Legislative Update: 6/25/2014
Under Pressure, President Obama Cobbles Together Response to Border Crisis
On Friday afternoon, the White House announced a plan to address the exploding number of unaccompanied Central American minors entering illegally into the United States. (DHS website readout, June 20, 2014; see also White House fact sheet, June 20, 2014; White House press briefing, June 20, 2014) The Obama Administration will add detention facilities, judges, asylum officers, and immigration attorneys (to represent the illegal aliens). (Id.) It also plans to pay Central American countries to help them repatriate their own nationals. (Id.)
In particular, after long ignoring the problem, the Department of Homeland Security (DHS) is rushing to open more detention centers for families with children. Currently there is only one detention facility in the country, located in Berks County, Pennsylvania, for housing families with children. (Los Angeles Times, June 20, 2014) However, the Berks County facility can only hold a mere 96 aliens. (Id.; Associated Press, June 20, 2014) DHS had additional family detention space at the Hutto Detention Facility near Austin, Texas (which had about 400 beds), but stopped housing families there after open borders groups such as the ACLU complained that conditions were not appropriate for minors. In 2012, when DHS began to see a marked increase in the number of illegal alien minors crossing the border, it announced it would seek bids to build a new family detention center in Texas. (Id.) However, DHS also scrapped that plan when open borders groups objected to detaining illegal alien family members. (San Antonio Express-News, Feb. 7, 2012; Associated Press, June 20, 2014)
Detention space is critical to immigration enforcement because many individuals who are simply given notices to appear at a later date in court ignore them and choose to stay illegally in the U.S. In fact, the Department of Justice reported that 33% of immigrants released in such cases in fiscal year 2013 failed to appear for subsequent hearings, up from 24% in 2009. (Los Angeles Times, June 20, 2014) Currently, because there is no family detention space, the Border Patrol has been releasing them without bond, allowing them to travel to relatives living in the United States with only an order to appear in immigration court for deportation hearings. (New York Times, June 20, 2014)
Now, acting as if it is responding aggressively to the problem, DHS announced on Friday that it will establish a temporary facility for adults with children on the Federal Law Enforcement Training Center’s Artesia, New Mexico campus. (DHS website readout, June 20, 2014) This facility, which currently serves as a training center for Border Patrol agents, will now house approximately 700 illegal aliens. (Associated Press, June 20, 2014)
Until DHS is able to find more detention space, the administration plans to expand the use of monitoring devices, such as electronic ankle bracelets, to keep track of migrants after they are released. In addition, DHS will reassign immigration judges on an emergency basis to hear asylum petitions and other cases of migrants in detention. (DHS website readout, June 20, 2014; see also White House fact sheet, June 20, 2014; White House press briefing, June 20, 2014; New York Times, June 20, 2014)
Immigration officers and judges will also be reassigned on an emergency basis to speed cases in the Rio Grande Valley of Texas, where most of the illegal migrants are entering into the United States.
While the Administration has proposed these modest, arguably late, actions on Friday, the White House says it currently has no plans to deploy the National Guard to help the Border Patrol. (White House press briefing, June 20, 2014; but see Boehner letter to Obama, June 20, 2014; see also Washington Times, June 20, 2014) Earlier that day, Speaker John Boehner sent a letter demanding that President Obama deploy the National Guard to address the border crisis. (See Boehner letter to Obama, June 20, 2014) Boehner’s call for Obama to utilize the National Guard came one week after Representative Candice Miller (R-MI), Vice Chair of the House Homeland Security Committee, made a similar request. (See Miller statement, June 13, 2014) On Monday, Congressman Steve Palazzo (R-MS) added his support to the call to deploy the National Guard, characterizing Obama as “in over his head on immigration.” (See Palazzo press release, June 23, 2014)
The Ready Reserve of the National Guard is a militia that the President may deploy during a national emergency. (See 10 U.S.C. § 12302) Eight years ago, President George W. Bush deployed 6,000 National Guard troops to assist the Border Patrol along the U.S.-Mexico border, a move that was initially supported by Senate leadership, including then-Minority Leader Harry Reid (D-NV). (See CNN, May 16, 2006) Currently, only approximately 300 National Guard members staff the border today, and their duties are limited to nighttime air patrols via helicopter. (See Associated Press, June 15, 2014)
Importantly, Boehner’s letter not only called for the President to deploy the National Guard, it pointed to President Obama’s failure to enforce our immigration laws as the cause of the border crisis. (See Boehner letter to Obama, June 20, 2014). He wrote, “[t]he policies of your administration have directly resulted in the belief by these immigrants that once they reach U.S. soil, they will be able to stay here indefinitely.” (Id.; see also Politico, June 20, 2014)
In contrast, Obama Administration officials denied that the President’s immigration policies like Deferred Action for Childhood Arrivals (DACA) caused the border crisis. (White House fact sheet, June 20, 2014; see also White House press briefing, June 20, 2014) A White House fact sheet issued shortly after Boehner released his letter emphasized that the Administration had a “strong existing record of enforcement and removal.” (White House fact sheet, June 20, 2014) Furthermore, Vice President Biden, in a visit to Central America last week, claimed that the “root causes of this immigration… [are] … poverty, insecurity and the lack of the rule of law” in Central America. (Associated Press, June 20, 2014)
Boehner’s correspondence was one of several letters from Members of Congress expressing concern about the influx of unaccompanied alien children. Senate Appropriations Committee Republicans and Republican House Committee chairs also sent joint or individual letters inquiring about the Administration’s response to the border crisis. (See Senate Appropriations Committee Republicans letter, June 17, 2014; House Republican Committee Chair letter, June 19, 2014; Goodlatte letter, June 19, 2014; Sensenbrenner letter, June 19, 2014). Senators Ted Cruz (R-TX) and John Cornyn (R-TX), as well as Henry Cuellar (D-TX), Randy Neugebauer (R-TX), Mike Conaway (R-TX) and Mac Thornberry (R-TX) also wrote to the Administration, indicating that many unaccompanied minors are crossing into their home state of Texas. (See Cruz letter, June 19, 2014; Cornyn/Cuellar letter, June 19, 2014; Neugebauer/Conaway/Thornberry letter, June 20, 2014)
Texas Initiates Law Enforcement Surge Along Southern Border
Due to the failure of the Obama Administration to secure the Southern border, Texas Gov. Rick Perry is sending state law enforcement officers to the Texas-Mexico border. In a letter to Texas Department of Public Safety (DPS) Director Steven McCraw, Gov. Perry, Lt. Gov. David Dewhurst, and Speaker Joe Straus ordered McCraw to “execute a surge operation of increased law enforcement” along the Southern border in response to the flood of unaccompanied alien minors illegally crossing the border into Texas. (Letter to McCraw, June 18, 2014) “Texas can’t afford to wait for Washington to act on this crisis and we will not sit idly by while the safety and security of our citizens are threatened,” Perry said. (Governor Perry Press Release, June 18, 2014) “Until the federal government recognizes the danger it’s putting our citizens in by its inaction to secure the border, Texas law enforcement must do everything they can to keep our citizens and communities safe.” (Id.)
While DPS will immediately start deploying officers to the border, they are limited in what they can do because border security is the responsibility of the Federal government. DPS spokesman Tom Vinger said the agency will work around the clock “to deter and disrupt drug and human trafficking and other border-related crimes” but noted that “DPS does not have the authority to enforce immigration laws.” (See ksat.com, June 19, 2014) Instead, when DPS troopers encounter someone “who is admittedly or suspected to be in the country illegally, that individual is immediately referred to the appropriate federal authorities.” (Id.)
The fiscal burden on Texas taxpayers for this effort to secure the border is substantial. Governor Perry’s letter authorized DPS Director McCraw to “utilize all existing appropriated funds” for the surge operation and noted that the legislature will have to address the full cost with their next funding bill. (Letter to McCraw, June 18, 2014) Indeed, Speaker Straus estimates the cost of the enforcement surge at $1.3 million per week through the end of the year. (ksat.com, June 19, 2014) “We’re looking at $350 million out of the state budget on something that is not a state responsibility,” Straus declared. (Id.) Strauss also indicated that a special legislative session for border security — which Texans had petitioned Perry for — is “highly doubtful” now that Perry has ordered the border surge. (Id.; see breitbart.com, June 16, 2014)
The day after initiating the enforcement surge, a frustrated Perry blasted the Obama Administration’s failure to secure the border during a Christian Science Monitor event in Washington, D.C. “This unaccompanied alien children issue has the potential to be an absolute catastrophe — a humanitarian catastrophe,” Perry said. (Daily Caller, June 19, 2014) Perry added that he is “deeply frustrated and disappointed” with the Obama Administration and called securing the border “the single most important thing they must do.” (Id.) Subsequently, Perry sent a letter to Obama inviting him to visit the border and requesting the deployment of 1000 National Guard troops. (See The Hill, June 20, 2014)
Communities Nationwide Struggle to Absorb Illegal Alien Minors
The massive influx of illegal alien minors across the Southern Border is now beginning to strain communities nationwide as the federal government attempts to settle them within the U.S. instead of immediately sending them home.
The number of illegal alien minors apprehended at the border is growing exponentially. In fact, the number apprehended in 2014 to-date has more than doubled since 2012, when President Obama announced his Deferred Action for Childhood Arrivals program (DACA). (calculations based on Customs and Border Patrol statistics, June 15, 2014) Now, tens of thousands of minors from Central America are crossing illegally into the U.S. in the hope that they will be allowed to stay, even if they are not technically eligible for DACA. (See, e.g., Associated Press, June 22, 2014; Los Angeles Times, June 21, 2014) The numbers of minors pouring in from Central America has grown so dramatically that between 2009 and 2014, the proportion of minors from Central America apprehended at the southern border has risen from 17 percent to 76 percent of the total apprehended. (calculations based on Customs and Border Patrol statistics, June 15, 2014)
In addition to DACA, the government’s process for handling illegal alien minors from Central America provides another incentive for these minors illegally cross the border. Under federal law, the government must put alien minors from non-contiguous countries, such as El Salvador, Guatemala, and Honduras, into formal removal proceedings instead of immediately transporting them back over the border, as the law permits for Mexican minors. (Trafficking Victims Protection Reauthorization Act of 2008, P. Law. 110-457, Sec. 235, Dec. 23, 2008; Congressional Research Service, Unaccompanied Alien Children: Overview, p. 5, June 13, 2014) This means the government issues the alien child a piece of paper telling him to appear in court and transports him, generally within 72 hours, to the Department of Health and Human Service’s Office of Refugee Resettlement (HHS ORR). (Id. at 8)
HHS ORR then arranges to house the alien minors either in foster care or in one of its shelters, which, depending on the circumstances, may be anywhere in the country. (Id.) According to HHS ORR, the majority of the minors are cared for through a network of state-licensed, federally-funded care providers that provide education, mental health and medical services, case management, and recreation. (Id.) These providers also facilitate the release of these alien minors to family members — whether or not the family members are illegally present in the country.
However, with the number of illegal alien minors surging, ORR is now scrambling to find shelters. Last, week, federal officials canceled plans to relocate several hundred illegal alien minors in Lawrenceville, Virginia, a small farming community with 1,500 residents. (Associated Press, June 19, 2014) Initially, ORR planned to settle the illegal aliens in a closed down community college, but kept local leaders in the dark. In fact, local officials only learned of the news a few days before the minors were scheduled to arrive. When they demanded a public meeting on the issue, half a dozen ORR officials heard loud objections from the more than 1,000 residents in attendance. (Washington Times, June 19, 2014) The residents raised concerns about security, disease, impact on overburdened emergency services and tax dollars going to the illegal alien minors instead of local families living in poverty. (Id.)
Federal officials also canceled plans to house a stunning 9,500 illegal alien minors in Baltimore, Maryland. HHS ORR had hoped to use a vacant warehouse once used by the Social Security Administration. (Associated Press, June 12, 2014) However, influential lawmakers, including Mayor Stephanie Rawlings Blake and U.S. Senators Barbara Mikulski (D-MD) and Ben Cardin (D-MD) opposed the plan, saying the warehouse was not suitable for housing the minors. (Id.)
Federal officials also canceled plans to house thousands of illegal alien minors to the small town of Olympia Fields in Illinois. (NBC Chicago; June 23, 2014; Illinois Review, June 21, 2014) But there, too, federal officials are facing a backlash. Over the weekend, Congressman Randy Hultgren (R-IL) called on the government to quickly return the illegal aliens, not make matters worse for the children by creating orphanages even farther away from their homes. “They should be returned to their home countries quickly and with human dignity, not left to languish in legal limbo.” (Id.)
In fact, the need to house illegal alien minors has become so dire, HHS ORR is housing them at military bases. Two years ago, when the numbers first began to spike, the Department of Defense (DOD) opened Lackland Air Force Base in San Antonio, Texas to house about 200 illegal alien minors. (New York Times, Apr. 28, 2014) At that time, federal officials promised use of the base was only a temporary measure and that it would only be open for 60 days. (Id.) Now Lackland has once again re-opened its doors to illegal alien minors and is at capacity, housing about 1,200 minors. (San Antonio Express-News, May 16, 2014; New York Times, June 2, 2014) In addition, the military has opened Naval Base Ventura County near Los Angeles to host about 600 illegal alien minors. (CNN, June 13, 2014) But at a combined capacity of less than 2,000 beds and a projected surge of 90,000 illegal alien minors crossing the border this year alone, using military bases to house these minors is having only a small impact. (See USA Today, June 13, 2014)
Meanwhile, communities that are accepting the illegal alien minors are doing so at a cost. Last week, the Miami-Dade School Board publicly warned that an influx of needy children could create a financial crisis. (Miami Herald, June 18, 2014) School board members agreed to request more money from the federal government to handle the sudden spike of foreign-born children. “We may be on the verge of a potential crisis,” said School Superintendent Alberto Carvalho said. (Id.) Educating these students, he said, costs on average about $2,000 more per child than what the state allocates in funding, hitting local taxpayers. (Id.) School Board Chairwoman Perla Tabares Hantman added, “As a public school system, the reality is there’s a financial cost to educating newly arrived students which goes above and beyond the typical [state] funding provided.” It is only fair “that the taxpayers of Miami-Dade County aren’t unduly burdened as a result of federal immigration policies.” (Id.)
Rather than getting control of the situation, the federal government is already projecting that the crisis surrounding illegal alien minors will grow. This year, Congress has appropriated about $2 billion of taxpayer dollars — most of which will go to HHS — to settle these illegal alien minors inside of the U.S. (See FAIR Legislative Update, June 18, 2014) HHS projects even more money will be needed in 2015. (Id.) Meanwhile, the government is pulling Border Patrol and ICE agents off of their normal duties to process these aliens near the border.
New GOP House Leadership No Improvement on Immigration
After House Majority Leader Eric Cantor’s (R-VA) surprise primary loss on June 10 to David Brat, who made immigration the central issue of the campaign, House Republicans chose Rep. Kevin McCarthy (R-CA) as their new majority leader last Thursday. (FAIR Legislative Update, Jun. 18, 2014; Politico, Jun. 19, 2014) The elections also determined that Rep. Steve Scalise (R-LA), current chairman of the Republican Study Committee, a group of conservative House Republicans, will replace Rep. McCarthy as Majority Whip, the third ranking position in House leadership, when McCarthy is elevated to Majority Leader at the end of July. (Politico, Jun. 19, 2014; nola.com, Jun. 19, 2014; see also Republican Study Committee website)
Unfortunately, Rep. McCarthy, whose district is heavily agricultural and approximately one-third Hispanic, supports amnesty. (Los Angeles Times, June 23, 2014) In January, he endorsed the leadership’s immigration principles, which included granting amnesty and increasing legal immigration. (FAIR Legislative Update, Feb. 5, 2014; Roll Call, Feb. 25, 2014) Shortly in advance the principles’ release Rep. McCarthy affirmed his personal support for granting legal status to illegal aliens to a local news station in his district. (Bakersfield Now, Jan. 22, 2014) He explained: “that’s a decision that every Republican will have to make in laying out the principles, but that’s my personal position.” (Id.)
The immigration position of the new Majority Whip, Rep. Steve Scalise, is less clear. He expressed opposition to the Senate Bill after it was passed saying, “our broken immigration system won’t be fixed until we first secure our border and start fixing the broken parts of our legal immigration system.” (nola.com, July 19, 2013) In addition, last February he indicated he did not support the House GOP leadership’s immigration principles. (Roll Call, Feb. 25, 2014) However, it is unclear whether he then opposed the stance of the House leadership on principle or on timing. In April, he said that the “president has proven he’s not willing to enforce the laws on the books in a fair and equal way, and that’s really poisoned the waters on a lot of issues — and immigration is clearly one of them.” (New York Times, Apr. 29, 2014) His website currently indicates that he wants “to first seal the United States’ borders with stronger security and enforcement of existing laws,” and that he has co-sponsored legislation that would make English the official language of the United States and legislation that would end birthright citizenship. (See Rep Scalise website)
Although Reps. McCarthy and Scalise have moved up in the ranks of House Republicans, how they plan to approach immigration in the House is still a question. In one of his first interviews after being elected House Majority Leader, Rep. McCarthy’s words suggested he had studied Eric Cantor’s loss closely. “I don’t believe there should be citizenship,” said McCarthy. ”I believe in the rule of law. I believe there’s an opportunity. But if you don’t secure the borders, there’s nothing. Until we secure the borders, because the borders are not secure, we’re not enforcing the laws. And I think that’s a reasonable position. Until that’s secure, you can’t have an immigration debate.” (Fox News Sunday (video and transcript), June 22, 2014)
65% of Americans Disapprove of Obama on Immigration
According to a Gallup poll released last Friday, 65 percent of Americans disapprove of President Obama’s handing of immigration, and only 31 percent approve. (Gallup, Jun. 20, 2014) The poll interviewed a sample of 1,027 adults by telephone, including non-voters and non-citizens, and was conducted June 5-8, 2014. (Id.) The President’s low approval rating on immigration is the lowest Gallup has found since 2010, when it was 29 percent. His disapproval rating is the highest Gallup has ever recorded. (Id.; Politico, Jun. 20, 2014)
The President’s approval on immigration varies widely by party affiliation, with 8% of Republicans, 25% of Independents, and 60% of Democrats indicating approval, though it has dropped among all parties since last August when the Senate Bill was passed. (Gallup, Jun. 20, 2014) The poll was conducted as media outlets have paid increasing amounts of attention to the rising flood of unaccompanied minors crossing the border and the role the President’s policies have played in encouraging it. (See FAIR Legislative Update, Jun. 11, 2014; New York Times, Jun. 4, 2014)
New York Bill Granting ‘State Citizenship’ to Illegal Aliens Dies
Senate Bill “S.B.” 7879, known as the “New York is Home Act,” died on June 19 when New York Legislature closed its 2014 session without a floor vote on the measure. (S.B. 7879 Status) S.B. 7879, which was introduced in the New York Assembly, is a sweeping attempt to circumvent federal law by granting illegal aliens eligibility to obtain “New York State Citizen” status, access to virtually every state public benefit available in New York, and by creating impediments against the enforcement of immigration law. (Bloomberg Businessweek, Jun. 16, 2014)
To become a “New York State Citizen” under S.B. 7879, an illegal alien must take an oath to uphold New York’s constitution and laws and pledge his or her willingness to serve on a jury before the Office of New Americans. (S.B. 7879 § 275) While S.B. 7879 requires an alien to demonstrate that he or she has paid state taxes for three years, the bill includes a host of exceptions to get around this requirement. (Id. at § 275-B) For example, an illegal alien who has never paid taxes but claims to be unemployed or a primary caregiver to a child is exempt and still eligible for “state citizenship” status. (Id.)
In addition, S.B. 7879 grants illegal aliens who obtain “state citizenship” with identification cards, driver’s licenses, professional licenses, access to state Medicaid coverage, access to taxpayer-funded scholarships and financial aid, and identification numbers to be used as substitutions for social security numbers. (Id. at §§ 9-36, 49-51) An illegal alien who has obtained “state citizenship” will also be entitled to vote in all state and local elections and will be eligible to hold public office. (Id. at §§ 4-5)
Moreover, S.B. 7879 impedes federal enforcement of immigration law by severely restricting cooperation between state and local law enforcement with federal immigration officials. (S.B. 7879 § 71-B) S.B. 7879 prevents New York law enforcement from granting federal immigration officials access to any person in their custody or access to any facility owned or operated by the state. (Id.) The bill also severely limits New York law enforcement’s ability to comply with detainer requests or respond to inquiries from federal immigration officials, and provides illegal aliens who have obtained “state citizenship” with protection under New York’s discrimination laws. (Id. at §§ 37-45, 71-B)
Senator Gustavo Rivera, sponsor of S.B. 7879, introduced the bill three days before the end of the legislative session, acknowledging that the bill “certainly will not pass this session.” (Bloomberg Businessweek, Jun. 16, 2014) Senator Rivera indicated that he hopes the ideas in the bill will spread to states like California, Illinois and Texas. (Fox News, Jun. 16, 2014) “Obviously this is not something that’s going to pass immediately, but nothing as broad as this or as bold as this passes immediately,” said Senator Gustavo Rivera. (New York Daily News, Jun. 15, 2014)
While the New York is Home Act is dead for 2014, its authors are expected to re-introduce the bill in 2015. This will hopefully provide lawmakers the time to study and truly understand the stunning scope of the bill. No other state has introduced legislation to provide such a broad package of benefits to illegal aliens, who lack any legal right to work or remain in the United States. Illegal immigration already costs New York taxpayers an estimated $9.5 billion a year. (FAIR Cost Study) The benefits included within S.B. 7879 would be sure to add millions, if not billions, more on to that tab.
S.B. 7879 is therefore certain to face strong resistance by true immigration reformers. In fact, over 85% of people polled claiming opposition to the idea of granting “state citizenship” to illegal aliens. (NJ 101.5, Jun. 18, 2014) Professor Theodore Ruthizer, who teaches at Columbia Law School in New York City, opposes S.B. 7879 and described the legislation as a “horrible idea.” (Bloomberg Businessweek, Jun. 16, 2014) Ruthizer explained, “Citizenship should not be watered down and should not be rendered meaningless.” (Id.)
Governor Andrew Cuomo has not yet indicated whether he supports the bill. (Bloomberg Businessweek, Jun. 16, 2014)