Legislative Update: 1/5/2016

Deportations Significantly Decline in 2015

As expected, the Obama administration continued its practice of releasing year-end removal numbers while most people are gone for the holidays. According to the fiscal year (FY) 2015 U.S. Immigration and Customs Enforcement (ICE) removal report — quietly released on December 22 — the Obama administration removed 235,413 illegal aliens, a 26 percent decrease from the 315,943 removed in FY2014. (2015 ICE Removals Report) Total removals have plummeted throughout President Obama’s second term, with ICE removing 368,644 illegal aliens in FY2013 compared to 409,849 illegal aliens in FY2012. (Id.)

Not only do the statistics show a drop in total removals, they also reveal that the Obama administration has essentially abandoned interior enforcement. Both the Border Patrol (which has jurisdiction at the border) and ICE (which has jurisdiction in the interior) have the authority to return aliens to their home countries, depending on several variables. In a concerted effort to pad removal numbers, the Obama administration for years has transferred custody of aliens apprehended by the Border Patrol to ICE for removal. The effect of this scheme is to make it appear that ICE is doing its job when in reality it is taking credit for work normally done by the Border Patrol.

A closer review of the data shows that hardly any illegal aliens are removed if they can successfully make it to the interior of the country. Of the 235,413 total ICE removals from FY2015, only 69,478 — or just 30 percent of the total — were interior removals. (2015 ICE Removals Report) Indeed, interior removals have declined every year under the Obama administration. During Obama’s first term, interior removals slightly dropped from 237,941 (FY2009) to 229,235 (FY2010) to 223,755 (FY2011) before plummeting to 180,970 (FY2012) while Obama was seeking reelection. (Id.) Interior removals have decreased exponentially in the second term: 133, 551 (FY2013); 102,224 (FY2014); and now only 69,478 (FY2015). (Id.)

Notably, ICE also deported fewer criminal aliens despite the Obama administration’s pledge to prioritize the removal of criminal aliens. During a December Senate Judiciary Committee hearing, true immigration reformer Sen. Jeff Sessions (R-AL) confronted ICE Director Sarah Saldaña with the dramatic decline in criminal alien deportations. (See FAIR Legislative Update, Dec. 8, 2015) Citing data he obtained from ICE, Sessions said “In [fiscal year] 2011, your agency, ICE, removed 150,000 criminal aliens from the interior, in fiscal year 2012 it dropped to 135,000, in fiscal year 2013 it dropped to 110,000, in fiscal year 2014 to 86,000, in fiscal year 2015 we believe the number is only around 63,000.” (Id.) Indeed, the official ICE removal numbers confirm that only 63,539 criminal aliens were removed from the interior in FY2015. (2015 ICE Removals Report)

To further illustrate the abandonment of enforcement under President Obama, FAIR has created a chart that reflects the declining removal numbers. To view the chart, click here.

Texas Files Brief Urging Supreme Court to Reject DOJ’s Appeal

On December 29, Texas Attorney General Ken Paxton filed a brief with the U.S. Supreme Court urging it to reject the U.S. Department of Justice’s appeal to allow the Obama administration to continue with its plan to shield roughly five million illegal aliens from enforcement of federal immigration law. (Brief, Dec. 29, 2015; New York Times, Dec. 29, 2015) The District Court for the Southern District of Texas put a temporary hold on the President’s proposed Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) program last February, ruling that the states opposing the executive amnesty would likely prevail in the lawsuit. (Opinion, Feb. 16, 2015) The hold was subsequently upheld by the U.S. Court of Appeals for the Fifth Circuit. (Opinion, Nov. 25, 2015) If implemented, the program will provide millions of illegal aliens work permits so they may compete with American workers for domestic jobs. (FAIR Legislative Update, Feb. 18, 2015)

Following the decision by the U.S. Court of Appeals for the Fifth Circuit to temporarily block implementation of President Obama’s amnesty program, the Department of Justice filed an appeal with the Supreme Court to override the Fifth Circuit’s opinion and allow the program to go into effect. The Fifth Circuit placed a hold on the program out of concern that it violates separation of powers principles established by the United States Constitution and unlawfully sidesteps notice and comment requirements established under the Administrative Procedures Act. (Opinion, Nov. 25, 2015)

In the brief, Texas Attorney General Ken Paxton contends the “Fifth Circuit’s decision is correct and that that blocking President Obama’s amnesty program is “necessary to uphold the separation of powers and ensure the proper functioning of the administrative state.” (Brief, Dec. 29, 2015) President Obama’s amnesty program, which was announced on November 20, 2014, is sweeping in scope and contradicts numerous federal laws as it provides lawful presence and eligibility for a variety of benefits to millions of illegal aliens, deemed ineligible under the current scheme dictated by Congress. (FAIR Legislative Update, Nov. 24, 2014)

The State of Texas is joined by 25 other states in the legal battle opposing President Obama’s executive amnesty that attempt to circumvent Congress and evade enforcement of federal immigration law. (Town Hall, Jan. 27, 2015) Executive actions related to the enforcement of immigration law, however, are often immune from judicial scrutiny because few individuals have standing to bring a case. To have standing, the potential plaintiff needs to show that they are personally injured by the laws or actions they are contesting and that the injury will continue unless a court grants the relief they are requesting. The states in this case have been able to demonstrate standing by showing how President Obama’s actions would force the states to spend money providing services to the illegal aliens, who will be considered to have lawful presence in the country if the President’s program goes into effect.

New Mexico Air Force Base to Start Housing UACs

Overwhelmed by the most recent surge of unaccompanied alien children (UACs) from Central America unlawfully crossing the Southern border, the Department of Health and Human Service (HHS) requested from the Defense Department assistance in housing the minors. (See FAIR Legislative Update, Dec. 15, 2015) In response, Defense Secretary Ashton Carter has directed Holloman Air Force Base in Alamogordo, New Mexico to house up to 400 UACs beginning in January. (Alamogordo Daily News, Dec. 24, 2015) According to Alamogordo Chamber of Commerce President Mike Espiritu — who is the primary point of contact for the UAC housing — the building the minors will be staying in has been “vacant for quite some time” and HHS determined “it’s feasible to provide temporary housing.” (Id.)

It remains unclear when the UACs will arrive or the length of their stay at the Air Force base. “We are not sure when kids will begin to arrive, they usually give a 30-day notice, and the impression is that the 30-day notice has already begun this month, so it will happen for sure some time in January,” Espiritu said. (Id.) “How long they will stay here is not definitive. The program in Artesia was for six months; we anticipate that it will be something close to that. That is not considered a permanent event, but a temporary event.” (Id.) Also unknown, is whether the federal government provided the New Mexico governor advanced notice of the decision to house UACs within the state. (See Breitbart News, Dec. 28, 2015)