Legislative Update: 8/16/2016
U.S. Now on Pace to Resettle 30,000 Syrians Annually
The Obama administration has been ramping up the resettlement of Syrians into the U.S. as refugees and will easily meet the President’s goal of bringing in at least 10,000 by the end of the current fiscal year. In order to accomplish this goal, the administration slashed the vetting time of Syrians from 18-24 months to three months. (FAIR Legislative Update, Apr. 12, 2016) Predictably, this led to a significant uptick in resettlement since the month of May, when the administration brought in 1,069 Syrians. (FAIR Legislative Update, June 7, 2016) “We can now say that we’ve welcomed 8,000 Syrian refugees so far this year and we are very confident we will welcome at least 10,000,” Assistant Secretary of State Anne Richard announced recently. (Washington Times, Aug. 5, 2016) Given the administration’s current processing rate, more than 12,000 Syrians will be resettled into American communities when Fiscal Year 2016 ends September 30. (Id.)
With no signs to indicate that this pace may be slowing down, Fiscal Year 2017 could easily exceed the resettlement target of 10,000 Syrians before President Obama leaves office in January. Indeed, the Obama administration recently announced that it admitted a total of 2,478 Syrians in the month of July and another 453 in the first week of August. (Washington Times, Aug. 7, 2016) If the current rate continues, the U.S. will resettle approximately 30,000 Syrians in Fiscal Year 2017. (Id.)
The decision to bring tens of thousands of Syrians to the U.S. is particularly alarming given the heightened national security concerns. Late last year, FBI Director James Comey unequivocally testified before Congress that the U.S. cannot properly vet Syrian refugee applicants for terrorist and national security threats. (FAIR Legislative Update, Nov. 24, 2015) These concerns remain relevant, as there have been several high profile incidents of Syrians being resettled as refugees in Europe, only to later commit horrific acts of terror in their host countries. Despite these legitimate security concerns, the Obama administration has only denied seven percent of applicants, while approving 80 percent and placing a “hold” on the remaining 13 percent. (See Washington Times, Aug. 5, 2016)
DOJ Urges Judge Hanen to Scrap Sanctions, Self-Imposes Attorney Ethics Training
With the 26-state lawsuit challenging President Obama’s executive amnesty programs heading back to U.S. District Judge Andrew Hanen to finally be litigated on the merits, the Department of Justice (DOJ) is requesting that Hanen revoke sanctions he imposed earlier in the trial. In a scathing rebuke of the administration back in early 2015, Judge Hanen imposed sanctions after learning that the Obama administration had approved over 100,000 expanded DACA applications in violation of the court’s injunction. In an order approving discovery for the plaintiff-states to investigate, Judge Hanen wrote, “whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients” the DOJ attorneys had “misrepresented the facts.” (See FAIR Legislative Update, Apr. 14, 2015) To further compound the lack of “candor,” Judge Hanen noted at the time, counsel continued to hide the truth for some time even while asking him to reconsider his ruling. (Id.) Such actions, he stated, violate attorney’s professional rules of conduct and are “unacceptable” when an attorney knows that both the Court and the other side are relying on “complete frankness.”
Despite calling the government’s behavior “misconduct,” Judge Hanen initially decided to wait to order measures that would constitute “an appropriate remedy or sanction” until he knew more. (Id.) In May 2016, Judge Hanen finally ordered sanctions against the DOJ attorneys for their “unethical conduct,” saying the government attorneys were “intentionally deceptive” about the 100,000 approved expanded DACA applications. (Law360, Aug. 9, 2016) However, he postponed the sanctions order, as well as the outstanding issues in the case remaining from the Supreme Court’s 4-4 deadlock, until August 2016. (Politico, Aug. 8, 2016; see FAIR Legislative Update, June 28, 2016)
In an effort to appease Judge Hanen, the government recently informed him it has self-imposed ethics requirements on DOJ attorneys. In a brief to the court, Deputy Assistant Attorney General Benjamin Mizer told Judge Hanen he has mandated that all the attorneys in DOJ’s Civil Division (about 1,000 lawyers) take an additional hour of ethics training within the next 90 days. (Politico, Aug. 8, 2016) Additionally, DOJ requested that Judge Hanen revoke the sanctions against them. (Id.)
Interestingly, despite requiring this additional class, DOJ continues to maintain that its attorneys did not act unethically. According to a DOJ spokesperson, “The DOJ takes with utmost seriousness the public trust committed to it to represent the interests of the American people in the courts of the United States, and insists that its attorneys adhere to the high standards of ethical conduct and professionalism required to carry out that critical mission.” (Law360, Aug. 9, 2016) “The court previously found that certain representations in this case were made in bad faith or with the intent to deceive. We respectfully but emphatically disagree with that conclusion…” (Id.)
It is unclear how Judge Hanen will rule on this matter. If Judge Hanen does not toss the sanctions, every Washington-based DOJ attorney who appears in state or federal courts in the 26 states involved in the lawsuit will need to take an additional 3 hours of ethics training designed and led by an outside expert in attorney ethics. (Id.; Politico, Aug. 8, 2016)
IRLI Awarded Attorneys’ Fees in STEM OPT Case
On Monday, August 8, a U.S. district court judge awarded the Washington Alliance of Technology Workers (WashTech) $42,000 in attorneys’ fees and litigation costs in their suit against the Department of Homeland Security (DHS). (See Law360, Aug. 8, 2016) WashTech, which is represented by FAIR’s legal arm the Immigration Reform Law Institute (IRLI), had sued DHS over its decision to bypass the notice and comment period required by law in 2008 when it extended the Optional Practical Training (OPT) program by 17 months for foreign nationals with STEM degrees. The federal judge agreed and vacated the 2008 STEM OPT expansion but she stayed her ruling to allow the Obama administration time to implement a new rule. Noting that the cancelation of the 2008 STEM OPT rule meant the court found DHS violated the Administrative Procedures Act (APA), IRLI declared victory and demanded that DHS pay WashTech’s attorneys’ fees and litigation costs. Although the judge refused to approve the over $400,000 in fees WashTech sought, she did require DHS to pay $42,000 for what she called a “marginal victory.”
At issue in the WashTech case is the OPT program, an administratively-created guest worker program to undermine the American workforce. Congress initially established a way for foreign nationals to enter the United States through the F-1 visa on a temporary basis to obtain an education and then put their schooling to work in their home countries. (8 U.S.C. § 1101(a)(15)(F)(i)) The F-1 visa required these aliens to leave within 60 days of graduating. (8 C.F.R. § 214.2(f)(5)(iv)) The Executive Branch, seeking a way for these foreign nationals to remain in the country, created the OPT program which allowed foreign college graduates to retain their F-1 foreign student visa status in order to work for 12 months after graduation. (8 C.F.R. § 214.2(f)(10)) In 2008, the Bush administration abandoned all pretenses that OPT was geared toward students and extended the period of OPT for foreign nationals on an F-1 visa with a STEM degree by an additional 17 months—for a total of 29 months of work authorization after degree completion. The Bush administration implemented this rule without notice and a comment period (as required by the APA) by claiming a labor shortage dictated the necessity.
As noted above, IRLI challenged the STEM OPT expansion and the judge vacated the 2008 rule finding there was no emergency that allowed the Bush administration to violate the notice and comment requirements of the APA. (See Law360, Aug. 8, 2016) Unfortunately, DHS, under the Obama administration, instituted a replacement rule in compliance with the APA that extended the period of OPT for foreign nationals on an F-1 visa with a STEM degree by an additional 2 years – for a total of 36 months after degree completion. Although receiving any fee award under the Equal Access to Justice statute is an impressive achievement for IRLI as the awards are typically handed out to open-borders litigation groups, IRLI has appealed the lower court’s fee ruling as inadequate to the D.C. Circuit.
New Jersey Hospital Encourages Birth Tourism
Meadowlands Hospital Medical Center (MHMC), located in Secaucus, New Jersey, is encouraging pregnant women from Russia to come to the U.S. to give birth. (NJ.com, Aug. 10, 2016) The service, called “AmeriMama,” allows foreign mothers to enable their children to become U.S. citizens. Online advertising by the MHMC service included a since removed Russian language website promoting travel packages, priced as high as $27,500, to secure visas and citizenship papers for the mother and newborn child. (Id.) The service also coordinated airfare, medical, housing and other living arrangements for mothers and their families for additional fees. (Id.)
AmeriMama’s Facebook page makes clear the purpose of the business is to exploit the “birthright citizenship” clause of the 14th Amendment to the U.S. Constitution. (Id.) The birthright citizenship clause refers to the current practice of considering anyone born on U.S. soil to automatically be a U.S. citizen, regardless of their parents’ citizenship or immigration status. This misinterpretation of the 14th Amendment has prompted foreigners to travel to the U.S. for the express purpose of giving birth to U.S. citizen children, giving this phenomenon the name “birth tourism.” With a U.S. citizen child, the parents have the right to return to the United States and apply for legal residency, as well as obtain taxpayer-funded benefits for their child.
“AmeriMama” is just one of many companies abusing the 14th Amendment to promote birth tourism for a profit. (CNN, Mar. 4, 2015) In 2012, FAIR reported on “maternity mansions” in Chino Hills, California, that existed solely to make money recruiting foreigners to the U.S. to give birth to children on U.S. soil. (FAIR Legislative Update, Dec. 10, 2012) And, earlier last year, U.S. Immigration and Customs Enforcement raided more than three dozen “maternity hotels” in Southern California where foreign women, particularly wealthy Chinese women, were traveling for the sole purpose of giving birth to U.S. citizen children. (CNN, Mar. 4, 2015)