Legislative Update: 7/12/2016
Senate Democrats Deny Justice for Kate Steinle… AGAIN
More than a year after Kate Steinle’s senseless death in the sanctuary city of San Francisco, her family continues to be denied justice by Congress. July 1 marked the one year anniversary of Kate’s tragic murder by Francisco Sanchez, a previously deported criminal alien who was cut loose by San Francisco law enforcement because of the city’s sanctuary policy. (FAIR Legislative Update, July 8, 2015) In an attempt to rein in sanctuary cities, Sen. Pat Toomey (R-PA) introduced the “Stop Dangerous Sanctuary Cities Act” (S. 3100), a commonsense bill that denies federal funds to sanctuary jurisdictions. (See FAIR Summary of S. 3100) Disappointingly, in a 53-44 vote (with 60 “yes” votes needed), all Senate Democrats except Sens. Joe Donnelly (D-IN) and Joe Manchin (D-WV) denied Kate’s family justice by voting to kill the bill. (Senate Roll Call Vote #119) Pro-amnesty Sen. Mark Kirk (R-IL) was the only Republican to vote against the bill while Sens. Lindsey Graham (R-SC); Mike Lee (R-UT); and Sherrod Brown (D-OH) did not cast a vote. (Id.)
Last week’s vote was nearly identical to the vote on a similar anti-sanctuary city bill last year. In October 2015, just months after Kate’s murder, Senate Democrats banded together to place partisan politics over sound policy and blocked Sen. David Vitter’s (R-LA) “Stop Sanctuary Policies and Protect Americans Act” (S. 2146) in a 54-45 vote. (See FAIR Legislative Update, Oct. 27, 2015; FAIR’s Summary of S. 2146) In both votes, only Democratic Sens. Donnelly and Manchin had the courage to break from their party and vote in favor of the rule of law while Sen. Kirk again was the lone GOP defection. (FAIR Legislative Update, Oct. 27, 2015) Senators Lee and Brown, who did not vote on July 6, voted along party lines last year. Notably, pro-amnesty Sen. Graham did not cast a vote during either vote.
Indicative of his non-enforcement agenda and disregard for the rule of law, President Obama announced ahead of the vote of his opposition to S. 3100. “The Administration strongly opposes S. 3100,” read a statement from the Office of Management and Budget (OMB). (OMB Statement on S. 3100, July 6, 2016) After two pages of inaccurately describing the bill and calling for mass amnesty instead, the statement concludes, “If the President were presented with S. 3100, his senior advisors would recommend he veto the bill.” (Id.)
Then, immediately after the upper chamber failed to pass S. 3100, Senate Democrats similarly killed “Kate’s Law” (S. 2193), which is named after Kate Steinle. Kate’s Law is a narrow bill that would establish a mandatory five year prison sentence for illegal reentry. (See FAIR Legislative Update, July 5, 2016) Despite the narrowly tailored nature of Kate’s Law, it failed 55-42 (with 60 “yes” votes needed). (Senate Roll Call Vote #120) The only difference between the S. 3100 and S. 2193 votes is that Sens. Kirk and Heidi Heitkamp (D-ND) voted in favor of Kate’s Law.
The outcome of these votes are disappointing for several reasons. First, Wednesday’s votes were only procedural votes to begin debating the bills. Despite the clear dangers sanctuary cities and criminal aliens pose to the American people, pro-amnesty Democrats showed they are willing to obstruct the legislative process to protect all illegal aliens from immigration enforcement. Additionally, both of Kate Steinle’s senators — Barbara Boxer (D-CA) and Diane Feinstein (D-CA) — voted no on both bills. Although Feinstein occasionally speaks out against sanctuary jurisdictions, her actions say otherwise. In fact, she instituted San Francisco’s first sanctuary policy back in the 1980s when she was mayor.
Although the Senate remains unwilling to stop sanctuary cities, the House continues to prioritize them. The day after the Senate vote failed, Rep. Diane Black (R-TN) introduced the companion bill (H.R. 5654) in the House of Representatives. In a joint press release with Sen. Toomey, the lawmakers call Congress’s failure to shut down sanctuary cities “unconscionable.” (Black Press Release, July 7, 2016) “Sanctuary cities thumb their nose at Congress, they flout the law, and they endanger the lives of their own citizens. The Stop Dangerous Sanctuary Cities Act will take a broad-based approach to cutting off funding for these jurisdictions and asserting Congress’s Constitutional role in setting immigration policy,” Rep. Black said. (Id.) Senator Toomey added, “I am pleased that Congressman Black and her colleagues have introduced companion legislation in the House that will protect our communities from violent criminals and suspected terrorists who are in the U.S. illegally. Despite receiving support from a bipartisan majority, my legislation was regrettably blocked in the Senate. We cannot give up the fight.” (Id.) As of July 10, H.R. 5654 had 56 original cosponsors.
DOJ Issues New Guidance Aimed at Sanctuary Cities
Last Thursday, at the urging of Rep. John Culberson (R-TX), the Department of Justice (DOJ) issued new guidance that would deny certain grants to sanctuary cities — state and local jurisdictions with policies that impede the enforcement of federal immigration law. (Culberson Press Release, July 7, 2016; DOJ Letter to Culberson and Guidance, July 7, 2016)
Since he became chairman of the House Appropriations subcommittee with jurisdiction over the DOJ, Culberson has been pressuring the agency to deny federal law enforcement grants to jurisdictions that do not comply with 8 U.S.C. § 1373. (See FAIR Legislative Update, Feb. 9, 2016; FAIR Legislative Update, Mar. 1, 2016) This statute explicitly 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 a person’s immigration status.
Now, according to guidance issued by the DOJ’s Office of Justice Programs, state and local jurisdictions that refuse to comply with 8 U.S.C. § 1373 will no longer be eligible for grants through the Edward Byrne Justice Assistance Grant Program (JAG) and the State Criminal Alien Assistance Program (SCAAP). (DOJ Letter to Culberson and Guidance, July 7, 2016) “State and local governments must now choose between receiving federal law enforcement grant money or protecting dangerous criminal illegal aliens.” Culberson said. “They can no longer do both.” (Culberson Press Release, July 7, 2016)
While the new guidance is an encouraging development in the fight against dangerous sanctuary jurisdictions, it also highlights an important loophole in existing law that needs to be closed to fully shut off funding to sanctuary cities. Specifically, 8 U.S.C. § 1373 does not require the collection of immigration information, so many sanctuary jurisdictions simply refuse to do so and are technically in full compliance with the law. The new guidance points this out, “[8 U.S.C. § 1373] does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information.” (DOJ Letter to Culberson and Guidance, July 7, 2016) Thus, in order to prevent sanctuary jurisdictions from circumventing the intent of the DOJ’s guidance, Congress must amend 8 U.S.C. § 1373 to require the collection of immigration information from all detained aliens. One bill that accomplishes this important goal is Sen. Jeff Sessions’s (R-AL) “Protecting American Lives Act” (S. 1842) and FAIR urges its swift passage.
Commonsense Bill Will Force ICE to Detain Illegal Aliens That Commit Crimes Which Kill People
Senators Joni Ernst (R-IA), Chuck Grassley (R-IA), Deb Fischer (R-NE), and Ben Sasse (R-NE), have introduced “Sarah’s Law,” to honor Sarah Root, an Iowan who was killed earlier this year by Eswin Mejia, an illegal alien who was driving in a drunken street car race with a suspended license. Sarah’s Law would require U.S. Immigration and Customs Enforcement (ICE) to detain an individual who is in the country illegally and is charged with a crime resulting in the death or serious bodily injury of another person. (See Senators’ Press Release, June 30, 2016, See Sarah’s Law)
Despite Mejia being charged with felony motor vehicle homicide three days after the crash, failing twice previously to appear in court on state charges, and local law enforcement raising concerns about his elevated flight risk, ICE denied requests to detain him and he was released on bail. (See FAIR Legislative Update, Apr. 12, 2016) Predictably, Mejia fled and he remains at large today. (Id.) ICE said they did not take custody of Mejia because his arrest for felony vehicular homicide “did not meet ICE’s enforcement priorities.” (Id.) These narrow enforcement priorities were laid out in a November 2014 policy memo issued by Department of Homeland Security (DHS) Secretary Jeh Johnson. (Id.; see DHS Enforcement Priorities Memo) The memo places a priority on the apprehension, detention, and removal of illegal aliens with felony records, significant misdemeanor convictions, gang ties, and those who pose terrorist threats. (See FAIR Legislative Update, Nov. 24, 2014) However, the memo supposedly provided ICE with discretion on whether to take custody of illegal aliens from state and local law enforcement when such aliens exhibit criminal behavior, but have not been convicted of a felony and most misdemeanors. (Id.) Despite having the clear authority to detain Mejia under the Obama administration’s unilaterally established “priorities,” ICE outrageously failed to do so.
Through Sarah’s Law, Congress ensures that ICE no longer has any discretion and, instead, would be forced to act. Specifically, Sarah’s Law amends Immigration and Nationality Act Section 236(c) to require the federal government to take custody of anyone who (1) entered the country illegally, violated the terms of their immigration status, or had their visa revoked and (2) is thereafter charged with a crime resulting in the death or serious bodily injury of another person. (See Sarah’s Law) The legislation also requires ICE to make reasonable efforts to identify and provide relevant information to the crime victims or their families. (Id.)
“Sarah Root and her family deserve justice for her tragic and untimely death,” said Senator Fischer. “Unfortunately, they may never see it because of ICE’s flawed policies. Edwin Mejia… should be in custody following the tragic crash that killed Sarah Root, but ICE failed to detain him and he escaped. This bill will mandate circumstances when ICE must detain illegal immigrants charged with serious crimes.” (See Senators’ Press Release, June 30, 2016)
Shortly after the Iowa and Nebraska senators introduced Sarah’s Law, several House lawmakers introduced companion bills. One version of Sarah’s Law is authored by Reps. David Young (R-IA) and Brad Ashford (D-NE) while another is authored by Rep. Steve King (R-IA). Despite bipartisan support in the House, Sarah’s Law may have a difficult time reaching the floor for a vote. Speaker Paul Ryan has publicly said he will not push Kate’s Law — another law named after another young woman killed by an illegal alien — because he does not want to ”clog” jails with illegal alien drunk drivers. “What we have to figure out is how do we write Kate’s Law so that we’re not clogging up our jails so much for, say, DUI, but for the true violent criminals… We need to get the details right,” he said. (Breitbart, June 30, 2016) FAIR supports Sarah’s Law and urges its swift passage.
California Seeks to Impede Law Enforcement… Again
The California Senate Public Safety Committee passed AB 2792 last week, dangerous legislation that would further inhibit local law enforcements officers’ ability to cooperate with federal immigration officials, even when it comes to the most dangerous criminal aliens already in custody. (Sacramento Bee, July 4, 2016)
AB 2792 would accomplish this goal by requiring law enforcement agencies to sign contracts, referred to as memoranda of understanding (MOUs), with the localities in which they are located before they may participate in any immigration enforcement program. (AB 2792 § 3) This includes critical enforcement initiatives such as the 287(g) and the Criminal Alien Program, giving local elected officials in California the ability to control law enforcement interactions with immigration officials.
Even if a local government agrees to sign an MOU with its law enforcement agency, under AB 2792, the MOU must contain certain barriers to prevent full cooperation with federal immigration officials. This includes prohibiting law enforcement from allowing U.S. Immigration and Customs Enforcement access to information, such as a criminal alien’s release date and time, and prohibiting federal officials from interviewing criminal aliens in law enforcement custody. (Id.)Only the most violent and serious offenders would be exempt from these prohibitions; even then law enforcement officers must provide written consent forms for an alien to be interviewed by federal officials, which the alien may nonetheless decline. (Id.)
The California State Sheriffs’ Association opposes AB 2792. According to the Association, the bill “impede[s] law enforcement’s ability to keep our communities safe by requiring agencies to negotiate unnecessary hurdles to simply work with our federal partners” and “attempts to preclude law enforcement from responding to federal requests for notification…” (Senate Committee on Public Safety Legislative Analysis)
California law enforcement officers’ hands are already tied by AB 4, the state’s so-called “TRUST” Act. Passed in 2013, that legislation prohibits law enforcement from honoring detainer requests from federal immigration officials unless specific conditions are met, allowing the vast majority of criminal aliens in California to be released back onto the streets. If AB 2792 is enacted, law enforcement would be further inhibited from cooperating with federal immigration officials, and even more criminal aliens would be released from custody.
The Senate must approve AB 2792 before it can be sent back to the Assembly for concurrence. Governor Jerry Brown has not yet indicated whether he will sign the measure.