Legislative Update: 8/2/2016

Obama Administration Significantly Expands Central American Amnesty Program

With his major executive amnesty programs thwarted by the courts and “comprehensive” immigration reform dead on Capitol Hill, President Obama announced a significant expansion to another backdoor amnesty program known as the Central American Minors (CAM) Refugee/Parole Program. The decision to allow more people from El Salvador, Guatemala, and Honduras to enter the country by circumventing the Immigration and Nationality Act (INA) sends a clear signal that President Obama is determined to unilaterally admit as many foreign nationals as possible before his term expires.

The Obama administration announced the original CAM program in November 2014, supposedly to stop the surge of unaccompanied alien minors (UAMs) from Central America from crossing the southern border unlawfully. (See FAIR Legislative Update, Nov. 18, 2014) Under the program, the federal government grants either refugee or parole status to children (under age 21) and adults from Central America when a “qualifying parent” who is “lawfully present” in the U.S. files an application for refugee status on behalf of their child currently living in one of the three countries. (USCIS CAM Guidelines) The guidelines provide that a “qualifying parent” may be an alien with (1) permanent resident status; (2) temporary protected status; (3) parole (after one year); (4) deferred action (after one year); (5) deferred enforced departure; or (6) withholding of removal. (Id.; see FAIR Legislative Update, Feb. 18, 2015) Importantly, setting “lawful presence” as the criteria for the sponsor covers broad categories of illegal aliens granted amnesty through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) [subject to U.S. v. Texas litigation], as well as the President’s other backdoor amnesty policies. This means the Obama administration unilaterally created a program to allow illegal aliens to use the laws of the United States governing refugees and parole to bring in their relatives living outside the U.S.

Having failed to stop — or even slow — the surge of Central American minors coming across the Southern border, the Obama administration responded last Tuesday by greatly expanding the CAM program. Through a Department of Homeland Security (DHS) press release, the Obama administration announced that a “qualifying child” (Central American under age 21 with “qualifying parent” in the U.S.) can also bring along the following relatives: (1) siblings who are over 21 years old; (2) in-country biological parent of the qualified child (even if not married to the qualifying parent); and (3) “caregivers” who are related to the qualifying parent (presumably aunts, uncles, and grandparents). (DHS Press Release, July 26, 2016) Additionally, DHS announced that Costa Rica will host “at risk” qualifying children and derivatives until the U.S. can process their claims. (Id.)

As FAIR has repeatedly pointed out, granting refugee status or parole to Central American minors and their relatives requires the Obama administration to outright ignore federal. INA Section 101 defines a refugee as a person “who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (INA § 101(a)(42)) Moreover, courts have long held that poverty and crime are not sufficient grounds for granting refugee status. (SeeFAIR Legislative Update, Nov. 18, 2014) Similarly, granting parole en masse to relatives of illegal aliens in the U.S. stretches “humanitarian parole” far beyond its statutory definition in INA Section 212 as allowing the entry of an alien on a temporary, case-by-case basis, and “for urgent humanitarian reasons or significant public benefit.” (INA § 212(d)(5)(A))

Unsurprisingly, the data on individuals who applied for the original CAM program confirm they fail the statutory test for refugee. Internal DHS documents obtained by the Immigration Reform Law Institute (IRLI), FAIR’s legal affiliate, reveal that 90 percent of applications for refugee status have been denied. (See The Hill, July 29, 2016) Indeed, the inability to legitimately qualify as a refugee is precisely why CAM is structured as a refugee or parole program. IRLI’s Executive Director Dale Wilcox expands upon this, “So if Obama’s DHS officials know most UAMs will get rejected from CAM under US refugee law, why are they bothering? Why not just refer to CAM as solely a parole program? It’s likely the political usefulness of the word “refugee” itself. The emotive term fulfills the crucial element of emotional blackmail which the president is always eager to employ when imposing his open-borders experiment on the American people.” (Id.)

Those who care about immigration enforcement and the rule of law blasted the announcement. “Once again, the Obama administration is asserting broad discretionary authority to bypass congressionally mandated limits on the number of people who are admitted to the United States. Moreover, in its carefully worded statement, DHS appears to be deliberately misleading the American public about the scope of this unauthorized program and the people who may benefit from it,” charged Dan Stein, FAIR’s president. (FAIR Press Release, July 26, 2016) True immigration reformer Sen. Jeff Sessions (R-AL) added, “The Obama Administration announced plans yesterday to expand an already unlawful program by setting up an extra-legal chain migration system for certain immigrants in the U.S. — including illegal aliens…. This will only encourage more lawlessness, exacerbate the current situation at our border, and erode public confidence in the integrity of our immigration system.” (Sessions Press Release, July 27, 2016) Similarly, Rep. Paul Gosar (R-AZ) said, “The Obama Administration admitted it has no clue how many unlawful immigrants from Central American countries will be flown into America as a result of expanding this unconstitutional amnesty program. This action blatantly violates federally mandated immigration caps as well as Article 1, Section 8, Clause 4 of the U.S. Constitution.” (Gosar Press Release, July 27, 2016) Earlier this year, Rep. Gosar introduced the FAIR-supported “Central American Amnesty Termination Act of 2016” (H.R. 5141) that would prohibit federal funds from implementing CAM. (SeeFAIR Legislative Update, May 10, 2016)

Hillary Clinton Accepts Democratic Nomination for President, Promises Amnesty for Illegal Aliens

Last Thursday, Hillary Clinton formally accepted the 2016 Democratic nomination for president. (Fox News, July 28, 2016) In her acceptance speech at the Democratic National Convention — which featured illegal aliens in prominent speaking roles — Clinton affirmed her commitment to large-scale amnesty and staunch opposition to immigration enforcement of any kind. “We’ll build a path to citizenship for millions of [illegal] immigrants who are already contributing to our economy,” Clinton said. (See Transcript of Hillary Clinton’s Speech, July 28, 2016) “I believe that when we have millions of hardworking [illegal] immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.” (Id.) The Democratic nominee also took a shot at Donald Trump’s proposed border wall, saying, “We will not build a wall. Instead, we will build an economy where everyone who wants a good paying job can get one.” (Id.)

While Clinton did not provide a specific timeframe for her key immigration proposal, her running mate, Sen. Tim Kaine (D-VA), pledged that a new Clinton administration would pursue “comprehensive” immigration reform immediately. “Hillary is going to do [a path to citizenship] in the first 100 days of her administration,” Kaine said in a Spanish-language interview last Monday. (See Telemundo Transcript, July 25, 2016) “She is going to make a big effort in Congress to get reform passed, and with my experience in the Senate, with bipartisan colleagues, I am going to work hard — especially in Congress — to help this effort.” (Id.)

In a statement issued hours before Clinton gave her acceptance speech, the National Border Patrol Council warned that her plan endangers American citizens and ignores their interests. (Washington Examiner, July 28, 2016) “Clinton’s call for amnesty in her first 100 days and expanding these dangerous policies demonstrates her deeply alarming willingness to sell out the security of American families to advance her political or financial interests,” the union said. (Id.) “Her immigration plan is not only dangerous for all American families, but previews an administration that will once again defy the will of the voters and Congress to implement a divisive, reckless and partisan agenda.” (Id.)

Mexico Defends Its Borders While Helping Illegal Aliens Cross Into The U.S.

Mexico’s president Enrique Pena Nieto has lambasted Republican presidential nominee Donald Trump for his call to build a wall between the United States and Mexico to stop illegal immigration, violence, and drugs from pouring into American communities. (The Daily Caller, July 18, 2016) Yet, at the same time Nieto is criticizing those in the U.S. who support immigration enforcement, Mexico is protecting its borders from illegal aliens — deporting nine out of ten Central Americans trying to cross illegally. (Id.)

Illegal immigration from Central America first became a major issue in Mexico as well as in the United States in 2014 when hordes left the systemic violence in the region and many hoping to benefit from President Obama’s executive amnesty. Notably, Mexico is taking a zero tolerance policy on those it believes want to remain there, deporting 90 percent of Central Americans who illegally crossed Mexico’s southern border. In the first 4 months of this year, 43,506 Central Americans from El Salvador, Honduras, and Mexico were kicked out of Mexico. (Id.) This total included 8,190 unaccompanied alien minors (UAMs). (Id.) On the other hand, the Mexican government is helping Central American illegal aliens reach the U.S.-Mexico border if that is their desired destination. For example, Grupo Beta, which is funded and backed by the Mexico’s National Institute of Migration, sees its mission to ensure safe passage of the illegal Central Americans who want to cross into the United States. (See Fox News, July 26, 2016)

The combination of President Obama’s non-enforcement agenda and the assistance from Grupo Beta has predictably resulted in a continual surge of Central Americans illegally crossing our southwest border. Already in Fiscal Year 2016, UAMs and family unit apprehensions have eclipsed the numbers recorded at the same point in Fiscal Year 2014. (See CBP Apprehension Statistics, FAIR Legislative Update, May 31, 2016) Currently, 70,684 UAMs and family units have been apprehended crossing the southwest border, compared to 62,621 at the same point in 2014’s record setting year — an increase of 13 percent. (Id.)

Droves of Central Americans continue to stream through Mexico into the United States because the Obama administration has repeatedly refused to actually address the underlying causes of the illegal migration from Central America, notably the fact that UAMs and family units who cross the border know they will get to stay once they arrive. (See FAIR Legislative Update, May 31, 2016) Once Central American UAMs and family units are apprehended at the border, they receive papers setting court dates and are then released into the U.S. (See FAIR Legislative Update, Dec. 1, 2015) These documents are known as “notices to appear,” but illegal aliens refer to them as “permisos,” or free passes, because they give permission to stay in the country while they await their appearance in already backlogged immigration courts. (Id.) 

Democrats Ratify Amnesty-Focused Party Platform

On the first day of the Democratic National Convention in Philadelphia, the party ratified its 2016 platform — a nonbinding document that serves as a guide for Democratic policymaking at every level of government. (ImmigrationReform.com, July 26, 2016) This year’s platform calls for creating “a pathway to citizenship” for most illegal aliens, taxpayer benefits for illegal aliens, expanding refugee admissions, and an end to enforcement “raids.” (Id.) However, the platform contains no mention of the national interest, border security, or the rule of law. (Id.)

“Democrats believe we need to urgently fix our broken immigration system — which tears families apart and keeps workers in the shadows — and create a path to citizenship for law-abiding families who are here, making a better life for their families and contributing to their communities and our country,” the platform reads. (See 2016 Democratic Platform) It goes on to call for a repeal of the 3-year, 10-year, and permanent bars, saying, “We will work with Congress to end the forced and prolonged expulsion from the country that these immigrants endure when trying to adjust their status.” (Id.)

The platform also defends the Obama administration’s unconstitutional executive amnesties, claiming that they do not go far enough. (Id.) “While we continue to fight for comprehensive immigration reform, we will defend and implement President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) executive actions to help DREAMers, parents of citizens, and lawful permanent residents avoid deportation,” the new platform states. (Id.) “We will build on these actions to provide relief for others, such as parents of DREAMers.” (Id.)

Regarding taxpayer benefits for illegal aliens, the platform calls for ensuring “that all Americans — regardless of immigration status — have access to quality health care.” (Id.) This would be achieved by “expanding community health centers, allowing all families to buy into the Affordable Care Act exchanges, supporting states that open up their public health insurance programs to all persons.” (Id.) In addition to health care, the platform also supports efforts to provide illegal aliens with college tuition and driver’s licenses. (Id.)

The platform devotes an entire section to refugees, claiming that “the world is experiencing a major refugee crisis with more than 60 million people displaced as a result of conflicts in the Middle East, Africa, and Eastern Europe.” (Id.) It rejects Republican nominee Donald Trump’s call to suspend refugee admissions from nations compromised by terrorism, saying “We will look for ways to help innocent people who are fleeing persecution while ensuring rigorous screening and vetting.” (Id.)

The platform only briefly touches on interior enforcement, stating that Democrats believe “immigration enforcement should prioritize those who pose a threat to the safety of our communities, not hardworking families.” (Id.)The platform goes on to state, “We should prioritize those who pose a threat to the safety of our communities, not hardworking families who are contributing to their communities. We will end raids and roundups of children and families, which unnecessarily sow fear in immigrant communities.” (Id.)

Immigration Court Backlog Tops 500,000 Cases

The continuing surge of unaccompanied alien minors (UAMs) is overwhelming immigration courts, leading to a significant backlog of cases. According to the Justice Department’s Executive Office for Immigration Review there are now 500,051 pending immigration cases in the agency’s courts. (Fox News, July, 20, 2016) The backlog has substantially increased in recent years. Since 2011, more than 200,000 cases have been added to the court’s docket and the backlog is expected to continue to grow. (Id.)

The size of the backlog is unsurprising for several reasons. First, the Obama administration’s refusal to enforce the law encourages increased illegal immigration. Additionally, the immigration courts are severely understaffed. (See FAIR Legislative Update, May 27, 2015) Further exacerbating the court backlogs is the additional layers of process UAMs and family units from Central America receive. Because of a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, UAMs from Central America cannot be promptly returned to their home countries. (P. Law 110-457) Instead, they receive a “notice to appear” which sets a court date in the future before an immigration judge but illegal aliens refer to these official documents as “permisos” or free passes. (See FAIR Legislative Update, Dec. 15, 2015) Predictably, the National Border Patrol Council estimates that 80-90 percent of UACs fail to show up for the hearing. (Id.) Unsurprisingly, Honduras, El Salvador, and Guatemala, the principal countries driving the surge, have the highest number of cases pending in the courts. While President Obama continues to blame Central American violence for the surge rather than his non-enforcement policies, he has prioritized these UAM cases before others in an effort to address the issue which has resulted in the increased backlog for other illegal aliens.

The number of illegal aliens set to go before an immigration judge has nearly doubled since President Obama took office. According to the Transactional Records Access Clearinghouse (TRAC), the backlog at the end of June hit an all-time high of 496,704 compared to the backlog of 223,809 immigration cases which were pending at the end of Fiscal Year 2009. (TRAC, June 2016) As of the end of last month, the backlog represented an average of 1,819 cases for each of the 273 judges now on the bench, or a workload that will take 2 ½ years to clear up — without any additional cases being filed. (Id.) The ramifications caused by the court backlog means that illegal aliens will wait for years before they have their hearing. Without a functioning court system, illegal aliens are not only likely to become entrenched in the United States but they are also likely to skip their hearing and disappear into the interior of this country.