FAIR Legislative Update - 23 Jun 2008

Bush Administration Files New Rule Enforcing E-Verify for Federal Contractors

Last week, the administration proposed new rules for implementing President Bush's executive order requiring all federal contractors and subcontractors to verify the employment eligibility of their employees by using the E-Verify system. The proposed rule explains and justifies the President's executive order, noting that it is "appropriate to ensure that Government contractors and subcontractors abide by the immigration laws" as "one of the Government's primary responsibilities is the enforcement of" those laws. (Federal Register, Vol.73, No.114, p.33375) The rule further explains that use of the E-Verify system "will assist Federal agencies to avoid contracting with companies that knowingly hire unauthorized aliens." (Id.) In addition to identifying E-Verify as the system required for employment eligibility verification, the proposed rule also outlines which employees must be verified through the system and under which circumstances, and suggests penalties for failure to comply with the new regulation.

According to the proposed rule, the executive order mandating the use of E-Verify generally covers all contractors and subcontractors entering into federal contracts totaling over $3,000. The rule does not include federal purchases of "commercially available off-the-shelf items." (Id.) A contractor or subcontractor must register for E-Verify within 30 days of signing the contract to confirm the eligibility of all new hires and existing employees "who will be directly engaged in the performance of work." (Id.) Furthermore, the contractor or subcontractor must maintain use of the E-Verify system for the duration of the contract by verifying every new hire within three days of employment. The proposed rule also states that a clause requiring use of E-Verify must be inserted into every federal contract and subcontract, but also allows for "exceptional circumstances" in which the "head of contracting activity" can waive insertion of the clause. (Id.) The "exceptional circumstances" remain vague and its interpretation unclear.

In the event that contractors receive a non-confirmation from E-Verify but continue to employ those individuals, the new rule requires them to inform the Department of Homeland Security (DHS) of the continued employment. Failure to notify will result in a money penalty ranging from $500 to $1000. Furthermore, if employers choose to continue employing an individual whose work eligibility is not confirmed and that employee is found to be an illegal alien, the employer will be presumed to have "knowingly employed" an unauthorized worker.

The proposed rule is open for public comment through August 11, 2008. To read the proposed rule in its entirety, click here.

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Supreme Court Rules in Alien Removal Case

On Monday, the United States Supreme Court handed down a 5-4 decision that, in certain circumstances, makes it easier for an alien to unilaterally withdraw from a voluntary departure agreement. In the case, Dada v. Mukasey, 554 U.S.____ (2008), the Court focused on what it considered to be a conflict between two provisions of the federal code. The first provision allows an alien ordered removed to file one motion to reopen his case in order to present new evidence. (8 U.S.C. 1229a(c)(7). The second provision allows an illegal alien ordered removed to request voluntary departure, which grants the alien 60 days to leave under his own power and at his own expense. (8 U.S.C. 1229c(b)(2)). If the alien fails to leave within 60 days, he will be ineligible for adjustment of status for 10 years. Alternatively, if an alien voluntarily departs within the required time, he is not barred from reentering the country legally, but any motion previously filed to reopen his case is automatically nullified. (8 U.S.C. 1229(d)(1)(B); 8 CFR 1003.2(d)(2007)).

In the case before the Justices, an immigration court determined that the alien, Mr. Dada, had both overstayed his original visa and entered a sham marriage. (Dada at 3.) An immigration judge ordered the alien removed from the U.S., at which point the alien requested and was granted voluntary departure. However, at the end of the 60 day departure period, the alien filed a motion to reopen and attempted to withdraw his request for voluntary departure. The immigration court denied the alien's motion to reopen based upon the fact that he had not departed the country within 60 days as required and was therefore ineligible for relief.

For the majority of the Supreme Court, this put the alien in an untenable situation. An alien ordered removed can remain in the U.S. to ensure the motion to reopen remains pending, and incur the statutory penalties; or the alien can avoid the penalties and depart, abandoning the motion to reopen.

In the opinion, the Supreme Court found these provisions were in conflict and, absent any additional statutory guidance, needed reconciliation. The court held, therefore, that an alien ordered removed has a right to withdraw his request for voluntary departure before his time for departure expires in order to preserve the motion to reopen the removal order. If the alien chooses this option, and is still ordered removed, the statutory penalties still apply and the alien is barred from any readjustment of status for 10 years.

In a dissenting opinion, Justice Scalia, joined by Justices Roberts and Thomas, argued that while the decision for the alien was stark, the statutory scheme did not conflict and that the majority did not have the authority to craft the interpretation as it did. Justice Alito drafted a separate but similar dissenting opinion.

To read the Supreme Court opinion in its entirety, click here.

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Operation Streamline Increases Immigration Prosecutions, Study Says

A study released last week by Syracuse University's Transactional Records Access Clearinghouse (TRAC) attributes a significant increase in federal criminal prosecutions along the southern border to "Operation Streamline." ("Surge in Immigration Prosecutions Continues", TRAC Reports, Inc.) This program intensifies multi-agency law enforcement efforts to target those who illegally enter the U.S. through high-traffic areas along the U.S.-Mexican border. Agencies participating in this program include Customs and Border Protection (CBP), the Border Patrol, Immigration and Customs Enforcement Detention and Removal Operations, Federal Pre-Trial Services, the U.S. Attorney's Office, and the U.S. Marshals Service. ("DHS Launches 'Operation Streamline II', Customs and Border Protection Press Release", December 16, 2005)

According to the Syracuse University study, 9,350 federal criminal immigration prosecutions were conducted in March, an increase of nearly 50% from February 2008 and an increase of 73% from March of the previous year. TRAC found that the abrupt increase in immigration prosecutions occurred almost exclusively in federal districts along the southwest border. The study also reported that almost all of the concerned offenses were referred for prosecution by  DHS. In addition, of the individuals referred to the U.S. Attorney's Offices, 99% were prosecuted; however, the typical sentence resulting from these prosecutions was quite short - only about one month. The two agencies responsible for the overwhelming majority of these referrals, CBP and ICE, are primary participants in Operation Streamline. ("Surge in Immigration Prosecutions Continues", TRAC Reports, Inc.)

TRAC also examined the severity of the crimes being prosecuted and found that 78% of the concerned cases were handled by U.S. Magistrate Courts, institutions that deal primarily with misdemeanor offenses. Nearly 95% of these cases addressed one of two lead charges: entry of alien at improper time or place (a misdemeanor offense) and reentry of a deported alien (a felony offense). (See 8 U.S.C. §§1325-1326). U.S. District Courts, which are responsible for more serious felony cases, followed a similar pattern. Of the top ten lead charges filed in U.S. District Courts in March, reentry of a deported alien was charged more than the other nine lead charges combined. ("Surge in Immigration Prosecutions Continues", TRAC Reports, Inc.)

This spring, apprehensions in the Yuma sector dropped 70% from FY2007 after implementation of Operation Streamline; in the Laredo sector, the apprehension rate dropped 33% in just 45 days after the program was implemented. Homeland Security Secretary Michael Chertoff presented this data to the Senate Judiciary Committee in April as evidence that Operation Streamline is effective in deterring illegal entry. (Testimony of Secretary Michael Chertoff before the Senate Judiciary Committee on the Judiciary on Oversight of the Department of Homeland Security, April 2, 2008)

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Representative Delahunt Encourages Taxpayer Funded Scholarships for Foreign Students

The House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight held a hearing to examine a legislative proposal by Subcommittee Chairman Bill Delahunt (D-MA) called "Uniting Students in America." According to Rep. Delahunt, the goal of the proposal is to bring 7,500 undergraduates from developing countries to American Colleges each year through four-year taxpayer funded scholarships. In his opening statement, Delahunt told the committee that under his proposal, 30,000 "USA" scholars at any one time would be able to attend college in the United States - "students from Africa, Asia, Latin America, and the Middle East who probably could otherwise not have afforded a college education at home." (Opening Statement of Chairman Bill Delahunt, June 19, 2008)

Subcommittee Ranking Member Dana Rohrabacher (R-CA) questioned the need for such a program when there are already nearly 600,000 foreign students currently in the United States. He told the committee that such a program would "buy off" and "siphon away" the best students from these countries. Rep. Rohrabacher also questioned the wisdom of providing scholarships to foreign students given the great need for funding for American students. (Opening Statement of Dana Rohrabacher, June 19, 2008)

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Recent Floor Statements

• Rep. Walter Jones (R-NC) commented on Illegal Alien Crime Reporting Act (June 18, 2008)

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