March 2021
The Biden Administration faced intense pressure this month as more unaccompanied minors sought refuge at the southern border and media coverage sensationalized the situation. Meanwhile, Judge Hanen held a long-anticipated DACA hearing and legalization bills that offer a path to citizenship to subsets of the immigrant population are moving through Congress. Here’s what you need to know as we move into April.
Unaccompanied Minors Arrive at the Border
Children and teenagers from Central America and Mexico are arriving at the border in increasing numbers hoping to gain asylum in the United States. This year’s numbers match a seasonal pattern found in a decade’s worth of CBP data, with a modest increase that can be attributed to pent-up demand due to the coronavirus border closure in 2020.
Nonetheless, major TV news broadcasts have described the current situation at the border as a “crisis” or a “surge” well over a hundred timesduring Biden’s presidency. Not only is that framing inaccurate, but it creates the perception of an unmanaged crisis and directly reduces the political space needed to advance immigration policy priorities, including legislation offering a path to citizenship. Media narratives that are quick to blame President Biden oversimplify the situation and erase the role of forces like rising violence, political instability, and adverse effects of climate change that drive people out of Central America in increasing numbers. Additionally, President Trump’s draconian approach to immigration further reduced the ability of our already challenged system to process asylum cases fairly and efficiently. Today’s so-called “crisis” is the first anticipated hurdle the Biden Administration had the misfortune of inheriting.
The only substantive change the Biden Administration has made to border processing is to accept asylum-seeking children and teenagers who arrive at the border without parents or legal guardians. Despite significant pressure from immigration advocates, the administration has left Title 42, the CDC authority that has been used to otherwise shut down the border, in place. Their hope is that the provision will buy them time to rebuild the asylum processing infrastructure.
President Biden recently tapped Vice President Kamala Harris to lead the administration’s work on the root causes of migration, an important signal that addressing these push factors is a top priority. She is well aware that delayed action has a high human cost, but that accepting people without adequate infrastructure to receive them does too.
Pending DACA Litigation
Judge Hanen’s ruling at the sunset of the Trump Administration called DACA’s legality into question — something the Supreme Court decision sidestepped, focusing instead on improper administrative procedure. He is now expected to determine whether DACA was created via an overreach of executive power, a decision that could end the program.
During the hearing on March 30, lawyers representing DACA recipients asked the judge to delay a ruling while the Biden Administration and Congress consider legislation addressing DACA recipients (DHS announced they will move to fortify DACA and the House passed Dream and Promise Act). Judge Hanen denied this request, claiming that waiting for the bill to pass would be “like waiting for Godot.” He gave both sides (the federal government and the state of Texas) until April 9 to file any additional briefs before he issues a final ruling.
While we await his decision, the impetus is on Congress to finally pass the Dream & Promise Act and codify legal status for millions of people whose livelihoods have been caught up in ongoing litigation these past four years — they deserve far better.
Congressional Updates
So long as the filibuster stands, it will be virtually impossible to pass the US Citizenship Act, which would create a path to citizenship for all undocumented immigrants. This is just one of the many reasons we so desperately need democracy reform, but in the meantime, Democrats are working to ensure that as many subsets of the immigrant population gain access to legal status under the current system. Piecemeal legalization bills have already passed the House; if they fail in the Senate, they may be folded into a larger reconciliation package, a process that circumvents the filibuster’s 60-vote threshold. Here’s where those stand now:
DREAM and Promise Act
The Dream and Promise Act of 2021 — led by Representatives Roybal-Allard (D-CA), Velázquez (D-NY), and Clarke (D-NY) — passed the House with the support of all Democrats and nine Republicans. This version of the bill expands eligibility for Dreamers by adjusting the qualifying age of entry into the U.S. to include 18-year-olds and expanding the continuous presence requirement to include all those present in the US on or before January 1, 2021. It also gives TPS and DED recipients the ability to earn permanent legal status. However, the current legislation includes criminal and gang-related bars that are harsher than those in the Durbin Graham Dream Act of 2021 and the US Citizenship Act. Their last-minute inclusion caused some advocacy groups to pull support for the bill who claim that it is heavily reliant on a criminal justice system that discriminates against Black and Brown people. These restrictions are sure to be subject to ongoing debate and could be amended or rescinded when the Senate takes up the bill.
The Farm Workforce Modernization Act
The Farm Workforce Modernization Act (FWMA) passed the House with the support of all but one Democrat and 30 Republicans. The bipartisan bill was introduced by Rep. Lofgren (D-CA) and Rep. Newhouse (R-WA); Sen. Bennet (D-CO) and Sen. Crapo (R-ID) are expected to introduce the bill in the Senate. The bill establishes a way for agricultural workers to gain permanent residency and reforms the H-2A visa program to protect against exploitation.
Essential Worker Bill
The Citizenship for Essential Workers Act was introduced by Sen. Padilla (D-CA) and Sen. Warren (D-MA) in the Senate; Rep. Castro (D-TX) and Rep. Lieu (D-TX) introduced the same bill in the House. Neither chamber has voted on the legislation yet, and this bill faces slimmer odds than the Dream & Promise Act or FWMA. The bill uses a very broad definition of essential worker and includes those who worked in essential industries but lost their jobs due to COVID-19 as well as the parents, spouses, and children of essential workers. It excludes some otherwise covered immigrants based on criminal history, although these restrictions are not as extreme as those in the Dream & Promise Act.
Despite the early momentum around a path to citizenship for as much of the immigrant population as possible, Senate Republicans are uniting behind a hardline strategy to block Biden’s immigration agenda. The narrative around a perceived loss of control at the border has emboldened that resistance, leaving Democrats with no room for error as they push these bills through an evenly divided Senate.
Public Charge is Dropped
The Biden Administration dropped legal challenges defending the legitimacy of the public charge rule, including those pending before the Supreme Court. Often referred to as the “wealth test,” the Trump Administration’s punitive iteration of the public charge rule penalizes immigrants for accessing public benefits by counting it against them should they apply for permanent residency. The rule’s implementation coincided with the beginning of the COVID-19 pandemic, and although pandemic-related services were exempted, there was undoubtably a chilling effect on the willingness of the immigrant population to access services when they needed them most.
The Supreme Court agreed in late February to hear an appeal to a lower court ruling against the public charge rule, which was first filed by the Trump Administration last year. The Biden Administration dropped the challenge this month, which allows the original ruling suspending public charge to stand. Although that decision is likely to permanently end the rule, a group of states, including Arizona and Texas, have asked the 9th circuit to hear their case in support of public charge.
TPS
The Biden Administration extended TPS to nationals of Venezuela and Burma this month, a move that grants status to as many as 300,000 Venezuelans and roughly 1,600 Burmese currently in the United States.
The administration is facing increasing pressure to re-designate Haitians for TPS; these benefits are set to expire on October 4, 2021 and the Trump Administration’s attempt to end the designation is still pending in federal court. Meanwhile, Haitians have been deported more than any other group since President Biden took office and the situation on the ground in Haiti is rapidly deteriorating. The political, economic, and humanitarian crisis in Haiti is compounded by a spike in gang violence and kidnappings; for undocumented Haitian immigrants, deportation poses a truly outsized risk.
This month, while extremely challenging, has proved that the administration remains committed to a comprehensive approach to immigration: from the root causes of migration to border management to legalization legislation that would give immigrants the opportunity to earn citizenship in the country they call home, there is substantial momentum for remaking our broken system.
