May 18, 2009

Right Side News Reports from the Federation for American Immigration Reform in this May 18th Legislative Weekly…  

  • Senate Rejects Vitter Amendment to Prevent Terrorists, Illegal Aliens from Getting Credit Cards
  • Agriculture Amnesty Bailout Bill (AgJOBS) Reintroduced in Congress
  • Lawmakers Question Napolitano on Homeland Security Budget Request
  • Fugitive Wanted by International Police Possibly Allowed into U.S. 


Senate Rejects Vitter Amendment to Prevent Terrorists, Illegal Aliens from Getting Credit Cards

Last week, during debate over a bill to regulate the credit card industry, Senator David Vitter (R-LA) offered an amendment (Amendment #1066) that would have established new rules with respect to how banks issue credits cards.  (Vitter Press Release, May 13, 2009).  The amendment would have required that banks verify the identification of any person who is not a citizen or national of the United States before they were permitted to open a credit card account.  In addition to preventing the ability of illegal aliens to obtain credit cards, Senator Vitter’s press release stated the amendment “would have also closed the loophole that allowed the September 11, 2001 hijackers to obtain credit cards from United States banks to finance their terrorist activities.”  (Id.).

After the 9/11 attacks, Congress created the “9/11 Commission” to investigate the facts that led up to the attacks.  Commission staff issued a public report detailing how the 9/11 hijackers were able to circumvent not only the U.S.’s immigration laws but also how they were able to finance their activities in the U.S. – by using ATM and credit cards issued by U.S. banks.  (See Chapter 4 of the staff’s Monograph on Terrorist Financing).  A portion of that monograph stated: “The 9/11 attack provides a good case study of how a large terrorist cell can be financed in the United States…. [including accessing] accounts overseas… with credit or ATM cards.” (Page 52).  According to the findings of Commission staff, the terrorists had used this method to finance their operations “up until September 10.”  (Page 58).

In order to address these findings, Congress required the Department of Treasury, as part of the USA Patriot Act, to issue regulations requiring banks to verify the identity of their customers.  9/11 Commission staff described Section 326 as follows: “banks must obtain and accurately record key identifying information about their customers, including date of birth, Social Security number, and passport number.”  (Page 61).  Unfortunately, the final regulations issued by the Bush Administration did not live up to the intent of Congress, as described by the 9/11 Commission staff.  As commentators have said, those final regulations were “not as burdensome as [had] been in the proposal stage,” thereby leaving a gaping loophole which allowed each bank to develop its own “risk-based approach” to determine who their customers were.  (Lexis-Nexis, Bridger Insight.  See also Department of Treasury Press Release on regulations, April 30, 2003).

Senator Vitter noted during debate over his amendment that, since 9/11, many banks have been exploiting the loophole in the Treasury regulations to begin issuing credit and ATM cards to illegal aliens.  (Congressional Record, Page 5421, May 13, 2009.  See also, Wall Street Journal, February 13, 2007).  The obvious implications of the Treasury regulations in regards to immigration would allow illegal aliens to send remittances back to relatives in their home country in much the same way that the 9/11 hijackers were able to access their funds while in the United States.  Senator Vitter described his amendment, saying: “It simply empowers the [Federal Reserve] to come up with appropriate regulations to ensure that credit cards are only issued to folks who are in the country legally, to ensure that we don’t empower and facilitate illegal aliens and terrorists….”  (Id.).

Senator Chris Dodd (D-CT), chairman of the Senate Banking Committee, spoke in opposition to the Vitter amendment and, for reasons explained herein, erroneously stated that the Vitter Amendment was “already included in section 326 of the USA PATRIOT Act. It is redundant and not necessary….” (Id.).  Dodd also stated: “this bill is designed specifically to deal with credit card reform” and then inexplicably suggested it was inappropriate for Congress to consider the Vitter Amendment, which deals with how banks issue credit cards, as part of a credit card reform bill.  Dodd continued saying “a matter such as this obviously belongs in a more appropriate place.”  (Congressional Record, Page 5422, May 13, 2009).  Finally, Dodd told his Senate colleagues that the Treasury Department was also opposed to the Vitter Amendment.  (Id.).  The Vitter Amendment was rejected by the Senate by a vote of 28 to 65.  (Roll Call Vote 190, May 13, 2009).

Agriculture Amnesty Bailout Bill (AgJOBS) Reintroduced in Congress

Last Thursday, May 14, Senator Dianne Feinstein (D-CA) and Representative Adam Putnam (R-FL) reintroduced the Agricultural Job Opportunities, Benefits and Security (AgJOBS) Act. AgJOBS would grant amnesty to at least 2 million illegal alien agricultural workers and “reform” the H-2A temporary agricultural worker program to allow employers easier access to cheap foreign labor.  While actual text of the bill hasn’t yet been made public, it appears that the bill will be equivalent to versions Congress has debated in the past. (See FAIR’s Legislative Analysis of the 2007 Version of AgJOBS).

Feinstein gave an extensive speech on the Senate floor last Thursday morning in support of AgJOBS, claiming that Congress needs to pass her amnesty bill because of “a farm emergency in this country” brought about by “the absence of farm labor.”  These claims ignore numerous, recent news reports that California agriculture is suffering from severe drought, financial downturn and unemployment. (See e.g. The New York Times, Feb. 21, 2009).  Nevertheless, Senator Feinstein used her floor time to resurrect previously told stories about farmers hurt by worker shortages, including Lake County, California pear farmer Toni Scully. (Senator Feinstein’s Floor Speech, May 14, 2009). Scully’s story was first told in 2006, and Feinstein “used a three-year-old photo of Scully to help make her case.” (The Miami Herald, May 14, 2009).

Media reports noted that special interest farm groups are already lining up to support AgJOBS, including the United Farm Workers of America and the California Farm Bureau Federation. (Id.). It is unclear as to whether Congressional leadership intends to move the legislation. In the past, Senator Feinstein has pushed Congressional Leadership to include AgJOBS in any “comprehensive” immigration reform package. (Senator Feinstein Press Release, May 17, 2007).

Lawmakers Question Napolitano on Homeland Security Budget Request

Department of Homeland Security (DHS) Secretary Janet Napolitano appeared before four separate Congressional committees last week to explain the Obama Administration’s $55.1 billion Homeland Security budget request for Fiscal Year (FY) 2010.  Legislators in both the House and the Senate questioned Napolitano extensively on how the Obama Administration plans to enforce border security and immigration laws, setting the stage for contentious battles over these issues as Congress moves forward with the appropriations process in the coming weeks. (CongressDaily, May 13, 2009).  Outlining the president’s budget request, Napolitano highlighted “five main action areas,” including two related directly to immigration: “Securing Our Borders” and “Smart and Tough Enforcement of Immigration Laws.” (See Napolitano’s Statement before the House Appropriations Homeland Security Subcommittee, May 12, 2009).

Under the border security action area, the Secretary drew attention to an Obama Administration initiative started in March “to strengthen security on the southwest border” (See FAIR’s Legislative Update, March 30, 2009) and argued that the budget request would strengthen the initiative “by adding manpower…to the southwest border.” Though this statement is technically accurate, the administration’s budget only seeks to hire 44 new Border Patrol agents and 65 new Customs and Border Protection (CBP) officers. Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (ID-CT) and Ranking Member Susan Collins (R-ME) both told Napolitano that they felt DHS will need more money for its border security efforts. Lieberman confirmed that he would seek to add at least $500 million to the administration’s border security request, some of which would go toward hiring 1,600 CBP officers and 400 canine teams. (Senate Homeland Security and Governmental Affairs Committee Hearing, May 12, 2009).

In the immigration enforcement portion of her statement, Napolitano chose to underscore the administration’s $112 million request for E-Verify, the online, electronically operated system that allows employers to quickly check the work authorization status of their new hires.  House Appropriations Committee Members questioned Napolitano over her support of E-Verify, pointing out that the Obama Administration has twice delayed a rule that would require most federal contractors to use the program to confirm the legal status of their workers. Napolitano expressed support for implementing the rule, billing herself as a “big supporter of E-Verify.”  E-Verify is set to expire at the end of September 2009, but the budget request seeks to extend the program for three years.  This led House Appropriators to ask Napolitano if she thought the program should be permanently extended. Napolitano replied: “I leave that for Congress’ wisdom. I would like it certainly for more than one year.” (CongressDaily, May 13, 2009).

House Appropriations Homeland Security Subcommittee Chairman David Price (D-NC) asked Napolitano whether she believes Immigration and Customs Enforcement (ICE) should reprioritize its enforcement of immigration laws by focusing on illegal aliens who have committed serious crimes over non-criminal illegal alien workers.  While Napolitano stopped short of committing to such a prioritization, she did note that finding and deporting criminal illegal aliens is “a high interest” for ICE and added that ICE must also build cases to prosecute employers who hire illegal aliens. “In the world of illegal immigration, ICE has to multi-task,” Napolitano told the subcommittee. Napolitano’s testimony prompted House Appropriations Full Committee Ranking Member Jerry Lewis (R-CA) to express concern that DHS was shifting an emphasis and resources away from arresting non-criminal illegal alien workers.

Both Chairman Price and Napolitano hinted at future changes to 287(g), a program that allows ICE to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration law. Napolitano did not mention 287(g) in her opening statement, but Price raised concerns that the program was straining relationships between law enforcement agencies and immigrant communities. Napolitano said that she wanted to make 287(g) agreements “more uniform” across the country. (Id.). This statement seems to conflict with the legislative intent of 287(g). Earlier this year, the author of the legislation that created 287(g) – Congressman Lamar Smith (R-TX) – made clear Congress’ intent: “The goal was to really enable those local law enforcement authorities who wanted to enforce the immigration laws in whatever way they thought best.” (House Homeland Security Committee Hearing, March 4, 2009).

The president’s budget for DHS represents merely a request from the Administration as to how they would like to see the federal government’s money spent on homeland security. Congress, however, has the true power to appropriate money and can essentially choose to wholesale adopt, modify, or reject the DHS budget request. These initial hearings set the table for the coming appropriations process in the House and Senate.

Fugitive Wanted by International Police Possibly Allowed into U.S.

Customs and Border Patrol (CBP) officials revealed last week that they may have accidentally allowed an international fugitive into the country last week, despite the fact that he was suspected of alleged rape, armed robbery and illegal possession of a weapon.  According to court documents obtained by FOX News, immigration officers fingerprinted a man who flew into J.F.K. International Airport in New York City in early April, resulting in a possible match to a man named Frank Dwomoh. Dwomoh has been on Interpol’s “Wanted Person Lookout” list for crimes in Italy dating back ten years. According to the FOX News report, the man was allowed to enter the U.S. “due to limited information about the Interpol Lookout at that time.” (FOX News, May 11, 2009).

The man was granted a “deferred inspection,” which “is an honor system of sorts that allows travelers into the United States when their immigration status cannot be immediately determined at an airport, border crossing or other point of entry.” (Id. See also CBP’s Overview of Deferred Inspection, February 25, 2008). Travelers are then supposed to report to an immigration office at some later time to resolve the issue and prove that they have legal permission to be present in the United States. In this case, the man, originally from Ghana, had been ordered by CBP to appear at Washington Dulles International Airport in late April, but has defied that order. Additionally, neither the man nor his attorney has answered phone messages left by federal officials. This has prompted a federal judge to issue a warrant for the man’s arrest.

Last year, immigration officials granted 7,300 travelers deferred inspections, far less than 1% of the more than 370 million foreign travelers CBP processes every year. While deferred inspections are not widely used, CBP spokesman Michael Friel noted that they are often granted to green card or visa holders who have “minor document problems.” While it’s unclear what documents the man used to gain entry to the U.S. in this particular case, Friel noted that individuals granted deferred inspections have an incentive to resolve any issues with their documentation: “As part of the deferred inspection, we keep what documents they have.” (FOX News, May 11, 2009).

Deferred inspection has been the center of controversy in the past. FOX News points out that the case of Elian Gonzalez, the Cuban boy at the center of a controversy in 2000, began as a deferred inspection. The report also highlights a Jamaican man who was given a deferred inspection in April 2007, “even though ‘CBP officers had information that [he] was the subject of [an] ongoing murder investigation’ in Pennsylvania.” (Id.). The man – 33 year old Floyd Bogle of Jamaica – presented a green card to CBP officials at a border crossing in Buffalo, NY. Even though CBP received information that Bogle had been flagged as a “person of interest” in the murder of his father just days earlier, Bogle was granted a deferred inspection “until enough evidence had been gathered to charge him with the murder.” Bogle was charged with murder nearly a year later and ultimately arrested by CBP officials shortly after he showed up for his follow-up inspection in New Jersey. (CBP News Release, April 11, 2008).

The possible granting of a deferred inspection to an international fugitive is only the latest in a recent series of events that have raised questions about the nation’s border security. (See FAIR’s Legislative Update, May 11, 2009). Earlier this month, the Society for Risk Analysis released a report that concluded that the odds of a non-Mexican terrorist utilizing the U.S.-Mexico border to enter the United States are fairly high. (Society for Risk Analysis, May 2009). Additionally, the Federal Bureau of Investigation (FBI) released a report on May 6 detailing flaws in the FBI’s terrorist watch list, which was created after the 9/11 terror attacks to track known international threats. The FBI report indicated that some potential terrorists were added to the list too slowly, allowing these individuals to travel to and from the United States at will. (FBI Report, May 2009).

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.