FAIR Legislative Update April 11, 2011
Utah AG Says U.S. Justice Department Won’t Sue Utah
Utah Attorney General Mark Shurtleff continued to stir controversy last week when he announced the federal government would not sue the State to challenge the constitutionality of its new immigration laws. Shurtleff made the comments during an interview with a local Fox News affiliate in Salt Lake City. He told reporters: “I think I’ve convinced them [the U.S. Department of Justice] not to sue. They specifically asked, ‘Are you saying you don’t want us to sue you on this?’ And I said, ‘Yes, that’s exactly what I’m asking. We don’t want to be in litigation right now.’” (Fox 13 News, Apr. 7, 2011) Most immigration experts agree that two of Utah’s new immigration laws, a guest worker amnesty measure (H.B. 116) and a law allowing the sponsoring of immigrants outside the federal system (H.B.469), would likely be found unconstitutional if challenged in court. Utah Governor Gary Herbert signed both into law March 15th. (Gov. Gary Herbert Press Release, Mar. 15, 2011)
H.B. 116 authorizes Utah to grant illegal aliens who enter the state before May 10, 2011 guest worker permits, allowing them (and their spouses and children) to continue living and working in Utah. (§13) The bill will go into effect as soon as the State of Utah obtains a waiver from the federal government or July 1, 2013, whichever is sooner. (§10) Utah’s other bill at issue, H.B. 469 (the “Utah Pilot Sponsored Resident Immigrant Program Act”) grants the governor the authority to create a program that would allow U.S. citizens residing in Utah to sponsor a foreign national as a “resident immigrant” by agreeing to assume financial responsibility for him or her. (§6) Under the bill, foreign nationals qualify for resident immigrant status if they:
(1) file an application with the Utah Department of Public Safety,
(2) live outside of the U.S. at the time of application,
(3) pass a health and background check,
(4) provide evidence of no felony or Class A misdemeanor convictions or guilty pleas,
(5) file proof of sponsorship, and
(6) pay a fee. (§5)
As such, both H.B. 116 and H.B. 469 directly violate the federal government’s sole authority to regulate immigration by determining who may enter into the country and under what conditions they may remain. (De Canas v. Bica, 424 U.S. 351, 354 (1976))
Shurtleff’s comments reflect the growing politicization of immigration enforcement under the Obama Administration. In June 2010, the Administration intervened in the U.S. Chamber of Commerce lawsuit against the State of Arizona for its mandatory E-Verify law. (See FAIR Legislative Update, June 7, 2010) Then, in July 2010 the Administration sued the State of Arizona over S.B. 1070, also claiming that the bill is preempted by federal law. (New York Times, Jul. 6, 2010) Finally, less than a week later, a Justice Department spokeswoman announced that the Administration would not sue state and/or local governments with sanctuary policies: “There is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called sanctuary cities have done, and a state passing its own immigration policy that actively interferes with federal law,” she said. (The Washington Times, Jul. 14, 2010; See also FAIR Legislative Update, Jul. 19, 2010). With the latest news that the U.S. Justice Department will outright ignore the unconstitutionality of Utah’s immigration laws, it is becoming increasingly clear that the Obama Administration intends to enforce only those immigration laws that it further its political ends.
Late last week, the Senate Homeland Security Committee met to hear testimony from law enforcement officials from southwest border towns. The hearing, entitled “Securing the Border: Progress at the Local Level” is the second in the committee’s series to determine how to best improve security at the border.
Sheriff Paul Babeu, whose jurisdiction borders both Phoenix’s Maricopa County and Tuscon’s Pima County, gave some of the most alarming testimony of the hearing. Confirming the discovery of 200 bodies near Tucson, Arizona over the past year he told the Committee in no uncertain terms that the “violence is not coming to America, it is here. The drug cartels … have destroyed Mexico and have destroyed America.” Babeu was skeptical of claims by the Department of Homeland Security that progress is being made to control the border, and described the fear of homeowners in the desert who will not leave their houses unattended because they do not want their homes to be burglarized. The sheriff told the story of one American whose home was burglarized, but she did not call the police because she was afraid of being killed by scouts for the drug cartels who had stolen guns from her house. Sheriff Babeu recounted her saying, “I am an American and I don’t feel free in my own country.”
Senator Tom Coburn (R-OK) asked Sheriff Babeu if there is anything the federal government is doing to make securing the border more difficult for local law enforcement agencies. Babeu vehemently responded, “Yes. The Federal Government – President Obama and Eric Holder—should stop suing Arizona.” He stated that he and his fellow officers are holding to the “novel concept of enforcing the law.” Despite the many accusations surrounding Arizona’s law, Babeu passionately denied any hint of racism, noting that 200 of his deputies are Hispanic. And yet all of his deputies, including himself, want to stand up for the rule of law.
Despite Sheriff Babeu’s testimony, other witnesses commented that progress has been made over the past decade to make border counties safer. Senator Lieberman (I-CT) agreed, saying overall the testimony “showed that progress is being made, but that we still have a long way to go.”
The House Subcommittee on Immigration Policy and Enforcement held a hearing last week on a bill that would eliminate the controversial visa lottery program. H.R. 704—the “Security and Fairness Enhancement for America Act of 2011” (SAFE Act)—eliminates the 55,000 “diversity” visas by striking Sections 201(a)(3) and 201(e) of the Immigration and Nationality Act.
During the hearing, members of the Subcommittee expressed varying opinions about the utility of the visa lottery program. In his opening statement, Subcommittee Chairman Rep. Elton Gallegly (R-CA), denounced the visa lottery as poor public policy. “U.S. immigration policies should be based on something more than just the luck of the draw. It should be secure, and it … should be beneficial to Americans. The visa lottery program is neither,” he said. Ranking House Judiciary Committee member John Conyers (D-MI) disagreed, calling the hearing an “attempt to eliminate the people … least likely to be able to come to this country.” Rep. Conyers also accused those voicing concern over the program of opposing diversity. “[T]he question is, from my point of view, maybe the opponents of this program don’t want diversity in the first place, and … it’s not a very nice position to take,” charged Conyers.
Adding to the debate, several witnesses testified that the program gives rise to national security concerns. “[G]iven the fact that there is no necessity for a family relationship, no necessity for a particular job skill,  it is easy for an organization like Al Qaida to submit names,” said Rep. Bob Goodlatte (R-VA), sponsor of the SAFE Act. “Yes, it’s done at random, but you could submit lots of names from individuals who do not have terrorism records, that are young people, whose names could be drawn,” he added. Janice Kephart, former counsel to the 9/11 Commission, agreed, referring to the visa lottery as a “terrorist gamble.” “A successful application means an infiltration tactic with little oversight, a guaranteed visa, and permanent residency to those already in the U.S. or seeking entry from abroad,” said Ms. Kephart. According to her testimony, the four state sponsors of terror—Iran, Sudan, Syria, and Cuba—received a total of 2,588 visas or adjustments of status through the program in 2010.
Mr. Stephen Edson, former Deputy Assistant Secretary of State for visa services, also testified before the Subcommittee regarding the program’s susceptibility to fraud. “Because almost anyone can qualify for entry into the program,” Mr. Edson explained, “the cost of committing fraud in the category is quite low.” As such, applicants for the visa lottery, as well third-party brokers, commonly commit visa lottery fraud he said. He testified that fraud by applicants may include multiple entries into the program, false claims to education, employment, or financial support, and even “pop-up” spouses or family members. And, in the case of third-party fraud, Mr. Edson relayed accounts of consular officers discovering individuals (such as post office officials) conspiring to steal, provide to someone else, or hold hostage for a fee, documents that are supposed to go to winners of the visa lottery. “I believe that the SAFE for America Act will solve the problem of fraud in the [visa lottery] program, and the only way it’s likely to work, [is] by eliminating it,” he asserted in his concluding remarks.
Early last week Senator David Vitter (R-LA) introduced a second bill, S. 723, to clarify the eligibility of birthright citizenship. In contrast to the Senator’s first birthright citizenship bill which sought to amend the 14thAmendment of the U.S. Constitution, this bill seeks to amend the Immigration and Nationality Act to limit the granting of birthright citizenship to children of citizens, legal permanent residents or aliens serving in the U.S. Armed Forces. Senators Rand Paul (R-KY), Mike Lee (R-UT) and Jerry Moran (R-KS) joined Senator Vitter as co-sponsors of the bill.
In introducing the bill, Senator Vitter voiced concern over the growth of birth tourism, the practice of pregnant foreign nationals coming to the U.S. on tourist visas in order to have children who are U.S. citizens. He said: “’[B]irth tourism’ is certainly a reprehensible practice, but it is not an illegal one yet. It is astounding that the U.S. government allows individuals to exploit the loopholes of our immigration system in this manner, and Congress has the authority and the obligation to put a stop to it once and for all.” (Press Release, April 5, 2011) The Senator blames this burgeoning tourist industry on a misunderstanding of the text and history of the citizenship clause in the Constitution’s 14thAmendment.
For two days last week, nearly 50 radio hosts from across the nation gathered in Washington, D.C. to participate in FAIR’s “Hold Their Feet to the Fire” radio row event. Each year for the past five years, this gathering of radio hosts in an “electronic town hall meeting” has provided a platform for hosts and guests to debate immigration policy and given listeners across the country an opportunity to express their views.
Hold Their Feet to the Fire 2011 was FAIR’s largest to date. Over the course of two days, radio broadcasters from all over the country aired interviews with law enforcement officials, dozens of Members of Congress and policy experts, such as FAIR’s president Dan Stein. Other experts included Sheriff Paul Babeu of Arizona, Sheriff Chuck Jenkins of Frederick, Maryland, MSNBC commentator Pat Buchanan, and the former director of Immigration and Customs Enforcement, Julie Myers Wood.
FAIR activists from across the nation also gathered in Washington, D.C. for the event, taking the opportunity to visit Congressional offices and discuss the need for true immigration reform. Through the ongoing efforts of FAIR’s activists and the power of radio, FAIR hopes to promote a civil dialogue over the future of immigration policy and reforms that will restore legitimacy to our immigration system.