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Policy Update: Immigration Reform Still Alive in Congress

June 24, 2014 - Posted by Jacinta Ma

It has been a year since the Senate passed S.744, a sweeping, bipartisan immigration overhaul. However, reform has been stalled in the House, as internal divisions within the Republican Conference have prevented House Leadership from agreeing on a path forward. Many members of Congress have been waiting to see how pro-reform candidates fare in their primaries. As the primary season winds down, supporters of immigration reform have fared well, although one high-profile result has created significant uncertainty.

In a stunning upset, House Majority Leader Eric Cantor (R-VA) was defeated in his congressional primary on June 10 by underfunded economics professor Dave Brat, 56%-44%. While many analysts initially saw Cantor’s loss as the death knell for immigration reform, subsequent analysis (including from Speaker John Boehner (R-OH)) has led many to reconsider the initial reaction.

Although a few thousand Republican activists were able to topple Cantor, the Republican Party’s second-highest-ranking member in the House, the role of immigration in his defeat is dubious at best. While it is true that Cantor’s opponent attacked his support for “amnesty,” polling data demonstrated that the majority of Republican primary voters in Cantor’s district actually supported immigration reform with 72% of Republican primary voters in the district “strongly” or “somewhat” supporting an immigration reform plan mirroring the Senate bill (ensuring undocumented immigrants currently living in the U.S. pay a penalty, learn English, pass a criminal background check, pay taxes, and wait a minimum of 13 years before they can be eligible for citizenship). The factors that more clearly led to Cantor’s shocking defeat were the GOP primary electorate’s resentment of House Republican leadership, Cantor’s inattentiveness to his district, the campaign’s various strategic missteps, and Cantor’s relatively low likeability ratings. Moreover, many have highlighted Cantor’s straddling and dissonant positions on immigration reform including promising to unveil legislation to provide legal status to DREAMers (but never actually doing so), and campaigning on his efforts “stopping the Obama-Reid plan to give illegal aliens amnesty” while expressing a willingness “to reach a consensus on . . . border security, e-Verify, and what we do about children.”

On June 19, the House Republican Conference replaced the defeated Cantor as House Majority Leader. Rep. Kevin McCarthy (R-CA) easily won the race to serve as Majority Leader, defeating Rep. Raul Labrador (R-ID). In the race to replace the elevated McCarthy as House Majority Whip, Rep. Steve Scalise (R-LA) defeated Reps. Peter Roskam (R-IL) and Marlin Stutzman (R-IN) on the first ballot. McCarthy has previously stated that immigration reform will happen and should include legalization for the undocumented. He is now in the position of shaping the House GOP’s agenda.

Republican primary elections offer clarity on support for reform: Immigration can be a winning issue
While Cantor’s ambiguous and conflicting message on immigration did him no favors in his primary, other candidates who have supported reform in strong and clear terms won their primaries decisively, Sen. Lindsey Graham (R-SC), a categorical supporter of immigration reform who helped lead the fight to pass legislation in the Senate last year, very comfortably won his primary in South Carolina the same day Cantor lost. Graham received 57 percent of the vote, far ahead of the 15 percent received by the second-place finisher in a field of six challengers.

Similarly, Rep. Renee Ellmers (R-NC) easily won her primary election in North Carolina’s 2nd district in May. Ellmers, who has been a vocal supporter of reform, won handily over radio talk-show host Frank Roche. Roche used immigration as a focus of his campaign, stating that he would “protect the Republican Party from this massive mistake that is amnesty.” While he received the support of fellow conservative commentators Laura Ingraham and Ann Coulter, Ellmers received the support of 59 percent of her district’s primary voters.

While the concern remains that Cantor’s loss could paralyze mainstream Republican House members from taking action, incapacitating fear on the part of House Republicans would be misguided. With Congress’s approval rating at record low levels, continued inaction in Washington may imperil the Republican House majority in 2014, and could have devastating effects on Republican prospects in 2016. Given all of the problems with Cantor’s campaign having nothing to do with immigration—and the political incentives favoring reform—the inevitable round of obituaries for immigration reform in the wake of Cantor’s loss should therefore be met with some skepticism.

Recent polling finds conservative Republicans support reform
In addition to polling conducted in Cantor’s district, several other recent polls demonstrate widespread support for immigration reform, including among Republican voters. In May, Politico released a poll of likely voters in places with the most competitive House and Senate districts. In that poll, voters were asked if they “support or oppose comprehensive immigration reform.” Overall, 71 percent of respondents said they support reform, but the response from Republican voters was not much different—64 percent of Republicans polled said they support comprehensive immigration reform. The Politico poll merely asked about comprehensive immigration reform without specifying what that meant. As we know from other polls, the more reform is described (by saying, for example, it includes a path to citizenship for persons who meet certain conditions such as those contained in the Senate legislation), the more likely the response is supportive.

A collaboration of ten Republican polling firms was used to conduct surveys of registered voters nationwide, with an oversample of Republican voters, in the middle of May. (The collaboration also separately surveyed Hispanic voters.) The national survey found that, among Republican voters, a strong majority supports the idea that “undocumented immigrants” should be “allowed to apply for U.S. citizenship” or should be “allowed to apply for legal status.” Of those who identified as “strong Republicans” the breakdown was 28% supporting citizenship and 37% supporting legal status but not citizenship. (Only 29% support deportation.)

Focusing on Tea Party sympathizers, a recent poll conducted by McLaughlin and Associates found that these voters are more likely to support “a candidate for Congress who supports broad immigration reform, that would increase border security and a way for undocumented immigrants who are already in this country to stay in this country…,” (69 percent) versus a candidate “who focuses only on increasing border security and enforcement” (26 percent).

Results of these polls echo analysis of data guru Nate Silver, who examined a number of public opinion surveys and concluded that Republican voters are broadly supportive of immigration reform. On average, support among Republican voters for reform with conditions attached (such as those contained in the Senate bill) is 72 percent. Furthermore, Silver found that the voting public is not particularly divided over the issue of immigration—in a list of 11 controversial issues where there is a partisan divide on the solution, immigration reform with a conditional path to citizenship is the least polarizing, with 83% of Democrats and 72% of Republicans supporting that policy.

The ENLIST Act blocked in the House
At the end of May, Rep. Jeff Denham (R-CA) attempted to insert his ENLIST Act into the National Defense Authorization Act. Denham’s legislation would provide legal status to certain immigrants who were brought to the U.S. as children if they serve in the U.S. military. The legislation was ruled out of order in the House Rules Committee, which determines which amendments will be offered on bills going before the full House. A bill authored by Rep. Joaquin Castro (D-TX), which would allow recipients of Deferred Action for Childhood Arrivals to enroll in U.S. military academies, was also ruled out of order.

While the legislative window is open, a decision on executive action is on hold
Meanwhile, the Department of Homeland Security is reviewing ways immigration enforcement might be made more humane, including further prioritizing family unity and modifying the Secure Communities program to solely focus on those with criminal records. A unilateral move by the administration would come as a last resort—to mitigate the harmful consequences of Congress’s failure to provide a legislative fix to our broken immigration laws. Executive action would likely be limited, provide only temporary relief, and would be vulnerable to reversal in the next presidential administration. It would also likely reduce chances for a more permanent fix through legislation in this Congress, and many observers believe that an announcement of executive action at this stage would be counterproductive.

Indeed, a group of leading immigration reform organizations (including the National Immigration Forum, the Service Employees International Union, and the National Conference of Catholic Bishops among others) issued a statement on May 27 urging the administration to allow time for the House process to take place before taking executive action. The administration subsequently asked the Department of Homeland Security to continue with its review, but to hold off on announcing any recommendations. The administration reiterated its position following Eric Cantor’s primary defeat.

There is no timeline for a decision on executive action, but many observers have speculated that the window for legislative action will remain open until sometime this summer, after which time the likelihood of passing legislation in the House is reduced.

Rise in Unaccompanied Minors Crossing the Border Now a Humanitarian Crisis

During the past few years, there has been a steady increase in the number of unaccompanied children (UACs) crossing the southern border. According to administration estimates, the number of minors crossing the border increased more than 800 percent between fiscal years 2011 and 2013, and the numbers continue to rise. Many of these children are fleeing violence and crime in Honduras (with the highest murder rate in the world), Guatemala and El Salvador. The number of arrivals has created a humanitarian crisis to which the federal government is trying to respond.

On June 2, President Obama issued a memorandum charging the Secretary of Homeland Security with establishing “an interagency Unified Coordination Group” to coordinate federal efforts to provide “humanitarian relief to the affected children, including housing, care, medical treatment, and transportation.” In a statement, Secretary Johnson said he is appointing the head of the Federal Emergency Management Agency, Craig Fugate, to lead the federal response.

Ordinarily, unaccompanied minors are placed in government-contracted shelters until a guardian—a relative in most cases—can be found. However, the number of unaccompanied minors apprehended at the border now exceeds the government’s capacity to house them, and two military bases will be used for housing as a temporary fix. At the end of May, the administration requested more than $2.2 billion to handle the 127,000 minors projected to arrive in the next fiscal year—more than double the $868 million requested in the administration’s fiscal 2015 budget submitted just four months ago. On June 10, the Senate Appropriations Subcommittee for the Departments of Labor, Health and Human Services, and Education, and Related Agencies approved a bill (summary) that includes $1.94 billion for the unaccompanied alien children program.

Once they have been processed by CBP, UACs are placed in removal proceedings and, like other undocumented migrants, are not assigned legal counsel.  In response to their need for legal representation, the Department of Justice and the Corporation for National Community Service launched a grant program to recruit 100 attorneys and paralegals for the purpose of providing legal assistance in immigration proceedings to UACs. More information on the grant program, “justice AmeriCorps,” can be found here.

Workforce Investment Act Reauthorization Deal

On May 21, a bipartisan group of House and Senate negotiators announced a deal reconciling their differences in the Workforce Innovation and Opportunity Act (WIOA). The Act reauthorizes the Workforce Investment Act of 1998, which has been due for reauthorization since 2003, but has only received year-by-year extensions as Congress has failed to reach agreement on reauthorization. The Act authorizes spending for programs related to workforce development, employment services, adult education and vocational rehabilitation.

WIOA also reauthorizes the Adult Education and Family Literacy Act (Title II of WIOA). Among other purposes, the Adult Education and Family Literacy Act provides resources focused on helping immigrants learn English and acquire an understanding of U.S. history and government.

For Title II activities, the Act authorizes appropriations of $577,667,000 in fiscal year 2015, rising to $678,640,000 for fiscal year 2020. Each year, 12% of these amounts (minus funds that are set aside for national activities that provide technical and other assistance to states and providers) are set aside for integrated English literacy and civics education. Included in the definition of eligible providers are community-based organizations, faith-based organizations, and partnerships between providers and employers. Although these funds are set aside for “integrated English literacy and civics education,” the goal is to, “prepare adults who are English language learners for, and place such adults in, unsubsidized employment in in-demand industries and occupations that lead to economic self-sufficiency.”

A managers’ statement describes and summarizes the bill, and provides background. There is also a one-page summary of the bill (provided by the bill’s managers).

DHS Starts Accepting DACA Renewals

On June 5, Homeland Security Secretary Jeh Johnson announced that U.S. Citizenship and Immigration Services (USCIS) will now begin to accept applications for the renewal of Deferred Action for Childhood Arrivals (DACA). Individuals who have been granted DACA (as of March, there were more than 550,000 of these individuals) may renew for a period of two years. Individuals granted a renewal also will receive work authorization. Individuals who have not applied for an initial DACA grant may still do so; there is no deadline. USCIS encourages those who wish to renew to apply 120 days before their initial grant expires.

More information on the renewal of DACA can be found on the USCIS Web site here. (Information on how to make an initial application can be found here).

CBP Removes Internal Affairs Chief

On June 9, the head of the Office for Internal Affairs for Customs and Border Protection (CBP), James Tomsheck, was removed from his post. According to the Los Angeles Times, he is being replaced, on an interim basis, with Mark Morgan, FBI Deputy Assistant director for Inspections. The move came in response to allegations that Mr. Tomsheck’s office failed to properly investigate hundreds of complaints of abuse and mistreatment lodged against Border Patrol agents. His replacement, according to the Times is charged with taking a more aggressive approach in investigating Border Patrol abuses.

A report issued in May by the Immigration Policy Center analyzed information about more than 800 complaints lodged against Border Patrol agents between January 2009 and January 2012 and found that, among the cases in which a decision had been issued, 97% resulted in “no action taken.”

House Passes a Series of Anti-Trafficking Bills

On May 20, the House passed a package of bills to deal with the issue of human trafficking. The bills include H.R. 3550, the Justice for Victims of Trafficking Act, H.R. 3610, the Stop Exploitation Through Trafficking Act; H.R. 4058, the Preventing Sex Trafficking and Improving Opportunities for Youth in Foster Care Act; H.R. 4225, the Stop Advertising Victims of Exploitation; and H.R. 4573, the International Megan’s Law to Prevent Demand for Child Sex Trafficking.

Collectively, the bills would, among other things, allocate resources to assist victims of trafficking, increase penalties for traffickers, encourage states to expand protection for victims of trafficking, and increase communication between the U.S. and other countries regarding travel of sex offenders.

Status of Appropriations

On May 29, the House passed H.R. 4660, the Commerce, Justice, Science, and Related Agencies Appropriations (CJS) Act (summary). This bill provides funding for the Departments of Justice and Commerce, as well as for related agencies and for science programs. In this bill, the House included an increase (8 percent) in funding for the Executive Office for Immigration Review (EOIR). EOIR funds the nation’s immigration judges and courts, but has long been underfunded and therefore has a backlog of more than 360,000 cases. Over the past few years, funding for enforcement programs has greatly increased while funding for immigration courts has lagged behind. The increase in funding is welcome news. Also included in this bill is $180 million in funding for the State Criminal Alien Assistance Program, a program that the White House has been trying to eliminate in its budget but is very popular with many members of Congress.

On June 19th the Senate ended debate over the CJS bill without voting on final passage. CJS, which provides $51.2 billion in proposed discretionary budget authority including funding for the countries immigration courts and judges, had been combined with two other spending bills in an attempt to pass all three bills at once. However, Senators were unable to agree on the number of amendments that would be offered to the bill.

On June 11, the House Appropriations Committee approved its version of the Homeland Security appropriations bill. The bill allocates $8.3 billion for Customs and Border Protection (CBP). It requires that CBP maintain a Border Patrol of 21,370 agents. $412 million is allocated for border fencing, infrastructure and technology.

Immigration and Customs Enforcement (ICE) is allocated $5.5 billion. Of that amount, $5.4 million is set aside for “facilitating agreements consistent with section 287(g)” of the immigration act. The bill requires that ICE maintain a minimum of 34,000 detention beds. During markup an amendment was offered and then withdrawn that would have ended the detention bed quota.

U.S Citizenship and Immigration Services will receive nearly $125 million for the E-Verify Program. The House failed to include funding for the Office of Citizenship’s Integration grant program, but allows USCIS to divert up to $10 million from its Examinations Fee Account to fund the grants. Last year Congress did appropriate $2.5 million for this program which provides grants to non-profit to help legal permanent residents apply for citizenship.

The bill also includes an extra $78 million to help DHS respond to the surge in unaccompanied minors. Additionally, on June 10, the Labor, Health and Human Services Committee unveiled a bill which would include $1.94 billion in funding to cope with the surge in unaccompanied minors.

CBP Release of Use of Force Policies and Report

In February 2013, the Police Executive Research Forum (PERF) completed a report that was commissioned by CBP to examine the use of deadly force by CBP officers. The report raised a number of concerns, “especially with regard to shots fired at vehicles and shots fired at subjects throwing rocks and other objects at agents.” The organization recommended that agents be prohibited from shooting at vehicles “unless vehicle occupants are attempting to use deadly force … against the agent.” It also recommended agents be prohibited from shooting at subjects “throwing objects not capable of causing serious physical injury or death.” The report was not released by CBP until recently.

Release of the PERF report was accompanied by a revised use of force policy handbook. According to a press release from CBP, the new handbook “incorporates most of the recommendations found in the reviews by third parties—PERF and Department of Homeland Security’s Office of Inspector General.” The release also noted that, “CBP is undertaking a comprehensive review and redesign of its basic training curriculum [and] establishing a center of excellence to continuously evaluate use of force policy and procedures….”

The Forum’s Executive Director Ali Noorani published an op-ed in The Hill welcoming the releases by CBP while stating this first step will need to be followed up with action.

Department of Education Updates Guidance on Undocumented Students

On May 8, the Department of Education and the Department of Justice provided additional guidance to school districts concerning the acceptance of undocumented immigrants in schools. The guidance clarifies what documents school districts may require to prove residency in the district. According to the New York Times and other reports, the department was responding to a number of instances where schools were asking for visas or Social Security numbers from students and driver’s licenses from parents.

In a 1982 decision (Plyler v. Doe), the Supreme Court held that students cannot be denied public education on the basis of immigration status. Since the decision, school districts around the country have implemented various procedures to discourage the enrollment of undocumented children. In some cases, they have been sued by the government or outside organizations. The guidance is the latest in the federal government’s efforts to correct the behavior of the few districts that seek to evade the law.

Supreme Court Decisions

Keller v. Fremont, U.S. Supreme Court, No. 13-1043
By declining to hear the appeal of a decision by the U.S. Court of Appeals for the 8th Circuit, the Supreme Court let stand an ordinance meant to prevent undocumented individuals from renting apartments. In June 2013, the 8th Circuit Court held that the Fremont, Nebraska ordinance, which effectively barred landlords from renting to individuals unlawfully in the United States, does not conflict with federal law. The ordinance requires prospective tenants to obtain an occupancy license prior to renting. To obtain a license, prospective tenants must declare their immigration status, which is then checked against federal databases by local police. Those individuals found to be undocumented are stripped of their occupancy licenses, but suffer no further legal consequences.

Earlier this year, however, the Supreme Court declined to hear appeals of appellate court decisions striking down similar ordinances in Texas and Pennsylvania. Those laws, unlike the Nebraska law, imposed penalties on undocumented tenants and were held to be preempted by federal law. The Supreme Court’s action potentially paves the way for other jurisdictions to enact similar legislation. Kansas Secretary of State Kris Kobach, the author of the Nebraska ordinance and several other anti-immigrant ordnances across the United States (including Arizona’s SB 1070), has said that he intends to help other jurisdictions adopt similar measures.

Mayorkas v. Cuellar de Osorio, U.S. Supreme Court, No. 12-930
In a narrow 5-4 decision on June 9, the Supreme Court ruled that immigrant children who turn 21 or “age out” while their parents are awaiting visa relief will have to move to the back of the line to obtain their own visas. The majority sided with the Obama Administration in holding that the Court had to defer to the Board of Immigration Appeals’ (BIA) interpretation of the Child Status Protection Act. Finding BIA’s interpretation of the statute plausible, the court upheld BIA in only granting exceptions for “aged-out” children applying with their parents when “those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent.”

In declining to provide relief to the son of Rosalina Cuellar de Osorio, who was 13 when his mother applied for a visa, but had turned 21 by the time his mother was granted an available visa, the Court followed a line of cases granting extensive deference to interpretations by administrative agencies.

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