WEEKLY IMMIGRATION REPORT, APRIL 5, 2016 EXECUTIVE AMNESTY HEADS TO COURT

From the Federation for American Immigration Reform

• Executive Amnesty Case Arguments Start Soon
• Administration’s High DACA Approval Rates May Impact Supreme Court Decision
• FAIR Highlights Several Recently Introduced House Immigration Bills
• Tennessee Committee Advances Bill to Authorize Refugee Resettlement Lawsuit

Executive Amnesty Case Arguments Start Soon

On Monday, April 18, the U.S. Supreme Court will hear arguments in U.S. v. Texas, the 26 state lawsuit challenging President Obama’s November 2014 executive amnesty. Specifically, the high court will decide whether to uphold the injunction blocking Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) until the case is litigated on the merits. The unexpected passing of Justice Antonin Scalia has set up the potential for a 4-4 split vote. In the event of a tie vote, the lower court’s decision stands — meaning the injunction stays in place. However, a split vote means there is no precedent set and the Court will unlikely include an analysis when rendering the decision. This is noteworthy because, in addition to the points raised by the Obama administration on appeal, the justices asked the parties to brief and argue whether DAPA and expanded DACA “violates the Take Care Clause of the Constitution, Art. II, §3.” (See FAIR Legislative Update, Feb. 23, 2016) The Take Care Clause mandates that the president “take care that the Laws be faithfully executed” and there is evidence that Obama breached his constitutional duty. (Id.)

FAIR believes U.S. v. Texas is the most important case the Supreme Court will decide this year. “Should the Court lift the injunction and endorse the administration’s wildly broad claims of unlimited power to permit millions who are outside the rules stipulated by the Immigration and Nationality Act (INA) to remain here, then Congress and the American people will be left without remedy in the face of an unprincipled executive who willingly refuses to carry out his legal and constitutional responsibilities,” said Dan Stein, FAIR’s president. (SCOTUSblog, Feb. 9, 2016) At stake is whether the President can unilaterally grant work authorization and legal presence to 4.7 million illegal aliens, nearly 40 percent of the estimated 12 million in the country unlawfully. Stein added, “Needless to say, when the Supreme Court delivers its ruling in June the implications for U.S. immigration policy will be profound. What is at stake is nothing less than the entire premise of more than a century of immigration policy: Namely, the legitimacy of laws that restrict immigration in order to protect the social, economic, and security interests of the American people.” (Id.)

The Immigration Reform Law Institute (IRLI), FAIR’s legal affiliate, filed two amicus briefs yesterday with the Supreme Court arguing that the administration lacks the authority to implement DAPA and expanded DACA. FAIR will be producing new content on the case weekly until the Supreme Court issues a ruling in June. Stay tuned to FAIR’s U.S. v. Texas Resource Page and IRLI.org.

Administration’s High DACA Approval Rates May Impact Supreme Court Decision

The Obama administration’s rubber-stamping of Deferred Action for Childhood Arrivals (DACA) applications might backfire as the Supreme Court considers U.S. v. Texas. As of December 2015, nearly 715,000 illegal aliens had been approved for the original DACA amnesty program and fewer than 55,000 had been rejected — an outrageous 93 percent approval rate. (Washington Times, Mar. 27, 2016) However, this high approval rate could pose a problem as the Obama administration defends its Deferred Action for Parents of Americans (DAPA) and expanded DACA amnesty programs before the high court. Specifically, the administration will face obstacles showing that it “didn’t rewrite immigration laws” but merely “offered guidance” to immigration officials about how to prioritize enforcement. (Id.)

Under the guise of “prosecutorial discretion” and limited resources, President Obama announced the DACA amnesty program while seeking reelection in 2012. While so-called Dreamers were unlikely to be deported under the President’s enforcement “priorities,” DACA grants a reprieve from deportation, provides work authorization for two years, and makes certain illegal alien minors eligible for some taxpayer benefits. (See FAIR Legislative Update, June 19, 2012; see also DACA Guidelines)  After the initial two-year period, DACA recipients must file to renew their applications. According to the latest Homeland Security statistics, the renewal approvals are 99.3 percent. (Washington Times, Mar. 27, 2016)

The expansion of DACA and the creation of DAPA are subject to the litigation in U.S. v. Texas. After the Democrats were crushed in the 2014 election, which was a referendum on his immigration policy, President Obama ignored the will of the American people by expanding DACA to a three-year renewal process and changing the criteria to increase the numbers eligible for DACA. He also unilaterally created the DAPA amnesty program for the illegal alien parents of U.S. citizen and legal permanent resident children. (FAIR Legislative Update, Nov. 24, 2014) In response, Texas and 25 other states sued the administration.

The DACA approval rate has become an issue because it goes to whether immigration officials will have discretion to deny the DAPA and extended DACA applications. Texas District Court Judge Andrew Hanen and the majority on the 5th U.S. Circuit Court of Appeals said the high approval rates show that President Obama wrote new policy to create DACA and DAPA. Judge Hanen specifically rejected President Obama’s argument that he was only issuing guidelines to carry out existing law. (Washington Times, Mar. 27, 2016) This assertion is bolstered by the administration’s own actions. The U.S. Citizenship and Immigration Services (USCIS) web site even provides additional tools to aid illegal aliens during the DACA application process including a “tip sheet” to walk illegal aliens through a check-list before they submit their application. The web site goes as far as reminding illegal aliens to make sure all forms are properly signed, the correct filing fee is paid, and that no field is left blank. (See FAIR Legislative Update, Nov. 26, 2012; see also Filing Tips for Deferred Action for Childhood Arrivals, Nov. 19, 2012)

FAIR Highlights Several Recently Introduced House Immigration Bills

FAIR’s Government Relations team has released summaries of several positive House immigration bills. We encourage all of our members to review these summaries and learn more about legislative attempts that would affect the nation’s immigration policies.

H.R. 4731 — REFUGEE PROGRAM INTEGRITY RESTORATION ACT OF 2016

H.R. 4731, introduced by Congressman Raul Labrador (R-ID), would restore Congressional authority over refugee admissions. Among other things, the bill establishes an annual cap of 60,000 refugee admissions and prevents the Department of Homeland Security (DHS) from unilaterally waiving most grounds of inadmissibility when determining eligibility for refugee status. The bill was marked up (amended) and ordered to be reported by the House Judiciary Committee on March 16, 2016. FAIR supports H.R. 4731 and our bill summary can be found here.

H.R. 4847 — CORRECTING UNFAIR BENEFITS FOR ALIENS ACT OF 2016 (CUBA ACT)

H.R. 4847, introduced by Congressmen Henry Cuellar (D-TX) and Blake Farenthold (R-TX), seeks to ensure that Cuban nationals are treated under the same immigration policies as nationals of other countries with which the United States has diplomatic relations. The bill has been referred to the House Judiciary Committee, the House Ways and Means Committee, and the House Education and the Workforce Committee. FAIR supports the CUBA Act and our bill summary can be found here.

H.R. 4722 — REFUNDABLE CHILD TAX CREDIT ELIGIBILITY VERIFICATION REFORM ACT OF 2016

H.R. 4722, introduced by Congressman Sam Johnson (R-TX), would amend the Internal Revenue Code to require taxpayers to submit Social Security numbers, not Individual Tax Identification Numbers (ITINs), in order to receive the refundable child tax credit. The bill was reported by the House Ways and Means Committee on March 23, 2016 and awaits consideration on the House floor. FAIR supports H.R. 4722 and our bill summary can be found here.

Tennessee Committee Advances Bill to Authorize Refugee Resettlement Lawsuit

The Tennessee House of Representatives’ State and Local Government Committee approved Senate Joint Resolution 467 (SJR 467) on March 29, which calls for legal action against the federal government’s resettlement of refugees in the state. (Breitbart, Mar. 31, 2016) Although the State of Tennessee withdrew from the federal Refugee Resettlement Program in 2007, the federal government has continued to actively place refugees in Tennessee, allegedly in violation of federal law. (Id.)

In general, while only the federal government may decide who can enter the United States as a refugee, federal law requires cooperation between federal, state, and local governments when it comes to the resettlement of refugees. (See 8 U.S.C. § 1522(a)(2)) In fact, federal law states that the federal government “shall consult” with state and local governments and voluntary non-profit agencies “concerning the sponsorship process and the intended distribution of refugees among the states and localities before their placement…” (See 8 U.S.C. § 1522(a)(2)(A)) In doing so, the federal government is required to develop strategies in consultation with state and local governments and take into account the recommendations of the state to the “maximum extent possible.” (Id. § 1522(a)(2)(D))

SJR 467 seeks legal action against the federal government on two key grounds. First, it claims the federal government violates the above federal law by failing to consult and cooperate with state and local governments in the resettlement of refugees. Second, the resolution claims the federal government’s placement of refugees in the state violates the Tenth Amendment of the United States Constitution, which reserves powers not expressly given to the federal government to the people or the states. (SJR 467) Notably, the resolution reasons that because the state opted out of the Refugee Resettlement Program in 2007 and current federal law requires Tennessee to provide public benefits and services, including Medicaid services, to otherwise eligible refugees, the state is being unconstitutionally forced to spend state resources. (Id.; 8 U.S.C. § 1612; 42 U.S.C. § 1396(c))

Tennessee is not the only state to consider legal action against the federal government over refugee resettlement. (FAIR Legislative Update, Dec. 8, 2015; Associated Press, Jan. 7, 2016) The State of Texas and the State of Alabama both filed separate lawsuits against the federal government in this past winter for allegedly violating federal law by failing to consult with the State regarding the resettlement of Syrian refugees within both states. (Id.)

SJR 467 was introduced in the Tennessee General Assembly in January with widespread support and currently has over 70 cosponsors in the state House. (Breitbart, Mar. 31, 2016) The Tennessee Senate passed the resolution in February and it must still be approved by the House Finance, Ways, and Means Committee before it can be voted on by the full State House. If SJR 467 makes it to a floor vote in the House, it is expected to pass. The resolution is significant because under Tennessee law, the General Assembly has the authority to unilaterally initiate a lawsuit.