FAIR Legislative Update August 7, 2013
Last week, the National Citizenship and Immigration Services Council President, Kenneth Palinkas, sent a letter to several House Republican leaders expressing concern over their plans to draft and bring to the House floor legislation to amnesty the estimated two million illegal aliens who allegedly arrived in the United States as minors. (See Council Letter, July 30, 2013; see also The Daily Caller, July 31, 2013) “I write to you today to share several security questions and concerns regarding your drafting of a DREAM Act proposal….” Palinkas wrote. (Id.)
The letter, sent to House Majority Leader Eric Cantor (R-VA), Judiciary Chairman Bob Goodlatte (R-VA), Immigration Subcommittee Chairman Trey Gowdy (R-SC), and Budget Committee Chairman Paul Ryan (R-WI), specifically asks the GOP leaders how they plan to prevent the Obama Administration from circumventing the parameters of any DREAM Act Congress enacts. “What is to stop the Administration from simply issuing another round of non-enforcement orders (written or oral) that would eviscerate any attempted limitations in your bill?” (ABC News, July 31, 2013)
Expressing discontent over how the Administration is already running its executive DREAM Act — the Deferred Action for Childhood Arrivals (DACA) program — Palinkas also asked the GOP leaders how they would prevent the Administration’s current practice of allowing “adult inmates in jails” to apply and obtain legalization and work authorization under any future legislation. (See Council Letter, July 30, 2013) “Why would we not expect this policy to not only continue, but be expanded if your bill were to pass?” he inquired.
Palinkas also used the DACA program to discuss several problems plaguing the agency. “Our agency is in dire need of reform. Our experience with the Administration’s Deferred Action program demonstrates just how flawed the situation is: over 99 percent of legalization applications are approved, we are not permitted to conduct needed in-person interviews for deferred action cases, and our ability to remove dangerous criminals through the deportation process is impeded.” Lamenting the Administration and USCIS leadership “perceives illegal aliens as customers,” Palinkas finally concluded the agency has “been turned into an approval machine.” (Id.)
The letter was written following the House Immigration Subcommittee’s hearing exploring DREAM Act-style legislation. (See FAIR Legislative Update, July 30, 2013) Affiliated with the pro-amnesty AFL-CIO, the Council represents 12,000 immigration services officers and staff employed by the U.S. Citizenship and Immigration Services (USCIS).
Last Tuesday, over 100 Republican donors sent a letter to Republican Members of Congress asking them to act on comprehensive immigration reform, including granting amnesty to the estimated 11-12 million illegal aliens in the United States. (Breitbart, July 30, 2013) The letter’s signatories include Karl Rove; former Vice President Dan Quayle; and former Secretary of Commerce and Republicans for Immigration Reform founder, Carlos Gutierrez. (Id.)
Taking a page from Democrat opposition playbook, the GOP donors’ letter paints Republicans who oppose amnesty and stand up for the rule of law as obstructionist. “Standing in the way of reform ensures that we perpetuate a broken system that stifles our economy, leave millions of people living in America unaccounted for, maintain a porous border, and risk a long-lasting perception that Republicans would rather see nothing done than pass needed reform,” the letter reads. (New York Times, July 30, 2013) The GOP donors told lawmakers that reform of the nation’s immigration system is necessary to the Republican Party’s future.
The effort, organized by Carlos Gutierrez, is timed to target Republicans in Congress as they head home for the August recess. Gutierrez called the letter “the beginning of a campaign to lobby Republican[s]…as they return to their districts.” (Breitbart, July 30, 2013)
The full text of the letter can be found here.
The U.S. Court of Appeals for the Third Circuit in Philadelphia reaffirmed its 2010 decision that two ordinances passed by the City of Hazleton are preempted by federal immigration law. (Lozano v. City of Hazleton, 2013 U.S. App. LEXIS 15256 (3rd Cir. July 26, 2013)) The two ordinances at issue were the Illegal Immigration Relief Act Ordinance (“IIRAO”) and Rental Registration Ordinance (“RO”). (Ordinances 2006-18, as amended by Ordinance 2006-40 and 2007-6 and Ordinance 2006-13) Approved in 2006, the two ordinances sought to prohibit the employment of unauthorized aliens and prohibit harboring of illegal aliens by providing them rental accommodations, respectively.
The ordinances were struck down by a federal district court in 2007, and the Third Circuit upheld that ruling in 2010. The City of Hazleton subsequently appealed to the U.S. Supreme Court. The High Court accepted the appeal and sent the case back to the Third Circuit for reconsideration in light of their recent decision upholding a similar Arizona law against a preemption challenge. (See Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011))
Although finding on remand that the Supreme Court’s Whiting decision rejected some of their previous arguments and analysis, the Third Circuit again held the two ordinances are preempted by federal law. The court found the employment ordinance preempted because it applies to a much broader range of actors and activities than the Arizona law at issue in Whiting and what Congress intended in the Immigration Reform and Control Act of 1986 (“IRCA”). The court faulted the ordinance for not distinguishing between employees and independent contractors in its definitional section, stating that IRCA excluded independent contractors and casual labor from regulation. The court also faulted the ordinance for defining work too broadly to include all activities conducted by business entities, whereas IRCA limited its reach to employer-employee relationships.
The court also found the employment ordinance preempted because it undermines the express congressional objective of minimizing undue burdens on, and harassment of, employers by not containing an affirmative defense for employers who in good-faith comply with the I-9 process to verify immigration status as does IRCA. Likewise, the court found the ordinance preempted because it provides substantially fewer procedural protections than IRCA, which circumscribed sanctions with a detailed hearing and adjudication procedure.
With regard to the rental provisions in both the IIRAO and RO, the Third Circuit found that the Supreme Court in Whiting did not address the issue so their previous holding remains valid. Citing recent immigration-related decisions, such as U.S. v. Arizona, 132 S. Ct. 2492 (2012) and several sister circuit court decisions,the court reiterated that the rental provisions are impermissible as: (1) a regulation of immigration (by regulating residency based on immigration status); (2) field preempted (by interfering with the INA’s comprehensive scheme to regulate residence based on immigration status); and (3) conflict preempted (by interfering with the federal government’s discretion in, and control over the removal process and as inconsistent with federal anti-harboring laws).
Hazleton Mayor Joseph Yannuzzi said he was disappointed by the ruling and vowed that city officials will continue to solicit private donations to continue the court fight. (Associated Press, July 27, 2013) The City can petition for rehearing before the full court in the Third Circuit as the decision was a panel decision by three judges. Alternatively, it can file an appeal with the U.S. Supreme Court within 90 days after entry of the judgment.
The ordinance was originally enacted by Hazleton in response to growing crime rates and the drain on taxpayer resources resulting from illegal immigration. Serious crime in Hazleton nearly doubled in a mere two year span. (Welcome to Hazleton, 60 Minutes, Apr. 28, 2010) Former mayor Lou Barletta, now a U.S. Congressman representing Pennsylvania’s 11th congressional district, claimed that as a result of increased crime, Hazleton’s elderly residents are afraid to leave their homes. (Id.) Barletta cited as examples of the crime wave a 2010 murder by two unlawfully present Dominican nationals and a drug bust of an illegal alien caught selling crack cocaine on a playground, which incidentally took his detectives five hours to determine the alien’s identity as he possessed five different Social Security cards. (Id.)
At Hazleton hospitals, “un-reimbursed medical expenses for things like emergency room visits are up by 60 percent. Public school enrollments are up 25 percent. And the budget for teaching English as a second language has gone from $500 a year to more than $875,000.” (Welcome to Hazleton, 60 Minutes, Apr. 28, 2010) FAIR estimates that the fiscal burden of illegal immigration on Pennsylvania taxpayers is $1.4 billion resulting from an estimated 140,000 illegal aliens and 36,585 of their U.S.-born children.
During an immigration forum last week hosted by the AFL-CIO, longtime amnesty supporter Sen. John McCain (R-AZ) said the “border surge” provisions in the Senate-passed mass amnesty bill could be eliminated during a potential Senate-House compromise on immigration legislation. According to McCain, the amnesty provision is a “fundamental element” of the bill, but the “rest of it could be adjusted,” specifically mentioning provisions related to the border as an example. (Politico, July 30, 2013)
When the Senate and House pass different bills, they must resolve the differences in the legislation through a “conference committee.” After the conference committee reaches agreement on identical bill language, the newly-agreed upon legislation goes back to each chamber to vote for final passage.
McCain revealed that his initial support of the border surge amendment (Corker-Hoeven) was purely a political move rather than based on policy. “I voted for it so friends of mine would be comfortable that we are securing the border,” McCain said. (Id.) “But the real securing of the border is with technology, as opposed to individuals.” (Id.)
Remarkably, even the authors of the so-called border surge amendment, Sens. Bob Corker (R-TN) and John Hoeven (R-ND) indicated they are receptive to dramatic changes to their language. “All along, we’ve said we’re at halftime, not at the finish line,” Hoeven said last Tuesday. (Id.) “There’s going to be more work to do and we look forward to working with the House on what they come up with.” (Id.)
The Corker-Hoeven amendment still keeps the core amnesty-first, enforcement-later approach to the Senate bill. The Department of Homeland Security (DHS) will still be able to grant amnesty (registered provisional immigrant (RPI) status) in six months once a border security plan is submitted to Congress, and the amendment contains loopholes, allowing the Secretary of DHS to reject the bill’s “border security” provisions and replace them with whatever the Secretary sees fit.
On Sunday, House Majority Leader Eric Cantor (R-VA) reiterated that the House of Representatives will move multiple immigration bills instead of taking up the Senate’s 1,200 page “comprehensive” bill. “We’ve said we are not going to be bringing the Senate bill up — we don’t believe that that’s the right path toward an immigration reform bill,” the second ranking House Republican said. (Washington Times, Aug. 4, 2013) “I have said that we will be addressing the issue of immigration in the House, according to our terms, not the way the Senate did,” Cantor said. (Id.) “We’re going to do a lot more deliberative and smart [process] in the House.” (Id.)
Cantor, however, declined to specify when House Leadership would bring any immigration bills to the floor for a vote. “We will have a vote on a series of bills at some point… and it will deal with a variety of issues.” (Id.) By contrast, House Budget Committee Chairman Paul Ryan (R-WI) recently declared at a town hall meeting that the House would pass immigration legislation in October. (See FAIR Legislative Update, July 30, 2013) Congress is currently on its annual August recess and the House only has nine working days scheduled for September.
While Cantor would not reveal the timing of votes, he hinted at which bills could move first. “Border security is a really important issue,” said Cantor, in reference to the Border Security Results Act already passed by the Homeland Security Committee. (Id.) “I’ve been very active in promoting what I’m calling a kids bill… It says that you ought not hold kids liable for illegal acts of their parents,” said Cantor, describing legislation he is currently drafting based on the failed DREAM Act which grants amnesty to illegal aliens who claim to have been brought to the country as minors. (Id.)