Policy Update: 2015 Off to a Rocky Start on Constructive Immigration Reform Efforts

Director of Policy and Advocacy

February 2, 2015

Republicans Face Off with Obama Over Executive Action

With both chambers of the 114th Congress now under Republican control, the new Congress quickly turned to immigration. As one of their  first agenda items, congressional Republicans sought to undo the executive orders of President Obama that will temporarily shield millions of otherwise law-abiding undocumented immigrants from being taken from their families and deported.

DHS Appropriations

At the end of last year, Congress passed annual spending bills to keep most of the government running through the end of the fiscal year (September 30, 2015). The exception was the Department of Homeland Security (DHS). That agency was funded only through February 27, to give Republicans time to craft a spending bill for the agency that would place restrictions on the use of money to carry out the executive actions announced in November 2014.

On January 14, 2015, the House passed a spending bill that would fund DHS through the end of the fiscal year. During debate on the floor, several amendments were added to roll back President Obama’s executive actions. Two of those amendments sought to cut funding for past and future immigration executive actions.

The first amendment, by Rep. Robert Aderholt (R-AL), would prohibit funds from any source (including fees) to be used to carry out the new executive actions announced in November or the Morton Memos of 2011 and 2012 focusing ICE resources on the removal of public safety and national security threats. It also prohibits funding any similar future action. The amendment passed by a vote of 237 to 190. The second amendment, by Rep. Marsha Blackburn (R-TN), would essentially eliminate Deferred Action for Childhood Arrivals (DACA). That amendment narrowly passed by a vote of 218 to 209, with 26 Republicans joining all Democrats in voting “no.”

The final bill—with these and other amendments added—passed by a vote of 236 to 191. The bill provides $8.5 billion for Customs and Border Protection. It specifies a level of 21,370 Border Patrol agents, and $382.5 million for border security fencing, infrastructure and technology. Immigration and Customs Enforcement would get $5.9 billion, and that includes, among other things, $5.4 million “to facilitate agreements consistent with section 287(g)” of the Immigration Act. It requires a minimum of 34,000 detention beds, with a total funding of $3.4 billion for enforcement, detention and removal operations. For U.S. Citizenship and Immigration Services, this bill authorizes the use of $10 million from the collection of immigration fees for the Office of Citizenship’s integration grants program.

The Senate will try to take up the spending bill this week, but one with the House amendments attached will not likely pass in the Senate. The Senate version of the DHS spending bill will need 60 votes to cut off any filibuster threat that might arise. On January 27, a letter signed by all Senate Democrats to Majority Leader McConnell called for a “clean” bill (one without the House amendments).

Repeal Executive Amnesty Act

In addition to the strategy of placing restrictions on the DHS spending bill, other legislation has been introduced that would counter old and new executive actions on immigration. The most draconian is a bill sponsored by Rep. Robert Aderholt (R-L), the Repeal Executive Amnesty Act (H.R. 191), introduced on January 7. This bill would go much further than the amendments tacked on to the DHS appropriations bill. Among other things, it would limit the administration’s ability to grant humanitarian and public interest parole, and to grant work authorization; it would deny funding (including fee-based funding) for the implementation various enforcement priority memos, for the DACA program, and for the various programs included in the president’s executive action announcement of November 20, 2014. It would make it much easier to quickly remove unaccompanied minors, and make it more difficult for them to remain in the U.S. It places further restrictions on eligibility for subsidies under the Affordable Care Act. The companion bill in the Senate is S. 129, introduced by Sen. Ron Johnson (R-WI).

Legal Challenges to Executive Action

On January 26, two more states joined a Texas lawsuit filed on December 3 of last year to block implementation of the president’s executive action. With the addition of Tennessee and Nevada, that brings a total of 26 states suing the administration. A hearing was held on January 15 in the U.S. District Court in Brownsville, Texas. The judge is expected to rule on the preliminary motion in early February.

Other states and cities are supporting the administration in the lawsuit.  On January 12, the Attorney General of Washington State, Bob Ferguson, filed a “friend of the court” brief in support of the president’s executive action on immigration. The brief was joined by the Attorneys General of California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont and the District of Columbia.

This battle between the states has been joined by cities. On January 23, the mayors of New York and Los Angeles announced plans for the filling of a “friend of the court” brief to support the administration’s executive action. More than 30 cities are represented on the brief, as well as the U.S. Conference of Mayors and the National League of Cities. Some of the cities are the largest population centers within the states that are suing the president, including Atlanta, Georgia; Houston, Texas; Salt Lake City, Utah; and Columbia, South Carolina. More cities are expected to join. Cities are opposing the states’ lawsuit in part because the cities have large immigrant communities and the president’s executive action is expected to boost their economies.

A separate lawsuit against the president’s immigration executive action, filed by Arizona Sheriff Joe Arpaio, has already been dismissed. Arpaio plans to appeal the ruling of U.S. District Court Judge Beryl Howell.

According to a January 27 article in the National Journal, House Speaker Boehner is also planning to sue the president over the executive actions, and one option being considered is to join the states’ lawsuit.

Federal Legislative Activities

House Committee Passes Border Security Bill

On January 21, the House Homeland Security Committee approved the Secure Our Borders First Act (H.R. 399). Unlike a bipartisan border bill that unanimously passed out of committee last year, when Homeland Security Committee Chairman Michael McCaul (R-TX) drafted the bill without Democratic input. H.R. 399 passed on a party-line vote of 18 – 12.

Among other things, the bill requires DHS to gain “operational control” and “situational awareness” of the border within five years. “Operational control” is defined as “the prevention of all unlawful entries into the United States. . . .” (emphasis added) (For more on operational control, see this Forum backgrounder.) A summary of the bill can be found on the Forum’s website.

Over the past two years, House Republicans have been unable to gain a consensus to move forward on immigration legislation. Despite initially being on the fast track to the House floor, the Secure Our Borders First Act has faced some of the same problems that have previously plagued House Republicans.

Being a partisan bill, Republicans leaders cannot count on Democratic votes. However, as this article from Roll Call summarizes well, the bigger problem is within the Republican caucus. A few moderate Republicans are afraid that the bill may result in a session that begins and ends with border security without tackling other pieces of the broken immigration system. They would rather not commit to voting on this bill without knowing that other bills will follow. Others, such as anti-immigrant leader Rep. Steve King (R-IA), are suspicious that this bill will lead to more legislation that will aim to fix our broken immigration system. In a variation of that theme, some are concerned that the border bill is meant to mollify conservatives so that a “clean” Homeland Security appropriations bill can pass without a standoff leading to a partial government shutdown.

Other Republicans believe the bill does not  do enough. For example, Sen. Jeff Sessions (R-AL) complained in a statement that the McCaul bill “does not include worksite enforcement; . . . does not close dangerous asylum and national security loopholes; . . . does not cut-off access to federal welfare” and other measures. Still other members (from northern border districts) complained about a provision that, if implemented within the timeframe specified, might cause large traffic backups at northern border points of entry.

For all these reasons, House leaders have postponed consideration of the bill, perhaps until the middle of February. A companion bill, S. 208, has been introduced in the Senate by Sen. Ron Johnson (R-WI).

Senators Introduce Bill High-Skilled Immigration Bill

One piece of legislation that has gained bi-partisan support would address the issue of visas for high-skilled workers. On January 13, a group of Senators, including Orrin Hatch (R-Utah) and Amy Klobuchar (D-MN), introduced S. 153, the Immigration Innovation Act. This bill would, among other things, increase the number of H-1B visas allotted annually; make it easier for foreign students studying in the U.S. to remain here after their studies; re-capture unused employment-based green cards from previous years and exempt immigrants with certain skills from the employment-based visa cap; and promote education in the fields of science, technology, engineering and math in the U.S. A summary provided by the authors can be found herehere.

Dramatic Changes in Senate Committee Leadership

On January 22, the Senate Judiciary Committee, the committee with policy jurisdiction over immigration, met to sort out its subcommittee assignments. Leadership of the Subcommittee on Immigration was given to the Senate’s leading immigration hard-liner, Jeff Sessions (R-AL) Another immigration hard-liner, David Vitter (R-LA), will be Deputy Chairman. In a release announcing his appointment, Sessions said his focus for the immigration subcommittee will be to first, “rally the nation behind an effort to halt the President’s unlawful amnesty.” Beyond that, Sessions says the subcommittee will

. . . give voice to those whose voice has been shut out: the voice of the dedicated immigration officers who have been blocked from doing their jobs; the voice of the working families whose wages have been reduced by years of record immigration; the voice of the American IT workers who are being replaced with guest workers . . . .

Earlier in January, Sessions put out an “Immigration Handbook for the New Republican Majority,” with chapters on “Executive Amnesty;” “Enforcement Collapse;” and “The Silicon Valley STEM Hoax” among others.

Sen. Charles Grassley (R-IA) will now chair the Senate Judiciary Committee. He recently outlined his priorities in a call with Iowa reporters.  About immigration, Grassley said he would like to wait for the House to act first, since the Senate spent so much time in the last Congress and the House did nothing.

The Senate Appropriations Committee will be led by Sen. Thad Cochran (R-MS). Sen. John Hoeven (R-ND) will lead the Homeland Security Subcommittee. Hoeven was co-author of the Corker-Hoeven amendment to the Senate immigration reform bill in the last congress. The amendment was crucial in winning significant Senate Republican support for the bill, allowing the bill to break a threatened Republican filibuster, but among other things, required the federal government to deploy an additional 20,000 Border Patrol agents to the southern border.

Federal Agency Developments

USCIS Announces Expanded DACA Date

As part of President Obama’s executive action, he expanded those eligible for the DACA program to those who entered the United States before the age of 16; lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007; and met all other DACA guidelines. It also removed the requirement to have been born since June 15, 1981 so they can now be any age. USCIS announced that it will begin accepting applications for its expanded DACA program beginning on February 18, 2015.

The date for when they will take applications for the new Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) has not been announced, but is expected to be in May.

White House Task Force on New Americans Seeks Ideas

The Task Force on New Americans established by President Obama as part of executive action is an interagency effort to develop a federal immigrant integration strategy that allows new Americans to contribute to society to their fullest potential and bring new Americans together with their receiving communities to strengthen communities.  The Task Force is seeking input for the plan they will be presenting to the President. They are especially seeking promising practices and examples of model programs. Ideas can be sent to NewAmericans@who.eop.gov by February 9th, 2014.

Apprehension and Removal Statistics Released

On December 19, 2014, the Department of Homeland Security released its official apprehension and removal statistics for the 2014 fiscal year that ended on September 30, 2014. In total, DHS removed or returned nearly 580,000 individuals. The Border Patrol made more than 486,000 apprehensions (a 16% increase from the year before), nearly all on the southern border. According to the release, 98% of removals and returns carried out by Immigration and Customs Enforcement (ICE) fell within one of the agency’s civil enforcement priorities. Removals conducted by ICE, at 315,943, were down 14% from the year before. More information on removals by ICE can be found here, and from CBP here. (Also, see this analysis of the latest statistics from the Cato Institute.)

Despite the increase in apprehensions at the border, the number of assaults against Border Patrol agents were down by 20% in 2014, marking the sixth year of decline in assaults against agents. Since 2008, assaults against agents are down by two-thirds.

State Developments

California Begins Issuing Drivers’ Licenses to the Undocumented

California legislation AB160, passed in 2013, provided for the issuance of drivers’ licenses to undocumented immigrants. After a regulatory process to work out details of implementation, the state began issuing licenses to undocumented immigrants on January 2 of this year. As of January 9, according to California Department of Motor Vehicles official statistics, more than 11,000 drivers’ licenses had been issued to undocumented immigrants. California has the largest population of undocumented immigrants in the U.S. (more than 2.8 million in 2012). The state anticipates there will be 1.4 million applications for drivers’ licenses for undocumented immigrants.

Federal Court Strikes Down Arizona Law Barring DREAMers from Receiving Drivers’ Licenses

On January 22, a federal judge ruled against an Arizona law barring DACA recipients from receiving drivers’ licenses. In issuing a permanent injunction, Judge David G. Campbell found that Arizona’s ban caused “irreparable harm” to young people, preventing these immigrants from pursuing their chosen career paths. The ruling followed earlier rulings halting the Arizona policy.

Colorado Budget Committee Rejects Funding for Drivers’ Licenses for the Undocumented

In Colorado, Republican legislators rejected a Division of Motor Vehicles (DMV) request for $166,000 in supplemental funding to process drivers’ licenses for undocumented residents. The vote by Republicans on the Joint Budget Committee (JBC) starves the DMV of needed funds and means that qualifying immigrants only will be able to obtain licenses at five of the state’s 56 DMV offices. Non-partisan JBC staff recommended that the committee pass the funding request and Colorado Democrats expected that Republican JBC members would vote in favor of the funding.

The vote by the Republican members of the JBC was harshly criticized by the Colorado Latino Forum and the Denver Post, which noted that the failure to fund the drivers’ licenses program could lead some applicants to wait decades for a license.

Anti-Dream Act Bill Fails in Virginia

In April 2014, Virginia Attorney General Mark Herring announced that immigrants protected by the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) could receive in-state tuition to Virginia colleges and universities. On January 20 of this year, a bill to reverse the Attorney General’s decision was defeated in the Virginia Senate. The bill, sponsored by Republican Senator Richard Black, would have barred individuals granted temporary legal status from receiving in-state tuition. There are an estimated 9,000 individuals with DACA protection in Virginia.