Immigration Reform News and Impact on US Homeland Security December 9, 2014

GOP leaders are now retreating from their election promises to fight executive actions on amnesty.  The Federation for Immigration Reform reports the following:

  • Speaker Boehner Won’t Commit to Defunding Executive Amnesty — EVER
  • Legal Scholars Testify that Obama’s Amnesty is Unconstitutional
  • DHS Already Hiring Employees, Leasing Space to Implement Executive Amnesty
  • House Passes ‘Symbolic’ Bill Disavowing Obama’s Amnesty
  • Homeland Security Secretary Tight-Lipped on Executive Amnesty
  • Defense Authorization Bill Helps Afghanis and Kurds Reach the U.S.
  • 17 States File Suit to Challenge Executive Amnesty

Speaker Boehner Won’t Commit to Defunding Executive Amnesty — EVER

Despite vowing to fight President Obama’s executive amnesty “tooth and nail,” House Speaker John Boehner (R-OH) is now refusing to commit to defunding President Obama’s executive amnesty — now or ever! Boehner made the comments last week during a routine press briefing in the Capitol. When asked repeatedly about how Republicans will actually block the amnesty, the Speaker would say nothing more than he was “not going to get into hypotheticals into what we could or couldn’t do.” (The Weekly Standard, Dec. 4, 2014) He then added, “I do know this: Come January, we’ll have a Republican House and a Republican Senate — and we’ll be in the stronger position to take actions.” (Id.)

Speaker Boehner’s comments came just days after he announced he would not defund the executive amnesty in the appropriations (funding) bill currently being negotiated by Members of Congress. Under the Speaker’s plan, the House will vote on an appropriations bill that funds most of the government through September 2015, but only funds the Department of Homeland Security (DHS) until February or March. (FAIR Legislative Update, Dec. 2, 2014) So, while Congress will be able to once again address the Homeland Security budget in February or March, the bill will not contain a provision that strips funding from the President’s executive amnesty. Thus, under the Speaker’s plan, the government funding will go through, but nothing will be done to stop the President’s executive amnesty.

The Speaker, who many believe supports “comprehensive” immigration reform, is determined to push through his plan this week despite vast opposition from conservative members of his party. Indeed, Boehner is relying on pro-amnesty Democrats to pass the appropriations bill, telling reporters “I expect it will have bipartisan support to pass the omnibus appropriation bill.” (The Hill, Dec. 4, 2014)

Congress is expected to vote on the bill tomorrow. The current government funding bill expires on Thursday, which is also the last scheduled day of the 113th Congress.

Legal Scholars Testify that Obama’s Amnesty is Unconstitutional

Last Tuesday, the House Judiciary Committee held a three-hour hearing on “President Obama’s executive overreach on Immigration.” (See House Judiciary Committee Hearing, Dec. 2, 2014; Bloomberg Government Transcript, Dec. 3, 2014) Four witnesses testified before the Committee: Ronald Rotunda, a law professor who wrote a leading coursebook on Constitutional law; Jay Sekulow, a law professor and Chief Counsel for the American Center for Law and Justice; Thomas Dupree, a constitutional law practitioner at a leading law firm and former deputy assistant attorney general; and Marielena Hincapie, the Executive Director of the National Immigration Law Center and advocate for illegal aliens. (Id.) While all four witnesses stated that they were sympathetic to the President’s immigration policy, all but Ms. Hincapie stated that the Administration’s unilateral actions are clearly unconstitutional. (Id.)

Among the most important points made by the scholars was that President Obama’s executive orders are distinguishable from the actions of past presidents. (Id.) Mr. Dupree pointed out that, particularly in the cases of Presidents Ronald Reagan and George H.W. Bush, past presidents were “faithfully implementing the will of Congress in issuing regulations” pursuant to the Immigration Reform and Control Act of 1986 (IRCA) or acting under their Constitutional authority to “to engage in foreign affairs and oversee the nation’s foreign relations.” (Id.)

Mr. Sekulow, also argued that, leaving aside whether or not those past actions by other Presidents truly provide a precedent for President Obama’s current actions, they cannot constitutionally justify any actions because they themselves were unconstitutional. (Id.) Presidents Bush, Clinton, Bush, and Obama never had the “constitutional authority” to do what they did, Mr. Sekulow stated, because there was “no underlying statutory” basis, so it doesn’t matter what the past four administrations have done. (Id.) “Constitutional violations,” he explained, “don’t get better with time.” (Id.) When Ms. Hincapie claimed the President’s actions did not constitute the creation of “any new laws” because previously existing regulations allow the government to give work authorization to aliens with deferred action, Mr. Sekulow brought up this point again, implying that the mere fact that regulations have been on the books for 30 or 40 years does not establish that those regulations were ever lawful. (Id.)

The panel also addressed whether the President’s actions consist of constitutionally permissible “case by case” exercises of prosecutorial discretion, which merely refrain from deporting particular individuals, or an impermissible blanket suspension of the law for whole categories of persons. (Id.) Ms. Hincapie insisted that the President was carrying out “individual adjudication,” rather than a “mass blanket giving people work authorization,” based on some specified criteria, because “individuals will have to come forward” to show they actually meet the criteria. (Id.)

However, both the witnesses and members of the Judiciary Committee refuted Ms. Hincapie’s argument. Representative Bob Goodlatte (R-VA), the Chairman of the Judiciary Committee and a former immigration attorney, pointed out that in fact, such a policy was not a matter of “case-by-case” determinations at all. (Id.) Under DACA, he explained, immigration officials do not have “discretion to deny applications even if the applicant fulfills all of the program criteria.” (Id.) The “promise of discretion for adjudicators,” he said, “is mere pretense” because if an alien applies and meets the DACA eligibility criteria, that alien automatically receives deferred action. Even “by the Office of Legal Counsel’s own admission,” Goodlatte argued, “the President’s DACA program is “constitutionally suspect.” (Id.) Mr. Dupree agreed with Rep. Goodlatte, saying that the language in the executive actions referring to the “purported case-by-case analysis” is merely “window-dressing” intended to confer constitutional legitimacy on a “plainly unconstitutional” policy.

The federal courts will soon have the opportunity to hear the legal questions raised by the panel. The day after the hearing, Texas Attorney General Greg Abbott filed a lawsuit against the Department of Homeland Security last Wednesday alleging that the Administration’s executive actions are unlawful. (Foxnews.com, Dec. 3, 2014)

DHS Already Hiring Employees, Leasing Space to Implement Executive Amnesty

In an email sent to its employees last week, U.S. Citizenship and Immigration Services (USCIS) revealed that it is already hiring employees and leasing space to carry out the President’s executive amnesty announced November 20th. (Washington Times, Dec. 3, 2014) In that email, USCIS announced that it is “taking steps to open a new operational center in Crystal City, Virginia, to accommodate about 1,000 full-time, permanent federal and contract employees in a variety of positions and grade levels…The initial workload will include cases filed as a result of the executive actions on immigration announced on Nov. 20, 2014.”

The announcement is consistent with USCIS job postings, which numbered 1,000 the day after President Obama announced his executive amnesty. (Id.)

Ken Palinkas, head of the labor union that represents USCIS employees, reacted sharply to USCIS’s announcement. Doubtful that USCIS could legitimately process the millions of applications that are expected, he stated, “I think what they’re leaning towards is just getting the paperwork done regardless of who does it.” He added that the large scale of the hiring and the new office space suggests the Obama Administration had clearly “orchestrated” the policy changes. (Id.) 

Louis Crocetti Jr., director of USCIS’s fraud unit until he retired in 2011, agreed with Palinkas. He told the Washington Times, “I don’t see how they could possibly recruit, hire, screen, go through all the national security background checks and train everyone within six months. That would be a very, very steep challenge, one that could only result in consequences of poorly trained staff.” (Id.)

House Passes ‘Symbolic’ Bill Disavowing Obama’s Amnesty

Last Thursday, the House of Representatives passed a bill, 219-197, to voice their outrage at President Obama’s executive amnesty. (Roll Call Vote #550) Introduced by Rep. Ted Yoho (R-FL), the bill purports to legislatively overturn President Obama’s executive amnesty announced on November 20th. (H.R. 5759)

After its passage, Yoho declared that the bill sends the message that “we’re going to hold the president accountable to the rule of law, to the Constitution.” (Politico, Dec. 4, 2014) However, the bill –filled with vague language and undefined terms – was clearly not intended to become law. For example, the bill prohibits the Executive Branch from exempting classes of “unlawfully present” individuals from deportation or “treating” them as “lawfully present” or with “lawful immigration status.” (H.R. 5759, § 3(a)) However, the bill does not define any of these critical terms. Second, the bill provides that any executive actions taken “with the purpose” of circumventing this section shall be “null and void,” but it would be extremely difficult to prove the intent of officials who issue policy directives on behalf of the president or how such a provision could be enforced. (See H.R. 5759, § 3(a)) Indeed, even before his bill reached the House floor, Rep. Yoho called the vote on it merely “symbolic.”

House Speaker John Boehner (R-OH) defended the strategy of voting on Yoho’s bill despite the fact that the bill is dead on arrival in the Senate. “We think this is the most practical way to fight the president’s action,” Boehner said. (The Hill, Dec. 4, 2014) “And frankly we listened to our members, and we listened to some members who are frankly griping the most,” he added. (Id.) “This [strategy] was their idea of how to proceed,” he insisted. (Id.)

According to sources, Speaker Boehner allowed a separate vote on Yoho’s bill in order to get conservative support for a funding bill this week. (See Politico, Dec. 4, 2014) Despite previously vowing to fight President Obama’s executive amnesty “tooth and nail,” the Speaker is now refusing to include defunding language in the appropriations (funding) bill.

Homeland Security Secretary Tight-Lipped on Executive Amnesty

As the sole witness before of the House Homeland Security Committee last week, Secretary Jeh Johnson offered few answers for Representatives gathered to learn more about President Obama’s executive amnesty. The hearing came just three weeks after the President announced sweeping changes to immigration policy through a series of policy memoranda. These changes include the significant expansion of the Deferred Action for Childhood Arrivals (DACA) program, the creation of a new deferred action program for millions more illegal aliens, a re-writing of the Administration’s enforcement priorities, the termination of Secure Communities, and the abolishment of detainers. (See FAIR Legislative Update, Nov. 24, 2014)

In his initial testimony, Secretary Johnson clearly sought to characterize the mass granting of deferred action as somehow beneficial to our immigration system. “To promote accountability,” Johnson said, “we encourage those undocumented immigrants who have been here for at least five years, have sons or daughters who are citizens or lawful permanent residents and do not fall into one of our enforcement priorities to come out of the shadows…” “To rebuild trust with state and local law enforcement…, we are ending the controversial Secure Communities program…” “To promote border security…, we prioritize the removal of those apprehended at the border and those who came here illegally after Jan. 1, 2014…” (CQ Roll Call Transcript, Dec. 2, 2014, emphasis added)

However, as questioning started, the Secretary refused to provide any specifics about the President’s new programs — despite his claim to have spent “considerable time” developing an implementation plan. For example, several Representatives asked about the potential for fraud in the application process. While the Secretary stated that he too was “concerned about” fraud, he only offered vague assurances that he would fight it. “I want to be sure that we take a hard look at best practices to avoid fraudulent applications, fraudulent misuse of the program,” said Johnson. “I believe that we’ll be vigilant in terms of looking for fraud in the application process.” When asked how illegal aliens will prove residency in the U.S., he simply said, “Take my word for it. There will have to be some sort of documented proof that will be developed in the implementation process.” (Id.)

Rep. Lou Barletta (R-PA) asked Secretary Johnson about the impact of the executive amnesty on the American worker. Johnson dismissed this question altogether, merely stating: “Well, the economy’s getting better, as I’m sure you know, and the question of U.S. jobs, American jobs, is, in my view, a separate issue… The assessment is that that will not impinge on American jobs with American workers.”(Id.) (To see video of this exchange, click here.)

Rep. Lamar Smith (R-TX) asked Secretary Johnson whether the Department of Homeland Security (DHS) had yet established metrics for measuring border security, touching on DHS’s failure to do so despite repeated requests from Congress. In response, Johnson merely said, “So that is a work in progress, sir.” (Id.)

Finally, with regard to circumventing Congress, Secretary Johnson defiantly justified the executive action on Congress’s refusal to adopt the President’s amnesty agenda. “[T]he President decided to wait over the summer to see whether the Congress would act. The Speaker, whose desire for immigration reform I believe is genuine, had hoped that he could get immigration reform through the House of Representatives. That did not happen… And here we are. We’ve done a lot of waiting. We’ve waited for several years.”

Defense Authorization Bill Helps Afghanis and Kurds Reach the U.S.

On December 4, the House passed Fiscal Year 2015 National Defense Authorization Act (NDAA), which contains provisions that help Afghanis and Kurds emigrate to the U.S. (See Rules Committee Print 113-58) One of the provisions expands the Afghan Special Immigrant Visas Program, which was first created in 2009 to give special immigrant visas (SIVs) to Afghan nationals employed by or on behalf of the U.S. government. (Id. at p. 654-658; State.gov) The next provision exempts aliens who belong to the Kurdistan Democratic Party and the Patriotic Union of Kurdistan from the bar on admissibility to the U.S. for belonging to a terrorist group. (113-58 at p. 735-738) Finally, the third provision provides that it is the “Sense of Congress” that the Department of Defense (DOD) should continue to work with governments in Central America to combat violence by international gangs. (Id. at p. 477-479) The following is a summary of these three immigration-related provisions:

A) Changes to the Afghan Special Immigrant Visa Program:

Congress first created the Afghan Special Immigrant Visa Program through Section 602(b) of the Afghan Allies Protection Act of 2009. (P.L. 111-8; 8 U.S.C. 1101 note 26, Afghan Allies Protection) That Act authorized the issuance of SIVs to Afghan employees and contractors who were employed by the U.S. government in Afghanistan any time after October 6, 2001 until 2013, and who experienced an ongoing serious threat as a result of that employment. (See State.gov) Between FY 2009 to 2013, the annual cap on SIVs issued through the program was 1,500. SIVs issued through this program do not count towards other caps on green cards set by the INA, and unused green cards from one fiscal year will “roll over” to the following fiscal year. (See 8 U.S.C. 1101 note 26, Afghan Allies Protection)

This year, Congress significantly increased the number of green cards for the Afghan Special Immigrant Visa Program, authorizing a total 4,000 of green cards for the program for FY 2014. (See State Department Fact Sheet, Oct. 2014; HR 3547; HR 5195) As of October of 2014, more than 13,000 Afghan nationals and their family members have received SIVs since the beginning of the program, and more of them received SIVs in FY 2014 than in all previous years of the program combined. (State Department Fact Sheet)

The FY 2015 NDAA makes two major changes to the Afghan Special Immigrant Program. These changes are:

  1. The NDAA adds another category of aliens who are eligible for SIVs. Originally, Congress restricted eligibility for the program to aliens employed by the U.S. government in Afghanistan for more than a year. The NDAA now provides that eligibility not just to those employed by the U.S. government but also those employed by the International Security Assistance Force, a NATO-led security mission established by the United Nations Security Council, if they: (a) served as an interpreter for US military personnel, or (b) performed sensitive and trusted activities for U.S. military personnel stationed at the International Security Assistance Force. (See ISAF website; 113-58, at p. 654)

  2. The NDAA also authorizes a total of 4,000 SIVs for FY 2015 and 2016, combined. The government may issue these visas in addition any unused visas from FY 2014. The NDAA also provides that this cap only applies to principal applicants, not any family members that may also receive visas. To qualify, the Afghan national’s period of employment must terminate by September 30, 2015, and the Afghan national must apply by December 31, 2015. The authority to issue these visas will end on March 31, 2017. (See Id. at p. 655)

B) Lifting Bars to Admissibility for Members of the Kurdistan Democratic Party and Patriotic Union of Kurdistan

Currently, the INA provides that members of terrorist organizations are inadmissible. (INA § 212(a)(3)(B), 8 U.S.C. § 1182 (a)(3)(B)) The INA defines terrorist organizations in two ways: (1) any organization specifically named by regulation or statute, and (2) any organization that engages in terrorist activities. (INA § 212(a)(3)(B)(vi), 8 U.S.C. § 1182(a)(3)(B)(vi)). The INA defines a terrorist activity as any unlawful activity which involves hijacking or sabotaging a conveyance, kidnapping, violent attacks, assassination, or the use of biological, chemical weapons, or a threat or conspiracy to do any of those activities. (INA § 212(a)(3)(B)(iii), 8 U.S.C. §1182(a)(3)(B)(iii))

While the State Department keeps a list of the specifically named terrorist organizations on its website, neither the Kurdistan Democratic Party nor the Patriotic Union of Kurdistan appear on it. (See State.gov) However, both organizations potentially would meet the second definition if its members engage in terrorist activities, as defined by the INA. Because this definition is statutory, the Department of Homeland Security and the State Department do not have the authority to make exceptions.

The NDAA, however, specifically exempts members of these two groups from the definition (whether specifically designated by name or as engaging in terrorist activities), but authorizes the Department of Homeland Security and the State Department to place them to the list after consultation with each other and the Attorney General. (113-58 at p. 735-738) If the Secretary of State or Homeland Security does so, they must report their reasons for doing so to the House and Senate Judiciary Committees, the Appropriations Committees, the Committee on Foreign Affairs of the House, the Committee on Foreign Relations of the Senate, and the House and Senate Homeland Security Committees.

The NDAA also provides that the bar to inadmissibility for aliens engaging in terrorist activity (INA Section 212(a)(3)(B)) does not apply if those activities were done in association with the Kurdistan Democratic Party or the Patriotic Union of Kurdistan in opposition to the regime of the Arab Socialist Ba’ath Party and/or Saddam Hussein’s dictatorship. The NDAA lifts the bar on admissibility for membership in these two groups for aliens who have served as senior officials in the Kurdistan Regional Government or the federal government of the Republic of Iraq. (Id. at 736-737) However, the Secretary of Homeland Security or the Secretary of State may still determine that such aliens are inadmissible if they pose a security threat to the U.S. (Id. at 737-738)

C) “Sense of Congress” for the DOD to combat transnational gangs in the Western Hemisphere

The NDAA states it is the “sense of Congress” that the Department of Defense should continue its efforts to combat “transnational criminal organizations in the Western Hemisphere.” It also says that it is the “sense of Congress” that the DOD should increase its maritime, aerial, intelligence, surveillance, and reconnaissance capabilities to reduce trafficking into the U.S. Finally it says it is the “sense of Congress” that it should enhance the capacity of partner nations to fight these criminal organizations. (Id. at 477-479) Notably, the NDAA states that as a result of decades of instability and violence in Central America, 66,000 unaccompanied alien children (UACs) crossed illegally in fiscal 2014. (Id. at 478) While this whole provision does not have legal effect, it seems to be endorsing the Obama Administration’s view of the UAC crisis as caused by problems in Central America rather than the Administration’s DACA policy. Such a “sense” glosses over the fact that the minor border crossers only began crossing by the tens of thousands in the years since he announced the policy, even though the violence has been going on decades.

The Senate is expected to pass the NDAA without change this week. (The Hill, Dec. 4, 2014)

17 States File Suit to Challenge Executive Amnesty

Last week, 17 states filed a lawsuit to challenge President Obama’s executive amnesty, claiming the President exceeded his authority by issuing policy memoranda to roll-back enforcement of federal immigration law. (Washington Times, Dec. 3, 2014) The suit is being led by the State of Texas under Attorney General Greg Abbott in anticipation of costs states will endure as a result of the President granting lawful presence to millions of illegal aliens. (Id.)The plaintiff states challenging the President’s actions are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wisconsin. (Plaintiffs’ Complaint) Officials from three additional states, Arizona, Florida, and Ohio, announced late last week that they will also join the lawsuit. (Fox News, Dec. 6, 2014)

The President’s executive amnesty is estimated to shield up to 5 million illegal aliens from deportation and enforcement of immigration law. The policy memoranda, issued by Homeland Security Secretary Jeh Johnson, are sweeping in scope and offer illegal aliens relief spanning from deferral of deportation and work authorization to a pathway to citizenship. (FAIR Legislative Update, Nov. 24, 2014) They also create special exceptions for certain workers seeking to enter the U.S. (Id.)

The states’ lawsuit claims the President’s amnesty is illegal on three grounds. First, the plaintiff states claim the executive amnesty is a violation of the Take Care Clause of the United States Constitution. (Plaintiffs’ Complaint) The Take Care Clause is a limitation of presidential power, requiring the president to “faithfully execute” laws passed by Congress. (US Const. Art. II, § 3)

Second, the plaintiff states claim the President’s executive amnesty is a violation of the procedural requirements of the Administrative Procedures Act (“APA”). (Plaintiffs’ Complaint) The APA mandates all federal agencies undertake specific actions, namely providing public notice and accepting comments, before they can change policy through rulemaking. (5 U.S.C. § 553) The plaintiff states argue the President’s executive actions are “rules” as defined under the APA, and that the Department of Homeland Security avoided notice-and-comment rulemaking by opting instead to change policy through the issuance of memoranda. (See 5 U.S.C. § 551(4))

Third, the plaintiff states claim the President’s executive amnesty violates provisions of the APA that govern the substance of executive actions. (Plaintiffs’ Complaint) The APA prohibits federal agencies from forming policy that contradicts federal law, that is contrary to constitutional authority, or that exceeds statutory authority. (5 U.S.C. § 706(2))

The plaintiff states claim Johnson’s policy memoranda conflict wildly with federal immigration law. Federal law orders the executive branch to put illegal aliens in removal proceedings and subjects aliens who are unlawfully present in the United States to the statutorily mandated three- and ten-year bars for readmission. (8 U.S.C. 1225(B)(2); 8 U.S.C. 1182) The three- and ten-year bars prohibit aliens from being admitted to the United States for three or ten years if they have been unlawfully present in the country for an excess of 180 or 360 days, respectively. (8 U.S.C. 1182) Johnson’s policy memoranda effectively ignore federal law by allowing millions of illegal aliens protection in spite of these laws. In addition, federal law prohibits the employment of illegal aliens in the United States in order to protect American workers. (8 U.S.C. 1324a) The President’s executive amnesty, however, grants work authorization to many of those eligible under his policy. “The president’s unilateral executive action tramples the U.S. Constitution’s Take Care Clause and federal law,” Texas Attorney General Greg Abbott said in a statement. (Wall Street Journal, Dec. 3, 2014 (subscription required))

Often, executive actions related to immigration law are difficult to challenge because plaintiffs rarely have standing to contest benefits granted to third parties (here, aliens). The plaintiff states, however, assert standing in this lawsuit because states will be harmed by the costs necessary to provide public benefits to illegal aliens. (Plaintiffs’ Complaint) Under the President’s executive amnesty, millions of illegal aliens in these states will become eligible for public benefits under various states’ laws after gaining lawful presence. (Id.)Additionally, the plaintiff states presented evidence demonstrating the executive amnesty will increase human trafficking and illegal immigration in their states. As a result, states will be forced to increase law enforcement expenditures, as well as spend substantial resources on education and emergency healthcare, which are required by federal law. (Id.)

The plaintiff states brought their case in the United States District Court for the Southern District of Texas. (Id.) The plaintiff states are seeking a declaration from the court that President Obama’s deferred action program violates the Take Care Clause and APA and an injunction ordering the President take care to enforce federal immigration law. (Id.)