Legislative Update: 6/27/2017
Yuge Win: Supreme Court Reinstates Part of Travel Freeze, Will Hear the Case this Fall
By: Robert Law
The U.S. Supreme Court handed the Trump administration a significant legal victory yesterday in the dispute over its national security executive order. Since February, activist judges in the Ninth and Fourth Circuits have abandoned their proper role in our system of government by blocking the temporary travel freeze portions of the “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order simply because they disagree with the policy. (See FAIR Legislative Update, May 30, 2017; FAIR Legislative Update, Feb. 14, 2017) Finally applying the law properly, the Supreme Court reversed a portion of the lower courts’ injunctions while agreeing to hear the remainder of the case during the fall term. (Law360, June 26, 2017)
The high court’s decision to allow part of the travel freeze to go into effect underscores how the lower courts were motivated by politics rather than the law—an extreme disregard for the oath judges take to be neutral arbiters. Specifically, the Supreme Court is allowing the Trump administration to impose a travel freeze on foreign nationals who “lack any bona fide relationship with a person or entity” in the U.S. (Law360, June 26, 2017) The high court reasoned that deny entry to a foreign national with no relationship or connection to the U.S. “does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship for the foreign national himself. (See The Hill, June 26, 2017) Actually relying on past precedent (which the Fourth and Ninth Circuits failed to do), the Supreme Court said preserving national security is “an urgent objective of the highest order.” (Id.)(emphasis added) “To prevent the government from pursing that objective by enforcing [the travel freeze] against foreign nationals unconnected to the United States would appreciably injure its interests without alleviating obvious hardship to anyone else.” (Id.) According, the high court only kept the injunction in place “with respect to parties similarly situated” to the plaintiffs who originally challenged the executive order. (Id.) “In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bone fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2,” the Court wrote. (Id.)(emphasis added)
The portion of the travel freeze the Supreme Court authorized will be effective within 72 hours. According to the unsigned order, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch supported lifting the entire travel freeze. (See The Hill, June 26, 2017) A unanimous Supreme Court supported the partial reinstatement while at least four voted in favor of hearing the Trump administration's appeal on the remainder of the case. (Id.)
DHS to Expand Controversial H-2B Visa Program, Breaking Trump Campaign Promise
By: RJ Hauman
The Trump administration has decided to expand the controversial H-2B visa program, the Department of Homeland Security (DHS) announced last week. (ABC News, June 21, 2017). DHS spokesperson David Lapan said Homeland Security Secretary John Kelly has yet to decide how many additional H-2B visas will be made available, but that the number should be set soon. (Id.) Lapan said the department expects to start issuing visas as soon as late July, setting the stage for the betrayal of a key Trump campaign promise—protecting American workers from cheaper foreign competition. (Id.)
In early May, at the behest of the business lobby, Congress gave Kelly and Labor Secretary Alex Acosta the power to more than double the number of H-2B visas issued this fiscal year. (See FAIR Legislative Update, May 2, 2017) Shortly thereafter, Kelly indicated that he was receiving pressure from lawmakers and stakeholders on both sides of the issue, but hinted an increase was likely. (See FAIR Legislative Update, May 30, 2017) “This is one of those things I wish I didn’t have discretion,” Kelly told the Senate Appropriations Committee. (Id.) “We’ll likely increase the numbers for this year, perhaps not by the entire number I’m authorized,” Kelly added at the time. (Id.)
The H-2B nonimmigrant visa program allows U.S. employers who meet specific regulatory requirements to bring low-skilled foreign workers to the United States to fill temporary non-agricultural jobs. (USCIS H-2B Program Fact Sheet) There is a cap on the total number of foreign workers who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. (Id.) Under the Immigration and Nationality Act, Congress set the H-2B cap at 66,000 workers per fiscal year. (INA § 214(g)(1)(B)) However, last month’s $1.1 trillion omnibus spending bill gave Secretaries Kelly and Acosta the authority to ignore this cap and increase the number of low skilled foreign workers admitted by “the highest number” of H-2B nonimmigrants who participated in the H-2B returning worker exemption. (FY 2017 Omnibus, Sec. 543) As a reminder, in December 2015, House Speaker Paul Ryan snuck into the FY 2016 omnibus a provision that exempted from the H-2B cap all low skilled workers admitted between 2013 and 2015. (See FAIR Legislative Update, Dec. 22, 2015) There is no reliable data on the number of H-2B workers who took advantage of the returning worker exemption. It is possible that this provision will allow 66,000 additional cheap foreign workers to flood the labor market through the end of September—further suppressing blue-collar wages and taking away opportunities from Americans trying to get back into the labor force.
FAIR criticized the announcement to further flood the labor market with foreign workers. “The administration's decision to exceed the 66,000 cap not only undermines struggling American workers, but betrays unequivocal promises President Trump made in his campaign,” FAIR President Dan Stein charged. (FAIR Press Release, June 22, 2017) “In President Trump's own words, ‘the influx of foreign workers holds down salaries, keeps unemployment high, and makes it difficult for poor and working class Americans—including immigrants themselves and their children—to earn a middle class wage,’” Stein added. (Id.)
FAIR’s June 21 letter to Secretary Kelly urging against an H-2B visa increase can be found here.
Inspector General Finds No Issues at Detention Centers
By: Robert Law
The Department of Homeland Security (DHS) Inspector General released a report on June 2 that found “nothing” wrong in three family detention facilities it inspected. (Washington Examiner, June 19, 2017) The Inspector General initiated the investigation following repeated claims of abuse by illegal alien advocacy groups representing detainees at various facilities. (Id.)
The Inspector General investigated two facilities in Texas: the South Texas Family Residential Center in Dilley and the Karnes County Residential Center in Karnes, and one center in Pennsylvania: the Berks Family Residential Center. (IG Report, June 2, 2017) In total, these centers are intended to house over 3,300 illegal aliens. (Id.) U.S. Immigration and Customs Enforcement (ICE) opened the two Texas facilities in 2014 in response of the surge of unaccompanied alien minors (UAMs) and family units from Central America across the southern border. (Id.) The family detention centers are used to provide medical care, nutrition, legal access, and educational services to illegal alien families awaiting immigration proceedings. (Id.)
The Inspector General determined the detention centers met or exceeded the government’s standards after conducting three surprise audits of the facilities. (Id.) To conduct the surprise inspections, the report noted that the Inspector General:
- Inspected all areas used by detainees, including intake processing areas; medical facilities; kitchens and dining facilities; residential areas; legal services areas; classrooms; recreational facilities; day care; and barber shops;
- Ensured facilities’ compliance with key health, safety, and welfare requirements of ICE’s Family Residential Standards on classification and searches, use of force and restraints, medical care, mental health care, educational services, staffing, training, medical and nonmedical grievances, and access to translation and interpretation;
- Reviewed the welfare of a sample of detainees in ICE’s detention database who appeared potentially vulnerable;
- Evaluated staff training on and compliance with federal law and regulations, as well as staff’s knowledge about reporting and documenting procedures for allegations and complaints;
- Evaluated facility security, including the operation of security cameras; and
- Examined medical files, educational files, and grievance logs and other files. (Id.)
“Nothing came to our attention that warranted serious concerns about the health, safety, or welfare of the detained families. Specifically, we did not observe any conditions or actions that represented an immediate, unaddressed risk or an egregious violation of ICE's Family Residential Standards,” officials stated in the report. (Id.)
A spokesperson for ICE stated the agency was pleased with report’s findings. (San Antonio Express News, June 9, 2017) “The inspector general stated that contrary to the complaints filed by various immigrant rights advocate organizations, ICE addressed satisfactorily the inherent challenges of providing medical care, language services and ensuring the safety of families in detention,” the spokesperson said. (Id.) “Currently ICE has no plans of making any changes to its family detention centers,” he added. (Id.)
FAIR urges all of its members to contact their Congress members and urge them to support the Protection of Children Act of 2017 that closes the loopholes in law that prevent the quick removal of UAMs from Central America.
DOJ Files Statement to Support Texas’ Anti-Sanctuary Legislation
By: Shari Rendall
Last week, the U.S. Department of Justice (DOJ) intervened in the lawsuit opposing Texas Senate Bill 4 (SB 4) filed by several cities against the State. (See DOJ brief, June 23, 2017) DOJ says it is “participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nation’s immigration laws.” (See DOJ Press Statement, June 23, 2017)
Just one day after Governor Greg Abbott signed the bill into law, the cities of El Cenizo, San Antonio, Austin, Dallas, El Paso County and Houston filed the lawsuit against SB 4. (The Texas Tribune, June 23, 2017) In their court filings the cities arguing that it violates the Constitution’s equal protection and free speech requirements. (Id.) They also allege that it violates the Supremacy Clause. (Id.)
The bill’s opponents also argue that SB 4 puts Hispanics in the crosshairs of law enforcement. Robert Flores, Commander with El Paso County Sheriff Office, says that SB 4 is “an antiquated philosophy using local officers to enforce federal law.” (KVIA News, May 22, 2017) However, nothing in SB 4 actually changes what law enforcement is able to carry out already. Rather, SB 4 prohibits sanctuary policies in the state of Texas, ensuring a fluid and free flow of information between state and local police and federal immigration officials. (See FAIR Legislative Update, May 9, 2017) Specifically, it prohibits state and local entities from adopting, enforcing, or endorsing policies that prohibit or materially limit the enforcement of immigration laws, as well as ensuring that local law enforcement officials comply with immigration detainers. (SB 4) If localities or colleges fail to comply with SB 4 and implement sanctuary policies, they may be subject to a fine, between $1,000 and $25,500 each day the policy is in place. (Id.)
Texas Attorney General Ken Paxton welcomes the administration’s support for SB 4. “It’s reassuring to know that the Trump administration believes in upholding the Constitution and defending the rule of law, and I’m grateful for the DOJ’s assistance in helping my office defend the lawful Senate Bill 4,” he said. (See Texas AG Paxton Statement, June 23, 2017) “Enforcing immigration law helps prevent dangerous criminals from being released into our communities. We look forward to working with DOJ lawyers to see that Senate Bill 4 is fully honored in Texas.” (Id.)
Yesterday, there was a hearing on the motion for a preliminary injunction, which could block the implementation of SB 4 until the case is decided. (The Texas Tribune, June 23, 2017) Judge Orlando Garcia, a Clinton appointee, presided over it.
FAIR will provide additional updates as this case winds its way through the courts.