Legislative Update: 2/24/2015
Funding for the Department of Homeland Security (DHS) will run out on Friday, February 27 unless Congress passes — and President Obama signs — new appropriations legislation. The House of Representatives has already acted, passing a bill that funds DHS for the remainder of fiscal year 2015 and defunds President Obama's executive amnesty. (See FAIR Legislative Update, Jan. 20, 2015) However, the House-passed DHS funding bill is stalled in the Senate because pro-amnesty Democrats are preventing the Senate from debating, or even offering amendments to, the bill. (See FAIR Legislative Update, Feb. 10, 2015) In doing so, seven Democratic Senators (joined by pro-amnesty Senator Dean Heller (R-NV)) broke their promises to oppose the executive amnesty. Last week, FAIR urged all of its members to call their Senators and demand that they pass the common sense House bill.
With time running out, DHS Secretary Jeh Johnson appeared on all five Sunday political shows insisting that Congress pass a DHS appropriations bill that fully funds the amnesty. "It's absurd that we're even having this conversation about Congress's inability to fund Homeland Security in these challenging times," Johnson said on CNN's "State of the Union." (See The Hill, Feb. 22, 2015) "I'm hoping someone will exercise some leadership," he added. (Id.) Then, on CBS's "Face the Nation" Johnson said he is "optimistic" that DHS funding will not lapse, citing pro-amnesty Sen. John McCain (R-AZ) as a source for Congress striking a deal. (Id.)
Stay tuned to FAIR during the week for updates on Senate action...
DOJ to Seek Stay of Injunction on President's Executive Amnesty
On Monday, the Department of Justice (DOJ) filed papers in federal court seeking a stay of the injunction on President Obama's executive amnesty. (CQ News, Feb. 23, 2015) Texas District Court Judge Andrew Hanen issued the injunction last Monday just as the Obama Administration was scheduled to begin the application process for the expanded DACA program. In an accompanying 120-page ruling, Judge Hanen found that the State of Texas had shown clear injury through the benefits Texas would be required to give deferred action recipients. He thus ruled Texas and other states had standing to sue and issued an injunction blocking implementation of the executive amnesty until the Court was able to make a decision on the merits of the case. (For a more detailed legal analysis of Judge Hanen's ruling, see IRLI.org, Feb. 23, 2015, IRLI.org, Feb. 20, 2015, and IRLI.org, Feb. 19, 2015)
The White House first gave reporters notice of the DOJ's plans during Friday's press briefing. (CQ News, Feb. 20, 2015; Reuters, Feb. 20, 2015; CNN.com, Feb. 20, 2015) White House spokesman Josh Earnest said that Obama would stand by his executive amnesty announced in November, and was confident it would win on appeal. (CQ News, Feb. 20, 2015) "There is a solid legal foundation for the president to take the steps that he announced late last year to reform our broken «immigration» system," Earnest said. "That's consistent with the way that previous presidents over the course of several decades have used their executive authority." (Id.)
It is uncertain whether the Obama Administration will succeed in its attempt to set the injunction aside. The same judge who issued the injunction, Judge Hanen, will review DOJ's motion. (Reuters, Feb. 20, 2015) If judge Hanen were to stay the injunction, the Obama Administration could resume its original timeline for implementation of the executive amnesty programs and immediately begin accepting applications for the expanded DACA program. If Hanen denies the DOJ motion, the Obama Administration will need to appeal to the 5th Circuit Court of Appeals to overturn the injunction issued by the District Court.
On Friday, House Judiciary Committee Chairman Bob Goodlatte (R-VA) admonished Homeland Security Secretary Jeh Johnson for using the executive amnesty to place illegal aliens on a path to citizenship. (Goodlatte Press Release, Feb. 13, 2015) In a letter sent to Secretary Johnson, Goodlatte pointed out that, despite the President's claims that his executive amnesty does not include a path to citizenship for illegal aliens, U.S. Citizenship and Immigration Services (USCIS) has in fact been taking actions that will allow certain illegal aliens such a pathway. (Id.) It has been doing so by giving DACA recipients "advance parole."
Advance parole is essentially a tool that grants an illegal alien permission to leave the U.S. with a promise of being "paroled" back into the U.S. upon return. Advance parole has been used for decades by immigration officials, who administratively created the tool, ostensibly basing its authority on the humanitarian parole statute (Immigration and Nationality Act (INA) § 212(d)(5)). Under the "humanitarian parole" statute, the executive branch has discretion to grant aliens parole to aliens outside of the country to enter the U.S. on a temporary and case-by-case basis under certain circumstances. Specifically, the INA provides: the "Attorney General may...in his discretion parole into the United States temporarily under such conditions as he 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 historically USCIS used advanced parole on a relatively small scale, the agency is now preparing to greatly expand the numbers of applications for advance parole by making application for it part of the initial DACA application. (Id.)
Granting parole is significant, because it allows aliens to circumvent provisions in the law that would normally bar their admission. (See INA § 201(b)(2)(A)(i); § 245(a)) Generally, aliens who have been residing in the country illegally long term cannot simply return to the country if they leave. INA § 212(a)(9)(B) bars the admission of aliens who have been illegally present in the U.S. between six months and a year for three years; it also bars the admission of aliens who have been illegally present in the U.S. for over a year for ten years. (INA § 212(a)(9)(B)) But, by paroling them instead of admitting them into the country, the 3 and 10 year bars do not apply. Furthermore, now that the alien has entered the country through parole, the alien avoids certain grounds for inadmissibility, such as INA § 212(a)(6), which applies to aliens who are present in the country without "admission or parole," and INA §212(a)(7), which applies to aliens who are not in possession of valid entry documents. (INA § 212(a)(6-7)) Moreover, paroled aliens who are immediate relatives of U.S. citizens are generally eligible to apply for a green card and citizenship. (See INA § 245(a), (c)(2); see also USCIS.gov)
As revealed by Chairman Goodlatte's letter, the Administration is now preparing to expand this use of advanced parole to put large numbers of its amnesty beneficiaries on this path to citizenship. Over the first two years of DACA, around 6,400 DACA recipients requested advanced parole. (Goodlatte Press Release, Feb. 13, 2015) Of these, USCIS granted 4,566 and denied only 566 (with the other applications still pending), an acceptance rate of 88%. (Id.) However, the requests were only a small percentage of the total number of DACA recipients. (Id.) Now, as USCIS explained in a conference call last Thursday, new DACA requesters will be able to file for advanced parole at the same time that they file their DACA application. (Id.)
The actual number of illegal aliens who are eligible for such a path to citizenship through family relations will likely be substantial. The Migration Policy Institute estimated last September that 1.3 million illegal aliens in 2012 were immediate relatives of U.S. (Migration Policy Institute Brief, September 2014) Unfortunately, however, USCIS already seems reluctant to share official data regarding advance parole. According to Chairman Goodlatte's letter, USCIS maintains that it has no "way to track electronically" the number of DACA recipients who have received advanced parole and then applied to adjust their status. (Goodlatte Press Release, Feb. 13, 2015)
Chairman Goodlatte blasted the program. "When the President of the United States tells the American people that DACA is "not a path to citizenship," no agency should take action in direct conflict with that statement," the letter declared. (Id.) "To do so is misleading the American people." (Id.)
Inspector General: ICE Unable to Effectively Track Released Illegal Aliens
This month, the Office of Inspector General (OIG) of the Department of Homeland Security (DHS) released a scathing review of DHS's Intensive Supervision Appearance Program (ISAP) and the method by which Immigration and Customs Enforcement determines which aliens can participate, known as the Risk Classification Assessment (RCA). (DHS Office of Inspector General Report, OIG-15-22, Feb. 4, 2015)
The ISAP program, which has been in effect since 2004, uses GPS tracking bracelets and case management with the goal of ensuring aliens who are in the removal process attend their hearings and comply with any final orders of removal. (Id.) ICE prioritizes enrolling the following aliens in ISAP:
- aliens with final removal orders who are not removable from the U.S. and cannot be legally held in custody more than 6 months, but who are a danger to the community;
- aliens in removal proceedings who are at high risk of absconding; and
- aliens with final removal orders, previously released under supervision, who violate the terms of supervision by committing crimes or otherwise fail to comply with release conditions. (Id. at 4).
First, the IG pointed out that beginning in 2011, ICE stopped supervising all illegal aliens through the completion of their immigration proceedings. Specifically, the Inspector General found that ICE either stopped tracking altogether or limited GPS tracking of illegal aliens whose removal proceedings were delayed — including illegal aliens "generally compliant" with the ISAP program. (Id. at 7) ICE justified this move as increasing ISAP's effectiveness but the Inspector General noted that ICE did not define effectiveness. (Id. at 7-8)The Inspector General concluded, "ICE cannot definitively determine whether the Intensive Supervision Appearance Program has reduced the rate at which aliens, who were once in the program but who are no longer participating, have absconded or been arrested for criminal acts." (Id. at 2, 6)
However, the OIG report found that between 2010 and 2012 nearly 5,000 illegal aliens in the ISAP program either committed additional crimes or absconded. Specifically, 2,010 illegal aliens committed crimes: 576 in 2010; 729 in 2011; and 705 in 2012. (Id. at 6, 24) During that three year period an additional 2,760 illegal aliens absconded: 927 in 2010; 982 in 2011; and 851 in 2012. (Id.)
The Inspector General was even more critical of the RCA tool. While RCA is supposed to streamline the decision making process for which illegal aliens are eligible for ATD, the report found "the tool is time consuming, resource intensive, and not effective in determining which aliens to release or under what conditions." (Id. at 11) Specifically, the Inspector General noted that RCA is incapable of analyzing difficult cases and when it does make recommendations, they are often wrong. (Id.) For example, between July 30, 2012 and December 31, 2013 the RCA failed to make a recommendation on 41,971 cases — 18% of cases in that time frame. (Id.) Moreover, during the same time period, Enforcement and Removal Operations (ERO) officers overrode 49,861 of 228,095 RCA recommendations — or 21.9% of recommendations. (Id. at 11-12)
The OIG report includes five recommendations for how ICE can improve ISAP and RCA. Notably for ISAP, the OIG recommended ICE (1) develop metrics to properly evaluate the program's effectiveness and (2) analyze the feasibility of shifting ATD funds to detention beds for illegal aliens who violate the program. (Id. at 8) ICE has 90 days from the date of the report to submit to OIG a corrective action plan and anticipated completion date for each recommendation. (Id. at ii)
Major GOP Donors Demand Amnesty for Support in 2016
Last Tuesday, three top Republican donors sent a message to all potential Republican presidential candidates: only those who support amnesty can expect to receive money from themselves or their network of large donors. (Partnership for a New American Economy Press Release, Feb. 17, 2015; US News and World Report, Feb. 17, 2015) These three multimillionaire GOP donors, health care CEO Mike Fernandez, fast-food CEO Andrew Puzder, and private equity manager Spencer Zwick, are influential Republican fundraisers who backed Mitt Romney's 2012 campaign. They issued their demand for amnesty during a conference call organized by the pro-amnesty group Partnership for a New American Economy. (Id.; Renewyoureconomy.com) Tuesday's call was part of a teleconference series moderated by prominent Republican amnesty proponent Grover Norquist, of the group Americans for Tax Reform. (Partnership for a New American Economy Press Release, Feb. 17, 2015)
The donors also made clear that former Florida governor Jeb Bush, who has indicated that intense opposition to amnesty among the Republican base will not cause him to drop his support for amnesty in the primaries, was the candidate most in their favor. (Id.; see The Hill, Dec. 2. 2014) Mr. Zwick in particular noted that Jeb Bush had certainly "decided to lead on this issue." (Bloomberg Executive Snapshot, Feb. 23, 2015; US News and World Report, Feb. 17, 2015) Mr. Fernandez, a Floridian billionaire and Cuban immigrant, said that he was "personally biased" towards Gov. Bush. (Id.; Miami Herald, Dec. 18, 2014)
These fundraisers attempted to frame their desire to grant amnesty and increase immigration as a crucial vote-winner in the general election as well as a condition for getting large donors to open their wallets. They signaled that candidates who implicitly support amnesty will not receive their support — they are looking for candidates who will clearly and unapologetically stand for amnesty. (US News and World Report, Feb. 17, 2015) "Across at least the larger donor base, there's a very strong feeling that if you're going to win this election, you're going to have to change your position on immigration reform [amnesty and increased legal immigration] if you're opposed to it," said Mr. Puzder. "I think donors want to support people who are going to win." (Id.)
The teleconference was only the latest of many calls for amnesty by these and other GOP donors and fundraisers. Right after last year's midterm elections, in which immigration enforcement was a winning issue, Fernandez, Puzder, and Zwick joined 100 other Republican donors in writing a letter to Congressional Republicans calling on them to pass amnesty and increase immigration during the 114th Congress. (Renew Your Economy Letter; see FAIR Legislative Update, Nov. 11, 2014)
Despite these donors' insistence that adopting their immigration position will help the Republican nominee appeal to the general electorate, the evidence shows that the voters who determine the winners of general elections do not actually share the immigration priorities of these multimillionaires. For instance, a Gallup poll last month found that only 7% of American adults want an increase in immigration levels, and nearly six times as many want a decrease. (Gallup, Jan. 29, 2015) Polling from last November's election showed 80% of voters surveyed wanted new jobs created by the economy to go to American workers and legal immigrants already in the country rather than additional immigrants. (The Polling Company, Nov. 6, 2014) November's elections also showed that when immigration enforcement is on the ballot, untied to either candidate or party, it wins big. In Democratic leaning Oregon last November, opposition to giving driver's licenses to illegal aliens proved more popular in than any candidate on the ballot, getting a landslide 68% of the vote. (See FAIR Legislative Update, Nov. 11, 2014)
Georgia Voters Overwhelming Oppose Amnesty and Driver's Licenses for Illegal Aliens
Georgia voters overwhelming support the enforcement of immigration law, according to a recent poll conducted by Rosetta Stone Communications for the Dustin Inman Society. (Daily Caller, Feb. 16, 2015)
The poll, which was conducted on February 10 and 11, 2015, revealed that 80 percent of registered Georgia voters prefer Americans and legal immigrants to be hired over illegal aliens, with only 10 percent of registered voters preferring illegal aliens or new immigrants get jobs. (Georgia Poll) Of those polled, 90 percent of Republicans and 70 percent of Democrats in the responded that Americans "should get the future jobs in Georgia" before unauthorized workers. (Daily Caller, Feb. 16, 2015) Overall, 71 percent of registered voters rated the job market in the United States as either "fair" or "poor." The poll has a margin of error of 3.5 percent. (Georgia Poll)
A large majority of registered voters in Georgia, over 65 percent, also believe that the federal government is doing too little to enforce immigration law. (Id.) Additionally, only 20 percent of voters polled support the government granting amnesty to illegal aliens. (Id.)
D.A. King, president of the Dustin Inman Society, said that, "the majority of Georgians comprehend the connection of employment and wages to the importation of large numbers of foreign workers and incrementally deferring to legally dubious executive amnesty decrees from Barack Obama." (Breitbart, Feb. 15, 2015) King added that the results are "likely not surprising to most working Americans, the margins in the responses should be regarded as guidance to elected officials that most of the people can't be fooled most of the time." (Id.)
Similarly, the poll revealed that registered Georgia voters also overwhelmingly oppose allowing illegal aliens, even those who have received deferred action under the President Obama's executive action, to receive driver's licenses. (Georgia Poll) Sixty-four percent of registered voters in Georgia support legislation introduced by Sen. Joshua McKoon to prevent illegal aliens with deferred action from receiving driver's licenses in the state, with only 21% of voters opposing. (Id.)This would reverse current law in Georgia, which allows driver's license applicants to present documents showing a grant of deferred action to meet its lawful presence requirement. (O.C.G.A. 40-5-21.1) "When the President created the 'deferred action status' class, he deliberately created a loophole to make millions of illegal aliens eligible for Georgia driver's licenses and other public benefits," explained Sen. McKoon. (Senate Press, Nov. 17, 2014) "Senate Bill 6 will eliminate that loophole in Georgia," Sen. McKoon added. (Id.)
The results of the poll reflect a nationwide trend favoring immigration enforcement. Polling conducted by Paragon Insights last fall demonstrates strong opposition to President Obama's executive action and indicates that most Americans favor tougher laws to hold employers accountable for hiring unauthorized workers. (Breitbart, Feb. 15, 2015; Breitbart, Jan. 29, 2015) Additionally, a Gallup poll, released last January shows that Americans are dissatisfied with the current rate of immigration into the United States, with only 7 percent of Americans in favor of increasing the rate. (Breitbart, Jan. 29, 2015)