Legislation

FAIR Legislative Update October 11, 2011



Administration Officials Deny Granting Back-Door Amnesty

The House Subcommittee on Border and Maritime Security held a hearing Tuesday to examine the impact that recent Obama Administration policies are having on border security. At issue were a series of memos issued by U.S. Immigration and Customs Enforcement (ICE) Director John Morton encouraging agents to ignore certain categories of illegal aliens and the Homeland Security Department’s (DHS) August announcement it would begin reviewing deportation proceedings on a case-by-case basis and releasing those illegal aliens it does not consider a “priority.” (Washington Times, Aug. 18, 2011; FAIR Legislative Update, June 27, 2011)

During her opening statement, Subcommittee Chairwoman Candice Miller (R-MI) declared these policies tantamount to an executive amnesty by the Obama Administration. “I think when you have the potential to administratively close hundreds of thousands of removal cases it sends a message, and that message is clear: that if you make it past the border you're scot- free and that you can stay here despite breaking our immigration laws unless you commit a serious crime, and even then there's no guarantee that these illegal aliens will be deported and sent back to their home. So this action by the administration is clearly administrative amnesty.” (See Chairwoman Miller’s Opening Statement, Oct. 4, 2011)

Administration officials, however, denied their policies grant amnesty to illegal aliens. When Rep. Michael McCaul (R-TX) asked Deputy ICE Director Kumar Kibble if the administration’s policies allow noncriminal aliens to stay in this country and apply for work permits, Kibble’s response was, “No. That doesn't appropriately characterize the policy….They can certainly apply for work authorization, but there is no automatic grant ….” Instead, Kibble referred to the policy of releasing illegal aliens into the public and granting work authorization to them as merely a means of “unclogging the immigration court docket” so the agency can accelerate its “high-priority” cases. Chief Michael Fisher of the U.S. Border Patrol agreed that the best way to “unclog” the overburdened immigration system is to release illegal aliens. “[I]t's certainly CBP's perspective,” he said “[that] when you look at the prosecutorial discretion memo that Director Morton signed…it's going to allow us more detention capability for those entrants that we apprehend between the ports of entry, and from a prioritized enforcement standpoint we do support that.”

Unconvinced, Subcommittee members suggested the witnesses were mischaracterizing the Obama Administration’s policies. “[C]all this whatever you want, but … it appears to me that the administration is saying, ‘Look, if you're a noncriminal alien we're just going to allow you to stay in the United States, and … beyond that, we'll let you apply for work permits,’” said Rep. McCaul. “So it has the appearance [that] the administration in a backdoor way is pushing a guest worker or amnesty program, call it what you want, but [its] allowing illegal aliens to stay in the country and apply for work permits.” Rep. McCaul continued. Chairwoman Miller read the definition of amnesty from the dictionary: “[Amnesty is] the act of any authority, such as government, by which pardon is granted to a large group of individuals [or] the excusing of an offense without enacting a penalty.” That, she concluded, “is the definition of what the administration is doing here in regards to administrative amnesty.” (See Chairwoman Miller Question Witnesses, Oct. 4, 2011)

Illegal aliens have already benefitted from President Obama’s policies. Less than a week after Director Morton issued the memo, ICE agents released a University of California-Davis student Mandeep Chahal and her mother, who are both in the country illegally, even after the Board of Immigration Appeals ordered them removed to India. (Contra Costa Times, June 22, 2011) And, just last week, law enforcement officials in New Jersey released a woman who has been in the country since the early 1990s and had already been ordered deported in 1998 but evaded removal because she has now given birth to two children since coming into the country illegally. (CNN, Oct. 7, 2011)

California Governor Signs DREAM Act and anti-E-Verify Bill into Law

Over the weekend, California Governor Jerry Brown signed into law the second installment of the California DREAM Act (AB 131) and a sweeping anti-E-Verify bill (AB 1236).

Illegal aliens in California already qualify for in-state tuition rates at public colleges and universities in the State. (See FAIR Legislative Resources, Sept. 27, 2011) Under newly enacted AB 131, illegal aliens in California are now also eligible for state funded student financial aid programs and Cal Grant A and B Awards once legal California residents receive grants. (AB 131 at § 4(b)-(c)).

AB 1236 also represents a significant setback to immigration enforcement in the state. That bill, deceivingly entitled the “Employment Acceleration Act of 2011,” prohibits state and local governments from requiring employers to use E-Verify unless required by federal law or as a condition of receiving federal funds, essentially making voluntary use of the program the only possibility until Congress passes mandatory E-Verify legislation.  (AB 1236 at § 2)

California Assemblyman Tim Donnelly, an ardent opponent of illegal immigration, vocally opposed passage of the California DREAM Act: “The polling indicates that 80 to 90 percent of Californians are against this, and it crosses party lines.” (Fox News, Oct. 8, 2011) “It is absolutely, fundamentally wrong and unfair and it is an insult to people who have worked and played by the rules, including those who have come to this country legally,” he said. (Id.) He also stated he hopes to get a ballot initiative overturning the law started as soon as the bill is officially included in state statutes. (Id.)

House Immigration Subcommittee Debates whether Foreign Students Should Stay in the U.S.

On Wednesday, the House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing on whether the U.S. should grant more visas and/or green cards to foreign students who earn a graduate degree from an American University in the fields of science, technology, engineering, and mathematics (STEM).

Judiciary Chairman Lamar Smith (R-TX) cautioned against falling too easily for arguments made by the open borders lobby. “Many people make a compelling argument, ‘why would we want to educate scientists and engineers here and then send them home to work for our competitors?’…. [However], we should keep some points in mind,” he said. “First, all graduate degrees are not the same. It takes an average of over seven years in graduate school for STEM students to receive a doctorate. A master’s can be earned in two years … Second, a visa ‘pot of gold’ could create an incentive for schools to aim solely to attract tuition-paying foreign students with the lure of a green card.” (See Chairman Smith Opening Statement, Oct. 5, 2011)

Witnesses agreed with Chairman Smith. Mr. Barmak Nassirian, Associate Executive Director of the American Association of Collegiate Registrars and Admissions Officers, argued that precautions should be taken to “prevent diploma mills and unscrupulous schools” from benefiting from U.S. immigration policy. (See Testimony of Barmak Nassirian, Oct. 5, 2011) “Eligible institutions should be barred from charging a significantly higher rate to their foreign students than the highest rate for their U.S. counterparts,” Nassirian suggested. (Id.) He also recommended the Subcommittee consider imposing “fairly high limits on the percentage of non-resident STEM students in eligible programs,” to ensure the participation of foreign nationals in graduate STEM programs does not come at the expense of American students. (Id.

B. Lindsay Lowell, Director of Policy Studies for the Institute for the Study of International Migration, argued against giving out more visas due to the lack of need. He argued that there is no shortage of STEM graduates. “Despite the common assertion that there is a shortage of science and engineering workers, I think the data indicates a loose labor market with a ready labor supply.” (See Testimony of B. Lindsay Lowell, Oct. 5, 2011) Between 1995 and 2007, Lowell said, the number of “domestic” STEM graduates increased, averaging 78,000 Master’s degrees and 21,000 Doctoral degrees annually. (Id.)

Feinstein Promises to Introduce New AgJOBS Bill

In a hearing of the Senate Subcommittee on Immigration, Refugees and Border Security last week, Senator Dianne Feinstein (D-CA) announced she will introduce a new version of her AgJOBS legislation this week.  Her announcement came during a hearing on the current “agricultural labor crisis,” in which agribusiness lobbyists urged Congress to take action to provide them a steady supply of cheap labor.

Although the Senator Feinstein argued that her forthcoming legislation would not grant amnesty to anyone because it does not permit beneficiaries to obtain citizenship, she said the legislation would provide five years of legal residency for illegal farm workers. Feinstein explained that --like previous versions of AgJOBS—legal residency would be granted through the issuance of “blue cards.”  In the 2009 AgJOBS bill, the blue card provided illegal farm laborers work authorization, identification cards, and permitted them to bring in their immediate relatives where they could obtain blue cards themselves. (See FAIR Legislative Analysis, June 17, 2009)  Blue card holders were then permitted to convert their blue cards into green cards, and eventually citizenship. 

Agribusiness representatives testifying at the hearing agreed that legalizing illegal aliens currently working on farms was critical to solving what they considered a labor shortage.  All expressed concern that a labor shortage would cripple U.S.  farms — especially if Rep. Lamar Smith’s mandatory E-Verify legislation (H.R. 2885)  were to pass.  Although H.R. 2885 allows agricultural employers a lenient three-year window in which to transition to all legal workers, the agricultural sector purported to be too heavily dependent upon an illegal workforce to comply with timeframe, and instead called for the legalization of illegal aliens farm workers IN ADDITION TO a new, “more streamlined” agricultural guest worker program.  

Agribusiness witnesses then complained about the H-2A visa program and urged Congress to pass sweeping new guest worker programs. (See FAIR Legislative Update, Sept. 12, 2011; FAIR Legislative Update, Sept. 19, 2011)  Ms. Connie Horner, testifying for Horner Farms, shared her experience using the H-2A guest worker program, and testified that its drawbacks included cumbersome paperwork, $12,000 in annual non-payroll costs, and slow response from the Department of Labor on a variety of fronts. All the witnesses underscored their belief that agricultural labor is a type of work that legal American workers will not do. 

The lone voice testifying on behalf of the American worker was Eric Ruark, Director of Research at FAIR.  Mr. Ruark informed the committee of how corporate farm industries are capitalizing on illegal farm workers by underpaying the workers to increase profit.  Depressed wages not only exploit illegal workers, he explained, but also drive down wages for all workers and discourage U.S. workers from engaging in agricultural labor.  Ruark testified that commercial farms could pay substantially higher wages, as much as a 30 percent increase, and still be profitable.  If farms insisted on passing such a wage increase to the American consumer, Ruark asserted that a 30 percent wage increase would only increase the cost of produce by pennies. 

Border Patrol Gets Closer to Gaining Access to the Border

Taking a step to help the Department of Homeland Security (DHS) secure the border, the House Committee on Natural Resources passed H.R. 1505 last week by a vote of 26-17.  H.R. 1505, authored by Rep. Rob Bishop (R-UT), would prevent the Departments of Interior and Agriculture from impeding or restricting activities of the Border Patrol on federal lands undertaken to achieve operational control of the border.

Official reports have documented the problem of the Border Patrol having only limited access to land along border. In particular, the Government Accountability Office (GAO) shed light on Border Patrol’s struggles in reports released in late last year and earlier in 2011.  (See GAO-11-38, Oct. 19, 2010; and GAO-11-177, Nov. 18, 2010)  In those reports, the GAO explained that Border Patrol agents must currently comply with multiple federal land management laws to protect the environment while simultaneously attempting to secure the border and themselves from the incessant onslaught of illegal aliens, human smugglers and drug traffickers sneaking across the border.  Roughly 40 percent of border lands, the GAO reports, are controlled by the Departments of the Interior and Agriculture, which require all border agents to comply with a variety of protection laws, including the National Environmental Policy Act, the Wilderness Act, and the Endangered Species Act.  In order to perform their duties, border agents must request environmental and historic property assessments and be given permission to proceed with their assignments.  The GAO recommends that the government take steps to expedite Border Patrol’s access to these restricted land areas. 

In response, Rep. Bishop introduced H.R. 1505, which he touted as the “common sense solution“ that addresses the U.S. Border Patrol’s “lack of sufficient access to millions of acres of federally owned land.”  (Natural Resources Committee Press Release, Oct. 5, 2011)  Chairman of the Committee, Rep. Doc Hastings (R-WA), called the passage of the legislation as a vote to “prioritize national security over bureaucratic red tape.”  (Natural Resources Committee Press Release, Oct. 5, 2011) 

The path forward for H.R. 1505 is not yet clear.  The legislation is already facing some resistance from some environmental groups and Democratic members, which may slow its progress.  (CQ, Oct. 10, 2011)  Rep. Bishop has indicated he is not worried about garnering support from his fellow Republicans, but he has not yet sought placement for the bill on the House floor from Republican leadership.  (Id.)  In the past, the bill has been attached as amendments to certain homeland security bills but has not yet been able to pass through Congress.