FAIR Legislative Update May 21, 2012

House Passes VAWA, GOP Leaders Cave on Immigration

The House passed Wednesday evening its version of the Violence Against Women Reauthorization Act (VAWA), H.R. 4970, in a close 222-205 vote. (Politico, May 17, 2012)  Unfortunately, with regard to immigration, the final bill marked a distinct retreat from the original version House members introduced.

As introduced, H.R. 4970 would have taken steps to make the U visa a true non-immigrant visa. First, the original bill would have removed a provision from federal law that allows U visa holders to obtain legal permanent residency after three years, per the discretion of the Department of Homeland Security (DHS). Second, it would have prevented U visa holders from extending the temporary four-year visa period by an additional four-year period, as is permitted under current law. (See H.R. 4970 § 806 as introduced)  (To read more about the U Visa, see FAIR’s Policy Statement)

While the House Judiciary Committee, led by Chairman Lamar Smith (R-TX) passed this bill and sent it to the floor, House Leadership abruptly changed course.  According to news reports, the weekend before floor debate, House Leadership quietly invited outside groups — including the National Organization for Women and the National Coalition Against Domestic Violence — to the Capitol last weekend to develop an amendment package that would win their support. (Politico, May 15, 2012)

As a result, less than 24 hours before the floor vote, the House Rules Committee adopted a manager’s amendment offered by Rep. Sandy Adams, the author of H.R. 4970, which weakened several of the key immigration provisions in the original bill. (See House Rules Committee Website)

As amended and passed on the floor, the bill now provides that U visa holders will receive a green card if the offenders are aliens, are convicted, and are deported to the visa holder’s home country. Moreover, the amended bill reinstates a provision allowing aliens under the U visa program to extend their visa while waiting for a green card.   The amendment also weakens safeguards in the original bill to protect against fraud by lowering the standard of evidence required to demonstrate that aliens were indeed victims of crime before the government can cancel their deportation orders and grant them green cards. (See H.R. 4970 §§ 801, 806 as passed)

Despite these changes to the bill, President Obama has threatened to veto the House bill due to its immigration-related provisions, as well as unrelated provisions affecting tribal authority and the LGBT community. (Statement of Administration Policy, May 15, 2012) 

Adding to the fray, House Speaker John Boehner has raised concerns over a “blue slip problem” in the Senate-passed version, S. 1925. (CQ Today, May 18, 2012) Under the U.S. Constitution, all revenue raising legislation must originate in the House; however, the Senate bill raises visa fees to defray its cost of increasing the U visa. (See Art. I § 7)

It is now up to a House and Senate conference committee to draft a compromise of the chambers’ competing bills. However, it could be weeks before congressional leaders even name the conferees given the upcoming Memorial Day recess. Stay tuned to FAIR as details unfold…

Congress Passes Bill Cracking Down on Border Tunnels

Last week, Congress passed legislation that will expand existing laws to make it easier to prosecute people who facilitate and participate in illicit border tunnel activities.

The Border Tunnel Prevention Act (H.R. 4119) introduced by Rep. Silvestre Reyes (D-TX), passed the House on Wednesday by a vote of 416-4, and passed the Senate on Thursday by unanimous consent.  (See H.R. 4119 Major Actions)

Existing law only prohibits the use, construction, or financing of underground tunnels that bypass U.S. international borders. (See 18 U.S.C. § 555) The newly-passed legislation will also make it a federal crime to attempt or conspire to do so. (See H.R. 4119 at § 3) Penalties for attempt and conspiracy will be the same as existing penalties for use, construction, and financing of border tunnels. (Id.)

The bill will also amend existing federal law to add activities “relating to construction or use of international border tunnels” to the list of offenses which can be investigated via wiretapping by federal agencies. (Id. at § 4; see also 18 U.S.C. § 2516) 

The legislation now awaits President Obama’s signature. 

Alabama Governor Signs Bill Strengthening HB 56

Late Friday, Alabama Governor Robert Bentley signed HB 658, a bill that overall strengthens the State’s immigration enforcement law, HB 56.

The version of HB 658 Governor Bentley signed was almost unrecognizable from the bill as originally introduced. In April, Representative Hammon, the House author of HB 56, introduced HB 658, which attempted to gut key provisions of HB 56 and, in particular, tried to scale back the law’s penalties for employers that hire illegal aliens. (Montgomery Advertiser, May 11, 2012) Strongly supported by the business lobby, Rep. Hammon’s bill passed the Alabama House by a vote of 64-34.

However, when HB 658 arrived in the Senate, Senator Scott Beason, co-author of HB 56, offered a substitute amendment that stripped roughly 95 percent of the House language and replaced it with new language.  That new language was essentially the original text of HB 56 with only technical changes made to help the bill stand up in court.  The Beason amendment also added a few new provisions. One new provision requires the Alabama Department of Homeland Security to report information on illegal aliens who are detained and subsequently appear in court for violations of state law. Another new section requires the state Department of Revenue to conduct record searches to find multiple tax returns filed under the same Social Security Number to help spot identity theft. A third new section requires the Attorney General to defend Alabama law enforcement officers against actions brought by the United States Department of Justice.

While the Beason amendment substantially improves HB 56, the Legislatures also scaled back some of HB 56’s original provisions.  One change to HB 56 provides that public contractors are now only subject to suspension of their business licenses if a court finds that the employer has a “policy or practice,” meaning repeated violations, of the state’s prohibition against hiring illegal aliens.  The Legislature also changed how individuals may seek to enforce HB 56’s anti-sanctuary provisions.  Under the new law a U.S. citizen or legal alien is no longer able to bring a direct action against a public official but instead must petition the Attorney General or district attorney to bring an action against the official who allegedly is not enforcing the law.  Lastly, HB 658 removes the authority given to the Alabama DHS to request or inspect employment records related to possible violations of the law’s E-Verify mandate.

The Senate passed HB 658, as amended, last Wednesday—the last legislative day of the regular legislative session – by a vote of 20-7.  (See History for HB 658) The House concurred with the Senate’s changes by a vote of 67-37, and sent the bill to the Governor for his signature. (See HB 658 as enrolled; CNN, May 17, 2012)

At first, Governor Bentley refused to sign HB 658, calling instead for changes to several provisions. (See Governor’s Proclamation, May 17, 2012) Alabama legislators, however, declined to make any additional changes to the law. The Governor thus decided to sign HB 658 late Friday, saying he did not want the immigration bill to distract from other issues the Legislature needed to address during the special session. (The New York Times, May 18, 2012)

Milwaukee, Seattle Consider Anti-Detainer Ordinances

Two more of the country’s largest cities are on the path to passing anti-detainer ordinances: Milwaukee, WI and Seattle, WA.

Last week, the Judiciary, Safety, and General Services Committee of the Milwaukee County Board of Supervisors voted to advance by a slim four-to-three margin an ordinance that would limit the Sheriff Office’s (MCSO) ability to honor U.S. Immigration and Customs Enforcement (ICE) detainers. (Milwaukee Journal Sentinel, May 10, 2012; see also Milwaukee County Website)

Specifically, the proposed ordinance #12-135, provides the MCSO shall only honor an ICE detainer IF the alien:

• Has been convicted of at least one felony or two misdemeanors;
• Has been convicted or charged with any domestic violence offense or violation of a protective order;
• Has been convicted or charged with intoxicated use of a vehicle;
• Is a defendant in a pending criminal case, has an outstanding criminal warrant, or is an identified gang member; or
• Is a possible match on the U.S. terrorist watch list.

If passed, this ordinance would allow the County of Milwaukee to release criminal aliens back onto the streets, rather than releasing them into ICE custody.

According to news reports, however, Milwaukee Sheriff David A. Clarke, Jr. opposes the proposed ordinance and has suggested he may not be bound by the policy. (Milwaukee Journal Sentinel, May 10, 2012)The ordinance now goes to the Milwaukee County Board of Supervisors for adoption, although the agenda for its next meeting on May 24 has yet to be published. (See Milwaukee County Calendar)

Two thousand miles away, Seattle lawmakers are also coming under pressure from amnesty advocates to adopt an anti-detainer ordinance.  While the Kings County Council (where Seattle lies) has not yet taken up a bill, several of its pro-amnesty lawmakers are lobbying hard for an anti-detainer policy to supplement its 2003 sanctuary city ordinance.

Earlier this month, three of the council members sent a letter to County Executive Dow Constantine requesting a new policy against honoring ICE detainers on aliens who have not been convicted of a “serious” offense. (Seattle Times, May 8, 2012) Council members sending the letter included Council Chairman Larry Gossett, Larry Phillips, and Julia Patterson.

If Milwaukee and Seattle proceed to adopt anti-detainer policies, they will join the ranks of Cook County, IL; Santa Clara County, CA; San Francisco, CA; and New York City. (FAIR Legislative Update, Oct. 24, 2011)

Illegal Alien Discovered Working in Sensitive Areas of Major Airport

Federal authorities arrested an illegal alien last Monday after it was discovered he has worked at the Newark Liberty International Airport in New Jersey for the last 20 years. (CBS, May 15, 2012) Officials state that Bimbo Olumuyiwa Oyewole of Nigeria, who has lived in the country illegally since 1989, used fraudulent documents to get jobs that gave him access to sensitive areas of one of the busiest airports in the nation. (Id.)

Oyewole illegally purchased a birth certificate and social security number from a vendor dealing in document fraud in 1992. The documents were under the name of a now-deceased American citizen, Jerry Thomas, who had allegedly sold them to the vendor for cash. Oyewole’s fraudulent use of those documents allowed him to get credit cards, a New Jersey driver’s license, a state security guard license, and airport employee identification, all under Thomas’ name.  (Id.) Due to the fact that Jerry Thomas’ name did not carry any high-level criminal violations, Oyewole was even able to pass criminal history checks that required fingerprinting. (Id.)

Under Thomas’ name, Oyewole took several contract jobs within the Newark airport that allowed him access to the tarmac, passenger planes, and cargo. (Bloomberg Business Week, May 16, 2012) At the time of his arrest, Oyewole worked for a private security firm, FJC Security Services, where he supervised thirty other security guards. (Id.)

Specifically, the Subcommittee met on Wednesday to discuss a report issued by the Homeland Security Department’s Inspector General’s Office (OIG) on security breaches at Newark Liberty and other airports. (See Homeland Security OIG Report, May 2012)

According to the OIG report, TSA officials at Newark Liberty took corrective actions in less than half of the reported (42 percent) of the security breaches shown in its records. (Id. at p. 7)  The report also made several recommendations for TSA, including that TSA should revise its definition of “security breach” to ensure consistency and accuracy in reporting breaches, and that TSA should develop a comprehensive oversight program to report, analyze, and track breaches at all levels of government. (Id. at pp. 19-20) 

Subcommittee Chairman Mike Rogers (R-AL) expressed that he was “extremely [troubled]” by such reports of unauthorized access and other airport security oversights. (Bloomberg Transcript, May 17, 2012)

Agreeing with the Chairman, John Sammon, an Assistant Administrator for the Transportation Security Administration (TSA) testified that the system used to verify the identities and backgrounds of employees “still has gaps.” (Id.) Sammon explained that employees who have worked at Newark airport for a long time, like Oyewole, are considered “grandfathered,” meaning they have never had to resubmit to criminal background or immigration checks after their original hiring. (Id.; see also CBS, May 15, 2012)

A municipal court judge set Oyewole’s bail at $250,000. (Bloomberg Business Week, May 16, 2012)Immigration and Customs Enforcement (ICE) has also issued an immigration detainer for Oyewole. (Id.) His arraignment hearing is scheduled for June 18. (Id.)