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Legislative Bulletin — Friday, September 15, 2023

Welcome to the National Immigration Forum’s weekly bulletin! Every Friday, our policy team rounds up key developments around immigration policy in Washington and across the country. The bulletin includes items on the legislative, executive, and judicial branches, as well as some coverage at the state and local levels. 

Here’s a breakdown of the bulletin’s sections:

DEVELOPMENTS IN IMMIGRATION THIS WEEK

BILLS INTRODUCED AND CONSIDERED

LEGISLATIVE FLOOR CALENDAR

UPCOMING HEARINGS AND MARKUPS

GOVERNMENT REPORTS

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

DEVELOPMENTS IN IMMIGRATION THIS WEEK

Immigration policy is a dynamic field subject to constant change. Here, we summarize some of the most important recent developments in immigration policy on the federal, legal, state, and local levels. 

Content warning: This section sometimes includes events and information that can prove disturbing. 

Legal 

Federal Judge Rules Biden Administration’s Version of DACA Unlawful 

On September 13, a federal district court in Texas declared the Biden administration’s updated version of the Deferred Action for Childhood Arrivals (DACA) policy unlawful, leaving nearly 600,000 DACA recipients in limbo and blocking other Dreamers from accessing work authorization and deportation protections. 

U.S. District Judge Andrew S. Hanen reaffirmed his previous 2021 opinion holding that the original 2012 version of DACA was unlawful, rejecting the Biden administration’s efforts to fortify the policy by using formal rule-making to better support its legal standing.

“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation … The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”

For the time being, Hanen allowed the federal government to continue administering DACA for current beneficiaries – including processing and approving renewal applications — which will let them remain in the United States and legally work without imminent fear of deportation as the litigation continues 

“Consistent with the ruling, USCIS will continue to process DACA renewals, and DHS will continue to advocate on behalf of DACA recipients every day, in the courts and through our actions. We stand ready to work with Congress on an enduring solution for our Dreamers,” DHS Secretary Alejandro Mayorkas said in a statement. 

The federal government is expected to appeal Hanen’s ruling to the Fifth Circuit, while ultimately, the Supreme Court is expected to have the last word on DACA’s legality. Yet after years of a protracted legal battle, this latest setback will only exacerbate uncertainty surrounding the futures of Dreamers, many of whom contribute to essential industries across the country and have never known another home than the U.S.

Since news broke of Hanen’s decision, those who count Dreamers as friends, coworkers, fellow parishioners, and family are imploring lawmakers to act with a sense of urgency. 

Experts from the Council on National Security and Immigration called on federal policymakers to provide Dreamers with a permanent immigration status, which would “strengthen our economy and bolster our national security,” while faith leaders similarly called on members of Congress “to pass legislation quickly before further court decisions exacerbate the situation.”

The Alliance for a New Immigration Consensus — a coalition of business, education, faith, and other organizations — cited “Americans’ overwhelming support for DACA recipients and other Dreamers” as “a rare chance to advance meaningful bipartisan legislative solutions.”

 “Congress must get off the sidelines,” said Jennie Murray, President and CEO of the National Immigration Forum. “A permanent, legislative solution would provide certainty not only to DACA recipients but also to their families, employers, communities and schools.”

Judge Approves Settlement With Asylum Adjudication Benchmarks for Afghans Under Operation Allies Welcome

A nationwide settlement in a class-action lawsuit known as Ahmed v. DHS will now require the federal government to keep up with asylum adjudication benchmarks for Afghans who arrived through Operation Allies Welcome, after prolonged processing times left many asylum seekers waiting in legal limbo following the Taliban takeover back home. 

Now that the settlement has been approved by Judge Jon S. Tigar in the Northern District of California, it could help around 20,000 Afghans finally have their asylum claims determined, years after they were evacuated from Afghanistan. By the end of October, the federal government will need to decide half of the asylum applications filed before June 3 by Afghans resettled through Operation Allies Welcome, and case completion benchmarks progressively increase from there.  

The settlement also includes reporting requirements on compliance and other data. It will remain in effect until October 31, 2025 — or until the first day that fewer than 200 asylum applications are still pending for Afghans affected by Operation Allies Welcome. 

One of the seven plaintiffs in the case, Mursal Sadat, shared with The Arizona Republic that her asylum decision took 400 days, during which she grappled with anxiety about her future in the U.S. and her ability to assist her family, who had fled to Pakistan.

“I am very happy that we have reached a settlement that will change this situation, so that asylum seekers can restart and rebuild their lives,” Sadat said. “I may have received asylum since this lawsuit was filed, but I worry about the many others who have not been as lucky.”

Federal

HHS Reactivates Controversial Border Facility Amid Increased Border Crossings, New Watchdog Report Warns DHS May Be Losing Track of Migrants

Earlier this week, the Biden administration reactivated a controversial influx care facility in Pecos, Texas, amid an uptick in the number of unaccompanied migrant children arriving in the United States, CBS News reported Wednesday

The Pecos facility was used to accommodate a group of children on Tuesday, according to an unnamed U.S. official, as the U.S. Department of Health and Human Services (HHS) struggles to house over 10,600 unaccompanied migrant kids after taking in an average of 431 children per day last month.

But the Pecos facility was dogged by allegations of undercooked food and lack of timely medical care before the federal government decided to stop using it for migrant kids earlier this year, raising concerns about the conditions that await newcomers at the site now.

“While (the Office of Refugee Resettlement’s) priority is to place children into standard care provider facilities, access to (Influx Care Facility) capacity remains necessary to ensure that ORR can promptly accept referrals when ORR’s other network facilities reach or approach capacity,” HHS told CBS News in a statement. “With this in mind, the status of the ICF at Pecos has changed from ‘warm status’ to active status and is currently accepting children.”

The facility’s reactivation comes amid early reports of a sizable jump in border crossings during August, driven largely by families. And on Tuesday, Axios similarly noted how “tens of thousands of Mexican family members crossed the southern border in recent months,” both at ports of entry and between them, disrupting historical norms of Mexican migration focused primarily on single adults. 

Meanwhile, in a new report, the Department of Homeland Security’s Office of Inspector General (DHS OIG) found that of the 981,671 migrant records that its researchers reviewed, documented by Border Patrol between March 2021 and August 2022, addresses for over  177,000 of them “were either missing, invalid for delivery, or not legitimate residential locations.”

The audit raised red flags that “DHS may not be able to locate migrants following their release into the United States,” potentially inhibiting the federal government’s ability to enforce its own immigration laws. 

Six Consecutive Months of More Than 6,000 Refugees

The United States resettled 6,104 refugees in August, the sixth month in a row that it has resettled more than 6,000 refugees. 

Given that the U.S.’s refugee resettlement program often sees a high number of arrivals in the last month of the fiscal year, it is possible that over 60,000 refugees could be resettled this year. That would represent a significant increase in arrivals since last fiscal year, when the U.S. only resettled 25,465 refugees.

However, to have met the FY 2023 refugee ceiling of up to 125,000 refugees, the U.S. would have needed to resettle some 10,417 refugees every month for twelve consecutive months. 

USCIS Requires Affirmative Asylum Applicants to Provide Own Interpreters 

On September 13, U.S. Citizenship and Immigration Services (USCIS) reverted to previous requirements for affirmative asylum applicants to bring their own interpreters to asylum interviews if they are not fluent in English, after a Covid-era temporary final rule that provided for the use of USCIS-contracted telephonic interpreters expired.  

Interpreters must be fluent in English and a language the applicant speaks fluently. They must also be 18 years old or older and cannot be the applicant’s attorney or accredited representative, among other disqualifiers. 

If an asylum applicant needs an interpreter but does not bring a proficient one to the interview, that may be considered a failure to appear, and the application might be dismissed or referred to an immigration judge. This can, however, be overcome with good cause, to be determined on a case-by-case basis.

USCIS will still provide sign language interpreters, if requested as a disability accommodation.

Ramaswamy Endorses Deporting American Children in Latest GOP Challenge to Birthright Citizenship

On September 8, Republican presidential candidate Vivek Ramaswamy endorsed deporting American children of undocumented migrants — despite them being U.S. citizens.  

Ramaswamy expressed his desire to effectively challenge birthright citizenship by deporting entire mixed-status families, even if they included American-born kids.

“Under the legal theory that the child of an illegal immigrant is not someone who enjoys birthright citizenship, then it would be perfectly legally permissible to remove the entire family unit,” he said.  

Long-standing case law and general legal consensus suggest that birthright citizenship — including for the children of undocumented immigrants — is enshrined in the U.S. Constitution. The Fourteenth Amendment says clearly that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Still, Ramaswamy is not the only 2024 GOP presidential contender to publicly declare war on birthright citizenship. The former president, Donald Trump, said he would try to end birthright citizenship through an executive order (a legally dubious proposal if there ever was one), while Florida Gov. Ron DeSantis has similarly attacked the right as a “prize… to the future offspring of illegal immigrants.”

State and Local 

Massachusetts Communities Welcome Arriving Migrants But Tensions Rise Amid Right-to-Shelter for Families

Recently, a large number of migrants and asylum seekers has arrived in Massachusetts, partly attracted by the state’s right-to-shelter law that guarantees families with children housing so long as they meet certain requirements.

Massachusetts is the only state that offers this benefit, making it an appealing destination for migrants who otherwise might struggle to find affordable housing when they first come to the U.S. Over 80 cities and towns have already received newcomers, many of them Haitians. 

Massachusetts Gov. Maura Healey (D)  declared a state of emergency last month in an attempt to secure federal support, and she has authorized up to 250 National Guard members to assist some of the families. Meanwhile, local residents have stepped up to help the migrants in their communities, providing them with basic needs and donating money, clothing, diapers, and toys. 

Yet some local officials are still expressing frustrations about the pressure they feel to provide for the migrant families, faced with a lack of resources, funding, and available space. 

“We have registered 16 school-age children for our school. But they don’t speak the language. We’ll have to hire an ESL teacher, probably some aides, and there’s a cost to that. I don’t want to be left holding the bill,” Jim Smith, town manager for Sutton, told the Boston Globe. “I want some assurances from the state that they’ll be there. We can’t afford this.”

Last month, around 20 people with a banner alluding to a neo-Nazi group staged a demonstration outside several hotels holding migrants in Massachusetts, frightening some of the families so much that they feared leaving their rooms.

Immigrant Fears of New Florida Law Hinder Disaster Preparedness, Recovery

After Hurricane Idalia battered parts of Florida last month, causing billions in damage, undocumented workers who would usually rush to disaster zones are now hesitating to help clean up because they’re afraid of the state’s sweeping new immigration law.

SB 1718, which took effect in July, represents the culmination of Florida Gov. Ron DeSantis’s (R) efforts to deter irregular migration to his state through draconian policies that target undocumented immigrants who spend time there. 

Resilience Force, a nonprofit that supports disaster response workers, found that over half of its roughly 2,000 members said over the summer that they planned to avoid going to Florida for hurricane recovery in response to the new measure, CNN reported

“We’re afraid to go,” María, who has helped with recovery for five U.S. natural disasters including Hurricane Ian in Florida last year, told The Guardian. “Now with this new law, if they catch us, they will deport us, so we’re too afraid to go back.”

Workers on the ground are noticing a severe worker shortage, with some of the poorest Floridians disproportionately paying the price. 

“This is where all the immigrants that the governor wants to push out are needed,” Maggie Vidal, a Mexican living in Florida, told Noticias Telemundo. “Who is going to do all of this work? There is a lot, a lot of work here.”

The new law similarly stoked fear and confusion ahead of the storm, as advocates had to assuage community concerns over whether just going to a shelter could put undocumented residents at risk, NBC News reported.

BILLS INTRODUCED AND CONSIDERED

It can be challenging to keep up with the constant barrage of proposed legislation in Congress. So, every week, we round up new bills. This list includes federal legislative proposals that have recently been introduced and that are relevant to immigration policy. 

Please follow this link to find new relevant bills, as well as proposed legislation from past weeks. 

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session from Monday, September 18 through Friday, September 22, 2023.

The U.S. House of Representatives will be in session from Monday, September 18 through Thursday, September 21, 2023.

UPCOMING HEARINGS AND MARKUPS

Here, we round up congressional hearings and markups happening in the field or in Washington. 

The Financial Costs of Mayorkas’ Open Border

Date: Wednesday, September 20, 2023 at 10:00 a.m. EST (House Homeland Security Committee)

Location: 310 Cannon House Office Building, Washington, D.C.

Witnesses: TBA

Oversight of the U.S. Department of Justice

Date: Wednesday, September 20, 2023 at 10:00 a.m. EST (House Judiciary Committee) 

Location: 2141 Rayburn House Office Building, Washington, D.C.

Witnesses: 

The Honorable Merrick Garland, Attorney General, U.S. Department of Justice

GOVERNMENT REPORTS

Reports by bodies such as the U.S. Government Accountability Office, the Congressional Research Service, and the Department of Homeland Security’s Office of Inspector General provide invaluable information on immigration policy and practice. Here, we give brief summaries of new immigration-related reports, with links to the resources themselves in case you want to learn more. 

The Department of Homeland Security Office of Inspector General (OIG); DHS Does Not Have Assurance That All Migrants Can be Located Once Released into the United States; Published September 6, 2023 (REDACTED)

This report finds that, between March 2021 and August 2022, “addresses for more than 177,000 migrant records were either missing, invalid for delivery, or not legitimate residential locations,” representing around 18% of the Border Patrol’s 981,671 migrant records reviewed by the watchdog. 

U.S. Government Accountability Office (GAO); Biometric Identity System: DHS Needs to Address Significant Shortcomings in Program Management and Privacy; Published September 12, 2023 

This report explores the Department of Homeland Security’s (DHS) beleaguered Homeland Advanced Recognition Technology (HART) program, focused on its cost and schedule estimates as well as potential privacy concerns.

U.S. Government Accountability Office (GAO); U.S. Assistance to Mexico: State Department Should Take Steps to Assess Overall Progress; Published September 12, 2023

This report analyzes a decade and a half of U.S. assistance to Mexico and critiques the federal government for its inability to “demonstrate that it is achieving its goals in Mexico and that its investments, at over $3 billion since 2008, have been spent effectively.”

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

The Forum is constantly publishing new policy-focused resources that engage with some of the most topical issues around immigration today. Here are a few that are particularly relevant this week:

Explainer: U.S. District Court Judge Hanen Finds New DACA Rule Unlawful

This explainer details the September 13 decision on DACA holding that the program is unlawful. It also explores the decision’s implications for current DACA recipients and other Dreamers, discusses potential solutions, and provides a timeline for the court challenge around DACA.

Dreamer Advocacy Resources

This landing page provides key information and resources about DACA and Dreamers.

CBP One: Fact Sheet and Resources Directory

This fact sheet and resources directory gives information and useful links about CBP One’s key features, its significance for asylum seekers, and its shortcomings. 

* * *

*This Bulletin is not intended to be comprehensive. Please contact Alexandra Villarreal, Policy and Advocacy Associate at the National Immigration Forum, with comments and suggestions of additional items to be included. Alexandra can be reached at avillarreal@immigrationforum.org. Thank you.

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