Legislative Bulletin – Thursday, August 27, 2020

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. 8089

The Emergency Stopgap USCIS Stabilization Act

This bill would allow U.S. Citizenship and Immigration Services (USCIS) to use funding accrued via premium processing fees to address adjudication and naturalization services, including addressing petition backlogs. The bill would also increase revenues accrued through premium processing by expanding access to premium processing for several additional petitions and increasing premium processing fees for most petitions, with the exceptions of H-2B nonagricultural guestworkers and R religious workers.

Sponsored by Representative Zoe Lofgren (D-California) (6 cosponsors – 4 Democrats, 2 Republicans)

08/22/2020 Introduced in the House by Representative Lofgren

08/22/2020 Referred to the Committees on the Budget and on the Judiciary

08/22/2020 Passed the House via Unanimous Consent

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and U.S. House of Representatives will be in session the week of Monday, August 31, 2020. While many members of Congress have returned home, both chambers are nominally remaining in session in the event a deal is reached concerning additional COVID-19 relief.

UPCOMING HEARINGS AND MARKUPS

There are no upcoming 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

USCIS Cancels Furloughs, But Services Slowed as Congress Works on Financial Fix

On August 25, U.S. Citizenship and Immigration Services (USCIS) cancelled planned furloughs of 13,400 workers, or 67% of its workforce, that were set to go into effect August 30. In a statement, USCIS Deputy Director for Policy Joseph Edlow noted that the furlough cancellation was due to a financial situation that has “temporarily improved due to a modest increase in revenues.” Edlow further stated that unless Congress acts to pass a more durable financial solution for the agency, USCIS would be “forced to continue taking cost-reducing actions” that could significantly delay processing times for immigration benefits and naturalizations.

The cancellation came just days after the House of Representatives, on August 22, passed via unanimous consent a bipartisan bill to provide additional funding to USCIS. The bill would open up earmarked funding from fees for optional, expedited “premium processing” immigration petitions to be used to tackle processing backlogs and address financial shortfalls. The bill raises the fee for premium processing and makes the service available for a number of additional petitions. It remains to be seen if the Senate will take up the bill, or whether the chamber will introduce its own USCIS funding solution.

In May, USCIS had requested $1.2 billion in emergency supplemental funding from Congress, citing a drastic decline in green card and other visa applications since the COVID-19 pandemic began and a resulting budgetary shortfall. Critics have argued that the pandemic only exacerbated problems that already existed due to mismanagement of the agency. In an August 18 letter, Senator Patrick Leahy (D-Vermont), Vice Chairman of the Senate Appropriations Committee, questioned the extent of the financial shortfall and the necessity of the planned furloughs. “USCIS could pay all of its staff through the end of the fiscal year, avoid furloughs entirely, and still end the fiscal year with a sizeable carryover balance,” he wrote.

USCIS handles applications for citizenship, permanent residency and nearly all immigrant and nonimmigrant visas, along with petitions for refugee and asylum status.

Report: Trump Officials Held Vote to Separate Families in 2018

According to an August 20 NBC News report, 11 senior advisors to the president held a “show-of-hands” vote in the Situation Room to move forward with separating migrant children from their parents at the border in the summer of 2018. According to the report, the Situation Room meeting was led by White House senior advisor Stephen Miller, and included cabinet-level officials and other senior advisors. The vote was reportedly held in response to objections by then-DHS Secretary Kirstjen Nielsen, who argued that DHS lacked the resources to implement the policy, and had previously cautioned that “children could get lost in an already clogged system.” No one present in the meeting reportedly argued that separating families would be immoral or inhumane, and the group voted decisively in favor of moving forward with the policy.

A White House spokesperson denied that the vote occurred. At the time, Secretary Nielsen said the intention of the policy was never to separate families. The policy resulted in the separation of thousands of migrant children from their parents, and many parents were deported before they were able to reconnect with their children.

Later in the week, on August 26, a New York Times report revealed that in October 2018, cabinet officials held another meeting in which they considered the installation of a “heat ray” device on the border that would make migrants’ skin feel like it was burning when they got within range. The idea reportedly “shocked attendees” and was rejected by Secretary Nielsen and others at the meeting.

GAO Report: Top Officials at DHS Have Been Serving Unlawfully in Their Positions

According to an August 14 Government Accountability Office (GAO) report, the two top officials at the Department of Homeland Security (DHS), Acting Secretary of DHS Chad Wolf and Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli, were both unlawfully appointed to their positions. The report found that in April 2019, former Acting Secretary of DHS Kevin McAleenan was improperly appointed as a successor to then Secretary of DHS Kirstjen Nielsen. Nielsen had attempted to amend the designated order of succession before she resigned, but the change she made explicitly did not apply to resignations. The report further concludes that McAleenan’s subsequent amendments to the order of succession to allow Wolf and Cuccinelli to assume their current roles is therefore also improper and in violation of the Federal Vacancies Reform Act of 1998.

The GAO has requested the DHS Inspector General to review the findings and determine if the impropriety of Wolf’s and Cuccinelli’s appointments may impact the validity of the myriad immigration changes instituted by DHS under their leadership.

In a written response, DHS said the government watchdog’s report was “baseless” and “laughable.” Senate Minority Leader Chuck Schumer (D-New York) said that the GAO report “invalidates actions Mr. Cuccinelli and Mr. Wolf have taken and both should immediately step down from their illegal roles.”

On August 25, President Trump announced he would be nominating Chad Wolf to be DHS Secretary, a move that would require Senate confirmation.

Evangelical Leaders Call on Ivanka Trump to Help Protect Migrant Children

In an August 24 letter to President Trump’s daughter and advisor Ivanka Trump, a group of prominent evangelical leaders called for the protection of migrant children who may be the victims of human trafficking. The letter specifically called on the Trump administration to adhere to the Trafficking Victims Protection Reauthorization Act (TVPRA), which, among other provisions, requires that unaccompanied migrant children arriving at the border be screened for trafficking and fear of persecution and immediately moved to Office of Refugee Resettlement (ORR) facilities.

Since March, the administration has been using a CDC public health rule to summarily deport unaccompanied children arriving at the border without first screening them for human trafficking or transporting them to ORR facilities, where they can be cared for by trained personnel. Instead, ICE has reportedly used a private contractor to detain some children in hotels before secretively expelling them, often without informing family members or legal representatives about the children’s whereabouts. Despite claims that these expulsions are necessary to stem the spread of COVID-19, the administration has continued to deport children even after they test negative for the virus.

In the letter, the evangelical leaders stated that, “we must not allow COVID-19 to serve as a pretext for abandoning our national commitment to standing for vulnerable children against the scourge of human trafficking.”

Ivanka Trump has been outspoken about human trafficking, calling it “arguably the gravest of human rights violations” and encouraging additional federal funding to provide assistance to victims. The letter to Ivanka Trump concludes, “we implore you to use your significant influence within the administration to ensure that the TVPRA’s provisions related to unaccompanied children are fully respected once again.”

In an August 27 report conducted under the Flores Settlement Agreement, which controls how the government must treat detained immigrant children, an independent monitor and pediatrician found that 577 unaccompanied children were detained in hotels between March 24 and July 31, and that more than 25 hotels are currently being used to detain unaccompanied children in this manner. The report concluded that the use of hotel detention is “not fully responsive to the safe and sanitary requirements of young children” and recommended that ICE end the policy.

Muslim Detainees at ICE Detention Facility Reportedly Offered Choice of Pork or Expired Halal Meals

According to immigration advocates and legal representatives, Muslim detainees at the Krome immigration detention facility in Miami, Florida have been repeatedly served pork or pork-based products, in violation of their religious beliefs. For multiple meals each week, Muslim detainees have had to choose between eating rotten and expired halal meals, pork meals, or going without food.

Detainees have complained about expired halal meals for years, but the situation has worsened during the ongoing COVID-19 pandemic. The detention facility had previously allowed detainees to choose their own meals in the cafeteria, allowing them to avoid pork even when the designated halal meals had expired. However, in response to COVID-19, the facility has been serving pre-portioned and pre-plated meals, forcing detainees to choose between expired food or pork for multiple meals each week.

On August 19, human rights groups sent a letter to DHS and ICE demanding that the agencies stop the practice of feeding pork to Muslim detainees. An ICE official said the agency is investigating allegations raised in the letter.

Canada Turning Away American Students Over COVID-19

American students enrolled in Canadian schools have faced significant difficulties crossing the border and accessing campuses as the school year begins, according to an August 22 report. Canada has closed the border to nonessential travelers in an effort to prevent the spread of COVID-19, and there has been little guidance concerning whether traveling as an international student constitutes essential or nonessential travel. A spokesperson for the Canada Border Services Agency (CBSA) said that “the onus is on the traveler to show that their presence in Canada is required,” and noted that if a student’s course load is fully virtual, they are unlikely to be admitted into Canada. Further confusion has ensued relating to how American students should to apply for Canadian study permits with new border rules in place. Official guidance suggests Americans should apply online months in advance, but some students noted they have been allowed through after applying directly at a port of entry.

Students who do manage to cross into Canada must quarantine for 14 days to ensure they are not a risk to spread COVID-19.

Legal

California Announces Intent to Challenge Trump Administration’s Latest DACA Restrictions

On August 25, California Attorney General Xavier Becerra announced that the state and others will be challenging the Trump administration’s July 28 memorandum restricting access to Deferred Action for Childhood Arrivals (DACA). The memo limits DACA renewals to one year instead of two and prohibits new applicants from accessing DACA protections.

The memo was issued at the end of July by acting DHS Secretary Chad Wolf, as the administration reevaluates DACA and considers whether to terminate it entirely. The new policy followed the Supreme Court’s ruling in June that blocked the Trump administration’s attempted 2017 rescission of DACA. While the Court held that the administration did not provide adequate justification to end the policy in 2017, it did not preclude a further attempt to end the protections for Dreamers if the administration uses proper procedures and is able to provide a well-reasoned explanation for its actions. The DHS memo also followed a July ruling by a Maryland federal judge that ordered the administration to begin accepting new DACA applications in accordance with the Supreme Court ruling.

Lawsuit Challenges USCIS Fee Increases

On August 21, a group of immigration advocacy groups led by the American Immigration Lawyers Association (AILA) filed a lawsuit against DHS’s new fee rule, which dramatically increases fees for a number of immigration benefits. The fee changes, which are set to go into place October 2, include an 81% increase in citizenship application fees, and a new $50 fee for applying for asylum, which was previously free of charge. Overall, fees for immigration benefits will increase an average of 21% under the new fee rule.

AILA’s challenge focuses on the failure of USCIS to justify the need for the sweeping fee increases, criticizing the rule for “failing to explain how USCIS calculates its costs and burned through the ample cash reserves it had on hand just a few years ago.” The lawsuit also makes reference to ongoing questions concerning the administration’s improper appointment of senior DHS officials. The lawsuit argues the fee rule is unlawful because it was “proposed under Kevin McAleenan and issued under Chad Wolf, both of whom assumed the title of Acting Secretary of the Department of Homeland Security without constitutional or statutory authority.”

Federal Court Strikes Down Trump Administration Policy Blocking Citizenship for Service Members

On August 25, a federal judge in Washington, D.C. struck down the Trump administration’s 2017 policy which created barriers preventing non-citizen military service members from accessing an expedited naturalization process. The 2017 policy required non-citizen soldiers to serve a minimum of 180 days in active duty, or at least one year on reserve, before applying for the expedited citizenship process made available to service members. The judge ruled this policy contravened congressional statute, which specified that access to this expedited process may only be based on the enlistee’s past service record, without additional minimum service time requirements.

In a statement, a representative for the American Civil Liberties Union (ACLU), which brought the successful challenge, said that, “we are grateful that our clients and thousands of others like them can finally benefit from the expedited path to citizenship they have rightfully earned through their honorable military service.”

The 2017 policy resulted in a 72% decline in the number of service members who applied for citizenship in the year following its implementation.

GOVERNMENT REPORTS

Government Accountability Office (GAO): Immigration Detention: ICE Should Enhance Its Use of Facility Oversight Data and Management of Detainee Complaints, August 19, 2020

This report focuses on Immigration and Customs Enforcement (ICE) management and oversight of immigration detention facilities and its efforts to provide “safe, secure, and humane” conditions to those detained. The report focuses specifically on oversight mechanisms in place to ensure compliance with detention standards and the process by which ICE receives and addresses detainee complaints. GAO found that ICE does not regularly analyze complaint data and does provide “reasonable assurance” that complaints will be recorded and addressed. The report makes a series of recommendations for ICE to resolve these issues.

DHS Office of Inspector General (OIG): Children Waited for Extended Periods in Vehicles to Be Reunified with Their Parents at ICE’s Port Isabel Detention Center in July 2018, August 19, 2020

This OIG report responds to multiple congressional requests to investigate reports that migrant children at the Port Isabel Detention Center in South Texas were forced to wait for prolonged periods in vehicles to be reunited with their parents in July 2018. The report confirms that on July 15, 2018, migrant children arriving at the detention center were forced to wait as long as 39 hours in the vehicles to be reunified with their parents, with most children forced to wait overnight. The report notes the children were separated from their parents as part of the administration’s “zero tolerance” policy.

Government Accountability Office (GAO): Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, August 14, 2020

This GAO report examined whether acting secretary of Homeland Security Chad Wolf and Senior Official Performing the Duties of Deputy Secretary of Homeland Security Ken Cuccinelli are properly serving in their current posts. GAO concluded that the appointments of both Wolf and Cuccinelli were improper and violated the Federal Vacancies Reform Act of 1998. The report determined that former Acting Secretary Kevin McAleenan had been improperly appointed to replace Secretary Kirstjen Nielsen in April 2019, bypassing the designated order of succession. The report further concludes that McAleenan’s subsequent amendments to the order of succession to allow Wolf and Cuccinelli to assume their current roles was therefore also improper and illegal.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Infographics on Coming USCIS Fee Changes

This resource is a landing page with resources on coming USCIS fee changes, which are set to go into effect on October 2. The resources include an infographic describing naturalization fee increases in English and Spanish and an infographic highlighting fee changes affecting immigrant workers and their families.

Trafficking Victims Protection Reauthorization Act Safeguards Children

This blog post explains the Trafficking Victims Protection Reauthorization Act (TVPRA) and how it protects unaccompanied alien children (UACs). It discusses proposals to change the TVPRA and how such modifications would hurt UACs.

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

This fact sheet 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.

* * *

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

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