Legislative Update: 4/18/2017

Travel Freeze Appeal on Fast Track to Supreme Court?

By: Robert Law

Litigation over President Trump’s executive order calling for a temporary travel freeze from countries that are hotbeds for terrorism appears to be on the fast track to the U.S. Supreme Court. Last month, two activist federal judges—both Obama appointees—imposed nationwide temporary restraining orders (TROs) that blocked the key provisions of the revised “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order from going into effect. (See FAIR Legislative Update, Mar. 21, 2017) In Hawaii, Judge Derrick Watson blocked Section 2 (90-day freeze of entry by individuals from Iran, Syria, Libya, Somalia, Yemen, and Sudan) and Section 6 (120-day freeze on all refugee resettlement and lowering the cap from 110,000 to 50,000 for the fiscal year). (Id.) In Maryland, Judge Theodore Chuang blocked just Section 2. (Id.) The Trump administration appealed these legally flawed rulings to the Ninth and Fourth Circuit Courts of Appeal, respectively.

In a procedural move that should allow the case to go before the Supreme Court more quickly, the Fourth Circuit agreed to hear the appeal en banc, meaning by the entire court. (The Hill, Apr. 10, 2017) Typically, a three-judge panel randomly selected from the entire Court of Appeals hears challenges to district court rulings. (See FAIR Legislative Update, Feb. 14, 2017) The decision of the entire Fourth Circuit to hear the appeal likely stems from the need to resolve contrasting rulings by judges within the circuit. In a separate case brought in the Eastern District of Virginia, Judge Anthony Trenga properly applied the law and upheld the temporary travel freeze. (See FAIR Legislative Update, Mar. 28, 2017) The Fourth Circuit will hear oral arguments on May 8. (The Hill, Apr. 10, 2017)

The litigation in the Ninth Circuit might follow a similar track. Initially, the appellate court agreed to hear an expedited appeal of Judge Watson’s ruling but by the standard three-judge panel. (See Politico, Apr. 10, 2017) Noting that the Fourth Circuit is hearing its appeal en banc, the State of Hawaii—the plaintiff in Judge Watson’s case—asked the full Ninth Circuit to hear the appeal of its case instead of just the panel. (Law360, Apr. 12, 2017) In its petition for an en banc hearing, Hawaii argued, “The lawfulness of President Trump’s executive action and the nationwide injunction imposed on by the court below are unquestionably issues of pressing, nationwide concern.” (Hawaii’s Petition for En Banc Hearing) “Those issues merit the attention of the full court.” (Id.)

Even if both Courts of Appeal rule against the Trump administration—a possibility with both courts made up of majority Democratic appointee judges—the Supreme Court is all but certain to take the case given the national security significance. Justice Neil Gorsuch’s recent confirmation to fill the seat vacated by Justice Antonin Scalia’s death last year means the high court has nine justices again. This is important because the outcome will now produce a majority ruling (at least 5-4) for either side that establishes binding precedent.

Public Support Grows for Merit-Based Immigration System

By: Shari Rendall

A recent Rasmussen poll shows that nearly two-thirds of Republican voters agree with President Trump’s vision of a legal immigration system that is merit-based and serves the interest of taxpaying American workers. According to the poll, 60 percent support President Trump’s preference of moving from a family-based system to a merit-based system. (See Rasmussen Reports, Apr. 10, 2017) The survey also found that independents favor switching to a more merit-based selection process 47 percent to 32 percent. (Id.) Overall, 44 percent of all American voters now prefer a merit-based system compared to 37 percent that want to keep the current family-based system, a four percent increase since December. (Id.)

President Trump underscored this vision in his first address to Congress at the end of February, noting that moving toward a more merit-based system would also protect American workers and their wages. (See FAIR Legislative Update, Mar. 7, 2017) During his speech, Trump noted that Canada and Australia have updated their immigration selection process to favor skilled immigrants. (Id.) Both of these advanced nations have created a transparent and objective selection process that awards points based on individual skills like education, language ability, experience, and employment. (See Library of Congress Report, June 9, 2015) By comparison, the U.S. admits approximately two-thirds of immigrants because they have family members already here, not because of personal merit, skills or achievements. Unsurprisingly, most are low skilled and poorly educated. The U.S. only admits about 15 percent of immigrants because of their skills or talents.

The Canadian and Australian merit-based systems provide the large-scale economic benefits that President Trump envisions. In Australia, 68 percent of newly admitted immigrants are skilled-based with a 96 percent labor-force participation rate. (Townhall, Mar. 11, 2017) For the 85 percent of these immigrants who are working full-time, their median income is $79,000 AUD. (Id.) Likewise in Canada, over 60 percent of the immigrants are skill-based and the labor participation rate through the federal skilled worker program is 89 percent. (Id.) Their average salary was $40,000 in the first year and $47,000 the year following. (Id.)

President Trump’s willingness to move away from the current system of lower-skilled immigration was a tacit endorsement of the RAISE Act (S. 354), legislation recently introduced by Sens. Tom Cotton (R-AR) and David Perdue (R-GA). (See FAIR Legislative Update, Feb. 14, 2017) For over a quarter century, the United States has accepted an average of 1 million immigrants annually with most being immediate family members of U.S. citizens, or family members sponsored by permanent resident aliens already in the U.S. The RAISE Act takes a crucial first step to move the immigrant selection process to a more merit-based system by halving overall immigration, limiting family-based migration to just spouses and minor children, and eliminating the visa lottery that issues 55,000 visas randomly regardless of an individual’s skill and ability to succeed. (Id.)

FAIR supports the RAISE Act and urges its swift passage.

AG Sessions Renews Commitment to Criminal Immigration Enforcement in Department-Wide Memo

By: RJ Hauman

In conjunction with a speech delivered at the southern border by Attorney General Jeff Sessions last Tuesday, the Department of Justice (DOJ) issued a memo to all United States Attorneys that mandates the prioritization of criminal immigration enforcement. (Sessions Memo to U.S. Attorneys, Apr. 11, 2017) The memo—which represents a significant departure from Obama-era policies—directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration. (DOJ Press Release, Apr. 11, 2017)

Additionally, Attorney General Sessions revealed that DOJ plans to add 50 more immigration judges to the bench this year and 75 next year. (Id.) He also highlighted the Department’s plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts. (Id.)

Below are the key directives from the Attorney General’s memo:

Charging Practices

According to the memo, a renewed focus on criminal immigration enforcement will “disrupt organizations and deter unlawful conduct.” (Sessions Memo to U.S. Attorneys, Apr. 11, 2017) Therefore, effective April 11, federal prosecutors are now required to consider for prosecution all of the following offenses:

• 8 U.S.C. § 1324 (“[b]ringing in and harboring certain aliens”) and related offenses. Sessions noted, during his remarks at the southern border, “We are going to shut down and jail those who have been profiting off this lawlessness—people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.” (Id.)
• 8 U.S.C. § 1325 (“[i]mproper entry by alien”). “Where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present,” said Sessions. (Id.)
• 8 U.S.C. § 1326 (“[r]eentry of removed aliens”). According to Sessions, “Aliens that illegally re-enter the country after prior removal will be referred for felony prosecution—and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.” (Id.)
• 18 U.S.C. § 1028A (“[a]ggravated identity theft”) & 18 U.S.C. § 1546 (“[f]raud and misuse of visas, permits, and other documents”). Sessions said, “Where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft—the latter carrying a two-year mandatory minimum sentence.” (Id.)
• 18 U.S.C. § 111 (” [a]ssaulting, resisting, or impeding” officers). Specifically addressing the Customs and Border Protection (CBP) personnel assembled before him, Sessions said, “I have directed that all 94 U.S. attorneys’ offices make the prosecution of assault on a federal law enforcement officer—that’s all of you—a top priority.” (Id.)

Border Security Coordinators

To further the memo’s criminal immigration enforcement objective, Sessions has directed each of the 94 federal districts to designate a “Border Security Coordinator” by close of business today. (Id.) The coordinators will be responsible for the following (Id.):

• Overseeing the investigation and prosecution of the offenses listed above;
• Attending training programs with other coordinators regarding these offenses;
• Providing legal advice and training to Assistant U.S. Attorneys regarding these offenses; and
• Maintaining and routinely reporting prosecution statistics related to these offenses. (Id.)

Indiana Lawmakers Pass Anti-Sanctuary Campus Bill

By State & Local Government Relations

The Indiana Senate voted 38-10 on Tuesday to pass Senate Bill (SB) 423, which would stop colleges and universities in the state that receive state or federal funds from impeding the enforcement of federal immigration law. (NWI Times, Apr. 11, 2017) The Indiana House of Representatives approved the bill, 72-26, earlier this month. (Id.)

SB 423 extends the state’s anti-sanctuary law to prohibit all colleges and universities in the state that receive state or federal money from implementing any policy that prohibits or in any way restricts employees from maintaining immigration status information or sharing it with the federal government. (SB 423) Colleges and universities, under SB 423, are also prohibited from limiting or restricting the enforcement of immigration laws to any less than the full extent permitted by federal law. (Id.) Current Indiana law already requires all state agencies to comply with these requirements. (IC 5-2-18.2-2.2)

“If we can say that universities don’t have to follow it then we can say someone else doesn’t have to follow anything and then the law won’t mean anything,” said Senator Michael Young (R-35), who co-authored the bill. (WISHTV, Apr. 11, 2017)

Indiana is the third state this year to pass anti-sanctuary campus legislation. Georgia and Mississippi legislatures both passed measures during this year’s legislative session to stop colleges and universities in their states from shielding illegal aliens from immigration enforcement. (FAIR Legislative Update, Apr. 4, 2017; FAIR Legislative Update, Mar. 14, 2017) Mississippi’s bill is in effect. Lawmakers in Georgia, however, are still waiting on Governor Nathan Deal (R) to approve their anti-sanctuary campus measure before it can become law. Additionally, lawmakers in at least 12 other states have introduced legislation to ban sanctuary campuses in their states this year.

Indiana Governor Eric Holcomb (R) must sign SB 423 before it can become law. If the Governor does not sign or veto the bill within 7 days of receiving it, SB 423 will automatically become law. If enacted, SB 423 will go into effect July 1, 2017. (SB 423)