Legislative Bulletin – Friday, July 10, 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

S.4110

The Hong Kong Safe Harbor Act

The bill would protect certain Hong Kong residents who participated peacefully in the Hong Kong protest movement and have a well-founded fear of persecution. The bill designates qualifying residents of the Hong Kong Special Administrative Region as eligible for Priority 2 Refugee processing in Hong Kong or a third country. Under the bill, applicants for non-immigrant visas who were arrested for protest-related offenses or served in a humanitarian or organizing role in the protests will not have the intent to immigrate considered as a negative factor in their visa application, permitting them to seek future asylum claims. In the event the People’s Republic of China revokes the residency of Hong Kong residents who apply for a U.S. visa or for refugee status, the bill preserves their eligibility to obtain entry as victims of political persecution.

Sponsored by Senator Marco Rubio (R-Florida) ) (4 cosponsors – 3 Democrats, 1 Republican)

06/30/2020 Introduced in the Senate by Senator Rubio

06/30/2020 Read twice and referred to the Senate Committee on the Judiciary

H.R. 7415 

The Hong Kong Safe Harbor Act 

The bill would protect certain Hong Kong residents who participated peacefully in the Hong Kong protest movement and have a well-founded fear of persecution. The bill designates qualifying residents of the Hong Kong Special Administrative Region as eligible for Priority 2 Refugee processing in Hong Kong or a third country. Under the bill, applicants for non-immigrant visas who were arrested for protest-related offenses or served in a humanitarian or organizing role in the protest will not have intent to immigrate considered as a negative factor in their visa application, permitting them to seek future asylum claims. In the event the People’s Republic of China revokes the residency of Hong Kong residents who apply for a U.S. visa or for refugee status, the bill preserves their eligibility to obtain entry as victims of political persecution. This bill is a companion bill to S. 4110. 

Sponsored by Representative John Curtis (R-Utah)(17 cosponsors  8 Republicans, 9 Democrats) 

06/30/2020 Introduced in the House by Representative Curtis 

06/30/2020 Referred to the House Committees on Foreign Affairs and the Judiciary 

S.4161

The Ban Birth Tourism Act

The bill would amend the Immigration and Nationality Act to outlaw the practice of “birth tourism.” The bill would provide for inadmissibility for certain aliens seeking citizenship for children by giving birth in the United States.

Sponsored by Senator Marsha Blackburn (R-Tennessee) (1 cosponsor – 1 Republican, 0 Democrats)

07/02/2020  Introduced in the Senate by Senator Blackburn

07/02/2020  Read twice and referred to the Senate Committee on the Judiciary

H.R. 7569

The Immigration Enforcement Moratorium Act

The bill would halt deportations during the COVID-19 pandemic and provide for the release of people with removal orders in detention. Among other things, the bill would also halt CBP and ICE arrests, in-person ICE check-ins and removal proceedings, and criminal prosecutions for unlawful entry and reentry during the pandemic.

Sponsored by Representative Frederica Wilson (D-Florida) (1 cosponsor – 1 Democrat, 0 Republicans)

07/09/2020 Introduced in the House by Representative Wilson

07/09/2020 Referred to the House Committee on the Judiciary and the House Committee on Foreign Affairs

H.R.7508

The bill would provide $1.2 billion in emergency supplemental funding to the U.S. Citizenship and Immigration Services (USCIS) through the end of 2020.

Sponsored by Representative Emanuel Cleaver (D-Missouri) (1 cosponsor – 1 Republican, 0 Democrats)

07/09/2020  Introduced in the House by Representative Cleaver

07/09/2020  Referred to the House Committee on Appropriations and the House Committee on the Budget.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will be on recess the week of Monday, July 13, 2020.

UPCOMING HEARINGS AND MARKUPS

Oversight of ICE Detention Facilities: Examining ICE Contractors’ Response to COVID-19

Date: Monday, July 13, 2020 at 2:00 p.m. (House Homeland Security Committee – Subcommittee on Border Security, Facilitation, and Operations)

Location: Virtual Hearing

Witnesses:

Damon T. Hininger, President and CEO, CoreCivic

George C. Zoley, Chairman and CEO, The GEO Group

Scott Marquardt, President and CEO, Management & Training Corporation (MTC)

Rodney Cooper, Executive Director, LaSalle Corrections

Full Committee Markup of FY2021 Defense, Commerce, Justice, Science, and Related Agencies and Transportation, Housing and Urban Development, and Related Agencies Appropriations Bills  

Date: Tuesday, July 14, 2020 at 10:00 a.m. (House Appropriations Committee) 

Location: 1100 Longworth House Office Building 

Full Committee Markup of FY 2021 Homeland Security, Financial Services and General Government Appropriations Bills, and the Revised 302bs 

Date: Wednesday, July 15, 2020 at 10:00 a.m. (House Appropriations Committee) 

Location: 1100 Longworth House Office Building 

THEMES IN WASHINGTON THIS WEEK

Federal

New Policy Would Require International Students to Leave the U.S. if Schools Are Online-Only  

U.S. Immigration and Customs Enforcement (ICE) announced on July 6 that it will publish a Temporary Final Rule requiring an international student attending a school in the U.S. to leave the country or transfer schools if the school will only provide online instruction in the fall in response to the COVID-19 pandemic. The new rule would apply to tens of thousands of F-1 or M-1 student visa-holders, and allow students to take more than one class or three credit hours online if the academic institution provides a hybrid-model of instruction.

Many colleges and universities rely on the tuition of international students to operate. Harvard University and the Massachusetts Institute of Technology (M.I.T.), who like many other schools have been carefully planning their reopening in the fall since mid-March, have filed a lawsuit challenging the policy change arguing that the directive violates the Administrative Procedure Act because it lacks evidence of well-founded reasoning or that ICE considered the harms to students and schools and because they did not provide an opportunity for the public to provide input on the proposed change. The universities argue that the policy throws higher education into chaos, puts the lives of students and older professors and staff at risk and is meant to force them to open. The state of California has become the first state to sue over the guidelines, with Attorney General Xavier Becerra calling the order “arbitrary and capricious” and a move that could put everybody at risk.

Senior Officer Performing the Duties of the Deputy Secretary of the Department of Homeland Security (DHS) Ken Cuccinelli defended the order stating that students “have no basis to be here” if schools are all online and that it provides more flexibility for international students who previously could take no more than one online course to qualify for their visa. However, when many schools moved to only online instruction in the spring during the public health emergency, DHS’ Student and Exchange Visitor Program (SEVP) suspended the in-person instruction requirement.

The administration’s order has faced widespread criticism, including from the U.S. Chamber of Commerce. In a statement, CEO Thomas J. Donohue stated that the policy will “inflict significant harm upon American colleges and universities, their students, the business community, and our economy,” urging the administration to “rethink this ill-conceived policy.”

Many students have expressed concerns about returning home, including having to attend courses in the middle of the night if in different time zones, returning to places in the midst of economic and political crisis, lacking sufficient resources and stable internet connections, or having to stop teaching or participating in research that could also be tied to scholarships.

Trump Administration Expected to Rescind DACA

According to a July 6 report in The Hill, the Trump administration is preparing to rescind Deferred Action for Childhood Arrivals (DACA) again, just weeks after the Supreme Court ruled that its previous attempt “failed to consider important aspects of the problem” and was “arbitrary and capricious.” President Trump tweeted shortly after the Supreme Court decision that he intended to refile “enhanced papers” to end protections for the approximately 650,000 young immigrants. While the Hill article suggested DACA rescission is imminent, when the rescission would take effect and whether there would be a wind-down period remains unclear.

While the Supreme Court found the Administration’s past reasoning for rescinding DACA was inadequate, it did not preclude further attempts to end the program with more considered rationale.

On July 7, a group of prominent Evangelical leaders wrote a letter to the President urging him “to leave DACA in place until such a time as Congress has passed legislation to permanently protect Dreamers.” Polls continue to indicate show significant support for providing Dreamers a path to permanent legal status.

Immigration Enforcement and Border Wall Provisions Included in House Spending Bills

In a series of fiscal year (FY) 2021 spending bills introduced on July 6, House Democrats called for reduced funding for immigration enforcement and detention and included language to bar the transfer of military funding for border barrier construction on the U.S.-Mexico border. The spending bill for the Department of Homeland Security (DHS) would reduce funding for Immigration and Customs Enforcement (ICE) deportation efforts by 25% and prevent the hiring of additional Border Patrol agents. The DHS spending bill also includes provisions that would reduce spending on immigration detention, providing funding for 3,000 fewer detention beds and instituting additional requirements that facilities be under capacity during the COVID-19 pandemic.

The House 2021 spending bill for military construction includes a provision prohibiting the use of any appropriated military construction funding from being used on border barrier construction efforts. Since 2018, the Trump Administration has transferred over $10 billion in funds originally appropriated for the military and used it to construct fencing on the southern border. One provision in the House defense spending bill aims to return some of this funding to its original accounts, targeting specifically a $3.8 billion tranche that had been transferred to barrier construction efforts from accounts dedicated to military fighter jets, shipbuilding, and equipment for the National Guard.

Markup for the House spending bills is scheduled for the week of July 13.

 New Asylum Rule Would Bar Migrants Coming from Countries with Outbreaks of Disease

On July 8, the Trump administration proposed a new asylum rule that would block migrants from applying for asylum if they came from or passed through a country experiencing a widespread contagious disease. The new rule would expand an immigration law provision stating that applicants can be denied asylum if they pose a danger to the country. The rule would classify migrants as a threat if they come from or pass through a country experiencing an outbreak of COVID-19, even if they do not experience symptoms or test positive. The federal agencies assert the proposed rule is a response to the COVID-19 pandemic, although if implemented the rule would apply to any disease the U.S. government designates as a public health emergency.

The rule would also prevent migrants from applying for withholding of removal, a subsidiary protection offered to those not eligible for asylum but who still fear persecution upon their return.

The rule is the latest in a series of restrictions the administration has made or is proposing to make to the asylum system. The public has until August 10 to provide comments on the new proposal before it is finalized.

Legal

Ninth Circuit Strikes Down Third-Country Asylum Rule

On July 6, the Ninth Circuit Court of Appeals ruled against DHS’s third-country asylum rule. The rule, aimed primarily at Central American asylum seekers, requires bars asylum claims from those who passed through a third country while in transit to the U.S. unless they have already unsuccessfully sought and been denied asylum in that third country prior to requesting it in the U.S. Two of the judges on the three-judge panel held that the rule exceeds DHS’s statutory authority under the Immigration and Naturalization Act (INA). The third judge agreed with the decision but argued that the rule is instead invalid because it was not adequately reasoned, as required by the Administrative Procedure Act (APA).

The Ninth Circuit previously issued a temporary injunction halting the third-country asylum rule, which was stayed by the Supreme Court in September 2019 and its stay will remain in place until the Supreme Court decides whether to review the Ninth Circuit’s decision. In a separate case on June 30, a federal district judge in Washington, D.C. held that the rule violates notice-and-comment requirements in the APA.

The impact of both decisions is limited for the immediate future, given the Supreme Court’s stay of the earlier Ninth Circuit injunction and the recent promulgation of several COVID-19-related border restrictions, including a Centers for Disease Control and Prevention (CDC) rule that has resulted in the summary expulsion of thousands of asylum seekers and unaccompanied children arriving at the U.S.-Mexico border.

Trump Administration May Separate Migrant Families Detained by Immigration and Customs Enforcement

In July 9 filing in federal court in Washington, D.C., the Trump administration argued against the release of families held at three ICE family detention centers. The filing, which is related to ongoing litigation seeking the protection of families in immigration detention before U.S. District Judge James Boasberg, follows a June 26 order in separate litigation from U.S. District Judge Dolly Gee. Judge Gee ruled that all children held for over 20 days in the three facilities must be released by July 17 due to the centers being “on fire” with the coronavirus.

Judge Gee oversees the 1997 Flores settlement agreement, which controls how the federal government must treat detained immigrant children, but she does not have jurisdiction over the adults in custody in the family detention facilities. While the ruling seemed to give ICE multiple options to comply, including–simply releasing the children together with their families, the July 9 filing in the D.C. litigation indicates that ICE is considering separating the families by releasing children and keeping parents in detention. On July 7, DHS acting secretary Chad Wolf suggested that DHS would seek to deport the families prior to the July 17 deadline. In May, DHS reportedly offered some parents a “binary choice,” forcing them to choose between prolonged family detention or family separation.

A hearing in the D.C. litigation is set for July 13.In total, 260 family members are being held in family detention facilities, with approximately thirty people in these facilities testing positive for COVID-19 since June 19.

State

COVID-19 Outbreaks in ICE Detention Centers Continue 

Nearly half of the 300 employees at the Eloy Detention Center in Arizona have tested positive for COVID-19, according to July 8 reports by both employees and detained migrants at the facility. According to ICE’s weekly count, 871 detainees have tested positive out of 11,828 total tests, however, the agency has failed to regularly publish information regarding COVID-19 cases amongst contract employees at its facilities. Employees, immigrant advocates, lawyers and public defenders have been working tirelessly to release detainees for the health of both the migrants and the employees. An employee at the Elroy detention center said that insufficient contract tracing in the facility is leading to the rapid spread between staff, detainees and family members of the staff. 

GOVERNMENT REPORTS

Department of Homeland Security Office of Inspector General (OIG); Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019, July 1, 2020

This report provides an overview of OIG findings during four unannounced inspections of Immigration and Customs Enforcement (ICE) detention facilities in 2019. The report identified numerous problems in the facilities, including segregation or isolation practices that infringed on detainees’ rights, improper resolution of detainee grievances, and standards-violating living conditions. The report includes pictures of leaking toilets and faucets and torn mattresses in the facilities, among other examples of observed conditions.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: International Students

This fact sheet provides demographic details on international students and describes the opportunities and challenges they face while looking for work after graduation. The resource also notes the economic contribution of international students and discusses how U.S. policy towards international graduates compares to other countries with competitive higher educational institutions.

Border Security Along the Southwest Border: Fact Sheet

This fact sheet provides an overview of border security resources and migration trends along America’s Southwest border.

U.S. Supreme Court Allows DACA to Survive

This explainer describes the June 18 Supreme Court decision which allowed Deferred Action for Childhood Arrivals (DACA) to remain in place. It explains the Supreme Court’s reasoning, discusses what the decision means for Dreamers, and highlights the costs of continued congressional inaction on the issue.

* * *

*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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