Legislative Update: 12/15/2015 
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Legislative Update: 12/15/2015


Obama Administration Cobbles Together Plan as UACs Continue Surging Across the Border

Unaccompanied alien minors (UACs) and family units continue to surge across the border illegally at rates similar to summer 2014 record levels. In October — which marked the beginning of the new fiscal year for the government — the Border Patrol apprehended 5,000 UACs (double the number from October 2014) and 6,000 family units (triple the number from October 2014). (See FAIR Legislative Update, Dec. 1, 2015) The situation was even worse last month, with 10,588 UACs apprehended through November 2015 (more than double from this point last year) and 12,505 family units apprehended (a 173 percent increase compared to last year). (CBP.gov) The flow is almost exclusively from Central America as only 1,965 UACs and 538 family units apprehended this fiscal year are from Mexico. (Id.)

Evidence continues to mount that the Central American UACs and family units are surging across the border at record numbers because they know they will get to stay in the U.S. once they get here. Because of a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, UACs from Central America cannot be promptly returned to their home countries. (P. Law 110-457) Instead, they receive a "notice to appear" which sets a court date in the future before an immigration judge but illegal aliens refer to these official documents as "permisos" or free passes. (See FAIR Legislative Update, Dec. 1, 2015) Unsurprisingly, the National Border Patrol Council estimates that 80-90 percent of UACs fail to show up for the hearing. (Id.) Similarly, a federal judge ruled this summer that the Obama administration's practice of detaining illegal alien minors, both UACs and those in family units, violates a 1997 Clinton administration class action settlement agreement. (See FAIR Legislative Update, Aug. 4, 2015) Accordingly, Judge Dolly Gee ordered that the minors — approximately 1,800 at the time — had to be released by October 23. (Id.)

While President Obama continues to blame Central American violence for the surge rather than his non-enforcement policies, his administration is scrambling to accommodate the UACs and family units that continue streaming across the border. Last week, officials announced they plan to open three new housing shelters — two in Texas and one in California — adding at least 1,400 beds. (See New York Times, Dec. 7, 2015) Separately, a recently obtained memo from Robert Salesses, Deputy Assistant Secretary of Defense, reveals that "DoD has received a formal request for assistance from the Department of Health and Human Services (HHS) to provide temporary housing support for [UACs]." (Memo to the Secretaries of the Military Departments Director, Joint Staff, Nov. 25, 2015) The memo goes on to solicit information about DoD facilities that are "able to accommodate at least 300 beds, and be available for at least 60 continuous days during calendar year 2016." (Id.)

Despite the Obama administration claiming it was caught off guard by this new surge, the memo seems to indicate that the President's team expected the UAC wave. Although not specified in the memo, the HHS formal request necessarily had to originate in early November or possibly late October. Importantly, the increase in unlawful border crossings in October and November bucks the historical trend of decreasing border crossings during the fall and winter months. Thus, the fact that the Obama administration was soliciting additional detention space for UACs before it even published the October numbers shows it has been aware of the surge for a while but failed to take immediate actions to stop the influx.

House Easily Passes Bill to Tighten Visa Waiver Program

Last Tuesday, the House easily passed a bipartisan bill that would tighten the visa waiver program (VWP) and bar those from Syria, Iraq, Iran, and the Sudan, or individuals who have been to those countries in the last five years, from traveling to the U.S. without a visa. (CNN, Dec. 8, 2015; Roll Call Vote #679) "This will help neutralize the threat from foreign terrorists entering our country," House Speaker Paul Ryan (R-WI) said before the bill's passage. (CNN, Dec. 8, 2015) While there is still disagreement on how to address security concerns regarding refugee resettlement, changes to the VWP enjoy broad bipartisan support. (Politico, Dec. 8, 2015) Minority Whip Steny Hoyer (D-MD) helped draft language in the bill and Democratic Caucus Chairman Xavier Becerra (D-CA) said that the measure "ensures security." (Id.)

The bill, sponsored by Rep. Candice Miller (R-MI), mandates greater sharing of intelligence information among the 38 approved countries that participate in the VWP. (CNN, Dec. 8, 2015) Currently, visitors from those countries are allowed to take advantage of reduced-screening process and visit the U.S. for 90 days without a visa. (Id.; see FAIR's Visa Waiver Program Issue Brief) The bill would authorize the Department of Homeland Security (DHS) to terminate any country's participation in the VWP if it does not adequately submit data, such as lost or stolen passport information. (CNN, Dec. 8, 2015) It also requires participating countries to issue their citizens fraud-resistant electronic passports if they wish to remain in the VWP. (Id.)

While the bill is a step in the right direction, it is an incomplete effort that sends the message that proper vetting will be done when it simply cannot be accomplished. It is unlikely that the U.S. or VWP countries can adequately track all travel by foreign nationals over the past five years. Additionally, it is naïve to operate under the assumption that terrorists are only being radicalized in places like Iraq and Syria, as evidenced by extremist recruiting occurring on the Internet. However, it is important to note that the bill does contain some helpful provisions such as electronic passports and biometrics.

The bill has not been scheduled for a vote in the Senate even though it has bipartisan support in the upper chamber. (Politico, Dec. 8, 2015) It is likely that the Senate version, sponsored by Sens. Dianne Feinstein (D-CA) and Jeff Flake (R-AZ), could be included in the government spending bill being negotiated by Congress. (Id.)

Thwarted by Non-Enforcement Agenda, DHS Morale Continues to Plummet

The Department of Homeland Security (DHS) continues to be ranked by its employees as the worst place to work in the federal government. According to the recently released "Best Places to Work in the Federal Government" rankings, DHS received an index score of 43.1 for 2015, the lowest of all 19 large government agencies. (Best Places to Work in the Federal Government, December 2015) By comparison, the next lowest agency — the Department of Veterans Affairs — received a score of 55.1 while NASA received the highest score at 76.1 (Id.) The nonprofit, nonpartisan Partnership for Public Service produced the rankings and the index score measures "employee satisfaction and commitment." (Id.) Similarly, the 2015 Federal Employee Viewpoint Survey, which was released in September, also ranked DHS last among federal agencies. (See ImmigrationReform.com, Sept. 30, 2015)

The new survey results also show that DHS morale continues to plummet each year during Obama's presidency. DHS, which also ranked last in 2014, saw its score drop 0.9 points from last year's 44.0 index score. (Id.) Tellingly, only four other agencies saw their score decline from 2014 to 2015, but three of those agencies still remain in the top five overall. (Id.) Indeed, after posting a score of 58.6 in 2010 — which would equate to only 14th place in the 2015 survey — the DHS score dropped to 56.6 in 2011; 52.9 in 2012; and 46.8 in 2013. (DHS Detailed Summary, December 2015)

The longstanding morale problem at DHS is unsurprising considering the department has primary jurisdiction over immigration — an area where the Obama administration has willfully disregarded the law. The 240,000 employee department includes Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). Indeed, there are five core missions at DHS with two of them being "secure and manage our borders" and "enforce and administer our immigration laws." (DHS Mission Statement) However, through President Obama's deferred action amnesty initiatives and memos gutting interior enforcement, the border is less secure and immigration agents can be fired for attempting to enforce federal immigration law. (See FAIR Legislative Update, Aug. 25, 2015; CNSNews.com, Apr. 14, 2015)

In a statement, DHS Secretary Jeh Johnson downplayed the low rating. "I'm disappointed. We know improving employee satisfaction takes time, and we will not give up. We have an aggressive plan to do this," Johnson said. (Johnson Press Release, Dec. 8, 2015) "Surveys such as these do have a self-fulfilling aspect to them," Johnson insisted. (Id.) "Continue to tell workers they are unhappy, and they believe you. This makes our efforts to turn employee satisfaction around more protracted and difficult." (Id.)

California Citizen Files Lawsuit Contesting San Francisco Sheriff's Sanctuary Policy

Last week, Cynthia Cerletti, a citizen taxpayer in California filed a lawsuit against San Francisco Sheriff Ross Mirkarimi, in his official capacity, for misusing taxpayer funds to illegally shield criminal aliens from United States Immigration and Customs Enforcement (ICE) by instituting a sanctuary policy to restrict San Francisco Sheriff's Department (SFSD) officers from communicating with the federal agency. (Complaint, Dec. 4, 2015)

Often, sanctuary policies, like Sheriff Mirkarimi's, are immune from judicial scrutiny because few individuals have standing to bring a case. To have standing, the potential plaintiff needs to show that they are personally injured by the laws or actions they are contesting and that the injury will continue unless a court grants the relief they are requesting. California courts, however, differ from many other state courts because California law allows for taxpayers to bring cases against state or local government officials if they believe there are unlawful expenditures of taxpayer funds and taxpayer financed resources, without an independent showing of personal harm.

In her complaint, Cerletti contends that Sheriff Mirkarimi's policy violates federal law because it prohibits all SFSD personnel from communicating any information regarding the citizenship or immigration status of any inmate with ICE. (Complaint, Dec. 4, 2015) Federal law, however, specifically prohibits state and local officials from limiting communication with ICE with regard to the sending or receiving of information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (8 U.S.C. §§ 1373 and 1644)

While Cerletti did not assert this claim in her complaint, federal law likely also preempts Sheriff Mirkarimi's sanctuary policy. The Supreme Court of the United States has repeatedly interpreted the Supremacy Clause of the United States Constitution, which establishes federal law as "the supreme law of the land," to invalidate any state or local immigration law, ordinance, or policy that stands as an obstacle to the accomplishment and execution of the "full purposes and objectives" of Congress in enacting federal immigration law. (Hines v. Davidowitz, 312 U. S. 52 (1941); De Canas v. Bica, 424 U.S. 351 (1976)) Because San Francisco's policy impedes communication between immigration officials and state and local officials — communication that Congress has already expressly said cannot be prohibited — it is possible a court could find Sheriff Mirkarimi's policy to be preempted.

Outrage against Sheriff Mirkarimi's sanctuary policy intensified in the months following the fatal shooting of 32 year-old Kate Steinle in San Francisco this summer by an illegal alien suspect. The suspect had been in custody of the San Francisco Sheriff's Department prior to the shooting, but was released when Sheriff Mirkarimi refused to cooperate with ICE and comply with a detainer request the federal government placed on the suspect. San Francisco Mayor Ed Lee sent a letter to Sheriff Mirkarimi, calling on him to rescind the policy. "I urge you to rescind this policy immediately, in the interest of public safety." (Breitbart, Jul. 17, 2015) Sheriff Mirkarimi refused to retract his policy, and his decision was supported by a resolution passed by the San Francisco Board of Supervisors in October. (FAIR Legislative Update, Oct. 27, 2015)

Cerletti's case is not the first case to be brought against Sheriff Mirkarimi's sanctuary policy. On July 13, 2015, the San Francisco Deputy Sheriff's Association, which represents 750 San Francisco Sheriff's Deputies, filed a complaint contesting the policy. (FAIR Legislative Update, July 28, 2015) The Association charges that the SFSD's refusal to cooperate with federal immigration authorities "recklessly compromises the safety" of the citizens, visitors, and law enforcement personnel of San Francisco. (Complaint, July 13, 2015) In addition, Kate Steinle's family filed a lawsuit this September against San Francisco Sheriff Ross Mirkarimi, ICE, and Bureau of Land Management, claiming that officials are partly responsible for Steinle's murder. (FAIR Legislative Update, Sept. 9, 2015) The Steinle family claims San Francisco Sheriff Mirkarimi acted negligently and violated federal laws requiring that local officials be able to openly communicate with ICE regarding the immigration status of an individual. (Id.)

Cerletti's complaint asks the court to declare that Sheriff Mirkarimi's sanctuary policy is illegal and in violation of federal law. (Complaint, Dec. 4, 2015) She also requests the court to order the SFSD from expending any additional taxpayer funds or taxpayer-financed resources to implement, enforce, maintain, defend, or otherwise carry out the provisions of Mirkarimi's sanctuary policy. (Id.) Cerletti is represented in this matter by attorneys at Judicial Watch. (Id.)