Immigration Update: January 2022

2022 started off during a particularly rough time for the immigration reform movement. Right before the holidays, the Parliamentarian rejected the latest immigration proposal we had advanced for the Build Back Better legislation (which itself remains in a precarious state). The new year also prompted us to zoom out: Groups across the movement published year-in-review reports that tracked the Biden administration’s successes and shortcomings. Meanwhile, the asylum backlog hit a record high and the House debated creating an independent immigration court. Finally, the Biden administration announced that the Summit of the Americas meeting will take place in Los Angeles this June, which offers a critical opportunity to begin developing a regional strategy for managing hemispheric migration. Here’s what you need to know as we head into February:

• Reconciliation update

• A look back on 2021

• Asylum backlog reaches a record high

• Summit of the Americas announcement

Reconciliation update

In late December, the Parliamentarian rejected the Democrats’ immigration proposal for the third time. Her most recent ruling concluded that the proposed "parole" initiative, which offered temporary protection from deportation and work permits, did not satisfy the requirements for budget reconciliation. In essence, she wrote that the proposal would create an entire “new class” of people who would go from being undocumented to having status and potentially becoming eligible for LPR status; in her view, those policy changes outweighed the budgetary impacts and were inappropriate for inclusion in the reconciliation process. As in her prior two rulings, her reasoning was highly subjective and frustratingly short, leaving very little room to keep pursuing legalization options in this bill.

That devastating blow was quickly followed by Sen. Manchin’s refusal to vote for the bill at all. Without his vote, none of the Democrats’ priorities—from child care to climate change to COVID-19 relief—can go forward. After almost an entire year of organizing, lobbying, drafting, and redrafting, it is truly a testament to the dysfunction of our democracy that one senator’s position could bring the bill to a screeching halt.

Given the extensive efforts that have gone into Build Back Better, Democrats will continue to do everything in their power to identify common ground and forge a compromise with Sen. Manchin. Majority Leader Schumer has indicated that the bill likely won’t come up for a floor vote until March, given that there will need to be substantial renegotiations to court the votes of Sen. Manchin and other moderate Democrats.

Despite these setbacks, we are not giving up on the bill as a whole or on including immigration provisions within it. If the legislation makes it to the Senate floor, Leader Schumer is expected to pursue a legislative maneuver to overrule the Parliamentarian’s immigration rulings. While we support this tactic as an opportunity to put senators on the record about their commitment to deliver citizenship for millions, we know that not all 50 Democrats will be willing to disregard the Parliamentarian’s opinion.

We are therefore simultaneously working to include some smaller immigration provisions in the bill. Advocates are exploring a floor amendment strategy that could offer a radically scaled back proposal to provide relief to some undocumented individuals. To be responsive to her latest ruling, the eligible population would likely need to be substantially scaled down and the program would need to offer no path to permanent status. We will also be pushing for several legal immigration proposals, including the recapture of significant numbers of previously unused green cards. And we will continue advocating for BBB funds to be allocated to provide legal representation and other policies to make the system more fair, humane, and orderly. In short, we remain determined to secure some systemic improvements through reconciliation should the bill go forward.

All that said, I want to take a moment to recognize the enormous sense of loss within the immigrant rights’ movement, and of course especially among directly impacted communities. A path to citizenship remains our North Star and we will keep fighting for it for as long as it takes

A look back on 2021

Several of our partners published year in review assessments that offer a balanced look at the administration’s work on immigration. Some of the most damaging Trump-era policies survived the first year of the Biden administration, including Title 42 and the Remain in Mexico program, both of which allow border patrol to turn asylum seekers away without due process. Nonetheless, we collectively made enormous progress this year on a variety of policy fronts. The administration advanced 296 executive actions on immigration since Biden’s inauguration, more than triple the number issued by the Trump administration in his first year.

These changes include:

• Dramatically curbing interior enforcement by directing ICE to focus only on undocumented individuals who pose a national security risk.;

• Ending long-term family detention.;

• Expanding eligibility for TPS, deferred action, parole, and asylum.;

• Dropping the Trump administration’s extreme iteration of the public charge rule.;

• Rescinding the Trump-era travel bans.;

• Putting forward a long-term plan to address the drivers of migration in the region.

This is not a comprehensive list but these are significant, meaningful changes that were made possible in part by the advocacy of this community.

Asylum backlog reaches a record high

The immigration case backlog reached a record high between October and December 2021, as noted in a study released this month. Some 1.6 million cases—a number greater than the population of Philadelphia—remain pending, with an average wait time of roughly five years.

The system is clearly, profoundly broken. For starters, there simply aren’t enough immigration judges and related infrastructure to handle this caseload. But more fundamentally, asylum has become the only available avenue for millions of people looking to come to the United States: it now functions as a catchall category that it was never intended to be. The result is an enormous pile up of cases with ridiculously low rates of approval.

Furthermore, there is no judicial independence in the immigration courts. The Executive Office of Immigration Review (the regulatory structure encompassing the immigration courts) sits within the Department of Justice, which means that immigration judges report to the chief prosecutor—the Attorney General—who retains the power to overrule any decision. The result is that the immigration courts have become excessively politicized with pendulum swings happening at the change of presidential administrations because they don’t have the same judicial independence that other courts are constitutionally granted. The House held a hearing to create an independent immigration court that would have the same judicial independence as other federal courts, but the effort is unlikely to gain traction in our gridlocked Congress.

Meanwhile, the administration is still finalizing a rule that would make the asylum application process more efficient by enabling asylum officers to approve grants of asylum without the need for an immigration court. Advocates are appropriately concerned about the rule’s impact on due process for asylum applicants. But absent legislative reforms, government officials have limited tools and are pursuing an imperfect solution designed to balance diligence in assessing protection claims and processing speeds.

Summit of the Americas

President Biden announced that the 2022 Summit of the Americas meeting—the only convening of leaders from the nations of North, South, and Central America and the Caribbean—will take place in Los Angeles this June. Migration is sure to be among the major topics of discussion, and the hemispheric convening offers a critical opportunity to begin collaboratively designing new migration channels to accommodate the increasing numbers of climate-displaced people in our hemisphere.

Anticipating and responding to climate-related migration is sure to be a mounting challenge in the coming years; it is one of Emerson’s core priorities this year. We’ll keep a close eye on regional convenings like these and do what we can to get our leaders to constructively engage on the issue. Stay tuned as our work unfolds in the coming months.

Thank you, as always, for your partnership. Despite the unending obstacles impeding our pursuit of immigration reform, I remain incredibly grateful for the strength and resiliency of the movement.

In solidarity,

Marshall Fitz
Managing Director of Immigration, Emerson Collective