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Legislative Bulletin – Friday, July 6, 2018

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. Res. 982

A resolution of inquiry requesting the President, and directing the Secretary of Health and Human Services, to transmit, respectively, certain information to the House of Representatives referring to the separation of children from their parents or guardians as a result of the President’s “zero tolerance” policy.

Sponsored by Representative Frank Pallone Jr. (D – New Jersey) (0 cosponsors)

07/03/2018 Introduced in the House by Representative Pallone

07/03/2018 Referred to the Committee on Energy and Commerce

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, July 9, 2018.

The U.S. House of Representatives will be in session from Tuesday, July 10, 2018 through Friday, July 13, 2018.

UPCOMING HEARINGS AND MARKUPS

There are no immigration or skills and workforce related hearings and markups scheduled for the week of Monday, July 9, 2018.

THEMES IN WASHINGTON THIS WEEK

Federal

DOJ Looks to Family Detention Amid Authorities’ Struggle to Reunite Separated Children

In a court filing on June 29, the Department of Justice (DOJ) indicated that it believes it now has the authority to detain families “during the pendency of” their immigration cases, some of which can take months or years to settle, after a federal court in California has enjoined it from separating families at the border.

In accordance with President Trump’s recent executive order which attempted to rely upon family incarceration as an alternative to separating families, DOJ filed a request to modify the Flores settlement to permit it to detain children for longer periods of time than what is currently permitted. However, in light of a recent ruling by U.S. District Court Judge Dana Sabraw that held that separating a child from his or her parents likely violates the due process protections of the Fifth Amendment, the administration is arguing it now is permitted to detain families together without modifying the Flores agreement. It is unclear whether Judge Dolly Gee, who oversees the Flores settlement, will accept that argument, whether Judge Gee will separately approve a modification of Flores or Congress will act to override the Flores settlement entirely.

The June 26 ruling by Judge Sabraw barred family separations going forward and required the administration to reunite families that had already been separated. The order gave the Trump administration until July 10 to comply with his preliminary injunction requiring children under 5 to be reunited with their parents and until July 26 in cases involving older children. According to reports, the immigration officials have been struggling to meet those deadlines to reunite separated children, a number which some reports suggested might be as high as  4,100. Department of Health and Human Services (HHS) Secretary Alex Azar and Office of Refugee Resettlement (ORR) officials have been reviewing cases and claim to know “identity of location of every minor,” but have made “little or no progress” on plans to reunify them before the deadline. The lack of action has led lawmakers to ask for lists of all the children who have been separated, hoping to pressure immigration authorities to speed up the reunification process.

Thousands March in Protests against Family Separation in Cities Across U.S.

On June 30, tens of thousands marched in more than 700 U.S. cities in protest of the Trump administration’s immigration policies that have led to separation of families at the Southern border.A number of emotional speeches and demonstrations from immigrant children and parents garnered support from crowds across the country. Participants sought to encourage the Trump administration to end the “zero tolerance” policy, which has required immigration officers to criminally prosecute all undocumented immigrants apprehended between ports of entry at the border, and swiftly reunite separated families. President Trump responded to the protests by reiterating his support for Immigration and Customs Enforcement (ICE), calling on agents to “not worry or lose your spirit”.

Report: Families Charged Exorbitant Fees to Transport Children from Shelters

According to a New York Times report, families and sponsors of migrant children are being forced to pay hundreds, sometimes even thousands, of dollars in airfare and transportation costs for the release and transportation of children recently detained in immigration facilities. For many of these families, these exorbitant costs are nearly impossible to afford and low-income families’ have been desperately working to raise funds to be reunited and transport their children and other relatives.

Sponsors and family members already face numerous obstacles to endure in order to obtain approval from government authorities to take child out of government custody, including providing extensive documentation that they are able to support the child. Critics have raised concerns about whether the government is creating near-impossible barriers to penalize impacted families.

CBP Arrests Decline in June

According to U.S. Customs and Border Protection (CBP), border arrests dropped 18 percent, from 40,338 apprehensions in May to 34,114 in June after four months of steady increases. While the Trump administration has asserted that he decline is due to the deterrent effect of administration’s enforcement policies – including its controversial “zero tolerance” policy, experts believe that he decline may be largely due to seasonal trends, as hot weather regularly leads to a decline in border crossings during summer months While the decline in border crossings is significant, it is far less of a decline the initial reduction in border crossings during President Trump’s first month in office.

Sessions Rescinds Guidance on Work Authorization for Asylum Seekers and Refugees

On Tuesday, July 3, Attorney General Jeff Sessions rescinded two dozen Department of Justice guidance documents, including two impacting asylum seekers’ and refugees’ ability to obtain work authorization. One of the rescinded documents, originally published in 2014, stated that refugees and asylum seekers would be permitted to work indefinitely and that employers cannot require them to show Department of Homeland Security documents if they had a driver’s license or Social Security card.

The second guidance document, originally published in 2009, promoted non-discrimination among candidates authorized to work in the United States, advising employers to refrain from requiring their employees to be citizens or have a particular immigration status. In rescinding the guidance, Sessions argued that the guidance in question did not go through the formal rulemaking process, including public notice and comment.  According to Sessions’ the rescinded documents were consequently “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” Guidance documents do not carry the force of law, but are instead informal statements published by federal departments.

Report: U.S. Army Is Discharging Immigrant Recruits

According to a July 5 report by the Associated Press, the U.S. army has been quietly discharging reservists and recruits who enlisted in the military trough the Military Accessions Vital to the National Interest (MAVNI) program. While the exact number of discharged soldiers is unknown, immigration lawyers claim to know of at least 40 such cases. Several recruits were not told the reason for their discharge, while others were told they had been labeled as security risks by the Army for having relatives abroad. A number of recruits apparently were discharged after the Defense Department had not managed to finalize their background checks. While the Defense Department promised that all service members with an honorable discharge “protected from deportation,” many of the impacted candidates were had their basic training delayed and are not eligible for an honorable discharge.

Spokespersons for the Department of Defense declined to comment to the AP for the rationale behind the discharges or the extent to the policy change, citing pending litigation.

The MAVNI program recruits qualified noncitizens in the U.S. whose enlistment is vital to the national interest and its purpose is to address critical shortages of medical and strategic language personnel in the U.S. armed services. It was authorized by the secretary of defense in November 2008. An estimated 10,000 immigrants have served in the U.S. military through the MAVI program.

DHS Secretary Nielsen Extends TPS for Current Yemeni Beneficiaries

On July 5, Secretary Kirstjen Nielsen announced the extension of the Temporary Protected Status (TPS) for Yemen, citing the continuation of an armed conflict in the country. The 18-month TPS extension only applies to the 1,250 current Yemeni TPS beneficiaries, who have been in the U.S. since January 4, 2017 and have been continuously physically present since March 4, 2017. Eligible Yemeni TPS recipients will be eligible to re-register for their TPS status and work authorization through March 3, 2020.

The 18-month extension does not redesignate the country for TPS. Therefore, Yemenis who arrived in the U.S. within the last 18 months will not be eligible to apply. Sixty days before the end of this extension, the Secretary will determine whether or not TPS designation will be terminated or extended further for Yemeni recipients.

VOICE Releases First Quarterly Report without Immigrant Crime Statistics

The Victims of Crimes Committed by Removable Aliens (VOICE) released its first quarterly report on the VOICE hotline and the Department of Homeland Security’s Victim Information and Notification Everyday (DHS-VINE) system, covering the time period of April 26, 2017 to September 30, 2017. VOICE and  DHS-VINE were established pursuant toPresident Trump’s January 2017 executive order on interior enforcement. “

Critics noted that the report failed to include statistics about the alleged crimes committed by undocumented perpetrators, and that only a fraction of the calls into the VOICE hotline even related to the reporting of crime.  While the VOICE office purports to be aimed at providing services to victims of crimes committed by undocumented immigrants and the victims’ families, only a fifth of the calls (972 of 4,602) were to report crime, while over half of the calls for (2,515 of the 4,602) were in labeled as “commentary or unrelated.”

Legal

Federal Court Orders Federal Government to Limit Indefinite Detention of Asylum Seekers

On July 2, U.S. District Court Judge James Boasberg from District of Columbia issued a preliminary injunction to limit  the U.S. government from  indefinitely detaining those with legitimate asylum claims. Previously, asylum seekers who could pass a “credible fear” screening indicating that they faced persecution in their home countries, were commonly given humanitarian parole, provided they did not pose a flight risk or pose a danger to the public. Under the Trump administration, parole has been virtually eliminated in key ICE field offices, leading to mass indefinite detention of those with valid asylum claims.

In enjoining the administration from continuing to employ indefinite detention in this manner, Judge Boasberg noted that ICE has been violating its own guidance –  a 2009 directive which states that asylum seekers who pass the “credible fear” screening should not be detained during the asylum process, and ordered a case-by-case review of all asylum seekers requesting parole.

Plaintiffs in the case were represented by attorneys from several  non-profit organizations and law firms and included, among others, a detained Haitian ethics teacher who was beaten for vocalizing opposition to the country’s government and a Honduran fleeing persecution for his sexual orientation. The impact of the case is unclear since the Judge Boasberg’s preliminary injunction order only applies to five ICE offices that were involved in the suit, including Detroit, El Paso, Los Angeles, Newark, and Philadelphia. Moreover, ICE has the power to revoke the 2009 directive or detain asylum seekers at field offices other than the five involved in the suit. Lastly, the directive in general only applies to those who immediately claim asylum when they arrive at an official port of entry, not to people who cross the border illegally.

Federal Judge Declines to Block California Values Act

In a July 5 order, Federal Judge John Mendez declined DOJ’s request for a preliminary injunction to halt the California Values Act, Senate Bill (S.B.) 54, which generally prohibits state and local law enforcement from using either personnel or funds to hold, question or share information about people with federal immigration agents. In a lawsuit on March 7, DOJ challenged three California state laws that it said interfere with the federal government’s ability to enforce immigration laws.

In ruling against the Trump administration, Judge Mendez declined at this time to halt S.B. 54 and Assembly Bill (A.B.) 103, which creates a state-run inspection and review of facilities that detain immigrants on behalf of the federal government which includes state-run facilities. Mendez did agree to block a part of a third challenged bill, A.B. 450, which prevents private employers from voluntarily cooperating with federal immigration authorities.

In rejecting DOJ’s effort to block the California Values Act, Judge Mendez, an appointee of President George W. Bush, emphasized that California has broad discretion over how it wants to direct its resources towards immigration enforcement, and noted that “Refusing to help is not the same as impeding.” Judge Mendez also determined that S.B. 54 did not violate 8 U.S.C. 1373, a provision of federal law that only governs the sharing of records “strictly pertaining to immigration status.”

The ruling was seen as a victory for California, although Judge Mendez may revisit the legality of the laws at a later stage of the case. California officials hailed the ruling, including California Attorney General Xavier, who said, “The right of states to determine how to provide public safety and general welfare to their people continues to stand strong.”

GOVERNMENT REPORTS

Congressional Research Service (CRS): A Primer on U.S. Immigration Policy, June 22, 2018 (by William A. Kandel)

This report is a broad overview of U.S. immigration policy. It addresses policies governing how foreign nationals enter the U.S. either to reside permanently or temporarily, including visa issuance and security, forms of quasi-legal status, and naturalization. The report also discusses enforcement policies both for excluding foreign nationals from admission into the U.S., as well as for detaining and removing those who enter the country without proper documents or commit crimes that make them deportable. Lastly, it examines policies for unauthorized immigrants in the United States.

Congressional Research Service (CRS): An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, June 25, 2018 (by Hillel R. Smith)

This report provides an overview of the existing laws governing the detention and removal process for immigrants. It summarizes information about expedited removal and special rules on treatment of unaccompanied immigrant children. It also contains a comparison table on laws governing the exclusion and removal of immigrants.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Family Separation at the U.S.-Mexico Border

This fact sheet provides an overview of the issue of family separation at the Southern border, including information on whether family separation is required by law (it is not) and on the Department of Justice’s (DOJ) “zero-tolerance policy” to prosecute all individuals crossing the U.S. border between ports of entry without authorization.

Infographic: Alternatives to Detention

This infographic shows that Alternatives to Detention (ATDs) represent a fraction of the cost of immigration detention, while continuing to ensure that more than 95 percent of individuals on ATDs attend required immigration court hearings and/or appointments.

Comparison of Family Separation Bills in the U.S. Senate and in the U.S. House of Representatives

These documents provide an overview of the different legislative proposals in the U.S. Senate and in the U.S. House of Representatives to end family detention, including whether the bills would result in the incarceration of families, establish a reunification process for separated children and parents, and modify the Flores Settlement Agreement, among other provisions.

* * *

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

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