Legislative Update: 5/21/2014
House Closes a Door to Military Amnesty, but Senate Remains Open...
Thanks to the hard work of true immigration reformers, on Friday, House Majority Leader Eric Cantor (R-VA) announced that he would not allow Representative Jeff Denham's (R-CA) military amnesty proposal to either be attached as an amendment to the must-pass defense bill or be considered for a vote by itself. (Associated Press, May 16, 2014)
Representative Jeff Denham (R-CA) has been trying to convince the House to pass his ENLIST Act (H.R. 2377), which would allow certain illegal aliens to join the military and grant them amnesty upon enlistment. (See FAIR's H.R. 2377 Bill Summary) Denham lobbied to insert the ENLIST Act as an amendment to National Defense Authorization Act (NDAA) when the House Armed Services Committee took it up earlier this month, but it was not added. (The Hill, May 8, 2014) Since then Denham has been strategizing to get it passed another way, either as an amendment when the NDAA comes to the full House floor, or even as a stand-alone bill. (See Roll Call, May 15, 2014)
However, House Majority Leader Eric Cantor dealt a critical blow to those efforts on Friday when Cantor's spokesman Doug Heye declared, "No proposed ENLIST amendments to NDAA will be made in order." (Associated Press, May 16, 2014) House Speaker John Boehner (R-OH) backed up the Majority Leader earlier this week: "We have supported it in the past but trying to do this on the national defense authorization bill seems to us be an inappropriate place to do it." (Associated Press, May 19, 2014)
Nonetheless, the two leaders appear to disagree about the ENLIST Act's future as a stand-alone bill. While Boehner said that there had been discussions about allowing Denham a stand-alone vote on his bill but no decision has been made, Cantor's spokesman said days earlier that the Majority Leader would not allow a stand-alone vote on the ENLIST Act. (Id.; Associated Press, May 16, 2014) The House is debating the NDAA on the full House floor this week.
Even if true immigration reformers succeed in the House, Senators could still push military amnesty into the upper chamber's defense bill, creating a showdown in conference committee. At the beginning of May, Senator Carl Levin (D-MI), Chairman of the Senate Armed Services Committee, stated that he was "all for" adding military amnesty to the NDAA. (Politico, May 2, 2014) Senator Levin even said the measure could potentially end up incorporated into his committee's underlying defense policy bill. "I'd like to see it happen," he said. (The Hill, May 13, 2014)
Levin has the support of Senate Majority Whip Dick Durbin (D-IL), who has been trying to sneak amnesty into the NDAA for several years. (See FAIR's Who DREAMed up Putting Amnesty in the Defense Bill?, Apr. 4, 2014) Durbin, as chair of the Senate Appropriations Subcommittee on Defense, held a field hearing Monday with illegal aliens enrolled in a junior military academy in order to generate support for military amnesty. (Senate Appropriations website, Defense Field Hearing: Immigrant Enlistment: A Force Multiplier for the U.S. Armed Forces)
The Senate Armed Services Committee will consider the NDAA this week, and could still insert amnesty directly into the must-pass defense bill, making it harder to remove as the legislative process proceeds. (See Senate Armed Services Committee, Subcommittee Markups for Fiscal Year 2015 NDAA) Military amnesty must be opposed, particularly because of the national security challenges and other burdens it places on the military when its personnel is already being drastically reduced. (See FAIR's Top Ten Reasons to Oppose the ENLIST Act) Stay tuned to FAIR for details...
ACLU Threatens Locals in Effort to Shut Down Immigration Enforcement
Last week, the American Civil Liberties Union sent a letter to sheriffs across California with a thinly veiled threat to sue if they continue to cooperate in immigration enforcement efforts. In the letter, the ACLU tells these sheriffs to stop holding criminal aliens — aliens convicted of crimes who are in jail — so that federal authorities can assume custody of them when they finish their sentences and begin the removal process. (ACLU Letter, May 2, 2014) The letter then conspicuously states, in bold letters set apart from the rest of the text, that any law enforcement agency that continues to do so "may be held liable for damages" under federal law.
The ACLU letter takes direct aim at the immigration detainer. A detainer is a request made by Immigration and Customs Enforcement (ICE) to a local law enforcement agency to hold an alien — generally for a period of no more than 48 hours — until ICE can assume custody of him/her. (8 C.F.R. 287.7(d)) Detainers are critically important to immigration enforcement because it is virtually impossible for ICE to be at the doors of every single jail across the country, 24 hours a day, to assume custody of aliens it wishes to deport when they finish their jail sentences. To be successful in deporting criminal aliens, ICE needs the assistance of state and local law enforcement agencies, both in terms of notification of a pending release and a 48-hour hold. If the local agency does not hold the alien for ICE, it simply releases the criminal back onto the streets.
The ACLU, however, argues that detainers are unconstitutional unless they are accompanied by a judicial determination of probable cause. The ACLU letter makes this claim based on an erroneous reading of a single federal court decision handed down in April: Miranda-Olivares v. Clackamas County (Case No. 3:12-cv-021317-ST).
In Miranda-Olivares v. Clackamas County, an alien, Miranda-Olivares was arrested and jailed on March 14, 2012 for violating a domestic abuse restraining order. The next day, ICE issued a detainer to the county jail, asking it to hold Miranda-Olivares so ICE could assume custody of her upon release. Meanwhile, the family of Miranda-Olivares was ready to post bail (as both parties acknowledge), but the jail told the family if it did she would not be released due to a hold placed on her by ICE. On March 29, Miranda-Olivares, still in the custody of the jail, was convicted of contempt of court (for violating the domestic abuse restraining order) and the court sentenced her to time served, making her immediately eligible for release. The jail, pursuant to the ICE detainer, held Miranda-Olivares for an additional 19 hours, at which time it transferred custody of her to ICE. Miranda-Olivares sued the County, claiming the jail's detention of her beyond the time she could have posted bail, violated the search and seizure provisions found in the Fourth Amendment of the U.S. Constitution.
The Federal District Court for Oregon ruled in favor of Miranda-Olivares because it found that the alien's continued detention after completion of her sentence for violating the restraining order must be based on probable cause. Probable cause is met when an officer has a subjective, objective basis for believing that an individual has violated the law. (See State v. Martin, 260 Ore. App. 461, 471 (Ore. Ct. App. 2014; State v. Anderson, 259 Ore. App. 448, 451 (2013)(quoting State v. Stookey, 255 Ore. App 489, 491, 297 P.3d 548 (2013) (citations omitted) (emphasis in original)) Moreover, nowhere in its decision did the Oregon federal court hold (or even consider the argument) that a statement of probable cause must be accompanied by some sort of judicial approval. Instead, the District Court closely examined the text of the ICE detainer form (Form I-247).
The Court determined that, standing alone, the ICE detainer issued with respect to Miranda-Olivares did not demonstrate probable cause. The detainer form offered a list of four options officers could check to serve as the basis for the detainer. The box checked on the form for Miranda-Olivares stated merely that ICE had "initiated an investigation" to determine whether the individual in question was subject to removal. Based on these words, the Court held that "it was not reasonable for the Jail to believe it had probable cause to detain Miranda-Olivares based on the checked box on the ICE detainer." The court held that in its view, this checked box did not show that probable cause had been demonstrated on the face of the detainer. Thus the Court found that the jail's detention of Miranda-Olivares past the end of her sentence violated the Fourth Amendment.
While the holding of Miranda-Olivares is disappointing for true immigration reformers, and will hopefully be appealed, it is important to note that the decision is already irrelevant. Only a few months after Miranda-Olivares filed her complaint, ICE changed its detainer policy and the I-247 detainer form. The new form replaces the language stating ICE has "initiated an investigation" with respect to an alien with language that states ICE has "determined that there is reason to believe the individual is an alien subject to removal from the United States." This language — AS THE ACLU ADMITS — satisfies as demonstrating probable cause on the face of the detainer. (See ACLU article, Jan. 23, 2013)
While the ACLU still argues that a judge must approve the probable cause determination for holding an alien, this was not the holding of Miranda-Olivares v. Clackamas County. Moreover, since ICE holds are generally limited to 48 hours, there is a strong argument that local law enforcement agencies may, without violating the Constitution, hold an alien for that reasonable period of time based on the probable cause determination found in the new I-247 detainer form and without judicial approval.
Unfortunately, and despite the fact that ICE detainer form now contains a statement of probable cause, numerous Oregon counties stopped honoring all ICE detainers as a result of Miranda-Olivares. Counties in Colorado and Washington State soon followed suit. (See, e.g., Associated Press, Apr. 30, 2014) And now, after receiving the ACLU letter, the California State Sheriffs' Association has advised all sheriffs in California via email to stop honoring all ICE detainers, no matter how violent the offense committed by the alien. While these counties may be legitimately worried they cannot afford a legal defense if sued, the result will be devastating. California consistently has the highest number of criminal aliens in the country; during President Obama's first term in office (FY2008-2012), Los Angeles County Jail alone received 28,000 detainers from ICE. (See TRAC, Who are the Targets of ICE Detainers? (Feb. 2013))
Remarkably, in the midst of the ACLU assault on immigration enforcement, the Department of Homeland Security and ICE have stayed absolutely silent, even though the Administration's core immigration enforcement priority is the removal of criminal aliens.
Would a GOP Led Senate Pass Amnesty?
Several GOP senators have recently suggested that the Senate will pass immigration bills next session if the Republican Party wins enough seats in November to control the upper chamber. (The Hill, May 15, 2014)
Instead of passing another mass 1,200 page bill, however, the senators indicated that they would like to see the Senate take up immigration in a piecemeal fashion, as Speaker Boehner has promised to do in the House. Senate Republican Whip John Cornyn (R-TX) said: "it could pass if we break it down into smaller pieces. [The House] has always been amenable to passing smaller bills on a step-by-step basis." (The Hill, May 15, 2014) Senator Rubio (R-FL), whose high profile backing of the Senate's "comprehensive" bill was instrumental to its passage last year, said that it is "ridiculous" to believe that immigration must be done in one large bill and that he believed the Senate could pass "sequential" bills with the House. (Id.) Senator Grassley (R-IA), who is poised to be chairman of the Senate Judiciary Committee if the GOP takes back the Senate, also indicated openness to voting to move immigration legislation in the next Congress if the GOP wins a majority of Senate seats. (Id.)
Many amnesty advocates have declared that the window for legislation legalizing the vast majority of illegal aliens will close at the end of 2014. Whether or not control of the Senate changes hands, two key aspects of the political situation will change at the end of 2014. First, S. 744, the amnesty bill passed by the Senate will expire, so the Senate would need to start over. Second, the focus of politicians will start to shift to the 2016 presidential primary season, making it even more difficult to pass legislation. (Politico, May 7, 2014) These considerations are the reason amnesty proponents have been saying it's now or never. Gang-of-Eight member Senator Chuck Schumer said recently: "I want to be clear what our window is for the House to pass immigration reform — it is the window between early June and the August recess." (Politico, May 14, 2014) Representative Mario Diaz-Balart (R-FL), one of the proponents of amnesty in the Republican House, expressed a similar view: "I don't see how politically it gets easier down the road." (Politico, Dec. 11, 2013) Representative Luis Gutierrez (D-IL) agrees: "I don't see the Senate, in 2015, taking this issue back up. The clock ends on Jan. 2 of next year." (Id.)
Regardless of what happens in the Senate this November, President Obama will still be in office for two more years, guaranteeing that even if Congress passes new laws, only those favorable to illegal aliens will be enforced. Despite supporting a path to legal status for illegal aliens, Speaker John Boehner (R-OH) continues to point to President Obama's circumvention of laws as the reason he has yet to move amnesty in the House. "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," he said in February. ( Fox News, Feb. 6, 2014)
Obama: Immigration Enforcement "Isn't Smart"
President Obama told a group of law enforcement officials last week that enforcing immigration laws "isn't smart." (See Daily Caller, May 13, 2014; for a list of organizations in attendance see Weekly Standard, May 13, 2014) Immigration enforcement is "just not a good use of our resources. It's not smart. It doesn't make sense," Obama said. (See Daily Caller, May 13, 2014) The President went on to claim that interior enforcement of immigration laws prevents police from "chasing gang bangers and going after violent criminals." (See Weekly Standard, May 13, 2014)
President Obama made the comments during a meeting with law enforcement officers at the White House during D.C.'s annual "police week." Obama also used the meeting to urge law enforcement to pressure House Speaker John Boehner (R-OH) into passing "comprehensive" immigration reform. Telling the officials it is important for the Speaker to hear from "unexpected voices," Obama declared that passing amnesty legislation is "the right thing to do for our safety and security." (Id.)
The President's rebuke of immigration enforcement occurred on the same day that pro-amnesty activists pressured leading Senate Democrats to demand that the Obama Administration halt deportations. The group — wearing shirts that read, "Obama Deports Parents!" — went to the offices of Senate Majority Leader Harry Reid (D-NV) and Gang of Eight Senators Chuck Schumer (D-NY) and Michael Bennet (D-CO), demanding an end to immigration enforcement. (Associated Press, May 14, 2014)
K-12 Education Guidance Benefits Illegal Aliens
This month, the Obama Administration revised 2011 guidance to public elementary and postsecondary educators that requires "equal access" to K-12 education for illegal aliens. (See Department of Education press release, May 8, 2014; see also Politico, May 8, 2014; NBC News, May 7, 2014)
Like the 2011 version, the 2014 guidance includes a "Dear Colleague" letter from the Departments of Education and Justice declaring that the U.S. Supreme Court case Plyler v. Doe and Federal civil rights laws prohibit school districts from excluding students who are — or have parents who are (or are perceived to be) — illegal aliens. (See 2014 Dear Colleague Letter at p. 1; see also 2011 Dear Colleague Letter at p. 1; see also Plyler v. Doe, 457 U.S. 202 (1982); 42 U.S.C. § 2000-6; 42 U.S.C. § 2000d)) These letters reference a 1982 Supreme Court decision which relied on the Fourteenth Amendment's Equal Protection Clause to strike down a Texas statute that charged K-12 school tuition to illegal alien children. (Plyler v. Doe, 457 U.S. 202 (1982)) In its ruling, the Court rejected three arguments that Texas made to support its policy. First, the Court held that Texas placed "no evidence in the record" to show that illegal entrants imposed a significant burden on the State, and that even if there were such a burden, the State did not show that charging tuition would deter an influx of illegal immigrants. (Id. at 228-229). Second, "the record in no way support[ed Texas'] claim that exclusion of undocumented children is likely to improve the overall quality of education in the State." (Id. at 229) Specifically, there was no evidence that "a proportionately small diminution of the funds spent on each child... will have a grave impact on the quality of education." (Id. (internal quotes omitted)) Finally, Texas could not support its claim that illegal alien children are less likely than citizens to remain within Texas and utilize their education. (Id. at 229-230) Nothing in Plyler expressly forbids states from passing a statute like Texas'. However, such state laws must withstand constitutional challenge under the Equal Protection Clause.
Both "Dear Colleague" letters assert that school districts' collection of identifying information about citizenship and/or lawful status "may chill or discourage" student enrollment, in contravention of Federal law. (See 2014 Dear Colleague Letter at p. 1, 3; see also 2011 Dear Colleague Letter at p. 1, 2) Social security numbers and birth certificates (which contain such information about citizenship and/or lawful status), if collected, could demonstrate the substantial state burden of educating illegal aliens and show its negative effects on the quality of education on citizen children. (See FAIR Legislative Update, Nov. 7, 2011) The Obama Administration strategically drafted this guidance to place limits on the collection of the very evidence which was lacking in Plyler and could serve as the constitutional justification for a state law charging public school tuition to illegal aliens.(Id.)
Furthermore, the Obama Administration revised its 2011 guidance to add new language expressly protecting illegal alien parents and guardians. First, the Administration's new guidance states that school districts cannot require a parent or guardian's state-issued identification or driver's license be the only form of acceptable proof of residency for school enrollment. (See 2014 Fact Sheet at p. 1; but see 2011 Fact Sheet at p. 1) Second, the revised 2014 guidance adds language specifying that school districts cannot require parents or guardians to provide social security numbers in order for their child to enroll in or attend school. (See 2014 Fact Sheet at p. 2; but see 2011 Fact Sheet at p. 2) Finally, the guidance indicates that school districts must use languages other than English when communicating material enrollment information to limited English proficient parents or guardians of students. (2014 Questions and Answers at Q-11; but see 2011 Questions and Answers)
Secretary of Education Arne Duncan said that the Obama Administration decided to revise the guidance after receiving 17 complaints about school enrollment policies over the course of three years. (Politico, May 8, 2014) Those complaints were about school districts in Arizona, Colorado, Kansas, Louisiana, Michigan, New Mexico, North Carolina, Ohio, South Carolina, Virginia, and the District of Columbia. (NBC News, May 7, 2014) Prompted by complaints from groups like the Southern Poverty Law Center, the Administration added language in the revised guidance about requests for social security numbers and translations of enrollment paperwork into other languages. (See 2014 Questions and Answers at Q-11; 2014 Fact Sheet at p. 2; see also NBC News, Feb. 18, 2014)
California Senate Passes Bill to Give Professional Licenses to Illegal Aliens
On Thursday, May 8, the California Senate passed Senate Bill ("S.B.") 1159, which allows the State of California to give business and professional licenses to illegal aliens. The bill accomplishes this by allowing over 40 state boards to accept an applicant's individual taxpayer identification number (ITIN) in lieu of a social security number for proof of identity. (Los Angeles Times, May 11, 2014) If passed, the bill makes illegal aliens eligible to practice in over two hundred different fields, including medicine, pharmacy, psychiatry, security and real estate, despite federal law's prohibition on the employment of unauthorized aliens. (S.B. 1159; 8 U.S.C. § 1324(a))
S.B. 1159 was introduced by Senator Ricardo Lara, whose parents were illegal aliens, only a few months after the California Legislature approved a bill allowing illegal aliens to obtain law licenses. (Los Angeles Times, May 11, 2014) Lara explained the bill as an extension of other measures enacted by California in recent years to provide illegal aliens with tools to assimilate in the United States, including driver's licenses, in-state tuition and access to state financial aid and private funds held by the state universities. (Los Angeles Daily News, May 12, 2014) Senator Lara claims that S.B. 1159 will ensure "more Californians have an effective means of economic mobility and self-sufficiency." (Los Angeles Times, May 11, 2014) Senator Lara, however, did not comment on how S.B. 1159 will impact the prospects of California's unemployed citizen and legal residents seeking jobs in the professions affected.
Others view S.B. 1159 as yet another impediment to the enforcement of federal immigration law by the State of California. Ira Mehlman, spokesman for the Federation for American Immigration Reform ("FAIR") commented, "California is doing everything in its power to blur any distinction between those who are legally present and those who are not." (Id.) S.B. 1159 flies in the face of federal law, which prohibits employers from hiring unauthorized workers. (8 U.S.C. § 1324(a))
Republicans also expressed concern over the cost of implementing S.B. 1159. Peter DeMarco, spokesman for the Senate Republican caucus, warned that tax authorities would "not always be able to correctly identify licensees to ensure proper collection of taxes associated with the licensee's practice of profession."(Id.) Illegal immigration already costs California an estimated $21.8 billion a year. (FAIR Cost Study, 2010)
The Assembly will now consider S.B. 1159. If passed by the Assembly, Governor Jerry Brown must sign the bill before it can become law. S.B. 1159 is just one of a handful of pro-illegal immigration bills introduced in California this year. The California Legislature is also considering providing taxpayer subsidized health care, insurance coverage and student loans to illegal aliens living in the state. (See FAIR's Legislative Update, Apr. 30, 2014; see also FAIR's Legislative Update, Apr. 16, 2014)