Immigration Reform News and Impact on US Homeland Security October 7, 2014

 WASHINGTON, Immigration news and analysis this week from Washington as the Federation for Immigration Reform reports on weak US policies endanger their citizens to the Ebola threat. This issue is raising troubling questions about the government’s willingness to take the steps needed to prevent an outbreak, while continued illegal entry increases the dangers of diseases spreading among American communities.

  • Lax Policies Fuel Ebola Risk in U.S.
  • Changes to Refugee Program Pits Central Americans against Cubans
  • One in 10 Working Age Adults Have Limited English Skills
  • Discrimination Complaint Filed Against Lawrenceville, VA for Refusing Illegal Alien Minors
  • FAIR Releases 113th Congress Voting Report

Lax Policies Fuel Ebola Risk in U.S.

Last Tuesday, a Liberian national named Thomas Eric Duncan became the first patient to be diagnosed with Ebola in the United States, raising troubling questions about the government’s willingness to take the steps needed to prevent an outbreak on U.S. soil. (USA Today, Oct. 2, 2014)

Mr. Duncan traveled to the United States on a tourist visa to visit his family. Travel to the U.S. from Liberia requires an individual to obtain a visa from the U.S. government. In addition to filling out forms and paying fees, a visa applicant must appear for an interview at the U.S. Consulate in Monrovia. (U.S. Embassy for Monrovia Liberia website) There, consular officers will ask about the details of the applicant’s trip, the reasons to return to Liberia after a temporary visit abroad, and ability to pay for the travel. In general, to qualify for a nonimmigrant visa, applicants must prove that they have a clear purpose of travel, can afford the costs of their trip, and that they have clear and convincing ties outside the United States. (Id.)

Under these criteria, the State Department should not have given Mr. Duncan a visa. Indeed, if current information is accurate, consular officials should have denied Duncan based on the following grounds that indicate he was likely to overstay his visa:

  • He was unemployed, having suddenly quit his job on September 4, soon after a visit from his sister;

  • He had a girlfriend/fiancée and a son in the United States;

  • He had family and other ties in the United States, including: his sister, his mother (both of whom reportedly were desperately trying to get him to the United States in recent weeks), a son, and the mother of his son;

  • He had potentially weak ties to Liberia, having lived in a refugee camp in Ghana during Liberia’s civil war, only returning home three or four years ago; and

  • He was traveling from a country, Liberia, with a high overstay rate.

(Bloomberg, Oct. 5, 2014; Time, Oct. 2, 2014; heavy.com, Oct. 1, 2014; Washington Post, Oct. 2. 2014; Bloomberg.com, Oct. 5, 2014) All of these factors are key indicators of a traveler who is planning to use a tourist visa to get into the country but then take advantage of lax enforcement policies to stay permanently. Indeed, a friend of the sister who worked to bring Duncan to the U.S. told reporters: “many Liberians try to stay as long as they can… [Duncan’s sister] spends all her time working to send money home. She supports her siblings.” (Time, Oct. 2, 2014)

The State Department also had the authority to deny Mr. Duncan a visa based on public health grounds. Federal law provides that “any alien (i) who is determined … to have a communicable disease of public health significance” is inadmissible to the United States. (See INA §212(a)(1); 8 U.S.C. 1182) The regulations related to this section provide that a communicable disease of public health significance includes “[c]ommunicable diseases as listed in a Presidential Executive Order, as provided under Section 361(b) of the Public Health Service Act.” (42 CFR 34.2) In 2003, President George W. Bush issued Executive Order 13295 (amended in 2005 by Executive Order 13375, and by President Obama on July 31, 2014) which includes Ebola on the list of communicable diseases. Thus, any alien with Ebola is by definition inadmissible.

The government may also require applicants for nonimmigrant visas, such as a tourist visa, to undergo medical examinations. In fact, federal regulations provide that an applicant for a nonimmigrant visa shall be required to take a medical examination if the consular officer believes that a medical examination might disclose that the applicant is medically ineligible for a visa. (INA Sec. 232; 42 U.S.C. 252; 22 CFR 41.108(a)(3); CDC.gov) Medical examinations in foreign countries are performed by physicians selected by consular officials (panel physicians). (8 CFR 232.1; CDC.gov) The medical examinations include, at a minimum, a physical exam and a medical history, but may include more depending on the circumstances. (42 CFR 34.3) However, it’s unknown whether the U.S. Government required Mr. Duncan to have a medical examination or is generally requiring travelers from Liberia or other Ebola-stricken countries to undergo medical examinations before obtaining a visa to enter the United States. 

However, according to current information, Mr. Duncan may have obtained his visa before he was exposed to Ebola. Mr. Duncan helped take an Ebola-infected woman to the hospital on September 15, four days before he departed. (NBC News, Oct. 2, 2014) Then, on September 19, Duncan flew from Monrovia to Brussels, from Brussels to Washington D.C. (Dulles), and finally arrived in Dallas on September 20. On September 24, Duncan began showing symptoms. On September 30, medical tests confirmed the Ebola infection. (Id.)

The circumstances of Mr. Duncan’s case not only suggest more stringent screening is needed at consular sites, it also demonstrates the limited effectiveness of health screenings at airports. Encouraged by the U.S. Government and with support of trained U.S. medical experts, Liberia has instituted health screenings at its airport. Currently, the screening consists of a temperature check and a questionnaire asking whether the traveler has had symptoms or been in contact with anyone who might have been stricken with Ebola in the past 21 days, the maximum incubation period for the disease. (New York Times, Oct. 1, 2014; New York Times, Oct. 2, 2014; NBC News, Oct. 3, 2014) However, health experts say success of any screening depends on the individual being willing to disclose that he was exposed to Ebola, and infected individuals can evade detection by taking large doses of ibuprofen. (Id.) At the airport, Duncan attested in a questionnaire that he had not been in contact with anyone who might have Ebola, despite his aiding an Ebola-stricken woman only four days before his flight. (Dallas News, Oct. 2, 2014) Liberian officials say they plan to prosecute Mr. Duncan for lying on this form. 

In addition to screenings in Liberia, Homeland Security officials also play a role in spotting signs of Ebola in all individuals who pass through U.S. ports of entry. (See Congressional Research Service, Immigration Policies and Health-Related Grounds for Exclusion, Aug. 13, 2014) The Customs and Border Protection (CBP) Inspector’s Field Manual states that CBP officers — who man international airports — are responsible for observing all travelers for obvious signs and symptoms of quarantinable and communicable diseases, such as: (1) fever; (2) jaundice; (3) respiratory problems; (4) bleeding from the eyes, nose, gums, or ears or from wounds; and (5) unexplained weakness or paralysis. In addition, the CBP considers an individual to be ill in terms of foreign quarantine regulations when the individual has:

  1. A temperature of 100 degrees or more, accompanied by one or more of the following: rash, jaundice, glandular swelling, or which has persisted for 2 days or more; or

  2. Diarrhea severe enough to interfere with normal activity or work.

However, CBP officers are not medically trained or qualified to physically examine or diagnose illness among arriving travelers. (DHS, Inspector’s Field Manual, Chapter 17, Section 9, March 2006; CRS, Aug. 13, 2014; GAO-09-58, October 2008)

However, like officials at the airport in Monrovia, CBP officers in the U.S. did not flag Mr. Duncan as potentially infected with Ebola. According to current information, Duncan did not show symptoms until four days after he arrived in Dallas. (NBC News, Oct. 2, 2014) Two days later, on September 26, he went to a Texas hospital and informed the staff he had recently travelled from Liberia, but that information somehow did not reach the appropriate professionals, and the hospital sent him home with antibiotics. (Id.) On September 28, Dallas paramedics brought him back to the hospital in response to an emergency call, and medical tests confirmed he has Ebola two days later. (Id.; CBS News, Oct. 1, 2014) 

While Mr. Duncan is now in quarantine in the hospital, the Center for Disease Control (CDC) and Dallas health officials are monitoring individuals possibly exposed to Ebola in the United States, with the number of individuals monitoring reaching 100 at one point but now down to 50. (Fox News, Oct. 2, 2014; ABC News, Oct. 5, 2014) According to the CDC, Ebola spreads through contact with blood or bodily fluids of an infected person. (CDC.gov) The family members that hosted Mr. Duncan were confined to their home under guard after failing to comply with a request not to leave their apartment. (Associated Press, Oct. 2, 2014) A hazardous materials crew finally decontaminated the apartment on Friday, five days after Duncan was admitted to the hospital, and a Dallas County Judge escorted the family to a new home in a gated community. (nbdfw.com, Oct. 4, 2014)

Despite the failure of the system to protect Americans from Ebola, the White House still will not institute any travel restrictions. (Daily Caller, Oct. 1, 2014) White House spokesman Josh Earnest said Wednesday that the current Ebola measures will be sufficient, as “the sophisticated medical infrastructure” in the United States will prevent the “wide spread of the virus,” and chances of a U.S. epidemic are “incredibly low.” (Id.; The Hill, Oct. 1, 2014) He explained: “we are confident” that by following the Center for Disease Control’s (CDC) measures will protect both “the safety of the travelling public” and the “broader American public.” (Daily Caller, Oct. 1, 2014)

In statements on Friday and Saturday, Tom Frieden, the director of the CDC, insisted that restricting air travel would put more Americans at risk of contracting Ebola. (Politico, Oct. 3, 2014; Fox News, Oct. 5, 2014) Closing the border, he said, “wouldn’t work.” (Id.) “By isolating these countries,” Frieden said, “it’ll make it harder to help them, it will spread more there and we’d be more likely to be exposed here.” (Politico, Oct. 3, 2014) He added, “We’re not going to be able to get to zero risk no matter what we do unless we control the outbreak in West Africa.” (Fox News, Oct. 5, 2014) However, Frieden did not explain how banning travel of nationals of stricken countries into the U.S. — at least temporarily — might reduce exposure to Americans while the U.S. government assists in mitigation efforts in Africa. 

Meanwhile, lawmakers are beginning to demand answers from CBP after the news outlet Breitbart Texas published an internal report revealing that over 3,500 individuals from Ebola-stricken nations have entered the U.S. since January with no special screening. (Breitbart, Oct. 3, 2014) The federal agent who leaked the report said, “This internal report, coupled with the current Ebola case in Dallas, reveals that our government is not only allowing individuals from Ebola-stricken nations to enter the U.S. with only the basic screening they give to passengers from any foreign nation, but the claims of the issue being properly addressed in the West African countries are untrue.” (Id.) Now, Senator John Cornyn (R-TX) has written a letter to CBP Commissioner R. Gil Kerlikowske, demanding answers. “I am writing to request additional information from [CBP] on actions to improve the screening process for incoming passengers into the United States,” Cornyn wrote. He continued, “Under current protocols, what specific events or indicators would justify an enhanced screening process by CBP? Is CBP currently considering additional plans to increase enhanced screenings of incoming passengers?”

Notably, only three weeks ago, the President said the arrival of an Ebola-infected individual on U.S. soil was an “unlikely event.” In a speech before the CDC, he stated, “We’ve been taking the necessary precautions, including working with countries in West Africa to increase screening at airports so that someone with the virus doesn’t get on a plane for the United States.” (Remarks by the President on the Ebola Outbreak, Sept. 16, 2014)

Changes to Refugee Program Pits Central Americans against Cubans

On Tuesday, President Obama announced changes to the United States’ refugee program that gives the Administration more leeway to admit Central Americans as refugees at the expense of Cubans.

First, the Obama Administration announced that the United States will launch in-country refugee processing in Honduras, Guatemala, and El Salvador in 2015. (New York Times, Sept. 30, 2014; Wall Street Journal, Oct. 1, 2014) The United States has rarely processed refugees in their home countries, and never in countries accessible to the U.S. by land. Under the Immigration and Nationality Act, an alien must generally be outside the country of his or her nationality to be considered a refugee. (INA § 101(a)(42)(A)) Only “under special circumstances” may the President, after appropriate consultation with Congress, specify persons within their home country as refugees. (INA § 101(a)(42)(B)) Although earlier in-country processing programs included Vietnam, Bosnia (See President’s FY 2015 Report, Oct. 2, 2013 at p. 8), and Haiti (CRS Report on U.S. Immigration Policy on Haitian Migrants, Jan. 21, 2005 at p. 3), the State Department previously characterized in-country refugee processing as an “extraordinary undertaking that requires, among other things, a special determination by the President.” (See Administration Policy Toward Haitian Refugees, 2002)

President Obama’s new in-country refugee processing program will be open to unmarried Honduran, Guatemalan, and El Salvadoran nationals under the age 21 who are children of certain lawfully present qualifying relatives residing in the United States. (See President’s FY 2015 Determination, Sept. 30, 2014; President’s FY 2015 Report, Sept. 18, 2014, at p. 9-10) To justify the establishment of these new overseas refugee processing centers, Obama Administration cited the “actions of illegal armed groups, including organized crime, leading to high rates of drug and human trafficking, brutal homicides, and sexual and gender-based violence” in Central America. (President’s FY 2015 Report at p. 43) However, courts have traditionally held that general violence and poverty do not qualify an individual for refugee status. (See FAIR Legislative Update, July 29, 2014)

Second, President Obama announced that he is shifting the annual allocations within the refugee program to admit Hondurans, Guatemalans and Salvadorans as refugees. To set these allocations, the President sends a report to Congress (See President’s FY 2015 Report to Congress, Sept. 18, 2014) and then issues a determination as a presidential memorandum before the start of each new fiscal year. (See President’s FY 2015 Determination, Sept. 30, 2014) The Immigration and Nationality Act (INA) sets the annual refugee ceiling at 50,000, but the President, after consulting Congress, may increase that ceiling if it is “justified by humanitarian concerns or is otherwise in the national interest.” (INA § 207(a)(1)-(2))

Through his announcement last week, President Obama set the FY 2015 cap on refugees at 70,000, consistent with the prior two years. (See President’s FY 2015 Report to Congress, Sept. 18, 2014) President Obama allocated 68,000 admission spots among five geographic regions of the world:

  • Africa, 17,000

  • East Asia, 13,000

  • Europe and Central Asia, 1,000

  • Latin America and Caribbean, 4,000

  • Near East and South Asia, 33,000

Finally, as in past years, the President allocated the remaining 2,000 admission spots to a reserve category, and authorized the State Department to transfer any of the 2,000 remaining spots to regions if need arises. (See President’s FY 2015 Determination, Sept. 30, 2014)

While this allocation is not significantly different from prior years, the Obama Administration changed the distribution of refugee spots within the category of Latin America/Caribbean to benefit Hondurans, Guatemalans, and Salvadorans. (Id.; see also President’s FY 2014 Determination, Oct. 2, 2013) As described above, the U.S. government first allocates the overall number of refugee admissions among major regions of the world. Then, within each geographical region, the State Department grants access to the refugee program based on priority levels:

  • Priority – 1: individual referrals of any nationality by the United Nations High Commissioner on Refugees (UNHCR), a U.S. embassy, or a nongovernmental organization;

  • Priority – 2: designated nationalities, clans, ethnic groups, or those in specified locations; and

  • Priority – 3: designated nationalities who have immediate family members in the United States who initially entered as refugees or were granted asylum. 

In previous years, Cuba was the only country in the Latin American/Caribbean region designated as priority 2 or priority 3. Cubans obtained a significant benefit from this, as the State Department allocated most of the refugee spots within the Latin American/Caribbean region to priority 2 cases. As a result, Cubans comprised 94% and Colombians comprised 5% of the refugee admissions within the Latin American/Caribbean region in fiscal year 2013. (See State Department Fiscal Year 2013 Refugee Admissions, July 1, 2014)

The Obama Administration, however, is now making changes to these categories to benefit Central Americans at the expense of Cubans. First, the Obama Administration increased the number of admissions under priority 1 from 400 to 700. (President’s FY 2015 Report, Sept. 18, 2014) UNHCR officials, who have advocated for Honduran, Guatemalan and El Salvadoran unaccompanied minors to be designated refugees internationally this past year, are likely to refer them, and will have more opportunities to do so. (See Associated Press, July 8, 2014) Then, the Obama Administration designated Honduras, Guatemala, and El Salvador as countries with priority 2 and priority 3 designations, which they will now share with Cubans. In addition, the Obama administration has reduced the total number priority 2 spots available from 4,550 to 3,250. The number of priority 3 spots remains the same, but again, Cuba will now share the Priority 3 category with Honduras, Guatemala and El Salvador.

Finally, the Obama Administration also removed a category in the Cuban refugee program. In the last fiscal year, Cubans could be eligible for the refugee program if they were: (1) former political prisoners; (2) members of persecuted religious minorities; (3) human rights activists; (4) forced labor conscripts (1965-68); (5) persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs; and (6) persons who have experienced or fear harm because of their relationship — family or social — to someone who falls under one of the preceding categories. In fiscal year 2015, however, the State Department removed the sixth criterion. (See President’s Report for FY 2015, Sept. 18, 2014 at p. 46; but see President’s Report for FY 2014, Dec. 19, 2013 at p. 43)

The President, through this announcement, is administratively executing the plans he proposed in late July. (See Wall Street Journal, July 24, 2014; New York Times, July 24, 2014) At that time, the Obama Administration planned to establish the Honduran portion of the Central American refugee processing program first, at a cost of $47 million to admit 1,750 Hondurans. (Id.) After two years, it was reported that program would be expanded to Guatemala and El Salvador. Now, it seems, the President is implementing the program in all three countries simultaneously.

One in 10 Working Age Adults Have Limited English Skills

A new report from the Brookings Institution found that one in 10 working age adults have limited English proficiency (LEP). (Brookings Institution, Investing in English Skills, September 2014 at 6) That translates to 19.2 million working-age adults — defined as 16 to 64 years old — who struggle with the English language. This number is also two-and-a-half times as many as in 1980. (Id.) Additionally, almost 45 million people in the U.S., which equals 22 percent of working-age adults, speak a language other than English at home. (Id.)

Unsurprisingly, immigration — especially recent entrants — is fueling the LEP population. Indeed, two-thirds of LEP adults are native Spanish speakers. (Id. at 7) The report also found that LEP adults tend to cluster in cities, which allows them to get by without fully assimilating. For example, nearly 25 percent of working-age adults in Los Angeles and Miami have LEP while New York City’s LEP population is 18 percent. (Id. at 15)

The report also emphasized the link between English proficiency and economic success. “In general, LEP individuals experience worse labor market outcomes than those who are proficient in English,” the report notes. (Id. at 9) Indeed, LEP workers earn 25-to-40 percent less than their English proficient coworkers. (Id.) Additionally, 25 percent of the LEP population lives in poverty compared to 14 percent who are English proficient. (Id. at 12) However, the report also found that most LEP adults work in low skilled jobs where English proficiency is not required which suggests that these individuals will not try to learn English and likely remain impoverished. (See id.)

Discrimination Complaint Filed Against Lawrenceville, VA for Refusing Illegal Alien Minors

Last week, the Housing Opportunities Made Equal of Virginia, Inc. (“HOME”) and St. Paul’s College in Virginia filed an administrative complaint against Lawrenceville, Virginia and its county sheriff, alleging that the town discriminated against unaccompanied illegal alien minors by denying them equal housing opportunities in violation of the Fair Housing Act.

In June, over 1,100 residents of Lawrenceville packed into a local high school to protest the federal government’s plan to use space at St. Paul’s College in their town to house over 500 unaccompanied illegal alien minors. (Washington Times, June 19, 2014) Lawrenceville’s total population is less than 1,500, and residents feared increasing the town’s population by 30% by adding 500 unaccompanied illegal alien minors would serve a huge burden to taxpayers and local schools. (See U.S. Census Bureau) The meeting was held with officials from the Department of Health and Human Services (“HHS”) after their plans were leaked. (Washington Times, June 19, 2014) Officials apologized for the lack of notice and communication regarding the plan and gave residents a forum to voice their concerns. (Id.) After receiving overwhelming feedback from concerned residents regarding the spread of disease, crime rates, and allocation of town resources, HHS canceled its plans to contract with St. Paul’s College. (Newsmax, Sept. 29, 2014) “We cannot save the world unless we first focus on children in poverty in the United States,” a resident commented. (Washington Times, June 19, 2014)

While their complaint is not yet public, HOME and St. Paul’s College simultaneously issued a press release, alleging that the unaccompanied illegal alien minors were subjected to discriminatory statements based on their national origin, race, and/or color and were denied an equal housing opportunity. (HOME Press Release, Sept. 25, 2014) Heather Mullins Crislip, President & CEO of HOME, commented, “The Fair Housing Act prohibits discrimination by housing providers, including municipalities, whose discriminatory practices make housing unavailable to persons on account of race, color, religion, sex, national origin, familial status, or disability.” (Id.) Mullins Crislip did not explain, however, how residents expressing their concerns at a town meeting constitutes discrimination in “the sale or rental” of a dwelling, which the Fair Housing Act specifically prohibits. (42 U.S.C. 3601-3619) Lawrenceville residents were not parties to the contract regarding the rental of St. Paul’s College. They merely expressed their views on the situation.

The press release also emphasized that everyone in the United States is protected the Fair Housing Act regardless of immigration status. (HOME Press Release)The press release, however, did not explain that while the Act protects illegal aliens from discrimination on the basis of their “race, color, religion, sex, national origin, familial status, or disability,” it does not provide protection against discrimination on the basis of their immigration status. For example, federal law prohibits a landlord from refusing to rent to an individual because they are a national of a certain country, but the landlord is not prohibited from refusing to rent to an individual because they know he or she is an illegal alien. In fact, in Fremont, Nebraska, an ordinance was held to have not violated the Fair Housing Act where it required landlords to evict renters who have been determined by the federal government to be unlawfully present in the United States. (Keller v. City of Fremont

The complaints against Lawrenceville, Virginia were filed with the Department of Housing and Urban Development and are still under administrative review. (Newsmax, Sept. 29, 2014) HOME and St. Paul’s College also filed claims against HHS in its Office of Civil Rights. (HOME Press Release)

FAIR Releases 113th Congress Voting Report

Today FAIR is releasing our Voting Report to give our members insight into how their lawmakers have tackled the complex and thorny issue of immigration during the 113th Congress. FAIR’s Government Relations team assembled this report by sifting through the immigration votes held in 2013 to 2014 and determining which ones were most important with respect to promoting good immigration policy.

Although the 113th Congress saw fewer bills passed than any other Congress in recent history, the Senate did consider a mass guest worker amnesty bill as well as the nomination of U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to be the Deputy Secretary of the Department of Homeland Security (DHS) during its first session. For 2013, the Senate report contains votes on key amendments that reached the Senate floor on the Schumer-Rubio amnesty bill (S. 744), as well as those on critical procedural moves leading up to the final passage. The report also contains the nomination of Mayorkas, who was under investigation by the DHS Inspector General’s office regarding alleged impropriety in administering the EB-5 program and faced accusations of rubberstamping immigration benefits while at USCIS. By contrast, during the second session in 2014, the Senate avoided immigration almost entirely so the Senate report only contains the vote on emergency funding to address the surge of unaccompanied alien minors crossing the border unlawfully.

In the lower chamber, the House of Representatives took little action on immigration on the House floor in 2013. Therefore, we chose only three immigration-related votes on appropriations to present a picture of each Representative’s position. On the other hand, in 2014 the House brought several immigration bills to the House floor. For 2014, the House report contains votes on ending President Obama’s administrative amnesty programs, closing loopholes in the tax code exploited by illegal aliens, and emergency funding to address the surge of unaccompanied alien minors crossing the border unlawfully.

We encourage all of our members to review the Voting Report and learn more about how their lawmakers are representing them. You can access the Report here.