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Immigration Update: January 2023

In late December, in a final act of political obstruction before handing the reins to a new Congress, Senate Republicans blocked a bipartisan agreement that would have invested in border security infrastructure and established a path to permanent status for Dreamers. Unfortunately, prospects for resolving the inhumane legal limbo of Dreamers during the freshly elected 118th Congress are slim. The new House leadership has committed to an anti-immigrant agenda that will forestall compromise or progress in favor of impeachment investigations and sensationalist “border invasion” hearings.

While Congress stalls on reform, people continue to move. For better andworse, other branches of government are stepping into the breach. The Biden Administration moved to create an innovative new legal migration program, but also indicated worrying regression on access to asylum. Perpetuating their obstruction agenda, Texas and 20 GOP-led states filed a frivolous lawsuit to block the new migration initiative. Mayors increasingly must deal with the fall out of failures to build a more orderly system, receiving and attempting to welcome large numbers of migrants who have become pawns in the political standoff. More on all of this in our January update:

  • Lame-Duck Push Fails, Stalling Bipartisan Progress

  • Biden Administration Initiates Good and Bad Migration Policies

  • State and Local Governments Get Involved

Congress Missed a Golden Opportunity to Solve Urgent Challenges

The end of year congressional lame-duck session offered lawmakers a unique chance to make meaningful progress on border management challenges as well as provide long term solutions for DACA holders, Dreamers, and the nation’s farmworkers. Sadly, the political obstructionists prevailed once again over these popular and necessary common-sense solutions, leaving real people facing unnecessary precarity.

Congressional paralysis has failed to diminish the urgency of making progress on these profoundly important issues. Dreamers are facing the prospect of an imminent judicial termination of the DACA program and hemispheric migration continues at historic levels, putting extraordinary pressure on our southern border. Dysfunction throughout the immigration system militates in favor of comprehensive reforms, but GOP opposition has narrowed the solution set to smaller potential compromises. Creating a pathway to citizenship for two million Dreamers and significantly expanding investment in border infrastructure for asylum processing and security represented a pragmatic middle ground, but even that could not overcome a Republican filibuster.

Tragically, notwithstanding the human toll that comes with delay, that negotiation will not be resuscitated during this Congress given commitments from the newly installed House leadership to block all legalization measures – including for Dreamers and farmworkers. Political posturing and brinksmanship with people’s lives is not leadership; it is a dangerous prelude to suffering and chaos.

Biden Administration’s (VERY) Good and (VERY) Bad Migration Initiatives

The Administration has attempted to use its executive authority to advance migration and border solutions in the face of this legislative intransigence, but a series of recently announced policy initiatives has sent decidedly mixed signals.

The Good: First, confronted by the total collapse of governance and descent into violence, triggered by the assassination of Haiti’s President in July of 2021, DHS finally agreed to redesignate Temporary Protected Status (TPS)for Haitian nationals residing in the United States. Unflinching and relentless advocacy by our partners and colleagues ensures that Haitians will be able to remain and work in the U.S. This move by the Administration was belated, but it was unquestionably the right thing to do.

Second, building on that welcome announcement, DHS initiated a broad new humanitarian parole program authorizing 30,000 nationals from Haiti, Nicaragua, Cuba, and Venezuela to enter the country on parole each month, effective immediately. Premised on the innovative and highly successful Uniting for Ukraine program that has enabled over 82,000 Ukrainians to enter the United States temporarily, this new initiative will enable up to 360,000 people to enter legally from those four countries annually. To be eligible, nationals must be sponsored by a U.S. resident and of course pass security checks, etc. This is a major down payment on a key pillar of the historic LA Declaration on Migration and Protection: expanding legal options for migrants to travel through safe, orderly processes rather than being forced into irregular, dangerous routes.

Third, the Administration announced two significant changes to the refugee resettlement program. The first important change will triple the number of refugees eligible for resettlement from Latin America and the Caribbean, which will expand dedicated protection avenues for up to 20,000 vulnerable individuals each year.

The second big innovation enables private sponsorship of refugees for the first time. After years of advocacy by refugee resettlement experts, the Administration announced Welcome Corps, enabling groups of at least five people to raise $2,275 per refugee to support them for their first 90 days in the United States to help them access basic necessities including housing, food, and medical care. As with other refugees resettled in the U.S., they will be eligible for permanent residency and citizenship. The State Department hopes 5,000 refugees will be sponsored through this program in the first year.

Each of these measures demonstrates a willingness by the Administration to explore creative new models for managing migration in a safe, humane, and orderly way. They also indicate the seriousness of the Administration’s commitment to implementation of the Los Angeles Declaration on Migration and Protection.

The Bad: Unfortunately, those positive developments in support of a new migration paradigm were counterweighted by other initiatives announced at the same time.

First, the parole program which is an intrinsically positive step, was unnecessarily offset by securing a commitment from Mexico to accept an equal number of “expulsions” or “turnbacks” (under the legally and ethically dubious Title 42 authority) of nationals from the parole program countries. While Title 42 remains in effect pending Supreme Court review, Mexico will receive up to 30,000 monthly Title 42 expulsions of Cubans, Haitians, Nicaraguans, and Venezuelans attempting to enter the U.S. southern border: 30,000 monthly parole slots offset by 30,000 monthly turnbacks.

The ostensible objective behind this tradeoff is to discourage irregular migration to the U.S. border for purposes of seeking asylum and to encourage orderly migration through legal channels. Funneling migration into more orderly legal channels is a worthy goal but linking this policy to an expansion of Title 42 poses risks to fundamental human rights. Foreclosing access to asylum is foreclosing a current legal avenue – we need to expand, not diminish lawful channels.

Second, a still more troubling policy was hinted at but not formally announced in this release of new border and migration initiatives. The Administration indicated that it is considering a new regulation that would presumptively bar anyone arriving at our southern border from seeking asylum.

The essence of this rule would be to bar individuals from requesting asylum in the U.S. if they pass through another country that offers asylum but neglect to apply there first. Because (1) Mexico has a functioning asylum system, and (2) anyone traveling by land to our southern border must pass through Mexico, then (3) everyone who does not apply for asylum in Mexico would be barred from requesting protection at our southern border.

The administration argues that this would not be an actual “ban” because the process offers a narrow safety valve: individuals would still be able to schedule an asylum application appointment at a port of entry through a mobile app. While this shows the Administration’s understandable desire for a more orderly asylum process, in practice it subverts our international commitment to enable people arriving on our soil to seek protection. It does exactly what the Administration criticized the Trump Administration of: turning our backs on people seeking protection that we have guaranteed under law.

Both measures – Title 42 expansion and the looming regulation – also undermine one of the Administration’s most prominent achievements in this space: the Los Angeles Declaration on Migration and Protection. The Declaration seeks to manage and order migration in the Americas by sharing responsibility and coordinating with regional partners. Attempting to force people back down to other countries by turning our back on international commitments is the opposite of sharing responsibility; it is externalizing our responsibility either unilaterally or through heavy-handed diplomacy. And it calls into question the extent of the Administration’s commitment to the Declaration they are so rightly proud of.

State and Local Leadership Weigh In

In response to the Administration’s series of border and migration executive actions, a number of states were determined to have their say. Continuing a pattern of obstruction in service of their anti-immigrant agenda, Texas and 20 other states filed a lawsuit challenging the new parole program. Many observers have noted that the states issued no such legal challenge to the original Uniting for Ukraine program upon which this is based. It is hard to see their implicit distinction as anything other than preferencing nationals from “good” over “bad” countries.

In a much more pragmatic venue, the issue of large scale arrival of migrants in unprepared cities also took center stage at the U.S. Conference of Mayors in Washington, D.C., this month. Cities, as on most issues, are on the front lines and seek solutions not soundbites to the challenges confronting them. In this instance, what cities need – and what bipartisan mayoral leadership called for – is increased funding and operational support to ensure the growing numbers of arriving migrants can be efficiently welcomed and successfully integrated.

We see real opportunity for progress this year on systemic reforms that improve the lives of people here and those on the move. Our optimism is clear-eyed and cautious, restrained by the confounding political obstruction of Congress and a handful of states. But the executive branch, as evidenced by the innovative new parole program and continued collaboration with governments in the region, has many tools at its disposal to advance this issue. And states and localities with the political will – and more financial support – can continue to redefine what a welcoming America looks like. With your support, we look forward to advancing as much, and retreating as little, as possible this year.

In solidarity,

Marshall Fitz

Managing Director of Immigration

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