Legislative Bulletin — Friday, April 9, 2021

BILLS INTRODUCED AND CONSIDERED
LEGISLATIVE FLOOR CALENDAR
UPCOMING HEARINGS AND MARKUPS
THEMES IN WASHINGTON THIS WEEK
GOVERNMENT REPORTS
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

BILLS INTRODUCED AND CONSIDERED

There were no immigration-related bills introduced or considered the week of Monday, April 5, 2021.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, April 12, 2021.

The U.S. House of Representatives will be in session from Tuesday, April 13, 2021 to Friday, April 16, 2021.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups currently scheduled for the week of Monday, April 12, 2021.

THEMES IN WASHINGTON THIS WEEK

Federal

March Border Numbers Reveal Rise in Migration, New Information on Processing of Children, Families, and Single Adults

On April 8, U.S. Customs and Border Protection (CBP) released official data on the number of migrants the agency had apprehended or encountered at the Southwest border in March. The data showed an increase in overall encounters of unauthorized migrants, rising from 100,441 in February to 172,331 in March. Of the 172,331 encounters, CBP reported that 72,672 were families and unaccompanied children, an increase from February but still below a previous peak in May 2019. The number of arriving unaccompanied children rose from 9,457 to 18,890, remaining about 11% of overall encounters but representing the highest monthly total on record.

CBP reported that the overall numbers for March were inflated by high recidivism rates, or a number of single adult migrants making multiple attempts to cross into the United States in quick succession. According to CBP, approximately 50,000 of the total encounters represented repeat crossers who had been summarily returned before trying to reenter. High recidivism rates have been a feature of monthly CBP data releases since March 2020, when the Trump administration issued a rule that gave CBP the authority to immediately expel or deport anyone who attempts to cross the border without authorization, including asylum seekers and families. These “Title 42” expulsions carry fewer penalties than traditional processing for repeat attempts of unauthorized entry, and have resulted in recidivism rates rising dramatically. The March 2021 recidivism rate — 28% — was four times the average rate found in Fiscal Year (FY) 2019, when CBP reported just 7% of encounters were repeat crossers.

While the increasing number of unaccompanied children (UACs) continues to pose challenges to the Biden administration’s border response, the administration has made progress in more expeditiously moving children out of CBP custody. When children at the border are determined to be unaccompanied, they are required by law to be transferred within 72 hours from CBP holding cells to Office of Refugee Resettlement (ORR) shelters. The increase in arriving UACs resulted in ORR shelters reaching capacity and children getting backed up in severely overcrowded CBP holding centers. As of April 8, the administration has opened at least 10 emergency housing sites under HHS, comprised of eight “Emergency Intake Sites” and two “Influx Care Facilities.” The week of April 5, HHS reported that for the first time in several weeks, the total number of children in CBP custody declined as more children were transferred to emergency housing sites.

While the majority of all migrant arrivals continue to be expelled under Title 42, approximately two thirds of arriving families were not expelled and instead allowed to stay in the U.S. to pursue their asylum claims in immigration court. The criteria for why some families are admitted and others are expelled remains unclear, but relevant factors appear to include vulnerability of the family, age of the children, location along the border, and the capacity of nearby processing facilities in the U.S. and Mexico. According to an April 2 report, some Border Patrol officials have said there has also been a recent increase in reported “got aways,” or migrants who were observed to have crossed without authorization but were not apprehended. CBP has collected “got away” data since 2006, but has not published it because the data collected is unreliable.

Democrats Consider Including Immigration in Reconciliation Efforts

Democratic Members of Congress are reportedly discussing using a potential upcoming budget reconciliation bill as a vehicle for passing immigration reforms. The budget reconciliation process would allow Democrats and the Biden administration to avoid a Senate filibuster and pass legislation with a simple majority, but only provisions that affect government spending or revenues can be included in the reconciliation process.

On including immigration reforms in a reconciliation package, House Speaker Nancy Pelosi (D-California) said that, “we think we can make a case about the budget impacts of immigration in our country, and we are going to try to do that.” Senator Bob Menendez (D-New Jersey), who recently introduced a comprehensive immigration bill based on a proposal by President Biden, said that he would “not foreclose any tool that will ultimately allow Democrats to give a pathway to citizenship to as many undocumented immigrants as possible.”

Although a recent ruling by the Senate parliamentarian appears to permit multiple uses of the reconciliation process each fiscal year, it remains unclear which specific reform provisions Democrats will include in reconciliation proposals. The possible move has also received pushback from those on both sides of the aisle. Republicans have largely opposed any attempt to bypass the filibuster in the current Congress, and on April 7, Senator Joe Manchin (D-West Virginia) also criticized further attempts to use budget reconciliation and called for reforms to pass in a bipartisan manner.

The report comes after two immigration bills passed the House of Representatives with bipartisan support in March. The American Dream and Promise Act would provide a pathway to citizenship for Dreamers and Temporary Protected Status (TPS) holders, and the Farm Workforce Modernization Act would streamline and reform the H-2A agricultural guestworker program, provide a pathway to legal status for undocumented farmworkers, and require agriculture employers to implement a reformed “E-Verify” program to ensure workers are authorized. The fate of both bills in the Senate remains unclear.

Customs and Border Protection Rolls Out New Case Management Corps

On April 2, CBP graduated 39 individuals as the first class of Border Patrol processing coordinators. The non-law enforcement personnel will work inside Border Patrol stations and facilities to care for and process newly arrived migrants. CBP plans to graduate 300 additional processing coordinators each year for at least the next four years. The use of processing coordinators at the border has received broad support, as they will likely both improve conditions for immigrant detainees — including children and families — and allow CBP enforcement personnel to focus on securing the border.

Immigration advocates have applauded the move, but noted that the chief priority should still be getting children quickly out of Border Patrol custody and into ORR care.

Cass Sunstein to Lead Immigration Regulatory Rollbacks

According to an April 7 report, President Biden has assigned Cass Sunstein, former Harvard Law School professor and administrator of the Office of Information and Regulatory Affairs (OIRA) under the Obama administration, to oversee the rollback of numerous restrictive immigration policies and regulations that were implemented by the Trump administration.

Sunstein joined the Biden administration in February as a senior counselor at the Department of Homeland Security. At the time, DHS Secretary Alejandro Mayorkas said, “Cass is the nation’s foremost regulatory expert, and we are privileged to have him on our team to help us address a wide range of complex challenges.” According to some estimates, there are as many as 1,000 immigration regulations implemented under the Trump administration that Sunstein and his team at DHS may consider rolling back.

Sunstein drew criticism from some immigration advocates during his tenure in the Obama administration, where he was accused of holding up progressive regulatory priorities through employing extensive review processes.

Biden to Restart Limited Border Wall Construction to Fill Existing Gaps

According to an April 5 Washington Times report, the Biden administration is considering restarting limited construction of border barriers at certain locations along the Southern border. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas reportedly that DHS was considering addressing some “gaps in the wall” and that CBP had submitted a plan for additional barrier construction.

In late January, CBP had officially notified its contractors to stop all border barrier construction projects following President Biden’s January 20 executive order, which terminated the national emergency declared at the southern border by the Trump administration and directed the end of all border wall construction. The executive order further called for the Department of Defense, DHS, and the Office of Management and Budget (OMB) to come up with a plan within 60 days to redirect available funds that had previously been allocated for the construction of border barriers.

The sudden pause in construction left notable gaps in certain locations along the border, including an area in Cochise County, Arizona, where the sheriff has reported a marked increase in unauthorized crossings.

According to a March 23 report, the Government Accountability Office (GAO) is reviewing the legality of the administration’s pause on the construction of border barriers. The report came after a group of 40 Senate Republicans sent a letter to GAO accusing the Biden administration of refusing to spend congressionally appropriated funds on border wall construction.

Legal

Court Filing: 61 Migrant Children Reunited with Parents, Leaving 445 Still Separated

According to an April 7 court filing, 61 families who were separated at the border as the result of the Trump administration’s “zero tolerance” border policy have been reunited since February. The filing further notes that approximately 445 children remain separated from their parents out of an estimated 4,500 separations that occurred as a result of “zero tolerance” and other Trump-era policies.

Most of the reunifications have been coordinated by a steering committee established as part of an ongoing court case arising from the Trump-era border policies. The committee consists of a group of lawyers and immigrant rights groups, including the American Civil Liberties Union (ACLU) and the Women’s Refugee Commission (WRC). On February 2, President Biden also established a task force housed in the Department of Homeland Security (DHS) to assist with reuniting the separated families. According to an April 7 report, the Biden administration is combing through thousands of additional files to determine whether more children were separated than was previously known.

Lee Gelernt of the ACLU’s Immigrant Rights Project said that the steering committee and the Biden administration still “have enormous work yet to do [to] fix the terrible abuses of the Trump administration’s family separation practice.”

Texas and Louisiana Sue Government for Deportation Holds

On April 6, the states of Texas and Louisiana filed a lawsuit against the federal government alleging that immigration authorities have failed to deport immigrants who have been convicted of crimes since President Biden took office. The lawsuit blames the Biden administration for dropping or no longer using detainer requests, which ask for local law enforcement officials to involve themselves in federal immigration enforcement functions, including by holding individuals in prison or detention after their release date so they can be placed in deportation proceedings. U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ) have not commented on the lawsuit.

Immigration detainers are requests from federal immigration authorities to state and local law enforcement officials to hold foreign nationals in their custody for up to 48 hours after they would otherwise have been released. Detainers are not mandatory under federal law – they are requests that state and local authorities can choose to comply with or decline to honor. Many jurisdictions opt not to honor detainers, citing the exposure to civil liability for wrongfully holding someone past their release time, as well as concerns that requiring local law enforcement to play a role in certain federal immigration enforcement activities can undermine public safety and community trust.

State and Local

California Vaccinates Essential Immigrant Farmworkers

According to an April 3 report, California has launched a large-scale campaign to vaccinate its many immigrant farmworkers. The campaign involves establishing 20 mobile vaccination sites that will vaccinate workers on the job in the fields. Farms across the country experienced large-scale outbreaks of COVID-19 over the past year, with a recent estimate finding that about 9,000 total farmworkers died due to the virus. California is one of many states to have recognized farmworkers as part of its essential workforce and make them vaccine eligible.

According to some estimates, as many as 70% of the approximately three million farmworkers in the U.S. are undocumented immigrants.

GOVERNMENT REPORTS

Congressional Research Service (CRS): Child Migrants at the Border: The Flores Settlement Agreement and Other Legal Developments; April 1, 2021

This “In Focus” report is about the Flores Settlement Agreement and how it relates to the treatment of migrant children. The Flores Agreement sets standards of care for detaining, releasing, and overall treatment of both accompanied and unaccompanied minors in the immigration system.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

What’s Happening at the Southern Border, Explained

This explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs. It also provides additional context on reports of increased migration to the U.S. and the treatment of migrant families seeking entry at the border.

Fact Sheet: Family Separation at the U.S.-Mexico Border

This fact sheet provides an updated overview of the issue of family separation at the U.S.-Mexico border, including information on the U.S. Department of Justice’s (DOJ) former “zero-tolerance policy” that entailed prosecuting all individuals crossing the border between ports of entry without authorization.

Why American Farms Need Immigration Reform

This op-ed describes the urgent need for agriculture-based immigration reform. It discusses the reasons behind the current agricultural labor shortage, the benefits of reforming the H-2A guestworker program, and the need to provide an earned pathway to permanent status for current undocumented farmworkers.

* * *

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

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