FAIR Legislative Update October 2, 2012
In a last minute move before the legislation was scheduled to become law, California Governor Jerry Brown vetoed AB 1081, a bill that would thwart immigration enforcement by state and local law enforcement officers. (Sacramento Bee, Sept. 30, 2012)
If allowed to take effect, AB 1081 would have prohibited state and local law enforcement agents from honoring U.S. Immigration and Customs Enforcement (ICE) detainers unless an alien has been convicted of or is in custody for a serious or violent felony. (See AB 1081 at §2) Even then, officers would still have the discretion whether to honor the federal detention request. (Id.)
In a statement accompanying his veto, Gov. Brown cited the bill's narrow nature as the reason for his decision. The list of offenses comprising a serious or violent felony "is fatally flawed because it omits many serious crimes [including]…child abuse, drug trafficking, selling weapons, using children to sell drugs, or gangs," the statement reads. (Read Gov. Brown's full statement here) "I believe it's unwise to interfere with a sheriff's discretion to comply with a detainer issued for people with these kinds of troubling criminal records," he continued. (Id.)
Nonetheless, reaffirming his commitment to amnesty, Gov. Brown vowed to work with state legislators to pass a broader version of the legislation in the future. "The significant flaws in this bill can be fixed, and I will work with the Legislature to see that the bill is corrected...," he said. (Id.)
FAIR opposed the legislation, and asked its members and activists both nationwide and in California to call Governor Brown and urge him to veto AB 1081.
Schools and government offices are being swamped with record requests from illegal aliens attempting to prove their eligibility for President Obama's deferred action amnesty program (DACA).
Under the new policy, in order to be eligible for deferred action, illegal aliens must show that they:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for at least five years preceding the date of this memorandum and be present in the United States on the date of this memorandum;
- Are currently in school, have graduated from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty.
Since U.S. Customs and Immigration Services (USCIS) began accepting DACA applications in August, illegal aliens under thirty-one have been scrambling to acquire the necessary documentation to prove they qualify for the program. As a result, schools and other governmental offices granting such records have been flooded with requests. According Rafael Balderas, a principal at a Los Angeles high school, his school is "being inundated" with transcript requests from students seeking to prove their schooling. (Huffington Post, Sept. 17, 2012) In total, the Los Angeles Unified School District (LAUSD) is facing a backlog of 2,300 requests, and they anticipate 50,000 more over the next few months. (Id.) Los Angeles is only one of many affected areas. Schools in the Dallas, Texas area have reported a doubling of transcript requests, and schools in Aurora, Colorado report increases since July as well. (Dallas Morning News, Sept. 21, 2012; see also Huffington Post, Sept. 25, 2012)
To cope with the increased number of requests, local governments are considering hiring more personnel at taxpayer expense. For example, Tarrant County, Texas, whose district clerk has experienced a tripling of requests for felony record searches, is having to consider the possibility of paying additional staff to help with the increased workload. (Fort Worth Star Telegram, Aug. 29, 2012) "We're trying to handle this with existing personnel," said Tarrant County District Clerk Tom Wilder. "[It] remains to be seen if we can do that…but that's a job we're supposed to do under the law so we're doing it," he explained. (Id.) The LAUSD expects to pay upwards of $200,000 in staffing costs, not including overtime, for employees working to satisfy the demand for transcripts. (Huffington Post, Sept. 17, 2012) San Diego public schools are anticipating an added expense of $45,000, and will hire five new employees to cope with increased transcript requests. (AZ Central, Sept. 25, 2012)Upon announcing the DACA program, the Administration claimed it would be self-funded by a $465 application fee. DHS has yet to develop a program to reimburse state and local governments for the cost of administering the program.
Last week, the Government Accountability Office (GAO) released a report detailing the current levels of REAL ID compliance among the different states. (GAO Report, Sept. 2012) Congress passed the REAL ID Act in 2005 at the recommendation of the 9/11 Commission as a means to combat driver's license fraud, a weakness exploited by the 9/11 hijackers. (See Public Law 109–13 Division B Title II, March 2011; see also FAIR Fact Sheet on REAL ID, 2009; see also FAIR Fact Sheet on the Identity and Immigration Status of the 9/11 Terrorists, 2011)
While it is not mandatory for states to comply with the act, the act establishes specific procedures states must follow when issuing driver's licenses in order for the federal government to accept those licenses for "official purposes." (See Public Law 109–13 Div. B Title II Sec. 202(d)(11)(A), March 2011) Included under "official purposes" are boarding commercial aircraft, entering federal buildings, and entering nuclear power plants. (See Public Law 109–13 Div. B Title II Sec. 201(3); see also GAO Report at p.4, Sept. 2012)
According to GAO, most states have taken steps to combat driver's license fraud, although the steps may not necessarily be REAL ID compliant. Those states that have employed anti-fraud measures have reported success. For example, "the number of states verifying [Social Security Numbers] with [the Social Security Administration] has increased substantially" since an earlier study by GAO in 2003. (GAO Report at p. 8-12, Sept. 2012) Accordingly, since states began checking the authenticity of Social Security numbers, the amount of this type of fraud "has declined significantly" and "is no longer the main type of fraud [officials] see." (GAO Report at p. 16, Sept. 2012) Additionally, most states are training employees to detect fraudulent documents. (GAO Report at p. 8-12, Sept. 2012) Officials in the majority of states included in GAO's study "said they have seen a decline in attempts to obtain licenses using counterfeit documents," which they attribute to staff being "better trained on how to check for security features." (GAO Report at p. 15-16, Sept. 2012)
Despite the success some states have experienced in integrating anti-fraud measures, a GAO investigation revealed that several vulnerabilities still remain. To conduct its investigation, GAO selected several states where GAO employees posed as driver's license applicants and submitted fraudulent documents. (GAO Report at p. 23-24, Sept. 2012) The first vulnerability they found is the ability of applicants to obtain multiple licenses under different identities due to a lack of biometric technology and photo sharing between states. (Id.) Not all states have incorporated biometric technology, and according to officials in one state GAO studied, cross-state facial recognition software is only used "in limited circumstances, such as when there is reason to suspect license fraud," instead of as part of standard fraud detection practices. (GAO Report at p. 11-12, Sept. 2012)
The second remaining vulnerability they found is that state employees are unable to detect counterfeit birth certificate as proof of identification to obtain licenses. Because birth certificates' security features vary by county, counterfeits are difficult to spot visually. (GAO Report at p. 23-24, Sept. 2012) According to the GAO employees conducting the investigation, none of the staff processing their applications even "questioned the validity of the counterfeit birth certificates presented" or consulted any systems that could help verify the document. (Id.)
The final vulnerability GAO discovered is the use of fraudulent licenses across state lines. (GAO Report at p. 23-24, Sept. 2012) According to interviews conducted in select states by GAO, "officials in all the states…acknowledged they lack the ability to consistently determine if the identity presented by a license applicant is already associated with a license-holder in another state." (GAO Report at p.16, Sept. 2012) At the time of GAO's report, no systems to verify licenses presented from other states were operational, although many states expressed an interest in the concept. (GAO Report at p.18, Sept. 2012)
According to the GAO, DHS has failed to provide adequate leadership in helping states address these vulnerabilities and achieve REAL ID compatibility. According to testimony by DHS Assistant Secretary for Policy David Heyman in a House Judiciary Subcommittee hearing on Mar. 21, 2012, DHS '[planned] to issue additional guidance in the near future to clarify the minimum standards that states and territories must meet to achieve full compliance with the Act and provide examples of how states can meet them." (Testimony of David Heyman, Mar. 21, 2012, see also FAIR Legislative Update, Mar. 26, 2012) But according to GAO, DHS officials have since decided to reevaluate that decision in favor of only responding to direct questions from state officials. Yet "officials in most states [GAO] interviewed expressed a need for additional guidance" from DHS, having been left with a "lack of clarity." (GAO Report at p. 29-30, Sept. 2012) According to the report, some states that sent questions to DHS never received a response, leaving them in a position where they were forced to "make assumptions" on how to fulfill REAL ID requirements. (Id.)
Despite specific criteria set forth by Congress, DHS intends to allow states to develop their own compliance programs, so long as such programs are generally "comparable to the requirements" of REAL ID regulation. (Testimony of David Heyman, Mar. 21, 2012) According to GAO, "DHS plans to consider alternatives states propose in their compliance plans. DHS officials said they believe this approach gives states opportunities to develop innovative solutions and flexibility to consider their own circumstance." (GAO Report at p. 31, Sept. 2012)
Since the law's passage in 2005, DHS has delayed implementation of REAL ID three times. The most recent instance occurred in March of last year, when Secretary Napolitano announced DHS' decision to push the compliance date back to January 2013. (Fox News, March 5, 2011; FAIR Legislative Update, Mar. 7, 2011)
REAL ID requirements will officially take effect on Jan. 15, 2013. While REAL ID was originally supposed to be implemented in 2008, the deadline was extended on three separate occasions by DHS. (FOX News, Mar. 5, 2011) After Jan. 15, individuals born after Dec. 1, 1964 have a grace period through Dec. 1, 2014 to be issued a REAL ID compliant license for official purposes. (See 6 C.F.R. § 37.5) Individuals born before Dec. 1, 1964 must be issued a REAL ID compliant license by Dec. 1, 2017. (Id.)
Last week, Sen. David Vitter (R-LA) introduced S. 3579, the Voter Integrity Protection Act, a bill that would make unlawful voting in federal elections by illegal aliens both an aggravated felony and a deportable offense under the Immigration and Nationality Act (INA). (The Hill, Sept. 21, 2012)
It is already a crime under U.S. law for non-citizens to vote in federal elections. (18 U.S.C. § 611) The Voter Integrity Protection Act aims to reinforce this preexisting law in two ways. First, it would make it an aggravated felony under the INA for illegal aliens to vote. (See INA § 101(a)(43)) This has the effect of subjecting illegal aliens to expedited removal, allowing immigration officials to remove them without an order from an immigration judge. (See INA § 238) Second, the bill would include knowing violations of the prohibition against non-citizen voting on the INA's list of deportable offenses, ensuring those breaking preexisting law are not allowed to remain in the country. (See INA § 237(a)(2))
"While this may sound bizarre to a lot of folks in Washington, illegal aliens and non-citizens have no constitutional right to vote in American elections," said Sen. Vitter regarding his proposal. "[O]ur election system and our right to vote are being taken advantage of because of weak enforcement," he continued. (The Hill, Sept. 21, 2012)
Neither the Senate nor House is scheduled to return from recess until after the November elections, preventing Sen. Vitter's bill from impacting the 2012 elections. While the number of non-citizens registered to vote in the U.S. is unknown, just this last week officials in Florida uncovered roughly 200 non-citizens on its voter rolls. (Fox News, Sept. 27, 2012)