Immigration Reform News and Impact on US Homeland Security June 9, 2015

Weekly Report from Federation for American Immigration Reform (FAIR)

  • DHS Releases Thousands of “Threat Level 1” Criminals
  • House Funding Bill Increases Funds for Two Important Enforcement Programs
  • California Senate Passes Bill to Provide Health Care Coverage to Illegal Aliens

DHS Releases Thousands of “Threat Level 1” Criminals

America the FreeLast Wednesday, House Judiciary Chairman Bob Goodlatte (R-VA) revealed to the Washington Times that, of the over 30,000 criminal illegal aliens released onto the streets by the Department of Homeland Security (DHS) while waiting for their cases to be heard, 3,700 were deemed “Threat level 1″criminals. (Washington Times, Jun. 3, 2015; see FAIR Legislative Update, Apr. 21, 2015; House Judiciary Committee Press Release, Apr. 14, 2015) The convictions of the entire population of released criminal aliens include 86 homicide convictions, 186 kidnapping convictions, 373 sexual assault convictions, 449 commercialized sexual offenses, 1,194 battery convictions, 1,346 domestic violence convictions, and 13,636 driving under the influence of alcohol convictions. (Id.)

And, contrary to claims by the Administration that the release of criminal aliens is required by court rulings, most of DHS’ releases of criminal aliens from custody are by its own choice. (Washington Times, June 3, 2015) As Chairman Goodlatte explained in April, only 2,457 were released as a result of Zadvydas v. Davis, the Supreme Court case that limits the amount of time an illegal alien who cannot be repatriated can remain in detention. (House Judiciary Committee Press Release, Apr. 14, 2015) Last week, Chairman Goodlatte revealed that 17,000 criminal aliens, representing 57% of those released last year, were released purely as a result of discretion by U.S. Immigration and Customs Enforcement (ICE). (Washington Times, June 3, 2015) The remaining approximately 11,000 releases were thus largely a result of orders from immigration judges. Yet, while ICE Director Sarah Saldana in April tried to imply that an initial order from an immigration judge entirely ties ICE’s hands, in fact, the Administration has the option to appeal such orders. (See Justice.gov) “Put aside the spin,” Chairman Goodlatte said to the Washington Times last week, “the Obama administration’s lax enforcement policies are reckless and needlessly endanger our communities.” (Washington Times, June 3, 2015)

ICE justified the release of criminal aliens by stating it takes into account “humanitarian factors” such as health, advanced age, and care-taking responsibilities into account when deciding to release serious criminals. (Id.) ICE also insists that it still monitors those who are released, by various means, including ankle bracelets, a system of phone checks, and paying a bond. (Id.)

However, the Office of the Inspector General (IG) recently issued a report disputing the effectiveness of ICE’s tracking programs. (Report of the DHS IG, Oct. 2014-Mar. 2015) According to the IG, Homeland Security’s alternatives to detention program, called the “Intensive Supervision Appearance Program,” does not effectively track aliens released by ICE. (Id.; Report of the DHS IG, Oct. 2014-Mar. 2015 at p. 12) Indeed, in fiscal year 2014, approximately 30,000 aliens out of 41,000 placed on electronic monitoring violated their terms of their release, with many committing multiple violations. (Washington Times, June 3, 2015) In fact, these 30,000 aliens committed about 300,000 violations, an average of 10 per violator. (Id.)

Indeed, according to the Inspector General, ICE cannot even determine if its intensive supervision program is even remotely effective in reducing the rate aliens abscond or get arrested for crimes. (Report of the DHS IG, Oct. 2014-Mar. 2015) This, the IG explains, is due to changes ICE made to the Intensive Supervision Appearance Program, which include no longer monitoring all aliens throughout the entire removal process. ICE has instructed its field offices to consider re-detaining aliens who were non-compliant while participating in the program, but most field offices are not able to do so because they have insufficient detention space. (Id.)

Notably, the Obama Administration and certain pro-amnesty members of Congress have consistently sought to reduce the number of detention beds available. (Id.; see FAIR Legislative Update, July 1, 2014; Bloomberg.com, Sept. 24, 2013) This push has intensified lately, when over 130 House Democrats signed a letter to Homeland Security Secretary Jeh Johnson two weeks ago calling upon him to end family detention altogether. (Politico, May 27, 2015) In addition, 33 Democratic Senators sent a similar letter to Secretary Johnson last week. (Senate Letter, June 1, 2015) These pleas to end detention were echoed by the editorial board of the New York Times, which called for the end of “mass detention” altogether, claiming supervised release alone works well enough. (New York Times, May 15, 2015) Furthermore, a federal district judge has indicated that she may order ICE to shut down its family detention centers later this summer. (Associated Press, June 7, 2015)

House Funding Bill Increases Funds for Two Important Enforcement Programs

Last week, the House of Representatives passed the fiscal year 2016 Commerce-Justice-Science (CJS) appropriations (funding) bill that boosts funding for two important immigration enforcement programs. (See H.R. 2578) First, the House allocated $422 million to the Justice Department’s (DOJ) Executive Office of Immigration Review, a $75 million increase in order to fund 55 additional immigration judges. (CQ Today, May 15, 2015) The House CJS bill also increases funding for the State Criminal Alien Assistance Program (SCAAP) by $10 million compared to last year’s $210 million level. (Id.; see FAIR Legislative Update, June 4, 2014) SCAAP funding reimburses states and municipalities for costs incurred from the incarceration of criminal aliens. (See Bureau of Justice Assistance SCAAP Guidelines; INA § 241(i)) Moreover, the House’s allocation of $220 million for SCAAP funding was a wholesale rejection of President Obama’s proposal to eliminate SCAAP funding altogether.

During floor debate, the House further improved the immigration enforcement provisions in the CJS bill through amendments. First, the House adopted by voice vote Rep. Steve King’s amendment that prohibits CJS funds from being used to implement trade agreements that include provisions issuing visas. Then, in a 222-204 vote, the House approved another King amendment that blocks the Obama administration from using CJS funds to defend the 26 state lawsuit challenging the executive amnesty. (House Roll Call Vote #293; Fox News Latino, June 4, 2015) Finally, the House passed a third King amendment by a vote of 227-198 that prohibits the DOJ’s State and Local Grant funding from being used in contravention of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). (House Roll Call Vote #294)

Disappointingly, the CJS bill could have contained additional immigration enforcement terms if the House had adopted Rep. Doug Collins’s (R-GA) amendment, which would have denied SCAAP funds to sanctuary cities. However, the amendment was ruled out of order for impermissibly legislating on appropriations after pro-amnesty Democrats objected. The ruling was unexpected because Rep. Collins introduced the identical language last year and it was adopted by voice vote. (See immigrationreform.com; June 3, 2015)

California Senate Passes Bill to Provide Health Care Coverage to Illegal Aliens

On Tuesday, June 2, the California Senate passed Senate Bill (“S.B.”) 4 to expand health care coverage to illegal aliens living in the state. (LA Times, Jun. 2, 2015) The Senate passed S.B. 4 by a 28-11 vote after legislators considerably scaled back benefits offered by the bill. (Id.)

Originally, the authors of S.B. 4 crafted the bill to grant all low-income illegal aliens living in the state eligibility to receive full-scope Medi-Cal coverage. (S.B. 4) Legislators, however, amended S.B. 4 last week to limit eligibility for full-scope Medi-Cal to illegal aliens under the age of 19 out of concern for the massive costs associated with the benefits. (Id.; LA Times, Jun. 2, 2015)Illegal aliens over the age of 19 will still be able to receive limited-scope Medi-Cal benefits and could receive full-scope benefits if the California Department of Health Care Services determines that sufficient funding is available.

S.B. 4 also allows the State of California to circumvent the provisions in the Patient Protection and Affordable Care Act (known as Obamacare) barring illegal aliens from enrolling in the state health care exchange. The bill requires the state to apply for a waiver from the federal government in order to allow the state to enroll illegal aliens in the California Health Benefit Exchange. (S.B. 4; PPACA § 1332) If the federal government grants such a waiver, S.B. 4 would allow illegal aliens to enroll in the state Obamacare exchange. And, as originally drafted, if the federal government did not grant a waiver, S.B. 4 would have required California to create its own state-based exchange solely for illegal aliens. Notably, however, the Senate amended the bill to eliminate the requirement for the creation of a separate exchange in the event California did not receive a waiver. (S.B. 4)

The California Senate Committee on Appropriations estimates S.B. 4 will cost California taxpayers up to $740 million annually, assuming only 60% of California’s eligible illegal alien population enrolls in Medi-Cal and only 20% of the population participates in the health care exchange. (S.B. 4 Cost Study) However, the Committee projects costs will likely increase annually as the population of illegal aliens in the state increase. Currently, California has the highest population of illegal aliens in the United States, estimated in 2014 to be almost 3 million. (FAIR Report) Illegal immigration to the state was also estimated in 2014 to cost California taxpayers over $25.3 billion annually. (Id.)

Legislators who oppose S.B. 4 pointed out that the bill will likely exacerbate the state’s current Medi-Cal crisis, with many doctors already unable to accept new Medi-Cal patients. (Sacramento Bee, Jun. 2, 2015) “If this bill were to be signed into law, it would only serve to exacerbate the problem and not fix it,” said Senator Jeff Stone. (Id.) “This bill would only add hundreds of thousands of more patients to the roll with no one to care for them.” (Id.) In 2011, the Legislature was forced to slash Medi-Cal funding by 10 percent. (Los Angeles Times, June 10, 2013) Reportedly, the cuts have already reduced provider accessibility and services and the overall quality of healthcare for the millions of California residents already dependent on Medi-Cal. (Id.) S.B. 4 will further strain Medi-Cal by depleting the resources keeping it afloat and further reduce access to quality medical services for all Californians enrolled in Medi-Cal.

The State Assembly must approve S.B. 4 before it can be sent to Governor Jerry Brown for his signature. Governor Brown has not indicated whether he supports the bill, but rather has expressed skepticism at the likelihood of the state being able to afford it. (Id.; Sacramento Bee, April 16, 2015) “I will just say generally that there are a lot of ideas that often are memorialized into bills that, when you price them out, they exceed the available money,” cautioned Governor Brown. (Id.) If S.B. 4 is enacted, California will become the first state to allow illegal aliens access to its health insurance exchange.