Legislative Update: 1/24/2017
Trump Begins Using ‘Pen’ to Fix Immigration System
By: Robert Law
On his first full working day in the White House, President Donald Trump took lawful executive action on immigration to help American workers. Yesterday morning, Trump signed an executive order officially withdrawing the United States from the Trans Pacific Partnership (TPP) trade agreement negotiated by the Obama administration. (The Hill, Jan. 23, 2017) FAIR opposed the TPP because a “key feature” of the trade agreement was a “temporary entry” guest worker program that would have increased immigration without a say from Congress (which has plenary authority over immigration) or the American people. (See FAIR Legislative Update, Sept. 22, 2015; FAIR Legislative Update, Apr. 21, 2015)
According to sources close to the Trump administration, the new president is expected to issue a number of executive orders or executive actions in the coming days and weeks to undo President Obama’s dismantling of our immigration system. Indeed, Trump is reportedly poised to lawfully issue executive actions on sanctuary cities, worksite enforcement (possibly including E-Verify), and extreme vetting of refugees. (Axios.com, Jan. 23, 2017; New York Times, Jan. 21, 2017)
The actions taken (and to be taken) by Trump contrast significantly with the unilateral actions Obama took throughout his presidency. Infamously, in early 2014 after Congress had refused to pass his mass amnesty guest worker bill (S. 744), then-President Obama told his Cabinet he would implement his immigration agenda on his own despite the Constitution vesting immigration authority in Congress. Telling his Cabinet officials he was “not just going to be waiting for legislation,” Obama declared, “I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions.” (See FAIR Legislative Update, Jan. 22, 2014) After that, Obama attempted to expand his unconstitutional Deferred Action for Childhood Arrivals (DACA) amnesty program and implement a new one for the illegal alien parents of American citizen children, called Deferred Action for Parents of Americans (DAPA). Those amnesty programs were blocked by Federal Judge Andrew Hanen and upheld by the Fifth Circuit Court of Appeals before the Supreme Court split on the issue (meaning the injunction stayed in place). Undeterred, Obama took more unilateral action to gut interior enforcement, using his “pen” to end the successful Secure Communities enforcement program and replace it with the weaker “Priorities Enforcement Program” that exempt nearly 90% of illegal aliens from fear of deportation.
Stay tuned to FAIR as details emerge…
Priebus Suggests Trump Will Hold Off on Rescinding DACA, Seek Long-Term ‘Fix’
By: RJ Hauman
New White House Chief of Staff Reince Priebus said that President Trump will work with Congress to find a “solution” for illegal aliens who benefited from the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, rather than immediately rescinding the unconstitutional amnesty program. (Fox News, Jan. 22, 2017) “I think we’re going to work with the House and Senate leadership, as well as get a long-term solution on that issue,” Priebus said in an appearance on Fox News Sunday. (Id.) The DACA program—instituted by executive action in 2012— grants more than 700,000 illegal aliens a reprieve from deportation, provides work authorization for two years, and makes certain illegal alien minors eligible for some taxpayer benefits.
On the campaign trail, Trump pledged to rescind President Obama’s executive actions, including DACA. (See Trump Immigration Platform) Yet, pro-amnesty Sen. Dick Durbin (D-IL) recently claimed that President Trump told him that “we don’t want to hurt [DACA illegal aliens], we’re going to do something.” (New York Times, Jan. 21, 2017) Durbin, along with his Gang of Eight counterpart Sen. Lindsey Graham (R-SC), recently introduced legislation to protect DACA illegal aliens. (See FAIR Legislative Update, Jan. 17, 2017) The bill, known as the “Bar Removal of Individuals who Dream and Grow our Economy Act” (BRIDGE Act), would give DACA illegal aliens, and some who are not yet eligible for DACA, permission to remain in the U.S. and work authorization. (S. 128) Importantly, the Trump administration has yet to comment on Durbin’s claim and it remains to be seen whether the BRIDGE Act is the “long-term fix” that the White House has in mind.
FAIR remains steadfastly opposed to all Obama administration executive actions that have effectively exempted nearly 90 percent of all immigration law violators from enforcement, including the DACA program. (See Immigration Priorities for the 2017 Presidential Transition) In its transition report, FAIR advised President Trump to immediately revoke DACA because the program is unconstitutional, rewards illegal aliens, and encourages additional immigration. (Id.) Additionally, FAIR recommended revoking all work, identity, and immigration status documents issued pursuant to the authorizing memo. (Id.)
General Kelly Confirmed as DHS Secretary
By: Robert Law
Just hours after Donald J. Trump was sworn in as the 45th president, the Senate overwhelmingly confirmed retired General John Kelly as Secretary of the Department Homeland Security (DHS). Kelly only needed majority support to be confirmed but was confirmed 88-11, with only Sen. Jeff Sessions (R-AL)—Trump’s nominee for Attorney General—not voting. (Senate Roll Call Vote #30) The eleven Senate Democrats who voted against Kelly’s confirmation are: Blumenthal (D-CT); Booker (D-NJ); Cortez Masto (D-NV); Gillibrand (D-NY); Harris (D-CA); Heinrich (D-NM); Merkley (D-OR); Udall (D-NM); Van Hollen (D-MD); Warren (D-MA); and Wyden (D-OR). (Id.) Upon being confirmed, now-Secretary Kelly said, “I look forward to protecting our nation, its citizens, and preserving our liberty and upholding the rule of law as I continue my service to this great country.” (BGov, Jan. 20, 2017)
FAIR, which endorsed Kelly’s candidacy, applauded his confirmation as DHS Secretary. In a statement, Dan Stein, FAIR’s president said, “The American people have demanded that the nation regain control of its immigration policies and General Kelly is uniquely qualified to get the job done…. General Kelly knows firsthand the size and scope of threats the nation faces from terrorism, drugs and illegal immigration, and he has demonstrated the commitment to get the job done.” (FAIR Press Release, Jan. 20, 2017) “Under the new Secretary’s leadership and guidance, America’s dedicated immigration enforcement officers will finally be able to do their jobs, after years of having their hands tied by the Obama administration’s reckless, open border policies.” (Id.)
A summary of Kelly’s confirmation hearing before the Senate Homeland Security and Governmental Affairs Committee can be found here.
GAO: Obama Administration Encouraged Border Patrol to Underreport Recidivist Unlawful Border Crossers
By: Shari Rendall
In a January 2017 audit report, the Government Accountability Office (GAO) found that nearly 4,000 criminal aliens apprehended by the U.S. Border Patrol between Fiscal Years 2013-2015 were simply sent back to their home country rather than being detained and included in recidivism statistics. (See GAO Report Border Patrol Actions Needed to Improve Oversight of Post-Apprehension Consequences , Jan. 2017; Washington Free Beacon, Jan. 17, 2017) This audit was requested by House Homeland Security Chairman Mike McCaul (R-TX) to assess the Border Patrol’s implementation of the Consequence Delivery System (CDS) across the United States’ Southwestern border. (See GAO Report Border Patrol Actions Needed to Improve Oversight of Post-Apprehension Consequences , Jan. 2017)
Analysis of the apprehension data shows that the Border Patrol erroneously classified 49,128 out of 434,866 apprehensions (11 percent) during Fiscal Years 2013-2015. (Id. at 30) Of these, roughly 15,309 were criminal aliens. (Id.) From these, 7,929 aliens apprehended were first classified as criminal aliens and then were later re-apprehended and classified as persistent apprehension – a noncriminal class alien arrested four or more times by Border Patrol. (Id. at 30-31) The Border Patrol recommended criminal prosecution for only 3,912 aliens and voluntary return to their home country (the least effective and efficient consequence) for 3,717. (Id.)
Project Management Office Officials uncovered several explanations why agents may have incorrectly classified criminal aliens. They said that agents were told from headquarters “to reclassify criminal aliens who cannot be given a consequence of federal prosecution.” (Id. at 32) Also, officials said that agents “may rely on information sources that are incomplete and change over time, such as national or local lists of aliens identified for targeted enforcement.” (Id.)
The CDS system is integral to the Department of Homeland Security’s (DHS) efforts to secure the border against transnational criminal organizations and drug smugglers. (Id.) Border Patrol agents use CDS to classify an apprehended alien into a criminal or noncriminal class. Once the alien is placed into a class, the Border Patrol decides which of the eight consequences the alien should receive in order to deter that individual from trying again to illegally re-enter the United States. The consequences range from criminal prosecution to allowing an alien to voluntarily go back to his home country.
According to the GAO report, “without correctly classifying alien apprehensions according to CDS guidance, Border Patrol agents do not have reasonable assurance that aliens receive the most appropriate consequences” and that the “Border Patrol is most effectively using the CDS to reduce the threat from smuggling and other criminal activity.” (Id. at 32) Border Patrol agents were less likely in 2015 to choose the most effective and efficient consequences for apprehended illegal aliens. The application of CDS declined from 28 percent in Fiscal Year 2013 to 18 percent in Fiscal Year 2015. (Id. at introduction) According to the report the Border Patrol has not assessed the reasons for the low application of consequences but some agency officials have stated that “agents are hesitant to apply consequences that require referral to federal partners facing capacity constraints, such as the Department of Justice immigration courts.” (Id.)
The misidentification of recidivist unlawful border crossers and overall lack of border enforcement should cease now that Donald Trump has been sworn in as President of the United States. Trump campaigned on securing the border and combatting the drug cartels and will encourage Border Patrol agents to actually accomplish those goals rather than obstruct statistics to make the border appear secure as a precursor for amnesty. Similarly, newly confirmed DHS Secretary John Kelly testified during his confirmation hearing that “the law will guide” him on immigration policy.
Key Immigration Legislation Already Introduced in the 115th Congress
By: RJ Hauman
The 115th Congress has been in session for only three weeks, but House and Senate elected officials have wasted no time in introducing positive immigration legislation. Below are several FAIR-supported immigration bills worth keeping an eye on in the coming months.
S. 45, H.R 361 – Kate’s Law
S.45, introduced by Sen. Ted Cruz (R-TX) would establish mandatory minimum penalties applicable to aliens who unlawfully reenter the United States after being removed. The companion bill in the House, H.R. 361, was introduced by Rep. Steve King (R-IA). These bills are named after Kate Steinle, a California woman who was shot and killed by an illegal alien with five previous deportations and seven felony convictions.
S. 37, H.R. 174, H.R. 300 – Sarah’s Law
S. 37, introduced by Sen. Joni Ernst (R-IA), would require U.S. Immigration and Customs Enforcement (ICE) to take custody of an individual who is in the country illegally and is charged with a crime resulting in the death or serious bodily injury of another person. The companion bills in the House are H.R. 174 and H.R. 300, introduced by Reps. Steve King (R-IA) and David Young (R-IA) respectively. These bills are named after Sarah Root, a recent college graduate who was killed by an illegal alien in a drunken streetcar race.
S. 87, H.R. 400 – Stop Dangerous Sanctuary Cities Act
S. 87, introduced by Sen. Pat Toomey (R-PA), targets sanctuary cities—State and local jurisdictions with policies that obstruct the enforcement of Federal immigration law. Specifically, the bill denies certain Federal funds to jurisdictions that refuse to share information about criminal aliens with the Federal government or refuse to recognize ICE detainer requests. The companion bill in the House is H.R. 400, introduced by Rep. Diane Black (R-TN).
H.R. 483 – No Funding for Sanctuary Campuses Act
H.R. 483, introduced by Rep. Duncan Hunter (R-CA) targets sanctuary campuses— public institutions of higher education that impede the enforcement of Federal immigration laws. Specifically, the bill denies Federal Student Aid (title IV) funds to institutions that refuse to share information about illegal aliens with the Federal government, refuse to recognize ICE detainer requests, or harbor illegal aliens. Additionally, the bill denies title IV funds to institutions that provide in-state tuition to illegal aliens or prohibit Department of Homeland Security recruiting on campus.
H.R. 278 – Finish the Fence Act
H.R. 278, introduced by Rep. Dennis Ross (R-FL), would direct the Secretary of Homeland Security to complete the required 700-mile Southwest border fencing by Dec. 31, 2017.
H.R. 80 – Resettlement Accountability National Security Act
H.R. 80, introduced by Rep. Brian Babin (R-TX) would suspend refugee admissions in order to examine the costs of providing benefits to such individuals, as well as the impact of refugee resettlement on the national security of the United States.
Detailed summaries of these bills (and others) are forthcoming and will be located here.
Illegal Alien Sues Sanctuary City for Cooperating with ICE
By: State & Local Government Relations
An illegal alien from El Salvador filed a lawsuit in federal court against San Francisco, California last week, alleging the city violated its own sanctuary policies when it coordinated with Immigration and Customs Enforcement (ICE) officials for his transfer to federal custody. (Reuters, Jan. 18, 2017) San Francisco is a self-affirmed sanctuary city and prohibits its employees from assisting in the enforcement of federal immigration law in almost all cases. (San Francisco Administrative Code Chapter 121.3; Executive Directive, March 1, 2007) The lawsuit was filed in anticipation of President Trump’s promise to take action to eliminate sanctuary policies by conditioning federal funding on cities’ willingness to cooperate with federal immigration officials. (FAIR’s Analysis of Trump Immigration Position; ABC News, Nov. 15, 2016)
The plaintiff, Pedro Figueroa Zarceno, absconded from a 2005 removal order and had an immigration warrant issued in his name. (Complaint) When he contacted the San Francisco Police Department (SFPD) regarding a stolen vehicle in November 2015, the department identified Figueroa Zarceno’s warrant and contacted ICE. (Id.)SFPD subsequently detained the plaintiff just long enough for ICE officials to arrive and obtain custody of the defendant. (Id.)
The lawsuit asks the court to award the plaintiff with financial damages, declaratory relief, and an injunction to prohibit the SFPD from cooperating with ICE officials or engaging in other immigration enforcement activities. (Id.) Additionally, the plaintiff asks the court to issue an order requiring SFPD to provide the plaintiff U-Visa certification, making Figueroa Zarceno eligible for the visa that is available to victims or witnesses of crimes for the purpose of allowing them to help with the investigation or prosecution those crimes. (Id.)