Legislation

FAIR Legislative Update October 24, 2011



Napolitano Defends Back-Door Amnesty before Senate

Appearing before the Senate Judiciary Committee Wednesday, Homeland Security Secretary Janet Napolitano defended her Department's recent announcement to administratively close pending and incoming deportation cases for illegal aliens deemed a "low-priority" by the Administration.  "[These policies] make common sense, and they reflect the reality that we've never had enough resources to remove everyone who's in the country illegally. And so you've got to have priorities…" she stated.

Ranking Member of the Committee, Sen. Charles Grassley (R-IA), disagreed, calling the new back-door amnesty program, and ICE's new prosecutorial discretion policy created to implement it, "alarming." "We have many unanswered questions from this Administration about their prosecuting discretion initiatives. We want answers. We want transparency and accountability. Constitutionally, [Congress is] a part of the process," he said. (Watch Sen. Grassley's Opening Statement here) In particular, Grassley balked at the fact that many if not most of the beneficiaries of administrative amnesty will also get work authorization.  Secretary Napolitano, however, claimed to have no authority over who receives work authorization, stating, "This goes to CIS [U.S. Citizenship and Immigration Services]. It's not an ICE or CBP function…" Napolitano's response, however, completely ignores that CIS is an agency within the Department of Homeland Security (DHS) of which she is in charge. (Watch Sen. Grassley Question Sec. Napolitano here)

Sen. Jeff Sessions (R-AL) voiced grave concern over the diminishing morale of ICE agents due to the Administration's policies.  Referring to the ICE Union's vote of no confidence in Director Morton in 2010, he stated, "I am very concerned about the morale of our ICE officers... For two years now it appears that the representative group for these officers have voted no confidence in your leadership..."   However, Napolitano claimed the opposite was taking place: "I believe that the priorities we have set are actually enhancing morale amongst our troops." (Watch Sen. Sessions Question Sec. Napolitano here)

Meanwhile, Sen. Durbin told Secretary Napolitano that DHS is not granting administrative amnesty to illegal aliens quickly enough. "You also said DHS would issue guidance to prevent low priority cases from being put into deportation proceedings in the future. I appreciate your commitment to this process but I'm concerned. It's been four months since the Morton Memo was issued and two months since you announced the process for implementing it … [W]hen will your review of pending deportation cases begin?"  Napolitano replied that she expected the working group (whose composition remains unknown to the public) to implement a pilot program that would begin reviewing pending deportation cases in certain districts within two to three weeks. (Watch Sen. Durbin Question Sec. Napolitano here)

Following suit, the House Judiciary Committee is scheduled to hold an oversight hearing on the Department of Homeland Security this Wednesday. Stay tuned to FAIR for a summary...

Deportations and Deception Hit New Highs in 2011

U.S. Immigration and Customs Enforcement (ICE) last Tuesday proudly announced its fiscal year 2011 deportation numbers set a new record for the agency.  (ICE News Releases, Oct. 18, 2011)  In FY 2011, ICE removed 396,906 illegal aliens from the United States, which — if accurate — represents a 2 percent increase from FY 2010.  (Immigration and Enforcement Actions: 2010; Oct. 8, 2010; see also FAIR's Legislative Update, June 27, 2010)

According to ICE, the fact that a significant portion of the removals were of criminal aliens "underscore[s] the administration's focus on removing individuals from the country that fall into priority areas for enforcement."  (Id.)  Approximately 55 percent of the aliens removed were convicted of serious crimes, including murder (1,119); sexual offenses (5,848); drug offenses (44,653); and drunk driving (35,927).  (Id.)

Upon the release of the new data, Homeland Security Secretary Janet Napolitano attempted to calm the open borders lobby by explaining that the new level of deportations was reached by deporting a greater number of criminal aliens. According to ICE, the number of criminal aliens deported in FY 2011 represents an 89 percent increase in the removal of criminal aliens over the past three years (since FY 2008).  (ICE News Releases, Oct. 18, 2011)  Napolitano said, "[W]hile the overall number of individuals removed will exceed prior years, the composition of that number will have fundamentally changed."  (CNN, Oct. 18, 2011)  With regard to how the administration should handle the remaining 11 million illegal aliens, Secretary Napolitano said "there has never been, nor will there be in these tight fiscal times, sufficient resources to remove all of those unlawfully in the country."  (CNN, Oct. 18, 2011)

Still, the American Civil Liberties Union (ACLU) expressed complete disgust that the agency would deport any illegal aliens.  ACLU Legislative Counsel Joanne Lin said that this record number of deportations has left a "wake of devastation in Latino communities across the nation."  (CNN, Oct. 18, 2011)  Lin did not comment on the devastation left behind by the horrible crimes committed by 55 percent of those deported last year.  Similarly, amnesty advocate Congressman Luis Gutierrez (D-IL) told reporters that the new deportation numbers "were nothing to be proud of." (The Hill, Oct. 18, 2011)

Like Secretary Napolitano, President Obama has attempted to downplay the fact that ICE is deporting illegal aliens at all.  Two weeks ago, he referred to the deportation numbers during his administration as "a little deceptive," mainly because many were removals of illegal entrants at the border, not by otherwise law-abiding illegal aliens.  (Yahoo! News, Sept. 28, 2011; FAIR Legislative Update, Oct. 3, 2011)  Thus, the President stated that the increase is thanks to better border control. The President also argued that his administration has attempted to be as "humane" as possible in enforcing immigration laws.  (Yahoo! News, Sept. 28, 2011)

ICE Director John Morton assured reporters at last Tuesday's press conference that the nation could "count on seeing more of the same next year."  (Los Angeles Times, Oct. 18, 2011) 

Santa Clara County Votes to Ignore Immigration Detainers

On October 18, the Santa Clara County (CA) Board of Supervisors voted 3-1 to stop using county funds to honor ICE detainers, except in limited circumstances.  According to the Associated Press, the measure was the result of "a year of work with a coalition of immigrants rights' advocates, members of the legal community and civil rights groups." (Oct. 19, 2011)

The County adopted the policy as retaliation for what it considers forced participation in the Secure Communities program.  (Los Angeles Times, Oct. 18, 2011) The County attempted to "opt out" of the program nearly a year ago, but the Department of Homeland Security (DHS) has since told local jurisdictions it may not opt out of Secure Communities. (San Jose Mercury News, Oct. 19. 2011)  In an open letter to Delaware Governor John Markell, ICE Director John Morton announced that participation in Secure Communities was no longer dependent upon Memoranda of Understanding (MOUs) between federal and local agencies, and that the Secure Communities program would operate automatically despite objections from local officials.  (The New York Times, Aug. 6, 2011)

The Secure Communities program helps local ICE offices determine when prisons and jails have aliens in their custody.  Under standard practice, the jail or prison sends digital fingerprints to the FBI for a criminal background check.  Then, through Secure Communities, the prints are automatically sent to the Department of Homeland Security for an immigration status check.  Homeland Security then sends back the results of these immigration status checks to local ICE offices, which may then request a local jail or prison to hold an alien so that ICE can take custody of him/her and begin deportation proceedings.  The request from ICE to hold an alien is called a "detainer." (See ICE website: The Secure Communities Process)

Since ICE's announcement that local participation in Secure Communities is mandatory, Santa Clara County and other jurisdictions have retaliated by adopting or proposing policies and ordinances that direct prisons and jails not to honor ICE detainers.  Santa Clara County's new detainer policy provides that the county will only honor ICE detainers placed on those accused of serious and violent felonies — and then only if the federal government provides a written agreement to reimburse all costs incurred by the county. (Santa Clara County Policy 3.54 as Amended, Oct. 18, 2011)  Upon enactment of the policy, local officials in Santa Clara County were brazenly defiant.  "We're very discouraged that the issue keeps getting pushed down to our level, the county level, without any reform at the federal level. So our way of responding to that is, we're not cooperating," said Board of Supervisors President Dave Cortese. (Los Angeles Times, Oct. 18, 2011)

In May 2011, San Francisco County Sheriff Michael Hennessy issued a new policy instructing all sworn officers to only honor ICE detainers issued to aliens charged with misdemeanor offenses if the alien has a felony conviction, two misdemeanor convictions, or has violated domestic abuse laws. (San Francisco Sheriff's Department Inter-Office Correspondence, May 3, 2011)  If the misdemeanor offense is later dismissed and the Sheriff's office still has custody of the individual, the Sheriff's office will refuse to honor the detainer. (See also San Francisco Examiner, May 5, 2011)

In August 2011, New York City Council Speaker Christine Quinn introduced legislation that generally directs city jails not to honor ICE detainers for individuals who do not have a criminal conviction.  (See INT: 0656-2011; The New York Times, Aug. 1, 2011)  Speaker Quinn, who may run for mayor of New York City in 2013, says the legislation will prevent the deportation of as many as 1,000 aliens each year.  (Id.) The legislation provides that the New York City Department of Corrections shall not honor a civil immigration detainer by: (1) holding an individual beyond the time of scheduled release or (2) notifying federal immigration authorities of such individual's release only if the alien (i) has never been convicted of a misdemeanor or felony; (ii) is not a defendant in a pending criminal case; (iii) has no outstanding warrants; (iv) is not and has not previously been subject to a final order of removal; and (v) is not identified as a confirmed match in the terrorist screening database.  (INT: 0656-2011) Mayor Michael Bloomberg has now thrown his support behind the legislation.  (The New York Times, Sept. 30, 2011)

In August 2011, the Cook County (IL) Board of Commissioners adopted legislation ordering the Cook County Sheriff to ignore ICE detainers unless the federal government has agreed in writing to cover all related costs.  (Cook County Code Sec. 46-37) The legislation also provides that the Sheriff shall not give ICE agents access to individuals or allow ICE to use County facilities for investigative interviews or other purposes, and that "County personnel shall not respond to ICE inquiries or communicate with ICE regarding individuals' incarceration status or release dates."  The only exception provided is when ICE agents have a criminal warrant or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws.

On October 19, 2011, D.C. Mayor Vincent Gray signed a sweeping executive order (Order 2011-174) which has the potential to be even more serious than simply directing public safety agencies to ignore ICE detainers.  The provisions not only to direct D.C. public safety agencies to ignore ICE detainers, but also to actively obstruct ICE from deporting aliens who have actually been convicted and incarcerated. 

INA Section 287 and the related regulations (8 C.F.R. 287.7) refer to ICE detainers as merely a "request" directed to local law enforcement officials to hold an alien until ICE is able to assume custody of him or her. Senior ICE officials FAIR interviewed said they were not aware of any federal law that requires local officials to honor ICE detainers, nor did they know of any federal law that sanctions locals for refusing to do so.

Mayor Orders D.C. Police to Disregard Immigration Laws

District of Columbia (D.C.) Mayor Vincent C. Gray issued an executive order Wednesday to prevent district police from enforcing U.S. immigration law. Among other things, the order would prohibit all public safety agencies from inquiring about an individual's immigration status or from contacting U.S. Immigration and Customs Enforcement (ICE) if there is no nexus to a criminal investigation. (See Mayor's Order 2011-174, Oct. 19, 2011)

The scope of Mayor Gray's immigration executive order is sweeping and could have a dramatic impact on public safety in our nation's capital.  The order provides that public safety agencies SHALL NOT:

  1. Inquire about a person's immigration status;
  2. Contact ICE for the purpose of initiating civil enforcement of immigration proceedings that have no nexus to a criminal investigation;
  3. Make incarcerated individuals available for "immigration interviews related to immigration status without a criminal nexus...without a court order";
  4. Detain an individual solely on the belief that he or she is not present legally in the United States or that he or she has committed a civil immigration violation;
  5. Send lists of foreign-born inmates to the Department of Homeland Security; or
  6. Make arrests solely based on administrative warrants for arrest or removal issued by ICE.

Gray's order undermines U.S. immigration law in several ways. First, by prohibiting law enforcement from contacting ICE "for the purpose of initiating civil enforcement of immigration proceedings that have no nexus to a criminal investigation," his order intentionally seeks to prevent federal government from prosecuting common civil immigration offenses such as unlawful presence or overstaying a visa. (See INA §§ 237(a)(1)(B), 222(g)) Second, by prohibiting the Department of Corrections from sending lists of foreign-born inmates to the Department of Homeland Security (DHS), the order directly undermines ICE's Criminal Alien Program (CAP). CAP ensures public safety byidentifying, processing, and removing criminal aliens incarcerated in federal, state, and local prisons and jails throughout the U.S. in an effort to prevent them from being released into the public. Finally, by prohibiting law enforcement from making arrests solely based on administrative warrants for arrest or removal issued by ICE, Mayor Gray's order obstructs the efforts of federal immigration officials to remove illegal aliens from the streets.

In addition, the effect the order will have on the operation of the federally mandated Secure Communities program remains unclear. According to the Washington Examiner, D.C. Police Chief Cathy Lanier said the order merely clarifies the District's already narrow use of the program. She indicated that D.C. law enforcement will not share the fingerprints of arrestees with the FBI (which then shares the fingerprints with DHS for immigration purposes) unless they have committed a "violent" offense.  (Id.; see ICE website: The Secure Communities Process)

Mayor Gray was quick to flaunt his new policy. "This executive order ensures public safety by ensuring that our police resources are deployed wisely and our immigrant communities feel safe cooperating with those who are sworn to protect them," Mayor Gray stated in a press release following the order. "The District is home to thousands of immigrants. If they are afraid to cooperate with authorities on criminal investigations because they fear it might endanger their presence in the United States or the presence of a loved one, then it endangers their public safety and that of our entire city." (Id.)

ICE Authorities Blame Locals for Missing Witness

The decision to release an illegal alien may lead to another illegal alien going scot-free after the death of a 23-year-old man.  Matthew Denice of Milford, Massachusetts, was struck and killed while riding his motorcycle this summer.  (CBS Boston, Aug. 22, 2011)  The suspect, Nicolas Guaman, is an illegal alien who officials say was driving drunk when his car plowed into Denice and dragged him for a quarter mile.  (CBS Boston, Oct. 17, 2011)  Luis Acosta, also an illegal alien, was a passenger in the truck that killed Denice and is considered a key witness in the case against Guaman.  (Milford Daily News, Oct. 20, 2011) 

Immigration and Customs Enforcement caught Acosta two days after the accident and instead of detaining him, placed an ankle bracelet on him pending his testimony before the grand jury in the Guaman case as well as an appearance before an immigration judge in his own case.  (Boston Herald, Oct. 19, 2011) But Acosta cut off his ankle bracelet and fled.  Officials used cell phone reception to trace him to New York's Kennedy airport where they believe he took a flight to Ecuador.  (CBS Boston, Oct. 17, 2011; Milford Daily News, Oct. 20, 2011)

At a press conference last week, Milford's Chief of Police told reporters that ICE officials knew the ankle bracelet was removed five days before they informed local authorities Acosta had absconded.  (Id.)  ICE officials, however, said that their monitoring device had "nothing to do with him being a possible material witness in a criminal investigation.  While Acosta came to [ICE's] attention after the tragic death of Matthew Denice, local jurisdictions have the responsibility for keeping track of possible witnesses in their criminal investigations." (emphasis added)  (Boston Herald, Oct. 19, 2011)  ICE asserts they were only responsible for tracking Acosta with regard to his pending immigration court hearing, and that his monitoring device was for that purpose only.  (Id.) 

The family of Matthew Denice stated on their website that "it is incomprehensible to us that Matthew would be alive if the man who killed him had never entered the United States illegally, and that justice for Matthew will now be more difficult because another man, who was also in this country illegally, has fled the United States. As we have said many times, lax enforcement of law contributed to the criminal activities that led to Matthew's death."  (Facebook.com, Oct. 17, 2011)