H.R. 240, DHS FISCAL YEAR 2016 APPROPRIATIONS

H.R. 240, DHS FISCAL YEAR 2016 APPROPRIATIONS CONTENTS H.R. 240 & Amendments Overview & Talking Points...2-3 Aderholt Amendment Summary, Analysis & Talking Points... 4-5 Blackburn Amendment Summary, Analysis & Talking Points... 6 Salmon Amendment Summary, Analysis & Talking Points... 7-8 Desantis Amendment Summary, Analysis & Talking Points... 9 Schock Amendment Summary, Analysis & Talking Points...10 For more information, contact Kamal Essaheb at essaheb@nilc.org. 1

DEPARTMENT OF HOMELAND SECURITY FISCAL YEAR 2015 APPROPRIATIONS BILL (H.R. 240) Sponsor: Hal Rogers (R-KY), Chair of the House Appropriations Committee. Provides $39.7 billion in regular discretionary appropriations for Department of Homeland Security (DHS) in fiscal year 2015; as introduced, the bill doesn t include provisions on executive action, which will instead be proposed as amendments. Provides $12.6 billion for Customs and Border Protection (CBP); DHS would be required to accelerate the hiring of CBP officers. Provides Immigration and Customs Enforcement (ICE) $5.96 billion; the agency s feefunded accounts would receive $345 million, bringing the total to $6.3 billion. Requires ICE to maintain at least 34,000 beds for detained immigrants. Provides $553.6 million in unrequested funding to manage the influx of unaccompanied alien children, or UAC, entering the U.S.; the funding would be used to interdict migrants, care for and transport approximately 58,000 undocumented children to the custody of Health and Human Services (HHS), and facilitate the movement of undocumented families through removal proceedings after crossing the U.S. border. Also provides appropriations for the Transportation Security Administration (TSA), Coast Guard, Federal Emergency Management Agency (FEMA) & Emergency Preparedness, Cybersecurity and Communications, Secret Service, and other authorities under DHS. Amendments: Several anti-immigrant amendments have been offered that would reverse the executive actions taken by President Obama on immigration going back to 2011, including DACA and the recently announced DAPA and expanded DACA programs. The amendments cut broadly, seeking to dismantle humanitarian-based relief, hurt community policing and safety, and needlessly separate families and punish children. These amendments are expected to be passed by the House and included in the Housepassed version of H.R. 240. This is a full-blown assault on immigrants and lays down the marker for the antiimmigrant, self-deportation legislative agenda of the new Republican-controlled Congress. The amendments attack President Obama s executive action on immigration, which is legally sound, and goes beyond that by attacking other programs that improve legal immigration and help ICE prioritize deportations. These are direct attacks on our families and children. 2

The amendments underscore the single-minded purpose of the GOP-controlled House: to force the deportation or self-deportation of millions of American children and parents. Most of the amendments are loaded with hot air where there are no fires; creating problems where they don t exist for the sake of making political statements to attack the president s immigration programs. The amendments continue political attacks by conservatives against the president s immigration programs and shamefully seek to dismantle humanitarian-based relief for children, asylees, and others. The bill advances the deportation only strategy of conservatives. Instead of playing politics with American lives, Congress should do its job by legislating needed immigration reforms, such as modernizing the visa system and addressing the status of millions of people who have lived and worked in the U.S. for years. The bill would hurt community policing and safety. The bill would require states and localities to comply with Secure Communities even though local jurisdictions have opted out of Secure Communities. As New York Gov. Andrew Cuomo wrote to DHS in 2011, The heart of concern is that the program, conceived of as a method of targeting those who pose the greatest threat to our communities, is in fact having the opposite effect and compromising public safety by deterring witnesses to crime and others from working with law enforcement. The continuing political attacks undermine our growing economy. According to the Council of Economic Advisors, the expanded DACA/DAPA programs would: Allow immigrants to come forward to apply for relief from deportation and work authorization; Increase the national GDP by up to 0.9 percent, or an additional $90 to $210 billion over 10 years; Reduce the deficit by $25 billion in 2024; Grow the size of the American workforce and expand the American labor force by nearly 150,000 people over 10 years. Also, the first two years of the 2012 DACA program showed significant integration in our economic and social institutions, with 59% of DACA recipients surveyed stating they had received new jobs, 49% opened their first bank account and 45% reported higher job earnings. The bill ignores PAYGO rules and the revenues that would be raised by these programs. Conservatives continue to pursue policies that would needlessly separate families and unfairly punish children who were brought to the U.S. without documents. 3

Aderholt Amendment to H.R. 240 Sponsor: Robert Aderholt (R-AL) Cosponsors: Mick Mulvaney (R-SC) and Lou Barletta (R-PA) Effectively eliminates the DACA and DAPA programs by prohibiting funds for them. Effectively rescinds policies in ICE memoranda regarding civil enforcement priorities going back to 2011 by prohibiting funds or fees to carry them out. Eliminates recent policies related to prosecutorial discretion, the use of detainers, the establishment of border security task forces, the replacement of the failed Secure Communities program with the Priority Enforcement Program as outlined in November, 2014, protections for unaccompanied children, efforts to keep families of U.S. military service members together, and citizenship and integration initiatives. Analysis: Prevents ICE from establishing common-sense rules about prioritization of deportation cases; breaks apart more families by ensuring the deportation of the parents of U.S. citizen and lawful permanent resident children; and results in thousands of U.S. citizen children in foster care. Deportations would be random and not related to national security or public safety. Removes protections from young people who have already benefitted from DACA; prevents the expansion of DACA to individuals brought to the U.S. before January 1, 2010 and the removal of the DACA age cap. Harms military families by repealing the Administration s memo that allows service members to continue serving their country without fearing the deportation of their loved ones. Prevents DHS from establishing three Joint Task Forces on border security. Prevents the Administration from improving legal immigration channels through agency regulations identified in the above memos; also eliminates the Administration s ability to allow more entrepreneurs to create jobs in the U.S. Reverses common-sense reforms to the naturalization process that would encourage lawful permanent residents to pursue citizenship. Harms U.S. citizens and lawful permanent residents who face extreme hardship by repealing the Administration s memo to improve the provisional waiver process related to hardship waivers of unlawful presence. Prevents the Administration from replacing the failed Secure Communities program with the Priority Enforcement Program, an initiative that could better focus immigration enforcement actions and help to protect community-policing efforts. Prevents DACA grantees (as well as parolees, qualified battered immigrants, certain Cuban-Haitian entrants, asylum applicants, and several other categories of lawfully present individuals) from receiving Social Security benefits regardless of whether the quarters were earned while the individual was authorized to work. Prohibits the Administration from implementing a decision by the Board of Immigration Appeals regarding advance parole to facilitate travel abroad for persons who require permission to reenter the country. Busts the budget because it exempts most of the memos from scrutiny under PAYGO rules. Revenues that would be created by program fees and taxes must be ignored under this provision. 4

The Aderholt amendment completely abandons commonsense approaches to immigration. Like the underlying bill, the Aderholt amendment underscores the full-blown assault on immigrants and lays down the marker for the anti-immigrant, self-deportation legislative agenda of the new Republican-controlled Congress. This amendment would prevent ICE from establishing common-sense rules about prioritization of deportation cases, break apart more families by ensuring the deportation of the parents of U.S. citizen and lawful permanent resident children; and result in thousands of U.S. citizen children in foster care. Deportations would be random and not related to national security or public safety. This amendment would dismantle long-standing programs that have contributed greatly to our national and economic security; programs that have helped military families and millions of children and their parents stay together; and programs that have tried to restore justice to our broken immigration system. By striking at the core of prosecutorial discretion authority, this amendment violates existing legal authority and precedent. 5

Blackburn Amendment to H.R. 240 Sponsor: Marsha Blackburn (R-TN) Effectively eliminates the DACA program, thereby stripping approximately 600,000 DACA recipients to date of their work permits and blocking hundreds of thousands of more eligible applicants (including the approximately 100,000 currently pending) from being able to benefit DACA. Also blocks implementation of expanded DACA, DAPA and any future policy memorandum. Analysis: Ends the DACA program. o o o It explicitly references initial applications, previously denied applications and renewals. This would strip the approximately 600,000 DACA recipients to date of their work permits and block hundreds of thousands of more eligible applicants (including the approximately 100,000 currently pending) from being able to benefit DACA. It would devastate a program that has successfully allowed immigrants who came to the U.S. in their childhood or youth of the ability to continue to work, study, contribute to the economy, provide for their families and remain more fully integrated in their communities. This is similar to the mean-spirited House messaging bill (also by Rep. Blackburn) to deport DREAMERs that passed just before the August 2014 recess. Like that bill, this amendment offers no practical solutions and resorts to a deport them all position that shows Republicans are more interested in symbolic grand-standing than in actually figuring out smart, sensible policy solutions to fix our immigration system. Halts the expansion of DACA and the creation of DAPA. o This would prevent implementation of any of the November 20, 2014 policy memos that created deferred action as a form of relief to immigrants who arrived in the U.S. in their youth or to parents of U.S. citizens and lawful permanent residents. o This again shows House Republicans are only interested in a devastating status quo that would keep parents and bread winners indefinitely vulnerable to deportation. The Blackburn amendment is another mean-spirited version of the bill that passed the House last July that would deport DREAMERs, young immigrants who were brought to the U.S. as children without documents. Instead of hurting children and immigrants who are now Americans and contribute to our nation, the House should consider the economic and social benefits of these programs. The first two years of the DACA program showed significant integration in our economic and social institutions, with 59% of DACA recipients surveyed stating they had received new jobs, 49% opened their first bank account and 45% reported higher job earnings. The expanded DACA and DAPA programs would increase the national GDP by up to 0.9 percent, or an additional $90 to $210 billion over 10 years and reduce the deficit by $25 billion in 2024 according to the Council of Economic Advisors. 6

Sponsor: Matt Salmon (R-AZ) Co-sponsor: Glenn Thompson (R-PA) Salmon Amendment to H.R. 240 Expresses the sense of Congress that individuals who qualify for deferred action under the president s immigration initiatives are not subject to the Affordable Care Act (ACA) mandate, thus removing them as a factor in determining an employer s obligation under the ACA. Incorrectly assumes that because individuals granted deferred action under the DACA and DAPA programs will not be subject the ACA s requirement to carry health insurance, employers will hire these individuals exclusively, in order to avoid providing health care to their workers. Asserts that the Executive Branch should refrain from pursuing policies that disadvantage U.S. citizens and those with lawful immigration status and includes a sense of the Congress statement that the president s programs discourage the hiring of U.S. citizens and LPRs Analysis: It is extremely unlikely that executive actions will discourage the hiring of U.S. citizens or other lawfully present individuals based on the employers obligation to provide health care. The concern arises only for bad actors who would attempt to violate employment laws by asking for immigration documents in advance of a hire. The best way to protect against this result is to allow individuals granted DACA/DAPA to purchase coverage in the ACA marketplace, with subsidies. This would remedy any disparate treatment referred to in the amendment. This amendment reflects a misunderstanding of the employer mandate and penalty. The employer mandate applies to all employers with 50 or more full-time employees, regardless of the makeup of the workforce and their eligibility for the ACA. An employer s primary concern is to have a capable workforce that can get the job done. This is much more relevant to the bottom line than avoiding a potential penalty. An employer would need to hire a majority of workers who are ineligible for the ACA for this to make financial sense, since the employer would receive a penalty for any employee who seeks subsidized coverage in the marketplace. ACA-eligible employees would trigger a penalty for the employer if they seek subsidized coverage (as employers are prohibited from offering qualitatively different types of coverage to different employees). It would be difficult for an employer to establish a workforce that would allow him to skirt the employer mandate, particularly given the protections discussed below. Existing law, 8 USC 1324b, limits the ability of employers to inquire as to the particular immigration status of newly-hired, work-authorized employees. Thus, it would be difficult under current law for an employer to lawfully discern whether a potential hire is eligible or ineligible for the ACA, limiting their ability to discriminate on this basis. Existing law, 8 USC 1324b, prohibits an employer from discriminating against U.S. citizens and Lawful Permanent Residents and certain other workers on the basis or citizenship and immigration status in hiring and firing. Therefore, current law already prohibits an employer from favoring DAPA or DACA-eligible employees in the hiring process. This same law also already prevents an employer from firing any U.S. citizen, Lawful Permanent Resident, or other ACA-eligible employees in order to hire workers who are ineligible for the ACA, including workers with DAPA or DACA. 7

The Salmon amendment is another absurd amendment, based on the far-flung assumption that deferred action recipients would be hired before workers with lawful status solely to avoid penalties for noncompliance with the ACA. An employer s primary concern is to have a capable workforce that can get the job done, not avoidance of ACA compliance. It s unlikely that an employer would scheme to mostly hire those who are not eligible for ACA to avoid penalties. Existing law already prohibits employers from discriminating against U.S. citizen, Lawful Permanent Residents, and certain other workers who would be eligible for the ACA in hiring and firing, so it already is illegal for an employer to favor workers with DAPA or DACA in the hiring process and to fire U.S. citizens, LPRs, and certain other workers eligible for the ACA in order to hire workers who are ineligible for the ACA. 8

Sponsor: Ron Desantis (R-FL) Co-sponsors: Martha Roby (R-AL) Desantis Amendment to H.R. 240 Prohibits funding to implement, administer, enforce, or carry out any immigration enforcement policy unless people convicted of any offense involving domestic violence, sexual abuse, child molestation, or child exploitation are treated as top enforcement priorities. Analysis: Aimed at forcing proponents of the president s executive actions into the ostensible position of supporting sex offenders and perpetrators of domestic violence. Convictions for all of the enumerated crimes would typically qualify someone as at least a priority level two under the new enforcement priorities and, depending on the sentence in some cases, as a level one priority. Nullifies all of the enforcement priorities if the enumerated crimes are not deemed of the highest priority, including in cases in which domestic survivors were charged with domestic violence, as often happens in situations involving dual arrests. Essentially prevents the administration from prioritizing even cases that threaten national security or involve terrorism or murder. Results in absurd and potentially dangerous results and also puts certain survivors of domestic violence at risk of being deemed a top enforcement priority, undermining the bipartisan Congressional policies animating the Violence Against Women Act (VAWA) and other laws that protect domestic violence survivors. The Desantis amendment is senseless and illogical because the administration already treats these convictions as high enforcement priorities. Further, it essentially undermines the administration s authority to prioritize even cases that threaten national security or involve terrorism. The amendment puts certain survivors of domestic violence at risk of being deemed a top enforcement priority, undermining the bipartisan Congressional policies under VAWA and other laws that protect domestic violence survivors. 9

Schock Amendment to H.R. 240 Sponsor: Aaron Schock Co-sponsors: States the Sense of the Congress is that USCIS should stop putting the interests of undocumented immigrants ahead of legal immigrants, contends that applications of undocumented immigrants increase wait times for cases of documented immigrants and alleges that fees from documented immigrants unfairly pay for programs for the undocumented. Analysis: When DACA was implemented, the wait times for some legal immigration categories increased because adjudicators were working on DACA applications. This amendment fixates on that and says USCIS adjudicators should work on legal immigration petitions, not on applications that benefit undocumented applicants, such as DACA or DAPA. When DACA was implemented in 2012, delays in adjudicating other applications were short and temporary. Expanded DACA and DAPA implementation will go more smoothly because USCIS has more time to prepare. Original DACA was implemented within 60 days of the announcement, so there was a lag between the start of adjudications and the hiring and training of the new adjudicators, and existing adjudicators had to be temporarily diverted to DACA. In contrast, DAPA doesn t begin until 180 days after the announcement, so there's much less reason to expect even the short and temporary delays that DACA may have caused for other applications. DACA is funded by the fees of those who apply for it, not by fees of applicants in other categories. 10