Legislative Update: 4/25/2017
DACA Deported After Breaking Immigration Laws Again
By: Robert Law
The Department of Homeland Security (DHS) deported a Deferred Action for Childhood Arrivals (DACA) illegal alien two months ago—believed to be the first enforcement action taken against a recipient of President Obama’s unconstitutional amnesty program. DHS has confirmed that in February it returned Juan Manual Montes, a 23-year old illegal alien DACA recipient, to his home country of Mexico in February after catching him climbing over the border fence in Calexico, California. (Washington Examiner, Apr. 19, 2017) In a Spanish-language interview while detained, Montes admitted under oath to the Border Patrol to illegally entering the country. (Id.)
Montes’s decision to leave the U.S., allegedly to visit a girlfriend, violated the terms of DACA. According to U.S. Citizenship and Immigration Services (USCIS), the DHS component that administers the unlawful program, DACA may only leave the country if granted advance parole. (USCIS DACA Guidelines) Advance parole is an administratively created tool that allows an illegal alien to leave the U.S. with a promise of being “paroled” back into the country upon return. (See FAIR Legislative Update, July 26, 2016) USCIS guidelines are clear that leaving without advance parole will nullify DACA status. “If you travel outside the United State on or after August 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.” (USCIS DACA Guidelines)(emphasis added) According to DHS, “Mr. Montes lost his DACA status when he left the United States without advance parole on an unknown date prior to his arrest by the U.S. Border Patrol on Feb. 19, 2017.” (Washington Examiner, Apr. 19, 2017)
While amnesty advocates predictably cry foul, details are emerging that cast doubt on Montes’s eligibility for DACA in the first place. When President Obama unlawfully created DACA in 2012, one of the criteria for the amnesty program was having “continuously resided in the United States since June 15, 2007.” (USCIS DACA Guidelines) Montes claims to have been living in the U.S. unlawfully since the age of nine (approximately 2003), which, if true, would satisfy that prong of DACA eligibility. (Washington Examiner, Apr. 19, 2017) However, Customs and Border Protection (CBP) refute that claim, saying they encountered Montes in 2010 when he illegally crossed the border. (Washington Examiner, Apr. 19, 2017) Rather than face detention and removal proceedings before an immigration judge, Montes opted to be promptly returned to Mexico through a process called expedited removal. (Id.) The Obama administration’s approval of Montes’s DACA initial application and then renewal despite his being ineligible is further proof that USCIS blindly approved nearly every application without properly examining each case, as they claimed they did.
Even though DACA are not an enforcement priority of the Trump administration, Attorney General Jeff Sessions defended the removal on Montes. During a Fox News interview with Jenna Lee, Sessions reiterated that “Everybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported – well, they are.” (Fox News, Apr. 19, 2017)
By: RJ Hauman
President Donald Trump began to back away yesterday from demanding that funding for a border wall be included in the massive spending bill Congress is preparing to fund the government for the remainder of Fiscal Year 2017. (Fox News, Apr. 25, 2017) Speaking to conservative news outlets during a reception at the White House, Trump did not give up on his plan to get Congress to fund the wall, one of the biggest priorities during his successful 2016 campaign. (Id.) However, he said he would accept a delay of that fight until the fall, according to conservative reporters who were present. (Id.) This represents a significant shift from the White House, as Budget Director Mick Mulvaney insisted over the weekend that funding for the wall must be included in the spending bill. (Wall Street Journal, Apr. 23, 2017)
In March, the White House asked Congress for $1.4 billion in funding to begin wall construction during the current fiscal year, with an additional $2.6 billion for the next fiscal year, beginning Oct. 1. (Wall Street Journal, Apr. 23, 2017; see FAIR Legislative Update, Mar. 21, 2017) At the time, administration officials said the FY2017 money would pay for approximately 48 miles of new border and levee wall systems, and 14 miles of replacement fencing, as well as some technology improvements and access road construction. (Wall Street Journal, Apr. 23, 2017) Without these funds included in the spending bill, the administration’s only option until the end of the fiscal year is to reprogram funding within general Department of Homeland Security (DHS) appropriations to begin construction. (DHS 90-Day Progress Report on Border Security, Apr. 25, 2017) However, it is unlikely that DHS will be able to obtain much more than the $20 million they received through a March reprogramming request to develop wall prototypes. (Id.)
With border wall funding seemingly off the table, it remains to be seen whether the administration will still try to address dangerous sanctuary city jurisdictions in the must-pass spending bill. (Associated Press, Apr. 21, 2017) In a recent offer to negotiators, Mulvaney included a provision to give the administration greater latitude to deny certain federal grants to sanctuary city jurisdictions that prohibit law enforcement from cooperating with federal immigration officials. (Id.)
Lawmakers hope to unveil the catchall spending bill this week, as it must be passed by midnight Friday to keep the government from shutting down. (New York Times, Apr. 20, 2017) Since Democratic votes are needed to pass whatever bill emerges, Senate Democrats wield a significant amount of leverage in negotiations. Senate Minority Leader Chuck Schumer (D-NY)—after repeatedly insisting that funding for the wall was a “non-starter”—welcomed Trump’s shift on a signature campaign promise. (Fox News, Apr. 25, 2017) "It's good for the country that President Trump is taking the wall off the table in these negotiations," Schumer said late yesterday. (Id.) "Now the bipartisan and bicameral negotiators can continue working on the outstanding issues." (Id.)
Stay tuned to FAIR as budget negotiations continue…
By: Shari Rendall
Last week President Trump signed his “Buy American and Hire American” executive order that directs government departments to review guest worker programs and implement changes that favor American workers over cheap foreign labor. (See President Trump Executive Order, Apr. 18, 2017) The executive order also seeks to reform how H-1B visas are awarded, calling on federal agencies to suggest changes to the programs to ensure jobs go to the most-skilled or highest-paid applicants. (Id.) This will replace the current lottery system that distributes H-1Bs by luck rather than going to the strongest foreign tech workers.
Congress created the H-1B visa program in 1990 to allow U.S. employers to hire foreign workers, purportedly on a “temporary” basis, for “specialty occupations.” The visa is most commonly associated with “high skilled” jobs, namely those in the science, technology, engineering, and mathematics (STEM) fields. (Immigration and Nationality Act (INA) § 101(a)(H)(15)) Current policy caps H-1B visas at 85,000 (65,000 foreign workers and an additional 20,000 to those with graduate degrees) awarded randomly through a lottery system when applications exceed the cap. Additionally, an unlimited number of H-1B visas are available for foreign workers in academia and other non-profit fields.
In his speech announcing the Buy American and Hire American executive order, President Trump signaled his intent to end the lottery saying, “Right now, H-1B visas are awarded in a totally random lottery – and that's wrong. Instead, they should be given to the most-skilled and highest-paid applicants, and they should never, ever be used to replace Americans. No one can compete with American workers when they're given a fair and level playing field, which has not happened for decades.” (See President Trump’s Remarks, Apr. 18, 2017)
The H-1B law was written in a way that appears to provide protections for American workers by requiring companies to pay H-1B workers the “prevailing wage” for their job and not adversely affect the working conditions of “similarly employed” American workers.” (See INA § 212(n)(1))(emphasis added) However, these protections are misleading because of the way Congress defined the “prevailing wage.” According to the statute, the “prevailing wage” is calculated using a governmental survey that provides “at least four levels of wages commensurate with experience, education, and the level of supervision.” (INA § 212(p)(4)) This language allows the employer to determine the prevailing wage based on the position description rather than the H-1B worker’s actual skill level. Therefore, employers can legally replace Americans with cheaper foreign workers by claiming the H-1B position is different from the displaced American worker’s (regardless of actual job responsibilities) and not in violation of the “similarly employed” provision. Furthermore, these same statutes allow employers to hire H-1Bs instead of hiring Americans. (See FAIR Legislative Update, Oct. 18, 2016) In fact, according to the White House press office, “about 80 percent of H-1B workers are paid less than the median wage in their fields. Only about 5 to 6 percent, depending on the year, of H-1B workers command the highest wage tier recognized by the Department of Labor.” (See White House Background Briefing, Apr. 17, 2017)
While President Trump used his executive authority to protect American workers and address problems in the H-1B visa program that he could constitutionally fix, Congress needs to take legislative action for true reform. Senate Judiciary Chairman Chuck Grassley (R-IA), while highlighting his legislation to reform the H-1B program, said, “I’m grateful that President Trump has taken my suggestions to heart by taking steps today to protect American workers and preserve limited H-1B visas for truly qualified, high-skilled foreign workers.” (See Grassley Press Release, Apr. 18, 2017)
By: State & Local Government Relations
The Chicago City Council passed a measure on Wednesday to create a municipal identification card for illegal aliens. (Chicago Sun Times, Apr. 13, 2017) Ordinance 02017-1950 makes all residents, regardless of immigration status, eligible to receive a city ID card and will allow illegal aliens access to taxpayer-funded city services and other benefits. (Ord. 02017-1950) Mayor Rahm Emmanuel allocated $1 million in his budget to implement the program, but total costs are expected to exceed $3 million. (Chicagoist, Apr. 19, 2017)
Mayor Emmanuel introduced the municipal ID program as a part of his package of initiatives created to shield illegal aliens from federal immigration enforcement efforts. (FAIR Legislative Update, Oct. 18, 2016) The city amped up its sanctuary status after the election of President Donald Trump and his repeated promises to heighten enforcement of immigration law. Mayor Emmanuel reaffirmed the city’s intent to maintain their sanctuary policy earlier this year, despite warnings from federal officials that cities that violate federal immigration law may lose federal funding. (FAIR Legislative Update, Nov. 22, 2016)
Mayor Emmanuel assured illegal aliens that the city will implement the program in a manner consistent with the city’s intentions to shield them from federal immigration enforcement efforts. (Chicago Sun Times, Apr. 19, 2017) Specifically, Mayor Emmanuel promised illegal aliens that the city will not retain documentation containing applicants’ personal information. (Id.) “As soon as we get the information, we erase it,” he said. (Id.) The ordinance itself also requires the City Clerk to keep all information submitted by applicants for the ID confidential to the “maximum extent permitted by law.” (Ord. 02017-1950)
Opponents to the ID program fear the city’s refusal to maintain documentation will facilitate identity fraud among applicants. The Ordinance requires all city departments to accept the ID card as valid proof of identity and residency, despite accepting unsecure documentation, like consular identification cards, as a proof of identity. (Ord. 02017-1950) Consular cards are not reliable forms of identification because they can be obtained with easily forgeable documents. (FAIR Issue Brief, Nov. 2016) Consular cards also do not meet minimum standards necessary for use by the federal law and many state laws. (Id.)
Accordingly, the municipal ID cannot be used to prove identity to the federal government. Without requiring proof of a social security number or lawful presence in the United States, the ID card will not meet minimal standards set under the federal REAL ID Act to be accepted for federal purposes, including entering a federal building or boarding an airplane, when implemented.
Alderman Anthony Beale was one of four council members that opposed the measure. (Chicago Sun Times, Apr. 19, 2017) “We’re talking about spending close to $3 million on this process–and that’s low-balling. I can think of three million other things to do with $3 million, instead of creating a municipal ID,” Beale said. (Id.) “I still believe this is the jurisdiction of the state and federal government. Municipal ID’s should not be administered by cities. The state and the federal government do a good job of doing that.” (Id.)
Chicago is one of a handful of cities implementing municipal ID programs to appease the illegal alien lobby. Indeed, identification cards help illegal aliens residing in the region escape the enforcement of immigration law. By giving illegal aliens documentation to produce to law enforcement, officers are discouraged from contacting federal immigration authorities to verify the true identity of the individual. Without such engagement, federal immigration officials often do not have an opportunity to initiate enforcement actions against potentially deportable aliens.