Legislative Bulletin – Thursday, August 15, 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

There were no immigration-related bills introduced or considered this week.

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

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

Trump Administration Issues “Public Charge” Rule Blocking Immigrants Who Previously Used or May Use Certain Public Assistance

The Trump administration issued a final rule on August 12 to broaden the definition of the term “public charge,” allowing federal officials to reject immigrants applying for a green card, an immigrant visa, or a temporary visa if they have previously accessed or are deemed likely to rely on certain forms of public assistance. The rule, which takes effect on October 15, will make it more difficult for legal immigrants to come to the United States.

The rule change will require immigration officials to take into account whether an individual uses or is likely to use an expanded list of noncash public benefits, including most forms of Medicaid, the Supplemental Nutrition Assistance Program (food stamps), and housing vouchers. It will also require immigration officials to weigh the “totality of circumstances” when determining whether an individual is likely to become a public charge, including whether the individual has a medical condition that may affect the individual’s ability to work and/or whether the individual has assets, resources, or an annual income to support him or herself and all dependents, among other considerations. The regulation defines public charge as an individual who “is more likely than not” to receive one or more of the restricted public benefits for an aggregate of 12 months or longer during a 36-month period.

The new regulation will not be retroactive. In addition, immigration officials will not consider enrollment in the Children’s Health Insurance Program (CHIP), school lunch programs, and the use of Medicaid by children, pregnant women and new mothers toward a public charge determination. The regulation will also not apply to refugee, asylees, victims of domestic violence and children with special immigrant juvenile status (SIJS). The federal government estimates that the regulation will impact around 382,000 people seeking to adjust their immigration status, though some immigration advocates claim it could cut legal immigration in half.

Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services (USCIS), defended the regulation on August 13 by describing public charges as a “burden on the government” and offering that the “The New Colossus” poem displayed inside the Statue of Liberty’s pedestal should read, “Give me your tired and your poor – who can stand on their own two feet and who will not become a public charge.” Later that same day, Cuccinelli said the poem “was referring back to people coming from Europe,” arguing that it specifically referred to those leaving European class-based societies.

Critics of the regulation argued that it will disproportionately affect poor immigrants and lead to increased poverty and worse health outcomes for many immigrants who may choose to avoid government assistance out of fear it will impact their future in the U.S. After the rule was proposed in the Federal Register in 2018, agencies across the country reported decreased enrollment in a federal nutrition program aimed at pregnant women and children.

The regulation is expected to face several lawsuits. On August 13, San Francisco and Santa Clara counties filed the first lawsuit challenging the regulation, arguing that it will worsen the well-being of their residents, increase public health risks and financially harm the counties. On August 14, a coalition of 13 states led by Washington sued the Trump administration over the regulation, arguing it “effects a radical overhaul of federal immigration law.” States involved in the lawsuit include Virginia, Colorado, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico and Rhode Island. An immigration advocacy group announced on August 12 that it also plans to challenge the regulation.

The regulation was released after Stephen Miller, a senior White House adviser, pressured the Department of Homeland Security (DHS) to move faster on the policy. The State Department already changed its guidance in January 2018 to expand the criteria for denying visa applications on public charge grounds. Following the State Department’s change, the number of immigrant visas from Mexico rejected on public charge grounds increased from seven in fiscal year (FY) 2016 to 5,343 in the first 10 months of FY 2019. The U.S. Department of Justice (DOJ) also plans to issue a companion public charge regulation, which would make a significant number of legal immigrants, including green card holders, deportable if they use certain public benefits.

ICE Conducts Largest Raid in More Than a Decade, Arresting 680 Undocumented Workers

Immigration and Customs Enforcement (ICE) conducted multiple worksite raids at poultry farms and processing facilities across Mississippi on August 7, apprehending about 680 immigrants, some of them parents, who were believed to be working in the U.S. without authorization and taking them away on buses. Witnesses said ICE agents came into the buildings and ordered employees to walk outside and line up to check their legal status. An ICE spokesperson said the operation came after a yearlong investigation. The raids were the largest since a December 2006 enforcement operation at a meat processing company, in which more than 1,200 people were apprehended.

Photographs and videos showed children weeping for their parents and huddled on the floor of a gymnasium because they returned home from school to find no one at home. ICE said it did not notify the state’s Department of Child Protection Services and local schools before the raids, in part to keep the operation closely guarded. An ICE official said the agency is “a law enforcement agency, not a social services agency.”

Community leaders in Forest, Mississippi brought the children to a gymnasium and provided food and other donated items. The children, usually fighting back tears, spoke to reporters. One 11-year old girl asked the Trump administration to release her parents, stating, “Government please show some heart. . . . Let my parents be free.” ICE said that about 300 of the 680 people detained in the raids were eventually released that evening on “humanitarian grounds,” including many of those who had children. According to ICE, single parents were released as well as at least one parent in a situation where both parents had been apprehended. The individuals were released pending their removal proceedings in immigration court and continue to face deportation. The raids left the Mississippi immigrant community in a state of uncertainty.

The raids prompted public demonstrations and criticism from Democratic lawmakers, who said it left children at risk. Critics also condemned the raids’ timing – only just days after the hate crime shooting in El Paso, Texas that targeted the immigrant community. In addition, the raids led to criticism that the employers of the Mississippi poultry facilities would likely not face prosecution or fines for hiring undocumented workers. The contradiction prompted questions of a double standard for employers and undocumented workers. Criticism mounted as more than 100 employees of one of the raided poultry plants were terminated on August 13.

Mass Shooting in El Paso Considered Domestic Terrorism Based on Anti-Immigrant Views

Authorities are treating the mass shooting at a Walmart store in El Paso, Texas, in which 22 people were killed and 24 were injured, as an incident of domestic terrorism after it was discovered that the gunman had published an anti-immigrant manifesto and later told investigators he had targeted Mexicans in the shooting. The manifesto, posted online before the attack, described a potential mass shooting as a response to an “invasion of Texas” by Hispanic immigrants. The writing reportedly claims that Hispanic immigrants pose an ethnic and cultural threat to the United States.

The mass shooting in El Paso prompted strong reactions from lawmakers and other public figures. Senator Ted Cruz (R-Texas) said the shooting was “a heinous act of terrorism and white supremacy.” Democratic lawmakers called on the Senate and House to return from recess to consider gun control and anti-white nationalism legislation, in particular after another shooting the next day in Dayton, Ohio. After the shootings, President Trump faced criticism for his rhetoric on immigrants, including reports that his campaign ads refer to an “invasion.” President Trump condemned the shootings on August 5, as well as “racism, bigotry and white supremacy,” and visited El Paso and Dayton on August 8. President Trump’s visits were deemed unusual and led to further criticism.

Mexican officials also denounced the mass shooting in El Paso, in which eight Mexican nationals were among the fatalities. Marcelo Ebrard, Mexico’s Foreign Minister, said Mexico is considering taking a number of actions in response to the attack, including criminally charging the perpetrator in Mexican courts, seeking to extradite the suspect and supporting a lawsuit against the seller of the weapon.

ICE Officers Receive Discretion to Deport Crime Victims Waiting for U Visas

Immigration and Customs Enforcement (ICE) issued a new directive on August 2 to provide ICE officers with more discretion to deport crime victims who may be eligible for U visas. Under the new directive, ICE will no longer request initial prima facie determinations as to whether a U visa petition is likely to be approved from USCIS, the agency in charge of granting or denying a U visa petition. Prior to the change, ICE officers would generally halt deportation proceedings when USCIS made a positive determination that the individual could be eligible for a U visa. The new directive states that ICE officers will have the sole discretion to “review the totality of the circumstances” to determine whether an individual’s deportation proceedings should be halted while they wait for a final decision on their U visa petition.

USCIS grants U visas to victims of certain crimes who are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. USCIS is currently taking up to four years to adjudicate U visa petitions, in part because the agency faces significant application backlogs and the number of U visas granted each year is capped at 10,000. Advocates argue that the new directive could leave individuals who are waiting for a final decision on their U visa petition vulnerable to ICE arrests and possible deportation, making victims less likely to report crimes to law enforcement.

Border Apprehensions Fall Amid Efforts to Block Asylum Seekers

DHS acting secretary Kevin McAleenan announced on August 8 that the number of apprehensions along the Southern border decreased by about 21 percent to 82,000 in July, down from about 104,000 in June This also represents a 43 percent decrease from May, when 144,000 individuals were apprehended along the Southern border. McAleenan stated that the reduction in the flow of migrants and the $4.5 billion in emergency supplemental funding passed by Congress in July have allowed DHS to “dramatically mitigate the challenging overflow conditions in our border facilities.”

Mark Morgan, acting commissioner at U.S. Customs and Border Protection (CBP), credited the decline in migrant apprehensions in July to President Trump’s immigration enforcement policies, some of which have made it harder for migrants to apply for asylum. Morgan said the decline in apprehensions is “a direct result of the negotiations of [President Trump] and this administration specifically with our international partners.” However, CBP data shows that border apprehensions have fallen from June to July in nine of the last ten years, just as temperatures increase. In addition, several of the administration’s policies have been blocked by the federal courts.

The Trump administration reached a “safe third country” agreement with Guatemala in July that would require asylum seekers who travel through Guatemala on their way to the U.S.-Mexico border to first seek protection in that country. On August 11, Alejandro Giammattei won Guatemala’s presidential election after voicing concern about the agreement. Giammattei has said that the agreement “is not right for” Guatemala and pledged to seek improvements to the deal.

USCIS Announces Plans to End Filipino World War II Veteran and Haitian Family Reunification Parole Programs, Close All but Seven International Offices

USCIS announced on August 2 that it plans to terminate two categorical parole programs, known as the Filipino World War II Veterans Parole and the Haitian Family Reunification Parole, that allow for certain family members of U.S. citizens to enter or remain in the United States while they wait for their family-based green card applications to become available. The Filipino World War II Veterans program, which went into effect in June 2016, allows Filipino veterans from World War II who are U.S. citizens to request parole for certain family members, allowing the family members to enter the U.S. “before their immigrant visas become available.” During World War II, more than 250,000 Filipinos enlisted to fight alongside American troops. While thousands of Filipino veterans were given permission to stay in the United States and obtain U.S. citizenship, many were unable to bring their families with them. According to a report by Immigration Impact, an estimated 6,000 elderly Filipino World War II veterans are still alive and potentially waiting to be reunified with their families.

The Haitian Family Reunification program similarly permits certain U.S. citizens and lawful permanent residents (LPRs) to apply for parole for their family members in Haiti so that they can come to the U.S. before their immigrant visa priority date.

USCIS said it plans to end the programs to fulfill President Trump’s executive order on border security and immigration enforcement. Ken Cuccinelli, acting director at USCIS, argued the programs allowed people “to skip the line” and were not authorized by Congress. Advocates and leaders in the Filipino-American community criticized the decision to end the parole programs, calling the move “cruel and inhumane.”

On August 9, Cuccinelli confirmed that USCIS will close all but seven of USCIS’s international offices by August 2020. Currently, the agency operates about 20 international offices that process refugee applications, assist with family reunification, and help assist with military naturalizations. USCIS previously announced that it planned to close many of its international offices and transfer their operations to State Department sites abroad. USCIS offices in Beijing, Guangzhou, Guatemala City, Mexico City, Nairobi, New Delhi and San Salvador will remain open.

Legal

Federal Judge Vacates Asylum Ban for Migrants who Crossed Between Ports of Entry

On August 2, a federal judge in the District of Columbia vacated President Trump’s proclamation barring migrants from applying for asylum if they cross the U.S.-Mexico border between ports of entry. U.S. District Judge Randolph Moss ruled that the policy violates the Immigration and Nationality Act (INA), because individuals “have a statutory right to seek asylum regardless of whether they enter the United States at a designated port of entry,” as well as the Administrative Procedures Act (APA), which governs the federal rulemaking process. Judge Moss’s ruling follows a separate ruling from San Francisco-based U.S. District Court Judge Jon Tigar who issued a nationwide injunction in November 2018 blocking the policy. The Supreme Court upheld Judge Tigar’s nationwide injunction in December 2019. Advocates lauded Moss’s ruling, noting that the ruling signifies that requesting asylum is not against U.S. law irrespective of how an individual enters the country.

The measure, which would have limited access to asylum for migrants who crossed the U.S. border between ports of entry without proper documentation, targeted asylum seekers traveling from Central America. The Trump administration subsequently issued a separate interim final rule to require migrants traveling to the U.S. Southern border by land to apply for and be denied denied asylum by one of the countries they pass through before seeking protection in the U.S. Tigar issued a preliminary injunction in July 2019 blocking that policy.

Justice Department Moves to Decertify Immigration Judges Union

On August 9, DOJ moved to decertify the union representing the nation’s 440 U.S. immigration judges. DOJ filed a petition with the U.S. Federal Labor Relations Authority to review whether it should rescind the National Association of Immigration Judges’ certification, arguing that its members are “management officials” who make policy and therefore not eligible for an union.

Judge Ashley Tabaddor, the union’s president, pushed back against the effort, arguing that immigration judges do not set policies and do not manage staff, but provide “decisions on the basis of case specific facts and the nation’s immigration laws.” Tabaddor also stated that the DOJ’s decision is an attempt to “disband and destroy the union” because it has at times sparred with the Trump administration. The union has generally requested more independence for immigration judges and criticized some of the Trump administration’s policies, including efforts to require judges to review cases faster by implementing a quota system tied to their performance.

Appeals Court Panel Voices Skepticism about Maintaining Injunction Blocking TPS Rescission

A three-judge panel of the Ninth Circuit Court of Appeals heard arguments on August 14 about the Trump administration’s decision to terminate Temporary Protected Status (TPS) for about 300,000 individuals from Haiti, Sudan, Nicaragua and El Salvador. The three-judge panel reportedly voiced skepticism about maintaining a lower court’s temporary injunction that blocked the administration from ending the TPS protections. In addition, the panel appeared to disagree with the plaintiff’s argument that the Trump administration’s decision to end TPS designation for those countries was driven by racial animus. U.S. Appeals Court Judge Consuelo M. Callahan said it “seems to me the record is fairly thin” on evidence of racist motivations, while U.S. Appeals Court Judge Ryan D. Nelson said that the decision to end TPS designations for those countries was made before President Trump made comments disparaging certain nations from Central America and Africa. The plaintiffs argued that the president’s comments came within days of the rescission and that the policy violates the Equal Protection Clause of the U.S. Constitution. The three-judge panel could issue a ruling at any time.

GOVERNMENT REPORTS

Department of Justice (DOJ) and Department of Homeland Security (DHS) Offices of Inspector General (OIGs): A Joint Review of Law Enforcement Cooperation on the Southwest Border Between the Federal Bureau of Investigations (FBI) and Homeland Security Investigations (HSI), July 31, 2019

This report examines law enforcement cooperation along the Southern border between the DOJ’s FBI and DHS’ HSI. The report finds that the FBI and HSI share a number of the same statutory authorities to investigate certain crimes, underscoring the need for agents to share information and effectively manage investigative overlap. The report concludes that the FBI and HSI should take action to address unclear policies and negative perceptions that inhibit cooperation.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

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.

Expanded Expedited Removal

This is a summary and short discussion of the Trump administration’s new guidance expanding expedited removal to apply to most undocumented persons who entered the United States between ports of entry and cannot prove they have resided in the U.S. for more than two years.

Eminent Domain Along the Southern Border: Government Seizures of Private Property

This fact sheet provides an overview of eminent domain and how the federal government utilizes it to construct physical barriers, including fencing, along the U.S.-Mexico border.

* * *

*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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