Legislative Update: 12/06/2016 
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Legislative Update: 12/06/2016

Senators Already Plotting New DREAMer Amnesty Bill

Several Gang of Eight senators are already plotting legislation for the new Congress to grant amnesty to so-called DREAMers—illegal aliens who claim to have been brought to the country unlawfully as minors. Pro-amnesty Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) are working on a bill that would grant legal status to Deferred Action for Childhood Arrivals (DACA), President Obama’s unconstitutional executive amnesty program. “You can’t blame these kids for coming here, you can’t blame these kids for coming out of the shadows,” Graham insisted. (The Hill, Dec. 1, 2016) Durbin added, “Sen. Graham and I discussed it again this morning and we hope to even have this bill ready before we leave next week, a bipartisan effort to say to the new president, ‘give these young people a fighting chance.’” (Id.) Graham laid out broad framework to reporters, “It’s going to be basically, if you have legal status [sic], you’ll continue legal status.” (Politico, Nov. 30, 2016) “I think it would pass overwhelmingly,” Graham claimed. (Id.) Approximately 740,000 illegal aliens have received DACA since President Obama unilaterally implemented it in 2012. Pro-amnesty Sens. Jeff Flake (R-AZ)—who was part of the Gang of Eight—and Susan Collins (R-ME) have already expressed support for legalizing DACA recipients. (The Hill, Dec. 1, 2016)

Separately, Gang of Eight leader (and failed GOP presidential candidate) Marco Rubio (R-FL) is also supportive of a DACA amnesty. Rubio said he would not “retroactively remove” the temporary “legal” protections DACA recipients received from President Obama. (The Hill, Nov. 27, 2016) “It expires. And what I would say is, if you have it, you’ll have it for the remainder of that period of time, but you will not be able to renew it,” Rubio said. (Id.) “In the meantime, and it’s not a long period of time, but it does give us the time to do border security, modernization, and then move to something very reasonable for people like those who came here as children, or those who have been here for a long time who are not criminals to allow them to attain some legal status through a legal way, not an unconstitutional way, which is what DACA is.” (Id.)

The push for amnesty in the aftermath of the 2016 election shows how out of touch these senators are with the American people. Donald Trump made opposing illegal immigration a focal point of this platform throughout the campaign. This position clearly resonated with voters: a Pulse Opinion Research poll commissioned by the Center for Immigration Studies just ahead of the election found that voters overwhelmingly want our immigration laws enforced. (FAIR Legislative Update, Nov. 15, 2016) Specifically, the poll found that 56 percent of likely voters supported “causing illegal aliens to return to their home countries by penalizing employers, getting cooperation from local law enforcement, and denying welfare benefits” and 54 percent believed that there has been “too little effort placed on enforcing our immigration laws.” (Id.) A Zogby Analytics exit poll conducted on behalf of FAIR similarly found that American voters, including Hispanic Americans, want our immigration laws enforced. (FAIR Legislative Update, Nov. 22, 2016)

Lastly, Sen. Graham’s claim that a DACA amnesty would “pass overwhelming” is not supported by fact. Indeed, Congress has repeatedly considered and rejected the DREAM Act. The DREAM Act was included in the “comprehensive” immigration reform bills that Congress refused to pass in 2006, 2007, and 2013. As a standalone measure, the bill has been equally unsuccessful. 

Supreme Court Hears Arguments in Illegal Alien Detention Case

This week the Supreme Court heard oral arguments in Jennings v. Rodriguez, one of the most noteworthy cases that will be argued this term. The Obama administration urged the Court to reverse the 9th Circuit Court of Appeals’ determination that thousands of illegal aliens who have been held for deportation for longer than six months are entitled to hearings that could lead to their release on bond. (See FAIR Legislative Update, June 28, 2016)

Remarkably, given that illegal aliens have been exploiting this administration’s non-enforcement agenda for years, the Obama administration’s position on this case is a welcomed surprise. Acting Solicitor General Ian Gershengorn took a hardline stance, telling the justices that the 9th Circuit’s decision to grant bond hearings distorted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which provides for expedited removal proceedings for inadmissible aliens. (8 U.S.C. 1225(b)(1)(B)(iii)(IV)) He argued the 9th Circuit Court of Appeals was “fundamentally wrong” to invent “a one-size fits all policy guaranteeing bail hearings that lawmakers never authorized.” (Politico, Nov. 30, 2016)

Liberal Justices Elena Kagan and Sonia Sotomayor appeared to embrace the 9th Circuit’s decision to create a six-month bright line for detention cases. “If these are people who have been here for decades…don’t you think due process would require some periodic review to ensure that these people are properly being held?” asked Justice Sotomayor. (Law360, Nov. 30, 2016) “Wouldn’t it be better to set some guideposts that everybody in the country would know to follow rather than having one suit pop up here and another in another place and everybody would be treated differently?” said Elena Kagan. (Id.)

Conservatives Justices pushed back against the 9th Circuit’s decision saying that the Court shouldn’t redraft laws. Chief Justice John Roberts said, “We can’t just write a different statute because we think it’s more administrable.”(Politico, Nov. 30, 2016) Justice Samuel Alito seemed to agree telling the ACLU attorney appearing on behalf of the immigrants “on the language of the statute, I think you have a pretty tough argument.”(Law360, Nov. 30, 2016)

According to FAIR’s legal arm, the Immigration Reform Law Institute, if the Supreme Court upheld the Ninth Circuit’s order, it would provide criminal aliens with incentives to delay adjudication of their removal cases. (See National Review, Dec. 2, 2016) Gershengorn argued that many if not most prolonged delays were due to aliens’ exercising all of their generous appeal opportunities. (Id.)

With only eight Supreme Court Justices, the case appears to be headed for a 4-4 split along ideological lines. If the court is deadlocked, the ruling by the 9th Circuit remains but it would only impact the states within that Circuit. However, the Court could hold a decision until they get a ninth justice. 

Stay tuned to FAIR and IRLI for further updates.

Three Contenders Emerge for DHS Secretary

The next Department of Homeland Security (DHS) Secretary will be faced with the enormous challenge of undoing the Obama administration's eight-year effort to dismantle U.S. immigration enforcement capabilities, all while the nation faces a resurgence in illegal immigration and growing security threats from international terrorist organizations. The leading contenders for the crucial position that oversees U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are Kansas Secretary of State Kris Kobach, retired Marine Gen. John Kelly, and Rep. Mike McCaul (R-TX). (Wall Street Journal, Nov. 30, 2016)

Kobach, who is also of counsel with FAIR’s legal arm, the Immigration Law Reform Institute (IRLI), was an early endorser of President-elect Trump during the primaries, saying the “most important issue in the Republican presidential contest is immigration and its effect on our national security.” (Politico, Feb. 29, 2016) In the Bush administration, Kobach worked in the office of United States Attorney General John Ashcroft, serving as his chief advisor on immigration law and border security. After the 9/11 attacks, Kobach was put in charge of Department of Justice efforts to prevent terrorists from exploiting gaps in U.S. immigration controls. Outside of public service, Kobach is nationally-recognized as an author of legislation to stop illegal immigration, and known as a litigator who represents U.S. citizens, cities, and states in cases involving illegal immigration across the country. (See IRLI's Staff Bios)

President-elect Trump’s consideration of Kelly for the Cabinet post is likely not for his distinguished war record, but mainly for his knowledge of border issues and Southern Hemisphere governments. (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 counter-narcotics trafficking and counterinsurgency. (Id.) This portfolio allowed him regular meetings with Central and South American leaders, relationships that could help address root causes of illegal migration from the region. (Id.)

McCaul, who currently chairs the House Homeland Security Committee, is the most controversial among those being considered by President-elect Trump. In 2013, FAIR strongly opposed McCaul's Border Security Results Act, H.R. 1417, for taking a cosmetic approach to the problem of border security. (See FAIR Summary of H.R. 1417) The bill would have merely required DHS to come up with plans to secure the border and included vague language about the need for “situational awareness” along the border without requiring actual results in stemming the flow of people entering the country illegally. McCaul's version of the bill for the current Congress, the Secure Our Borders First Act, H.R. 399, is similarly flawed in its inability to meaningfully secure the border. (FAIR Press Release, Jan. 20, 2015)

In a press release reacting to McCaul as a potential DHS nominee, FAIR President Dan Stein noted that if chosen to head the agency, he will need to take a much more expansive view of border and immigration enforcement than he has in the past. (FAIR Press Release, Dec. 2, 2016) "Given the centrality of immigration to President-elect Trump's successful campaign, he and his DHS nominee will need to assure the American public that they understand the full scope of the threats posed by mass illegal immigration and unsecured borders,” Stein said. (Id.) “That means a plan of action to secure the border with fencing, technology and manpower, coupled with strong deterrence, that is ready to be implemented as soon as the new administration takes office.” (Id.) 

Former DHS Secretary Napolitano Vows to Shield Illegal Alien Students

University of California (UC) President Janet Napolitano, Obama’s first-term Department of Homeland Security Secretary, recently announced that she will shield illegal aliens within the 10 universities that comprise the UC system from federal immigration laws. (Fox News, Dec. 1, 2016) “While we still do not know what policies and practices the incoming federal administration may adopt, given the many public pronouncements made during the presidential campaign and its aftermath, we felt it necessary to reaffirm that [University of California] will act upon its deeply held conviction that all members of our community have the right to work, study, and live safely and without fear at all UC locations,” Napolitano said. (Id.) 

Napolitano’s policy for the UC system directly violates federal immigration law. Specifically, 8 U.S.C. § 1373 prohibits policies that impede cooperation between federal, state, and local officials when it comes to the sending, requesting, maintaining, or exchanging of information regarding immigration status. (8 U.S.C. § 1373) Under that provision, any federal, state, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from the federal government, information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (Id.) Outrageously, Napolitano insists the enforcement of federal laws rests with federal enforcement agents and not with the UC police department (UCPD). (See Napolitano Statement, Nov. 30, 2016) She said not only will UCPD will not investigate, detain or arrest individuals for violation of federal immigration law it will not cooperate to detain illegal aliens even when requested by Immigration and Customs Enforcement (ICE). (Id.)

Napolitano’s policy directives as UC President undermining federal immigration law are unsurprising. As DHS Secretary, Napolitano refused to develop an official metric for measuring border security, clearly prioritizing efforts to put amnesty before the safety and security of the American people.  (See FAIR Press Release) After the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) policy, Napolitano testified before Congress that her department began to execute the policy even before they developed the processes needed to implement it. (See FAIR Legislative Update, July 23, 2012)

Border Patrol Chief: Agents are Functioning as Childcare Providers

Last week, the Senate Homeland Security and Governmental Affairs Committee held a hearing entitled “Initial Observations of the New Leadership at the U.S. Border Patrol.” (See Homeland Security Committee Notice, Nov. 30, 2016) Mark Morgan, Chief, and Carla Provost, Deputy Chief, of the U.S. Border Patrol were the only witnesses to testify. (Id.)

Despite repeated claims by the Obama administration that the U.S.-Mexico border is secure, Morgan’s opening statement belied those assertions. Border patrol agents are “the most assaulted federal law enforcement in the United States. More than 7,400 Border Patrol agents have been assaulted since 2006. That rose in fiscal year 2016 by 20 percent, and year to date we’re seeing an increase in assaults by 200 percent over the previous year to date. It’s a dangerous job,” he stated. (See Homeland Security Committee Hearing Video, Nov. 30, 2016)

Furthermore, he acknowledged that the continued surge of unaccompanied alien minors (UAMs) means it is likely to get even more dangerous. In Fiscal Year 2016, the Border Patrol apprehended 59,692 UAMs, a 49 percent increase over the previous year. (See Mark Morgan Testimony, Nov. 30, 2016) Only 1 1/2 months into Fiscal Year 2017, 10,549 UAMs have been apprehended compared to 7,653 the previous year, a 38 percent increase. Clearly illegal aliens are seeking to take advantage of the Obama administration’s lax enforcement priorities before President-elect Trump takes office in January.

Instead of focusing manpower on securing the border, Morgan testified that agents are now in roles of “professional childcare providers.” (See Homeland Security Committee Hearing Video, Nov. 30, 2016) He relayed a story from one agent who said, “Chief, we’re going to do whatever this country asks us to do, but I never thought in my 20 years that I would be, as part of procurement, ordering baby powder and baby wipes.” (Id.)  In another border sector, as part of their job, agents “make sure the food, the burritos we’re providing are being warmed properly.” (Id.) “Basically 100 percent of those family units and UAMs are released into the U.S.” Morgan said. (Id.)

The influx of UAMs and family units is unsurprising given the Obama administration’s special treatment of Central Americans. While fear of generalized violence has never been sufficient for granting asylum, many illegal aliens realized that if they uttered the phrase that they had “credible fear” of persecution (the initial threshold for an asylum claim) they would be released after posting a bond. (See FAIR Legislative Update, June 14, 2016) Morgan even agreed that “credible fear” was a pull factor and that as a policy it should be revisited. (See Homeland Security Committee Hearing Video, Nov. 30, 2016) He acknowledged Chairman Ron Johnson’s (R-WI) assertion that smugglers are coaching illegal aliens to use “magic words like credible fear” to be able to stay in the country and the policy has gone beyond its original intent.” (Id.)

Morgan also testified that another “pull factor” was the “notice to appear” (NTA) which was caused by a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 that prevents UAMs from Central America from being promptly returned to their home countries. (Id.) NTA’s set a court date in the future for the UAM to appear before an immigration judge but the National Border Patrol Council estimates that 80-90 percent of UAMs fail to show up for their hearing. (See FAIR Legislative Update, Feb. 16, 2016) Morgan said, “They know that if they make it to the border they will be released into the interior of the United States. It sends a strong message to those folks in the country that if you get to the United States border, we’re gonna let you in. It’s a huge pull factor.” (See Homeland Security Committee Hearing Video, Nov. 30, 2016)

Despite recognizing that instituting a “system of consequences” reduces the “pull factor,” Morgan agreed with Senator Tom Carper (DE) that the fix for border security is the implementation of “comprehensive immigration reform.”