Legislative Update: 8/4/2015

GAO: Executive Amnesty Caused UAC Surge

A new report from the Government Accountability Office (GAO) finds that President Obama’s executive amnesty programs played a significant role in the surge of unaccompanied alien minors (UAC) from Central America who unlawfully crossed the border last year. Additionally, the report found that foreign aid sent to Honduras, Guatemala, and El Salvador to address the problem has been wasted.

Importantly, the GAO report contradicts claims by the Obama administration and amnesty supporters in Congress that Central American violence, and not Obama’s lax enforcement policies, is responsible for the UAC surge that began last summer. (See FAIR Legislative Update, July 1, 2014; FAIR Legislative Update, June 18, 2014) According to the GAO, “Violence, poverty, and poor access to education and other services have been pervasive development challenges in all three countries, predating the UAC migration increase.” (GAO, Improved Evaluation Efforts Could Enhance Agency Programs to Reduce Unaccompanied Child Migration, July 2015 at 11) Instead, the GAO pointed to admissions from U.S. officials that “general perceptions concerning U.S. immigration policy have played a growing role in UAC migration,” specifically President Obama’s Deferred Action for Childhood Arrivals (DACA) amnesty program. (Id. at 10) Indeed, “many Guatemalan citizens believe [illegal aliens] in the United States will be encouraged to send for their children from Guatemala so they can come to the United States and they can benefit together for any upcoming comprehensive immigration reform, or even be eligible for Deferred Action for Childhood Arrivals. In fact, according to USAID officials, Honduran youth and community coordinators indicated they believed the United States would allow migrant minors, mothers traveling with minors, and pregnant women to stay for a period of time upon arrival in the United States.” (Id.)

The GAO also found that the Obama Administration’s solution to the UAC surge — sending taxpayer dollars to the Central American nations — was completely ineffective. At the height of the surge last year, President Obama requested $3.7 billion for the border crisis rather than ask Congress to pass a law that allows for the quick repatriation of UAC minors. (See FAIR Legislative Update, July 15, 2014) Although Congress did not approve the President’s funding request, the GAO found that in fiscal year 2014 the U.S. government sent over $210 million dollars to these Central American nations: $78 million to Honduras; $88.1 million to Guatemala; and $44.5 million to El Salvador. (GAO Report at 7) While much of that money was supposed to go towards an information campaign dissuading people from unlawfully crossing the U.S.-Mexico border, GAO found “DHS and State have not consistently evaluated their information campaigns intended to reduce migration, making it difficult to know the effectiveness of these efforts.” (Id. at 33) While DHS called these campaigns “essential,” agency officials dubiously claimed they have not evaluated them because of “funding constraints.” (Id. at 35, 37) Moreover, “[o]ne public affairs officer said that the only information available on the campaigns’ impact is anecdotal.” (Id. at 38)

Worse, the GAO also found several instances of the Central American countries misappropriating the funds. For example, the U.S. sent money to Honduras to train prosecutors to improve their criminal justice system but the GAO said “there were no active prosecutors participating” in that nation’s capital. (Id. at 39) Similarly, aid was sent to El Salvador for a computer lab and, although the computers were there, GAO found “no teacher present” because the Salvadorian government has thus far refused to fund the position. (Id.)

Judge Poised to Order Release of 1,800 Illegal Aliens

Last Friday, Federal District Judge Dolly Gee ruled that the Obama Administration’s policy of detaining illegal alien minors and families violated a 1997 settlement entered into by the Clinton Administration, and ordered the government to show why those detainees should not be released within 90 days. (See Flores v. Johnson Order, July 24, 2015) 

The settlement, known as the Flores Agreement, was the resolution of a 1985 class action lawsuit against the Immigration and Naturalization Service (INS)’s detention of unaccompanied alien children (UACs) initiated after a similar influx of UACs during the 1980s. (See e.g.  Office of the Inspector General, Department of Justice Report, Sept. 28, 2001) In that lawsuit, several organizations — the National Center for Immigrants’ Rights, the National Center for Youth Law, and the ACLU Foundation of Southern California – sued on behalf of the class of illegal alien minors being detained by INS in the absence of their parent or legal guardian physically appearing at INS to take custody of them. (See Flores v. Meese, July 11, 1985) They argued that the INS was violating regulations under the Immigration and Nationality Act (INA) and the due process clause of the Fifth Amendment by refusing to release illegal alien minors to individuals other than their own parents or legal guardians. (Id.) They also argued that the illegal alien minors were being denied the constitutional right to receive “educational services.” (Id.) The case then remained in active litigation over a number of issues for years. (See Reno v. Flores, 507 U.S. 292 (1993))

The Reagan and the George H.W. Bush administrations defended the INS policies, appealing adverse rulings in the late 1980’s and early 1990’s. (Id.) In early 1993, at the very beginning of the Clinton Administration, the Supreme Court ruled that the INS’ policy was reasonable, reversed the judgment of the Ninth Circuit, and sent the case back to the district court for further proceedings. (Id.) However, in 1997, rather than defend INS’ policies until the courts reached a final ruling, the Clinton Administration agreed to settle the case to the benefit of illegal aliens and agreed to a new “nationwide policy for the detention, release, and treatment of minors,” (the Flores Agreement). (Flores Settlement, Jan. 17, 1997)

The new policy gave a number of benefits to illegal alien minors. (Id.) These benefits include provisions that: 1) minors would be placed in the “least restrictive setting” and they cannot be placed in a secure facility if there are less restrictive alternatives available; 2) minors would be “expeditiously” processed and provided with notice of rights, including rights to a bond hearing; 3) minors would be held in “safe” and “sanitary” facilities after arrest; 4) minors would be segregated from the unrelated adult population; 5) minors could be released to individuals other than parents or guardians; 6) minors who are not released can be placed in a facility “licensed” by an appropriate state agency to provide “residential group or foster care services for dependent children,” which shall be “non-secure” as required under state law. (Id.) The agreement did provide that minors could be placed in secure settings, if, on an individual basis, that minor: 1) was charged or convicted of a serious enough crime or has been the subject of delinquency proceedings; 2) committed or threatened to commit a violent act while in custody; 3) has engaged in unacceptably disruptive conduct while in the licensed program; 4) is an escape risk, or 5) must be held in a secure setting for his or her own safety. (Id.)

Then, recently, the Center for Human Rights and Constitutional Law Foundation, along with La Raza Centro Legal and others as co-counsel, decided to use the Flores Agreement to challenge the Obama Administration’s increased use of family detention as a response to the UAC crisis last summer. (See FAIR Legislative Update, July 1, 2014; Center For Human Rights and Constitutional Law; Flores v. Johnson Order, July 24, 2015) In February, they filed a complaint. (Id.) They claimed that the Administration’s decision to detain some of the UACs and family units who crossed the border from Central America rather than release them into the community with an immigration court date violated the Flores Agreement. (Id.)

Judge Gee agreed, holding that the Flores Agreement applied to all alien minors, accompanied by family or unaccompanied, and that DHS’ policy not to release the minors, with their family members, if any, on bond is a breach of the agreement. (Id.) DHS may not hold minors in these facilities, she held, because the Flores Agreement states that minors cannot be held in a facility that is “secure and non-licensed.” (Id.) The licensing provision, she said, was essential to ensure minors at a facility got the protection of “regular and comprehensive oversight by an independent child welfare agency.” (Id.) Furthermore, she stated, the plaintiffs offered evidence that “secure confinement” can inflict “long-lasting psychological, development, and physical harm. (Id.) Therefore, Judge Gee held that the quality of the conditions in the facilities and the educational options provided therein were irrelevant.  (Id.; see FAIR Legislative Update, Oct. 28, 2014, for a description of the facilities provided for the UACs’ education in the family detention centers.) Minors who are not released, she ruled, must be held in “non-secure, licensed facilities.” (Flores v. Johnson Order, July 24, 2015) She also ruled that the Border Patrol stations that processed the flood of UACs were not “safe and sanitary.” (Id.) Finally, she ruled that there had been no change in the law or factual circumstances that required modifying the Flores agreement. (Id.)

Democrats in Congress seized upon the ruling to escalate their calls for the end of family detention, with 178 Democrats sending Homeland Security Secretary Jeh Johnson a letter telling him to close the family detention centers that were repurposed last summer to respond with the UAC crisis. (Politico, July 29, 2015; The Hill, July 31, 2015; see FAIR Legislative Update, Oct. 28, 2014) However, many Democrats have been calling for an end to family detention for months — over 130 House Democrats previously sent Secretary Johnson a similar letter in May and 33 Senate Democrats sent him one in June.  (See FAIR Legislative Update, June 9, 2015)

In contrast, the Chairman of the Judiciary Committee, Bob Goodlatte (R-VA), urged the Obama Administration to defend its ability to detain family units, pointing out that “detention is the best way to ensure that unlawful aliens show up for their immigration court dates.” (House Judiciary Committee Press Release, July 28, 2015) He pointed out that 84% of aliens apprehended with children who are not detained fail to show up for their court date, and that 46% of UACs themselves likewise fail to appear. (Id.) If the Court’s decision is left to stand, Goodlatte said, it will “essentially end” family detention, causing the on-going surge across the southern border to grow even larger. (Id.)

Border Patrol Orders Release of Illegal Alien who Becomes Suspect in Violent Crime Spree

Only two weeks after being released from a local jail, an illegal alien in Ohio is now accused of murdering a woman, attempting to rape a 14-year-old girl, and shooting another woman in the arm. (Washington Examiner, July 30, 2015; Los Angeles Times, July 29, 2015)

Juan Emmanuel Razo-Ramirez, the accused illegal alien, was stopped by in Lake County, Ohio by deputy sheriffs on July 7. (Id.) The deputy sheriffs contacted Border Patrol agents after they discovered Razo-Ramirez was an illegal alien. (Id.)Because Razo-Ramirez had no known previous convictions and the deputies had no evidence he had committed a crime, the Department of Homeland Security refused to issue a detainer to obtain custody of Razo-Ramirez and Border Patrol ordered his release. (Id.)

Razo-Ramirez’s arrest comes only four weeks after the murder of Kate Steinle allegedly by an illegal alien in San Francisco, California. (FAIR Legislative Update, July 8, 2015) Kate Steinle’s murder ignited public outrage at the city’s sanctuary policy which prohibits jails from turning over most criminal aliens to Immigration and Customs Enforcement for departure. The accused murderer, Juan Francisco Lopez-Sanchez, had been in the custody of the Border Patrol and would have been deported for the sixth time had San Francisco not requested that the Border Patrol send Lopez-Sanchez to San Francisco to face a 20-year-old drug charge. (Pleasanton Patch, July 22, 2015) When the charge was thrown out by the San Francisco District Attorney’s Office, the San Francisco Sheriff’s Department refused to honor a detainer request to transfer Lopez-Sanchez to ICE. (Id.) Instead, the Sheriff’s Department, pursuant to its own sanctuary policy, released Lopez-Sanchez back into the community. (Id.)

Immigration attorney Ken Robinson commented on the federal government’s handling of Razo-Ramirez’s arrest, calling it “the new normal” for immigration enforcement. (Los Angeles Times, July 29, 2015) “You’re really going to have a hard time getting deported” without committing a serious crime, he added. (Id.)In November of last year, the Obama administration relaxed deportation policies to target removing only the most serious criminal aliens from the United States. (FAIR Legislative Update, Nov. 24, 2015)

The Department of Homeland Security indicated that the agency intends to deport Razo-Ramirez after he is tried by the court and serves any sentence imposed by the court for his crimes. (Los Angeles Times, July 29, 2015)