FAIR Legislative Update December 17, 2012
Recent news reports have revealed Department of Homeland Security (DHS) officials delayed the apprehension of an illegal alien sex offender to protect longtime amnesty advocate, U.S. Senator Bob Menendez (D-NJ). (Associated Press, Dec. 14, 2012) The illegal alien sex offender — 18-year-old Luis Abrahan Sanchez Zavaleta who overstayed his visitor visa from Peru — worked for New Jersey Senator Bob Menendez (D) and was handling immigration issues in one of his local offices. (Id.)
Disturbingly, according to a U.S. official, DHS knew that Sanchez was a danger to the community, but nonetheless refused to act for roughly two months until after the November elections. In fact, local New Jersey authorities had contacted ICE agents in early October, informing them they suspected Sanchez was an illegal alien and sex offender. (Id.) The ICE agents then reached out to senior officials at DHS due to the high profile nature of the case, only to be told on several occasions to delay taking Sanchez into custody until after the election. (Id.) Sanchez was not arrested until December 6. (Id.)
According to a source close to the case, emails between senior DHS officials corroborate that the agency knew of the seriousness of the criminal activity and still refused to arrest Sanchez until after the November elections. Indeed, the source also revealed that Sanchez was found guilty on multiple counts of victimizing a child.
However, Senator Menendez downplayed the significance of the matter in an interview after the story went public. "Let's get clear," he told the reporter. "When you keep saying ‘working,' [he was] an unpaid college intern, so it's not like he's a staff paid person. We have a whole bunch of college interns..." (See MSNBC Interview, Dec. 12, 2012) The Senator also denied even knowing of the situation until moments before the interview and claimed his staff only learned of the arrest two days earlier. (Id.)
Astonishingly, Menendez used Sanchez as an example of why Congress must pass "comprehensive" immigration reform. He argued that the U.S. must get people "out of the shadows" in order to conduct criminal background checks on them to ensure such incidents do not happen again. (Id.) However, by his own admission, Menendez's staff could not have known of the sexual offense convictions against Sanchez because Sanchez was tried for them as a juvenile and juvenile offenses are sealed from the public. (Id.)
While the mainstream media and Members of Congress have largely remained mum on this latest DHS cover-up, House Subcommittee on National Security, Homeland Defense and Foreign Operations Chairman Jason Chaffetz (R-UT) sent a letter to DHS Secretary Janet Napolitano requesting information surrounding the incident. In particular, Rep. Chaffetz asked who at DHS told ICE agents not to apprehend Sanchez; whether the nearing November elections took part in the decision to delay apprehending Sanchez; and, for the number of illegal alien sex offenders currently residing in the United States. (Read the letter here)
FAIR President Dan Stein blasted the Department of Homeland Security and said the incident calls into question Secretary Napolitano's ability to lead DHS as the country's top immigration enforcement official. "There is now even greater doubt than before about whether Secretary Napolitano and those around her can be trusted to faithfully execute the responsibilities of their offices," decried Stein. "Based on the allegations of the ICE officers and strong evidence that DHS leadership interfered in a criminal arrest for political reasons, there must be a full and independent investigation." (See FAIR Press Release, Dec. 12, 2012; see also Fox News, Dec. 13, 2012)
According to the latest statistics released by U.S. Citizenship and Immigration Services (USCIS) late Friday afternoon, the Obama Administration has granted deferred action to 102,965 illegal aliens under the Deferred Action for Childhood Arrivals (DACA) program. (See USCIS December DACA Stats, Dec. 13, 2012) This number is nearly twice as much as last month's statistics, indicating the Administration had approved just over 53,000 applications. (See USCIS November DACA Stats, Nov. 16, 2012; see also FAIR Legislative Update, Nov. 19, 2012)
Despite such a dramatic increase in the number of illegal aliens approved for the program, the number of applicants rejected barely increased. In November, the number of applications rejected on procedural grounds at the intake level was 10,101 out of a total 308,935 applications received. According to the December stats, only 12,014 cases have been rejected on procedural grounds, while a total of 367,903 applications have been reported received.
Procedural grounds for denying a case at the intake level include a failure to sign forms or pay the appropriate filing fee. (See FAIR Legislative Update, Nov. 26, 2012; see also Filing Tips for Deferred Action for Childhood Arrivals, Nov. 19, 2012)
Disturbingly, the Administration still refuses to report on the number — if any — of applications rejected on substantive grounds. In a conference call last month, USCIS Director Alejandro Mayorkas said such data could not yet be provided due to the DACA program's "nascent stage." (See FAIR Legislative Update, Nov. 26, 2012)
Documents the Boston Globe obtained from U.S. Immigration and Customs Enforcement (ICE) reveal that immigration officials have freed over 8,500 aliens convicted of crimes such as murder and rape since 2008. (Boston Globe, Dec. 9, 2012) These releases are attributable mainly to the Supreme Court's ruling in Zadvydas v. Davis, in which the Court held that an alien who had completed his sentence but whose country of origin refused repatriation could not be detained indefinitely. (See Zadvydas v. Davis,533 U.S. 678 (2001)) Currently, over twenty governments worldwide refuse to repatriate criminal nationals from the United States. (Boston Globe, Dec. 9, 2012)
Of particular concern is the underhanded nature by which DHS carries out the process of releasing these criminal aliens. First, ICE rarely attempts to utilize protocols that would permit a criminal alien to be kept in custody longer. The Boston Globe's analysis of the ICE records reveal that of the thousands of criminal aliens ICE has released since 2008, there were only 13 instances where ICE attempted to petition the courts to lengthen a criminal alien's detention period on the grounds of the alien posing a danger to the public. (Id.)
In addition, ICE repeatedly refuses to disclose the names of released criminal aliens. According to ICE, the privacy of criminal aliens outweighs American citizens' need for awareness. DHS spokesman Matthew Chandler told the Boston Globe, "in the absence of any identified public interest or explanation as to how the disclosure of the arrestees' information will advance that interest, the personal privacy interests will prevail." (Id.)
According to the Boston Globe, ICE has expressly refused on over twenty occasions to provide the names of the criminal aliens who have been released since 2008. (Boston Globe, Dec. 9, 2012) The paper has nowfiled a lawsuit to continue its attempts to uncover the names of criminal aliens ICE has released. (Id.)
The nation's largest amnesty organizations gathered in Washington, D.C., Wednesday to issue a joint call for Congress to pass comprehensive immigration reform that includes a path to citizenship. (The Press Enterprise, Dec. 11, 2012) The groups attending the meeting in D.C. included the National Council of La Raza, America's Voice, League of United Latin American Citizens (LULAC), National Association of Latino Elected and Appointed Officials Educational Fund (NALEO), Service Employees International Union (SEIU), the Labor Council for Latin American Advancement, Hispanic Federation, Voto Latino, and Mi Familia Vota. (See La Raza press release, Dec. 12, 2012)
At a press conference, these amnesty organizations proudly demanded that Congress reward law-breaking by passing amnesty legislation. (McClatchy News Service, Dec. 12, 2012) "Our movement has been very clear: the centerpiece of broad reform is citizenship," said Frank Sharry, executive director of America's Voice. (Wall Street Journal, Dec. 13, 2012) He insisted that Republicans aren't going to successfully confront their political problem and risk further alienating Hispanics if they oppose citizenship. (Id.) The organizations also demanded that lawmakers grant illegal aliens citizenship as part of a large, "comprehensive" immigration reform bill instead of a series of smaller, targeted bills. (See The New York Times, Dec. 12, 2012)
The groups also demanded that Congress act now. According to La Raza President Janet Murguia, the November election was a "game changer" that provided Congress the mandate for bi-partisan amnesty legislation in 2013. (See The New York Times, Dec. 12, 2012) Stating that Latinos had demonstrated their power in the 2012 elections, she said: "We intend to continue to build that power. To grow that power. And now we intend to use it to advance comprehensive immigration reform." (McClatchy News Service , Dec. 12, 2012)
To pressure Congress, SEIU Secretary-Treasurer Eliseo Medina promised a "massive" grassroots campaign. "Failure is not an option," Medina said. "Comprehensive immigration reform is going to happen. Whether it will be over the political bodies of some of the current members of Congress, only they can decide." (The New York Times, Dec. 12, 2012)
Finally, these amnesty advocates warned that they will hold accountable those lawmakers who oppose amnesty. They promised to issue report cards on Members of Congress indicating their support for amnesty legislation. (Houston Chronicle, Dec. 13, 2012) "Make no mistake," said Mr. Medina, "[W]e will be watching." (The New York Times, Dec. 12, 2012)
In a complaint filed early last week in state court, a pro-illegal alien advocacy group, the state's largest union, and a Montana resident born in Canada sued Montana and several state officials as a result of the passage of Legislative Referendum 121 (LR-121). (See Complaint; see also Great Falls Tribune, Dec. 11, 2012). LR-121 denies state-taxpayer funded services such as state licenses, state employment, unemployment or disability benefits, and aid for university students to illegal aliens. The law also requires state agencies to notify the U.S. Department of Homeland Security of illegal aliens who have applied for state services. (LR-121).
In their lawsuit, the plaintiffs assail LR-121 on four grounds. First, they claim that Section 4 of LR-121 violates their fundamental right to privacy under Article II, Sections 3 and 10 of the Montana Constitution because it requires individuals to disclose their citizenship or legal immigration status to the state to obtain benefits.
Second, the plaintiffs claim LR-121 violates due process under Article II, Sections 3 and 17 of the Montana Constitution because they claim it grants discretion to state employees to determine who is an "illegal alien" and does not provide notice and opportunity for a hearing in the event that an applicant for services is classified as an "illegal alien" and denied services.
Third, the plaintiffs claim that LR-121 violates equal protection under Article II, Sections 4 of the Montana Constitution because it creates classes of similarly situated persons and treats them differently. "One class consists of persons who are United States citizens, lawfully present in Montana, and have readily-available proof of their citizenship status. The second class consists of persons who are United States citizens lawfully present in Montana, and do not have readily-available proof of their citizenship status, or for whom proof of their citizenship status may involve factual determinations and the application of federal law." (Complaint at pgs 17-19, 23). The plaintiffs also claim the law impermissibly treats lawfully admitted noncitizens who lawfully remain in the United States differently than unlawfully admitted noncitizens who remain lawfully in the United States by denying the latter state services.
Finally, the plaintiffs claim LR-121 is preempted by federal immigration law under the Supremacy Clause of the U.S. Constitution (U.S. Const., Art. VI, Cl. 2) because, they argue, the law both regulates immigration by creating classifications of aliens not defined in federal law such as "illegal alien" and conflicts with federal law by denying services to those who might have entered the United States unlawfully but have been granted permission toremainby federal law or presidential fiat.
The complaint asks the court to declare LR-121 unconstitutional and preliminarily and permanently enjoin its enforcement.
Representative David Howard, LR-121's drafter, says the measure is necessary to save tax dollars and discourage illegal aliens from making Montana their home. (Billings Gazette, Oct. 09, 2012). Montana citizens agreed, overwhelmingly approving the measure in the November election by nearly 80 percent. (See Montana Secretary of State's Official Election Results). Unless preliminarily enjoined by the court, LR-121 will take effect on January 1, 2013.
Six months after announcing plans to resume the Virtual Border Fence project, the U.S. Department of Homeland Security (DHS) is delaying its implementation.
DHS says an unexpectedly large applicant pool of contractors is to blame for the setback. According to a notice posted in October, DHS received "a larger number of proposals than originally estimated," which will "extend the schedule to complete the evaluation process." (See FedBizOps Integrated Fixed Towers Notice, Oct. 17, 2012) Customs and Border Protection had planned to have a contractor selected by Jan. 1, 2013, but has pushed the selection date back nearly a year to Oct. 1, 2013. (NextGov, Dec. 7, 2012)
This is DHS' second attempt at implementing a virtual border fence. The first attempt was in 2005 as a component of the Secure Border Initiative (SBInet). However, SBInet was aborted in 2010 after DHS Secretary Janet Napolitano declared the program chronically over budget and behind deadline. (DHS Press Release, Mar. 16, 2010; see also FAIR Legislative Update, Mar. 22, 2010) The Government Accountability Office (GAO) cited DHS's mismanagement of the program — specifically, lack of oversight and inconsistent test procedures — as a contributing factor to the project's demise. (GAO Testimony, Mar. 18, 2010)
Despite these problems, DHS initiated the second attempt of the Virtual Border Fence earlier this year, soliciting bids from companies who can produce existing technology including integrated fixed towers mobile surveillance systems, and long range imaging sensors. (SeeFAIR Legislative Update, Apr. 16, 2012)