FAIR Legislative Update February 21, 2012
Last week President Obama renewed his effort to undermine immigration enforcement by releasing a budget for FY 2013 that cuts funding for Immigration and Customs Enforcement (ICE) and important programs it oversees. (See DHS Budget in Brief FY2013) The President’s FY 2013 budget proposes cutting ICE, the nation’s chief immigration enforcement agency, by four percent. It also proposes cutting the Federal Law Enforcement Training Center (FLETC)—the agency within DHS that trains approximately 90 federal law enforcement agencies, including ICE agents—by five percent.
In addition to cutting ICE’s overall budget, the President’s FY 2013 budget specifically proposes cutting the 287(g) federal-local law enforcement program by $17 million. The budget describes what is essentially a phase out of the 287(g) program in favor of the expansion of Secure Communities, calling the cut a “realignment and reduction of 287(g)” that will “reduce the 287(g) program” as ICE implements Secure Communities nationwide. (Id. at 101) ICE plans to implement the cuts by “discontinuing the least productive 287(g) task force agreements in those jurisdictions where Secure Communities is already in place and …suspend[ing] consideration of any requests for new 287(g) task forces. (Id. at 16)
DHS justifies the cut to this important program by stating that Secure Communities is “more cost effective” than 287(g). (Id. at 101) However this justification ignores that the 287(g) program and Secure Communities work in fundamentally different ways. The 287(g) program trains local law enforcement officers to identify whether an individual is an alien, and if so, whether that alien is lawfully present. These 287(g)-trained officers may work either in a local jail or on a law enforcement task force out in the community. (See ICE 287(g) Fact Sheet)
Meanwhile, Secure Communities functions by taking digital fingerprint scans of individuals booked at a local jail house and bouncing those electronic files against the Department of Homeland Security’s immigration database at the same time the prints are sent to the FBI for a criminal background check. (See Secure Communities webpage) If there is a hit, DHS automatically relays that information to the local law enforcement agency and the local ICE office, which may place a detainer on the alien. (Id.) While Secure Communities is an efficient and effective program, it only works to identify an alien if the alien’s fingerprints are already in the DHS immigration database. Aliens who have illegally entered the U.S. and have not yet come in contact with law enforcement will not have their fingerprints in the system, nor will illegal aliens who have come into contact with the system before the Secure Communities program was operational.
From a broader perspective, the proposed cut to the 287(g) program represents the Obama Administration’s unrelenting assault on local law enforcement agencies that wish to enforce federal immigration laws. The Administration has taken numerous steps to curb state and local enforcement of immigration laws, including the extraordinary step of suing Arizona, Alabama, and South Carolina to block the implementation of their state immigration enforcement laws. The proposed cut also signals an effort by the Obama Administration to circumvent Congressional intent by gradually starving a program that Congress enacted into law (the name 287(g) referring to the section where the program can be found in the Immigration and Nationality Act).
This week, various Committees in the House began to hold hearings on the Obama Administration’s FY 2013 budget. Over the next few months, Members will decide which portions of the Administration’s recommendations to adopt or reject through the passage of spending (appropriations) bills.
The FBI last Friday arrested an illegal alien carrying a gun and wearing what he believed was a suicide vest filled with explosives that would enable him to blow up the U.S. Capitol. (Associated Press, Feb. 19, 2012) The arrest, which took place inside a garage just blocks from the Capitol, was the culmination of a year-long investigation, during which the alien told undercover FBI agents of his desire to kill members of the military, attack a synagogue, and finally the Capitol building. (Id.)
According to the FBI affidavit, the suspect, Amine El Khalifi was an alien of Moroccan descent who entered the United States at the age of 16 and overstayed his visitor’s visa for years. (Id.; See also The Washington Post, Feb. 17, 2012) El Khalifi was unemployed, living in Northern Virginia, and had been nearly evicted by his landlord for failure to pay rent. (Associated Press, Feb. 19, 2012)
However, the alien’s illegal presence in the U.S. was not what alerted authorities to investigate El Khalifi. [Despite a Congressional mandate, the Department of Homeland Security still has not developed a biometric exit system that can determine whether aliens leave the U.S. when required.] Instead, the investigation began with an anonymous tip. (Id.) According to the government affidavit, an FBI informant brought El Khalifi to the attention of law enforcement in January 2011 after he told a group meeting at an Arlington, Virginia residence that they “needed to be ready for war." (CNN International, Feb. 18, 2012)
In short court appearance Friday, the FBI formally charged El Khalifi with plotting to bomb the U.S. Capitol and attempting to use a weapon of mass destruction against federal property. (CNN International, Feb. 29, 2012) El Khalifi is scheduled for a bond hearing on Wednesday. (Associated Press, Feb. 19, 2012)
Members of the House Appropriations Homeland Security Subcommittee grilled Homeland Security Secretary Janet Napolitano on Wednesday during a 2013 budget hearing on her department’s improper utilization of Congressionally-approved funds.
In his opening statement, Subcommittee Chair Robert Aderholt (R-AL) admonished Secretary Napolitano for claiming the department lacks resources sufficient to enforce U.S. immigration law as a way to push the Administration’s amnesty agenda. “[T]his Administration chooses to apply the term ‘priorities’ as a convenient excuse to avoid enforcing our immigration laws and ignore legislative mandates….” he said. (Rep. Aderholt Opening Statement, Feb. 15, 2012)
Chairman Aderholt also questioned the Department’s decision to cease rolling out Secure Communities in his home state of Alabama as retaliation for the State’s immigration enforcement law, H.B. 56. (Bloomberg Government Transcript, Feb. 16, 2011; see also FAIR Legislative Update, Jan. 23, 2012) He pointed out that Secure Communities is fully deployed in two other states the Administration is suing over their immigration enforcement laws, telling Napolitano, “The safety of Alabamans is certainly not a lesser concern….” (Bloomberg Government Transcript, Feb. 16, 2012) The Secretary nonetheless stood by her decision to postpone implementation of the program designed to detect criminal illegal aliens until the Justice Department’s lawsuit against the State is fully litigated before the 11th Circuit Court of Appeals. (Id.)
Several members echoed Chairman Aderholt’s concerns over the Administration’s refusal to enforce U.S. immigration laws. Chair of the full House Appropriations Committee, Hal Rogers (R-KY), criticized the Obama Administration for “turning a blind eye” to illegal aliens who had not committed additional crimes and likened the policy to a form of amnesty. To this charge, Napolitano merely responded that the term “amnesty” is “way too overused with respect to immigration.” (Id.)
Rep. John Culberson (R-TX) challenged Napolitano on circumventing Congressional intent by selectively enforcing the law. He asked Secretary Napolitano which categories of illegal aliens the Department refuses to prosecute. When Secretary Napolitano described those who would qualify for amnesty under the failed DREAM Act, he pointed out to her that Congress had already expressly rejected such an amnesty. You are describing “essentially those people defined by the DREAM Act, which did not pass Congress,” he scolded her. (Id.) “It’s not the law, but you’re making it the law.” (Id.)
Later that day Secretary Napolitano also appeared before the House Homeland Security Committee. There, members of the committee not only voiced objections to the President’s administrative amnesty program, but also questioned the Secretary about the Administration’s proposed cuts to the 287(g) program.
Rep. Mike Rogers (R-AL) expressed dismay over the Department’s decision to reduce funding to the program by 25 percent. The “287(g) program has been just an outstanding force multiplier and [is] relatively inexpensive… So, I'd hate to see no additional communities be added,” he said. (Bloomberg Government Transcript, Feb. 16, 2012) Ignoring critical differences between the 287(g) and Secure Communities programs, Secretary Napolitano responded that the cuts were due to the Administration’s plans to deploy Secure Communities nationwide by 2013 and that Secure Communities is the Administration’s “preferred” program for identifying illegal aliens. (Id.)Secure Communities identifies aliens who have fingerprints on file with the Department of Homeland Security upon police booking them into jail, whereas 287(g) trains officers on how to identify illegal aliens.
Taking it one step further, Rep. Scott Rigell (R-VA) focused not just on proposed cuts to the program’s funding, but on the Administration’s attempts to eliminate it entirely. “Under the administration, not one 287(g) task force application  has been approved,” he said. (Id.) Admitting the 287(g) program’s effectiveness, Secretary Napolitano again responded that Secure Communities was the Administration’s preferred program, claiming that it helps the Department “target appropriately the population that [it] want[s] to prioritize in removal, which are criminal aliens.” (Id.)
During closed-door negotiations last week, House and Senate leaders stripped a key provision from the payroll tax cut bill that would have prevented illegal aliens from qualifying for the additional child tax credit (ACTC). Leaders caved on the language in spite of an U.S. Inspector General report revealing that illegal aliens received $4.2 billion in refundable tax credits in 2010, primarily through the ACTC. (See TIGTA Report 2011-41-061, July 7, 2011; see also FAIR Legislative Update, Sept. 6, 2011)
The provision members struck from the bill – similar to legislation introduced by Rep. Sam Johnson (R-TX), Rep. Jack Kingston (R-GA), and Senator David Vitter (R-LA) – would close this tax credit loophole by requiring that individuals who claim the ACTC provide a valid Social Security Number (SSN). (FAIR Legislative Update, Nov. 21, 2011) Currently, the IRS only requires applicants for the ACTC to provide an Individual Taxpayer Identification Number (ITIN), which the Internal Revenue Service (IRS) indiscriminately hands out to illegal aliens.
Although twenty House and Senate members were assigned to negotiate the final version of the bill, media outlets widely reported that the final package was crafted by Congressional leaders: House Speaker John Boehner (R-OH), Senate Majority Leader Harry Reid (D-NV), Sen. Finance Chair Max Baucus (D-MT), and House Ways and Means Chair Dave Camp (R-MI). (Politico, Feb. 16, 2012)
Speaker Boehner threw his support behind the deal. This is “a fair agreement and one that I support,” he told reporters. (Washington Post, Feb. 16, 2012) Majority Leader Reid also spoke favorably of the agreement, “I am glad that most of my Republican colleagues put the interests of the middle class ahead of politics,” he declared in a statement. (Fox News, Feb. 16, 2012)
The $4.2 billion taxpayers doled out to illegal aliens in 2010 reflects a four-fold increase in refundable tax credits paid to illegal aliens over the last five years. A previous report issued by the Treasury Inspector General revealed Americans paid $924 million in 2005. (See FAIR’s Website) The Congressional Joint Committee on Taxation determined that if Congress were to fix this burden on U.S. taxpayers, it would save Americans at least $10 billion if the benefit expires in 2012, and $24 billion by 2021. (Human Events, Sept. 21, 2011)
On Wednesday, the House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing to investigate allegations that United States Citizenship and Immigration Services (USCIS) officials improperly pressured its employees to rubberstamp visa applications. In January, the USCIS Office of Inspector General issued a report uncovering a pervasive “get-to-yes” culture within the department, wherein supervisors encouraged adjudicators to abandon thorough reviews of applications in favor of quick approvals. (OIG-12-24 Report, Jan. 2012; see also FAIR Legislative Update, Jan. 9, 2012)
Subcommittee Chairman Elton Gallegly (R-CA) noted that USCIS’ own data demonstrates that approval of immigration benefits is at an all-time high under the Obama Administration. The data “shows that the overall denial rate for non-immigrant worker visas has fallen over 30 percent since President Obama took office in 2009, and that the approval rate for all immigrant benefits is at an all-time high of 91 percent.” (Rep. Gallegly Press Release, Feb. 15, 2012)
House Judiciary Committee Chairman, Lamar Smith (R-TX), viewed this data not as a new trend, but as a long-standing pattern at USCIS. The “mindset of quantity over quality has not ended at USCIS. In fact, according to the [Inspector General] report, nearly 25 percent of immigration service officers that responded to this survey have been pressured to approve questionable applications,” he said.
Rep. Smith also questioned whether the rubberstamping of immigration applications was expressly ordered by USCIS leadership. (Rep. Smith Press Release, Feb. 15, 2012) This was an apparent reference to USCIS Director, Alejandro Mayorkas, whose name was mentioned in statements from several USCIS employees who claimed he asked them, “Why would you be focusing on [fraud] instead of approvals?” Allegations against Mayorkas also included referring to workers who denied too many applications as having “black spots on their hearts,” implying that thorough checks were of secondary importance and called one’s level of compassion into question. (Sen. Grassley Press Release, Oct. 15, 2010)
Mayorkas, who was the first witness to testify before the Subcommittee, vehemently denied these accusations, claiming “Any suggestion that I downplayed fraud…is categorically false.” (Bloomberg Government Hearing Transcript, Feb. 16, 2012) Rather, Mayorkas professed that adhering to the law is of “paramount importance” to him. (Id.) “There should not be a culture of get-to-yes nor should there be a culture of get-to-no…but rather the culture…of getting it right,” he said. (Id.)
Another witness, Mark Whetstone, President of the National Citizenship and Immigration Services Council and former employee of Immigration and Naturalization Services (INS), also denied the existence of a coined “get-to-yes” culture. (Id.) Nonetheless, he conceded that conditions such as lack of training and pressures to approve applications exist and can lead to higher approval rates. (Id.) “The pressures to move the workload might have a lot to do with that and coupled with adjudicators’ discomfort with the level of training that they have in the area of detecting fraud,” Whetstone said. “We got reports from individuals saying that their supervisors discourage referral to the fraud detection officers,” he added. (Id.)
Charles Edwards, acting inspector general of the Department of Homeland Security (DHS), offered similar concerns in his testimony, confirming that “several USCIS employees informed us that [Immigration Service Officers] have been required to approve specific cases against their judgment.” (Id.)
Wednesday’s hearing came less than one month after President Obama’s issuance of an executive order to speed up processing times of nonimmigrant visas, adding to existing pressures to review applications quickly. This latest Obama immigration initiative will shorten the review time and relax the screening process for not only the tens of millions of tourists and business travelers who enter the U.S. each year, but also for hundreds of thousands of guest workers. (See Executive Order, Jan. 19, 2011; see also FAIR Legislative Update, Jan. 23, 2012)
Last week, the New Mexico Senate rejected legislation that would bar illegal aliens from obtaining driver’s licenses in the state. (Las Cruces Sun-News, Feb. 14, 2012) Earlier in the month, the State House passed H.B. 103, a bill that essentially barred illegal aliens from getting a driver’s license by requiring applicants to submit a valid Social Security Number, not merely an individual taxpayer identification number (known as an ITIN) as currently permitted under state law. (See FAIR Legislative Update, Feb. 8, 2012) The House sent H.B. 103 to the Senate, but the Senate killed it by refusing to take up the bill with only days left in the legislative session. (Associated Press, Feb. 14, 2012)
Instead, the New Mexico Senate last Monday passed “alternative” legislation that made smaller changes to the State’s existing driver’s license law. (Las Cruces Sun-News, Feb. 14, 2012) That bill, S.B. 235, amends the documentation requirements to establish identity and residency and requires that a driver’s license issued to a foreign national presenting an ITIN be valid for only two years. (See S.B. 235 as introduced) The bill also allows the State to revoke a driver’s license if the applicant did not submit a Social Security Number and there is “reasonable articulable suspicion” that the individual no longer resides in New Mexico. (See S.B.235 as amended) The Senate passed S.B. 235 by a vote of 27-15—an essentially party-line vote, as only one Democrat joined the 14 Republicans who opposed the measure. (Associated Press, Feb. 14, 2012)
With the end of New Mexico’s legislative session on Friday, both the House and Senate bills are dead. But Governor Martinez, who strongly supports banning driver’s licenses for illegal aliens, said she wouldn't have signed the Senate proposal even if it passed the Legislature. (Associated Press, Feb. 14, 2012) “New Mexicans do not want a law in place that continues to provide driver's licenses to illegal immigrants, period,” said Martinez. (Id.) Martinez has promised to push the issue as long as she is Governor. (Id.)