FAIR Legislative Update October 31, 2011
While Homeland Security Secretary Janet Napolitano touts the U.S. border as being more secure than ever, the Department is quietly ordering Customs and Border Protection (CBP) to scale back border inspections. In a news report out of Texas last week, current and former CBP agents are saying the standard daily presence and routine checks normally conducted by CBP officers at transportation hubs are a thing of the past. (KRGV, Oct. 25, 2011) According to the Associated Press, field offices nationwide began receiving secret orders to scale back the inspections soon after Secretary Napolitano announced the administration would begin to grant administrative amnesty to illegal aliens in deportation proceedings. (Associated Press, Oct. 29, 2011)
The routine bus, train, and airport checks typically involve agents manning transportation hubs within 100 miles of the border (often the northern border) and questioning individuals when warranted. Border agents now report that instead of conducting random checks, or checks based on suspicious behavior, agents have been ordered to only conduct checks based on actual intelligence indicating a threat. (Id.) One agent told the Associated Press that “instead of checking buses or trains, agents have spent shifts sitting in their vehicles gazing out at Lake Erie and Lake Ontario, where few illegal immigrants cross.” (Id.)
The elimination of inspections was immediately apparent to individuals at the border. One manager of a Greyhound Bus Station in New York reported that Border Patrol Agents halted inspections on September 12—the day after the 10th anniversary of September 11. (Id.) Travelers arriving at a McAllen, Texas bus station last week also immediately noticed the absence of CBP officers checking persons and items entering the United States. (KRGV, Oct. 25, 2011) Although the CBP office in McAllen refused at that time to comment on new policy due to its sensitive nature, Chairman of the National Association of Former Border Patrol Officers, Kent Lundgren, learned about order from current and former agents in the field. If Washington is refusing to admit a change in policy, Lundgren said, “Let’s just say they’re being less than candid because it is.” (Id.)
Despite reports coming from agents all over the country, Customs and Border Protection officials in Washington, DC, still refuse to acknowledge a shift in policy. “We are refining the way we operate by managing risk,” said CBP Spokesman Bill Brooks. (Id.) Brooks insisted that local commanders still have the authority to aggressively pursue illegal aliens near the border and at transportation hubs. (Associated Press, Oct. 29, 2011)
Border agents, however, are “baffled” at the order to scale back transportation checks and the union representing Border Patrol Agents issued a press release slamming the move. (Id.) In it, National Border Patrol Council Vice President Shawn Moran sharply states: “Border Patrol managers are increasing the layers of bureaucracy and making it as difficult as possible for Border Patrol agents to conduct their core duties…The only risks being managed by this move are too many apprehensions, negative media attention and complaints generated by immigrant rights groups.” (Id.)
Meanwhile, the ACLU hailed Homeland Security’s order to scale back border inspections. ACLU spokesman Doug Honig said, “If the Border Patrol is indeed not boarding buses and trains and engaging in the random questioning of people, that’s a step in the right direction.”
Members of the House Judiciary Committee took Homeland Security (DHS) Secretary Janet Napolitano to task Wednesday for the government’s failure to enforce U.S. immigration law. (See Napolitano’s Written Testimony, Oct. 26, 2011) The questions shed light on a number of issues plaguing the Department, including its newly launched administrative amnesty program, the release of criminal aliens onto city streets, the postponement of implementation of the REAL ID Act, and the federal government’s payout of billions of taxpayer dollars to illegal aliens in refundable tax credits.
Perhaps the most hotly contested subject of the hearing was the Morton memos. Judiciary Chairman Lamar Smith (R-TX) criticized ICE’s new policy of deliberately releasing criminal aliens because the agency does not consider their crimes serious enough. When he asked Secretary Napolitano if she knew the specific crimes committed by aliens ICE is now releasing, she conceded she neither knows nor is familiar with how such statistics are tracked. Chairman Smith also complained that DHS had not been forthcoming on his request for a list of names of criminals the Department refuses to detain. Having asked for such information already in August, he claimed DHS has not provided it to him as promised. “Well, let me say to you that it’s been two months since I requested this information…I was told that the list was available, had to be cleared. And now suddenly, the list has apparently disappeared. And if I am not given that list as I understood to be promised that list, I’ll have no choice but to issue a subpoena,” he declared to the Secretary.
Calling them “a roadmap for retaining illegal immigrants,” Rep. Tim Griffin (R-AR) also pressed Secretary Napolitano on the memos, suggesting DHS designed them to serve as a backdoor amnesty policy rather than mere prosecutorial discretion guidelines. “Are you familiar with memos [from other agencies] this extensive that lay out with this specificity what prosecutorial discretion is, because I’ve never seen such detail and I’d be interested to hear your view on that.” Napolitano merely responded that the Department of Justice has a “thick” U.S. Attorney’s manual, which serves as a guide for the exercise of prosecutorial discretion.
Rep. Randy Forbes (R-VA) argued that the Morton memos are discriminatory, stating he knew of no other situations where prosecutors would decline to enforce the law against violators merely because their spouse was pregnant or because they were pursuing an education. “[A]re you telling me,” he asked Napolitano, “that if you have an employer that you want to go after, that you think a prosecutor should be able to prosecute those individuals who are unmarried or perhaps do not have spouses that are pregnant more than those who have a pregnant spouse?” he inquired. Napolitano refused to answer the question, stating that she couldn’t answer the question as he phrased it. Forbes then requested a written list of instances in which other agencies used same criteria in the Morton memos as guidelines for prosecutorial discretion.
House Judiciary members also asked tough questions on other immigration-related topics. Rep. Jim Sensenbrenner (R-WI), chief sponsor of the 2005 REAL ID Act, asked Napolitano if the Department would continue to delay its implementation and if it would enforce the requirements of the Act against states who fail to comply. Calling the Act an “unfunded mandate,” Secretary Napolitano, replied she would not “speculate on things that could happen in over a year from now,” but would work to bring the states into compliance if she could.
Immigration Policy and Enforcement Subcommittee Chairman, Elton Gallegly (R-CA), inquired about a recent Treasury Department report indicating that in 2010, the federal government paid unauthorized workers $4.2 billion in refundable tax credits. (TIGTA Report 2011-41-061, July 7, 2011; see FAIR Legislative Update, Sept. 6, 2011) Specifically, Rep. Gallegly wanted to know how many of those receiving the refund also had a criminal record. Napolitano, again unable to answer the question, requested a copy of the Treasury Department report and told Rep. Gallegly she’d be able to get him “something” at a future date.
Secretary Napolitano testified before the Senate Judiciary Committee the previous week, where she also defended the Administration’s lack of enforcement efforts. (See FAIR Legislative Update, Oct. 24, 2011)
Earlier this month, Sen. Chuck Schumer (D-NY) and Sen. Mike Lee (R-UT) introduced S. 1746, a bill that would make it easier for foreign nationals to enter and stay in the United States. Among other things, S. 1746 proposes several changes to the B-visa (visitor visa) program as well as the visa waiver program. Visitor visas include B-1s (temporary business travelers) and B-2s (tourists). (See INA § 101(a)(15)(B)) In general, foreign nationals do not need to obtain a B visa if they are from a visa waiver program country.
In addition, Section 8 of S. 1746 proposes creating a new non-immigrant visa for foreigners who spend at least $500,000 in cash to purchase one or more residences in the United States. While remaining in the U.S., the visa recipient must maintain ownership of residential property worth at least $500,000 and reside for more than 180 days per year in a U.S. residence that is worth at least $250,000. The visa grants authorization to visit the U.S. for a three-year period and may be renewed every three years under the same conditions. The ability to buy one’s way into the country provided for in Section 8 is similar in principle to the EB-5 employer immigrant visa program, which grants a green card to aliens who invest a minimum of $500,000 in a new commercial enterprise that creates or preserves at least 10 jobs.
Other significant provisions of the bill include:
- Visitor visas (B visas) for Chinese nationals that are valid for a minimum of five years and permit unlimited entry and exit to and from the U.S. (§ 2);
- The creation of a new “W” visa for Canadian citizens over 50 years old who own or lease property in the U.S., permitting them to visit the U.S. during a three-year period and stay in the U.S. for up to 240 consecutive days at a time (the visa may be renewed every three years and does not permit work authorization) (§ 5);
- Requirement that the Secretary of State decrease the application and issuance fees charged to visitor visa seekers during “low peak” seasons when demand for such visas are lower (§ 6); and
- Alteration of the qualifications for designation as a visa waiver program country by alternatively permitting countries who have a three percent visa overstay rate or lower for the previous fiscal year to qualify (§ 7).
Many of these provisions are problematic. For example, by extending visitor visas for Chinese nationals to five years, the bill appears to develop a de facto guest worker program benefitting the nationals of one country. Several bills that seek to expand guest worker programs remain stalled in both Chambers; increasing visitor visa periods for Chinese nationals may serve as a hidden vehicle for importing more foreign labor. While Chinese visitors who come on B visas will generally not have work authorization, their ability to stay for years under this bill would easily give them sufficient time to obtain guest worker visas under which they could work. Increasing the visitor visa period also encourages Chinese nationals to build roots in the United States, laying the foundation for these “visitors,” and the open borders groups that support them, to eventually demand legal permanent resident status.
With respect to the Visa Waiver Program, allowing countries who have a three percent visa overstay rate or lower to participate in the program would virtually permit every nation in the world to become a Visa Waiver country. Currently, the federal government does not have a reliable system for tracking individuals when they leave the country. Until the biometric exit portion of US-VISIT is implemented, there is no reliable way to determine the number of visa overstayers from each country, thus allowing any of them to claim that their visa overstay number is lower than the three percent threshold to qualify.
Despite the broad scope of this immigration bill, its authors are promoting it as a way to jump-start the U.S. housing market. “Our housing market will never begin a true recovery as long as our housing stock so greatly exceeds demand. This is not a cure-all, but it could be part of the solution,” Sen. Schumer said of his bill. (BBC, Oct. 21, 2011) Similarly, Sen. Lee described the bill as a “free market method for increasing demand for housing.” (Id.) The bill has been referred to the Senate Judiciary Committee, but no hearing has been scheduled yet.
The Schumer-Lee bill has been endorsed by the U.S. Chamber of Commerce, the U.S. Travel Association, the American Hotel & Lodging Association, and the U.S. Olympic Committee. (Sen. Chuck Schumer Press Release, Oct. 20, 2011)
Sonoma County, California became the latest county in the nation to extend an invitation to illegal aliens last week by announcing that ID cards issued by the Mexican consulate can be used as valid identification within the county. (NBC Bay Area, Oct. 24, 2011) “Today is a great day,” Sonoma County Assistant Sheriff Lorenzo Dueñas said. “We’re now going to accept the matricular consular ID.” (Id.)
The proponents of this move argue that it keeps illegal aliens from being deported through Secure Communities and will free up time and resources that local law enforcement has spent on immigration enforcement. (Id.) These proponents complain that many of the illegal aliens in the county turned over to Immigration and Customs Enforcement (ICE) through Secure Communities were not actually convicted of the crime for which they were arrested, or that they were convicted of only “minor crimes.” In other words, they were simply illegal aliens. (Santa Rosa Press Democrat, Oct. 24, 2011) By making the Mexican consular ID card an acceptable form of identification in Sonoma County, immigration advocates hope to help illegal aliens who get pulled over and need ID, but do not have any other criminal history. (Santa Rosa Press Democrat, Oct. 24, 2011)
Although Mexican nationals will still need to apply to their consulate to obtain this ID, the Mexican government hopes to set up a satellite office in the area to instruct individuals on the application process and issue cards for them. (Id.)
The House Judiciary Committee passed H.R. 3012 last Thursday by voice vote. The bill, authored by Rep. Jason Chaffetz (R-UT) and entitled the “Fairness for High-Skilled Immigrants Act”, would eliminate the per-country cap on employment-based green cards and would also increase the per-country cap on family-based green cards from 7 percent to 15 percent. (See FAIR Legislative Update, Oct. 17, 2011 for a more detailed analysis) H.R. 3012 is now expected to be sent to the floor for a vote by the full House of Representatives.