Legislative Update: 10/2/2013
GOP Leaders Plan Immigration Push after Debt Ceiling Debate
While the rest of the country is fixated on Congressional budget battles, House Republican leaders continue to negotiate immigration legislation behind the scenes, preparing for what appears to be an amnesty debate in the House as soon as late October. (Fox News Latino, Sept. 30, 2013)
Only days ago, Rep. Mike McCaul (R-TX), Chairman of the House Homeland Security Committee and author of H.R. 1417, the “Border Security Results Act,” expressed confidence immigration will soon be on the House agenda. “I would think that [immigration] would be the next agenda item in the queue after we’re done with this mess,” Rep. Michael McCaul (R-TX) told reporters this past week, referring to clashes over government funding and the pending debt ceiling debate. (Id.)
Likewise, House Judiciary Chairman Bob Goodlatte (R-VA), recently said he anticipates swift movement on immigration following the debt ceiling debate. During an interview with NPR’s Kojo Nnamdi last month, Goodlatte told listeners the House could move on immigration legislation shortly. “[M]y best estimate is that we will be ready to take up immigration bills very soon. It may be October, but in my opinion, the five bills that have been passed out of [committee]…are ready to go to the floor of the House. And it’s my hope that they will come to the floor of the House as soon as possible.” (See Kojo Nnamdi Show Transcript, Sept. 10, 2013)
Other Members have pushed the date back until closer to the Thanksgiving recess, which takes place the week of November 25. According to true immigration reformer Rep. Steve King (R-IA), “[L]eadership is looking to a date near Thanksgiving to try to move something.” (breitbart.com, Sept. 29, 2013)
Meanwhile, a spokesperson for Majority Leader Eric Cantor, Doug Heye, has confirmed immigration remains on the House agenda, but has refused to say when it may be addressed. “Moving immigration forward remains a priority, but right now there’s no firm timetable,” he said. (Fox News Latino, Sept. 30, 2013)
When the House acts, it is widely expected that Speaker John Boehner (R-OH) will first take up Rep. McCaul’s border bill, co-sponsored by fellow Texan and longtime amnesty advocate Rep. Sheila Jackson Lee (D-TX). Unfortunately, H.R. 1417 shares many of the same problems with the Senate amnesty bill (S. 744). For example, H.R. 1417 requires the Department of Homeland Security (DHS) to submit a plan for apprehending 90 percent of illegal border crossers, but fails to require that DHS actually achieve that goal. Many anticipate House Leadership intends to use H.R. 1417 as a vehicle to conference with the Senate bill.
In addition to H.R. 1417, Speaker Boehner is also expected to bring to the floor one or more immigration bills authored by House Judiciary Chairman Bob Goodlatte (R-VA). Alarmingly, Chairman Goodlatte recently met with leading pro-amnesty Democrats about reaching a consensus on an amnesty scheme for the current 11-12 million illegal aliens in the country. According to news reports, Goodlatte sat down with Reps. Luis Gutierrez (D-IL) and Henry Cuellar (D-TX) to discuss how to move forward legislation. According to Rep. Cuellar, Chairman Goodlatte expressed willingness to work with the pro-amnesty representatives and to support some of their amendments to his immigration bills. (Roll Call, Sept. 26, 2013)
This behind-the-scenes movement by House Republicans on immigration is particularly troubling as key members have indicated they want to conference the House bills with the Senate amnesty bill. In particular, House GOP Policy Chair James Lankford (R-OK) told reporters this summer he was convinced that his fellow Republicans were prepared to vote down any piece of legislation emerging from conference committee with which they did not agree, insinuating that a House-Senate conference committee was a done deal. (Newsmax, July 11, 2013; see also Speaker Boehner’s comments as reported in The Hill)
Biometric Bill Does Little to Secure Borders
According to FAIR sources, House Republicans plan to move quickly on a biometric entry-exit bill introduced last month by House Border and Maritime Subcommittee Chairman Candice Miller (R-MI). While touted as a bill to secure the nation’s ports of entry, a closer analysis of H.R. 3141, “The Biometric Exit Improvement Act of 2013, demonstrates the legislation does nothing more than require — and actually undermine — current law.
Congress already requires that a biometric entry-exit system be in place at all land, sea, and air ports of entry. (See 8 U.S.C. 1365b) Indeed, Congress first created the entry-exit system was in 1996, and added a biometric requirement to it in 2001. (See Illegal Immigration Reform and Responsibility Act; see also USA PATRIOT Act)
Nonetheless, Rep. Miller’s bill simply gives Homeland Security years to implement what Congress originally required more than a decade ago. For instance, H.R. 3141 gives the Secretary of Homeland Security 6 months just to submit to Congress a plan to establish a biometric exit data system that complies with preexisting law (8 U.S.C. 1365b), something that should already be in place.
H.R. 3141 then gives the Secretary two years from enactment to establish a biometric exit system at the 10 busiest U.S. international airports and seaports, and does not require full implementation at all air and sea ports until five years following enactment.
Then, H.R. 3141 undermines current law by only requiring partial implementation of the biometric exit program at land ports of entry. Indeed, the bill requires the Secretary only have a fully operational biometric exit program for pedestrian-only land ports of entry, while merely putting into place a pilot program for vehicular outbound traffic. As such, by creating a distinction between pedestrian and non-pedestrian land traffic, H.R. 3141 eliminates a requirement that all land ports of entry contain a biometric exit component.
Moreover, only requiring partial implementation of biometric exit at land ports of entry undermines the purpose of the entire entry-exit system. If DHS does not collect biometric data from persons leaving the U.S. by vehicle, the data DHS receives from the system will have a gaping hole. That is, DHS may be able to match up arrivals and departures for some aliens, but when aliens enter and have no corresponding departure data, DHS will not know whether that individual is still in the country because the individual may have left via car over the U.S.-Mexico border. Not only would this outcome pose national security threats, but it would undermine the ability of Congress to hold DHS accountable for visa overstays.
It is uncertain when the House Homeland Security Committee will take up H.R. 3141, though FAIR’s sources indicate it could be as soon as next week. The bill is co-sponsored by pro-amnesty ranking member of the Border and Maritime Subcommittee Rep. Sheila Jackson-Lee (D-TX), as well as Democrats Loretta Sanchez (D-CA) and Bennie Thompson (D-MS). Republican co-sponsors of the bill thus far include Michael McCaul (R-TX) who chairs the full Homeland Security Committee, and Peter King (R-NY).
At a Georgetown University symposium entitled “Implementing Immigration Reform: Imagine the Possibilities” last Wednesday, a high level Obama administration official expressed optimism about the possibility that S. 744, the Senate comprehensive amnesty bill, would become law.
Obama’s Senior Policy Director for Immigration, Felicia Escobar, said the White House has received “positive signs that Speaker Boehner and the Republican caucus do want to find a solution.” (The Daily Caller, Sept. 25, 2013). Escobar based her statement on conversations held with House Speaker John Boehner (R-OH), Majority Leader Eric Cantor (R-VA), and Judiciary Committee Chair Bob Goodlatte (R-VA). Moreover, Escobar suggested the White House was not fixated on the House passing a comprehensive amnesty bill. If the House brings to the floor a bill that is not comprehensive, Escobar said, it was “OK if we can get to a place and sit down and negotiate a final product” that incorporates amnesty. (Id.)
Last Thursday, the House Committee on Homeland Security’s Border Security Subcommittee held a hearing entitled “Fulfilling a Key 9/11 Commission Recommendation: Implementing Biometric Exit.” In her opening remarks, Subcommittee Chairman Candice Miller (R-MI) said, “a biometric entry-exit system stands out as one of the largest unfinished border security challenges that [the Department of Homeland Security] has yet to tackle in a really meaningful way.” (Bloomberg Government Transcript, Sept. 26, 2013). Underscoring the importance of the 9/11 Commission’s directive, she added, “Without a viable biometric exit system, visa holders can overstay their visa and disappear into the United States, just as four of the 9/11 hijackers were able to do.” (Id.)
Congress first required the establishment of an entry-exit system for all aliens coming to and from the United States in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. (See P.L. 104-208). Then, just five years later in the USA PATRIOT Act (P.L. 107-56), Congress required that the system focus on biometric technology and be put into place “with all deliberate speed and as expeditiously as practicable.”
Nevertheless, more than a decade later and despite being a key recommendation of the 9/11 Commission, the biometric exit component has not been implemented. In fact, Department of Homeland Security officials told the General Accounting Office that the agency had no intention of even putting forth an analysis of the costs about biometric air exit options for 3 years – a report that the GAO does not even think DHS will be able to complete by the fiscal year 2016 budget cycle, as promised. (GAO, July 2013).
In response, Members of Congress expressed discontent over the Department’s refusal to implement decade’s old law. Rep. Lou Barletta (R-PA) expressed his exasperation: “That’s 20 years – 20 years to come up with a report on the costs and benefits.” (Bloomberg Government Transcript, Sept. 26, 2013). Barletta was especially concerned that the exit system was not installed “when we know for a fact that visa overstays is the preferred entry into this country by terrorists.” (Id.) He also pointed out that 14 other nations, including the United Kingdom, Ireland, France and Australia, have already implemented biometric entry-exit systems. (Id.)
Rep. Lamar Smith (R-TX), a senior Homeland Security Committee Member who spearheaded the 1996 law, echoed his colleague’s concerns. The United States should “catch up with other countries and perhaps even lead the pack when we have so much at stake and so many individuals in this country we can’t keep track of or and don’t know who they are,” Rep. Smith told the witnesses. (Id.) He also pointed out that DHS has continuously failed to comply with Congressional requirements to submit annual reports to Congress on the number of visa overstays, and that DHS has not used the $2.5 billion appropriated to it in 2009 to fully implement the biometric entry-exit system. “It doesn’t appear to me that the Department of Homeland Security is really engaging in a serious or sincere effort to implement the entry-exit system,” Rep. Smith said. “The administration has either not enforced, or [has] undermined any number of immigration laws, and as far as I’m concerned, this is just another one.” (Id.)
Pro-amnesty groups announced last week plans to increase pressure for “comprehensive” immigration reform this fall. First, pro-amnesty activists are planning a so-called “National Day for Dignity and Respect” on October 5, with rallies and protests in dozens of cities calling for the end of all deportations of illegal aliens in the country. (Washington Post, Sept. 26, 2013) Then, on October 8 there will be a rally on the National Mall in Washington, D.C. to pressure House Republicans to pass “comprehensive” reform. (Id.; USA Today, Sept. 26, 2013) “We will see an outpouring from the community demanding a serious effort by Republicans to get immigration reform moving in the House,” said long-time amnesty advocate Rep. Luis Gutierrez (D-IL). (USA Today, Sept. 26, 2013) “I think the call will be so loud it will be hard to continue stalling.” (Id.) Congress “should understand we’re not going away,” he added. (Washington Post, Sept. 26, 2013)
However, since Congress rarely addresses hot-button issues — such as amnesty — during an election year, pro-amnesty groups have acknowledged time is of the essence if Congress is to approve a legalization program. “We really need the House to take action to have floor votes this fall,” said Frank Sharry, executive director of the pro-amnesty America’s Voice. (USA Today, Sept. 26, 2013) “If they don’t, it’s going to be — not impossible — but much tougher as we move into an election year.” (Id.) Indeed, the House has fewer than 30 working days remaining in 2013, leaving current efforts to pass amnesty up in the air. “I think it’s the conventional wisdom that immigration reform is dead in the House,” speculated Stephen Yale-Loehr, an “immigration scholar” at Cornell Law School. (Id.) “But I think there could still be a surprise,” he opined. (Id.)
ICE Says Murder of California Mother by Illegal Alien Could Have Been Prevented
On September 7, 2013, Martha Casillas, a 39-year-old mother of three, was brutally stabbed to death in her San Jose home while her children watched television in the next room. (San Jose Mercury News, Sept. 29, 2013) The police identified the alleged killer as Mario Chavez, the victim’s domestic partner and father of Casillas’ children. (Id.) Chavez is an illegal alien according to police and relatives. (Id.)
A month prior to Casillas’ murder, Chavez allegedly threatened his six-year-old son with a knife and was charged with criminal threats and domestic violence. (Id.) He was later released from the Santa Clara County jail on a $2,000 bond. (San Jose Mercury News, Sept. 11, 2013)
United States Immigration and Customs Enforcement (“ICE”) officials state that Casillas’ murder was preventable and blame Santa Clara County’s sanctuary policy for Chavez’s release. (San Jose Mercury News, Sept. 29, 2013) Santa Clara County, along with a handful of other localities that seek to impede federal enforcement of immigration law, ignores ICE detainer requests unless the detainee has been convicted of a serious or violent felony. (Santa Clara County Anti-Detainer Policy) An ICE detainer request asks jails to hold certain inmates for no more than an additional 48 hours to allow ICE agents time to make arrangements for the transfer of the alien into federal custody for the purpose of arresting and removing the alien. Santa Clara County’s policy also prevents local law enforcement from notifying ICE of the detainee’s incarceration status or release date.
In this case, Chavez had “only” a DUI conviction, so law enforcement officials could not cooperate with an ICE detainer request, nor notify ICE that Chavez had been released on bond. (San Jose Mercury News, Sept. 11, 2013)
Despite the tragic killing of Ms. Casillas, just one week later the California State Legislature passed a bill that would require a similar sanctuary policy state-wide. Assembly Bill 4 (“AB 4”), or the so-called “Trust Act,” generally bans local law enforcement officials from detaining any person on the basis of an ICE hold after that individual becomes eligible for release, except in a limited number of circumstances. Even then, AB 4 gives state and local law enforcement officials the option of releasing the most dangerous criminal aliens back onto the streets.
Sanctuary policies like AB 4 prioritize the interests of criminal aliens and undermine public safety. In 2012, former ICE Director John Morton stated his opposition to anti-detainer legislation. In a letter to FAIR, Morton warned that jurisdictions that ignore ICE detainer requests undermine public safety in their communities, noting that his agency has documented serious crimes committed by deportable aliens who have been released rather than handed over to ICE.
Similarly, former ICE Director Julie Myers Wood reportedly said regarding AB 4, “It makes no sense and is unconstitutional. The federal government has sole authority to enforce immigration law. In this instance California is telling the feds what you can and cannot do.”
The California State Sheriffs Association (CSSA) also opposes AB 4 and similar sanctuary policies. “You get a request from a federal law enforcement agency, and to say that you should basically willfully disobey, or not cooperate, or thwart that request from law enforcement puts local law enforcement in a difficult position,” said CSSA representative Aaron Maguire. (PRI Public Radio International, Sept. 10, 2013)
Likewise, the California District Attorneys Association, Los Angeles County District Attorney’s Office, and California Taxpayers for Improving Public Safety oppose AB 4. Representatives of the California District Attorneys Association said, “[W]e fear this bill would frustrate local cooperation with federal officials who maintain exclusive province over the enforcement of immigration law. It appears that this bill would permit a local policy to trump federal law, and it is not clear how such a provision would pass constitutional muster.” (See Opposition Statement, Senate’s Bill Analysis of AB 4)
AB 4 was sent to Governor Brown on September 18th. He can sign it, veto it, or let the 30 day time period for action run out, in which case the bill becomes law. The Governor has until October 13th to act.