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Legislative Bulletin – Friday, June 29, 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

S. 3125

A Bill to Modify the H-2B Nonimmigrant Returning Worker Exemption

Sponsored by Senator Mike Rounds (R – South Dakota) (0 cosponsors)

06/25/2018 Introduced in the Senate by Senator Rounds

06/25/2018 Referred to the Senate Committee on the Judiciary

H.R. 6136

Border Security and Immigration Reform Act of 2018

The bill would remove protections for migrant children and allow them to be incarcerated for longer periods of time, reduce legal immigration to the U.S., add border security measures (including funding of almost $25 billion), increase interior immigration enforcement, and provide some Dreamers and certain children of immigrants with work visas with a path to U.S. Citizenship, among other provisions.

Sponsored by Representative Bob Goodlatte (R – Virginia) (10 cosponsors – 10 Republicans, 0 Democrats)

06/19/2018 Introduced in the House by Representative Goodlatte

06/19/2018 Referred to the House Committees on the Judiciary, Homeland Security, Agriculture, Natural Resources, Transportation and Infrastructure, Ways and Means, Energy and Commerce, Armed Services, Foreign Affairs, the Budget, and Oversight and Government Reform

06/20/2018 Reported by the House Rules Committee and sent to the House floor

06/27/2018 Voted in the House, failed by a 121 – 301 vote

H.R. 6204

A Bill to Clarify Standards of Family Detention and the Treatment of Unaccompanied Alien Children, and for Other Purposes

Sponsored by Representative Pete Sessions (R – Texas) (5 cosponsors – 5 Republicans, 0 Democrats)

06/22/2018 Introduced in the House by Representative Sessions

06/22/2018 Referred to the House Committees on the Judiciary and Foreign Affairs

H.R. 6222

Better Care for Kids Act

This bill would require additional training for federal personnel who care for separated children.

Sponsored by Representative Grace Meng (D – New York) (3 cosponsors – 0 Republicans, 3 Democrats)

06/26/2018 Introduced in the House by Representative Meng

06/26/2018 Referred to the House Committee on the Judiciary

H.R. 6223

Child Advocate Program Reauthorization Act

The bill would reauthorize the Child Advocate Program, which appoints independent child advocates for vulnerable unaccompanied immigrant children and child trafficking victims.

Sponsored by Representative Grace Meng (D – New York) (3 cosponsors – 0 Republicans, 3 Democrats)

06/26/2018 Introduced in the House by Representative Meng

06/26/2018 Referred to the House Committee on the Judiciary

H.R. 6232

A Bill to Limit the Separation of Families Including an Individual with a Developmental Disability at or near Ports of Entry 

This bill would prevent people with intellectual disabilities from being separated from their families at the border.

Sponsored by Representative Sean Maloney (D – New York) (11 cosponsors – 0 Republicans, 11 Democrats)

06/26/2018 Introduced in the House by Representative Maloney

06/26/2018 Referred to the House Committees on the Judiciary and Homeland Security

H.R. 6236

Family Unity Rights and Protection Act

The bill would require government agencies to reunify children separated from their parents at the border, establish a family registry to aid in reuniting children and their parents, and require parental notification regarding the process and procedure for the return of their children, among other provisions.

Sponsored by Representative Karen Bass (D – California) (53 cosponsors – 0 Republicans, 53 Democrats)

06/27/2018 Introduced in the House by Representative Bass

06/27/2018 Referred to the House Committees on the Judiciary, Ways and Means, and Armed Services

H.R. 6254

Compassionate Calling and Immigrant Family Reunification Act of 2018

This bill would direct the Federal Communications Commission (FCC) to reinstate the inmate calling order – which includes immigration detention facilities – to ensure lower calling service rates and direct the Trump administration to ensure immigrant parents can call their separated children without charge.

Sponsored by Representative Frank Pallone (D – New Jersey) (18 cosponsors – 0 Republicans, 18 Democrats)

06/27/2018 Introduced in the House by Representative Pallone

06/27/2018 Referred to the House Committee on Energy and Commerce

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will not be in session on the week of Monday, July 2, 2018.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups scheduled for the week of Monday, July 2, 2018.

THEMES IN WASHINGTON THIS WEEK

Legal

Supreme Court Upholds President Trump’s Travel Ban

On June 26, the U.S. Supreme Court ruled 5 to 4 in favor of President Trump’s travel ban that blocks individuals from six Muslim-majority nations, as well those from North Korea and certain government officials from Venezuela, from entering the U.S. In the court’s majority opinion, Chief Justice John Roberts noted that the president has the broad statutory authority to indefinitely suspend legal entry under a federal immigration statute that “exudes deference to the president in every clause.” In addition, the court found that the administration articulated a rational basis for the travel ban, having provided more detail and justification than prior instances when presidents exercised authority to suspend the entry of certain individuals.

The majority opinion referenced various negative statements directed at Muslims made by President Trump, but determined that the president’s broad authority in this area and the absence of explicit reference to religion in the ban meant that it was supportable on the national security rationale offered by the administration.  The Trump administration argued during oral arguments that the travel ban is important for national security, but immigration advocates and other critics noted that the ban discriminated against individuals based on religion.

In her dissenting opinion that was joined by Justice Ruther Bader Ginsburg, Justice Sonya Sotomayor warned that “History will not look kindly on the court’s misguided decision today, nor should it,” and compared the decision to the infamous 1944 Korematsu v. United States decision, which upheld the constitutionality of World War II-era Japanese internment. Sotomayor noted that “based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” rendering it invalid. Justices Stephen Breyer and Elena Kagan dissented separately, more narrowly objecting to the administration’s failure to grant a sufficient number of waivers or exemptions under the waiver process provided under the ban.

Responding to criticism from Sotomayor’s dissent, Chief Justice Roberts’ majority opinion differentiated the travel ban from Japanese internment while acknowledging the Supreme Court’s mistake on Korematsu. Stating that Korematsu was “gravely wrong the day it was decided…[and] has not placed in law under the Constitution,” the majority formally overturned Korematsu.

President Trump applauded the court’s decision on the travel ban, calling the ruling “a moment of profound vindication.” However, immigration advocates and other critics noted that even though the travel ban is found to be constitutional, it may still defy American values and is not the right policy to pursue in terms of the economy and national security.

The six Muslim-majority countries affected by the latest iteration of the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Judge Orders Separated Children to be Reunited with Parents

A federal judge in California issued a preliminary injunction on June 26 that directs the Trump administration to reunite all children separated from their parents at the border. U.S. District Court Judge Dana Sabraw’s preliminary injunction requires that children younger than five be reunited with their parents within 14 days and older children within 30 days. The preliminary injunction also directs the government to allow parents to call their children within ten days if they are not already in touch with their children. Judge Sabraw stated that the circumstance of the government’s family separation practice, “belie measured and ordered governance, which is central to the concept of due process.” She found that the government could not satisfy the requirements of due process when it separated children from their parents.

On June 27, U.S. District Judge Paul Crotty in New York granted a preliminary injunction ending a policy blamed for excessively long detention of some immigrant children. The policy required Office of Refugee Resettlement (ORR) Director Scott Lloyd to personally review and approve the release of immigrant children in ORR custody who are or had been detained in heightened supervision. The court found that the policy brought “suffering and irreparable injury” to the plaintiffs due to prolonged detention and ordered ORR to abandon the policy.

On the same day, D.C.-based District Judge Paul Friedman ordered the federal government to provide more answers and information within a week about the status of the children of three Central American parents who filed a lawsuit on June 19. The court ordered the government to provide an estimated date of when the parents will be reunited with their children and allow more frequent communication between the parents and their children.

In addition to the recent court decisions, 17 states have joined together to file a lawsuit against the Trump administration in an attempt to end family separation.

Seventh Circuit Narrows Scope of Injunction against Grant Conditions for Sanctuary Jurisdictions

On June 26, the U.S. Court of Appeals for the Seventh Circuit temporarily narrowed the scope of the nationwide injunction barring the Trump administration from attaching new grant conditions to federal law enforcement grants in an effort to cut federal funding to so-called sanctuary jurisdictions. The injunction will be limited to apply to Chicago until the full Seventh Circuit, sitting en banc, determines whether or not the injunction should apply nationwide. Oral arguments on the issue are scheduled for September 6.

Previously, in April, two judges of a three-judge Seventh Circuit panel ruled in favor of upholding the nationwide injunction barring Attorney General Jeff Sessions from attaching new grant conditions, with a dissenting judge stating that he would have limited the decision to apply only to Chicago. On June 4, the full U.S. Court of Appeals for the Seventh Circuit agreed to the Justice Department’s request to consider whether it was appropriate to have a nationwide injunction in place or whether the injunction should solely cover Chicago. In evaluating the proper scope of the injunction, the court will not be revisiting the three-judge panel’s ruling upholding a federal district court’s decision barring the Justice Department from creating new grant conditions.

Federal

CBP Suspends Family Separations at the Border, Detaining Families

Kevin McAleenan, Commissioner of U.S. Customs and Border Protection (CBP), announced on June 25 that CBP has temporarily suspended referring immigrant parents crossing the U.S. border with their children for criminal prosecution, potentially stopping most cases of family separation at the border. McAleenan said CBP would continue to refer single adults for prosecution for crossing the U.S. border without documentation. He suggested CBP and the Department of Justice (DOJ) should agree on a policy “where [parents]…can be prosecuted without an extended separation from their children.”

Although CBP’s policy did not retroactively affect the families and 2,053 children who have already been separated from their parents and sent to detention centers across the country – some as far away from the border as Michigan and Maryland – a federal court ordered the government on June 26 to reunite all separated children with their parents within 30 days. Yet, concerns continue that the government lacks a clear plan to reunify children with their parents.

Details continued to emerge over the week about the effects of separating children from their parents. In some cases, parents were left to choose between pursuing asylum or choosing deportation so that they could more quickly be reunited with their children. A statement signed by hundreds of physicians and medical experts warned about the effects of separation and detention on children, such as long-term mental and physical illnesses and developmental delays.

The Trump administration plans to reunify parents and their children while holding them together in detention also received criticism. Law enforcement leaders weighed in to express concern about family detention, with a group of more than 50 urging the administration to consider alternatives to family detention, which prove more cost efficient than immigration detention.

Meanwhile, the issue of family separation continued to draw strong interest this week. A group key House Democrats called for a Department of Justice-Office of Inspector General investigation into administration’s policies that led to family separation and its efforts at reunification. On June 28, advocates organized a march that led up to a sit-in on Capitol Hill and nearly 575 arrests of peaceful protesters. In addition, thousands are expected to rally and march on June 30 in Washington, D.C. and 200 cities across the U.S. as part of the “Families Belong Together” campaign.

Republican Bill to Protect Dreamers, Expand Immigration Enforcement Fails in the House

A bill crafted by House Republican leaders failed by a 121 to 301 vote on June 27, with 112 Republicans and all Democrats voting against the legislation. The bill was originally scheduled for a vote on June 21, but was delayed one week after Republican leaders argued that they needed the additional time to give more lawmakers a chance to review the bill and help build support for the measure. Over the course of the week, House Republicans met to try to create a compromise that would add mandatory E-verify and agricultural guest worker provisions to the bill to build support for the legislation, but that effort failed. Eventually, the bill was brought to the House floor without any new additions. President Trump issued a last-minute tweet in support of the legislation, stating that passage would show “[Republicans] want strong border and security.” Last week, the House rejected Representative Bob Goodlatte’s (R-Virginia) restrictionist Securing America Future’s (SAF) Act  by a 193 to 231 vote.

The Border Security and Immigration Reform Act of 2018, the product of negotiations between House GOP leaders,  Freedom Caucus members and moderate House Republicans, would have created a new points-based pathway to citizenship that allow a minority of Dreamers – only 18 percent by one estimate – and some children of legal immigrant workers to get permanent residency and eventually U.S. citizenship. House Republicans also touted the bill as ending family separation at the border, but critics noted that it would merely take steps to expand family detention indefinitely. The bill also included almost $25 billion for border security, increased immigration enforcement, reduced legal immigration levels, and made it hard for asylum seekers to request asylum.

Following the bill’s failure, House Republican leaders are reportedly planning votes in July on two more narrow bills that would address family separation at the border, which would potentially include reforms to the asylum process, and a measure mandating E-Verify plus expanding an agriculture guest-worker program.

President Trump Calls for Depriving Immigrants of Due Process Rights

On June 24, President Trump called for depriving undocumented immigrants in the U.S. of due process rights, stating that undocumented immigrants must be immediately deported “with no Judges or Court Cases” and labeling America’s immigration laws as a “mockery.” President Trump’s comments came after he signed an executive order addressing family separations, which he reportedly expressed regrets about signing.

Although President Trump’s comments questioned due process rights for non-citizens, legal experts note that the Supreme Court has long held in rulings that non-citizens have constitutional rights, including the right to a fair hearing in court White House Press Secretary Sarah Huckabee Sanders argued that “just because you don’t see a judge, doesn’t mean you are not receiving due process.”

Although critics have called President Trump’s call to end due process for migrants unconstitutional, the existing process of expedited removal in immigration law could allow the Trump administration to increase the number of people it may deport without an immigration court hearing. Currently, federal guidance permits undocumented immigrants apprehended within 100 miles of the Canadian or Mexico borders that cannot prove they have lived in the U.S. for more than two weeks to be deported without an immigration court hearing. But immigration statutes provide that expedited removal could be extended to any undocumented immigrant in the U.S. who cannot prove he or she has lived in the U.S. for more than two years, although the constitutionality of applying expedited removal that broadly has yet to be tested in the courts.

ICE Officials Say Agency’s Policies Hurt Investigations

In a letter to Department of Homeland Secretary (DHS) Secretary Kirstjen Nielsen last week, nineteen special agents in charge of regional offices for Homeland Security Investigations (HSI) asked that their division be separated from Immigration and Customs Enforcement (ICE). The officials note that ICE’s detention and deportation policies have made it hard for HSI to conduct investigations into threats to national security, organized crime, narcotics smuggling and human trafficking. In the letter, the agents note that, “the perception of HSI’s investigative independence is unnecessarily impacted by the political nature” of ICE’s immigration enforcement and has resulted in “HSI’s investigations [being] perceived as targeting undocumented immigrants instead of the transnational criminal organization that facilitate cross border crimes.” The letter also notes that, on three occasions since 2011, DHS has shifted HSI funding to ICE to cover the cost of immigration enforcement, including $34.5 million in fiscal year (FY) 2016.

The letter comes as ICE has increasingly come under fire for its role in implementing President Trump’s immigration enforcement priorities, including ramping up enforcement and removal operations against non-criminal immigrants.

Report: DOJ Considers Barring Illegal Entrants from Getting Asylum

According to a Vox.com report, the Department of Justice (DOJ) is reportedly developing a proposed rule that would overhaul America’s asylum policy by preventing illegal entrants from obtaining asylum. The policy, which would be in tension with federal statutes and treaty obligations, would apply to people who entered the U.S. without documentation between ports of entry and were later prosecuted for illegal entry. The proposed rule would also codify an immigration court opinion written by Attorney General Jeff Sessions in June that limited access to asylum for victims of gang and domestic violence. The proposed rule, which has not yet been finalized, would be published in the Federal Register when completed and subject to public comment for 90 days.

The proposed regulation would make all individuals who were criminally prosecuted for illegal entry or re-entry ineligible for asylum. Together with the Trump administration’s “zero-tolerance” policy to criminally prosecute all undocumented immigrants apprehended between ports of entry – even those who are seeking asylum – the rule would significantly restrict access to asylum in the U.S. Immigration advocates note that not all asylum seekers have the option of reporting themselves to immigration authorities at ports of entry, because smugglers often prevent them from coming to the U.S. through that avenue.

The regulation would also narrow the definition of “particular social group,” which allows certain individuals to base their asylum claims on domestic and gang violence in their home countries. Under the rule, interpersonal violence and crime victimization would no longer be a valid foundation for membership in a “social group” unless such violence is being perpetuated on a national level. The regulation would require applicants to prove that the group also was persecuting other individuals on the same basis.

Finally, the draft regulation would withhold “favorable discretion” from migrants who had spent more than two weeks in another country or who traveled through more than one country during their journey to the U.S. This change would prevent many, if not most, Central Americans travelling through Mexico from obtaining asylum, as they would be required to first ask for refuge in Mexico. If enacted and not struck down by the courts, the rule would make it more difficult, if not impossible, for most of the Central Americans families and children currently seeking asylum at the U.S. border to qualify.

Justice Anthony Kennedy Announces Retirement

Following the completion of the Supreme Court’s term, Justice Anthony Kennedy announced on June 27 in a letter to the White House that he intends to retire on July 31, 2018. Justice Kennedy, 81, appointed to the Supreme Court by President Ronald Reagan in 1988, served on the Court for 30 years. The conservative-leaning justice has regularly been seen as the Court’s swing vote, including on issues related to civil rights and immigration.

Given Kennedy’s pivotal role on the Court, the vacancy is likely to spark a fierce partisan battle leading up to November’s midterm elections. Senate Majority Leader Mitch McConnell (R-Kentucky) has stated his intention to have the Senate vote to confirm a replacement this fall. Democratic leaders have called on McConnell to delay any votes until 2019, highlighting McConnell’s refusal to hold election year hearings and votes on Judge Merrick Garland in 2016. Following Justice Kennedy’s announcement, President Trump said the process to replace Justice Kennedy will begin “immediately” and he is reportedly planning to choose a nominee before leaving for Europe on July 10.

State and Local

Texas County Terminates Contract with ICE on Hutto Detention Center

On June 26, Williamson County, Texas commissioners voted 4 to 1 to terminate the county’s contract with U.S. Customs and Immigration Enforcement (ICE) on the T. Don Hutto Residential Center, an immigration detention facility for women in Taylor, Texas. The county also voted 4 to 1 to terminate its contract with CoreCivic, the private prison company that manages the detention facility.

The Hutto detention center, which opened in 2006, previously held families in immigration detention and currently holds about 500 women, including an estimated 35 to 40 mothers recently separated from their children at the border. The facility has been the subject of numerous allegations of sexual assault. The county’s vote does not mean the facility will close or that the women detained in the facility will be released, since the federal government or private owners can decide to keep the facility open. Rather, the decision gives ICE six months to renegotiate a new agreement with the county.

Before the vote, more than 150 people, including faith leaders, filled the courtroom to express support for cancelling the contract. The county’s contract with ICE will terminate on January 31, 2019.

Skills and Workforce Development

Senate HELP Committee Approves Perkins CTE Reauthorization

The Senate Committee on Health, Education, Labor and Pensions (HELP) unanimously approved on June 26 the reauthorization of the Carl D. Perkins Career and Technical Education (CTE) program. Perkins CTE is a primary federal funding source for high school, college and university CTE programs that are critical for preparing youth and adults, including immigrants, for jobs in local and regional economies. The Senate bill reauthorizing Perkins CTE, called the Strengthening Career and Technical Education for the 21st Century Act, would allow states to establish goals for their CTE programs without approval of the Department of Education Secretary. The House version of the bill passed the lower chamber with broad bipartisan support in summer 2017.

GOVERNMENT REPORTS

U.S. Department of State: Trafficking in Persons Report 2018, June 2018

This annual report ranks national governments on their perceived efforts to acknowledge and combat human trafficking. This year, the report includes a section on the detrimental effects of separating children from their parents. The report warns, “Children in institutional care, including government-run facilities, can be easy targets for traffickers” and “even at their best, residential institutions are unable to meet a child’s need for emotional support that is typically received from family members.”

Office of the Inspector General (OIG): ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, June 26, 2018 (by John V. Kelly, Acting Inspector General)

This report details inspections of conditions within Immigration and Customs Enforcement (ICE) detention facilities. The investigation determined that inspections and onsite monitoring have failed to ensure compliance with detention standards. Due to their inconsistency, the OIG determined thatthe inspections do not ensure adequate oversight or systemic improvements, with some deficiencies left unaddressed for years.

U.S. Government Accountability Office (GAO): U.S. Customs and Border Protection: Progress and Challenges in Recruiting, Hiring, and Retaining Law Enforcement Personnel, June 27, 2018

The report examines U.S. Customs and Border Protection’s (CBP) recruitment efforts for law enforcement positions across its components, including the Office of Field Operations (OFO) and the Border Patrol. The report finds that CBP improved its hiring process and demonstrated improvement on two key metrics: reducing its time-to-hire, especially for Border Patrol agents, and increasing the percentage of applicants that are hired.

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.

Fact Sheet: What is the Perkins CTE, and How Does it Serve Immigrants?

This fact sheet provides an analysis of the Perkins Act, the main federal funding source for career and technical education (CTE) programs, and examines how immigrants gain from programs funded by the Perkins CTE.

* * *

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

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