Legislative Bulletin – Friday, July 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. 4345

Protecting America from Spies Act

The bill would amend the Immigration and Nationality Act such that noncitizen individuals would not be admissible to the United States if there is reason to believe they have or will engage in activity that violates U.S. law relating to espionage or the export of goods, technology, or sensitive information. The bill would also apply to spouses and children of those rendered inadmissible under the act.

Sponsored by Senator Ted Cruz (R-Texas) (3 cosponsors – 3 Republicans, 0 Democrats)

07/28/2020 Introduced in the Senate by Senator Cruz

07/28/2020 Referred to the Senate Committee on the Judiciary

S. 4320

Coronavirus Response Additional Supplemental Appropriations Act

The bill is one part of a broader coronavirus relief package introduced as multiple bills and proposals by Senate Republicans, the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act. The bill would allocate federal money for a number of federal agencies that are experiencing financial difficulties during the COVID-19 pandemic. The bill would provide $1.6 billion to Customs and Border Protection (CBP) and $425 million for Consular and Border Security Programs administered by the State Department. The bill would also provide a $1.222 billion loan to U.S. Citizenship and Immigration Services (USCIS), to be repaid via a 10% increase on processing fees. The bill also includes funds to “backfill” money previously allocated to the military which has been transferred to fund the construction of barriers on the U.S.-Mexico border.

Sponsored by Senator Richard Shelby (R-Alabama) (0 cosponsors)

07/27/2020 Introduced in the Senate by Senator Shelby

07/27/2020 Referred to the Senate Committee on Appropriations

S. 4324

Restoring Critical Supply Chains and Intellectual Property Act

The bill is one part of the broader coronavirus relief package introduced by Senate Republicans, the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act. The bill would supply additional funding in an attempt to shift production of critical medical supplies from China to the United States. The bill would amend the Immigration and Nationality Act such that noncitizen individuals would not be admissible to the United States for a number of reasons related to their past involvement or potential future involvement in espionage or information and intellectual property theft.

Introduced by Senator Lindsey Graham (R-South Carolina) (3 cosponsors – 3 Republicans, 0 Democrats)

07/27/2020 Introduced in the Senate by Senator Graham

07/27/2020 Referred to the Senate Committee on Finance

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of August 3, 2020.

UPCOMING HEARINGS AND MARKUPS

Oversight of DHS Personnel Deployments to Recent Protests

Date: August 6, 2020 at 10 am E.T. (U.S. Senate Committee on Homeland Security and Governmental Affairs)

Location: Senate Dirksen Building, SD-342

Witnesses: TBD

THEMES IN WASHINGTON THIS WEEK

Federal

President Trump Issues Memorandum Limiting DACA, Denying New Applicants

On July 28, the Trump administration issued a memorandum indicating that it is making changes to Deferred Action for Childhood Arrivals (DACA), no longer accepting new applications and only allowing existing DACA recipients to renew their protections for one year. The memo from acting DHS secretary Chad Wolf also indicated that the administration is evaluating the program to consider whether to terminate it entirely, taking into account considerations highlighted in the recent Supreme Court ruling allowing DACA to continue.

The memo comes less than two weeks after a federal judge in Maryland ordered the administration to begin accepting new DACA applications in accordance with the Supreme Court ruling. The Trump administration had failed to process new applicants in the wake of the Supreme Court decision, representing that it was putting new applications into a “pending” bucket while deciding what to do with DACA. As a result of the July 28 memorandum, new applicants will continue to be unable to access protection under DACA.

The administration announced the memorandum would remain in effect while it reviews the Supreme Court ruling and conducts a comprehensive review of DACA. The administration has repeatedly maintained that DACA is both illegal and bad policy. These public statements continued after the Supreme Court decision, when U.S. Citizenship and Immigration Services (USCIS) deputy director for policy Joseph Edlow criticized the decision as having “no basis in law,” and acting DHS Secretary Wolf and DHS senior official Ken Cuccinelli called DACA “unlawful” and “illegal,” respectively.

Limiting DACA protections to one year in length could impose significant costs on recipients, who now need to pay the $495 renewal fee annually. Advocates for Dreamers have called the memo “cruel” and stated that, “the administration is slowly dismantling the program.” Others noted the continuing uncertainty faced by DACA recipients as a result of the memo and called on Congress to enact a permanent legislative solution.

According to various estimates, between 66,000 and 300,000 individuals who would be eligible to apply for DACA for the first time are unable to apply as a result of the memo.

Senate COVID-19 Stimulus Proposal Includes – and Omits – Key Immigration Provisions

On July 27, Senate Republicans released a series of bills and plans representing their proposal for the next COVID-19 relief package, the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act.

Relevant to immigration, proposed legislation compromising the HEALS Act would provide $1.6 billion in funding for Customs and Border Protection (CBP) and $425 million for State Department Consular and Border Security Programs to make up for funds lost during the pandemic. It also includes a $1.222 billion loan to U.S. Citizenship and Immigration Services (USCIS), which had previously announced a significant financial shortfall and currently has massive furloughs set to begin on August 31. While CBP and the State Department are fully funded under the proposal, the USCIS loan would require a 10% fee surcharge on all immigration processing and application fees in order for the agency to repay the funds.

The bill also includes military funding that would backfill Department of Defense (DOD) funds that were transferred for the construction of physical barriers on the U.S.-Mexico border. The bill also incorporates immigration provisions related to IP theft and espionage, modifying grounds for noncitizen inadmissibility to include those who are suspected of current or future involvement in relevant crimes.

The proposal also omits several key immigration-related provisions that were part of negotiations leading up to the release of the bill, including some with Republican support. The bill does not include a provision providing relief to many U.S. citizens in mixed status families, despite support for such a proposal from Senators Marco Rubio (R-Florida), Thom Tillis (R-North Carolina) and Bill Cassidy (R-Louisiana). Mixed status families, including millions of U.S. citizens, were cut out from COVID-19 stimulus checks under the previous relief package. The HEALS Act also does not include a provision that would expedite processing of immigrant healthcare workers, currently in the green card backlog, to enable them to fill critical work shortages and participate in the COVID-19 response. Such a measure has bipartisan support in the Senate, with 17 Republicans and 18 Democrats co-sponsoring the proposal.

The proposal is likely to be the subject of extensive negotiation in coming weeks, as Senate Republicans try to reach agreement with Democrats in the House of Representatives and the White House on a relief bill.

ICE Continues to Detain Families After Deadline for Children’s Release Passes  

As of July 28, Immigration and Customs Enforcement are still holding approximately 100 immigrant children in family detention centers across the U.S., past the extended deadline set by a federal judge for their release. Citing the coronavirus, Judge Dolly Gee ruled on July 16 that all children held for over 20 days in the three Immigration and Customs Enforcement (ICE) family detention facilities must be released by July 27. This deadline represented a ten-day extension from the Judge’s initial deadline which had been set for July 17.

Judge Gee oversees the 1997 Flores settlement agreement, which controls how the federal government must treat detained immigrant children, but she does not have jurisdiction over the adults in custody in the family detention facilities.

On July 25, Judge Gee denied the administration’s request for a second extension, stating that her order is now “unenforceable,” given that the conditions necessary for releasing the children have not been met. The judge listed three unmet conditions, any one of which would result in the children’s release. First, ICE has refused to allow the release of parents together with their children, as has been standard procedure in past administrations. Second, another federal judge with jurisdiction over the parents in the case did not order the parents release, which would force ICE to release the families together. Third, the parents have not given consent to be separated from their children.

The administration is attempting to negotiate with lawyers representing the children to develop a permanent procedure to enforce Judge Gee’s order, offering parents the option to either agree to be separated from their children or waiving the Flores rights of the children to be released.  The families’ representatives have thus far been reluctant to agree to this arrangement, which would result in a “binary choice” for parents between family separation and indefinite detention in facilities rife with COVID-19. Advocates have said that, “the very act of presenting families in prison together with this question is cruel.”

ICE has not commented on the passing deadline but said that lawyers for both sides are preparing to provide an update to Judge Gee on the state of negotiations.

U.S. Won’t Deport Children Discovered Detained in Hotels

On July 27, the Trump administration said it would not be summarily expelling 17 migrant children and families who had been discovered detained in a Texas hotel. The children will instead be allowed to stay in the U.S. and seek asylum or other protective status. The move comes after a July 22 report that ICE has been using a private contractor to secretly detain young children in hotels in Texas and Arizona, preparing to deport them. The July 27 agreement only applies to the 17 individuals who had been discovered detained in a Hampton Inn in McAllen, Texas, and the administration has not said it will stop contracting with hotels to detain migrant children. The hotels have reportedly been used hundreds of times by ICE, even as 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, the administration has been summarily expelling these children without first determining whether they are fleeing persecution or violence under a March 20 Centers for Disease Control and Prevention (CDC) rule. The hotel detention is part of the administration’s efforts to continue these rapid deportations under the CDC rule, which have thus far resulted in the summary expulsion of over 2,000 unaccompanied children. The 17 individuals discovered in McAllen have now been transferred to ORR shelters and family detention facilities.

In response to the initial July 22 report, Hilton released a statement on July 24 announcing that, “this is not activity that we support or in any way want associated with our hotels.” The statement further notes that the Hampton Inn in McAllen has cancelled its contract with ICE. Separately, on July 29, a Hampton Inn in Phoenix stated that it would end its own contract with ICE to house detained migrants.

Legal

Judge Issues Temporary Injunction Against Public Charge Rule

On July 29, a federal judge in New York granted a nationwide temporary injunction on the Trump administration’s public charge rule. The judge’s ruling suspends the eligibility requirements for green card applicants that were introduced last year, on the grounds that the rule could prove to be dangerous in light of the ongoing coronavirus pandemic.

The public charge rule would allow the government to deny permanent residency to green card applicants who rely on social services, including Medicaid and food stamps, as their primary means of financial support. The ruling stated that “any policy that deters residents from seeking testing and treatment for COVID-19 increases the risk of infection for such residents and the public.” U.S. Citizenship and Immigration Services (USCIS) had published an alert assuring that medical treatment related to COVID-19 would not result in the denial of status under the public charge rule. Still, advocates have expressed concerns that even with the limited exceptions in place, the presence of the rule could result in immigrant communities broadly refraining from accessing medical care during the pandemic out of fear they would lose out on access to status in the future.

Federal Judge Rejects Restriction on CARES Funding for Immigrant Students

On July 24, a U.S. District Judge in Massachusetts issued a preliminary injunction stating that the Department of Education could not deny funding from the CARES Act COVID-19 relief package to a student based on her immigration status. The student, Farah Noerand, came from Haiti in 2010 and holds temporary protected status (TPS).

The Department of Education argued that only students who are eligible for Title IV federally funded financial aid qualify for CARES Act emergency relief funding. Title IV prevents noncitizens, including TPS and DACA recipients, from accessing certain funds. However, the judge found that the CARES Act “unambiguously authorized the provision of funds . . . to students without regard to their immigration status.” Currently, the injunction applies only to Noerand, but the judge is considering expanding it to all students in similar circumstances. The Department of Education has until August 7 to submit a brief arguing why the preliminary injunction should not be expanded.

State and Local

VA Governor and Senators Request Federal Assistance for Coronavirus Outbreak at Farmville Immigration Detention Center

In a July 22 letter, Governor Ralph Northam (D-Virginia), Senator Mark Warner (D-Virginia, and Tim Kaine (D-Virginia) requested CDC intervention to help stem a large-scale COVID-19 outbreak at an immigration detention center in Farmville, Virginia. According to recent ICE data, as of July 23, there were 290 confirmed cases of COVID-19 in the facility, representing 75% of the detained population there. The CDC has yet to indicate whether it will deploy personnel to the facility.

In a lawsuit filed by immigration advocates relating to the conditions in the privately-run Farmville detention center, plaintiffs assert that the outbreak is the result of a transfer of 74 detainees from Florida and Arizona in June without testing them for the virus, in violation of ICE policy. The sending facilities have both experienced coronavirus outbreaks and 51 of the transferees have subsequently tested positive for COVID-19. The outbreak is now the largest in any such facility in the country.

GOVERNMENT REPORTS

Department of Homeland Security Office of Inspector General (OIG): CBP Needs a Comprehensive Process for Conducting Covert Testing and Resolving Vulnerabilities (REDACTED), July 28, 2020

This report is an OIG audit of the effectiveness of Customs and Border Protection (CBP) covert testing, which is designed to identify vulnerabilities at ports of entry and borders. In these tests, CBP’s Operational Field Testing Division (OFTD) staff act as role players and attempt to penetrate security systems at ports of entry or other border checkpoints. The report found that CBP does not adequately plan covert tests or effectively act on and distribute the results of such tests. The report further stated that CBP also does not effectively ensure data reliability or compliance with security requirements for the covert tests, and it made a series of recommendations for CBP to strengthen its covert testing protocols.

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

Dreamer Advocacy Resources

This web page includes resources to help advocate for a permanent solution for Dreamers, including talking points, data on the economic benefits of Dreamers, and summaries of key legislation pending in Congress.

Bill Summary: The Hong Kong Safe Harbor Act

This bill summary describes the provisions of the Hong Kong Safe Harbor Act (S.4110), which would offer refuge to residents of Hong Kong facing politically-motivated persecution due to their involvement in the Hong Kong protest movement by designating them as refugees of special humanitarian concern.

* * *

*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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