FAIR Legislative Update May 14, 2012
The House Judiciary Committee on Tuesday passed 17-15 the House’s version of the Violence Against Women Reauthorization Act (VAWA), H.R. 4970. House Majority Leader Eric Cantor indicated that the House intends to vote on the legislation this Wednesday, May 16. (The Hill, May 10, 2012; House Weekly Schedule)
H.R. 4970, introduced by Rep. Sandy Adams (R-FL), differs from the recently passed Senate version in several ways. First, the House version does not include an increase in U visas. The Senate version, S. 1925, includes a provision that increases the number of U visas granted annually from 10,000 (the current ceiling) to 15,000, until all unused U visas since 2006 are recaptured. (S. 1925 at § 805; see also FAIR Legislative Update, May 1, 2012) The U visa to allows aliens who have suffered substantial physical or mental abuse as a victim of domestic violence, rape, or certain other crimes to obtain temporary legal status if they help law enforcement prosecute those crimes. (INA § 101(a)(15)(U); see FAIR’s U Visa Policy Statement, Mar. 21, 2012) An alien can obtain a U visa regardless of legal status, remain in the country for four-years at a time, receive work authorization, and become eligible for a green card after three years. (INA § 214(p); USCIS Website on U visas)
Next, H.R. 4970 takes steps toward improving the U visa program. Under current law, an alien must only be likely to help federal, state, or local law authorities in investigating or prosecuting the perpetrator. H.R. 4970 would require the alien petitioning for a U visa to have already “provided” information that will assist law enforcement in identifying the perpetrator of the crime in order to qualify for the visa. (H.R. 4970 at § 2)
Finally, H.R. 4970 includes provisions to make the U visa a true temporary non-immigrant visa. (Id. at § 806) First, it removes a provision from federal law that allows aliens to obtain legal permanent residency simply by being in the country for three-years on a U visa if the DHS Secretary deems it is in the public interest, or necessary for humanitarian reasons or family unity, to grant them a green card. (See INA § 245(m)) Second, it amends current law to prevent aliens from extending the temporary four-year visa period by an additional four-years. (See INA § 214(p)(6))
The House Judiciary Committee also adopted several immigration-related amendments to H.R. 4970. These include:
- Amendment by Rep. Mel Watt (D-NC): Effectively strikes the requirement that an alien seeking a U visa must report within 60 days the crime for which they claim to be a victim. Current law does not require aliens to report crimes within a certain period.
- Amendment #8 by Rep. Sandy Adams (R-FL): Requires Homeland Security to report to Congress the types and frequency of crimes resulting in the granting of U visas.
- Amendment #9 by Rep. Trey Gowdy (R-SC): Expands the types of evidence that DHS may consider when determining whether to deport an alien for committing a crime of violence.
The House is expected to pass H.R. 4970, leaving the battle over the Senate immigration provisions to conference committee, where members of both bodies will reconcile the House and Senate versions. Stay tuned to FAIR for updates…
On Thursday, the House of Representatives passed several key immigration measures as part of broader bills.
First, the House adopted an amendment to H.R. 5326, the FY 2013 spending bill for the Departments of Commerce, Justice, and Science (CJS), that defunds the Obama Administration’s lawsuits against several states that seek to strike down their immigration enforcement laws. The amendment, introduced by Rep. Diane Black (R-TN), is based on a bill she introduced earlier this year (H.R. 3842) to defund the suits. (See FAIR Legislative Update, Jan. 17, 2012)
Second, the house adopted another amendment to the CJS appropriations bill that strips certain funding from sanctuary cities. The amendment, introduced by Rep. Joe Walsh (R-IL), prohibits the Department of Justice from reimbursing sanctuary cities through the State Criminal Alien Assistance Program (SCAAP). SCAAP provides federal funding to state and locals to defray the costs of incarcerating illegal aliens. (See Bureau of Justice Assistance Website, May 13, 2012)
Finally, as a part of a House budget reconciliation package aimed at saving hundreds of billions of dollars over the next decade, the House passed language proposed by Rep. Sam Johnson (R-TX) that would prevent illegal aliens from receiving of the additional child tax credit (ACTC). (See H.R. 5652 § 611; see also CQ Today, May 9, 2012) The ACTC is a refundable tax credit that allows individuals with three or more children to reduce their federal income tax by up to $1,000 for each child who meets certain criteria. (See TIGTA Report 2011-41-061, July 7, 2011)
Currently, illegal aliens are eligible for the ACTC because the IRS only requires applicants for the ACTC to provide an Individual Taxpayer Identification Number (ITIN), which it indiscriminately hands out to illegal aliens. Last year, the Inspector General for the U.S. Treasury Department released a report revealing that illegal aliens annually receive $4.2 billion in refundable tax credits, primarily through the ACTC. (Id.; see also FAIR Legislative Update, Sept. 6, 2011)
Having passed both the CJS and budget reconciliation bills on Thursday, both bills are headed to the Senate. President Obama, however, has threatened to veto the CJS appropriations bill because of various amendments made to the bill, and Majority Leader Harry Reid has indicated that the Democrat-controlled Senate is unlikely to take up the Republican House’s budget reconciliation package. (Fox News, May 10, 2012; Wall Street Journal, May 10, 2012)
Last week, the House Homeland Security Appropriations Subcommittee passed legislation that rejects President Obama’s proposed budget. As passed by the Subcommittee, the FY 2013 Department of Homeland Security (DHS) Appropriations bill provides $39.1 billion in discretionary funding for DHS, $484 million below FY 2012 spending and $393 million below the President’s budget request. (House DHS Appropriations bill, subcommittee version; House Appropriations Committee Release, May 8, 2012)
While the newly-unveiled House DHS appropriations bill cuts the Department’s overall budget, it still protects critical immigration enforcement programs. In particular, the bill rejects the Obama Administration’s proposal to cut Immigration and Customs Enforcement (ICE) by four percent and instead increases the agency’s funding by approximately $141 million (House Appropriations Committee Release, May 8, 2012; FAIR Legislative Update, Feb. 21, 2012) With regard to specific programs, the bill:
- Maintains the minimum number of Border Patrol agents at 21,370 (p.8);
- Maintains the minimum number of Customs and Border Protection agents at 21,186;
- Maintains funding for the 287(g) program at $68 million;
- Dedicates $138 million to complete the deployment of Secure Communities (p.13);
- Maintains the level of detention beds at 34,000 (p.13, 81); and
- Extends authorization for E-Verify for one year (current authorization ends on Sept. 30, 2012)(p.83)
In addition to protecting these immigration enforcement programs, the House DHS Appropriations budget sends a clear message to President Obama: “The Secretary of Homeland Security shall ensure enforcement of immigration laws…” (p.82) This get-tough message is backed up by provisions that condition substantial amounts of funding on DHS actually delivering required reports to Congress on time. For example, the bill provides that more than half of the funding for Secretary Janet Napolitano’s executive office shall be withheld until the Secretary submits to Congress “all statutorily required reports and plans” that are due with the submission of next year’s budget proposal. (p. 3) Subcommittee Chairman Robert Aderholt (R-AL) told journalists that he hoped these provisions would get Homeland Security’s attention. (Politico, May 9, 2012) “The bottom line is, they not only should enforce the law but also comply with the law,” said Aderholt. (Id.)
The next stop for the House DHS Appropriations Bill will be a hearing in the full Appropriations Committee on Wednesday. At that time, members are expected to offer amendments before sending the bill to the House floor. (Id.)
For the first time since 2004, U.S. Customs and Border Protection (CBP) released a plan of action last week to increase border security. Despite the Obama Administration’s insistence that state and local governments have no right to aid the federal government in enforcing immigration law, the new CBP plan incorporates a “whole-of-government” approach that encourages cooperation between federal, state, and local governments and international agencies. (See CBP Border Patrol Strategic Plan, p. 18-20, 2012)
The new plan also integrates virtual security measures such as fixed tower monitoring systems, aerial surveillance, foot sensors, and other devices that will further the Obama Administration’s plan to reduce boots on the ground. (Id. at p. 15; see also FAIR Legislative Update, Apr. 23, 2012)
The House Homeland Security Subcommittee on Border and Maritime Security held a hearing on the new strategic plan Tuesday. According to the testimony of U.S. Border Patrol Chief Michael Fisher, to secure the border the plan will apply a risk-based approach, rather than the previous resources-based approach. (Bloomberg Transcript, May 9, 2012; see also CBP Border Patrol Strategic Plan, p. 4-7, 2012)
“Border Patrol must strategically apply intelligence to ensure that operations are focused and targeted against the greatest threats,” he explained to the Subcommittee, suggesting a prioritization that places a greater focus on terrorists and large organized crime groups. (Bloomberg Transcript, May 9, 2012; see also Homeland Security Today, May 9, 2012) The plan includes assurances that it will sustain the “apprehension of illegal crossings.” (See CBP Border Patrol Strategic Plan, p.28, 2012) However, despite these “assurances,” prioritization could result in instances of illegal border crossers slipping through the cracks if they are not deemed a high enough threat.
Chairman of the Subcommittee Candice Miller (R-MI) expressed concern over the new approach, noting the potential problem of border-crossers adapting to and countering border patrol patterns. She also pointed out an additional flaw: CBP’s plan “lacks a tangible way to measure” illegal border crossers. (Bloomberg Transcript, May 9, 2012) “[W]e hear terms like, ‘the border is more secure than ever,’ … but how do you measure that and by what?” she asked. (Id.)
According to Chief Fisher, CBP is still developing the implementation plan for the new strategy, making it unclear when the plan will officially take effect. (Bloomberg Transcript, May 9, 2012)
Last week, the Alabama Senate once again postponed debate on legislation that would significantly scale back the State’s immigration enforcement law, HB 56. This delay is one of several that seem to be the result of diverging House and Senate strategies.
In April, the Alabama House introduced, debated and passed legislation that would substantially weaken HB 56. The legislation, HB 658, proposed limiting the circumstances under which local law enforcement officers check immigration status, weakening the penalties for knowingly hiring illegal aliens, eliminating the prohibition on renting apartments to an individual a landlord knows is an illegal alien, eliminating the ability of citizens to bring an action against a law enforcement agency's sanctuary policy or practice, and eliminating the requirement that schools collect immigration data on their students for inclusion in state reports. (See HB 658 as engrossed; FAIR Legislative Update, Apr. 9, 2012; FAIR Legislative Update, May 1, 2012)
Senate leaders now seem to be debating behind closed doors whether to follow the House and gut HB 56, or to make only minor changes to the law. Senator Scott Beason, who was the Senate author of HB 56, has supported the latter approach and introduced his own legislation (SB 541) that makes only small, technical changes to the law. Business organizations, however, are lobbying the state Senate hard to gut HB 56 and are particularly trying to scale back the law’s penalties for employers that hire illegal aliens. (See Montgomery Advertiser, May 11, 2012) The Senate was scheduled to take up the issue yet again last Thursday, but Senate leaders postponed debate until next Wednesday, May 16.
Stay tuned for more information as events unfold …
In its latest effort to prevent state and local governments from assisting in the enforcement of immigration laws, President Obama’s Justice Department (DOJ) has filed an official complaint against Maricopa County, AZ; its Sheriff’s Department; and its Sheriff, Joe Arpaio, alleging various violations of the Constitution and federal law. (See Complaint, US v. Maricopa County, filed May 10, 2012; see also DOJ Press Release)
The complaint, filed Thursday, alleges the Defendants engaged in three different types of unlawful conduct in violation of the First, Fourth, and Fourteenth Amendments; the Violent Crime Control and Law Enforcement Act of 1994; and Title VI of the Civil Rights Act of 1964. (Cmplt. at ¶ 7) These allegations of misconduct include: 1) a pattern or practice of discriminatory law enforcement actions against Latinos in Maricopa County; 2) discriminatory jail practices against Latino inmates with limited English proficiency (LEP); and (3) a pattern or practice of retaliatory actions against perceived critics. (Id. at ¶ 6)
In the DOJ’s first allegation, that practices of the Maricopa County Sheriff’s Office (MCSO) unlawfully discriminates against Latinos, the DOJ relies on anecdotes and unnamed studies to claim that MCSO officers unlawfully rely on race, color, or national origin in their enforcement of traffic laws. (Cmplt. at § I) Amongst its various claims is that Latinos are more likely to be the target of a traffic stop than non-Latino drivers engaged in similar conduct and that such officers engage in pre-textual stops, that officers mistreat Latinos during traffic stops, and that the Criminal Employment Squad (CES) of the MCSO (an immigration enforcement unit) targets Latinos during worksite raids. (Id.) To back up its allegations, the DOJ claims that the MCSO’s decision to make immigration enforcement a top priority, the MCSO’s lack of extensive guidelines to protect against discriminatory police practices, and that statements made by Sheriff Arpaio, all provide evidence of discriminatory intent. (Id.)
The DOJ’s second allegation, that the MCSO unlawfully discriminates against non-English speaking Latinos, again relies on anecdotes. (Id. at § II) Among other things, the DOJ alleges that MCSO jail officials intentionally discriminate against non-English speaking prisoners by typically making announcements in English only, penalizing prisoners for not submitting forms in English, and failing to provide a written language assistance plan. (Id. at ¶¶ 130; 124; 131)
Finally, DOJ’s third allegation claims that the MCSO and Sheriff Joe have violated the First Amendment by filing “unsubstantiated complaints and lawsuits” against critics of their policies in an effort to retaliate for protected speech. (Id. at § III) Specifically, the DOJ claims that the former Chief Deputy of the MCSO filed complaints with the Arizona State Bar against five attorneys who spoke out against MCSO, and filed complaints with the Arizona Commission on Judicial Conduct against four judges whom had made statements or ruled against MCSO. (Id. at ¶ 140-141) Because these complaints were ultimately dropped for a lack of facts or sufficient evidence, the DOJ claims the MCSO Chief Deputy must have acted in a retaliatory fashion by filing them. (Id. at ¶ 139-141) The DOJ also claims that MCSO would arrest protestors simply because they disagreed with its policies. (Id. at ¶ 149)
To prevail on the merits of its lawsuit, the DOJ must demonstrate that the policies of the Sheriff's office both had a “discriminatory effect” and were “motivated by a discriminatory purpose.” (See U.S. v. Armstrong, 517 U.S. 456, 465 (1996)) In determining whether there was a discriminatory purpose, courts generally evaluate several factors. These include whether the impact of the law bears more heavily on one race than another, the historical background of the policy, the sequence of events leading up to the policy, departures from normal procedure, and legislative history. (See Village of Arlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252, 266-268 (1977)
The DOJ is seeking an injunction against the MCSO’s policies and a judgment to deny the office from receiving federal funds. (Id. at ¶ 163-164)
Last week, nearly 50 radio hosts from across the nation gathered in Washington, D.C. over two days to join FAIR’s annual “Hold Their Feet to the Fire” radio row event.
Each year, FAIR’s event provides radio talk hosts and their guests the chance to discuss immigration policy and reform openly, giving Americans around the country a chance to tune in and voice their opinions.
This year, FAIR was proud to host over 30 Members of Congress who sat down to talk about immigration on the airwaves. Also participating in the event were policy experts and law enforcement officers.
Dedicated grassroots activists from FAIR also took time to visit Congressional offices to discuss the need for true immigration reform.
FAIR’s “Hold Their Feet to the Fire” promotes a civil dialogue on the future of immigration policy and reforms that will restore legitimacy to our immigration system.