Legislative Bulletin — Friday, June 4, 2021

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.R. 3557

The Homeland Security Improvement Act

The bill establishes new oversight of the U.S. Department of Homeland Security (DHS) by creating an ombudsman office to focus on border and immigration issues, forming a commission to investigate the treatment of migrants along the Southern border, and requiring Border Patrol agents to use body-worn cameras, among other provisions.

Sponsored by Representative Veronica Escobar (D-Texas) (2 cosponsors — 2 Democrats, 0 Republicans)

05/28/2021 Introduced in the House by Representative Escobar

05/28/2021 Referred to the House Committees on Homeland Security, Ways and Means, and on the Judiciary

H.R. 3621

The Neighbors Not Enemies Act

The bill would repeal the Alien Enemies Act of 1798, which would allow the President of the United States to apprehend, restrain, secure, and remove foreign nationals without due process while America is at war. The Alien Enemies Act is one of the four Alien and Sedition Acts signed into law by President John Adams in 1798.

Sponsored by Representative Ilhan Omar (D-Minnesota) (40 cosponsors — 40 Democrats, 0 Republicans)

05/28/2021 Introduced in the House by Representative Omar

05/28/2201 Referred to the House Committee on the Judiciary

H.R. 3634

The Taiwan Diplomatic Review Act

The bill would institute a number of reforms regarding the United States’ relationship with Taiwan, including creating a new visa category that can be used by Taiwanese officials and diplomats.

Sponsored by Representative Brad Sherman (D-California) (5 cosponsors — 3 Republicans, 2 Democrats)

05/28/2021 Introduced in the House by Representative Sherman

05/28/2021 Referred to the House Committees on Foreign Affairs and on the Judiciary.

H.R. 3648

The Equal Access to Green cards for Legal Employment (EAGLE) Act

The bill would equalize the green card backlog by phasing out categorical per-country caps for employment-based visas and raising per-country caps for family-based visas. The bill also includes several reforms to the H-1B visa application process and would provide additional flexibility for those currently in the green card backlog.

Sponsored by Representative Zoe Lofgren (D-California) (19 cosponsors — 16 Democrats, 3 Republicans)

06/01/2021 Introduced in the House by Representative Lofgren

06/01/2021 Referred to the House Committee on the Judiciary

H.R. 3659

Migrant Resettlement Transparency Act

The bill would require the Secretary of Health and Human Services (HHS) and Secretary of Homeland Security (DHS) to consult with state and local officials before resettling, transporting, and relocating migrants in their jurisdictions. The bill is a companion to S. 1865.

Sponsored by Representative Chuck Fleischmann (R-Tennessee) (0 cosponsors)

06/01/2021 Introduced in the House by Representative Fleischmann

06/02/2021 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, June 7, 2021.

The House of Representatives will not be in session the week of Monday, June 7, 2021.

UPCOMING HEARINGS AND MARKUPS

Hearings to Examine Proposed Budget Estimates and Justification for Fiscal Year 2022 for the Department of Health and Human Services

Date: Wednesday, June 9, 2021 at 10:00 am ET (Senate Appropriations Committee)

Location: Dirksen Senate Office Building SD-124

Witnesses:

Xavier Becerra, Secretary, Department of Health and Human Services

A Humane Response: Prioritizing the Well-Being of Unaccompanied Children

Date: Wednesday, June 9, 2021 at 11:30am ET (House Committee on Energy and Commerce)

Location: Virtual

Witnesses: TBA

Unaccompanied Children at the Border: Federal Response and the Way Forward

Date: Thursday, June 10, 2021 at 2:00pm ET (House Homeland Security Committee)

Location: Virtual

Witnesses:

David Shahoulian, Assistant Secretary, Border Security and Immigration, U.S. Department of Homeland Security

Benjamine Huffman, Executive Assistant Commissioner, Enterprise Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security

Katherine D. Dueholm, Acting Deputy Assistant Secretary for Western Hemisphere Affairs, U.S. Department of State

Patrick J Lechleitner, Acting Executive Associate Director, Homeland Security Investigations, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security

THEMES IN WASHINGTON THIS WEEK

Federal

Abbott Attempts to Prevent Texas Shelters from Housing Thousands of Unaccompanied Migrant Children

In a May 31 declaration, Governor Greg Abbott (R-Texas) instructed the state Department of Public Safety (DPS) to revoke the licenses of shelters housing unaccompanied migrant children who have recently arrived at the U.S.-Mexico border seeking protection. The order could lead to the closure of over 50 state-licensed shelters and displace more than 4,000 children, who would likely be transferred to unlicensed emergency shelters as they wait to be reunited with family or other sponsors in the United States.

The declaration requires shelters to wind down contracts with the Department of Health and Human Services (HHS) to house migrant children by the end of August. An HHS spokesperson responded to the order by stating that the department is assessing the governor’s declaration but that it had no plans to close any facilities.

Abbott justified the action in the form of a disaster declaration, in which he wrote that the recent increase in migration at the Texas-Mexico border “poses an ongoing and imminent threat of widespread and severe damage, injury, and loss of life and property.”

Immigrant advocates have expressed concern about the potential impact of the declaration, warning that it may result in more children held in inadequate conditions in unlicensed emergency shelters. “Texas-based shelters comprise a significant portion of U.S. capacity, this order could do real damage, and to the serious detriment of children’s well-being,” said Krish O’Mara Vignarajah, head of Lutheran Immigration and Refugee Service.

As of June 2, approximately 17,000 migrant children were being in HHS custody. As of May 13, approximately 37% of the children in HHS custody were held in licensed shelters, and 63% were held in unlicensed emergency shelters.

White House Plans Significant Asylum Changes

According to a May 28 report, the Biden administration is planning significant reforms to the U.S. asylum system in order to expedite the lengthy backlog of asylum cases. According to the report, the plan involves streamlining the asylum process at the U.S.-Mexico border by allowing U.S. Citizenship and Immigration Services (USCIS) asylum officers to adjudicate a portion of the cases of newly arriving asylum seekers. Asylum officers already adjudicate thousands of “affirmative” asylum cases each year, made by those who are already in the U.S. and not in removal proceedings. The process would include multiple appeal stages and applicants would also be eligible for other forms of humanitarian protection beyond asylum status. The plan estimates the USCIS asylum officers could adjudicate approximately 300,000 cases each year.

In addition to the planned changes, according to a May 30 report, the White House is also considering re-implementing a rapid adjudication process known as “expedited removal” for arriving migrant families. Under expedited removal, certain migrants may be deported in as little as a single day without a hearing before an immigration judge. While the administration is not currently using expedited removal for arriving migrants, many arriving migrant families — including those seeking humanitarian protection — continue to be rapidly expelled under a pandemic-era rule called Title 42.

The immigration court backlog currently sits at over 1.3 million cases, and asylum seekers are left in limbo for an average of over three years before their cases are decided.

Biden Plan for Reforming Legal Immigration System Leaked

On May 31, the New York Times obtained a draft blueprint of President Biden’s plans to expand the U.S. legal immigration system. The leaked document—titled “D.H.S. Plan to Restore Trust in Our Legal Immigration System”— reportedly lists a series of initiatives intended to rebuild immigration levels. In addition to proactive measures, the document calls for the reversal of several Trump administration policies that have significantly hindered legal immigrants.

According to the New York Times, the blueprint includes proposals that would bolster the ability of high-skilled workers, international entrepreneurs, trafficking victims, families of Americans living abroad, refugees, asylum-seekers, and farmworkers to immigrate legally to the U.S. The blueprint also highlights strategies to tackle backlogs in the system, such as increasing the availability of virtual interviews and electronic filing and limiting requests for evidence from applicants.

Most of the initiatives described in the report can be accomplished via administrative action and would not require Congress to act.

Biden Administration Formally Terminates Migrant Protection Protocols

On June 1, the Biden administration officially ended the Migrant Protection Protocols (MPP), a policy from the Trump administration that left thousands of asylum seekers stranded in Mexico while awaiting their court cases. President Biden ordered a pause on the program shortly after taking office to allow the administration time to review it.

After his review, Department of Homeland Security (DHS) secretary Alejandro Mayorkas determined that in addition to resulting in significant humanitarian concerns, the use of MPP did not “adequately or sustainably enhance border security.”

Starting February 19, the administration had already begun slowly processing into the U.S. the 25,000 individuals who were waiting in Mexico under MPP and who still had open asylum cases. Over 11,000 migrants have been allowed to continue their asylum claims from within the U.S. under this process.

Administration Releases 2022 Budget Request with Border, Immigration Enforcement Priorities

On May 28, the Biden administration submitted a funding request for Fiscal Year (FY) 2022 to Congress. The $6 trillion budget plan — which includes a number of immigration-related items — provides Congress with the administration’s priorities and expands on a “skinny budget” proposal that was submitted on April 9.

The budget contains several provisions concerning the U.S.-Mexico border, including $3.3 billion to care for arriving unaccompanied migrant children, and additional funds to boost staffing and capacity to process and adjudicate asylum claims and to assist in reuniting migrant families who were separated under the Trump administration. The budget also includes $1.2 billion in border security infrastructure, but it does not include any money for additional physical border barriers. The budget also includes $345 million allocated for USCIS to address asylum, naturalization, and other legal immigration backlogs, and $660 million for CBP to modernize ports of entry.

The overall budget for the Department of Homeland Security (DHS) calls for $52.2 billion in funding, which would fund the agency at the same level as FY 2021. While Immigration and Customs Enforcement (ICE) detentions and deportations have declined significantly in the first months of Biden’s presidency, the budget does not call for significant changes to ICE funding levels. The request includes funding for 32,500 detention beds, just 1,500 fewer than was allocated for FY 2021.

Bipartisan Group of Lawmakers Visit Border, Tout Solutions

On June 2, a bipartisan group of four lawmakers visited the Texas-Mexico border and spoke with local officials and law enforcement officers. During the visit, the group toured the Donna Temporary Processing Center in the Rio Grande Valley, where a record number of unaccompanied migrant children have been processed in recent months. The group also toured the McAllen-Hidalgo International Bridge, a local port of entry into the U.S.

The lawmakers included Senators John Cornyn (R-Texas) and Kyrsten Sinema (D-Arizona), as well as Representatives Henry Cuellar (D-Texas) and Tony Gonzalez (R-Texas). The four lawmakers are the original cosponsors of the Bipartisan Border Solutions Act, legislation introduced in April which aims to streamline border and asylum processing and improve access to legal services for arriving migrants.

In a joint press conference following the border visit, the lawmakers touted the benefits of the legislation. Senator Cornyn said, “We simply want to make sure that people who do have legitimate claims for asylum can get in front of a judge.” The group also called for the full re-opening of international bridges to trade and commerce, noting the economic benefits to border communities.

USCIS Reaches Supplemental H-2B Cap for Returning Workers

On June 3, U.S. Citizenship and Immigration Services (USCIS) announced it had received enough petitions to fill the 16,000 supplemental H-2B seasonal nonagricultural work visa slots that had been added to the existing ceiling for the second half of Fiscal Year (FY) 2021. In April, USCIS announced it would raise the H-2B ceiling by 22,000 to help meet workforce needs, allocating 16,000 visas for returning workers and an additional 6,000 visas for workers from the Northern Triangle countries of Guatemala, Honduras, and El Salvador.

In the June 3 announcement, USCIS encouraged employers still in need of labor to refile for workers from the Northern Triangle, as that supplemental allocation has not yet been reached.

The annual H-2B ceiling starts at 66,000 total visas, 33,000 for those starting positions from October through March, and 33,000 for those starting positions from April through September. However, despite strict qualification requirements, visa demand often far outstrips supply, and Congress regularly permits the administration to raise the cap by as much as 64,000 in annual appropriations bills.

The H-2B visa program is used by a wide range of U.S. employers who have temporary work needs, including those in the landscaping, forestry, tourism, hospitality, food processing, and construction industries. In order to be approved by the Department of Labor, prospective H-2B employers must prove that no U.S. workers are available to take the job, and they must offer wages comparable to what U.S. workers might be paid.

Legal

Ninth Circuit Rules Immigration Judges Can Reopen Cases of Deported Immigrants

On June 2, the Ninth Circuit Court of Appeals ruled that immigration judges can reopen certain cases for immigrants who are no longer in the country because they have already been deported or left voluntarily.

The case concerned Jaime Balerio Rubalcaba, a man who was deported to Mexico in 1995. Upon returning to the U.S., Rubalcaba may have been eligible for legal status through a family-based visa pathway, but he could not access it with a closed removal order already on his record. He encouraged an immigration judge to reopen his case “sua sponte” — or without a formal request — so that he could apply for adjustment of status.

The three-judge panel ruled in favor of Rubalcaba, finding that sua sponte reopening is designed to provide judges “flexibility in truly unusual cases,” and therefore these cases should not be subject to the “departure bar” that generally blocks the reopening of cases of deported immigrants.

The Ninth Circuit’s ruling represents a circuit split on the issue, as the Tenth Circuit previously came to a similar finding, but the Second, Third, and Fifth Circuits previously ruled against sua sponte reopenings in these circumstances.

Supreme Court Rules Against Presumption in Favor of Immigrants

On June 1, the Supreme Court issued a unanimous opinion that struck down a presumption of credibility given to immigrants seeking asylum or appealing deportation. The ruling concerned a rule that had been used repeatedly in immigration cases by the Ninth Circuit Court in California, in which the circuit court argued that, “in the absence of an explicit adverse credibility finding [by the agency], we must assume that [the immigrant’s] factual contentions are true.” In the Supreme Court’s ruling, Justice Neil Gorsuch wrote that there is no basis for such a presumption in the Immigration and Nationality Act (I.N.A.), which carefully describes the role and responsibilities of a reviewing court.

The pair of cases brought before the Court involved an immigrant from Mexico, Cesar Alcaraz-Enriquez, and a Chinese national seeking asylum, Ming Dai. Both cases contained some evidence that raised doubts about the initial testimonies provided by the applicants, but the immigration judges adjudicating their claims never made explicit evaluations of their credibility. The Ninth Circuit subsequently provided relief to both men.

The Supreme Court sent both cases back to the Ninth Circuit to be reconsidered.

GOVERNMENT REPORTS

Department of State: U.S. Periodic Report to the United Nations Committee on the Elimination of Racial Discrimination (CERD); June 2, 2021

In this periodic report before CERD to document U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination, the U.S. Department of State describes a series of immigration-related actions taken by the administration. The report highlights the administration’s creation of the Family Reunification Task Force, its efforts to ensure immigrants receive due process, and its work to modernize the legal immigration system and to foster increased legal immigration.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Explainer: Emergency Shelters and Facilities Housing Unaccompanied Children

This explainer describes the different kinds of shelters and facilities that are currently being used to house unaccompanied children (UACs). The explainer documents the emergency facilities that have recently been opened by the Biden administration to address the increase in UACs at the border.

The President’s Budget Request for the Department of Homeland Security (DHS): Fiscal Year (FY) 2021

This resource provides an overview of the Trump administration’s FY 2021 budget request for the Department of Homeland Security for its immigration-related responsibilities. The resource also compares the request to the amounts enacted by Congress for FY 2020 and the President’s budget request for FY 2020.

Bill Analysis: The Bipartisan Border Solutions Act

The bill would respond to increases in arriving migrants by creating regional border processing centers, expediting the asylum process, improving access to legal services, and providing additional resources and personnel for border processing.

* * *

*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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