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Immigration Reform Is Dead

The Build Back Better Act was probably the last best chance for immigration reform for a long time. And even that didn’t offer much.

A young woman holds a banner reading “Here to Stay”
Kena Betancur/AFP/Getty
A protest in support of Deferred Action for Childhood Arrivals

Immigration advocates had reason to feel buoyant at the start of this year. President Joe Biden had launched his term by theatrically signing away emblematic Trump-era restrictions. In March, House Democrats had passed the American Dream and Promise Act of 2021, the latest in a long-running chain of acts to give status to people brought to the United States as children, among others, followed closely by the Farm Worker Modernization Act, which would provide an eventual path to citizenship for the nation’s critical undocumented agricultural laborers.

Neither bill had much of a chance in the Senate, but the reconciliation process seemed a golden ticket to attach these popular measures to a smorgasbord of other very popular economic and social measures with the full-throated backing of the president. Despite subsequently angering activists with his embrace of Trumpian border policies, particularly Title 42, Biden had made a path to citizenship for longtime undocumented residents an early plank of his administration, and so hope remained.

Progressive legislators decided to go for broke. They laid out a framework that would include paths to residency and citizenship for an expanded pool of Dreamers, as people who came to the U.S. illegally as minors are known (it would be a far larger group than those who qualified for the Deferred Action for Childhood Arrivals program instituted under former President Barack Obama); holders of Temporary Protected Status; farm workers; and a large but nebulous group of workers deemed essential during the Covid-19 pandemic. Millions would be brought out of the underclass.

Democratic Senator Joe Manchin, a key obstacle to overcome for any potential addition to the multitrillion-dollar bill, had by mid-July signaled that he supported the inclusion of the immigration measures. For a few weeks, the air crackled with heady possibility as advocates allowed themselves to imagine that, about 35 years after President Ronald Reagan signed the last mass regularization scheme, at the end point of thousands of marches, petitions, calls to representatives, roundtables, media appearances, and all manner of blood and tears, they could win. Then along came Elizabeth MacDonough.

The Senate parliamentarian, who by happenstance was an immigration prosecutor early in her career, shot down the path to citizenship for violating Senate rules holding that reconciliation is, fundamentally, a tool for tweaking budgets and not enacting policy. Senate Democrats could have ignored her nonbinding ruling, but predictably they did not. A second attempt at a broad path to regularization, via tweaking the registry date, met a similar fate.

At that point, Democrats landed on the rather underwhelming notion of instituting a parole program for the undocumented, which entailed flimsy protections from deportation and work authorization, in a way that was substantially similar to DACA or TPS, issues Democrats were supposed to be fixing, not adding to. Another part of the bill would have provided the welcome change of recapturing green cards that had gone unused in prior years, which would have somewhat eased backlogs.

These items were technically better than nothing, though the parole program would have further complicated the conversation going forward, as an estimated seven million people entered a sort of liminal immigration state. In the end, it still got stripped out by MacDonough. Some Democratic senators were more forcefully pushing their colleagues to overrule her, but then Manchin came out against the entire bill, effectively tanking it. Any foreseeable immigration measure would now have to be standalone.

One thing all of the efforts in the reconciliation had in common was that, despite being stuck with the fuzzy “immigration reform” moniker, none of them would meaningfully reform how the system works. They would provide protections of varying permanence and robustness to the country’s large standing population of undocumented and semi-documented residents, but would do nothing to address the underlying systems that got them that way.

“Ultimately, it’s Congress that has to make changes, and we’re kind of in a situation where Congress doesn’t seem willing to legislate on immigration,” said Julia Gelatt, senior policy analyst at the nonpartisan Migration Policy Institute. “As a result, the executive branch tries to take immigration policy into its own hands, and then there’s litigation challenging that use of executive authority, which also creates its own kind of mess.”

Gelatt expects public pressure for immigration reform to keep growing not only from advocates but the business community. “We not only have this really weird economy right now, where there are a lot of unemployed workers and also a lot of labor shortages, but we’re advancing in the age of the population,” she said. Nonetheless, pressure and popularity alone seem to have done very little to move the needle. As a case in point, a narrow path to citizenship for Dreamers has been overwhelmingly popular for over 20 years, and yet the goal seems as elusive now as it’s ever been.

From the clunky process to hire temporary workers to interminable residency backlogs, massively outdated humanitarian migration criteria, and overworked and politicized immigration courts, a thousand bits of gunk have built up over decades of layered, inconsistent, and often contradictory policymaking to decisively and enduringly suffocate the entire apparatus in ways that almost everyone hates but seems powerless to fix. It’s a common refrain that “the system is broken,” and yet the last time immigration laws were meaningfully changed to affect who would be granted status and how, the Soviet Union still existed.

There have been numerous attempts since, many with actual bipartisan backing. Perhaps the closest to fruition was in 2013, when a group of senators who came to be known as the “gang of eight” sponsored the Border Security, Economic Opportunity, and Immigration Modernization Act. The bill would have, among other things, established a path to residency and eventual citizenship for millions of undocumented immigrants, created new visa types for entrepreneurs and agricultural laborers, and eliminated per-country caps on green cards, helping tamp down the massive backlogs faced by would-be immigrants from countries like India and Mexico.

It wasn’t all milk and honey; like many such efforts before and since, it mainly emphasized the economic benefits of immigration and the value of highly educated, likely affluent immigrants, viewing humanitarian responsibilities as secondary or flexible. It also would have traded pro-immigration measures for increased enforcement and border security, supercharging the longtime project of a militarized and high-tech panopticon of a border region. Reform in exchange for militarization and surveillance has been the standard deal going back decades, but now it seems like even that devil’s bargain is not enough. Despite securing an eyebrow-raising 68 votes in the Senate, the bill was never acted on in the John Boehner–controlled House.

Of the four GOP senators in the gang of eight, two—Marco Rubio and Lindsey Graham—remain in office. Graham went on Fox News in mid-October to claim Brazilian asylum-seekers were secretly rich, that Biden was an open-borders zealot, and that terrorists might be crossing the border. Rubio, for his part, has been using his personal Twitter account to rave about immigration conspiracies such as a nefarious plot to fly unvaccinated asylum-seekers (whom he incorrectly calls “illegal immigrants”) into Florida. On the other side of the aisle, Democratic lawmakers are increasingly wary of tying either reform or regularization to enforcement, having been stung on that before and contending with the pressures of an ascendant left wing of the party.

“The amount that we’ve invested in ICE agents and equipment, Customs and Border Protection materials, technology, detention facilities, and on and on has been huge, and to simply continue to funnel money for that, I don’t think makes sense,” said Illinois Democratic Representative Jesús “Chuy” García, the sponsor of the New Way Forward Act, which would undo some immigration criminalization measures passed by Congress and signed by former President Bill Clinton in 1996.

There’s also the reality that Republicans can already taste a potential midterm retaking of the House, and have a keen awareness that the path to doing so runs through total obstructionism of even routine funding of the government, let alone an enormously controversial issue like immigration reform. “There’s a strong current of fear that is added to that rhetoric and it’s paid off for [the GOP], especially in that part of the country, the border states,” said García. This wouldn’t be as much of an issue were it not for the fact that moderate Democrats in the Senate have refused to consider getting rid of the filibuster. All in all, the prospect of fundamental shifts to the way immigration works in this country in the foreseeable future is torturously small.

Still, some advocates emphasize that while the thought of fixing the system as a whole seems impossible, there are specific planks of general agreement and broad public support that could be acted on piecemeal. “It is going to be difficult, particularly in 2022, to have something like the bill that passed the Senate in 2013: a focused, comprehensive immigration reform bill,” said Laurence Benenson, vice president of policy and advocacy at the National Immigration Forum. “But we do think there’s a window, particularly in the early part of the year, to move forward on some of these key pieces: a Dreamer solution, some border security, solutions for those with Temporary Protected Status, as well as essential workers, like agricultural workers.” In addition, there are very concrete if somewhat esoteric remedies that most of the public would probably hardly understand, let alone get incensed about, like making immigration courts independent of the executive branch.

That will require a decent amount of political capital expenditures from not just congressional Democrats but the president and some GOP policymakers, and there lies the fundamental issue with the argument that because things are popular or necessary, they are possible. Immigration has become a radioactive culture-war item, and with every failed attempt to shift things around, real change gets a little bit harder. “It’s such a hot-button issue that politicians don’t really want to stick their necks out and take a stand,” said Gelatt. “The chances of succeeding after we’ve seen so many high-profile failures don’t seem particularly high, either.”