FAIR Legislative Update May 16, 2011
President Obama Declares the Border is Secure
In a speech given in El Paso, Texas, President Obama told Americans the border is secure. The President quickly followed these remarks by declaring that it is now time for Congress to pass “comprehensive” immigration reform.
The President first made his case that the border is secure: “[I]n recent years, among one of the greatest impediments to reform were questions about border security…. And these concerns helped unravel a bipartisan coalition that we had forged back when I was in the United States Senate…. But over the last two years, thanks to the outstanding work of [Homeland Security Secretary Janet Napolitano] and [Customs and Border Protection Commissioner Alan Bersin] and everybody who’s down here working at the border, we’ve answered those concerns…. We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we’ve done.”
Having stated that the border is sufficiently secure, the President made the case that it was time for Congress to pass “comprehensive” immigration reform. He told his audience that granting amnesty to illegal aliens is a moral and economic imperative. America, he said, is defined as a “nation of immigrants – a nation that welcomes those willing to embrace America’s ideals and America’s precepts.” Ignoring the long-established rule of law on which citizenship is gained, the President said that “in embracing America, you can become American.”
The President acknowledged that illegal aliens have broken the rules. “They’ve cut in front of the line,” he said. “And what is also true is that the presence of so many illegal immigrants makes a mockery of all those who are trying to immigrate legally.” The President also acknowledged that the employment of illegal aliens also hurts American workers and upstanding employers: “[It] puts companies who follow the rules, and Americans who rightly demand the minimum wage or overtime or just a safe place to work—it puts those businesses at a disadvantage.”
Nevertheless, the President then outlined a four-step approach to tackling comprehensive immigration reform. First, he said, the government has to take responsibility for securing the borders. He reiterated that the Administration believes this first task has already been successfully accomplished. Second, the President said that businesses must be held accountable if they exploit undocumented workers. Third, the President said illegal aliens must “get right with the law,” meaning illegal aliens must pay their taxes, pay a fine and learn English. Finally, President Obama promoted expanding legal immigration so that it is “easier for the best and brightest to not only stay here, but also to start businesses and create jobs here.” Apparently forgetting the existence of the H-2A agricultural guest worker program and an item called the green card, the President said Congress must “provide our farms a legal way to hire workers that they rely on, and a path for those workers to earn legal status. And our laws should respect families following the rules [by] reuniting them more quickly instead of splitting them apart.” President Obama concluded his speech by rallying the audience around a renewed fight for the DREAM Act, amnesty legislation which was unable to pass in a Democrat-controlled Congress last session.
The President then headed back to D.C. to speak before the National Hispanic Prayer Breakfast on Wednesday, where he reiterated his El Paso speech. (See The New York Times, May 10, 2011; Real Clear Politics, May 12, 2011) At the breakfast, the President appealed to the emotional aspects of immigration reform. He once again described “comprehensive” immigration reform a “moral imperative when simply enforcing the law may mean inflicting pain on families who are just trying to do the right thing by their children.” Obama invoked the Old Testament book of Deuteronomy and cautioned listeners to “not have amnesia about how we populated this country.”
Although the Administration has touted the security of the border in recent engagements, most do not agree with the President’s renewed assertion that the border is secure. In a statement made after the President’s speech, Arizona Republican Senators John Kyl (R-AZ) and John McCain (R-AZ) remarked “we hear from our constituents on a daily basis, and, while some progress has been made in some areas, they do not believe the border is secure.” (Washington Post, May 13, 2011) A recent Rasmussen Report reveals that Americans living outside of Arizona agree, with 64 percent of U.S. Citizens polled saying the border is not secure. (Rasmussen Reports, May 13, 2011)
The Presidents’ speeches last week are an indication of how important immigration reform measures and the Latino vote will be in the 2012 election. As part of his campaign, the President will be attempting to cater to the Hispanic voters who overwhelmingly favored him in 2008, as well as political independents who want stronger border security. (Washington Post, May 13, 2011)
On the heels of President Obama’s speech last week in which the President touted the border as more secure than ever, members of the House Homeland Security Committee met to discuss the spreading violence brought to the United States by Mexican drug cartels. Led by Oversight, Investigations, and Management Subcommittee Chairman Michael McCaul (R-TX), the subcommittee heard from Department of Justice (DOJ) and Department of Homeland Security (DHS) officials on the cartels’ growing threat to national security.
Chairman McCaul began the hearing by directly challenging the President’s claim that the border is secure. “While I am pleased that we have added more resources,” McCaul said, “the border is not secure and it has never been more violent or dangerous. Anyone who lives down there will tell you that.” (Statement of Rep. McCaul, May 11, 2011)
McCaul suggested that the statistics DHS and other agencies are using to deem the border as “more secure” are based on definitions that omit many border atrocities. For example, he noted that the federal definition of “spillover violence,” referring to the increase in drug trafficking-related violence spreading from Mexico to the U.S., is based on the [FBI’s] Uniform Crime Report, which does not include key data such as kidnappings, extortions, home invasions and smuggling that are directly related to cartel violence. (Id.; See also Congressional Research Service, Southwest Border Violence: Issues in Identifying and Measuring Spillover Violence, Jan. 25, 2011) In Texas, however, explained Congressman McCaul , the Department of Public Safety’s (DPS) definition of spillover violence includes aggravated assault, extortion, kidnapping, torture, rape and murder. By this definition, Texas DPS Director Colonel Steven McCraw testified that there is “no question spillover violence is growing in Texas.”
Despite the disagreement about definitions, Congressman McCaul argued that there is no disagreement about the threat the U.S. faces from the drug cartels. He forcefully stated, “make no mistake: the drug cartels are here inside the United States.” The Congressman referred to the previous testimony of Sheriff Paul Babeu of Pinal County, Arizona, in which he said Mexican drug gangs literally do control parts of Arizona, arming themselves with radios, optics, and night-vision goggles. (Statement of Rep. McCaul, May 11, 2011) Zapata County, Texas Sheriff Sigifredo Gonzalez, Jr. also remarked that compared to the weapons used by the cartels, federal, state and local officers along the southwest border are not adequately armed. (Statement of Sheriff Gonzalez, Jr., May 11, 2011)
According to the witnesses’ testimony, the impact of drug cartels is not limited to the southwest border region. Amy Pope, Deputy Chief of Staff and Counselor to the Assistant Attorney General, testified that Mexican Drug Trafficking Organizations (DTOs) are present in at least 230 U.S. cities. This number has skyrocketed from the Mexican DTOs’ presence in roughly 50 cities in 2006. (Statement of Amy Pope, May 11, 2011) The violence in northern Mexico is in fact so severe, Ms. Pope reported that U.S. personnel are prohibited from driving from the U.S.-Mexico border to the interior of Mexico. The U.S. Department of State has also recently upgraded a travel warning to U.S. citizens, deterring unnecessary visits to northern Mexico. (Travel Warning, April 22, 2011; See FAIR Legislative Update, May 2, 2011) Despite these growing security and travel concerns, the Obama Administration has recently announced plans to move forward with the cross-border trucking provisions of the North American Free Trade Agreement (NAFTA), which allow Mexican long-haul trucks full access to U.S. highways. (See FAIR Legislative Update, Jan. 10, 2011)
To combat the cartel violence, Ms. Pope promoted a two-pronged approach for the DOJ to assist in bringing down the drug cartels. The first prong involves the DOJ increasing long-term investigations of drug cartels and increasing the prosecution of cartel leaders. Ms. Pope pointed out that the key to this prong is stopping the DTOs by disrupting their flow of money. In the past three years alone, she reported, the DOJ has led investigations which seized more than $300,000,000 in U.S. currency from DTOs. Ms. Pope said that the second prong of the strategy is for the U.S. to aid the Mexican justice system in investigating and prosecuting cases. Through both funding and inter-agency partnerships, the DOJ hopes to forge relationships which will assist Mexican officials in bringing down the cartels which are terrorizing both countries. (Statement of Amy Pope, May 11, 2011)
Despite continuing rhetoric from Administration officials that the border is safer than ever, Arizona’s Attorney General Thomas Horne testified that the “criminal enterprises based in Mexico are bringing a degree of brutality to crime in the United States that we have never experienced before.” (Statement of Attorney General Horne, May 11, 2011) Just last Monday, thirteen people were killed at Falcon Lake which straddles the Texas border with Mexico. (CNN, May 10, 2011) Twelve of those individuals are suspected members of a large drug cartel which reportedly uses the lake to transfer drugs to the U.S. by way of speedboat. (Id.) This is the same location where David Hartley, a 30-year-old U.S. citizen, was gunned down last September by drug cartel agents after jet-skiing with his wife on the lake. (CNN, April 9, 2011) The Mexican investigator looking into his Hartley’s death was beheaded a few days later. (Id.)
Chief of Police of McAllen, Texas, Victor Rodriguez, compared the violence in Mexico and the threat it poses to Texas communities as requiring a “September 11th type of response from our country.” (Statement of Chief Rodriguez, May 11, 2011) Chairman McCaul agreed with the severity of the situation, stating that “if this Administration continues to downplay the threat…the cartels will eventually attempt to take over our cities.”
Last week, the House Immigration Subcommittee held a hearing on Judiciary Chairman Rep. Lamar Smith’s (R-TX) Secure Visa Act (H.R. 1741). The Secure Visa Act aims to close loopholes in the current visa regulations to keep terrorists from entering and remaining in the country in two key ways: First, the bill clarifies the Secretary of Homeland Security’s explicit authority under the 2002 Homeland Security Act to issue and revoke visas; and second, it increases the number of Visa Security Units (VSUs) in “high-risk” consular posts. The bill also eliminates judicial review of visa revocations.
The VSU program was created by the 2002 Homeland Security Act, which gave the Homeland Security Secretary the authority to assign DHS employees to diplomatic and consular posts. At these posts, DHS agents are authorized to provide advice and training to State Department consular officers regarding security threats relating to visa applications, to review visa applications, and to investigate consular matters under DHS jurisdiction. (See CRS Report: Visa Security Policy: Roles of the Departments of State and Homeland Security, May 6, 2011, p. 8; See also Homeland Security Act § 428)
Chairman Smith, who introduced the bill in early May, discussed why his bill is important. “[W]e must prevent terrorists from entering this country before they act. This legislation allows us to do just that,” he remarked. “Visa security is critical to national security. Terrorists will continue to enter the U.S. illegally if we do not improve and secure our visa process. The September 11 hijackers, the Christmas Day bomber, and the Texas university student terrorist serve as proof that the war on terror continues and that radical jihadists are as committed as ever to killing Americans. America must be equally committed to stopping them,” he said.
The majority of the witnesses testifying before the Subcommittee agreed with Chairman Smith. Calling the legislation “common-sense,” Janice Kephart, former counsel to the 9/11 Commission stated, “It is time to extend DHS authority to visa revocation, and expand the VSU operations around the globe. An extension of VSU authority to the entire visa portfolio simply fills a gap left by the Homeland Security Act of 2002….” Gary Cote, Deputy Assistant Director for International Affairs at Immigration and Customs Enforcement (ICE) commented on the importance of increasing the number of VSUs, “The best approach [to visa security] is a layered approach. We believe having a trained person on the ground is best.” Finally, the comments of Subcommittee ranking member Zoe Lofgren (D-CA) suggested H.R.1741 may have bipartisan support. “I think we might have more agreement than I thought when the hearing began,” said Lofgren.
On May 10th, Federal District Judge Clark Waddoups issued a temporary restraining order, preventing the implementation of Utah’s new immigration enforcement law, HB 497. In March 2011, Utah passed a package of four immigration-related bills, dubbed the “Utah Solution.” See FAIR’s March 14, 2011 Legislative Update. HB 497contains enforcement provisions similar to Arizona’s SB 1070 which require law enforcement officers to verify a person’s immigration status after that person has been lawfully stopped and that person is not carrying one of a handful of documents, including a valid state driver’s license from a state that does not give licenses to illegal aliens. HB 116 is a Utah-specific guest work amnesty program which authorizes illegal aliens already living in Utah to work, notwithstanding the prohibitions of federal law. HB 469 creates a Utah-based guest worker program which purports to allow U.S. citizens living in Utah to sponsor guest workers to live and work in Utah, even though the federal government has not authorized than individual to enter, live or work in the United States. HB 466 creates a Migrant Worker Program which authorizes Utah to directly contract with the state of Nuevo Leon, Mexico to facilitate the entry of Mexican foreign migrant workers’ lawful entrance into the United States to take jobs in Utah.
Two weeks ago, the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC) sued the State of Utah in an attempt to strike down HB 497, the enforcement bill, while leaving the other bills unchallenged. (See Utah Coalition of La Raza v. Herbert) The plaintiffs claim that HB 497 is “preempted” by federal law because: (1) it impermissibly regulates immigration, (2) parts of HB 497 are inconsistent with federal law, and (3) Mexico has made a “formal complaint” about HB 497. (Plaintiff’s Complaint, filed May 3, 2011) The plaintiffs also claim that HB 497 will lead to unlawful detentions and racial profiling by Utah officers, and that HB 497 violates the federally guaranteed “right to travel” of individuals that have driver’s licenses from states that do not verify whether the license holder is lawfully present in the United States. (Id.)
The court’s issuance of a temporary restraining order came just as HB 497 was to go into effect on May 10, 2011. Utah has not yet filed a brief responding to the plaintiffs’ arguments, but is expected to do so before the June 8th deadline. The defendants will likely argue that Congress has continuously passed legislation that encourages state and local governments and officers to assist federal immigration officers in enforcing immigration laws, and HB 497 does just what Congress intended. The plaintiffs will then be able to reply to any arguments made by the defendants by June 22, 2011.
The current restraining order is merely temporary. Although the timetable is uncertain, Judge Waddoups will next issue a more thorough opinion, analyzing the merits of the plaintiffs’ case and will then decide whether to issue a preliminary injunction. If Judge Waddoups does not issue a preliminary injunction, it is likely that he will find the HB 497 a valid state statute.
Pro-amnesty lawmakers reintroduced the DREAM Act in both the House and Senate last Wednesday. (ABC News Tucson, May 11, 2011) Like their predecessors, S. 952 and H.R. 1842 grant amnesty to the roughly two million illegal aliens who entered the country and meet certain educational or military requirements, authorize in-state tuition to illegal aliens, and provide illegal aliens access to federal financial aid for colleges and universities.
The Senate version of the DREAM Act grants amnesty by initially conferring a six-year conditional legal permanent residency (green card status) upon an illegal alien if he/she meets the following requirements (§§ 3-4):
- Has been in the U.S. more than five years prior to the date of enactment (§3(b)(1)(A));
- Was 15 years old or younger when they entered the U.S. (§3(b)(1)(B));
- Has been a person of good moral character since the date of entry into the U.S. (§3(b)(1)(C));
- Has not been convicted of a felony, imprisoned for an aggregate of 90-days, and is not otherwise inadmissible under certain provisions of the Immigration and Nationality Act (§3(b)(1)(D));
- Has been admitted to an institution of higher education OR obtained a high school diploma or general education development certificate (GED) (§3(b)(1)(E)); and
- Is 35 years old or younger on the date of enactment (§3(b)(1)(F)).
To have the conditional status removed and become a legal permanent resident, the alien must also complete at least two years at an institute of higher education in the U.S. or serve in the military for at least two years. (§5) In addition, the Senate bill provides that Homeland Security may not remove aliens who have a pending application under the bill and appear to meet its requirements, and shall stay the removal proceedings for aliens who meet the above listed requirements (except for admission to an institution of higher learning or attainment of a high school diploma or GED), are at least five years-old, and are enrolled in a primary or secondary school. (§3(e))
Although sponsors of the bill such as Senator Robert Menendez (D-NJ) claim the DREAM Act is “not an open-door or free-ride,” the eligibility criteria set forth in the legislation are not as difficult to meet as its proponents claim. (Las Vegas Review-Journal, May, 11 2011) Since the illegal alien beneficiaries under the bill are in the U.S. illegally or “undocumented,” there is no way to prove how long they have actually been in the country or how old they were upon entry. Furthermore, an illegal alien never has to actually complete a higher educational degree, but rather only two years at an “institute of higher education,” which includes community college and vocational schools. (See FAIR Website on DREAM Act, May 13, 2011; see also Ten Things You Need to Know About the DREAM Act) These requirements may be waived or extended by the Secretary of Homeland Security. (§§ 3(b)(2), 5(a))
Senate Democrats have already suggested they will use E-Verify, the federal online employment eligibility verification program, as a bargaining chip in getting the DREAM Act passed. Majority Leader Senator Harry Reid (D-NV) commented, “Maybe that would be an opportunity to do something on this.” (CQ Today, May 11, 2011) House Judiciary Chairman Representative Lamar Smith (R-TX), however, continues to stand firm in opposition to the amnesty legislation: “It is pointless to talk about any new immigration proposal that grants amnesty since the border is not secure and our immigration laws are not fully enforced,” he said. (Id.)
The DREAM Act failed last legislative session when the Senate voted down the House version of the bill, H.R.5281. (See Roll Call Vote 278; See also FAIR’s Legislative Update Dec. 20, 2010) Stay tuned to FAIR for continuing updates on the DREAM Act….