Given the congressional gridlock, she plans to use executive action.
Establishing a path to citizenship for DREAMers — undocumented immigrants who came to the US as children — is a policy problem that’s eluded Congress for years. To overcome this standstill, Sen. Kamala Harris (D-CA) on Wednesday laid out a plan to get things done through executive action.
Harris’s proposal, the latest one she’s unveiled as part of her 2020 campaign, aims to eliminate current barriers that DREAMers face when it comes to applying for green cards, and ultimately gaining citizenship.
At this time, there is no clear pathway for roughly 2 million DREAMers to acquire citizenship, despite the fact that there have been myriad congressional efforts to remedy this issue, including a bill that recently passed the House. A very small fraction of DREAMers had previously obtained permanent legal status through the use of “advance parole,” though that option, too, has been halted by the Trump administration.
The obstacles DREAMers still face when attempting to achieve legal status are significant.
Currently, for example, lawful immigrants to the US are able to get a green card through both employer sponsorship and family sponsorship.
DREAMers, however, are not able to attain a green card through either of these channels without leaving the country and attempting to apply for one from a US consulate abroad. This method is a Catch-22, however, because if DREAMers leave the US to apply for a green card, they are automatically barred from reentering the country for up to 10 years.
Harris’s proposal would change this policy. One of the executive actions Harris would take, is to establish a “parole-in-place” program. Under the Immigration and Nationality Act, only immigrants who are “admitted or paroled” into the US are eligible for legal status. Harris’s action would make it so DREAMers are considered “paroled,” and therefore in the US legally, which would enable them to apply for a green card if they had a spouse who is a citizen.
Her plan, which also includes the reinstatement and expansion of the Deferred Action for Childhood Arrivals (DACA) program, could ultimately affect 6 million immigrants, according to her campaign. It could enable 2.1 million DREAMers to get on the path to citizenship, and offer temporary relief from deportation for countless others.
DACA currently offers roughly 700,000 DREAMEers protections from deportation and temporary work permits in two-year increments, though it does not provide a path to citizenship. Trump has attempted to phase out the program, but his efforts have been blocked in the courts. Harris’s plan would build on DACA and provide additional protections to more people.
Harris’s approach is an innovative one that would likely withstand legal scrutiny, said David Leopold, an immigration law expert who provided the campaign with feedback on the proposal. “This, in my opinion, will stand up to any assault in the courts,” he told Vox.
While congressional legislation is the only way to create a more permanent fix for DREAMers, lawmakers’ impasse on a measure that would provide one suggests that executive action may be the most immediate route for relief at the moment.
Harris acknowledged this dynamic as part of her rollout.
“As president, while I fight for Congress to pass 21st century immigration reform, I won’t wait,” she said in a statement. “I’ll take action to lift barriers DREAMers face to pursuing legal status and put them on a meaningful path to citizenship.”
What Harris is proposing
Harris’s proposal would expand the scope of deferred action protections and use a series of executive actions to address legal obstacles that DREAMers currently encounter as they attempt to obtain a green card:
1) Set up a “DREAMers Parole-in-Place Program” using the authority granted to the executive branch by the Immigration and Nationality Act (INA): Because the INA only considers an immigrant eligible for permanent legal status if they have been “paroled or admitted” to the US, Harris would establish a program that “paroles” DREAMers. DREAMers who apply and are “paroled” would be able to pursue a green card if their spouse was a US citizen.
2) Establish a rule asserting that DREAMers were not at fault for any lapse in their legal status: Only immigrants who have been able to maintain a “continuous lawful status” since they’ve arrived in the US are able to apply for a green card and DREAMers are seen in violation of this part of the statute. There is, however, a tenet that says immigrants who fell out of lawful status because of “no fault of [their] own” are still eligible to apply for legal status. Because DREAMers came to the US as children, Harris would create a policy that deems them not at “fault” as a rule.
3) Call on the Homeland Security secretary to grant DACA recipients retroactive work authorization: For some DACA recipients, one of the bars to obtaining legal status is the fact that they’ve “accepted[ed] unauthorized employment.” By enabling DREAMers to apply for retroactive work authorization, Harris would give them the opportunity to remove this barrier from an application for legal status.
4) Do away with the three- or 10-year bans that DREAMers face if they try to get a green card at a US consulate in another country: Because they are undocumented immigrants, if DREAMers were to leave the country in order to obtain a green card at a US consulate abroad, they would be hit with a three- or ten-year ban before they could reenter the US. Harris’s plan seeks to eliminate this ban, which is waived under “extreme hardship.” Harris seeks to classify separation from a close family member as “extreme hardship,” so that DREAMers who attempt to apply for a green card at a consulate would not be affected by this ban.
Harris’s plan is seen as a “creative” one because it leverages power allocated to the executive branch under existing immigration law. Additionally, it’s a proposal that enables DREAMers who would otherwise be eligible for family or employer-sponsored green cards to actually get them.
“Under her proposals, the only people she’s putting on a path to permanent residence and then citizenship are people who already qualify for permanent residence for existing law, but face technical obstacles,” said Washington University at St. Louis law professor Stephen Legomsky, a former chief counsel of the US Citizenship and Immigration Services, who also offered feedback on this proposal.
Additionally, Harris’s plan intends to expand the pool of those who could apply for deferred action. Because of how narrow the constraints were for the DACA program, only a select group of undocumented immigrants within a certain age range were even able to participate. Harris would widen the group that could benefit from deportation protections significantly, so it encompasses more people including the parents of legal immigrants.
These actions could see court challenges, but experts think they’ll stand up to scrutiny
Although these actions would likely see challenges in court, Legomsky and Leopold both argue that they’re framed in a way that would shield them from getting struck down.
Legomsky pointed to a 2015 case in which the Barack Obama administration’s expansion of deferred action protections to the parents of Americans and lawful permanent residents — also known as DAPA — was blocked by a district court judge. The judge justified his decision by arguing that the establishment of DAPA did not use a specific rule-making process. Harris’s proposal would address this issue, Legomsky noted.
“There are gobs of legal authority to use both deferred action and parole,” Legomsky said.
One major downside this plan could encounter is similar to the one that’s affected the DACA program Obama established in 2012: Future presidents could try to undo it. As such, it’s worth noting that executive action is only a solution in the short-term and that a congressional progress remains necessary in order to guarantee DREAMers a path to citizenship.
“Frankly, the Republicans are holding the DREAMers hostage,” Legomsky said. “I think they are hoping they can hold out so that legislation legalizing the DREAMers will be coupled with harsh law enforcement measures.”
Until more action is taken on this front, Harris’s plan offers one of the most specific proposals to address the limbo DREAMers are in head-on. “She’s taken it beyond where everyone else is taking it,” Leopold said.