Last week, Democrats introduced the U.S. Citizenship Act of 2021—a comprehensive immigration bill that will evidently be one of the Biden administration’s first major legislative battles after the coronavirus relief fight is finished. If passed, the Act will be the culmination of decades of efforts from both reformers and restrictionists to fundamentally reshape the American immigration system, including abortive attempts at crafting a path to citizenship for the undocumented during the Bush and Obama administrations and, of course, Donald Trump’s attempts to deepen the system’s racism and traumas. “I think for us, it shows the seriousness of the commitment by this administration, just coming out of the gate, to address this issue on the heels of four brutal years on this topic,” Carlos Guevara, associate director of immigration initiatives at UnidosUS, says of the bill. “And not just with statements of principles or rhetoric about values—which we support, of course—but with substantive bill text.”
The Citizenship Act offers an eight-year path to citizenship for the estimated 10.4 million undocumented immigrants already in the United States, including those eligible for Deferred Action for Childhood Arrivals and Temporary Protected Status recipients, who would immediately be allowed to apply for green cards. The bill also includes reforms to the legal immigration system—including the addition of 25,000 more diversity visas and lifting per-country visa caps—as well as $4 billion in funding to address the root causes of migration for distressed communities in Central America.
The humanization of the undocumented by advocates and revulsion toward Trump and his policies have created the most favorable climate for a reform push, in terms of broad public opinion, that the country has ever seen. Earlier this month, Data for Progress found that 69 percent of likely voters support granting the undocumented a path to citizenship. Another recent poll by Quinnipiac found 65 percent support for legalization among the American public at large. And last year, Gallup noted that for the first time on record, the number of Americans who support increasing immigration (34 percent) had surpassed the number supporting an immigration decrease (28 percent). Since 2016, the proportion supporting an immigration increase has jumped 13 points while the proportion supporting a decrease has fallen by 10.
But most of that shift has been the product of Democrats moving left. The GOP remains Trump’s party. And even Republicans who had been open to immigration reform pre-Trump have been critical of the new push. In a representative statement the day before the inauguration, Florida Senator Marco Rubio, a major party to immigration talks in 2013, called the incoming administration’s immigration plan a “nonstarter.” “There are many issues I think we can work cooperatively [on] with President-elect Biden,” he said. “But a blanket amnesty for people who are here unlawfully isn’t going to be one of them.”
The fate of immigration reform ultimately lies with the Democratic Party, which now holds full control of government and can, if its pivotal members choose, finally deliver on its promises to the undocumented without Republican votes. Whether or not it does will tell us not only whether Democrats are truly committed to building a humane immigration system but whether the rest of Biden’s other legislative goals have any chance of succeeding.
In a briefing last week, White House Press Secretary Jen Psaki said that the Citizenship Act is the product of a needed “reset” on thinking about immigration in Washington. The framework of the bill is indeed a departure from past immigration packages. Efforts like the 2013 Gang of Eight plan and the 2006 Comprehensive Immigration Reform Act paired legalization for the undocumented with heavy and specific investments in border security measures, internal enforcement, and incarceration. But while this bill also includes language calling for increased immigration enforcement funding, the actual amount of funding has been left unspecified—a noticeable shift from provisions in prior legislation.
Tom Jawetz, vice president for Immigration Policy at the Center for American Progress, says this is partially because immigration authorities have been showered with funding for years now—in 2018 alone, according to the Migration Policy Institute, they took in $24 billion or 34 percent more than the funding allocated to all other federal law enforcement agencies combined. “What’s happened to border enforcement and border and interior enforcement spending over the course of the last 12 years, when we haven’t successfully reformed the rest of the immigration system?” Jawetz asks. “It’s exploded. We’ve just continued to heap more and more money and personnel and technology and manpower on the enforcement system. In a lot of ways we’re throwing a lot of money after a system that doesn’t work.”
“And so, to me, I think that’s what Jen Psaki is referring to in many ways by saying it’s a reordering of the conversation,” he continues. “Frankly in the last administration, we got a good look at what we bought for that money.”
Much of the work of exposing practices at Immigrations and Customs Enforcement and Customs and Border Protection during the Trump administration was done by immigration advocacy organizations like United We Dream, which is backing the Citizenship Act. The group’s advocacy director, Sanaa Abrar, credits initiatives like Defund Hate, which demanded full divestment from ICE and CBP, with eroding public confidence in the agencies and the existing enforcement regime.
“We were able to define what it truly meant to funnel money to ICE and CBP and define how each dollar was being spent on detentions and deportations,” she says. “So seeing the legislative text last week was a huge step forward. And I’d like to think that it’s a tribute to the redefining and reshaping of what it means to create immigration policy as a result of the leadership of directly impacted people who can speak to, yes, the positives and the necessities of pathways to citizenship as well as the dangers and threats of beefing up or reinforcing deportation agencies.”
Nevertheless, the right remains resolutely committed to punitive policies at the border and aggressive internal enforcement. And, as is the case with other major items on the docket for Democrats, the Citizenship Act won’t reach a filibuster-proof 60-vote threshold in the Senate without a significant amount of Republican support. This fact isn’t lost on reform advocates. On Thursday, the Refugee and Immigrant Center for Education and Legal Services, a group in Texas, issued a statement on the bill calling upon Senate Democrats to eliminate the filibuster if necessary for its passage.
“We have lived through many broken promises on immigration. Comprehensive Immigration Reform and the Dream Act have failed in Congress time and time again, even when Democrats had the majority,” chief advocacy officer Erika Andiola said. “Passing legislation this year will be no easy task given the extreme wing of the Republican Party and moderate Democrats who want to appeal to Republican supporters. Regardless of the challenges, President Biden and the Democratic leaders in Congress must keep their promise.”
Whatever Democrats do to pass the Citizenship Act, Abrar says, it will be crucial for the party not to make concessions on enforcement in pursuit of Republican votes. “If we are facing a 60-vote reality, then what is it that we can do to get bills passed that are not partnered with harms—that are not partnered with enforcement funding for ICE and CBP?” she asks. “One thing that we’ve recognized is that at the very least in 2019, in the House, both the Dream and Promise Act and Farm Workforce Modernization Act received bipartisan support. We also know that for many specific populations that the movement has worked to define and tell the stories of, there is growing bipartisan support for pathways to citizenship. I think we’ve gotten way past where we were maybe a decade ago where that could only be said about Dreamers, which is a positive.”
That opens the door to the possibility, already being floated by House Speaker Nancy Pelosi and others, that the Citizenship Act might be broken up. “We think that there might be a world where the Dream Act portion of the legislation or the farmworker pieces of the legislation could move first and garner the requisite support from the Republican side through regular order,” Guevara says. “In the event that that is not the case, we’ve called on the administration and will continue to call on the administration to use every legislative tool along the way.”
One of the tools advocates are urging Democrats to consider is budget reconciliation, a process for passing fiscal legislation by simple majorities that’s already seeing use as the vehicle for Biden’s coronavirus relief package. In fact, advocates on and off the Hill have been arguing for months that legalization and aid for the undocumented should be integral parts of the relief effort. In January, more than 500 organizations across the country signed a letter to Pelosi and Senate Majority Leader Chuck Schumer urging Democrats to include a path to citizenship for Dreamers, TPS holders, and the estimated five million undocumented Americans currently employed as essential workers in relief legislation. Earlier this month, another letter from more than 60 economists argued that doing so would stimulate and strengthen the economy to the benefit of all workers.
“For us, one of the key arguments that we make and that we firmly believe in is that at a moment of great peril for the country during this pandemic, we’ve seen how interconnected we all are,” Guevara says. “We have essential workers up and down our economy—food supply lines, childcare, educators, you go up and down the list—who are immigrants keeping the country afloat. And it’s an important piece of any recovery to ensure that those folks are included and have the stability that they deserve in this moment.”
But opposition to their inclusion in relief measures has come not only from Republicans but Democrats like West Virginia’s Joe Manchin and Arizona’s Mark Kelly and Kyrsten Sinema, all of whom voted for an amendment barring the undocumented from receiving stimulus checks proposed in the Senate’s budget resolution. This is the reality of the reform push: Even if Democrats decide to go it on their own, the shape and scope of any final legislation will be determined by the party’s moderates, including, as Politico reported on Thursday, House Democrats in Texas and elsewhere who claim resurrecting immigration as an issue will damage them in next year’s midterms.
This is among the reasons why the Biden administration can be expected to continue immigration actions at the executive level no matter what becomes of immigration legislation. And those actions may well include provisions in the Citizenship Act. “There are a number of proposals in that bill that absolutely do not need legislation in order to become a reality,” Jawetz says. “So I actually view some pieces of that as being indications of strong White House policy support for proposals that could materialize through administrative action in the not too distant future.”
One example is the Act’s establishment of a reunification parole program for Central American immigrants, which builds upon a policy that’s previously been offered to immigrants from Cuba and Haiti as well as Filipino World War II veterans. “They can finish up their wait for a visa to become available from within the United States,” he says. “And that’s something the administration has complete and total authority to do under existing statutes.”
As much as the administration has done by executive action, the White House is already running into obstacles imposed by Trump and the deficiencies that were present in the policy regime Trump inherited. Biden’s promise of a 100-day deportation moratorium has been blocked by a Trump-appointed federal judge, and a large child-detention facility in Texas set up under Trump was reopened on Monday. Ultimately, bringing broad, stable, and lasting changes to the system will depend on legislation and the willpower of Biden and his party. Again, what they decide to do on immigration will be an instructive early test of their seriousness and resolve. If Democrats fail to deliver for the constituency most hurt by the Trump presidency—immigrants who’ve been placed at the center of so much of the party’s rhetoric over the last four years—then there’s little hope for the rest of the Biden agenda.