Legislative Bulletin — Friday, January 15, 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 January 11, 2021.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session on Tuesday, January 19, 2021 and from Thursday, January 21, 2021 to Friday, January 22, 2021.

The U.S. House of Representatives will be in session from Thursday, January 21, 2021 to Friday, January 22, 2021.

UPCOMING HEARINGS AND MARKUPS

Hearings to Examine the Expected Nomination of Alejandro N. Mayorkas, to be Secretary of Homeland Security

Date: Tuesday, January 19, 2021 at 10:00 a.m. (Senate Homeland Security and Government Affairs Committee)

Location: 342 Dirksen Senate Office Building and WebEx

THEMES IN WASHINGTON THIS WEEK

Biden Transition Team Plans First-Day Immigration Legislation

According to multiple reports, President-Elect Joe Biden is planning to introduce an immigration bill “immediately” upon taking office on January 20. The substance of the legislation has not yet been made public, but Vice President-Elect Kamala Harris provided a broad summary of the transition team’s planned legislation in a January 12 interview with Univision.

In the interview, Harris said the bill would provide green cards to Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) recipients, and it would provide an 8-year pathway to permanent status for other undocumented individuals. Harris also said the bill would include provisions for additional immigration judges and legal representation for children attempting to navigate the immigration court system. She also noted that the new administration will ensure that all immigrants, regardless of status, will have access to the Covid-19 vaccine.

Vice President-Elect Harris called the planned legislation “a smarter and a more humane way of approaching immigration.” In addition to the bill, the Biden team is also likely to focus on reversing many of the Trump administration’s immigration restrictions.

OIG Report: Justice Department Ignored Warnings While Pushing 2018 Zero Tolerance Policy

According to January 14 report, DOJ’s Office of Inspector General (OIG) concluded that DOJ leadership and the attorney general’s office were aware that its 2018 “zero-tolerance” policy would result in widespread family separation. Following an investigation, OIG concluded that DOJ, led at the time by former attorney general Jeff Sessions, was a “driving force” behind the strategy that required criminal prosecution of all adults who crossed the U.S. border without authorization. OIG found that despite knowledge that this would result in the separation of thousands of children from their parents, DOJ’s “single-minded focus on increasing immigrant prosecutions” led it to implement the policy.

The zero tolerance policy, which was met with widespread criticism from Members of Congress, faith groups, and the general public, resulted in the separation of more than 3,000 children from their parents in 2018. In many cases, the Trump administration has struggled to reunite these families after failing to adequately track which families were separated and where children were placed.

The finding of the OIG report contradicts statements made at the time by leading administration officials. Sessions said on June 21, 2018 that he “never really intended” to separate children. Former DHS Secretary Kirstjen Nielsen claimed, “there was no policy to separate families.”

DHS Head Wolf Abruptly Resigns as Replacement Acts to Shore Up Immigration Restrictions

On January 11, Chad Wolf abruptly resigned as the acting DHS secretary. The decision came just days after the violent January 6 attack at the U.S. Capitol, and after President Trump withdrew Wolf’s nomination to lead DHS on January 7. Wolf was replaced by Federal Emergency Management Agency (FEMA) administrator Pete Gaynor, who will serve as acting DHS secretary for the remainder of Trump’s term. Wolf will return to his previous role as DHS undersecretary for strategy, policy, and plans.

Wolf’s resignation letter cited ongoing legal challenges arguing that he has been improperly appointed to lead DHS. Thus far, these challenges have resulted in five federal courts striking down multiple DHS actions and memorandums that were issued under Wolf’s leadership, including a July 28 memorandum limiting DACA.

On January 12, Gaynor, who is now the sixth official to lead DHS during President Trump’s four-year term, issued a memorandum attempting to shore up immigration restrictions issued during Wolf’s tenure. The memo delegates authority to Wolf in his undersecretary role to sign and ratify agency regulations. Under this authority, Wolf issued a January 13 memo ratifying “any and all prior regulatory actions” that took place during his term, as well as a series of other immigration restrictions that were issued under his predecessor, Kevin McAleenan, whose appointment was also in question. It is not yet clear how the January 13 memo will impact ongoing litigation related to the regulations and agency actions in question.

In addition to Wolf’s resignation, Immigration and Customs Enforcement (ICE) acting director Jonathan Fahey announced on January 13 that he would also be stepping down from his role after less than one month in the position. Fahey’s predecessor as acting director, Tony Pham, stepped down at the end of 2020 after serving in the role for roughly five months.

Trump Administration Rushes to Enact Slew of Asylum Restrictions

The Trump administration is rushing to enact a series of asylum restrictions in its final days, including five separate regulations that were set to go into effect between January 11 and January 22.

One of the rules — sweeping regulations that would have dramatically restricted all access to asylum, was blocked by a federal court in San Francisco on January 8, three days before it was slated to go into effect. That rule included broad limitations that would impact nearly everyone seeking protection from the U.S. government. Among other changes, it would curtail the opportunities asylum seekers have to make their case before an immigration judge, deny asylum if migrants did not first seek asylum in a country they passed through on the way to the U.S., raise the threshold of proof at several stages in the asylum process, and disqualify certain types of persecution, including those based on sexual orientation or torture by a “rogue government official,” that previously constituted grounds for receiving protection.

The remaining restrictions remain on track to be implemented, including two Department of Justice (DOJ) rules taking effect on January 15 that would create significantly shortened deadlines for certain types of asylum proceedings, enact additional punishments for minor, technical errors present in asylum applications, and provide additional discretion to DOJ leadership to decide and/or close asylum cases. A fourth regulation, set for January 19, is a rehash of the “third country transit ban” that aims to prevent asylum seekers from applying for protection in the U.S. if they had not first sought protection in countries they had traveled through while fleeing persecution. The last rule, set for January 22, would make asylum seekers ineligible for protection if they exhibit any symptoms of a contagious disease, such as Covid-19, or if they have traveled from or through a country where a contagious disease is present.

Advocates have said that if implemented, the set of rules “will have a devastating effect on asylum seekers and lead the United States to turn away people seeking refuge back to the very countries they have fled.” The Biden transition team plans to roll back many of the Trump administration’s asylum restrictions, although regulations that have already been enacted will likely take time to reverse.

According to a January 7 Buzzfeed News report, the regulations are not the only ways the administration is attempting to restrict asylum in its final days. A December 31 policy directive from former acting ICE director Tony Pham reportedly advises ICE officers to reclassify unaccompanied migrant children as accompanied whenever possible. The change makes it harder for children to navigate the immigration court system, placing more of them in adversarial immigration court settings.

Department of Labor Issues Revised H-1B Wage Rule

On January 14, the Department of Labor (DOL) reissued a rule that aims to raise minimum wage requirements for the H-1B nonimmigrant visa program for high-skilled “specialty occupation” workers. The rule makes some changes to the original October 8, 2020 rule, which was struck down by three separate federal courts on the grounds that DOL did not have “good cause” to bypass required notice and comment procedures when it attempted to expedite implementation and issue the regulation as an interim final rule.

The new DOL wage rule applies a similar formula as the earlier version for raising minimum wage requirements, but the required increase would not be as steep for most employers. In addition, while the initial rule was slated to go into effect immediately when it was issued, this rule will not take effect for 60 days and includes an extended phase-in period for the increased wage requirements.

In addition to reissuing the DOL wage rule, on January 8 DHS finalized a rule that would eliminate the H-1B lottery. Under the rule, U.S. Citizenship and Immigration Services (USCIS) would be required to institute a ranking system in its place under which petitions would be selected based on salary-level, with the highest salaries getting the highest priority.

The DHS H-1B rule is set to go into effect on March 9, meaning both it and the reissued DOL rule will be under the purview of the incoming Biden administration. The Biden administration plans to issue a “delay memorandum” while it considers further action, extending the effective date of all regulations that have been published but not yet gone into effect by 60 days.

Report: DHS Entered into Agreements Designed to Hamper Biden Team’s Efforts to Reverse Couse on Immigration Policies

According to a January 15 Buzzfeed News report, DHS has signed a number of legally-questionable agreements with states and localities that could delay future immigration policy changes for months. The agreements establish a six-month notice and comment period before a policy change can go into effect, during which the jurisdiction would be able to review the proposal and make suggestions. DHS titled the deals Sanctuary for Americans First Enactment (SAFE) agreements.

According to the report, Ken Cuccinelli, the senior official performing the duties of DHS deputy secretary, signed SAFE agreements with Arizona, Indiana and Louisiana, as well as the Rockingham County Sheriff’s Office in North Carolina. The agreements state that the jurisdictions will be entitled to “injunctive relief” if DHS does not comply, and further notes that the agreements can only be terminated with 180 days written notice.

According to an immigration law professor at Santa Clara University School of Law, the agreements are “completely unmoored from legal, constitutional ways of implementing policy,” and appear to be designed to allow jurisdictions to sue the incoming Biden administration over any immigration policy changes that may be introduced. Under well-established legal precedent, the federal government possesses “broad, undoubted power over the subject of immigration.”

Census Bureau Halts Undocumented Immigrant Count, Ending Trump’s Bid to Exclude Undocumented Immigrants from Congressional Apportionment

On January 12, the Census Bureau stopped work on President Trump’s directive to produce a state-by-state count of undocumented immigrants. The bureau’s move effectively ends the administration’s attempt to use census data to exclude undocumented immigrants from Electoral College votes and congressional apportionment, a count which determines the number of seats in the House of Representatives for each state and would negatively impact states with growing immigrant populations – blue states as well as red states.

In July 2020, Trump had issued a memorandum directing the Census Bureau to calculate and exclude undocumented immigrants from the 2020 census apportionment count. Several federal courts ruled the memorandum was unlawful, noting the U.S. Constitution requires all persons, regardless of immigration status, to be included in the reapportionment count. The U.S. Supreme Court declined to rule on the memorandum’s legality, determining the case was premature. Previously, in June 2019, The Supreme Court blocked the Trump administration from including a citizenship question on the Census.

The news that the Census Bureau would no longer work on the directive came after an internal bureau watchdog disclosed that Trump-appointed Census Bureau Director Steven Dillingham had placed “significant pressure” on bureau employees to produce a count of undocumented immigrants by January 15, a move which Inspector General Peggy Gustafson called “statistically indefensible.”

On January 11, a Department of Justice (DOJ) attorney informed a federal judge that the 2020 Census results will not be available until March 6, well after the change of administration. The incoming Biden administration has condemned President Trump’s efforts to exclude undocumented immigrants from the Census count, and it is unlikely that Biden will move to resume the tally after inauguration.

Trump Visits U.S.-Mexico Border and Touts Progress on Border Wall Construction During His Administration 

On January 12, President Trump visited Alamo, Texas, to tout his administration’s progress on the construction of barriers along the U.S.-Mexico border. According to the Trump administration, 452 miles of new barriers have been built along the 2,000-mile southern border.

The construction has continued despite ongoing legal challenges, including a case now before the U.S. Supreme Court questioning the legality of diverting military funds for barrier construction. Construction of the U.S.-Mexico border wall has cost an estimated $16.3 billion, approximately $10.5 billion of which has been diverted from Department of Defense accounts, including funds allocated for military pay and pensions and the construction of schools near U.S. army bases.

President Trump’s border speech was scheduled days after the violent insurrection at the U.S. Capitol on January 6 and was Trump’s last public appearance prior to the House voting to impeach him on January 13.

GOVERNMENT REPORTS

Department of Homeland Security (DHS) Office of Inspector General (OIG): Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services; January 14, 2020

The report describes the results of an investigation into the Department of Justice’s (DOJ) zero-tolerance border policy that resulted in the separation of over 3,000 migrant children from their parents in 2018. The report describes the extensive involvement of DOJ leadership, including then-attorney general Jeff Sessions, as well as their knowledge of the potential consequences of the policy before it was implemented. The report relied on 45 interviews with government officials, as well as emails and other documents.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Immigration Priorities for a Biden Administration

This document lists the National Immigration Forum’s immigration reform priorities for the first 100 days of a Biden presidency. The priorities all have strong bipartisan support and are based in the understanding that America needs an immigration system that advances the interests of all Americans.

Rescinding the Travel Ban Will Improve National Security

This paper explores the harms of the travel and refugee bans enacted by the Trump administration and makes the case for why removing them will be a boon for national security efforts. Elizabeth Neumann, former DHS Assistant Secretary for Counterterrorism and Threat Prevention during the Trump Administration and senior advisor to the National Immigration Forum on national security matters, authored the paper.

Explainer: The Trump Administration’s New Rules Restricting H-1B Workers

This resource provides information about three recent Trump administration rules impacting the H-1B nonimmigrant visa program for “specialty occupations.” The explainer describes the provisions and possible impacts of the rules as well as the current state of play.

* * *

*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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