FAIR Legislative Update December 3, 2012
In its lawsuit, the ACLU challenges the executive order on two grounds. First, the complaint alleges that Governor Brewer's executive order is preempted by federal immigration law under the Supremacy Clause of the U.S. Constitution (U.S. Const., Art. VI, Cl. 2) because:
- it implements policies that regulate immigration by "creating a new, state-based classification of non-citizens that treats DACA residents as though they were unauthorized and unlawfully present;"
- it implements policies that regulate immigration by imposing "immigration-related burdens and penalties on non-citizens whose presence in the US is authorized by the federal government, and in a manner not contemplated by federal law;" and
- it "frustrates and serves as an obstacle to federal immigration law, goals, and policies of authorizing DACA recipients to live and work in the US, to come out of the shadows, and to participate as full members of our nation's communities."
Second, the complaint alleges that Governor Brewer's executive order violates the Equal Protection Clause of the U.S. Constitution (U.S. Const. amend. XIV) because it treats other deferred action recipients and other classes of lawfully present grantees, like temporary protected status grantees, differently than the similarly situated DACA grantees.
The complaint asks the federal court to declare Governor Brewer's executive order unconstitutional and preliminarily and permanently enjoin its enforcement.
Governor Brewer has defended her executive order as necessary to uphold an Arizona state law that prohibits the granting of state benefits to illegal aliens. (Executive Order 2012-06) Brewer reasons that because the DACA program "does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants," granting driver's licenses, i.e., a state benefit, to DACA grantees would violate Arizona law. (Id.)
The Obama Administration has yet to weigh in on the lawsuit, but earlier this year Administration officials reportedly stated that it is up to the states to decide whether to allow DACA grantees to receive driver's licenses. (The Lookout, Aug. 16, 2012; see also CBS5AZ.com, Aug. 15, 2012) Similarly, Ian Grossman, vice president of the American Association of Motor Vehicle Administrators has stated, "[t]he consensus is that well, we have our rules of who's eligible for a license... At the end of the day, it's a state-issued document, and the state has the authority to determine who is eligible for that document." (CNN, Aug. 22, 2012)
Last week, the House of Representatives passed H.R. 6429, legislation that would repeal the visa lottery and transfer those 55,000 green cards to aliens with STEM degrees from U.S. universities. The bill, authored by House Judiciary Chairman Lamar Smith (R-TX), passed by a vote of 245-139. (See Roll Call Vote #613) While the yeas and nays fell largely along party lines, interestingly 48 members did not vote. (Id.)
The outcome of the vote no doubt represents the mix of good and bad provisions in the bill. While H.R. 6429 at first appeared to be a welcome shift from unskilled to skilled immigration, FAIR opposed the bill because that change came entirely at the expense of American students. First, through the creation of a new student visa program, the bill encourages an unlimited number of foreign students to attend U.S. universities and major in STEM fields. It then offers up to 55,000 green cards to those foreign students who obtain PhDs or Master's degrees in STEM fields. Thus H.R. 6429 creates competition for American students of math and science both during the admissions process and then upon graduation. To make matters worse, the bill grants the Department of Homeland Security discretionary authority to waive labor certification provisions designed to ensure that foreign workers do not displace Americans. (See FAIR Press Release, Nov. 27, 2012; FAIR Legislative Update, Nov. 26, 2012)
Friday's vote was the second time in three months that the House had voted on H.R. 6429. In September, the bill received 257 votes in favor and 158 against, but did not pass because it arrived on the floor via the Suspension Calendar, which requires a two-thirds majority for passage. (See Roll Call Vote #590) After the bill failed, the authors changed the bill to attract more votes, but ended up only making the bill worse. One change was the elimination of a provision that banned universities from paying recruiters of foreign students on a per-student basis. Another was the resurrection of the V visa program, which accelerates immigration into the U.S. by allowing green card holders who marry after they arrive to circumvent the normal waiting lines to bring in spouses and minor children. (See FAIR Legislative Update, Nov. 26, 2012 for more detail on these provisions)
But both times, Democrats voted against the bill not because it hurts American students, but because they want to preserve the visa lottery and incorporate any new immigration measures into a "comprehensive" immigration reform bill next spring. (See The Hill, Nov. 30, 2012) This week, the White House similarly said it would not support any incremental immigration legislation. (Id.) Based on these objections, several political observers are now calling the STEM bill dead on arrival in the Senate, even if there is an attempt to bring the bill up for a vote on the Senate floor. (See National Journal, Dec. 2, 2012)
Last Tuesday, Republican Senators Kay Bailey Hutchison (R-TX), Jon Kyl (R-AZ), and John McCain (R-AZ) introduced their version of the DREAM Act, which would grant amnesty to illegal aliens up to the age of thirty-two. (View Hutchison-Kyl press conference here, Nov. 27, 2012) Called the "ACHIEVE Act," S. 3639 creates a new, tiered nonimmigrant visa program, the W-visa, that puts illegal aliens on a path to a green card and subsequent citizenship. (Roll Call, Nov. 27, 2012)
Under the Republican plan, illegal aliens would be eligible for a W-1 visa if they:
- have either:
- completed high-school and are admitted to college or earned a college degree, or
- completed high school and are enlisted in or have completed four years of military service,
- have entered the country before the age of 14,
- have lived in the U.S. continuously for five years,
- have not committed a felony, two misdemeanors with a jail term of over 30 days, or a crime of moral turpitude,
- are not subject to a final order of removal ,
- pay a $525 fee, and
- are under the age of 28 (or 32 if they have a bachelor's degree from a U.S. university).
Once an illegal alien receives a W-1 visa, the alien has six years to obtain a bachelor's, associate's, vocational/technical, or graduate degree, or to complete four years of military service. If the alien meets this threshold, the alien is then eligible for a W-2 visa. Under a W-2 visa, an alien must then either maintain employment for 36 months, or be enrolled in or complete a graduate degree program within four years.
Then, after the four-year period is up, an alien who has fulfilled the requirements of a W-2 visa becomes eligible for a W-3 "permanent nonimmigrant" visa. Although the authors of the ACHIEVE Act say it does not provide a special pathway to citizenship, the W-3 is renewable indefinitely in four-year increments, and its recipients are free to adjust status to a green card via pathways already set up under current law.
In addition to the above provisions, S. 3639 creates a special path to a green card for aliens on a W-1 visa who have served four years in the military and are honorably discharged. Those aliens may bypass the W-2 and W-3 visa programs and directly apply for legal permanent residency through a process to be determined by the Secretary of Homeland Security in regulations.
The Senate authors of the ACHIEVE Act complimented their own work. "Only those who have abided by our nation's laws, while residing within its borders, would be eligible for continued legal status….," reads a joint statement by Sens. Hutchison and Kyl. (See Sens. Hutchison and Kyl Press Release, Nov. 27, 2012) "We have attempted to accommodate those with the ambition to pursue useful educational degrees, or serve in the U.S. military," it continued. (Id.)
Sens. Hutchison and Kyl said that Florida GOP Senator Marco Rubio, who has been touting but not revealing his own plan for months, provided input on the proposed legislation. Rubio's spokesman, Alex Conant, confirmed that while the Senator supports the idea behind the ACHIEVE Act, he is still working on his own version. "Senator Rubio is still developing his own alternative to the Dream Act," said Conant. "[H]e intends to introduce it in the new Congress, once he is confident it will win broad bipartisan support and be signed into law." (NBC Latino, Nov. 27, 2012)
During the first week of the lame duck session of Congress, House lawmakers passed three pieces of legislation to boost border security and increase DHS accountability. The House voted on all of the bills under a suspension of the rules, limiting debate and requiring a two-thirds vote.
First, the House passed the Mandatory Operational Control Reporting and Performance Measures Act, H.R. 6025 by voice vote. This bill requires the DHS Secretary to update Congress on the number of miles of land and maritime border that are under operational control. (See H.R. 6025 at § 2) The bill also requires the Secretary to report to Congress on the estimated number of unlawful entries along land and maritime borders of the United States using the same methodology and terminology as was used during fiscal years 2008 to 2010 to guarantee consistency in reporting methods. (Id.)
Next, the House also passed the DHS Accountability Act, H.R. 5913, by voice vote. H.R. 5913 establishes an independent advisory panel to assess DHS's management structure. (See H.R. 5913 at § 3) The panel would be required to submit a one-year and two-year report to Congress assessing the following:
- The effectiveness of DHS management in carrying out functions such as financial management, employee management, performance measurement, risk management, and other functions.
- Any redundancies in the current management structure.
- Management of key homeland security missions.
- Reduction of waste and duplication of efforts. (Id. at §§ 5, 7)
Both H.R. 6025 and H.R. 5913 have been sent to the Senate for further consideration.
Finally, the House passed the Jaime Zapata Border Enforcement Security Task Force Act, H.R. 915, 397 to four. (See H.R. 915 Roll Call Vote, Nov. 27, 2012) Named after Immigration and Customs Enforcement (ICE) Agent Jaime Zapata, who was brutally gunned down by a Mexican drug cartel, H.R. 915 was introduced by Rep. Henry Cuellar (D-TX) to provide a statutory framework for the existing Border Enforcement Security Task Force (BEST) program. BEST is an initiative designed to facilitate communication and mutual assistance between agencies at different levels of government. (See H.R. 915 at §3) H.R. 915 was amended and passed by the Senate in September and now goes to the President for his signature.
If any of these three bills are not signed by the President by December 31, they will be considered "dead" and must be re-introduced in the next session of Congress.
The Illinois Senate Executive Committee approved a bill (SB 957) which would allow as many as 250,000 illegal aliens to receive an Illinois driver's license. (Chicago Tribune, Nov. 30, 2012) The bill breezed through committee by a vote of 12-2 on Thursday. News reports indicate that SB 957 is likely to pass the full Senate next week. The bill would grant driving privileges to illegal aliens but prohibit the license from being used as a form of identification.
If passed, Senate Bill 957 would permit the state to issue temporary driver's licenses to illegal aliens who: (1) have lived in the state for at least one year and establish identity through either a consular ID or valid foreign passport. (Section 6 (a-5)) The bill further provides that a temporary driver's license would expire three years from the date of issuance shall not be accepted as a valid form of identification. (Section 6(b))
Some of Illinois' most prominent political leaders are pushing for passage of the bill as a way to "make the state's road's safer." (NBC Chicago, Nov. 20, 2012). Those in favor of providing illegal aliens with driving privileges include Governor Pat Quinn, Mayor Rahm Emanuel, Senate President John Cullerton, House Republican Leader Tom Cross and former governors Jim Edgar and James Thompson. (Huffington Post, Nov. 30, 2012)
Other supporters claim the bill will increase the number of driver's with insurance. Advocate Ald. Danny Solis stated that, "Those people need to have a driver's license so they can have insurance so that when they are on our highways, and possibly get into an accident, everybody's protected." (Id.) Opponents of granting driver's licenses to illegal aliens say not so and cite to the State of New Mexico — one of only two states that grants driver's licenses to illegal aliens —which has the second-highest rate of uninsured drivers in the United States. (Fox News Latino, Sep. 9, 2012)
Opponents of the bill argue that despite the bill's language, the temporary license would become a de facto form of identification. Senator Dale Righter pointed out the "Catch-22s" of the legislation in that, "You want to find out who it is you're dealing with, but that document's not supposed to be used to tell you who you're dealing with." (Chicago Tribune, Nov. 30, 2012)
Granting driver's licenses to illegal aliens is bad public policy and repugnant to federal immigration law. It treats them as if they are legal residents and facilitates their continued illegal presence. Providing identification and driving privileges to illegal aliens only enables the illegal aliens to continue to live, work, and vote in states unlawfully.
If SB 957 becomes law, Illinois would be one of three states that provide driver's licenses to illegal aliens — along with New Mexico and Washington State. California also recently passed a law to allow illegal aliens who are granted deferred action under the Obama Administration's Deferred Action for Childhood Arrival (DACA) program to obtain California driver's licenses. (FAIR Legislative Update, Sept. 4, 2012; California AB 2189)
The Illinois Senate is expected to vote on SB 957 next week. If it passes, it will be sent to the state House, which will likely take up the measure in early January.
Rep. Gingrey Challenges the Granting of Social Security Numbers to Illegal Aliens with Deferred Action Status
Earlier this month, Rep. Phil Gingrey (R-GA) challenged the Obama Administration's decision to award Social Security Numbers to alien beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program. In a letter to Social Security Administration (SSA) Commissioner Michael Astrue, Rep. Gingrey wrote: "[I]t is still unclear what level of documentation will be required and what level of background checks are being conducted on the documents and the applicants. Due to this ambiguity, I call into question the wisdom of providing Social Security numbers to these petitioners," the letter reads. (Id.) (Rep. Gingrey letter to Commissioner Astrue, Nov. 14, 2012)
The letter asks the Commissioner a series of questions intended to shed light on the Administration's process of handing out SSNs to illegal aliens under DACA. Some of the questions include:
- How many DACA immigrants, to date, have received SSNs?
- What criteria do you use to determine which approved DACA applicants will be awarded SSNs? Under what circumstances will an individual be denied a SSN?
- Do you have a system in place to indicate that these recipients of SSNs are DACA applicants, thereby signifying they are neither citizens nor lawful residents?
- Given that DACA-approved immigrants could be subject to deportation after two years, will they keep their SSNs? If so, how will you prevent fraud or abuse...? (Id.)
The Obama Administration has asked for an extension of its November 30 response deadline as requested in the letter. As of November 15, Georgia ranks ninth among states for the highest number of illegal aliens applying for backdoor amnesty under the program. (See USCIS DACA Stats, Nov. 16, 2012)