Immigration reformers' hopes dashed as Senate fails to act

A hand holds a sign reading "Defend DACA / #DACAHOPE" over a butterfly design as a crowd protests outside the Supreme Court.

Dec. 22, 2022 Updated 12:18 PM PT

WASHINGTON — Congressional leaders who wanted to strike a deal on immigration reform before the end of the year saw their hopes dashed Thursday.

Democrats saw the lame-duck session between the November election and the start of the new Congress as the last chance to pass significant legislation before they lose their majority in the House. They had hoped to attach immigration reforms to a $1.7-trillion package to fund the government that passed the Senate Thursday afternoon.

Lawmakers considered bills that would have offered pathways to citizenship for farmworkers, for Afghans evacuated to the U.S. since last year and for so-called Dreamers brought to the United States as children. Another proposal would have removed caps on the number of green cards granted each year to people from any given country.

None of those bills advanced.

Instead, supporters of immigration reform found themselves playing defense. On Thursday morning, senators only narrowly defeated an amendment by Sen. Mike Lee (R-Utah) that would have indefinitely extended the use of Title 42, the public-health code measure that allows border agents to expel migrants without considering their claims for asylum.

“I am not giving up on you — don’t give up on me. We are going to fight for you to win,” Sen. Richard J. Durbin (D-Ill.) told dozens of Dreamers at a rally last week, his voice cracking with emotion.

The moment illustrated the frustration some lawmakers felt as another opportunity to bring changes to the immigration system came and went.

Perhaps the broadest and highest-profile of the reform proposals that failed to advance came from Sen. Kyrsten Sinema of Arizona, a former Democrat who is now an independent, and Republican Sen. Thom Tillis of North Carolina. Their legislation would have bolstered border security funding and expanded the use of detention facilities in exchange for a pathway to citizenship for roughly 2 million immigrants brought to the U.S. as children.

Tillis and Sinema had reportedly been in talks for months about the deal, which also would have extended Title 42.

Although some immigrant advocates had been cautiously optimistic about the draft legislation, House Democrats including Rep. Lou Correa (D-Santa Ana) said they could not support it, and House Republicans including Rep. Chip Roy of Texas said securing the border should not be coupled with any pathway to citizenship. The bill’s text was never made public, and time ran out for a floor vote.

The Border Patrol union’s support for Tillis and Sinema’s framework showed promise for achieving a compromise, said Cris Ramón, an independent global migration analyst.

“One of the major things getting in the way is there’s a sense that whatever they introduce has to fix the border on the first try,” Ramón said. “The border is incredibly dynamic — it’s always changing and shifting.”

After a federal judge ordered that Title 42 be lifted by Wednesday, the Department of Homeland Security braced for a rise in migrant crossings at the U.S.-Mexico border. But on Monday the Supreme Court issued an order temporarily keeping the Trump-era pandemic measure in place.

At the Lutheran Church of the Reformation in Washington on Dec. 15, Durbin told Dreamers gathered for a rally that he had tried to find the votes for legislation to protect their status, but that he had fallen short with Republicans.

Durbin wrote the first version of the DREAM Act in 2001 in an effort to establish a path to permanent residency for immigrants who were brought to the U.S. as children. More than a decade later, then-President Obama established the Deferred Action for Childhood Arrivals program, widely known as DACA, to temporarily protect qualified immigrants from deportation.

Juliana Macedo do Nascimento, deputy director of federal advocacy for United We Dream and a DACA recipient herself, said she was disappointed in the lack of progress during the lame-duck session. A federal court case challenging DACA is expected to reach the Supreme Court, where advocates predict the conservative majority will declare the program illegal. Macedo do Nascimento said she worries Congress will wait until the last minute to act to protect people like her.

“I feel like they sometimes forget that they’re dealing with real people’s lives,” she said. “It feels really dehumanizing.”

Another bill that never got a floor vote would have phased out annual limits on the number of employment-based green cards awarded per country of origin, while doubling the per-country cap on family-based green cards.

The current limits have disproportionately affected people from India and China, who make up a significant portion of immigrants with visas for high-skill work and often wait decades to become permanent residents; as well as people from Mexico and the Philippines, who face backlogs for family sponsorship.

Critics warned that eliminating the per-country caps without increasing the number of green cards available each year would result in most going to applicants from a few countries at the expense of those from all other countries. In a letter to her Congressional Black Caucus colleagues this month, Rep. Yvette D. Clarke (D-N.Y.) wrote: “I cannot support efforts that would perpetuate the current inequities in our immigration system.”

During House floor debate on Dec. 13, Rep. Zoe Lofgren (D-San Jose) said the Congressional Research Service had concluded the bill would have no adverse effect on applicants from Africa or the Caribbean, and called on Congress to move the immigration system “away from its racist origins.” The bill was removed from the voting schedule the next day.

One bill that did make it to a vote was the Veteran Service Recognition Act, which would have protected immigrants who served in the U.S. military from deportation and made it easier for those who were deported to return. But after the bill cleared the House early this month, the Senate did not take it up.

Efforts to include significant immigration provisions in the federal defense bill were also unsuccessful, including a proposal to protect so-called documented Dreamers when they turn 21 from aging out of qualifying for lawful status under their parents’ visas.

Another proposal that didn’t advance was the Afghan Adjustment Act, which would have provided additional security vetting and a pathway to citizenship for more than 70,000 Afghans resettled in the U.S. under temporary status that expires after two years.

That bill garnered broad bipartisan support, as well as the backing of more than 40 well-known retired military officers, who wrote in a letter to Congress on Saturday that failing to enact it would make the U.S. less secure. “Potential allies will remember what happens now with our Afghan allies,” they wrote.

Advocates had held out hope that protections for Afghans would be included in the $1.7-trillion funding measure. Lawmakers attempted to fold in as many items on their legislative wish lists as possible without hindering the omnibus package from advancing.

The Senate package provides more than $86 billion to the Homeland Security Department, with increased funding for border technology, maritime security and migrant apprehensions, according to a summary released by House Appropriations Committee Chair Rosa DeLauro (D-Conn.).

The bill includes money to hire 300 more BorderPatrol agents, provides $133 million to U.S. Citizenship and Immigration Services for refugee processing, rejects the Biden administration’s attempt to cut immigrant detention capacity by more than 25% — instead maintaining 34,000 beds — and earmarks $800 million to help nonprofits and local governments with the arrival of migrants in places such as El Paso.

The omnibus also extended the Special Immigrant Visa program, which offers green cards to Afghans who worked with the U.S. government, and raises the cap on those visas by 4,000, to 38,500 total. But it doesn’t include protections for Afghans already here, many of whom don’t qualify for the program and must apply for asylum or risk deportation.

Advocates also hoped to slide a last-minute Senate bill into the omnibus package to offer a pathway to citizenship to people who have worked as farmworkers for more than a decade.

The Affordable and Secure Food Act, unveiled last week, would have modified and expanded the H-2A visa program that U.S. employers can use to hire seasonal migrant laborers — allowing them to employ some workers year-round. It would have also required agricultural employers to use E-Verify, the electronic system that screens employees for legal work authorization.

But the bill lacked public Republican support and was opposed by the American Farm Bureau. In a speech Monday night on the Senate floor, Sen. Michael Bennet (D-Colo.) urged his colleagues to take action.

“Are we really going to accept, as a definitional matter for this country, that we want fields filled with indentured servants?” he said.

Supporters of the Afghan Adjustment Act pushed for a long-shot floor amendment to include its protections in the omnibus package, but it didn’t get a vote.

The Senate voted down two amendments that would have extended the use of Title 42 — the one by Lee and another by Sinema and Sen. Jon Tester (D-Mont.) — and an amendment by Sen. Ron Johnson (R-Wis.) that would have restricted the use of federal funds to transport migrants within the U.S.

Although hope for change this session may have passed, the need for an immigration overhaul is becoming increasingly urgent, said Kristie De Peña, director of immigration at the Niskanen Center, a Washington think tank.

“We haven’t hit the breaking point, but there will be a cliff,” she said. “If we can get that close [to achieving change], it’s clear that the policy solutions are out there.”

Immigration reformers’ hopes dashed as Senate fails to act

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