Legislative Bulletin – Friday, April 8, 2016

Policy and Advocacy Associate

April 8, 2016

Bills Introduced and Considered

There were no immigration bills introduced or considered during the week of April 4, 2016.

Nominations and Confirmation

Senate Republicans continue to refuse to consider Judge Merrick Garland’s nomination to fill the vacancy on the U.S. Supreme Court. Garland, a well-known moderate figure who serves as the chief judge on the Court of Appeals for the District of Columbia, was nominated by President Barack Obama to serve as the nation’s 113th Supreme Court justice on March 16. After the announcement, Republican Senate leaders stated that the Senate will not confirm a nominee until next year when a new President is sworn into office.

On April 6, Senator Mark Kirk (R – Illinois) distributed a memo to his Republican Senate colleagues calling on them to meet with Garland. Kirk became the first Republican Senator to meet with Garland on March 29. Initially, Kirk and three other Republican Senators supported holding confirmation hearings for Garland, but Senators Lisa Murkowski (R – Alaska) and Jerry Moran (R – Kansas) reversed their positions during the week after strong pushback from Republican Senate leaders and conservative activists. Despite the reversal, at least 17 Republican Senators have voiced a willingness to hold meetings with Garland. Senators Murkowski (R – Alaska), Jeff Flake (R – Arizona), Rob Portman (R – Ohio) and Kelly Ayotte (R – New Hampshire) are scheduled to meet with Garland next week.

Legislative Floor Calendar

The U.S. House of Representatives will be in session from Tuesday, April 12, 2016 through Friday, April 15, 2016.

The U.S. Senate will be in session the week of Monday, April 11, 2016.

Upcoming Hearings and Markups

The Distortion of EB-5 Targeted Employment Areas: Time to End the Abuse

Date: Wednesday, April 13, 2016 at 10:00 a.m. (Senate Judiciary Committee)

Location: Dirksen Senate Office Building 226

Witnesses: TBD

Proposed Reforms to Rule XXI and the Modern Authorization and Appropriations Process

Date: Thursday, April 14, 2016 at 3:00 p.m. (House Committee on Rules, Subcommittee on Rules and Organization of the House)

Location: H-313 The Capitol

Witnesses: TBD

Keeping Pace With Trade, Travel and Security: How Does CBP Prioritize and Improve Staffing and Infrastructure?

Date: Tuesday, April 19, 2016 at 10:00 a.m. (House Homeland Security)

Location: 311 Cannon House Office Building

Witnesses: TBD

Themes in Washington This Week

Sanders, Cruz Victories in Wisconsin Primaries; Trump Releases Details on Border Wall

Senators Bernie Sanders (D – Vermont) and Ted Cruz (R – Texas) pulled off strong victories in the Wisconsin presidential primaries on April 5. Exit polls from the Wisconsin primary indicate that almost two-thirds of GOP voters believe that undocumented immigrants working in the U.S. should be offered legal status if they meet certain criteria.

On April 5, the Trump campaign released a detailed proposal on how to pay for the wall in the U.S.-Mexico border, which was heavily criticized as unworkable.

Senate to Move Forward With Appropriations Process in Mid-April; House Undecided

Senate Majority Leader Mitch McConnell (R – Kentucky) announced on April 5 that the Senate will move forward on the Fiscal Year 2017 spending bills in mid-April. Although the Senate missed the April 1 target for reporting a budget resolution out of committee, McConnell said that he expects the appropriations process to move forward with the topline spending levels agreed to last year. He noted that the Senate is ready to move ahead of the House if necessary by using “leftover” Fiscal Year 2016 spending bills passed by the House as legislative vehicles to avoid procedural hurdles. Senator Barbara Mikulski (D – Maryland) noted on April 6 that she expects subcommittee allocations to be disclosed on April 14. The allocations will inform subcommittee chairmen how much discretionary spending their panel controls.

The appropriations process in the House has been slowed due to the large number of House conservatives who oppose a budget resolution with the topline spending levels agreed to last year by former Speaker John A. Boehner (R – Ohio). The House may wait until May 15 to bring appropriations bills to the floor.

USCIS Stops Accepting H-1B Visa Applications for Fiscal Year 2017

On April 7, U.S. Citizenship and Immigration Services (USCIS) hit the congressionally-mandated H-1B cap of 65,000 and stopped accepting new H-1B applications for fiscal year (FY) 2017. USCIS  began accepting H-1B visa applications on April 1 and will conduct a lottery to select recipients of the visas. Some estimate that almost 250,000 applications were filed.

U.S. businesses utilize the H-1B program to employ foreign workers in specialized fields such as science, technology and engineering. The first 20,000 H-1B petitions filed on behalf of individuals with advanced degrees (U.S. master’s degree or higher) are exempt from the cap. Last year for FY 2016, USCIS stopped accepting applications on the exact same date, April 7. Given the excess demand for the visas, business leaders have called on Congress to increase the cap.

Complaint Alleges Border Patrol Seized Immigrants’ Property

The Department of Homeland Security (DHS) received a complaint from civil and immigrant rights organizations on April 6 claiming that U.S. Border Patrol agents along the southwest border took the personal belongings of undocumented immigrants before deporting them to Mexico. The complaint alleges that 26 immigrants suspected of being in the country without authorization were returned to Mexico without their belongings. In one case, agents allegedly seized $400 from a 23-year-old woman after detaining her near a land port-of-entry in El Paso, Texas. The complaint alleges that the money was never returned. Other belongings seized by agents included wedding rings, glasses and identification papers, including documents needed to travel and work in Mexico.

DHS said that it will investigate the complaint and that it has a policy of protecting detainees’ property and returning their belongings when they are deported.

ICE Undercover Agents Arrest 21 for Visa Fraud

This week an undercover operation by DHS’ Immigration Customs Enforcement agency led to the arrest of 21 brokers, recruiters and employers for conspiracy to commit visa fraud and to harbor aliens for profit. The second charge carries up to 10 years in prison. The authorities created a fake university, the University of Northern New Jersey, which had no actual classes and did not enroll actual students.  The 21 people arrested allegedly paid the school thousands of dollars to produce paperwork that made it look as if foreign “students” were enrolled at the university to allow the students the ability to maintain visa status without having to go to class. The students involved do not face criminal charges, but may be deported.

Public Officials File Amicus Briefs Contesting Executive Actions on Immigration

A number of public officials filed amicus briefs in the Supreme Court on April 4 in support of the challenge to President Obama’s executive actions on immigration. The executive actions were halted by a federal judge after 26 states sued the Obama administration in United States v. Texas, which ultimately brought the case before the Supreme Court.

Notably, the U.S. House of Representatives filed an amicus brief arguing that President Obama overstepped his authority by providing temporary relief from deportation for approximately five million undocumented immigrants. The House voted largely along party lines on March 15 to authorize the filing of the amicus brief. In addition, 43 Republican Senators signed joined an amicus brief led by Senate Majority Leader Mitch McConnell (R – Kentucky) contesting the executive actions. Governor Greg Abbott (R – Texas) led the governors of Alabama, New Jersey, New Mexico, South Dakota and Wisconsin to file a separate amicus brief with the Supreme Court.

The Supreme Court will hear oral arguments in United States v. Texas on April 18.

“One Person One Vote” Principle Upheld by the Supreme Court

The U.S. Supreme Court upheld the “one person one vote” principle on April 4. In a unanimous decision, the Supreme Court held that all 50 states may keep drawing their legislative districts based on counts of all residents, whether or not they are eligible to vote. The ruling rejected the efforts of challengers who argued that states should ignore non-citizens and others who do not participate in elections.

A decision to refrain from counting non-citizens could have negatively affected the elective power of places with large non-voting populations – often consisting of legal but not naturalized immigrants, undocumented immigrants and children – which tend to be concentrated in urban locations. Such a decision would have amplified the impact of rural districts. A number of states, including Texas, California, New York, New Jersey, Arizona and Nevada, would have been among the most likely to lose congressional districts.

Despite the unanimous vote, some experts point out that the battle may not be over, as the court did not forbid the use of alternative measures for drawing congressional districts, including only counting adult residents.

Court of Appeals: DACA Recipients Can Continue to Receive Driver’s Licenses in Arizona

The U.S. Court of Appeals for the Ninth Circuit ruled on April 5 that Arizona must continue to issue state driver’s licenses to undocumented immigrants who came to the United States as children and were granted work authorization under the Deferred Action for Childhood Arrival (DACA) program by denying an appeal to overturn the lower court’s permanent injunction.

The three-judge panel ruled in response to an appeal filed by Attorney General Mark Brnovich (R – Arizona) that sought to overturn a permanent injunction issued in December 2015. After the Obama administration rolled out DACA in June 2012, former Governor Jan Brewer (R – Arizona) issued an executive order directing state agencies to deny public benefits, including driver’s licenses, to young people receiving deferred action under DACA. Brewer argued that DACA recipients were not entitled to driver’s licenses because they lacked a legal status. However, U.S. District Court Judge David G. Campbell issued a permanent injunction in January 2015 that blocked Brewer’s executive order. Campbell noted that Arizona has issued driver’s licenses in the past to non-citizens who have received work permits for similar reasons.

Arizona is one of two states that fought to deny driver’s licenses to young people approved for DACA. The other state is Nebraska, which has also begun issuing driver’s licenses.

Virginia Governor Vetoes Immigration Enforcement Bills

Governor Terry McAuliffe (D –Virginia) vetoed legislation on April 5 that would have prevented state and local law enforcement from releasing individuals suspected of violating U.S. immigration laws. McAuliffe issued the veto in both English and Spanish, noting that the bills would have unfairly treated immigrants and usurped state and local authority. The bills, known as SB270 and HB481, would have prohibited the release of individuals who federal immigration officials requested be detained beyond their sentences through a lawful detainer order. The bills attempted to circumvent a 2014 opinion by Attorney General Mark R. Herring (D – Virginia) that advised sheriffs that they have no legal authority under a federal detainer order to hold inmates beyond their release dates. Opponents of the proposed legislation noted that Virginia law already provides state and local law enforcement officials with the discretion to decide how to respond to detainers. They also argued that the bills would have lead to the stigmatization of non-citizens in legal disputes with federal immigration officials.

Government Reports

Congressional Research Service: Supreme Court Appointment Process: President’s Selection of a Nominee, April 1, 2016 (by Barry J. McMillion)

This CRS report provides a broad overview of the appointment process for a Supreme Court Justice, including the speed by which a President generally selects a nominee for a vacancy and the occasions where Presidents have made temporary “recess appointments” to the Court without the consent of the Senate.

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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.