Legislative Update: 4/4/2017

Broken Promise? Trump Still Hasn’t Ended DACA

By: Federal Government Relations

Throughout the 2016 campaign, President Donald Trump vowed to roll back President Obama’s unconstitutional Deferred Action for Childhood Arrivals (DACA) amnesty on his very first day. During a notable prime-time campaign speech in Arizona that focused exclusively on his immigration positions, President Trump said he would “immediately terminate President Obama’s illegal executive amnesty in which he defied federal law and the Constitution.” (Transcript of Trump Immigration Speech) Yet, more than two months into the Trump administration, the unlawful DACA program remains in effect as if President Obama was still in office.

Each day that the program is not ended sends a welcoming message to illegal aliens and signals to the American people that our government is not serious about enforcing our immigration laws. The DACA program—instituted in 2012— grants approximately 750,000 illegal aliens a reprieve from deportation, provides work authorization for two years, and makes certain illegal alien minors eligible for some taxpayer benefits. (See FAIR Legislative update, Jan, 24, 2017) According to the U.S. Citizenship and Immigration Services (USCIS), it is still accepting and processing DACA requests under the existing policy. In 2016, USCIS processed about 750 DACA applications and renewals each day. (See USCIS DACA Numbers, 2016)

Despite his firm commitment to repeal DACA during the campaign, President Trump and his administration have hesitated to revoke it. In January, White House Chief of Staff Reince Priebus, a long-time advocate for amnesty, said that President Trump will work with Congress to find a “solution” for illegal aliens who benefited from DACA, rather than immediately rescinding the unconstitutional amnesty program. (Fox News, Feb. 16, 2017) At his first presidential press conference, Trump sounded a different tune from the campaign, saying he was going to deal with DACA in a manner that “show[s] great heart” and that it was a “very, very difficult subject.” (Id.) Recently, in a closed-door meeting with Senate Democrats, Department of Homeland Security (DHS) Secretary John Kelly said, “I’m the best thing that happened to DACA – it is still on the books” and “I can guarantee you we’re not going after kids that are fully DACA qualified.” (Politico, Mar. 17, 2017) He reiterated this sentiment later, “We have not picked up — I don’t care what you read or people say — we have not in my time picked up someone who was covered by DACA.” (Congressional Quarterly, Mar.  29, 2017)

President Trump’s failure to end DACA is disappointing because it was a focal point of his campaign and a position that resonates with Americans. A Pulse Opinion Research poll commissioned by the Center for Immigration Studies just ahead of the election found that voters overwhelmingly want our immigration laws enforced. (See FAIR Legislative Update, Nov. 15, 2016) Specifically, the poll found that 56 percent of likely voters supported “causing illegal aliens to return to their home countries by penalizing employers, getting cooperation from local law enforcement, and denying welfare benefits” and 54 percent believed that there has been “too little effort placed on enforcing our immigration laws.” (Id.) A Zogby Analytics exit poll conducted on behalf of FAIR similarly found that American voters, including Hispanic Americans, want our immigration laws enforced. (See FAIR Legislative Update, Nov. 22, 2016)

While a draft executive order to repeal DACA has already been prepared, the administration has other tools at its disposal as well.  (See President Trump’s Executive Actions, Jan. 26, 2017) DHS Secretary Kelly can end the program simply by instructing USCIS to stop issuing work permits. (LA Times, Feb. 16, 2017) Another option is for Attorney General Jeff Sessions to direct Department of Justice (DOJ) lawyers to review the program. If the DOJ attorneys determine that DACA is not legal or that it is not a “responsible use of prosecutorial discretion” then DHS would be directed to stop issuing and renewing work permits.  (Id.) Finally, the states could file a lawsuit against the Obama administration’s expanded deportation priorities which the Trump administration could decide not to defend. (Id.)

FAIR President Dan Stein said, “However much people might empathize with the situation of DACA recipients, we must make it clear that the responsibility for their circumstances rests with the parents who knowingly violates our laws and put their children in this situation. In every other area of the law, we hold lawbreakers accountable for any negative consequences to family members, and immigration law should not be the exception.” (See Dan Stein’s Op-Ed Let the DACA Program Lapse, Feb. 21, 2017)

Trump Appeals Block of Revised Travel Freeze

By: Robert Law

Activist Federal District Judge Derrick Watson doubled down on his efforts to thwart President Trump’s legitimate executive power last week when he indefinitely extended his block of the revised travel freeze. On March 15, Judge Watson—an Obama appointee based in Hawaii—issued a nationwide temporary restraining order (TRO) preventing the Trump administration from imposing a 90-day freeze on admitting people from six countries that are hotbeds for terrorism and temporarily halting all refugee resettlement for 120 days. (FAIR Legislative Update, Mar. 21, 2017) That opinion was so politically motivated, Judge Watson even blocked the Trump administration’s attempt to reduce the refugee resettlement cap from 110,000 (Obama’s level) to 50,000 (historical level) despite immigration law giving the president plenary authority over refugee admissions. (Id.) Last Wednesday’s ruling was a procedural necessity to keep the block in place. Generally, a TRO is only valid for 14 days so Judge Watson essentially transformed the TRO into a preliminary injunction to indefinitely extend the block. (See The Hill, Mar. 29, 2017) The effect of the preliminary injunction is to prevent the Trump administration from imposing the travel freeze until the issue is litigated on the merits.

The next day after Judge Watson continued to inappropriately make policy from the bench instead of interpret the law, the Justice Department (DOJ) announced it is appealing the order. “The Department of Justice strongly disagrees with the federal district court’s ruling. The president’s executive order falls squarely within his lawful authority in seeking to protect our nation’s security,” DOJ charged in a statement. (Law360, Mar. 30, 2017) Unfortunately, the appeal goes to the Ninth Circuit, the same appeals court that upheld the block of the original travel freeze. In that ruling, a three judge panel created new law to rule against the original executive order and failed to cite a single immigration statute in its 29-page opinion. (See FAIR Legislative Update, Feb. 14, 2017) Separately, DOJ is appealing a narrower block of the executive order (just the 90-day travel freeze) imposed by a Maryland federal judge. (See Politico, Mar. 30, 2017; FAIR Legislative Update, Mar. 21, 2017) That appeal will go before the Fourth Circuit which is considerably less liberal than the Ninth Circuit. Eventually the cases are expected to reach the U.S. Supreme Court.

Stay tuned to FAIR and IRLI as details emerge…

Lawmakers Urge Appropriators to Block Sanctuary City Funding

By: RJ Hauman

In a letter to appropriators who oversee Department of Homeland Security (DHS) and Justice Department funding, a group of over 30 lawmakers led by Rep. Paul Gosar (R-AZ), urged that their Fiscal Year 2018 spending bills include language that prohibits funds from going to sanctuary city jurisdictions. (Gosar Letter to Appropriators, April 4, 2017) “The concept of sanctuary city policies is in direct opposition to the Rule of Law,” the letter reads. (Id.) “A nation of laws must enforce established law, not seek ways to skirt enforcement. Sanctuary cities defy federal immigration laws by harboring untold numbers of illegal immigrants and providing safe havens for criminals, many of whom are violent offenders.” (Id.)

Specifically, the requested language would prohibit the use of funds made available by the FY 2018 appropriations bills for DHS and Commerce, Justice, Science, and Related Agencies from being used to provide financial assistance to state or local jurisdictions that are not in compliance with existing federal law. Section 1373 of Title 8 U.S. Code prohibits sanctuary policies that impede cooperation between federal, state, and local officials when it comes to the sending, requesting, maintaining, or exchanging of information regarding immigration status. Under that statute, any federal, state, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from the federal government, information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

The lawmakers’ request comes only a short time after two high school students, who recently entered the country illegally, were charged with brutally raping a 14-year-old girl in a bathroom at a high school in Maryland. (See FAIR Legislative Update, Mar. 28, 2017) Despite this horrific atrocity, the Maryland House of Delegates responded by passing a sanctuary measure to prohibit law enforcement from cooperating with federal immigration officials, effectively shielding illegal aliens who commit crimes. (Id.) As states and localities continue to double down on protecting dangerous criminal aliens rather than their own citizens, preventable crimes will continue to occur. By denying important funding in appropriations bills, the House can address this critical public safety problem and send a clear message to sanctuary city jurisdictions that their dangerous policies are unacceptable.

FAIR supports Rep. Gosar’s efforts and will soon be submitting a similar request on behalf of the organization.

Georgia Passes Anti-Sanctuary Campus Bill

By State & Local Government Relations

The Georgia General Assembly passed a measure last week to prohibit universities and colleges that implement sanctuary policies from receiving state funding. (Atlanta Journal-Constitution, Mar. 28, 2017) Sanctuary policies are often designed to shield criminal aliens from the enforcement of immigration law by prohibiting cooperation with federal officials. The Senate voted 37 to 2 on Tuesday to pass House Bill (HB) 37, after it was voted 112 to 57 in the House of Representatives last month.

HB 37 specifically prohibits private colleges and universities in the state from instituting any policy, rule, or practice that prohibits or restricts employees from communicating or cooperating with federal immigration officials or law enforcement officers. (HB 37) Federal law already prohibits policies that stop public employees from communicating immigration status information with the federal government. (8 § U.S.C. 1373) HB 37 goes further by providing that protection to employees of private institutions of higher education. (HB 37)

“If you’re not willing to follow the law, if you’re not willing to enable the enforcement of the law … then state funds are not going to follow you,” commented Representative Earl Ehrhart, sponsor of HB 37. (Atlanta Journal-Constitution, Mar. 13, 2017) “If you want to claim sanctuary status, which effectively ignores any statutory construction, then we as a state are going to say that’s not acceptable. You, as a private institution, can make that choice.” (Id.)

Georgia Governor Nathan Deal must sign HB 37 before it can become law. Lawmakers in at least 24 other states this year have responded to public outrage against sanctuary policies and introduced legislation to ban them in their states. FAIR encourages its members to contact their lawmakers to stress the importance of enacting anti-sanctuary legislation.