FAIR Legislative Update September 6, 2011

President Obama’s Uncle Detained as Illegal Alien

President Obama’s uncle, Onyango Obama, was detained by Immigration and Customs Enforcement in late August for illegally being in the United States.  The incident began when local police arrested Onyango Obama for running through a stop sign in a town west of Boston.   (MSNBC, August 29, 2011)  After nearly colliding with a police cruiser, police determined Obama’s blood alcohol level to be nearly twice of that of the legal limit.  (Boston Globe, August 31, 2011)  They charged Onyango Obama with driving under the influence of alcohol and driving to endanger, and also cited him with failure to use a turn signal.  (The Washington Times, August 28, 2011) 

After pleading not guilty to the driving charges, Onyango Obama continued to be held without bail under an immigration detainer issued by ICE.  (The Australian, August 29, 2011)  Obama, who is from Kenya and is the half-brother of the President’s father, was originally ordered deported in 1992.  After he failed to leave the country, ICE issued an outstanding warrant for his arrest.  This warrant was discovered while Framingham, Massachusetts, police officers were processing him for the driving charges.

Since his arrest, Obama has retained immigration lawyer Margaret Wong to handle his immigration case.  Margaret Wong became especially well-known last year, when she handled the immigration charges facing Zeituni Onyango’s sister and the President’s aunt.   (Boston Herald, August 29, 2011)  Zeituni came to the U.S. from Kenya in 2000 and was denied asylum in 2004.  However, even though Zeituni remained in the country illegally, Wong was able to convince an immigration judge to grant her asylum allowing her to remain in the U.S.

The arrest of “Uncle Omar,” as he was referred to in the President’s memoirs, comes at a time when the Administration seems more intent than ever to circumvent Congress and administratively grant amnesty to as many illegal aliens as possible.  On August 18^th, while Congress was in recess, Homeland Secretary Janet Napolitano announced the initiation of an “interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute [Department of Homeland Security’s] highest priorities.”  (Letter to Senator Reid, August 18, 2011)  Under this policy, more than 300,000 immigration cases are going to be reviewed individually to ensure that all resources are used on highest-priority cases, namely those involving criminal aliens.  (Id.) 

Finally responding to the arrest of the President’s uncle as an illegal alien, White House Press Secretary Jay Carney stated that the president expected all laws to be enforced in his uncle’s case. “We expect it to be treated … like any other immigration case,’’ he stated.  (Boston Globe, Sept. 2, 2011)  It is unclear, however, whether this means the White House intends for ICE to show leniency towards the President’s uncle.  ICE may not consider Onyango Obama a “high priority” for removal under its new removal policy as the first two instances of drunk driving in Massachusetts are only considered misdemeanors; Onyango has resided in the U.S. for many years; and Onyanga has strong family ties to the country. 

IRS Paid Illegal Aliens $4.2 Billion in Refundable Tax Credits in 2010

A government report released last Thursday revealed that the IRS paid illegal aliens $4.2 billion in refundable tax credits in 2010. (TIGTA Report 2011-41-061, July 7, 2011) The report, authored by the Treasury Inspector General for Tax Administration (TIGTA), states that the payments came in the form of the Additional Child Tax Credit (ACTC), a refundable credit that allows individuals to reduce their federal income tax by up to $1,000 for each child under the age of 17 who meet certain criteria. (See IRS Website, last updated Feb. 10, 2011)

Although illegal aliens are unauthorized to work in the U.S., they are, like every other individual in the U.S., required to comply with federal tax laws. Because illegal aliens are ineligible to receive a Social Security Number, the IRS provides illegal aliens with Individual Taxpayer Identification Numbers (ITINs), which allow them to file tax returns with the federal government. (TIGTA Report 2011-41-061, July 7, 2011) The Treasury report explains that an increasing number of aliens who file with ITINs are claiming the ACTC, resulting in a massive increase in government payouts to illegal aliens. In fact, over the past five years, IRS payouts for the ACTC have increased from $924 million to $4.2 billion. (TIGTA Report 2011-41-061, July 7, 2011)

The report also candidly acknowledges that the IRS’ continual payout of ACTC tax benefits only encourages more illegal immigration: “The payment of Federal funds through this tax benefit appears to provide an additional incentive for aliens to enter, reside, and work in the United States without authorization, which contradicts Federal law and policy to remove such incentives.” (Id.)  Nevertheless, the IRS says that it has refunded these massive sums of money to illegal aliens because current tax code does not require individuals to have a Social Security Number to get the additional child tax credit.  Commenting on the TIGTA Report, IRS Commissioner of the Wage and Investment Division Richard Byrd Jr. asserted, “The IRS is administering the law accordingly. Legislative changes would be required to deny many of the claims discussed in the report.” (Wall Street Journal, Sept. 2, 2011)

To cure the situation, the Treasury Inspector General makes several recommendations. These include some of the following:

• The IRS and Treasury Department should work together to clarify whether refundable tax credits (or the refundable portions of tax credits such as the ACTC) may be paid to illegal aliens.
•  The IRS should require individuals filing with ITINs and claiming the ACTC to provide specific verifiable documentation to support that their dependents meet the qualifications for the credit, including residency.
• The IRS should verify Child Tax Credit and ACTC claims on ITIN returns with questionable wages and withholdings.
• The IRS should alert taxpayers when it becomes aware that their identity has potentially been stolen. At a minimum, the IRS should notify taxpayers whose names and Social Security Numbers have both been compromised.

In its report, the Inspector General specifically noted that the IRS ignored similar recommendations it made in 2009 and urges that action be taken.  (Id.; see also TIGTA Report 2009-40-057, Mar. 31, 2009)  “Clarification is needed on this issue,” said J. Russell George, Treasury Inspector General for Tax Administration. (TIGTA Press Release, Sept. 1, 2011) “The Internal Revenue Service should work with the Department of the Treasury to clarify whether this credit, which is based on earned income, should be paid to those who are not authorized to work in the United States.” (Id.)

California DREAM Act on Path to Gov. Brown’s Desk

On a party line vote, the California Senate last Wednesday approved the second part of the California DREAM Act, Assembly Bill 131.  (Reuters, Aug. 31, 2011) AB 131 would make illegal aliens in California eligible for state funded student financial aid programs. (AB 131 at § 4(b)) The bill also provides that once legal California residents receive grants, illegal aliens would also be eligible for Cal Grant A and B Awards. (Id. at § 4(c)). 

According to the California Senate Appropriations Committee, AB 131 will cost the State $40 million annually. (LA Times, Aug. 26, 2011) These costs include $13 million for Cal Grants, up to $15 million for community college fee waivers, and up to $12 million in institutional aid for the University of California and California State University systems. (Id.) These costs come in addition to the estimated $87.9 million Californians already give illegal aliens in the form of in-state tuition. (See FAIR’s Cost Study, Table 9, July 2010)

AB 131 now heads back to the California Assembly, where lawmakers must pass the Senate’s version of the bill. (Reuters, Aug. 31, 2011; see AB 131 bill status)  If the California Assembly passes the bill, it will then travel to the desk of Governor Jerry Brown, who has said he is “favorably inclined” to sign the measure into law. (People’s World, July 26, 2011)   Just last month, Gov. Brown signed AB 131’s companion bill, AB 130, which for the first time gives illegal aliens access to $88 million in private scholarships and grants. (LA Times, Aug. 26, 2011; see FAIR’s Legislative Update, July 25, 2011)

Federal Judge Temporarily Enjoins Alabama Law

Last Monday, U.S. District Court Judge Sharon L. Blackburn temporarily enjoined Alabama’s tough new immigration law (HB 56), stating she needs additional time to consider the merits of the case before issuing a final ruling. (CNN, Aug. 29, 2011; see FAIR’s Legislative Update, Aug. 8, 2011) The Justice Department sued the State of Alabama to overturn the law, complaining the federal government has “preeminent authority” over immigration and that federal law does not permit a “patchwork of state and local immigration policies.”

Judge Blackburn’s temporary injunction reads:

                The court having discussed with counsel its concerns regarding the limited time available to adequately address the numerous challenges to Act 2011-535 [H.B. 56] by the effective date, it is hereby ORDERED that Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed and enforced.  In entering this order the court specifically notes that it is in no way addressing the merits of the motions.

(See Aug. 29, 2011 Order, Case 5:11-cv-02484-SLB) The law—which covers a wide array of immigration matters including employment, voting, education, and enforcement—was scheduled to take effect Sept. 1. (See FAIR’s Legislative Update, June 6, 2011) The temporary injunction is now in effect until Sept. 29, 2011, or until such time as the judge enters a ruling in the case, whichever comes first.  Stay tuned to FAIR for developments in the case…

New Mexico Governor Continues Fight against Illegal Immigration

On Thursday, District Court Judge Sarah Singleton issued a temporary restraining order on New Mexico’s residency certification program in response to a lawsuit brought by the Mexican American Legal and Educational Defense Fund (MALDEF).  (CNN, Sept. 6, 2011) The residency program directed state officials to re-verify the physical residency of foreign nationals who hold driver’s licenses in the state and was Governor Susana Martinez’s latest attempt at discouraging illegal immigration into her state.  (Reuters, Sept. 1, 2011) 

Governor Martinez has consistently been outspoken about her intent to combat the problem of illegal immigration in New Mexico.  (See FAIR Legislative Update, March 14, 2011)  To combat the fraud in which illegal aliens travel to New Mexico simply to get a driver’s license, Martinez’s new policy would require those who want to keep or renew their driver’s license to confirm their residency within the state.  Earlier during the legislative session, New Mexican legislators shot down a bill which would have banned the state from issuing drivers licenses to illegal aliens.  (Reuters, March 10, 2011)  New Mexico is one of three states, in addition to Washington and Utah, that continues to issue drivers licenses to illegal aliens.  (Id.) 

State officials stated that a temporary injunction is a standard procedure while the court takes the time to examine the current residency requirements for obtaining a driver’s license in New Mexico.  (Reuters, Sept. 1, 2011) Meanwhile, Governor Martinez says she will continue to fight to secure her state against illegal immigration.  A spokesman reiterated to the press that “in the absence of the legislature acting to put an end to the program that provides driver’s licenses to illegal immigrants, the governor has the responsibility to identify and attempt to curb the dangerous fraud and identity theft that is inherent in it.”  (Id.)  A hearing on September 13 will determine whether Judge Singleton’s restraining order will become permanent, even as a special legislative session convenes in New Mexico this Tuesday.  The agenda for the legislators includes a re-visitation of the Governor’s push to prevent aliens who don’t have a social security number from obtaining a New Mexican driver’s license.  (CNN, Sept. 6, 2011)