Legislative Update: 6/28/2016

SCOTUS Takes Away Obama’s Pen: Executive Amnesty Injunction Upheld

The Supreme Court dealt a major setback to President Obama’s executive amnesty agenda when it split 4-4 in U.S. v. Texas. The tied vote in the 26 state lawsuit challenging Deferred Action for Parents of Americans (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA) means the Fifth Circuit’s injunction stays in place while the case returns to Judge Hanen to be litigated on the merits. (See FAIR Legislative Update, Apr. 19, 2016) Accordingly, the President is prohibited from issuing work authorization to the estimated 5 million illegal aliens who would qualify for DAPA and expanded DACA. As is custom in the rare instance of a split vote, the high court does not include an analysis with the verdict. The entire verdict merely says, “The judgment is affirmed by an equally divided Court.” (U.S. v. Texas, No. 15-674, June 23, 2016) Last Thursday’s ruling now marks the fifth time the Obama administration has lost in court defending DAPA and expanded DACA: twice before Judge Hanen, twice before the Fifth Circuit, and now before the Supreme Court. (See FAIR Legislative Update, Nov. 17, 2015)

It is important to point out that the original DACA program President Obama unilaterally instituted back in 2012 ahead of his reelection campaign is unaffected by the Supreme Court’s ruling because it was not part of the U.S. v. Texas lawsuit. Therefore, certain illegal aliens can still receive renewable two-year reprieves from deportation and work authorization who:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the U.S. before reaching their 16th birthday;
3. Have continuously resided in the U.S. since June 15, 2007;
4. Have been physically present in the U.S. on June 15, 2012, and at the time of application;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety; and
8. Are at least 15 years old at the time of application.

(See FAIR Legislative Update, June 19, 2012; DACA Guidelines) According to U.S. Citizenship and Immigration Services (USCIS), the agency responsible for processing the executive amnesty applications, over 800,000 illegal aliens have had their DACA applications approved through the second quarter of Fiscal Year 2016. (USCIS DACA Data) The data also show that fewer than 50,000 initial DACA applications have been rejected, which amounts to only five percent of the 868,615 applicants received. (Id.)

FAIR and its legal affiliate the Immigration Reform Law Institute (IRLI) praised the Court’s decision. “This split decision upholds the rule of law and helps preserve the balance of power in the United States. It should stop the Obama lawless power grab,” said Dan Stein, FAIR’s president. (FAIR Press Release, June 23, 2016) “By ruling in favor of the federal court’s injunction, half of the nation’s Supreme Court Justices have shown that they have deep concerns about this president’s attempt at a power grab by his efforts to amend federal laws from the Oval Office.” (Id.) IRLI’s Executive Director Dale Wilcox added, “We are pleased with the Supreme Court’s decision to halt the Obama Administration’s amnesty plans and we’re honored to have had the opportunity to contribute toward that victory. Congress never intended for the President to dismantle our carefully-crafted immigration laws by declaring mass amnesty, giving out work permits en masse, and then claim he could never be challenged in court.” (IRLI Press Release, June 23, 2016)

Predictably, President Obama criticized the Court’s ruling. “Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system,” Obama complained during a press briefing shortly after the verdict came out. (Politico, June 23, 2016) “I think it is heartbreaking for the millions of immigrants who’ve made their lives here.” (Id.) Hillary Clinton, the presumptive Democratic presidential nominee who also has pledged to go further than Obama in executive amnesty, attempted to downplay the significance of the ruling. “Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the President’s legal authority,” Clinton claimed. (Id.)

UAMs and Family Unit Border Surge Continues Undeterred

New statistics from U.S. Customs and Border Protection (CBP) reveal that the surge of unaccompanied alien minors (UAMs) and family units crossing the southwest border is continuing undeterred. (See CBP Apprehension Statistics) The statistics, released last week, show that 5,669 UAMs — many coming from Central America — were apprehended crossing the southwest border in May. (MRC, June 17, 2016) Additionally, some 6,788 family units were apprehended during the same time period. (Id.) Overall, the total number of all illegal alien apprehensions at the southwest border so far in FY 2016 is up roughly 19 percent from FY 2015 numbers during the same time period. (Id.) CBP reported catching 2,231 more illegal aliens in May than they did in April, which until last month was the record-holder for monthly apprehensions so far in FY2016. (Id.)

In a press release announcing the new statistics, CBP touted that Department of Homeland Security (DHS) Secretary Jeh Johnson recently visited Central America to reiterate that America’s borders are not open to illegal migration. (See CBP Apprehension Statistics) However, the actions of the Obama administration say otherwise, as they have repeatedly refused to actually address the underlying causes of the illegal migration from Central America, notably the fact that UAMs and family units who cross the border know they will get to stay in the U.S. once they arrive. Specifically, once Central American UAMs and family units are apprehended at the border, they receive papers setting court dates and are then released into the U.S. (FAIR Legislative Update, Dec. 1, 2015) These documents are known as “notices to appear,” but illegal aliens refer to them as “permisos,” or free passes, because they give permission to stay in the country while they await their appearance in already backlogged immigration courts. (Id.) Testifying before a Senate Homeland Security and Governmental Affairs Committee hearing late last year, Chris Cabrera of the National Border Patrol Council stated that “[these documents] are now known as the ‘notice to disappear’ — 80 percent, 90 percent of those folks will not show up for that hearing.” (See Cabrera Testimony, Oct. 21, 2015; FAIR Legislative Update, Oct. 27, 2015) The decisive solution to the crisis at the border, according to Cabrera, is for illegal border crossers to be “detained, adjudicated, and repatriated.” (Cabrera Testimony, Oct. 21, 2015)

Supreme Court to Review Detention for Illegal Aliens

Last Monday, the Supreme Court agreed to hear Jennings v. Rodriguez, a case that will decide whether thousands of illegal aliens who have been held for deportation for longer than six months are entitled to hearings that could lead to their release on bond. (Los Angeles Times, June 20, 2016) Jennings is a class action lawsuit representing about a thousand illegal aliens in California who had been locked up for longer than six months without a bond hearing. (Washington Post, June 20, 2016) At issue before the Supreme Court is (1) whether illegal aliens, including those with criminal terrorist convictions, who are subject to mandatory detention must be given a bond hearing if their detention lasts more than six months, (2) whether these aliens must be released if the government fails to demonstrate by clear and convincing evidence during their hearing that they are a flight risk or a danger to the community, and (3) whether aliens must be provided a bond hearing every six months. (Supreme Court Tracker, June 24, 2016) The Supreme Court will hear this case during its October term, with arguments likely around election time. (Id.)

The case is significant because the Supreme Court will need to resolve a circuit split over the length of mandatory detention. The 2nd and 9th Circuits impose a hard cap of six months for detention while the 1st, 3rd, and 6th Circuits say that an alien may be detained for a “reasonable time.” In reaching its decision in Jennings, the 9th Circuit Court of Appeals relied on Zadvydas v. Davis to support its imposition of a flat six-month limit on mandatory detention. Zadvydas held that a convicted criminal alien who had completed his sentence but whose country of origin refused repatriation could not be detained indefinitely. (See FAIR Legislative Update, April 21, 2015) However, the holding in Demore v. Kim shows why the 9th Circuit’s reliance on Zadvydas is incorrect. In Demore, the Court held that detention during the removal proceedings “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings” and it has an “obvious termination point” at the entry of a final order of removal. (See Demore v. Kim) By comparison, in Zadvydas, the goal of detention is no longer practically attainable and therefore, distinguishable.

Interestingly, the Obama administration opposes granting bond hearings. In his request to have the Supreme Court hear the case and overturn the 9th Circuit’s ruling that the government must provide a bond hearing, U.S. Solicitor Gen. Donald Verrilli said “Throughout the history of U.S. immigration law, Congress has never provided bond hearings for aliens detained at the threshold of entry to the country.” (Los Angeles Times, June 20, 2016) Verrilli added that the Immigration and Nationality Act says aliens with criminal records “shall be detained” and removed from the country. (Id.) Additionally, he noted that the appeals court’s decision “creates an incentive for people to make a potentially life-threatening trip to this country, to abuse our legal process to obtain entry into the United States, and then to disappear rather than appear at any removal proceedings.” (Washington Post, June 20, 2016)

The Obama administration’s concern about the 9th Circuit’s ruling incentivizing illegal immigration is ironic given that illegal aliens have been exploiting the President’s non-enforcement agenda for years. Indeed, this is merely another example of President Obama’s selective application of our immigration laws. For example, while recent border crossers are supposedly enforcement “priorities,” these illegal aliens are merely given “notices to appear,” an official document that sets a court date in the future but illegal aliens refer to as “permisos” because they permit them to stay in the country. (Washington Examiner, Feb. 4, 2016) Unsurprisingly, Brandon Judd, president of the National Border Patrol Council, calls them “notices to disappear” because 80-90 percent of the illegal aliens failed to show up for their hearing and disappeared into the interior of the country. (FAIR Legislative Update, Mar. 1, 2016)

ICE Provides Grossly Inadequate Information to Congress

A Freedom of Information Act (FOIA) request by the Immigration Reform Law Institute (IRLI) on behalf of the Federation for American Immigration Reform (FAIR) revealed the Obama administration grossly misrepresented the number of subsequent offenses committed by criminal aliens released onto the streets in Fiscal Year 2014. Specifically, the FOIA data show the number of convictions is nearly ten times higher than what the Department of Homeland Security (DHS) reported to the House Judiciary Committee earlier this year. (Id.) Equipped with FAIR’s press release and FOIA information, Judiciary Chairman Bob Goodlatte (R-VA) sent a letter last Thursday to DHS Secretary Jeh Johnson demanding answers on the discrepancy between the numbers provided in response to the congressional inquiry compared to those given to FAIR. (House Judiciary Committee Press Release, June 21, 2016, Chairman Goodlatte Letter to Secretary Johnson, June 21, 2016)

The information provided by the U.S. Immigration and Customs Enforcement (ICE) shows that the agency significantly underreported the number of convictions by criminal aliens released in Fiscal Year 2014 by 17 percent. (Id.) In April 2015, ICE informed the Judiciary Committee that it had released 30,558 aliens who had committed 79,059 convictions, whereas the information ICE provided in the FOIA request shows that ICE did release 30,558 aliens but they had actually been convicted of 92,347 crimes, a discrepancy of over 13,000. (Id.) This includes significantly more convictions for homicide-related offenses (17%), robberies (22%), sexual assaults (27%), aggravated assaults (17%), domestic violence assaults (11%), and driving under the influence (10%). (Id.)

While the Obama administration continues to claim that public safety is their top priority, the underreported conviction data suggests otherwise. FAIR’s FOIA showed that the accurate (higher) number of criminal convictions was in ICE’s database by March 2015. (FAIR FOIA, June 16, 2016) Yet on April 14, 2015, ICE Director Sarah Saldaña testified before Congress using the 79,059 convictions number and has reiterated to Congress that incorrect number on multiple occasions, most recently in February 2016. (Chairman Goodlatte Letter to Secretary Johnson, June 21, 2016) “We already know that the Obama administration’s refusal to detain and remove tens of thousands of criminal aliens poses dangers to American communities and the rule of law,” charged Chairman Goodlatte. (House Judiciary Committee Press Release, June 21, 2016) “Now we know the administration has not been straightforward with Congress about how hazardous its policies truly are.” (Id.) Goodlatte wants to know “why ICE was not forthcoming about the information” and indicated that he will “pursue this matter until [h]e get answers.” (Id.)

North Carolina Committee Passes Bill to Enforce Anti-Sanctuary Laws

The North Carolina Senate Judiciary II Committee approved a measure last week to withhold state funds from localities that violate state law by instituting sanctuary policies. (Greensboro News & Record, June 21, 2016) House Bill (HB) 100 adds teeth to 2015’s HB 318, which in addition to prohibiting sanctuary policies, amped up the state’s E-Verify requirements and prohibited state and local officials from accepting consular ID cards as proof of identification or residency. (News & Observer, June 21, 2016)

HB 100 strengthens North Carolina’s immigration enforcement laws by creating a method for residents to file complaints that a city or county is not in compliance with provisions prohibiting sanctuary policies and requiring E-Verify use. The legislation requires the Attorney General to initiate an investigation within 45 days of its filing, and gives the Attorney General 60 days to make a determination on whether the municipality is in compliance. (HB 100 at §3a) Any municipality found to be in violation will be ineligible to receive state appropriated funding in the following fiscal year. (Id.)The measure allows for affected municipalities to appeal the Attorney General’s findings. (Id.)

Additionally, HB 100 gives residents the right to bring an action in court for declaratory and injunctive relief if that person believes his or her municipality is in violation of a state immigration-related law. (Id.)HB 100 also removes an exception in HB 318 that allows law enforcement officers to accept foreign consular cards to determine the identity or residency of an individual. (HB 100 at § 2b)

Senator Norman Sanderson (R-2) filed HB 100 to ensure uniform administration of North Carolina’s immigration enforcement measures. “We have to decide whether North Carolina is a rule of law state,” commented Senator Sanderson. (News & Observer, June 21, 2016) “If you have one municipality adhering to one law, and you’ve got another adhering to another law, what you’ve got is chaos.” (Id.)

HB 100 must be approved by the full Senate before it can be sent back to the House of Representatives for concurrence on its amendments. If passed by the General Assembly, HB 100 will be sent to Governor Pat McCrory’s (R) desk for his signature.