FAIR Legislative Update April 22, 2013
Just days after its introduction last week, the Senate Gang of Eight's amnesty bill (S.744) is already raising national security concerns. The bill, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act, would legalize approximately 12 million illegal aliens through a process that at every turn protects illegal aliens, some of whom may pose a security risk. Moreover, S.744 adds provisions to federal law that impede the Department of Homeland Security's (DHS) ability to detain aliens and remove aliens regardless of the reason.
First, S.744 protects illegal aliens before they even apply for amnesty, which the bill calls "registered provisional immigrant" (RPI) status. Under Section 2101, if an alien is apprehended — for any reason and apparently by any law enforcement agency — between the time of enactment and the end of the application period and the alien "appears prima facie eligible" for RPI status, DHS must give the alien an opportunity to file an RPI application and may not remove the alien until DHS makes a final administrative determination on the application. (Sec. 2101, p.70-71) If DHS denies an alien's application for RPI status, the alien may challenge the denial administratively, and may even sue DHS in federal court to overturn the Department's determination. (Sec. 2104(c), p.121-126)
Once an illegal alien obtains RPI status, S.744 impedes DHS's ability to detain or remove aliens who may pose a security risk. Under Section 2101, ICE agents may not detain or remove an alien with RPI status — for any reason — until DHS affirmatively determines the alien is ineligible for RPI status or revokes his/her RPI status. (Sec. 2101, p.73) However, DHS cannot revoke an alien's RPI status without giving the newly legalized alien an opportunity to challenge that decision. Under Section 2101, DHS may revoke an alien's RPI status only after providing "appropriate notice" to the alien and after the alien exhausts or waives all applicable administrative review procedures. Even then, DHS may only revoke RPI status if the alien: (1) is no longer eligible; (2) knowingly used RPI documents for fraud, or (3) was absent from the U.S. for periods lasting longer than 180 days. (Sec. 2101, p.73)
S.744 even goes so far as to prevent DHS from removing illegal aliens already in deportation proceedings or subject to a deportation order so that the aliens may apply for amnesty. Under Section 2101, if an alien subject to a removal order is still in the U.S. and is eligible for RPI status, the alien is still able to apply for the amnesty. (Sec. 2101, p.76) In addition, Section 2101 provides that if DHS determines that an alien in removal proceedings is "prima facie eligible" for RPI status, DHS must give the alien an opportunity to apply for amnesty and direct the Justice Department to suspend any removal proceedings. (Sec. 2101, p.73-75)
If, under these circumstances, DHS actually detains an alien, S.744 helps the illegal aliens challenge their detention and removal. First, Section 3503 creates a new bureaucracy, the Office of Legal Access Programs, and directs it to help detained aliens make "informed and timely decisions regarding removal and their eligibility for relief from removal…." In fact, under the language of the bill, DHS must ensure these "legal orientation programs" are available to the aliens within 5 days of arrival in custody. Section 3503 also authorizes the Office of Legal Access Programs to provide services, including legal services, to aliens in deportation hearings. (p.570-571)
In addition, Section 3715 creates a "secure alternatives program" in each ICE field office to create essentially what is a substitute for detention. (Sec. 3715, p.646) Through this program, DHS must contract with nonprofits in the community "to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision services." If an alien is not eligible for release from detention, DHS shall consider the alien for placement in secure alternative programs that maintain custody over the alien to serve as detention, by such methods as electronic ankle bracelets. (Sec. 3715, p.646-647)
Finally, S.744 places a heavy burden on DHS in order to secure detention of an alien. Sec. 3717 provides that for any alien taken into custody for any reason, DHS must file a notice to appear within 72 hours and serve notice on the alien. DHS must also within 72 hours serve the alien with a custody decision specifying the reasons for continued custody. Then DOJ must ensure that the alien has an opportunity to appear before a judge to review the custody decision. Unless the judge determines at that hearing that the alien is deportable, the judge may detain the alien only if DHS demonstrates that no conditions, including use of alternatives to detention that maintain custody over the alien, will reasonably ensure the appearance of the alien in court and the public safety. (Sec. 3717, p.652-653)
Together, these provisions not only impede DHS's ability to enforce our immigration laws against any alien applying for amnesty, they essentially ensure that DHS will only be able to detain aliens under the most egregious conditions. Not only does this pose a significant national security risk, it creates significant, statutory obstacles to the enforcement of U.S. immigration law. The result will no doubt be the creation of a new illegal alien population that will, over time, drive open borders advocates to demand that Congress adopt another amnesty program in the years to come.
Buried within the Gang of Eight's 844-page "comprehensive" immigration reform bill is a boon to the pro-amnesty lobby and immigration lawyers. Section 2537 authorizes the Director of U.S. Citizenship and Immigration Services, on behalf of the Secretary of the Department of Homeland Security, discretionary authority to award newly-created "Initial Entry, Adjustment, and Citizenship Assistance" (IEACA) grants to "eligible public or private, non-profit organizations." (S. 744, at p. 384)
The IEACA grants "shall be used for the design and implementation of programs that provide direct assistance, within the scope of the authorized practice of immigration law" primarily to amnestied aliens throughout the "earned" path to citizenship. (Id. at p. 384-86) Specifically, this section identifies the following tasks grant money may be used for to assist illegal aliens seeking amnesty:
- "screening" applicant's eligibility for RPI status;
- completing applications for RPI status, green cards, or citizenship;
- compiling "proof of identification, employment, residence, and tax payment;"
- compiling "proof of relationships of eligible family members;"
- applying for all applicable waivers, and
- "any other assistance that the Secretary or grantee considers useful to aliens who are interested in applying for registered provisional status." (Id. at p. 385)
The legislation, which was crafted behind closed doors in consultation with pro-amnesty special interest groups, appropriates $100 million for IEACA grants for the first five years and "such sums as may be necessary for fiscal year 2019 and subsequent fiscal years." (Id. at p. 392)
Barely two-days after the Gang of Eight introduced its 844-page amnesty bill in the early morning hours Wednesday, the Senate Judiciary Committee held its first hearing on the legislation.
Opening statements by the Committee's Chairman, Pat Leahy (D-VT) and Ranking Member Chuck Grassley (R-IA), underscored the tension created by Chairman Leahy's decision to rush the bill through the committee process. Nevertheless, Leahy insisted his actions were above board. "[E]very one of us will have plenty of time to analyze this bill before we actually start marking it up in May," said Sen. Leahy indicating he and his open borders colleagues felt three weeks was ample time for the public and his fellow senators to read and digest the nearly 850-page bill. (Bloomberg Government Transcript, Apr. 19, 2013)
On the other hand, Sen. Grassley's opening statement highlighted true immigration reformers' commitment to process and transparency, stressing the need for several hearings and sufficient time to discuss the legislation. "This is not something to be rushed," Sen. Grassley warned his colleagues. "We have a long road ahead of us to pass legislation to reform our immigration system. We cannot tolerate anything less than a transparent and deliberative process to improve the bill, because we thought we were doing that exactly that way in 1986, but we screwed up, and we can't afford to screw up again." (Id.)
Only two witnesses testified at Friday's hearing, Peter Kirsanow, a Commissioner on the U.S. Commission of Civil Rights, and Douglas Holtz-Eakin, President of American Action Forum. Homeland Security Secretary Janet Napolitano was initially scheduled to testify, but was forced to cancel her appearance as a result of last week's Boston Marathon tragedy. Though none at the hearing had time to fully read the legislation, witnesses focused on the overarching themes of amnesty and guest workers. (Id.)
In particular, Commissioner Kirsanow focused on the disparate impact low-skilled immigration — illegal and legal — has on minority communities. "[W]e have an oversupply of low-skilled labor relative to the demand, and that bodes ill for all workers in such class, particularly black Americans," he testified. "[R]esearch shows that 40 percent of the 18-point percentage decline in the employment rates of black males is attributable to illegal immigration. That's hundreds of thousands of blacks without jobs." (Id.)
Importantly, Commissioner Kirsanow pointed out the absurdity of granting illegal aliens amnesty and importing more foreign labor at a time when so many Americans are out of work. "We have 90 million people in the civilian population that aren't working right now that could work, and we're thinking about expanding the labor supply. Not to put too fine a point on it, but that's madness. We have too few jobs for way too many people," he asserted. Sen. Jeff Sessions (R-AL), seconded Kirsanow's point, "Colleagues, this is indisputable. We have more low-skilled labor than we can find jobs for today. This bill does not reduce the flow of low-skilled labor into America. It doesn't confront that problem." (Id.)
Chairman Leahy has already scheduled a second hearing on the amnesty legislation to take place today, Monday, April 22, featuring four witness panels. The line-up boasts a who's who of the open borders and pro-amnesty lobby, including Grover Norquist of Americans for Tax Reform, Janet Murguia of La Raza, and Arturo Rodriguez of the United Farm Workers. (Senate Judiciary Committee Website)
On April 10, 2013, the North Carolina House introduced HB 786, an omnibus immigration bill entitled the Reasonable Enactment of Comprehensive Legislation Addressing Immigration Matters in North Carolina (or known as the "RECLAIM NC Act"). HB 786 was filed by four House Republicans, Representatives Warren, Jordan, B. Brown, and Collins. Although the bill contains several good provisions that strengthen North Carolina law, there are other provisions in the bill that will only make North Carolina more desirable to illegal aliens.
For instance, Section 9(d) of HB 786 grants driving privileges or an ID card to illegal aliens. Under current North Carolina law, only persons lawfully present in the United States under federal immigration law may obtain a driver's license or ID card. The so-called "restricted drivers permit" and "restricted identification card" is available to any illegal alien who: (1) is unlawfully present in the U.S. in violation of federal immigration law; (2) submits to a criminal history check, including the submission of fingerprints; (3) submits a valid birth certificate, foreign passport, or federal tax documents; (4) has been a resident of North Carolina for at least one year prior to April 1, 2013; and (5) proves financial responsibility. (Section 9(d)(t)(1)-(5)).
The restricted drivers permit and ID card will be visually distinguishable from North Carolina's standard driver's license and ID card. The bill requires that the restricted drivers permit and ID card be in a vertical format and contain special identification numbers, an electronically readable print of the illegal alien's thumb, and a statement on its face declaring that the permit cannot be used for voter registration or public benefits and does not establish lawful presence. (Section 9(d)(u)(1)-(5)). Granting driver's licenses or ID cards to illegal aliens is fiscally unwise, rewards lawbreakers, conflicts with and frustrates the purposes and objectives of federal immigration law, will not significantly impact road safety or guarantee more insured drivers, and creates adverse consequences in other states.
HB 786 also weakens North Carolina's E-Verify law by prohibiting the state Department of Labor from holding a hearing, issuing any order, making any notification, or imposing any penalty under the North Carolina's E-Verify provisions if a violation or alleged violation was with respect to an employee who possesses a valid restricted drivers permit or a valid ID card. (Section 8(h)). As restricted driver's permits and ID cards are by definition only issued to persons who are unlawfully present in the United States and, therefore, not authorized to work under federal law (see 8 U.S.C. § 1324a), the exception swallows the rule and eviscerate North Carolina's E-Verify law.
The bill also redefines the term "employee" under North Carolina law to exclude seasonal workers. As a result, employers need not verify the immigration status of seasonal, intermittent, temporary, or day laborers employees. This provision does nothing more than create an exception for the worst violators of federal law who employ scores of illegal aliens. It's also a perverse incentive for employers to manipulate the terms of their employees' employment so as to avoid complying with North Carolina's E-Verify law.
Last Wednesday and Thursday, FAIR's annual Hold Their Feet to the Fire event brought 46 talk radio hosts to Washington, D.C., to discuss immigration. For two days, these hosts and numerous guests were able to provide listeners around the country the truth about the detrimental impact an amnesty and expanded immigration would have on most Americans.
Among the guests who appeared on radio row was Chris Crane, president of the union representing ICE officers who informed radio listeners around the country about the extent to which our immigration laws are being subverted by the Obama administration. In addition, a group of sheriffs from around the country appeared on radio and joined with FAIR activists in making visits on Capitol Hill.
Among numerous lawmakers who came by the event to discuss immigration policy was Sen. Marco Rubio (R-FL) and Rep. John Carter (R-TX), each Members of their respective Chambers' "Gangs of Eight," who answered tough, but respectful questions from several talk hosts on radio row.
This year's Hold Their Feet to the Fire also received extensive media coverage including stories in The New York Times, Wall Street Journal, USA Today, Politico and NPR.