Even pared down immigration measures remain at risk in reconciliation fight—11-19-21
Immigration news, in context
This is the 103rd 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 ongoing effort to include some immigration provisions in the reconciliation bill.
In Under the Radar, we look at the growth of migrant encampments in northern Mexico.
In Next Destination, we scrutinize the continuing cooperation between the U.S. and Mexican governments with the goal of curbing migration.
The Big Picture
The news: As Democrats in the Senate gear up to potentially vote on the long-stalled now-$1.9 trillion reconciliation package, which passed the House Friday morning, the immigration provisions hang in the balance, threatened primarily by Senate Parliamentarian Elizabeth MacDonough. The immigration planks are already a dramatically pared down version from the ideas floated at the onset, providing no real new path to permanent residency or citizenship for anyone who wouldn’t already qualify for it.
What’s happening?
There are a couple of primary points to understand about the current state of the immigration measures in the reconciliation package: firstly, they are not, and never have been, a fundamental reimagining of U.S. immigration systems, processes, or law. Even in their initial, long-dead form, these provisions created no new visas or statuses, established no new departments or offices, made no changes to the immigration courts, and shifted no authorities.
This is why the moniker of “immigration reform” has always been a bit of a misnomer when it came to the reconciliation package specifically. Whereas other recent immigration legislative efforts actually attempted to disentangle some of the mess that is the U.S. immigration system and enact meaningful reforms (more on those below), this particular drive was centered very concretely around offering status to people already in the country either unlawfully or with lawful but nonpermanent and limited status. At first, this took the form of establishing a specific process for DREAMers, TPS and Deferred Enforced Departure holders, farmworkers, and essential workers to apply for permanent residency, a step on the path to eventual citizenship. As we wrote about in more detail when that version was current, millions of people nationwide would newly have access to this citizenship track.
MacDonough derailed that effort, ruling that the inclusion of such a measure violated Senate rules around the reconciliation process. There’s been a good amount of confusion about what exactly the criteria are here, how the decision is made, and how binding it is, so let’s briefly explain: budget reconciliation is fundamentally supposed to be a process about modifying federal budgets and spending, not necessarily enacting new federal policy. This can often be a distinction without a difference, and indeed it would be hard to argue that the reconciliation bill wouldn’t make some sweeping changes to U.S. society, but it’s all supposed to at base be budgetary tweaking.
By this token, Senate rules prohibit the including provisions whose budgetary impact is merely “incidental,” i.e. that they may have a budget impact but their aim is primarily to enact new policy. What happened here was that MacDonough (who actually started off her career as an immigration prosecutor then under the Immigration and Naturalization Service; do with that information what you will) decided that the inclusion of the path to citizenship was a policy shift much more so than a budgetary one, and recommended it be nixed. We say “recommended” here because the parliamentarian is ultimately a staff advisor to the Senate and has no authority to actually intervene in the legislative process.
This means that Democrats could ignore MacDonough if they wanted to, and they could even replace her. As a few outraged immigration advocates quickly pointed out, Senate Republicans in 2001 unceremoniously fired former Parliamentarian Robert Dove, who had been appointed during GOP control, after he issued a couple of rulings against them during a reconciliation process. Nonetheless, Democrats have chosen to honor MacDonough’s rulings. That’s rulings, plural, because after she shot down that initial plan, Democrats rolled out a so-called Plan B, which involved updating the registry date in existing federal law.
Registry is an interesting and obscure part of immigration law, which ironically probably hews the closest to how the average native-born person thinks the immigration system works. As we’ve discussed before, there isn’t a “line” or a length of time after which people in the country illegally can regularize their status. However, registry is the closest thing we have; basically, it sets a cutoff date and dictates that individuals who have been physically present in the country since before that date can apply for permanent residency, provided they aren’t otherwise inadmissible. If this seems like an extraordinarily simple and straightforward solution to the bulk of the undocumented population’s woes, it is, or at least it would be if the cutoff date didn’t make it functionally irrelevant—it’s January 1, 1972, meaning almost no one is currently eligible. (If you want a more detailed look at the law, Felipe did a deep dive for The Nation last year.)
Senate Democrats considered moving the registry cutoff up to 2010 or 2011, which would provide a path to residency for millions of people as well, this time not based on their own individual status or occupation but simply their longstanding presence in the country. This seemed like a surer bet given that it would merely update an existing law, functionally changing only one number, but again MacDonough ruled against the inclusion, and again the Democrats respected her decision. That leaves us with the current proposal, which would permit people who have been present in the United States since before 2011 to apply for a temporary designation known as humanitarian parole, which would provide some protection from deportation and work authorization but not much else (we’ve discussed it before in the context of its use for the reunification of separated families as a result of Trump’s zero tolerance policy).
Effectively, this means that the current immigration plans under consideration don’t provide any path to permanent status for anyone who wouldn’t already qualify. There are some potential silver linings, among them the fact that parole might allow people who did qualify to apply for permanent residency, for example through family or employment, but were not able to leave the country to seek it—as doing so would trigger re-entry bars—to adjust their status without having to leave. It is obviously still preferable for the undocumented to have some protections and work authorizations than nothing at all, even if it’s flimsy. Plus, the immigration measures include some additional ideas like recapturing unused green cards from prior years, which expire if not utilized, and permitting some applicants in lengthy backlogs to pay a premium to have their applications processed faster. Again, none of that would provide a path to anyone who doesn’t already have it, but it would help cut down on the enormous backlogs that primarily affect would-be immigrants from certain countries.
That’s all if this does make it in, though. Given MacDonough’s rather hardline stance on the previous attempts, it’s not unthinkable that she may end up deciding that any provision that shields the undocumented from deportation is a policy change and inappropriate for the reconciliation, at which point it will be up to Democrats to decide if they’re simply going to give up or overrule her.
How we got here
The U.S. has not had a piece of legislation that expanded status for large groups of undocumented immigrantssince the Immigration Reform and Control Act of 1986, though not for lack of trying.
That bill, signed into law by Ronald Reagan (different times!), provided a path to citizenship for nearly three million people, a combination of unauthorized immigrants who had been in the U.S. since before 1982 and seasonal agricultural workers who could prove they had worked in that industry for at least 90 days. It included provisions intended to curb unauthorized immigration, such as “an increase in border patrol and other inspection activities” along the U.S.-Mexico border and more funds for the Immigration and Naturalization Service and the Executive Office of Immigration Review. The law also made it illegal for employers to knowingly hire people who were in the country without immigration status.
IRCA was a partial success. It gave around 2.7 million unauthorized immigrants the opportunity to adjust their status, potentially shielding them from deportation (anyone who is not a U.S. citizen is subject to deportation, including lawful permanent residents). But because neither this law nor any subsequent piece of legislation created new channels for legal migration, it did little to solve the problem of unauthorized migration. Instead, it focused on deterrence through increased enforcement, which didn’t prevent immigrants from coming.
By the time Clinton was in office, the undocumented population was once again on the rise. This time, Congress attempted to solve the problem through enforcement, not amnesty. Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. This law, which we’ve written about in the past, expanded the categories of who could be deported and made it easier for the federal government to do so. As Dara Lind wrote for Vox, it made more people deportable and simultaneously made it harder for them to regularize their status. It was all enforcement, no reform.
There were numerous subsequent attempts at reform, and they all failed. The DREAM Act is perhaps the most well-known example. The first effort, the Immigrant Children's Educational Advancement and Dropout Prevention Act, was introduced in the House in 2001. It was later amended to a slightly narrower piece of legislation called the Student Adjustment Act. The Senate version of the bill, introduced by Senators Dick Durbin and Orrin Hatch (again, different times) was called the Development, Relief, and Education for Alien Minors Act. That bill would have granted permanent residency to anyone who was at least 12 years old at the time it was signed into law, had 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 wasn’t inadmissible or deportable under criminal or national security grounds of the Immigration and Nationality Act.
The 9/11 attacks derailed immigration policy, creating a new association between immigration enforcement and national security. Still, in 2006, legislators tried again, this time inserting the text of the DREAM Act into two broader immigration reform attempts in 2006 and 2007, which would have provided around 12 million undocumented immigrants with a path to citizenship, while also providing additional funding for border enforcement. Both attempts failed.
The DREAM Act was introduced in 2009 by a group of bipartisan legislators (different! times!) but was defeated in 2010. We keep emphasizing its bipartisan support to highlight just how much the immigration debate has shifted in recent years. In the early 2000s, lawmakers more or less agreed that having a permanent underclass of undocumented immigrants was detrimental to both the immigrants themselves and to the country in general. Of course, there wasn’t enough consensus on the issue to actually pass legislation, but there also wasn’t nearly as much polarization as there is today. Still, the DREAM Act failed again in 2011; it didn’t garner support from more conservative Democrats, nor from some Republicans who had voted for previous iterations of the bill, including Lindsey Graham and John McCain. After this latest failure, the Obama administration implemented Deferred Action for Childhood Arrivals, a stopgap measure designed to shield people who would have qualified for DACA from deportation, but did not provide a path to citizenship or any other kind of permanent status.
More recent attempts have similarly failed. Both the Farm Workforce Modernization Act, which would put certain agricultural workers and their relatives on a path to permanent resident status (and, eventually, citizenship) and the American Dream and Promise Act, which would grant certain undocumented immigrants—including those with DACA—conditional permanent residence, passed in the House in 2019 and then languished. Both bills were reintroduced in 2021 and have gone more or less nowhere. The U.S. Citizenship Act of 2021, a piece of legislation proposed by the Biden administration and introduced in the house by Rep. Linda Sanchez, stalled, as Congress instead decided to focus their efforts on the other two bills, which they say are more likely to garner Republican support.
And now here we are.
What’s next?
There are basically two concrete ways the next few days could go: in one scenario, MacDonough decides that the parole and green card recapture provisions (or maybe just parole) are a violation of Senate rules and recommends they be taken out. Given Democrats’ reticence to disregard her opinions so far, the likeliest outcome here is that they comply, and the whole reconciliation passes with no measures to provide status for the undocumented or even shield them from deportation. This would, to put it mildly, be a major issue for pro-immigrant legislators and advocacy groups, because, bluntly, this is the one bite at the apple.
We will not see another reconciliation process or similarly expansive omnibus bill to which immigration provisions like this could be attached in quite a long while. Certainly not until after next year’s midterm elections, in which the Democrats could very easily lose badly (they certainly seem to be striving to do so). If that happens, say goodbye to a path to anything, at any point in the near term. Even if the Democrats, say, retain their current House and narrow Senate majorities, It’s pretty clear that no standalone immigration measures is going to make it through, particularly considering that it would need a full sixty votes to overcome the filibuster, and Dem Sens. Joe Manchin and Kyrsten Sinema have been very publicly against doing away with it. In fact, even with a fifty-vote threshold, it’s not obvious that every moderate Democrat would vote for a pathway to citizenship for millions of people.
The other scenario is that MacDonough greenlights the measures, and they make it into a version of the reconciliation bill that passes the Senate and is then signed into law. In that case, roughly seven million people (according to an estimate from the Center for American Progress) could obtain five-year, renewable humanitarian parole designations. If you’re reading that and getting a sort of queasy feeling, it might be because this is effectively yet another extendable, nonpermanent program of frail protections for undocumented immigrants who are being given no long-term security or any real prospect of a stable position in U.S. life. You know, kind of like DACA and TPS, the very programs the initial version of the immigraiton measures was supposed to get people out of.
Maybe it’s the best the Democrats could get in this scenario (really, it’s not) but at its root, this is kicking the can down the road yet again, doing nothing to touch the endemic problem of a permanent underclass of longtime residents who are prevented from every fully participating in civic or economic life. Yes, it’s better for them to have protections and work authorizations as opposed to not, but the passage of this version of the reconciliation bill all but guarantees that we’re going to have to have this whole debate again, and pretty soon.
Under the Radar
Migrant encampments grow in Mexican border cities
Under Trump, the Mexican side of the U.S.-Mexico border became a mass open-air encampment for migrants. Due to a series of policies designed to keep migrants from reaching the U.S. or accessing the legal system if they managed to do so—the Migrant Protection Protocols (MPP), metering, and Title 42—the number of U.S.-bound migrants in Mexico skyrocketed over the past few years.
Biden promised to undo many of Trump’s immigration policies, and did indeed end MPP, more commonly referred to as the Remain in Mexico policy. But for months, the administration has refused to rescind the closure of the border to asylum seekers under Title 42. Time and time again, the administration has cited the ongoing pandemic as a justification for extending the policy, despite lifting other travel restrictions. As a result, the migrant encampments have not only stayed, but as the Associated Press recently reported, have also grown.
For migrants waiting at the border, uncertainty has been a hallmark of Title 42. The policy is not evenly applied across border zones, nor does it apply to all nationalities. Earlier this year, the Biden administration began granting exemptions to some migrants who were particularly at risk in Mexico, a process that required nonprofit organizations to identify the most vulnerable migrants and pass their names along to immigration authorities. That agreement ended this summer, when the administration decided to extend Title 42, reneging on its policy to begin phasing it out by July 31.
Next Destination
Mexico and U.S. will reportedly further cooperate to reduce unauthorized immigration
The U.S. will invest in southern Mexico and Central America in an effort to curb unauthorized migration to the U.S., Reuters reports. Mexico’s foreign minister, Marcelo Ebrard, said the U.S. and Mexico will cooperate on a plan that may be called “Sembrando Oportunidades,” which translates to “Planting Opportunities.” Ebrard mentioned the initiative at a press conference after a meeting between President Biden, Mexican President Andres Manuel Lopez Obrador, and Canadian Prime Minister Justin Trudeau
There are few details on the initiative thus far, Ebrard said the Mexican government’s proposals to increase economic production in the region was “very well received,” according to Reuters. If the goal is to stimulate the economies of southern Mexico and Central America, then it would be in line with the Biden administration’s “root causes” strategy which seeks to reduce migration from Central America by addressing both economic and humanitarian concerns in the region.
The Biden administration has also attempted to curb migration by asking Mexico to fortify its southern border with Guatemala, and by getting Honduras and Guatemala to agree to send troops to their borders as well, continuing the Trump administration’s practice of externalizing the U.S. border in order to prevent migrants from passing through transit countries on their way to the U.S.