Legislative Update: 4/28/2015
DHS Grants DACA to Illegal Alien Charged with Murder
Last Friday, U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez admitted the agency had granted DACA to Emmanuel Jesus Rangel Hernandez, an illegal alien now charged with the murder of four, even though a federal crime database indicated he was a gang member. (Letter to Chairman Grassley, Apr. 17, 2015; FoxNews.com, Apr. 22, 2015; see FAIR Legislative Update, Mar. 3, 2015) Rodriguez admitted the gross error in response to inquiries made by Senate Judiciary Chairman Chuck Grassley (R-IA) and Senator Thom Tillis (R-NC) about USCIS’ approvals of gang-affiliated DACA applicants. The murders with which Rodriguez is charged took place in Senator Tillis’ hometown. (See FAIR Legislative Update, Mar. 24, 2015; Letter to Johnson, Mar. 20, 2015)
In his letter to the Senators, Director Rodriguez also confirmed that Mr. Rangel Hernandez was already in removal proceedings when he applied for DACA in January 2013 because he had been arrested in 2012 for drug possession. (Letter to Chairman Grassley, Apr. 17, 2015) But despite the drug charge and his documented gang affiliation, USCIS approved his DACA application. (Id.) His deportation proceedings were closed. (Id.) Rodriguez conceded USCIS should have checked the database and should not have approved his application. (Id.)
Director Rodriguez also stated USCIS had recently conducted a query of all approved DACA cases in the same federal database to discover gang affiliations and found 49 individuals with records in the database indicating “known or suspected” gang affiliation. (Id.) Twenty of these, he said, had records indicating gang affiliation at the time their applications were approved, another 13 had records entered after being approved for DACA, and one had a record entered during the DACA adjudication process. These cases, Rodriguez said, “are being reviewed.” (Id.) Fifteen were vetted and determined not to be gang members. (Id.) Moreover, he claimed, approvals of known gang members and gang affiliates were “in error.” (Id.) He noted that an increasing number of DACA applications have been denied because of gang-affiliation: 28 in FY 2013; 131 in FY 2014; and 123 in FY 2015. (Id.)
Senator Grassley blasted USCIS for its careless administration of DACA. (Grassley Press Release, Apr. 21, 2015) He said Rodriguez’s letter “confirms” his fear that USCIS’s review of DACA applications is wholly inadequate to protect public safety. (Id.) “It’s no secret,” he said, “that USCIS staff is under intense pressure to approve every DACA application that comes across their desk.” (Id.) Senator Tillis agreed. He said that “USCIS needs to immediately start performing detailed criminal background checks” to prevent tragedies like the murders in his own state from occurring in the future.
DHS Secretary Won’t Confirm or Deny Presence of ISIS Activities on Southern Border
At a press conference last Friday, Homeland Security Secretary Jeh Johnson would not confirm or deny recent reports of ISIS operations just across the border from El Paso, Texas. The report of ISIS activities came from the non-profit Judicial Watch, which cited Mexican federal officials as its source. (See Judicialwatch.org, Apr. 14, 2015) According to those Mexican federal officials, the ISIS base is about eight miles from the U.S. border in an area known as “Anapra,” just west of Ciudad Juárez. Judicial Watch also reported another ISIS cell to the west of Ciudad Juárez, in Puerto Palomas.
However, ten days after these reports, Jeh Johnson — Secretary of the Department of Homeland Security for the United States of America — would not confirm or deny the existence of ISIS operatives along the U.S.-Mexico border. At a press briefing at DHS headquarters, Johnson merely told reporters he did not “have anything to confirm or really comment in any intelligent way” about the reports. (DHS FY 2015 Six Month Border Security Update, Apr. 24, 2015; C-span.org, Apr. 24, 2015; BGOV Transcript, Apr. 27, 2015; see Judicialwatch.org, Apr. 14, 2015)
Secretary Johnson’s press briefing was also notable for his comments that Secure Communities actually impeded his ability to enforce federal immigration laws. In reality, however, since its inception in 2008, Secure Communities has been tremendously successful. It has identified tens of thousands of criminal aliens by comparing fingerprints of individuals booked into state and local jails and flagging those who are deportable aliens. (See FAIR Legislative Update, Nov. 24, 2014; Secure Communities) (Id.) Once identified, ICE could issue detainers for the aliens they intended to deport and collect them while they were still in custody rather than having jails release those individuals onto the streets. (See FAIR Legislative Update, Mar. 31, 2015)
Indeed, less than a year ago, Secretary Johnson voiced his support for Secure Communities. On the PBS News Hour in May 2014, Johnson said, “In my judgment, Secure Communities should be an efficient way to work with state and local law enforcement to reach the removal priorities that we have, those who are convicted of something.” (PBS News Hour transcript, May 15, 2014)
Since then Secretary Johnson has done an about face. Despite the success of Secure Communities, DHS halted the program as part of President Obama’s executive amnesty announced in November 2014. (Id.; FAIR Legislative Update, Apr. 21, 2015; FAIR Legislative Update, Nov. 24, 2014) In his press briefing Friday, Johnson claimed the reason for scrapping Secure Communities was because the program was “politically and legally controversial” and that many local jurisdictions were not cooperating with it. (BGOV Transcript, Apr. 27, 2015) This situation, he said, was a “huge barrier to our interior enforcement” and was becoming “a bigger and bigger problem in terms of our ability to get at the criminals.” (Id.)
However, instead of continuing to go after criminal aliens and forcing states and local jurisdictions to cooperate by withholding grant funds, Secretary Johnson chose another option. DHS has now replaced Secure Communities with the “Priority Enforcement Program,” which identifies and works to remove only convicted criminals in federal prisons and stopped issuing detainers in most cases. (FAIR Legislative Update, Apr. 21, 2015; FAIR Legislative Update, Nov. 24, 2014) But at the press briefing Friday, Secretary Johnson still insisted that the Obama Administration indeed wants “to get at the criminals.” (DHS FY 2015 Six Month Border Security Update, Apr. 24, 2015; C-span.org, Apr. 24, 2015; BGOV Transcript, Apr. 27, 2015)
Obama Administration Program Allows Illegal Aliens to Bring in Relatives from Central America
During a Senate hearing last Thursday, officials from the Obama Administration confirmed that a new Central American “refugee” program allows illegal alien beneficiaries of the President’s executive amnesty to bring in illegal aliens from Central America. The admission came from Associate Director for Refugee, Asylum, and International Relations at U.S. Citizenship and Immigration Services (USCIS), Joseph Langlois, who testified that illegal aliens receiving deferred action under DACA or DAPA were eligible to sponsor alien relatives through the program. (BGOV Transcript, Apr. 24, 2015) This and other revelations surfaced as true immigration reformer Senator Jeff Sessions (R-AL) held his second hearing as Chairman of the Senate Judiciary Subcommittee on Immigration and the National Interest: “Eroding the Law and Diverting Taxpayer Resources: An Examination of the Administration’s Central American Minors Refugee/Parole Program.” (See Senate Hearing, Apr. 23, 2015; for background on the program, see FAIR Legislative Update, Feb. 18, 2015; FAIR Legislative Update, Nov. 18, 2014; and FAIR Legislative Update, Jul. 29, 2014)
In addition to broad eligibility for the program, the hearing demonstrated that this “refugee” program for illegal aliens distorts both the legal definition of a refugee and the legal definition of a parolee. (Id.) First, Chairman Sessions offered new evidence that the Obama Administration has unilaterally changed the definition of a “refugee.” Sessions explained that the Immigration and Nationality Act (INA) defines a refugee as “a person who has experienced persecution or who has a well-founded fear of future persecution ‘on account of race, religion, nationality, membership in a particular social group, or political opinion.” (Id.) He then showed Mr. Langlois a USCIS document called “Update on New and Novel PSGS,” which changed that standard. (Id; see USCIS Update, Apr. 15, 2015) This document, Sen. Sessions revealed, creates two entirely new definitions of a refugee: 1) a person who reports a serious gang related crime, and 2) a female head of household. (BGOV Transcript, Apr. 24, 2015) When Sen. Sessions asked Mr. Langlois if that was not a “different standard,” Mr. Langlois denied that he had seen the USCIS guidance and said that the definition of a “particular social group” was an “evolving area of the law.” (Id.)
However, Professor Jan Ting, a former Assistant Commissioner of the Immigration and Naturalization Service, testified why this new standard was inappropriate. (Id.) Ting explained that when the “international community” inserted “social group” into international refugee law, they meant groups that had immutable characteristics other than race, religion or political beliefs which led to their persecution, including groups persecuted by the Nazis such as gypsies or GLBT individuals. (Id.) Congress, he said, was thinking about these types of groups when it enacted the Refugee Act of 1980 that codified the standard. (Id.)
Second, the hearing made clear that the Central American Minor program is abusing the statutory definition of “parole”. (Id.) Because the number of refugees in America are limited, Sen. Sessions said, he believed the Administration would likely “shift as many [applicants to the program] as they humanly can shift” to parolee status instead of refugee status. (Id.) However federal law, Sen. Sessions explained, allows the federal government only to use “temporary” parole of individuals on a “case-by-case basis” for “urgent humanitarian reasons” or “significant public benefit.” (Id.; for more on the distortion of statutory parole, see FAIR Legislative Update, Nov. 18, 2014) To grant parole under this program, USCIS must find only that the applicant “is at risk of harm in his or her country” and “meets a favorable exercise of discretion.” (BGOV Transcript, Apr. 24, 2015)
Mr. Langlois, however, insisted that the program’s standard was not a “more liberal” standard than the statutory definition. (Id.) He said, “a significant public benefit” is “achieved” by “attempting to deter the mass migration that we saw at the border last year.” (Id.) His answer apparently glosses over the fact that if the significant public benefit depends on thousands of people participating in a program, it self-evidently does not meet the definition of a “case-by-case” public benefit since by that light, there is no public benefit to the acceptance of any individual.
Mr. Langlois also tried unsuccessfully to justify the program by saying that there are “numerous precedent parole/refugee programs” in the past “very similar” to this one. (Id.) Asked by Sen. Sessions to name them, he could only point to the “Orderly Departure Program” of the 1980’s that attempted to stem a mass migration from Vietnam. (Id.) This program, he said, used “public interest parole,” resulted in “stemming the flow of boat people” from Vietnam, and was a “very large” program that “lasted many years.” (Id.) However, Professor Ting pointed out, programs in response to the Vietnam War, which even at the time were “controversial,” can no longer be used as a precedent because Congress responded to those executive actions by narrowing the law. (Id.) He believed that Congress thought such programs were “a misuse of the parole power,” and in 1980 with the Refugee Act clarified that parole should not be used for refugees. (Id.) Then, in 1996, he said, Congress changed and limited the parole law again, at that point creating the standard that parole must be used “only on a case-by-case” basis for “urgent humanitarian reasons or significant public benefit.” (Id.) Furthermore, he said, “the House Judiciary Committee” was “very specific” about why it was changing the law, saying parole should be granted only for “specified urgent humanitarian reasons such as life-threatening medical emergencies,” or “specified public interest reasons such as assisting the government in its law-enforcement-related activity.” (Id.)
Third, the hearing demonstrated that, besides being unlawful, this refugee program could well be detrimental to public safety. (Id.) Despite Administration claims of background checks for applicants, Simon Henshaw, the Principal Deputy Assistant Secretary of State of the Bureau of Population, Refugees, and Migration, admitted that the countries involved do not have good “fingerprint database systems” like the U.S. (Id.) Mr. Langlois said each applicant would be “interviewed for two hours” and checked in FBI and Department of Defense databases. (Id.) Senator Sessions, however, objected that the FBI and Department of Defense do not have such databases in Central America, and that the average applicant will be able to learn the right “words to say” to the interviewing officer. (Id.) He pointed out that, realistically, the program officers will not be carrying out truly effective measures to screen for criminals such as “neighborhood investigation” and interviewing witnesses. (Id.)
Finally, the hearing demonstrated that the refugee program likely will be very costly to the taxpayer. (Id.) Aside from any upfront costs of travel and resettlement for those approved for such benefits, Sen. Sessions pointed out that individuals in the program will have access to the full array of public benefits. (Id.) Mr. Henshaw agreed that the beneficiaries of the program, once in the U.S., will be able to apply for every kind of benefit program, such as Medicaid, public housing, food stamps, cash assistance, that any other legal resident could apply for. (Id.)
Senate Confirms Amnesty Supporting Attorney General
On Thursday, the Senate confirmed Loretta Lynch to become the next Attorney General — the nation’s highest law enforcement position — despite her professed support for President Obama’s amnesty agenda. During her January confirmation hearing before the Senate Judiciary Committee, Ms. Lynch took the radical position that illegal aliens have the “right” to work “regardless of how they came here” — a position that is contrary to current law — and she said President Obama’s executive amnesty is “legal and constitutional.” (FAIR Legislative Update, Feb. 3, 2015)
Yet, Ms. Lynch was able to be confirmed because of a coalition of all Senate Democrats and several pro-amnesty Republicans. With unanimous Democratic support, Lynch only needed at least four Republicans to vote for her because Harry Reid invoked the “nuclear option” last Congress, lowering the threshold for nominees from 60 votes to a simple majority. After Sens. Lindsey Graham (R-SC), Orrin Hatch (R-UT), Susan Collins (R-ME), Jeff Flake (R-AZ), and Mark Kirk (R-IL) — all of whom voted for the Senate mass guest worker amnesty bill — announced their support for Lynch, her nomination was inevitable. Accordingly, the Senate voted 66-34 to end debate on the Lynch nomination, known as a cloture vote. (Roll Call Vote #164) Reportedly, Majority Leader Mitch McConnell (R-KY), whipped his members to ensure she received at least 60 votes, because, according to Senate rules, if she received less than 60, any one senator could have forced a debate over whether to undo Sen. Reid’s nuclear option. (The Hill, Apr. 23, 2015)
Rubio Peddles Same Amnesty Plan
Last Sunday, Sen. Marco Rubio (R-FL) sat down for an interview with CBS’s “Face the Nation” to lay out his agenda should he win the presidency in 2016. Despite seeing his poll numbers plummet in 2013 as a leader of the Gang of Eight mass guest worker amnesty bill, Rubio is doubling down on his support of amnesty in his bid for the White House. (See FAIR Legislative Update, May 20, 2013)
The core component of Rubio’s immigration “reform” outline consists of putting the 12 million illegal aliens in the country on a path to citizenship. (Video of the interview available here) According to Rubio, the criteria for amnesty consist of (1) living in the country unlawfully for at least a decade; (2) passing a background check; (3) learning English; (4) paying taxes; and (5) paying a fine. (CBS Face the Nation Transcript, Apr. 19, 2015) Illegal aliens who meet this criteria will receive a work permit and “after a substantial period of time in that status, assuming they haven’t violated any of the conditions of that status, they would be allowed to apply for legal residency [green card]. Just like anybody else would,” Rubio said. (Id.)(emphasis added) “It’s a long process. It’s a reasonable process. It’s a fair process…,” Rubio claimed. (Id.)
Rubio’s plan also includes typical elements of “comprehensive immigration reform”: increased legal immigration and cursory promises of enforcement. Regarding enforcement, Rubio vaguely called for E-Verify, entry-exit (though no mention of it being biometric as required by current law), and “improved” border security (with no mention of completing the double layer fence already required by current law). (Id.) Despite providing no details, Rubio called these “serious enforcement measures.” (Id.) Additionally, Rubio said he wanted to “modernize” legal immigration by making it “less family based” and “more merit-based,” which typically means increasing employment-based green cards rather than reducing the number of family-based green cards issued each year. (Id.)
Separately, Rubio revealed he will not end President Obama’s Deferred Action for Childhood Arrivals (DACA) amnesty program. In a Spanish-language interview with Univision’s Jorge Ramos, Rubio said, “I believe DACA is important. It can’t be terminated from one moment to the next, because there are already people benefiting from it.” (See Breitbart News, Apr. 17, 2015; Grabien English Translation) “I think everyone prefers immigration reform,” he continued. (Id.) After Rubio’s team disputed the translation, Breitbart News contacted Rubio spokesman Alex Conant, asking “he is saying on day one as president, he will not lift that executive action even though it’s illegal and unconstitutional. He will allow those people to have that status until there is a immigration reform [bill] — that’s what he’s saying, right?” (Breitbart News, Apr. 19, 2015) Conant responded, “He’s always said he’s never wanted to deport kids who were brought here by no fault of their own, have grown up in America and consider themselves Americans but aren’t because of the way their parents or guardians brought them here at a young age.” (Id.)
Although Rubio is posturing his immigration platform as a new idea, it is actually the same amnesty first, enforcement later (if ever) approach he’s been championing for years. Indeed, passing background checks to bar criminal aliens, paying back taxes, and learning English were supposedly criteria in S. 744 but in fact, the Gang of Eight lied about all of those requirements. (See FAIR Legislative Update, Apr. 29, 2013) Additionally, Rubio’s outline is nearly identical to the amnesty plan he laid out in January 2013 before the Gang of Eight introduced the mass guest worker amnesty bill. (See FAIR Legislative Update, Jan. 22, 2013)
While polls continue to show voters want a GOP presidential candidate who supports immigration enforcement, Rubio is trumpeting amnesty in order to garner campaign cash from major GOP donors. (See Investor’s Business Daily, Apr. 22, 2015; buzzfeed.com, Apr. 22, 2015; FAIR Legislative Update, Feb. 24, 2015)
Governor Scott Walker Advocates for Cuts in Legal immigration
Last week, Republican Governor Scott Walker from Wisconsin, an emerging 2016 Presidential contender, shared his developing views on the issue of American legal immigration and needed reform. (Brietbart.com, Apr. 20, 2015)
Speaking on Glenn Beck’s radio show last week, Governor Walker stated:
“In terms of legal immigration, how we need to approach that going forward is saying, we will make adjustments…the next president and the next Congress need to make decisions about a legal immigration system that is based on, first and foremost, on protecting American workers and American wages. Because the more I’ve talked to folks-I’ve talked to Senator Sessions and others out there, but it is a fundamentally lost issue by many in elected positions today…what is this doing to wages, and we need to have that be at the forefront of our discussion going forward.” (Id.)
Not long before Governor Walker disclosed that he was consulting on immigration policy with true immigration reformer Senator Jeff Sessions (R-AL), the Senator published an important op-ed on the topic in the Washington Post on April 9th, 2015 along very similar lines. (Washington Post, Apr. 9, 2015) The Senator wrote:
“Each year, the United States adds another million mostly low-wage permanent legal immigrants who can work, draw benefits, and become voting citizens. Legal immigration is the primary source of low-wage immigration in the United States… If no immigration curbs are enacted, the Census Bureau estimates that another 14 million immigrants will come to the United States between now and 2025… It is not mainstream, but extreme, to continue surging immigration beyond any historical precedent and to do so at a time when almost 1 in 4 American ages 25 to 54 does not have a job. What we need now is immigration moderation: slowing the pace of new arrivals so that wages can rise, welfare rolls can shrink and the forces of assimilation can knit us all more closely together.” (Id.)
Speaking on Saturday’s “Fox and Friends Weekend” show, Governor Walker responded to criticism that he supports limiting legal immigration, noting that “we are a country of immigrants, but we are also a country of laws. We should be looking out for the American worker in everything we do.” (Foxnews.com, Apr. 25, 2015)
Tennessee House Defeats Bill Granting In-State Tuition to Illegal Aliens
Legislation that would make illegal alien students eligible for in-state tuition at Tennessee’s public colleges and universities failed this session because of its lack of support among constituents and within the Tennessee General Assembly. On Wednesday, the Tennessee House of Representatives killed Senate Bill (“S.B.”) 612, which would have provided illegal aliens with taxpayer-funded in-state tuition rates as long as the illegal alien has resided in the state for at least one year. SB 612 passed the Senate earlier in the week, but failed to obtain the 50 votes it needed in the House before the legislature adjourned for the year. House Bill (“H.B.”) 675, a near identical bill, never made it to a vote in either the House or Senate before the conclusion of the legislative session on Wednesday.
Though the Tennessee General Assembly rejected similar bills last year, debate regarding in-state tuition for illegal aliens intensified in this year’s legislative session following the announcement of President Obama’s executive amnesty. (Associated Press, Mar. 24, 2014; Legislative Update, April 2, 2014) The President’s amnesty, if implemented, extends deferred action eligibility to a greater number of illegal aliens under the administration’s Deferred Action for Childhood Arrivals (“DACA”) and newly created Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) programs, and provides protection from enforcement of immigration law to millions of illegal aliens. (Legislative Update, Nov. 24, 2014)
Strain on Tennessee’s higher education system, which has been suffering a budget crisis in recent years due to the weakened economy, also fueled resistance against S.B. 612 and H.B. 675. Between 2008 and 2013, state fiscal support for Tennessee’s higher education system decreased by 30.1 percent, despite increases in enrollment. (Center on Budget and Policy Priorities, Mar. 19, 2013) During this period, Tennessee’s public colleges and universities were forced to increase tuition on average by more than 30.1%, eliminate hundreds of staff positions, and freeze hiring and staff salaries. (Id.) As a result of these budget cuts and annual tuition hikes, Tennessee’s college graduates possess unacceptably high education-related debt, carrying an average of $21,775. (Institute for College Access & Success, Nov. 2014) Tennessee is steadily climbing the ranks in the nation in regards to proportion of students in debt, with 46% of students relying on loans to fund their education in 2009 to 58% in 2012. (Id.)
Tennessee Representative David Alexander opposed S.B. 612 because of the high cost it would impose on the state’s higher education system. (Tennessean, Apr. 22, 2015) “These individuals that we’re talking about have no lawful status…it is not a pathway to citizenship until you begin that process,” said Rep. David Alexander. (Id.)
Although Tennessee’s legislative session officially adjourned on Wednesday, supporters of S.B. 612 are pushing the House Calendar and Rules Committee to vote to send the bill back to the full House for another vote. (Id.) The House of Representatives’ rules allow the Committee to revive a bill for a vote up to seven days after the end of the session with a two-thirds vote. (Id.) If the Committee does not revive S.B. 612 by Wednesday, April 29, legislators will be unable to revisit the topic until the General Assembly reconvenes in January 2016.