The ‘Dream and Promise Act of 2021’ Amnesty, Part 1

How did we get here?

By Andrew R. Arthur on June 16, 2021

Apprehensions at the Southwest border are at a 21-year high, and that’s especially true when it comes to unaccompanied alien children (UACs). Border Patrol has apprehended more UACs each month since March than it did in any single prior month for which it keeps records (back to October 2009). You may think that would mean that Democrats would want to keep their heads down and not talk about an amnesty for aliens who came as children — but you would be wrong.

On June 15, the Democrat-controlled Senate Judiciary Committee held a hearing on H.R. 6, the “American Dream and Promise Act of 2021”. This was not a mark-up of the bill, but rather more of a “listening session”. I am not sure what committee Chairman Sen. Dick Durbin (D-Ill.) expected to hear, but as I will explain in my next post, it was a disaster for its proponents.

Briefly, H.R. 6 would provide green cards (either permanent or “conditional”) to aliens who have been granted “prosecutorial discretion” under the Deferred Action for Childhood Arrivals (DACA) program, as well as to aliens who have been granted Temporary Protected Status (TPS).

TPS is a mechanism Congress created to allow the executive branch to grant temporary protection to foreign nationals already in the U.S. whose home countries are in such a state of disorder — due to war or natural calamities — that they cannot currently return safely.

It is supposed to be “temporary” (the word appears right in the title), but the protection has proven to have a political “ratchet effect”: Once turned on, it has proven all-but-nigh impossible to turn it off. Sudan (population almost 45 million), for example, was designated for TPS more than 23 years ago. El Salvador (population 6.5 million) just reached the two-decade TPS mark.

Now, I am not saying that I would prefer to decamp to either country, or that either is Switzerland. You have to ask, though, if more than 50 million people do live in those countries, why can’t their nationals return home now?

It gets worse, though. DHS is supposed to publish an annual report on the number of nonimmigrants who were temporarily (that word again) allowed to enter the United States and return to their homes. The last one was published in March 2020, and reveals that almost 200,000 Salvadorans who came on tourist (B-2) or business (B-1) visas were supposed to leave in FY 2019.

Guess what? Most did. The 1.62 percent overstay rate for El Salvador compares favorably to Paraguay (1.65 percent) and Uruguay (1.68 percent). Many of you who have vacationed in Saint Kitts and Nevis or in St. Lucia might be surprised that visitors from El Salvador are much more likely to return home than nationals of those two tropical paradises (overstay rates: 1.73 percent and 1.86 percent, respectively).

It really does not sound like El Salvador is an unsafe place to live, or for its nationals to return to.

As for DACA, that program grants quasi-legal status to aliens who entered the United States while under the age of 16 before June 15, 2007, who are currently under the age of 40, who meet certain educational standards, and have not been convicted of certain crimes.

DACA was not created by Congress, or even an executive order or executive action (for what that is worth). It was created by a memo issued by then-DHS Secretary Janet Napolitano on June 15, 2012. In my considered legal opinion, Napolitano lacked the authority to create DACA (its legality is currently being challenged in federal court in Texas), but in any event, it sets a bad precedent.

Want proof? Here is what the editorial board of the Washington Post had to say when President Obama was considering expanding DACA to include parents of U.S. citizens and lawful permanent residents in 2014:

The president should think twice. Some of the same Democrats and pro-immigrant advocates urging him to protect millions of undocumented immigrants from deportation would be outraged if a Republican president took a similarly selective approach to enforcing the laws — say, those that guarantee voting rights or prohibit employment discrimination.

Obama ignored the Post’s editorial board, and created something called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA proved to be a bridge too far for Texas and several other states, who successfully sued to block its implementation.

All of those immigrant advocates who filed similar suits to block various Trump administration executive actions (like the Migrant Protection Protocols and the travel ban for nationals of certain countries) should understand where the true blame lies: with Janet Napolitano’s June 2012 memo.

That memo certainly did not provide the legal basis for Trump’s actions (which almost exclusively rested on powers Congress had granted him under the Immigration and Nationality Act (INA)), but the memo broke certain norms, including the one that says when it comes to immigration, Congress legislates and the executive branch executes.

While Obama left Napolitano to do his dirty work, he nonetheless held a press conference on the day that memo was issued to tout it. He defended DACA by asserting that Congress needed to act to provide permanent status to the DACA population, but that in the interim his administration would act to protect them.

That misses a couple of points.

In August 2001, then-Sen. Orrin Hatch (R-Utah) introduced a bipartisan “DREAM Act”, which included among its 18 cosponsors Sen. Durbin. That bill would have granted amnesty to aliens unlawfully present for five years who entered under the age of 21, and who met certain work and educational requirements.

The timing of that bill could not have been worse, because less than six weeks later, the September 11 attacks showed how foolhardy such blanket amnesties were. Nonetheless, similar “DREAM Acts” were subsequently introduced in later Congresses.

One bears particular note. In March 2009, Sen. Durbin offered up the “DREAM Act of 2009” during the 111th Congress.

During that Congress, Obama was president, Democrats held an overwhelming majority in the House, and from September 24, 2009 (when Sen. Paul Kirk (D-Mass.) was appointed to fill the seat of the late Sen. Ted Kennedy (D-Mass.) through February 4, 2010 (when Sen. Scott Brown (R-Mass.) was elected to fill Kennedy’s seat), Democrats held a filibuster-proof majority of 60 seats in the Senate.

Obama’s fellow partisans could have passed any bill they wanted — including and in particular the DREAM Act of 2009 — without any Republican votes at all. But that bill went nowhere. Cosponsor and then-Senate Judiciary Chairman Pat Leahy (D-Vt.) did not even bring it up for a vote in committee.

That said, two Republican senators — Mel Martinez (R-Fla.) and Richard Lugar (R-Ind.) — were cosponsors of the DREAM Act of 2009, meaning that they probably would have blocked a filibuster even during the months Democrats only controlled a measly 59 seats in the upper chamber.

Obama blamed Republicans for the failure to pass a DREAM Act, but in reality the fault lies with him and congressional Democrats alone.

The popularity of legislation to “protect” the DACA population was a main talking point at the June 15, 2021, hearing, but let’s face it — if it really were all that popular, it would have been a shoo-in in the 111th Congress, and I would be writing about something else.

As for TPS, that provision was added to the INA in section 302 of the Immigration Act of 1990. Prior to the passage of that act, the executive branch had used an ad-hoc mechanism known as Extended Voluntary Departure (EVD) to grant status to aliens whose return home was not safe, due to political or environmental issues.

Because it was ad hoc, EVD was criticized for a lack of transparency as to the criteria used to designate certain aliens for protection, and there were allegations that EVD decisions were politically motivated.

To create a uniform standard for such grants, Congress created TPS. That 101st Congress apparently anticipated the aforementioned “ratchet effect” TPS would have, however, because section 244(h) of the INA requires a “supermajority” of three-fifths of all senators “duly chosen and sworn” to provide aliens granted TPS with lawful temporary or permanent resident status.

That means that Congress cannot simply give lawful permanent resident status to aliens with TPS (as title II of the Dream and Promise Act of 2021 would do). Section 244(h) of the INA requires the Senate to change its rules in order for that bill to even be brought to the floor.

While the Senate has not been shy about changing its rules midstream of late, that section of the INA reflects the fact that its drafters never meant TPS to grant permanent status to any alien. And yet, that is exactly what the sponsors of H.R. 6 intend it to do.

Here’s why that’s a problem: You can more or less expect the Biden administration to grant TPS to any nation when it deems it politically expedient — the administration has little, if any, respect for the INA, except to the degree that it allows them to admit as many aliens as they please.

A President Ron DeSantis, however, would likely be loath to extend the protection to any country in the future, even if its socio-politico situation resembles something out of Mad Max. That’s not because DeSantis is cold and uncaring (I worked for him, and personally think he is a good guy who loves his family), but because he is smart and knows that once he designates a country for TPS, interest groups will clamor for that designation to be extended long after the reasons for designation are over. And H.R. 6 will create a precedent for an uncapped number of aliens to be granted green cards.

In fact, the currently unallowable exception will become the future general rule.

Simply put, there’s never been a groundswell of support for Congress to grant amnesty to aliens brought to the United States as children, even when proponents of the idea controlled all of the levers of power. If there were one today, the Senate’s hearing would have been unnecessary. And the drafters of TPS expressly never intended — for good reason — for it to lead to permanent status in the United States.

In my next post, I will explain everything that is wrong with H.R. 6 — including the things its drafters kept carefully hidden.