WASHINGTON — U.S. Senate Democrats said Tuesday that they remained hopeful Congress could create a legal pathway to citizenship before the end of the year for the more than 600,000 undocumented people enrolled in a program that is at risk of being deemed illegal by a lower court.
Immigration rights advocates held a press call including Democratic Sens. Dick Durbin of Illinois and Robert Menendez of New Jersey to stress the need for legislative action, following a recent 5th Circuit Court of Appeals ruling that upheld a lower court decision in the Southern District of Texas.
That decision determined the Obama-era Deferred Action for Childhood Arrivals program to be unlawful—though current recipients are not yet affected—and blocked the government from accepting new applications.
“The writing is on the wall,” Greisa Martinez, who leads United We Dream Action, the largest youth immigration advocacy group, said.
Martinez, who is a DACA recipient herself, told Durbin and Menendez that Congress needs to move quickly, because “we are closer than we have ever been to the possible end of DACA.”
Created a decade ago
DACA was created a decade ago to provide temporary relief for children who were brought into the country unlawfully, allowing them to obtain drivers licenses and work permits and protecting them from deportation.
Durbin, who chairs the U.S. Senate Judiciary Committee, said Congress realistically will not be able to pass any DACA legislation before the midterm elections. Republicans will not want to vote for immigration reform during their reelection campaigns, he said.
“The Republican election strategy is to attack immigration,” he said. “We will do everything in our power to get the 10 Republican votes to make this a reality, either at the end of this year into this session, or with a better majority in the next session.”
Durbin stressed that Americans need to get out to the polls in November to “step up and vote for those who are willing to enter into an honest dialogue about immigration.”
Democrats are projected to lose the House, but could possibly pick up a couple seats in the Senate.
Although Democrats control the White House and Congress, an evenly divided Senate has meant that any immigration reform has languished.
Durbin said Senate Democrats do not have the 10 votes needed to meet the 60-vote threshold to overcome a filibuster, and have tried to pass legislation protecting Dreamers at least five times.
“We fell short,” he said. “And that’s where we stand today.”
Durbin added that four or five Republicans would be willing to vote on DACA-related immigration reform, but did not name those senators.
Hope for narrow legislation
Menendez, who also chairs the Senate Foreign Relations Committee, said he remained confident that Democrats could pass a narrow piece of immigration legislation by the end of the year that would provide a pathway to citizenship for the more than 600,000 undocumented people in the program.
“If we could just center on the question of Dreamers and DACA in and of itself, I think a … legitimate issue can be resolved,” he said.
Menendez noted that in the past, when it comes to trying to pass immigration policy, Republicans have tried to attach “onerous” conditions such as tighter restrictions on asylum.
“I’m not personally willing to give away the fundamental rights that America has had on the question of asylum in a way that basically guts asylum,” he said.
Menendez added that Democrats would also like to see the Biden administration prioritize immigration.
He said that he would like to see the White House allow those undocumented people who could not apply to DACA, due to a pause ordered by the Texas court, to instead apply under Temporary Protected Status and Deferred Enforced Departure.
TPS is granted to those who are already residing in the U.S., but whose home country is deemed unsafe for return, and allows those recipients to stay in the U.S. temporarily. DED is not a specific immigration status, but allows those covered to be exempt from deportation for a certain period of time.
Texas U.S. District Judge Andrew Hanen prevented the government from accepting new DACA applications, but has allowed the program to remain for current participants. He ruled in July 2021 that because DACA was not subject to public comment or notice, it violated the Administrative Procedure Act.
A three-judge panel from the 5th Circuit Court of Appeals, headquartered in New Orleans agreed with Hanen, a President Donald Trump appointee, but asked the Texas judge to look at the new version of a rule on the program issued by the Biden administration in August, which is set to take effect Oct. 31.