Legislative Update: 9/30/2014
Department of Defense Announces Military Amnesty
Through the issuance of a memo last Thursday, the United States Department of Defense began allowing illegal aliens to enlist in the armed forces. The memo, less than a page long, simply declared that Deferred Action for Childhood Arrivals (DACA) beneficiaries are now eligible to enlist through a program called MAVNI: Military Accessions Vital to National Interest.
MAVNI is a limited program that allows nonimmigrants (i.e. legal, temporary aliens) with health care backgrounds or certain language skills to fight in the War on Terror. (See MAVNI Fact Sheet, May, 2012) While federal law generally limits enlistment in the armed forces to U.S. citizens and green card holders, the Bush Administration launched MAVNI in 2008 based on a narrow exception in federal law that allows the Secretary of Defense to approve the enlistment of individuals who are otherwise not qualified to enlist if "such enlistment is vital to the national interest." (See 10 U.S.C. § 504(b)(2)) Now, under the new DOD memo, the program will recruit illegal aliens as well.
Illegal aliens who enlist through MAVNI will be immediately eligible for citizenship. Generally, all aliens who serve in the military are put on an expedited path to citizenship. Aliens who serve in the military during peacetime are eligible for citizenship after one year of service (as opposed to five years for the average green card holder). (INA § 328) However, through an executive order issued by President George W. Bush in 2002, aliens who serve honorably in the military during the War on Terror (which is on-going) are immediately eligible to obtain citizenship. (Executive Order No. 13269, July 3, 2002 (effective as of September 11, 2001); see also INA §§ 316 and 329) One day of service is sufficient to be eligible and all fees are waived. (See USCIS Policy Manual, Volume 12, Part I, Chapter 3 and Chapter 5; see also INA § 329)
With the new DOD memo, the Obama Administration is fulfilling a promise it made in late May to begin implementing a military amnesty through MAVNI. (The New York Times, May 31, 2014) At that time, DOD officials testified before a Senate field hearing in Chicago on the merits of allowing so-called "DREAMers" to enlist in the Armed Forces. (Breitbart, May 20, 2014) Jessica Wright, the Acting Undersecretary for Personnel and Readiness at the Defense Department, said the Obama Administration is considering ways it can administratively enlist certain illegal aliens who allegedly came to the U.S. as minors. Arguing that doing so would help satisfy the military's need for more diversity, Wright said: "Legislation like this would assist the military and potentially our recruiting efforts, and increase the pool of eligible young individuals that we can enlist. While the DREAM Act may create a larger pool of these enlistees, it may also further the diversity of our department, our fleet and our force." (See Roll Call Transcript, May 19, 2014)
However, no sooner did Defense Secretary Hagel confirm the Pentagon's intent to expand MAVNI to illegal aliens than he also announced he would delay implementation of his plan until August. The delay came at the request of President Obama, who at that time wanted to delay executive action on immigration until the August recess. (The New York Times, May 31, 2014) While President Obama once more postponed his plans for an executive amnesty, this time until after the election, it seems it has made an exception for the enlistment of illegal aliens.
Even though amnesty advocates will argue allowing DACA beneficiaries to enlist is only a token gesture by the President, it will likely be expanded exponentially. Earlier this year, amnesty advocates fought for the passage of the ENLIST Act (H.R. 2377), which would allow all illegal aliens to enlist in the military and be immediately eligible for citizenship. While they lost that battle, they have continued to pressure President Obama to administratively implement the legislation.
ICE: 70% of Illegal Alien Families Are No-Shows
An Immigration and Customs Enforcement (ICE) official last week disclosed that 70% of illegal alien families who illegally crossed the border this year have failed to appear at required follow-up appointments with immigration agents 15 days after their release. (Associated Press, Sept. 25, 2014) As immigration agents have apprehended about 66,000 illegal aliens traveling as families in Fiscal Year 2014, this equals roughly 41,000 of that total. (Id.; see also U.S. Customs and Border Patrol statistics)
The ICE official made the statement to amnesty advocates during a private meeting at ICE's D.C. headquarters. The activists were voicing their strong objections to the Department of Homeland Security's (DHS) decision to open a temporary detention center for 700 illegal aliens on the Federal Law Enforcement Training Center's (FLETC) Artesia, New Mexico campus. (See FAIR Legislative Update, June 25, 2014) In an attempt to justify the detention space, the ICE official revealed the high number of absconders and urged the meeting attendees to find ways to encourage the illegal aliens to show up so their cases could be processed. (Associated Press, Sept. 25, 2014)
While an abscondence rate of 70 percent is alarming, equally shocking is the fact that ICE continues to release these illegal aliens into the United States. The main reason is that amnesty advocates have steadfastly fought the construction of new detention space and have successfully pressured the government to close what detention space exists.
Indeed, until the government opened up space to families at the FLETC facility in New Mexico, there was only one detention facility in the country (located in Pennsylvania) that housed alien families with children. (Los Angeles Times, June 20, 2014) However, this facility can only hold 96 aliens. (Id.) DHS had additional family detention space at the Hutto Detention Facility near Austin, Texas (which had about 400 beds), but stopped housing families there after open borders groups such as the ACLU complained that conditions were not appropriate for minors. In 2012, when DHS began to see a marked increase in the number of illegal alien minors crossing the border, it announced it would seek bids to build a new family detention center in Texas. (Id.) However, DHS also scrapped that plan when open borders groups objected to detaining illegal alien family members. (San Antonio Express-News, Feb. 7, 2012; Associated Press, June 20, 2014)
The leaked comments of the ICE official show how difficult it has been to get information out of the Obama Administration regarding the release of illegal aliens. Senior DHS officials as well as the agency's public affairs office have repeatedly avoided directly answering requests from reporters to quantify the number of no-shows. (Associated Press, Sept. 25, 2014)
Inspector General: Visa Security Program Poorly Run and Underutilized
This month, the Office of Inspector General (OIG) of the Department of Homeland Security (DHS) released a scathing review of DHS's Visa Security Program. The review revealed that the program, which is intended to prevent terrorists and other ineligible applicants from receiving visas, is so poorly run that the OIG cannot accurately assess the program's effectiveness. (OIG "The DHS Visa Security Program" (OIG Report), September 2014)
Congress created the DHS Visa Security Program through the Homeland Security Act of 2002 in response to the 9/11 terrorist attacks. Specifically, Section 428 of the Act authorizes the DHS Secretary to place Immigration and Customs (ICE) agents at "each diplomatic and consular post at which visas are issued." (P.L. 107-296, § 428(e)(1)) ICE agents then train consular officers — who work for the State Department and have sole legal authority to process visa applications — to identify applicants who raise national security concerns. (See OIG Report at 5-6; P.L. 107-296, § 428(e)(2)(A)-(C))
Despite the critical importance of the program in protecting national security, the OIG found that the program is significantly underutilized. Currently, the government has implemented the Visa Security Program at only 20 of 225 visa-issuing consular offices. (OIG Report at 25) Indeed, ICE released a five year expansion plan in 2007 that included establishing the program in 32 additional locations yet it has only been implemented in 12 locations. (Id.) In 2012, DHS attempted to locate ICE agents at consular posts in Turkey and Kenya, but the State Department refused to accept the agents in Turkey and only granted approval of a reduced staffing level in Kenya. (Id. at 6)
The OIG report also found that ICE performance measures are inadequate, leaving ICE unable to ensure that the Visa Security Program is operating as intended. (Id. at 1) Specifically, the report noted that "ICE did not ensure that (1) performance data is collected and reported, (2) consular officers are properly trained, and (3) staffing and funding needs are adequately determined. (Id. at 8) Alarmingly, the report "identified inconsistencies in the training provided" as well as "conflicting views from [ICE employees] and consular officers regarding the extent to which training is provided." (Id. at 15-16)
In total, the OIG made 10 recommendations to improve the program and ICE agreed to implement all of them. (See id. at 2, 13, 19, 22, 24, 27)
42 Democrats Ask President Obama to Meet with Illegal Aliens
Last week, forty-two Democrats wrote to President Obama to request that he meet with illegal aliens. (Letter to Obama, Sept. 18, 2014; see also Politico, Sept. 18, 2014; Arizona Daily Star, Sept. 19, 2014; The Hill, Sept. 22, 2014) The purpose of the meeting would be to "provide solace" to illegal aliens after President Obama delayed his planned executive action on immigration. (See FAIR Legislative Update, Sept. 9, 2014) Remarkably, Rep. Raul Grijalva (D-AZ), who spearheaded the letter, claimed the proposed meeting with illegal aliens would be "depoliticized." (Politico, Sept. 18, 2014)
The Democrats who signed the letter requested that President Obama "reinforce" his commitment to unilaterally grant amnesty to millions of illegal aliens. (Letter to Obama, Sept. 18, 2014) The letter references the President's Rose Garden speech in June in which he promised to "to fix as much of our immigration system as I can on my own, without Congress." (See White House remarks, June 30, 2014)
President Obama has previously welcomed beneficiaries of his Deferred Action for Childhood Arrivals (DACA) program to the White House or presidential events. Last year, President Obama hosted a meeting with DACA beneficiaries at the White House in an effort to pass the Senate amnesty bill. (See White House statement, May 21, 2013) Early this year, an illegal alien was invited to sit with the First Lady at the State of the Union (White House statement, Jan. 28, 2014), and as the Administration was planning for renewal of the DACA program this summer, the White House publicly honored ten illegal aliens as "DACA Champions of Change." (See White House DACA Champions of Change)
How Many Illegal Aliens Have Received Obamacare?
For months, the Administration has delayed revoking coverage under the Affordable Care Act (Obamacare) to aliens who cannot establish their lawful presence. (Washington Times, Sept. 22, 2014) While the original deadline to sign up for coverage for the year was March 31, 2014, for the past six months, the Administration has allowed all of the nearly one million applicants who initially provided immigration information "inconsistent" with the government's records to keep their coverage until the end of September, giving them until September 5, and then until September 30, to submit documentation verifying their legal status. (Id.; Washington Examiner, Sept. 15, 2014; State Column, Sept. 16, 2014) According to the latest information the government has released, as of Sept. 5, 115,000 had not submitted documents and were set to lose coverage today. (Id.)
During the debate leading up to Obamacare's passage, the President promised that illegal aliens would be ineligible for subsidized coverage, but in practice, the law's faulty enrollment process does not live up to this promise because it does not require aliens to present their immigration documents up front. (See Remarks by President Obama to Congress, Sept. 9, 2009; FAIR Legislative Update, Apr. 16, 2014) Rather than requiring enrollees to present documents at enrollment to prove their eligibility before receiving subsidized health insurance under the federal exchanges, the Centers for Medicare and Medicaid Services (CMS) instead allows individuals to sign up by simply attesting to their eligibility and describing their immigration documents. (See GAO Report, July 23, 2014; see also FAIR Legislative Update, Apr. 16, 2014) CMS then attempts to verify the information provided, such as a Social Security or green card number, with the information the government has on file. (Id.; see alsoCMS Press Release, Aug. 12, 2014) If there is what CMS calls an "inconsistency" or an "immigration data-matching issue," meaning the enrollee may be in the country illegally, CMS will reach out to the enrollee to ask for the documentation, but in the meantime, the enrollee continues to receive the coverage. (Id.)
By the end of the 2014 open enrollment period, which was originally March 31, but which the Administration extended until April and even beyond in some circumstances, nearly one million applications on the federal exchanges had such "immigration data-matching issues," leading to a six month long process where CMS attempted to allow as many of these enrollees as possible to keep their coverage. (Id.; see Washington Post, Mar. 25, 2014) In a press release last August, CMS admitted that by May, 970,000 people with citizenship or immigration data-matching errors had enrolled. (CMS Press Release , Aug. 12, 2014). (Id.) CMS also stated that by August, it had been able to "close" 450,000 cases by contacting enrollees by mail, email, and phone. (Id.) However, it did not explain what happened to the "closed" cases: whether most or all of these enrollees had indeed been able to prove they were legally in the country, and if so, how CMS was able to finally verify their documentation. (Id.) Nor did the Administration provide statistics on how so many inconsistencies arose in the first place. (Id.) The press release also established the September 5 deadline for the 310,000 enrollees who had not responded, and explained that it had sent a letter to all informing them that their coverage would end if they did not meet the deadline. (Id.; see also USA Today, Aug. 13, 2015; Idaho Statesman, Aug. 13, 2014; Bangor Daily News, Aug. 13, 2014; al.com; Aug. 13, 2014; Chicago Sun-Times, Aug. 13, 2014; Charlotte Observer, Aug. 13, 2014; San Antonio Express News, Aug. 12, 2014; azcentral.com, Aug. 13, 2014; Salt Lake Tribune, Aug. 14, 2014; Columbus Dispatch, Aug. 14, 2014; nj.com, Aug. 14, 2014)
However, once Sept. 5 arrived, CMS again extended the deadline until September 30 for the 115,000 enrollees who failed to meet it. (State Column, Sept. 16, 2014) It also created a new, 60 day enrollment window for those who do lose coverage to regain their coverage, meaning that even the September 30 deadline is not exactly a hard deadline. (Kaiser Health News, Sept. 6, 2014)
Furthermore, it is not just the federal exchange that is dealing with immigration related discrepancies, but the state run exchanges as well. For instance, Covered California, the California health care exchange, sent out notices on September 5 to 98,000 families who bought coverage telling them that it could not verify their legal status, and that they had until September 30 to send documents. (Kaiser Health News, Sept. 29, 2014) However, because as of September 29, 50,000 had still not done so, Covered California says it also will accept documents after the deadline. (Id.)
On September 22, true immigration reformer Sen. David Vitter (R-LA) sent a letter to the Administrator of CMS, Marilyn Tavenner, demanding answers. (Sen. Vitter Press Release, Sept. 22, 2014) "The Obama Administration," the Senator explained, "has been granting deadline extensions, making excuses, and turning a blind eye to falsified documents by illegal immigrants. Enough is enough, and they need to provide answers to why they think illegal immigrants should be eligible for Obamacare." (Id.) Senator Vitter then demanded CMS provide information including: how many individuals with immigration related inconsistencies have been found to be illegal aliens, how CMS is verifying the information they receive, and how is the Administration planning to get back funds that the government has already paid out to illegal aliens. (Id.) It is "critical," Vitter concluded, that the Administration "dramatically improves the verification process" before Obamacare's second open enrollment period. (Id.)
When the second open enrollment period begins, which is fast approaching on November 15, Americans will be able to sign up for health insurance on the exchanges for the 2015 year, but there is no sign the Administration has fixed these issues. (See Washington Post, Nov. 22, 2013) It seems possible that some of those who never did resolve their immigration discrepancies can simply sign up for the next plan year in a few weeks.
Republicans Demand White House Stop Hiding Its Amnesty Plans
Last Monday, all 22 GOP members of the House Judiciary Committee, which has jurisdiction over immigration, wrote a letter to President Obama demanding that he immediately publicize the recommendations he has received on how to implement executive amnesty. (Letter, Sept. 22, 2014; Politico, Sept. 22, 2014; Government Executive, Sept. 23, 2014) The Judiciary Committee's letter reproached the President for concealing precisely what he is considering until the elections are over, thereby cutting the public out of "a process that could dramatically affect their lives." (Letter, Sept. 22, 2014) While it is "never acceptable" to unilaterally "give amnesty to unlawful immigrants," the GOP members admonished, "the least the Administration can do is give Americans the opportunity to see the recommendations you are considering before you take any actions" so that they can "exercise their constitutional right to petition the federal government and let you know their opinions." (Id.) It also highlighted that while the Administration denies input to the American public, it has been meeting with its favored interest groups about their amnesty demands. (Id.)
The President did not respond to this call for transparency with any further public information. Asked to comment, a White House spokesman told reporters: "any response from the White House will be provided directly back to [Judiciary Committee Chairman Goodlatte]." (Government Executive, Sept. 23, 2014) Chairman Goodlatte has not yet indicated he has received any such response, and thus most likely none will be forthcoming.
Therefore, the public can only guess at what the Administration is planning. While Secretary Johnson indicated as far back as February that his Department is indeed preparing to implement a mass amnesty program, only leaks and the reports of open-borders allies provide any more information. (FAIR Legislative Update, Feb. 12, 2014) For instance, two Department of Homeland Security memos were leaked in 2010, which outlined various Administration ideas for executive amnesty. (See FAIR Legislative Update, Aug. 2, 2010; FAIR Legislative Update, Sept. 20, 2010) Some ideas in these memos, the Administration has already carried out, such as with Deferred Action for Childhood Arrivals (DACA). (Id.) These memos suggested that the Administration was also contemplating "deferred action" for a much larger population. (Id.) Recently, the Migration Policy Institute published a report estimated that 8.5 million illegal aliens could get amnesty through an expansion of DACA. (FAIR Legislative Update, Sept. 9, 2014) But other than these speculations, as the Judiciary Committee pointed out, the public is in the dark.
Colorado Jails Statewide Succumb to ACLU Threats, Refuse to Honor ICE Detainers
All Colorado county jails have succumbed to threats by the American Civil Liberties Union ("ACLU") and have agreed to ignore detainer requests by the United States Immigration and Customs Enforcement ("ICE") in all circumstances. (Denver Post, Sept. 18, 2014) An ICE detainer is a request from ICE to a state or local law enforcement agency to maintain custody of a particular alien for no more than 48 hours so that federal officials may assume custody for the purpose of removal from the United States. Colorado is the first state in the country to have all of its county jails individually opt to reject compliance with ICE detainers. (Breitbart, Sept. 19, 2014)
Earlier this year, the ACLU sent letters to sheriffs' offices all over the country urging them to stop honoring ICE detainers, arguing that any detention of an alien on the basis of an ICE detainer is a violation of the 4th Amendment. (ACLU letter) The letters go on to conspicuously threaten, in bold letters, that any law enforcement agency that continues to do so "may be held liable for damages" under federal law. (Id.) The ACLU made these claims based on an erroneous reading from a single federal court decision handed down in April: Miranda-Olivares v. Clackamas County (Case No. 3:12-cv-021317-ST). In that case, the court held that an ICE detainer alone did not substantiate "probable cause" to allow a continued detention of the alien after they are eligible for release for the original crime. (Id.)
The ACLU did not mention in its letter that since the ruling on Miranda-Olivares, ICE has changed the detainer form it sends to state and local law enforcement to include language and information providing officers sufficient probable cause to satisfy the 4th amendment. With the new, more detailed ICE detainer form, the Miranda-Olivares case is no longer relevant to a claim of an unlawful detention on the basis of an ICE detainer.
The ACLU went further to misrepresent the holding of Miranda-Olivares in its letter to Colorado sheriffs by stating that state and local law enforcement agencies need a judicial warrant in addition to probable cause to detain an alien. (ACLU letter) That claim was not stated anywhere in the opinion the Miranda-Olivares case and is not supported by 4th Amendment case law.
Mark Silverstein, legal director for the American Civil Liberties Union of Colorado, commented, "All sheriffs have agreed that they don't have the ability to deprive people of liberty, even for a few days, because they are suspected of being here illegally." Under the policies set by the Obama Administration, however, ICE agents are only allowed to issue detainers for criminal aliens that are determined by the federal government to have serious criminal histories or otherwise pose a significant risk to national security, border security or public safety. (Morton Memorandum, Dec. 21, 2012) Thus, merely being "suspected of being here illegally" would not be enough to motivate ICE to even issue a detainer under current policy. Transactional Records Access Clearinghouse, a data collecting organization, reports that ICE issued more than 8,700 detainer requests to Colorado sheriffs between October 2011 and August 2013. (Reuters, Sept. 18, 2014)
Anti-cooperation policies advocated by the ACLU only create safe havens that facilitate criminal activity, especially in regard to drug- and gang- related crimes, human trafficking, and identity theft. 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.