FAIR Legislative Update November 19, 2012
Without so much as a press release, the Obama Administration published Friday statistics on the number of illegal aliens it has granted backdoor amnesty to through its Deferred Action for Childhood Arrivals (DACA) program. Totaling 53,273, the number of applications approved as of November 15 is more than 11 times the number approved (4,591) just one month ago. (See USCIS DACA stats, Nov. 16, 2012; see also USCIS DACA stats, Oct. 10, 2012)
U.S. Citizenship and Immigration Services (USCIS), the agency tasked with processing the DACA applications, reported receiving 308,935 applications to-date. (See USCIS DACA stats, Nov. 16, 2012) Of those applications, the statistics show that the agency has only rejected 10,101 cases as unacceptable for review, and does not include any data on rejected applications — implying the agency has yet to deny backdoor amnesty to a single applicant. (Id.)
Interestingly, unlike previous statistics released on the DACA program, USCIS has released information on the demographic composition of the applicants. The number one country of origin of applicants is Mexico, with 212,514 of those applying of Mexican origin. (See USCIS DACA stats, Nov. 16, 2012) El Salvador is a distant second, with 13,769 applicants of such origin. (Id.) The USCIS data also includes the top 10 states of residence of the applicants. The top three states include California with over 25 percent, Texas with over 15 percent, and New York with six percent. (Id.)
Last week, a group of Republican Senators working on a GOP-led alternative to the DREAM Act released details of their plan to the Daily Caller. (Daily Caller, Nov. 15, 2012) The draft legislation, entitled the ACHIEVE Act, would put illegal aliens up to the age of 32 on a path to citizenship. (Id.)
This path to citizenship starts through the creation of new non-immigrant visa category, the W-visa. 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 in 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 non-immigrant" visa. Although the authors of the ACHIEVE Act say it does not provide a special pathway to citizenship, the W-3 is renewable in four-year increments, and its recipients are free to adjust status to a green card via pathways already set up under current law.
Congressional sources say retiring Sens. Kay Bailey Hutchison (R-TX) and Jon Kyl (R-AZ) were working on the ACHIEVE Act with Florida Sen. Marco Rubio this summer, but put the plan on hold following President Obama's announcement he would be granting deferred action and work authorization to illegal aliens under the age of 31. (Fox News, Nov. 16, 2012)The text is "a working draft of what Sen. Rubio began working on over the summer," Sen. Marco Rubio's spokesman Alex Conant confirmed with the Huffington Post.(Huffington Post, Nov. 15, 2012)
The same day the GOP draft was leaked to the Daily Caller, Sen. Rubio called for a "permanent solution" for illegal alien minors during the annual Washington Ideas Forum. (Fox News Latino, Nov. 16, 2012) "[T]he issue of kids that are in this country undocumented is not an immigration issue, it's a humanitarian one," Rubio told the audience. (Id.) Sen. Rubio's spokesman indicated he is still finalizing the timing and specifics of the legislation. (Huffington Post, Nov. 15, 2012)
Republican Leadership in the U.S. House of Representatives announced last week its intention to take up STEM legislation introduced by Judiciary Chairman Lamar Smith (R-TX) during the lame-duck session. (CQ Today, Nov. 13, 2012) The bill, H.R. 6429, eliminates the visa lottery by reallocating the 55,000 green cards available under the program to two new employment-based visa categories, the EB-6 and EB-7. (See H.R. 6429; see also Judiciary Committee Summary of Bill)
The EB-6 category proposed under the legislation is intended for foreign students holding a PhD in a STEM field (Science, Technology, Engineering, and Mathematics) from a U.S. university who agrees to work for at least five-years in the aggregate for the petitioning employer or in the U.S. in a STEM field. (See H.R. 6429 at §2) Similarly, the proposed EB-7 category is intended for foreign students holding both a Master's and baccalaureate degree in a STEM field from a U.S. university who agrees to work for at least five-years in the aggregate for the petitioning employer or in the U.S. in a STEM field. (Id.) Those with Master's degrees would be granted a green card only after all qualifying PhD petitions have been granted. (Id.)
Under the bill, employers who petition to hire these graduates under the EB-6 or EB-7 categories must receive labor certification. This means that in order to approve a petition for an EB-6 or EB-7 green card, the Secretary of Homeland Security (DHS) must first receive certification from the Secretary of Labor that the petitioning employer cannot find sufficient, willing, qualified, and available American workers, and that employment of the alien will not adversely affect the wage and working conditions of similarly situated employees. (Id., see also INA § 212(a)(5)(A)) However, the bills allows the DHS Secretary to waive this requirement if he or she deems a waiver of such to be in the national interest.
The legislation also would create a new non-immigrant student visa category specifically for foreign students seeking to study in a STEM field and potentially seek an EB-6 or EB-7 green card in the future. (See H.R. 6429 at §5) While statutorily the provision is intended to get around the current requirement that foreign students declare they intend to return to their country of residence upon graduating, it has the potential to increase competition for American students studying in STEM fields, as universities benefit significantly from admitting foreign students who pay full tuition rates. (See INA § 101(a)(15)(F))
If Leadership makes good on its promise, it would be the second time in less than three months the bill is called to the floor for a vote. Republicans placed the bill on the House's suspension calendar in September, which requires a two-thirds vote to pass legislation. The bill failed, receiving a final vote of 257 to 158. (See Roll Call Vote #590)
At a press conference last week, President Obama jumped at the chance to declare his second-term amnesty agenda. "I'm very confident we can get immigration reform done," he told reporters. (Washington Post Transcript, Nov. 14, 2012) "[M]y expectation is that we get a bill introduced and we begin the process in Congress very soon after my inauguration." (Id.)
President Obama outlined his amnesty vision as follows:
I do think that there should be a pathway for legal status for those who are living in this country, are not engaged in criminal activity, are here to simply to work. It's important for them to pay back taxes. It's important for them to learn English. It's important for them to potentially pay a fine, but to give them the avenue whereby they can resolve their legal status here in this country... (Id.)
The President also reiterated his support for the DREAM Act, stating he wants to codify his Administration's backdoor amnesty — Deferred Action for Childhood Arrivals (DACA) — program to give beneficiaries an "opportunity to earn their citizenship."
The President signaled White House staff is already working with Members of Congress on legislation. Just last week House Speaker John Boehner indicated that Republicans are willing to compromise on immigration. "I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all," Rep. Boehner said. (Washington Post, Nov. 9, 2012) Stay tuned to FAIR as details emerge…
Alameda County – the county that encompasses Berkeley, California – has become the latest local jurisdiction to shield illegal aliens from removal. This shield comes in the form of a new prosecution policy recently issued by Alameda County District Attorney Nancy O'Malley. More specifically, O'Malley has directed her prosecutors to allow legal and illegal aliens to plead to lesser charges to avoid the risk of removal. (Alameda County DA Policy; see also Oakland Tribune-San Jose Mercury News, Nov. 1, 2012).
The new policy raises many constitutional questions. For instance, the policy potentially violates the Equal Protection Clause of the U.S. Constitution, which generally mandates that "all persons similarly circumstanced shall be treated alike." (Plyler v. Doe, 457 U.S. 202, 216 (1982); see also U.S. Const. amend. XIV). Under Alameda County's new policy, illegal and legal aliens would be charged with lesser crimes and receive better plea-bargaining options than U.S. citizens.
However, the Alameda County DA has dismissed any talk of constitutional concerns, stating that the U.S. Supreme Court settled any Equal Protection concern in the case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010). (Alameda County DA Policy). In Padilla, a lawful permanent resident who pleaded guilty to drug charges claimed that he did not receive effective assistance of counsel pursuant to the Sixth Amendment to the U.S. Constitution because his counsel wrongly advised him that his plea would have no effect on his immigration status. The High Court ruled in Padilla's favor, holding that the Sixth Amendment requires that a defendant be correctly advised of the immigration consequences of agreeing to a particular conviction. (Padilla, 130 S. Ct. at 1486). Contrary to the assertions of the Alameda County DA, however, the Supreme Court did not rule on the Equal Protection issue.
Alameda County follows in the footsteps of local jurisdictions, such as Los Angeles County, Santa Clara County, and Cook County that shield legal and illegal aliens from removal. (Santa Clara DA's Policy; see also Oakland Tribune-San Jose Mercury News, Nov. 1, 2012).
U.S. Immigration and Customs Enforcement (ICE) officials announced in a press release Wednesday that it has implemented the "second phase" of its plan to grant detained aliens easier access to the ICE Public Advocate by expanding its "helpline." (ICE Press Release, Nov. 14, 2012) On its flyer advertising the new "helpline," ICE states it is available for those with questions regarding "prosecutorial discretion" and "questions or concerns about immigration enforcement or detention." (See Hotline Flyer, Nov. 15, 2012)
Late last year ICE created a 24/7 hotline for detainees to call "if they believe they may be U.S. citizens or victims of a crime." (ICE Press Release, Dec. 29, 2011; FAIR Legislative Update, Jan. 3, 2012) This hotline directs callers to the Law Enforcement Support Center (LESC), which is the division within ICE charged with responding to inquiries from law enforcement agencies on aliens suspected, arrested, or convicted of criminal activity. (See ICE Website, Dec. 30, 2011) Under this "second phase," however, ICE made accessible to detainees what appears to be a new "Community and Detainee Helpline" to allow those held in Atlanta, Baltimore, Miami, New Orleans, and Washington detention centers to contact directly the Office of the Public Advocate by a telephone system in the facilities. (ICE Press Release, Nov. 14, 2012)
The agency created the position of Public Advocate earlier this year to serve as the Administration's point of contact to address the questions and concerns of illegal aliens and the open borders lobby. (ICE Press Release, Feb. 7, 2012; FAIR Legislative Update, Feb. 13, 2012) Andrew Lorenzen-Strait, who was appointed to the position upon its inception, praised the new "helpline." "We are excited to launch the next phase of the ICE Community and Detainee Helpline," Lorenzen-Strait said. (ICE Press Release, Nov. 14, 2012) "We are confident that this expanded service will allow us to promote further dialogue with our many stakeholders and continue to build bridges with our communities." (Id.)
Last Thursday, the U.S. Census Bureau released a report that suggests the poverty rate among non-citizens in 2011 was a stunning 32 percent — seven percent higher than previously thought. (U.S. Census, The Research Supplemental Poverty Measure 2011, Nov. 2012)
The report is significant because it calculates poverty using a new methodology, designed to include more relevant factors. The "official poverty rate," the rate with which most Americans are familiar, is generally measured by comparing the size of a family to the family's pre-tax cash income. (Report at 1) However, this method of calculating poverty, established in the 1960s, has long been criticized by various organizations for not incorporating factors that reflect present-day life. The National Academy of Sciences in particular issued a critique of the official poverty rate for not taking into account government-provided resources, expenses necessary to hold a job, variation in medical costs, important changes in family situations, and geographic differences in the cost of living. (Report at 1-2)
Based on these criticisms, the Census Bureau has spent over two decades designing the Supplemental Poverty Measure. This new method for measuring poverty in the United States — outlined in this latest U.S. Census Bureau Report — incorporates government-provided benefits such as the Supplemental Nutritional Assistance Program (SNAP), school lunches, the Supplemental Nutrition Program for Women, Infants, and Children (WIC), housing benefits, and low-income home energy assistance. It also takes into account tax payments or credits (such as the earned income tax credit), work-related expenses, child care costs, medical expenses, and child support. (Report at 4-5)
Based on this new methodology, the Census Bureau determined that the poverty rate among non-citizens in 2011 was a remarkable 32 percent, more than seven percentage points higher than reflected by the official poverty rate. (Report at 6) The Census Bureau also found that Hispanics have a poverty rate of 28 percent, up from 25.4 percent under the official poverty rate. (Id.) Additional data offered by the Census Bureau shows that the poverty rates among other demographics had changed as follows:
- African Americans: 25.7, down from 27.8 percent under the official poverty rate;
- Asians: 16.9 percent, up from 12.3 percent;
- Whites: 11 percent, up from 9.9 percent;
In terms of geographic distribution, the new data shows that the highest poverty rates are in California and Washington, D.C. In 2011, both had poverty rates of over 23 percent, up from 16 percent and 19 percent, respectively. (Report at 12)
Last Thursday, federal judge Richard M. Gergel dissolved the injunction on the core provision of South Carolina's immigration enforcement law, paving the way for the law's implementation. (See South Carolina District Court Order, Nov. 16, 2012). The District Court had originally placed an injunction on parts of the law, also called Act 69, in December 2011 as the result of the Department of Justice's lawsuit challenging the constitutionality of the law. (See South Carolina District Court Order, Dec. 22, 2011; FAIR Legislative Update, Nov. 7, 2011) However, after the United States Supreme Court's subsequent opinion in Arizona v. United States, 132 S. Ct. 2492 (2012) the District Court re-examined the injunction on the law and lifted it with respect to Section 6.
South Carolina passed Act 69 in June 2011 in an attempt to fight illegal immigration within the state. (See FAIR Legislative Update, June 27, 2011). Section 6 requires State and local law enforcement officers to make a reasonable effort to ascertain the immigration status of those the officer lawfully stops, detains, investigates, or arrests for a criminal offense if the officer has reasonable suspicion to believe the person is unlawfully present. (Act No. 69 at § 6(A)). Under the law, persons who provide police with a valid driver's license or picture ID issued by South Carolina or another state, a picture ID issued by the U.S., or a tribal photo identification, are presumed to be lawfully present. (Id. at § 6(B)(1)).
While Judge Gergel lifted the injunction on Section 6 last week, he used his opinion to encourage opponents of the law to challenge it again based on how the law is implemented. (See South Carolina District Court Order, Nov. 16, 2012, at 12). In fact, Judge Gergel went so far as to suggest to the plaintiffs the legal and factual basis for a challenge that might prove fruitful. (Id. at 12 n.4). Gergel's comments, however, come as no surprise to those who read his December 22, 2011 opinion. In it, Judge Gergel expressed his personal disapproval of Act 69 both at the beginning and end of his analysis. Just before ordering the injunctions, he wrote: "The State of South Carolina is not without options to address its particular concerns with the federal government's immigration policy...For reasons that are not clear to the Court, South Carolina elected to forego an effort to negotiate its own agreement with the federal government [under INA §287(g)] and instead adopted Act 69. Perhaps through good faith negotiations and frank discussion the State of South Carolina and the federal government can fashion an agreement to address...the concerns of state officials without unduly burdening federal resources or disrupting the foreign affairs of the national government." (See South Carolina District Court Order, Dec. 22, 2011Order at 2-3, 36).
Unfortunately, Judge Gergel did not lift the injunction on any other sections of Act 69 that the Court had previously blocked. (See South Carolina District Court Order, Nov. 16, 2012; see also FAIR Legislative Update, Jan. 3, 2012, for an in-depth analysis of the enjoined provisions). Nonetheless, South Carolina Attorney General Alan Wilson called Thursday's ruling dissolving a portion of the injunction "a significant victory for South Carolina's law enforcement community. Lifting the injunction on Section 6 means police officers and sheriff's deputies now have an important tool to assist them in doing their job and for protecting South Carolinians." (Wilson Statement, Nov. 15, 2012).