US Legislative Immigration Update May 11, 2009

House Appropriations Committee Rejects Border Security, E-Verify Amendments

During a markup of the Fiscal Year (FY) 2009 supplemental spending bill, the House Appropriations Committee last Thursday rejected two amendments that sought to enhance border security and protect American jobs. The first amendment, offered by Homeland Security Subcommittee Ranking Member Hal Rogers (R-KY), contained several provisions aimed at strengthening the integrity of the U.S.-Mexico border. Additionally, Rep. Jack Kingston (R-GA) offered an amendment that would prevent jobs created by the supplemental from being taken by illegal aliens. (Congressional Quarterly Committee Coverage, May 7, 2009).

Rogers’ amendment sought to redirect $200 million of the bill’s spending to fund Department of Justice (DOJ) and Department of Homeland Security (DHS) programs aimed at securing the U.S.-Mexico border. The amendment included $15 million for detention efforts; $5 million for the U.S. Marshals Service; $75 million for interagency crime and drug enforcement; $5 million for courts and judicial services; $27.2 million for Customs and Border Protection; $52.8 million for Immigration and Customs Enforcement; $10 million for the Coast Guard; and $10 million for Federal Emergency Management Agency state and local programs. 

The amendment would have shifted funding from certain international programs for which the Obama Administration did not request funding, and some of which the Committee’s ranking member Rep. Jerry Lewis (R-CA) criticized as “excessive and poorly justified” to domestic law enforcement.  (Government Executive, May 8, 2009).  Following the vote on the amendment, which was supported by 22 Republicans but opposed by 35 Democrats, Rep. Rogers said: “How, in all good conscience, can we provide increases in foreign assistance – increases that were not requested by the White House – by some $3 billion and, yet, neglect the needs of the domestic law enforcement and border security agencies that are confronting the treacherous drug war on our doorstep?  This amendment would have shifted resources from foreign countries and invested in our own security and rule of law right here at home at a time when communities from Atlanta to San Diego are dealing with the spillover affects [sic] of this violent drug trade.”  (Rogers Press Release, May 7, 2009 and CQ).

Kingston’s amendment sought to require entities who receive contracts under the supplemental to enroll in E-Verify. The amendment was rejected by a voice vote (Id.) in spite of the fact that, earlier this year, this same committee approved – by a voice vote – a similar amendment that required any federal contractor that received federal funding from the stimulus bill to verify the employment eligibility of their workers through E-Verify. (FAIR’s Legislative Update, January 26, 2009). This amendment was ultimately stripped from the bill. (FAIR’s Legislative Update, February 17, 2009).

The Appropriations Committee’s rejection of these amendments suggests that Congressional leaders are poised to cater to amnesty advocates behind the scenes, giving President Obama room to cater to enforcement supporters in public.   For example, at a recent press conference, the President observed, “If the American people don’t feel like you can secure the borders then it’s hard to strike a deal that would get people out of the shadows and on a pathway to citizenship who are already here, because the attitude of the average American is going to be, ‘Well, you’re just going to have hundreds of thousands of more coming in each year.'” (The Washington Times, May 8, 2009).

Napolitano Endorses DREAM Act; Dodges Questions about “Comprehensive” Immigration Reform

Testifying before the Senate Judiciary Committee last week, Homeland Security Secretary Janet Napolitano endorsed the DREAM Act but altogether avoided making a public statement about legislation to enact what amnesty advocates call “comprehensive” immigration reform.  The hearing, the first in which Senator Jeff Sessions (R-AL) presided as ranking member, was held as part of the Committee’s oversight authority over the Department of Homeland Security.  For over two hours, members of the Committee asked Napolitano about the DREAM Act, “comprehensive” immigration reform, E-Verify, and a host of other immigration and security-related issues.

From her opening statement, Secretary Napolitano made a significant effort to try and show that the Obama Administration was engaged in immigration enforcement. “[W]e are refocusing our efforts on smart and effective immigration enforcement,” she said.  “We are targeting the employers that hire illegal aliens and create the demand for illegal immigration.  We are making improvements to the E-Verify system.” Napolitano said other activities Homeland Security is undertaking include expanding efforts to “identify, arrest, and deport criminal and fugitive aliens”; “improving” the 287(g) program and the detention of aliens; and working to “strengthen and standardize” travel and identification documents. (Hearing Transcript).

Although Napolitano suggested she supported these and other enforcement efforts, she also went on the record supporting amnesty. Senator Dick Durbin (D-IL) used his allotted time to discuss the DREAM Act, amnesty legislation he has co-sponsored for eight years.  When he asked Secretary Napolitano for her opinion on the DREAM Act, she replied: “[w]e have to have the ability to deal with some of the human issues that arise here. And the one that you have identified is one of the most acute.  I supported the DREAM Act when I was governor.  I support it now.”  (Id.).

Interestingly, while Napolitano did not hesitate to endorse the DREAM Act, she altogether avoided endorsing “comprehensive” immigration reform legislation. Several Senators raised the issue of “comprehensive” immigration reform, but the exchange with Senator Herb Kohl (D-WI) was perhaps most extensive on this subject. During questioning, Secretary Napolitano set forth what she felt should be the guiding principles for immigration reform:

One is, you have to have a strong and effective enforcement strategy that is sustained over time. And your enforcement strategy has to be a system that is not just at the border, but includes the interior of the country, as well.

The second is that you need to look at reform of the entire visa system.  In other words, how we award visas, what are the criteria, how long or how many are granted, particularly in certain categories.  That needs to reexamined [sic].

And then, third, the Congress is going to need to address what do you do with the members, or the people already in the United States, many of whom have been here for a number of years, who are undocumented, who are here illegally.  (Id.).

But when Senator Kohl asked Napolitano to give her opinion on how the government should address illegal aliens currently in the U.S., she responded: “I would prefer to do that in the context of when the president and Congress take up an overall approach to this immigration issue.  I am focused now, as I believe my charge is, to enforce the law that we have, and to do it intelligently and effectively.”

These comments appear to mirror those made by President Obama on the importance of enforcing our immigration laws at a press conference two weeks ago.  Political observers have wondered whether these comments from the administration, coupled with ongoing economic stress, signal that the administration has left it to Congress to lead on the issue of amnesty legislation.  In particular, some have suggested that President Obama may not wish to expend his political capital in promoting controversial amnesty legislation with an agenda that includes sweeping reforms on health care and energy policy.

Supreme Court Rules on Identity Theft Case in Flores-Figueroa

Last week, the U.S. Supreme Court overturned the conviction of an illegal alien who was convicted on charges of identity theft and sentenced to two additional years as a result. (See FAIR Legislative Update, February 9, 2009).   The case, Flores-Figueroa v. United States, involved an illegal alien who, in order to gain employment at a steel company, provided a false name and date of birth together with a fraudulent alien identification number and Social Security number which had never been assigned to a real person.  In 2006, Mr. Flores-Figueroa told his employer that he wanted to be known by his true name and wanted to change the Social Security and alien registration numbers on file for him.  He then presented his employer with a Social Security number and an alien registration number that were not his but which the government had assigned to other people. His employer became suspicious and contacted federal authorities. (See Government Brief).

Flores-Figueroa plead guilty to two counts of using fraudulent immigration documents (18 U.S.C. 1546(a)), and one count of illegally entering the U.S. (8 U.S.C. 1325(a)).  The defendant then went to trial, and was convicted on two counts of aggravated identity theft (18 U.S.C. 1028A(a)(1)).  This conviction added an additional two years to his sentence.  Flores-Figueroa was sentenced to a total of 75 months with three years supervised release.

The defendant appealed his conviction of aggravated identity theft, arguing that the government failed to prove that he knew that the identification numbers he had used belonged to someone else.  He argued that under the federal statute, he could only be guilty of aggravated identity theft if, during the commission of a related felony, he “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person….” (18 U.S.C. 1028A(a)(1)).  Federal prosecutors argued that the statute only required the government to prove that the defendant knowingly used a form of identification without lawful authority and that under the defendant’s interpretation it would be impossible to prove that a defendant actually knew a stolen Social Security number belonged to another person.  The federal court of appeals ruled in favor of the government; the illegal alien defendant appealed to the United States Supreme Court.

The Supreme Court ruled in favor of the defendant, agreeing with his interpretation of the law.  Noting the case before the Court involved a narrow issue of statutory construction, Justice Stephen Breyer emphasized that the plain language of the aggravated identity theft statute required prosecutors to demonstrate that the illegal alien defendant in fact knew the Social Security number he was using belonged to someone else.  The Court’s majority opinion consisted of a review of English grammar and an explanation of those rules and the rules of judicial interpretation.  Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all concurred in the ruling, meaning that the court agreed 9 to 0 as to the interpretation of the statute.  (Decision, May 4, 2009).

Unfortunately, the Supreme Court’s decision takes away an important tool from federal prosecutors, who had been using the statute to forcefully prosecute identity theft. (Workday Minnesota, May 5, 2009).  The good news, however, is that the statute was not struck down and can still be used by prosecutors, if only in more limited circumstances.  The decision in no way limits Congress from amending the criminal code to return this tool to prosecutors and to help them tackle one of the fastest growing crimes in the country. 

Open borders advocates and some media outlets have taken pains to spin the Flores-Figueroa decision as a rebuke of the government for prosecuting illegal aliens who commit identity theft.  This is not surprising given the amount of resources they poured into the case. (See SCOTUSwiki for links to briefs in support of the defendant filed by Mexican-American Legal Defense Fund (MALDEF) and U.S. Hispanic Chamber of Commerce; American Immigration Lawyers Association (AILA) and National Immigration Law Center (NILC); and Electronic Privacy Information Center (EPIC).  (See also, The Miami Herald, May 6, 2009, in which the media over-reached in saying “it is clear that [the Court] found an indisputably flagrant abuse of the legal process” and CNN.com, in which Ruben Navarette wrongly suggested that the court found prosecutors would have to show that the illegal alien was using an identity that “belonged to a real person who they intended to harm” when the Court did not even discuss the issue of intent.).

Obama Administration Releases Budget; Immigration Programs Affected

Last week, the Obama Administration released the details of its Fiscal Year (FY) 2010 budget request. The numbers suggest the Administration intends to realign enforcement priorities, by increasing funding in some crucial areas and cutting funding in others.  Immigration programs impacted by the budget include: E-Verify; 287(g); the prioritization of aliens who are to be removed from the United States; the State Criminal Alien Assistance Program (SCAAP); and border security.

President Obama’s request for the Department of Homeland Security (DHS) includes:

• $112 million for E-Verify, the voluntary, electronically operated system that allows employers to quickly check the work authorization status of their new hires. (See FAIR’s E-Verify Talking Points). Of this amount, $10 million is to be used “for E-Verify process and system enhancements.” (FY2010 Budget Request Appendix: DHS). The program is essentially funded at the level approved by Congress last year.
• $5.4 million “to facilitate agreements consistent with section 287(g) of the Immigration and Nationality Act.” (FY2010 Budget Request Appendix: DHS). Section 287(g) allows Immigration and Customs Enforcement (ICE) to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws. As of February 2009, 67 local, county, and state law enforcement agencies were already participating in 287(g), while another 42 agencies had requested 287(g) authority and were waiting to enter into agreements with ICE. (GAO Testimony, March 4, 2009). Despite this strong demand from frontline law enforcement agencies and the obvious popularity of the program, the $5.4 million requested by the Obama Administration to facilitate 287(g) agreements in FY2010 represents no funding increase from FY2009.
• $150 million to remove deportable criminal aliens. The request goes on to require DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” (FY2010 Budget Request Appendix: DHS).

The administration’s request for the Department of Justice (DOJ) includes:

• A $10 million cut (from $410 million to $400 million) for State Criminal Alien Assistance Program (SCAAP) funding. (FY2010 Budget Request Appendix: DOJ). SCAAP gives federal funding to states to help defray the cost of incarcerating criminal illegal aliens. (The Washington Times, May 7, 2009). President Obama’s decision to cut SCAAP funding seems to conflict with a provision in the DHS section of the budget proposal in which the president asks for $150 million to remove criminal aliens “once they are judged deportable.” (FY2010 Budget Request Appendix: DHS). Judging an alien “deportable” could require states to hold criminal aliens pending the outcome of their trial, and the budget request seeks to cut $10 million from a federal program that helps states defray the costs of these incarcerations.
• $30 million for the Southwest Border Prosecutor Initiative, which reimburses state and local governments for costs associated with the prosecution of criminal cases declined by United States Attorneys. The administration’s budget request shifts $1 million in funding for this program where it is needed most, along the Southern border, to a similar program along the northern border. (FY2010 Budget Request Appendix: DOJ).

The President’s budget represents merely a request from the Administration as to how they would like to see programs funded-or not funded. Congress, however, has the true power to appropriate money and essentially can choose to wholesale adopt, modify, or reject the President’s budget request. As Congress and the administration negotiate the complicated budgeting and appropriations process over the coming months, stay tuned to FAIR for in-depth analyses of important immigration-related funding decisions.

Study Finds Porous Border Poses Significant Terrorist Threat

A report by the Federal Bureau of Investigation (FBI) and a separate academic study conclude that the points of entry along the U.S. border and unsecured porous border continue to pose a threat from terrorists who may seek to exploit border security weaknesses.  They also serve as a reminder that significant changes are needed to address this risk.

On Wednesday, May 6, FBI Inspector General Glenn A. Fine released a report detailing what his office perceived to be flaws in the FBI’s terrorist watch list, which the FBI developed in the wake of September 11, 2001.  Law enforcement created the list, which is composed of data received from several federal agencies, to track known international threats.  (FBI Report, May 2009; and FBI Press Release, May 6, 2009).  Federal agencies that collect and supply data for the list do not follow uniform reporting standards which, the report notes, has resulted in tens of thousands of names being improperly added to the list while other names are not removed long after an investigation had closed. 

The report indicates, however, that some potential terrorists were added to the list too slowly, which resulted in these potential terrorists being able to travel to and from the United States at will.  Inspector General Fine said that problems with the list – which contained 400,000 names, not including known aliases, as of September 2008 – have “create[d] a risk to national security.”  FBI Assistant Director John Miller indicated that the FBI was working to correct these problems by embracing each of the report’s recommendations.  (The New York Times, May 6, 2009; and The Washington Post, May 7, 2009).

America’s security threats are not just limited to known threats who may chose to enter America through the nation’s ports of entry but, as researchers from Stanford University and George Mason University concluded earlier this year, significant threats also persist as a consequence of illegal border crossings across the porous U.S.-Mexican border.  The researchers put together what may be the first mathematical model predicting the likelihood of terrorist infiltration across the United States’ shared border with Mexico.  (Society for Risk Analysis, May 2009).  Lawrence Wein and Arik Motskin, of Stanford, and Yifan Liu, of George Mason, used previously compiled statistical data and mathematical models to analyze the flow of persons across the U.S.-Mexico border, which is the more heavily trafficked of the United States’ two international borders.  The authors concluded that the odds of a non-Mexican terrorist utilizing current border conditions to enter the United States are fairly high. 

One calculation, based upon several assumptions about the degree of border screening and other aspects of domestic interior enforcement, determined that the probability of a non-Mexican terrorist crossing into the United States was 97.3%.  That probability increased, to 98.9%, if attempts were made to detain all illegal aliens of Mexican origin without any structural changes to the current apprehension and removal process (p. 8).  The study concluded that minor shifts in border policy would not drastically reduce the likelihood of non-Mexican terrorist infiltration across the U.S.-Mexico border and that significant reductions in the probability of terrorist infiltration would be possible only with increases in funding for the agencies that deal with immigration and border enforcement (p. 9).
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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.