Legislative Bulletin – Friday, October 30, 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

S.4874

The Visa Security Expansion Act

The bill would expand the Department of Homeland Security’s Visa Security Program to additional U.S. embassies and consulates. The Visa Security Program provides the State Department with additional counterterrorism personnel to assist with the vetting and screening of nonimmigrant visa petitioners.

Sponsored by Senator Margaret Wood Hassan (D-New Hampshire) (1 cosponsor — 1 Republican, 0 Democrats)

10/26/2020 Introduced in the Senate by Senator Hassan

10/26/2020 Referred to the Senate Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will not be in session the week of Monday, November 2, 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

Additional Reports Expose Pattern of Unnecessary Gynecological Treatments at Georgia ICE Facility

According to an October 27 news report, the number of women held at the Georgia Irwin County Detention Center who say they underwent medically unnecessary gynecological treatments has risen to 57. The findings were reportedly submitted to Senators in a closed-door meeting set up by the Senate Democratic Caucus with attorneys representing the women. The report notes that 17 of the confirmed patients remain detained at the Irwin detention facility, while at least 5 of the women have been deported. The status of the remaining 35 women is still being determined.

According to a second October 27 news report, a panel of eleven outside experts (nine board-certified obstetrician-gynecologists and two nurses) reviewed available medical records and concluded that at least 19 women in the Georgia immigration detention center had experienced a similar pattern of “unwarranted or medically aggressive treatment” by Dr. Mahendra Amin, who was contracted by the facility. The panel found that women were pressured to have invasive or aggressive medical procedures “without a discussion of risks, benefits or alternatives.” Some, but not all, of the patients documented in the records underwent partial or full hysterectomies. The panel noted that only one woman signed a consent form for a procedure, but it was in English, a language she did not speak.

The two reports come amid ongoing investigations into a September 14 whistleblower complaint alleging that numerous detainees at Irwin were subjected to medical negligence and neglect, including a high rate of unwanted invasive surgeries.

Irwin is not the only detention facility currently under investigation for mistreatment of detainees. An investigation by the Department of Homeland Security’s (DHS) Office of Inspector General (OIG) found numerous problems in detention centers that were housing migrants in two fast-track deportation programs. The two programs — the Humanitarian Asylum Review Process (HARP) and Prompt Asylum Claim Review (PACR) — were created to quickly screen Mexican and Central American asylum seekers at the Southwest border. The draft report noted that migrant families were kept in custody for extended periods of time, that bathroom spaces provided limited privacy, and that young girls were detained in the same space as unrelated adult men.

Administration Officially Sets 2021 Refugee Admissions Ceiling at 15,000

On October 27, the Trump administration officially set the refugee admissions ceiling for Fiscal Year (FY) 2021 at 15,000. The number marks a record low, 20% below the previous historically low limit of 18,000 set by the administration in FY 2020.

The presidential determination setting the admissions ceiling also limits resettlement by category of refugee, allocating 5,000 slots to those fleeing religious persecution and 4,000 slots to Iraqis who assisted U.S. forces. Additional categories include 1,000 slots for refugees from El Salvador, Guatemala, and Honduras, and the remaining 5,000 slots for a varied group including refugees hoping to join family already in the U.S., refugees from Hong Kong, and refugees who have already gone through the screening and vetting process and are in “Ready for Departure” status.

The determination further specifies that most refugees from Syria, Somalia, and Yemen will not be eligible for resettlement because they are from “high-risk areas of terrorist presence or control.” As many as 1,000 refugees who were ready to be resettled in the U.S. may now be declared ineligible due to these restrictions.

Immigration advocates, faith leaders, and rights organizations have criticized the reduced and restricted ceiling. The president of Bethany Christian Services, an organization which resettles refugee children, called the decision a “black eye on our history.” Elizabeth Neumann, former Assistant Secretary for Terrorism at the Department of Homeland Security said that, “the administration’s approach to refugees is not based on security. It has to do with the larger effort to keep out the other.”

Trump Administration Proposes New Rule to End H-1B Visa Lottery

On October 28, the Trump administration announced a proposed rule restricting the H-1B nonimmigrant visa program for high-skilled “specialty occupations.” The proposed rule would end the H-1B visa lottery, which is used each year to winnow over 200,000 applicants to just 85,000 accepted. Instead, the administration proposes to create a ranking system for H-1B petitions based on salary-level, starting with the highest and working down.

Currently, the H-1B program sets a minimum required wage, which for each occupation is typically divided into four tiers based on the relative experience of the applicant in the field. Under the rule, U.S. Citizenship and Integration Services (USCIS) would grant H-1B petitions first to those at the highest wage level (wage level 4) for the most experienced workers.

Due to its emphasis on high-salaried and highly experienced workers, the proposal may exclude a significant number of international students, who currently rely on the H-1B program as one of the few ways to stay in the U.S. and work after graduation. The rule may also price out employers who need to hire skilled individuals for junior and mid-level positions.

The proposal comes just weeks after the administration issued two interim final rules that also aim to restrict the H-1B program, including a Department of Labor (DOL) wage rule that dramatically increases minimum wage requirements at each of the four wage-levels. On October 16 and 19, three lawsuits were filed challenging both of these rules.

Trump Administration Races to Meet Border Wall Goal

According to an October 23 news report, the Trump administration is scrambling to construct barriers on the Southwest border in order to meet its goal of 450 miles of barriers by the end of 2020. In order to meet the target, the administration is constructing barriers even in areas where unauthorized crossings have been relatively low and where mountainous terrain serves as a natural barrier.

Construction in these more rugged areas have also increased the cost of the project, with new barriers in Guadalupe Canyon, for example, costing approximately $41 million per mile. According to an October 27 news report, a review of federal spending reveals the administration has made a number of modifications to initial border wall contracts, increasing the total cost of construction by billions of dollars.

The construction push has continued even as the project continues to be caught up in legal challenges relating to private property rights and the diversion of defense and military funding to help with rising costs. On October 19, the Supreme Court announced it would take up a challenge to the administration’s use of military funds for wall construction in its 2020-2021 term.

Legal

Court Orders “Binary Choice” to be Implemented for Migrant Families

On October 23, U.S. district judge Dolly Gee, who oversees the treatment of detained immigrant children through the Flores settlement agreement, ordered Immigration and Customs Enforcement (ICE) to finalize procedures to implement binary choice, a policy which requires detained migrant parents to choose between waiving their children’s right to be released and remaining in detention indefinitely or agreeing to be separated from their children so the children can be released to a sponsor or foster home.

The ruling comes months after Judge Gee previously ruled all children who had been held for longer than 20 days must be released from ICE family detention centers, concluding that the centers were “on fire” with the coronavirus pandemic. The judge does not have jurisdiction over the parents, and ICE has refused to release the parents along with the children. The result was an extended standoff, during which attorneys representing the families have repeatedly argued the government should release families together, as was common practice in past administrations. However, the attorneys said they are close to an agreement with ICE over the implementation of a binary choice policy.

In the ruling to finalize binary choice, Judge Gee referenced recent reports that the administration has been unable to reunite 545 children who were separated from their parents in 2017. She cautioned against similar circumstances in this case, stating, “I don’t want some bureaucratic snafu requiring another large effort to put children back in touch with their parents.”

8th Circuit Rules TPS Holders are Eligible for Green Cards

On October 27, a split Eighth Circuit panel ruled that individuals with Temporary Protected Status (TPS) may be eligible for permanent resident status, regardless of how they initially entered the country. The majority panel said that the Immigration and Nationality Act (INA) requires the government to consider TPS as admission into the U.S. “for purposes of adjustment of status.” According to the ruling, TPS beneficiaries should be classified as nonimmigrants under the Immigration and Nationality Act, and as such should be considered “inspected and admitted,” regardless of how they entered the country. Only TPS beneficiaries who have an alternate pathway to lawful permanent residence would be eligible to adjust status under the ruling.

Prior decisions have revealed a circuit split, in which the Third and Eleventh Circuits have disagreed with the Eighth Circuit’s decision and ruled that TPS recipients should not be considered “inspected and admitted.” However, the Sixth and Ninth Circuits have previously agreed with the Eighth Circuit on the matter.

The decision comes after the Trump administration has moved to end TPS protections for individuals from six countries.  On September 14, the Ninth Circuit ruled that the Trump administration acted within its authority to end those protections, and as a result, approximately 300,000 individuals are set to lose TPS in 2021.

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.

Judge Orders ICE to Release Over 250 Detainees

On October 13, a U.S. District judge in California ordered the state’s largest ICE detention facility to release over 250 migrant detainees for health reasons. Under the ruling, the facility, located in the city of Adelanto, was required to release over 50 migrants a day until the total number of detainees dropped from 772 to 475.

This order comes after a lawsuit spearheaded by the ACLU alleged that ICE had failed to take appropriate measures to reduce overcrowding and prevent the spread of COVID-19 within the facility. According to the suit, detainees were required to sleep in bunk beds no more than three feet apart, sharing cells with four to eight people. Detainees were further made to share toilets, sinks and showers without being provided sanitizer or disinfectant before or after use. ICE has reported that 162 detainees in Adelanto, or roughly 20% of the current detainee population, have tested positive for the virus.

Pursuant to the order, 250 detainees have been released from the Adelanto detention center. On October 27, ICE criticized the ruling, stating that it has “resulted in the release of dangerous criminal aliens into various communities.” In response, a representative for the ACLU said that “everyone released either had no criminal convictions or had finished serving their time.”

GOVERNMENT REPORTS

Congressional Research Service (CRS): Immigration Detainers: Background and Recent Legal Developments, October 9th, 2020

This report from the Congressional Research Service describes recent legal developments on immigration detainers. The report defines and provides a background on detainers, which are requests from Immigration and Customs Enforcement (ICE) to state and local law enforcement officials to hold foreign nationals in their custody for up to 48 hours after the individual would otherwise have been released. Detainers are issued to facilitate deportations of the individuals.

Congressional Research Service (CRS): Immigration Parole, October 15, 2020

This report outlines the practice of immigration parole and its uses and limitations. The report further describes various parole categories, the legality of immigration parole, as well as controversies surrounding the provision of parole. Immigration parole officially allows the parolee to enter and temporarily remain in the United States, and parolees are permitted to access work authorization.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

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.

Statement for the Record: “The Expansion and Troubling Use of ICE Detention”

This resource describes the consequences of excessive overuse of immigration detention by ICE. It argues that alternatives to detention (ATDs) are cheap and effective and should be used more as detention rates fall.

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.

* * *

*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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