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Legislative Bulletin — Friday, November 5, 2021




S. 3108

Fair Day in Court for Kids Act of 2021

The bill would require that the government appoint counsel for unaccompanied children during immigration proceedings. The bill would also ensure that these children are informed of this right and have access to their lawyer even if they are detained by the government.

Sponsored by Senator Mazie Hirono (D-HI) (26 cosponsors— 25 Democrats, 1 Independent)

10/28/2021 Introduced in the Senate by Senator Hirono

10/28/2021 Referred to the Senate Committee on the Judiciary

S. 3157

To require the Secretary of Labor to conduct a study of the factors affecting employment opportunities for immigrants and refugees with professional credentials obtained in foreign countries

Sponsored by Senator Amy Klobuchar (D-MN) (3 cosponsors— 2 Republicans, 1 Democrat))

11/03/2021 Introduced in the Senate by Senator Klobuchar

11/03/2021 Referred to the Senate Committee on Health, Education, Labor, and Pensions.

H.R. 5810

To authorize the transfer to Arizona, New Mexico, and Texas of certain materials for the construction of the border wall

Sponsored by Representative Beth Van Duyne (R-Texas) (0 cosponsors)

11/02/2021 Introduced in the House by Representative Van Duyne

11/02/2021 Referred to the House Committees on Homeland Security, Transportation and Infrastructure, and Oversight and Reform

H.R. 5831

Protect Communities from a Porous Border Act

The bill would provide for mandatory detention of undocumented immigrants who appear in domestic and international criminal databases. It would also require the federal government to notify governors before releasing undocumented immigrants into their states. The bill would also provide governors with the ultimate authority to reject undocumented immigrants from being released into their states.

Sponsored by Representative Jodie Arrington (R-Texas) (25 cosponsors— 25 Republicans, 0 Democrats)

11/03/2021 Introduced in the House by Representative Arrington

11/03/2021 Referred to the House Committee on the Judiciary


Illegal Immigration Payoff Prohibition Act

The bill would block the attorney general from making any settlement payments to undocumented immigrants that directly arise from entering the country between ports of entry.

Sponsored by Representative Tom McClintock (R-California) (158 cosponsors— 158 Republicans, 0 Democrats)

11/04/2021 Introduced in the House by Representative McClintock

11/04/2021 Referred to the House Committee on the Judiciary


The U.S. Senate will not be in session the week of November 8, 2021.

The U.S. House of Representatives will be in session for committee work from Monday, November 8, through Wednesday, November 10, 2021.


There are no immigration-related hearings scheduled for the week of November 8, 2021.



Biden Administration Revokes Metering Policies, Calls for Increase in Asylum Processing at Official Crossing Points

On November 1, the Biden administration revoked a Trump-era policy known as metering, which limited the number of asylum seekers who can be processed each day at designated crossing points along the U.S.-Mexico border. The memorandum  further instructs the Customs and Border Protection Office of Field Operations (CBP OFO) to “consider and take appropriate measures, as operationally feasible, to increase capacity to process undocumented noncitizens at Southwest border ports of entry, including those who may be seeking asylum and other forms of protection.”

The document stops short of requiring all asylum seekers to be immediately processed upon arrival at an official crossing point, stating that OFO officials must “strive to process all arrivals, regardless of documentation status, who are waiting to enter, as expeditiously as possible, based on available resources and capacity.”

According to an October 2021 Congressional Research Service report, the use of metering policies resulted in migrants waiting for extended periods in squalid and dangerous conditions on the Mexican side of the border. Metering policies have also received criticism from immigrant advocates and lawyers who argue that they deny asylum seekers the legal right to pursue their claims and incentivize attempts to cross the border between ports of entry without authorization. CBP did not assist in managing or organizing the list of asylum seekers waiting to cross, and in many cases, it was the migrants themselves who kept a handwritten metering list.


Biden Administration Considers Settlement for Families Separated at the Border

On October 28, the Wall Street Journal reported that the Biden administration is considering whether to settle a class-action lawsuit by paying approximately $450,000 per person to families who were separated under the Trump administration’s “zero-tolerance policy.” More than 940 claims have been filed to date regarding family separation at the border, and it is estimated that the total financial cost of the settlement could be $1 billion or more.

The consideration comes as a consequence of a class-action lawsuit that the American Civil Liberties Union (ACLU) filed against the U.S. government in 2019, “seeking damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other.” In an October 27 court filing, ACLU attorneys stated that they had made “meaningful progress towards a settlement.” However, on November 4, President Biden noted that the payment amounts cited in the Wall Street Journal report were “not gonna happen.”

The zero-tolerance policy, which was met with widespread criticism from members of Congress, faith groups, and the general public, resulted in the separation of more than 3,000 children from their parents in 2018. The Trump administration failed to properly keep records of those that were separated, and, as of October 7, more than 1,000 separated migrant children have yet to be reunited with their parents.

On November 4, Rep. Tom McClintock (R-California) introduced the Illegal Immigration Payoff Prohibition Act — cosponsored by 158 Republican representatives — which would block the attorney general from making any settlement payments to undocumented immigrants that directly arise from entering the country between ports of entry. Additionally, on November 1, a group of eleven Republican senators led by Senator Chuck Grassley (R-IA) sent a letter to President Biden expressing their disagreement with the settlement negotiations, stating that “rewarding illegal immigration with financial payments runs counter to our laws and would only serve to encourage more lawlessness at our border.”

Supreme Court Rules Certain TPS Recipients are Ineligible for Permanent Residence

On November 1, the Supreme Court unanimously ruled that Temporary Protected Status (TPS) holders cannot become eligible for green cards if they initially entered the country without authorization. The case revolved around whether TPS holders should be classified as nonimmigrants under the Immigration and Nationality Act, and as such, should be considered “inspected and admitted,” regardless of whether they initially entered the country without authorization.

The decision came three days after the Eighth Circuit federal appellate court ruled, in a split 2-1 decision, in favor of four TPS applicants who sought to be eligible for permanent legal residence despite entering the U.S. between official crossing points. The U.S. Citizenship and Immigration Services (USCIS) had rejected their green card requests, noting that the migrants had entered the country without inspection and could not meet the base requirement to be “inspected and admitted.”

Nominations and Personnel

Senate Finance Committee Advances Nomination of Chris Magnus to Lead CBP

On November 3, the Senate Finance Committee advanced the nomination of Chief Chris Magnus, President Biden’s choice for the director of U.S. Customs and Border Protection (CBP), in a 15-13 vote. The committee voted almost along party lines to bring Magnus closer to a confirmation vote on the Senate floor. Senator Bill Cassidy (R-Louisiana) was the lone Republican on the committee to vote in favor of advancing the nomination.

In expressing his support to Chief Magnus, Senator Ron Wyden (D-Oregon), Chairman of the Senate Finance Committee, stated that the chief “shares the view that enforcing our immigration laws and treating people humanely are not mutually exclusive.”

If confirmed, Magnus would be tasked with securing and protecting U.S. borders, managing and processing arriving migrants and asylum seekers, and securing the initial transfer of unaccompanied minors from Border Patrol stations to the Department of Health and Human Services. Magnus formerly served as police chief of Tucson, Arizona, and his nomination has drawn support from law enforcement officials around the country.


Congressional Research Service (CRS): Adding Countries to the Visa Waiver Program: Effects on National Security and Tourism, October 27, 2021

This report analyzes the impact of the Visa Waiver Program (VWP) on U.S. national security and tourism. The VWP — established in 1986 as a pilot program and made permanent in 2000 — allows eligible nationals from 39 countries to enter the United States for stays of fewer than 90 days for tourism or business purposes without applying for a visa from a U.S. embassy or consulate.

Congressional Research Service (CRS): Afghan Eligibility for Selected Benefits Based on Immigration Status: In Brief, October 27, 2021

This brief explains the differences between refugees, asylees, Afghan special immigrants, parolees, temporary protected status (TPS), and deferred enforcement departure (DED). It also outlines the eligibility — depending on their status — for Medicaid, Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and Office of Refugee Resettlement (ORR) Refugee Benefits.

Department of Homeland Security – Office of the Inspector General (OIG): Many Factors Hinder ICE’s Ability to Maintain Adequate Medical Staffing at Detention Facilities, October 29, 2021

This report highlights the challenges that U.S. Immigration and Customs Enforcement (ICE) faces to recruit, hire, and retain medical staff in its facilities. OIG reports that ICE’s inability to offer competitive pay rates and the cumbersome hiring processes have affected the agency’s ability to attract qualified staff. The report also notes that reluctance among some medical specialists to treat detainees has reduced access to specialty care.


Explainer: Budget Reconciliation and Immigration Reform

This resource explains the elements, rules, and history of the budget reconciliation process. Congressional Democrats are expected to try to use reconciliation to avoid a Senate filibuster and pass immigration reforms with a simple majority.

Explainer: What’s Happening at the U.S.-Mexico Border

This regularly updated explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior. The explainer also includes a Facebook live discussion covering recent developments at the border.

Fact Sheet: Unused Green Card Recapture

This fact sheet explains green card recapture. Every year, the U.S. sets aside a specific number of available green cards for individuals from all around the world. However, over the years, various administrative complications have left hundreds of thousands of green cards unissued. Green card recapture would “recapture” a number of these unused green cards accumulated over the years, relieving the backlog and promoting economic growth.

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*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 Thank you.

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