Legislative Bulletin – Friday, July 24, 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

H.R. 2214

National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act

This bill imposes limitations on the President’s authority to suspend or restrict aliens from entering the United States and terminates certain presidential actions implementing such restrictions. It would repeal multiple presidential orders issued by the Trump administration, including those primarily banning the entrance of certain individuals from  majority-Muslim countries, barring access to asylum for individuals who crossed the border without authorization, and instituting extreme vetting for refugees. It also imposes significant limitations on future restrictions, requiring such restrictions only be issued to address compelling governmental interests and to be narrowly tailored. The Senate companion bill is S. 1123.

Sponsored by Representative Judy Chu (D-California) (219 cosponsors –219 Democrats, 0 Republicans)

04/10/2019 Introduced in the House by Representative Chu

04/10/2019 Referred to the House Committees on the Judiciary, Foreign Affairs, Homeland Security, and Intelligence

07/22/2020 Passed the House as an amendment to H.R. 2486 by a vote of 233-183

H.R. 5581

Access to Counsel Act of 2020

This bill would provide the right to access counsel to immigrants in detention and to those who present themselves to Border Patrol personnel under certain circumstances. The bill would also direct Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) to improve detention conditions and limit detention stays to the briefest term possible.

Sponsored by Representative Pramila Jayapal (D-Washington) (50 cosponsors –50 Democrats, 0 Republicans)

1/10/2020 Introduced in the House by Representative Jayapal

1/10/2020 Referred to the House Committees on Homeland Security and on the Judiciary

07/22/2020 Passed the House as an amendment to H.R. 2486 by a vote of 231-184

H.R. 7650

Coronavirus Containment Act of 2020

The bill would require that ICE, prior to the deportation of foreign nationals, test all such individuals for COVID-19 and coordinate with receiving countries to ensure their safety. The bill would prohibit the deportation of any individual who has tested positive for COVID-19.

Sponsored by Representative Jerrold Nadler (D-New York) (18 cosponsors –18 Democrats, 0 Republicans)

07/16/2020 Introduced in the House by Representative Nadler

07/16/2020 Referred to the House Committee on the Judiciary

S. 4243

Protect Children of Immigrant Workers Act

The bill would protect children in families who are currently in nonimmigrant status in the U.S. but are stuck in the green card backlog. Due to the length of the backlog, many of these children can become unauthorized when they turn 21 and are no longer eligible to be dependents on their parents’ visas. This bill would allow those children to continue in line with their families.

Sponsored by Senator Dick Durbin (D-Illinois) (0 cosponsors)

07/21/2020 Introduced in the Senate by Senator Durbin

07/21/2020 Referred to the Senate Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of July 27, 2020.

UPCOMING HEARINGS AND MARKUPS

Oversight of U.S. Citizenship and Immigration Services

Date: Wednesday, July 29, 2020 at 10:00 am E.T. (House Judiciary Committee and Judiciary Subcommittee on Immigration and Citizenship)

Location: 2141 Rayburn House Office Building

Witnesses:

Joseph Edlow, Deputy Director of Policy, U.S. Citizenship and Immigration Services

Sharvani Dalal-Dheini, Director of Government Relations, American Immigration Lawyers Association

Michael Knowles, President, American Federation of Government Employees Local 1924

Doug Rand, Senior Fellow, Federation of American Scientists

Jessica Vaughn, Director of Policy Studies, Center for Immigration Studies

Counting Every Person: Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks

Date: Wednesday, July 29, 2020 at 10:00 am E.T. (House Committee on Oversight and Reform)

Location: 2154 Rayburn House Office Building

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Federal

President Trump Releases Memorandum to Exclude Undocumented Immigrants from the 2020 Census Apportionment Count

On July 21, President Trump issued a presidential memorandum to the Secretary of Commerce, who oversees the 2020 Census, to exclude undocumented immigrants from the census apportionment count, which determines the number of House seats for each state.

The memorandum faces significant legal and implementation hurdles, as it violates the longstanding practice of including all U.S. citizens and noncitizens in the apportionment count. Apportioning on the basis of total population is consistent with constitutional mandates to count all “persons” when conducting the census and apportioning the U.S. House of Representatives. The memorandum already faces multiple legal challenges. In addition, in the absence of an official tally of the undocumented population, it is not clear how the administration would be able to carry out the order, particularly after the U.S. Supreme Court rejected the inclusion of a citizenship question on the 2020 Census last year. Following the Supreme Court’s decision, the Trump administration ordered federal agencies to collect and share administrative records relating to citizenship with the Commerce Department, but the use of that data is likely to lead to significant errors.

If the memorandum is implemented, regions with large immigrant populations could lose substantial amounts of federal funding as well as congressional representation — including Republican-leaning states that have experienced disproportionately large increases in immigrant populations. Rural areas where immigration has bolstered economic growth and mitigated population decline also stand to lose out if such a rule is implemented.

The memorandum followed the Trump administration’s April request to Congress for a four-month extension of the deadline for reporting the census data due to the COVID-19 pandemic. The extension could delay the impact of the memo until after the November elections. House Democrats lawmakers have also called an emergency hearing following the issuance of the memo and may issue a legislative response.

Report: ICE Detaining Migrant Children in U.S. Hotels Prior to Deportation

According to a report on July 22, U.S. Immigration and Customs Enforcement (ICE) is detaining young migrant children in U.S. hotels in Arizona and Texas before deporting them to their home countries. ICE has reportedly been using a private contractor to carry out the hotel detentions, some of which have lasted for weeks and have impacted children as young as one year old. The credentials of those hired by the private contractor to care for the children remain unclear, and ICE reportedly refers to them as “transportation specialists.” The hotels have been used hundreds of times, while thousands of beds designed for the care of children remain open in Office of Refugee Resettlement (ORR) shelters.

Under the Trafficking Victims Protection Reauthorization Act (TVPRA), unaccompanied migrant children arriving at the border must be screened for trafficking and fear of persecution and moved to ORR custody prior to placement with a sponsor or guardian. In recent months, however, in response to the COVID-19 pandemic, the administration has been summarily expelling these children without first determining whether they are fleeing persecution or violence. The hotel detention is part of the administration’s efforts to continue these rapid deportations. The policy is part of a March 20 Centers for Disease Control and Prevention (CDC) rule, which was made indefinite in May, that has resulted in the expulsion of at least 2,000 unaccompanied children.

Advocates for migrant children have criticized the use of hotels to detain children as part of a “shadow system in which there’s no accountability for expelling very young children.” The advocates are also challenging the use of hotels under the Flores settlement agreement, which along with the TVPRA controls how the federal government must treat detained immigrant children, including placing a 20-day limit on the detention of children.

USCIS Delays Furloughs After Change in Financial Projections

On July 24, USCIS announced it would be delaying planned furloughs to its workforce until August 31. The fee-funded agency had previously announced it faced a serious budgetary crisis due to the COVID-19 pandemic and had issued furlough notices to more than 13,000 employees – a majority of the agency’s workforce. The decision to delay the furloughs, which had been slated to begin August 3, appears to be in response to an apparent change in financial projections for the agency, as documented in a July 21 letter sent to the Department of Homeland Security (DHS) by Senators Pat Leahy (D-Vermont) and Jon Tester (D-Montana). The letter urged the agency to halt the furloughs, noting that the agency was now projecting a surplus for the remainder of the fiscal year. The letter further noted that Congress is committed to addressing future potential USCIS financial shortfalls in the next COVID-19 stimulus package.

Senators Leahy and Tester are ranking members of the Senate Appropriations Committee and its Homeland Security Subcommittee, respectively.

In addition to the planned furloughs, USCIS has taken other steps to rebalance the budget, including significantly reducing the printing of green cards and employment authorization documents, which as of July 22 has resulted in a backlog of over 115,000 such documents.

Progressive Democrats Look to Pull House DHS Spending Bill Amid Deployment of Federal Agents to Portland

On July 22, a number of progressive House Democrats called on Democratic leadership to withdraw the DHS funding bill, which was set to be considered on the House floor the week of July 27. The DHS funding bill includes numerous provisions related to immigration and border protection, including funding to U.S. Customs and Border Protection (CBP) and ICE.

The call to pull the funding bill came in response to the continued involvement of DHS law enforcement officers, including ICE and CBP agents, in a controversial administration effort to crackdown on protests in Portland, Oregon. The use of DHS personnel has drawn criticism from former Bush administration DHS secretaries Tom Ridge and Michael Chertoff and the agencies have been criticized for their use of camouflage, tactical gear, and unmarked vans, and local officials have stated that their involvement would only further erode community trust in local law enforcement.

DHS officials have defended the use of ICE and CBP personnel, calling the situation in Portland “unique” and noting that it is the responsibility of the agency to protect federal property. Reports suggest the administration is planning on sending additional DHS and U.S. Department of Justice personnel to other major cities, including Chicago and Kansas City.

Prior to the deployment of DHS officers to Portland, the DHS funding bill, which would reduce amounts appropriated to ICE detention efforts and place limits on funding the construction of barriers on the U.S.-Mexico border, had strong support among House Democrats. Despite the objections of progressives, Democratic appropriators are not expected to withdraw the DHS bill, which is supported by the Congressional Hispanic Caucus.

Harvard: New International Students Are Still Barred by ICE Guidance

Despite the July 14 reversal of a rule from the Trump administration that would have required international students in the U.S. to leave the country if their school moved to online-only coursework, Harvard University Dean Rakesh Khurana stated that new international students will still be unable to enter the U.S. Dean Khurana announced on July 21 that ICE guidance will prevent Harvard from welcoming first-year international students in the fall because  the university shifted to online-only coursework for the fall semester in response to COVID-19. Guidance issued by ICE on March 9 allowed already enrolled international students to continue their coursework online but did not change existing requirements limiting new students to only one course per semester online.

International student advocates have noted that “many of these students have spent months – and more likely years – of preparation to start their education at our institutions. Their absence from the U.S. hurts all students and will have lasting effects. It undermines our nation’s standing as the destination of choice for international students.”

Harvard is also working with members of the Massachusetts congressional delegation to find a solution for the newly admitted students. The university does not anticipate “any change to the policy in time for the fall semester” from the Trump administration.

Although first-year students can still attend Harvard virtually, many international students have expressed concerns about studying from home, including having to attend courses in the middle of the night in different time zones, lacking sufficient resources and stable internet connections, or forgoing opportunities to teach or participate in research that could be tied to scholarships.

Legal

Federal Judge Denies Request for Families to Be Released from ICE Detention Centers 

On July 22, U.S. District Judge James Boasberg denied a preliminary injunction regarding a lawsuit requesting the release of roughly 300 parents and children being held in ICE family detention centers. The decision follows U.S. District Judge Dolly Gee’s ruling that all children held for over 20 days in the three facilities must be released  due to the centers being “on fire” with the coronavirus. Judge Gee’s decision did not apply to the children’s parents, and lawyers representing detained families had requested that Boasberg order the parents be released as well.

Although Boasberg stated that ICE “continues to fall short of full compliance” with its guidelines to prevent the spread of COVID-19, he also argued that the agency was making strides to increase the use of masks, sanitation and isolation for anyone who had come into contact with anyone who had tested positive.

With the children still set to be released under Judge Gee’s previous ruling, immigrant advocates are concerned that ICE will give detained families a “binary choice,” requiring that they choose between waiving their children’s right to be released and remain together in detention indefinitely or agreeing to be separated from their children so the children can be released to a sponsor or a non-congregate setting. Judge Gee recently extended the deadline for the release of the children from July 17 to July 27.

The administration and legal representatives for the families are currently negotiating how the children will be released.  “Asking a parent to choose between indefinite detention in a place where there is already a COVID outbreak and being separated from your child for an undetermined length of time, that is a coercive situation,” said one attorney providing legal representation to the families.

Additional Lawsuits Filed Against Proclamation Suspending Immigration

Two additional lawsuits have been filed challenging the June 22 Presidential Proclamation suspending certain categories of immigration from outside the U.S. – one by the American Immigration Lawyers Association (AILA) and one by the U.S. Chamber of Commerce. The June proclamation extended green card restrictions which first went into place in April and included several additional bans on certain categories of temporary guestworkers and their families.

While previous ongoing lawsuits have challenged particular aspects of the proclamation, the AILA suit, filed on July 17, is the first to challenge the entirety of the restrictions. In a press release announcing the challenge, AILA representatives wrote that the ban “has indefinitely separated families, thrown the business plans of companies into chaos, eliminated visa categories that allow hundreds of thousands of foreign nationals to live and work in the United States, and rejected decades of Congressional judgments.”

On July 21, numerous major business organizations, including the U.S. Chamber of Commerce, TechNet, and the National Association of Manufacturers also filed suit challenging the June 22 proclamation. The lawsuit argues that the proclamation “takes a sledgehammer to the statutes Congress enacted with respect to high-skilled and temporary worker immigration.” It argues further that “the executive may not take actions that are facially arbitrary or that lack a rational connection to the problem identified.”

According to a July 21 report, should the restrictions remain in effect, by 2021 the Trump administration will have cut legal immigration by 49%.

Canadian Court Rules Against U.S.-Canada Safe Third Country Agreement

On July 22, the Federal Court of Canada ruled that the Safe Third Country Agreement between the United States and Canada is invalid because it subjects these asylum seekers to unsafe U.S. detention conditions and an inadequate U.S. asylum system. Under the Safe Third Country Agreement, which was signed in 2002, the U.S. and Canada agreed to require those fleeing persecution to seek asylum in whichever of the two countries they first entered. The asylum seeker involved in the case, who spent substantial time in solitary confinement while seeking asylum in the U.S., described it as “a terrifying, isolating and psychologically traumatizing experience.” Justice Ann McDonald ruled that requiring asylum seekers to endure this treatment violates the Canadian Charter of Rights, which requires adherence to principles of fundamental justice.

The court suspended its judgment for six months to give the Canadian Parliament an opportunity to rescind or modify the Safe Third Country Agreement on its own.

GOVERNMENT REPORTS

There were no immigration-related government reports the week of July 20, 2020.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

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 highlights those families who file tax returns listing both U.S. citizens with Social Security Numbers and family members with Individual Taxpayer Identification Numbers (ITINS) and describes why undocumented spouses may be unable to obtain legal status.

Immigrant Access to COVID-19 Testing and Treatment

This resource describes the particular need for Congress to ensure that all people, regardless of immigration status, have access to COVID-19 testing and treatment. It notes how the pandemic has taken a particular toll on immigrant and non-citizen communities and discusses how recent stimulus bills do not provide full access to testing and treatment.

Trafficking Victims Protection Reauthorization Act Safeguards Children

This blog post explains the Trafficking Victims Protection Reauthorization Act (TVPRA) and how it protects unaccompanied alien children (UACs). It discusses proposals to change the TVPRA and how such modifications would hurt UACs.

* * *

*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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