Legislative Update: 6/30/2015 
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Legislative Update: 6/30/2015

 

DHS Reverses Course; Abandons Detention of Illegal Aliens with Minors

Department of Homeland Security (DHS) Secretary Jeh Johnson announced last Wednesday, through a press release, that he is ending the practice of detaining all illegal alien minors who unlawfully cross the border with a parent. Instead, illegal alien families apprehended at the border who establish a "credible fear" of persecution — the initial threshold for seeking asylum — will be released after posting a bond that is "reasonable and realistic." (DHS Press Release, June 24, 2015) In justifying the policy change, Secretary Johnson claimed "long-term detention is an inefficient use of our resources and should be discontinued." (Id.)

Under federal immigration law, the U.S. government can grant asylum to individuals who claim a fear of persecution or torture by their government. (See INA § 208(b)(1)(A); § 101(a)(42)(A)) However, aliens who simply arrive at the border without documents and claim asylum must first demonstrate a "credible fear of persecution" through a credible fear interview. (See INA § 208; 8 C.F.R. 208.30(d)) If an asylum officer determines there is no credible fear of persecution, the alien is immediately subject to deportation without a hearing, known as expedited removal. (INA § 235(b)(1)(B); 8 C.F.R. 235.3(b))

On the other hand, if the asylum officer determines the alien has established a credible fear of persecution, the officer will refer the alien to an immigration judge for a full asylum hearing. (INA § 235(b)(1)(B); 8 C.F.R. 235.3(b)) However, in this instance the INA explicitly states that the alien "shall be detained for further consideration of the application for asylum." (INA § 235(b)(1)(B)(ii))(emphasis added) However, over the years various administrations have utilized parole to release illegal aliens from detention prior to the full asylum hearing. Yet, parole is only supposed to be used in narrow circumstances "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." (INA § 212(d)(5); 8 C.F.R. 212.5(b))(emphasis added))

But despite the clear statutory language and relevant regulations limiting the instances where parole from detention may be granted for asylum seekers, the Obama administration expanded its application by executive fiat. Although the Bush administration utilized parole for certain aliens claiming credible fear, its application was limited. (See ICE Directive, Nov. 6, 2007) But through a 2009 policy directive, then-Immigration and Customs Enforcement (ICE) Director John Morton significantly expanded its use, authorizing parole for any asylum applicant with a "credible fear" who "presents neither a flight risk nor danger to the community." (ICE Directive, Dec. 8, 2009) And, as part of the November 2014 executive amnesty, DHS Secretary Johnson further expanded the category of illegal aliens eligible for parole to include aliens “who demonstrate that they are primary caretakers of children..." (DHS Memo, Nov. 20, 2014)

The newly announced policy will result in the release of most aliens claiming asylum who entered the country unlawfully because there has been a substantial increase in finding "credible fear" during the Obama administration. The threshold for establishing credible fear is supposed to be high — an asylum officer is only supposed to find it "if there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other factors as are known to the officer, the alien can establish eligibility for asylum" under INA Section 208. (8 C.F.R. 208.30(e)(2))(emphasis added) Despite this significant possibility standard, asylum officers found more instances of credible fear in 2013 than they did in 2007 through 2011 combined. (USCIS Memo, Feb. 28, 2014; see FAIR Legislative Update, Apr. 23, 2014) In fact, USCIS recorded a 250% increase in referrals of asylum claims to immigration judges between 2012 and 2013 alone. (Id.) And, with a current backlog of over 445,000 cases, it could take years before an immigration judge hears the initial claim for asylum. (See FAIR Legislative Update, May 27, 2015)

Unsurprisingly, once released, these illegal aliens do not show up for their hearings and disappear into the interior of the country. Last September, an ICE official revealed that 70 percent of illegal alien families who illegally crossed the border in 2014 failed to appear at required follow-up appointments with immigration agents 15 days after their release. (FAIR Legislative Update, Sept. 30, 2014) Now, newly released data from the Justice Department's Executive Office of Immigration Review (EOIR) show that since July 18, 2014, 84 percent of alien adults with children from Central America who were released pending trial absconded. (See Fox News, June 23, 2015) By comparison, the new EOIR data show that almost all of the illegal alien families who remained in detention pending review actually showed up before a judge. (Id.) This is consistent with a June 2014 ICE report that found that released illegal aliens consider the Notice to Appear (a document that instructs them to appear before an immigration judge at a future date) to be a "permiso," or permit to remain in the country. (FAIR Legislative Update, July 15, 2014)

The decision to end family detention, at the urging of open borders activists, is a significant shift in position compared to what Secretary Johnson has supported since 70,000 illegal alien family units surged over the Texas border last year. For example, last September Secretary Johnson pointed to the opening of family detention facilities in Artesia, New Mexico and Karnes City, Texas as an example of efforts the Obama administration was taking to deter illegal alien minors and their parents from unlawfully crossing the southern border. (See DHS Press Release, Sept. 8, 2014) Then, as the school year started, DHS touted the detention schools created for these illegal alien minors that included cable television, sports facilities, a computer lab, and cafeteria. (See FAIR Legislative Update, Oct. 28, 2014) Indeed, the DHS official in charge of the Artesia facility declared at the time that the facility "provides an effective and humane alternative to maintain family unity as families await the outcome of immigration hearings or return to their home countries." (ICE News Release, Oct. 9, 2014) Even as recent as last month, Secretary Johnson supported family detention when he simply announced that families detained more than 90 days will get expedited review of their asylum claims. (See DHS Press Release, June 24, 2015)

House Judiciary Chairman Bob Goodlatte (R-VA) blasted the administration for ending family detention. "The ongoing surge of Central American families and children arriving at our border is a crisis of President Obama's own making and today's announcement from the Department of Homeland Security only encourages more children and families to make the dangerous journey to the United States," Goodlatte charged. (Goodlatte Press Release, June 24, 2015) "By refusing to detain unlawful immigrants until their claims are proven legitimate, the Obama Administration is practically guaranteeing that they will disappear into our communities and never be removed from the United States." (Id.)

Remarkably, amnesty advocates say the ending of family detention does not go far enough. "This is a step in the right direction, but these policies should not have been in place from the beginning," said Bishop Eusebio Elizondo, the chairman of the committee on migration for the United States Conference of Catholic Bishops. (New York Times, June 24, 2015) Judiciary Ranking Member Sen. Pat Leahy (D-VT) said he was "cautiously optimistic" about the "small steps" but that they "must be implemented quickly, and only as a first step toward ending the misguided policy of family detention." (Id.)



Congress Passes Trade Deal that Could Increase Foreign Workers

After weeks of attempts to pass the fast track trade promotion authority (TPA), which could allow President Obama to implement parts of his immigration agenda through trade deals, Republican Congressional leadership pushed the trade deal through Congress. (The Hill, June 23, 2015, see FAIR Legislative Update, June 16, 2015) The President's trade agenda was widely considered to be stalled two weeks ago when companion legislation, the Trade Adjustment Assistance (TAA) failed to pass the House. (Id.) The House had agreed on rules that required both bills to pass to advance to the President's desk. (Id.)

Allying with the President on the issue of trade, however, House Speaker John Boehner (R-OH) managed to get the House to narrowly pass the TPA as stand-alone legislation on June 18, by 218-208. (USA Today, June 18, 2015; see Roll Call Vote #374) Though 50 Republican members went against the wishes of House Leadership and voted no, 28 Democrats voted yes to save the legislation. (Id.) The President then worked to get enough Senate Democrats on board to pass the House's version of TPA even without TAA included. (The Hill, June 23, 2015)

The Senate voted to proceed with debate on TPA (called cloture) by 60 to 37 — meaning that every vote for cloture was the deciding vote. (See Roll Call Vote #218) The vote count remained at 59 for several tense minutes on the Senate floor, indicating that many Senators voting for the TPA may have done so under pressure despite fear of backlash from their constituents. (See video) Ultimately, five Senate Republicans voted against the bill and 13 Democrats voted yes, the same members who had voted for the TPA in May. (See Roll Call Vote #176) Senator Ted Cruz (R-TX), who in May was a supporter of the TPA, voted against cloture last week, explaining that since the first vote, Wikileaks had revealed troubling details about the trade deals to be negotiated under TPA. (Breitbart.com, June 23, 2015) The draft of one of these deals, the Trade in Services Agreement, in fact contains provisions that explicitly contain changes to federal immigration law, despite the assurances of TPA supporters to the contrary. (Id.)

The next day, the Senate passed the TPA itself, 60 to 38. (See Roll Call Vote #219) The President signed it into law yesterday. (The Hill, June 29, 2015)



Goodlatte: Priority Enforcement Program will Result in the Release of Criminal Aliens

Last week, House Judiciary Committee Chairman Bob Goodlatte (R-VA) revealed that the newly launched Priority Enforcement Program (PEP) will result in the release of criminal aliens back onto the streets. The Department of Homeland Security started releasing details of PEP, the criminal alien identification program intended to replace the successful Secure Communities program, last week. (House Judiciary Committee Press Release, June 23, 2015; PEP Brochure, June 2015; see FAIR Legislative Update, Nov. 24, 2015) In response, Chairman Goodlatte explained that the PEP, though called the "priority" enforcement program, will actually ignore aliens that the government still considers a "priority" for enforcement. (House Judiciary Committee Press Release, June 23, 2015)

PEP's predecessor, Secure Communities, worked by comparing the fingerprints of individuals booked into state or local jails to federal databases and flagging those who were deportable aliens. (Id.; see FAIR Legislative Update, Nov. 24, 2015) Only a year ago, Homeland Security Secretary Jeh Johnson voiced support for the program as a way to identify those illegal aliens the Administration deemed deportable. (PBS News Hour Transcript, May 15, 2014) He said then: "In my judgment, Secure Communities should be an efficient way to work with state and local law enforcement to reach the removal priorities that we have, those who are convicted of something." (Id.) However, by November, the administration announced that it was disbanding the program as part of the President's executive amnesty. Secretary Johnson later justified by claiming the program was "politically and legally controversial." (See FAIR Legislative Update, Apr. 28, 2014)

To replace Secure Communities, DHS created PEP, a program designed to identify and work to remove only convicted criminals in federal prisons. (See FAIR Legislative Update, Nov. 24, 2015) First, according to the House Judiciary Committee, PEP will only allow Immigration and Customs Enforcement (ICE) to transfer aliens from state and local law enforcement custody if the alien has been convicted of a crime serious enough that the administration deems "significant." (House Judiciary Committee Press Release, June 23, 2015) That means if an illegal alien is arrested and charged with a crime, but is released from state or local custody before the conclusion of criminal proceedings, DHS will allow the illegal alien to remain on the streets until he or she is actually convicted. (Id.)

Second, PEP's implementation ignores the classes of aliens that DHS itself has defined as enforcement "priorities." (Id.) For example, the Obama administration still considers recent border crossers, aliens who illegally reenter after deportation, significant visa abusers, and aliens with final orders of removal to be removal "priorities." (Id.) But, according to PEP, if such illegal aliens are in state or local custody, they will be released and the administration will not begin deportation proceedings. (Id.)

Third, PEP implicitly authorizes "sanctuary city" policies by ending ICE detainers in nearly all situations. (Id.) ICE, rather than issuing detainers, will issue "Requests for Voluntary Notification of Release of Suspected Priority Alien" to state and local law enforcement. (Id.) In the rare cases where ICE does issue detainers, it will issue a form entitled "Immigration Detainer-Request for Voluntary Action." (Id.) This form contains a stringent checklist requiring DHS to tell the state or local jurisdiction exactly which enforcement priority the alien fits into as a method of holding ICE agents accountable for following the administration's priorities. (Id.)

Chairman Goodlatte blasted the administration for implementing a program designed to let criminal aliens onto the streets. (Id.) The "only priority contained in the Priority Enforcement Program," he said, is to ensure that our immigration laws are not enforced in the interior of the United States." (Id.) President Obama, he continued, is "needlessly endangering our communities" by "scrapping" an effective law enforcement tool and replacing it with a program that "permits the release of criminal aliens." Goodlatte also promised that the House Judiciary Committee would examine the PEP during an oversight hearing next month. (Id.)

The Administration has been on a campaign to persuade states and localities to cooperate with DHS in implementing PEP. (Id.; see FAIR Legislative Update, Apr. 21, 2015; Saldaña Testimony, Apr. 14, 2015) In April, ICE Director Sarah Saldaña told the House Judiciary Committee that an "increasing" number of jurisdictions — at that time over 200 — were either partially or wholly refusing to cooperate with ICE's enforcement efforts, and she hoped the implementation of PEP would stop the trend. (Id.) Yet, even though DHS has made PEP toothless, it has not had much success in getting these sanctuary jurisdictions to sign on. (House Judiciary Committee Press Release, June 23, 2015) According to the Committee, of all the sanctuary jurisdictions DHS has approached, it only managed to get Los Angeles County to join — and it is still unclear to what extent even Los Angeles County will adhere to PEP. (Id.; see also LA Times, May 12, 2015) DHS has not revealed just how far the lack of cooperation in the other sanctuary jurisdictions goes, such as whether these sanctuary jurisdictions have been refusing to identify criminal aliens using fingerprints altogether. As Chairman Goodlatte said in April to Ms. Saldaña, "politely asking" for cooperation rather than aggressively defending its own authority appears to be "a fool's errand." (FAIR Legislative Update, Apr. 21, 2015)



Delaware Senate Approves Bill to Give Driver's Licenses to Illegal Aliens

 On June 23, the Delaware Senate approved Senate Bill ("S.B.") 59 to allow illegal alien residents in the state to receive driver's licenses. The Senate voted 17-1 to advance the bill for approval in the House of Representatives. (WBOC, June 23, 2015)

S.B. 59 allows illegal alien residents of Delaware who have filed state income tax returns for the preceding two years to receiving driving privilege cards. (S.B. 59) If an illegal alien applicant has not submitted an income tax return, but was claimed as a dependent for the preceding two years, the applicant is also eligible for a driving privilege card. (Id.) In addition, S.B. 59 requires the state to keep all identifying information collected during the application process confidential and prohibits the driving privilege card from be used as a valid form of identification for any purpose. (Id.)The card must be marked "Not Valid for Identification" on its face. (Id.)

Senator Colin Bonini voted against S.B. 59 because he believed such legislation is unfair to taxpayers and legal immigrants. (Delaware Online, June 24, 2015) "We're asking Delaware taxpayers to pay half a million dollars for services for illegal immigrants," stated Senator Bonini. (Id.) Legal immigrants, he said, "are waiting in line, lawfully and legally, to get into this country." (Id.) Legislators estimate S.B. 59 to cost nearly $320,000 to implement the program, and about $113,000 annually to keep it running. (Id.) These costs would come on top of the $305 million Delaware taxpayers spend annually to subsidize illegal immigration. (FAIR, 2010)

Other opponents raised concerns that S.B. 59 will increase security risks, as driving privilege cards may be mistaken as a valid form of identification. A driving privilege card does not meet requirements set by federal law under the REAL ID Act to be used for federal identification purposes, which include boarding an aircraft or entering a federal building. (REAL ID Act of 2005) A Delaware driving privilege card differs from a standard Delaware driver's license because the driving privilege card may only be accepted for driving purposes only.

The House of Representatives must approve of S.B. 59 before the end of the legislative session on June 30, before the bill can be sent to Governor Jack Markell's desk for signature. If passed, Delaware will become the twelfth state to provide driving privileges to illegal aliens.