FAIR Legislative Update 04-02-2008

April 2, 2008 

In this update:

• Homeland Security Releases Revised "No-Match" Rules
• Homeland Security Issues Final Rule for Western Hemisphere Travel Initiative
• At Least 304,000 Criminal Alien Inmates Eligible for Deportation
• Rhode Island Governor Signs Order Targeting Illegal Immigration
• Recent FAIR Statements

Homeland Security Releases Revised "No-Match" Rules

On Friday, March 21, the Department Homeland Security (DHS) released revised rules for employers who receive "no-match" letters from the Social Security Administration (SSA). Homeland Security issued the revised rules in response to a federal court injunction that stopped an earlier version from taking effect. No-match letters are notices sent by the SSA to employers, warning them that an employee's name and social security number do not match the Administration's records.

In August 2007, DHS first promulgated no-match letters requiring that employers who receive them take affirmative steps to have the employee resolve the no-match or terminate the employee. The rule was barely in place when several organizations, including the ACLU, the AFL-CIO, and the U.S. Chamber of Commerce, challenged them and persuaded the federal district court in San Francisco to issue an injunction, barring the rules from taking effect. That federal court decision determined that Homeland Security has the authority to require employers to ensure that listed employees are not illegal aliens, but held that the agency had made several technical errors in promulgating the rule. These three errors identified by the court were that Homeland Security:

1. Failed to adequately explain its change of position on "no-match" letters;
2. Established anti-discrimination standards outside of its authority; and
3. Failed to review and determine the impact of the new regulations on small businesses.

After this ruling, DHS announced it would comply with the court injunction, but also intended to revise the regulations to meet the court's objections.

In issuing the revised rule, Homeland Security Secretary Michael Chertoff said Friday that the new language "specifically addresses the three grounds on which the district court based its injunction." In the revised rule, DHS argues that the no-match rule merely clarifies and formalizes its previous, informal practice. But DHS also argues that even if the "no match" regulations changed previous practice, the change is justified by an increasing recognition that "no-match" letters are "a legitimate indicator of possible illegal work by unauthorized aliens." In addition, DHS removed the anti-discrimination language from its revised rules and provided an analysis of how the rule impacts small business. However, in doing the small business impact analysis, Homeland Security noted that it was prevented from doing a complete analysis because the SSA refused to share data with it, stating it is barred from doing so under federal privacy laws (26 U.S.C. § 6103).

Homeland Security's issuance of the revised rules has already been attacked by E-Verify opponents. Employers in the Houston, Texas, area have created a nonprofit lobbying group — Americans for Immigration Reform — to combat the new regulation. According to their president, Jeff Moseley, ''We're getting a strong contribution from this work force to our economy, and the consequence of removing 1 of 10 workers would be extremely chilling to our economy — it would take us down to our knees." He hopes to raise $15-20 million dollars to finance the new open-borders group and hire ten staff members to support lobbying efforts in favor of comprehensive immigration reform on Capitol Hill. (Houston Chronicle, March 27, 2008)

These revised rules are open for public comment for 30 days.  At that point DHS will consider the comments and issue a final rule.

To read the Supplemental Proposed Rulemaking, click here. 

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Homeland Security Issues Final Rule for Western Hemisphere Travel Initiative

On Thursday, Homeland Security announced its final rule for entry into the United States via land and sea under the Western Hemisphere Travel Initiative (WHTI). The final WHTI rule requires travelers to present a passport or other approved documents that establish citizenship and identity for all land and sea travel into the United States beginning June 1, 2009.

Passed in 2004, the WHTI was intended to bolster security by requiring citizens of the United States, Canada, Mexico and Bermuda coming into the U.S. to present passports or other secure documents. The WHTI requirements have been implemented at international airports, but the passport requirements are not yet in place at land and sea ports of entry. Since 2004, Congress has repeatedly postponed implementation of the WHTI for land and sea entry. In December 2007, the Omnibus Appropriations bill set June 1, 2009 as the earliest date the program could be implemented.

To transition into the final WHTI requirements, on January 31, 2008, DHS stopped accepting oral declarations alone as proof of identity and citizenship at the land borders. Since that time, U.S. and Canadian citizens ages 19 and older have been asked to present proof of identity and citizenship. Children ages 18 and under are currently asked only to present proof of citizenship, such as a birth certificate. With the full implementation of WHTI, travelers will present a single WHTI-compliant document that denoting both citizenship and identity when seeking entry into the United States. These documents include a valid passport, a Trusted Traveler card, or an enhanced driver's license approved by Homeland Security, such as that offered by Washington State. (Press Release: Homeland Security and State Departments Announce WHTI Land and Sea Final Rule, March 27, 2008) 

Announcing the final rule on Thursday, Homeland Security Secretary Michael Chertoff stated, "Limiting and standardizing the types of documents presented will result in a more secure and efficient border." Senator Patrick Leahy (D-VT) disagreed, citing the agency's history of manpower and technology difficulties. Leahy questioned Homeland Security's ability to effectively put the rule in place, asserting that "[i]n DHS's hands, WHTI is not an advance in security but smoke and mirrors with little real benefit and the potential for a great deal of collateral damage to our economy." (Press Release, March 27, 2008)

To read the final rule implementing WHTI at land and sea ports, click here.  

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At Least 304,000 Criminal Alien Inmates Eligible for Deportation

Last Thursday, Immigration and Customs Enforcement (ICE) Director Julie Myers revealed that at least 304,000 inmates in federal, state and local facilities are eligible for deportation. Myers also reported that over the next few years the number of criminal aliens is expected to remain at about 10 percent of the U.S. prison population. According to Myers, the cost of deporting these criminal aliens to their home countries is about $2 billion per year — or approximately $6,600 per alien. (New York Times, March 28, 2008)

Before the House Appropriations Subcommittee on Homeland Security, Ms. Myers presented ICE's plan to increase the deportation of these criminal aliens. Under the plan, state prisons and county jails would be linked into the federal databases that merge the FBI's fingerprint files with Homeland Security's immigration, border and antiterrorism records. At booking, a local officer would then be able to determine if a suspect has committed any serious offenses or any immigration violation.

The plan, however, came under immediate attack from Subcommittee Chairman Representative David E. Price (D-NC) for not focusing on illegal immigrants who committed crimes, not coordinating adequately with other agencies, and for including large cost increases. These failures, he said, violated language passed in prior appropriations bills and did not convey a sense of urgency on the Department's behalf for deporting criminal aliens before they can victimize more Americans. Myers rejected this criticism and was supported by Congressman Harold Rogers (R-KY). (Id.)

According to ICE, in FY 2007, 164,000 incarcerated criminal aliens were charged with immigration violations as part of the deportation process, and 95,000 aliens with criminal histories were deported. (Id.)

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Rhode Island Governor Signs Order Targeting Illegal Immigration

On Thursday, Rhode Island Governor Don Carcieri signed an executive order aimed at reducing illegal immigration to the state. Among other things, the order requires:

• State agencies to use E-Verify to verify the employment status of state hires;
• All businesses doing work with the State as well as contractors and subcontractors performing work for the state to use E-Verify;
• The State Police to work to obtain a 287(g) agreement with the federal government to assist Immigration and Customs Enforcement (ICE) in carrying out immigration law;
• Law enforcement officials to determine the immigration status of all persons taken into custody; and
• Corrections officials to cooperate with ICE to insure that criminal aliens are properly paroled and deported.

(Rhode Island Executive Order 08-01, March 27, 2008)

The Governor tied the executive order to the state's increasing financial problems. The order notes that "the presence of significant numbers of people illegally residing in the State of Rhode Island creates a burden on the resources of state and local human services, law enforcement agencies, educational institutions and other governmental institutions. . . ."(Rhode Island Executive Order 08-01, March 27, 2008)

The state is currently confronting an estimated $550 million budget deficit. (New York Times, March 28, 2008) Reaction from illegal alien advocates was swift. "These people are not criminals," said activist Juan Garcia. "This is affecting poor people." Governor Carcieri, however, was not convinced by these arguments, stating, "If you're here illegally, you shouldn't be here illegally. You shouldn't be here." (New York Times, March 28, 2008)

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Recent FAIR Statements

• H-1B Debate Reveals a Corporate Feeding Frenzy (March 25, 2008)
• As Maine Resists REAL ID Compliance, Feds Bust Ring Selling Driver’s Licenses to Out-of-State Illegal Aliens (April 2, 2008)

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