Democrats rejoice at HR6 passage, but advocates wary of criminal carve-outs—03-19-21

Immigration news, in context

This is the seventy-second edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we look at the Dream and Promise Act, which passed in the House this week.

  • In Under the Radar, we discuss why thousands of unaccompanied children are being kept in Border Patrol custody in excess of the legal limit.

The Big Picture

The news: The latest version of the Dream and Promise Act, current H.R. 6, was passed by the House yesterday. Not to be confused with the more expansive, flagship U.S. Citizenship Act (which we covered here), this is essentially an updated version of the Dream Act that has undergone modifications and re-introductions since 2001. As it heads to the Senate, some advocates have decried carve-outs for people with criminal contact.

What’s happening?

The Dream Act writ large is a rare piece of federal immigraiton legislation that most somewhat politically engaged people already know something about, partly owing to the ubiquity of the Dreamer as a figure in political conversations and media coverage and the public’s steady, strong support for a path to citizenship for this group. The version approved 228-197 by the House yesterday is substantially similar to a version passed in 2019, with a few tweaks here and there.

In general, it provides enforcement relief and a path to residency and citizenship for four groups. The first are undocumented Dreamers, i.e. people who entered the country as minors. This is the population most closely associated with the legislation, who still exist in the popular imagination as kids even though the first group, who pushed for the legislation twenty years ago, remain in limbo into their late 30s and early 40s. A subset of this group has been protected and granted work authorization by the Deferred Action for Childhood Arrivals (DACA) program, though is a discretionary executive program and not codified.

The criteria in the bill, however, is much more expansive, with the cutoff for eligibility sitting at January 1, 2021, meaning that people who unlawfully entered the country as minors as recently as last year could qualify. There are the standard other requirements, including completion or enrollment in high school or a GED or equivalent program, passing a background check, and not having been convicted of certain offenses (more on that later).

One new addition to the bill is the inclusion of the often-overlooked group of so-called “legal Dreamers,” who are people living in the country legally through visas derived from a parent or guardian’s status as a temporary worker. Dependents are typically eligible for these visas until they turn 21, and as an unintended consequence of the endless backlogs for permanent residency created by annual per-country green card caps, many end up aging out of eligibility despite having lived in the country legally for years or even decades. Most are the children of Indian or Chinese workers with visas like the H-1B. They would have to essentially meet the same criteria as the undocumented Dreamers.

The very recent cutoff date means that, according to Migration Policy Institute estimates, about 2.7 million undocumented Dreamers and 190,000 legal Dreamers would be immediately eligible for conditional permanent residence, which is what the bill would offer to these groups. Functionally, it would be the same as full permanent residence, except it is offered for a period of ten years. Recipients would have to jump through additional hoops to receive full residence, including either two years of military service with an honorable discharge if discharged; a degree or at least two years higher or technical education; or have been employed for three years and 75 percent of the total time they’ve had employment authorization. Once they become full residents, they could apply for citizenship after five years.

The other two groups that would receive protections are recipients of Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). We’ve explored TPS more in depth before, but essentially it’s a program created by Congress to allow people from countries that have been affected by natural or manmade disasters to be shielded from deportation and receive work authorization while conditions in their countries of origin remain dangerous (DED is very similar, and currently only includes the country of Liberia). Unlike DACA, TPS is explicitly codified in the law, but the executive retains a lot of discretion on when to designate countries and when to remove them. Trump tried to terminate several TPS designations, efforts that were tied up in court and then reversed by Biden, who has added Venezuela and Burma to the status. 

TPS has long been a bit of a conundrum for pro-immigrant lawmakers, as its ostensibly temporary nature means it doesn’t provide a path to permanent status, even after people have lived and worked under TPS for years. Honduras and Nicaragua, for example, have had TPS since 1999. Somalia, since 1991. The bill would allow people who had or were eligible for TPS and DED since September 17, 2017 and January 1, 2021, respectively, as well as been present in the country for a period of three years prior to the law’s enactment, to cancel removal proceedings and obtain full permanent residency directly. MPI estimates almost 400,000 people would qualify.

The bill would additionally require the Homeland Security secretary to better explain the decision to terminate TPS status going forward. Assorted other provisions would enable the government to provide targeted waivers of inadmissibility for humanitarian reasons, let people in removal proceedings apply for relief if they seem like they may be eligible, and provide grants to nonprofits that could assist in screening people for eligibility, among others.

Nine Republicans voted in favor of the bill, with the majority opposing it on the expected anti-“amnesty” arguments. More interestingly, the bill caught flack from progessive groups and legislators for the criminal bars it retained from its last version. As a coalition of immigration organizations wrote in a letter to lawmakers, “Any criminal bars graft the racism of the criminal legal system onto the immigration system.” The bill as written would maintain grounds of inadmissibility for people who had, for example, ever been convicted of any drug offence, as well as co-called crimes of “moral turpitude,” an ill-defined concept that can include anything from rape and murder to fraud.

The bill would also incorporate deportability standards to bar people from accessing protections, such as the puzzlingly named “aggravated felonies” that don’t actually have to be felony crimes. On top of all that, the bill adds its own restrictions, such as having ever been convicted of a felony or any three misdemeanors. A “secondary review” process would give the government the ability to flag applications for supposed public safety risks, including recorded gang affiliation. Anyone who’s spent five minutes studying the workings of local law enforcement gang databases will know that they’re laughably shoddy, but can trip up the possibility of status for someone who was never so much as charged with a crime.

How we got here

The first iteration of the DREAM Act was introduced in 2001. The version introduced in the House was called the Immigrant Children’s Educational Advancement and Dropout Prevention Act, which was later amended to a slightly narrower bill called the Student Adjustment Act. The goal, at the time, was to shield certain undocumented youth from deportation and provide a path to citizenship. The Senate version of the bill, the Development, Relief, and Education for Alien Minors Act, was introduced by Sen. Dick Durbin and then-Senator Orin Hatch. 

That version of the DREAM Act would have granted permanent residency to anyone who was at least 12 years old at the time the act went into effect, had applied before turning 21, had a high school degree or equivalent, had been in the U.S. for at least five years when the act went into effect, exhibited “good moral character,” and wasn’t inadmissible or deportable under criminal or national security grounds of the Immigration and Nationality Act. 

It’s worth emphasizing how much the discourse on immigration has shifted in just two decades; back in 2001, especially before 9/11, there was a semi-bipartisan consensus that having a massive undocumented underclass didn’t really benefit anyone. The 9/11 attacks changed that—suddenly, immigration enforcement was conflated with national security, a new policy outlook enshrined in the creation of the Department of Homeland Security. DHS replaced the former Immigration and Naturalization Service, which had handled immigration matters since the 1930s. 

In the years after the creation of DHS, there was a renewed push to get the DREAM Act—or some version of it—through Congress. The bill was included as part of larger, more comprehensive bills in 2006 and 2007, including the Department of Defense Authorization Bill of 2008. Throughout this process, changes were made to make the bill more appealing to various political stakeholders; in general, it was made more restrictive.

A second, amended version of the DREAM Act was introduced in 2007, but it failed to surpass the 60 votes needed to avoid a filibuster. Some of the inter-party fissures with regards to immigration were starting to crystallize: the bill’s opponents, mostly Republicans, argued it would encourage more unauthorized migration. A bipartisan group of senators introduced another amended version of the DREAM Act in 2009, with changes intended to make it even more palatable to its opponents. 

This version of the DREAM Act would have granted young undocumented who met certain criteria, including having a high school diploma or equivalent and passing criminal background checks, six years of conditional permanent resident status. Despite the bill’s narrower scope and stringent requirements, its opponents maintained that the bill would encourage more people to migrate to the U.S. Jeff Sessions, a senator at the time, decried the bill as “amnesty” that would “signal to the world that we’re not serious about the enforcement of our laws or our borders.” In 2010, the bill once again failed to hit the 60 senate votes needed to avoid a filibuster; it fell five votes short of 60, and five Democrats voted against it.

Yet another version of the DREAM Act was introduced in 2011. That version of the bill would have granted conditional permanent residency to anyone who entered the U.S. before the age of 15, exhibited “good moral character” since entering the country, was not inadmissible on criminal or national security grounds, had not persecuted or assisted in the persecution of people based on protected categories such as race or membership in a particular social group, hadn’t been convicted of certain federal or state crimes, had either obtained a high school diploma or equivalent, and was 35 or younger when the act went into effect.

By that point, the discourse on immigration had become even more polarized—some of the bill’s former Republican proponents, including John McCain and Lindsey Graham, said they’d vote against it. That version also died in the Senate. In 2012, in response to protests led by undocumented youth at Obama campaign field offices, the Obama administration issued Deferred Action for Childhood Arrivals, a stopgap measure that would shield undocumented youth from deportation but wouldn’t grant them any permanent legal status.

Like DACA, TPS is another liminal status; it’s not permanent, but it lets recipients live and work in the country without the constant threat of deportation. This doesn’t mean that people with DACA and TPS can’t be deported—anyone who isn’t a citizen is technically subject to deportation—but that there are fewer opportunities for such deportations to happen. If, for example, someone with DACA were to be charged with a crime that would deem them deportable, their status in the country would be in jeopardy; the same goes for people with TPS, visas, or permanent residency. What DACA and TPS do protect against is deportations solely based on a lack of legal status.

Unlike DACA, TPS is only available to people from certain countries, and its authorization is typically related to some sort of catastrophe such as armed conflict or natural disaster. For example, certain people from El Salvador have been eligible for TPS since 2001 due to a series of earthquakes in the country. TPS is granted to people who are already in the U.S. at the time of the conflict or event that triggers it; like DACA, its goal is not to encourage more migration but to grant some semblance of status to those already in the U.S. who meet certain criteria.

The Dream and Promise Act of 2019 was a shift back towards more expansive immigration legislation. After almost two decades of narrower and narrower DREAM Acts, the 2019 bill not only covered people with DACA, but also those with TPS and DED. In total, it would have granted legal status to about 2.5 million people, with different timelines and requirements depending on current status. For example, those with TPS and DED would immediately get green cards, while those with DACA would have to go through a longer process and would first have conditional status. 

The more expansive nature of the Dream and Promise Act points to a shift in immigration discourse that began shortly after Trump took office. Trump’s restrictive immigration policies perversely created an opportunity for longtime immigration activists to encourage the new “resistance” coalition to adopt a more open stance with regards to immigration. That’s not to say that the backlash against Trump has led to open borders policies; Democrats are still largely of the mind that, while some immigrants already in the U.S. should be granted legal status, more migration is untenable. The Biden administration’s U.S. Citizenship Act is a good example of this. While it would create a path to citizenship for millions of people, it also includes funding to curb migration from Central America.

What’s next?

The legislation—along with another bill focused on pathways to residency for farmworkers—now moves to the Senate, where (surprise!) it faces an uphill battle to passage, needing 10 Republican senators to join (or for the Democrats to deal with the filibuster). Like the more ambitious U.S. Citizenship Act, it may end up getting broken down into smaller pieces that the Democrats try to pass individually. As mentioned above, the path to citizenship in general is popular among voters, with the path to citizenship for Dreamers especially so.

It’s hardly imaginable that any type of bill to grant status to the undocumented would be popular among Republicans, and the 2021 cutoff date might be a particular point of contention. No doubt that they will claim this serves as an incentive for migrants to continue the alleged border “surge.” Still, some of the opposition might continue to come from the left flank, as advocates fulminate over yet another legislative proposal that places stock in a criminal justice system that many of the legislators themselves will agree is deeply procedurally flawed and racist.

There’s no easy balance to strike here, as a legalization bill that did not take into account criminal history at all would be easy pickings for the conservative media outrage machine and runs the risk of somewhat souring public support in a way that could spook the notoriously jittery Senate Democrats. Still, the bars as they currently exist are absurd, and can condemn longtime residents to a type of forever statelessness for activity that would warrant barely a slap on the wrist for a citizen counterpart.

Despite the advocates’ horror, the criminal bars have received relatively scant attention in the public debate, but they may take on greater prominence as debate gets started in the Senate. These bills may ultimately provide an opportunity not only to build paths to legalization, but to reevaluate the way that the language of criminality and the good immigrant-bad immigrant dichotomy looms large over the immigration system.

Under the Radar

Thousands of children held in Border Patrol custody beyond the legal limit

More than 4,200 unaccompanied migrant children were being held in Border Patrol holding facilities as of last Sunday, according to government documents reviewed by CBS News. Of those children, almost 3,000 had been in Border Patrol facilities for more than 72 hours, the legal limit after which CBP is supposed to transfer children to shelters operated by the Office of Refugee Resettlement (ORR). According to the documents, unaccompanied migrant children are spending an average of 117 hours in Border Patrol holding stations before being transferred to ORR shelters.

Lawyers who interviewed children in Border Patrol custody told CBS News that the conditions there were deplorable; some reported only showering once a week and not being able to call their relatives. 

The overcrowding at Border Patrol facilities appears to be caused by a combination of two factors: a reduction in bedspace at ORR shelters due to coronavirus measures, and the fact that for several months now, unaccompanied children have not been subject to the Title 42 order shutting down the border to unauthorized migrants. In other words, because the government can no longer expel unaccompanied children, more children have ended up in ORR shelters. From there, the government and shelter staff are supposed to work to reunite children with their sponsors in the U.S—usually parents or other relatives who are often undocumented. 

This is one of the reasons the Biden administration has reopened unlicensed “influx” shelters. But adding more beds to ORR’s shelter network—especially in unlicensed shelters that are often located in remote areas and lack oversight—is a temporary solution. The real challenge is speeding up the reunification process, which would then free up space in licensed shelters more quickly.