Legislative Update: 11/18/2014
Obama Administration Announces Sweeping Program to Bring Central Americans to the U.S.
In a release issued Friday, the Obama Administration announced a sweeping program to bring Central Americans to the United States permanently. (State Department Fact Sheet, Nov. 14, 2014) In doing so, the Obama Administration is executing a plan originally announced in July as tens of thousands of illegal alien minors streamed across the U.S.-Mexico border. (See FAIR Legislative Update, July 29, 2014)
Under the program, the federal government will grant either refugee status or parole to children and adults from Guatemala, Honduras and El Salvador. The process will start when parents who are "lawfully present" in the U.S. file an application for refugee status on behalf of their unmarried children (under 21) in El Salvador, Guatemala, or Honduras. If the second parent resides with the child, the second parent may be added to the application. The child and/or parent will be contacted by the International Organization for Migration (IOM), which manages the U.S. the Resettlement Support Center in Latin America. DHS will then screen the child to make a decision on the application.
However, granting refugee status to Central American minors and their parents would require the President to outright ignore the legal definition of a refugee — a point FAIR made when the Obama Administration first announced the program. (See FAIR Legislative Update, July 29, 2014) Section 101 of the Immigration and Nationality Act (INA) defines a refugee as a person "who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (INA Sec. 101(a)(42)) Courts have held that persecution requires government action, meaning action by the government or by actors who the government is unable or unwilling to control. (Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010)(citing Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir. 2005)) In addition, the persecution must be "on account of" the alien's claimed race, religion, nationality, membership in a particular social group, or political opinion. (Aldana-Ramos v. Holder, 2014 U.S. App. LEXIS 12165, *9-*10 (1st Cir. 2014)) Thus, U.S. courts have repeatedly held that general violence or poverty does not meet the requirements for refugee or asylee status. (See, e.g., Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (citing 8 U.S.C. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004))
The inability of Central Americans to qualify for refugee status is likely why the Administration's new program will also consider granting parole to children and/or parents are denied refugee status. Parole, commonly referred to as "humanitarian parole," is authorized by INA Section 212. The statute grants the Executive Branch discretion to "parole into the United States temporarily under such conditions as [it] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit...." (INA § 212(d)(5)(A)(emphasis added)) While the Administration acknowledged in its release that parole, by definition, is temporary in nature, it said aliens granted parole from Central America would be allowed into the U.S. in two-year increments and allowed to renew their parole, apparently indefinitely. Not only would a two-year parole period contradict the temporary nature of parole as set forth in statute, it contradicts a statement by U.S. Citizenship and Immigration Services (USCIS) made as recently as 2012 that parole will be granted for no longer than one year. (USCIS website, updated June 28, 2012)
The inclusion of parole in the Obama Administration's program is significant because it greatly expands the number of aliens who may be eligible for the program. There is no statutory cap on the number of aliens who may receive parole. (See INA 212(d)(5)) Interestingly, while the statute authorizing humanitarian parole requires that the government have an "urgent humanitarian reason" for granting parole or that it be done for "significant public benefit," the Obama Administration included no justification for granting parole to Central Americans in its release.
However, what was included in the Obama Administration's release Friday was a false statement that "[p]arolees are not eligible for medical and other benefits upon arrival in the United States." In fact, from the start, aliens with parole are eligible for Obamacare, and will qualify for Social Security and Medicare once they have accumulated sufficient work history because federal regulations deem aliens with parole to be "lawfully present." (See 45 CRF 155.20, 8 C.F.R. 103.12; 42 U.S.C. § 402(y)) Within a year, they will become "qualified aliens," which, over the course of five years, makes them eligible for all federal public benefits. (See 8 U.S.C. §§ 1611, 1613)
The Obama Administration also made the claim that the program would not provide "a pathway for undocumented parents to bring their children to the United States." However, according to Friday's announcement, parents in the U.S. need only be "lawfully present" in the U.S. in order to apply for their children to participate in this program. While the full details of the Obama Administration's program are still unknown, most definitions of "lawfully present" found in federal regulations include aliens with deferred action or parole. (See, e.g., 45 CRF 155.20, 8 C.F.R. 103.12; 42 U.S.C. § 402(y)) If this program adopts similar definitions for "lawfully present," then illegal aliens with deferred action and parole will be able to apply for their children to join them in the United States.
According to the statement, issued jointly by the State Department and the Department of Homeland Security (DHS), the Obama Administration's refugee/parole program for Central Americans will begin in December — only two weeks away. (State-DHS Release, Nov. 14, 2014)
FAIR Report: Executive Amnesty Will Give Illegal Aliens Taxpayer Funded Benefits
The full extent of President Obama's forthcoming executive amnesty is far greater than is being reported. In addition to shielding millions of illegal aliens from deportation and rewarding them with work authorization, the Obama Administration is poised to give these amnestied illegal aliens taxpayer funded benefits that could end up costing U.S. citizens billions of dollars. In the report, FAIR has set forth an explanation of how executive amnesty through parole or deferred action will make these illegal aliens eligible for certain major benefits programs. This summary is not intended to cover all programs. Indeed, depending on a variety of circumstances and details of the executive action, President Obama may make illegal aliens eligible for even more benefits. Read the report here.
Obama Reportedly Planning Big Amnesty, More Immigration, and Less Enforcement
Last week, new details about President Obama's anticipated executive action on immigration were leaked to major news outlets. (Fox News, Nov. 12, 2014; New York Times, Nov. 13, 2014) The planned executive actions would deliver amnesty to an estimated four and a half million illegal aliens, dramatically increase the level of immigration into the country, and dismantle immigration enforcement. (Fox News, Nov. 14, 2014)
First, President Obama seeks to expand the existing Deferred Action for Childhood Arrivals (DACA) program. Currently, DACA grants a two-year reprieve from deportation and work authorization to aliens who: (1) were under the age of 31 as of June 15, 2012; (2) came to the U.S. before reaching their 16th birthday; (3) have continuously resided in the U.S. since June 15, 2007; (4) have been physically present in the U.S. on June 15, 2012, and at the time of application; (5) had no lawful status on June 15, 2012; (6) 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; and (7) do not have certain convictions (See FAIR Legislative Update, June 19, 2012; see also DACA Guidelines). Reports indicate that Obama now plans to modify criteria for the program such as changing the June 15, 2007 date to January 1, 2010, in order to make an additional 300,000 illegal aliens eligible for the program. (Fox News, Nov. 14, 2014)
Then, Obama also seeks to amnesty the illegal alien parents of U.S. citizens and legal permanent residents, but the specifics are unclear. (Fox News, Nov. 12, 2014) While Fox News reports that the proposal is targeted for the estimated 3.3 million illegal aliens who have lived in the United States for at least five years, The New York Times indicates that the White House is considering a 10-year residency requirement (impacting 2.5 million illegal aliens). (Compare Fox News, Nov. 14, 2014; New York Times, Nov. 13, 2014) On what authority Obama will claim to grant this amnesty is also vague; reports mention the creation of a new DACA program, granting deferred action, and the issuance of parole-in-place. (See FAIR Legislative Update, Nov. 20, 2013)
Furthermore, the New York Times reported about two other groups the White House may seek to amnesty: the estimated one million illegal aliens who have children who are DACA recipients, and the hundreds of thousands of illegal aliens who were employed illegally for years as farm workers in the United States. (New York Times, Nov. 13, 2014)
According to reports, Obama's executive action would also expand legal immigration. First, the President plans to allow illegal aliens in the U.S. to obtain green cards by granting large numbers of waivers of the three and 10-year bars. (See FAIR Legislative Update, Jan. 7, 2013) This would generally apply to aliens who are immediate relatives of U.S. citizens. Then, Obama is planning to admit more foreign high-tech workers by modifying the H1-B visa program. (Fox News, Nov. 14, 2014; see also FAIR, H-1B Visas: Harming American Workers) The final planned action to encourage immigration would be to cut the naturalization fee of $680 in half for the first 10,000 applicants.
Finally, reports indicate President Obama would continue to dismantle immigration enforcement. First, the President would end Secure Communities, a program Congress started appropriating funds for since fiscal year 2008 through which federal officials check the fingerprints of individuals arrested by local law enforcement against federal databases to determine if they are removable illegal alien criminals. (See P.L. 110-161 (2007); see also Fox News, Nov. 14, 2014) Furthermore, the Obama Administration is expected to expand breadth of the Morton Memos by placing more illegal aliens on low priority for deportation on account of family ties or limited criminal history. (See FAIR's Summary of Morton Memos; see also New York Times, Nov. 13, 2014)
These executive actions could be announced this week. (Fox News, Nov. 14, 2014) However, Senate Majority Leader Harry Reid (D-NV) urged President Obama to wait until after Congress passes a bill to fund the government beyond the continuing resolution that expires on December 11. Reid said, "I'd like to get the finances of this country out of the way before he does it. But it's up to [President Obama]." (Roll Call, Nov. 13, 2014)
Obama Extends Chinese Short Term Visas to 10 Years
Last Monday, President Obama signed a deal with the Chinese government under which the U.S. and China have agreed to extend the duration of business, tourism, and student visas issued to each other's citizens. (State Department Fact Sheet, Nov. 10, 2014; Fox News, Nov. 10, 2014)
Until now, visas issued to Chinese nationals expire after a year. (White House Press Release, Nov. 10, 2014; Fox News, Nov. 10, 2014; State Department Fact Sheet, Nov. 10, 2014) Under the President's agreement, the State Department will issue 10-year business and tourist visas, and five-year student visas to Chinese nationals. (Id.) Ten years is the longest amount of time a visa may be valid under U.S. law. (Id.)
This agreement will not necessarily change the length of time Chinese travelers will be able to stay in the country during each trip they make to the U.S, nor change the criteria for visa eligibility. (Id.) The length of time a Chinese citizen may stay will not change because a visa is a permit to apply for entry into the country, but the period of admission is set upon arrival by immigration or customs officers. (See State.gov) But because they will now only need to go to the trouble and expense of applying for a visa once every ten years, this agreement will make it easier for them to go on frequent trips to the U.S. (Id.; White House Press Release, Nov. 10, 2014) According to the White House, Chinese travelers cite ease of visa policies as the second most important factor in deciding where to travel, behind only cost, and the Administration is eager for the U.S. to obtain economic benefits from the rapidly growing Chinese tourism industry. (Id.) However, because it so drastically reduces how often Chinese citizens will have to apply for a new visa, if the U.S. should tighten its eligibility requirements to get a visa after an individual has already obtained one, that individual will not be affected for years.
This new policy elevates the status of China, putting it on a level footing with major trading partners of the United States, such as Brazil, Argentina, Israel, France, the United Kingdom, and many other European countries. (CNN, Nov. 10, 2014; see State.gov, Reciprocity Schedule By Country) However, the U.S. actually has a number of reasons to be stricter rather than more lenient in granting visas to Chinese citizens. Such reasons include China's visa refusal rate of 8.5%, its widespread promotion and practice of birth tourism, and its systematic refusal to repatriate its own criminal citizens. (Foreign Policy, Apr. 25, 2014; Boston Globe, Dec. 9, 2012; Fox News, Aug. 13, 2012; GAO, May 2004)
China's refusal to repatriate its own nationals is particularly significant because the law requires the State Department to refuse to issue visas to the citizens of countries that do so. Section 243(d) of the Immigration and Nationality Act (INA) states that, after being notified by the Department of Homeland Security (DHS) that "the government of a foreign country denies or unreasonably delays accepting an alien," the Secretary of State "shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both..." (See INA § 243(d), 8 U.S.C. § 1253(d)). However, under this Administration, neither DHS nor the State Department have shown any urgency in following this law to pressure countries like China to repatriate its own criminal aliens (Fox News, Aug. 13, 2012; Daily Caller, Nov. 4, 2011) The neglect of this law is particularly detrimental to the interests of Americans because the Supreme Court has held that if our government cannot deport such criminal aliens, they must be released from detention after six months. (See Zadyvdas v. Davis, 533 U.S. 678 (2001)) Yet rather than, as the law requires, step up pressure on China as one of the worst offenders, with this agreement the Administration has chosen to give China a favored status. (See Fox News, Aug. 13, 2012)
Reporters have also criticized the deal for failing stop China's longstanding practice of restricting visas to American journalists. (Fox News, Nov. 10, 2014) Journalists from news organizations such as the New York Times, Bloomberg, Reuters, and Fox News have had problems getting visas to enter China, even though the U.S. freely gives visas to Chinese reporters. (Id.; New York Times, Nov. 12, 2014)
ICE Attorney Lawsuit Reveals Administration Pressure to Overlook Crimes by Illegal Aliens
A new lawsuit filed by a senior Immigration and Customs Enforcement (ICE) attorney has exposed how ICE supervisors are forcing agents to drop enforcement cases against illegal aliens, even those with criminal records. (Vroom Complaint, Nov. 6, 2014).
The discrimination lawsuit was filed last week by Patricia Vroom, who currently serves as ICE's Chief Counsel in Arizona. According to her complaint, Ms. Vroom had a stellar reputation and performance reviews during her 26 year career as an attorney at ICE and its predecessor agency until she became the latest target of a coordinated effort by top supervisors at ICE to purge senior chief counsel. (Id. at 1, 9) The plot to remove senior chief counsel, she alleged, started in 2009 with the political appointment of Peter Vincent as Principal Legal Advisor. (Id. at 9) According to Vroom, Vincent used his group of "enforcers," close friends that he improperly placed into key positions, to consolidate power within ICE and then harass senior chief counsel into retiring. (Id. at 9-11) Vroom's conflict with this group first intensified when two of her supervisors, both Vincent's friends, pressured her to release a number of illegal aliens with Arizona felony convictions. (Id. at 24)
In February 2013, the complaint alleges, Ms. Vroom's new supervisor instructed her that illegal aliens convicted of felony identify theft under Arizona criminal law should receive "prosecutorial discretion" on their cases, i.e. indefinite relief from removal. (Id. at 23-25) Even under the Morton Memos, the policy by which the Administration has dismantled interior immigration enforcement, ICE attorneys are still supposed to "aggressively pursue" convicted felons for deportation. Nothing in the Morton Memos, or any other written policies of this Administration, goes so far as to also exclude from any threat of removal even aliens who have been convicted of such felonies. (Id.; see FAIR's Morton Memo Summary) But according to the complaint, Ms. Vroom's supervisor had created a new strictly verbal policy, called the "Arizona Identity Theft Initiative," that aliens convicted of felonies under this particular state statute should not be classified as "priorities" for enforcement — thus, they in effect also should receive de facto amnesty. (Id.) According to Ms. Vroom, this unwritten policy resulted in the administrative closure of hundreds of cases. (Id.)However, the complaint states that because the Arizona Identify Theft Initiative was never written down, she had trouble understanding the basis for it, but when she asked questions to better understand, her supervisor accused her of "push-back." (Id.) The oral justification her supervisor did give her was that the typical alien defendant convicted under this statute had "simply been using a fake I.D. to get and keep employment." (Id.)
The complaint also alleges that high ranking officials in the government colluded to help illegal aliens convicted under Arizona's Identity theft statute avoid deportation. (Id. at 44-45) According to Vroom, another one of her other supervisors emailed her about a DACA applicant who had been rejected because of an Arizona felony conviction. (Id.) He told Ms. Vroom that he insisted that she force her staff at ICE to cancel the illegal alien's deportation charges, whether by threats or supplication. (Id.) When she protested that at least she wanted to explain that this directive came from higher ranking officials, rather than herself, he also refused, telling her to keep it "local." (Id.) Unknown to her at the time, he had just participated on a conference call about the applicant that included the Department of Homeland Security (DHS) Principal Deputy Counsel, and the U.S. Citizenship and Immigration Services (USCIS) Chief Counsel. (Id.)
Nor were the Arizona identity theft convictions the only felony convictions that Ms. Vroom's supervisors pressured her to ignore for the benefit of illegal aliens, according to the complaint. (Id.) In September and October of 2013, one supervisor insisted that she drop a case against an illegal alien who had twice illegally registered to vote by falsely claiming to be a U.S. citizen and had already been found removable on this basis. (Id. at 39-40) In September of 2014, another supervisor told a group of ICE attorneys that they should also exercise "prosecutorial discretion" for aliens that had "old" DUI convictions, if "they had enough equities," saying about an alien's criminal record "[w]e don't give a sh** about that." (Id. at 63)
Sheriffs Rally to Oppose Amnesty
Sheriffs from around the country are planning a massive gathering in Washington, D.C. to rally against President Obama's anticipated executive amnesty that will shield millions of illegal aliens from deportation. (Breitbart, Nov. 10, 2014) The sheriffs will be joined by Sens. Jeff Sessions (R-LA) and David Vitter (R-LA), and other members of Congress to demand immediate action to secure the border and enforce immigration law. (Id.)
Bristol County, Massachusetts Sheriff Thomas M. Hodgson is working to get at least 200 sheriffs to join the protest and meet with members of Congress. Last week, Hodgson sent a letter to sheriffs across the country calling on them to convene at the Capitol on December 10. (Hodgson Letter) Hodgson told his fellow sheriffs, "No longer can we sit idle while the inaction of our Federal Government marginalizes our ability to preserve public safety, enforce our laws, and protect the Constitutional rights of all who legitimately reside and work in our communities." (Id.) Hodgson says the sheriffs' protest will send the message to the Administration that: "We are sick and tired of being marginalized in our ability to protect our citizens. We want the border secured. And until you do that, until you secure these borders, which you've been telling us since Day One, you will never ever have legitimate comprehensive immigration reform." (National Review, Nov. 10, 2014)
In response to Sheriff Hodgson's call to action, the National Sheriffs' Association issued a press release reiterating the organization's opposition to amnesty and encouraging sheriffs to participate in the meeting this December. (National Sheriffs' Association Press Release) The National Sheriffs' Association is one of the largest associations of law enforcement professionals in the country. (Id.) It is a nonprofit organization representing over 3,000 elected sheriffs nationwide, with a total membership of more than 20,000. (Id.)
The National Sheriffs' Association's press release reaffirmed organization's stance articulated in its 2013 position paper on immigration policy. (Id.)In the paper, the Association advocated for effective and efficient securing of the border, enforcement of the immigration laws currently on the books, requiring information sharing between local law enforcement and federal immigration officials, withholding federal reimbursement money from jurisdictions who refuse to cooperate with immigration officials, and strengthening employer verification requirements, among other things. (National Sheriff's Association, Jun. 25, 2013) The paper concluded, "The National Sheriffs' Association strongly opposes outright amnesty for those individuals currently here illegally. Amnesty does not work. When granted in 1986, it did little to stop the flow of illegal individuals from coming across the borders and, in fact, contributed to thousands of fraudulent applications for amnesty." (Id.)
Despite voters' denunciation of President Obama's immigration policies and plans to issue an executive amnesty, the President still insists that he must act unilaterally before the end of the year. Some Republicans in Congress have threatened using the power of the purse to combat an executive power grab. (Associated Press, Nov. 12, 2014) The sheriffs' meeting is scheduled two days before government funding runs out. (Hodgson Letter)