Legislative Update: 2/23/2016 
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Legislative Update: 2/23/2016


Universities Helping Put DACA Students on Path to Citizenship

Several Southern California universities are actively assisting illegal alien students to further exploit our immigration laws and be placed on a path to citizenship. Specifically, the university officials are encouraging Deferred Action for Childhood Arrivals (DACA) recipients to apply for "advance parole" before departing the country on a study abroad trip. (See The Press Enterprise, Feb. 14, 2016) According to Armando Vazquez-Ramos, a professor of Chicano Studies at Cal State Long Beach, he helped 30 DACA students get advance parole in December 2015 before taking them to study and visit family in Mexico. (Id.) He plans to take another round of students this summer. (Id.)

Advance parole is essentially a tool that allows an illegal alien to leave the U.S. with a promise of being "paroled" back into the U.S. upon return. (See FAIR Legislative Update, Feb. 24, 2015) Advance parole has been used for decades by immigration officials, who administratively created the tool, ostensibly basing its authority on the humanitarian parole statute. (Immigration and Nationality Act § 212(d)(5)) Granting parole is significant, because it allows aliens to circumvent provisions in the law that would normally bar their admission. (See INA § 201(b)(2)(A)(i); § 245(a)) Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. INA Section 212(a)(9)(B) bars the admission of aliens who have been illegally present in the U.S. between six months and a year for three years; it also bars the admission of aliens who have been illegally present in the U.S. for over a year for ten years. (INA § 212(a)(9)(B)) But, by paroling them instead of admitting them into the country, the 3- and 10-year bars do not apply. (Id.)

Furthermore, now that the alien has entered the country through parole, the alien avoids certain grounds for inadmissibility, such as INA § 212(a)(6), which applies to aliens who are present in the country without "admission or parole," and INA § 212(a)(7), which applies to aliens who are not in possession of valid entry documents. (INA § 212(a)(6-7)) Moreover, paroled aliens who are immediate relatives of U.S. citizens are generally eligible to apply for a green card and citizenship. (See INA § 245(a), (c)(2); see also USCIS.gov)

Last year, House Judiciary Chairman Bob Goodlatte (R-VA) first exposed the administration's plan to utilize advance parole to put DACA recipients on a path to citizenship despite the President's claims that his executive amnesty does not include such a pathway. (See FAIR Legislative Update, Feb. 24, 2015) The fact that universities — especially taxpayer funded public universities — are actively assisting illegal aliens to exploit advance parole to travel to their home countries and visit family under the guise of "study abroad" is particularly outrageous. Thus far, 6,400 DACA recipients have requested advance parole (with 88% approved) but it is possible that as many as 1.3 million illegal aliens are immediate relatives of U.S. citizens and could exploit advance parole to be put on a path to citizenship.

Implications for U.S. v. Texas After Justice Scalia's Death

The legal world was stunned by the unexpected passing of Justice Antonin Scalia, leaving many to wonder how his absence will impact the cases currently before the Supreme Court. Until a new Supreme Court justice is confirmed by the Senate, the high court will function with only eight justices setting up the potential for a 4-4 split vote. This outcome is particularly likely in U.S. v. Texas — the 26 state lawsuit challenging President Obama's November 2014 executive amnesty programs — with the four justices appointed by Republican presidents expected to side with the states and the four justices appointed by Democratic presidents expected to side with the government.

In the event of a tie vote, the lower court's decision stands. Under this scenario, the Fifth Circuit Court of Appeals ruling in favor of the states will be upheld. Last November, the Fifth Circuit kept in place Judge Hanen's injunction blocking the implementation of Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). (See FAIR Legislative Update, Nov. 17, 2015) With the injunction still in place, the case will return to Judge Hanen for the parties to litigate the merits of whether President Obama has the authority to unilaterally grant executive amnesty. After Judge Hanen rules on the merits, the case will assuredly be appealed to the Fifth Circuit by the losing party and then appealed again to the Supreme Court. In total, the litigation is expected to last several years before it returns to the Supreme Court and, by that time, Justice Scalia's vacant seat will be filled.

However, there are several other notable implications for a 4-4 vote. A tie vote means there is no Supreme Court precedent so the outcome (upholding the injunction) technically only applies to the states within the federal Fifth Circuit: Texas, Louisiana, and Mississippi. Many court observers believed that Justice Scalia would side with the states which would have established a 5-4 precedential ruling. Additionally, the Supreme Court is unlikely to provide an analysis when it rules on the appeal later this year and instead offer a simple statement affirming the lower court's holding. This is significant because when the Supreme Court accepted the case, it specifically asked the parties to brief and argue whether DAPA and expanded DACA "violates the Take Care Clause of the Constitution, Art. II, §3." (See FAIR Legislative Update, Jan. 19, 2016)

FAIR believes U.S. v. Texas is the most important case the Supreme Court will decide this year. The Court is expected to hear arguments in April and issue a ruling in June. Stay tuned to FAIR and IRLI.org as details emerge.

Pope Francis Expresses Opposition to Border Wall During Trip to Mexico

Hours after a visit to the U.S.-Mexico border, Pope Francis attacked Republican front-runner Donald Trump, telling reporters aboard the papal plane that anybody who wants to build a border wall is not a true Christian. (Washington Post, Feb. 18, 2016) "A person who thinks only about building walls — wherever they may be — and not building bridges, is not Christian," Francis said. (Id.) "I'd just say that this man is not Christian if he said it this way." (Id.)

This is not the first time the pontiff has ventured into U.S. immigration policy. In a September address to Congress, he implored the U.S. and other developed nations to admit more immigrants. (Washington Post, Sept. 24, 2015) "Each son or daughter of a given country has a mission, a personal and social responsibility," the 78-year-old pope said to lawmakers. (Id.) "Your own responsibility as members of Congress is to enable this country, by your legislative activity, to grow as a nation." (Id.)

While Pope Francis is a genuinely good and compassionate man, his view on immigration is problematic. Responding to the pope's Congressional address, FAIR's president Dan Stein said, "It is self-evident that people immigrate in the expectation that it will produce an advantage. Nobody uproots themselves from their native soil and moves to a country where they are not familiar with the culture and language unless doing so satisfies some compelling self-interest. It is clear that this is the perspective that shapes Francis's views on immigration." (FAIR Statement on Pope's Visit, Oct. 1, 2015) However, Stein pointed out that "Numbers do matter. They matter greatly. Immigration does not just affect immigrants. Immigration deeply affects the receiving countries and the settled populations of those countries. That is precisely why the United States and virtually every nation on earth has immigration laws and sets limits on the number of people who are accepted for admission." (Id.)

Obama's Visit to Cuba Another Reason to Repeal Cuban Adjustment Act

Last Thursday, the White House announced that President Obama is set to become the first sitting U.S. President to visit Cuba in 88 years. (CNN, Feb. 18, 2016) The visit, scheduled for March 21-22, is another step in the administration's ongoing efforts to "normalize" diplomatic relations with the communist island nation. (Id.) "We still have differences with the Cuban government that I will raise directly. America will always stand for human rights around the world," Obama tweeted. (Id.) "Next month, I'll travel to Cuba to advance our progress and efforts that can improve the lives of the Cuban people." (Id.) The White House also confirmed that the President will meet with Cuban President Raul Castro, as well as business leaders and influential members of Cuban society. (Id.)

The President's historic visit indicates substantive political change in Cuba that should result in the repeal of our outdated immigration policies that afford special privileges to Cuban nationals. (See FAIR Press Release, July 6, 2015) Under the Cuban Adjustment Act and wet foot/dry foot policy, this Cold War-era law provides immigration benefits to Cuban migrants not offered to citizens of any other country. Cuban nationals who set foot in the United States are allowed to remain and can adjust to permanent resident status after one year. While the administration has announced that it does not intend to change the migratory status of Cubans in the near future, Rep. Paul Gosar (R-AZ) has introduced legislation that would repeal the Cuban Adjustment Act, ensuring that Cuban nationals are treated the same as citizens of every other country. (See FAIR Press Release, Oct. 23, 2015; Gosar Press Release, Oct. 23, 2015) In a statement endorsing Rep. Gosar's bill, FAIR's president Dan Stein said, "As a nation, we can continue to encourage political and economic reform in Cuba but there is no justification for maintaining a policy that allows any Cuban who reaches U.S. soil to remain and gain legal residency status within one year." (FAIR Press Release, Oct. 23, 2015)

Wisconsin Next in Line to Ban Sanctuary Policies

The Wisconsin Assembly passed AB 450 on Tuesday, February 16, to support the rule of law by prohibiting localities in the state from instituting sanctuary policies that impede federal immigration enforcement. (Fox 6 Now, Feb. 16, 2016) AB 450 was approved overwhelmingly in the Assembly, by a vote of 62-35. (Id.) Wisconsin is one of about a dozen states this year considering legislation to ban sanctuary cities.

Specifically, AB 450 bans localities in Wisconsin from having policies that prevent local officials from inquiring into the immigration status of arrestees, maintaining immigration status information, or communicating that information to federal immigration officials. (AB 450 at § 2) The bill also prohibits local governments from prohibiting law enforcement from cooperating with federal immigration officials on immigration enforcement matters. (Id.) Any locality that violates AB 450 may be subject to a reduction in state shared revenue funding by between $500 and $5,000 per day of violation, depending on the locality's population. (Id. at § 3)

Representative John Spiros (R-86), sponsor of AB 450, said he was motivated to introduce the legislation following the fatal shooting of Kate Steinle in San Francisco, California, last summer. (Fox 6 Now, Feb. 16, 2016) Steinle was killed by an illegal alien who had previously been released from local custody pursuant to San Francisco's sanctuary policy. (FAIR Legislative Update, July 8, 2015) Because many sanctuary policies prohibit law enforcement officers from transferring criminal aliens already in their custody to federal custody, law enforcement officers are forced to release criminal aliens back into the community, thus subjecting the general public to a wide variety of public safety risks. (FAIR Report, Oct. 2 2015) "We're not trying to target immigrants, illegal immigrants, whatever. Basically this bill is to protect all of us," said Representative Spiros. (Cap Times, Dec. 15, 2015)

Arizona, Florida, Iowa, Kansas, and Virginia have also advanced legislation this session to ban sanctuary cities in their communities, while other states have introduced similar measures. Recent media coverage of crimes committed by illegal aliens reignited public outrage against sanctuary policies and motivated state legislators to introduce legislation to promote enforcement and cooperation. State and local law enforcement are often on the front lines in dealing with crime involving transnational gang activity, human trafficking, smuggling, drug related offenses, and other serious crimes often tied to illegal immigration. When state and local law enforcement fail to contact federal immigration officials, criminal aliens are able to reenter communities and engage in further criminal activity at the expense and safety of citizens and lawful aliens.

In addition to prohibiting sanctuary policies, some anti-sanctuary bills introduced this session, such as Virginia House Bill (HB) 481 and Senate Bill (SB) 705, impose financial liability on jurisdictions that implement sanctuary policies if an individual gets injured because of that policy. (FAIR Legislative Update, Feb. 16, 2016) Florida's HB 675, introduced by Representative Larry Metz (R-32), requires public employees to report if they know that their state or local government has instituted a sanctuary policy in violation of the bill's provisions. (FAIR Legislative Update, Jan. 19, 2016)

Wisconsin's AB 450 has yet to be scheduled for a vote in the Senate, but could be taken up in the upcoming days. (Wisconsin State Legislature) The Wisconsin Senate must approve AB 450 before it can be sent to Governor Scott Walker's desk for his signature.