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Hello all,
The National Immigration Forum's Legislative Bulletin for Friday, May 7, 2021 is now posted.
You can find the online version of the bulletin here: https://immigrationforum.org/article/legislative-bulletin-friday-may-7-2021/
All the best,
Danilo
LEGISLATIVE BULLETIN - Friday, May 7, 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
A bill to expedite detainee transport to border patrol processing facilities
The bill would establish a program under U.S. Customs and Border Protection that would expedite the transport of immigrant detainees to Border Patrol processing facilities. As part of the program, the bill would require at least 300 Border Patrol agents to have a commercial driver’s license with a passenger endorsement, with at least five of those licensed agents available at each Border Patrol station during each shift. The bill would further require a minimum number of buses to be available for detainee transport at several Border Patrol sectors.
Sponsored by Senator Martin Heinrich (D-New Mexico) (2 cosponsors — 1 Republican, 1 Democrat)
04/29/2021 Introduced in the Senate by Senator Heinrich
04/29/2021 Referred to the House Committee on the Judiciary
The Remote Emergency, Medical, Online Training, Telehealth, and EMT (REMOTE) Act
The bill would require CBP to make EMT and paramedic training available free of charge to U.S. Border Patrol agents in each border patrol sector along the southern border. The bill would also require CBP to credit agents with work time for any EMT or paramedic training and make any necessary lodging and per diem available, as well as increase the rate of pay for those who have been certified.
Sponsored by Senator Martin Heinrich (D-New Mexico) (2 cosponsors — 1 Republican, 1 Democrat)
04/29/2021 Introduced in the Senate by Senator Heinrich
04/29/2021 Referred to the House Committee on Homeland Security and Governmental Affairs
Keeping America’s Energy Resources Moving Act of 2021
The bill would create a new temporary nonimmigrant category for noncitizens on sea crews who are engaged in transferring liquid cargo from one ship to another. These "lighter" crews assist larger vessels involved in the refining and petrochemical industries. Currently crewman have access to C1/D visas which expire in 29 days, and the bill would create a new status that would extend up to 180 days.
Sponsored by Representative Sylvia Garcia (D-Texas) (5 cosponsors — 4 Republicans, 1 Democrat)
04/30/2021 Introduced in the House by Representative Garcia
04/30/2021 Referred to the House Committee on the Judiciary
The American Families United Act
The bill would provide the Department of Homeland Security and the Attorney General with the discretion to stop the deportations of certain noncitizens based on humanitarian purposes to preserve family unity for U.S. citizen spouses or parents of U.S. citizen children.
Sponsored by Representative Veronica Escobar (D-Texas) (1 cosponsor — 1 Republicans, 0 Democrats)
04/30/2021 Introduced in the House by Representative Escobar
04/30/2021 Referred to the House Committee on the Judiciary
The Foreign National Firearms Background Check Enhancement Act
The bill would require noncitizens planning to purchase or possess a firearm via a hunting license to first petition for a one-year waiver from the Attorney General.
Sponsored by Representative Charlie Crist (D-Florida) (2 cosponsors — 1 Republican, 1 Democrat)
05/04/2021 Introduced in the House by Representative Crist
05/04/2021 Referred to the House Committee on the Judiciary
LEGISLATIVE FLOOR CALENDAR
The U.S. Senate will be in session the week of May 10, 2021
The U.S. House of Representatives will be in session from Tuesday, May 11, 2021 to Friday, May 14, 2021.
UPCOMING HEARINGS AND MARKUPS
Date: Wednesday, May 12, 2021 at 2:30 pm ET (Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety)
Location: Dirksen Senate Office Building Room 226 and Virtual
Witnesses: TBD
Date: Thursday, May 13, 2021 at 10:00 am ET (House Committee on Appropriations)
Location: Virtual
Witnesses:
Tae Johnson, Acting Director, U.S. Immigration and Customs Enforcement
Date: Thursday, May 13, 2021 at 10:15 am ET (Senate Homeland Security and Government Affairs Committee)
Location: Dirksen Senate Office Building Room 342 and Virtual
Witnesses:
Alejandro Mayorkas, Secretary, Department of Homeland Security
Date: Thursday, May 13, 2021 at 2:00 pm ET (House Foreign Affairs Subcommittee on Western Hemisphere, Civilian Security, Migration, and International Economic Policy)
Location: Virtual
Witnesses:
Arachu Castro, Ph. D., MPH, Samuel Z. Stone Endowed Chair of Public Health in Latin America, Tulane University School of Public Health and Tropical Medicine
Tatiana Bertolucci, Regional Director for Latin America and the Caribbean, CARE International
R. Evan Ellis, Ph. D., Latin America Research Professor, US Army War College
THEMES IN WASHINGTON THIS WEEK
Federal
Biden Raises Refugee Ceiling to 62,500 in Reversal
On May 3, President Biden formally raised the refugee resettlement ceiling for fiscal year (FY) 2021 to 62,500 from a historic low of 15,000. The new cap comes two weeks after the Biden administration’s previous announcement that it would be keeping the low ceiling set by the Trump administration, then quickly backtracking following intense pushback from lawmakers and advocates. In the May 3 announcement, Biden added a caveat that it is unlikely that the U.S. can accept 62,500 admissions by the end of the fiscal year due to scaled-back infrastructure after years of resettlement under the Trump administration and subsequent lack of funding. "We are working quickly to
undo the damage of the last four years. It will take some time, but that work is already underway" Biden said in a statement.
More than 100 of the 325 refugee resettlement offices open in 2016 closed by mid-2019 due to the Trump administration’s reductions in refugee admissions. "Restarting those offices is not something we can do overnight," said Krish O’Mara Vignarajah, president of Lutheran Immigration and Refugee Service, one of the nine agencies tasked with resettling refugees, "we have to hire staff; we have to reengage those communities; we have to work with State Department to recertify the sites. All those things can be a months-long process." Despite these challenges, resettlement agencies have praised the administration’s decision to raise the refugee ceiling. A
representative from the International Rescue Committee said that, "The way you rebuild capacity is by setting ambitious commitments that signal to domestic and international stakeholders that U.S. leadership is back."
Senate Democrats Mull Reconciliation to Pass Immigration Reforms
According to a May 3 New York Times report, Senate Majority Leader Chuck Schumer (D-New York) is exploring the possibility of using budget reconciliation to pass immigration reforms. According to the report, Schumer views the budget maneuver as a backup plan in the event bipartisan negotiations fall short.
Budget reconciliation bills are passed by a simple majority in the Senate, and circumvent the Senate’s 60-vote filibuster threshold. However, strict rules limit what can be passed under reconciliation, and it remains unclear whether the Senate parliamentarian will allow certain immigration reforms to be included.
In addition, not all Senate Democrats have expressed support for the use of reconciliation. Senators Kyrsten Sinema (D-Arizona) and Joe Manchin (D-West Virginia) have both expressed their support for pursuing bipartisan compromise rather than using budget reconciliation. Senator Dick Durbin (D-Illinois) is leading a group of Senators in
bipartisan discussions that could lead to an immigration reform package.
Arrivals Plateau as Administration Finds Both Success and Continued Challenges in Border Response
According to a May 3 CNN report, preliminary data from U.S. Customs and Border Protection (CBP) appears to confirm previous reports that unauthorized border crossings plateaued in the month of April. After sharp increases in February and March, the data suggests that CBP is on pace to encounter approximately 162,000 individuals at the Southwest border in April, down from 172,000 in March. CBP has not released official data for April, however, and on May 3 DHS Secretary Alejandro Mayorkas cautioned
that, "the numbers remain high, whether they are as high as March is yet undetermined."
A record number of arriving unaccompanied children (UACs) has posed a particular challenge for the administration’s border response, although that figure also appears to have leveled off. When children at the border are determined to be unaccompanied, they are required by law to be transferred within 72 hours from CBP holding cells to Office of Refugee Resettlement shelters. In February and March, the increase in arriving UACs resulted in ORR shelters reaching capacity and children getting backed up for far longer than 72 hours in severely overcrowded CBP holding centers, which are not meant to care for children. To address the influx, the Biden administration has expanded shelter capacity under ORR by opening at least 15 emergency facilities. As of May 4, the number of UACs in CBP custody had fallen to 735, down from a high of more than 5,700 in late March. Over this span, the average time spent in CBP custody has dropped to
below 24 hours, well below the legal limit.
Despite these successes, concerns remain about conditions in the emergency facilities, which administration officials have made clear are only a "short-term solution." Typically, ORR shelters are licensed for childcare by state agencies and provide a range of
educational, legal, and health services. The emergency intake sites are not state-licensed, and many are staffed by volunteers who are able to provide a more limited range of services to the children. Two emergency sites were shuttered shortly after opening, reportedly due to understaffing and safety concerns.
While most arriving unaccompanied children are being processed and moved to ORR care, hundreds of migrant children from Mexico have been immediately repatriated under a 2008 law that calls for unaccompanied children from contiguous countries — Canada and Mexico — to be immediately returned. The administration has also continued to rapidly expel most arriving single adults and many families — even those seeking humanitarian protection — under a pandemic-era rule called Title 42. However, according to an April 30 report, the Biden administration is allowing more asylum-seeking families to enter the U.S. through legal ports of entry at the border, and it plans to establish more clear exceptions to Title 42 expulsions for certain vulnerable families.
Official ICE Deportations Fall as Rapid Expulsions Remain High
Immigration and Customs Enforcement (ICE) deported 2,962 people in April, the agency’s lowest monthly total since its establishment in 2003. The number of immigrants in ICE custody has also fallen to the lowest level in more than a decade, with about 15,000 current detainees, down from a peak of more than 50,000 detained per day under the Trump administration prior to the COVID-19 pandemic.
However, the reduced deportation figures do not include expulsions under Title 42 that allow CBP to summarily return recently arrived migrants, including those seeking asylum and humanitarian protection. Approximately 700,000 border-crossers have been expelled under Title 42 since March 2020, but because of the rapid nature of the process, these are not counted in official deportation figures. Official deportations fell dramatically in April 2021 when Title 42 was initially invoked by President Trump, and the drop has continued since Biden’s inauguration.
DHS Will Suspend Biometric Requirements for Spouses of High-Skilled Immigrant Workers
According to a May 4 report, the Department of Homeland Security (DHS) is planning to suspend the fingerprint screening of spouses of certain high-skilled immigrant workers, namely H-1B specialty occupation and L-1 executive and manager visa holders. Starting on May 17, DHS will lift the biometrics
requirement for these spouses for two years to prevent further bottlenecks and delays in the visa renewal process.
This decision comes amid a class-action lawsuit filed on behalf of H-1B and L spouses against the screening requirements, which were introduced in 2019 by the Trump administration. The plaintiffs had argued that the rule was unnecessary and only served to delay H-1B and L spouses from receiving visas. As of May 3, over 123,000 spouses were waiting in the backlog. Prior to DHS’s decision to suspend the screening, a group of large tech companies — including Microsoft, Salesforce, Google, and Twitter — filed an amicus brief in support of the plaintiffs, arguing that fingerprint requirements and the ensuing backlogs were
causing personal and financial damage to them and their employees.
Plaintiffs stressed that in addition to removing the biometric requirement, the government must invest more resources in efficiently processing visa applications in order to address the growing backlog.
Separately, on May 7, DHS withdrew a Trump-era proposed rule that would have expanded biometric collection of those encountering the U.S. immigration system, including certain U.S, citizens.
Biden Administration Returns Military Funds Diverted to Border Wall and Begins Limited Repairs Along the Border
On April 30, the Biden administration announced it was undertaking a series of actions related to the construction of barriers along the Southwest border.
The administration said that it is returning funds the Trump administration had diverted from Department of Defense (DOD) pay, pension, and construction projects for the purpose of constructing border barriers. The Trump administration diverted a total of approximately $10 billion from DOD accounts for barrier construction, with an estimated $3.3 billion left unspent when Biden took office in January 2021.
The Biden administration also announced on April 30 that it would begin limited construction along the border to address risks associated with flooding and soil erosion. In late January, CBP had officially notified its contractors to stop all border barrier construction projects following President Biden’s January 20 executive order, which terminated the national emergency declared at the southern border by the Trump administration and directed the end of all border wall construction. The rapid freeze in construction had left levee breaches in some parts of the border in the Rio Grande Valley, leaving surrounding areas vulnerable to flooding. The Biden administration noted it would work to resolve these concerns, as well as to address a stretch of barrier near San Diego with "improper compaction of soil," but clarified that it does not intend to extend walling in any part of the border.
The Biden administration has not clarified what it intends to do with the approximately $1.4 billion in unspent funds properly allocated by Congress for border barrier construction in December 2020. The President’s January 20 executive order called for DOD, DHS, and the Office of Management and Budget (OMB) to come up with a plan by March 21 to redirect the funds, but the administration still has yet to take public action, drawing criticism from Republican lawmakers.
Legal
Third Circuit Reverses Opinion Preventing Immigration Judges from Using Administrative Closure
On May 5, the U.S. Court of Appeals for the Third Circuit ruled that immigration judges and the Board of Immigration Appeals have authority to administratively close immigration cases pending before them. The ruling, issued in Arcos Sanchez v. Attorney General, rejected former Attorney General Jeff Sessions’ 2018
opinion in Matter of Castro-Tum, which held that U.S. immigration law does not allow for the use of administrative closure. The Third Circuit joins the Fourth and Seventh Circuit in rejecting Sessions’ opinion in Castro-Tum, while the Sixth Circuit previously ruled to uphold Sessions’ opinion.
Administrative closure is a practice used by immigration judges to temporarily remove cases from their calendars and delay removal proceedings. Before Sessions’ 2018 opinion, administrative closure was a common practice used by immigration judges to better manage their dockets, particularly when a case involved an individual who was eligible for protection from deportation or who otherwise may have had a valid claim to legal status. For example, administrative closure was often used for those in the process of applying for Deferred Action for Childhood Arrivals (DACA) or who may have been eligible for a green card through marriage.
State and Local
San Diego County Votes to Provide Lawyers to Immigrants facing Removal Proceedings
On May 4, the San Diego Board of Supervisors approved a pilot program that will provide immigrants facing deportation with lawyers through the county's public defender's office. The $5 million program was approved by a 3-2 vote and will furnish legal counsel to individuals detained at the local Otay Mesa Detention Center free of charge. Proponents of the program have argued that immigrants without representation add to court backlogs and increase taxpayer detention costs during their cases.
Because immigration court proceedings are administrative, not criminal, the constitutional right to counsel does not extend to immigrants with cases in immigration court. While those in proceedings may retain representation at their own expense, the federal government does not provide them with counsel. Data shows that those who are able to find legal representation are four times more likely to win their cases.
GOVERNMENT REPORTS
This report from the Office of the Inspector General (OIG) outlines various violations of detention standards and COVID-19 procedures at an Immigration and Customs Enforcement (ICE) facility in Illinois. After inspecting the Pulaski County Jail, OIG found violations that threatened the health, safety, and rights of detainees. The findings include that the center did not enforce the use of face masks and social distancing to effectively combat the spread of COVID-19, leading to an outbreak within the facility. The Pulaski Jail also did not provide detainees with dental services nor were officials performing routine wellness checks. The facility was also found to be violating protocol by detaining migrants with significant criminal histories alongside those with no criminal history.
SPOTLIGHT ON NATIONAL IMMIGRATION FORUM RESOURCES
This explainer describes the different kinds of shelters and facilities that are currently being used to house unaccompanied children (UACs). The explainer documents the emergency facilities that have recently been opened by the Biden administration to address the increase in UACs at the border.
This fact sheet describes the security infrastructure in place at the border, the national security threat (or lack thereof) posed by arriving migrants, and policy proposals for improving border security.
This resource provides an overview of various local efforts to provide legal representation to immigrants in removal proceedings. The resource examines four different types of immigrant legal service provision programs, examines the outcomes of each, and makes a series of recommendations for future programs.
The bill would provide protection from deportation for some members of mixed-status families living in the U.S.
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*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 [email protected]. Thank you.
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