Legislative Bulletin – Friday, September 6, 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. 4226

Protecting Children of Public Servants and Service Members Abroad Act

This bill would block the new policy guidance on “Defining ‘Residence’ in Statutory Provisions Related to Citizenship” issued by U.S. Citizenship and Immigration Services (USCIS) on August 28, 2019. Under the policy guidance, USCIS will no longer consider public servants and members of the U.S. military stationed abroad to be residing in the U.S. for purposes of their children obtaining automatic citizenship (in certain cases).

Sponsored by Representative Ruben Gallego (D-Arizona) (10 cosponsors – 10 Democrats, 0 Republicans)

09/03/2019 Introduced in the House by Representative Gallego

09/03/2019 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 recess until Monday, September 9, 2019.

UPCOMING HEARINGS AND MARKUPS

The Administration’s Apparent Revocation of Medical Deferred Action for Critically Ill Children

Date: Wednesday, September 11, 2019 at 12:00 p.m. (House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties)

Location: 2154 Rayburn House Office Building

Witnesses: TBA

THEMES IN WASHINGTON THIS WEEK

Federal

Pentagon to Transfer $3.6 Billion in Military Funding to Build Border Barriers

The Trump administration will divert $3.6 billion in military construction funding to build 175 miles of barriers along the Southern border, transferring the funding from 127 military-construction projects in 23 states, three U.S. territories and overseas bases. Defense Secretary Mark Esper informed Congress on September 3 that the Department of Defense (DoD) plans to transfer the funds, appropriated by Congress to upgrade military bases, to build border barriers to “provide support to DHS more efficiently and effectively.” About half of the impacted funds appear to come from domestic sites, while the other half comes from overseas or classified sites. The $3.6 billion being diverted is in addition to $2.5 billion that DoD transferred earlier this year to build border barriers.

The military construction projects targeted for funding cuts include six new schools for military families located on U.S. military bases and three additional schools overseas. DoD also diverted reconstruction funding for hurricane-damaged U.S. bases in South Carolina, Puerto Rico and the Virgin Islands, as well as funding for a “cyber ops facility” in Virginia and a missile defense field in Alaska.

The states that stand to lose the most funding include New York ($160 million), New Mexico ($125 million), Alaska ($102 million), Washington ($89 million) and North Carolina ($80 million). Overseas U.S. territories stand to lose even more, with Puerto Rico losing $403 million and Guam losing $257 million in appropriated DoD funding.

Speaker Nancy Pelosi on September 4 called the transfer of military funds an “irresponsible decision . . . [that] makes America less safe and dishonors the Constitution.” Senate Minority Leader Chuck Schumer (D-New York) also criticized the transfer, calling it a “slap in the face to members of the Armed Forces who serve our country.” A group of ten Democratic Senators also sent a letter to Secretary Esper stating opposition to the transfer and requesting more information, including “a full justification of how the decision to cancel was made for each project selected.” Senators Mike Lee (R-Utah) Mitt Romney (R-Utah) also criticized the transfer, with Senator Lee arguing that “Congress has been ceding far too much powers to the executive branch . . . and it is far past time for Congress to restore the proper balance.”

The American Civil Liberties Union (ACLU), representing the Sierra Club and border advocates, said it plans to seek a court order to block the transfer of funds.

Trump Administration Considers Massive Cuts to Refugee Admissions

The Trump administration is reportedly weighing massive cuts to refugee admissions for fiscal year (FY) 2020, reducing the number of refugees allowed into the U.S. by half or more. During meetings over the past several weeks, administration hardliners have reportedly proposed shutting down the refugee admissions program entirely, while providing the president the power to admit refugees in an emergency. Alternatively, the administration is reportedly considering keeping refugee admissions open, but at significantly lower levels (approximately 10,000 to 15,000) than the current much-reduced level of 30,000 in FY 2019. Reportedly, most of those spots would be reserved for certain favored groups of refugees, such as Iraqis and Afghans who aided U.S. troops and personnel in Iraq and Afghanistan. Administration officials are expected to meet on September 10 to discuss the FY 2020 ceiling on refugee admissions. The final presidential determination on refugee admissions must be made by September 30.

Even with further cuts to the U.S. refugee program under consideration, the Trump administration is likely to preserve an existing refugee program protecting Iraqis who aided U.S. troops in Iraq. Following discussions between DoD officials and the White House, the White House is reportedly planning to continue to allow Iraqi translators and others to obtain refugee protections.

Reports of planned reductions (or zeroing out) of refugee admissions prompted criticism and concern from the faith community as well as former military leaders, with more than two dozen retired generals and admirals sending a letter to President Trump defending refugee resettlement and highlighting its role in serving national security interests. DoD officials have expressed concern about cuts to refugee resettlement in previous years, particularly those that would impact protections for Iraqi allies.

Border Apprehensions Decrease by 30 Percent in August

U.S. Customs and Border Protection (CBP) figures reportedly show that the number of apprehensions along the Southern border decreased by about 30 percent to 51,000 in August, down from about 82,000 in July. This also represents a 65 percent decrease from May, the year’s record high, when 144,000 individuals were apprehended along the Southern border. Mark Morgan, acting commissioner at CBP, has previously credited the decline in migrant apprehensions to President Trump’s immigration enforcement policies, some of which have made it harder for migrants to apply for asylum. However, analysts have noted that border apprehensions generally tend to decrease in the summer, when migration journeys become more difficult due to hotter weather.

USCIS Announces New Rule to End 30-Day Requirement to Process Work Authorizations for Asylum Seekers

U.S. Citizenship and Immigration Services (USCIS) on September 6 announced a proposed rule (subscription only), that would end a government policy to process initial work permit applications for asylum seekers within 30 days. USCIS reportedly argues that the change will ensure that the agency has sufficient time to review and vet each application, but notes that the change could delay the ability of asylum seekers to work legally in the U.S. The agency estimates that the cumulative lost wages to asylum applicants could approach $775 million annually. Advocates criticized the issuance of the proposed rule, arguing that it would have negative impacts on asylum seekers and employers alike, shrinking the pool of legal workers who can  fill crucial jobs in a tight labor market. The rule is slated to be published on September 9.

Previously, on September 4, USCIS announced that John Lafferty, a career official and head of the USCIS asylum office, is being reassigned from his current job to a D.C.-area USCIS processing center. The reassignment, which many have interpreted to be a demotion, came after the release of an email memorandum from Lafferty that was critical of administration policies.

President Trump Mulls Granting TPS Designation for Venezuela

President Trump is reportedly still considering designating Venezuela for Temporary Protected Status (TPS), which would protect from deportation thousands of Venezuelan nationals currently in the U.S. The Trump administration reportedly is considering other non-TPS alternatives that would protect Venezuelans currently residing in the U.S.

Sens. Marco Rubio (R-Florida) and Rick Scott (R-Florida), as well as Gov. Ron DeSantis (R-Florida), have reportedly spoken to President Trump and USCIS acting-Director Ken Cuccinelli in support of designating Venezuela for TPS and allowing them to stay in the U.S. Sen. Scott noted in a recent interview that Venezuelans living in the U.S. are “in a ridiculous limbo” and “can’t go back” because of President Nicolas Maduro’s autocratic regime. TPS is generally granted by the U.S. Department of Homeland Security (DHS) to eligible foreign-born individuals who are unable to return home safely due to conditions or circumstances preventing their country form adequately handing their return. In addition, Sens. Rubio and Scott have also requested aid for Bahamian citizens displaced by Hurricane Dorian, sending a September 4 letter to President Trump asking that the administration waive U.S. visa requirements for Bahamians with close relatives in the U.S.

The renewed consideration of Venezuelan TPS comes after the Senate failed to pass the Venezuela TPS Act of 2019 (H.R. 549) on July 30. Earlier, on July 25, the House passed the bill 272 to 158, with 39 Republicans joining all Democrats in support of the measure.

Trump Administration Partially Reverses Decision to Restrict Deferred Action

On September 2, the Trump administration partially reversed a decision to have USCIS end the use of deferred action in most circumstances, including for immigrants undergoing lifesaving medical treatments or who have family members that are undergoing such treatments. USCIS said it will reopen all cases that were pending as of August 7. As before, it will no longer accept or consider new applications for non-military deferred action, and will reject all applications received after August 7.

This action reverses a decision announced by USCIS on August 23 that, effective August 7, the agency stopped accepting and adjudicating applications for deferred action for non-military applicants. Deferred action provides protection from deportation in two-year increments and the ability to work in the U.S. legally, but no path to legal permanent status. The newly proposed restrictions on deferred action would have affected potentially thousands of immigrants across the country, including children who had been granted medical deferred action to receive treatment for dire health conditions at American hospitals.

Prior to the reversal, USCIS had reportedly told some families previously protected under medical deferred action that they must leave the U.S. in 33 days or face deportation proceedings. The change means that immigrants protected by the program, as well as those who filed for protection on or before August 7, will be able to continue to seek deferred action. New applicants, however, will not be able to obtain such protections.

Advocates noted that the restrictions on deferred action were implemented as a blanket policy, without consideration of the significant health effects it will have on children and adults dependent on medical deferred action. The sudden policy change, which was implemented without a public announcement from USCIS, left many immigrants and their families suddenly facing deportation and an end medical treatment in the U.S., with fatal consequences. On September 4, over 150 organizations sent a letter to Acting Director Ken Cuccinelli calling on USCIS to fully resume accepting and adjudicating applications for deferred action, including requests filed after August 7.

HHS Office of Inspector General Reports Detail Trauma Suffered by Migrant Children, Hiring and Retention Challenges

According to newly-released reports from the Office of Inspector General (OIG) in the U.S. Department of Health and Human Services (HHS), HHS faces significant challenges in addressing the mental health needs of migrant children in the department’s custody, as well as challenges in hiring, screening and retaining employees in facilities holding migrant children.

A government report released by acting-Inspector General Joanne M. Chiedi on September 4 detailed the challenges care providers face in addressing the mental health needs of children in the department’s Office of Refugee Resettlement (ORR) custody. While acknowledging psychological damage that can be traced back to the child’s country of origin, the report highlighted the trauma experienced by children who journeyed to the U.S. and were separated from their families in the U.S. under the “zero tolerance” policy. The report stated that children who were separated from their families “exhibited more fear, feelings of abandonment, and post-traumatic stress.” Despite prior training and experience, mental health clinicians expressed concerns of feeling underprepared to handle the level of trauma that children presented. They also expressed that high caseloads limited their effectiveness in addressing children’s needs. ORR requires that the facility-wide staffing ratio be one mental health clinician for every 12 children. However, due to high caseloads, facilities reported that some individual mental health clinicians managed caseloads of more than 25 children.

A second report by the HHS OIG, released on September 3, revealed that some ORR facilities serving migrant children did not have evidence of required FBI fingerprint or Child Protective Services (CPS) checks of employees. Those safeguards are in place to ensure employees do not pose a risk to the safety and well-being of children. The report also found that the majority of facilities allowed employees to start working before receiving the results of either the FBI fingerprint check or the CPS check. In addition, the report found that while facilities hired mental health clinicians who met ORR education requirements, many relied on case managers who did not. The report also notes that facilities face challenges in hiring and retaining qualified employees and had difficulty maintaining required staffing ratios.

Separately, on September 4, immigration advocates filed a complaint with DHS and the Federal Bureau of Investigations (FBI) regarding conditions that women and children experience while in CBP custody.

Legal

Fourth Circuit Reverses Sessions Opinion Preventing Judges from Administratively Closing Cases

On August 29, the U.S. Court of Appeals for the Fourth Circuit issued a ruling stating that Immigration Judges (IJ) and the Board of Immigration Appeals (BIA) have authority to administratively close immigration cases pending before them. The ruling, issued in Zuniga Romero v. Barr, overturns a decision, Matter of Castro-Tum, issued in 2018 by former attorney general Jeff Sessions. In Matter of Castro-Tum, Sessions held that U.S. immigration law did not allow immigration judges to administratively close immigration cases before them.

Administrative closure is a common practice used by immigration judges to temporarily remove cases from their calendars and delay removal proceedings. The practice has been commonly used when an individual in deportation proceedings has a valid claim for legal status and has petitioned U.S. Citizenship and Immigration Services (USCIS), for instance when an undocumented person becomes eligible for a green card through marriage. By requiring immigration courts to proceed with removal proceedings, thousands of immigrants may be deported before obtaining the legal statuses for which they are eligible.

The Fourth Circuit held in their August 29 decision that U.S. immigration law unequivocally permits immigration judges to have full discretion over their case dockets, including utilizing administrative closure.

Senate Democrats Urge AG Barr to Reverse Decision Tightening Limits on Asylum   

In a letter dated August 21, 12 Democratic Senators, led by U.S. Senate Democratic Whip Dick Durbin (D-Illinois), called on attorney general William Barr to rescind his decision issued in Matter of L-E-A, which limits access to asylum for people fleeing alleged prosecution abroad due to their family ties.

In asylum cases, individuals can be recognized as part of a “particular social group” at risk of persecution and eligible for asylum if they establish that a group of which they are a member is (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. In determining that the BIA in Matter of L-E-A improperly recognized the respondent’s father’s immediate family as a “particular social group,” Barr stated that most nuclear families are not inherently socially distinct and thus do not automatically qualify as a “particular social group.”

The Democratic letter argued that Barr’s decision overturns decades of legal precedent and that BIA  was correct when it determined that family members could constitute a “particular social group” when a criminal cartel in Mexico targeted members of a family on the basis of their connection to an individual family member.

Dozens of Immigration Judges Reassigned to MPP Cases, as New Border Courts Are Planned to Handle Caseload

According to reports, the Trump administration is expected to reassign dozens of federal immigration judges to hear cases related to the Migration Protection Protocols (MPP) program, known as “Remain in Mexico.” Under MPP, tens of thousands of migrants that have sought asylum on the Mexican border have been required to wait in Mexico while their cases work their way through the U.S. court system. Because the federal government treats those migrants as if they were detained in the U.S., MPP cases operated under the faster-moving “detained docket,” requiring significant resources. In addition to existing immigration courts in San Diego and El Paso, two new Texas-based “border courts” are planned in Brownsville and Laredo to handle the additional MPP caseload. Cases are expected to be largely conducted via video-conferencing to allow judges located elsewhere in the U.S. to preside over these cases.

The reassignments are expected to create new delays in non-MPP immigration court cases, which are already severely backlogged. In addition, many migrants have expressed fear over the prospect of being sent back to Mexico, with many having been forced to remain in cities that are considered highly dangerous by the U.S. Department of State. Advocates have argued that knowingly placing asylum seekers in these areas place them at risk of physical harm, in direct contravention of U.S. law and regulation.

In May, the Ninth Circuit held that the Trump administration can continue to implement MPP, reversing a lower court ruling halting the program. Acting USCIS director Ken Cuccinelli has stated in recent days that the drop in asylum seekers coming to the U.S. in August points to the “spectacular success” of the MPP program.

GOVERNMENT REPORTS

U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG): Unaccompanied Alien Children Care Provider Facilities Generally Conducted Required Background Checks but Faced Challenges in Hiring, Screening, and Retaining Employees (September 3, 2019)

The report found that, while many Office of Refugee Resettlement (ORR) facilities serving unaccompanied children (UACs) met a range of background checks, some facilities did not have evidence of the required Federal Bureau of Investigation (FBI) fingerprint or Child Protective Services (CPS) check results. The report also found that some facilities did not hire case managers who met ORR education requirements and had difficulty maintaining required staffing ratios.

U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG): Care Provider Facilities Described Challenges in Addressing Mental Health Needs of Children in HHS Custody (September 4, 2019)

This report found that ORR facilities experienced challenges in addressing the mental health needs of migrant children in their custody who experienced trauma, including trauma from being separated from their families under the Trump administration’s “zero tolerance” policy.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Expanded Expedited Removal: What It Means and What to Do

This “what to do” informational document discusses the implications of the new expanded expedited removal guidance and provides general guidance to the immigrant community.

Border Security Along the Southwest Border: Fact Sheet

This fact sheet includes a summary of current border security resources and recent migration trends along America’s Southern border.

Push or Pull Factors: What Drives Central American Migrants to the U.S.?

This paper examines whether migrants from the Northern Triangle countries in Central America come to the U.S. primarily because of “pull” factors or because of the “push” factors that motivate them to leave their countries of origin. The paper concludes that migrants from the Northern Triangle countries will continue to arrive at the U.S. border until socioeconomic and security issues in their home countries are adequately addressed.

* * *

*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.

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