Legislative Update: 9/11/2013

Congress Refuses to Act on Post-9/11 Visa Tracking System

Following the 9/11 terrorist attacks, where several of the hijackers had overstayed their visas, Congress called on the government to implement an entry-exit system through passage of the USA PATRIOT Act (Public Law 107-56, October 2001). The PATRIOT Act required the government to fully implement “as expeditiously as possible” the already required entry- exit data system for airports, seaports, and land ports of entry (first required by Congress in 1996). The PATRIOT Act also added a new requirement, that the system be biometric. (See also 8 U.S.C. 1365(b)]

Twelve years later, however, the government could not be farther from implementing the biometric entry-exit system, and Congress refuses to force it to act.

To be sure, conspicuously missing from the 1,200 page Senate “comprehensive” immigration reform bill (S.744) is any requirement a biometric entry-exit system actually be put into place. The Senate bill merely requires a biographic system be put into place at air and sea (not land) ports of entry. And an amendment by Utah Senator Orrin Hatch added during the Senate Judiciary Committee’s markup of the bill, while touted as a key improvement, actually weakens the entry-exit mandate currently in place by scaling-back and phasing-in what is already law. (See S. 744 at §3, see also FAIR blog post, May 21, 2013) Adding insult to injury, Gang of Eight leader Marco Rubio (R-FL) praised the Hatch amendment and vowed to make the system even better once the Senate bill hit the floor, only to turnaround and oppose an amendment by Sen. Vitter that would have made the biometric entry-exit system mandatory before an amnesty. (See Breitbart News, June 18, 2013; see also Huffington Post, May 14, 2013)

Like their friends in the upper chamber, House GOP Leaders similarly seem to have no plans to secure U.S. borders by requiring the implementation of the long-awaited biometric entry-exit system.  Instead, legislation passed by the House Homeland Security Committee only provides the Administration more leeway to skirt around the biometric entry-exit mandate. Indeed, H.R. 1417, the “Border Security Results Act,” merely requires the Secretary of Homeland Security to put in place a plan to immediately implement the system—not actually immediately implement the system. Moreover, if in the Secretary’s sole discretion such a plan is “not feasible,” then H.R. 1417 provides the Secretary six months to submit yet another plan to implement an “alternative” system, effectively allowing the Secretary to scrap current law and start from scratch. The Administration is then given two years to implement the alternative. (See H.R. 1417 at §4)

However, the current Administration—and its two predecessors—have shown time and time again that deadlines mean nothing. In fact, Congress required the government to first implement an entry-exit system to track aliens coming to and from the U.S. in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. (See IIRAIRA, Division C of Pub.L. 104–208). Yet, nearly two decades later, our Department of Homeland Security still has no clue as to how many aliens are in the country unlawfully. In fact, the Government Accountability Office released in July a report that reveals that the Administration has lost tabs on over 1 million aliens who came to the U.S. the legal way. (See GAO-13-683; see also Homeland Security Today, July 31, 2013)

Perhaps if the Administration made the biometric entry-exit system a “priority”—instead of using its alleged insufficient resources to process deferred action applications for illegal aliens and review cases of those already ordered deported—it could once and for all faithfully execute the law by implementing the biometric entry-exit system. And if Congress made implementing the biometric entry-exit system a priority—instead of using its time and energy to draft and debate bills granting amnesty to 12 million illegal aliens while doubling guest workers at a time of record unemployment—it could actually make them.  

California Assembly Considers Anti-Detainer Bill

On Monday, the California Senate passed the so-called “TRUST Act”(AB 4), which prohibits state and local law enforcement from honoring U.S. Immigration and Customs Enforcement (ICE) detainers in all but a very limited number of circumstances, by a vote of 25-11. An ICE detainer serves as a notice to state and local law enforcement agencies that ICE seeks custody of a particular alien for the purpose of arrest and removal. If California adopts legislation ordering local agencies to ignore ICE detainers, state and local jails will have no choice but to release criminals — criminals who have no right to be in the United States — back onto the street.

The California Senate amended the bill to conform to Governor Jerry Brown’s veto message of AB 1081, a similar anti-detainer bill introduced in 2012, by expanding the list of crimes that law enforcement officers may consider in choosing to comply with an ICE detainer request. The Senate then returned the bill to the California Assembly for concurrence with the Senate’s amendments. Ironically, the bill may not be considered until on or after September 11 pursuant to Assembly rules.

Assembly Bill 4 is obviously intended to impede the federal government’s ability to enforce immigration law, but it comes with dire consequences. In an August 23, 2012 letter to FAIR, former ICE Director John Morton stated that jurisdictions that ignore ICE detainer requests are undermining public safety in their communities. Recently, the U.S. Attorney’s Office in Seattle, Washington sent a letter to the King County Council, who is considering an anti-detainer ordinance, providing data that shows that ignoring federal immigration detainers for minor crimes could threaten public safety. According to the letter, the proposed ordinance would allow dangerous criminals who happened to be arrested for minor offenses avoid federal justice.

ICE official Nathalie Asher appeared at a King County Committee hearing and argued against the proposal, stating it raises serious public-safety concerns. ( The Seattle Times, Aug. 27, 2013) Asher added that illegal aliens convicted of minor crimes could actually have “more significant” criminal records and that ICE detainers are a safeguard against premature release. “That is really the role that Congress has put on ICE — to vet and make those determinations,” Asher said.

The Obama Administration has kept U.S. Immigration and Customs Enforcement (ICE) Public Advocate Andrew Lorenzen-Strait in his role despite President Obama signing legislation earlier this year that eliminated the position. (Fox News, Sept. 5, 2013)

Congress eliminated the Public Advocate position in March as part of the “Consolidated and Further Continuing Appropriations Act of 2013,” legislation to fund the federal government through the end of the fiscal year. (See Public Law 113-6, Mar. 26, 2013; see also H.R. 933) Indeed, Section 567 of the Act reads, “None of the funds made available by this Act may be used to provide funding for the position of Public Advocate within U.S. Immigration and Customs Enforcement.”

Nonetheless, the Administration has defied its own law by simply changing the name of Lorenzen-Strait’s position while keeping the same job description. (Fox News, Sept. 5, 2013) He is now the Deputy Assistant Director of Custody Programs and Community Outreach, where he performs the same duties as the now defunct Public Advocate position. (Id.)

Created in February 2012, the Public Advocate’s job was to serve as a point of contact for aliens in removal proceedings, community and advocacy groups, and others who have concerns, questions, recommendations or other issues they would like to raise about the Administration’s executive amnesty efforts. (ICE Press Release, Feb. 7, 2012; see also FAIR Legislative Update, Feb. 13, 2012)

Representative Diane Black (R-TN), the Congresswoman responsible for getting the language to gut the Public Advocate position into the FY2013 funding bill, called the Administration’s move in reinstating the post under a new name a waste of taxpayer dollars. “Using taxpayer dollars to fund a position whose primary purpose is to advocate on behalf of individuals who have broken our laws and entered our country illegally is ridiculous and certainly a waste of precious taxpayers’ money,” said Rep. Black. (Fox News, Sept. 5, 2013) “[The Obama Administration is] setting a dangerous precedent by breaking the very law he signed, and this kind of abuse of power will only undermine his agenda by destroying his credibility with Congress and the American people.” (Id.)

Feinstein Urges ICE to Stop Deporting Illegal Farm Workers 

Pro-amnesty Sen. Dianne Feinstein (D-CA) is requesting Immigration and Customs Enforcement (ICE) officials to stop enforcing immigration laws against illegal farm workers and their employers. (The Hill, Sept. 4, 2013)

In a letter to outgoing Department of Homeland Security Secretary Janet Napolitano, Feinstein urged ICE to replicate for farm workers the administration’s policy halting deportations of illegal aliens who claim to have been brought to the country as minors known as Deferred Action for Childhood Arrivals (DACA). “I respectfully suggest that you adopt a similar policy of exercising prosecutorial discretion to defer enforcement against agricultural employers and workers, and concentrate instead on removing those who would and have harmed our society, rather than those who contribute to our vital agricultural economy and heritage, and the safe and high-quality food supply that benefits all Americans,” Feinstein wrote. (Id.)

Feinstein, whose home state has approximately 81,000 farms, co-authored the agricultural amnesty portion of the Senate’s “comprehensive” immigration reform bill with Sen. Orrin Hatch (R-UT) and Gang of Eight Sens. Marco Rubio (R-FL) and Michael Bennet (D-CO). (Id.)

Latest House Agenda Quiet on Immigration Timing

In a memo outlining the House of Representatives’ fall agenda, Majority Leader Eric Cantor (R-VA) provided no further insight as to when the lower chamber will address immigration. (National Journal, Sept. 8, 2013)

Sent to his House colleagues Friday, the Majority Leader’s memo repeated the same GOP talking points regarding immigration, stating the borders need to be secured and laws enforced. Summed up in just three sentences, the Leader’s message to fellow House Republicans was:

We know that the current legal immigration system is broken and should be fixed in a deliberate and responsible manner. That is why the Judiciary and Homeland Security committees have produced a number of specific bills which the House may begin considering this fall. Before we consider any other reforms, it is important that we pass legislation securing our borders and providing enforcement mechanisms to our law enforcement officials. (See Roll Call, Sept. 6, 2013)(emphasis added)

Undoubtedly, Cantor’s reference to first passing legislation “securing our borders and providing enforcement mechanisms to our law enforcement officials” refer to bills already passed through House Committees—H.R. 1417, the “Border Security Results Act,” and H.R. 2278, the “SAFE Act”.

As anticipated, the Majority Leader’s priorities for the months of September and October include those with firm deadlines. These consist of ensuring the federal the government remains funded into the 2014 fiscal year (which ends Sept. 30), addressing the nation’s debt ceiling (which is deemed to be reached by mid-October by the Treasury Secretary), and voting on whether to engage in military action in Syria (which Cantor says the House will vote on within the “next two weeks”). (Id.)

In the meantime, the open borders and pro-amnesty lobbies have vowed to continue pressuring the House to act on immigration. The groups plan to host pro-amnesty rallies in cities across the country on October 5, and a rally in Washington, D.C. October 8. (New York Times, Sept. 8, 2013) “We’re gearing up for late October — we’re going to push really hard for votes this fall and negotiations with the Senate,” said Frank Sharry, the executive director of pro-amnesty America’s Voice. (Id.)

McCain, Flake Looking to Make Amnesty Deal with House

Arizona’s two Republican Senators, John McCain and Jeff Flake, are willing to negotiate with the House of Representatives in order to pass “comprehensive” immigration reform. McCain and Flake told a forum in Mesa, Arizona they were fine with the House’s piece-meal approach provided the two Chambers go to conference with their respective pieces of legislation. (CQ Today, Aug. 27, 2013)

However, the two Senators, both members of the Senate Gang of Eight, indicated that citizenship for illegal aliens as part of an amnesty deal is non-negotiable. “A fundamental principle of this legislation is it has to contain a path to citizenship,” McCain said. (Id.) “We would be amenable to negotiations on various aspects” of how the path to citizenship would work, McCain said. (Id.) “Ours is not engraved in concrete.” (Id.)

Remarkably, the Arizona duo admitted their bill encourages employers to hire amnestied illegal aliens over U.S. citizens. “You have a bit of a quandary here,” Flake said. (Id.) “If we were to say that individuals who come here on a work permit or those who were just made legal had access to federal benefits like Obamacare, you’d have an outcry.” (Id.) Because amnestied illegal aliens are ineligible for Obamacare under the Senate bill, employers would not be subject to $5,000 in fines for not providing health insurance to amnestied illegal aliens.

Although the House only has 36 scheduled working days left this year and a full agenda of other issues to address, Sen. McCain said he is “guardedly optimistic” the House will pass an amnesty bill. (The Daily Caller, Aug. 27, 2013) “I think there’ll be plenty of time to sort it out if we do not succeed.” (Id.; compare FAIR Legislative Update, Sept. 4, 2013) 

Hundreds Rally in Boehner’s Backyard

Hundreds of true immigration reformers rallied in House Speaker John Boehner’s (R-OH) district over the weekend, telling him to oppose amnesty and reject efforts to expand foreign guest worker programs.

Organized by Ohio Citizens for Sensible Immigration, Grassroots Rally Team of Ohio, and Southwest Ohio Patriots, the Saturday rally included guests from throughout the true immigration reform movement. Emceeing the event was radio personality Doc Thompson, and guest speakers included Tea Party Patriots co-founder Jenny Beth Martin, National Director of The Remembrance Project Maria Espinoza, Rockingham County North Carolina Sheriff Sam Page, Director of America for Lawful Immigration Solutions Today Luis Pozzolo, and Ohio State Representatives Matt Lynch (OH-76) and Wes Retherford (OH-51) among others. Musical guest Madison Rising also played at the event, rounding out the event.

The message sent to Speaker Boehner at the widely attended event included no amnesty for illegal aliens, protect American workers by saying no to increased foreign labor, and no comprises or conference with the 1,200 page Senate “comprehensive” immigration reform bill. 

Click here to see photos and video of the event.