Legislative Bulletin – Friday, October 4, 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. 4378

Continuing Appropriations Act of 2020, and Health Extenders Act of 2019

This bill funds the federal government at the current spending levels from October 1, 2019, the beginning of fiscal year (FY) 2020, through November 21, 2019.

Sponsored by Representative Nita Lowey (D-New York) (0 cosponsors)

09/18/2019 Introduced in the House by Representative Lowey

09/18/2019 Referred to the House Committees on Appropriations and on the Budget

09/19/2019 Passed in the House by a 301 to 123 vote

09/26/2019 Passed in the Senate by an 81 to 16 vote

09/27/2019 Signed by President Trump

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in recess until Tuesday, October 15, 2019.

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

Report: President Trump Allegedly Proposed Draconian Border Measures

According to an October 1 report by the New York Times, President Trump made controversial and inflammatory statements on border security in private meetings, reportedly suggesting violent and draconian measures to deter migrants from crossing the Southern border. According to the report, President Trump proposed fortifying border barriers with a water-filled trench stocked with snakes or alligators and suggested that U.S. soldiers should deter migrants from crossing the U.S.-Mexico border by shooting at their legs. He also appeared to suggest that the border barriers be electrified and feature spikes on top that would impale attempted climbers. The discussions reportedly prompted aides to seek a cost estimate. President Trump also indicated in private conversations that he would close the U.S.-Mexico border if the number of Central American migrants coming to the U.S. did not decline. On October 2, President Trump denied the reports, saying “I may be tough on Border Security, but not that tough.”

Reports of President Trump’s private comments come as DHS acting-Secretary Kevin McAleenan stated that he retains “operational” control of the department but he “does not have control [over] the tone, the message, the public face and approach.”

Justice Department Plans to Issue Proposed Rule to Collect DNA from Migrants

The U.S. Department of Justice (DOJ) reportedly plans to publish a proposed rule to require the collection of DNA from immigrants apprehended after crossing the U.S.-Mexico border and/or placed in immigration detention facilities. The rule would require the Department of Homeland Security (DHS) to collect cheek swabs and send them to a national criminal database operated by the DOJ’s Federal Bureau of Investigation (FBI). The database currently houses DNA samples from people accused of committing serious crimes. DOJ and DHS are in the process of setting up a task force to resolve the operational difficulties of collecting DNA samples from potentially hundreds of thousands of immigrants in DHS custody each year. The effort will reportedly require a more comprehensive DNA sample than the existing sampling used on migrant families to ensure the adults are related to children traveling with them.

DOJ officials said the proposed rule would help the federal government identify immigrants who commit crimes in the future and result in better compliance with the DNA Fingerprint Act of 2005, which requires the collection of biometric information from specific populations, including individuals with criminal records and undocumented immigrants. However, the law provides the DHS Secretary discretion to waive the requirement to collect information on certain populations. Immigration and civil rights advocates argue the proposed rule, which would result in the collection of DNA samples from immigrants who have not committed crimes, amounts to a significant violation of privacy and could result in discriminatory profiling by law enforcement agencies that have access to immigrant DNA records.

DOJ Reportedly Considering New Restrictions on Asylum for UACs

According to Buzzfeed News, DOJ is considering a proposed rule that would make it harder for unaccompanied migrant children (UACs) to obtain asylum in the U.S. The proposed rule would reportedly require UACs to apply for asylum within two months after they first arrive in the U.S., which is less time than adults are afforded when they bring asylum claims. Currently, children can apply for asylum at any time, and adults are required by statute to apply for asylum within one year after entering the U.S.

Immigration lawyers noted that the two-month deadline under consideration would make it harder for deserving UACs to obtain asylum because there would not be sufficient time to build effective cases, which often requires researching the child’s background, interviewing family members in other countries, and compiling the relevant documents.

Legal

Federal Judge Blocks Trump Administration’s Expansion of Expedited Removal

On September 27, U.S. District Judge Kentaji Brown Jackson blocked the Trump administration from expanding the application of expedited removal, which would have permitted immigration officers to deport more undocumented immigrants apprehended in the United States without going through the U.S. immigration court system. Judge Jackson ruled that the process used by the administration to expand the policy violated procedural requirements under the Administrative Procedure Act (APA) to seek public comment. She also noted that, by skipping the public comment period, the Department of Homeland Security (DHS) failed to consider and address existing flaws in the implementation of expedited removal at the U.S. borders, noting that the expanded policy’s “potential devastation is so obvious that [DHS] can be fairly faulted for its unexplained failure to predict, and attempt to mitigate, the fully foreseeable future floods.” Immigration advocates lauded the decision, arguing that it will prevent erroneous deportations by preventing more individuals from being deported without an immigration court hearing. The Trump administration is expected to appeal the ruling.

Under current expedited removal guidelines, immigration officials can rapidly deport undocumented immigrants without an immigration court hearing if the individuals are apprehended within 100 miles of the U.S. border and cannot prove they resided in the U.S. for at least two weeks. The Trump administration published a notice in the Federal Register on July 23 significantly expanding expedited removal to undocumented immigrants who are apprehended anywhere within the United States and cannot prove they resided in the U.S. for more than two years, if they originally entered the U.S. unlawfully. Judge Brown Jackson’s ruling blocked the policy shift, while leaving current expedited removal guidelines in effect in areas within 100 miles of the U.S. borders.

Federal Judge Blocks Final Rule that Permits Long-Term Family Detention

U.S. District Judge Dolly Gee issued an injunction on September 27 blocking the Trump administration’s final rule that would have permitted the indefinite detention of migrant families. The rule would have eliminated key protections for migrant children that the federal government agreed to in the 1997 Flores settlement agreement. Judge Gee said the new regulations “fail to implement and are inconsistent” with the terms of the Flores settlement agreement and that she is bound by contract law to “enforce an agreement the parties agreed to.” Judge Gee also said Congress, not the executive branch, can fully supplant the Flores settlement agreement. She called the government’s defense of the rule “Kafkaesque.” The White House criticized the ruling, saying it provides an “end-round around the detention and removal system,” while advocates said the ruling would protect children from “the worst excesses of immigration-related detention.” The ruling, which was first reported as a preliminary decision early on September 27, is likely to be appealed.

The final rule, published on August 23, would permit children to be held with their parents during the pendency of immigration proceedings, which regularly take several months, if not longer. Under the Flores settlement agreement, children cannot be kept in immigration detention for longer than 20 days. The rule would also end existing Flores requirements that facilities holding immigrant children, including family detention facilities, be state-licensed, creating a new alternative federal licensing scheme. The Trump administration is proposing the rule under a 2001 stipulation to the Flores Settlement Agreement, which terminates the agreement following the promulgation of final regulations “implementing” the rule.

Federal Judge Blocks ICE from Issuing Immigration Detainers Based on Flawed Databases

U.S. District Judge Andre Birrote Jr. issued a permanent injunction on September 27 blocking Immigration and Customs Enforcement (ICE) from solely relying on databases “to determine a person’s removability” and from issuing immigration detainers to state and local law enforcement officials in states where there is not a statue permitting civil immigration arrests on detainers. Judge Birrote argued in the ruling that the databases often contained “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.” The decision affects any detainers issued out of the Central District of California. The Pacific Enforcement Response Center, a facility in Orange County, California in the Central District, is an ICE facility from which agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C. An ICE spokesperson said the agency is “currently reviewing the ruling and considering our legal options.” ICE lodged more than 160,000 detainers in fiscal year (FY) 2019 with local law enforcement agencies.

Immigration detainers are federal requests to state and local law enforcement agencies to detain individuals suspected of being in the U.S. unlawfully. Detainers are the subject of extensive litigation and political controversy, with several federal courts previously determining that jurisdictions which elect to honor them may face civil liability in cases where someone has been improperly kept in custody beyond the time they would otherwise be held, in violation of their rights. A report from March 20, 2019 identified 420 cases in Miami-Date Country, Florida in which ICE mistakenly issued detainer requests for U.S. citizens.

Union Representing Immigration Judges Files Labor Complaints Against Justice Department

The National Association of Immigration Judges, the union representing the nation’s 420 U.S. immigration judges, filed two labor complaints on September 27 against the Department of Justice (DOJ) over incidents in August 2019. The first complaint came in response to the DOJ filing a petition to decertify the union on August 19. The DOJ’s petition came after the union sought clarification from the DOJ in the course of contract negotiations about whether immigration judges are regular employees or managers. The second complaint is in response to a newsletter from the DOJ’s Executive Office for Immigration Review (EOIR) to all employees that included a link to a blog post on a white nationalist website. The blog post reportedly attacked immigration judges by describing them using several racial and ethnic slurs.

The two complaints are the most recent efforts in a continuing conflict between the immigration judge’s union and the DOJ. The Trump administration has recently sought to overhaul multiple aspects of the U.S. immigration court system, including changes to expand the power of the director of EOIR to issue rulings on immigration appeals cases, setting quotas on the number of cases immigration judges must complete each year (only a third of judges are on track to meet the goal), curtailing the ability of immigration judges to administratively close certain cases, restricting grants of asylum based on family ties and for victims of domestic violence or gang violence, and reopening thousands of previously closed cases. Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, noted that immigration judges are now “completely deprived in their practice to exercise independent decision-making” and in “constant fear and a constant state of duress.”

GOVERNMENT REPORTS

U.S. Department of Homeland Security (DHS) Office of Inspector General (OIG): Investigation of Alleged Violations of Immigration Laws at the Tecate, California, Port of Entry by U.S. Customs and Border Protection Personnel (September 26, 2019)

This report substantiates factual allegations that, contrary to United States law, U.S. Customs and Border Protection (CBP) officers at the Tecate, California Port of Entry starting in late 2017 or early 2018 returned asylum seekers from inside the U.S. to Mexico and instructed them to go to other ports of entry to request asylum. The report also found that CBP officers at Tecate generally refer most asylum seekers to go to other ports and do not create records when they instruct individuals to go to other ports to request asylum.

U.S. Government Accountability Office: Immigration Benefits: Additional Actions Needed to Address Fraud Risks in Program for Foreign National Victims of Domestic Abuse (September 30, 2019)

This report reviews potential fraud risks under the Violence Against Women Act (VAWA) self-petition program for undocumented victims of domestic abuse by a U.S. citizen or lawful permanent resident (LPR) family member. The report includes a set of recommendations for U.S. Citizenship and Immigration Services (USCIS) to better detect potential instances of fraud.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

A Path to Public Safety: The Legal Questions Around Immigration Detainers

This report provides an overview of Immigration and Customs Enforcement (ICE) detainers and explains the legal complications that often prevent local law enforcement jurisdictions from honoring immigration detainers.

Expanded Expedited Removal

This is a summary and short discussion of the Trump administration’s new guidance expanding expedited removal to apply to most undocumented persons who entered the United States between ports of entry and cannot prove they have resided in the U.S. for more than two years.

Summary of Proposed Regulations Regarding Children and Immigration Detention

This summary provides an overview of the Trump administration’s proposed regulation to modify key elements of the Flores settlement agreement and permit the long-term detention of children.

* * *

*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 Legislative Bulletin - Friday, November 15, 2019

Legislative Bulletin

Legislative Bulletin - Friday, November 15, 2019

Read more about Analysis: Executive Order on Enhancing State and Local Involvement in Refugee Resettlement

Article

Analysis: Executive Order on Enhancing State and Local Involvement in Refugee Resettlement

Read more about New Report Highlights Innovative Strategies in Workforce Development

Press Release

New Report Highlights Innovative Strategies in Workforce Development