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Legislative Bulletin — Friday, September 8, 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. 

Federal

Reports: Migrant Families Crossing U.S.-Mexico Border Set New Record in August 

In August 2023, a record number of migrant families reportedly crossed the United States-Mexico border unauthorized, an emerging trend that could potentially compromise the Biden administration’s ability to manage irregular migration ahead of an election year. 

The U.S. Border Patrol apprehended around 91,000 migrants in family units last month, surpassing the previous monthly record of 84,486 under the Trump administration in May 2019, according to reports from the Washington Post and the New York Times. Families comprised the largest demographic crossing the border in August, surpassing single adults for the first time during President Joe Biden’s tenure in the Oval Office.

Since May, removal flights have repatriated over 17,000 recently arrived members of families, including children. Meanwhile, a relatively new enforcement effort targeting families for fast-track deportations, the Family Expedited Removal Management program (FERM), has started placing some asylum seekers under GPS monitoring and curfews while they undergo initial protection screenings.

 But only about 80 parents and children have been deported under FERM so far, according to CBS News, and while the program has expanded rapidly in recent months, just about 2,600 people have been enrolled in the expedited process — a relatively small number compared to those crossing. 

At the same time, advocates have raised significant due process concerns about FERM, as they say migrants face barriers to making their case for protection under such an extreme time crunch.  

The Biden administration is also debating whether to pursue a new policy response that would force asylum-seeking families to wait for screenings — and potential deportations — near the border, restricting their mobility within the U.S., the Los Angeles Times reported Thursday.

In August more generally, the Border Patrol recorded over 177,000 arrests at the southern border, up more than 30% from July, while overall migrant encounters there (both at and between ports of entry) increased to 230,000 — a nearly 60% uptick from the more than two-year low in June, and the highest monthly tally so far this calendar year. 

Erin Heeter, a spokesperson for the Department of Homeland Security (DHS), said the Biden administration is trying to curb irregular entries at the U.S.-Mexico border by expanding alternative pathways while imposing stricter penalties for unauthorized crossings. 

But as with every year, the U.S. is seeing ebbs and flows of migrants arriving fueled by seasonal trends and the efforts of smugglers to use disinformation to prey on vulnerable migrants and encourage migration,” Heeter said in a statement.  

Although seasonal migration does ebb and flow, until recently, the number of people migrating tended to taper off during the U.S.’s  hottest months over the summer. Yet as migrants and asylum seekers — including families — increasingly weather extreme heat to cross the U.S.-Mexico border, the number of dead and missing keeps growing. Already in 2023, over  500 people have died trying to cross the U.S.-Mexico border, the New York Times reported, in part because of sweltering heat and humidity.

Lawmakers Push Border Security, Wall Funding Amid Looming Shutdown  

Immigration and border security are becoming major flashpoints in negotiations for even a temporary stopgap to continue to fund the federal government and avoid a potential shutdown next month, as far-right lawmakers in the House of Representatives demand a crackdown on migrants and asylum seekers as part of any deal. 

Members of the House Freedom Caucus are insisting on including H.R. 2, the Secure the Border Act of 2023, in any spending agreement — even a short-term one, the New York Times reported. In practice, the sweeping bill package would severely restrict the right to seek asylum in the U.S., curtail other existing lawful pathways, place unnecessary pressure on border communities, intensify labor shortages faced by small businesses and essential industries, establish new criminal penalties, and make other significant changes to U.S. immigration law.  

In May, at a time of heightened consternation and uncertainty around border operations amid the end of the Title 42 public health order, H.R. 2 narrowly squeaked through the House. But its draconian provisions are likely a non-starter in the Democratic-controlled Senate, rendering any spending bill with it attached all-but-moot. 

House Republicans are also trying to include over $2 billion in border wall support as part of the bill to fund the Department of Homeland Security (DHS), alongside other controversial measures such as restrictions on gender-affirming care for immigrant detainees and funding drops around climate change and diversity initiatives, according to CBS News

Temporary Protected Status Expanded for South Sudan, Re-Registration Period Extended for Other Countries 

On September 5, Homeland Security Secretary Alejandro N. Mayorkas announced the extension and redesignation of South Sudan for Temporary Protected Status (TPS), a humanitarian benefit that offers short-term deportation protections and work eligibility for certain nationalities who cannot safely return home because of conflict, disaster, or other emergent circumstances.

The Biden administration attributed the extension and redesignation (which will last for 18 months, from Nov. 4, 2023 through May 3, 2025) to “ongoing armed conflict and extraordinary and temporary conditions in South Sudan.” The extension will make it possible for around 133 current South Sudanese beneficiaries to retain TPS through May 2025, so long as they continue to meet eligibility requirements, while the redesignation could let an estimated 140 more people access the protection.

DHS already announced the extension and redesignation of TPS for Sudan last month. 

In addition, the federal government announced this week that it was extending the TPS re-registration period for current designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan from 60 days to 18 months.  

President Biden Hosts Costa Rica’s President Chaves to Discuss Migration, Other Issues

On August 29, President Joe Biden met at the White House with his Costa Rican counterpart, President Rodrigo Chaves, to discuss a number of bilateral issues, including migration.

During the meeting, both presidents reaffirmed their commitment to advancing the goals of the Los Angeles Declaration on Migration and Protection – an accord signed by 21 nations of the Americas that seeks to expand legal migration pathways, support host countries with large migrant populations, and crack down on human smuggling networks.

Biden also committed to investing $12 million in Costa Rica through international organizations supporting the integration and processing of refugees and migrants in the country. This funding is particularly critical for Costa Rica, which is one of the world’s largest recipients of refugees and asylum seekers per capita.

Biden recognized Costa Rica’s willingness to allow the operation of Safe Mobility Offices, which give prospective immigrants, temporary workers, and refugees access to free screenings for potential lawful pathways to travel to the U.S. and beyond.

Finally, the Biden administration announced its intention to include Costa Rica among the Global Entry foreign country partners, an initiative that expedites procedures at U.S. ports of entry.

After the meeting, President Chaves highlighted that “Costa Rica has been and shall remain one of the strongest allies in the world regarding the economic and security interests” of the U.S.

Legal 

Appeals Court Allows Texas to Keep Its Floating Barriers in the Rio Grande

On September 7, the Fifth Circuit Court of Appeals said Texas could keep its buoy barriers floating in the Rio Grande for now, after a federal district judge had ordered them moved to the Texas riverbank a day earlier.

In a lawsuit brought by the Justice Department challenging Texas’s use of bright orange buoys to deter migration across the international river, Judge David A. Ezra issued a preliminary injunction Wednesday prohibiting Texas from building new or placing additional structures in the Rio Grande. He also ordered the state to move the current barrier to the bank on the Texas side.

“Governor [Greg] Abbott announced that he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier. Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters,” Ezra wrote in his decision. 

In response, Abbott’s office called the ruling “incorrect” and predicted it would be “overturned on appeal.” The Fifth Circuit granted Texas’s motion to stay Ezra’s order on Thursday, allowing the controversial buoys to remain in place for the time being.

State and Local 

Biden Administration Reminds Eligible Noncitizens to Apply for Work Permits as Tensions Rise with New York Leaders 

The United States Citizenship and Immigration Services (USCIS) has sent hundreds of thousands of emails and text messages to migrants and asylum seekers who are eligible for work authorization, in a new national information campaign to relieve financial pressure on cities and states by helping noncitizens to contribute to the U.S. workforce and become more self-sufficient. 

In the early days of the campaign, the Biden administration has targeted asylum petitioners and noncitizens who have been “paroled” into the U.S., which gives them the right to live stateside and work legally for the short-term. The Department of Homeland Security (DHS) has contacted Cubans, Haitians, Nicaraguans, Venezuelans, and Ukrainians who came to the U.S. through the administration’s new parole processes, as well as migrants who entered the country after making an appointment through the CBP One phone app and asylum seekers who already have pending applications for protection. 

The new work permit-focused messaging is part of the White House’s answer to New York Gov. Kathy Hochul (D), who met with Biden administration officials last week about how the federal government could better support her state’s response to the more than 100,000 newcomers who have arrived in New York City since spring 2022

Tensions between the Biden administration and state and local officials — particularly New York Mayor Eric Adams — have now reached a fever pitch, as cities far from the U.S.-Mexico border blame the federal government for a lack of leadership on how to respond to an increase in newly arrived migrants within their jurisdictions. 

Even prominent business leaders in New York have called on President Joe Biden and Congress to more quickly process both asylum applications and work permits, plus provide additional resources.

“There are labor shortages in many U.S. industries, where employers are prepared to offer training and jobs to individuals who are authorized to work in the United States,” they wrote in a letter last month urging expedited employment authorization processing. 

Meanwhile, Adams is facing renewed criticism himself after he made alarmist comments earlier this week about how migration is affecting life in his metropolis — a place famous for its Statue of Liberty as a beacon of welcome.

“The city we knew, we’re about to lose,” Adams said, according to the Intelligencer. “Let me tell you something, New Yorkers. Never in my life have I had a problem that I did not see an ending to. I don’t see an ending to this. This issue will destroy New York City.”

More than a third of New York City’s population of over 8 million were foreign born between 2017-2021, according to U.S. Census Bureau estimates, a testament to its history of and reliance on immigrants long before the most recent newcomers started arriving.

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 11 through Thursday, September 14, 2023.

The U.S. House of Representatives will be in session from Tuesday, September 12 through Friday, September 15, 2023.

UPCOMING HEARINGS AND MARKUPS

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

Unlocking America’s Potential: How Immigration Fuels Economic Growth and Our Competitive Advantage

Date: Wednesday, September 13, 2023 at 10:00 a.m. EST (Senate Budget Committee)

Location: 608 Dirksen Senate Office Building, Washington, D.C.

Witnesses:

David Bier, Associate Director of Immigration Studies, Cato Institute

Britta Glennon, Assistant Professor of Management, Wharton School of University of Pennsylvania, and Faculty Research Fellow, National Bureau of Economic Research

Laurens Van Beek, Software Developer and Former U.S. Visa Holder

Robert Rector, Senior Research Fellow, Center for Health and Welfare Policy, The Heritage Foundation

Ronil Hira, Associate Professor, Department of Political Science, Howard University

The Impact of Biden’s Open Border on the American Workforce

Date: Wednesday, September 13, 2023 at 10:15 a.m. EST (House Committee on Education and the Workforce)

Location: 2175 Rayburn House Office Building, Washington, D.C.

Witnesses: TBA

Terrorist Entry Through the Southwest Border

Date: Thursday, September 14, 2023 at 10:00 a.m. EST (House Judiciary Committee)

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

Witnesses: TBA

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. 

Department of Homeland Security Office of Inspector General (OIG); CBP Could Do More to Plan for Facilities Along the Southwest Border; Published August 29, 2023

This report recognizes improvements in U.S. Customs and Border Protection’s (CBP) ability to respond to increases in migration in recent years, while also acknowledging that “CBP prioritized short-term response over long-term planning and does not have a comprehensive policy that incorporates planning for both temporary and permanent facilities.”

Congressional Research Service (CRS); The Statutory Bars to Reentry into the United States; Published August 30, 2023

This report details various statutory bars to re-entry for those who accrue unlawful presence in the U.S. and are removed or depart the country. It also covers potential exceptions and waivers to these bars.

Congressional Research Service (CRS); Immigration Crimes: Improper Entry and Reentry; Published August 30, 2023

This report explores federal criminal statutes around improper entry and re-entry, while raising particularly relevant questions for Congress to consider. 

U.S. Government Accountability Office (GAO); Homeland Security: Joint Requirements Council Needs Leadership Attention to Improve Effectiveness; Published August 30, 2023

This report looks at the effectiveness of the Joint Requirements Council, which is meant “to identify opportunities for joint solutions and help use resources efficiently.”

Congressional Research Service (CRS); Migrant Assistance Through the FEMA Emergency Food and Shelter Program (EFSP); Published August 31, 2023

This report considers the Federal Emergency Management Agency’s (FEMA) financial support for migrant-related humanitarian relief efforts, in the context of current migration patterns and policy at the U.S.-Mexico border.

Congressional Research Service (CRS); Comparing DHS Component Funding, FY2024: In Brief; Published September 1, 2023

This report explores topics involving the Department of Homeland Security Appropriations Act, including comparisons between the FY 2023 and FY 2024 packages.

U.S. Government Accountability Office (GAO); Southwest Border: Additional Actions Needed to Address Cultural and Natural Resource Impacts from Barrier Construction; Publicly Released September 7, 2023

This report explores the cultural and natural resource impacts of border barrier construction between 2017 and January 2021.

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: The Office of Refugee Resettlement and Unaccompanied Migrant Children

This explainer gives a general overview of ORR’s purpose, before delving deeper into its work with unaccompanied children.  

Q&A: What to Know About the Biden Administration’s New Asylum Restrictions

This explainer provides an overview of the “Circumvention of Lawful Pathways” rule, the Biden administration’s post-Title 42 asylum restrictions.

CBP One: Fact Sheet and Resources Directory

This fact sheet and resources directory provides 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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