Legislative Bulletin – Thursday, August 29, 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

H.R. 4202

Securing Comprehensive Review in Entry Enforcement Now (SCREEN) Act of 2019

The bill would allow U.S. Customs and Border Protection (CBP) officers to conduct credible fear interviews of asylum seekers.

Sponsored by Representative Jodey Arrington (R-Texas) (0 cosponsors)

08/23/2019 Introduced in the House by Representative Arrington

08/23/2019 Referred to the House Committee on the Judiciary

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 Publishes Final Rule to Hold Migrant Families in Indefinite Detention

The Trump administration published a final rule on August 23 that would permit indefinite detention of families, eliminating protections the federal government agreed to in the 1997 Flores Settlement Agreement. The rule, which has a 60-day comment period, would permit children to be held with their parents during the pendency of immigration proceedings, which can take several months, if not longer. Under the Flores Settlement Agreement, children cannot be kept in immigration detention for longer than 20 days. The rule would also end existing Flores requirements that facilities holding immigrant children, including family detention facilities, be state-licensed, creating a new alternative federal licensing scheme. The Trump administration is proposing the rule under a 2001 stipulation to the Flores Settlement Agreement, which terminates the agreement following the promulgation of final regulations “implementing” the agreement.

Advocates criticized the final rule for undermining important child protections and departing from the requirements of Flores. Health experts also warned that families, especially children, would face more health risks if they are maintained in detention facilities for longer periods of time. Prior to the Flores Settlement Agreement, migrant children were subject to indefinite detention and received no educational instruction, medical examinations, visitation and at times were required to sleep in quarters with adult strangers.

On August 26, a coalition of 19 states and the District of Columbia sued the Trump administration over the final rule to end Flores protections. The states, led by California and Massachusetts, argue that the federal government is already failing to provide adequate care for detained children and that detaining children indefinitely will have negative long-term impacts. The states’ lawsuit comes after the Ninth U.S. Circuit Court of Appeals ruled on August 15 that the federal government must provide migrant children with basic hygiene supplies, such as toothbrushes and sleeping mats. The Justice Department argued earlier in the case that the existing legal standard for detained children, “safe and sanitary” conditions, did not include provisions like soap and toothbrushes.

USCIS Restricts Use of Deferred Action

U.S. Citizenship and Immigration Services (USCIS) confirmed on August 23 that, effective August 7, it has stopped accepting and adjudicating applications for deferred action for non-military applicants. Deferred action provides protection from deportation in two-year increments and the ability to work in the U.S. legally, but no path to legal permanent status. The new restrictions on deferred action affect potentially thousands of immigrants across the country, including children who had been granted medical deferred action to receive treatment for dire health conditions at American hospitals. USCIS has reportedly told some families protected under medical deferred action, many of them with children battling HIV, muscular dystrophy, epilepsy, leukemia, or other diseases, to inform them they must leave the U.S. in 33 days or face deportation proceedings. Advocates noted that the restrictions on deferred action were implemented as a blanket policy, without consideration of the significant health effects it will have on children and adults dependent on medical deferred action. The sudden policy change, which was implemented without a public announcement from USCIS, left families in tenuous situations, with one parent noting her child, facing cystic fibrosis, would die if they are sent back to their home country of Honduras.

USCIS Changes Citizenship Rules for Certain Children Born Abroad

USCIS announced on August 28 that it updated the agency’s policy manual to tighten restrictions on citizenship for certain children born abroad to U.S. military service members and federal government employees and others, if the parents do not meet certain residency requirements. Under the policy change, USCIS will no longer consider members of the U.S. military and other government employees stationed abroad to be residing in the U.S. for purposes of their children obtaining citizenship. As a result, children born abroad to U.S. service members and government employees in certain circumstances, including some circumstances in which the parents lived in the U.S. for less than five years, are no longer automatically considered U.S. citizens. The policy change may also affect adopted children of U.S. citizen parents serving overseas. USCIS’s new policy requires that the parents now apply for citizenship on behalf of their children before they turn 18 years old, under a different, more onerous process.

The policy change does not affect children born outside the U.S. who were U.S. citizens at birth through derivative citizenship, which is gained if the parents meet certain residency requirements. Advocates criticized the USCIS policy change, arguing that the agency failed to request input or adequately explain the policy, which led to substantial confusion. The new policy takes effect on October 29.

DHS to Divert More than $270 Million to ICE Enforcement; Pentagon May Divert Billions to Build Border Barriers 

The Trump administration plans to reprogram $271 million, including $155 million in federal disaster aid, to increase funding for Immigration and Customs Enforcement (ICE). DHS notified congressional lawmakers earlier in August that it intends to divert $155 million in Federal Emergency Management Agency (FEMA) funds designated to respond to hurricanes and natural disasters to support facilities for immigration court proceedings under the Trump administration’s Migrant Protection Protocols (MPP), known as the “Remain in Mexico” policy. DHS also intends to divert a total of $116 million from the Coast Guard, U.S. Customs and Border Protection (CBP) and the Transportation Security Administration (TSA) to expand ICE’s immigration detention capacity. DHS is reportedly working to fund the total number of detention beds at an average daily population of 49,661, which is 6,886 more than the number of beds appropriated by Congress. In the past, DHS has sought congressional approval from the relevant congressional committee leaders to shift funds. In the absence of such approval, the authority to do so has generally been used only in extraordinary circumstances.

On August 27, DHS stated that “without additional funding…ICE will not be able to support the influx of migrants” arriving at the Southern border. Yet, 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. Speaker Nancy Pelosi on August 27 called the administration’s request “stunningly reckless” and a “brazen assault on the Congress’s most fundamental Constitutional power, the power of the purse.” Speaker Pelosi said the request would “pick the pockets of disaster relief funding in order to fund an appalling, inhumane family incarceration plan.” Senate Minority Leader Chuck Schumer (D-New York) criticized the administration’s decision to “divert money away from FEMA at the start of hurricane season,” noting that the request comes as Tropical Storm Dorian is strengthening and approaching Puerto Rico. Sen. Jon Tester (D-Montana) also noted that diverting funds from CBP and TSA will hamper “passenger and cargo inspections at the border during peak travel times.” The request comes two months after Congress approved a $4.6 billion emergency spending package in part to provide additional funding for DHS.

The Department of Defense (DOD) is also expected to approve a White House request in the coming weeks to transfer $3.6 billion in military funds to build barriers along the Southern border. The funds would be diverted from DOD projects in 26 states. On August 27, the Washington Post reported that President Trump has directed aides to fast-track billions of dollars of construction contracts and to seize private land to complete 500 miles of fencing by November 2020. President Trump reportedly told officials that he will pardon them if they have to break the law to construct the barriers quickly.

President Trump Says Administration is Looking to End Birthright Citizenship

President Trump said on August 21 that his administration is “very, very seriously” looking at ending birthright citizenship to babies born to non-U.S. citizens on American soil. President Trump said birthright citizenship is “frankly ridiculous” and suggested he would end it through an executive order because it is “a magnet of illegal immigration.” The overwhelming consensus of legal experts indicates that a president cannot end birthright citizenship through an executive order because it would be in violation of the Fourteenth Amendment, which provides citizenship to “All persons born or naturalized in the United States and subject to the jurisdiction thereof.” Legal experts said an executive order ending birthright citizenship would almost certainly be challenged in court with virtually no chance of prevailing.

Trump Administration Considers Allowing State and Localities to Veto Refugee Resettlement

The Trump administration is reportedly considering a new executive order that would permit state and local jurisdictions to veto refugees who have been approved for resettlement in the U.S. from resettling in those communities. The executive order, which is still in draft form, would direct federal agencies to resettle refugees “only where both the relevant state and local governments have consented to participate” in the refugee resettlement program. The federal government would have to find another location if a state or local jurisdiction does not consent to participate in the resettlement program. Resettlement agencies criticized the potential executive order as “malevolent and wasteful,” arguing it would “be an abdication of federal authority” that would force refugees to resettle only in certain states. Advocates also noted that permitting state and localities to opt out of refugee resettlement would make it more difficult to resettle refugees in areas with strong communities from the same country.

The executive order is in consideration as the Trump administration weighs a shutdown of refugee admissions for fiscal year (FY) 2020. During a meeting of security officials in July, USCIS representatives reportedly suggested setting the refugee cap for FY 2020 at a few thousand refugees or even zero.

Legal

Trump Administration Issues Rule to Expand EOIR Director’s Power over Immigration Courts

The Trump administration issued an interim final rule on August 23 that provides greater control of the U.S. immigration court system to the director of the Executive Office of Immigration Review (EOIR) in the Department of Justice (DOJ). The new rule allows the director of EOIR to issue rulings in immigration appeals cases if they are not decided by the Board of Immigration Appeals (BIA) within 90 or 180 days. These rulings can set legal precedents for all immigration court judges, providing the DOJ with more authority to shape immigration law. The rule also increases the authority of EOIR’s Office of Policy by transferring some immigration court programs to that office to “more appropriately align those programs with their policymaking character.” The rule went into effect on August 26.

The DOJ said the expanded authority of the EOIR Director does not conflict with “core functions” of the BIA. However, the union representing immigration judges criticized the new rule, saying it ends transparency and serves as a “nail in the coffin of any semblance of independent decision making” for immigration judges. Advocates also expressed their opposition to the new rule, arguing it takes power away from independent immigration judges and centralizes it in the administration’s policymakers.” The EOIR Director is a political appointee that does not require Senate confirmation. James McHenry, the current director of EOIR, previously worked as an attorney for U.S. Immigration and Customs Enforcement (ICE).

The precedent-setting authority provided to the EOIR Director was previously limited to the U.S. attorney general when he or she reversed decisions made by the BIA. On July 29, U.S. Attorney General William Barr used his authority to block asylum for people whose claims are based on their relationship to family members who have faced persecution. The decision expanded on a similar ruling by Jeff Sessions, a former attorney general, that found victims of domestic violence would no longer be considered members of a particular social group in immigration court.

The issuance of the new rule came on the same day that Attorney General Barr promoted six immigration judges with high rates of denying asylum claims to the BIA. The six new judges, who did not require Senate approval, filled four new seats created by the Trump administration and two existing vacancies and now constitute more than one-quarter of the appellate board.

Appeals Court Upholds Block on Rule Limiting Asylum, Narrows Injunction to States in the Ninth Circuit

On August 16, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction blocking the Trump administration’s interim final rule that would bar most migrants traveling to the U.S. Southern border by land from seeking asylum. Under the rule, migrants would be required to apply and be denied asylum in one of the countries they pass through before seeking protections in the U.S.

The three-judge panel ruled the Trump administration failed to show that its policy is likely to be lawful, but narrowed the ruling’s reach, limiting it to the nine Western states that constitute the Ninth Circuit, including the border states of California and Arizona. The Ninth Circuit determined that a lower court’s decision on July 24 to block the policy nationwide had been overbroad and that narrowing the injunction “allows other litigants wishing to challenge the rule to do so.” The appellate court’s decision may allow the Trump administration to implement the asylum restrictions in New Mexico and Texas, which are in different judicial circuits. On August 26, the Trump administration asked the U.S. Supreme Court to strike down the Ninth Circuit’s ruling and allow the policy to go into effect nationwide.

Trump Administration Tells Supreme Court that the Administration Has a Right to End DACA

The DOJ submitted a legal brief to the U.S. Supreme Court on August 19 arguing that the Trump administration acted lawfully when it rescinded Deferred Action for Childhood Arrivals (DACA).The Trump administration attempted to end DACA, which protects nearly 700,000 Dreamers from deportation and allows them to work legally in the U.S., in September 2017. Following the attempted rescission multiple federal courts issued separate nationwide injunctions requiring DHS to continue to allow DACA renewals, finding that the administration failed to provide an adequate explanation for the rescission. In one case, the Ninth U.S. Circuit Court of Appeals concluded that the decision to end DACA was “arbitrary, capricious or otherwise not in accordance with law.”

The DOJ’s brief argues that the Trump administration is within its authority to rescind DACA and that lower federal courts “erred” in partially blocking the rescission. Immigration advocates criticized the DOJ’s brief as another attempt to end DACA, despite its positive economic and societal impacts.

On June 28, the Supreme Court announced that it would consider whether President Trump’s rescission of DACA is lawful. The Supreme Court is scheduled to hear arguments on November 12, with a likely decision due in spring or summer 2020.

State and Local

North Carolina’s Governor Vetoes “Sanctuary” Legislation

Gov. Roy Cooper (D-North Carolina) vetoed a bill on August 21 that would have barred certain “sanctuary jurisdictions” in the state, requiring local county sheriffs to honor federal immigration detainers and to attempt to check the immigration status of all individuals in their jails charged with a crime. Gov. Cooper argued the legislation was politically motivated, unconstitutional and would “weaken law enforcement in North Carolina by mandating sheriffs to do the job of federal agents.”

The state legislature passed the bill, H.B. 370, in June reportedly in response to recently elected sheriffs in the state’s most populated counties who announced they would not comply with Immigration and Customs Enforcement (ICE) detainers. The sheriffs argued that accepting the detainers would likely undermine community safety. On August 24, President Trump called Gov. Cooper’s move to veto the legislation “a terrible decision.”

Arizona Dreamers to Receive Reduced Tuition Rates at State Universities

The Arizona Board of Regents voted unanimously on August 22 to provide Dreamers and other eligible students who graduate high school in Arizona with a lower tuition rate at state universities than they are currently paying. The reduced rate, which was originally created for Dreamers with Deferred Action for Childhood Arrivals (DACA), is 150 percent of the in-state tuition rate – an estimated $16,000 per year, compared to the in-state tuition rate of about $11,000 per year. Prior to the board’s vote, Arizona Dreamers who did not have DACA were required to pay the out-of-state tuition of about $30,000 per year. The Arizona Board of Regents noted that the new policy will allow more students who graduate from an Arizona high school and meet certain requirements to be able to afford to attend state universities.

Following the Trump administration’s attempt to rescind DACA in late 2017, the federal government stopped accepting new applications for DACA, instead only processing renewals of existing DACA recipients, consistent with court orders. As a result, Dreamers who were too young to apply for DACA before the Trump administration stopped accepting new applicants were, until now, required to pay out-of-state tuition rates in Arizona.

GOVERNMENT REPORTS

There were no immigration-related government reports published on the week of Monday, August 26, 2019.

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.

Summary of Proposed Regulations Regarding Children and Immigration Detention

This summary provides an overview of the Trump administration’s proposed regulation to modify key elements of the Flores settlement agreement and permit the long-term detention of children.

Naturalizations in the Military: A Recent Decline

This infographic illustrates the recent decline in military naturalizations as a result of the Trump administration’s policy changes that make it harder for military service members and veterans to naturalize.

* * *

*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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