Immigration Update: March 2024

Welcome to Emerson Collective’s Immigration Update, a monthly newsletter that seeks to make sense of important immigration-related developments by situating them in broader policy, political, and human contexts.

The six construction workers who tragically died when Baltimore’s Francis Scott Key bridge collapsed provide a solemn reminder about the invisible heroes toiling to build and maintain the nation’s roads and infrastructure. Given the outsized contributions that immigrants make as essential workers in our economy and society, it is unsurprising that these six construction workers were all immigrants from Central America. Filling potholes along a major highway while most of us slept is paradigmatic of the willingness of newcomers to do whatever it takes in pursuit of the American dream. As Senator Van Hollen (D-MD) put it, this tragedy is a powerful “reminder of the contributions and sacrifices that our immigrant community makes in our state and in our country.”

This month we highlight: court rulings that upheld a successful legal migration program and blocked implementation of an anti-immigrant state law; potential new executive actions; and ongoing efforts by the Administration to address the root causes of migration.

Now, let’s dive in.

Marshall Fitz
Managing Director of Immigration

IN TWO CASES, FEDERAL COURTS PROTECT THE ADMINISTRATION’S IMMIGRATION POWERS

Rejecting State Challenges to the Cuban, Haitian, Nicaraguan, Venezuelan (CHNV) Parole Program

As we described in prior updates, immigration “parole” allows the executive branch to admit people to the U.S. on a temporary basis for urgent humanitarian reasons or if it would provide a significant public benefit. With Congress deadlocked on reforming our rigid, outdated immigration laws, the Biden Administration has used parole to flexibly respond to evolving migration challenges. For example, in April 2022 DHS established the highly successful Uniting for Ukraine (U4U) parole program, authorizing individuals and organizations in the U.S. to sponsor Ukrainians fleeing war with Russia for a two-year period.

Building on that model, DHS created a similar process for Venezuelans in October 2022 and expanded it in January 2023 to include nationals of Cuba, Haiti, and Nicaragua, now generally referred to as the CHNV program. As with the U4U program, individuals admitted under the program must be sponsored by U.S. residents and millions of Americans have raised their hands. Although only 30,000 nationals from across the four countries can be admitted to the U.S. each month, the impact it has had in reducing undocumented migration from those countries has been remarkable.

The CHNV program has supplanted chaotic, disorderly migration that has pressured our border with controlled, regulated legal pathways where everyday Americans are helping welcome and integrate newcomers into their communities. This is what successful migration management looks like.

Nonetheless, Texas and 20 states took umbrage with the program and filed a lawsuit seeking to block its implementation (while declining to challenge the parole program for Ukrainians). Judge Tipton, a federal district judge who has blocked other Biden Administration immigration policies, was widely expected to sustain the legal challenge. However, he surprised many with his ruling that “Texas did not establish that it has suffered harm due to the CHNV parole programs and therefore did not have standing to bring its claims.” This means that the program can continue to operate as a model of successful migration management.

Halting Texas Efforts to Assert Control Over Immigration Policy

At the same time Texas sought to block the innovative, popular, and successful CHNV program, it passed its own legislation attempting to assert power and enforce its own immigration policies. The Texas law, SB4, would have criminalized migrants and authorized state authorities to deport them. It was originally blocked from implementation by a district judge, but then was briefly in effect while it bounced between the Supreme Court and the 5th Circuit Court of Appeals on a technical, procedural question.

On March 26, the 5th Circuit acknowledged the constitutional defects in the legislation, which would have undoubtedly created chaos, fear, and encouraged racial profiling. The Chief Judge of the 5th Circuit concluded that SB4 would overturn 150 years of Supreme Court jurisprudence regarding the relative powers of state and federal governments over immigration. The court blocked the law from taking effect, ruling that SB4 directly conflicted with the fundamental axiom that the “power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power.”

Not only was the legislation constitutionally flawed, in the hearing before the 5th Circuit panel, it became apparent that Texas was wholly unprepared to implement the law if it had gone into effect. In other words, while Texas sought to block the CHNV program that has established an orderly process for admission and integration, it simultaneously has advanced extreme policies that would create more disorder. Rather than seek to collaboratively manage the historic migration pressures at the southwest border, Texas continues to pursue a divisive, counterproductive agenda.

CALLS FOR INNOVATIVE EXECUTIVE ACTION GROW LOUDER

A central theme in these monthly updates is that a truly functional immigration system will remain out of reach until Congress finds the political will to build it. To understand how outdated the system is, consider that the last legislative overhaul occurred before the internet was publicly available. The unsurprising result is that successive administrations have been required to leverage their executive branch authority to address evolving challenges. (It is also one of the reasons our team pursues regional system reforms and subnational integration measures that are not dependent on Congress.)

Those challenges have become even more acute over the last several years. The failure of Congress to establish broader, more flexible legal pathways has made it exceedingly hard for the Biden Administration to respond to both historic levels of migration in the hemisphere and critical labor shortages across the country. With no legislative relief on the near horizon, the Administration has come under increasing pressure to exert its executive power to alleviate dysfunction and unfairness.

Last month, 19 senators sent a letter to President Biden specifically asking him to “take all available actions to streamline pathways to lawful status for undocumented immigrants, providing certainty to the American businesses, communities, and families who rely on them.” This builds on the outline of executive actions our colleagues at the Immigration Hub and other organizations have suggested should be prioritized this year.

Among the four specific requests outlined in the senators’ letter is an eminently sensible idea: enable the 1.1 million undocumented spouses of U.S. citizens to obtain work permits. Additionally, industry leaders have launched a campaign backing this proposal because they understand that many of these spouses could add immediate relief to labor shortages. The bipartisan American Business Immigration Coalition Action (ABIC Action) co-hosted an event with the Latin Chamber of Commerce in Las Vegas to discuss the “shortage of workers in blue-collar industries … and encouraging lawmakers to expand work authorization for immigrants,” including for the spouses of U.S. citizens.

The devastating bridge collapse in Baltimore tragically highlights the essential role immigrants play in our collective success. Creating access to work permits for those who want to work should be uncontroversial in this economic moment. Policies like granting work permits to spouses of U.S citizens are an opportunity for the Administration to deliver relief for American families and for the nation’s economy.

WHITE HOUSE WELCOMES GUATEMALAN PRESIDENT ARÉVALO AND INVESTS IN ADDRESSING ROOT CAUSES OF MIGRATION

The Administration continues to advance a new strategic approach to migration management through regional diplomacy and investment in the hemisphere. On March 25, Vice President Kamala Harris welcomed the newly elected President of Guatemala, Bernardo Arévalo, to discuss efforts to address the drivers of irregular migration, battle corruption, and boost economic development.

During the visit, Harris announced an additional $170 million pledge for development, economic, health, and security assistance. In parallel, she joined an event with the Partnership for Central America in support of Central America Forward, a public-private partnership that addresses the economic drivers of migration while incorporating a focus on good governance and labor rights. Alongside global companies like Millicom, Chobani, Mastercard, and Microsoft, as well as Guatemalan foundations and corporations, they announced more than $1 billion in new private sector commitments.

President Joe Biden also met privately with President Arévalo to discuss governance, effective migration management, and the importance of upholding democratic processes. Despite the complex social, economic, and security context across the Americas, Arévalo’s government can reignite a spirit of democratic change across Central America, representing a viable alternative to authoritarian governance models.

The new pledges to strengthen the U.S.-Guatemala relationship and address the root causes of migration could contribute to stabilization initiatives and promote conditions that allow people to stay and integrate in the country that they choose. The involvement of stakeholders including governments at the national and local levels, the private sector, multilateral financial institutions, and civil society will be critical in supporting scalable welcoming and integration policies. Both the American and Guatemalan governments’ emphasis on devising regional responses to migration in the Americas highlights the recognition that regional migration cannot be addressed through U.S. border policy alone and requires meaningful engagement across Latin America.