FAIR Legislative Update December 10, 2012
A bipartisan working group to negotiate amnesty legislation has formed behind closed doors in both the Senate and House of Representatives, Capitol Hill news outlets began reporting last week. (Roll Call, Dec. 3, 2012; POLITICO, Dec. 7, 2012)
In the Senate, sources say the working group consists of Republican Sens. Lindsey Graham (SC), Mike Lee (UT), John McCain (AZ), and Sen.-elect Jeff Flake of Arizona. The Democratic Senators include Sens. Chuck Schumer (NY), Dick Durbin (IL), Michael Bennet (CO), and Bob Menendez (NJ). (POLITICO, Dec. 7, 2012)
These Senators have long been vocal on the immigration issue. Sens. Graham and Schumer, for example, have teamed up over the years to introduce comprehensive immigration reform legislation. (Id.) Schumer has also teamed up with freshman Lee to propose legislation that would to allow foreign investors to buy their way into a green card. (Id.)
Senator-elect Flake also has a history of supporting amnesty legislation while in the House, crafting a bill with outspoken amnesty advocate Rep. Luis Gutierrez (D-IL). Sens. Durbin and Menendez, have also long been champions of the DREAM Act, and Sen. McCain, despite his talk of enforcement during his 2010 reelection bid, has been on the amnesty bandwagon for years. (Id.)
Unlike the Senate working group, the exact composition of the working group in the House is unknown. (Roll Call, Dec. 3, 2012) Those with knowledge of the House negotiations are keeping the information close to their vests. "I can't discuss that," Rep. Zoe Lofgren (D-CA), the ranking member on the House immigration subcommittee told Roll Call when asked about the working group. (Id.) "It's not a secret that there have been confidential discussions, [but] if I discuss it, they will no longer be confidential." (Id.)
But despite these attempts to keep negotiations secret, Rep. Luis Gutierrez (D-IL), and ardent amnesty advocate, is anticipated to be one of the major negotiators for the Democrats. Moreover, Gutierrez has indicated that several Republicans, including Senator Marco Rubio (R-FL) and Reps. Paul Ryan (R-WI) and Raul Labrador (R-ID) have reached out with him to discuss amnesty legislation. (POLITICO, Dec. 5, 2012; The Hill, Dec. 8, 2012) But Labrador, a rising Republican and immigration attorney, declined to discuss the working group when asked. "I've been doing this [immigration] behind the scenes for two years, and now obviously it's a golden opportunity to start being a little more public about it," he said. (Id.) Finally, incoming Judiciary Chairman Bob Goodlatte (R-VA), who has long supported immigration enforcement, will likely influence any negotiations in the House, although House Speaker John Boehner (R-OH) and Majority Leader Eric Cantor (R-VA) will ultimately have the final say on which bills, if any, advance to the floor.
Last week, California Attorney General Kamala Harris issued an information bulletin stating that local agencies have no obligation to honor detainers issued by U.S. Immigration and Customs Enforcement (ICE). (Information Bulletin, Dec. 4, 2012; Associated Press, Dec. 4, 2012; Los Angeles Times, Dec. 5, 2012) In doing so, Attorney General Harris effectively gave legal cover to sanctuary cities that would rather protect criminal aliens from deportation than ensure the safety of their own communities.
ICE issues detainers when it becomes aware, usually through digital fingerprinting or interviews conducted by federal agents, that a local agency has custody of an alien it wants to remove. However, sanctuary cities are now arguing they have no obligation to honor these detainers due to a contradiction in federal regulations regarding detainers. More specifically, one paragraph of the relevant rule describes detainers as a "request" from the federal immigration authorities to local law enforcement agencies to hold an alien until ICE can take custody of the individual and begin removal proceedings. (8 C.F.R. 287.7(a)) However, another paragraph requires local law enforcement agencies to hold and alien for up to 48 hours upon ICE's issuance of a detainer. (8 C.F.R. 271(d))
In the past, this distinction was irrelevant as local law enforcement agencies routinely honored detainers whether they considered doing so a courtesy or obligation. But in the past two years, amnesty advocates have complained bitterly that ICE is deporting illegal aliens who are booked in jails for other crimes and have increased their pressure on local law enforcement agencies to ignore ICE detainers. If a law enforcement agency does not honor the detainer and transfer custody, it releases the alien onto the street. (See, e.g., FAIR Legislative Update, Sept. 24, 2012)
Unfortunately, as she released the bulletin, Attorney General Harris — California's top prosecutor — showed little concern for the enforcement of U.S. immigration law. She could, for example, have issued an opinion that detainers are optional but still encouraged local law enforcement agencies to honor them as a good law enforcement practice. Instead, however, she criticized Secure Communities, the fingerprinting program run by the Department of Homeland Security (DHS), and encouraged local agencies to make decisions using their own discretion. (Information Bulletin, Dec. 4, 2012; Los Angeles Times, Dec. 5, 2012)
Moreover, the timing of Harris's new law enforcement bulletin is not by accident. It comes barely two months after Governor Jerry Brown vetoed legislation that would bar local law enforcement agencies from honoring ICE detainers in most cases, and in serious or violent cases, would give locals discretion to ignore them. (See FAIR Legislative Update, Oct. 2, 2012) At her press conference Tuesday, Harris said she too had opposed that bill because it went "too far," but looked forward "to working with the governor and any of our lawmakers to take a look at what we can do to improve consistency." (Los Angeles Times, Dec. 5, 2012)
Amnesty advocates were gleeful. On Tuesday, the Los Angeles sheriff's spokesman called Harris' opinion welcome guidance that may offer sheriffs more flexibility in how they deal with immigration detainees. (Los Angeles Times, Dec. 4, 2012) "The sheriff applauds it and is grateful for it." Similarly, Reshma Shamasunder, executive director of the California Immigrant Policy Center, said Harris's statement should eliminate any doubt sheriffs have about the legal force of detainers. "The only logical next step," she said, "is a strong, statewide standard that limits these burdensome requests." (Id.)
In contrast, ICE offered little in terms of a response to Harris' announcement. An ICE spokeswoman reiterated that the agency's top priorities are the deportation of criminals, recent border-crossers and repeat violators of immigration law, and said "[t]he federal government alone sets these priorities and places detainers on individuals arrested on criminal charges to ensure that dangerous criminal aliens and other priority individuals are not released from prisons and jails into our communities." (Id.)
Last Wednesday, Senate Democrats blocked Republicans' attempt to vote on H.R. 6429, Rep. Lamar Smith's STEM (Science, Technology, Engineering, and Mathematics) bill to eliminate the visa lottery and shift those green cards to foreign graduates of U.S. universities in advanced STEM programs. The bill would also create a new student visa program to allow an unlimited number of foreign students to attend U.S. universities and major in STEM fields. (CQ Roll Call, Dec. 5, 2012; see also FAIR Legislative Update, Nov. 26, 2012)
Ignoring the impact this increased competition would have on an already depressed labor market, incoming Senate Minority Whip John Cornyn (R-TX) requested the bill be considered via unanimous consent. "Our competitors abroad are observing this brain drain that America is experiencing and they are taking advantage of it. In a global economy they are more than happy to take the best and the brightest foreign students who come and train in the United States….," Cornyn remarked on the Senate floor. (See Congressional Record, Dec. 5, 2012)
Immigration Subcommittee Chair Chuck Schumer (D-NY), however, objected to the unanimous consent request, arguing that STEM green cards should not be created at the expense of the visa lottery. "[Republicans] could not pass a plain bill that just added STEM visas. They had to take away other visas that my colleague from Texas does not like, but many people do," Schumer stated. (Id.) Rather, Sen. Schumer sought unanimous consent for his own legislation, S. 3553, which adds STEM visas without eliminating the visa lottery. Likewise, Sen. Cornyn, objected to that request.
Democratic opposition to H.R. 6429 comes from the top down. Last week the White House issued a statement opposing the bill, stating that the Administration would not support piecemeal immigration legislation that does not include an amnesty. Immigration legislation must be "comprehensive" and include "important priorities such as establishing a pathway for undocumented individuals to earn their citizenship," the statement reads. (See Statement of Administration Policy, H.R. 6429, Nov. 28, 2012)
This last week, at a series of seemingly coordinated appearances and conferences, a slew of open borders Republicans spoke out in support of amnesty for illegal aliens and increased immigration to the United States.
First, former President George W. Bush made a rare public appearance Tuesday to give a speech at the Dallas Federal Reserve's Immigration and Economic Growth Conference. (New York Times, Dec. 4, 2012) "Growing up here in Texas," the 43rd President told the crowd, he had the privilege of meeting the "newly-arrived." (See Fox News Insider Transcript, Dec. 4, 2012) He cautioned that as elected officials address the immigration issue, they should do so with the "benevolent spirit" and "contributions" of immigrants in mind. (Id.) Reflecting on his own immigration agenda as President, Bush told the audience that immigrants fill a gap in the labor market and can help build America's future. (Id.) The former President pushed for amnesty legislation in 2006 and 2007, but his efforts ultimately failed in Senate.
That same day, the National Immigration Forum (NIF) — one of the largest pro-amnesty organizations — kicked off a two-day "national strategy session" in Washington, D.C. to bring members of faith, law enforcement, and business communities together to fight for their mutual interests in getting an amnesty bill passed. (NIF Press Release, Dec. 4, 2012) Calling their movement, "Bibles, Badges and Business," the strategy session consisted of panels of leaders from the Midwest, South, and Mountain West regions to discuss their perceived importance of immigrants and immigration to their communities. (Id.)
Attendees of the NIF conference included outspoken amnesty advocates Utah Attorney General Mark Shurtleff, Americans for Tax Reform President Grover Norquist, and Sojourners CEO Jim Wallis. (See List of NIF Host Committee Members) Wallis and other Evangelical leaders recently called on Congress and President Obama to pass amnesty legislation within 92-days, symbolic of the number of times "immigrant" is mentioned in the Bible. (Los Angeles Times, Nov. 13, 2012)
In addition, failed GOP presidential candidate Rick Santorum, who had opposed amnesty during the 2012 Republican primaries, also felt the need to chime in that day on immigration reform. "If it wasn't for immigration, our country would be declining in population. It's very hard to have economic growth and a forward-looking country that is declining in population," he told inside the Beltway publication POLITICO. (POLITICO, Dec. 5, 2012) "You can't be hostile on the issue of immigration, which I am not. You have to understand the values of immigrants who come to this country," he continued. (Id.)
The cries for comprehensive immigration reform from these open borders Republicans comes in the aftermath of Republicans' inability to win the White House or Senate in 2012. Amnesty advocates are seizing on this failure as an opportunity to push their agenda in a time of uncertainty within the GOP. They argue that an amnesty is necessary if Republicans are to win in future elections given that President Obama won 71 percent of the Latino vote in the last election. However, several opinion polls taken before the election show that jobs and the economy — not immigration — were the number one issues driving Latinos to polls this November, making passage of amnesty legislation a false solution to Republicans' problem of failing to attract Latino voters. (See FAIR 2012 Election Report)
Last week, the Illinois Senate approved a bill (SB 957) that would allow as many as 250,000 illegal aliens to receive an Illinois driver's license. (Chicago Tribune, Dec. 4, 2012); see also Chicago Tribune, Nov. 30, 2012). The bill breezed through committee by a vote of 12-2, it then passed the full Senate on December 4, 2012 by a vote of 41-14.
After passage in the Senate, SB 957 is now awaiting action in the House, where it has been assigned to the Transportation: Vehicles and Safety Committee. To obtain a so-called "temporary" driver's license under the bill, an alien need only have lived in Illinois for a year and may establish his or her identity using a consular ID or foreign passport. (See FAIR Legislative Update, Dec. 3, 2012).
Some of Illinois' most prominent political leaders are pushing for passage of the bill as a way to "make the state's road's safer." (NBC Chicago, Nov. 20, 2012). Those in favor of providing illegal aliens with driving privileges include Governor Pat Quinn, Chicago Mayor Rahm Emanuel, Senate President John Cullerton, House Republican Leader Tom Cross, and former governors Jim Edgar and James Thompson. (Huffington Post, Nov. 30, 2012).
Opponents argue granting driver's licenses to illegal aliens in no way guarantees safer roads or that they will purchase insurance. (International Business Times, Dec. 7, 2012). "There is no evidence to suggest that people who are already inclined to disobey laws they find inconvenient and who, in many cases have few assets to protect, are going to purchase insurance just because they have licenses," said FAIR President Dan Stein. (Id.; see also FAIR Press Release, Dec. 7, 2012). To back up his claim, Stein points to New Mexico who grants driver's licenses to illegal aliens and is home to the nation's second highest percentage of uninsured drivers. (Id.; see also Insurance Research Council, Apr. 21, 2011).
If SB 957 becomes law, Illinois would be one of three states that provide driver's licenses to illegal aliens — along with New Mexico and Washington State. California also recently passed a law to allow illegal aliens who are granted deferred action under the Obama Administration's Deferred Action for Childhood Arrivals (DACA) program to obtain California driver's licenses. (FAIR Legislative Update, Sept. 4, 2012; California AB 2189).
The Illinois House final action deadline for SB 957 is January 8, 2013.
Residents of Chino Hills, California protested a "maternity mansion" located in their neighborhood last week, shining a spotlight on the growing trend of birth tourism. Housed inside this and similar mansions, also called "maternity hotels," are covert businesses which exist solely to recruit non-immigrants to the United States to give birth to children on U.S. soil so they can obtain U.S. citizenship.
The mansion in Chino Hills is one of many facilities that exist for this purpose — its owners even operate another similar facility in Anaheim, and dozens more can be found in local Chinese phone books. (CBS-Los Angeles, Dec. 1, 2012; see also LA Times, Dec. 4, 2012) For a hefty fee ranging from $5,000 to $15,000, women from China and Taiwan are provided with food, lodging, transportation, and prenatal services. (ABC News, Nov. 30, 2012; see also LA Times, Dec. 4, 2012)
Local Chino Hills authorities, however, have refused to address the maternity operation, focusing instead on code violations. (FOX News, Dec. 2, 2012) According to a Chino Hills spokeswoman, Denise Cattern, the house's "customer base…is not our concern. Our concern is that it's a hotel." (LA Times, Dec. 4, 2012) Chino Hills' city codes prohibit hotels from being operated in residential areas. (CBS-Los Angeles, Dec. 1, 2012) The city has also cited the owner of the house for constructing additional rooms without a permit and issued a "cease and desist" order following a sewage spill from the house's septic tank. (LA Times, Dec. 4, 2012)
U.S. Immigration and Customs Enforcement (ICE) has also refused to take a stance on the maternity operation. ICE spokeswoman Virginia Kice would not confirm whether ICE was even investigating the Chino Hills house. However, based on previous statements made by Kice in September, ICE's only concerns about birth tourism appear to deal with "whether or not people are lawfully obtaining a visa and appropriately representing the purpose of their visit." (Orlando Sentinel, Sept. 24, 2012) According to Kice, no one in California has ever been prosecuted for visa fraud related to birth tourism. (Id.)
The Chino Hills operation's website makes clear the purpose of the business is to exploit the birthright citizenship clause of the 14th amendment. Its now-defunct website, www.asiamchild.com, provides information about the additional benefits of giving birth in the United States, such as access to free public education, social welfare programs, as well as the ability of the child to apply for the parents' citizenship upon turning eighteen years old. (ABC News, Dec. 2, 2012)
Birthright citizenship refers to the current interpretation of the 14th Amendment that any child born on U.S. territory (with the exception of children of foreign diplomats) is a U.S. citizen, regardless of the immigration status of the parents. (See FAIR Website on Birthright Citizenship, Sept. 2010)
Onyango Obama, uncle to President Obama, won his appeal to the Board of Immigration Appeals (BIA) last week for a new deportation hearing. (Boston Globe, Dec. 4, 2012) Lawyers representing Obama successfully argued that counsel formerly representing him in his previous appeals case was "ineffective," and that Obama deserved a retrial based on the amount of time he has lived in the United States. (Boston Globe, Dec. 4, 2012) Obama has lived and worked in the United States illegally since 1992, when he was originally ordered to leave after overstaying his visa. (Boston Globe, Sept. 9, 2011)
BIA's decision to reconsider Obama's immigration case comes in spite of a 2011 arrest for driving erratically and operating a vehicle while under the influence of alcohol at nearly twice the legal limit. (Boston.com, Aug. 31, 2011) At Obama's court date earlier this year, Massachusetts Judge Douglas Stoddard put the case on hold, meaning if Obama goes without arrest through March of 2013, his charges will be cleared. (FAIR Legislative Update, Apr. 16, 2012)
Shortly after Judge Stoddard's ruling, ICE spokesman Brian Hale announced in April that Obama would still "be required to report to ICE in the coming weeks in order to effectuate his departure from the United States." (Boston Herald, Apr. 13, 2012; see also FAIR Legislative Update, Apr. 16, 2012) However, last week's decision by BIA will now permit Obama to "pursue his application for permanent resident status," according to Scott Bratton, one of Obama's attorneys. (Boston Globe, Dec. 4, 2012)
In a little publicized semi-annual report to Congress, the Inspector General for the Architect of the Capitol, the agency tasked with maintaining the building and grounds for the U.S. Congress and U.S. Supreme Court, found that several illegal aliens had been hired by subcontractors to complete projects on Capitol grounds this last year. (Roll Call, Dec. 4, 2012)
Under federal law, the Architect of the Capitol's contractors and subcontractors are required to use the E-Verify system to verify the employment eligibility of hires. (See USCIS Website; see also Federal Acquisition Regulation) However, a "second-tier" subcontractor failed to use the system, resulting in the hiring of five illegal aliens who used fraudulent documentation to obtain employment. (Inspector General Report at p. 7-8) Three of the illegal aliens received site badges, and the other two while working on site, were never badged as required by their contract. (Id.)
Surprisingly, the Inspector General determined that the subcontractor did not violate any criminal laws because of "his ignorance" of the requirement to use E-Verify and because the illegal aliens had passed an FBI background check. (Id. at p. 16) As such, the Inspector General did not refer the subcontractor to the U.S. Attorney's Office for prosecution, but rather, referred the allegations regarding the use of fraudulent documentation — green cards and SSNs — to U.S. Immigration and Customs Enforcement (ICE) and the Social Security Administration. (Id.) Given that document fraud is not an enforcement "priority" under the Obama Administration, it is unlikely the illegal aliens will face any consequences for their actions.