July 2021
A federal judge in Texas struck down the DACA program, another dire twist in the fate of a program that has provided so much hope and opportunity to so many. The decision throws hundreds of thousands of aspiring Americans into legal limbo once again and intensifies the pressure on Congress to pass a budget resolution that includes a path to citizenship for Dreamers, TPS holders, farmworkers, and other essential workers. Meanwhile, the Biden administration implements a narrow rule on expedited removal for some families and maintains Title 42 as the Delta variant spurs new coronavirus outbreaks across the country. As border crossings rise, the parties offer opposing visions on the value of immigration and the approach to border management. Read more about this month’s immigration news below.
Federal court rules DACA unlawful
Last summer, the Supreme Court delivered a moment of respite by ruling that the Trump administration had improperly rescinded the DACA program and carefully avoiding the question of whether the program itself was legal. On July 16, the Texas court answered that question directly: U.S. District Judge Hanen declared the program unlawful and moved to permanently enjoin it.
Here’s what that decision means:
- No first-time DACA applications can be granted, including nearly 80,000 that are currently pending at DHS.
- Individuals who already have DACA remain protected from deportation, are authorized to work, and may continue to renew their status for now. It is unclear how long renewals will be permitted, so we encourage DACA holders who are eligible to apply for renewal to do so quickly and/or to consult with a legal adviser.
- The heroic efforts by movement litigators to keep the program alive have run their course and only Congress can provide the permanent legislative solution these aspiring Americans — and millions like them — deserve.
The decision is devastating, but it comes at a time when Congress is actively considering legislation that would grant Dreamers and others a path to citizenship. It adds urgency to our work ensuring that citizenship legislation is included in the next budget reconciliation package.
Immigration and budget reconciliation
The Senate voted to move forward with a bipartisan $1 trillion infrastructure package on July 28, which would make crucial investments in the country’s public works systems. That legislative advance was important because, politically, it was deemed a necessary precursor to Senate consideration of the budget resolution. Enacting a budget resolution, in turn, is the first step in the process of passing legislation through budget reconciliation.
Why does all this matter for immigration? Because budget reconciliation, which bypasses the filibuster and requires only a simple majority vote to become law, is likely the only mechanism available to pass immigration reform in this polarized Congress. While the exact parameters of the legislation have not yet been determined, the draft budget proposal includes allocations for a pathway to citizenship for Dreamers, TPS holders, farmworkers, and other essential workers covering nearly 7 million people.
Democrats are gearing up for the fight to preserve those provisions in the final package: President Biden announced his support for including immigration in reconciliation in the wake of the DACA decision. Several Democratic House Members have said they will not vote to pass a budget reconciliation deal that excludes citizenship legislation. And Sen. Joe Manchin, one of Congress’ most conservative Democrats, offered public support for immigration’s inclusion in budget reconciliation. But it is sure to be a partisan fight given that Senate Minority Leader Mitch McConnell is rallying his party to frame this as “far left amnesty” rather than the wildly popular proposal that it is.
The primary hurdle, however, will not be overcoming Republican obstruction given that we are confident that all 50 Democratic senators support it. It will be persuading the Senate Parliamentarian that immigration legislation meets the standards imposed by the so-called “Byrd Rule,” which requires all legislation passed through reconciliation to carry a budgetary impact that is not “merely incidental” to the policy. A path to citizenship should clearly pass that test: in the immediate term, legalization increases government costs as newly legal residents become eligible for benefits and services. The Congressional Budget Office scored the 10-year cost of passing the Dream & Promise Act, for example, at $42.5 billion.
Moreover, the currently proposed legislation will also generate profoundly important economic impacts. It would increase the U.S. GDP by a cumulative $1.5 trillion over a decade, raise wages for all Americans, increase tax revenues, and create more than 400,000 new jobs. We expect the parliamentarian’s ruling later this fall, a decision which could quite literally decide the futures of millions aspiring Americans.
Biden administration extends expedited removal to migrant families arriving at the border
The Biden administration announced it will begin applying expedited removal — a fast-track process that provides virtually no legal review — to migrant families that immigration officials deem ineligible for asylum after an initial screening at the border. The policy change caused deep concern in the advocacy community that families deserving of asylum will be removed without a chance to collect evidence and work with a lawyer to present their case in court.
The announcement was also seen as a sharp shift in course because it replaced rumors that the administration would wind down Title 42 exclusions, the health emergency policy implemented during the pandemic that authorizes DHS to immediately expel migrants back across the border, even if they are seeking asylum. Although according to CBP data the number of families subjected to Title 42 has declined since March, the administration has struggled to accommodate the families that have been allowed to enter and has heavily relied on organizations near the border and hotels for processing. That strain, coupled with the highly contagious Delta variant, has created hesitancy among Biden administration officials to revoke the order.
The continued reliance on Title 42 and the expansion of expedited removal are desperate measures to handle the high numbers of migrants arriving at a border without adequate infrastructure to process them. Their continued use is further evidence that we urgently need systemic changes to our immigration system. The Biden administration, thankfully, offered a roadmap to a far better future this month.
Biden administration releases a blueprint for a modern immigration system and the border battle escalates
This month, the administration released a blueprint for a fair, orderly, and humane immigration system. The document offers a clear vision — and a plan to realize it — of an immigration system characterized by humane and secure border management, fair processing of asylum applications, collaboration among regional partners for migration management, and sustainable investments to address the root causes of migration in Central America. It also calls on Congress to quickly pass the USA Citizenship Act and the Dream And Promise Act, which together would create a path to citizenship for millions of those already living in the United States.
The first steps in the strategy involve undoing some of the most harmful policies enacted by the Trump administration. Since Biden took office, more than 12,500 people enrolled in the Remain in Mexico program have been processed and dozens of families separated under zero tolerance have been reunified (with hundreds more on the near horizon). But the Biden administration aims to do much more than repair the harms done by its predecessor. It is committed to working across all levels of government to make lasting changes in the years to come, from investing in a well-managed border to improving the efficiency and fairness in the asylum system to increasing access to humanitarian protections in the region. Ultimately, the administration plans to make meaningful investments in Central America so that more people who want to stay in their countries of origin are able to.
In sharp contrast to this pragmatic, solutions-oriented approach, too many Republican leaders continue to press a false narrative that the Biden Administration has lost control of the border while doing nothing to support a set of actionable policy solutions. Texas Governor Greg Abbott has been among the most extreme actors, ordering the Texas National Guard to assist the Texas Department of Public Safety (DPS) in arresting migrants crossing the border. And he has authorized DPS to pull over any vehicle suspected of transporting migrants and reroute it back to the port of entry. Should the driver refuse to comply, DPS officials are instructed to seize the vehicle. While Abbott claims these steps are needed to combat the spread of COVID-19, he ignores the real threat to his state: only 55% of Texans are fully vaccinated and the governor has vehemently opposed vaccine and mask mandates.
The Department of Justice already sued the state of Texas over Abbott’s executive order as an unlawful and blatant invitation to racially profile drivers and seize their private property. But the policies are not designed to address real challenges (or survive judicial scrutiny); they are the pillars of a fear-mongering campaign designed to energize the GOP’s political base. What else can one call a military response to asylum seeking families, a racial profiling edict that puts nonwhite Americans at acute risk of abuse, and the scapegoating of immigrants for a public health crisis that Americans cannot stamp out due to a sizable portion of that political base refusing to get vaccinated?
As Congress nears August recess, the immigrant rights movement remains steadfastly committed to realizing the goal that has anchored us for decades: a path to citizenship and the promise of a more welcoming, inclusive America. As always, we greatly appreciate your partnership in this fight.
In solidarity,
Marshall Fitz
