Legislative Update: 2/16/2016 
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Legislative Update: 2/16/2016


Illegal Aliens Received $750 Million in Taxpayer-Funded Obamacare Subsidies

A new Senate report found that illegal aliens wrongly benefited from nearly a billion dollars in Obamacare subsidies, leaving the government scrambling to recoup the money. (Fox News, Feb. 8, 2016; see Chairman Johnson Press Release) The report, released by Sen. Ron Johnson (R-WI), chairman of the Senate Homeland Security and Governmental Affairs Committee, examined the Centers for Medicare and Medicaid Service’s (CMS) practice of distributing cost assistance in the form tax credits to Obamacare enrollees. (Fox News, Feb. 8, 2016) Chairman Johnson’s inquiry found that, as of June 2015, the administration awarded approximately $750 million in tax credits to more than 500,000 individuals who were later determined to be ineligible because they failed to verify their citizenship, status as a national, or legal presence. (Id.)

CMS confirmed that, in 2015, 471,000 Obamacare enrollees failed to verify their citizenship or immigration status within the required time period. (Id.) According to CMS spokesman Aaron Albright, "lack of verification does not mean an individual is ineligible for financial assistance, but only that a Marketplace did not receive sufficient information to verify eligibility in the time period outlined in the law." (Id.) Federal law allows subsidy payments on a temporary basis if a recipient’s citizenship or immigration status is unclear. (Id.) However, if the recipient is still unable to come up with documentation proving his or her legal status, coverage is suspended and the IRS is supposed to collect overpayments from the wrongly-covered individual. (Id.) The Senate report dubbed this costly approach "pay and chase" and predicted that, due to a lack of interagency coordination and planning, the IRS will be unable to fully recoup the funds. (Id.)

UAC Surge Causes Significant Court Backlogs

The continuing surge of unaccompanied alien minors (UACs) is overwhelming immigration courts, leading to a significant backlog in hearing dates. Indeed, immigration courts in Texas are reaching a crisis point with courts in Houston, which has the third most pending cases behind Los Angeles and New York, now scheduling hearings for late November 2019. (Houston Press, Feb. 10, 2016) The backlog has been substantially increasing for months. For example, in May 2015, the number of cases in Texas increased by nearly 60 percent from 2013 to almost 77,000 making it the largest backlog in the country behind only California. (Houston Chronicle, May 15, 2015)

The size of the backlog is unsurprising for several reasons. First, the Obama administration’s refusal to enforce the law encourages increased illegal immigration. Additionally, the immigration courts are severely understaffed. (See FAIR Legislative Update, May 27, 2015) Further exacerbating the court backlogs is the additional layers of process UACs and family units from Central America receive. 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. 15, 2015) Predictably, the National Border Patrol Council estimates that 80-90 percent of UACs fail to show up for the hearing. (Id.) Unsurprisingly, Honduras, El Salvador, and Guatemala, the principal countries driving the surge, have the highest number of cases pending in the courts. While President Obama continues to blame Central American violence for the surge rather than his non-enforcement policies, he has prioritized these UAC cases before others in an effort to address the issue which has resulted in the increased backlog for other illegal aliens.

The ramifications caused by the court backlog means that illegal aliens in Houston are projected to wait at least five years before they have their hearing. "There is no way that all cases currently scheduled for Nov. 29, 2019 could get heard on that date," Denise Gilman, director of the Immigration Clinic at University of Texas School of Law, said in an email to the Houston Press. (Houston Press, Feb. 10, 2016) "It’s literally thousands in Houston and also in San Antonio. I think the courts had some hope that they would advance some of those hearings to an earlier date once things sorted out, but I think it’s actually just as likely that the hearing dates for many of those cases will get pushed back later than Nov. 29, 2019." (Id.) Furthermore, according to the Transactional Records Access Clearinghouse (TRAC), seventy-one percent of the scheduled hearings are "master calendar hearings" which are an alien’s first appearance before an Immigration judge usually to explain the process and the charges filed against them with additional hearings scheduled later. (TRAC, Sept. 21, 2015) Without a functioning court system, illegal aliens are not only likely to become entrenched in the United States but they are also likely to skip their hearing and disappear into the interior of this country.

Senator Sessions Argues For Cutting Legal Immigration Levels

True immigration reformer Sen. Jeff Sessions (R-AL), chairman of the Judiciary Subcommittee on Immigration and the National Interest, is pointing out yet again that the current levels of legal immigration are harming American citizens. "According to Pew research, after five decades of unprecedented immigration, a record number of Americans are not working," Sessions charges. (Sessions Press Release, Feb. 11, 2016) Indeed, a Center for Immigration Studies (CIS) report found that all employment growth since 2000 went to immigrants. (See CIS Report, June 2014)

In keeping with his goal of making immigration a key issue in the presidential election, Sessions produced a chart that compares the number of green cards issued per month with the annual number of high school diplomas issued in South Carolina. Noting that the U.S. admits approximately one million legal permanent residents (green card holders) a year, Sessions points out that is a rate of 83,333 per month. (Sessions Press Release, Feb. 11, 2016) By comparison, only 45,137 young people in South Carolina received a high school diploma in 2014. (Id.) "Not only will these 45,137 young men and women compete against these new Lawful Permanent Residents for jobs and spots in universities and trade schools, but they will also face competition from the approximately 700,000 guest workers allowed to work in the United States through other visa programs each year, or the roughly 500,000 foreign students who are permitted to study in the United States each year (and in some cases, who have been permitted to work in the United States contrary to Congressional authorization)." (Id.)

The South Carolina Republican primary is February 20 while the Democratic primary is February 27.

Virginia General Assembly Takes a Stand Against Sanctuary Policies

The Virginia General Assembly advanced three bills last week to increase state and local cooperation with federal immigration authorities and ban sanctuary policies that impede immigration enforcement. The Virginia General Assembly is one of about a dozen state legislatures this year to tackle sanctuary cities head on with statewide legislation.

Specifically, the Virginia House of Delegates passed House Bill (HB) 481 to prohibit law enforcement from releasing any criminal alien subject to an immigration detainer, except for the purpose of transferring the criminal alien to federal custody or another facility. (HB 481 at §1A) Under HB 481, if law enforcement officials violate this provision and an alien goes on to later injure an individual, that person will be compensated for such injury by the state’s criminal injuries fund. (Id. at §1C) HB 481 passed the House of Delegates by a 68-29 vote, with bipartisan support. The Senate Committee on Rehabilitation and Social Services must next approve of HB 481 before it can proceed to a full Senate vote.

Additionally, the Virginia Senate voted 21-19 to pass Senate Bill (SB) 270, which would prohibit localities from enacting any sanctuary ordinance, procedure, or policy that restricts the enforcement of federal immigration law to less than the full extent permitted by federal law. (SB 270 at §1) Under SB 270, any locality found to have violated the measure by enacting a sanctuary policy will see a reduction in their state funding. (Id.) SB 270 has been referred to the House Committee for Courts of Justice and must be approved by the committee before it can advance to a floor vote in the House.

The Virginia Senate also advanced SB 705, which makes any locality that adopts a sanctuary ordinance liable for the injury of any person or property caused by an illegal alien within that locality. (SB 705 at §1) While SB 705 creates a remedy for the public safety consequences of refusing cooperation with ICE, the measure does not explicitly prohibit sanctuary policies or require cooperation with federal immigration officials. (Id.)

"This is very simple: We are either voting for rule of law or voting against it," commented Senator Thomas Garrett (R- 22), sponsor of SB 270. (Washington Times, Feb. 8, 2016) "[W]e’re voting on whether or not we should enforce our laws that are already on our books," Senator Garrett said. (Id.) Currently, at least 11 localities in the state have demonstrated records of refusing cooperation with U.S. Immigration and Customs Enforcement (ICE) requests. (Id.) 

Virginia General Assembly is not the only state legislature to advance measures targeting sanctuary cities this session. (ABC News, Feb. 2, 2016) The Florida House of Representatives recently passed HB 675, which bans sanctuary policies and also allows victims of such policies to claim damages. Anti-sanctuary city bills are also making their way through the Kansas, Wisconsin, Iowa, and Arizona legislatures.