FAIR Legislative Update June 27, 2011
Obama Administration Bypasses Congress; Grants Amnesty to DREAM Act Students
In a calculated move to bypass Congress, Immigration and Customs Enforcement (ICE) Director John Morton issued a memo on June 17th to all ICE Field Office Directors, Special Agents in Charge, and all Chief Counsel, authorizing them to decline to remove illegal aliens who meet the qualifications for amnesty under the DREAM Act. (Memo from John Morton to ICE personnel, June 17, 2011)
In the June 17th memo, Director Morton couches this administrative amnesty as merely providing "guidance on the exercise of prosecutorial discretion to ensure that the agency's immigration enforcement resources are focused on the agency's enforcement priorities." (Id. at pg 2; see also Memo from John Morton, Mar. 2, 2011) "The agency," Morton writes, "must regularly exercise ‘prosecutorial discretion' if it is to prioritize its efforts." It then provides an extensive, but non-exclusive, factors ICE officers, agents, and attorneys should consider when determining whether to pursue the removal of an illegal alien. (Memo from John Morton to ICE personnel, June 17, 2011) The factors falling under the purview of the DREAM Act include:
- The circumstances of the person's arrival in the U.S. and the manner of his or her entry, particularly if the alien came to the U.S. as a young child;
- The alien's pursuit of education in the U.S., with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the U.S.;
- Whether the person has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat; and
- The person's age, with particular consideration given to minors.
(Id. at pg 4) The memo also lists individuals present in the U.S. since childhood, minors and elderly individuals, and veterans and members of the U.S. armed forces as "positive factors" prompting particular care and consideration. (Id. at pg 5)
ICE agents are already heeding the memo's directives. Less than a week after Director Morton issued the memo, ICE agents released University of California-Davis student Mandeep Chahal and her mother, even after the Board of Immigration Appeals ordered them removed to India. (Contra Costa Times, June 22, 2011) The Chahals' attorney, Kalpana Peddibhotla, cited the Morton memo as the reason for her clients' reprieve. (Id.) "I am pretty certain if that hadn't happened, they would be sitting on a plane tonight," Peddibhotla said. (Id.)
Leaders of the National ICE Council, a union which represents roughly 7,000 ICE agents, officers, and employees, were outraged by the memo and its implications. "Any American concerned about immigration needs to brace themselves for what's coming," announced Council President Chris Crane in a press release. (National ICE Council Press Release, June 23, 2011) "Unable to pass its immigration agenda through legislation, the [Obama] Administration is now implementing it through agency policy." (Id.) The Council also charges that ICE officials worked "hand-in-hand" with the open-borders lobby, but excluded its own officers from the process of developing policies. (Id.)
Members of Congress are also alarmed by the Obama Administration's attempt to circumvent the law. Earlier this month the House of Representatives passed an amendment introduced by Rep. Ted Poe (R-TX) to the Homeland Security (DHS) fiscal year 2012 appropriations bill (H.R. 2017), which, if passed by the Senate, would in part override the Morton memo by barring DHS funds from being used to grant parole or deferred action (both forms of prosecutorial discretion) to most aliens subject to final orders of removal. The DHS bill is currently awaiting action by the Senate Committee on Appropriations. House Judiciary Chairman Lamar Smith (R-TX) is also expected to introduce legislation that would place more sweeping restrictions the Administration's ability to grant parole, deferred action, or temporary protected status.
Senators Bob Menendez (D-NJ) and Dick Durbin (D-IL) last week introduced a "comprehensive" immigration reform bill aimed at granting amnesty to the more than 11 million illegal aliens in the United States. (Fox News Latino, June 22, 2011) "It's largely a multi-pronged approach that includes border enforcement, employer sanctions, future flows, a pathway to earned legalization, the DREAM Act and Ag Jobs element," said Sen. Menendez of the legislation. (Id.) The bill was co-sponsored by Sens. Patrick Leahy (D-VT), John Kerry (D-MA), Chuck Schumer (D-NY), and Kirsten Gillibrand (D-NY).
The open-borders lobby quickly praised the legislation. "By turning undocumented workers into legal workers and full taxpayers, this legislation will increase revenue, expand employment and grow the economy. That's something our country could use right now," exclaimed the pro-amnesty organization America's Voice.
In addition to comprehensive immigration reform, Senate Democrats continue to push for the failed DREAM Act. The Senate Judiciary Subcommittee on Immigration announced it will hold a hearing on the DREAM Act, legislation aimed at granting amnesty to the roughly two million illegal aliens who arrived in the U.S. as minors. (See Senate Judiciary Committee Website, June 24, 2011) According to FAIR's sources, the planned witnesses for the hearing's first panel include Homeland Security Secretary Janet Napolitano, Education Secretary Arne Duncan, and a representative from the Defense Department. The hearing's second panel will consist of two illegal aliens with deferred action status who would benefit from passage of the DREAM Act, and Steve Camarota from the Center for Immigration Studies, who will be the only witness testifying with a true immigration reform perspective. Stay tuned to FAIR for analysis of next week's hearing...
New immigration enforcement data for 2010 released by the Department of Homeland Security (DHS) last week proved false Secretary Janet Napolitano's claim that DHS removed a record number of aliens in 2010. (Immigration Enforcement Actions: 2010) Last October, Napolitano announced with great fanfare that DHS had in 2010 removed a record number of over 392,000 aliens from the U.S. (DHS Press Release, Oct. 6, 2010) Flanked by law enforcement officers at a press conference, Napolitano claimed that the Administration's "smart" and "effective" approach to immigration enforcement had yielded "historic results." (Id.) ICE Director John Morton similarly remarked, "These record-setting numbers are the result of strong, sensible enforcement programs and priorities…" (Id.) However, the new immigration data released last week shows that the number of removals in 2010 is not what Napolitano claimed. The total number of removals was 387,242, which DHS acknowledged is a 2 percent decline from 2009. (Immigration Enforcement Actions: 2010)
The new immigration enforcement data also show that 73 percent of aliens removed in 2010 were from Mexico, eight percent from Guatemala, six percent from Honduras, and five percent from El Salvador. (Id.) Of those total removed, 169,000 were criminal aliens. (Id.) U.S. Immigration and Customs Enforcement (ICE) estimates that 27 percent of inmates in the already overcrowded federal prisons are non-U.S. citizens. (Criminal Alien Program)
Just as DHS released this data, ICE announced the arrest of more than 2,400 illegal aliens in a week-long surge of part of an ongoing operation coined "Cross Check." (CNN, June 21, 2011) ICE conducted the first successful Cross Check operation in December 2009, and has since conducted Cross Check operations in 37 states. (ICE News Releases, June 21, 2011) ICE Director John Morton said this latest operation was intended to "underscore ICE's ongoing focus on arresting those convicted criminal aliens who prey upon our communities, and [track] down fugitives who game our nation's immigration system." (Id.) All of the criminal aliens taken into custody had prior convictions for crimes such as armed robbery, drug trafficking, child abuse, sexual crimes against minors, aggravated assault, theft, forgery and DUI. (Id.) ICE reported that 22 percent of the aliens arrested not only had criminal convictions, but also had orders of deportation and had refused to leave the country. (Id.)
May's latest and largest Cross Check crackdown comes as states such as Illinois, Massachusetts, California and New York have sought to withdraw from ICE's Secure Communities program in protest of ICE removing some illegal aliens who intersect with the criminal justice system rather than removing only those who are convicted of serious crimes. (See FAIR Legislative Update, June 6, 2011)
The House Judiciary Committee passed a bill last week which would re-start an expired program that admits nonimmigrant nurses to work in "health professional shortage areas." (H.R. 1933) Originally known as the Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95), the program provided an additional 500 nonimmigrant visas each fiscal year to aliens who had obtained a nursing license, passed the appropriate exam and was otherwise eligible. Each alien was granted an admission period of three years. Although originally only enacted for a period of four years, the program was extended until it eventually expired in fiscal year 2009.
Under H.R. 1933, sponsored by Judiciary Chairman Lamar Smith (R-TX), 300 visas would be issued for eligible nurses each year for an original time period of three years, at which point these nurses could extend their stay for an additional three years. (H.R. 1933) During the mark-up, Ranking Member of the Judiciary Committee, Zoe Lofgren (D-CA), successfully offered one amendment which would make these nonimmigrant nursing visas portable, by allowing the aliens who have already been issued a visa to accept new employment as a nurse upon the petition of a new hospital employer. Both the bill and the added amendment passed through the committee on voice vote.
During the same mark-up session, the House Judiciary Committee also passed the Secure Visas Act (H.R. 1741) by a vote of 17-11. The Secure Visas Act, also sponsored by Chairman Lamar Smith, designates authority to the Department of Homeland Security (DHS) to issue and revoke visas; authorizes DHS to conduct on-site reviews of visa applications in high-risk countries; and prevents judicial review of a DHS visa revocation decision. (See FAIR Legislative Update, May 16, 2011)
Supporters of REAL ID Act were featured last week in a forum at the Heritage Foundation where they advocated and encouraged full implementation of the law. (Public Law 109-13) Among the speakers were FAIR's Director of Special Projects, Jack Martin and the original sponsor of the legislation, Congressman James Sensenbrenner (R-WI). Congress passed the REAL ID Act at the urging of the 9/11 Commission, which argued that there should be more stringent standards for the issuance of state driver's licenses. Representative Sensenbrenner reminded the audience that it is an "essential piece of legislation for our homeland security" as the "9/11 hijackers had at least 30 pieces of identification." A driver's license was the basis for obtaining these IDs, as it is an essential ‘breeder document' with which individuals can obtain many other identification documents.
Congressman Sensenbrenner further stressed that REAL ID does not establish a national database, and is not an unfunded mandate. He asserted that just as states do now when issuing commercial drivers' licenses, REAL ID would allow states to check with other states simply to ensure that the procuring individual only has one driver's license. He also noted that the cost of REAL ID has decreased from an original estimate of $12 billion down to $300 million, a price tag that is mostly offset by grants from the federal government.
FAIR's own Jack Martin also lent FAIR's support for the REAL ID program. He refuted claims that REAL ID implementation would create a national ID system, saying that the driver's licenses as they are serve as a de facto national ID. Under current rules and regulations, however, illegal aliens are able use these driver's licenses to get jobs jobs that should go to American workers. Martin noted that FAIR will continue to push for the full implementation of REAL ID, even as the Department of Homeland Security (DHS) has recently announced that it is pushing back the implementation deadline until January 13, 2013. This is the second time that compliance with REAL ID has been delayed. (DHS Final Rule, May 20, 2011)
On Tuesday, June 21, the South Carolina Legislature passed important immigration enforcement legislation (SB 20) sponsored by Senator Grooms (R- Berkeley). South Carolina is the sixth state to pass an omnibus immigration bill of this kind. Similar to other measures in Alabama, Arizona, Georgia, Indiana, and Utah, SB 20:
- requires law enforcement officers to determine the immigration status of an individual the officer has lawfully stopped if the officer has reasonable suspicion that the person is unlawfully present in the United States (Section 6);
- permits a South Carolina citizen to bring an action against political subdivisions that implement sanctuary policies (Section 1);
- makes it a felony for an illegal alien to allow themselves to be transported, moved, concealed, harbored or sheltered from detection within South Carolina (Section 4);
- provides penalties for the failure to carry alien registration documents, much like Arizona and Alabama (Section 5); and
- creates an Illegal Immigration Enforcement Unit which will be responsible for the enforcement of immigration laws when the state is able to procure a 287(g) agreement with Homeland Security (Sections 17 & 20).
Senate Bill 20 is awaiting Governor Haley's signature and according to recent reports, Gov. Haley is expected to sign the bill.