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Legislative Bulletin – Thursday, August 2, 2018

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. 2353

Strengthening Career and Technical Education for the 21st Century Act

This bill reauthorizes the Carl D. Perkins Career and Technical Education Act (Perkins Act), which is the primary federal funding source for high school, college and university career and technical education (CTE) programs that are critical for preparing adults and youth, including immigrants, for jobs in local and regional economies.

Sponsored by Rep. Glenn Thompson (R-Pennsylvania) (40 cosponsors – 29 Republicans, 11 Democrats)

05/04/2017 Introduced in the House by Representative Thompson

06/07/2017 Reported by the Committee on Education and the Workforce

06/22/2017 Passed the House of Representatives by a voice vote

07/23/2018 Discharged by the Senate Committee on Health, Education, Labor and Pensions by unanimous consent

07/23/2018 Passed the Senate with an amendment by a voice vote

07/25/2018 Agreed by the House of Representative to the Senate amendment by a voice vote

07/31/2018 Signed into law by President Trump

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in recess the week of Monday, August 6, 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

Senate Judiciary Committee Questions Administration Officials on Family Separations

Trump administration officials faced bipartisan criticism at a Senate Judiciary Committee  oversight hearing on July 31. The hearing probed the Trump administration’s efforts to reunite families it separated at the Southern border, as well as reports of poor conditions at migrant detention centers.

Five high-ranking government officials from different agencies involved in implementing administration policies that led to family separations testified the hearing.

During the hearing, Commander Jonathan White of the U.S. Public Health Service Commissioned Corps and Federal Health Coordinating Official for the 2018 family reunification effort testified that over the previous year he and others in the Office of Refugee Resettlement (ORR) warned the administration of the repercussions of family separation.  White told the committee that “separation of children from their parents entails significant risk of harm to children” and “there’s no question that separation…entails significant potential for traumatic psychological injury to the child.”

Senators on the committee pressed officials to reunify children immediately and continued to call out those responsible for the policy, with Senator Richard Durbin (D-Illinois) urging Homeland Security Secretary Kristjen Nielsen to resign. Judiciary Committee Chairman Charles Grassley (R-Iowa), said that the administration “mishandled” family separations, while expressing support for increased immigration enforcement along the U.S.-Mexico border. At another point in the hearing, Senator Richard Blumenthal (D-Connecticut) asked the witnesses whether the Trump administration’s “zero tolerance” policy was a success, but none of the officials raised their hand.

Another witness in the hearing, Matthew Albence, U.S. Immigration and Customs Enforcement’s (ICE) Executive Associate Director for Enforcement and Removal Operations (ERO), compared immigration detention facilities holding migrant children to “a summer camp,” despite reports of poor conditions in detention facilities holding children. On July 30, Sen. Grassley and Sen. Dianne Feinstein (D-California), the ranking Democrat on the committee, requested an investigation into reports of alleged abuse at federal immigration detention facilities.

Meanwhile, a bipartisan group in the Senate Judiciary Committee, led by Senators Ted Cruz (R-Texas) and Feinstein, continue to talk about a possible agreement on legislation to prevent family separations, although conversations appeared to have reached an impasse over the Flores Settlement Agreement, specifically its limits on family detention. On August 2, CNN reported that the administration is considering issuing regulations that would nullify provisions of the Flores Agreement that limit the time children can be held in detention. The new regulations would likely be subject to a legal challenge.

President Trump Repeatedly Threatens Government Shutdown

President Trump tweeted on July 29 that he is willing to shut down the federal government unless he receives “the votes for Border Security, which includes the Wall!” and Congress gets rid of “Lottery, Catch & Release…and finally go to system of Immigration based on MERIT!” On July 30, President Trump reiterated his stance during a press conference with Italian Prime Minister Giuseppe Conte, stating that he “would have no problem doing a shutdown.”

Later that day, President Trump reportedly agreed to put off a potential shutdown or any fight over border wall funding until after the midterm elections. But, on July 31, he tweeted again “I don’t care what the political ramifications are…[a] Government Shutdown is a very small price to pay.”

Republican lawmakers demurred over the president’s strategy. Representative Steve Stivers (R-Ohio), chairman of the Republican Congressional Campaign Committee, said “I don’t think we’re going to shut down the government.” Senate Majority Leader Mitch McConnell (R-Kentucky) told reporters on July 30 that the Senate is working on passing spending bills and that “we ought to fund the wall and we’re going to try to achieve that in the course of a regular order process.” Senate Appropriations Chairman Richard Shelby (R-Alabama) and Senator Shelley Moore Capito (R-West Virginia), who chairs the Homeland Security subcommittee, both argued against a government shutdown at a White House meeting with President Trump this week. On July 31, Shelby told reporters “[I]t’s mind boggling to me that anybody would say ‘Well, we’re going to shut down the government if I don’t get my way.’” The Senate moved on July 31 to pass several non-controversial government funding bills with bipartisan support. It is unclear when the Senate or the House will vote on a Homeland Security spending bill, which would include funding for the border wall.

Congress must fund the federal government by October 1, the start of fiscal year (FY) 2019.

White House Considering Reducing the Number of Refugees U.S. Accepts to 25,000

The White House is reportedly considering a significant reduction in the number of refugees who can be resettled in the U.S. for the second year in a row, potentially lowering the refugee ceiling to 25,000 refugees in fiscal year (FY) 2019. Such a cut would represent a reduction of more than 40 percent from this year’s ceiling, which was set at 45,000 refugees, and more than 75 percent from the FY 2017 ceiling of 110,000. A reduction of the refugee ceiling to 25,000 would represent the lowest number since the creation of the U.S. refugee resettlement program in 1980. President Trump has until September to officially determine the FY 2019 refugee ceiling.

The annual refugee limit is set unilaterally by the president and represents a maximum number of refugees to be resettled in a particular fiscal year. In FY 2018, only 16,230 refugees have been resettled as of the end of June, putting the program on pace to admit only around 21,000 refugees this year – well below the FY 2018 refugee cap. At the halfway point of FY 2018, the State Department had resettled 87 percent of the European refugee cap, but only 21 percent for Africa, 20 percent for Latin America and Caribbean and 15 percent for the Near East and South Asia. According to the New York Times, proposals to reduce the refugee ceiling have received little resistance in internal Trump administration discussions.

USCIS Delays Implementation of Notices to Appear (NTA) Policy

On July 30, U.S. Citizenship and Immigration Services (USCIS) announced that implementation of its updated policy on issuing Notices to Appear (NTA) will be postponed “until the operational guidance is issued.” Under the new policy released on June 28, immigrants will receive an NTA and be placed into removal proceedings if they apply for any modification of status for a visa, green card, or naturalization and are denied. They may also receive an NTA if they are charged with a crime or if they have any association with an activity that the Department of Homeland Security (DHS) considers to be criminal, even if they have not been arrested or charged for such activity. Previously, NTAs were issued sparingly, usually only when the applicant had a criminal conviction.

USCIS directed its components to create or update operational guidance on NTAs and Referrals to ICE (RTIs) within 30 days after the policy guidance was released on June 28. As the deadline was not met, the implementation is being postponed until the operational guidance is provided.

Justice Department Cannot Produce Records Supporting President Trump’s Terrorism Claims

On July 24, in response to a request from the blog Lawfare, the U.S. Department of Justice (DOJ) acknowledged that it could not find evidence to support President Trump’s claim in a February 2017 speech to Congress that “the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside our country.” In the speech, President Trump said the data was provided by DOJ. He tweeted a similar claim in January 2018 when he stated that 3 in 4 people convicted of terrorism-related charges are “foreign-born.”

In response to the suit and subsequent negotiations between DOJ and Lawfare, the department stated that, “[N]o responsive records were located” containing data of all individuals convicted of all terrorism-related offenses (domestic and international) between 2001 and the date of the initial search.”  Lawfare and others had previously found that many of President Trump’s claims were unfounded and based on data with critical omissions.

Military Base Ready to Construct Facilities to Hold Migrant Children

The Department of Defense (DoD) has completed legal and environmental requirements needed to construct housing to hold migrant children at the Goodfellow Air Force Base near San Angelo, Texas. DoD is now waiting to obtain a formal request from the Department of Health and Human Services (HHS), which is responsible for the care and placement of unaccompanied children (UACs), outlining the need and intent for these facilities. A letter from HHS is required before the actual construction of temporary housing or tents in the military facility can begin. DoD stated on June 21 that it may house up to 20,000 unaccompanied migrant children on military bases in the coming months.

In addition, DoD is still working on developing the legal agreement for housing immigrant families detained after crossing the Southern border at Fort Bliss in El Paso, Texas. The Department of Homeland Security (DHS) formally requested space for up to 12,000 beds for families last month, including 2,000 beds that would be in place in the next 45 days. DoD said developing the legal agreement is taking additional time because it is more complicated, since a family facility must comply with U.S. Immigration and Customs Enforcement’s (ICE) family residential standards and the 1997 Flores Settlement Agreement.

A group of retired military leaders warned in a letter to Defense Secretary James Mattis that housing detained immigrants on military bases could “divert critical defense resources from core military functions, reduce service member readiness, and detract from their ability to protect our homeland and defend our interests abroad.”

Legal

Courts Order Independent Monitor to Observe Certain Border Facilities; Limit the Provision of Medication to Children; Continue to Oversee Reunifications

On July 27, U.S. District Judge Dolly Gee announced that she will appoint an independent monitor to observe the conditions of migrant children detained in U.S. Customs and Border Protection (CBP) facilities along the Rio Grande Valley in Texas. The appointed individual will report back to Gee about conditions. Gee’s decision was in response to allegations concerning the mistreatment of children and inadequate conditions in Border Patrol facilities, where children have reportedly been detained for anywhere from three to six days. The conditions might violate the 1997 Flores agreement – a legal settlement setting requirements for the care of migrant minors, which Gee oversees.

Gee provided DOJ and plaintiffs from immigrant groups until August 10 to agree on a candidate they find suited for the job. If the parties fail to reach an agreement, Gee will select the monitor. The Department of Homeland Security (DHS) claims they “maintain the highest standards of care for individuals” in their custody, despite allegations of mistreatment and inadequate conditions.

On July 30, Gee ordered the Trump administration to obtain consent or a court order before administering any psychotropic medications to migrant children after finding that the federal government improperly had administered psychotropic medication to migrant children at the Shiloh Residential Treatment Center without the consent of their parents, in violation of state child welfare laws. Gee also ordered the government to move children out of the Shiloh facility, which has a history of troubling practices, except for those deemed by a licensed professional to pose a “risk of harm” to themselves or others.

Also on July 30, Judge Dana Sabraw, the federal judge overseeing the reunification of separated families, urged the ACLU and the Trump administration to work together to reunite the 650 remaining children who have not yet been reunited with their families. Sabraw will consider individual cases “on a rolling basis” to determine whether a parent is eligible to be reunited with their child, and will be holding regular status conferences with the parties. The parties have continued to disagree over the eligibility of some families to be reunited, as well as allegations that federal authorities  pressured some parents to agree to be deported with their children or face re-separation.

Later in the week, on August 2, reports that a migrant toddler died shortly after being released from an ICE detention center were confirmed by the American Immigration Lawyers Association (AILA). ICE said it is investigating the possibility a child died after leaving an agency facility.

The Trump administration has so far reunited more than 1,800 children and is now working on cases that are more complex. This includes cases of more than 450 parents who the Trump administration deported without their sons and/or daughters.

Appeals Court Rules Trump Administration’s “Sanctuary City” Order is Unconstitutional

On August 1, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s decision that President Trump exceeded his authority when the Trump administration threatened to withhold federal funds from so-called sanctuary cities that limit their participation in federal immigration enforcement. In a 2 to 1 decision, the appeals court said that President Trump’s executive order on interior enforcement, which would threaten federal grant money going to so-called sanctuary jurisdictions, is unconstitutional. Chief Judge Sidney Thomas, writing for the majority, noted that “[A]bsent congressional authorization, the administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.” But, the appeals court also ruled that the lower court’s decision went too far when it issued a nationwide preliminary injunction preventing federal officials from cutting off grants to local jurisdictions that do not help carry out federal immigration enforcement beyond that already required under federal law.

The decision prevents the Trump administration from defunding the case’s two plaintiffs, San Francisco and Santa Clara Counties, California, and sends the case back to the district court of additional fact-finding on the order’s potential nationwide impact.

A federal judge in Chicago issued a similar injunction in September 2017 against Attorney General Jeff Sessions’ order that required police to cooperate with federal immigration enforcement officials or risk losing federal law enforcement grants. The U.S. Court of Appeals for the Seventh Circuit later restricted that injunction to Chicago and will decide this September whether or not the injunction should be nationwide.

Former Judges Speak Out Against Removal of Immigration Judge in Deportation Case

A group of fifteen retired immigration judges sent an open letter to DOJ on July 30 claiming the department’s Executive Office for Immigration Review (EOIR) improperly removed an immigration judge from a Philadelphia deportation case in order to replace him with a judge who ordered the defendant’s deportation.

The EOIR removed Judge Steven Morley earlier this year from a case involving Reynaldo Castro-Tum. Morley had given Castro-Tum an “administrative closure” instead of deporting him when he did not show up to court. Administrative closures are suspensions of cases when it is unclear whether the defendant received notice regarding the hearing. Subsequently, Attorney General Jeff Sessions referred the case back to himself and penned an opinion limiting the use of administrative closure, stating that the procedure was not legally sound. Sessions referred the case back to Judge Morley, but warned that if Castro-Tum did not appear Judge Morley was to deport him. When Castro-Tum did not show up, Morley scheduled a subsequent hearing in July to evaluate Castro-Tum’s counsels’ claim that his client was not given adequate notice. Prior to the hearing, EOIR replaced Morley with Deepali Nadkarni, an assistant chief immigration judge, who presided over the hearing and quickly deported Castro-Tum.

The former judges who penned the letter expressed concerns about judicial independence and due process. They also stated that the EOIR made the decision to replace Morley in order to get the outcome the Attorney General and others desired. “As a democracy we expect our judges to reach results based on what is just, even where such results are not aligned with the desired outcome of politicians,” the letter reads.

Lawsuit Challenges State Department’s Visa Allocation Policy

A lawsuit filed in the U.S. District Court for the District of Columbia on July 25 could challenge the way the federal government counts spouses and children when calculating the annual limit for the EB-5 program, and potentially other types of business and family visas. If successful, the lawsuit, Feng Wang, et al. v. Michael R. Pompeo, could significantly reduce wait times for many immigrants aiming to receive a visa to come to the U.S. Currently, the State Department allocates visas under the EB-5 program by counting an investor and each family member (spouse and children) when issuing visas against the cap. As a result, less than 3,500 visas out of the program’s 10,000 visa quota are actually allocated to investors. The lawsuit, if successful, could require the State Department to stop counting spouses and children against EB-5 and other visa caps.

State and Local

Philadelphia Ends Information-Sharing Contract with ICE

Philadelphia announced on July 24 that it will not renew an information-sharing contract with U.S. Immigration and Customs Enforcement (ICE) when it expires on August 31, ending a decades-long agreement with the agency. The contract permits ICE to view information contained in Philadelphia’s Preliminary Arraignment Reporting System (PARS), a law enforcement database which alerts authorities when new arrests are made. PARS includes the arrestee’s full name, country of origin and social security number, but does not indicate immigration status.

Philadelphia Mayor Jim Kenney and other critics of the information-sharing agreement claimed that ICE abused the database to investigate potential immigration violations by racially profiling city residents. Kenney noted that, “just because the person’s name is Lopez…you’re going to go to their house and take people out of their home? I mean, it just makes no sense.” An ICE Spokesman stated that blocking agents from using the database is “needlessly compromising public safety,” despite the fact that other law enforcement officials in the city will still have access to the database.

Previously, in June, a federal judge ruled in favor of Philadelphia in litigation over the city’s policies limiting its involvement with federal immigration authorities.

Skills and Workforce Development

President Trump Signs Bill Reauthorizing Perkins Act

On July 31, President Trump signed the Strengthening Career and Technical Education for the 21st Century Act. The bill reauthorizes the Carl D. Perkins Career and Technical Education Act (Perkins Act), which is the primary federal funding source for high school, college and university career and technical education (CTE) programs that are critical for preparing adults and youth, including immigrants, for jobs in local and regional economies. The bill provides $1.2 billion a year to states for CTE programs and gives the states a better ability to set their own CTE standards, limiting the Department of Education’s authority over the program.

GOVERNMENT REPORTS

There were no immigration-related government reports published on the week of Monday, July 30, 2018.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

DACA-Related Litigation Status Update

This article provides an update on the current state of DACA-related litigation and potential outcomes and timing. Court decisions this summer will likely impact DACA and potentially set up an urgent situation leading to a Supreme Court ruling in the fall.

Fact Sheet: Family Separation at the U.S.-Mexico Border

This factsheet provides an updated overview of the issue of family separation at the Southern border, including information on whether family separation is required by law (it is not) and on the Department of Justice’s (DOJ) “zero-tolerance policy” to prosecute all individuals crossing the U.S. border between ports of entry without authorization.

Infographic: Alternatives to Detention

This infographic shows that Alternatives to Detention (ATDs) represent a fraction of the cost of immigration detention, while continuing to ensure that more than 95 percent of individuals on ATDs attend required immigration court hearings and/or appointments.

* * *

*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.

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