Legislative Bulletin — Friday, October 1, 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. 5305

Extending Government Funding and Delivering Emergency Assistance

The bill would extend government funding through December 3. Concerning the evacuation of Afghan allies, the bill would allocate $6.3 billion in emergency assistance to help resettle Afghan refugees in the United States. In addition to funding, the bill would provide Afghan parolees access to benefits given to refugees and SIV holders, and it would expedite asylum adjudications for parolees without other paths to legal status. The bill would also direct the Secretary of Homeland Security to submit to Congress a report on the status of Afghan evacuees.

Sponsored by Representative Rosa L. DeLauro (D-Connecticut) (0 cosponsors)

09/21/2021 Introduced in the House by Representative DeLauro

09/21/2021 Referred to the House Committees on Appropriations, Budget, and Ways and Means

09/21/2021 Resolution agreed to in the House of Representatives by a 220-211 vote.

09/30/2021 Resolution agreed to in the Senate by a 65-35 vote.

09/30/2021 Signed by the President.

H.R. 5347

Alternatives to Detention Act of 2021

The bill would require the Secretary of the Department of Homeland Security to use alternatives to detention for certain vulnerable immigrant populations, including asylum seekers, victims of trafficking, pregnant and nursing women, children under 21, immigrants older than 60, LGBT immigrants, and immigrants with a mental disorder or physical disability. The bill would also require DHS to restore the Family Case Management Program to provide community support services to detained immigrants. This is a companion bill of S. 2795.

Sponsored by Representative Anthony Brown (D-Maryland) (5 cosponsors— 5 Democrats, 0 Republicans)

09/23/2021 Introduced in the House by Representative Brown

09/23/2021 Referred to the House Committee on the Judiciary

H.R. 5376

To provide for reconciliation pursuant to title II of S. Con. Res. 14.

The bill would provide grants for tuition-free community colleges, student financial assistance, and child care to certain individuals, including immigrants. The bill would also adjust the immigration status of Dreamers to grant them legal permanent residence. It would also recapture unused employment-based, family-sponsored, and diversity green cards. The bill would also appropriate $2.8 billion to USCIS to reduce case processing backlogs

Sponsored by Representative John Yarmuth (D-Kentucky) (0 cosponsors)

09/27/2021 Introduced in the House by Representative Yarmuth

09/27/2021 Referred to the House Committee on the Budget

H.R. 5399

National Security and Federal Lands Protection Act

The bill would grant U.S. Customs and Border Protection (CBP) access to environmentally protected federal lands along the border. The bill would also promote and protect legal land use, such as farming, ranging, and recreational hunting along the southern border.

Sponsored by Representative Lance Gooden (R-Texas) (6 cosponsors— 6 Republicans, 0 Democrats)

09/28/2021 Introduced in the House by Representative Gooden

09/28/2021 Referred to the House Committees on Natural Resources, Agriculture, and Homeland Security

H.R. 5404

Taliban Rare Earth Minerals Sanctions Act

The bill would prohibit the issuance of any type of visas to individuals engaged in Afghanistan’s rare earth mineral sector.

Sponsored by Representative Gregory Steube (R-Florida) (13 cosponsors— 13 Republicans, 0 Democrats)

09/28/2021 Introduced in the House by Representative Gooden

09/28/2021 Referred to the House Committees on Foreign Affairs and the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session the week of October 4, 2021.

UPCOMING HEARINGS AND MARKUPS

Hearing on Afghanistan 2001-2021: Evaluating the Withdrawal and U.S. Policies – Part II

Date:  Tuesday, October 5, 2021, at 1:00 pm E.T. (House Committee on Foreign Affairs)

Location: TBD

Witnesses:

Honorable Richard L. Armitage, Former Deputy Secretary of State

Honorable Herbert Raymond McMaster, Former National Security Advisor

Honorable Ryan C. Crocker, Former U.S. Ambassador to Afghanistan

THEMES IN WASHINGTON THIS WEEK

Federal

Senate Parliamentarian Rules Against Registry Update in Budget Reconciliation Bill

On September 29, the Senate Parliamentarian ruled against the Democrats’ alternative proposal to provide a pathway to citizenship for immigrants – including Dreamers, Temporary Protected Status (TPS) holders, and essential workers – by updating the registry date in the proposed budget reconciliation bill. The registry date, which has not been updated since the Reagan administration, is a provision of immigration law that allows immigrants to apply for lawful permanent status provided they entered the U.S. before a particular date. This effectively dead-letter provision, currently with a cut-off of  January 1, 1972, would have been updated to January 1, 2010, under the Democratic proposal.

Earlier in September, the Parliamentarian ruled against the Democrats’ initial plan to include legalization provisions in the budget reconciliation bill, which cannot be filibustered and can be passed with a simple majority. In that ruling, the Parliamentarian acknowledged the fiscal benefits of providing a pathway to citizenship to almost eight million people in the United States, but she argued that the proposed policy changes “far outweigh the budgetary impact scored to it.” In her ruling on the registry date shift, she wrote that “the number of beneficiaries and score of this amendment… are largely the same as those of the earlier proposal which does not dramatically shift the balance of policy vs. score,” and similarly determined that the proposal was not primarily budget-related and could not be appropriately included in reconciliation.

The Parliamentarian’s ruling arrived as Congressional Democrats reached an impasse over the proposed $3.5 trillion reconciliation package of Biden administration climate, taxation, and healthcare priorities, as well as an accompanying bipartisan infrastructure bill. Moderate Democratic lawmakers warned that if the House did not vote on the $1.2 trillion bipartisan infrastructure bill by September 30, they would refuse to support any reconciliation proposal. In turn, progressive House Democrats threatened to vote down the infrastructure bill if the vote was held before the reconciliation bill was completed, out of concern that moderates would abandon the larger reconciliation package if it was decoupled from the infrastructure proposal.  On the evening of September 30, the House delayed a vote on the bipartisan infrastructure bill as House and Senate Democrats continued to negotiate the reconciliation package. As the Democratic negotiations continue, the inclusion of scaled-down immigration provisions that could survive a Parliamentarian’s ruling remains uncertain.

DHS Releases New Immigration Enforcement Priorities

On September 30, U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas released new immigration enforcement priorities that continued to emphasize threats to national security, public safety, and border security, while increasing the role of DHS officials in utilizing prosecutorial discretion to obtain just outcomes.

The guidelines shift how the department will employ prosecutorial discretion, moving away from rigid enforcement categories in favor of individualized assessments. The memorandum spelling out the priorities noted that unauthorized status, on its own, will not be the basis for enforcement actions and set out a series of aggravating factors and mitigating factors to be considered by decision-makers as they are determining the proper enforcement action.

The memorandum also acknowledged the contributions of immigrants and included language protecting the civil rights and civil liberties of noncitizens while also safeguarding against the use of immigration enforcement as retaliation for those asserting their legal rights.

International Organizations Express Concern Over Biden Administration’s Mass Deportations of Haitians from U.S.-Mexico Border

On September 30, the United Nations Refugee Agency (UNHCR), the U.N. Office of Human Rights, the International Organization for Migration (IOM), and U.N. Children’s Fund (UNICEF) expressed their concern over the rapid, mass expulsions of Haitians without screening for protection needs. The four international agencies argued that the deportations are inconsistent with international norms, and called on the United States to uphold fundamental human rights of Haitian migrants. They also insisted on the need to offer effective access to regular migration pathways. The agencies’ statement came in response to the thousands of deportations of Haitian migrants who have been expelled in the last two weeks under an emergency pandemic-era policy known as Title 42.

On September 29, the Biden Administration completed the 50th flight filled with deported migrants to Haiti, a country that has been in turmoil after a 7.2 magnitude earthquake and the recent assassination of its president.

Congress Votes for Aid to Afghan Evacuees in Bipartisan Continuing Resolution

On September 30, bipartisan majorities of the House and Senate voted for a continuing resolution to avert a government shutdown, and, among other things, provided for supplemental funding to support Afghan evacuees who are being relocated to the U.S. The bill included $6.3 billion in supplemental funding for Afghan resettlement, as well as benefits for Afghan parolees who were admitted to the U.S. under humanitarian parole and are not technically deemed “refugees.”

Afghan resettlement has drawn significant support across party lines. On September 22, the National Immigration Forum released the results of a poll demonstrating significant cross-partisan support for people seeking refuge in the U.S., including Afghan evacuees. The poll revealed that 61% of Republicans, 63% of Independents, and 75% of Democrats agree “that the United States should have a legal, secure process in place to take in people from oppressed or war-torn countries, such as Afghanistan.”

The resettlement effort has drawn support from noteworthy Republican leaders, including at least nine Republican governors who offered support to resettle Afghan refugees in their states. For example, Governor Doug Ducey (R-Arizona) issued a statement of welcome to the 1,600 Afghans who will be resettled in his state through March 2022.  In his statement, Governor Ducey quoted Ephesians 2:19, which reads, “So then you are no longer strangers and sojourners, but you are fellow citizens with the holy ones and members of the household of God.” While a faction of former Trump administration officials and others have advocated to oppose welcoming Afghan allies and other evacuees, public opinion remains firmly in favor of allowing Afghans who fled to seek protection in the U.S.

Legal

Biden Administration Announces Intention to Issue New Memo Terminating MPP

On September 29, the Department of Homeland Security (DHS) announced its intention to issue a new memorandum terminating the Migrant Protection Protocols (MPP), also referred to as the “Remain in Mexico” program. The policy, first introduced by the Trump administration in 2019, requires migrants seeking asylum along the southern border to wait in Mexico while their claims are adjudicated, a process that often takes months or years.

The Biden administration ended MPP in February through a one-paragraph memorandum, but a federal judge in Texas ruled on August 13 that the termination of MPP violated the Administrative Procedures Act (APA). After the U.S. Supreme Court declined to stay the ruling on August 24, to comply with the court order the Biden administration initiated negotiations with Mexico to reinstate the program.  After those negotiations failed to lead to a bilateral agreement, the administration issued the new memorandum terminating MPP, which is intended to address the APA issued raised by the district court and will not take effect until the current injunction is lifted.

U.S. District Judge Orders U.S. State Department to Reserve 966 Diversity Visas Beyond the End of the Fiscal Year

On September 27, a U.S. District Court Judge ordered the U.S. State Department to reserve 966 diversity visas beyond the end of the fiscal year, which is September 30. The decision comes amid an Administrative Procedure Act case against the department’s refusal to process diversity-visa applications from countries subject to COVID-19 entry bans, between October 2020 and March 2021. In her opinion, the judge considered that the State Department’s “decision not to process diversity visas for the first six months of the fiscal year was not taken in consideration of employees’ health — it was taken based on an erroneous interpretation of the law.” The judge determined that 966 visas was a reasonable estimate of how many visas could have been processed during the No-Visa policy. Therefore, she ordered the State Department to reserve 966 visas past the end of the fiscal year.

U.S. Court of Appeals for the D.C. Circuit Preserves Biden Administration’s Use of Title 42

On September 30, the U.S. Court of Appeals for the D.C. Circuit granted the U.S. Department of Homeland Security’s request to stay a district court order that blocked the administration from removing migrant families under Title 42. Title 42 is a public health order based on a 1944 statute that both the Trump and Biden administrations have used during the COVID-19 pandemic to rapidly expel over a million arriving migrants without providing them the opportunity to seek asylum.

The policy has been widely criticized by advocacy groups, international organizations, and Democratic lawmakers. They argue that deportations under Title 42 are inconsistent with international norms and fail to uphold the fundamental human rights of migrants.

State & Local

District Court Orders Texas to Release 243 Immigrants from Immigration Detention

On September 27, Texas 63rd District Court ordered the state to release 243 migrants who had been arrested under charges of criminal trespassing for allegedly crossing the border between ports of entry. The court ordered the release of the immigrants because the state failed to file criminal charges against them in time.

The controversial enforcement strategy came after Governor Greg Abbott (R-Texas) issued a disaster proclamation at the U.S.-Mexico border and introduced “Operation Lone Star” on July 21 to “combat the smuggling of drugs and people into Texas.” The effort to effectively criminalize immigration violations has led to the detention of over 1,000 migrants, many of whom have been held for weeks without being charged and/or receiving legal counsel. The state has converted two state prisons into immigrant detention facilities to house these migrants.

Lawyers and civil rights advocates have raised concerns that arrests under the initiative may not be legal, noting that immigration enforcement is the sole responsibility of the federal government. Critics have also argued that this program unfairly targets Mexican and Central American men. Additionally, many attorneys of detained Spanish-speaking migrants have claimed that their clients were forced to sign English language forms waiving their rights to representation and acknowledging that they have been informed of their rights.

Nominations & Personnel

Senate Finance Committee Will Begin Advancing the Nomination of Chris Magnus to be CBP Commissioner

On September 29, Senator Ron Wyden (D-Oregon), Chairman of the Senate Finance Committee, announced he would schedule a hearing for Tucson, Arizona Police Chief Chris Magnus to lead U.S. Customs and Border Protection (CBP). The announcement came two months after Senator Wyden notified the White House that he would stall the hearing until the Department of Homeland Security (DHS) and the Department of Justice (DOJ) answer questions related to the use of federal agents against protestors in Portland following the murder of George Floyd.

If confirmed, Chief 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’s nomination has drawn support from law enforcement officials around the country.

Biden Administration Announces Appointments of David Neal as Director of the Executive Office for Immigration Review and Kerry Doyle as ICE’s Principal Legal Advisor

On September 24, Attorney General Merrick Garland announced the appointment of David  Neal as Director of the Executive Office for Immigration Review (EOIR) at the U.S. Department of Justice. In his new role, Neal will be responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer, and all agency personnel. Between 2009 and 2019, Neal served as Chairman of the BIA before departing under the Trump administration when a number of immigration judges resigned in response to the administration’s policies.

Two days earlier, on September 22, the Biden Administration appointed immigration attorney Kerry Doyle as U.S. Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor. In her new role, Doyle became ICE’s top prosecutor with authority to decide whether immigrants are released from detention, what financial amounts — or bonds — are set for them to be released, or whether a lawsuit gets postponed.

GOVERNMENT REPORTS

Department of Homeland Security – Office of the Inspector General (OIG): CBP Continues to Experience Challenges Managing Searches of Electronic Devices at Ports of Entry, September 23, 2021

This report highlighted challenges U.S. Customs and Border Protection (CBP) faces in managing searches of electronic devices at ports of entry. Specifically, the DHS Office of the Inspector General (OIG) found that CBP does not properly document and conduct searches of electronic devices, fully assess the effectiveness of the electronic device search program, or adequately manage electronic device search equipment.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Unused Green Card Recapture

This fact sheet explains, in simple terms, what green card recapture means. 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. To tackle the backlog – and consequently trigger economic growth – policy analysts and immigration advocates have suggested recapturing the unused green cards accumulated over the past three decades, going back to 1992.

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: Pathways to Protection for Afghans at Risk

This resource provides a comparison between the SIV status, the P2 refugee program, and Humanitarian Parole. It also summarizes the eligibility requirements for each pathway and notes the different application timelines and vetting procedures. The fact sheet also describes what we know about the numbers resettled so far under each pathway and what benefits they receive.

* * *

*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 acastellanos@immigrationforum.org. Thank you.

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