DACA / BORDER Immigration Framework - Updates

The 2022 immigration framework circulated by Senators Sinema and Tillis is making headlines across the political spectrum. The framework includes: 

• Border security funding of at least $25 billion and upwards of $40 billion
• A minimum staffing level at 20,500 Border Patrol agents
• 14% pay hike for border patrol agents 
• Hire an additional 600 officers annually to staff the ports of entry
• Pathway to citizenship for two million for Dreamers - undocumented immigrants who came to US before 2018 as minors, including DACA recipients - as long as they have been in the U.S. since 2018, were under 18 when they arrived and were no older than 38 in 2012
• Title 42 in place for a year, with metric components in place for an extension
• "Make investments" in USCIS officers and immigration judges and courts for faster case processing 
• Recapture of unused employment visas. 

The two positive developments have been that it is under attacked by extremes on both ends- those who see any type of amnesty as a non-starter, and those who want amnesty for all or no one.  The moderates and more centrists groups seem to support the bill. 

Vote math seems to be there. Between retiring Senators, Senator Tillis as well as anti-MAGA and DACA supporting GOP Senators such as Lisa Murkowski and Susan Collins, the elusive 10 GOP Senators needed to pass the bill in Senate is not far fetched. Even though some members of the most progressive wing of House Democrats might step back, but a supermajority approval of Senate is bound to garner decent support from House GOP representatives, at least more than enough to offset House Democrats who choose not to support the bill. 

Really there are two potential snags. Smaller snag is any last minute poison pill for either side that ends up derailing the whole vehicle. This may include insistence on bringing the bill as a standalone instead of an amendment to a must spending bill like Fiscal Year Financial Plan (Or omnibus/continuing resolution) and NDAA. Standalone track is requires debate time, deliberation, and committee clearance, akin to landing a jumbo jet on a private runway meant for bushplanes given that Congress is scheduled to adjourn in 7-8 days. 

And this segues into the bigger potential snag - time. Framework has been finalized but not the actual text. Immigration reform of any scale or type is not going to have the support of even moderate GOP senators if they don't get reasonable heads up and time to read the bill. Unless text is finalized in the next couple of days and circulated, the bill is heading for a cliff. 

Hopefully, it is understood by both sides that the stakes have never been higher. Political math in the Senate to get enough GOP Senators is solid due to newly reelected as well as retiring anti-MAGA senators, who face little to no political fallout for supporting "amnesty". The next Congress, divided among extremist GOP House and Democratic Senate, will be a graveyard for any immigration bill. 

It's really now or never. 

 

Border, Asylum, and Citizenship for Dreamers - prospects

Senator Sinema has taken a lot of flack for being a bipartisan lawmaker in this partisan environment. Behind the doors, however, she was instrumental in garnering GOP support for Democratic bills such as infrastructure and gun control. And, as per the tsunami of news reporting, Sinema has apparently struck a deal on immigration with Republican Senator Tillis.

It is indeed different this time because in January 2023, a hard right-wing GOP takes the House killing any hope for immigration compromise in the next Congress, or even after that. And it is during next Congress, DACA will most likely make it to SCOTUS where it will be struck down as unconstitutional.

That time is of the essence is for the first time being acknowledged by Republicans who are eager to secure border and extend Title 42. 

What is happening behind closed doors is unknown. The key sticking point is whether a fully hashed out bill with complete language make it to the floor before end of the year.

For everything else, math's there.

GOP Republicans in play for DACA in December 2022.

 

DACA-fix looking unrealistic #DACA #Dreamers

The beat isn't positive, that's for sure. Mainstream media for the most part are acknowledging that DACA fix is one of the agenda items for Democrats, but reporters consider it as a "wish list" and something that is "not going to happen" because there is no "coordinated support for it." Senator John Thune (Number 2 in GOP Senate) also confirmed that a "DACA fix" isn't "going anywhere." Given the inflammable nature of the subject and less than 3 weeks to deal with, it was never a walk in the park. 

But the grave reality that DACA-fix is all but dead starting January 2023 when GOP takes the House with rejuvenated clout of the extreme right wing, seemed sufficient enough in the beginning for the hope to carry on. The elusive 10 Senate Republicans who hold all the power TODAY (to break filibuster in the Senate to pass legislation) will lose it all next year. Whether they vote for DACA or not, Kevin McCarthy (assuming he is the Speaker) isn't losing his speakership by putting a DACA bill on the floor. Next year, immigration is DOA (dead on arrival). 

Republicans know this. 

Democrats know this.

DACA Dreamers know this.

All hope mustn't be lost yet. Senator Durbin, while on the Senate floor yesterday, reiterated the urgency of a narrow bill for Dreamers (something Democrats have hesitated thus far) and also confirmed that he "is encouraged" by the conversations that are taking place. Activists for DACA have housed themselves in DC this week to convene with Democrats and Republicans in the Senate to "read the room" on DACA. 

Democrats need to focus on drafting a bill that can garner support of 10 GOP members (including 4-5 of those who are retiring and have no political fallout for supporting "amnesty"). 

This and next week will give us an accurate picture of where things are and where they are headed. 

For the DACA recipients, let's hope for the best (but prepare for the worst). 

 

DACA Dreamers face a Do-or-Die December

It is critical and, unfortunately, superbly difficult for Democrats to pass anything during lame duck session of 2022 for DACA dreamers. 

It is critical because Republicans take over the House in January 2023 with slim majority giving their hawkish Freedom caucus a massive sway in next Congress. It is not unimaginable to think that the GOP (especially the extreme faction of the party) House - the Jim Jordan House - is not going to let any "amnesty" be voted on in the next Congress even if DACA dreamers lose the battle in the high court and in turn their jobs, livelihood and means to live in the country. They just don't have the incentive to do it.

Between the-very-close then and now is December 2022 - the prime month of the lame duck session. As I have mentioned in my previous post, if Democrats can't close the deal in December of 2022, DACA dreamers face a doomsday scenario in next Congress. Citizenship for them will not be secured at least until the following Congress in 2025 (and that's assuming Democrats take the hold of Congress - which is highly unlikely). 

Even when the stakes for 800,000 DACA recipients couldn't be higher, it is going to be tough. In fact, next to impossible. Lame duck precedence is against DACA. Contentious legislation is usually avoided during this period as it is considered a transitional phase to the new congress and our political leaders start packing their bags for the Christmas holidays. 

Lame duck session is blink of an eye. Give or take, ongoing lame duck is around 2 weeks (10 days) of working calendar. Usually, congressional leaders need longer to just settle in their offices. Meeting with GOP colleagues, striking a deal, having a complete draft for a bill - that is way too much for this short period. Doable, but highly unlikely. 

GOP Senators are not incentivized to do anything for DACA during lame duck, other than goodwill and morality. And that doesn't bode well for DACA dreamers. The reality is that GOP senators who end up supporting an amnesty bill during lame duck (or anytime after that) will face an exceptional backlash from the extreme base of their party in Senate and especially the House in next Congress. Already the far-right news outlets and commentators have started hurling rocks and setting towns on fire at the whiff of some GOP senators just engaging in preliminary talks on this subject during lame duck. The names of those Senators have been placed on the "wanted" list. It is an uphill journey. Most of the GOP senators are ostensibly blaming the situation at the border for preventing them from signing off on any amnesty bill (knowing that DACA has nothing to do with border), it is really the backlash part that they are terrified of. Lindsey Graham, past proponent of Dreamers, at least admits it.

The only sliver of a light at the end of the tunnel is from the 4 out of 5 GOP senators who are retiring and have shown compassion towards DACA dreamers. Senator Blunt from Missouri, who enjoys great deal of goodwill with his Senate colleagues according to @PabloReports, is quite forthright in supporting DACA citizenship during lame duck for as long as the bill is limited to DACA. Given these senators are retiring and are immune from backlash, they may be more willing to support such an inflammable bill. The remaining 6 GOP senators would have to be those whose ability for reelection does not depend on the far-right flank of the party. They will have to step up and take this one. Again, where's the incentive? 

Really the only incentive for GOP senators is compassion. They, of all people, know their House colleagues better than anyone. They know the Jim Jordan House is the graveyard for immigration "amnesty" bill. It is this knowledge that may sway some surprising names in favor of DACA bill in December of 2022. 

Democrats have a massive role to play here which is another big problem for DACA. Historically, Democrats have used the term Dreamer quite broadly (covering as many as 4 million individuals) and tried to piggy back on DACA for amnesty for millions more. They will have to drop that strategy. GOP Senators are smarter. Democrats' job is to stick to amnesty for DACA recipients, no more no less. Keep it simple, clean, crisp, clear. Especially because it's really the livelihood of DACA that is on the line. Remaining undocumented population, albeit living by no means ideally in the country, will still continue their status quo. Democrats should try to find a bill around that which works for their GOP Senators. 

If anything comes to fruition for DACA, it will be attached to one of the year-end must-spending bills as an amendment. Some extreme Democratic House colleagues may try to use immigration to hijack must-spending bills but that won't work with Republicans. Bullying the opposition is not going to be the answer. A sober compromise is going to be. 

All of the above has to play out in December 2022. You do the math.

After lame duck session, Dreamers (DACA) don't stand a chance for years.

 It is important for the Democrats to realize that lame duck session is their only chance for getting pathway to citizenship passed for DACA recipients. If John Boehner could disallow vote on the bipartisan immigration bill back in 2013 that was passed by a veto-proof majority in the Senate, it is fair to say that Kevin McCarthy will most certainly follow that path come 2023. In the past 10 years, few would say that immigration debate has become less inflammable. 

More importantly, the 10 republicans, who stand between DACA recipients and a pathway to citizenship must acknowledge this fact. Their House colleagues are bound to reject any bill with a pathway to citizenship in 118th Congress, regardless of border security provisions tagged to it. John Boehner didn't care back in 2013 about the fact that Senate had thrown all the money it could on border security to appease their House colleagues. The poison pill was the pathway to citizenship. And if Republicans tried jamming an immigration restrictive bill with border security provisions without granting citizenship to some already within the country, Biden will veto it. 

So… the 10 Republicans, fateful 10, must know that any meaningful immigration bill - that helps them address border issues - must happen now during the lame duck. Even though some may say that lame duck is no time for major legislation. On the contrary, the lame duck session is especially for difficult but right bills to pass with little political fallout. 

A roller coaster named DACA (Deferred Action for Childhood Arrivals)

It took me 10 minutes to explain DACA to a life insurance agent, who'd been in the industry for over 20 years. "In my entire career I've never seen such a steep revision to initially quoted premiums." I paraphrased his remarks on the underwriter's decision to revise the quote for my monthly premiums for a million dollar, 30 year term life insurance from 67 to 248 bucks - a sweet 270% increase - based solely on my immigration status. "Does it matter for the underwriter to know that I have been in the United States for over 20 years and have never left the country once - not even for a brief trip." I told him as my final response. "It really matters on the card you have." He said. I could sense frustration with the decision and sympathy towards me. He knew the deal was off. 

This is what DACA is. It is a state of limbo that few understand. 

It is not a visa. It is not permanent residency. It is not citizenship. And also, it is not nothing.

Check out the immigration website for details but, at a high level, DACA is an executive policy that grants protection from deportation and, more importantly, work permits to those who came to US as minors by June 15, 2007. You need to renew the grant every 2 years. Obama put it in place in 2012 for folks like us after years, if not decades, of failure of Congress to pass any immigration law - the only way to grant permanent residency or green cards.

From the get-go, DACA was on shaky grounds. Question of whether a President has the authority to grant work permits was being debated. DACA ended up in courts and eventually a district judge deemed it as unlawful and stopped new enrollments but kept renewals in place. 

Now, fifth circuit has claimed it unlawful and for some weird reason continued to maintain status quo - i.e. no new DACA approvals, only renewals. Though the decision will be appealed and make its way to the supreme court for the second time (first time was about its implementation), and if, against all odds, supreme court sides with DACA (which it won't), there is the specter of a future President reversing the policy, easily.

In other words, DACA isn't going to stay for long. 

As many times DACA has seen the faces of disgruntled judges as it has seen Congress (particularly, Democrats) conjure some solution that has failed to garner sufficient support for it to see the light of day.  

Congress has tried everything. Green cards for Dreamers, Registry Date revisions, comprehensive immigration reforms in many forms, citizenship for DACA in military, and so on. But where is the solution in the form of a bill that grants green cards to all "active DACA recipients and those who would qualify for it"... and that's it?

Big non-profits, bullhorns for undocumented folks at the steps of the Capitol, have so far come out to use DACA as a pulpit to drag the dead horse of massive immigration hauls, last of its kind being passed in 1986 - a different world. You see I can use a million dollar in donations received for the eradication of homelessness and use about 800Gs to pay myself an administrative fee, and still have the whole shindig being called as non-profit. These "non-profits" really don't want a solution. They want a fight to fight over in their board rooms. Solving the problem isn't incentivized. Trying to solve it, is. 

With cell phones and AR-15s, seems like common sense is also checked out prior to entering special sessions where Democrats discuss legislative priorities, especially immigration. In a political environment where DACA - arguably the lowest hanging fruit in the immigration fight - is making its way to the guillotine, some of the measures proposed by Schumer's party are simply put batsh*t crazy.

Either it's the citizenship for "Dreamers, TPS, and essential workers", with two of the three critical words being so flexible that even the proponents of the bills can't seem to agree on their definitions. Who is a Dreamer? It covers DACA recipients, plus some say who came to US prior to turning 18 even as recently as by December 2021 (see US Citizenship Act), others cap the entry criteria to 4 years prior to enactment of the law. Who is an essential worker? There is the classical, written definition, of essential workers - like agricultural workers, utility workers, doctors, fire fighters, etc. Then there is the abuse of that definition. You get me an affidavit stating that I have hung out on your farms, and I become an essential worker.

These days you hear a lot about registry date. That's another number. Registry is an existing congressional law where anyone who came to US prior to Jan 1, 1972 (read more here), is eligible for a shiny green card. Democrats would like to revisit this and not just propose an updated cutoff date, but make the whole thing a "moving registry". That is, if you came to US X number of years ago, you may get yourself a green card. 

What we have yet to hear is the vote on the original question - a bill to provide permanent residency for DACA recipients, and those qualify for DACA. Why is it then Democrats aren't putting forth this rather simple, straightforward bill up for a vote? They may say that they just don't have the support of Republicans. Well, let's let them vote against it, because being the party in power it is at least incumbent to bring to the floor a bill that is hard to vote against. 

Circling back to the key about DACA, that it is on its way out. The program has changed lives, around 800,000 of them. And not just any lives but of those who have spent decades of their formative years in the States, studying, working, "growing". Spending 15 years of your life, for example (minimum number of years a DACA recipient had to have been in the country as of 2022 to qualify), from age 6 to 21 plays different than for a person who has been here from age 50 to 65. DACA is now not just an immigration issue, it is a humanitarian issue.

What happens next? Well, Republicans will control the less forgiving and more reactionary chamber - the House, at least, in 118th Congress (starting Jan 2023). Any chance of a meaningful legislation for DACA will be quite slim from that point on. I hate to say it, but if DACA is headed for the guillotine next year and the Democrats are poised to lose absolute Congressional control, then the only real chance for permanent residency for DACA is during the lame duck, i.e. last two months of 2022.

Midterm elections '22 will decide, as always, the lame duck dynamic though. The most likely scenario (not by far, though) is that Democrats lose the House but keep the Senate. This is the best chance for DACA as well. The 10 Republican senators of current Congress have to know that the House in next congress will vote, let alone pass, jack on DACA. This may be the best chance for them to secure some common sense border control provisions and in return give the relief to DACA recipients, which some of the Republicans actually are sympathetic towards.

The second most plausible outcome in November '22 is that Democrats lose both chambers. This will be the worst for DACA. Since they would have revamped negotiation power come Jan 2023, Republicans would want to not do much on DACA during lame duck, especially also when DACA is still on a ventilator and not pronounced dead. Then, come 2023, Republicans aren't even going to talk on DACA until and unless Supreme Court declares it as unlawful and DACA recipients in thousands are losing their jobs. This inevitable decision will probably not make it to the fore till the end of next year, at least. That's another year lost and we are about to enter the crazy 2024, the presidential election year. The best case in this worst case scenario is that Republican Senators allow a vote on a narrow, rigid, bill that provides some protections to DACA recipients (DACA extensions as a congressional action without pathway to citizenship is not off the table also!). This is to gain support of some House republicans. And then Kevin McCarthy, House Speaker, will not allow a vote on any such bill (just like John Boehner did).

I won't write much about the other possible scenarios (D's keep House and lose Senate, or, D's keep Congressional control) because they are almost next to impossible to occur. In both scenarios, talks on DACA will lose steam and spill into 2023 and if they do, then again those will hinge upon Supreme Court. 

To cut long story short, if no action is taken on DACA in the last two months of 2022, then a pathway to citizenship for DACA recipients is exceptionally unlikely under Biden administration, regardless of Supreme Court's decision. Democrats, please, please, get to work.