Legislative Bulletin – Friday, December 7, 2018



 S. 3706

United States Ports of Entry Threat and Operational Review Act

The bill requires the Department of Homeland Security (DHS) to develop a threat and operational analysis of ports of entry, and determine personnel, technology and infrastructure needs at each port of entry.

Sponsored by Senator John Cornyn (R-Texas) (1 cosponsors – 0 Republicans, 1 Democrat)

12/05/2018 Introduced in the Senate by Senator Cornyn

12/05/2018 Referred to the Senate Committee on Homeland Security and Governmental Affairs

S. 3713

The WALL Act

The bill provides $25 billion to construct a wall along the U.S.-Mexico border. The bill also creates new funding sources to pay for the border wall, such as increasing minimum fines on individuals apprehended crossing the U.S. border without documentation and establishing a minimum penalty for visa overstays.

Sponsored by Senator James Inhofe (R-Oklahoma) (3 cosponsors – 3 Republicans, 0 Democrats)

12/05/2018 Introduced in the Senate by Senator Inhofe

12/05/2018 Referred to the Senate Committee on Finance


The U.S. Senate will be in session the week of Monday, December 10, 2018.

The U.S. House of Representatives will be in session from Monday, December 10, 2018 to Thursday, December 13, 2018.


Oversight of U.S. Customs and Border Protection

Date: Tuesday, December 11, 2018 at 10:00 a.m. (Senate Judiciary Committee)

Location: 226 Dirksen Senate Office Building


Kevin K. McAleenan, Commissioner, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS)

Narcos: Transnational Cartels and Border Security

Date: Wednesday, December 12, 2018 at 2:30 p.m. (Senate Judiciary Subcommittee on Border Security and Immigration)

Location: 226 Dirksen Senate Office Building


Panel I

Janice Ayala, Director, Joint Task Force – Investigations, U.S. Department of Homeland Security (DHS)

Kemp Chester, Associate Director, National Heroin Coordination Group, Office of National Drug Control Policy

Paul F. Knierim, Deputy Chief of Operations, Office of Global Enforcement, Drug Enforcement Administration (DEA), Department of Justice (DOJ)

Carla L. Provost, Chief of the U.S. Border Patrol, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS)

Panel II

Chief Chris Magnus, Chief of Police, Tucson Police Department

Roger Noriega, Visiting Fellow, American Enterprise Institute

Celina Realuyo, Professor of Practice, William J. Perry Center for Hemispheric Defense Studies, National Defense University

Dr. Andrew Selee, President, Migration Policy Institute

Earl Wayne, Public Policy Fellow, The Woodrow Wilson International Center for Scholars



Congress Pushes Funding Deadline to Dec. 21, Continues Debate on Border Wall

On December 6, Congress passed a short continuing resolution to continue to fund parts of the federal government at current levels through December 21. The bipartisan agreement for a two-week extension was reached in order to afford Congress more time in light of the ceremonies this week honoring former President George H.W. Bush, who died on November 30. As December 21 approaches, the major sticking point concerns funding for President Trump’s proposed border wall. President Trump, House Minority Leader Nancy Pelosi (D-California) and Senate Minority Leader Chuck Schumer (D-New York) are scheduled to meet on December 11 to negotiate the matter.

Leading up to those discussions, on December 6, Pelosi said that she would not support an agreement to fund President Trump’s border wall, even in exchange for legal protections for Dreamers. Pelosi said the issues should not be linked because they are “two different subjects.” Earlier in the week, Pelosi pledged to pass the Dream Act next year to protect Dreamers.

Pelosi also proposed approving government spending bills that lawmakers have already agreed on, while passing a separate full-year continuing resolution extending current funding for the Department of Homeland Security (DHS). Pelosi said DHS funding should address border security, but not necessarily include additional border wall funding because most House Democrats consider the wall “immoral, ineffective and expensive.” Pelosi’s comments came after a number of House Democrats expressed “alarm and opposition” to comments made by Schumer about including more border security funding. Schumer later said the Senate’s bipartisan plan for $1.6 billion in additional border security funding does not include money for the 30-foot-high concrete wall the Trump administration supports. He said the funding can only be used for fencing and technology.

Meanwhile, President Trump claimed on December 3 that the U.S. would “save Billions of Dollars if the Democrats would give us the votes to build the Wall” and the wall “Pays for itself in two months,” two misleading and incorrect claims. President Trump threatened last week to force a partial government shutdown if Congress does not include an additional $5 billion in border security funding as part of the remaining bills to fund the federal government, but agreed to sign the two-week continuing resolution, which passed Congress by voice vote in both chambers.

Border Deployment Extended to January 31, While U.S. and Mexico Continue Talks

Secretary of Defense James Mattis approved a 45-day extension of active duty troops along the Southern border, pushing back the military’s mission end date to January 31. Separately, the U.S. and Mexico continue to negotiate a possible agreement on migrants and asylum seekers at the border.

The Pentagon did not specify how many of the 5,600 troops currently deployed at the border would stay, but the extension could reportedly take form as a rotation deployment through which different units would regularly rotate. The Pentagon’s 45-day extension came after DHS submitted a request to extend the military’s border deployment.

DHS Secretary Kirstjen Nielsen also requested that federal agencies redirect “any available civilian law enforcement personnel” to the Southern border to assist Border Patrol agents. The DHS request suggests that such law enforcement personnel could be deputized to “become Customs and Border Protection personnel” with the power to apprehend migrants crossing the border without authorization. In contrast, the Posse Comitatus Act prevents military troops from participating in domestic law enforcement activities, including immigration enforcement. The Justice Department plans to provide at least 33 Drug Enforcement Administration (DEA) agents and 11 staff members from the U.S. Marshals Service.

At the same time, the Trump administration continues to negotiate an agreement with Mexico’s new government that would require asylum seekers to stay in Mexico while their claims are processed in the U.S. The two countries have reportedly agreed to the broad outlines of the deal, but the deal has not yet been formalized. At the moment, thousands of migrants remain in Mexico, primarily in the city of Tijuana, waiting for an opportunity to apply for asylum in the U.S.

Trump Administration Considers Charging Asylum Fees

The Trump administration is reportedly considering charging a $50 application fee for certain individuals who apply for asylum. The proposal, which is part of a draft fee study regulation by U.S. Citizenship and Immigration Services (USCIS), would charge a $50 fee to asylum applicants already residing in the U.S., but would not apply to those who claim a fear of persecution at ports of entry or who apply for the protections while in deportation proceedings. The proposal does not include a fee waiver for those who cannot afford to pay the $50 fee. Under current policies, USCIS does not charge applicants for most humanitarian applications, including asylum applications. Advocates criticized the proposal, stating that it is another way for the Trump administration to make it more difficult to apply for asylum and could prevent legitimate asylum-seekers from receiving protection.

The number of asylum denials hit a record high under the Trump administration in fiscal year (FY) 2018. The Syracuse University’s Transactional Records Access Clearinghouse (TRAC) reported that about 65 percent of the 42,000 asylum cases heard in FY 2018 were denied, the most since TRAC started to track the data in 2001. The denial rate has been steadily growing since 2012, when immigration judges denied 42 percent of asylum cases. The increase in denials comes after the Justice Department imposed quotas on immigration judges, requiring that they complete at least 700 cases annually to receive a “satisfactory” performance review.

Border Patrol Apprehends More than 50,000 Individuals in November

U.S. Customs and Border Protection (CBP) published data this week showing that the Border Patrol apprehended 51,856 migrants crossing the U.S.-Mexico border without authorization in November, the highest number since the start of the Trump administration. The number of border apprehensions in November 2018 was roughly the same as October (51,001 migrants) and represented a 78 percent increase from November 2017 (29,085 migrants). On the whole, border apprehensions remain below the record level of border apprehensions of the early and mid-2000s, such as in November 2000 (78,587 migrants). Family units accounted for about half (25,172 migrants) of those apprehended crossing the border in November 2018, the highest figure since CBP started to track the number of apprehended families in 2012.

Immigrants in the Military Will Be Sent to Recruit Training Following Court Decision

In response to a recent decision by a federal court in California, the Pentagon will reportedly begin sending thousands of Lawful Permanent Residents (LPRs) enlisted in the military to basic training. The November 16 court decision blocked a Department of Defense (DoD) policy that made it more difficult for LPRs to serve in the military and utilize an expedited naturalization process to eventually become U.S. citizens. In compliance with the court order, the Pentagon reportedly issued an internal memo that directs each armed service to return to pre-October 13, 2017 practices for the admittance of LPRs into the military.

The blocked DoD policy, issued on October 13, 2017, prevented LPRs recruits from starting basic training until their background investigations were completed, a process that can take up to a year or more. The policy also extended the waiting period before LPRs in the military were eligible to apply for naturalization. Under the policy, LPRs needed 180 consecutive days of active duty service, whereas under the previous policy, they could apply after one day of active service.

Numerous military officials raised concerns over the DoD policy, noting it put LPR recruits in limbo, and, in some cases, could have led the military to miss recruitment goals.

Businesses Oppose Proposed “Public Charge” Rule as Public Comment Period Nears to End

Business leaders from across the U.S. voiced concern in a letter over the Trump administration’s proposed rule to change the legal meaning of the term “public charge,” arguing that the change would negatively impact hiring and further burden and slow down immigration processes in the U.S. The letter, signed by more than 120 business leaders, notes that such a policy would have a “devastating impact…on business growth, economic vitality and U.S. competitiveness.” The letter was submitted as one of more than 150,000 comments on the proposed rule. The public comment period to comment on the proposed rule closes on December 10.

The Trump administration issued the proposed regulations on October 10. The regulation would redefine “public charge” to reject immigrants applying for an immigrant visa (green card) or a temporary visa if they have previously accessed or are deemed likely to rely on certain forms of public assistance in the future.

USCIS Proposes Changes to the H-1B Filing Process

USCIS issued a notice of proposed rulemaking on December 3 that would amend the process for filing an H1-B visa for foreign workers in specialty occupations. First, the proposal would require employers to electronically register for a visa number. USCIS would subsequently run a lottery, and those employers whose visa numbers are selected would be able to file a completed H1-B visa application. Under the current policy, employers must file a completed H1-B application. Since USCIS receives more petitions than the allotted 85,000 visa cap, the agency runs a H1-B lottery to select applicants. USCIS projects that the proposal would create a more efficient and cost-effective H-1B cap petition process.

USCIS also proposes to change the process by which USCIS counts H-1B registrations. USCIS will first fill the 65,000 general spots  from registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption, which reserves 20,000 spots for holders of advanced degrees from U.S. universities. Second, USCIS will select a sufficient number from the remaining registrations to reach the advance degree exemption.  Currently, the 20,000 spots reserved for advanced degrees are selected first, and any applicants with advanced degrees who are not chosen in that round are passed into the general pool to compete for the 65,000 available spots. The proposed change would reverse the order, likely increasing the number of beneficiaries with a master’s degree or higher degrees.

The 30-day comment period for the proposed rule ends on January 2, 2019.

Trump to Nominate William Barr to Serve as U.S. Attorney General

President Trump announced on December 7 that he would nominate William Barr, who served as attorney general under President George H.W. Bush from 1991 to 1993, to return to the top position at the Justice Department. Barr would replace acting attorney general Matthew Whitaker, who temporarily replaced former Attorney General Jeff Sessions when he resigned on November 7.

Prior to the announcement, Barr co-authored an op-ed by three former Republican attorneys general praising Sessions’ tenure as attorney general, calling it “outstanding.” The op-ed notes that Sessions increased prosecutions of immigrants who re-entered the U.S. without documentation by 38 percent, calling such numbers “impressive.”


Appeals Court Blocks Law Barring “Encourage or Induce” Statements

On December 4, the Ninth Circuit Court of Appeals blocked a portion of federal law that makes it a felony to “encourage or induce” an immigrant to enter or live in the U.S. if they would be doing so without documentation. The three-judge panel ruled that the provision violates the First Amendment because it restricts speech that is constitutionally protected. Judge A. Wallace Tashima, writing for the panel, noted that the provision appeared to apply even to statements amounting to “pure advocacy” and that “criminalizing expression like this threatens almost anyone willing to weigh in on the debate.” The ruling does not affect language in the same statue that makes it a crime to knowingly harbor or shield undocumented immigrants.

A Justice Department spokesperson said the Department stands behind the law and is considering next steps.

Federal Judge Rules that Trump Administration Cannot Withhold Law Enforcement Funding Over Immigration

A federal judge in New York ruled on November 30 that the Trump administration cannot withhold federal law enforcement grants from so-called sanctuary jurisdictions. U.S. District Judge Edgardo Ramos ruled that the Trump administration is not allowed to cut off grants to jurisdictions that do not help carry out federal immigration enforcement responsibilities beyond those already required under federal law. Judge Ramos noted that the Justice Department’s efforts to withhold “congressionally authorized funding to which the states are otherwise entitled” were in violation of the separation of powers, because Congress holds the power of the purse. The court ordered the Justice Department to provide the plaintiffs – New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, Virginia and New York City – with the funds without having to comply with the Department’s immigration conditions. Collectively, the jurisdictions could receive more than $25 million.

President Trump’s January 2017 executive order on interior immigration enforcement aims to prevent so-called sanctuary cities from receiving Edward Byrne Memorial Justice Assistance Grants (Byrne JAG funds) for law enforcement. Several federal courts have held that the DOJ’s efforts to withhold federal funding from these jurisdictions violates federal law.


Congressional Research Service (CRS): The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, November 6, 2018

This report provides an overview of the use of the Armed Forces to implement domestic law and of the Posse Comitatus Act, including constitutional considerations raised by the act.


Comments on the DHS Public Charge Rule

Those wishing to make public comments on the Department of Homeland Security’s (DHS) proposed regulations that would redefine the meaning of the legal term “public charge” may do so through the National Immigration Forum’s Legislative Action Center on or before December 10, 2018. The proposed regulations would redefine “public charge” to reject immigrants applying for an immigrant visa (green card) or a temporary visa if they have previously accessed or are deemed likely to rely on certain forms of public assistance in the future.

Dreamer Advocacy Resources

This webpage includes resources to help advocate for a permanent solution for Dreamers, including talking points, data on the economic benefits of Dreamers, and summaries of key legislation pending in Congress.

Responsibility for Unaccompanied Minors Act: Bill Summary

This is a summary of Senator Rob Portman’s (R-Ohio) Responsibility for Unaccompanied Minors Act (S. 3473), a bipartisan bill that would make the Office of Refugee Resettlement (ORR) responsible for continuing to oversee the care of unaccompanied migrant children after their placement with a sponsoring family.

* * *

*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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