US Legislative Immigration Update October 20, 2008

U.S. Customs and Border Protection Commissioner W. Ralph Basham has disputed statements issued by the U.S. State Department and the Mexican government related to an August 3rd incident in which a U.S. Border Patrol agent was held at gunpoint by four Mexican soldiers. (See Legislative Update, August 11, 2008) In a private letter, Basham stated that the soldiers had bypassed several clearly visible barriers marking the U.S.-Mexico border before confronting the agent on American soil. “There is a barbed-wire fence and new tactical infrastructure within sight that marks the borderline where the incident took place,” said Basham in the letter to Edward Tuffly, President of the National Border Patrol Council Local 2544 in Tucson, AZ. (Commissioner Basham’s Letter, September 25, 2008) “Our uniformed agent, in a marked Border Patrol vehicle, identified himself in both English and Spanish.” (Id.) Tuffly agreed with the Commissioner, asserting, “A reasonable person would conclude that the soldiers knew exactly at whom they were pointing their rifles.” (The Washington Times, October 14, 2008)

Basham’s comments clash with statements made by officials from both the U.S. State Department and Mexican Embassy in the days following the incident. Mexican Embassy Spokesman Ricardo Alday compared the confrontation to other “innocent incursions by…Mexican law enforcement personnel and military units…along the non-demarcated areas of our border.” (Id.) State Department Spokesman Gonzalo Gallegos said at the time that the incident had “stemmed from a momentary misunderstanding as to the exact location of the U.S.-Mexican border.” (Id.)

Following the incident, The Washington Times reported that there had been more than 200 confirmed incursions by the Mexican military into the United States since 1996. (The Washington Times, August 6, 2008) Tuffly has decried the federal government’s response to these incidents: “Time after time [the Mexican military has] gotten away with these incursions and time after time our government has not taken a forceful stand against them.” (The Washington Times, October 14, 2008)

Oklahoma Attorney General Defends State E-Verify Law

Oklahoma Attorney General Drew Edmondson (D) is aggressively pursuing court approval for an Oklahoma state bill that was enjoined by a recent U.S. District trial court decision. The bill, HB 1804, requires Oklahoma employers to use the federal E-Verify system to check the work eligibility of their employees. The U.S. Chamber of Commerce, the Oklahoma Restaurant Association, and the Oklahoma Hotel and Lodging Association sued the state to stop enactment of the bill, arguing that it contradicts federal law, which currently makes participation in E-Verify voluntary. In June, the trial court judge ruled the E-Verify provision of the law was unconstitutional, but Edmondson disagrees: “The Oklahoma Legislature had the authority to enact a statute which protects the taxpayers and legal residents of the State of Oklahoma from suffering the adverse effects of illegal aliens.” He continued, “While HB 1804 is enjoined, the state cannot protect its legal workers.” (Legal Newsline, October 15, 2008)

Additionally, the Oklahoma law fights illegal immigration by mirroring federal law and making it a felony for any person to transport, harbor, or shelter an alien in reckless disregard for their illegal alien status. It requires the state to deny any public benefits to illegal aliens in the country-including driver’s licenses-that the state is not required by federal law to provide. Police are given the power to check the immigration status of anyone arrested for driving under the influence or for commission of a felony. They are also required to detain illegal aliens and transfer them to the custody of ICE. Finally, the law requires public employers in Oklahoma to use the E-Verify system to electronically determine the work authorization of their employees. (See Legislative Update, November 5, 2007) The Ninth Circuit Court of Appeals recently upheld a similar Arizona law that also required businesses to use E-Verify. (See Legislative Update, September 22, 2008)

Texas Moves to Deny Driver’s Licenses, ID Cards to Illegal Aliens

The Texas Department of Public Safety (DPS) has adopted a new policy that requires non-citizens to prove they are in the country legally before they can obtain or renew a driver’s license or identification card. The policy, which went into effect on October 1st, requires aliens to present valid government documentation showing that they are lawfully present in the United States prior to obtaining a driver’s license or personal identification card. Under the new guidelines, non-citizen applicants with indefinite admission periods will be required to present documents issued by the Department of Justice, Department of State, Department of Homeland Security, or Bureau of Citizenship and Immigration Services. (Houston Chronicle, October 8, 2008)

According to spokeswoman Tela Mange, DPS moved to implement the policy to close a loophole in Texas state law. While the state requires all applicants for driver’s licenses to provide a Social Security number, applicants can bypass the requirement by signing an affidavit stating that they have been deemed ineligible for Social Security benefits. The affidavit does not require applicants to state why they have been denied coverage, however. Mange added that the new policy also targets illegal aliens who attempt to obtain driver’s licenses by submitting false Social Security cards. (Houston Chronicle, October 8, 2008)

The new policy also provides for the creation of non-citizen driver’s licenses and identification cards. According to Texas Governor Rick Perry, these cards will be issued to aliens only if they are able to present acceptable documentation to confirm that they are legally present in the U.S. When the individual’s status is verified as legal, the applicant will receive a card with a “temporary visitor” designation and the date the temporary status expires on the face of the card. The cards will also have a different appearance than the cards given to U.S. citizens and lawful permanent residents so that they will be immediately recognizable to law enforcement authorities. The new policy also requires aliens who wish to renew or duplicate their cards to prove that their legal status has been updated or extended before they can receive a renewal or duplicate. (Governor Rick Perry’s Press Release, October 8, 2008)

Mange said that DPS’ governing board, the Public Safety Commission, imposed the new policy on its own. She noted that state lawmakers have proposed legislation in the past that would have brought about similar changes, but none of these bills have ever become law. (Houston Chronicle, October 8, 2008) “The Public Safety Commission wanted to protect the integrity of the licensing process and enhance the security of licenses and identification cards,” Mange said, adding that the driver’s licenses are “used for a lot more now than just the driving privilege.” (El Paso Times, October 12, 2008)

Public Safety Commission Chairman Allan Polunsky said that the policy change came about after the Commission learned of a taxi driver who had brought illegal aliens into Texas from other states so they could obtain Texas driver’s licenses. Polunsky also pointed out that the new requirements bring Texas into closer compliance with the federal REAL ID Act, which requires states to issue specially marked driver’s license to certain immigrants. (Houston Chronicle, October 8, 2008) Governor Perry praised the Commission’s decision: “Texas is a great place to live and work, and while we welcome legally documented individuals to the Lone Star State, we must ensure that this privilege is not abused by those seeking to enter our country illegally. The safety of Texans remains a paramount concern of my administration, and these new guidelines will provide additional security.” (Governor Rick Perry’s Press Release, October 8, 2008)

House and Senate May Return for Lame-Duck Sessions

The Congressional Quarterly reported last week that leadership in both the House and Senate are considering reconvening before or after the election. Speaker of the House Nancy Pelosi (D-CA) is considering calling the House of Representatives into session before the November 4th general election, according to a Congressional aide. The aide told Congressional Quarterly that a lame-duck session following the election is more likely, however. Last Monday, Pelosi noted that House committees would continue to hold hearings on economic stimulus proposals up to and possibly after Election Day. The Speaker stopped short of promising a post-election lame duck session and did not publicly discuss the possibility of a pre-election session, saying only that Democratic leadership stands “ready to take action.” (CQ Today Online News, October 13, 2008) Currently, only the Senate has made concrete plans to reconvene following the election. Senate Majority Leader Harry Reid (D-NV) has scheduled a Senate session for the week of November 17th to address unfinished business. An unnamed senior House Democrat told Congressional Quarterly that the House would likely reconvene for a lame duck session on the week of November 17th, as well. (Id.)

Before Congress recessed earlier this month, both chambers passed H.R. 2638, a stop-gap spending spill that contained a short-term reauthorization of E-Verify, extending the program until March 6th, 2009. This leaves the program vulnerable to a new administration and a new Congress using it as a bargaining chip in efforts to pass amnesty for illegal aliens. (See Legislative Update, September 28, 2008)

Prior to the passage of H.R. 2638, the House voted 407 – 2 to pass H.R. 6633, a five-year E-Verify reauthorization. However, the Senate failed to consider this legislation before it adjourned, thanks primarily to the efforts of Senator Robert Menendez (D-NJ), who is seeking to attach two controversial provisions to the bill that would “recapture” visas that went unissued between 1992 and 2007, adding an estimated 570,000 extra visas to the immigration system. (See Legislative Update, September 22, 2008) When the Senate returns for its lame duck session in November, it will once again have the opportunity to pass H.R. 6633. Stay tuned to FAIR for the latest on the Senate’s progress on this five-year reauthorization of E-Verify.