Legislative Bulletin – Friday, December 6, 2019

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. 5282

Military Family Parole in Place Act

The bill would direct the Department of Homeland Security (DHS), Department of Defense (DoD) and the Department of Veterans Affairs to jointly approve the denial of a parole application for a family member of U.S. military servicemembers and veterans. This is a companion bill to S. 2797.

Sponsored by Representative Gil Cisneros (D-California) (4 cosponsors – 0 Republicans, 4 Democrats)

12/03/2019 Introduced in the House by Representative Cisneros

12/03/2019 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session on the week of Monday, December 9, 2019.

The U.S. House of Representatives will be in session from Monday, December 9, 2019 through Thursday, December 12, 2019.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups currently scheduled in the U.S. Senate or the U.S. House of Representatives.

THEMES IN WASHINGTON THIS WEEK

Federal

OIG Report: DHS Was Expecting to Separate More Than 26,000 Families, Separated Families Despite Deficient Tracking System

The Department of Homeland Security (DHS) was expecting to separate more than 26,000 migrant children before the ““zero-tolerance” prosecution policy that led to family separations was rescinded after strong public outcry in June 2018, according to a DHS Office of Inspector General (OIG) report published on December 4. The report said DHS ultimately identified 3,014 migrant families separated as a result of the “zero-tolerance” policy from May into late June 2018, but DHS OIG could not confirm the accuracy of the figure. The report found it is possible that 1,233 additional migrant children were not properly recorded and tracked by DHS, making it impossible to ascertain whether those children have been found and reunified with their families. The report concluded that “without a reliable account of all family relationships, we cannot confirm that DHS has identified all family separations, and therefore, we cannot determine whether [the government has] reunified these families.”

The DHS OIG report also found that U.S. Customs and Border Protection (CBP), the agency that handled the family separations at the border, was aware its system to track separated family members was deficient since at least November 2017, when a pilot version of the ““zero-tolerance” prosecution policy was first implemented in El Paso, Texas. The report stated CBP failed to improve its tracking systems before the “zero-tolerance” policy was expanded throughout the Southern border from May through June 2018. One senior CBP official told the DHS OIG that CBP did not properly resolve the tracking deficiencies because there was pressure to quickly implement the “zero-tolerance” prosecution policy.

Migrant Families Under MPP Sending Children Across U.S.-Mexico Alone

The Department of Health and Human Services (HHS) has reportedly identified more than 135 migrant children sent across the U.S.-Mexico border alone after waiting with their families in Mexico for several months under the Trump administration’s Migrant Protection Protocols (MPP), known as the “Remain in Mexico” policy. Aid workers said at least 50 children have made the border crossing alone just in the past three weeks, with some children being as young as three-years old. In one case, a four-year old girl told HHS case managers her grandmother explained to her she had to cross the border alone. The case managers were able to connect with the grandmother in Mexico, who explained she was worried for her and her granddaughter’s health and safety in Mexico.

The cases appear to suggest the Trump administration’s “Remain in Mexico” policy could be having the unintended consequence of pressuring migrant families to encourage their children to cross back into the U.S. alone. Under the “Remain in Mexico” policy, migrants, including migrant families, who request asylum are sent back to wait in Mexico while their asylum cases move forward in the U.S. immigration court system. However, migrant children who cross the U.S.-Mexico border alone are not subject to the “Remain in Mexico” policy because, by law, they must be transferred to HHS custody. So far, at least 54,000 asylum seekers have been returned to wait in Mexico.

Migrants returned to Mexico are oftentimes living in makeshift camps, often for months, sleeping outside in the cold, and sometimes getting sick and living without access to basic hygiene resources like a bathroom. The camps are usually situated in Mexico’s northern border cities, which rank among the most dangerous in the country. Cartel groups and other illicit organizations target migrants with extortion and/or kidnappings, among other crimes.

CBP Rejected CDC Recommendation for Flu Vaccine for Migrants in Custody

CBP rejected a recommendation from the Center for Disease Control (CDC) to provide influenza vaccines for migrants detained in CBP facilities, according to a report from the Washington Post published on November 25. The recommendation was made in January 2019 after CDC officials visited detention facilities at CBP’s request. The CDC specifically suggested a vaccination campaign prioritizing high-risk groups like children and pregnant women. In the months after the CDC made the recommendation for vaccines, which CBP rejected, the flu killed at least two detained children and sickened hundreds of others, including Border Patrol agents. According to newly released evidence, in at least one of the fatal cases CBP failed to provide treatment to a child as his condition worsened during the night.

CBP’s rejection of the recommendation was revealed in a November 7 letter from CDC director Robert Redfield to Rep. Rosa DeLauro (D-Connecticut). Rep. DeLauro was investigating the matter in her role as chair of the Appropriations subcommittee dedicated to overseeing Health and Human Services.  Other agencies tasked with detaining migrants, such as Immigration and Customs Enforcement (ICE) and the HHS Office of Refugee Resettlement (ORR), provide flu vaccines to detainees. A spokeswoman for CBP said implementing the vaccines would be, “logistically very challenging,” and cited other efforts made to provide medical support in their detention facilities. Rep. DeLauro called the decision not to implement a vaccination campaign “unconscionable.”

Kushner to Manage Border Barrier Strategy as Construction Moves Forward

President Trump has reportedly designated Jared Kushner, his son-in-law and a senior White House advisor, to manage the Trump administration’s construction of physical barriers along the U.S.-Mexico border, according to a report from the Washington Post. Kushner reportedly convenes biweekly meetings in the White House, where he requests updates on the barrier construction to accomplish the White House’s goal of erecting up to 450 miles of additional physical barriers before the end of 2020. Kushner is reportedly pressing CBP and the U.S. Army Corps of Engineers to expedite the use of eminent domain along the Southern border to acquire the private property needed to construct some of the additional physical barriers. Government officials estimate more than 800 filings to seize private property will need to be made in the coming months to accomplish the White House’s request. Kushner has reportedly told other White House officials that he now oversees the administration’s border barrier construction projects.

As part of the Trump administration’s efforts to construct additional physical barriers along the Southern border, the Department of Defense granted a $400 million contract to the North Dakota-based Fisher Sand and Gavel company on December 2. President Trump had previously pushed for Fisher to receive a physical barrier construction contract, despite being told by government officials that the company’s bids did not meet standards. The contract is designated to build a span of physical barriers across the Cabeza Prieta National Wildlife Refuge in Yuma, County, Arizona, with a target completion date of December 30, 2020. On December 4, Rep. Bennie Thompson (D-Mississippi), Chairman of the House Committee on Homeland Security, sent a letter to the Defense Department Office of Inspector General calling for an investigation into the contract. Thompson argued there are “concerns about the possibility of inappropriate influence on … [the] contracting decision.”

In addition, on December 4, a local state judge in South Texas issued a temporary restraining order blocking We Build the Wall from building a private wall on a section of land near the Rio Grande. State Judge Keno Vasquez ruled the National Butterfly Center, a 100-acre habit near the project’s location, would suffer “imminent and irreparable harm” if construction were to proceed.

ICE Arrests 90 More Foreign Students for Enrolling in Fake DHS University

On November 27, ICE announced that 90 additional foreign students were arrested in a DHS operation designed to target student visa fraud. The operation allowed foreign students to receive an F-1 student visa by enrolling in a fake university run by DHS in eastern Michigan called the University of Farmington. ICE developed an extensive fake profile for the university, which included a fake website with a crest, motto, and pictures of campus. Despite over 600 enrollees paying about $12,000 a year in tuition, the university offered no educational classes or programs. The total number arrested in the sting operation now stands at 250, including eight foreign students who were also “hired” as recruiters, some in exchange for tuition credits.

While most of the arrested students have voluntarily returned to their country of nationality, 10% have chosen to contest their removal orders on grounds of unfair entrapment. The University of Farmington was certified as legitimate on the DHS website, and potential recruits were told they would be able to attend the university in a way that would not “interrupt their careers.” ICE maintains that all arrested students were aware they were engaging in visa fraud. A lawyer representing the students has said the operation “preyed upon” unknowing foreigners and was a money-making scheme for ICE.

Legal

Federal Judge Blocks Trump Administration’s Health Insurance Rule for Immigrants

A federal judge in Oregon issued a preliminary injunction on November 24 blocking the Trump administration’s presidential proclamation requiring future immigrants to provide proof they have health insurance or can afford to pay for medical care before being issued a visa that could lead to lawful permanent resident (LPR) status. U.S. District Judge Michael Simon ruled that the proclamation directly conflicts with current immigration law and that the president may not “expressly override” congressional immigration policy. Judge Simon also noted that the Trump administration failed to offer “national security or foreign relations justification for this sweeping change in immigration law.” Judge Simon previously issued an emergency temporary restraining order on November 3 in response to the proclamation. Judge Simon’s decision blocks the proclamation while a lawsuit challenging its constitutionality makes its way through the courts. Immigration advocates note that the proclamation unfairly targets low-income immigrants coming into the U.S. and could reduce legal immigration by up to two-thirds.

Ninth Circuit Lifts Preliminary Injunction on “Public Charge” Rule, But Policy Remains Blocked Nationwide

The U.S. Ninth Circuit Court of Appeals lifted two preliminary injunctions on December 5 that were blocking the Trump administration’s final rule broadening the definition of the term “public charge.” The three-judge panel voted, 2 to 1, to stay the preliminary injunctions issued by federal judges in Oakland, California and Spokane, Washington. However, the “public charge” rule remains blocked nationwide because federal judges in Maryland and New York also blocked the policy before it went into effect in October and those decisions are not impacted by the ruling from the Ninth Circuit.

The majority on the Ninth Circuit panel argued the Trump administration is likely to prevail in its arguments that it has the legal authority to issue regulations to broaden the definition of “public charge.” U.S. Circuit Court Judge Jay Bybee, writing for the majority, said the phrase “public charge” has been “interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.” In addition to the 73-page majority decision, Bybee included a five-page addendum in which he wrote he was “perplexed and perturbed” by Congress’ inaction on immigration issues. Bybee said the courts had seen “case after case come…to address the nation’s immigration challenges” and called on a “feckless” Congress “to come to the table and grapple with these issues.”

The Trump administration’s “public charge” rule, which was set to take effect on October 15, would allow federal officials to reject immigrants applying for a green card, an immigrant visa, or a temporary visa if they have previously accessed or are deemed likely to rely on certain forms of public assistance.

San Diego Immigration Judges Terminate “Remain in Mexico” Cases at 33 Percent Rate

Immigration judges in San Diego, California have terminated about 33% of more than 12,600 Migration Protection Protocols (MPP) cases, also known as the “Remain in Mexico” policy, under their jurisdiction between January and September of 2019.The immigration judges have ruled in those cases that asylum seekers waiting in Mexico were not properly notified of upcoming court hearings in the U.S. or that other due process rights were violated. Terminating “Remain in Mexico” cases does not allow asylum seekers to stay in the U.S. However, the case terminations prevents a negative court decision that may ban asylum seekers from entering the U.S. for 10 years and require felony charges resulting from illegal border crossings in the future.

The high rate of dismissals in San Diego compares to the lower rate from judges in El Paso, Texas, who have terminated 1% of 14,000 MPP cases over the same time period. Immigration advocates said the high number of dismissals in San Diego signifies that the government’s cases do not meet legal standards.

GOVERNMENT REPORTS

Government Accountability Office (GAO): Immigration Enforcement: Arrests, Detentions, and Removals, and Issues Related to Selected Populations (December 5, 2019)

This report provides an overview of Immigration and Customs Enforcement (ICE) apprehensions, detentions, and removals from calendar years 2015 to 2018, summarizing the overall numbers and demographics of apprehended immigrants. The report also provides an overview of ICE priorities and describes the data that ICE collects from immigrants.

Government Accountability Office (GAO): Immigration Enforcement: Immigration-Related Prosecutions Increased from 2017 to 2018 in Response to U.S. Attorney General’s Direction (December 3, 2019)

This report summarizes efforts in 2017 and 2018 by then-Attorney General Jeff Sessions to prioritize prosecutions of immigration-related offenses, such as illegal or improper entry. The report provides an overview of the subsequent increase in immigration-related prosecutions and in resources dedicated towards those prosecutions.

Office of Inspector General (OIG): DHS Lacked Technology Needed to Successfully Account for Separated Families (November 27, 2019)

This report summarizes Department of Homeland Security (DHS) efforts to track separated migrant families in the aftermath of the “zero-tolerance” prosecution policy implemented in fiscal year (FY) 2018. The report concludes that DHS did not have the technological capacity to track separated families and that the total number of families separated cannot be determined. It documents over 1,000 children with potential family relationships who were not accurately recorded by U.S. Customs and Border Protection (CBP).

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Bill Summary: Farm Workforce Modernization Act

This is a bill summary of the Farm Workforce Modernization Act of 2019 (H.R. 5038), which seeks to reform the process by which temporary foreign workers come to the United States to work in agriculture. The bill includes a pathway to legalization for certain undocumented agricultural workers and reforms to the existing H-2A temporary agricultural workers visa program.

Analysis: Executive Order on Enhancing State and Local Involvement in Refugee Resettlement

This document is an analysis of President Trump’s “Executive Order on Enhancing State and Local Involvement in Refugee Resettlement,” issued on September 26, 2019, that will prevent refugee resettlement throughout the United States except in those states and localities that have submitted written consent to have refugees resettled.

Eminent Domain Along the Southern Border: Government Seizures of Private Property

This fact sheet provides an overview of eminent domain and how the federal government utilizes it to construct physical barriers, including fencing, along the U.S.-Mexico border.

* * *

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

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