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. 9003
Empowering States to Deport Illegal Aliens Act
The bill would authorize states to enforce federal immigration laws, including detention and deportation of foreign nationals.
Sponsored by Representative Paul Gosar (R-Arizona) (0 cosponsors)
09/28/2022 Introduced in the House by Representative Gosar
09/28/2022 Referred to the House Committee on the Judiciary
H.R. 9023
Diverting IRS Resources to the Exigent Crisis Through (DIRECT) Funds for Border Security Act
The bill would rescind all of the unobligated funds under the Inflation Reduction Act for new IRS enforcement activities and reappropriate these funds for CBP to hire additional agents to secure the Southwest border.
Sponsored by Representative Claudia Tenney (R-New York) (13 cosponsors— 13 Republicans, 0 Democrats)
09/28/2022 Introduced in the House by Representative Tenney
09/28/2022 Referred to the House Committees on Appropriations and Ways and Means
H.R. 9052
Fight for the American Dream Act
The bill would allow DACA recipients to enlist in the military and ultimately obtain a pathway to citizenship.
Sponsored by Representative Ruben Gallego (D-Arizona) (1 cosponsor— 1 Democrat, 0 Republicans)
09/29/2022 Introduced in the House by Representative Gallego
09/29/2022 Referred to the House Committees on Armed Services and the Judiciary
H.R. 9128
To amend section 287(g) of the Immigration and Nationality Act to clarify congressional intent with respect to agreements under such section
Sponsored by Representative Michael Cloud (R-Texas) (4 cosponsors— 4 Republicans, 0 Democrats)
10/04/2022 Introduced in the House by Representative Cloud
10/04/2022 Referred to the House Committee on the Judiciary
LEGISLATIVE FLOOR CALENDAR
The U.S. Senate and U.S. House of Representatives will not be in session the week of October 10, 2022.
UPCOMING HEARINGS AND MARKUPS
There are no immigration-related hearings scheduled for next week.
THEMES IN WASHINGTON THIS WEEK
Legal
Fifth Circuit Rules that DACA is Unlawful but Maintains Protections for Current DACA Recipients
On October 5, the U.S. Fifth Circuit Court of Appeals ruled against the Deferred Action for Childhood Arrivals (DACA) program, siding with U.S. District Judge Andrew Hanen’s earlier ruling that the policy is unlawful. DACA — first implemented in a June 2012 memorandum — is a policy designed to protect qualifying undocumented immigrants who came to the U.S. as children, temporarily shielding them from deportation and providing them with work authorization.
The ruling sends the case back to Judge Hanen to determine the legality of the Biden administration’s new rule fortifying DACA, which was designed to put the policy on more solid legal footing and is slated to take effect on October 31. The Fifth Circuit’s ruling, however, allows about 600,000 DACA recipients to maintain their protections pending a likely eventual appeal to the U.S. Supreme Court. However, new DACA applicants and those with applications pending will continue to be blocked from receiving protections.
The case, Texas v. U.S.A., stems from a lawsuit brought by nine Republican-led states, led by Texas, challenging the legality of DACA. While the case proceeds before Judge Hanen and likely ultimately before the Supreme Court, DACA recipients remain at risk of losing protections.
In response to the ruling, President Biden said that “the court’s stay provides a temporary reprieve for DACA recipients, but the lives of Dreamers remain in limbo.” He also urged Congress to pass permanent protections for Dreamers, including a pathway to citizenship. Secretary of Homeland Security Alejandro Mayorkas expressed his disappointment with the ruling and said that the Department of Homeland Security (DHS), along with the Department of Justice, would work on an appropriate legal response.
The ruling also sparked reactions from immigration advocates, faith groups, law enforcement leaders, human rights activists, and business leaders who called on Congress to provide permanent protections for Dreamers.
Federal Court Rules in Favor of Optional Practical Training for Graduating International Students
On October 4, the U.S. Court of Appeals for the D.C. Circuit upheld the legality of USCIS’s Optional Practical Training (OPT) program, specifically as it relates to graduating international STEM students. The case, WashTech v. DHS, stems from a lawsuit filed in 2016 by the Washington Alliance of Technology Workers (WashTech) against the Department of Homeland Security (DHS) for extending to 36 months the on-the-job practical training (OPT) period that allows STEM international students with to remain and work in the U.S. after graduation. In its lawsuit, WashTech alleged that DHS did not have the authority to grant international students OPT nor to extend it for STEM graduates. The court, however, ruled that statutory authority from Congress “amply supports” DHS’s power to grant OPT and to extend it for STEM graduates.
In support of DHS’s authority to grant and extend OPT, a group of 60 major U.S. companies and organizations filed an amicus brief with the court in June 2021. Since 1947, OPT has allowed international students to gain new professionals skills after graduation and share their talents in the American labor market. Non-STEM graduates are permitted 12 months of OPT and, since 2016, STEM graduates are permitted 36 months due to a labor shortage in U.S. STEM fields.
Federal
Biden Administration Resettled 25,465 Refugees in FY 2022, Falling Short of 125,000 Ceiling
Refugee resettlement data released by the State Department on October 5 revealed that the administration resettled a total of 5,546 refugees in September. This puts the total of resettled refugees for FY 2022 at 25,465 – roughly 80% short of the administration’s FY 2022 ceiling of 125,000. However, despite missing the mark by a large margin, there has been some progress as the Biden administration continues to rebuild a resettlement program devastated by COVID-19 and Trump-era restrictions. The final resettlement number for FY 2022 more than doubles that of FY 2021 (11,411). Furthermore, the second half of this past fiscal year allowed for almost twice as many resettlements as the first half.
According to an October 3 report, the Biden administration has also expanded capacity throughout the system to increase resettlement in FY 2023. Domestic capacity to resettle has increased, with 71 new domestic resettlement offices opening in the past 12 months. The administration has also increased personnel at overseas refugee centers by about 600 and conducted 44,000 refugee interviews in FY 2022, up from 9,100 in FY 2021.
Notably, Afghan SIV numbers continued their upward trajectory in September as the country received 2,577 SIVs in the last month of the fiscal year. September SIV numbers were nearly as high as peaks reached during the fall of Afghanistan in the summer and fall of 2021.
Secretary of State Antony Blinken Meets with Colombian, Peruvian, and Chilean Presidents to Discuss Bilateral Agendas, Including Migration
On October 6, Secretary of State Antony Blinken led the U.S. delegation at the General Assembly of the Organization of American States (OAS) in Lima, Peru. As a result of the meeting, 21 countries reiterated their support to advance the four pillars of the Los Angeles Declaration on Migration and Protection: 1) stability and assistance; 2) legal pathways; 3) humane migration management; and 4) emergency response. Foreign ministers and representatives from the 21 endorsing countries presented progress on existing commitments made under the Los Angeles Declaration and announced new initiatives and programs. While in Lima, Secretary Blinken also commended the Peruvian government for hosting more than 1.3 million Venezuelan refugees and migrants and for offering them a pathway to secure a more regular status.
On October 5, Secretary Blinken met with Chilean President Gabriel Boric in Santiago, Chile, to discuss — among various bilateral priorities — joint strategies on migration. Secretary Blinken expressed appreciation for Chile’s hemispheric leadership on migration, as the country hosts roughly half a million Venezuelan migrants and 180,000 Haitians. On October 4, Secretary Blinken met with Colombian President Gustavo Petro in Bogota, Colombia, to talk about migration policies and the challenges that both countries face. In particular, Secretary Blinken commended Colombia’s remarkable generosity to more than 2.4 million Venezuelans displaced by their country’s ongoing humanitarian crisis.
Migrants Fatally Shot in Successive Incidents Near Southwest Border
On October 4, a Border Patrol agent fatally shot a Mexican migrant detained at the Ysleta Border Patrol Station in El Paso, Texas. In the statement that confirmed the death of the migrant, U.S. Customs and Border Protection (CBP) announced that the agency’s Office of Professional Responsibility, along with the Federal Bureau of Investigations (FBI), would review the incident. The Mexican Consulate in El Paso said the man who died was a Mexican citizen who was being processed at the station when criminal charges against him were discovered. According to CBP’s most recent statistics on assaults and use of force, the agency has recorded 17 use-of-force incidents by agency personnel using their firearms during the Fiscal Year 2022. There were 15 such incidents in 2021.
In a separate incident, on September 29, Texas Rangers arrested Michael Sheppard, former warden at the West Texas Detention Center, and his twin brother in connection with a shooting that left one immigrant dead and another injured. The men are accused of opening fire on a group of four migrants who were getting water along the road near El Paso.
Biden Administration Announces Final Rule to Improve H-2A Visa Program
On October 6, the U.S. Department of Labor announced a final rule to amend the H-2A temporary labor certification regulations to better protect agricultural workers’ rights, and to update the H-2A application and labor certification process. The final rule will be published in the Federal Register on October 12, 2022.
Among the main provisions, the final rule aims to improve safety and health protections for workers housed in rental or public accommodations. The rule also streamlines and updates bond requirements for labor contractors and clarifies joint-employer status for employers and associations. In addition, the rule clarifies the housing certification process to allow state and local authorities to conduct housing inspections. The rule also establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations. It also makes electronic filing mandatory for most applications to improve employers’ processing efficiency.
The H-2A program allows employers to address temporary agricultural labor needs by employing foreign workers when there are not sufficient domestic workers who are able, willing, qualified, and available, and when doing so will not adversely affect the wages and working conditions of other workers similarly employed in the U.S.
Detained Migrants at New Mexico Detention Facility Report Retaliation After Reporting Unsanitary Conditions
On September 29, migrants held by U.S. authorities at Torrance County Detention Facility in New Mexico reported retaliation after signing a public letter denouncing the unsafe conditions and mistreatment at the government-run jail and announcing a hunger strike. Unsanitary conditions reported by detainees include broken plumbing, insect infestations, and rationed bottles of drinking water.
Torrance County Detention Facility has a documented history of inhumane conditions and staff misconduct. A report released on September 30 by the Department of Homeland Security’s Office of Inspector General (OIG) corroborates and expands on the migrants’ complaints, identifying multiple standards violations such as inadequate medical care, deficient security, unsanitary conditions, and severe staff shortages. Ongoing staffing vacancies have impacted medical care, including suicide watch, dental care, and chronic care. Additional concerns with the facility, which currently holds approximately 70 detainees, include false and incomplete medical records and empty logbooks meant for tracking important communications and inmate requests.
State and Local
New Hampshire Governor Orders Deployment of 164 National Guard Troops to US-Mexico Border
On October 3, New Hampshire Governor Chris Sununu (R) announced the deployment of two Army National Guard units for one year at the southern border. The 164 soldiers that form the units will be at surveillance sites and will be prohibited from being in contact with undocumented migrants. The troops are also forbidden from serving on federal mobilization, meaning they are unable to participate in many CBP border security actions. Their role will be to notify U.S. Customs and Border Protection (CBP) of any border crossing between ports of entry.
Governor Sununu joins a series of other Republican governors in deploying National Guard troops for brief stints at the border. In the past, troops have been assigned to paint border barriers and have assisted in reconnaissance and surveillance activities. Similar efforts have received significant criticism for providing deployed troops with “zero task or purpose.”
GOVERNMENT REPORTS
U.S. Department of Homeland Security – Office of Inspector General (DHS-OIG); Del Rio Area Struggled with Prolonged Detention, Consistent Compliance with CBP’s TEDS Standards, and Data Integrity; September 29, 2022
This DHS OIG report highlights that four detention facilities in Del Rio Area held 1,164 detainees in custody longer than specified in the National Standards on Transport, Escort, Detention, and Search (TEDS), which generally limit detention in these facilities to 72 hours. The report also shows that three of those facilities were overcrowded. It also notes that the facilities failed to consistently provide showers and interpretation services.
U.S. Department of Homeland Security – Office of Inspector General (DHS-OIG); The DHS Unified Coordination Group for Operation Allies Welcome Coordinated Afghan Resettlement but Faced Challenges in Funding and Authority; September 29, 2022
This DHS OIG report highlights that the Unified Coordination Group (UCG) for Operation Allies Welcome (OAW) faced two key challenges: 1. The absence of direct funding for most DHS OAW activities during the beginning of the operation, and 2. The absence of clear and direct authority for UCG leadership. These challenges affected the UCG’s coordination of the resettlement process. In particular, the UCG had trouble recruiting staff to support OAW and encountered problems procuring needed supplies and equipment.
U.S. Department of Homeland Security – Office of Inspector General (DHS-OIG); The Unified Coordination Group Struggled to Track Afghan Evacuees Independently Departing U.S. Military Bases; September 29, 2022
This DHS OIG report highlights that the Unified Coordination Group (UCG) for Operation Allies Welcome (OAW) struggled to track Afghan evacuees who independently departed U.S. military bases designated as safe havens. Specifically, UCG officials had difficulties documenting when independent departures occurred. In addition, the report highlights that the UCG’s Independent Departure Task Force did not attempt to locate all Afghan evacuees who independently departed safe havens to verify their compliance with parole conditions.
U.S. Department of Homeland Security – Office of Inspector General (DHS-OIG); Violations of ICE Detention Standards at Torrance County Detention Facility; September 28, 2022
This DHS-OIG report identified critical staffing shortages and violations of ICE detention standards that compromised the health, safety, and rights of detainees at Torrance County Detention Facility (Torrance) in Estancia, New Mexico. The report also highlights that Torrance failed to meet standards for facility conditions, facility security, medical care, use of force, detainee classification, communication between staff and detainees, and access to legal services.
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
Explainer: The Fifth Circuit’s DACA Ruling
This explainer provides an overview of the October 6 Fifth Circuit ruling against Deferred Action for Childhood Arrivals (DACA), upholding an earlier decision from U.S. District Judge Andrew Hanen that the policy is unlawful.
Fact Sheet: Deferred Action for Childhood Arrivals (DACA)
This fact sheet provides an overview of the Deferred Action for Childhood Arrivals (DACA). DACA is a deferred action policy implemented by the Obama administration in June 2012. It is aimed at protecting qualifying young undocumented immigrants who came to the U.S. as children, temporarily shielding them from deportation and providing them with work authorization.
Bilateral Labor Agreements: A Beneficial Tool to Expand Pathways to Lawful Work
This paper explores the rationale, benefits, and history of bilateral labor agreements (BLAs) in the United States, including the recent labor mobility discussions with the Mexican government. It also highlights how these agreements can benefit the U.S., as they provide U.S. policymakers more control over the size of the temporary migrant workforce, while prioritizing needed skills and experience. It argues that BLAs are useful in addressing U.S. labor shortages, help manage the irregular migration flow at the U.S. southern border, and reaffirm the United States’ hemispheric leadership.
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*This Bulletin is not intended to be comprehensive. Please contact Arturo Castellanos-Canales, National Immigration Forum Senior Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Arturo can be reached at acastellanos@immigrationforum.org. Thank you.