Legislative Update: 11/24/2014 
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Legislative Update: 11/24/2014


President Obama's Immigration Orders Sweeping in Scope

As President Obama concluded his prime-time speech last Thursday, Homeland Security Secretary Jeh Johnson released ten immigration policy memoranda that are sweeping in the number of aliens they cover and the relief they provide. Combined, the policy memos apply to approximately 5 million illegal aliens in the U.S. and an untold number of aliens outside the U.S. who will be allowed to enter the U.S. under new policies designed just for them. In terms of relief, the policy memos offer illegal aliens relief spanning from deferral of deportation and work authorization to a pathway to citizenship. They also create special exceptions for certain workers seeking to enter the U.S. 

While the detail covered in the memos is breathtaking, below is a short summary of some of the major
changes to immigration law made by the Johnson Memos. 

Expansion of DACA. The Johnson Memos significantly expand the existing Deferred Action for Childhood Arrivals (DACA) program. Currently, the DACA program grants a two-year reprieve from deportation and work authorization to aliens who:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the U.S. before reaching their 16th birthday;
  3. Have continuously resided in the U.S. since June 15, 2007;
  4. Have been physically present in the U.S. on June 15, 2012, and at the time of application;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety; and
  8. Are at least 15 years or old at the time of application.

(See FAIR Legislative Update, June 19, 2012; see also DACA Guidelines).

The Johnson Memos expand DACA to cover an additional 270,000 illegal aliens. This is accomplished mainly by eliminating the age requirement (#1) and changing the date-of-entry requirement form June 15, 2007 to January 1, 2010 (#3). The Johnson Memos also extend the length of deferred action granted from two-year increments to three-year increments, which applies to new applications and renewals submitted November 24th or later. And, as with the original DACA program, DHS will grant work authorization to DACA beneficiaries. USCIS will start accepting applications 180 days from the date of the memo, November 20, 2014.

New Deferred Action Program. The Johnson Memos create a new deferred action program, similar to DACA, to grant approximately four million illegal aliens reprieves from deportation and work authorization. To be eligible, alien applicants must, on the date of the memo:

  1. Have a son or daughter who is a citizen or green card holder (legal permanent resident);
  2. Have continuously resided in the U.S. since before January 1, 2010;
  3. Be physically present in the U.S. and be physically present at the time of the request for deferred action;
  4. Have no lawful status
  5. Not be an enforcement priority (as redefined by the Johnson Memos)
  6. Present no other factors that make the grant of deferred action inappropriate.

Aliens who apply must also submit digital fingerprints and submit to background checks. Like the expanded DACA program, beneficiaries of this program will receive deferred action in three-year increments. USCIS will begin accepting applications 180 days after the date of the memo, November 20, 2014.

Permission for Certain Illegal Aliens to Apply for Green Cards in the U.S. The Johnson Memos also allow the statutorily mandated 3 and 10-Year Bars for spouses and children of legal permanent residents (green card holders), and adult children of citizens and legal permanent residents.

Congress added the 3 and 10 year bars to Section 212 of the INA in 1996 to help deter illegal immigration and marriage fraud. Section 212 provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years. (See INA § 212(a)(9)(B)(i)) Current law allows USCIS to waive unlawful presence, and thus the 3 and 10-year bars, for spouses or minor children of citizens and LPRs, but the illegal alien must show "extreme hardship" to the citizen or LPR and apply for the waiver outside of the U.S. at a consular office. (INA § 212(a)(9)(B)(v))

In January 2013, DHS by rule created a categorical waiver for spouses, parents and minor children of U.S. citizens (otherwise known as immediate relatives). This rule permits these immediate relatives to be eligible for provisional waivers of the 3 and 10-year bars and apply for green cards from within the U.S. (See USCIS Final Rule, Jan. 3, 2013; see also Sec. Napolitano Press Release, Jan. 2, 2013) In January 2014, DHS issued guidance to immigration officers not to deny applications simply because the applicant has a criminal background. (FAIR Legislative Update, Mar. 26, 2014)

The Johnson Memos now expand the categorical waiver of the three and ten-year bars to other relatives. Specifically, the Memos order USCIS to issue new regulations permitting spouses and minor children of LPRs and adult children of citizens and LPRs to be eligible for waivers and apply for their green cards from within the U.S. The Johnson Memos also order USCIS to re-define the term "extreme hardship" (required to receive a waiver) to include family ties to the U.S. and home country, conditions in home country, age of citizen or LPR, length of residence in U.S., health conditions, financial hardships, educational hardships. 

Establishment of New Enforcement Priorities. The Johnson Memos rescind the Morton Memo that initially established the Obama Administration’s immigration enforcement "priorities" and replace them with new priorities, effective January 5, 2015.

The Morton Memos, issued in 2011, set three priorities for immigration enforcement under the Obama Administration:

  1. Aliens who pose a threat to national security or public safety, which includes all aliens convicted of crimes, including aggravated felonies (which has its own definition), felonies, and misdemeanors;
  2. Recent illegal entrants (defined within prior three years); and
  3. Aliens who are fugitives or otherwise obstruct immigration controls.

The Johnson Memos set new priorities for immigration enforcement that lower the priority for aliens convicted of misdemeanors and aliens who illegally entered the U.S. before January 1, 2014. Under the Johnson Memos, the administration’s enforcement priorities are as follows:

  1. Aliens who pose a threat to national security, border security, or public safety
    • Includes aliens apprehended at the border
    • Includes aliens convicted of a felony (except an immigration-related felony) and aliens convicted of aggravated felonies
  2. Misdemeanants and new immigration violators
    • Three or more misdemeanors, except traffic offenses
    • Aliens convicted of a "significant" misdemeanor
    • Aliens who have not been continuously present in the U.S. since January 1, 2014
    • Aliens who have "significantly abused" the visa or visa waiver program
  3. Aliens who have been issued a final order of removal after January 1, 2014

Importantly, the Johnson Memos require ICE agents to get the approval of their ICE Field Office Director to approve the removal of any illegal alien not in these three categories.

Termination of Secure Communities; New Restrictions on Detainers. The Johnson Memos terminate the Secure Communities Program, a program that was responsible for identifying tens of thousands of criminal aliens for removal. Secure Communities was created in 2008, when Congress directed the Executive Branch to develop a program to identify and remove criminal aliens in custody at the state and local level. Secure Communities works by comparing fingerprints of all individuals booked into state and local jails to Homeland Security databases and flagging those individuals who are deportable aliens.

The Johnson Memos replace Secure Communities with a program called the "Priority Enforcement Program" designed to deport convicted criminals by using fingerprints and working with the Justice Department to remove illegal aliens in federal prisons. However, the Johnson Memos suggest ICE should continue use digital finger prints to identify and remove criminal aliens in the custody of state and local jails.

The Johnson Memos also direct ICE to stop issuing detainers in most instances. A detainer is a request made by immigration agents to state and local jails to hold a criminal alien for 48 hours at the time of release in order to allow federal agents to assume physical custody of the alien. Pursuant to the Johnson Memos, however, federal agents seeking to deport a criminal alien in state or local custody will merely ask the local agency to notify them of the alien’s pending release.

Moreover, the Johnson Memos provides ICE should only seek the transfer of custody of criminal aliens released by state and local jails if the aliens that fall into the following categories:

  • Aliens suspected of terrorism
  • Gang-related convictions
  • Aliens convicted of felonies (non-immigration related)
  • Aliens convicted of aggravated felonies
  • Aliens convicted of three or more misdemeanors
  • Aliens convicted of a "significant misdemeanor"

Note to readers: The summary above covers merely a portion of the President’s Executive Amnesty as set forth in the Johnson Memos. Please stay tuned for updates and more information as we are able to make it available. 

Congressional Republicans Split on Funding Strategy Post-Executive Amnesty

Congressional Republicans are divided over the strategy for funding the federal government in the aftermath of President Obama's executive amnesty. While conservatives insist on including language that defunds the executive amnesty in any budget bill, others — led by House leadership and House Appropriations Chairman Hal Rogers (R-KY) — want to keep the issues separate. Congress is out of session until December 1 and the current budget deal expires on December 11. (See P.L. 113-164, Sec. 106)

House Appropriations Chairman Hal Rogers, who runs the committee responsible for drafting the funding bill, wants a "clean" appropriations bill. In an op-ed last week, Rogers called for "regular order" for the appropriations process which he defined as "enacting funding bills on time… without the specter of government shutdowns or the lurching, wasteful and unproductive budgeting caused by temporary stopgap measures." (Roll Call, Nov. 17, 2014) In a closed-door House GOP meeting before the President's announcement, Rogers proposed that the House utilize a "rescission" bill, meaning the House first passes an omnibus spending bill that fully funds the government and separately passes a bill that rescinds funding if the President takes certain action. (CQ Today, Nov. 18, 2014) Representative Tom Cole (R-OK) defended this approach, "We're just saying that just because we've passed an omnibus doesn't mean we've lost the ability to impact the purse. We can change the current spending in a year any time we choose to, and we'll be in a lot better position with a Republican Senate to do something like that next year." (Id.)

Then, after rank-and-file members expressed skepticism towards the rescission approach (and just hours before Obama's announcement), Rogers unexpectedly claimed it would be "impossible" to defund the executive amnesty through a government funding bill. (The Hill, Nov. 20, 2014) "We cannot, literally cannot, defund [U.S. Citizenship and Immigration Services (USCIS)] in an appropriations bill because we don't appropriate that agency. That agency is entirely fee funded," said Rodgers' spokesperson Jennifer Hing. (Id.) Seeking to clarify this original statement, Rogers subsequently said "it would take a change of law, an authorization" to change USCIS fee structure. (CQ Today, Nov. 20, 2014)

Although USCIS is primarily funded by fees, it is inaccurate to claim that Congress cannot defund the President's executive amnesty. Congress could use the appropriations bill to bar USCIS the ability to access its funds. Indeed, the power of the purse (meaning the authority to determine how and where federal dollars are spent) is clearly bestowed on the legislative branch in the Constitution: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." (U.S. Constitution, Art. I, Sec. 9, Clause 7) Additionally, it could also use the appropriations bill to bar any other agency related to the executive amnesty from using any of its funding to carry out the President's orders.

Conservatives blasted Rogers' claim that Congress cannot use its "power of the purse" to defund the executive amnesty. True immigration reformer Sen. Jeff Sessions (R-AL) declared, "Congress has the power to block this." (Breitbart News, Nov. 20, 2014) "Congress can fund programs it deems worthy and not fund those that it does not." (Id.) Similarly, true immigration reformer Rep. Steve King (R-IA) said, "That's been a convenient argument but not one that's been fully sustained by the decisions of our leadership over the last three or four years." (CQ Today, Nov. 20, 2014) Representative Tim Huelskamp (R-KS), added, "There are always riders on appropriations bills …any money spent out of the Treasury is our responsibility and we have to sign off on that." (CQ Today, Nov. 20, 2014)

In the aftermath of President Obama's executive amnesty, the GOP is now considering two additional options. First, some are calling for a short term funding bill (called a continuing resolution) that maintains current funding levels until after Republicans take control of the Senate in January. Senate Appropriations Ranking Member Richard Shelby (R-AL) said the executive action "poisons the waters" for an omnibus, which is his preferred approach. (CQ Today, Nov. 19, 2014) When asked the likely approach Congress will take, Shelby said, "I think it would lean toward the other way, to a CR." (Id.) Still, others do not want to wait until 2015 to pursue defunding the executive amnesty. Under this strategy (being referred to as the hybrid approach), Congress will fully fund the government except for the Department of Homeland Security (DHS). Then, Congress will separately pass a DHS funding bill that includes the executive amnesty defunding language. Representative John Fleming (R-LA) promoted this strategy saying, "We want a scalpel approach. We want to limit where it's going to have the most benefit." (CQ Today, Nov. 19, 2014)

While House Republicans consider their next move, administration officials declared that President Obama will veto any legislative attempt to defund his executive amnesty. In other words, President Obama has declared that preserving his executive amnesty is more important than funding the federal government.

Citing Ebola, Obama Administration Allows Nationals from Guinea, Liberia, and Sierra Leone to Stay in U.S.

Last Thursday, Department of Homeland Security (DHS) Secretary Jeh Johnson announced that nationals from Guinea, Liberia, and Sierra Leone are eligible for protection from deportation, grants of work authorization, and travel authorization for eighteen months. (USCIS Press Release, Nov. 20, 2014) DHS is affecting this change by granting nationals from these countries, whether legal or illegal, Temporary Protected Status (TPS). DHS estimates these grants of TPS will apply to 8,000 West Africans. (Liberia TPS Notice, 79 Fed. Reg. 69502-69506 (Nov. 21, 2014); Guinea TPS Notice, 79 Fed. Reg. 69511-69515 (Nov. 21, 2014); Sierra Leone TPS Notice, 79 Fed. Reg. 69506-69511 (Nov. 21, 2014))

In the announcement, the Obama Administration cites the Ebola outbreak as the reason for granting TPS to these West African nationals. However, this justification is questionable. Indeed, federal law permits DHS to grant temporary protected status when returning foreign nationals to their home country would be dangerous to those individuals due to the foreign country's:

  1. ongoing armed conflict;
  2. natural disaster, epidemic, or other environmental disaster; or
  3. extraordinary conditions, as determined by the attorney general. (INA § 244(b)(1))

However, with respect to natural disasters, epidemics, or environmental disasters (paragraph B), other conditions must be met before DHS can grant TPS to the nationals of a specific country. Namely, the foreign state must both be temporarily unable to adequately handle the return of its nationals and officially request designation under TPS. (INA § 244(b)(1)(B))

Because the Centers for Disease Control has labeled the Ebola outbreak in West Africa an epidemic, one would expect that the Obama Administration would meet these requirements. (See CDC Introduction to Epidemiology (stating that "outbreak" and "epidemic" have the same meaning; CDC Questions and Answers on Ebola (referring to Ebola as both an epidemic and outbreak)) Instead, DHS designated Guinea, Liberia, and Sierra Leone as TPS countries under paragraph (C), describing the conditions in that country as "extraordinary" and prevent aliens who are nationals of those countries from returning to the state in safety. (Liberia TPS Notice at 69503; Sierra Leone TPS Notice at 69508; Guinea TPS Notice at 69512)

This TPS designation became effective on Friday, November 21, 2014 and applies to nationals of Guinea, Liberia, and Sierra Leone who have continuously resided in the U.S. since November 20th and have been continuously present in the U.S. since November 21st. (Id.) The TPS designation will remain in effect through May 21, 2016. USCIS has started accepting applications immediately and registrations will continue until May 20, 2015. (Id.)

DHS estimates that 4,000 Liberians, 2,000 Guineans and 2,000 Sierra Leones will be eligible for temporary protected status. (Liberia TPS Notice at 69504; Guinea TPS Notice at 69513; Sierra Leone TPS Notice at 69508) As of 2012, the Census Bureau estimates that foreign born population from these countries in the United States (legal and illegal) is: Liberia, 71,000; Guinea, 11,000; Sierra Leone, 35,000. (Census Bureau, The Foreign Born Population from Africa, 2008-2012 (2014))

House Hearing Presses Obama Administration on Immigration Strategy

Last Tuesday, the House Foreign Affairs Subcommittee on the Western Hemisphere held a hearing entitled, "Unaccompanied Alien Children: Pressing the Administration for a Strategy." While the hearing was supposed to focus on the administration's response to the surge of unaccompanied alien minors from Central America who surged over the border this summer, lawmakers used the opportunity to press administration officials generally on immigration. Testifying at the hearing were representatives from the State Department, USAID, and the Inter-American Foundation. Notably, representatives from the Department of Homeland Security refused to appear at the hearing.

While the hearing was sparsely attended by subcommittee members, there were several notable points. First, subcommittee members raised the issue of President Obama's new program to grant refugee status to Hondurans, Guatemalans, and Salvadorans. In particular, Subcommittee Chairman Matt Salmon (R-AZ) and Rep. Jeff Duncan (R-SC) repeatedly asked the officials to cite the authority they have for dramatically changing the refugee program to allow people from Honduras, Guatemala, and El Salvador to apply for refugee status from their home countries. (See FAIR Legislative Update, Oct. 7, 2014) While none of the witnesses directly answered the question, Secretary Jacobson revealed that the program is expected to cost $5 billion over 5 years to fully implement.

Subcommittee members also discussed the inability to remove certain illegal aliens because their home countries won't accept them. Referencing the criminal aliens DHS released earlier this year on the claim that they could not detain them longer, Rep. Ron DesSantis (R-FL) asked if the State Department has stopped issuing visas to countries that refuse to repatriate their nationals as required by the Immigration and Nationality Act. (See INA 243(d); 8 USC 1253(d)) Despite the statutory requirement, Secretary Jacobson said the State Department has not suspended visas, calling it "an extreme step."

Finally, subcommittee members raised the issue of parole, through which the U.S. permits aliens to enter the U.S. without giving them any legal status, such as a temporary visa or green card. Representative Sean Duffy (R-WI) asked if parole could be granted to someone already in the United States. The practice of granting parole to aliens illegally in the U.S. — called parole in place — has grown since a legal memorandum produced by the Clinton Administration determined it was lawful. Yet there is no statutory basis for it. (See FAIR Legislative Update, Nov. 20, 2013) This has continued with the Obama Administration (Id.) Remarkably, Secretary Wiesner responded "no" to Rep. Duffy's question, suggesting that the administration's practice of "parole in place" does violate the statute. 

Executive Amnesty Poised to Give Millions of Illegal Aliens Driver's Licenses

In addition to shielding illegal aliens from deportation and rewarding them with work authorization, President Obama's executive amnesty will make illegal aliens eligible for driver's licenses in up to 48 states. Specifically, by ordering the Department of Homeland Security ("DHS") to expand the Deferred Action for Childhood Arrivals ("DACA") Program, create a new deferred action program for illegal alien parents of citizens and green card holders, and expand parole-in-place illegal aliens in the United States, approximately 5 million illegal aliens will gain access to government-issued driver's licenses and identification cards, as well as receive taxpayer funded benefits, despite federal statutes that require the government to deport them.

Illegal aliens covered by the President's executive amnesty will able to get driver's licenses because most of them will receive deferred action and virtually all will receive work authorization. Currently, 45 states and the District of Columbia accept employment authorization documents to meet states' proof of lawful presence requirements. In addition, all states except two, Nebraska and Arizona, grant driver's licenses to DACA recipients.

Thus, through the President's executive amnesty, illegal aliens will even be able to receive regular driver's licenses, even in states that grant "lower tier" driving cards to illegal aliens. Most states that grant driving privileges to illegal aliens grant "lower tier" driving cards that may not be used for federal identification purposes, such as to board a plane or enter a federal government building, in order to comply with the REAL ID Act. The President's executive amnesty will allow illegal aliens to circumvent the REAL ID Act and receive regular driver's licenses to use as valid identification.

Already, some legislators are seeking to remedy state law in order to prevent illegal aliens covered by the President's executive amnesty from receiving driver's licenses in their state. In anticipation of the President's announcement last week, Georgia Sen. Joshua McKoon introduced Senate Bill ("S.B.") 6 last week to restrict driver's licenses from deferred action recipients, including DACA recipients. Currently, Georgia law allows driver's license applicants to present documents showing a grant of deferred action to meet its lawful presence requirement. (O.C.G.A. 40-5-21.1) Sen. McKoon described S.B. 6 as a preemptive strike against the expansion of deferred action. (Atlantic Journal-Constitution, Nov. 17, 2014) "Previously, Georgia law restricted illegal aliens from getting a driver's license," said Sen. McKoon. (Senate Press, Nov. 17, 2014) "When the President created the ‘deferred action status' class, he deliberately created a loophole to make millions of illegal aliens eligible for Georgia driver's licenses and other public benefits. Senate Bill 6 will eliminate that loophole in Georgia." (Id.)