Dems vote on limited immigration measures as DACA faces legal jeopardy—07-15-22
Immigration news, in context
This is the 129th 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 examine the latest legislative efforts around immigration reform.
In Under the Radar, we discuss at right-wing commentators’ attempts to make the rape of a 10-year-old girl into an immigration issue.
In Next Destination, we look at the current landscape around Remain in Mexico after the SCOTUS decision.
The Big Picture
The news: After a lethargic period in Democrats’ attempts to pass immigration measures through Congress, they are making a push to get a narrow set of provisions through as part of the must-pass National Defense Authorization Act, including some protections for so-called documented Dreamers. Meanwhile, DACA recipients are left facing uncertain prospects as the Fifth Circuit weighs the fate of the program.
What’s happening?
The latest credible attempt to get immigration reform through Congress were the various hapless efforts last year to attach it to the budget reconciliation bill. That started off with a robust and full regularization scheme for millions of people but was quickly opposed by Senate Parliamentarian (and former immigration prosecutor) Elizabeth MacDonough. Narrower and less effective plans B and C were also laid waste by MacDonough’s iron fist, and though Senate Democrats had the full authority to disregard her objections completely, they of course did not.
While those efforts were relatively wide-reaching, calling them immigration “reform” is itself a bit of a misnomer, as they attempted to create paths to regularization but would not have fundamentally shifted anything about the way that the underlying systems work. (Although, using this criteria, we’ve gone over 30 years without any form of significant immigration reform.) As immigration debates have bogged down into a sort of stultified hyper-partisanship, efforts to actually change the system at the root have become relatively rare and generally limited, despite the plain fact that everyone hates the way the system currently functions, albeit for different reasons.
As Congress has been undergoing the annual prostration at the altar of war (read: passing the National Defense Authorization Act, which this year seems poised to balloon military spending $37 billion over what Biden had requested, which was already $30 billion more than the amount allocated for fiscal 2021), Democrats attempted to introduce some immigration measures. Mainly, they sought to have certain recipients of doctoral-level STEM degrees working in what were deemed critical industries exempted from annual green card caps; allow the admissions of STEM professionals working on a narrow set of national security-involved technologies as special immigrants; and to provide protections for so-called documented Dreamers, the children of work visa holders who are at risk of aging out of eligibility.
In the grand scheme of things, these are relatively small-bore proposals, certainly much less ambitious than the efforts around the reconciliation. Particularly in the case of the scientist special immigrant admissions and the STEM immigrant visa shift, the real number of people who would be impacted would probably be in the single thousands annually, a rounding error in relation to the roughly one million people who receive permanent residence in the U.S. every year. Still, only the former plan survived, with the STEM PhD initiative axed for supposed rules violations around cost.
The House also passed the documented Dreamers amendment on Thursday, which would have a much more significant impact (though still far narrower than the regularization schemes contemplated in the reconciliation). This population had been part of earlier regularization efforts, though generally receive less attention than their undocumented counterparts. Essentially, they are the children typically of H-1B work visa recipients who receive H-4 dependent visas—designed to allow workers to bring family members with them—and are at risk of aging out of eligibility for those visas upon turning 21, often while waiting for an immigration petition to be completed.
The case of documented Dreamers is a problem that, like many in our convoluted and haphazardly constructed immigration system, is downstream of circumstances that lawmakers initially failed to predict or account for. Specifically, it flows from the fact that Congress created a seven percent cap on the number of the available 140,000 employment-based green cards that can go to nationals of any one country per year. Over time, as countries like India and China have become particularly dominant among the workforce of highly-educated foreign employees, the cap has left hundreds of thousands who are technically eligible to receive residency in interminable backlogs that can stretch for years or decades.
The primary visa holders and their spouses can at least continuously renew their status as they wait, but their children cannot. This has left over 200,000 children and young adults, many of whom have resided in the U.S. legally practically their whole lives, on the verge of losing status. Unlike undocumented Dreamers, they can at least attempt to switch to F-1 student visas or some sort of work visa of their own, but this is an uncertain and onerous process, and takes them out of the path to residency they were already on. The amendment features a number of technical tweaks that deal with several distinct situations, but at base it aims to legally freeze the age of applicants at the moment a residency application is filed, allowing them to stay on the same track and continue to renew their status along with their parents. After years of effort, the amendment seems on track to stay in the final bill.
As for their undocumented counterparts, things are looking less rosy. There’s no current plausible legislative pathway to protections. Despite the political popularity of providing a path to residency to unauthorized immigrants, it is extremely unlikely that a standalone bill that would do so even specifically for the population currently covered by DACA would break through the Senate filibuster. That leaves it as something that can only come to fruition as part of larger or must-pass bills, and it wasn’t in the cards for this NDAA. It likely won’t materialize again at least until the next reconciliation.
In the meantime, the DACA program as a whole remains on very shaky ground. Last year, Trump-appointed federal District Judge Andrew Hanen of Texas issued an injunction and vacatur maintaining that the program was unlawful and violated the Administrative Procedure Act, as the Obama administration ostensibly did not go through the proper process to implement it. The ruling stopped the current administration from accepting and processing new DACA applications, but allowed it to maintain the existing program and process renewals for those already in the program.
Homeland Security promptly tried again, launching another rulemaking process to create an updated DACA program that would pass muster with the judge and appealing his decision. This week, a panel of the Fifth Circuit heard oral arguments in that appeal, in which the federal government is maintaining that the states, of which Texas is the lead, do not have standing to sue because they cannot point to a concrete injury. For their part, the states are going with the tried-and-true strategy of suggesting that the presence of immigrants is somehow a drain on their resources and a management and public safety challenge.
How we got here
Despite decades of campaign promises, we haven’t had anything close to “comprehensive immigration reform” since the 1986 Immigration Reform and Control Act (IRCA). Signed into law by President Ronald Reagan (like we said, immigration has gotten hyper-polarized), IRCA provided a path to citizenship for more than 2.7 million people. In exchange, it also made it illegal for anyone to knowingly hire an undocumented immigrant and included more funding for the Immigration and Naturalization Service (a precursor to ICE, CBP, and USCIS), the Executive Office for Immigration Review, and Border Patrol.
The main problem with IRCA was that it was a one-time solution to a structural problem. It didn’t create new pathways for legal migration, nor did it expand existing per-country immigrant visa allocations. (There has been no meaningful change in this arena since the 1965 Hart-Celler Act, which overturned the per-country quota-based system that had been in place since the 1920s.) IRCA was a godsend for people who were in the country without authorization and could meet the criteria to regularize their status; it did nothing to help the tens of millions of others who wanted to migrate to the U.S. and had no legal way to do so. Fast-forward to today and the undocumented population has soared to an estimated 11 million, 653,560 of whom are recipients of Deferred Action for Childhood Arrivals (DACA).
DACA itself was the product of a failed attempt at immigration reform. The first effort, the Immigrant Children's Educational Advancement and Dropout Prevention Act, was introduced in the House in 2001 and was later amended to a narrower bill, the Student Adjustment Act. Senators Dick Durbin and Orrin Hatch introduced their own version of the bill in the Senate, called the Development, Relief, and Education for Alien Minors Act. The DREAM Act would have granted permanent residency to undocumented immigrants who were at least 12 years old when it was signed into law, applied for adjustment of status 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 weren’t inadmissible or deportable under criminal or national security grounds of the Immigration and Nationality Act. It stalled after 9/11, when Congress’s focus shifted from immigration reform to immigration enforcement in the name of national security.
Subsequent immigration reform efforts in 2006 and 2007 went nowhere; both bills included the text of the DREAM Act, and both failed. In 2009, a bipartisan group of senators re-introduced the act, but it failed yet another time; a renewed effort in 2011 led to yet another failure. As the years passed, immigration slowly became a more polarizing issue. The 2011 version of the DREAM Act was defeated not only by Republicans—some of whom had voted for the DREAM Act in the past—but also by a small group of conservative Democrats.
The Obama administration created DACA in response to these successive legislative failures. The idea was to create a stopgap program that could provide would-be beneficiaries of the DREAM Act with work authorization and shield them from deportation until Congress could get an actual piece of legislation passed. The former happened; the latter never did. (A similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents, was thwarted by a lawsuit.)
Biden aides sent a draft of an immigration reform bill to Congress shortly after he was inaugurated; Congressional Democrats introduced a version of that bill in February. The legislation was divided into several parts, including:
The “Earned Path to Citizenship,” which would regularize the status of undocumented immigrants who met certain criteria
“Addressing the Root Causes of Migration,” which focused on reducing migration from Central America by reducing push factors, while building the infrastructure to process refugee and asylum claims within Central America
“Reform of the Immigrant Visa System,” which included several provisions, including repealing the three- and ten-year bars on re-entry for deportees, cutting down on the immigration case backlog, tweaking per-country caps on immigrant visas, expanding diversity visas and creating new visa categories
“Immigration Courts and Interior Enforcement,” which focused on allocating funds to expand the immigration court system and hire more judges, raising the limit on U visas (visas for victims of certain crimes who cooperate with law enforcement during criminal investigations), and making other change to the adjudication system
“Employment Protections,” a fairly self-explanatory category
That bill was dead in the water, but it was the most expansive version of immigration reform we’ve seen yet—albeit one that also sought to reduce migration rather than accepting it as a reality and allocated funds for border security measures that have been proven not to curb unauthorized migration. Subsequent efforts to regularize unauthorized immigrants through reconciliation all failed, mostly thanks to the intervention of Senate Parliamentarian Elizabeth MacDonough, a former immigration prosecutor. (We should note that the Senate doesn’t have to listen to the parliamentarian and could overrule her at any time, yet here we are.)
What’s next?
The Fifth Circuit panel that heard the DACA appeal includes two Trump-appointed judges, but their line of questioning during the oral arguments largely focused on the standing that the states might or might not have to bring such a challenge, which could be a good sign for the outcome. In any case, whichever party ends up losing will probably try to keep appealing the decision up to the Supreme Court, which would have the option to hear the case or send it back.
There’s also the wild card that the Supreme Court, in the recent decision on the Remain in Mexico case, definitively ruled that lower courts cannot enjoin or restrain certain types of immigration and border enforcement policies, under which DACA could well fall. If the appeals court accepts those arguments, it could wholly invalidate Hanen’s earlier injunction. In the case that a court actually goes further and orders the full termination of the DACA program, it’s not clear what would happen. There’s no real plan B here, unless the administration tried to take the legally dubious step of granting parole to all former DACA recipients.
From a legislative standpoint, the documented Dreamers provision seems like a lock for approval, which would allow hundreds of thousands of young people to remain in a process for residency. It’s not looking like we’re going to get anything significant, especially as Republicans fixate on immigration hysteria as a primary strategy heading into the midterms. While whatever situation might be going on at the border (which in itself is being overblown and misrepresented) has little to do with a large population of people who’ve lived in the U.S. for years or decades without long-term protections, the Republicans will have no problem tying the two together and forcing Democrats into the defensive.
Under the Radar
Conservatives use case of raped 10-year-old as anti-immigration talking point
After claiming the story about a 10-year-old who was raped, impregnated, and had to travel across state lines for an abortion was false, conservatives have seized upon the fact that the man arrested for the rape is an unauthorized immigrant. Tucker Carlson claimed Biden was “lying” about the case and that the story is “not true,” only to find “another moral to this story” after the alleged rapist’s identity was made public. Conservative publications, including the National Review, Fox News, and the Daily Mail have since emphasized the man’s immigration status, as have conservative pundits like Dinesh D’Souza and Tomi Lahren. In their mind, the rape and resulting pregnancy were the result of the Biden administration’s supposed “open borders” policies (as a reminder, the border largely remains closed to unauthorized migrants due to Title 42).
This is the latest example of how anti-immigration conservatives are willing to use tragedies to fuel their agenda; others include the murder of Mollie Tibbetts, as well as attacks and murders by MS-13 members in Virginia and on Long Island. As president and on the campaign trail, Trump repeatedly highlighted so-called “angel moms” and “angel families”—people whose loved ones had been killed by unauthorized migrants—as part of a broader effort to equate migration with criminality.
What these attempts to politicize interpersonal acts of violence ignore is that, in many cases, the victims of said crimes are also undocumented or are members of immigrant communities. Moreover, study after study has shown that immigrants, including those without regular status, have significantly lower rates of crime than native-born Americans. That’s not to say that crime does not occur, but rather that the link between crime and immigration that conservatives will emphasize at any opportunity doesn’t exist.
Next Destination
SCOTUS ruled Biden can end MPP. What happens next?
The Supreme Court recently ruled that the Biden administration’s attempt to end the Migrant Protection Protocols, which required some migrants to wait in Mexico while their cases were adjudicated by U.S. immigration courts, was lawful. As a quick recap, Biden began winding down MPP shortly after taking office, first by stopping all new enrollments and later by paroling migrants with pending cases into the United States. Before the Department of Homeland Security formally ended MPP, Texas and Missouri sued to prevent the administration from doing so. The states claimed that Biden’s effort to end MPP violated both the Immigration and Nationality Act and the Administrative Procedure Act; in a 5-4 ruling, the court held that neither was true.
The question is what the Biden administration will do next. It has all the tools at its disposal to end MPP and parole the roughly 4,000 people currently enrolled in the program. Given the relatively small size of the program—the Trump administration enrolled more than 60,000 people in MPP between January 2019 and the summer of 2020, after which almost all migrants encountered at the border were rapidly expelled into Mexico—and the fact that the Biden administration has admitted people with pending MPP cases into the U.S. before, it wouldn’t be too difficult to do so.
It’s possible that a subsequent effort to end MPP will lead to yet another legal challenge despite the recent SCOTUS ruling. However, given that the court specifically ruled that the administration adhered to the APA in its previous efforts to end the policy, any plaintiffs would have to come up with a new justification for keeping the policy in place. Meanwhile, immigration advocates are hoping that the administration will take the SCOTUS decision as an impetus to not only end MPP but also Title 42, another discretionary policy implemented under Trump.