With Choice of Kamala Harris, Biden's Immigration Plans Become Clearer

Expect parole in place before an amnesty — including for criminal aliens

By Andrew R. Arthur on August 12, 2020

On Tuesday, August 11, the presumptive Democratic nominee for president, Joe Biden, announced that he had chosen Sen. Kamala Harris (D-Calif.) as his running mate. With this choice, Biden's path to implement his immigration plans — including a massive amnesty for millions of aliens living in the United States — has become much clearer. Expect a massive "parole in place" (PIP) before an equally massive legalization storm — including for criminal aliens.

Biden has not made his interest in passing a major amnesty a secret. It is right on his campaign website. Specifically, the former vice president promises to work to pass legislation that will: "Create[] a roadmap to citizenship for the nearly 11 million people who have been living in ... our country for years."

Passing an amnesty is a heavy lift (just ask Eric Cantor). As I explained in a recent post, however, that lift will likely get a whole lot easier if (as recent polls suggest), Biden wins the presidency, the Democrats continue to hold the House, and they capture a majority in the U.S. Senate. That will allow new Sen. Majority Leader Charles "Chuck" Schumer to eliminate the filibuster — which currently requires any bill to garner 60 votes in the Senate to proceed — and facilitate passage of an amnesty with a simple majority (which the Democrats under this forecast would have).

Drafting legislation takes time, but the new Democratic ascendency could choose one already in the can, like "The New Way Forward Act". It has 44 cosponsors in the House.

Among other things (as I explained in a February post), that bill would effectively eviscerate immigration enforcement both at the border and in the interior of the United States, limit the criminal grounds of removal so significantly that only the most extreme offenses would render criminal aliens removable, and also expand the relief available to the few aliens who would still be removable on criminal grounds.

Most shockingly (from my perspective, at least), the bill would require DHS to pay to fly an untold number of criminal aliens who have already been removed — but who would not have been under its few remaining criminal grounds of removability — back to the United States, effectively repopulating our cities and towns with criminal aliens.

Biden has already stated that he thinks most criminal aliens — including drunk drivers — should be allowed to stay in the United States, and plans on instituting a moratorium on removals by fiat for the first 100 days as he settles into the White House. He will then remove only aliens convicted of "felonies" (whatever that means) thereafter. So he likely is pretty simpatico with most if not all of that bill.

The curious thing is how little attention Biden's desire to allow criminal aliens to remain in the United States has received. A recent report from the Reuters Institute for the Study of Journalism indicates that only 39 percent of those on the left and a paltry 13 percent of those on the right in this country trust the news most of the time, however. Likely with good reason.

Convincing some of the more moderate members of the party of Andrew Jackson to agree to these drastic proposals will take time, and of course a moratorium coupled with non-enforcement of the immigration laws does little to help removable aliens live, work, and access public benefits. That is where parole in place — a procedure pushed by Sen. Harris to give status to so-called "Dreamers" (aliens who entered illegally at a young age) during her brief presidential bid — comes into play.

PIP allows DHS to give "parole" status to aliens illegally present in the United States, as well as those who are removable aliens based on their criminal status (a moratorium would have the same practical effect for those here legally, but who are removable on criminal grounds). This, in turn, allows them to obtain work authorization, and stay until some avenue to a green card opens up for them. Like, say, through an amnesty, like the "New Way Forward Act".

Now, up until the passage of S. 1790, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), PIP was a purely administrative creation — utilized by USCIS in a limited number of instances to facilitate the continued presence and adjustment of a very sympathetic group of aliens — created by the executive branch, for the executive branch. It was largely unmoored from any grounding in statute, and for that reason, vulnerable to a suit brought by a state or locality that would be adversely affected by a PIP grant or grants to block such a plan.

That is exactly what Texas and a number of other states did to block the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA, a companion to DACA). DAPA would have essentially granted indefinite status and work permits to millions of parents of U.S. citizens and LPRs who were illegally present in the United States. It also would have imposed significant costs on the states. That was what gave Texas and its fellow states standing to sue to block DAPA (successfully).

NDAA 2020, however, gave congressional imprimatur to PIP, as I explained in a December 2019 post. Therein, I forecast that you could expect this legislative sanction of PIP "to be used by a future president to grant future amnesties." Why? Because:

DACA and DAPA rested on the slim reed of "prosecutorial discretion". The next administrative action to grant status to those who entered illegally, on the other hand, will set firmly on the rock of Congress's recognition [in NDAA 2020] of the "authority of" DHS to grant "parole in place" — implicit in Congress's reaffirmation of the "importance" of that authority is Congress's conclusion that DHS has the authority to begin with.

That makes litigating against Sen. Harris's PIP proposals — if implemented — next to impossible. I note that Sen. Harris only pushed for PIP for Dreamers during her campaign. But given Biden's penchant for amnesty (and for criminal aliens), the duo would likely think bigger — much bigger.

Again, the election is still almost three months away, and a lot could change. And even if the polls are correct and the Democrats sweep, President Biden and Vice President Harris may decide to take a different path. That said, if both (and other key Democrats) are true to their word, the roadmap ahead — as described above — is almost a certainty.