Legislative Bulletin – Thursday, August 20, 2015

Assistant Director for Immigration Policy and Advocacy

August 20, 2015

Bills Introduced and Considered

No immigration-related legislation has been introduced or considered during the congressional recess.

Nominations and Confirmations

There were no significant developments on nominations or confirmations during the congressional recess.

Legislative Floor Calendar

The U.S. House of Representatives and U.S. Senate are in recess until Tuesday, September 8.

Upcoming Hearings and Markups

S. 1814, Stop Sanctuary Cities Act

Date: Thursday, September 10, 2015, 10:00 a.m. (Senate Judiciary Committee)

Location: TBD

Themes in Washington This Week

Trump Releases Draconian Immigration Plan

On August 16, businessman and reality television personality Donald Trump (R-New York) released an extreme, draconian immigration plan, which critics promptly deemed “backward” and “dangerous.”

Trump’s plan calls for the mass deportation of all 11 million undocumented people residing in the United States and arguable of millions of U.S. citizen children in mixed families. It also seeks an end to birthright citizenship, which is guaranteed by the 14th Amendment of the U.S Constitution and calls for a building of a fortified border wall with Mexico, purportedly to be paid by Mexico. The plan calls for significantly increased interior enforcement through mandatory E-Verify and tripling the number of Immigration and Customs Enforcement (ICE) agents, as well as a reduction of legal immigration to the United States. To help pay for a portion of the plan’s $166 billion tab, the plan would “impound” remittance payments from undocumented immigrants and “eliminat[e]tax credit payments to unauthorized immigrants.”

Experts and advocates, including leading conservatives, have attacked the extremist plan on economic, practical and moral grounds, noting its astronomical cost, the toll it would take on the U.S. economy and society.

In pushing the GOP primary field towards failed, nativist and bizarre policies, many have remarked on the danger Trump poses to the Republican Party in 2016 and beyond. While some in the GOP field were critical of Trump’s plan, several GOP contenders have echoed Trump in calling for an end to birthright citizenship.

On August 17, the National Immigration Forum posed five questions on immigration to presidential candidates, focusing on how their proposed immigration policies affect the economy, the rule of law and families.

Birthright Citizenship Under Attack

With Donald Trump calling for an end of birthright citizenship, several members of the 2016 GOP field have followed suit in recent days, including Gov. Scott Walker (R-Wisconsin), who renounced his previous support for immigration reform earlier this year; Gov. Bobby Jindal (R-Louisiana), the son of Indian immigrants; Sen. Ted Cruz (R-Texas), who was born in Canada to an American mother and Cuban father; and Dr. Ben Carson (R-Maryland). Sen. Lindsay Graham (R-South Carolina) and Gov. Chris Christie (R-New Jersey) had previously questioned birthright citizenship, but criticized some aspects of Trump’s proposals.

Some Republican contenders have rejected changing birthright citizenship, including former Gov. Jeb Bush (R-Florida), Sen. Marco Rubio (R-Florida), and Gov. John Kasich (R-Ohio). As some analysts have noted, birthright citizenship was a historic accomplishment of the post-Civil War Republican Party, enshrined in the text of the 14th Amendment to reverse the infamous Dred Scott U.S. Supreme Court decision.

Even before birthright citizenship arose as a campaign issue in the GOP primary, it had come under attack at the federal and state levels. In April, a Republican-led House subcommittee held a hearing on ending birthright citizenship. In June, a lawsuit was filed in Texas after the state Department of State Health Services refused to issue birth certificates to many U.S.-born children of undocumented parents. According to the lawsuit, common and well-established forms of identification possessed by undocumented parents are no longer being honored by Texas officials as proof of identification when the parents request birth certificates for their U.S. citizen children.

The National Immigration Forum defended birthright citizenship in a statement for the record submitted to the House Subcommittee on Immigration and Border Security for the April hearing.

Hispanic Man Brutally Beaten in Boston Hate Crime

Early on August 19, a homeless Hispanic man was ambushed and brutally beaten in Boston by two South Boston brothers, one of whom allegedly told police that they were inspired, at least in part, by GOP front runner Donald Trump (R-New York).

The brothers, Scott and Steve Leader, who pleaded “not guilty” on August 19, face several charges, including assault with a dangerous weapon, indecent exposure, and making threats. According to police, the brothers urinated on the face of the sleeping 58-year-old victim before punching him and hitting him with a metal pole. The victim was last reported as being in fair condition with a broken nose and significant bruising on his head and torso. One brother attempted to justify the attack by referencing the victim’s homelessness and supposed immigration status, allegedly telling police “Donald Trump was right, all these illegals need to be deported.” (Note: The name and immigration status of the victim have not yet been released).

The alleged assault was widely condemned by Boston officials, including Mayor Martin Walsh and Police Commissioner William Evans.

When told of the alleged assault, Trump offered only muted concern, stating that “it would be a shame” and then pivoted to defend the “passion” of his supporters: “I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.”

According to reports, Scott Leader was previously convicted of a hate crime in 2001, after attacking a Moroccan man and calling him a “terrorist.” Both Leader brothers reportedly have “extensive” criminal records.

On August 20, the National Immigration Forum released a statement on the incident, decrying hateful rhetoric towards immigrants by Trump and others.

Developments in Immigration-Related Litigation

On August 14, the U.S. Court of Appeals for the D.C. Circuit rejected an appeal by Maricopa County (AZ) Sheriff Joe Arpaio on his lawsuit challenging aspects of President Obama’s package of executive actions. The court unanimously found that Arpaio failed to demonstrate standing to bring the lawsuit. Arpaio’s lawsuit resembles a pending federal lawsuit in Texas which has temporarily halted Deferred Action for Parents of Americans (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA). Arpaio reportedly will appeal the decision to the U.S. Supreme Court.

In the Texas-led federal lawsuit, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, heard arguments in an August 19 hearing to determine whether to sanction the federal government over the erroneous issuance of work permits to a handful of DACA recipients.

Last month, Hanen issued an order setting the August 19 hearing date featuring testimony from key administration officials — including DHS Secretary Jeh Johnson — to determine whether the federal government should be held in contempt of court for issuing three-year work permits to DACA recipients after he issued a temporary injunction to stop the expansion of the DACA and DAPA programs. Earlier this month, Hanen issued an order clarifying that DHS Secretary Jeh Johnson would no longer have to appear in his court to testify in the August 19 hearing.

After investigating the issuance of the three-year work permits, the Department of Homeland Security Inspector General (DHS OIG) released a report on August 11 that concluded that no evidence supported the notion that U.S. Citizenship and Immigration Services (USCIS) officials intentionally violated Hanen’s temporary injunction when it erroneously issued the work authorizations.

In litigation relating to the Optional Practical Training program (OPT), on August 13, a federal court ruled against the federal government’s extension of the OPT program from 12 months to 29 months. In 2008, the Bush Administration extended the program, which allows science, technology, engineering and math (STEM) students to work while in the United States on a student visa, in order to allow foreign students more time to gain an H-1B visa. Ruling for the Washington Alliance of Technology Workers, the plaintiff union which brought the lawsuit, the court found that the federal government failed to adhere to the Administrative Procedure Act’s requirement for “notice and comment” rulemaking.

Report: Almost 50% of UACs Lack Lawyers

New numbers released by the Executive Office of Immigration Review (EOIR), the agency that manages federal immigration courts, suggests that a large number of unaccompanied immigrant children (UACs) are continuing to appear before an immigration judge without legal counsel. For example, of the 7,237 deportation orders issued to immigrant children since last summer, 6,315 were in absentia. In absentia orders are particularly problematic for immigrant children because many fail to receive sufficient notice of their immigration hearings and are more likely not to appear in court. Of those with legal counsel, however, statistics show that more than 90% of immigrant children appeared for their immigration hearings.

Advocates have long argued that legal counsel should be provided to immigrant children to ensure fair and efficient processing of their immigration proceedings.

National Immigration Forum Launching Series of EB-5 Papers

The Immigrant Investor Program, also known as the EB-5 visa program, is a popular source of funding for many U.S. commercial enterprises. The program is commonly utilized by foreign investors wishing to invest in the United States, providing them with a temporary conditional green card once they invest capital in a qualifying project. The program, created in 1990, is intended to stimulate the U.S. economy through job creation and capital investment by foreign investors.

Since the early 1990s, a growing number of investors have invested through the EB-5 Regional Center Program, which allows the investments of several investors to be pooled into bigger projects. The EB-5 Regional Center Program is currently set to expire on September 30, 2015, and absent action by Congress, will terminate at that time.

The future of the EB-5 program will be an issue of debate when Congress returns this fall. The National Immigration Forum is launching a five-part series on the EB-5 program to provide background, highlight its importance and offer useful context for the upcoming debate over its future.

Click through to read the first short paper in the series: “What is the EB-5 Visa Program?”

Government Reports

Congressional Research Service: Department of Homeland Security: FY2016 Appropriations, William L. Painter and Barbara L. Schwemle (August 7, 2015)

This Congressional Research Service (CRS) report previews fiscal year (FY) 2016 appropriations for the U.S. Department of Homeland Security (DHS). For FY2016, the Obama Administration requested $41.4 billion in adjusted net discretionary budget authority for DHS, as part of a total budget of $64.8 billion (including fees, trust funds, and other non-appropriations funding that is excluded from existing budget caps). This request would represent an increase of $1.7 above FY2015 funding levels (4.4%). The administration also requested an additional $6.7 billion in funding for FEMA disaster relief funding.

In July, the House Committee on Appropriations reported out H.R. 3128, which would represent a $337 million (0.8%) decline in DHS funding from FY2015 enacted funding levels. H.R.3128 would provide for $39.3 billion in adjusted net discretionary budget authority for FY2016, more than $2 billion (5.0%) less than the Obama Administration’s request.

Congressional Research Service: Comparing DHS Appropriations by Component, FY2016: Fact Sheet, William L. Painter (August 6, 2015)

This CRS fact sheet, which was issued alongside CRS’s report on DHS FY2016 Appropriations, breaks down DHS’s discretionary budget authority for FY2015, as well as the Obama Administration’s FY2016 budget request, broken down by DHS component.

Congressional Research Service: Trends in the Timing and Size of DHS Appropriations: In Brief, William L. Painter (August 6, 2015)

This CRS report, which was issued alongside CRS’s report on DHS FY2016 Appropriations, reviews historic trends in the timing and size of DHS appropriations measures going back to the creation of the Department in 2003.

U.S.  Government Accountability Office: Immigrant Investor Program: Additional Actions Needed to Better Assess Fraud Risks and Report Economic Benefits, August 2015

This GAO report assesses the U.S. Citizenship and Immigration Services (USCIS) administration of the Employment-Based Fifth Preference Immigrant Investor Program (EB-5 Program), which aims to promote job creation by immigrant investors. The EB-5 Program allows immigrant investors who meet certain requirements to become eligible for lawful permanent residency in exchange for their investments and job creation in the United States.

The GAO assessment generally found that fraud risks and uncertainties of immigrant investment schemes were still prevalent in the EB-5 Program. The report recommends that USCIS “conduct regular risk assessments, develop a strategy to expand information, and analyze the data collected on program forms to reliably report on economic benefits.”

The Department of Homeland Security Inspector General (DHS OIG): USCIS’ Issuance of 3-year Employment Authorization Documents Following a Federal District Court Injunction, August 11, 2015

The Department of Homeland Security Inspector General (DHS OIG) released a report determining that U.S. Citizenship and Immigration Services (USCIS) did not deliberately violate the temporary injunction placed by a U.S. District Court regarding the issuance of 3-year work authorizations to Deferred Action of Childhood Arrival (DACA) recipients and took sufficient corrective action to remedy mistakenly administered work authorizations.

Note: During the Congressional Recess, the Bulletin will be publishing on a bi-weekly basis: August 6, August 20 and September 4. We will post additional occasional updates, when necessary.

* * *

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