US Legislative Immigration Update September 29, 2008

On Saturday, September 27th, Congress completed work on H.R. 2638, a continuing resolution (CR) that contained a short-term reauthorization of E-Verify, extending the program until March 6, 2009. This leaves the program vulnerable to a new administration and a new Congress using it as a bargaining chip in attempts to pass amnesty for illegal aliens. The Senate passed this stop-gap spending bill on Saturday on a 78-12 vote, while the House had passed it earlier in the week by a 370-58 vote. The CR is designed to fund government operations until Congress reconvenes after the first of the year.

As of Monday morning, the Senate had failed to take up H.R. 6633, a five year reauthorization of E-Verify that had passed the House on July 31st by a 407-2 vote. For months, E-Verify has been placed on hold in the Senate by Senator Robert Menendez (D-NJ) unless the Senate would agree to include two controversial provisions which would “recapture” visas that went un-issued between 1992 and 2007, adding an estimated 570,000 extra visas to the immigration system. (See, FAIR Legislative Update, September 22, 2008)

The CR also continues government operations at 2008 levels, and provides $600 billion in fiscal 2009 spending for the departments of Defense, Veterans Affairs and Homeland Security. (Roll Call Gallery Watch, September 27, 2008)

In addition to the short extension of E-Verify, the CR contains funding for the program through fiscal year 2009 at $100 million. (H.R. 2638, Title 4)

Senate Panel Scrutinizes Visa Waiver Program

Last Wednesday, September 24, the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security held a hearing to assess the Visa Waiver Program (VWP). The VWP allows nationals of 27 participating countries to travel to the United States for business or tourism stays of 90 days or less without obtaining a visa. (State Department Fact Sheet)

The primary focus of the hearing was a recently released Government Accountability Office (GAO) report that found that the Department of Homeland Security (DHS) “has not fully developed tools to assess and mitigate risks in the Visa Waiver Program.” (GAO Report, September 15, 2008) GAO further noted in the study that DHS is “moving aggressively to expand the Visa Waiver Program by the end of 2008.” (Id.) The report’s findings troubled Subcommittee Chairwoman Diane Feinstein (D-CA), prompting her to remark in her opening statement that she found it “ironic that the Department of Homeland Security, whose number one goal is to protect the nation from dangerous people, is instead expediting the expansion of a program that we know is exploited by dangerous people.” (Subcommittee Hearing, September 24, 2008)

Witnesses at the hearing included Jess T. Ford, GAO’s Director of International Affairs and Trade and Stewart A. Baker, Assistant Secretary for DHS. Speaking on his agency’s recently released report, Ford warned that, while the VWP may have many benefits, it “poses inherent security, law enforcement, and illegal immigration risks to the United States.” (Statement of Jess T. Ford, September 24, 2008) Baker told the Subcommittee in his prepared testimony that his Department “shares Congress’s expressed concern that terrorists and criminals may attempt to exploit visa-free travel,” and added that DHS “is committed to ensuring that both current and aspirant VWP members enhance their security standards and deepen their cooperation with the United States on security-related issues.” (Statement of Stewart A. Baker, September 24, 2008)

Senator Feinstein also announced at the hearing that she is considering introducing legislation next year aimed at constraining the VWP. Feinstein stated that she hoped to collaborate with the Ranking Member of the Subcommittee, Senator Jon Kyl (R-AZ), on the Strengthening of the Visa Waiver Program to Secure America Act. Kyl reacted with openness towards the Chairwoman’s request, noting that he had “reviewed a draft of the legislation” and wanted “to work with” Feinstein on the bill. (Subcommittee Hearing, September 24, 2008)

The House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held an oversight hearing last Tuesday on the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). EOIR is an office within DOJ “that interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews and administrative hearings.” (Congressional Quarterly, September 23, 2008)

The hearing came after the Justice Department’s Inspector General and Office of Professional Responsibility reported in July that former department officials had improperly taken ideological and political considerations into account when screening applicants for immigration judge (IJ) positions from 2004 to 2006. Both Republican and Democratic Committee Members expressed displeasure with the report. Subcommittee Chairwoman Zoe Lofgren (D-CA) opened the hearing by decrying what she viewed as “politicization of the immigration courts.” (Subcommittee Hearing, September 23, 2008) Full Committee Ranking Member Lamar Smith (R-TX) stated that while he too was “disappointed” with the “troubling” findings, it was important for the Committee to “not …let the actions of a few undermine the good work of the many.” (Id.) Smith added, “On the whole, immigration judges carry…out their duties in a highly professional manner. In fact, less than 10% of cases decided by immigration judges are appealed.” (Id.)

Lofgren and Full Committee Chairman John Conyers (D-MI) admitted that at least some of the blame for the hiring scandal was due to a lack of Congressional oversight. “EOIR has been too long ignored,” said Lofgren, with Conyers noting in his opening statement that “We in Congress haven’t been doing our job.” (Id.)

Bipartisan concerns were also raised in regards to immigration judge and staff shortages in the federal court system due to a recent increase in immigration court cases. Rep. Smith pointed out that this increase had occurred partly because of “a long overdue increase in enforcement of our immigration laws.” (Id.) Subcommittee Ranking Member Steve King (R-IA) highlighted the staffing shortage, pointing out that just over 200 immigration judges heard more than 328,000 cases in 2007, a statistic that prompted Conyers to imply that DOJ needed to hire “hundreds” of new IJ’s. (Id.) Smith argued that hiring additional IJ’s was only a part of the solution, pointing out that “the number of immigration cases will eventually decrease with a consistent emphasis on immigration enforcement.” (Id.)

EOIR Director Kevin Ohlson attended the hearing and testified in defense of his agency. Addressing the Committee’s concerns related to the hiring scandal, Ohlson testified that EOIR “now [has] in place a recruitment, screening, interviewing, recommendation, and selection process that…is a premiere system for identifying and appointing the very best candidates to serve as Immigration Judges.” (Statement of Kevin A. Ohlson, September 23, 2008) The Director also assured the Committee that his agency was determined to address the staffing shortages by “continuing to seek the resources necessary to hire additional Immigration Judges and staff.” (Id.)

Last Wednesday, September 24th, the Senate passed by unanimous consent S.2840, the “Military Personnel Citizenship Processing Act.” S.2840 was introduced by Sen. Chuck Schumer (D-NY) in April along with five co-sponsors. Sen. Ken Salazar (D-CO) asked for the unanimous consent agreement from the Senate floor last Wednesday.

S.2840 would establish an office within DHS that would serve as a liaison between that department and the Federal Bureau of Investigations (FBI) in effort to facilitate citizenship applications of both active and former service members and their spouses and minor children. (S.2840, Sec.2) The bill also requires that within six months of filing all service member applicants and their families have their applications adjudicated or be given reasons for the delay. (S.2840, Sec.3) The bill would sunset five years after its enactment. (S.2840, Sec.4)

The Congressional Budget Office (CBO) estimates that the initial cost of implementing S.2840 would be less than $1 million in 2009 and less than $500,000 in each of the following years. (Congressional Budget Office, May 15, 2008)