AILA Policy Brief Trump Shutdown Bill Full of Extreme Restrictionist Provisions

January 22, 2019

On January 22, 2019, Senate Republicans released a new spending bill that was written to reflect
President Trump’s January 19 speech outlining a proposal to end the shutdown. The “End the Shutdown
and Secure the Border Act” bill contains extreme provisions and should be rejected outright as
representing hardline restrictionist views, rather than a genuine attempt at compromise. Among other
provisions, the bill would provide fragile protections for a narrow segment of DACA and TPS holders,
ramp up funding for interior  and border enforcement, and all but eliminate asylum for minors from
Central America. The bill:

Fails to Include Real Protections for Dreamers: The bill would protect a fraction of all Dreamers and
would not provide permanent protection from deportation. Instead, it would allow people who currently
have DACA to apply for a 3-year, one-time temporary status subject to new eligibility standards. Because
of newly added restrictions in the text, the number of Dreamers who qualify for protection under the bill
would actually be smaller than the number of people who are currently protected. The bill would also
more than double the current fee.

Fails to Protect All TPS holders: The bill would only protect individuals with Temporary Protected
Status (TPS) from Honduras, Nicaragua, El Salvador, and Haiti. The individuals in those four countries
would be able to apply for a 3-year, one-time temporary status. The application fee would be doubled.
The bill also makes changes to the eligibility provisions, again reducing the overall number of people who
would qualify for protection compared to today. It does not include protections for people with Deferred
Enforced Departure (DED) from Liberia or those with TPS from Nepal, Sudan, South Sudan, Yemen,
Somalia, and Syria.

Adds New Restrictions to DACA and TPS, Increasing the Number of People Who Could Be
Deported: The bill contains additional restrictions on DACA and TPS and would prevent anyone who
has been ordered removed in absentia from qualifying for protection, no matter how long ago the order
was issued. That means that if a child missed a court date and was ordered deported, they would not be
able to qualify for DACA or TPS relief. DACA and TPS grantees would also be required to earn an
income at 125% of the poverty level or be enrolled in school.

Virtually Eliminates the Availability of Future TPS Protections: The bill would rewrite current law to
restrict eligibility for future TPS designations to those who are lawfully present. Thus, if someone is
undocumented when their home country suffers a natural disaster or armed conflict, they will not be
eligible if TPS were designated.

Bans Asylum for All Central American Minors and Eviscerates the Trafficking Victims Protection
Reauthorization Act for Unaccompanied Kids: Nationals of Honduras, Guatemala, and El Salvador
who are under the age of 18 would be categorically barred from applying for asylum at the border or
within the United States if they were outside of the country at the time of enactment. The bill would
remove TVPRA protections and authorize the government to forcibly return unaccompanied children if
they request asylum unless it is “more probable than not” that they would win asylum or trafficking
protections. All arriving children could be removed quickly without review except in extremely limited,
exceptional cases.

Creates a Sham CAM Program The only way a Central American minor can qualify for asylum would
be through a new Central American Minors (CAM) program that would be established within eight
months of enactment. To qualify, children would have to have a parent or guardian in the U.S. and no
more than 15,000 minors could receive asylum. Most concerning, because Central American minors
arriving to the U.S. would immediately become ineligible for asylum, the program essentially eliminates
all asylum protections for these minors for at least eight months. Children in the program would be
subject to a non-reviewable decision by DHS and would never see an immigration judge.

Builds the Wall and Creates a Slush Fund for Enforcement: The bill would authorize $5.7 billion for
President Trump’s border wall and add hundreds of millions of dollars in additional enforcement funding
that can be used for almost any kind of enforcement. Some of these funds would come from a new $500
fee imposed on each applicant for DACA or TPS relief, which would be in addition to the full cost of
adjudicating the application.

Dramatically Increases the Number of ICE Detention Beds: The bill includes a 20% increase in funds
for ICE detention and removal – from $4.11 billion to $4.99 billion. This new funding allows ICE to jail
on average 52,000 people a day, nearly 12,000 more people than current funding levels.

Hires New Border Patrol and ICE Agents. The bill includes funding for 750 Border Patrol agents and
2,000 ICE agents.

Makes Permanent and Reprehensible Changes Aimed at Reducing Asylum Grants: These changes
include:

  • Creating a new crime punishable by up to five years in prison for making false statements on the
    application.
  • Expanding the definition of a frivolous asylum application and preventing attorneys from
    objecting or disputing claims that the application was frivolous.
  • Declaring all asylum applications that are “clearly foreclosed” such as applications filed after the
    one-year asylum deadline are “frivolous.”
  • Requiring applicants to waive their rights and take voluntary departure if they decide to withdraw
    their asylum application, or risk having their application deemed frivolous.

Hires Additional Immigration Judges: The bill includes $563 million in funding for the immigration
court that would enable the hiring of 75 more immigration judge teams and upgrades to an electronic case
management system. The bill does not include any reforms necessary to improve the court’s ability to
ensure fair and efficient review of all cases. Despite decrying the extensive case backlog, the Trump
administration has hampered the immigration courts by denying immigration judges the use of case
management tools and by reopening 350,000 low priority cases.

 

AILA Doc. No. 19012241.

 

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