Senate Democrats are racing against the clock to try to strike an agreement with Republicans to provide a pathway to citizenship for recipients of the Obama-era Deferred Action for Childhood Arrivals program.
The program, launched in 2012, allows undocumented immigrants brought to the US as children to live and work in the United States. But its fate is uncertain amid ongoing litigation that threatens to end the policy.
President Joe Biden, who was serving as vice president when DACA was unveiled, has repeatedly expressed his support for the program and its recipients. But after nearly two years into the administration, the program – and its nearly 600,000 beneficiaries – remain in limbo.
Democrats are betting on the lame-duck session—the period after the midterms and before the new Congress begins—to try to pass legislation addressing DACA recipients before they lose their majority in the House.
“There’s a sword of Damocles over these young people’s heads,” Sen. Bob Menendez, a Democrat from New Jersey and an original co-sponsor of the bipartisan immigration bill from 2013, told CNN, citing ongoing litigation that could end the program.
“There’s no pathway forward for them if the court ultimately strikes down the whole thing, and so we can’t just wait and hope that the court will do the right thing. We really need to find a legislative fix because I think there are limited – although there are some – but there are limited things that the administration can do itself,” he added.
For years, Congress has tried and failed to pass legislation to provide a pathway to citizenship or otherwise address the immigration system. And the upcoming weeks are expected to be just as challenging.
Senate Democrats need at least 10 Republicans on board to break a filibuster and advance legislation, which is why Senate Judiciary Chairman Dick Durbin and Menendez have restarted talks within the Senate to try to get some Republicans on board to pass legislation to help DACA recipients.
In a press conference with DACA recipients last Wednesday, Durbin said he knows of “four or five” Republican senators who would support a fix but conceded “we need more.” He declined to detail what a fix would like.
“We’re going to look for the right vehicle at the right moment, but I know the timing is this: We need to get it done before the end of the year,” Durbin said.
Behind the scenes, congressional aides have been reviewing previous bipartisan border security bills over recent weeks to try to find potential middle ground to strike a DACA deal with Republicans, according to three sources familiar with discussions.
But any agreement is expected to be narrow as immigration has become increasingly contentious. A recent court ruling requiring the Biden administration to end a Trump-era policy that allowed border authorities to turn away migrants encountered at the US-Mexico border may also loom over negotiations, one source told CNN. Republicans have previously wanted a vote on the policy.
Democrats and Republicans have been sympathetic to the hundreds of thousands of undocumented immigrants who were brought to the US as children, many of whom were under the age of 10. But the give and take between Democrats and Republicans over “Dreamers” has made it difficult to achieve a bipartisan compromise.
Senate Republicans have said in the past that there needs to be stringent border security provisions and restrictions on asylum seekers included in any immigration reform proposal. Yet if Democrats agree to such an approach, they are bound to invite backlash among progressives – particularly in the House.
But while House Democrats have reiterated their support for a fix, one source told CNN: “It’s really a Senate game.”
Immigrant advocates are also ramping up the pressure, seeing the lame-duck session as likely the last window to provide protections to DACA recipients for the next two years.
“It’s about political will. When we see Republicans and Democrats act together on climate change, gun control, this is their next thing,” said Greisa Martinez Rosas, executive director at United We Dream, the largest immigrant youth-led network in the US.
DACA, created in 2012, was intended to provide temporary reprieve to undocumented immigrants who were brought to the United States as children, a group often described as “Dreamers.” Many of them are now adults.
Most recently, a federal appeals court largely upheld a lower court ruling finding the program unlawful and sent the case back.
In the absence of legislation, the Biden administration has moved to try to preserve the program. Earlier this year, the Department of Homeland Security announced a new regulation to continue the policy and replace the Obama-era memo. But the regulation is still vulnerable to litigation, leaving it up to Congress to pass permanent protection.
“Is there a willingness to find a pathway forward in what is the lame-duck? And if there is that’s the first threshold question that’s being asked now,” Menendez told CNN. “The next question is, what will it take?”
“It’s just the beginning of the conversation. We’re not like at any critical moment, like it’s either this or that. It’s just the beginning of the conversation,” Menendez added.