U.S. Legislative Immigration Update August 9, 2010

Right Side News Reports from the Federation for American Immigration Reform in this August 9, 2010 Legislative Weekly

• Virginia Officials Address Immigration Enforcement in Wake of Fatal Crash
• House, Senate Pass Competing Border Security Bills Before Recess
• ICE Union Takes Unanimous Vote of No Confidence in Leadership
• Republican Leaders Voice Support for Re-Examining Birthright Citizenship

Virginia Officials Address Immigration Enforcement in Wake of Fatal Crash

Governor Bob McDonnell is negotiating an agreement with Immigration and Customs Enforcement (ICE) that would allow state troopers to enforce immigration law through the 287g program, which has already been implemented in a few Virginia counties.  Through 287g, Immigration and Customs Enforcement (ICE) trains local officers in immigration enforcement.  (Fox News, August 4, 2010).  “I think there’s just a frustration that, overall, our system isn’t working.  I think what most citizens of Virginia want is to have the rule of law enforced,” said McDonnell.  (The State Column, August 6, 2010).  If Virginia strikes a deal with ICE, it would join Alabama, Arizona, Colorado, Georgia, Florida, Minnesota, Rhode Island and Tennessee in extending the program to state police. 

McDonnell’s effort to expand the statewide program comes on the heels of the legal opinion issued by Virginia Attorney General Ken Cuccinelli at the request of Republican Virginia Delegate Bob Marshall.  The opinion stated that Virginia police officers can check the immigration status of anyone they stop or arrest.  “It is my opinion that Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested.”  (CNN, August 4, 2010).  Cuccinelli explained that his legal opinion was simply a clarification of the law rather than a new policy, because Virginia allows state law enforcement to check immigration status but does not require it.  (Fox News, August 4, 2010).  Cuccinelli told CNN that in “any legitimate police stop,” — for criminal or traffic reasons — “law enforcement is allowed to ask about other subjects.  And our opinion addressed the fact that they can ask about illegal immigration, immigration status, along with anything else.” (CNN, August 4, 2010). 

When asked whether his opinion means that stopped motorists must present documentation, Cuccinelli pointed out, “[I]t is a requirement under our federal immigration law that those who are not citizens carry evidence, meaning their papers, indicating their legal status.  So if someone is not a citizen, they should have papers indicating their legal status. If they do not, they’re violating federal law, and that is a criminal violation.”  (CNN, August 4, 2010).  He added that if a police officer can determine someone is in the country illegally at the time of the stop, it provides grounds for arrest.

Amnesty proponents are outraged by Cuccinelli’s advisory opinion, and the American Civil Liberties Union (ACLU) of Virginia is warning police officers to disregard the ruling.   (Fox News, August 5, 2010).  The ACLU sent a letter to Virginia police chiefs across the state saying that the opinion is legally flawed and should be ignored, but it seems Virginia law enforcement agencies are ignoring the ACLU, according to Dana Schrad, executive director of the Virginia Association of Chiefs of Police.  Del. Bob Marshall, who requested the opinion from Cuccinelli, sent a subsequent letter to the police chiefs and sheriffs. “I cannot understand why the ACLU would encourage law enforcement officers to ignore the attorney general’s opinion.  The attorney general is the highest ranking law enforcement official in Virginia.  The ACLU’s position essentially allows alien terrorists and gang members to be untouchable in this country. We cannot allow this to continue.”  (The Washington Post, August 5, 2010).

Cuccinelli noted that illegal aliens pose a “significant problem” in Virginia, pointing to last week’s fatal car crash as an example.  In that case, an illegal alien driving under the influence of alcohol slammed into a car carrying three nuns, killing Sister Denise Mosier instantly.  The illegal alien, Carolos Montano, had twice been in ICE’s custody following two previous convictions for DUI, in addition to reckless driving, speeding, and public drunkenness.  Both times ICE officials had him in their custody he was released on his own recognizance pending deportation proceedings.  He was just weeks away from a long-delayed deportation hearing when he caused the crash for which he now faces a charge of felony murder.  (The Washington Post, August 6, 2010).

The tragic crash has received national attention, and Homeland Security Secretary Janet Napolitano has ordered an immediate review of his deportation proceedings.   “This is a serious problem,” Cuccinelli said. “It threatens the safety of Virginians, and I know the problem is similar across the country. We’re just taking gradual steps to address it as aggressively as we can.”  Cuccinelli’s office pointed out in a statement that “[a]lthough immigration is politically controversial, the legal principles discussed in the opinion are a matter of settled law and do not break any new legal ground.”  (The Washington Post, August 6, 2010).

House, Senate Pass Competing Border Security Bills Before Recess

Shortly before heading out for summer recess, the House and Senate passed competing emergency spending bill that would bolster security operations along the southern border. (See FAIR’s Legislative Update, August 2, 2010)  The House passed a $701 million dollar security package (H.R.5875), which sparked a partisan point of contention about whether to offset the costs of the increased funding, or to pass a spending bill without paying for it.  House Republicans objected to the fact that only $200 million of the spending was offset, but the bill was passed by a voice vote.  (Congress Daily, July 29, 2010).  

Senate Republicans have also demanded that border security spending be offset, some suggesting the use of unspent stimulus funds.  Last week, Arizona Senators John McCain and Jon Kyl introduced their own border security package which contained deficit neutral offsets from stimulus projects and unspent money from the virtual fence. (S. AMDT. 4582).  Not surprisingly, this drew criticism from Democrats in both the Senate and the House who rejected any use of unspent stimulus funds.  In an unexpected twist of events, Senators Chuck Schumer (D-N.Y.) and Claire McCaskill (D-Mo.) introduced a third border security bill just hours before leaving for August recess last Thursday.  (S 3721).  Schumer’s bill provides $600 million to fund security measures, including 1,500 new enforcement agents and additional unmanned drones along the border.  (The Washington Independent, August 6, 2010).  Providing somewhat of a compromise, the bill includes increases in H-1B and L visa fees for companies that hire these temporary workers that are intended to help offset the cost of the legislation. (CQ Today, Aug. 5, 2010).  

Whether or not Schumer was playing political games by introducing a bill he did not expect to pass, he was certainly caught off guard when Senator McCain announced Republicans would not oppose the unanimous consent agreement.  (Roll Call, August 5, 2010).  Instead of thanking the senators for their support, Schumer withdrew his unanimous consent request as Democratic staff huddled.  However, he then renewed his request, stating, “This bipartisan effort shows we are serious about making the border more secure than ever. Now our attention must turn to comprehensive reform, which is the only way to fully address the problem of illegal immigration.”  Id. 

Amnesty advocates blasted Democrats for pushing the bill through the Senate, saying that Republicans outsmarted Democrats when they called their bluff and agreed to pass the bill.  “It is really unfortunate, misguided and a major political misstep,” said Deepak Bhargava, executive director of the pro-amnesty Center for Community Change. (Politico, August 6, 2010).  Their main objection appears to be that Democrats agreed to a stand-alone bill instead of holding out for “comprehensive” reform. “If the Democrats try to feed the beast of enforcement that Republicans seem to be fixated on, they are never going to satiate that appetite,” said Angela Kelley, vice president for immigration policy and advocacy at the pro-amnesty Center for American Progress. Id.

The Senate passed the measure by unanimous consent and will now send it to the House for consideration.  House aides first indicated the bill would not be taken up, but on Friday the White House endorsed the bill and Homeland Security Secretary Janet Napolitano called for the House to pass it next week.  (Roll Call, August 6, 2010).  She stated that the White House supports the legislation and said, “We would obviously support the House concurring in the Senate package as soon as possible.”  Id. 

ICE Union Takes Unanimous Vote of No Confidence in Leadership

Documents surfaced last week showing that AFGE Council 118 ICE, the union that represents over 7,000 detention and removal agents within Immigration and Customs Enforcement (ICE), issued a vote of no-confidence in ICE Director John Morton and Assistant Director of the ICE Office of Detention and Policy and Planning, Phyllis Coven.  According to a statement issued by the Union, the action reflects “the growing dissatisfaction among ICE employees and Union Leaders that Director Morton and Assistant Director Phyllis Coven have abandoned the Agency’s core mission of enforcing United States immigration laws and enforcing public safety, and have instead directed their attention to campaigning for programs and policies relating to amnesty…”  (AFGE National Council 118 Letter, June 25, 2010). 

In the scathing release, the ICE union also accuses Director Morton and Assistant Director Coven of:

• Dedicating “more time to immigration reforms aimed at large-scale amnesty legislation, than advising the public and Federal lawmakers of the severity of the illegal immigration problem;
•  Misleading the public regarding the effectiveness of the Secure Communities program and using it as a selling point to move forward with amnesty legislation;
• Refusing to alert Congress as to the severity of the problem regarding criminal aliens and to request additional resources to provide better enforcement and support of local agencies;
• Prohibiting the majority of ERO agents from making arrests or enforcing United States immigration laws outside of the institutional (i.e. jail) setting; and
•  Implementing detention reforms that have created a “resort like living conditions to criminal aliens.”

When asked about criticism of him and his agency, Morton was dismissive. “You develop a thick skin in a job like this,” said Morton.  “I’d imagine that for some other senior leaders in government, the day when someone calls for their resignation would be the day they’d remember throughout their career. That’s just part of the territory here.” (Washington Post, July 19, 2010).  However, Janice Kephart, Director of National Security Policy at the Center for Immigration Studies, noted that a unanimous rebuke from one’s entire workforce of agents is under no circumstances a typical critique of a government official. Morton, she states, cannot do his job unless the agents can do theirs. But then again, she notes, maybe this is the point. (CIS blog, August 4, 2010)

Republican Leaders Voice Support for Re-Examining Birthright Citizenship

In a fact-paced turn of events over the past week, Republican leaders in both the House and Senate have voiced their support for examining the issue of birthright citizenship.  The debate over birthright citizenship was revived nearly ten days ago when amnesty advocate Senator Lindsey Graham (R-SC) announced he may introduce a constitutional amendment to end the practice of automatically granting citizenship to children born in the United States regardless of the parents’ immigration status.  (Politico, July 29, 2010)  Graham’s statements immediately grabbed headlines and sparked furious opposition from amnesty advocates.

But despite such criticism, over the past week key Republican Leaders have echoed Graham’s desire to examine the issue. Senate Minority Leader Mitch McConnell stopped short of endorsing an amendment to the Constitution, but said “I think we ought to take a look at it – hold hearings, listen to the experts on it,” (The Hill, Aug. 2, 2010).  McConnell’s statements were similar to Senate Minority Whip Jon Kyl (R-AZ) who said he suggested to Senator Graham that “we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.” (Id.)

Other prominent Senators have voiced their support for holding hearings on birthright citizenship. Judiciary Committee Ranking Member Jeff Sessions (R-AL) said, “It’s very much worthy of discussion,” adding that he thought hearings are a good way to do it. “I’d like to see somebody draft an amendment, and let’s see what it says.” (Politico, Aug. 4, 2010). Meanwhile Senator John McCain (R-AZ), who is in a heated primary battle, was a little more reserved in his support, stating simply that he supports “the concept of holding hearings.” (Id.)

On the House side, Minority Leader John Boehner announced his support for studying a possible change birthright citizenship on NBC’s Meet the Press. “I think it’s worth considering,” he said. (Meet the Press transcript, Aug. 8, 2010)  “[T]here is a problem. To provide an incentive for illegal immigrants to come here so that their children can be U.S. citizens does, in fact, draw more people to our country….[I]n certain parts of our country, clearly, our schools, our hospitals, are being overrun by illegal immigrants, a lot of whom came here just so their children could become U.S. citizens.”

The controversy surrounding birthright citizenship stems from one clause in the first sentence of the 14^th Amendment, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  This sentence has been interpreted to automatically grant citizenship to any child born within the territorial United States, regardless of whether their parents are tourists, business travelers, or even illegal aliens. Some scholars argue that birthright citizenship was never intended to be a blanket citizenship to the children of all persons born within the territorial United States.  Their research supports the argument that the Framers of the Fourteenth Amendment intended the phrase “subject to the jurisdiction thereof” to mean those having allegiance to the United States government, not those who are merely physically located on U.S. territory.  (See FAIR’s Issue Brief, April 2008). They also argue that Section 5 of the 14^th Amendment, which reads, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” grants Congress broad authority to define the phrase by statute.

Whether Congress moves forward with hearings on birthright citizenship is uncertain. What is clear is that the existing interpretation of the first sentence of the 14^th Amendment resulting in birthright citizenship has led to significant abuse of the U.S. immigration system.  Despite the fact that their parents broke U.S. immigration laws, children of illegal aliens automatically become citizens, are eligible for benefits, and are able to petition to bring their parents into the U.S. when they reach 21.  Texas alone last year had approximately 60,000 such births. (Dallas Morning News, Aug. 8, 2010). At Parkland Memorial Hospital in Dallas, data show that the hospital handled 11,071 births last year to women who could not provide proof of U.S. citizenship – or 74 percent of the total 14,872 births at the hospital. Most of these women are believed to be in the country illegally. (Dallas Morning News, Aug. 8, 2010).  There has also been a rapid growth of “birth tourism,” an industry in which companies organize pregnant women from other countries to come to the U.S. to give birth so that their children will become U.S. citizens. In April of this year, ABC News reported that data from the National Center for Health Statistics showed that the number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2006. (ABC News, Apr. 14, 2010