BILLS INTRODUCED AND CONSIDERED
THEMES IN WASHINGTON THIS WEEK
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
BILLS INTRODUCED AND CONSIDERED
H.R. 5593
A Bill to Render Certain Military Spouses Eligible for Adjustment of Status
Sponsored by Representative Darren Soto (D-Florida) (12 cosponsors – 12 Democrats, 0 Republicans)
04/24/2018 Introduced in the House by Representative Soto
04/24/2018 Referred to the House Committee on the Judiciary
H.R. 5617
No Enforcement, No Grant for Sanctuary Cities Act
This bill would prohibit localities that select to limit their involvement in federal immigration enforcement from receiving federal funding under the State Criminal Alien Assistance Program (SCAAP).
Sponsored by Representative Dan Donovan (R-New York) (5 Cosponsors – 0 Democrats, 5 Republicans)
04/25/2018 Introduced in the House by Representative Donovan
04/25/2018 Referred to the House Committee on the Judiciary
LEGISLATIVE FLOOR CALENDAR
The U.S. Senate and the U.S. House of Representatives will not be in session the week of Monday, April 30, 2018.
UPCOMING HEARINGS AND MARKUPS
There are no immigration-related hearings or markups scheduled for the week of Monday, April 30, 2018.
THEMES IN WASHINGTON THIS WEEK
Legal
Supreme Court Hears Oral Arguments in Travel Ban Case
The Supreme Court heard oral arguments on April 25 over President Trump’s third effort to ban travel to the United States from several Muslim-majority countries. The outcome of the case remained uncertain after oral arguments, although some believe that the court’s five-member conservative majority is likely to approve the latest iteration of the ban. The court’s decision is expected later this year.
The Trump administration argued that the third version of the travel ban, issued in September 2017, is not a Muslim ban, in part because it excludes “the vast majority of the Muslim world.” The administration also said that the ban is a proper exercise of executive power and is vital to national security. The ban’s challengers noted that President Trump’s campaign speeches and Twitter posts about Muslims were a clear indication that the ban is tainted by religious animus – aimed at Muslims groups and not justified by national security concerns.
The travel ban’s challengers hope Chief Justice John Roberts or Justice Anthony Kennedy will join the court’s four liberals to strike down the ban on grounds that it is unconstitutionally discriminatory against Muslims. However, Chief Justice Roberts questioned whether it was appropriate to consider President Trump’s campaign promises to impose a “Muslim ban” to determine whether this travel ban is discriminatory. He questioned whether that rationale would make it impossible for the Trump administration to address immigration issues or conduct foreign policy. Justice Kennedy’s views appeared uncertain, as his questioning was critical of arguments presented by both sides.
The Supreme Court previously allowed this third iteration of the travel ban to take effect in December 2017 while the case moved forward, a potential sign that the court may uphold the ban.
Judge Orders Trump Administration to Continue DACA, Accept New Applications; Puts Decision on Hold for 90 Days
A federal judge in the District of Columbia ruled on April 24 that the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA) was “virtually unexplained” and therefore “unlawful.” U.S. District Judge John D. Bates, a George W. Bush-appointee, ordered the government to continue DACA and – for the first time since President Trump rescinded DACA – reopen it to new applicants. However, Judge Bates stayed, or placed a hold on his decision, for 90 days to give the Department of Homeland Security (DHS) an opportunity to provide more solid reasoning for ending the program.
Judge Bates argued that the government’s decision to end DACA “was arbitrary and capricious” because DHS failed to adequately explain why the program was unlawful. He noted that “each day the agency delays is a day that… [someone] eligible for initial grants of DACA benefits [is] exposed to removal.” The White House criticized the judge’s decision, stating that it was “horrible news for our national security.”
Bates is the third federal judge to rule against the Trump administration’s effort to end DACA. Federal judges in California and New York also blocked the administration’s rescission of DACA and ordered the administration to allow those already enrolled in the program to renew their protections. Another federal judge in Maryland ruled in March 2018 that the administration did have reasonable justification for ending DACA, but did not block the other court decisions allowing DACA recipients to submit renewals and chastised Congress and the White House for their failure to enact a legislative solution.
Meanwhile, Rep. Jeff Denham (R-California) continues to secure support for his “Queen of the Hill” resolution, which would bring four immigration bills that contain various DACA-fix provisions to the House floor for debate and votes. The resolution currently has 248 cosponsors, including 53 Republicans.
Federal
Top DHS Officials Urge Secretary Nielsen to Prosecute Parents Crossing the Border with Their Children, Potentially Leading to Family Separation
Top Department of Homeland Security (DHS) officials are reportedly urging DHS Secretary Kirstjen Nielsen to implement a policy to detain and prosecute all parents apprehended with their children crossing the U.S.-Mexico border. If implemented, the policy could result in thousands of family separations, since the parents would be placed in criminal detention, and could further inundate the justice system, straining already overburdened federal dockets in border districts.
The memo outlining the proposal– signed by U.S. Customs and Border Protection (CBP) commissioner Kevin K. McAleenan, Immigration and Customs Enforcement acting director Thomas Homan, and U.S. Citizenship and Immigration Services (USCIS) director L. Francis Cissna – states that threatening migrants with criminal charges and prison time would be the “most effective” way to deter migrants from coming to the U.S. The memo states that attempted crossings by parents with children over the last week increased to nearly 700 a day and predicted the number would continue to rise if Nielsen does not act.
The policy would reportedly not apply to those who turn themselves in at ports of entry and claim asylum. However, between 20,000 and 30,000 migrants who sought asylum from October to December 2017 crossed the border without authorization between ports of entry. As a result, in violation of international treaties, the policy could punish asylum seekers crossing between ports of entry and deny them an opportunity to make valid asylum claims, a problem previously identified by the DHS Office of the Inspector General (OIG) in 2015.
On April 6, Attorney General Jeff Sessions directed federal prosecutors to make those entering the U.S. without authorization for the first time – a misdemeanor offense with a maximum six months of prison and up to a $250 fee – priorities for criminal prosecution. A DHS spokesperson said the department is “looking at all options in conjunction with the Attorney General’s zero tolerance policy for those illegally crossing the border.” The proposed policy change on criminal punishments for parents is seen as an outgrowth of this “zero tolerance” policy.
Reports of the proposed policy change came soon after data from the Office of Refugee Resettlement (ORR) indicated that family separations are already a growing issue at the border. The ORR data showed that more than 700 children have already been separated from adults claiming to be their parents since October 2017, including more than 100 children under the age of four. DHS stated the department does not currently separate families at the border for deterrence purposes, separating children from adult traveling companions when DHS “cannot ascertain the parental relationship.” However, at least in one case, DHS waited up to four months to determine a parental relationship.
Meanwhile, the Department of Health and Human Services (HHS) recently disclosed that ORR has lost track of nearly 1,500 unaccompanied migrant children placed with sponsors in the U.S., increasing concerns that the children could end up in the custody of human traffickers or used as laborers. The new details could raise further concerns about implementing a policy to criminally prosecute parents crossing the U.S.-Mexico border with their children. Under such a plan, the children would be referred to ORR and would likely need
Central America Migrant Caravan Arrives at the U.S. Border
At least 130 people, mostly women and children, arrived at the U.S.-Mexico border this week as part of a caravan of Central American migrants seeking asylum in the United States. The migrants, looking for protection from persecution and violence in their home countries, are part of the caravan that reportedly prompted President Trump to deploy National Guard troops to the southwest border. The migrants are expected to turn themselves in to U.S. Customs and Border Protection (CBP) officers and agents and request asylum, consistent with U.S. law.
The Department of Homeland Security (DHS) stated on April 25 that it was monitoring the travel of the caravan towards the southwest border and doing everything it can “to secure our borders and enforce the law.” DHS suggested that the migrants should seek asylum protections “in the first safe country they enter,” including Mexico. DHS also warned the migrants that they could be prosecuted, detained and quickly deported, presumably if they are found not to have a valid asylum claim.
A Reuters poll showed 55 percent of Americans think President Trump’s decision to send National Guard troops to the border is effective in the short term, but only 49 percent think it will be effective in the long term.
Justice Department Will Continue Legal Orientation Program (LOP)
Attorney General Sessions testified on April 25 that the Department of Justice (DOJ) will continue the Legal Orientation Program (LOP), a legal-advice program offered to detained immigrants facing deportation. The decision represented a reversal of a DOJ announcement two weeks ago that the department would suspend the program on April 30. Sessions told the Senate Appropriations subcommittee on Commerce, Justice, Science, and Related Agencies that the DOJ still plans to conduct an audit on the program’s cost-effectiveness, but would no longer “pause” the program while it conducts the audit. Sessions did not rule out ending the program in the future and did not mention in his testimony the “help desk” program for those who call seeking legal advice. The LOP and “help desk” program receive about $8 million a year in federal funding. A 2012 DOJ cost analysis showed that the programs resulted in a net savings to the government of about $18 million.
The DOJ’s announcement on April 11 that it would suspend the two programs was met with strong opposition from members of Congress and immigration advocates. They argued that the programs provide a legal lifeline for undocumented immigrants facing deportation.
Trump Administration Ends Temporary Protected Status (TPS) for Nepal
Secretary Nielsen announced on April 26 that DHS would end Temporary Protected Status (TPS) for Nepal. The decision will affect nearly 9,000 Nepalese immigrants in the U.S., who will have 12 months to leave the country before their status expires. Nepal obtained TPS designation after a 7.8-magnitude earthquake devastated the country in April 2015. The termination of Nepal’s TPS designation follows the Trump administration’s decision to end TPS for El Salvador, Haiti, Sudan and Nicaragua. These decisions have affected hundreds of thousands of TPS holders – many who have lived in the U.S. for more than a decade and who are parents of U.S. citizen children.
Nielsen’s decision on whether to terminate TPS for about 57,000 Hondurans is expected on May 6, 2018.
Foreign Student Training Program Changed Under New USCIS Interpretation
USCIS recently changed to a training program for foreign STEM graduates, which will restrict where the trainees will be allowed to work. Under the Optional Practical Training (OPT) program, foreign graduates with degrees in science, technology, engineering, and mathematics are currently eligible to work in the United States and receive practical training in their respective fields. The USCIS rule will now limit STEM trainees to working at their employers’ headquarters, barring them from offsite placement on third-party client sites. The change is grounded in the agency’s new interpretation of a 2015 Obama-era regulation which mandates employer supervision and mentorship of OPT trainees but did not specifically prohibit offsite placement. USCIS updated its website to reflect the change in January without an announcement.
There is some concern that the absence of a formal announcement by USCIS might have led foreign STEM graduates who are already on third-party sites to unknowingly violate the STEM OPT rules. As a result, some may be denied a transition to an H-1B visa on those grounds.
State & Local
New York Governor Sends Cease-and-Desist Letter to ICE
On April 25, Governor Andrew Cuomo (D-New York) issued a cease-and-desist letter to ICE, accusing the agency of employing unlawful and “increasingly reckless” tactics that endanger public safety. Cuomo’s legal action comes a week after ICE agents arrested 225 individuals over the course of a six-day immigration raid targeting local neighborhoods and worksites in New York City and surrounding counties. At a news conference and in a letter to ICE, Cuomo cited multiple incidents, including an immigration raid at a dairy farm in upstate New York, in which plain-clothed ICE agents may have unlawfully entered private property without a warrant and without identifying themselves. Cuomo also signed an executive order prohibiting ICE agents from making arrests at state facilities without presenting a judicial warrant or order.
ICE acting-director Thomas Homan responded to the actions by accusing the governor of “grandstanding” and characterizing the governor’s remarks as “inaccurate” and “an insult” to the department’s agents.
GOVERNMENT REPORTS
U.S. Government Accountability Office (GAO): Unaccompanied Children: DHS and HHS Have Taken Steps to Improve Transfers and Monitoring of Care, but Action Still Needed, April 26, 2018 (Testimony by Kathryn A. Larin)
This GAO testimony before the Senate Committee on Homeland Security and Governmental Affairs discussed efforts by the Departments of Homeland Security (DHS) and Health and Human Services (HHS) to improve the placement and care of unaccompanied children.
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
Fact Sheet: Temporary Protected Status
This fact sheet provides an overview of Temporary Protected Status (TPS), including the process for designating a country for TPS, who is eligible, how many individuals are currently granted TPS, and updated information on when TPS designations expire.
Iowa’s Anti-“Sanctuary City” Law Undermines Trust between Immigrant Communities and Law Enforcement
This document provides a summary of Iowa Senate File 481, a recently passed anti-“sanctuary cities” bill, and examines how the bill’s provisions will undermine trust between immigrant communities and law enforcement.
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*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.