Legislative Update: 6/11/2014
A leaked memorandum drafted by Border Patrol Deputy Chief Ronald Vitiello revealed that as many as 90,000 illegal alien minors could cross the Mexican border into the U.S. this year. (Fox News, June 8, 2014) This figure is much greater than the astounding 60,000 previously estimated by Administration officials earlier this year for FY2014, up from about 6,000 unaccompanied minor crossings in 2011. (See FAIR Legislative Update, June 4, 2014)
Vitiello's memorandum comes after a flood of unaccompanied minors came across the Rio Grande Valley sector of the border last month in Texas, causing Homeland Security officials to use military bases to house the illegal alien minors and their families. (Los Angeles Times, June 5, 2014) Indeed, Border Patrol agents in that area have made nearly 160,000 arrests in less than eight months, a more than 70 percent increase over last year. (Associated Press, May 30, 2014) Now, according to the National Border Patrol Council (NBPC), the union representing border patrol agents, these aliens are being released back into the community. In fact, NBPC Vice-President Shawn Moran told reporters that Border Patrol agents in the San Diego sector plan to release an estimated 500 illegal aliens a week. (Breitbart, June 4, 2014) "Once processed, the illegal aliens will be given a court date and paperwork telling them when to report back," he said. (Id.) Thus far, Administration officials have refused to confirm the number of illegal aliens released into the United States, or the number of those released who have failed to report back as directed ("absconders"). (Associated Press, June 6, 2014; see also CQ Roll Call, June 9, 2014)
In the memorandum, Deputy Chief Vitiello recognized the Obama Administration's policy of refusing to enforce the law against the vast majority of illegal aliens was to blame for the recent deluge at the border. "Releasing other than Mexican family units, credible fear claims, and low-threat aliens on their own recognizance, along with facilitating family reunification of [unaccompanied alien minors] in lieu of repatriation to their country of citizenship, serve as incentives for additional individuals to follow the same path," Vitiello wrote. (Breitbart, June 6, 2014) He continued, "To stem the flow, adequate consequences must be delivered for illegal entry into the US and for facilitating human smuggling...These consequences must be delivered both at the border and within the interior US...to target individuals facilitating [unaccompanied alien minors] and family unit travel to the [United States]." (Id.)
Vitiello's memorandum also reveals that the increase in unaccompanied minor border crossers have impeded Border Patrol's ability to respond to other national security and public safety threats along the border. "The large quantity of DHS interdiction, intelligence, investigation, processing, detention and removal resources currently being dedicated to address [unaccompanied alien minors] is compromising DHS capabilities to address other transborder criminal areas, such as human smuggling and trafficking and illicit drug, weapons, commercial and financial operations," he wrote. (Washington Times, June 5, 2014) "Insufficient attention to these mission areas will have immediate and potentially long-lasting impacts on criminal enterprise operations within the Rio Grande Valley and across the country." (Id.)
Just ahead of the two year anniversary of the Obama Administration's unilateral implementation of the DREAM Act, the Department of Homeland Security (DHS) announced last week the renewal process for the amnesty program. (USCIS Press Release, June 5, 2014) Officially known as Deferred Action for Childhood Arrivals (DACA), the program grants a reprieve from deportation and work authorization for two years for certain illegal alien minors. (See FAIR Legislative Update, June 19, 2012; see also DACA Guidelines) As of April 2014, more than 560,000 illegal aliens have received amnesty through DACA. (USCIS Press Release, June 5, 2014)
In announcing the renewal process, DHS released a revised application form (now to be used for both initial and renewal applications) and instructions that change the education requirement of the administrative amnesty program. (See Form I-821D; Form I-821D Instructions) While initial applicants are required to demonstrate that they are enrolled in some form of "educational" program –including vocational training or even an English language course –at the time of applying, renewal applicants are not required to demonstrate that they have successfully completed, or are still even enrolled, in any such program. (See Form I-821D at p. 4) Instead, renewal applicants only need to show that they (1) did not depart the U.S. after August 15, 2012 without advance parole; (2) continuously resided in the U.S. since submitting the DACA request; and (3) have not been convicted of a felony, a "significant misdemeanor," or three or more misdemeanors, and do not pose a national security threat. (Form I-821D Instructions at p. 2)
The weakening of the education requirement was confirmed by U.S. Citizenship and Immigration Services (USCIS) officials during a "stakeholder" call hosted by the Administration on June 5 about the new renewal process. During the call, which included the now number two at the Department of Homeland Security (and former USCIS Director) Alejandro Mayorkas, officials stated that proof of graduation or continued enrollment is not required for renewal applications and advised listeners not to provide evidence that the renewal applicant failed to complete the education program listed on the original DACA application.
Moreover, in creating the DACA application process, the Administration did nothing to remedy the previous form's lax verification requirements. Indeed, there are no set documentary requirements indicating which types of evidence illegal aliens must show for the backdoor amnesty program, leaving the discretion as to acceptable documentation up the aliens themselves. For instance, all one must show to demonstrate he/she entered the U.S. before the age of 16 is easily forged documentation such as a baptismal record or report card (renewals do not have to resubmit such information). (See Form I-821D Instructions at p. 6) Additionally, nearly every category includes a catch-all provision permitting illegal alien applicants to submit, "Any other relevant document," to establish eligibility, which puts the burden on USCIS to determine the authenticity of these untraditional documents. (See generally Form I-821D Instructions)
The renewal process also essentially makes DACA a three-year — instead of a two-year — deferment from deportation program. Specifically, the new application form makes clear that DACA recipients can apply for renewal up to one-year after the expiration of their current deferment with no consequence. (Id. at p. 1) Rather, USCIS simply "encourages" DACA renewal applicants to reapply for the program within 120 days of expiration, but does not expressly require them to do so. (Id.)
Shortly after the announcement, Republican leaders of the House and Senate Judiciary Committees (the committees with jurisdiction over immigration) criticized the Obama Administration for ignoring the Constitution and circumventing Congress. "President Obama's extension of his unilaterally-created immigration program not only violates his constitutional duty to enforce the law, but the changes he made to it proactively invite fraud and abuse," charged House Judiciary Chairman Bob Goodlatte (R-VA). (Goodlatte Press Release, June 5, 2014) Senate Judiciary Ranking Member Chuck Grassley (R-IA) called DACA "a haven for loopholes and mischief, especially now with what appears to be a loosening of the education requirements and the lack of verification procedures in place to confirm continued eligibility." (Grassley Press Release, June 5, 2014) "It's no wonder there's an astounding and alarming number of minors crossing the border since DACA applications seem to be rubberstamped and lawful status is easily obtained," Grassley concluded. (Id.)
Likewise, FAIR issued a press release blasting the Obama Administration for dismantling immigration enforcement and encouraging more illegal immigration. Dan Stein, president of FAIR called the Administration's latest move "reckless and irresponsible," noting that "even while we're watching the chaotic result of this administration's non-enforcement policies at the border, the president is implementing even more incentives guaranteed to create more chaos." (FAIR Press Release, June 6, 2014) "Renewing a program (DACA) that indefinitely delays enforcement of our immigration laws just perpetuates the problem," Stein charged. (Id.)
According to a poll of 1,003 adults released by CNN last week, 61% of Americans disapprove of President Obama's handling of illegal immigration, and only 35% approve. (CNN/ORC International Poll, June 2, 2014) These results do not exclude non-citizens or non-voters. The poll was conducted by telephone between May 29 and June 1. (Id.)
In this latest poll, the President's overall approval rating was 43%, well above his 35% approval rating on illegal immigration. (Id.) While he did not receive majority approval for his handling of any of the twelve particular policy areas surveyed, his handling of illegal immigration ranked almost last, with only two issues receiving lower approval ratings. Not only that, but his approval rating on the issue of illegal immigration appears to be falling: this poll showed his lowest approval rating on illegal immigration that CNN reports finding since 2009. (Id.; brietbart.com, Jun. 4, 2014)
The breakdown of the poll shows those describing themselves as Democrats as much more likely to approve of the President's handling of illegal immigration than Republicans or Independents. While only 13% of Republicans and 28% of Independents approved, 60% of Democrats did. (CNN/ORC International Poll, June 2, 2014)
This poll, showing growing disapproval of the President's handling of illegal immigration, comes at a time when President Obama is hoping to pressure Republican Speaker of the House John Boehner (R-OH) to agree to an immigration deal on the President's terms. (See FAIR Legislative Update, Jun. 4, 2014) The President instructed Homeland Security Secretary Jeh Johnson not to further relax deportation policy before the August congressional recess in order to give the Speaker time to bring amnesty legislation to the floor before the midterm elections. (Associated Press, May 27, 2014; Politico, May 27, 2014)
Republican leaders in the GOP-controlled House of Representatives are sending mixed messages about whether the lower chamber will move immigration before the August recess.
Speaker John Boehner (R-OH) reportedly told amnesty activists last month that immigration could be on the House calendar in June. As one journalist for the Associated Press reported, "Some advocates who've met recently with Boehner say he's talking like he might try for an immigration vote in mid-June." (Erica Warner Tweet, May 30, 2014) Although the journalist did not identify the advocates, Speaker Boehner did meet with Gerald Kicanas, Catholic Bishop of Tucson. (Cronkite News, May 29, 2014) Kicanas and the U.S. Conference of Catholic Bishops Committee on Migration support passage of amnesty legislation this year. Of the May meeting with Boehner, Bishop Kicanas said, "Speaker Boehner was very clear in saying he does want to get this done, [and] he does need to continue to work with his Republican caucus to find a way to address this issue in the most effective way possible, but there are challenges." (Id.) Speaker Boehner declined to comment about the meeting. (Id.)
Despite Boehner's silence, a key Member of the House — former "Gang of Eight" member Mario Diaz-Balart (R-FL) — recently commented on the likelihood of immigration legislation being on the agenda in the summer. Speaking at an event sponsored by the pro-amnesty FWD.us in Miami, Diaz-Balart declared, "...we have a 50/50 percent chance of accomplishing immigration reform..." (Miami Herald, June 4, 2014) Representative Diaz-Balart also said that he was getting "positive feedback" from most of the Republican conference as he is working to draft legislation. (NBC News, June 4, 2014) "I feel very, very confident that a majority — a strong majority — of Republicans want to finally tackle this system that everyone understands is broken — with some caveats," he said. (Roll Call, June 4, 2014)
Despite Diaz-Balart's confidence that House Republicans want amnesty, the House Judiciary Chairman, who has jurisdiction over any amnesty bill that would come to the floor, says he knows of no plan to bring such a bill up this summer. Chairman Bob Goodlatte (R-VA) said, "I am not aware of any such decisions." (Breitbart, May 29, 2014) There is "no concerted plan" to grant amnesty, he added. (Id.) Nonetheless, reports indicate Diaz-Balart, along with Representatives Paul Ryan (R-WI) and Mick Mulvaney (R-SC) are quietly "whipping" (counting potential votes) of their fellow House Republicans in support of bringing amnesty legislation to the floor. (Breitbart, June 8, 2014)
Further adding to the ambiguity over timing, House Majority Leader Eric Cantor (R-VA) issued a memo last Friday identifying the House agenda for June, but immigration was not listed. (Roll Call, June 6, 2014; The Hill, June 6, 2014) At the beginning of this year, an earlier Cantor memo identified immigration as one of "several outstanding issues" that could be addressed. (See FAIR Legislative Update, Jan. 8, 2014) The House will be in session from now until June 26, and then from July 8 to July 31, when it breaks for the August recess.
Stay tuned to FAIR for more information...
On Monday, June 2, the New York Assembly passed Assembly Bill ("A.B.") 9640, otherwise known as the "New York state DREAM Act", by a vote of 84 to 47. The bill was introduced in May, less than two months after the Senate defeated an identical bill. (Wall Street Journal, May 13, 2014)
If enacted, A.B. 9640 may cost New York taxpayers as much as $25 million per year. (Id.; Latin Post, Jun. 3, 2014) This would be on top of the money New York taxpayers already spend providing illegal aliens with in-state tuition at New York's public colleges and universities. (NY CLS Educ § 6206) A.B. 9640 goes farther by making illegal aliens eligible for taxpayer-funded awards, academic performance awards, state-aided programs, scholarships, financial assistance, and necessary supplemental financial assistance, such as costs of books and maintenance, and student loans. (A.B. 9640)
Just two weeks ago, Assembly Speaker Sheldon Silver highlighted the DREAM Act as a personal priority for the legislative session. (Associated Press, May 19, 2014) "We will lead the way and continue fighting to ensure full passage of the DREAM Act, once and for all." (Wall Street Journal, May 13, 2014) Assemblyman Francisco Moya, the sponsor of A.B. 9640, commented, "By passing the New York DREAM Act for a second time this session, the Assembly has, once again, shown its deep commitment to our state's immigrants." (Queens Chronicle, Jun. 5, 2014) Moya added, "We have sent a strong message that being a good resident and a good student means more than a piece of paper." (Id.)
Remarkably, Silver is promoting passage of the DREAM Act despite New York's higher education system's budget crisis, which has increasingly shifted the costs of public higher education onto its citizen and legal resident students and their families. Between 2008 and 2013, New York state financial support for public higher education decreased by 14.7 percent, or by a total of nearly $2 billion, despite significant increases in enrollment in the State University of New York and City University of New York schools. (Center on Budget and Policy Priorities, 2013; NYSUT, Jan. 16, 2014) During this period, New York's public colleges and universities were forced to increase tuition on average by more than 17.5 percent, reduce grants and scholarships, eliminate staff positions, close campuses, eliminate academic programs, reduce class offerings, increase class sizes, postpone necessary renovations, and make countless other subtractions. (Center on Budget and Policy Priorities, 2013; Statesman, Mar. 25, 2013; NYSUT, Mar. 3, 2011; New York Times, Apr. 7, 2010; New York Times, Dec. 3, 2010; Executive Budget for Higher Education Testimony, Feb. 6, 2014; SwimSwam, Apr.4, 2013) As a result of New York's higher education budget cuts and annual tuition hikes, New York's graduates possess more education-related debt than ever, carrying an average of $25,537 of debt, with over 60 percent of students relying on loans to fund their education. (Institute for College Access, 2013)
Senator Mark Grisanti, who represents New York's 60th District, opposes the DREAM Act, insisting that taxpayers should not be forced to subsidize the education of illegal aliens. (Wall Street Journal, Mar. 17, 2014) "I simply cannot justify spending tens of millions of taxpayer dollars annually to pay for tuition for illegal immigrants when so many law-abiding families are struggling to meet the ever-increasing costs of higher education for their own children," said Senator Grisanti. (Id.) Assemblyman Kieran Michael Lalor, who represents the 105th District, voted against A.B. 9640 and expressed his concern that the bill sends the wrong message to the country's legal and prospective immigrants. (Legislative Gazette, May 28, 2014) "Today the Assembly is telling them that they're fools to try to do the right thing," Lalor said. (Id.) "The Assembly Democrats are saying they should have skipped the line and broken the law. This bill would reward those who cheated the system. It's not fair to the millions who are waiting on line and trying to do the right thing." (Id.)
The Senate Committee on Higher Education is next in line to consider A.B. 9640. If the bill is approved by the committee, the full Senate must vote on it. Governor Andrew Cuomo has already indicated that he plans to sign A.B. 9640 if the bill makes it to his desk. (New York Daily News, Feb. 24, 2014)