Legislative Bulletin — Friday, January 29, 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

S. 17

The Ban Birth Tourism Act

The bill would prohibit the issuance of temporary nonimmigrant visas to noncitizens who have been determined to be seeking admission for the primary purpose of obtaining U.S. citizenship for a child by giving birth to the child in the United States.

Sponsored by Senator Marsha Blackburn (R-Tennessee)

1/22/2021 Introduced in the Senate by Senator Blackburn

1/22/2021 Referred to the Senate Committee on the Judiciary

S. 50

The Venezuela TPS Act

The bill would allow Venezuelan nationals to become eligible for Temporary Protected Status (TPS) in the United States. TPS allows those who are unable to return to their home countries safely to live and work in the U.S. for temporary periods.

Sponsored by Senator Robert Menendez (D-New Jersey) (4 cosponsors – 1 Republican, 3 Democrats)

01/26/2021 Introduced in the Senate by Senator Menendez

01/26/2021 Referred to the Senate Committee on the Judiciary

S. 60

The Immigration Detainer Enforcement Act

The bill would provide explicit authority to state and/or local law enforcement agencies to maintain individuals in custody in cases in which an immigration detainer has been issued and incentivize cooperation between federal immigration officials and state and/or local law enforcement through the reimbursement of certain detention, technology, and litigation-related costs.

Sponsored by Senator Thom Tillis (R-North Carolina) (7 cosponsors — 7 Republicans, 0 Democrats)

01/27/2021 Introduced in the Senate by Senator Tillis

01/27/2021 Referred to the Senate Committee on the Judiciary

H.R. 398

The No Asylum for Criminals Act

The bill would deny access to asylum for any individual who has been convicted of any crime, except political offenses committed outside of the U.S. as designated by the Secretary of Homeland Security.

Sponsored by Representative Bob Good (R-Virginia) (15 cosponsors — 15 Republicans)

01/21/2021 Introduced in the House by Representative Good

01/21/2021 Referred to the House Committee on the Judiciary

H.R. 413

The Security and Fairness Enhancement for America Act

The bill would eliminate the diversity visa program, which is designed to allow additional immigration opportunities to people from countries with relatively low rates of immigration to the U.S.

Sponsored by Representative Bill Posey (R-Florida) (0 cosponsors)

01/21/2021 Introduced in the House by Representative Posey

01/21/2021 Referred to the House Committee on the Judiciary

H.R. 416

To allow the Secretary of the Treasury to accept public donations to fund the construction of a border wall on the Southwest border.

Sponsored by Representative Bill Posey (R-Florida)

01/21/2021 Introduced in the House by Representative Posey

01/21/2021 Referred to the House Committees on Ways and Means and on the Judiciary

H.R. 453

The Help Ensure Legal Detainers (HELD) Act

The bill would deny federal funding to any state or political subdivision that has any law, policy, or procedure that prevents or impedes a State or local law enforcement official from maintaining custody of a noncitizen pursuant to an immigration detainer issued by the Department of Homeland Security (DHS).

Sponsored by Representative Ken Calvert (R-California) (1 cosponsor — 1 Republican)

H.R. 471

The Protecting Americans from Unnecessary Spread upon Entry (PAUSE) Act

The bill would prohibit the Department of Health and Human Services (HHS) or DHS from lessening the stringency of or ceasing the use of title 42 expulsions until the end of the Covid-19 pandemic. Under title 42, DHS has summarily expelled arriving unauthorized immigrants without first allowing them to request humanitarian protection.

Sponsored by Representative Yvette Herrell (R-New Mexico) (25 cosponsors — 25 Republicans)

01/25/2021 Introduced in the House by Representative Herrell

01/25/2021 Referred to the House Committee on Energy and Commerce

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, February 1, 2021.

The U.S. House of Representatives will be in session from Tuesday, February 2, 2021 to Friday, February 5, 2021.

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

Biden Administration Rescinds Zero Tolerance Policy at the Border and Plans Task Force to Reunite Families

The Department of Justice (DOJ) announced in a January 27 memo that it is ending the Trump-era “zero tolerance” policy to prosecute all undocumented immigrants crossing the border. The policy resulted in the separation of more than 3,000 migrant children from their parents in the summer of 2018 and was met with widespread criticism from Members of Congress, faith groups, and the general public. After the public outcry, the Trump administration largely ended the policy via an executive order in 2018, but the January 27 memo officially terminated the policy and called for a return to “individualized assessments in criminal cases.”

A January 14 report by the DOJ Office of Inspector General (OIG) found that prior to the policy’s implementation, DOJ leadership were aware “that prosecution of these family unit adults would result in children being separated from them,” but proceeded with the policy anyway, under strong pressure from then-attorney general Jeff Sessions.

The Biden administration has announced plans for the creation of a task force to help reunite the over 600 children who remain separated from their parents as a result of the zero-tolerance policy and a similar 2017 pilot program. The taskforce will be headed by incoming Secretary of Homeland Security Ali Mayorkas, and on January 27, first lady Jill Biden announced her Chief of Staff would also be involved in the effort to reunite the families who remain separated.

Many of the children who have been separated from their parents remain in the U.S., either in foster homes or with other family members, but the government has thus far been unable to locate over 300 of them.

Biden Administration, Immigration Advocates Open to Incremental Reform Approach

According to a January 26 report, the Biden administration has indicated that while it will continue to push for the passage of comprehensive immigration legislation, it is willing to shift focus to more incremental reforms if needed. On January 20, the administration announced a comprehensive package that included a pathway to legalization for 11 million undocumented people as well as a number of reforms to border policy, legal immigration, and the asylum system. Passage of the Biden bill is likely to be a significant challenge given the need to negotiate a bipartisan solution with skeptical Senate Republicans, and while the administration and leading Democrats have made clear they are open to compromise, an administration official has reportedly described the plans for immigration legislation as “not an all-or-nothing approach.”

Smaller bills that the administration and immigration advocates may support include a permanent legislative solution for undocumented individuals who came to the U.S. as children (Dreamers) and for temporary protective status (TPS) holders. According to a January 28 report, Senators Dick Durbin (D-Illinois) and Lindsey Graham (R-South Carolina) are planning on reprising their efforts to provide a path to permanent status for Dreamers by reintroducing the DREAM Act the week of February 1.

The Farm Workforce Modernization Act, which would reform the H-2A temporary agricultural worker program and provide a pathway to permanent status for undocumented farmworkers, may also be on the table as a smaller, more incremental piece of legislation.

More Immigration-Related Guidance Expected in February

The White House is expected to issue a series of immigration-related executive orders and guidance in February, according to a January 28 report. The actions, previously set to roll out on January 29 but delayed at least a few days, include the establishment of a task force focused on reuniting families separated under the Trump administration, an executive order in support of the refugee admissions program, and an action on border processing. The latter action would aim to reverse certain Trump administration asylum restrictions and to begin to address the root causes of migration through investment in Central America.

The sources involved in the discussions did not give a reason for the delay but noted it would be “by at least a few days.” Meanwhile, the administration awaits the Senate confirmations of Alejandro Mayorkas to lead the Department of Homeland Security and Xavier Becerra to lead the Department of Health and Human Services, both departments that would be involved in overseeing the enactment of the expected executive guidance.

ICE Releases Remaining Potential Victims of Alleged Medical Abuse at Georgia Detention Facility

According to a January 22 report, Immigration and Customs Enforcement (ICE) has released nine women who were involved in a medical abuse case at the Irwin County Detention Center in Georgia. The women were identified as potential victims following a September 14, 2020 whistleblower complaint that alleged that as many as 57 female detainees at the Irwin facility were subject to medical mistreatment, including a high rate of unwanted, invasive gynecological surgeries. According to numerous reports, the surgeries, including several hysterectomies, were performed “without full understanding or consent.”

Many of the women subject to the alleged abuse were subsequently deported by the Trump administration, but a November court order halted the further deportation of potential witnesses.

U.S. Customs and Border Protection Halts Construction of Southern Border Wall  

On January 25, U.S. Customs and Border Protection (CBP) officially notified its contractors to stop all border barrier construction projects along the U.S.-Mexico border by January 27. This follows President Biden’s January 20 executive order, which terminated the national emergency declared at the southern border by the Trump administration and directed the end of all border wall construction within seven days of the order. Although the CBP notification only applies to projects it directly oversees, the Department of Defense (DOD) and U.S. Army Corps of Engineers are expected to take similar steps to halt border wall construction projects.

According to the Trump administration, 452 miles of new barriers were built along the 2,000-mile southern border over the previous four years. Construction had continued despite an estimated $16.3 billion cost and ongoing legal challenges, including a case that is currently before the U.S. Supreme Court questioning the legality of diverting military funds for barrier construction.

In addition to halting all wall construction, Biden’s January 20 executive order also calls for DoD, DHS, and the Office of Management and Budget (OMB) to come up with a plan within 60 days to redirect all available funds that had previously been allocated for the construction of border barriers.

Biden Administration Extends Temporary Protected Status for Syrians

On January 29, Acting Secretary of Homeland Security David Pekokse extended and redesignated Temporary Protected Status (TPS) for Syrian immigrants living in the U.S. for 18 additional months. There are currently approximately 6,700 Syrians who may now register or re-register for protected status through September 2022. Prior to the extension, Syrian TPS was set to expire on March 31. Status was both extended and redesignated, meaning those who have recently arrived in the U.S. will be newly eligible for protection.

TPS is granted by the Secretary of DHS to eligible foreign-born individuals who are unable to return home safely due to violence or other circumstances in their home country.

Legal

Federal Judge Blocks Biden’s 100-Day Deportation Moratorium

On January 26, a federal judge in the Southern District of Texas granted Texas Attorney General Ken Paxton’s request for a temporary restraining order (T.R.O.) against the Biden administration’s 100-day deportation moratorium, thereby suspending it for at least 14 days. The decision blocks DHS from automatically pausing the removal of persons possessing executable final orders of removal. The judge argued that DHS “failed to provide any concrete, reasonable justification for a 100-day pause on deportations” and that Texas may “suffer imminent and irreparable harm” if the moratorium remained in place. The T.R.O. does not impact other sections of the January 20 DHS enforcement memorandum that included the moratorium, including DHS’s issuance of new interim interior enforcement priorities.

Paxton had claimed that the moratorium violated a deal signed by former DHS official Ken Cuccinelli with Texas and several other states and localities that would require the DHS to provide six months of notice and the opportunity to comment before implementing significant immigration policy changes. However, the judge specified that his decision was not based on the agreement between Texas and the former administration, but rather a requirement to preserve the “status quo” under federal law.

While the T.R.O. will be in effect nationwide for two weeks, its precise impact remains unclear as it does not require deportations to resume at the pace set by the previous administration.

The 100-day deportation moratorium was a noteworthy immigration priority for the Biden administration, premised on giving the administration time to consider changes to enforcement priorities and to look at each detainee’s case individually.

Nominations/Personnel

Mayorkas Expected to be Confirmed to Lead DHS on February 1 Following Bipartisan Cloture Vote

The Senate is expected to conduct a final floor vote to confirm Alejandro Mayorkas as DHS secretary on February 1, after opposition by some Senate Republicans, including calls to slow down the process. On January 26, the Senate Homeland Security and Government Affairs (HSGAC) committee approved Mayorkas, with Senators Rob Portman (R-Ohio) and Mitt Romney (R-Utah) joining committee democrats in voting for the process to move forward. On January 27, Senate Majority Leader Chuck Schumer filed cloture to advance Mayorkas’ nomination, and a cloture vote passed on January 28 by a vote of 55-42.

The vote followed an attempt by Senate Republicans, led by Senators Josh Hawley (R-Missouri) and John Cornyn (R-Texas), to delay the proceedings. Hawley had pushed to delay the HSGAC vote, and Cornyn led a letter to incoming Judiciary Committee Chairman Dick Durbin (D-Illinois) requesting an additional hearing for Mayorkas before the Senate Judiciary Committee.

In the January 28 vote, Senators Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and Shelley Moore Capito (R-West Virginia) joined Romney and Portman as Republicans who voted to move forward with the confirmation process, setting up the final confirmation vote on the Senate floor on February 1. Senate Democrats and former DHS leaders have urged that Mayorkas be confirmed promptly.

Senate Confirms Blinken as Secretary of State  

On January 26, President Joe Biden’s nominee to serve as Secretary of State, Antony Blinken, was confirmed by the Senate in a 78-22 vote with strong bipartisan support.

Blinken, who served as the Deputy Secretary of State from 2015 to 2017, expressed the importance American leadership in foreign policy and pledged to reengage U.S. allies on national security threats and rebuild global alliances during his Senate confirmation hearing. Citing his own family’s history of forced migration, he has been a strong advocate for increased refugee resettlement and will play a key role in following through on President Biden’s vow to restore the annual refugee admissions cap to 125,000 from its historic low of 15,000 set by the Trump administration for fiscal year 2021. Blinken said he will also look to make financial investments in Guatemala, Honduras, and El Salvador to improve conditions within countries of origin and reduce the need for migration.

McHenry Steps Down as Director of Agency Overseeing Immigration Courts

On January 27, James McHenry resigned as director of the Executive Office of Immigration Review (EOIR), which manages the U.S. immigration court system. McHenry told EOIR staff in an email that he will transition to a role as a chief administrative hearing officer and will be succeeded by Jean King, a career official at the agency.

In his time at EOIR, McHenry took steps to speed cases through the court system and limit the discretion of immigration judges, instituting case quotas, restricting judges’ ability to issue grants of asylum, and requiring them to reopen previously closed cases. These changes prompted a number of retirements and resignations. One former judge, who resigned in 2018, said that “the timing of my retirement was a direct result of the draconian policies of the Administration.”

GOVERNMENT REPORTS

Government Accountability Office (GAO): SOUTHWEST BORDER: DHS and DOJ Have Implemented Expedited Credible Fear Screening Pilot Programs, but Should Ensure Timely Data Entry; January 25, 2021.

In this report, the Government Accountability Office (GAO) reviewed the expedited fear screening pilot programs implemented along the southern border from October 2019 to March 2020. These programs were meant to speed up screenings along the border, and the Department of Homeland Security (DHS) aimed to complete individuals’ screenings within 5-7 days of apprehension. Individuals were to be kept in the custody of U.S. Customs and Border Protection (CBP) while awaiting their screenings. However, GAO found that about 86% of individuals were kept in CBP custody for up to 20 days, much longer than the 5-7 days intended by the program. Additionally, GAO found that DHS and the Executive Office for Immigration Review (EOIR) could not account for the status of about 630 individuals in the expedited fear screening program. Officials did not know whether DHS agents had filed the notices, or whether EOIR had received, but not entered, the data.

Congressional Research Service (CRS): Reinstatement of Removal: An Introduction; January 22, 2021

This report serves as an overview of the reinstatement of removal process. Non-citizens are ordered to be removed if they do not meet the requirements for entering or continuing to reside in the United States. The reinstatement of removal process is for those foreign nationals who have reentered the country unlawfully after being removed at least once.

Congressional Research Service (CRS): Expedited Removal of Aliens: An Introduction; updated January 21, 2021

This updated report provides an overview of the expedited removal of noncitizens. Foreign nationals who are residing within or have entered the United States unlawfully are subject to formal removal proceedings. However, under expedited removal processes, certain noncitizens may be deported in as little as a single day without an immigration court hearing or other appearance before a judge. Trump administration guidance expanded the categories of noncitizens subject to expedited removal procedures.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Family Separation at the U.S.-Mexico Border

This fact sheet provides an updated overview of the issue of family separation at the Southwest border, including information on the Department of Justice’s (DOJ) former “zero-tolerance policy” to prosecute all individuals crossing the U.S. border between ports of entry without authorization.

Fact Sheet: Immigration Detention in the United States

This updated resource provides details about the U.S. immigration detention system. It describes detention by Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Office of Refugee Resettlement (ORR), and answers a number of frequently asked questions about the detention system.

Biden Administration’s January 20 Executive Actions on Immigration

This explainer summarizes several of the Biden administration’s “day one” executive actions impacting immigrants. The explainer provides summaries of nine separate immigration-related memoranda, proclamations, and executive orders.

* * *

*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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