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Legislative Bulletin — Friday, July 28, 2023

Welcome to the National Immigration Forum’s weekly bulletin! Every Friday, our policy team rounds up key developments around immigration policy in Washington and across the country. The bulletin includes items on the legislative, executive, and judicial branches, as well as some coverage at the state and local levels.

A note: as Congress goes on recess, the bulletin is taking a little breather, too. We’ll be back on Thursday, August 10, and again on Thursday, August 24.

Here’s a breakdown of the bulletin’s sections:

DEVELOPMENTS IN IMMIGRATION THIS WEEK

BILLS INTRODUCED AND CONSIDERED

LEGISLATIVE FLOOR CALENDAR

UPCOMING HEARINGS AND MARKUPS

GOVERNMENT REPORTS

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

DEVELOPMENTS IN IMMIGRATION THIS WEEK

Immigration policy is a dynamic field subject to constant change. Here, we summarize some of the most important recent developments in immigration policy on the federal, legal, state, and local levels. 

Content warning: This section sometimes includes events and information that can prove disturbing. 

Legal 

Judge Rules Against Biden Administration’s Asylum Restrictions 

On July 25, a federal judge ruled that the “Circumvention of Lawful Pathways” rule —  the Biden administration’s controversial post-Title 42 asylum restrictions at the southern border — is “both substantively and procedurally invalid.” 

United States District Judge Jon S. Tigar from the Northern District of California granted a motion for summary judgment blocking the immigration policy, implemented in May. But he stayed his order to vacate the rule for 14 days, while the federal government appeals to the Ninth Circuit in an effort to keep the restrictions in place. 

The “Circumvention of Lawful Pathways” rule renders migrants ineligible for asylum at the U.S.-Mexico border unless they can meet limited exceptions, such as pre-scheduling an appointment via an official government app to enter the U.S. at a port of entry, or applying for and being denied protection elsewhere on the way here. 

But these few exceptions for migrants to still access the U.S.’s asylum system despite the new rule often carry significant barriers and risks that for many will prove difficult if not impossible to overcome, undermining their long-established legal rights to seek asylum. 

“The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum,” Tigar wrote in his decision. 

“The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

In addition, Tigar concluded that the federal regulation is arbitrary and capricious for multiple reasons, including migrants’ unwontedly narrow access to exceptions to its presumption of asylum ineligibility.

Despite the ruling, federal spokespeople have said that they remain sure of the “Circumvention of Lawful Pathways” rule’s legality, and that operationally, it is still “in full effect” regardless of any misinformation that may spread to migrants. 

“It does not limit our ability to deliver consequences for unlawful entry,” Homeland Security Secretary Alejandro Mayorkas said. “Do not believe the lies of smugglers.”

Justice Department Sues Texas Over Floating Barriers in Rio Grande  

On July 24, the Justice Department filed a lawsuit against Texas and Texas Gov. Greg Abbott (R) to challenge the state’s use of large floating barriers in the Rio Grande as a deterrent to keep migrants from crossing over into the U.S. irregularly. 

At issue is whether Abbott violated federal law with his string of bright orange buoys, which the Justice Department alleges he installed without first receiving a necessary permit from the U.S. Army Corps of Engineers. 

The lawsuit portrays the floating barriers as “an unauthorized obstruction to the navigable capacity of waters of the United States,” according to CNN

“We allege that Texas has flouted federal law by installing a barrier in the Rio Grande without obtaining the required federal authorization,” Associate Attorney General Vanita Gupta said in a statement

“This floating barrier poses threats to navigation and public safety and presents humanitarian concerns. Additionally, the presence of the floating barrier has prompted diplomatic protests by Mexico and risks damaging US foreign policy.”

Last week, the Justice Department had notified Texas of its intent to sue over the barriers unless the state removed them proactively. Abbott responded Monday with a letter to President Joe Biden, reiterating his intent to assert Texas’s “sovereign interest”at its border and accusing Biden of “open-border policies.” 

“Texas will see you in court, Mr. President,” Abbott wrote. 

Amid this aggressive strategy at the border, Texas also continues to send buses of migrants to Los Angeles, with the fifth bus since June 14 arriving downtown last Saturday. Migrant passengers are reportedly from nations all over the world, including Brazil, Chile, China, Colombia, Guatemala, Haiti, Honduras, and Venezuela. 

Los Angeles is working with its departments, the county, faith partners, and nonprofits to respond.

We do not want to play politics with people’s lives,” said the L.A. Welcome Collective, a group of faith and immigrant rights stakeholders. “We will strive to do everything possible to maximize our limited resources until the busing of migrants stops or until we as a nation find a way to fix and improve a broken immigration system.”

Federal

Secretary Mayorkas Testifies for House Judiciary Committee

On July 26, Homeland Security Secretary Alejandro Mayorkas encountered fierce opposition from House Republicans as they scrutinized the Biden administration’s immigration policies and accused him of neglecting his duties to secure the southern border. 

Mayorkas testified for a hearing, conducted by the House Judiciary Committee, that was in part standard oversight by Congress. But the public-facing event also gave some GOP members who have been pushing to impeach Mayorkas for months a closely watched venue to advance that agenda. 

Mayorkas defended the Department of Homeland Security’s (DHS) approach, praising the work of its roughly 260,000 employees who have faced serious operational and humanitarian challenges at the southern border and nationwide. He argued that current strategies for managing the borders securely and humanely within a flawed immigration system are still effective. 

Meanwhile, a number of Republicans focused on the issue of fentanyl coming into the U.S., accusing Mayorkas of complicity for the increasing number of overdose deaths in American communities. 

“The fentanyl killing thousands of Americans every year is a direct result of your dereliction. When people die of fentanyl poisoning, it is your fault,” said Rep. Ken Buck (R-Colorado). 

Mayorkas defended his department’s success in blocking nearly 10,000 pounds of fentanyl from reaching the U.S. last year, resulting in over 280 arrests. 

Regardless, some appealed for impeachment. 

“Secretary Mayorkas, you must resign. Will you resign?” asked Rep. Jeff Van Drew (R-New Jersey). 

Mayorkas responded in the negative. 

That “leaves us with no other option,” Van Drew said. “You should be impeached.”

USCIS Announces Unusual Second H-1B Lottery for FY 2023 Applications

On July 27, U.S. Citizenship and Immigration Services (USCIS) announced the agency will hold a second lottery for H-1B visas, which allows high-skilled professionals from abroad to work in the United States. USCIS said the second lottery — which will consider applicants rejected during the first round —  was necessary to reach the congressionally mandated 85,000 H-1B visa cap, including 65,000 for regular H-1B visas and 20,000 reserved for applicants with an advanced U.S. degree.

The brief and unusual announcement – which did not mention the remaining number of H-1B visas – generated speculation over the reasons for a second lottery. Shortly after this year’s H-1B lottery, held in March, a report from the Wall Street Journal revealed that companies had colluded to cheat the system by entering the same applicants multiple times in order to increase their prospective hires’ chances of winning a visa.

The H-1B program has maintained a limit of 85,000 visas per year since 2004, despite the U.S. economy doubling in size since then. And USCIS data show that over 75% of registrations would have been rejected due to the low annual limit, even if those with duplicate registrations were excluded from the lottery.

Senate Passes NDAA, Afghan Adjustment Act Not Included

The U.S. Senate passed its version of the National Defense Authorization Act (NDAA) (S. 2226) on July 27 by an 86 to 11 vote. The bill authorizes up to $886 billion in military spending for fiscal year (FY) 2024.

 Senate Majority Leader Chuck Schumer (D-New York) locked in an agreement to finish consideration of the bill before the August recess, leading to the bill’s passage without significant hurdles. The Senate NDAA will need to be reconciled with the version passed by the House on July 14, which includes a number of controversial provisions. 

Several offices introduced immigration-related amendments to the Senate NDAA, but none made it to the Senate floor for consideration this week. For example, Sen. Amy Klobuchar (D-Minnesota) introduced an amendment to include the Afghan Adjustment Act (AAA), a bill to provide stability and security for the U.S.’s Afghan allies, including many of those evacuated during the Afghan withdrawal nearly two years ago. The amendment was not brought up for a vote despite a concerted effort to include it in the bill; however, a version of the AAA could still be included in the final NDAA through the conference process between the House and the Senate later this year.

Other immigration-related amendments to the NDAA that did not receive a vote include a bipartisan amendment by Sen. Mike Rounds (R-South Dakota) to allow DACA recipients and other Dreamers to enlist in the military.

Child From Guatemala Dies in Poultry Plant Accident

On July 14, a 16-year-old boy originally from Guatemala died in a workplace accident at a Mar-Jac Poultry processing plant in Mississippi, around six years after his family immigrated to the U.S.

Duvan Tomas Perez was cleaning one of the machines at the Hattiesburg facility when he got trapped in it, the New York Times reported. 

Another worker on shift heard the boy call out in distress, according to NBC News. “Two times he began to scream, ‘Help! Help!’” the worker said.

“I knew he had died.”

Because of the nature of poultry plants, children under 18 are not legally permitted to work there. But while the Mar-Jac plant admitted Duvan “should not have been hired,” it said that an “unprecedentedly tight labor market” had forced the poultry processor to use staffing companies that were tasked in part with verifying work qualifications. 

“It appears, at this point in the investigation, that this individual’s age and identity were misrepresented on the paperwork,” Mar-Jac Poultry said.

Federal officials at the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division are investigating the death — one in a number of relatively recent fatalities at the Mar-Jac plant. 

“Workers are put in these conditions that are truly deplorable,” Immigrant Alliance for Justice and Equity (IAJE) spokesperson Jess Manrriquez told NPR. “We’ve been hearing from folks on the ground that there is a lot of child labor that is happening at that poultry plant, so there’s a lot that needs to be investigated. But right now, we just want to help the family through this process.”

A family member remembered Duvan as “generous, smiley and very fun.”

The tragic incident follows a number of high-profile exposés detailing a deeply disturbing and dangerous underground economy of migrant child labor exploitation across the U.S., and it coincides with a general uptick in child labor violations over the last year.

Report: Immigrants Suffer Pattern of Sexual Abuse in ICE Custody

On July 21, Futuro Investigates published a report detailing official records and testimonies that reveal a concerning pattern of “detention officers, contractual guards, and ICE employees [who] are accused of sexually assaulting the individuals they are meant to protect.”

The investigation analyzes 308 sexual assault and sexual abuse complaints in U.S. Immigration and Customs Enforcement (ICE) facilities, most of which seemingly triggered no action. 

In one instance, a woman said that a guard who sexually assaulted her told her she could “go free if she had something to do with him,” but otherwise she would be deported. Other survivors also said their perpetrators threatened them with immigration consequences.

The report documents harrowing sexual assaults during what should have been routine medical check-ups, gropings, and invasive pat-downs. 

BILLS INTRODUCED AND CONSIDERED

It can be challenging to keep up with the constant barrage of proposed legislation in Congress. So, every week, we round up new bills. This list includes federal legislative proposals that have recently been introduced and that are relevant to immigration policy. 

Please follow this link to find new relevant bills, as well as proposed legislation from past weeks.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will not be in session from Monday, July 31 to Friday, August 4, 2023.

UPCOMING HEARINGS AND MARKUPS

Here, we round up congressional hearings and markups happening in the field or in Washington. 

There are no hearings or markups relevant to immigration policy announced for the week of Monday, July 31, 2023. 

GOVERNMENT REPORTS

Reports by bodies such as the U.S. Government Accountability Office, the Congressional Research Service, and the Department of Homeland Security’s Office of Inspector General provide invaluable information on immigration policy and practice. Here, we give brief summaries of new immigration-related reports, with links to the resources themselves in case you want to learn more. 

Department of Homeland Security Office of Inspector General (OIG); ICE Should Improve Controls to Restrict Unauthorized Access to Its Systems and Information; Published July 19, 2023

This report finds that U.S. Immigration and Customs Enforcement (ICE) “did not consistently implement effective access controls to restrict access to its network and information technology (IT) systems” — and that the agency did not implement certain security settings despite known risks.

Department of Homeland Security Office of Inspector General (OIG); DHS Components Did Not Always Adhere to Internal Control Policies and Procedures for Ensuring That Bankcard Program Spending Limits Are Established Based on Procurement Needs; July 21, 2023

This report examines the Department of Homeland Security’s (DHS) adherence to current policies around Bankcard Program spending limits and makes recommendations for better oversight.

The U.S. Government Accountability Office (GAO); DHS Should Strengthen Use of Force Data Collection and Analysis; Published July 24, 2023 

This report explores the Department of Homeland Security’s (DHS) use of force policies, highlighting DHS’s lack of a plan to analyze its own data around use of force. 

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

The Forum is constantly publishing new policy-focused resources that engage with some of the most topical issues around immigration today. Here are a few that are particularly relevant this week: 

Bill Summary: The Afghan Adjustment Act of 2023

The Afghan Adjustment Act (AAA) of 2023, S.2327/H.R.4627, is a bipartisan bill that would provide a path to permanent status to tens of thousands of Afghans who were evacuated to the U.S. following the fall of Kabul in August 2021.

Explainer: The Replicability of the TN Visa to Tackle Labor Shortages

This explainer explores the history of the TN visa program and other similar visa categories, highlights its potential to alleviate America’s labor deficit, and suggests creating similar visas for nationals of allied countries of the United States.

Bill Analysis: Protect Vulnerable Immigrant Youth Act

This bill analysis details the Protect Vulnerable Immigrant Youth Act, which would eliminate employment-based visa caps on abused, abandoned, and neglected immigrant children, known as Special Immigrant Juveniles (SIJ).

* * *

*This Bulletin is not intended to be comprehensive. Please contact Alexandra Villarreal, Policy and Advocacy Associate at the National Immigration Forum, with comments and suggestions of additional items to be included. Alexandra can be reached at avillarreal@immigrationforum.org. Thank you.

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