Legislative Bulletin – Friday, December 21, 2018

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

H.R. 695

Department of Defense Appropriations Act, 2018

This bill is the legislative vehicle to fund part of the federal government until February 8, 2019, including the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the State Department.

Sponsored by Representative Adam Schiff (D-California) (46 cosponsors – 21 Republicans, 25 Democrats)

01/24/2017 Introduced in the House by Representative Schiff

05/22/2017 Passed in the House by voice vote

10/16/2017 Passed in the Senate by Unanimous Consent

01/30/2018 House agrees to the Senate amendments to the original bill by a 250 to 166 vote

12/19/2018 Senate agrees by voice vote to the House amendments with a new amendment (SA 4163) to fund parts of the federal government at the current spending level until February 8, 2019

12/20/2018 House agrees by a 217 to 185 vote to the Senate amendment with a new House amendment that in part provides $5.7 billion in border security

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will not be in session until the start of the 116th U.S. Congress on Thursday, January 3, 2019.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups scheduled for the next two weeks that end on Friday, January 4, 2019.

THEMES IN WASHINGTON THIS WEEK

Federal

House Approves $5.7 Billion Border Wall Spending Bill, Setting Up Possible Government Shutdown

The U.S. House of Representatives passed a short-term continuing resolution on December 20 that provides an estimated $5.7 billion for a wall in the Southern border. The House vote was scheduled shortly after President Trump declared he would not sign any funding bill that does not include a significant amount of additional border security funding for a border wall, increasing the possibility of a partial government shutdown before the holidays. The House vote creates a standoff with the Senate, which on December 19 passed a spending bill by voice vote that would fund parts of the federal government at the current spending levels until February 8, 2019. The Senate is scheduled to consider the House bill on December 21, but it is unlikely to receive the required 60 votes to move forward. The House bill is also scheduled to fund the government until February 8, 2019.

President Trump’s decision to turn down the Senate’s short-term spending bill came after a flurry of criticism from his supporters in right-wing media and the House Freedom Caucus over the lack of additional border security spending in the Senate bill. Just one day earlier, the White House appeared to soften its opposition to approving a bill that does not include $5 billion in additional border wall funding. Senate Majority Leader Mitch McConnell (R-Kentucky) reportedly appealed directly to the White House to support a short-term solution, stating that a partial government shutdown “is not a good idea…the American people don’t like it.” On December 19, McConnell said that the White House was “flexible” on border wall funding.

That same day, President Trump stated that the border wall will be built “one way or the other,” suggesting that the U.S. military could construct the barrier and tweeted, without substantiation, that the new trade deal with Mexico would somehow pay for the wall. The White House reiterated President Trump’s comments, noting that there are “options” to fund the border wall. White House Press Secretary Sarah Sanders said that President Trump petitioned his Cabinet agencies to “look and see if they have money that can be used” to build physical barriers along the U.S.-Mexico border. Under federal law, money appropriated by Congress cannot be reprogrammed for other purposes without Congress’s consent.

Funding for several government departments, including the Department of Justice and the Department of Homeland Security, is set to expire on December 21. Trump has warned of a “very long shutdown” if Senate Democrats do not vote for border wall funding.

Nielsen Announces Directive to Return Asylum Seekers to Mexico while U.S. Cases Proceed

DHS Secretary Kirstjen Nielsen announced on December 20 that the U.S. will begin the process of sending asylum seekers to Mexico to wait while their requests for asylum move forward in U.S., referring to the new protocol as “catch and return.” Under the policy, individuals who request asylum in the U.S., including those from Central America and elsewhere, would be processed and quickly returned to Mexico. A DHS spokesperson said the policy will apply both to individuals who request asylum at ports of entry or after entering the U.S. without documentation between ports of entry. Currently, asylum seekers are permitted to stay in the U.S. during the duration of their immigration court proceedings, a process that can take months or even years.

Nielsen said the U.S. notified the Mexican government of the new policy. In response, Mexico independently determined “that they will commit to implement essential measures on their side of the borders” by providing asylum seekers with humanitarian visas that allow them to enter, leave and work in Mexico. Nielsen said the new protocol will help reduce “illegal immigration by removing one of the key incentives that encourages…the dangerous journey to the U.S.”

In contrast, immigration advocates noted that the new policy will create “additional chaos” at the border, represents an abdication of U.S. humanitarian leadership, and forces asylum seekers in dangerous situations. Advocates also noted that the process will negatively impact due process rights for asylum seekers by preventing them from having enough time with their lawyers in the U.S. to prepare their cases.

Trump Administration Defends Policies, Emergency Response after Death of Seven-Year Old Girl

The White House stated on December 14 that the Trump administration’s policies did not contribute to the death of seven-year-old Jakelin Caal Maquin, who died of dehydration and shock on December 7 after she and her father presented themselves to Border Patrol agents at a remote border crossing in Southern New Mexico. Following Jakelin’s death, the Border Patrol said its agents did “everything in their power” to provide emergency services. The agency also said that Jakelin’s father had signed a form stating that his daughter was in good health. Yet, the form was reportedly in English, even though the father’s primary language is Q’eqchi’, a Mayan language. Jakelin reportedly fell ill in a bus drive to a Border Patrol station in Lordsburg, New Mexico. Jakelin’s family called for a neutral and transparent investigation following reports of her death.

On December 11, U.S. Customs and Border Protection (CBP) Commissioner Kevin R. McAleenan testified before the Senate Judiciary Committee that Border Patrol stations and their holding cells were ill-suited to handle families and children, and that more medical staff and social workers were needed to handle growing numbers of families and children coming to the U.S. McAleenan did not mention Jakelin’s death during the hearing, reportedly because he did not want to politicize the incident.

Lawmakers called for an investigation following news of Jakelin’s death. On December 19, a congressional delegation visited the Border Patrol station in New Mexico where Jakelin was taken before died. DHS reportedly told members of the delegation that they would not be able to talk with Border Patrol agents involved in Jakelin’s apprehension and detention. After the visit, Rep. Joaquin Castro (D-Texas) said that there “was nobody on board [in the bus] who could offer any kind of medical help to her” and called on McAleenan to “step down.” DHS Secretary Nielsen defended DHS’s handling of the case in a contentious hearing on December 20.

The DHS Office of Inspector General opened an investigation into Jakelin’s death and DHS’s conduct.

CBP Claims Ports of Entry at “Capacity” for Processing Asylum Seekers

On December 17, CBP stated that its processing system for asylum seekers to request protection in the U.S. “hit capacity” as a result of an “influx of Central American family units arriving at U.S. ports of entry without proper documentation.” CBP’s statement reportedly came in response to news reports that about 15 Honduran migrants, including a mother and her children who were photographed last month fleeing from tear gas at the U.S.-Mexico border, were not allowed into the border station at Otay Mesa, California on December 14. Advocates working with migrants at the U.S.-Mexico border quickly disputed CBP’s statement, saying that the agency was not being truthful about saying it is at capacity and its inability to process any more asylum seekers at ports of entry.

Meanwhile, a letter written by senior House Democrats to CBP Commissioner Kevin R. McAleenan claimed that CBP was improperly limiting asylum applications to deter people from presenting their claims. According to the letter, an CBP official in a closed congressional briefing on December 6 acknowledged that CBP agents were limiting asylum applications at ports of entry because they were concerned that allowing too many individuals to apply for asylum would inspire more asylum seekers to come to the U.S. The statement appears to contradict official CBP claims that “metering,” which is the practice of limiting the number of individuals who can request asylum at a port of entry on any day, is due to a lack of detention space and personnel. The letter notes that the comments raise “significant questions about the Department’s compliance with existing statutory authority,” which require CBP to process and provide a credible fear screening for those who intend to apply for asylum. CBP stated on December 17 that the comments in the briefing were taken out of context and reiterated that its processing system has “hit capacity.”

Trump Administration Revises Policy on Releasing Migrant Children

The Trump administration announced on December 18 that it would no longer require extensive background checks for all members of a household living with sponsors of unaccompanied migrant children, a policy reversal that could allow more than 2,000 children in government custody to be released to sponsors who are already screened. The Department of Health and Human Services (HHS), which oversees the care of migrant children, said the policy of conducting background checks for all adults in households with sponsors increased the time migrant children remained in government custody and did not turn up more red flags than usual. HHS said it will continue to conduct criminal and extensive background checks for potential sponsors and continue to implement an information-sharing agreement that allows U.S. Immigration and Customs Enforcement (ICE) to review the fingerprints of potential sponsors.

The policy reversal comes as the number of migrant children in government shelters reached a record-high 14,700 as of December 17, in large part driven by a reduction in the number of children released to live with sponsors, who are usually their parents or other close relatives living in the U.S. Advocates who work with migrant children note that the increased background checks and ICE’s apprehension of sponsors is resulting in more children being detained in long-term federal custody while their asylum claims go through the immigration court system. Last week, ICE announced it apprehended 170 individuals without legal status who came forward to sponsor migrant children in government custody.

U.S. Pledges More than $10 Billion in Investments to Central America and Mexico  

The State Department announced on December 18 that the U.S. would commit $10.6 billion in private and public investments in Central America and Mexico to spur economic development and address the root causes of migration. Per the announcement, the U.S. pledged $5.8 billion for investments in Guatemala, Honduras and El Salvador, and about $4.8 billion for investments in Mexico, mainly in its southern states. Most of the funding is reportedly a reaffirmation of exiting pledges allocated by Congress or Overseas Private Investment Corporation (OPIC) funding contingent on “commercially viable projects.” About $4.5 billion of the total amount comes from new loans, loan guarantees and other private-sector funds that could become available through OPIC.

Mexico’s foreign minister praised the development proposal as a “very positive step,” signaling stronger collaboration between Mexico and U.S. governments. Mexican President Andres Manuel Lopez Obrador recently pushed for a “Marshall Plan” of $30 billion to mitigate poverty, violence, and drug-trafficking in the region. As recently as October, President Trump threatened to cut off aid to Guatemala, Honduras and El Salvador if they “were not able to do the job of stopping people from leaving their country and coming illegally to the U.S.”

Legal

Federal Judge Strikes Down Policy to Deny Asylum to Victims of Domestic, Gang Violence

On December 19, a federal judge in Washington, D.C. struck down several Trump administration policies that made it nearly impossible for victims of domestic violence or gang violence to seek asylum in the U.S. The decision also decreed that the plaintiffs – 12 adults and children who sought asylum in the U.S. but were denied protection – be allowed to return to the U.S. and make their asylum cases again.

U.S. District Judge Emmet G. Sullivan ruled that most of then-Attorney General Jeff Sessions’ June decision, known as Matter of A-B-, violates federal law. Sessions’ Matter of A-B- decision stated that claims pertaining to domestic violence or gang violence are generally not grounds for asylum. Judge Sullivan found that a “general rule that effectively bars [asylum] claims based on certain categories…is inconsistent with Congress’ intent to bring ‘United States refugee law into conformance with the [United Nations Protocol Relating to the Status of Refugees].’” Sullivan also found the decision to “neither adequately explained nor supported by agency precedent,” making it “arbitrary and capricious” in violation of the Administrative Procedures Act. He also blocked a requirement that applicants for asylum show harm by non-government actors was “government condoned” or that the government “demonstrated a complete helplessness to protect the victim.”

Following the decision, the Department of Justice filed a motion asking Sullivan to put his ruling on hold to the extent it applies to individuals other than the plaintiffs.

Federal Judge Extends Halt on Trump Administration Asylum Ban

On December 19, a federal judge in San Francisco extended his decision to block President Trump’s proclamation barring migrants from applying for asylum if they cross the U.S.-Mexico border between ports of entry. U.S. District Judge Jon Tigar ruled that the proclamation will remain on hold pending the outcome of a lawsuit challenging the case, which could take several months to resolve. Judge Tigar previously blocked the proclamation for 30 days on November 19, noting that it conflicts with existing law that permits individuals to request asylum regardless of how they entered the U.S.

President Trump signed the proclamation limiting asylum on November 9, 2018. The measure, which would limit access to asylum for migrants who crossed the U.S. border between ports of entry without proper documentation, was aimed at targeting asylum seekers traveling with the Central American caravan. In conjunction with the proclamation, the U.S. Department of Justice (DOJ) and DHS issued a joint interim final regulation making anyone who crosses the U.S. border between ports of entry ineligible to apply for asylum.

GOVERNMENT REPORTS

There were no immigration-related government reports published on the week of Monday, December 17, 2018.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Facebook Live Conversation on Appropriations and Government Funding

This Facebook Live conversation provides an overview of the annual appropriations process to fund the federal government and the current debate around funding for the Department of Homeland Security (DHS).

Retail Sector: Immigrants are Indispensable to U.S. Workforce

This infographic focuses on immigrants working in the U.S. retail sector, highlighting key facts about their demographics, income and contributions.

Transportation Sector: Immigrants are Indispensable to U.S. Workforce

This infographic focuses on immigrants working in the U.S. transportation sector, highlighting key facts about their demographics, income and contributions.

* * *

*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.

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