FAIR Legislative Update April 5, 2010
Illegal Alien Suspected of Gunning Down Arizona Rancher; Lawmakers Demand Deployment of National Guard and Border Patrol Agents to Mexican Border
Robert Krentz was murdered while tending to his Arizona ranch last weekend and local police suspect an illegal alien is responsible. (Fox News, March 30, 2010). The 58 year-old rancher was gunned down on his own property shortly after radioing his brother Phil that he had encountered an illegal alien. Id. When Krentz didn’t show up to meet his brother about an hour later as planned, Phil called the police and a search party was formed. Late that night, Krentz was found slumped over his ATV, shot to death along with his dog. Law enforcement officials with tracker dogs followed the footprints from the crime scene on Krentz’s ranch 15 miles to the border where they crossed into Mexico. Id.
The prominent rancher, who often brought water to illegal aliens and helped those who were injured, was apparently caught by surprise, as his ATV’s engine and lights were still on and he did not use either of the two guns he was carrying with him. (Fox News, March 30, 2010). Police believe that he could have been attacked by a drug cartel scout or a member of a band of thieves that has been terrorizing ranches in the area. It is also possible that Krentz’s murder was a retaliatory killing because just one day before, his brother stopped a caravan of illegal aliens who were carrying 280 pounds of marijuana. Id. Border patrol arrested all eight illegal aliens and impounded the drugs.
Whatever the motive behind the slaying of this innocent man, neighboring ranchers are both scared and frustrated with the lack of government action to secure the border. Friends and neighbors of the slain rancher denounced politicians for their empty promises to secure the border that failed to protect Krentz on his own land. (The Arizona Republic, April 1, 2010). The Krentz family issued a statement urging President Obama to deploy U.S. military personnel to the U.S.-Mexican border, but this is not the first time they have sought help from their elected officials. The family repeatedly expressed concern to authorities over the $6.2 million damage to their property and livestock caused by “illegal foot traffic,” and Robert’s wife, Susan, wrote to Congress in 2007 that “We are in fear for our lives and safety and health of ourselves and that of our families and friends.” (Fox News, March 30, 2010).
Lawmakers from Arizona and New Mexico are joining their constituents’ demands that the Obama administration deploy hundreds of National Guard and Border Patrol agents to the southern border. (Fox News, March 30, 2010). In the wake of the murder, state and federal politicians are calling upon the government to beef up border security and protect American citizens. Former Congressman J.D. Hayworth, who is currently challenging Senator John McCain’s bid for reelection, said that the killing debunks claims that the border is secure, “To put it diplomatically, that’s incorrect. To put it realistically, that’s a lie.” (The Arizona Republic, April 1, 2010).
Senator McCain also called upon the federal government to immediately deploy the National Guard to the border in a letter to Department of Homeland Security (DHS) Secretary Janet Napolitano, who made a similar request to President George W. Bush in 2006 when she was the governor of Arizona. McCain urged, “I hope that you will take a personal interest in ensuring that Arizonans can feel safe and protected on their own property and not live in fear of the increasing violence along the border.” (CBS News, March 30, 2010). Arizona Governor Jan Brewer, whose request for National Guard troops last year was denied by the Obama administration, joined the demand for deployments, calling the killing a “horrible and unnecessary tragedy.” (Fox News, March 30, 2010). (Politico, April 2, 2010). President Obama has not responded to the renewed requests for increased border security, but just last month he spoke to reporters about the issue of National Guard deployments. (Id.) Obama has made it clear that he does not want to “militarize” the border, but he called it “unacceptable if you’ve got drug gangs crossing our borders and killing our citizens.” Id.
The release of internal documents last week revealed that ICE officials recently set quotas to deport more illegal aliens in 2010 than the previous year. (The Washington Post, March 27, 2010). As the Immigration Customs and Enforcement (ICE) spokesman is scrambling to distance the agency from the content of the documents, amnesty forces are decrying the apparent move to enforce immigration laws, what they call a betrayal. The special interest groups are in an uproar because the memos from January and February of this year indicate that U.S. immigration authorities are both seeking to reverse a severe drop in deportations, and to do so are moving away from the Obama administration’s public pledge to focus enforcement efforts solely on violent criminal illegal aliens. (ICE Memos).
The internal memos have stirred controversy among opposition groups because they suggest a deviation from the public commitments made by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE chief John T. Morton. Over the past year, Napolitano has expressed a determination to abandon the worksite enforcement actions and neighborhood sweeps the Bush administration focused on, and instead vocally supported the deportation of criminal aliens. (The Washington Post, March 27, 2010). However, in a February 22, 2010 memo authored by Jim Chaparro, head of ICE detention and removal operations (DRO), the senior official noted that deportations for the current year were already down significantly, and that ICE agents would have to focus their efforts on more than criminal aliens in order to meet the agency’s goal of 400,000 removals this year. Id. The memo has attracted attention not only for the rare statement of ICE enforcement goals in explicit terms, but because Chaparro – who was also a senior Homeland Security Official under President Bush – also provided a road map to help agents deport more illegal aliens.
Unfortunately, instead of defending the appropriate expansion of removal activities, ICE spokesman Brian P. Hale was quick to distance DHS leaders from it. “Portions of the memo were inconsistent with ICE, inconsistent with the administration’s point of view and inconsistent with the secretary,” said Hale. Id. Morton also released a statement that the memo was issued without his authorization, adding, “We are strongly committed to carrying out our priorities to remove serious criminal offenders first and we definitively do not set quotas.” (The Los Angeles Times, March 31, 2010). Morton is under fire from amnesty activists who are calling for his removal because they view the memo as “a clear violation” of his previous statements. According to the Center for Community Change, “ICE has gone rogue and needs to be reined in with dramatic action.” Id.
The news that immigration officials could be committed to actually enforcing the law has been met with disbelief and intense anger from amnesty advocates, leading Morton to promise that the memo had been “withdrawn and corrected.” Chaparro also released a new memo clarifying that his earlier statement “signals no shift in the important steps we have taken to date to focus our priorities on the smart and effective enforcement of immigration laws, prioritizing dangerous criminal aliens…while also adhering to Congressional mandates to maintain an average daily [detention] population and meet annual performance measures.” (The Washington Post, March 27, 2010). Interestingly, Chaparro did not alter or rescind any of the strategies he had previously outlined to combat the sharp decline of deportations.
Testifying before the House Judiciary Immigration Subcommittee on March 23rd, the DHS Assistant Inspector General told lawmakers that granting amnesty would create “the mother of all backlogs” in the Bureau of U.S. Citizenship and Immigration Services (USCIS). USCIS, the federal agency tasked with adjudicating applications and petitions for visas, employment authorization, green cards, etc., has incurred a formidable backlog since its inception in 2003. (Statement of Frank W. Deffer, March 23, 2010). The March 23 hearing was meant to shed light on the steps USCIS is taking to address this backlog, as well as a possible increase in petition and application fees.
Assistant Inspector General Deffer’s testimony described how the existing backlog at USCIS was closely connected to the agency’s poor information technology and the program already underway to modernize it. (Statement, March 23, 2010). The modernization began in 2005, when USCIS embarked on an enterprise-wide transformation program to transition its fragmented, paper-based system to a centralized and consolidated electronic system. At that time, the DHS Inspector General reported that USCIS’ processes were primarily manual, paper-based and duplicative, resulting in “ineffective use of human and financial resources” and described USCIS’ information technology for processing immigration benefits as “inefficient, hindering its ability to carry out its mission.” (Id.).
At the hearing, Deffer noted that USCIS’s modernization efforts are particularly important, because of “a significant backlog of cases.” Each year, Deffer stated, USCIS receives more than 7.5 million immigration applications and petitions. To adjudicate and process these applications, USCIS has more than 15,000 employees and contractor personnel in more than 250 offices worldwide. Deffer noted, however, that despite progress made to improve information technology management, “significant challenges remain.” (Statement, March 23, 2010).
Subcommittee Chairwoman Zoe Lofgren (D-CA) clearly agreed. “The agency still continues to use a filing system that is predominantly paper-based,” she said. “[W]ith approximately 55 million files spread out over numerous offices across the country…it’s hard to believe that any federal agency dealing with millions of files has not yet developed a primarily digital filing system.” Lofgren noted that despite USCIS’s transformation” program to modernize its IT system, a July 2009 report from the DHS Inspector General found “that the transformation efforts were ineffective and plagued with problems.” (Hearing Information, March 23, 2010; See also DHS Inspector General Report, July 2009).
Rep. Sheila Jackson-Lee (D-TX), a notorious proponent of amnesty for illegal aliens, pressed USCIS Director Alejandro Mayorkas and Assistant Inspector General Deffer on whether USCIS was prepared to handle the processing of millions of amnesty applications should Congress pass a so-called “comprehensive immigration reform” bill. “I cannot imagine,” Jackson-Lee declared, “if we pass comprehensive immigration reform, what a paper-based system will do.” While Mayorkas attempted to argue that USCIS would be able to successfully implement an amnesty program, Deffer offered a much less optimistic assessment: “In effect, adding twelve million more people to the system would be the mother of all backlogs.” Deffer continued: “Clearly, to us, the systems could not handle it now.” (Hearing Information, March 23, 2010).
President Obama once again demonstrated his allegiance to pro-amnesty organizations by appointing a union lawyer to the National Labor Relations Board (NLRB) who opposes employer sanctions for hiring illegal aliens. President Obama appointed Craig Becker to the NLRB last week as part of a series of recess appointments to fill 15 administration positions, a move that upset Republicans who argued the president circumvented the Senate’s authority to confirm nominations. (The Wall Street Journal, March 29, 2010). Though both parties agree that most of the nominees are not controversial, the appointment of Becker to the National Labor Relations Board (NLRB) has sparked fierce opposition.
The main controversy comes from public comments Mr. Becker has made on employer sanctions for hiring illegal aliens. In a 2001 radio interview on WBEZ, Becker publicly stated that he opposes sanctioning employers for hiring illegal aliens. (Breitbart, January 8, 2001). Calling the impact of employer sanctions “discriminatory” and “harsh,” Becker said the policy of imposing sanctions ignored the fact that illegal aliens are here to stay. Becker’s nomination, which has been pending for about a year, has also been controversial because he is the associate general counsel of the Service Employees International Union (SEIU) and also works for the AFL-CIO, both of which support amnesty and spend millions of dollars advocating for such legislation. Many feel that his history creates a conflict of interest because the NLRB oversees union elections and referees disputes between employers and unions. Opponents of Becker’s nomination feel he won’t be impartial.
Both Democrats and Republicans feel Becker’s radical positions should disqualify him from the position at the NLRB. Only two months ago, the Senate blocked Becker’s appointment through a filibuster. At that time, Senator Ben Nelson (D-Neb.) remarked, “Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration. This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand.” (Politico, February 8, 2010). In fact, the National Right to Work Legal Defense Foundation has already said it will ask Becker to recuse himself from 12 pending cases due to his prior opposition to the group. (The Wall Street Journal, March 29, 2010).
Obama’s decision to appoint Becker is a huge win for labor unions. The Workforce Fairness Institute, which is funded by business owners, called Becker’s appointment a “payoff to union bosses at the expense of America’s employers and employees.” (CBS News, March 29, 2010). While union advocacy groups such as American Rights at Work celebrate, the U.S. Chamber of Commerce warns, “the business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” (CBS News, March 29, 2010).
On Wednesday, March 31, the United States Supreme Court held that aliens have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to deportation. The Supreme Court’s ruling extends the U.S. Constitution’s Sixth Amendment right of “effective assistance of counsel” in criminal cases to immigration advice in cases where an immigrant’s plea carries a risk of deportation. (The Washington Post, March 31, 2010; Opinion at 17).
The sweeping new ruling stemmed from the conviction of Jose Padilla, a legal permanent resident who pled guilty to transporting a large amount of marijuana in his tractor-trailer. Following his conviction, Padilla was ordered deported. Padilla alleged in post-conviction proceedings that his lawyer had told him that his guilty plea would not make him removable, and that, had he known of this potential consequence, he would have insisted on going to trial. The Supreme Court of Kentucky denied Padilla’s post-conviction relief, holding that the Sixth Amendment’s guarantee of effective counsel does not protect a criminal defendant from erroneous advice about deportation. (See Commonwealth of Kentucky v. Jose R. Padilla, June 19, 2008). Padilla appealed to the United States Supreme Court.
Speaking for the majority, Justice John Paul Stevens wrote: “We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” (Opinion at 2). Stevens argued that it is the Supreme Court’s “responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel.’” (Opinion at 17). “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less,” Stevens added. Following the decision, the Court remanded Padilla’s case for a determination as to whether ineffective assistance of counsel resulted in prejudice against Padilla. (Id.).
Justices Antonin Scalia and Clarence Thomas dissented, arguing that the majority’s holding would result in a “significant further extension” of the Sixth Amendment’s right to effective counsel. (Dissent at 2). Writing for the two dissenters, Scalia argued: “There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand – to wit, the sentence that the plea will produce, the higher sentence that conviction after trial might entail, and the chances of such a conviction.” (Dissent at 3). Accordingly, Scalia reasoned, “[b]ecause the subject of the misadvice here was not the prosecution for which Jose Padilla was entitled to effective assistance of counsel, the Sixth Amendment has no application.” (Id.).
Chief Justice John Roberts and Justice Samuel Alito concurred with the majority, agreeing that Padilla’s lawyer had violated the right to effective counsel because his attorney had given him “unreasonable and incorrect information concerning the risk of removal.” (Concurrence at 14). However, Roberts and Alito disagreed with the majority on another front, arguing that they would find a violation of the Sixth Amendment only where, as in this case, a criminal defense lawyer had provided “affirmative misadvice” to noncitizens facing the risk of deportation as a result of their plea agreement. (Id.). Writing for the concurring justices, Alito expressed concern about the implications of the majority’s holding: “a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise.” (Id.). Alito argued that the majority’s holding imposes a severe “burden” on defense lawyers (Concurrence at 7) and will result in “much confusion and needless litigation.” (Concurrence at 1).