Legislative Update: 10/12/2016
Report: DHS Catches Barely Half of Illegal Border Crossers
Federal immigration authorities caught barely half of the people who illegally entered the United States from Mexico last year, according to an internal Department of Homeland Security (DHS) report leaked by a government official involved in border issues. (Associated Press, Oct. 7, 2016) The report found that only 54 percent of people who crossed the southern border illegally in Fiscal Year 2015 were caught. (Id.) This new figure significantly undercuts the agency’s publicly available data, which shows that 81 percent of those who cross the southern border illegally are caught. (Daily Caller, Oct. 7, 2016) The lower number is the result of utilizing a more sound methodology, as the study’s authors did not include people who turned themselves in and then immediately applied for asylum. (LifeZette, Oct. 10, 2016) That number was 140,000 last year, up from 20,000 a decade ago. (Id.) For years, DHS has publicly touted these instances as illegal immigration stops in order to make the border appear more secure than it actually is. (Id.) In addition, the report does not include “touch-backs”, or people who cross the border, but turn around as soon as they see Border Patrol officers. (Id.)
The 98-page report was completed in May, and DHS officials have declined to release it, despite urging from federal lawmakers. (Associated Press, Oct. 7, 2016) In fact, a source at DHS told Fox News last month that the report hasn’t been released to Congress or the public because “it would ‘look bad’ and ‘help elect Donald Trump.’” (Fox News, Sept. 15, 2016; ImmigrationReform.com, Sept. 16, 2016) DHS continues to deny allegations that it is withholding the damning report for political reasons. (Associated Press, Oct. 7, 2016) Instead, the agency claims that that the report simply isn’t ready – despite its completion nearly six months ago. (Id.) “DHS does not believe it is in the public interest to release, and it would be irresponsible to make policy or other judgments on the basis of analysis that is incomplete and remains a work in progress,” spokeswoman Marsha Catron said. (Id.)
While the new report may appear to paint an accurate picture of the situation at the border, the union representing Border Patrol officers says it does not. (LifeZette, Oct. 10, 2016) According to Brandon Judd, president of the National Border Patrol Council, the report counts as successful stops thousands of people who are briefly detained by immigration authorities but then released due to Obama administration policies. (Id.) “We’ve refuted those numbers forever,” Judd said. “Being an agent myself, I know those numbers just aren’t true … It’s just disappointing that they’ve been lying to the American people for so long.” (Id.) For instance, a November 2014 DHS policy memo requires Border Patrol officers to release anyone apprehended at the border who says he or she was in the United States prior to January 2014, meaning that they immediately cease to be a “priority” for immigration enforcement. (Id.; see FAIR Legislative Update, Nov. 24, 2014) Further, many illegal aliens are apprehended at the border and subsequently released with notices to appear for a hearing before an immigration judge. (LifeZette, Oct. 10, 2016) These documents are known as “notices to appear,” but illegal aliens refer to them as “permisos,” or free passes, because they give permission to stay in the country while they await their appearance in already backlogged immigration courts. (FAIR Legislative Update, Oct. 27, 2015) It is estimated that as many as 80 percent fail to appear in court and effectively disappear into the country. (Id.) Considering these factors, Judd believes the share of illegal aliens who make it into the United States is probably closer to 75 percent. (LifeZette, Oct. 10, 2016)
DHS #2 Mayorkas Resigns Under Cloud of Ethical Violations
Deputy Secretary of Homeland Security (DHS) Alejandro Mayorkas resigned from the number two position at DHS effective October 28. (The Daily Caller, Oct. 5, 2016) His resignation follows a Freedom of Information Act (FOIA) request by FAIR’s legal arm, The Immigration Reform Law Institute (IRLI), which showed that neither DHS nor the Office of Government Ethics (OGE) investigated major ethics violations relating to Mayorkas’s actions when he was the director of U.S. Citizenship and Immigration Services (USCIS). (See OGE FOIA Response, Sept. 28, 2016, The Daily Caller, Oct. 3, 2016) While he was the USCIS Director, he used his position to fast-track visas for several companies, including GreenTech Automotive, a company run by Democratic presidential nominee Hillary Clinton’s brother, Tony Rodham, and now-Virginia Governor Terry McAuliffe. (See The Daily Caller, Oct. 3, 2016; FAIR Legislative Update, Dec. 18, 2013) Despite being under investigation for wrongdoing, the Democratic-controlled Senate confirmed Mayorkas in December 2013 after then-Senate Majority Leader Harry Reid (D-NV) invoked the “nuclear option” to reduce the threshold for confirmation from 60 votes to a simple majority. (FAIR Legislative Update, Dec. 23, 2013)
In March 2015, the DHS Inspector General issued a report finding that in fact Mayorkas improperly influenced the approval of EB-5 visas as USCIS Director. Yet, despite the confirmation of wrongdoing and federal regulations that require DHS to report and OGE to investigate, neither agency took any action. (See FAIR Legislative Update, Mar. 31, 2015, The Daily Caller, Oct. 3, 2016) The Code of Federal Regulations governing agency investigations says that the OGE Director may recommend an agency head investigate whether an employee is violating or has violated any ethics provision. The OGE Director may also recommend the head of an agency investigate to determine whether a violation is occurring or occurred. Additionally, the CFR instructs the Director, where warranted, to take appropriate disciplinary or corrective action. If the matter already has been investigated or if the facts are fully known to the agency, and, in the opinion of the agency head require no further investigation, the head of the agency shall notify the Director of that determination and shall promptly file the agency report. (See Code of Federal Regulations § 2638.503) As a result of the IG’s report, the OGE should have launched an investigation into Mayorkas. At a minimum, the Secretary of DHS should have filed a report explaining why it declined to investigate the matter.
The IG investigation into Mayorkas began in 2012 following allegations of impropriety by at least 15 career USCIS employee whistleblowers regarding his personal involvement in certain EB-5 visa applications, including GreenTech. (See FAIR Legislative Update, Mar. 31, 2015; DHS Inspector General Report, Mar. 24, 2015 at 1-2) The EB-5 visa program grants foreign investors a green card if they invest between $500,000 and $1 million into a new business that creates a certain number of jobs for U.S. workers. (INA § 203(b)(5); INA § 216A) IG John Roth noted that the whistleblowers’ “allegations were unequivocal: Mr. Mayorkas gave special access and treatment to certain individuals and parties.” (IG Report at 3) “They told us he created special processes and revised existing policies in the EB-5 program to accommodate specific parties.” (Id.)
In the GreenTech case, Mayorkas’s actions were highly unusual. Initially, GreenTech’s petition was denied and they appealed to the USCIS Administrative Appeals Office (AAO) for reconsideration. The IG report found that prior to AAO issuing its final decision, Mayorkas intervened and told his staff that he wanted to review the decision before it was issued. (DHS Inspector General Report, Mar. 24, 2015 at 44) Many of the EB-5 officials who spoke with the IG said they found this “level of scrutiny unsettling” because past USCIS Directors had typically not scrutinized individual decisions. (Id.) At a meeting with his staff on GreenTech, Mayorkas said that he would take the AAO decision and rewrite it because “he felt bad about asking the AAO to do more work.” (DHS Inspector General Report, Mar. 24, 2015 at 47) The career staff involved in the adjudication process told the IG that they believe the request was improper. One official said that it made it appear that Mayorkas was “dictating results.” (Id.)
As he did after the IG report was released, DHS Secretary Jeh Johnson continues to praise Mayorkas. Johnson said, “On behalf of the entire Department, I thank and salute Ali for his great leadership.” (The Daily Caller, Oct. 5, 2016)
Update: USCIS has terminated an EB-5 regional center run by Clinton’s brother, known as the Virginia Center For Foreign Investment and Job Creation. According to the Virginia Business publication, this regional center has close ties to GreenTech. (Law360, Oct. 11, 2016)
Supreme Court Denies Rehearing of Executive Amnesty Case
The losing streak for the Obama administration in U.S. v. Texas, the 26 state lawsuit challenging two major executive amnesty programs, continues after the U.S. Supreme Court refused to rehear the case. (Fox News Latino, Oct. 3, 2016) In June, the Supreme Court split 4-4 in the case, which meant the lower court’s injunction blocking the implementation of Deferred Action for Parents of Americans (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA) stayed in place while the case returns to Judge Hanen to be litigated on the merits. (FAIR Legislative Update, June 28, 2016)
Because a tie at the Supreme Court does not establish a legal precedent, the Obama administration requested that the high court rehear the case rather than returning to Judge Hanen’s courtroom. “The validity of the [immigration policy] is unlikely to arise in any future case,” wrote Acting U.S. Solicitor General Ian Gershengorn in his petition for rehearing to the Supreme Court. (See Fox News Latino, Oct. 3, 2016) “This court instead should be the final arbiter of these matters through a definitive ruling.” (Id.) However, the Supreme Court was not persuaded, a decision that is unsurprising given that the case has yet to be litigated on the merits. Notably, the high court’s refusal to rehear the appeal of the injunction now marks the sixth time the Obama administration has lost in court defending DAPA and expanded DACA: twice before Judge Hanen; twice before the Fifth Circuit; and now twice before the Supreme Court. (Id.)
To learn more about U.S. v. Texas and keep track of the case as litigation continues, click here.
Judge Halts Detainers in Six States
In a recent case of judicial overreach, U.S. District Judge John Z. Lee ruled that Immigration and Customs Enforcement (ICE) must stop issuing detainers in Illinois, Indiana, Kansas, Kentucky, Missouri, and Wisconsin without first obtaining a judicial warrant. (The Chicago Reporter, Oct. 3, 2016) In his ruling, Judge Lee concluded that ICE went beyond the statute because ICE would have “plenty of time to obtain a warrant while the subject is in the local law enforcement’s custody.” (See Judge John Z. Lee’s Opinion, Sept. 30, 2016) Furthermore, he concluded that there is not a “reason to believe” all aliens are “likely to escape” and the more individualized determination is required. (Id.) If implemented, this order would void thousands of requests to local law enforcement to detain individuals for an additional 48 hours prior to their release to give ICE time to pick them up. (Id.)
Detainers are necessary for effective interior enforcement because ICE does not have the time or resources needed to be in every jurisdiction to pick up every individual it suspect is in the country illegally. Outrageously, Judge Lee’s ruling completely disregards the clear language of the Immigration and Nationality Act. According to federal law, ICE can detain individuals without obtaining a warrant for arrest if it believes that the individual is likely to escape before the warrant can be issued. (8 USC §1357(a)(2)) Practically speaking, detainers are an essential tool ICE uses to ensure that aliens who are serving prison sentences for serious crimes are deported upon completion of their prison terms and do not disappear into the interior of the United States. (See Transactional Records Access Clearinghouse)
Even though the Obama administration has dramatically reduced detainer requests—down from nearly 30,000 a month to fewer than 10,000—it is fighting the ruling. (See Transactional Records Access Clearinghouse) When the government filed its motion to extend time to file its stay pending a possible appeal of this case, it argued, “The court’s ruling interprets a federal statute in a manner that impacts nationwide operations of the nation’s immigration law enforcement agency, and indeed, will nullify a significant number of existing immigration detainers.” (See Department of Justice’s Motion, Oct. 4, 2016) The government further believes that ICE’s ability to detain criminal aliens would be irreparably harmed if this decision stands. (Id.)
To learn more about the dangerous implications of Judge Lee’s decision, please listen to FAIR’s podcast. (Detainers Under Attack And Why You Need To Care, Oct. 7, 2016)
Refugee Admissions Drastically Rise Despite Public Will
The United States Department of State released final statistics late last month on the number of refugees resettled into the country in Fiscal Year (FY) 2016. (Refugee Processing Center, Sept. 30, 2016) The Obama administration drastically increased admissions despite waning public confidence in the government’s ability to properly screen applicants for security threats. The data show nearly a 30 percent increase in admissions since FY 2015. (Id.)
The Department reported that the United States received a total of 84,995 in FY 2016. (Id.) Significantly, the Obama administration surpassed its goal of resettling 10,000 Syrian refugees this year by resettling an additional 2,587 into the United States, for a total of 12,587 Syrians refugees. (Id.) California, Texas, and New York received the largest numbers of refugees: 7,916 refugees; 7,803 refugees; and 5,031 refugees, respectively. (Id.) California, Michigan, and Texas also became homes to the largest number of Syrian refugees, with 1,454 Syrians; 1,374 Syrians; and 912 Syrians, respectively. (Id.)
Admissions numbers show no sign of slowing down in FY 2017. Since October 1, the first day of the new fiscal year, the Obama administration resettled an average of 411 refugees each day. (Breitbart, Oct. 6, 2016) By comparison, during the first five days of FY 2016, only 65 refugees were resettled. (Id.) At this rate, the United States could resettle more than 150,000 refugees by the end of FY 2017. (Id.) Indeed, the Obama administration announced its intention last month to continue increasing refugee admissions in the upcoming year by another 30 percent compared to FY 2016, which would mark a 57 percent increase since FY 2015. (FAIR Legislative Update, Sept. 20, 2016)