FAIR Legislative Update June 6, 2011

Alabama Passes Toughest Immigration Law in the U.S.

On Thursday, June 2, the Alabama Legislature passed arguably the toughest state immigration bill in the United States.  House Bill 56, much like Arizona’s SB 1070, covers a wide array of immigration matters including employment, voting, education, and enforcement.  HB 56 requires that all employers in the state use E-Verify (Sections 9 & 15). It also requires law enforcement officers to verify the immigration status of a person lawfully stopped for a violation of state or local law when the officer has reasonable suspicion the person is unlawfully present in the U.S.  The bill also prohibits sanctuary practices by state and local officials (Sections 5 & 6) and prohibits concealing, harboring, and transporting illegal aliens pursuant to federal law 8 U.S.C. 1324 (Section 13).

The passage of House Bill 56, authored by state Representative Micky Hammon (R), came after weeks of debate and hard work.  The bill first passed the Alabama House on April 5 and then traveled to the state Senate for approval.  There, state Senator Scott Beason (R) offered a substitute language with significant improvements.  The Senate passed the bill on May 5 and then sent it to conference committee, where several important provisions were added, such as mandatory E-Verify.  Then, in the last week of the legislative session, the Alabama House and Senate adopted the conference committee report.

Throughout the process, Senator Beason worked closely with Kris Kobach, of Counsel for the Immigration Reform Law Institute, to improve the language and tailor it to the Supreme Court’s recent decision in Chamber of Commerce v. Whiting.  Supporters hope that this expert advice will allow HB 56, now called the “Beason-Hammon Alabama Taxpayer and Citizen Protection Act,” to withstand hostile legal challenges by illegal immigration advocates. 

HB 56 was sent to Alabama Governor Robert Bentley, who is expected to sign the bill.

New York, California Revolt against Secure Communities

In the latest effort by amnesty advocates to thwart immigration enforcement, New York Governor Andrew Cuomo announced last week he was suspending the State’s cooperation with Secure Communities because of its impact on families, immigrant communities and law enforcement. (CNN, June 1, 2011)  In a letter to the U.S. Department of Homeland Security, Counsel to Governor Cuomo, Mylan L. Denerstein wrote “The heart of concern is that the program, conceived of as a method of targeting those who pose the greatest threat in our communities, is in fact having the opposite effect and compromising public safety by deterring witnesses to crime and others from working with law enforcement.” (Id.)

Secure Communities, however, does not target witnesses to crimes. It is a cooperative immigration enforcement program administered by Immigration and Customs Enforcement (ICE) and local enforcement agencies. Through the program, local enforcement officers submit the digital fingerprints of all individuals who are booked into local jails or state prisons for comparison against the federal immigration databases.  If the suspect is an alien, ICE notifies local officials, who then hold the aliens for removal upon release.

The open-borders lobby praised Governor Cuomo’s decision to pull the state from the program.  Congresswoman Nydia M. Velázquez, former Chair of the Congressional Hispanic Caucus, stated, “I thank Governor Cuomo for showing the leadership and foresight to suspend this misguided program, which does not reflect New York’s long history as a welcoming home for newly arrived immigrants. The Secure Communities initiative does not make our nation safer, but inhibits cooperation with law enforcement and violates immigrants’ due process rights.” (Governor Cuomo Press Release, June 1, 2011)   Donna Lieberman, Executive Director of the New York Civil Liberties Union, claims that although Secure Communities is touted as a public safety measure, it does not function that way. “Instead of protecting us, Secure Communities has been used as a shortcut to deportation for people who may have done nothing wrong,” she said. (Wall Street Journal, June 1, 2011)

New York and California are the latest states to attempt to defy a mandatory federal program to identify and remove criminal illegal aliens from the United States.  California, however, is attempting to opt-out of Secure Communities legislatively rather than through executive action.  (Fox News Latino, May 27, 2011) Last week, the California Assembly passed AB 1081, which requires local jurisdictions who wish to participate in Secure Communities expressly do so by passing a local ordinance, and permits only the submission of fingerprints of those convicted of – rather than arrested for – a crime.  (See AB 1081 at §2) Calling Secure Communities a “farce,” Assemblyman Tom Ammiano (D-San Francisco), who authored AB 1081, argued that his bill would protect public safety because immigrants would be more willing to report crime if they didn’t fear deportation. (Fox News Latino, May 27, 2011; LA Times, May 31, 2011) The fingerprint program “has actually harmed public safety and seriously undercut community policing strategies,” he said. (Fox News Latino, May 27, 2011) 

Last week’s events in New York and California come on the heels of Illinois Governor Pat Quinn’s decision in May to cease his State’s participation in the Secure Communities program. Governor Quinn told ICE officials that “due to the conflict between the stated purpose of Secure Communities and the implementation of the program, Illinois state police will no longer participate.” (Wall Street Journal, May 14, 2011; see also Letter from Gov. Quinn to Marc Rapp, acting Assistant Director Secure Communities, May 4, 2011)  Massachusetts Governor Deval Patrick has also joined the Secure Communities debate, announcing today that his State will not be participating in the program, while Minnesota and Washington have declined to join the program all together. (Boston Herald, June 6, 2011; Wall Street Journal, May 14, 2011)   

ICE officials defend Secure Communities, calling it a “critical…information sharing partnership” between ICE and the Federal Bureau of Investigations.  (Wall Street Journal, June 2, 2011) ICE also stressed that only the federal government determines whether immigration enforcement is necessary: “Only federal officers make immigration decisions, and they do so only after an individual is arrested for a criminal violation of state law, separate and apart from any violations of immigration law,” the statement added. (Id.) 

House Homeland Security Subcommittee Passes Key Border Security Bills

The House Subcommittee on Border and Maritime Security passed three border security bills last week, sending them to the full Homeland Security Committee for consideration.  (Subcommittee Markup, June 2, 2011)  The House panel also stood firm and rejected three amendments offered by Rep. Sheila Jackson Lee (D-TX) which would have stated every border town is not dangerous; required protection of all rights of persons (including illegal aliens) encountered along the U.S. border; and required safety provisions given to all persons (including illegal aliens) found to be enduring treacherous weather conditions and terrain along the border.  (CQ, June 2, 2011) 

One of the most notable bills, H.R. 1299, was sponsored by Chairwoman of the Subcommittee Candice Miller (R-MI).  The bill, deemed the Secure Border Act of 2011, would require the Department of Homeland Security (DHS) to design a comprehensive strategy for gaining operational control of the U.S. borders within five years.  The strategy must address certain border security issues, including staffing requirements; infrastructure investments; use of technology; and cooperative agreements with other law enforcement agencies.  The bill also mandates that DHS design a comprehensive measurement system that would analyze the effectiveness of security at all land, air, and sea ports of entry.  In order to properly evaluate the measurement system designed by DHS, the final version of the bill offered by Miller would require the head of Sandia National Laboratory to evaluate its suitability and statistical validity.

In a veiled reference to Homeland Security Secretary Janet Napolitano’s recent attempt to change the measure of security at the borders from “operational control,” H.R. 1299 reiterates that the term operational control will still be used as the measurement for the border security required by this bill.  (See The Washington Times, May 4, 2011)  Secretary Napolitano had deemed the phrase “operational control,” which was defined in 2006, to be “archaic” shortly after the Government Accountability Office (GAO) released reports noting that only 44 percent of the Southwest border and a meager two percent of the Northern border were under operation control.  (Id.;  P.L. 109-367; GAO Border Security, Feb. 15, 2011; GAO Border Security, March 30, 2011) 

H.R. 1299 provides $5,000,000 in funding for these measures by re-appropriating funds which would have been spent on the DHS Office of Secretary and Executive Management.  (See Subcommittee Markup, June 2, 2011)  In addition, the bill has an accountability mechanism that requires DHS to submit reports to Congress 60 days after the enactment of the bill into law, and annually thereafter. 

The second bill the Border and Maritime Security Subcommittee passed was H.R. 1922, sponsored by Rep. Ben Quayle (R-AZ).  This bill addresses the problems that U.S. Customs and Border Patrol (CBP) agents face when they are not allowed access to protected federal lands in border regions.  Over 40 percent of the land near the United States southwestern border is governed by the Department of the Interior and the Forest Service, but the area also accounts for 97 percent of CBP’s apprehensions of illegal aliens.  (GAO Southwest Border, Oct. 19, 2010) GAO has released no less than three reports recently to document how CBP agents are limited in their abilities to protect and secure the border due to restrictions of environmental and other protectionist laws in this crucial area.  (See GAO Southwest Border, Oct. 19, 2010; GAO Border Security, Nov. 18, 2010; GAO Southwest Border, April 15, 2011)  The reports highlight disconcerting roadblocks for CBP agents, including laws that limit access to land, excessive restrictions on activity, and delays which made enforcement in some areas moot by the time CBP agents were finally allowed onto the land.  (Id.)  H.R. 1922, however, would open up these doors for CBP, allowing them access to federal lands for security activities, including routine motorized patrols and the deployment of temporary tactical infrastructure.  In order to continue to guard and preserve the land, the bill notes that the security activities shall be conducted in a manner that DHS determines will best protect the natural and cultural resources of the land.  The bill does not impact any private or state-owned land, and only applies to those federal lands within 150 miles of the Southwest border.

Finally, the Subcommittee passed the Jaime Zapata Border Enforcement Security Task Force Act (BEST).  (H.R. 915)  ICE Agent Jaime Zapata was brutally shot and killed while fighting drug cartels in Mexico.  (See FAIR Legislative Update, Feb. 22, 2011)  The bill would create a task force composed of federal, state, local, tribal and foreign law enforcement agencies dedicated to better securing the nation’s borders.  The bill is designed to increase collaboration and information-sharing among agencies including: ICE; CBP; the U.S. Coast Guard; Drug Enforcement Administration; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Federal Bureau of Investigation; and the U.S. Attorney’s Office.  Foreign law enforcement agencies specifically named in the bill include Mexico’s Secretaria de Seguridad Publica; the Canada Border Services Agency; the Ontario Provincial Police; and the Royal Canadian Mounted Police. 

The full Homeland Security Committee will consider the measures later this month.  (CQ, June 2, 2011)

House Adds Immigration Amendments to FY 2012 Homeland Security Appropriations Bill

The House on Thursday passed with 231 votes a Homeland Security appropriations bill, H.R. 2017, that would provide the agency with $40.6 billion for fiscal year 2012.  (National Journal, June 3, 2011) Key programs funded by the bill include E-Verify at $132 million, 287(g) at $5.4 million, and over $5 billion for border security fencing, infrastructure, and technology.

True immigration reformers successfully offered numerous immigration enforcement amendments which FAIR supported. These include:

• Rep. Ted Poe’s (R-TX) amendment to provide an additional $10 million for cell phone infrastructure along the rural areas of the border to help American citizens in those areas call the Border Patrol for help (adopted 327-93);
• Rep. Ed Royce’s (R-CA) amendment to provide an additional $1 million to assist local governments in implementing 287(g) programs (adopted 268-151);
• Rep. Chip Cravaack’s (R-MN) amendment to prohibit ICE from using taxpayer funds to release or employ “alternatives to detention” for illegal aliens who commit offenses for which detention is required under the INA (adopted 289-131);
• Rep. Ted Poe’s (R-TX) amendment prohibiting DHS funds from being used to contravene the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) (adopted via voice vote); and
• Rep. Ted Poe’s (R-TX) amendment prohibiting DHS funds from being used to grant humanitarian parole or deferred action to an alien for any reason other than on a case-by-case basis for urgent humanitarian reasons or significant public benefit (adopted via voice vote).  (See FAIR Legislative Update Apr. 25, 2011; see also FAIR Legislative Update Mar. 14, 2011)

House members also offered immigration amendments that FAIR opposed, including:

• Rep. David Cicilline’s (D-RI) amendment decreasing border security fencing, infrastructure, and technology funding by $336 million (rejected 154-266); and
• Rep.  Jared Polis’ (D-CO) amendment prohibiting DHS funds from being used to carry out the 287(g) program (rejected 107-313). 

As passed, the bill cuts $1.2 billion from the Department’s current budget and provides $2.6 billion less in funding from President Obama’s requested amount. (National Journal, June 3, 2011) The bill now goes to the Senate for consideration.  Stay tuned to FAIR for updates on the Homeland Security budget…

Maryland Residents Fight Back Against Tuition Breaks for Illegal Aliens

Last Tuesday, Maryland true immigration reform activists turned in 62,496 signatures in a first step to preventing in-state tuition rates for illegal aliens.  (Washington Post, June 1, 2011)  The group needs just over 55,000 signatures to force a vote on the measure providing tuition breaks to aliens in Maryland illegally.  (Id.; Maryland State Board of Elections 2012)   In order to continue the fight against illegal immigration, one-third of the total number of needed signatures had to be submitted by May 31 at midnight.  (Maryland State Board of Elections 2012)   Maryland’s Governor, Martin O’Malley, signed a bill into law earlier this legislative session that allowed illegal alien students who have attended Maryland high schools for three years to receive in-state tuition at Maryland colleges. (SB 167; See FAIR Legislative Update, April 18, 2011) 

Although the group has obtained the number of signatures needed to put enactment of the law on hold until after the voters of Maryland decide the matter, the Board of Election must still verify that all of the signatures submitted are valid.  (WMAL, June 2, 2011;  Maryland State Board of Elections 2012) To that end, the Board suggests that petitions exceed the required number by 20-30 percent, as many signatures are found to be invalid.  (Maryland State Board of Elections 2012)  Now that the first hurdle has been cleared, the remaining signatures may be collected until June 30. (Id.)  In order to appear on the ballot, petitioners must collect valid signatures representing three percent of the number of votes cast in the last gubernatorial election and the names must match those names appearing on Maryland’s voting rolls.  (Washington Post, June 1, 2011)

Incoming DNC Chair: Republicans Believe Illegal Immigration Should be a Crime

At a recent Christian Science Monitor breakfast, Rep. Debbie Wasserman-Shultz (D-FL) denounced Republicans for thinking that illegal immigration should “in fact be a crime.”  (Fox News, May 31, 2011)  The incoming chairwoman of the Democratic National Committee told listeners that Democrats want “comprehensive immigration reform” and that the 12 million illegal aliens currently in the U.S. are “a necessity” for the economy.  She then said that the general “Republican solution … in the last three years is that we should just pack them all up and ship them back to their own countries and that in fact it should be a crime and we should arrest them all.” That, she said, is what Rep. Sensenbrenner’s 2005 legislation proposed.

Rep. Wasserman-Shultz may be dismayed to learn that illegal immigration is, in fact, already a crime.  As codified in 8 U.S.C. § 1325, federal law provides that an alien who unlawfully enters the United States is guilty of a misdemeanor, punishable by up to six months in prison.  (See also INA § 275(a))  Second and subsequent offenses are felonies, punishable by up to two years in prison. (Id.)  Moreover, federal law provides that any alien who is present in the U.S. in violation of the law is deportable and “shall be removed” subject to an order.  (See generally 8 U.S.C. § 1227(a)(1)(A) and (B); INA § 237(a)(1)(A) and (B))

Wasserman-Shultz may also be embarrassed to learn that Rep. Jim Sensenbrenner’s 2005 immigration bill (H.R.4437) proposed nothing that would have altered the fact that illegal entry is a crime.  What H.R.4437 addressed was visa overstays, which account for roughly 30 to 40 percent of the illegal alien population in the U.S.  Federal law provides that overstaying one’s visa is only a civil offense, not a criminal offense.  (See generally INA § 222(g) and § 212(a)(9)(B))  By proposing criminal penalties for overstaying one’s visa, and thus being unlawfully present in the U.S., H.R.4437 sought to put one violation of the law on par with the other. (See H.R.4437 § 203)