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Congress working to strike last-minute immigration deals

Lawmakers are negotiating protections for ‘dreamers’ and other immigration reforms

Sen. Thom Tillis (R-N.C.) at the Capitol last month.
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A handful of bipartisan senators are working to strike separate 11th-hour immigration deals before Republicans take control of the House in January and make the politically tricky agreements even harder to reach.

Sens. Kyrsten Sinema (D-Ariz.) and Thom Tillis (R-N.C.) have outlined a potential immigration proposal that would provide a path to legalization for 2 million undocumented immigrants brought to the United States as children, known as “dreamers,” in exchange for at least $25 billion in increased funding for the Border Patrol and border security. The bipartisan framework, which is in flux, would also extend Title 42 for at least a year until new “regional processing centers” provided for in the bill could be built, according to a Senate aide. The Trump administration instituted Title 42 during the coronavirus pandemic, arguing that the immediate expulsion of migrants was necessary because of the public health crisis.

Meanwhile, Sens. Michael F. Bennet (D-Colo.) and Mike Crapo (R-Idaho) are negotiating on a narrower bill based on a House-passed measure that provided a pathway to citizenship for some undocumented farmworkers. The senators have not yet reached a deal but are hoping to get to one before the end of the lame-duck session this month, according to a person familiar with the negotiations who, like others in this report, spoke on the condition of anonymity to describe the situation candidly.

The last-minute push comes as Congress faces the end of another term without addressing an immigration overhaul and as the United States braces for the end of mass expulsions on the U.S.-Mexico border, as well as the possibility that a federal judge will wind down an Obama-era program that shields dreamers from being deported.

Sens. Kyrsten Sinema (D-Ariz.) and Thom Tillis (R-N.C.) have outlined a plan that would provide a path to legalization for 2 million undocumented immigrants. (Video: The Washington Post)

Though negotiations are underway on possible legislation, it’s unlikely that Congress addresses changes this term as both chambers race to prioritize preventing a government shutdown and pass defense spending with only three weeks left. The Senate did not take up two bipartisan bills sent by the House in March 2021 that would have extended protections for those covered by Deferred Action for Childhood Arrivals and farmworkers as the United States faces worker shortages.

The ruling that could end DACA, which came down in October, brought Democrats in both chambers back to the negotiating table. Members of the Congressional Hispanic Caucus pushed their Democratic Senate colleagues to act while House Democrats still have the majority, knowing that any proposal that had a chance of becoming law would have to stem from the Senate, where at least 10 GOP votes are necessary to pass the legislation.

Besides protecting 2 million dreamers, the Sinema and Tillis draft would allocate money for border security, the hiring of more officers and pay raises for agents. The additional border security and detainment funds would exceed the $25 billion President Donald Trump demanded in his 2018 border proposal and may even exceed $40 billion, a Senate aide said. The proposal also includes changes to the nation’s asylum process, and would keep Title 42 in place until regional processing centers are built to house migrants.

The centers would mirror what is outlined in the Bipartisan Border Solutions Act, a bicameral deal proposed last year, and would hold migrants while they have their immigration cases heard and adjudicated more quickly, to replace the current process in which many asylum seekers are released and given a full court hearing, which can be months or years away. A federal judge in D.C. last month ordered the government to stop expelling migrants under Title 42 by Dec. 21.

Two people familiar with the negotiations between Sinema and Tillis say the senators have yet to whip votes to see if their loose framework could win the necessary support to overcome the filibuster, and details of the proposal could change to gain more backers. The lawmakers are hoping to gain that support before the end of the year, but with little time left and major legislative business still undecided, the group faces long odds. Depending on who wins the Senate runoff in Georgia, Democrats will need either nine or 10 Republicans to pass any legislation in the new year. The framework contains provisions that could be politically risky for both the left and the right to support, given many Democrats’ criticism of Title 42 and some Republicans’ unwillingness to provide a path to legalization for any immigrants.

Sen. John Cornyn (R-Tex.), who co-authored an immigration bill with Sinema that the framework’s border section draws heavily from, said he is not part of the negotiations, illustrating how difficult a path the legislation would have.

“I have said to them that I don’t think there’s any way we can pass immigration legislation without addressing the crisis at the border,” Cornyn said. What he called the Biden administration’s lack of enforcement has made it “almost impossible” to improve the legal immigration system, he added.

Sen. Richard J. Durbin (D-Ill.), a leader on immigration issues in the chamber, said he had not seen the draft framework but was “happy to see that conversations are underway.”

Immigration has become a politically toxic issue over the decades, with Republicans who have previously served in the House GOP majority privately warning that it’s unlikely anything could get done since the far right wing of the conference considers any bipartisan deal too “soft” on immigration.

House Republicans have publicly shown that their priority is investigating Homeland Security Secretary Alejandro Mayorkas for his leadership at the border. Minority Leader Kevin McCarthy (R-Calif.), who is trying to become speaker next term, gave Mayorkas an ultimatum last month when he called for the secretary to step down or face investigations that may lead to his impeachment.

Including the Title 42 provision in a possible immigration framework could entice Republicans who have publicly slammed the Biden administration for no longer enforcing it as a way to stem the rising number of undocumented immigrants entering the United States.

Some senators remains skeptical that a House Republican majority could actually strike a deal on immigration, since the House was unable to pass a compromise bill in 2018 after outrage from the right flank of the conference. Half a dozen Republican members have privately expressed the need for farmworkers to fill jobs in their rural communities, but they know that even that bipartisan measure will probably face a blockade by staunch conservatives.

The House will vote on two immigration bills this week that would phase out the per-country cap on employment-based immigrant visas and provide resident status for noncitizen veterans who may face the threat of deportation. Neither are expected to be taken up by the Senate, given the limited schedule to pass non-appropriations-related bills before the end of the year.

Though Republicans remain privately skeptical that a divided Congress could strike an immigration deal that lands on President Biden’s desk ahead of the 2024 elections, several pragmatic House Republicans, particularly Hispanic members, are in touch with Democrats to find consensus so they can pass legislation with their razor-thin margin.

“I’m looking for partners, and it’s been very difficult in this political environment to find partners that want to have a real conversation. But we’re still able to do it,” Rep. Tony Gonzales (R-Tex.) said, before pointing to the Bipartisan Border Solutions Act he proposed alongside Rep. Henry Cuellar (D-Tex.).

Rep. Maria Elvira Salazar (R-Fla.), who has made immigration reform a major platform during her time in the House, said she is beginning to have talks with Democrats and Republicans about reviving her immigration-related Dignity Act next term.

“There’s no way that we can only seal the border and not take care of the people who are here illegally. That’s the right thing to do,” she said. “We need immigrant hands in order to continue growing this economy.”

Public policy groups, however, continue to increase the pressure on Congress to act. Kristie De Peña, vice president for policy at the Niskanen Center, endorsed what she called “the historic” Sinema-Tillis framework Monday because its passage would represent “a meaningful step toward improving our immigration system.”

The Obama administration created DACA in 2012 to allow undocumented immigrants who came of age in the United States to apply for work permits, clearing the way for many to attend college or trade school and to obtain driver’s licenses. More than 825,000 immigrants have benefited from the program, but the number of active enrollees has since dropped to 594,120, according to a June 30 federal report, the most recent available.

Most DACA recipients are from Mexico (480,160), but they hail from dozens of countries.

DACA has always been limited to immigrants who arrived in the United States before June 15, 2007, which leaves out thousands of immigrants who have arrived since then. Thirty-eight percent arrived in the United States before age 5, according to the Department of Homeland Security.

Mayorkas said Monday that the agency is “devoting tremendous resources” to border security but he signaled that congressional action is essential for addressing the record influx of people fleeing poverty and repressive regimes such as Venezuela.

Our laws have not been reformed for more than 40 years,” he said in a discussion at the Center for Strategic and International Studies in Washington on Monday. “The problem from administration to administration, regardless of party, is the fact that we are fundamentally working within a broken immigration system. And that is the foundational challenge with respect to the border.”