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U. S. Legislative Immigration Update April 2, 2012

April 2, 2012 Right Side News Reports from the·Federation for American Immigration Reform (FAIR) in this legislative weekly including:
Obama Administration Expands Backdoor Amnesty | USCIS Proposes Rule to Circumvent Federal Laws on Admission | Court Will Drop DUI Charges for Obama's Illegal Alien Uncle | California Sides with Illegal Aliens before the Supreme Court | Republicans Draft DREAM Act Alternatives in Advance of Elections

Obama Administration Expands Backdoor Amnesty bald_eagle_head_and_american_flag1

The Obama Administration announced Thursday that it will be expanding its backdoor amnesty program to four major U.S. cities: Detroit, Seattle, New Orleans, and Orlando. (Washington Post, Mar. 29, 2012) The expansion of the program, slated to take place from April 23 to May 4, means that the Department of Justice will entirely suspend the immigration court dockets in these four cities.  (Id.; Huffington Post, Mar. 30, 2012) Then, Immigration and Customs Enforcement (ICE) attorneys will review the deportation cases of aliens not in custody and administratively close the cases they feel are not a priority pursuant to ICE guidelines. (See FAIR's Morton Memos Summary)

The expansion continues the backdoor amnesty program launched by Homeland Security Secretary Janet Napolitano in August 2011. (See Napolitano letter , Aug. 18, 2011) Since that announcement, ICE has issued guidelines to its agents on which cases should be administratively closed and which cases are enforcement priorities. ICE began the deportation review through two pilot programs it launched in Baltimore and Denver last December.  (See FAIR's  Morton Memos Summary)

The announcement of an expansion is at odds with statements by Administration officials earlier this month that it was already half-way complete with its review of pending deportation cases. While testifying before the House Appropriations Homeland Security Subcommittee March 8, ICE Director John Morton claimed the Administration was already half-way through its review of the estimated 300,000 pending cases on immigration court dockets. (See Bloomberg Government Transcript, Mar. 9, 2012; see also FAIR Legislative Update, Mar. 12, 2012) Director Morton claimed as a result of this review his agency had closed merely 1,500 cases, despite DHS claims that it was closing the cases of over 1,600 illegal aliens from the Denver and Baltimore pilots alone. (NY Times, Jan. 19, 2012)  A day later, the ICE emailed Members of Congress a correction (See ICE email, Mar. 9, 2012) stating that as of March 5, ICE administratively closed or dismissed nearly 1,600 cases, but deemed an additional roughly 11,000 eligible for closure. (Id.)

Attorneys across the country are crowing about how their clients are reaping the benefits of the Administration's backdoor amnesty initiatives before the reviews officially reach their cities.  For example, Seattle immigration attorney Sharon Underwood claimed several of her clients have already benefited from the Administration's priorities and signaled the review that is supposed to begin in April was already underway. She told the Seattle Times thatICE's chief counsel Rafael Sánchez told immigration attorneys at a recent regional meeting that ICE attorneys are currently reviewing every case and closing 17 percent of them. (Seattle Times, Mar. 29, 2012)

After ICE administratively closes cases in these four cities, it plans to move to other major U.S. cities. The Administration announced that it would partially suspend the non-detained alien docket in New York City May 7 to May 18, in San Francisco June 4 to June 15, and then in Los Angeles from July 9 to July 20. (Huffington Post, Mar. 30, 2012)

USCIS Proposes Rule to Circumvent Federal Laws on Admission

Nearly three months after making a public announcement, U.S. Citizenship and Immigration Services (USCIS) released its proposed rule to allow illegal aliens to circumvent federal statutes that govern admission. (See Proposed Rule, Mar. 30, 2012; see also USCIS website)  This latest move by the Obama Administration makes it easier for illegal alien family members of U.S. citizens to stay in the U.S. and become citizens themselves. The USCIS proposed rule does this by creating broad exceptions to the 3 and 10-year bar to admission found in Section 212 of the Immigration and Nationality Act (INA).

To help deter illegal immigration and marriage fraud, in 1996 Congress added the 3 and 10 year bars to Section 212 of the INA.  Section 212 provides that an alien who has been in the U.S. unlawfully for 180 days to one year and leaves is inadmissible to the U.S. for three years; aliens unlawfully in the U.S. for a year or more who leave are inadmissible for ten years.  (See INA § 212(a)(9)(B)(i))  USCIS may grant certain illegal alien relatives a waiver to the 3 and 10-year bar, but the illegal alien must apply for the waiver outside of the U.S. at a consular office.  (INA § 212(a)(9)(B)(v))

The Administration's proposed rule, however, would skirt this statute by allowing certain illegal alien relatives of U.S. citizens to stay in the U.S. and apply for a green card.  (See Proposed Rule § III(D))  Specifically, the rule allows these illegal aliens to apply for and receive a "provisional waiver" of the 3 and 10-year bar while in the U.S., so long as they can show that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative "extreme hardship."  Once the illegal alien receives a provisional waiver, the he may stay in the country and apply for a green card.

The core impact of the Administration's proposed rule will be to encourage relatives of U.S. citizens to come the U.S. illegally. All the alien will need to do is apply for a provisional waiver from the 3 and 10-year bar and apply for a green card.  If USCIS grants the illegal alien a provisional waiver under the new rule, the illegal alien gets to stay and the waiver will become final once the State Department determines the illegal alien is eligible for a green card.  (See Proposed Rule at§ IV(A)) If USCIS denies the application for a provisional waiver, ICE will not prosecute the illegal alien for immigration violations.  ICE announced in August 2011 that it would seek to dismiss the prosecution of cases of illegal alien relatives who have applied for a green card, so long as the illegal alien is otherwise eligible. (Morton Memo, Aug. 20, 2011) Finally, illegal alien family members who leave the U.S. are still eligible to apply for a waiver using the current statutory process.  (Id.)

House Judiciary Chairman Lamar Smith (R-TX) scolded the Administration for circumventing Congressional intent that immigration laws be enforced. "President Obama is bending long established immigration laws…Congress instituted the three and 10 year bars in 1996 to provide a penalty for immigrants who had been illegally present in the U.S. for long periods of time.  While the waiver of these bars is legal under current law, it is not intended to be applied to millions of illegal immigrants." (See House Judiciary Press Release, Mar. 30, 2012)

Court Will Drop DUI Charges for Obama's Illegal Alien Uncle

On Tuesday, President Obama's uncle, Onyango "Omar" Obama, surrendered his driver's license to the State of Massachusetts for a 45-day suspension. The suspension was agreed to in a plea bargain that could ultimately allow Mr. Obama to remain in the country illegally. (Boston Herald, March 27, 2012)

The surrender his driver's license is the latest development in a case that began last August when Mr. Obama was arrested for driving erratically and operating a vehicle while under the influence of alcohol (DUI) at nearly twice the legal limit. (Id.) Upon arrest, Mr. Obama was briefly detained by ICE officials when they discovered that Obama had ignored a 20-year-old deportation order. Mr. Obama's immigration case is currently pending. (Boston Herald, March 28, 2012; see also FAIR Legislative Update, Sept. 6, 2011)

After Obama ‘s apprehension, Massachusetts Judge Douglas Stoddard put the case on hold for one year and effectively dismissed Obama's DUI charges under the terms of the plea arrangement. (Chicago Tribune, March 27, 2012) The plea deal also provides that so long as Mr. Obama is not arrested again this year, the Court will erase the drunk-driving charges from his record. (The Hill, March 27, 2012)

Alarmingly, erasing Mr. Obama's charges will improve his chances of being permitted to remain in the country illegally. According to the Obama Administration's backdoor amnesty initiative, immigration officers are ordered to ignore illegal aliens who have no criminal record. (See FAIR Morton Memos Summary, Jan. 2012)

Scott Bratton, Mr. Obama's attorney, claimed the plea bargain will have "little if any impact upon his immigration case" and argued that Mr. Obama should be granted amnesty simply because "he's been here since 1963." (Chicago Tribune, March 27, 2012; see also Boston Herald, March 28, 2012)

The plea bargain won't keep Mr. Obama from driving, either. Despite surrendering his license, Mr. Obama has the ability to apply for a hardship license as a first-time DUI offender, and he expressed that he plans to do just that. Mr. Obama returned to his job as manager at Conti's Liquors last week, even though federal law expressly prohibits illegal aliens from working in the United States. (See INA § 274A(h)(3); Washington Post, March 28, 2012)

Mr. Onyango Obama is not the first illegal alien in President Obama's family. His Aunt, Zeituni Onyango, who is Onyango's sister, openly defied immigration laws by staying in the country illegally despite twice being ordered deported by an immigration judge. After years of living in taxpayer-subsidized housing and collecting government disability checks, she told an interviewer from CBS News that the U.S. government was obligated to take care of her and to make her a U.S. citizen. (See FAIR Website, 2009; see also FAIR Legislative Update, Sept. 27, 2010)

California Sides with Illegal Aliens before the Supreme Court

Last week, the State of California and several other states, filed a brief with the United States Supreme Court urging the Court to strike down Arizona's immigration enforcement law, SB 1070.  (California Amicus Brief)   The Supreme Court is scheduled to hear oral arguments on the Obama Administration's challenge to SB 1070 April 25th and in anticipation, dozens of interested parties, organizations, and even foreign governments have filed briefs both in support and opposition to the law. The other states joining California in the amicus brief are New York, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Oregon, Rhode Island, and Vermont.

The core of California's objection to SB 1070 rests on the notion that through SB 1070, Arizona has impermissibly adopted its own removal policy — a power CA argues is "exclusively [a] federal function." (CA Brief at 3)  While states have no authority to remove (deport) illegal aliens (nor is the state of Arizona claiming such authority), California argues that the enforcement activities Arizona is encouraging through SB 1070 – the identification, apprehension, and detention of illegal aliens – are by definition part of the removal process.  Thus, Arizona has adopted its own "removal policy."

California then argues that Arizona's removal policy, as embodied by SB 1070, is impermissible because it conflicts with the federal removal "scheme." (Id.)  Federal law, California asserts, has long recognized that immigration enforcement has "uniquely devastating effects" on "people who are otherwise law abiding and productive members of society."  (Id.)  Describing SB 1070 an "overzealous and indiscriminate attempt" to enforce the law, California argues that Arizona's law conflicts with "federal removal policy" in two ways.  (CA Brief at 3, 9).  First, California claims that SB 1070 requires state and local officers to engage in the arrest and detention of illegal aliens without any federal oversight.  Second, California argues that SB 1070 supplants the Executive Branch's discretion over the administration of the removal process and thus "interferes with the achievement of the federal priorities Congress has set." (CA Brief at 3-4)  California then concludes that because SB 1070 conflicts with this federal removal scheme, it is preempted by federal law.

Through this argument, however, California ignores the simple fact that nothing in SB 1070 supplants the authority of the federal government to decide whether to remove an illegal alien.  To the contrary, SB 1070 merely requires Arizona officers to verify immigration status in certain circumstances and report it to the federal government.  The law also creates state offenses that mirror already existing federal laws.

California's argument also ignores that numerous federal statutes actually authorize and encourage local officers to identify, apprehend, and detain illegal aliens.  For example, Section 1373(c) of the United States Code requires that the federal government respond to all local inquiries about immigration status.  Section 1373(a)-(b) prohibits laws that interfere with the sharing of immigration data between local governments and the federal government.  And, Section 1357(g)(10) provides that local law enforcement does not need to enter into an agreement with the federal government to cooperate in the enforcement of immigration laws.  (See also INA § 287(g)(10))

In addition, California ignores that the Administration itself will soon require all jurisdictions – through the implementation of Secure Communities – to identify illegal aliens booked at jails (before conviction).  And, through regulations, the Administration also requires that local jurisdictions detain illegal aliens if federal immigration officers place a hold on them (called a detainer).  (See 8 C.F.R. 287.7(d))

Finally, California's argument ignores a plethora of case law that confirms that state and local authorities have the inherent or general enforcement authority to assist in the enforcement of immigration laws.  See e.g. United States v. Salinas-Calderon (10th Cir. 1982); United States v. Vasquez-Alvarez (10th Cir. 1999).

SB 1070 therefore does nothing more than further Congressional intent that local jurisdictions participate in the identification, apprehension, and detention of illegal aliens. Moreover, because Congress has encouraged, and in some cases required, local jurisdictions to engage in these activities, California cannot reasonably argue that they are equal to the removal of illegal aliens — a power Congress has reserved for the federal government.

Republicans Draft DREAM Act Alternatives in Advance of Elections

Reacting to concerns that Republican candidates are in danger of losing the Hispanic vote in November, several GOP lawmakers have declared their plans to introduce modified versions of the failed DREAM Act, hoping to win votes.

The most recent lawmaker to announce a new proposal is Sen. Marco Rubio (R-FL). While the Senator has not yet filed official language, he expressed that his focus will be on helping young illegal aliens. One suggestion Rubio proffered involves creating a new student visa to allow illegal alien students "to finish their studies until they can apply legally." (FOX News Latino, March 27, 2012; see also The Hill, March 27, 2012) Sen. Rubio has opposed previous versions of the DREAM Act, including the bill most recently rejected by the Senate in 2010. (Tampa Bay Times, Nov. 19, 2010)

The Hillreports that Sens. Jon Kyl (R-AZ) and Kay Bailey Hutchison (R-TX) are also working on a separate DREAM Act alternative, but have refused to release any details about their plan until after the Republican nomination is finalized. (The Hill, March 27, 2012)

In the House, Rep. David Rivera (R-FL) has announced plans to introduce the Studying Towards Adjusted Residency Status (STARS) Act, which he intends to file soon. The bill will allow illegal aliens 18 and-a-half or younger, who arrived in the U.S. before the age of 16, and who have lived in the country for the five previous years, to be granted amnesty if they graduate from a four-year institution. (Rep. Rivera Press Release, March 9, 2012)

If passed, the DREAM Act would grant amnesty to illegal aliens who entered the country as children and have met minimal educational requirements. Some versions of the Act would also amend current law to allow states to provide subsidized in-state tuition to illegal aliens, shifting the cost burden to American taxpayers. (See FAIR DREAM Act Summary, 2009)

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