Legislative Update: 3/10/2015 
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Legislative Update: 3/10/2015


Obama Admin. Admits it has Approved 100,000 Expanded DACA Applications

Last Tuesday, the Obama administration revealed that it has already begun implementing part of its new executive amnesty program despite a federal court injunction putting the programs on hold. (See FAIR Legislative Update, Feb. 18, 2015) As part of the sweeping executive actions announced in November — and scheduled to start in February — President Obama broadened the eligibility criteria of the 2012 Deferred Action for Childhood Arrivals (DACA) program by: (1) dropping the age cap, (2) moving up the date by which and alien must be present in the U.S., and (3) extending the grants of deferred action and work authorization from two to three years. (See FAIR Legislative Update, Nov. 24, 2014) After Judge Andrew Hanen issued an injunction on February 16, Department of Homeland Security (DHS) Secretary Jeh Johnson said DHS "will not accept applications for the expanded DACA program on February 18, as originally planned." (Johnson Statement, Feb. 17, 2015)

Yet, the Obama administration now acknowledges that it began approving applications under the new criteria immediately after the November 20 announcement. In a "Defendant's Advisory" dated March 3, Justice Department attorneys informed Judge Hanen that the administration has fully complied with the injunction but added "[o]ut of an abundance of caution" that "USCIS [U.S. Citizenship and Immigration Services] granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year Employment Authorization Documents for those 2012 DACA recipients who were eligible for renewal." (DOJ Defendant's Advisory, Mar. 3, 2015)(emphasis added)

The approval of 100,000 expanded DACA applications is contrary to what DOJ attorneys told Judge Hanen in court pleadings prior to the injunction. In a January 14 motion, the DOJ noted that USCIS "does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015." (See Washington Examiner, Mar. 4, 2015)(emphasis added) During questioning the next day, DOJ attorney Kathleen Hartnett explicitly told Judge Hanen that "no applications" had been granted prior to the injunction.

Now Texas Attorney General Ken Paxton, who is the lead plaintiff in the lawsuit, is demanding answers. In a motion filed March 5, Paxton requests that Judge Hanen allow limited discovery so the states can determine whether the Obama administration intentionally lied to the court. In a statement, Paxton said, "In an apparent attempt to quickly execute President Obama's unlawful, unconstitutional amnesty plan, the Obama Administration appears to have already been issuing expanded work permits, in direct contradiction to what they told a federal judge previously in this litigation." (National Review, Mar. 5, 2015) He continued, "The circumstances behind this must be investigated, and the motion we seek would help us determine to what extent the Administration might have misrepresented the facts in this case." (Id.)

The approval of 100,000 expanded DACA applications may also be a violation of Judge Hanen's injunction. Judge Hanen's injunction prohibited the administration from implementing "any and all aspects or phases of the expansions (including any and all changes)" to DACA as well as "any and all aspects or phases" of DAPA. (See also IRLI.org, Feb. 20, 2015) The injunction also noted that "the DHS' website provides February 18, 2015 as the date it will begin accepting applications under DACA's new criteria..."

GOP Leadership Caves; Funds DHS without Defunding Amnesty

Last week, Republican leadership caved and the House of Representatives passed a Department of Homeland Security (DHS) appropriations bill that does not defund President Obama's amnesty programs. In a 257-167 vote, the House passed the Senate version of H.R. 240 with the support of all House Democrats and 75 House Republicans. Tellingly, Speaker John Boehner (R-OH) cast a vote for the bill — an extraordinary step because traditionally the House Speaker does not vote.

It appears that the strategy to pass the DHS funding bill with Democratic votes was orchestrated behind closed doors by Boehner and Minority Leader Nancy Pelosi (D-CA). After Congress passed a one-week extension of DHS funding just hours before funding was scheduled to run out, multiple inside-the-beltway publications reported that Boehner struck a deal with Pelosi to allow a vote on a bill that does not defund the executive amnesty. (See FAIR Legislative Update, Mar. 3, 2015) Although a Boehner spokesman denied the claim, the Speaker vaguely said the House will "follow regular order" while appearing on CBS's Face the Nation. (Id.)

Then, on Tuesday — just two working days after the one-week extension — the House utilized an obscure procedural rule in order to pass the Senate's version of DHS funding. Known as Rule XXII, it reads in part "When the stage of disagreement has been reached on a bill or resolution with House or Senate amendments, a motion to dispose of any amendment shall be privileged." (House Rule XXII) In practice this means that if the Senate refuses to go to conference committee with the House to resolve differences in their respective bills, any Member of Congress can force a vote on the Senate bill. Last Monday, the Senate officially refused to go to conference in a 47-43 vote, which required 60 votes to pass, triggering the applicability of Rule XXII.

Although Speaker Boehner claimed his hands were tied, House Republicans could have amended Rule XXII to prevent it from being used to pass DHS funding that fails to stop the executive amnesty. Before the vote, Rep. Steve King (R-IA) introduced a resolution that would have allowed only Majority Leader Kevin McCarthy (R-CA) to use Rule XXII for H.R. 240. In a press release King said, "A single clause in a rule we have the power to change is not an excuse to fund lawlessness. This is only a trap if we fail to act. Leadership's back is not against the wall unless they choose it to be." (King Press Release, Mar. 2, 2015) Indeed, Speaker Boehner took such a measure during the 2013 government shutdown debate to prevent House Democrats from utilizing Rule XXII to force a vote on a bill passed by the Democratic controlled Senate. (See National Journal, Mar. 2, 2015)

The Speaker defended his plan to abandon the defunding effort designed to stop the executive amnesty. In a closed-door meeting with the House GOP, Boehner said "With more active threats coming into the homeland, I don't believe [letting DHS funding expire is] an option." (The Hill, Mar. 3, 2015) "I am as outraged and frustrated as you at the lawless and unconstitutional actions of this president," Boehner insisted. (Id.) He continued, "I believe this decision — considering where we are — is the right one for this team, and the right one for this country." (Id.)

Yet, conservatives blasted Boehner for caving to Democrats. "I believe this is a sad day for America... If we aren't going to fight now, when are we going to fight?" declared Rep. Matt Salmon (R-AZ). (Id.) Similarly, Rep. Ron DeSantis (R-FL) said, "I hear we need to let the courts work their will to defend the Constitution, as if we don't have an independent obligation to do that." (Id.) True immigration reformer Rep. Lou Barletta (R-PA) added, "Requiring the funding of executive amnesty places illegal immigrants ahead of the national security concerns of the United States." (Barletta Press Release, Mar. 3, 2015)

Senator Sessions Grills USCIS on Amnesty Policies

Last Tuesday, true immigration reformer Sen. Jeff Sessions (R-AL) held his first hearing as Chairman of the Senate Judiciary Subcommittee on Immigration and the National Interest. The hearing, entitled "Oversight of U.S. Citizenship and Immigration Services, Ensuring Agency Priorities Comply with the Law," focused mainly on how USCIS is planning to implement the DACA and DAPA policies. (Judiciary.gov; Bloomberg Government Transcript, Mar. 3, 2015; for a description of extended DACA and DAPA, see FAIR Legislative Update, Nov. 24, 2014) The witnesses were three career civil servants at the agency: Joseph Moore, the Chief Financial Officer; Donald Neufeld, the Associate Director of Service Center Operations; and Dan Renaud, the Associate Director of the Field Operations Directorate. (Bloomberg Government Transcript, Mar. 4, 2015)

As chairman, Senator Sessions closely examined how USCIS has been adjudicating DACA applications as well as how it would adjudicate DAPA applications in the future. (Id.) He stressed the statements of Ken Palinkas, President of the National Citizenship and Immigration Services Council (the union that represents USCIS officers), who says adjudicators have been rubberstamping applications rather than conducting "diligent case review and investigation." (Id.) Mr. Palinkas, Sen. Sessions said, had revealed that USCIS will be using an "assembly line adjudication process" that "bypasses traditional in person investigative interviews." (Id.) That is, each adjudicator will only evaluate one section of each application, in order to speed up the process. (Id.)

Sessions called this assembly line processing of applications "dangerous" for several reasons. First, he said an adjudicator cannot properly evaluate an application by seeing a section in "isolation." (Id.) Sessions also pointed out that USCIS is not conducting in-person interviews with DACA and DAPA applicants, making adequate evaluation even less likely. (Id.) Vetting the applications, he demonstrated, will largely take place in the agency's facility in Crystal City by reading mailed in documentary evidence rather by interviewing witnesses to discover details about the applicants' background they failed to volunteer. (Id.)

Sessions noted that no aliens who obey the law are able to obtain a visa without an in person interview: only those who have broken the law get to escape this scrutiny. (Id.) In addition, he asked a number of probing questions about what kind of documentation the adjudicators will be looking at, demonstrating that applicants will not have to meet a high standard of proof to show they fulfill the programs' criteria. (Id.) Some examples of documents Sessions mentioned were rent receipts, W-2 forms, high school diplomas, affidavits, and birth certificates. (Id.) Members of the panel were vague about exactly what kind of documents would tend to be sufficient, with Mr. Neufeld saying that they "accept any evidence that anybody wishes to submit," and Mr. Renaud saying they "generally" accept copies. (Id.) The standard that the applicants have to meet with such documents, Mr. Renaud said, is only a "preponderance of the evidence," and the adjudicators determine if that standard is met using their "judgment" and "expertise honed over time." (Id.)

The committee also brought up evidence that inadequacy in USCIS's application procedures is already apparent. (Id.) Several senators mentioned that only the week before, an individual who allegedly obtained amnesty through the original DACA program, despite known gang affiliations, was charged with first degree murder of four people in Charlotte, North Carolina. (Id.; for more information, see Grassley Press Release, Feb. 27, 2015) Senator Thom Tillis (R-NC), in whose hometown the murders had occurred, pointed out that whatever background checks the government ran on this alien had failed to identify him as a threat. (Bloomberg Government Transcript, Mar. 4, 2015)

Another key question for the committee was how the agency will fund DACA and DAPA without congressional appropriation. Mr. Moore explained that USCIS, as a largely fee operated agency, has been given a permanent appropriation by Congress to immediately access its fee revenues. (Id.) He elaborated that the agency does not spend all of its revenues from fees each year, but keeps cash reserves of $600 million annually, and its total leftover "carry over balance" from the end of last year from its main fee account is $1 billion. (Id.) The agency's "legal counsel," Mr. Moore said, has assured him that it is legal to use this balance to process DACA and DAPA, which he confirmed would cost USCIS $324 to $484 million over the next three years. (Id.) Senator Cruz (R-TX) responded that Congress ought to fix this situation in the next appropriations cycle. (Id.) USCIS, he suggested, should operate like any other agency pursuant to appropriated funds rather than with a billion dollars essentially in its "own bank account." (Id.)

Another issue raised during the hearing was the possibility that many illegal aliens will obtain a path to citizenship through DACA and DAPA. (Id.) Senator Mike Lee (R-UT) explained that USCIS is using "advance parole" to give DACA and DAPA beneficiaries the chance to adjust their status to that of lawful permanent resident after going abroad. (Id.; for an explanation of how this process works, see FAIR Legislative Update, Feb. 24, 2015) Senator Lee noted that that the statutory authority for advance parole, Section 212(d)(5)(a) of the Immigration and Nationality Act, limits the government's power to give parole for "urgent humanitarian reasons or significant public benefit." (Bloomberg Government Transcript, Mar. 4, 2015) Yet, he said, USCIS has a form, I-131, which lists "interviews," or "conferences or meetings with clients," as valid reasons to obtain advance parole. (Id.) He asked if that did not seem to violate the statute. (Id.) In response, in an answer reminiscent of Mr. Moore's answer regarding the legality of using fees to process DACA and DAPA applicants, Mr. Renaud stated the panel did not have the "expertise," to answer but that such forms are reviewed by others for "legal sufficiency." (Id.)

Despite the panel's deferring to others on questions as to the inherent legality of the agency's actions, Mr. Renaud was willing to state for himself that the agency was obeying the preliminary injunction issued by a federal court in Texas blocking DAPA and extended DACA as unlawful. (Id.) Before the court issued the injunction, he stated, USCIS had leased a center in Crystal City for $7 million, and extended tentative job offers to 360 individuals. (Id.) However, they have now ceased implementing the program, put those job offers on hold, and the facility in Crystal City is empty. (Id.) Sen. Cruz pointed out that President Obama told reporters after the court ruling that "preparatory work" as "a big piece of the business" would continue. (Id.; see White House Press Release, Feb. 17, 2015) However, Mr. Renaud claimed he was "not aware" of any such "preparatory work" continuing. (Bloomberg Government Transcript, Mar. 4, 2015)

Pennsylvania Senate Passes Bill to Help Rid Fraud in Benefits Programs

The Pennsylvania Senate passed Senate Bill ("S.B.") 9 late last month, which would require state agencies to verify an applicant's citizenship or immigration status to confirm applicant eligibility for state public benefits. (PA Senate GOP, Feb. 24, 2015) Currently, both Pennsylvania law and federal law prohibit illegal aliens from receiving most state public benefits. (62 P.S. § 432; 43 P.S. § 802.3; 8 U.S.C. 1621) S.B. 9 will help prevent illegal aliens living in Pennsylvania from receiving taxpayer-funded services, such as state-administered welfare and unemployment compensation, illegally.

Specifically, S.B. 9 requires anyone applying for state public benefits in Pennsylvania to provide documentary evidence of their lawful presence in the United States. (S.B. 9) Additionally, applicants must sign an affidavit affirming their citizenship or immigration status. (Id.)Illegal aliens who falsely report their status in order to receive benefits will be subject to criminal penalties. (Id.)

Senator Patrick Stefano sponsored S.B. 9 after the state was forced to pay the federal government $48.8 million earlier this year for providing federal public benefits to illegal aliens in violation of federal law. (Hill, Jan. 16, 2015; PA Senate GOP, Feb. 24, 2015) "In these tough economic times, when revenues are scarce, it's important to ensure that our state's resources are dedicated to those who pay taxes and are here in this state legally," Stefano said. (PA Senate GOP, Feb. 24, 2015) "Pennsylvania citizens, including legal immigrants, who are struggling to make ends meet, should not have their hard-earned dollars go toward benefits for illegal immigrants." (Id.)

Illegal alien advocates, however, voiced their opposition the measure at a press conference last week and asked Governor Tom Wolf to veto S.B. 9. (CBS Philly, Mar. 5, 2015) Advocates from these groups claimed that there is "no evidence" that illegal aliens are obtaining benefits illegally and that the money needed to implement S.B. 9 could be better spent elsewhere. (Id.)

As of 2010, illegal immigration costs Pennsylvania taxpayers an estimated $1.39 billion a year, with almost 200,000 illegal aliens residing in the state. (FAIR Cost Study) Over $221 million a year of these costs is attributed to welfare given to illegal aliens and over $396 million is attributed to state and local administrative costs. (Id.)

S.B. 9 must next be approved by the House Committee on State Government. (S.B. 9 Status) The full House of Representatives must approve the bill before it can be sent to the Governor's desk for his signature.