U.S. immigration is among the top issues for voters in the upcoming November 2024 elections, with border security being a major concern and millions of undocumented spouses and stepchildren of U.S. citizens remaining in the U.S. with no easy path to permanent residence.
For decades – across various Administrations – Democrats and Republicans have blamed each other for failing to address deep-rooted problems in the U.S. immigration system. The last major reform bill was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.
In the meantime, each Administration has sometimes resorted to a patchwork of rules, regulations and policies to bypass Congress in fixing a specific problem. When new relief is created to shield particular groups from deportation with grants of authorized stay and work permits, it is subject to being questioned over its legality. Extreme polarization and partisanship have made the problem worse.
The latest relief under attack is the Parole in Place program for Keeping Families Together, announced by the Biden-Harris Administration in June and implemented on August 9 through federal rule.
It offers a path to certain undocumented spouses and stepchildren of U.S. citizens – who came to the U.S. without inspection and admission – to apply for permanent residence inside the United States. Otherwise, under decades-old statutory law, they must depart for Immigrant Visa processing at a U.S. Consulate or Embassy abroad.
A departure carries risks because it triggers the 3/10-year bar to reentry to the United States, if the applicant accrued “unlawful presence” of more than 180 days. The unlawful presence begins once the applicant turns age 18 and remains in the U.S. with no authorized stay or lawful nonimmigrant status. Without an approved Form I-601 or I-601A waiver of the unlawful presence bar, the Immigrant Visa cannot be issued during the 3/10-year period.
On August 9, USCIS began accepting Parole in Place (Keeping Families Together) applications through online filing of the new Form I-131F and supporting documents. Reportedly, some applications were approved within a few days. But within two weeks of the rollout, Republican attorney generals in 16 U.S. states filed a lawsuit, on August 23, with the U.S. District Court of Texas, Eastern District of Texas, challenging the legality of the program.
Three days later, on August 26, U.S. District Judge J. Campbell Barker issued an order granting the Plaintiffs’ request for a temporary restraining order and stay of the program’s implementation for 14 days. The court noted this is renewable for good cause or upon consent, through mid-October.
The court also confirmed the DHS (USCIS) may continue to accept Form I-131F applications, even though adjudications or approvals are on pause. It further entered an expedited scheduling order for the discovery process, in which the Plaintiffs will have to address factual matters that bear on their standing (i.e. their right to sue).
The lawsuit should have been no surprise to the DHS and the Biden-Harris Administration.
It’s not clear why they waited until June to announce the program, which was just a few months before the November 2024 elections. The timing gives the Plaintiff States more reason to argue it was introduced for “blatant political purposes,” as they did in their complaint.
It’s uncertain whether the Parole in Place program will suffer a similar fate as the Obama-era Deferred Action for Child Arrivals (DACA) policy. Initially created by Executive Action (Policy Memorandum) in 2012, DACA basically provides work permits and authorized stay to certain undocumented immigrants who were brought to the United States as children.
In September 2017, DHS terminated the DACA program under the Trump Administration by a short memorandum. In a June 18, 2020, decision, the U.S. Supreme Court ruled (5-4) that DHS’ recission of DACA violated the Administrative Procedure Act because it did not give a reasonable explanation for its action. The Supreme Court did not rule on the legality of DACA, which made it subject to future litigation.
On July 26, 2021, the U.S. District Court for the Southern District of Texas granted a permanent injunction ordering DHS to stop granting initial DACA requests. The presiding U.S. District Judge, Andrew Hanen, held the program was unlawful.
Then on October 6, 2022, the U.S. Court of Appeals for the Fifth Circuit upheld the federal district court’s decision, finding that the 2012 version of the DACA policy violated the Administrative Procedures Act. It declined to review the DACA Final Rule issued by the Biden-Harris Administration in August 2022, which was meant to cure the procedural deficiencies of the 2012 Policy Memorandum. Instead, the court remanded the issue back to the federal district court.
On September 13, 2023, U.S. District Judge Hanen determined the 2022 DACA Final Rule was not materially different from the 2012 DHS policy implementing DACA. He found the DACA Final Rule unlawful and expanded his original July 2021 injunction, which prohibits the adjudication and approval of new DACA requests and related applications for work permits (employment authorization) and advance parole (travel document).
Currently, USCIS is adjudicating and approving only DACA renewal requests that are not affected by the July 2021 injunction. Although it is accepting initial DACA requests, it is prohibited from approving them so long as the injunction remains.
On the campaign trail, in political ads, and at the DNC and RNC (national party) conventions, the Harris-Walz and Trump-Vance teams have attacked each other for failing on U.S. immigration issues.
In her DNC speech, VP Harris said, “Last year, Joe (Biden) and I brought together Democrats and conservative Republicans to write the strongest border bill in decades.”
The $118 billion bipartisan bill (“Emergency National Security Supplemental Appropriations Act, 2024”) failed in the Senate after it was opposed by all but four Republicans and a few Democrats. It included $20.23 billion to address current operational needs and increase capabilities at the borders, such as building border barriers, expanding detention facilities, and hiring more Immigration and Customs Enforcement and Border Patrol agents, asylum officers and immigration judges to reduce the years-long backlog in asylum cases.
Additionally, the bill included funding for fentanyl and human trafficking, as well as $60 billion in aid for Ukraine and $14 billion for assistance to Israel. A summary of the bill is here and the text of the bill is here.
In an exclusive CNN interview on August 29, VP Harris said Trump “killed the bill” for political reasons by telling his “folks in Congress” to not put it forward. But Trump is not the sitting U.S. President, and the deeper question is whether the Senate would support the bill if she became the U.S. President. The divisiveness on U.S. immigration issues has existed long before the Trump Administration and his current Presidential run.
In a social media post on Truth Social, Trump noted,” We need a separate Border and Immigration Bill. It should not be tied to foreign aid in any way, shape, or form!”
Trump also criticized the bill for giving Shutdown Authority after 5,000 encounters a day at the border. He wrote, “…we already have the right to CLOSE THE BORDER NOW, which must be done.” The bill stated temporary border emergency authority would be automatically activated by the DHS Secretary if there is an average of 5,000 or more migrant encounters a day over seven consecutive days — or if there are 8,500 or more such encounters on any single day.
The threshold does not reflect the number of persons allowed to enter the U.S. without proper travel documents. Rather, once there is mandatory activation of the Shutdown Authority, undocumented immigrants would not be considered for asylum, which is their most common relief to enter the U.S.
Under existing law, applicants subject to expedited removal at a U.S. port of entry may be considered for asylum if they show a credible fear of persecution or torture in their country. If they pass the credible fear interview and initial screening with an asylum officer, they may seek asylum at an Asylum Merits Interview with a USCIS officer or at a removal hearing with an Immigration Judge.
Obtaining asylum requires applicants to show they have suffered past persecution or have a well-founded fear of future persecution in their country, on account of their race, religion, nationality, membership in a particular social group, or political opinion. Poor country conditions such as widespread poverty or gang violence, by themselves, do not make the person eligible for asylum. A high number of asylum requests at the border add to the already long processing times for asylum applications, which can take several years.
On June 4, the White House issued a Proclamation on Securing the Border (executive order) preventing migrants from seeking asylum at the U.S.-Mexico border when the seven-day average of unauthorized crossings exceeds 2,500. President Biden said this measure was to “gain control” of the border. He noted, “The Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem.”
The 2024 legislation – which VP Harris referred to in her DNC speech – is not the strongest border bill in decades, if you count the 2013 “Border Security, Economic Opportunity, and Immigration Modernization Act” passed in the Senate by a 68 to 32 margin. It was not considered by the Republican-controlled House and died in the 113th Congress.
At the RNC, Republicans called VP Harris the “border czar” who failed to oversee U.S. border enforcement. The Harris campaign points out that she was never responsible for securing the border and this is the job of the U.S. Department of Homeland Security. While this is true, enforcement priorities largely depend on White House policies.
It was really the media (including CNN) that initially gave Harris the “border czar” label, after she was put in charge of addressing the “root causes” of migration at the U.S.-Mexico border, through diplomatic efforts.
The effects of VP Harris’ diplomatic work in Mexico, Guatemala, El Salvador and Honduras were limited, in part because the sources of and reasons for migration have expanded. In fiscal year 2021, for example, there were stark increases in migrant encounters with persons from Ecuador, Brazil, Nicaragua, Venezuela, Haiti and Cuba at the southern border. The humanitarian parole program allows persons from some of these countries to stay in the U.S. for two years if they have a qualified sponsor.
A mass deportation plan presents logistical challenges and humanitarian concerns and will increase pressure on the overloaded U.S. immigration system. Due process requires that undocumented immigrants – already inside the United States with no prior, unexecuted removal order – be given an opportunity to appear in Immigrant Court for possible relief from removal. With years of existing backlog in the Immigration Courts, starting with “one million” for mass deportation (as Vance proposes), will do very little to cure the problem.
Both sides have used U.S. immigration issues for political gains. They involve highly controversial matters with no simple, apolitical fixes. And neither party seems truly capable of (or fully committed to) bipartisan efforts that tackle U.S. immigration problems on all critical fronts.
