Legislative Bulletin – Friday, November 6, 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. 8708

The American Families United Act

The bill would provide the Department of Homeland Security and the Attorney General with the discretion to stop the deportations of certain family members of U.S. citizens. It would also provide the Attorney General with discretion based on humanitarian purposes to preserve family unity for U.S. citizen spouses or parents of U.S. citizen children.

Sponsored by Representative Veronica Escobar (D-Texas) (2 Cosponsors – 1 Republican, 1 Democrat)

10/30/2020 Introduced in the House of Representatives by Representative Escobar

10/30/2020 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, November 9, 2020.

The U.S. House of Representatives will not be in session the week of Monday, November 9, 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

Immigrants Win Down Ballot Races as Nation Awaits Presidential Election Results

With multiple outlets yet to make a final call on the outcome of the November 3 presidential election, the results of numerous down ballot races for seats in the House of Representatives — including many featuring immigrant candidates — are more clear.

All 435 seats in the House were up for election, including 15 races featuring immigrant candidates. Of these, 14 have thus far been called in favor of the immigrant running for office. The 15th race, in California’s 39th district, remains too close to call, with immigrant candidate Young Kim (R) narrowly leading incumbent Gil Cisneros (D). In Florida’s 26th district, two immigrant candidates were up for election, with mayor of Miami-Dade County Carlos Giménez (R) declared the victor.

At the time of publishing, most outlets’ decision desks have not yet called the presidential election for former Vice President Joe Biden or President Donald Trump. The presidential race was fought over an electorate that included a record number of naturalized citizens, and both candidates hoped to include immigrants and voters of color in their coalitions. While both campaigns focused on a number of key issues throughout the race, the issue of immigration represented a sharp distinction between the President and former Vice President.

In the weeks leading up to election day on November 3, the Biden campaign highlighted this distinction by criticizing the current administration’s family separation policies at the Southwest border, pointing to a recent report that 545 migrant children remain separated from their parents. The Trump administration, meanwhile, accelerated construction of barriers at the border and Immigration and Customs Enforcement (ICE) interior enforcement operations in the lead up to November 3. Despite toning down its immigration rhetoric overall relative to past election cycles, the Trump campaign touted the enforcement and border construction efforts and claimed Biden’s more welcoming immigration platform would be harmful to the economy.

Administration Improperly Deports Unaccompanied Children from Other Countries into Mexico

According to a news report on October 30, the Trump administration has been violating diplomatic agreements by deporting unaccompanied migrant children from other countries into Mexico. It is not immediately clear what is happening to these children after being sent to a country where they may have no family connections or designated caretakers.

The expulsions have been taking place as part of a broader, pandemic-related effort to rapidly deport almost everyone who arrives at the border, including asylum seekers and unaccompanied children. When these summary deportations, known as “Title 42” expulsions, were first implemented in March, the U.S. formalized a diplomatic agreement with Mexican authorities that it would not return unaccompanied migrant children from other countries into Mexico under the new policy. Many unaccompanied children — particularly those from Central America — were instead held secretively in private hotels before being placed on deportation flights to their home countries. However, immigration advocates and child welfare workers have long suspected that some of these Guatemalan, Honduran and Salvadoran children have been deported to Mexico as well, in violation of the agreement between the two governments.

Those rumors were substantiated on October 30, when an internal email from a senior U.S. Border Patrol official stated that, “recently, we have identified several suspected instances where Single Minors (SM) from countries other than Mexico have been expelled via ports of entry rather than referred to [Immigration and Customs Enforcement] Air Operations for expulsion flights.” The email went on to state that if these illicit expulsions were to continue, they would “place Title 42 operations in significant jeopardy.”

A November 3 news report provided additional information about some of the unaccompanied children from other countries who had been sent to Mexico, noting their families were “anxious and confused after their children and young relatives were sent without any adult to accompany them into a country that is not their own.”

Immigration advocates say that they still “have no idea” how many children there are that have been returned to Mexico in violation of the agreement, and have expressed particular concern at the seeming haphazard nature of the government’s treatment of unaccompanied minors. The reports come just weeks after a court filing revealed that that the government has not reunited, and in many cases has not located, the parents of 545 children after it separated them as part of a pilot program in 2017.

Trump Advisor Lays Out Immigration Priorities for Potential Second Term

Stephen Miller, Senior Advisor to President Trump, has released the administration’s immigration policy plans should the President win re-election. Each of the priorities outlined would continue the Trump administration’s crackdown on undocumented immigrants and the asylum system and further restrict legal pathways for immigrants and nonimmigrants.

The plan centers on four major priorities: limiting asylum grants, aggressive action against “sanctuary cities,” the expansion of travel bans and restrictions, and further restrictions to immigrant work visas. According to Miller, the administration would push for legislation punishing “sanctuary” jurisdictions for limiting state and local officials’ involvement in federal immigration enforcement functions. In a potential second term, the Trump administration would also continue its efforts to restrict guest worker programs such as H-1B visas, in order to prioritize only those foreign workers who are offered the highest wages.

Miller also said that the Trump administration would seek to amend the Flores settlement agreement, which protects the rights of migrant children. The settlement currently requires children to be released after 20 days in immigration detention, and Miller suggested the administration would work to alter the agreement so that children could be detained indefinitely.

With the President’s re-election increasingly unlikely, it is possible the administration may act on Miller’s list of priorities during the remainder of the term.

Temporary Protected Status Extended for South Sudan

On November 3, Acting Secretary of Homeland Security Chad Wolf extended Temporary Protected Status (TPS) for South Sudan for 18 additional months. There are currently approximately 98 South Sudanese beneficiaries of TPS, who now may re-register for protected status through May 2, 2022. While status was extended for current South Sudanese TPS holders, it was not redesignated, meaning those who arrived in the U.S. after January 2016 remain vulnerable to deportation.

TPS is granted by the Secretary of DHS to eligible foreign-born individuals who are unable to return home safely due to violence or other circumstances in their home country.

Department of Labor Publishes New Rule Adjusting Wages for Temporary Farmworkers

On November 5, the U.S. Department of Labor published a final rule that adjusts the minimum wage requirements for H-2A temporary farmworkers. The rule, which goes into effect on December 20, updates the methodology for determining the Adverse Effect Wage Rate (AEWR), which is meant to ensure that growers do not use temporary immigration programs to adversely affect the wages or opportunities provided to U.S.-born workers. The rule freezes the AEWR for two years, and starting in 2023, moves to adjust the wage rate based on Bureau of Labor Statistics (BLS) data, rather than the U.S. Department of Agriculture’s Farm Labor Survey.

Growers have criticized the current AEWR calculation for resulting in large swings in required wages from year to year and from state to state. They have noted that without a more stable required wage rate, it is impossible to effectively plan and budget for workforce needs. Workers’ groups, meanwhile, have expressed concern that the wage freeze and methodology adjustment will allow growers to underpay their workers.

Use of the BLS data would likely result in H-2A worker wages rising approximately 2.5-3.0% annually.

Legal

Federal Court Rejects Public Charge Rule, But Rule Still in Place During Appeal

On November 3, the 7th U.S. Circuit Court of Appeals put a hold on a decision from the day before regarding the Trump administration’s public charge rule, allowing the rule to go back into effect while the court considers the case. On November 2, a federal judge in Chicago had ordered the Trump administration to vacate the rule on the grounds that it exceeded the executive branch’s authority. The two decisions are the latest in the ongoing legal battle over the policy since its introduction in September 2018, which has seen the rule repeatedly go into and out of effect in individual states and across the country.

The public charge rule allows officials to deny admission, visa renewals, or permanent residency to certain noncitizens based on their use of certain public benefits. During the ongoing coronavirus pandemic, health experts and immigration advocates have warned that implementing the public charge rule has discouraged immigrants from seeking out vital healthcare and other services.

Four States Sue to Allow New Applications to DACA

On November 2, the states of California, Maine, Maryland, and Minnesota filed suit against the administration for refusing to allow new applications to the Deferred Action for Childhood Arrival (DACA) program. The suit comes after acting DHS Secretary Chad Wolf issued a July 28 memorandum limiting protections given to DACA recipients to one year and closing DACA to new applicants. In the suit, the four states argue that Wolf was unlawfully appointed to his position and was therefore “unlawfully exercising the functions and duties of the secretary of Homeland Security” when the memo was implemented.

In a separate case in September 2020, a federal judge in Maryland blocked a DHS asylum regulation in part because she found the plaintiffs would likely be able to show that Wolf had been improperly appointed and was serving unlawfully at the time the regulation was issued.

Approximately 680,000 individuals are eligible but are not protected by DACA.

GOVERNMENT REPORTS

Department of Homeland Security (DHS) Office of the Inspector General (OIG): CBP Has Taken Steps to Limit Processing of Undocumented Aliens at Ports of Entry, October 27, 2020

This report outlines how, in May 2018, officials from DHS and Customs and Border Protection (CBP) limited the processing of asylum seekers who presented themselves at ports of entry (POEs) along the Southwest border. During a surge of asylum seekers arriving at designated POEs in 2018, then-DHS secretary Kirstjen Nielson approved “queue management” policies which resulted in 650 asylum seekers unable to enter every day. The report finds that amid growing queues, CBP also illegally turned away asylum seekers that had already entered the United States.

DHS Office of the Inspector General (OIG): ICE Needs to Address Concerns about Detainee Care and Treatment at the Howard County Detention Center, October 28, 2020

This report describes OIG findings from a December 2019 unannounced inspection of the Howard County Detention Center (HCDC) in Maryland. OIG found that the Howard County Detention Center was in violation of several detention standards that threatened the health, safety, and rights of detainees. The report reveals that HCDC officials conducted excessive strip-searches of detainees, which violated the center’s own policy, and that officials failed to provide detainees with two hot meals per day. Those placed in segregated confinement were not consistently given three meals a day. According to the report, HCDC also did not properly document detainee medical grievances or the facility’s handling of them.

Congressional Research Service (CRS): Immigration Relief for Victims of Trafficking, October 28, 2020

This report provides information on how noncitizen victims of human trafficking can access protections from deportation. Eligible persons could be offered protections under one of the following categories: T nonimmigrant status, U nonimmigrant status, or continued presence. T status is offered to noncitizens who are victims of severe forms of human trafficking. U status is offered under the Violence Against Women Act of 2000 to victims who have suffered physical or mental abuse as a result of a qualifying crime (including human trafficking) and are cooperating with law enforcement or government officials investigating or prosecuting those crimes. Those with T or U status can be offered a path to permanent residency. Finally, though continued presence is not an immigration status, if can offer victims protection from removal proceedings.

Congressional Research Service (CRS): Temporary Protected Status: Overview and Current Issues, Updated October 26, 2020

This report is an updated overview of Temporary Protected Status (TPS). TPS allows foreign nationals to live and work in the U.S. when they cannot be safely returned to their country of origin. The U.S. currently provides TPS to approximately 411,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Unaccompanied Migrant Children (UACs)

This resource provides information on unaccompanied children arriving at the border. It describes why these children come alone to the border, the particular challenges they face, and the legal protections offered to them.

Fact Sheet: Temporary Protected Status

This fact sheet provides an explanation of what Temporary Protected Status is and who is eligible to receive it and includes a summary of how many immigrants living in the U.S. have TPS. The fact sheet also provides an overview of current ongoing litigation and policy changes surrounding TPS.

Public Charge Regulation Summary

This summary provides an overview of the Trump administration’s final rule that would redefine the meaning of the legal term “public charge.” Under the new, broadened definition of “public charge,” immigrants applying for a green card, an immigrant visa, or a temporary visa may be rejected if they have previously accessed or are deemed likely to rely on certain forms of public assistance.

* * *

*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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