Legislative Update: 4/23/2014
Obama Administration Weighing Another Backdoor Amnesty
Just four months into his new job, Secretary of Homeland Security Jeh Johnson is considering further restricting his Department’s ability to deport illegal aliens. (Associated Press, Apr. 21, 2014)
In a story posted by the Associated Press Monday, two sources close to Secretary Johnson say he is weighing limiting deportations on illegal aliens who do not have “serious criminal records.” (Id.) The sources included the former acting Director of Immigration and Customs Enforcement, John Sandweg, and an amnesty advocate who has allegedly been engaged in talks with Administration officials but would only speak on the condition of anonymity. (CBS News, Apr. 21, 2014)
According to Sandweg and the amnesty advocate, Johnson is considering changing the Administration’s existing “priorities” for deporting illegal aliens to exclude illegal aliens who have re-entered the country after being already deported (a felony), as well fugitives from immigration proceedings. (Associated Press, Apr. 21, 2014) Sandweg, who spent five months acting as the country’s chief immigration enforcer, advocated for these exact changes in a recent op-ed he penned for the Los Angeles Times. (See FAIR Legislative Update, Apr. 2, 2014)
Thus far Homeland Security is staying tight-lipped about the potential reprieve for illegal aliens. “Any report of specific considerations at this time would be premature,” claimed a DHS spokesman. (Associated Press, Apr. 21, 2014) He said Johnson “has undergone a very rigorous and inclusive process to best inform the review.” (Id.)
Talk of the potential changes come just one month after President Obama announced that he ordered Secretary Johnson to review Homeland Security’s deportation policies, and less than two weeks after Johnson met with amnesty advocates in the Congressional Hispanic Caucus. (See FAIR Legislative Update, Mar. 19, 2014; see also FAIR Legislative Update, Apr. 16, 2014) Stay tuned to FAIR as details emerge…
Speaker Boehner Tells Donors He is “Hellbent” on Getting Immigration Done
According to attendees at a Las Vegas fundraiser last month, House Speaker John Boehner (R-OH) told a room full of donors that he is “hellbent” on getting immigration reform legislation passed this year. (Wall Street Journal, Apr. 17, 2014) The statement is the latest from the Speaker indicating he intends to advance amnesty legislation this year, possibly after most Republican primaries are over in order to avoid voter retaliation from the Republican base. (See FAIR Legislative Update, Apr. 2, 2014)
However, as with previous statements, Speaker Boehner also indicated that President Obama would have to do more to enforce U.S. immigration laws first. (See FAIR Legislative Update, Mar. 12, 2014; see also FAIR Legislative Update, Feb. 12, 2014) While a spokesman for the Speaker did not deny the comment, he did say the quote does not reflect any change in position. “Nothing has changed. As he’s said many times, the Speaker believes step-by-step reform is important, but it won’t happen until the president builds trust and demonstrates a commitment to the rule of law.” (The Hill, Apr. 18, 2014)
True immigration reformer Senator Jeff Sessions (R-AL) blasted House leaders for considering pushing amnesty legislation after primary season is over. In a release, the Senator said: “At a time when trust in the President is at record lows, Republicans should not sacrifice their own credibility with such a maneuver. Such action would represent a colossal breach of the public trust: saying one thing before the primaries and then doing another thing after. Republican leaders must recognize that our party is now the last line of defense for American workers. We must proudly embrace this responsibility. Republicans must expose the harm the Administration has done — not join it in delivering a hammer blow to the middle class.”
A new memo from United States Citizenship and Immigration Services (USCIS) suggests that immigration officials are finally beginning to address the explosion of asylum cases in the United States. The memo, authored by John Lafferty, chief of the Asylum Division within USCIS, revises guidance for asylum officers who determine whether an alien is eligible for a full asylum hearing before an immigration judge. (USCIS memo, Feb. 28, 2014) The revision appears intended to curb deviations from regulations regarding who may receive asylum.
Under federal immigration law, the U.S. government can grant asylum to individuals who claim a fear of persecution or torture by their own government. Specifically, the Immigration and Nationality Act (INA) reads that asylum may be granted to “any person who…is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….” (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)) The outcome of the interview is important because if the asylum officer determines the alien has established credible fear of persecution, the officer will refer the alien to an immigration judge for a full asylum hearing. (Id.) If an asylum officer determines there is no credible fear of persecution, the alien is immediately subject to deportation without a hearing (expedited removal). (See INA 235(b)(1)(B); 8 C.F.R. 235.3(b))
The standard for establishing credible fear is based on the “significant possibility” the alien will establish eligibility for asylum. More specifically, an asylum officer will determine the alien has a credible fear of persecution “if there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, the alien can establish eligibility for asylum” under INA Section 208. (8 C.F.R. 208.30(e)(2)(emphasis added))
Despite this significant possibility standard, asylum officers found more instances of credible fear in 2013 than they did in 2007 through 2011 combined. (USCIS memo, Feb. 28, 2014) In fact, USCIS recorded a 250 percent increase in referrals of asylum claims to immigration judges between 2012 and 2013 alone. (Id.)
This spike in referrals, and the increase of resources needed for credible fear adjudications, led USCIS to issue the Feb. 28 memo to “reinforce” the significant possibility test. (Id.) Lafferty wrote, “In light of concerns that the ‘significant possibility’ standard has lately been interpreted to require only a minimal or mere possibility of success,” Lafferty writes, “the revised [guidance] clearly states that a claim that has no possibility or only a minimal or mere possibility does not meet the…standard.”
Not surprisingly, the dramatic increase in credible fear referrals clearly correlates to an overall spike in claims of credible fear. Between 2012 and 2013, the number of credible fear claims more than doubled (36,026 in 2013 vs. 13,931 in 2012). (Congressional Research Service testimony, p. 14, Dec. 12, 2013) Leading this increase were aliens from El Salvador, Guatemala, Honduras, Mexico, India, and Ecuador. (Id.)
The explosion of asylum cases has been fueled by the Obama Administration’s decision to release more asylum seekers from detention. Under current law, an alien seeking asylum must be detained pending an asylum hearing before an immigration judge. (INA 235(b)(1)(B)(ii)) An alien may only be released from detention prior to the full asylum hearing, through what is called parole, for “urgent humanitarian reasons” or “significant public benefit.” (INA 212(d)(5); 8 C.F.R. 212.5(b))
But despite the clear statutory language and relevant regulations limiting the instances where parole from detention may be granted for asylum seekers, the Obama Administration expanded its application by executive fiat. Through a policy directive, former Immigration and Customs Enforcement (ICE) Director John Morton authorized parole for any asylum applicant with a “credible fear” who “presents neither a flight risk nor danger to the community.” (ICE Directive, Dec. 8, 2009) This policy change effectively releases most aliens claiming asylum who entered the country unlawfully into the country until their asylum hearing can be heard by an immigration judge, sometimes years from the initial claim.
Now, five years after this Morton Memo was issued, it appears some in USCIS are still attempting to mitigate the damage.
American Legion: No Amnesty in NDAA
The American Legion, our country’s largest wartime veterans service organization, voiced its opposition to House Republicans’ plan of including amnesty in the National Defense Authorization Act (NDAA). (Washington Times, Apr. 15, 2014; see also FAIR Legislative Update, Apr. 9, 2014) Last week’s announcement came just one day after House Majority Leader Eric Cantor (R-VA) threw his support behind Rep. Jeff Denham’s (R-CA) attempt to add his ENLIST Act (H.R. 2377), a military-based DREAM Act, to the NDAA. (breitbart.com, Apr. 14, 2014; see also FAIR Legislative Update, Apr. 16, 2014) The ENLIST Act requires the Secretary of Homeland Security to issue green cards just for enlisting in the military with the only conditions being that the illegal aliens: (1) entered the U.S. before 2012; and (2) were younger than 15 when they entered the country. (H.R. 2377)
The American Legion, whose mission includes “advocating patriotism and honor, promoting strong national security, and continued devotion to our fellow servicemembers and veterans” blasted the plan. (See legion.org/mission) “The NDAA needs to stand alone, and I think attaching an issue as contentious and complex as immigration and recruitment policy would only stall the NDAA,” said John Stovall, director of the Legion’s national security division. (Washington Times, Apr. 15, 2014) “The legion’s long-standing policy remains that we are opposed to any policy, any legislative action that amounts to amnesty, and I think that would fall under that definition.” (Id.)
In response to the opposition, President Obama met with American Legion leaders in a closed-door meeting on Friday. Interestingly, neither side’s statements after the meeting mentioned immigration. The official White House press readout noted several topics discussed and generically mentioned that Obama “expressed his thanks to the American Legion for its advocacy on behalf of our nation’s Veterans.” (White House Press Release, Apr. 18, 2014) Meanwhile, the American Legion’s National Commander Dan Dellinger, who also met with Department of Veterans Affairs Secretary Eric Shinseki earlier that day, said the “meeting went very well” but made no mention of immigration as a topic of conversation. (legion.org, Apr. 18, 2014)
Outrageously, the effort to add illegal aliens to the military comes at a time when President Obama is shrinking the overall size of our armed forces. “The captains are a problem,” Gen. Ray Odierno, the Army chief of staff, conceded in an interview with the Associated Press. (Associated Press, Apr. 21, 2014) “Because when we increased the size of the Army we recruited heavily in certain year groups. So as we draw the Army down, those are over strength.” (Id.) Colonel Trevor Bredenkamp, commander of the 82nd Airborne Division’s 1st Brigade Combat Team, added that the “challenge is there are about 8 percent that they will have to select that don’t have any derogatory information in their file. So there will be some people that will say I don’t know why I was selected.” (Id.)
The House Armed Services Committee (HASC) has jurisdiction over the NDAA and is set to amend the bill, a process known as “markup,” on May 7th. (Chairman McKeon Press Release, Apr. 7, 2014). Because Rep. Denham is not on the committee, he needs an HASC member to introduce the ENLIST Act as an amendment. Currently, 11 of the ENLIST Act’s co-sponsors are HASC members, including Chairman Buck McKeon (R-CA). (See H.R. 2377 Co-Sponsors) Stay tuned to FAIR as details emerge…
Last week, President Obama and Majority Leader Eric Cantor (R-VA) clashed over immigration and whether a phone conversation between the two was primarily a dispute on the issue or an exchange of holiday pleasantries. (USA Today, Apr. 17, 2014)
The conflict started Wednesday morning when President Obama issued a press release marking the one year anniversary of the introduction of S. 744 that admonished House Republicans for refusing to pass it, and then only hours later called the Majority Leader on the phone. (Wall Street Journal, Apr. 16, 2014; White House Press Release, Apr. 16, 2014) “Instead of advancing commonsense reform and working to fix our immigration system,” the White House press release reads, “House Republicans have voted in favor of extreme measures like a punitive amendment to strip protections from ‘Dreamers.’” (Id.) In response to the call, that afternoon Majority Leader Cantor released a statement of his own, criticizing President Obama for calling him “to discuss his desire for comprehensive immigration reform” only “hours after he issued a partisan statement which attacked me and my fellow House Republicans and which indicated no sincere desire to work together.” (Cantor Press Release, Apr. 16, 2014)
The White House soon claimed, however, that the President did not call the Majority Leader to discuss immigration, but rather the issue only happened to come up when the President called to wish Cantor a happy Passover. (Wall Street Journal, Apr. 16, 2014; Politico, Apr. 16, 2014) Cantor’s statement, a White House official said, was “all staff bluster, [the phone call was] not tense at all.” (Huffington Post, Apr. 16, 2014) At a press conference on Thursday, President Obama himself repeated claims that the conversation was “very pleasant” and “friendly,” and that the “mismatch between press releases and the conversation” had been a surprise. (White House Press Conference, Apr. 17, 2014). However, he did acknowledge touting “comprehensive immigration reform” to the Majority Leader. (Id.) A Cantor aide had disputed the White House official’s characterization of the call as only incidentally about immigration, saying that was “assuredly” the topic of the phone call, but the Majority Leader had wished the President a happy Easter at the end of the conversation, and the President responded in kind. (Politico, Apr. 16, 2014)
Even as the Majority Leader blasted President Obama’s attack on Republicans for blocking the Senate’s massive amnesty bill, Cantor has himself recently pledged support for a different amnesty bill, Rep. Jeff Denham’s (R-CA) ENLIST Act. (See FAIR Legislative Update, Apr. 16, 2014; Cantor Press Release, Apr. 16, 2014; breitbart.com, Apr. 16, 2014). Cantor’s office publically admitted his support for Rep. Denham’s push to attach this military-based DREAM Act to the National Defense Authorization Act (NDAA) last week. (breitbart.com, Apr. 14, 2014). His statement slamming President Obama came only two days later. While the Majority Leader eagerly claims that “House Republicans do not support Senate Democrat’s [sic] immigration bill and amnesty efforts,” he himself has not renounced the House’s “Standards for Immigration Reform.” Yet these House principles are very similar to the amnesty principles the Senate Gang of Eight released ahead of S. 744, the Senate bill Cantor is now deriding. (See FAIR Legislative Update, Feb. 5, 2014)
Maryland: Governor O’Malley to Protect Criminal Aliens by Ignoring ICE Detainer Requests
Last week, Maryland Governor Martin O’Malley directed Maryland’s Department of Public Safety and Correctional Services to ignore U.S. Immigration and Customs Enforcement (“ICE”) detainers at its central booking facility in Baltimore City in all but extremely limited circumstances. (Washington Post, Apr. 18, 2014) An ICE detainer is a request addressed to a state or local law enforcement agency from ICE to maintain custody of a particular alien for no more than 48 hours so that federal officials may assume custody for the purpose of removal from the United States.
Under Governor O’Malley’s new directive, which is effective immediately, the Baltimore City Detention Center will honor ICE detainer requests only in cases in which an alien has been charged with or convicted of a felony, three or more misdemeanors, or a “serious” misdemeanor. (Baltimore Sun, Apr. 18, 2014) “We will focus our efforts on complying with ICE detainers when there is an actual threat to the public’s safety,” said O’Malley. (Washington Post, Apr. 18, 2014) O’Malley echoed the statement in a letter to Jeh Johnson, Secretary of the U.S. Department of Homeland Security, on the same day he announced his new directive: “I remain committed to doing everything possible to protect public safety in Maryland and stand willing to serve as a partner in a more targeted effort to enforce immigration law against serious offenders.”
ICE, however, sees O’Malley’s new directive as a threat to public safety and an obstacle to its priorities and objectives. “ICE’s priorities consist not only of criminal aliens but also priority targets, such as those with known gang affiliations, drunken-driving arrests and those who are fugitives or frequently try to game the immigration system,” said an ICE spokesman. (The Baltimore Sun, Feb. 11, 2014) In a letter to FAIR, Former ICE Director John Morton stated his opposition to anti-detainer policies and warned that jurisdictions that ignore ICE detainer requests, even for minor crimes, undermine public safety in their communities. He noted that his agency has documented serious crimes committed by deportable aliens who have been released rather than handed over to ICE.
Governor O’Malley’s new policy directive has been met with public criticism for deliberately impeding federal enforcement of immigration law and ignoring the interests of legal residents. “Certainly you want to target the most violent offenders, but you pick up offenders when they break the law, and if you’re illegal and breaking the law you should be deported,” said state Senator Richard Colburn, who represents part of Maryland’s Eastern Shore. (FOX Baltimore, Apr. 21, 2014) “[O’Malley’s directive] has nothing to do with public safety and everything to do with obstructing enforcement of immigration laws,” said Jessica M. Vaughan, from the Center for Immigration Studies. (Baltimore Sun, Apr. 18, 2014) “Marylanders should be outraged that Gov. O’Malley has put the interests of immigration scofflaws ahead of their legitimate interest in having immigration laws enforced, which protects jobs and public safety,” she commented. (Id.)
State Delegate Pat McDonough, who represents part of Baltimore and Harford Counties, opposes the policy in part because of its likelihood to draw more illegal aliens to Maryland. (Id.) “If I was an illegal alien, I would have to be either insane or stupid not to come to Maryland because I’m gonna be able to get a drivers’ license, I’m not gonna be detained, I’m not gonna be sought after. I’m gonna get school benefits. I’m gonna get medical benefits.” (Id.)
Pro-amnesty and open borders legislators attempted to push through similar legislation in the Maryland General Assembly this year, but failed. The Senate Judicial Proceedings Committee voted down Senate Bill 554 and the sponsor of House Bill 29, Delegate Ana Sol Gutierrez, withdrew her bill after the defeat of Senate Bill 554 to save face and avoid certain defeat.