Legislative Update: 9/9/2014
On Saturday, President Obama announced that he will delay taking unilateral action to grant amnesty until after the November elections. The White House justified the decision in an official statement sent to CQ Roll Call stating:
“The reality the President has had to weigh is that we’re in the midst of the political season, and because of the Republicans’ extreme politicization of this issue, the President believes it would be harmful to the policy itself and to the long-term prospects for comprehensive immigration reform to announce administrative action before the elections… Because he wants to do this in a way that’s sustainable, the President will take action on immigration before the end of the year, “the statement insists.” (Roll Call, Sept. 6, 2014)
The decision to abandon the plan for executive action before the end of summer came less than 24 hours after the President declared that he was going to act “soon.” (The Hill, Sept. 5, 2014)
On Sunday, President Obama appeared on Meet the Press to defend his decision. “The truth of the matter is — is that the politics did shift midsummer because of [the unaccompanied minors] problem,” Obama said. (See NBC News, Sept. 6, 2014; video of the interview available here) The President also claimed he needed more time to convince the American people of the merits of his administrative amnesty. “I want to spend some time, even as we’re getting all our ducks in a row for the executive action, I also want to make sure that the public understands why we’re doing this, why it’s the right thing for the American people, why it’s the right thing for the American economy.” (Id.) Yet, recent polls show that 75 percent of Americans favor more immigration enforcement and reduced levels of immigration over amnesty. (See FAIR Legislative Update, Aug. 26, 2014)
True immigration reformers blasted the President’s decision to delay action until after the November elections as a political stunt meant to keep the Senate’s Democratic majority. Senator Jeff Sessions (R-AL) said, “President Obama’s announcement that this would come only after the midterm elections is of course an attempt to protect the Senate Democrat incumbents who have enable President Obama’s lawless immigration decrees every step of the way.” (Sessions Press Release, Sept. 6, 2014) Similarly, Rep. Lamar Smith stated, “The White House’s decision to delay executive action on immigration until after the election is an open admission that the president intends to take actions that the majority of Americans oppose,” charged Rep. Lamar Smith (R-TX). (Smith Press Release, Sept. 6, 2014)
House GOP leadership’s criticism of the President focused on the politics behind the delay. “There is never a ‘right’ time for the president to declare amnesty by executive action,” Speaker John Boehner (R-OH) said in a statement, “but the decision to simply delay this deeply-controversial and possibly unconstitutional unilateral action until after the election — instead of abandoning the idea altogether — smacks of raw politics.” (Boehner Press Release, Sept. 6, 2014) Likewise, House Majority Whip Steve Scalise (R-LA) said, “The president needs to abandon his attempt to issue blanket amnesty by executive order” and “stop using immigration as a political tool during election time.” (Scalise Press Release, Sept. 6, 2014)
Predictably, pro-amnesty groups were outraged by President Obama’s decision to not delay deportations now. “We are bitterly disappointed in the president and we are bitterly disappointed in the Senate Democrats,” lamented Frank Sherry, executive director of America’s Voice. (Associated Press, Sept. 6, 2014) Cristina Jimenez, managing director of United We Dream, complained that the decision was “another slap to the face of the Latino and immigrant community,” adding that amnesty advocates have “received nothing but broken promises and a lack of political backbone.” (Id.) Additionally, Arturo Carmona, director of Presente.org, called the delay a “betrayal” and one of the “single biggest attacks on Latino families by the Democratic Party in recent memory.” (The Hill, Sept. 6, 2014)
MPI: Executive Actions Could Amnesty 8.5 Million
On Thursday, the Migration Policy Institute (MPI) published a new report estimating that up to 8.5 million illegal aliens could be amnestied by executive actions currently being considered by President Obama. (See MPI Report, Sept. 2014) MPI considered possible changes to the Deferred Action for Childhood Arrivals program (DACA), the creation of new deferred action programs, and the expansion of the President’s non-enforcement policies.
According to MPI, President Obama could with the stroke of a pen nearly triple the number of aliens eligible for the Deferred Action for Childhood Arrivals (DACA) program by expanding eligibility criteria. The DACA program grants a two-year reprieve from deportation and work authorization to aliens who:
- Were under the age of 31 as of June 15, 2012;
- Came to the U.S. before reaching their 16th birthday;
- Have continuously resided in the U.S. since June 15, 2007;
- Have been physically present in the U.S. on June 15, 2012, and at the time of application;
- Had no lawful status on June 15, 2012;
- 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;
- 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
- Are at least 15 years or old at the time of application.
Of these criteria, MPI made calculations related to the year of arrival, age at arrival, maximum age, and education. MPI found that requiring illegal aliens to have lived in the United States since the year 2011 (instead of the year 2007) could expand the program to 90,000 more illegal aliens. (MPI Report at p. 3) Changing the minimum age at arrival from 16 to 18 could make DACA available to 180,000 more illegal aliens. (Id.) Eliminating the maximum age of 30 could amnesty 200,000 additional illegal aliens. (Id.) Completely ending the education requirement would make 430,000 more illegal aliens DACA-eligible. (Id.; but see FAIR Legislative Update, June 11, 2014 (noting that the Administration has already weakened this education requirement)) Notably, MPI points out that making all four of these changes to criteria could turn DACA from a program applying to a population of one million to an even broader amnesty for three million. (MPI Report at p. 3)
According to MPI, a new deferred action policy for illegal aliens who have lived in the United States for at least five years — i.e., aliens who have avoided deportation under the President’s non-enforcement policies — could apply to 8.47 million people. (Id. at p. 4) This represents 81% of the illegal alien population, excluding those who are DACA-eligible. (Id.) Longer residency requirements would still impact millions, as MPI estimates approximately 5.74 million illegal aliens have lived in the U.S. for 10 years and 3.03 million lived in the U.S. for at least 15 years. (Id.) MPI also examined other proposals that could grant amnesty to several million based on family ties. For example, amnestying illegal alien parents or spouses of U.S. citizens, DACA recipients, and legal permanent resident holders would target a population of 4.25 million. (Id.)
In addition to granting deferred action, MPI also examined how many illegal aliens could have escaped deportation if the Bush and Obama Administrations had gutted immigration enforcement programs from the years 2003 through 2013. The report indicated that illegal aliens could have avoided 538,000 deportations (some involving multiple deportations of the same illegal alien) if the President stopped deporting those who have convictions for violent crimes, those here less than a year, and those with removal orders under 10 years. (Id.)
The report was co-authored by Marc. R. Rosenblum, who served on President-elect Obama’s Immigration Policy Transition Team in 2009. (Id. at p. 12) MPI is staffed with others who have worked on immigration policy in the government, such as the Director of MPI’s U.S. Immigration Program Doris Meissner, who was director of the Immigration and Naturalization Service under President Bill Clinton. (See MPI biography of Meissner ) Notably, the report did not tackle the President’s legal authority for administratively amnestying millions of illegal aliens and ignoring statutory mandates for the Department of Homeland Security to inspect and place into removal proceedings aliens who cannot clearly demonstrate they are admissible.
Congress Returns to Tackle Government Funding
Congress returns this week from its August recess with few legislative working days remaining before the November elections. The top agenda item for both chambers is passing legislation to extend funding for the government beyond the fiscal year (which ends September 30) to avoid another government shutdown. It is widely expected that Congress will pass a three month funding extension of current funding levels, known as a continuing resolution (CR), rather than tackling the more difficult task of passing an appropriations bill for all of fiscal year 2015.
At this point it is uncertain whether Congress will address the flood of illegal alien minors crossing the Southern border in the funding bill. House GOP leadership seems intent on moving an uncontroversial “clean” CR, meaning it maintains current funding levels across the board. Indeed, the memo House Majority Leader Kevin McCarthy (R-CA) sent his GOP colleagues on the September agenda states that the House will pass a CR “that will continue government operations as they are on September 30th into the new fiscal year.” (See Breitbart, Sept. 4, 2014) Similarly, Senate Democrats appear poised to maintain funding levels so they can focus on other issues. “Look, I think the fact that Republicans are wary of a shutdown makes the chances of passing a [CR] more likely,” said Sen. Chuck Schumer (D-NY), the third ranking Senate Democrat. (Politico, Sept. 7, 2014)
The White House is sending mixed signals about what it wants in the CR. Initially, aides told Bloomberg News that the President is not seeking additional funding, known as “anomalies,” to address the surge of unaccompanied minors crossing the border despite requesting $3.7 billion for the border crisis back in July. (Bloomberg BNA, Sept. 4, 2014; see FAIR Legislative Update, July 15, 2014) Then, on Friday, the Office of Management and Budget released a list of “anomalies” that includes a request for extra flexibility for immigration-related agencies, including Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the Department of Justice’s Executive Office for Immigration Review. (CQ Today, Sept. 5, 2014)
Both chambers are expected to move the CR this week so they can have more time for campaigning. According to leadership aides, the House is expected to adjourn on September 19 and the Senate on September 23 so all Members of Congress can return home to focus on re-election. (Politico, Sept. 7, 2014)
13 Years After 9/11, Security Gaps Exploited by Terrorists Still Wide as Ever
As the thirteenth anniversary of the September 11th terror attacks approaches, an ABC News Investigation reveals that the Department of Homeland Security (DHS) has lost track of more than 6,000 foreign nationals who have overstayed their student visas and disappeared. (ABC News, Sept. 2, 2014) This investigation highlights how DHS has failed to fix the security gaps in the student visa program, even after it was discovered that one of the 9/11 hijackers was in the U.S. on a student visa. Indeed, one of the key recommendations of the bipartisan 9/11 Commission was to fix the student visa program. (Id.; see also the 9/11 Commission Report)
The investigation found the rapidly increasing number of foreign students entering the United States on student visas, now more than a million per year, has overwhelmed DHS’ ability to monitor the entrants. (ABC News, Sept. 2, 2014; see also FAIR Legislative Update, Nov. 25, 2013) Immigration and Custom Enforcement (ICE)’s own figures show that 58,000 students overstayed their visas last year. (ABC News, Sept. 2, 2014) The agency considers 6,000 of these to be of heightened concern, but ICE agents have been unable to locate them. (Id.) As Senator Tom Coburn (R-OK), ranking member of the Committee on Homeland Security and Governmental Affairs, told reporters: “They get the visas and just disappear.” (Id.) Once the student arrives in the Unites States, it is up to the school to keep track of the visa holder’s location and report to the government if they repeatedly miss class. (Id.; see INA § 101(a)(15)(F)(i) and § 101 (a)(15)(M)(i))
Colleges, universities, and vocational schools must apply for permission from the government before they can accept foreign students. (See Immigration and Nationality Act (INA) § 101(a)(15)(F)(i) and § 101(a)(15)(M)(i); 8 CFR 214.3) They do so by filing a certification petition through the US Immigration and Customs Enforcement (ICE) website. (Ice.gov) A school must be able to establish that it: 1) is a bona fide school, 2) is an established institution of learning or other recognized place of study, 3) possesses the necessary facilities, personnel, and finance to conduct instruction in recognized courses, and 4) is in fact engaged in instruction in those courses. (8 CFR 214.3(a)(3)(i))
Despite the stunning number of overstays, the government allows over 9000 schools to give visas to foreign students, many of which have proved unable or unwilling to fulfill their responsibility to ensure students are not abusing the program. (ABC News, Sept. 2, 2014) ABC News notes that the government has approved not just prestigious universities offering rigorous courses of study, but also schools whose programs offer instruction in a host of non-academic activities. (Id.) For example, 86 beauty schools, 36 massage schools, and nine schools that teach horse shoeing are on the list, and foreign students can enter on a student visa (which are uncapped in number) to focus on such pursuits as hair-braiding, tennis, or golf. (Id.) According to Senator Coburn, the primary function of many of these programs is selling visas, not education. (Id.) Janice Kephart, counsel to the 9/11 Commission, explained that such schools are dangerous to national security, for they enable “terrorists to come here under a fraudulent basis and disappear into the fabric of society without anybody knowing that they are here for an illegitimate reason.” (Id.)
Not only does the government recklessly approve “schools” to give visas to foreign “students” in the first place, it also fails to remove schools from the approved list even given strong evidence they are not legitimate. (Id.) For instance, last May five top officials of Micropower Career Institute, a school licensed by the state of New York, were indicted for visa fraud, yet the school has not lost its approval. (Id.) When asked why, Peter Edge, deputy associate director for Homeland Security Investigations, said the agency has no choice but to continue to allow Micropower to facilitate student visas because “everyone has due process.” (Id.) Yet, to the contrary, the INA does not force DHS to give schools an extended process before losing approval but rather states that if a school fails to “promptly” report when each foreign student fails to attend, the school’s approval “shall be withdrawn.” (See INA § 101(a)(15)(F)(i) and § 101 (a)(15)(M)(i))
Furthermore, because the Administration has also refused to implement a biometric entry exit system, even though one is required by law, once DHS has lost track of a student visa holder, it has no way to know if the student is still in the country. (See FAIR Legislative Update, Nov. 20, 2013)
Pew: Illegal Aliens Becoming Long-Term Residents under Obama Administration
Last week, the Pew Research Center released new data showing that illegal aliens in the U.S. are becoming long-term residents under the Obama Administration. (Pew Research Center, As Growth Stalls, Unauthorized Immigrant Population Becomes More Settled, Sept. 3, 2014) Specifically Pew estimates that in 2013, 61 percent of the illegal alien population had lived in the U.S. for over 10 years and that the median duration of illegal residence was 13 years. (Pew at 5-6) In contrast, in 2008 approximately 48 percent of the illegal alien population had lived in the U.S. for over 10 years and the median duration of illegal residence was 9 years. (Id.)
Pew suggests that the reason for the “aging” of the illegal alien population is that the illegal alien population has “stabilized.” (Pew at 4) Over the past five years, Pew notes, the illegal alien population has hovered between 11.2 and 11.5 million. And, in the most recent year listed, 2013, Pew estimates that the illegal population is 11.3 million, up slightly from 11.2 million in 2012 (although note Pew revised this downward from an initial estimate of 11.7 million). (Pew at 6) Pew concludes, “The marked slowdown in new arrivals means that those who remain are more likely to be long-term residents, and to live with their U.S.-born children.” (Pew at 4, 6)
While there may have been a drop in new arrivals at the start of the great recession, another factor that could explain the aging of the illegal alien population is that the Obama Administration has gutted interior enforcement and focused what enforcement efforts remain on newly arriving aliens. (See Morton Memo, Priority 2, Mar. 2, 2011) Indeed, while apprehensions under the Obama Administration initially plummeted, they have increased steadily since FY 2011. (Customs and Border Protection apprehension data) Moreover, in the past couple of years, expedited removal has significantly increased as a portion of the number of removals. (ICE Removal data, FY 2012)
While not overtly stated, the purpose of the Pew study seems to be providing a statistical analysis for President Obama’s forthcoming executive action. Aside from duration of residence, the Pew study segments the illegal population into other categories of aliens who may receive amnesty under the President’s orders. For example, Pew estimates that approximately 3.7 million illegal alien adults who are not DACA beneficiaries live with their U.S.-born children. (Pew at 7) Pew also estimates that another 5.9 million illegal alien adults are not living with U.S.-born children. (Id.)
Finally, the Pew Report notes that the immigration debate “has been complicated” by the surge of illegal alien minors over the Southern border. (Pew at 9) Comparing the first three quarters of 2014 to the first three quarters of 2013, it notes that the number of illegal alien minors entering the U.S. increased a stunning 88 percent. In a poll of 1,500 adults Pew conducted in late August, it found that 33 percent of respondents said that the priority of immigration policy should be on enforcement; 23 percent said a path to citizenship should be the priority; and 41 percent said both enforcement and a path to citizenship should get equal priority. (Pew at 10) This represents an increase of those who prioritize enforcement from poll results in 2013, which showed 25 percent favored enforcement. (Id.)
Summer Surge of Illegal Alien Minors Will Cost Local School Districts Millions
As parents and children around the country are preparing to start the new school year, many public schools are struggling to accommodate the recent surge of illegal alien minors into their classrooms. (NBC Bay Area, Aug. 13, 2014; USA Today, Aug. 11, 2014) FAIR estimates the crisis will cost taxpayers over $761 million dollars this year alone to educate the recent surge of illegal alien minors in public schools around the country. (FAIR Cost Study)
FAIR’s estimate begins with the official number of new illegal alien students. According to the United States Department of Education, there will be almost 37,000 “unaccompanied” alien minors enrolling in public school in the United States this fall. (U.S. Department of Health and Human Services; CNS News, Aug. 14, 2014) These kids will require special Limited English Proficient (“LEP”) classes conducted in Spanish, or in other languages indigenous to Central America, as well as other taxpayer funded services, such as free and reduced school meals. The per pupil cost for unaccompanied minors is likely to be even higher than the average LEP student, since the recent illegal aliens of school age who came in the recent surge have had little to no previous schooling.
Taxpayers in New York, Texas, and Maryland, who are hosting the largest number of unaccompanied alien minors, will be hit with the heftiest bills, with costs estimated to be over $147 million, $77 million, and $67 million, respectively. (FAIR Cost Study) Education costs for the next school year are expected to rise as more “unaccompanied” alien minors illegally cross the border and are released to relatives and foster homes around the country.