Reconciliation opens door to widespread regularization program—07-16-21

Immigration news, in context

This is the eighty-seventh 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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NOTE: Gaby is off on a reporting trip this week (stay tuned for the eventual feature that will turn into!) so it’s just Felipe today, meaning we will have a somewhat abridged version BORDER/LINES consisting mainly of my analysis on the budget process.

This week’s edition:

  • In The Big Picture, I examine the process to include immigration provisions in a spending bill through budget reconciliation.

  • In Under the Radar, I look at the return of some asylum seekers who had been sent to Guatemala under the now-defunct Asylum Cooperative Agreement.

  • In Next Destination, I discuss Attorney General Merrick Garland’s decision to overturn Matter of Castro-Tum, an immigration court precedential decision that prevented administrative closure.

The Big Picture

The news: While the process remains somewhat under wraps, various Congressional Democrats have indicated that the budget reconciliation discussions around a massive $3.5 trillion spending bill include the addition of immigration provisions. On Wednesday, West Virginia Sen. Joe Manchin, somewhat of a dealmaker or breaker for any provision in a Senate bill (the reconciliation process allows the legislation to advance with just 50 senators plus Vice President Kamala Harris’ vote, as opposed to the 60 needed to overcome a filibuster in the standard legislative process), indicated that he was on board with the immigration measures, making it much more likely that they’ll make it through the gauntlet.

The takeaways

It’s not one hundred percent clear just yet exactly what immigration provisions will ultimately make it into the bill, but based on what legislators have intimated so far, we can expect that it will be a regularization scheme to provide paths to residency and eventual citizenship for a number of distinct groups, taking most elements from the American Dream and Promise Act, or HR6, that the House passed in March, and a few from the U.S. Citizenship Act, the ambitious but largely symbolic bill that President Biden sent to Congress early in his term.

I won’t go into the full nitty-gritty of each broad category targeted for potential regularization (I have a piece coming out later today in Slate that takes it step-by-step if you want to search for it), but the summary based on what we know so far is that these will include a population of so-called Dreamers, i.e. people who were brought to the country illegally or lost status as minors; people with Temporary Protected Status (and perhaps in the Deferred Enforced Departure program); and people who are farmworkers or were essential workers during COVID-19.

It’s important to emphasize “regularization” here because the changes almost certainly won’t include anything that could be meaningfully described as “reform,” i.e. we will not be seeing any changes to how the immigration system fundamentally works in the long-term. There will be no new visas, no new agencies, no new categories of immigrant or nonimmigrant. It will be an initiative to direct the government to allow otherwise-ineligible people to enter the process to receive permanent residency, under essentially the same framework as already exists (one exception might be if the language ports the concept of a long-term “conditional permanent residency” from HR6, though even that is a notion that already exists and is really just an interim step added to the standard process).

This also means that it’s a one-and-done deal. The people who will be eligible to regularize can apply to do so and enter the ranks of full rights and civic participation, but it won’t really fix anything about the system that left millions of people in such a situation in the first place. New TPS holders, for example, might just as well see their indistinct status extended two more decades and end up in the position that longtime Honduran TPS holders are in now.

I’ll focus on some topline thoughts and outstanding open questions as Senate Democrats work to finalize the language. First of all, this is really a story of minor language tweaks. Two drafts might be nearly identical, but changes to single words or numbers can have a huge impact on the outcomes and the volume of people that might be helped by the measure. One all-important metric will be eligibility dates; currently, eligibility for DACA, for example, requires continuous physical presence since June 15, 2012, and residency since June 15, 2007. This obviously leaves a lot of more recent Dreamers out, or even those who meet the presence requirements but became undocumented after the program was announced. HR6 set the cutoff at January 1, 2021 for Dreamers to apply for residency, and it’s possible the budget bill will ultimately set a cutoff as date of enactment, as other immigration measures have done in the past.

This might seem relatively peripheral, but putting in a date-of-enactment effective date could essentially pave the way not only for both DACA recipients and the many undocumented minors and young adults who have missed the DACA cutoff, but even the thousands of unaccompanied minors who have arrived in the last six months and been subjected to lengthy stays in government shelters, to obtain permanent status (provided they’re able to get in school and fulfill the education requirements). A Migration Policy Institute estimate found that HR6, with its January cutoff, could ultimately include over four million Dreamers. The same cutoff considerations apply to TPS and farm/essential workers.

There’s also the issue of whether the language will include legal Dreamers, i.e. the dependents of work visa holders who are at risk of aging out of eligibility as they wait for their parents to obtain permanent residency, a process that for certain visas and nationalities can take decades. This population has generally had far less visibility than their undocumented counterparts, but are in a similarly Kafkaesque predicament and have been successful at pressing their case in recent years. They are included in HR6, though whether they make it into the budget bill remains to be seen.

Insofar as TPS is concerned, it’s not clear if the path to residency would include some of the more recent TPS designations, such as the one for Venezuela in March of this year. Either way, it will probably require applicants to be either TPS recipients or TPS-eligible people who have already been living in the country for some time; HR6 put the requirement at three years of continuous residence prior to enactment. No word yet on whether DED is included, but Congressional Democrats have essentially been bundling it with TPS in some recent proposals, so there’s a good chance it will be.

That leaves farm and essential workers. Farmworkers, of course, have been a perennial target for legalization programs, and famously had their own program in the last large-scale amnesty program, the Immigration Reform and Control Act of 1986. Essential workers are a new category, established as a direct consequence of the COVID-19 pandemic. Biden’s U.S. Citizenship Act included a path to regularization for essential workers, which were described as those in a Homeland Security memo defining critical infrastructure workers as everything from workers in chemical facilities to communications infrastructure workers to railroad operators to food delivery workers.

The act states that anyone who has participated in such work from when the COVID-19 public health emergency was declared to 90 days after it’s terminated will be eligible for regularization, and the reconciliation language is likely to take more or less the same tack. According to a recent UCLA study, the population of undocumented essential workers nationwide could number north of six million, though some large percentage of this group will have overlap with the Dreamers.

The potential numbers are immense, though it’s worth noting that it isn’t a generalized program in the sense that it won’t be a generalized pathway to citizenship for all undocumented people, only for those falling into the described categories, extensive as these might be. As with all recent legislative proposals, there will no doubt be wrangling among Democrats as to the extent to which it’s appropriate to include criminal contact carve-outs in the language. Every recent proposal has had some type of exclusions, but the question is how substantial they’ll be; will everyone who’s been convicted of three misdemeanors be excluded, as they would be under HR6? We’ll have to see how effectively progressives can push for limiting that kind of exception.

There’s also no guarantee that any of this will ultimately make it into the law, though it’s certainly the closest anyone’s gotten in years. Manchin’s support is crucial, but there’s still the specter of the Senate parliamentarian, who could well decide that the inclusion of immigration provisions as part of the reconciliation process goes against Senate rules. The Democrats wouldn’t actually have to comply with her decision, but they probably would if it came down to it.

Under the Radar

Migrants subjected to safe third country agreement return

Among the many Trump-era asylum restriction policies that most people have by now probably forgotten about, if they knew about it at all, are the bilateral agreements that the administration inked with Guatemala, Honduras, and El Salvador, which relied on an obscure provision of U.S. law to allow the government to send asylum seekers to seek asylum in a separate country instead. The agreements were patently absurd from the start — migrants from Honduras and El Salvador, for example, might well be fleeing the same conditions and even the exact same gangs that were to be found in Guatemala.

Ultimately, only the Guatemalan agreement went into full effect, and in late 2019 the Trump administration began sending asylum seekers from other Central American countries there, supposedly to avail themselves of Guatemala’s own very limited asylum system. Ultimately, almost a thousand migrants were sent to Guatemala before the program was suspended, and a Senate report found that not one of them had ultimately received asylum. Now, as reported by BuzzFeed News, six of those asylum seekers who subsequently sued the administration over the program are being allowed to return.

It’s not a guarantee of a permanent return, as they are now simply being afforded the chance to make an asylum case in U.S. immigration court. It does, however, at least give them the opportunity to live in relative safety as they build their case, and at least open up the chance that they might be able to start new lives here. Attorneys and advocates involved in the case are now pushing the Biden administration to allow the return of all the people who were sent away under the program.

Next Destination

New immigration court precedent re-establishes administrative closure

Some of the most consequential immigration-related policy changes of the Trump years came in the form of immigration court precedents, issued by both the appellate Board of Immigration Appeals and the attorneys general, who serve as a kind of supreme court for the immigration court system (which, as a reminder, is not independent and is housed within the Department of Justice). Among the most consequential of these decisions was the decision in Matter of Castro-Tum, issued by former Attorney General Jeff Sessions in 2018.

Essentially, the precedent barred immigration judges from utilizing a tool known as administrative closure, which is the ability to close an immigration court hearing without scheduling a next one in the docket, effectively putting an immigration case on an indefinite pause. The respondent neither won nor lost the case, but simply had it closed, which functionally let them continue to live without the looming threat of removal. Judges took this step for a variety of reasons, such as if a respondent was also actively seeking a new legal status through the U.S. Citizenship and Immigration Services, which would potentially render their immigration case moot. It was also just a way of prioritizing resource allocation.

Castro-Tum not only stopped judges from closing cases, forcing them to take each to the end without regard for circumstance, but it triggered the reopening of hundreds of thousands of cases that had already been closed, ballooning the immigration court backlog and suddenly thrusting all of these people back into danger of deportation.

This week, in Matter of Cruz-Valdez, current Attorney General Merrick Garland overturned Castro-Tum, noting that three separate federal appeals courts had already ruled against it and that it broke with longstanding precedent and compromised judicial independence for immigration judges. With this, Castro-Tum is officially dead, and judges across the immigration court framework are categorically permitted to administratively close cases again.