Legislative Update: 9/23/2014
Senate Democrats Block Vote on Amnesty As Congress Passes Government Funding Bill
As anticipated, last week Congress passed a Continuing Resolution to fund the government until December 11. (See FAIR Legislative Update, Sept. 16, 2014; Roll Call, Sept. 17, 2014; The Hill, Sept. 18, 2014; H.J. Res. 124; The Hill, Sept. 18, 2014) The bill passed the House on Wednesday on a bipartisan vote of 319 to 108. (Roll No. 509) The next day, the Senate passed the bill on a similarly bipartisan vote of 78 to 22. (Vote No. 270; The Hill, Sept. 18, 2014)
Although both chambers passed the bill with wide support, there was last-minute excitement in the Senate when true immigration reformers forced a vote on the President’s executive amnesty. Senators Jeff Sessions (R-AL) and Ted Cruz (R-TX) used a procedural maneuver in an attempt to force Majority Leader Harry Reid (D-NV) to allow them to offer an amendment that would prevent the President from further expanding the Deferred Action for Childhood Arrivals program (DACA). (Politico, Sept. 18, 2014; Breitbart.com, Sept. 18, 2014) The maneuver, known as a motion to table, would kill an amendment introduced by Majority Leader Reid that would prevent the other Senators from offering any of their own amendments to the bill, a tactic known as “filling the amendment tree.” (Id.) If Sens. Sessions’ and Cruz’ motion passed, Majority Leader Reid would not be able to stop them from receiving a floor vote on an amendment to block the President’s unilateral amnesty. The Senators’ motion to table the Majority Leader’s amendment needed only 51 “yes” votes to pass, but failed by only one vote. (Vote No. 268)
While the House passed a bill to stop the expansion of DACA in late July, Majority Leader Reid, who is known for shielding Democrats from “tough” votes, has so far prevented a vote on the bill in the Senate. (FAIR Legislative Update, Aug. 5, 2014; Politico, Sept. 18, 2014) However, the “must pass” nature of the Continuing Resolution, which was necessary to prevent a government shutdown, meant that Majority Leader Reid could not avoid giving Sen. Sessions the opening for this procedural maneuver.
With the opening, Senators Sessions and Cruz implored the rest of the Senate to support their motion in floor speeches before the vote on Thursday afternoon. “With a casual stroke of a pen,” Sen. Sessions warned, the President is “preparing to nullify the immigration laws of the United States.” (National Review, Sept. 18, 2014) With this vote, he explained, the rest of the Senate would decide whether their “allegiance was to President Obama, Majority Leader Reid, and the open-borders lobby” or to the “American worker, the constitutional order, and our sovereign nation’s immigration laws.” (Id.)
Unfortunately, in the end, fifty Democrats, exactly the number required to block the motion, responded to this call by voting “no.” (Vote 268) Forty-five Republicans and five Democrats — Senators Joe Manchin (D-WV), Mary Landrieu (D-LA), Kay Hagan (D-NC), Mark Pryor (D-AR), and Jeanne Shaheen (D-NH) — voted yes. (Id.) All of these Democrats, except Sen. Manchin, who had indicated to reporters before the vote that he would support Sen. Sessions, are running in competitive races this year, where support for amnesty is increasingly becoming a liability. (See Bloomberg, Sept. 8, 2014; The Hill, Sept. 22, 2014; Daily Caller, Sept. 19, 2014)
Indeed, the action on the Senate floor underscored the increasing reluctance by moderate Democrats to defend the President’s executive amnesty. Senators Landrieu, Hagan, Pryor, and Shaheen waited until the very last minute to vote, when the motion’s failure was already assured and they could be sure their votes were not needed, before voting “yes.” (Politico, Sept. 18, 2014; Daily Caller, Sept. 19, 2014) In contrast, Sen. Manchin, the only one of the group not facing his constituents this year, cast his vote early in the process. (Id.) At one point during the vote, when the count was 46 votes (all the Republicans and Sen. Manchin), for the motion, and 49 votes against, Senate Democrats huddled on the floor. (Id.) After the huddle was over, only four of the remaining Democratic Senators, Landrieu, Hagan, Pryor, and Shaheen, voted for the motion, giving Majority Leader Reid his one vote margin of victory. (Id.)
Boehner: Immigration Reform Will Help Our Economy
Just a week after President Obama announced he would take unilateral action on immigration after the November election in order to protect vulnerable Senate Democrats, House Speaker John Boehner (R-OH) has again signaled his support for “comprehensive” immigration reform. “Immigration reform will help our economy, but you’ve got to secure the border first,” Boehner declared during a presentation at the American Enterprise Institute. (Boehner AEI speech, Sept. 18, 2014 (at approximately 19:50); see The Hill, Sept. 18, 2014) “Our legal system is broken, our border isn’t secure,” Boehner continued, then adopting the language of pro-amnesty groups said “and we’ve got the problem of those who are here without documents.” The Speaker added that the sooner immigration reform is passed “the better off the country will be.” (Id.)
Although the Speaker has refrained from pushing the Senate amnesty bill through the House this year, he has consistently voiced support for the provisions within it. In February, Boehner released the House GOP immigration “principles” which called for a large scale amnesty similar to the Senate Gang of Eight bill. (FAIR Legislative Update, Feb. 5, 2014) In March, Boehner reportedly told donors in a closed door meeting that he is “hellbent” on getting immigration done. (FAIR Legislative Update, Apr. 23, 2014) Then in April, the Speaker was caught on tape making fun of Republicans for refusing to take up amnesty legislation. (FAIR Legislative Update, Apr. 30, 2014)
Unfortunately, it appears that one of the Speaker’s key lieutenants is now on board with the Speaker. Representative Steve Scalise (R-LA), who became Majority Whip after the leadership shake-up this summer, has a new pro-amnesty advisor. The advisor and former lobbyist, John Feehery, is urging Republicans to pass amnesty if they win control of the Senate. In the piece, published in The Hill, Feehery writes, Republicans “should pass immigration reform, pronto,” claiming that amnesty will “make their brand more popular with non-Republicans.” (The Hill, Sept. 15, 2014)
The comments by both Boehner and Feehery shows a complete disconnect from voters. Indeed, House Majority Leader Eric Cantor (R-VA) was resoundingly defeated in the primary because his significantly underfunded opponent, Dave Brat, made Cantor’s amnesty support the central issue of his campaign. (See FAIR Legislative Update, June 18, 2014) Additionally, polling has consistently shown that likely voters support true immigration reform over amnesty favored by illegal alien activists and special interest groups. As recently as August, polls showed that 75% of respondents want more immigration enforcement, including 63% of Hispanics and over 50% of Democrats. (See FAIR Legislative Update, Aug. 26, 2014)
DHS Bows to ACLU in Class Action Settlement; Agrees to Let Deported Aliens Return
On August 28, a federal judge approved the settlement of a class action lawsuit the American Civil Liberties Union (ACLU) filed last year against the Department of Homeland Security (DHS). The ACLU filed the lawsuit on behalf of a class of deported illegal aliens in Mexico seeking to return to the United States. (Order, Aug. 28, 2014) The class consists of those deported aliens who, when arrested by immigration agents in Southern California, had agreed to return to Mexico rather than enter formal removal proceedings which would provide them with an opportunity to challenge their removal. (Settlement Agreement at p.5)
The settlement – stunningly proposed by the U.S. government — provides benefits for both deported illegal aliens and for aliens who face deportation in the future. First, it provides aliens in the class:
- The right to return to the United States.
- Exemption from the three and ten year bars upon reentry (which generally bar the admission of illegal aliens who have left the country and seek to return), and
- If they apply for DACA, a finding of continuous residence in the country (one of DACA’s requirements). (Order, Aug. 28, 2014; see Immigration and Nationality Act (INA) § 212(a)(9)(B))
To ensure that as many deported aliens as possible are allowed to return, the settlement requires a class action claims administrator to find eligible aliens through a $300,000 radio, online, and billboard advertising campaign in Mexico, half of which will come from DHS’ budget. (Settlement Agreement at p. 15, Ex. D)
Then, the settlement requires the Border Patrol in Southern California for the next three years to do the following upon apprehending illegal aliens:
- Read a specific script that advises illegal aliens of their “rights” to a hearing,
- Inform the illegal aliens of a toll free hotline that provides more advice,
- Provide the illegal aliens with a list of free legal service providers. (Order, Aug. 28, 2014, Settlement Agreement at pp.16-17)
To ensure “compliance” during this period, the settlement requires DHS to provide the ACLU quarterly reports that include actual files of Mexican nationals repatriated through this process of “voluntary return,” which is also sometimes known as “administrative voluntary departure.” (Id. at pp. 21-22) “Voluntary return,” is the process by which an illegal alien in the custody of an immigration agent admits to being present in the United States unlawfully and agrees to return home, instead of entering formal removal proceedings. (Id. at pp. 21-22; Order, Aug. 28, 2014 at p. 4; see INA § 240B; 8 U.S.C. § 1229c(a); 8 CFR § 240.25; and 8 CFR § 1240.26)
Finally, the settlement requires DHS to give the ACLU $700,000 in attorneys’ fees. (Settlement Agreement at p. 25)
Considering how far the government went in meeting the ACLU’s demands, one would imagine that the claims in the lawsuit were extraordinarily strong: however, analysis shows that it was the government’s concessions that were extraordinary. The ACLU based its lawsuit on factual claims that Border Patrol agents were “deceptive” in the information they provided when offering aliens the option of voluntary return, and that they were generally overly intimidating. (ACLU Complaint) DHS denied all of the allegations. (Settlement Agreement at p.2)
Nevertheless, the ACLU claimed that these “deceptive” acts violated Section 240B of the INA and the regulations which govern voluntary return. ( 8 CFR § 1240.26 and 8 CFR § 240.25) However, the ACLU’s complaint does not detail how the language in the statute or the regulations prohibits the alleged conduct by Border Patrol agents. (See ACLU Complaint) The most specific claim the ACLU makes is that agents’ use of a form that says “I wish to return to my country as soon as arrangements can be made to effect my departure,” violates the requirements that say that when offering voluntary return, the officer “shall specify the period of time permitted for voluntary departure.” (Id. at p. 11, 53; 8 CFR § 240.25(c))
The ACLU also claimed that the Border Patrol’s practices violate the Fifth Amendment of the U.S. Constitution. (Id. at pp. 55-57) The Fifth Amendment establishes rights against the government to those in criminal proceedings, as well as constitutional limits to acceptable police procedures. (See, e.g. Cornell Legal Information Institute)
Specifically, the ACLU objects that immigration agents do not similarly provide “Miranda-type advisals” to illegal aliens upon arrest. (ACLU Complaint at p.12) Yet to make such an argument is to accept the assumption that illegal aliens detained for removal proceedings should be entitled to protections equivalent to criminal suspects detained by law enforcement. However, removal proceedings are civil rather than criminal, meant merely to determine eligibility to remain in the country, rather than as punishment, and thus the array of Constitutional protections provided to criminal defendants do not automatically apply. (See, for example, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)) By filing this lawsuit (as well as many other similar lawsuits), the ACLU intends to blur that distinction.
Furthermore, in this case, the ACLU actually argues for procedural rights for illegal aliens that even go beyond those of American citizens encountering law enforcement officers. The Miranda warnings mandated by the Courts only require law enforcement officers to advise suspects of a limited number of rights, that is, the right to not to answer questions and to speak to an attorney. (See Miranda v. Arizona) They do not command officers to affirmatively provide “accurate and complete information” as to their legal situation, as the ACLU asserts immigration agents must do. (ACLU Complaint at p.16) Courts have never found the Constitution to require police to “supply a suspect with a flow of information to help him calibrate his self interest in deciding whether to speak or stand by his rights.” (See Colorado v. Spring, 479 U.S. 564, 570-571 (1987))
Yet, pursuant to the settlement, immigration officers must now explain to illegal aliens certain reasons why choosing voluntary departure would be detrimental to their interests and hand them a list of free legal service providers. (Settlement Agreement at pp.16-17) This kind of advice is more comparable to requiring police officers to hand out criminal attorney’s business cards and to hypothesize for the suspect multiple defenses they might raise than it is to providing Miranda warnings. Thus, effectively, the ACLU is arguing that immigration officers must give aliens more due process in advance of civil proceedings than even American citizens have when the subject of a criminal investigation.
Because the government chose to settle rather than litigate the case, however, no judge will ever weigh the credibility or legal validity of any of the ACLU’s claims. (Settlement Agreement at p.2) No one can appeal the settlement. Moreover, by actually proposing this settlement, the government has essentially nullified the few deportations it has carried through voluntary return and unquestionably limited the effectiveness of voluntary return in the future.
The Obama Administration’s choice to settle the lawsuit under these terms is even more disturbing when one considers the Administration had other options. For example, DHS could have, through the established rulemaking process, issued new rules for voluntary return. (See 5 U.S.C. § 553) However, by settling the lawsuit, the Administration avoided any accountability to the American people and instead chose to provide that accountability to the ACLU.
Although the agreement will be binding on DHS only in Southern California, Immigration and Customs Enforcement told reporters that the agency will adopt changes to the deportation process nationwide! (LA Times, Aug. 27, 2014) This tractability suggests that the role the government played in the lawsuit was more willing partner than adversary. Ironically, while no American citizen can object to the settlement, illegal aliens, as class members, do have the right to object to the “fairness, reasonableness, or adequacy” of their “relief.” (Settlement Agreement at p. 15)
Senator Coburn Criticizes ICE at Hearing on New Director Nominee
On Wednesday, the Senate Homeland Security and Governmental Affairs Committee questioned Sarah Saldaña, who President Obama nominated to be the new Director of Immigration and Customs Enforcement (ICE). (Dallas Morning News, Sept. 17, 2014; Dallas Business Journal, Sept. 17, 2014; see also FAIR Legislative Update, Sept. 2, 2014) Until now, President Obama has not attempted to fill the position of ICE Director since it became vacant at the end of July 2013, when former Director John Morton departed.
In a series of questions to Saldaña, Ranking Member Tom Coburn (R-OK) criticized ICE’s failure to enforce immigration laws. At the outset, Sen. Coburn declared, “the rule of law is not occurring at ICE today.” (Bloomberg Government Transcript, Sept. 18, 2014) Particularly, he condemned ICE’s release of 600 aliens who had significant criminal records in 2013, despite the Obama Administration’s stated priority to focus immigration enforcement on criminal aliens or aliens who pose a threat to national security. (See also ICE Inspector General’s Report, Aug. 2014; FAIR Legislative Update, Mar. 18, 2013) Coburn was alarmed that “nobody seems to know why, [and] nobody’s taken responsibility” for the release of these aliens. Additionally, Sen. Coburn criticized ICE for playing a “spin game” with deportation statistics by counting data differently, obscuring the fact that removals have decreased by twenty percent. (See also FAIR Legislative Update, Sept. 16, 2014)
Even Sen. John Cornyn (R-TX), who supported Saldaña’s nomination as director, expressed reservations about ICE. Cornyn characterized Saldaña as qualified to defend the rule of law, but added, “I’m concerned that if she is confirmed, her voice will be silenced or undermined by these unilateral actions that the president has said he intends to take.” (Bloomberg Government Transcript, Sept. 18, 2014) The ICE Director, said Cornyn, is “not going to be able to call all the shots from a policy standpoint.” (Id.)
In order to provide other Senators an opportunity to review the nomination, Sen. Cornyn asked Senate Homeland Security Chairman Tom Carper (D-DE) for Saldaña’s nomination to be sequentially referred to the Senate Judiciary Committee. Consideration by an additional committee could delay confirmation. Senators Cornyn and Chuck Grassley (R-IA), Ranking Member of the Judiciary Committee, formally delivered a letter requesting sequential referral on Tuesday. (Letter to Senator Leahy, Sept. 16, 2014) Senator Carper said that he would take that request under advisement with Coburn, and have a discussion with Sens. Cornyn, Grassley, and Patrick Leahy (D-VT) of the Judiciary Committee. A Democratic aide from the Senate Homeland Security Committee said that Carper would like Saldaña to be confirmed as soon as possible. (CQ News, Sept. 17, 2014)
Durbin Claims Amnesty Bill Could Have Mitigated the Ebola Crisis
At a Senate hearing last week, Senator Dick Durbin (D-IL) claimed that if Congress had passed the Senate amnesty bill (S.744), it could have mitigated the Ebola outbreak in West Africa. (Washington Times, Sept. 16, 2014) Durbin made the controversial comments at Tuesday’s joint hearing of the Senate Health, Education, Labor and Pensions Committee and Senate Appropriations Committee Labor, Health and Human Services, Education and Related Agencies Subcommittee. The hearing was entitled, “Ebola in West Africa: A Global Challenge and Public Health Threat.”
In his comments, Sen. Durbin, who coauthored S. 744, specifically highlighted Section 2317, an obscure provision of the Senate amnesty bill entitled “Global Health Care Cooperation.” This section waives the residency requirements that normally apply to green card holders who want to naturalize if the alien is a physician who serves in developing countries. (S. 744 § 2317 at p. 445) Because of this provision, Durbin said that “doctors in the United States would be able to serve in these crisis situations overseas without jeopardizing their immigration status.”
In addition, referring again to Section 2317, Durbin suggested that S.744 would not result in the “draining” of doctors or medical professionals from developing countries. He said, “If you are medically trained in Africa and promise to serve in Africa for a period of time before going anywhere else, we would honor that and respect that and not allow people to be recruited into the United States if they still had an obligation to their country,” said Durbin. In fact, Section 2317 only provides that aliens seeking to work in the U.S. as physicians are inadmissible unless they attest that they do not have prior agreements obligating them to work in their home country. (S. 744 § 2317 at p. 450) The Secretary of Homeland Security may waive this requirement if the alien experiences “undue hardship,” if the alien was coerced into the agreement, or if the home country agrees to release the alien from the agreement. (S. 744 § 2317 at pp. 451-452)
However, Sen. Durbin failed to disclose how the Senate immigration bill would encourage a massive “brain drain” of doctors from every corner of the globe by making their admission into the U.S. significantly easier. (See Houston Chronicle, June 19, 2013; American Medical News, Apr. 29, 2013) First, S. 744 would exempt all aliens who go to medical school in the U.S. (under the J-1 visa program) from the numerical caps placed on employment-based green cards. (S. 744, § 2307, p. 404-406) Then, S.744 specifies that foreign doctors entering U.S. to partake in residency or fellowship programs are eligible for green cards under the “advanced degree holder” category (EB-2) and increases the number of green cards allocated to that category by 40 percent. (S. 744, § 2307(c), p. 412 (amending INA § 203(b)(2)(A)))
DHS Secretary Refuses to Lift Ban on Libyan Pilots
Department of Homeland Security (DHS) Secretary Jeh Johnson announced last week that he intends to keep the ban on Libyan nationals from receiving visas to enter the U.S. for the purpose of attending flight school or studying nuclear science. Earlier this year the Obama Administration issued a final regulation that would lift the ban pending Secretary Johnson’s approval. (See FAIR Legislative Update, Sept. 16, 2014)
Secretary Johnson announced his decision during a House Homeland Security Committee hearing entitled, “Worldwide Threats to the Homeland.” Under questioning from Rep. Jason Chaffetz (R-UT), who coauthored a bill to prevent the ban from being lifted, Johnson said “I do not intend to lift that prohibition at this time.” (Bloomberg Government Transcript, Sept. 17, 2014; see Washington Times, Sept. 17, 2014)
Colorado DMV Overwhelmed by Illegal Aliens Seeking Driver’s Licenses
The Colorado Division of Motor Vehicles (“DMV”), which began granting driver’s licenses to illegal aliens in August, is overwhelmed by the unexpected high turnout of illegal alien applicants. Officials claim the chaos is caused by the underestimation of the demand and the cost of implementing the program by the Colorado Legislative Council staff. They now state it may take almost four years to grant appointments for all those currently seeking the special license. (Denver Post, Sept. 16, 2014)
Employed as professional counsel for members of the state legislature, the Legislative Council staff estimated the demand for the licenses based on data from the Pew Research Center and immigration data from neighbor states. (Denver Post, Sept. 16, 2014) “We just didn’t think demand was going to be this high,” said Chris Ward, fiscal note manager for the Colorado Legislative Council. (Id.) “We were providing the best estimate we could when the legislature needed it,” Ward said. Ward also commented that the underestimation of demand “would definitely affect the funding.” (Id.)
The staff’s underestimation, however, is not surprising given that states that grant driver’s licenses to illegal aliens have traditionally experienced a high incidence of illegal aliens from other states applying for a license. For example, auditors in New Mexico revealed that after the state began granting driver’s licenses to illegal aliens, many out-of-state residing aliens began fraudulently applying for the ID. (Fox News, Jan. 25, 2012) Between August 2010 and April 2011, 37 percent of the 16,000 foreign national requests driver’s licenses came from out-of-state, most from Arizona, Georgia, and Texas. (Id.)
In addition to the backlog of illegal alien applicants, the DMV mistakenly awarded over 500 illegal aliens valid licenses meant only for United States citizens or legal residents. (Denver Post, Sept. 12, 2014) Senate Bill “SB” 251, the 2013 bill that created the illegal alien driver’s license program, required illegal aliens to receive a special license, distinctive from those granted to citizens and legal aliens. Under SB 251, any license granted to an illegal alien must indicate on its face that the license may not be used for federal identification purposes, for voting, or to prove eligibility to receive public benefits. However, a glitch in the software used by the DMV resulted in the issuance of 523 valid driver’s licenses that appeared “identical” to licenses granted to only citizens and lawfully present residents. (Denver Post, Sept. 12, 2014) The licenses were invalidated over a month after issuance. (Id.)
Because of the high potential for fraud, granting driver’s licenses to illegal aliens without verifiable identification poses serious national security risks. Eighteen out of the nineteen 9/11 hijackers were in possession of at least one form of U.S. identification document. (9/11 Commission Report) Among them, the hijackers possessed over 30 state driver’s licenses from various states including Virginia, Florida, California, Arizona and Maryland. (Id.) These identity documents proved critical to the 9/11 terrorists overall travel strategy that included fraud in every aspect of their travel. (Id.)
After the first month of implementation, almost half of the applicants that applied for Colorado’s illegal alien license have been rejected for failure to meet the documentation requirements or for failure to show up for their interview appointment. (Denver Post, July 22, 2014) Senator Jessie Ulibarri, sponsor of SB 251, indicated that he is open to making changes to the law in the next legislative session, while officials from the Colorado Department of Revenue stated that they need more time to gather data before they can make requests for more funding. (Id.)