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Will White House Immigration Wish List Tank Emerging DREAMer Momentum in Congress?

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Will White House Immigration Wish List Tank Emerging DREAMer Momentum in Congress?

Trump at a rally in Phoenix.

Then-candidate Donald Trump speaks at a campaign rally in Phoenix, Arizona. (Photo: Gage Skidmore)

Will the Trump administration’s lengthy wish list of restrictive immigration proposals sent to Congress earlier this month upset growing bipartisan momentum on Capitol Hill to provide protection to unauthorized immigrants who were brought to the United States as children? Or does it represent an early-round negotiating gambit? Political strategists, immigration activists, journalists, and others were seeking an answer after the administration appeared to do an about-face over what top Democratic congressional leaders had billed as an agreement they struck with President Trump during a White House dinner in September to protect DREAMers without tying the measure to construction of a border wall.

The administration on October 8 named a new price for finding a legislative solution to grant legal status to qualified unauthorized immigrants brought to the United States as children, issuing a long list of demands, including building a border wall, blocking funding for “sanctuary” cities, and stripping protections from unaccompanied child migrants. The immigration principles document, drafted by senior advisor and immigration hardliner Stephen Miller, suggests the administration is keeping its eye firmly on the President’s political base. And Trump reaffirmed his demand for the wall during an October 16 news conference. “We need a wall in this country. You know it. I know it. Everybody knows it. We have to have a wall. So that will be part of it,” he said when asked about the prospects for passing the DREAM Act or similar legislation.

The congressional push to protect DREAMers was precipitated by the administration’s announcement on September 5 that it would unwind the Deferred Action for Childhood Arrivals (DACA) program, an Obama administration initiative that has granted work authorization and relief from deportation to roughly 800,000 unauthorized immigrants. Currently, about 690,000 people are protected by DACA, and thousands will begin to lose that protection beginning in early March, with the administration’s decision to halt the acceptance of new applications and renewals for the two-year status. With the clock ticking and the fate of DREAMers uncertain, members of Congress from both political parties have introduced bills modeled on the original DREAM Act that would provide legalization to qualified unauthorized immigrants who entered the United States in childhood, provided they meet certain educational, military service, or work requirements.

While complicating negotiations on Capitol Hill, the administration’s demands face an uphill battle. Not only have the administration immigration proposals met stiff resistance from Democrats, they also expose multiple schisms within the Republican Party. And party leaders will have to decide whether their demands should be more proportional in scope to DREAMer protections or should encompass their entire swath of desired immigration reforms. There are influential Republicans on both sides of the tactical argument: Sen. Thom Tillis (R-NC), the sponsor of one Republican proposal to protect DREAMers, has advocated for a narrower approach, while House Judiciary Committee Chair Rep. Bob Goodlatte (R-VA) maintains that Congress must address all the underlying drivers that lead to illegal immigration.

Given such fundamental differences within the GOP let alone with Democrats, the prospects of an immigration bill moving as a standalone, through regular order, appear highly unlikely. The only near-term path forward thus appears to be inclusion in upcoming must-pass legislation, such as the stopgap spending bill required to finance the government beyond December 8. With Democratic votes essential to pass the spending bill, particularly amid anticipated opposition by Republican deficit hawks, if Democrats manage to insert the DREAMer protections, Trump will face the choice of keeping the government open or appeasing his base.

Key White House Proposals and Political Problems

The administration’s wish list includes a number of hotly debated proposals, among them:

A Wall at the U.S.-Mexico Border

Republicans are divided, mostly along geographic lines, on the issue of a wall along the U.S.-Mexico border. Lawmakers close to the border, where talk of a wall has created significant concern among landowners, businesses, and others, are advocating a more targeted, high-tech border security plan instead of a physical barrier along the entire border. Rep. Michael McCaul and Sen. John Cornyn, both Texas Republicans, for example, have introduced border security bills that include provisions to construct barriers, but ultimately emphasize the importance of a layered strategy of border defense. Rep. Will Hurd (R-TX) introduced a bill that focuses almost exclusively on implementing technological solutions.

Further from the border, Republican lawmakers have been more willing to accede to Trump’s belief that a physical barrier is critically important. For Democrats, spending billions on the wall is a non-starter. Equally importantly, they are seeking to deny Trump a symbolic victory on an issue that has been central to his rhetoric on immigration—and more broadly to his election.

Reforming Legal Immigration

The Trump proposals to reform legal immigration include ending “chain migration” by limiting family immigration to spouses and minor children, implementing a points-based system that favors immigrants with certain skills and educational backgrounds, and eliminating the diversity visa program.

These proposals expose the huge divide between the nationalist, populist wing of the Republican Party that has been energized by the Trump election and the traditional pro-business wing. The populist faction believes not just in ending illegal immigration, but in curtailing all immigration. Thus, lawmakers such as Sens. Tom Cotton (R-AR) and David Perdue (R-GA) have advocated for bills such as the RAISE Act, which would cut annual green-card issuances by half and introduce a points-based immigration system. Other bills would eliminate the diversity visa and reduce family-based green cards.

This is a dramatic departure from a decades-long stance held by the GOP. While Republicans have vigorously opposed illegal immigration, they have generally favored legal immigration as economically beneficial. Even as the anti-immigration wing gains traction, at least 13 House Republicans have introduced bills this session that would expand legal immigration pathways. For example, Rep. James Sensenbrenner (R-WI), generally considered a hardliner on interior enforcement, has sponsored a bill that would increase the number of temporary work visas issued to nurses.

Unaccompanied Child Migrants

The White House proposal would remove certain important protections for unaccompanied children arriving at the U.S. border from noncontiguous countries. It would redefine who qualifies as an unaccompanied child migrant, make these children eligible for expedited removal, replace a court-ordered settlement setting standards for child detention, and limit who qualifies for the Special Immigrant Juvenile visa.

Limiting protections for unaccompanied child migrants has been a priority for many lawmakers since the 2014 surge in arrivals of Central American children and families at the U.S.-Mexico border. The number of unaccompanied children arriving at the southern border has fallen in recent years, from 67,000 in fiscal year (FY) 2014, at the peak of the surge, to 38,000 for the first 11 months of this fiscal year.

Many lawmakers—and top Trump administration officials such as Attorney General Jeff Sessions—attribute the increase in arrivals of unaccompanied children to the Obama administration’s launch of DACA in 2012, and will likely argue that codifying DACA may incentivize further arrivals of unaccompanied youth. However, the uptick began prior to the creation of DACA, and was triggered in part by push factors in Central America that include gang violence and economic insecurity, as DACA advocates have pointed out.

Nevertheless, current law providing protections for unaccompanied minors continues to enjoy bipartisan support, and any attempt to dismantle the Trafficking Victims Protection Reauthorization Act of 2008 will likely face challenges on both sides of the aisle. The law, which established the current system providing special treatment for unaccompanied child migrants from Central America, passed with bipartisan support. In September, the Senate approved a reauthorization of the law championed by a bipartisan group of senators, led by Chuck Grassley (R-IA) and Dianne Feinstein (D-CA).

Even if Congress were to end existing protections for unaccompanied minors, it would face formidable legal obstacles in implementing them. For example, the 1997 Flores agreement, the product of legal and constitutional challenges originally filed against the Reagan administration’s treatment of children in detention, obliges the government to hold each child in the “least restrictive” setting, including releasing them if appropriate. Any legislative change would have to provide for a standard of care that meets the settlement’s terms or it would otherwise face immediate legal challenge.

Further, even if all unaccompanied child migrants are placed in expedited removal proceedings (currently only those from Mexico can be), they will still be entitled to asylum screening, known as credible fear interviews. Expanding these interviews would only contribute further to an already backlogged asylum system.

Interior Enforcement

Interior enforcement also features prominently in the administration’s immigration proposals, which include restricting grants to so-called sanctuary cities, expanding detention, increasing resources to speed up and increase removals, broadening the grounds for which noncitizens may be deported, and cracking down on visa overstayers.

There is much more agreement among Republicans on interior enforcement, fitting within their “law and order” platform. Democrats appear to have drawn a hard line at including interior enforcement in any DACA deal. Senate Democratic Leader Charles Schumer has said that he and House Democratic Leader Nancy Pelosi were clear with Trump in their September meeting that they were open to incorporating border security into a deal—but not interior enforcement, which is more challenging for them politically.

Implementation of any interior enforcement priorities would face legal and resource hurdles. Federal courts in California and Illinois have already ruled against some attempts by the administration to withhold federal grants from “sanctuary” jurisdictions. There is also a practical limit to how many arrests, detentions, and removals U.S. Immigration and Customs Enforcement (ICE) can carry out without significant increases in resources. The immigration courts already have a backlog of more than 630,000 cases.

Perhaps most importantly, the spate of recent state laws and city ordinances limiting cooperation with federal authorities on immigration enforcement has limited ICE’s ability to arrest removable immigrants.

E-Verify

The administration also proposed making employment verification mandatory nationwide, along with strong enforcement measures against noncompliant employers. Most Republicans support mandatory use of the E-Verify system in tandem with any sort of legalization program, and Democrats appear open to considering it.

However, libertarian-leaning lawmakers and some Democrats oppose mandatory E-Verify as an encroachment on civil liberties. During the 2013 comprehensive immigration reform debate, Sen. Rand Paul (R-KY) opposed adding a photo database to E-Verify, which many see as the best way to fix existing flaws, arguing that it would violate privacy rights. Democratic critics have objected to problems in E-Verify that can impede the hiring of U.S. workers, and the fact that, in the absence of a simultaneous legalization program, it would push a large number of workers out of the workforce or into the underground economy.

Deal or No Deal?

Looking forward, it is likely that the issue of legislating protections for the DREAMer population will come to a head in the lead-up to the December 8 deadline to pass an appropriations bill to keep the government running. With 60 votes required in the Senate to pass a spending bill, Republicans will need the votes of at least eight Democrats to avoid a government shutdown—giving Democrats leverage to attach protections for DREAMers. In addition, if the other legislative reforms the President has been pushing for—tax reform now at the top of the list after the failure to repeal Obamacare and stalled momentum on infrastructure improvements—do not pass, he will face greater pressure to achieve a legislative victory, which would further strengthen Democrats’ negotiating hand.

Congressional Democrats will lose their moment of maximum leverage after early December. And with midterm elections looming in 2018, the path to consensus narrows as Republicans will find it harder to compromise. As it is, immigration already is being wielded as a weapon by conservatives looking to mount primary challenges to establishment Republicans from the right.

Longer term, brinksmanship between the administration and Democrats over immigration would set the stage for a prolonged fight that could expose Republican vulnerabilities and mobilize Hispanics and the broader Democratic base heading into midterm elections. It may also activate a larger constituency, as polls show a majority of voters supports shielding DREAMers from deportation.

For now, many in the immigrant community are keeping their eyes fixed on March 6, 2018, the date the DACA phaseout is scheduled to begin in full and when progressively larger numbers of DACA recipients will lose their protection from deportation and work authorization. Trump has said that he may revisit his administration’s decision to terminate the program if a legislative fix remains elusive. With the President and Attorney General having called the program unconstitutional, and a range of states having threatened legal action against DACA, a legislative fix would seem the only way to definitively resolve the status of a population viewed by many lawmakers in both parties as particularly sympathetic.

National Policy Beat in Brief

President Trump Issues Third Travel Ban; Federal Judge Stays Its Implementation. As the 90-day travel ban for nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen expired September 24, President Trump replaced it with an indefinite ban for nationals of five of the six original countries, as well as three additional countries: Chad, North Korea, and Venezuela. (Sudan was dropped from the ban.) However, on October 17, the day before the new restrictions were scheduled to take effect, federal judges in Hawaii and Maryland temporarily blocked most of the new order.

Under the now-paused ban, the countries were placed under varying levels of restrictions. No new immigrant visas would have been issued to nationals of these countries, but the only two whose nationals were completely banned from traveling to the United States were North Korea and Syria. On the other end of the spectrum, only Venezuelan nationals who work for certain government agencies and their immediate family members, were barred from tourist and business travel. The policy proclamation said that these new limitations were based on a Department of Homeland Security (DHS) worldwide review of each country’s security measures and levels of information sharing with the U.S. government, as well as an overall evaluation of terror risk by country.

The judge in Hawaii found that the challengers, led by the state of Hawaii, were likely to succeed because the administration had failed to sufficiently show that admitting nationals of these countries would be detrimental to U.S. interests, and because the order unlawfully discriminated based on nationality. The administration said it will appeal the ruling. Meanwhile, the judge in Maryland blocked a slightly narrower portion of the ban, for people with bona fide relationships to U.S. persons or entities—the same injunction the Supreme Court put on the second travel ban earlier this year. The Maryland judge ruled that the plaintiffs, led by the International Refugee Assistance Project, were likely to succeed on the grounds that the ban was intended to discriminate against Muslims—though the Hawaii judge did not address this issue. Limits on visas issued to North Korean and Venezuelan nationals were not affected by the Hawaii and Maryland rulings.

Separately, the Supreme Court vacated one of two lawsuits on its docket challenging the administration’s second travel ban, and ordered that it be dismissed as moot. The case was originally filed in Maryland by organizations representing refugees, which argued that unconstitutional bias against Muslims prompted the March executive order. With the Supreme Court’s action, all lower court rulings in this case will be erased and cannot be cited in future court opinions. This includes the Fourth U.S. Circuit Court of Appeals ruling that relied largely on public statements from the President and his team to show that the ban likely violated the Establishment Clause of the First Amendment. The Supreme Court said it was mooting the case because the section it challenged—the temporary travel ban, not the pause on refugee admissions—was no longer in effect. Some legal observers speculate the high court will therefore also vacate Hawaii’s challenge to the second ban once the refugee ban expires on October 24. Justice Sonia Sotomayor was the only dissenter, saying she would have left the lower court rulings in place.

Trump Sets Refugee Admissions Cap for FY 2018 at 45,000 and Terminates the Central American Minors (CAM) Refugee Program. In a report to Congress, President Trump on September 29 set the cap on refugee admissions for fiscal year (FY) 2018 at 45,000, the lowest level since the refugee resettlement program began in 1980. While the overall numbers are a far cry from the 110,000 level the Obama administration set for FY 2017, the regional proportions of refugees to be admitted are similar to those for FY 2017. Of the total, 19,000 slots will be allotted to refugees from Africa, 17,500 for the Middle East and South Asia, 5,000 for East Asia, 2,000 for Europe, and 1,500 for Latin America and the Caribbean. Nearly 54,000 refugees were admitted in FY 2017.

In the same report, the Trump administration announced it would phase out the Central American Minors (CAM) Refugee Program in FY 2018. The program, created by the Obama administration, allowed parents lawfully present in the United States to request refugee status for their children residing in El Salvador, Guatemala, and Honduras. In August, the administration ended the part of the program that allowed certain minors in El Salvador, Guatemala, and Honduras ineligible for refugee status to be considered for humanitarian parole into the United States. According to media reports, 13,000 applications for refugee status through the CAM program were pending at the beginning of August.

ICE Targets “Sanctuary” Cities for Enforcement. U.S. Immigration and Customs Enforcement (ICE) agents made nearly 500 arrests at the end of September in a four-day operation that targeted cities limiting their cooperation with ICE, so-called “sanctuary” cities. Most arrests were made in Philadelphia and Los Angeles, two cities that are suing the administration for seeking to reserve certain federal grants only for jurisdictions that fully cooperate with ICE. Sixty-four percent of those arrested (317) had criminal convictions, about one-quarter of them for driving under the influence. ICE argues that because agents are not able to access jails and get only limited communication from law enforcement officials in these jurisdictions, they are forced to make arrests in communities to fulfill their mission.

Removals from the Interior of the United States Rise by One-Third Over 2016. From January 22 to September 9, ICE removed 54,000 noncitizens arrested in the U.S. interior, a 34 percent increase compared to the same period last year, but well below the nearly 200,000 removed from the interior each year from 2008 to 2011. The new number represents more than one-third of total removals this year, which stood at 143,000 by September. In the first six months of 2017, overall removals fell 13 percent compared to the same period in 2016. This decrease is mostly due to the decline in apprehensions at the Southwest border, which were down 47 percent from January to August, compared to the same period in 2016. There were 97,000 ICE arrests through September.

DHS Ends Temporary Protected Status for Sudan, Gives 18-Month Extension to South Sudan. DHS will terminate Temporary Protected Status (TPS) for nationals of Sudan on November 2, 2018. Sudan has been designated for TPS since 1997, and an estimated 1,040 Sudanese nationals currently hold TPS, which grants them work authorization and protection against deportation. DHS argued conditions had sufficiently improved in Sudan, and that while the armed conflict that originally inspired the TPS designation continues, violence no longer prevents the safe return of Sudanese nationals to all regions of the country.

DHS also announced it will extend TPS for South Sudanese nationals until May 5, 2019. The designation for South Sudan has been in effect since 2011 and benefits about 70 people. The next announcements about TPS designations—affecting significantly larger populations—will come in November, regarding the designations of Honduras, Nicaragua, and Haiti, whose current extensions expire in January 2018.

U.S. Suspends Visa Processing in Cuba and Turkey. The United States has suspended almost all visa processing in Cuba and all nonimmigrant visa processing in Turkey, in response to separate incidents. The United States suspended visa issuance in Cuba on September 29 in response to mysterious health problems that U.S. diplomats and intelligence officers have been experiencing in Cuba, including brain damage and hearing loss. Although the United States is not blaming the Cuban government for the illnesses, it withdrew all nonessential personnel from its embassy, leaving one person in charge of the consular section, which is dealing with a backlog of more than 100,000 visa applications. If the pause in visa processing continues, this could be the first year that the United States fails to meet its commitment, agreed to in a 1994 deal, to accept 20,000 Cuban immigrants annually.

The United States suspended visa processing in Turkey on October 7 after a Turkish employee at the U.S. embassy was arrested for having alleged connections to plotters of a failed coup in July 2016, which the employee has denied. Turkey has asked the United States to reconsider its decision.

USCIS Receives 13,500 Applications for 15,000 Additional Temporary Work Visas. On September 15, U.S. Citizenship and Immigration Services (USCIS) stopped accepting applications for H-2B temporary nonagricultural work visas for FY 2017. Although the 66,000 cap was reached in March, Congress delegated to DHS the authority to increase the number of visas available, which it did in July. For the 15,000 it made available, it received 13,500 applications. The decision to increase the cap may have come too late in the season for some employers: It did not take effect until July 19, meaning that the opportunity to hire H-2B workers for the summer season had largely passed.

Federal Court Sets New Requirements for Immigration Bonds. The Ninth U.S. Circuit Court of Appeals on October 2 upheld a district court ruling in Hernandez v. Sessions that when setting bond amounts, immigration judges must consider both a detainee’s ability to pay and possible alternatives to detention. The ruling requires the Justice Department to hold new bond hearings for all noncitizens detained in the Central District of California within 45 days. The minimum bond an immigration judge can issue is $1,500, and there is no set maximum.

Supreme Court Hears Arguments in Immigration Cases. The Supreme Court is hearing two cases related to immigration this session, both re-arguments from last year, indicating that the justices were likely split on both cases. One, Jennings v. Rodriguez, addresses whether immigrant detainees who are fighting for relief in court are entitled to periodic bond hearings. During oral arguments in early October, several justices seemed skeptical of a lower court’s ruling that bond hearings should be held every six months for every detainee, rather than setting the frequency based on the context of the case. The other case, Sessions v. Dimaya, deals with whether the term “crime of violence,” which constitutes a deportable offense for noncitizens, is vague enough as to violate due-process rights. A lower court ruled in 2015 that the term was too vague. Rulings in both cases could come as late as June 2018.

State and Local Policy Beat in Brief

California Further Restricts Cooperation with ICE. On October 5, California Governor Jerry Brown signed into law a suite of 11 bills that offer protections to unauthorized immigrants. The centerpiece was SB 54, the California Values Act, which prohibits local law enforcement agencies from complying with ICE detainers, though it still allows local agencies to facilitate the transfer of an inmate into ICE custody in some cases; limits when local law enforcement officers can notify ICE about inmates’ release dates; prohibits 287(g) agreements, which deputize law enforcement officers to act as federal immigration officers; and prohibits law enforcement agencies from providing office space for ICE agents in jails. SB 54 builds on California’s TRUST Act, which went into effect in 2014, and prohibited local law enforcement agencies from complying with ICE detainers, with some exceptions, such as when the individual on whom ICE has placed a hold has been convicted of a serious or violent felony.

Brown also signed bills that prohibit landlords from using tenants’ immigration status against them, bar employers from allowing ICE agents to enter a worksite absent a judicial warrant, and prohibit jails from signing new agreements with the federal government to house immigration detainees.

In response to these bills, ICE Acting Director Thomas Homan released a statement calling California a “sanctuary state” and issuing a threat: “ICE will have no choice but to conduct at-large arrests in local neighborhoods and at worksites, which will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”

More of Texas “Anti-Sanctuary” Law Allowed to Go into Effect. A three-judge panel on the Fifth U.S. Circuit Court of Appeals reversed some of the injunctions a district judge had issued against much of Texas’ “anti-sanctuary” SB 4 that took effect May 7. The appellate panel lifted the injunction on the provision that says local entities may not prohibit law enforcement officers from assisting with immigration enforcement. It also allowed to take effect the measure that says local entities and law enforcement officers may not adopt or enforce policies that limit the enforcement of immigration laws; however, it left in place the injunction on endorsing such policies. Finally, the court lifted the injunction on the provision that requires compliance with all ICE detainers—but noted that this provision should not be interpreted to mean that local law enforcement agencies must continue to detain everyone for whom ICE issues a detainer.

Even so, Travis County Sheriff Sally Hernandez, who had previously declined to detain some noncitizens pursuant to detainers, said her department would now honor all detainer requests. The Texas Attorney General also responded to the court’s opinion, announcing that his office would begin accepting complaints against officials believed to be in violation of SB 4 provisions.

Colorado’s Supreme Court Strikes Down Law Making It a Felony to Transport Unauthorized Immigrants. The Colorado Supreme Court reversed the conviction of a man under the state’s 2006 human-smuggling law, concluding SB 206 is preempted by federal law; that is, Congress, through the Immigration and Nationality Act, intended to govern the laws surrounding smuggling, so Colorado should not make its own laws in this area. The state law defines human smuggling as transporting an unauthorized immigrant in exchange for money and made it a state felony. There is a difference between Colorado and federal law, however: The federal law requires proof that the people being smuggled were in the country illegally, whereas Colorado’s law does not have a similar requirement. Colorado’s attorney general said that she plans to appeal to the Supreme Court.

Washington State Sues Private Detention Company. Washington Attorney General Bob Ferguson is suing GEO Group, one of the two biggest private detention companies in the United States, arguing that the company is violating state minimum wage laws by paying detainees $1 a day for their participation in ICE’s voluntary work program. Although there are state minimum wage law exemptions for government prisons and jails, private detention facilities are not exempt. The case echoes one filed in Colorado earlier this year, also against GEO Group, wherein a class of detainees argued that they were forced to work in the “voluntary work program,” which they claimed was a violation of federal anti-slavery laws.

Los Angeles Sheriff’s Department Provided Information to ICE, Despite Statements to the Contrary. The Los Angeles Sheriff’s Department allowed ICE to set up an office in the jail and made false statements that it did not provide information on inmates’ release dates to ICE beyond what was publicly available, according to a report by the department’s Office of Inspector General. Several times this year, sheriff’s staff provided ICE officers with internal, nonpublic information about the specific time an inmate would be released, rather than the 24-hour window in which the inmate would be released, which is available to the public.