September 2021
This month was a heavy one for immigrant communities. Democrats continued to advance the Build Back Better budget legislation, and within it, measures creating a path to citizenship. The Parliamentarian was presented with two options to create such a path and rejected them both. Meanwhile, large numbers of Haitian asylum seekers arrived at the U.S.-Mexico border; they were met with violence by border patrol agents and the administration ended a short-lived hiatus on deportation flights to Haiti. In the weeks to come, tens of thousands of Afghan evacuees will be resettled in communities across the country. The Biden administration stood up a new rule that aims to better insulate DACA from future legal challenges, but it may have unintended consequences. The administration also took their first steps to comply with a court order requiring them to make a “good faith effort” to reinstate the Remain in Mexico policy. Learn more about all these developments below.
Reconciliation Developments
From the outset, we anticipated that the largest hurdle to passing immigration reform through reconciliation would be gaining the approval of Elizabeth MacDonough, the Parliamentarian — an unelected official often referred to as the Senate referee. This month, MacDonough rejected the Democrats’ first and second proposals to create a path to citizenship.
The initial proposal would have created a new path to permanent residence and eventual citizenship for Dreamers, TPS holders, farmworkers, and other essential workers. MacDonough ruled that the proposal violated the “Byrd Rule,” which requires legislation passed through reconciliation to have a budgetary impact that is not “merely incidental” to the policy. In her opinion, the life-changing benefits that come with legal permanent residence dwarfed the budgetary component.
The Democrats’ second attempt was to move up the registry date, a provision in current law that allows people who have lived in the U.S. since 1972 or earlier to become permanent residents. If that date were changed to 2010, for example, approximately 6.5 million people would become eligible for permanent protections. She took only an hour to consider the proposal before rejecting it, reiterating that any legislation creating a path to permanent residence constituted a policy change that far outweighed the budgetary impact.
While the Parliamentarian’s decision is maddening — and we fundamentallydisagree with her conclusions — we will vigorously pursue our remaining options. Senate Democrats will continue negotiating with the Parliamentarian to grant protections and work authorization to large segments of the undocumented population, which would change millions of lives while we continue the fight for citizenship. If she refuses to authorize any expanded protections for the undocumented, Senate Democrats could attempt to overrule her.
Overruling the Parliamentarian won’t be easy — it would require the support of all 50 Senate Democrats and the Vice President. But senators are ultimately accountable to the people they represent, not an unelected staffer — and they have the power to finally pass overwhelmingly popular legislation that has languished in Congress for decades. If they meet another dead end with the Parliamentarian, they should exercise that power.
Haitian Asylum Seekers at the Border
Over the past several weeks, tens of thousands of Haitians made their way to the US-Mexico border to ask for asylum. A confluence of factors is causing the increasing numbers. In the past few months alone, Haiti endured a presidential assassination and a major earthquake that exacerbated existing political unrest, rampant violence, and extreme poverty. Those events have contributed to the uptick in asylum seekers, but a significant number of Haitians left the country years earlier and are coming from South America. Many are coming from Chile and Brazil, where immigrant communities — and Black immigrant communities in particular — are facing intense discrimination, new policies limiting opportunities for permanent status, and economies reeling from the pandemic. Misinformation about the prospects of receiving asylum in the United States is being circulated widely on Facebook and WhatsApp and coyotes are quick to exploit false hope.
The U.S. response has been abysmal. Images of CBP agents on horseback whipping Haitian asylum seekers sparked national outrage. The administration quickly condemned that practice but continued to deport thousands of people back to Haiti — even if that’s not where they traveled from — under Title 42, a Trump-era policy currently being challenged in court.
Advocates have pushed for the Biden administration to roll back the Title 42 policy — which uses the pandemic as justification to deport asylum seekers without due process — since inauguration day. On September 16, a district judge ordered the administration to stop expelling migrant families with children under the policy; the administration appealed that ruling and a federal appeals court allowed the policy to stand until oral arguments are heard in January. Meanwhile, some Haitian migrants are being deported back to dangerous conditions.
There is widespread, bipartisan agreement that the administration’s treatment of Haitian migrants is unacceptable; it is shared by some actors within the administration itself. On September 30, four UN agencies issued a joint statement calling for a comprehensive, regional approach to accommodate Haitian migrants.
The immigrant rights’ movement is working in solidarity with Black immigrant leadership to call for an immediate and indefinite end to deportation flights to Haiti and the extension of humanitarian parole to Haitians seeking protection. It is not too late for the administration to change course.
Afghan Resettlement
Following the collapse of Kabul, thousands of Afghan refugees and Special Immigrant Visa recipients were evacuated and thousands more are still waiting to get out. But leaving Afghanistan is only half the battle — for those who have left, the journey is far from over. There are currently tens of thousands of Afghans living on military bases across the country and overseas, undergoing medical and security screenings and waiting to be resettled in the United States. In the days and weeks to come, they will finally begin transitioning into more permanent homes.
Accommodating and integrating such a large number of people on a short timeline presents an enormous logistical challenge. Congress passed a $6.3 billion package for Afghan refugee resettlement and states are receiving word of how many evacuees they are slated to receive. There is little time to set up the appropriate resources, but both federal and state governments are doing everything they can to quickly secure temporary and permanent housing, offer trauma-informed care, enroll children in schools, and more.
Our partners at Welcome.us are stepping in to help coordinate disparate actors — from federal, state, and city governments to affordable housing groups and local volunteer organizations — who are all working toward a shared goal: to integrate Afghan arrivals into their new communities as efficiently and seamlessly as possible.
A New Legal Rule on DACA
On September 28, the Department of Homeland Security published a proposed rule intended to better protect DACA from future litigation. It is scheduled to take effect this winter, after the 60-day public comment period closes. While we welcome the commitment to strengthening the legal foundations of the DACA program, there is some concern that the rule could have unintended consequences: it decouples the core components of the program and creates the possibility that a judge could end work authorization while leaving protections from deportation intact.
In any case, we know DACA is not enough. Dreamers deserve permanent protections and a path to citizenship. As Sec. Mayorkas said in his statement regarding the rule, only Congress can provide those protections.
Remain In Mexico
As we discussed in last month’s update, the Supreme Court denied the administration’s request to stay (suspend) a ruling that mandates the revival of Remain in Mexico, an inhumane policy that forces Mexico to indefinitely host migrants seeking asylum in the United States until their case is adjudicated. It is another example of this Court’s gross abuse of power: the judiciary should not overrule executive decisions with foreign policy considerations, and the administration will not be cowed into submission.
On September 15, the administration submitted their first monthly status report on their “good faith effort” to reinstate the Remain in Mexico program. This does not constitute a revival of the policy. In fact, there are no major policy implications from the administration’s initial status report following the court order, which articulated challenges with implementing a policy that requires the cooperation of the Mexican government. We will continue to monitor next steps to ensure they don’t revert to policies reminiscent of Remain in Mexico.
As we enter the next phase in our fight to keep immigration in reconciliation, I want to take a moment to thank you for your continued partnership. And to those who are directly impacted, please know that these initial setbacks have only increased our resolve to keep fighting side by side with you.
In solidarity,
Marshall Fitz
