Legislative Update: 4/26/2016
The government places the vast majority of unaccompanied alien minors (UAMs) who arrive at the border in the hands of adult sponsors who are in the country unlawfully, according to recently uncovered data. (Associated Press, Apr. 19, 2016) It has long been known that the government places UAMs with family and friends regardless of their immigration status, but since the UAM surge began in 2014, it has not been revealed how often those sponsors are illegal aliens. (Id.)
In response to a Freedom of Information Act (FOIA) request by the Associated Press, the Department of Health and Human Services (HHS) provided data showing that of the 71,000 primarily Central American UAMs placed with adult sponsors between February 2014 and September 2015, an astounding 80 percent were placed in the custody of a sponsor not here legally. (Id.) Six percent were placed with adults who had temporary protected status, which has let some Central Americans stay and work in the country legally for more than a decade. (Id.) Four percent were sponsored by American citizens and one percent by immigrants facing deportation proceedings. (Id.) Many of the others were placed with sponsors who had other forms of legal status or who have filed immigration applications. (Id.)
Once UAMs from Central America are apprehended at the border, they are screened, processed, and detained by U.S. Customs and Border Protection (CBP) under the Department of Homeland Security (DHS). (See FAIR UAM Fact Sheet) Within 72 hours, they must be turned over to HHS and placed into a temporary immigration shelter. From there, HHS attempts to place the UAM with an adult sponsor — who may also be in the country unlawfully — to care for them temporarily, pending the resolution of their case in immigration court. However, many UAMs fail to appear in immigration court and effectively disappear into the country, as HHS cedes all power and responsibility over the UAM once they are transferred to the care of a sponsor. (Permanent Subcommittee on Investigations Staff Report, Jan. 28, 2016).
Fortunately, true immigration reformer Sen. Jeff Sessions (R-AL) and Homeland Security and Governmental Affairs Chairman Ron Johnson (R-WI) have already introduced legislation to address the placement of UAMs with adult sponsors. S. 2561, the Protection of Children Act of 2016, requires HHS to collect background information to prevent the release of UAMs to illegal aliens already in the country. (See FAIR Summary of S. 2561) The bill also closes a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 that prevents Central American UAMs from being promptly returned to their home countries. This loophole, combined with President Obama's refusal to enforce our immigration laws, continues to exacerbate the UAM surge that began in 2014. The Sessions-Johnson bill is the companion to the House version, H.R. 1149, which was authored by Rep. John Carter (R-TX) and passed out of the House Judiciary Committee last year. (See FAIR Summary of H.R. 1149; House Judiciary Markup of H.R. 1149)
FAIR supports H.R. 1149 and S. 2561.
Vermont Ski Resort Latest Example of EB-5 Fraud
The Vermont ski resort funded by the EB-5 Immigrant Investor Program — and long pointed to as the model example of the program — was allegedly built on fraud, federal authorities now claim. On April 14, the Securities and Exchange Commission (SEC) filed civil fraud charges and froze the assets of Jay Peak Resort's owner, Ariel Quiros, and its president, William Stenger. (Boston Globe, Apr. 14, 2016) According to the SEC, Quiros and Stenger utilized the EB-5 program to raise more than $350 million from 700 foreign investors but at least half of that money was misused while more than $50 million was "systematically looted" for personal uses. (Id.) "The alleged fraud ran the gamut from false statements to deceptive financial transactions to outright theft," declared Andrew Ceresney, director of the SEC's enforcement division. (Id.)
Pro-amnesty Sen. Patrick Leahy (D-VT), who has deflected criticism of the EB-5 program by highlighting the ski resort in his home state, said "I'm shocked and saddened by what state and federal investigators have found." (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 U.S. Citizenship and Immigration Services (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 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 (RCP) 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 opposes the EB-5 program, arguing that the U.S. should not be selling visas. FAIR is particularly critical of the looser requirements for the RCP which are routinely exploited. Rampant fraud and abuse uncovered in Vermont and at countless other RCP sites are predictable outcomes of a deeply flawed program that is simply beyond reforming. (See FAIR's Why Congress Must Let EB-5 Regional Centers Expire, Sept. 29, 2015) Congress temporarily extended the RCP through Fiscal Year 2016 in the omnibus government funding bill. In light of the blatant fraud at Jay Peak Resort, FAIR calls upon Congress to let the program expire by refusing to fund it in the Fiscal Year 2017 appropriations.
Administration to Supreme Court: Crossing Off Words Fixes Amnesty Case
The Supreme Court heard oral arguments on April 18 in U.S. v. Texas, the most important case the Court will decide this year. (See SCOTUSblog, Feb. 9, 2016) The issue before the Court is whether to allow President Obama to implement the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) amnesty programs. DAPA and expanded DACA, which would unilaterally grant work authorization and legal presence to 4.7 million illegal aliens, has been on hold since Judge Andrew Hanen temporarily blocked it with a preliminary injunction in February 2015. (See FAIR Legislative Update, Feb. 18, 2015) Based on the questions posed to the parties, the Justices currently seem inclined to rule 4 to 4. Because the Fifth Circuit ruled to uphold Judge Hanen's injunction, a tie would leave the injunction in place. (See FAIR Legislative Update, Nov. 17, 2015) Ties at the Supreme Court leave the lower court ruling in place, but do not set precedent. (See FAIR Legislative Update, Apr. 12, 2016)
The Court's decision seems likely to hinge on two main arguments: 1) do Texas and the other 25 states that joined the lawsuit have "standing" to sue; and 2) does unilaterally granting DAPA and expanded DACA aliens "lawful presence" in the United States go beyond the President's role of executing the law?
In order for the Supreme Court to move forward with the case, the Justices must determine that at least one of the states have suffered direct harm from the administration's actions, a concept known as "standing." The lower courts found that Texas has standing because it would suffer financial damages since its state laws require that it provide driver's licenses — which are subsidized by the state — to all lawfully present aliens in the state. (Transcript U.S. v. Texas Oral Arguments, Apr. 18, 2016) The DAPA program, by granting "lawful presence" to a significant number of illegal aliens located in Texas, would therefore cause a spike in numbers of people eligible for Texas driver's licenses. The Texas treasury would have no choice but to directly bear the costs of these extra licenses, a direct and non-speculative harm that, Texas argued, satisfies the standing requirement.
Last Monday, Solicitor General Donald Verrilli (representing the administration), attempted to convince the Justices that no injury really resulted, because Texas is not truly forced into providing subsidized licenses. (Id.) The standing arguments advanced by Verrillli were shot down by Chief Justice John Roberts, as well as Justices Anthony Kennedy and Samuel Alito. Chief Justice Roberts said that Verrilli's argument was putting Texas in "a real catch-22." (Id.) Justice Roberts highlighted the fact that if Texas was injured it has standing but if it changed the law and did not confer licenses to avoid the injury the administration would sue. It was also noted that, even if the administration does not sue Texas, DAPA eligible illegal aliens may well do so. (Id.) When asked about what he thought about the chances of success for such a suit, and even whether the administration would sue itself, Verrilli was evasive. (Id.)
The standing arguments seemed to have a more sympathetic audience with Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsberg, and Stephen Breyer, however. For instance, Justice Breyer suggested that perhaps mere "financial" harm was not sufficient to provide standing at all. (Id.)
Although only the injunction is subject to this appeal, the Justices questioned both sides about whether the DAPA and expanded DACA programs are lawful. On this question, several Justices seemed fairly inclined to rule that the answer was no. For instance, Justice Kennedy suggested that the DAPA program was "backwards" as "the President is setting the policy and the Congress is executing it." (Id.) And Justice Roberts said that it must have been difficult for the administration to argue that the illegal aliens are "lawfully present and yet they are present in violation of the law." Verrilli argued that "lawfully present" means that the aliens are "tolerated." (Id.) Justice Alito followed up saying, how is it "possible to lawfully work in the United States without lawfully being in the United States?" (Id.)
Verrilli's response to these questions was remarkable. Indeed, the Solicitor General argued that the administration is not "trying to change anybody's legal status on immigration" and that the administration would be willing to cross out the words "lawfully present." (Id.) The administration's claim that "lawfully present" has no meaning — a claim raised for the first time at these arguments — borders on the absurd. The granting of lawful presence was intentionally done by the Obama administration because DAPA and expanded DACA (as forms of deferred action) make illegal aliens eligible to work in the United States as well as get benefits like Social Security, Medicare, Obamacare, and Unemployment. (See FAIR's Executive Amnesty Will Give Illegal Aliens Taxpayer Funded Benefits, Nov. 17, 2014) Justice Alito noted that DAPA and extended DACA is more than just putting the aliens "in a low-priority prosecution status" because the aliens could sue on discrimination if an employer didn't hire the aliens because the employer believed that they were not lawfully authorized to work. It gives the aliens a "legal right they did not have before." (Transcript U.S. v. Texas Oral Arguments, Apr. 18, 2016)
Scott Keller, Texas Solicitor General, argued that DAPA and extended DACA were an unprecedented "assertion of executive power" which was not statutorily granted. (Id.) He argued that Congress affirmatively acted in 1996 to put "forward those barriers to work and to benefits to deter unlawful immigration." (Id.) Keller stated that even if the administration struck out the phrase "lawful presence" it would not cure the defect because the administration is "affirmatively granting a status." (Id.)
Finally, Attorney Erin Murphy argued eloquently on behalf of the U.S. House of Representatives which filed an amicus brief supporting the states. Her main point was that President Obama had gone to Congress to ask it to pass legislation "to authorize most of the people that are living in this country unlawfully to stay, work and receive benefits." Congress declined to act and now the "Executive comes before this court with the extraordinary claim that it has the power to achieve the same." (Id.) Murphy argued that the administration is far "outside the notion of mere enforcement discretion." (Id.) She articulated that if it was the administration's only intent to tell this group of aliens that they weren't going to deport them, they could have simply done that with an enforcement priorities memo. However, she argued the administration's goal was to accomplish something more: "not only are you not an enforcement priority, but we want you to be eligible to work and receive benefits" by converting the alien's status. (Id.)
The Justices will now deliberate behind closed doors for the next few months. A ruling is expected in late June. Stay tuned to FAIR's U.S. v. Texas Resource Page throughout the Summer for updates on the case.
House Appropriations Subcommittee Addresses Use of the Term 'Illegal Alien' in Spending Bill
Last Wednesday, the House Appropriations Legislative Branch Subcommittee passed the Fiscal Year 2017 Legislative Branch Appropriations Act, funding the Capitol Police, government printing, and other basic operations of the House. (Roll Call, Apr. 20, 2016) Also covered by the spending bill is the Library of Congress, which, at the behest of pro-amnesty groups, recently announced that it had canceled the use of "illegal alien" and the broader term "alien" for cataloging purposes. (See FAIR Legislative Update, Apr. 19, 2016) The Library of Congress explained that the terms would be swapped out for "noncitizen" and "unauthorized immigrants" – terms that are factually and legally incorrect.
Exercising his budget authority over an agency of Congress, Subcommittee Chairman Tom Graves (R-GA) included FAIR-supported report language that orders the Library to continue using the terms "alien" and "illegal alien" because they are consistent with terminology used in Title 8 of U.S. Code. (Roll Call, Apr. 20, 2016) Language in reports that accompany appropriations bills often include directives like this to require or encourage agencies to take specified action or refrain from taking a certain action. (See Appropriations Report Language CRS Report) The decision to include the language prompted the panel's ranking Democrat, Rep. Debbie Wasserman-Schultz (D-FL), to vote against the bill after she accused Graves of "needlessly politicizing an issue." (Roll Call, Apr. 20, 2016) "We are not politicizing this issue," countered Graves, who suggested that if lawmakers had an issue with the term, they should make attempts to change the code. (Id.) He also noted that just last week, Supreme Court justices used "alien" during U.S. v. Texas oral arguments, solidifying the argument that the term is the legally appropriate description for noncitizens. (Id.)
Connecticut Senate Passes Bill to Give Illegal Aliens Financial Aid
The Connecticut Senate passed a measure, Senate Bill (SB) 147, to allow illegal aliens attending Connecticut's public colleges and universities to receive taxpayer funded financial aid. (CT Mirror, Apr. 20, 2016) The Senate passed the measure by a 21-13, party line vote. (Journal Inquirer, Apr. 21, 2016) Connecticut's taxpayers already subsidize illegal alien students by allowing them to pay in-state tuition rates at all of the state's institutions of higher education. (Conn. Gen. Stat. § 10a-29)
SB 147 grants eligibility for taxpayer funded financial aid to all illegal aliens who meet certain requirements. These include: currently residing in Connecticut, attending high school in the state for at least two years, graduating from high school in the state, and filing an affidavit stating his or her intention to file an application with the federal government to legalize his or her immigration status as soon as he or she is eligible to do so. (SB 147 § 1) SB 147 also allows illegal aliens to apply for tuition waivers, tuition remissions, grants for educational expenses, and student employment opportunities that are only available for residents of the state who demonstrate financial need. (Id.) If SB 147 is enacted, it is set to go into effect on July 1, 2016. (Id.)
Opponents contend that the measure is unfair to Connecticut families, as it would decrease available aid for Connecticut citizens. "[W]e are going to take money away from students who live in Connecticut, from taxpayers who live in Connecticut ... because we're giving it to people who are here illegally," commented Senator Robert Kane (R- 32). (Journal Inquirer, Apr. 21, 2016) "Either less people will get it or people will get less money," he said. (CT Post, Apr. 20, 2016)
Indeed, Connecticut's education budget already falls short in meeting the needs of its citizen and lawful resident students. Over 20,000 citizens and lawful residents applied for financial aid in 2015, but the state could only afford to grant awards to approximately half of these applicants, a mere 11,328 students. (CT Mirror, Apr. 20, 2016) Connecticut taxpayers already pay over $925 million annually to subsidize illegal immigration in their state, more than half of which is attributable to the costs of K-12 education for illegal aliens. (See FAIR Cost Study, 2011)
The Connecticut House must approve SB 147 before it can be sent to Governor Dannel Malloy (D) for approval. The Senate passed a similar bill last year, however, it was defeated in the House due to a lack of support. (FAIR Legislative Update, May 27, 2015)