Legislative Update: 3/28/2017 
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Legislative Update: 3/28/2017

Federal Judge UPHOLDS Travel Freeze

By: Robert Law

A federal judge in Virginia has refused to block the revised national security executive order, delivering an important win to the Trump administration. On Friday, Judge Anthony Trenga, from the Eastern District of Virginia, rejected a challenge to the travel freeze brought by Palestinian activist Linda Sarsour, who is represented by attorneys from the Council on American-Islamic Relations (CAIR). Unlike the previous challenges in Washington state, Hawaii, and Maryland, Judge Trenga properly applied the law—rather than making policy from the bench—and denied Ms. Sarsour’s motion for a temporary restraining order (TRO) against the travel freeze from countries that are hotbed for terrorism and the temporary freeze on all refugee admissions. (Sarsour v. Trump; see FAIR Legislative Update, Mar. 21, 2017) Although Trump’s Justice Department has not yet appealed the Hawaii ruling (which blocked both the travel freeze and the refugee freeze), it has appealed the Maryland ruling (only the travel freeze) and the Fourth Circuit Court of Appeals will hear arguments on May 8. (See Washington Examiner, Mar. 23, 2017)

In a 32 page opinion, Judge Trenga demonstrated the proper role of the judiciary while ruling that the plaintiffs are not likely to succeed on the merits of their statutory or Constitutional claims. The court correctly found that President Trump has the authority under the Immigration and Nationality Act (INA) to issue the executive order under Section 1182(f), rejecting the claim that Section 1152 prohibits the president from denying entry to a particular nationality. “The Court also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a). Under those sections, the President has unqualified authority to bar physical entry to the United States at the border,” the judge wrote. (Sarsour v. Trump) “There is nothing in the legislative scheme to suggest that Congress intended Section 1152 to restrict the exercise of the President’s unqualified authority under Section 1182(f) with respect to a completely distinct aspect of the immigration process.” (Id.) Using similar (proper) legal reasoning, Judge Trenga rejected the Establishment Clause and Equal Protection claims. (Id.)

Although the travel freeze is still blocked by the TROs imposed by the judges in Hawaii and Maryland, this favorable ruling has created a split in the courts making it highly likely the Supreme Court will hear the case at some point. The Trump administration praised the victory, with a Justice Department spokeswoman saying they are “pleased with the ruling.” (The Hill, Mar. 24, 2017) “As the Court correctly explains, the President’s Executive Order falls well within his authority to safeguard the nation’s security,” Sarah Isgur Flores said. (Id.)

Stay tuned to FAIR and IRLI as details emerge…



USCIS Unveils EB-5 Regional Center Audit Compliance Program

By: RJ Hauman

Last week, U.S. Citizenship and Immigration Services (USCIS) launched its EB-5 regional center audit compliance program, placing the embattled investor visa program under heightened scrutiny while Congress contemplates reforms. (National Law Review, Mar. 24, 2017; see USCIS Fact Sheet) Compliance audits conducted under the new program will involve on-site audit teams examining documents and filings, as well as interviewing personnel. (Law360, Mar. 22, 2017) According to USCIS, the regional center audits will enhance the EB-5 program’s “integrity” and serve as another way to verify information submitted in EB-5 petitions. (Id.) “These audits will verify compliance with applicable laws and authorities to ensure continued eligibility for the regional center designation,” USCIS said in a statement. (Id.) However, the USCIS representative went on to note that the audits are strictly voluntary and regional centers will be provided with advance notice, raising questions about how effective they will be in detecting and preventing fraud. (Id.)

The EB-5 visa program, which was first created by Congress in 1990, allows foreigners to obtain green cards for themselves and their immediate family members by investing in a USCIS-approved U.S. business that "creates or preserves" 10 full-time jobs. (INA § 203(b)(5); 8 U.S.C. § 1153(b)(5)) However, participation in the program was originally low, so in 1993, Congress created the "Immigrant Investor Pilot Program," setting aside at least 3,000 visas (out of 10,000 for the whole EB-5 program) for immigrants who invest within designated regional centers. The regional centers are defined by USCIS as "any economic entity, public or private, which is involved with the promotion of economic growth." (See Brookings-Rockefeller Report, February 2014 at p. 4) The regional center program was promoted on the claim that it is supposed to benefit depressed or rural areas so participation in this program only required a $500,000 investment compared to $1 million for the original EB-5 program.

FAIR has long opposed the EB-5 program, arguing that the U.S. should not be in the business of selling visas. (See FAIR’s Why Congress Must Let EB-5 Regional Centers Expire, Sept. 29, 2015) FAIR is particularly critical of the looser requirements for the regional center program which are routinely exploited and remain unaddressed. Rampant fraud and abuse uncovered at countless regional center sites—including a high-profile case at a Vermont ski resort—are predictable outcomes of a deeply flawed program that cannot be fixed by voluntary audits. (See FAIR Legislative Update, Apr. 26, 2017) Congress temporarily extended the regional center program through April 28 in a stopgap spending bill last December. Considering that the program is beyond reform, FAIR calls upon Congress to let the program expire by refusing to fund it in a new spending bill next month. 



Americans Worry a “Great Deal” About Illegal Immigration

By Shari Rendall

A recent Gallup poll shows that a significant number of Americans are concerned with illegal immigration, reflecting one of President Trump’s key campaign issues. According to the poll, 59 percent of Americans worry “a great deal” about illegal immigration. (Gallup Poll, Mar. 20, 2017) The survey also found that 79 percent of Republicans consider illegal immigration a critical issue. (Id.) President Trump has already prioritized the issue early in his administration, issuing executive orders on border security and immigration enforcement. (See FAIR Legislative Update, Jan. 31, 2017)

Significantly, the survey also revealed that Americans were especially concerned with illegal immigration during the time Presidents George W. Bush and Barack Obama were promoting amnesty and gutting enforcement. (See Gallup Poll, Mar. 20, 2017) Between 2006 and 2011, 68 percent of Americans listed illegal immigration as a top concern. (Id.) This increased concern stemmed from several factors: 1) significant increases in illegal immigration between 2000 and 2005; 2) the Bush-McCain-Kennedy amnesty bill; and 3) the loss of 8.4 million jobs during the recession. (See Amnesty and the American Worker Report, March 2010) Americans worry about potential amnesty programs – recollecting that the 1986 amnesty failed to provide the promised immigration enforcement measures, instead leading to an increase in illegal immigration. (See 7 Principles of True Comprehensive Immigration Reform)

In addition, the Gallup poll concluded that the issue of illegal immigration has become more politicized recently. (See Gallup Poll, Mar. 20, 2017) Historically, Republicans and Democrats have felt similarly about illegal immigration. (Id.) At the beginning of the 21st century, there was only a two-point gap between the parties. (Id.) Currently, there is a 31 percent gap on illegal immigration with Republicans prioritizing border security (building a wall on the southwest border and deporting illegal aliens) and Democrats opposing. (Id.)

Finally, the Gallup poll found that over the past six years, 67 percent of Hispanics worry “a great deal” about illegal immigration, worrying significantly more than whites (59 percent) and blacks (57 percent). (Id.) According to FAIR President Dan Stein, Hispanics are more likely “harmed by excessive immigration and unchecked illegal immigration.” (See FAIR Exit Polling Press Release, Nov. 17, 2016) Low-skilled immigrants compete for the same jobs as illegal aliens. (See Pew Research Center, Mar. 16, 2017)

The poll, taken March 1-5, 2017, surveyed 1018 adults.



Two Illegal Aliens Charged with Raping 14-Year-Old Maryland Girl, Legislature Passes Sanctuary Bill Anyway

By State & Local Government Relations

Two Maryland high school students, who recently entered the country illegally, were charged last Thursday with brutally raping a 14-year-old girl in a high school bathroom. (MRC TV, Mar. 20, 2017) Despite this horrific atrocity, the Maryland House of Delegates passed a measure, House Bill (HB) 1362, on March 20 to shield illegal aliens who commit crimes from immigration enforcement by prohibiting law enforcement from cooperating with federal immigration officials. (Washington Examiner, Mar. 21, 2017) The measure also grants state and local government officials immunity from any harm caused to residents as a result of their refusal to communicate immigration status information with federal officials. (HB 1362)

On March 16, 18-year-old Henry Sanchez and 17-year-old Jose Montano allegedly lured the girl into a Rockville High School bathroom and took turns raping the girl after she refused to their advances. (Fox News, Mar. 21, 2017) Both suspects were arrested at the school that day after the victim reported the incident to a faculty member. (Id.) Sanchez and Montano were charged as adults with first-degree rape and two counts of first-degree sexual assault charges. (Id.)

Multiple news reports indicate both Sanchez and Montano entered the country illegally within the past year as part of the influx of unaccompanied minors and family units from Central America and at least Sanchez had an outstanding order for removal. (Id.; Fox 5, Mar. 20, 2017) Additionally, both Sanchez and Montano were placed in the ninth grade at Rockville High School, despite being about four years older than the average ninth grader. (Fox 5, Mar. 20, 2017) “We looked at all the information from Thursday and we handed it over to the police immediately. At this point, it is their investigation,” commented the school superintendent. (Id.)

Rockville High School is located in Montgomery County, Maryland, near Washington, D.C. According to the federal government, 3,286 illegal aliens have been placed with sponsors offering foster homes in Montgomery County since fiscal year 2014, with over 153,000 placed nationwide. (Office of Refugee Resettlement) The border surge began shortly after the Obama administration created its deferred action for childhood arrivals (DACA) program, which offered illegal aliens who had entered the country as minors work authorization and temporary deferment of removal if they met certain criteria. The incident also comes just months after a 15-year-old girl was raped by an illegal alien in Washington, D.C. (WJLA, Feb. 13, 2017)

Governor Larry Hogan (R) released a statement in response to the House of Delegates’ dangerous sanctuary bill. (ABC 2, Mar. 21, 2017) “The Maryland House of Delegates tonight passed an outrageously irresponsible bill that will make Maryland a sanctuary state and endanger our citizens,” stated Hogan. (Id.) “This legislation would interfere with our state and local law enforcement's ability to cooperate with federal law enforcement authorities. I will veto this dangerously misguided legislation the moment that it reaches my desk,” he added. (Id.) The Maryland Senate must approve the legislation before it can be sent to Governor Hogan’s desk.



ICE Reports on Dangers Posed by Declined Detainers, Hundreds of Criminal Aliens Released by Law Enforcement

By State & Local Government Relations

The U.S. Department of Homeland Security (DHS) issued the U.S. Immigration and Customs Enforcement (ICE) Declined Detainer Outcome Report last week, reporting the number of cases between January 28 and February 3, 2017 in which state or local law enforcement refused to comply with a detainer. A detainer is a request from ICE to a state or local law enforcement agency to maintain custody of an alien for no more than 48 hours so that federal officials may assume custody for the purpose of removal from the United States. (ICE Fact Sheet, Mar. 20, 2017) Detainers may also request state and local law enforcement simply notify ICE an alien is about to be released. (Id.) Federal officers only issue detainers for aliens arrested on criminal charges for whom officials have probable cause to believe that they are removable from the United States. (Id.)

The report, required by President Trump’s January 25 executive order, Enhancing Public Safety in the Interior of the United States, noted that state and local law enforcement declined a total of 206 detainers between January 28 and February 3, 2017. (Declined Detainer Report, Mar. 20, 2017) ICE’s report also lists the crime for which each alien released despite having a detainer issued had been charged, including homicide, sexual offenses against adults and children, identity theft, domestic violence, and kidnapping charges. (Id.)

“When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission,” said Acting ICE Director Thomas Homan in a press release. (ICE Press Release, Mar. 20, 2017) “Our goal is to build cooperative, respectful relationships with our law enforcement partners. We will continue collaborating with them to help ensure that illegal aliens who may pose a threat to our communities are not released onto the streets to potentially harm individuals living within our communities,” Homan added. (Id.)

The report detailed specifically that Travis County, Texas refused to comply with more ICE detainers than anywhere in the country pursuant to Sheriff Sally Hernandez’s sanctuary policy. In the single week covered by ICE’s report, Travis County law enforcement refused to honor 142 detainers for aliens with criminal charges, or nearly 70 percent of declined detainers nationwide. Texas Governor Greg Abbott released a statement in response to the report’s findings. (Texas Tribune, Mar. 20, 2017) Abbott called the high number of declined detainers “deeply disturbing” and hoped it would encourage lawmakers in Texas to enact a measure to ban sanctuary policies in the state. (Abbott Press Release, Mar. 20, 2017)

Nonetheless, several sheriffs who support immigration enforcement have suggested that the report contains wrong or misleading information about detainer compliance in their jurisdictions. (Pennlive, Mar. 21, 2017) Most anti-detainer or sanctuary policies are put in place by the law enforcement agencies themselves, bullied by the ACLU and others in the illegal alien lobby into believing they must follow their anti-border agenda or risk being sued.