Legislative Bulletin – Friday, January 31, 2020

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. 3240

Trafficking Survivors Relief Act of 2020

The bill would amend the federal criminal code to establish a process to vacate convictions for criminal offenses committed by certain trafficking victims. Convictions and arrests would only be vacated under the bill in circumstances where the offenses were committed as a direct result of having been a trafficking victim.

Sponsored by Senator Kirsten Gillibrand (D-New York) (1 cosponsor – 0 Democrats, 1 Republican)                                                                       

1/28/2020 Introduced in the Senate by Senator Gillibrand

1/28/2020 Referred to the Senate Committee on the Judiciary

H.R. 5708

The Empowering Immigration Courts Act

The bill would give immigration judges the authority to impose criminal fines on anyone in contempt of their court. Existing law already allows for the Attorney General to regulate criminal fines related to contempt, but no regulations have been put in place thus far.

Sponsored by Representative Mike Gallagher (R-Wisconsin) (0 cosponsors)

1/29/2020 Introduced in the House by Representative Gallagher

1/29/2020 Referred to the House Committee on the Judiciary

H.R. 5734

Neighbors Not Enemies Act

The bill would repeal the Alien Enemies Act of 1798, which allows the U.S. president to determine how and if all foreign nationals from a specific country should be apprehended, restrained, secured and removed. The act was used during the detainment and deportation of Japanese and German immigrants during World War II.

Sponsored by Representative Ilhan Omar (D-Minnesota) (0 cosponsors)

1/30/2020 Introduced in the House by Representative Omar

1/30/2020 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate is expected to be in session on the week of Monday, February 3, 2020.

The U.S. House of Representatives will be in session from Tuesday, February 4, 2020 through Friday, February 7, 2020.

UPCOMING HEARINGS AND MARKUPS

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

THEMES IN WASHINGTON THIS WEEK

Federal

Trump Administration Expands Travel Ban to Six Additional Countries

On January 31, the Trump administration announced an expansion of the travel ban to six additional countries. The new restrictions, plans of which had initially been reported on January 11, would ban immigration from Nigeria, Eritrea, Myanmar and Kyrgyzstan. Temporary visits for business or tourism reasons would still be permitted from those countries. The administration is further preventing two other countries, Tanzania and Sudan, from accessing the diversity visa lottery, which awards green cards to eligible immigrants from traditionally underrepresented countries. The Department of Homeland Security (DHS) justified the new restrictions by citing security concerns, specifically regarding the extent to which the banned countries shared information and cooperated with the U.S. The addition of the six countries represents the fourth iteration of the travel ban.

On January 27, days before the ban was expanded, Democrats in the House of Representatives announced plans to vote on a bill that would repeal the travel ban.  The bill would revoke any current bans and would require the administration to consult with Congress before enacting future similar restrictions.

On January 26, the U.S. Fourth Circuit Court of Appeals announced it will hear the first legal challenge to the ban in about two years. A 2018 Supreme Court decision to uphold the third iteration of the ban had to this point prevented further legal challenges, but the new litigation argues that the Supreme Court’s decision did not apply to all the merits of the constitutional claims.

DHS Expands Migrant Protection Protocols to Brazilian Migrants

On January 29, the Department of Homeland Security (DHS) announced it has begun processing Brazilian asylum seekers under the Migrant Protection Protocols (MPP). Under MPP, also known as the “Remain in Mexico” policy, asylum seekers apprehended along the U.S.-Mexico border are returned to wait in Mexico while their immigration court cases move forward in the U.S. MPP originally applied only to asylum seekers from the Northern Triangle countries of El Salvador, Honduras, and Guatemala, but has since been amended to include those from other Spanish-speaking countries like Cuba and Nicaragua.

DHS justified the inclusion of Brazilian asylum seekers by arguing there was a “more than eleven-fold” increase of Brazilian nationals apprehended at the southern border in the last year, from about 1,600 in fiscal year (FY) 2018 to 18,000 in FY 2019. Advocates criticized the expansion of the program, noting that non-Spanish speaking Brazilians will be more vulnerable in Mexico, particularly due to cartel violence.

CBP Seattle Office Memo Required Heightened Scrutiny for Iranian Nationals

An internal U.S. Customs and Border Protection (CBP) memo to the Seattle field office, leaked to the press on January 30, directed CBP officers to hold Iranian Americans and Iranian-born travelers at ports for secondary screenings. The CBP memo, issued 24 hours after the U.S. strike that killed Major General Qassem Soleimani on January 3, directed officers to vet “[a]ll persons (males and females) born after 1961 and born before 2001 with links” to Iran, including place of birth, travel, and citizenship. On January 4, up to 200 people of Iranian ancestry, including American citizens and legal permanent residents, were held for up to 12 hours of questioning while returning to the state of Washington from Canada. CBP categorically denied sending a formal directive to immigration officers ordering them to hold individuals with Iranian ancestry for additional questioning.

The report follows incidents of heightened scrutiny for individuals with links to Iran, including the deportation of at least two Iranian students enrolled at U.S. universities and the termination of certain U.S. visa eligibility for Iranian nationals.

Two Men Die in ICE Custody as Questions Continue Over Health Standards

On January 27, a Cuban man died from cardiac arrest while in Immigration and Customs Enforcement (ICE) custody in Miami, Florida. It was the sixth death documented in ICE custody since October 2019. Two days prior, on January 25, a British man died from an apparent suicide while in ICE custody in MacClenny, Florida. The death marked the third apparent suicide in ICE custody in as many months.

The two deaths come as immigration advocates continue to raise questions about conditions and health provision standards in ICE detention facilities. In response to the passing on January 27, an ICE spokesman noted that the agency was, “undertaking a comprehensive agency-wide review of this incident.”

Trump Vows Deportation Relief for Iraqi Christians

President Trump promised on January 30 to shield the Iraqi Chaldean Christian community from the threat of deportation during a rally in Warren, Michigan. The vow to stop deportations could bring relief to potentially hundreds of Chaldean Christians across the U.S. with final orders of removal. However, President Trump did not provide any specifics as to who would be eligible to remain in the U.S. At the rally, he cited discussions about the Chaldean Christian community with U.S. Representative John Moolenaar (R-Michigan) as playing a key role in his announcement.

Since 2017, DHS has moved to target members of the Chaldean Christian community with final orders of removal. In August 2019, a Chaldean Christian refugee from Detroit, Michigan named Jimmy Al-Daoud died in Iraq shortly after being deported. Al-Daoud was born in Greece and had moved to the U.S. as a refugee when he was one year old. He had never stepped foot in Iraq prior to his deportation there.

Immigration Judges Leave Due to High Caseloads and Lack of Independence

Immigration judges across the country are reportedly leaving the bench early, with many citing concerns over judicial independence and a heavy workload. In January 2020, the deportation and asylum case backlog reached a record high of over 1 million cases. The climbing case numbers in recent years prompted the Trump administration to implement a quota system in 2018, requiring judges to close at least 700 cases annually. According to the president of the National Association of Immigration Judges, a union which represents immigration judges, the quota system has resulted in added pressure on judges, who are feeling overworked and unable to provide migrants adequate due process.

The union is working to end the quota system, as well as make immigration courts independent from the Justice Department, issues they brought to the House Judiciary Subcommittee on Immigration and Citizenship during a January 29 hearing on the immigration court system. The Justice Department has petitioned to decertify the union in response to the union’s actions, claiming immigration judges are not entitled to union protections.

Portion of U.S. Border Wall Knocked Over by Wind

On January 29, a recently installed portion of border barriers along the U.S.-Mexico border was knocked over by the wind. The panels, which had been erected near Calexico, California, fell onto a row of trees in Mexicali, Mexico. No injuries or property damage were recorded in Mexicali as a result of the incident. The portion of wall had recently been constructed to replace existing walling as part of the Trump administration’s continuing push to invest in new physical barriers along the border. A spokesman for U.S. Customs and Border Protection (CBP) noted that concrete in the new wall’s foundation had not yet cured, and the panels were therefore unable to withstand the windy conditions.

Vulnerability to wind is not the only structural concern faced by the administration’s new border barriers. In a January 30 report, border officials and engineers noted that new barriers on the Arizona-Mexico border will require a large number of “storm gates” to be open for several months of the year to prevent damage resulting from flash floods.

The Trump administration is reportedly planning to divert up to an additional $7.2 billion from military funding in fiscal year (FY) 2020 to construct physical barriers around the southern border.  Much of the construction has consisted of replacing existing fencing, as was the case for the portion of walling that was blown over in California.

Legal

Supreme Court Allows Trump Administration to Implement “Public Charge” Rule

The U.S. Supreme Court issued an order on January 27 allowing the Trump administration to implement its final rule broadening the definition of the term “public charge.” The rule will 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. The Supreme Court’s order lifts a nationwide injunction issued by a federal court in New York, which blocked the “public charge” rule on October 11, 2019 before it went into effect. The order, which was granted on a 5-to-4 vote, does not explain the court’s reasoning for lifting the nationwide injunction. The Supreme Court’s order does not affect a separate preliminary injunction from the Northern District of Illinois, which continues to block the rule within the State of Illinois. The Department of Homeland Security (DHS) has petitioned the U.S. Court of Appeals for the Seventh Circuit to lift the statewide injunction in Illinois.

U.S. Citizenship and Immigration Services (USCIS) announced on January 30 that it will begin to apply the “public charge,” except in Illinois, to applications and petitions postmarked or submitted electronically on or after February 24, 2020. In addition, USCIS noted the rule will not be retroactive. The agency will not consider an applicant’s use of certain forms of public assistance before February 24, 2020 when determining whether an individual is likely to become a public charge. USCIS will only consider public benefits received on or after February 24.

The “public charge” rule will require immigration officials to take into account whether an individual uses or is likely to use an expanded list of noncash public benefits, including most forms of Medicaid, the Supplemental Nutrition Assistance Program (food stamps), and housing vouchers. The rule will also require immigration officials to weigh the “totality of circumstances” when determining whether an individual is likely to become a public charge, including whether the individual has a medical condition that may affect the individual’s ability to work and whether the individual has assets, resources, or annual income to support him or herself and all dependents, among other considerations. The regulations defines public charge as an individual who is “is more likely than not” to receive one or more of the restricted public benefits for an aggregate of 12 months or longer during a 36 month period.

The rule will not consider enrollment in the Children’s Health Insurance Program (CHIP), school lunch programs, and the use of Medicaid by children, pregnant women and new mothers toward a public charge determination. The rule will also not apply to refugee, asylees, victims of domestic violence, and children with special immigrant juvenile status (SIJS). Critics of the rule argued that it will disproportionally affect poor immigrants and lead to increased poverty and worse health outcomes for many immigrants who may choose to avoid government assistance out of fear it will impact their future in the U.S. After the rule was proposed in the Federal Register in 2018, agencies across the country reported decreased enrollment in federal nutrition programs aimed at pregnant women and at children.

The federal government estimates that the rule will impact around 382,000 people seeking to adjust their immigration status each year, though some immigration advocates claim the rule could cut legal immigration in half, meaning an impact on over 500,000 people.

Tech Companies File Lawsuit Over 350 Million Dollars in H-1B Fees

On January 26, a group of tech companies sued U.S. Citizenship and Immigration Services (USCIS) over extra charges related to filing for H-1B specialty occupation visas. The lawsuit pertains to a 2010 congressional statute, which instituted a $4,000 fraud prevention fee for H-1B applicant companies that have 50 or more employees in the U.S. and already have a workforce consisting of over 50% H-1B recipients. These so-called “50/50” companies claim that under the language of the law, the $4,000 fine should only be levied when a relevant H-1B worker applies for status from outside the country. USCIS  has been applying the fine to both outside applications and to change-of-status H-1B applications coming from inside the U.S.

The decision will likely rest on the meaning of the phrase “application for admission” in the 2010 law, and whether “admission” refers to entrance into the country or to general access to an H-1B visa.  The rule has cost affected companies hundreds of millions of dollars since 2010. The lawsuit will be heard in the U.S. District Court for the District of Columbia.

GOVERNMENT REPORTS

Government Accountability Office: U.S. Ports of Entry: Update on CBP Public-Private Partnership Programs, January 30, 2020

This report provides an update on the Donations Acceptance Program (DAP) and the Reimbursable Services Program (RSP), two U.S. Customs and Border Protection (CBP) public-private partnerships. The RSP allows entities to pay for CBP personnel to provide services at ports of entry outside of normal business hours. The DAP allows entities to donate property, funding, or non-personal services to CBP at ports of entry. This is the third annual report on the two programs, and summarizes their progress and expansion.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Immigration Courts

This fact sheet examines the current state of the U.S. immigration court system and provides information on the total number of immigration judges and cases being processed. It also addresses the cause and extent of the current immigration case backlog. The factsheet also includes a webinar, “Challenges in the Immigration Court System,” with former immigration judge Tracy Hong.

Forum Statement for the Record: Hearing on “Courts in Crisis”

This Statement for the Record for the House Judiciary Committee’s January 29, 2020 subcommittee hearing calls for more resources for the U.S. immigration court system, increased discretion for immigration judges, and for an independent immigration court system.

Public Charge Regulation Summary

This summary provides an overview of the Trump administration’s final rule that would redefine the meaning of the legal term “public charge.” Under the new, broadened definition of “public charge,” immigrants applying for a green card, an immigrant visa, or a temporary visa may be rejected if they have previously accessed or are deemed likely to rely on certain forms of public assistance.

* * *

*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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