Legislative Bulletin: Thursday, September 2, 2021

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. Con. Res. 14

A concurrent resolution setting forth the congressional budget for the United States Government for fiscal year 2022 and setting forth the appropriate budgetary levels for fiscal years 2023 through 2031.

The concurrent resolution provides the framework for the passage of a $3.5 trillion budget package for fiscal year 2022. Concerning immigration, the budget resolution allocates $107 billion to the Judiciary Committee, including instructions for “lawful permanent status for qualified immigrants” and “investments in smart and effective border security measures.”

Sponsored by Senator Sanders (D-Vermont) (10 cosponsors—10 Democrats, 0 Republicans)

08/09/2021 Introduced in the Senate by Senator Bernie Sanders

08/11/2021 Resolution agreed to in Senate with amendments by a 50 – 49 vote.

08/24/2021 Resolution agreed to in the House of Representatives by a 220 – 212 vote.

H.R. 5060

To direct the Inspector General of the Department of Defense to conduct an investigation into the withdrawal of the United States armed forces from Afghanistan

Sponsored by Representative Carlos Gimenez (R-Florida) (13 Cosponsors– 13 Republicans, 0 Democrats)

08/20/2021 Introduced in the House by Representative Gimenez

08/20/2021 Referred to the House Committee on Armed Services

H.R. 5062

Americans not Aliens Act

The bill would prohibit employment authorization for immigrants with final orders of removal.

Sponsored by Representative Paul Gosar (R-Arizona) (6 Cosponsors– 6 Republicans, 0 Democrats)

08/20/2021 Introduced in the House by Representative Gosar

08/20/2021 Referred to the House Committee on the Judiciary

H.R. 5068

Prioritize Evacuation of U.S. Citizens in Afghanistan Act

The bill would instruct President Biden to prioritize and expedite the evacuation and relocation of U.S. citizens and their families in Afghanistan.

Sponsored by Representative W. Gregory Steube (R-Florida) (5 Cosponsors– 4 Republicans, 1 Democrat)

08/20/2021 Introduced in the House by Representative Steube

08/20/2021 Referred to the House Committee on Foreign Affairs and the Committee on Armed Services

H.R. 5071

To direct the Secretary of Defense to submit to Congress daily reports on the evacuation of citizens and permanent residents of the United States from Afghanistan

The bill would direct the Secretary of Defense, in consultation with the Department of State, to submit daily reports to Congress on the evacuation of citizens and permanent residents of the United States from Afghanistan.

Sponsored by Representative Mike Gallagher (R-Wisconsin) (35 Cosponsors– 35 Republicans, 0 Democrats)

08/23/2021 Introduced in the House by Representative Gallagher

08/23/2021 Referred to the House Committee on Armed Services

H.R. 5072

Housing for Afghan Allies Act of 2021

The bill would provide financial assistance to Afghan nationals in the United States under Special Immigrant Visas (SIV) and P-2 refugees to pay rent, utilities, and home energy costs.

Sponsored by Representative Ami Bera (D-California) (0 Cosponsors)

08/23/2021 Introduced in the House by Representative Bera

08/23/2021 Referred to the House Committee on Financial Services

H.R. 5096

Afghan and Iraqi Allies Resettlement Improvement Act

The bill would assist Special Immigration Visa (SIV) holders with their transition to life in the United States. It would direct the Department of Health and Human Services to survey SIV holders as part of their Annual Survey of Refugees. The bill would also direct the Department of State to identify and implement additional ways to deliver information to SIV applicants about life in the United States to assist with their adjustment process. Finally, the bill would direct the Department of Defense and the Department of State to jointly establish and operate a program to offer employment to SIV holders in the U.S. as translators, interpreters, and cultural awareness instructors.

Sponsored by Representative Doris Matsui (D-California) (26 Cosponsors– 26 Democrats, 0 Republicans)

08/24/2021 Introduced in the House by Representative Matsui

08/24/2021 Referred to the House Committee on the Judiciary and the Committees on Foreign Affairs

H.R. 5102

Flights for Freedom Act

The bill would prohibit the United States from soliciting or accepting funds from American citizens or lawful permanent residents of the United States as a condition of their repatriation from Afghanistan during the period of evacuation related to the withdrawal of Armed Forces from Afghanistan.

Sponsored by Representative Claudia Tenney (R-New York) (2 Cosponsors– 2 Republicans, 0 Democrats)

08/24/2021 Introduced in the House by Representative Tenney

08/24/2021 Referred to the House Committee on Foreign Affairs

H.R. 5117

Ensuring Evacuation from Afghanistan Act of 2021

The bill would prohibit the provision of federal funds to the Government of Afghanistan until all U.S. citizens, legal permanent residents, coalition partners, and Afghan allies who would like to evacuate from Afghanistan have been evacuated from the country.

Sponsored by Representative Mariannette Miller-Meeks (R-Iowa) (0 Cosponsors)

08/27/2021 Introduced in the House by Representative Miller-Meeks

08/27/2021 Referred to the House Committee on Foreign Affairs

H.R. 5127

Afghanistan Withdrawal Oversight and Liability (AWOL) Act

The bill would direct the Biden administration to present a series of reports to Congress on the withdrawal from Afghanistan. The reports would be required to detail efforts to evacuate citizens and lawful permanent residents of the United States, the total number of Special Immigrant Visa-eligible and refugee-eligible individuals who remain in Afghanistan, and any  agreements made between the United States and the Taliban.

Sponsored by Representative Mike Gallagher (R-Wisconsin) (17 Cosponsors– 17 Republicans, 0 Democrats)

08/31/2021 Introduced in the House by Representative Gallagher

08/31/2021 Referred to the House Committee on Foreign Affairs and the Committee on Armed Services

H.R. 5134

Showing American Values by Evacuating (SAVE) Afghan Partners Act of 2021

The bill would increase the Special Immigrant Visa (SIV) cap for Afghan interpreters and other partners at risk by 10,000. The bill would also extend the eligibility for SIVs to Afghans who were employed under U.S. grants and cooperative agreements.

Sponsored by Representative Jason Crow (D-Colorado) (1 Cosponsor– 1 Republican, 0 Democrats)

08/31/2021 Introduced in the House by Representative Crow

08/31/2021 Referred to the House Committee on the Judiciary

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate and the U.S. House of Representatives will not be in session the week of September 6, 2021.

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

House of Representatives Passes Budget Resolution as Democrats Move Forward with Immigration Reforms in Budget Reconciliation Process

On August 24, in a party-line vote, the U.S. House of Representatives passed a $3.5 trillion budget resolution for fiscal year (FY) 2022. The resolution is the first stage of the budget reconciliation process, which allows Democrats and the Biden administration to avoid a Senate filibuster and pass legislation with a simple majority. The resolution — which will serve as the blueprint for an omnibus spending bill — provides targeted spending and revenue levels for various policy changes, including multiple immigration provisions. The budget resolution previously passed the Senate on August 11.

The $3.5 trillion resolution allocates $107 billion to the Judiciary Committee, which Democrats are hoping to use to provide a pathway to citizenship for Dreamers, Temporary Protected Status (TPS) holders, undocumented farmworkers, and other essential workers. Democrats are also planning to allocate approximately $10 billion for smart and effective border security measures focused on infrastructure at legal entry points. According to a July 23 Axios report, the funds could be put toward facilities for handling asylum claims, additional staff for higher cross-border traffic areas, expanding immigration courts to address backlogs, alternatives to detention programs, and repairs of ports of entry.

The budget resolution only passed the House after negotiations between House Speaker Nancy Pelosi and a group of nine moderate Democrats, led by Representative Josh Gottheimer (D-New Jersey). Gottheimer argued that the House should first consider a $1.2 trillion bipartisan infrastructure bill. The nine moderates ultimately agreed to move forward with the budget reconciliation process after reaching a compromise that included a deadline to turn to infrastructure by September 27.

Next, House and Senate committees will begin hammering out the details and text of the omnibus spending bill according to allocations provided in the budget resolution. House Democrats have agreed to a non-binding deadline of September 15 for committees to draft and mark up legislative text. Following passage in the House, relevant immigration provisions must still pass muster with the Senate Parliamentarian and survive Senate alterations as well as a rapid “vote-a-rama” amendment process.

America Concludes Withdrawal from Afghanistan as Afghan Allies Seek Refuge in the US

On August 31, President Biden announced the full withdrawal of U.S. troops from Afghanistan and the conclusion of “the largest airlift in U.S. history,” a 17-day evacuation of approximately 120,000 people from Hamid Karzai International Airport in Kabul. In addition to U.S. citizens and citizens of other allied nations, among those evacuated were tens of thousands of at-risk Afghans who assisted the U.S. military effort or who were otherwise under threat.

However, it remains unclear exactly how many Afghan allies were evacuated, or which kinds of protection they might qualify for. On September 1, a State Department official stated that the majority of Afghans eligible for either Special Immigrant Visa (SIV) status or for Priority 2 (P2) refugee status were not evacuated and were left behind. Both programs were designed to protect Afghans who were under threat on account of their work for the U.S. military or U.S.-based organizations in Afghanistan, and advocates estimate that as many as 263,000 SIV- and P2-eligilbe Afghans have not yet found a way out of the country. In the capital of Kabul, the Taliban is reportedly going door-to-door, targeting those with close ties to the U.S.

On August 23, the administration announced it would be using its humanitarian parole authority to process many of the evacuated Afghans who do not already have visas. Parole is faster than either SIV or refugee processing, and a broader population of Afghans at risk may be eligible for parole protections (including Afghan women and girls, human rights activists, journalists, and others). The administration is reportedly preparing to parole in as many as 50,000 Afghans. Parole shields individuals from deportation for two years and allows them access to work authorization, but advocates have raised concerns that parolees are not eligible for many of the federal benefits that are provided to SIVs and parolees. Parolees are also not provided with a direct path to permanent status, and many will have to either continue their SIV applications from inside the U.S. or apply for asylum protections.

At least nine Republican and five Democrat governors offered their support to resettle Afghan refugees in their states. In a letter addressed to President Biden, Governor Spencer Cox (R-Utah), stated, “We understand the pain caused by forced migration and appreciate the contributions of refugees in our communities.”

Legal

Supreme Court Denies Biden Administration’s Appeal, Requires “Good Faith” Re-implementation of Remain in Mexico Program

On August 24, the U.S. Supreme Court denied the Biden Administration’s emergency appeal for a stay to avoid reinstating the Migrant Protection Protocols (MPP), commonly known as the Remain in Mexico program. The decision required the Biden Administration to resume the enforcement and implementation of the MPP “in good faith.” MPP was a Trump-era policy that required certain asylum seekers to return to Mexico and wait while their claims were adjudicated in the U.S.

The Supreme Court’s decision came after a Texas district judge ruled on August 13 that the Biden administration’s termination of MPP violated the Administrative Procedures Act (APA). The district judge argued that DHS failed to consult with states that may have been affected by the decision and that the recission memorandum failed to articulate a satisfactory explanation for ending the program. The Fifth Circuit refused to stay the ruling upon appeal from the Department of Justice (DOJ). On August 20, the DOJ filed an emergency motion for a stay before the Supreme Court. In a one-page decision, the Court denied the motion, stating that the Biden administration had failed to show that the rescission of MPP was not arbitrary and capricious.

On August 24, the Biden Administration announced that while it disagreed with the decision and would continue to fight it in court, DHS had begun to engage with the government of Mexico in diplomatic discussions to revive MPP. On the morning of August 25, a leaked DHS memo made clear that reinstatement of MPP “hinges on Mexico’s concurrence, as well as on the establishment of appropriate infrastructure, processes, systems, and capabilities.”

The result of the discussions with Mexico remain unclear. However, one immediate impact of the Court’s ruling is that the U.S. has paused the process of paroling in asylum seekers who had been returned to Mexico under MPP during the Trump administration. The application portal to apply for that process was closed on August 24, shortly after the Supreme Court’s ruling.

Advocates have repeatedly raised concerns about the safety of migrants who have been or will be returned to northern Mexico under MPP. An August 24 Human Right First report found 6,356 instances of publicly-reported violent attacks against migrants who were expelled to Mexico by U.S. officials since Biden took office in January. An August 25 New York Times report noted the dire and unsafe conditions in a large migrant encampment near the Mexican border city of Reynosa.

Fifth Circuit Temporarily Stays Texas Court’s Block on ICE Immigration Enforcement Priorities

On August 19, U.S. District Judge Andrew Tipton issued a nationwide preliminary injunction that blocked the enforcement and implementation of two Immigration and Customs Enforcement (ICE) memorandums. The two memos, known as the Pekoske Memo and the Johnson Memo, encouraged ICE to prioritize enforcement efforts concerning unauthorized immigrants who are either recent border-crossers or who may pose national security and public safety threats. The memos also instructed ICE agents to refrain from detaining or deporting victims of serious crimes and pregnant or nursing women.

On August 25, the Fifth Circuit temporarily stayed the injunction until further notice, leaving the enforcement priorities in effect.

Tipton had argued that the memos violated the Administrative Procedures Act (APA), as they were implemented without a public notice and comment period. The Biden administration and legal scholars have questioned the ruling, noting that that previous administrations have also set priorities for immigration enforcement, and that prosecutorial discretion is an inherent and necessary power for ICE to function effectively.

Federal Judge Blocks Texas Gov. Abbott’s Directive on Stopping Vehicles Suspected of Transporting Migrants

On August 26, a federal judge in El Paso, Texas, blocked Governor Greg Abbott’s (R-Texas) Executive Order that directed Texas state troopers to stop vehicles suspected of transporting undocumented migrants. In granting a preliminary injunction against the directive, the District Judge argued that the order violates the supremacy clause of the Constitution by authorizing state officials to interfere with federal immigration enforcement activities. Governor Abbott had argued that the purpose of the order was to prevent the spread of COVID-19. However, the judge noted that “the order seems to do little to protect public health despite its purported motivations.”

The preliminary injunction will remain in place until the case is resolved on the merits. However, Governor Abbott and Texas may appeal the stay before the 5th Circuit Court of Appeals.

Governor Abbott issued the controversial Executive Order on July 28, amid growing concerns over an increase in COVID-19 cases in Texas. Critics and advocates raised concerns that the directive would lead to racial profiling and would interfere with the lawful transport of some migrants by Texas non-profit organizations, including those who partner with federal and local authorities. Many of these non-profits are working with the federal government to provide COVID-19 testing and vaccinations and helping to quarantine those who test positive.

State & Local

Texas House Approves Additional Funding for Border Security

On August 31, the Texas House of Representatives, by a vote of 85-36, passed a bill that would allocate an additional $1.88 billion towards securing the Texas-Mexico border. The bill, House Bill 9, allocates Governor Greg Abbott’s (R-Texas) office $1.02 billion to spend on improving border security, of which $750 million is slated for the construction of additional physical barriers on the border. The additional funding is on top of the $1.05 billion that was already appropriated by the Texas State House earlier this year. The new funds will also be used to increase state law enforcement presence along the border and for converting existing state detention centers into migrant holding facilities.

GOVERNMENT REPORTS

Congressional Research Service (CRS): Temporary Protected Status and Deferred Enforced Departure; July 20, 2021

This report presents an overview of the elements, background, and countries currently designated for Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). TPS is a provision that allows the Department of Homeland Security to designate countries experiencing civil unrest, violence, or natural disasters to prevent the removal of nationals of such nations from the United States. As of March 11, 2021, approximately 320,000 foreign nationals from ten countries who are living in the United States are protected by TPS. DED is a temporary, discretionary, administrative stay of removal granted to immigrants from designated countries. Unlike TPS, a DED designation emanates from the President’s constitutional powers to conduct foreign relations and has no statutory basis. Certain Liberians, Venezuelans, and residents of Hong Kong present in the United States currently maintain relief under DED.

Department of Homeland Security (DHS) Office of the Inspector General (OIG): USCIS Needs to Improve Its Electronic Employment Eligibility Verification Process; August 23, 2021

This report analyzes the accuracy and deficiencies of the E-Verify system, which allows the U.S. Citizenship and Immigration Services (USCIS) to verify the employment eligibility of newly hired individuals. DHS OIG identified deficiencies in E-Verify’s processes for confirming identity during employment verification. It also found that E-Verify’s photo-matching process is not fully automated, but rather, relies on employers to confirm individuals’ identities by manually reviewing photos. The agency noted that E-Verify returned an “Employment Authorized” result for almost 3,000 non-U.S. citizens who did not meet USCIS’ verification requirements. Finally, OIG discovered that E-Verify deemed nearly 4,000 non-U.S. citizens as “Employment Authorized” based on an employer-sponsored visa without verifying that the individual was hired by the sponsoring employer.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Fact Sheet: Pathways to Protection for Afghans at Risk

This resource provides a comparison between three pathways to protection for Afghans: SIV status, the P2 refugee program, and Humanitarian Parole. It also summarizes the eligibility requirements for each pathway and notes the different application timelines and vetting procedures. The fact sheet also describes what we know about the numbers resettled so far under each pathway and what benefits they receive.

Explainer: Humanitarian Parole and the Afghan Evacuation

This resource explains what parole is, describes the eligibility requirements and vetting procedures currently in place for Afghan parolees, and discusses what benefits parolees receive when they arrive in the U.S. The explainer also discusses the options available for those at risk who have been left behind in Afghanistan, as humanitarian parole can also be accessed by those who are able to escape on their own to third countries.

Fact Sheet: Registry

This resource provides more information about registry, a provision of immigration law that allows individuals to apply for a green card provided they entered the United States before a particular date.

* * *

*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. Danilo can be reached at acastellanos@immigrationforum.org. Thank you.

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