FAIR Legislative Update January 22, 2013
After nearly a year of touting his ideas for immigration reform, pro-amnesty Senator Marco Rubio (R-FL) began releasing details of his legislative proposal last week. While he has not released specific language, Rubio's plan already consists of the typical open borders lobby reforms, running the gamut from a path to legalization for illegal aliens to increased legal immigration and worksite enforcement provisions. (Wall Street Journal, Jan. 14, 2013)
Sen. Rubio insists his proposal to legalize the roughly 11-12 million illegal aliens in the U.S. "is not blanket amnesty or a special pathway to citizenship." (Id.) Yet, to qualify under this proposal, Sen. Rubio described the exact same eligibility requirements found in the 2006 and 2007 amnesty bills. He said:
They would have to undergo a background check. They would be fingerprinted. They would have to pay a fine, pay back taxes, maybe even do community service. They would have to prove they’ve been here for an extended period of time. They understand some English and are assimilated. Then most of them would get legal status and be allowed to stay in this country. (Id.)
So long as illegal aliens meet the above criteria, Rubio says, they will be granted a temporary legal status that allows them to apply for permanent residency–and then citizenship—after several years. The green card waiting period, however, "would have to be long enough to ensure that it’s not easier to do it this way than it would be the legal ways," he said. (Id.)
And, like the 2006 and 2007 amnesty bills, Senator Rubio's plan places illegal alien minors–or so-called "DREAMers"–in a different category than the majority of illegal aliens. Under his plan, these aliens would be allowed to apply for amnesty through a separate application process, one that moves "in a more expedited manner than the rest of the population." (Id.)
Again, like the 2006 and 2007 amnesty bills, Sen. Rubio also indicated that his plan would increase legal immigration. Arguing the legal immigration system must be "modernize[d]," Rubio suggested either altering the current ratio of preferences for family-based immigration, or raising the overall ceiling on the number of investment and skills-based visas allocated annually. (Id.) However, he indicated he prefers increasing the number of skills-based visas, so as not to undermine family-based immigration. (Id.; see also interview with Bill O’Reilly on immigration, Jan. 17, 2013)
Finally, just like the 2006 and 2007 amnesty bills, Rubio indicated that his plan will increase the number of visas for permanent or seasonal farm workers, saying "the goal is to give American agriculture a reliable work force and to give protection to these workers as well." However, his proposal appears to ignore the fact that the H-2A agricultural guest worker visa is uncapped. (Id.)
Regarding immigration enforcement, Sen. Rubio's proposal appears to be lacking in true immigration reform measures. While the Senator apparently wants to include a mandatory worksite enforcement component, such as E-Verify, and Sen. Rubio acknowledges investing in people and infrastructure along the border is a necessary reform, he fails to require increased enforcement as a precondition to granting amnesty. (Id.)
Alarmingly, before even seeing detailed legislation and completely disregarding the roughly 22.5 million Americans unemployed or underemployed, key Members of the House of Representatives are voicing their support for Senator Rubio's plan. Notably, 2012 GOP vice-presidential candidate Rep. Paul Ryan (R-WI) was quick to climb aboard Sen. Rubio’s bandwagon. "Sen. Rubio is exactly right on the need to fix our broken immigration system," Rep. Ryan posted on his Facebook page. (The Hill, Jan. 17, 2013) "I support the principles he’s outlined: modernization of our immigration laws; stronger security to curb illegal immigration; and respect for the rule of law in addressing the complex challenge of the undocumented population." (Id.)
Rep. Ryan has also been discussing amnesty proposals behind the scenes with longtime amnesty advocate Rep. Luis Gutierrez (D-IL). (Id.)
On January 16, Chairman Pat Leahy (D-VT) announced that the Senate Judiciary Committee's agenda for the 113th Congress would include moving amnesty legislation. (Leahy Press Release, Jan. 16, 2013) Speaking at the Georgetown University Law Center, Chairman Leahy announced that he expects the Judiciary Committee to devote significant time this Spring to passing comprehensive immigration reform. "We must find a way through the partisan gridlock" to get a "Gang of 51" to pass an immigration bill that includes a pathway to citizenship, he told the crowd. (Id.; see Sen. Leahy Address)
Referring to comprehensive immigration reform as "meaningful change," Chairman Leahy omitted any specifics for the granting of amnesty to the estimated 11-12 million illegal immigrants currently living in the country. (Id.) Although the first scheduled committee hearing will be on gun control, Chairman Leahy announced that immigration hearings would soon follow. (Id.) Leahy pledged to seek input from Sen. Marco Rubio (R-FL) and Senators from Southern Border States, but declared that the Judiciary Committee will take the lead in drafting the legislation. (Sen. Leahy Address; see also FAIR Legislative Update, Jan. 14, 2013)
Chairman Leahy also announced that the Judiciary Committee agenda this year will include reintroducing the Violence Against Women Act (VAWA), which Congress failed to renew before the 112th Congress adjourned. "The first legislation I plan to move in the new Congress is [VAWA]," said Leahy. Although VAWA was created to increase protections for victims of domestic violence and rape, it has become a political tool for the open-borders lobby to increase visas and grant amnesty to illegal aliens. (FAIR Legislative Update, Mar. 19, 2012)
The Obama Administration has once again delayed the implementation of the REAL ID Act. Instead of enforcing the federal law, which was supposed to take effect January 15 of this year, the Department of Homeland Security (DHS) has granted at least a six-month "temporary deferment" to all states that have not yet met its requirements. (DHS Release, Dec. 20, 2012) Contrary to the REAL ID Act, this temporary deferment allows Federal agencies to continue to accept non-compliant driver's licenses and identification cards for boarding commercial aircraft and other official purposes. (Id.) This includes driver's license and ID cards issued to illegal aliens.
Passed in response to the 9/11 Commission's recommendations to increase document security, the REAL ID Act sets standardized rules for states to determine eligibility for driver's licenses. These requirements are designed to make it harder for terrorists to obtain fake IDs and close loopholes that make it easier for illegal aliens to live and work in the United States. (See FAIR REAL ID Fact Sheet) Specifically, the REAL ID Act prohibits residents from non-compliant states from using their state-issued IDs for official federal purposes, such as boarding commercial aircraft, entering federal buildings, or accessing nuclear facilities. (Id.)
This postponement marks the latest promise DHS has broken. In March of 2012, DHS Assistant Policy Secretary David Heyman told the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security that DHS "[had] no plans to extend the [January 15] deadline." (Bloomberg Government, Mar. 22, 2012; see also FAIR Legislative Update, Mar. 26, 2012)
The deferment is different from previous delays in that DHS has refused to announce a new compliance deadline for the states. Completely ignoring the will of Congress, DHS announced at some point in the future it would create a "a schedule for the phased enforcement of [REAL ID]'s statutory prohibitions to ensure that residents of all states are treated in a fair manner." (DHS Release, Dec. 20, 2012) At the earliest, "DHS expects to publish a schedule by early fall 2013," but also vaguely stated that implementation would occur at the indefinite time of "a suitable date thereafter." (Id.)
As of December 18, only thirteen states were found to be in compliance with the requirements of the REAL ID Act. (Id.) This latest delay by DHS is the fourth since Congress enacted the REAL ID Act in 2005.
Department of Homeland Security (DHS) internal documents confirm that officials delayed arresting pro-amnesty Sen. Bob Menendez's (D-NJ) illegal alien sex offender staffer until after the November elections. (Associated Press, Jan. 15, 2013) The illegal alien sex offender–18 year-old Luis Abrahan Sanchez Zavaleta, who overstayed his visitor visa from Peru – worked on immigration issues at one of the Senator's New Jersey offices.(Id.; see also FAIR Legislative Update, Dec. 17, 2012)
Shockingly, at the time the Associated Press (AP) reported the delayed arrest, DHS decried the story as "categorically false."(Associated Press, Jan. 15, 2013) The unnamed U.S. official cited in the original AP story claimed DHS had instructed federal agents to delay Sanchez's arrest until after Election Day. (Id.) Assistant DHS Secretary Nelson Peacock, however, vehemently rejects the allegation that the delay was "for political purposes." (Id.) However, the internal documents, which were released after Ranking Member Chuck Grassley (R-IA) and six other Republicans on the Senate Judiciary Committee demanded answers from the White House, confirm the AP's report that the delay was for political gain. In fact, immigration agents were prepared to arrest Sanchez on October 25, two weeks before the election, but ICE officials in Washington ordered the delay, claiming the arrest "had the possibility of garnering significant congressional and media interest." (Id.)
Disturbingly, police records reveal that then-15 year old Sanchez was arrested in 2009 on aggravated sexual assault charges. (Id.) Accused of sexually assaulting an 8 year-old boy at least eight times, he was sentenced to two years' probation and required to register as a sex offender. (Id.) Sanchez, however, did not update his sex offender registration and applied for the Obama Administration's Deferred Action for Childhood Arrivals (DACA) backdoor amnesty program, which would have allowed him to legally stay in the country and work for two years. (Id.; see FAIR Legislative Update, Nov. 19, 2012; see also FAIR Legislative Update, Nov. 26, 2012) The DHS documents establish that immigration officials were aware Sanchez applied for DACA but further delayed arresting him until Citizenship and Immigration Services formally denied his application. (Associated Press, Jan. 15, 2013) Sanchez did not disclose his arrest or sex offender status on the application. (Id.)
Although the internal documents fill in some of the gaps, many questions remain unanswered. Primarily, DHS failed to explain the department's review process of potentially sensitive, high profile immigration cases when arrests are delayed. (Id)
Sanchez, who was eventually arrested on December 6, has since been released from an immigration jail and is facing deportation. (Id.)
The North Carolina Attorney General (AG) issued an opinion last week that recipients of President Obama's backdoor amnesty program called Deferred Action for Childhood Arrivals (DACA) are eligible to receive a North Carolina driver's license. In issuing his opinion, the AG reasoned that DACA recipients, although not possessing legal status, "are lawfully present in the United States during the period of deferment" and North Carolina law expressly provides that lawfully present persons are eligible for a driver's license. (NCAG Opinion at 3). In reaching his conclusion that DACA recipients are "lawfully present," the AG relied on the U.S. Citizenship and Immigration Service's (USCIS) "Frequently Asked Questions" page on its website regarding DACA and an expert report and declaration filed by former Immigration and Naturalization Service General Counsel Bo Cooper in the Arizona litigation regarding SB 1070. (See USCIS DACA FAQs, updated Jan. 18, 2013)
The North Carolina Division of Motor Vehicles (DMV) initially refused to grant driver’s licenses to DACA recipients who, by definition, are in the United States illegally. (News Observer, Jan. 18, 2013). Several DACA recipients snuck through the system, but received a letter this month from acting DMV Commissioner J. Eric Boyette stating that their driving privileges were being revoked. (Id.).
By late Thursday, Boyette said DMV officials were reviewing the AG's opinion, but had not formulated a response. (Id.) Boyette gave no indication as to whether the DMV would change its policy of denying driver's licenses to DACA recipients. (Id.) As of Friday afternoon, the DMV had not revised the page on its website that lists acceptable documents noncitizens can utilize to prove North Carolina residency. According to the list, DMV officials are still expressly barred from accepting DACA work permits. (DMV list of acceptable documents). According to the AG's website, AG opinions "do not have the full effect of law or court order," but "provide the State's interpretation of the legal question presented." (AG website). As a result, the DMV maintains discretion whether to follow the AG's advice.
Prohibiting DACA recipients from receiving driver's licenses is good public policy for several reasons. First, DACA is, by nature, a temporary status that is subject to termination by the Department of Homeland Security at any time. States have a legitimate interest in restricting DACA individuals from receiving driver’s licenses because they may not be accountable for any fiscal damage they accumulate while driving on state roads, as they may be subject to removal at any time.
Second, granting a driver's license treats DACA recipients as if they are legal residents. If the Obama Administration (or subsequent administrations) does not renew DACA or Congress acts to invalidate it, having a state issued driver’s license will help DACA recipients to stay in the United States, work, and possibly vote, illegally.
Next, a driver's license is a state benefit. Issuing driver's licenses to DACA recipients, i.e., illegal aliens, rewards illegal behavior and only encourages more illegal immigration.
Finally, providing driver's licenses to DACA recipients also increases national security risks. Unlike aliens who receive temporary protected status and other classes of lawfully present aliens recognized by federal statute, DACA applicants are not subject to as stringent background checks, are not required to undergo face-to-face interviews, and are permitted to submit uncertified documents in order to receive deferred action. With a driver license granting access to air travel and federal buildings, this creates a massive security risk.
Currently, Arizona, Iowa, Michigan and Nebraska prohibit driver's licenses to DACA recipients, while California, Texas and Florida grant the licenses. Each state must decide the issue for itself. Ian Grossman, vice president of the American Association of Motor Vehicle Administrators, reportedly 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).
The White House confirmed last week that Janet Napolitano will remain in her position as Secretary of Homeland Security as President Obama begins his second term in office. (Politico, Jan. 14, 2013) Sec. Napolitano is expected to continue to be a key leader in President Obama's upcoming amnesty efforts. She was responsible for issuing the June 15, 2012 policy directive granting blanket backdoor amnesty to illegal aliens under the age of thirty-one. (See Deferred Action for Childhood Arrivals Memo) She has also been steadfast in her support for the DREAM Act and amnesty over immigration enforcement, and continues to argue that the border is more secure than ever.