FAIR Legislative Update August 30, 2010
Homeland Security Begins Dismissing Certain Deportation Cases
The Houston Chronicle revealed this week that the Department of Homeland Security (DHS) is beginning to dismiss cases against certain aliens in deportation proceedings. According to The Chronicle, DHS is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records. The local Houston office of Immigration and Customs Enforcement (ICE) is reviewing 2,500 cases and other ICE offices around the country are expected to follow suit. (The Houston Chronicle, Aug. 24, 2010)
ICE spokesman Richard Rocha said the review is part of the agency's nationwide strategy to prioritize the deportation of criminal aliens—meaning illegal aliens who have committed additional criminal offenses and have been caught and prosecuted. While Rocha refused to give additional details, The Chronicle extensively quotes Raed Gonzales, an immigration attorney who was briefed on the effort by DHS’s deputy chief counsel in Houston, for more details on the new policy. According to Mr. Gonzales, DHS has confirmed that it's reviewing cases nationwide and it now has five attorneys assigned full time to reviewing all active cases in Houston's immigration court. DHS attorneys are conducting the reviews on a case-by-case basis, but are following general guidelines that allow for the dismissal of cases for defendants who have been in the country for two or more years and have no felony convictions. In some instances, defendants can have one misdemeanor conviction, but it cannot involve a DWI, family violence or sexual crime. (The Houston Chronicle, Aug. 24, 2010)
ICE has not yet officially confirmed or denied The Chronicle report, but it did release a memo dated August 20, 2010 that outlines a new policy for dismissing certain deportation cases. In the memo, ICE Director John Morton announces that in order to reduce the backlog of pending immigration cases, ICE will begin dismissing deportation cases of aliens who appear eligible to adjust their status to become a legal permanent resident as the family member of a citizen or legal permanent resident. ICE estimates that this policy shift will apply to 17,000 aliens in removal proceedings. The memo does not state that criminal convictions will automatically bar the dismissal of a case, but instead provides that certain adverse factors will weigh against dismissal, including “criminal convictions, evidence of fraud or other criminal misconduct, and national security and public safety considerations.”
This latest ICE memo comes on the heels of a U.S. Citizenship and Immigration Services (USCIS) memo leaked in early August that outlines how the Obama Administration intends to use administrative means to reduce the likelihood that illegal aliens would be removed from the U.S. (See FAIR’s Legislative Update, Aug. 2, 2010). With ICE’s latest move to dismiss deportation cases, it appears that the Obama Administration is continuing to expand the scope of its strategy.
Capturing 56 percent of the votes, Sen. John McCain claimed victory in Arizona’s Republican primary Tuesday. (NY Times, August 24, 2010). McCain, the well-known senior senator from Arizona and the Republican Party’s 2008 presidential candidate, defeated his major primary challenger, former Congressman J.D. Hayworth, in large part due to his recent shift away from his familiar pro-amnesty stance in support of an enforcement-first approach. McCain stopped promoting amnesty and instead touted his support for securing the border – including building a fence he once opposed. (The Hill, August 24, 2010). In fact, one of McCain’s most talked about campaign ads depicted McCain speaking to an Arizona sheriff about the necessity of completing “the danged fence.” (McCain’s Campaign Ad).
Several factors drove McCain – once the leading proponent of amnesty in the Senate – to adopt an enforcement-first position on immigration. The first was former Congressman Hayworth’s tough and well-known stance on immigration. In 2005, Hayworth published Whatever It Takes: Illegal Immigration, Border Security, and the War on Terror, outlining a plan for, and the reasons why, border security is a necessity. In addition to his book, Hayworth has advocated for his hard-line stance on immigration by authoring the Enforcement First Immigration Reform Act while in Congress, publishing numerous opinion pieces in newspapers across the country, and advocating for his position on immigration on his radio talk show. Hayworth made immigration a centerpiece of his campaign. Hayworth’s campaign website includes the following statement:
When John McCain proposed his Amnesty Plan—the Heritage Foundation said it would cost taxpayers $2.6 Trillion—J.D. Hayworth stood up and fought against it. Taking on a U.S. Senator with nearly 30 years of seniority took courage, but J.D. understood that our economy could not survive the long-term effects of the McCain-Kennedy plan, and that encouraging millions of people to break our laws was a recipe for disaster.
As Hayworth turned up the heat on McCain’s support for amnesty, McCain realized that he had to shift closer to Hayworth on immigration to please primary voters.
The second factor behind McCain’s shift was the growing problem of illegal immigration in Arizona and the passage of Senate Bill 1070. Despite his attempt to remain silent regarding the bill, McCain was effectively forced to discuss his position on Arizona’s immigration law if he wanted to maintain his Senate seat. For example, “In March, just after the Arizona state legislature passed its controversial immigration bill, a spokesperson for McCain said the senator would not take a position on it because ‘It's a state issue.’” (ABC News, May 11, 2010). However, following criticism from Hayworth over his lack of support for the bill, McCain quickly offered his support for it on the Senate floor, arguing that the situation in Arizona “is the worst [he has] ever seen and it’s time for the federal government to act.” (ABC News, May 11, 2010;ABC News Video Clip, April 26, 2010).
Finally, the third factor influencing McCain to take a more enforcement-first position on immigration was public opinion. Polls conducted by Rasmussen in April 2010 revealed that 70 percent of Arizonans support Senate Bill 1070, while a mere 23 percent oppose it. (Rasmussen Reports, April 21, 2010). An even greater percentage of Arizonans, 83 percent, stated that a candidate’s position on immigration is an important factor in how they will vote. (Rasmussen Reports, April 21, 2010). Polling data also suggests that McCain’s shift helped him gain the votes he needed to defeat Hayworth. For instance, Rasmussen reports showed McCain leading Hayworth by a mere seven and five percentage points during the months of March and April, respectively. McCain then began speaking in favor of SB 1070 and in early May, a few weeks later, McCain aired his “danged fence” campaign ad. Subsequently, Rasmussen polls showed an increase in support for McCain, increasing his lead to 12 percent and double-digits for the first time. (Real Clear Politics, August 25, 2010).
Nonetheless, throughout the campaign, McCain’s staff has denied that McCain has flip-flopped on immigration. In particular, Spokeswoman for McCain, Brooke Buchanan, has denied that his “complete the danged fence” ad was a change in McCain’s immigration position. According to Buchanan, “Sen. McCain has consistently called for and introduced legislation mandating fencing, both physical and virtual, as key elements in the comprehensive approach to secure our southern border as far back as 2007 and as recently in the 10-point border security planSenators McCain and Kyl introduced last month.” (ABC News, May 11, 2010).
Today FAIR is releasing our 2010 Voting Report to give our members insight into how their lawmakers have tackled the complex and thorny issue of immigration. FAIR’s Government Relations team assembles this report every two years, as each Congress comes to a close, by sifting through numerous immigration votes and determining which ones were most important with respect to promoting good immigration policy.
The inescapable conclusion from this year’s report is that House Speaker Nancy Pelosi kept her commitment to vulnerable House Democrats that they would not have to vote on controversial matters unless the Senate acted first. Speaker Pelosi made this commitment in 2009 and specifically singled out immigration as an issue that the Senate must address first. (See The Hill, Dec. 16, 2009). The House votes in our Voting Report reflect this. We chose only two votes, one relating to federal lands and the other relating to health care. While the Senate did not vote on amnesty legislation during the 111th Congress, it did take numerous votes on other immigration issues. The subject of the votes varied from border security to E-Verify to the census.
We encourage all of our members to review the Voting Report and learn more about how their lawmakers are representing them. You can access the Report here.