Legislative Bulletin — Thursday, September 1, 2022

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. 8704

Protecting Immigrant Gold Star and Military Families Act

The bill would protect from deportation the relatives of members of the Armed Forces and veterans who have not been convicted of a felony or a significant misdemeanor.

Sponsored by Representative Ruben Gallego (D-Arizona) (1 cosponsor— 1 Democrat, 0 Republicans)

08/12/2022 Introduced in the House by Representative Gallego

08/12/2022 Referred to the House Committee on the Judiciary

H.R. 8709

Prioritizing the Removal of Migrants Act

The bill would require the Department of Homeland Security to prioritize immigration enforcement actions against immigrants who are subject to a final order of removal, have been convicted of any criminal offense, have abused any program related to receipt of public benefits, pose a risk to public safety or national security, or who are apprehended while attempting to enter the United States between ports of entry.

Sponsored by Representative Troy Nehls (R-Texas) (2 cosponsors— 2 Republicans, 0 Democrats)

08/12/2022 Introduced in the House by Representative Nehls

08/12/2022 Referred to the House Committees on Homeland Security and the Judiciary

H.R. 8710

Terrorist Reporting Act of 2022

The bill would require DHS to submit a report to Congress concerning the total number of foreign nationals apprehended by the U.S. Border Patrol after crossing the border between ports of entry whose identifying information is included within the terrorist screening database of the Homeland Security Act of 2002.

Sponsored by Representative Troy Nehls (R-Texas) (3 cosponsors— 3 Republicans, 0 Democrats)

08/12/2022 Introduced in the House by Representative Nehls

08/12/2022 Referred to the House Committees on Homeland Security and the Judiciary

H.R. 8713

Stopping Taliban Operatives from Penetrating (STOP) Act

The bill would overturn a discretionary directive provided to the Secretary of Homeland Security and the Secretary of State entitled “Exercise of Authority Under Section 212(d)(3)(B)(i) of the Immigration and Nationality Act.” The directive allows DHS and the State Department to allow people who were employed as civil servants in Afghanistan between September 27, 1996, and December 22, 2001, to apply for visas to come to the United States as long as they establish that they did not voluntarily and knowingly engage in terrorist activities on behalf of the Taliban.

Sponsored by Representative Thomas Tiffany (R-Wisconsin) (0 cosponsors)

08/12/2022 Introduced in the House by Representative Tiffany

08/12/2022 Referred to the House Committee on the Judiciary

H.R. 8714

Alien Criminal Expulsion (ACE) Act

The bill would temporarily halt the issuance of visas for residents of “recalcitrant” countries – a term used to describe foreign nations whose governments refuse to accept the return of their citizens.

Sponsored by Representative Thomas Tiffany (R-Wisconsin) (0 cosponsors)

08/12/2022 Introduced in the House by Representative Tiffany

08/12/2022 Referred to the House Committee on the Judiciary

H.R.8725

To provide supplemental appropriations for the Emergency Food and Shelter Program to provide humanitarian relief for migrants

The bill would provide an additional $50 million for the Federal Emergency Management Agency’s Emergency Food and Shelter Program (EFSP) for humanitarian assistance of migrants who have been bused into the District of Columbia by Texas and Arizona.

Sponsored by Representative Eleanor Holmes Norton (D-DC) (4 cosponsors— 4 Democrats, 0 Republicans)

08/16/2022 Introduced in the House by Representative Norton

08/16/2022 Referred to the House Committee on Appropriations

H.R. 8731

Protect Children’s Innocence Act

Among various other provisions, the bill would deny the issuance of any type of visa to foreign nationals who have conducted gender-affirming care on an underage person.

Sponsored by Representative Marjorie Taylor Greene (R-Georgia) (19 cosponsors—19 Republicans, 0 Democrats)

08/19/2022 Introduced in the House by Representative Greene

08/19/2022 Referred to the House Committees on Ways and Means, Energy and Commerce, and Education and Labor

H.R. 8759

Bureaucrats to the Border Act

The bill would require any new IRS employee hired as a result of the funding increase of the Inflation Reduction Act to complete a 30-day support detail with the DHS Mission Support Force at the border.

Sponsored by Representative Barry Moore (R-Alabama) (4 cosponsors— 4 Republicans, 0 Democrats)

08/30/2022 Introduced in the House by Representative Moore

08/30/2022 Referred to the House Committees on Ways and Means, Homeland Security, and the Judiciary

H.R. 8761

To add Ireland to the E-3 nonimmigrant visa program

The bill would add Ireland to the E-3 nonimmigrant visa program, which currently only allows Australian nationals to work in the U.S. in occupations that require theoretical and practical highly specialized knowledge and the attainment of a bachelor’s or higher degree. This is a companion bill of S.3869.

Sponsored by Representative Richard Neal (D-Massachusetts) (1 cosponsor— 1 Republican, 0 Democrats)

08/30/2022 Introduced in the House by Representative Neal

08/30/2022 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and U.S. House of Representatives will be back in session on Tuesday, September 6, 2022.

UPCOMING HEARINGS AND MARKUPS

There are no immigration-related hearings scheduled for the next week.

THEMES IN WASHINGTON THIS WEEK

Legal

After Publication of DACA Rule, 5th Circuit Requests Additional Briefings

On August 26, two days after the Department of Homeland Security released the text of a final rule codifying the Deferred Action for Childhood Arrivals (DACA) program, the Fifth Circuit requested supplemental briefings concerning the impact of the rule on pending litigation concerning legality of DACA. The case, Texas v. U.S.,  stems from a July 16, 2021 ruling from District Court Judge Andrew Hanen in which he held that DACA was unlawful, granted a permanent injunction vacating the original 2012 DACA memorandum, and prevented USCIS from approving new DACA applications.

In addition to raising substantive concerns over DACA, Judge Hanen reasoned in part that when the program was established in 2012 it had failed to follow formal notice and comment rulemaking processes under the Administrative Procedures Act. The Biden administration formalize DACA via notice and comment rulemaking to fortify it against these procedural concerns. In defense of DACA, Secretary of Homeland Security Alejandro Mayorkas stated that now that DACA is codified in the Code of Federal Regulations, the Biden administration is “hopeful that the court will allow DACA to stand.”

The Fifth Circuit held an initial hearing on the case on July 6. Following the promulgation of the rule, the court requested supplemental briefings by September 1 from both the Biden administration and the state of Texas on the impact of the rule on the concerns raised by Judge Hanen and on whether the case now needs to be retried at the district level.

The case could impact over 611,000 DACA recipients who rely on the program, and many others who may be eligible for protection. The additional briefings are expected by noon on September 1, and the Fifth Circuit could rule on the case shortly after.

Biden Administration Requests Supreme Court Not to Take Citizenship Case from American Samoa

On August 29, Solicitor General Elizabeth Prelogar requested the Supreme Court to deny certiorari to an appeal against a Tenth Circuit ruling that found that the Citizenship Clause of the Fourteenth Amendment does not confer United States citizenship on individuals born in American Samoa.

The case, Fitisemanu v. U.S., stems from a lawsuit against the federal government by three individuals born in American Samoa who live in Utah. The district court ruled in 2019 in favor of the petitioners, reasoning that “because American Samoa is under the full sovereignty of the United States, it forms part of the United States for purposes of the Citizenship Clause.” The decision was appealed by the federal government and reversed by the Tenth Circuit. The Tenth Circuit upheld a federal law that grants American nationality, but not citizenship, to individuals born in American Samoa. The court argued that “Congress has always wielded plenary authority over the citizenship status of unincorporated territories, a practice that itself harked back to territorial administration in the nineteenth century.” It noted that “residents of Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands each enjoy birthright citizenship by an act of Congress, not automatically by virtue of the Fourteenth Amendment.”

The lawsuit — which has been supported by the American Bar Association — would extend full citizenship for the 3.6 million Americans born in territories. In its request to deny certiorari, the Biden administration added that while American Samoans do not have U.S. citizenship by birth, they can naturalize as U.S. citizens after moving to any State. Hence, in the administration’s view, the naturalization procedure eliminates all the disadvantages that American Samoans have on account of their status as noncitizen nationals of the United States.

Federal

Administration to End Use of Rapid Humanitarian Process to Welcome Afghan Evacuees

According to a September 1 report, the Biden administration is planning to discontinue the use of humanitarian parole for Afghans who remain at risk following the fall of Kabul to the Taliban in August 2021. The administration’s decision— which comes as the U.S. transitions it’s ongoing evacuation efforts from the existing Operation Allies Welcome phase to a new “Operation Enduring Welcome” phase — will include a larger focus on more permanent protective pathways like the Special Immigrant Visa (SIV) and refugee resettlement processes.

Humanitarian parole is a tool that allows certain individuals to stay and work in the U.S. without a visa. It is granted for urgent humanitarian reasons and can be a much faster process than existing humanitarian processes like the SIV and refugee pathways, both of which are heavily backlogged and can take years to complete. A special humanitarian parole program was used to allow over 70,000 Afghan evacuees to resettle in the U.S. in the fall of 2021, although it provides only two years of protection and no path to permanent status in the U.S.

After the evacuation, with hundreds of thousands of Afghans left behind and at risk, more than 50,000 Afghans spent a collective $20 million on humanitarian parole applications, hoping they too could find a path to protection in the U.S. However, U.S. Citizenship and Immigration Services (USCIS), the agency responsible for adjudicating the applications, has so far processed fewer than 10,000.

According to the CBS report, starting October 1 parole will only be used in “a very small number of cases” that present “exigent circumstances.” Instead, the U.S. seeks to expedite SIV and refugee processing for Afghans, and claims it is processing some cases in less than 30 days.

Poll Shows Support for Immigration Reforms to Slow Down Inflation and Prevent Scarcity of Food

An August 31 Ohio Capitol Journal report highlighted the correlation between the increase in U.S. food prices and the labor shortages in the agricultural and food processing sectors. While the report recognizes that the root cause of inflation is multifactorial — such as disruption of exports of grain, fertilizer, and fuel due to Russia’s invasion of Ukraine, as well as supply chain challenges brought on by the Covid pandemic — it noted that labor shortages have accentuated the increase of food prices. The piece also noted that Ohio’s food banks are expected to run out of supplies this winter due in part to the scarcity of labor in the agricultural industry.

The report cited an August 30 poll released by the National Immigration Forum and Americans for Prosperity, showing that Americans across the political spectrum support immigration reform that lowers food costs. According to the poll, nearly 4 in 5 of American adults (77%) want Democrats and Republicans to work together this year on immigration reforms that could reduce food prices, address labor shortages and reduce pressures at the border.

The report and the poll came as a bipartisan group of Senators are close to agreeing on revised language for the Farm Workforce Modernization Act, a bill that provides an earned pathway to legal status for undocumented farmworkers, alterations to the H-2A seasonal agriculture visa, and enhanced immigration enforcement for the agriculture industry. The bill passed the House with bipartisan support in 2021.

Brazilian Immigrant Dies in ICE Custody and Two Kids Die Attempting to Cross the Rio Grande

On August 26, U.S. Immigration and Customs Enforcement (ICE) reported the death of a 23-year-old Brazilian national in its custody. While the official cause of the death remains unknown, an August 27 report by the Albuquerque Journal reported that human rights advocates have attributed it to a suicide attempt after months in “abhorrent conditions.” The Brazilian national had been in ICE custody since April 23 at the Torrance County Detention Facility (TCDF) in Estancia, New Mexico, while he awaited his immigration proceedings. The death happened only five months after the U.S. Department of Homeland Security’s Office of Inspector General (OIG) recommended the immediate relocation of all U.S. Immigration and Customs Enforcement (ICE) detainees located at the TCDF citing staffing shortages that have led to “excessive and avoidable unsanitary conditions.”

Also, on August 22, two kids, aged three and five years old, drowned at Rio Grande while attempting to cross into the United States from Mexico. The tragedy comes amid an increase in migrant deaths along the U.S.-Mexico border. In 2021, the International Organization for Migration (IOM) documented a record 728 deaths on the border. Hundreds more deaths have already been recorded in 2022. This year, as of July 19, U.S. Customs and Border Protection (CBP) had reported 609 migrant deaths — a record high. According to a recent report from the Government Accountability Office (GAO), U.S. Customs and Border Protection (CBP) agents tend to undercount immigrant deaths, with the number of people dying likely twice as high as has been reported.

State & Local

Texas and Arizona Continue and Expand Controversial Migrant Busing Programs

On August 26, Governor Greg Abbott (R-Texas) stated that his government had bused 8,900 migrants out of Texas since April — 7,400 migrants to Washington, DC, and over 1,500 migrants to New York City. An August 31 CNN report revealed that the controversial program had cost over $12.7 million dollars according to documents obtained through an open records request to the Texas Division of Emergency Management (TDEM). In other words, the 8,900 immigrants have been transported to D.C. and New York City at a cost of $1,427 per migrant to Texas taxpayers. In addition, on September 1, Texas’ government expanded the program and sent the first bus of migrants to Chicago.

Similarly, Arizona’s Governor Doug Ducey (R-Arizona) has spent around $3.5 million to transport migrants to Washington, D.C. According to Governor Ducey, 43 buses have departed from Arizona to Washington D.C. carrying 1,574 migrants, who are primarily from Colombia, Peru, and Venezuela.

The controversial busing initiatives have strained resources in New York City and Washington, D.C. On August 16, Representative Eleanor Holmes Norton (D-DC) introduced an emergency appropriations bill to provide an additional $50 million for the Federal Emergency Management Agency’s Emergency Food and Shelter Program (EFSP) for humanitarian assistance of migrants who have been bused into the District of Columbia by Texas and Arizona. Also, according to a New-York-based coalition of immigrant rights, the city needs over $40 million for medical services, interpreters, legal assistance, and resettlement services. The ESFP already provides significant resources to shelters and nonprofits in border regions working to welcome arriving migrants and asylum seekers.

GOVERNMENT REPORTS

United Nations Committee on the Elimination of Racial Discrimination (CERD); “Concluding observations on the combined tenth to twelfth reports of the United States of America“; August 30, 2022.

In its concluding observations of the United States’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, CERD expressed concern over the use of excessive force by Border Protection officers against racial and ethnic minorities. CERD also urged the United States to end enforcement programs that promote racial profiling of immigrants.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

The Current State of DACA: Challenges Await in Litigation and Rulemaking

This explainer describes the current state of the Deferred Action for Childhood Arrivals (DACA) program, discussing the ongoing attempts to scale back or end the program in the courts and the current administration’s attempts to preserve the program.

Explainer: Dedicated Docket for Immigrant Families Arriving at the Southwest Border

The ultimate goal of the Dedicated Docket for Immigrant Families Arriving at the Southwest Border is to decrease the amount of time it takes for migrant family units to receive adjudications on their cases while simultaneously ensuring due process. Despite the well-intentioned goal, the explainer also looks at the significant challenges in its first year of implementation.

What Makes a Border Secure? Building a Healthier Border Dialogue

This paper creates an actionable border security framework based on the best and most appropriate available metrics and data. It surveys previous and ongoing attempts to describe and quantify border security, and it proposes a series of policy recommendations to create a healthier dialogue around securing our border, including an expanded role for the DHS Office of Immigration Statistics and the creation and publication of new border metrics.

* * *

*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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