Legislative Update: 12/11/2013
- White House Reverses Course; Confirms President Lived with Illegal Alien Uncle
- Judge Grants Green Card to President's Illegal Alien Uncle
- Obama's Unilateral Immigration Actions Violate Constitution
- Boehner Hires Veteran Amnesty Advocate to Direct Immigration Policy
- Boehner Plotting Amnesty Vote?
- Senate Closes in on Vote for Next DHS Secretary
- King County, Washington to Ignore ICE Detainers
Last week, the White House confirmed that President Obama did in fact live with his uncle in Massachusetts for several weeks while attending Harvard Law School. (The Washington Post, Dec. 3, 2013) The confirmation by the White House constitutes a complete about face from White House's earlier claims that the President and his uncle, Onyango "Omar" Obama, had never met. However, when Uncle Obama testified about the relationship during his immigration hearing last week, the White House was finally forced to come clean. (See Boston Globe, Jan. 7, 2012; see also Breitbart News and Daily Caller)
Whether the White House knew it had lied about the President's relationship with his uncle is unclear. However, it seems the White House had every interest in distancing the President from his illegal alien uncle. Uncle Omar had entered the United States on a student visa in 1963 and remained in the U.S. illegally after his visa expired. He was denied an extension of that visa when he falsely claimed he was employed, and was subsequently ordered to leave the U.S. three times: in 1986, 1989, and 1992. (The Daily Caller, Dec. 3, 2013) Finally, when he was arrested for drunk driving in 2011, authorities discovered he was an illegal alien and the media identified him as President Barack Obama's uncle. (Fox News, Aug. 29, 2011) After his arrest, he allegedly said, "I think I will call the White House." (Reuters, Dec. 3, 2013)
But less than 48 hours after Uncle Omar testified at his deportation hearing (in which the judge granted him a green card) a White House spokesman admitted that not only had the two met, they lived together and kept in contact for some time. "The president first met Omar Obama when he moved to Cambridge for law school," said spokesman Eric Schultz. (The Boston Globe, Dec. 5, 2013) "The president did stay with him for a brief period of time until his apartment was ready. After that, they saw each other once every few months, but after law school they fell out of touch. The president has not seen him in 20 years, has not spoken with him in 10." (Id.)
Reiterating these talking points, at a White House press conference Press Secretary Jay Carney clarified that the reason for the gaffe was that no one had actually asked the President himself whether the two had met. Carney told reporters that when asked about the uncle's drunk driving offense, White House officials had relied upon the president's own books and the public record to determine that they had never met. "Back when this arose, folks looked at the record, including the president's book, and there was no evidence that they had met," Carney said. "That was what was conveyed. Nobody spoke to the president." However, he then told reporters that in light of Uncle Omar's statement, he "thought it was the right thing to do" to ask President Obama personally about his relationship with Uncle Omar, at which point the truth came out. (See White House Press Briefing Transcript, Dec. 5, 2013)
Though the White House denied any interference in his case, at his deportation hearing, an immigration judge granted the President's uncle, Onyango "Omar" Obama, status as a legal permanent resident in the United States. (The Boston Globe, Dec. 3, 2013)
Uncle Omar had entered the United States on a student visa in 1963 and remained in the U.S. illegally after his visa expired. He was denied an extension of that visa when he falsely claimed he was employed, and was subsequently ordered to leave the U.S. three times: in 1986, 1989, and 1992. (The Daily Caller, Dec. 3, 2013) Finally, when he was arrested for drunk driving in 2011, authorities discovered he was an illegal alien and the media identified him as President Barack Obama's uncle.
To permit Uncle Omar to stay in the United States, the judge applied Section 249 of the Immigration and Nationality Act, which allows the Department of Homeland Security to adjust the status of certain aliens who entered the U.S. before 1972. To qualify for legal status under Section 249, an alien must demonstrate that he:
- Is not inadmissible based on criminal acts;
- Entered the U.S. before January 1, 1972;
- Has continuously resided in the U.S. since entry;
- Is a person of good moral character;
- Is not ineligible for citizenship; and
- Is not deportable based on national security grounds.
Interestingly, in spite of lying about his employment, defying multiple deportation orders, and being arrested for drunk driving, the judge ruled that Uncle Omar had the requisite "good moral character" because he served out his probation with any further arrests. The judge also ruled that because Omar entered what's referred to as an admission of sufficient facts rather than a formal guilty plea, his drunk driving did not constitute a criminal act that would disqualify him from obtaining a green card under Section 249. (See NY Daily News, Dec. 3, 2013)
Omar is not the only member of President Obama's family who was an illegal alien that courts permitted to remain in the United States. The same immigration judge, Leonard Shapiro, granted President Barack Obama's Aunt Zeituni Onyango asylum in 2010. (See FAIR's Legislative Update, Sept. 27, 2010) Onyango had lived in public housing in Boston and ignored a 2004 deportation order. (Id.)
Uncle Omar is now allowed to get a green card and apply to become a U.S. citizen in five years, unless the Department of Homeland Security appeals the case within 30 days.
At a House Judiciary Committee hearing examining the president's duty to faithfully execute the laws last week, Members of Congress and legal experts asserted that President Obama has violated the Constitution by taking several unilateral actions on immigration.
In his opening remarks, Committee Chairman Bob Goodlatte (R-VA) criticized President Obama for circumventing Congress to accomplish his own policy agenda. The Obama Administration is "routinely making end runs around Congress through broad claims of prosecutorial discretion and regulatory actions that push executive power beyond all limits," Goodlatte said. (See Goodlatte opening statement, Dec. 3, 2013)
In particular, Rep. Goodlatte said that the President's Deferred Action for Childhood Arrivals (DACA) initiative was unconstitutional, and rebuked him for "effectively enact[ing] the DREAM Act himself, by ordering immigration officials to stop enforcing immigration laws against certain unlawful immigrants." Under DACA, the Department of Homeland Security stopped deporting illegal aliens who allegedly came to the U.S. before the age of 16 and meet other criteria under the failed DREAM Act, which Congress rejected as recently as 2010. (See FAIR Legislative Update, June 19, 2012). (Bloomberg Government Transcript, Dec. 3, 2013) Goodlatte, a former immigration attorney, further explained that DACA went beyond prosecutorial discretion to "actually enable [illegal aliens'] violation of the law by giving them documents to help them evade the problems that ensue from living in a country that they're not lawfully present." (Id.)
Several witnesses testifying before the Judiciary Committee agreed with Chairman Goodlatte's assessment regarding DACA. In particular, Georgetown University Law Professor Nicholas Quinn Rosenkranz testified that although the Obama Administration claims DACA is a proper exercise of prosecutorial discretion, Obama's implementation of the program is completely outside of the Administration's authority. He said that "it is a scale of decision-making that is not within the traditional conception of prosecutorial discretion." (Bloomberg Government Transcript, Dec. 3, 2013) Rosenkranz explained that, "case-by-case prosecutorial discretion is one thing, but a blanket policy that the immigration act will not apply to 1.8 million people [is] quite something different." (Id.)
Congress had considered the DREAM Act various times over the ten years preceding the Administration's implementation of DACA but had not passed the bill into law. Professor Rosenkranz noted that the Constitution requires the president to faithfully execute the law, "not those bills that fail to become law, like the DREAM Act." (Id.)
Similarly, George Washington University Law Professor Jonathan Turley identified numerous ways that the Obama Administration had acted unconstitutionally. Specifically referring to DACA, Turley declared, "it's not prosecutorial discretion to go into a law and say an entire category of people will no longer be subject to the law. That's a legislative decision. Prosecutorial discretion is a case-by-case decision that is made by the Department of Justice. When the Department of Justice starts to say, we're going to extend that to whole sections of laws, then they are engaging in a legislative act, not an act of prosecutorial discretion." (Id.)
Professor Turley also criticized the Obama Administration's decision earlier this year to refuse to deport illegal aliens who serve as any primary care providers, including parents or guardians, for minors who are citizens or legal permanent residents. (See FAIR Legislative Update, August 28, 2013). Turley concluded that through that action, Obama ignored the Immigration and Nationality Act, which the Constitution requires the President to faithfully execute. (Bloomberg Government Transcript, Dec. 3, 2013) Since taking office, the Obama Administration has eroded the enforcement of U.S. immigration law through a series of prosecutorial discretion and backdoor amnesties. For more information, read FAIR's timeline of President Obama's Record of Dismantling Immigration Enforcement.
On Wednesday, December 4, Rebecca Tallent joined Speaker John Boehner's staff as his immigration policy director. Tallent brings with her a long history at the frontlines of the on-going push for massive increases in immigration and amnesty, helping Senator John McCain draft immigration bills during his amnesty push in the 2000's with the late Senator Kennedy. (Roll Call, Dec. 3, 2013). She also served as McCain's policy advisor on his presidential campaign in 2008, and then as his legislative director and Chief of Staff in his Senate office. She left McCain in 2013 to join the Bipartisan Policy Center (BPC), a pro-amnesty think tank that recently formed an "Immigration Task Force" dedicated to "building bipartisan support for reform." (BPC, "About the Task Force")
Tallent was deeply involved with the last failed amnesty push that ended in 2007, and her experience with Gang of Eight style immigration bills goes back even further. According to the previous BPC staff directory, though she started her career on Capitol Hill with John McCain in 2001 after graduating college, she first worked on immigration when she joined former Republican Rep. Jim Kolbe's (R-AZ) staff in 2003. The first immigration bill she helped draft was the "Border Security and Immigration Improvement Act" of 2003. That bill, which Kolbe sponsored with John McCain and Jeff Flake, would have created a new guest worker program allowing employers to hire unlimited numbers of foreign workers and would also have allowed illegal aliens a path to amnesty through the program. (See Floor Statement of John McCain, Jul 25, 2003)
After that proposal failed to gain traction, she rejoined Sen. McCain's staff in 2005, where she helped to craft immigration bills throughout the sustained amnesty push during President George W. Bush's second term. Each bill she worked on was based on the same principles of the current Senate bill, that is, amnesty for illegal aliens coupled with increased foreign workers. They included the "Secure America and Orderly Immigration Act" (S. 1033) of 2005, also known as the McCain-Kennedy bill, (see Washington Times, May 12, 2005), and then, finally, the amnesty bills of 2007, the "Security Through Regularized Immigration and a Vibrant Economy Act" (H.R. 1645) and the "Comprehensive Immigration Reform Act" (S. 1348) of 2007.
Boehner's move has been widely interpreted as a strong signal that he is committed to pushing mass amnesty and guest worker legislation through the House. Representative Mario Diaz-Balart, a vocal Republican supporter of S. 744, said: "It's a huge, huge get for Speaker Boehner. She's not going to be doing this if it's going to be a waste of her time." (The Hill, Dec. 3, 2013) Haley Barbour, former governor of Mississippi and leader of the BPC Immigration Task Force, suggested the hire is an affirmation of BPC's support for amnesty. He said, "Our work at the Bipartisan Policy Center demonstrates that it's possible to develop immigration policy that addresses the interests of conservative Republicans, reform advocates and everyone in between. Speaker Boehner's choice to hire Becky is affirmation of his strong desire to move legislation in 2014." (BPC Press Release, Dec. 3, 2013)
Boehner's office has thus far made no attempt to dismiss claims that his move is aimed at improving his ability to push amnesty legislation. Boehner's spokesman, Michael Steel, stated: "The Speaker remains hopeful that we can enact step-by-step, common-sense immigration reforms — the kind of reforms the American people understand and support. Becky Tallent, a well-known expert in this field of public policy, is a great addition to our team and that effort." (Roll Call, Dec. 3, 2013)
Democratic leaders are also sounding optimistic that Boehner will force through an amnesty over the objections of his caucus. On December 3, Majority Leader Harry Reid proclaimed that though the Senate immigration bill is currently stalled, "there's going to be so much pressure on the House that they will have to pass it, and that Boehner "is going to cave in." (Las Vegas Sun, Dec. 4, 2013) Obama has also recently indicated that a step by step approach is acceptable as long as all the components of the Senate bill become law, stating: "If they want to chop that thing up into five pieces, as long as all five pieces get done, I don't care what it looks like." (Business Insider, Dec. 3, 2013)
Last week, the Texas-based Quorum Report reported that Speaker John Boehner (R-OH) is devising a plan to pass amnesty through the House of Representatives before the 2014 elections. (Quorum Report, Dec. 3, 2013) According to Breitbart News, the article claims that "various Texas business interests have told Quorum Report that Boehner has been telling them that he will start holding immigration votes not long after the [GOP primary] filing deadlines has passed." (Breitbart.com, Dec. 4, 2013)
According to the sources, the reason Boehner intends to delay immigration votes until after the primary filing deadline is to protect vulnerable pro-amnesty Republicans. "Boehner felt the need to protect House Republican incumbents who are otherwise seen as conservative but have expressed an openness to immigration reform that includes a robust guest worker program." (Id.) The article specifically cited Rep. Ted Poe (R-TX) and former members of the House bipartisan immigration "gang" Reps. John Carter (R-TX) and Sam Johnson (R-TX), all of whom are closely connected to the pro-amnesty Texas business community. (Id.)
However, Boehner allies dismissed the claim that Boehner is purposefully delaying immigration votes in order to pass an amnesty bill. "I don't think it is true. I don't think the speaker would do that," insisted Rep. Tom Cole (R-OK), the GOP deputy majority whip. (Newsmax, Dec. 4, 2013) "What [the] speaker has suggested is that he wants a step-by-step, piecemeal approach — border security, no amnesty... Those are the kind of things that Boehner envisions, and it's something that's dramatically different than what was passed in the Senate," Cole said. (Id.) "I don't think there's ever any entertainment of amnesty," Cole declared. (Id.) The chairman of the National Republican Congressional Committee, Greg Walden (R-OR) echoed Rep. Cole's amnesty denials. "We are looking at real reform that is done a piece at a time, step by step... My guess is it comes later next year." (Christian Science Monitor, Dec. 2, 2013)
Stay tuned to FAIR as details emerge...
Monday evening, Senate Majority Leader Harry Reid (D-NV) filed "cloture" on the nomination of Jeh Johnson to become the next Secretary of the Department of Homeland Security (DHS). (See Senate Democrat Executive Calendar, item #10) Filing cloture means that Sen. Reid is cutting off debate on the nominee within 30 hours of filing, therefore setting up a potential vote on Johnson as soon as today. (Id.)
While Johnson's biography suggests he has some national security experience, unfortunately he appears to lack any experience on immigration — President Obama's second-term priority. (See news reports by ABC, the Washington Post, and Christian Science Monitor) As the Pentagon's chief lawyer under Obama, Johnson oversaw programs related to legality of U.S. drone strikes, the closing of Guantanamo Bay Prison, and the repeal of the military's "Don't Ask, Don't Tell" policy. (Christian Science Monitor, Oct. 18, 2013) Yet, if confirmed by the Senate, Johnson would be responsible for ensuring the border is secure, enforcing immigration laws within the U.S., and managing a massive system that issues documents and immigration benefits to millions of foreign nationals entering the U.S. each year.
Only a simple majority vote of the Senate is required to approve Johnson's nomination. Before the Thanksgiving holiday, the Senate voted 52 to 48 to change decades-old procedure granting the minority party the ability to block presidential appointments though the use of a filibuster (unlimited debate). (Los Angeles Times, Nov. 21, 2013) Majority Leader Harry Reid (D-NV) used an unprecedented procedural move referred to as the "nuclear option" to hold the vote, making it so that now only a simple majority — rather than the previous 60 vote threshold — is required to approve all executive branch and lower court nominees. (Id.; see also Washington Post, Nov. 21, 2013)
In addition to the pending vote on Johnson's nomination, the Senate Homeland Security and Governmental Affairs Committee approved current U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to be the Deputy DHS Secretary under Johnson. The Inspector General is currently investigating Mayorkas for potential impropriety relating to the EB-5 investor green card program. (See FAIR Legislative Update, July 30, 2013)
Last Monday, the Metropolitan King County Council passed Ordinance 2013-0285 by a vote of 5 to 4, prohibiting county law enforcement from honoring federal Immigration and Customs Enforcement (ICE) detainers for aliens except in a very limited number of circumstances. Previously, King County, which encompasses Seattle, has honored all requests by federal authorities to hold aliens for no more than an additional 48 hours to allow ICE agents time to make arrangements for the transfer of the detainee into federal custody for the purpose of removing the alien. Between 2009 and 2012, ICE issued 4,305 detainers in King County. (The Associated Press, Dec. 2, 2013)
King County's new ordinance mandates that county prisons and jails may hold aliens for an additional forty-eight hours after they are eligible for release only if:
- ICE agents provide written documentation, including case identifying information, that demonstrates the alien:
- has been previously convicted of a homicide at any time in the past; or
- has been convicted of a violent, serious, sex, or serious traffic offense within the past ten years; or
- within the past ten years has been released from prison after serving a sentence for a violent, serious, sex, or serious traffic offense conviction; or
- ICE agents provide written documentation, including case identifying information, that demonstrates the alien has been convicted in any jurisdiction of an offense that, if committed in the state of Washington would meet the criteria outlined in 1.
Importantly, neither of these exceptions applies to minors as it prohibits the county from honoring detainers issued for an alien younger than eighteen years old.
The King County ordinance requires two different reports. First, it requires the department of adult and juvenile detention to compile quarterly reports beginning May 1, 2014 listing all immigration detainers received and descriptive data that includes the types of offenses committed by the alien, the reason for release from county custody, the length of stay before the detainer was executed, and the number of aliens transferred to the state department of corrections' custody for which a detainer was issued. Additionally, the new policy requires King County to establish an oversight group to review the implementation of the county's limitations on ICE detainer requests and consider whether to eliminate compliance with detainers altogether. That report is due in January 2015.
King County passed the ordinance over the objections of federal prosecutors. Before passage of the ordinance, the U.S. Attorney's Office in Seattle, Washington sent a letter to the King County Council providing data that demonstrated that ignoring federal immigration detainers for even minor crimes makes communities less safe. The data revealed that all of the criminal aliens with significant criminal and deportation histories detained and prosecuted by the U.S. Attorney's Office in an 18 month period would have been released back onto the streets because their charge did not qualify as a serious offense under King County's proposed sanctuary ordinance.
Unfortunately, this anti-detainer ordinance is not the first sanctuary ordinance passed in King County. In 2009 the county passed Ordinance 2009-0393 to restrict local law enforcement from inquiring into immigration status of any person they encounter in the performance of their duties and prohibit the Seattle-King County department of public health from conditioning the provision of health benefits, opportunities or services on matters related to citizenship or immigration status.
Some speculate that state legislators may use the new King County ordinance as a template for legislation requiring law enforcement agencies statewide to ignore ICE detainers. Such legislation may be introduced in the upcoming legislative session. (The Associated Press, Dec. 2, 2013)