U.S. Legislative Immigration Update February 7, 2011

Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this February 7, 2011 Legislative Weekly. FAIR tracks pending immigration laws in the United States which can impact homeland security in positive or negative ways and are a valued resource.

  • Migration Policy Institute Hopes to Undermine 287(g) Programs with Latest Report
  • Rep. Poe Reintroduces “National Guard Border Enforcement Act”
  • ICE Exposes Sham University in California
  • Pew Hispanic Center: Eight Percent of U.S. Newborns are to Illegal Aliens

 

Migration Policy Institute Hopes to Undermine 287(g) Programs with Latest Report

Last week, the Migration Policy Institute (MPI) released a report critical of the 287(g) program, an important program that helps train local law enforcement agencies to assist in the enforcement of federal immigration laws.  (Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, Jan. 2011)  The MPI report examines the implementation of the 287(g) program in several localities and concludes that certain law enforcement agencies were using the program to remove all illegal aliens instead of only criminal legal aliens.  This practice, MPI claims, runs counter to the Obama administration’s enforcement priorities and the claim is the original intent of the program. (Id.)

The 287(g) program was enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act.  (ICE Fact Sheet)  Under § 287(g) of the Immigration and Nationality Act (INA), state and local law enforcement officials may enter into agreements with the Department of Homeland Security (DHS) to perform immigration law enforcement functions at the local level.  (Id.)  After signing an agreement with DHS, the authorized local law enforcement officers must then receive appropriate immigration enforcement training and perform their duties under the supervision of ICE officers.  There are currently 72 jurisdictions across America operating with 287(g) agreements. (Id.)

In its study, MPI complained that officers are using the 287(g) program to issue immigration detainers to virtually all illegal aliens they encounter, including those who commit traffic offenses.  (Id.)  Despite MPI’s complaints, this is fully consistent with federal law.  Under section 287(g)(1) of the INA, a local officer trained under 287(g) may carry out functions “consistent with State and local law.”  (INA §287(g)(1))   Thus, it is legal for an officer authorized under 287(g) to issue an immigration detainer to an individual determined to be illegal during the course of the traffic stop.  Nevertheless, MPI believes that the 287(g) should not be used to detain illegal aliens whenever police officers encounter, finding that jurisdictions that used 287(g) to detain illegal aliens in this manner “had more significant negative impacts on immigrant communities,” including “avoidance of public places, changes in driving behavior, fear and mistrust of authorities, and reluctance to report crimes.”  Although many might characterize this as deterrence, MPI recommends that Immigration and Customs Enforcement (ICE) limit the program so that detainers are only issued to illegal aliens after they are convicted of a felony or three or more misdemeanors, or if they have a prior removal order.  (Delegation and Divergence at 4, 50.)

MPI also voiced concern that 287(g) encourages a racial profiling which incites fear among immigrant populations and encourages communities to relocate from 287(g) jurisdictions.  (Id. at 38; MPI Event, Jan. 31, 2011)  MPI said that despite the complaints of racial profiling, it did not investigate these claims due to “data limitations.”  Meanwhile, a spokesman for Montgomery County Executive Ike Leggett denied that 287(g) results in population shifts out of racial profiling fears: “[I]t has often been said by folks who are in Northern Virginia and the Frederick County Sheriff that illegal immigrants are flocking to Montgomery County.  That’s not true.”  (Washington Examiner, Feb. 2, 2011)  In addition, Sheriff Charles Jenkins of Frederick County, Maryland—one of the 287(g) jurisdictions MPI observed—reported that they have had no problems with rights violations.  “All the myths of profiling – they just don’t exist,” he said.  (Id.)

MPI further asserts that the 287(g) program results in prohibitive state and local costs, in addition to “downstream” federal costs.  (Id. at 29)   At a public panel discussion to detail the report, an MPI panelists provided to a cost estimate of $5 billion annually for the enforcement program, but that number does not appear in the report and it is unclear where this estimate originated.  (MPI Event, Jan. 11, 2010)  FAIR’s own research team has estimated illegal immigration creates a national annual cost of $113 Billion, twenty times greater than the claimed cost of the 287(g) enforcement program.  (FAIR: Immigration Facts National Data, 2010)

MPI is considered to be one of the influential organizations helping the Obama Administration develop immigration policy.  One of its most prominent fellows, Doris Meissner, served as the Commissioner of the Immigration and Naturalization Service for the Clinton Administration.  MPI’s report is therefore an important indicator of how outside organizations will be attempting to change the Obama Administrations approach to immigration enforcement.  Ironically, MPI’s recommendations that the Obama Administration curtail use of the 287(g) program comes at a time when state and local governments nationwide are seeking out additional ways to enforce immigration rules because the federal government has fallen short.  (See FAIR Legislative Updates, Jan. 10, 2011; Jan. 18, 2011; Jan. 24, 2011; Jan. 31, 2011)

Rep. Poe Reintroduces “National Guard Border Enforcement Act”

On the first day of the 2011 legislative session, Rep. Ted Poe (R-TX) reintroduced the “National Guard Border Enforcement Act” (H.R.152), a bill that aims to secure the U.S.-Mexico border by increasing the number of National Guard Troops deployed.

Under H.R. 152, the deployment of National Guard troops to the border takes place in two ways.  First, it requires that the Secretary of Defense deploy no less than an additional 10,000 National Guard Troops along the U.S.-Mexico border.  (§ 2(a)(1))  These troops are to remain deployed along the border until Homeland Security certifies that the Federal Government has achieved operational control of the border (operational control is defined as “the prevention of all unlawful entries into the U.S., including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband). (Id.; Public Law 109-367) Second, the bill provides that a governor of a U.S.-Mexico border state may request additional troops from the Secretary of Defense if more troops are needed to attain operational control.  (§ 2(a)(2))

Key to Rep. Poe’s “National Guard Border Enforcement Act” is that troops may be deployed under Section 502(f) of Title 32 of the U.S. Code.  Under Title 32, command and control over the National Guard lies with the governor of each respective state; however, troops serve a federal purpose and receive federal pay and benefits, saving state governments from the costs of deploying the troops themselves. (CRS Report, June 16, 2010) Arizona Governor Jan Brewer, for example, has stated that she would like to use her authority as Governor to invoke the National Guard herself but that the State of Arizona could not afford it.  (NY Times, May 25, 2010)

Rep. Poe’s bill also provides federal funding to a state for the implementation of a drug interdiction program pursuant to Section 112(a) of Title 32 of the U.S. Code.  (§2(b))  Thus, the Secretary of Defense may grant funding to the governor of a state who submits a “drug interdiction and counterdrug activities plan.” (CRS Report, June 16, 2010) Because securing the porous U.S.-Mexico border is critical to preventing drug smuggling, the drug interdiction plans will likely include border security and immigration-related functions. (Id.)

President Obama sent 1,200 National Guard troops to the southern border during August and September of 2010; however, the number of illegal aliens coming across the border has remained unchanged since that deployment, suggesting that additional troops and overall more resources are needed. (Pew Hispanic Center Report, Feb. 1, 2011) Upon the introduction of his bill, Rep. Poe declared: “Texans are tired of the federal government’s failure to secure our borders and enforce our laws, yet at the same time running roughshod over state governments when they try to enforce the law and protect their citizens.” (Rep. Poe Press Release, Jan. 6, 2011) “The federal government’s ‘not our problem’ attitude is unacceptable and this legislation will require the Defense Department to do what they were created to do – protect the people of this country and the dignity of our borders.” (Id.)

ICE Exposes Sham University in California

Last month, U.S. Immigration and Customs Enforcement (ICE) agents searched the Tri-Valley University campus in Pleasanton, CA as part of an investigation into whether the University is being used as a sham to fraudulently admit individuals to the U.S. under the student visa program. (Fox News, Jan. 28, 2011)

The complaint filed by the U.S. District Attorney’s Office claims that the University’s President and founder, Susan Su, was part of an elaborate scheme to defraud the government, using false statements and misrepresentations to acquire visas.  (San Jose Mercury News, Jan. 21, 2011) According to the complaint, “Since its inception . . . Tri-Valley University has been a sham university, which Su, and others, have used to facilitate foreign nationals in illegally acquiring student immigration status that authorizes them to remain in the United States.” (Id.)  Su was caught giving F-1 student visas to undercover agents posing as foreign nationals, who told her they wanted to come to the U.S, but had no intention of attending classes. (Fox News, Jan. 28, 2011) Su and the University have allegedly made millions from the scheme. (San Jose Mercury News, Jan. 21, 2011)

According to officials, the alleged fraud was complex in nature. To entice foreign nationals to enroll, the University offered Curricular Practical Training (CPT) to its students allowing them to work up to 40 hours a week from day one of the semester.  (The Times of India, Feb. 3, 2011) CPT includes any internship, cooperative education, or any other type of practicum offered by sponsoring employers through agreements with the school. (ICE Website, Feb. 5, 2011) Demonstrating the extent to which CPT may be exploited, the Times of India reported that one Indian student, who went to Schiller International University in Florida for her MBA, “attended” Tri-Valley with a 20 other students after her course was over to take advantage of the University’s CPT program.  (The Times of India, Feb. 3, 2011)

ICE approved Tri-Valley University’s participation in the Student Exchange and Visa Program (SEVP) in February 2009, the school to sponsor F-1 visas for foreign students.  (Id; ICE approved SEVP schools)  For a foreign student to maintain his or her visa status, he or she must show they are making progress toward completing coursework and physically attend classes. (Id.) ICE officials believe that the University had the same Silicon Valley apartment address listed for a majority of its students to give the impression that the students were physically attending classes when most do not even live in California.  (Id.; Fox News, Jan. 28, 2011) Consequently, most of the students are thought to be working in other states and are now scrambling to either transfer to another school, or get a valid visa to stay in the United States.  (Fox News, Jan. 28, 2011)

As of last fall 1,555 students were enrolled at Tri-Valley University and approximately 95 percent were from India. (The Huffington Post, Jan. 31, 2011) “I don’t think any of them had any idea this was a sham university,” said Susmita Gongulee Thomas, consul general of India in San Francisco. “I don’t think any of them had the motivation to defraud any rules of the U.S. government … These students came here genuinely to improve their prospects and they should not be criminalized or victimized.” (Id.) However, reports from India indicate that students received 20 percent off of their tuition for every admission to the University they helped facilitate.  (The Times of India, Feb. 3, 2011) Students paying full price were charged $5,400 per semester.  (Fox News, Jan. 28, 2011)  In response to the investigation, Su stated in broken English, “Make millions dollars– that is true . . .  [W]e do not do cheating, we suppose to be right. This is the standard we charge, with so many students, we never forced anybody to sign up with us.” (Fox News, Jan. 28, 2011)

Pew Hispanic Center: Eight Percent of U.S. Newborns are to Illegal Aliens

According to a new report issued by the Pew Hispanic Center, illegal aliens gave birth to eight percent of the newborns in the U.S. from March 2009 to March 2010.  The report revealed that within the time period studied, 350,000 newborns had at least one illegal alien parent, up 10,000 from the previous year. Of the illegal aliens having babies in 2009-2010, nine percent had arrived in the U.S. in 2008 or later.  Thirty percent of the illegal aliens arrived in the U.S. between 2004 and 2007, with the remaining illegal aliens having arrived sometime before 2004. The report also revealed that 17 percent of newborns had parents who are legal immigrants, meaning that 26 percent of those born in the U.S. this last year were to non-natives.