Editor’s Note: Leon Fresco is an immigration partner in Holland & Knight’s Washington office. Before that, he served as deputy assistant attorney general for the Office of Immigration Litigation at the US Department of Justice and as staff director for the Senate Judiciary Subcommittee on Immigration. Enrique Gonzalez is the managing partner of Fragomen Worldwide’s Florida office. In 2013, he served as special counsel on Immigration to Sen. Marco Rubio, R-Florida. The views expressed in this commentary are their own.
Congress is running out of time to reach a Deferred Action for Childhood Arrivals deal for individuals brought to the United States as children by undocumented parents.
According to fwd.us, an organization founded by tech companies advocating for immigration reform, if a deal is not reached soon, nearly 300,000 DACA recipients, 1,700 per business day, could be removed from the workforce between March 6 and November 6, 2018. And, remember, these are some of the most productive members of our community, including accountants, collegiate and professional athletes, medical students, lawyers, teachers and members of our military working every day to protect this country.
This past Thursday, President Donald Trump rejected a bipartisan proposal brought by six senators as being insufficiently enforcement-oriented. Specifically, the President is seeking billions more in funding for a wall on the southern border and additional funding for several thousand more border patrol agents. And the President is also asking for the complete elimination of the diversity lottery, as well as significant reductions in family-sponsored immigration.
Given these divisions, it might seem like we are headed for a government shutdown – but we still have time to address this issue. And we would know. In 2013, it was our job (Leon for Sen. Charles Schumer, Enrique for Sen. Marco Rubio) to come up with dozens of compromises to resolve immigration issues that had previously been deemed unsolvable.
The main criteria we used was to ensure that any deal would address the most important objective of each side while, at the same time, ensuring that the other side was not required to sacrifice a core belief.
For instance, at the time, Republicans were concerned that specific success on border enforcement would be used as a trigger for the legalization of the 11 million undocumented people living in the United States.
Democrats, however, were concerned, that any metrics for border enforcement success could be manipulated in a manner that would lead to an unachievable path to citizenship. Our compromise was that we would agree on an objective set of border enforcement resources that would be deployed at the southern border before legalization talks could begin.
Along those same lines, a solution can actually still be achieved for DACA.
For many Democrats, the consistent rallying cry has been, “We must pass a clean DREAM Act.” In other words, they want legislation that provides a clear path to citizenship for all undocumented individuals who entered as minors without also including too many significant provisions on enforcement or other changes to the current immigration system.
It is no surprise that this strategy is failing, because the last time a clean DREAM Act received a vote in the House and Senate (in 2010), 160 out of 168 House Republicans and 36 out of 39 Senate Republicans voted against it. It is unreasonable to expect better results after the 2016 election than after the 2008 election.
For Republicans, the rallying cry has been enhancing border security, eliminating what they call “chain migration” – which is the process by which recent immigrants can petition for close relatives to enter the United States – and ending the diversity lottery program, where people from around the world can petition for a chance to receive one of 50,000 annual green cards.
Republicans cite security concerns for ending these programs. This includes the New York truck terror attack, in which the accused is an Uzbek diversity visa recipient, and a failed New York suicide bombing, which was allegedly committed by a foreign national who was petitioned into the United States by his sibling. But, in such a proposal, Democrats are being asked to trade these items in exchange for receiving a path to citizenship for less than 10% of the undocumented population.
In our view, the only solution that can pass muster on both sides of the aisle is to insert the following four lines into the next government funding bill: (1) No person who currently possesses DACA status can be deported unless they commit a crime; (2) Those in DACA status can work and study legally; 3) Covered persons can apply for permission to travel if an urgent humanitarian situation arises; and 4) Lines 1, 2, and 3 shall expire on March 5, 2019. The solution is a legal and temporary statutory fix that simply recreates DACA for one year.
Why should both sides agree to this compromise? On the Democratic side, the goal of protecting DACA recipients from imminent removal would be achieved. And they actually would be better protected than under DACA, because anyone’s DACA status can be canceled at any time, whereas this status can only be revoked if the recipient commits a crime.
On the Republican side, no DACA recipient will receive a green card, so any concerns about increased family immigration and increased Democratic voter registration are nonexistent. At the same time, Republicans will avoid a year’s worth of negative press on individual Dreamers with heart-wrenching stories about being dragged into ICE detention after a workplace raid or some other enforcement action.
And, the Trump administration is free to continue ramping up its enforcement efforts on the 90% of unauthorized individuals not covered by DACA (which is what it is saying it will likely do even if no DACA deal is reached). In other words, if the administration is not planning on prioritizing DACA recipients for removal, then it does not violate one of its core principles by shielding them from removal for one more year.
In the meantime, congressional leaders could convene a bipartisan group to begin comprehensive immigration reform discussions – with the goal of introducing legislation in early 2019. A bipartisan solution is more likely than ever because Republicans can trust the Trump administration to ensure that Democrats’ legalization objectives do not occur unless and until Republicans’ enforcement goals have been achieved.
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And, despite a recent decision from a district court judge temporarily reinstating the DACA program, most legal scholars agree that a congressional solution will ultimately be required to save DACA because either that decision might be overturned in a high court or, at best, the Trump administration will be required to follow the legal procedures for rescinding the program that the district judge claimed were not followed in this instance.
The clock is ticking. Hundreds of thousands of young persons’ lives hang in the balance, as does the funding for our government. Even though this deal may not be appetizing to either side, it is the bare minimum needed to keep the conversation – and the country – going.