Legislative Update: 4/16/2014
House Majority Leader Eric Cantor (R-VA), the House GOP's second ranking member, is throwing support behind Rep. Jeff Denham's (R-CA) attempt to amend his ENLIST Act (H.R. 2377), a military-based DREAM Act, onto the National Defense Authorization Act (NDAA). (See FAIR Legislative Update, Apr. 9, 2014) "Mr. Cantor views military service as the highest service one can perform for our nation and if a young man or woman was brought to this country as a child and knows no other home and wants to serve our nation in uniform, he supports making that possible," Cantor adviser Ray Allen told Breitbart News. (breitbart.com, Apr. 14, 2014) The ENLIST Act requires the Secretary of Homeland Security to issue green cards just for enlisting in the military with the only conditions being that the illegal aliens: (1) enter the U.S. before 2012; and (2) were younger than 15 when they entered the country. (See H.R. 2377)
Cantor's public support for a military DREAM Act confirms what he has been telling pro-amnesty House Republicans behind closed doors. Representative Denham previously told Breitbart News that Cantor was "very" supportive of his attempt to sneak amnesty into the must-pass NDAA. (breitbart.com, Apr. 14, 2014) Additionally, House Armed Services Chairman Buck McKeon (R-CA), a co-sponsor of the ENLIST Act, revealed that Cantor had made a "pledge" to Denham to help enact amnesty. (Id.) Last week, McKeon announced that his committee will amend the NDAA, a process known as "markup" at the subcommittee level on April 30 and May 1, and then the entire committee will conduct a final markup on May 7. (Chairman McKeon Press Release, Apr. 7, 2014) Because Denham is not on the committee, he will need a member to introduce his amnesty bill as an amendment to the NDAA.
Administration Admits it Turns Blind Eye to Illegal Aliens Seeking Obamacare
When Congress passed Obamacare — formally known as the Affordable Care Act — President Obama promised that illegal aliens would be ineligible for subsidized healthcare under the new law. (See Remarks by President Obama to Congress, Sept. 9, 2009) Years later, however, the Administration is admitting it plans to turn a blind eye to illegal aliens seeking coverage under the program, stating in recent guidance to insurance providers that the Centers for Medicare and Medicaid Services (CMS) will presume eligibility for coverage in instances where immigration status cannot be verified, in turn granting illegal aliens coverage until (and unless) they are proven ineligible. (See The Federalist, Apr. 10, 2014; see also Sen. Ted Cruz Press Office, Apr. 10, 2014)
The CMS posted this immigration-related guidance on one of its websites, called REGTAP, a portal through which the agency provides technical assistance and training related to Obamacare "Marketplaces." The agency posted the guidance in response to a question on the portal regarding whether individuals could upload immigration verification documents on the healthcare.gov website, and if so, who reviews such documents.
It first confirmed that consumers seeking coverage under the marketplaces can indeed upload documents supporting their attestation of eligible immigration status. Under Obamacare, an individual who attests to an eligible immigration status while completing his or her application will be asked to provide the Marketplace with information about the type of immigration document that he or she has supporting their status. At that point, the Marketplace will attempt to match the information provided with information contained in data sources used for eligibility verification, and if any of the information provided does not match information contained in data sources used for verification (called an "application inconsistency"), the Marketplace may ask the individual to upload additional information supporting his or her attestation. However, as this process occurs, the system will presume that the individual is eligible for Obamacare. The guidance says:
The Marketplace will attempt to match the information provided with information contained in data sources used for eligibility verification. If any of the information provided does not match information contained in data sources used for eligibility verification, it's called an application inconsistency. If there is an application inconsistency, the Marketplace will provide the consumer with eligibility while the inconsistency is being resolved based on the information provided on the application. (See The Federalist, Apr. 10, 2014) (emphasis added)
The Administration's ability to simply presume an applicant has an eligible immigration status stems from loopholes purposely built into Obamacare. First, the authors of the legislation refused to include language that required alien applicants to present immigration documents demonstrating eligibility up front. (See, e.g. FAIR, How the Senate Health Care Bill Impacts Immigration. Dec. 4, 2009). Instead, an alien who is applying for Obamacare must only state which document he or she has and provide the appropriate document number. (See, e.g. CMS, Application Instructions, p. 1-3, 7-9, Oct. 2013) Thus, the system relies on information provided by an applicant who may be trying to game the system.
Then, if the government wants to investigate further it may ask for documentation. However, there is no telling how stringent the review process for immigration eligibility will be or how closely such documents will be scrutinized. Given the Obama Administration has already demonstrated a propensity for rubberstamping immigration benefits applications (as found in this Inspector General report), there is no reason to believe that immigration documents pertaining to eligibility for Obamacare will be scrutinized any more closely. Already, nearly 4,000 illegal aliens residing in Oregon alone were "accidentally" enrolled in Obamacare last month, creating doubt as to the Administration's willingness to prevent illegal aliens from enrolling. (NRO, Mar. 5, 2014)
Finally the Obama Administration's decision to presume eligibility underscores its desire to enroll individuals in its signature healthcare law at the expense of the integrity of our country's immigration laws. Just last month President Obama assured listeners during an interview with Univision Deportes, a Spanish-language radio show, that immigration officials won't have access to the personal information that consumers provide when signing up for Obamacare. "Well, the main thing for people to know is that any information you get, you know, asked with respect to buying insurance, does not have anything to do with ... the rules governing immigration." He continued, "You know, if you have a family where some people are citizens or legally here, and others are not documented, the immigration people will never get that information." (See The Hill, Mar. 18, 2014)
FBI: Terrorist Bomber Committed Immigration Fraud
Last week, the FBI arrested a suspected terrorist for making false statements to an immigration judge. (Connecticut Post, Apr. 7, 2014; Reuters, Apr. 8, 2014; Breitbart, Apr. 8, 2014; Los Angeles Times, Apr. 9, 2014) According to law enforcement, Moroccan national El Mehdi Semlali Fahti, who at one point had been living in the country illegally and later obtained immigration relief through fraud, conducted two bombings and conspired to crash radio-controlled airplanes carrying bombs into a federal building and university. (See Affidavit by FBI Agent Anabela Sharp at p. 16, Apr. 4, 2014)
Fahti came to the U.S. in January 2008 to study on a student visa. (Id. at p. 8) However, when he failed every class in the fall 2008 semester at Virginia International University and did not register for any of the next semester's classes, his visa was terminated. (Id.) Underscoring the need for a biometric entry-exit system, Fahti nonetheless remained illegally in the U.S. as a visa overstay until he was arrested in Virginia nearly three years later. (Id.) Upon arrest, he was identified as an illegal alien by the Secure Communities program and an immigration detainer was placed on him. (Los Angeles Times, Apr. 9, 2014) At that point, Fahti was ordered removed from the country, but instead of being deported, Fahti claimed asylum, gamed the system, and was eventually granted what's referred to as "withholding of removal." (See USCIS Form I-589, Application for Asylum and for Withholding of Removal)
Under Federal law, the government is prohibited from deporting an otherwise removable alien to a country if the Attorney General decides that "the alien's life or freedom would be threatened in that country because of the aliens' race, religion, nationality, membership in a particular social group, or political opinion." (See 8 U.S.C. § 1231(b)(3)(A); see also Affidavit at p. 5-6) After allegedly hearing about this form of relief and the asylum process from a fellow inmate, Fahti spent three months while in prison in Virginia researching immigration law and Moroccan history and filled out his application for asylum and withholding of removal with a fabricated story of persecution. (See Affidavit at p. 15) Though Fahti's asylum claim was denied because he did not file it within one-year of arriving to the U.S. as required by Federal law, he was ultimately granted his withholding of removal claim, which lacks a similar time-bar. (Id. at pp. 5-6)
Indeed, on his application Fahti falsely claimed, and an immigration judge nonetheless agreed, that if he returned to Morocco, he would be persecuted for his political opinion and for engagement with a particular social group. Despite stating on his student visa application in 2007 that he had never been arrested, on both his asylum and withholding of removal application and in his testimony before the immigration judge, Fahti alleged that he had been arrested multiple times by the Moroccan government for protesting while attending a university in Marrakech. (Id. at p. 6) Upon later investigation by the FBI, however, it was determined that Fahti was never arrested or convicted of any crimes in Morocco, and did not attend any university in Marrakech. (Id.) In fact, the investigation revealed that he contradicted himself on several occasions, yet the immigration court never questioned that his application might be based on lies. (Id. at p. 13)
Then in January 2014, roughly six-months after obtaining his reprieve from deportation, the FBI started to monitor Fahti for homeland security concerns. The FBI were able to record Fahti conspiring to commit acts of terror, as well as laughing and bragging that he could not believe an immigration judge had accepted his lies. (Id. at p. 16) On April 7, 2014, Fahti was arrested for making false statements, procuring an immigration benefit by fraud, and making a false statement in an immigration proceeding while under oath. (Id. at p. 18) Going forward, Fahti will appear before a federal grand jury which could indict him on terrorism charges. (Los Angeles Times, Apr. 9, 2014)
The Fahti case underscores the need for true immigration reform such as adequate vetting of student visa applications, careful review of requests for refugee and asylum status, as well as robust, uniform enforcement. (See FAIR's TRUE Immigration Reform: A Policy that Serves the Interests of the American People.) As Senator Jeff Sessions (R-AL) emphasized in a press release, "These events underscore the urgent need to restore lawfulness and integrity to our immigration system." (Sen. Sessions Press Release, Apr. 9, 2014) He went on to point out a 2009 internal audit showing that 70 percent of asylum applications submitted to DHS had signs of fraud. (See Sen. Sessions Press Release, Apr. 9, 2014; see also USCIS, I-589 Asylum Benefit Fraud and Compliance Assessment Report, Nov. 16, 2009)
Congressional Hispanic Caucus Meets with DHS Secretary, Expects Executive Amnesty
Last Wednesday, Department of Homeland Security (DHS) Secretary Jeh Johnson met privately with the Congressional Hispanic Caucus (CHC), to discuss immigration policy. (CHC Press Release, Apr. 9, 2014; Politico, Apr. 9, 2014) The Secretary is currently in the midst of a review of the Department's deportation policies, announced by the President in the presence of three members of the CHC last month. (See FAIR legislative Update, Mar. 19, 2014).
Both Secretary Johnson and the CHC came to the meeting with a list of ideas to further weaken enforcement of immigration laws. According to the LA Times, Secretary Johnson brought a "file full" of suggested changes to immigration law. (LA Times, Apr. 9, 2014) Meanwhile CHC members, during their hour with Secretary Johnson, presented the six page memo which they sent to him last week demanding that the Department delay or suspend the deportations of illegal aliens who would qualify for amnesty under S. 744, and their list of "policy options" for how it might do so. (LA Times, Apr. 9, 2014; see also FAIR Legislative Update, Apr. 9, 2014)
Congressional Hispanic Caucus members came away from the meeting with the impression that the Administration would indeed be loosening immigration laws in at least some of the ways they demanded. (LA Times, Apr. 9, 2014) Representative Gutierrez released a statement saying, "This is the first of what I perceived to be many conversations on the road to overhauling our enforcement system...." (Rep. Gutierrez Press Release, Apr. 9, 2014) One member at the meeting told the Washington Post, "[m]y impression was that he's going to change policies to cut the number of deportations, but that the number is not going to be where we'd like it to be." (Washington Post, Apr. 9, 2014) Another reported that the Administration is considering further reducing deportations in two stages, the first "incremental," the second more "ambitious." (Id.)
To the public, Secretary Johnson was circumspect about his intentions. He told reporters after the meeting that he is keeping "an open mind" and that he "learned a lot from the submissions they have made." (Politico, Apr. 9, 2014) "I have heard a number of cases that lead me to want to reevaluate our priorities," he said. (Associated Press, Apr. 15, 2014) However, as true immigration reformer Senator Jeff Sessions (R-AL) pointed out last month, the groups he has been meeting with during this review have not included experts on the other side of the debate, such as his own Immigrations and Customs Enforcement officers' union and its members. (Sen. Sessions Press Release, Mar. 25, 2014)
Members of the CHC now appear to agree that Obama does not consider himself bound by his public statements last November that he does not have the legal authority to suspend deportations unilaterally. (NBC Bay Area, Nov. 26, 2013) During a speech in San Francisco he told the audience, "if in fact I could solve all these problems without passing laws in Congress, then I would do so. But we're also a nation of laws. That's part of our tradition." (NBC Bay Area, Nov. 26, 2013; see also FAIR's Legislative Update, Jan. 22, 2014) However, at least three Congressmen left the CHC meeting convinced the Administration is "re-evaluating its previous views as to the limits on Obama's legal flexibility," though they claimed that "no specific promises were made." (Washington Post, Apr. 9, 2014)
If President Obama grants a broad executive amnesty, it would not be the first time he reversed his position on whether he possessed the authority to do so. In March 2011, President Obama publically said he did not have the authority to unilaterally implement a DREAM Act amnesty. Yet he did so anyway, a little more than a year later, with DHS's announcement that it would implement the Deferred Action for Childhood Arrivals program. (See FAIR's Legislative Update, Jun. 2012; White House Press Release, Mar. 28, 2011)
Boehner Blames Obama for Stall of Amnesty Legislation
Speaker John Boehner (R-OH) again cited House Republicans' distrust in President Obama's willingness to enforce the law as the main factor for the apparent stall of amnesty legislation in Congress. "I've tried to get the House to move on this now for the last 15 or 16 months," Boehner said during an interview on Fox News's "Kelly File." (The Kelly File, Apr. 7, 2014) "But every time the president ignores the law, like the 38 times he has on Obamacare, our members look up and go, ‘Wait a minute: ... how can we trust the president to actually obey the law and enforce the law that we would write?" (Id.) The Speaker added that if the President uses executive power to stop deportations, it "will make it almost impossible to ever do immigration reform, because he will spoil the well to the point where no one will trust him by giving him a new law that he will implement the way the Congress intended." (Id.)
The Speaker's comments last Monday were almost identical to statements he made in February, just one week after the release of the pro-amnesty principles. (See FAIR Legislative Update, Feb. 5, 2014). At that time Mr. Boehner pointed to a lack of "trust" in Obama to "enforce the law as it is written" as "one of the biggest obstacles" to working on immigration legislation. (See FAIR Legislative Update, Feb. 12, 2014)
But while Speaker Boehner derided the President for selectively enforcing the law, he also suggested he still supports the pro-amnesty immigration reform principles he released last February. When host Megyn Kelly asked if Jeb Bush's recent description of illegal immigration as an "act of love" may hurt his potential run for the presidency, Boehner responded, "I do not. The American people want us to deal with immigration reform. It's become a political football over the last 15 years." (The Kelly File, Apr. 7, 2014)
Despite Speaker Boehner's claims that the American people support amnesty, recent polls clearly show broad opposition to it. A March NBC News/Wall Street Journal poll of 1,000 adults found that 42 percent are less likely to vote for a candidate who supports a "pathway to citizenship" for illegal aliens compared to only 36 percent who are more likely to vote for such a candidate. (NBC News/Wall Street Journal Poll at p. 16, Mar. 2014) A similar poll by ABC News/Washington Post found that 38 percent of adults would be less likely to vote for a candidate who supports a "path to citizenship" compared to only 30 percent who are more likely to vote for such a candidate. (ABC News/Washington Post Poll at p. 17, Mar. 4, 2014; see also FAIR Legislative Update, Mar. 12, 2014)
California Legislation Creates Student Loan Program for Illegal Aliens
Last week, the California Senate Education Committee passed Senate Bill ("S.B.") 1210, which establishes a loan program for illegal aliens at the California State University and University of California university systems. (U-T San Diego, Apr. 9, 2014) S.B. 1210 could cost the state as much as $9.2 million in the first year alone to provide student loans to an estimated 8,300 illegal alien students. (Sacramento Bee, Apr. 9, 2014)
Current California law already allows illegal aliens to receive in-state tuition rates and state-funded financial aid at its public colleges and universities. (Id.; Cal Ed Code § 68130.5; Cal Ed Code § 69508.5) S.B. 1210 goes further by extending each illegal alien student a total of up to $20,000 in loans to finance their education.
S.B. 1210 passed the Senate Education Committee by a 5-0 vote, with two senators withholding their vote. Senator Ricardo Lara, sponsor of S.B. 1210, called the bill "a short-term investment that will bring a long term gain to California." (U-T San Diego, Apr. 9, 2014) Senator Lara, however, did not discuss how granting taxpayer-funded loans to students who lack work authorization or any legal right to reside in the United States is a wise use of taxpayer money. Senator Bob Huff and Senator Mark Wyland, both Republicans, abstained from voting on the bill. (Los Angeles Times, Apr. 9, 2014) "Because that [immigration] is a federal issue, today I won't be voting on the bill," Wyland said. (Id.)
Janet Napolitano, former Secretary of the Department of Homeland Security and current president of the University of California, testified in support of S.B. 1210, saying "I believe once these students are admitted, we should work as hard as we can to ensure that they have every chance to succeed, including providing them the same access to resources as their campus peers." (Id.)
Napolitano's support comes despite California's higher education system's severe budget crisis. Between FY 2008 and FY 2013, California has reduced its financial support of public higher education by 29.8% and has increased tuition by 72%, one of the highest rates in the country, second only to Arizona. (Center on Budget Policy and Priorities, 2013) As a result of California's annual tuition hikes, California students are now more in debt than ever, carrying an average of $20,269 in debt with more than 79% of its students relying on loans to fund their education. (Project on Student Debt, 2013) S.B. 1210 would only serve to further damage and strain delicate budgets, divert state resources from its citizens and legal resident student population, and impose additional burdens on California's taxpayers.
Senate Appropriations Committee will next consider S.B. 1210. If passed by the Senate Appropriations Committee, the full Senate must vote on the bill before sending it to the Assembly.