Legislative Bulletin — Friday, July 16, 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. 2311

Emergency Security Supplemental to Respond to January 6th Appropriations Act, 2021

This supplemental spending bill includes a number of provisions related to security needs at the Capitol and around the U.S. Concerning immigration, it would increase the number of authorized Afghan special immigrant visas (SIVs) from 26,500 to 46,500. It would also reduce the employment requirement for eligibility for an SIV visa from two years to one year. The bill would also postpone the required medical exam until the applicant reaches the United States, and it would provide SIV status for family members of applicants who have been killed.

Sponsored by Senator Patrick Leahy (D-Vermont) (0 cosponsors)

07/13/2021 Introduced in the Senate by Senator Leahy

07/13/2021 Placed on the Senate Legislative Calendar under General Orders

H.R. 4391

Responsibility for Unaccompanied Minors Act

The bill would provide additional protections for unaccompanied migrant children (UACs). It would clarify the responsibilities of the Department of Health and Human Services (HHS) with regards to unaccompanied children. The bill would also make the Office of Refugee Resettlement responsible for continuing to oversee the care of UACs even after their placement with a sponsoring family. The bill is a companion to S. 772.

Sponsored by Representative Mariannette Miller-Meeks (R-Iowa) (5 cosponsors — 4 Republicans, 1 Democrat)

07/09/2021 Introduced in the House by Representative Miller-Meeks

07/09/2021 Referred to the House Committee on the Judiciary

H.R.4431

A bill making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2022.

The bill would provide funding for the Department of Homeland Security (DHS) for Fiscal Year (FY) 2022. It would allocate $111.8 million for border security technology, $345 million for USCIS to alleviate the backlogs of asylum applications, $100 million for a new, non-custodial shelter grant program for immigrant families, $655 million for land ports of entry construction and modernization, and $475 million for alternatives to detention and case management services of immigrants.

Sponsored by Representative Lucille Roybal-Allard (D-California) (0 cosponsors)

07/15/2021 Introduced in the House by Representative Roybal-Allard

07/15/2021 Referred to the House Committee on Appropriations

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, July 19, 2021.

The U.S. House of Representatives will be in session from Monday, July 19, 2021 to Thursday, July 22, 2021.

UPCOMING HEARINGS AND MARKUPS

Immigrant Farmworkers are Essential to Feeding America

Date:  Wednesday, July 21, 2021 at 10:00 am E.T. (Senate Committee on the Judiciary)

Location: 226 Dirksen Senate Office Building

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Legal

Judge Hanen Rules that DACA Is Unlawful and Halts New Applications, but Stops Short of Ending Protections of Current Recipients

On July 16, U.S. District Judge Andrew Hanen ruled that Deferred Action for Childhood Arrivals (DACA) ―a policy that allows undocumented immigrants who were brought into the U.S. as children to stay in the country―is unlawful. The ruling notes that while the Department of Homeland Security (DHS) may continue to accept new DACA applications, it is enjoined from approving them.

While finding DACA to be unlawful, Hanen stayed the portion of his decision that would halt DACA protections for current recipients. He highlighted that his decision does not affect the status of current DACA recipients and does not require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient or applicant. However, the decision notes that if the federal government fails to take appropriate steps to remedy the program’s legal shortcomings in a reasonable timeframe, Hanen may revisit the stay, which would result in the termination of work authorization and protection from deportation for current recipients.

In March, DHS Secretary Alejandro Mayorkas announced that the agency would be undertaking formal notice and comment rulemaking “to preserve and fortify” DACA, consistent with a January presidential memorandum from President Biden. It is thought that putting DACA through formal rulemaking would address a significant legal objection raised by critics of the program’s legality.

Judge Hanen had previously indicated that he may be inclined to strike down the program. In 2015, he halted a different Obama administration deferred action program that would have protected the parents of U.S. citizens and lawful permanent residents.

DACA provides protection from deportation and work authorization to over 600,000 unauthorized immigrants who were brought to the U.S. as children. The lawsuit challenging the legality of DACA was brought by a group of Republican-led states, led by Texas.

U.S. Attorney General Reinstates Administrative Closure for Immigration Judges

On July 15, U.S. Attorney General Merrick Garland issued a decision stating that Immigration Judges (IJ) and the Board of Immigration Appeals (BIA) have the authority to administratively close immigration cases pending before them. Garland’s decision overturns the decision in Matter of Castro Tum, which was issued in 2018 by former attorney general Jeff Sessions.

Administrative closure is a practice used by immigration judges to temporarily remove cases from their dockets and delay removal proceedings. Before Sessions’ 2018 opinion, administrative closure was a common practice used by immigration judges to better manage their dockets, particularly when a case involved an individual who was eligible for protection from deportation or who otherwise may have had a valid claim to legal status. For example, administrative closure was often used for those in the process of applying for Deferred Action for Childhood Arrivals (DACA) or who may have been eligible for a green card through marriage.

Garland’s decision concerned the case of a Mexican national eligible to apply for legal status, whose 2018 motion to administratively close his deportation case was denied in light of Castro-Tum. Garland reversed that decision and remanded the case for further proceedings.

Federal

U.S. to Start Evacuating Afghan SIV Applicants in Late July

On July 14, the White House announced that the U.S. will begin relocating Afghan interpreters, contractors, and other allies who have assisted U.S. efforts and may be under threat from the Taliban as the U.S. completes troop withdrawal from the country. Most of these individuals are eligible for U.S. Special Immigrant Visas (SIV), but approximately 18,000 applicants and their families remain stuck in the backlog. According to the announcement, the evacuation mission will be called Operation Allies Refuge and will start the final week of July. It is expected to finish before the complete withdrawal of U.S. troops at the end of August.

Even though the official number and planned destination of the evacuees was not disclosed, a senior Pentagon official speaking on condition of anonymity said that as many as 70,000 people would be evacuated to a U.S. territory (possibly Guam) and one or more third countries (possibly Uzbekistan and Tajikistan).

During the announcement of the operation, the White House recognized the value and role of Afghan allies over the last several years and reiterated that they will continue working to assist Afghan SIV applicants who wish to continue their visa processes outside of Afghanistan.

Senate Democrats’ $3.5 Trillion Budget Reconciliation Plan Includes Immigration Reforms

On July 13, Senate Democrats announced they had come to an agreement on the outline of a $3.5 trillion budget reconciliation package, with several Senators noting that they expect immigration reforms will be included in the plan. The budget reconciliation process would allow Democrats and the Biden administration to avoid a Senate filibuster and pass legislation with a simple majority. Senator Alex Padilla (D-California) said that it was his “understanding and expectation” that the package announced on July 13 includes a pathway to citizenship for Dreamers, Temporary Protected Status (TPS) holders, farmworkers, and essential workers. The plan is also likely to include funding for border security reforms.

The plan remains a blueprint, legislative text has not yet been drafted and Senate Majority Leader Chuck Schumer has stressed that this is still the beginning of a long road towards potential passage. While the bill can pass with a simple majority, it would likely need unanimous support from Senate Democrats. On July 14, key moderate Senator Joe Manchin (D-West Virginia) said that he supported the inclusion of immigration reforms in a potential reconciliation package, although he signaled his opposition to other aspects of the expansive plan.

Another challenge facing the plan’s proponents is the Byrd Rule, a requirement that budget reconciliation bills must only include provisions that affect government spending or revenues. It remains uncertain whether the Senate Parliamentarian will rule that immigration-related provisions are appropriately related to spending or revenues and will be allowed into a final package.

The $3.5 trillion outline was whittled down from a $6 trillion outline initially drafted by Senate Budget Committee Democrats in June. President Biden and Democratic leadership plan to move budget reconciliation in concert with a bipartisan infrastructure deal, although discussions on that agreement have recently stalled.

CBP Report Shows Border Arrivals Rose in June to Highest Monthly Total in at Least a Decade

On July 16, U.S. Customs and Border Protection (CBP) reported that unauthorized border crossings in June rose to 188,829 from 180,034 in May. Arrivals have been increasing for over a year since they cratered in May 2020 at the start of the COVID-19 pandemic. In the spring of 2021, sharp increases in border encounters in February and March were followed by a relative plateau in April and May. The CBP report shows that arriving families and unaccompanied children accounted for the entirety of the June increase, with individuals in family units rising to 55,805 from 44,639 in May, and arriving unaccompanied children rising to 15,253 from 14,158. This signals a change from previous months, which saw a marked increase in single adults accompanied by a decline in unaccompanied children and individuals in family units.

According to a DHS official, the June arrival numbers are the highest in at least a decade. However, those overall numbers remain inflated due to a high number of repeat crossers, with recidivism rates reportedly at 34%. According to a July 11 report, one migrant from Mexico believes he has made 30 separate attempts to cross.

Since May 2020, a majority of all migrants arriving at the border — even those seeking humanitarian protection — have been sent back immediately under a pandemic-era Centers for Disease Control and Prevention (CDC) rule called Title 42. Reports suggest the administration plans to end the use of the protocol by the end of the summer, despite opposition from prominent Republicans. Unaccompanied children and some vulnerable family units have already been exempted from Title 42 and allowed into the country to pursue their asylum claims, and it is likely the administration will gradually expand those exemptions rather than end use of the protocol all at once.

While the rate of exemptions to Title 42 rose only slightly in June, new guidelines rolling back the protocol are continuing to result in a more orderly process overall. Asylum seekers presenting themselves to the Office of Fields Operation at ports of entry rose 30% in June, while migrants apprehended by Border Patrol between ports of entry rose just 3.5%.

In addition to rolling back Title 42, the White House is also planning to continue to provide relief to vulnerable asylum seekers who were caught up in a variety of Trump administration asylum restrictions. According to a July 14 report, the Biden administration will allow some asylum seekers who were sent to Guatemala under a Trump-era agreement back into the U.S. to pursue their claims. In 2019 and 2020, 945 asylum seekers were sent from the U.S. to Guatemala to apply for asylum under a deal known as an Asylum Cooperative Agreement, but the Northern Triangle country did not have the infrastructure in place to protect them or adjudicate their claims. Of the 945 who were sent to Guatemala, zero individuals have thus far been granted asylum.

Biden Administration Warns Cubans and Haitians Against Fleeing to U.S. by Sea amid Unrest

On July 13, the Biden Administration announced that asylum seekers from Haiti and Cuba who attempt to enter the United States by boat will not be allowed to enter. The announcement came amidst growing political turmoil in both Caribbean nations. The situation in Haiti has deteriorated in recent weeks after the assassination of the country’s president. Meanwhile, Cuba faces widespread protests throughout the island, as citizens call for the end of the 62-year-old political regime.

The number of Cuban and Haitian immigrants intercepted at sea is on the rise. This year to date 470 Cubans and 313 Haitians have been stopped by the U.S. Coast Guard, while in 2020, only 49 Cubans and 430 Haitians were encountered. The vast majority of Cuban and Haitian immigrants, however, are not arriving by sea but are apprehended at the U.S.-Mexico border. 2,800 Haitians and 2,600 Cubans were encountered at the border in May alone. 10,000 Haitian refugees are believed to be stuck at the border, unable to pursue asylum in the U.S. due to the threat of immediate expulsion under a protocol called Title 42.

DHS Secretary Alejandro Mayorkas warned that “the time is never right to attempt migration by sea. If you take to the sea, you will not come to the United States.” The announcement does not represent a shift in policy. The U.S. has returned the majority of migrants encountered at sea for decades, allowing a limited number to make asylum claims for subsequent placement in third countries such as Australia.

Biden Administration Assigns More Staff to Reduce DACA Application Backlog

On July 13, U.S. Citizenship and Immigration Services (USCIS) announced that it would assign more immigration officers to review applications for Deferred Action for Childhood Arrivals (DACA), which protects certain immigrants who arrived in the country as children from deportation and provides them with temporary work authorization. The announcement came in response to a soaring backlog of applications that has piled up amid processing delays during the COVID-19 pandemic. According to USCIS, as of May 31, only 1,900 of the 62,000 first-time DACA submissions had been adjudicated. By the end of June, the backlog of pending first-time applications jumped to over 81,000 petitions, a 48% increase from late March.

USCIS’s interim director stated that “several factors have caused some DACA requests to be processed outside our stated processing time goals, including unexpected technical issues, training or retaining time, and delays for biometrics appointments.” In addition to utilizing the new personnel, USCIS will also conduct a public awareness campaign to educate DACA applicants about how to reduce the processing time of their applications and how to renew their work permits and deportation deferrals. The agency has also fixed a technical problem that was delaying the validation of DACA registration numbers issued by the federal government.

ICE Is Using Driver’s License Data to Gain Intel on Undocumented Immigrants

On July 13, a new report from the Center for Public Integrity revealed that motor vehicle agencies in at least seven states — each of which allows undocumented immigrants to obtain driver’s licenses — have shared immigrants’ personal information to U.S. Immigration and Customs and Enforcement (ICE) since January 2020. The report highlights that ICE agents request the motor vehicle agencies to run facial recognition searches to match a provided photo. On other occasions, ICE agents seek individuals’ addresses and driving records.

The report outlines the policies of each of the sixteen states, plus Washington, D.C., and Puerto Rico, that allow undocumented immigrants to receive driver’s licenses. From that pool, only four states (New Jersey, New Mexico, Virginia, and Washington) require ICE agents to provide proof of a criminal investigation, such as a court order or arrest warrant, before allowing the vehicular agency to hand over data. In Oregon and Maryland, the agency has full access to law enforcement databases and driving records without making a request. In California and Hawaii, the motor vehicle departments cannot share information with ICE for immigration enforcement purposes. In the rest of the states, the policies and laws vary.

ICE’s use of personal data for enforcement purposes has discouraged undocumented immigrants from obtaining driver’s licenses, according to the report.

Nominations/Personnel

Sheriff Ed Gonzalez Attends Confirmation Hearing to Serve as Director of ICE

On July 15, the U.S. Senate Committee on Homeland Security and Governmental Affairs held a confirmation hearing for Harris County (Texas) Sheriff Ed Gonzalez to serve as the next U.S. Immigration and Customs Enforcement (ICE) director.

Sheriff Gonzalez, a grandson of immigrants, pledged in his opening remarks to uphold the highest principles of law enforcement. He stressed that “the American dream relies upon the rule of law and a functioning legal immigration system.” During questioning from Committee members, Gonzalez said he believed that unauthorized entry into the United States should remain a crime. He also emphasized that ICE should prioritize arrests of recent border crossers and serious criminals. “We should be strategic and smart in our enforcement,” he said.

Sheriff Gonzalez is a co-chair of the Law Enforcement Immigration Task Force (LEITF), and his nomination received support from more than 60 law enforcement leaders.

GOVERNMENT REPORTS

Congressional Research Service (CRS): Reinstatement of Removal: An Introduction; July 8, 2021

This explainer summarizes the statutory framework and implementation of the Reinstatement of Removal process. It explains that Reinstatement of Removal denies unauthorized immigrants the opportunity to apply for any relief if they have re-entered the U.S. after previously being removed. As a general rule, immigrants in removal proceedings have the right to appear before an immigration judge and to appeal an adverse decision. Immigrants who have returned after already being removed once, however, do not have these rights and can be removed under the prior order at any time after reentry.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Deferred Action for Childhood Arrivals (DACA)

This resource provides information about the Deferred Action for Childhood Arrivals (DACA) policy. It also describes how DACA recipients strengthen the United States and why Dreamers are still in need of a permanent solution.

Explainer: What’s Happening at the U.S.-Mexico Border

This regularly updated explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior. The explainer also includes a Facebook live discussion covering recent developments at the border.

Fact Sheet: Overview of the Special Immigrant Visa Programs

This resource provides an overview of the Special Immigrant Visa (SIV) programs, which provide a pathway to status for Afghans who have assisted U.S. efforts in Afghanistan and who face threats based on their association with the U.S. The fact sheet describes the SIV application process and eligibility requirements.

* * *

*This Bulletin is not intended to be comprehensive. Please contact Arturo Castellanos-Canales, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Danilo can be reached at acastellanos@immigrationforum.org. Thank you.

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