Legislative Update: 3/22/2016
Obama's Cuba Trip Should Lead to Cuban Adjustment Act Repeal
President Obama landed in Cuba on Sunday, making him the first sitting president to visit the country in 88 years. (Washington Post, Mar. 20, 2016) The two day visit is the latest step in the administration's ongoing efforts to "normalize" diplomatic relations with the communist island nation. The White House previously announced that President Obama will meet with Cuban President Raul Castro at some point during his stay. (See FAIR Legislative Update, Feb. 23, 2016)
The President's historic visit indicates substantive change in our policy toward Cuba that should result in the repeal of our outdated immigration policies that afford special privileges to Cuban nationals.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 U.S. are allowed to remain and can adjust to permanent resident status (green card) after one year. Despite taking several steps to "normalize" relations over the last year, President Obama continues to insist that he will not change the migratory status of Cubans in the near future.
However, efforts are underway on Capitol Hill to change that. Led by Rep. Paul Gosar (R-AZ), his bill repeals the Cuban Adjustment Act, ensuring that Cuban nationals are treated the same as citizens of every other country. (See 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)
House Committees Pass Immigration Bills
The House Ways and Means Committee passed by a 21-15 vote key legislation by Rep. Sam Johnson (R-TX) last Wednesday that would close a loophole under current tax law that allows illegal aliens to collect the Additional Child Tax Credit (ACTC). (CQ News, Mar. 16, 2016)
The ACTC is a refundable credit that allows individuals with three or more children to reduce their federal income tax by up to $1,000 for each child who meets certain criteria. The ACTC is attractive to illegal aliens because a valid social security number (which illegal aliens lack) is not required to claim the credit. Instead, federal tax law allows a filer to claim the credit using an Individual Taxpayer Identification Number (ITIN). The Internal Revenue Service freely issues ITINs to illegal aliens so they can comply with federal tax law (even though they are violating immigration laws).
According to the Treasury Department Inspector General, the Internal Revenue Service paid out at least $5.9 billion in improper ACTC payments in Fiscal Year 2013, or about 25 to 30 percent of the total payments. (Politico, Dec. 9, 2014) An overwhelming amount of the fraudulent payments go to illegal aliens. For example, an Indianapolis television station uncovered in April 2012 that four illegal aliens alone, sharing a small trailer received $29,608 from the IRS by claiming tax credits for 20 nieces and nephews who live in Mexico. (13 WTHR, Apr. 26, 2012) Investigators identified one address in Atlanta where 23,994 ITIN-related tax refunds were sent, including 8,393 refunds deposited into a single bank account. (Washington Times, Oct. 14, 2014) Further, the Washington Times found the use of the tax credit by illegal aliens jumped from 796,000 in 2005 to 1.5 million in 2008 and 2.3 million in 2010. (Id.)
The ACTC is part of the Ways and Means Committee "savers' package" that will likely move to the floor as part of a single measure, or "sidecar," carrying spending cuts and revenue-raising measures reported by several committees. (CQ News, Mar. 16, 2016) While passage in the House seems likely, the bill's prospects in the Senate are uncertain.
Additionally, in a 18-9 party line vote, the House Judiciary Committee amended and passed Rep. Raul Labrador's (R-ID) H.R. 4731, the "Refugee Program Integrity Restoration Act of 2016." This important bill restores Congressional authority over refugee admissions, establishes an annual cap of 60,000 refugee admissions, and prevents the Department of Homeland Security from unilaterally waiving most grounds of inadmissibility when determining eligibility for refugee status. (FAIR Summary of H.R. 4731)
The Judiciary Committee approved two amendments that improved the bill. In a 15-7 vote, the committee adopted true immigration reformer Rep. Steve King's (R-IA) amendment to let states hold ballot initiatives or referendums to block refugee resettlement. (King Amdt. to H.R. 4731) Similarly, in a 17-8 vote the committee incorporated Rep. Ted Poe's (R-TX) amendment to allow states to opt out of receiving refugees if DHS does not provide at least 21 days advanced notice of the intended resettlement and certify that the alien is not a security risk. (Poe Amdt. to H.R. 4731)
Visa Security Hearing Yields More Questions Than Answers
Last Tuesday, the Senate Homeland Security and Governmental Affairs Committee conducted a hearing on the security of the nation's visa programs. (Video of the hearing available here) Senators took aim at a number of enforcement and efficiency issues within U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE), including the following:
The San Bernardino terror attacks
Senator Ron Johnson (R-WI), the committee's chairman, revealed that ICE Homeland Security Investigations (HSI) agents were prevented from taking an accomplice in the December 2, 2015 San Bernardino terror attacks into custody. (Federal Times, Mar. 16, 2016)
Enrique Marquez — the neighbor of attackers Syed Farook and Tashfeen Malik and purchaser of the weapons used to gun down 14 people — had an immigration hearing the day after the attacks at a local USCIS office. (Id.) When the Federal Bureau of Investigation (FBI) learned of Marquez's whereabouts, they asked ICE to intercept Marquez at the USCIS office. (Id.) However, when HSI agents arrived, they were prevented from entering the office and denied access to Marquez's immigration file. (Id.) Marquez left the appointment, but was later arrested. (Id.)
Johnson said he was concerned about the interagency communication breakdowns that prevented the HSI team from apprehending Marquez. (Id.) "We had a team armed up and potentially dealing with a terrorist. The agent in charge of USCIS wouldn't allow HSI into the building," he said. (Id.) "That's not indicating a great deal of cooperation between two different agencies under DHS, whose supposed top concern is the security of this nation." (Id.) USCIS Director León Rodríguez said the situation had developed so quickly that a local USCIS official sought guidance from higher up, which led to the delay. (Id.) "Do we need to look at our protocols to make sure those misunderstandings don't occur? That may well be something we need to do," he said. (Id.)
The death of 21-year-old Sarah Root
Senator Ben Sasse (R-NE) grilled ICE Director Sarah Saldaña as to why ICE agents failed to detain Eswin Mejia, an illegal alien who killed 21-year-old Sarah Root in a drunken street race in Omaha on January 31. (Daily Caller, Mar. 16, 2016)
Mejia, who had twice previously failed to appear in court on state charges, was charged with felony motor vehicle homicide on February 3, three days after the crash. (Grassley and Goodlatte Letter to DHS, Mar. 2, 2016) Local authorities reportedly contacted ICE numerous times to notify the agency of Mejia's elevated flight risk and requested that ICE take custody of him, but ICE denied their requests. (Id.) Mejia later posted bond and is now a fugitive from justice. (Id.)
"We [tried to detain Mejia], but I believe there was a matter of hours between the time that we were contacted and the actual release," Saldaña testified. (Omaha.com, Mar. 16, 2016) "It is very hard for us to get to every inquiry that is made by law enforcement, and unfortunately it had a horrible consequence here. But we try very hard to respond as quickly as possible; we just can't get to every site within a matter of hours." (Id.)
Saldaña's assertion that the failure to detain Mejia was operational in nature directly contradicts an earlier statement by an ICE spokesman. (Id.) When asked why ICE declined repeated requests to detain Mejia, the spokesman stated that the agency did not do so because his arrest for felony vehicular homicide "did not meet ICE's enforcement priorities." (Id.) These narrow enforcement priorities were laid out in a November 2014 policy memo issued by Department of Homeland Security (DHS) Secretary Jeh Johnson. (Id.; see DHS Enforcement Priorities Memo) The memo places a priority on the apprehension, detention, and removal of illegal aliens with felony records, significant misdemeanor convictions, gang ties, and those who pose terrorist threats. (See FAIR Legislative Update, Nov. 24, 2014) However, ICE may refuse to take custody of illegal aliens from state and local law enforcement when such aliens exhibit criminal behavior, but have not been convicted of a felony and most misdemeanors. (Id.)
Even though her agency will likely continue to adhere to policies that jeopardize its law enforcement mission and guarantee the release of criminal aliens, Saldaña pledged to "learn" from the incident. (Omaha.com, Mar. 16, 2016) "Every situation we have that results in something as horrific as this, we always try to learn from it, and I'll be following up to look at the specific individuals involved, how the judgment was formed, and why that was done," she said. (Id.) However, Sasse was not satisfied and asked Saldaña to provide further clarification in writing. (Id.) "After today's hearing, we are not any closer to a clear account of what went wrong," he said. (Id.) "I am disheartened by ICE's excuses and evolving explanations. ICE has promised to provide a full accounting of what happened by March 25th. I look forward to their response." (Id.)
House Votes To File Amicus Brief In Landmark Immigration Case
Last Thursday, the House voted 234 to 186 on a resolution to file an amicus brief in the United States v. Texas Supreme Court case challenging President Obama's authority to grant executive amnesty to millions of illegal aliens without congressional approval. (Roll Call Vote #129; see Politico, Mar. 17, 2016)
The high court agreed to hear the case in January and will decide whether to uphold the injunction blocking the DAPA and expanded DACA amnesty programs until the case is litigated on the merits. (FAIR Legislative Update, Jan. 19, 2016) The Court is expected to hear arguments in April and issue a ruling in June — just months before the 2016 presidential election. (Id.)
President Barack Obama nominated Judge Merrick Garland to the Supreme Court last Wednesday, in a move meant to test the resolve of Senate Republicans who have vowed to block any replacement for the late Justice Antonin Scalia until a new president takes office. (CNN, Mar. 16, 2016) Garland, 63, is currently the chief judge of the U.S. Court of Appeals for the D.C. Circuit and was confirmed by the Senate 76-23 in 1997. (Id.; see Senate Roll Call Vote #34) Five Republican Senators who voted to reject his confirmation, including key nomination players Majority Leader Mitch McConnell (R-KY) and Judiciary Committee Chairman Chuck Grassley (R-IA), are still in office.
While Garland has not issued any noteworthy rulings on cases involving immigration, FAIR will continue to examine his record in the event Senate Republican leaders break their pledge to forgo nomination hearings.
Immigration Legislation in the States
State legislatures around the country are making progress to ensure the enforcement of federal immigration law is not thwarted by state or local laws, ordinances, or policies. This week, both the Georgia General Assembly and Mississippi State Legislature advanced legislation to support enforcement efforts and uphold the Rule of Law.
Having already passed the Senate weeks earlier, the Georgia House of Representatives passed Senate Bill (SB) 269 on March 15 to ensure that localities do not implement sanctuary policies that impede federal enforcement efforts in violation of state law. (Augusta Chronicle, Mar. 16, 2016) SB 269 strengthens existing law by conditioning the receipt of state funding on local governments complying with state law forbidding sanctuary policies, requiring the use of E-Verify, and confirming they only give public benefits to those lawfully in the country. (SB 269 at §§ 1-2) The Georgia House of Representatives passed SB 269 by a 118-52 vote. (Augusta Chronicle, Mar. 16, 2016) The Senate must now either agree to amendments made by the House Judiciary Committee or negotiate the differences in a conference committee before the legislature adjourns March 24.
The Mississippi State Legislature advanced two bills, SB 2306 and House (HB) Bill 1296 to prohibit sanctuary policies and strengthen the state's driver's license law. The Senate passed SB 2306 on March 3 to strengthen immigration enforcement by prohibiting any official or governing authority of a municipality of Mississippi from limiting or restricting the enforcement of immigration law to less than the full extent permitted by federal law. (Jackson Free Press, Mar. 11, 2016) SB 2306 also requires law enforcement officers to fully honor any detainer request placed by federal immigration officials upon a person who is not legally present in the United States. (SB 2306) Law enforcement officers will also be required to notify the United States Immigration and Customs Enforcement (ICE) or the United States Customs and Border Protection (CBP) immediately upon release of custody of an illegal alien convicted of a violation of state or local law. (Id.) The Senate approved SB 2306 by a 36 to 14 vote. (Id.) The House Committee on Judiciary must approve the bill next before it can be considered by the full House of Representatives.
HB 1296, however, requires that all non-citizen applicants for driver's licenses or identification cards have their immigration status verified using the Systematic Alien Verification Enlistment (SAVE) program. (HB 1296 at § 5(d)) SAVE is a federally operated program that helps federal, state and local benefit-issuing agencies determine the immigration status of benefit applicants so only those eligible to benefits may receive them. (USCIS) Importantly, HB 1296 also makes a common sense amendment to the state's driver's licenses law by requiring non-citizen driver's licenses to expire on the date that the applicant's lawful status in the United States expires, if their lawful status in the United States expires before a normal driver's license term of validity. (Id. at § 5(b)) HB 1296 passed the Mississippi House of Representatives in February and must be approved by the full Senate before it can be sent to Governor Phil Bryant's desk for signature.
The Iowa House of Representatives failed to approve House File (HF) 2276 before the Legislature's March 11 deadline. HF 2276 would have prohibited the state and its localities from enacting any ordinance, policy, or procedure that limits or restricts enforcement of federal immigration law. (HF 2276 at §§ 2-3) The bill would have also prohibited officials from enacting policies that limit the gathering or sharing of immigration status information between law enforcement and federal officials. (Id.)
Florida HB 675, an anti-sanctuary measure that passed the Florida House of Representatives overwhelmingly in February, by an 80-38 vote, was stalled in the Florida Senate Judiciary Committee and never received a vote in the Senate. News reports indicate that Senate Judiciary Committee Chairman Miguel Diaz de la Portilla (R-40) refused to take up any immigration enforcement bills this session, despite widespread support for such measures. (Bradenton Herold, Feb. 10, 2016) "None of the immigration bills are going to be heard," stated Senator Diaz de la Portilla. (Id.) "So those are off the table as far as the judiciary committee is concerned." (Id.)
The Wisconsin State Legislature also failed to approve Assembly Bill (AB) 450, that would have also banned 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) AB 450 would have also prohibited local governments from prohibiting law enforcement from cooperating with federal immigration officials on immigration enforcement matters and subjected certain state funds to compliance with the measure. (Id.; Id. at § 3)