FAIR Legislative Update

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FAIR Legislative Update November 22, 2010






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Reid, Pelosi Prepare for Lame-Duck Votes on DREAM Act

In a statement last Wednesday, Senate Majority Leader Harry Reid (D-NV) promised a vote on the DREAM Act during the lame-duck session. (Politico, Nov. 18, 2010) “I will move the DREAM Act as a standalone bill in the lame duck,” Reid wrote on his Twitter account. (Politico, Nov. 17, 2010) “It’s good for the economy & Pentagon says good for [national] security.” (Id.) Reid’s promise came the day after Congressional Hispanic Caucus (CHC) Chairwoman, Rep. Nydia Velazquez (D-NY), announced that House Speaker Nancy Pelosi has tentatively set a vote on the DREAM Act for as soon as November 29th. (Capital Wire PR, Nov. 16, 2010) Later that day, President Obama also reaffirmed his commitment to seeing an amnesty bill passed during the lame-duck session. While meeting with members of the CHC he remarked that he wants the DREAM Act passed during lame-duck as a “down payment” for further amnesty bills. (Politico, Nov. 17, 2010; See also FAIR’s summary of the DREAM Act)



In a last ditch effort to gain more votes, Sen. Reid placed two new versions of the DREAM Act, introduced by Sen. Dick Durbin (D-IL), on the Senate calendar Thursday morning. (CQ Today¸ Nov. 19, 2010) Both versions (S. 3962, S. 3963) eliminate a provision that allows states to grant in-state tuition to illegal aliens. (Id.) One of the versions (S. 3963) also reduces the age limit from 35 to 30 years, although the provision in the DREAM Act providing retroactive benefits to illegal aliens of any age make this particular maneuver meaningless.



In an effort to educate his colleagues on the consequences of passing the DREAM Act, Sen. Jeff Sessions (R-AL), the ranking Republican member on the Senate Judiciary Committee, circulated an alert on the DREAM Act. Sen. Sessions points out some of the key flaws in the DREAM Act legislation, including:



The DREAM Act grants amnesty to certain criminal aliens—such as those who failed to attend their removal proceedings, have engaged in voter fraud, and have engaged in marriage fraud;

The DREAM Act does not actually require the completion of any educational degree program from an institution of higher education (including vocational schools and community colleges), but rather a beneficiary must prove only that he or she has finished two years of course work within eight years of the grant of LPR status.

Sessions also points out that the DREAM Act prohibits the use of any information contained in the amnesty application from being used to prosecute or initiate removal proceedings who have engaged in fraud in the application process.



On the House side, the latest reports from Capitol Hill claim that the DREAM Act may appear as an amendment to the Help Haiti Act of 2010 (H.R. 5283)—a bill that grants green cards to about 1,400 Haitian orphans while they are in the process of being adopted by Americans. (CQ Today, Nov. 17, 2010) Rep. Jeff Fortenberry (R-NE), the original sponsor of the Help Haiti Act, denounced the tactic, stating that his Act “is about helping the children in the wake of the earthquake” and should be passed “free of unrelated, controversial measures.” (Id.) The House version of the DREAM Act (H.R. 1751), is similar to the Senate versions but has no age limit.



Even if Sen. Reid and Speaker Pelosi fulfill their promises and bring the DREAM Act to the floor, opponents hope to block the bill from ever reaching a vote. Sen. Orrin Hatch (R-UT) wants the bill to be open to amendments by Republicans—something that Sen. Reid prohibited last time the bill was up for a vote. (National Journal, Nov. 18, 2010) If Sen. Hatch gets his wish, the amendments could take up what little time the Senate has left before the new Congress takes office. (Id.) Both the Senate and the House are adjourned until the afternoon of Monday, November 29th, with numerous spending bills on their plate and promises for the passage of several controversial measures unfulfilled.



California Supreme Court Upholds In-State Tuition for Illegal Aliens

Last Monday, the California Supreme Court unanimously decided to uphold a California law that makes illegal aliens eligible for in-state tuition at California universities and community colleges. The California legislature enacted the statute making illegal aliens who have completed three years of high school in California eligible for in-state tuition in 2002. Shortly thereafter, numerous American citizens who paid nonresident tuition rates at California schools sued the California University system –with the assistance of FAIR and its legal arm, the Immigration Reform Law Institute – on the grounds that the California statute violated federal laws.



Plaintiffs argued that the California statute conflicts with federal law, specifically 8 U.S.C. § 1623 (Section 505 of IIRAIRA), which was passed in 1996. That law provides:



“[A]n alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State … for any post-secondary education benefit unless a citizen or national of the United States is eligible … without regard to [residence].”



Because the California statute allows illegal aliens to receive in-state tuition yet denies the same to American citizens who do not live in California, the plaintiffs asserted that the statute was preempted by federal requirements, and thus must be struck down. The California Supreme Court disagreed.



The court addressed two major arguments made by the plaintiffs. The plaintiff’s first argument was that the California law is expressly preempted by the federal statute—that is, the text of the California law itself is inconsistent with federal law. The court rejected this argument, pointing out that 8 U.S.C. § 1623 only prohibits states granting in-state tuition to illegal aliens based on residence. The court determined that the California statute was not based specifically on residence, but rather primarily upon the completion of three years of high school in California. They reasoned that because there could be a variety of individuals who attend high school in California for three years but are not residents of the state (boarding students, for example), the California statute was not based on residence.



Plaintiffs’ also argued that the California law was impliedly preempted by federal law. Plaintiffs argued that by passing a specific statute on in-state tuition, Congress intended to preempt the states from legislating on the issue of in-state tuition for illegal aliens. The court was quick to dismiss this argument, stating that another federal statute, 8 U.S.C. § 1621, permits states to grant benefits to illegal aliens if the state passes a law affirmatively doing so. The court, without explanation, also rejected the plaintiffs’ argument that the California law was impliedly preempted because it stood as an obstacle to Congress’s intent.



The California Supreme Court’s decision for the moment allows the state of California to continue to use taxpayer dollars to subsidize tuition for illegal aliens while the state is suffering under a crushing deficit. Last week Governor Schwarzenegger called a special session of the state legislature to address a six billion dollar deficit only five weeks after he signed the state’s budget into law. (NPR, Nov. 11, 2010) This week, University of California leaders announced it is raising tuition by eight percent, costing the average student 823 dollars. (Oakland Tribune, Nov. 18, 2010)



IRLI counsel Kris Kobach, who represented the plaintiffs, promised to appeal this decision to the United States Supreme Court. Per its usual discretionary practice, the Supreme Court may or may not decide to take the case. If it doesn’t, the California Supreme Court’s decision will stand and taxpaying citizens will continue to underwrite the cost for illegal aliens to attend college in California. Moreover, the California Supreme Court’s decision may encourage other states to pass laws similar to California’s—whether they can afford it or not, and regardless of whether it further encourages illegal immigration. Currently, ten states allow illegal immigrants reduced in-state tuition rates.



Members of Congress are already contemplating ways to amend federal law to overturn the California Supreme Court’s decision. Earlier this year, Congressmen Todd Tiahrt (R-KS), Rodney Alexander (R-LA), Brian Bilbray (R-CA) and Duncan Hunter (R-CA) introduced the “Fairness for American Students Act.” If enacted, the bill would make clear that states may not grant in-state tuition to illegal aliens under any circumstances.



Rhode Island Governor-Elect to Rescind Immigration Enforcement Order

Rhode Island Governor-elect, Lincoln Chafee, announced last week that he intends to rescind an executive order that promotes immigration enforcement within the state. Under the order, state agencies and contractors must use E-Verify to ensure the work authorization of employees. The order also requires state police to enter into a 287(g) agreement to assist Immigration and Customs Enforcement (ICE) in the enforcement of U.S. immigration laws. (Executive Order, Mar. 27, 2008) By rescinding the order, Mr. Chafee, who ran as an independent, is fulfilling a campaign promise he made to local pro-amnesty organizations. (The Boston Globe, Nov. 16, 2010)



Chafee’s predecessor, Governor Donald Carcieri signed the executive order in 2008 to address the local problems stemming from illegal immigration. In the text of the executive order, Carcieri stated that he was implementing such measures because of the “burden on the resources of state and local human services, law enforcement agencies, educational institutions and other governmental institutions” caused by illegal immigration. (Executive Order, Mar. 27, 2008) At the time, Rhode Island was home to about 40,000 illegal aliens and faced an estimated $550 million budget deficit, its worst financial crisis in decades. (Pew Hispanic Center, April 26, 2006; Fox News, March 28, 2008) FAIR estimates that the current cost of illegal immigration to the state is $173 million annually. (FAIR, Immigration Impact: Rhode Island)



Open borders organizations have been fighting the executive order ever since Carcieri signed it, objecting in particular to local enforcement of immigration laws. The Rhode Island ACLU says the State Police’s efforts are leading to racial profiling. (The Boston Globe, July 6, 2010) Similarly, Rhode Island Latino PAC director Doris De Los Santos said the police should be spending its time on other matters and that the executive order “create[s] an environment that is not conducive to progress, that has the potential for racial profiling, and that makes people less likely to report crimes for fear of being deported themselves.” (The Providence Journal, Nov. 20, 2010)



Meanwhile, state law enforcement agencies have lauded the executive order that helps them fight illegal immigration. The Commander of the Rhode Island State Police, Supt. Col. Brendan P. Doherty, argues that statistics prove that the order is working. Since the order took effect, 92 individuals were checked through ICE databases, and over half were found to be illegal aliens, some with criminal histories. (Id.) “I would feel that I’m derelict in my duties to look the other way, ’’ said Commander Doherty. (Id.)



Despite the success of the program and Rhode Island’s continuing financial difficulties, Chafee has remained firm in overturning the order as one of his first actions in office. (The Providence Journal, Nov. 16, 2010; The Boston Globe, Nov. 16, 2010) “It has ostracized our Latino communities and has proved ineffective,” Chafee said. (The Providence Journal, Nov. 20, 2010)



Durham, NC to accept Mexican Document as ID

Last week the Durham, North Carolina City Council approved a resolution allowing police to accept the Mexican matricula consular identification card as a valid form of ID used by Mexican nationals. (News 14 Carolina, Nov. 16, 2010) With this five-to-two vote, the Durham City Council’s decision allows illegal aliens to evade arrest when caught in traffic stops or other offenses where a lack of a driver’s license may lead to arrest (Durham police typically issue a ticket to someone driving without a license instead of arresting them so long as they have some other form of ID). (digtriad.com, Nov. 16, 2010) (Matricula Consular Resolution, PR#7442, Nov. 15, 2010)



The FBI has long considered the matricula consular card an insufficient form of identification that poses national security concerns. According to congressional testimony by Steve McCraw, who served as Assistant Director of the Office of Intelligence at the FBI, the Mexican government has no centralized database to coordinate the issuance of consular ID cards, thus allowing multiple cards to be issued under the same name, address, or with the same photograph. (Congressional Testimony, June 26, 2003) McCraw further testified that the Mexican government issues the card to anyone who can produce a Mexican birth certificate and one other form of identity, only encouraging a flourishing fraudulent document trade. (Id.) For example, in 2002, Washington state police uncovered a document production operation where a large cache of fake Mexican birth certificates were discovered and were believed to have been produced to meet the demand for fraudulently-obtained matricula consular ID cards. (Id.) McCraw also noted that many individuals discovered by federal authorities to be in possession of fraudulent Mexican matricula consular ID cards are not Mexican nationals. (Id.)



Furthermore, in cities such as Durham, the illegal aliens whose immigration status would normally be discovered if arrested (due to immigration enforcement programs such as Secure Communities) will now continue residing in the U.S. illegally because they will no longer be taken into custody for not having ID.



Secure Communities—an Immigration and Customs Enforcement (ICE) program designed to identify illegal aliens by running fingerprints of arrestees through FBI and the Department of Homeland Security (DHS) databases—has been very successful in discovering illegal aliens since its implementation. (ICE Website, Nov. 19, 2010) In fact, DHS Secretary Janet Napolitano attributed the majority of the agency’s deportations this last year to the program, saying that it played a “major part of the increase in criminal removals.” (ICE/DHS Press Release, Oct. 8, 2010) However, because cities who accept the matricula consular card will no longer be arresting illegal aliens who lack ID, effective immigration enforcement programs like Secure Communities are undermined.



The Durham City Council, however, has ignored these objections of federal law enforcement officials. In the newly adopted ordinance, it states, “the Mexican Matricula Consular has been shown to be a highly secure form of identification,” and that “acceptance of the Matricula Consular as a valid form of ID would not only assist in minimizing unnecessary and potentially life-changing arrests of hard-working residents guilty of no more than a minor traffic infraction, but would also be useful for banking, library, and other civil functions.” (Matricula Consular Resolution, PR#7442, Nov. 15, 2010)



The Mexican Consulate and El Centro Hispano, the largest grassroots Latino organization in North Carolina, lobbied heavily for passage of the resolution. (ABC News, Nov. 10, 2010) Ronald Garcia, a member of the latter, claimed that in the case of someone pulled over without proper ID, the card could help them avoid a lengthy legal process. (Id.) He argued that accepting the Mexican matricula consular card will prevent police from “[d]etaining and processing and then deporting people who haven’t really committed a crime.” (Id.) “Maybe they don’t have all their papers in order, but that’s really a part of our broken immigration system,” he remarked. (Id.) Hans von Spakovsky, a former civil-rights attorney at the U.S. Department of Justice who is now a senior legal fellow at the Heritage Foundation stated that the cards “are so rife with fraud, it’s ridiculous.” (Lincoln Tribune, Oct. 26, 2010) According to von Spakovsky, “No major bank in Mexico accepts the cards. Twenty-two out of 32 Mexican states reject it.” (Id.)



In adopting its resolution to accept the cards, Durham joins the nearly 400 cities and 1,200 police departments who accept the Mexican matricula consular ID card as a form of valid identification. (digtriad.com, Nov. 16, 2010)