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FAIR Legislative Update January 7, 2013

January 7, 2013
FAIR Legislative Update

VP Biden: Hispanics “the Center of this Nation’s Future”

Seeking to consolidate support from Hispanic lawmakers ahead of an all-out amnesty battle, Vice President Joe Biden last week called Hispanics “the center of this nation’s future.”  (Politico, Jan. 3, 2013) The Vice President made these remarks in a speech at a Congressional Hispanic Caucus Institute (CHCI) event held to welcome Hispanic Members of the 113th Congress.  (CHCI website, Jan. 4, 2013) Biden was joined at the inside-the-beltway event by other Administration officials, including Secretary of Interior Ken Salazar and Secretary of Labor Hilda L. Solis.  (Id.)

Pandering, in his speech Biden touted the strength of the Hispanic community and its many accomplishments.  He celebrated the record number of Hispanic lawmakers in the 113th Congress; he also noted that Hispanics now make up a quarter of U.S. school children.  “What’s finally happened is the American people, the American people have finally begun to understand…the awesome potential, future potential of the Hispanic community…. Now the nation — and I might add the hemisphere — understands the Hispanic community must be courted,” said Biden.

The Vice President also predicted that Republicans would cave under pressure to pass amnesty legislation.  In the face of significant Hispanic support for President Obama in the November elections, Republicans, he said, have had a “rapid epiphany” about immigration reform.  (Politico, Jan. 3, 2013)

Biden encouraged the audience to get the Hispanic community mobilized to push for amnesty legislation.  ”It’s no longer about what can be done for the Hispanic community,” he said. “The question is what the Hispanic community is going to do to take this country to a totally new place.” (CHCI website, Jan. 4, 2013)  Republicans, he said, need to know that “[if] you ignore the needs and concerns of the Hispanic people, you will not win, you will not win.”  (Politico, Jan. 3, 2013)

Administration Announces Final Rule to Circumvent Federal Admission Laws

Homeland Security Secretary Janet Napolitano announced last week that the Administration has issued its final rule to allow illegal aliens to circumvent federal statutes governing admission. (See USCIS Final Rule, Jan. 3, 2013; see also Sec. Napolitano Press Release, Jan. 2, 2013)  The new rule issued by U.S. Citizenship and Immigration Services (USCIS) makes it easier for certain illegal alien family members of U.S. citizens to stay in the U.S. while they seek a green card. The USCIS proposed rule does this by creating broad exceptions to the 3 and 10-year bar to admission found in the Immigration and Nationality Act (INA). 

To help deter illegal immigration and marriage fraud, in 1996 Congress added the 3 and 10-year bars to Section 212 of the INA.  Section 212 provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years.  (See INA § 212(a)(9)(B)(i))  Under current law USCIS may grant certain illegal alien relatives a waiver to the 3 and 10-year bar, but the illegal alien must apply for the waiver outside of the U.S. at a consular office.  (INA § 212(a)(9)(B)(v)) 

The final rule circumvents this statute by allowing certain illegal alien relatives of U.S. citizens to stay in the U.S. while they apply for the waiver.  Specifically, the rule allows these illegal aliens to apply for and receive a “provisional waiver” of the 3 and 10-year bar while in the U.S. so long as they can show that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative “extreme hardship.” 

The core impact of the Administration’s proposed rule will be to encourage relatives of U.S. citizens to come the U.S. unlawfully. Once in the U.S., all the alien will need to do is apply for a provisional waiver from the 3 and 10-year bar and apply for a green card.  If USCIS grants the illegal alien a provisional waiver under the new rule, the illegal alien is immune to the statutorily prescribed bars to admission. The effect is such that when the illegal alien leaves the U.S. to complete their consular interview in their home country — as required by the green card process — they will not be barred from returning to the United States.

While the new rule essentially destroys the deterrent effect created by the 3 and 10-year bars, Secretary Napolitano touted the rule as necessary to unify families. “This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Napolitano. (Sec. Napolitano Press Release, Jan. 2, 2013)

Moreover, at the behest of the amnesty lobby, the Administration has made clear it plans to consider expanding the rule even further to grant waivers to additional categories of illegal aliens. In particular, during a stakeholder phone call discussing the new rule, USCIS Director Alejandro Mayorkas emphasized the agency will consider granting the same waivers to illegal alien relatives of green card holders. Mayorkas also clarified that illegal aliens who have been in removal proceedings but whose cases have been administratively closed or terminated will be eligible to apply for the provisional waiver. (See Letter from DHS Secretary Napolitano to Harry Reid, Aug. 18, 2012; see also FAIR Legislative Update, June 12, 2012)

The new rule is scheduled to take effect March 4, 2013.

New Border Crossing Station Will Be Fully Automated

A few days after Christmas, U.S. Customs and Border Protection (CBP) released a final rule establishing the first automated border crossing station in Big Bend National Park along the U.S.-Mexico border in Texas.  (See Final Rule, Dec. 28, 2012) The new Boquillas crossing facility will permit U.S. citizens and certain classes of aliens to travel between Boquillas, Mexico and Big Bend National Park. (Id.) The new facility will be automated based on remote communication via computer, replacing the traditional face-to-face interaction with border agents. (NextGov, Dec. 31, 2012) Kiosks equipped with two-way audio-video technology will electronically connect border-crossers with CBP agents stationed approximately two hours away in El Paso, Texas, who will verify travel documents remotely. (Id; see also Notice of Proposed Rulemaking, Oct. 28, 2011) If a CBP agent determines that in-person interaction is required, a nearby CBP officer will then be called to assist. (See Final Rule, Dec. 28, 2012)

While CBP expects that the majority of individuals who take advantage of the facility will be U.S. citizens traveling to Mexico, the facility will serve as a Class B port of entry for foreign nationals into the United States. (Id.)

Class B ports of entry can admit to the U.S. the following types of foreign nationals:  (Id.; see also Notice of Proposed Rulemaking, Oct. 28, 2011)

U.S. officials reportedly closed the original face-to-face Boquillas border crossing facility “out of precaution” following the 9/11 attacks. (NextGov, Dec. 31, 2012)  According to the former Big Bend National Park Superintendent, Jose A. Cisneros, reopening the station will create a new point of entry for organized crime.  “Drug cartels will view the new station as a back door to the United States,” Cisneros told reporters. (ABC News, Jan. 2, 2013)

The Boquillas station will officially open on Jan. 28, 2013. (ABC News, Jan. 2, 2013) In its first year, the Administration expects the station to serve between 15,000-20,000 travelers. (See Final Rule, Dec. 28, 2012)

King Fights to End Birthright Citizenship

True immigration reformer Rep. Steve King (R-IA) introduced legislation (H.R. 140) the opening day of the 113th Congress that would end the practice of automatically granting citizenship to the children of illegal aliens born in the United States. Called the “Birthright Citizenship Act of 2013,” H.R. 140 prevents the children of illegal aliens from attaining citizenship by requiring that those born in the U.S. must have at least one parent who is either: 1) a U.S. citizen or national, 2) a green card holder, or 3) an alien actively serving in the U.S. military, to receive citizenship at birth. (Id.)

FAIR has long argued that the Citizenship Clause of the 14th Amendment, originally created to ensure emancipated slaves were recognized as citizens following the Civil War, has been grossly misinterpreted over time. The 14th Amendment was never meant to guarantee citizenship to illegal aliens, but only to “persons born in the United States… subject to the jurisdiction thereof….” (emphasis added) (See FAIR Website on Birthright Citizenship, Sept. 2010) The key lies in the interpretation of the phrase “subject to the jurisdiction thereof.” Rep. John Bingham, who authored the Citizenship Clause, explicitly defined the intent of the amendment as “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is…a natural born citizen.” (Id.) Thus, the drafter of the Amendment never intended children born in the U.S. to illegal aliens and temporary visitors  to receive U.S. citizenship.

Rep. King argues his bill is necessary to stop the birthright citizenship magnet that attracts illegal aliens to the United States. “We need a common sense solution to fix the flawed interpretation of the Constitution’s citizenship clause,” said Rep. King in a statement. (See Rep. King Press Release, Jan. 4, 2013) “The current practice of extending U.S. citizenship to hundreds of thousands of ‘anchor babies’ must end because it creates a magnet for illegal immigration into our country. Now is the time to ensure that the laws in this country do not encourage law breaking.” (Id.)

The legislation has at least a dozen co-sponsors, including Reps. Lou Barletta (R-PA), Diane Black (R-TN), Mo Brooks (R-AL), Michael Conaway (R-TX), John Culberson (R-TX), Virginia Foxx (R-NC), Phil Gingrey (R-GA), Louie Gohmert (R-TX), Walter Jones (R-NC), Jeff Miller (R-FL), Richard Nugent (R-FL), Lynn Westmoreland (R-GA), and Rob Woodall (R-GA).