FAIR Legislative Update July 30, 2012
At a Capitol Hill press conference last Thursday, leaders from the two unions representing Immigration and Customs Enforcement (ICE) agents and Border Patrol agents denounced the Obama Administration's immigration policy. Flanked by Senators Jeff Sessions (R-AL), Chuck Grassley (R-IA), and David Vitter (R-LA), these two union leaders painted a stark picture of the state of immigration enforcement across the United States.
ICE union leader Chris Crane, who represents over 7,000 agents, decried the Obama Administration's policy of "prosecutorial discretion," which directs enforcement agents to release illegal aliens who do not meet the Administration's enforcement priorities. Calling it "a failing policy," Crane described how the Department of Homeland Security (DHS) had launched it without any planning or foresight. "Every manager in the field is interpreting these new policies different," Crane said. "It's impossible to even get a picture of what our priorities are now. I have never seen or heard of the type of fly by the seat of your pants, disorganized confusion in a law enforcement organization like what we are currently experiencing at ICE." (CQ Transcript, July 26, 2012)
Mr. Crane also sharply criticized the President's new policy that grants "deferred action" to illegal aliens who meet the eligibility criteria for the DREAM Act. In particular, he warned of wide-spread abuse of the process. "Prosecutorial discretion for DREAMers," Crane said, "is solely based on the individual's claims. Our orders are: if an alien says they went to high school, then let them go; if they say they have a GED, then let them go. Officers have been told that there is no burden for the alien to prove anything. .... At this point, we do not understand why DHS has any criteria at all, as there is no requirement or burden to prove anything on the part of the alien. We believe a significant number of people who are not DREAMers are taking advantage of this practice to avoid arrest." (Id.)
Meanwhile Border Patrol Council President George McCubbin criticized the attempt by DHS to portray the drop in illegal alien arrest rates as a sign of success. The drop in arrest rates, McCubbin said, had more to do with the Administration's change in enforcement tactics than its success at combating illegal immigration. He noted as examples, DHS's termination of immigration checks at transportation hubs near the border and its recent decision to close nine border patrol stations. "Apprehensions at just one of our stations have fallen from over 600 annually to just under 30 even though now they have 10 times the number of agents assigned to that one station." In short, McCubbin said, "Our agency has made it impossible for the agents to go out there and do their jobs." (Id.)
Like Crane, McCubbin also had strong words regarding President Obama's policy of "prosecutorial discretion." "The action taken by President Obama undermines immigration enforcement. Fraud will run rampant and our agents will have to err on the side of caution to grant prosecutorial discretion so that they don't put themselves into a position where they may find themselves involved in a civil lawsuit. ... The agents we represent are not happy regarding this. We feel as if we are political victims." (Id.)
The press conference came just days after FAIR released its report President Obama's Record of Dismantling Immigration Enforcement, a step-by-step look at how the President has undermined immigration enforcement and the rule of law. To watch the press conference in full, visit FAIR's YouTube page here.
The Obama Administration's plan to grant deferred action status and work authorization to illegal aliens meeting criteria similar to the DREAM Act could cost over $585 million, internal Department of Homeland Security (DHS) documents reveal. (Arizona Central, July 24, 2012)
The documents, leaked to the Associated Press last week, provide the first look at the Administration's cost projections for the amnesty program announced June 15. They include estimates that the federal government will need to hire over 1,400 new employees and contractors to process the more than one million anticipated applications. (Id.) In fact, U.S. Citizenship and Immigration Services (USCIS) — the agency that the Inspector General discovered earlier this year was pressuring its employees into rubber-stamping immigration benefits applications despite questions of fraud or ineligibility — estimates the amnesty will result in it processing more than 3,000 applications daily. (Id.; see also FAIR Legislative Update, Jan. 9, 2012 and OIG Report 12-24)
The documents also undermine the Administration's claims that the amnesty will be fee-driven and not cost U.S. taxpayers. While the internal documents show DHS is considering charging illegal aliens $465 per application, the documents also state that depending on how many applicants are granted a waiver or otherwise do not pay, the government could lose between $19 million and $121 million. (Arizona Central, July 24, 2012)Secretary Napolitano told Congress last week that DHS would release its plans for implementing the application process August 1 and that it would begin accepting applications August 15. (See Bloomberg Government Transcript, July 19, 2012; see also FAIR Legislative Update, July 23) The Department was scheduled to hold its second stakeholder conference call on the recently announced deferred action program July 26 (already rescheduled from July 9), but cancelled the call just hours before it was to occur.
The federal government's lack of oversight of schools enrolling foreign students has resulted in the government issuing thousands of illegitimate student visas (F-1s), according to a recently released report from the Government Accountability Office (GAO). (See GAO Report, June 2012)
Currently, U.S. Immigration and Customs Enforcement (ICE) must certify every two years schools accepting foreign national students under the Student and Exchange Visitor Program (SEVP). (See § USC § 1762(b)(1)) However, according to the GAO, during SEVP's certification cycle between 2010 and 2012, ICE properly re-certified only nineteen percent of all SEVP schools, meaning many fraudulent schools have operated without any accountability. (See GAO Report at p.25, June 2012; see also FAIR Legislative Update, Feb. 7, 2011)
To prevent similar abuses of the student visa program, the GAO report provided ICE with a list of specific problems and recommendations. These include:
- ICE ‘s inability to identify indicators of fraudulent activity when evaluating schools applying for SEVP certification or re-certification, or analyze previous fraud cases to help identify other instances of illegal activity. To remedy this, ICE must identify risk indicators and utilize past lessons to boost its ability to uncover fraudulent cases. (See GAO Report at p.11-15 & 38, June 2012)
- ICE is currently missing files from many of its accreditation records, which were either lost when the Immigration and Naturalization Services (INS) transitioned into the Department of Homeland Security, or were never obtained to begin with. To prove the legitimacy of schools' SEVP certifications, ICE must obtain these missing files. (Id. at p.23-26 & 38)
- Some SEVP schools that are not required to receive state accreditation (such as certain vocational schools) are allowed to submit documents to ICE "in lieu of" proof of accreditation. However, ICE has not consistently verified the accuracy of these "in lieu of" documents. ICE must confirm receipt of and legitimacy of all "in lieu of" documents to verify a school's legitimacy. (Id. at p.21-23 & 38)
- ICE has not maintained accurate records of schools' ongoing eligibility and state accreditation or licensing status. ICE must continue to verify schools' eligibility and status on a recurring two-year basis. (Id. at p.23-28 & 38)
- ICE has permitted some flight training schools not certified by the FAA to receive SEVP certification to enroll foreign national students, and has not verified that other SEVP schools' existing FAA certifications are still valid. ICE must identify flight schools without proper FAA certification and develop a timeline to notify them of this requirement. (Id. at p.29-33 & 38)
The Senate Judiciary Subcommittee on Immigration held a hearing Tuesday to discuss the GAO's findings and recommendations. (Bloomberg Government Transcript, July 25, 2012) Members of the Subcommittee gave particular attention to the GAO's revelation that ICE had failed to ensure FAA certification of flight schools, a requirement that was supposed to be implemented after it was learned that three of the 9/11 hijackers had exploited U.S. flight training schools. (Id.; see also GAO Report at p.29-33, June 2012)
When asked by Subcommittee Chairman Charles Schumer (D-NY) when ICE would be able to implement GAO's recommendations, ICE Assistant Director John Woods testified that all but one of GAO's recommendations would be in place by the end of 2012. The final recommendation — the requirement to verify the certification of all schools every two years — would be completed by the end of 2013 and then every two years following. (Id.)
In the meantime, Sen. Schumer announced plans to introduce bipartisan legislation to ensure that ICE fulfills its duties overseeing schools that enroll foreign students. (Bloomberg Government Transcript, July 25, 2012) Specifically, the bill will require flight schools to be accredited by the FAA, require all schools to prove state accreditation/licensure before being allowed to grant student visas, increase penalties for sham schools, and prevent operators of sham schools closed by ICE from opening new institutions. (Id.) The House Judiciary Committee passed similar legislation requiring accreditation for SEVP schools in June. (See H.R. 3120; see also Substitute Amendment to H.R. 3120)
Freshman Congressman Lou Barletta (R-PA) sent U.S. Attorney General Eric Holder a letter last Friday demanding answers regarding the Administration's use of prosecutorial discretion to grant backdoor amnesty to certain illegal aliens up to the age of thirty. This policy was announced in Secretary Napolitano's June 15 memorandum ordering Department of Homeland Security personnel to grant deferred action to illegal aliens meeting criteria similar to that of the failed DREAM Act.
In his letter to the Attorney General, Rep. Barletta charged the Administration with usurping Congressional authority. Noting that Congress had repeatedly rejected the DREAM Act, Rep. Barletta wrote, "[W]hen similar measures that would implement these same policies were presented to Congress, Congress rejected them. The implementation of the new immigration policy that is contrary to the expressed will of the Congress violates the Constitution."
Rep. Barletta also asked Attorney General Holder whether he believed Secretary Napolitano's memorandum was constitutional. "As the most senior lawyer in our country, I would like to know your opinion about the constitutionality of Secretary Napolitano's actions." Barletta inquired. Holder's Justice Department has yet to comment on the Administration's use of prosecutorial discretion to grant deferred action to broad categories of illegal aliens. Stay tuned to FAIR for more details...