US Legislative Immigration Update July 20, 2009

Right Side News Reports from the Federation for American Immigration Reform in this July 20, 2009 Legislative Weekly…

  • Democratic House Leaders Conceal the Fact That Their Health Bill Covers Illegal Aliens
  • Senate Considers PASS ID – A Bill That Would Provide Driver’s Licenses to Illegal Aliens & Repeal 9/11 Commission Recommendation Regarding Secure IDs
  • Obama Administration Ignores Law, Advocates Asylum for Victims of Foreign Domestic Violence

Democratic House Leaders Conceal the Fact That Their Health Bill Covers Illegal Aliens

Last week, Democratic leaders in the U.S. House of Representatives unveiled their health care reform legislation entitled, “America’s Affordable Health Care Act of 2009.”  (Bill Text).  Despite the language in section 246 of the bill that states: “nothing… shall allow Federal payments [for] individuals who are not lawfully present in the United States,” the bill actually raises more questions than it resolves with respect to whether the bill will burden American taxpayers by giving health care benefits to legal and illegal aliens.

The draft House bill – consisting of 1,018 pages – was introduced by Rep. John Dingell (D-MI) and cosponsored by the chairmen of the three House committees of jurisdiction: Rep. Charlie Rangel (D-NY), Chairman of the Ways & Means Committee; Rep. Henry Waxman (D-CA), Chairmen of the Energy & Commerce Committee; and Rep. George Miller (D-CA), Chairman of the Education & Labor Committee.
Section 202 of this bill creates a Health Insurance Exchange (exchange) and states that “all individuals are eligible to obtain coverage” through the exchange. 

The House Education & Labor Committee has produced a summary of the bill and explains that the exchange will allow individuals and employers to “comparison shop for coverage” and that the bill creates “new affordability credits… for people purchasing [health coverage] through the exchange.”  (Education & Labor Summary).

Under Section 242, all legal aliens will qualify for the affordability credit.  Subsection (d) states that the affordability credits “shall not be treated [as] a benefit provided under section 403” of the Welfare Reform Act of 1996.  Under Welfare Reform, legal aliens are generally required to wait five years before becoming eligible for welfare or other taxpayer funded benefits. 

The House health reform bill eliminates that 5-year waiting period for legal aliens as applied to taxpayer financed health insurance subsidies, such as the affordability credit.  Accordingly, legal aliens will become immediately eligible for this government handout – a handout that would be paid for by the American taxpayers.

Given the bill’s language, illegal aliens are also likely to qualify for the affordability credit.  This is true because there are no provisions that would prevent an illegal alien from participating in the exchange or from receiving the credit.  Likewise, there are no requirements that a government agency verify eligibility, whether through the SAVE system or otherwise.  (FAIR’s explanation of the SAVE System). 

Accordingly, without these important safeguards, illegal aliens would probably receive this subsidy.  The bill does limit eligibility to individuals who are “lawfully present in a State in the United States,” but that language would be ineffective to prevent handouts to illegal aliens.  (Sec. 242(a)(1)).  Under U.S. immigration law, someone’s status as an illegal alien is not determined by lawful presence in a State.  As a result, this language will have no effect in preventing illegal aliens from receiving the credit. 

Critics suggest that if the intent of the bill is to preclude illegal aliens from receiving this subsidy, the current language is woefully inadequate and would have to be dramatically revised.  For example, the bill could limit eligibility for the credit only to a “qualified alien” as defined by the Welfare Reform Act, which would preclude illegal aliens from receiving any benefit.  In addition, including a provision that requires eligibility verification, with the SAVE system, for every applicant for the credit would likewise prevent illegal aliens from receiving the credit.

At the same time as Congress is considering burdening taxpayers with the cost of health care for legal aliens, Massachusetts appears to be retreating from that idea.  Massachusetts is currently the only state to offer so-called “universal health coverage.”  The Bay State is currently facing a budget crisis brought on by a decline in tax revenue and rising demand for state-financed services.  In response, state legislators have recently submitted a budget to eliminate taxpayer subsidized health coverage for approximately 30,000 legal immigrants under the “Commonwealth Care” program.  (Boston Globe, July 12, 2009; New York Times, July 14, 2009; Boston Globe, July 15, 2009; and SouthCoastToday.com, July 16, 2009).

Senate Considers PASS ID – A Bill That Would Provide Driver’s Licenses to Illegal Aliens & Repeal 9/11 Commission Recommendation Regarding Secure IDs

Last week, the Senate Committee on Homeland Security held a hearing on PASS ID (S.1261).  This legislation would repeal and weaken many security standards set forth by the REAL ID Act of 2005. (See FAIR’s Legislative Update, June 22, 2009 and FAIR’s PASS ID Legislative Analysis, July 1, 2009). 

The REAL ID Act was passed after the 9/11 Commission recommended improved security standards in the issuance of driver’s licenses and identification.  REAL ID establishes standards for states to follow when issuing secure identification documents.  Just six months away from the deadline for all 50 states to achieve material compliance under REAL ID, Sen. Daniel Akaka’s (D-HI) PASS ID legislation essentially brings us back to pre-9/11 standards, putting all U.S. citizens at risk. (Id.).

Homeland Security Committee Ranking Member Sen. Susan Collins (R-ME) and former Assistant Secretary for Policy at the Department of Homeland Security Stewart Baker both expressed concern over the specific language in PASS ID which states that “no person shall be denied boarding a commercial aircraft solely on the basis of failure to present a driver’s license or identification card issued pursuant to [PASS ID].” (See FAIR’s Changes Pass ID Would Make to REAL ID).  Currently, the Transportation Security Administration (TSA) shows discretion when a passenger is without identification documents by performing additional screening in order to determine whether or not to allow the passenger to board a commercial aircraft. 

Under the rigid language in PASS ID, when a TSA officer is presented with a non-compliant ID, the officer must provide much more evidence that an individual poses a threat in order to prevent countless lawsuits.  Sen. Collins also mentioned that because a citizen would not be able to board a flight without a REAL ID compliant ID, this would entice state governments to adhere to the legislation.  According to Collins, PASS ID “would eliminate an important incentive for states to adopt federal standards for secure licenses and could impose worrisome restrictions on the discretion of security officials who believe a passenger without a compliant card should not be permitted to board a plane.” (Senate Homeland Security Committee Hearing, July 15, 2009).

Much of the concern expressed by committee members and witnesses was that REAL ID is just too costly and unfeasible for states to implement in the current economic climate.  The Secretary of Homeland Security, Janet Napolitano, testified in support of the PASS ID legislation, stating that REAL ID is “too rigid and needlessly expensive in mandating how states meet their security goals.” 

 Napolitano also claimed that many of the security provisions from REAL ID would still be intact under PASS ID, claiming that under PASS ID we would have caught “most” of the 9/11 hijackers. (Testimony of Janet Napolitano, July 15, 2009).  Mr. Baker, who was working in the Department of Homeland Security at the time when REAL ID was passed, argued that many states are well on their way to becoming “materially compliant” with respect to the issuance of secure identification. Baker noted that enacting PASS ID would essentially just push back full implementation of secure identification standards until 2017 at the earliest, putting all Americans at risk in the meantime. (Testimony of Stewart Baker, July 15, 2009).

Vermont Governor and Vice Chair of the National Governors Association (NGA) Jim Douglas also spoke of the financial constraints state governments have faced when trying to comply with REAL ID.  Although Douglas spoke in support of PASS ID, Vermont is one of the most far along of all the states in becoming compliant with REAL ID.  Governor Douglas stated that the “cost effectiveness” of PASS ID was why he had decided to endorse the legislation. (Testimony of Jim Douglas, July 15, 2009).

It appears that Senate Leadership intends to move the PASS ID legislation through the Senate. Homeland Security Committee Chairman Joe Lieberman (ID-CT) announced at the hearing that the committee will hold an official “mark up” of the bill on July 29. (Senate Homeland Security Committee Hearing, July 15, 2009). At the mark up, committee members will have the opportunity to offer amendments to the bill to alter the legislation. Similar legislation has yet to be introduced in the House of Representatives.

Obama Administration Ignores Law, Advocates Asylum for Victims of Foreign Domestic Violence

Last week, The New York Times revealed that Department of Homeland Security (DHS) officials have filed official court documents indicating the Obama Administration’s support for granting asylum to victims of domestic or sexual abuse. The court documents conflict with specific provisions of federal law and would reverse a longstanding policy of denying asylum to victims of domestic violence abroad. (The New York Times, July 15, 2009).

The court documents were filed as a supplemental brief by DHS in April, but have only recently been made public. The DHS brief lays out the Obama Administration’s position on the case of a Mexican woman who entered the United States illegally in 2004 because she “could not endure the domestic violence abuse” perpetuated by her husband in Mexico. The unidentified illegal alien woman then applied to the U.S. government for asylum in late 2005, claiming that she “cannot return to [Mexico] because my life and health and that of my children are at severe risk and in danger.” (Id.; Declaration of Support, December 30, 2005).

Under federal law, asylum can only be granted to aliens who can prove that they would suffer “persecution or [have] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (8 U.S.C. 1101 (a)(42)). In the past, victims of domestic violence have attempted to argue that they qualify as “a particular social group” and should thus be eligible for asylum. In 1999, an immigration appeals court rejected this argument, stating that victims of domestic violence do not constitute “a particular social group” and are therefore not eligible for asylum. (The New York Times, July 15, 2009).

In this most recent case, an Immigration Judge rejected the Mexican woman’s application for asylum in a decision dated October 15, 2007. The woman then appealed her decision to the Board of Immigration Appeals (BIA). DHS submitted its supplemental brief to the BIA on April 13, 2009. In the brief, DHS admitted that the woman “failed to establish [her] eligibility for asylum,” and pointed out that she had defined her membership in a particular social group in an “impossibly circular” manner.

However, DHS directly contradicted federal law and argued that the woman “could qualify for asylum…based on alternative particular social group formulations.” DHS went on in its brief to lay out “two such formulations,” thereby affirming the Obama Administration’s support for extending asylum to victims of domestic violence. DHS ultimately recommended that the case be returned to a lower court for further consideration. (DHS Supplemental Brief, April 13, 2009).
 
Aliens who are granted asylum in the U.S. are entitled to a myriad of benefits.  These include access to numerous social service benefits, such as: Supplemental Security Income (SSI), food stamps, health care such as Medicaid and welfare.  (See CMS document regarding Section 431 of the Welfare Reform Act). 

In addition, they are permitted to remain in the U.S. while the threat of persecution continues; are given work authorization including a Social Security card; and can travel outside of the U.S. (though traveling to the country of alleged persecution could result in the loss of asylee status).  Aliens can also petition the federal government for a green card after spending just one year in asylee status and can seek this same benefit for their spouses and unmarried minor children. In many cases, an asylee can also bring their spouse and unmarried minor children to the U.S. while in asylee status. (Zhang and Associates, P.C.).   Interestingly, DHS’s brief did not indicate whether the Mexican woman in this case would be barred from bringing her husband to the United States if she were to be granted asylum – even though his abuse is the primary reason she claims she cannot return to Mexico.  (DHS Supplemental Brief, April 13, 2009).
 
DHS’s policy shift will actually reduce pressure on those countries where dramatic reform is necessary to protect the rights of victims of domestic violence, which are disproportionately women. Accordingly, this dramatic shift in U.S. policy will likely undermine America’s effort to protect women of domestic violence abroad.  According to The New York Times, both the Clinton Administration and the Bush Administration considered whether to extend asylum to victims of domestic violence in foreign nations.  Ultimately both decided against this policy shift, fearing the opening of “a floodgate of asylum petitions from battered women across the globe.” The Obama Administration, however, seems committed to moving ahead with the extension despite its consequences here in the U.S. and abroad where reform is most needed. (The New York Times, July 15, 2009).

In addition to the supplemental brief, DHS spokesman Matt Chandler indicated to The Times that the Department is working to complete regulations governing asylum cases dealing with applications related to domestic violence.  While Chandler admitted to The Times that “each case is highly fact-dependent and requires scrutiny of the specific threat the applicant faces,” he went on to add that the Obama Administration “continues to view domestic violence as a possible basis for asylum in the United States.” (Id.).

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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.

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