FAIR Legislative Update July 5, 2011
DREAM Act Gets Senate Hearing
The Senate Judiciary Subcommittee on Immigration, Refugees and Border Security held a hearing on the DREAM Act amnesty bill (S.952) last week. (Politico, June 28, 2011) The hearing, chaired by the Act’s sponsor Sen. Dick Durbin (D-IL), took place before a hearing room stacked full of illegal aliens bused in by the open-borders lobby. (See FAIR’s Stein Report, June 29, 2011) “When I look around this room, I see America’s future, our doctors, our teachers, our nurses, our engineers, our scientists, our soldiers, our congressmen, our senators, and maybe our president,” Durbin recited in his opening statement. Sen. Durbin even asked seven illegal alien students who would qualify for amnesty under the bill to stand and be recognized for their achievements.
Subcommittee ranking member John Cornyn (R-TX) criticized some of the legislation’s major flaws in his opening statement, revealing that the DREAM Act is not tailored to the narrow class of high school valedictorians, Junior ROTC members, and college honor students that Sen. Durbin and the pro-amnesty lobby claim the legislation is designed to benefit. (See FAIR Legislative Update, May 16, 2011) “Under this version of the DREAM Act, a 35-year-old illegal immigrant with only two years of post-high school education would be eligible for a green card, regardless of whether they ever earn a degree,” he asserted. Sen. Cornyn also highlighted that under the bill, a 35-year-old illegal immigrant who has been convicted of two misdemeanors, regardless of how serious, would be eligible for a green card. In many states, misdemeanors include “driving under the influence of alcohol, drug possession, burglary, theft, assault, and many other serious crimes,” he said.
Following opening statements, several key Obama Administration cabinet members testified in support of the bill. Calling the DREAM Act a “priority for [the] administration,” Homeland Security Secretary Janet Napolitano, the head of the agency charged with enforcing U.S. immigration law, testified: “The DREAM Act should be seen in the broader context of this administration’s comprehensive approach to border security and to immigration enforcement…Over the past two years, our approach has focused on identifying criminal aliens and those who pose the greatest security and public safety threats to our communities…The DREAM Act supports these important priorities because only young people who are poised to contribute to our country and have met strict requirements regarding moral character and criminal history would be eligible.”
Education Secretary Arne Duncan also testified before the Subcommittee. “By creating opportunities for these bright and talented youth to attend college, they will contribute much, much more than they ever could as struggling workers moving from one under-the-table job to another…With a college education, they can fill important jobs in fields today facing critical shortages, such as engineers and nurses and teachers.” However, Steve Camarota, Director of Research at the Center for Immigration Studies (CIS) who also testified before the Subcommittee, disagreed with Secretary Duncan’s testimony. “Census Bureau data show that the income gained for having some college, but no degree of any kind, is quite modest, so the resulting gain in tax revenue will be small….”
The hearing comes on the heels of Director Morton’s policy memo authorizing ICE Field Office Directors, Special Agents in Charge, and all Chief Counsel to refrain from enforcing U.S. immigration law against individuals who meet the requirements for amnesty under the DREAM Act. (See FAIR Legislative Update, June 27, 2011; see also Memo from John Morton to ICE personnel, June 17, 2011) Sen. Chuck Grassley (R-IA) used the Q & A portion of the hearing to question Secretary Napolitano about the memo, asking, “Does this change in course reflect an administrative bypass of Congress?” Napolitano responded, “No, it doesn’t bypass Congress at all. It recognizes that we have sworn to uphold the existing immigration law, which we will, but we are in essence in many respects a prosecution office, and prosecution offices have priorities.”
Despite Napolitano’s denial, the Morton memo is a clear indication that the Administration is trying to achieve administratively, what it could not legislatively. The Senate rejected the DREAM Act last session 55-41 (the vote was on a cloture motion to end debate on the bill, a motion that requires 60 votes to pass). (See FAIR Legislative Update, Dec. 20, 2010) The legislation was first introduced in 2001, and although re-introduced every session since then, has been continually rejected by Congress. Now, with a Republican majority in the House, even the pro-amnesty lobby recognizes there is little chance of passing the DREAM Act this legislative session. “Does it look like we have a good chance in this Congress with [House Judiciary Chairman] Lamar Smith driving the message for Republicans? No, it looks pretty grim indeed,” said Frank Sharry, Executive Director of America’s Voice. (Roll Call, June 30, 2011)
Stay tuned to FAIR for more DREAM Act updates…
At a press conference in the White House last week, President Obama avoided answering whether he would sign a mandatory E-Verify law if Congress presented one to him. “[I]f you receive a mandatory E-Verify bill only, without legalization, are you planning to veto that bill?” a reporter asked the President. “[W]e need comprehensive immigration reform,” replied the President. “I’ve said it before, I will say it again, I will say it next week and I’ll say it six months from now.” Indicating he wanted an amnesty attached to the E-Verify legislation, the President added, “We may not be able to get everything that I would like to see in a package, but we have to have a balanced package.”
Congressional Republicans rejected the notion of allowing mandatory E-Verify to be hijacked as part of a comprehensive immigration reform bill. “E-Verify should be considered as a stand-alone bill,” said House Judiciary Chairman Lamar Smith (R-TX). (CQ Today, June 29, 2011) “It is not an immigration bill, it’s a jobs bill,” he said of his own mandatory E-verify legislation. (Id.) Sen. Chuck Grassley (R-IA), ranking member of the Senate Judiciary Committee and chief sponsor of mandatory E-Verify legislation in the Senate, also rejected the President’s remarks. “[At the Dream Act hearing], members of the president’s Cabinet, who claimed to be speaking for the administration, said they wanted an individual piece of immigration legislation passed. Yet today, the president said we have to consider E-Verify in a comprehensive immigration plan. It seems like the president wants it both ways.” (Id.)
Emails obtained through the Freedom of Information Act (FOIA) reveal that senior Immigration and Customs Enforcement (ICE) officials attempted to cover-up a policy memo that directed ICE attorneys in Houston to dismiss hundreds of immigration cases. (Houston Chronicle, June 27, 2011) Internal memos released last week confirm that once the Houston Chronicle exposed the controversial directive and subsequent case dismissal, ICE officials attempted to publicly distance themselves from such lenient policies and deny that they ever existed. (Id.; 2011 ICE FOIA Request)
According to the Houston Chronicle, the story began in June 2010, when ICE Director John Morton issued a policy memo outlining which illegal aliens were to be considered enforcement priorities. In the memo, Morton stated ICE only has the resources to remove 400,000 illegal aliens a year, only about four percent of the illegal alien population. Rather than request additional funding to protect our nation’s border, Morton used his policy memo to instruct ICE agents to limit their enforcement focus to:
- Aliens who pose a dangers to national security or a risk to public safety;
- Aliens who have recently violated immigration controls; and
- Fugitive aliens who are violating a final order of removal.
Shortly thereafter, records show that ICE attorneys met on August 2, 2010 to discuss how to apply the limited enforcement priorities set forth in the memo. (Houston Chronicle, June 27, 2011) Upon returning from the leadership meeting, Gary Goldman, Chief Counsel of the ICE Houston office, issued a memo to his staff of lawyers, encouraging them to determine whether new and existing cases would be “amendable to the exercise of prosecutorial discretion.” (See 2011 ICE FOIA Request) Goldman seemingly instructs attorneys to exercise even more discretion with regard to criminal aliens, saying that “if the crime is remote in time and the alien has a substantial number of equities, all factors will be weighed to determine if an exercise of [prosecutorial discretion] is appropriate.” (Id.) Later, in a similar August 16 email, Goldman reminded attorneys that their “universe of opportunities to exercise prosecutorial discretion is large.” By August 24, the Houston office had dismissed 246 immigration cases, or 12.5 percent of filings. (Houston Chronicle, June 27, 2011; 2011 ICE FOIA Request) Director of Field Legal Operations, Riah Ramlogan, emailed Goldman on August 10, 2010 to thank him for his efforts, calling his directive “outstanding.” (2011 ICE FOIA Request)
This leniency did not go unnoticed by the American Immigration Lawyers Association (AILA), a pro-immigration organization. Houston immigration attorneys began receiving unsolicited motions to dismiss their clients’ cases and some reported appearing in court only to find ICE attorneys already requesting judges to terminate removal proceedings. (Houston Chronicle, June 27, 2011) In an email to ICE officials, AILA representative Raed Gonzales “seemed excited” about ICE’s push for dismissals. (2011 ICE FOIA Request) However, according to emails released in the FOIA request, AILA is thought to be the organization who communicated ICE’s new case tactics to the press, which generated more scrutiny for the agency.
FOIA emails now indicate that when the media got word of the ICE policy, officials at ICE began to panic. On August 20, 2010, Ramlogan wrote Goldman again, pointing out that his memos “overlooked” ICE policy to enforce the law against other aliens as well, at which point Goldman rescinded his memo. Publicly ICE insisted, as Homeland Security Secretary Janet Napolitano continued to insist at last week’s DREAM Act hearing, that it was all a case of a single office misinterpreting a directive. (Houston Chronicle, June 27, 2011; See this week’s Legislative Update for more information on the latest DREAM Act hearing)
On October 21, 2010, several Senators from the Judiciary Committee wrote Janet Napolitano, expressing concern over the record number case dismissals. ( 2011 ICE FOIA Request) The Senators said that they believed the ICE directive on dismissals applied nationwide even though the media had only picked up on the Houston cases. “Numerous criminal aliens are being released into society and are having proceedings terminated simply because ICE has decided that such cases do not fit within the Department [of Homeland Security]’s chosen enforcement priorities.” The letter continues,
“The ICE directive, along with other recently announced detention and removal policies, raises serious questions about your Department’s commitment to enforce immigration laws.”
In response to the letter, Department of Homeland Security official Nelson Peacock, Assistant Secretary for Legislative Affairs, responded to the senators that the “directive you cited in your letter instructing ICE attorneys to seek the dismissals of immigration proceedings involving certain classes of criminal aliens does not exist.” (Houston Chronicle, June 27, 2011) The revelations in the emails produced by the FOIA request, however, makes clear that such a directive did exist and was condoned, and even praised, by senior ICE officials. (Id.)
Mr. Goldman, announced his retirement last fall after news of the scandal broke. (Id.) ( 2011 ICE FOIA Request) Riah Ramlogan, who found Goldman’s tactics “outstanding,” has since been promoted to second-in-command of the legal department at ICE headquarters. (Houston Chronicle, June 27, 2011) Meanwhile, ICE Director John Morton has continued to issue policy encouraging ICE agents to refrain from enforcing the law. (See FAIR Legislative Update, June 27, 2011)
In the Georgia case of Georgia Latino Alliance for Human Rights v. Deal (“Deal”), Federal District Court Judge Thrash last week preliminarily enjoined Sections 7 and 8 of Georgia HB 87. Section 7 created a state crime which mirrored the federal crimes of 8 U.S.C. § 1324(a)—transporting illegal aliens, harboring illegal aliens, and encouraging or inducing illegal aliens to enter or remain in Georgia. Although the Supreme Court just ruled that it is perfectly acceptable for States to pass laws that “trace” federal immigration laws, Chamber of Commerce v. Whiting, Judge Thrash found Section 7 preempted because “state prosecutorial discretion and judicial interpretation will undermine federal authority ‘to establish immigration enforcement and strategies.’” Georgia Latino Alliance for Human Rights v. Deal, Slip Op. 33 (June 27, 2011) (quoting United States v. Arizona, 2011 WL 1346945, *8 (2011)).
Additionally, Judge Thrash held that Section 7 was preempted because unlike the civil penalties at issue in Whiting, federal law did not have a carve-out allowing States to adopt laws creating criminal penalties that mirror federal law. (Deal, Slip Op. at 34.) Finally, Judge Thrash held that Section 7 was preempted because although it addresses crimes that occur within the State of Georgia, this provision “does not address an area traditionally subject to state regulation. (Id. at 34.)
Judge Thrash then addressed Section 8. Section 8 authorizes law enforcement officers to check the immigration status of criminal suspects “when such officer has probable cause to believe that a suspect has committed a criminal violation” and when the suspect cannot produce certain documents, such as a valid driver’s license or any document sufficient to establish identity. (Ga. HB 87, Section 8(b)) Judge Thrash held Section 8 is preempted by federal law because, he argued, state and local officers are not allowed to arrest individuals for being illegally present in the U. S. “unless specifically authorized to do so by the Attorney General under special conditions.” (Id. at 22 (citations omitted)). He argued, “Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state …” (See 8 U.S.C. § 1357(g)(1)) However, he ignored 8 U.S.C. § 1357(g)(10) which states “nothing [under § 1357] shall be construed to require an agreement … in order for any officer or employee of a State … to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”
It is unclear what the next course of action will be in Georgia Latino Alliance for Human Rights v. Deal. The State of Georgia could appeal the preliminary injunction like the State of Arizona did in its SB 1070 litigation. The other option is to proceed in the district court and attempt to convince a district court judge that the statutes are constitutional and avoid a permanent injunction.