in the year 2006?
 9        A.     Not usually, not that I'm aware of.
10        Q.     The financial statement for the year 2005, that
11   ends at the -- that's for the end of December 31st, 2005?
12        A.     That is correct.
13        Q.     The Derrick Kichline murder, did that happen in
14   2005 or 2006?
15        A.     2006.
                               Page 181
16        Q.   There are other crimes that you mentioned earlier,

17   the playground and the drug raid on Wyoming Street.
18             Did those happen in 2005, or did those happen in
19   2006?

20        A.   2006.
21        Q.   You tried to testify earlier that you didn't

22   believe that there should be mention of illegal immigration
23   in this financial statement, do you recall?
24        A.   I did.
25        Q.   Why is it that you believe that illegal immigration


 1   is not appropriate in that document?

 2        A.   Well, because this is a year-end financial
 3   document, an audited document that goes to State and Federal

 4   Governments and it gives a picture of the City's financial

 5   situation, financial picture, a picture of the accounts, the
 6   different accounts the City has, the different funds and fund

 7   balances the City has through its various revenues and

 8   expenditures and various budgets that the City has.
 9             The City has more than a general fund budget.   It

10   has seven other budgets as well.   That is what the document
11   is giving, a picture of that, rather than, you know, a
12   descriptive narrative of the entire City.
13        Q.   Does this document, the 2005 financial statement,
14   does it reference whether the drug trade in the streets of
15   the City of Hazleton have any impact on the City of
16   Hazleton's finances?
17        A.   Not that I remember, no.
18        Q.   Does it have any other discussion of whether crime
19   has an impact on the City of Hazleton's finances?
                              Page 182
20        A.   No.

21        Q.   Do you know whether the Mayor addressed the impact
22   of illegal immigration in the State of the City speech?
23        A.   I'm sure he did.

24        Q.   Do you recall whether he did in January of this
25   year?


 1        A.   Unfortunately, I missed the Mayor's State of the
 2   City address.    I was taken ill this year.   So I don't know.
 3             MR. ADAIR:   I believe that is all the questions I
 4   have.

 5             MR. FIDDLER:    Just briefly, Your Honor.

 6                         REDIRECT EXAMINATION

 8        Q.   I want to take you back, Mr. Monticello, to P-154,

 9   which is the 2005 financial statement, and I want to ask you
10   about the earned income tax issue that we looked at.

11             Turn to Page 12, please.     If you go up two

12   paragraphs, the second sentence in, it says, and this is
13   under budgetary highlights, there was a $559,014 -- let me

14   start over.   There was $559,014 more earned income tax
15   collected than originally anticipated.     Do you see that?
16        A.   I do.
17        Q.   And is that a correct statement?
18        A.   I would have to assume it is.
19        Q.   Now --
20        A.   I didn't write it, I don't believe.
21        Q.   But it was prepared under your direction?
22        A.   Yes.
23        Q.   Your the client that they prepare it for?
                              Page 183
24        A.   Yes.

25        Q.   You talk about the burden that undocumented persons


 1   put on services.   Am I correct that any time a population

 2   grows, there is a burden placed on services?
 3        A.   Yes.
 4        Q.   And that is especially the case when the population

 5   grows a lot, right?
 6        A.   That is correct.
 7        Q.   Such as a 40 to 50 percent increase between 2000
 8   and 2006, correct?

 9        A.   Correct.

10        Q.   Now, am I correct in the last couple of years the
11   City has not cut any services to its residents?

12        A.   When you say the last couple of years, what --

13        Q.   Well, 2005, 2006, did you cut any services?    Did
14   you take away trash collection or did you take away sewer

15   service or did you take away roads?   I mean, is there

16   anything that happened that service that is provided to the
17   residents that you took away because you were not able to pay

18   for it?
19        A.   We did not take away basic services, no.   We were

20   not able to expand any of our basic services, however.
21        Q.   Now, when you talked about the fact that the budget
22   is not -- I think a demographic document is the word that you
23   used.
24             Has your office ever generated a memo, any document
25   talking about the demographics of illegal aliens in the City


                              Page 184

 1   of Hazleton?
 2         A.   No.
 3         Q.   Now, looking at P-94, which is the police overtime
 4   document --
 5         A.   Okay.

 6         Q.   -- and also P-95, which was the year-to-date
 7   document for 2006, correct?
 8         A.   Right.

 9         Q.   You attributed $17,000 to crimes that were
10   allegedly committed by undocumented persons in police
11   overtime, correct?
12         A.   Yes.

13         Q.   And doing some rough math, if we subtract 17,000

14   from 113,000, I get approximately 96,000, is that correct?
15         A.   Um-hum.

16         Q.   Yes?

17         A.   Yes.
18         Q.   We went through all the budget documents, but isn't

19   it correct that even subtracting out the crimes that have

20   been committed allegedly by undocumented persons in the
21   police overtime, the City has never had police overtime in

22   the neighborhood of 96,000 before either?
23         A.   Well    --

24         Q.   Is that yes or no, and then you can explain it if
25   it doesn't -- can't be answered that way.


 1         A.   It can't be answered the way that you're stating
 2   it.
 3         Q.   Let me rephrase the question.   Has the City ever

                              Page 185
 4   had $96,000 in police overtime before?
 5        A.   Not that I recall.   The reason that there is such
 6   an increase in the year 2006, one of the reasons, and let me
 7   just go back to what you stated.    You're picking out the two
 8   years, or two payroll periods that I indicated that I
 9   specifically inquired about because of the spiked increases

10   in those two months.
11             I did not ask about the other months that show
12   large increases, but not quite to the degree of those two

13   that I questioned Chief Ferdinand about.   There are seven
14   other months where the City shows $7,000 or more in overtime
15   that I didn't ask about, and I'm sure some of those months --
16   I'm not sure, but I would anticipate that some of those

17   months would have involved some of the similar type of

18   activities that were investigated in the two months that
19   showed the spikes.

20             So to say that they were the only two months, if

21   that is what you're implying by your question that only
22   involved illegal activities, it would be an incorrect

23   assumption on your part, if I may clarify that.

24        Q.   Sir, you understand, don't you, that we have asked
25   for all information in this litigation about expenses and


 1   police overtime.   You understand that, don't you?
 2        A.   I sure do.
 3        Q.   You understand this is an important matter, not
 4   only to the City and to the Plaintiffs, but to a lot of
 5   people?
 6        A.   Yes.
 7        Q.   It is important that we have accurate information,

                              Page 186
 8   right?
 9        A.   It is.
10        Q.   And the fact of the matter is, leaving your
11   suspicions aside, or your unfounded suspicions, you don't
12   know one way or the other whether there is police overtime
13   attributable to crimes by undocumented people, do you?

14        A.   That is correct.
15        Q.   You never --
16        A.   Nor do you, though, sir.

17        Q.   You never asked Chief Ferdinand about any months,
18   other than those two, correct?
19        A.   That's correct, for the reason I stated, because of
20   the large spikes in those two payroll periods.

21        Q.   Now, you were asked questions about the 2005

22   financials, which is P-154, and Mr. Adair asked you about
23   when the Kichline murder happened and when the immigration

24   ordinance was passed, and that was all in 2006, and you were

25   in the City in 2005, right?


 1        A.   Yes.

 2        Q.   Was illegal immigration and the costs associated
 3   with it, was that an issue in 2005?

 4        A.   Sure.
 5             MR. FIDDLER:   That is all of my questions, Your
 6   Honor.
 7             MR. ADAIR:   Briefly, Your Honor.
 8                          RECROSS EXAMINATION
 9   BY MR. ADAIR:
10        Q.   Mr. Monticello, are you aware that 30 percent of
11   the drug crimes in 2006 are attributable to arrests of

                               Page 187
12   illegal aliens?
13               MR. FIDDLER:    Objection, Your Honor.     It is beyond
14   the scope.
15               THE COURT:   I will allow it.
16               You can answer the question.
17               THE WITNESS:    Yes.

18   BY MR. ADAIR:
19          Q.   Do you have any knowledge as the administrator for
20   the City of Hazleton whether investigating drug crimes

21   involves a significant amount of time expended by the police
22   department?
23          A.   I do to a certain degree.
24          Q.   And do you know whether that time expended by the

25   police department results in overtime expenses?


 1          A.   Yes, I do.
 2          Q.   So in those other months, other than the two spiked

 3   months that you referred to, do you know whether any of the

 4   overtime for those other months went into investigating drug
 5   crimes?

 6          A.   Do I know for certain?       No.   Can I assume such?
 7   Yes.

 8               THE COURT:   No
 9               THE WITNESS:    No, I don't.
10               MR. ADAIR:   Thank you.
11               THE COURT:   The witness is excused.      Thank you.
12               Next witness.
13               MR. FIDDLER:    Your Honor, we call Robert Ferdinand.
14   ROBERT FERDINAND, called as a witness on as of cross
15   examination, having been duly sworn or affirmed, testified as

                                   Page 188
16   follows:
17                            DIRECT EXAMINATION
19        Q.     Good afternoon, Chief Ferdinand.
20               Am I correct that you're currently employed by the
21   City of Hazleton?

22        A.     That's correct.
23        Q.     And you have been a detective for the City of
24   Hazleton going back to 1989?

25        A.     No.    I have been employed with the City of Hazleton


 1   since '89, and have been a detective from 1998 until becoming

 2   chief.

 3        Q.     And you were a police officer before that?
 4        A.     Yes, and then a corporal.

 5        Q.     And you became police chief in August of 2005,
 6   correct?

 7        A.     Correct.

 8        Q.     And as the police chief, you're responsible for
 9   supervising the police force, correct?

10        A.     Yes.
11        Q.     And keeping track of these daily incident reports

12   that your officers and detectives fill out?
13        A.     Yes.
14        Q.     And communicating with the different divisions,
15   such as the narcotics division and the investigation
16   division?
17        A.     Yes.
18        Q.     You're also responsible for intra-departmental
19   discipline?

                                 Page 189
20        A.     Yes.
21        Q.     And you're responsible for training police
22   officers?
23        A.     Yes.
24        Q.     And ultimately in the police force all officers
25   report to you as police chief?


 1        A.     That's correct.

 2        Q.     Now, you are also in the executive branch of the
 3   City Government and you report to Mayor Barletta?
 4        A.     Yes.
 5        Q.     And am I correct that during the deposition phase

 6   of this case, you were designated by the City as the

 7   individual with the most knowledge about crime in the City of
 8   Hazleton?

 9        A.     I think that would be me.
10        Q.     Now, you meet -- as one of the department heads,

11   you meet with Mayor Barletta for weekly meetings every

12   Tuesday?
13        A.     Yes.
14        Q.     And, again, those department heads, other

15   department heads are there, such as Fire Chief Lutcho
16   (phonetic), Public Works Director Dougherty, correct?

17        A.     That's correct.
18        Q.     Some others.   Mr. Monticello is there?
19        A.     Yes.
20        Q.     And you have had those meetings the entire time
21   since have you been the police chief, correct?
22        A.     Yes.
23        Q.     Now, at these meetings, you tell the Mayor your

                                 Page 190
24   concerns, and so do the other department heads, and you
25   communicate with the Mayor, is that a fair way to describe


 1   it?
 2         A.   Yes.

 3         Q.   And that is the purpose of the meeting is to allow
 4   a fair communication and exchange of information between the
 5   department heads and the Mayor?
 6         A.   Yes.
 7         Q.   Ultimately aimed at the more efficient and

 8   productive administration of the government?
 9         A.   That's correct.

10         Q.   You're aware of the immigration ordinances that

11   bring us here today, aren't you?
12         A.   Yes.

13         Q.   Am I correct that you first learned that the City
14   was going to pass an immigration ordinance when you read

15   about it in the paper?

16         A.   It was right around the time that it was proposed,
17   perhaps, slightly before.

18         Q.   You learned about it from the papers, correct?
19         A.   I thought about that.       I think I became aware of

20   just before it became public, not long before that.
21         Q.   You remember in your deposition I asked you how and
22   when you became aware of it?
23         A.   I do remember.
24         Q.   You told me that you became aware of it through the
25   papers?


                                 Page 191
 1        A.   That's correct.    After the deposition, I thought

 2   about that and I seem to recall learning about that right
 3   around the time that it was proposed or very shortly before
 4   that.

 5        Q.   You say you thought about it.    Did you talk to
 6   anybody about it?

 7        A.   No.    I just searched my memory, and I believe that
 8   I became aware of that just before it was proposed.
 9        Q.   When you were searching your memory, did you recall
10   how you learned about it, if it wasn't from the papers?
11        A.   You know, I think that it was from a very brief

12   conversation with the Mayor's secretary.    I think right
13   before it was being proposed, I think I remember a

14   conversation where she said the Mayor is going to propose

15   this, and that was right before or right at the time.
16        Q.   Of the first reading of the first immigration

17   ordinance?
18        A.   Yes.

19        Q.   And that would have been in June of 2006?

20        A.   Yes.
21        Q.   Am I correct that at that point the ordinance was

22   already drafted?
23        A.   Yes.

24        Q.   And you weren't asked to give any input into that
25   ordinance, were you?


 1        A.   No.
 2        Q.   At these weekly meetings that you had with the
 3   Mayor, he never mentioned to you that he felt like there was
 4   a need to introduce an immigration ordinance in order to
                              Page 192
 5   address the crime problems in the City.   He never said that

 6   to you, did he?
 7        A.   Not in that manner, but we had many conversations
 8   about the state of crime in the City prior to that.

 9        Q.   My questions go to the immigration ordinance, not
10   to state of crime.

11             Just so the record is clear, at no point in time,
12   prior to when you first learned of the immigration ordinance
13   from the Mayor's secretary, did the Mayor tell you that he
14   was contemplating the adoption of such an ordinance?
15        A.   No.

16        Q.   Am I correct that at no point in time, at least
17   prior to the commencement of this litigation, did you ever

18   provide the Mayor with statistics on crimes that were

19   allegedly committed by undocumented persons?
20        A.   Information about the crimes, but not statistics,

21   per se.
22        Q.   You had discussions about crimes, but you never

23   went out and gathered information to say, this is the number

24   of crimes that have been committed by undocumented persons or
25   arrests of undocumented persons in our community.   You never


 1   gave that information to the Mayor, did you?
 2        A.   No.
 3        Q.   As a matter of fact, remember I took your
 4   deposition in December of 2006?
 5        A.   Yes.
 6        Q.   And that was sometime after this litigation was
 7   commenced, wasn't it?
 8        A.   Yes.
                              Page 193
 9        Q.   And even at that point in time, in December of

10   2006, you hadn't had the opportunity to gather the
11   information about the crimes that had been committed by
12   undocumented persons, correct?

13        A.   Correct.
14        Q.   I mean, you had in your mind the process at the

15   time that the City would have to go through in order to
16   gather that information, but because of other priorities, you
17   just didn't have the chance to do it yet, correct?
18        A.   That is fair to say.
19        Q.   Now, immediately before your second deposition in

20   February of 2007, you provided to your attorneys, the City's
21   attorneys, documents that you believe reflected crimes

22   committed by undocumented persons in the City of Hazleton?

23        A.   Yes.
24        Q.   And that is the first time that anybody in the City

25   had ever made an effort to gather that crime data, correct?


 1        A.   To my knowledge, that is correct.
 2        Q.   Certainly, the first time that you ever had the
 3   opportunity to gather that crime?

 4        A.   Yes.
 5        Q.   Now, you believe that there are illegal aliens
 6   living in Hazleton, I'm sure, is that right?
 7        A.   Yes.
 8        Q.   And you don't know how many, because we have heard
 9   a lot of testimony about no one knows how many, and you would
10   agree with that, I guess?
11        A.   I would agree.
12        Q.   And the reason -- one of the reasons you know that
                              Page 194
13   there has been crimes allegedly committed by illegal aliens

14   is because your department has arrested certain individuals,
15   correct?
16        A.    Yes.

17        Q.    And those individuals that you have arrested, you
18   believe some of them to be undocumented persons, is that a

19   fair statement?
20        A.    I know some of them to be undocumented.
21        Q.    When an arrest is made or a crime is to be
22   investigated, the police officers and detectives in your
23   department do reports, is that a fair statement?

24        A.    Yes.
25        Q.    And being in the 21st century now, there is a


 1   computer system that detectives and police officers use?

 2        A.    Yes.
 3        Q.    And the City of Hazleton's computer system is known

 4   as the Alert System, is that right?

 5        A.    Yes.
 6        Q.    And in the Alert System, there is a number of
 7   fields that the officers can fill in, such as suspect's name,

 8   victim's name, is that right?
 9        A.    Yes.
10        Q.    There is fields, for example, for date of birth of
11   the alleged offender?
12        A.    Correct.
13        Q.    And the sex and the marital status and the
14   residence, right?
15        A.    Yes.
16        Q.    And the physical description, right?
                               Page 195
17         A.   Yes.

18         Q.   Race, ethnicity, among other things?
19         A.   Yes.
20         Q.   And there are fields for all of those things,

21   right?
22         A.   Correct.

23         Q.   But there is no field for immigration status, isn't
24   that right?
25         A.   There is a field that gives you an option of U.S.


 1   citizenship, yes, no or green card, and that is the choices
 2   we have.

 3         Q.   And your officers don't use that, or do they use
 4   it?

 5         A.   They use it when they know the information at the

 6   time of entry of the report.
 7         Q.   And have you given them instructions about the

 8   types of information that should be filled out on these

 9   forms?
10         A.   I have given them instructions to be as thorough as

11   possible given the information they have at the time they
12   fill in the report.
13         Q.   There has been no modification of those reports any
14   time recently, has there, to try to include additional
15   information about immigration status?
16         A.   There is an update coming from the company called
17   Metro Technology that makes the program Alert that we'll be
18   looking to upgrade to very shortly.    I don't know if there
19   are any changes that deal with that, but currently there have
20   not been any upgrades.
                               Page 196
21         Q.   Have you contacted Metro Technology to ask them

22   whether they can make a modification to the software to
23   include that type of information?
24         A.   No.

25         Q.   Now, in addition to the information that is filled


 1   out on these police reports, am I correct that sometimes the

 2   police department comes into possession of, for example, a
 3   detainer that you receive from the Federal Government?
 4         A.   Yes.
 5         Q.   And a detainer is an order from the Federal

 6   Government to hold a particular prisoner until the Federal

 7   officials can come and get him?
 8         A.   Yes.

 9         Q.   And there is actually a sheet of paper that is a

10   detainer, but your office doesn't keep copies of that, does
11   it?

12         A.   No.

13         Q.   Because you don't keep copies of the detainers, you
14   can't for certain say how many people that your department

15   has arrested have been actually turned over to the Federal
16   Government, is that a fair statement?
17         A.   Not with complete accuracy.
18         Q.   Well, you can't count up the number of detainers.
19   You don't have a folder that says, Federal detainers, that
20   you can go through and count, is that fair?
21         A.   That's fair.
22         Q.   Now, in order for you to try to determine the
23   number of crimes that have been committed by undocumented
24   persons in the City of Hazleton, you actually had to go
                              Page 197
25   through and do a search of the police records, isn't that


 1   right?
 2        A.   Yes.

 3        Q.   That search principally -- well, it included a
 4   couple of things.   One, it include you going through the
 5   computer files, the Alert System, correct?

 6        A.   Yes.
 7        Q.   And there is a search key that can be used where
 8   you can look for a word within the database of a particular
 9   investigation report, isn't there?

10        A.   We can search by keyword, yes.

11        Q.   So, for example, you can search for the word
12   illegal, correct?

13        A.   Yes.

14        Q.   Or INS or ICE or immigration, and you can pull out
15   all of those reports, correct?

16        A.   The reports that contain those key words, yes.

17        Q.   If it's not in there, you're not going to pull it
18   out obviously?

19        A.   Right.
20        Q.   And so one thing that you did was you went through

21   and you searched those terms.    You did some of them yourself,
22   right?
23        A.   Yes.
24        Q.   And a paralegal with the Plaintiffs -- or the
25   Defendants firm did the others, is that fair?


                              Page 198
 1        A.    Yes.
 2        Q.    And you showed her how to do that before she
 3   actually went through it.    So it wasn't like she was just
 4   learning the system.    She knew it when she was going through
 5   it, right?
 6        A.    Yes.

 7        Q.    And so you did that, and the other thing you did
 8   was, you went and you had a discussion with your narcotics
 9   detectives and you asked them to give you a list of people

10   that from their memory they could recall as being
11   undocumented persons that they may have arrested, is that
12   fair.
13        A.    I requested a list be compiled.    They had, since

14   the inception of the narcotics unit, been keeping a tally of

15   arrests they made from the time the unit was formed, which
16   would have been September of 2005.

17        Q.    The narcotics division was keeping a tally of

18   arrests of undocumented persons?
19        A.    An arrest of persons through the narcotics unit, a

20   total -- a record of total arrests, not just undocumented

21   persons.
22        Q.    But for this project in compiling documents related

23   to this litigation and crimes committed by illegal aliens,
24   you asked them for a list of people who they thought might be

25   illegal aliens, correct?


 1        A.    I asked for a list of the total arrests and which
 2   one -- which of those arrestees were illegal aliens.
 3              THE COURT:   That question was to who?
 4              THE WITNESS:   I'm sorry, Judge?

                                Page 199
 5             THE COURT:   That question was to who?
 6             THE WITNESS:   That was to Detective Corporal Zola.
 7             THE COURT:   Thank you.
 9        Q.   And he, in fact, provided you a list?
10        A.   Yes, he did.

11        Q.   Now, if you turn to Plaintiffs' Exhibit 80.    We
12   have some books up here, and let me help you find it to save
13   some time.

14             Am I correct that your search of documents, the
15   first thing you turned up were these 21 reports that we
16   looked at in your deposition, correct?
17        A.   I believe so, yes.

18        Q.   And, again, these reports were generated when you

19   went through the search words and tried to pull up the
20   keywords that you put into the system or the paralegal put

21   into the system?

22        A.   They would have been turned up with either of us
23   searching the system, yes.

24        Q.   Am I correct that some of these reports, of these

25   21 reports, that do not actually reflect a crime committed by


 1   an illegal?   Do you remember when we went over that in your
 2   deposition?
 3        A.   Yes, or it was unknown.
 4        Q.   Right.   For example, if you turn to the first
 5   document there, which has the number at the bottom HAZ185.
 6   Do you have that in front of you?
 7        A.   Yes.
 8        Q.   This was actually a case from 2002, am I reading

                              Page 200
 9   that right?
10             THE COURT:   You're looking at the first page of 80?
11             MR. FIDDLER:    P-80, Your Honor.
13        Q.   You were the investigating officer, and this was a
14   rape, correct?

15        A.   Yes.
16        Q.   The offender here is someone by the name of Marcos
17   Vargas, correct?

18        A.   Yes.
19        Q.   And there is no mention of illegal immigration
20   status in this document, is there?
21        A.   I didn't enter that, because I don't think I was

22   able to obtain that information at the time.

23        Q.   But there is no -- in this document, in this police
24   report, in this police investigation report, there is no

25   mention of illegal immigration status, do you remember that,


 1   testifying to that in your deposition and we looked at it?
 2        A.   Yeah, there is none that I can see.

 3        Q.   You don't have any independent knowledge that
 4   Mr. Vargas was an illegal immigrant, do you?

 5        A.   No.
 6        Q.   Let's turn to Report No. 2, which is, if you look
 7   at the bottom, the number is HAZ189.     Do you see that?
 8        A.   Yes.
 9        Q.   This is again from 2002.      Am I reading that right?
10        A.   Yes, you are.
11        Q.   The investigating officer was Detective Corporal
12   Kenneth Zipovsky?

                                Page 201
13        A.     Correct.
14        Q.     And the offender was Ramon Veras Santana.      Do you
15   see that?
16        A.     Yes.
17        Q.     Am I correct that in this document, there is no
18   mention of illegal immigration status?

19        A.     Not in the document, but I believe Detective
20   Zipovsky positively identified the offender as being an
21   illegal alien.

22        Q.     Well, if you look at Page 4 of this document, there
23   is no mention of the offender being illegal, but what it does
24   say is he's a Dominican national.       Do you see that?
25        A.     Yes.


 1        Q.     Do you remember I asked you in your deposition

 2   whether you would equate a Dominican national as being
 3   someone who is illegal, and you said, no, not necessarily,

 4   you would agree with that?

 5        A.     Sure.
 6        Q.     And you understood when I was taking your

 7   deposition, I was trying to get information about what about
 8   this document showed that there was a crime committed by an
 9   illegal, and you didn't tell me at your deposition that
10   anything about what Mr. Zipovsky told you, did you?

11        A.     Perhaps I didn't know at the deposition, but the
12   lack of a notation in the summary does not mean that the
13   person was not illegal.
14        Q.     Well, you produced documents because you understood
15   in this litigation the key issue was the number of crimes
16   allegedly committed by undocumented persons, correct?

                                Page 202
17          A.   I think we --
18          Q.   That is a yes or no question.
19          A.   Is it?   Sorry.    Can you ask the question again?
20          Q.   Sure.    You produced documents because you knew that
21   it was an important issue in this case whether there were
22   crimes committed by illegal aliens or undocumented persons,

23   correct?
24          A.   That was the purpose of submitting the documents,
25   yes.


 1          Q.   And my opportunity representing my clients to find
 2   out what about this document led you -- what evidence a crime

 3   committed by an undocumented person was to ask you questions

 4   in your deposition, the second day of it, right?
 5          A.   Yes.

 6          Q.   And I asked you in your deposition, and you never
 7   told me that you had conversations with Detective Zipovsky

 8   about this, correct?

 9          A.   Because it is very likely that at that point I had
10   not.
11          Q.   When did you have a conversation with Detective

12   Zipovsky about that document?
13          A.   Sometime, I would say, in the last couple of

14   months.     I don't know precisely when, if I had a conversation
15   with him, but I think that during the course of my inquiries
16   regarding that, that this particular person and this
17   particular report was positively identified by the detective
18   as being an illegal alien, though it was not noted inside the
19   report.
20          Q.   There is no mention of it inside the report, right?

                                   Page 203
21        A.    Correct.
22        Q.    And when I asked you about the steps and the
23   process you went through to try to determine which documents
24   reflected crimes committed by undocumented persons, you
25   didn't mention to me that you talked to Detective Zipovsky or


 1   did you?   Was that one of the narcotics case?
 2        A.    No, I don't believe that was a narcotics case.
 3        Q.    This is a rape case, right?
 4        A.    Yes.

 5        Q.    Let's look at the next document.    If you look at
 6   HAZ199.    This is a 2005 case also in which Detective Corporal

 7   Zipovsky was the officer, correct?

 8        A.    Yes.
 9        Q.    And there were two suspects here.    There is a Karen

10   Zuleira Diaz-Pineda and an Oscar Pineda Diaz-Perez, is that
11   right?

12        A.    Yes.

13        Q.    This is another document which there is no
14   reference by a crime being committed by an illegal alien,

15   correct?
16        A.    Would you like me to scan the entire document?

17        Q.    Well, do you remember giving your deposition and we
18   talked about this case?
19        A.    Well, we talked about a lot of cases.    I don't
20   specifically remember this case.
21        Q.    In fairness, you are correct.
22              Turn back a couple pages from one page referring to
23   Ms. Diaz-Pineda, there is a reference that says, she is a
24   Honduran national.    Her residency status is valid, correct?

                                Page 204
25        A.   What page are you on?


 1        Q.   On Page 2.   Under summary, it's the second
 2   paragraph.
 3        A.   Yes.

 4        Q.   And with respect to the other criminal Defendant,
 5   Oscar Pineda Diaz-Perez, there is no reference of illegal
 6   immigration status in the rest of this document.      Take a look
 7   at it if you need it refresh your memory.
 8             MR. ADAIR:   Your Honor, if I may for a moment.       I

 9   don't have an objection.    The Defense is not passing off each
10   of these reports, as we understand after the Chief has gone

11   through them, they don't all involve illegal immigrants.

12             However, the Defense has identified the police
13   reports that did involve illegal immigrants, and I would be

14   happy to discuss with Mr. Fiddler which cases those are, and
15   we can give him a list.

16             MR. FIDDLER:    Your Honor, we're almost through

17   this.   We received 21 documents.     There is a handful that
18   will take me another couple minutes to go through, and it

19   would be a lot more efficient just to go through them with
20   the witness at this point.

21             THE COURT:   I agree with that.    I don't know what
22   you're suggesting.
23             MR. ADAIR:   I was attempting to suggest a way to
24   short circuit this, but I will take Mr. Fiddler's reference.
25             THE COURT:   Thank you.


                                Page 205
 2         Q.   There is no reference to Mr. -- the other criminal

 3   Defendant, Mr. Diaz Perez, being an illegal here, is there?
 4         A.   Not that I have seen, no.
 5         Q.   And you had, at least as of your deposition, you

 6   had no independent knowledge of his illegal status or her
 7   illegal status, correct?

 8         A.   Correct.
 9         Q.   Now, if you turn to the next document.       I want you
10   to go back to HAZ234, which is still part of Plaintiffs'
11   Exhibit 80.   This is a murder investigation, correct?
12         A.   Yes.

13         Q.   And it was in 2005, and the officer in charge was
14   Patrolman Scott Nicholas?

15              THE COURT:   I'm lost.     I can't find the report, and

16   I know it is here, but I'm on 0134.       Is it 0234?
17              MR. FIDDLER:   Yes.

18              THE COURT:   I'm looking at the wrong number.     I got
19   it.   Thank you.


21         Q.   This was a murder investigation from 2005 with
22   Patrolman Scott Nicholas, correct?

23         A.   Yes.
24         Q.   And the offender here is Jose Antonio Castro

25   Sanchez, do you see that?


 1         A.   Yes.
 2         Q.   And there is no reference to the offender being
 3   illegal, but if you look at the victim's name, Julio Angel
 4   Calderon, there is a reference to the victim being illegal,
 5   correct?
                                Page 206
 6        A.   I don't see the reference.    Is it on the first

 7   page?
 8        Q.   Let me ask you this:    Do you remember saying to me
 9   in your deposition that this was an instance in which you

10   believed that the victim was illegal?
11        A.   Yes.

12        Q.   And I think you're right.    There is not a reference
13   here one way or the other, but you did tell me in your
14   deposition that this was an instance that there was a victim
15   that was alleged to be illegal, not the perpetrator, correct?
16        A.   I believe that was the case.

17        Q.   Now, if you look at the next document, HAZ0301,
18   which is still part of P-80.    This is from 2006, correct?

19        A.   That is correct.

20        Q.   And this involved a run away minor, is that right?
21        A.   It appears so, yes.

22        Q.   And the uncle who was concerned that his nephew had
23   runaway told the police officers that I believe my nephew is

24   illegal, right?

25        A.   Yes.


 1        Q.   The one who ran away?
 2        A.   Um-hum.
 3        Q.   Now, in addition to these incident investigation
 4   reports, am I correct that you also made a search for daily
 5   police information sheets?
 6        A.   That is correct.
 7        Q.   And a daily police information sheet is a way for
 8   officers on one shift to communicate with the officers on the
 9   incoming shift about the status of pending investigations, is
                              Page 207
10   that a fair statement?

11        A.    It is a communication between shifts of information
12   that may be important to subsequent shifts, yes.
13        Q.    Now, I ask that you turn to Plaintiffs' Exhibit

14   113, and that should be in Volume 3.
15              All but the last one of these documents are daily

16   police information sheets, correct?    I believe there is eight
17   of them.
18        A.    It appears that way.
19        Q.    And the last one at the end is another incident
20   investigation report like we looked at with P-80?

21        A.    Yes.
22        Q.    Since you have taken -- took office in August of

23   2005, you started transferring this information via e-mail,

24   correct?
25        A.    Actually, I don't think that process took place


 1   until early in 2006.

 2        Q.    But it is a process which you transfer the
 3   information via e-mail to the officers on the incoming
 4   shifts?

 5        A.    I have them transfer the information to my e-mail.
 6   What they do for their purpose is read it on a paper printout
 7   like this.
 8        Q.    But it is the same information, is that fair say?
 9        A.    Yes.
10        Q.    Now, am I correct that there were some duplicates
11   between these daily police information sheets and the
12   incident investigation reports, do you remember that?
13        A.    With the same names?
                               Page 208
14        Q.    Same investigations, same crimes.

15        A.    Yeah.
16        Q.    Do you recall that?
17        A.    Yes.

18        Q.    For example, if you look at -- on Plaintiffs'
19   Exhibit 113, if you look at what has the number at the

20   bottom, HAZ00333.
21              Since you have two books in front of you, I would
22   ask that you compare that to on Plaintiffs' Exhibit 80,
23   HAZ303.    Do you have them both open?
24        A.    Yes.

25        Q.    Both of these refer to an investigation on


 1   September 22nd of 2006?

 2        A.    Yes.

 3        Q.    And both of them refer to criminal offender -- I'm
 4   going to try this name -- Eustadquio Salinas-Flores, close

 5   enough?

 6        A.    Close enough.
 7        Q.    Both refer to a public drunkenness type charge, is

 8   that fair?
 9        A.    I don't know about the narrative.   In the report,

10   it says alien violations.     On the police information sheet,
11   it mentions public drunkenness.
12        Q.    Is it fair to say that this is the same incident,
13   correct?
14        A.    It appears that way, yes.
15        Q.    Let's go again back to 113, Plaintiffs 113, the
16   investigation reports.     If you flip to the next page, which
17   is HAZ334, and on P-80, if you go back two pages to HAZ301,
                              Page 209
18   again, both of these refer to crimes on September 22nd of

19   2006.   We have in P-113, the daily investigation report
20   concerning the runaway, correct, that we just spoke about?
21        A.   Yes.

22        Q.   And that is the same incident, correct?
23        A.   Yes.

24        Q.   Again, on P-113, if you go to the next page and
25   compare it to on P-80, HAZ297, note that both of these refer


 1   to investigations on September 4th of 2006, correct?
 2        A.   Yes.
 3        Q.   And both of them refer to it's a car stop in which

 4   there were four occupants who ultimately your office
 5   determined were undocumented persons, correct?

 6        A.   Yes.

 7        Q.   And that is the same incident, too?
 8        A.   Yes.

 9        Q.   So we have three duplicates, we can agree to that?

10        A.   Yes.
11        Q.   Now, on the daily police information sheets, there

12   are at least one or two instances where there is a reference
13   to a suspect that is not an illegal.
14             If you take a look at HAZ330 on P-113, this is
15   Patrolman Zola, correct?
16        A.   Yes.
17        Q.   This refers to suspect Julio Alberto Gonzalez?
18        A.   Yes.
19        Q.   This states that Gonzalez is from El Salvador and
20   is probably in the country illegally.   Do you see that?
21        A.   Yes.
                                Page 210
22        Q.   And then you sent a message to INS, LESC, which is

23   a database, is that right?
24        A.   Yes.
25        Q.   Do you know if anything was ever done to determine


 1   whether Mr. Gonzalez was actually in the country illegal?
 2        A.   I don't know what the resolve or what the response

 3   from LESC was, no.
 4        Q.   So we don't know for certain whether this reflects
 5   the crime committed by someone who was an undocumented
 6   person, correct?

 7        A.   I don't know with certainty, no.

 8        Q.   We have one more duplicate.   If you look at HAZ337,
 9   and this is on the side of the document.

10             This is the investigation report pertaining to,

11   again, the gentleman we just looked at, correct, Julio
12   Alberto Gonzalez?

13        A.   It appears to be yes.

14        Q.   So those are the same as well, correct?
15        A.   I think so.

16        Q.   So just to summarize, we looked at initially 21 in
17   P-80, correct?

18        A.   Yes.
19        Q.   We know there are at least five in which there are
20   not any evidence in the documents and in which you don't have
21   any independent knowledge that there were crimes committed by
22   illegal aliens, correct?
23        A.   Yes.
24        Q.   And we looked at P-113, which is an additional nine
25   incidents, and there are four duplicates included in that,
                              Page 211


 1   correct?
 2        A.    Yes.
 3        Q.    And one additional one in which it is impossible to

 4   determine, or was never determined definitely whether the
 5   individual was actually in the country illegally, correct?
 6        A.    Is that the rape offense you're talking about?

 7        Q.    That was the one we looked at where it said
 8   probably in the country illegally, and you didn't know the
 9   follow-up from the database, correct?
10        A.    Correct.

11        Q.    These are sum total the documents that the police

12   department has been able to produce to evidence crimes
13   committed by illegal aliens since 2001, correct?

14        A.    Well, they are the documents containing those

15   words.    They are not necessarily the only documents that deal
16   with illegal aliens.

17        Q.    Well, again, you understood that we were looking

18   for all documents reflecting crimes committed by illegal
19   aliens, correct?

20        A.    Of course, but you understand that that is not
21   always documented in our reports for police purposes.

22        Q.    Well, you made that very clear, but you can't sit
23   here today and tell me that you know for certain there's any
24   other documents out there that you can definitively say
25   reflect crimes committed by illegals, isn't that right?


 1              You believe there are some out there, but you don't

                               Page 212
 2   know specifically which ones or how many or if any at all,
 3   isn't that right?
 4        A.    Well, I wouldn't say it's likely that there are no
 5   additional ones out there.    I can tell you that what we've
 6   produced using the search criteria that we utilized, these
 7   are the documents that contain those words that deal with

 8   illegal aliens.    I do not think that these are the only cases
 9   that we've had where we've dealt with illegal aliens.
10        Q.    But you had no other way of producing documents

11   which you can sit here and testify under oath were actually
12   crimes that were committed by illegals, correct?
13        A.    Correct, there is no other way that I know of.
14        Q.    Let's talk a little bit about the Derrick Kichline

15   murder.    That was a murder that occurred in May of 2006, is

16   that right?
17        A.    Yes.

18        Q.    Actually, we have the complete investigation report

19   as P-81.   There is a less than complete version as part of
20   P-80.   Let's look at P-81.

21              Now, I take it you had knowledge of the Kichline

22   investigation by virtue of your position as the police chief?
23        A.    Yes.

24        Q.    That was sort of a high profile murder within the
25   City of Hazleton, correct?


 1        A.    Yes.
 2        Q.    And I take it there was a lot of resources, and we
 3   heard testimony about a lot of resources about that
 4   investigation, Correct?
 5        A.    Yes.

                               Page 213
 6        Q.   And there were four undocumented persons who were
 7   arrested in connection with that murder, correct?
 8        A.   Yes.
 9        Q.   And I say arrested.   They have not yet been
10   convicted of anything, have they?
11        A.   That's correct.   It is still in the court system.

12        Q.   And as a matter of fact, with respect to all of
13   these investigation reports and daily incident reports that
14   we looked at, you don't know for certain whether any of these

15   suspects or defendants were ever convicted, correct?
16        A.   Well, no, that is not correct.   Actually, I think
17   we have some dispositions on some of them.
18        Q.   Do you know which ones?

19        A.   There was a list of summary list offenses that I

20   have seen, and I remember going through that and seeing some
21   of the drug cases there was a disposition on.

22             THE COURT:   Are we talking about the Kichline

23   murder?
24             MR. FIDDLER:   Your Honor, I started out with

25   Kichline and now I sort of broadened it to all of the


 1   incidents in which we received reports, and I'm asking

 2   whether there have been any -- if he has knowledge of any of
 3   these that were actually convicted.
 5        Q.   Let's take a look at the report a second.
 6             If you look at the Kichline report, for example, at
 7   the bottom it has case disposition, do you see that?
 8        A.   Yes.
 9        Q.   And the term used is cleared, and that's a term

                              Page 214
10   that is used by your office merely to say that an arrest was
11   made and it has been turned over to the district attorney's
12   office, correct?
13        A.    Yes.
14        Q.    Cleared doesn't mean that you have made the arrest,
15   you have gone to trial and you have gotten the conviction and

16   it is held up on appeal.    It just means that you have
17   arrested it, you pushed it along to the next step in the
18   judicial criminal justice system process, and you have closed

19   your files, so to speak?
20        A.    Yeah, generally that is correct.
21        Q.    And there is nothing on any of these reports that
22   shows whether the Defendant has been convicted of a crime,

23   correct?

24        A.    Not on the investigation report.
25        Q.    I mean, the officer would have to go back into the


 1   Alert System and make a notation about a conviction in order

 2   for that to happen, right?
 3        A.    In that particular report, yes, but we also have an

 4   arrest report that is part of the process that goes along
 5   with Alert that that can also be done.

 6              THE COURT:   What are we talking about?   Are we
 7   talking about Kichline?
 8              MR. FIDDLER:   We're talking about everything
 9   generally right now, including Kichline.
10              THE COURT:   Thank you.
12        Q.    That was you're understanding, too, I take it.
13   Hopefully you and I were on the same page?

                                Page 215
14        A.    Yes.
15        Q.    Generally speaking, the incident investigation
16   reports do not contain any notation about whether there has
17   been a conviction, correct?
18        A.    Correct.
19        Q.    That is not just for Kichline.   That is for all of

20   the crimes that have been reported, correct?
21        A.    Right.
22        Q.    And you're not aware of any police department

23   documents that show convictions of any of these individuals,
24   are you?
25        A.    I'm aware that we get disposition reports from


 1   county court regarding that from time to time.    I don't
 2   generally see them, but I know they have existed in the past.

 3   I don't know if we currently get those anymore.
 4        Q.    So you don't know of any documents within the

 5   police department's possession, custody or control that would

 6   show a conviction of any of these people who have been
 7   alleged to have committed crimes who the police department

 8   believes were undocumented persons?
 9        A.    Not within the police department.
10        Q.    And you made no independent effort to go out and
11   contact the D.A.'s office in order to obtain that

12   information, have you?
13        A.    I did not myself, no.
14        Q.    You didn't, as head of the police department,
15   instruct anyone else to do that on your behalf, did you?
16        A.    Correct.
17        Q.    Now, looking back at Kichline, you have been a

                               Page 216
18   police officer now for close to 20 years, is that right?
19        A.     About 18, yes.
20        Q.     And you have worked, I guess, from the beat on up
21   to the head of the department, is that right?
22        A.     Yes.
23        Q.     And one of the things you do is try to keep

24   yourself informed about issues generally and police issues
25   affecting law enforcement.      You try to keep up to date on


 1   matters beyond your local borders?
 2        A.     As much as I can, yes.
 3        Q.     And are you aware of statistics that suggest that

 4   most crimes are not randomly committed, meaning that usually

 5   there is a relationship of some sort between the victim and
 6   the perpetrator?

 7        A.     I think that is probably true, yes.
 8        Q.     And are you aware of any such relationship between

 9   Mr. Kichline and his alleged assailants in this case?

10        A.     No.
11        Q.     So is it your belief that this is a complete random
12   shooting?

13        A.     No, it is not my belief that it was random.
14        Q.     Do you believe there was some -- if there is no

15   relationship and it's not random, what is it?
16        A.     Well, random means just going out in this case and
17   shooting anyone that happens to be in front of you at the
18   time.   That is random.
19               We don't know the motivation.   We don't know the
20   reason for this, but for whatever reason, it was directed at
21   Mr. Kichline.      That is not random.

                                  Page 217
22        Q.     Were there narcotics involved in this in any way?
23        A.     On the part of the murderers, yes.
24        Q.     On the part of Mr. Kichline?
25        A.     No.


 1        Q.     Do you know when that case is going to trial?
 2        A.     Within the next couple of months.    It is still in
 3   the process of the County court.
 4        Q.     Now, we also heard testimony about a playground
 5   shooting.    Are you familiar with that?

 6        A.     Yes.
 7        Q.     And if you take at P-113.   If you turn to HAZ331.

 8   Is this that incident?

 9        A.     No.
10        Q.     Do you recall when this incident occurred?

11        A.     That would have been May 10th of 2006.
12        Q.     About the same time as the Kichline?

13        A.     Yes.   Actually on the same day.

14        Q.     Have we been provided with that report?
15        A.     I'm not sure if I had that or reviewed that or not.

16        Q.     These, I think, as they were produced to us are
17   generally in chronological order.     That may not be 100

18   percent true.
19               If you go to HAZ257, that is the Kichline murder,
20   correct?
21        A.     Yes.
22        Q.     And that was on 5/10 of 2006?
23        A.     Yes.
24        Q.     I ask you to look through and tell me if you see
25   another incident from 5/10 of 2006?

                                Page 218

 1         A.   You want me to go through all of P-80?
 2         Q.   Yes.   There are 21 reports.    I will represent to

 3   you that I do not see another incident from that day.      I will
 4   also represent to you that I'm not perfect, so maybe I missed

 5   it.
 6         A.   Well, I don't see one from 5/10.    I did come across
 7   one that deals with the subject in the playground shooting,
 8   Yeremy Pimentel, from 5/12/06.
 9         Q.   That is at HAZ272?

10         A.   Yes.
11         Q.   Am I correct that there is nothing in here about a

12   playground shooting?

13         A.   The report is not here.     I don't know if it was
14   done in the way of a report.    However, I do know that

15   juvenile petitions were filed on that very quickly during the
16   course of the Kichline homicide investigation, because these

17   guys at first were thought to be the ones responsible for the

18   Kichline homicide.   That turned out not to be the case.
19         Q.   So if there is a shooting on a playground -- and

20   what type of gun are we talking about?
21         A.   Well, actually we're talking two types of guns.

22   We're talking about a .22 and a 380.
23         Q.   On a playground?
24         A.   Yes.
25         Q.   And was anyone shot?


 1         A.   No one was injured that I know of.
 2         Q.   So your testimony is that two guns were discharged?
                               Page 219
 3        A.   Two shots were fired.   I don't know if both guns

 4   involved were actually fired individually or one gun was shot
 5   two times, but I know there were two shots fired.
 6        Q.   Is it a crime in the City of Hazleton to discharge

 7   a gun on a playground?
 8        A.   Yes, it is.

 9        Q.   I would hope so.   If there is a crime, were the
10   alleged perpetrators caught?
11        A.   Yes.
12        Q.   If they were caught, then I take it there would
13   have to be a report produced?

14        A.   I would think.   Why that wasn't done, I think it
15   was because of the homicide investigation on the same day,

16   and that took precedence over that.

17        Q.   Are you aware of any -- there was arrests, I take
18   it, of juveniles?

19        A.   Yes.
20        Q.   And you understand this was a high profile incident

21   in the City on the same day?

22        A.   Sure, but we had an actual homicide, not just shots
23   fired in a playground that actually took much --

24        Q.   I'm not suggesting that it is not -- I mean, it is
25   as serious as someone getting shoot.   What I'm suggesting to


 1   you is that there should be a document reflecting this
 2   incident, correct?
 3        A.   And there was -- there were documents generated in
 4   the form of juvenile petitions.   I don't know about an
 5   offense report.
 6        Q.   You don't do offense reports whenever there is a
                              Page 220
 7   juvenile involved, because I think we have other examples

 8   here, don't we?
 9        A.   Of course.   I don't know why that document is not
10   in front of me.   That is what I'm telling you.

11        Q.   What is in front of you is what was produced to us
12   in the litigation.   Again, the request that we made to the

13   City was for any and all documents reflecting crimes
14   allegedly committed by illegal aliens, whether or not they
15   resulted in convictions, and these juveniles discharging a
16   gun on a playground would seem to fall within that request,
17   wouldn't they?

18        A.   Yes.    Would you like me to explain why there is a
19   report here that deals with that and why the report from the

20   playground is not here?

21             MR. FIDDLER:    Well, I don't have a report from the
22   playground, Your Honor, and I would ask that it be produced

23   immediately.
24             MR. ADAIR:   Your Honor, with all due respect, the

25   witness just indicated that he would explain why there is a


 1   report here that deals with the instance and why there's no

 2   playground report here.    Why don't we let the witness answer.
 3             THE COURT:   But counsel is entitled to the report.
 4   Do you have the report?
 5             MR. ADAIR:   Your Honor, he just testified that
 6   there's a report here dealing with it and why there is no
 7   specific write up.   That is what he said.
 8             MR. FIDDLER:    That is not what he said, Your Honor.
 9             THE COURT:   Is there a report, an incident report?
10             THE WITNESS:    Your Honor, I don't know about the
                                Page 221
11   specific incident report about the playground shooting.      I

12   don't know if that exists, because I'm not in front of the
13   computer screen now.    I don't have that with me.
14              THE COURT:   Can you get the report for Mr. Fiddler?

15              THE WITNESS:   I don't know what form that report
16   takes, but I can tell you what occurred and how the arrests

17   were made and how the guy that appears in this report here --
18              THE COURT:   Before we get to that, he's entitled to
19   the report.    I have ordered the report.
20              MR. ADAIR:   If it exists.
21              THE COURT:   If it exists.   If there is no report,

22   there is no report.     So you can call him back tomorrow
23   morning.

24              MR. FIDDLER:   I will, Your Honor.

25              Just so we're clear, the testimony he just gave was


 1   that a report does exist, and when you fire a gun on a

 2   playground in Hazleton, there has to be some paper around.

 3              THE COURT:   Can you go to another matter until we
 4   get the report?
 5              MR. FIDDLER:   Sure, Your Honor.

 7        Q.    We were talking about the Alert computer system.
 8              Am I correct that in addition to generating the
 9   incident investigation reports, the Alert System is used to
10   compile a total number of offenses committed in the City in a
11   given year?    You can track that data from those reports,
12   correct?
13        A.    Yes.
14        Q.    And as a matter of fact, each and every year as a
                               Page 222
15   municipality of the Commonwealth of Pennsylvania, the police

16   department is required to submit crime statistic information
17   to the State Police, is that right?
18        A.    Yes.

19        Q.    And your office does that electronically by going
20   onto the State Police web site, is that how it is done?

21        A.    Yes.
22        Q.    And you don't print out reports or keep reports,
23   but you are able to do so, correct?
24        A.    I'm not sure what you mean.
25        Q.    Well, in the ordinary course of your business, you


 1   don't make a hard copy of the information that you submit to
 2   the State Police, but it's available in the computer system,

 3   correct?

 4        A.    It can be compiled from the computer system, but it
 5   is also true that we do not keep a copy of what we submit to

 6   the State Police.

 7        Q.    If you would turn, to Plaintiffs' Exhibit 73.
 8   Since we're at it, look at 74, 75, 76 and 77.

 9              These are the reports that you personally did
10   generate from the Alert Computer System, correct?

11        A.    Yes.
12        Q.    And just to finish out the -- or to complete the
13   record, if you look at -- hopefully, it is in the last
14   volume -- P-188, 189, 190 and 191.
15              Those should be the reports that you recently
16   provided to us in this case.   These are the remainder of the
17   reports.
18              So between P-73 to P-77, and the documents I just
                               Page 223
19   handed to you, these are the complete crimes statistics from

20   the year 2001 to the end of 2006, correct?
21        A.   Well, that's put an interesting way.   That is not
22   necessarily complete.    What I did was print out 2006 stats,

23   which is not necessarily complete, because I don't believe
24   that all the officers have submitted all their reports for

25   2006.   So I think that those statistics are still incomplete.


 1        Q.   As complete as can be at this time?

 2        A.   At this time, yes.
 3        Q.   Now, if you look at the -- it doesn't really matter
 4   which one you have in front of you, but if you pull out one

 5   of these documents which has up top, returned a monthly
 6   account of offenses known to police.   Do you see that?

 7        A.   Yes.

 8             THE COURT:    Are we looking at 73?
 9             MR. FIDDLER:    Yes, Your Honor.

10             THE COURT:    Would you repeat the question?

11             MR. FIDDLER:    Sure.

13        Q.   I guess my first point was to take a look at this
14   document, and am I correct that the account of offenses are
15   broken down into Part 1 and Part 2 offenses?
16        A.   Yes.
17        Q.   And Part 1 offenses are the more serious crimes and
18   Part 2 are the less serious crimes, fair?
19        A.   Yes.
20        Q.   And, for example, Part 1 are homicide, rape,
21   robbery, assault, burglary, larceny, theft, motor vehicle
22   theft and arson, correct?
                              Page 224
23        A.   Yes.

24        Q.   And Part 2 offenses --
25             THE COURT:    Are Part 2 on this sheet?


 1             MR. FIDDLER:    Well, Your Honor, we will have to go
 2   to another document, I think, for Part 2.

 4        Q.   If you turn to P-75, the second page of it, that
 5   shows Part 2 offenses, correct?       Do you have that there?
 6        A.   Yes.    Yes, it does.
 7        Q.   And the Part 2 offenses include forgery, fraud,

 8   embezzlement, stolen property, vandalism, weapons, carrying

 9   possession, prostitution, sex offenses, drug abuse, gambling,
10   and there is some more there, but those are the types of

11   crimes that involved in Part 2 offenses, correct?

12        A.   Yes.
13        Q.   And when we talk about violent crimes, again,

14   looking at the Part 1 offenses, you're looking at items 4D,

15   as in dog, which is assault, aggravated assault, to the top
16   of the page, correct?

17        A.   Yes.
18        Q.   And does it include -- it does include the Item D

19   there as well, correct?
20        A.   Yes.
21        Q.   Let's take a look at P-95, which is a document
22   that --
23             MR. FIDDLER:    Your Honor, I apologize.     I need one
24   second to find a new copy of this.      This was a document we
25   used with Mayor Barletta in which Mr. Adair and I went

                                Page 225

 1   through and agreed upon the numbers and the tally of all the
 2   offenses.
 3               If we may, Your Honor, because I only have a copy
 4   with my notes on it.     It might be a good time to break, if

 5   that's all right.    I can go into this document in the
 6   morning.    I'm not far from completing this witness, but I
 7   think we would be wasting time if I don't have a clean copy

 8   of it.
 9               THE COURT:   We will recess until 8:30 tomorrow
10   morning, and maybe you can generate that report that he
11   wants.   Thank you very much and good night.

12               (At this time, the proceedings in the

13               above-captioned matter adjourned.)








                          REPORTER'S CERTIFICATE

                                Page 226
         I, SUZANNE A. KASTELEBA-HALKO, Official Court
         Reporter for the United States District Court
         for the Middle District of Pennsylvania,
         appointed pursuant to the provisions of Title
         28, United States Code, Section 753, do hereby
         certify that the foregoing is a true and
         correct transcript of the within-mentioned
         proceedings had in the above-mentioned and
         numbered cause on the date or dates
         hereinbefore set forth; and I do further
         certify that the foregoing transcript has been
         prepared by me or under my supervision.

                       Suzanne A. Kasteleba-Halko, RMR,CRR
                       Official Court Reporter


         Official Court Reporter
         United States District Court
         Middle District of Pennsylvania
         Scranton, PA 18501-0090

                       Page 227

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