Legislative Bulletin – Friday, April 13, 2018

Policy and Advocacy Associate

April 13, 2018

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

There were no immigration-related bills introduced or considered on the week of Monday, April 9, 2018.

LEGISLATIVE FLOOR CALENDAR

The U.S. Senate will be in session the week of Monday, April 16 2018.

The U.S. House of Representatives will be in session from Monday, April 16, 2018 to Thursday, April 19, 2018.

UPCOMING HEARINGS AND MARKUPS

Fiscal Year (FY) 2019 Members Day Hearing for Labor and Health and Human Services (HHS)

The budget request for the Department of Labor includes funding for skills and workforce development programs, which help to improve the skills of U.S. workers, including immigrants.

Date: Tuesday, April 17, 2018 at 10:00 a.m. (House Appropriations Subcommittee on Commerce, Justice, Science and related Agencies)

Location: H309 The Capitol

Fiscal Year (FY) 2019 Members Day Hearing for Commerce, Justice, Science, and Related Agencies

Date: Tuesday, April 17, 2018 at 10:30 a.m. (House Appropriations Subcommittee on Commerce, Justice, Science and related Agencies)

Location: H309 The Capitol

Strengthening and Reforming America’s Immigration Court System

Date: Wednesday, April 18, 2018 at 2:30 p.m. (Senate Judiciary Subcommittee on Border Security and Immigration)

Location: 226 Dirksen Senate Office Building

Witnesses:

Panel I

Rebecca Gambler, Director, Homeland Security and Justice, U.S. Government Accountability Office (GAO)

James R. McHenry III, Director, Executive Office for Immigration Review (EOIR), U.S. Department of Justice

Panel II

Hilarie Bass, President, American Bar Association

Andrew R. Arthur, Resident Fellow, Center for Immigration Studies

Judge A. Ashley Tabaddor, President, National Association of Immigration Judges

FY 2019 Bureau of the Census

Date: Wednesday, April 18, 2018 at 10:30 a.m. (House Appropriations Subcommittee on Commerce, Justice, Science and related Agencies)

Location: H-309 The Capitol

Witnesses:

Ron Jarmin, Acting Director, U.S. Census Bureau

Robert Goldenkoff, Director of Strategic Issues, U.S. Government Accountability Office (GAO)

David Powner, Director of Information Technology, U.S. Government Accountability Office (GAO)

FY 2019 Budget for the Department of State and Foreign Operations

Date: Thursday, April 19, 2018 at 9:30 a.m. (House Appropriations Subcommittee on State, Foreign Operations, and Related Programs)

Location: 2359 Rayburn House Office Building

Witnesses:

Steve Linick, Inspector General, U.S. Department of State and Broadcasting Board of Governors

Ann Calvarsi Barr, Inspector General, U.S. Agency for International Development

THEMES IN WASHINGTON THIS WEEK

Federal

Sessions Orders “Zero-Tolerance” Policy for First-Time Border Crossers

Attorney General Jeff Sessions on April 6 ordered federal prosecutors in districts along the southern border to follow a “zero tolerance” policy on people apprehended entering the United States without authorization. Sessions directed federal prosecutors to make those entering the U.S. without authorization for the first time – a misdemeanor offense with a maximum six months of prison and up to a $250 fee – priorities for prosecution. He also told prosecutors to work with the Department of Homeland Security (DHS) to create guidelines for prosecuting offenses under immigration law.

The U.S. Department of Justice (DOJ) directive could inundate the justice system, straining already overburdened federal dockets in border districts. When the federal government has previously prioritized prosecutions of first-time border crossers in the past, federal judges have held group hearings with upwards of 80 individuals at a time. Such hearings have been criticized as “cattle call[s] in the courts,” since they involve mass guilty pleas and typically only one taxpayer-funded lawyer represents the group. While appellate courts have upheld the legality of such expedited hearings, advocates say they deprive immigrants of due process.

Critics of the policy also note that it could punish asylum seekers in a violation of international treaties and deny them an opportunity to make valid asylum claims, a problem previously identified by the DHS Office of Inspector General (OIG) in 2015.

The Department of Justice claimed that the new policy is in response to statistics from DHS that showed a 203 percent increase in border crossings from March 2017 to March 2018 and a 37 percent increase from February 2018 to March 2018. However, border crossings in fiscal year (FY) 2018 remains at a 46-year low and below the number of crossings at the same period in FY 2017. The increase between February and March 2018 is also consistent with typical seasonal partners of migration.

DOJ Suspends Immigration Legal Orientation Program, Help-Desk Program

The Department of Justice (DOJ) announced on April 11 that it will suspend funding for the Legal Orientation Program, a legal-advice program offered to detained immigrants facing deportation, while it audits the program’s cost-effectiveness. On April 10, the DOJ notified The Vera Institute of Justice, a legal advocacy group that operates the Legal Orientation Program as well as a “help desk” program for those who call seeking legal advice over the phone, of the suspensions of both programs the previous day. The programs receive about $8 million a year in federal funding, although a 2012 DOJ cost analysis showed that the program resulted in a net savings to the government of about $18 million.

The Legal Orientation Program, created in 2003 under the George W. Bush administration, last year served 53,000 individuals in more than a dozen states. The program provides information sessions to detainees to explain their rights, how the court process works and their possible defenses to deportation. Because immigration courts are separate from U.S. criminal courts, defendants are not entitled to a government-appointed lawyer. The Vera Institute said that about 8 in 10 detainees in immigration court do not have a lawyer.

An immigration court official speaking on the condition of anonymity reportedly said that the review will examine whether the programs duplicate efforts within the immigration court system. He noted that immigration judges are already required to inform immigrants of their rights before a hearing. However, advocates said that the program provides a legal lifeline for undocumented immigrants facing deportation, especially now that the DOJ will place a new quota on the number of cases each immigration judges must close per year (a minimum of 700 cases), effectively reducing the amount of time an immigration judge can focus on one case.

President Trump Signs Memo to End “Catch and Release”

On April 6, President Donald Trump signed a memorandum ordering federal agencies “to take important steps” to end a practice that allows asylum seekers to be released from immigration detention while they wait for a hearing with an immigration judge, which the Trump administration has referred to as “catch and release.” Advocates noted that the memorandum could lead to widespread denial of due process for migrants who present themselves at the border, including those seeking asylum, and significantly expand the number of people placed in indefinite detention as they wait for their cases to be resolved in immigration court, which has a backlog approaching almost 700,000 cases.

The memorandum orders the Department of Homeland Security (DHS), in coordination with the Department of Justice and other agencies, to submit a report within 45 days outlining “all measures that their respective departments have pursued or are pursuing to expeditiously end ‘catch and release’ practices” per President Trump’s Executive Order 13767 on border security and immigration enforcement. It also requests a “detailed list of all existing facilities, including military facilities” that could be used to hold immigrants in detention, a move that potentially could lead to the detention of asylum seekers on military installations.

National Guard Troops Will Provide Mission Support along the Border, Not Apprehend Border Crossers

The Department of Defense (DoD) on April 6 authorized the payment of up to 4,000 National Guard troops to head to the U.S.-Mexico border through September 30, following the Trump administration’s announcement that it would deploy National Guard troops to the southwest border.

According to a Defense Department spokesperson, the National Guard troops will not apprehend immigrants entering the U.S. or carry out armed patrols along the border. Instead, they will provide air support through drones and helicopters, operate surveillance systems such as cameras and blimps, assist with facility maintenance, help maintain roads and other infrastructure, and clear vegetation. Defense Secretary James Mattis pledged on April 12 that National Guard troops would have a limited mission and operate under a policy of “no contact with the migrants.”

Gov. Jerry Brown (D-California) announced on April 11 that California would accept federal funding to deploy about 400 California National Guard troops, but noted that the troops would only be used to “combat transnational crime…not [for rounding] up women and children…[and not for] enforcing federal immigration laws.” President Trump promptly thanked Brown for the deployment. Previously, on April 9, Texas announced it would be sending at least 1,000  National Guard troops to the U.S.-Mexico border, an increase from last week’s figure of 250. Gov. Susana Martinez (R-New Mexico) ordered 80 troops to the border, with 250 eventually expected so serve in the operation. Arizona will deploy 338 troops.

On April 9, the Tohono O’odham Nation, a Native American tribe with lands on both sides of the border, issued a statement noting that National Guard troops will not be deployed on their lands.

Although the purpose of the operation is to combat what the Trump administration characterizes as “unacceptable” illegal border crossings, the number of apprehensions of illegal entrants along the border is at a 46-year low, a fact previously touted by the administration.

Speaker Ryan Announces Retirement, Raising Question about DACA

Speaker Paul Ryan announced  on April 11 that he will not run for re-election in 2018, but will serve as Speaker until the end of his term in January 2019. News of Speaker Ryan’s retirement reverberated across Capitol Hill, including its potential impact on discussions to find a permanent, legislative solution for Deferred Action for Childhood Arrivals (DACA) recipients. Ryan has in the past expressed a commitment to finding a legislative solution for DACA recipients.

Meanwhile, Rep. Jeff Denham (R-Calif.) noted on April 10 that he has secured support from more than 40 House Republicans on his “Queen of the Hill” resolution, which would bring four immigration bills that include a DACA-fix to the floor of the House. Rep. Denham said that one of the four bills would be of Speaker Ryan’s choosing, which Rep. Denham indicated would likely be a bill that mirrors President Trump’s four-pillars immigration framework. Rep. Denham’s announcement reportedly came on the same day Speaker Ryan and his leadership team held an in-depth discussion on immigration.

Nielsen, CBP and ICE Officials Testify Before House Appropriations Committee

Department of Homeland Security (DHS) Secretary Kirstjen Nielsen testified on April 11 before the House Appropriations Subcommittee on Homeland Security, ostensibly about the department’s $46 billion budget request for fiscal year (FY) 2019. During the hearing, Nielsen was pressed on the issue of family separation, stating that the Trump administration’s policy only permits separating immigrant families when it is necessary to protect the children. Rep. Lucille Roybal-Allard (D-California) noted that in at least one case the process of verifying a familial relationship and reuniting the mother and child took four months. Nielsen agreed the verification process for that case took too long.

Nielsen told Rep. Dan Newhouse (R-Washington) that he continues to have “[her] commitment to help find a permanent solution” on DACA. Nielsen said that DACA recipients and those who have submitted a DACA application to U.S. Citizenship and Immigration Services (USCIS) will not be an enforcement priority unless the individual commits a crime that invalidates his or her DACA protection. Nielsen also voiced support for finding a permanent solution for Temporary Protected Status (TPS) holders and an openness to adding more visas for temporary foreign workers.

On refugees, Nielsen indicated that the number of refugees admitted to the U.S. in fiscal year (FY) 2018 is just about 10,000 because the government has made a decision to use its limited resources to process those who are already in the U.S. seeking asylum as quickly as possible. Nielsen also told the committee that the National Guard will provide support to allow Border Patrol agents to go back “on the front line.”

The following day, the House Appropriations Subcommittee on Homeland Security held a hearing on the FY 2019 budget request for U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE). CBP Commissioner Kevin McAleenan testified that one of the most important things CBP has learned from constructing border wall prototypes is that the physical barrier be see-through, and that concrete works better as a secondary fence. Matthew Albence, Executive Associate Director of ICE’s Enforcement and Removal Operations (ERO), testified that ERO conducts targeted raids prioritizing public safety and national security threats, those who have re-entered the U.S. without authorization and/or have orders of removal. Rep. David Price (D-NC) pressed back, arguing that the administration’s enforcement priorities apply to all undocumented immigrants. Albence later noted that any undocumented immigrant encountered during “targeted operations” will be apprehended and placed in removal proceedings as collateral, even if they do not have a criminal record.

White House Removes Chad from Travel Ban List

The Trump administration announced that starting on April 13 nationals of Chad will be able to receive visas to once again enter the United States, removing the country from the administration’s travel ban list. The proclamation states that Chad has improved its identity-management and information sharing practices enough to allow for the country to be removed from the third iteration of the travel ban. The countries remaining on the administration’s travel ban list are Iran, Libya, Somalia, Yemen, Syria, North Korea and Venezuela.

Trump Administration Reportedly Seeking to Deport Protected Vietnamese Refugees

Ted Osius, a former American ambassador to Vietnam, stated this week that the Trump administration is seeking to deport thousands of Vietnamese refugees back to their country despite a bilateral agreement shielding them from deportation. Osius said that the effort began in April 2018 and contributed to his decision to resign in October that same year.

Many of the targeted refugees were supporters of the former U.S.-backed state of South Vietnam, and may be seen as destabilizing elements by the current Vietnamese government. Osius asserted that a “small number” of people protected by the agreement have already been deported. In 2008, the U.S. and Vietnam signed a bilateral agreement that states, “Vietnamese citizens are not subject to return to Vietnam” if they “arrived in the United States before July 12, 1995.”

U.S. Immigration and Customs Enforcement (ICE) said that there are 8,600 Vietnamese immigrants in the U.S. subject to deportation, including 7,821 with criminal convictions. ICE did not specify the reason those without criminal convictions had been targeted. Osius stated that most of those targeted for deportation arrived in the U.S. prior to 1995 and should be protected from deportation.

The Trump administration has labeled Vietnam and eight other countries “recalcitrant” for their unwillingness to accept their deported nationals, though the two countries are reportedly now “in discussions” over the issue.

American and Salvadoran Bishops Call for Permanent Solution to TPS

A group of American and Salvadoran bishops met in Washington D.C. on the week of April 9 to advocate for a long-term solution for Temporary Protected Status (TPS) holders, including the nearly 200,000 Salvadorans whose TPS is set to expire in September 2019 and must leave the United States by that date. The bishops spoke to congressional representatives, State Department officials, and other political leaders, explaining the devastating humanitarian and economic consequences of the administration’s decision to terminate TPS for El Salvador.

The U.S. Department of Homeland Security (DHS) grants TPS to eligible foreign-born individuals who are unable to return home safely due to conditions or circumstances preventing their country from adequately handling their return. In January 2018, the Trump administration decided that it would end TPS protection for nearly 200,000 people from El Salvador who have lived in the U.S. since an earthquake struck their country in 2001.

State & Local

Gov. Northam Vetoes Virginia Anti-Sanctuary Bill

On April 9, Gov. Ralph Northam (D-Virginia) vetoed House Bill 1257, which would outlaw so-called sanctuary jurisdictions in Virginia. In vetoing the bill, Northam noted that it “imposes an unnecessary and divisive requirement upon localities regarding the enforcement of federal immigration laws” and would “force [localities] to divert money and manpower away from their core public safety functions.” He also expressed concern that the bill would “send a clear message to people across this Commonwealth that state and local law enforcement officials are to be feared and avoided rather than trusted and engaged,” undermining community trust and public safety.

Narrow Republican majorities in the Virginia House of Delegates and the Virginia Senate passed the bill on party-line votes in March. Critics of the bill noted that there are no sanctuary jurisdictions in Virginia.

Iowa Gov. Reynolds Signs Anti-Sanctuary Jurisdictions Bill

On April 10, Governor Kim Reynolds (R-Iowa) signed Senate File 481, which would strip state funding from cities and counties that place limits on immigration enforcement. The anti-sanctuary jurisdiction bill passed the state House on April 3 and passed the state Senate the following day.

Under the new bill, a local entity will lose state funding if it adopts policies that limit its involvement in federal immigration enforcement. The bill requires that all jurisdictions comply with federal immigration detainer requests, which courts have found to be legally dubious. The bill  also prevents localities from establishing policies that would limit local law enforcement officers from participating in federal immigration enforcement or  bar them from inquiring about the immigration status of a person who is under arrest and sharing that information with other officials.

Opponents of Senate File 481 noted that Iowa does not have any so-called sanctuary jurisdictions and that the bill is likely to lead to racial profiling and foster distrust between local law enforcement and immigrant communities, harming community safety.

Legal

Federal Court: DOJ Cannot Tie Grants to Immigration Enforcement

On April 12, a federal judge in California barred the U.S. Department of Justice (DOJ) from withholding grant funding from states and localities it maintains are not adequately cooperating with federal immigration authorities.

In 2017, DOJ attached a series of conditions on Community Oriented Policing Services (COPS) and other law enforcement grants, including requirements that law enforcement agencies must provide U.S. Immigration and Customs Enforcement (ICE) agents with access to jail facilities to interview inmates and to review relevant records. DOJ also required law enforcement agencies to give ICE 48 hours of advance notice before releasing inmates flagged for deportation. Expressing concern that increasing local law enforcement’s role in immigration enforcement would undermine trust between immigrant communities and law enforcement, Los Angeles declined to follow the new conditions. DOJ then stripped millions of dollars in grant funding from the city, prompting it to file a lawsuit against DOJ – City of Los Angeles v. Sessions.

Citing the principles of federalism and separation of powers, U.S. District Judge Manuel Real ruled in favor of Los Angeles, issuing a nationwide permanent injunction barring DOJ from conditioning of law enforcement funds in this manner. Judge Real wrote that the DOJ policy “upset the constitutional balance between state and federal power by requiring state and local law enforcement to partner with federal authorities,” improperly commandeering state and local officials into directly carrying out federal regulatory programs. Judge Real further objected to the executive branch unilaterally creating new conditions on federal grants, noting that this power properly belonged to Congress, consistent with separation of powers principles enshrined in the U.S. Constitution.

Arizona Supreme Court Blocks In-State College Tuition for DACA Recipients

The Arizona Supreme Court ruled on April 9 that the state’s public colleges and universities cannot grant in-state tuition to DACA recipients, blocking a decision from the Maricopa Community Colleges to provide in-state rates to DACA recipients. The judges unanimously agreed with a ruling from the Arizona Court of Appeals, which argued current state laws, including Proposition 300 which requires people have a lawful immigration status to receive public benefits like in-state tuition, do not allow Arizona institutions of higher education to provide in-state tuition rates to DACA recipients. About 2,000 DACA recipients are currently enrolled in Maricopa Community Colleges.

The ruling will force DACA recipients in Arizona’s public institutions of higher education to pay higher rates for their education. For instance, in-state tuition for the next school year at Arizona State University is $9,834, while non-resident students pay $27,618. A non-resident rate for Arizona high school graduates, which could potentially apply to DACA recipients, amounts to 150 percent of the in-state tuition rate, or $14,751.

The Arizona Supreme Court released its decision early to allow DACA recipients and the state to have as much time as possible to plan for the effects of the ruling. The full explanation of the court decision will be released by May 14.

GOVERNMENT REPORTS

There were no immigration-related government reports published on the week of Monday, April 9, 2018.

SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES

Statement for the Record for House Hearing on Central American “Caravan”

This statement for the record for the U.S. House of Representatives Committee on Oversight and Government Reform hearing on “A ‘Caravan’ of Illegal Immigrants: A Test of U.S. Borders” provides an overview of U.S. border security policies, the Central American caravan traveling north to seek safe haven in Mexico and the U.S., and the U.S. asylum process.

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