Legislative Bulletin — Friday, July 8, 2022

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. 4460

Eradicating Narcotic Drugs and Formulating Effective New Tools to Address National Yearly Losses of Life Act (END FENTANYL Act)

The bill would require the CBP Commissioner to review and update the policies and manuals of the Office of Field Operations to enhance inspection practices at ports of entry to prevent the trafficking of drugs and humans.

Sponsored by Senator Rick Scott (R-Florida) (3 cosponsors— 2 Democrats 1, Republican)

06/23/2022 Introduced in the Senate by Senator Scott

06/23/2022 Referred to the Senate Committee on Homeland Security and Governmental Affairs

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, July 11, 2022.

The U.S. House of Representatives will be in session from Tuesday, July 12, through Friday, July 15, 2022.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings scheduled for the week of Monday, July 11, 2022.

THEMES IN WASHINGTON THIS WEEK

Legal

Fifth Circuit Hears Oral Arguments on DACA Case

On July 6, the Fifth Circuit Court of Appeals heard oral arguments on Texas et al. v. USA, a case concerning the legality of the Deferred Action for Childhood Arrivals (DACA) program, which provides protections for certain young undocumented immigrants who were brought to the U.S. as children. The case could impact over 611,000 DACA recipients who rely on the program, and many others who may be eligible for protections. During oral arguments, the court focused on the issue of the plaintiff states’ standing to bring the suit. Texas — the state leading Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia in their collective challenge against the program’s legality — argued that its expenditures on DACA recipients placed an undue burden on the state. In defense of DACA, the Justice Department asserted that Texas had failed to establish standing and that Texas’s alleged injury was too speculative. Also speaking in support of DACA, the New Jersey Acting Attorney General Matthew Platkin questioned Texas’s decision to challenge the program years after the policy was issued and argued that eliminating the program would greatly disrupt the lives of DACA recipients, employers, their citizen children, and states.

The case stems from a July 16, 2021 ruling from District Court Judge Andrew Hanen in which he held that DACA was unlawful, granted a permanent injunction vacating the original 2012 DACA memorandum, and prevented USCIS from approving new DACA applications. However, noting the reliance interest of current DACA recipients, Judge Hanen temporarily stayed the injunction for those who had DACA protections at the time of the ruling, allowing them to continue to receive and renew protections.

In addition to appealing the decision to the Fifth Circuit, DHS has also proceeded with rulemaking to formalize DACA, an effort to satisfy the procedural objections raised by Judge Hanen. The proposed rule to preserve DACA was published in the Federal Register in September 2021. It is anticipated that a final rule may be published in the summer of 2022.

Fifth Circuit Upholds Court Order Vacating DHS’s Immigration Enforcement Priorities

On July 7, the Fifth Circuit refused to grant a stay of a lower court’s order that blocked the Biden administration’s immigration enforcement guidelines. The guidelines attempted to re-prioritize enforcement efforts to focus on immigrants who are deemed national security threats, those who recently crossed the border unlawfully, and those who have been convicted of aggravated felonies or other violent crimes. In the view of the Fifth Circuit, the administration’s appeal is unlikely to be successful because the immigration enforcement guidelines conflict with federal statutes, are arbitrary and capricious, and their promulgation was procedurally invalid.

The decision stems from an April 6 lawsuit that Texas and Louisiana filed against the federal government’s enforcement guidelines. The Biden administration argued that limited resources require prioritizing certain enforcement actions, and that the use of discretion and prioritization is both common and necessary across law enforcement agencies. But on June 10, a federal judge in Texas judge sided with the states, arguing that while the federal government has case-by-case discretion, DHS policy binds officials in a “generalized, prospective manner.” The Biden administration appealed the ruling and requested a stay while the appeal was underway.

The Fifth Circuit’s rejection of the stay request conflicts with a July 6 ruling in the Sixth Circuit, which rejected a similar injunction by an Ohio judge in a suit that also concerned the administration’s enforcement guidelines.

Federal

Refugee Resettlement Rises in June, Although Administration Still on Track to Fall Well Below Resettlement Goals

Refugee resettlement data released on July 5 by the State Department revealed the administration resettled a total of 2,457 refugees in June, which represents a 29% increase from the 1,898 resettled in May. Following three months of declining numbers, June marked the highest resettlement total of any month in FY 2022 so far. With just three months left in the fiscal year, the current resettlement pace would lead to a total of only 20,133 total refugees resettled in FY 2022 — still far below the ceiling the administration set at 125,000. These low totals come as the UNHCR estimates a record 2 million refugees most in need of resettlement worldwide.

June’s resettlement increase was driven largely by a sharp uptick in refugees from the Democratic Republic of the Congo. The U.S. resettled 808 Congolese refugees in June, a 103% increase from 398 in May and by far the highest resettlement total of any country of origin this month. The released data also revealed that the U.S. resettled only 142 Ukrainians in June, up from 77 in May but still not making a significant impact on the administration’s pledge of welcoming 100,000 Ukrainians fleeing the Russian invasion. Instead, the Uniting for Ukraine parole program has received over 66,000 applications in about two months, and over 41,000 have already been approved.

The June resettlement data also reveals that 1,262 Special Immigrant Visas (SIVs) were granted to Afghans in June, a 91% increase from the 629 granted in May.

MPP Remains in Place After SCOTUS Allowed Biden Administration to Terminate the Program

On July 3, only three days after the Supreme Court ruled the Biden administration can lawfully end the Migrant Protection Protocols (MPP) — also known as the “Remain in Mexico” program — Secretary of Homeland Security Alejandro Mayorkas said that the policy would remain in place until the ruling is officially in effect. He stated that while MPP has “endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border,” the administration must wait until it was legally permissible to terminate the program. In the administration’s opinion, it is required to wait a few more weeks to lawfully end the program while the Supreme Court’s decision is formally communicated to the lower court in Texas which issued an injunction against ending the policy.

President Biden to Host Mexico’s President López Obrador to Discuss Migration, Other Issues

On July 12, President Biden will host Mexico’s President Andrés Manuel López Obrador for a bilateral meeting at the White House to discuss a number of joint efforts to address regional challenges, including migration. The meeting will happen amid record-high encounters of migrants at the U.S.-Mexico border, a majority of them Mexican. According to a June 24 press release from the Mexican government, high-level negotiations are ongoing between the United States and Mexico to expand the number of H-2B seasonal nonagricultural visas and enhance the process of H-2A seasonal agricultural visas for Mexicans and Central Americans. In addition, the press release highlights that Mexico and the United States are exploring policies to strengthen Mexicans’ labor rights and protect children in a situation of mobility.

State & Local

Texas Governor Abbott Orders State Authorities to Apprehend Undocumented Immigrants and Return Them to Ports of Entry at the Border

On July 7, Governor Greg Abbott (R-Texas) signed an executive order that authorizes the Texas National Guard and the Texas Department of Public Safety to apprehend immigrants who cross the border irregularly between ports of entry or commit other violations of federal law, and return them to the border at a port of entry.

Immigration advocates and legal scholars have raised concerns over the legality of the executive order and reiterated that immigration enforcement is the sole responsibility of the federal government. Also, in response to the executive order, the Mexican government expressed its opposition to the measure and stated that the order “can only be understood as part of the electoral campaigns in Texas.”

The executive order came after a group of county officials in South Texas urged Governor Abbott to declare an “invasion” under the Texas and United States constitutions and begin using state resources to expel migrants. The power to deport individuals lies within the exclusive authority of the federal government.

Biden Administration Challenges Arizona’s Proof-of-Citizenship Voter Law

On July 5, the Justice Department filed a lawsuit against the state of Arizona over legislation that requires voters to show proof of citizenship when casting a presidential ballot in person or by mail. The bill also requires that registration forms include a person’s place of birth, which critics believe is immaterial to establishing whether a voter is a U.S. citizen. State Republican lawmakers passed the bill along party lines and Governor Doug Ducey (R-Arizona) signed it into law on March 30. The new law, House Bill 2492, is set to take effect at the end of the year and requires that county officials reject voting applications that do not include citizenship documents. Critics of the bill argue that the new measure could disenfranchise tens of thousands of voters.

In the lawsuit, the Justice Department said the bill “turns back the clock” on voting rights by imposing unnecessary requirements to produce documents demonstrating citizenship. Kristen Clark, head of the Justice Department’s civil rights division, called the bill a “textbook violation” of the 1993 National Voter Registration Act, which established a voter-registration form that requires people to attest under penalty of perjury that they are U.S. citizens. That process was upheld by the Supreme Court in 2013, which rejected a similar attempt by the state of Arizona to impose proof of citizenship requirements for federal elections. The Justice Department further argues the law violates the 1964 Civil Rights Act because it requires election officials to reject registration forms based on errors and omissions that are unrelated to a voter’s ability to cast a ballot.

Biden Administration Deploys Surveillance Blimp at the Arizona Border with Mexico

On June 28, U.S. Customs and Border Protection (CBP) started using an aerostatic surveillance balloon at the U.S.-Mexico border at Nogales, Arizona. The blimp, which has day and night-vision cameras and can reach up to 3,000 feet, will be used “to maintain visual awareness of border activity for longer periods of time” according to CBP officials. The blimp, however, raised privacy concerns from local residents in Nogales who worry that the federal government will have the capacity to monitor their daily activities. In response to the concerns, a CBP spokesperson stressed that “the technology will not be oriented in such a way as to monitor the activities occurring outside of the immediate areas of the border.” The federal government has used aerostatic blimps to monitor the border since 2013, but this is the first in eastern Arizona.

GOVERNMENT REPORTS

Department of Homeland Security Office of Inspector General (DHS-OIG); “Violations of ICE Detention Standards at Folkston Processing Center and Folkston Annex;” June 30, 2022

This OIG report highlights that U.S. Immigration and Customs Enforcement’s (ICE) Folkston Processing Center (Folkston) in Georgia does not meet standards for facility conditions, medical care, grievances, segregation, staff-detainee communications, and handling of detainee property. The report reveals that Folkston is unsanitary and dilapidated, with torn mattresses, water leaks and standing water, mold growth and water damage, rundown showers, mold and debris in the ventilation system, insect infestations, lack of access to hot showers, inoperable toilets, and an absence of hot meals. The report also notes that Folkston does not provide timely or complete responses to detainee grievances and requests. Folkston also fails to consistently provide required services to detainees in segregation and inappropriately handcuffed detainees. In addition, medical staff at Folkston does not provide timely access to specialty care or adequate mental health care for detainees. The report notes that all these violations have compromised the health, safety, and rights of detainees.

Congressional Research Service (CRS); “U.S. Immigration Courts: Access to Counsel in Removal Proceedings and Legal Access Programs;” July 6, 2022

This CRS report provides an overview of the right to access counsel in removal proceedings before U.S. immigration courts. The report highlights that while the federal government cannot provide counsel, respondents must have the option to seek counsel at their own expense or pro bono.

Department of Homeland Security’s Office of the Citizenship and Immigration Services (CIS) Ombudsman; “Annual Report 2022“; June 30, 2022.

This report provides recommendations for creating a more effective and efficient system to better assist individuals and employers applying for immigration benefits at U.S. Citizenship and Immigration Services (USCIS). This year’s report contains an overview of the CIS Ombudsman’s mission and services, USCIS’s programmatic and policy challenges during 2021 and early 2022, and a detailed discussion of pervasive problems, recommendations, and best practices in the administration of our immigration laws. members.

Department of Homeland Security Office of Inspector General (DHS-OIG); “CBP Complied with Facial Recognition Policies to Identify International Travelers at Airports;” July 5, 2022

This OIG report highlights that from May 2019 to September 2021, CBP used facial biometric technology deployed at airports to process 51.1 million international travelers entering the United States. The report notes that in that period, CBP identified 39 impostors attempting entry into the country.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Infographic: What You Need to Know About the Great Replacement Theory

This infographic is designed to help anyone understand what this “great replacement” theory is, where it came from, and how it is being used today. It also explores the implications of its growing popularity, and how we can fight back against its spread.

The Current State of DACA: Challenges Await in Litigation and Rulemaking

This explainer describes the current state of the Deferred Action for Childhood Arrivals (DACA) program, discussing the ongoing attempts to scale back or end the program in the courts and the current administration’s attempts to preserve the program.

Explainer: The Migrant Protection Protocols

This explainer describes the history and elements of the Migrant Protection Protocols (MPP), commonly known as the Remain-in-Mexico program. Under MPP, certain migrants seeking asylum at the U.S.-Mexico border were returned to Mexico after making an asylum claim in the U.S. and expected to wait near the border for the duration of their immigration proceedings.

* * *

*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. Arturo can be reached at acastellanos@immigrationforum.org. Thank you.

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