Legislative Bulletin – Friday, May 1, 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

H.R. 6628

The Congressional Power of the Purse Act

The bill would prevent the President from rescinding appropriated funds without congressional approval. The bill would also limit Presidential declarations of national emergencies to one month in length and give exclusive power to Congress to extend them. It would prevent the President from blocking or redirecting congressionally appropriated funds for emergencies or Overseas Contingency Operations (OCO). The bill would prevent the President from re-appropriating certain funds without Congressional consent from various accounts to pay for wall construction on the U.S.-Mexico border.

Sponsored by Representative John Yarmuth (D-Kentucky) (2 cosponsors – 2 Democrats, 0 Republicans)

04/28/2020 Introduced in the House by Representative Yarmuth

04/28/2020 Referred to the House Committees on the Budget, Oversight and Reform, Transportation and Infrastructure, Rules, Foreign Affairs, Ways and Means, and the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, May 4, 2020.

The U.S. House of Representatives will be in recess the week of Monday, May 4, 2020.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings or markups currently scheduled in the U.S. Senate or the U.S. House of Representatives.

THEMES IN WASHINGTON THIS WEEK

Federal

Trump Proclamation Suspending Immigration Faces Legal Challenge, Mounting Criticism

On April 25, the American Immigration Lawyers Association (AILA) joined the Justice Action Center (JAC) and the Innovation Law Lab in filing a legal action to halt President Trump’s April 22 proclamation partially suspending legal immigration from abroad. The motion seeking a temporary restraining order was filed in connection to an existing lawsuit concerning a separate presidential proclamation that would bar immigrants who lacked health insurance from entering the U.S.

In the days since its enactment, the April 22 proclamation has faced mounting criticism. Several economists have questioned the purported economic benefits of the proclamation, which the administration justified as a response to rising unemployment rates in the wake of the novel coronavirus (COVID-19) pandemic. Lawmakers from both sides of the aisle have called the proclamation a “distraction.” On April 28, a group of prominent evangelical leaders sent a letter to the President expressing their concern about the proclamation, writing “immigrants can actually be an integral part of the economic recovery.”

On April 24, a Washington Post report revealed that the administration may be planning additional restrictions to legal immigration. A high-ranking administration official was reported as saying of the April 22 proclamation that, “the President has opened the door to more steps.” The official continued, “you can certainly prepare for more action from him as time goes forward.”

Trump Suggests “Sanctuary Jurisdictions” Will Have to Change Policies to Get Federal Coronavirus Support

On April 28, President Trump suggested that COVID-19-related federal aid to states and localities may be withheld from jurisdictions with “sanctuary policies.” In a public meeting with Governor Ron DeSantis (R-Florida), Trump threatened that aid may only be made available to certain states and localities if they made “sanctuary-city adjustments” to realign with the administration’s immigration priorities. The administration has threatened to withhold funds from “sanctuary jurisdictions” on multiple prior occasions, including past efforts to condition federal grants for local criminal justice efforts on whether or not sanctuary policies were in place.

“Sanctuary jurisdictions” are jurisdictions with policies which limit state and local officials’ involvement in federal immigration enforcement functions. Advocates and local officials argue that requiring local law enforcement to play a role in all federal immigration enforcement activities undermines public safety and community trust. Legal experts have argued that prior Trump administration efforts to link sanctuary policies to federal aid are unconstitutional, with multiple federal courts halting attempts by the administration to limit aid to jurisdictions that choose not to honor immigration detainer requests or have polices discouraging law enforcement from asking individuals about their immigration status.

Coronavirus Continues to Spread in Immigration Detention

On April 30, Immigration and Customs Enforcement (ICE) verified that COVID-19 continues to spread in immigration detention, with 490 confirmed positive cases among detainees out of 1,030 total tests. The rate of positive cases per test still far exceeds the national average, signaling the reported numbers likely underestimate the extent of the virus’ spread in detention facilities. Less than 2% of the roughly 30,000 detainees in ICE facilities have been tested. On April 27, the number of positive cases reported in a family detention facility near Dallas, Texas, rose from three to 36 after detainees were transferred there from a Pennsylvania facility that has become a locus of the virus. In addition, two ICE officers working at a detention facility in Louisiana died this week after testing positive for COVID-19.

As COVID-19 continues to spread, immigrant and civil rights advocacy groups have continued to persuade judges to release immigrant detainees in some circumstances, particularly individuals who have underlying health conditions making them vulnerable to the virus. On April 27, Judge James Boasberg ordered ICE to explain on a case-by-case basis why detainees in family detention facilities have not been released. He stopped short of ordering their emergency release, however, noting that he did not have the jurisdiction to do so. On April 24, Judge Dolly Gee ruled that both ICE and the Office of Refugee Resettlement (ORR), which houses unaccompanied immigrant children, are not moving fast enough to release children and their families. The judge ruled that due to the exigent circumstances, agencies should waive certain procedural requirements to speed along releases and to improve conditions in existing facilities.

Pentagon Pulls Money from Overseas Projects to Pay for Border Wall 

On April 27, the Pentagon released $545.5 million to replenish funding redirected from domestic military construction projects to pay for ongoing construction of a wall along the U.S.-Mexico border. The funding was diverted from 19 projects appropriated under the 2020 Overseas Contingency Operations (OCO) fund, which funds Department of Defense (DoD) efforts related to international crisis response, infrastructure, and coalition support. The re-appropriation will replenish funding for 22 previously approved domestic military projects with award dates in 2020.

Democratic lawmakers said the actions disregard Congressional appropriating powers. In a statement, House Appropriations Chairwoman Nita Lowey (D-New York) and House Military Construction Subcommittee Chairwoman Debbie Wasserman Schultz of Florida, said that this latest diversion of funds cancels “critical European Deterrence Initiative projects that were designed to bolster real national security needs and prevent Russian aggression against American allies and partners in Europe.” On April 28, House Democrats introduced the Congressional Power of the Purse Act, which would, among other measures, prevent the President from redirecting OCO funds without Congressional consent.

Thus far, the Trump administration has redirected $3.6 billion from military construction funds and $10 billion overall from the defense budget in order to build a wall along the U.S.-Mexico border.

U.S. Begins Testing Guatemalan Deportees for COVID-19 Before Deportation Flights

On April 30, after a two-week pause, the U.S. resumed deportation flights to Guatemala with a planeload of 89 deportees. U.S. and Guatemalan officials confirmed that the deportees were tested for COVID-19 before departing U.S. soil, a departure from past protocol and a response to the cause of the 14-day suspension in flights. On April 16, Guatemalan officials moved to suspend deportations to the country after more than 100 deportees tested positive for the disease upon arriving, making up approximately a quarter of the country’s total positive cases at that time.

The U.S. continues deportations to other countries without administering testing beforehand, drawing criticism from health experts who warn of “exporting” the virus to countries that do not have the resources to handle an outbreak of COVID-19. ICE says it would like to test all deportees but does not yet have the testing capacity.

Trump Orders Meat Processing Plants to Stay Open Amid Fears

On April 28, President Trump issued an Executive Order invoking the Defense Production Act to require meat processing plants to stay open across the country to protect the nation’s food supply. The order comes as safety concerns continue to grow among a predominantly-immigrant meat processing workforce and plants across the country have shut down due to outbreaks of COVID-19. Before signing the executive order, the President said that its purpose was to “solve any liability problems” faced by employers. The United Food and Commercial Workers International Union, which represents meatpacking workers, responded to the order by saying that “[we] must put the safety of our country’s meatpacking workers first,” and that employers should be made to provide “the highest level of protective equipment” to their workers.

Legal

Supreme Court Declines to Suspend Public Charge Rule During Pandemic

On April 24, the Supreme Court declined requests from state attorneys general (AGs) to halt or reverse the Trump administration’s “public charge” policy during the coronavirus pandemic. The “public charge” rule, implemented nationwide on February 21, allows federal officials to reject immigrants applying for a green card, an immigrant visa, or a temporary visa if they have previously accessed or are deemed likely to rely on certain forms of public assistance. On April 13, the AGs of New York, Connecticut and Vermont asked the Supreme Court to temporarily pause the rule, arguing that the Department of Homeland Security (DHS) had not gone far enough to assure immigrants that they will not put their legal status at risk by requesting COVID-19-related medical and financial assistance. The state AGs also argued that, “by revising its application of the Public Charge Rule during the current COVID-19 crisis, USCIS has effectively acknowledged the Rule’s deterrent effect on immigrants’ willingness to obtain necessary medical care.”

In March, DHS officials said they would not consider the use of public benefits for “testing, treatment, nor preventative care” related to COVID-19 as part of the public charge inadmissibility determination.

U.S. Troops Sue Pentagon Over Slow Naturalization Process

On April 24, the American Civil Liberties Union (ACLU) filed a lawsuit against the Pentagon on behalf of six non-citizen U.S. troops, who allege they are being blocked from accessing the expedited citizenship procedures they are eligible for as military personnel. Roughly 8,000 non-citizens join the active duty military each year, and as long as they have received certification from the Pentagon that they have served honorably, all are eligible for expedited citizenship under the 1952 Immigration and Nationality Act. In 2017, the Department of Defense (DoD) issued policy guidance which dramatically slows the certification process and limits the number of officials who can approve it. The new lawsuit claims the 2017 guidance “makes it difficult, if not impossible, for service members to benefit from expedited naturalization.”

Federal Courts Rule that Trump Administration Cannot Withhold Funds from “Sanctuary Jurisdictions”

On April 30, the U.S. Court of Appeals for the Seventh Circuit held that the Trump administration court cannot bar Chicago from receiving law enforcement grant funding because it places limits on local law enforcement officers from carrying out certain federal immigration enforcement activities.

The funds at issue come from the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program, which disperses $25 million annually for criminal justice-related activities. The 2-1 decision kept in place a nationwide injunction barring the Department of Justice (DOJ) from withholding Byrne JAG funding on the basis of newly-created sanctuary-related conditions. The court held, “the federal government cannot merely conscript the police forces of the state or local governments to achieve its ends; that would eviscerate the principles of federalism that rest at the very foundation of our government. . . . The Attorney General’s use of extra-statutory conditions on federal grant awards as a tool to obtain compliance with his policy objectives strikes at the heart of another core value, which is the separation of powers among the branches of the federal government.”

Earlier, on April 23, a Senior U.S. District Judge John Kane ruled that DOJ cannot legally withhold federal funds from Colorado law enforcement agencies in order to compel the state to cooperate with immigration-related conditions. In 2019, the DOJ withheld Byrne JAG funds from Colorado after the state objected to conditions requiring local law enforcement involvement in federal immigration enforcement activities. The judge ruled that DOJ “has no statutory authority” to impose additional immigration-related conditions on the formula grant. In its filing, the state of Colorado said that it “lacks the authority to force local entities to meet the conditions” and that agreeing to the conditions would damage “immigrant communities’ trust in law enforcement.”

Several federal courts have prevented the Trump administration from adding new conditions to Byrne JAG funding relating to so-called sanctuary policies, although a February 2020 decision of the Second Circuit found in favor of the administration.

GOVERNMENT REPORTS

There were no immigration-related government reports published the week of Monday, April 27, 2020.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Summary of Trump’s Proclamation

This resource provides a summary of the April 22 proclamation suspending immigration and travel from outside the U.S. The resource describes who the proclamation applies to and lists the various exemptions to the suspension.

‘Sanctuary City’ is Being Used as a Catch-All. It Shouldn’t.

This blog post provides additional detail on so-called “sanctuary” jurisdictions, and explains why use of the term serves only to obscure the complicated relationship between local law enforcement officials and federal immigration enforcement efforts.

Fact Sheet: Operation Stonegarden

This factsheet provides information on Operation Stonegarden, a federal grant program that provides funding to state, local, and tribal law enforcement agencies to help carry out certain border security functions. The factsheet also lists criticisms and potential improvements to the program.

* * *

*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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