Legislative Update: 4/14/2015
Last Tuesday, U.S. District Judge Andrew Hanen denied the Administration's request to lift his preliminary injunction on DAPA and extended DACA. He then granted the Plaintiff States' request for discovery to investigate the Administration's misrepresentations regarding the implementation of the President's executive amnesty. (Order Denying Stay, Apr. 7, 2015; Order Granting Discovery, Apr. 7, 2015) The States had sought early discovery upon learning the Administration had already approved over 100,000 extended DACA applications after assuring Judge Hanen no part of the President's November amnesty programs would be implemented until February 18. (SeeFAIR Legislative Update, Mar. 10, 2015; Order Granting Discovery, Apr. 7, 2015)
In his ruling, Judge Hanen explained that not only was his initial injunction of DAPA and the extended DACA program correct, but his reasoning had been strengthened by developments after the ruling. (Order Denying Stay, Apr. 7, 2015) His opinion showed that both President Obama and the Administration, in court and in public statements, had undermined their own contentions that: 1) the states had no standing to challenge his programs in court, 2) that the programs themselves were lawful, and 3) that the federal government was harmed by the injunction. (Id.)
The judge pointed out that one of the reasons he ruled that the states had standing to sue was that he had found that the federal government was "abdicating" its statutory duties. (Id. at 7) This finding, the Judge explained, the President confirmed when he said that Department of Homeland Security (DHS) officials who do not follow his directives will face "consequences." (Id. at 5-7; see FAIR Legislative Update, Mar. 3, 2015) The Judge reasoned, "the Chief Executive has ordered that the laws requiring removal of illegal immigrants that conflict with [the 2014 executive amnesty] are not to be enforced, and that anyone who attempts to do so will be punished." (Order Denying Stay at 6, Apr. 7, 2015) That, he continued, makes the President's directive, not "merely ineffective enforcement," but "total non-enforcement" amounting to abdication. (Id.)
Secondly, the Judge found, the President's comments bolster the merits of his ruling that the amnesty violates the Administrative Procedures Act (APA). (Id. at 8-9) The President's warning to DHS employees should "extinguish" any doubts that the directive leaves no discretion to agency officials, he found. (Id.) The lack of discretion confirms that the policy is a "legislative" change, not a "general guidance," and must follow the procedures under the APA for substantive rules. (Id.; see FAIR Legislative Update, Mar. 3, 2015)
Judge Hanen also found the Administration's arguments actually undermined its position. (Order Denying Stay at 13, Apr. 7, 2015) The federal government argued that DAPA would help DHS because, if its agents encountered DAPA recipients, they could present their documents showing that they were low priority. (Id.) The agents would then simply "take no action," regarding those individuals, which, presumably, would allow them more time to secure the border. (Id.) But, as Judge Hanen pointed out, the government conceded that it did not need DAPA in order to investigate illegal aliens and designate them as a low-priority for enforcement. (Id.) Indeed, he explained, the Administration could designate aliens as low-priority, and give them documentation reflecting that designation without granting them "legal status" and "other benefits." (Id.) Yet the Administration admitted that more aliens would apply for the program if DHS added "incentives." (Id.) While the "wisdom and legality of incentivizing illegal immigrants to remain in the country illegally" might be an issue at trial, the judge ruled, the government had clearly admitted it has a "workable and legal alternative" to the DAPA program. (Id.) Thus, he found, it could point to no present harm that the injunction was causing in order to justify lifting it until the end of trial. (Id.)
The Judge also pointed out that Administration's arguments in this case are inconsistent with its positions in other cases. (Order Denying Stay at 11, Apr. 7, 2015) He noted that the Administration asked that the injunction be confined to Texas, even though it had previously argued, both before the Ninth Circuit and the Supreme Court, that immigration laws should be uniform. (Id. at 11-12; see FAIR Legislative Update, Mar. 3, 2015) The fact that the Administration now argues one immigration scheme should apply to Texas and a different one to the rest of the states is "tantamount to conceding [its past arguments] were frivolous," Judge Hanen said.
But Judge Hanen delivered his toughest rebuke of the Administration in his second order granting the States early discovery to understand how its misrepresentations to the court had come about. (Order Granting Discovery, Apr. 7, 2015; see FAIR Legislative Update, Mar. 17, 2015) In this order, the Judge explained that the Administration's counsel, "whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients" had "misrepresented the facts." (Order Granting Discovery at 6, Apr. 7, 2015) Due to this deception, both the judge and the States falsely believed no changes to the law would occur until February 18. (Id. at 7-8) Furthermore, both the judge and the States relied on that belief— neither attempted to enjoin the federal government's actions prior to February 18. (Id.) To further compound the lack of "candor," Judge Hanen noted, counsel continued to hide the truth for some time even while asking him to reconsider his ruling. (Id. at 8- 9) Such actions, he stated, violate attorney's professional rules of conduct and are "unacceptable" when an attorney knows that both the Court and the other side are relying on "complete frankness." (Id. at 10)
However, while he noted that the government's behavior constituted "misconduct," Judge Hanen decided to wait to order measures that would constitute "an appropriate remedy or sanction" until he knew more. (Id. at 10-11) He noted that in an ordinary case, such misconduct could well cause a judge to essentially end the entire case at this point and allow the States to win by default. (Id. at 10) However, because of the "national significance" of the issues at stake, he would not do so because he believed the full merits of the case had to be considered. (Id.) But, he warned, failing to order a sanction immediately did not leave the court "impotent." (Id. at 11) Before deciding, he would allow the States to conduct a targeted investigation into the matter in order to discover "the extent" that "remedial action or sanctions are appropriate, if at all." (Id.) He therefore ordered the federal government, by April 21, to provide a list of all people who knew, and when they knew, about the March advisory by the Administration that informed the court about the 100,000 extended DACA grants and its subject matter. (Id. at 11-12) He also ordered the government to produce all documentation, including its metadata, regarding the advisory and its subject matter. (Id.)
The day after the ruling a spokeswoman for the Department of Justice issued a statement denying that the Department had misled the court, saying "[w]e emphatically disagree with the district court's order regarding the government's statements." (Politico, Apr. 8, 2015)
Third Circuit Creates Path to Citizenship for Illegal Alien Religious Workers
Last week, the federal Third Circuit Court of Appeals ruled that illegal aliens are eligible for religious worker visas, which puts them on a path to citizenship.
Under the Immigration and Nationality Act (INA), aliens in religious occupations are eligible for legal permanent resident status through the employment-based fourth-preference green card classification. (INA § 203(b)(4); INA § 101(a)(27)(C)) Among the statutory eligibility criteria, the INA requires that the alien "has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period...." (INA § 101(a)(27)(C)(iii)) By regulation, USCIS included language that the applicant has been working for the past two years with "lawful immigration status in the United States." (8 C.F.R. § 204.5(m)) There is an annual cap of 5,000 special immigrant religious worker visas, though alien ministers are exempt. (INA § 203(b)(4))
In the case before the Third Circuit, an illegal alien sued the Department of Homeland Security (DHS) because USCIS repeatedly denied his petition for a special immigrant religious worker visa. (Alencar v. Johnson, No. 13-4434) Carlos Alencar, a Brazilian national, lawfully entered the U.S. on a tourist visa in June 1995 but overstayed his visa, remaining unlawfully in the U.S. since December 1995. (Id.) Alencar then applied for a special immigrant religious worker visa several times since 1997 but USCIS rejected each application because Alencar is an illegal alien. (Id.) Despite his unlawful immigration status, Alencar has worked as a senior pastor for the Shalom Pentecostal Church since 1998. (Id.)
Remarkably, the Third Circuit struck down the USCIS regulatory requirement that religious work be performed while the alien is "in lawful immigration status," finding that the requirement exceeds the agency's powers and is contrary to congressional intent. "By its plain terms... the INA authorizes an alien who engaged in religious work continuously for the two years preceding the visa application and who meets the other statutory criteria to qualify for an I-360 visa as a special immigrant religious worker," the court held. (Id.) "As the statute is clear and unambiguous and the regulation is inconsistent with the statute, the regulation is ultra vires [beyond the powers]." (Id.)
However, the court's holding is in direct conflict with the Congressional intent behind the INA. Specifically, INA Section 274A makes it unlawful to employ illegal aliens. (INA § 274A(a)) This statute demonstrates clear congressional intent that only aliens with lawful status be permitted to work in the U.S. Therefore, it is unnecessarily redundant for the special immigrant religious worker visa statute to explicitly deny illegal aliens from eligibility because INA Section 274A already addresses that issue. If upheld, the court's ruling could create a major loophole for illegal aliens to receive green cards and eventually citizenship despite their unlawful status.
Poll: Voters Overwhelming Support Immigration Enforcement
A new Rasmussen Reports poll shows that likely voters overwhelming support immigration enforcement over President Obama's non-enforcement policies. The survey of 1,000 likely voters, conducted April 1-2, found that 62% believe the Obama Administration is "not aggressive enough" in deporting illegal aliens. (Rasmussen Reports Poll, Apr. 6, 2015) This is up from 56% in November (right after the election) and from 52% last April. (See Rasmussen Reports Poll, Nov. 18, 2014; Rasmussen Reports Poll, Apr. 30, 2014) By comparison, just 15% of likely voters in the recent poll believe "the number of deportations [is] about right" and 16% think the government is "too aggressive" in deporting illegal aliens. (Rasmussen Reports Poll, Apr. 6, 2015)
The Rasmussen poll also demonstrates that voters clearly oppose President Obama's executive amnesty. One aspect of the President's sweeping November unilateral action was granting amnesty to the illegal alien parents of U.S. citizen and legal permanent resident (green card) children, a program known as Deferred Action for Parents of Americans (DAPA). (See FAIR Legislative Update, Nov. 24, 2014) Yet, a majority (51%) does not believe illegal aliens with American-born children should be "exempt from deportation" compared to 32% who believe they should be allowed to stay in the country. (Rasmussen Reports Poll, Apr. 6, 2015) This is a noticeable shift from November when 38% thought they should be exempt from deportation compared to 42% who did not. (Rasmussen Reports Poll, Nov. 18, 2014)
Additionally, respondents said they want to deny benefits to illegal aliens. By a 54%-38% margin, voters oppose "birthright citizenship" — the practice of automatically granting U.S. citizenship to anyone born in the United States regardless of the parents' immigration status. (Rasmussen Reports Poll, Apr. 6, 2015) Also, by an 83%-12% margin, voters believe individuals should "be required to prove they are legally allowed to be in the United States" before receiving local, state, or Federal government benefits. (Id.) Heritage Foundation's Robert Rector calculates that amnestied illegal aliens would receive trillions of dollars in taxpayer benefits over their lifetimes. (SeeFAIR Legislative Update, Mar. 24, 2015)
The Rasmussen poll results are unsurprising considering voters overwhelmingly rejected President Obama's immigration policies on Election Day 2014.
Army Will Triple Size of Program Offering Military Amnesty by Next Year
Last week, the military announced it will expand the Military Accessions Vital to the National Interest (MAVNI) program from 1,500 recruits a year to 3,000 by the end of this fiscal year, and 5,000 a year by fiscal year 2016. (Wall Street Journal, Apr. 8, 2015)
MAVNI itself is a limited program that provides legal, temporary aliens to enlist in the military and thus be immediately eligible for a fast track to citizenship, if they have health care backgrounds or certain language skills. (See FAIR Legislative Update, Sept. 30, 2014) Generally, only citizens and green card holders may enlist in the U.S. military. (Id.) However, the Bush Administration launched MAVNI in June 2008 by exploiting a provision in federal law that allows the Secretary of Defense to approve the enlistment of individuals who are otherwise not qualified to enlist if "such enlistment is vital to the national interest." (Id.; see 10 U.S.C. § 504(b)(2))
Last June, the Administration announced that it would open the program to DACA recipients, and it began to do so in September. (See FAIR Legislative Update, Jun. 4, 2014; FAIR Legislative Update, Sept. 30, 2014) It created this unilateral military amnesty after true immigration reformers defeated its attempt to pass a military Dream Act through Congress. (See FAIR Legislative Update, May 28, 2014)
An army spokesman stated that 43 DACA recipients had enlisted as of April 2. (Wall Street Journal, Apr. 8, 2015) They will start to report to basic training late this year, and after they complete basic training, will immediately be eligible for citizenship. (Id.)
The expansion of the MAVNI program from 1,500 a year to, ultimately, 5,000 a year will take place as the Army continues to downsize its forces by tens of thousands. (See ArmyTimes.com, Dec. 27, 2014)
Texas Committee Passes Bill to Reserve In-State Tuition for Legal Residents
Last Wednesday, the Texas Senate Committee on Veterans Affairs and Military Installations Committee passed by a 4-3 vote Senate Bill ("S.B.") 1819, legislation that repeals the state's authority to grant illegal aliens in-state tuition at Texas public colleges and universities. (Texas Tribune, Apr. 8, 2015) S.B. 1819 is a renewal of legislators' efforts to repeal in-state tuition law signed by former Governor Rick Perry. (Id.)
Texas law currently allows illegal aliens to receive in-state tuition at Texas' public colleges and universities if they: graduate from high school in Texas, have resided in the state for at least three years, and have signed a pledge to become a legal permanent resident at the earliest possible opportunity. (Tex. Educ. Code § 54.053) S.B. 1819 repeals these provisions, and, instead, reserves the tuition subsidies for residents who are authorized under federal law to be present in the United States. (S.B. 1819) Thus, under S.B. 1819, illegal aliens granted deferred action under President Obama's executive amnesty will also be ineligible to receive in-state tuition.
Support for repealing Texas' in-state tuition law has increased in recent years as a result of the surges of illegal alien minors crossing the southern border following the announcement of President Obama's Deferred Action for Childhood Arrivals ("DACA") program in 2012.(See FAIR Legislative Update Jun. 4, 2014; DHS Press Release, Oct. 9, 2014; Washington Examiner, Mar. 23, 2015; Customs and Border Protection website, accessed on Mar. 27, 2015) Records from the Department of Homeland Security ("DHS") reveal that at the rate the illegal alien minors are currently crossing the southern border, this year will be second only to last year in minor border crossings. (Washington Examiner, Mar. 23, 2015) State Senator Donna Campbell, sponsor of S.B. 1819, stated, "I feel we need to direct our resources first and foremost to the legal residents of Texas. It's not meant to harm anyone." (Texas Tribune, Apr. 8, 2015)
Strain on Texas' higher education system, which has been suffering a budget crisis in recent years due to the weakened economy, has also fueled efforts to repeal the tuition subsidy. State funding for higher education fell by 22.7 percent between 2008 and 2013, despite increases in enrollment. (Center on Budget and Policy Priorities) As a result of these budget cuts, public colleges and universities in Texas were forced to increase tuition substantially, reduce academic offerings, shrink financial aid awards, cut programs, limit enrollment of in-state students, and freeze hiring. (Id.; Dallas Morning News, Jul. 1, 2011; Star-Telegram, Jan. 19, 2011; Huffington Post, Sept. 12, 2012; Community College Review; The Eagle, May 10, 2014) Additionally, annual tuition hikes have made Texas graduates more debt-ridden than ever, with the average student carrying $25,244 in debt, and over 59% of students carrying debt after graduation. (Institute for College Access & Success)
The full Senate and House of Representatives must consider S.B. 1819 before it can be sent to the governor's desk for approval. Governor Greg Abbott, a strong supporter of immigration enforcement, has already indicated he would sign S.B. 1819 if it made it to his desk. (Texas Tribune, Jan. 14, 2015)