Legislative Update: 3/29/2016
Border Patrol: Administration has "No Intention of Deporting" Most Illegal Border Crossers
The head of the National Border Patrol Council, the union representing Border Patrol agents, is claiming that the Obama administration has instructed them not to enforce immigration laws. Brandon Judd, the union's president, asserted that he and other border patrol agents were told to release illegal aliens caught at the border since the Department of Homeland Security (DHS) had "no intention" of deporting them. (See Judiciary Committee Press Release, Mar. 21, 2016)
Mr. Judd's alarming accusation came in written responses to questions submitted for the record following a House Judiciary Immigration and Border Security Subcommittee hearing. Specifically, Judd describes his concerns when told to release illegal aliens without issuing a Notice to Appear (NTA) in court which would initiate the deportation proceedings — a policy known as "catch and release." (See Brandon Judd Response, March 2016) He took those issues to Deputy Homeland Security Secretary Alejandro Mayorkas who responded, "Why would we [issue an] NTA those we have no intention of deporting? "We should not place someone in deportation proceedings, when the courts already have a 3-6 year back log." (Id.) Judd previously told the Committee that the catch and release policy was prompted by the "embarrassment" that illegal aliens with NTAs were skipping their court dates. (Washington Examiner, Feb. 4, 2016) When the administration had issued NTA's, 80-90 percent of the illegal aliens failed to show up for their hearing and disappeared into the interior of the country. (FAIR Legislative Update, Mar. 1, 2016)
The catch and release policy undermines the Obama administration's established "enforcement priorities." The Johnson Memos, which were announced in November 2014 and outlined the administration's enforcement priorities, centered on removing immigrants who arrived after January 2014. (See FAIR Legislative Update, Nov. 24, 2014) The refusal to enforce the law against illegal aliens the administration claimed are a priority abandons even this pretense of interior enforcement.
In response to Judd's testimony, Judiciary Chairman Bob Goodlatte (R-VA) said, "Not only has President Obama sought to undermine our immigration laws at every opportunity possible, now his political appointees have implemented a ‘catch and release' policy that contradicts the Administration's already weak enforcement priorities. Rather than take the steps necessary to end the border surge, the Obama Administration is encouraging more to come by forcing Border Patrol agents to release unlawful immigrants into the United States with no intention of ever removing them." (Judiciary Committee Press Release, Mar. 21, 2016)
President Obama's abandonment of immigration enforcement continues to fuel the surge of illegal aliens crossing our Southern border because they know they will get to stay in the U.S. once they arrive. (FAIR Legislative Update, Mar. 1, 2016) Indeed, according to the latest numbers released by the Border Patrol, unaccompanied minor children as well as family units doubled in the first part of Fiscal Year 2016; the former from 10,105 to 20,455, the latter from 9,090 to 24,616. (Border Patrol Report, February 2016)
Middle Eastern Illegal Aliens Exploiting Obama-Created Asylum Loophole
Seizing on the uptick of terrorist attacks throughout the world, illegal aliens from Middle Eastern countries living unlawfully in the U.S. are exploiting a loophole in our asylum law to be allowed to stay. Indeed, hundreds of illegal aliens from Syria, Iran, Pakistan, Somalia, and Egypt apprehended at the U.S. border are now claiming a "credible fear" of persecution — the initial threshold for seeking asylum. (See Fox News, Mar. 22, 2016) According to official government data, during fiscal year 2015, 80 Syrians, 191 Pakistani, and 776 Somalian nationals asserted "credible fear" claims while unlawfully crossing the U.S. border. (Id.)
Under federal immigration law, the U.S. government can grant asylum to individuals who claim a fear of persecution or torture by their government. (See INA § 208(b)(1)(A); § 101(a)(42)(A)) However, aliens who simply arrive at the border without documents and claim asylum must first demonstrate a "credible fear of persecution" through a credible fear interview. (See INA § 208; 8 C.F.R. 208.30(d)) If an asylum officer determines there is no credible fear of persecution, the alien is immediately subject to deportation without a hearing, known as expedited removal. (INA § 235(b)(1)(B); 8 C.F.R. 235.3(b))
On the other hand, if the asylum officer determines the alien has established a credible fear of persecution, the officer will refer the alien to an immigration judge for a full asylum hearing. (INA § 235(b)(1)(B); 8 C.F.R. 235.3(b)) However, in this instance the INA explicitly states that the alien "shall be detained for further consideration of the application for asylum." (INA § 235(b)(1)(B)(ii))(emphasis added) However, over the years various administrations have utilized parole to release illegal aliens from detention prior to the full asylum hearing. Yet, parole is only supposed to be used in narrow circumstances "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))(emphasis added)
But despite the clear statutory language and relevant regulations limiting the instances where parole from detention may be granted for asylum seekers, the Obama administration expanded its application by executive fiat. Although the Bush administration utilized parole for certain aliens claiming credible fear, its application was limited. (See ICE Directive, Nov. 6, 2007) But through a 2009 policy directive, then-Immigration and Customs Enforcement (ICE) Director John Morton significantly expanded its use, authorizing 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) And, as part of the November 2014 executive amnesty, DHS Secretary Jeh Johnson further expanded the category of illegal aliens eligible for parole to include aliens "who demonstrate that they are primary caretakers of children..." (DHS Memo, Nov. 20, 2014)
Unsurprisingly, illegal aliens — primarily from Central America — have been exploiting the "credible fear" loophole because parole bestows legal presence and work authorization. In fact, U.S. Citizenship and Immigration Services (USCIS) recorded a 250 percent increase in referrals of asylum claims to immigration judges between 2012 and 2013 alone. (See FAIR Legislative Update, June 30, 2015) Now, after seeing Central American illegal aliens exploit the system, those from Middle Eastern countries are starting to use the turmoil in their home countries to make "credible fear" claims.
The government data on Middle Eastern illegal alien asylum claims was obtained by Rep. Ron DeSantis (R-FL) in his capacity as chairman of the House Oversight Subcommittee on National Security. "These numbers illustrate vulnerabilities throughout our immigration system," DeSantis declared. (Fox News, Mar. 22, 2016) "Dangerous criminals and potential terrorists are gaming the system without consequence. The Obama administration is compromising our national security and safety for its political agenda." (Id.) Similarly, Brandon Judd, president of the National Border Patrol Council, testified before DeSantis's committee last week, "Do I believe they have a credible fear? In a small percentage, maybe. But the vast majority we arrest are telling our agents that they are coming because they know they will be released. That's why they are coming." (Id.)
In a long overdue report to Congress based on Fiscal Year 2014 data, the Office of Refugee Resettlement (ORR) found that Middle Eastern refugees resettled in the United States are more likely than refugees from anywhere else in the world to be on welfare. (Breitbart, Mar. 23, 2016)
An astounding 39.2 percent of refugees from the Middle East receive cash benefits through Temporary Assistance for Needy Families (TANF). (Id.) The use of TANF benefits by refugees from the Middle East exceeds the use of the program by Latin American or South/Southeast Asian refugees — of which only 8.1 percent and 6.2 percent, respectively, use. (Id.) Additionally, 35.5 percent of refugees from the Middle East are on Supplemental Security Income (SSI), a welfare program that provides monthly cash benefits to those with disabilities. (Id.) Just 5.2 percent from Latin America and 21.5 percent from South/Southeast Asia are on SSI. (Id.)
When it comes to non-cash welfare programs, Middle Eastern refugees benefit even more significantly than those from anywhere else in the world. (Id.) Nearly 90 percent receive food stamps through the Supplemental Nutrition Assistance Program (SNAP), while only 44.2 percent from Latin America and 74 percent from South/Southeast Asia utilize the program. (Id.) Medicaid numbers also show similar results, as 76.4 percent of Middle Eastern refugees are on Medicaid, compared to just 24.5 percent from Latin America and 50.2 percent from South/Southeast Asia. (Id.)
The entire report can be viewed here.
House Committee Passes Bill to Require a Border Threat Assessment
Last Wednesday, the House Homeland Security Committee passed legislation introduced by Rep. Martha McSally (R-AZ) that would require a full analysis of the current and potential threats along our nation's southern border. (KVUE, Mar. 24, 2016) "We must move beyond the political rhetoric that on the one hand says the border is out of control, and on the other hand says it's more secure than ever and everything is fine," said Rep. McSally. (Id.) "The truth is that we have been given an incomplete picture as it relates to the situation on the border and we cannot verifiably say where between those two ends of the spectrum we actually are." (Id.)
H.R. 4482, the Southwest Border Security Threat Assessment Act, would require the Department of Homeland Security (DHS) to conduct a new Southwest Border Threat Analysis within 180 days of the bill being signed into law. The bill mandates that accurate assessments be made of the current and potential threats to the border, as well as the measures that need to be taken to counter them. (McSally Press Release, Mar. 23, 2016) The bill also requires the U.S. Border Patrol to design a new strategic plan based on DHS's threat analysis. (Id.)
The legislation is Rep. McSally's sixth bill related to national or border security to pass out of the committee and now awaits consideration on the House floor. (Id.)
Congressman Warns of Visa Waiver Program Vulnerabilities After Brussels Attacks
After the deadly terror attacks in Brussels last Tuesday, Rep. Ron DeSantis (R-FL) warned that many radicalized individuals living in Europe are still able to travel to the United States under the Visa Waiver Program (VWP) and urged its reform. (Washington Free Beacon, Mar. 22, 2016) The VWP currently allows citizens of 38 countries — including Belgium — to enter the U.S. for up to 90 days without having to obtain a visa or be interviewed, face-to-face, by a U.S. consular officer. (See FAIR Visa Waiver Program Issue Brief) "The visa waiver reform, this is something we have been perusing and the [Obama] administration has brushed us off at every turn," Rep. DeSantis said, explaining that current policy does not mandate more strenuous checks on individuals identified as coming from terrorist hotspots within Europe, such as the Belgian town of Molenbeek. (Washington Free Beacon, Mar. 22, 2016) "It's the case that if those folks are citizens of Belgium they qualify for the visa waiver program and can hop on a plane and get here," he added. (Id.) "Clearly, that is not adequate given what happened." (Id.)
Rather than working with Congress to enact serious reforms, the Obama administration announced a series of policy changes to the VWP after the Paris attacks in November. (See FAIR Legislative Update, Dec. 1, 2015) The administration said that it would begin screening VWP passport holders who have traveled to countries considered safe havens for terrorists and assess the cooperation of the 38 VWP nations in carrying out security reviews. Despite these policy declarations, effectively tracking the travel histories of citizens of 38 countries presents formidable challenges. Moreover, it is naïve to operate under the assumption that terrorists are only being radicalized in safe havens like Iraq and Syria, rather than European towns like Molenbeek.
In addition to the Obama administration's actions, Congress included Rep. Candice Miller's (R-MI) H.R. 158 in the fiscal year 2016 omnibus appropriations bill, which bars nationals from Syria, Iraq, Iran, and the Sudan, or individuals who have been to those countries in the last five years, from traveling to the U.S. without a visa. (SeeFAIR Legislative Update, Dec. 15, 2015) However, the administration immediately began granting waivers to individuals who traveled to Iraq and Iran for various purposes — blatantly disregarding the intent of Congress. (See FAIR Legislative Update, Jan. 26, 2016)
FAIR has consistently opposed the VWP which serves no legitimate national interest. The tragic events in Paris and Brussels demonstrate the legitimate national security concerns the VWP poses. At a minimum, the VWP should be immediately suspended until it can be truly reformed to screen out security threats. If the VWP cannot be effectively reformed to address security concerns, the only responsible solution is to eliminate it.
Georgia General Assembly Passes Anti-Sanctuary Legislation
The Georgia General Assembly passed a measure last week to ensure compliance with state laws that prohibit sanctuary policies. The Georgia House of Representatives passed Senate Bill (SB) 269 on March 15, just weeks after the state Senate approved the measure. (Augusta Chronicle, Mar. 16, 2016)
Georgia law currently prohibits local governments from enacting sanctuary policies which impede federal immigration enforcement efforts. (O.C.G.A. 36-80-23) SB 269, however, strengthens existing law by conditioning the receipt of state funding on local governments (1) complying with state law forbidding sanctuary policies, (2) requiring the use of E-Verify to verify the work authorization of newly hired employees, and (3) confirming they only give public benefits to those lawfully in the country. (SB 269 at §§ 1-2)
Senator Jesse Stone (R-23), sponsor of SB 269, introduced the bill as a simple measure to ensure enforcement of immigration law is not thwarted by local politics. "All this does is require a certification annually that there is no sanctuary city policy in effect at the local level," Sen. Stone said. (WABE, Mar. 21, 2016)
Indeed, SB 269 only adds a requirement to a compliance report that local governments in the state already file on an annual basis. "As far we know, there are no sanctuary cities in the state," commented Rusi Patel, associate general counsel with the Georgia Municipal Association. (Id.)"So really the big change here isn't that big of a change. It just adds another question to that report so the state can actually keep track of whether or not there are sanctuary cities," Patel added. (Id.)
The Georgia Senate overwhelmingly approved the measure by a 49-2 vote, while the Georgia House of Representatives passed SB 269 by a 118-52 vote. (Augusta Chronicle, Mar. 16, 2016) Governor Nathan Deal (R) has 40 days from the date he received SB 269 to approve the bill. If Governor Deal neither signs nor vetoes SB 269, the bill will automatically become law and go into effect July 1, 2016.