Biden’s immigration bill could wreck his majority, but Democrats have opportunity to do the right thing

I don’t understand why President Joseph Biden sent his U.S. Citizenship Act of 2021 to Congress. It has little, if any, chance of passing, and it may cause the Democrats to lose their majorities in the House and the Senate.

Moreover, it will make many people very angry if it causes a major surge in illegal immigration while we are still in the midst of a deadly pandemic.

The Democrats have a slim majority of 10 seats in the House and in the Senate, an even split requires Vice President Kamala Harris’s vote to break ties in the Democrats’ favor. They will need ten Republican votes to stop a Republican filibuster in the Senate.

This is a very precarious situation.

According to Gallup, the president’s party almost always suffers a net loss of House seats in midterm elections.

It won’t take much for the Democrats to lose their majority in the House, just a net loss of five seats — and just a single seat in the Senate.

This means that Biden may only have two years to pass immigration legislation.

The legalization provisions in his bill are particularly problematic.

Biden’s plan would permit undocumented people to apply for temporary legal status and then for green cards five years later. Dreamers, TPS holders, and immigrant farmworkers may be eligible for green cards immediately.

Migrants from all over the world would come to the United States for a chance to participate in this legalization program, and Biden has taken steps to ensure that ICE will leave the vast majority of them alone once they have reached the interior of the country.

His Acting ICE Director Tae D. Johnson has given ICE employees enforcement guidelines that establish priority categories, and — with a few exceptions — ICE officers will need preapproval to undertake an enforcement action against an undocumented alien who is not in one of the priority categories:

1. National Security. Aliens who have engaged in or are suspected of engaging in terrorism or espionage, or whose apprehension is otherwise necessary to protect national security.

2. Border Security. Aliens who are apprehended at the border or a port of entry while attempting to enter unlawfully.

3. Public Safety. Aliens who have been convicted of an aggravated felony or an offense involving active participation in a criminal street gang or a transnational criminal organization.

To obtain preapproval, an officer must “raise a written justification through the chain of command, explaining why the action otherwise constitutes a justified allocation of limited resources, and identify the date, time, and location the enforcement action or removal is expected to take place.”

This completely replaces the deportation grounds written by Congress, which may violate the separation of powers provision in the Constitution.

Moreover, the guidelines virtually guarantee that the aliens being legalized would be replaced by a new group of undocumented aliens in the not too distant future, which is what happened after the implementation of the legalization program in the Immigration Reform and Control Act of 1986 (IRCA).

This may be the primary reason there has not been another major legalization program since 1986.

According to Sen. Tom Cotton (R-Ark.), the bill has “no regard for the health or security of Americans, and zero enforcement.”

Even Democrats are concerned about the health risk of a surge in illegal immigration during the deadly COVID-19 pandemic.

According to Rep. Vicente Gonzalez (D-Texas), “The way we’re doing it right now is catastrophic and is a recipe for disaster in the middle of a pandemic … If we go off the rails, it’s going to be bad for us … Biden is going to be dealing with a minority in Congress if he continues down some of these paths.”

The Republicans will do whatever they have to do to prevent Biden’s legalization programs from being established.

If the Democrats are serious about immigration reform, they need to split Biden’s bill into individual pieces of legislation that have a realistic chance of being passed, which apparently is what House Speaker Nancy Pelosi (D-Calif.) intends to do.

A proposal

The Democrats could start by focusing on helping aliens who were brought to the United States illegally by their parents when they were children — the “Dreamers.” This is a very sympathetic group. Even former President Donald Trump wanted to help them.

Trump offered a legalization program for 1.8 million of them, but the Democrats would not agree to the concessions he demanded. The most intractable demand was his insistence on eliminating chain migration to prevent the Dreamers’ parents from obtaining lawful permanent resident (LPR) status from them after the Dreamers had become citizens.

Apparently, the Democrats were holding out for a DREAM Act like the American Hope Act of 2017.

My proposal is to give up on trying to pass a DREAM Act and work on creating a place in the Special Immigrant Juvenile (SIJ) program for aliens who were brought here illegally when they were children. This humanitarian program was established to provide LPR status for undocumented alien children who should not be returned to their own countries because they have been abused, abandoned, or neglected by one or both of their parents.

Modifying the SIJ program to include undocumented aliens who were brought here by their parents would not benefit their parents, so chain migration would not be an issue. The SIJ provisions take away a participant’s right to confer immigration benefits on his parents when he becomes an LPR: INA §101(a)(27)(J)(iii)(II) states that, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”

The Democrats could have helped these children during former President Barack Obama’s administration. From January 2009 to January 2011, they had a strong majority in the House, and until Scott Brown’s special election in 2010, a filibuster-busting majority in the Senate. But they failed to take advantage of that opportunity.

It would be a shame if they miss the opportunity this time too.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.