Immigration Update: October 2021

Democrats remain focused on legalizing as many people as possible through budget reconciliation. After the Parliamentarian rejected our first two proposals for a path to citizenship, Democratic senators moved to pitch legislation that would grant work permits to millions of undocumented people. Despite the initial setbacks, we are determined to walk away from the reconciliation process having secured life-changing protections for as much of the immigrant community as possible. Meanwhile, the White House released a historic report on the impact climate change has on migration, creating a vital opportunity to catalyze action on climate-driven migration. Lastly, the Department of Homeland Security is walking a tightrope by moving to terminate the Remain in Mexico program a second time while simultaneously demonstrating compliance with a court order forcing them to reinstate it. Here’s what you need to know as we head into November:

• Reconciliation Updates

• White House Report on Climate Migration

• Remain in Mexico

Reconciliation Updates

All eyes remain focused on whether Democrats can unite behind the scaled back Build Back Better bill, which includes $100 billion for a number of transformative immigration measures. As we reported in the last update, the Senate Parliamentarian, who rules on whether legislation fits within the budget reconciliation parameters, concluded on two separate occasions that green cards with a path to citizenship for immigrant communities could not be included in the bill.

While the rationales for those decisions were subjective, flimsy, and infuriating, we spent the month of September developing and advocating for an alternate option called “parole,” which could grant work permits to up to 7.1 million undocumented immigrants. Senate Democrats are pitching this proposal to the Parliamentarian now—if it qualifies, it would be the first major legalization program in over three decades. Despite not offering a direct path to citizenship, this proposal would still create transformational change in the lives of millions of people by enabling qualifying undocumented people to:

• Be protected from deportation.

• Gain a work permit that would last for five years and be renewable once (we will continue to fight for a broad path to citizenship during those years).

• Work lawfully for any employer.

• Travel domestically and internationally.

• Gain access to healthcare under the ACA and many other federal and state benefits available to green card holders after five years.

Of course, for all it provides, we lament that it falls short of the path to citizenship that Americans overwhelmingly support. We remain unwavering in our commitment to that goal—but we are on the precipice of passing the largest legalization program in history, and we will do everything in our power to realize it.

The next few weeks will be dispositive. Here’s what to expect: when the Congressional Budget Office releases a score (estimated cost) for the work permit program, Senate Democrats will submit a proposal to the Parliamentarian and ask to meet informally. If she is open to considering this option (which we expect she will be), there will be a more formal meeting with the Parliamentarian (the so-called “Byrd Bath”) where Democrats and Republicans make arguments for and against inclusion of the provisions. If the proposal—or a modified version of it—clears the Byrd Bath, it will be included in the larger Build Back Better bill, which Democrats aim to pass by the end of November.

However, if the Parliamentarian rejects this proposal—which would be her third refusal to grant vital protections to immigrants—expect the advocacy community to amplify calls to overrule her advisory opinion. It won’t be easy, and looking at it today, there isn’t the necessary unity among Senate Democrats to sustain an override. There are a number of senators who remain committed to a set of institutional norms that have long since been vitiated. Their misguided fidelity to Senate procedural norms distracts from their obligation to solve serious problems facing real people. Democrats have the power to pass the largest legalization initiative in history right now; they shouldn’t cede that power to an unelected official when millions of lives are on the line.

White House Report on Climate Migration

The National Security Council released a historic report on the impact climate change has on migration. It is the first time the U.S. government is officially recognizing and directly investigating the implications of the connection between climate change and human migration. President Biden commissioned the report in an executive order issued during the first week of his term.

The central recommendation of the paper is to establish an “interagency policy process on climate change and migration,” which would bring together U.S. government actors across disparate policy arenas to analyze existing policies and make recommendations for further action on the issue. The report offers a clear-eyed recognition that while climate change is not the primary driver of migration, it is routinely and increasingly a contributing factor—and our existing migration channels are insufficient to accommodate more displaced people in any dignified way.

The report recommends considering expanding existing protection mechanisms (like Temporary Protected Status) and developing new migration avenues; engaging with civil society and NGOs working directly with climate-displaced people; and using predictive data tools to better anticipate and prepare for migration and displacement. Most importantly, it signals that there is political will around an issue that the U.S. government has never given substantial weight. It can and must serve as a catalyst for action—for the U.S. government, governments throughout the region, a host of civil society actors, and climate scientists alike.

Remain in Mexico

On October 29, DHS issued a new memo terminating the Remain in Mexico policy, which requires asylum seekers to wait on the Mexican side of the border until their cases are adjudicated. That memo highlights the immense harm the policy caused and reiterates that after a thorough review, Sec. Mayorkas deemed it counterproductive to the systemic immigration reforms the Department aims to achieve.

The administration, however, has been forced to operate on parallel tracks: they are simultaneously moving to permanently end the program as they originally attempted while demonstrating compliance with the court order requiring its reinstatement.

If the court rejects DHS’s new effort to terminate the program, resuscitation of the program will hinge on the cooperation of the Mexican government. For its part, the Mexican government wants the U.S. to adopt policies that disincentivize more irregular migration through Mexico to the U.S. border and prevent the build-up of ad hoc migrant camps that have become preying grounds for cartels. Advocates have by and large refused to engage in conversations with the government about how to humanely restart a program that is, at its core, inhumane. Nonetheless, given the court edict, the Biden administration is working to address these foundational concerns; the US government indicated in a court filing this month that if Mexico accepts their proposal, they are prepared to restart the program in a new capacity next month.

By the time we write our November update, it is my deepest hope that we will have passed life-changing immigration protections for millions through reconciliation. As always, your continued partnership is critical in this fight, and we are so appreciative.

In solidarity,

Marshall Fitz
Managing Director of Immigration, Emerson Collective