FAIR Legislative Update July 3, 2012
Lost in the media frenzy surrounding President Obama's decision to administratively implement the DREAM Act is the Administration's plans to also grant a reprieve to the illegal alien parents who brought them here in violation of U.S. immigration law. In doing so, the Administration is directly contradicting its own public relations campaign — and that of amnesty advocates nationwide — which has portrayed its new policy as a way to provide "a degree of relief" to "innocent young kids." (See White House transcript, June 15, 2012; to read more about the President's "deferred action" policy, see FAIR's Legislative Update, June 19, 2012)
The Administration's decision to not deport the illegal alien parents of so-called DREAMers was revealed by Homeland Security Secretary Janet Napolitano during a CNN interview. Here is the exchange between CNN Anchorman Wolf Blitzer and Secretary Napolitano:
BLITZER: What about the parents of these children? The children come forward now, they identify themselves. Should the parents be concerned that potentially they could be deported? They would now be identified as illegal immigrants.
NAPOLITANO: No. We are not going to do that. We have internally set it up so that the parents are not referred for immigration enforcement if the young person comes in for deferred action. However, the parents are not qualified for deferred action. This is for the young people who meet the criteria that we've set forth. (CNN transcript, June 15, 2012)
While Napolitano makes the distinction that the illegal alien parents will not qualify for "deferred action," the Administration's decision not to deport them essentially amounts to the same thing. The only major difference is that if the Department of Homeland Security simply administratively closes the parents' cases, it is uncertain whether it will grant the parents work authorization.
As if the President's new deferred action policy were not troubling enough itself, the decision not to deport the illegal alien parents of DREAMers could triple the number of illegal aliens who benefit from it. Excluding parents, the Pew Hispanic Center estimates that at least 1.4 million illegal aliens would qualify for deferred action under the President's new program. (See Pew Hispanic Center report, June 15, 2012) But with the Administration's acknowledgment that it will no longer deport the illegal alien parents of DREAMers, the size of the President's amnesty program could triple, or perhaps even quadruple, when fraudulent applications are taken into account.
Although media outlets reported last week that Arizona's immigration enforcement law, SB 1070, was gutted by the U.S. Supreme Court, most of the law — and importantly the core of the law — still stands and is now law in Arizona. As a guide to our readers, FAIR has prepared a summary of the sections of SB 1070 that are still in effect, and those that the courts have enjoined.
The key provisions of SB 1070 that still stand as law include:
- §1, which makes attrition through enforcement the policy of Arizona.
- §2(A), which prohibits any jurisdiction in Arizona from restricting the enforcement of federal immigration law to anything less than the full extent permitted by federal law.
- §2(B), the provision upheld by the Supreme Court, requires local law enforcement officials to make a reasonable attempt during a lawful stop, detention, or arrest to inquire about the individual's immigration status if the officer has reasonable suspicion to believe that the individual is an illegal alien.
- § 2(C), which requires state officials to notify U.S. Immigration and Customs Enforcement or the U.S. Customs and Border Protection upon releasing an illegal alien who has been imprisoned, essentially requiring all local jails to honor ICE detainers.
- §2(D), which authorizes local law enforcement agencies to transport illegal aliens in custody to the custody of federal officials located either inside or outside of the state.
- §2(F), which prohibits policies that restrict information sharing of immigration data for the various purposes, including determining eligibility for benefits, compliance with alien registration laws, and verifying claims of domicile/residence.
- §2(H), which allows legal residents of Arizona to file lawsuits to force Arizona government agencies to comply with the requirements of SB 1070.
- §5 (portions of), which prohibits the harboring and transporting of illegal aliens.
- § 9(A), which requires employers to maintain records of E-Verify eligibility verification of employees;
- §10, which requires the impoundment or forfeiture of vehicles used for transporting illegal aliens; and
- §11, which creates the Gang and Immigration Intelligence Team Enforcement Mission Fund.
The sections of SB 1070 that are enjoined include:
- §3, which creates a state offense of failure to comply with federal alien registration laws;
- § 5(A) and (B), which prohibit the solicitation of work at day labor centers if such solicitation impedes traffic. This was enjoined through a different lawsuit, Friendly House v. Whiting, No. 10-1061 (D. Ariz. Feb. 29, 2012).
- §5(C), which prohibits illegal aliens from soliciting work; and
- §6(A), which authorizes local law enforcement officers to conduct warrantless arrests of aliens if the officer has probable cause to believe the alien has committed a deportable offense.
(See engrossed version of SB 1070)
Aware that most of SB 1070 is in effect, the amnesty advocacy organizations have launched a multi-million dollar program to dismantle those provisions still left standing. (Roll Call, June 26, 2012) In particular, they hope to stop other states from enacting laws similar to SB 1070. (Id.) The ACLU alone has pledged to spend $8.7 million fighting laws that call on police to check the immigration status of people they stop. (Id.)
In a clear effort to undermine the Supreme Court ruling that upheld the heart of Arizona's SB 1070, the Obama Administration last Monday rescinded several of Arizona's 287(g) Task Force agreements. (CNN, June 25, 2012) News that the Administration was rescinding the agreements came only a few hours after the U.S. Supreme Court handed down its decision in Arizona v. U.S.
The 287(g) program, which has been under constant attack by the Administration, allows U.S. Immigration and Customs Enforcement (ICE) to "deputize" or cross-designate state and local law enforcement officers to act as immigration agents within their jurisdictions. (INA § 287(g); 8 U.S.C. 1357(g)) Opponents of immigration enforcement have especially objected to the Task Force model agreements within the 287(g) program because they allow officers participating in criminal task forces (such as drug or gang) to proactively respond to, identify, and remove illegal aliens anywhere within the law enforcement agency's jurisdiction. (See OIG-11-119, p. 7, Sept. 2011)
The Administration's announcement to cancel Task Force agreements in Arizona only hours after the Supreme Court upheld Section 2(B) of Arizona's SB 1070 was an unmistakable move to undermine routine immigration enforcement in the state of Arizona. Section 2(B) requires law enforcement agents to take reasonable steps to verify the immigration status of those they lawfully stop or detain if they have reasonable suspicion to believe they are in the country illegally. (Read more about the decision here) By taking trained immigration officers off of the streets in Arizona, the Administration signaled it has no intention of cooperating with Arizona in its attempt to enforce U.S. immigration law and will only do the minimum that is required by federal statute.
This sentiment was plain from statements accompanying the Administration's announcement. A Department of Homeland Security (DHS) official told reporters, "ICE  has determined that the 287(g) task force agreements that have been in place with state and local law enforcement in Arizona are no longer necessary. Today, those state and local law enforcement agencies have been notified that ICE is rescinding their 287(g) task force agreements." (Homeland Security Today, June 26, 2012)
Arizona Governor Jan Brewer strongly criticized the President's decision to cancel Arizona's Task Force 287(g) agreements for its political underpinnings. "I suppose I shouldn't be surprised," responded Arizona Gov. Jan Brewer, who has fought tirelessly to defend her State's law. (Gov. Brewer Press Release, June 25, 2012) "Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court's ruling upholding the constitutionality of the heart of  SB 1070…68 law enforcement entities in 24 states have functioning 287(g) agreements with the federal government. But it appears the only agreements eliminated today were those in Arizona." (Id.)
Evidencing a broader attack on the 287(g) program, the day after the Supreme Court decision Gov. Bob McDonnell announced the Administration's denial of his request for Virginia State Police officers to be deputized under the 287(g) program. (Washington Examiner, June 27, 2012) "I'm incredibly disappointed with the Obama Administration," Gov. McDonnell told reporters. "We must retain the right to remove the most dangerous illegal aliens from our borders, and 287(g) agreements have been approved across the country for that purpose." (Id.)
The Administration's rescission of 287(g) Task Force agreements in Arizona and its refusal to implement it in Virginia appears to be part of a larger plan to scrap the program entirely. In his FY 2013 budget, the President proposed slashing the program by $17 million (or roughly 25 percent). (See DHS FY 2013 Budget-in-Brief p. 25)
Although the House of Representatives has clearly repudiated the President's Homeland Security budget, and voted to restore all funding for the 287(g) program, the President has shown through his actions this week that his Administration is nonetheless going ahead with its plan to dismantle 287(g) by discontinuing task force agreements and refusing to consider new requests to join the program by local law enforcement agencies. (Id.; FAIR Legislative Update, June 12, 2012)
On Thursday, the House of Representatives passed two bills to help bolster U.S. border security.
The first bill, the Securing Maritime Activities through Risk-based Targeting (SMART) Port Security Act (H.R. 4251), was introduced by Rep. Candice Miller (R-MI), Chairman of the House Homeland Security Subcommittee on Border and Maritime Security. H.R. 4251 aims to increase information sharing and efficient use of technology within the Department of Homeland Security, and between federal, state, and local governments and the private sector, in an effort to improve maritime and aviation security at U.S. ports of entry.
In addition, H.R. 4251:
- Requires the DHS Secretary to report to Congress on the vulnerability of U.S. maritime borders to attacks by small marine vessels. (§110)
- Requires the DHS Secretary to submit a plan to Congress detailing the best staffing levels for Customs and Border Protection personnel to carry out all necessary border security functions. (§111)
- Authorizes $4 million to create a new joint program with Canada, the Integrated Cross-Border Maritime Operations Program, to coordinate security along the U.S.-Canada maritime border. The program will include training on detecting illegal border-crossing activity as well as increased sharing of information between the two countries. (§112-113)
- Establishes a pilot project for unmanned aerial vehicles along the northern border for border and maritime security missions. (§114)
- Secures the Transportation Worker Identification Credential (TWIC) against use by illegal aliens, by requiring the DHS Secretary to provide a list of acceptable documents that guarantee TWIC eligibility. (§207) TWIC is a biometric card used by individuals such as port facility employees, merchant mariners, and truck drivers to gain access to secure areas of ports or vessels. (Read more about TWIC here)
The second border security-related bill the House passed is H.R. 4005, the Gauging American Port Security (GAPS) Act, introduced by Rep. Janice Hahn (R-CA). This legislation requires the Secretary of Homeland Security to submit to Congress a report on any existing gaps or weaknesses in U.S. port security, as well as a plan for addressing such gaps. (H.R. 4005 at § 2) The Secretary is also required by this bill to share information and plans to address weaknesses with federal agencies, as well as state, local, and tribal governments, and port system owners and operators. (Id. at § 3)
Calling the Obama Administration's latest use of prosecutorial discretion to grant blanket amnesty to certain illegal aliens "illegal," Rep. Lou Barletta (R-PA) sent a letter to two key House committee chairmen last week urging them to hold oversight hearings on the executive's circumvention of Congress. (See Rep. Barletta Press Release, June 27, 2012)
"I respectfully request that your Committees use their investigatory powers to determine the legality of the DHS decision to use so-called ‘prosecutorial discretion' to deliberately ignore the immigration status of certain individuals and subsequently issue [them] work permits…" read Rep. Barletta's letter to Lamar Smith (R-TX) and Peter King (R-NY), Chairmen of the House Judiciary and Homeland Security Committees, respectively. (Read the letter here, June 26, 2012)
In arguing that the executive branch does not possess the authority to decline to prosecute illegal aliens it determines is not an enforcement priority, Rep. Barletta contends that federal law instead requires immigration officers to place them in deportation proceedings. Specifically, the letter explains how the following provisions of federal law, when read in conjunction with one another, require such action:
- 8 U.S.C. § 1225(a)(1) defines unlawfully present aliens as "applicants for admission" to the United States.
- 8 U.S.C. § 1225(b)(2)(A) requires immigration officers to place aliens they deem to be "applicants for admission"—or unlawfully present—in removal proceedings. This section specifically provides that, "In the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title." (emphasis added)
- 8 U.S.C. § 1229a refers to deportation (or "removal") proceedings held in U.S. immigration courts.
(Id.; see also NY Post Op-Ed by Kris Kobach, June 21, 2012)
Rep. Barletta echoed the points in his letter in a speech on the House floor, in which he strongly criticized President Obama for intentionally overreaching his constitutional authority. Citing a March 2011 statement the President made during a Univision town hall meeting in which he acknowledged he lacked the authority to unilaterally change immigration law, Rep. Barletta demanded to know what has changed in the last year to make President Obama believe he suddenly possessed such authority. "In the last 15 months, did Congress grant the president new powers? I don't remember doing that. Fifteen months ago, President Obama said he cannot ignore congressional mandates, but suddenly, two weeks ago, he can?" questioned Rep. Barletta. "That's why these two committees must hold formal hearings and investigate this claim of discretion in the unilateral rewriting of federal immigration policy." (See Rep. Barletta Press Release, June 27, 2012; see also video of floor speech here)
In the latest development in the Jaime Zapata Border Enforcement Security Task Force Act (H.R. 915), the Senate Committee on Homeland Security and Government Affairs amended the House-passed legislation during a markup last week.
H.R. 915, introduced by Rep. Henry Cuellar (D-TX), provides a statutory framework for the existing Border Enforcement Security Task Force (BEST) program, an initiative designed to facilitate communication and mutual assistance between agencies at different levels of government. (See H.R. 915 at §3)
Named after Immigration and Customs Enforcement (ICE) Agent Jaime Zapata, who was brutally gunned down last year in Mexico by a drug cartel, H.R. 915 seeks to increase cooperation and information sharing between local, state, and federal agencies to strengthen collaborative efforts along the border. (See FAIR Legislative Update, May 30, 2012)
Amendments made by the Senate Committee seek to prevent redundancy by making sure that new or expanded BEST units will not duplicate efforts of other existing task forces or centers in that jurisdiction.
Additionally, the Senate Committee limited the House requirement that the Secretary of Homeland Security report annually on the effectiveness of the BEST program indefinitely, reducing the reporting period to five-years, and removed the provision authorizing funding for the bill. (See H.R. 915 at §3)
The House of Representatives passed H.R. 915 last month by a vote of 391 to 2. (See FAIR Legislative Update, May 30, 2012) The Senate will schedule a full vote on the legislation once the Senate Committee reports it to the Floor.