Obama's immigration directive

Floor Statement of U.S. Senator Chuck Grassley

Ranking Member of the Committee on the Judiciary

President Obama's Immigration Directive

Tuesday, July 17, 2012

Mr. President,

Last September, President Obama responded to amnesty proponents, denying that he had authority to unilaterally grant special status to individuals who may be eligible under the Dream Act.  The Dream Act has been around for a decade, and in varying forms.  It has been voted down several times by this body - and mostly because the Leader won't allow for an amendment process to improve the bill.  When asked by amnesty advocates to push the bill through executive order, President Obama said this:  "This notion that somehow I can just change the laws unilaterally is just not true.  The fact of the matter is there are laws on the books that I have to enforce.  And I think there's been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It's just not true.  We live in a democracy. You have to pass bills through the legislature, and then I can sign it."

But, one month ago, President Obama continued his "we can't wait" campaign and circumvented Congress, again, to significantly change the law on his own.  On June 15, he announced that the Department of Homeland Security would lay out a process by which immigrants here illegally could apply for relief and remain in the United States without the fear of deportation.  So, what has changed in the last nine months?

Before I dive into the details of how poorly planned and implemented this directive will be, I have to question the legal authority of the President to institute a plan of this magnitude.

I, along with 19 other senators, sent the President a letter and asked if he consulted with attorneys prior to the June 15 announcement about his legal authority to grant deferred action and work authorizations to a specific class of illegal immigrants. We asked the President if he obtained a legal opinion from the Office of Legal Counsel or anyone else in the administration.   To date, we have not received any documentation that discusses any authority he has to undertake this massive immigration directive.

I know that the Secretary of Homeland Security has discretion to determine who is put in removal proceedings.  Prosecutorial discretion has been around for a long time.  But, it hasn't been abused to this extent.  The President is claiming that the Secretary will implement this directive using prosecutorial discretion.  However, millions of immigrants here illegally will be instructed to report to the U.S. Citizenship and Immigration Service and proactively apply.  This is not being done on a case-by-case basis as they want to make it appear.

The President's directive is an affront to our system of representative government and the legislative process, and it's an inappropriate use of Executive power.  The President bypassed Congress because he couldn't lead on immigration reform, and he couldn't work in a bipartisan manner on an issue that involves undocumented young people.

The President's directive runs contrary to the principle that American workers must come before foreign nationals.  His policies only increase competition for American students and workers who struggle to find employment in today's economy.

According to the Bureau of Labor Statistics, the unemployment rate for young adults aged 16-24 has been nearly 17 percent for the last year.  According to a Gallup poll conducted in April of this year, 32 percent of 18- to 29-year olds in the U.S. workforce were underemployed.

The President's plan to get people back to work is to grant immigrants here illegally a work authorization.  He must be seriously out of touch if he doesn't think there's competition for American workers.

Now, I want to talk about how poorly this directive has been thought out.  It's my understanding that the White House informed Homeland Security officials of this plan days before they announced it on June 15.  They were unprepared, and have since been scrambling to figure out how it will be carried out.

U.S. Citizenship and Immigration Service - the agency in charge of all immigration benefits, including work authorizations, visa applications, asylum petitions, and employment verifications for employers - will be tasked with handling millions of new applications for deferred status and work permits.

Agents in the field are confused as to how to do their jobs, and fear retaliation if they don't do the right thing.  In essence, this White House is telling agents in the field to begin a practice called "catch and release."

Just last Friday, Homeland Security officials briefed the Judiciary Committee on the directive.   Staff was told that agents would be required to release immigrants here illegally if they fell into the criteria laid out.  But what are the ramifications if an agent does not release them, but instead, uses their discretion to say the person was not eligible and put them in removal proceedings?

DHS explained that such an agent would be subject to disciplinary action.  The agent's actions would be considered during their annual personnel review.  So, there will be no discretion for agents and they will be forced to give deferred action to anyone that comes close to the criteria laid out, even despite their hesitation to do so or face retaliation from bureaucratic higher ups.

It's as if Homeland Security forgot their mission --- which is "to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards where American interests, aspirations, and way of life can thrive."

Once we overcome the question of legal authority and the reality that there was little thinking put into this plan, we are left to oversee the details of the implementation plan.  Homeland Security officials say they will have a process laid out by August 15.  We have very little details, but Homeland Security officials did give some insight on Friday to members of the Judiciary Committee.  Here's what we learned:

We know that people under the age of 30, who entered before their 16^th birthday, have been here for five years, and are currently in school may qualify for deferred action.  We know that there are caveats to the criteria - some criminal offenses will be okay, and young people can finish their education after they are granted deferred action.  We know that individuals with final orders of removal will be eligible for deferred action.  We know that these people will not have to appear for an in-person interview to benefit from the directive.   We know they'll be granted this special status for two years, and those that are denied will not be put into removal proceedings.  We know this isn't aimed at helping just youth since the age limit is 30.

We know that people under the age of 30 are not the only people going to be considered for relief.  Secretary Napolitano said so herself.  She told CNN's Wolf Blitzer the following:  "We have internally set it up so that the parents are not referred for immigration enforcement if the young person comes in for deferred action."  I wasn't born yesterday --- this administration isn't going to give a benefit to an immigrant here illegally and then force his or her parents to leave the country.  Which begs the question, what will they do if the young person is eligible and receives deferred action but the parent is a criminal, a gang member, or a sex offender?

Because this program hasn't been well thought out, and because it's being rushed to benefit people by the end of the year, there's no doubt that fraud will be a problem.  How will federal officials who process the applications ensure that information provided by the individual is accurate?  How will they verify that one truly entered the country before the age of 16 or are currently under the age of 30?    Homeland Security officials act as though they're prepared to handle the influx of counterfeit documents that will be presented.  They are going to rely on their small fraud detection unit --- who is busy working everyday on other types of immigration benefits - to determine if people are truly eligible.  What will be the consequences for individuals who intentionally defraud the government?   They need a fraud and abuse prevention plan.  Without one, they'll likely legalize every single immigrant on U.S. soil that is here illegally.

The administration will announce more details about this plan in the next few weeks.  I'm anxious to see if they plan to only provide deferred action to this population.  Department officials refused to elaborate on whether some of these individuals will be able to get advanced parole - a special status that allows an immigrant here illegally to adjust to permanent resident, and then gain citizenship.  This administration wants people to believe that this isn't amnesty, and that these people will not have lawful status.  But, I'll be watching to see if they try to pull the wool over our eyes and provide a status that allows these people to adjust and remain here permanently.

Finally, a major flaw in the President's plan is how to pay for this massive amnesty program without requiring taxpayers to cough up their own hard earned dollars.  Department of Homeland Security officials said on Friday that illegal immigrants may not be charged for this special status.  The individual would be charged $380 if they choose to apply for a work authorization.  They could not assure us that funding would not be redirected from other programs to this initiative.  To reprogram funds within the Department, the Secretary must notify and gain the consent of the majority and minority leaders on the appropriations committee.  However, when pressed, Department officials could not assure us that they would not bypass that long-standing process and reprogram dollars on their own.  The U.S. Citizenship and Immigration Service will be forced to concentrate on this plan, leaving employers, foreign workers and legal immigrants without the service they need to work, visit, or remain in the U.S.   If agency adjudications staff will be diverted from their normal duties to handle the millions of potential deferred action applications, this can only have a devastating impact on other programs in the Department. I fear that this plan will bankrupt the agency that oversees immigration benefits, and it will affect all legal immigration for years to come.

Mr. President, I fear that the President has overstepped his authority again.  The President - time and again - has shown no leadership and refused to work with Congress on issues that directly impact the American people.  He insisted that he was going to change Washington.  But, he's changed them for the worse.  He insisted that he was going to make this the most transparent administration ever.  But, Congress and the American people are left in the dark.

No matter where one stands on immigration, we should all be appalled at how this plan has been carried out.  We should all be concerned that our votes are rendered meaningless.   Until we can end this plan, I encourage my colleagues to watch over its implementation, for the future of our country.  The integrity of our immigration system is hanging in the balance.

***

For Immediate Release

Tuesday, June 19, 2012

Senators Question President's Authority to Issue Immigration Directive

WASHINGTON - Senator Chuck Grassley is leading a group of ## senators  in questioning the directive announced last week by President Obama to grant deferred action to illegal immigrants and asking for a full accounting from the President of his legal authority to issue such a directive, how the executive action will be implemented and administered, and the cost to taxpayers.

In a letter sent to the President this afternoon, the senators asked for written responses to a list of detailed questions and a briefing from the administration officials who will be responsible for the program:  Secretary of Homeland Security Janet Napolitano, U.S. Immigration and Customs Enforcement Director John Morton, and U.S. Citizenship and Immigration Service Director Alejandro Mayorkas.

Grassley's letter was signed by Senators Mitch McConnell of Kentucky, Orrin Hatch of Utah, Mike Crapo of Idaho, James Risch of Idaho, Saxby Chambliss of Georgia, Johnny Isakson of Georgia, John Boozman of Arkansas, Jim DeMint of South Carolina, Thad Cochran of Mississippi, Roger Wicker of Mississippi, David Vitter of Louisiana, Mike Johanns of Nebraska, Pat Roberts of Kansas, Mike Lee of Utah, Mike Enzi of Wyoming, and Tom Coburn of Oklahoma.

Click here for a signed copy of the letter.  The text of the letter is below.

June 19, 2012

President Barack H. Obama

The White House

1600 Pennsylvania Avenue NW

Washington, D.C.  20500

Dear President Obama:

We are extremely concerned by your announcement last week that the Department of Homeland Security plans to implement a program that grants deferred action to an untold number of illegal immigrants in the United States, and to allow them to receive work authorization during this time of record unemployment.  Not only do we question your legal authority to act unilaterally in this regard, we are frustrated that you have intentionally bypassed Congress and the American people.

As President, you swore to uphold and defend the Constitution and enforce the laws.  Your recently announced directive runs contrary to that responsibility.  Not only is your directive an affront to our system of representative government and the legislative process, but it is an inappropriate use of Executive power.

Your position on whether you have the legal authority to act unilaterally has changed dramatically.  Just last year, you personally disputed the notion that the Executive Branch could act on its own and grant benefits to a certain class of illegal immigrants.  Specifically, you stated,

"This notion that somehow I can just change the laws unilaterally is just not true.  The fact of the matter is there are laws on the books that I have to enforce.  And I think there's been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It's just not true.  We live in a democracy. You have to pass bills through the legislature, and then I can sign it."

• Why has your position on the legal authority of the Executive Branch changed?
• Did you consult with attorneys prior to the announcement about your legal authority to grant deferred action and work authorizations to a specific class of illegal immigrants?
• Did you obtain a legal opinion from the Office of Legal Counsel or anyone else in the administration about your legal authority to implement such a program?
• Please provide copies of any documentation, including any and all legal opinions, memoranda, and emails, that discusses any authority you have or do not have to undertake this immigration directive.

We are also concerned that the directive being implemented allows individuals under the age of 30 to obtain a work authorization.  According to the Bureau of Labor Statistics, the unemployment rate for young adults aged 16-24 has been nearly 17% for the last year.  According to a Gallup poll conducted in April of this year, 32% of 18 to 29 year-olds in the U.S. workforce were underemployed.  Your directive runs contrary to the premise that American workers must come before foreign nationals.  It is astonishing that your administration would grant work authorizations to illegal immigrants during this time of record unemployment.  Your directive will only increase competition for American students and workers who struggle to find employment in today's economy.  Moreover, under current law, some foreign students and other legal visa holders are prohibited from obtaining work authorizations, giving illegal immigrants an advantage over those who play by the rules.

The implementation of your directive raises several serious questions.

• What will happen if your directive is challenged in court?
• Will individuals who have applied for deferred action be required to leave the U.S. if such a challenge is upheld?
• How will the administration handle family members, specifically the parents who violated federal immigration law?
• Will individuals who entered the U.S. on their own volition - either by crossing the border illegally or overstaying a visa - be eligible for deferred action?
• Why does the directive allow individuals up to age 30 to benefit from deferred action if the directive is aimed at helping young people and students?
• How will federal officials who process the applications ensure that information provided by the individual is accurate and how will they verify that one truly entered the country before the age of 16 or are currently under the age of 30?
• Will evidence submitted in support of deferred action applications be limited to independently verifiable government-issued documents (e.g., school records, W-2s, tax returns)?  If not, why not?  If affidavits will be accepted, will they be required to be made under penalty of perjury?  If not, why not?
• Will illegal immigrants be required to appear in person for an interview by the federal government before deferred action is granted?
• How will the agency implementing the program ensure that fraud and abuse is prevented?
• What will the consequences be for individuals who intentionally defraud the government?
• Which databases will be used and how will background checks be conducted to ensure that individuals do not have a criminal history or pose a threat to public safety?
• What would constitute a "significant" misdemeanor offense, which is one of the criteria for eligibility for deferred status?
• Will individuals with final orders of removal be eligible for deferred action?
• What action will the administration take if an individual is denied deferred action?
• What action will be taken if an individual is granted deferred action, but subsequently abuses that grant, is arrested, is found to be a member of a criminal gang, or does not actually attend school?
• Absent congressional action, what will happen in two years to the individuals who are granted deferred action?
• Will recipients of deferred action be eligible for receipt of advance parole?
• What criteria will be used to decide who gets work authorizations and who does not?
• Which other departments and agencies will be consulted and will work with the Department of Homeland Security on the implementation of this directive?

We also believe that taxpayers deserve to know how this program will be funded.

• Can you assure us that the total implementation cost of the program will be paid for by the individuals seeking to benefit, or will U.S. taxpayers subsidize any part of the program?
• How much, if anything, will an illegal immigrant be required to pay in order to obtain deferred action?
• What legal authority does the Executive Branch have to mandate a fee for this service? We understand that the Department has never previously charged a fee for the processing of a request for deferred action.
• Do you plan to reprogram funds at the Department of Homeland Security or any other Executive Branch agency to help fund the implementation of the directive?
• If you plan to use funds that already have been appropriated or other funds from the Department, please explain which programs will be reduced in order to cover the costs associated with the directive.
• If USCIS adjudications staff will be diverted from their normal duties to handle the millions of potential deferred action applications, what will be the impact on other USCIS programs?

Given that this directive is effective immediately and that many questions remain unanswered, we ask that you immediately make available Department of Homeland Security Secretary Janet Napolitano, U.S. Immigration and Customs Enforcement Director John Morton and U.S. Citizenship and Immigration Service Director Alejandro Mayorkas to respond to our concerns.  We would appreciate responses to our questions, including any relevant documentation related to this directive, no later than July 3, 2012.

Sincerely,

Chuck Grassley of Iowa

Mitch McConnell of Kentucky

Orrin Hatch of Utah

Mike Crapo of Idaho

James Risch of Idaho

Saxby Chambliss of Georgia

Johnny Isakson of Georgia

John Boozman of Arkansas

Jim DeMint of South Carolina

Thad Cochran of Mississippi

Roger Wicker of Mississippi

David Vitter of Louisiana

Mike Johanns of Nebraska

Pat Roberts of Kansas

Mike Lee of Utah

Mike Enzi of Wyoming