Legislative Update: 2/12/2014
Administration Makes it Easier for Terrorists to Gain Admission to U.S.
Last week, the Obama Administration unilaterally took steps to weaken a federal law that prohibits those who provide "material support" to individuals or organizations engaged in terrorist activity from being admitted to the United States.
The Administration's latest move undermines laws enacted by Congress following the 9/11 terrorist attacks to strengthen national security. Specifically, Congress amended the Immigration and Nationality Act (INA) to prohibit aliens who commit an act that the alien "knows, or reasonably should know, affords material support" to individuals or organizations that have committed (or plan to commit) a terrorist activity from being admitted to the country. (See INA section 212(a)(3)(B)(iv)(VI)(emphasis added); see also CRS report on terrorist grounds of inadmissibility) However, in an agency notice published February 5, Homeland Security Secretary Jeh Johnson and Secretary of State John Kerry announced they were exempting from the law individuals whose "material support" was either "limited" or "insignificant."
The Administration claims that the purpose of the change is to aid those that deserve admission to the U.S. under our asylum and refugee laws who would otherwise be inadmissible because they provided "material support" to terrorists. A Department of Homeland Security spokeswoman provided some examples of intended beneficiaries: "For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement," she said. (Politico, Feb. 5, 2014)
Proponents of immigration enforcement, however, have pointed out that allowing the Secretaries of Homeland Security and State to excuse actions they deem "limited" or "insignificant" only serve to weaken laws designed to protect Americans. Under current law, "material support" for terrorists include a host of serious actions, such as providing "a safe house, transportation, communications, funds…false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training..." (See INA section 212(a)(3)(B)(iv)(VI)) In an interview following the Administration's announcement, FAIR's president Dan Stein commented that "The consequences are potentially dire for ... public safety." (Fox News, Feb. 6, 2014) Jessica Vaughn, policy director at the Center for Immigration Studies voiced similar concerns, saying "This is how we end up with families like the Tsarnaev brothers [the Boston marathon bombers], who were originally admitted for political asylum." (Daily Caller, Feb. 5, 2014)
Not only does the Administration's latest move weaken national security, it is unclear whether current law even provides Secretaries Johnson and Kerry the authority to water down the terrorist grounds for inadmissibility. Section 212(d)(3)(B)(i) of the Immigration and Nationality Act grants the Secretaries of Homeland Security and State the ability to determine that under certain circumstances, the terrorist activity grounds for inadmissibility "shall not apply with respect to an alien." However, rather than applying this authority on a case-by-case basis, Secretaries Johnson and Kerry have created new broad vague categories of exceptions. As a result, terrorists looking to game the system now have the ability to claim that they merely provided "insignificant" or "limited" material support to terrorists and therefore the bar to admission should not apply to them.
Key Members of Congress have already charged that the Administration has abused its authority. Senator Jeff Sessions argued, "It is one thing to approve a waiver in a particular case with uniquely compelling circumstances; it is entirely another thing to declare a plain legal requirement is null and void. What is the point of Congress passing a law if the Administration abuses its ‘discretion' to say that law simply no longer applies?" (See Sen. Sessions Press Release, Feb. 6, 2014) House Judiciary Chairman Bob Goodlatte (R-VA), who has come out in support of amnesty over the last year, also criticized the move. "This loophole provides bad actors an opportunity to easily manufacture reasons that ‘forced' them to provide material support to terrorists…The Obama Administration should not weaken our laws so that those who have supported terrorists can take advantage of them. Yet again, this Administration is abusing the powers granted it by Congress to provide relief in appropriate cases." (See Rep. Goodlatte Press Release, Feb. 6, 2014)
Nonetheless, those who support comprehensive immigration reform — and in particular expanding asylee and refugee programs — applauded the Administration's actions. Senate Judiciary Chairman and amnesty advocate Pat Leahy (D-VT) issued a release, "commend[ing] the administration for issuing these much needed – and long-awaited – exemptions." (See Sen. Leahy Press Release, Feb. 4, 2014) According to Leahy, "These changes help return our nation to its historic role as a welcoming sanctuary to the world's most vulnerable populations." (Id.) Gang of Eight Member Sen. Dick Durbin echoed Leahy's sentiment. "The United States has led the world in resettling and providing humanitarian assistance to refugees from conflicts around the globe and today's announcement will help remove a significant barrier to innocents seeking refuge in the U.S.," he said. (See Sen. Durbin Press Release, Feb. 5, 2014)
Fraud Rampant in Asylum System
Internal Department of Homeland Security (DHS) documents reveal that the asylum system is overwhelmingly plagued with fraud. According to a 2009 assessment obtained by the House Judiciary Committee and reviewed by The Washington Times, at least 70 percent of asylum applications were based in part on fraud. (DHS Asylum Fraud Draft Report) Specifically, the audit found that 12 percent of cases showed "proven fraud" while 58 percent had "indicators of fraud" but lacked sufficient evidence to make a final decision. (Id. at 12)
Under federal immigration law, the U.S. government can grant asylum to individuals who claim fear of persecution or torture by the government in their home country. Specifically, the Immigration and Nationality Act (INA) reads that asylum may be granted to "any person who… is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion..." (See INA 208(b)(1)(A); 101(a)(42)(A))
Judiciary Chairman Bob Goodlatte (R-VA) blamed the Obama Administration's refusal to enforce our immigration laws for encouraging fraud. "Because our immigration laws are so loosely enforced by the Obama administration, we should not be surprised to see so much fraud in the system," Goodlatte charged. (Washington Times, Feb. 5, 2014) "Asylum fraud undermines the integrity of our immigration system and hurts U.S. taxpayers. Once individuals are granted asylum, they receive immediate access to all major federal welfare programs. Our immigration system should be generous to those persecuted around the globe, but we must also ensure our compassion isn't being abused by those seeking to game the system," Goodlatte said. (Id.)
Another internal document reviewed by The Washington Times noted that DHS routinely releases illegal aliens claiming asylum rather than detaining them until their cases are adjudicated, as required by law. (Id.) Under the INA, illegal aliens in expedited removal proceedings who claim asylum must first demonstrate a "credible fear of persecution" in order to avoid removal without a hearing. (INA 235(b)(1)(B)) In this situation, U.S. Citizenship and Immigration Services (USCIS) first conducts a "credible fear" screening interview and any alien found not to have a credible fear is immediately removed from the country. If USCIS determines that the alien has a credible fear, the INA explicitly states that the alien "shall be detained for further consideration of the application for asylum." (Id.) An alien may only be released from detention prior to the full asylum hearing, known as parole, "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." (INA 212(d)(5); 8 C.F.R. 212.5(b))
However, despite clear language in the INA and relevant regulations limiting the instances where parole from detention may be granted for asylum seekers, this is not the first time the Obama Administration has expanded its application by executive fiat. Previously, through another policy directive, former Immigration and Customs Enforcement (ICE) Director John Morton authorized parole for any asylum applicant with a "credible fear" who "presents neither a flight risk nor danger to the community." (ICE Directive, Dec. 8, 2009) This policy change effectively releases most aliens claiming asylum who entered the country unlawfully into the country until their asylum hearing can be heard by an immigration judge, sometimes years from the initial claim.
In response to the previously unpublished report, Goodlatte and Immigration Subcommittee Chairman Trey Gowdy (R-SC) held a hearing yesterday to blame the abuse on the Obama Administration, arguing that DHS must follow the law as written. "[W]hen the Obama Administration fails to enforce our immigration laws or turns a blind eye to rampant fraud and abuse, our asylum process is undermined," charged Gowdy in prepared remarks. (House Judiciary Press Release, Feb. 10, 2014) "President Obama's continued refusal to enforce our laws on the books encourages more illegal immigration and invites fraud," added Goodlatte. (Id.) After the hearing, Reps. Goodlatte, Gowdy, Lamar Smith (R-TX), and Jason Chaffetz (R-UT) sent a letter to the U.S. Government Accountability Office requesting an investigation on the cost of asylum fraud to American taxpayers. (Read the letter here) Yesterday's hearing was a follow up to a hearing Goodlatte held last year to examine Congressional Research Service data that showed "credible fear" claims have nearly tripled since 2012 with 92 percent approved. (See FAIR Legislative Update, Dec. 18, 2013)
During his first major address since becoming Secretary of Homeland Security, Jeh Johnson announced last Friday that his Department is already preparing to implement a mass amnesty program. (DHS, Feb. 7, 2014) At the Wilson Center in Washington, D.C., Johnson identified amnesty as a priority, declaring that DHS is already conducting an "advanced planning team effort" based on the expectation that amnesty legislation would become law. (Id.)
Secretary Johnson declared that he has already taken steps to prepare DHS for processing amnesty applications. Johnson said, "I have already directed the Deputy Secretary of Homeland Security to coordinate the process to ensure we are ready to implement the law." (Id.) The deputy Johnson referred to is Alejandro Mayorkas, an official currently under investigation for allegedly improperly granting visas as director of U.S. Citizenship and Immigration Services. (See Associated Press, July 23, 2013; DHS, Feb. 7, 2014)
Secretary Johnson's remarks indicate that he sees amnesty as a key goal for the Department, representing a more aggressive approach than he took during his confirmation process. Prior to being confirmed, Johnson listed "immigration reform" as his seventh priority in a questionnaire he submitted to Congress. (Associated Press, Nov. 13, 2013) To justify this shift in priorities, Johnson tried to emphasize his Pentagon experience and national security background as giving him credibility, even though he has no immigration policy experience. (See FAIR Legislative Update, Dec. 18, 2013) He said that "as a matter of homeland security, we should" pass amnesty. (Id.) However, Secretary Johnson failed to explain how amnesty for illegal aliens will actually improve homeland security. Mahmud Abouhalima is an example of an illegal alien who conspired to commit the 1993 World Trade Center bombing after receiving amnesty in 1986. (See Time, June 24, 2001)
His comments also underscore the Obama Administration's continued circumvention of Congress and prioritization of amnesty over enforcement. As illustrated by the Deferred Action for Childhood Arrivals (DACA) program, Johnson's remarks show that the Obama Administration will divert resources and time to enacting its own agenda, whether Congress enacts actual legislation or not. Moreover, Johnson offered no indication that his tenure as DHS Secretary would be any different from that of his predecessor Janet Napolitano. Napolitano's time at DHS was marked by the rubber-stamping of visa applications (See OIG Report, Jan. 2012), a 99.5% approval rate for DACA applicants (USCIS DACA Monthly Report, Jan. 2012), and abuse of executive authority to grant administrative amnesty to large sections of the illegal alien population. (See FAIR's Morton Memos webpage)
At a press conference last Thursday, House Speaker John Boehner (R-OH) pointed to Republicans' lack of trust in the President's willingness to enforce the law as the reason the GOP controlled chamber has yet to move on immigration legislation. (See Speaker Boehner's website, Feb. 6, 2014) However, the Speaker stopped short of saying that immigration reform is dead in the House, commenting that he is going "to continue to talk to [his] members about how to move forward, but the president is going to have to do his part as well." (Id.)
In placing blame on President Obama, Speaker Boehner identified a lack of "trust" in the President to "to enforce the law as it is written" as "one of the biggest obstacles" to working on immigration legislation. (Id.) He explained that "the American people, including many of my members, don't trust that the reform that we're talking about will be implemented as it was intended to be." He also blamed the President for not cooperating with Congress, complaining that "the president's asking us to move one of the biggest bills of his presidency, and yet he's shown very little willingness to work with us on the smallest of things." (Id.)
Nonetheless, Speaker Boehner left open the possibility for action on immigration if Obama could remove Members' of Congress doubt that the president would simply ignore any future laws. He said, "the president could reach out and work with us on those and begin the process of rebuilding the trust between the American people and his presidency." (Id.) He added, "there's widespread doubt about whether this administration can be trusted to enforce our laws, and it's going to be difficult to move any immigration legislation until that changes." (Id.) Boehner did not identify what specific actions by President Obama would provide a sufficient showing of trustworthiness or how long it would take to rebuild trust.
Though claiming that President Obama's unwillingness to enforce the laws as written has stifled the House's immigration reform efforts, prior to the Thursday press conference, Speaker Boehner met with the former Archbishop of Washington and amnesty proponent Theodore McCarrick to discuss immigration. (Washington Post, Feb. 6, 2014) Moreover, this past week, Boehner and other leaders have been discussing immigration with pro-amnesty Members across the aisle; Speaker Boehner has also exchanged words about immigration on the House floor with Minority Leader Nancy Pelosi while Representative Paul Ryan has held private meetings with Senator Chuck Schumer. (Politico, Feb. 4, 2014)
Last week, Eagle Forum, the conservative group founded by Phyllis Schlafly in 1972, released a report detailing a thorough case for why Republicans must make reducing immigration their top policy priority.
In "How Mass (Legal) Immigration Dooms a Conservative Republican Party," Eagle Forum refutes claims that the Republican Party can attract more minority voters by supporting amnesty and increased immigration. To the contrary, through an analysis of extensive survey literature, the report finds that policy positions such as support for increased government services drive Hispanics and Asians to vote for the Democrat Party. For instance, it cites a Pew Hispanic Center poll from 2012 showing that, compared to 41% of the public at large, 75% of Hispanics and 55% of Asians want a larger government providing more services. (See Eagle Forum Report at p. 16) Both Hispanic and Asian voters rank immigration as a low priority in polls. (Id. p. 33)
Eagle Forum also reviews numerous analyses of election results showing that the position Republican candidates take on immigration does not significantly affect their performance with minority voters. For instance, the report cites the nationwide county-by-county analysis of political scientist James Gimpel showing that from 1980 to 2000 the share of votes going to Democrats in a county grew with its share of the foreign born, and that this partisan impact was relatively uniform even as local Republican parties took different positions on illegal immigration. (Id. at pp. 9,28,32) It also rebuts several prominent myths to the contrary, such as the idea that Republican support of Proposition 187 caused the party's decline in California or that Chris Christie's recent electoral success with Hispanics resulted from his support for in-state tuition for illegal aliens. (Id. at pp. 9, 28-29) Eagle Forum's conclusions on this issue are very much in line with FAIR's analysis from last October. (See FAIR's Analysis: "Republicans Have an Immigration Problem — And Amnesty Won't Solve It," Oct. 2013)
Eagle Forum warns the GOP against dismissing the Democrat tilt of immigrants as easily changed or temporary. It states: "Those advocating that Republicans should promote mass immigration are in effect arguing that the party should support admitting millions of voters into the country who largely disagree with a limited government agenda and then somehow convince these new voters that their policy preferences are wrong. (Eagle Forum Report at p. 9) The report also responds to those Republicans who argue that, even given present immigrant preferences, mass immigration will not create a long term GOP problem because many descendants of previous waves of immigrants eventually became Republican. It points out that, among other problems for this argument, this switch took many decades and happened only in the context of far lower immigration levels from 1920 to 1980. (Id. at p. 30)
Eagle Forum concludes its report by stating that the Republican Party has a choice: "It can either change its position on legal immigration or it can change its position on everything else." The report encourages the GOP to take a populist tone when making the case for reducing immigration levels. Not only is such a position "valid as a matter of policy and politically appealing," the authors add, it would have the further benefit of addressing a key GOP vulnerability, that the party is perceived as "unconcerned about the working class." Furthermore, the report states, lower immigration levels would actually facilitate the assimilation and integration of immigrants and their children, a result which would make them more likely to vote Republican over time. (Id. p. 35)
House Committee in Rhode Island to Consider Driver's Licenses for Illegal Aliens
On Tuesday, February 11, 2014, the Rhode Island House of Representative's Judiciary Committee considered House Bill (HB) 7262, a bill that grants driver's licenses to illegal aliens.
HB 7262 accomplishes this by amending state law to authorize the state to grant driver's licenses or permits to individuals even though they are unable to provide Social Security Numbers or evidence that they are lawfully present in the United States. Instead, an applicant must merely provide proof of Rhode Island residency and identity by submitting either a foreign birth certificate, valid passport that is unexpired for less than three years, or valid and unexpired consular identification card and either:
- a certified court record,
- valid driver's license issued by another U.S. state or territory,
- an employee ID,
- a certified school record, or
- a federal I-94 Form.
Any driving privilege card or permit issued under HB 7262 must be a different color than standard Rhode Island licenses and permits and must include a clear written indication that it is not valid for state or federal identification purposes.
Supporters of HB 7262 argue that this bill is necessary to help illegal aliens work (despite the fact that federal law bars employers from hiring them), run errands, and pick up their children from school. (Providence Journal, Feb. 3, 2014) Rhode Island Representative Anastasia Williams stated, "We should not judge a person because of their illegal status. If they are here, we need to provide them with the proper tools to be law abiding citizens while they are working out their legal statuses." (Id.)
However, opponents view HB 7262 as just another way for illegal aliens to avoid enforcement of the law at the expense of taxpayers. (Go Local Prov, Feb. 5, 2014) "[Providing driver's licenses to illegal aliens] is a logical step only if the goal is to exacerbate the state's unemployment rate and budget woes," stated Monique Chartier, an immigration reform activist and spokesperson for Rhode Island Taxpayers. (Id.) "Drivers licenses for illegal aliens are a complete non-starter. Our elected officials need to enact policies that are good for the state as a whole, not just a very narrow band of special interest advocates." (Id.)
Legislators in six other states, including Hawaii, Indiana, Iowa, Massachusetts, New Jersey, and New York, have introduced legislation in 2014 seeking to extend driving privileges to illegal aliens. If passed, these states will join the eleven states that permit illegal aliens to obtain driver's licenses or driving privilege cards: California, Colorado, Connecticut, Illinois, Maryland, Nevada, New Mexico, Oregon, Vermont, Washington, and Utah. Of these eleven states, eight passed laws granting driver's licenses or driving privilege cards in 2013. However, in that same year, similar bills were defeated in ten states: Arizona, Arkansas, Connecticut, Florida, Indiana, Kansas, Mississippi, Missouri, North Carolina, Rhode Island, Virginia, and Washington.