U.S. Legislative Immigration Update November 15, 2010

Right Side News Reports from the Federation for American Immigration Reform (FAIR) in this November 1, 2010 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.

  • DREAM Act Looms Over Lame-Duck
  • Texas Lawmakers File Immigration Enforcement Bills
  • Guatemalan President Seeks Temporary Protected Status for Citizens

DREAM Act Looms Over Lame-Duck

Speaker of the House Nancy Pelosi (D-CA), stated last week during a Democratic leadership conference call that she would like to see a vote on the DREAM Act take place as early as this week to coincide with the leadership elections on November 17.  (Politico, Nov. 10, 2010)  Speaker Pelosi’s statements are only the latest warning sign that Congressional leaders are serious about pushing amnesty legislation before newly elected members are sworn in.  Senate Majority Leader Harry Reid (D-NV), appearing two days before the election on the Spanish-language network Univision, announced that he plans to bring up the DREAM Act for a vote during the lame-duck session. (The Hill, Oct. 31, 2010) The day after the election, Reid’s spokesman reiterated that the DREAM Act was still on the lame-duck agenda. (CQ Today, Nov. 3, 2010) However, media reports suggest that it will be difficult for either chamber to bring the DREAM Act up until after Thanksgiving due to leadership elections this week and a number of high-priority spending related bills. (Fox News, Nov. 15, 2010)

If passed, the DREAM Act would create a tiered system of granting amnesty to illegal aliens who entered the U.S. before the age of 16 and had lived here for at least five years.   Under the DREAM Act, illegal aliens who are at least 12 years old, have lived in the U.S. for five years, and are enrolled in primary or secondary school are eligible for a stay of removal.  Going even further, illegal aliens who have obtained a high school diploma or have simply been admitted to an institution of higher education are eligible for conditional legal permanent resident (LPR) status.  If aliens who receive conditional LPR status then complete at least two years of a degree program or two years of military service, they are then eligible for regular LPR status, enabling them to become a U.S. citizen in five years.  Although the Senate version of the Act limits eligibility to aliens younger than 35, the House bill contains no age limit. That said, the most recent Senate bill also provides retroactive benefits to illegal aliens of any age. (See FAIR’s Summary of the DREAM Act, Nov. 2010)

The DREAM Act would also reverse current law to allow states to provide in-state tuition to illegal aliens.  (Id.)  It also provides that illegal aliens who receive amnesty are eligible for taxpayer-subsidized loan programs and student assistance programs.

In September, Senator Reid intended to attach the DREAM Act (version S.729) as an amendment to the Defense Authorization Bill, but that attempt failed.  The Defense Authorization bill was already controversial for including provisions on “don’t ask, don’t tell” as well as abortion, and even more Senators objected to using it as a vehicle for an amnesty amendment. When it arrived on the Senate floor, the Defense Authorization bill did not receive enough votes to even begin debate.  (Roll Call Vote 238, Sept. 21, 2010)  At that point, Senator Durbin reintroduced another version of the DREAM Act (S.3827) and Senator Reid placed it on the Senate calendar, allowing him to bring it at any time.  The last time the DREAM Act came up for a vote in the Senate as a stand-alone bill was in 2007. At that time, the bill (S.2205) also failed on a cloture vote – 52-44. (Roll Call Vote 394, Oct. 24, 2007)

The drama of a lame-duck vote on the DREAM Act is heightened by the fact that Senators elected since 2007 have not yet voted on the DREAM Act, while others are retiring and may be tempted to switch their votes. In addition, three new Senators — Chris Coons (D-DE), Joe Manchin (D-WV), and Mark Kirk (R-IL) — will take office during the lame-duck session instead of in January.  The former two are scheduled to be sworn in on November 15, while Senator-elect Kirk is not expected to be sworn in until after the Thanksgiving recess.  (Politico, Nov. 5, 2010) Although Kirk stated that he would not vote for the DREAM Act during a lame-duck session, Coons supports amnesty for illegal aliens, and Manchin’s position on immigration remains largely unknown.  (See FAIR’s 2010 Election Report¸pp. 33, 27, 60)

Texas Lawmakers File Immigration Enforcement Bills

Last week, Texas lawmakers filed immigration enforcement bills in both the state House and Senate.

In the state House, Representative Debbie Riddle introduced H.B. 17, which creates a new misdemeanor offense:  criminal trespass by an illegal alien.  (TX H.B. 17 § 1)  A person commits this offense if he or she is a non-U.S. citizen and “enters or remains on or in any public or private property” in Texas in violation of federal immigration law prohibiting entry or re-entry into the U.S. by an illegal alien.  (Id.; INA §§ 275-276) The bill also authorizes police to make a warrantless arrest of an individual if: 1) the arresting officer has probable cause to believe that an individual has committed criminal trespass as defined above; 2) the officer has reasonable suspicion that the person is committing or has committed a separate offense under which the officer may arrest the person without a warrant; and 3) U.S. Immigrations and Customs Enforcement (ICE) confirm that the person is in the country illegally. (TX H.B. 17 § 2)

Rep. Riddle, whose bill is only one of about 15 immigration-related bills already filed in Texas for the upcoming legislative session, camped out at the state Capitol for 36 hours straight to ensure that her bill was one of the first in line.  (statesman.com, Nov. 8, 2010; The Texas Tribune, Nov. 9, 2010) “I would have waited a month if I had to do so,” said Riddle.  (The Texas Tribune, Nov. 9, 2010)

In the state Senate, Senator Dan Patrick (R-Houston), filed an Arizona-style companion bill to Rep. Riddle’s legislation.  Sen. Patrick’s bill, S.B. 126, mandates that police “inquire into the lawful presence of any person who is lawfully stopped, detained, or arrested on other grounds if the officer has reasonable suspicion to believe the person has violated a criminal provision of the federal immigration laws.” (TX S.B. 126 § 1(a); INA §§ 275-276) If the officer has probable cause to believe that the person violated federal immigration law by entering or re-entering the country illegally, the officer may elect to arrest the person.  (TX S.B. 126 § 1(b)(1); INA §§ 275-276) The officer must also identify and report the person to ICE following the arrest.  (TX S.B. 126 § 1(b)(2))

If the immigration enforcement measures are passed, they will go to recently re-elected Gov. Rick Perry’s desk for him to either sign or veto.  Although Gov. Perry opposed the Department of Justice lawsuit against Arizona, he has also said that the Arizona law “would not be the right direction for Texas.” (See FAIR’s 2010 Election Report at pp. 158; The Hill, Apr. 30, 2010) Last week, Perry said that his view on SB 1070 has not changed in light of the bills filed by the Texas lawmakers, but declined to “take the bait” and declare that he would veto specific legislation.  (The Associated Press, Nov. 9, 2010) Instead, Perry said, “[W]e’ll go through the process” when the Legislature convenes in January. (Id.)

Guatemalan President Seeks Temporary Protected Status for Citizens

Guatemalan President Alvaro Colom plans to meet with President Obama in early December to request temporary protected status (TPS) for Guatemalan citizens temporarily in the United States. (Border Report¸ Nov. 11, 2010; guatemalatps.info¸ Nov. 13, 2010) Earlier this year Tropical Storm Agatha swept through the country causing landslides and flooding, as well as killing over 120 Guatemalans and leaving tens of thousands in shelters.  (BBC News, June 1, 2010) Because of the damage, President Colom and several Guatemalan immigrant organizations are calling on President Obama to permit those Guatemalans currently in the U.S. the ability to stay in America through TPS.

In fact, the National Coalition of Guatemalan Immigrants is distributing a document which includes the White House phone number to encourage people to call the White House and pressure it about the granting of TPS to Guatemalans. (Border Report¸ Nov. 11, 2010) Marcos Yax, president of the organization, said, “We call upon the population, our allies, and those to whom we furnish this information, to pressure the White House, including our officials.” (Id.) Another organization, Red por la Paz y el Desarrollo de Guatemala, is circling a petition on the internet in support of granting TPS to Guatemalan citizens.  (T.P.S. for Guatemala, Nov. 13, 2010) On its website to sign the petition, the organization claims, “Granting TPS to Guatemalans does not correct the underlying injustice in economic and immigration policies, but is an acknowledgement of the enormous humanitarian crisis caused by tropical storm Agatha.” (Id.)

TPS is granted to citizens of designated countries who are temporarily unable to return to their home countries because of political, environmental or other extraordinary and temporary conditions. (Border Report¸ Nov. 11, 2010) For example, the Secretary of Homeland Security may designate a country for TPS due to temporary conditions such as a civil war or earthquake or hurricane. (USCIS Website, Nov. 13, 2010) During the designated TPS period, eligible individuals may lawfully live and work in the United States—even if the alien was illegally present in the United States.  (Id.) While TPS status does not automatically lead to legal permanent residency, most administrations have extended TPS designations for years, well beyond the time period reasonable for allowing aliens to return safely to their home countries.  (Id.) Currently, the U.S. has designated the following countries for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, and Sudan.  (Id.)