Each election cycle obviously has political implications, and for my purposes, it will no doubt have implications on U.S. immigration policy. Once this midterm election cycle comes to a close (as of this writing, the Georgia senate race is still up in the air), it will be interesting to see the politics of immigration policy in general, and God forbid we speak about immigration reform in particular. It is the “third rail” of politics. But reform – well thought out reform – is as elusive as ever, and absolutely necessary. Our immigration system is broken, and it’s been broken for a very long time.
As some of you will recall, I “enjoyed” my first taste of our immigration system when I started working for U.S. Sen. Alfonse D’Amato in the 1980’s. Back then, constituents would call, both individuals and HR professionals for companies doing business in New York, complaining, e.g., that they could not get their relatives into the United States for a visit, or there were delays processing their company’s H-1B nonimmigrant worker petition either at legacy-INS or the Department of State. Eventually, the primary company complaint in the 1990’s was that there weren’t enough H-1B nonimmigrant visas to go around. (Sound familiar? Now it’s not only H-1B’s, but H-2B’s too!)
In those same conversations, I would no doubt hear about all the “illegals” that were streaming across our border or hanging out on Westchester street-corners waiting to be hired for day jobs. (I’m not picking on Westchester, but I was working in Sen. D’Amato’s New York City office at that time and a lot of my calls came from that area.)
In 1997, I went into private practice, focusing the majority of my practice on immigration and nationality matters. Although the times have changed, the issues have not. In fact, they’ve gotten so much worse.
The Department of Homeland Security (“DHS”) (including the three agencies that make it up – U.S. Citizenship and Immigration Service, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection) is an enormous agency. The U.S. Department of State is pretty big too. To be fair, I’ve met many people over the years who work at these agencies who are really good and decent people, and who do exceptional work. But the system within which they work, and which we are stuck with, is very much broken.
Starting on January 1, and for the next two years, our legislative branch will once again be divided between the Democrats (narrowly controlling the Senate) and the Republicans (also narrowly controlling the House). What does this mean for effectuating change in immigration policy? Probably more of the same (which is sad for me to write given that the Democrats technically controlled both the executive and legislative branches of government for the last two years). The federal courts have been no friend of meaningful change either. Let me give you an example.
In late August, the Biden Administration issued a final regulation codifying the Deferred Action for Childhood Arrivals (“DACA”) program which, as many of you know, is meant to protect those that we refer to as Dreamers from being removed from the United States. Although Congress absolutely needs to pass legislation permanently protecting all Dreamers, this was a welcome first step. The final rule was effective October 31, 2022 and codified the then-existing DACA program and policies (with some limited changes).
However (seems like there’s always a “however”), in July 2021, District Court Judge Andrew Hanen (no friend of immigration advocates and practitioners) issued an injunction that prohibited DHS from granting initial DACA requests. As a result, DHS has not been adjudicating any initial DACA applications since that time.
On October 5, 2022, the Fifth Circuit Court of Appeals remanded an appeal of that 2021 decision back to Judge Hanen’s court for further review but also kept in place the status quo; that is, DHS could process renewal applications for current DACA recipients, but no new applications for DACA could be processed. In remanding the case, the Fifth Circuit held that the 2012 creation of DACA by then President Obama’s executive memo was not legal and ordered the district court to address the Biden Administration’s argument based on its new DACA regulation.
As might have been predicted, shortly thereafter, on October 14, Judge Hanen issued an order partially blocking the final regulation from going into effect, stating that the injunction that he originally ordered also extends to the new regulations. The order also stated that DHS may continue to accept and grant DACA renewal applications, but that DHS continues to be enjoined from granting DACA status for any new applicants.
Do you see where this is going? Nowhere.
Let’s keep in mind what we’re talking about here. DACA is a program whereby aliens who are unlawfully present in the United States, who had been brought to the United States as children (more often than not through no fault of their own), and who met other criteria, could receive “deferred action.” These young people are basically protected, albeit temporarily, from being removed from the United States. They are able to work lawfully, attend school, and basically live their lives without the constant fear of being deported. However, unlike legislation, DACA does not provide a permanent legal status to these young people, and it needs to be renewed every two years.
You would think that given the split Congress in 2023, there would have been a push in the immediate aftermath of the midterms of do something legislatively for Dreamers (perhaps with the Democrats even by making some concessions to Republicans as to border security and asylum processing). But there has been nothing. Indeed, as far as the House is concerned, having Kevin McCarthy as the future Speaker of the House and Jim Jordan as the future Chairman of the House Judiciary Committee are two of the worst outcomes of the midterms.
About the most positive thing I’ve read since the midterms (at least from a legislator) has come from Sen. Mitt Romney (R-Utah), who wrote an opinion piece in the Wall Street Journal that encouraged the Republican party to govern “wisely” instead of making “pointless noise.” Although he criticized the Biden administration’s management of the US-Mexico border, he did call on lawmakers to have the “political courage” to reach a bipartisan immigration deal. You think?
Politics stinks right now. It has (actually) for quite some time. I don’t know the solution to what we’re all living with right now, beyond the hope that the pendulum will eventually swing in the other direction. Until it does, or people get the “political courage” to exercise some common sense, we’re going to continue to see immigrant communities marginalized and discriminated against for political gain. Yes, politics stinks right now and the midterm results have unfortunately done nothing to change that.
 Kevin McCarthy has indicated that he would not trade border security for helping Dreamers, and both he and Jim Jordan wants to bring impeachment hearings against DHS Secretary Alejandro Mayorkas