Legislative Update: 12/18/2013
Senate Confirms Jeh Johnson as Secretary of Homeland Security
The Senate confirmed Jeh Johnson 78-16 to be the next Secretary of the Department of Homeland Security (DHS) Monday evening. As DHS Secretary, Johnson will be responsible for ensuring the border is secure, enforcing immigration laws within the U.S., and managing a massive administrative system that issues documents and immigration benefits to millions of foreign nationals entering the U.S. each year.
While Johnson's biography suggests he has some national security experience, he appears to lack any experience on immigration. (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 the 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)
News reports suggest President Obama's appointment of Johnson, a longtime Democrat donor, is payback for his years of support. For example, federal campaign finance records show that over the past decade, Johnson has contributed more than $100,000 to Democratic candidates and groups. (Fox News, Oct. 18, 2013) In particular, Johnson gave more than $33,000 to Obama's 2008 presidential campaign. (Id.) In fact, his ties with President Obama extend to more than just donations, with then candidate-Obama's campaign website listing him as both a member of his national finance committee and as a foreign policy advisor. (Id.) He also donated $2,300 to Hillary Clinton's presidential primary campaign. (Id.)
Senate Paves Way for No. 2 at DHS, Ignores He's Under Investigation
In addition to the full Senate's confirmation of Secretary Jeh Johnson, the Senate committee on Homeland Security and Governmental Affairs last week approved the nomination of current U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to be the next deputy secretary. The committee approved Mayorkas in spite of an investigation pending against him by the DHS Inspector General for impropriety relating to the EB-5 investor visa program.
The investigation of Mayorkas initially began as a survey of the EB-5 visa program, which grants foreign investors a green card if they invest between $500,000 and $1 million into a new business that creates a certain number of jobs for U.S. workers. (See INA 203(b)(5); see also USCIS Website, July 3, 2012) Mayorkas was named by the Inspector General's Office as a target in the investigation involving the USCIS run program, according to an email sent to lawmakers in July. (Associated Press, July 23, 2013) The FBI was told about the investigation in June after it inquired about Mayorkas as part of the White House background investigation for his nomination as Deputy DHS Secretary. (Id.) According to the Associated Press, the Bureau has been concerned about the investor visa program and the projects funded by foreign sources since at least March. (Id.)
Senate Majority Leader Harry Reid (D-NV) filed "cloture" on Mayorkas' nomination Monday. (See Senate Democrat Executive Calendar; see also The Hill, Dec. 16, 2013) 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 Mayorkas this week before the Senate leaves for the holidays. (Id.)
Reid Pressured USCIS for Foreign Investor Visas
According to recent news reports, Senate Majority Leader Harry Reid (D-NV) pressured U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to grant expedited review of visa applications for about two dozen foreign investors to a casino hotel renovation project in his home state of Nevada. (Washington Times, Dec. 10, 2013) The foreign investors, who have given large donations to Democrats in recent years, received EB-5 visas for investing in the SLS Hotel, which is represented by Sen. Reid's son, Rory Reid. (Daily Caller, Dec. 12, 2013)
Prospective SLS Hotel funders applied to the EB-5 visa program, which grants foreign investors a green card if they invest between $500,000 and $1 million into a new business that creates a certain number of jobs for U.S. workers. (See INA § 203(b)(5); see also USCIS Website, Dec. 16, 2013) USCIS has the discretion to put certain EB-5 visa applications on expedited review based on certain criteria, such as severe financial loss to the company or national interest. (USCIS Website, Dec. 16, 2013)
Last December, USCIS career staff rejected expedited review of the EB-5 visa applications for investors in the SLS hotel. In rejecting the expedited review, the USCIS employees noted concerns about "suspicious financial activity" of the visa applicants. (Washington Times, Dec. 10, 2013) However, in January, Senator Reid personally reached out to USCIS Director Mayorkas, who in response promised a "fresh look" on the application. (Id.) Subsequently, according to reports Reid's staff engaged in a "long yelling match on the phone" with USCIS Legislative Affairs official Miguel Rodriguez. (Id.) Within a few weeks of Reid's call, the expedited review was granted. (Id.)
Alarmingly, Mayorkas, who is the nominee for the No. 2 position in the Department of Homeland Security (DHS) and was just advanced by the Senate committee of jurisdiction, is embroiled in other EB-5 controversies. In fact, the DHS Inspector General is investigating whether Mayorkas improperly helped approve the visa for a Chinese executive at the request of a Virginia-based tech company run by former Secretary of State Hillary Rodham Clinton's brother. (Associated Press, July 23, 2013) Furthermore, whistleblowers have reportedly told Ranking Member of the Senate Judiciary Committee, Chuck Grassley (R-IA) that Mayorkas has a long history of failing to properly vet EB-5 applications for national security concerns. (See Grassley Press Release, July 24, 2013)
First DHS Secretary Calls President Out for "Unacceptable" Leadership Vacuum
On Thursday, December 12, the House Committee on Homeland Security held a hearing entitled "Help Wanted at DHS: Implications of Leadership Vacancies on Mission and Morale." Former Pennsylvania Governor Tom Ridge, who oversaw the creation of DHS and served as its first secretary, testified during the first of the hearing's two panels. (Federal Daily News, Dec. 13, 2013).
In his opening remarks, Ridge explained the scale of the vacancy problem at DHS. "A simple review of the leadership link to the DHS website shows a disconcerting number of senior and critical posts designated as 'acting' or 'vacant,'" he said. He further noted that for several months this year, "15 senior DHS leadership positions were vacant simultaneously," and that "there has been no confirmed Inspector General for more than two years." (Prepared Testimony of Tom Ridge, Dec. 12, 2013) Ridge explained that permanent leaders are vital to the Department's success, for "you simply cannot build nor can you sustain a mission-focused culture with a high number [of] vacancies and leaders in non-permanent status. At the end of the day, no organization can function effectively without hav[ing] trusted, respected, and consistent leadership." (Id.)
Congressman Lou Barletta (R-PA) brought attention to the national security implications of these vacancies, noting in particular that the position of Undersecretary for the Office of Intelligence and Analysis, which collects, shares, and manages intelligence for DHS, has been vacant for over a year. Ridge answered that leaving such a position vacant so long was "unacceptable," saying "I can't imagine any position being more important to the Secretary than someone who has the ability and the requirement and the resourcefulness to communicate with on a daily basis the intelligence agencies, to take the information and make it relevant to the Department, but also to the state and local governments." (See Barletta Press Release, Dec. 12, 2013).
To address the issues raised by Members of Congress on the Committee, Ridge had two main suggestions. First, he said that the Office of Presidential Personnel must better anticipate vacancies and vet candidates in a timely manner, remarking that its failure to do so "sends a troubling signal about the Administration's level of commitment to the mission." He also recommended that the Senate act in a timely manner to schedule votes without "political gamesmanship." Secondly, Ridge testified that Congress must reorganize homeland security oversight, explaining that, as DHS currently reports to over 100 congressional committees, its leaders must spend too much time at various committee hearings to focus on their own mission. He said: "the current number of congressional committees with homeland security jurisdiction is not oversight, it is overkill." (Prepared Testimony of Tom Ridge, Dec. 12, 2013)
The hearing also included a second panel of witnesses who also offered their ideas about DHS's vacancy problems. Max Stier, President and CEO of Partnership for Public Service, which publishes an annual report ranking employee satisfaction in federal agencies called Best Places to Work in the Federal Government, shared former Secretary Ridge's belief that leadership vacancies are a significant problem. He noted that DHS employees have a widespread perception they are being mismanaged and cited results from the latest rankings, such as that only 21.6% of DHS employees feel that promotions at DHS are based on merit, and only 26% believe that creativity and innovation are rewarded. (Prepared Testimony of Max Stier, Dec. 12, 2013) David Maurer, Director of Homeland Security and Justice Issues at the U.S. Government Accountability Office, also cited surveys of DHS employees, but said that the poor morale found in such surveys was a symptom of DHS's problems, rather than a root cause, and more analysis must be done. He noted that that low morale is not found at the same levels across DHS, but is lower at specific agencies, such as Immigration and Customs Enforcement. (Prepared Testimony of David Maurer, Dec. 12, 2013).
Asylum Hearing Shows Program Being Exploited
Last Thursday, the House Judiciary Committee held its final immigration hearing of 2013 entitled, "Asylum Abuse: Is it Overwhelming our Borders?" The hearing focused on recent data from the Congressional Research Service indicating that asylum claims from illegal aliens in the U.S. have nearly tripled since 2012, from 13,931 to 36,026 claims, with 92 percent approved. (Congressional Research Service Testimony, Dec. 12, 2013) The illegal aliens claiming asylum primarily arrived from El Salvador, Guatemala, and Honduras, but notably there was also an increase from Mexico, India, and Ecuador. (Id.)
Under federal immigration law, the U.S. government can grant asylum to individuals who claim a fear of persecution or torture by their own government. Specifically, the Immigration and Nationality Act (INA) reads that asylum may be granted to "any person who… is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion..." (See INA 208(b)(1)(A); 101(a)(42)(A))
However, illegal aliens in expedited removal proceedings who claim asylum — the source of the increase in asylum claims examined at the hearing — must first demonstrate a "credible fear of persecution" in order to avoid being deported without a hearing. (INA 235(b)(1)(B)) In this situation, U.S. Citizenship and Immigration Services (USCIS) first conducts a "credible fear" screening interview and any alien found not to have a credible fear is immediately put in removal proceedings. If USCIS determines that the alien has a credible fear, the INA explicitly states that the alien "shall be detained for further consideration of the application for asylum." (Id.) An alien may only be released from detention prior to the full asylum hearing, known as parole, for "urgent humanitarian reasons" or "significant public benefit." (INA 212(d)(5); 8 C.F.R. 212.5(b))
Despite clear language in the INA and relevant regulations limiting the instances where parole from detention may be granted for asylum seekers, the Obama Administration expanded its application by executive fiat. Through a policy directive, former Immigration and Customs Enforcement (ICE) Director John Morton authorized parole for any asylum applicant with a "credible fear" who "presents neither a flight risk nor danger to the community." (ICE Directive, Dec. 8, 2009) This policy change effectively releases most aliens claiming asylum who entered the country unlawfully into the country until their asylum hearing can be heard by an immigration judge, sometimes years from the initial claim.
Judiciary Chairman Bob Goodlatte (R-VA) argued the Obama Administration's expansion of parole is to blame for the significant rise in asylum seekers. "As a result of these lax detention standards and ease of being found to have a credible fear, claims have increased dramatically in recent years," Goodlatte charged. (Bloomberg Government Transcript, Dec. 12, 2013) "The purpose is not to obtain asylum, but rather to game the system by getting a free pass into the U.S. and a court date for which they do not plan to show up," Goodlatte argued. (Id.) "And not surprisingly, the time of [the December 2009 Morton] memo appears to correlate with the uptick of credible fear claims in recent years," he added. (Id.)
Likewise, Committee Republicans highlighted the benefits available to those who claim asylum to underscore the abuse. "It appears to me that word has gotten out that a 'credible fear' claim might be a good way to get into the country," said Rep. Trent Franks (R-AZ). (Id.) Representative Jason Chaffetz (R-UT) noted that "these credible fear claimants almost always get approved and are released into our communities… when their asylum claims are ultimately denied, they simply add to the fugitive population in the U.S." (Id.) "In the meantime, [they're] going to get free education, free health care and … probably going to get a work permit," he added. (Id.) Immigration Subcommittee Chairman Trey Gowdy (R-SC) pointed out that "there is no disincentive for claiming [asylum], even if it's not true." (Id.)
Committee Democrats in favor of amnesty dismissed Republican claims that asylum is being exploited. "We don't have an epidemic of abuse that can be documented," declared Rep. Sheila Jackson Lee (D-TX). (Id.) Representative Luis Gutierrez (D-IL) defended the asylum evaluation process as "very rigorous," insisting that any abuse is minimal. (Id.) Representative Zoe Lofgren (D-CA) objected to the idea that the Southern border is being overrun with asylum claims. "Are our borders overwhelmed? By historical measures the answer is clearly no," Lofgren said.
The hearing's witnesses cautioned that it is too early to determine whether the recent surge in asylum claims is due to abuse. "An increase in asylum or credible fear claims in and of itself does not signify an increase in the abuse of the asylum process any more than a reduction in asylum or credible fear claims signifies a reduction in the abuse of the asylum process," said Ruth Wasem, immigration specialist from the Congressional Research Service. (Id.) Lori Scialabba, the deputy director of U.S. Citizenship and Immigration Services, added that "we are concerned with the large number of people who are claiming credible fear, but the stories that we're hearing and that they're telling us do rise to the low level that's required for credible fear referral." (Id.)
Rep. Black Fights to Remove Illegal Alien Lobbyist
True immigration reformer Rep. Diane Black (R-TN) introduced legislation (H.R. 3732) last week that would put an end to the Administration's illegal alien lobbyist position once and for all.
In February of 2012, the Obama Administration created a new "Public Advocate" position for illegal aliens. Senior U.S. Immigration and Customs Enforcement (ICE) Advisor Andrew Lorenzen-Strait was appointed as the new advocate and served as a point of contact for aliens in removal proceedings, community and advocacy groups, and others who had concerns, questions, recommendations or other issues they would like to raise about the Administration's executive amnesty efforts. (ICE Press Release, Feb. 7, 2012)
Thanks to the work of Congressman Black earlier this legislative session, Congress eliminated the Public Advocate position as part of the "Consolidated and Further Continuing Appropriations Act of 2013" (legislation that funded the federal government through the end of the 2013 fiscal year). (See Public Law 113-6, Mar. 26, 2013; see also H.R. 933) Section 567 of the Act read, "None of the funds made available by this Act may be used to provide funding for the position of Public Advocate within U.S. Immigration and Customs Enforcement."
Despite signing the appropriations bill that eliminated the job into law, President Obama defied it by simply changing the name of the "Public Advocate" position while keeping the same job description. (Fox News, Sept. 5, 2013) Lorenzen-Strait became the Deputy Assistant Director of Custody Programs and Community Outreach, where he performs the same duties as the now defunct Public Advocate position. (Id.)
Representative Black's new bill would put a stop to the Administration's skirting of this law. Specifically, H.R. 3732 would prohibit federal funds from being used to fund any position at ICE that performs the exact or "substantially the same" functions as the former "Public Advocate" or "Deputy Assistant Director of Custody Programs and Community Outreach" jobs. (See H.R. 3732 § 3).
"It is an outrage that federal bureaucrats think they can simply skirt the law, in essence ignoring the will of the people by playing a shell game and hiding ICE employees and activities with a mere title change," said Congressman Black of the Administration's behavior. (Rep. Black Press Release, Dec. 17, 2013) "To stop this blatant abuse of power, I have introduced H.R. 3732, the Immigration Compliance Enforcement (ICE) Act. This bill would defund both positions and prohibit the creation of any new position within ICE that would allow the agency to ignore the law and continue its pro-illegal immigration activities. It is of utmost importance that ICE be held accountable and be required to follow the spirit of the law, not just the letter." (Id.)
Does the Budget Deal Spell Disaster for Immigration?
Last week, the House of Representatives passed the budget deal brokered by Rep. Paul Ryan (R-WI) and Sen. Patty Murray (D-WA) despite the opposition of outside "conservative" groups. (See Roll Call Vote #640) Without naming any specific groups, Speaker Boehner blasted the critics saying they have "lost all credibility" and accused them of "misleading their followers." (The Hill, Dec. 12, 2013) "I think they're pushing our members in places where they don't want to be," Boehner continued. (Id.)
Heritage Action, which opposed the budget deal and opposes "comprehensive" immigration reform, responded that Boehner's actions clearly signal a desire to pass amnesty in 2014. "The Speaker is trying to turn this into a boring fight between outside groups and himself so we are not having a policy debate about whether or not this is a good deal," charged Heritage Action CEO Michael Needham. (The Hill, Dec. 13, 2013) Needham declared that the deal is "bad for the country and that is what we want to be focused on," adding that "the speaker also wants to clear the way for immigration reform next year." (Id.) Dan Holler, communications director of Heritage Action, charged that Boehner "was sending the signal to conservatives that they don't have a role to play in the Republican House. That has a really big impact on what policy looks like" on other issues like immigration. (The Hill, Dec. 13, 2013)
Pro-amnesty groups expressed optimism that the budget split could result in an immigration bill passing the House next year. "Boehner's power in the conference is going to be improved," claimed Tamar Jacoby, president of ImmigrationWorks USA. (Id.) "Anything that gives him more juice is a good thing." (Id.) Kica Matos, an activist for the Center for Community Change, noted that the groups Boehner lashed out at "have traditionally and historically been rabidly opposed to immigration reform." (Id.)
Yet others, including the Speaker's office, claim that the budget deal has zero bearing on immigration reform. Boehner spokesman Michael Steel claimed "the agreement has nothing to do with the need to fix our broken immigration system." (Associated Press , Dec. 16, 2013) "It is probably a different calculus because the split in the Republican caucus on spending is between the old bulls who miss earmarks, and the budget-balancers. I'm not sure it is going to have an impact on immigration," said FreedomWorks president Matt Kibbe, whose organization has stated it is not taking on a position on immigration. (Id.) "I don't see that this is a clear channel for us to move immigration," added Rep. Pete Sessions (R-TX). (Fox News Latino, Dec. 15, 2013) "I don't think that's what this was about." (Id.)
Vice President and White House Aide Call for Amnesty in Skype Chat
During last Wednesday's streaming chat sponsored by Skype and Bing, Vice President Joe Biden claimed he descended from illegal aliens and called for Speaker John Boehner (R-OH) to take up the Senate mass amnesty bill. (See Ask the White House video) He was joined by White House Domestic Policy Advisor Cecilia Muñoz, who pledged that the Obama Administration would continue to implement backdoor amnesty in the absence of Congressional action. (Id.)
In his opening comments on the chat, Biden made a questionable claim that his ancestors broke immigration laws. Biden declared, "My great-great-grandparents came escaping the famine, and they didn't all come here legally." (Politico, Dec. 11, 2013) However, Temple Law Professor Jan Ting noted that "the Vice President's claims are simply not true" because there were no limits on U.S. immigration during the potato famine of the 1840s when Biden's ancestors left Ireland. (Ting's Blog, Dec. 12, 2013)
Biden also mischaracterized the status of S. 744, the Senate's mass amnesty bill. Biden criticized Speaker John Boehner (R-OH) for "not call[ing] up the bill passed overwhelmingly by the Senate." (Politico, Dec. 11, 2013) However, Senate Majority Leader Harry Reid (D-NV) never sent the bill to the House, a necessary step before the Speaker of the House of Representatives can act.
In addition, Domestic Policy Advisor Cecilia Muñoz promised that the President would extend his administrative amnesty if Congress does not pass an amnesty bill. (Daily Caller, Dec. 11, 2013) Muñoz was referring to the Deferred Action for Childhood Arrivals (DACA) program, announced in 2012, in which the Administration grants two year terms of "lawful presence" and work authorization to illegal aliens up to the age of 31 who meet certain criteria. (See FAIR's Legislative Update, June 19, 2012) Responding to a DACA applicant concerned about the expiration of those two years, Muñoz said, "As long as this president is president… you're going to be able to renew your deferred action." (Daily Caller, Dec. 11, 2013)
Although the Obama Administration advertised the event to the American public as an opportunity for the White House to "answer your questions about immigration reform" live, the Obama Administration vetted the questioners in advance. (Politico, Dec. 12, 2013) Both of the sponsors of the chat, Skype and Bing, are owned by the pro-amnesty tech company, Microsoft. (Politico, Dec. 11, 2013)
Last Thursday, December 12, the New Jersey Assembly Budget Committee passed a bill, SB 2479, by a vote of 8 to 4, that grants taxpayer-funded in-state tuition rates and financial aid to illegal aliens. The same bill passed the Senate by a vote of 25 to 12 in November. (FAIR Legislative Update, Nov. 20, 2013)
SB 2479 allows illegal aliens to qualify for in-state tuition and financial aid if they:
- Attended high school in New Jersey for three or more years;
- Graduated from a high school or received a GED in New Jersey;
- Register as an entering student or enroll in a college or university no earlier than fall 2013-2014; and
- File an affidavit with the school stating that they have filed an application to legalize their immigration status or will do so as soon as they are eligible.
Assemblyman Jay Webber (R-Morris) opposes the bill, arguing it discriminates against out-of-state U.S. citizens in favor of illegal aliens who grew up in the state. "Don't we have obligations to our fellow citizens even though they might not live in the state of New Jersey?" asked Webber. (NJ.com, Dec. 12, 2013) Likewise, Barbara Eames, co-founder of the Morris Patriots, said the bill "erodes the value of citizenship" and "abridges the rights of citizens." (Id.).
Governor Chris Christie (R) likewise believes SB 2479 discriminates against out-of-state citizens in favor of out-of-state illegal aliens and will not sign the bill if it passes the Assembly:
"Giving undocumented, out-of-state students benefits that out of state citizens aren't eligible for, I'm not in favor of," Christie said. "So under the current piece of legislation, if you're an undocumented student who lives in Pennsylvania, and you come over to go to private or parochial school in New Jersey, under this bill, you would then be entitled to, if you spent three years in that school, to in-state tuition. If you're a citizen in Pennsylvania, and you come over, and spend three years, you're not entitled to that." (ABCNews.com, Dec. 2, 2013)
Governor Christie also said the bill as written is too rich because it provides financial aid to illegal aliens in addition to in-state tuition rates and reaches further than President Obama's Deferred Action for Childhood Arrivals program by not restricting the aid to illegal aliens who entered the United States before 2012. (Washington Post, Dec. 2, 2013) According to Christie, these additional benefits would make New Jersey a magnet state for illegal aliens. (Id.)
When confronted with his pre-election statements that he would support a tuition equity bill, he retorted:
"I said...that I believe in tuition equality. This is beyond tuition equality. This is tuition equality plus plus plus," he argued. "I'm not putting the taxpayers of this state at any greater burden on this. Send me tuition equality, I'm willing now to do that. Send me tuition equality plus, or plus plus, or plus plus plus–and I'm not signing it. It's that simple." (Breitbart.com, Dec. 4, 2013)
Christie claims if presented a clean tuition equity bill addressing his concerns noted above, he would sign it. Senate President Stephen Sweeney, a Democrat, said the governor would get SB 2479 "as is." (Fox News Latino, Dec. 3, 2013)
The Assembly's passage of SB 2479 marks a reversal from its position in June, when it passed an in-state tuition bill for illegal aliens that did not include financial aid (AB 4225). But despite Governor Christie's opposition to financial aid for illegal aliens, the Assembly Budget Committee added a financial aid provision to its in-state tuition bill. The bills will now be considered by the full Assembly.
In October, FAIR wrote to Governor Christie urging him to not support granting taxpayer-funded in-state tuition rates and financial aid to illegal aliens at New Jersey's public universities and colleges. Although Christie has yet to respond to FAIR's letter, he did incorporate some of FAIR's objections in his recent statements opposing SB 2479 as written.