The first Congress of the Biden era is ending with a significant list of legislative accomplishments under its belt, but Democrats will once again relinquish a House majority without delivering on immigration reform.
Though inaction on immigration reform has become a constant, the stakes are somewhat higher for the outgoing 117th Congress, as the fate of hundreds of thousands of so-called Dreamers is now in the hands of the conservative majority of the Supreme Court.
Over the past two years, a number of immigration reform bills simmered on the legislative back burner and sometimes caught flickers of national attention, but leadership never found the right time to give immigrants top billing.
House bills came early in the session
Two major immigration bills cleared the Democratic-led House in March of 2021, but the political moment to peel off the necessary ten Senate Republicans to enact a law never came.
The Dream and Promise Act would have opened legal pathways — and ultimately citizenship — for about two million recipients of the Temporary Protected Status (TPS) program and Dreamers, undocumented immigrants who arrived in the country as minors.
The Farm Workforce Modernization Act (FWMA), would have overhauled the migrant labor market, putting in place a broad deal to address deficiencies in the agricultural visa system, while implementing harsher controls to avoid hiring undocumented workers and opening a pathway to citizenship for potentially millions of agricultural laborers.
The Dream and Promise Act received unanimous Democratic support and nine Republican votes, while the FWMA passed the House with only one Democrat voting “no” and 30 Republicans voting in favor of it.
But neither the bipartisanship nor favorable public polling bolstered the bills’ momentum, and neither passed the Senate.
In the fall, President Biden attempted to push through Congress the Build Back Better Act, a $3.5 trillion economic and social package.
The bill needed no Republican support because it was moved through reconciliation, leaving Democrats to fight among themselves and ultimately reducing the size of the proposal to $1.7 trillion.
Three House Democrats, Reps. Lou Correa (Calif.), Jesús García (Ill.) and Adriano Espaillat (N.Y.), said they would not vote for the package unless it included Dreamer protections, but they were ultimately forced to scale back their demands after moderate Democrats staged a backroom campaign to minimize the bill’s immigration proposals.
Many moderates privately lobbied leadership to scale down the immigration side of the signature Democratic bill, fearing that Republicans would successfully campaign on the issue.
Ultimately, even a scaled-down version of the immigration provisions was struck down by the Senate parliamentarian, who ruled work permits were incompatible with the reconciliation process.
By the time 2022 rolled in, the two House-passed bills were frozen, with Democrats running from the immigration and border issue in an election year that was expected to yield big wins for Republicans.
Lame-duck rush
Hopes that immigration measures might move forward in a lame-duck session of Congress were lifted after Republicans underperformed expectations despite their border-centric pitch to voters.
Advocates sprung to action, pushing for legislation on the Dreamers issue and for agricultural labor. They hoped to stick the bills or major provisions of them to must-pass legislation.
Democrats threw more meat on the flame with a bill that would allow undocumented immigrants with years in the country and no criminal record to apply to regularize their papers.
Under the rolling registry bill, introduced in the House by Rep. Zoe Lofgren (D-Calif.), undocumented immigrants would be able to apply for permanent residency after seven years in the country.
The problem with all of the proposals was that none of them clearly had backing from Senate Republicans — a necessity in the evenly-divided upper chamber.
Democrats in the House also didn’t choose to prioritize a single bill.
Asked in November which bill should be prioritized, Lofgren told The Hill, “I’d do all of them. I’m not going to pick, do all of them.”
“They all have their moral imperative, so it’s really up to the Senate, we’ve done our part,” added Lofgren, the chair of the House Judiciary Immigration and Citizenship Subcommittee.
Bipartisan talks
Sens. Kyrsten Sinema – at the time an Arizona Democrat, now an independent – and Thom Tillis (R-N.C.) held negotiations to exchange Dreamer protections for enhanced immigration and border enforcement, as well as a streamlined asylum process.
That deal raised hopes temporarily, but was quickly scrapped amid the year-end rush.
Meanwhile, immigrant farm workforce negotiations between Sens. Mike Crapo (R-Idaho) and Michael Bennet (D-Colo.), which had been going on for more than a year, seemed to hit a stride before ultimately dying down.
The Crapo-Bennet negotiations, which had begun as a joint effort to make the House-passed FWMA palatable to more Republicans, ultimately ran into roadblocks as the American Farm Bureau Federation pushed Crapo in one direction and the United Farm Workers union pushed Bennet in another.
“Senator Crapo and Senator Bennet were not able to reach a bipartisan agreement on critical employer-related components of the bill, despite their best efforts,” said Marissa Morrison, Crapo’s press secretary.
Though neither Crapo nor Bennet criticized each other or the process publicly, the last-minute end to a yearlong bipartisan conversation left advocates on either side angry over the wasted effort.
The Crapo camp viewed Bennet as moving the goalposts, particularly on a critical visa cap number that the two sides haggled over, and perceived Democrats as insensitive to the political jeopardy faced by a red state Republican negotiating a deal that could have granted papers to millions of undocumented immigrants.
Immigration advocates and many growers, on the other hand, recriminated Crapo and the Farm Bureau for leaving the talks so close to the end of the session.
“You don’t win when one player quits before the work is done. The American Farm Bureau – almost alone among agricultural employers – never worked to move solutions forward,” said American Business Immigration Coalition Action Executive Director Rebecca Shi.
“This may explain why Republican Senators who represent farm states were sadly absent in advancing the bipartisan House legislation. Farm workers, farmers, and anyone in America who eats will suffer as a result.”
Title 42 and must-pass bills
Border security jumped back into the headlines again in early December as a large group of mostly Nicaraguan migrants crossed the border to El Paso, Texas — complicating talks on immigration measures.
The border issue was further inflamed by a federal judge ruling that the Biden administration had to stop implementing Title 42, a border management policy begun under former President Trump.
Under Title 42, U.S. border officials can immediately expel some migrants encountered at the border, without processing them for asylum claims.
The Biden administration has expelled foreign nationals about two million times under the policy, which was supposed to be linked to public health protections during the pandemic.
Between the uptick in border crossings and the controversy over Title 42, momentum gained by Democrats and their good showing in the midterms was essentially lost.
Republicans also had an advantage in that Democrats were eager to win passage of a long-term omnibus spending bill and the National Defense Authorization Act, as the party wanted those vehicles to become law before Republicans take over the House in January.
Ultimately, that meant most controversial proposals had to go, including immigration reform.
“Lots of good things in this omni package. Lots of good funding for my district. Yet it’s hard for me to celebrate. Given that one of my top priorities is reforma and Dreamer legislation. I’m just not feeling it,” said Correa.
