Legislative Update: 3/26/2014
Pelosi Tries to Force Amnesty Vote
Today, House Democrats, spearheaded by Minority Leader Nancy Pelosi (D-CA), are filing a “discharge petition” that could force a vote on H.R. 15, the House’s version of mass guest worker amnesty legislation. (Politico, Mar. 24, 2014) The House bill is virtually identical to the Senate Gang of Eight bill (S. 744), but without the Corker-Hoeven “border surge” amendment, and with the McCaul-Jackson Lee border bill (H.R. 1417) in its place. (See FAIR Legislative Update, Oct. 9, 2013)
A discharge petition is a way for any group of Representatives in the House to force legislation to the floor when House Committees will not act on it. Once a petition to “discharge” a bill receives a number of signatures equal to a majority of members in the House (218), the bill is eligible for a vote and placed on the House calendar. (See House Rules Committee website, Feb. 14, 2014) Discharge petitions allow House members to circumvent chamber rules requiring a piece of legislation first be passed through the primary committee of jurisdiction before it can be put before the full House of Representatives for a vote. (Id.) This literally means that the committee has been “discharged” of its responsibility to hear the bill. (Id.)
This latest petition effort, however, is widely anticipated to fail. “We’ll never get to 218 on the discharge petition,” Rep. Pelosi told a Sirius XM radio host weeks ago. (The Hill, Mar. 4, 2014) Even the three Republican co-sponsors on the House amnesty bill have all said they will not sign the petition. (Politico, Feb. 28, 2014) “No, there’s just no way,” said Rep. David Valadao (R-CA), who co-sponsored the bill last fall. (Id.) “To play politics that way is not the way to get something this serious done.” (Id.) The other two Republican co-sponsors include Rep. Jeff Denham (R-CA) and Ileana Ros-Lehtinen (R-FL).
Stay tuned to FAIR for details…
RNC Backpedalling Amnesty Support?
Just a year after the Republican National Committee (RNC) told its members in a report that they must support “comprehensive immigration reform” in order to win future presidential elections, Chairman Reince Priebus is now sending mixed signals on how he thinks the Party should handle immigration. (See Growth and Opportunity Project at p. 8, Mar. 18, 2013; see also FAIR Legislative Update, Mar. 18, 2013) The report, entitled the “Growth and Opportunity Project,” was commissioned by Priebus in response to the GOP’s failure to win the White House or Senate in 2012.
During a Christian Science Monitor event last week commemorating the report’s anniversary, Priebus unexpectedly made comments distancing himself from the report’s amnesty recommendation. “This is not the RNC’s report,” he insisted. (LA Times, Mar. 18, 2014) “It was a report that the RNC asked these people to put together…. And the report speaks to an array of issues that partly affect us and partly affect other people. And you’re asking me about a particular issue in the report that speaks to the legislature.” (Id.) These statements follow comments made by Priebus last month during an interview with Breitbart News when he said, “I can tell you what it means for me is no amnesty whatsoever. And I’ve never been in favor of programs that are akin to amnesty.” (See breitbart.com, Mar. 18, 2014)
Yet, at the Christian Science Monitor event Priebus also suggested that the GOP must address immigration, but was vague on what that means. “I think we do need to tackle this issue. And I think there’s general agreement in the party that that needs to happen. But I would say that there’s not agreement as to what exactly that package looks like,” he said. (LA Times, Mar. 18, 2014) Two days before, in an interview with inside-the-beltway publication Politico, Priebus claimed there is “consensus” within the GOP for “serious immigration reform.” (Politico, Mar. 16, 2014) “Doing nothing isn’t an option.” (Id.)
On the other hand, true immigration reformer Sen. Jeff Sessions (R-AL) used the report’s anniversary to criticize the RNC’s endorsement of amnesty at the expense of American workers. After pointing out in a National Review op-ed that Mitt Romney overwhelmingly lost the vote of individuals making $50,000 a year or less, Sessions wrote, “And what did the GOP’s brilliant consultant class conclude from this resounding defeat? They declared that the GOP must embrace amnesty. The Republican National Committee dutifully issued a report calling for a ‘comprehensive immigration reform’ that would inevitably increase the flow of low-skilled immigration, reducing the wages and living standards of the very voters whose trust the GOP had lost.” (National Review, Mar. 13, 2014) “A more colossal misreading of the political moment has rarely occurred.” (Id.)
Last week, U.S. Citizenship and Immigration Services (USCIS) announced that it would be reopening applications of illegal aliens who were denied provisional waivers of the 3 and 10-year bars to admission solely because they have a criminal record. (Daily Caller, Mar. 24, 2014) During the review process, if the Administration determines the criminal offense is not of a certain nature or severity, then USCIS will reverse the denial and grant the illegal alien the waiver to stay in the country.
The Obama Administration began granting “provisional” waivers to the 3 and 10-year bars last March after issuing a regulation giving themselves such authority. (See USCIS Final Rule, Jan. 3, 2013; see also Sec. Napolitano Press Release, Jan. 2, 2013) The provisional waiver allows illegal alien spouses and children of U.S. citizens to stay in the U.S. while they seek a green card by allowing them to apply for and receive a “provisional waiver” while remaining in the country so long as they can show that being separated from their citizen relative would cause that relative an “extreme hardship.” (See FAIR Legislative Update, Jan. 7, 2013)
Allowing illegal aliens to apply for and receive a provisional waiver while remaining in the U.S., however, circumvents current law governing admissibility into the country. Current law provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years, hence the name 3 and 10-year bars to admission. (See INA § 212(a)(9)(B)(i)) The government may already grant certain illegal alien relatives a waiver to the 3 and 10-year bars, but the illegal alien must apply for the waiver outside of the U.S. at a consular office. (INA § 212(a)(9)(B)(v)) The Administration’s new regulation last year changed that to allow illegal aliens to apply for the waiver from inside of the U.S., thus circumventing the 3 and 10-year bars because the alien would never have to return home.
Aliens qualifying for a provisional waiver must not be subject to a separate ground of inadmissibility under the Immigration and Nationality Act (INA) other than their unlawful presence. (See 8 CFR 212.7(e)). One of the many grounds of inadmissibility to the U.S. includes the conviction or admission of certain crimes, and exceptions to this ground of inadmissibility include criminal acts committed as a minor (under the age of 18), as well as for crimes whose maximum penalty does not exceed one year (misdemeanors). (See INA Section 212(a)(2)(A)(i)-(ii))
On January 24 the agency issued guidance to all USCIS employees instructing them not to deny applications by illegal aliens for a provisional unlawful status waiver if the alien’s criminal history is not of certain nature, including if it falls into one of the aforementioned exceptions. (See USCIS Field Guidance, Jan. 24, 2014) The two-page document states that if it “appears” that the applicant’s criminal offense either: (1) falls within the “petty offense [misdemeanors] or youthful offender” exception under the INA, or (2) is not a “crime involving moral turpitude,” then the immigration officer reviewing the case should not deny the application under the criminal grounds of inadmissibility. (Id.)
In doing so, the guidance represents another attempt by the Obama Administration to ensure they find a way to circumvent the law for as many illegal aliens as possible. It fails to define or provide examples of “petty offense” or “crime involving moral turpitude,” opening the door for broad and vague interpretations by the Administration as to who can stay in the country. It also takes the step of proactively opening cases of illegal aliens to find ways to make it easier for them to stay in the country despite the Administration’s constant talking point of “limited resources” as an excuse for refusing to enforce the law.
Federal Judge Rules State Proof of Citizenship Laws Must be Included in Voter Registration Forms
Last Wednesday, a federal judge ordered the Federal Election Assistance Commission (“EAC”) to add language to the Federal mail voter registration forms for Arizona and Kansas regarding those states’ proof of citizenship requirement. (Kobach v. Election Assistance Commission, No. 13-cv-4095, p. 28, Mar. 19, 2014) (hereinafter “Kobach”) Both Arizona and Kansas have adopted laws that require persons applying to vote to provide satisfactory proof-of-citizenship before becoming registered and requested the EAC to update the registration forms for their states. (Id. at 5) The Court held that the EAC may not refuse to update the state-specific registration forms. (Id. at 27)
In Kobach, Kansas Federal District Court Judge Eric F. Melgren tackled the question of whether the EAC was required to amend the state-specific voter registration forms as requested, or whether the EAC had discretion to deny the states’ request. Kansas and Arizona had sought such a change from the EAC to comply with a Supreme Court ruling that the EAC is the proper body to make such changes to the forms. (See Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013)) However, the EAC initially refused to modify the federal voter registration form, arguing the Commission lacked authority to make this change until it had a quorum. In August 2013, the two states sued the EAC to implement the changes.
Then, in December of 2013, Judge Melgren rejected the EAC’s lack of quorum argument and ordered the EAC to render an official decision on whether to make the requested changes to the state-specific forms.(Kobach at 5). However, in January 2014, the EAC once again refused to update the forms to acknowledge the proof of citizenship requirement. The EAC argued that it had discretion to refuse to make the changes sought by Arizona and Kansas because, in its view, the additional proof of citizenship was “not necessary.” (Id. at 25)
Arizona and Kansas challenged the EAC’s decision, charging it was unlawful and Judge Melgren agreed. The Court held that the EAC did not have the discretion to determine whether proof of citizenship is necessary on voting forms. The court then ordered that the EAC add certain language requiring evidence of citizenship requested by Arizona and Kansas to state-specific instructions of the federal mail voter registration form. (Id. at 28)
Kansas Secretary of State Kris Kobach, the named plaintiff in the case, praised the decision. “Kansas has paved the way for all states to enact proof-of-citizenship requirements,” Kobach declared. (Kansas City Star, Mar. 19, 2014) Alabama currently has unenforced legislation on proof-of-citizenship which its legislature passed in 2011. Alabama Secretary of State Ken Bennett said that whether Alabama will seek to put the proof-of-citizenship requirement into effect will depend partly on whether Kobach is appealed. (Tuscaloosa News, Mar. 24, 2014)
IMMIGRATION LEGISLATION MOVES IN THE STATES
Last week, the New York State Senate rejected Assembly Bill (“A.B.”) 2597, which sought to appropriate $25 million to provide financial aid to illegal alien students. New York already allows illegal aliens to receive in-state tuition at its public colleges and universities, despite its enduring fiscal crisis within its higher education system. (Fox News, Mar. 18, 2014) State funding for higher education has decreased by 14.7 percent, or by a total of nearly $2 billion, between FY 2008 and FY 2013, despite significant increases in enrollment in State University of New York and City University of New York schools. (Center on Budget and Policy Priorities, 2013) As a result, New York’s public colleges and universities were forced to increase tuition on average by more than 17.5%, reduce grants and scholarships, eliminate staff positions, close campuses, eliminate academic programs, reduce class offerings, increase class sizes, postpone necessary renovations, and make countless other subtractions. (Center on Budget and Policy Priorities, 2013; The Statesman, Mar. 25, 2013; NYSUT United , Mar. 3, 2011; New York Times, Dec. 3, 2010; New York Times, Apr. 7, 2010; Swim Swam, Apr. 30, 2013) The Senate’s vote prevents funding from being further diverted from New York’s citizen and legal resident students.
On Wednesday, March 12, the House International Trade Committee passed House Bill (“H. B.”) 1469, which increases penalties on employers who employ unauthorized aliens and expands Missouri’s E-Verify law to require private and public employers to participate in E-Verify. Under H.B. 1469, if an employer is found to employ unauthorized aliens, a court must suspend the business license of the employer for a minimum of one day to a maximum of 30 days for a first violation and a minimum of 30 days to a maximum of one year for a second violation. Employers would permanently lose their business license and corporate registration in the state for a third violation. (H.B. 1469) H.B. 1469 also allows a business entity to deduct any expenses incurred for participating in E-Verify from the business entity’s state taxes. (Id.)
Last week, the Florida House of Representatives passed an amended version of House Bill (“H.B.”) 851, which provides in-state tuition rates to illegal aliens. Under H.B. 851, illegal aliens who have attended high school in Florida consecutively for 4 years will be eligible for in-state tuition at Florida’s public colleges and universities. (H.B. 851) Illegal alien students seeking in-state tuition must apply to a Florida public college or university within 2 years of graduation and need only submit a Florida high school transcript for documentary evidence of eligibility. (Id.) Before passage in the House Thursday, H.B. 851 was amended to delete a provision that would have granted a similar out-of-state resident fee waiver to veterans. H.B. 851 will now be sent to the Senate for consideration.
On Wednesday, March 19, the Massachusetts Joint Committee on Public Safety and Homeland Security passed Senate Bill (“S.B.”) 1135, which prohibits state and local law enforcement officials from honoring U.S. Immigration and Customs Enforcement (“ICE”) detainer requests for any alien otherwise eligible for release from custody except under a very limited set of circumstances. (Boston Globe, Mar. 20, 2014) An ICE detainer request is a notification to state or local law enforcement agencies that ICE seeks custody of a particular alien for the purpose of removal from the United States. Under SB 1135, if an inmate has been granted bail, no matter the seriousness of the offense charged or criminal history, then they must be released. If the inmate has been charged with a serious crime, but has not been convicted in the past of a serious crime, then they must be released. If the inmate has been convicted of a serious crime in the past but did not serve five years in a state correctional institution, then they must be released. (S.B. 1135)
S.B. 1135, among other things, also prohibits local enforcement officials from denying bail based on the existence of an ICE detainer request; providing booking lists to ICE or communicating to ICE an inmate’s incarceration status or release date; and restricts and, in some cases, outright prohibits ICE agent access to inmates for interviews. (Id.) S.B. 1135 must be voted on in the Senate and House of Representatives before it can reach the Governor’s desk for signature.