Legislative Update: 7/22/2014

Boehner Border Group Offers Principles, Not Legislation to Address Surge

The group of House Republicans Speaker John Boehner (R-OH) tasked with solving the surge of illegal alien minors at the Southern border has apparently come up with only policy principles rather than legislation. The group is led by Rep. Kay Granger (R-TX) and also includes Judiciary Chairman Bob Goodlatte (R-VA), Homeland Security Chairman Michael McCaul (R-TX), and Reps. John Carter (R-TX), Matt Salmon (R-AZ), Steve Pearce (R-NM), and Mario Diaz-Balart (R-FL). (Politico, June 24, 2014)

When Boehner created the working group, he fixed July 15 (last Tuesday) as its deadline for submitting recommendations. However, the working group submitted its recommendations to Boehner only last Thursday and then failed to make the document publicly available as initially promised.

Nevertheless, group member Rep. Salmon revealed some of the recommendations to reporters. First, the group suggests amending the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) to make it easier for unaccompanied alien minors to be returned home, regardless of their country of origin. (National Journal, July 17, 2014) Next, the group recommends mandating the detention of all alien children until they are seen by an immigration judge. (Id.) “This is a major, major change,” said Salmon. (Id.) “They will stay detained until they’re adjudicated.” (Id.) To expedite removals and limit detention time, the group recommends adding an unknown number of immigration judges and requiring hearings to be held within five to seven days of apprehension. (Id.) Finally, the group recommends deploying the National Guard to the border and “changing the narrative” through an advertising campaign in Central America. (Id.) Regarding funding, Salmon said the group will authorize “less than half” of President Obama’s $3.7 billion request. (Id.) Notably, the group fails to call to an end of Obama’s unilateral amnesty program known as Deferred Action for Childhood Arrivals (DACA).

The group’s leader, Rep. Granger, defended the development of principles, claiming legislation is forthcoming. Granger insisted a bill is currently being negotiated over “how broad or narrow the bill will be, how much we stick to just a few things or do we go into some wish lists of other members.” (breitbart.com, July 16, 2014) Similarly, Rep. Salmon defended the proposal’s omission of defunding DACA, which Sen. Ted Cruz has called for. “We had already submitted our report when Cruz said what he said,” Salmon insisted. (breitbart.com, July 17, 2014) “We signed off on it last night. It’s in the speaker’s hands.” (Id.) 

However, it appears that any legislation the group produces will not reflect true immigration reform principles. Indeed, Rep. Carter revealed that the group’s unreleased bill includes McCaul’s border bill (H.R. 1417), which is co-sponsored by fellow Texan and longtime amnesty advocate Rep. Sheila Jackson Lee (D-TX). (breitbart.com, July 17, 2014) Unfortunately, H.R. 1417 shares many of the same problems with the Senate amnesty bill (S. 744) and was even incorporated as the “border security” provision for House Minority Leader Nancy Pelosi’s (D-CA) “comprehensive” immigration reform bill (H.R. 15).

Yet, the likelihood of Congress addressing the surge of alien minors before the annual August recess appears in doubt. When asked whether legislation would pass by the end of the month, Boehner told reporters, “I would certainly hope so, but I don’t have as much optimism as I’d like to have.” (Roll Call, July 17, 2014) Boehner also would not commit to whether the House would approve additional funding without accompanying policy changes. Boehner said, “I don’t want to lock myself in,” but added, “I don’t know how you can address the problem down there without looking at the ‘08 law,” a reference to the 2008 TVPRA. (Id.) “I don’t know how Congress can send more money to the border to begin to mitigate the problem if you don’t do something about the ‘08 law that is being abused.” (Id.)

Over the weekend, the working group’s leader Rep. Granger said she plans on releasing the group’s recommendations this week. (Granger Press Release, July 18, 2014)

Senate at Impasse on Border Crisis Response

With few working days remaining before the annual August recess, the U.S. Senate is at an impasse on how to respond to the border crisis. On the one hand, Senate Democrats only want to provide money to handle the surge while Republicans insist on including policy changes to any additional funding bills. Further complicating things, Homeland Security (DHS) Secretary Jeh Johnson claims the Obama Administration wants Congress to amend the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) so it can expedite removals of illegal alien minors from Central America, but it has thus far failed to introduce any legislative text or policy statement to that effect. (See Politico, July 17, 2014)

Led by Senate Majority Leader Harry Reid (D-NV), Senate Democrats have taken the position that President Obama’s $3.7 billion supplemental spending request should be passed as a “clean” bill, meaning without policy changes. “My preference would be to pass the bill [as a] stand-alone bill. It’s emergency spending,” Reid said. (The Hill, July 10, 2014) Reid voiced opposition to a bill introduced by Sen. John Cornyn (R-TX) and Rep. Henry Cuellar (D-TX) that amends the TVPRA, definitively saying, “No, I won’t support it.” (Politico, July 15, 2014) Remarkably, Reid went further, declaring, “The border is secure,” a position not even DHS Secretary Johnson is willing to take in the midst of the surge of illegal alien minors overwhelming the border. (See Washington Times, July 15, 2014)

Other Senate Democrats also voiced opposition to amending the TVPRA as part of the Congressional response. Senator Dianne Feinstein (D-CA), who co-sponsored the TVPRA with Vice President Joe Biden, now says the law “is complicated. We don’t want to tinker with it.” (See National Journal, July 17, 2014) Gang of Eight leader Sen. Dick Durbin (D-IL) said, “I would hope that they would stick with the current law,” adding that he’s “worried” about the implications of changing the law. (Bloomberg Government, July 17, 2014) Likewise, Gang of Eight Sen. Bob Menendez (D-NJ) said, “I understand the desire to accelerate the process, but accelerating without due process is not acceptable.” (Associated Press, July 17, 2014)

Meanwhile, Senate Republicans are divided on which policy changes should accompany the additional funding. Senator Cornyn believes his bill amending the TVPRA is the answer but Senate Minority Leader Mitch McConnell did not fully endorse the Cornyn-Cuellar bill, merely saying he is “certainly open” to a bill that makes the policy changes contained in Cornyn-Cuellar. (Politico, July 15, 2014) Gang of Eight Sens. John McCain (R-AZ) and Jeff Flake (R-AZ) introduced their own revision to the TVPRA, called the CREST Act, which they claim will “both stem the present tide and prevent future waves of children from making the dangerous journey north.” (McCain-Flake Press Release, July 17, 2014)

On the other hand, true immigration reformer Sen. Jeff Sessions (R-AL) argued that Congress should not provide any additional money until Obama ends his unilateral amnesty programs. “Certainly, DACA and the President’s other numerous unlawful policies must be terminated,” Sessions wrote in a letter to every Member of Congress. (Sessions Letter, July 14, 2014) “But as a first step, Congress must not acquiesce to spending more taxpayer dollars until the President unequivocally rescinds his threat of more illegal executive action.” (Id.) Indeed, Sen. Ted Cruz (R-TX) introduced legislation last week to defund DACA, adding “We all recognize the terrible humanitarian crisis that is occurring at the border, and all of us should come together to end the policies that have caused it.” (Cruz Press Release, July 17, 2014) Unsurprisingly, pro-amnesty Gang of Eight Sen. Marco Rubio (R-FL) disagrees with GOP plans to dismantle DACA, warning that it would be “incredibly disruptive to try to repeal it for those who have already accessed the program.” (Politico, July 17, 2014)

According to sources, the Senate will address President Obama’s additional funding request this week while the House will take it up next week.

Stay tuned to FAIR as details emerge…

Cornyn-Cuellar Bill Adds Layers to an Already Complex Removal Process

On July 15, Senator John Cornyn (R-TX) and Rep. Henry Cuellar (D-TX) introduced legislation to address the flood of illegal alien minors across the southern border. The legislation has two major components. Title I focuses on amending the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P. Law 110-457). Title II incorporates House Homeland Security Chairman Mike McCaul’s Border Security Results Act of 2013 (H.R. 1417), minus Section 4, which is on biometric-entry exit.

Title I

Title I significantly changes how the Department of Homeland Security processes unaccompanied alien children. First, the Cornyn-Cuellar bill eliminates the distinction between countries of origin which allows Customs and Border Protection (CBP) to quickly return minors from contiguous countries (Mexico and Canada), but requires CBP to place children from all other countries in formal removal proceedings, which often takes years. 

The Cornyn-Cuellar bill, however adds a new, cumbersome layer to the way DHS processes illegal alien minors. As in current law (TVPRA 2008), the bill provides that within 48 hours of apprehension, CBP must screen all illegal alien minors, regardless of country of origin, to determine whether the minor:

1. Has been a victim of a severe form of trafficking;
2. Has a credible fear of persecution; and
3. Is unable to make an independent decision whether to withdraw his application for admission. (Under agency policy, the Border Patrol presumes that an alien under the age of 14 cannot make an independent decision to withdraw an application for admission).

Short process. If an illegal alien minor does not fall into one of these three categories and CBP determines he is inadmissible, CBP has the discretion, as current law allows for Mexican/Canadian minors, to: permit the illegal alien to withdraw his application for admission and return the alien minor to the country of origin.

Long process. If an illegal alien minor does fall into one of the three categories, instead of directly placing the illegal alien into removal proceedings under INA Section 240, the Cornyn-Cuellar bill adds a second layer of procedure to the removal process. First, CBP must place the illegal alien into a new proceeding governed by Section 235B (created in this Act). 

Section 235B Screening. For minors who fall into one of the three categories — including Mexican/Canadian minors — Section 102 creates a new process which requires an immigration judge to conduct another screening of the minors within seven days. It is not a hearing to determine whether to issue an order of removal.

The 235B screening process is similar to a removal proceeding — and incorporates much of existing law under INA 235 and 240 — but the illegal alien carries a lesser burden. For example, the illegal alien minor has the same privilege to be represented by counsel (at no government expense) and to review and present evidence, to cross-examine witnesses, etc., as in a formal removal proceeding. (INA 240(b)(4)) However, the illegal alien has a lesser burden of proof to be successful. Under 235B, the alien must only show by a preponderance of the evidence (not clear and convincing evidence, per current law) that he is either:

• “likely to be entitled to be lawfully admitted to the United States or eligible for any form of relief from removal” (compare to “is clearly and beyond doubt entitled to be admitted” and “is not inadmissible” (INA 240(c)(2)); OR
• Lawfully present in the U.S. pursuant to a prior admission (same as INA 240(c)(2)).

The judge must render a decision within 72 hours.

Burden not met. If the judge determines that the illegal alien minor has not met his burden, the judge shall order the alien removed without further hearing or review. However, if the alien fails to meet the burden but still indicates an intention to apply for asylum or a fear of persecution, the judge shall send the alien for an interview by an asylum officer.

If the asylum officer determines that the alien does not have a credible fear of persecution, the officer shall order the alien removed without further hearing or review (similar to current law). If the asylum officer determines that the alien has a credible fear of persecution, the alien shall be held in custody of the Department of Health and Human Services (HHS), pursuant to current law (TVPRA 2008 Sec. 235(b)). 

Burden met. If the judge determines that the illegal alien has met this burden, he must issue an order placing the minor in formal removal proceedings under INA Section 240. This means, as under current law, the illegal alien minor will receive a notice to appear in immigration court (initiating the formal removal process). Then the illegal alien minor will wait on average for three to five years for a judge to hold a hearing — which will be almost exactly the same as the process in 235B — and another immigration judge will finally decide whether to issue a final order of removal for the alien.  

Custody. Until the judge determines that the alien has met the required burden of proof under 235B, the Cornyn-Cuellar bill provides that the alien shall not be placed in the custody of a “non-governmental sponsor or otherwise released from custody of the U.S. government.” Note, however, Cornyn-Cuellar does not strike the language from current law that requires DHS to transfer custody of UACs to HHS within 72 hours. (TVPRA 2008 Section 235(b)(3)) Nor does Cornyn-Cuellar strike language in current law that provides that an illegal alien minor in HHS custody “shall be promptly placed in the least restrictive setting that is in the best interest of the child,” or the language that provides “a child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” (TVPRA 2008 Sec. 235(c)(2))

Second Chance for Illegal Alien Minors who Entered On/After January 1, 2013. Like the process that gives illegal alien minors two chances to appear before an immigration judge, the Cornyn-Cuellar bill gives illegal alien minors who recently entered the U.S., including those who have already been issued a final order of removal, another chance to gain admission to the U.S.

Section 103 of the bill provides that, beginning 60 days after enactment, an illegal alien minor who received a notice to appear between January 1, 2013 and the date of enactment may appear before an immigration judge and file motions to:

1. Expunge the notice to appear;
2. Expunge any final order of removal issued during the same period of time; and
3. Apply for admission to the United States by being placed in proceedings under 235B (as discussed above).

If the immigration judge grants the motions (presumably a combination of them), the very same judge shall then conduct a 235B proceeding while the alien is present.

Additional Judges. Section 104 of the Cornyn-Cuellar bill requires the Department of Justice, within 14 days of enactment, to designate up to 40 immigration judges, including through the hiring of retired immigration judge or reassignment of current judges to conduct Section 235B proceedings. This addition, while needed to fuel the additional layer of process created under the new Section 235B of the INA, may hamper the ability of the Department of Justice to find judges for the formal removal proceeding under INA 240.

Guardians of Minors. Section 105 of the Cornyn-Cuellar bill requires HHS to do criminal history checks using digital fingerprints or “other biometric identifiers” on proposed guardians of unaccompanied alien minors. It also prohibits HHS from placing an unaccompanied alien minor in the custody of an individual who has been convicted of a sex offense or a crime involving a severe form of trafficking (both as defined by current law).

Title II

Title II of the Cornyn-Cuellar bill is comprised of House Homeland Security Chairman Mike McCaul’s Border Security Results Act of 2013 (H.R. 1417), minus Section 4, which relates to biometric entry-exit. FAIR has drafted an extensive analysis of H.R. 1417 and opposes this bill. 

Intelligence Report: Immigration Policy, Not Violence, Is Primary Reason for Border Crisis

A leaked government report by the El Paso Intelligence Center (EPIC) found that perceptions of U.S. immigration policy, not violence, is the primary factor causing the Central American migrant surge. (EPIC Report, July 7, 2014; see also Breitbart News, July 14, 2014)

EPIC is a regional intelligence center run by the Drug Enforcement Administration (DEA) that collects and disseminates tactical information to law enforcement. (SeeDEA website) A variety of federal, state, and local law enforcement entities including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Texas Department of Public Safety, and the El Paso County Sheriff’s Office, are represented at EPIC. (Id.) 

Prepared by the Criminal Threats Unit of the Strategic Analysis Section of EPIC, the report based its conclusions on interviews of migrants by Border Patrol officers as well as statistical research. (EPIC Report at p. 6, July 7, 2014) According to the report, U.S. Border Patrol conducted interviews in May 2014 of 230 migrants apprehended in the Rio Grande Valley. The vast majority — 219 migrants — said that their primary reason for traveling to the United States was the perception that unaccompanied minors and adult women traveling with minors would receive free passes to stay in the United States. (Id. at p. 2) The report indicated that “word of mouth, local, and international media messaging” encouraged many to depart within thirty days of hearing about these passes. (Id.)

However, the EPIC report indicates that there was a decline in per capita homicide rates in El Salvador, Honduras, and Guatemala, according to United Nations Office on Drugs and Crime statistics from early fiscal year 2011. (Id. at p. 2) El Salvador had the sharpest decline, and Honduras had the second sharpest decline. The EPIC report notes that the 2011 MS-13 and Calle 18 gangs agreed to a truce with the government “most likely” caused the decline in homicides in El Salvador. (Id. at p. 2) Although other than Mexican and unaccompanied minor migration steadily increased during fiscal year 2011, the EPIC report concludes that the migrant interviews and statistics indicate that “violence is likely not the principal factor driving the increase.” (Id. at p. 2)

The EPIC report was part of the discussion at a recent Senate Committee on Homeland Security and Governmental Affairs hearing about the root causes of the current border crisis. (See Senate Homeland Committee website, July 16, 2014) Citing the report, Ranking Member Tom Coburn (R-OK) said, “when you ask the people that are coming here when they’re intercepted by the Border Patrol, ninety percent think there’s a free pass.” (Id.) At the hearing, economist Bryan Roberts presented his statistical analysis of the murder rates, which, like the EPIC report, also questioned the assertion that violence was the precipitating cause of the influx of minors. Roberts concluded that crime “cannot explain why the surges from El Salvador, Guatemala, and Honduras began when they did.” (Roberts testimony, July 16, 2014) Although the other three witnesses addressed economic and social strife in Honduras, Guatemala, and El Salvador, none of them could point to a precipitating violent event triggering the surge. (See Senate Homeland Committee website, July 16, 2014)

Obama Reaffirms Commitment to Expanding Administrative Amnesty in August

President Obama assured the Congressional Hispanic Caucus (CHC) in a closed door meeting last week he still plans on taking action later this year to further expand his administrative amnesty. (huffingtonpost.com, July 17, 2014) The private promise to the CHC comes just after the President requested an additional $3.7 billion from Congress to address the unprecedented surge of illegal alien minors overwhelming the Southern border. Despite Administration claims that violence in Central America is causing the surge, evidence continues to point to President Obama’s lax immigration policies, including the program for young people known as Deferred Action for Childhood Arrivals (DACA), as the driving force. (See FAIR Legislative Update, July 15, 2014)

After the meeting with the President, CHC members say Obama is fully committed to using executive action to ease deportations. Longtime amnesty advocate Rep. Luis Gutierrez (D-IL) paraphrased Obama as telling the CHC, “I want to be as broad as I can be. I want to be as generous as the law will allow me to be.” (huffingtonpost.com, July 17, 2014) Gutierrez further revealed that Obama instructed Homeland Security Secretary Jeh Johnson and White House Counsel Neil Eggleston to work with the CHC to find ways the President can unilaterally keep illegal alien families in the country. (Real Clear Politics, July 17, 2014) Indeed, the National Journal reported several weeks ago that Obama promised pro-amnesty lobby groups in another closed door meeting that he would unilaterally grant amnesty to five-to-six million illegal aliens through a program similar to DACA. (See National Journal, July 3, 2014) As Representative Joe Garcia (D-FL) stated, “The moment has come for him to act, and he agrees.” (Id.)

Senator Cruz Introduces Bill to Repeal DACA

Last week, Republican Senator Ted Cruz, whose home state of Texas is at the center of the border crisis, introduced legislation that would stop the Deferred Action for Childhood Arrivals program (DACA). 

DACA is the Obama Administration’s program, created through a policy memo, that grants deferred action to illegal aliens who claim they arrived in the U.S. as minors. (Napolitano memo, June 15, 2012) In general, to qualify for DACA an illegal alien must claim to have been 30 years old or younger when the program was initiated and have arrived in the U.S. before turning sixteen years old. (See USCIS DACA webpage, updated June 5, 2014) Under the program, a granting deferred action means that the government has deferred any removal of the alien, in two-year renewable increments, and provides the alien work authorization. (Id.)

When President Obama announced the creation of DACA, many Members of Congress decried the move as an unconstitutional circumvention of Congress and an unbridled attempt to use executive authority for political gain. Congress had rejected the DREAM Act at least three times, most recently in 2010. Moreover, they pointed out that there is absolutely no statutory basis for deferred action status; it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14))). Even more troubling, deferred action is not subject to judicial review. (Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 492 (1999)) (See FAIR Legislative Update, June 19, 2012)

Now, two years after its creation and with illegal alien minors flooding the U.S. border, Senator Cruz is attempting to put an end to DACA. His straightforward, two-page bill provides that no “agency or instrumentality” of the federal government may use government money or resources to:

1. Consider, adjudicate any new or previously denied DACA application; or
2. Authorize any alien to work in the U.S. if such alien was not lawfully admitted into the U.S. under federal law and is not “in lawful status” in the United States on the day of enactment.

The last provision, regarding lawful status, seeks to target a specific distinction the Obama Administration and immigration attorneys have made regarding terminology. That is, in the June 15, 2012 memo that created DACA, Homeland Security Secretary Janet Napolitano’s clearly stated that granting deferred action conferred no “immigration status” on an illegal alien and that only Congress could confer such lawful status. (Napolitano memo, June 15, 2012) However, the administration also declared (by executive fiat) that the presence of DACA aliens in the U.S. “is authorized by the Department of Homeland Security,” and, for admissibility purposes, DACA beneficiaries (although still illegal aliens) are considered to be “lawfully present” in the U.S. (See, e.g., USCIS Frequently Asked Questions on DACA, updated June 5, 2014) This decree that DACA aliens are lawfully present prevents certain bars to admission from applying to these illegal aliens, should they apply for admission to the U.S. at a future date. (See, e.g., INA(a)(9)B))

In a statement upon introducing his bill, Senator Cruz made it clear that President Obama’s immigration policies, including DACA, were the cause of our current border crisis. “Since his unilateral action in 2012 to implement DACA,” Cruz said, “the numbers of children arriving in the U.S. illegally — transported by dangerous criminals and drug cartels eager to exploit President Obama’s amnesty — predictably exploded…” (Ted Cruz press release, July 17, 2014) He also offered the following facts:

• In 2011, approximately 6,000 unaccompanied minors came to the United States.
• In 2012, when President Obama issued DACA, the number of unaccompanied minors arriving in the United States rose to 14,000.
• In 2013, the number of unaccompanied minors arriving in the United States rose to 34,000.
• In 2014, Customs and Border Protection estimate 90,000 unaccompanied minors may be apprehended.
• In 2015, the Obama Administration has stated it expects 145,000 unaccompanied minors to enter the United States. (Id.)

Cruz concluded that the only way to stop the current border crisis is to stop DACA. “If we do not put an end to its expansion — to the promise of amnesty that is the reason so many are coming — then more little boys and girls will be trafficked, abused, and even killed,” said Cruz. “We have an obligation to make sure that not one more child is hurt by this president’s lawlessness.”

Not surprisingly, reaction from Senate Democrats was swift. Senate Majority Leader Harry Reid (D-NV) blasted Senator Cruz for attempting to end DACA. Reid accused Cruz of trying to deport children who are “legitimately” in the country. (Senator Reid’s floor statement, July 17, 2014) “Before Republicans help our Border Patrol agents and all the personnel that’s trying to do something to handle this humanitarian crisis, they want President Obama to deport the DREAMers who are already here, legitimately here,” Reid said. (Id., emphasis added) 

Cruz’s bill was one of several introduced by Senators and Representatives this week. However, both on the Senate side and House side, leaders gave little indication of which route they plan to take. Debate over these bills, and the President’s $3.7 billion funding request (which lacked any policy changes), is expected to take center stage next week when Congress returns to Washington.

House Appropriators Introduce Bill to Narrow 2008 Anti-Trafficking Law

Last Thursday, three members from the powerful House Appropriations Committee introduced legislation that would narrow the application of the 2008 anti-trafficking law. That law, called the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (known as TVPRA) strictly dictates the process through which the government processes, detains, and removes illegal alien minors who are defined as “unaccompanied” under the law. (Public Law 110-457; For a useful “redlined” version that shows the original 2000 bill plus amendments through 2013, see also Johns Hopkins Protection Project document) 

When adopted, TVPRA created two paths for unaccompanied illegal alien minors caught by the Border Patrol, depending on their country of origin. Section 235 of the Act requires the Department of Homeland Security (namely the Border Patrol) to screen apprehended unaccompanied minors within 48 hours. In general, if the Border Patrol determines the minor is from a contiguous country (Mexico or Canada), has not been a victim of trafficking, and has no credible claim to asylum, the Border Patrol may promptly return the alien minor to Mexico or Canada without formal proceedings. (Sec. 235(a)) However, if the Border Patrol determines the minor is from a non-contiguous country — i.e. a country that does not share a land border with the U.S. — the Department of Homeland Security must initiate formal removal proceedings (under INA Section 240) and, within 72 hours, transfer custody of the minor to Health and Human Services (HHS) for care while awaiting a hearing. (Sec. 235(a)(5)(D)) This process usually takes years, which, in combination with the President’s non-enforcement policies, has encouraged illegal alien minors to flow across the southern border in record numbers.

To tackle this inefficient and frequently abused process, the introduced by Reps. John Carter (R-TX), Robert Aderholt (R-AL), and Jack Kingston (R-GA) amends TVPRA to increase the number of minors who may be returned quickly without formal proceedings. First, the bill ends the distinction related to the minors’ country of origin, requiring the Border Patrol to process alien minors from all countries the same as minors from Mexico. (Sec. 2(a)(1)) It also eliminates the requirement that an alien minor must be independently capable of withdrawing his or her application for admission to the U.S. (Id.) Under Border Patrol policy, this provision has generally prevented the Border Patrol from quickly returning Mexican minors under 14 years old. 

Thus, under the Carter-Aderholt-Kingston bill, any unaccompanied alien minor who illegally crosses the border will be screened within 48 hours (per current law) to determine whether the alien is a victim of a severe form of trafficking or has a credible asylum claim. If not, Homeland Security shall return the alien to the alien’s country of origin by either allowing the alien to withdraw his or her application for admission, conducting a voluntary return, or otherwise removing the alien from the U.S. If there is evidence of trafficking or a credible asylum claim, DHS shall (as in current law) place the alien in formal removal proceedings.

For aliens placed in formal removal proceedings, the Carter-Aderholt-Kingston bill seeks to speed up that process and increase the likelihood of removal for aliens who do not have legitimate claims for relief. First, the bill requires that formal removal proceedings for alien minors take place within 14 days of the Border Patrol screening. (Id.) Second, the bill strikes the existing requirement that DHS to transfer custody of alien minors to HHS within 72 hours. (Sec. 2(a)(2)) Instead it allows DHS to maintain custody of the illegal alien minor — for up to 30 days. (Id.) Thus, if the immigration judge in the removal hearing finds the minor has no legitimate claim for relief, DHS still has custody of the minor and can immediately remove him or her from the U.S. Third, the bill requires the Department of Health and Human Services (HHS) to transfer information regarding family members or guardians with whom any illegal alien minors may be placed. (Id.) The bill then requires DHS to investigate the family members’ of guardians’ immigration status and initiate removal proceedings against aliens illegally in the U.S. (Id.) This provision is intended to deter the practice of illegal alien parents in the U.S. from paying drug cartels to smuggle their minor children into the country. The bill is retroactive to June 15, 2012 — the date President Obama announced his Deferred Action for Childhood Arrivals program (DACA). (Sec. 2(b))

The Carter-Aderholt-Kingston legislation is one of several bills Members of Congress have introduced in the past week. However, it is uncertain whether House Republican Leadership will take up any of these bills. The House working group on the border crisis (see FAIR Legislative Update, June 2014) was scheduled to release its recommendations for action last Wednesday, but so far it appears the group has not come to a consensus and has not released anything. (National Journal, July 17, 2014) While these recommendations are expected this week, only a few days ago, House Speaker John Boehner indicated he is not certain that the House will pass any legislation regarding the border crisis before Congress recesses in August, pointing to Democrats for their intransigence on refusing to accept any policy changes. (Politico, July 17, 2014) 

ACLU Lawsuit Seeks Taxpayer-Funded Lawyers for Illegal Alien Minors

On July 9, the American Civil Liberties Union (ACLU) sued the Departments of Justice, Health and Human Services, and Homeland Security, seeking to force the government to pay for attorneys of illegal alien minors in deportation proceedings. (ACLU Complaint, July 9, 2014; The Hill, July 9, 2014; Wall Street Journal, July 9, 2014) Joined by the Northwest Immigrant Rights Project, Public Counsel, and American Immigration Counsel, the ACLU filed a complaint in the United States District Court of the Western District of Washington raising both constitutional and statutory claims. (Id.) In its complaint, the ACLU argues that the U.S. Constitution requires the provision of legal representation at government expense for immigration proceedings. (See ACLU Complaint at p. 25)

Courts have repeatedly rejected claims based on the Sixth Amendment right to counsel — the commonly understood right to counsel at government expense for indigent defendants — for immigration proceedings. (See U.S. Const., 6th amend.; Gideon v. Wainwright, 372 U.S. 335 (1963); CRS Report at p. 6, fn. 40; see also Baltazar-Alcazar v. INS, 386 F.3d 940, 944 (9th Cir. 2004) (“there is no Sixth Amendment right to counsel in an immigration hearing”)) This is, in part, because the Sixth Amendment right to counsel applies to criminal cases, which are different than immigration proceedings. (See U.S. Const., 6th amend.) Notably, the Supreme Court held that “[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.” (See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984))

However, instead of raising a Sixth Amendment claim, the ACLU argues that the Due Process Clause of the Fifth Amendment gives alien minors a right to counsel because immigration proceedings are “adversarial” and “complex.” (See ACLU Complaint at p. 8) By contrast, every published court case to date has rejected the view that the Due Process Clause requires the appointment of counsel at government’s expense for immigration proceedings. (See CRS Report at p. 9) Even a court in the Circuit where the ACLU filed its case rejected the specific claim that unaccompanied alien children have a right to government-appointed counsel in immigration court. (See Gonzalez Machado v. Ashcroft, No. CS-01-0066-FVS (E.D. Wa. June 18, 2002))

Instead, courts have interpreted the Fifth Amendment Due Process Clause to mean that aliens have a right to present evidence and be heard in immigration proceedings (See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)), but the alien’s right to obtain counsel encompassed by that right is only at the alien’s own expense. (SeeOrantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990)) Furthermore, the ACLU’s characterization of immigration proceedings fails to accurately account for the role of immigration judges. Unlike in a criminal proceeding, the judge in immigration court develops the record by receiving evidence and interrogating any witnesses. (See 8 CFR § 1003.10(b)). According to court guidelines, judges ensure that immigration proceedings have a “ ‘child appropriate’ hearing environment” which allows “a child to discuss freely the elements and details of his or her claim.” (See EOIR Memorandum 07-01 at p. 2)

The ACLU also claims that the Immigration and Nationality Act (INA) mandates that the government provide legal representation for all alien minors in immigration proceedings. (ACLU Complaint at p. 25) Specifically, the ACLU relies on a provision of the INA relating to an alien’s requirement for a reasonable opportunity to examine and present evidence. (See ACLU Complaint at p. 25 (citing INA § 240(b)(4)(B))) However, the INA specifically states that in removal proceedings, “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings.” (INA § 240(b)(4)(A)) That provision only grants counsel as a privilege at the alien’s expense, and elsewhere the INA repeats the requirement that counsel be at “no expense to the Government.” (See INA § 240(b)(4)(A)(for removal proceedings); INA § 238(b)(4)(B) (for expedited removal proceedings); INA § 292 (for appeals)).

The INA does place requirements on the government with regard to alien’s counsel. The INA requires that immigration judges permit aliens time to locate counsel. Furthermore, the Attorney General is required to make lists of attorneys willing to represent aliens “pro bono” available. (See INA § 239(b); see also 8 CFR § 1240.10(a)(2)(providing that immigration judges advise aliens about available free legal services)) But these requirements do not make sense as applied to appointed counsel at government expense. If Congress intended to provide for counsel in removal proceedings in the INA, Congress would have expressly indicated such a requirement in Section 240 (normal removal proceedings), as it did for Section 504 (the Alien Terrorist Removal Court). (See INA § 504(c)(1)); see also Administrative Office of U.S. Courts website)

Moreover, Congress has repeatedly expressed the view that illegal aliens should not receive government-funded counsel. Using an appropriations rider since 1996, Congress has prohibited recipients of Legal Services Corporation grants from providing legal aid on or behalf of illegal aliens, limiting representation to citizens and legal aliens as clients. (See Pub. L. 104-134, § 504(a)(11) (1996) as modified by Pub. L. No. 105-119, § 502 (1997) and incorporated by reference by Pub. L. 113-76 (2013); see also 45 CFR § 1623.6.) Even the ACLU admits in its complaint that as recently as May 15, 2014, the House Committee on Appropriations expressed its view that the federal government should refrain from funding legal representation of aliens in removal proceedings. (See ACLU Complaint at p.14 (citing H.Rept. 113-348 at p. 42 (2014))

A Justice Department spokeswoman said the agency is “reviewing the complaint and will not comment further on matters in the initial stages of litigation.” (Wall Street Journal, July 9, 2014) The government’s response to the ACLU’s complaint is due on September 7.

Immigration Officials Release Jose Vargas Again

Last week, the U.S. Border Patrol released Mr. Jose Antonio Vargas, an admitted illegal alien and felon, from his eight hour detention after he tried to pass through an airport checkpoint in the border city of McAllen, Texas. (New York Times, Jul. 15, 2014; CNN, Jul. 15, 2014; Washington Post, Jul. 15, 2014) The Border Patrol released him on his own recognizance after a consultation with Immigration and Customs Enforcement (ICE), with only a Notice to Appear before an immigration judge. (Id.) ICE had previously come into contact with Mr. Vargas in 2012, after the Minnesota State Patrol arrested him for driving with a revoked license, and called the agency. (See FAIR Legislative Update, Oct. 15, 2012; Star Tribune, Oct. 6, 2012; New York Times, Oct. 8, 2012) After his arrest, Minnesota State police officers booked him into the county jail, where ICE agents questioned him but decided not to detain him or file any immigration charges. (Id.)

Mr. Vargas first made the news as a cause célèbre among open borders activists in June 2011 when he wrote a story for the New York Times Magazine not only admitting that he is an illegal alien, but describing the multiple crimes he has committed in order to stay and work in the United States as a journalist. (See FAIR Legislative Update, Oct. 15, 2012; New York Times Magazine, Jun. 22, 2011) In the article, he admitted to five felonies: 1) knowingly using forged employment documentation; 2) falsely representing that a Social Security Number was his own; 3) knowingly using a Social Security Number obtained by another through false information; 4) knowingly altering a Social Security Card; and 5) falsely claiming citizenship on I-9 forms. (FAIR Legislative Update, Oct. 15, 2012) He also admitted to two state misdemeanors through knowingly submitting false information to obtain a driver’s license in both Washington and Oregon. (Id.)

In the years since, Vargas has continued to promote his celebrity status as an illegal alien living in the open under the Obama Administration. In June 2012, he expressed pride in an article for Time Magazine that his actions have encouraged other illegal aliens to admit their illegal status publicly. (Time Magazine, Jun. 25, 2013) Last month, CNN aired the pro-amnesty film he wrote and directed about his life story. (CNN, Jun. 30, 2014) During his recent trip to McAllen, he called himself “the most privileged” of all the illegal aliens in the country, and claimed that the visibility has protected him. (Politico Magazine, Jul. 11, 2014)

Vargas’ latest appearance in the news resulted from his decision to extensively publicize his participation in protests on behalf of the illegal border crossers flooding into the country. (Politico Magazine, Jul. 11, 2014) While such protests have been organized by open borders groups in many places in the country, Mr. Vargas wished to attend one at the epicenter of the crisis in the Rio Grande Valley. (LA Times, Jul. 16, 2014; LA Times, Jul. 15, 2014) Mr. Vargas claimed in an article called “Trapped on the Border,” published during his trip, and in an interview with the Dallas Morning News that he did not consider that the security at the airport in McAllen might be tighter in the midst of a border crisis.(Politico Magazine, Jul. 11, 2014; Dallas Morning News, Jul. 13, 2014) As a Philippine national who has been travelling for years through American airports by showing the valid passport issued by his home country, he generally trusts that Transportation Security Administration (TSA) agents will simply wave him through though his passport lacks a visa. (Id.)

A few days after publishing the article about his “plight,” Mr. Vargas was indeed detained by the Border Patrol for less than a day after a Border Patrol Agent at the airport asked for his visa. (Washington Post, Jul. 15, 2014) Before entering security, he tweeted a picture of his Philippine Passport next to a pocket U.S. Constitution, neither one of which in fact demonstrated a right for foreign nationals to live in the country. (Id.) He wrote “I don’t know what’s going to happen,” and asked those interested to follow his non-profit’s twitter feed. (Id.) Upon his release at the direction of ICE, he released another statement blaming “parts of America and the news media” for turning their backs on minors entering the country illegally. (Id.)

Mr. Vargas, who last week insisted that the incident “wasn’t a stunt,” now presumably has a Notice to Appear in front of an immigration judge on some date in the future. (CNN, Jul. 17, 2014) As he does not yet appear to have shared a photo of this notice on social media, the actual day on which he must present himself to an immigration judge is still unknown. (Jose Vargas Twitter feed; Define American Twitter feed; Minority Affairs Council Twitter feed)

Polls Show Americans Are Troubled by the Immigration Crisis

A Gallup poll of adults conducted on July 7-10 shows that, as illegal alien minors and families stream over the border, the percentage of Americans citing immigration as the country’s top problem has surged to 17%, up from only 5% last month and 3% at the beginning of the year. (Gallup, Jul. 16, 2014) More Americans rated immigration as the top problem than any other issue. (Id.) Republicans, at 23%, were twice as likely as Democrats, at 11%, to mention the issue. (Id.)

Meanwhile, a poll of likely voters by Rasmussen conducted on July 15-16 also shows that Americans are playing close attention to the crisis on the border. (Rasmussen Reports, Jul. 17, 2014) A full 83% say they have been following the situation, with 51% saying they have been following very closely. (Id.)

Results of the Rasmussen poll also show that Americans strongly prefer enforcement to amnesty for the recent arrivals, with 59% saying that new legislation passed by Congress should primarily focus on sending the illegal minors home as quickly as possible, and only 27% saying it should focus on making it easier for them to remain in the United States. (Id.) Strong majorities of both Republicans (85%) and voters unaffiliated with either party (61%) want the illegal aliens sent home quickly, but Democrats are split, with 46% wanting them to stay and 36% wanting them to return. Generally, voters also do not want the illegal aliens housed in their own state, with 57% disapproving and 29% approving. (Id.) In addition, when asked about whether to approve of the $3.7 billion request by the President if it does not speed deportations of the minors, 40% said no, 34% said they were unsure, and only 26% said yes. (Id.) At 52%, a majority also believes that the border crossers are coming here for economic reasons, with only 31% believing they are coming for their own safety. (Id.)

A third recent poll, conducted by Washington Post-ABC News among adults on July 9-13, shows that Americans are dissatisfied with the way the crisis is being handled by their leaders. (Washington Post, Jul. 15, 2014) Only 33% of Americans approve of how the President is handling the issue. (Id.) However, among Democrats, the President’s approval rating on the issue is much higher, at 57%. (Washington Post, Jul. 15, 2014)

In the Washington Post-ABC News poll, Congressional Republicans fare worse than the President, yet unlike the President, they also have low ratings by their own party. (Id.) Only 23% of Americans approve of Congressional Republicans’ handling of the crisis. (Id.) However, Congressional Republicans get only 48% approval rating from Republicans. (Id.) These results suggest that while the President may not improve his approval ratings on the issue by moving towards the consensus position of his own party, Congressional Republicans can.

Texas City Passes Resolution to Prevent Transfer of Illegal Aliens into Community

On Tuesday, July 8, League City, Texas passed a resolution to prohibit the transfer of illegal aliens into their community. (Click2Houston, Jul. 8 2014) The resolution, adopted by a 6-2 vote, was a response to the mass influx of illegal aliens from Central America, including large numbers of unaccompanied alien minors, and the perceived federal government’s mismanagement of the crisis. (Id.)

The League City resolution directs the city’s agencies to refuse any request or directive by federal agencies to permit or establish a facility for the purpose of processing, housing, or detaining illegal aliens. (League City Resolution) The resolution also appeals to Texas’ state legislators and state elected officials, requesting action and accountability to address the continuing influx of illegal aliens across the southern border. (Id.) Among other things, League City requests the state legislature and Governor to demand that the federal government provide more resources for new and existing Border Patrol checkpoints and to employ a contiguous physical barrier where prudent, and to abolish any and all state-controlled or sponsored magnets of illegal immigration, including but not limited to in-state tuition, welfare benefits, and free non-emergency health care for illegal aliens. (Id.)

As the city council debated the resolution, health and safety issues topped the list of concerns held by League City residents. (Click2Houston, Jul. 8 2014) City Council member Heidi Theiss, who supported the resolution, explained, “I believe the federal government is already mismanaging these facilities. I believe they are exacerbating the problem. I believe now it has reached, as we all agree, a humanitarian crisis proportion. They’re not adequately caring for the health, safety, and security of those inside the camps. So I’m concerned the federal government, which is already mismanaging the situation, wants to export that into my community.” (Id.) She added, “We’re sending a message to the feds and the state authorities that you’ve got to stop this crisis. You’ve got to manage it. It’s getting out of control.” (Id.)

Supporters of the resolution also feared that a mass transfer of illegal aliens would drain city resources. League City Mayor Timothy Paulissen, who supported the resolution, explained, “My fear is that there will be 1,000 kids here in Lake City. Where are they going to be housed? I think our school system will be required to educate them, enroll them in schools. Some of the other fears, documentation of diseases.” (ABC Eyewitness News, Jul. 8, 2014) During the debate, a League City resident added, “We can’t even take care of ourselves. We have veterans that are homeless.” (Click2Houston, Jul. 8 2014)

Council member Dennis O’Keefe voted against the ordinance, arguing against its validity. (Id.)”The directives, in my opinion, contained within the ordinance are illegal, they are unenforceable, no consequences for non-compliance and embarrassing to League City’s reputation,” said O’Keefe. (Id.)

League City is not the only community concerned about the local impact of the ongoing border surge. Dozens of other communities across the country are also responding to the border crisis by organizing protests and passing similar resolutions. (WND, Jul. 18, 2014) Communities that have been trying to block the transfer of illegal aliens include Galveston County, Texas, Prince William County, Virginia, Bethlehem, Pennsylvania, and Escondido, California, to name a few. (ABC Eyewitness News, Jul. 8, 2014; WND, Jul. 18, 2014)