Legislative Bulletin – Friday, September 11, 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. 8119

The Voter Integrity Protection Act

The bill would make knowingly voting in a federal election by an undocumented immigrant an aggravated felony. The bill would also make knowingly voting in federal elections a deportable offense for undocumented immigrants.

Sponsored by Representative Andy Biggs (R-Arizona) (0 cosponsors)

08/28/2020 Introduced in the House of Representatives by Representative Biggs

08/28/2020 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be in session from Monday, September 14, 2020 to Thursday, September 17, 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

DHS Whistleblower: Administration Misled Congress and the Public on Intelligence, Including Border and Asylum Issues

On September 8, Brian Murphy, a former senior Department of Homeland Security (DHS) intelligence analyst, submitted a whistleblower complaint to the DHS Office of Inspector General (OIG) alleging a number of top Trump administration officials had misled Congress and the public on intelligence, falsifying reports to align with the president’s agenda. Relevant to immigration, Murphy asserted that the false information included issues relating to asylum policy and the border.

Among a number of allegations, Murphy accused former DHS Secretary Kirstjen Nielsen of greatly exaggerating the terrorist threat at the Southwest border, baselessly asserting to Congress that thousands of suspected terrorists were attempting to cross over from Mexico. Internal agency data showed there were no more than three such suspects. The complaint also alleges that Senior Official Performing the Duties of the Deputy Secretary of DHS, Ken Cuccinelli, attempted to force the agency to changes intelligence reports describing country conditions in Guatemala, Honduras and El Salvador. Cuccinelli allegedly sought to downplay instances of corruption and violence in these reports, which are used by asylum officers to make decisions regarding the eligibility of those seeking protection. When DHS officials would not agree to alter the reports, the complaint alleges that Cuccinelli threatened to immediately “fire or reassign” those responsible.

A spokesperson for DHS said, “We flatly deny that there is any truth to the merits of Mr. Murphy’s claim.” The House Intelligence Committee has subpoenaed Murphy to give closed-door testimony on the details of the complaint on September 21.

ICE Conducts Largest Series of Immigration Arrests Since the Start of the COVID-19 Pandemic

In a 39-day period from July to August, ICE officials made over 2,000 arrests of undocumented immigrants across 24 cities. These arrests are part of the largest immigration sweep since the beginning of the COVID-19 pandemic. ICE officials said that the arrests were aimed at those with criminal convictions and pending charges, but officials admitted that some individuals with clean records were also arrested.

Some arrests were made “at-large,” meaning they took place at residences, worksites and traffic stops across the country. ICE had previously said it has limited its enforcement activities during the pandemic to avoid outbreaks among detainees. These limitations included focusing enforcement efforts on those with certain criminal records and those deemed a public threat.

The enforcement effort comes as detention facilities across the country continue to struggle with sustained COVID-19 outbreaks. Advocates criticized the enforcement surge for causing an influx of detained individuals and putting all detainees at further risk of exposure to the virus.

Administration Finalizes Rule to Restrict Asylum on Public Health Grounds

On September 4, the Department of Health and Human Services (HHS) finalized a rule that would empower the Director of the Centers for Disease Control and Prevention (CDC) to prohibit entry into the U.S. of individuals who have come from or traveled through a place where an illness included in the White House list of “Quarantinable Communicable Diseases” was present.  The rule is a finalized version of an interim final rule (IFR) in place since March 24, which allowed CDC Director Robert Redfield to issue his own rule limiting entry to the U.S. during the COVID-19 pandemic. This CDC action has resulted in the apprehension and summary expulsion of over 100,000 migrants, including asylum seekers and unaccompanied children, who have attempted to enter the United States since March.

The final rule, which will go into effect on October 4, includes some changes from the IFR which preceded it. The rule would limit the diseases that could lead to restrictions from any communicable disease to only those on the White House official list of quarantinable diseases. The rule would also require the CDC director to justify any restrictions by stating the serious danger posed by the introduction of the quarantinable disease.

During a notice-and-comment period prior to HHS finalizing the rule, over 200 comments were submitted by advocacy groups, religious groups, industry representatives, and the general public. Many of the comments challenged the legality of the rule and criticized it for violating the rights of asylum seekers and unaccompanied children.

Administration Releases Proposed Rule that Would Increase Collection of  Biometric Data from Immigrants

On September 11, the Trump administration released a proposed rule that would significantly increase the number of times immigrants would be required to submit biometric data as part of a new, “continuous vetting” approach. The rule would also expand the kinds of biometric data the government is allowed to demand, including iris scans, DNA, and photographs for facial recognition. The policy would allow the Department of Homeland Security (DHS) to require any noncitizen immigrant to provide biometric data at any time and with no limit.

The move represents a marked change from current policy, under which DHS only requires limited biometric information when immigrants are applying to change or obtain status.

In a statement, the American Civil Liberties Union (ACLU) said that, “collecting a massive database of genetic blueprints won’t make us safer – it will simply make it easier for the government to surveil and target our communities.”

Legal

Federal Judge Orders ICE to Stop Detaining Children in Hotels

On September 4, Judge Dolly Gee ordered Immigration and Customs Enforcement (ICE) to stop detaining migrant children in private hotels before secretively deporting them. Judge Gee further ordered that ICE transfer all children currently held in hotels to licensed Office of Refugee Resettlement (ORR) facilities.

Since March, the Trump administration has used a CDC public health rule to summarily deport over 8,500 unaccompanied children arriving at the border without first screening them for human trafficking or transporting them to ORR facilities, where they can be cared for by trained personnel. Instead, ICE has used a private transportation contractor to detain some children in hotels before expelling them, often without informing family members or legal representatives about the children’s whereabouts.

Judge Gee oversees the 1997 Flores settlement agreement, which controls how the federal government must treat detained immigrant children. She ruled the CDC rule did not supersede children’s Flores rights, and that concerns related to the COVID-19 pandemic were “no excuse for DHS to skirt fundamental humanitarian protections . . . especially when there is no guarantee hoteling is safer than licensed facilities.”

Despite claims that the detention and rapid expulsion of migrant children were necessary to stem the spread of COVID-19, the administration has continued to deport children even after they tested negative for the virus. According to a September 8 report in Buzzfeed News, the administration is now considering excluding some children who test negative from the summary expulsions, potentially in response to ongoing litigation.

Judge Gee’s ruling comes after a court report, conducted by an independent monitor and a pediatrician, revealed ICE had detained 660 minors in hotels between March and July, 577 of those unaccompanied by parents or guardians.

Judge Provides Relief to Diversity Visa Recipients in Immigration Ban Case

On September 5, a federal judge in California provided relief to thousands of diversity visa recipients by ordering the administration to resume issuing visas to those selected in the diversity visa lottery.

The Diversity Visa Immigrant Program, which is designed to allow additional immigration opportunities to people from countries with relatively low rates of immigration to the U.S., had been all but eliminated by President Trump’s proclamations suspending immigration in April and June 2020. The proclamations suspended the entrance of immigrants in many permanent and temporary immigration categories.

The State Department had interpreted the proclamations to apply not just to the entrance of individuals, but also the issuance of their visas, which had an outsized effect on diversity visa recipients. Accessing a diversity visa is a multi-step process, which consists first of entering a computerized lottery which selects 55,000 individuals each year, and then a lengthy application, interview, and visa issuance stage before lottery winners can finally receive their green cards. Lottery winners must act quickly, because if their visas are not issued by the end of the following fiscal year, they lose all access to their visa and are no longer authorized for a green card. Around 95% of diversity visa applicants apply from abroad, meaning the vast majority were denied access to their visas by the proclamations.

The judge ruled that although there is no statutory requirement that every visa be issued, “that does not mean that the State Department could effectively extinguish the diversity program for a given year by simply sitting on its hands and letting all pending diversity visa applications time out.” The judge further ordered the administration to “expeditiously process and adjudicate” diversity visas for 2020 and scheduled an additional hearing for September 21 to ensure compliance.

Approximately 12,000 winners of the diversity visa lottery had already been issued visas before the proclamations went into effect, meaning that 43,000 were still waiting to be issued their visas.

Appeals Court Reverses Ruling that Barred ICE from Conducting Raids in Courthouses

On September 1, the First Circuit Court of Appeals overturned a lower court’s injunction which had blocked U.S. Immigration and Customs Enforcement (ICE) agents making arrests in and around state courthouses in Massachusetts. The case was initially brought by the District Attorneys of Middlesex and Suffolk Counties, who argued that ICE arrests disrupt court proceedings and threaten the criminal justice system by making defendants and witnesses afraid to come to court and testify.

The First Circuit ruled that plaintiffs failed to show “that ICE lacks statutory authority to conduct such arrests in Massachusetts.”

Federal Judge Rules CBP Officials Cannot Stand in for Asylum Officers during Credible Fear Screenings

On August 31, a federal judge in Washington, D.C. ruled that U.S. Customs and Border Protection (CBP) officials cannot take the place of asylum officers when conducting initial asylum screenings. In one of the Trump administration’s many attempts to expedite removals of asylum seekers and other migrants arriving at the Southwest border, CBP employees were designated to conduct credible fear interviews, which are the first step in the asylum application process. Typically, credible fear interviews are conducted by trained U.S. Citizenship and Immigration Services (USCIS) Asylum Officers. The screenings are meant to be non-adversarial and involve asylum seekers demonstrating they have a credible fear of persecution, a prerequisite to seeking asylum before an immigration judge.

The administration had argued that CBP officials had sufficient training to conduct credible fear screenings, an assertion the judge declared was “poppycock.” In his ruling, the judge said that “the training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

On average, when credible fear screenings are conducted by USCIS asylum officers, 64% of asylum seekers are approved to make their case before an immigration judge. When the screenings are conducted by CBP officials, just 37% of asylum seekers are approved.

State and Local

Watchdog Finds ‘Multiple and Systematic Deficiencies’ in Virginia Detention Facility’s Handling of COVID-19 Outbreak; Subsequent Report Details Link to D.C. Protests

According to a report from an independent expert made public on September 8, an immigration detention facility in Farmville, Virginia has “multiple and systematic deficiencies” in its COVID-19 prevention efforts and “represents a significant health risk to high-risk patients.”  The detention center was the site of a major outbreak of coronavirus in July and August. By September 8, more than 90% of the 298 detainees in the facility had tested positive and one 72 year-old detainee had died.

In August, the outside expert was appointed to inspect the facility by a judge overseeing a lawsuit filed on behalf of several detainees. The expert stated that the root cause of the outbreak was the transfer of 74 immigrants from facilities in Florida and Arizona to the detention facility without testing prior to arrival or quarantine procedures in place. The independent expert also pointed to the facilities’ screening procedures as cause for concern, noting that detainees were rarely asked if they were experiencing symptoms. The report contradicted a separate report conducted by an expert hired by the detention facility, who concluded that it was detainees own lack of cooperation with protocols that caused the outbreak.

Subsequently, on September 11, the Washington Post reported that the deployment of DHS tactical teams to protests in Washington, D.C. in June was the “primary reason” for the transfers of COVID-19-striken detainees to Farmville. According to DHS sources with knowledge of the operations, the transfer of detainees from Arizona and Florida was carried out to circumvent rules barring ICE personnel (including tactical teams) from travelling on ICE chartered flights that do not have detainees onboard.

New Jersey Removes Licensing Barriers for Immigrants

On September 1, New Jersey Governor Phil Murphy (D) signed legislation which would allow immigrants, regardless of status, to apply for professional licenses necessary to work in certain professions and occupations in the state. Under the bill, which was approved by New Jersey state legislature on July 30, workers will be able to apply for professional and occupational licenses in the state if they meet the requirements, regardless of immigration status. Governor Murphy said, “New Jersey is stronger when everyone is given the opportunity to contribute and everyone is given a chance to live their American dream.”

California, Nevada, and New Mexico have previously passed comparable legislation.

LA County Permanently Bans ICE Transfers Without a Warrant

On September 1, the Los Angeles County Board of Supervisors, with the support of Sheriff Alex Villanueva, voted to permanently ban the use of county resources in transferring people released from county jail to ICE custody if the agents do not have a warrant. The vote makes an April moratorium on cooperation, established in response to the coronavirus pandemic, permanent.

The policy limits any future sheriff’s cooperation with ICE to what is legally mandated. The vote was based on concerns raised relating to the coronavirus pandemic, as well as longstanding due process and legal concerns related to the carrying out of warrantless transfers. County officials sought to limit the number of individuals sent to ICE detention facilities in order to mitigate exposure to the virus and safeguard the constitutional rights of detainees.

GOVERNMENT REPORTS

DHS Office of the Inspector General (OIG) U.S. Customs and Border Protection Compliance with Use of Force Policy for Incidents on November 25, 2018 and January 1, 2019, August 24, 2020

This report by the DHS Office of Inspector General (OIG) concerns the use of non-lethal weapons by Customs and Border Protection (CBP) officials on November 25, 2018 and January 1, 2019, in response to physical threats. The OIG found that the use of tear gas appeared to be within CBP’s use of force policy. However, the investigation found that the use of an acoustic device with an “alert tone” mode did not fully comply with CBP policies. The acoustic device was used on November 25, 2018 and did not comply with CBP’s use of force policy because the agency did not get prior authorization for the device, and the use of the device could increase the risk of temporary or permanent hearing loss to those exposed. Furthermore, not all Border Patrol agents had the required training and certification to carry these devices. The report also found that CBP’s internal investigation of the event was incomplete and inaccurate.

DHS Office of the Inspector General (OIG) Five Laredo and San Antonio Area CBP Facilities Generally Complied with the National Standards on Transport, Escort, Detention, and Search, September 1, 2020

This report focuses on inspections of five CBP facilities in the Laredo and San Antonio areas of Texas, in February 2020. According to the report, the facilities seemed to be operating in compliance with the National Standards on Transport, Escort, Detention, and Search (TEDS) standards. OIG verified accessibility to water, food, toilets, sinks, basic hygiene supplies, and bedding. At the time, the temperatures and ventilation in the holding rooms were within regulation. Some of the facilities were conducting migrant intake health assessments, in compliance with recent orders from Border Patrol leadership.

DHS Office of the Inspector General (OIG) CBP Needs to Award A Medical Services Contract Quickly to Ensure No Gap in Services, September 3, 2020

This report consists of a management alert to CBP informing the agency of the need to issue a new medical services contract promptly to support operations on the Southwest border. The current contract will expire on September 29, 2020, and as of the time of this report, CBP had not solicited a new contract. The report states that if the agency does not act quickly, a lapse in the contract could jeopardize the health of migrants in CBP custody, as well as staff and officers, during the COVID-19 pandemic. The agency had the option to extend its current agreement by six months, but it failed to give notice of that decision by August 30, 2020.

DHS Office of the Inspector General (OIG) Early Experiences with COVID-19 at CBP Border Patrol Stations and OFO Ports of Entry, September 4, 2020

This report describes how 136 Border Patrol stations and 307 Office of Field Operations points of entry responded to the early weeks of the coronavirus pandemic. Facilities reported the actions taken to mitigate the spread of the virus, such as enhanced cleaning procedures and providing personal protective equipment to staff. Facilities also reported concerns with social distancing and  potential staffing shortages due to the virus. Overall, the majority of facilities reported that they were prepared to address COVID-19.

Government Accountability Office (GAO): CBP and TSA are Taking Steps to Implement Programs, but CBP Should Address Privacy and System Performance Issues September 2, 2020.

This report from the Government Accountability Office (GAO) focuses on CBP’s use of facial recognition technology. Currently, CBP is using facial recognition for identity checks at 27 U.S. airports. The GAO found that CBP’s privacy notices around this technology were not consistently current or available, and that the agency has only audited one of its 27 airline partners to ensure compliance with the privacy policies.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Review of the Supreme Court’s 2019-2020 Immigration Cases

This resource provides key takeaways and additional context on the Supreme Court’s nine immigration-related rulings in its 2019-20 term. The resource details the mixed outcome of these cases, including high profile victories for immigrants and advocates, as well as decisions posing threats to immigrants.

Retail Sector: Immigrants Are Indispensable to the U.S. Workforce

This fact sheet focuses on immigrant workers in the U.S. retail sector, highlighting key facts about their demographics, income, and contributions.

COVID-19 Policy Principles

This resource states the National Immigration Forum’s policy principles in response to the COVID-19 outbreak. The Forum has called for lawmakers and federal agencies to provide for the health and safety of all people, including vulnerable immigrant populations.

* * *

*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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