Legislative Bulletin – Friday, April 7, 2017

Policy and Advocacy Associate

April 7, 2017

BILLS INTRODUCED AND CONSIDERED
LEGISLATIVE FLOOR CALENDAR
UPCOMING HEARINGS AND MARKUPS
THEMES IN WASHINGTON THIS WEEK
GOVERNMENT REPORTS

BILLS INTRODUCED AND CONSIDERED

S. 845

The Protecting Sensitive Locations Act

This bill would codify and expand an existing policy already in place at Immigration and Customs Enforcement (ICE) to require that ICE agents receive prior approval from a supervisor when there are exigent circumstances before engaging in enforcement actions at sensitive locations, such as schools, hospitals and health clinics, places of worship, organizations assisting crime victims, and other specified locations. The legislation also requires that ICE agents receive yearly training and report annually regarding enforcement actions in these locations.

Sponsored by Senator Richard Blumenthal (D – Connecticut) (10 cosponsors)

04/05/2017 Introduced in the Senate by Senator Blumenthal

04/05/2017 Referred to the Senate Committee on the Judiciary

H.R. 1941

A Bill to Amend the Immigration and Nationality Act to Make the Exception for Returning Workers Permanent, and for Other Purposes.

Sponsored by Representative Clay Higgins (R – Louisiana) (0 cosponsors)

04/05/2017 Introduced in the House by Representative Higgins

04/05/2017 Referred to the House Committee on the Judiciary

H.R. 2043

Fair Day in Court for Kids Act

The bill would require that the government appoint counsel for children and vulnerable individuals in immigration removal proceedings, and would require that the Department of Homeland Security (DHS) establish procedures to ensure that legal orientation programs are available to all detained immigrants.

Sponsored by Representative Zoe Lofgren (D – California) (22 cosponsors)

04/06/2017 Introduced in the House by Representative Lofgren

04/06/2017 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. House of Representative and the U.S. Senate are out of session until the week of Monday, April 24, 2017.

UPCOMING HEARINGS AND MARKUPS

There are no hearings or markups scheduled for the week of Monday, April 10, 2017.

THEMES IN WASHINGTON THIS WEEK

Federal

Kelly Testifies Before Senate Committee about Border Wall, Family Separation

Department of Homeland Security (DHS) Secretary John Kelly told the Senate Homeland Security Committee on April 5 that the border wall with Mexico will not be built “from sea to shining sea.” Kelly also testified that DHS would not separate mothers from their children at the border as a matter of policy, but would not be issuing formal written guidance on that policy.

In his testimony, Kelly said it is “unlikely” that a border wall or physical barrier will span along the entire 2,200-mile length of the Southwest border. He stated that a wall will instead be built where it “makes sense,” while other portions of the border might include high-tech fencing or other “technology.” Kelly also said there was “no way” he could provide an estimate for the wall’s cost, though previous cost estimates from government sources have put the figure at about $21.6 billion.

In addition, Kelly told Senators that DHS would not separate mothers from their children unless a child’s life is likely to be in danger. When pressed by Senator Kamala Harris (D – California) for a written directive emphasizing that policy to Border Patrol agents, Kelly demurred. He said he has verbally instructed staff that mothers and their children are not to be separated without his permission and no written orders are necessary. A DHS spokesperson later confirmed that the Trump administration is no longer considering separating women and children at the border as a means of deterring their migration.

CBP Announces Decrease in Border Crossings as the Deadline for Wall Prototypes Closes

U.S. Customs and Border Protection (CBP) announced on April 5 that the number of individuals apprehended along the Southwest border or deemed inadmissible at ports of entry in March 2017 decreased 30 percent from February 2017 and 64 percent from March 2016. Secretary Kelly said the steep decline in arrests is “no accident” and credited President Trump’s approach to immigration. In March 2017, the number of individuals apprehended between ports of entry fell to 12,193, compared with 18,754 in February and 31,577 in January.

The news of the decrease in apprehensions came on the same day that bids from companies for a concrete wall and a non-concrete barrier along the Southwest border were due. CBP is expected to evaluate the bids and chose four to ten companies to build prototypes costing about $200,000 to $500,000.

White House Considers Extreme Vetting Proposals

According to a report in the Wall Street Journal, the Trump administration is reportedly reviewing “extreme vetting” policies that could force visitors to the United States to disclose contacts on their mobile phones, social-media passwords and financial records, and to answer questions about their ideology and political beliefs. The administration is also considering subjecting more visa applicants to intense security reviews and requiring embassies to spend more time interviewing each applicant. The policy is geared toward ensuring that travelers “are coming for legitimate reasons.”

Although some visitors have already been subject to having their phones examined at ports of entry, this policy has not yet routinely been applied – either at ports of entry or during the application stage. The changes could apply to people from all over the world, including countries in the Visa Waiver Program, which includes American allies like the United Kingdom, France and Germany. Earlier this year, the State Department took additional steps to identify “populations warranting increased security” and toughen visa screening for applicants in those groups.

Sessions, Kelly Defend Practice of Courthouse Arrests of Undocumented Immigrants

Attorney General Jeff Sessions and DHS Secretary John Kelly defended the practice of arresting undocumented immigrants at courthouses in a letter released on March 31. The practice was criticized by California Chief Justice Tani G. Cantil-Sakauye, who released a letter to Sessions and Kelly expressing concerns about immigration agents entering courthouses to arrest undocumented immigrants. Sessions and Kelly argued that the practice is necessary because state or local governments have adopted so-called sanctuary policies intended to limit their involvement in federal immigration enforcement. Replying to the response from Sessions and Kelly, Cantil-Sakauye warned that making arrests at courthouses will undermine public safety because victims and witnesses will fear coming to court, which will undermines the justice system. On April 5, Kelly testified before the Senate Homeland Security Committee that he will not make exceptions to the courthouse arrest policy, whether for crime victims or people scheduled to testify against alleged criminals.

On March 29, ICE agents arrested an undocumented immigrant who met with immigration officers in Lawrence, Massachusetts to apply for legal residency, due a previous deportation order. The man, who has U.S. citizen children, a U.S. citizen wife, and no criminal record, was arrested after scheduling an interview with his local U.S. Citizenship and Immigration Services (USCIS) as part of the process of legalizing his status through his wife. Previously, on February 9, ICE agents arrested and held an undocumented domestic violence victim in El Paso, Texas who had gone to court to receive a protective order against her abuser.

USCIS Reaches H1-B Cap; Announced Effort to Deter and Detect H-1B Fraud

On Friday, April 7, the USCIS also announced it reached the 65,000 visa H-1B cap for fiscal year 2018 as well as the so-called master’s cap for 20,000 foreign workers with advanced degrees. The agency will use a computer-generated lottery process to randomly select applicants, who will receive the visa. The H1-B limit was met five days after the USCIS started accepting the 2018 petitions.

Days earlier, on April 3, USCIS announced it intends to “further deter and detect H-1B visa fraud and abuse” by conducting site visits to companies hiring workers through the visa program. USCIS stated that “protecting American workers by combating fraud in our employment-based immigration programs is a priority,” which confirmed the Trump administration’s plans to review the H1-B visa program.

Trump Administration Moves to Affect Certain High-Skilled Visas

On March 31, U.S. Citizenship and Immigration Services (USCIS) released a memo reversing previous guidance allowing entry-level computer programming to be automatically considered a “specialty occupation,” a key requirement to obtain an H-1B visa. The new policy will make it harder for companies to hire immigrants for those positions.

In addition, the White House decided to further delay its decision about a regulation issued by the Obama administration that authorized some of the spouses of H-1B visa holders to work or start businesses while waiting for green cards. The rule, which is being challenged in court by groups that do not think such spouses should be allowed to work, now is in limbo, with the Trump administration asking the court for additional time to consider whether it will defend it, settle, or begin a new rule-making process. The new administration originally asked the court to pause the rule for 60 days to give it time to formulate its position, but now has requested an additional six months to decide.

Congress Mulls Adding Budget Supplemental Request for DHS to Government Spending Bill

The White House wants Congress to combine its $33 billion budget supplemental request with a spending bill intended to keep the government funded past April 28, risking a government shutdown if Senate Democrats decide to oppose the proposal. The supplemental request would include $3 billion for the Department of Homeland Security (DHS) to begin construction of a wall or fence along the Southwest border, hire additional ICE officers, and add thousands of additional detention beds.

Previously, on March 28, Senator Roy Blunt (R – Missouri) said that President Trump’s budget supplemental request would have to wait until later in the year in order to avoid the possibility of a government shutdown. However, House Republicans are still considering whether to include the supplemental request in the final spending bill or to shift funds from other fiscal year 2017 appropriations for DHS to pay for the wall.

Trump Nominates McAleenan for CBP Commissioner; Senate Confirms Duke as Deputy DHS Secretary

The White House announced on March 30 that President Trump nominated Kevin McAleenan, the Acting Commissioner of U.S. Customs and Border Protection (CBP), to serve as CBP Commissioner. McAleenan previously served as Deputy Commissioner at CBP from November 2014 to January 20, 2017, when he became the agency’s acting chief executive.

In addition, the Senate confirmed Elaine Duke to serve as Deputy Secretary of the Department of Homeland Security (DHS) on April 4 in a largely bipartisan 85 to 14 vote. Duke previously served as undersecretary of management at DHS.

State & Local

Fewer Latinos Report Crimes Amid Deportation Fears

The fear of deportation appears to have dissuaded significant numbers of Houston Latinos from reporting crime. According to the Houston Police Department, Latinos reported nearly 43 percent fewer rape cases in comparison to the last year. The number of other violent crimes reported by the group also fell by 13 percent. At the same time, the department saw an 8.2 percent increase of non-Hispanic victims reporting rapes and 11.7 percent more non-Hispanics reporting other violent crimes. Houston Police Chief Art Acevedo expressed concern over the data and stressed the importance of reassuring the immigrant community that victims and witnesses of crimes can come forward without fear of deportation.

The trend also has been seen in other U.S. cities in 2017. Last month, the Los Angeles Police Department revealed that Latinos in the city reported 41 fewer sexual assaults 118 fewer domestic violence cases during the first two months of 2017, compared to the same time period a year ago.

California Bill Limiting State and Local Involvement with ICE Passes State Senate

The California State Senate passed the California Values Act on April 3 by a 27 to 12 vote. The bill would limit state or local law enforcement involvement in federal immigration enforcement activities, while permitting those agencies to let Immigration and Customs Enforcement (ICE) agents know before convicted felons of serious or violent crimes are released from custody and making it easier to transfer criminals into ICE’s custody. The bill now heads to the California Assembly.

Legal

Massachusetts’ Top Court Weighs Immigration Detainers

The Massachusetts Supreme Judicial Court heard arguments on April 4 to determine whether it is legal for local law enforcement agencies to honor federal immigration detainers. Immigration detainers are federal requests to detain individuals suspected of being in the U.S. unlawfully. Federal immigration authorities  issue detainers to local law enforcement requesting that individuals be held beyond the time they would otherwise have been released and are not usually accompanied by a warrant, a judicial order or probable cause determination. Accordingly, multiple federal courts have questioned their legality and a growing number of localities have declined to honor the voluntary requests.

The Supreme Judicial Court was asked to decide whether Massachusetts law permits local law enforcement officials to hold someone for an immigration violation, particularly if the individual would have been released for all other reasons except the immigration detainer. The Supreme Judicial Court is believed to be the first U.S. state high court to review whether detaining somebody for the sole reason of honoring a federal immigration detainer violates state laws.

GOVERNMENT REPORTS

Congressional Research Service: The Federal Government’s Authority to Impose Conditions on Grant Funds, March 23, 2017

This CRS report examines the federal government’s power to impose conditions on federal grant funding on recipients, as well as the limits on this power. The report also discusses recently-filed litigation challenging President Trump’s executive order to withhold federal grant money from state or local governments that have adopted laws, policies or practices intended to limit their involvement in federal immigration enforcement activities.

U.S. Government Accountability Office: Border Security: DHS Could Strengthen Efforts to Establish Collaborative Mechanisms and Assess Use of Resources, April 4, 2017

This GAO report reviews the various mechanisms implemented by the Department of Homeland Security (DHS) and its U.S. Customs and Border Protection (CBP) to coordinate security operations.

* * *

*This Bulletin is not intended to be comprehensive. Please contact Christian Penichet-Paul, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Christian can be reached at cpenichetpaul@immigrationforum.org. Thank you.