Legislative Bulletin – Friday, November 15, 2019

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. 5071

The Embrace Act

The bill would provide access to federal public benefits without regard to immigration status. The bill defines “federal public benefit” as including any retirement, welfare, health, disability, education, food assistance, and unemployment benefit provided by a federal agency. The bill is part of a six-bill package titled “A Just Society.”

Sponsored by Alexandria Ocasio-Cortez (5 cosponsors – 0 Republicans, 5 Democrats)

11/13/2019 Introduced in the House by Representative Ocasio-Cortez

11/13/2019 Referred to the House Committee on Oversight and Reform

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, November 18, 2019.

The U.S. House of Representatives will be in session from Monday, November 18, 2019 through Thursday, November 21, 2019.

UPCOMING HEARINGS AND MARKUPS

Examining the Human Rights and Legal Implications of DHS’ ‘Remain in Mexico’ Policy

Date: Tuesday, November 19, 2019 at 10:00 a.m. (House Committee on Homeland Security)

Location: 310 Cannon House Office Building

Witnesses: TBA

THEMES IN WASHINGTON THIS WEEK

Legal

Supreme Court Holds Oral Arguments on DACA

The U.S. Supreme Court heard oral arguments on November 12 to consider the future of Deferred Action for Childhood Arrivals (DACA), which protects nearly 700,000 Dreamers from deportation and allows them to work legally in the United States. The case, Department of Homeland Security v. Regents of the University of California, centers on whether the Trump administration’s decision to rescind DACA is reviewable by the courts and, if so, whether the decision was lawful.

The Trump administration claimed during arguments that the decision to end DACA is not reviewable by federal courts. The administration also contended that DACA is unlawful and, that even if DACA were legal, the Department of Homeland Security (DHS) provided a sufficient policy-related reason for ending it. Former U.S. Solicitor General Theodore Olson, who represented the case’s plaintiffs, argued the Trump administration’s decision to end DACA was made in a cursory fashion without fully analyzing the impact of canceling the policy, as required by law.

The Court’s four liberal justices indicated that the Trump administration needed to provide a more compelling review before ending DACA. During arguments, Justice Sonia Sotomayor dismissed the Trump administration’s argument that it ended DACA because it thought it was unlawful: “This is not about the law, this is about [the administration’s] choice to destroy lives.” The Court’s conservative justices appeared prepared to uphold the manner under which the Trump administration ended DACA. Justice Brett Kavanaugh, a potential swing vote, said that the government’s position, “‘Even if it’s lawful, I nonetheless am going to exercise my discretion [to cancel it],’. . . was a very considered decision . . . [whether we agree] or disagree with the merits of it.” The justices appeared unconvinced by the Trump administration’s claim that federal courts do not have the power to review DACA’s cancellation.

The Supreme Court is expected to issue a decision between March 2020 and June 2020. If the Supreme Court sides with the Trump administration to end DACA, it creates a politically-sensitive issue for Congress and the Trump administration just months before the November election.

President Trump said on November 12 that if the Court allows him to end DACA, “a deal will be made with Dems for them to stay!” But congressional leaders expressed concern about the likelihood of a deal. Senator John Cornyn (R-Texas) stated that if DACA is ended, “there’s going to be chaos . . . . And I’m going to see if we can find a way to head that off.” Senator Dick Durbin (D-Illinois) was pessimistic, saying President Trump “is not looking for a solution” because “Stephen Miller and his gang are in his ear and his mind with their hate-filled approach to immigration.” Senator Susan Collins (R-Maine) also noted that President Trump is “obviously under pressure from hardliners like Stephen Miller to do the wrong thing.”

Federal

Chad Wolf Named Acting DHS Secretary after Senate Confirmation to Undersecretary Position, Cuccinelli to be Elevated to Deputy Secretary

Chad Wolf, previously the acting DHS undersecretary for policy, was sworn-in as acting secretary of the Department of Homeland Security (DHS) on November 19. The Trump administration had tapped Wolf to head the department two weeks earlier, but, because he was not holding a Senate-confirmed post, he was initially ineligible under the Federal Vacancies Reform Act. On November 12, the Senate voted 54 to 41 to confirm Wolf as undersecretary, clearing the way for him to assume the position of acting secretary.

Wolf is now the fifth person to head the agency in the Trump administration. He takes over from former acting secretary Kevin McAleenan, who held the post for seven months and announced his intention to resign in early October. The White House reportedly intends to keep Wolf on for only a short period as the administration determines whom it wants to head the department on a permanent basis.

Ken Cuccinelli, acting head of U.S. Citizenship and Immigration Services (USCIS) and noted immigration hawk, will be elevated to deputy secretary of DHS in tandem with Wolf taking over the department. Cuccinelli was reportedly President Trump’s first choice to head DHS, but he faced eligibility concerns and leading Republicans have warned that he is unlikely to survive a Senate confirmation vote. As second in command at DHS, it is likely Cuccinelli will continue to take an outsized role in implementing White House immigration policies.

USCIS Proposes New Fee Increases on Naturalization, Other Applications

U.S. Citizenship and Immigration Services (USCIS) published a proposed fee rule on November 14 that would increase the cost of applying for U.S. citizenship and could prevent hundreds of thousands of lawful permanent residents (LPRs) from naturalizing, among other changes to USCIS application fees. The fee rule proposes to increase the Application for Naturalization (Form N-400) fee to $1,170, an 83 percent increase from the current fee of $640 (not counting the current $85 biometrics fee). The fee increase far outpaces inflation, which would only require a fee increase of about $50 to keep pace with the cost of living. The fee rule also proposes to eliminate fee waivers for naturalization applicants, a move which would require almost all naturalization applicants to pay the full $1,170 fee.

In addition, for the first time in U.S. history, the proposed fee rule would establish a new $50 fee for asylum applications. The U.S. would join Australia, Iran and Fiji as the only countries in the world that charge a fee to seek asylum protections. The rule also proposes a new $275 fee for Deferred Action for Childhood Arrivals (DACA) applications (Form I-821D), increasing the overall DACA fee to $765, up from the current $495 fee. The fee rule also proposes transferring $207.6 million in USCIS fee funds to Immigration and Customs Enforcement (ICE) for “expenses associated with adjudication and naturalization services.” The proposed fee rule is open for a 30-day public comment period, which closes on December 16.

Immigration and naturalization advocates sharply criticized the proposed fee rule, saying it would “create a wealth test for citizenship, one that could exclude hundreds of thousands – and potentially millions – of otherwise eligible applicants.”

Trump Administration Strategy Reportedly Led to Child Migrant Detention Crisis

On November 12, new reporting from the Washington Post revealed the child migrant detention crisis in the spring of 2018 was part of an intentional strategy by the Trump administration to deter future migration. In early 2018, the administration planned on expanding and slowing down the vetting procedure for direct relative “sponsors” who came to secure the release of unaccompanied minors detained at the border. Leaked emails released by the Post and NBC News reveal agencies like the Department of Health and Human Services (HHS) and the Office of Refugee Resettlement (ORR) provided ample warning that without additional resources, the increased vetting would deter sponsors – usually relatives – from coming forward, leading to overcrowding in holding facilities and result in inadequate resources for children held in those facilities.

The Washington Post report suggests that career staff warned that the new policy would lead to overcrowding in these facilities, but decision makers in the administration carried out the policy in the hopes that it would serve as a deterrent for future migrants. The reporting also reveals a divide within the administration over ending the humanitarian crisis, with efforts by some agencies to resolve it behind the scenes. The rampant overcrowding of child detention facilities only was ameliorated after HHS quietly scaled back the background checks in late 2018, leading more sponsors to come forward and accept custody of children.

The U.S. has held over 70,000 migrant children in HHS or DHS custody over the past year, a record amount and more than any other country. Four thousand children remain in custody today.

Trump Administration Proposes Denying Work Permits to Asylum Seekers

DHS on November 14 announced a proposed rule that would deny work permits to asylum seekers who have crossed the border unlawfully. With Trump administration policies like Migrant Protection Protocol (MPP), also known as the “Remain in Mexico” policy, and  “metering” protocols making applying for asylum at a legal port of entry increasingly difficult, the majority of asylum seekers cross unlawfully before asserting their legal right to seek asylum protections.

The rule comes amid a number of attempts by the administration to restrict asylum and curtail benefits that can be accessed by asylum seekers. The proposed rule would also double the wait time for work permits for eligible asylum seekers.

In addition to those who have crossed unlawfully, DHS’s proposed rule would deny work permits to asylum seekers who have missed immigration court appointments or who have committed certain crimes. The proposed rule has a 60-day comment period before going into effect.

The proposed rule comes as a number of large companies have joined immigration and refugee advocates in voicing concern about a similar proposal to scrap a requirement to approve work permits within 30 days of application. A letter signed by Airbnb, Chobani, and other companies expressed concern that “the proposed rule would hurt our ability to attract and retain talent.”

Apprehensions at the Southern Border Continued to Decline in October

U.S. Customs and Border Protection (CBP) reportedly apprehended about 36,300 migrants crossing the U.S.-Mexico border in October. The number represents a 10 percent decrease from the preceding month, and a 75 percent decrease from May, when apprehensions peaked for the year at 132,856. A senior Trump administration official credited the administration’s policies for the decline, claiming “the reality is that the administration is closing the door on the smugglers and traffickers who for too long exploited our system.”

The Trump administration has implemented multiple policies along the Southern Border to try to stem the flow of migrants coming to the U.S.-Mexico border. These policies include asylum-related agreements with the governments of Guatemala, Honduras and El Salvador, which block asylum seekers who pass through those countries from seeking protection in the U.S. unless they have first sought protection in those countries. In addition, under the Migrant Protection Protocols (MPP), known as the “Remain in Mexico” policy, an estimated 50,000 asylum seekers have been sent back to wait in Mexico while their immigration court cases move forward in the U.S. Mexico has also increased immigration enforcement on their Southern border to restrict the migration of individuals from Central America.

Trump Administration Prepares to Seize Private Property through Eminent Domain

The Trump administration is reportedly preparing court filings to seize private property in South Texas to construct additional physical barriers along the Southern border. Using an expedited version of eminent domain, the federal government is expected to file under the Declaration of Taking Act in federal court, which allows the land title to automatically transfer to the government and dispenses with the eminent domain process that is typically provided to property owners. The Declaration of Taking Act, which is typically reserved for emergencies, will allow the federal government to delay actual price negotiations with property owners until after seizing the border lands.

The Department of Justice (DOJ) and the Department of Defense (DOD) have also prepared letters to inform landowners that government officials will enter their property to assess the area, test the soil and conduct land surveys. The request to survey the property is generally the first sign that the government is interested in acquiring the property. Mark Morgan, acting commissioner of U.S. Customs and Border Protection (CBP), said on November 14 that the Trump administration is “on track to get the land we need for 450 miles” of new border barriers.

State and Local

Some County Clerks Plan to Oppose New York’s Law to Allow Undocumented Immigrants to Obtain Driver’s Licenses

County clerks in upstate New York plan to oppose a new state law that will allow certain undocumented immigrants living in New York State to legally obtain driver’s licenses. The Green Light law permits New York residents to apply for driver’s licenses from their local Department of Motor Vehicle offices without a Social Security number, and prohibits the disclosure of an applicant’s immigration status to federal immigration authorities.

Green Light law proponents claim the new law will help undocumented individuals avoid deportation for minor traffic offenses. Opponents of the new law claim it conflicts with federal laws prohibiting the assistance of anyone who is suspected of being in the country illegally. “If you come into my facility and you have done something illegally it is my obligation to report you to the appropriate authorities, whether you’re a citizen or not,” stated one county clerk opposing the new law.

County clerks in New York are elected officials, which further complicates implementation of the new law. The Green Light law goes into effect on December 14 and is expected to face future litigation. Although 13 other states plus Washington, D.C. already provide driver’s licenses to some undocumented immigrants, New York State has a long history of debating the issue.

GOVERNMENT REPORTS

There were no immigration-related government reports published on the week of Monday, November 11, 2019.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Where Does DACA Stand Now?

This animated video provides an overview of the state of play for Deferred Action for Childhood Arrivals (DACA) and explains why a permanent, legislative solution for Dreamers is important.

Mexico’s Asylum System Is Inadequate

This analysis examines the Mexican asylum system and finds that it cannot handle the scope of the humanitarian crisis along the U.S.-Mexico border due to insufficient infrastructure, legal representation and due process. The analysis notes that the U.S. asylum system has more experience handling large numbers of asylum claims and sufficient resources to ensure fair adjudication.

Eminent Domain Along the Southern Border: Government Seizures of Private Property

This fact sheet provides an overview of eminent domain and how the federal government utilizes it to construct physical barriers, including fencing, along the U.S.-Mexico border.

* * *

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

Learn More

Read more about Immigration Improv

Podcast

Immigration Improv

Read more about Legislative Bulletin - Friday, November 22, 2019

Legislative Bulletin

Legislative Bulletin - Friday, November 22, 2019

Read more about Proposed USCIS Fee Increases

Fact Sheet

Proposed USCIS Fee Increases