Immigration Update: July 2022

July provided a sliver of hope for small but meaningful bipartisan breakthroughs but was overall another tough month for immigrants and immigration. The DACA program is under existential threat—yet again—from an ultraconservative federal court. Our collective failure to imagine, build, and manage a better migration system continues to haunt us as migrant deaths mount and craven politicians weaponize migrant arrivals at the border. But while Congressional paralysis continues to hold immigration reform hostage, several Republicans have signaled potential openness to discrete immigration measures that would address short- and longer-term economic challenges.

• DACA on the Ropes at the Fifth Circuit

• 17 Migrants Die after Boat Capsizes off Bahamas

• DC and NYC Mayors Seek Federal Assistance To Support Migrants

• Potential Progress on Solutions for “documented Dreamers” and Farmworkers

1. DACA on the Ropes at the Fifth Circuit

We are reaching the culmination of a years-long effort by anti-immigrant politicians to have the DACA program declared unlawful. In early July, a New Orleans court at the 5th U.S. Circuit Court of Appeals heard a case stemming from a lawsuit brought by Texas and eight other Republican-led states that challenges the legality of the DACA program, which the Biden administration has defended.

This is not the first case challenging the Obama-era protection for childhood arrivals, a program that was initially created in 2012. In 2020, the Supreme Court ruled that the Trump Administration violated federal procedural requirements when it attempted to terminate the program. That ruling, which avoided the question of DACA’s legality, kept the program on life support but highlighted its vulnerability to future legal challenges. Those challenges have now arrived and the Fifth Circuit panel that heard arguments in the case this month made clear they view the program to be unlawful.

Meanwhile, the Biden administration is working to salvage the DACA program through formal rulemaking and hopes to publish the final rule this August. One of the legal critiques of the program has been that it was created by agency memo rather than through the formal notice-and-comment procedure required of most regulations. Most experts are skeptical, however, that rulemaking will suffice to save the program given the Supreme Court’s makeup, orientation, and prior rulings. If the program perishes in the courts, we will do all we can to continue pressuring Congress to provide permanent protections for the 600,000 DACA-mented young people living in the U.S.

Our friends and partners at United We Dream have been leading this fight for our DACA-mented friends and family. Please sign up for updates and alerts on their website: unitedwedream.org.

2. Seventeen Migrants Die after Boat Capsizes off Bahamas

On July 24, 17 Haitian migrants died after their boat—headed for the U.S.—capsized off the coast of the Bahamas. This tragedy echoes last month’s horror where 53 people died as they suffocated in an overheated tractor-trailer abandoned by smugglers in Texas. The common throughline is the extreme lengths to which people will go in search of safety for themselves and their families. The extreme violence and poverty that has characterized life in Haiti for decades has become particularly gruesome and chaotic since the assassination of its president in 2021. The desperation described by one woman after discovering her one-month-old niece’s bullet-ridden body in Cité Soleil, a neighborhood overridden by ruthless gangs, tragically sums it up: “We are still alive, but I cannot say we are alive … If this is life, what is hell?”

During the first half of the fiscal year, the U.S. Coast Guard intercepted more than 3,500 Haitian migrants, more than double the number from the same period a year earlier. That figure is likely to pale in comparison to the numbers they encounter in the second half of the year given the increasing levels of desperation. These dangerous attempted sea crossings—like those occurring over treacherous terrain at our land borders—demonstrate that people will continue to risk their lives in search of freedom from violence and persecution.

Cuban attempts to reach the U.S. by boat have also increased ,significantly mirroring historic numbers of Cubans arriving at the U.S.-Mexico border. Policymakers across the hemisphere cannot avert their gaze from these humanitarian crises and must commit to advance humane border and regional migration policies. The LA Declaration executed at the Summit of the Americas provides the framework for a cooperative approach to stabilizing affected communities and managing migration in a humane and orderly way. This ongoing terrible loss of life highlights the dire urgency of moving from framework to implementation.

3. D.C. and NYC Mayors Seek Federal Assistance to Support Migrants

The mayors of Washington and New York City have requested federal aid to assist with the arrival of immigrants who have been put on buses by state officials in Texas and Arizona. In response to this costly publicity stunt by the states’ Republican governors, Washington's Mayor Muriel Bowser asked the Department of Defense for National Guard assistance to help with the influx: “With pledges from Texas and Arizona to continue these abhorrent operations indefinitely, the situation is dire, and we consider this a humanitarian crisis,” Mayor Bowser stated.

Around 6,000 migrants have come to Washington from these states since President Biden attempted to end the Trump era Title 42 policy, which used the pandemic as a rationale for blocking migrants from seeking asylum at the border. Some 2,800 of the migrants have gone directly to New York City from Washington, leading NYC Mayor Eric Adams to also request federal assistance with housing and other costs.

Some volunteers who have been assisting the migrants are concerned that the request for National Guard assistance may further traumatize already vulnerable immigrants. Other critiques leveled at the mayors contend that the influx does not constitute an “emergency” requiring military support. The larger point, however, is that Governors Abbot and Ducey are playing political games with people’s lives rather than working toward real solutions.

4. Potential Progress on Solutions for “Documented Dreamers” and Farmworkers

Despite the grim political dynamics infecting policy debates around immigration, a glimmer of incremental bipartisan progress emerged around “documented Dreamers” and immigrant farm workers. Documented Dreamers are children whose parents came to the United States on temporary high-skilled-worker visas but who are stuck in multiyear green-card backlogs. The catch is that if those kids turn 21 while their parents are waiting for a green card to become available, they are no longer eligible to remain in the U.S. They must “self-deport” or effectively become undocumented.

This month, however, the House of Representatives approved an amendment to the 2023 National Defense Authorization Act that would protect dependent children of green-card applicants and employment-based nonimmigrants who face deportation when they turn 21. It remains to be seen whether the Senate keeps this measure in the bill, but if it doesn’t, the U.S. will have another strike against it in the global competition for talent. Most parents won’t pursue a job in a country that may force their kids to leave.

In addition, several House and Senate Republicans voiced support for immigration solutions to the farmworker labor shortage. The House has already passed the bipartisan Farm Workforce Modernization Act, which would create a path to permanent status for undocumented immigrant farmworkers while reforming the H-2A temporary agricultural worker program. The Senate has been in bipartisan negotiations over this legislation for nearly a year, but the bill has not yet been introduced. The renewed focus by several Republican members of the Senate provides some hope that a compromise can be reached now or during the lame duck session that can attract 60 votes. All 50 Democratic senators are expected to support it.

We will be doing everything in our power to elevate the urgency facing our DACA-mented family, friends, and colleagues in the weeks and months to come. We will also look for every opportunity to pry open a legislative window to move reforms forward. Over the long term, however, it has become unmistakably clear that our central imperative is to disrupt the false narrative that migration represents a threat to the country and to remind America that our current stature and future success depend on remaining open, inclusive, and welcoming.

In solidarity,

Marshall Fitz
Managing Director of Immigration