Legislative Update: 10/25/2016
Schumer: Amnesty First Order of Business in a Democrat-Controlled Senate
Gang of Eight leader Sen. Chuck Schumer (D-NY), who stands to become the new majority leader should Democrats retake the Senate, has indicated that his first order of business would be to revive his mass guest worker amnesty bill. (CNBC, Oct. 18, 2016)
When asked by CNBC’s John Harwood about the potential sequencing for infrastructure, immigration, and tax reform legislation, Schumer said that “immigration reform, which passed the Senate 68-32 – Schumer-McCain” would be first. (Id.) He then added, “the mainstream conservatives in the Senate and House, who are a majority — and I don’t mean to be cliché but some of my best friends in the Senate are in this group — they will say to the hard right, to the 50 congressmen who seem to tie things in a knot and Paul Ryan, you know, go take a hike.” (Id.) Schumer also pointed out that Hillary Clinton, Ryan, and himself favor “comprehensive” immigration reform that would grant amnesty to virtually all illegal aliens in the country and vastly increase future legal immigration. (Id.) Further, Schumer acknowledged that middle class incomes are declining, ignoring the fact that amnesty and increased legal immigration are exacerbating factors that would take their toll on American workers. (Id.)
Schumer’s eagerness for amnesty and contempt for its opponents mirrors that of open borders Democrats in the House who are already plotting an amnesty push for 2017. (See FAIR Legislative Update, Oct. 18, 2016) According to a senior Democratic aide, Reps. Zoe Lofgren (D-CA)—who is currently the ranking member on the House Judiciary immigration subcommittee—and Luis Gutierrez (D-IL) have held “preliminary discussions” about crafting new “comprehensive” immigration reform legislation. (Id.) While specifics have not yet been released, the bill is expected to contain mass amnesty and similar provisions contained in the Gang of Eight bill favored by Schumer. (Id.) In the event that Donald Trump loses the general election, these key House Democrats plan on pressuring Republicans to pass amnesty by claiming that Trump’s immigration position ultimately led to his defeat. (Id.) “There are Republican women and men who want to get this done,” claimed Gutierrez. (Id.) “They’re going to have the ability to turn around to their caucus and to say, ‘How much longer do we want to just push away, push aside a growing immigrant Latino community in the United States?’” (Id.)
Mass amnesty remains widely unpopular with the American public, who strongly opposed the Gang of Eight bill that failed to become law. (See FAIR’s Gang of Eight Amnesty Bill Resource Page) The Gang of Eight bill, and its predecessor that failed in 2007, entirely ignore the painful lessons of the 1986 amnesty. In the 1986 bill, Congress granted amnesty to 3 million illegal aliens in exchange for promised enforcement of the laws, yet the enforcement never came and the illegal population quadrupled in 20 years. However, influential lawmakers such as Schumer, who promoted the 1986 amnesty as a member of the House of Representatives, continue to be optimistic that the next iteration of mass amnesty will somehow work when others have failed.
New statistics released last week from the Department of Homeland Security (DHS) reveal that illegal aliens are surging to the Southern border in the final year of Obama’s presidency. According to the U.S. Customs and Border Protection (CBP) data, the border patrol apprehended 408,870 individuals during Fiscal Year 2016. (See DHS Secretary Jeh Johnson Statement on Border Security, Oct. 17, 2016) This number easily surpassed the 331,333 apprehensions in Fiscal Year 2015 but fell short of the record high 479,371 in Fiscal Year 2014 when the unaccompanied minor surge from Central America was at its peak. (Id.)
Despite repeated claims by the Obama administration that the U.S.-Mexico border is secure, the DHS statistics prove that illegal immigration continues to be a major problem. According to a leaked DHS report that still has not been publicly released, DHS only catches approximately half of illegal border crossers. (See FAIR Legislative Update, Oct. 12, 2016) That means that at least 150,000 more illegal aliens successfully crossed the southern border in FY2016 compared to FY2015. However, the true number of unlawful border crossers could be much higher. Brandon Judd, president of the National Border Patrol Council, said the number of illegal aliens that make it into the United States may be closer to 75 percent considering a DHS policy memo that requires Border Patrol agents to release aliens who claim to have been in the United States prior to January 2014. (Id.)
The new apprehensions report depict a demographic shift in who is entering the country. According to the DHS release, there are fewer Mexicans and single adults crossing our southwestern border while the surge of Central American Unaccompanied Alien Minors (UAMs) and “family units” continues unabated. (See DHS Secretary Jeh Johnson Statement on Border Security, Oct. 17, 2016) In Fiscal Year 2016, there were 137, 366 UAMs and families apprehended compared to 136,986 in Fiscal Year 2014. (Id.)
The influx of UAMs and family units is unsurprising given the Obama administration’s special treatment of Central Americans. While fear of generalized violence has never been sufficient for granting asylum, many illegal aliens realized that if they uttered the phrase that they had “credible fear” of persecution (the initial threshold for an asylum claim) they would be released after posting a bond. (See FAIR Legislative Update, June 14, 2016) Also, because of a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, UAMs from Central America cannot be promptly returned to their home countries. (P. Law 110-457) Instead, they receive a “notice to appear” which sets a court date in the future before an immigration judge but illegal aliens refer to these official documents as “permisos” or free passes because it allows them to disappear into the interior of the United States and integrate into American society. (See FAIR Legislative Update, Feb. 16, 2016) The National Border Patrol Council estimates that 80-90 percent of UAMs fail to show up for the hearing. (Id.)
Interestingly, the number of UAMs and family units flooding the southern border in 2016 would have been significantly higher if Mexico had not protected its borders from illegal aliens — deporting nine out of ten Central Americans trying to cross illegally. (See FAIR Legislative Update, Aug. 2, 2016) In the first 4 months of this year, 43,506 Central Americans from El Salvador, Honduras, and Guatemala were kicked out of Mexico. (Id.) This total included 8,190 UAMs. (Id.) Still, the 59,692 UAMs apprehended in FY2016 were the second highest level ever, trailing only the 68,541 apprehensions in FY2014. (DHS Secretary Jeh Johnson Statement on Border Security, Oct. 17, 2016) Additionally, the 77,674 family units apprehended in FY2016 significantly exceeded the previous high of 68,445 from FY2014. (Id.)
Predictably the release also asserts that the administration’s immigration enforcement has successfully reduced the numbers of “serious convicted criminals” and prioritized “those apprehended at the border.” As evidence of this, Johnson states that in 2009 “35 percent of those deported by U.S. Immigration and Customs Enforcement (ICE) were convicted criminals, today the percentage is about 60 percent.” While the Obama administration claims their top priority is removing criminal aliens, the number of criminal aliens arrested and removed clearly belies their statement. In 2015, ICE made 119,772 arrests compared to the 232,287 arrests made in 2013. (See Center for Immigration Studies, Apr. 27, 2016, FAIR Legislative Update, May 3, 2016) Likewise, the administration removed 216,810 criminal aliens in 2013 compared to 139,368 in 2015. (See ICE Criminal Alien Stats, 2015, FAIR Legislative Update, May 3, 2016)
Outrageously, DHS Secretary Jeh Johnson used the release of apprehension statistics to call for mass amnesty. “At all times throughout President Obama’s administration, we have endeavored to enforce the immigration laws in a fair and humane way, consistent with the immigration system we have,” Johnson claimed. (DHS Secretary Jeh Johnson Statement on Border Security, Oct. 17, 2016) “But the reality is the system is broken, and badly in need of comprehensive immigration reform that only Congress can provide.” (Id.) Johnson concluded by saying that the millions of illegal aliens “living in the shadows for years must be given an opportunity to come forward and get right with the law.” (See
A new report by the Center for Immigration Studies (CIS) analyzing U.S. Citizenship and Immigration Services’ (USCIS) data finds that asylum claims at the border are up significantly during the Obama administration. “The number of people arriving at U.S. land borders and ports of entry to file asylum applications has soared dramatically in the last year, and is now about 10 times higher than it was in 2009,” wrote Jessica Vaughan, policy director at CIS. (CIS, Border Asylum Claims Up Tenfold Since 2009, October 2016)(emphasis added) Specifically, this report is discussing “credible fear” of persecution claims– the initial threshold for seeking asylum—by illegal aliens apprehended at the border.
Under federal immigration law, the U.S. government can grant asylum to individuals who claim a fear of persecution or torture by their government. (See INA § 208(b)(1)(A); § 101(a)(42)(A)) However, aliens who simply arrive at the border without documents and claim asylum must first demonstrate a “credible fear of persecution” through a credible fear interview. (See INA § 208; 8 C.F.R. 208.30(d)) If an asylum officer determines there is no credible fear of persecution, the alien is immediately subject to deportation without a hearing, known as expedited removal. (INA §235(b)(1)(B); 8 C.F.R. 235.3(b)) On the other hand, if the asylum officer determines the alien has established a credible fear of persecution, the officer will refer the alien to an immigration judge for a full asylum hearing. (INA § 235(b)(1)(B); 8 C.F.R. 235.3(b))
The surge of aliens, primarily from Central America, claiming “credible fear” is unsurprising given the Obama administration’s practice of rubber stamping approvals. In 2009, President Obama took executive action to grant parole to any alien deemed to have established a credible fear. (ICE Memo, Parole of Aliens Found to Have a Credible Fear of Persecution or Torture, Dec. 8, 2009) The granting of parole is significant because it gives an alien lawful status in the country and the ability to work legally. Predictably, nearly all credible fear claims are approved which has led to a substantial increase in people coming to the southern border claiming “credible fear.” Indeed, a February 2014 House Judiciary Committee hearing revealed that the Obama administration was approving 90 percent of “credible fear” reviews despite an audit finding that only 30 percent of applications were free of fraud. (See CIS, Border Asylum Claims Up Tenfold Since 2009, October 2016) Importantly, the Obama administration’s decision to release these aliens into the interior (through parole) violates the Immigration and Nationality Act (INA). The INA clearly states that if an asylum officer determines “credible fear” has been established, the alien “shall be detained for further consideration of the application for asylum.” (INA § 235(b)(1)(B)(ii)(emphasis added))
As expected, hardly any of the aliens approved for “credible fear” are determined to have legitimate asylum claims. “Statistics from the immigration courts show that very few applicants from the countries that make up this surge in new asylum applications will actually qualify to be granted asylum and eventual permanent residency,” notes Vaughan. (CIS, Border Asylum Claims Up Tenfold Since 2009, October 2016) With the exception of people from India (26 percent granted asylum), nationals from no other country reached double digit approvals between October 2014 and April 2016. (Id.) Only 5 percent of the 30,470 applications from El Salvador were approved; 9 percent of the 16,847 from Honduras; and 8 percent of the 14,488 from Guatemala. (Id.) Just 2 percent of the 11,318 claims by Mexicans were approved. (Id.)
In the CIS report’s conclusion, Vaughan raises several rhetorical questions that underscore the Obama’s administration’s clear goal of bringing as many people into the country as possible regardless of whether or not they have a valid claim to be here. “If applicants from these countries are not very likely to be approved, then why are they being allowed into the country to make a claim? Why are USCIS asylum officers giving so many of these cases the green light upon the initial credible fear reviews? Why are so many being granted parole and released, when it is obvious that most will end up joining the illegal population and be subject to deportation?” (Id.)
Last week, true immigration reformer Sen. Jeff Sessions (R-AL) revealed that nearly one million aliens with final orders of removal still roam free in American communities. (Sessions Press Release, Oct. 19, 2016) Approximately one quarter of these aliens are from countries that either refuse or delay repatriation of their nationals after they have been ordered removed from the United States. (Id.)
According to data provided to the Senate Judiciary Subcommittee on Immigration and the National Interest by U.S. Immigration and Customs Enforcement (ICE), as of June 25, 2016, there were 953,806 aliens in the United States with final orders of removal—182,761 of whom were convicted of criminal offenses. (Id.) Of the total number of aliens who have yet be removed, 242,772 come from countries that ICE deems “recalcitrant” or “uncooperative” in accepting their nationals after they receive final removal orders. (Id.) Of these nearly quarter of a million aliens, 57,029 were convicted of crimes – including a whopping 28,733 from Cuba, 7,705 from Vietnam, 2,140 from Haiti, and 1,848 from China. (Id.)
Under current immigration law, officials are supposed to retaliate against these countries by withholding visas until they are cooperative. (See INA § 243(d), 8 U.S.C. § 1253(d)) This penalty was first used in 2001 against Guyana, which refused to take back 113 of its citizens. (Washington Times, July 14, 2016) Unsurprisingly, just two months after the U.S. stopped accepting visas, Guyana yielded and cleared 112 for repatriation. (Id.) Despite the stunning success rate in Guyana, it took the U.S. government 15 years to once again employ what is clearly the most powerful tool at its disposal.
Several weeks ago, the Obama administration announced visa sanctions on the African country of Gambia, which has 1,268 nationals in the United States with final orders of removal – less than one percent of the number of aliens from countries that fail to fully cooperate with repatriation of their nationals. (Sessions Press Release, Oct. 19, 2016) Pursuant to these sanctions, the State Department will no longer issue visas to employees of the Gambian government, employees of certain entities associated with the government, as well as their spouses and children. (Id.)
Aside from targeting a small African nation whose citizens with final orders of removal amount to a drop in the bucket, the Obama administration has largely refused to address the more egregious recalcitrant countries, resulting in countless preventable tragedies. For example, in 2012, ICE released an alien who recently completed his sentence for attempted murder, instead of deporting him to Haiti, because Haiti refused to accept him. (Id.) Three years later, the same alien stabbed 25-year-old Casey Chadwick to death and then stuffed her body in a closet. (Id.) In 2010, an alien who should have been deported to Jamaica, but was instead released, broke into his ex-girlfriend’s home and stabbed her and a friend as her children slept nearby. (Id.)
To address what is clearly an important public safety issue, Rep. Brian Babin (R-TX) recently introduced H.R. 5224, the Criminal Alien Deportation Enforcement Act of 2016, which would withhold foreign aid and travel visas from any country that refuses to take back its own citizens who have been criminally detained in the United States. “Hundreds of Americans have died at the hands of criminal aliens, and to make things worse, some of them were simply let go because their countries of origin refused to take them back,” Babin said. (Babin Press Release, May 16, 2016) “This is absolutely insane – and my bill holds uncooperative countries accountable by stripping them of U.S. foreign aid and travel visas.” (Id.) FAIR supports H.R. 5224 and urges its swift passage.
The Pennsylvania House of Representatives passed a measure last Tuesday to prohibit sanctuary policies in the state. (CBS Philly, Oct. 17, 2015) Sanctuary policies tie the hands of law enforcement and impede the enforcement of immigration law. House Bill (HB) 1885 will also hold sanctuary cities liable for any harm or damage caused by a criminal alien released from a sanctuary city’s custody. (HB 1885 at § 1)
HB 1885, sponsored by Representative Martina A. White (R-170), ensures cooperation with federal immigration authorities by prohibiting policies that restrict municipal participation in immigration enforcement. The measure mirrors federal law by requiring all municipality employees be able to send, receive, and exchange immigration status information with the federal government. (Id. at 2) Additionally, the measure requires that municipal employees be able to request proof of eligibility from public benefits applicants. (Id. at 1) Under HB 1885, municipal governments must provide written notice to each public official, employee, and law enforcement officer of his or her duty to communicate and cooperate with federal authorities concerning immigration enforcement. (Id. at 2)
Representative White introduced HB 1885 to address the growing problem of sanctuary cities in the state. Philadelphia, Pennsylvania’s largest city, has been considered a sanctuary city since 2014. By issuing an executive order, former Philadelphia Mayor Michael Nutter (D) prohibited city law enforcement from cooperating with ICE and temporarily holding criminal aliens so that federal authorities could obtain custody of the alien. Mayor Nutter later rescinded his policy to increase cooperation with federal officials. Current Mayor Jim Kenney (D), however, immediately reinstated the sanctuary policy upon taking office.
U.S. Senator Pat Toomey (R-PA) supports HB 1885 and is an outspoken opponent to sanctuary cities. (Newsworks, Oct. 21, 2016) In a recent press conference, Senator Toomey slammed Philadelphia’s sanctuary policy, stating “this is not about immigration, it’s not about the politics of immigration. It’s about public safety. It’s about common sense. It’s about all of our security.” (Id.) Senator Toomey also reminded the press of recent violent crimes that would not have been committed but for Philadelphia’s policy to release criminal aliens rather than transfer custody to ICE.
The Pennsylvania Senate must approve HB 1885 by November 30 before it can send the measure to Governor Tom Wolf (D) for signature. Governor Wolf must sign or veto HB 1885 within ten days of receipt, or else it will automatically become law.