Immigration Reform News and Impact on US Homeland Security Sept 24, 2012

Right Side News reports from the Federation for American Immigration Reform on:

Administration: Deferred Action Beneficiaries Ineligible for Subsidized Healthcare;
House Rejects Granting More Green Cards to STEM Grads, Eliminating Visa Lottery;
Core of SB 1070 Finally Takes Effect;
California Dems Urge Governor Brown to Sign Anti-Detainer Legislation;
ICE Rescinds 287(g) Program in North Carolina Following DOJ Report;

Administration: Deferred Action Beneficiaries Ineligible for Subsidized Healthcare

In a regulation quietly issued by the Department of Health and Human Services (HHS) last month, the Obama Administration ruled that illegal aliens granted deferred action under its June 15 memorandum would not be eligible for taxpayer-subsidized healthcare under the Patient Protection and Affordable Care Act. (See Fed. Reg. Vol. 77, No. 169, Aug. 30, 2012; see also New York Times, Sept. 17, 2012)

The Administration accomplishes this goal by reversing previously issued regulations on the Affordable Care Act that included illegal aliens with deferred action in the definition of “lawfully present.” (See 45 C.F.R. 152.2) Accordingly, the new definition of “lawfully present” that excludes illegal aliens with deferred action will bar the wave of illegal aliens benefiting from the backdoor amnesty initiative from participating in the core of the new health care law. (Id.; see also 45 C.F.R. 155.20, 26 C.F.R. 1.36B-(g))

In the regulation, HHS Secretary Kathleen Sebelius explained that granting the June 15 deferred action recipients subsidized health care would be outside the scope of the Department of Homeland Security’s (DHS) rationale for enacting the amnesty for illegal aliens up to the age of 31. The regulation reads:

As DHS has explained, the DACA [Deferred Action for Childhood Arrivals] process is designed to ensure that governmental resources for the removal of individuals are focused on high priority cases, including those involving a risk to public safety, and not on low priority cases… As it [] would not be consistent with the reasons offered for adopting the DACA process to extend health insurance subsidies under the Affordable Care Act to these individuals, HHS is amending its definition of ‘lawfully present’…[so that the] rule does not inadvertently expand the scope of the DACA process. (See Fed. Reg. Vol. 77, No. 169 at p. 52615)

Citing the same reasoning, in a separate letter issued by HHS to health officials in each state two days earlier, the Administration also announced its decision not to extend Medicaid or Children’s Health Insurance Program (CHIP) benefits to illegal aliens receiving deferred action under the June 15th memo. (Read letter here)

White House spokesman, Nick Papas, said the deferred action policy “was never intended” to confer eligibility for federal health benefits. (New York Times, Sept. 17, 2012) However, this did not stop the open borders lobby from chastising the Administration for its decision. “We do not understand why the administration decided to do this. It’s providing immigration relief to children and young adults so they can be fully integrated into society. At the same time, it’s shutting them out of the health care system so they cannot become productive members of society,” said Jennifer M. Ng’andu, a health policy specialist at the National Council of La Raza. (Id.) Similarly, Marielena Hincapié, the executive director of the National Immigration Law Center, called the regulation “shortsighted, reactionary and bad public policy.” (Id.)

The regulation—which can be amended or rescinded by the Administration at any time—comes just two months before November’s presidential election. A recently released Rasmussen poll demonstrates that Americans overwhelmingly disapprove of granting public benefits to illegal aliens. (Rasmussen Poll, 81% Think Government Aid Recipients Should be Required to Prove Legal Residency, Sept. 18, 2012)

House Rejects Granting More Green Cards to STEM Grads, Eliminating Visa Lottery

One day before Congress recessed to campaign for the November elections, the U.S. House of Representatives voted down H.R. 6429, a bill that would eliminate the visa lottery green card program and reallocate those 55,000 green cards to aliens with PhDs or Master’s degrees in STEM fields (Science, Technology, Engineering, and Mathematics) from U.S. universities. (See H.R. 6429; see also FAIR Legislative Update, Sept. 17, 2012) House Leadership placed the bill on the Chamber’s suspension calendar Thursday, which requires a two-thirds vote of the House to pass legislation.  However, the final vote on the bill was 257 to 158. (See Roll Call Vote #590)
H.R. 6429 would have granted these foreign graduates by creating two new employment-based green card categories, EB-6 and EB-7. (See H.R. 6429 at §2)  Those with Master’s degrees (EB-7) would have been granted a green card only after all qualifying PhD petitions (EB-6) have been granted. (Id.)  The legislation also would have created a new non-immigrant student visa category specifically for foreign students seeking to study in a STEM field and potentially seek an EB-6 or EB-7 green card in the future. (See H.R. 6429 at §5) While statutorily the provision was intended to get around the current requirement that foreign students declare they intend to return to their country of residence upon graduating, it had the potential to increase competition for American students studying in STEM fields, as universities benefit significantly from admitting foreign students who pay full tuition rates. (See INA § 101(a)(15)(F))

Technological and business industries lobbied hard for the bill’s passage, but were unable to overcome House Democrats’ efforts to defeat the bill. (See Judiciary Committee Press Release, Sept. 19, 2012) Arguing it is morally wrong to eliminate the visa lottery, the Congressional Hispanic Caucus, Congressional Black Caucus, and Congressional Asian Pacific American Caucus urged Members in a “Dear Colleague” letter to oppose the STEM legislation. Eliminating the visa lottery “would actually make things worse,” the letter read. “This program serves as a narrow but key path of legal immigration for residents of nations with historically low rates of immigration to the United States, such as African nations whose residents were issued approximately 50 percent of such visas in recent years,” it continued. (CQ Today, Democratic Opposition Mounts to House GOP’s High-Tech Visa Legislation, Sept. 19, 2012)

Created in 1995, the intent of the visa lottery was to increase the diversity of America’s immigrant population by allowing a lottery for individuals from nations with low rates of immigration into the U.S.  (Government Accountability Office (GAO) Report, Sept. 2007)  However, admission has no relation to whether the applicants for green cards have any skills that would help them contribute to American society.  Since the creation of the visa lottery, hundreds of thousands of aliens – including those from countries listed as State Sponsors of Terrorism—have been allowed visas and legal permanent resident status in the U.S.  (Press Release, July 20, 2011; GAO Report, Sept. 2007)  As part of the 2011 lottery program, 1,842 Iranians, 553 Sudanese, and 32 Syrians were issued green cards.  (Press Release, July 20, 2011)

While rejecting the STEM bill, the House passed two other pieces of legislation aimed at protecting U.S. borders.  The first bill, the Border Security Information Improvement Act (H.R. 6368), was introduced by Rep. Francisco Canseco (R-TX). Passing by voice vote, it directs the Departments of Justice (DOJ) and Homeland Security (DHS) to report to Congress on cross-border violence along the Southwest border. Specifically, the legislation requires DOJ and DHS to report on: the federal government’s ability to track, investigate, and quantify cross-border violence; current steps being taken to address cross-border violence; information and data currently being collected on cross-border violence;  and additional resources needed to successfully track, investigate, quantify, and report on cross-border violence.
The second piece of legislation, the Countering Iran in the Western Hemisphere Act (H.R. 3783) was introduced by Rep.  Jeff Duncan (R-SC). It also passed via voice vote and requires the Secretaries of State and Homeland Security to develop a plan to secure the U.S. borders with Canada and Mexico and prevent operatives from terrorist and other organizations from entering the United States.

The border bills now go to the Senate for action. Both chambers are scheduled to be in recess until after the November elections take place.

Core of SB 1070 Finally Takes Effect

Ending a two-year legal battle, Arizona law enforcement officers began enforcing the core provision of the state’s immigration enforcement law, SB 1070, last week after federal district court Judge Susan Bolton officially lifted her injunction on it. (Fox News Latino, Sept. 18, 2012)

The provision of SB 1070 that is now in effect is Section 2(B), which requires law enforcement officers to verify the immigration status of those they reasonably suspect to be in the country illegally during a lawful stop, detention, or arrest. (See Section 2(B))
Judge Bolton’s order comes in response to the U.S. Supreme Court’s June ruling upholding the provision. Arizona Gov. Jan Brewer, who fought arduously for the law, expressed her delight in the provision finally taking effect.   “[T]oday is the day we have awaited for more than two years: the injunction against the heart of SB 1070 has been lifted … [it] is truly an important day for Arizona and supporters of the rule of law,” she said in a written statement. (Gov. Brewer Press Release, Sept. 18, 2012)

Also in accordance with the Supreme Court ruling, Judge Bolton’s order permanently enjoined Sections 3 (alien registration), 5(C) (work solicitation), and 6 (warrantless arrest), of the law from taking effect.  Nonetheless, the amnesty lobby, who filed another lawsuit aimed at Section 2B, vowed not to rest until that is also struck down. “Section 2B of SB 1070 threatens fundamental rights of Latinos and other people of color in Arizona,” said Linton Joaquin, general counsel of the National Immigration Law Center. “We are committed to fighting this law until it is permanently stricken. We look forward to finally having our civil rights claims addressed in court.” (ACLU of Arizona Press Release, Sept. 14, 2012)

California Dems Urge Governor Brown to Sign Anti-Detainer Legislation

House Minority Leader Nancy Pelosi led a group of 21 House Democrats who sent a letter to California Governor Jerry Brown last week, urging him to sign the TRUST Act.  (Pelosi letter, Sept. 13, 2012) Passed by the California legislature in August, AB 1081 requires state and local law enforcement agents to ignore U.S. Immigration and Customs Enforcement (ICE) detainers unless the alien has been convicted of a “serious” or “violent” felony.

In the letter, Ms. Pelosi suggested that it was flat-out wrong to identify and deport illegal aliens who are booked in jails.  Ignoring the fact that such aliens are illegally in the U.S., she argues that current efforts to remove them from jails are wrong because some illegal aliens have not actually been convicted of a crime and others only been convicted of “minor offenses.”  (Pelosi letter, Sept. 13, 2012)  To deport illegal aliens in such cases, she wrote, “erodes trust between local communities and law enforcement.”  (Id.)

Ms. Pelosi also argues that because AB 1081 allows California law enforcement officials the discretion to honor ICE detainers when an alien is actually convicted of a “serious” or “violent” felony, it is still consistent with the Obama Administration’s deportation priorities.  (Id.)  But ICE officials have quietly disavowed AB 1081, indicating that even the Obama Administration will not support a state policy that allows law enforcement officials to ignore ICE detainers.  In a letter to FAIR, ICE Director John Morton wrote that jurisdictions that ignore ICE detainers “are undermining public safety in their communities by exposing their communities to risks from convicted sex offenders, weapons violators, drunk drivers, and other violent criminals. These are not hypothetical risks.” (Morton letter, Aug. 28, 2012)

The threat to public safety is the same reason the California Sheriffs Association is “vehemently” opposed to AB 1081. (See FAIR Legislative Update, Sept. 4, 2012) This threat is especially severe with AB 1081, because even in cases where an alien has been convicted of a serious or violent felony, the bill allows California law enforcement agents to ignore ICE detainers if they so desire.  Under California law, serious and violent felonies include:

• Murder or voluntary manslaughter; 
• rape;
• sodomy by force;
• lewd or lascivious act on a child under 14 years of age;
• any felony punishable by death or imprisonment in the state prison for life;
• any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm;
• attempted murder;
• assault with intent to commit rape or robbery;
• assault with a deadly weapon or instrument on a peace officer;
• arson;
• exploding a destructive device or any explosive causing bodily injury, great bodily injury,
• exploding a destructive device or any explosive with intent to murder;
• any burglary of the first degree;
• robbery or bank robbery;
• kidnapping;
• holding of a hostage by a person confined in a state prison;
• attempt to commit a felony punishable by death or imprisonment in the state prison for life;
• any felony in which the defendant personally used a dangerous or deadly weapon;
• selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, or any of the precursors of methamphetamines,
• grand theft involving a firearm;
• carjacking;
• throwing acid or flammable substances, in violation of Section 244;
• assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;
• assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;
• discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
• commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
• continuous sexual abuse of a child, in violation of Section 288.5;
• shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;
• intimidation of victims or witnesses, in violation of Section 136.1;
• criminal threats, in violation of Section 422;
• any attempt to commit a crime listed in this subdivision other than an assault;
  (See Cal Pen Code § 1192.7(c)(Serious Felonies); see also Cal Pen Code § 667.5(c) (Violent Felonies))

Thus, if Governor Brown signs  AB 1081, instead of being required to transfer custody of aliens convicted of these heinous crimes to the federal government when ICE issues a detainer, state and local officials will have the authority to release them back out onto the streets.  ICE statistics show that in 2012 to-date, the federal government has already deported over 20,000 criminal aliens from California.

AB 1081 now sits on Governor Brown’s desk waiting either his signature or veto.  If Governor Brown does nothing by September 30th, the bill will automatically become law.  FAIR has urged its members and activists both nationwide and in California to call Governor Brown and urge him to veto AB 1081.

ICE Rescinds 287(g) Program in North Carolina Following DOJ Report

Last week, the Obama Administration continued its attack on the 287(g) program by rescinding its memorandum of agreement with Alamance County, North Carolina. (Boston Globe, Sept. 19, 2012; see also FAIR Legislative Update, Feb. 21, 2012) U.S. Immigration & Customs Enforcement (ICE) officials rescinded the agreement following the release of a report by the U.S. Department of Justice (DOJ) alleging that the Alamance County Sheriff’s Office discriminated against Latinos. (See DOJ Report, Sept. 18, 2012) 287(g) is a federal-state partnership program that trains and authorizes local law enforcement officers to identify illegal aliens and detain them on behalf of ICE. (See DHS 287(g) Fact Sheet, Aug. 31, 2012)

According to allegations in the DOJ’s report, the Alamance County Sheriff’s Office used its power to “unlawfully [target, stop, detain, and arrest] Latinos” in violation of the fourth and fourteenth amendments. (See DOJ Report at p.2) Specifically, the report claims Alamance County deputies purposefully positioned traffic checkpoints near Latino communities, frequently used derogatory language to refer to Latinos, and were generally four to ten times more likely to pull over Latino drivers than non-Latino drivers. (Id. at p.3)

In response to the DOJ’s allegations, ICE immediately rescinded 287(g) immigration enforcement authority from Alamance County law enforcement officials. (Boston Globe, Sept. 19, 2012) DHS “is troubled by the Department of Justice’s findings” said DHS spokeswoman Barbara Gonzales, and “[a]ccordingly, and effective immediately, U.S. Immigration and Customs Enforcement is terminating [Alamance County Sheriff’s Office’s] 287(g) jail model agreement.” (FOX News Latino, Sept. 20, 2012) According to Gonzales, ICE efforts in Alamance will focus solely on illegal aliens accused of serious crimes, recent border crossers, repeat immigration law violators, and employers who knowingly hire illegal aliens. (Id.)

Alamance County Commissioners protested ICE’s decision, arguing that the Obama Administration is exercising a political agenda and falsely slandering the Alamance County Sheriff, Terry Johnson. (NewsTimes, Sept. 20, 2012) Sheriff Johnson strongly denied the DOJ’s charges against him and his department, stating in a release that his office has “never discriminated against Spanish speaking persons in any way, shape or form,” and instead insisted that “the [Obama] administration has decided to continue to wage war on local law enforcement.” (Alamance County Sheriff’s Office Press Release, Sept. 18, 2012) According to County Commissioner Tom Manning, ICE gave Alamance County high marks on its operation of the 287(g) program in the past. (NewsTimes, Sept. 20, 2012)

Alamance County is not the first law enforcement agency to have its 287(g) agreement rescinded by the Administration. This summer, immediately after the U.S. Supreme Court upheld the core provision of SB 1070—allowing law enforcement officials the ability to verify the immigration status of those they lawfully stop, arrest, or detain and reasonably suspect to be in the country illegally—the Obama Administration rescinded all of the task force model agreements in the State of Arizona. (See FAIR Legislative Update, July 3, 2012