WEEKLY IMMIGRATION REPORT, MAY 10, 2016: Aliens Cost More than Retirees Get from Social Security

From the Federation for American Immigration Reform

  • UAMs Cost Taxpayers More Than Retirees Receive From Social Security
  • Grassley Questions ICE’s Commitment to Cooperation with Local Police
  • Congressman Gosar Introduces Bill to Stop Obama’s Central American Amnesty Program
  • IRLI Defends American Workers Harmed by Unlawful Guestworker Program
  • 9th Circuit Court Upholds Arizona’s Identity Theft Law
  • Louisiana House Advances Anti-Sanctuary Bills

UAMs Cost Taxpayers More Than Retirees Receive From Social Security

Unaccompanied alien minors (UAMs) and family units continue to surge across the border illegally at rates similar to summer 2014 record levels. The latest statistics from U.S. Customs and Border Protection (CBP) reveal that, in March, Border Patrol apprehended 4,240 UAMs — most from Central America — plus 4,452 family units. (FAIR Legislative Update, May 3, 2016) These numbers reflect a significant increase compared to last year (where approximately 40,000 UAMs were apprehended) and are now on pace to exceed the 2014 peak of 69,000 UAMs. (See CBP UAM Apprehension Statistics) Now, border officials are expecting 2016 and 2017 numbers to approach 75,000. (Id.) Evidence continues to mount that the Central American UAMs and family units continue crossing the border illegally at record numbers because they know they will get to stay in the U.S. once they arrive. Because of a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, UAMs from Central America cannot be promptly returned to their home countries. (P. Law 110-457) Instead, they receive a “notice to appear” which sets a court date in the future and are then released into the U.S. (FAIR Legislative Update, Dec. 1, 2015) However, illegal aliens refer to them as “permisos,” or free passes, because they give permission to stay in the country while they await their appearance in already backlogged immigration courts. (Id.) Instead of addressing the underlying causes of this illegal migration, President Obama wants to merely throw taxpayer dollars at it. Despite the sustained surge of UAMs and family units the last three years, President Obama has labeled the situation “unexpected urgent refugee and migration needs” and has requested $1.3 billion for Fiscal Year 2017 for his Unaccompanied Children program. (See Center for Immigration Studies, May 2016) The cost to American taxpayers of reuniting illegal aliens with the children they left behind is substantial. Indeed, the Center for Immigration Studies (CIS) calculates that each of the estimated 75,000 individual UAMs will cost taxpayers $17,643, which is more than double the cost from Fiscal Year 2010. (Id.) By comparison, the average Social Security retirement benefit an American citizen receives is $14,772, or nearly $3,000 less. (Washington Examiner, May 2, 2016)

Grassley Questions ICE’s Commitment to Cooperation with Local Police

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) is asking the Obama administration why it has not expanded a program that enhances the federal government’s ability to enforce immigration laws through partnership with willing state and local law enforcement agencies. (Grassley Press Release, May 5, 2016) Grassley’s request comes after the administration announced the release of nearly 20,000 criminal aliens over the past year and a dramatic drop in deportations. (Id.; see FAIR Legislative Update, May 3, 2016) Specifically, data recently released by the Senate Subcommittee on Immigration and the National Interest reveal that the administration removed fewer illegal aliens in 2015 than in any of the previous seven years. (Grassley Press Release, May 5, 2016; Sessions Press Release, May 2, 2016) To explain the sharp decline, officials cite “limited resources,” although in reality, funding for removals and detention has increased, and federal authorities can enlist the help of state and local law enforcement to augment their ranks. (Grassley Press Release, May 5, 2016) Importantly, the federal government has the ability to enlist the help of state and local law enforcement to assist in the enforcement of our immigration laws. Known as 287(g) agreements, after the authorizing provision in the Immigration and Nationality Act, this program allows Immigration and Customs Enforcement (ICE) officials to enter into agreements with state and local law enforcement agencies to “deputize” state and local officers as immigration agents within their jurisdiction. Any state or local law enforcement agency can request to enter into a partnership with ICE to help enforce immigration laws through the 287(g) program, however, the Obama administration stopped renewing “task force model” agreements in 2013, effectively gutting the program. (See FAIR Legislative Update, Dec. 31, 2012) Remarkably, at a recent House Committee on Oversight and Government Reform hearing, ICE Director Sarah Saldaña testified that she wants to expand the use of the 287(g) program and has “begged” state and local law enforcement agencies not to withdraw from it. (Id.; see FAIR Legislative Update, May 3, 2016) However, the Department of Homeland Security (DHS) has allowed applications in the program to lag for years, and has outright denied some requests by agencies that were interested in participating. (Grassley Press Release, May 5, 2016) In his letter to Saldaña, Grassley is asking for details on what the administration is doing to prevent state and local law enforcement agencies from leaving the 287(g) program. (Id.) He is also seeking information on agencies that have applied for the program and the status of those applications. (Id.) “The Department of Homeland Security should enter into more 287(g) agreements, under both the jail and task force models, and should, to the greatest extent possible, encourage jurisdictions to apply,” Grassley wrote. (Id.) Grassley’s letter can be found here.

Congressman Gosar Introduces Bill to Stop Obama’s Central American Amnesty Program

Congressman Paul Gosar (R-AZ) recently introduced legislation that will stop President Obama’s backdoor amnesty program known as the Central American Minors (CAM) Refugee/Parole Program. Gosar’s bill, the “Central American Amnesty Termination Act of 2016” is straightforward: the legislation prohibits the use of any federal funds to “implement, administer, or carry out” the CAM program or “any successor program.” (H.R. 5141) In an extensive “findings” section, Gosar points out that CAM recipients receive cash, loans for flights, medical assistance, and most importantly are put on a path to citizenship. (Id.) President Obama announced the CAM program in November 2014 and fully implemented it in February 2015, supposedly to stop the surge of unaccompanied alien minors (UAMs) from Central America from crossing the southern border unlawfully. (See FAIR Legislative Update, Nov. 18, 2014; FAIR Legislative Update, Feb. 18, 2015) Under the CAM program, the federal government has offered to grant either refugee or parole status to children and adults from Guatemala, Honduras, or El Salvador when a “qualifying parent” who is “lawfully present” in the U.S. files an application for refugee status on behalf of their child currently living in one of those countries. (USCIS CAM Guidelines) The guidelines provide that a “qualifying parent” may be an alien with (1) permanent resident status; (2) temporary protected status; (3) parole (after one year); (4) deferred action (after one year); (5) deferred enforced departure; or (6) withholding of removal. (Id.) Importantly, these categories cover illegal aliens granted amnesty through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), as well as the President’s other backdoor amnesty policies. (FAIR Legislative Update, Feb. 18, 2015) This means that the Obama administration unilaterally created a program to allow illegal aliens to use the laws of the United States governing refugees and parole to bring in their relatives living outside the U.S. Granting refugee or parole status to Central Americans through this program contradicts federal law. (See FAIR’s Johnson Memos Anniversary Update, Nov. 20, 2015 at 12-13) Section 101 of the Immigration and Nationality Act (INA) defines a refugee as a person “who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Moreover, legal opinions make it clear that poverty and crime are not sufficient grounds for granting refugee status. Similarly, granting parole en masse to relatives of illegal aliens in the U.S. stretches “humanitarian parole” far beyond its statutory definition in INA Section 212 as allowing the entry of an alien on a temporary, case-by-case basis, and “for urgent humanitarian reasons or significant public benefit.” (INA § 212(d)(5)(A)) More than 8,000 aliens have already applied for the CAM program, the U.S. has already admitted 197 Central American aliens through the program, and more applications and admissions are expected. (See Gosar Press Release, Apr. 29, 2016) In a press release announcing the introduction of his bill, Rep. Gosar blasted the Obama administration for bypassing Congress and unilaterally implementing CAM. “Article 1, section 8, of the Constitution gives Congress clear jurisdiction on immigration matters and the creation of the CAM program by executive action clearly infringes on that authority,” declared. Rep. Gosar. (Id.) “Surely, our Founding Fathers are rolling over in their graves at the thought of the Obama Administration flying illegal aliens from Central American countries to the United States, allowing them to work and putting them on the path to citizenship.” (Id.) The bill has 21 original cosponsors: Brian Babin (R-TX); Lou Barletta (R-PA); Diane Black (R-TN); Dave Brat (R-VA); Mo Brooks (R-AL); Scott DesJarlais (R-TN); Jeff Duncan (R-SC); Louie Gohmert (R-TX); Glenn Grothman (R-WI); Tim Huelskamp (R-KS); Walter Jones (R-NC); Steve King (R-IA); Kenny Marchant (R-TX); John Mica (R-FL); and Steve Palazzo (R-MS). FAIR supports H.R. 5141.

IRLI Defends American Workers Harmed by Unlawful Guestworker Program

On Wednesday, May 3, 2016, an attorney with the Immigration Reform Law Institute (IRLI), the legal arm of FAIR, argued before the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) in a lawsuit it brought to challenge a U.S. Department of Homeland Security (DHS) rule that unlawfully permits aliens who were admitted on a nonimmigrant F-1 student visa to re­main in the United States and work after graduation (known as the Post Completion Optional Practical Training (OPT) program). Under statutory law, these former students are required to leave the country immediately after they graduate and in no way is DHS authorized to give them work permits. IRLI represents the Washington Alliance of Technology Workers (Washtech), a labor union of American technology workers who have been forced to compete with these aliens for scarce tech jobs. The three-judge panel of the DC Circuit heard argument from both IRLI and a U.S. Department of Justice (DOJ) lawyer. Most of the questions posed to IRLI’s attorney focused on a technical jurisdictional issue. Specifically, the court was concerned that it lacked jurisdiction to hear the appeal because it seemed that the district court had never entered a final judgment below after remanding the unlawfully promulgated rule to DHS for a possible fix. IRLI argued that the appeal was not early because the district court had disposed of all issues through summary judgment and there was nothing more for the lower court to do. Nonetheless, the jurisdictional issue is not fatal even if the DC Circuit finds that it currently lacks jurisdiction to hear the case as Washtech could simply refile its appeal after it requests the district court to clarify its order or enter a final judgment. The questions posed to the DOJ lawyer went to Washtech’s right to bring the case under law and the underlying merits of the OPT rule. First, Judge Kavanaugh stated matter of factly that, under DC Circuit law, Washtech had standing to sue to challenge the rule. “Standing” is required under the U.S. Constitution to maintain a lawsuit in federal court wherein the plaintiff must show that it has been injured by the defendant and the court is capable of fashioning a remedy to fix the injury. Under grilling from Judges Millet and Kavanaugh, DOJ would not concede Washtech’s standing and went so far to state even if an employer were to place a job ad stating, “OPT applicants only, US citizens need not apply” American workers would still not have standing to sue. The question posed by the judges was not a hypothetical situation as Washtech had produced the existence of such an ad as evidence in the case. Regarding the heart of the case, that is, the lawfulness of DHS’s OPT program, the judges seemed very skeptical. The court aggressively questioned DHS which argued that an alien who had entered the country on a student visa but had graduated could still be classified as a “student” despite the law clearly requiring that only persons attending an academic institution be classified as a “student.” Judge Kavanaugh quipped that calling a person with a full-time job and who is not attending school a “student” makes “hash” of the term “student.” DOJ argued that the limitations on a student visa are merely entry requirements and that it had the authority to allow aliens to stay and work even though they are not in school as the terms of the visa require. Judge Millet quickly saw through the argument and inquired that if this is so then why does the law require schools to report aliens when they drop out of school. Judge Kavanaugh, with an incredulous glance, called DOJ’s theory an “interesting statutory interpretation.” DOJ’s theory is inconsistent with law and totally undermines all the labor protections written into immigration law for the American worker. In reference to the hearing, Dale L. Wilcox, IRLI’s Executive Director, commented, “The importance of this appeal cannot be overstated as the jobs of millions of American college graduates and workers still remain at risk as the Obama Administration has recently revived the job-stealing rule that IRLI successfully challenged last year. IRLI will continue the fight in court for the American worker and hold the Obama Administration accountable to the rule of law.” IRLI expects an opinion within the next couple of months. (IRLI Press Release, May 3, 2016)

9th Circuit Court Upholds Arizona’s Identity Theft Law

In a unanimous decision, the 9th Circuit Court of Appeals upheld an Arizona law that made it a crime to steal someone’s identity for the purpose of obtaining employment. (Courthouse News Service, May 2, 2016) In Puente Arizona v. Arpaio, a three-judge panel found that criminalizing employment-related identity fraud fell squarely within the state’s police powers. (Puente Arizona, et al. v. Arpaio et al., case number 15-15211, in the U.S. Court of Appeals for the Ninth Circuit) The Arizona Legislature passed House Bill (HB) 2745 in 2008 to address the growing problem of employment related identity theft in the state, committed primarily by illegal aliens seeking to work illegally in the United States. (Washington Times, May 2, 2016) At the time of its passage, Arizona had the highest rate of identity fraud in the country. (Id.) Illegal alien advocacy groups challenged the measure, arguing that federal immigration law regulating employment authorization in the United States preempted the legislation. (Puente Arizona, et al. v. Arpaio et al.) The 9th Circuit upheld the Arizona law, reasoning that it was a valid exercise of state police power because by it applied equally to citizens, immigrants, and illegal aliens. (Id.) The court reasoned that the law also addresses employment-related identity fraud in cases unrelated to immigration. (Id.) “Just because some applications of those laws implicate federal immigration priorities does not mean that the statute as a whole should be struck down,” Circuit Judge Richard C. Tallman wrote. (Id.) “[T]hese laws could easily be applied to a sex offender who uses a false identity to get a job at a daycare center. Or the laws could be applied to stop a convicted felon from lying about his criminal history on a job application for a position of trust… Congress could not have intended to preempt the state from sanctioning crimes that protect citizens of the state under Arizona’s traditional police powers without intruding on federal immigration policy. Thus, we hold that despite the state legislative history, Congress did not intend to preempt state criminal statutes like the identity theft laws.” (Id.) HB 2745 is not the first Arizona law addressing illegal immigration to be upheld by the courts. In 2011, the Supreme Court of the United States upheld Arizona legislation requiring all employers to use E-Verify to confirm that newly hired employees are authorized to work in the United States. (Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011)) Additionally, the Supreme Court in 2012 upheld portions of Arizona’s Senate Bill (SB) 1070, which requires Arizona state and local law enforcement to verify the citizenship or immigration status of an individual who has been lawfully stopped, detained, or arrested, if there is reasonable suspicion to believe the individual is in the country illegally. (Arizona v. United States, 132 S. Ct. 2492, 2504 (2012)) Although the 9th Circuit’s opinion allows HB 2745 to be implemented, the U.S. District Court for the District of Arizona must still evaluate whether the legislation is preempted by federal law in its application or if the legislation violates equal protection.

Louisiana House Advances Anti-Sanctuary Bills

By overwhelming majorities, on May 4 the Louisiana House of Representatives passed a pair of bills aimed at eliminating sanctuary cities in the Pelican State. Sanctuary policies may be written or unwritten ordinances, resolutions, executive actions, or initiatives that prohibit law enforcement from inquiring, acting on, or reporting on an individual’s immigration status. Some go so far as to completely obstruct any law enforcement or local government cooperation with federal immigration officials whatsoever. The House passage of these critical bills paves the way for the Louisiana Senate to take them up. HB 1148, authored by Representative Valarie Hodges, prohibits state or local governments with sanctuary policies from borrowing any money from the state for new infrastructure projects, and bans state funds from being spent on the implementation or enforcement of sanctuary policies. HB 453, authored by Representative Jay Morris, allows victims of crimes committed by illegal aliens released by sanctuary cities to sue the city or parish with such policy. Louisiana Attorney General Jeff Landry, whose office would be integral to enforcing the measures, has praised the legislative efforts. “I applaud the House of Representatives for passing HB 1148 and HB 453, common-sense bills that uphold the rule of law and get justice for victims of crime,” Attorney General Landry said via press release. “Sanctuary cities encourage further illegal immigration, undermine anti-terrorism efforts, and sabotage the fisc. They also waste much-needed public resources as they force the federal government to find and arrest deportable criminals already taken into custody by local law enforcement,” he continued. (Id.) It is unclear what the fate of the bills will be if and when they pass the Senate. In particular, spokesman for Governor John Bel Edwards said the governor feels HB 1148 is “overly expansive.” He told reporters in an email, “[The Governor is] not opposed to it, but has some concerns that he hopes can be worked out.” (Southwest Daily News, May 5, 2016) Stay tuned to FAIR for the latest updates…]]>