Legislative Bulletin — Friday, February 5, 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

H.R. 506

The Immigration Detainer Enforcement Act

The bill would authorize state and local law enforcement officials to hold noncitizens for up to 48 hours upon issuance of a federal detainer from the Department of Homeland Security (DHS). The bill would also provide reimbursement to local law enforcement officials for certain detention, technology, and litigation-related costs associated with complying with federal detainers.

Sponsored by Representative Dan Bishop (R-North Carolina) (13 cosponsors — 13 Republicans, 0 Democrats)

01/28/2021 Introduced in the House by Representative Bishop

01/28/2021 Referred to the House Committee on the Judiciary

H.R. 529

The Protecting Sensitive Locations Act

The bill would prohibit immigration enforcement actions in a number of “sensitive locations,” including schools, hospitals, funeral homes, homeless shelters, places of worship, and court houses.

Sponsored by Representative Adriano Espaillat (D-New York) (4 cosponsors — 4 Democrats, 0 Republicans)

01/28/2021 Introduced in the House by Representative Espaillat

01/28/2021 Referred to the House Committee on the Judiciary

H.R. 531

The ICE and CBP Body Camera Accountability Act

The bill would require Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers to wear body cameras when on duty and on their shift. The bill requires footage from these cameras to be made available for administrative proceedings, civil actions, and criminal prosecutions.

Sponsored by Representative Adriano Espaillat (D-New York) (4 cosponsors — 4 Democrats, 0 Republicans)

01/28/2021 Introduced in the House by Representative Espaillat

01/28/2021 Referred to the House Committee on the Judiciary

H.R. 536

The New Deal for New Americans Act

This bill would create a National Office on New Americans to promote immigrant and refugee inclusion and integration, establish a $50 naturalization application fee, create federally funded programs for English-language learning and workforce development for immigrants and refugees, and set U.S. refugee admissions at a minimum of 110,000, among other provisions.

Sponsored by Representative Chuy Garcia (D-Illinois) (39 cosponsors — 39 Democrats, 0 Republicans)

01/28/2020 Introduced in the House by Representative Garcia

01/28/2020 Referred to the House Committee on the Judiciary

H.R. 709

The Border Crisis Prevention Act

The bill would increase the standard of proof for asylum seekers to pass credible fear interviews. The bill would also permit the Secretary of Homeland Security to remove asylum seekers to third countries without the need for a bilateral agreement. The bill would also authorize additional funding for bed space in ICE detention facilities and authorize 100 additional immigration judges. The bill also permits the extended detention of certain noncitizens and includes a number of additional asylum restrictions.

Sponsored by Representative Debbie Lesko (R-Arizona) (0 cosponsors)

02/02/2021 Introduced in the House by Representative Lesko

02/02/2021 Referred to the House Committee on the Judiciary

S. 80

Sarah’s Law

The bill would require the federal government to take custody of anyone present in the U.S. without authorization who is charged with a crime resulting in the death or serious bodily injury of another person.

Sponsored by Senator Joni Ernst (R-Iowa) (21 cosponsors — 21 Republicans, 0 Democrats)

01/28/2021 Introduced in the Senate by Senator Ernst

01/28/2021 Referred to the Senate Committee on the Judiciary

S. Con. Res. 5

A concurrent resolution setting forth the congressional budget for the United States Government for fiscal year 2021 and setting forth the appropriate budgetary levels for fiscal years 2022 through 2030.

The concurrent resolution provides the framework for the passage of a $1.9 trillion Covid-19 relief package. Concerning immigration, some U.S. citizens in mixed-status families are likely to be eligible for the $1,400 stimulus checks included in the proposed relief measures.

Sponsored by Senator Sanders (D-Vermont) (0 cosponsors)

02/02/2021 Introduced by Senator Sanders

02/03/2021 Considered by the Senate

02/04/2021 889 Senate Amendments filed, including the following immigration-related amendments:

S. Amd. 6, sponsored by Senator Roger Marshall (R-Kansas), on creating a deficit-neutral reserve fund relating to border security and the removal of dangerous criminal aliens.

S. Amdt. 19, sponsored by Senator Roger Marshall (R-Kansas), on creating a deficit-neutral reserve fund relating to deterring unauthorized immigration from El Salvador, Guatemala, and Honduras.

S. Amd. 33, sponsored by Senator Bill Haggerty (R-Tennessee), on creating a deficit-neutral reserve fund relating to supporting immigration policies designed to support American citizens, not displace American workers.

S. Amdt 34, sponsored by Senator Bill Haggerty (R-Tennessee), on creating a deficit-neutral reserve fund relating to supporting ICE officers in combating drug and human trafficking and smuggling.

S. Amdt. 37, sponsored by Senator Bill Haggerty (R-Tennessee), on creating a deficit neutral reserve fund relating to the southern border wall.

S. Amdt. 54, sponsored by Senators Todd Young (R-Indiana) and Tom Cotton (R-Arkansas), on creating a deficit-neutral reserve fund relating to prevention legislation that would allow illegal immigrants to receive Economic Impact Payments or any other direct, tax-based temporary financial assistance. (Passed by a vote of 58-42).

S. Amdt. 174, sponsored by Senator Thom Tillis (R-North Carolina), on a point of order against legislation funding economic development grants for sanctuary jurisdictions.

S. Amdt. 273, sponsored by Senator Tommy Tuberville (R-Alabama), on creating a deficit neutral reserve fund relating to recognizing the jurisdiction of ICE officers within sanctuary jurisdictions.

S. Amdt. 323, sponsored by Senator John Cornyn (R-Texas), on creating a deficit-neutral reserve fund relating to prosecution of sex offenders who enter the United States unlawfully.

S. Amdt. 380, sponsored by Senator Rick Scott (R-Florida), on creating a deficit-neutral reserve fund for policies relating to the enforcement of immigration laws.

S. Amdt. 399, sponsored by Senator Rick Scott (R-Florida), on creating a deficit-neutral reserve fund relating to denying admission to members of the Chinese Communist Party or People’s Liberation Army under the EB-5 visa program.

S. Amdt. 543, sponsored by Senator Ron Johnson (R-Wisconsin), on a point of order against eliminating current programs that aid immigration enforcement.

S. Amdt.544, sponsored by Senator Ron Johnson (R-Wisconsin), on creating a deficit-neutral reserve fund relating to preserving current asylum law.

S. Amdt. 888, sponsored by Senator Chuck Schumer (D-New York), on rescinding three previous amendments, including Senator Young’s amendment that sought to prevent unauthorized immigrants from receiving any form of direct stimulus relief payments. (Passed by a vote of 51-50).

02/05/2021 Passed the Senate by a vote of 51-50.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of Monday, February 8, 2021.

UPCOMING HEARINGS AND MARKUPS

Nomination of Marty Walsh to serve as Secretary of Labor

Date: Thursday, February 11, 2021 at 10:00 a.m. (Senate Health, Education, Labor and Pensions Committee)

Location: 430 Dirksen Senate Office Building (and streamed via HELP Committee Website)

Witnesses: Martin J. Walsh, former mayor of Boston and Representative from Massachusetts

THEMES IN WASHINGTON THIS WEEK

Federal

President Biden Releases Additional Actions on Immigration

On February 2 and February 4, President Biden signed four new immigration-related executive orders impacting border and asylum policy, legal immigration, family reunification and refugee resettlement. The orders combine substantive changes with directions to agencies to review and determine whether to terminate restrictive Trump administration policies.

The February 2 executive order on regional migration and border processing immediately revoked a number of Trump administration asylum policies, including those that created a radically accelerated asylum review process and restricted asylum seekers’ access to legal counsel. The order also called for agencies to review the Migrant Protection Protocols (MPP), which kept migrants stranded in Mexico while their asylum cases continued in the U.S., as well as the use of controversial Centers for Disease Control and Prevention (CDC) guidelines that require the rapid expulsion of almost all newly arriving unauthorized border crossers. The order also called for plans to address the root causes of migration and create new regional migration pathways.

Two other orders on February 2 established a task force to reunite families that were separated under the Trump administration and called for the review of a number of Trump administration legal immigration policies, including the public charge rule that allows officials to deny admission, visa renewals, or permanent residency to certain noncitizens based on their use of certain public benefits. The task force will be led by the Secretary of Homeland Security Alejandro Mayorkas, and it will look into the possibility of offering legal status to those affected by family separation.

An executive order on refugee resettlement, released on February 4, made a number of changes designed to improve the efficacy of the U.S. Refugee Admissions Program and review the Special Immigrant Visa program for those who have assisted the U.S. military overseas. The action also revoked a Trump administration order calling for “enhanced vetting” of the refugee system as well as an order that allowed states and localities to vote against resettling refugees. Biden announced that his goal is to raise the refugee resettlement ceiling to 125,000 by fiscal year (FY) 2022, and noted that he planned to raise the current ceiling up from the historic low of 15,000 set by the Trump administration.

The orders come in addition to other immigration-related actions Biden took on his first day in office.

Budget Reconciliation Clears First Stage After Senate Republicans File Over 900 Amendments

On the morning of February 5, in a party line vote, the Senate passed a resolution setting the budget for fiscal year (FY) 2021. The resolution is the first step in the budget reconciliation process, which is likely to allow Democrats and the Biden administration to avoid a Senate filibuster and pass a $1.9 trillion coronavirus relief package, the details of which will be clarified in the House the week of February 8.

Concerning immigration, some U.S. citizen members of mixed status families are likely to be eligible for stimulus relief under the new coronavirus package. These include households where U.S. citizens or green card holders filed jointly with undocumented spouses, but not households with U.S. citizen children and parents who are undocumented.

The use of budget reconciliation allowed Republicans in the Senate to file almost 900 amendments and force 41 additional votes the night of February 4, a process nicknamed “vote-a-rama.” Several of the proposed amendments concerned immigration-related issues, with a number of Republican Senators filing a series of amendments in support of additional border and interior immigration enforcement and asylum restrictions. These amendments largely failed or were not brought up to a vote.

One immigration-related amendment that passed with some bipartisan support was introduced by Senators Todd Young (R-Indiana) and Tom Cotton (R-Arkansas) and was designed to prohibit unauthorized immigrants from receiving COVID-19 stimulus checks. Senator Young later clarified on the Senate floor that the amendment was not intended to prevent U.S. citizens filing in mixed-status families from accessing stimulus relief. A further amendment was later passed that repealed the Young-Cotton amendment entirely.

Bipartisan Dream Act Reintroduced in Senate 

On February 4, Senators Dick Durbin (D-Illinois) and Lindsey Graham (R-South Carolina) announced legislation that would provide millions of immigrants brought to the U.S. as children with permanent legal status, allowing them to continue living and working in the U.S. without fear of deportation. The Dream Act of 2021 would provide recipients of Deferred Action for Childhood Arrivals (DACA) and other Dreamers the opportunity to earn eventual citizenship. Dreamers would qualify if they came to the U.S. when they were 15 years of age or younger and resided in the U.S. for at least 5 years at the time the bill is enacted, and if they have been accepted to a U.S. college or serve in the military.

This year marks the 20th anniversary of the first introduction of the bill with bipartisan support, and the fourth time Senators Durbin and Graham have co-sponsored legislation that includes protections for Dreamers.

Separately, on February 2, a new Texas business coalition joined the calls for legislative action on behalf of Dreamers. The group, which has the support of Senator John Cornyn (R-Texas), includes the Texas Business Leadership Council, the Fort Worth Chamber of Commerce, and a number of other businesses and universities across the state. Senator Cornyn stated at a virtual news conference that “these young men and women deserve certainty to be able to plan their future,” further stating that “the only way to do that is through legislation.”

Mexico Stops Accepting Some Migrant Families Rapidly Deported by U.S.

According to a February 3 report, in certain circumstances the Mexican government has stopped agreeing to take in migrant families who have been summarily expelled by the Biden administration under CDC guidelines. The refusals, which are mostly taking place in the South Texas border region, have resulted in U.S. Customs and Border Protection (CBP) employing alternatives to detention (ATDs) and releasing many of the migrant families into the U.S. while their immigration court cases continue.

The change was not publicly disclosed or justified by the Mexican government, but it may be the result of a recent Mexican law that declares that migrant children and families can no longer be held in immigration detention. The border regions where Mexico is no longer accepting expelled migrant families are also those where migrant family shelters on the Mexican side of the border are filled up and unable to take additional migrants.

The U.S. has expelled approximately 390,000 migrants, including thousands of families and unaccompanied children, back to Mexico since the rule was initially implemented by the Trump administration in March 2020. The expulsions occurred without allowing migrants to request humanitarian protection or be screened for signs of human trafficking. The rule currently remains in effect, although a recent executive order from President Biden directed various federal agencies to review whether to terminate the guidelines.

According to a February 3 Associated Press report, 19 individuals were murdered in Northern Mexico just miles from the U.S.-Mexico border. The remains identified included 13 Guatemalan migrants hoping to seek asylum in the U.S. The incident is the latest in a long history of violence against migrants in northern Mexico.

Trump DHS Official Attempted to Grant ICE Union Control over U.S. Immigration Policy in Unconventional Labor Agreement

According to a whistleblower complaint filed February 1, senior Department of Homeland Security (DHS) official Ken Cuccinelli signed a labor agreement in the final days of the Trump administration that attempts to grant the union representing Immigration and Customs Enforcement (ICE) workers significant say over U.S. immigration enforcement policy. The contract would require DHS leaders to obtain “prior affirmative consent” in writing from the union before enacting any policy changes that could affect the duties of ICE agents. This would allow the union to reject changes in enforcement priorities, such as President Biden’s recent directive to prioritize unauthorized immigrants who have been convicted of violent crimes over those with no criminal record.

The agreement also attempts to grant ICE workers the right to spend substantially more “official time” on union activities than union workers in other agencies, according to the whistleblower complaint. It also requires the government to pay for union-related travel expenses, going against a Trump administration policy prohibiting such terms in union contracts.

Under federal law, agency heads have the authority to revoke such agreements within 30 days from the date they are executed. If the new secretary of DHS were to fail to do so, the agreement could block the government from challenging any aspects of the contract for the next eight years. Under the agreement signed by Cuccinelli, who served in a series of non-Senate confirmed acting positions in his tenure at DHS, the ICE union could appeal any such revocation to the Federal Labor Relations Authority. On February 3, DHS terminated separate, similar agreements with states and localities that were also attempts by Cuccinelli to hamstring Biden administration immigration priorities.

Legal experts expressed doubts over the propriety and legality of the last-minute agreements.

DHS Encourages Vaccination Regardless of Immigration Status 

On February 1, DHS announced that it will not conduct routine immigration enforcement at vaccination sites to encourage everyone, regardless of immigration status, to receive the COVID-19 vaccine. In a statement, the agency said, “it is a moral and public health imperative to ensure that all individuals residing in the United States have access to the vaccine.” Vaccination sites will be considered “sensitive locations” and therefore off-limits to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection enforcement operations except under “the most extraordinary of circumstances.”

DHS Delays H-1B Regulation Eliminating H-1B Visa Lottery

On February 4, the Department of Homeland Security (DHS) said that it would be delaying the implementation of a recent regulation restricting the H-1B nonimmigrant visa program for high-skilled “specialty occupations.” The Trump administration rule, which was finalized in January and previously set to go into effect in March, would have ended the H-1B visa lottery, which is used each year to whittle over 200,000 applicants down to just 85,000 accepted. The rule would have replaced the lottery with a ranking system for H-1B petitions based on salary-level, starting with the highest and working down. The rule has been delayed until at least December 31, 2021.

DHS said it would not have time to implement the rule before the annual H-1B registration period beginning in March. The agency has also re-opened the rule to public comment and is likely to make additional changes to the rule — or rescind it entirely — before it goes into effect next year.

Legal

Supreme Court Calls Off Oral Arguments on Trump Immigration Cases

On February 3, the Supreme Court called off upcoming oral arguments on two key immigration-related cases from the Trump administration. The first,  Trump v. Sierra Club, focuses on the Trump administration’s diversion of military funds to pay for a wall along the southern U.S. border. The second, Wolf v. Innovation Law Lab, pertains to the Migrant Protection Protocols (MPP)—commonly referred to as the Remain in Mexico policy—which require asylum seekers at the southern border to remain in Mexico while their claims are processed.

President Biden has already reconsidered both policies in question through executive orders. On January 20, he ended the state of emergency on the southern border that had previously been used to justify the diversion of military funds toward border wall construction. He also suspended new enrollments in MPP and the administration is currently evaluating whether to end the program entirely. On February 1, the Biden administration asked the Court to cancel those arguments, given the federal government’s new posture.

Appeals Court Allows Expulsions of Unaccompanied Children

On January 29, a federal appeals court reversed a decision blocking the U.S. from summarily expelling unaccompanied children without first allowing them to request humanitarian protection or properly screening them for signs of human trafficking. The ruling allowed the Biden administration to resume the expulsions of these children, which was initially authorized under a pandemic-era CDC rule issued during the Trump administration.

However, on February 3, the Biden administration announced that despite the ruling, it would not use the authority to expel unaccompanied children. A White House spokesperson said, “the Border Patrol will continue to transfer unaccompanied children to the HHS Office of Refugee Resettlement so they may be properly cared for.”

Also on February 3, the Department of Health and Human Services (HHS) said in a statement that it would be opening an overflow facility for unaccompanied migrant children in Carrizo Springs, Texas. The facility will be used for children 13 years and older who have been cleared from quarantine procedures. The Department of Homeland Security is also planning expansions of its processing capacity for any potential influx in other unauthorized border crossers.

Nominations/Personnel

Senate Confirms Mayorkas as Homeland Security Secretary

On February 2, the Senate confirmed Alejandro Mayorkas as the Department of Homeland Security (DHS) Secretary in a 56-43 vote. Following the January 28 vote to move forward with the confirmation process, Mayorkas once again received support from Republican Senators Susan Collins (R-Maine), Mitt Romney (R-Utah), Shelley Moore Capito (R-West Virginia), Lisa Murkowski (R-Alaska), Dan Sullivan (R-Alaska), and Rob Portman (R-Ohio).

This confirmation occurred despite Republican attempts to stall his nomination at various stages in the process from Senators Josh Hawley (R-Missouri), John Cornyn (R-Texas), and minority leader Mitch McConnell (R-Kentucky).

Mayorkas is the first Latino and first immigrant to lead DHS. He is also the first Senate-confirmed DHS secretary since April 2019. Leading the 240,000-person department, Mayorkas will be tasked with implementing Biden’s immigration agenda, including undoing many Trump-era immigration policies.

GOVERNMENT REPORTS

Office of the Inspector General (OIG): DHS Has Not Effectively Implemented the Prompt Asylum Pilot Programs; January 25, 2021.

In this report, the Department of Homeland Security (DHS) Office of Inspector General (OIG) evaluated and found that two DHS asylum pilot programs – Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) – were ineffectively implemented. The two programs were introduced in October 2019 to process asylum claims more quickly in response to an increase in the number of migrants that had arrived at the southern border. The report found that multiple lapses placed migrants’ safety at risk or negatively impacted their chances of gaining asylum. For example, migrants were often held in detention longer than was standard; families were relocated and children were placed in holding cells with unrelated adults; staff resources were not sufficient to manage the programs effectively; and migrants’ access to legal resources were insufficient and did not prepare asylum applicants for interviews.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Mixed Status Families and Covid-19 Economic Relief

This fact sheet provides information and demographic details about mixed status families living in the U.S. It provides information on tax payments by families filing joint tax returns listing both U.S. citizens with Social Security Numbers and family members who have Individual Taxpayer Identification Numbers (ITINs). The fact sheet also explains why some undocumented spouses may be unable to obtain legal status, and how these families have been excluded from COVID-19 relief legislation.

Dream Act of 2019: Bill Summary

This is a summary of the Dream Act of 2019, which was reintroduced on February 4, 2021. The bill would provide Dreamers – young undocumented immigrants who were brought to the United States as children and have lived in the U.S. for most of their lives – with protection from deportation and an opportunity to obtain legal status if they meet certain requirements.

Room to Grow: Setting Immigration Levels in a Changing America

This National Immigration Forum paper proposes an evidenced-backed approach to setting overall immigration levels based on addressing demographic realities. The paper argues the country will need more immigrants in order to continue to thrive and beat back the looming ill effects of demographic decline.

* * *

*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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