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. 6657
Fund and Complete the Border Wall Act
The bill would fund a wall along the U.S.-Mexico border by penalizing countries for undocumented immigrants, transferring $2,000 from that country’s foreign aid each time an undocumented immigrant from that country is apprehended at the border. The bill would also charge a fee for all money transfers to individuals outside the United States.
Sponsored by Representative Andy Biggs (R-Arizona) (5 cosponsors – 5 Republicans, 0 Democrats)
08/07/2018 Introduced in the House by Representative Biggs
08/07/2018 Referred to the House Committees on Homeland Security, Ways and Means, the Judiciary, Foreign Affairs, Financial Services, Education and the Workforce, and Appropriations
H.R. 6667
Afghan and Iraqi Allies Resettlement Improvement Act
This bill would direct the Department of Health and Human Services (HHS) to survey Afghan and Iraqi Special Immigrant Visa (SIV) holders as part of their Annual Survey of Refugees (ASR), direct the Department of State to deliver information to SIV applicants about life in the U.S. to assist with their adjustment process, and direct the Department of State and Defense to jointly establish a program to offer SIV holders employment as translators, interpreters and cultural awareness instructors.
Sponsored by Representative Doris Matsui (D-California) (3 cosponsors – 0 Republicans, 3 Democrats)
08/10/2018 Introduced in the House by Representative Matsui
08/10/2018 Referred to the House Committees on the Judiciary, Armed Services, and Foreign Affairs
LEGISLATIVE FLOOR CALENDAR
The U.S. Senate will be in session the week of Monday, August 20, 2018.
The U.S. House of Representatives will be in recess until Tuesday, September 4, 2018.
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
ICE Triples Arrests of Undocumented Immigrants without Criminal Records
According to an NBC News analysis of U.S. Immigration and Customs Enforcement (ICE) data, apprehensions of undocumented immigrants without a criminal record have more than tripled in the first 14 months of the Trump administration, as compared to the last 14 months of the Obama administration. ICE arrests of undocumented immigrants without criminal records increased 203 percent over this time period from 19,128 to 58,010. During the same time period, arrests of undocumented immigrants with criminal records increased just 18 percent.
The surge in arrests of non-criminal undocumented immigrants follows President Trump’s executive order on interior immigration enforcement, which essentially made every undocumented immigrant in the U.S. a priority for deportation. The administration’s prioritization of all undocumented immigrants, along with a policy of encouraging collateral arrests, has led ICE to apprehend virtually all undocumented immigrants it encounters during enforcement actions, including those without a criminal record. Previously, ICE enforcement actions were targeted, focusing on individuals convicted of serious crimes, gang members and national security threats, and collateral arrests were discouraged. Immigration advocates note that targeting undocumented immigrants without criminal records is an inefficient use of resources, since it prevents ICE from focusing its limited resources on threats to public safety.
Border Crossings Drop Slightly in July, But Number of Family Members Crossing Remains Stable
U.S. Customs and Border Protection (CBP) figures show that apprehensions at the Southern border declined for the second consecutive month in July, falling from 34,095 in June to 31,303 in July, a decline of eight percent. However, the CBP data indicated that the number of people traveling in family units apprehended at the border remained virtually unchanged, declining from 9,434 in June to 9,258 in July (a decrease of only 1.9 percent). Family members accounted for a larger share of individuals apprehended crossing the Southern border in July (29.6 percent) than in June (27.7 percent).
A Department of Homeland Security (DHS) spokesperson declared that the decrease in overall apprehensions “shows that when there are real consequences…the conduct of those considering crimes will change.” Yet, the modest decline in apprehensions of those travelling in family units suggests that widely-publicized administration enforcement initiatives, including the controversial zero-tolerance policy, are only having a limited effect in deterring families from coming to the U.S.
Many factors may impact increases of decreases of attempted border crossings. Historically, apprehensions at the border surge in the spring due to favorable weather conditions, correspondingly declining in the summer months when high temperatures serve as a deterrent to potential border crossers While the summer heat may have impacted the apprehension numbers, the relatively stable level of family members apprehended in July is noteworthy, because July was the first full month after the Trump administration largely stopped separating families at the border.
Separately, issues of border deterrence were raised in a report by the Government Accountability Office (GAO). The GAO found that CBP failed to fully assess where physical barriers along the border would be effective in deterring border crossings. The report also found that DHS did not properly consider the full cost of building the Trump administration’s proposed wall, failing to consider important factors like topography and private ownership of border lands. The report noted that DHS’s failure to calculate the full cost of the wall and to properly assess where physical barriers would be effective “faces an increased risk that the Border Wall System Program will cost more than projected, take longer than planned or not fully perform as expected.”
Trump Administration Considering Rules Penalizing Immigrants who Accept Public Benefits
The Trump administration is reportedly preparing to issue a proposed rule that would penalize immigrants who receive or whose family members receive any of a large number of public benefits. While the proposal has not been finalized and has not been released, it is expected to require U.S. Citizenship and Immigration Service (USCIS) officers to use stricter rules when determining whether the applicant can be considered or is likely to become a “public charge,” and subsequently barred from receiving certain visas or (potentially) permanent residency. The term “public charge” has traditionally been defined fairly narrowly, referring to an individual who is dependent on government assistance and current guidelines focus on those who receive cash welfare payments. Under the proposed rule, noncitizens – including those here legally – would face negative immigration consequences if they or their family members accept almost any form of governmental assistance, including health insurance subsidies, food stamps, certain tax credits, and other “non-cash” public benefits.
While the proposal has not been finalized, it is already discouraging immigrants from requesting public benefits that they qualify to receive, including benefits for their U.S. citizen children. The proposed rule could affect millions of immigrants in the U.S., with at least one million in New York City alone.
Provost Named Border Patrol Chief; Vitiello Officially Nominated to Serve as ICE Director
CBP announced on August 9 that Carla Provost, acting chief of the Border Patrol, has been chosen to lead the Border Patrol on a permanent basis, becoming the first woman chief of the agency. Provost is a 23-year veteran at CBP, previously as serving deputy assistant commissioner of the Office of Professional Responsibility at CBP and later as the Border Patrol’s deputy chief during the Obama administration.
On August 6, President Trump formally nominated Ronald Vitiello to be ICE director. Vitiello had been serving as acting director since former acting director Tom Homan retired in June, has also previously served as Border Patrol chief and acting deputy commissioner at CBP. The Senate will consider Vitiello’s nomination in the coming months.
U.S. Army Stops Discharge of MAVNI Recruits
The U.S. Army has stopped discharging immigrant recruits who enlisted through the Military Accessions Vital to the National Interest (MAVNI) program, one month after a report by the Associated Press (AP) found that dozens of MAVNI reservists and recruits were discharged or had their contracts cancelled. The U.S. Army said it is stopping the discharges in order to review the administrative separation process. In a July 20 memo to high-ranking Army officials, Acting Assistant Secretary of the Army for Manpower and Reserve Affairs Marshall Williams stated that “effective immediately, you will suspend processing of all involuntary separation actions” and directed he be notified before a determination is made in any discharge case involving a MAVNI recruit. It remains unclear whether the memo puts an end to the discharge policy or if it only represents a pause in discharges. MAVNI reservists and recruits who were discharged prior to the memo said their discharges were still in place as far as they knew.
The MAVNI program allowed qualified noncitizens in the U.S. to enlist in the military if they had specialized medical or language skills and afforded the opportunity to obtain U.S. citizenship. According to the July 5 AP report, the army began quietly discharging dozens of MAVNI reservists and recruits, often not explaining the reason for their discharge or saying that they had been labeled a security risk, including having relatives abroad. A 2017 report by the RAND Corporation found no evidence that the MAVNI program created security risks.
Legal
Federal Government Yet to Reunite 559 Children, Releases Draft Framework to Reunify Separated Kids with Deported Parents
The federal government revealed in a court filing to U.S. District Court Judge Dana Sabraw on August 9 that 559 children between the ages of 5 and 17 have still not been reunited with their families after they were separated at the Southern border. Of those, 386 children have parents who were already deported and about 50 have parents who were released from ICE custody into the U.S. but have not been located by the government. In addition, more than 140 children are ineligible for reunification because of a “red flag” warning, which indicates one or more agencies have determined that the parent has a criminal record. The number of children yet to be reunified decreased slightly this week from 572 children last week.
On August 10, the Trump administration submitted an updated plan for reuniting children with the nearly 400 parents whom the government deported, receiving praise from Judge Sabraw. Sabraw — who has overseen the reunification process and imposed multiple deadlines for reuniting families — emphasized that responsibility for the process lies fully with the government, but asked the Justice Department to share information with the American Civil Liberties Union (ACLU) and others involved in the case on a rolling basis to speed up the reunification process. According to officials, all but 26 of the 386 parents identified have been contacted.
Judge Hanen Hears Arguments on Ending DACA; No Ruling Yet
U.S. District Judge Andrew Hanen heard arguments on August 8 on whether he should issue a preliminary injunction ending Deferred Action for Childhood Arrivals (DACA), but had not issued a ruling as of the morning of August 16.
During the hearing, Texas Attorney General Ken Paxton argued that DACA causes “irreparable” harm to the states because it allegedly leads to additional costs in health care, law enforcement and education and increased competition for jobs. MALDEF noted that the state’s claims about the effect of DACA recipients on state resources were “grossly inflated” and questioned why Texas had waited six years to claim that DACA was causing irreparable damage. Research shows DACA recipients contribute, on net, roughly $3.4 billion annually to the federal treasury and millions in state and local taxes.
The case follows a lawsuit aiming to end DACA filed by Texas and six other states against the Trump administration. The Trump administration previously established that it believes DACA is unconstitutional, leaving the Mexican American Legal Defense and Educational Fund (MALDEF) and the state of New Jersey to intervene to argue that it should remain in place. On August 9, President Trump praised the lawsuit to end DACA, saying he hopes that it is “successful” and that the hearing “went quite well.”
Three other federal judges have so far stopped the Trump administration from ending DACA and permitting DACA renewals to be processed. One of those judges, U.S. District Judge John D. Bates, issued an order on August 3 rejecting the government’s request to reconsider his previous decision that the memorandum ending DACA be fully vacated. Bates ordered that, unless the administration could get the D.C. Circuit Court of Appeals to put a hold on his decision, it would have to start accepting new DACA applications on August 23 and operate the program as it was originally implemented. Bates said the Trump administration had failed to demonstrate that it had thought through the consequences of ending DACA and had not engaged in a serious legal analysis of DACA before stating it was unconstitutional. If Hanen rules in favor ending DACA, as he is expected to do, the conflicting orders between multiple district courts could lead to the issue coming up before the U.S. Supreme Court.
In 2015, Hanen issued a ruling that blocked the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would have extended protections to other Dreamers and undocumented parents of U.S. citizen and Lawful Permanent Resident (LPR) children.
On August 13, the parties submitted a briefing to Hanen concerning whether DACA violated the Administrative Procedure Act (APA), which requires federal regulations to undergo formal notice-and-comment rulemaking procedures. Hanen asked to be briefed on the issue on August 8, during which he asked both sides how DACA compares to his 2015 DAPA ruling, in which he found that DAPA did not comply with the APA.
Supreme Court Ruling Results in Some Deportation Orders Thrown Out
A June decision by the U.S. Supreme Court has caused several deportation orders and cases to be thrown out, providing a lifeline to some undocumented immigrants seeking to stay in the U.S. In a ruling that drew little attention at the time, the Supreme Court, by an 8 to 1 vote, held in Pereira v. Sessions that a notice to appear that does not have the hearing’s date, time and place is not adequate notice under the law. The Court held that an individual cannot be expected to appear if that information is not included on the notice.
Since the ruling, immigration lawyers have been arguing that undated notices received by their clients are not valid, with at least 50 motions citing Pereira filed in San Francisco alone. Judges have responded in varying ways, with some refusing to issue deportation orders for undated notices, while others have rejected this argument. ICE has been litigating the issue and appealing judges’ decisions to throw out deportation cases on these grounds.
Federal Judge Threatens to Hold Sessions and Other Officials in Contempt
In a hearing on August 9, U.S. District Court Judge Emmet Sullivan dramatically halted a deportation of a Salvadoran mother and her child after threatening to hold Attorney General Jeff Sessions and other government officials in contempt of court.
During a hearing on the asylum claims of the mother and child, Justice Department attorneys acknowledged that the two plaintiffs were on a plane back to El Salvador. The deportation violated an earlier agreement between the plaintiffs’ lawyers and the Justice Department that any deportation would be delayed until after the hearing. The hearing itself was to address the ACLU’s request that the plaintiffs remain in the country for the duration of the lawsuit.
Judge Sullivan, an appointee of President Reagan, called the development “outrageous” and “not acceptable” and ordered the mother and daughter to be returned to the U.S. immediately. Judge Sullivan became visibly upset and raised his voice ordering the plane be turned around either in the air or on the ground once it landed. He stated that if the pair was not returned he would order Sessions, DHS Secretary Kirstjen Nielsen, U. S. Citizenship and Immigration Services (USCIS) Director Lee Francis Cissna, and Director of the Executive Office for Immigration Review (EOIR) James McHenry to appear in court and explain why he should not hold them in contempt of court.
The two plaintiffs are members of an eight- person lawsuit represented by the ACLU against the federal government challenging Matter of A-B-, a June ruling by Sessions that would make it nearly impossible for victims of domestic violence and gang violence to qualify for asylum.
State and Local
Worksite Raid Shakes Nebraska Community
On August 8, ICE conducted a large-scale worksite raid in a tomato greenhouse and potato processing facility in O’Neill, Nebraska, a town of 3,700 people, apprehending about 133 suspected undocumented workers as they arrived on a Wednesday morning to work. Residents rallied to the defense of the impacted families, holding a candlelight vigil outside of the ICE facility where the apprehended individuals were taken, and leading school officials, church leaders and community organizers to provide assistance to affected immigrant families. The action also faced criticism from Rep. Don Bacon (R-Nebraska) and Senator Ben Sasse (R-Nebraska), among others.
The raid was the result of a 15-month long investigation by ICE’s Homeland Security Investigations (HSI) division and comes amid a recent surge in worksite enforcement actions by the Trump administration. It focused on Juan Pablo Sanchez Delgado, an individual who owned a local grocery store and operated a Mexican restaurant in O’Neill. Delgado is accused of recruiting undocumented workers to various business across Nebraska, including the tomato greenhouse and the potato processing facility.
GOVERNMENT REPORTS
Government Accountability Office (GAO): Southwest Border Security: CBP is Evaluating Designs and Locations for Border Barriers But Is Proceeding Without Key Information, July 2018
The report finds that U.S. Customs and Border Protection (CBP) selected locations along the U.S.-Mexico border without fully assessing where they were needed to prevent border crossings and without accounting for factors like varying terrain and land ownership in considering the cost of building along each segment of the border. The report notes that DHS “faces an increased risk that the Border Wall System Program will cost more than projected, take longer than planned or not fully perform as expected.”
Congressional Research Services (CRS): Trends in the Timing and Size of DHS Appropriations: In Brief, August 7, 2018 (by William L. Painter)
The report provides an overview of trends in the timing and size of homeland security appropriations bills beginning with the Department of Homeland Security’s (DHS) first appropriations cycle, covering fiscal year (FY) 2004.
U.S. Government Accountability Office (GAO): Nonimmigrant Visas: Outcomes of Applications and Changes in Response to 2017 Executive Actions, August 7, 2018
This report examines nonimmigrant visa screening and vetting, including outcomes and characteristics of adjudicated nonimmigrant visa applications from FY 2012 through FY 2017 and key changes made to the nonimmigrant visa adjudication process in response to President Trump’s executive actions.
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
Fact Sheet: E-Verify and Error Rates in E-Verify
The fact sheet on E-Verify provides an overview of the program, which allows employers to check their employee’s work eligibility. The blog post on error rates in E-Verify provides statistics and graphs to explain the error rate in the program and the impact it has on both employers and employees.
Fact Sheet: Immigration Courts
This fact sheet provides an overview of the immigration court system, including what rights immigrants have in the immigration court system, how many immigration judges there are, and the current case backlog and what is being done to address it, among other points.
Red States Will Feel Impact of Census Citizenship Question
The article discusses the impact that a question on respondents’ citizenship in the 2020 census is likely to have on red states, including its impact on congressional representation and federal funding.
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*This Bulletin is not intended to be comprehensive. Please contact Christian Penichet-Paul, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Christian can be reached at cpenichetpaul@immigrationforum.org. Thank you.