Legislative Update: 10/14/2014 
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Legislative Update: 10/14/2014


HHS Grants $9 Million to Lawyers Representing Illegal Aliens

On September 30, the Department of Health and Human Services (HHS) announced it will award $9 million in taxpayer-funded grants for direct legal representation of approximately 2,600 unaccompanied illegal alien minors facing deportation. (Politico, Sept. 30, 2014; Dallas News, Sept. 30, 2014) According to Spokesman Kenneth Wolfe, HHS has previously funded legal access programs that include providing information, legal screenings, and recruitment and training of pro bono lawyers, but this will be the first time it has awarded grants for direct legal representation. (Associated Press, Sept. 30, 2014)

HHS will award the grant to two organizations in FY 2014: the U.S. Conference of Catholic Bishops (USCCB) ($2,226,513) and the U.S. Committee for Refugees and Immigrants (USCRI) ($2,034,755). (Grant announcement, Oct. 1, 2014) The Conference of Catholic Bishops will partner with Catholic Legal Immigration Network, Inc. to use the grant through affiliates in Los Angeles, California; Houston, Texas; Miami, Florida; Baltimore, Maryland; Washington, D.C., Arlington, Virginia; and New Orleans, Louisiana. (CLINIC press release, Oct. 2, 2014) HHS plans to award the remaining $4.7 million in fiscal year 2015. (Grant announcement, Oct. 1, 2014)

The Obama Administration claims HHS has authority to award these grants on the basis of the 2008 trafficking law. In a provision entitled "Access to Counsel," the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 requires that the HHS Secretary ensure "to the greatest extent practicable" that unaccompanied alien minors have counsel to represent them in legal proceedings. (See 8 U.S.C. § 1232(c)(5)) However, Congress specified that this provision "be consistent" with the Immigration & Nationality Act's requirement that illegal aliens' right to counsel be "at no expense to the Government." (Id.) Every published court case to date has rejected the view that the government must appoint counsel at government's expense for immigration proceedings. (See CRS Report at p. 9) Furthermore, the TVPRA requires that HHS Secretary "make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge." (Id.)

These HHS grants are in addition to the $1.8 million that the Department of Justice (DOJ) awarded to 100 lawyers and paralegals representing illegal aliens under age 16 in removal proceedings through the justice AmeriCorps program. (DOJ press release, Sept. 12, 2014) In June, DOJ partnered with the Corporation for National and Community Service (CNCS) to announce the creation of "justice AmeriCorps." (DOJ press release, June 6, 2014) Then, three months later, justice AmeriCorps awarded its first grants to provide lawyers to illegal alien minors to Equal Justice Works, Casa Cornelia Law Center, Catholic Legal Services of Miami, Legal Services of South Central Michigan, the Massachusetts Immigrant and Refugee Advocacy Coalition, the New York Immigration Coalition, and the University of Nevada Las Vegas. (DOJ press release, Sept. 12, 2014)

Stunningly, the ACLU and other legal groups are seeking even more government funding for lawyers. In early July, the ACLU, the Northwest Immigrant Rights Project, Public Counsel, American Immigration Counsel and K&L Gates asked a judge to order taxpayer-funded counsel for all illegal alien minors in removal proceedings. (See ACLU Complaint, July 9, 2014; see also FAIR Legislative Update, July 22, 2014) A few weeks after filing their complaint, the ACLU filed an urgent motion asking the judge to order the Executive Office of Immigration Review (EOIR) to delay the illegal aliens' deportation proceedings. (ACLU Motion, July 31, 2014) However, last Monday, U.S. District Court Judge Thomas Zilly denied that request on ripeness grounds, arguing the illegal aliens had not yet requested delays from EOIR and there was no indication that EOIR would not fairly accommodate requests for continuances. (Court Order, Sept. 29, 2014) Judge Zilly deferred ruling on the request for the U.S. to provide counsel at government expense.

The Obama Administration will award $9 million for direct legal representation, despite the fact that the neither chamber in Congress passed any of the President's requested funding for legal counsel. The House passed a supplemental funding bill without any funding for lawyers, (See FAIR Legislative Update, Aug. 5, 2014). Although the Senate considered a bill incorporating the President's request for funding (See FAIR Legislative Update, July 15, 2014), the Senate failed to pass such legislation. (See FAIR Legislative Update, Aug. 5, 2014)

DHS Secretary Touts Efficacy of Border Security Efforts

Last Thursday, in a speech at the Center for Strategic and International Studies, Department of Homeland Security Secretary Jeh Johnson insisted that dramatic improvements in border security have made crossing the border illegally "much harder" and that "people know that." (DHS Press Release, Oct. 9, 2014; CSIS.org, Oct. 9, 2014) His speech, he said, was part of a commitment to "transparency" and was meant to counter the American public's impression "in the absence of facts" that we have a "porous" border. These claims come only three months after the Administration asked Congress to provide an additional $3.7 billion in emergency funding to address the surge of illegal alien minors across the southern border. (Id.; see FAIR Legislative Update, July 15, 2014)

First, Secretary Johnson touted the money and resources that have been allocated to border security. In particular, he noted that the budget, manpower, and technological resources have increased significantly from 2000 to 2014. (DHS Press Release, Oct. 9, 2014) Specifically, he noted that the Border Patrol now has a budget of $3.5 billion; that it had 8,619 border patrol agents in FY 2000, and now it has 18,127; that it had built only 57.6 miles of primary fence in FY 2000, and now it has built 352.7; and that between FY 2000 and now the Border Patrol has acquired more aircraft, underground sensors, unmanned aerial systems, vessels, mobile surveillance systems, mobile video surveillance systems, remote video surveillance systems, night vision googles, and thermal imaging capabilities. (Id.) Interestingly, he seemed very willing to let the Obama Administration to take credit for the substantial increase in resources allocated to border security — which was actually accomplished by Congress, and even then mostly during the Bush Administration. (See DHS Budget) The one border security measure the Secretary glibly dismissed the consideration of was the fence, something Congress ordered the government to do. Perhaps Secretary Johnson forgot that both President Obama and Hillary Clinton voted for the border fence during the 2007 Senate debate on the Bush-Kennedy amnesty bill. (DHS Press Release, Oct. 9, 2014)

Second, Secretary Johnson made the absurd claim that illegal immigration is down because apprehensions are down. He stated that apprehensions have declined from 1.6 million in 2000 to 400,000 a year in recent years. However, apprehensions are not an accurate measure of illegal immigration because they do not represent the number of illegal aliens who have evaded the Border Patrol. (Washington Times, Jan. 9, 2013; GAO Report, Jan. 9, 2013; see also FAIR Analysis, February 2013) The number of apprehensions is also easy to manipulate, as the Administration can direct the Border Patrol away from high traffic routes as well as towards them. Finally, even if apprehension declines were a reliable measure of increased border security, Border Patrol apprehensions have gone up 24% between FY2011 and FY2013. (Customs and Border Protection apprehension data) Therefore, if apprehensions are a reliable measure of illegal immigration as Secretary Johnson claims, he would therefore have to admit that illegal immigration has increased 24 percent in the past two years.

Finally, Secretary Johnson's claim that DHS' success in securing the border is apparent in the leveling off of the illegal alien population since 2006, as estimated by the Pew Research Center. (DHS Press Release, Oct. 9, 2014) This claim, however, is also suspect as such a leveling off is the result of the complete gutting of interior by the Obama Administration. (Id.; see also FAIR Legislative Update, Sept. 9, 2014)

Even if the Secretary's assertions that the Border Patrol has improved in its ability to capture border crossers are accurate, success by the Border Patrol does not alone solve the problem of illegal immigration. Researchers estimate that 30 to 40 percent of the illegal alien population consists of visa overstayers, not border crossers, and thus securing the southern border only addresses part of the problem of illegal immigration. (See Breitbart, Apr. 8, 2013)

The Secretary also attempted to allay public concern over reports that four individuals with ties to the Islamic State of Iraq and Syria (ISIS) had been apprehended crossing the border. (DHS Press Release, Oct. 9, 2014) He did so by claiming that the four individuals were members of the Kurdish Worker's Party, not ISIS. (Id.) Even if true, the fact that nationals from any country in the Middle East thought crossing the Southern border was their best hope of entering the U.S. belies Secretary Johnson's suggestion that the situation at the U.S.-Mexico border is under control.

Though in his prepared remarks, the Secretary did not mention the President's upcoming plans for executive actions after the midterm elections, he did affirm in response to a question that the President is still committed to granting an executive amnesty between the elections and the end of the year. (CSIS.org, Oct. 9, 2014) When asked what those actions would be, he did not elaborate further, despite having ended his speech by promising a commitment to "transparency." (Id.) He merely stated that he and the President were developing a set of reforms to "fix our broken immigration system" in the absence of Congressional action. (Id.)

House Homeland Security Chairman Unveils Border Blueprint

Last week, House Homeland Security Chairman Michael McCaul (R-TX) released his "Blueprint for Southern Border Security" (Blueprint), calling it "the first step to providing Americans the secure border they demand and deserve." (McCaul Press Release, Oct. 6, 2014) In the lengthy, 42-page report, McCaul identifies six goals for securing the border as well as recommendations for action in each sector of the Border Patrol. (See Blueprint at 10) Still, a closer inspection of the blueprint reveals that it is more a criticism of the Obama Administration's failure to secure the border rather than a concrete solution to the problem.

First, the blueprint focuses on how to achieve operational control and situational awareness of the Southern border. The blueprint calls operational control "the desired end state of national border security" which requires full situational awareness — defined by McCaul as "a complete picture as to whom and what are crossing the border." (Id. at 3) Noting that earlier this year radar revealed that Border Patrol agents apprehend less than half of illegal border crossers, the report calls for a combined approach using agents on the ground and technology to achieve situational awareness. (Id.see FAIR Legislative Update, Apr. 8, 2013) "The record number of Border Patrol agents alone will never be able to bring about complete situational awareness. However, technology can fill this void," McCaul argues. (Blueprint at 3) Interestingly, the report appears to discount completing the border fence — which is required by law — saying "fixed towers and fencing... is not however, a panacea that will work across the entire border." (Id. at 4)

Next, the blueprint focuses on developing proper metrics to measure border security since the Obama Administration abandoned the metric of "operational control" in 2010 and has failed to produce a new metric. (Id. at 5; see FAIR Legislative Update, Mar. 25, 2013) "Assuming the border is secure because billions of dollars have been spent on additional resources and Border Patrol agents is a bad assessment," McCaul charged, calling such input based metric "flawed." (Blueprint at 5) Instead, McCaul recommends outcome-based metrics that "measure data such as illegal border crossing effectiveness rate, illicit drug seizure and removal rate, and cocaine seizure and removal rate." (Id. at 6)

Additionally, McCaul creates a threat level scale that identifies, in his opinion, how secure each of the nine sectors along the Southern border are in combating illegal immigration and drug cartel activity. Along with the scale, which ranges from low to high, McCaul provides a list of "recommended additional resources" to obtain operational control. The blueprint identifies more than half of the border sectors as "low threat": San Diego, El Centro, Yuma, El Paso, and Big Bend. (Id. at 10, 13, 16, 22, 25) McCaul assesses Tucson, Del Rio, and Laredo sectors as "medium-risk" and suggests increasing unmanned aerial surveillance but no additional border fence in these sectors. (Id. at 16, 28, 31) Finally, the blueprint labels Rio Grande Valley as the only "high-threat" sector and suggests a manpower "surge" plus increased unmanned aerial surveillance but not additional border fence. (Id. at 34)

Yet, while McCaul accurately criticizes the Obama Administration's refusal to secure the border, the blueprint lacks teeth to produce a better outcome. First, the blueprint's definition of "operational control" is nearly identical to language in McCaul's Border Security Results Act (H.R. 1417), a limited border bill that shares many of the flaws of the Senate mass guest worker amnesty bill (S. 744) and is co-sponsored by pro-amnesty Rep. Sheila Jackson Lee (D-TX). (See FAIR's H.R. 1417 Resources) More importantly, the blueprint provides no mechanism to require the Homeland Security (DHS) Secretary to actually obtain operational control and situational awareness of the Southern border. Additionally, the blueprint fails to provide for a funding mechanism for the recommended resources and the lists offer little explanation how he reached those numbers.

Curiously, McCaul's plan also addresses interior enforcement which, legislatively, is the jurisdiction of the Judiciary Committee. Calling for a "layered approach" to enforcement, the blueprint recommends enhanced penalties for illegal aliens captured by Border Patrol agents and Immigration and Customs Enforcement (ICE) officers that will "significantly reduce the likelihood of recidivism." (Id. at 6) McCaul also advocates for increasing Operation Streamline, a program run by Customs and Border Protection (CBP), the Department of Justice (DOJ), and U.S. District Judges that seeks to encourage and expedite the prosecution of aliens for illegally crossing the border, that the Obama Administration is reportedly dismantling despite the program's success. (Id.; see FAIR Legislative Update, Sept. 16, 2014) Noting that local law enforcement "play a vital role" in interior enforcement, McCaul also recommends providing "[p]roper funding" for the 287(g) program – a congressionally established program that trains local police to identify and detain illegal aliens – that the Obama Administration has essentially eliminated. (See Blueprint at 7)

Finally, McCaul's blueprint provides two recommendations to further improve border security but offers no details on how to implement these ideas. First, he generically calls for improving interagency coordination to produce "unity of effort." (Id. at 8) Additionally, he suggests DHS should "work" with leaders in Mexico, Central America, and South America to address illegal immigration. (Id.)

Understanding the blueprint's shortcomings is important because it is likely to be the foundation of any immigration bill moved in the next Congress. With Republicans expected to keep control of the House, McCaul — who is a close ally of Speaker John Boehner (R-OH), is poised to retain the chairmanship of the Homeland Security committee. Given the close relationship between McCaul and Boehner, and the Speaker's desire to pass immigration reform, there is a distinct possibility that Boehner's staff, led by pro-amnesty Becky Talent, played a significant role in drafting the document.

Growing Number of Officials Troubled by Obama's Ebola Response

Last Wednesday, the Centers for Disease Control and Prevention (CDC) announced that it would strengthen screening measures to prevent the Ebola virus from reaching the United States. However, these measures will not include a ban on travel for nationals from the affected areas. (CDC Press Release, Oct. 8, 2014; CDC.gov)

The CDC's new measures consist of enhanced screening at five U.S. airports and a new tracking program for all people entering the U.S. from Ebola affected countries. (CDC Press Release, Oct. 8, 2014) The screenings will take place at New York's JFK, Washington-Dulles, Chicago O'Hare, and Atlanta international airports, which receive 94% of travelers from Guinea, Liberia, and Sierra Leone. (Id.) At these airports, travelers from these countries will be given a questionnaire, medical staff will take their temperature with a non-contact thermometer, and they will receive health information for self-monitoring. (Id.)

Even before these enhanced measures, all outbound passengers in the affected countries were already going through similar screenings at the beginning of their journey. (Id.) Thus the new screening arguably has only marginally strengthened public health security: Ebola infected travelers, like Thomas Eric Duncan, still may provide inaccurate answers to the questionnaire, and may still be in the incubation period and asymptomatic when they reach their destination in the United States. (See FAIR Legislative Update, Oct. 7, 2014; NBC News, Oct. 3, 2014). Indeed, even symptomatic travelers may evade detection as non-contact thermometers are unreliable, and infected individuals may have taken medicine such as ibuprofen to mask their fever. (Id.)

Given these concerns, it is unsurprising that many Congressmen have questioned the sufficiency of these measures, with a growing number of both Democratic and Republican officeholders calling for some sort of flight ban. (The Hill, Oct. 9, 2014) For instance, twenty-six lawmakers, including three Democrats, sent a letter to the President last Wednesday urging him to immediately halt travel, or at least consider quarantining such travelers, from West African countries affected by Ebola. (Ebola Virus Letter, Oct. 8, 2014) "You have suggested that you will not take such action until the World Health Organization (WHO) recommends it," the letter stated. (Id.) They urged the President not to "pass the buck" to WHO, which has no "duty to protect the lives and well beings of Americans, as you do." (Id.) True immigration reformer Sen. David Vitter (R-LA) also questioned whether the Administration ought to start barring foreign nationals from affected countries from entering the U.S., in a letter to the Appropriations committee regarding the Administration's request to shift $ 1 billion in funds to Ebola prevention. (The Hill, Oct. 8, 2014)

Last Friday, several members of the House of Representatives grilled witnesses from the CDC and the Department of Homeland Security (DHS) over why the Administration is refusing to consider restricting travel during a field hearing conducted by the House Homeland Security Committee. (Committee on Homeland Security, Oct. 10, 2014) Doctor Toby Merlin, the CDC director in charge of emerging infectious diseases, testified that while the U.S. is not in danger from travelers coming to the country with Ebola, unrestricted travel between the affected areas and the rest of the world is crucial to preventing the disease from becoming endemic in Africa. (BGov Transcript, Oct. 10, 2014) Doctor Kathryn Brinsfield, Chief Medical Officer at DHS, also stated that Americans are safe, as the disease is one that "preys" on places with poor public health and infrastructure, unlike the U.S. (Id.) They also expressed confidence that international experts, who have never failed to stop an outbreak before, know how to stop this one, even though no previous Ebola outbreak has been as extensive. (Id.)

These responses, however, did not seem to satisfy some Representatives, who said they still could not understand why commercial travel and granting visas to nationals from the affected countries are necessary to continue sending in aid workers and supplies. These supplies and workers could travel on planes expressly chartered for the purpose, they argued. (Id.) After pointed pressing from Rep. Joe Barton (R-TX), Dr. Merlin responded that "time is of the essence," and "experience" shows that "interruptions" in air travel "impede" the public health response because "military workarounds are difficult." (Id.) However, this response satisfied neither Rep. Barton nor several of the questioners following him. (Id.) When Rep. Barton also pressed all of the witnesses as to who had made the decision against travel restrictions, none answered directly. (Id.) Doctor Brinsfield stated that she, at least, "deferred to the interagency process that's ongoing" under the president. (Id.) Representative Michael Burgess (R-TX), who actually practiced at the hospital in Texas which treated Thomas Eric Duncan, asked how large the Ebola epidemic would have to grow before the witnesses would recommend travel restrictions. (Id.) Doctor Merlin only answered that already "all stops need to be pulled out" to prevent more people in Africa from getting the disease. (Id.)

While the panel before the Homeland Security Committee tried to assure the public that Americans should not be anxious over Ebola because of the nation's public health infrastructure, certainly not all nations currently within reach of travelers from affected countries are in as safe a position. In fact, three days before the hearing, Marine Corp General John F. Kelly had brought up this concern, noting that Americans should begin to consider what might happen if the disease spreads to countries that are much closer neighbors to the U.S. but don't have the same public health advantages. (Department of Defense News, Oct. 8, 2014) He told an audience at National Defense University that the potential spread of Ebola into Central and South America is a real possibility that could result in drastic consequences here in the United States. (Id.) He said that, by the end of the year, the CDC believes that 1.4 million people could be infected with Ebola, and that if some make their way to the Western Hemisphere, many countries have little ability to deal with the disease, and thus, as it does in West Africa, "it will rage for a period of time." (Id.) If the disease gets to countries like Haiti, Guatemala, Honduras, or El Salvador, he speculated, it will cause a panic, and there will be a mass migration to the U.S. of people trying to avoid infection, or to seek treatment if they suspect they are infected. (Id.) "If it breaks out, it's literally ‘Katie bar the door." (Id.)

Although Ebola has not reached Central America yet, nationals from affected countries in Africa already have. General Kelly himself mentioned that when he visited the border of Costa Rica and Nicaragua with U.S. embassy personnel, he found a group of men from Liberia waiting to pass into Nicaragua and then proceed to the United States illegally through transnational criminal smuggling networks. (Id.) Indeed, the Border Patrol has reported capturing illegal aliens from Ebola stricken areas on the Southern border for some time: 112 from Guinea, 231 from Liberia, and 145 from Sierra Leone in the 2013 fiscal year. (valleycentral.com, Oct. 3, 2014) While it would be possible, as General Kelly also pointed out, for illegal aliens from currently Ebola stricken countries to reach the United States within the Ebola incubation period, perhaps even worse damage would ultimately follow if such aliens were stricken on route to the United States and caused an outbreak in Central America. (Department of Defense News, Oct. 8, 2014) Such concerns point to the potential extreme consequences that failure to secure the U.S. border may have in a world where air travel makes global pandemics a real possibility.

Despite last week's claims of confidence in the nation's public health infrastructure, the CDC said on Monday that it was starting to "rethink" its Ebola strategy after a Dallas nurse who treated Thomas Eric Duncan was diagnosed with Ebola over the weekend. (The Hill, Oct. 13, 2014)

myE-Verify Launches Social Security Number Locking Tool

Last Monday, U.S. Customs and Immigration Services (USCIS) launched a new tool, called Self Lock, designed to combat illegal aliens who steal identities in order to game E-Verify. (USCIS press release, Oct. 6, 2014) The new Self Lock service accomplishes this by allowing a registered myE-Verify user to stop any use of that user's social security number within E-Verify. (USCIS website, Sept. 23, 2014)

House Judiciary Chairman Bob Goodlatte (R-VA) praised the creation of Self Lock saying, "Americans now have an easy way to prevent people from using their Social Security numbers to work unlawfully in the United States." (Goodlatte press release, Oct. 6, 2014) Chairman Goodlatte also commended the House Judiciary Committee for voting a bill out of committee with a similar social security number lock program. (Id.; see also House Judiciary markup of H.R. 1772, June 26, 2013) That bill was Representative Lamar Smith (R-TX)'s Legal Workforce Act (H.R. 1772), which would also make E-Verify mandatory for all U.S. employers. To date, the House has not brought H.R. 1772 to a floor vote. In a 2013 survey, 92% of users reported that E-Verify is effective in screening new employees. (E-Verify Survey Report, Apr. 30, 2014)

TSA Will Accept Illegal Aliens Driver's Privilege Card as ID to Board Aircrafts

Last week, the Transportation Security Administration ("TSA") confirmed, contrary to claims made by illegal alien lobby organizations, that it will allow illegal aliens to board commercial airlines by presenting an Oregon driver's privilege card. (Politifact Oregon Oct. 7, 2014) Oregon's driving privilege cards will be given to illegal aliens, or any applicant who cannot prove that he or she has lawful presence in the United States, and is set for consideration by Oregon voters on November 4th under Ballot Measure 88. (Id.)

The controversy arose when Lars Larson, a talk show radio host based in Portland, made public letters he received from TSA stating the agency would accept Oregon's driver's privilege card for identification at the airport. (Id.) This admission is important because the language that appears on the ballot for Measure 88, referred to as its ballot title, says: "The driver card may not be used as identification for air travel, to enter a federal building, to register to vote or to obtain any government benefit requiring proof of citizenship or lawful presence in United States." (Measure 88) Causa Oregon, a local illegal alien lobbying group, insists on this point. (Politifact Oregon, Oct. 7, 2014) "Ballot Measure 88 clearly states that it will be issued only to grant driving privileges, and prohibits use of the driver cards for anything other than the listed purposes," said spokesman Erik Sorensen in an email to Politifact Oregon. (Id.)

Politifact Oregon contacted TSA to investigate Lars Larson's claims. (Id.) Nico Melendez, a Western Region TSA spokesman in California, responded, "State-issued driver cards would be acceptable forms of identification for our document-checkers at the airport. At this point, the understanding is that a card like this would be an acceptable form of identification." (Id.) He further commented, "What we are doing is verifying that the person who shows the card is the person who is traveling. It's not an immigration check." (Id.)

TSA's admittance that it will accept illegal aliens' driving privilege cards as a valid form of identification to board an aircraft is especially disturbing considering recent national security threats. Unlike legal immigrants, illegal aliens are not subject to stringent background checks or face-to-face interviews to determine the existence of any public safety or national security threat they might pose. Illegal aliens usually do not have valid U.S. identification or work authorization documents. Therefore, they depend on foreign or forged documents to travel on commercial airlines.

Although REAL ID Act was passed to solve this problem, it has yet to be implemented by the federal government. The REAL ID Act was passed in 2005 in response to the terrorist attacks to the United States on September 11, 2001 when the 9/11 Commission found that the 19 terrorists involved in the attack carried among them over 30 state driver's licenses and identification cards. (9/11 Commission Report) The Act prohibits federal agencies from accepting driving privilege cards issued to illegal aliens for federal identification purposes. (REAL ID ACT of 2005) The Obama administration repeatedly pushed back implementation of REAL ID, and currently purports its implementation deadline for these provisions to be January 2016. (Department of Homeland Security FAQ on REAL ID)