Legislative Update: 1/17/2017 
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Legislative Update: 1/17/2017

Gang of Eight Senators Introduce DACA Amnesty Bill

By: Robert Law

Gang of Eight Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bill to legislatively protect illegal aliens with Deferred Action for Childhood Arrivals (DACA). The pro-amnesty senators introduced the bill because President Obama unconstitutionally created DACA through unilateral executive action which means President-elect Donald J. Trump can immediately revoke the program with the stroke of a pen.

The bill, known as the “Bar Removal of Individuals who Dream and Grow our Economy Act” (BRIDGE Act), would give DACA illegal aliens and some who are not yet eligible for DACA permission to remain in the U.S. and work authorization. (S. 128) Specifically, the bill grants “provisional protected presence” to approximately 740,000 DACA, and an untold number of illegal aliens who would eventually age into DACA, for three years as long as the illegal alien has not been convicted of (1) a felony; (2) a “significant misdemeanor” (defined in the bill) or (3) three or more misdemeanors “not occurring on the same date and arising out of the same act.” (Id. at Sec. 2) Additionally, illegal aliens who “pose a threat to national security or a threat to public safety” are ineligible. (Id.) The bill only calls for a “reasonable fee” to apply but provides a list of criteria to get a fee waiver. (Id.) The bill does not explain where the funds will come to process applications from those illegal aliens granted a fee waiver. Worse, the bill limits the Homeland Security Secretary’s ability to rescind “provisional protected presence” to illegal aliens (1) convicted of a felony, significant misdemeanor, or three or more misdemeanors (not same day or same act); (2) pose a threat to national security or public safety; (3) travel outside the U.S. without authorization from the DHS Secretary; or (4) cease to continuously reside in the U.S. (Id.)

In a joint press release, Durbin and Graham emphasized their commitment to rewarding illegal aliens despite the clear opposition from the American people. “In my view, the DACA Executive Order [sic] issued by President Obama was unconstitutional and President-elect Trump would be right to repeal it,” Graham said. (Durbin-Graham Press Release, Dec. 9, 2016) “However, I do not believe we should pull the rug out and push these young men and women—who came out of the shadows and registered with the federal government—back into the darkness. Our legislation continues to provide legal status to them for three years as Congress seeks a permanent solution.” (Id.) Durbin added, “DREAMers have so much to contribute to this country, their country, and they’ve demonstrated their commitment to the United States in countless ways – by opening businesses, becoming doctors and teachers, and serving in uniform.” (Id.) “That’s why I’m proud to work with Senator Graham to ensure that DREAMers are protected from deportation until we are able to provide a permanent fix for our broken immigration system.” (Id.)

So far, the following pro-amnesty senators have cosponsored the bill: Chuck Schumer (D-NY); Jeff Flake (R-AZ); Diane Feinstein (D-CA); Lisa Murkowski (R-AK); and Kamala Harris (D-CA). (S. 128) The companion bill in the House was introduced by pro-amnesty Reps. Luis Gutierrez (D-IL) and Mike Coffman (R-CO). (Gutierrez Press Release, Jan. 12, 2017)

Senator Sessions Vows to Uphold Immigration Laws During Attorney General Confirmation Hearing

By: Shari Rendall

Last week, the Senate Judiciary Committee held a two-day hearing to consider Sen. Jeff Sessions’s (R-AL) nomination to be Attorney General. On the first day, Senator Sessions gave an opening speech about his background and qualifications, and responded to questions from his Judiciary Committee colleagues for nearly 12 hours. The following day, the committee heard testimony from two additional panels, some supporting Senator Sessions and others opposing.

Throughout his day before the committee, Sen. Sessions repeatedly emphasized his commitment to the rule of law. Sessions asked his colleagues to study his record of 20 years working beside them in the Senate saying, “You know who I am. You know what I believe in. You know that I am a man of my word and can be trusted to do what I say I will do. You know that I revere our Constitution and am committed to the rule of law. And you know that I believe in fairness, impartiality, and equal justice under the law.” (Roll Call, Jan. 12, 2017) Prior to joining the Senate in 1997, Sessions was a United States Attorney for the Southern District of Alabama for 11 years and Alabama Attorney General for two.

Importantly, Sen. Sessions told the committee that his role as the nation’s top attorney is different from the role he’s played as a lawmaker. While being questioned by several Democratic committee members about how he would deal with laws he voted against, Sessions aptly responded, “I have a responsibility as a Member of this body [Senate] and I voted the way I believe was correct on issues.” He continued, “That is not the Attorney General’s role. The Attorney General’s role is to enforce the law.” (Senate Judiciary Committee Confirmation Hearing Day 1, Jan. 10, 2017) Senator Sessions’s ability to separate law from personal policy preferences is a significant departure from both of President Obama’s Attorneys General who disregarded laws they disagreed with. Most notably, Loretta Lynch, the current Attorney General, said during her confirmation hearing that she believes illegal aliens have the same "right" to work in the U.S. as Americans and lawful immigrants. (See FAIR Legislative Update, Mar. 3, 2015)

As expected, Sen. Sessions was pressed on what the new administration will do with President Obama’s unconstitutional executive amnesty, the Deferred Action Childhood Arrivals (DACA). When specifically asked whether he would advise President-elect Donald J. Trump to repeal DACA, he responded that a decision “would need to be studied” but that it would be the Department of Homeland Security that would be responsible for the final decision. Underscoring his belief that DACA is unlawful, Sessions said that “the Department of Justice would have no objection to abandoning [Obama’s] order because it is very questionable to the Constitution.” (Senate Judiciary Committee Confirmation Hearing Day 1, Jan. 10, 2017) Regarding our immigration system as a whole, Sessions said, “Fundamentally,we need to fix the immigration system because it has not been working right. We’ve entered more and more millions of people illegally into the country. Each one of them produces some sort of humanitarian concern. But it is particularly true for children. We’ve been placed in a particularly bad situation.” “We need to wrestle with this difficult situation. The best scenario is for the President and Congress to work on a solution and for Congress to pass a law.” (Id.)

Senator Sessions also masterfully handled questions from the biggest amnesty advocates on the committee. When pressed by Gang of Eight Sen. Dick Durbin (D-IL) on Sessions’s objection to a DACA amnesty, Durbin alleged that as Attorney General Senator Sessions would not “use the authority of that office to resolve the challenges of our broken immigration system in a fair and humane manner.” (Id.) Senator Sessions responded, “I’m going to follow the laws passed by Congress. As a matter of policy we disagreed on some of those issues. I do believe that if you continually go through a cycle of amnesty that you undermine the respect for the law and encourage more illegal immigration into America. I believe the American people spoke clearly in this election. I believe they agreed with my basic view, and I think it’s a good view, a decent view, a solid legal view for the United States of America that we create a lawful system of immigration that allows people to apply to this country and if they’re accepted they get in, if they’re not accepted they don’t get in, and I believe that’s right and just and the American people are right to ask for it.” Senator Pat Leahy (D-VT) questioned Sessions whether he supported banning all Muslims from entering the U.S., even though no one associated with President-elect Trump has called for such a ban. In response, Sessions said that he does not believe Muslims as a religious group should be denied admission to the United States.  (CBS News, Jan. 10, 2017) However, Senator Sessions noted that religious convictions “that embrace wanting to harm the U.S., can be taken into consideration in the vetting process and can be grounds to deny someone entry into the country.” (Id.)

In order to be confirmed, Senator Sessions must first receive approval from a majority of the Senate Judiciary Committee and then a majority of the full Senate. The Senate Judiciary Committee vote has not been announced yet but it is expected to come as early as next week. FAIR fully supports Senator Sessions’s candidacy for Attorney General and submitted a letter of support to the committee to be included in the record. Click here to read FAIR’s letter. FAIR is also running a grassroots campaign in support of Sessions’s nomination. To add your name to the campaign, click here.

Senator Sessions’ confirmation hearing can be viewed in its entirety here.

DHS Nominee Kelly: 'The law will guide me' on Immigration Policy

By: RJ Hauman

Last Wednesday, the Senate Committee on Homeland Security and Governmental Affairs held a confirmation hearing for retired Marine Corps Gen. John Kelly, President-elect Donald J. Trump’s choice to lead the Department of Homeland Security (DHS). (Military Times, Jan. 10, 2017) Throughout the hearing, senators repeatedly pressed Kelly for his views on many of President-elect Trump’s positions on immigration policy and border security. (Id.) Specifically, Kelly called for a layered approach to border security and vowed that “the law will guide me” when it comes to immigration policy. (Id.)

Aside from his distinguished war record, Kelly brings extensive knowledge of border issues and Southern Hemisphere governments to the crucial position that oversees U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). (Washington Times, Nov. 27, 2016) Kelly recently retired from his final post as commander of the Florida-based U.S. Southern Command (SOUTHCOM) after nearly half a century of military service. (Id.) As SOUTHCOM commander, his missions included the border with Mexico, as well as counternarcotics trafficking and counterinsurgency. (Id.) This portfolio allowed him regular meetings with Central and South American leaders, relationships that he believes could help in addressing root causes of illegal migration from the region. (Id.)

If he is approved by the committee and then the full Senate, Kelly will face enormous challenges undoing the Obama administration's eight-year effort to dismantle U.S. immigration enforcement capabilities. Kelly will also have to deal with a resurgence in illegal immigration and growing security threats from international terrorist organizations. However, Kelly’s confirmation hearing served to reassure the public that he is up to the task.

Below are some immigration-related highlights of the hearing:

Border Security

Senator John McCain (R-AZ) asked Kelly about President-elect Trump’s pledge to build a wall along the southern border. (Politico, Jan. 1, 2017) While Kelly indicated that he likes the idea of a wall, he believes “a physical barrier in and of itself will not do the job.” (Id.) According to Kelly, border security “has to be a layered approach" with “defenses that include sensors, and most importantly, well-trained and professional men and women.” (Id.) “[Securing the border] starts 1,500 miles south of the Rio Grande," he added, and recommended a plan that deals with factors in South and Central America that fuel northward migration. (New York Times, Jan. 1, 2017) Kelly also drew the important connection between deportation and an overall reduction in border crossings. (Washington Times, Jan. 10, 2017) “I believe that rapidly processing and returning aliens to their countries of origin in significant numbers will help to immediately and significantly reduce the number of individuals and groups trying to enter the country illegally.” (Id.)

Immigration Enforcement

Kelly vowed to uphold the rule of law and signaled that he would ramp up immigration enforcement. (Politico, Jan. 1, 2017) “My understanding is that under current policies, virtually all illegal aliens get a pass until they commit, and are convicted of, a violent crime,” Kelly said. (Id.) "The Congress has passed longstanding laws making foreign nationals without legal status removable from the United States, and it is proper for DHS, like any other law enforcement organization, to faithfully execute the laws on the books." (Id.) When pressed on building a “deportation force” as occasionally mentioned by President-elect Trump during the campaign, Kelly said he believes there are already appropriate laws in place and that he has no plans at this time, “other than enforcement of the law.” (Id.)


Sanctuary Cities

When asked by Sen. James Lankford (R-OK) how he would handle the policies of sanctuary city jurisdictions, Kelly did not take a definitive position, but seemed to acknowledge that they are on the wrong side of the law. (Id.) “If confirmed, I don’t think I have authority to pick and choose what laws need to be followed,” he said. “I understand maybe the perspective of some of the local leaders, but I do think the law is the law." (Id.)

Visa Overstays

General Kelly impressively noted the failure of DHS to track and stop visa overstays. Senator Jon Tester (D-MT) asked Kelly what he will do when an immigrant’s visa expires, and he responded that "we don't have a particularly good system to alert the day after someone's visa expires and it's not until someone is caught doing something wrong.” (Daily Caller, Jan. 10, 2017) He then added that it may be appropriate to “send someone to their house … and ask them why they haven’t departed.” (Id.)

Refugee Vetting

When asked by Sen. Steve Daines (R-MT) how the U.S. could be confident it has completed sufficient background checks on refugees, Kelly expressed doubt. (Politico, Jan. 1, 2017) “One of the problems I think when we're talking about with refugees is they come from countries that are obviously dysfunctional, and Americans feel when you're taking in people [from places] without a lot of the law enforcement bureaucracy, you can't guarantee 100 percent, and if you're taking in people you really can't vet them very well. (Id.)

General Kelly is expected to be easily confirmed as DHS Secretary since Senate Democrats did not include him on the list of 9 nominees they are particularly opposed to. The Senate Homeland Security and Governmental Affairs Committee has not scheduled the vote yet but it is expected to come as early as next week.

General Kelly’s hearing can be viewed in its entirety here.

Obama Ends ‘Wet Foot/Dry Foot” Policy for Cubans

By: RJ Hauman

Last Thursday, President Obama announced the end of a longstanding immigration policy that allows any Cuban who makes it to U.S. soil to stay and become a legal resident. (Associated Press, Jan. 12, 2017) The repeal of the policy, known as “wet foot/dry foot,” is effective immediately. (Id.) The decision was a culmination of months of negations, focused in part on getting Cuba to accept the repatriation of Cuban nationals who are ordered removed from the Unites States. (Id.)

"Effective immediately, Cuban nationals who attempt to enter the United States illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities," Obama said in a statement. (White House Press Release, Jan. 12, 2017) "By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries. The Cuban government has agreed to accept the return of Cuban nationals who have been ordered removed, just as it has been accepting the return of migrants interdicted at sea." (Id.)

FAIR’s President Dan Stein swiftly congratulated President Obama for ending the unfair and illogical “wet foot/dry foot” policy. (FAIR Press Release, Jan. 13, 2017) Over the course of the past eight years, FAIR has often disagreed with President Obama on immigration and has been a frequent critic of his policies,” Stein said. (Id.) “In his final week in office we are pleased to be able to say for once that he has acted wisely in terminating the “wet foot/dry foot policy.” (Id.)

Court Dismisses Claims against Sanctuary Cities in Steinle Case

By: State & Local Government Relations

The U.S. District Court for the Northern District of California ruled last week that despite San Francisco’s refusal to cooperate with federal authorities, the city is not liable for the wrongful death of 32 year-old Kate Steinle. Kate Steinle was killed in July 2015 by an illegal alien after his release from San Francisco custody, pursuant to the city’s sanctuary policy. (Order) The lack of adequate judicial remedies for victims of sanctuary policies underscores the need for legislative reform at both state and federal levels.

The accused murderer, Juan Francisco Lopez-Sanchez, is an illegal alien with seven convictions and five deportations under his belt. (FAIR Legislative Update, July 8, 2015) Lopez-Sanchez was previously in federal custody and would have been deported for the sixth time before he was transported to San Francisco to address a 20 year-old drug charge. (Id.) When the charge was thrown out by the San Francisco District Attorney’s Office, the Sheriff’s Department refused to honor a detainer request to transfer Lopez-Sanchez to ICE. (Id.) Instead, the Sheriff’s Department, pursuant to its sanctuary policy, released Lopez-Sanchez back into the community. (Id.) Just a few months later, Lopez-Sanchez fatally shot Steinle at a popular tourist site in San Francisco.

Steinle’s family filed the wrongful death lawsuit in May against the San Francisco sheriff responsible for the criminal alien’s release, as well as the U.S. Immigration and Customs Enforcement (ICE), and U.S. Bureau of Land Management (BLM). (Fox News, May 27, 2016) The family’s wrongful death claim alleged that then-San Francisco Sheriff Ross Mirkarimi’s sanctuary policy, which prohibited law enforcement from cooperating with ICE’s request to transfer custody of Lopez-Sanchez, is to blame for the killing of Steinle. (Complaint) U.S. District Court for the Northern District of California ruled, however, that the city’s actions were discretionary and therefore city officials are immune from liability. (Order) The Steinle family’s negligence claims against the BLM, relating to the accused murder’s possession of a BLM firearm, are the only claims that will be considered. (Id.)

San Francisco, a self-proclaimed “sanctuary city,” has continued its policy to protect criminal aliens from detection and removal from the United States. (San Francisco Administrative Code) The city’s policy restricts law enforcement from cooperating with federal immigration officials and complying with detainer requests to facilitate the transfer of criminal aliens to federal custody. (Id.) Additionally, the California Trust Act, passed in 2013, prohibits law enforcement in the state from cooperating with federal officials in almost all cases, except where the illegal alien has already been convicted of a serious or violent crime. (AB 4)

Kate Steinle’s murder has motivated lawmakers around the country to eliminate sanctuary policies. Numerous state legislators, including from Texas, Indiana, and Arkansas, have introduced legislation this session to prohibit sanctuary policies in their states and require law enforcement to cooperate with federal immigration officials. Additionally, President-elect Donald Trump energized voters this past election by promising to eliminate sanctuary cities by withholding federal funding from those jurisdictions that refuse cooperation with federal immigration officials. (FAIR's Analysis of Trump Immigration Position; ABC News, Nov. 15, 2016) He blamed sanctuary policies for “so many needless deaths.” (Id.)