Comment: Harris has plan to help Dreamers; it’s time to use it

With other immigration efforts stalled in the Senate, the Biden administration can take executive action.

By Daniel Hemel / Special To The Washington Post

One of the high points of then-Sen. Kamala Harris’s ultimately unsuccessful presidential campaign came in June 2019, when the California Democrat rolled out a creative plan that would use executive action to provide a path to citizenship for hundreds of thousands of “Dreamers,” or undocumented immigrants brought to the United States as children. Now, with more comprehensive immigration reform legislation stalled in Congress, Harris’s proposal provides a playbook for an administration searching for its next move.

Harris’ plan would use the Homeland Security secretary’s “parole-in-place” authority to overcome legal barriers that prevent many Dreamers from obtaining green cards; a first step on the path to U.S. citizenship. By invoking parole-in-place, Harris’s approach would soften the cruelty of existing immigration law, which in some cases requires Dreamers to live in effective exile for a decade if they are ever to gain lawful status in the country that they know as home. And the plan rests on solid legal ground, as even its opponents acknowledge. For example, the Center for Immigration Studies, a think tank that advocates for more restrictive immigration policies, published an analysis in 2020 concluding that it would be “next to impossible” to defeat Harris’ plan in court.

A year into the Biden presidency, the political calculus aligns with the moral and legal arguments in favor of Harris’s proposal. The administration’s “Plan A” for Dreamers — a bill that would provide a pathway to green-card status and eventual citizenship for 2.5 million immigrants who arrived in the country as children — passed the House last March, with nine House Republicans joining the entire Democratic caucus in support. But the legislation lacks a clear path forward in the Senate, where it faces a near-certain Republican filibuster. (Senate Democrats tried unsuccessfully Wednesday to create a carveout from the filibuster for voting rights legislation, but they chose not to include the Dreamers in their push for procedural change.)

Plan B sought to use budget reconciliation as a vehicle to provide green-card status for Dreamers, along with millions of other undocumented workers and individuals living in the United States under temporary protected status. Budget reconciliation bills can’t be filibustered, but they are subject to another requirement — the Byrd rule — that prohibits provisions whose budgetary effects are “merely incidental” to the nonfiscal consequences. The Senate parliamentarian, who advises lawmakers on chamber procedures, dashed Dreamers’ hopes for an easier legislative route when she repeatedly rebuffed Democrats’ attempts to include immigration provisions in a budget-reconciliation package last year.

Some Senate Democrats explored the possibility of pushing the green-card provisions through budget reconciliation notwithstanding the parliamentarian’s opposition. The parliamentarian’s advice is nonbinding, after all, and the Senate’s presiding officer would be free to reach her own conclusion regarding the Byrd rule’s application to the green-card provisions. Under the Constitution, the vice president is the presiding officer of the Senate whenever she attends the chamber’s sessions, and Harris would have a strong argument that the green-card provisions — which would allow millions of people to access federally subsidized health insurance, federal student loans, Social Security benefits and a range of other programs — satisfy the Byrd rule’s requirement of having a budgetary effect that is more than “merely incidental.”

But the prospect of Vice President Harris taking the gavel and making such a ruling is even more remote now that Sen. Joe Manchin, D-W.Va., has pulled his support from his party’s roughly $2 trillion tax-and-spending package. Attaching a green-card eligibility expansion to a budget reconciliation vehicle requires, first, a budget reconciliation bill. With that legislative vehicle now garaged, the administration needs a Plan C.

Fortunately, Harris already has a Plan C ready to go. Her proposal addresses one of the most significant obstacles to citizenship for many Dreamers: the rule in the Immigration and Nationality Act that generally prevents a noncitizen from obtaining a green card unless she was “admitted or paroled into the United States.”

Many Dreamers fall within one or more of the existing green-card eligibility categories: for example, they have a close family member who is a U.S. citizen or green-card holder or they have an employer who will sponsor them. And more than 200,000 Dreamers are married to U.S. citizens, which typically opens up a fast track to a green card. But most Dreamers were never “admitted” to the United States; in other words, they weren’t authorized to enter the country by an immigration officer.

In theory, a Dreamer who wasn’t admitted to the United States could leave the country and then be admitted back. But someone who has been unlawfully present in the United States for one year or more as an adult and then leaves the country typically can’t be admitted for a decade. That bar means many Dreamers who have no memory of living anywhere other than the United States must spend 10 years abroad even to have a shot at green-card status and eventual U.S. citizenship.

The Homeland Security secretary can waive the 10-year bar for the spouse or child of a U.S. citizen or green-card holder, but only if the bar would result in “extreme hardship” for the applicant’s spouse or parent. And even if a noncitizen receives a provisional waiver, she needs to go to a U.S. Embassy or consulate abroad to apply for an immigrant visa. Not only is that costly, but it also entails risk: The consular officer still may deny the visa, leaving the applicant stranded.

Parole-in-place offers a safer route around the 10-year bar. It is based on a statute that allows the Homeland Security secretary — in his discretion and on a “case-by-case basis” — to “parole” a noncitizen into the United States “for urgent humanitarian reasons or significant public benefit.” Historically, most people paroled into the United States have been new arrivals, but the Clinton, George W. Bush and Obama administrations all interpreted the statute to allow for parole of individuals already in the United States without forcing them to leave and return. Congress endorsed this interpretation in the bipartisan National Defense Authorization Act of 2020, which stated that “the importance of the parole in place authority of the Secretary of Homeland Security is affirmed.”

Under Harris’ plan, the Homeland Security Department would begin accepting applications for parole-in-place from Dreamers. It could not confer parole-in-place status on a blanket basis; each case would have to be considered individually. But federal judges could not second-guess the Homeland Security secretary’s discretionary grants; the Immigration and Nationality Act strips courts of jurisdiction to review these decisions.

Dreamers who receive parole-in-place would not get green cards automatically. Applicants under some eligibility categories would face an additional hurdle if they have worked in the United States without authorization, though Harris proposes to remove that hurdle by granting work authorization retroactively. Green-card applicants would face waits ranging from several months to several years, and it is possible that a new administration would take office during that period and cancel parole-in-place for individuals who haven’t received their green cards yet. It is also conceivable that a conservative Supreme Court would erect roadblocks, notwithstanding Congress’ clear approval of parole-in-place in the recent defense legislation.

But even if the program does not last forever, the Harris plan could usher tens of thousands — potentially hundreds of thousands — of Dreamers along the path to citizenship, putting them past the point at which a future administration could halt the process. It would also help to elevate Harris’ stature with voters in immigrant communities; an increasingly integral component of the Democratic coalition, and one where Trump made some surprising gains. That would be a political bonus for the party if Harris is on the Democratic ticket, either in the first slot or the second, in 2024.

Politics aside, the Harris plan would make good on Biden’s campaign pledge to “explore all legal options” for keeping Dreamers and their families together. Surely that exploration should include an option that legal experts on all sides of the issue agree is likely to work; especially when the idea comes from Biden’s own vice president.

Daniel Hemel is a professor at the University of Chicago Law School and a visiting professor at New York University School of Law.

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