Immigration Reform News and Impact on US Homeland Security May 19, 2015

 This week’s report and immigration news update from the Federation for American Immigration Reform

  • Military Amnesty Stripped From Defense BillAmerica the Free
  • Jeb Bush Reveals He Would Keep Obama’s Executive Amnesty
  • Senate Advances Trade Deal that Could Increase Foreign Workers
  • 113 Republicans Go to Court to Oppose Obama’s Executive Amnesty
  • DHS Not Keeping Data on Prosecutorial Discretion
  • LA County Board of Supervisors Votes to End Cooperation Agreement with ICE

Military Amnesty Stripped From Defense Bill

On Thursday, the House of Representatives voted to remove amnesty language from the National Defense Authorization Act (NDAA). The amnesty provision, which would have instructed the Defense Secretary to consider Deferred Action for Childhood Arrivals (DACA) recipients “vital to the national interest” and thus eligible to enlist in the military, was slipped into the NDAA in the middle of the night during the House Armed Services Committee markup of the bill. (See FAIR Legislative Update, May 12, 2015) In response, Rep. Mo Brooks (R-AL) introduced an amendment for floor consideration that would strip the amnesty provision. The Brooks amendment passed 221-202, with 20 Republicans joining all voting Democrats in opposition. (House Roll Call Vote #229)

Congressman Brooks called the amendment’s passage “a great victory for Americans and lawful immigrants who wish to serve America in our Armed Forces.” (Brooks Press Release, May 14, 2015) He continued, “It makes no sense to me that, at the same time the Army is downsizing and issuing pink slips to American soldiers serving in Afghanistan, there are Congressmen who seek to help illegal aliens deprive American citizens and lawful immigrants of military service opportunities.” (Id.) “I’m pleased the House chose to stand up for American citizens and protect the Constitutional duty of Congress to set immigration law.” (Id.

Jeb Bush Reveals He Would Keep Obama’s Executive Amnesty

On Fox News last Monday, former Governor Jeb Bush said he would, if elected president, maintain President Obama’s executive amnesty until Congress passes new legislation to replace it. (Bloomberg, May 11, 2015; video of Fox News interview) In an interview with Megyn Kelly, Bush called President Obama’s executive amnesties “unconstitutional,” and yet, still maintained he would not revoke them. (Id.) After he called President Obama’s actions unconstitutional, Ms. Kelly asked him how, once illegal aliens were already legalized through executive fiat, he would “undo” those amnesties. (Bgov Transcript, May 12, 2015) He explained that he would undo the executive amnesties by “passing meaningful reform immigration and make [legislative amnesty for illegal aliens] part of it.” (Id.)

Jeb Bush thus struck a similar position to that of President Obama himself, who promised in November that he would revoke his own actions “the day I sign [an amnesty] bill into law.” (White House Press Release, Nov. 20, 2015) Bush did not address the apparent contradiction of promising to let unconstitutional actions stand, except by saying that he expected that the legal challenge would “succeed,” with the implication being that the question of how to undo the amnesties was theoretical. (Id.) This answer glosses over the fact that well over 700,000 illegal aliens had been granted amnesty by DACA before the preliminary injunction stopped DAPA and expanded DACA, and indeed, because the states did not include the original DACA in their lawsuit, that number continues to grow. (See USCIS.gov)

Governor Bush also used the interview to justify his support for amnesty. Bush said that he believes “illegal immigration ought to be punished” by giving illegal aliens legal status with a few conditions attached. (Bgov Transcript, May 12, 2015) He declared that this legalization had to occur because he could see “few other options,” asserting that neither mass deportations nor encouraging illegal aliens to leave on their own by making life as an illegal alien more difficult is “practical.” (Id.) He explained that legal status, not “necessarily” citizenship was what was crucial, but waffled as to what his positon on citizenship was. (Id.) He asserted that he did to see a “distinction” between the two. (Id.) But he also implied there was no substantive difference between support for “a path to legalized status” — the position he took in his book, and takes “almost every day” in speeches now — and support for “a path to citizenship” – the stance he took in 2012 in an interview with Charlie Rose. (Id.)

Moreover, Bush left no doubt he would prioritize granting amnesty and “dramatically” expanding “economic” immigration as president. “There should have been more efforts made to get something like [the Gang of Eight bill] passed,” said Bush. (Id.) He noted his support of driver’s licenses and in-state tuition for illegal aliens as governor of Florida. (Id.) Not supporting in-state tuition for illegal aliens, he said is “a point past which we’re over the line.” (Id.)

Finally, Bush denied that his position on immigration would be a “deal-breaker” with “a core wing” of the GOP. (Id.) He argued that many voters can be persuaded to his position and insisted that voters should respect him for holding onto his own position rather than “mirror[ing] people’s sentiment.” (Id.)

Senate Advances Trade Deal that Could Increase Foreign Workers

Last Thursday, the Senate voted 65 to 33 to begin debate on the fast track trade promotion authority (TPA), which would grant President Obama the authority to implement part of his immigration agenda through trade agreements. (The Hill, May 14, 2015; Senate Roll Vote 180; see FAIR Legislative Update, Apr. 21, 2015) The President has claimed that having this authority is crucial for him to successfully negotiate a large trade deal with 11 Latin American and Asian countries known as the Trans Pacific Partership (TPP). While the details of the deal are not public, the outline of the TPP released by the Office of the U.S. Trade Representative suggests that a key feature of the TPP could be a guest worker program. (Id.; see TPP Outline) Forty-four Democratic Senators successfully filibustered the bill last Tuesday, but on Wednesday, Majority Leader Mitch McConnell (R-KY) agreed to allow stand-alone votes on certain Democratic measures on currency manipulation and trade with Africa in exchange for support on TPA. (Politico, May 13, 2015; Senate Vote 176) After the deal, 13 Democrats joined Republicans to advance President Obama’s trade agenda. (The Hill, May 14, 2015)

While the deal was moving forward last week, Senator Ted Cruz (R-TX), who supports the TPA, filed an amendment which would prevent the President from changing immigration law as part of trade deals. (Sen. Cruz Press Release, May 13, 2015) His amendment says that nothing in the Trade Act of 2015 or in any trade agreement subject to the Act “shall alter or affect any law, regulation, or policy relating to immigration.” (Id.) In a statement accompanying his filing of the amendment, Sen. Cruz explained that the amendment would put the Administration’s repeated assurances that the TPA would not allow the President to unilaterally change immigration law “in writing and make it binding law.” (Id.)

Whether this amendment will be given a vote will depend on Senate Republican leadership. One member of leadership, Sen. John Thune (R-SD), said to reporters last Thursday he now expected the debate to be lengthy and to possibly extend past the Memorial Day recess. (CQ News, May 14, 2015) Originally he thought it would pass quickly, but “now obviously there’s going to be an open amendment process,” he said. (Id.)

Stay tuned to FAIR as further details unfold…

113 Republicans Go to Court to Oppose Obama’s Executive Amnesty

Last Monday, 113 Republican members of Congress filed an amicus brief in the 5th Circuit Court of Appeals in support of Judge Hanen’s preliminary injunction blocking President’ Obama’s DAPA and extended DACA programs. (Goodlatte Press Release, May 11, 2015) The brief was spearheaded by House Judiciary Chairman Bob Goodlatte (R-VA), Rep. Lamar Smith (R-TX), Sen. Ted Cruz (R-TZ), and Sen. John Cornyn (R-TX) and signed by 88 members of the House of Representatives and 25 Senators. (Id.) Though, for his preliminary injunction, Judge Hanen ruled on only the basis that the amnesties violated the Administrative Procedure Act — leaving the constitutional questions yet to be determined — the amicus brief filed by the Congressmen focused on the constitutional issues. (Amicus Brief, May 11, 2015; see IRLI.org, Feb. 20, 2015)

In their brief, the members of Congress argued that the President’s amnesty is unconstitutional based on the text of the Constitution as Supreme Court precedent has interpreted it, because the Constitution grants Congress the authority to set immigration policy. Their brief pointed out that the Supreme Court has said that “‘over no conceivable subject is the legislative power of Congress more complete than it is over’ immigration.” (Amicus Brief, May 11, 2015; see Reno v. Flores, 507 U.S. 292) Congress, they explained, “has created a complex scheme of who has the right to remain lawfully in the United States and has expressly prescribed limited avenues for the extension of immigration relief.” (Amicus Brief, May 11, 2015) The actions by the Department of Homeland Security (DHS), they wrote, which follow “new policy” and “new law” instead of this scheme, thus violate congressional intent and exceed “statutorily delegated authority.” (Id.)

Furthermore, the Members of Congress argue, the President has through his executive amnesties violated his “duty to faithfully execute the law.” (Id.) The President did not set “enforcement priorities” but create “a categorical program with baseline eligibility requirements.” (Id.) By doing so, the members of Congress argued, the President “ignored the limits of prosecutorial discretion.” (Id.) They urged the 5th Circuit to therefore uphold Judge Hanen’s preliminary injunction, warning that if it did not, “such unbound authority ‘could substantially reorder the separation of powers framework.’” (Id.) Allowing the executive branch, they explained, to simply “read laws, both old and new, out of the Code” would give the President a “sort of second veto.” (Id.)

DHS Not Keeping Data on Prosecutorial Discretion

A shocking new Inspector General (IG) report found that the Department of Homeland Security (DHS) is not keeping data on the number of times agents use prosecutorial discretion to release removable illegal aliens. (DHS IG Report, OIG-15-85, May 4, 2015) Prosecutorial discretion, which is supposed to be on a case-by-case basis, is the claimed executive authority President Obama cites to justify shielding illegal aliens from deportation and granting them work permits. Yet, according to the report, “DHS does not collect and analyze data on the use of prosecutorial discretion to fully assess its current immigration enforcement activities and to develop future policy.” (Id. at 3) As a result, the IG charged, DHS “may be missing opportunities to strengthen its ability to remove aliens who pose a threat to national security and public safety.” (Id.)

Although individual agencies collect “some data” on prosecutorial discretion, the IG found that the numbers are likely significantly underreported. In fiscal year 2014, U.S. Citizenship and Immigration Services (USCIS) approved 632,855 Deferred Action for Childhood Arrivals (DACA) request, the Border Patrol released 650 DACA-eligible aliens, and Immigration and Customs Enforcement (ICE) recorded 12,757 instances of agents using prosecutorial discretion. (Id. at 4) However, “ICE officials noted that field office personnel do not always record their use of prosecutorial discretion because they make these decisions daily and it would be too time consuming to record every occurrence.” (Id.)(emphasis added)

The IG also found that agents are not properly vetting detained aliens before rewarding them with prosecutorial discretion. “When applying prosecutorial discretion, ICE field office personnel said they might not always have access to an individual’s criminal history in his or her country of origin,” the report found. (Id. at 6) “As a result, aliens convicted of or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be identified as a DHS enforcement priority.” (Id. at 6-7)

LA County Board of Supervisors Votes to End Cooperation Agreement with ICE

The Los Angeles County Board of Supervisors voted last week to cancel the county’s agreement with Immigration and Customs Enforcement (“ICE”) which allows ICE officials to work inside county jails to determine whether inmates are deportable. (Los Angeles Times, May 12, 2015)

The Board of Supervisors vote cancels the county’s “287(g)” contract, named after the section of law which authorizes the program. The 287(g) program allows ICE to enter into agreements with local law enforcement agencies to “deputize” or cross-designate law enforcement officers to act as immigration agents within their jurisdictions. There are two primary types of 287(g) agreements, task force and jail. The task force model — the type of agreement the Obama Administration now refuses to renew — allows officers participating in criminal task forces (such as drug or gang) to proactively respond to, identify, and remove illegal aliens anywhere within their jurisdiction. The jail portion, which allows ICE agents to work inside state and local jails, is still in effect and has been restricted by the Obama administration to ensure participating law enforcement agencies enforce immigration laws only against “dangerous criminal aliens.” (See DHS Press Release, July 10, 2009)

The Board also passed a separate measure expressing its support for the Obama Administration’s yet to be implemented enforcement program, referred to as the Priority Enforcement Program. (Los Angeles Times, May 12, 2015) While ICE has not yet released detailed information regarding the new Priority Enforcement Program, memoranda issued by Department of Homeland Security (“DHS”) Secretary Jeh Johnson direct the agency to implement the Priority Enforcement Program in place of its effective Secure Communities program and target only aliens already convicted of serious crimes in federal prisons. (FAIR Legislative Update, Nov. 24, 2014) Johnson’s memorandum also directs ICE to stop issuing detainers in almost all instances. (Id.)

Jamiel Shaw, Sr., the father of a teenager who was murdered in 2008 by a criminal alien who had been recently released from jail, testified at the Board of Supervisors’ meeting on Tuesday in opposition to the Board’s plan to cancel the agreement. (NBC Los Angeles, May 12, 2015) “My son would’ve been alive today,” said Shaw. “I wouldn’t be here if 287(g) was enforced. We don’t want to hear about the sob stories of illegal aliens here working and doing the right thing because that’s not true. Ask people like me, whose family members are in the ground while illegal aliens get privilege for the American dream.” (Id.)

Many illegal alien advocates who attended the Board’s meeting countered that the Board did not go far enough to impede the enforcement of immigration law. (Los Angeles Times, May 12, 2015) “[Supporters] presented it as a kinder and gentler way for ICE to collaborate with local police,” stated Los Angeles County Supervisor Sheila Kuehl. (Id.)“I told them it’s not kinder or gentler enough.” (Id.)

According to estimates from the United States Government Accountability Office (GAO), California has the highest criminal alien prison population in the United States. (See GAO-11-187, March 2011) To be successful in deporting criminal aliens, ICE needs the assistance of state and local law enforcement agencies. If the local agency does not hold the alien for ICE, it simply releases the criminal back onto the streets.

The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation’s immigration policies must be reformed to serve the national interest.

FAIR seeks to improve border security, to stop illegal immigration, and to promote immigration levels consistent with the national interest—more traditional rates of about 300,000 a year.