Legislative Update: 5/16/2017 
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Legislative Update: 5/16/2017

Federal Appellate Courts Hear Oral Arguments on Revised Travel Freeze

By: RJ Hauman

A three-judge panel from the Ninth Circuit Court of Appeals heard oral arguments yesterday over an activist District Court judge’s decision to block President Trump’s revised executive order calling for a temporary travel freeze from countries that are hotbeds for terrorism. (Washington Post, May 15, 2017) Last month, Hawaii-based Judge Derrick Watson blocked Section 2 (90-day freeze of entry by individuals from Iran, Syria, Libya, Somalia, Yemen, and Sudan) and Section 6 (120-day freeze on all refugee resettlement and lowering the cap from 110,000 to 50,000 for the fiscal year) of the order, setting the stage for yesterday’s appeal. (See FAIR Legislative Update, Mar. 21, 2017) It was also the second time the Ninth Circuit heard a government appeal on this matter. Earlier this year, a different panel of judges affirmed a lower court injunction against the president’s first travel freeze order, which he revoked by issuing a revised version. (See FAIR Legislative Update, Feb. 14, 2017)

Neal Katyal, a former Solicitor General under President Obama, represented Hawaii during yesterday’s hearing. (Washington Post, May 15, 2017) He insisted that Trump’s statements about Muslims during the campaign are evidence that the executive order on immigration was motivated by religious animus. (Id.) The administration’s lawyer, Solicitor General Jeff Wall, disputed that claim, rightfully arguing that the travel freeze is related to territories and terrorism, not religion. (Id.) Wall also cited Section 212(f) of the Immigration and Nationality Act (INA), which clearly grants the president the authority to implement the executive order. According to the law, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.” (INA § 212(f); 8 U.S.C. § 1182(f)) However, the three judges—all appointed by President Clinton—seemed more receptive to Katyal’s argument and pressed Wall heavily on the president’s past statements.

Yesterday marked the second time this month that an appellate court heard a government appeal regarding a travel freeze injunction. Last week, the entire Fourth Circuit Court of Appeals heard arguments over whether to affirm activist Maryland Judge Theodore Chuang’s March 15 ruling that blocked Section 2 of the order. Full court consideration (known as en banc) is rare and underscores the significance of the case. (See FAIR Legislative Update, Mar. 21, 2017) The hearing pitted Wall against ACLU lawyer Omar Jadwat, who stumbled and contradicted himself often. (New York Times, May 8, 2017) Despite this, only two judges—one appointed by President George W. Bush, the other by President George H.W. Bush—gave indications that they may side with the government. (Id.)

If both Courts of Appeal rule against the Trump administration in the coming weeks—a strong possibility with both courts made up of majority Democratic appointee judges—the Supreme Court is all but certain to take up the case given the national security significance. (See FAIR Legislative Update, Apr. 18, 2017) Justice Neil Gorsuch’s recent confirmation to fill the seat vacated by Justice Antonin Scalia’s death last year means the high court has nine justices again. This is important because the outcome will now produce a majority ruling (at least 5-4) for either side that establishes binding precedent.

State Attorneys to Police: Charge Criminal Aliens with Lesser Offenses to Avoid Deportation

By: Shari Rendall

Anti-borders elected officials in several states are now encouraging law enforcement to water down charges against criminal aliens to protect them from deportation. Outrageously, attorneys—individuals who are officers of the court and swear to uphold the law—are advising police to charge criminal aliens with lesser offenses if charging them with the actual offense committed would make them subject to deportation. (See RedState, Apr. 29, 2017; Conservative Review, May 9, 2017) Notably, these directive only apply to criminal aliens so an American citizen who commits the same, non-violent offense will not benefit from watered down charges. (RedState, Apr. 29, 2017) For example, Acting Kings County District Attorney Eric Gonzalez in Brooklyn told his department to “be alert to a defendant’s possible non-citizen status” and “consider alternative offenses the defendant can plead to as well as reasonable modifications to the sentence recommendation” to “reach an immigration-neutral disposition.” (Lifezette, Apr. 29, 2017) In Baltimore Chief Deputy State's Attorney Michael Schatzow sent his staff a memo urging them to consider the “potential consequences to the victim, witnesses, and the defendant” in “the appropriate disposition of a minor, non-violent criminal case.” (The Baltimore Sun, Apr. 28, 2017)

Attorney General Jeff Sessions blasted these directives to skirt immigration enforcement during a speech to law enforcement. “I regret … that we’ve seen district attorneys openly brag about not charging cases appropriately – giving special treatment to illegal aliens to ensure these criminal aliens aren’t deported from their communities. They advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen. It baffles me.” (See AG Sessions Speech, Apr. 28, 2017) Regardless, no jurisdiction has a right to violate federal law ... as the president has made clear, our system is a system of laws, and we will be the administration that ends the rampant immigration illegality.” (Id.)

Charging aliens (both illegal and legal) differently than U.S. citizens is not limited just to the localities that have issued directives. In Boston, legal alien Bampumim Teixeira, who should have been previously deported for multiple counts of bank robbery, brutally murdered two anesthesiologists in their apartment last week. Under the Immigration and Nationality Act (INA) any alien convicted of an aggravated felony at any time after admission is deportable. (See INA §237(a)(2)(A)(iii)) It also says that an alien is deportable if convicted of a crime involving moral turpitude for which a sentence is one year or longer may be imposed. (See INA §237(a)(2)(A)(i)) However, instead of being charged with two counts of robbery which would resulted in his deportation, Teixeira pled guilty to the lesser charge of larceny from a person and was sentenced to 364 days in prison. As a result, he was allowed to skirt deportation and eventually murder two innocent citizens. (Boston Herald, May 10, 2017)

Likewise, in the sanctuary community of Montgomery County Maryland – not far from Baltimore – an illegal alien student received much more lenient treatment than would be expected for a U.S. citizen. In that instance, an 18 year-old Salvadoran high school student at Albert Einstein High School, Mario Granados-Alvarado, was arrested when he drove a stolen car with an assault rifle (stolen from a police cruiser) onto school property. Granados-Alvarado was released on $2,000 bond despite U.S. Immigration and Customs Enforcement (ICE) issuing a detainer that was not honored because Montgomery Count is a sanctuary jurisdiction. (RedState, May 8, 2017) Yet again, federal immigration enforcement officers criticized these jurisdictions that are harboring criminal aliens. “Keeping people safe means not tolerating the release of aliens that present a clear public safety threat back into our communities,” said Dorothy Herrera-Niles, Maryland field office director of ICE’s Enforcement and Removal Operations unit. “ICE is committed to fostering positive collaboration with our local law-enforcement partners, and welcomes changes from county officials that would prioritize public safety.” (See ICE News Release, May 8, 2017)

The results of reducing or eliminating criminal charges for aliens for purely political reasons endangers American communities. About 46,000 criminal aliens account for more than one-fourth of prisoners in Federal Bureau of Prisons facilities, and there are about 297,000 criminal aliens incarcerated in state and local prisons. (See FAIR Issue Brief, Aug. 2015) That number represents about 16.4 percent of the state and local prison population compared to the 12.9 percent of the total population comprised of foreign-born residents. (Id.) A Congressional Research Service report released in August 2012 found that over a 33-month period, between October 2008 and July 2011, more than 159,000 illegal aliens were arrested by local authorities and identified by the federal government as deportable but nevertheless released back onto the streets. (Id.) Nearly one-sixth of those same individuals were subsequently again arrested for crimes. (Id.)

Americans agree with the Trump administration’s immigration enforcement priorities.  A Harvard-Harris recent poll revealed that Americans overwhelmingly oppose sanctuary cities and want aliens who commit crimes deported. (See FAIR Legislative Update, Feb. 28, 2017) Eighty percent of the respondents said they wanted local authorities to comply with federal law and report illegal aliens they encounter. (Id.)

Senate Democrats Introduce Agricultural Worker Amnesty Bill

By: Robert Law

Several key Democratic senators have introduced a bill to grant amnesty to illegal alien agricultural workers. The “Agricultural Worker Program Act of 2017” is authored by Judiciary Ranking Member Diane Feinstein (D-CA) and is cosponsored by Gang of Eight Sen. Michael Bennet (D-CO) and Sen. Pat Leahy (D-VT), who chaired the Judiciary Committee during the Gang of Eight amnesty push in 2013. (S. 1034) The bill is also cosponsored by lesser known amnesty advocates Sens. Mazie Hirono (D-HI) and Kamala Harris (D-CA). (Id.) “The people who feed us should have an opportunity to work her legally,” Feinstein said while introducing her amnesty bill, ignoring the fact that agricultural employers can bring in an unlimited number of guest workers through the uncapped H-2A temporary agricultural visa if they were interested in following the law. (See The Hill, May 9, 2017)

The 45-page bill is not an original idea, having been around since at least 2009 under the name “Agricultural Job Opportunities, Benefits and Security (AgJOBS) Act.” (See FAIR's AgJOBS Summary, June 17, 2009) Indeed, the bill text is nearly identical to the agricultural amnesty provision included in the Gang of Eight bill and it was widely reported at the time that Sen. Feinstein along with pro-amnesty Sen. Orrin Hatch (R-UT) played a significant role in its inclusion. (See FAIR Legislative Update, Apr. 15, 2013)

Like every version of amnesty legislation, this bill provides immediate legalization and will result in more illegal immigration. Under the bill, current illegal alien ag workers will receive a “blue card” as long as they have merely worked 575 hours or 100 days in agriculture over the past two years. The “blue card” grants them legal presence in the United States, the ability to travel outside the country and legally return, and makes them eligible for Legal Permanent Resident (greed card) status—and the path to citizenship—after five years. Importantly, once an amnestied illegal alien converts their blue card to a green card, they are granted blanket work authorization meaning they will likely leave agricultural work in favor of higher paying, less laborious work. Naturally, this loss of “legal” agricultural workers will lead to a “shortage” and encourage the ag industry to utilize cheap, illegal labor again. The bill also grants amnesty to the spouse and children of the blue card alien. Unsurprisingly, the bill does not require the collection of back taxes from the illegal alien that failed to report cash wages to the Internal Revenue Service, as required by tax law. Instead, it merely requires amnestied illegal aliens to pay all taxes “assessed” which will not be much (if any) money because of the low wages they will receive. (S. 1034; compare FAIR's Gang of Eight AgJOBS Summary)

FAIR’s media director, Ira Mehlman, detailed the bill’s flaws in a recent press inquiry. “It’s another agricultural amnesty,” Mehlman declared. (MySanAntonio.com, May 9, 2017) “You come here, you work for 100 days over two years, you get your blue card to be converted to a green card, then you go work someplace else that pays you better, provides better working conditions. And then you just bring in the next group of illegal aliens to do the next thing.” (Id.) He concluded, “It just becomes a revolving door, all in effort to avoid agricultural employers having to provide decent wages and working conditions.” (Id.)

FAIR opposes the “Agricultural Worker Program Act” (S. 1034) amnesty bill.

Texas Senate Passes Bill to Reimburse for 287(G) Training

By: State & Local Government Relations

On May 9, the Texas Senate voted to create a program to reimburse local law enforcement for attending training conducted by the U.S. Immigration and Customs Enforcement (ICE) under the 287(g) program. (U.S. News, May 8, 2017) Congress created the 287(g) program in 1996 to allow the federal government to train state and local law enforcement officers in immigration law enforcement. The program’s name refers to the section in law that authorizes it. After state and local law enforcement officers complete the training, federal officials may deputize the officers to act as immigration agents.

The program greatly expands the federal government’s reach and manpower in immigration enforcement nationwide. (FAIR Issue Brief, Oct. 2, 2015) Although federal law explicitly states that a formal agreement with the federal government is not required for state or local enforcement to communicate or cooperate with federal officials in the identification, apprehension, detention, or removal of illegal aliens, the 287(g) program ensures state and local officers are adequately trained and allows them to engage in a wider range of enforcement activities. (INA § 287(g)(10); 8 U.S.C. § 1357(g)(10))

Costs associated with attending ICE’s mandatory training program are usually the greatest barriers for local law enforcement interested in becoming deputized. Because the program requires officers to travel and miss at least 4 weeks of work, many local agencies are forced to opt out of participating the program for budgetary reasons. Senate Bill (SB) 2094 lessens this burden by requiring the Texas Governor’s office to create a program to cover local agency’s expenses for the training. (SB 2094) SB 2094 provides funding to reimburse for an officer’s salary and any overtime costs required to cover the officer’s absence during the training period. (Id.)

SB 2094 is a part of the state’s larger initiative to strengthen immigration enforcement in the region. The Texas State Legislature passed a sweeping anti-sanctuary bill, SB 4, earlier in the month to promote public safety by prohibiting sanctuary policies and requiring law enforcement to cooperate with federal immigration officials. (FAIR Legislative Update, May, 9, 2017) Texas has been on the front lines in the illegal alien surge over the southern border in recent years. (FAIR Legislative Update, July 5, 2016) As a result, Texas taxpayers have fronted billions of dollars in costs associated illegal immigration, particularly with regard to law enforcement, education, and public benefits spending. (Id.)

The House of Representatives must approve SB 2094 before it can be sent to Governor Greg Abbott (R) for signature. Governor Abbott, a strong supporter of immigration enforcement, is expected to sign the measure. So far, only 13 counties in Texas have applied to participate in the 287(g) program this year. (Texas Observer, Mar. 22, 2017)