Immigration Update: November 2022

November’s midterm elections shifted the political landscape with significant implications for immigration policy. Most clearly, it has undermined the prospects for creating a path to legal status for Dreamers in the next Congress. The likely next Speaker of the House has vowed to oppose any relief for DACA recipients, while the Obama-era program is hanging by a thread in the courts. This has added urgency to bipartisan efforts to secure a legislative solution during the lame duck session before the new Congress is sworn in.

November also had some positive movement for immigration policy. The asylum-eviscerating Title 42 rule was struck down by a federal district judge, although a temporary stay and efforts by Republican Attorneys General to meddle in the case may delay implementation of the court order. Additionally, this year’s COP27 agreement officially acknowledged—for the first time—the significant role climate change plays in driving human displacement and global migration.

• Lame-duck action: Before a new Congress takes hold, senators and advocates work against the clock to pass pro-immigration measures

• Title 42 Rule struck down in federal court, deemed “arbitrary and capricious”

• COP27: Resulting agreement takes important first step in acknowledging realities of climate-driven displacement but falls short on solutions

Lame-Duck Session Scramble: A Bipartisan Deal on Immigration is Achievable, Though Tough Concessions Will Be Required on Both Sides of the Aisle

Although the American public soundly rejected MAGA-fueled political extremism and defied projected “red-wave” expectations, the midterm election results nonetheless imperil the prospects for pro-immigration legislation in the 118th Congress. Republicans narrowly won back the House and the front-runner for Speaker, Rep. McCarthy (CA), has vowed to block action on an issue of increasing urgency—legal status for Dreamers. The DACA program will almost certainly be struck down by the courts, meaning only Congress can provide a solution for the 600,000 DACA recipients and the hundreds of thousands of similarly situated young immigrants.

This political reality has propelled an effort by senators from both sides of the aisle to negotiate a package of measures during the lame duck period. A potential bipartisan deal would likely include some combination of: relief for Dreamers; visa reforms and legal status for agricultural workers; protections for Afghan refugees; and border security measures plus asylum processing changes.

Time, of course, is extremely short. This Congress is likely to wrap up in the next three weeks with a pile of legislative initiatives still on deck. But the prospect of achieving a legislative breakthrough that advances the priorities of both parties around immigration and the border has fueled hopes that compromise can open a path to the 60 votes needed to overcome an inevitable Republican filibuster.

Our Dreamer colleagues and friends who are every bit as American as all of us except in their paperwork, deserve far better than what our elected leaders have delivered for decades and now this lame-duck session is arguably DACA’s last chance. All eyes are on one burning question: can the legislative brokers reach a deal? We will provide every ounce of support to their process, but should they fall short, we will remain unyielding in our commitment to resolving this injustice.

Our friends at United We Dream are asking you to text “DACAINFO” to 877-877 to demand action RIGHT NOW!

Title 42 Termination: Federal Judge Deems the Rule ‘Arbitrary and Capricious’

On November 15th, a federal court delivered an important win for immigration advocates by striking down Title 42, a Trump-era rule that for two and a half years has blocked access to asylum for most migrants arriving at the border and between ports of entry. Premised on the government’s statutory authority to take extraordinary measures during a public health emergency, the rule quickly morphed from a public health measure into a border control crutch. Allowing Border Patrol to immediately expel people without processing them reduced operational pressure on the agency, but it did so by violating our legal and moral obligation to allow people to request asylum.

In a scathing ruling, Federal District Court Judge Emmet Sullivan concluded that use of Title 42 to block access to asylum was ‘arbitrary and capricious’ and thus unlawful. He ordered the government to terminate Title 42 procedures on the border and to reinstate newly-arrived migrants’ ability to seek asylum. Very reluctantly, however, he delayed the effect of the ruling for five weeks to provide the administration time to adjust its operations.

According to DHS, the stay will allow for “orderly transition to new policies” at the border. The reality, however, is that the agency lacks the infrastructure, personnel, resources, and policy flexibility to fairly and humanely manage the additional pressures that will come from a lifting of Title 42.

Whether Title 42 will actually terminate on December 21 or not remains an open question. Republican Attorneys General from 15 states have filed a request to intervene in the case to oppose the termination. Although the intervention appears baseless, this and related litigation maneuvers may well delay termination of the rule.

COP27 Agreement Acknowledges the Link Between Climate Change and Human Displacement for the First Time in History—But Now What?

Egypt hosted the 27th United Nations Climate Change ‘Conference of the Parties’, better known as COP27, in the coastal city of Sharm el-Sheikh over nearly two weeks in November. While this year’s resulting agreement traditionally signed at the end of the Conference did not yield an established consensus around climate-driven migration, participating signatory countries did acknowledge “human displacement” for the first time as part of the breakthrough agreement on “loss and damage”:

Section 22. Notes with grave concern … the growing gravity, scope and frequency in all regions of loss and damage associated with the adverse effects of climate change, resulting in devastating economic and non-economic losses, including forced displacement and impacts on cultural heritage, human mobility and the lives and livelihoods of local communities, and underlines the importance of an adequate and effective response to loss and damage.

This recognition of climate change’s role in forced migration is an important, but insufficient, step. Acknowledging this obvious linkage now requires a reckoning with some hard but fundamental questions: What mechanisms can be developed to ensure that displaced people can move with rights and dignity? How will the global community reach consensus on sharing responsibility for receiving and supporting climate driven migrants? How will the needs, interests, and finances of communities impacted by these flows be redressed?

These are challenging topics, but the global community can no longer shy away from them. And we will be pushing for greater attention to global solutions at next year’s COP28 in the United Arab Emirates from November 30-December 12, 2023.

As we enter the final month of a challenging year, I want to thank all of you for the leadership, friendship and inspiration you have provided in our collective endeavor to move the world in a more just direction. Progress at the macro level often feels insufficiently incremental, but striving each day alongside and on behalf of others makes a difference at both the cosmic level and for individual human beings. It is impossible to know what twists and turns lie ahead for these challenging issues, but as we push, it is empowering to know that each of us are but one from many, e pluribus unum.

In solidarity,

Marshall Fitz
Managing Director of Immigration