Legislative Bulletin – Friday, January 8, 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. 2174

The Missing Persons and Unidentified Remains Act

The bill would authorize the Attorney General to provide grants to various entities to report, process, and identify missing persons and unidentified remains. It would also provide for the implementation of up to 170 self-powered “rescue beacons” in isolated border regions to prevent migrant deaths.

Sponsored by Senator John Cornyn (R-Texas) (3 cosponsors – 2 Democrats, 1 Republican)

07/18/2019 Introduced by Senator Cornyn in the U.S. Senate

07/18/2019 Referred to the Committee on the Judiciary

11/17/2020 Passed the Senate by Unanimous Consent

11/18/2020 Introduced in the House of Representatives as H.R. 8772 by Representative Vicente Gonzalez (D-Texas)

11/18/2020 Referred to the House Committees on Homeland Security and the Judiciary

12/16/2020 Amended and Passed the House under Suspension of the Rules

12/18/2020 Senate Agreed to House Amendments by Unanimous Consent

12/31/2020 Signed by the President into Law

H.R. 133

Consolidated Appropriations Act, 2021

The bill is a combined COVID-19 relief and appropriations bill. It contains approximately $900 billion in pandemic relief funding and $1.4 trillion in appropriations for government spending in 2021. Concerning immigration, the $600 stimulus checks provided in the COVID-19 relief portion of the bill will include mixed status families in which a U.S. citizen files jointly with an Individual Taxpayer Identification Number (ITIN) filer. The appropriations portion of the bill includes $1.375 billion for the construction of a “barrier system” on the Southwest border. The bill also includes $2.8 billion to fund Immigration and Customs Enforcement (ICE) detention of 34,000 people a day and $61 million for additional immigration judges.

Sponsored by Representative Henry Cuellar (D-Texas) (4 cosponsors — 3 Democrats, 1 Republican)

01/03/2019 Introduced in the House of Representatives by Representative Cuellar

01/10/2019 Passed in the House under Suspension of the Rules

01/15/2020 Amended and Passed in the Senate by Unanimous Consent

12/21/2020 House Agrees to Part of the Amendments Resolving Differences by a Vote of 327-85, and Part of the Amendments Resolving Differences by a Vote of 359-53.

12/21/2020 Senate Agrees to Amendments Resolving Differences by a Vote of 92-6.

12/27/2020 Signed by the President into Law

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate is not currently scheduled to be in session the week of January 11, 2020.

The U.S. House of Representatives will be in session the week of January 11, 2020.

UPCOMING HEARINGS AND MARKUPS

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

THEMES IN WASHINGTON THIS WEEK

Federal

Mixed-Status Families Included in Stimulus Relief

Some mixed-status families are eligible for stimulus checks provided by the latest coronavirus relief package, which passed Congress and was signed into law by President Trump on December 27. Households where U.S. citizens or green card holders filed jointly with an undocumented spouse are now eligible to receive $600 in direct aid and additional $600 checks for their dependents. The new clause will also allow mixed-status families to retroactively receive stimulus payments of $1,200 per household and $500 per child which had originally been allocated by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in late March.

The CARES Act had excluded mixed-status families from accessing relief, and a bipartisan group of Senators, led by Senator Marco Rubio (R-Florida), pushed for mixed-status families to be included in the latest round of checks and to receive retroactive payments. With this expansion of relief, an additional 5 million individuals will be able to receive aid.

Not all mixed-status families will have access to relief. Undocumented immigrants and households with children who are U.S. citizens but neither parent has a Social Security number will still be ineligible for stimulus payments.

Approximately 16.2 million people in total live in mixed status families in the United States.

Missing Persons and Unidentified Remains Act Signed into Law

On December 31, President Trump signed into a law a bipartisan bill that aims to help prevent migrant deaths on the Southwest border and to help border counties and nonprofit organizations locate and identify missing migrants. The Missing Persons and Unidentified Remains Act (MPURA) was spearheaded in the Senate by Senator John Cornyn (R-Texas) and Vice President-elect Kamala Harris (D-California). The bill authorizes the attorney general to provide grants to various entities to report, process, and identify missing persons and unidentified remains at the border. It also provides for the implementation of up to 170 self-powered “rescue beacons,” used by U.S. Border Patrol (USBP) to rescue migrants in distress.

U.S. Border Patrol has reported 7,505 migrant deaths on the border since 1998, most due to dehydration, drowning, and exposure to extreme heat. After record heat in the summer of 2020, a tracking project run by the Pima County Medical Examiner’s Office and the nonprofit Humane Borders recorded a 10-year high in Arizona border deaths. The bodies of migrants lost during attempted border crossings become increasingly difficult to identify after exposure to the desert for prolonged periods.

The bill garnered support from both parties, as well as immigration advocates, law enforcement and forensic science groups. Senator Cornyn said of the effort, “this bipartisan legislation addresses one of the most prevalent and tragic crises we face along our border.”

Asylum Seekers Protest Migration Protection Protocols

On December 30, as many as 200 Cuban asylum-seekers initiated a protest at the United States border between El Paso, Texas, and the northern Mexican city of Ciudad Juarez. The migrants expressed frustration toward the Trump administration’s Migration Protection Protocols (MPP), also known as “Remain in Mexico,” which has forced thousands of asylum seekers to wait in often dangerous conditions in Mexico while their claims are processed in the U.S.

Since the program started in early 2019, approximately 69,000 migrants have been sent back to wait in makeshift camps and lodging in Mexico’s northern border regions, which rank among the most dangerous in the country. A January 6 Human Rights Watch report details the dangers many asylum seekers have faced while waiting in MPP, including widespread crime, violence, and physical and emotional harm. A previous report documented over 1,300 cases of murder, rape, kidnapping, and other violent assaults experienced by those forced to return to Mexico.

During the coronavirus pandemic, the administration has indefinitely paused the processing of asylum seekers who have been returned to Mexico under MPP. Many have now been waiting for months in cramped conditions, without access to basic hygiene resources, while the pandemic continues to spread.

The incoming Biden administration has pledged to roll back MPP, but incoming domestic policy advisor Susan Rice said in a recent interview that reversing Trump administration restrictions at the border may take months.

Administration Touts Border Barrier Efforts as Fate of Future Construction Remains Unclear

In a press call on January 5, acting commissioner of Customs and Border Protection (CBP) Mark Morgan touted the Trump administration’s construction of 450 miles of barriers along the U.S.-Mexico border. The construction has come in spite of ongoing legal challenges, including a case questioning the legality of the diversion of military funds to be used for barrier construction that has been taken up by the U.S. Supreme Court.

Acting commissioner Morgan noted that $16 billion in total had either been spent or allocated towards the construction effort, with plans already in place to construct 350 additional miles of fencing. Approximately $10.5 billion of that funding 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.

On December 27, President Trump passed into law a budget for Fiscal Year (FY) 2021 which included an additional $1.375 billion for a border “barrier system.” Texas Democrat and vice chairman of the House Appropriations Homeland Security Subcommittee Henry Cuellar said that “there is no definition of barrier systems,” and that the incoming Biden administration will have leeway to use the funds for purposes other than wall construction.

In the January 5 press call, commissioner Morgan confirmed that the Trump administration has moved quickly to award large border wall contracts to private construction companies, potentially complicating any incoming Biden administration attempt to use the funds in another manner.

ICE Confirms Unprecedented Number of Deportations of Immigrant Family Members in FY 2020

On December 23, U.S. Immigration and Customs Enforcement (ICE) reported it had deported 14,500 migrant family members during fiscal year (FY) 2020, a record number. Despite a reduction in the number of individuals entering the United States due to the COVID-19 pandemic, these deportations surpassed the total of 10,000 family member deportations conducted over the past three years combined.

The ICE report also revealed that deportations of unaccompanied minors and adults dropped by 30 percent this fiscal year. However, those deportation numbers do not include the nearly 200,000 “expulsions” of migrants this year under a pandemic-era CDC rule that was made effective in late March, a policy which enabled border officials to remove immigrants within hours of their arrival on U.S. soil, bypassing standard immigration proceedings and preventing asylum seekers from requesting protection.

Biden Plans to Nominate Merrick Garland as Attorney General

According to multiple news reports, President-elect Biden will nominate Merrick Garland to lead the U.S. Department of Justice (DOJ) to serve as Attorney General in his administration. A former federal prosecutor and Justice Department official, Garland served as the Chief Judge of the United States Court of Appeals for the District of Columbia from 2013 until February 2020. Although Senate Republicans declined to take action on his nomination to the U.S. Supreme Court nomination in 2016, Garland’s expected nomination as attorney general has received bipartisan support, with Senator Lindsey Graham (R-South Carolina) calling it a “sound choice.” The attorney general leads the DOJ, which is responsible for administering immigration courts and adjudicating immigration cases through the interpretation and administration of federal immigration laws.

Legal

First New DACA Applications Approved in Wake of Court Decision  

For the first time in several years, new Deferred Action for Childhood Arrivals (DACA) applications have been approved by the Department of Homeland Security (DHS). As of January 4, 171 new applicants have been given DACA protections since December 7, and 2,713 initial applications have been submitted.

The agency began accepting new DACA applications on December 7, following a November ruling by a federal judge in New York which set aside limitations placed on the program in a July 28 DHS memorandum. The memorandum, issued by acting DHS secretary Chad Wolf, barred new DACA applications and limited existing recipients to renewing their protections for one year.

The New York judge invalidated the memorandum on the basis that Wolf was improperly appointed to his position and restored DACA to its status before September 2017, providing access to protection to hundreds of thousands of eligible individuals and restoring the length of protections to two years.

Despite the New York decision and last summer’s U.S. Supreme Court decision allowing DACA to survive in June, the fate of Dreamers remains unsettled without a legislative solution. In a separate lawsuit in the Southern District of Texas, U.S. District Judge Andrew Hanen indicated that he may be inclined to strike down the program in the next few weeks. In 2015, Hanen halted a different Obama administration deferred action program that would have protected the parents of U.S. citizens and lawful permanent residents. A ruling on the Texas case is expected to be issued imminently.

Court Rules President Has Authority to Ban Immigrants Without Approved Health Insurance

On December 31, the U.S. Court of Appeals for the Ninth Circuit upheld a presidential proclamation that bars the entry of immigrants without proof of “approved” health insurance or the ability to pay out-of-pocket for medical care. In a 2-1 decision, the court ruled that the uninsured ban is within the president’s authority under the Immigration and Nationality Act. In a previous lower court decision in November 2019, a federal judge had blocked the ban from going into effect.

According to legal experts, the Ninth Circuit’s ruling will not immediately go into effect. Challengers to the uninsured ban have 45 days to petition for an en banc rehearing from the full U.S. Court of Appeals for the Ninth Circuit. With a January 20 inauguration date, the Biden administration will have assumed office before the 45-day period expires and will have the authority to withdraw the ban once in office.

The uninsured ban would deny visas to immigrants who would otherwise be eligible for them, including the spouses, adult children, parents and siblings of U.S. citizens and the spouses of lawful permanent residents (LPRs). To be eligible for entry under the ban, an individual must have access to health insurance upon entering the U.S. either provided through an employment or purchased individually without the use of certain Affordable Care Act (ACA) subsidies.

Immigration advocates argue that the ban unfairly targets low-income immigrants and could reduce legal immigration by up to two-thirds.

State and Local

California Immigrants Return to Mexico in Response to Restrictionist Policies, Pandemic

According to a December 31 report in The Guardian, a growing number of Mexican immigrants living in California are making the decision to return to Mexico. The report citied researchers who have estimated that the immigrant population of California dropped by more than 6% in the past year, largely as a result of the COVID-19 pandemic along with U.S. policies restricting immigration. The researchers similarly found that the total U.S. immigrant population dropped by 2.6% 2020, the largest decline in 20 years

California immigrants are more likely than native-born Americans to be working on the frontlines of the pandemic as essential workers. Undocumented immigrants make up over 75% of farmworkers in the California and immigrants constitute a significant portion of the state’s delivery drivers, physicians, and grocery store clerks. Many California immigrants did not have access to stimulus checks and other public benefits designed to provide relief to those struggling to survive the health and economic devastation of the pandemic. Others were reluctant to take advantage even of the services that were available to them due to concerns over the Trump administration’s “public charge” rule, which gives the government the ability to deny permanent residency to immigrants who have relied on certain benefits.

According to one family who left California and returned to Mexico, “in comparison to what it was in the U.S., the situation for us in Mexico right now is much better.”

GOVERNMENT REPORTS

Office of the inspector general (OIG): ICE Needs to Address Prolonged Administrative Segregation and Other Violations at the Imperial Regional Detention Facility; December 18, 2020.

In this report, the Department of Homeland Security’s Office of the Inspector General reveals that the Imperial Regional Detention Facility (IRDF) in Calexico, CA has violated multiple standards for detention. These violations threaten the health, safety, and rights of the detainees. The report explains how detainees were held in administrative segregation for 22 or 23 hours per day, and two detainees were isolated for over 300 days. Some areas in the IRDF were in poor structural condition, and routine medical checks were insufficient as to determine proper care for detainees. Furthermore, the investigation found that medical grievances and responses were not properly documented.

Congressional Research Service (CRS): U.S. Customs and Border Protection’s Powers and Limitations: A Brief Primer; December 9, 2020

This report is an explainer on the powers and limitations of U.S. Customs and Border Protection (CBP). CBP enforces federal customs and immigration laws at the border and at ports of entry. Two agencies within CBP, the Office of Field Operations and the U.S. Border Patrol, are respectively responsible for conducting inspections and enforcing immigration laws at ports of entry, and for apprehending foreign nationals and preventing the smuggling of illicit goods into the country.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Bill Analysis: The Missing Persons and Unidentified Remains Act

This resource summarizes and provides context for the Missing Persons and Unidentified Remains Act, which would take steps to prevent migrant deaths on the Southwest border and help border counties and nonprofit organizations locate and identify missing migrants.

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. The fact sheet also explains why some undocumented spouses may be unable to obtain legal status, and how these families have been excluded from some COVID-19 relief legislation.

Where Did the Trump Administration Get $13.7 Billion to Build Barriers on the U.S.-Mexico Border?

This infographic focuses on the Trump administration’s effort to fund the construction of barriers on the Southwest border. The infographic describes the various sources of funding used by the administration and the amount of new and replacement barriers that have been constructed.

* * *

*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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