Immigration Reform News and Impact on US Homeland Security October 14, 2014

The the Federation for American Immigration Reform reports the Department of Health and Human Services 9 million dollars of taxpayer monies will go to lawyers representation of approximately 2,600 unaccompanied illegal alien minors facing deportation

  • HHS Grants $9 Million to Lawyers Representing Illegal Aliens
  • House Homeland Security Chairman Unveils Border Blueprint
  • myE-Verify Launches Social Security Number Locking Tool
  • TSA Will Accept Illegal Aliens Driver’s Privilege Card as ID to Board Aircrafts

HHS Grants $9 Million to Lawyers Representing Illegal Aliens

On September 30, the Department of Health and Human Services (HHS) announced it will award $9 million in taxpayer-funded grants for direct legal representation of approximately 2,600 unaccompanied illegal alien minors facing deportation. (Politico, Sept. 30, 2014; Dallas News, Sept. 30, 2014) According to Spokesman Kenneth Wolfe, HHS has previously funded legal access programs that include providing information, legal screenings, and recruitment and training of pro bono lawyers, but this will be the first time it has awarded grants for direct legal representation. (Associated Press, Sept. 30, 2014)

HHS will award the grant to two organizations in FY 2014: the U.S. Conference of Catholic Bishops (USCCB) ($2,226,513) and the U.S. Committee for Refugees and Immigrants (USCRI) ($2,034,755). (Grant announcement, Oct. 1, 2014) The Conference of Catholic Bishops will partner with Catholic Legal Immigration Network, Inc. to use the grant through affiliates in Los Angeles, California; Houston, Texas; Miami, Florida; Baltimore, Maryland; Washington, D.C., Arlington, Virginia; and New Orleans, Louisiana. (CLINIC press release, Oct. 2, 2014) HHS plans to award the remaining $4.7 million in fiscal year 2015. (Grant announcement, Oct. 1, 2014)

The Obama Administration claims HHS has authority to award these grants on the basis of the 2008 trafficking law. In a provision entitled “Access to Counsel,” the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 requires that the HHS Secretary ensure “to the greatest extent practicable” that unaccompanied alien minors have counsel to represent them in legal proceedings. (See 8 U.S.C. § 1232(c)(5)) However, Congress specified that this provision “be consistent” with the Immigration & Nationality Act’s requirement that illegal aliens’ right to counsel be “at no expense to the Government.” (Id.) Every published court case to date has rejected the view that the government must appoint counsel at government’s expense for immigration proceedings. (See CRS Report at p. 9) Furthermore, the TVPRA requires that HHS Secretary “make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.” (Id.)

These HHS grants are in addition to the $1.8 million that the Department of Justice (DOJ) awarded to 100 lawyers and paralegals representing illegal aliens under age 16 in removal proceedings through the justice AmeriCorps program. (DOJ press release, Sept. 12, 2014) In June, DOJ partnered with the Corporation for National and Community Service (CNCS) to announce the creation of “justice AmeriCorps.” (DOJ press release, June 6, 2014) Then, three months later, justice AmeriCorps awarded its first grants to provide lawyers to illegal alien minors to Equal Justice Works, Casa Cornelia Law Center, Catholic Legal Services of Miami, Legal Services of South Central Michigan, the Massachusetts Immigrant and Refugee Advocacy Coalition, the New York Immigration Coalition, and the University of Nevada Las Vegas. (DOJ press release, Sept. 12, 2014)

Stunningly, the ACLU and other legal groups are seeking even more government funding for lawyers. In early July, the ACLU, the Northwest Immigrant Rights Project, Public Counsel, American Immigration Counsel and K&L Gates asked a judge to order taxpayer-funded counsel for all illegal alien minors in removal proceedings. (See ACLU Complaint, July 9, 2014; see also FAIR Legislative Update, July 22, 2014) A few weeks after filing their complaint, the ACLU filed an urgent motion asking the judge to order the Executive Office of Immigration Review (EOIR) to delay the illegal aliens’ deportation proceedings. (ACLU Motion, July 31, 2014) However, last Monday, U.S. District Court Judge Thomas Zilly denied that request on ripeness grounds, arguing the illegal aliens had not yet requested delays from EOIR and there was no indication that EOIR would not fairly accommodate requests for continuances. (Court Order, Sept. 29, 2014) Judge Zilly deferred ruling on the request for the U.S. to provide counsel at government expense.

The Obama Administration will award $9 million for direct legal representation, despite the fact that the neither chamber in Congress passed any of the President’s requested funding for legal counsel. The House passed a supplemental funding bill without any funding for lawyers, (See FAIR Legislative Update, Aug. 5, 2014). Although the Senate considered a bill incorporating the President’s request for funding (See FAIR Legislative Update, July 15, 2014), the Senate failed to pass such legislation. (See FAIR Legislative Update, Aug. 5, 2014)

House Homeland Security Chairman Unveils Border Blueprint

Last week, House Homeland Security Chairman Michael McCaul (R-TX) released his “Blueprint for Southern Border Security” (Blueprint), calling it “the first step to providing Americans the secure border they demand and deserve.” (McCaul Press Release, Oct. 6, 2014) In the lengthy, 42-page report, McCaul identifies six goals for securing the border as well as recommendations for action in each sector of the Border Patrol. (See Blueprint at 10) Still, a closer inspection of the blueprint reveals that it is more a criticism of the Obama Administration’s failure to secure the border rather than a concrete solution to the problem.

First, the blueprint focuses on how to achieve operational control and situational awareness of the Southern border. The blueprint calls operational control “the desired end state of national border security” which requires full situational awareness — defined by McCaul as “a complete picture as to whom and what are crossing the border.” (Id. at 3) Noting that earlier this year radar revealed that Border Patrol agents apprehend less than half of illegal border crossers, the report calls for a combined approach using agents on the ground and technology to achieve situational awareness. (Id.see FAIR Legislative Update, Apr. 8, 2013) “The record number of Border Patrol agents alone will never be able to bring about complete situational awareness. However, technology can fill this void,” McCaul argues. (Blueprint at 3) Interestingly, the report appears to discount completing the border fence — which is required by law — saying “fixed towers and fencing… is not however, a panacea that will work across the entire border.” (Id. at 4)

Next, the blueprint focuses on developing proper metrics to measure border security since the Obama Administration abandoned the metric of “operational control” in 2010 and has failed to produce a new metric. (Id. at 5; see FAIR Legislative Update, Mar. 25, 2013) “Assuming the border is secure because billions of dollars have been spent on additional resources and Border Patrol agents is a bad assessment,” McCaul charged, calling such input based metric “flawed.” (Blueprint at 5) Instead, McCaul recommends outcome-based metrics that “measure data such as illegal border crossing effectiveness rate, illicit drug seizure and removal rate, and cocaine seizure and removal rate.” (Id. at 6)

Additionally, McCaul creates a threat level scale that identifies, in his opinion, how secure each of the nine sectors along the Southern border are in combating illegal immigration and drug cartel activity. Along with the scale, which ranges from low to high, McCaul provides a list of “recommended additional resources” to obtain operational control. The blueprint identifies more than half of the border sectors as “low threat”: San Diego, El Centro, Yuma, El Paso, and Big Bend. (Id. at 10, 13, 16, 22, 25) McCaul assesses Tucson, Del Rio, and Laredo sectors as “medium-risk” and suggests increasing unmanned aerial surveillance but no additional border fence in these sectors. (Id. at 16, 28, 31) Finally, the blueprint labels Rio Grande Valley as the only “high-threat” sector and suggests a manpower “surge” plus increased unmanned aerial surveillance but not additional border fence. (Id. at 34)

Yet, while McCaul accurately criticizes the Obama Administration’s refusal to secure the border, the blueprint lacks teeth to produce a better outcome. First, the blueprint’s definition of “operational control” is nearly identical to language in McCaul’s Border Security Results Act (H.R. 1417), a limited border bill that shares many of the flaws of the Senate mass guest worker amnesty bill (S. 744) and is co-sponsored by pro-amnesty Rep. Sheila Jackson Lee (D-TX). (See FAIR’s H.R. 1417 Resources) More importantly, the blueprint provides no mechanism to require the Homeland Security (DHS) Secretary to actually obtain operational control and situational awareness of the Southern border. Additionally, the blueprint fails to provide for a funding mechanism for the recommended resources and the lists offer little explanation how he reached those numbers.

Curiously, McCaul’s plan also addresses interior enforcement which, legislatively, is the jurisdiction of the Judiciary Committee. Calling for a “layered approach” to enforcement, the blueprint recommends enhanced penalties for illegal aliens captured by Border Patrol agents and Immigration and Customs Enforcement (ICE) officers that will “significantly reduce the likelihood of recidivism.” (Id. at 6) McCaul also advocates for increasing Operation Streamline, a program run by Customs and Border Protection (CBP), the Department of Justice (DOJ), and U.S. District Judges that seeks to encourage and expedite the prosecution of aliens for illegally crossing the border, that the Obama Administration is reportedly dismantling despite the program’s success. (Id.; see FAIR Legislative Update, Sept. 16, 2014) Noting that local law enforcement “play a vital role” in interior enforcement, McCaul also recommends providing “[p]roper funding” for the 287(g) program – a congressionally established program that trains local police to identify and detain illegal aliens – that the Obama Administration has essentially eliminated. (See Blueprint at 7)

Finally, McCaul’s blueprint provides two recommendations to further improve border security but offers no details on how to implement these ideas. First, he generically calls for improving interagency coordination to produce “unity of effort.” (Id. at 8) Additionally, he suggests DHS should “work” with leaders in Mexico, Central America, and South America to address illegal immigration. (Id.)

Understanding the blueprint’s shortcomings is important because it is likely to be the foundation of any immigration bill moved in the next Congress. With Republicans expected to keep control of the House, McCaul — who is a close ally of Speaker John Boehner (R-OH), is poised to retain the chairmanship of the Homeland Security committee. Given the closet relationship between McCaul and Boehner, and the Speaker’s desire to pass immigration reform, there is a distinct possibility that Boehner’s staff, led by pro-amnesty Becky Talent, played a significant role in drafting the document.

myE-Verify Launches Social Security Number Locking Tool

Last Monday, U.S. Customs and Immigration Services (USCIS) launched a new tool, called Self Lock, designed to combat illegal aliens who steal identities in order to game E-Verify. (USCIS press release, Oct. 6, 2014) The new Self Lock service accomplishes this by allowing a registered myE-Verify user to stop any use of that user’s social security number within E-Verify. (USCIS website, Sept. 23, 2014)

House Judiciary Chairman Bob Goodlatte (R-VA) praised the creation of Self Lock saying, “Americans now have an easy way to prevent people from using their Social Security numbers to work unlawfully in the United States.” (Goodlatte press release, Oct. 6, 2014) Chairman Goodlatte also commended the House Judiciary Committee for voting a bill out of committee with a similar social security number lock program. (Id.; see also House Judiciary markup of H.R. 1772, June 26, 2013) That bill was Representative Lamar Smith (R-TX)’s Legal Workforce Act (H.R. 1772), which would also make E-Verify mandatory for all U.S. employers. To date, the House has not brought H.R. 1772 to a floor vote. In a 2013 survey, 92% of users reported that E-Verify is effective in screening new employees. (E-Verify Survey Report, Apr. 30, 2014)

TSA Will Accept Illegal Aliens Driver’s Privilege Card as ID to Board Aircrafts

Last week, the Transportation Security Administration (“TSA”) confirmed, contrary to claims made by illegal alien lobby organizations, that it will allow illegal aliens to board commercial airlines by presenting an Oregon driver’s privilege card. (Politifact Oregon Oct. 7, 2014) Oregon’s driving privilege cards will be given to illegal aliens, or any applicant who cannot prove that he or she has lawful presence in the United States, and is set for considered by Oregon voters on November 4th under Ballot Measure 88. (Id.)

The controversy arose when Lars Larson, a talk show radio host based in Portland, made public letters he received from TSA stating the agency would accept Oregon’s driver’s privilege card for identification at the airport. (Id.) This admission is important because the language that appears on the ballot for Measure 88, referred to as its ballot title, says: “The driver card may not be used as identification for air travel, to enter a federal building, to register to vote or to obtain any government benefit requiring proof of citizenship or lawful presence in United States.” (Measure 88) Causa Oregon, a local illegal alien lobbying group, insists on this point. (Politifact Oregon, Oct. 7, 2014) “Ballot Measure 88 clearly states that it will be issued only to grant driving privileges, and prohibits use of the driver cards for anything other than the listed purposes,” said spokesman Erik Sorensen in an email to Politifact Oregon. (Id.)

Politifact Oregon contacted TSA to investigate Lars Larson’s claims. (Id.) Nico Melendez, a Western Region TSA spokesman in California, responded, “State-issued driver cards would be acceptable forms of identification for our document-checkers at the airport. At this point, the understanding is that a card like this would be an acceptable form of identification.” (Id.) He further commented, “What we are doing is verifying that the person who shows the card is the person who is traveling. It’s not an immigration check.” (Id.)

TSA’s admittance that it will accept illegal aliens’ driving privilege cards as a valid form of identification to board an aircraft is especially disturbing considering recent national security threats. Unlike legal immigrants, illegal aliens are not subject to stringent background checks or face-to-face interviews to determine the existence of any public safety or national security threat they might pose. Illegal aliens usually do not have valid U.S. identification or work authorization documents. Therefore, they depend on foreign or forged documents to travel on commercial airlines.

Although REAL ID Act was passed to solve this problem, it has yet to be implemented by the federal government. The REAL ID Act was passed in 2005 in response to the terrorist attacks to the United States on September 11, 2001 when the 9/11 Commission found that the 19 terrorists involved in the attack carried among them over 30 state driver’s licenses and identification cards. (9/11 Commission Report) The Act prohibits federal agencies from accepting driving privilege cards issued to illegal aliens for federal identification purposes. (REAL ID ACT of 2005) The Obama administration repeatedly pushed back implementation of REAL ID, and currently purports its implementation deadline for these provisions to be January 2016. (Department of Homeland Security FAQ on REAL ID)