Legislative Update: 6/06/2017

Supreme Court Fast Tracks Trump’s Petition on Travel Freeze Case

By: Liz Jacobs

The Supreme Court is expediting its consideration of President Trump’s revised Executive Order regarding national security, the Court announced on June 2. (Fox News, Jun. 2, 2017) Implementation of the March 6 executive order has been put on hold following a Maryland federal district court’s decision to block of one of the order’s key provisions after open borders advocates filed legal challenges. The Fourth Circuit ruled last month to uphold the district court’s block.

The Department of Justice (DOJ) filed a petition to review the Fourth Circuit decision on June 1. (Breitbart, Jun. 3, 2017) The Supreme Court responded to the petition by making an uncommon decision to speed up the litigation by ordering the plaintiffs to submit their response by June 12. (Id.) This deadline is weeks before a response would have been required under the Court’s traditional rule. (Id.) The Court may vote on whether to take the case anytime thereafter, and it may also order expedited briefing on the merits. (Id.)

President Trump issued the executive order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” to ensure foreign nationals are properly vetted before they enter the country. This order is a revision of President Trump’s original security order that was stalled because of a Ninth Circuit Court of Appeals ruling upholding an activist judge’s temporary restraining order. (FAIR Legislative Update, Mar. 7, 2017; See FAIR Legislative Update, Feb. 14, 2017)

Plaintiffs are challenging the provision of the executive order that imposes a temporary freeze on entry by individuals from six countries that are hotbeds for terrorism. (President Trump’s National Security Executive Order, Mar. 6, 2017; FAIR Legislative Update, Mar. 7, 2017) The freeze limits foreign national’s entry into the U.S. for 90 days from the following countries: Iran, Syria, Libya, Somalia, Yemen, and Sudan. (Id.) Importantly, the revised order makes clear that the travel freeze only applies to individuals who “do not have a valid visa on the effective date of this order” and expressly does not apply to green card holders (lawful permanent residents) or anyone with dual citizenship with one of the six nations, among a number of other exemptions. (Id.)

The Ninth Circuit is concurrently considering the legal issues posed by the same order, but has not yet issued a ruling. (CNN, May 15, 2017) In addition to considering the provisions limited travel from the six countries, the Ninth Circuit case will be reviewing the 120-day temporary suspension of the U.S. Refugee Admissions Program. If the Ninth Circuit decides soon, its decision would likely also receive expedited review in the Supreme Court. 

FOIA Reveals Obama Administration Released Hundreds of Illegal Alien Sex Offenders

By: Shari Rendall

A Freedom of Information Act (FOIA) request by the Immigration Reform Law Institute (IRLI), the legal arm of the Federation for American Immigration Reform (FAIR), revealed the Obama administration released 564 illegal aliens convicted of sex crimes back into American communities in fiscal year 2015. (Washington Examiner, May 19, 2017) The FOIA data showed 194 criminal aliens convicted of sexual assault, 95 convicted for a commercialized sexual offense, and 275 for “other sexual offenses.” (Id.)

The Obama administration routinely claimed its top priority was public safety and that enforcement efforts were focused on the removal of criminal aliens. Yet, the information obtained by IRLI’s FOIA request belies that claim. According to the information provided by the U.S. Immigration and Customs Enforcement agency (ICE) in the FOIA, 218 criminal aliens were granted bond by an immigration judge and 12 were released as the result of prosecutorial discretion.  (Id.) In these 230 cases, the Obama administration would have had discretion in their removal.  

The FOIA also showed that 151 criminal aliens were released back onto the streets because their countries of origin refused to repatriate them. (Id.) Pursuant to the Supreme Court’s ruling in Zadvydas v. Davis, convicted criminal aliens who have completed their sentences cannot be detained indefinitely if their country of origin refuses repatriation. (See FAIR Legislative Update, July 19, 2016) Under current law, the State Department can retaliate against these countries by withholding visas until they are cooperative. (See INA § 243(d), 8 U.S.C. § 1253(d); see FAIR Legislative Update, July 19, 2016) President Trump has vowed to go after these recalcitrant countries that refuse to take back their criminal aliens. (See Trump Executive Order, Jan. 25, 2017) He has made progress in this area, as the number of recalcitrant countries has already dropped from 20 to 12 under his presidency. (Washington Times, May 16, 2017)

Senator Seeks Review of Tax Credit Payments to Illegal Aliens

By: RJ Hauman

Last week, Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-WI) sent a letter to Treasury Secretary Steven Mnuchin asking him to examine the Internal Revenue Service’s (IRS) failure to prevent fraudulent overpayments of the Additional Child Tax Credit (ACTC) to illegal aliens. (Johnson Press Release and Letter, June 1, 2017) The Wisconsin Republican’s letter arrives shortly after President Trump submitted his Fiscal Year 2018 budget request to Congress, which seeks to ensure that only people authorized to work in the United States receive tax credits, including the ACTC. (Daily Caller, May 23, 2017)

Under Commissioner John Koskinen—an embattled holdover from the Obama administration—the IRS has allowed a filer to use an Individual Taxpayer Identification Number (ITIN), rather than a Social Security Number (SSN), to claim the ACTC. (Johnson Press Release and Letter, June 1, 2017) “Although federal law makes illegal aliens ineligible for any public benefit, the IRS’s refusal to require SSNs for the ACTC allows illegal aliens to receive fraudulent ACTC payments,” Johnson wrote in the letter. (Id.) He also noted that the IRS’s own inspector general has warned that this policy leaves the ACTC vulnerable to fraudulent overpayments. (Id.) “During a recent Committee hearing, Inspector General George testified that the IRS does not sufficiently identify potentially fraudulent behavior and fails to adequately address the fraud with existing authorities.” (Id.)

According to Johnson, one method to reduce fraudulent ACTC payments is to require an SSN. (Id.) “The Treasury Department ought to review the IRS’s refusal and consider requiring that any filer claiming the ACTC in the next tax season prove their identity using an SSN,” he wrote. (Id.) “The IRS’s failure to remedy this vulnerability on its own accord not only continues to cost taxpayers billions of dollars every year, but also provides an incentive for illegal immigration into the country.” (Id.) In fact, the Treasury Inspector General for Tax Administration (TIGTA) estimated that in 2015 alone, approximately $5.7 billion in taxpayer dollars were paid to illegal aliens through the ACTC.  (See TIGTA Report, April 27, 2016; FAIR Legislative Update, June 7, 2016) 

The Treasury Department has until June 9 to brief the committee’s staff on ACTC fraud.

Illinois Sends Sanctuary Bill to Governor’s Desk

By: Shari Rendall

On the last day of its legislative session, the Illinois legislature sent Governor Bruce Rauner (R) a bill that would tie the hands of law enforcement and significantly undermine federal immigration enforcement in the state. (See ImmigrationReform.com, May 30, 2017) The so-called “Trust Act,” S.B. 31, significantly restricts immigration officials’ ability to detain and deport illegal aliens, even if convicted of a crime. (Breitbart, May 10, 2017)

The “Trust Act” drastically undercuts what actions law enforcement officials may take. Specifically, this sanctuary measure prohibits them from inquiring about the citizenship or immigration status of any individual they encounter, which hampers their ability to cooperate in immigration enforcement matters. (S.B. 31) It also stops law enforcement from arresting, searching, or detaining any person based on their immigration status, detainer, or an administrative warrant that may be issued by the federal government. (Id.) Additionally, the “Trust Act” precludes law enforcement from entering into any agreement or program with federal officials for training or participation in immigration enforcement, including the 287(g) program. (Id.)

Outrageously, S.B. 31 also prohibits law enforcement officials from participating in any immigration enforcement whatsoever. An immigration agent cannot use law enforcement facilities or equipment (including electronic databases) for interviews or investigative purposes. (Id.) Law enforcement cannot transfer an alien into an immigration agent’s custody nor respond to an immigration agent’s inquiries regarding the alien’s incarceration status, release date, or contact information. (Id.) The bill also provides that no person shall be denied bail solely based on an immigration detainer or an administrative warrant. (Id.) Finally, the “Trust Act” also prohibits officials from arresting criminal aliens in state-funded facilities including schools, licensed day-care center, hospitals, health clinics, and the courts.

Opponents of the S.B. 31 are concerned that interfering with federal immigration enforcement could pose a national security risk and encourages lawlessness in the state. (Chicago Tribune, May 4, 2017) This bill does not make communities in Illinois safer, rather it protects those who are breaking the law.  Senator Tim Bivins (R-45), a former police officer, said the bill would be a “law to tell law enforcement not to enforce the law.” (Id.)

Governor Rauner, who is running for re-election, has not spoken on the “Trust Act.” He has 60 days to decide whether he will sign it. If enacted, SB 31 will make Illinois the fourth sanctuary state in the country, joining Oregon, California, and Connecticut.