Legislative Bulletin — Thursday, August 19, 2021

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

 

S. Con. Res. 14

A concurrent resolution setting forth the congressional budget for the United States Government for fiscal year 2022 and setting forth the appropriate budgetary levels for fiscal years 2023 through 2031.

The concurrent resolution provides the framework for the passage of a $3.5 trillion budget package for fiscal year 2022. Concerning immigration, the budget resolution allocates $107 billion to the Judiciary Committee, including instructions for “lawful permanent status for qualified immigrants” and “investments in smart and effective border security measures.”

Sponsored by Senator Sanders (D-Vermont) (10 cosponsors—10 Democrats, 0 Republicans)

08/09/2021 Introduced in the Senate by Senator Sanders

08/11/2021 Resolution agreed in Senate with amendments by a 50 – 49 vote.

08/11/2021 The following five immigration-related amendments were filed:

S. Amdt. 3650, sponsored by Senator Chuck Grassley (R-Iowa), to prevent undocumented immigrants who have been convicted of a crime or have pending criminal charges from being granted lawful permanent residence in the United States. The amendment failed to pass after a 50-49 vote.

S. Amdt. 3742, sponsored by Senator Bill Hagerty (R-Tennessee), to provide sufficient resources to US Immigration and Customs Enforcement (ICE) to detain and deport a higher number of undocumented immigrants who have been convicted of a criminal offense in the United States. The amendment passed with a 53-46 vote.

S. Amdt. 3781, sponsored by Senator Ted Cruz (R-Texas), to prevent or limit the Department of Homeland Security (DHS) from departing from the use of Title 42 to expel unauthorized migrants. The amendment failed to pass after a 50-49 vote.

S. Amdt. 3795, sponsored by Senator Jerry Moran (R-Kansas), to strengthen the enforcement of immigration laws to address the “humanitarian crisis” at the southern border. The amendment also suggests increasing funding for border security measures, improving asylum processing, and reducing immigration court backlogs. The amendment passed with a 76-23 vote.

S. Amdt. 3797, sponsored by Senator Roger Marshall (R-Kansas), to allocate resources to test and treat migrants at the border and quarantine those who test positive for COVID-19. The amendment also suggests a prohibition on the transportation of migrants who do not have a negative COVID-19 test. The amendment passed with a 88-11 vote.

S. 2610

Intelligence Authorization Act for Fiscal Year 2022

The bill would instruct the Director of National Intelligence to submit a report on intelligence matters relating to the Visas Mantis program to the appropriate committees of Congress. The Visas Mantis program is a security review procedure designed to identify visa applicants who may pose a threat to US national security by illegally transferring sensitive technology.

Sponsored by Senator Mark Warner (D-Virginia) (0 Cosponsors)

08/04/2021 Introduced in the Senate by Senator Warner

08/04/2021 Referred to the Senate Committee on Intelligence

H.R. 4793

Protecting Personal Data from Foreign Adversaries Act

The bill would prohibit the issuance of visas to individuals who operate mobile applications and software that steal the personal data of US citizens and share such information with the Chinese Communist Party.

Sponsored by Representative Jack Bergman (R-Michigan) (0 Cosponsors)

07/29/2021 Introduced in the House by Representative Bergman

07/29/2021 Referred to the House Committee on Foreign Affairs and the Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will not be in session either the week of August 23 or the week of August 30, 2021.

The U.S. House of Representatives will be in session the week of August 23. On the week of August 30, the House of Representatives will be in session for committee work from Tuesday, August 31, through Thursday, September 2.

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

Senate Democrats Pass Budget Resolution, Move Forward with Reconciliation Process, Immigration Reforms

On August 11, in a party-line vote, the US Senate passed a $3.5 trillion budget resolution for fiscal year 2022. The budget resolution is the first stage of the budget reconciliation process, which allows Democrats and the Biden administration to avoid a Senate filibuster and pass legislation with a simple majority. The resolution — which will serve as a blueprint for the final spending bill — provides targeted spending and revenue levels for a variety of policy changes, including multiple immigration provisions. In the coming weeks, the details and extent of the provisions included in the outline will be hammered out by Senate committees in the form of an omnibus spending bill

As passed by the Senate, the budget resolution allocates $107 billion to the Judiciary Committee, which leading Senate Democrats are hoping to use to provide a pathway to citizenship for Dreamers, Temporary Protected Status (TPS) holders, undocumented farmworkers, and other essential workers. Democrats are also planning to allocate approximately $10 billion for smart and effective border security measures focused on infrastructure at legal entry points. According to a July 23 Axios report, the funds could be put toward facilities for handling asylum claims, additional staff for higher cross-border traffic areas, expanding immigration courts to address backlogs, alternatives to detention programs, and repairs of ports of entry.

During deliberation on the budget resolution, Senate Republicans were able to file a large number of amendments through a “vote-a-rama” process. The budget resolution faced five non-binding immigration-related amendments, out of which three passed. The successful amendments included one aimed at providing resources to detain and deport a higher number of undocumented immigrants who have been convicted of a crime, one which proposed additional resources for strengthened COVID-19 protocols at the border and one which suggested increased funding for border security measures, asylum processing, and addressing the immigration court backlog.

Next, the budget outline will be considered by the House of Representatives, which will return from their recess on August 23. The path ahead, however, remains uncertain after nine moderate House Democrats sent a letter to House Speaker Nancy Pelosi warning that they would not vote for a budget resolution unless the House first passes a Senate-approved infrastructure bill. In response, Pelosi sought to reach a compromise requesting the House Rules Committee to explore the possibility of advancing both the budget resolution and the bipartisan infrastructure package together.

Kabul Falls to Taliban as US Attempts Delayed Evacuation of Afghan Allies

On August 16, following the rapid fall of Afghanistan to Taliban forces and amid criticism for delayed and chaotic attempts to evacuate Afghans who had assisted the U.S. military effort, President Biden reiterated his commitment to evacuate all eligible Afghans and their families so they can continue with their Special Immigrant Visa (SIV) process safely outside of the country. He highlighted that his government had already relocated 2,000 SIV applicants to the United States and third countries through Operation Allies Refuge. As of August 19, the U.S. has secured operational control of the entire Kabul airport and is working to evacuate thousands of U.S. citizens, green card holders, and SIV-eligible individuals each day. Among other logistical hurdles, the U.S. has been unable to guarantee safe travel to the airport, which is surrounded by Taliban checkpoints. Currently getting into the airport had become a significant barrier.

Also, on August 16, a bipartisan group of senators including 43 Democrats and three Republicans sent a letter to Secretary of State Anthony Blinken and DHS Secretary Alejandro Mayorkas urging them to protect and evacuate women leaders, activists, human rights defenders, judges, parliamentarians, journalists, and members of the Female Tactical Platoon of the Afghan Special Security Forces. The bipartisan letter reiterated the importance of streamlining the paperwork process to facilitate referrals to allow for humane and efficient relocations to the United States and called for the government to enable charter flights to evacuate at-risk individuals from Kabul.

On August 15, the State Department had requested the Department of Defense (DOD) to provide temporary housing, sustainment, and support inside of the United States to up to 22,000 Afghan SIV applicants and their families. The State Department also requested DOD to provide protection, air transportation, and processing of up to 30,000 at-risk individuals from Kabul, including embassy personnel, U.S. citizens, and Afghan SIV applicants.

Advocates and lawmakers in both parties have expressed concern and frustration with the slow progress of the evacuation of Afghan allies prior to the fall of Kabul. Now, many have urged continued evacuation and highlighted that the U.S. remains ready and willing to welcome Afghan allies and refugees. On August 16, former President George W. Bush and former First Lady Laura Bush stated that the U.S. has the “responsibility and the resources to secure safe passage for them now, without bureaucratic delay.” Over fourteen governors, including nine Republicans, have said they will welcome Afghan refugees.

Border Crossings Rise Again in July, Although Numbers Inflated by High Recidivism Rates

On August 12, U.S. Customs and Border Protection (CBP) released official data on the number of migrants the agency had apprehended or encountered in the month of July. CBP reported 212,672 total apprehensions at the border, a 13% increase over June’s total of 188,829. A continued spike in arrival numbers in July is a departure from seasonal trends, which typically portend a peak in late spring and declining numbers through the hot summer months.

The data showed the highest number of total monthly encounters in 21 years, although overall encounters continue to be significantly inflated due to a high number of repeat crossers. CBP reported that the recidivism rate was 27%, more than three times higher than in 2019 and approximately double what it has been for much of the past decade. CBP noted that due to these high recidivism rates, the number of unique border crossers in July was 154,288, and that this fiscal year to date, the number of unique encounters remains in line with numbers seen through the same period in Fiscal Year (FY) 2019.

The CBP report further shows that the increase in overall encounters in July has largely been driven by an increase in arriving families and unaccompanied children. In July, CBP encountered 83,267 migrants in family units, more than any previous month this year (although still below the peak set in 2019). Unaccompanied children also rose sharply to a record high of 18,962, slightly higher than the previous record set in March. The influx of migrant children comes as questions continue to be posed about conditions in the emergency facilities being used to care for them. On August 9, attorneys representing detained migrant children filed a lengthy brief in the ongoing Flores Settlement Agreement describing “unsafe, unsanitary” conditions in two Texas facilities — Fort Bliss and Pecos — and urging the government to release minors in those facilities to family members and sponsors in the U.S.

The continued increase in border arrivals comes as concerns remain at the border regarding the spread of COVID-19. In its July media advisory, CBP stated that it is providing personal protective equipment to all migrants who are not immediately expelled. The agency further stated that all migrants are tested for COVID-19 upon release or transfer from CBP custody, and case positivity rates among migrants are at or lower than those in local border communities. Migrants who test positive upon leaving CBP custody are placed in quarantine protocols.

Approximately 45% of arriving migrants — and the vast majority of all single adults — continue to be expelled immediately under a public health order called Title 42. The administration has been flying some individuals expelled under Title 42 to southern Mexico in order to discourage repeat crossing, a practice that was criticized on August 11 by the United Nations High Commissioner on Refugees (UNHCR).

DHS Announces Significant Changes to the Asylum Process

On August 18, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) announced a plan to expedite the adjudication of asylum cases at the border by significantly expanding the role of U.S. Citizenship and Immigration Services (USCIS) asylum officers. The plan would delegate to these asylum officers the responsibility of adjudicating the applications for protection of recent border crossers who have passed initial credibility screenings. Currently, those who pass these initial screenings — called Credible Fear Interviews — are placed in a years-long immigration court backlog that has ballooned to over 1.3 million cases, and they are required to make their case in an adversarial setting before an immigration judge.

The plan would only apply to migrants placed in expedited removal, which is a fast-tracked deportation procedure that has in the past raised concerns around access to due process and the ability of individuals to adequately prepare evidence and testimony before a Credible Fear Interview. The plan is set to be published on August 20 as a proposed rule, and advocates and others will have 60 days to provide feedback.

USCIS asylum officers are already responsible for adjudicating credible fear screenings and asylum applications made affirmatively from the interior of the US. While more expeditious than the slow-moving immigration courts, the USCIS asylum office faces its own backlog of over 300,000 cases. To accommodate the expanded role of the office, the Biden administration plans to double the existing asylum officer corps by hiring an additional 1,000 officers.

The proposed rule is the latest in a series of recently announced or implemented changes to border processing of arriving migrants. On August 17, DHS announced a new pilot program for arriving asylum seekers that will be organized by nonprofits and local governments and will provide case management and other support services. The program will serve in lieu of detention, and it marks a return to community-based Alternatives to Detention (ATD) programs which were largely ended by the Trump administration.

ICE to Avoid Arrest and Deportation of Undocumented Victims of Crime Under New Policy 

On August 10, U.S. Immigration and Customs Enforcement (ICE) issued a directive that calls for a “victim-centered approach” towards victims of crime, including by encouraging personnel to refrain from arresting beneficiaries of victim-based immigration benefits and those with a pending application for such benefits. Through this policy, ICE will also assist victims of crime in seeking justice and support them in expediting the adjudication of victim-based immigration applications and petitions through coordination with U.S. Citizenship and Immigration Services (USCIS). The benefits in question include U visas and T visas and Violence Against Women Act self-petitions.

Under the new directive, ICE must also look for evidence that indicates if an undocumented immigrant is a victim of a crime such as human trafficking or domestic violence. According to the directive, the new policy is meant to “encourage victim cooperation with law enforcement, engender trust in ICE agents and officers, and bolster faith in the entire criminal justice and civil immigration systems.”

Legal

Federal Judge Orders Biden Administration to Reinstate the Remain in Mexico Program

On August 13, a federal judge ordered the Biden Administration to reinstate the Migrant Protection Protocols (MPP), also referred to as the “Remain in Mexico” program.  The policy, first introduced by the Trump Administration in 2019, requires migrants seeking asylum along the southern border to stay in Mexico while their claims are adjudicated, a process that often takes months or years. The Biden Administration ended formal use of MPP in February. However, the Trump Administration had already stopped relying on it after implementing Title 42 during the start of the COVID-19 pandemic.

The federal judge for the Northern District of Texas ruled that the Biden administration’s termination of MPP violated the Administrative Procedures Act (APA). The judge ordered that MPP be reinstated until it has been “lawfully rescinded,” and further stated that the federal government possesses adequate resources to detain all migrants subject to detention. The judge also asserted that termination of the program had contributed to the recent increase in encounters at the United States-Mexico border. The order was stayed for seven days to provide the government with the opportunity to appeal.

On August 16, the Department of Justice filed an emergency motion for a stay, which was denied the next day. The Biden Administration will now seek relief from the Fifth Circuit Court of Appeals. Without an emergency stay, the Biden administration would be compelled to fully reinstate MPP, and enforce the program “in good faith” by August 20.

Even without a stay from the Fifth Circuit, reimplementation of the order may be complicated, given the fact that MPP requires the cooperation of Mexico. Critics have also noted that it is unlikely that the formal termination of MPP contributed to the current increase in border-crossers, as the program had not been used “for months” prior to its discontinuation. A regularly updated Human Rights First report has documented over 1,500 of publicly reported murder, rape, kidnapping, and other violent assaults experienced by those forced to wait in MPP. The program faced several legal challenges during the Trump Administration and was found unlawful by the Court of Appeals for the Ninth Circuit in 2020.

Court Orders Biden Administration to Issue 9,095 Reserved 2020 Diversity Visas

On August 17, the U.S. District Court for the District of Columbia ordered the Biden Administration to issue the 9,095 diversity visas that had been reserved from Fiscal Year (FY) 2020. This ruling comes after an extended process that started in 2020 when former President Donald Trump temporarily banned noncitizens from moving to the US on new immigrant visas. The ban forced the State Department to suspend the adjudication of visas for recipients subject to the immigration ban. The suspension caused approximately 40,000 of the 55,000 available diversity visas for FY 2020 to remain unissued by the September 30, 2020 deadline. On that date, Judge Amit P. Mehta, ordered the U.S. State Department to reserve 9,095 diversity visas for future processing pending the final resolution of the case. Nearly a year later, the August 17 court order ensures that these visas will finally be issued.

In his ruling, Judge Mehta declined to give a timeline for the State Department to release the visas. Instead, the department and attorneys for the diversity visa winners must negotiate a “reasonable time frame” for the State Department to issue the visas.

The Diversity Visa Immigrant Program is designed to allow additional immigration opportunities to people from countries with relatively low rates of immigration to the U.S. Accessing a diversity visa is a multi-step process, which consists first of entering a computerized lottery which selects 55,000 individuals each year, and then a lengthy application, interview, and visa issuance stage before lottery winners can finally receive their green cards.

State & Local

Texas Governor’s Immigration Enforcement Strategy Faces Legal and Bureaucratic Obstacles

On August 11, three weeks after Texas state troopers began arresting and jailing suspected unauthorized border-crossers on charges of criminal trespassing under orders from Governor Greg Abbott (R-Texas), the first nine migrants arrested under the plan pled guilty and were transferred to ICE custody. It remains unclear whether ICE will place them in fast-tracked deportation proceedings or release them and allow them to pursue claims of humanitarian protection in immigration court. Hundreds of additional border-crossers have been arrested and continue to wait in Texas jails for their own cases to proceed, a process that could take months.

Advocates have raised concerns over the legality of the program and reiterated that immigration enforcement is the sole responsibility of the federal government. They also noted that the bureaucratic limbo confirms some of their fears about what can go wrong when Texas wades into federal immigration practices.

A separate controversial immigration order from Governor Abbott — this one designed to prevent state-licensed shelters from housing unaccompanied migrant children — has resulted in additional problems and legal challenges. As a result of the order, more than forty Texas-based shelters housing migrant children in federal care will start operating without state licenses as soon as the start of September. Operating shelters without licenses could put the Biden administration at risk of violating legal requirements designed to protect minors in U.S. custody. In response, the administration has threatened to sue Texas, calling Abbott’s order a “direct attack” on the Health and Human Services Department (HHS) shelter system. However, despite its threat to pursue legal action, the administration has not filed any lawsuit yet. An HHS spokesperson said that the agency is “currently examining all the legal options available at its disposal to ensure that our shelters continue to provide services to the unaccompanied minors in our care.”

Personnel & Nominations

Ken Salazar Confirmed as US Ambassador to Mexico

On August 11, the U.S. Senate confirmed former Senator Ken Salazar to serve as the U.S. ambassador to Mexico. Salazar is President Joe Biden’s first ambassador nominee to be confirmed.

As ambassador, Salazar will play an important role in managing diplomatic ties with Mexico. He will begin his role at a time when the Biden administration is looking to control the high volume of migrants at the US-Mexico border.

Ken Salazar represented Colorado in the Senate from 2005 to 2009. He also served as Interior Secretary on President Obama’s cabinet from 2009 to 2013. Prior to his time in the Senate, he served as Colorado’s Attorney General.

GOVERNMENT REPORTS

There were no immigration-related government reports published during the weeks of August 9 and August 16, 2021.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Summary: Immigration Provisions in the Budget Resolution

This resource offers a summary and analysis of the immigration provisions of the $3.5 trillion budget resolution that the U.S. Senate passed on August 11, as well as a description of five immigration-related amendments that were voted on during deliberation on the Senate floor.

Explainer: What’s Happening at the US-Mexico Border

This regularly updated explainer breaks down what is happening at the U.S.-Mexico border, analyzing CBP data on recent apprehensions, describing the impact and use of Title 42 expulsions as well as the treatment of arriving UACs, and providing additional context on reports of increased migration to the U.S. and releases of migrant families into the interior. The explainer also includes a Facebook live discussion covering recent developments at the border.

Fact Sheet: Overview of the Special Immigrant Visa Programs

This resource provides an overview of the Special Immigrant Visa program, which provides a pathway to status for Afghans who have assisted U.S. efforts in Afghanistan and who face threats based on their association with the U.S. military. The fact sheet describes the SIV application process and eligibility requirements.

* * *

*This Bulletin is not intended to be comprehensive. Please contact Arturo Castellanos-Canales, National Immigration Forum Policy and Advocacy Associate, with comments and suggestions of additional items to be included. Arturo can be reached at acastellanos@immigrationforum.org. Thank you.

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