Advocates have turned up the pressure on the Senate to pass legislation this year to establish a citizenship path for undocumented immigrants brought to the country as children, after a federal appeals court dealt yet another blow to the program that for now protects those so-called Dreamers.
But with the status quo unchanged for current recipients of the program, the ruling may still not be enough to prompt at least 10 Republican senators to strike a deal with Democrats and pass a bill in the dwindling weeks of this legislative calendar.
The program, known as the Deferred Action for Childhood Arrivals program, for years has faced political and legal challenges that threatened to end it. But court rulings, including a decision Wednesday from the U.S. Court of Appeals for the 5th Circuit, have continued to leave protections from deportation in place for Dreamers.
That has weakened incentives for Congress to act in the politically fraught area of immigration, where partisan divides have thwarted any substantive changes to law in decades. Advocates are currently eyeing the lame-duck period after midterm elections as their best chance to push through legislation.
Greg Chen, senior director of government relations for the American Immigration Lawyers Association, said whether Democrats and Republicans would be able to reach an agreement on immigration then “is really a crapshoot at this point.”
“Whether Republicans and Democrats will really step up to the plate right now and swing hard to get this done is not just a question of what is the right policy and what is good for America, but at this particular moment that the elections are coming up, it’s a political question,” Chen said.
The program, implemented by agency memo during the Obama administration, has allowed undocumented immigrants who came to the U.S. as children before June 2007 to apply for work permits and deportation protections for the last decade.
A three-judge panel for the 5th Circuit on Wednesday ruled that DACA conflicted with Congress’ intent when it crafted the immigration laws.
But the appeals court decided to leave in place an order shielding current DACA recipients from the impact of the ruling, allowing them to continue to renew their DACA status, as they have been throughout the duration of the case. The program remains shut to first-time applicants.
The court also sent the case back down to a Texas federal judge to review a more recent update to the program, making it less likely that the Supreme Court would take up the case this term.
A more sweeping appeals court decision could have forced more than 600,000 people out of work and at risk of deportation or teed the case up to be reviewed by the Supreme Court sooner, which could have offered a strong impetus for lawmakers to act, political analysts said.
“If the hope was that the decision was going to be very clear-cut — the program’s in peril, these individuals are in peril, we need to get this legislation passed — that’s just simply not the case,” said Cris Ramon, an independent immigration consultant who has worked with the Bipartisan Policy Center and other groups. “We got something that’s certainly just far more mixed than people were anticipating.”
Casey Christine Higgins of Akin Gump, who previously served as an adviser to former Republican House Speaker Paul D. Ryan on immigration, trade and other issues, said that while the threat of a Supreme Court ruling ending DACA this summer could have been enough to spur action, the latest court delay may cause the issue to languish on Capitol Hill even longer.
“What we think was a June problem is now a ‘TBD in the future’ problem,” Higgins said. “Congress loves a deadline, and this has removed the deadline.”
Calls to action
Still, congressional leaders used the ruling to call for action from the Senate, which has yet to take up a House-passed bill that would put DACA recipients and other undocumented immigrants, including younger people who came to the United States as children after 2007, on a path to permanent status.
Senate Majority Leader Charles E. Schumer of New York said Wednesday night that it is “time for Republicans to join Democrats in supporting legislation that will codify these life-saving protections and ensure Dreamers have the opportunity to finally receive the citizenship they’ve worked hard to earn.”
Democratic Whip Richard J. Durbin of Illinois, who chairs the Judiciary Committee — which oversees immigration — and is a longtime sponsor of DACA legislation, described the ruling as “a call to action for Congress.”
But neither addressed why the 5th Circuit’s ruling would make Republicans more willing to strike a deal, and Durbin’s office pointed out that Senate Republicans in the past made “unreasonable demands” to cut legal immigration and limit his legislation to only current DACA recipients.
Republicans have historically prioritized border security measures over protections for undocumented immigrants, and at least 10 Republican votes are needed to pass legislation in the evenly divided Senate.
The prospect of a Republican-controlled House next year could further heighten the pressure for Democrats to strike a deal across the aisle this year. Republicans are expected to retake at least one chamber of Congress, which could dash advocates’ hopes of sending a broad legalization bill to President Joe Biden’s desk if talks slip into next year.
Democrats might be forced to accept some border security measures from their Republican colleagues to secure the needed 60 votes to move forward with legislation under Senate rules this year.
Juliana Macedo do Nascimento, a DACA recipient who is deputy director of federal advocacy at United We Dream, said a Senate bill now would be better than one later with a Republican-led House.
“We are open to a bipartisan deal. We know that a deal with 10 Senate Republicans will still be better than a deal with a Freedom Caucus-led House,” Macedo do Nascimento said, referring to the most conservative wing of the Republican caucus.
A Supreme Court opinion in 2020 rebuffed the Trump administration’s attempt to end DACA, which delivered an unexpected win to advocates but also had the effect of lifting pressure off Congress to step in.
The stakes for the current legal fight over DACA may be higher. Unlike the early litigation, which challenged the prior administration’s decision to abruptly terminate the program, the 5th Circuit decision concerns the core legality of the immigration program. It also would be decided by a more conservative-leaning Supreme Court.
“Congress needs to be extremely mindful of the fact that the DACA program is very much at risk and that we are going to see, as a nation, hundreds of thousands of people losing their legal status,” said Chen of the American Immigration Lawyers Association.
A Senate Democratic aide familiar with immigration negotiations said there may be more urgency this year to come to a narrower deal that offers a solution for DACA recipients, rather than more comprehensive proposals overhauling the immigration system.
But if Democrats agree to legalization for a smaller population of undocumented immigrants, Republicans need to be prepared to pare back their own border security demands, the aide said.
Beyond the border politics, the Senate is also simply running out of time. The chamber does not return to Washington until mid-November, after the midterm elections, leaving it just a few short weeks to cram in a growing list of items in its agenda before the year’s end.
Macedo do Nascimento urged Congress not to wait for an eventual court ruling that ends the program for good, stressing that the issue is “not just about a policy” but also “about real people.”
“We know where this is going to go. We know it’ll eventually make its way to the Supreme Court. Whether that’s next spring, or next fall, or 2024, DACA is about to end,” Macedo do Nascimento said.