August 2021
This month, the House and Senate took critical steps toward creating a path to citizenship for millions of aspiring Americans through budget reconciliation. The steady drumbeat toward reconciliation faded into the background, however, as a devastating earthquake struck Haiti and the Taliban toppled the Afghan government. Meanwhile, the Supreme Court denied the administration’s request to halt a shocking lower court decision that requires DHS to reinstate the legally dubious and inhumane Remain in Mexico program. At the southern border, migrants continue to arrive and face slim chances of relief. And for those who have lived here for decades, there is still no path to legal status — but we are hopefully on the precipice of changing that.
Budget reconciliation developments
The House and Senate passed the $3.5 trillion Build Back Better budget resolution this month, setting the parameters for legislation that will ultimately be passed through ‘reconciliation’ and require only a simple majority vote. The process is easy to lose track of, so in this month’s update, we provide a brief road map for what’s happened so far, where we stand right now, and what to expect moving forward.
What’s happened so far:
On August 11, the Senate passed the budget resolution along party lines and allocated $107 billion to the Judiciary Committee. Most of that money is reserved for a path to citizenship for Dreamers, TPS recipients, farm workers, and other essential workers.
Senate debate on the resolution (known as a vote-a-rama) included several immigration amendments, several of which passed. While the votes are nonbinding at this point, they provide insight into the Republican lines of attack that are sure to reemerge when the Senate debates the reconciliation legislation. The amendments that passed involved restrictions on legalizing individuals with criminal convictions, prohibiting the transportation of migrants without a negative COVID test, and creating a fund for immigration enforcement and humanitarian needs.
On August 24, the House passed the budget resolution along party lines.
Where we stand right now:
Legislation related to each of the budget resolution provisions is currently being drafted in the various committees of jurisdiction, with a soft deadline set for September 15. The Judiciary Committee is tasked with drafting legislation that has a budget impact within that $107 billion range. The number of people who will be eligible for permanent residence under this process is contingent on how the Congressional Budget Office “scores” the cost of legalizing various populations. The House Judiciary Committee is scheduled to begin markup of the immigration measures the week of September 13.
What to expect moving forward:
The only challenge to including a path to citizenship in reconciliation will be whether the Senate Parliamentarian — an unelected official often referred to as the Senate’s referee — believes the legislation passes the “Byrd rule” test. The rule requires that legislation passed through reconciliation have an impact on the federal budget that is not “merely incidental” to the “non-budgetary components” of the policy. We firmly believe that a path to legal permanent residence (and ultimately citizenship) passes that test.
Once the Parliamentarian finally rules on these provisions and the House committees complete their markups, each chamber will consider the full package, make further amendments, and resolve any disagreements between the House and Senate. Final passage — by a simple majority vote in both chambers — is expected as soon as early October.
Afghan refugees and the Haiti earthquake
The U.S. withdrawal from Afghanistan marked the end of a 20-year war and — almost immediately — the fall of Kabul. This month, the world watched city after city succumb to the Taliban’s control, leaving hundreds of thousands of Afghan civilians desperate to flee.
The administration’s ‘Operation Allies Refuge’ began mere weeks before U.S. troops finally departed and provided flights out of Afghanistan for those with Special Immigrant Visas (SIVs), which are awarded to civilians who risked their lives to aid the United States. The processing times for SIV applications — like too many immigration applications — are notoriously, maddeningly slow.
The U.S. government has yet to complete the evacuation of all American citizens and all those in the SIV application pipeline. But those are just a fraction of the tens of thousands of other Afghans who helped U.S. troops, are in acute danger, but aren’t yet in the pipeline for an SIV.
The Biden administration is facing mounting pressure to continue to evacuate allies and expand relief to Afghans more broadly. Tens of thousands of SIV holders, refugees, and parolees will be resettled in the United States in the weeks and months to come.
Several of our partners are leading efforts to resettle as many Afghans as possible in communities across the U.S. We are so grateful to be a part of a network of people working tirelessly to ease the enormous hardship these Afghan immigrants have endured.
Please stay tuned as we will start posting opportunities to support these efforts at emersoncollective.com.
In our own hemisphere, Haiti was hit by a 7.2 magnitude earthquake that killed more than 1,900 people, followed by a tropical storm that brought flash floods. Local hospitals were quickly overwhelmed and infrastructure across the country crumbled. Haiti was already enduring a political crisis after the assassination of its president last month; there is no government equipped to distribute the kind of relief Haitians desperately need and international relief is running thin.
Advocates are calling for a pause on all deportation flights to Haiti and an expansion of TPS. On August 3, Haiti’s TPS designation was extended in response to the president’s assassination; that designation keeps the program in place until February 3, 2023. Whether Sec. Mayorkas extends the program mere weeks after the last disaster remains to be seen — but most immediately and urgently, we must ensure that TPS recipients are put on a path to permanent residence and can finally build stable lives within the U.S.
Immigration in the Courts
Texas v. President Biden
A Texas judge ordered a revival of the Remain in Mexico program this month. Using the Supreme Court’s decision on DACA last summer as a (misguided) precedent, the judge ruled that the Biden administration’s temporary suspension of the program in January violated administrative law (DHS Secretary Mayorkas permanently rescinded the policy in June). The judge also ruled that the policy violated immigration law by admitting migrants into the country who might use state services, thereby placing an undue burden on states. The decision gave the administration a week to reinstate the program or to detain all those arriving at the border.
In response, the administration requested a stay (suspension) of that ruling, arguing that reinstating the program requires cooperation of the Mexican government and cannot be done unilaterally. Despite this Supreme Court’s typical deference to executive power — especially when foreign relations are implicated — they denied the request for a stay. While the decision is galling, it does not require that the administration immediately reinstate the Remain in Mexico program or a similar policy. The administration must only make a “good faith effort” to comply with the ruling while remaining committed to restoring the asylum system and safeguarding the rights of asylum seekers. We will continue working with the administration to ensure we don’t end up with another version of this cruel and unlawful program.
Texas v. United States
On August 19, another Texas federal judge issued a nationwide preliminary injunction halting two administrative memos that direct ICE to prioritize arresting undocumented immigrants who are felons, gang members, national security threats, and/or pose a direct threat to public safety. These sensible priorities marked a stark and welcome departure from the Trump administration’s policy of targeting all undocumented people; the Trump-appointed judge, however, called them “suffocating.”
This jaw-dropping decision, which effectively nullified the exercise of prosecutorial discretion — a fundamental principle of separation of power — did not withstand the scrutiny of even the highly conservative 5th Circuit Court of Appeals, which stayed the injunction while litigation continues. For now, the administration’s enforcement priorities remain in effect.
United States v. Gustavo Carrillo-Lopez
Unauthorized re-entry after being deported, ordered removed, or denied admission has long been a federal felony, but a Nevada court declared that practice unconstitutional this month. After a trial, the judge concluded that the law, when enacted, was explicitly motivated by racial animus toward Latinx people. Tens of thousands of migrants and asylum seekers are subjected to criminal prosecution for illegal reentry each year; in FY2019, illegal re-entry cases made up roughly 30 percent of all federal criminal cases — this ruling is a monumental victory, but there will be more litigation before the issue is finally settled.
Border developments
Migrant encounters at the U.S.-Mexico border ticked up again this month, reaching a 21-year high. The numbers are indicative of a buckling immigration system and mounting desperation among migrants — but they are also mischaracterized by overly-sensationalized news coverage.
Our partners at the American Immigration Council updated their report on border encounters this month and layered in two often-overlooked data points. The media reports on increasing numbers of border encounters, but those numbers should not be conflated with actual border entries: successful unauthorized entries represent an increasingly narrow portion of all attempted border crossings. The vast majority of people arriving at the border are being apprehended, processed, and turned away. Title 42 has further distorted the reporting on attempted border crossings: with so many people being immediately expelled, recidivism rates have spiked, and overall numbers encompass repeat attempts.
Nonetheless, the pressure on the border is undeniable: as more people continue to seek entry and COVID cases surge again, the Biden administration has been thrown back into emergency-response mode. New tent encampments reminiscent of the Remain in Mexico program have reemerged along the border as processing times slow. Although the administration remains committed to rolling back Title 42 and bolstering our decimated asylum system, those longer-term goals can seem elusive.
Steps to streamline and enhance the system are underway: the Biden administration announced a new policy this month that would enable USCIS officers to adjudicate asylum applications originating in the border region instead of immigration judges. While this policy has the potential to reduce wait times by years, we want to be sure that due process, including access to counsel, is not short-circuited in the process.
Against an increasingly painful international and political backdrop, we continue the drive toward citizenship. This administration and Congress can make long-overdue changes that impact millions of lives. But this may be the last, best chance to cross the legislative finish line and we will leave no stone unturned in our advocacy.
In solidarity,
Marshall Fitz
