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Biden’s Immigration Plan Would Be a Boon For Undocumented Kids. But the Proposal Faces A Steep, Uphill Battle

By Mark Keierleber | February 5, 2021

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With a proposed pathway to citizenship for America’s estimated 11 million undocumented residents, President Joe Biden’s immigration reform push could be lifechanging for millions of K-12 students — most of whom are themselves U.S. citizens.

But many aren’t holding their breath.

With a rash of executive orders on the first day of his presidency, Biden gave immigrant-rights groups reason to be hopeful, especially after former President Donald Trump made anti-immigrant policies the cornerstone of his administration. But they aren’t lost on the reality that comprehensive reforms must defy years of political gridlock in Washington — and that former President Barack Obama’s immigration record was, at best, mixed. In fact, an inauguration-day executive order halting most deportations for 100 days has already been put on hold by a Trump-appointed federal judge in Texas.

“Not only do we have a problem with the Congress, we have a problem with the courts,” said Patricia Gándara, a research professor at the University of California’s Graduate School of Education and co-director of The Civil Rights Project. “We’re going to be in for a big fight.”

A massive, forthcoming immigration bill, which reflects the Biden administration’s agenda, has also generated uncertainty and confusion. The legislation spearheaded by Sen. Bob Menendez, a Democrat from New Jersey, would create a pathway to citizenship for unauthorized residents who’ve been in the country since the start of the year, including an expedited timeline for farmworkers, those with temporary protected status and “Dreamers.” Yet it remains unclear whether the quick pathway would be granted to youth who are too young to qualify for the Obama-era Deferred Action for Childhood Arrivals program, which has granted work permits and deportation relief to hundreds of thousands of immigrants who were brought to the U.S. as children. A Menendez spokesperson didn’t respond to questions seeking clarification.

On his first day in office, Biden signed an executive order “preserving and fortifying” DACA after Trump fought in court for years to end it. But the order did not spell out whether the new administration has any plans to alter the DACA eligibility criteria, which several researchers and advocates called outdated. In order to qualify for the program, which went into effect in 2012, recipients had to be at least 15 years old and had to have immigrated to the U.S. before 2007. Such requirements leave out a large swath of the estimated 772,000 undocumented U.S. residents under the age of 18, said Julia Gelatt, a senior policy analyst at the Migration Policy Institute, a Washington-based think tank.

Under the legislation, Dreamers — a term often associated with DACA recipients — would become eligible for green cards immediately and for U.S. citizenship after three years. Green cards would be available to the remaining immigrants in five years and citizenship in eight.

Though the bill’s text has not yet been released beyond a bullet-point fact sheet, Gelatt said it’s possible that all young people, and not just those who currently receive DACA benefits, could be among those granted a fast track to citizenship.

“When people say Dreamer, I think fundamentally what they mean is somebody who entered the United States without authorization as a child, and people see that as a sympathetic population because they weren’t the ones making the decision” to move here, she told The 74. However, she acknowledged that Biden’s executive order on DACA “sounds like they’re trying to strengthen the legal arguments behind the current DACA program rather than expanding” it. Nearly a decade after its passage via executive order, the program remains the subject of a contentious legal battle.

Beyond age requirements, immigration policies under Trump rendered a broader definition of Dreamers even more critical, said DACA recipient Reyna Montoya, founder and CEO of Aliento, an Arizona-based nonprofit that supports undocumented youth. People who were eligible for the program but hadn’t yet received its benefits were unable to apply for the first time as the Trump administration fought to end DACA in court. Now, her group is helping eligible recipients navigate the application process. She said it’s imperative that the Biden administration provide fast-track to citizenship to DACA-eligible recipients left in limbo by Trump.

“It’s really crucial that we’re including undocumented students who are also Dreamers, who weren’t able to apply for DACA because the prior President Trump decided to end the program,” she said. “We’re actually getting quite a few number of folks who did not qualify for DACA because they came [to the U.S.] either eight days or one year after the 2007 deadline.”

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Meanwhile in a far narrower immigration reform push, this week lawmakers reintroduced the Dream Act, first introduced two decades ago, that creates a pathway to citizenship for some undocumented immigrants who came to the U.S. as children, a proposal that’s long faced setbacks in Washington but enjoys overwhelming public support. The bipartisan bill was proposed by Sens. Dick Durbin, a Democrat from Illinois, and Lindsey Graham, a Republican from South Carolina. The benefits would be available to people who came to the U.S. as children, graduate from high school or obtain a GED and work or pursue higher education, among other requirements. The legislation, which lawmakers said is identical to the bill proposed two years ago, would include immigrants who moved to the U.S. before turning 18 and have lived in the country for at least four years.

Though the Menendez bill would reach far beyond those in the Dream Act, some in the immigrant-rights community are anxious about the degree to which young people are considered and, more broadly, the extent to which Democratic lawmakers are committed to sweeping immigration reforms. Deportations surged to record highs during Obama’s first term in office, outpacing those under Trump. Acknowledging this reality, Biden has characterized Obama-era deportations as a “big mistake.”

Among those who are “cautiously optimistic” is Viridiana Carrizales, the co-founder and CEO of Immschools, a nonprofit that partners with K-12 schools to support undocumented students and their families.

Biden’s swift action on immigration “sends a super strong message” that the new administration is invested in tackling immigration reform, she said, noting that the legislation would be critical for DACA recipients who’ve fought for years to live in the U.S. without fear of deportation. But many families with younger children, she said, remain confused about where they fit in.

“It’s not very clear for me, and I know for many students, that it includes young students — young people of today,” she said. “They’re left out of DACA and are left out of this as well.”

A moment of hope

Ariadne, a 20-year-old student at Texas A&M University, is among the young people who are left out of the DACA program. She was just 13 years old when she moved to the U.S. from Mexico with her family in 2013, yet she remains ineligible for the deportation relief.

When she first came to the U.S., she recalled that her hands trembled from anxiety in school because she didn’t know how to speak English. She’s gained major confidence since then, with hopes of pursuing a Ph.D focused on immigration policy. Despite the roadblocks that come with being undocumented, she won’t be deterred from pursuing her dream. She’s OK with the possibility that DACA recipients could get a faster path to citizenship and said that Biden’s willingness to fight for immigration reform — especially so quickly in his presidency — leaves her optimistic about her own future.

“We’re going to be heard, it’s just a matter of sooner or later,” said Ariadne, who agreed to an interview on the condition that her last name be withheld because of her immigration status. “I’m being patient. The process of citizenship is so complicated — but it’s the land of opportunity for anybody who comes.”

Yet for many young people, the reality of living in the U.S. without authorization has been the source of crippling fear. UCLA’s Gándara documented this intense reaction in a recent report, finding in a survey that harsh immigration enforcement “significantly dismantles an equitable education for all students and creates a critical threat to their futures.”

“They don’t just worry, they’re terrorized,” she said. “They are crying, they’re upset, they’re not coming to school, they can’t concentrate, they’ve got all kinds of mental health problems. It’s really, really tough on these kids and then it’s tough on their teachers.”

Most of the kids who are traumatized by immigration enforcement, she emphasized, are U.S. citizens. As of 2018, there were an estimated 5.2 million children — including 4.4 million U.S.-citizen youth — living in the country with at least one undocumented parent, according to a recent Migration Policy Institute analysis. In total, they make up roughly 7 percent of the total child population of the U.S.

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Given their share of the numbers, it’s the native-born children with undocumented parents who would be most affected by the expansive immigration bill, said Gelatt of the Migration Policy Institute. Other youth-focused highlights include a provision that would provide funding to schools that serve populations of unaccompanied minors. But even after a Texas judge halted Biden’s deportation moratorium, she said Biden’s approach to immigration enforcement is a major shift from that under Trump. Under a new set of immigration enforcement priorities, only a small percentage of the undocumented population would be subject to deportation, she said, including those with serious criminal records and those who pose a national security threat.

“I don’t know how this news is filtering down to immigrant families in the United States but, for now, a U.S. citizen child probably shouldn’t be very worried that their parent could be arrested by immigration authorities,” she said. This shift in enforcement priorities — after the Trump administration “gave a sense across the United States that anybody, any unauthorized immigrant, could be arrested and deported at any time” — could “really change how immigration enforcement is carried out” moving forward.

Bill faces a wall of opposition

During a recent webinar, Menendez, the New Jersey senator, offered a sharp rebuke to those Trump-era immigration policies, declaring that Biden’s presidency represents “a new day in America.”

The Biden administration, he said, “will get our government back into the business of solving problems instead of creating them,” unlike the Trump administration, which “squandered billions on a futile border wall instead of addressing the root causes of migration.”

But he acknowledged the roadblocks in his path, both in Congress and in the courts. Sen. Marco Rubio, a Republican of Florida, called the immigration bill “a blanket amnesty for people who are here unlawfully,” while Graham, who is spearheading reintroduction of the older and more limited Dream Act, called comprehensive reform “a tough sell given this environment.” In Texas, meanwhile, state Attorney General Ken Paxton declared victory against Biden’s deportation moratorium, tweeting that the policy was “a seditious left-wing insurrection,” making comparisons to a Jan. 6 riot in the U.S. Capitol by a pro-Trump mob that left five people dead.

“As someone who has been in these battles for nearly two decades, I’m under no illusions,” Menendez said, that getting the bill to Biden’s desk will be a “a herculean task.” In order to pass the Senate, the legislation would need approval from every Democrat, Vice President Kamala Harris and nine Republicans. “But it’s important, I believe, that we start this conversation from a position of strength, to advance a bold vision for immigration reform.”

Given the Democrats’ narrow majority in the Senate, the bill is “very unlikely to pass Congress” as written, Gelatt, of the Migration Policy Institute, said. But as Biden makes his intentions clear early in his presidency, the legislation offers a “starting point” for a slew of separate bills, such as one that would enshrine DACA by law.

Biden’s early move also puts him on a different trajectory than Obama, who immigrant-rights groups famously dubbed the “Deporter in Chief,” and was accused of putting the issue on the policy backburner until late in his presidency.

It’s this reality that continues to give some immigrant-rights activists pause. Montoya of Aliento said that many young people in her network have expressed optimism about Biden’s immigration push, but they’re being cautious because you “don’t want to get your heart broken again.”

“At the end of the day, Democrats have made promises before that they haven’t kept,” she said. “There’s that level of excitement and hope about ‘There is a pathway forward, we can see it, but we don’t want to celebrate until it’s a reality.’”

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