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Immigration Reform News and Impact on US Homeland Security July 29, 2014

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 Right Side News reports from the Federation for American Immigration Reform on:

Speaker's Working Group Recommends Flawed Policies

After missing its original deadline, the working group Speaker John Boehner (R-OH) tasked with solving the surge of illegal alien minors at the Southern border finally released its plan last week. As expected, the group issued 12 policy recommendations rather than legislative text. (See FAIR Legislative Update, July 22, 2014) The group's leader, Rep. Kay Granger (R-TX), praised the recommendations, calling them "common-sense, compassionate, but tough solutions" that "reflect the immediate crisis." (Granger Press Release, July 23, 2014) Granger urged the quick adoption of the recommendations, saying, "It has to get done by the August recess." (National Journal, July 23, 2014)

Unfortunately, the working group's recommendations include flawed policies from several immigration bills already introduced this Congress. First, the group makes several recommendations regarding a plan to achieve operation control of the Southern border that are incorporated from Homeland Security Chairman Michael McCaul's (R-TX) border bill (H.R. 1417), which is co-sponsored by fellow Texan and longtime amnesty advocate Rep. Sheila Jackson Lee (D-TX). (See Border Group Recommendations) Unfortunately, H.R. 1417 shares many of the same problems with the Senate amnesty bill (S. 744) and was even incorporated as the "border security" provision for House Minority Leader Nancy Pelosi's (D-CA) "comprehensive" immigration reform bill (H.R. 15). (See FAIR Summary of H.R. 1417; FAIR Legislative Update, Oct. 9, 2013)

Additionally, the group adopts Sen. John Cornyn (R-TX) and Rep. Henry Cuellar's (D-TX) HUMANE Act. (See Border Group Recommendations) While attempting to make changes to the 2008 anti-trafficking law, the bill needlessly adds new, cumbersome layers to the way the Department of Homeland Security (DHS) processes unaccompanied alien minors. These extra processes benefit illegal aliens and immigration lawyers, but not the American people. (See FAIR's Summary of the HUMANE Act)

Notably, the working group also fails to call to an end of Obama's administrative amnesty program known as Deferred Action for Childhood Arrivals (DACA) or any other measures relating to humanitarian parole, parole-in-place, asylum/refugee law, etc. that would curtail the president's administrative amnesty programs.

However, the group makes several enforcement recommendations to help address the border crisis. First, the group recommends deploying the National Guard to the border to assist the overwhelmed Border Patrol. (Border Group Recommendations, July 23, 2014) Last week, Governor Rick Perry did in fact order the deployment of 1,000 Texas National Guard to the border to address the flood of illegal alien minors. (McAllen Monitor, July 20, 2014) However, Texas taxpayers will be forced to fully fund the operation at $12 million a month unless President Obama uses his authority under Title 32 of the United States Code to use federal funds for the cost. (See Associated Press, July 23, 2014)

Second, the working group incorporates Rep. Rob Bishop's (R-UT) 2011 bill, H.R. 1505, to give U.S. Customs and Border Protection (CBP) access to all federal lands to patrol the border. (See Border Group Recommendations) Next, the group calls for additional immigration judges to help manage the backlog of cases. (Id.) Finally, the group calls for the mandatory detention of apprehended illegal aliens until their removal hearings are adjudicated. This is important because official data show non-detained aliens are highly likely to skip their court dates and remain in the country illegally. Indeed, just last week 18 of 20 Central American minors failed to show up for their court date. (Dallas Morning News, July 22, 2014)

Soon after Rep. Granger released the working group's recommendations, true immigration reformers pointed out their weaknesses. Senator Jeff Sessions (R-AL) said it is "odd" that Boehner's group did not mention President Obama's lax enforcement policies "even once in their released findings." (Sessions Press Release, July 23, 2014) "Any attempt at improving the border situation would be rendered utterly void if the President follows through on his dramatic nullification acts," Sessions charged. (Id.) In a letter to House GOP leadership, Rep. John Fleming (R-LA) said, "I believe that until the President acts to reverse [his unilateral amnesty policies], Congress should not act or pretend that its actions will solve this issue." (Fleming Letter, July 24, 2014)

On the other hand, Democrats oppose the recommendations because they do not believe any policy changes should accompany President Obama's funding request. Longtime amnesty champion Rep. Luis Gutierrez (D-IL) said, "Almost every Democrat I talk to says we should hold the line on the [TVPRA]." (The Hill, July 23, 2014) "Right now I would tell [Boehner] not to expect [Democratic votes]," said House Minority Whip Steny Hoyer (D-MD). (Huffington Post, July 24, 2014) "I don't think the Senate will take the bill," Hoyer added. (Id.)

House Republicans emerged from a closed door meeting on Friday vowing to pass a border funding bill before Congress begins its annual August recess at the end of this week. According to key GOP leaders, the House is poised to advance the flawed Cornyn-Cuellar bill along with approximately $1 billion in emergency funding. (See Politico, July 27, 2014) "We're going to lead and put a plan in place to solve [the border crisis,]" declared Rep. Steve Scalise (R-LA), who will become the Republican Whip on Friday. (Id.) Representative Granger said the House GOP bill is narrowed to the "bare bones suggestions," insisting they "kept the most important parts." (Id.) Lawmakers will depart Washington, D.C. on Friday and not return until after Labor Day.

Stay tuned to FAIR as details emerge...

President Obama Considers Plan to Admit MORE Central American Minors

Just as Congress is debating legislation to address the border crisis, President Obama is already considering how he can circumvent any new law and admit MORE Central American minors to the U.S. The plan, first reported by The New York Times and confirmed by the White House, entails granting refugee status or humanitarian parole to Central American minors in their home countries. (The New York Times, July 24, 2014)

The crux of the plan is to set up screening centers in Central America, starting in Honduras. There, U.S. officials would screen applicants and determine whether to grant minors (under 21) refugee status or humanitarian parole. Although more than 16,000 minors and 30,000 families from Honduras have been caught illegally entering the U.S. this (fiscal) year, the Obama Administration estimates that only 5,000 Hondurans will apply and that 1,750 will receive refugee status. (Associated Press, July 24, 2014; The New York Times, July 24, 2014) If the program in Honduras works smoothly, the Administration plans to expand it to Guatemala and El Salvador.

Federal law does not place many constraints on how the Executive Branch determines the number of refugees the United States may admit in any given fiscal year. In general, the number of refugees allowed each year may not exceed 50,000. (INA Sec. 207(a)) However, before the fiscal year begins, the President has the discretion to designate a higher number if such number "is justified by humanitarian concerns or is otherwise in the national interest." (Id.) In addition, after the fiscal year begins, if the President determines that: (1) "an unforeseen emergency refugee situation exists"; (2) the admission of certain refugees is "justified by grave humanitarian concerns or is otherwise in the national interest"; and (3) the admission of the refugees is not permitted by the original cap set for that fiscal year, the President may fix a number of refugees to be admitted for a period of twelve months. (INA Sec. 207(b))

But despite the law's flexibility on the numbers, granting refugee status to Central American minors would require the Obama Administration to outright ignore the legal definition of a refugee. Section 101 of the Immigration and Nationality Act (INA) defines a refugee as a person "who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (INA Sec. 101(a)(42)) Courts have held that persecution requires government action, meaning action by the government or by actors who the government is unable or unwilling to control. (Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (citing Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir. 2005)) In addition, the persecution must be "on account of" the alien's claimed race, religion, nationality, membership in a particular social group, or political opinion. (Aldana-Ramos v. Holder, 2014 U.S. App. LEXIS 12165, *9-*10 (1st Cir. 2014)) Thus, U.S. courts have repeatedly held that general violence or poverty does not meet the requirements for refugee or asylee status. (See, e.g., Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (citing 8 U.S.C. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004))

The law also places significant restrictions on the granting of humanitarian parole. Under the INA, the government may "parole" an individual into the United States "temporarily" and on a "case-by-case" basis. (INA Sec. 212(d)(5)) When the purpose of parole has been served (as determined by the government), the alien must "return or be returned" to the custody from which he was paroled. (Id.) Thus, humanitarian parole was not intended to be granted to groups of individuals — under the White House plan, minors from Central America — for the purpose of permanent resettlement in the United States.

If the government grants refugee status or humanitarian parole to Central American minors, not only will the Executive Branch be ignoring federal law, the move will likely be stepping stone to legal status for Central American minors who have already come to the U.S. illegally. For example, for an alien to obtain asylum in the U.S., he must meet the definition of a refugee. If the Obama Administration is granting refugee status to Central American minors, it becomes easier for an illegal alien minor from Central America to argue that he qualifies for asylum. In addition, based on its decision to grant Central Americans humanitarian parole, the Obama Administration may also grant "parole-in-place" to Central American minors illegally in the U.S., thereby making them eligible for green cards. (See FAIR Legislative Update, Nov. 20, 2013)

According to The New York Times, the program for Honduras alone would cost at least $47 million, based on the government's estimates of eligible persons. (The New York Times, July 24, 2014) However, one should also note that federal law provides that refugees are eligible for public benefits. (8 U.S.C. 1613)

Obama Administration Warned About Border Crisis

New information indicates that the Obama Administration knew at least two years ago that the numbers of unaccompanied alien minors crossing the Southern border would surge. This information, in the form of interviews with senior officials, e-mails of law enforcement, a posting on a government website, and a University of Texas study all suggest that the Administration knew about the border crisis prior to the last few months.

According to The Washington Post, law enforcement repeatedly warned White House and State Department officials two years ago about surging numbers of unaccompanied minors. (Washington Post, July 19, 2014) One senior federal law enforcement official told the Post that government employees raised "red flags to high levels" and "alarm bells" but were ignored by Administration officials more concerned with the 2012 presidential election and the Senate amnesty bill. (Id.) 

In addition, e-mails from 2011 written by non-profit groups and retired law enforcement agents warned the Department of Homeland Security (DHS) of the influx of Central American unaccompanied minors in 2011. (KVOA Tucson, July 21, 2014) Tony Coulson, a retired Drug Enforcement Administration assistant special-agent-in-charge of the Tucson office, asked to meet with DHS, but received no response. Coulson said that DHS was not prepared for the influx despite "ample warning." (KVOA Tucson, July 21, 2014)

Furthermore, a posting on a government website at the beginning of this year also indicated that the Administration knew about the scale of the surge. On January 29, 2014, Immigration and Customs Enforcement (ICE) posted a request for information (RFI) in anticipation of soliciting a contractor to transport 60,000 unaccompanied alien minors. (Federal Business Opportunities website, Jan. 29, 2014) Senator Jeff Sessions (R-AL) said that the timing of this posting raised serious concerns. Sessions stated, "Why would the administration claim to be surprised by the current influx of unaccompanied minors when they were taking bids in January for a contract to handle the exact situation — almost the exact number — we are seeing?" (Congressional Record, June 24, 2014)

Finally, this year, the University of Texas at El Paso (UTEP) published a study in March solicited by the Department of Homeland Security (DHS). (Washington Post, July 19, 2014) UTEP researchers visited several government facilities on the Rio Grande Valley sector and interviewed DHS and HHS officials. After those site visits, UTEP published a 41-page report finding that increased apprehensions of unaccompanied alien minors made processing these aliens a priority on all agencies involved. (UTEP Report, Mar. 20, 2014, at p. 3) UTEP researcher Kyle Susa said, "From our perspective, it was easy to see how this was going to become a really big issue, and at the time it was being dealt with locally with the foresight that this would become a national issue very quickly." (K Fox 14, July 21, 2014) The former Border Patrol station chief who led the UTEP study, Victor Manjarrez Jr. said, "it was pretty clear this number of kids was going to be the new baseline." (Washington Post, July 19, 2014)

Now, after creating the crisis through his own failed immigration policies and failing to address the warning signs while he pushed the Senate amnesty bill, President Obama is criticizing Congress for not yet acting on his funding request. Just after the President released his request, Obama ironically said, "[A]re folks more interested in politics, or are they more interested in solving the problem?" (The Arizona Republic, July 9, 2014)

Senate Appropriations Proposes $2.7 Billion for Border Crisis with No Policy Changes

Last Wednesday evening, Sen. Barbara Mikulski (D-MD), the Chairwoman of the Senate Appropriations Committee, released a draft of the Committee's proposed $2.7 billion supplemental funding bill to address the border crisis. Mikulski's bill comes in response to President Obama's funding request for $3.7 billion, which he sent to Congress in early July. (Sen. Mikulski Press Release, Jul. 23, 2014; Draft Senate Bill; White House Supplemental Request, Jul. 8, 2014) The bill was placed on the Senate calendar the next day as S. 2648.

At $2.7 billion, Mikulski's bill provides less than President Obama asked, but with no strings attached. The bill does not make changes to current law. (Id.) Of the $2.7 billion, the bill allocates $ 1.2 billion for the Department of Health and Human Services (HHS), $1.1 billion for the Department of Homeland Security (DHS), $300 million for the Department of State, and $124.5 million for the Department of Justice (DOJ). (S. 2648)

HHS is the department that receives the most funding from this bill, as it receives $1.2 billion solely for its unaccompanied alien children (UACs) program. (S. 2648 at p. 6; Sen. Mikulski Press Release, Jul. 23, 2014) This program provides UACs with classroom education, mental and medical health services, case management, socialization and recreation, and family reunification services. (See HHS Fact Sheet) This amount, while smaller than the $1.8 billion requested by the Administration, would nearly double the program's current budget of $1.49 billion. (See White House Supplemental Request, Jul. 8, 2014; Public Law 113-76, at p. 372)

DHS, the second largest beneficiary, receives approximately $1.1 billion, largely to meet the increased costs caused by the surge of minors and families. (S. 2648 at p. 4-5; Sen. Mikulski Press Release, Jul. 23, 2014) Almost all of this total is for two agencies, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). CPB receives $342.7 million, of which $291 million is allocated to operational costs associated with responding to the surge, such as Border Patrol agent overtime and meals, clothing, facilities, and medical supplies for the UACs. (Id.) Another $22.1 million goes to CBP to break up smuggling and trafficking rings. (Id.) Meanwhile, ICE receives $ 762.8 million. (S. 2648 at p.5) Of this amount, $586 million — $300 million less than the Administration requested — will go towards four family detention centers and the "Alternatives to Detention Program." (Sen. Mikulski Press Release, Jul. 23, 2014; White House Supplemental Request, Jul. 8, 2014) Another $116 million, on par with the Administration's request, is allocated to transporting the UACs to HHS. (Id.) The rest of ICE's portion will be allocated to breaking up smuggling and trafficking rings. (Id.) Finally, another $1 million is set aside for DHS's Inspector General Office to provide oversight. (S. 2648 at p. 3)

The Department of State receives $300 million to spend on programs in Central America. (S. 2648 at p. 8-10) Much of this is in the form of economic assistance. (Id.) For an "Economic Support Fund," the bill gives $212.5 million, to address the "root causes" of migration from Central America, including support for the "repatriation and reintegration of migrants." (Id.) The bill gives another $85 million to address "root causes" by strengthening law enforcement and the judicial system in Central America. (Id.) Finally, the bill provides $2 million for diplomatic and consular programs and half a million to public service announcements and other broadcasts. (Id.)

Finally, under the Mikulski bill, the DOJ receives $124.5 million for hiring more immigration judges and obtaining lawyers for the UACs. (S. 2648 at p. 2-3) (See White House Supplemental Request, Jul. 8, 2014) The bill provides $61.2 million, $22.5 million more than the President's request of $38.7 million, for the to hire 40 new immigration judges to reduce backlog in the immigration courts. (Sen. Mikulski Press Release, Jul. 23, 2014) It also provides $50 million, more than three times the President's request of $15 million, for direct legal services to the UACS in deportation hearings to give free legal representation to estimated 20,000 UACS, who would not otherwise receive pro-bono legal support, even though federal law currently provides that aliens may not have counsel at government expense in immigration proceedings. (Id.; see 8 U.S.C. § 1362, INA § 292) The bill also provides $5 million for a legal orientation program which provides referrals and assistance, but not direct legal services, to the UACs' custodians and to families traveling together. (Sen. Mikulski Press Release, Jul. 23, 2014; see also justice.gov)

The bill also attaches emergency funds for two matters unrelated to the border crisis, $615 million for U.S. Forest Service to cover shortfalls in firefighting funds, and $225 million for the Department of Defense for Israel's Iron Dome missile defense system, which many Senate Republicans support. (Politico, Jul. 23, 2014) "The White House asked us to include it," said Majority Whip Dick Durbin (D-Ill), explaining that "[b]ringing Iron Dome funding as well as wildfires" can "broaden" the bill's support. (Id.)

The bill's future is uncertain. No Republican senators have indicated support, and one Democratic Senator, Mary Landrieu (D-LA), has said she would oppose it, while another, Senator Joe Manchin (D-WV), signaled that he had concerns. (Politico, Jul. 28, 2014) Even if it receives enough support to pass the Senate, the House appears to be moving in a different direction. On the same day that the Senate released this draft bill, released principles, to deal with the Administration's border request. (Rep. Granger Press Release, Jul. 23, 2014) Unlike the Senate's version, the House's principles proposed changing the 2008 anti-trafficking law (TVPRA). (Id.) Any policy change at all may meet resistance in the Senate. Chairwoman Mikulski, in speaking about the draft bill, said on the Senate floor that the Senate did not want a "back-door" version of "bad immigration reform." (Boston Globe, Jul. 24, 2014) If a bill does not pass by Friday, it will have to wait until September, when Congress returns from its August recess.

While the Administration has warned of dire consequences of failing to act quickly on the President's request, the Congressional Budget Office's estimate, released last Tuesday, assumes that the supplemental will not be passed until mid to late September. (See FAIR Legislative Update, Jul. 15, 2014; CBO Estimate of President's Supplemental Request, Jul. 22, 2014) Moreover, it only estimates the Administration spending $25 million of its request before the end of the fiscal year (September 30, 2014). (Id.)

Texas Delegation to Obama: Enforce Immigration Laws

Led by true immigration reformer Rep. Lamar Smith (R-TX), all 26 GOP members of the Texas Congressional delegation (24 House members and both Senators) wrote a letter to President Obama demanding that he enforce immigration laws. "Mr. President, you have the authority to stop the surge of illegal entries by immigrant minors today. Enforcing current immigration laws will go a long way to solving the border crisis," the letter reads. (Texas GOP Letter, July 24, 2014) The letter continues, "Your administration has used existing laws as an excuse for your failure to end the national security and humanitarian crisis on our Southern Border," charging that Obama has "permitted almost all to remain in the United States, further encouraging illegal immigration." (Id.)

The Texas delegation calls on Obama to take five steps to address the border crisis:

House Passes Bill to Close Tax Loophole Used by Illegal Aliens

On Friday, the House passed H.R. 4935, the Child Tax Credit Improvement Act, which closes a loophole used by illegal aliens to improperly receive child tax refunds. (The Hill, July 25, 2014; see also H.R. 4935)

Currently federal law does not require individuals who apply for the Additional Child Tax Credit (ACTC) to provide a social security number. Therefore, illegal aliens have been using individual taxpayer identification numbers (ITINs) to receive the ACTC even if they did not pay any taxes themselves. (Treasury Inspector General Report, July 2011). The Department of Treasury Inspector General found that illegal aliens improperly received $4.2 billion in ACTC refunds in 2010. (Id.)

To close this loophole, the House Ways and Means Committee amended a bill it recently debated, the Child Tax Credit Improvement Act (H.R. 4935), to require that applicants for the ACTC supply a social security number. (See H.R. 4935; see also Johnson website, July 25, 2014) Representative Sam Johnson (R-TX), the author of the original measure, said this proposal would save taxpayers $24.5 billion and deter illegal immigration. (Johnson website, July 25, 2014) He said, "The last thing we need is to continue to encourage folks from Central America to make the dangerous and life threatening trek to Texas." (Id.)

The House of Representatives passed H.R. 4935 last Friday by a vote of 237-173. (House Clerk, July 25, 2014) Twenty-five Democrats voted for the measure, while Representatives Jeff Denham (R-CA), Mario Diaz-Balart (R-FL), Walter Jones (R-NC), Ileana Ros-Lehtinen (R-FL), and David Valadao (R-CA) broke ranks from fellow Republicans to vote against the bill. (Id.) Now H.R. 4935 moves to the Senate. The White House has already indicated its intention to veto the bill. (The Hill, July 25, 2014)

Boston City Council Considers Anti-Cooperation Legislation

In June, Boston City Councilor Josh Zikam introduced legislation, so-called "Boston TRUST Act", to the Boston City Council that would prohibit the city's law enforcement officials from complying with detainers requested by the United States Immigration and Customs Enforcement ("ICE"). (Mass Live, Jul. 9, 2014) An ICE detainer is a request addressed to state or local law enforcement agencies from ICE 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.

Specifically, the legislation prohibits law enforcement from complying with a detainer request unless the alien in custody: (1) has already been convicted of a violent crime; (2) has already been convicted of a felony in the past ten years; (3) is listed on the Massachusetts Sex Offender Registry; or (4) is identified on the federal government's Terrorist Watchlist. (Boston TRUST Act) If the Boston TRUST Act is enacted, Boston's law enforcement officers will have no choice but to release criminal aliens — most of whom have no right to be in the United States — back onto the streets in spite of their immigration status and current charges.

Councilor Josh Zakim, who represents Boston's affluent Back Bay and Beacon Hill neighborhoods, said the proposal is necessary to spare Boston taxpayers from the "unnecessary and federally-compelled costs" that come with "overzealous detainer requests" by federal immigration enforcement officers. (Boston Magazine, Jul. 7, 2014) This kind of immigration enforcement, he said is not "something the Boston Police Department should be expending their resources on. That's not something the City of Boston, as a beacon for immigrants, should be participating in." (CBS Boston, Jul. 9, 2014) Councilor Zakim did not comment, however, on the costs taxpayers will incur by requiring the federal government to seek out and arrest deportable criminals who have already been arrested and taken into custody by Boston law enforcement officials for other crimes.

The Boston TRUST Act also circumvents the removal priorities already set by federal immigration officials. Under guidelines set by the Obama Administration, federal immigration officials may only issue detainers for aliens that the federal government has already determined to be a threat to national security, public safety, or border security. (Morton Memo, Mar. 2, 2011; ICE Detainer Form) Councilor Zakim's legislation sets the judgment of federal authorities aside and further narrows these constraints. In an August 23, 2012 letter to FAIR, former ICE Director John Morton stated that jurisdictions that ignore ICE detainers undermine public safety in their communities.

The legislation is currently being considered by the Boston City Council's Government Operations Committee. (CBS Boston, Jul. 9, 2014) The full Council must consider the measure before it can be sent to Mayor Marty Walsh for approval. Mayor Walsh promised to sign the legislation if passed. (My Fox Boston, Jun. 25, 2014)

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